inside this issue - state bar of new mexico · pdf fileinside this issue april 9, ... day 1,...

Winter Scene Near Reserve, NM by Justice Patricio M. Serna, Ret. (see page 3)

Inside This Issue

April 9, 2014 • Volume 53, No. 15

Table of Contents ................................................... 3

Proposed Amendments to Supreme Court Rules of Practice and Procedure ........................... 4

Fifth Judicial District Court: Announcement of Vacancy ................................... 4

NREEL Section Happy Hour ................................ 5

Thank You, Veterans Clinic Volunteers............... 9

Clerk’s Certificates ................................................ 14

From the New Mexico Supreme Court

2014-NMSC-006, No. 33,497: Rayellen Resources, Inc. v. New Mexico Cultural Properties Review Committee ...... 18

From the New Mexico Court of Appeals

2014-NMCA-026, No. 32,164: Sherman v. Cimarex Energy Co. .................. 28

2014-NMCA-027, No. 31,571: Arias v. Phoenix Indemnity Insurance Company ....................................... 32

2 Bar Bulletin - April 9, 2014 - Volume 53, No. 15

Register online at www.nmbarcle.org or call 505-797-6020.

CENTER FOR LEGAL EDUCATION

Live Seminar CLE Planner

May

8-9

All live seminars are held at the State Bar Center, 5121 Masthead NE, Albuquerque. They include continental breakfast, breaks, buffet lunch, course materials,

and CLE credit filing and fees for New Mexico.

2014 Advanced Collaborative Practice Symposium: Focusing on Advocacy and InterestsMay 8-9 • State Bar Center, Albuquerque

Standard fee: $289NMCPG member, government, legal services attorneys and Paralegal Division members: $259

Co-sponsors: New Mexico Collaborative Law Group, Inc.

Featured Speakers: Sherri Goren Slovin, Sherri Goren Slovin and Associates, LPA; and Victoria Smith, Victoria Smith Collaborative Professional Corporation, Collaborative Practice and Mediation

Day 1, Thursday, May 8 2 p.m. Registration2:30-5 p.m. Collaborative Protocols—A Roadmap for Effective Team Practice5 p.m. Adjournment

Day 2, Friday, May 9 8:30 a.m. Registration8:45 a.m. The Initial Consultation Demonstration and Debrief How do we REALLY set the stage for a Collaborative Case?10 a.m. Break10:15 a.m. The Tensions of Collaborative Advocacy and the Role of Neutrality12:15 p.m. Lunch (provided at the State Bar Center)1 p.m. Mining for Interests—Going Deep 3 p.m. Break 3:15 p.m. The Interplay of Fairness, the Law and Interests4:15 p.m. Wrap Up4:30 p.m. Adjournment

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Bar Bulletin - April 9, 2014 - Volume 53, No. 15 3

Notices ................................................................................................................................................................4Legal Education Calendar .............................................................................................................................7Thank You, Veterans Clinic Volunteers ......................................................................................................9Writs of Certiorari ......................................................................................................................................... 11List of Court of Appeals’ Opinions ........................................................................................................... 13Clerk’s Certificates ......................................................................................................................................... 14Recent Rule-Making Activity ..................................................................................................................... 17Opinions

From the New Mexico Supreme Court2014-NMSC-006, No. 33,497: Rayellen Resources, Inc. v. New Mexico Cultural Properties Review Committee ............................................................................................................................. 18

From the New Mexico Court of Appeals2014-NMCA-026, No. 32,164: Sherman v. Cimarex Energy Co. .......................................... 28

2014-NMCA-027, No. 31,571: Arias v. Phoenix Indemnity Insurance Company .......... 32

Advertising ...................................................................................................................................................... 35

Officers, Board of Bar Commissioners Erika Anderson, President Martha Chicoski, President-Elect J. Brent Moore, Vice President Scotty A. Holloman, Secretary-Treasurer Andrew J. Cloutier, Immediate Past President

Board of Editors Ian Bezpalko, Chair George C. Kraehe Kristin J. Dalton Maureen S. Moore Jocelyn C. Drennan Tiffany L. Sanchez Jennifer C. Esquibel Mark Standridge Bruce Herr Joseph Patrick Turk

State Bar Staff Executive Director Joe Conte Managing Editor D.D. Wolohan 505-797-6039 • [email protected] Communications Coordinator Evann Kleinschmidt 505-797-6087 • [email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058 • [email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo

©2014, State Bar of New Mexico. No part of this publica-tion 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

April 9, 2014, Vol. 53, No. 15

Cover Artist: Born in the scenic mountain village of Reserve, N.M., retired Justice Patricio M. Serna displayed talent at a young age by drawing horses and deer. As an adult, he took art lessons in Santa Fe. He prefers acrylic and some watercolor for painting, which is primarily of New Mexico landscapes, sunsets, and winter and fall adobe scenes. He stopped painting while pursuing his legal career but plans to return to his painting roots now that he is retired from the N.M. Supreme Court. Justice Serna’s artwork is currently on display at the University of New Mexico School of Law.

Table of Contents

Meetings

April

9 Children’s Law Section BOD, Noon, Juvenile Justice Center

10 Public Law Section BOD, Noon, Montgomery and Andrews, Santa Fe

10 Business Law Section BOD, 4 p.m., via teleconference

11 Animal Law Section BOD, Noon, State Bar Center

11 Prosecutors Section BOD, Noon, State Bar Center

15 Solo and Small Firm Section BOD, 11:30 a.m.; Presentation, noon, State Bar Center

16 Law Practice Management Committee, Noon, State Bar Center

18 Family Law Section BOD, 9 a.m., via teleconference

18 Trial Practice Section BOD, Noon, State Bar Center

stAte BAr Workshops

April

23 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center

24 Consumer Debt/Bankruptcy Workshop, 5:30 p.m., The Law Office of Kenneth Egan, Las Cruces

MAy

7 Divorce Options Workshop 6 p.m., State Bar Center

7 Foreclosure Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

13 Civil Legal Clinic for Veterans 9 a.m.–noon, Raymond G. Murphy VA Medical Center, SCI Meeting Room, Albuquerque

24 Consumer Debt/Bankruptcy Workshop, 9 a.m., The Law Office of Kenneth Egan, Las Cruces

28 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center

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NoticesProfessionalism Tip

With respect to the courts and other tribunals:

I will voluntarily exchange information and work on a plan for discovery as early as possible.

Court neWsNew Mexico Supreme CourtProposed Amendments to Supreme Court Rules of Practice and Procedure In accordance with the Supreme Court’s new annual rulemaking process under Rule 23-106 NMRA, which in-cludes an annual publication of proposed rule amendments for public comment every spring, various Supreme Court Committees are considering whether to recommend for the Supreme Court’s consideration proposed amendments to the rules of practice and procedure summarized in the April 2 (Vol. 53, No. 14) Bar Bulletin. Those who would like to view the proposed amendments sum-marized before they are submitted to the Court for final consideration, may do so by visiting the Supreme Court’s website, http://nmsupremecourt.nmcourts.gov. Comments can be submitted electronically through the Court’s website, by email to [email protected], by fax to 505-827-4837, or by mail to Joey D. Moya, Clerk, New Mexico Supreme Court, PO Box 848, Santa Fe, New Mexico 87504-0848. Comments must be received by the Clerk on or before April 30. Any submitted comments may be posted on the Supreme Court’s website for public viewing.

First Judicial District CourtAnnouncement of Vacancy A vacancy on the First Judicial District Court will exist in Santa Fe as of May 21 due to the creation of an additional judge-ship by the Legislature. The new judge will be assigned to the general civil docket by Chief Judge Raymond Z. Ortiz. David Herring, Chair of the Judicial Nominat-ing Commission, solicits applications for this position from lawyers who meet the statutory qualifications in Article VI, Sec-

tion 14 of the New Mexico Constitution. Applications may be obtained from the judicial selection website, http://lawschool.unm.edu/judsel/application.php, or by calling Raylene Weis at 505-277-4700. The deadline for applications is 5 p.m., June 10. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the Of-fice of the Secretary of State. The Judicial Nominating Commission will meet at 9 a.m., June 19, at the Judge Steve Herrera Judicial Complex, 224 Montezuma Ave., Santa Fe, to evaluate the applicants for this position. The Commission meeting is open to the public and anyone who wants to voice his or her opinion about a candidate will be heard.

Second Judicial District CourtChallenge Notice Gov. Susana Martinez has announced the appointment of Marie Ward to fill the vacancy of Division XIV at the Second Judicial District Court. Effective March 31, Judge Ward, will be assigned Children’s Court cases previously assigned to Judge Reed Sheppard. Pursuant to Supreme Court Rule 1-088.1 parties who have not yet ex-ercised a peremptory excusal will have ten days from April 23 to excuse Judge Ward.

Investiture Ceremony for Judge Marie Ward The judges and employees of the Second Judicial District Court invite members of the legal community to at-tend the investiture ceremony of Judge Marie Ward, Division XIV. The ceremony will be held at 4:30 p.m., April 10, at the

Second Judicial District Court, 400 Lomas Blvd. NW, Albuquerque, Frank H. Allen Jr. Ceremonial Courtroom 338. A reception will follow immediately in the third floor conference center. Judges who want to participate in the ceremony should bring their robes and report to jury room 338A between 4–4:25 p.m.

Fifth Judicial District CourtAnnouncement of Vacancy A vacancy on the Fifth Judicial District Court will exist in Lovington as of May 21, due to the creation of an additional Judgeship by the Legislature. This will be for a General Jurisdiction Judge for District, Division XI. Inquiries regarding additional details or assignment of this judicial vacancy should be directed to the Chief Judge or the Administrator of the court. David Herring, Chair of the Judicial Nominating Commission, solicits applica-tions for this position from lawyers who meet the statutory qualifications in Article VI, Section 14 of the New Mexico Con-stitution. Applications may be obtained from the Judicial Selection website: http://lawschool.unm.edu/judsel/application.php, or by calling Raylene Weis at 505-277-4700. The deadline for applications has been set for 5 p.m., May 27. Applicants seeking information regarding 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 June 6, at the Lea County Courthouse, Courtroom #3, 100 N. Main St., Lovington, to evaluate the ap-plicants for this position. The Committee meeting is open to the public.

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 Exhibits/Tapes For Years May Be Retrieved Through2nd Judicial District Court Domestic Matters/Relations 1987–1994 June 5505-841-7596/6717 and Domestic Violence

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Bernalillo County Metropolitan CourtEnhanced Record Access at Bernalillo County Metropolitan Court Viewing Room In an effort to replace the extensive access to online information historically available to Metro Court’s justice partners and attorneys, Metro Court has worked with AOC’s Judicial Information Division to provide information. Metro Court is not authorized to make major changes to the statewide Odyssey system or the public access, but in an effort to make as much information as possible available, the Court is making the following changes, effective immediately. Metro Court will post daily judicial calendars at http://www.metrocourt.state.nm.us/xnet/pdf/DailyHearingCalendar.pdf and will al-low greater access in the Court’s Records Viewing Room. Specifically, the Court will provide access to archived information (AS400); NMCOURTS.GOV for Odyssey and statewide case information; and, for licensed attorneys, to the secure Odyssey Public Access. This OPA was developed by JID and Tyler Technologies for access by justice partners and is also now avail-able for attorneys in a format that mirrors the information available to other justice partners (i.e., law offices of the Public Defender, DA, and MDC).

stAte BAr neWsAttorney Support Groups• April 14, 5:30 p.m. UNM School of Law, 1117 Stanford

NE, Albuquerque, Room 1119 (The group meets the second Monday of the month.)

• April 21, 7:30 a.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the third Monday of the month.)

• May 5, 5:30 p.m. First United Methodist Church, 4th

and Lead SW, Albuquerque (The group meets the first Monday of the month.)

• For more information, contact Bill Stratvert, 505-242-6845.

Natural Resources, Energy, and Environmental Law SectionSection Happy Hour Natural Resources, Energy, and En-vironmental Law Section members are invited to happy hour from 5:30-7:30 p.m., April 24, at Seasons Rotisserie & Grill.

Appetizers and one drink ticket will be provided to section members who R.S.V.P. to Evann Kleinschmidt, [email protected] by April 21.

New Mexico Medical Review CommissionCLE Fee Waiver Opportunity The New Mexico Medical Review Commission, in an effort to recruit new Commission members and to reward existing members, is offering panelists the opportunity to have their fee waived on the NMMRC’s five-hour medical malpractice CLE Dec. 19. Those interested should serve on four panels before Dec. 1. Current members should watch for more infor-mation in their next panel pack. Those seeking to become members should visit http://www.nmms.org/sites/default/files/images/2014_3_12_sign_up_for_panelist.pdf.

Public Law SectionAlbert Lama Named 2014 Public Lawyer of the Year Albert J. Lama has been named as the 2014 Public Lawyer of the Year by the Public Law Section for the dedication and distinction of his long career as a public lawyer. Most of his 25-year career has been spent in the state Attorney General’s Office in senior positions, including as director of the civil division and his current position of chief deputy attorney general. Lama was chief hearing officer for the state Taxation and Revenue Department and served as the district director in Santa Fe for then-Congressman Tom Udall. He has participated in training members of the public and other lawyers about public issues, particularly those relative to the Inspection of Public Records Act, Open Meetings Act, and ethical issues faced by public lawyers. Lama will be presented with the award at a ceremony at 4 p.m., May 1, at the Capitol Rotunda in Santa Fe. State Bar President Erika Anderson will speak at the ceremony. Chief Justice Barbara J. Vigil and Attorney General Gary King also have been invited to speak.

Solo and Small Firm SectionPresentation Features Columnist Jolene Gutierrez Kruger The Solo and Small Firm Section welcomes members to its monthly board meetings at 11:30 a.m. at the State Bar Center, followed by a speaker at noon.

New Mexico Lawyers and Judges

Assistance Program

Help and support are only a phone call away. 24-Hour Helpline

Attorneys/Law Students505-228-1948 • 800-860-4914

Judges888-502-1289

www.nmbar.org/JLAP/JLAP.html

New Mexico Lawyer

This insert in the Bar Bulletin is published quarterly by sections or other groups focusing

on a single topic or theme of interest to the legal community. Contact D.D. Wolohan, 505-797-6039 or [email protected].

On April 15, Jolene Gutierrez Kruger, a columnist for the Albuquerque Journal, will present “Mary, Levi, and the Journalistic Responsibilities of a Reporter.” Krueger has investigated many law-related cases for her front-page column. R.S.V.P. to [email protected] by April 14 to guarantee lunch.

Trial Practice SectionNotice of Vacancies The Trial Practice Section is seeking members to fill three vacant positions on the board of directors. The purpose of the Section is to promote the administration of justice by improving the caliber of trial practice and procedure in the courts of New Mexico and to afford the members of the State Bar the opportunity to increase their knowledge and to improve their skills as trial practitioners. The general expecta-tion of board members is to actively attend the monthly board meetings and lend their expertise in improving the Trial Practice Section. The board meets the third Friday of each month at noon at the State Bar Center in Albuquerque. New attorneys as well as seasoned attorneys are encour-aged to apply. Members from outside of


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Albuquerque are strongly encouraged to apply as members may participate in the monthly meetings in person or by teleconference. Those interested should send a letter of interest and résumé to Section Chair Denise A. Snyder, [email protected], by April 18.

Young Lawyers DivisionBridge the Gap Mentorship Program Forum The Young Lawyers Division will be holding a forum about the Bridge the Gap Mentorship Program at 11:30 a.m.–1:30 p.m., June 5, at the State Bar Center. Past mentors and mentees are particularly welcome to share their thoughts on ways to improve the program that matches a veteran attorney with a new attorney in a one-year mentorship. Lunch will be served. R.S.V.P. to Evann Kleinschmidt, [email protected].

unMLaw LibraryHours Through May 17Building & Circulation

Monday–Thursday 8 a.m.–10 p.m.Friday 8 a.m.–6 p.m.Saturday 8 a.m.–5 p.m.Sunday Noon–8 p.m.

ReferenceMonday–Friday 9 a.m.–6 p.m.Saturday–Sunday Closed

Native American Law Student AssociationGolf Tournament All are invited to attend the UNM Na-tive American Law Student Association Golf Tournament on April 9 at Towa Golf Course, 40 Buffalo Thunder Trail, Santa Fe during the Federal Bar Association’s Indian Law Conference. Registration is at noon, with a shotgun start at 1 p.m., and a reception following the tournament. The cost for individual players is $125 and includes greens fee, cart, and range balls. For more information and to register, visit http://lawschool.unm.edu/students/organizations/nalsa/index.php.

other BArsAlbuquerque Bar AssociationLaw Day Celebration To celebrate Law Day, the Albuquerque Bar Association will host a luncheon pro-

gram at 11:45 a.m., May 1, at the Crowne Plaza Hotel, 1901 University Blvd. NE, Albuquerque. The keynote speaker will be John Hardin Young, counsel at Sandler, Reiff, Young and Lamb, PC, and chair of the American Bar Association Advisory Committee on Election Law. Register by noon, April 24, online at www.abqbar.org. For information about sponsorship opportunities, email Terah Beckmann, [email protected].

New Mexico Hispanic Bar AssociationLuncheon and Ethics CLE The New Mexico Hispanic Bar As-sociation presents a luncheon and ethics CLE on May 16 at Artichoke Café, 424 Central Ave. SE, Albuquerque. Gabriel Sanchez, Ph.D., UNM political science professor and director of research for Latino Decisions, will be the keynote speaker at the luncheon from 12:30–1:45 p.m. U.S. District Court Judges Kenneth Gonzales and Lorenzo Garcia will present “Tips for Achieving an Ethical and Profes-sional Practice” (1.0 EP, pending MCLE approval) from 2–3 p.m. For registration and more information, visit www.nmhba.net.

Meet and Greet Events in Las Vegas and Roswell The New Mexico Hispanic Bar Asso-ciation is hosting meet-and-greet events in Las Vegas and Roswell, N.M. The Las Vegas event, co-sponsored by Michael Aragon of the Aragon Law Office, will be from 6-9 p.m., April 11, at the Plaza Hotel, 230 Plaza Park. The Roswell Event is scheduled for 5:30 p.m., April 24, at the Pecos Flavors Winery. It is co-hosted by the New Mexico Hispanic Bar As-sociation, Young Lawyers, Division and the Women’s Bar Association. To R.S.V.P., email [email protected] or visit http://nmhba.net/.

