6/24 - State Bar

Transcription

6/24 - State Bar

June 24, 2015 • Volume 54, No. 25
Inside This Issue
Table of Contents..................................................... 3
Announcements of Vacancies ............................... 4
Bernalillo County Metropolitan Court
U.S. District Court
Immigration Law Section: Specialty
Certification Applications Now Available .......... 5
A Message from Your State Bar President
Martha Chicoski: Mid-year Update ..................... 7
Indian Law Section Awards
$4,000 in Scholarships ............................................ 8
Clerk’s Certificates................................................. 15
From the New Mexico Supreme Court
2015-NMSC-012, No. 34,286:
Yedidag v. Roswell Clinic Corp. .................... 20
From the New Mexico Court of Appeals
2015-NMCA-040, No. 32,864:
State v. Lucero ................................................... 30
Lagoon by Andrea Cermanski (see page 3)
The William and Joseph Gallery, Santa Fe
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Ann Previe
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Small Business
Health
options
Program
Yes, you can afford to provide health
insurance for your company.
New Mexico’s SHOP is a marketplace that offers affordable health insurance
plan options for businesses with 50 or fewer employees through beWellnm.com.
You can pick your benefit level and your employees will get a choice of plans
from trusted New Mexico healthcare brands. All plans cover doctor’s visits,
prescriptions, hospital stays, maternity and more. Help is available through
Broker/Agents to understand your options and learn how easy it is to enroll.
Call us to talk with a small business expert at 1.800.204.4700
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NEW MEXICO’S HEALTH INSURANCE EXCHANGE
The project described was supported by Funding Opportunity Number IE-HBE-12-001 from the U.S Department
of Health and Human Services, Centers for Medicare & Medicaid Services. The contents provided are solely the
responsibility of the authors and do not necessarily represent the official views of HHS or any of its agencies.
2
Bar Bulletin - June 24, 2015 - Volume 54, No. 25
Table of Contents
Officers, Board of Bar Commissioners
Mary Martha Chicoski, President
J. Brent Moore, President-Elect
Scotty A. Holloman, Vice President
Dustin K. Hunter, Secretary-Treasurer
Erika E. Anderson, Immediate Past President
Board of Editors
Maureen S. Moore, Chair
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Kristin J. Dalton
Curtis Hayes
Bruce Herr
Andrew Sefzik
Mark Standridge
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • [email protected]
Communications Coordinator
Evann Kleinschmidt
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2015, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: [email protected]. • www.nmbar.org
June 24 2015, Vol. 54, No. 25
Notices .................................................................................................................................................................4
A Message from Your State Bar President Martha Chicoski ..............................................................7
Indian Law Section Awards $4,000 in Scholarships .................................................................................8
Legal Education Calendar..............................................................................................................................9
Writs of Certiorari .......................................................................................................................................... 11
Court of Appeals Opinions List.................................................................................................................. 14
Clerk’s Certificates.......................................................................................................................................... 15
Recent Rule-Making Activity...................................................................................................................... 19
Opinions
2015-NMSC-012, No. 34,286: Yedidag v. Roswell Clinic Corp. .............................................. 20
2015-NMCA-040, No. 32,864: State v. Lucero ............................................................................ 30
Advertising....................................................................................................................................................... 34
Meetings
State Bar Workshops
June
June
25
Natural Resources, Energy, and
Environmental Law Section BOD,
Noon, via teleconference
24
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
July
26
Immigration Law Section BOD,
Noon, State Bar Center
1
Divorce Options Workshop
6 p.m., State Bar Center
July
1
Employment and Labor Law Section BOD,
Noon, State Bar Center
7
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
7
Health Law Section BOD,
7 a.m., via teleconference
8
Children’s Law Section BOD,
Noon, Juvenile Justice Center
8
Taxation Section BOD,
11 a.m., via teleconference
9
Business Law Section BOD,
4 p.m., via teleconference
1
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
22
6 p.m., State Bar Center, Albuquerque
August
5
5
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
26
Cover Artist: Andrea Joy Cermanski is an artist who lives and works in Santa Fe. She has been working in acrylic and
encaustic for more than 19 years and has a bachelor’s degree in Art History and a masters in Art Education. Cermanski
has exhibited her work in five solo and nine group shows, including Feminists Under Forty, which was curated by Judy
Chicago. She is featured in E. Ashley Rooney’s Contemporary Art of the Southwest (2014), and has numerous collectors
around the country, including two corporate collections. She is currently represented by galleries in Santa Fe and San
Jose del Cabo, Mexico. View more of her work online at www.santafemodernpainter.com.
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Notices
Professionalism Tip
Court News
Administrative Office
of the Courts
With respect to the courts and other tribunals:
I will be punctual for court hearings, conferences and depositions.
Electronic Case Filing Expands
in District Courts
Starting July 1, attorneys will be required to electronically file some domestic
relations cases in district court. Free online
training about the new e-filing requirement is ongoing by Tyler Technologies
Inc., the vendor for the New Mexico
Judiciary’s File and Serve system. Also on
July 1, various issuance documents must
be filed electronically with a district court
in cases that are covered by e-filing. For the
full notice, refer to the May 13 issue of the
Bar Bulletin (Vol. 54, No. 19).
election or retention if appointed should
contact the Bureau of Elections in the Office of the Secretary of State. The Judicial
Nominating Committee will meet on July
21 at the Bernalillo County Metropolitan
Courthouse, 401 Lomas NW, Room 849,
Albuquerque, to evaluate the applicants
for this position. The Committee meeting
is open to the public and members of the
public who want to be heard about any of
the candidates will have an opportunity to
to do so.
• July 13, 5:30 p.m.
UNM School of Law, 1117 Stanford
NE, Albuquerque, Room 1119 (The
group meets the second Monday of the
month.)
• July 20, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Bernalillo County
Metropolitan Court
U.S. District Court, District of
New Mexico
Bankruptcy Law Section
One vacancy on the Bernalillo County
Metropolitan Court will exist as of Aug.
1 due to the retirement of Hon. Kevin L.
Fitzwater. The vacancy will be a Criminal
Court bench assignment, Division II.
Inquiries regarding more specific details
or the assignment of this judicial vacancy
should be directed to the chief judge or
the administrator of the court. The dean
of the UNM School of Law, designated by
the New Mexico Constitution to chair the
Bernalillo County Metropolitan Court
Nominating Committee, solicits applications for this position from lawyers who
meet the statutory qualifications in Section 34, Article 8A-4b of the New Mexico
Statutes Annotated 1978. Applications and
information related to qualifications for
the position, may be obtained from the Judicial Selection website: http://lawschool.
unm.edu/judsel/application.php. The
deadline for applications is 5 p.m., July 14.
Applicants seeking information regarding
The Judicial Conference of the U.S. has
authorized the appointment of a full-time
U.S. Magistrate Judge for the District of
New Mexico at Las Cruces. The current
annual salary of the position is $185,012.
The term of office is eight years. The full
public notice and application forms for
the magistrate judge position are posted
in the U.S. District Court Clerk’s Office
of all federal courthouses in New Mexico,
and on the Court’s website at www.nmd.
uscourts.gov. Application forms also may
be obtained by calling 575-528-1439.
Applications must be received by July 31.
All applications will be kept confidential
unless the applicant consents to disclosure.
The Bankruptcy Law Section will hold
a brown-bag seminar on bankruptcy and
taxation and, more particularly, the impact
of the 10th Circuit’s recent opinion in In re
Mallo. In that decision, the court held that
any tax debt for a late-filed tax return is
not dischargeable in bankruptcy. Attorney
James Jacobsen of the Office of the New
Mexico Attorney General and attorney
Manny Lucero of the Office of the U.S.
Attorney, will discuss Mallo and how the
IRS and the state Taxation and Revenue
Department are interpreting and applying
the decision. The seminar will be held at
noon, July 17, in the Bankruptcy Court
Clerk’s conference room on the 10th floor
of the Dennis Chavez Federal Building and
United States Courthouse, 500 Gold Avenue
SW, in Albuquerque. The seminar is free,
open to anyone interested and will last about
an hour. The legal community is invited to
bring a lunch and learn about this landmark
and controversial judicial decision.
Announcement of Vacancy
U.S. Magistrate Judge Vacancy
State Bar News
Attorney Support Groups
• July 6, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
Lunch and Learn Seminar
Regarding ‘In re Mallo’
Judicial Records Retention and Disposition Schedules
Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the
years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded.
Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who
have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits
will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by
Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and
will be destroyed by Order of the Court.
Court
10th Judicial District Court
County of Quay
575-461-2764
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Exhibits/Tapes
Tapes in Domestic Matters
For Years
1995-1999
May Be Retrieved Through
July 22, 2015
Committee on Women and the
Legal Profession
Golf Clinics Through July 16
Registration is open for the Committee on Women and the Legal Profession’s
2015 Get Golf Ready Program of weekly
golf clinics at the Sandia Golf Club. Participants will learn basic techniques from
chipping and putting to full swing and
bunker play, along with fundamental
guidelines for the use and maintenance of
golf equipment, keeping score and navigating the course. Cost is $125 per person,
including rental clubs, for the entire session, which runs each Thursday, 4–5 p.m.,
through July 16. Register at https://www.
cgmarketingsystems.com/onlineshop/
index.asp?id=10324&courseid=1083.
If you have questions, contact Jocelyn
Castillo at [email protected].
Immigration Law Section
Specialty Certification
Applications Now Available
The N.M. Board of Legal Specialization has approved certification for
Immigration Law Specialists. “This is a
huge accomplishment for our section,”
said Immigration Law Section Chair
Tania Silva. Qualifications to become a
Board Certified Specialist include being
a State Bar member in good standing and
having practiced immigration law for at
least five years. For a detailed description
of the requirements and fees as well as
the application, visit www.nmbar.org
> About Us > Sections > Immigration
Law. Send the completed application via
email to Michael DeSpain at mdespain@
nmlegalspecialization.org, by U.S. mail to
N.M. Board of Legal Specialization, PO
Box 93070, Albuquerque NM 87199-3070,
or by fax to 505-821-0220.
UNM
Law Library
Hours Through Aug. 16
Building & Circulation
Monday–Thursday 8 a.m.–8 p.m.
Friday
8 a.m.–6 p.m.
Saturday
10 a.m.–6 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Closure
July 3–4: Independence Day
Other Bars
Albuquerque Bar Association
Membership Luncheon Features
Sen. Tom Udall
U.S. Sen. Tom Udall will be the speaker
at the Albuquerque Bar Association’s
membership luncheon from noon–1:30
p.m., June 30, at the Embassy Suites
Hotel in Albuquerque. Arrive at 11 a.m.
for networking. After the luncheon from
1:45–3:45 p.m., there will be a CLE program, “Supreme Court Review” (2.0 G).
To register and for more information, visit
www.abqbar.org.
New Mexico Defense Lawyers
Association
Annual Awards Nominations
The New Mexico Defense Lawyers
Association is now accepting nominations for the 2015 NMDLA Outstanding Civil Defense Lawyer and the 2015
NMDLA Young Lawyer of the Year
awards. Nomination forms are available
online at www.nmdla.org, by emailing
[email protected] or calling 505797-6021. Deadline for nominations is
July 17. The awards will be presented at
the NMDLA Annual Meeting Luncheon
on Sept. 25 at the Hotel Andaluz in
Albuquerque.
Other News
Southwest Women’s Law
Center
Lunch-and-Learn Seminar on Rights
of Expectant/Parenting Students
Join the Southwest Women’s Law
Center for a CLE lunch-and-learn
seminar on the legal rights of expectant
and parenting students in New Mexico
schools. Learn about recent laws and
policy changes enacted to protect these
groups. The seminar will be held noon–1
p.m., June 26, at the SWLC, 1410 Coal
Ave. SW, in Albuquerque. The cost is
$10. Approval for 1 hour of general CLE
credit is pending for the program. For
more information or to register, visit
www.swwomenslaw.org.
New Mexico Taxation and
Revenue Department
Notice of Transfer to
Administrative Hearings Office
Pursuant to enacted Senate Bill 356,
on July 1 the Hearings Bureau of the
Bridge the Gap Mentorship Program
This mandatory program approved by
the N.M. Supreme Court offers new lawyers
a highly experienced attorney member to
teach real-world aspects of practice.
Both earn a full year of CLE credits.
For more information, call 505-797-6003.
Taxation and Revenue Department,
along with all personnel assigned to
the Hearings Bureau, will become the
Administrative Hearings Office. The
Administrative Hearings Office will
conduct all pending and newly filed
tax protests under the Tax Administration Act and all pending or newly filed
hearings pursuant to the Motor Vehicle
Code (including Implied Consent Act
license revocation hearings). All pending
hearings will be held before the Hearing
Officer currently assigned to the matter unless otherwise reassigned by the
Administrative Hearings Office chief
hearing officer. The mailing address for
the new Administrative Hearings Office
is PO Box 6400, Santa Fe, NM 87502.
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org > for Members >
Lawyers/Judges Assistance
5
Call For Nominations
State Bar of New Mexico 2015 Annual Awards
Nominations are being accepted for the 2015 State Bar of New Mexico Annual Awards to recognize those who
have distinguished themselves or who have made exemplary contributions to the State Bar or legal profession in
2014 or 2015. The awards will be presented Oct. 1 during the 2015 Annual Meeting—Bench and Bar Conference
at The Broadmoor in Colorado Springs, Colo. All awards are limited to one recipient per year, whether living or
deceased. Previous recipients for the past five years are listed below.
Distinguished Bar Service
Award-Lawyer
Recognizes attorneys who have provided
valuable service and contributions to the legal
profession and the State Bar of New Mexico
over a significant period of time.
Previous recipients: Carol Skiba,
Ian Bezpalko, John D. Robb Jr.,
Mary T. Torres, Dennis E. Jontz
Distinguished Bar Service
Award–Nonlawyer
Recognizes nonlawyers who have provided
valuable service and contributions to the legal
profession over a significant period of time.
Previous recipients:
Rear Admiral Jon Michael Barr (ret.),
Hon. Buddy J. Hall, Sandra Bauman,
David Smoak, Robin Gomez
Justice Pamela B. Minzner*
Professionalism Award
Recognizes attorneys or judges who, over
long and distinguished legal careers, have by
their ethical and personal conduct exemplified for their fellow attorneys the epitome of
professionalism.
Catherine T. Goldberg, Cas F. Tabor,
Henry A. Kelly, Hon. Angela J. Jewell,
Raymond Hamilton
Outstanding Legal
Organization or Program
Award
Recognizes sections, committees, local and
voluntary bars and outstanding or extraordinary law-related organizations or programs
that serve the legal profession and the public.
Corinne Wolfe Children’s Law Center
United South Broadway Corp. Fair
Lending Center
N.M. Hispanic Bar Association
UNM School of Law Clinical Law
Programs
Robert H. LaFollette*
Pro Bono Award
Presented to an attorney who has made an
exemplary contribution of time and effort,
without compensation, to provide legal assistance to people who could not afford the
assistance of an attorney.
Previous recipients: Erin A. Olson,
Jared G. Kallunki, Alan Wainwright,
Ronald E. Holmes, Ben A. Longwill
*Robert LaFollette (1900–1977), director of Legal Aid
to the Poor, was a champion of the underprivileged
who, through countless volunteer hours and personal
generosity and sacrifice, was the consummate
humanitarian and philanthropist.
Seth D. Montgomery*
Distinguished Judicial
Service Award
Outstanding Young Lawyer
of the Year Award
Awarded to attorneys who have, during the
formative stages of their legal careers by their
ethical and personal conduct, exemplified for
their fellow attorneys the epitome of professionalism; nominee has demonstrated commitment to clients’ causes and to public service,
enhancing the image of the legal profession
in the eyes of the public; nominee must have
practiced no more than five years or must be
no more than 36 years of age.
Previous recipients: Marshall J. Ray,
Greg L. Gambill, Robert L. Jucero Jr.,
Keya Koul, Christina A. Vigil
*Known for her fervent and unyielding commitment to professionalism, Justice Minzner
(1943–2007) served on the New Mexico Supreme
Court from 1994–2007.
Recognizes judges who have distinguished
themselves through long and exemplary service on the bench and who have significantly
advanced the administration of justice or
improved the relations between the bench
and bar; generally given to judges who have
or soon will be retiring.
Hon. Rozier E. Sanchez
Hon. Bruce D. Black
Justice Patricio M. Serna (ret.)
Hon. Jerald A. Valentine
Hon. James A. Hall
*Justice Montgomery (1937–1998), a
brilliant and widely respected attorney and
jurist, served on the New Mexico Supreme
Court from 1989–1994.
A letter of nomination for each nominee should be sent to Joe Conte, Executive Director, State Bar of New Mexico,
PO Box 92860, Albuquerque, NM 87199-2860; fax 505-828-3765; or email [email protected].
Deadline for Nominations: July 17
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A Message from Your State Bar President
Dear Members of the State Bar of New Mexico,
Now midway through the year as President of the State Bar, I’d like to provide an update on some
of the events and issues addressed this year by the Board of Bar Commissioners. First, I’d like to
thank those of you who have been in touch with me; I appreciate hearing your comments and
willingness to be involved in State Bar activities.
In January, at the direction of the Supreme Court, the State Bar began administering the IOLTA
Program. The State Bar also administers the pro hac vice fund, which collects fees from lawyers
wishing to practice in New Mexico from other jurisdictions. In addition, the State Bar, through
the licensing process, collects contributions from lawyers who have not met their aspirational
goal of 50 pro bono hours per year. Together, these funds generate approximately $400,000, held
in trust by the State Bar, and are distributed to legal service providers through an Access to Justice
grant process, which is approved by the Supreme Court.
With a new rule effective June 1, admission on motion is now a reality in New Mexico. Under certain conditions, lawyers from other
states may now waive into New Mexico. As part of the Rule, all admission applicants must complete a seven-hour course covering
civility and professionalism, community property and Indian law. The first course was held on June 1. The Rule also permits New
Mexico lawyers to waive in to other jurisdictions under similar terms. For a listing of reciprocal states, please visit the New Mexico
Board of Bar Examiners website at www.nmexam.org.
In March, New Mexico ended its five-year term as Secretary/Treasurer of the Western States Bar Conference. Many thanks to Joe
Conte and Kris Becker for their dedication and hard work on this successful program. Having attended the conference for the first
time in March, it is clear that they have represented our State Bar in a most favorable light on the national circuit. Their service to the
Western States Bar Conference will be missed.
On a lighter note, we held our annual CLE trip in May in the Dominican Republic. This is always an enjoyable and painless way to
earn CLE credits. Lawyers from New Mexico and other states gathered for a week of informative programming while enjoying the
beauty of the Dominican Republic. Thank you to all of those who came out to join us and to those who presented CLE classes. A big
thanks to Christine Morganti for getting the trip organized for us. And last, but certainly not least, I’d like to give a special thanks
to my firm, Glasheen, Valles & Inderman, LLP, for its support of this trip (by sending four attorneys and one partner), as well as my
State Bar duties in general.
We are also busy preparing for the State Bar’s Annual Meeting, to be held September 30 to October 2, 2015 at the beautiful Broadmoor
Resort in Colorado Springs. As I began this year, I hoped to stress the importance of a united State Bar that is welcoming and inclusive
of all members, regardless of race, gender, sexual identity or geography. The Annual Meeting is an excellent example of members
from all walks of life coming together to provide diverse and educational programs on topics of interest to all members. I am thrilled
that so many of our sections, committees, divisions, along with voluntary bars, have teamed up to provide joint CLEs. It will be an
exciting and valuable Annual Meeting and I hope you will attend. There will be plenty of time to attend CLEs, socialize, network and
enjoy all that the Broadmoor and Colorado Springs have to offer.
With half the year over, there is still much to accomplish and work toward this year. I have, and will continue to serve on the important
judicial nominating commissions to help select our judiciary. The State Bar is exploring an “incubator” (“low bono”) program for new
lawyers wishing to go into private practice. The Board and I continue to work to strengthen and improve the State Bar’s finances and
programming. Along with President-Elect Brent Moore, I look forward to representing our State Bar at the annual National Conference of Bar Presidents, which is held in conjunction with the American Bar Association’s Annual Meeting this July. None of our Bar
work would be possible without the assistance of the dedicated State Bar staff. Whenever you attend a function at or organized by the
State Bar, please be sure to thank them for their help.
