november 30, 2009 • volume 48, no. 48 - state bar of … r bu l l e t i n - november 30, 2009 -...

Bar Bulletin - November 30, 2009 - Volume 48, No. 48 1

Inside This Issue

www.nmbar.org

November 30, 2009 • Volume 48, No. 48

Table of Contents ................................................. 5

2010 State Bar Budget Disclosure ......................... 7

Disclosure of Professional Liability Insurance ....... 8

EAJ Holds 2nd Annual Justice for All Ball: Indiana Jones, Vanilla Pop, and Cherries Jubilee Made It a Ball, by Dorma Seago ................................. 9

2009 Celebrate Pro Bono Week: Pro Bono Lawyers Make a Huge Difference, by Nita Taylor ........... 11

Roehl Announces 2009 Circle of Honor Inductees, by Jerrald J. Roehl ........................................... 13

How to Develop a Basic Budget, Part 4, by Donald D. Becker ...................................... 14

From the New Mexico Supreme Court

2009-NMSC-050, No. 30,657: State v. Nick R. .............................................. 23

2009-NMSC-051, No. 31,455: State v. Correa ................................................ 30

From the New Mexico Court of Appeals

2009-NMCA-122, No. 29,239: Dickens v. Laurel Healthcare .......................... 36

2009-NMCA-123, No. 27,332: Rael v. Page .................................................... 38

2009-NMCA-124, No. 28,419: State v. Jacquez ............................................... 42

Biemme Parmigiano Reggiano Factory by Susan Weeks (see page 5) Patrician Design, Albuquerque

Special Insert:Young Lawyer Division’s

In Brief

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2 Bar Bulletin - November 30, 2009 - Volume 48, No. 48

Center for LegaL eduCationNew Mexico State Bar FouNdatioN

TWO WAYS TO REGISTERINTERNET: www.nmbarcle.org FAX: (505) 797-6071, 24 hour access

Name ___________________________________________________________________ NM Bar # _________________________________

Street ____________________________________________________________________________________________________________

City/State/Zip _____________________________________________________________________________________________________

Phone ____________________________________________________ Fax ____________________________________________________

E-mail ____________________________________________________________________________________________________________

r Purchase Order (Must be attached to be registered) r Check enclosed $ ____________ Make check payable to: CLE

Credit Card # ________________________________________________________________ Exp. Date ________________ CVV# ________________

Authorized Signature _______________________________________________________________________________________________

FOURTH ANNUAL PARALEGAL INSTITUTE:Technology and Investigation

PLEASE NOTE: Attorneys will not receive credit for this seminar.

Friday, December 11, 2009 • State Bar Center, Albuquerque5.0 General and 1.0 Ethics CLE Credits

r Standard Fee $99 r FrEE for Paralegal Division MembersCo-Sponsor: Paralegal Division

8:00 a.m. Registration8:30 a.m. Ethics Leigh Anne Chavez, Esq.9:30 a.m. Structure of Power Point for Trial Leigh Anne Chavez, Esq.10:30 a.m. Break10:45 a.m. Breakout sessions A-Medical Records/HIPAA Joan Schofield, Case Manager, Medview B-Technology Tips for Case Management and

Presentation of Evidence Jeanne Adams, Jencor Associates, Inc.12:00 p.m. Lunch

1:00 p.m. Fact-finding Investigation Tips and Techniques Mike Corwin, Private Investigator,

Corwin research & Investigations, LLC2:30 p.m. Break2:45 p.m. Breakout sessions A-Basic Collection of Judgments and

Identity Theft Issues Chris Garcia, Esq., New Mexico Legal Aid Inc. B-Structured Settlements: Structures 101 Kelly ramsdale, President of Kelly ramsdale &

Associates, a national plaintiff-only structured settlement consulting firm in Denver, Colorado

also available viaLIVE WEBCAST

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Center for LegaL eduCationNew Mexico State Bar FouNdatioN

TWO WAYS TO REGISTERINTERNET: www.nmbarcle.org FAX: (505) 797-6071, 24 hour access

Please Note: For all WEBCASTS, you must register online at www.nmbarcle.org

Name ___________________________________________________________________ NM Bar # _________________________________

Street ____________________________________________________________________________________________________________

City/State/Zip _____________________________________________________________________________________________________

Phone ____________________________________________________ Fax ____________________________________________________

E-mail ____________________________________________________________________________________________________________

r Purchase Order (Must be attached to be registered) r Check enclosed $ ____________ Make check payable to: CLE

Credit Card # ________________________________________________________________ Exp. Date ________________ CVV# ________________

Authorized Signature _______________________________________________________________________________________________

(A.M.) - THE “WRITE” WAY TO WRITE PERSUASIVELY(P.M.) – THE ZEALOUS ADVOCATE: BECOMING

A POWERFUL NEGOTIATORwith Stuart I. Teicher, Esq.

Thursday, December 17, 2009 • State Bar Center, Albuquerquer Standard Fee - A.M. only (3.0 General CLE Credits) $129 r Standard Fee - P.M. only (3.0 General CLE Credits) $129

r Standard Fee - Both A.M. and P.M. (6.0 General CLE Credits) $219

The “Write” WayZip toward success with Stuart Teicher’s “MPH System” for learning the critical advocacy skill of persuasive writing. In the MPH System we focus on: • Developing the write Mindset, by adopting a Captisuading™ approach • Learning a better Process in the form of a Writing System, and • Developing the write long-term Habits—ensure success with an Editing System

The Zealous AdvocateAttorneys must strive to get the best result for the client without going overboard. Mr. Teicher draws on his experience as an ethics investigator and his talents as a CLE Performer to teach an entertaining seminar where attorneys learn how to be an assertive negotiator without sacrificing integrity or good judgment. • Learn how to prepare your case so you develop a Powerful Position • Understand the secret to preparing yourself so you create Personal Power • Discuss practical Tactics, Techniques and Countermeasures and review Key Logistics

8:30 a.m. Registration8:45 a.m. The “Write” Way To Write Persuasively Stuart I. Teicher, Esq.10:15 a.m. Break10:30 a.m. The “Write” Way (continued)12:00 p.m. Lunch (provided at the State Bar Center)1:00 p.m. Break

1:15 p.m. The Zealous Advocate: Becoming A Powerful Negotiator

Stuart I. Teicher, Esq.2:45 p.m. Break 3:00 p.m. The Zealous Advocate (continued)4:30 p.m. Adjourn

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Table of ConTenTs

MeetingsDecember2 Bankruptcy Law Section Board of Directors, noon, Location TBA

7 Attorney Support Group, 5:30 p.m., First United Methodist Church

8 Appellate Practice Section Board of Directors, noon, Rodey Law Firm

9 BBC Finance Committee Meeting, 9 a.m., BBC Meeting, 10 a.m., Supreme Court Building, Santa Fe

9 Children’s Law Section Board of Directors, noon, Juvenile Justice Center

State Bar WorkshopsDecember2 Lawyer Referral for the Elderly Workshop 10–11:30 a.m., Presentation 1:30–4 p.m., Clinics Belen Senior Center, Belen

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

10 Consumer Debt/Bankruptcy Workshop 5:30 p.m., Branigan Library, Las Cruces

January27 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

Notices ................................................................................................................................................................62010 State Bar Budget Disclosure ..............................................................................................................7Disclosure of Professional Liability Insurance ........................................................................................8EAJ Holds 2nd Annual Justice for All Ball: Indiana Jones, Vanilla Pop, and Cherries Jubilee Made It a Ball, by Dorma Seago ..............................................................................................................92009 Celebrate Pro Bono Week: Pro Bono Lawyers Make a Huge Difference, by Nita Taylor ... 11Roehl Announces 2009 Circle of Honor Inductees, by Jerrald J. Roehl ........................................... 13How to Develop a Basic Budget, Part 4, by Donald D. Becker .......................................................... 14Legal Education Calendar ......................................................................................................................... 15Writs of Certiorari ......................................................................................................................................... 17List of Court of Appeals’ Opinions ........................................................................................................... 19Recent Rule-Making Activity ..................................................................................................................... 20Opinions


2009-NMSC-050, No. 30,657: State v. Nick R. ............................................................................. 23

2009-NMSC-051, No. 31,455: State v. Correa ............................................................................. 30


2009-NMCA-122, No. 29,239: Dickens v. Laurel Healthcare ................................................. 36

2009-NMCA-123, No. 27,332: Rael v. Page .................................................................................. 38

2009-NMCA-124, No. 28,419: State v. Jacquez .......................................................................... 42

Advertising ..................................................................................................................................................... 44

With respect to the courts and other tribunals:

I will be punctual for court hearings, conferences and depositions.

Professionalism Tip

Officers, Board of Bar Commissioners Henry A. Alaniz, President Stephen S. Shanor, President-Elect Jessica A. Pérez, Vice President Hans William Voss, Secretary-Treasurer Craig A. Orraj, Immediate-Past President

Board of Editors Mark A. Glenn, Chair Joan Marsan Janet Blair Kathryn Joy Morrow Paul A. Bleicher Steven K. Sanders Joel McElroy Carson Stacey E. Scherer Danny W. Jarrett Elizabeth Staley

State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago (505)797-6030•[email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri (505)797-6058•[email protected] Pressman Brian Sanchez Production Assistant Pam Zimmer Press Shop Assistant Michael Rizzo

©2009, 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

November 30, 2009, Vol. 48, No. 48

Cover Art: Susan Weeks is an inactive attorney-turned watercolorist. Originally from Tennessee, she came to New Mexico to work as a librarian at the UNM School of Law Library. Her watercolors, painted in a hyper-realistic style, are of subjects that often come from her travels. Her work can be seen on her Web site at www.susanweeks.com and at Patrician Design.To see the cover art in its original color, visit www.nmbar.org and click on Attorneys/Members/Bar Bulletin.







http://www.susanweeks.com



noTiCes

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 For Years May be Retrieved Through lst Judicial District Court Exhibits in criminal, civil, domestic cases 1981–1992 January 1, 2010 (505) 827-4687 Relations, children’s court cases9th Judicial District Court Evidence and exhibits including poster boards (575) 742-7527 filed in the following case types: Civil 2005–2008 January 15, 2010 Competency/Mental Health 1992–2008 January 15, 2010 Adoption; Sequestered Incapacitated (SI) 1991–2008 January 15, 2010 Probate 1978–2008 January 15, 2010 Domestic 1980–2008 January 15, 2010 Criminal 1950–2008 January 15, 2010 Tapes filed in criminal, civil, children’s court, domestic, competency/mental health, adoption and probate cases 1970–2008 January 15, 201010th Judicial District Court Tapes filed in the following case types:(575) 461-2764 Criminal 1993–2001 January 25, 2010 Juvenile youthful offender 2000–2001 January 25, 2010 Guardianships/Conservatorships; Abuse/Neglect 1996–2001 January 25, 2010 Domestic 1988–1991 January 25, 2010

CourT newsN.M. Supreme CourtCommission Vacancies Two vacancies exist on the New Mexico Commission on Access to Justice, a statewide body dedicated to expanding and improving civil legal assistance to New Mexicans living in poverty. The commission’s goals include expanding resources, increasing public awareness through communication and message development, encouraging more pro bono work by attorneys, and improv-ing training and technology. To volunteer to serve on this commission, send a letter of interest and/or resume to Kathleen Jo Gibson, Chief Clerk, PO Box 848, Santa Fe, NM 87504-0848. Deadline for letters/resumes is Dec. 2.

Compilation CommissionMeeting Notice The New Mexico Compilation Commis-sion meets at 9 a.m., Dec. 8, in the Supreme Court Building, Room 208, Santa Fe.

Proposed New Rules of Civil, Criminal and Appellate Procedure for the Inspection and Sealing of Court Records The Joint Committee on Rules for Public Inspection and Sealing of Court Records has recommended proposed amendments to the Rules of Civil, Criminal and Ap-pellate Procedure for the Supreme Court’s consideration. To comment on the proposed amendments before they are submitted to the Court for final consideration, submit a comment electronically through the Supreme Court’s website at http://nmsu-premecourt.nmcourts.gov/ or send written comments to:

Kathleen J. Gibson, ClerkNew Mexico Supreme CourtPO Box 848Santa Fe, NM 87504-0848

Comments must be received on or before Dec. 7 to be considered by the Court. Note that any submitted comments may be posted on the Supreme Court’s website for public viewing. For reference, see the Nov. 16 (Vol. 48, No. 46) Bar Bulletin.

N.M. Court of AppealsMove to New Albuquerque Office Building On Dec. 1–2, the Albuquerque office of the New Mexico Court of Appeals will be closed in order to complete the move into its new building, The Court of Appeals Pamela B. Minzner Law Center located at 2211 Tucker N.E., Albuquerque. The office will reopen for business Dec. 3. The Santa Fe office will remain open on both days.

First Judicial District CourtBrown-Bag Lunch Meeting A brown-bag lunch meeting will be held at noon, Dec. 8, in the courtroom of Judge Michael E. Vigil. Issues and topics for discus-sion may be submitted to Sally or Kim in the Criminal Division.

U.S. District Court, District of New MexicoDeadline Calculation Rules Change Effective Dec. 1, the Federal Rules for deadlines and how they are computed will change. Currently, a deadline set for 10

http://nmsu-premecourt.nmcourts.gov




www.nmbar.org

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or fewer days is computed by excluding weekends and holidays. With the new rules, all deadlines will be calculated using calendar days only. Three days for service will continue to be added. For more information, visit the Court’s website at www.nmcourt.fed.us.

Holiday Court Closure The U. S. District Court for the District of New Mexico will be closed Dec. 24. Visit the Court’s website at www.nmcourt.fed.us for additional information.

sTaTe bar newsAttorney Support Group • Afternoon groups meet regularly on

the first Monday of the month: Dec. 7, 5:30 p.m. • Morning groups meet regularly on

the third Monday of the month: Dec. 21, 7:30 a.m.

Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, (505) 242-6845.

Board of EditorsBoard Position Vacancies Three attorney positions and one non-attorney position will exist on the Board of Editors at the end of 2009. All positions are two-year terms from Jan. 1, 2010 to Dec. 31, 2011. The Board of Editors reviews and approves articles and letters submitted for publication in the Bar Bulletin and the New Mexico Lawyer. Applicants should have previous publishing/editing experience, be available to review articles regularly via e-mail, provide quick response, and attend quarterly board meetings in person or by teleconference. E-mail resumes by Nov. 30 to Editor Dorma Seago, [email protected]. Board members are appointed by the State Bar president.

Committee on Women and the Legal ProfessionHoliday Reception The Committee on Women and the Legal Profession invites members of the State Bar to a holiday reception from 6 to 8 p.m., Dec. 3, at the Sheraton Uptown Hotel, 2600 Louisiana Blvd. N.E., Albu-querque. The reception will celebrate the committee’s achievements over the past year

and the 2009 Justice Pamela B. Minzner Outstanding Advocacy for Women Award will be presented to attorney Jennifer Lan-dau. Hors d’oeuvres will be provided and a cash bar will be available. To R.S.VP., e-mail Patty Galindo, [email protected].