Women’s Bar AssociationWBA Pathway to the Judiciary CLE Former Chief Justice Petra Jimenez Maes, Hon. Linda Vanzi, Hon. C. Shan-non Bacon, and Hon. Karen Molzen will present “Pathway to the Judiciary” (1.0 G, 1.0 EP), an engaging panel discussion on applying for a judicial vacancy, the applica-tion and nomination process, running in a judicial election, what the day-to-day life of a judge is like, and how entering

the judiciary impacts life. The program will be from 2–5 p.m., April 25, at Hotel Andaluz. Register early as space is limited. Email [email protected] for registration details.

other neWsChristian Legal AidTraining Seminar New Mexico Christian Legal Aid invites new members to a refresher seminar from noon–5 p.m., April 25, at the State Bar Center. Enjoy free lunch, CLE credits, and training while updating skills on how to provide legal aid. For more information or to register, contact Jim Roach at 505-243-4419 or Jen Meisner at 505-610-8800 ([email protected]).

New Mexico Lawyers for the ArtsCLE Opportunity New Mexico Lawyers for the Arts and The Albuquerque Film Office present “Sight, Sound and the Law: Common Legal Issues and Solutions in Audio Visual Production: A Lecture” (2.5 G) from 1–3:30 p.m., April 12, at the South Broadway Cultural Center, 1025 Broadway Blvd SE, Albuquerque. Cost: attorneys, $150; filmmakers and non-attorneys, $10; students and NMLA members, free. Payment will be accepted at the door by check or cash. For directions, call 505-848-1320. For more information, email [email protected].

Native and Cultural Appropriation Panel Discussion New Mexico Lawyers for the Arts, Evoke Gallery, and the Indian Law Section present “Native and Cultural Appropria-tion in Art and Law: A Panel Discussion” at 4 p.m., April 19, at Evoke Gallery, 550 South Guadalupe St., Santa Fe. The panel panel of experts will discuss current events and cases including the Paul Frank col-laboration with the Institute of American Indian Arts, the Navajo Nation versus Urban Outfitters case, the Redskin case, the Zia Symbol, and other current issues in native and cultural appropriation. Panel-ists include: Ryan Rice, Amber-Dane Bear Robe, and Ross Cheney. The panel discus-sion is presented as a part of Art Matters Week hosted and organized by the Santa Fe Gallery Association.



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April

9 Review and Negotiating Franchise Agreements, Part 2

2.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

11 From Workers’ Compensation to Social Security: Complementary Areas to Build Your Practice

5.5 G Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

15 2013 Real Property Institute 5.5 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

15 2013 Family Law Institute Day 2 6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

15 Managing the Present and Planning for the Future A Look at Assisting Lawyers with Capacity Challenges and Planning for Succession

2.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

15 Ethicspalooza: Proper Trust Accounting


15 Creditor Interests in LLCs/ Partnerships


22–23 Law of Religious Organizations, Parts 1–2


25 The Brain-Smart Negotiator: Skills and Practices for the Effective Litigator


25 33rd Annual Update on New Mexico Tort Law

Live Seminar Crowne Plaza Albuquerque New Mexico Trial Lawyers’ Foundation 6.2 G 505-243-6003 www.nmtla.org

29 2013 Employment and Labor Law Institute

5.0 G, 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

29 Fluff is for Pillows, Not Legal Writing

2.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

29 Ethicspalooza: Charging a Reasonable Fee


29 Practical Tips and Advice from Judge Alan Torgerson


29 Ethicspalooza: The Ethics of Social Media Use


29 Sale/Leaseback Transactions in Real Estate


30 Ethics, Technology and Small Firms 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

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May

1 Trusts and the New Medicare Tax 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

2 3rd Annual Public Access to Government Seminar

6.0 G, 1.0 EP Live Seminar New Mexico Foundation for Open

Government 505-764-3750 www.nmfog.org

6 The 29th Annual Bankruptcy Year in Review


6 Solo and Small Firm Annual Institute “Practice Management: What You

Don’t Know Can Hurt You” 3.5 G, 2.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

6 Wildlife Law 6.7 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

6 Limitations on Closely Held Company Owners-Business Opportunities and Non-competes


8–9 2014 Advanced Collaborative Practice Symposium


9 Ethics of Beginning and Ending an Attorney-Client Relationship

1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

15 Role of “Trust Protectors” in Trust Planning


16 Ethics of Working With Witnesses

1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

20 Skeptically Determining the Limits of Scientific Evidence V


20 Navigating the Privileges Minefield 5.5 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

20 The Fear Factor: How Good Lawyers Get Into Bad Trouble


20 2014 Sexual Harassment Update 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org

21 Techniques for Tax Efficiently Withdrawing Capital From a Closely Held Company


27 Securities Issues for Closely Held Companies


28 UCC Issues in Real Estate Transactions


29 Trust Investments: A Guide to Trustee Duties & Liability Under the UPIA


30 Attorney Ethics and Social Media 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbarcle.org



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Vic CarlinJennifer CostonAnnette DeBoisDana DotoliKymberleigh DoughertyChris Garcia

Thank you to the volunteers at the Veterans Civil Justice Initiative.

The VCJI would not be possible without your selfless commitment to our veterans.

YOUNG LAWYERS DIVISION

For any attorneys, paralegals, law students, and do-gooders interested in volunteering, VCJI clinics are held on the second Tuesday of each month, from 9 a.m. to noon at the Raymond G. Murphy VA Medical Center in Albuquerque. The next clinic is Tuesday, May 13. Volunteers show up between 8 and 8:30 a.m. for orientation, introductions, and announcements. No special training or certification is required. Contact Keya Koul at [email protected], or Greg Gambill, [email protected] to sign up. See you at a clinic soon!

Attorneys

Community Stakeholders

Vicki HuntCalvin HyerMary Ann JocaMichael LashNiva LindDonna Lynch

Jim MartinFred MartinezMartin MartinezRob MeadRebecca MnukGeoff Nims

Scott PistoneLouise PocockKate RubiTania SilvaPaul SplettJim Wood

Denise Deiterman, USBCJan Downs, non-attorneyJeff George, New Mexico Department of Veterans ServicesCamila Lopez, New Mexico VA Health Care SystemAlan Martinez, Deputy Secretary, New Mexico Department

of Veterans ServicesLinda Murphy, State Bar of New Mexico Paralegal DivisionDeb Norman, U.S. Bankruptcy Court, non-attorney

volunteer

Holly Ponder, Goodwill IndustriesFelipe Quintana, Volunteer Attorney Program, NMLAOfficer Peter Rechkemmer, U.S. Citizenship and

Immigration Services, DHSEarl Roybal, New Mexico VA Health Care SystemAndy Salas non-attorney, 13th Judicial District Court

volunteer, Vietnam veteranMichele Tyson-Marsh, New Mexico Department of

Veterans Services

At the clinic on March 11, these volunteers served approximately 100 veterans, the most of any clinic so far.




At the invitation of the Union of Cuban Jurists, the State Bar of New Mexico is organizing a delegation to visit Cuba to research the country’s legal system. State Bar President Erika Anderson will lead the delegation. We invite you to join in this unique opportunity.

This delegation will convene in Miami, on Oct. 5, and will return to Miami on Oct. 10. Please see www.professionalsabroad.org for itinerary details.

Our delegation will undertake a comprehensive study of the Cuban legal system, from the teaching of law, to the criminal justice and judicial systems; civil and family code; business and commercial rights; and resolving domestic and international commercial conflicts. CLE credit will not be available.

A parallel program of people-to-people activities will be available for spouses and guests.

For more information, Professionals Abroad, 1-877-298-9677 or www.professionalsabroad.org

CUBACUBA

Law Day Call-in is Saturday, April 26, 9 a.m. to 1 p.m., at the State Bar Center and at regional locations.

Volunteers should sign up with their regional YLD director.

Albuquerque: Spencer Edelman, [email protected]: Ken Stalter, [email protected]: Tim Scheiderer, [email protected] New Mexico: Erin Atkins, [email protected]

YOUNG LAWYERS DIVISION

http://www.professionalsabroad.org








Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Writs of CertiorariAs Updated by the Clerk of the New Mexico Supreme Court

Petitions for Writ of Certiorari Filed and Pending:

Date Petition FiledNo. 34,604 Lopez v. State 12-501 03/21/14No. 34,605 State v. Lee COA 31,661 03/24/14No. 34,606 French v. Hickson 12-501 03/25/14No. 34,607 Lucero v.

Northland Insurance COA 32,426 03/25/14No. 34,608 State v. Baca COA 33,286 03/26/14No. 34,614 State v. Mitchelle COA 32,956 03/26/14No. 34,612 Valtierra v. State 12-501 03/27/14No. 34,611 Musacco v. Franco 12-501 03/28/14No. 34,613 Ramirez v. State COA 31,820 03/28/14No. 34,602 State v. Arreola COA 32,205 03/19/14No. 34,600 State v.

Dominguez COA 32,546/31,975 03/19/14No. 34,599 State v. Lucero COA 33,011 03/19/14No. 34,598 State v. Gleeson COA 33,022 03/18/14No. 34,588 State v. Vigil COA 32,291/32,292 03/12/14No. 34,587 State v. Angelo M. COA 33,026 03/12/14No. 34,586 State v. Thomas COA 33,169 03/12/14No. 34,585 State v. Perez COA 31,980 03/12/14No. 34,584 Escobar v.

Sunray Gaming COA 32,846 03/12/14No. 34,583 State v. Djamila B. COA 32,333 03/12/14No. 34,582 State v. Sanchez COA 32,862 03/11/14No. 34,573 El Paso Machine & Steel v.

DND Contractors COA 33,214 03/05/14No. 34,563 Benavidez v. State 12-501 02/25/14No. 34,554 Miller v.

Bank of America COA 31,463 02/19/14No. 34,550 Jernigan v. Romero 12-501 02/17/14No. 34,560 Hartzell v. State 12-501 02/11/14No. 34,542 Chase v. State 12-501 02/06/14No. 34,470 MacLennan v. Michel COA 31,026 02/03/14 Response ordered; due 4/21/14No. 34,476 State v. Pfauntsch COA 31,674 01/27/14 Response ordered; due 3/17/14No. 34,467 Bertola v. State 12-501 01/17/14No. 34,501 Snow v. Warren Power COA 32,335 01/13/14No. 34,289 Tafoya v. Stewart 12-501 08/23/13No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,170 Holguin v. Nance 12-501 05/23/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but not yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,952 Melendez v.

Salls Brothers COA 32,293 01/18/13No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 34,076 State v. Martinez COA 32,424 04/19/13No. 34,124 State v. Cortina COA 30,317 05/24/13No. 34,122 State v. Steven B. consol. w/

State v. Begaye COA 31,265/32,136 07/12/13No. 34,204 Faber v. King COA 31,446 07/12/13No. 33,994 Gonzales v. Williams COA 32,274 08/30/13No. 33,863 Murillo v. State 12-501 08/30/13No. 33,810 Gonzales v. Marcantel 12-501 08/30/13No. 34,271 State v. Silvas COA 30,917 09/20/13No. 34,300 Behrens v. Gateway COA 31,439 09/27/13No. 34,286 Yedidag v.

Roswell Clinic Corp. COA 31,653 09/27/13No. 34,349 Harrison v. Lovelace Health

System, Inc. COA 32,215 10/18/13No. 34,311 State v. Favela COA 32,044 10/18/13No. 34,295 Dominguez v. State 12-501 10/18/13No. 34,380 Cohen v.

Continental Casualty Co. COA 32,391 11/15/13No. 34,365 Potter v. Pierce COA 31,595 11/15/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,398 State v. Garcia COA 31,429 12/04/13No. 34,387 Perea v. City of

Albuquerque COA 31,605/32,050 12/04/13No. 34,400 State v. Armijo COA 32,139 12/20/13No. 34,455 City of Santa Fe v.

Tomada COA 32,407 01/10/14No. 34,435 State v. Strauch COA 32,425 01/10/14No. 34,499 Perez v. N.M. Workforce

Solutions Dept. COA 32,321/32,330 02/07/14No. 34,498 Hightower v. State 12-501 02/07/14No. 34,488 State v. Norberto COA 32,353 02/07/14No. 34,487 State v. Charlie COA 32,504 02/07/14No. 34,447 Loya v. Gutierrez COA 32,405 02/07/14No. 34,443 Aragon v. State 12-501 02/14/14No. 34,516 State v. Sanchez COA 32,994 02/14/14No. 34,473 Mandeville v.

Presbyterian Healthcare COA 32,999 03/07/14No. 34,548 State v. Davis COA 28,219 03/14/14No. 34,546 N.M. Dept. Workforce Solutions v.

Garduno COA 32,026 03/14/14No. 34,558 State v. Ho COA 32,482 03/21/14No. 34,549 State v. Nichols COA 30,783 03/28/14No. 34,526 State v. Paananen COA 31,982 03/28/14No. 34,522 Hobson v. Hatch 12-501 03/28/14

Effective March 28, 2014


Writs of CertiorariCertiorari Granted and Submitted to the Court:

(Submission Date = date of oral argument or briefs-only submission) Submission Date

No. 32,860 State v. Stevens COA 29,357 01/10/12No. 33,296 State v. Gutierrez COA 29,997 09/12/12No. 33,014 State v. Crane COA 29,470 11/13/12No. 33,324 State v. Evans COA 31,331 11/26/12No. 33,483 State v. Consaul COA 29,559 12/17/12No. 33,382 N.M. Human Services v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,383 Presbyterian Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,384 Cimarron Health Plan v.

Starko, Inc. COA 29,016/27,922 01/15/13No. 33,594 Fallick v. Montoya COA 30,172 03/13/13No. 33,589 Zhao v. Montoya COA 30,172 03/13/13No. 33,632 First Baptist Church of Roswell v.

Yates Petroleum COA 30,359 03/13/13No. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,567 State v. Leticia T. COA 30,664 04/30/13No. 33,566 State v. Leticia T. COA 30,664 04/30/13No. 33,592 State v. Montoya COA 30,470 05/15/13No. 33,565 State v. Ballard COA 30,187 05/30/13No. 33,226 State v. Olsson COA 29,713 05/30/13No. 33,971 State v. Newman COA 31,333 07/24/13No. 33,808 State v. Nanco COA 30,788 08/14/13No. 33,862 State v. Gerardo P. COA 31,250 08/14/13No. 33,993 Fowler v. Vista Care and American

Home Insurance Co. COA 31,438 08/14/13No. 33,896 Rodriguez v. Del Sol

Shopping Center COA 30,421/30,578 08/26/13No. 33,949 Rodriguez v. Del Sol

Shopping Center COA 30,421/30,578 08/26/13No. 33,770 Vaughn v.

St. Vincent Hospital COA 30,395 08/26/13No. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,938 State v. Crocco COA 31,498 08/28/13No. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 09/11/13No. 34,007 City of Albuquerque v.

AFSCME Local 3022 COA 31,075 09/24/13No. 34,039 Cavu Co. v. Martinez COA 32,021 09/30/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13No. 34,083 Amethyst v. Terhune COA 31,165 10/28/13

No. 33,847 State v. Urquizo COA 30,337 10/30/13No. 34,013 Foy v. Austin Capital COA 31,421 11/14/13No. 33,970 State v. Parvilus COA 30,379 11/25/13No. 34,085 Badilla v. Walmart COA 31,162 12/04/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,126 State v. Maurice H. COA 31,597 12/16/13No. 34,128 Benavides v.

Eastern N.M. Medical COA 32,450 12/18/13No. 33,604 State v. Ramirez COA 30,205 01/14/14No. 34,009 State v. Huettl COA 31,141 01/14/14No. 33,870 State v. Perez COA 31,678 01/15/14No. 33,796 State v. Vasquez COA 29,868 01/15/14No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,194 King v. Faber COA 34,116 02/24/14No. 33,999 State v. Antonio T. COA 30,827 02/26/14No. 33,997 State v. Antonio T. COA 30,827 02/26/14No. 34,150 Kimbrell v.

Kimbrell COA 30,447/31,491 03/24/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,120 State v. Baca COA 31,442 03/26/14No. 34,235 State v. Alverson COA 32,046 04/28/14No. 33,754 State v. Garcia 12-501 04/29/14

Petition for Writ of Certiorari Quashed:

Date Order FiledNo. 34,074 State v. Maples COA 30,507 03/28/14

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 34,591 Estrada v. Janecka 12-501 03/28/14No. 34,575 State v. Vallejos COA 33,061 03/28/14No. 34,572 Roybal v.