Again, I thank you for this opportunity to serve as your State Bar President; it is an honor and privilege I will always carry. I look
forward to your input and thoughts throughout the remainder of the year. Please do not hesitate to contact me if either the State Bar
or I may be of service to you.
Sincerely,
Martha Chicoski, President
State Bar of New Mexico
7
T
Indian Law Section Awards
$4,000 in Scholarships
he Indian Law Section is excited
to announce it awarded $4,000
in scholarships this year to four
students at the University of New Mexico
School of Law. Third-year students Dave
Nezzie, Heidi Todacheene, Michelle Cook
and Josett Monette are recipients of the
9th Annual Bar Preparation Scholarship.
The scholarships promote the practice of
Indian law in the state and help alleviate
the costs of preparing for and taking the
New Mexico Bar Exam. The recipients were
honored at a reception hosted by the Indian
Law Section on April 30th at the Indian
Pueblo Cultural Center.
From left are Heidi Todacheene, Sarah Stevenson, Michelle Cook,
Jim Burson, Dave Nezzie, Josett Monette and Autumn Monteau.
DAVE NEZZIE is an enrolled member of the Navajo
Nation. He is a proud father of three young children. In
2014, he served as a legal intern for the U.S. Department
of the Interior in the Office of the Solicitor. Mr. Nezzie is
passionate about working in the areas of environmental,
natural resources and Indian law. In May 2015, Mr. Nezzie
graduated from the University of New Mexico School of
Law with Certificates in Indian Law and Natural Resources
and Environmental Law.
HEIDI TODACHEENE is an enrolled member of the
Navajo Nation and is originally from Farmington, N.M. In
2012, she graduated magna cum laude from the University
of New Mexico with a Bachelor of Arts in English. Ms.
Todacheene completed her clinical experience with the
Southwest Indian Law Clinic and was elected to participate
in the Morris K. Udall and Stewart L. Udall Foundation
Internship Program during the summer of 2014. In May
2015, Ms. Todacheene obtained her Juris Doctorate from
the University of New Mexico School of Law along with
her Certificate in Law of Indigenous Peoples.
MICHELLE COOK is an enrolled member of the Navajo
Nation. In 2007, Ms. Cook graduated magna cum laude from
the University of Arizona with a Bachelor of Arts in Women’s
Studies. Ms. Cook has worked both locally and globally on a
grass-roots level with indigenous peoples on a variety of issues such as access to justice, customary law, natural resources and human rights. In 2009, she was awarded a Fulbright
Fellowship to research indigenous customary law and justice
traditions in Aotearoa, New Zealand. In May 2015, Ms. Cook
obtained her Juris Doctorate from the University of New
Mexico School of Law with her Certificate in Indian Law.
JOSETT MONETTE is a member of the Turtle Band of
Chippewa Indians and grew up on the reservation in northern North Dakota. She was an active member of the Native
America Law Students Association during all three years of
law school and was the Student Liaison to the Indian Law
Section of the State Bar of New Mexico during her second
year. Before starting law school, Ms. Monette’s first career
was as a high school teacher, working on the reservation. In
May 2015, Ms. Monette obtained her Juris Doctorate from
the University of New Mexico School of Law and plans to
take the New Mexico Bar Exam in July 2015.
The Indian Law Section greatly appreciates scholarship donations from:
Alan R. Taradash • Christina West • JA Associates of NM, LLC
Johnson Barnhouse & Keegan • Sutin Thayer & Browne, PC
INDIAN LAW SECTION
8
Legal Education
June
24
Estate Planning for the Elderly, Part
2 of 2
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
26
Legal Rights Expectant and
Parenting Students
1.0 G
Albuquerque
Southwest Women’s Law Center
505-244-0502
www.swwomenslaw.org
29
Trustees: Counseling Clients
About Individual and Institutional
Alternatives
1.0 G
505-797-6020
www.nmbar.org
14
New Mexico Constitution—Current
Issues (2014)
2.0 G
Video Replay
505-797-6020
www.nmbar.org
21
Restrictive & Protective Covenants
in Real Estate
1.0 G
505-797-6020
www.nmbar.org
14
22
24–25 Attacking the Expert’s Opinion at
Deposition and Trial
6.0 G
Webinar
505-797-6020
www.nmbar.org
July
1
Outsourcing Agreements
1.0 G
505-797-6020
www.nmbar.org
2
Planning with Life Insurance Trusts
1.0 G
505-797-6020
www.nmbar.org
7
Business Planning with Series LLCs
1.0 G
505-797-6020
www.nmbar.org
14
The Brain-Smart Negotiator: Skills
and Practices for the Effective
Litigator (2015)
4.8 G, 1.2 EP
Video Replay
505-797-6020
www.nmbar.org
14
Employment and Labor Law
Institute (2014)
4.5 G, 1.5 EP
Video Replay
505-797-6020
www.nmbar.org
Ethics and Professionalism: Advice
from the Bench and Bar (2014)
2.0 EP
Video Replay
505-797-6020
www.nmbar.org
14-15 Tax Planning for Real Estate, Parts
1–2
2.0 G
505-797-6020
www.nmbar.org
15
Hydrology and Water Law
6.7 G
Santa Fe
Law Seminars International
206-567-4490
www.lawseminars.com/index.php
16–17 Natural Resource Damages
10.5 G
Santa Fe
206-567-4490
Fiduciary Duties & Liability of
Nonprofit/Exempt Organization
Directors & Officers
1.0 G
505-797-6020
www.nmbar.org
28
The 30th Annual Bankruptcy Year
in Review Seminar (2015)
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
28
2014 Probate Institute
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
9
Legal Education
www.nmbar.org
July
28
Civil Procedure Update and Recent
Developments in the U.S. Supreme
Court (2014)
3.0 G
Video Replay
505-797-6020
www.nmbar.org
28
Law Practice Succession: A Little
Thought Now, a Lot Less Panic
Later
2.0 EP
Video Replay
505-797-6020
www.nmbar.org
28-29 Business Planning with S Corps,
Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
11
20
Easements in Real Estate
1.0 G
505-797-6020
www.nmbar.org
August
4–5
Construction Agreements, Parts
1–2
2.0 G
505-797-6020
www.nmbar.org
Estate Planning with Annuities &
Financial Products
1.0 G
505-797-6020
www.nmbar.org
10–11 Energy in the Southwest
12.0 G
Santa Fe
206-567-4490
13
2015 in Age Discrimination Update
1.0 G
505-797-6020
www.nmbar.org
11
The Impact of the Legal System on
People of Color (2015)
5.5 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
14
Ethical Issues in Buying, Selling or
Transferring a Law Practice
1.0 EP
505-797-6020
www.nmbar.org
25
11
17
2015 Fiduciary Litigation Update
1.0 G
505-797-6020
www.nmbar.org
25
2015 Solo and Small Firm Institute:
Law Practice Management
3.0 G, 4.0 EP
Video Replay
505-797-6020
www.nmbar.org
11
How to Become a Rock Star Lawyer,
The Ethical Way (2014)
3.0 EP
Video Replay
505-797-6020
www.nmbar.org
Oil and Gas: From Basics to an InDepth Study (2014)
6.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbar.org
11
10
18–19 Business Divorce: When Business
Partners Part Ways, Parts 1–2
2.0 G
505-797-6020
www.nmbar.org
19
Assignment and SNDA Provisions
in Leases
1.0 G
Live Seminar and Telecast
505-797-6020
www.nmbar.org
25
New Mexico Administrative Law
Institute (2014)
4.2 G, 2.0 EP
Video Replay
505-797-6020
www.nmbar.org
2015 Ethicspalooza; Ethically
Managing Your Practice
1.0 EP
Video Replay
505-797-6020
www.nmbar.org
Skeptically Determining the Limits
of Scientific Evidence V (2014)
5.0 G, 1.5 EP
Video Replay
505-797-6020
www.nmbar.org
25
Small Business Legal Workshop
6.5 G
Video Replay
505-797-6020
www.nmbar.org
25
Estate Planning for Guardianship
and Conservatorships
1.0 G
505-797-6020
www.nmbar.org
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective June 12, 2015
Petitions for Writ of Certiorari Filed and Pending:
Date Petition Filed
State v. Alderete
COA 34,222 06/12/15
State v. Tinoco
COA 33,866 06/12/15
Kruskal v. Melliger
COA 34,229 06/12/15
State v. Lopez
COA 34,455 06/11/15
Phillips v.
N.M. Tax. & Rev. Dept. COA 33,586 06/10/15
No. 35,345 State v. Medina
COA 34,163 06/10/15
No. 35,344 State v. Vargas
COA 34,046 06/10/15
No. 35,343 State v. Amaya
COA 34,186 06/10/15
No. 35,333 State v. Lopez
COA 32,773 06/08/15
COA 34,183 06/08/15
No. 35,332 State v. Morgan
No. 35,331 Moya v. City of ABQ
COA 34,349 06/05/15
COA 34,130 06/04/15
No. 35,329 State v. Jim
No. 35,328 State v. Garcia
COA 34,407 06/04/15
12-501 06/03/15
No. 35,335 Chavez v. Hatch
No. 35,327 State v. Martinez
COA 34,268 06/03/15
No. 35,321 N.M. Tax. & Rev. Dept. v.
COA 32,940 05/29/15
Maestas
No. 35,317 State v. Jimenez
COA 34,016 05/29/15
No. 35,309 Gomez-Leon v. AT&T COA 33,912 05/29/15
COA 33,419 05/27/15
No. 35,255 State v. Tufts
NO, 35,253 State v. Paul
COA 33,319 05/27/15
COA 33,501 05/22/15
No. 35,310 State v. Jake
No. 35,308 Montano v. Howes
COA 34,225 05/21/15
COA 34,291 05/21/15
No. 35,307 State v. Maez
No. 35,306 State v. Pedro M.
COA 34,452 05/20/15
COA 34,314 05/20/15
No. 35,305 State v. Raymond M.
No. 35,304 State v. Mata
COA 34,153 05/20/15
COA 34,145 05/20/15
No. 35,303 State v. Enriquez
No. 35,300 Marquez v. Herrera
COA 34,142 05/19/15
COA 34,205 05/19/15
No. 35,299 State v. Salazar
No. 35,298 State v. Holt
COA 33,090 05/19/15
COA 33,821 05/19/15
No. 35,249 Kipnis v. Jusbasche
No. 35,301 State v. Ortiz
COA 33,742 05/18/15
No. 35,214 Montano v. Frezza
COA 32,403 05/18/15
No. 35,296 State v. Tsosie
COA 34,351 05/15/15
No. 35,295 State v. Renteria
COA 34,093 05/14/15
No. 35,294 Khalsa v. Puri
COA 33,622 05/13/15
No. 35,290 Olson v. N.M. Water Quality Control
Comm COA 33,238/33,237/33,245 05/08/15
No. 35,285 State v. Henderson
COA 34,377 05/08/15
No. 35,282 State v. Leyba
COA 34,177 05/08/15
No. 35,279 Gila Resource v. N.M. Water Quality Control
COA 33,238/33,237/33,245 05/08/15
Com
No. 35,289 NMAG v. N.M. Water Quality Control
Comm COA 33,238/33,237/33,245 05/07/15
No. 35,286 Flores v. Herrera COA 32,693/33,413 05/07/15
Response filed 5/21/15
No. 35,284 State v. Puente
COA 33,806 05/07/15
No. 35,283 State v. Sanchez
COA 32,664 05/07/15
No. 35,278 Smith v. Frawner
12-501 05/07/15
No. 35,351
No. 35,350
No. 35,348
No. 35,346
No. 35,349
No. 35,281
No. 35,275
No. 35,271
No. 35,143
No. 35,276
No. 35,274
No. 35,273
No. 35,272
No. 35,270
No. 35,268
No. 35,269
No. 35,266
No. 35,265
No. 35,258
No. 35,261
No. 35,239
No. 35,238
No. 35,237
No. 35,236
No. 35,177
No. 35,176
No. 35,175
No. 35,174
No. 35,173
No. 35,166
No. 35,248
No. 35,248
No. 35,247
No. 35,246
No. 35,235
No. 35,234
No. 35,233
No. 35,232
No. 35,172
No. 35,171
No. 35,170
No. 35,165
No. 35,262
No. 35,244
No. 35,297
No. 35,241
No. 35,230
No. 35,169
No. 35,167
No. 35,227
No. 35,168
State v. Pacheco
COA 34,178
Firstenberg v. Monribot COA 32,549
Cunningham v. State
12-501
Simms v. State
12-501
State v. Doliber
COA 34,202
State v. Miller
COA 33,838
State v. Gallion
COA 34,018
State v. Dinapoli
COA 33,004
State v. Bersane
COA 34,094
Chip v. Chip
COA 33,958
Peterson v. Ortiz
12-501
Guy v.
12-501
N.M. Dept. of Corrections
Burke v.
COA 33,824/33,825/33,826
Jones
State v. Thompson
COA 34,137
Trujillo v. Hickson
12-501
State v. Woodard
COA 34,009
State v. Davidson
COA 32,795
State v. Martinez
COA 33,994
State v. Rodriguez
COA 34,125
State v. Campbell
COA 33,695
State v. Reyes
COA 33,059
State v. Putnam
COA 34,213
State v. Davenport
COA 33,546
State v. Garza
COA 34,072
State v. Tohsonie
COA 33,157
Duran v. Frawner
12-501
AFSCME Council 18 v.
Bernalillo Cty. Comm. COA 33,706
State v. Young
COA 33,751
State v. Aldaco
COA 33,799
State v. Campbell
COA 33,693
State v. Blackwater
COA 33,710
State v. Aldaco
COA 33,811
State v. Shorty
COA 34,049
State v. Lydia A. COA 32,877/32,884
State v. Cuffee
COA 32,797
State v. Jimenez
COA 33,158
State v. Hobbs
COA 33,389
Sena v. Board of Finance
12-501
State v. Chico
COA 33,490
Montano v. Frezza
COA 32,403
Rodriguez v.
COA 33,138/33,668
Williams
Response ordered; filed 6/8/15
Turner v.
COA 33,303
First N.M. Bank
State v. Bouldin
COA 34,214
State v. Campbell
COA 33,128
Romero v. Frawner
12-501
State v. Garcia
COA 32,161
05/06/15
05/06/15
05/06/15
05/06/15
05/05/15
05/05/15
05/04/15
05/04/15
05/04/15
05/01/15
04/29/15
04/30/15
04/29/15
04/28/15
04/23/15
04/23/15
04/23/15
04/23/15
04/23/15
04/23/15
04/23/15
04/23/15
04/23/15
04/23/15
04/23/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/22/15
04/20/15
04/20/15
04/18/15
04/17/15
04/16/15
04/16/15
04/16/15
04/15/15
04/13/15
11
Writs of Certiorari
No. 35,225
No. 35,213
No. 35,212
No. 35,217
No. 35,205
No. 35,159
No. 35,106
No. 35,097
No. 35,084
No. 35,040
No. 35,099
No. 35,068
No. 34,937
No. 34,932
No. 34,881
No. 34,913
No. 34,907
No. 34,885
No. 34,878
No. 34,680
No. 34,777
No. 34,790
No. 34,793
No. 34,775
No. 34,739
No. 34,706
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Baca v. State
12-501
Hilgendorf v. Chen
COA 33056
Guerin v. State
12-501
Hernandez v. Horton
12-501
Sotelo v. State
12-501
Jacobs v. Nance
12-501
Salomon v. Franco
12-501
Marrah v. Swisstack
12-501
Branch v. State
12-501
Montoya v. Wrigley
12-501
Keller v. Horton
12-501
Jessen v. Franco
12-501
Pittman v.
N.M. Corrections Dept.
12-501
Gonzales v. Sanchez
12-501
Paz v. Horton
12-501
Finnell v. Horton
12-501
Cantone v. Franco
12-501
Savage v. State
12-501
O’Neill v. Bravo
12-501
Wing v. Janecka
12-501
State v. Dorais
COA 32,235
Venie v. Velasquz
COA 33,427
Response ordered; due 8/22/14
Isbert v. Nance
12-501
State v. Merhege
COA 32,461
Holguin v. Franco
12-501
Camacho v. Sanchez
12-501
Benavidez v. State
12-501
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Response ordered; due 10/24/12
Utley v. State
12-501
04/09/15
04/06/15
04/06/15
04/03/15
04/01/15
03/12/15
02/04/15
01/26/15
01/16/15
12/15/14
12/11/14
11/25/14
10/20/14
10/16/14
10/08/14
09/22/14
09/11/14
09/08/14
08/26/14
07/14/14
07/02/14
06/27/14
06/23/14
06/19/14
05/21/14
05/13/14
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but Not Yet Submitted to the Court:
(Parties preparing briefs) No. 33,725 State v. Pasillas
No. 33,877 State v. Alvarez
No. 33,930 State v. Rodriguez
No. 34,363 Pielhau v. State Farm
No. 34,274 State v. Nolen
No. 34,443 Aragon v. State
No. 34,522 Hobson v. Hatch
No. 34,582 State v. Sanchez
No. 34,694 State v. Salazar
12
Date Writ Issued
COA 31,513 09/14/12
COA 31,987 12/06/12
COA 30,938 01/18/13
COA 31,899 11/15/13
12-501 11/20/13
12-501 02/14/14
12-501 03/28/14
COA 32,862 04/11/14
COA 33,232 06/06/14
No. 34,669
No. 34,650
No. 34,784
No. 34,726
No. 34,668
No. 34,855
No. 34,728
No. 34,812
No. 34,886
No. 34,866
No. 34,854
No. 34,830
No. 34,826
No. 34,997
No. 34,993
No. 34,978
No. 34,946
No. 34,945
No. 34,940
No. 34,929
No. 35,063
No. 35,035
No. 35,016
No. 34,974
No. 35,069
No. 35,049
No. 35,130
No. 35,101
No. 35,148
No. 35,198
No. 35,183
No. 35,145
No. 35,121
No. 35,116
No. 34,949
Hart v. Otero County Prison 12-501
Scott v. Morales
COA 32,475
Silva v. Lovelace Health
Systems, Inc.
COA 31,723
Deutsche Bank v.
Johnston
COA 31,503
State v. Vigil
COA 32,166
Rayos v. State
COA 32,911
Martinez v. Bravo
12-501
Ruiz v. Stewart
12-501
State v. Sabeerin COA 31,412/31,895
State v. Yazzie
COA 32,476
State v. Alex S.
COA 32,836
State v. Mier
COA 33,493
State v. Trammel
COA 31,097
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
Atherton v. Gopin
COA 32,028
State v. Kuykendall
COA 32,612
State v. Kuykendall
COA 32,612
State v. Flores
COA 32,709
Freeman v. Love
COA 32,542
State v. Carroll
COA 32,909
State v. Stephenson
COA 31,273
State v. Baca
COA 33,626
Moses v. Skandera
COA 33,002
Arencon v.
City of Albuquerque
COA 33,196
State v. Surratt
COA 32,881
Progressive Ins. v. Vigil COA 32,171
Dalton v. Santander
COA 33,136
El Castillo Retirement Residences v.
Martinez
COA 31,701
Noice v. BNSF
COA 31,935
State v. Tapia
COA 32,934
State v. Benally
COA 31,972
State v. Chakerian
COA 32,872
State v. Martinez
COA 32,516
State v. Chacon
COA 33,748
06/06/14
06/06/14
08/01/14
08/29/14
09/26/14
10/10/14
10/10/14
10/10/14
10/24/14
10/24/14
10/24/14
10/24/14
10/24/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
01/26/15
01/26/15
01/26/15
01/26/15
02/27/15
02/27/15
03/23/15
03/23/15
04/03/15
05/11/15
05/11/15
05/11/15
05/11/15
05/11/15
05/11/15
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196 08/28/13
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088 09/11/13
No. 33,884 Acosta v. Shell Western Expl.
and Prod., Inc.
COA 29,502 10/28/13
No. 34,013 Foy v. Austin Capital
COA 31,421 11/14/13
No. 34,085 Badilla v. Walmart
COA 31,162 12/04/13
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244 12/09/13
No. 34,093 Cordova v. Cline
COA 30,546 01/15/14
Writs of Certiorari
No. 34,287
No. 34,122
No. 34,546
No. 34,501
No. 34,554
No. 34,613
No. 34,548
No. 34,526
No. 34,549
No. 34,798
Hamaatsa v.