International and Immigration Law SectionCLE and Annual Meeting The International and Immigration Law Section will present How to Represent Immigrants Pro Bono: Considerations for the Multicultural Client (1.0 professionalism CLE credit) Dec. 16 at the State Bar Center. Christina Rosado-Maher, Rebecca Kitson, and Iris Calderon will be the featured speak-ers. Register online at www.nmbarcle.org or fax to (505) 797-6071. The section’s annual meeting will immediately follow the CLE.

NREEL SectionWinter CLE Program and Annual Meeting The Winter CLE Program of the Natural Resources, Energy and Environmental Law Section is Dec. 18 at the State Bar Center in Albuquerque. Energy Production in New Mexico—Developments, Liability and Damages (4.5 general, 1.0 ethics, and 1.0 professionalism CLE credits) will feature outstanding speakers addressing issues such as developments, liability and damages; various case law developments, regulatory initiatives, and trends; ethics questions fac-ing section members; and going beyond what regulators require. Lunch will be provided during which the NREEL annual business meeting will be conducted. Register online at www.nmbarcle.org or fax to (505) 797-6071.

Paralegal Division4th Annual Paralegal Institute Join the Paralegal Division for the 4th Annual Paralegal Institute (5.0 general and 1.0 ethics CLE credits), 8–4 p.m., Dec. 11, at the State Bar Center. Topics will include ethics, PowerPoint for trial, medical records and HIPAA, technology tips, fact-finding investigation tips and techniques, collection of judgments, identity theft issues, and structured settlements. The program is also available via live webcast. Register for the webcast in advance using code “PARA09.” See the CLE-at-a-Glance insert in the Nov. 23 (Vol. 48, No. 47) Bar Bulletin) for more information.

The Board of Bar Commissioners has approved the budget for calendar year 2010. The document is available in its entirety on the State Bar’s website at www.nmbar.org. To obtain a printed copy, call (505) 797-6035 or (800) 876-6227. Submit written challenges on or before Dec. 9, 2009 to:

Madonna Vandeventer, Director Finance and Human Resources State Bar of New Mexico PO Box 92860 Albuquerque, NM 87199

Challenges may also be delivered in person to the State Bar, 5121 Masthead NE, Albuquerque, NM, or faxed to (505) 797-6019 before 5 p.m. Dec. 10. A form for which challenges may be used appears on the last page of the document.

2010 State bar budget diScloSure



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www.nmbar.org

The Lawyers Professional Liability and Insurance Committee has assembled informa-tion to assist members regarding compliance with the amended Rule 16-104 NMRA of the Rules of Professional Conduct regarding disclosure of professional liability insurance.

Visit the committee’s website at http://www.nmbar.org/AboutSBNM/Committees/LPL/LPL.html for information on the new disclosure requirements, questions and answers, and lists of brokers and carriers. Also available is a helpful article, What At-torneys Need to Know About Professional Liability Insurance.

DisClosure of Professional liabiliTy insuranCe: rule 16-104

STATE BAR OF NEW MEXICO

Young Lawyers DivisionHoliday Reception The Young Lawyers Division cordially invites the wonderful attorney and paralegal program volunteers to a holiday reception to recognize their generous contributions to YLD community service projects over the years. The reception will be from 5:30 to 7:30 p.m., Dec. 11, at Zinc Wine Bar Bistro, 3009 Central Ave., Albuquerque. In the spirit of the holiday season, each guest is invited to bring one unwrapped gift for a child 12 years and under for Toys for Tots. R.S.V.P. by Dec. 8 to Martha Chicoski, [email protected].

oTher barsAlbuquerque Bar AssociationAnnual Meeting Luncheon The Albuquerque Bar Association’s Annual Meeting Luncheon is at noon, Dec. 1, at the Embassy Suites Hotel, 1000 Woodward Place, NE, Albuquerque. Judge Clay Campbell will be recognized as the Outstanding Judge of the Year, Robert M. White as Outstanding Lawyer of the Year, and Charlotte Mary Toulouse as Volunteer Lawyer of the Year. The CLE (1.0 professionalism CLE

credit) will immediately follow the luncheon from 1:15 to 2:15 p.m. Peter Pierotti will present Professionalism 2009. Lunch only: $25 members/$35 non-members with reservations; lunch and CLE: $55 members/$75 non-members with reservations; CLE only: $30 members/$40 non-members. Register for lunch by noon, Nov. 30. To register: 1. log on to www.abqbar.com; 2. e-mail [email protected]; 3. call (505) 842-1151 or (505) 243-

2615; 4. fax (505) 842-0287; or 5. mail to PO Box 40, Albuquerque,

NM 87103.

N.M. Criminal Defense Lawyers AssociationEnd-of-Year CLE Program With a focus on managing stress and its effects, supporting colleagues in crisis, exploring program alternatives, debating the use of drug and mental health courts, and more, the New Mexico Criminal Defense Lawyers Association offers its end-of-year Professionalism, Ethics and More CLE Dec. 4 in Albuquerque and Dec. 11 in Las Cruces. Speakers include Richard Winterbottom, Jacqueline Robins, Rory Rank, Ray Twohig, Briggs Cheney and Brian Pori. For more

information visit www.nmcdla.org, e-mail [email protected] or call (505) 992-0050.

N.M. Defense Lawyers AssociationCLE Opportunity The New Mexico Defense Lawyers As-sociation hosts 2009 Annual Civil Rights Law Update (4.5 general, 1.0 ethics, and 1.0 professionalism CLE credits) at 8 a.m., Dec. 11, at the Jewish Community Center in Albuquerque. The featured speaker is Professor Sheldon Nahmod. Contact DLA at (505) 797-6021 or www.nmdla.org.

N.M. Hispanic Bar AssociationHoliday Fundraiser The New Mexico Hispanic Bar Associa-tion’s 9th Annual Holiday Fundraiser is at 6 p.m., Dec. 4, at the National Hispanic Cultural Center. A reverse raffle will offer $6,000 in prizes. E-mail [email protected] for tickers ($100).

oTher newsWorkers’ Compensation AdministrationPending Closures Governor Richardson signed an Execu-tive Order that sets five furlough days for state employees during the remainder of fis-cal year 2010. As an executive agency under the direct control of the governor, the WCA is not exempt from this requirement. The closures have been scheduled to minimize disruption to WCA operations and service to the community by scheduling them in conjunction with long weekend holidays. For planning and scheduling purposes, the WCA is tentatively scheduled for closure during the following periods:

Dec. 24–Dec. 27• Dec. 31–Jan. 3, 2010• Jan. 15, 2010–Jan. 18, 2010• April 2, 2010–April 4, 2010• May 28, 2010–May 31, 2010•

Confirmation of these closures will be made in mid-December with notification of any changes at that time. Direct questions to Van Cravens, (505) 841-6004 or [email protected].

sPeCial TribuTe To JusTiCe Gene franChinisubmissions inviTeD

In the near future, the State Bar will publish a special issue of the Bar Bulletin in tribute to the late Justice Gene Franchini. We invite participation from his colleagues, former students, and others who knew and worked with him. To participate, submit your remembrances, personal tributes, and anecdotes to Editor Dorma Seago, [email protected]. Pictures are also welcome. For further information, call (505) 797-6030. Deadline for submissions is Dec. 4.

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The McGinn Law Firm bid $1,010 and Randi McGinn made sure she got a picture of the item—a pecan pie. Top bidders and lucky members of the Young Lawyers Division threw in $1,110 and

won the top prize—flaming cherries jubilee prepared by Joe Conte. The natural instincts of a bunch of competitive lawyers, the goal of raising money for Equal Access to Justice and, well, just the fun of it, made the “Dessert Dash” at the 2nd Annual Justice for All Ball a huge success. Tables bid against each other for cakes—including an Indiana Jones cake complete with whip— torts, pies, cup cakes, and chocolate, strawberries and whipped cream galore. All together, the dessert auction raised $8,640 for Equal Access to Justice. “Kate Mulqueen’s pie was worth every penny to help provide legal services for the disadvantaged,” said McGinn. The ball was held Nov. 14 at the Embassy Suites in Albuquerque to raise money for EAJ and to recognize outstanding individuals whose work ensures justice for all in New Mexico. The recipients of the 2009 Pamela B. Minzner Equal Access to Justice Award were John D. Robb, partner in the Rodey Law Firm; Albert W. Schimmel of the Schimmel Law office; and the Rodey Law Firm. Robb served as chair of the ABA standing committee on legal aid for the indigent and headed the New Mexico Christian Legal Aid organization. He helped to start legal aid efforts in New Mexico and has been a loyal and generous supporter of EAJ. “I’m speechless,” Robb said. “What a great honor to be recognized by my peers.” Schimmel has amassed countless pro bono hours helping New Mexicans with bankruptcy and other issues. He encouraged all to give, “whether it be of money or of time.” The Rodey Law Firm has supported EAJ for 21 years and Rodey attorneys Kip Purcell and Ed Ricco serve on the EAJ board. The firm is the largest financial contributor to legal aid in New Mexico. Chuck Vigil accepted the award for the firm.

EAJ Holds 2nd AnnuAl JusticE for All BAll

indiAnA JonEs, VAnillA PoP, And cHErriEs JuBilEE MAdE it A BAllby Dorma Seago

(From left) Albert W. Schimmel, John D. Robb, and the Rodey Law Firm (represented by Chuck Vigil) are the

recipients of the 2009 Pamela B. Minzner Equal Access to Justice Award.

Justice Charles Daniels shows off the $1,010 pie the McGinn Law Firm

won in the “Dessert Dash.”

Judge Nan Nash and Judge Clay Campbell check out

the Indiana Jones cake.

Robert Lara and Letitia Delgado tally the bids in the “Dessert Dash.”

Sireesha Manne and Gail Evans of the Center on Law and Poverty get

ready to enjoy their cake.

Deana Bennett and husband Dale Hendrickson dance to the music of Vanilla Pop.

Mr. and Mrs. John Robb are one of the first on the dance floor.

Ed Perera and Brent Moore Brad and Nann Winter Judge Alan Malott and Richard Valle

(continued on next page)


KRQE anchor and reporter Michael Herzenberg was on hand to interview a client who recounted her story of domestic abuse and the assistance she received from New Mexico Legal Aid. EAJ Coordinator Kate Mulqueen and Young Lawyers Division Chair Martha Chicoski co-chaired this year’s event. “It’s a total team effort of all the volunteers and YLD members. I’ve already had meetings for next year,” said Mulqueen. “It can be exhausting and so much work, but I always have an absolutely wonder-ful time. I just appreciate all those who work so hard to make it happen.” In the end, 360 attended the ball, which raised almost $19,000 for EAJ. “I am thrilled by the turnout as well as the generous support shown for civil legal services by our legal community,” Chicoski agreed. “It was wonderful to see how the planning committee’s hard work resulted in a fun and memorable evening. Many thanks to all of our guests and sponsors, as well as Kate Mulqueen, Robert Lara, and Michael Herzenberg, without whom the evening would not have been possible.” After the speeches, dinner, and presentations, the Vanilla Pop band provided the music for dancing. Robb and his wife of 63 years were the first on the floor. “I’ve just had knee replacement surgery,” he told the crowd. “Pray for me.” And according to the generous winners, the pecan pie and the cherries jubilee were fabulous.

KRQE anchor and reporter Michael Herzenberg served as master of ceremonies. Martha Chicoski, chair of the Young Lawyer’s Division, co-chaired the event.

Chuck Vigil (left) accepted the Pamela B. Minzner Equal Access to Justice Award on behalf of the Rodey Law Firm. Kip Purcell (right) is vice president of the EAJ board.

Jay Mason is past president of the EAJ board. Kate Mulqueen is the EAJ coor-dinator and co-chair of the ball.

Kim Posich is the executive director of the Center on Law and Poverty, one of the four recipients of EAJ funds. Other recipients are New Mexico Legal Aid, Law Access New Mexico, and DNA–People’s Legal Services.

EAJ Ball continued

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Women’s – Desert khaki with burgundy and black State Bar logo. Performance twill made with treated cotton that holds color while releasing stains in the wash. Three-quarter length sleeves, straight collar and side slits. 100% cotton. Machine wash. S-XL $38.50, XXL $44.50

CaPSDesert khaki with burgundy and black State Bar logo. Prewashed 100% cotton twill with adjustable back strap and bill that retains its shape. Machine wash. $14.50

SBNM Wear

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by Nita Taylor, Access to Justice/Pro Bono Coordinator

New Mexico attorneys jumped on board to make the first annual Celebrate Pro Bono Week a remarkable success—resulting in

hundreds of lawyers across the state contributing their time to ensure many of New Mexico’s low income population received free legal assistance for domestic violence, consumer debt, landlord tenant issues and many more. This statewide event, held October 25 through 31, was part of a coordinated national effort to showcase the great difference that pro bono law-yers make to the nation, to our great state, its system of justice, its communities and, most of all, to the clients they serve. Through the oversight of New Mexico’s Access to Jus-tice Commission, co-chaired by Justice Petra Jimenez Maes and Sarah Singleton, each of New Mexico’s judicial districts had already formed pro bono committees that tailored their programs to best address both the type of legal needs and the type of assistance their local attorneys are able to give. These commit-tees focused on developing unique opportunities for lawyers and low income population in need of legal assistance during pro bono week. Sixteen local pro bono committees representing all thirteen judicial districts planned and implemented public events across the state with one or more Supreme Court justices or Court of Appeals judges visiting each location.

Highlights of the Week

Free public legal information seminars and one-on-one consultations were provided in Santa Fe, Albuquerque, Las Cruces, Las Vegas, Roswell, Carlsbad, Hobbs, Silver City, Socorro, Portales, Gallup, Ruidoso and Alamogordo. The 1st, 2nd, 3rd and 6th Judicial Districts hosted large multi-topic legal fairs that provided general

information to a number of attendees and private consultations to individuals throughout the event. While the tally is not final, Judge Clay Campbell, chair of the 2nd Judicial District, reports that during the two Law-La-Palooza legal fairs nearly 200 low-income customers were served by 33 attorneys, 12 legal services providers, 30 or more UNM law students and others. (See “It Was a Law-La-Palooza” by Judge Clay Campbell in the Nov.

16 [Vol. 48. No. 46] Bar Bulletin.) Judge Fernando Macias, co-chair of the 3rd Judicial District, also reports overwhelming success during the Las Cruces Free Legal Help Day, with 25 one-hour seminars presented by 23 attorneys or judges and 147 private consultations given by 32 volunteer attorneys. As a result, 300 persons left the court that day with information and assistance about their legal problems. The Las Cruces team estimates the legal help provided would equate to an estimated $40,400 of billable hours.