N.M. Corrections Dept. COA 33,266 03/28/14No. 34,570 State v. Wisely COA 32,088 03/28/14No. 34,569 State v. Salas COA 32,585 03/28/14No. 34,568 State v. Jones COA 32,448 03/28/14No. 34,564 State v. Nappi COA 31,609 03/28/14No. 34,321 Skidgel v. Hatch 12-501 03/28/14No. 34,567 State v. James COA 33,020 03/25/14No. 34,566 State v. Montoya COA 32,682 03/25/14No. 34,565 State v. Kirk COA 32,464 03/25/14No. 34,559 State v. Hernandez COA 30,978 03/25/14


OpinionsAs Updated by the Clerk of the New Mexico Court of Appeals

Wendy F. Jones, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925

Effective March 28, 2014

Slip Opinions for Published Opinions may be read on the Court’s website:http://coa.nmcourts.gov/documents/index.htm

Published Opinions

No. 32325 2nd Jud Dist Bernalillo CR-04-1388, CR-06-1883, STATE v G HINOJOS (reverse and remand) 03/27/2014

Unublished Opinions

No. 33152 2nd Jud Dist Bernalillo CV-10-14476, R GINKO v B CUCCHETTI (affirm) 03/24/2014No. 33209 7th Jud Dist Sierra DM-12-03, M CASTILLO v J VALDEZ (affirm) 03/24/2014No. 33259 9th Jud Dist Curry CR-12-241, STATE v E BONNEY (affirm) 03/24/2014No. 32497 3rd Jud Dist Dona Ana CR-10-1060, STATE v S JAQUES (affirm) 03/24/2014No. 32611 2nd Jud Dist Bernalillo CR-10-3543, STATE v T WEISS (affirm) 03/24/2014 No. 32986 1st Jud Dist Santa Fe CV-12-118, T SERTFEGER v D RISSLING (affirm) 03/27/2014No. 33060 6th Jud Dist Grant CR-12-161, STATE v J MILLER (affirm) 03/27/2014No. 33289 2nd Jud Dist Bernalillo LR-10-90, STATE v R THOMAS (affirm) 03/27/2014

http://coa.nmcourts.gov/documents/index.htm


Clerk’s CertificatesFrom the Clerk of the New Mexico Supreme CourtJoey D. Moya, Chief Clerk New Mexico Supreme Court

PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Dated March 21, 2014

Clerk’s Certificate of Address and/or

Telephone Changes

Shari Lynn AllisonOffice of the Federal Public Defender506 S. Main Street, Suite 400Las Cruces, NM 88001575-527-6930575-527-6933 (fax)[email protected]

Autumn R. BerghOffice of the Fourth Judicial District AttorneyPO Box 20251800 New Mexico AvenueLas Vegas, NM 87701-2025505-425-6746505-425-9372 (fax)[email protected]

Jennifer Lee BradleyOffice of the City AttorneyPO Box 1293One Civic Plaza Drive NW, Room 7012Albuquerque, NM 87103-1293505-768-3320505-768-3355 (fax)[email protected]

Edward DeV. Bunn Jr.Firth Johnston Bunn Kerr, PLCPO Box 942415 N. Mesa, Third Floor (79901)El Paso, TX 79946-0942915-532-7500915-532-7503 (fax)[email protected]

Sue A. Callaway10177 Countryside WaySacramento, CA 95827

Pamela G. CandelariaOffice of the Eighth Judicial District Attorney105 Albright Street, Suite LTaos, NM 87571-6170575-758-8683575-758-7802 (fax)[email protected]

Connor Lee CantrellThe Hustead Law Firm, PC4643 S Ulster Street, Suite 1250Denver, CO 80237303-721-5000303-721-5001 (fax)[email protected]

Carmela ChavezPO Box 3868Albuquerque, NM [email protected]

Mary Frances ChavezPO Box 13001Albuquerque, NM [email protected]

Mary Martha ChicoskiChicoski Law Firm, LLC4801 Lang Avenue NE, Suite 110Albuquerque, NM 87109505-798-2520505-796-9601 (fax)[email protected]

Brian M. CloseClose Law Firm, PC1803 Rio Grande Blvd. NW, Suite B-2Albuquerque, NM 87104505-796-4878505-246-0900 (fax)[email protected]

Elisa Christine DimasOffice of the Second Judicial District Attorney520 Lomas Blvd. NWAlbuquerque, NM 87102-2118505-222-1223505-241-1223 (fax)[email protected]

Josh E. EdenEden Law Office, LLC6707 Academy Road NE, Suite AAlbuquerque, NM 87109505-821-5122505-821-6868 (fax)[email protected]

Aric Grant ElsenheimerOffice of the Federal Public Defender506 S. Main Street, Suite 400Las Cruces, NM 88001575-527-6930575-527-6933 (fax)[email protected]

Jama E. FiskOffice of the State EngineerPO Box 25102130 S. Capitol Place, Suite 800Santa Fe, NM 87504-5102505-827-4156505-827-4200 (fax)[email protected]

Ronald Gould540 Old Bee Tree RoadSwannanoa, NC 28778

Erenio Gutierrez Jr.Erenio Gutierrez Jr., Attorney at Law, PCPO Box 352787001 Menaul Blvd. NE, Suite G (87110)Albuquerque, NM 87176-5278505-345-9394505-345-0775 (fax)[email protected]

David P. Hegge8621 Avenales NEAlbuquerque, NM [email protected]

Kevin P. HolmesMcGinn, Carpenter, Montoya, & Love, PA201 Broadway Blvd. SEAlbuquerque, NM 87102-3424505-843-6161505-242-8227 (fax)[email protected]

Rachel Sarah King22626 Calverton RoadShaker Heights, OH 44122

Mark E. KomerLong, Komer & Associates, PAPO Box 50982200 Brothers RoadSanta Fe, NM 87502-5098505-982-8405505-982-8513 (fax)[email protected]

Nancy Ruth LongLong, Komer & Associates, PAPO Box 50982200 Brothers RoadSanta Fe, NM 87502-5098505-982-8405505-982-8513 (fax)[email protected]

Victor S. Lopez622 Graceland Drive SEAlbuquerque, NM [email protected]

Gussie A. LordJill Grant & Associates1319 F Street NW, Suite 300Washington, DC 20004202-821-1950202-459-9558 (fax)[email protected]

Barbara MandelOffice of the Federal Public Defender506 S. Main Street, Suite 400Las Cruces, NM 88001575-527-6930 Ext. 312575-527-6933 (fax)[email protected]

Justin W. MillerLong, Komer & Associates, PAPO Box 50982200 Brothers RoadSanta Fe, NM 87502-5098505-982-8405505-982-8513 (fax)[email protected]

Kenny C. Montoya1130 Mountain Road NW, #1Albuquerque, NM [email protected]


























Clerk’s Certificates http://nmsupremecourt.nmcourts.gov.

Frank E. Murchison IIIPO Box 700215 Lund StreetTaos, NM 87571-0700575-751-3156575-751-3157 (fax)[email protected]

Sarita NairPO Box 7162Albuquerque, NM [email protected]

Evaristo Otero400 7th Street SWWashington, DC [email protected]

Linda Ramsey5105 Thousand Palms LaneLas Vegas, NV [email protected]

Bruce C. Redd409 2nd Street NERio Rancho, NM 87124505-892-8428

James M. Rosel9531 Callaway Circle NEAlbuquerque, NM [email protected]

Kristin L. Seewald225 Washington WayRidgecrest, CA [email protected]

Cindy R. Ten Pas16275 W. Wisconsin Avenue, #106Brookfield, WI [email protected]

Ryan Lee Turman112 SW 8th Avenue, Suite 301-JAmarillo, TX 79101806-350-7395806-350-7396 (fax)[email protected]

Karlos UlibarriPO Box 25664830 Fifth Street NW (87102)Albuquerque, NM 87125-5664505-242-6220505-242-6441 (fax)[email protected]

Andrew M. Vallejos1115 Lead Avenue SWAlbuquerque, NM [email protected]

Raymond T. Van Arnam1110 Dexter LaneAlamogordo, NM [email protected]

Stephen B. WallerMiller Stratvert, PAPO Box 25687500 Marquette Avenue NW, Suite 1100 (87102-5326)Albuquerque, NM 87125-0687505-842-1950505-243-4408 (fax)[email protected]

Little V. WestLong, Komer & Associates, PAPO Box 50982200 Brothers RoadSanta Fe, NM 87502-5098505-982-8405505-982-8513 (fax)[email protected]

Clerk’s Certificate of Reinstatement to

Active Status

As of March 5, 2014:Kimberly L. AldermanPO Box 2001Madison, WI 53701-2001

Pamela Lord Matthews632 Copita LaneSanta Fe, NM 87505

As of March 15, 2014:Sheri B. Asbell16 Nottingham LaneBoerne, TX 78006

As of March 15, 2014:Michelle L. FontenotCMR 480 Box 1169APO, AE 09128

Clerk’s Certificate of Withdrawal

Effective March 13, 2014:Wayne Herbert Bladh834 El CaminitoSanta Fe, NM 87505

Effective March 11, 2014:Isabel Azucena Bronzina960 Medford RoadPasadena, CA 91107

Effective March 7, 2014:Enid Cardozo901 Los Arboles NWAlbuquerque, NM 87107-1139

Effective March 12, 2014:Michael Coffin Currier Haley12493 Forest Canyon DriveParker, CO 80138

Effective March 14, 2014:Janis Elliott Hawk11401 Pino Avenue NEAlbuquerque, NM 87122

Effective March 11, 2014:Barry L. Hjort1621 West BoulevardRapid City, SD 57701

Effective March 12, 2014:Ellen Rhona Kemper2300 W. Alameda, #B-1Santa Fe, NM 87507

Effective March 10, 2014:Dolores R. Duran Klingbeil4628 Miramar Drive NWAlbuquerque, NM 87114

Effective March 18, 2014:Kari Morales MarshPO Box 2625Tucson, AZ 85702-2625

Effective March 11, 2014:James M. MorganLanzone Morgan, LLP5001 Airport Plaza Drive, Suite 210Long Beach, CA 90815

Effective March 12, 2014:Daniel E. Pedrick5201 Foothills Trail NEAlbuquerque, NM 87111

Effective March 11, 2014:Marc Prelo3770 Clubhouse CourtRocklin, CA 95765

Effective March 12, 2014:Julie Kay Reagan36 Mount Vernon PlaceTijeras, NM 87059

Effective March 5, 2014:Robert K. Sauer12 Kettle CloseWesterly, RI 02891

Effective March 10, 2014:Eliot G. Shapleigh701 N. St. VrainEl Paso, TX 79902

Effective March 11, 2014:Sarah Y. Vogel2343 NW 95th StreetSeattle, WA 98117

In Memoriam

As of July 5, 2013:David F. Cargo6422 Concordia NEAlbuquerque, NM 87111-1228

As of September 2, 2013:Susan R. StockstillPO Box 9318Santa Fe, NM 87504-9318

Clerk’s Certificate of Change to

Inactive Status

Effective January 22, 2014:William Cooke119 Wildflower RoadValatie, NY 12184

Effective March 8, 2014:Christopher P. Ryan705 Calle BeatriceSanta Fe, NM 87501-2973

Effective February 28, 2014:Amy Brianne HauryPO Box 50231Albuquerque, NM 87181-0231
















Clerk’s Certificates http://nmsupremecourt.nmcourts.gov.

Clerk’s Certificate Of Name And

Address Change

As of February 24, 2014:Debra Lautenschlager f/k/a Debra A. Hutchins Office of the Public Defender211 N. CanalCarlsbad, NM 88220575-887-5573575-887-6874 (fax)[email protected]

Effective March 5, 2014:Jack A. Smith2613 Cutler Avenue NEAlbuquerque, NM 87106-2511

Effective February 28, 2014:Rita Sandoval11805 Gallant Fox Road SEAlbuquerque, NM 87123-2595

Clerk’s Certificate of Admission

On March 12, 2014:David Z. Ring5901 Wyoming Blvd. NE, Suite J-300Albuquerque, NM [email protected]




Joey D. Moya, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

Recent Rule-Making ActivityAs Updated by the Clerk of the New Mexico Supreme Court

Effective April 9, 2014

Pending Proposed Rule Changes Open for Comment:

Comment Deadline

Please see the special summary of proposed rule amendments published in the April 2 issue of the Bar Bulletin (Vol. 53, No. 14, page 16). The actual text of the proposed rule amendments can be viewed on the Supreme Court’s website at the address noted below. The comment deadline for those proposed rule amendments is April 30, 2014.

Recently Approved Rule Changes Since Release of 2013 NMRA:

Effective Date

None - Please note that all rule amendments Approved on November 1, 2013, and effective December 31, 2013, now appear in the hard copy version of the New Mexico Rules Annotated and can also be found on the New Mexico Compilation Commission’s website.

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.


http://www.nmcompcomm.us


Advance Opinions http://www.nmcompcomm.us/

From the New Mexico Supreme Court and Court of Appeals

From the New Mexico Supreme Court

Opinion Number: 2014-NMSC-006

Topic Index:Administrative Law and Procedure: Administrative Appeal;

Arbitrary and Capricious Actions; Due Process; Hearings; Judicial Review; Notice; and Standard of ReviewAppeal and Error: Certification; and Standard of Review

Civil Procedure: StandingConstitutional Law: Due Process; and Establishment of Religion

Miscellaneous Statutes: Cultural and Properties ActProperty: Land Grants; and Mineral ResourcesStatutes: Interpretation; and Legislative Intent

RAYELLEN RESOURCES, INC., DESTINY CAPITAL, INC., LYNNE E. ELKINS, PAULA D. ELKINS, JOY BURNS, CEBOLLETA LAND GRANT, FERNANDEZ COMPANY LTD., JUDITH WILLIAMS PHIFER,

individually and as Personal Representative of the Estate of JAMES H. WILLIAMS, ORIN CURTIS CLEVE WILLIAMS, RIO GRANDE RESOURCES CORPORATION, STRATHMORE RESOURCES (U.S.) LTD., LARAMIDE RESOURCES (U.S.A.) LTD.,

ROCA HONDA RESOURCES, LLC,Plaintiffs-Appellees,

andHON. PATRICK H. LYONS, Commissioner of Public Lands for the State of New Mexico,

Plaintiff,v.

NEW MEXICO CULTURAL PROPERTIES REVIEW COMMITTEE and ALAN “MAC” WATSON, individually and as Chairman of the New Mexico Cultural Properties Review Committee,

Defendants-Appellants,and

PUEBLO OF ACOMA and PUEBLO OF LAGUNA, federally recognized Indian Tribes, Intervenors

No. 33,497 (filed February 6, 2014)

CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALSWILLIAM G. W. SHOOBRIDGE, District Judge

JOHN BENNETT POUNDLONG, POUND & KOMER, P.A.

Santa Fe, New Mexicofor Appellants

FRANK M. BONDKELCEY C. NICHOLS

THE SIMONS FIRM, L.L.P.Santa Fe, New Mexico

for Appellees Rayellen Resources, Inc. and Destiny Capital, Inc.

MICHAEL J. MOFFETTJON J. INDALL

COMEAU, MALDEGEN, TEMPLEMAN & INDALL, L.L.P.

Santa Fe, New Mexicofor Appellees Lynne E. Elkins, Paula D.

Elkins, Joy Burns, Strathmore Resources (U.S.) Ltd., Laramide

Resources (U.S.A.) Ltd., and Roca Honda Resources, LLC.

BRETT JUSTIN OLSENOLSEN, PARDEN & CROW, P.C.

Albuquerque, New Mexico

SARAH L. MAESTAS BARNESALBUQUERQUE BUSINESS LAW, P.C.

Albuquerque, New Mexicofor Appellee Cebolleta Land Grant

STEPHEN DEAN INGRAMCAVIN & INGRAM, P.A.

Albuquerque, New Mexicofor Appellee Fernandez Company Ltd.

continued on next page

http://www.nmcompcomm.us/


http://www.nmcompcomm.us/Advance Opinions

continued from previous page

STUART R. BUTZIERMARTE D. LIGHTSTONE

MODRALL, SPERLING, ROEHL, HARRIS & SISK, P.A.

Albuquerque, New Mexicofor Appellees Judith Williams Phifer

and Orin Curtis Cleve Williams

LARRY P. AUSHERMANSTANLEY N. HARRIS

MODRALL, SPERLING, ROEHL, HARRIS & SISK, P.A.

Albuquerque, New Mexicofor Appellee Rio Grande Resources

Corporation

ANN BERKLEY RODGERSPETER C. CHESTNUT

CHESTNUT LAW OFFICESAlbuquerque, New Mexico

for Intervenor Pueblo of Acoma

JUNE LYNNE LORENZOPaguate, New Mexico

for Intervenor Pueblo of Laguna

RICHARD WARREN HUGHESROTHSTEIN, DONATELLI, HUGHES,

DAHLSTROM, SCHOENBURG & BIENVENU L.L.P.

Santa Fe, New Mexicofor Amici Curiae All Indian Pueblo

Council, American Anthropological Association, Association on American

Indian Affairs, National Trust for Historic Preservation, Sierra Club,

Society for American Archaeology, Pueblo of Tesuque, and Thomas

Merlan

ANDREW J. CLOUTIERHINKLE, HENSLEY, SHANOR &

MARTIN, L.L.P.Roswell, New Mexico

RONALD D. HILLMANARMSTRONG ENERGY CORPORATION

Roswell, New Mexico

JENNIFER M. HEIMPITTMAN LAW FIRM, P.C.

Roswell, New Mexicofor Amici Curiae New Mexico Cattle

Growers Association and New Mexico Farm & Livestock Bureau

MICHAEL W. BRENNANBRENNAN & SULLIVAN, P.A.

Santa Fe, New Mexicofor Amici Curiae New Mexico Mining Association and New Mexico Oil and

Gas Association

CHARLES THOMAS DUMARSLAW & RESOURCES PLANNING

ASSOCIATES, P.C.Albuquerque, New Mexico

STEPHEN CURTICEYOUTZ & VALDEZ, P.C.