Pueblo of San Felipe
COA 31,297
State v. Steven B. consol. w/
State v. Begaye
COA 31,265/32,136
N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026
Snow v. Warren Power
COA 32,335
Miller v. Bank of America COA 31,463
Ramirez v. State
COA 31,820
State v. Davis
COA 28,219
State v. Paananen
COA 31,982
State v. Nichols
COA 30,783
State v. Maestas
COA 31,666
03/26/14
08/11/14
08/13/14
10/01/14
11/10/14
12/17/14
01/14/15
01/14/15
02/25/15
03/25/15
No. 34,637
No. 34,630
No. 34,789
No. 34,995
No. 34,400
No. 34,843
State v. Serros
State v. Ochoa
Tran v. Bennett
State v. Deangelo M.
State v. Armijo
State v. Lovato
COA 31,975
COA 31,243
COA 32,677
COA 31,413
COA 32,139
COA 32,361
04/13/15
04/13/15
04/13/15
05/11/15
05/13/15
05/18/15
Petition for Writ of Certiorari Denied:
None
Date Order Filed
13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Published Opinions
No. 33669 2nd Jud Dist Bernalillo CV-11-10129, CV-11-5295, C DOLLENS v WELLS FARGO
06/09/2015
(affirm in part, reverse in part and remand)
No. 32521 2nd Jud Dist Bernalillo CR-09-1880, STATE v J BAILEY (affirm)
06/09/2015
No. 33813 2nd Jud Dist Bernalillo CV-08-10878, I ARMENTA v A HORNER (reverse and remand
06/10/2015
No. 32820 1st Jud Dist Rio Arriba CR-11-163, STATE v J CORDOVA (reverse and remand
06/11/2015
Unublished Opinions
No. 29868 2nd Jud Dist Bernalillo CR-08-956, STATE v A VASQUEZ (affirm in part and remand
06/08/2015
No. 33640 2nd Jud Dist Bernalillo CR-12-963, STATE v K KUENSTLER (affirm)
06/09/2015
No. 33996 9th Jud Dist Curry CV-13-361, A PARRISH v CITY OF CLOVIS (affirm)
06/09/2015
No. 34358 11th Jud Dist San Juan CR-13-923, STATE v D OAKES (affirm)
06/09/2015
No. 34372 8th Jud Dist Colfax CV-14-45, L MONTOYA v COLFAX COUNTY (affirm)
06/09/2015
No. 34455 5th Jud Dist Lea CR-10-294, STATE v N LOPEZ (affirm)
06/09/2015
No. 33918 2nd Jud Dist Bernalillo CV-13-9843, C BLANCH v CUSTOM PLUMBING (affirm)
06/10/2015
No. 33866 6th Jud Dist Luna CR-11-96, STATE v R TINOCO (affirm)
06/11/2015
No. 34249 2nd Jud Dist Bernalillo CV-14-1485, M BAGLEY v GATEWAY MORTGAGE (affirm)
06/11/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
14
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Dated June 5, 2015
Clerk’s Certificate
of Address and/or
Telephone Changes
Jennifer Leigh Collins
212 St. Tropez Drive
Southlake, TX 76092
[email protected]
Lilia Doibani
35 E Street NW, Apt. 308
Washington, DC 20001
[email protected]
Brooke Gamble
432 Galisteo Street
Santa Fe, NM 87501
505-988-1181
[email protected]
Donna J. Griffin
3112 Carlota Road NW
Albuquerque, NM 87104
505-768-4536
505-768-4440 (fax)
[email protected]
Nicholas Lemon Kennedy III
2715 Bosque Del Sol Lane NW
575-219-9665
[email protected]
Clerk’s Certificate of
Admission
On June 1, 2015:
Sarah J. Arellano
Franklin D. Azar
& Associates, PC
14426 E. Evans Avenue
Aurora, CO 80014
303-757-3300
303-759-5203 (fax)
[email protected]
Withdrawal
Effective May 28, 2015:
Linda Susan Bloom
13170 Central Ave. SE,
Suite B #318
505-200-0815
Erika N. Poindexter
Poindexter Law LLC
108 Wellesley Drive SE
505-881-8186
505-899-6309 (fax)
[email protected]
Steven James Forsberg
Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
505-796-4405
505-841-5134 (fax)
[email protected]
Dustin K. Hunter
Kraft & Hunter, LLP
PO Box 850
111 W. Third Street
Roswell, NM 88202
575-625-2000
877-250-2760 (fax)
[email protected]
Katherine Loewe
U.S. District Court - District
of New Mexico
333 Lomas Blvd. NW, Suite 760
katherine_loewe@nmcourt.
fed.us
Effective April 10, 2015:
Stephen Charnas
212 High Street NE
Effective June 1, 2015:
James Frederick Hart
908 Colonial Parkway
Clovis, NM 88101
Effective May 15, 2015:
Stephen Rose
420 Valverde Commons Drive
Taos, NM 87571
PO Box 2112
107 Plaza Garcia, Suite 7
Taos, NM 87571
Emily Luke
Harvey and Foote
Law Firm, LLC
201 Broadway Blvd. SE
505-254-0000
505-254-1111 (fax)
[email protected]
Rosario D. Vega Lynn
Vega Lynn Law Offices, LLC
PO Box 65513
505-227-5091 (phone and fax)
[email protected]
Albert G. Simms III
PO Box 681
1329F Paseo del Pueblo Sur
Taos, NM 87571
575-758-0220
575-758-0593 (fax)
[email protected]
Robert F. Thorson
11416 Desert Classic Lane NE
505-401-3287
[email protected]
Name Change
As of May 19, 2015
Jenessa Nicole Garay f/k/a
Jenessa Nicole Reyes
Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
505-369-3600
505-796-4661 (fax)
Joshua Carpenter
([email protected])
Bryan Arthur Collopy
(bcollopy@carpenterlawnm.
com)
Rebecca Susan Mulcahy
(rmulcahy@carpenterlawnm.
com)
Betsy Rose Salcedo
(bsalcedo@carpenterlawnm.
com)
Carpenter & Associates, PC
4700 Montgomery Blvd. NE,
Suite 300
505-243-0065
505-243-0067 (fax)
Michael J. Cadigan
([email protected])
Kristina Caffrey
([email protected])
Cadigan Law Firm, PC
3840 Masthead Street NE
505-830-2076
505-830-2385 (fax)
As of May 21, 2015
Eleanor B. Maciag f/k/a
Eleanor Brogan
Maine Commission on
Indigent Legal Services
154 State House Station
Augusta, ME 04333
207-287-3258
207-287-3293 (fax)
[email protected]
15
of Reinstatement to
Active Status
As of June 8, 2015:
Denise Laktas Howell
129 Rio Seco
Santa Fe, NM 87501
U.S. District Court District Court
106 S. Federal Place
Santa Fe, NM 87501
505-988-6330
[email protected]
Admission
On June 1, 2015:
Mark Chad Abramson
Robison, Curphey
& O’Connell, LLC
Four SeaGate, 9th Floor
Toledo, OH 43604
419-418-6948
419-249-7911 (fax)
[email protected]
Gordon James Apple
Law Offices of
Gordon J. Apple, PC
787 Osceola Avenue, Suite 400
St. Paul, MN 55105
651-292-1524
651-292-1543 (fax)
[email protected]
Caryn Lisa Carson
6926 Colfax Drive
Dallas, TX 75231
214-343-2796
[email protected]
16
In Memoriam
As of June 8, 2015:
Heidi Macdonald
New Mexico Legislature
Legislative Education Study
Committee
325 Don Gaspar Avenue,
Suite 200
Santa Fe, NM 87501
505-986-4591
[email protected]
As of June 8, 2015:
Lincoln Browning Quintana
777 Santa Victoria
Solana Beach, CA 92075
410 Whitewood Pl.
Encinitas, CA 92024
619-943-7417
Jonathan A. Cohen
DLA Piper LLP (US)
1720 Central Street, Apt. 213
Evanston, IL 60201
847-477-7861
[email protected]
William Peyton George
George Legal PLLC
907 Old Santa Fe Trail
Santa Fe, NM 87505
505-984-2133
505-992-8727 (fax)
peyton@newcapitolsolutions.
com
Kathryn L. Leonard
Law Offices of
Kathryn Leonard
7540 N. 181st Avenue
Waddell, AZ 85355
623-933-8472
kathryn.leonard@
libertymutual.com
Leonard R. Grossman
Craig, Terrill, Hale &
Grantham, LLP
9816 Slide Road, Suite 201
Lubbock, TX 79429
806-686-1230
806-744-2211 (fax)
[email protected]
John D. Sloan Jr.
PO Box 2909
101 E. Whaley Street (75601)
Longview, TX 75606
903-757-7000
903-757-7574 (fax)
[email protected]
Donald Mark Davis
Craddock Davis & Krause LLP
3100 Monticello Avenue,
Suite 550
Dallas, TX 75205
214-750-3550
214-750-3551 (fax)
[email protected]
John Robert Emery
825 Calle Mejia #923
Santa Fe, NM 87501
505-827-7747
[email protected]
Paul L. Fourt Jr.
Law Office of Paul Fourt Jr.
1000 E. Van Buren Street
Brownsville, TX 78520
956-545-7042
956-574-0227 (fax)
[email protected]
As of May 9, 2015:
Craig D. Platz
PO Box 584
Placitas, NM 87043
As of June 8, 2015:
Jo Anne Shanks
PO Box 2395
Taos, NM 87571
1775 E. Buck Ridge Place
Oro Valley, AZ 85737
520-297-0902
[email protected]
Christopher D. Johnson
McKool Smith PC
600 Travis Street, Suite 7000
Houston, TX 77002
713-485-7300
[email protected]
Geoffrey Mark Trachtenberg
Levenbaum Trachtenberg
362 N. Third Avenue
Phoenix, AZ 85003
800-433-5336
602-271-4018 (fax)
[email protected]
Christopher Garrett King
Hampton & King
3 Riverway, Suite 910
Houston, TX 77056
713-658-0231
713-650-6458 (fax)
[email protected]
Paul A. Zebrowski
Zebrowski Law
45952 Schoenherr Road
Shelby Township, MI 48315
586-566-7266
586-566-6898 (fax
[email protected]
of Change to Inactive
Status
Eli Brotman
150 East Robinson Street,
Unit 807
Orlando, FL 32801
[email protected]
Andrew E. Glaze
Hameline & Eccleston, LLP
1700 Pacific Avenue, Suite 2460
Dallas, TX 75201
214-953-1616
[email protected]
128 Marilyn Jayne Drive
Rockwall, TX 75087
214-534-8142
[email protected]
of Suspension
Widu Gashaw Abate
13099 Westheimer Road,
Apt. 2607
Houston, TX 77077-5582
Burt L. Burnett
Burnett Law Firm
342 Cedar Street
Abilene, TX 79601-5722
Michael Sean Casey
720 Fruit Avenue NW
Albuquerque, NM 87102-2031
Brian Matthew Catalano
Cotton Bledsoe Tighe &
Dawson
500 W. Illinois Avenue,
Suite 300
Midland, TX 79701-4337
of Reinstatement to
Active Status
Burt L. Burnett
Burnett Law Firm
342 Cedar Street
Abilene, TX 79601
325-673-4357
325-428-0428 (fax)
Michael Sean Casey
720 Fruit Avenue NW
505-247-3159
Michael Gabbrielli
Horses for Heroes
New Mexico, Inc.
PO Box 1882
3774 N.M. 14 (87508)
Santa Fe, NM 87504
215-840-4117
[email protected]
2816 Silver Avenue SE, Apt. A
Ann Elizabeth Chavez
Sandia National Laboratories
12201 Apache Avenue NE
Sandia National Laboratories
PO Box 5800
Richard J. Deaguero
5001 Spring Valley Road,
Suite 400E
Dallas, TX 75244-3947
3626 N. Hall Street, Suite 704
Dallas, TX 75219
Sarah L. Fagin
Think Cash
4150 International Plaza,
Suite 300
Fort Worth, TX 76109-4819
3880 Hulen Street, Suite 500
Fort Worth, TX 79107
Thomas R. Fischer
The Fischer Law Firm
620 N. Grant Avenue,
Suite 903
Odessa, TX 79761-4547
David Elias Idinopulos
Elias Law, P.C.
111 Isleta Blvd. SW, Suite A
505-221-6000
480-779-1329 (fax)
[email protected]
As of June 12, 2015:
Giulia Miller Urquhart
1124 Piedra Rondo
Santa Fe, NM 87501
505-913-0383
[email protected]
1100 Lanes End NW
Lee Roy Montion
1514 10th Street
Alamogordo, NM 88310
575-443-1111
575-443-1775 (fax)
[email protected]
Law Offices of Lee R.
Montion
9001 Dyer Street
El Paso, TX 79904
D. Diego Zamora
The Zamora Law Firm, LLC
2011 Botulph Road, Suite 200
Santa Fe, NM 87505
505-986-2845
505-986-2811 (fax)
[email protected]
Christopher G. Nevins
206 W. Main Street
Fredericksburg, TX 78624
830-990-0557
830-990-0559 (fax)
[email protected]
Michael Gabbrielli
Horses for Heroes New
Mexico
2816 Silver Avenue SE Apt. A
Mexico
PO Box 1882
Santa Fe, NM 87504
Mexico
3774 NM 14
Santa Fe, NM 87508
John G. George Jr.
The Cobega Law Firm
6360 E. Sahara Avenue,
Apt. 2118
Las Vegas, NV 89142-2864
Paul D. Gerber
Gerber & Bateman PA
PO Box 2325
Santa Fe, NM 87504-2325
Gerber & Bateman PA
Santa Fe, NM 87505
Mark Evan Gordon
9915 Amigante Drive NE
1303 Tijeras Avenue NW
Kevin Grzebielski
U.S. District Court
100 N. Church Street
Las Cruces, NM 88001-3572
Jason T. Hoggard
2721 Royal Street
North Las Vegas, NV
89030-3890
John Howard
Howard Law Firm
223 N. Guadalupe Street #533
Santa Fe, NM 87501-1868
David Elias Idinopulos
Elias Law PC
111 Isleta Blvd. SW, Suite A
Anna L. Juarez
Parenting Plus
PO Box 1056
17
Steven Lehrbass
Landrith Lehrbass & Suazo LLP
318 Alexander Drive
Hammond, LA 70401-2232
Andrew J. Malone
1202 S. Missouri Avenue
Roswell, NM 88203-3749
Office of the District Attorney
920 Salazar Road, Suite A
Taos, NM 87571
Rudy Martin
PO Box 2668
Espanola, NM 87532-4668
Aaron Bayliss Michelsohn
3232 Rosedale Avenue
Dallas, TX 75205-1456
Law Offices of
Joyce W. Lindauer
8140 Walnut Hill Lane,
Suite 301
Dallas, TX 75231
Matthew Jacob Milson
12533 Paseo Lindo Drive
El Paso, TX 79928-5836
Mary R. Montgomery
505 S. Orange Avenue, Unit 301
Sarasota, FL 34236-7565
18
Lee Roy Montion
Law Offices of Lee R. Montion
9001 Dyer Street
El Paso, TX 79904-1405
1514 10th Street
Alamogordo, NM 88310
Christopher G. Nevins
206 W. Main Street
Fredericksburg, TX
78624-3710
James T. Perry Jr.
James T Perry Jr & Associates
PO Box 56567
David Proper
Proper Law Firm LLC
PO Box 6337
345 N. Water Street
Las Cruces, NM 88001
Lakeisha Heard Reinke
3512 Georgia Street NE
6012 Brenda Avenue NE
Casey F. Rickard
Klosek & Associates
5310 Schuler Street
Rodey Law Firm
PO Box 1888
Daniel M. Salazar
500 Oak Street NE, Suite 212
Paul Phillip Strange
The Strange Law Firm PC
883 N. Yacht Club Drive
Eden, UT 84310-9668
PO Box 750
Eden, UT 84310
Stephen E. Tinkler
Tinkler Law Firm
309 Johnson Street
Santa Fe, NM 87501-1828
Roberto Antonio Valenzuela
7208 Glen Forest Drive
Greenville, SC 29607-6112
203 W. Faris Road
Greenville, SC 29605
Melanie Pierce Walker
Latham & Watkins
333 Swarthmore Avenue, Apt 5
Pacific Palisades, CA
90272-4616
1818 Kemper Street
Los Angeles, CA 90065
Gregory S. Wheeler
8124 Camino Paisano NW
City of Albuquerque
Legal Dept.
PO Box 2248
Mary Irwin Wilson
Law Office of Clem Lyons
1 Deep Hollow Drive
Boerne, TX 78006-9413
126 Villita
San Antonio, TX 78205
Jenna R. Yanez
PO Box 22876
Santa Fe, NM 87502-2876
Administrative Office
of the Courts
237 Don Gaspar Avenue,
Room 25
Santa Fe, NM 87501
D. Diego Zamora
The Zamora Law Firm, LLC
Santa Fe, NM 87505
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Pending Proposed Rule Changes
Open for Comment:
Comment Deadline
Recently Approved Rule Changes Since
Release of 2015 NMRA:
Comment Deadline
For 2014 year-end rule amendments that became effective December 31, 2014, and which now appear in the 2015 NMRA, please
see the November 5, 2014, issue of the Bar Bulletin or visit the
New Mexico Compilation Commission’s website at http://www.
nmcompcomm.us/nmrules/NMRuleSets.aspx.
Rule No. Set/Title
Effective Date
Uniform Jury Instructions-Criminal
14 602
14 603
14 604
14 605
14 610
14 611
14 612
14 615
14 621
14 622
14 623
14 625
Withdrawn
Withdrawn
Withdrawn
Withdrawn
Withdrawn
Chart
Child abuse not resulting in death or great
bodily harm; essential elements
Child abuse resulting in great bodily harm;
essential elements
Child abuse resulting in death; child at least
12 but less than 18; essential elements
Child abuse resulting in death; reckless
disregard; child under 12; essential elements
Child abuse resulting in death; intentional
act; child under 12; essential elements
Jury procedure for various degrees of
child abuse resulting in death of a child
under twelve years of age
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
04/03/15
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
19
Advance Opinions
http://www.nmcompcomm.us/
Opinion Number: 2015-NMSC-012
EMRE YEDIDAG, M.D.,
Plaintiff-Respondent,
v.
ROSWELL CLINIC CORP. and ROSWELL HOSPITAL CORP.,
Defendants-Petitioners
No. 34,286 (filed February 19, 2015)
ORIGINAL PROCEEDING ON CERTIORARI
FREDDIE JOSEPH ROMERO, District Judge
KEN SLAVIN
CLARA B. BURNS
SHELLY W. RIVAS
KEMP SMITH, L.L.P.
El Paso, Texas
WILLIAM C. MADISON
MADISON & MROZ, P.A.
Albuquerque, New Mexico
for Petitioners
STEPHEN DURKOVICH
Opinion
Edward L. Chávez, Justice
{1}Respondent Dr. Emre Yedidag was
an employee-physician for Roswell Clinic
Corp. and Roswell Hospital Corp. (Eastern
New Mexico Medical Center). During the
peer review of another Eastern employeephysician, Dr. Akbar Ali, Dr. Yedidag
questioned Dr. Ali because Dr. Ali was
not forthcoming concerning his role in
a patient’s death. Members of Eastern’s
executive team reported the exchange to
the hospital administration, which precipitated the termination of Dr. Yedidag’s
employment for unprofessional conduct.
Dr. Yedidag then filed a complaint against
Eastern for utilizing confidential peer
review information to justify his termination. A jury determined that Eastern violated the New Mexico Review Organization Immunity Act (ROIA), NMSA 1978,
Sections 41-9-1 to -7 (1979, as amended
through 2011), and concluded that this
violation proximately caused Dr. Yedidag’s damages. The jury also concluded
that Eastern breached its employment
contract with Dr. Yedidag by terminating
him for his participation in a peer review.
20
STEVEN L. TUCKER,
TUCKER LAW FIRM, P.C.
Santa Fe, New Mexico
MARK CLINTON DOW
SIMONE M. SEILER
BAUMAN, DOW & LEÓN, P.C.
JANE B. YOHALEM
LAW OFFICE OF JANE B. YOHALEM
for Respondent
The jury awarded both compensatory and
punitive damages to Dr. Yedidag. The New
Mexico Court of Appeals affirmed the
verdict. Yedidag v. Roswell Clinic Corp.,
2013-NMCA-096, ¶¶ 2, 40, 314 P.3d 243,
cert. granted, 2013-NMCERT-009.