Pro Bono lAwyErs MAkE A HugE diffErEncE

cElEBrAtE Pro Bono wEEk–2009

Judge Eugenio Mathis, chair of the 4th Judicial District

Pro Bono Committee.

Fred Tharp, Portales

Bobbie Franklin, Gallup

Mike Lilley directs traffic for 300 clients and 55 volunteers at the Celebrate Pro Bono Week in Las Cruces.

a feW of the 335 attorneyS recognized for Pro bono effortS

Bill Brogan, Alamogordo

(continued on next page)


Justice Charles W. Daniels attended a recognition luncheon in Portales. Judge Linda Vanzi joined the teams in Santa Fe and Farming-ton. Judge Robert Robles cel-ebrated in Albuquerque and Las Cruces. Judge Tim Garcia traveled to Tucumcari and Las Cruces. These gifts of time from the es-teemed members of New Mexico’s highest courts firmly define their level of support in developing and maintaining strong pro bono programs that will enable attorneys to participate in this critical effort. Across the state, hundreds of attorneys, plus other partners such as paralegals, law students, members of the legal service organiza-tions and judges, helped in providing free legal help to many of New Mexico’s low income population. A most sincere thank you goes to every person who contributed to this amazing celebration. Our continued goal is to capitalize on the energy and momentum generated in each of our communities to keep the Celebration of Pro Bono going all year.

Two continuing legal education courses, each generating one professionalism credit for $1, were developed specifically for the week. Sarah Singleton developed and traveled the state to present Professionalism Presentation in Honor of Pro Bono Week to over 230 attorneys, while Judge Drew Tatum presented the same program to attorneys in the 9th Judicial District. Janay Haas of New Mexico Legal Aid developed and presented Pro Bono on Purpose to 67 attor-neys in the 5th Judicial District. Sponsored by the State Bar of New Mexico and the Chaves County Bar respectively, these programs were presented to a collective 320 attorneys in Las Cruces, Farmington, Gallup, Las Vegas, Portales, Santa Fe, Taos, Carlsbad, Roswell and Hobbs. Pro Bono Attorney Recognition. New Mexico Supreme Court justices and Court of Appeals judges traveled the state to celebrate with pro bono attorneys. In recognition of attorney pro bono efforts, over 335 Supreme Court Certificates of Appreciation were awarded to those attorneys identified by the local pro bono committees as having gone above and beyond the call of duty. “Access to Justice is a fundamental and essential right in a demo-cratic society,” said Chief Justice Edward L. Chávez who participated in pro bono celebrations in Las Vegas and Taos. “With over 20 per cent of New Mexicans qualifying for legal services and the poverty rate on the rise during this recession, pro bono services are critical to providing low income individuals the representation they require to gain access to justice and protect their rights and liberties. Over half of New Mexico attorneys reported donating a total of nearly 250,000 pro bono hours in 2008. We applaud those lawyers who, by donating their time, have made a real difference in the lives of many New Mexicans. I encourage each lawyer in New Mexico to participate year-round in pro bono assistance. Our republic cannot be a complete democracy if its poorest citizens are effectively denied access to its system of justice.” Justice Maes attended ceremonies in Roswell, Carlsbad and Hobbs. Justice Richard C. Bosson joined the festivities in Grants and Gallup. Justice Patricio M. Serna offered remarks to attorneys in Socorro, Silver City, Las Cruces and Alamogordo.

(Top) Beth Lindsey receives a Certificate of Appreciation from Justice Charles Daniels in Portales.(Right) Judge Fernando Macias, co-chair of the 3rd Judicial District Pro Bono Committee, recognizes pro bono at-torneys.

Sarah Singleton presents a CLE program, Professionalism Presentation in Honor of Pro Bono Week, to attorneys in Farmington.

Judge Timothy Garcia recognizes Katherine Blackett in Las Cruces.

Pro Bono Week continued


roehl announceS 2009 circle of honor inducteeSBy Jerrald J. Roehl

The Roehl Circle of Honor for Trial Lawyers inducted Jackson Akin, Stephen Durkovich, Don McCormick (posthumously) and Norman Thayer as new members at a recognition ceremony at the State Bar Center Nov. 19. Jackson Akin, now retired, enjoyed a stellar career represent-ing large companies in a variety of lawsuits, including the Clovis botulism cases. He is a founding partner of Rodey, Dickason, Sloan, Akin & Robb, one of the state’s largest law firms. Stephen Durkovich specializes in medical malpractice cases and achieved one of the state’s largest jury verdicts ever in a lawsuit against a Roswell hospital last year. Durkovich practices in Santa Fe. Don McCormick practiced law for over 40 years in Carlsbad where he built the leading law firm in that part of the state and was widely admired for his professionalism. McCormick died in 1986. Norman Thayer has been involved in several significant lawsuits, mainly involving commercial and business disputes, as well as a civil rights damages suit against the National Guard for attacks on innocent bystanders at the UNM campus in 1970. Thayer is the senior partner of Sutin, Thayer & Browne in Albuquerque. The Circle of Honor recognizes those trial lawyers in New Mexico who are, or have been, the very best as proven over many years. Previous inductees are Frank Allen, Harry Bigbee, Bill Carpenter, Richard Civerolo, Gene Gallegos, Richard Gerding, Bruce Hall, Ken Harrigan, George Harris, Harold Hensley, Bryan Johnson, Russell Jones, Henry Kiker, Bill Kitts, Ross Malone, Bill Marchiondo, Ranne Miller, Seth Montgomery, Russell Moore, J.W. Neal, Melvin Neal, Arturo Ortega, Richard Ransom, James Ritchie, Gill Shaffer, John F. Simms, William Sloan, Joseph Smith, Bill Snead, Lowell Stout and Matias Zamora. The Roehl Circle of Honor for Trial Lawyers was established in 1998 at the State Bar Center by Jerrald J. Roehl in memory of his father, Joseph E. Roehl, a prominent trial lawyer.

Roehl Circle of Honor for Trial Lawyers 2009 inductees: Norman Thayer, Jackson Akin, Don McCormick (daughter Margo McCormick, holding his picture, accepted for her father), and Stephen Durkovich.

Seats up to 160 • Moderately priced by the day • Catering available • Beautiful setting

Hold your conference, seminar or training at the State Bar Center

For more information, site visits or reservations contact Kris Becker at 505.797.6038 or [email protected]

Multi-Media auditoriuM



Marketing Costs: Advertising is only one part of a firm’s

marketing plan. It tends to be a particular focal point for criticism of the profession. It’s a place where beginning attorneys are tempted to throw away a lot of money. As a starting point, be mindful of the deadline for being listed in the local yellow pages, but go very slowly in paying more than necessary for a most basic listing which indicates the types of clients you’re looking to attract—divorce clients, bankruptcy clients, wills and estate planning, criminal defense, personal injury, etc. Start with the idea that you want someone to be able to use the yellow pages to find a specific area of practice. Beyond that, do a careful analysis of the cost-benefit. How many more clients will need to be acquired from the advertisement to justify the costs? Does the firm have the additional time and resources available to create a profit from handling resulting cases? The answers might be different for different types of practices. The business plan will be the primary focal point, while the budget will be a constraining factor and reality check. Marketing has always been part of the practice of law. Your best advertisement will be the recommendation from satisfied clients. Your next best will be the recommendations from your peers and other professionals. Other standard ways of gathering and retaining quality clients include participation in various interest groups and activities, where others get to know you— character counts. The American Bar Association has a substantial amount of literature in this area, and the State Bar website and Continuing Legal Education programs provide assistance.

Equipment: The acquisition and maintenance of equipment can be a serious budgeting challenge because it goes beyond the basic purchase (which may or may not last more than one year) and includes such concerns as maintenance, insurance, training, and accessories.

Technology brings its own issues, and one sometimes finds a prob-lem where a software person blames the hardware, and the hardware blames the software. You can also have a problem where there is ineffective or nonexistent support and/or warranty service.

There can be a choice between ownership and leasing. In New Mexico, the leasing form requires the lessee to pay all incurred taxes, and the New Mexico gross receipts tax can make the true costs very expensive. Also, the benefit of a small monthly payment over a period of years may be offset by the inability to prepay to reduce the effective finance charge and the inflexibility in making desirable changes. In addition, one will sometimes find that the maintenance/repair warranties do not extend to the end term of the contract so that if something happens, you could be required to use their repair services—and prices—in order to properly maintain the lease equip-ment, a particular problem with motor vehicle leases.

Professional Services: A variety of external professional services might be very important for a law office. This could be simple bookkeeping or certified public accountant service for establishing and maintaining financial records and filing required tax reports and returns. It’s an area where more is usually more helpful, but costly. Judicious use of professionals will be very helpful. Be prepared to ask questions so that you learn how to benefit from, and better use, these services.

Overhead: A wide variety of items fall under the general category of overhead—expenses that will be incurred but don’t justify specific tracking. Think in terms of postage, pens, paper, etc. Once an item becomes significant enough to be tracked, it should be taken out of the overhead category and monitored. Look for ways to reduce or control the cost; e.g., high-priced expendable items and/or theft control.

Interest Expense and Finance Charges: Unless its nominal, the cost of money or buying things over time (i.e., interest or finance charges) should be monitored separately from the direct expense. This encourages more attention to the timing of purchases and affords a way to reduce costs and increase profits. Having access to credit is important in maintaining the work flow and avoiding business disruptions; using borrowed funds tends to be very costly (notwithstanding all the special offers).

Resource: A sample form for creating a budget can be found on the Law Practice Management Committee’s website at www.nmbar.org. There you will also find a large amount of information to assist attorneys and their staffs. Additionally, attorneys may submit ques-tions under the “Frequently Asked Question” section which will be answered on the web page.

hoW to develoP a baSic budget, Part 4

Submit

announcements

for publication in

the Bar Bulletin to

[email protected]

by 5 p.m., Monday

the week prior to

publication.

by Donald D. Becker

http://www.nmbar



legal education

G = General E = Ethics

P = Professionalism VR = Video Replay Programs have various sponsors; contact appropriate sponsor for more information.

novemBer

30 Should Corporate Counsel Be Corporate Conscience?

Teleconference TRT, Inc. 2.0 E 1-800-672-6253 www.trtcle.com

decemBer

1 2009 Estate Planning and Tax Symposium

Day 1–Estate Planning VR, State Bar Center Center for Legal Education of NMSBF 6.0 G (505) 797-6020 www.nmbarcle.org

1 Digital Media in the Courtroom VR, State Bar Center Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

1 Employment Law: The Basics and New Developments

VR, State Bar Center Center for Legal Education of NMSBF 6.1 G (505) 797-6020 www.nmbarcle.org

1 Inter-Species Mergers: LLCs, C Corps, S Corps and More

Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

1 Medicare Set Asides VR, State Bar Center Center for Legal Education of NMSBF 2.7 G (505) 797-6020 www.nmbarcle.org

1 When a Prosecutor Withholds Exculpatory Evidence

Teleconference TRT, Inc. 2.0 E

1-800-672-6253 www.trtcle.com

2 2009 Estate Planning and Tax Symposium

Day 2–Tax Symposium VR, State Bar Center Center for Legal Education of NMSBF 7.1 G (505) 797-6020 www.nmbarcle.org

2 6th Annual Elder Law Seminar VR, State Bar Center Center for Legal Education of NMSBF 2.9 G, 1.0 P (505) 797-6020 www.nmbarcle.org

2 Basics of Family Law VR, State Bar Center Center for Legal Education of NMSBF 6.5 G (505) 797-6020 www.nmbarcle.org

2 Lawyer Exposure in Public Offerings


3 Employment Law A to Z Albuquerque Lorman Education 6.6 G 1-866-352-9539 www.lorman.com

3 Forensic Accounting 101 VR, State Bar Center Center for Legal Education of NMSBF 3.0 G (505) 797-6020 www.nmbarcle.org

3 Fundamentals of Employment Law

Albuquerque Sterling Education Services 6.9 G (715) 855-0495 www.sterlingeducation.com

3 Nuts and Bolts of Gift Taxation Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

3 Should Corporate Counsel Be Corporate Conscience?


3 Workers’ Compensation Law and the Immigrant Worker


4 2009 Real Property Institute State Bar Center Center for Legal Education of NMSBF 6.0 G, 1.0 E (505) 797-6020 www.nmbarcle.org 4 Guardianship and

Conservatorship in New Mexico Las Cruces Medical Educational Services PDN 4.2 G, 1.0 E, 1.0 P (715) 836-9900

4 Legal Ethics of Representing Unpopular Causes and Clients


http://www.trtcle.com











http://www.lorman.com


http://www.sterlingeducation.com







legal education www.nmbar.org

4 Professionalism, Ethics, and More Albuquerque New Mexico Criminal Defense

Lawyers Association 4.0 G, 1.0 E, 1.0 P (505) 992-0050, [email protected] or www.nmcdla.org

7 2009 Business Law Institute VR, State Bar Center Center for Legal Education of NMSBF 5.5 G, 1.0 E (505) 797-6020 www.nmbarcle.org

7 An Attorney’s Guide to Good Lawyering for People With Disabilities

VR, State Bar Center Center for Legal Education of NMSBF 1.0 P (505) 797-6020 www.nmbarcle.org

7 Digital Media in the Courtroom VR, State Bar Center Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

7 Drafting Documents That Any Client Might Appreciate


7 Ethics Risks Practicing Law VR, State Bar Center Center for Legal Education of NMSBF 1.0 E (505) 797-6020 www.nmbarcle.org

7 Immigrant Rights in New Mexico VR, State Bar Center Center for Legal Education of NMSBF 5.5 G, 1.0 E (505) 797-6020 www.nmbarcle.org

7 LLCs: From Formation to Special Uses

Albuquerque NBI, Inc. 6.6 G 1-800-930-6182 www.nbi-sems.com

7 Malpractice in an Uncertain Economy


7 Need to Tame or Train the Billable Beast?


8 2009 Bridge the Gap VR, State Bar Center Center for Legal Education of NMSBF 6.0 G, 1.0 E, 1.0 P (505) 797-6020 www.nmbarcle.org

8 24th Annual Bankruptcy Year-in-Review

VR, State Bar Center Center for Legal Education of NMSBF 6.0 G, 1.0 P (505) 797-6020 www.nmbarcle.org

8 Art of Representing Children Albuquerque NBI, Inc. 5.0 G, 1.0 E (800) 930-6182 www.nbi-sems.com

8 Common Options for Small, Medium, Large Estates

Teleconference Cannon Financial Institute 1.5 G (706) 353-3346

8 Compensation Issues in LLCs Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

8 Road and Access Law VR, State Bar Center Center for Legal Education of NMSBF 3.0 G (505) 797-6020 www.nmbarcle.org

8 Subordinate Lawyers: Sit, Stay, Roll Over No More Telephone Seminar TRT, Inc. 1.0 E, 1.0 P 1-800-672-6253 www.trtcle.com

9 Cybersleuth’s Guide to the Internet

State Bar Center Center for Legal Education of

NMSBF 6.0 G (505) 797-6020 www.nmbarcle.org 9 Ethics of Billing Santa Fe Paralegal Division, Santa Fe 1.0 E (505) 986-2502

9 Handling Real Estate Transactions With Confidence

Albuquerque NBI, Inc. 5.6 G, 1.0 E (800) 930-6182 www.nbi-sems.com

10 How to Do Your First Personal Injury Case and a Defense Perspective

State Bar Center Center for Legal Education of NMSBF 4.0 G, 1.0 E, 1.0 P (505) 797-6020 www.nmbarcle.org

10 Post-Mortem Estate Planning Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

11 2009 Annual Civil Rights Law Update

Albuquerque N.M. Defense Lawyers Association 4.5 G, 1.0 E, and 1.0 P (505) 797-6021 www.nmdla.org.