Albuquerque, New Mexicofor Amicus Curiae New Mexico Land

Grant Council

ELIZABETH S. MERRITTWILLIAM J. COOKWashington, DC

for Amicus Curiae National Trust for Historic Preservation

Opinion

Charles W. Daniels, JusticeI. INTRODUCTION1 We accepted certification from the Court of Appeals to review the decision of the New Mexico Cultural Properties Review Committee to recognize approximately 400,000 acres of public land on Mount Tay-lor as a registered cultural property under the New Mexico Cultural Properties Act. We affirm in part the Committee’s decision and hold that the Mount Taylor listing was lawful under the Cultural Properties Act and that the proceedings before the Com-mittee did not violate the constitutional guarantee of due process of law. We reverse the Committee’s inclusion of 19,000 acres of Cebolleta Land Grant property and hold that land grant property is not state land as defined in the Cultural Properties Act.II. BACKGROUNDA. Factual History and

Administrative Proceedings2 In February 2008, the United States Forest Service released a report deter-

mining that Mount Taylor was eligible for listing on the National Register of Historic Places as a traditional cultural property. The detailed report, written by two archaeologists who spent months working with several of the mountain’s sur-rounding tribal communities, documents the cultural and ethnographic history of Mount Taylor, which, at more than 11,000 feet, is the highest point in the San Mateo Mountains of New Mexico. The report chronicles the history of the mountain and its importance to various cultures, noting prehistoric archaeological sites predating 500 A.D. and rock inscriptions from Span-ish settlers who may have passed through the area as early as 1540 with the historic Francisco Vasquez de Coronado expedi-tion.3 The report concludes that Mount Taylor satisfies three out of four possible criteria for National Register listing based on the mountain’s “significant contribu-tions to the broad patterns of our history,” its association with “persons significant in our past,” and its past and potential future

yield of information about our history. See 36 C.F.R. § 60.4 (2008) (providing the four “National Register criteria,” each of which qualifies a site for National Register listing). The report also concludes that Mount Taylor meets the overall “integrity” criterion for National Register listing be-cause the property was, and still is, inte-gral to the tribal communities’ practices, from traditional gathering of plants and minerals to performing pilgrimages and ceremonies, noting that the mountain’s physical features that historically have attracted various cultures still exist today. See 36 C.F.R. § 60.4 (requiring “integrity of location, design, setting, materials, work-manship, feeling, and association” as the “quality of significance” for each candidate property); accord Nat’l Register Bulletin 38 at 11-12 (rev. 1998), http://www.nps.gov/nr/publications/bulletins/pdfs/nrb38.pdf.4 Ten days after the report’s release, the Pueblos of Acoma, Laguna, and Zuni, the Hopi Tribe, and the Navajo Nation (collectively, the Nominating Tribes) submitted an emergency application to the


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http://www.nmcompcomm.us/Advance OpinionsNew Mexico Cultural Properties Review Committee, requesting that Mount Taylor be temporarily registered as a cultural property under Section 12 of the New Mexico Cultural Properties Act, NMSA 1978, §§ 18-6-1 to -17 (1969, as amended through 2013), our state’s counterpart of the National Historic Preservation Act.5 Under the Cultural Properties Act, the Committee is allowed to approve an emergency listing “for not more than one year, during which time the [C]ommittee shall investigate the property and make a determination as to whether it may be permanently placed on the official regis-ter” of New Mexico cultural properties. Section 18-6-12. Once a property is listed, other state departments must consult the New Mexico historic preservation officer before taking any action “which may af-fect a registered cultural property . . . so as to preserve and protect, and to avoid or minimize adverse effects on, registered cultural properties.” Section 18-6-8.1. A consultation requirement also comes into effect when a property is deemed eligible for National Register listing, as in the Mount Taylor case in 2008 upon the re-lease of the Forest Service report. See, e.g., 19.10.6.602(D)(13)(i) NMAC (requiring permits for new mining operations to in-dicate all sites included in the permit area that are “on or eligible for listing on either the National Register of Historic Places and/or the State Register of Cultural Prop-erties”); but see 19.10.3.302(D)(2) NMAC (requiring permits for “minimal impact” mining operations to indicate locations of only those cultural resources actually listed on either the national or state registers).6 On February 22, 2008, eight days af-ter the Nominating Tribes submitted the emergency application, the Committee approved a one-year temporary listing. Although the Nominating Tribes included the Forest Service report as supporting documentation for the emergency appli-cation, the state nomination was slightly different from the Forest Service Report. The Forest Service relied on topography, delineating boundaries of the traditional cultural property based on the mountain’s summit and its surrounding mesas, but the Nominating Tribes focused on elevation, drawing a demarcation line around the summit at 8,000 feet because, according to the Nominating Tribes, private landown-ers became more numerous below this elevation. The Nominating Tribes asked the Committee to recognize 422,840 acres consisting of federal land managed by the

Forest Service and the Bureau of Land Management, Indian trust and Pueblo land, New Mexico state lands, and the Cebolleta Land Grant common lands. The Nominating Tribes asked that any private land above 8,000 feet be identified and ex-cluded from the listing. On June 14, 2008, following a public comment period, the Committee again approved the emergency listing of the specified property at the top of Mount Taylor.7 On April 22, 2009, fourteen months after submitting their emergency petition, the Nominating Tribes nominated the same land on Mount Taylor for permanent listing under the Cultural Properties Act. In response, the Committee scheduled a public comment period that included a public hearing on May 15, 2009, the submission of written comments through May 20, 2009, and a final vote on June 5, 2009. As with the emergency petition, private land was explicitly excluded from the proposed listing as noncontributing, but the Nominating Tribes changed the listing’s outer boundaries to be consistent with the topographic boundary used by the Forest Service after agreeing that it better reflected the individual tribes’ shared use of the mountain.8 At the close of the May 15, 2009, hear-ing, the Committee asked the Nominating Tribes to revise the nomination and resub-mit it by May 23, 2009, in order to include a gross acreage figure for both contributing and noncontributing properties, among other clarifications. The Committee asked private land owners to verify private prop-erty exclusions by submitting notarized copies of their property deeds to the His-toric Preservation Department. On June 4, 2009, the Committee released an updated estimate on the proposed permanent list-ing, explaining that 434,767 acres of public land would be included and 89,939 acres of private land would be excluded as noncon-tributing. On June 5, 2009, the Committee voted unanimously to permanently list Mount Taylor as a cultural property on the state historic register, issuing a final order on September 14, 2009.B. Judicial Proceedings9 One month after the Committee issued its final order, Rayellen Resources, Inc., and numerous other parties including the Cebolleta Land Grant (the Rayellen par-ties) appealed the order to the Fifth Judicial District Court under Rule 1-075 NMRA, which provides for district court review of a final agency decision. The Pueblo of Acoma, which joined the Committee in de-

fending the listing, challenged whether the Rayellen parties who are private landown-ers had standing to appeal because they were explicitly excluded from the listing, an argument the district court rejected.10 In reaching the merits of the case in its February 2011 decision and order, the district court found that the listing did not violate constitutional protections against the establishment of religion and that the Committee did not violate due process guarantees by following federal guidelines for the listing. The district court reversed the listing nevertheless on the grounds that personal notice of the permanent listing’s public comment period was not provided to all affected property owners, includ-ing mineral rights holders, in violation of due process guarantees, and that both the mountain’s sheer size and the private property exclusions made it impracticable to comply with provisions in the Cultural Properties Act relating to integrity of place, required inspections, and required mainte-nance. The district court also reversed the inclusion of the 19,000 acres of Cebolleta Land Grant common lands in the listing because land grant common lands are not subject to regulation as state land under the Cultural Properties Act.11 Acoma Pueblo petitioned for cer-tiorari in the Court of Appeals on the three listing issues which the district court reversed, and the Rayellen parties cross-petitioned on other issues as to which they had not prevailed in the district court. The Court of Appeals granted those petitions as well as motions to intervene from Laguna Pueblo and the Committee. Without deciding any of the issues, the Court of Appeals then certified the entire case to this Court as presenting “an issue of substantial public interest that should be determined by the supreme court.” NMSA 1978, § 34-5-14(C)(2) (1972).III. DISCUSSION12 Preliminarily, we note that the parties have not challenged the constitu-tional powers of the Legislature either to enact any of the provisions of the Cultural Properties Act or to delegate to the Com-mittee the administrative responsibility of determining which properties should be designated as deserving of the protections embodied in the Act. The challenges in this case relate more specifically to whether the Committee exercised its authority in a lawful manner.A. Standing13 The parties who sued to block the listing of Mount Taylor as a cultural



http://www.nmcompcomm.us/Advance Opinionsproperty represent a variety of arguably different interests, including interests in surface properties excluded from the list-ing, mineral interests only, and interests in Cebolleta surface property specifically included in the designation. Various chal-lenges have been directed at the standing of most of the parties. See ACLU of N.M. v. City of Albuquerque, 2008-NMSC-045, ¶ 19, 144 N.M. 471, 188 P.3d 1222 (holding that to establish standing a party bringing suit must “show that he is injured or threat-ened with injury in a direct and concrete way”).14 Because the parties generally con-cede that Cebolleta does have standing to raise the same substantive issues raised by other interests, and because, like the Court of Appeals in certifying this appeal to us, we view this unusual application of the New Mexico Cultural Properties Act as a matter of substantial public importance, we will not engage in the non-outcome-determinative exercise of identifying which of the numerous individual chal-lengers did and did not have standing to raise issues that we should address in any event. Regardless of whether traditional standing requirements have been met, in appropriate cases “this Court has exercised its discretion to confer standing and reach the merits . . . due to the public importance of the issues involved.” Id. ¶ 9. We deter-mine that this is such a case.B. Standard of Review15 The standards for our appellate review of the Committee’s administrative decision are well settled in New Mexico law. “[W]e apply the same administrative standard of review as the district court sit-ting in its appellate capacity.” Sais v. N.M. Dep’t of Corrs., 2012-NMSC-009, ¶ 15, 275 P.3d 104 (alteration in original) (internal quotation marks and citation omitted). In doing so, we must determine if the Com-mittee’s decision was “arbitrary, capricious, or an abuse of discretion; not supported by substantial evidence in the record; or, otherwise not in accordance with law.” Id. (internal quotation marks and citation omitted); accord Rule 1-075(R) NMRA.16 “A ruling by an administrative agency is arbitrary and capricious if it is unreasonable or without a rational basis, when viewed in light of the whole record.” Rio Grande Chapter of Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806. “In making these determinations, we must remain mindful that in resolving ambiguities in the statute or regulations which an agency is charged

with administering, the Court generally will defer to the agency’s interpretation if it implicates agency expertise.” Id. (internal quotation marks and citation omitted). “It is not the function of the trial court to retry the case . . . or substitute its judgment for that of [an administrative agency].” Id. (alteration in original) (internal quotation marks and citation omitted). “However, we will not defer to the [agency’s] or the district court’s statutory interpretation, as this is a matter of law that we review de novo.” Id. (alteration in original) (internal quotation marks and citation omitted).C. The Committee Provided Sufficient

Notice of the Public Comment Period for Its Review of the Permanent Mount Taylor Nomination

17 The Rayellen parties argue that the Mount Taylor permanent listing violates due process because the Committee failed to provide personal notice to all affected property owners, including all mineral rights holders, before depriving them of a property right, relying on Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), and Uhden v. New Mexico Oil Conservation Commission, 1991-NMSC-089, ¶¶ 9-10, 112 N.M. 528, 817 P.2d 721. Specifically, the Rayellen parties argue that some in the Williams group who hold subsurface mineral rights to property in or near the listing did not receive personal notice of the Committee’s hearings and that notice by publication was insufficient—a conclusion reached by the district court. For the reasons that follow, we disagree.18 Article II, Section 18 of the New Mexico Constitution provides, “No person shall be deprived of life, liberty or prop-erty without due process of law . . . .”). See also U.S. Const. amend. XIV (stating that no state shall “deprive any person of life, liberty, or property, without due process of law”). We review de novo whether due process has been denied, a question of law, and apply substantial-evidence review to the findings of fact. Bd. of Educ. of Carlsbad Mun. Schs. v. Harrell, 1994-NMSC-096, ¶ 52, 118 N.M. 470, 882 P.2d 511. “Substan-tial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Jones v. N.M. State Racing Comm’n, 1983-NMSC-089, ¶ 20, 100 N.M. 434, 671 P.2d 1145.19 Procedural due process requires no-tice and the opportunity to be heard before a deprivation by the state can occur. See Maso v. State Taxation & Revenue Dep’t,

Motor Vehicle Div., 2004-NMSC-028, ¶ 10, 136 N.M. 161, 96 P.3d 286 (“Due process requires notice and an opportunity for a hearing before the State can suspend or revoke a person’s driver’s license.”). “Due process does not require the same form of notice in all contexts; instead, the notice should be ‘appropriate to the nature of the case.’” Id. (quoting Mullane, 339 U.S. at 313); see also Mullane, 339 U.S. at 314 (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportu-nity to present their objections.”).20 Nothing in Mullane or its progeny establishes that personal notice is required in all cases. Rather, this Court has made clear that the opposite is true: “[I]t is well settled that the fundamental requirements of due process in an administrative context are reasonable notice and opportunity to be heard and present any claim or defense.” TW Telecom of N.M., L.L.C. v. N.M. Pub. Regulation Comm’n, 2011-NMSC-029, ¶ 17, 150 N.M. 12, 256 P.3d 24 (emphasis omitted) (internal quotation marks and citation omitted). Our inquiry here must be whether the notice provided by the Committee was reasonably calculated un-der the circumstances to inform interested parties of its action in order to afford them the opportunity to be heard.21 None of the parties dispute that the Committee made extensive efforts to provide notice about the public comment period before voting on Mount Taylor’s permanent listing. This effort included general notice by publication in both The Gallup Independent and The Cibola County Beacon by sending press releases to various print and broadcast media and by making the proposed nomination available on the New Mexico Historic Preservation Divi-sion website, www.nmhistoricpreservation.org. The Committee also provided exten-sive personal notice, sending hundreds of letters along with the meeting agenda to those in its database of property owners, citizens, business owners, and elected officials who had expressed an interest in Mount Taylor’s nomination since the emergency listing hearings in 2008.22 Part of this database was the re-sult of the Nominating Tribes’ hiring of research consultants to locate private property owners via tax records in order to provide them with personal notice. Because the Cultural Properties Act does


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http://www.nmcompcomm.us/Advance Opinionsnot provide notice requirements, the Nominating Tribes relied on the language of the National Historic Preservation Act to discern what notice may be required for the Mount Taylor nomination. See § 18-6-2 (stating that the Cultural Proper-ties Act operates “in a manner conforming with, but not limited by, the provisions of the National Historic Preservation Act”). Under the 1966 National Historic Preservation Act, a state is directed by regulations amended in 1983 to create a list of property owners “obtained from either official land recordation records or tax records, whichever is more appropri-ate,” for notice purposes when private property is being considered for listing. See 36 C.F.R. § 60.6(c) (2012); but see 36 C.F.R. § 60.6(d) (requiring written notice to local elected officials and only general notice by publication to property owners when a proposed listing involves more than fifty properties). Even though the Mount Taylor nomination explicitly ex-cludes private land, the Nominating Tribes searched tax records in three counties and ultimately identified more than one hundred landowners within the listing in order to provide them with personal notice.23 We conclude that these efforts by the Committee complied with Mullane in providing notice reasonably calculated to inform interested parties of the Mount Taylor permanent nomination. See Nat’l Council on Comp. Ins. v. N.M. State Corp. Comm’n, 1988-NMSC-036, ¶¶ 14, 21, 107 N.M. 278, 756 P.2d 558 (rejecting a due process challenge to an agency action because the notice reasonably informed objectors of the hearing so as to allow them the opportunity to be heard).24 Despite these efforts, the Rayellen parties argue that notice was inadequate because the Nominating Tribes relied on county tax records when they should have relied on county land records, because “tax records are useful only for determining who pays property taxes.”1 Under the Rayellen parties’ argument, if the Committee had performed proper due diligence, it would have discovered the Williams mineral ownership and then provided personal notice to those Williams parties, as the Rayellen parties argue would be required by Uhden, 1991-NMSC-089, ¶ 12 (“[W]hen the names and

addresses of affected parties are known, or are easily ascertainable by the exercise of diligence, notice by publication does not satisfy constitutional due process require-ments.”).25 In Uhden, this Court held that due process was violated when the New Mexico Oil Conservation Commission failed to provide personal notice to a mineral rights owner before hearing an application by Amoco Production Company to increase the spacing for one of its oil and gas wells. See id. ¶¶ 4, 6, 13. Although the statute gov-erning the proceeding allowed either per-sonal notice or notice by publication, see id. ¶ 4, Uhden held that notice by publica-tion was inadequate because the Commis-sion’s hearing of Amoco’s well application was not a rule-making proceeding but, in effect, an adjudication of the mineral rights owner’s property right, see id. ¶ 7, based on three considerations. First, Amoco needed to support the change in the well spacing by substantial evidence, which it did by presenting witnesses and evidence about the specific well area. See id. Second, the Commission’s ruling to change the well spacing reduced the owner’s mineral rights royalties by half. Id. ¶¶ 5, 8. And third, Amoco was aware of the mineral rights owner’s identity and whereabouts because for several years the company had been sending the owner royalty payments based on the well’s production. See id. ¶¶ 3-4, 13. The Uhden Court concluded in a narrow holding:

On these facts, . . . if a party’s identity and whereabouts are known or could be ascertained through due diligence, the due process clause of the New Mexico and United States Constitutions requires the party who filed a spacing application to provide notice of the pending proceeding by personal service to such par-ties whose property rights may be affected as a result.