{2}On certiorari review, Eastern argues
that (1) ROIA does not create a private
cause of action, (2) ROIA did not create an
implied promise that Dr. Yedidag would not
suffer adverse consequences incident to his
participation in the peer review process, and
(3) the evidence was insufficient to substantiate the jury’s award of punitive damages.
We affirm the Court of Appeals and hold
that (1) Section 41-9-5(A) creates a private
cause of action for breaches of peer review
confidentiality when such disclosures do not
further any of the listed purposes of ROIA,
(2) ROIA is the basis for an implied promise that physician-reviewers will not suffer
adverse employment consequences from
participation in peer reviews, see § 41-95(A), because we conclude that contractual
agreements incorporate mandatory state
law, and (3) the evidence was sufficient for
a jury determination of punitive damages
because a jury could conclude that Eastern’s
actions were, at minimum, wanton.
BACKGROUND
{3}On August 14, 2006, eighty-sevenyear-old Dorothy Brewington underwent
surgery at Eastern to remove two known
tumors from her colon. During her surgery, Dr. Ali removed only one of the
tumors. This required Ms. Brewington to
undergo a second operation to remove the
remaining tumor. Complications resulted
from both surgeries, and she ultimately
died on September 13, 2006.
{4} This incident was submitted to a peer
review committee for review. Dr. Dudley,
an Albuquerque private-practice colorectal surgeon and peer-review expert who
reviewed the relevant hospital records, testified that the clinical summary submitted
to physician reviewers during Dr. Ali’s peer
review of this incident provided limited
information and the summary appeared
“slanted” to suggest that the second surgery was necessary to remove a previously
unknown third tumor. This case arises out
of Dr. Ali’s troubling peer review. We first
provide some background on peer reviews
before discussing the circumstances of Dr.
Ali’s peer review evaluation. Many facts in
this case are contested, and we rely extensively on testimony to frame the parties’
conflicting perspectives.
DISCUSSION
I.Whether ROIA Creates a Cause
of Action for Breach of the ROIA
Confidentiality Provision
A.The physician peer review process
in general
{5} Peer reviews are meant to ensure that
patients have received adequate care. See
Brendan A. Sorg, Comment, Is Meaningful Peer Review Headed Back to Florida?,
46 Akron L. Rev. 799, 802 (2013) (“Peer
review is a process in which the actions
of health care providers are reviewed to
determine the appropriateness of care that
was provided”). During these proceedings, physicians review the actions “of
individual physicians and other healthcare
professionals appointed to the medical
staff of a hospital or other health care
organization when there are quality of
care concerns with respect to the health
care services provided by that individual.”
Susan O. Scheutzow & Sylvia Lynn Gillis,
Confidentiality and Privilege of Peer Review
Information: More Imagined Than Real, 7
J.L. & Health 169, 172 (1992-1993); see
also Sorg, supra, at 802 (“Peer review is
predominately performed by physicians
and other health care professionals who
are members of a hospital’s medical staff.”).
In order to identify and resolve quality
ANNUAL MEETING–BENCH AND BAR CONFERENCE PREVIEW
2015 Annual Meeting–Bench and Bar Conference
Celebrating Connections and Community
Sept. 30-Oct. 2, 2015
1 Lake Avenue, Colorado Springs, CO 80906 • 800-634-7711
https://resweb.passkey.com/go/SBARNM
*
$229 single/double*
Parking - $22 self/day; $24 overnight valet/day
Cutoff date: Aug. 30, 2015
Boo
now k
!
Minimum 12.0 CLE Credits (including at least 2.0 EP)
Preliminary Program
Wednesday, Sept. 30
8 a.m.
Board of Bar Commissioners Meeting
1 p.m.
Golf Tournament (ticketed)
5-7 p.m.
Registration/Exhibits
6-8 p.m.
Opening Reception
Thursday, Oct. 1
7-8 a.m.
• National Parks and the Collaborative
Process with Native American
Communities: Then and Now
Professor Jeanette Wolfley, University of New
Mexico School of Law
• Taxation of Court Awards and Tax Issues
Associated with Divorce
Oscar Ornelas, The Ornelas Firm PLLC; and
Edward B. Hymson, Edward B. Hymson
Attorney at Law
• Dear Employee: When You Leave, Please
Don’t Take My Company With You
Gina T. Constant, Romero & Constant PC;
and Jeffrey L. Lowry, Rodey Dickason Sloan
Akin & Robb PA
2 p.m.
Break
2:15 p.m.
BREAKOUTS
• Overcoming Challenges in Representing
Clients Who Are Minors or Who Have
Diminished Capacity
Alison B. Pauk, Law Offices of the Public
Defender; Laura A. Hedrich, Hedrich Law
PA; and Mary Ann Green, Mary Ann Green
Attorney at Law
• Update of Domestic Relations Law
Jon A. Feder and Thomas C. Montoya, Atkinson
& Kelsey, PA
• Disciplinary Board Hearing Committee
Training
William Slease, New Mexico Supreme Court
Disciplinary Board
Breakfast
7 a.m.-5 p.m. Registration/Exhibits
8 a.m.
Introductory Remarks
Martha Chicoski, President,
State Bar of New Mexico; and
Chief Justice Barbara J. Vigil,
New Mexico Supreme Court
8:30 a.m.
PLENARY
Defining Moments
Dave McGillivray, Race Director of the B.A.A.
Boston Marathon
10 a.m.
Break
10 a.m.-3 p.m. Guest Event/Tour (ticketed)
10:15 a.m.PLENARY
Beyond Sticks and Stones … The
Challenges of Dealing with Incivility in the
Practice of Law
Hon. Edward L. Chávez, New Mexico Supreme
Court; Gerald G. Dixon, Dixon Scholl & Bailey PA;
Hon. James A. Hall (Ret); William Slease, New
Mexico Supreme Court Disciplinary Board; and
Julie J. Vargas, Hunt & Davis PC
11:45 a.m.
Lunch on own
1 p.m.
BREAKOUTS
• Everything You Didn’t Know That You
Need To Know About Malpractice
Insurance
Maureen Sanders, Sanders & Westbrook PC;
Daymon Ely, Law Office of Daymon Ely; Shawn
Cummings, Butt Thornton & Baehr PC; Gerald
G. Dixon, Dixon Scholl & Bailey PA; and Briggs
Cheney, Sheehan & Sheehan PA
• Adding Another Tool to Your Alternative
Dispute Resolution Toolbox
Dorene A. Kuffer, Law Office of Dorene A Kuffer;
Gretchen Walther, Walther Family Law; and
Jerome Johnson, Jerome Johnson, CPA, LLC
3:15 p.m.
Break
3:30 p.m.
PLENARY
Women’s Economic Security in New Mexico
Rep. Brian Egolf, Minority Leader, N.M. House
of Representatives; Jaime Phillips, Ph.D., New
Mexico Department of Workforce Solutions;
Pamelya Herndon, Southwest Women’s Law
Center; Rebecca Kitson, Rebecca Kitson Law;
and R. Edward Marks, New Mexico Legal Aid Inc.
5 p.m.
Adjournment
11 a.m.
PLENARY
Civil Procedure Update
12:15 p.m.
Lunch on own
1:30 p.m.
BREAKOUTS
• Due Process and Language Access
for Native American Languages in
New Mexico Courts: Challenges and
Opportunities—Best Practices for
Attorneys Using Interpreters
Professor Barbara Creel, University of New
Mexico School of Law; and Christine P. Sims,
University of New Mexico Language, Literacy &
Sociocultural Studies
• The Rising Tide of Guardianship
Amanda Frazier, Second Judicial District Court
• Judicial Panel Discussion
Hon. Richard C. Bosson, New Mexico Supreme
Court; Hon. Carl J. Butkus, Second Judicial
District Court; Hon. Albert J. Mitchell, 10th
Judicial District Court; and Hon. Victor E.
Valdez, Bernalillo County Metropolitan Court
• Elder Investment Fraud and Financial
Exploitation: Ethical Traps for Lawyers
and How to Best Navigate the Challenges
of Diminished Financial Capacity
Lori Stiegel, American Bar Association
Commission on Law & Aging; and Alan R.
Wilson, New Mexico Securities Division
• The Pro Se and Pro Bono Two Step
Robert Lara, Third Judicial District Court; and
Dina Afek, Aja Brooks, and R. Edward Marks,
New Mexico Legal Aid Inc.
1:30 p.m.
Senior Lawyers Division Meeting
2:30 p.m.
Break
• Whistleblower Suits: Theory and Practice
Joseph L. Romero, Joseph L. Romero Trial
Lawyer LLC
2:45 p.m.
PLENARY
Criminal Procedure Update
4:00 p.m.
Closing remarks and adjournment
10:45 a.m.
Break
5:15 p.m.
State Bar Annual Awards Ceremony
5:30-7 p.m.Texas Tech University School of Law Alumni
Reception
6-10 p.m.President’s Reception/Dinner (Entertainment:
The Woodpeckers Band) (ticketed)
Friday, Oct. 2
7-8 a.m.
Breakfast
7 a.m.-3 p.m. Registration/Exhibits
8 a.m.
PLENARY
Invasion of the Drones/IP—Privacy,
Policies, Profits
Jeffrey H. Albright, Lewis Roca Rothgerber LLP;
and Thomas J. Dougherty, Rothgerber Johnson
& Lyons LLP
9:30 a.m.
Break
Young Lawyers Division Annual Meeting
Disciplinary Board Meeting
9:45 a.m.
BREAKOUTS
• Tax Dischargeability in Bankruptcy
Gerald R. Velarde, Law Office of Gerald R. Velarde
PC; and R. “Trey” Arvizu III, Arvizu Law Office
For information on exhibitor and
sponsorship opportunities,
contact Marcia Ulibarri at
505-797-6058, [email protected].
Guest Event/Tour
Thursday, Oct. 1 (ticketed)
The first 100 people to register for CLE and book
three nights at the hotel will be entered into a
raffle for a complimentary suite upgrade!
Manitou Springs tour
and shopping, Garden of
the Gods tour and lunch,
and Old Colorado City
See registration page for details.
Questions: contact Kris Becker,
505-797-6038.
Sept. 30-Oct. 2, 2015 • The Broadmoor, Colorado Springs, Colo.
Minimum 12.0 CLE Credits (including at least 2.0 EP)
Name ____________________________________________________________________________ SBNM Bar No. ______________________
Name for Badge (if different than above) __________________________________________________________________________________
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Advance Opinions
of care issues during a peer review, peer
reviewers must have specialized medical
expertise. See id. at 802-03 (“Functionally,
peer review leads to efficient evaluation
because practicing physicians have the
expertise to evaluate peers’ work and are
best positioned to review the competence
of other practicing physicians they regularly observe.”).
{6}In hospitals, “the term ‘peer review’
describes several distinct activities which
are generally performed by a hospital medical staff committee.” Katharine Van Tassel,
Hospital Peer Review Standards and Due
Process: Moving from Tort Doctrine Toward
Contract Principles Based on Clinical Practice Guidelines, 36 Seton Hall L. Rev. 1179,
1190 (2006). For example, a hospital’s
medical staff must assemble and assess
information concerning the competence
and professionalism of the physicians who
are seeking hospital staff privileges (such
as medical, diagnostic, emergency room,
or surgical privileges that allow a hospital’s
employee or non-employee physicians to
treat the hospital’s patients) for the first
time or for renewal (the credentialing
process). June D. Zellers & Michael R.
Poulin, Symposium, Termination of Hospital Medical Staff Privileges for Economic
Reasons: An Appeal for Consistency, 46
Me. L. Rev. 67, 67-68 (1994). Privileges
enable physicians to practice medicine at
a hospital. See Van Tassel, supra, at 1179,
1186-88. Physicians seek privileges when
they need to access the resources that hospitals provide. Id. at 1187. Physicians who
have privileges at a hospital are deemed to
be part of the hospital’s “medical staff.” See
id. at 1187-88. A peer review is also “commonly triggered by the report of an event
or a series of events that raises questions
about a physician’s clinical competence.”
Id. at 1191. Hospitals tend to have their
own unique peer review processes that are
laid out in medical staff bylaws, but there
are commonalities among hospitals. Id.
{7}Normally, “medical staff by-laws are
enforceable contracts between the hospital
and the members of the medical staff.” Id.
These bylaws “designate those individuals
who, or bodies which, can make a request
to institute an investigation, referred to
either as a complaint or as a request for
corrective action.” Id. at 1191-92. “[B]ylaws will also identify the individuals who,
or body which, can make the decision on
whether to authorize an investigation.”
Id. at 1192. When “a decision is made to
investigate a complaint,” usually either the
executive committee (“powerful members
of the hospital staff ”) or “an appointed ad
hoc committee made up of members of
the general medical staff will conduct the
investigation.” Id. at 1185, 1192-93.
{8}If such an investigation “reveals a
physician who is found lacking, informal
or formal punitive or restrictive measures
may be imposed to bring about improvement in the subject physician’s performance.” Id. at 1190. “Informal measures
include self-correction, assistance by colleagues, supervisory oversight and guidance with later re-assessment.” Id. Formal
measures could result in “a suspension of
staff privileges until corrective measures
are taken by the physician or further
education is received by the physician”;
restrictions on the scope of the physician’s
practice in the hospital; or termination of
staff privileges altogether. Id. at 1190-91.
B.Barriers to peer review efficacy and
the importance of confidentiality
{9}“[E]ffective peer review requires one
staff physician who becomes aware of a
deficient pattern of care to come forward
voluntarily and recommend that action be
taken to protect the other physician’s patients.” Paul L. Scibetta, Note, Restructuring
Hospital-Physician Relations: Patient Care
Quality Depends on the Health of Hospital
Peer Review, 51 U. Pitt. L. Rev. 1025, 1033
(1990) (footnote omitted).
It is thus essential that the reviewing physicians on . . . peer
review committees . . . not
hesitate [to] act swiftly to alleviate
potential injury. . . . Physicians
whose poor patterns of care
are discovered early could be
disciplined, counselled, required
to take further education,
observed, or assisted in practice
to assure that quality of practice
is maintained. When problems
remain undiscovered for long
periods of time and the damage
grows more serious, however,
the options open to the hospital
governing board will necessarily
be more limited. In the worst case
scenario, permanent suspension
would result.
Id. Unfortunately, multiple barriers undermine peer review efficacy and threaten the
objectivity and frankness of peer review
evaluations. See, e.g., id. at 1033-35.
{10} “The most serious obstacle to effective peer review is the potential fear
felt by the reviewer that participation in
an adverse recommendation will lead to
a lawsuit against him or her personally.”
Id. at 1033. This fear is realistic; plaintiffphysicians who have been subjected to
negative reviews have brought “antitrust”
suits against their reviewers. Id. at 1033-34.
Although most of these suits have been
unsuccessful, “the prospect of having to
defend even a meritless claim can chill
the willingness of many to recommend
the action necessary to improve hospital
quality.” Id. at 1034. Thus, the threat of lawsuits significantly dampens peer reviewer
candor.
{11} Another issue is that peer reviewers
may place their livelihoods at risk while
conducting reviews. See id. at 1034-35.
Reviewers face threats to their professional livelihood from two sources: their
peers and their employers. See id.; see
also Maxine M. Harrington, Revisiting
Medical Error: Five Years After the IOM
Report, Have Reporting Systems Made a
Measurable Difference?, 15 Health Matrix
329, 332 (2005) (“Efforts to obtain reliable information on medical error have
also been hindered by the problem of
underreporting, primarily due to fear
of malpractice litigation and employer
retaliations.”). Physician-reviewers are
vulnerable to retaliation from their peers
because physicians are extremely interdependent on one another within hospitals;
the “professional and financial success
of each physician depends upon his or
her colleagues.” Scibetta, supra, at 1034.
This is because “[i]ncreasing numbers of
physicians practice in referral specialties:
they must depend on their colleagues
to send them patients.” Id. at 1034-35.
Consequently, “[p]hysicians who make
important but difficult decisions [a]ffecting fellow practitioners may find that
others are reluctant or unwilling to refer to
them.” Id. at 1035. This “situation is bound
to chill the enthusiasm of potential peer
reviewers.” Id.
{12} A final barrier to effective peer
review is a physician’s workplace friendships. Scibetta, supra, at 1035. Physicians
develop friendships, and when they review a colleague’s practice, they may have
close personal ties to the colleague under
review. “It is not difficult to surmise the
internal conflict that must accompany
the initiation of a proceeding which will
be [certain] to engender animosity from
a personal friend, and may well have serious implications for that friend’s career.”
Id.; see also Sorg, supra, at 805 (“[P]eer
review committee members are often
direct colleagues or friends with the reviewed physician and understand that a
21
Advance Opinions
disciplinary recommendation that leads
to a termination of clinical privileges may
have a devastating effect on the reviewed
physician’s career, while also ending any
friendship.”). This situation may be exacerbated in smaller hospitals. See Scheutzow,
supra, at 174 (“Depending upon the size of
the health care organization, the individuals performing peer review and the person
reviewed may work together on a daily
basis and may even practice in the same
specialty.”). Thus, relationships between
physicians also inevitably dampen candor
and hinder the objectivity of evaluations.
{13} One way of overcoming these barriers is to ensure that the peer review
process is kept confidential. See Sorg,
supra, at 805-07 (listing the barriers to
peer review efficacy and explaining that
confidentiality protections are critical
for addressing disincentives that prevent
aggressive and meaningful peer review).
“[C]onfidentiality promotes the candid,
free flow of information between physicians who are part of the peer review committee.” Alissa Marie Bassler, Comment,
Federal Law Should Keep Pace with States
and Recognize A Medical Peer Review
Privilege, 39 Idaho L. Rev. 689, 690 (2003).
This is presumably because (1) parties disgruntled by the outcome of a peer review
would not know with whom they should
be upset, and therefore would be less
likely to retaliate, and (2) doctors would
speak more candidly when their remarks
were kept confidential. See Ardisana v.
Nw. Cmty. Hosp., Inc., 795 N.E.2d 964,
969 (Ill. App. Ct. 2003) (“Absent a confidentiality provision, physicians might be
reluctant to engage in strict peer review
due to a number of apprehensions: loss
of referrals, respect, and friends, possible
retaliations, vulnerability to tort actions,
and fear of malpractice actions in which
the records of the peer-review proceedings might be used.”); Bassler, supra, at
694 (“Physicians would not feel free to
openly discuss the performance of other
doctors practicing in the hospital, without
assurance that their discussions in committee would be confidential” (internal
quotation marks and citation omitted)).
C. Dr. Ali’s peer review at Eastern
{14} At Eastern, prior to any peer review
meetings, members of the hospital’s risk
management team review case files to
produce summaries. Physician-reviewers
then evaluate the case summaries to form
preliminary impressions of the cases under
investigation. The reviewers then conduct
a peer review meeting to discuss what,
if anything, may have gone wrong, ultimately to identify methods of correcting
errors to improve future treatment of
patients. During peer review meetings, the
physician being evaluated may be brought
in for questioning when the reviewers
believe that he or she may clarify points
of confusion in the medical record.
{15} According to a peer review expert,
Texas general surgeon Dr. West, and
consistent with Dr. Dudley’s opinion, Dr.
Ali’s peer review was probably deficient
because the clinical summary submitted
to the reviewers omitted Dr. Ali’s failure
to remove a known tumor. This type of
omission is problematic for evaluators
because the summary is supposed to frame
major problems for their review. Second,
information concerning Dr. Ali’s peer
review leaked out and led to the termination of physician-reviewer Dr. Yedidag’s
employment. Dr. West explained that
when peer review information is leaked, it
discourages individuals from participating
in peer reviews, and it may dim the candor
of the other reviewers. This case hinges on
the illegality of Eastern’s actions regarding
Dr. Yedidag and the statutory protections
to which he was entitled as a peer reviewer.
We next discuss Dr. Yedidag’s tumultuous
relationship with Eastern.
D.Termination of Dr. Yedidag’s
employment by Eastern
{16} On September 6, 2005, Dr. Yedidag
entered into a three-year surgeon’s employment contract at Eastern that could only
be terminated for fifteen listed reasons.