11 4th Annual Paralegal Institute State Bar Center Center for Legal Education of NMSBF 5.0 G, 1.0 E (505) 797-6020 www.nmbarcle.org



http://www.nmcdla.org







http://www.nbi-sems.com













http://www.nmdla.org



Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

effeCTive november 30, 2009

Writs of certiorari

as updated By the clerk of the neW mexico supreme court

petitions for Writ of certiorari filed and pending:Date Petition Filed

NO. 32,071 State v. Wilson (COA 28,138) 11/18/09NO. 32,070 State v. Borunda (COA 28,372) 11/18/09NO. 32,069 State v. Martinez (COA 28,665) 11/17/09NO. 32,066 State v. Alderete (COA 28,325) 11/16/09NO. 32,065 Romero v. Progressive

Northwestern Ins. Co. (COA 28,720) 11/16/09NO. 32,064 Cordova v. Cordova (COA 28,208) 11/13/09NO. 32,063 Jordan v. Allstate

Insurance Co. (COA 28,638) 11/13/09NO. 32,060 Corliss v. Eastern Plains

Housing Dev. (COA 29,152) 11/12/09NO. 32,062 Thomas v. Janecka (12-501) 11/10/09NO. 32,058 State v. Emanuel B. (COA 29,594) 11/10/09NO. 32,057 State v. Herrera (COA 27,733) 11/10/09NO. 32,056 State v. Blanco (COA 27,153) 11/10/09NO. 32,053 Rosa v. State (12-501) 11/9/09 Responsefiled11/17/09NO. 32,052 State v. Alex (C)A 29,391) 11/9/09NO. 32,047 Smith v. American Pride

Homes, Inc. (COA 29,598) 11/6/09NO. 32,046 State v. Tafoya (COA 28,019) 11/5/09NO. 32,045 State v. Jim (COA 29,483) 11/5/09NO. 32,044 State v. Episcopo (COA 29,328) 11/5/09NO. 32,041 State v. Puliti (COA 29,509) 11/4/09NO. 32,037 Callahan v. NM Federation

of Teachers-TVI (COA 28,651) 11/3/09NO. 32,042 Thompson v. Hatch (12-501) 11/2/09NO. 32,040 State v. Morgan (COA 29,478) 11/2/09NO. 32,039 State v. Valencia (COA 28,140) 11/2/09NO. 32,038 State v. Reid (COA 29,172) 11/2/09NO. 32,031 State v. Woods (COA 28,289) 10/19/09NO. 32,030 State v. Quiroz (COA 29,428) 10/28/09NO. 32,028 State v. Titione (COA 28,431) 10/27/09NO. 32,027 State v. Boze (COA 29,168) 10/27/09NO. 32,026 State v. Lapietra (COA 28,431) 10/27/09NO. 32,025 State v. Nanney (COA 28,593) 10/26/09NO. 32,021 State v. Haskins (COA 26,525) 10/23/09NO. 32,020 City of Artesia v. Hackett (COA 29,592) 10/23/09NO. 32,011 State v. Jonathan D. (COA 27,552) 10/19/09 Response due 12/4/09NO. 32,003 Heltman v. Catanach (COA 28,613) 10/13/09 Response due 12/7/09 by extnNO. 31,998 Urioste v. Janecka (12-501) 10/8/09 Response due 11/30/09 by extnNO. 31,996 State v. Kavanaugh (12-501) 10/5/09NO. 31,982 Pinales v. State (12-501) 9/30/09 Responsefiled11/17/09NO. 31,980 Northwest Villages, L.L.C.

v. Martinez (COA 29,743) 9/28/09 Responsefiled10/13/09NO. 31,978 State v. Camacho (12-501) 9/28/09 Responsefiled11/18/09

NO. 31,974 Kavanaugh v. State (12-501) 9/24/09 Responsefiled11/10/09NO. 31,903 West v. Washington Tru

Solutions, L.L.C. (COA 28,443) 8/18/09

certiorari granted But not yet suBmitted to the court:

(Parties preparing briefs) Date Writ IssuedNO. 31,191 State v. Schwartz (COA 28,349) 7/21/08NO. 31,218 State v. Henley (COA 27,925) 7/25/08NO. 31,315 D’Antonio v. Garcia (COA 27,681) 10/1/08NO. 31,360 State v. Morales (COA 26,969) 11/5/08NO. 31,287 Waterhouse v. Heredia (12-501) 1/6/09NO. 31,526 State v. Phillips (COA 27,019) 2/23/09NO. 31,433 Romero v.

Philip Morris, Inc. (COA 26,993) 2/27/09NO. 31,100 Allen v. LeMaster (12-501) 3/13/09NO. 31,567 State v. Guthrie (COA 27,022) 3/24/09NO. 31,612 Ortiz v. Overland Express (COA 28,135) 4/20/09NO. 31,656 State v. Rivera (COA 25,798) 5/5/09NO. 31,686 McNeill v.

Rice Engineering (COA 29,207) 5/20/09NO. 31,717 State v. Johnson (COA 27,867) 6/17/09NO. 31,719 State v. Lara (COA 27,166) 6/17/09NO. 31,738 State v. Marlene C. (COA 28,352) 6/17/09NO. 31,723 State v. Mendez (COA 28,261) 6/23/09NO. 31,733 State v. Delgado (COA 27,192) 6/23/09NO. 31,724 Albuquerque Commons

v. City/Albuquerque (COA 24,026/24,027/24,042/24,425) 7/1/09

NO. 31,732 State v. Smile (COA 27,338) 7/1/09NO. 31,739 State v. Marquez (COA 27,971) 7/1/09NO. 31,740 State v. McCorkle (COA 29,124) 7/1/09NO. 31,743 State v. Marquez (COA 28,938) 7/1/09NO. 31,741 State v. Gardner (COA 27,234) 7/1/09NO. 31,775 State v. Warren (COA 29,147) 7/15/09NO. 31,703 State v. Nez (COA 26,811) 7/23/09NO. 31,745 State v. Jackson (COA 28,107) 7/23/09NO. 31,813 State v. Soliz (COA 28,018) 7/29/09NO. 31,750 Kilgore v. Fuji (COA 27,470) 7/30/09NO. 31,840 State v. Garcia (COA 28,465) 8/11/09NO. 31,791 State v. Atcitty (COA 27,189/27,940/27,333) 8/12/09NO. 31,854 State v. Albarez (COA 29,468) 8/18/09NO. 31,812 State v. Sena (COA 24,156) 8/20/09NO. 31,891 State v. Gonzales (COA 29,297) 9/15/09NO. 31,907 Edward C. v.

City of Albuquerque (COA 27,864) 9/15/09NO. 31,909 State v. Rudy B. (COA 27,589) 9/15/09NO. 31,917 Edward C. v.

Albq. Baseball Club (COA 27,864) 9/15/09NO. 31,922 State v. Terrazas (COA 27,613) 9/28/09NO. 31,927 State v. Sanchez (COA 28,090) 9/28/09NO. 31,928 State v. Bryant (COA 29,444) 9/28/09


Writs of certiorari http://nmsupremecourt.nmcourts.gov.

NO. 31,958 Keith v. Manorcare (COA 28,008) 10/8/09NO. 31,979 State v. Benally (COA 29,293) 11/4/09NO. 31,988 State v. Turrietta (COA 29,508) 11/4/09NO. 31,995 Herrera v. Eberline (COA 28,577) 11/4/09NO. 32,001 Oldham v. Oldham (COA 28,493) 11/4/09NO. 32,012 State v. Trujillo (COA 28,412) 11/18/09

certiorari granted and suBmitted to the court:

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

NO. 30,787 Cable v. Wells Fargo Bank (On reconsideration) (COA 26,357) 12/15/08

NO. 31,329 Kirby v. Guardian Life (COA 27,624) 2/9/09NO. 30,956 Davis v. Devon (COA 28,147/28,154) 2/9/09NO. 30,957 Ideal v.

BP America (COA 28,148/28,153) 2/9/09NO. 30,958 Smith v.

Conocophillips (COA 28,151/28,152) 2/9/09NO. 31,192 Reule Sun Corp.

v. Valles (On rehearing) (COA 27,254) 3/9/09

NO. 31,153 State v. Wyman (COA 28,237) 3/25/09NO. 31,279 Lions Gate v. D’Antonio (COA 28,668) 4/13/09NO. 31,374 Schultz v. Pojoaque

Tribal Police Dept. (COA 28,508) 5/11/09NO. 31,365 State v. Lucero (COA 27,364) 5/13/09NO. 30,766 State v. Jones (COA 27,342) 5/27/09NO. 31,325 Kersey v. Hatch (12-501) 8/10/09NO. 31,288 State v. Savedra

(COA 27,288/27,289/27,290) 8/11/09NO. 31,416 Carlsbad Hotel Associates

v. Patterson (COA 27,922) 9/14/09NO. 31,308 State v. Sosa (COA 26,863) 9/15/09NO. 31,637 Akins v. United Steel (COA 27,132) 10/13/09NO. 31,549 City of Santa Fe

v. Travelers Casualty (COA 28,944) 10/13/09

NO. 31,186 State v. Bullcoming (COA 26,413) 10/14/09NO. 31,187 State v. Aragon (COA 26,185) 10/14/09NO. 31,480 City of Aztec v. Gurule (COA 28,705) 11/9/09NO. 31,224 State v. Harrison (COA 27,224) 11/9/09NO. 30,827 State v. Sims (COA 26,590) 11/10/09NO. 31,092 State v. Mailman (COA 27,966) 11/10/09NO. 31,117 State v. Moore (COA 28,243) 11/10/09NO. 31,546 Gomez v. Chavarria

(COA 28,072/28,073) 11/30/09NO. 31,328 Garcia v. State

(On rehearing) (12-501) 11/30/09NO. 31,101 State v. Montano (COA 28,002) 11/30/09NO. 31,602 Allstate Ins. Co. v. Guest (COA 27,253) 12/14/09NO. 31,603 Guest v. Allstate Ins. Co. (COA 27,253) 12/14/09NO. 31,491 Ideal v. Burlington

Resources Oil & Gas (COA 29,025) 12/15/09NO. 31,510 State v. Smith (COA 27,704) 12/16/09

petition for Writ of certiorari denied:

NO. 32,016 State v. Holland (COA 29,337) 11/19/09NO. 32,015 State v. Castillo (COA 29,116) 11/19/09NO. 32,014 State v. Bishop-Calhoun (COA 29,422) 11/19/09NO. 32,013 State v. Rodriguez (COA 29,229) 11/19/09NO. 32,006 State v. Alvarez (COA 29,637) 11/19/09NO. 32,033 Flores v. State (12-501) 11/19/09NO. 31,924 Dominguez v. Hatch (12-501) 11/19/09NO. 31,962 Manzanares v. McDonald (12-501) 11/19/09NO. 32,048 Munoz v. Hatch (12-501) 11/19/09NO. 31,950 Progressive Casualty Ins. Co.

v. Vigil (COA 28,023/28,393) 11/19/09

Writ of certiorari Quashed:

NO. 31,430 State v. Ochoa (COA 28,175) 11/19/09

http://nmsupremecourt.nmcourts.gov


puBlished opinions

Date Opinion FiledNo.29551 2ndJudDistBernalilloLR-07-159,STATEvLSPILLMAN(affirm) 11/17/2009No. 26837 1st Jud Dist Santa Fe CR-05-66, STATE v R MYERS (reverse) 11/18/2009No.28276 9thJudDistCurryCR-06-417,STATEvDWINTON(affirm) 11/18/2009

unpuBlished opinions

No.28351 12thJudDistOteroDM-04-489,JCONWAYvLCONWAY(affirm) 11/16/2009No.28375 2ndJudDistBernalilloCV-04-8368,FYAZZIEvCHAVATRUCKING(affirm) 11/16/2009No.29672 11thJudDistSanJuanJQ-08-34-1,CYFDvELISHAS(affirm) 11/16/2009No. 29697 1st Jud Dist Rio Arriba CR-05-113, STATE v M HERRERA (dismiss) 11/16/2009No. 29764 2nd Jud Dist Bernalillo DM-00-1849, B VAN DEN BRINK v J VAN DEN BRINK (dismiss) 11/16/2009No. 29792 11th Jud Dist San Juan CR-08-1196, STATE v K KEY (reverse) 11/16/2009No.29639 11thJudDistSanJuanCR-08-757,STATEvHBEYALE(affirm) 11/17/2009No. 29706 2nd Jud Dist Bernalillo PB-06-534, M MITCHELL-CARR v J WALLACE (dismiss) 11/17/2009No.26742 2ndJudDistBernalilloCR-04-3230,STATEvKSEWELL(affirm) 11/18/2009No.29540 11thJudDistSanJuanLR-08-89,CITYOFFARMINGTONvTDICKERSON(affirm) 11/18/2009No.29600 2ndJudDistBernalilloCV-07-8315,JRAELvPRESBYTERIANHEALTH(affirm) 11/18/2009No.29549 2ndJudDistBernalilloDM-05-3567,LGOLDENvWGOLDEN(affirm) 11/19/2009No.29630 2ndJudDistBernalilloCR-07-175,STATEvJREYES(affirm) 11/19/2009No.29649 5thJudDistChavezCV-08-991,CITYOFROSWELLvJFORREST(affirm) 11/19/2009No. 29693 2nd Jud Dist Bernalillo DM-02-1727, F LOVETT v L KITTELL (dismiss) 11/19/2009No. 29696 5th Jud Dist Chaves DM-00-652, L MUSE v J MUSE (dismiss) 11/19/2009

Gina M. Maestas, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fé, NM 87504-2008 • (505) 827-4925


opinions

as updated By the clerk of the neW mexico court of appeals

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

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


Kathleen Jo Gibson, 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

To view pending• proposed rule changes visit the New Mexico Supreme Court’s Web site: http://nmsupremecourt.nmcourts.gov/

To view recently • approved rule changes, visit the New Mexico Compilation Commission’s Web site: http://www.nmcompcomm.us/