Id. ¶ 13.26 The facts of the Mount Taylor listing are wholly different from those in Uhden. While we agree with the Rayellen parties that they, like the mineral rights owner in Uhden, undoubtedly possess private prop-erty rights in both their land and mineral interests, see, e.g., id. ¶ 8 (“Mineral royalty retained or reserved in a conveyance of

land is itself real property.” (internal quo-tation marks and citation omitted)), the nature of these rights is not at issue.27 Unlike in Uhden, the Committee’s review of the Mount Taylor listing was not an adjudication of the Rayellen parties’ private property rights. The Committee instead was reviewing the nomination to determine whether Mount Taylor should be recognized as a state cultural property in order to better protect its historical significance. The Committee’s action is a regulatory one more akin to general rule-making than adjudication, one un-dertaken to effectuate the Committee’s statutory powers to identify and preserve our state’s cultural and historic heritage. See Timberon Water Co., Inc. v. N.M. Pub. Serv. Comm’n, 1992-NMSC-047, ¶ 23, 114 N.M. 154, 836 P.2d 73 (distinguishing an administrative action as regulatory when it furthers the public interest under the state’s police powers and adjudicatory when it is based on adjudicating a private right rather than implementing public policy); see also NMSA 1978, § 10-15-1(H)(3) (1999, amended 2013) (defining an “adminis-trative adjudicatory proceeding” under the Open Meetings Act as “a proceeding brought by or against a person before a public body in which individual legal rights, duties or privileges are required by law to be determined by the public body after an opportunity for a trial-type hearing”). Because no individual prop-erty rights were being adjudicated by the Mount Taylor listing, personal notice was not required. If this Court were to require personal notice to every affected party before an agency undertakes rule-making such as this, the notice requirement would be so unduly burdensome and impractical as to be insurmountable, in contrast to the reasonableness standard set forth in Mul-lane. See also Maso, 2004-NMSC-028, ¶ 10 (explaining that notice is to be “reasonably calculated to be effective without impos-ing unrealistically heavy burdens on the party charged with the duty of notification” (internal quotation marks and citation omitted)).28 Procedural due process is ultimately about fairness, ensuring that the public is notified about a proposed government action and afforded the opportunity to make its voice heard before that action takes effect. See Uhden, 1991-NMSC-089,

1 We note that neither county tax records, which identify payers of county property taxes who may or may not be the property owners, nor county land records, which identify only those owners of county property to whom conveyance of their titles is recorded with the county clerk, necessarily include a complete record of property ownership in a county.



http://www.nmcompcomm.us/Advance Opinions¶ 10 (explaining that administrative pro-ceedings must conform to the due process requirements of fairness and reasonable-ness). In this case, the Committee made extensive efforts to apprise the public about the Mount Taylor nomination by general publication and by going so far as to extend personal notice to hundreds of interested parties, including those private property owners it was able to identify within and around the proposed listing area. As the Rayellen parties acknowledge, the Committee succeeded in its goal to apprise the public based on the fact that every party to this appeal save one received actual notice.29 Accordingly, we reverse the district court and hold that the Committee provid-ed sufficient notice of the public comment period to satisfy due process guarantees.D. The Listing Satisfies Statutory

Requirements on Maintenance, Inspection, and Integrity

30 The district court agreed with the Rayellen parties’ arguments that under the statutory language of the Cultural Proper-ties Act, Mount Taylor is simply too large to be reasonably inspected and maintained and that “such a massive . . . area, whose acreage has yet to be correctly and finally defined . . . can not ‘possess integrity of location[]’ as set out as . . . criteria under federal guidelines followed by the [Com-mittee].”31 The Cultural Properties Act directs the Committee “to take such actions as are reasonable and consistent with law to iden-tify cultural properties and to advise on the protection and preservation of those prop-erties.” Section 18-6-5. One of the enumer-ated duties of the Committee in achieving this directive is to “inspect all registered cultural properties periodically to assure proper cultural or historical integrity and proper maintenance,” § 18-6-5(D), and, “based upon the inspection of a regis-tered cultural property, recommend such repairs, maintenance and other measures as should be taken to maintain registered status,” § 18-6-5(E). Nothing in this statu-tory language sets a limit as to how large a listed property can be. Although this appears to be the first New Mexico listing of a large geographical area, other sizeable

historic sites have been nominated, listed, or declared eligible for National Register listing, such as the San Francisco Peaks in Arizona, see Nat’l Register Bulletin 38 at 6; Tahquitz Canyon in California, see id. at 13, 17; and Kaho’olawe Island in Hawaii, see id. at 14, 17.2 We see no reason, either in the text of the Act or in logic, why our state authorities are prohibited from listing a property simply because it is large.32 Nor does our review of the record indicate that the Mount Taylor listing, al-beit large, is somehow incapable of inspec-tion and maintenance. To the contrary, the Committee argues that eighty percent of the Mount Taylor listing is owned by federal agencies and the State Land Office, both of which have inspection programs that can fulfill the Act’s inspection man-date. Although the Rayellen parties coun-ter that the Committee never made any findings on the feasibility of inspecting or maintaining prior to the Mount Taylor list-ing, the Act does not make such findings a prelisting requirement. How the Commit-tee intends to inspect and maintain Mount Taylor is a statutory consideration that follows rather than precedes the listing. See § 18-6-5(E) (“[B]ased upon the in-spection of a registered cultural property, [the Committee shall] recommend such repairs, maintenance and other measures as should be taken to maintain registered status.” (emphasis added)).33 With regard to the Rayellen parties’ argument that the listing lacks “integrity of location” because of the checkerboard nature of noncontributing private land, 4.10.4.7(C) NMAC defines “integrity” as “the quality or characteristics which make the property eligible for listing in the [N]ew [M]exico register of cultural properties.” Accord § 18-6-5(F) (requiring the Com-mittee to issue regulations “pertaining to the identification, preservation and main-tenance of registered cultural properties in order to maintain the integrity of those properties”).34 In connection with the federal list-ing, the Forest Service explained in its 2008 report that Mount Taylor met the federal integrity requirement in three respects—location, setting, and association—based primarily on the site’s ongoing relation-

ship with traditional cultural practices and because the physical attributes of the mountain remain largely unchanged. The Nominating Tribes’ May 22, 2009, ap-plication for permanent listing of Mount Taylor in the New Mexico State Register of Cultural Properties supported the federal determination of an ongoing relationship, explaining that land-altering activities on the mountain and the exclusion of private property may “cause the Nominat-ing Tribes to adjust some practices, such as the route that community members might follow while on pilgrimage . . . , [but] the scope of change . . . is rather minor. . . . These . . . modifications do not compromise cultural norms or needs.” Property Number 1939 Application for Registration, New Mexico State Register of Cultural Properties, Section 12 at 110. We conclude that substantial evidence supports the Committee’s finding on integrity.35 Accordingly, we reverse the district court and hold that the Mount Taylor list-ing conforms to statutory requirements on inspection, maintenance, and integrity.E. Cebolleta Land Grant Common

Lands Are Not State Land for Purposes of the Cultural Properties Act

36 Cebolleta Land Grant urges this Court to affirm the district court’s conclu-sion that its common lands are not state land for purposes of the Mount Taylor listing. Acoma Pueblo urges reversal, ar-guing that the common lands should be considered state land because the Land Grants Act was specifically amended in 2004 to recognize community land grants as political subdivisions of the state, which, under the separately enacted Cultural Properties Act, is one of the statutorily recognized categories of state land. The Committee takes no position on the issue, explaining that statutory interpretation is best addressed by this Court and that excluding the lands will not undermine the listing. For the reasons that follow, we agree with Cebolleta Land Grant that its common lands are not state land for purposes of the Mount Taylor listing.37 At issue is similar language in the two statutes. The Land Grants Act provides,

2 See, e.g., An Introduction to the Land-Use History of the Colorado Plateau: San Francisco Peaks, Arizona 2 (John D. Grahame & Thomas D. Sisk eds., 2002), http://www.cpluhna.nau.edu/Places/san_francisco_peaks2.htm (reciting that the Forest Service has requested designation of the San Francisco Peaks in Arizona as a Traditional Cultural Property and has recommended a 74,000-acre mineral withdrawal around the Peaks); Agua Caliente Band of Cahuilla Indians, http://www.planetpalmsprings.com/sovereign-nation/agua-caliente-cahuilla-indians.html (describing the listed the Tahquitz Canyon area); Newsletter of the Kaho’olawe Island Reserve Com-mission (2004) 2, http://kahoolawe.hawaii.gov/newsletters/newsletter_sum04.pdf (confirming 29,000 acres for Kaho’olawe Island).


http://www.cpluhna.nau.edu/Places/san_francisco_peaks2.htm

http://www.planetpalmsprings.com/sovereign-nation/

http://kahoolawe.hawaii.gov/newsletters/newsletter_sum04.pdf


http://www.nmcompcomm.us/Advance OpinionsAll land grants-mercedes in the state or land grants-mercedes de-scribed in Section 49-1-2 NMSA 1978 shall be managed, controlled and governed by their bylaws, by the Treaty of Guadalupe Hidalgo and as provided in Sections 49-1-1 through 49-1-18 NMSA 1978 as political subdivisions of the state.

NMSA 1978, § 49-1-1 (2004) (emphasis added). Similarly, the Cultural Proper-ties Act defines “state land” as “property owned, controlled or operated by a de-partment, agency, institution or political subdivision of the state.” Section 18-6-3(E) (emphasis added). Statutory construction is a question of law that this Court reviews de novo. See Bishop v. Evangelical Good Samaritan Soc., 2009-NMSC-036, ¶ 8, 146 N.M. 473, 212 P.3d 361.38 “The first step in any statutory construction is to try to determine and give effect to the Legislature’s intent.” State v. Nick R., 2009-NMSC-050, ¶ 16, 147 N.M. 182, 218 P.3d 868 (internal quota-tion marks and citation omitted). Despite Acoma Pueblo’s argument that statutory use of the term “political subdivision” in both the Land Grants Act and the Cultural Properties Act requires a conclusion that the Legislature intended that common lands be considered state land for purposes of a cultural or historic properties listing, the history of community land grants and the purpose of the Land Grants Act leads us to the opposite conclusion. See State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022 (directing a court to examine the history and background of a statute when “a formalistic and mechani-cal statutory construction” leads to results that are absurd, unreasonable, or contrary to statute’s spirit).39 Our courts have long recognized that the common lands of a community land grant are jointly held as private prop-erty by the heirs of the land grant. See Mon-dragon v. Tenorio, 554 F.2d 423, 424-25 (10th Cir. 1977) (addressing a federal civil rights claim under the New Mexico Land Grants Act and explaining that “[t]he com-mon lands are not open to the public; they are private property and may be leased. Only the heirs of the original claimants can use them for wood gathering and similar purposes without lease or consent of the trustees.”), recognized by Maestas v. Board of Trustees of Anton Chico Land Grant, 1985-NMSC-068, ¶¶ 8-9, 103 N.M. 77, 703 P.2d 174); see also U.S. General Account-ing Office, Treaty of Guadalupe Hidalgo:

Findings & Possible Options Regarding Longstanding Community Land Grant Claims in N.M., GAO-04-059, 17 (2004), http://www.gao.gov/assets/160/157550.pdf (explaining that community land grants differ from individual land grants because of the inclusion of common lands, which were held in perpetuity for the heirs of the community land grant and “could not be sold or otherwise alienated, while an individual grant could be transferred”). Based on the unique nature of the private property rights to these common lands, the New Mexico Territorial Legislature passed the Land Grants Act in 1907, specifying that community land grants create a board of trustees to manage their common lands. See NMSA 1915, § 801(I) (1907) (establishing a board of trustees for “[t]he management and control of all . . . land” in the land grant, with the power to “prescribe the terms and conditions under which the common lands . . . may be used and enjoyed”); see NMSA 1978, § 49-1-3(A) (2011) (same); accord Armijo v. Cebolleta Land Grant, 1987-NMSC-006, ¶ 6, 105 N.M. 324, 732 P.2d 426 (“[A]s a practical matter the Legislature has as-sumed the function of exercising control over [community land grants] through statutes providing for their administration by boards of trustees.” (second alteration in original) (internal quotation marks and citation omitted)); Bd. of Trs. of Town of Las Vegas v. Montano, 1971-NMSC-025, ¶ 16, 82 N.M. 340, 481 P.2d 702 (The “prin-cipal function [of the board of trustees] is to hold title to and manage the common lands of the grant.”).40 Instead of addressing the history and purpose of the Land Grants Act, Acoma Pueblo argues that the political subdivision language was added to the Land Grants Act in 2004 in order for land grants to become eligible for state funding without violating the New Mexico Constitution’s antidonation clause. See N.M. Const. art. IX, § 14 (“Neither the state nor any county, school district or municipality . . . shall directly or indirectly lend or pledge its credit or make any donation to or in aid of any person, association or public or private corporation . . . .”). Acoma supports its argument by relying on an advisory letter from the Attorney General’s office that interprets the 2004 amendment. See N.M. Atty. Gen. Advisory Letter to Hon. Bernadette M. Sanchez, N.M. State Senate, at 1 (Sep. 26, 2008) (explaining that the 2004 amendment to the Land Grants Act adding the language on political subdivi-

sions of the state “allowed land grants to organize and become eligible for state and federal funding.”). Under Acoma’s theory, if community land grants have been given political subdivision status for the benefit of receiving state money, then they should also bear the burdens of that status for purposes of historical protection under the Cultural Properties Act.41 Even if we were to assume that circumventing the antidonation clause was the purpose of the 2004 amendment, recognizing land grants as political sub-divisions for purposes of receiving state money does not transform these privately held common lands into state land solely because of the language shared between the Land Grants Act and the Cultural Properties Act. This Court has recognized that “property and property rights are held subject to the fair exercise of the police power and a reasonable regulation enacted for the benefit of public health, convenience, safety or general welfare is not unconstitutional ‘taking of property’ in violation of [constitutional protections].” N.M. Bd. of Exam’rs in Optometry v. Rob-erts, 1962-NMSC-053, ¶ 20, 70 N.M. 90, 370 P.2d 811. However, the Legislature gave no indication of any intention to attempt to transform privately held com-mon lands into public land by adding the political subdivision language to the Land Grants Act, even assuming it had any power to do so. A legislative taking would violate the privately held rights to these land grant properties that have existed since the land grant’s inception and have expressly been confirmed by our federal government under the Treaty of Guada-lupe Hidalgo. See Treaty of Peace, Friend-ship, Limits, & Settlement, U.S.-Mex., art. VIII, Feb. 2, 1848, 9 Stat. 922, T.S. 207 (“In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it, guaranties equally ample as if the same belonged to citizens of the United States.”). The Treaty’s property rights have been recognized in our Constitution, see N.M. Const. art. II, § 5 (“The rights, privileges and immunities, civil, political and religious guaranteed to the people of New Mexico by the Treaty of Guadalupe Hidalgo shall be preserved inviolate.”), and in our statutes, see § 49-1-1 (recognizing that the management, control, and gover-nance of community land grants includes


http://www.gao.gov/assets/160/157550


http://www.nmcompcomm.us/Advance Opinionsthose rights recognized by the Treaty of Guadalupe Hidalgo). We construe the two statutes in favor of an interpretation that complies with the international treaty, the New Mexico Constitution, and our long-standing jurisprudence recognizing the private property rights inherent in a com-munity land grant’s common lands. See Johnson v. N.M. Oil Conservation Comm’n, 1999-NMSC-021, ¶ 17, 127 N.M. 120, 978 P.2d 327 (“[I]f a statute is susceptible to two constructions, one supporting it and the other rendering it void, a court should adopt the construction which will uphold its constitutionality.” (internal quotation marks and citation omitted)).42 Our conclusion is further supported by the Legislature’s action in 2011 amend-ing the Land Grants Act after the Mount Taylor listing specifically to clarify that the 2004 amendment was not intended to change the ownership of these common lands:

The designation of land grants-mercedes as political subdivisions of the state shall not alter the property rights of the heirs in the common lands. The common lands owned or controlled by a land grant-merced shall not be considered to be, designated or treated as state land.

NMSA 1978, § 49-1-11.1(C) (2011).43 Accordingly, we affirm the district court’s holding that the Cebolleta Land Grant common lands are not state land for purposes of the Cultural Properties Act.F. The Remaining Issues Raised by

the Rayellen Parties in Their Cross-Appeal Are Without Merit

44 In their cross-appeal, the Rayellen parties challenge the Mount Taylor listing on grounds which the district court found nonmeritorious or on which the district court did not rule.45 First, the Rayellen parties argue that the Committee did not follow any fixed procedures or regulations in recognizing Mount Taylor for the state cultural prop-erty registry and therefore acted arbitrarily, relying on Smith v. Board of Commissioners of Bernalillo County, 2005-NMSC-012, ¶ 33, 137 N.M. 280, 110 P.3d 496 (disallow-ing “[a]d hoc, standard-less regulation”). Although the Rayellen parties correctly assert that the Committee has not pro-mulgated regulations on the conduct of listings, Section 18-6-2 of the Cultural Properties Act provides that the Com-mittee may list properties “in a manner conforming with, but not limited by, the

provisions of the National Historic Pres-ervation Act of 1966 (P.L. 89-665).” The district court rejected Rayellen’s argument, concluding that the Committee’s decision to follow the federal procedure for historic listings was both statutorily permissible and a sufficiently clear guideline to assure the Committee’s listing process was not arbitrary and capricious. We agree with the district court, noting that the Committee made it known throughout the Mount Taylor nomination process that it was fol-lowing the federal procedure as permitted by statute.46 Second, the Rayellen parties argue that even if the Committee could follow federal guidelines, it did not comply with those guidelines because the Mount Taylor listing was for religious purposes, and, under 36 C.F.R. Section 60.4, a property used for religious purposes can only be listed when it meets the additional burden of “deriving primary significance from . . . historical importance,” a finding the Committee never made. The Rayellen par-ties overlook a crucial point. In this case, the Committee made numerous findings relating to Mount Taylor’s eligibility for listing, including that the nomination satisfied three of the four possible federal criteria because Mount Taylor was associ-ated with significant contributions to our history and with persons significant in our past, and it offers a past and potential future yield of information about our his-tory. Although these findings undoubtedly include a religious component, because religion is part of culture and history, the findings are nonetheless based primarily on historical evidence. For example, the vast number of archaeological sites found on Mount Taylor demonstrates the moun-tain’s significance to various cultures from prehistory, sites that can shed light on the collective history of all New Mexicans. Consistent with the district court’s finding that the Committee applied the federal criteria in evaluating Mount Taylor’s cul-tural and historical significance, we hold that substantial evidence supports the Committee’s findings on Mount Taylor’s historic eligibility, making it unnecessary for the Committee to evaluate the listing under the additional requirements of 36 C.F.R. Section 60.4.47 Third, the Rayellen parties argue that the Mount Taylor listing is defective be-cause the property listed on the emergency petition is different from the property in the permanent petition, in violation of the plain language of Section 18-6-12.

48 Section 18-6-12 states that[a] cultural property which the [C]ommittee thinks may be worthy of preservation may be included on the official register on a temporary basis for not more than one year, during which time the [C]ommittee shall investigate the property and make a deter-mination as to whether it may be permanently placed on the official register.