Eastern hired Dr. Yedidag to build a surgical practice in Roswell to compete with
other doctors and guaranteed his $375,000
salary, which meant that Eastern assumed
the financial risk of Dr. Yedidag’s failure to
attract patients.
{17} From Eastern’s perspective, Dr. Yedidag “had [a] personality conflict right
away with the other existing surgeons and
doctors in his practice.” Eastern claimed
that Dr.Yedidag also failed to “integrate
well with the primary care base and
network in the community.” These social
conflicts caused problems for both Dr.
Yedidag and Eastern because physicians
rely upon referrals from other doctors to
generate business, and poor relations with
his peers reduced Dr. Yedidag’s ability to
obtain referrals. Eastern also asserts that
Dr. Yedidag engaged in “several testy arguments, yelling incidents and disputes” with
a colleague, despite being reprimanded for
such behavior.
{18} Dr. Yedidag argues that there was
an “inevitable” clash between his “desire
to observe rules and do things professionally . . . and Eastern’s desire to have its
employee-physicians . . . build a surgical
practice for Eastern.” The record indicates
that Eastern’s emergency room employees
were undertrained and tended to perform
unnecessary and invasive1 procedures that
entail automatic admission of patients,
boosting Eastern’s profits. Eastern also
tended to initially allocate patients, including patients of non-employee-physicians,
to its own employee-physicians in a manner that artificially inflated the number
of patients Eastern saw. This contravened
the hospital’s own regulations and created
confusion and difficulties for its staff.
{19} On November 15, 2006, Dr. Yedidag’s relationship with Eastern reached its
breaking point following the peer review
meeting concerning Dr. Ali’s treatment of
Ms. Brewington. During the meeting, Dr.
Yedidag questioned Dr. Ali to clarify the
circumstances of Ms. Brewington’s death
and Dr. Ali refused to answer many of Dr.
Yedidag’s questions. Eastern characterizes
Dr. Yedidag’s questions as “verbal attacks”
that were “heated” and unprecedented for
peer review meetings, but failed to provide
any specific details to support its characterization. Sara Williamson, who was not
a member of the peer review committee
but was present during the meeting in
an administrative role, reported to Michael Kueker, Eastern’s physician practice
manager, that Dr. Yedidag had verbally
attacked Dr. Ali during the peer review.
However, Williamson did not recall “any
word that Dr. Yedidag said,” and she only
had “visual memories of [Dr. Yedidag’s]
behavior, body language, tone of voice and
the way things were being said.”
{20} However, there is evidence that Dr.
Ali’s peer review was neither uniquely
contentious nor unprofessional. Dr. Eric
Peterson, who chaired the peer review,
testified that although the discussion was
heated and probably did not improve relations between Dr. Yedidag and Dr. Ali,
Dr. Yedidag’s questions were well directed
and brought information to the forefront.
The peer reviewers could have asked Dr.
1 For example, Dr. Yedidag alleged that Eastern employees routinely placed tubes into patients’ chest walls which, even if they
were not needed by the patients, was profitable for Eastern.
22
Advance Opinions
Peterson to intervene if they thought that
the discussion got out of line, but no such
request was made. Dr. Petersen did not
take action, even though he reportedly
“doesn’t tolerate unfounded accusations”
and “raised voices” in peer review meetings.
{21} Dr. Peterson’s testimony is supported by the observations of Dr. Steven
North, who was also present at Dr. Ali’s
peer review. According to Dr. North, Dr.
Yedidag “was not rude in any way.” Dr.
North believed that while Dr. Yedidag
spoke passionately, his passion was not
out of the ordinary. From Dr. North’s
perspective, Dr. Ali’s peer review was not
unusually contentious.
{22} Notwithstanding the lack of specifics, Eastern claims that Dr. Yedidag’s
actions during the peer review process
directly contributed to his employment
termination. Sara Williamson’s report
regarding Dr. Yedidag’s questioning of
Dr. Ali is what precipitated Dr. Yedidag’s
termination. In its brief Eastern contends
that Dr. Yedidag was terminated “based on
[his] repeated unprofessional behavior and
repeated warnings to cease such behavior.”
{23} Despite this contention, there is evidence that Eastern’s commercial interests
precipitated Dr. Yedidag’s employment
termination following a peer review meeting where employee and non-employee
physicians who compete for patients
served as peer reviewers. When Dr. Yedidag tried to explain his side of the story to
Mr. Kueker, Mr. Kueker told Dr. Yedidag
that he “[didn’t] need to know” and he
“[didn’t] really want to know,” because
“in an environment where [Eastern has]
a sensitive competition going between
[a] group of surgeons in one camp and
[Eastern’s] surgeons in the other, for
one of [Eastern’s] surgeons to attack his
[colleague] in that meeting in front of
other people who are in the other camp”
is problematic. Mr. Kueker also claims that
he simply did not want his physicians to
attack each another.
{24} Eastern terminated Dr. Yedidag’s
employment pursuant to grounds 10.1(j),
10.1(k), and 10.1(m) of his employment contract. These grounds provide,
respectively, that Eastern may terminate
the employment of a physician (1) whose
continued employment either “pose[d]
an unreasonable risk of harm to patients
or others” or “adversely affect[ed] the
confidence of the public in the services
provided by [Eastern];” (2) who “engaged
in gross insubordination or gross derelic-
tion of duty;” or (3) whose conduct was
reasonably determined “to be unethical,
unprofessional, fraudulent, unlawful, or
adverse to the interest, reputation or business of [Eastern].”
{25} Mr. Kueker claims that these
grounds for termination were proper
because (1) Dr. Yedidag reduced public
confidence in Eastern’s services by arguing with his peers, (2) Dr. Yedidag was
insubordinate in failing to heed repeated
warnings concerning his allegedly inappropriate behavior, and (3) Dr. Yedidag
engaged in unprofessional behavior that
was adverse to Eastern’s interest. However, Mr. Kueker admitted that not all
of the grounds listed in the termination
clauses of the contract actually justified
terminating Dr. Yedidag’s employment.
For example, Mr. Kueker admitted that to
his knowledge, Dr. Yedidag never placed
any patients in danger.
{26} In his termination letter, Mr. Kueker
did not clarify that he only relied on portions of the termination clauses to justify
Dr. Yedidag’s employment termination.
Dr. Yedidag testified that as a result of the
letter, prospective employers could have
believed that he posed “an unreasonable
risk of harm to patients,” even though
his employment was not terminated for
endangering patients. The letter rendered
Dr. Yedidag almost unemployable by
other hospitals. He was in fact summarily
rejected from many jobs after potential
employers learned about the conditions
under which he was terminated. Mr.
Kueker was aware that this situation could
arise as a result of Dr. Yedidag’s termination.
{27} After these events, Dr. Yedidag filed
an amended complaint against Eastern
on claims arising from his termination.
A jury found that Eastern violated ROIA,
which proximately caused Dr. Yedidag’s
damages, and that Eastern breached its
employment contract with Dr. Yedidag.
With respect to Eastern’s breach of contract, the jury specifically found that
“Eastern breached its implied promise
that there would be no adverse consequences to Dr. Yedidag’s employment or
staff privileges as a consequence of his
participation in the peer review process.”
The jury then awarded Dr. Yedidag compensatory and punitive damages. The
New Mexico Court of Appeals affirmed
the verdict. Yedidag, 2013-NMCA-096,
¶¶ 2, 40. We granted certiorari review and
affirm the Court of Appeals. 2013-NMCERT-009.
E.The ROIA confidentiality provision
creates a cause of action
{28} This case hinges on whether Section 41-9-5(A), the ROIA confidentiality
provision, creates a private cause of action,
which is a question of law we review de
novo. See Sedillo v. State, Dep’t of Pub. Safety, 2007-NMCA-002, ¶ 7, 140 N.M. 858,
149 P.3d 955 (“The question of whether
statutes create or imply a private right of
action is a question of law . . . reviewed de
novo.”). We first provide an overview of
ROIA.
{29} ROIA regulates hospital peer review
committees, which gather and review
information concerning the care and
treatment of patients for eight purposes.
Section 41-9-2(E). The listed purposes are:
(1)
evaluating and improving
the quality of health care services
rendered in the area or by a health
care provider;
(2)
reducing morbidity or
mortality;
obtaining and dissemi(3)
nating statistics and information
relative to the treatment and
prevention of diseases, illnesses
and injuries;
developing and publish(4)
ing guidelines showing the norms
of health care services in the area
or by health care providers;
developing and publish(5)
ing guidelines designed to keep
within reasonable bounds the
cost of health care services;
reviewing the nature,
(6)
quality or cost of health care
services provided to enrollees
of health maintenance organizations and nonprofit health care
plans;
(7)
acting as a professional
standards review organization
pursuant to 42 U.S.C., Section
1320c-1, et seq.; or
(8)
determining whether
a health care provider shall be
granted authority to provide
health care services using the
health care provider’s facilities or
whether a health care provider’s
privileges should be limited, suspended or revoked.
Section 41-9-2(E). These purposes necessarily include gathering and evaluating
treatment data, defining and enforcing
professional standards, and evaluating and
improving the quality of healthcare services in the area. Id. ROIA is meant to improve
23
Advance Opinions
New Mexico health care. Sw. Cmty. Health
Servs. v. Smith, 1988-NMSC-035, ¶ 7, 107
N.M. 196, 755 P.2d 40 (“ROIA establishes
a medical peer review process to promote
the improvement of health care in New
Mexico.”). However, peer reviews are only
efficacious when they are conducted with
objectivity and candor. Id. (“[ROIA] recognizes that candor and objectivity in the
critical evaluation of medical professionals
by medical professionals is necessary for
the efficacy of the review process.”). To
promote objectivity and candor, ROIA
grants qualified immunity to both peer
reviewers and individuals who provide
information to review organizations. See §
41-9-3 (“No person providing information
to a review organization shall be subject to
any action for damages or other relief . . .
unless such information is false and the
person providing such information knew
or had reason to believe such information
was false.”); § 41-9-4 (providing that peer
reviewers shall not be liable “for damages
or other relief in any action brought by . . .
persons whose activities have been or are
being scrutinized or reviewed by a review
organization . . . unless the performance
of such duty, function or activity was done
with malice toward the person affected
thereby”); Leyba v. Renger, 1992-NMSC061, ¶¶ 5-6, 114 N.M. 686, 845 P.2d 780
(recognizing that ROIA establishes qualified immunity).
{30} ROIA also protects the confidentiality of peer review records. See Sw.
Cmty. Health Servs., 1988-NMSC-035, ¶
10 (“Section 41-9-5 precludes any party
from using for purposes of civil litigation
the confidential records of peer review
proceedings”). Section 41-9-5(A) protects
peer review confidentiality and provides
that
[a]ll data and information acquired by a review organization
in the exercise of its duties and
functions shall be held in confidence and shall not be disclosed
to anyone except to the extent
necessary to carry out one or more
of the purposes of the review organization or in a judicial appeal
from the action of the review
organization.
(Emphasis added.) Although this provision does not explicitly provide a private
remedy, we must determine whether a
cause of action is implied.
{31} Our determination of whether to
imply a private cause of action is influenced by three of four factors set out in
24
Cort v. Ash, 422 U.S. 66, 78 (1975). See
Nat’l Trust for Historic Pres. v. City of
Albuquerque, 1994-NMCA-057, ¶¶ 7, 11,
117 N.M. 590, 874 P.2d 798 (listing the
Cort factors and stating that the first three
Cort factors, while not irrelevant, do not
exclusively determine whether to imply a
cause of action). These three factors are
(1) Was the statute enacted for the
special benefit of a class of which
the plaintiff is a member? (2) Is
there any indication of legislative intent, explicit or implicit, to
create or deny a private remedy?
[and] (3) Would a private remedy
either frustrate or assist the underlying purpose of the legislative
scheme?
Nat’l Trust, 1994-NMCA-057, ¶ 7 (internal
quotation marks and citation omitted).
1.
Whether Dr. Yedidag is a member of
the class protected by ROIA
{32} The first Cort factor favors Dr. Yedidag because he is a member of the class
protected by ROIA. Eastern argues that
the ROIA qualified immunity provision,
which protects peer reviewers from claims
brought by the physicians they evaluate,
is the only ROIA protection to which
Dr. Yedidag is entitled. Eastern therefore
contends that Dr. Yedidag is not a member
of the protected class because Dr. Ali, the
person Dr. Yedidag evaluated, did not sue
Dr. Yedidag. Eastern’s argument is contrary
to the text and policy contained in ROIA,
and its argument also ignores industry
realities.
{33} Section 41-9-5(A) expressly guarantees the confidentiality of what “transpired” during peer review meetings. The
plain text in ROIA provides a blanket
confidentiality provision for peer review proceedings; it does not state that
physician-reviewers are only protected
when they are being sued by their reviewed
peers. See §§ 41-9-3 to -7.
{34} Retaliation against peer reviewers
can arise from many different sources.
See Ardisana, 795 N.E.2d at 969 (listing
some of the apprehensions physicians may
experience as a result of their participation
in peer reviews). For example, physicians
may lose “referrals, respect, and friends”
in their community. Id. These concerns
may undermine the rigor of physician
peer reviews, and a blanket confidentiality provision that provides protection for
physician-reviewers helps ensure candid
peer reviews. See Gregory G. Gosfield,
Comment, Medical Peer Review Protection
in the Health Care Industry, 52 Temp. L.Q.
552, 558 (1979) (noting that lawmakers
seek to avert the ambivalence experienced
by physicians when performing strict peer
reviews “by shielding peer review deliberations from legal attacks” and describing
how this ambivalence arises from numerous sources).
{35} The instant case demonstrates
that retaliation can arise from sources
other than poorly reviewed physicians.
Dr. Yedidag’s expert, Dr. West, testified
that peer review information should not
be made available to members of the
public, including employers, under any
circumstances, and that leaked information can undermine the peer review process by provoking retaliation from parties
including the reviewed doctors, their
friends, and their families. See Ardisana,
795 N.E.2d at 969 (noting possible “loss
of referrals, respect, and friends, possible
retaliations, vulnerability to tort actions,
and fear of malpractice actions” as sources
of physicians’ reluctance to participate in
a peer review process). Employers also
may retaliate against those who disclose
information concerning medical errors
and their employers’ misdeeds because
employers want to protect their financial
interests and reputations. See Harrington,
supra, at 332; Terzano v. Wayne Cnty., 549
N.W.2d 606, 611 (Mich. Ct. App. 1996)
(noting that employers engage in retaliatory actions when their employees reveal
information about the misdeeds of other
employees or of the employer that harms
the employer’s financial interests).
{36} Not surprisingly, physicians who
have been found responsible for providing substandard care often experience
a decrease in business. See Alex Stein,
Toward A Theory of Medical Malpractice,
97 Iowa L. Rev. 1201, 1242 (2012) (noting that physicians who have been found
responsible for malpractice face negative
peer reviews and expulsion from patientreferral networks and that these consequences often destroy such physicians’
businesses); see also Salamon v. Our Lady
of Victory Hosp., 514 F.3d 217, 220 (2d
Cir. 2008) (noting that undeserved negative performance reviews caused “serious
damage” to a physician’s career prospects).
Employee-physicians’ abilities to generate
revenue for their hospital-employer depend, in part, on the number of referrals
they receive. See Robert Kocker & Nikhil
R. Sahni, Hospitals’ Race to Employ Physicians—The Logic behind a Money-Losing
Proposition, 364 New Eng. J. Med. 1790,
1791 (2011) (noting that hospitals “expect
Advance Opinions
to [make] money on employed physicians
when they account for the value of all care,
tests, and referrals”). Eastern admits that
poor reviews of a hospital’s employeephysician may harm the hospital’s profitability. Consequently, employee-physician
reviewers who provide negative reviews of
their colleagues foreseeably risk retaliation
from their employers because such reviews
harm their employers’ financial interests.
{37} We hold that peer reviewers are a
protected class of individuals under ROIA,
regardless of whether the retaliatory entity
is a reviewed physician, a hospital, or any
other person or entity. In this case Dr.
Yedidag was a peer reviewer, and he is
entitled to the protections contained in
ROIA, including its confidentiality provision.
2.
Whether there was legislative intent
to create or deny a remedy
{38} The second Cort factor favors Dr.
Yedidag because the Legislature intended
that ROIA create a cause of action for
breaches of its confidentiality provision.
Eastern advances two arguments to the
contrary. First, Eastern argues that because the Legislature failed to specifically
provide for a civil cause of action, there
is an inference that it did not intend to
create one. Second, Eastern argues that
whereas medical information discussed
during peer reviews is confidential, the
conduct of the peer reviewers is not.
{39} Eastern’s first argument is inconsistent with New Mexico case law. National
Trust indicates that the omission of an
express cause of action by a legislature
does not necessarily prohibit an implied
cause of action. See 1994-NMCA-057, ¶¶
6, 14-15 (recognizing that “a statute may
explicitly deny a private cause of action”
and “it may be appropriate to deny standing when recognition of a private cause
of action would undermine the effective
functioning of a statutory scheme,” but
nevertheless enabling the plaintiffs to bring
an action, although there was no “explicit
statutory directive” enabling them to do
so).
{40} Eastern’s second argument is inconsistent with ROIA. Section 41-9-5 does not
distinguish information from conduct. The
confidentiality provision precludes the
disclosure of “what transpired” during the
peer review meeting unless (1) disclosure
would further the purposes of either peer
review or judicial review of peer review
actions, or (2) the medical board subpoenas individuals on what transpired during
a peer review. Section 41-9-5. The term
“transpire” means to “happen” or “occur.”
Webster’s Third New International Dictionary of the English Language Unabridged
2430 (1971). Conduct is something that
transpires at peer reviews. ROIA does not
provide a basis for the distinction asserted
by Eastern.
{41} Despite Eastern’s arguments, we
conclude that the Legislature intended to
create an implied cause of action. As a general rule, “[a] disregard of the command
of the statute is a wrongful act, and where
it results in damage to one of the class
for whose especial benefit the statute was
enacted, the right to recover the damages
. . . is implied.” Tex. & Pac. Ry. Co. v. Rigsby,
241 U.S. 33, 39 (1916) (emphasis added).
3.
Whether an implied cause of action
furthers or frustrates the purpose of
the confidentiality provision
{42} We conclude that the third Cort factor also favors Dr. Yedidag because without
a private cause of action, the minimal
criminal penalty provided in Section 419-6 of ROIA will not adequately guarantee
peer review confidentiality. Generally,
when a plaintiff ’s interests fall “within
the class that the statute was intended to
protect” and when “the harm that had
occurred was of the type that the statute
was intended to forestall,” civil actions are
proper because “criminal liability [is] inadequate to ensure the full effectiveness of [a]
statute.” Wyandotte Transp. Co. v. United
States, 389 U.S. 191, 202 (1967); see also
Junping Han, Note, The Constitutionality
of Oregon’s Split-Recovery Punitive Damages Statute, 38 Willamette L. Rev. 477,
486 (2002) (noting that scarce resources
for public prosecution means that private
prosecutors play an important role in vindicating wrongdoings). In this case, ROIA
was meant to protect Dr. Yedidag, and a
jury concluded that Eastern had violated
ROIA. Upholding peer review integrity
under ROIA is best accomplished with an
implied civil cause of action for violations
of peer review confidentiality because such
violations are not necessarily prosecuted
by the State.
{43} All three Cort factors support our
holding that ROIA creates a private cause
of action for breach of the confidentiality
provisions. Dr. Yedidag is a member of
the protected class under ROIA. Eastern
used confidential information concerning Dr. Yedidag’s conduct during Dr. Ali’s
peer review to terminate Dr. Yedidag’s
employment. The acquisition and use of
confidential peer review information for
purposes of employee discipline is not a
statutorily permissible use of peer review
information, see § 41-9-5(A), and Dr. Yedidag’s right to confidentiality was violated.
We therefore conclude that Dr. Yedidag
can avail himself of an implied cause of
action.
{44} Our holding limits the use of peer
review information for a statutory purpose,
see § 41-9-5(A), and only those individuals
responsible for furthering the statutory
purposes of ROIA can be privy to such
information. See § 41-9-5 (noting that no
person can utilize peer review information
except to carry out the statutorily enumerated purposes of a review organization).
Eastern contends that our holding will
completely immunize physician-reviewer
conduct in peer reviews, “no matter how
egregious.” This argument ignores the dual
regulatory structure within hospitals. As
will be explained, because only medical
staff, not hospital administrators, are responsible for peer reviews, medical staff
may utilize information concerning peer
reviewer conduct to discipline reviewers.