Pending ProPosed rule Changes

Comment Deadline1-079 Public inspection and sealing of

court records (Rules of Civil Procedure for the District Courts) 12/07/09

2-112 Public inspection and sealing of court records (Rules of Civil Procedure for the Magistrate Courts) 12/07/09

3-112 Public inspection and sealing of court records (Rules of Civil Procedure for the Metropolitan Courts) 12/07/09

5-123 Public inspection and sealing of court records (Rules of Criminal Procedure for the District Courts) 12/07/09

6-114 Public inspection and sealing of court records (Rules of Criminal Procedure for the Magistrate Courts) 12/07/09

7-113 Public inspection and sealing of court records (Rules of Criminal Procedure for the Metropolitan Courts) 12/07/09

8-112 Public inspection and sealing of court records (Rules of Procedure for the Municipal Courts) 12/07/09

10-166 Public inspection and sealing of court records (Children’s Court Rules and Forms) 12/07/09

12-314 Public inspection and sealing of court records (Rules of Appellate Procedure) 02/07/09

7-504 Discovery; cases within metropolitan court trial jurisdiction (Rules of Criminal Procedure for the Metropolitan Courts) 11/23/09

5-704 Death penalty; sentencing (Criminal forms) 11/16/09

5-605 Jury trial (Criminal forms) 11/16/0914-121 Individual voir dire; death penalty cases;

single jury used. (UJI Criminal) 11/16/0914-121A Individual voir dire; death penalty cases;

two juries used. (UJI Criminal) 11/16/095-302A Grand jury proceedings (Rules of Criminal

Procedure for the District Courts) 11/02/099-218 Target notice (Criminal forms) 11/02/099-219 Grand jury evidence alert letter

(Criminal forms) 11/02/091-096 Challenge of nominating petition

(Rules of Civil Procedure for the District Courts) 09/08/09

4-102 Certificateofexcusalorrecusal (Civil forms) 07/27/09

4-103 Notice of excusal (Civil forms) 07/27/094-104 Notice of recusal (Civil forms) 07/27/094-102A Certificateofexcusalorrecusal

(Civil forms) 07/27/094-103A Notice of excusal (Civil forms) 07/27/094-104A Notice of recusal (Civil forms) 07/27/09

6-701 Judgment (Rules of Criminal Procedure for the Magistrate Courts) 07/27/09

8-701 Judgment (Rules of Procedure for the Municipal Courts) 07/27/09

6-703 Appeal (Rules of Criminal Procedure for the Magistrate Courts) 07/27/09

8-703 Appeal (Rules of Procedure for the Municipal Courts) 07/27/09

2-105 Assignment and designation of judges (Rules of Civil Procedure for the Magistrate Courts) 07/27/09

6-105 Assignment and designation of judges (Rules of Criminal Procedure for the Magistrate Courts) 07/27/09

10-313.1 Representation of multiple siblings (Children’s Court) 07/20/09

10-343 Adjudicatory hearing; time limits; continuances (Children’s Court Rules) 04/17/09

reCently aPProved rule Changes sinCe release of 2009 nMra

Effective Date

rules of civil procedure for the district courts

1-016 Pretrial conferences; scheduling; management. 05/15/09

1-026 General provisions governing discovery. 05/15/09 1-033 Interrogatories to parties. 05/15/091-034 Production of documents and things and

entry upon land for inspection and other purposes. 05/15/09

1-037 Failure to make discovery; sanctions. 05/15/091-038 Jury trial in civil actions. 12/15/081-045 Subpoena. 05/15/091-045 Subpoena. 08/07/091-045.1 Interstate subpoenas. 08/07/091-071.1 Statutory stream system adjudication

suits; service and joinder of water rights claimants; responses. 04/08/09

1-071.2 Statutory stream adjudication suits; stream system issues and expedited inter se proceedings. 04/08/09

1-071.3 Statutory stream adjudication suits; annual joint working session. 04/08/09

1-071.4 Statutory stream adjudication suits; ex parte contacts; general problems of administration. 04/08/09

1-071.5 Statutory stream adjudication suits; excusal or recusal of a water judge. 04/08/09


http://www.nmcompcomm.us


rule-making activity http://nmsupremecourt.nmcourts.gov.

1-074 Administrative appeals; statutory review by district court of administrative decisions or orders. 12/15/08

1-075 Constitutional review by district court of administrative decisions and orders. 12/15/08

1-088 Designation by judge. 04/08/091-096 Challenge of nominating petition. 11/10/091-096.1 Review of election recall petitions. 09/04/091-125 Domestic Relations Mediation Act

programs. 05/18/09

rules of civil procedure for the magistrate courts

2-802 Garnishment. 12/31/08

rules of civil procedure for the metropolitan courts

3-202 Summons. 11/16/09

civil forms

4-104B Notice of assignment. 11/16/094-221 Certificateofservice. 11/16/094-221A Party’scertificateofservice. 11/16/094-225 Court’scertificateofservice. 11/16/094-505A Subpoena for production or inspection. 10/12/09 4-805 Application for writ of garnishment. 09/04/094-805B Application for writ of garnishment. 09/04/094-803 Claim of exemptions on execution. 05/06/094-805B Application for writ of garnishment. 12/31/084-808A Notice of right to claim exemptions

from execution. 10/12/09

rules of criminal procedure for the district courts

5-104 Time. 05/06/095-121 Orders; preparation and entry. 05/06/095-207 Withdrawn. 04/06/09 5-604 Time of commencement of trial. 11/24/085-604 Time of commencement of trial. 09/01/095-614 Motion for new trial. 05/06/095-704 Death penalty; sentencing. 05/06/095-801 Modificationofsentence. 05/06/095-802 Habeas corpus. 05/06/09

rules of criminal procedure for the magistrate courts

6-108 Non-attorney prosecutions. 12/31/086-110A Audio and audio-visual appearances

of defendant. 12/31/086-113 Victim’s rights. 12/31/086-201 Commencement of action. 12/31/086-401 Bail. 12/31/086-403 Revocation of release. 12/31/08

6-502 Plea and plea agreements. 12/31/086-506 Time of commencement of trial. 01/15/096-703 Appeal. 01/15/09

rules of criminal procedure for the metropolitan courts

7-106 Excusal; recusal; disability. 01/15/097-110A Audio and audio-visual appearance

of defendant. 09/10/097-401 Bail. 02/02/097-502 Pleas and plea agreements. 09/10/097-506 Time of commencement of trial. 01/15/097-602 Jury trial. 01/15/097-703 Appeal. 01/15/09

rules of procedure for the municipal courts

8-103 Rules; forms; fees. 12/31/088-109A Audio and audio-visual appearances

of defendant. 12/31/088-111 Non-attorney prosecutions. 12/31/088-201 Commencement of action. 12/31/088-401 Bail. 12/31/088-403 Revocation of Release. 12/31/088-501 Arraignment;firstappearance. 12/31/088-502 Pleas. 12/31/088-506 Time of commencement of trial. 01/15/098-703 Appeal. 01/15/09

criminal forms

9-102 Certificateofexcusalorrecusal. 09/10/099-102A Certificateofexcusalorrecusal. 09/10/099-102B Certificateofrecusal. 11/16/099-103B Notice of recusal. 11/16/099-103C Notice of assignment. 11/16/099-221 Certificateofservice. 11/16/099-221A Party’scertificateofservice 11/16/099-222 Court’scertificateofservice. 11/16/099-403 Eligibility determination for

indigent defense services. 10/26/099-406A Guilty plea or no contest plea proceeding. 12/31/08 9-408A Plea and disposition agreement. 12/31/08 9-604 Judgment and Sentence. 05/06/099-612 Order on direct criminal contempt. 11/16/099-613 Judgment and sentence on indirect

criminal contempt. 11/16/099-614 Order on direct civil contempt. 11/16/099-615 Order on indirect civil contempt. 11/16/099-616 Conditional discharge order. 11/16/099-617 Final order of discharge. 11/16/099-618 Orderfindingnoviolationofprobation. 11/16/099-619 Orderfindingprobationviolationand

continuing sentence. 11/16/099-620 Probation violation, judgment, and sentence. 11/16/099-701 Petition for writ of habeas corpus. 05/06/09



rule-making activity http://nmsupremecourt.nmcourts.gov.

children’s court rules and forms

10-408 Eligibility determination for indigent defense services. 10/26/09

rules of appellate procedure

12-202 Appeals as of right; how taken. 09/04/0912-302 Appearance, withdrawal or substitution

of attorneys. 05/06/09 12-305 Form of papers prepared by parties. 05/25/0912-308 Computation of time. 09/04/0912-404 Rehearings. 05/06/0912-501 Certiorari to the district court from

denial of habeas corpus. 05/06/0912-502 Certiorari to the Court of Appeals. 08/24/0912-505 Certiorari to the district court; decisions

on review of administrative agency decisions. 09/04/09

12-603 Appeals in actions challenging candidates or nominating petitions; primary or general elections; school board recalls and recalls ofelectedcountyofficials. 09/04/09

12-607 Certificationfromothercourts. 04/08/09

uJi civil

13-110A Instruction to jury. 12/31/0813-110B Oath to interpreter. 12/31/0813-1406 Strict products liability; care not an issue. 05/15/0913-1430 Breach of implied warranty of

merchantability. 02/02/0913-1636 Maliciousabuseofprocessdefined;

general statement of elements. 10/19/0913-1637 Malicious abuse of process;

“judicialproceeding”defined. 10/19/0913-1638 Malicious abuse of process;

“activeparticipation”defined. 10/19/0913-1639 Misuse of process; lack of probable cause. 10/19/0913-1639A Misuse of process; procedural impropriety,

defined. 10/19/0913-1640 Malicious abuse of process;

illegitimate motive. 10/19/0913-1640A Malicious abuse of process; bifurcated trial;

instructions prior to bifurcated claim of malicious abuse of process. 10/19/09

13-305 Causation (proximate cause). 02/02/0913-306 Independent intervening cause. 02/02/0913-820 Third-partybeneficiary;

enforcement of contract. 12/31/08

uJi criminal

14-111 Supplemental jury questionnaire. 02/02/0914-120 Voir dire of jurors by court. 02/02/0914-203 Act greatly dangerous to life; essential

elements. 02/02/0914-2212 Aggravatedbatteryonapeaceofficer

with a deadly weapon; essential elements. 02/02/09 14-2217 Aggravatedfleeingalawenforcement

officer. 02/02/09

14-5120 Ignorance or mistake of fact. 09/16/0914-5181 Self defense; nondeadly force by defendant. 09/16/0914-5183 Self defense; deadly force by defendant. 09/16/0914-5185 Self defense against excessive force

byapeaceofficer;nondeadlyforce by defendant. 09/16/09

14-5186 Self defense against excessive force byapeaceofficer;deadlyforce by defendant. 09/16/09

14-6018 Special verdict; kidnapping. 09/16/09

rules governing admission to the Bar

15-301.2 Legal services provider limited law license for emeritus and non-admitted attorneys. 01/14/09

rules of professional conduct

16-104 Communication. 11/02/09

rules governing discipline

17-204 Required records. 01/01/10

rules for minimum continuing legal education

18-203 Accreditation; course approval; provider reporting. 12/31/08

code of Judicial conduct

21-300 A judge shall perform the duties of officeimpartiallyanddiligently. 03/23/09

21-400 Disqualification. 09/04/09

rules governing the recording of Judicial proceedings

22-202 Licensingoffirmsengagedincourt reporting or tape monitoring. 09/10/09

22-201 Licensing of court reporters and monitors; power to administer oaths. 12/31/08

rules governing revieW of Judicial standards commission

27-104 Filing and service. 09/04/09

local rules for the second Judicial district court

LR2-123 Opposed motions and other opposed matters;filings;hearings. 06/01/09

LR2-504 Court clinic mediation program and other services for child-related disputes. 05/18/09

LR2-Form T Court clinic referral order. 05/18/09


YLD • In Brief 1

YLD…In BriefThe Official Newsletter of the Young Lawyers Division of the State Bar of New Mexico Winter 2009

Greetings from the Acting Chair/Chair-Elect

I am pleased to say that 2009 has been another

wonderful year for the Young Lawyers Division. Ongoing YLD’s service projects included: YLD/UNM Law Mock Inter-view Program; annual Law Day Call-In program; Ju-nior Judges; Summer Fel-

lowship Program; Wills for Heroes; Homeless Legal Aid Clinics in Las Cruces, Santa Fe and Albuquerque; YLD/UNM Law Mentorship Program (ongoing). Thank you to all of our volunteers who make these programs success-ful.

We also launched two new public service projects – The Children’s Court Mentorship and Voices Against Violence. Voices Against Violence is “a call to action for young lawyers around the country to join forces to end do-mestic violence” by the American Bar Associa-tion Young Lawyers Division. In May, we re-ceived a $900 subgrant from the ABA/YLD to help us get this program going. A roundtable of service providers is scheduled for the near future. Please keep an eye out in the Bar Bul-letin for volunteer opportunities as the project gets underway.

As this article goes to print, the Second An-nual Justice for All Ball is scheduled for to-morrow, November 14th. YLD is proud to once again co-sponsor this event with Equal Access to Justice. At the Ball, the Pamela B. Minzner Equal Access to Justice Awards are given to those members of our profession who make extraordinary contributions to opening the legal process to all New Mexicans.

Some of the most exciting news of the year was learning that the ABA/YLD Fall 2010 Conference will be held in Santa Fe! This national conference will be an excellent op-portunity for New Mexico YLD members to showcase our state and the wonderful ways in which young lawyers here contribute to our communities. We invite all YLD members to come to El Dorado Hotel and participate in the conference next fall.

In closing, I wish outgoing YLD Board mem-bers Vice Chair Clara Moran, Dustin Hunter, Reagyn Germer, Dooley Gilchrist, and Emilio Chavez the best of luck with their future en-deavors. Their leadership and contributions will be missed. On behalf of the YLD Board, many thanks for their hard work and their dedication to YLD programs. For more infor-mation on YLD, please feel free to contact me at [email protected].