49 While Section 18-6-12 refers to “a cultural property” in the singular, nothing in the plain language of the statute requires that the property remain unchanged from the emergency to the permanent designa-tion. Rather, the year between listings af-fords the Committee time to “investigate the property,” during which time the boundaries of a proposed site could jus-tifiably change, as occurred here. In this case, the Nominating Tribes explained the shift in the site’s outer boundaries from one based on elevation to one based on topography, and the Committee explained that the nomination was being revised as privately held lands were identified and excluded from the listing. For this Court to adopt the narrow interpretation advanced by the Rayellen parties would deny the Committee any discretion to investigate and fine-tune boundaries between an emergency and a permanent listing, ren-dering the investigation language a nullity and contradicting the overall intent of Section 18-6-12.50 Fourth, the Rayellen parties argue that the permanent listing violates due pro-cess because of several issues relating to the public comment period: (1) the Rayellen parties were not provided sufficient time to review the revised permanent nomina-tion, which was available to the public only twenty-three days before the May 15, 2009, hearing, (2) the Nominating Tribes’ permanent application was constantly changing as noncontributing properties were identified and excluded, (3) the Com-mittee imposed unfair restrictions on pub-lic comment at the May 15, 2009, hearing by limiting speakers to two minutes each while the Nominating Tribes were allowed seventy-five minutes to speak, and (4) the public was not allowed to comment on any revisions submitted after the May 20, 2009, deadline for written public comments be-fore the June 5, 2009, vote. Similar to the Rayellen parties’ due process challenge on personal notice, each of these challenges is premised on the Committee’s action



http://www.nmcompcomm.us/Advance Opinionsbeing an adjudication under Uhden, 1991-NMSC-089, ¶¶ 7, 10, for which increased due process protections apply.51 As we have already stated, “[d]ue process does not require the same form of notice in all contexts; instead, the notice should be ‘appropriate to the nature of the case.’” Maso, 2004-NMSC-028, ¶ 10 (citation omitted); see also Pamela A.G. v. Pamela R.D.G., 2006-NMSC-019, ¶ 12, 139 N.M. 459, 134 P.3d 746 (“The amount of process due depends on the particular circumstances of each case because pro-cedural due process is a flexible right.”). Because the Committee’s review of Mount Taylor for listing was rule-making and not adjudication, the due process standards discussed in Uhden did not apply. Rather, at issue here is whether the Committee provided a reasonable opportunity to be heard. See TW Telecom of N.M., 2011-NMSC-029, ¶ 17 (“[T]he fundamental requirements of due process in an ad-ministrative context are reasonable notice and opportunity to be heard and present any claim or defense.” (emphasis omitted) (internal quotation marks and citation omitted)).52 Although “[n]otice should be more than a mere gesture[,] it should be rea-sonably calculated, depending upon the practicalities and peculiarities of the case, to apprise interested parties of the pending action and afford them an opportunity to present their case.” Albuquerque Bernalillo Cnty. Water Util. Auth. v. N.M. Pub. Regu-lation Comm’n, 2010-NMSC-013, ¶ 21, 148 N.M. 21, 229 P.3d 494 (rejecting the claim that the New Mexico Public Regu-lation Commission violated due process by changing the focus of an emergency rate increase hearing after notice was provided). “General notice of the issues to be presented at a hearing is sufficient to comport with due process requirements.” Id.53 In this case, the Committee mailed notices and advertised the May 15, 2009, hearing more than a month prior to the hearing, providing sufficient public notice that Mount Taylor’s permanent listing was under consideration. Technical detail such as the precise total acreage of excluded property was unnecessary for the Com-mittee or the public in discussing whether Mount Taylor should be recognized as a cultural property.54 Similarly, the Committee gave the public sufficient opportunity to provide input by holding the May 15, 2009, hear-ing at which each member of the public

was permitted to speak personally for two minutes and by giving everyone a further opportunity to submit even more extensive comments in writing in the days follow-ing the oral presentations. As we noted in Cerrillos Gravel Products, Inc. v. Board of Commissioners of Santa Fe County, 2005-NMSC-023, ¶ 28, 138 N.M. 126, 117 P.3d 932, “[i]n administrative proceedings due process is flexible in nature and may adhere to such requisite procedural protec-tions as the particular situation demands.” (internal quotation marks and citation omitted). In Cerrillos Gravel, we suggested in dicta that a two-minute time limit on total input before an administrative body could possibly raise due process concerns. Id. ¶¶ 3, 28. Unlike the situation in Cerrillos Gravel, however, the Rayellen parties were permitted to supplement their oral presen-tations with written comments, and there is nothing in the record to suggest that they were unable to present all relevant input in one form or the other.55 Accordingly, we hold that the Com-mittee provided adequate due process in apprising interested parties of the pending action and affording them an opportunity to present their input.56 Fifth, the Rayellen parties argue an issue on which the district court did not rule: that the listing should be reversed because the Committee never voted on the permanent nomination in its final form. At the June 5, 2009, meeting, the State Historic Preservation Officer merely gave a summary presentation on the Mount Taylor listing, which the Committee then passed by a unanimous voice vote. The Committee followed with its written final order on September 14, 2009. The Rayel-len parties’ theory is that the Committee’s final order was a “post hoc rationaliza-tion” and that Committee members had to actually draft the final order prior to voting for it to be legally acceptable, rely-ing on 4.10.3.14(E) NMAC (“At a regular meeting, no member of the [C]ommittee may participate in a final decision in any matter before the [C]ommittee unless he has heard the evidence or has been present for the discussion prior to such decision. Further, such member must be present at said meeting for actual participation in the final decision . . . .” (emphasis as added by the Rayellen parties)).57 The plain language of 4.10.3.14(E) NMAC requires only that a Committee member hear the evidence or be present for the discussion prior to voting on a final decision. Nothing in the law requires the

Committee to draft a final order prior to voting on that form of order. Accordingly, the Rayellen parties’ argument that the final order fails to reflect the Committee’s vote is without merit.58 Sixth, the Rayellen parties make another argument on which the district court did not rule: that the Committee’s final order incorrectly indicates a total of 434,767 acres instead of 344,828 acres of contributing lands and that the listing is therefore arbitrary and capricious. There is nothing in the record to suggest that the Committee’s failure to exclude nearly 90,000 acres of noncontributing property from the computed total acreage of the listing was anything but a clerical error. Although there is no specific rule on cleri-cal mistakes for administrative agencies, our district court rules recognize that “[c]lerical mistakes in judgments, orders, or parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” Rule 1-060(A) NMRA; ac-cord State v. Hill,1918-NMSC-046, ¶ 2, 24 N.M. 344, 171 P. 790 (“Where the sense of an indictment is clear, nice or technical ex-ceptions are not to be favorably regarded; therefore verbal inaccuracies, or clerical errors which are explained and corrected by necessary intendment from other parts of the indictment, are not fatal.”). Because the computational error on the total acre-age is correctable and is neither fraudulent nor fatal to the overall intent of the order, we conclude that the Rayellen parties’ argument is without merit.59 Finally, the Rayellen parties argue that the listing violates constitutional protections against the establishment of religion based on Lemon v. Kurtzman, 403 U.S. 602 (1971), adopted by this Court in Pruey v. Dep’t of Alcoholic Beverage Control of N.M., 1986-NMSC-018, ¶ 12, 104 N.M. 10, 715 P.2d 458, because the purpose of the listing is primarily and impermissibly religious.60 Lemon establishes that a govern-ment action is not violative of the Estab-lishment Clause of the First Amendment to the United States Constitution if it passes a three-part test: “First, [the gov-ernment action] must have a secular leg-islative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the [government action] must not foster ‘an excessive government entanglement



http://www.nmcompcomm.us/Advance Opinionswith religion.’” Id. at 612-13 (citation omitted). Here, a whole record review shows that (1) ample evidence exists for listing Mount Taylor as a historical site, including the area’s documented archaeological and cultural significance, (2) the primary effect of the listing is to promote historic preservation, not to advance religion, and (3) the listing does not foster excessive government entanglement in religion; the listing merely requires interagency consultation on acts that may have an adverse effect on the historic site. Accordingly, we hold that the Mount Taylor listing does not violate the Establishment Clause under

Lemon, the same conclusion reached by the district court.IV. CONCLUSION61 We reverse the district court in part by holding that the decision of the New Mexico Cultural Properties Review Com-mittee to list Mount Taylor as a cultural property under the New Mexico Cultural Properties Act did not violate due process guarantees or statutory requirements on inspection, maintenance, and integrity. We affirm the district court in part in our holding that the Cebolleta Land Grant common lands are not state land for purposes of the Cultural Properties Act, in our rejection of claims that the listing

violates protections against the establish-ment of religion, and in our rejection of other arguments raised in the Rayellen parties’ cross-appeal. We remand the case to the district court with instructions to amend its judgment in conformity with this opinion.62 IT IS SO ORDERED. CHARLES W. DANIELS,

Justice

WE CONCUR:PETRA JIMENEZ MAES, Chief JusticeRICHARD C. BOSSON, JusticeEDWARD L. CHÁVEZ, JusticeBARBARA J. VIGIL, Justice




Certiorari Denied, January 28, 2014, No. 34,472


Opinion Number: 2014-NMCA-026

Topic Index:Appeal and Error: Standard of ReviewCivil Procedure: Summary Judgment

Employment Law: Independent ContractorNegligence: Breach of Duty; and Duty

Torts: Premises LiabilityWorkers’ Compensation: Independent Contractor

LARRY SHERMAN,Plaintiff-Appellant,

v.CIMAREX ENERGY CO., CIMAREX ENERGY CO. OF COLORADO and MAGNUM

HUNTER PRODUCTION INC.,Defendants-Appellees

Docket No. 32,164 (filed November 25, 2013)

APPEAL FROM THE DISTRICT COURT OF LEA COUNTYGARY L. CLINGMAN, District Judge

TIMOTHY J. ATLERKERRY KIERNAN

SUTIN, THAYER & BROWNE, P.C.Albuquerque, New Mexico

DENIS DENNISKELLY, MORGAN, DENNIS, CORZINE

& HANSEN, P.C.Odessa, Texas

ALLEN MOORELAW OFFICE OF ALLEN MOORE

Odessa, Texasfor Appellant

ROBERT J. MROZJENNIFER L. COLLINS

MADISON & MROZ, P.A.Albuquerque, New Mexico

for Appellees

Opinion

Cynthia A. Fry, Judge1 Plaintiff Larry Sherman appeals the district court’s order granting summary judgment in favor of Defendants, which we refer to collectively as Cimarex. Plaintiff was injured when he fell over the handrail of a flight of stairs while working on an oil drilling rig. Plaintiff, an employee of an independent contractor hired by Cimarex, sued Cimarex, the owner and operator of the well site. The district court determined that Cimarex owed no duty to Plaintiff to protect against the injury that occurred in this case. We conclude that there are

issues of fact as to whether Cimarex had supervisory control over the independent contractor’s operations so as to give rise to a duty to act reasonably in exercising that control. We further determine that there are issues of fact surrounding the questions of whether Cimarex’s actions breached any duty it owed Plaintiff and whether those actions caused Plaintiff ’s injuries. Accord-ingly, we reverse the district court.BACKGROUND2 Plaintiff worked as a toolpusher for Patterson-UTI Drilling Company. Ci-marex contracted with Patterson to drill a well and furnish labor, equipment, and services “under the direction, supervision

and control of [Cimarex].” As a toolpusher, Plaintiff was the head Patterson employee on the well site, while Thomas Glen Smith was Cimarex’s drilling consultant—the person assigned by Cimarex to supervise the overall operation of the project.3 Patterson required the toolpusher to be able to remain on location twenty-four hours a day for eight days. However, Plaintiff and another Patterson toolpusher, Tye Lem, had worked out an arrangement whereby the two men alternated a four-days-on-four-days-off work schedule. At the time of the accident, Plaintiff had worked twelve consecutive days because he covered for one of Lem’s shifts in the midst of working his own, although only five of these twelve days were spent working on the current well site and under Smith’s supervision1.4 In the early hours of August 8, 2006, Plaintiff was injured when he fell over a handrail while walking down the stairs from the rig’s doghouse. In the district court, the parties disputed what event triggered Plaintiff ’s movement from the doghouse to the stairs. On appeal, they seem to agree that Plaintiff was asleep in the doghouse and that Smith woke him up so that he could perform a task at the bottom of the rig. Plaintiff got up and left the doghouse, whereupon the accident occurred.5 Plaintiff filed suit against Cimarex, alleging that it was negligent in failing to provide him a safe place to work, failing to keep a proper lookout for his safety, fail-ing to allow him proper time for rest and recuperation and interrupting his sleep for unnecessary supervision, and creating a system that caused him to work while Ci-marex, through the actions of Smith, knew he was fatigued. Cimarex filed a motion for summary judgment on the basis that it owed no duty to Plaintiff because it was not aware that Plaintiff was fatigued. The district court agreed and granted summary judgment in Cimarex’s favor. Plaintiff now appeals.DISCUSSIONStandard of Review6 “We review de novo the granting of summary judgment, construing reason-able inferences from the record in favor of the party that opposed the motion. Sum-mary judgment is proper when there are no genuine issues of material fact and the

1While Cimarex disputes that Plaintiff worked for twelve consecutive days, that dispute is immaterial to our resolution of this case.




2Our Supreme Court has noted that in the context of landowner-contractor-subcontractor liability cases, the terms “general con-tractor,” “owner,” “lessor,” “lessee,” and “employer” are often used interchangeably to denote the possessor of the premises. See Tipton v. Texaco, Inc., 1985-NMSC-108, ¶ 20, 103 N.M. 689, 712 P.2d 1351 (internal quotation marks omitted). For clarity, we use the term “employer” to identify the person or entity that hired the independent contractor.

movant is entitled to judgment as a matter of law.” Blea v. Fields, 2005-NMSC-029, ¶ 10, 138 N.M. 348, 120 P.3d 430 (citation omitted).Outline of this Opinion7 The district court granted summary judgment on the ground that Cimarex owed no duty to Plaintiff, and the parties address their arguments to the question of duty. While “duty . . . is a question of law for the courts to decide,” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (internal quotation marks and citation omitted), in the context of the relationship between an independent contractor and an employer,2 there are fact questions that inform the court’s determination about duty. In this Opinion, we first discuss the general principles governing the employer/independent contractor relationship, and we distill the principles set out in our case law and Section 414 of the Restatement (Second) of Torts (1965). We then analyze the parties’ arguments in this case.General Principles Governing an Employer’s Liability to the Employees of an Independent Contractor8 Generally speaking, “the employer of an independent contractor is not liable for injuries to an employee of the independent contractor.” Valdez v. Cillessen & Son, Inc., 1987-NMSC-015, ¶ 21, 105 N.M. 575, 734 P.2d 1258. “The rationale underlying the rule is that the independent contractor, free to achieve a legal result (set by the [employer]) by any means it chooses, bears the risk should that operation, negligently performed, cause physical harm to oth-ers.” Marc M. Schneier, The Independent Contractor Rule: The Shifting Bedrock of Construction Accident Law, Construc-tion Briefings No. 2002-8, at 2 (2002). As with any general rule, however, there are exceptions, including two scenarios: where the employer controls the premises on which the work is being performed or where the employer retains control over the independent contractor’s performance of its work. Pollard v. Westinghouse Elec. Corp., 1995-NMCA-038, ¶ 6, 119 N.M. 783, 895 P.2d 683. These two grounds for an employer’s liability correspond to differ-ent sections of the Restatement (Second) of Torts (1965), Section 343 and Section 414, respectively. See Hinger v. Parker & Parsley Petroleum Co., 1995-NMCA-069,

¶ 22, 120 N.M. 430, 902 P.2d 1033. In this case, we are concerned with the second basis of liability, which relates to whether Cimarex had control over Patterson’s work so as to give rise to a duty owed by Cimarex to Plaintiff.9 Section 414 of the Restatement ad-dresses the notion of retained control and provides:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

The Restatement’s comments clarify that the extent of the employer’s control in-forms both (1) the question of whether the employer owes a duty to an independent contractor’s employee and (2) the question of whether the employer can be deemed liable to that employee, i.e., whether the employer breached its duty and caused the employee’s injuries. See Herrera, 2003-NMSC-018, ¶ 6 (explaining that “a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiff ’s damages”). Comment a to Section 414 explains that, even where the employer “may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others,” this “supervisory control” may subject the employer to li-ability “unless [the employer] exercises [the employer’s] supervisory control with reasonable care so as to prevent the work which [the employer] has ordered to be done from causing injury to others.” Re-statement (Second) of Torts § 414 cmt. a. Thus, (1) the employer owes a duty to an employee of an independent contractor if the employer has some kind of supervisory control over the independent contractor and, if the employer owes this duty, (2) it may be liable if it exercises its control in a negligent manner that causes injury to the independent contractor’s employee.10 It is clear that both inquiries are

fact driven. With respect to the employer’s duty, the parties must introduce evidence of the extent of the employer’s control over the independent contractor’s operations. Once the duty is established, the parties must introduce evidence on the question of liability, which involves the way in which the contractor exercised its control.11 Our case law in New Mexico has primarily addressed the duty aspect of Section 414. For example, in Tipton, our Supreme Court noted that the extent of an employer’s duty to the employees of an independent contractor “has been held to vary according to the . . . degree of control the [employer] exercises over . . . the details of the work.” 1985-NMSC-108, ¶ 20. Similarly, in Valdez, decided by our Supreme Court, and in two cases decided in 1995 by this Court, the focus was on the extent of the control retained or exercised by the employer. See 1987-NMSC-015, ¶ 20 (stating that “the critical issue is the degree of control alleged to have been maintained by [the employer]”); Pollard, 1995-NMCA-038, ¶ 6 (stating that “the extent of the duty owed by [the employer] is to some degree a function of the kind of control either re-tained or exercised by [the employer] over the work performed by [the independent contractor]”); Hinger, 1995-NMCA-069, ¶ 22 (stating that “[t]he extent and nature of the duty is often a function of the degree of control or power retained by the employer over the job”).12 In each of these cases, the Court determined, directly or indirectly, that the extent of the employer’s control was a fact question. In Valdez, the Court reversed summary judgment in favor of the employer because there were issues of fact as to the extent of control exercised by the employer, 1987-NMSC-015, ¶ 27, as did the Court in Pollard, 1995-NMCA-038, ¶¶ 8, 10. And in Hinger, the Court concluded that the jury had been properly instructed on the theory of the employer’s retained control, thereby implying that the matter was a fact question for the jury. 1995-NMCA-069, ¶¶ 22, 26, 31, 33; see also Pollard, 1995-NMCA-038, ¶ 6 (explaining that an analysis of “the kind of control either retained or exercised by [the employer] is primarily a fact-based question which does not lend itself easily to resolution by summary judgment”).