{45} The medical staff in a hospital is
composed of both the hospital’s employeephysicians and non-employee physicians
who have been granted staff privileges.
See Zellers & Poulin, supra, at 67 (noting that both employee-physicians and
non-employee-physicians have medical
staff privileges at hospitals). Both types of
physicians require medical staff privileges
to work at a hospital. Id. Physicians receive
privileges to work at a hospital once the
medical staff determines that the physician
is professionally qualified or credentialed.
Van Tassel, supra, at 1190. Credentialing
decisions traditionally were based “solely
on professional notions of medical competence” as opposed to “factors unrelated
to the quality of care or physician competence.” Tracy A. Powell, The Permissibility
of Conflicts Credentialing (a/k/a Economic
Credentialing) by Traditional Hospitals as
a Response to the Growth of Specialty Hospitals, 20 Health Law. 17, 17 (2007). Typical credentialing requirements include
the “lack of a prior adverse record by the
physician, and . . . qualifications specifying licenses, insurance, [and] performance
and training standards.” John Hulston, et.
al., Do Hospital Medical Staff Bylaws Create
a Contract?, 51 J. Mo. B. 352, 352 (1995).
{46} Employment regulations reflect
employer interests that are separate from
those covered under medical staff bylaws,
the latter being designed to further quality of care. See Zellers, supra, at 70-71.
For example, “a hospital may . . . control
25
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access to its equipment and staff on the
basis of its own economic interests” and
it may do so “not through the credentialing process but through its contracts with
physicians for certain services.” Id. at 71;
see, e.g., Adler v. Montefiore Hosp. Ass’n of
W. Pennsylvania, 311 A.2d 634, 645 (Pa.
1973) (distinguishing between medical
staff bylaw regulations and the conditions imposed by an employer-employee
contract and holding that the cancellation
of an employee-physician’s rights to perform certain procedures utilizing hospital
equipment, which were granted by his or
her employer-employee contract, did not
implicate the privileges granted by the
medical staff, and therefore did not entitle
the physician to protections provided by
the medical staff bylaws); Zellers, supra,
at 73, 77-78 (discussing Adler and noting
that physicians often rely on two different
contracts to protect their interests within
the hospital setting: “(1) the employment
. . . contract between the hospital and the
physician; and (2) the contract created by
the medical staff bylaws”).
{47} Eastern has a dual regulatory system
whereby its employee-physicians are held
accountable to both medical staff bylaws
and employee-physician contracts. A
doctor who is employed at Eastern is not
allowed to work at the hospital until its
medical staff determines that the doctor is
professionally qualified to fulfill the functions for which he or she is to be hired. The
final decisions concerning either the grant
or revocation of staff privileges rests with
Eastern’s credentialing committee. Furthermore, the Eastern medical staff drives
the peer review process and creates the
bylaws necessary to regulate that process.
On the other hand, Eastern administrators
in charge of employment matters have only
clerical connections with medical staffing
decisions, and they are not responsible
for regulating peer reviewer conduct.
Eastern admits that hospital administrators participating in peer reviews are not
members of peer review committees and
they do not possess any voting power on
these committees. Hospital administrator
involvement in peer reviews at Eastern
is limited to collecting data and making
decisions concerning “what needs to go
to [the peer review] committee meeting.”
{48} In light of the aforesaid dual regulatory structure, Eastern’s argument that our
holding immunizes egregious conduct
lacks merit because it ignores the authority of the medical staff who have their own
rules concerning peer reviews. See Anthony W. Rodgers, Comment, Procedural
Protections During Medical Peer Review: A
Reinterpretation of the Health Care Quality
Improvement Act of 1986, 111 Penn St. L.
Rev. 1047, 1061 (2007) (“Hospital bylaws
govern the relationship between medical
practitioners and the hospital” such that
“[t]hese bylaws also frequently set out the
procedure for the peer review process”);
Eleanor D. Kinney, Hospital Peer Review
of Physicians: Does Statutory Immunity
Increase Risk of Unwarranted Professional
Injury?, 13 Mich. St. U. J. Med. & L. 57,
60-62 (2009) (noting that the accrediting
body for hospitals, the Joint Commission
on the Accreditation of Health Care Organizations (JCAHO), requires that “medical
staff must create medical staff by-laws
that describe the organizational structure
of the medical staff and the rules for its
self-governance” and discussing the fact
that JCAHO “require[s] accredited organizations to create a code of conduct that
defines acceptable and unacceptable behaviors, and to establish a formal process
for managing unacceptable behavior”).
Eastern’s medical staff have regulations
concerning disruptive conduct. The chair
of an Eastern peer review committee
can intervene at any time to stop inappropriate behavior. Particularly egregious
behavior could trigger the termination of
a physician’s privileges. See, e.g., Kinney,
supra, at 58 (citing a situation where a
peer review panel revoked a physician’s
privileges partially based on disruptive
conduct). At Eastern, the loss of such
privileges terminates the employment of
its physician-employees. ROIA explicitly
allows reviewed physicians to bring claims
against their evaluators for malicious peer
review conduct. See § 41-9-4 (providing
that immunity from claims brought by
reviewed physicians only attaches when
the conduct is not malicious); Leyba, 1992-
NMSC-061, ¶ 13 (noting that immunity is
qualified because “members of peer review
committees are often in direct competition
with those being reviewed, and the system
has the potential for abuse of the person
being reviewed.”). Thus, unprofessional
peer reviewers face multiple avenues of
discipline that regulate disruptive conduct,
albeit not by hospital administrators who
are not privy to what transpires during
peer review meetings.2
{49} Minimizing the inappropriate conduct of peer reviewers improves the peer
review process. Kinney, supra, at 79-80
(“Obviously, not every peer review of a
physician is unwarranted, abusive or malicious. No doubt badly behaved physicians
can pose a threat to patient safety and the
smooth operation of health care facilities.
And legal immunity does protect physicians participating in peer review from
lawsuits by appropriately sanctioned physicians. However, the processes for regulating physician conduct should be designed
to operate in a fair manner with respect
to physicians while assuring protection of
the public.”). Thus, utilizing information
concerning peer review conduct to prevent
abusive review proceedings furthers the
purposes of the peer review process. While
inappropriate behavior during a peer review is still confidential under ROIA3, the
statute enables medical staff to utilize such
information to discipline reviewers.
II.ROIA Is the Basis for an Implied
Promise that Dr. Yedidag Would
Not Suffer Adverse Employment
Consequences Stemming from His
Participation in Peer Review
{50} Dr. Yedidag argues that ROIA provides a basis to imply, as a matter of law,
that there would not be any adverse consequences to his employment resulting from
his actions during the peer review process.
Eastern disagrees. Whether there was an
implied promise is a question of law that
we review de novo. See, e.g., Taylor Equip.,
Inc. v. John Deere Co., 98 F.3d 1028, 1031
(8th Cir. 1996) (reviewing the application
of an implied covenant de novo). The issue
hinges on whether the ROIA confidentiality provision is either a mandatory or a default rule of law. See Ian Ayres, Responses,
2 We also note that if Dr. Yedidag had actually engaged in repetitive unprofessional conduct, Eastern perhaps could have acquired
information concerning Dr. Yedidag’s conduct outside of the peer review to terminate his employment. Mr. Kueker claimed that Dr.
Yedidag was terminated not only because of his behavior during the peer review meeting, but also because of “a long string of events
where his behavior was inappropriate.” Some of these alleged events were supposed to have occurred outside of the peer review context. Therefore, Eastern did not have to resort to piercing the confidentiality of a peer review meeting.
3 Eastern argues that the jury instructions improperly left the jury “with no alternative than to find [that] Dr. Yedidag’s unprofessional conduct was confidential.” In light of our holding, we note that the trial court had no alternative but to issue the jury instructions as they were because the professionalism of Dr. Yedidag’s behavior does not impact the confidentiality of his conduct.
26
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Valuing Modern Contract Scholarship, 112
Yale L.J. 881, 885-86 (2003) (discussing
the distinction between mandatory and
default contract rules).
{51} Generally, “[t]he employer-employee relationship is a contractual [one]
wherein the parties may negotiate the
terms thereof and agree to any terms
not prohibited by law or public policy.”
Whipple v. McDonald’s Rest. Managers,
2007-731, p. 3 (La. App. 3 Cir. 12/5/07);
971 So. 2d 431, 433 (internal quotation
marks and citation omitted). Where a
contract is silent on an issue, courts apply
default rules supplied by law. Id. Mandatory rules of law prohibit the contracting
of certain terms as violating public policy.
Default rules supply terms that fill the
gaps concerning issues on which parties
can freely contract. Whether a statutory
requirement is mandatory is a question
of legislative intent. Vaughan v. John C.
Winston Co., 83 F.2d 370, 372 (10th Cir.
1936) (“Whether a statutory requirement
is mandatory in the sense that failure to
comply therewith vitiates the action taken
. . . can only be determined by ascertaining
the legislative intent.”). “If a requirement
is so essential a part of the plan that the
legislative intent would be frustrated by a
noncompliance, then it is mandatory.” Id.
{52} ROIA does not explicitly preclude
employer retaliation for peer review
participation. However, because Section
41-9-5 states that information concerning peer review can only be utilized for
the purposes listed in the statute, ROIA
precludes the usage of peer review
information, id., to justify adverse employment consequences. Section 41-9-5
prohibits an employer from retaliating
against a physician who participates in
a peer review because the unlawful acquisition and utilization of peer review
information is a factual prerequisite to
such retaliation. Our analysis therefore
focuses on whether Section 41-9-5 is a
mandatory rule of law.
{53} By its plain language, Section 419-5 is a mandatory rule of law. Section
41-9-5(A) states that “[n]o person . . .
shall disclose what transpired at a meeting of a review organization” except
for the purposes listed in the statute.
(Emphasis added.) “The word ‘shall’ is
ordinarily ‘[t]he language of command.’
And when [a law] uses . . . ‘shall’, the
normal inference is that [it] is used in its
usual sense—[that] being . . . mandatory.”
Anderson v. Yungkau, 329 U.S. 482, 485
(1947) (citation omitted).
{54} The ROIA regulatory scheme,
which aims to promote peer review
integrity by promoting candor and objectivity, also strongly suggests that Section 41-9-5 is a mandatory rule. See Sw.
Cmty. Health Servs., 1988-NMSC-035,
¶ 7 (ROIA “recognizes that candor and
objectivity in the critical evaluation of
medical professionals by medical professionals is necessary for the efficacy of the
review process.”). Candor and objectivity
are greatly furthered when reviewers are
protected by a confidentiality provision.
See Sorg, supra, at 803-04. Allowing entities to contract around the confidentiality
provision would undermine the entire
regulatory scheme because the confidentiality of an entire group can be destroyed
by one individual. The presence of one
peer review participant who is not bound
by the ROIA confidentiality provision
could chill the candor of an entire peer
review panel. We therefore hold that
Section 41-9-5 is a mandatory rule of
law incorporated into physician-reviewer
employment contracts. A mandatory rule
of law, by definition, precludes parties
from contractually avoiding application of
the rule. See Ayres, supra, at 881, 885-86.
However, our holding does not conflict
with Eastern’s contractual provisions
enabling termination of employment
for cause. Our holding merely prevents
Eastern from using confidential peer review information in making its personnel
decisions.
III.The Evidence Was Sufficient for
a Jury Determination of Punitive
Damages Because a Jury Could
Have Concluded that Eastern’s
Profit Motives Made Eastern’s
Actions, at the Very Least, Wanton
{55} Eastern argues that “Dr. Yedidag
failed to meet his burden to substantiate”
a punitive damages award based on its alleged ROIA violation. We disagree. A jury
could find that at the very least, Eastern
acted wantonly in terminating Dr. Yedidag’s employment based on his conduct
during the peer review of Dr. Ali.
{56} In New Mexico, a punitive damages award will be upheld if substantial
evidence supports the jury’s finding. Aken
v. Plains Elec. Generation & Transmission
Co-op., Inc., 2002-NMSC-021, ¶ 17, 132
N.M. 401, 49 P.3d 662. In doing so, we
resolve all disputed facts and indulge all
reasonable inferences in favor of the judgment. Chavarria v. Fleetwood Retail Corp.,
2006-NMSC-046, ¶ 23, 140 N.M. 478, 486,
143 P.3d 717.
{57} Eastern argues that punitive damages are not justified when Eastern could
not have known that it violated ROIA
when it terminated Dr. Yedidag’s employment because (1) the issue of whether the
confidentiality provision protected Dr.
Yedidag’s conduct was a matter of first
impression for New Mexico courts, and
(2) Mr. Kueker had consulted with attorneys concerning whether terminating
Dr. Yedidag was permissible under the
circumstances. These arguments are not
persuasive.
{58} In New Mexico, the award of punitive damages requires a culpable mental
state because such damages aim to punish
and deter “culpable conduct beyond that
necessary to establish the underlying cause
of action.” Walta v. Gallegos Law Firm, P.C.,
2002-NMCA-015, ¶ 56, 131 N.M. 544, 40
P.3d 449. Punitive damages are awarded
when a party intentionally or knowingly commits wrongs. See UJI 13-1827
NMRA. However, punitive damages are
also imposed when a defendant is utterly
indifferent to the plaintiff ’s rights, even
if the defendant lacked actual knowledge
that his or her conduct would violate those
rights. See Kennedy v. Dexter Consol. Sch.,
2000-NMSC-025, ¶ 32, 129 N.M. 436, 10
P.3d 115. For example, reckless and wanton
conduct merits punitive damages, but does
not involve actual knowledge of the violations. UJI 13-1827. “Reckless conduct is
the intentional doing of an act with utter
indifference to the consequences.” Id. Similarly, “[w]anton conduct is the doing of an
act with utter indifference to or conscious
disregard for a person’s [rights].” Id.
{59} There is sufficient evidence to reasonably infer that Eastern acted wantonly
in violating Dr. Yedidag’s right to confidentiality. A jury could have found that (1)
Eastern had significant reasons to suspect
that Dr. Yedidag’s rights would have been
violated by any potential termination of
his employment based on peer review
conduct, and (2) Eastern was utterly indifferent to the risk of violating those rights.
{60} Both the plain text of ROIA and
physician-reviewer norms state that Dr.
Yedidag had a right to confidentiality in the
context of a peer review. ROIA enhances
peer review efficacy by promoting candor
through its confidentiality provision. See
Sw. Cmty. Health Servs., 1988-NMSC-035,
¶ 7; Sorg, supra, at 805-07. ROIA also
explicitly states that peer review information can only be utilized to effectuate the
purposes listed in the statute, which do
not encompass employment discharge of
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peer reviewers. See §§ 41-9-5, 41-9-2(E).
Eastern utilized peer review information
to justify terminating Dr. Yedidag’s employment, even though employment matters concerning peer reviewers clearly fall
outside the scope of the intended purposes
of ROIA. See id. Furthermore, the record
reveals that two physicians, who were also
peer reviewers during the subject peer review meeting, were somewhat bewildered
when Dr. Yedidag’s right of confidentiality was breached during the course of
his termination. These facts indicate that
Eastern should have been on notice to
the possibility that its termination of Dr.
Yedidag violated the ROIA confidentiality provision and were utterly indifferent
to the consequences. Eastern’s breach of
the ROIA confidentiality provision was
shocking to the physician-reviewers who
recognized the potential for employer retaliation to undermine peer review candor.
See Harrington, supra, at 332 (noting that
fear of employment retaliation makes individuals less willing to disclose information
concerning medical errors). This consequence is inconsistent with both ROIA
policies and the resulting limitations on
the utilization of confidential peer review
information. The foreseeable consequence
of disrupting peer review candor should
have warned Eastern that it needed to
thoroughly scrutinize the legality of its
actions.
{61} Despite the obvious risks of terminating Dr. Yedidag’s employment on the
basis of confidential peer review information, the evidence in the record indicates
that Eastern was utterly indifferent to the
risks. First, Eastern did not proffer any
advice of counsel letter on which it relied
in making its decision to terminate Dr.
Yedidag. In fact, Eastern does not offer
any documentation of reliance on counsel.
A defendant who was attentive to others’
rights would have obtained documentation supporting its reliance on an erroneous interpretation of law. See Scalise v. Nat’l
Util. Serv., Inc., 120 F.2d 938, 941-42 (5th
Cir. 1941) (noting that “advice of counsel
is not a defense [to recovery of punitive
damages] unless it appears as a matter of
fact that it was requested in good faith and
upon full disclosure, and was given in good
faith in regard to a course where legal questions . . . are involved”). Second, Mr. Kueker appeared to have weak factual bases
for Dr. Yedidag’s termination. Mr. Kueker
did not seek further opinions from any-
one concerning Dr. Yedidag’s peer review
conduct and could not recall any “specific
words” that justified characterizing Dr.
Yedidag’s conduct during the peer review
meeting as inappropriate. Mr. Kueker admitted that his recollection of the events
was “fuzzy.” His vagueness concerning the
factual bases for Dr. Yedidag’s termination
suggests that Eastern lacked sufficient
facts with which to support a good faith
legal opinion justifying Dr. Yedidag’s
termination. Third, if Dr. Yedidag had
continuously engaged in unprofessional
behavior, Eastern should have relied on
documented conduct outside of the peer
review meeting to justify terminating his
employment, thereby avoiding potential
ROIA violations. However, the record
reveals no attempt by Eastern to seek out
alternative facts to justify Dr. Yedidag’s
termination. In light of Eastern’s conduct,
a jury could reasonably infer that Eastern
was utterly indifferent to Dr. Yedidag’s
rights.
{62} In addition to these oversights, the
evidence before us is more egregious than
Eastern claims. A jury could readily find
that Eastern was not forthright in asserting that it had terminated Dr. Yedidag’s
employment because of his unprofessional
conduct. Notably Sara Williamson, who
reported the incident to Mr. Kueker, was
never asked to document the occurrence.
However, such documentation appears to
be part of Eastern’s standard protocol for
discharge. This suggests that Dr. Yedidag’s
actual peer review conduct had nothing
to do with his discharge. In addition, the
record does not reveal that Dr. Ali was disciplined despite his unwillingness to fully
disclose his role in a patient’s death. Based
on testimony at the trial, a jury could find
that Eastern had other reasons it did not
reveal for terminating Dr. Yedidag–such
as discouraging other Eastern physicians
from candidly reviewing Eastern’s employee physicians in front of competitors.
{63} Unsatisfactory peer reviews can
damage an employee-physician’s ability
to obtain referrals, and therefore harm
Eastern’s profits. See Stein, supra, at 1242
(discussing how findings that a physician
provided inadequate care can harm that
physician’s business); Kocker, supra, at
1790 (discussing how hospitals rely on
their employee-physicians to generate
business so that hospitals can recoup the
costs of retaining physicians). As a result,
the jury could also have reasonably found
that Eastern terminated Dr. Yedidag’s
employment in an attempt to protect its
business by trying to suppress potentially
candid peer reviews that would reflect
poorly on its employee-physicians. See
Terzano, 549 N.W.2d at 611 (noting that
employers have been known to retaliate
against employees to protect their financial
interests).
{64} This inference becomes stronger
when considering that Dr. Yedidag’s unprecedented4 termination “bewildered”
peer-reviewers Dr. Peterson and Dr. North.
It is possible that the shock value of Dr.
Yedidag’s termination would discourage
other doctors from providing candid peer
reviews. See Harrington, supra, at 332
(noting that employees are less likely to
disclose information concerning medical
errors because of the threat of employer
retaliation). Eastern’s termination letter,
which Mr. Kueker admitted was less than
accurate, effectively precluded Dr. Yedidag
from obtaining future employment as a
surgeon, amplifying the chilling effect of
Dr. Yedidag’s termination. The jury could
have reasonably found that apart from
silencing Dr. Yedidag at Eastern’s peer
reviews, Eastern intentionally undermined
Dr. Yedidag’s career to reinforce its implied
proscription of candid peer reviews. Under
these circumstances, a jury could have
found that Eastern’s termination of Dr.
Yedidag’s employment was reckless or
wanton, see UJI 13-1827, and any attempts
Eastern made to deliberately undermine
peer review candor could constitute intentional acts that deliberately violated
ROIA rights and policies. The evidence
was sufficient for the jury to find that
Eastern wantonly violated ROIA, which
is a finding sufficient to justify a punitive
damages award.