YLD BOARDChair, Martha ChicoskiVice Chair, Clara Moran

Director-At-Large, Position 1, William GilchristDirector-At-Large, Position 2, Mateo Page

Director-At-Large, Position 3, Ernestina CruzDirector-At-Large, Position 4, Alexander Russell

Director-At-Large, Position 5, Clara MoranRegion 1 Director, Reagyn Germer

Region 2 Director, Emilio Jacob ChavezRegion 3 Director, Dustin Hunter

Region 4 Director, David LutzRegion 5 Director, Martha Chicoski

Past Chair, 2009, Brent MooreABA Delegate, Roxanna Chacon

UNM Student Liaison, Othiamba Umi

YLD SECTION LIAISONSAppellate Practice - Timothy Atler

Bankruptcy Law - Charles HughsonBusiness Law - Jerome O’Connell

Children’s Law - Jennifer deGraauwCriminal Law - Letitia Carroll

Elder Law - Sara TraubEmployment & Labor Law - Erin Langenwalter

Family Law - Reagyn GermerHealth Law - Valerie ReighardIndian Law - Vincent Knight

Intellectual Property Law Section - Tony CoutureInternational & Immigration Law - Iris Calderon

Natural Resources, Energy & Environmental Law - Marcus Rael

Prosecutors - Allison Michael Public Law - Jennifer Hower

Real Property - Tina CruzSolo & Small Firm - Erika Poindexter

Taxation - Suzanne BrucknerTrial Practice - Scott Owen

YLD PROGRAM CHAIRSBridge the Gap 2009 - Roxanna Chacon

Law Day Call-In Programs 2009 - Albuquerque: Martha Chicoski

Las Cruces: David Lutz Farmington: Reagyn Germer

Roswell: Dustin Hunter YLD/Children’s Court Mentorship Program -

Samantha Jarrett and Martha ChicoskiHomeless Legal Clinic -

Albuquerque: Laurel Nesbitt Las Cruces: Steven Almanza

Santa Fe: Donna LynchIn Brief - Brent Moore

Junior Judges - Albuquerque: William Gilchrist and Martha Chicoski

Las Cruces: Roxanna Chacon7th Judicial District: Matt Page

YLD/UNM Law Mock Interview Program -Nasha Torrez and Martha Chicoski

Summer Fellowship Program - Brent MooreYLD/UNM Law Mentor Program -

Sarita Nair and Keya Koul

Martha Chicoski

The number of YLD Nominating Petitions submitted by the October 31st deadline

is fantastic. Petitions were received for Director-at-Large Position 1 from Keya Koul and John Valdez, for Director-at-Large Position 3 from Ernestina “Tina” Cruz and Carlos “Charlie” Madrid, and Director-at-Large, Position 5 from Kendrick Dane, Juan Marquez, Samantha Jarrett and Robert Lara. In addition, petitions were received for Region 2 Director from Joseph Walsh and Sarah L. Maestas Barnes. Additionally, Kinder Shamhart turned in an uncontested petition for Region 1, Jared Kallunki turned in an uncontested petition for Region 3, and

2009 YLD ElectionMartha Chicoski

David Lutz turned in an uncontested petition for Region 4,

There will be many new faces on the YLD Board during the next few years. We look forward to the incoming Board member’s ideas and energy. With the turnover, there will be many leadership opportunities both on the Board itself, and within the Board’s numerous programs and projects. We hope that all Board candidates stay involved with YLD activities following the election results. Additionally, all YLD members are encouraged to participate in the Division’s activities.


2 YLD • In Brief

ABA YLD 2009 Fall Conference Roxanna M. Chacon, ABA YLD District 23 (NM & AZ) Representative

The American Bar Association Young Lawyers Division (“ABA YLD”) held its

Fall Conference in Birmingham, Alabama on October 22 -24, 2009. The New Mexico YLD was well represented with four board members in attendance.

The Conference began with a Welcome Reception on Thursday night for all conference attendees. On Friday, the Plenary Session featured speaker James Rotch. Mr. Rotch is the author of the Birmingham Pledge and the Founder of the Birmingham Pledge Foundation. The Birmingham Pledge is a statement of principles at the heart of a grassroots effort to eliminate racism and prejudice. Launched in 1998 in Birmingham, the pledge has spread worldwide.

After a morning of CLE programs, conference attendees marched to Kelly Ingram Park for the official launch of this year’s ABA YLD Public Service Project They Had a Dream Too: Young Leaders of the Civil Rights Movement. The Project, developed by the Texas Young Lawyers Association, is designed to educate 11th and 12th grade students about the civil rights struggles that have occurred since the

1950s and to inspire them to become future leaders. Friday’s activities concluded with a Fall Gala, which was held at the Barber Vintage Motorsports Museum.

On Saturday, the Affiliate Presidents and Presidents-Elect Roundtable was held. The Roundtable gave the present and future affiliate leaders a chance to meet one another, share ideas and discuss issues they were facing. Other conference attendees had the opportunity to attend an ethics CLE and a program on networking and business development. The conference concluded with a closing session, where ABA YLD Chair Kelly-Ann Clarke discussed the upcoming ABA YLD Mid-Year Meeting. The Mid-Year Meeting will be held in Orlando, Florida on February 4-6, 2010.

Please visit the ABA YLD website at www.abanet.org/yld for additional information on the ABA YLD Mid-Year Meeting and to learn about the other benefits of ABA YLD membership. The ABA YLD is the home for young lawyers. With over 150,000 members and 300 affiliated groups, the ABA YLD is the largest young lawyer organization in the world. Membership is open to lawyers who are under 36 years old or admitted to practice for five years or less.

This summer the Young Lawyers Division again co-sponsored the University of New Mexico’s

Summer Law Camp. Twenty-four seventh and eighth grade students from throughout the state were selected to participate in the camp, which is primarily sponsored by UNM and the New Mexico Hispanic Bar Association. This year the program saw its 100th student participate in the camp.

During their week in Albuquerque, the students lived on-campus at UNM. Each morning they went on field trips to local law firms, the U.S. District Court, the Second Judicial District Court and Metropolitan Court. During the afternoon, they prepared for a mock trial which was held before a jury of local attorney volunteers, including a number of YLD members. Judges Nan Nash and Clay Campbell presided over the trials.

In the evening, the students were required to attend various programs at UNM, including a low ropes team building exercise, a community panel hosted by ENLACE, and a public service project at a local homeless shelter. In addition, the students received educational mentorship where they were introduced to the process for gaining admission into college.

This year’s program was facilitated by Tim Atler, Denise Chanez and Ed Perea. The Rodey Law Firm, for the fourth year in a row, hosted the students for a question and answer session. Many other countless volunteers helped guide the students throughout the

Summer Law Camp Ernestina “Tina” Cruz , Director-At-Large, Position 3

one week camp, including Janet Blair, Brian Colon (the law camp founder), Judge Sandra Clinton, Scott Ferguson, Damon Martinez, Lisa Ortega, Judge James Parker, Lydia Piper, Phillip Sapien, the Mexican American Law Student Association, the Narvaez Law Firm, and the Sutin Law Firm.

The camp will again be hosted this upcoming summer. An announcement regarding the application deadline will be posted early next year on UNM’s website at http://specialprograms.unm.edu/new/indexsummerlaw.html. You are invited to encourage students in your area to apply for the camp. Geographical and ethnic diversity have been a long-standing focus of the program and students from throughout the state are encouraged to apply. Likewise, if you are interested in sponsoring a student to attend the 2010 Law Camp, please contact Tina Cruz at (505)248-0500.

Below you will find comments from some of this year’s participants:

“Overall, my experience at the camp was fantastic. I would like to congratulate my colleagues and anyone else who gets into the camp. I would like to tell future campers that they will have a great time at the camp and it’s a privilege to be a part of this camp.” Summer Begay, Farmington

“The UNM Summer Law Camp was my first summer camp ever and I have to say that I was not disappointed! It was one of the most awesome things I have ever done! It was just so meaningful. The students, teachers and mentors were simply amazing. The classes were really fun and

continued on page 4

http://www.abanet.org/yld

http://specialprograms.unm.edu

YLD • In Brief 3

Amber Lea Weeks1

Thank you for awarding me with a Young Lawyer Division summer fellowship to work with Diocesan Migrant & Refugee Services, Inc.

(DMRS). During the summer of 2009, I focused on improving the rep-resentation of immigrants in both criminal and immigration proceed-ings. My work encompassed two major areas: (1) developing a step-by-step guide to the immigration consequences of crimes in New Mexico; and (2) working under the supervision of Jennifer Landau to advise cli-ents regarding immigration consequences and to represent immigrants in deportation proceedings.

Through a partnership between DMRS and the New Mexico Public De-fender’s Office, I developed a framework for analyzing the specific im-migration consequences of crimes in New Mexico. Under New Mexico v. Paredez, an attorney’s failure to affirmatively advise an immigrant client of the specific immigration consequences of a crime is considered ineffec-tive assistance of counsel. New Mexico v. Paredez, 2004-NMSC-036, ¶ 19, 133 N.M. 533, 539, 101 P.3d 799, 805. Consequently, throughout the summer, I partnered with the Public Defender’s Office to develop charts to guide criminal defense attorneys step-by-step through the fol-lowing process for determining the specific immigration consequences for a client: (1) determining if the client is a U.S. citizen who is not subject to deportation; (2) determining whether the grounds of inadmissibility, deportability, or both grounds apply to the client; (3) referencing charts that categorize the immigration consequences of New Mexico crimes by subject area and inadmissibility versus deportability consequences; and (4) referencing memos specific to New Mexico statutes to determine the specific immigration consequences of a particular crime. During the summer, I completed the overall process charts and a memo template for analyzing domestic violence crimes (attached hereto). The next phase is to develop memos for New Mexico offenses and complete charts analyz-ing immigration consequences by subject area. The Immigration and Criminal sections of the State Bar of New Mexico have provided funding to continue the project.

In addition to developing charts to systemically improve representa-tion of immigrant defendants, I also provided direct service by working with the Public Defender’s Office to advise clients of the immigration consequences of charged crimes and representing clients in deportation proceedings under the supervision of DMRS. Specifically, I completed immigration intakes for public defender clients charged with shoplifting, drug paraphernalia, and domestic violence crimes and then wrote ad-visal memos about the immigration consequences of those crimes. I also worked under the supervision of DMRS to perform intakes of potential

Young Lawyer Division Summer FellowshipThe Young Lawyers Division was very pleased to continue its public interest fellowship in 2009. The articles below were provided by the 2009 recipients.

Paige Duhamel

The Young Lawyers Division Fellowship provided me with the wonderful opportunity to remain clerking at the ACLU of New

Mexico. I continued to be involved with cases I had worked on during the summer after my first year of law school and during my 2L year. Among these cases is a challenge to a provision of Don’t Ask, Don’t Tell. From this challenge, I have learned about working with national organizations on impact litigation.

I also resumed work on litigation aimed at improving conditions for New Mexico’s prisoners, primarily in the area of health care and men-tal health care. Meeting with clients in jails and speaking with them

about the conditions of their confinement, I have learned that the ideal of fair treatment is often far from the reality. This summer at the ACLU of New Mexico, I drafted letters and worked on claims addressing both systemic problems and individual issues in prisons and jails.

During my Young Lawyers Division Fellowship, I additionally re-searched and drafted documents on first amendment issues involving internet filtering in public libraries, the rights of children of unmar-ried couples, and health insurance coverage for workers with domestic partners. I am currently clerking with the ACLU through an extern-ship program at the law school. I expect that a lot of the work I began during my Fellowship will be completed this fall.

clients and prepare the cases of clients in deportation proceedings. I pri-marily worked on two cases for non-lawful permanent residents applying for immigration relief and one case for a lawful permanent resident who was placed in deportation proceedings due to a criminal offense. I also prepared one case for a New Mexico Rule 1-060 petition based on inef-fective assistance of counsel and referred the case to the UNM School of Law Clinic. In addition, I investigated Special Immigrant Juvenile Status (SIJS) options for another potential client, prepared a presentation on SIJS for the UNM School of Law Clinic, and referred the case to the UNM School of Law Clinic.

Through both direct service and analyzing the immigration consequenc-es of crimes during my fellowship, I recognized a critical need to de-velop resources so that attorneys and clients understand that immigra-tion consequences of crimes can often be more severe than the criminal consequences. One lawful permanent resident client who had pled no contest to two shoplifting charges was shocked to find out that she was deportable based on those convictions since she had never even been in jail. Another 19-year-old client cried when he found out that he was go-ing to be deported because he did not have lawful status even though the criminal charges against him were dismissed. He said that he had been here since he was a baby, and it never occurred to him that he could be deported.

In addition to enabling me to work toward improved representation of immigrants in New Mexico this summer, the work I did this summer through the YLD fellowship affirmed my long-term goal of organizing a non-profit law center that will emphasize a community-based approach in providing free and low-cost legal services and education to immi-grants. Through workshops, consultations, and legal representation, I plan to advocate for immigrants and teach immigrants to advocate for themselves regarding immigration and other legal issues. My vision is to walk alongside immigrants to empower them to grasp hold of the law and to change the law when necessary so that they may speak, work, get sick, get well, walk down the street, open the doors of their homes, and live without fear. The YLD Summer Fellowship provided a step toward actualizing this vision by allowing me to gain valuable experience working with immigrant clients collaboratively with Diocesan Migrant & Refugee Services and the New Mexico Public Defender’s Office.

Thank you for providing me with this exceptional opportunity to im-prove legal access for immigrants in New Mexico. _________________________________(Endnotes)1 formerly Amber Lea Abercrombie

4 YLD • In Brief

Clara Moran, Vice Chair, Director-At-Large, Position 5

On August 28, 2009, YLD sponsored a luncheon designed to introduce young

lawyers to the most recently appointed judges, all of whom serve in and around Bernalillo County. Over 50 members of the Young Lawyers Division attended the luncheon, and each of the judges spoke about their role on the bench. Court of Appeals Judges Timothy Garcia, Linda Vanzi,

and Robert Robles each shared their experiences in transitioning from being on the District Court bench to serving on the Court

of Appeals. Newly appointed 2nd Judicial District Court judges, Beatrice Brickhouse, Alan Malott, and Gerard Lavelle spoke in detail about the judicial appointment process. Former YLD Chair and current Metro Court Judge (5) Briana Zamora spoke about working in the busiest court in New Mexico. YLD thanks the all the judges who attended for taking time out of their busy schedules to reach out to the younger members of the Bar. YLD also thanks the Roma Bakery and Deli for providing delicious sandwiches and pastries for the event.

Bert Parnall , Christopher Moore, and Franziska Ortega-Moore listen as Court of Appeals Judge Linda Vanzi discusses her recent appointment.

Judges in attendance (L to R): Court of Appeals Judge Linda Vanzi, Court of Appeals Judge Robert Robles, Court of Appeals Judge Timothy Garcia, District Court Judge Alan Malott, District Court Judge Beatrice Brickhouse, and Metropolitan Court Judge Briana Zamora. District Court Judge Gerard Lavelle not pictured.

invigorating. I learned how to make arguments and how to talk correctly in a formal place.” Gabe Gallegos, Las Cruces

“Law camp is one of the greatest experiences you can have. Getting to learn what goes on in a courtroom, seeing trials, having a mock trial of your own, these are all a part of what you do while you are at the one and only LAW CAMP.” Cheyenne Law, Cebolla

“My summer law camp experience was great! Who would have thought that I could have so much fun, while I also learned so much about law and going to college! In closing, I would like to say, I plead guilty—guilty

to learning more than I ever expected! Thank you to everyone who made the camp possible.” Kaleigh Lopez, Belen

“The camp was first of all educating and informative. It was neat to see that so many real lawyers and a judge, Judge Clay Campbell, took time out of their busy schedules to hear our case. The UNM Summer Law Camp was a really fun and educating experience. I would totally recommend other students from around New Mexico to try and get into this program. It may not end up being what we do in life as we get old, but at least we can say we had some lawyer experience in our lives.” Kuien Quintana, Cochiti Pueblo

Summer Law Camp continued from page 2

THE YOUNG LAWYERS DIVISION WOULD LIKE TO WISH

A HAPPY AND SAFE HOLIDAY SEASON TO ALL THE MEMBERS OF THE NEW MEXICO STATE BAR!