http://www.nmcompcomm.us/Advance Opinions13 The question not expressly answered by our case law is how much control the employer must have before it has a duty to an independent contractor’s employee. Instead, our cases have simply left the matter up to the fact finder if the evidence created issues about how much control the employer had. For example, in Valdez, the employer “agreed to be ultimately responsible for any infractions by [the independent contractor] of labor stan-dards provisions,” and it issued detailed instructions to the independent contrac-tor about how to do certain aspects of its work. 1987-NMSC-015, ¶ 24. The Court held that this evidence created issues of fact precluding summary judgment. Id. ¶ 26. In Pollard, the contract between the employer and independent contractor “arguably reserve[d] to [the employer] the right to direct [the independent contractor] to take such additional measures for the protection of [the independent contractor’s] employ-ees, as [the employer] determine[d] to be reasonably necessary.” 1995-NMCA-038, ¶ 7 (internal quotation marks omitted). The employer also required the independent contractor to comply with the employer’s safety manual and retained the right to approve any safety changes made by the independent contractor. Id.14 While this case law does not provide much definitive guidance about how much control is necessary to give rise to a duty, the Restatement gives us some assistance. Comment c to Section 414 states that “[i]t is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or rec-ommendations which need not necessarily be followed, or to prescribe alterations and deviations.” Restatement (Second) of Torts § 414 cmt. c. Rather, “[t]here must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Id.15 With these principles in mind, we turn to the circumstances and arguments in the present case.Issues of Fact Preclude Summary Judgment16 We understand Cimarex’s primary argument to be that, as a matter of law, it owed no duty to Plaintiff because it was not required to recognize that Plaintiff was exhibiting signs of fatigue or that he was possibly incapacitated by fatigue, es-pecially given the facts that Cimarex had no control over or awareness of Plaintiff ’s work schedule and Cimarex did not cre-

ate the work environment that caused Plaintiff ’s fatigue. Cimarex’s argument is too narrow. The question related to duty is not whether Cimarex had control over Plaintiff ’s fatigue or his schedule. The question is whether Cimarex had any right of supervision over Patterson’s operations such that Patterson was not free do its work in its own way. See Restatement (Second) of Torts § 414 cmt. c.17 Plaintiff introduced evidence sup-porting the view that Cimarex indeed had such supervisory control. Plaintiff submit-ted the contract between Patterson and Ci-marex, which stated that Patterson would “furnish equipment, labor, and perform services . . . under the direction, supervi-sion, and control of [Cimarex].” It further provided, “Except for such obligations and liabilities specifically assumed by [Patter-son], [Cimarex] shall be solely responsible and assumes liability for all consequences of operations by both parties . . . , includ-ing results and all other risks or liabilities incurred in or incident to such operations.” The contract also stated that “[Cimarex] agrees to adhere to [Patterson]’s [s]afety [p]rogram, [p]rocedures and [p]olicies[,]” and Patterson’s safety manual included a provision that every employee had the authority to prevent any co-worker from performing unsafe acts. In addition, Smith, Cimarex’s drilling consultant, testified that Plaintiff answered to him while they were on the rig. While Cimarex points to evi-dence suggesting that Patterson retained responsibility over the blowout preventer, which was what Plaintiff was en route to service at the time of the accident, this evi-dence simply creates an issue of fact about whether Cimarex had supervisory control over Patterson’s operations. In any event, whether Cimarex did or did not have this control is not a determination that could be made by the district court as a matter of law, given the dispute in the evidence.18 Cimarex’s arguments about whether it should have recognized that Plaintiff was fatigued or that his fatigue incapacitated him are not relevant to the question of duty but instead relate to whether Cimarex reasonably exercised the control it had, if any. For example, if on remand the court determines—following the fact finder’s conclusions regarding Cimarex’s retention of control—that Cimarex owed a duty to Plaintiff, the question becomes whether Cimarex knew or should have known that Plaintiff was incapacitated by fatigue and, if so, whether it should have done some-thing affirmative to address the problem.

The extent of control Cimarex had informs the extent to which it should have known anything about Plaintiff ’s condition or done anything about it. These are questions related to breach of duty and causation.19 We recognize that this Court in Fr-esquez v. Southwestern Industrial Contrac-tors and Riggers, Inc. stated that “[t]he right in a[n employer] to stop the [independent contractor] from proceeding with the work if dangerous practices are observed, does not carry with it liability to the employees of the very same [independent contractor] causing the dangerous condition.” 1976-NMCA-090, ¶ 39, 89 N.M. 525, 554 P.2d 986. However, this statement relates to the question of causation, not the concept of duty. If the evidence showed that it was Patterson alone whose conduct resulted in Plaintiff ’s incapacitating fatigue, then a jury could assess one hundred percent fault against Patterson.20 To the extent Cimarex is argu-ing that, as a matter of law, its failure to recognize the impact of Plaintiff ’s fatigue did not constitute a breach of duty or did not proximately cause Plaintiff ’s injuries, we are not persuaded. Plaintiff ’s evidence created issues of fact on breach and cau-sation. Plaintiff testified at his deposition that Smith knew that he had not had any sleep in twenty-four hours at the time the accident happened. Miguel Aguirre, Pat-terson’s lead tongs floorman, testified that he had worked with Plaintiff in the days preceding the accident and that Plaintiff looked tired and told him he had been up working for two days. Other work-ers on the rig reported that Plaintiff had looked tired or said he was tired prior to the accident. We “view the facts in a light most favorable to the party opposing summary judgment and draw all reason-able inferences in support of a trial on the merits.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted). Under this standard, Plaintiff has presented evidence giving rise to a reasonable inference that workers on the rig, including Cimarex’s consultant, knew or should have known that Plaintiff was fatigued prior to the accident. It is for the jury to decide whether this was in fact the case and, if it was, whether Cimarex’s knowledge of Plaintiff ’s fatigue had any-thing to do with his accident and injuries.21 The cases relied on by Cimarex are not helpful to its argument. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009); Nat’l Convenience Stores



http://www.nmcompcomm.us/Advance OpinionsInc. v. Matherne, 987 S.W.2d 145 (Tex. Ct. App. 1999). The courts in both cases analyzed the facts before them according to the duty announced in Otis Engineer-ing Corp. v. Clark, which holds that only an employer who takes affirmative action over an incapacitated employee because of the employee’s incapacitation must exercise reasonable care to prevent the employee from causing an unreasonable risk of harm to others. 668 S.W.2d 307, 311 (Tex. 1983); see Nabors, 288 S.W.3d at

403-404; Nat’l Convenience Stores Inc., 987 S.W.2d at 150. Unlike the showing required to invoke the duty found in those cases—evidence of actual knowledge of employee impairment and affirmative exercise of employer control over such impairment—our interpretation of the duty under the circumstances in the present case requires no such showing. Instead, if Cimarex had supervisory control over Patterson, which is a fact question, then Cimarex had a duty to Patterson’s employees to exercise that

control with reasonable care.CONCLUSION22 For the foregoing reasons, we re-verse summary judgment and remand for proceedings consistent with this opinion.23 IT IS SO ORDERED. CYNTHIA A. FRY, Judge

WE CONCUR:JAMES J. WECHSLER, JudgeM. MONICA ZAMORA, Judge




Certiorari Denied, January 28, 2014, No 34,490


Opinion Number: 2014-NMCA-027

Topic Index:Appeal and Error: Standard of Review

Insurance: Stacking; and Uninsured or Underinsured Motorist

CARMEN ARIAS,Plaintiff/Counter-Defendant/Appellee,

v.PHOENIX INDEMNITY INSURANCE COMPANY,

Defendant/Counter-Plaintiff/AppellantDocket No. 31,571 (filed December 5, 2013)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYTED C. BACA, District Judge

RICHARD J. VALLEKATHRYN L. EATON

CARTER & VALLE LAW FIRM, P.C.Albuquerque, New Mexico

for Appellee

BRUCE S. MCDONALDDANIEL P. ULIBARRI

LAURA K. VEGATHE LAW OFFICES OF BRUCE S. MCDONALD

Albuquerque, New Mexicofor Appellant

Opinion

Roderick T. Kennedy, Chief Judge1 “The term ‘stacking’ refers to an insured’s attempt to recover damages in aggregate un-der . . . one policy covering more than one ve-hicle.” State Farm Mut. Auto. Ins. Co. v. Safeco Ins. Co., 2013-NMSC-006, ¶ 8, 298 P.3d 452 (internal quotation marks and citation omitted). Plaintiff attempts to impose intra-policy stacking of uninsured/underinsured motorist (UM/UIM) coverage into an insur-ance policy we previously reformed, owing to the imperfect handling of her rejection of UM/UIM coverage. See Arias v. Phoenix Indem. Ins. Co., 2009-NMCA-100, 147 N.M. 14, 216 P.3d 264. In Arias, we held that her rejection of UM/UIM coverage was legally deficient and required judicial intervention to read the coverage into the policy. Id. ¶ 18. On similar grounds, we hold that she is also entitled to have her coverage stacked under our Supreme Court’s opinion in Montano v. Allstate Indem. Co., 2004-NMSC-020, 135 N.M. 681, 92 P.3d 1255. We affirm the district court and remand.I. BACKGROUND2 Carmen Arias (Plaintiff ), having settled for policy limits with the insurance

company of a tortfeasor whose vehicle struck hers, attempted to pursue UM/UIM benefits under an insurance policy that she had purchased from Phoenix In-demnity Insurance Company (Defendant). This policy covered her liability up to the statutory minimum and covered two ve-hicles but, at the time of its purchase, she rejected UM/UIM coverage. In a previous appeal in this case, we held that, because her rejection of UM/UIM coverage was le-gally invalid, she was entitled to UM/UIM coverage as a matter of law. See Arias, 2009-NMCA-100, ¶ 12. The issue of whether the coverage “stacked” because two vehicles were covered under the policy had not been addressed by the district court, and we remanded with instructions to consider and rule on the stacking issue. Id. ¶ 19.3 On remand, the district court resolved the stacking issue on summary judgment. Plaintiff ’s judicially minted UM/UIM coverage would apply to her damages, and the coverage would be stacked, reflect-ing the two vehicles covered under the policy. In doing so, the district court first determined that reasonable expectations of an insured in the terms of a policy are irrelevant once it was determined by this

Court that Defendant had failed to obtain a valid rejection of UM/UIM coverage from Plaintiff. Second, interpreting the arc of New Mexico’s common law hold-ings that read UM/UIM coverage into a policy in amounts equal to the full extent of its liability limits, the district court determined that, in the absence of any valid rejection of UM/UIM coverage in a multiple-vehicle policy, the full coverage due is properly established by multiplying the available liability limits of the policy by the number of vehicles insured, rather than the number of premiums paid by an insured. The district court stated that UM/UIM coverage had been read into the policy as a result of Defendant entirely fail-ing to obtain a valid rejection of coverage, and the reformation of the policy should include reading in stacking as well. From this judgment, Defendant now appeals. We agree with the district court.II. DISCUSSION4 The facts of this case are not in issue and were discussed fully in our previ-ous opinion. The question is solely one involving interpretations of law, which we review de novo. Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 14, 149 N.M. 162, 245 P.3d 1214; City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146 (holding that, in such a situation, we apply de novo review and are not re-quired to view the appeal in the light most favorable to the party opposing summary judgment).5 In Romero v. Dairyland Insurance Co., our Supreme Court observed that unless rejection is accomplished in a manner consistent with the requirements imposed by the statute and regulations, UM/UIM coverage will be read into the policy “regardless of the intent of the par-ties.” 1990-NMSC-111, ¶ 1, 111 N.M. 154, 803 P.2d 243. Our Supreme Court further stated that the UM/UIM statute “embod-ies a public policy of New Mexico to make uninsured motorist coverage a part of every automobile liability insurance policy issued in this state,” and “[t]he statute was intended to expand insurance coverage and to protect individual members of the public against the hazard of culpable uninsured motorists.” Id. ¶ 6. Finally, our Supreme Court stated that the statute should be liberally interpreted in order to implement its remedial purpose, and the language in the statute that provides for an exception to UM/UIM coverage should be construed strictly to protect the insured.



http://www.nmcompcomm.us/Advance OpinionsId.; Farmers Ins. Co. of Ariz. v. Chen, 2010-NMCA-031, ¶ 25, 148 N.M. 151, 231 P.3d 607.6 Our courts have a continuing interest in implementing the legislative goal to di-rect New Mexicans to insure for damages caused by uninsured and underinsured motorists. In Arias, we followed Romero to implement the strong expansive legislative and public policy in New Mexico favoring insurance coverage to protect members of the public against losses caused by uninsured and underinsured motorists. Arias, 2009-NMCA-100, ¶ 7. We recognize that the Legislature enacted NMSA 1978, Section 66-5-301(A) and (C) (1983) to provide that every insurance policy in the state is to include UM coverage and, if the insured does not want the coverage, it should be specifically rejected in writ-ing. Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶¶ 16-17, 25-26, 147 N.M. 678, 228 P.3d 462 (expressing the written rejection and attached notifica-tion requirements). Under our law, the insurer offers the maximum amount of UM/UIM coverage to the insured based on the liability limits of the policy and, in no event, less than the statutory minimum. Progressive Nw. Ins. Co. v. Weed Warrior Servs., 2010-NMSC-050, ¶ 12, 149 N.M. 157, 245 P.3d 1209; Romero v. Progressive Nw. Ins. Co., 2010-NMCA-024, ¶ 16, 148 N.M. 97, 230 P.3d 844. Such coverage may only be foregone by an insured’s express and legally satisfactory rejection of it.7 The history of our case law consider-ing the offer and rejection of UM/UIM coverage is extensive. See Weed Warrior, 2010-NMSC-050, ¶ 4 (listing cases that constitute the evolution of jurisprudence in this area). The default position of our courts is that any rejection of coverage that is found to be invalid under Section 66-5-301 results in courts reforming the insurance policy in question by reading into it UM/UIM coverage as if it was fully provided at the level of policy limits to the insured in the first instance. Romero, 2010-NMCA-024, ¶ 16; see Jordan, 2010-NMSC-051, ¶ 2. “Where a valid rejection of UM/UIM coverage has not been obtained by the insurer, New Mexico law requires UM/UIM coverage to be read into the policy at the liability limits, regardless of the intent of the parties or the fact that a premium has not been paid.” Chen, 2010-NMCA-031, ¶ 27 (noting that the de-emphasis on premium payment becomes significant when dealing with an invalid rejection of both coverage and stacking).

8 We have already reformed Plaintiff ’s insurance contract to include UM/UIM coverage to the liability limits of her policy because Section 66-5-301 and 13.12.3.9 NMAC (5/14/2004) provide that automobile liability policies shall contain UM/UIM coverage in the absence of an appropriate rejection. Arias, 2009-NMCA-100, ¶ 15. Now that the district court on remand has separately considered whether Plaintiff ’s two insured vehicles’ coverage should be stacked, we review this remain-ing question.A. Insufficient Rejections of

Coverage Result in Reading in UM/UIM Coverage to Policy Limits

9 There is no question that, in the absence of a valid rejection of UM/UIM coverage, such coverage will be read into the insured’s coverage as if there was no rejection at all. That is the law of the case here. Id. ¶ 12. The invalid rejection of par-tial UM/UIM stacking, or the ambiguous subjecting of a policy to a limitation on stacking, was similarly held in Montano to be no rejection at all, resulting in stacking to the policy limits for each covered vehicle being read into the policy. The question here is simply whether a complete read-ing of UM/UIM coverage where none had been before also requires the reading in of stacking of coverage if multiple vehicles are insured.10 Plaintiff insured two vehicles under her policy. By our earlier decision in Arias, she is entitled to UM/UIM coverage to the limits of her liability under the policy irrespective of her intention to reject cov-erage or whether separate premiums were paid. Chen, 2010-NMCA-031, ¶ 27. To begin answering the question of whether stacking applies here, we will first assess the circumstances under which common law imposition of stacking upon insurance policies has occurred.B. Stacking in New Mexico11 Montano holds that insurers must obtain written rejections of stacking to avoid liability. 2004-NMSC-020, ¶ 1. UM/UIM coverage as required by statute is a mandatory component of an insurance policy. In Montano, the policy provided for some, but not all, covered vehicles’ cover-age to be stacked. As a result, our Supreme Court’s pronouncements in Montano treated the stacking issue as a “judicially-created doctrine, which thus far has not met the disapproval of the Legislature[,]” id. ¶ 17, but also something that had been predicated on the insured’s payment of “a separate premium for the uninsured mo-

torist coverage on each car insured under the policy[,]” id. ¶ 12 (internal quotation marks and citation omitted). Given that the Montano policy had stacked cover-age subject to a separate premium, this language does not apply well to our case, where all UM/UIM coverage was judicially created. In the present case, there was a single policy, but no premium paid at all for UM/UIM coverage owing to our read-ing it into the policy. Following Montano, our Supreme Court was providing UM/UIM coverage up to liability limits, they were silent on whether this judicially cre-ated coverage was to be stacked. Jordan, 2010-NMSC-051. We first conclude that the rationale expressed in Chen that pay-ment of any premium is irrelevant to our reading coverage into a policy in general should be extended to the question of stacking where the policy itself was silent, but coverage is read in the contract by the courts.12 Despite Montano’s discussion of stacking as “extra coverage for which the parties have contracted,” it is clear that, absent the execution of a sufficient rejec-tion of each and every possible combina-tion of stacking, stacking is something “to which the insured is entitled by de-fault[.]” 2004-NMSC-020, ¶ 18 (internal quotation marks and citation omitted). Defendant’s attempts to rely on Montano to limit stacking only to where “those who want stacked coverage pay for it, and those who don’t want it don’t pay for it” is inapposite. Id. (internal quotation marks and citation omitted). Separate premiums are extraneous to Montano’s strong dicta indicating a preference for policies to treat vehicles individually and, hence, requir-ing a policyholder’s specific rejection of stacked coverage for each and every vehicle owned before stacking is validly rejected. Id. ¶ 19. Montano dealt with a policy that specifically sought to limit stacking by its terms, but wound up having those limita-tions struck down and full per-vehicle stacking imposed on the policy when an ambiguity resulted in an invalid rejection of stacking. In the absence of any such terms or premiums to be paid for stacking in this case, Montano demonstrates that, when invalid rejection of stacking exists, our courts favor and extend stacking to all vehicles covered by the policy. See id. ¶ 1.13 This returns us to the expansive policy perspective of the Legislature as to this issue and our common law that no liability policy may issue, except that it pro-vides “any vehicle registered or . . . garaged



http://www.nmcompcomm.us/Advance Opinionsin New Mexico” is to be covered by UM coverage. Id. ¶ 19; § 66-5-301(A). Stacking must then be a default entitlement with regard to all individual vehicles covered under a policy where no sufficient rejection of stacking exists. Although Montano in-dicates the possible propriety of a stacking exclusion when under a policy only a single premium is paid and a specific rejection is properly executed, that is not the case here. Montano clearly requires an unambiguous rejection to defeat stacking as well and, in this case, we have neither a rejection of coverage or stacking as a matter of law. The lack of a valid rejection of UM/UIM cover-age in this case led us to read coverage into the insurance contract. It appears we must now do the same with stacking of coverage as it would apply to each covered vehicle. The judicial imposition of stacking, like imposing coverage when an insured did not validly reject it, must inure exclusively to the benefit of the insured as a default position. Montano, 2004-NMSC-020, ¶ 19 (stating that the statute required each vehicle covered under a policy be covered by one minimum coverage, together with the requirement of written rejection of UM/UIM coverage combine to defeat an insurance company’s attempt to limit liability by avoiding stacking). Unless a policy “notif[ies] the insured that only one premium has been charged for one insurance coverage[,]” full stacking is read into the policy. Id. ¶ 27 (internal quotation

marks and citation omitted). Where courts confer UM/UIM coverage where a policy is silent on the matter, it follows that each vehicle covered also acquires coverage, and those coverages are to be stacked.14 Our opinion in Arias left the stack-ing issue open as to the coverage we im-posed on the insurance contract between the parties. We acknowledge that, by creating the coverage without reference to stacking, we created a legal ambiguity as to the extent of that coverage that also has implications for the question of whether to order stacking. “A court may find that an ambiguity exists if separate sections of the policy conflict, if the language may have more than one meaning, if the structure of the contract is not logical, or if a rel-evant matter of coverage is not explicitly addressed in the policy.” Bird v. State Farm Mut. Auto. Ins. Co., 2007-NMCA-088, ¶ 11, 142 N.M. 346, 165 P.3d 343. Bird held that, in the absence of such terms, coverage is to be read into the policy by our courts. We hold that, as much as coverage itself to the maximum limit of liability must be read into her policy, stacking of coverage for each of the two vehicles thus insured must now follow suit absent valid rejection, and we affirm the district court.C. Failing to Adequately Reject