{65} With respect to Eastern’s arguments
that it should not be held liable for punitive
damages because whether ROIA created a
cause of action is an issue of first impression, this fact does not preclude the finding
of a culpable mental state deserving of
punitive damages. See, e.g., Walta, 2002NMCA-015, ¶¶ 30, 64 (upholding the
imposition of punitive damages although
the underlying violation involved an issue
of first impression). We also reject Eastern’s argument that its consultation with
an attorney precludes the imposition of
punitive damages. We have explained why
a jury could reasonably reject Eastern’s
contention that it had consulted with an
4 Sara Williamson indicated that she knew of no other physician who was terminated for their participation in a peer review
process.
28
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attorney. In addition, a jury could still
find from other evidence that Eastern was
utterly indifferent to whether it violated
ROIA and that it did not properly research
the legality of its actions. See, e.g., Sheetz,
Inc. v. Bowles Rice McDavid Graff & Love,
PLLC, 547 S.E.2d 256, 264-66 (W. Va.
2001) (noting that advice of counsel is not
necessarily a bar to punitive damages).
{66} We hold that there was sufficient
evidence to submit the issue of punitive
damages to the jury. Because Eastern only
argued that it lacked a culpable mental
state, and not that the damages were excessive as a matter of law, we do not analyze
the jury’s award for excessiveness. See
Chavez-Rey v. Miller, 1982-NMCA-187,
¶ 9, 99 N.M. 377, 658 P.2d 452 (“Where
a party prays for an award of punitive
damages and the evidence is sufficient to
permit the issue of punitive damages to be
considered by the jury, the amount of such
damages is left to the sound discretion of
the jury based on the nature of the wrong,
the circumstances of each case, and any
aggravating or mitigating circumstances
as may be shown.”). We therefore uphold
the award of punitive damages.
CONCLUSION
{67} We affirm the Court of Appeals
and hold that Eastern violated the ROIA
confidentiality provision by utilizing
confidential information concerning Dr.
Yedidag’s peer review conduct to termi-
nate his employment. Because there was
sufficient evidence to establish Eastern’s
wanton breach of the confidentiality provisions in ROIA, Dr. Yedidag is entitled to
both compensatory and punitive damages.
We affirm both the district court and the
Court of Appeals.
{68} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
29
Advance Opinions
Opinion Number: 2015-NMCA-040
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JEREMY S. LUCERO,
Defendant-Appellant
Docket No. 32,864 (filed December 17, 2014)
APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
GRANT L. FOUTZ, District Judge
GARY K. KING
Attorney General
PAULA E. GANZ
Assistant Attorney General
for Appellee
Opinion
M. Monica Zamora, Judge
{1} Defendant Jeremy Lucero appeals his
convictions for voluntary manslaughter,
contrary to NMSA 1978, § 30-2-3(A)
(1994), and aggravated battery, contrary
to NMSA 1978, § 30-3-5(C) (1969). He
argues that: (1) the district court erred in
refusing a requested self-defense instruction as to the voluntary manslaughter and
aggravated battery charges, (2) the district
court erred in denying his requests for a
mistrial, and (3) his convictions for aggravated battery and voluntary manslaughter
arise from the same course of conduct
and violate the prohibition against double
jeopardy. We agree with Defendant that
the self-defense jury instruction should
have been given. Accordingly, we reverse
and remand for a new trial. We address
Defendant’s remaining issues only to the
extent they either have the potential of affording Defendant greater relief on appeal
or they are likely to recur on retrial.
I.BACKGROUND
{2} Jean (aka Gene) Bateman (Victim) was
an eighty-seven-year-old man who lived at
the Ambassador Motel (the motel) in Gallup, New Mexico. He collected and traded
weapons and kept a gun and a machete in
his motel room.
{3}Defendant had been with a friend in
a different room at the motel throughout
30
JORGE A. ALVARADO
Chief Public Defender
TANIA SHAHANI
Assistant Appellate Defender
LAW OFFICES OF THE
PUBLIC DEFENDER
for Appellant
the night of November 22, 2010, and on
the morning of November 23, 2010. Also
on that morning, he had argued loudly
with his girlfriend in the parking lot and
Victim observed the argument from his
doorway, which was adjacent to the lot.
After Defendant’s girlfriend left, Victim
asked Defendant about the argument
and invited Defendant to his room. Defendant knew Victim socially because, at
one point, Defendant, his girlfriend, and
their children had also lived at the motel.
The men talked near the door of Victim’s
room. Their interaction escalated into
an argument. Defendant testified that he
threatened to publicly share private details
about Victim, the two exchanged words,
and Victim struck Defendant in the head
with his machete.
{4}Defendant further testified that after
being struck, he “saw a star” and “kind
of blacked out.” He remembered pushing
Victim back and the machete dropping.
Defendant could not recall if there was a
struggle for the machete. The next thing
he remembered was that Victim stood up
and retrieved a gun from under his pillow
and pointed it at Defendant’s face.
{5} As Victim had gone for the gun,
Defendant picked up the machete from
the floor. Defendant testified that when
Victim pointed the gun at him, he was
angry, confused, scared, and afraid for
his life. Defendant did not remember
swinging the machete, but testified that
he remembered seeing a laceration on
Victim’s neck and blood everywhere, both
Victim’s and his own. Defendant took
Victim’s gun and fled in Victim’s Jeep.
Defendant wrecked the Jeep and walked to
his aunt’s house. Defendant’s aunt agreed
to give him a ride back into town. As they
were leaving, Defendant’s girlfriend arrived. Defendant got out of the vehicle and
went after his girlfriend with a gun in his
hand. Defendant’s aunt retrieved the gun,
placed it under the seat of the vehicle, and
called police. Law enforcement officers
responding to the call discovered Victim’s
Jeep, retrieved the gun from under the seat
where Defendant’s aunt had put it, took
Defendant into custody, and transported
him to the hospital.
{6} Meanwhile, a motel employee discovered Victim on the floor of his motel
room, injured and surrounded by blood.
First responders to the motel observed
that there was a great deal of blood on the
carpet of Victim’s room. Later testimony
revealed that Victim had lost between
30 percent and 40 percent of his blood
volume. Victim’s throat had been cut, he
had cuts on his arm, and a bump on his
head.
{7}Victim was hospitalized. His injuries
included lacerations on his neck, fractured
ribs, lacerations on his arm, a fractured
bone in his shoulder, and blunt force injuries to his head. Victim had a distinctive
pattern on his forehead consistent with
the pattern on the bottom of the shoes
Defendant was wearing at the time of his
arrest. The State’s expert testified that the
injury to Victim’s head was consistent with
Victim being stomped on with enough
force to damage the blood vessels.
{8}Victim remained hospitalized, in
critical condition and on a ventilator, until
February 2011. While hospitalized, Victim
suffered from pressure injuries, malnutrition, and pneumonia. After several
months, and several attempts by Victim’s
doctors to take him off of the ventilator,
the decision was made not to continue to
resuscitate or intubate him. The autopsy
concluded that the cause of Victim’s death
was the multiple traumatic injuries he had
sustained.
{9} Defendant was charged with one count
each of first degree murder, aggravated
burglary, robbery, aggravated battery, and
receiving or transferring stolen vehicles.
Defendant was convicted of voluntary
manslaughter, a lesser included offense of
first degree murder, as well as all the other
charges. This appeal followed.
Advance Opinions
II.DISCUSSION
A. The Self-Defense Instruction
{10} At the close of evidence at Defendant’s trial, Defendant requested a selfdefense jury instruction in accordance
with UJI 14-5181 NMRA, which the
district court refused to issue. Defendant
contends that the district court’s refusal to
issue the instruction constitutes reversible
error.
{11} “The propriety of denying a jury
instruction is a mixed question of law
and fact that we review de novo.” State v.
Guerra, 2012-NMSC-014, ¶ 13, 278 P.3d
1031 (internal quotation marks and citation omitted). “When considering a defendant’s requested instructions, we view the
evidence in the light most favorable to the
giving of the requested instructions.” State
v. Swick, 2012-NMSC-018, ¶ 60, 279 P.3d
747 (alteration, internal quotation marks,
and citations omitted). “For a defendant
to be entitled to a self-defense instruction
. . . there need be only enough evidence to
raise a reasonable doubt in the mind of a
juror about whether the defendant lawfully
acted in self-defense. If any reasonable
minds could differ, the instruction should
be given.” State v. Lucero, 2010-NMSC011, ¶ 11, 147 N.M. 747, 228 P.3d 1167
(omission in original) (internal quotation
marks and citation omitted).
{12} An instruction on self-defense must
be justified by evidence on all three elements of self-defense, which are: “(1) the
defendant was put in fear by an apparent
danger of immediate death or great bodily
harm, (2) the killing resulted from that
fear, and (3) the defendant acted reasonably when he or she killed.” State v. Rudolfo,
2008-NMSC-036, ¶ 17, 144 N.M. 305, 187
P.3d 170 (internal quotation marks and
citation omitted). When such evidence is
presented, the defendant has an “unqualified right” to the instruction. State v. Ellis,
2008-NMSC-032, ¶ 15, 144 N.M. 253, 186
P.3d 245 (internal quotation marks and
citation omitted).
{13} The first two elements, the apparent danger and the defendant’s fear, are
assessed subjectively, focusing “on the
perception of the defendant at the time of
the incident.” Rudolfo, 2008-NMSC-036, ¶
17 (internal quotation marks and citation
omitted). The reasonableness of the defendant’s response in the face of the apparent
danger and fear is assessed objectively. See
id. (stating that “the third requirement is
objective in that it focuses on the hypothetical behavior of a reasonable person
acting under the same circumstances as
the defendant.” (internal quotation marks
and citation omitted)).
{14} Evidence presented at trial did not
conclusively establish the sequence of
events that resulted in Victim’s injuries.
The forensic expert, Lawrence Renner,
testified that it could not be determined
to what extent the two men may have
struggled against one another, what type
of struggle took place, or how long the
struggle may have lasted.
{15} Defendant testified that the violence
began when Victim attacked him with the
machete, delivering a blow to his head
that caused him to black out. Though
Defendant was unable to recall exactly
what happened once he had control of the
machete, he did testify that when Victim
pointed a gun at his face, he was afraid for
his life and that he was defending himself
when he injured Victim.
{16} Several photographs admitted into
evidence showed a significant gash on Defendant’s forehead. Officers present when
Defendant was taken into custody testified
that he had a bleeding head wound and
that he was transported to the hospital.
Additionally, blood stains on the awning
of Victim’s doorway, determined to be
Defendant’s blood, were consistent with
Defendant’s testimony that he had been
struck with a machete.
{17} The State argues that Defendant’s
testimony that he was in danger and was
in fear for his life lacks credibility. The
State contends that the evidence of Victim’s
physical limitations and the condition of
his room calls into question Defendant’s
testimony that Victim retrieved a gun and
pointed it at him. The State also insists that
at some point Victim was injured on the
floor, no longer posing a threat to Defendant, so Defendant could not have been in
actual fear. The State further argues that
even if Defendant had perceived danger
and felt actual fear, his response was not
reasonable. The State relies on the theory
that Defendant persisted in attacking
Victim after Victim had fallen to the floor
injured. This theory is based on testimony
that the injuries to Victim’s neck and head
could have occurred while Victim was
lying on the floor. However, the admitted
evidence was conflicting and did not conclusively establish the sequence of events
or what position Victim was in when he
sustained each of his injuries.
{18} As a reviewing court, it is not within
our purview to weigh evidence. State
v. Sutphin, 1988-NMSC-031, ¶ 21, 107
N.M. 126, 753 P.2d 1314. That function
is reserved for the trier of fact. See State v.
Johnson, 1983-NMSC-043, ¶ 7, 99 N.M.
682, 662 P.2d 1349 (observing that conflicts in the evidence, including conflicts
in testimony among witnesses, are to be
resolved by the trier of fact); see generally State v. Salas, 1999-NMCA-099, ¶ 13,
127 N.M. 686, 986 P.2d 482 (recognizing
that the appellate court defers to the fact
finder when weighing the credibility of
witnesses and resolving conflicts in witness testimony). The admitted evidence
was sufficient to raise an issue of fact with
respect to the elements of a self-defense
claim and conclude that the district court
erred in refusing to instruct the jury accordingly.
B. Double Jeopardy
{19} Defendant argues that his convictions for aggravated battery and voluntary
manslaughter violate the prohibition
against double jeopardy because the
convictions arise from the same course
of conduct. “The Fifth Amendment of
the United States Constitution prohibits
double jeopardy and is made applicable
to New Mexico by the Fourteenth Amendment.” Swick, 2012-NMSC-018, ¶ 10.
Because double jeopardy challenges are
constitutional questions of law, we review
them de novo. State v. Melendrez, 2014NMCA-062, ¶ 5, 326 P.3d 1126, cert. denied, 2014-NMCERT-006, 328 P.3d 1188.
{20} The double jeopardy clause “functions in part to protect a criminal defendant against multiple punishments for the
same offense.” Swick, 2012-NMSC-018, ¶
10 (internal quotation marks and citation
omitted). There are two classifications of
double jeopardy multiple-punishment
cases: double-description cases, “where the
same conduct results in multiple convictions under different statutes”; and unitof-prosecution cases, “where a defendant
challenges multiple convictions under
the same statute.” Id. Here, Defendant’s
double jeopardy challenge raises a doubledescription issue because he challenges
two convictions under different statutes
for what he contends is the same conduct.
{21} Double-description claims involve a
two-part analysis. Swafford v. State, 1991NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d
1223. We first consider whether the conduct underlying the offenses is in fact the
same, or unitary. See id.; Melendrez, 2014NMCA-062, ¶ 7; Swick, 2012-NMSC-018,
¶ 11. If the conduct is not unitary, there
is no double jeopardy violation. Swick,
2012-NMSC-018, ¶ 11. If the conduct is
unitary, we look to the statutes at issue
31
Advance Opinions
“to determine whether the [L]egislature
intended to create separately punishable
offenses.” Swafford, 1991-NMSC-043, ¶ 25.
{22} When determining “whether a
defendant’s conduct was unitary, we consider . . . whether acts were close in time
and space, their similarity, the sequence
in which they occurred, whether other
events intervened, and the defendant’s
goals for and mental state during each
act.” State v. Franco, 2005-NMSC-013, ¶
7, 137 N.M. 447, 112 P.3d 1104. Where a
defendant’s acts are separated by sufficient
indicia of distinctness, the conduct is not
unitary. State v. Urioste, 2011-NMCA-121,
¶ 18, 267 P.3d 820. The proper inquiry
“is whether the facts presented at trial
establish that the jury reasonably could
have inferred independent factual bases
for the charged offenses.” Franco, 2005NMSC-013, ¶ 7 (internal quotation marks
and citation omitted).
{23} On appeal, the State asserts that Victim was injured as a result of two distinct
attacks; one while Victim was upright and
the other after he had fallen to the floor.
The State contends that the wounds on
Victim’s arm and shoulder were sustained
while Victim was standing and are sufficient to support the aggravated battery
conviction, while the injuries to Victim’s
neck and head were sustained as Victim lay
on the floor and are sufficient to support
the voluntary manslaughter conviction.
{24} As we previously discussed, the
admitted evidence did not establish the
sequence or timing of Victim’s injuries, nor
did it conclusively establish how Victim
was positioned when each of his injuries
occurred. The evidence does not indicate
whether there was an intervening event or
a change in Defendant’s intent during the
course of the altercation. Moreover, the
medical examiner testified that Victim’s
death was not specifically attributable to
any of injuries, but rather to complications from multiple traumatic injuries. At
trial, the State argued that the charge of
aggravated battery was supported by the
injuries to Victim’s neck and arm and that
Victim’s death was attributable to all of his
injuries.
{25} Based upon what was presented
at trial, the jury could not have reasonably distinguished distinct factual bases
for the voluntary manslaughter charge
and the aggravated battery charge. As
a result, we conclude that Defendant’s
conduct was unitary and turn to the
question of whether the Legislature intended to create separate punishments
32
for aggravated battery and voluntary
manslaughter.
{26} In analyzing legislative intent, we
look to the language of the statute. State v.
Frazier, 2007-NMSC-032, ¶ 21, 142 N.M.
120, 164 P.3d 1. If multiple punishments
are not clearly prescribed, we then apply
the rule of statutory construction established in Blockburger v. United States, 284
U.S. 299 (1932). Swafford, 1991-NMSC043, ¶ 11. Under Blockburger, “the test to
be applied to determine whether there are
two offenses or only one, is whether each
provision requires proof of a fact which
the other does not.” 284 U.S. at 304.
{27} However, our Supreme Court has
clarified that “the application of Blockburger should not be so mechanical that
it is enough for two statutes to have different elements.” Swick, 2012-NMSC-018, ¶
21. Instead, “a complete double jeopardy
analysis may require looking beyond facial
statutory language to the actual legal theory in the particular case by considering
such resources as the evidence, the charging documents, and the jury instructions.”
State v. Montoya, 2013-NMSC-020, ¶ 49,
306 P.3d 426.
{28}In Swick, the defendant “beat,
stabbed, and slashed” his victims. Swick,
2012-NMSC-018, ¶ 26. This conduct
formed the bases for both the aggravated
battery and the attempted murder charges.
The Court used the modified Blockburger
approach to determine “whether the Legislature authorized multiple punishments
under the statutes for attempted murder
and aggravated battery with a deadly
weapon for the same conduct.” Swick,
2012-NMSC-018, ¶ 20. The Court rejected
a mechanical comparison of each statutory
element concluding that:
Both statutes punish overt acts
against a person’s safety but take
different degrees into consideration. The aggravated battery statute concerns itself with the intent
to harm and the attempted murder statute concerns itself with the
intent to harm fatally. . . . Even if
we accept as true that different
social harms may be addressed by
each statute, Swafford explained
that ‘[i]f the punishment attached
to an offense is enhanced to allow
for kindred crimes, these related
offenses may be presumed to be
punished as a single offense.’
Id. ¶ 29. Considering that the state had
not asserted or shown independent factual bases for the aggravated battery and
the attempted murder charges the Court
held that “the aggravated battery elements
were subsumed within the attempted
murder elements. When this occurs, the
double jeopardy prohibition is violated,
and punishment cannot be had for both.”
Id. ¶ 27 (internal quotation marks and
citation omitted).
{29} Swick also reaffirmed the principle
that “when doubt regarding legislative
intent remains, ambiguity must be resolved in favor of lenity.” Id. ¶ 30 (internal
quotation marks and citation omitted). If
reasonable minds can differ as to the Legislature’s intent in punishing the crimes at
issue, the rule of lenity should be applied.
Montoya, 2013-NMSC-020, ¶ 51.
{30} Here, the State argues that the aggravated battery and voluntary manslaughter
statutes are intended to be separately punishable because they proscribe different
crimes with different elements. We reject
this argument.
{31} Voluntary manslaughter is the unlawful killing of a human being without
malice, committed upon a sudden quarrel
or in the heat of passion. See § 30-2-3(A).
Aggravated battery involves “the unlawful touching or application of force to the
person of another with intent to injure
that person[.]” Section 30-3-5(A). Though
these statutes do consist of different elements, here, as in Swick, “[b]oth statutes
punish overt acts against a person’s safety
but take different degrees into consideration.” 2012-NMSC-018, ¶ 29.
{32} The State’s attempt to characterize
Defendant’s actions as distinct and separately punishable on appeal is misguided.
First of all, the evidence does not support
the State’s theory that Victim suffered
two separate attacks. Second, the conduct
supporting each of the charges was nearly
indistinguishable. At trial, the theory of
the State’s case to support the aggravated
battery charge was that Defendant sliced
Victim’s throat and arm. Its theory to support the voluntary manslaughter charge
was that Defendant sliced Victim’s throat
and arm, and stomped on his head. The
aggravated battery is subsumed within
the voluntary manslaughter. Applying the
double jeopardy analysis as recently clarified by our Supreme Court, along with the
rule of lenity, we conclude that Defendant’s
convictions for both crimes violate the
prohibition against double jeopardy and
cannot stand.
{33} We recognize that the evidence
presented on retrial may differ from that
presented at the first trial, and that the
Advance Opinions
double jeopardy analysis may be affected.