Luncheon with Judges


advance opinionsfrom the neW mexico supreme court and court of appeals

http://www.nmcompcomm.us/


Opinion Number: 2009-NMSC-050

Topic Index:Criminal Law: Deadly Weapon; Specific Intent; and Weapons Offenses

Statutes: Applicability; Interpretation; Legislative Intent; and Rules of Construction

STATE OF NEW MEXICO,Plaintiff-Respondent,

versusNICK R., a child,

Defendant-Petitioner. No. 30,657 (filed: September 28, 2009)

ORIGINAL PROCEEDING ON CERTIORARISAM B. SANCHEz, District Judge

opinion

charles W. daniels, Justice

{1} Petitioner Nick R., a sixteen-year-old student at Taos High School, was charged in Children’s Court with possessing a deadly weapon on school premises, in violation of NMSA 1978, Section 30-7-2.1 (1994). The issue before us is whether the Legislature intended to make an ordinary pocketknife a per se deadly weapon in the Criminal Code’sstatutorydefinitions,withoutregardto either its actual use or a person’s purpose for carrying it, and thereby preclude any right to a jury determination of its status as a deadly weapon in the circumstances of a particular case.{2} Although Section 30-7-2.1 does not refer to a pocketknifeor define the term“deadly weapon” in any other way, NMSA 1978, Section 30-1-12(B) (1963) provides that, “[a]s used in the Criminal Code”:

“deadlyweapon”meansanyfire-arm, whether loaded or unloaded;

HUGH W. DANGLERChief Public Defender

NANCy M. HEWITTAppellate Defender

J.K. THEODOSIA JOHNSONAssistant Public Defender

Santa Fe, New Mexicofor Petitioner

GARy KINGAttorney General

ANDREW S. MONTGOMERyAssistant Attorney General

Santa Fe, New Mexicofor Respondent

or any weapon which is capable of producing death or great bodily harm, including but not restricted to any types of daggers, brass knuckles, switchblade knives, bowie knives, poniards, butcher knives, dirk knives and all such weapons with which dangerous cuts can be given, or with which dangerousthrustscanbeinflicted,including swordcanes, and any kind of sharp pointed canes, also slingshots, slung shots, blud-geons; or any other weapons with which dangerous wounds can be inflicted[.]

{3} TheCourtofAppealsaffirmedrulingsof the Children’s Court that Petitioner was not entitled to have a jury decide whether he had the intent to possess a pocketknife as a weapon. State v. Nick R., No. 27,145, slip op. at 2 (N.M. Ct. App. Aug. 30, 2007). Our review of the definitional statute’slanguage, its history, its purposes, its rela-tionship with other statutes, and over one

hundred years of New Mexico case law leads us to the opposite conclusion. We therefore reverse the contrary rulings of the lower courts.I. FACTS AND PROCEEDINGS

BELOW{4} The relevant facts were stipulated by the parties. Petitioner Nick R. worked after school hours for his father at a furniture store. His father supplied all store employ-ees, including Nick, with pocketknives for opening boxes at work. One day in his math class, Nick felt something in his pocket and pulled it out to look at it. It was the pocketknife he had been using at work the evening before when he had been wearing the same pair of pants. His math teacher spotted him “messing around” with the un-opened pocketknife underneath his school desk,confiscatedit,andturneditovertoschool authorities. Nothing in the record indicates that the pocketknife was ever used or intended to be used as a weapon.{5} Nick was suspended from school pending an administrative investigation, but he was reinstated after the superin-tendent of schools determined that he had not intentionally brought the pocketknife onto campus. Three months later, the State filedadelinquencypetitioninChildren’sCourt, charging that Nick had committed a delinquent act under the Children’s Code, on the theory that he had committed an of-fense that would have been a fourth-degree felony if committed by an adult.{6} Before trial, theStatefiled twomo-tions in limine relevant to this appeal, both of which were heard as preliminary matters on the day the parties appeared for thescheduledjurytrial.Thefirst,“State’sMotion in Limine for Legal Determina-tion that the Knife Is a Deadly Weapon,” included as an exhibit a photograph of the pocketknife taken from Nick. The motion sought to have the court rule as a matter oflawthatthedepicteditemfitthestatu-torydefinitionof“deadlyweapon”underSection 30-1-12(B) and rule that the jury could not be allowed to make that determi-nation. In granting the motion and taking the issue from the jury, the court rejected defense counsel’s argument that the jury should determine whether the statutory deadlyweapondefinition had beenmet,based on the nature of the object and its manner of actual or intended use in the circumstances.

http://www.nmcompcomm.us


{7} A related motion was the “State’s Mo-tion in Limine to Exclude Any Reference to a Use Requirement,” which argued that not only should the court make a pretrial determination that the particular pocket-knife was per se a deadly weapon under the statute, but that defense counsel should be prohibited from making any argument to the jury regarding Nick’s actual or in-tended use of the pocketknife. In granting the State’s motions, the Children’s Court judge commented from the bench:

So, it’s not the intended use of the instrument, it’s just the fact that you have it and you shouldn’t. Simple as that. So, I don’t think the use of it or the intended use has any bearing in this case. He either had it on him or carried it on school grounds or he didn’t. I don’t know what else—that’s what the jury’s got to hear.

They can’t hear that he didn’t intend to use it, he wasn’t going to use it, because everybody could argue that, whether they intend to or not.

{8} Following the court’s rulings on the motions in limine, defense counsel moved thattheissuesbecertifiedforaninterlocu-tory appeal, given the fact that there were no other triable issues to submit to the jury. The court denied the request. The parties then conferred and arrived at a conditional plea agreement that preserved Petitioner’s right to appellate review of the pretrial rul-ings in limine.{9} In an unpublished memorandum opinion, theCourt ofAppeals affirmedthe Children’s Court rulings, holding that simple possession of a pocketknife on school premises constitutes criminal pos-session of a deadly weapon as a matter of law, regardless of the possessor’s actual or intended use. Nick R., No. 27,145, slip op. at 2-3.{10} The case comes before us on certiorari to review the Court of Appeals’ conclusion that “[b]ecause Child was car-ryingaknife,whichisdefinedasadeadlyweapon, there is no requirement that the State show that he intended to use it as a weapon.” Id. at 3.II. STANDARD OF REVIEW{11} Statutory construction is a matter of law we review de novo. State v. Rivera, 2004-NMSC-001, ¶ 9, 134 N.M. 768, 82 P.3d 939. Our primary goal is to ascertain and give effect to the intent of the Legis-lature. State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064. In doing

so, “we examine the plain language of the statute as well as the context in which it was promulgated, including the history of the statute and the object and purpose the Legislature sought to accomplish.” Maes v. Audubon Indem. Ins. Group, 2007-NMSC-046, ¶ 11, 142 N.M. 235, 164 P.3d 934; see Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69. We must take care to avoid adoption of a construction that would “render the stat-ute’s application absurd or unreasonable” or “lead to injustice or contradiction.” N.M. State Bd. of Educ. v. Bd. of Educ., 95 N.M. 588, 591, 624 P.2d 530, 533 (1981).III. DISCUSSION{12} Article 7 of the New Mexico Criminal Code, “Weapons and Explosives,” contains several statutes imposing criminal sanctions for unlawfully carrying deadly weapons. Section 30-7-1, provides with respect to all those statutes that “‘[c]arrying a deadly weapon’ means being armed with a deadly weapon . . . or in close proximity thereto, so that the weapon is readily ac-cessible for use.” NMSA 1978, § 30-7-1 (1963); see State v. Salazar, 1997-NMCA-043, ¶¶ 8, 10, 123 N.M. 347, 940 P.2d 195 (holding that the term “carrying” does not have a broader meaning in connection with carrying a weapon on school grounds; whether the defendant was carrying a dead-ly weapon was a factual determination to be made by a jury in school ground cases, in the same manner as in prosecutions under other statutes criminalizing the carrying of a deadly weapon).{13} The basic crime of unlawful car-rying of a deadly weapon is contained in NMSA 1978, Section 30-7-2(A) (2001), which imposes a petty misdemeanor crimi-nal penalty of up to six months in jail, and NMSA 1978, § 31-19-1(B) (1984), for carrying “a concealed loadedfirearmorany other type of deadly weapon anywhere, except” in one’s automobile for personal protection, on one’s real property, with a concealedfirearmspermit,orbyapeaceofficer.{14} In addition to this generally ap-plicable weapons-carrying crime, Article 7 also contains statutes providing height-ened criminal penalties for carrying deadly weapons in particular contexts, such as au-thorizing a full misdemeanor jail sentence of up to a year, NMSA 1978, § 31-19-1(A) (1984), for carrying any deadly weapon on a bus, NMSA 1978, § 30-7-13 (1979), and a felony prison sentence of up to eighteen months for carrying any deadly weapon on school grounds, § 30-7-2.1, the criminal

charge involved in this case. See NMSA 1978, § 31-18-15(A)(10) (2005, prior to 2007 amendment).{15} Although neither Section 30-7-2.1 nor any other statute in Article 7 contains any further definition ofwhat ismeantby the recurring term “deadly weapon,” the courts below and the parties have recognized that the definition applicableto those statutes is contained in Section 30-1-12(B), the Criminal Code’s uniform definitionoftheterm,applicabletoabroadrange of offenses involving both use and possession of deadly weapons. See State v. Traeger, 2001-NMSC-022, ¶ 10, 130 N.M. 618, 29 P.3d 518 (interpreting Section 30-1-12(B) in the context of a charge of aggravated battery with a baseball bat as a deadly weapon); State v. Fernandez, 2007-NMCA-091, ¶¶ 6, 8-9, 142 N.M. 231, 164 P.3d 112 (interpreting Section 30-1-12(B) in the context of a charge of armed robbery with a BB gun as a deadly weapon); State v. Galaz, 2003-NMCA-076, ¶¶ 4, 9-10, 133 N.M. 794, 70 P.3d 784 (interpreting Section 30-1-12(B) in the context of a probation re-vocation for possession of bullets as deadly weapons); State v. Anderson, 2001-NMCA-027, ¶¶ 10, 14, 130 N.M. 295, 24 P.3d 327 (interpreting Section 30-1-12(B) in the context of a charge of aggravated stalking with a stick as a deadly weapon); State v. Blea, 100 N.M. 237, 238-39, 668 P.2d 1114, 1115-16 (Ct. App. 1983) (interpreting a similar city ordinance in the context of a charge of unlawful carrying of a voltage tester as a deadly weapon). We therefore must analyze the proper interpretation of thisuniformstatutorydefinitionofdeadlyweapons in light of its multiple intended applications.A. Statutory Language Analysis{16} Thefirststepinanystatutorycon-struction is to try “to determine and give effect to the Legislature’s intent” by ana-lyzing the language of the statute. Marbob Energy Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. The “deadly weapons” definitionalstatute,whichincludesspecifi-cally named weapons and several generic catchalls, neither refers to a pocketknife in particular nor to all knives in general. While it includes “anyfirearm,whetherloaded or unloaded,” it does not include “any knife.” See § 30-1-12(B). Instead, Section 30-1-12(B) clearly designates by nameanumberofspecifickindsofknivesasincludedwithinitsdefinitionofdeadlyweapon: “daggers . . . switchblade knives, bowie knives, poniards, butcher knives,


dirk knives . . . swordcanes, and any kind of sharp pointed canes.”{17} Because a common pocketknife is not mentioned in the statute, we consider whether the Legislature intended to give it thesamestatusasthespecificallynamedweapons through application of the three general catchall clauses in the statute: (1) “any weapon which is capable of produc-ing death or great bodily harm,” (2) “and all such weapons with which dangerous cuts can be given, or with which danger-ous thrustscanbe inflicted,”and (3)“orany other weapons with which dangerous wounds can be inflicted.” Section 30-1-12(B). The State argues that the Court of Appeals was correct in interpreting the phrase “and all such weapons with which dangerous cuts can be given, or with whichdangerousthrustscanbeinflicted”asreflectingalegislativeintenttoincludepocketknives as per se deadly weapons.{18} Because all of the catchalls relate specifically to “weapons” rather than amore inclusive term such as “items” or “instruments,” we must address what the Legislature meant by its use of the term “weapons.”Thattermisnotdefinedsepa-rately in the statutes, and we therefore must consider the ordinary meaning most likely to have been in the minds of the enacting legislators. See State v. Gutierrez, 2007-NMSC-033, ¶ 30, 142 N.M. 1, 162 P.3d 156 (interpreting the intended meaning of words used by the Legislature by consult-ing dictionaries to ascertain their “ordinary meaning”).The dictionary definitions of“weapon” focus on an object’s use or in-tended use against another. See, e.g., Web-ster’s Third New International Dictionary 2589 (1976) (“an instrument of offensive or defensive combat”); Black’s Law Diction-ary 1624 (8th ed. 2004) (“An instrument used or designed to be used to injure or kill someone”). The Court of Appeals recently reaffirmedtheapplicabilityofthismodeofinterpretation in State v. Neatherlin, 2007-NMCA-035, ¶ 15, 141 N.M. 328, 154 P.2d 703: “This Court has previously relied on thedefinitionof‘weapon’fromBlack’s Law Dictionary 1593 (6th ed. 1990): ‘An instru-ment of offensive or defensive combat, or anything used, or designed to be used, in destroying, defeating, threatening, or injur-ing a person.’” (internal quotation marks and citation omitted).{19} Thedefinitionsofthespecificitemsnamed in the statute emphasize that the Legislature must have had in mind instru-ments used or carried for use in injuring or killing people when it repeatedly used