Stacking Results in the Imposition of Stacking

15 Thus, we conclude that as we inject UM/UIM coverage into a policy as a mat-

ter of law for failure of any rejection of cov-erage, the law also requires the imposition of a per-vehicle stacking of coverage into a single policy. In this case, ambiguities arose in Arias’s policy’s language, owing first to the defective rejection of coverage requiring that coverage be read into the policy. Second, the requirement noted above that coverage applies to any vehicle demands stacking of coverage in the ab-sence of indications to the contrary. Hav-ing extended to her the availability of UM/UIM coverage as a matter of law, we also include per-vehicle stacking. We believe that, in the absence of a rejection of cover-age altogether, the coverage that must be extended is the full measure accorded her by the default positions afforded by law. This includes UM/UIM coverage generally, specifically to be stacked as to each of her insured vehicles.III. CONCLUSION16 We hold that the district court was correct as a matter of law and affirm its grant of summary judgment to Plaintiff and remand for resumption of proceedings in accordance with our ruling today.17 IT IS SO ORDERED. RODERICK T. KENNEDY,

Chief Judge

WE CONCUR:JONATHAN B. SUTIN, JudgeJ. MILES HANISEE, Judge



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1:45 p.m. Encinias v. Whitener and Governmental Premises Liability Bruce E. Thompson, Esq.2:30 p.m. The Doctor-Patient Relationship vs. The Lawyer-Doctor-Hospital Relationship Kristina Bogardus, Esq.3:00 p.m. Break3:15 p.m. Update on Consumer Law and the Unfair Practices Act David C. Kramer, Asst. Attorney General4:00 p.m. ...And the Kitchen Sink: Other Recent Decisions of Interest David J. Stout, Esq.

5:00 p.m. Adjourn

Bruce E. Thompson, Program Co-ChairJoleen K. Youngers, Program Co-Chair

New Mexico Trial lawyers 33rd aNNual

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Associate AttorneyThe Santa Fe law firm of Katz Ahern Herd-man & MacGillivray PC is seeking a full-time associate with zero to five years of experience to assist in all areas of our practice, including real estate, zoning, business, employment, construction and related litigation. Please send resumes to [email protected]. Please state “Associate Attorney Position” in email subject line.

Associate AttorneyChapman and Charlebois, P.C. is seeking an insurance defense attorney to join our Litiga-tion Team. Duties would include: providing legal analysis and advice, preparing and filing legal pleadings and documents, performing legal research, preparing for and conducting pre-trial discovery, preparing for and con-ducting administrative and judicial hearings, civil jury trials and post-trial activities. Attor-ney must have 3+ years of experience. Please submit resume and salary requirements to: [email protected]

13th Judicial District AttorneyDeputy District Attorney – Cibola CountySenior Trial Attorney/Associate Trial AttorneyCibola, Sandoval, Valencia CountiesDeputy District Attorney - The Thirteenth Judicial District Attorney’s Office is accepting applications for an experienced attorney to fill the position of Deputy District Attorney at the Cibola County Office in Grants, NM. This is an advanced level position which requires experience in complex litigation, prosecution of high level criminal cases and management of a mid-sized district office. Requirements include admission to NM State Bar plus a minimum of six years as a practicing attorney in criminal law, at least two years of supervi-sory/management experience and knowledge of employment law. Senior Trial Attorney - in the Cibola (Grants), Sandoval (Bernalillo) or Valencia (Belen) County Offices. 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. Associate Trial Attorney - an entry level position for Cibola (Grants), Sandoval (Bernalillo) or Valencia (Belen) County Of-fices. 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 com-mensurate 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 posi-tions are filled.

County AttorneyLea County GovernmentLea County seeks a Chief Legal Officer with 5-10 years of experience in the public/corpo-rate sector. Lea County is a progressive oil and gas producing county and the fastest grow-ing county in New Mexico. Lea County has a population of approximately 65,000 with 321 budgeted employees and a total budget of $114 million. The Chief Legal Officer must analyze and review complex legal issues and provide counsel and advice to County Manager, Board of Commission, Depart-ment Heads and elected officials. Counsel will assist with litigation pertaining but not limited to contracts, employment, real estate, compliance and regulatory issues, zoning and subdivisions and industrial revenue bonds. Please forward resume and salary require-ments to: Lea County Human Resources, 100 N Main, Suite 4, Lovington, NM 88260.

Experienced AssociateAn AV rated insurance defense/civil litiga-tion firm, in Albuquerque, is seeking an experienced litigation attorney with 3 or more years experience. Ideal candidate will possess strong analytical skills, excellent oral and written communication skills, and must be a highly motivated professional that can take initiative and work independently by managing an assigned case load. Extensive experience with taking depositions, han-dling court hearings, and communicating with clients are highly desired qualifica-tions. Extensive benefits package available, including insurance and retirement. Salary DOE. Please forward your resume and salary requirements. PO Box 92860, Albuquerque, NM 87199, Attn: Box B

Litigation AttorneyDowntown insurance defense firm seeking associate with at least three years of experi-ence in civil litigation. This person should have strong research and writing skills and the ability to work independently. Salary competitive and commensurate to experi-ence. Inquiries will be kept confidential. Please forward CVs to: Ada B. Priest, Esq., Madison & Mroz, P.A., P.O. Box 25467, Al-buquerque, NM 87125-5467.

Associate Attorney PositionRiley, Shane & Keller, P.A., an Albuquerque AV-rated defense firm, seeks an Associate to help handle our increasing case load. We are seeking a person with one to five years experience. Candidate should have a strong academic background as well as skill and interest in research, writing and discovery support. Competitive salary and benefits. Please fax or e-mail resumes and references to our office at 3880 Osuna Rd., NE, Albu-querque, NM 87109 c/o Office Manager (fax) 505-883-4362 or [email protected]

Request for Proposals to Provide Legal ServicesThe Pueblo of Laguna is seeking proposals to provide General or Special Counsel legal services by the designated times and dates: Due by April 30, 2014 at 4:30 PM. Proposal information can be accessed at http://www.lagunapueblo-nsn.gov/rfp_rfq.aspx. For ad-ditional information or questions, contact the Government Affairs Office at (505) 552-6654.

ClassifiedPositions

Associate AttorneyHoffman Kelley Lopez LLP, insurance defense firm, is expanding and seeking an associate attorney with up to 5 years experi-ence. Litigation and/or workers' compensa-tion experience a plus. Health benefits and 401(k) offered. Send resume and references to: Hiring Partner by fax at 800-787-9748 or by email to [email protected]. No phone calls accepted.

Associate Trial Attorney/Assistant Trial Attorney or Senior Trial AttorneyColfax CountyThe Eighth Judicial District Attorney’s Office is accepting applications for an entry level Associate Trial Attorney, Assistant Trial At-torney or Senior Trial Attorney in the Raton Office. The position will be responsible for a felony and misdemeanor caseload plus administrative duties. Salary will be based upon experience and the District Attorney Personnel and Compensation Plan. Please send interest letter/resume to Daniel L. Romero, Chief Deputy District Attorney, 105 Albright Street, Suite L, Taos, New Mexico 87571 or [email protected].





http://www




United States District Court, Albuquerque, Full-time Term Law Clerk; $57,982-$126,949 DOQSee full announcement and application at www.nmcourt.fed.us Send cover letter, resume and application to: [email protected] Successful applicant subject to FBI & fingerprint checks. EEO employer

PT and FT Attorney Positions1 PT and 1 FT attorney position at the Santa Fe Offices of Jay Goodman and Associates Law Firm, PC: 5 years or more experience as a licensed attorney in Family Law in NM. Please fax resume to [email protected] or fax to (505) 989-3440.

Prosecutor Position AvailableThe Twelfth Judicial District Attorney’s Office in Otero/Lincoln County has a job opening available for a Senior Trial Attorney or Assistant Trial Attorney position. Job re-quirements, qualifications, skills, and other information pertaining to this position can be viewed at the New Mexico District Attor-neys’ website at www.da.state.nm.us under personnel inquiries. Salary offered will be based on qualifications and experience and is consistent with the New Mexico District At-torney’s Association Pay and Compensation Plan. Interested individuals should send a letter of interest and a resume to District At-torney, Diana A. Martwick, 1000 New York Ave., Room 101, Alamogordo, NM 88310 or fax to 575-434-2507.

Position AnnouncementAssistant Federal Public Defender - Las Cruces2014-10The Federal Public Defender for the District of New Mexico is seeking a full time, expe-rienced trial attorney for the branch office in Las Cruces. More than one vacancy may be filled from this announcement. Federal salary and benefits apply. Applicant must have one year minimum criminal law trial experience, be team-oriented, exhibit strong writing skills as well as a commitment to criminal defense for all individuals, including those who may be facing the death penalty. Span-ish fluency preferred. Writing ability, federal court, and immigration law experience will be given preference. Membership in the New Mexico Bar is required within the first year of employment. The private practice of law is prohibited. Selected applicant will be subject to a background investigation. The Federal Public Defender operates under authority of the Criminal Justice Act, 18 U.S.C. § 3006A, and provides legal representation in federal criminal cases and related matters in the fed-eral courts. The Federal Public Defender is an equal opportunity employer. Direct deposit of pay is mandatory. Please submit a statement of interest and detailed résumé of experience, including trial and appellate work, with three references to: Stephen P. McCue, Federal Pub-lic Defender, 111 Lomas Blvd. NW, Suite 501, Albuquerque, NM 87102. Writing samples will be required only from those selected for interview. Applications must be post marked by April 25, 2014. Position will remain open until filled and is subject to the availability of funding.

Staff Attorney- Anadarko, OKWestern Farmers Electric Cooperative is re-cruiting for a Staff Attorney which provides legal advice and counsel to Cooperative management and personnel on a variety of topics including: regulatory compliance, contract development, contract adminis-tration, litigation management, legal cor-respondence, and the creation and review of business documents such as contracts, interconnection agreements, transmission service agreements, and regulatory matters involving power supply, transmission servic-es and reliability. The incumbent researches, drafts, reviews, interprets and negotiates legal documents on behalf of various depart-ments on a wide range of legal questions. The Staff Attorney will focus on regulatory compliance issues. Visit www.wfec.com for complete details and apply on-line. WFEC IS AN EQUAL OPPORTUNITY EMPLOYER MINORITIES, WOMEN, DISABLED, AND VETS ARE ENCOURAGED TO APPLY EOE/M/W/D/V

Assistant Trial Attorney, Senior Trial Attorney, and Deputy District Attorney PositionsThe Ninth Judicial District Attorney’s Office, located in Curry and Roosevelt Counties, is now accepting resumes for Assistant Trial Attorney, Senior Trial Attorney, and Deputy District Attorney positions. Salary will be commensurate with experience and budget availability. Excellent benefits available. Please send a cover letter, resume and refer-ences to Andrea Reeb, District Attorney, 417 Gidding, Ste 200 Clovis, NM 88101.

Assistant District AttorneyThe Fifth Judicial District Attorney’s office has an immediate position open to a new or expe-rienced attorney. Salary will be based upon the District Attorney Personnel and Compensation Plan with starting salary range of an Associ-ate Trial Attorney to a Senior Trial Attorney ($41,685.00 to $72,575.00). Please send resume to Janetta B. Hicks, District Attorney, 400 N. Virginia Ave., Suite G-2, Roswell, NM 88201-6222 or e-mail to [email protected].

Associate AttorneyBusy PI Law Firm looking for experienced at-torney. Position would be to 2nd chair; litiga-tion involving medical malpractice, products liability, and mass torts. Extensive travel may be required. Salary commensurate with expe-rience – bonuses also available. Please email confidential resume for consideration to the attention of Margaret M. Branch: [email protected] Paralegal and Legal Assistant

One Paralegal and one Legal Assistant needed soon – to replace two assistants, both leav-ing our office for law school! Must be bright, consistent, detail-oriented and team players, with excellent writing and organizational skills. Full-time position, M-F 8 to 5. See our Mission Statement at www.ParnallLaw.com. Email cover letter, resume, references and grade transcripts to [email protected].

ParalegalExperienced mature paralegal seeks part-time or contract work in Santa Fe. Please contact Tish Gallarda at (505) 603-7442 or [email protected]. Resume and excellent written refer-ences will be provided.

Legal Secretary/Legal AssistantDowntown insurance defense firm seeking FT legal secretary with 3+ yrs. recent litiga-tion experience. Current knowledge of State and Federal District Court rules a must. Prior insurance defense experience preferred. Strong work ethic, positive attitude, superior grammar, clerical and organizational skills required. Good benefits. Salary DOE. Send resume and salary history to: Office Admin-istrator, Madison & Mroz, P.A., P.O. Box 25467, Albuquerque, NM 87125-5467 or fax to 505-242-7184.

http://www.nmcourt.fed.us


http://www.da.state.nm.us

http://www.wfec.com


http://www.ParnallLaw.com



Help and support are only a phone call away. Confidential assistance – 24 hours every day.

Judges call 888-502-1289Lawyers and law students call 505-228-1948 or 800-860-4914

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New Mexico Lawyers and Judges Assistance Program (NMJLAP) provides free, confidential assistance to law students and members of the New Mexico bench and bar to help identify and address problems with alcohol, drugs, depression, and other mental health issues. NMJLAP assists in reducing public harm caused by impaired

members of the legal profession and helps improve the health and welfare of its members by facilitating early intervention and treatment.

Office Space

Services

Contract ParalegalParalegal with 25 years' experience avail-able for work in all aspects of civil litigation on a contract basis. Excellent references. [email protected].

Briefs, Research, Appeals —Leave the writing to me. Experienced, effec-tive, reasonable. [email protected](505) 281 6797

Downtown OfficesOne or two offices available for rent, includ-ing secretarial areas, at 2040 4th St. NW (I-40 & 4th St.), ABQ. Rent includes receptionist, use of conference rooms, high speed internet, phone system, free parking for staff and cli-ents, use of copy machine, fax machine and employee lounge. Contact Jerry or George at 505-243-6721 or [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, janito-rial 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.

Completely Renovated Building for LeaseCompletely renovated building for lease in Downtown Albuquerque (4-5 office rooms plus plenty of secretarial space) three blocks from courts. Metal privacy (security) fencing, all natural materials: adobe, clay plastered walls, hardwood floors, travertine tile, granite counter tops, 7 skylights. Brand new alarm system, pre-wired for internet and cable throughout, tankless water heater, high qual-ity fixtures throughout, refrigerated air, etc. Remodel done by award winning architect. Asking $2,500/mo. Call: (505) 345-9616 for a showing.

Office Space - Nob HillOffice space available immediately in an existing law office in the heart of Nob Hill. Ideal for sole practitioner. Tenant will receive the following: Individual office, use of shared lobby, conference room, kitchen, copy room, parking for clients, receptionist. Individual signage available. Month to month or long term leases are negotiable. Call 505-924-2121

Full Service Offices Downtown-PLAZA 500Includes furniture, telephone, high speed internet, conference rooms, training room, executive lounge, receptionist and parking. Located in the Class A, 22-story Albuquer-que Plaza located next to the Hyatt Regency. Starting at $600 monthly. 505-944-9090. ABQPlaza500.com.

New Space: Best Location “Build Out” Yourself1469SF professional office space. Northeast views. Can develop to Tenant’s requirements. Prime Uptown location, high visibility, convenient access to I-40; Bank of America, companion restaurants on-site: Shopping, extensive landscaping, ample parking, full-service lease. 6% commission to leasing office. Comcast Business Class available at Uptown Square (includes High-Speed Internet, Tele-phone and Television). Call for more infor-mation. Call John Whisenant or Ron Nelson883-9662

Paralegal/Legal AssistantAlbuquerque firm seeking paralegal/legal as-sistant to support two busy attorneys. Firm’s practice includes business transactions and commercial litigation, commercial real estate, and general civil litigation. Must be bright, dependable, detail-oriented and able to multi-task and prioritize assignments. Please send resume, cover letter, and references to [email protected]. Inquiries kept confidential.

Legal Secretary/AssistantDo you have 3 or more years experience as a legal secretary? Are you familiar with civil litigation, court rules and filing procedures? Are your clerical, organization, computer and word processing skills exceptional? Then send your resume to this well respected, highly pro-ductive law firm at [email protected]

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