However, the parties and the district court
should keep the above analysis in mind in
addressing any double jeopardy issues that
may arise upon retrial.
C. Defendant’s Motions for Mistrial
{34} Defendant contends that the court
erred in denying his requests for a mistrial
after several State witnesses referenced
an alleged domestic violence incident,
excluded by the court as prejudicial. We
decline to address this issue in light of our
decision to reverse Defendant’s convictions and remand for a new trial. See State
v. Roman, 1998-NMCA-132, ¶ 16, 125
N.M. 688, 964 P.2d 852 (stating that this
Court will not usually “reach out to decide
issues unnecessarily” (internal quotation
marks and citation omitted)).
CONCLUSION
{35} For the foregoing reasons we reverse
Defendant’s convictions for voluntary
manslaughter and aggravated battery and
remand to the district court for further
proceedings consistent with this Opinion.
{36} IT IS SO ORDERED.
M. MONICA ZAMORA, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
MICHAEL E. VIGIL, Judge
33
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35
Kinship/Guardianship CLE
The Volunteer Attorney Program is hosting a CLE
entitled “The Basics of Kinship/Guardianship” on
July 10, 2015 from 1:30 pm - 4:30 pm in
Courtroom A at the Taos County District Court,
105 Albright St., Taos, NM 87571.
The CLE (3.0 G) will be presented by Larry B. Kronen
of Pegasus Legal Services for Children.
Free for VAP volunteers and those who agree to
take a kinship/guardianship case or be a GAL.
Donations welcome from other attendees
($50 or more per person suggested).
If you would like to attend this CLE,
please contact Aja Brooks at (505) 797-6040
or [email protected].
Office of the State Engineer/
Interstate Stream Commission (OSE/
ISC) State of New Mexico
The Litigation & Adjudication Program seeks
oneNew Mexico licensed attorney: a Lawyer
Advanced to work in the Administrative
Litigation Unit to represent the Water Rights
Division in administrative hearings and the
State Engineer in appeals, enforcement actions, and other water rights matters. The
positions are located in Santa Fe. Qualifications for Lawyer A: Juris Doctorate from an
accredited law school and 5 years of relevant
exp.Job ID #: Lawyer –#2015-02822. Must
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from 6/16/15 – 6/30/15. The OSE/ISC is an
Equal Opportunity Employer
Lawyer Position
Guebert Bruckner P.C. seeks an attorney with
up to five years experience and the desire to
work in tort and insurance litigation. If interested, please send resume and recent writing
sample to: Hiring Partner, Guebert Bruckner
P.C., P.O. Box 93880, Albuquerque, NM
87199-3880. All replies are kept confidential.
No telephone calls please.
Bilingual Staff Attorney
Classified
Positions
Assistant District Attorney
The Fifth Judicial District Attorney’s office has an immediate position open to a
new or experienced attorney. Salary will be
based upon the District Attorney Personnel and Compensation Plan with starting
salary range of an Associate Trial Attorney
to a Senior Trial Attorney ($42,935.00 to
$74,753.00). Please email resume to Dianna
Luce at [email protected] or mail to 301
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Law Offices of the Public Defender
Various Job Opportunities
In addition to various current openings,
the Law Offices of the Public Defender was
approved new positions in Fiscal Year 2016.
There are multiple attorney and non-attorney
staff positions available throughout the State
of New Mexico. Please visit our website for a
complete list of job postings: www.lopdnm.
us. You are encouraged to apply for various
positions in different locations. The State
of New Mexico is an equal opportunity
employer.
36
Associate Attorney
Turner Law Office is currently seeking a fulltime associate attorney to handle Public Defender cases out of Dona Ana County, Luna
County, Hidalgo County and Grant County.
Please send resume to smvturnerlaw@
qwestoffice.net, fax to 575-546-9014, or mail
Attention: Robert F. Turner, 900 S. Platinum,
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Litigator
The Albuquerque office of Brownstein Hyatt
Farber Schreck, LLP is seeking a talented and
ambitious litigator with 6-10 years of experience. The ideal candidate will have experience
in a mid to large firm with a proven track
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Excellent academic performance, law journal
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skills, interpersonal skills and the ability
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Please submit resume, transcripts, writing
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Olberding, Attorney Recruiting Manager, at
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ENLACE COMUNITARIO seeks bilingual
staff attorney with at least one year of family
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Email resume and letter of interest to info@
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Associate
Established Albuquerque plaintiff personal
injury and wrongful death litigation firm
seeks associate for its growing statewide practice. Ideal candidate should have minimum
2 years of personal injury litigation experience. Taking/defending depositions and
arbitration/trial experience required. Spanish
speaking preferred but not required. Salary
dependent on experience. Submit resume and
writing samples to POB 92860, Albuquerque,
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Associate Attorney
Ray McChristian & Jeans, P.C., an insurance
defense firm, is seeking a hard-working associate attorney with 5 years of experience
in insurance defense, insurance law, medical
malpractice and/or civil litigation. Excellent
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Competitive salary, benefits, and a positive
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Experienced Litigator
Lewis Roca Rothgerber’s Albuquerque office is
seeking a litigation attorney with five or more
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candidates must have excellent writing,
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Candidate must be a member of the New
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success. The ideal candidate will work in a
team-orientated environment, participate
in a broad range of sophisticated matters,
and take on immediate responsibility with
significant client involvement. Lewis Roca
Rothgerber actively fosters the career growth
and development of our attorneys and will
help you reach your potential. We encourage
a congenial work environment balanced with
an innovative, highly productive practice. The
firm offers qualified candidates a competitive
salary commensurate with experience and
a full benefits package. If you are interested
in making Lewis Roca Rothgerber a part of
your future, please send your resume to Mary
W. Kiley, Director of Lawyer Recruitment,
at [email protected]. Lewis Roca
Rothgerber LLP is an Equal Opportunity Employer. We do not discriminate on the basis of
race, sex, sexual orientation, gender identity,
religion, national origin, color, age, physical or
mental disability, spousal affiliation, marital
status, a serious medical condition, genetic
information, veteran status or any other basis
prohibited by federal, state or local law.
Want to do Something Special
for Children?
Here’s a chance to do well by doing good,
protecting abused and neglected children.
The Children’s Court Attorney in Socorro,
NM represents Child Protective Services in
the Socorro area and surrounding counties.
The ideal candidate will have a heart as well as
legal smarts and solid courtroom experience.
New Mexico licensure required. Benefits
include medical, dental, vision, paid vacation, and a retirement package. The salary
range is $39-$69K annually, depending on
experience and qualifications. To learn more,
contact Lynne Jessen at (575) 373-6403, or email [email protected] . The State of
New Mexico is an EOE. Please apply on-line
by visiting the New Mexico State Personnel
Office website at www.state.nm.us/spo/. Law
School transcripts and Bar license card must
be attached to on-line application.
City Of Albuquerque
Civilian Police Oversight Agency
Director
Under the direction and supervision of the
Police Oversight Board (POB), the Director
supervises and directs the operations of the
Civilian Police Oversight Agency (CPOA).
The Director oversees, monitors, and reviews
all citizen police complaints or complements,
serious uses of force including officer-involved
shooting cases, and claims directed against officers and employees of the Albuquerque Police
Department (APD). The Director will act as
lead investigator and supervise the investigative and administrative staff of the CPOA; as
well as assigning citizen police complaints to
CPOA staff for investigation. The Director will
provide recommendations and advice regarding Departmental policies and procedures to
the POB; the Director will also provide advice,
as appropriate, to the APD, the City Council,
and the Mayor. The Director is responsible for
the performance of the CPOA staff’s duties in
line with policy, guidance, and city ordinance.
This position is open until filled. For more information or to apply for this position, please
go to our website at www.cabq.gov/jobs.
Staff Attorney
New Mexico Appleseed seeks a staff attorney
to work on a variety of poverty-related legal
and policy issues. Primary responsibilities
include legal research, policy analysis, and
writing; this position does not involve litigation or individual representation. Candidates
should have 2-5 years of legal experience, superb research and writing skills, and a proven
commitment to public service. Clerkships and
journal experience are a plus. Diverse candidates are encouraged to apply. Send a cover
letter, law school transcript, writing sample
and resume to Jennifer Ramo at jramo@
nmappleseed.org, or email us for details.
Associate Attorney
Madison & Mroz, P.A., an AV-rated civil
defense firm, seeks an associate with three to
five years experience to assist with all aspects
of our litigation practice. This person should
have strong research and writing skills and
the ability to work independently. We offer
a competitive salary and excellent benefits.
All inquiries will be kept confidential. Please
forward CVs to: Hiring Partner, P.O. Box
25467, Albuquerque, NM 87102.
Attorney
The Harvey & Foote Law Firm, a plaintiff’s
firm specializing in prosecuting cases involving nursing home abuse and neglect, is hiring
an attorney. The applicant needs to have excellent research and writing abilities, be detail
oriented and proactive, and have excellent
computer and communication skills. Prior
litigation experience is necessary. This is a
full time position. Please send your resume
to [email protected].
Santa Fe County
Request for Proposals
Indian Law
Santa Fe County is requesting proposals
from licensed, qualified Offerors to provide
Professional Legal Services in the general
area of Indian law, with specific emphasis
on real property issues and disputes within
Indian country. These services will assist the
County in assessing and resolving questions
concerning the legal status of County roads
within the exterior boundaries of Pueblos;
negotiating and enforcing agreements between the County and tribal governments;
and otherwise assessing and resolving legal
issues involving the sovereign tribal governments within Santa Fe County. Services may
include both transactional and litigation
work, including possible litigation to resolve
the legal status of County roads within the
exterior boundaries of Pueblos located within Santa Fe County. All proposals must be
received by 2:00 PM (MDT) on Tuesday, June
30, 2015, at the Santa Fe County Purchasing Division (Second Floor), 142 W. Palace,
Santa Fe, New Mexico 87501. The request
for proposals are available by contacting
Marissa Yniguez, Senior Procurement Specialist, 142 W. Palace Avenue (Second Floor)
Santa Fe, New Mexico 87501, by telephone
at (505) 992-6753, or by email at myniguez@
santafecountynm.gov or on the County’s
website at: http://www.santafecountynm.
gov/asd/current_bid_solicitations. Reference RFP No. 2015-0349-LG/MY. PROPOSALS RECEIVED AFTER THE DATE AND
TIME SPECIFIED ABOVE WILL NOT BE
CONSIDERED AND WILL BE REJECTED
BY SANTA FE COUNTY.
Attorney Senior
Civil Court (FT At-Will)
The Second Judicial District Court is accepting applications for an At-Will Attorney
Senior in Civil Court. Qualifications: Must be
a graduate of an ABA accredited law school;
possess and maintain a license to practice
law in the State of New Mexico. Five (5)
years of experience in the practice of civil
law, of which one year must have been as a
supervisor. Experience handling sequestered
guardianship issues under the probate code
and accounting skills are preferred. SALARY: $30.387 to $37.984 hourly, plus benefits.
Send application or resume supplemental
form with proof of education and writing sample to the Second Judicial District
Court, Human Resource Office, P.O. Box
488 (400 Lomas Blvd. NW), Albuquerque,
NM, 87102. Applications without copies of
information requested on the employment
application will be rejected. Application and
resume supplemental form may be obtained
on the Judicial Branch web page at www.
nmcourts.gov. Resumes will not be accepted
in lieu of application. CLOSES: July 16, 2015
at 5:00 p.m.
37
Associate Attorney
Chapman and Charlebois, P.C. is seeking
an experienced insurance defense attorney
to join our litigation team, providing legal
analysis, representation and advice to local
and national clients. Attorney must have 3+
years of insurance defense experience and be
licensed in NM. Please submit resume and salary requirements to: [email protected].
13th Judicial District Attorney
Senior Trial Attorney, Assistant Trial
Attorney, Associate Trial Attorney
Cibola, Sandoval, Valencia Counties
Senior Trial Attorney - This position requires
substantial knowledge and experience in criminal prosecution, rules of criminal procedure and
rules of evidence, as well as the ability to handle
a full-time complex felony caseload. Admission
to the New Mexico State Bar and a minimum
of five years as a practicing attorney are also
required. Assistant Trial Attorney - The 13th
Judicial District Attorney’s Office is accepting
applications for an entry to mid level attorney to
fill the positions of Assistant Trial Attorney. This
position requires misdemeanor and felony caseload experience. Associate Trial Attorney - an
entry level position for Cibola (Grants), Sandoval
(Bernalillo) or Valencia (Belen) County Offices.
The position requires misdemeanor, juvenile and
possible felony cases. Upon request, be prepared
to provide a summary of cases tried. Salary for
each position is commensurate with experience.
Send resumes to Kathleen Colley, District Office
Manager, PO Box 1750, Bernalillo, NM 87004,
or via E-Mail to: [email protected].
Deadline for submission of resumes: Open until
positions are filled.
Associate Attorney
Established Rio Rancho law firm has an
immediate opening for an associate attorney interested in the practice of real estate,
litigation and trust, estate, and probate
matters. Litigation experience preferred.
Please submit a resume and writing sample
to P.O. Box 15698, Rio Rancho, NM 87174
or via email to [email protected]. All replies
kept confidential. Newly licensed attorneys
encouraged to apply.
Legal Assistant
GUEBERT BRUCKNER P.C. busy litigation
firm looking for experienced Legal Assistant
to work with 10 attorneys in an office pool,
must enjoy working as a team member. Must
have strong writing and proof reading skills.
Knowledge of Local, State, Federal Civil Rules
filing requirements. Hours 8:30 to 5:30. Firm
uses Microsoft Word, Excel, and Outlook.
Please submit resume and salary requirement to Kathleen A. Guebert, POB 93880,
Albuquerque, NM 87109.
38
Receptionist
Receptionist needed to handle front desk and
phone duties at high rated and busy personal
injury, civil rights and medical malpractice
law firm. Prior experience and familiarity
with injury law and receptionist responsibilities a plus, but not a requirement. Spanish
speaker also a plus. Please send resumes and
cover letters to: [email protected]
Paralegal
Experienced paralegal needed for busy family
law firm in Albuquerque. Family law experience preferred. We are looking for a highly
organized professional who can work independently. Exceptional people skills are needed
due to substantial client interaction. Must be
able to multi-task in a fast paced environment. Excellent work environment, benefits
and salary. Please provide resume and salary
requirements to [email protected]
or fax to 505-889-8242
Positions Wanted
Associate Attorney
Newly licensed NM attorney with criminal
law experience seeks associate attorney position. Extensive paralegal, extern and law clerk
experience in bankruptcy, immigration and
intellectual property. Resume and references
available. [email protected]
Services
Available for Research and
Writing Assignments
Attorney with 7 years appellate court experience available for research and writing
assignments. Reliable and thorough: motions,
briefs, research. Email llhouselaw@gmail.
com or call 505-715-6566 or 505-281-9293.
Civil and Criminal Litigation Support
Civil and Criminal Motions Drafting. Appeals Drafting. Hearing Coverage. Oral
Argument Contract Counsel. Trial CoCounsel. Attorney Brian Close is experienced
in providing a variety of civil and criminal
litigation support. Contact 505-796-4878 or
[email protected].
Orthopedic Surgeon
Orthopedic Surgeon available for case review,
opinions, exams. Rates quoted per case. Send
inquiries to: [email protected]
Elite Appellate Briefing Services
Experienced appellate advocate, New Mexico
native, and Harvard Law School graduate.
May consider contingency arrangement for
high value cases. Email Dustin at dslade@
sladelawfirm.com or call 505.566.3705.
Available to Associate with
Out of State Attorneys
New Mexico Lawyer with office building 6
blocks from State and Federal District courts
in Albuquerque available to associate with out
of State attorneys recently admitted under
New Mexico Rule 107. Over 30 years experience with New Mexico personal injury and
probate cases. Kerry Morris 505 842 1362/
[email protected]
Office Space
Prominent Office in the Albuquerque Plaza
Office Building (affectionately known as the
Bank of Albuquerque building). Plaza500’s
ready-to-go offices, at 201 3rd Street NW,
are centrally located near all courthouses.
Monthly fee includes covered parking, VoiP
phone, phone line, high speed internet, free
Wi-Fi, conference room hours, Starbucks
coffee and water service, printer and fax
use, professional reception service, 24-hour
secure access, utilities and janitorial services.
Drop by or contact Sandee at 505-999-1726/
[email protected] to make an appointment.
Office Sharing Opportunity
1011 Lomas Blvd NW. One office available
in building with eight other lawyers. Rent
includes secretarial area, utilities, receptionist, runner, conference room, phone system,
internet, fax, copier, kitchen, and plenty of
parking. Contact Robert Cooper at (505)
842-8494 or via email at [email protected].
620 Roma N.W.
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference rooms, a large waiting area, access to
full library, receptionist to greet clients and
take calls. Call 243-3751 for appointment to
inspect.
1905 Lomas Blvd NW
ABQ NM 87104
Law Offices for rent. Great location. Very
close to downtown courthouses. Property
features: conference room, copier/scanner/
printer/fax, Comcast internet/phone, janitorial service, Filing room, extra cubicles,
receptionist area, waiting room, mini
kitchen, crystal springs service, courtyard.
Rent is $475.00 per month. Damage Deposit
is $100.00. Contact Info: 505-319-1202 or
[email protected]
We’re ready
to print YOUR
business package!
MAILING ADDRESS:
PO Box 3070
Mary Ann R. Burmester
PHYSICAL ADDRESS:
City Place | Suite 2000
2155 Louisiana NE
(505) 881-2566
201 Third St. NW, Suite 500, Albuquerque, NM 87102 • P: 505.944.9030 • F: 505.944.9091 • [email protected]
NM Divorce & Custody Law LLC
201 Third St. NW, Suite 500, Albuquerque, NM 87102 • P: 505.944.9030 • F: 505.944.9091 • [email protected]
Mary Ann R. Burmester
Attorney
2727 San Pedro NE, Suite 114
CITY PLACE SUITE 2000
2155 LOUISIANA NE
P.O. BOX 3070
87190
201 Third St. NW, Suite 500
Tatiana D. Engelmann
(505) 881-2566
2727 San Pedro NE | Suite 114
Mary T. Torres
201 Third St. NW, Suite 500
We help families solve problems.
attorney at law
CITY PLACE | SUITE 2000
2155 LOUISIANA NE
P.O. BOX 3070 (87190-3070)
P: 505.944.9030
F: 505.944.9091
[email protected]
(505) 883-3070
Fax (505) 889-3111
e-mail: [email protected]
web: www.atkinsonkelsey.com
[email protected]
www.nmdivorcecustody.com
Law Offices of
Law Offices of
Peter F. Staiti, llc
TED C. BACA
7400 Montgomery Blvd. NE, Suite 39, Albuquerque, NM 87109
Tel: (505) 243-9290 • Fax: (505) 715-5845 • [email protected]
7400 Montgomery Blvd. NE, Suite 39, Albuquerque, NM 87109
Tel: (505) 243-9290 • Fax: (505) 715-5845 • [email protected]
Attorney at Law • Retired Chief District Court Judge
Law Offices of
TED C. BACA
llc NM 87110
2727 San Pedro
Suite 114, Albuquerque,
F.NE,Staiti,
Peter
Attorney at Law
www.nmdivorcecustody.com
601 Calle del Pajarito N.W.
Albuquerque, New Mexico 87114
Suite 39
7400 Montgomery Blvd. NE,
Telephone (505) 883-3070 | Facsimile (505) 889-3111
www.AtkinsonKelsey.com
TED C. BACA
Law Offices of
Attorney at Law
601 Calle del Pajarito N.W.
Albuquerque, New Mexico 87114
7400 Montgomery Blvd. NE, Suite 39
Tel: (505) 243-9290 • Fax: (505) 715-5845
[email protected]
Retired Chief District Court Judge
Quality, full-color printing.
Local service with fast turnaround.
601 Calle del Pajarito N.W., Albuquerque, New Mexico 87114
For more information, contact Marcia Ulibarri
at 505-797-6058 or [email protected]
Ask about your member discount.
DIGITAL PRINT CENTER
39
rship
o
s
n
o
Sp
ities
n
u
t
r
Oppo able!
Avail
Sept. 30-Oct. 2, 2015
For information on sponsorship opportunities,
Annual Meeting Program Guide advertising
or exhibit space, contact Marcia Ulibarri
at 505-797-6058 or [email protected]

6/24 - State Bar

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