the term “weapons.” See, e.g., 8 Oxford English Dictionary 95 (2d ed. 1989) (defining“poniard”as“[a]shortstabbingweapon”); 4 Oxford English Dictionary, supra, at 214 (defining “dagger” as “[a]short stout edged and pointed weapon, like a small sword, used for thrusting and stab-bing”); Webster’s Third New International Dictionary, supra,at642(defining“dirk”as “a long straight-bladed dagger”); id. at 2314(defining“swordcane”as“acaneorwalking stick that conceals the blade of a sword or dagger”); id. at 2314 (defining“sword” as “a weapon with a long blade for cutting and thrusting”); id.at262(defining“bowie knife” as “a large hunting knife adaptedesp.forknife-fightingandcommonin western frontier regions”).{20} The striking characteristic of all the inherentlydangerous items identifiedby name in the statute is that they are generally carried on one’s person for their utility as offensive or defensive weapons. Incontrast,nodefinitionof“pocketknife”we have found refers to it as a “weapon” or refers to its having a purpose of use against other human beings. See id.at1747(defin-ing “pocketknife” simply as “a knife with abladefoldingintothehandletofititforbeing carried in the pocket”).{21} New Mexico courts have long recognized the ejusdem generis principle of statutory construction, that where general words followwords of amore specificmeaning, “the general words are not con-strued in their widest extent but are instead construed as applying to persons or things ofthesamekindorclassasthosespecifi-cally mentioned.” State v. Foulenfont, 119 N.M. 788, 791, 895 P.2d 1329, 1332 (Ct. App. 1995) (internal quotation marks and citation omitted); see id. at 790-91, 895 P.2d at 1331-32 (declining to interpret a chain-link fence as a “structure” as meant in the burglary statute, which criminalizes unlaw-ful entry into “any vehicle, watercraft, air-craft, dwelling or other structure, movable or immovable” (internal quotation marks and citation omitted)); see also State ex rel. Murphy v. Morley, 63 N.M. 267, 269, 317 P.2d 317, 318-19 (1957) (applying the prin-ciple to hold that “lewdness,” as meant by a statutedefiningasanctionablenuisanceas“any place upon which lewdness, assigna-tion or prostitution, is conducted,” did not includetheshowingofpornographicfilmsor other acts “not connected with assigna-tion or prostitution”) (internal quotation marks and citation omitted). The meaning of “weapons” in the catchall phrases thus would necessarily share the attributes of the

itemsspecificallynamed,thatis,inherentlydangerous items that either are carried for useorareactuallyusedtoinflictinjurieson people.{22} The application of this concept of statutory construction to this case is made inescapable by the Legislature’s use of the adjective “such” before “weapons” in the generic phrase relied on by the State, which is found immediately after the itemization of prohibited kinds of knives: “and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts canbeinflicted.”Section30-1-12(B).Theword “such” has the same meaning in legal analysis as it does in other linguistic appli-cations. See 17 Oxford English Dictionary, supra,at102(defining“such”as“[o]fthesame kind or class as something mentioned or referred to; of that kind; similar, the like”); Bryan A. Garner, A Dictionary of Modern Legal Usage 849 (2d ed. 1995) (“Such is properly used as an adjective when reference has previously been made to a category of persons or things: thus such = of this kind, not this, these or those.”). Theuseoftheword“such”inthisdefini-tional statute underscores that the generic catchall is directed to the same kind of things specifically named, instruments carried for use, or actually used, to injure or kill people.{23} Significantly, the statute names only one kind of knife that folds for car-rying in a pocket, the weapon known as a “switchblade,”whichiscommonlydefinedas “a pocketknife having the blade spring-operated so that pressure on a release catch causesittoflyopen,”Webster’s Third New International Dictionary, supra, at 2314, andwhichisdefinedfurtherinourstatutesas a

knife which has a blade which opens automatically by hand pres-sure applied to a button, spring or other device in the handle of the knife, or any knife having a blade which opens or falls or is ejected into position by the force of grav-ity or by any outward or centrifu-gal thrust or movement.

NMSA1978,§30-7-8(1963).Itisdifficultto imagine that the Legislature could have meant to include all pocketknives when it not only did not name them but at the same time expressly named only one narrowly specialized type of folding pocketknife that is designed for quick use in a knife fight. “Theage-oldLatinphrase inclusio unius est exclusio alterius is applicable here. It means the inclusion of one thing is


the exclusion of the other. The legislature didnotseefittoincludeitinthestatute,therefore it is excluded.” City of Santa Rosa v. Jaramillo, 85 N.M. 747, 749-50, 517 P.2d 69, 71-72 (1973) (applying the concept to the scope of a permissible liquor license transfer).{24} Eventhoughwecanfindnothingin the plain wording of the statute that re-flectsanyexpressionof legislative intentto criminalize the carrying of a common pocketknife, out of caution we also have traced the statute’s long history in New Mexico law.B. Statutory History{25} To understand fully the intended meaning of a statute describing what the Stateinitsbriefingunderstandablyrefersto as a “quaint collection” of nineteenth century weapons such as poniards and dirk knives and swordcanes, it is important to trace the statute’s origins and develop-ment.{26} The statutory use of the term “deadly weapon” in New Mexico law dates back to the earliest territorial days, and it began with concerns about the actual use, rather than mere possession, of deadly weapons. The rather sparse collection of criminalstatutesfirstsetforthinTerritorialNew Mexico’s 1846 Kearny Code provided nodefinitionoftheterm“deadlyweapon,”although it did contain one deadly weapon offense, assault with a deadly weapon. Kearny Code of Laws (1846), Crimes and Punishments, art. III, § 7; see Territory v. Sevailles, 1 N.M. 119, 123, 1855 WL 2214, at *1 (1855) (holding that an indictment charging assault with intent to kill with an undescribed knifewas insufficient underthe statute because of its failure to allege that the assault was committed with a deadly weapon).{27} In 1869, the New Mexico Ter-ritorial Legislative Assembly enacted the comprehensivestatutorydefinitionoftheterm “deadly weapons” that formed the basicframeworkofthemoderndefinition.1868-69 N.M. Laws, ch. 32, §§ 1-16. The Act made it a crime for people “to carry deadly weapons, either concealed or other-wise, on or about their persons within any of the settlements of this Territory,” other than on their own real property, id. § 1, or while traveling between settlements or towns. Id. § 11. Hotels, boarding houses, and saloons were required to post notices that travelers were required to divest them-selves of their deadly weapons within one hour of their arrival in a town. Id. § 12. Section 7 provided that “where the words

‘weapons’ or ‘deadly weapons’ are used in this act, such word or words shall be construed to mean the weapons described in section two of this act.” Id. § 7. Section 2containedthefirststatutoryarticulationofthedefinitionthathasbeencarriedforwardwith little change for almost a century and a half into New Mexico’s current criminal code:

Deadly weapons, in the meaning of this act, shall be construed to mean all kinds and classes of pistols whether the same be a revolver, repeater, derringer, or any other kind or class of pis-tol; any and all kinds of bowie knives, daggers, poniards, butcher knives, dirk knives, and all such weapons with which cuts can be given, or by which wounds can be inflicted by thrusting, including sword canes and such sharp pointed canes with which deadly thrusts can be given, and all kinds of slung shots, and any other kinds of deadly weapon, by whatever name it may be called, by which a dangerous wound can beinflicted.

Id. § 2.{28} The only material alteration of the definitionof“deadlyweapons”sinceter-ritorial days was the addition of two more modern weapons, switchblade knives and brass knuckles, in 1953. NMSA 1953, § 40A-1-13(B) (Vol. 6, 2d Repl.). The specific additionof the switchblade in alater statutory amendment is of particular significance to the issues in this case. Iffolding pocketknives already had been included in the catchall language that had existed for over half a century, the amend-ment that added the switchblade, a very specialized folding pocketknife, would havebeensuperfluous.ThisCourthaslongheld that we must avoid constructions of statutory amendments that “would render the change unnecessary and meaningless.” State v. Romero, 73 N.M. 109, 115, 385 P.2d 967, 970 (1963) (applying the prin-ciple to a change in criminal sentencing statutes). Indeed, if the statute made all pocketknives prohibited weapons without regard to their actual or intended use, the Court of Appeals need not have gone to the effort of trying to determine whether a quick-release butterfly knife qualifiedas a switchblade in State v. Riddall, 112 N.M. 78, 79-80, 811 P.2d 576, 577-78 (Ct. App. 1991). See id. at 82, 811 P.2d at 580 (determiningthatabutterflyknifefitthe

statutorydefinitionofa switchbladeandtherefore was a “deadly weapon” under the statute).C. Judicial Interpretations{29} Thefirstreportedappellateopin-ion to construe the statutory definitionof “deadly weapon,” interestingly in the context of its application to a pocketknife, was Territory v. Armijo, 7 N.M. 571, 577-78, 37 P. 1117, 1118 (1894). By that time, thedefinitionhadbeenslightlyamendedby the Deadly Weapon Act of 1887 to resemble even more closely the current wording, primarily by adding the adjective “dangerous” before the nouns “cuts” and “thrusts”:

Deadly weapons, within the mean-ing of this act, shall be construed to mean all kinds and classes of pistols, whether the same be a re-volver, repeater, derringer, or any kind or class of pistol or gun; any and all kinds of daggers, bowie knives, poniards, butcher knives, dirk knives, and all such weapons with which dangerous cuts can be given, or with which dangerous thrustscanbeinflicted,includingsword canes, and any kind of sharp pointed canes; as also slung shots, bludgeons or any other deadly weapons with which dangerous woundscanbeinflicted.

1887 N.M. Laws, ch. 30, § 8.{30} In Armijo, the defendant was charged with assault with a deadly weapon and was alleged to have used a pocketknife to “cut, stab, and wound” the victim. Id. at 574, 37 P. at 1117. Our Territorial Supreme Court held that the indictment was fatally flawedbecause it failed to set forthhow“the kind or character of the knife” was adeadlyweaponasdefinedinthestatute.Id. at 577, 37 P. at 1118. The Court con-cluded that while many ordinary knives may become deadly weapons by virtue of their use in a particular case, not all knives are automatically “deadly weapons” as a matter of law. Id. Of particular relevance to the issue before us, the Court addressed whether a pocketknife could be considered a per se deadly weapon under the statutory definition:

It is evident that the kind and character of the knife should be described as one of the class there-in mentioned. The word “such” qualifies thekindofknives,andthe knife used, to bring the offense within the act, must belong to that class. It was never intended by the


legislature to include in the class named ordinary pocket knives as deadly weapons.

Id. at 578, 37 P. at 1118. No case has ever overruled or even criticized Armijo’s sub-stantially contemporaneous holding that “[i]t was never intended by the legislature to include . . . ordinary pocket knives as deadly weapons.” Id.{31} It should not be surprising that the ArmijoCourtwouldfindunacceptablethenotion that the Legislature had intended to criminalize possession of an ordinary pocketknife in the samemanner as fire-arms or knives commonly carried for their usefulness as deadly weapons. Apparently, penknives and other folding pocketknives were commonly possessed by persons of all ages in the era when the statute was enacted. See, e.g., Sevailles, 1 N.M. at 124, 1855 WL at *3 (Brocchus, J., dissenting) (referring to knives “commonly in use” which “a gentleman would carry in his pocket for the harmless purpose of making pens”).{32} Mark Twain, America’s popular chronicler of nineteenth century frontier life, repeatedly mentioned the ubiquitous Barlow pocketknives in his classic Tom Sawyer and Huckleberry Finn books. See Mark Twain, The Adventures of Tom Saw-yer 30-31 (Harper & Brothers 1920) (1875) (“Mary gave [Tom] a brand-new ‘Barlow’ knife worth twelve and a half cents; and the convulsion of delight that swept his system shook him to his foundations. True, the knife would not cut anything, but it was a ‘sure-enough’ Barlow, and there was incon-ceivable grandeur in that . . . .”); id. at 276 (looking for buried treasure, “Tom’s ‘real Barlow’ was out at once, and he had not dug four inches before he struck wood”); Mark Twain, The Adventures of Huckle-berry Finn 70 (Harper & Brothers 1912) (1884) (stocking their canoe for a river trip, Tom and Huck “got an old tin lantern, and a butcher-knife without any handle, and a bran-new Barlow knife worth two bits in any store”); id. at 193 (“There was empty dry-goods boxes under the awnings, and loafers roosting on them all day long, whittling them with their Barlow knives . . . .”).{33} For over a century since Armijo was decided, numerous other cases have illuminated the issues before us in the course of construing the definition in avariety of contexts, most often in cases where the object was actually used as a weapon. In State v. Conwell, 36 N.M. 253, 255, 13 P.2d 554, 555 (1932), the defendant

was convicted by a jury of actual assault with a deadly weapon, not its mere pos-session. The alleged weapon used to beat the victim was a four-inch-long rock. Id. at 254, 13 P.2d at 555. The defendant argued beforethisCourtthattherewasinsufficientevidence to support a jury finding that the rock used on the victim’s face was a deadlyweapon,asdefinedinthestatutorycatchall of “bludgeons or any other deadly weapons with which dangerous wounds can beinflicted.”Id. at 255, 13 P.2d at 555. In language that is instructive here, Conwell held that “[w]here the instrument used is not one declared by the statute to be a deadly weapon, it is ordinarily a question for the jury to determine whether it is so, considering the character of the instrument and the manner of its use.” Id. The Court noted with approval that the rock had been passed among the jurors, “enabling them to know its dimensions, weight, sharpness ofitsedges,andpotentialityforinflictionof dangerous wounds from the manner in which it was claimed to have been used.” Id. at 255-56, 13 P.2d at 556.{34} In State v. Mitchell, 43 N.M. 138, 139-40, 87 P.2d 432, 433 (1939), the defen-dant was charged with assaulting a victim “with a certain deadly weapon, to-wit: a certain knife, with which dangerous cuts could be given, and with which dangerous wounds and thrusts could be inflicted.”Mitchell endorsed Conwell’s application of the “well settled rule” that where an instrumentisnotspecificallynamedinthestatute as a deadly weapon, whether it is an unlawful deadly weapon is a fact ques-tion for the jury to resolve by considering the instrument’s use by an accused and the other circumstances of a particular case. Id. at 140, 87 P.2d at 433. {35} This approach has been recognized and applied repeatedly over the years in a long line of opinions by the courts of this State up to the present day. See, e.g., State v. Martinez, 57 N.M. 174, 176, 256 P.2d 791, 792 (1953) (holding that it was for the jury to determine whether a knife with a two-inch blade was a deadly weapon as used by the defendant in the circumstances of the case); State v. Gonzales, 85 N.M. 780, 781, 517 P.2d 1306, 1307 (Ct. App. 1973) (concluding that because the statute does notspecificallydefineatiretoolasadeadlyweapon, the determination whether the tool was a deadly weapon in the context of a robbery prosecution was for the jury).{36} Although fewer in number than the actual use cases, the simple possession cases follow a similar approach, holding the

jury must determine whether the accused had the “intent to carry or to use the [un-listed] object as a weapon.” Blea, 100 N.M. at 239, 668 P.2d at 1116. In Blea, the Court of Appeals reversed a conviction for simple possession of a voltage tester, even though it could have been used to stab someone:

A voltage tester, or other utilitar-ian tool or object is not per se a weapon; it may, however, become a weapon by its actual use . . . or by the purpose for which it is car-ried.Hence, a factualfinding asto defendant’s intent or purpose in carrying the object is necessary to determine guilt or innocence of an accused charged with carrying a concealed article not expressly listed as a deadly weapon . . . .

Id. (internal citations omitted); see also An-derson, 2001-NMCA-027, ¶ 32 (reversing a conviction for carrying a stick as a deadly weapon and thereby committing the offense of aggravated stalking).

[W]hen the object or instrument in question is an unlisted one that falls within the catchall language of Section 30-1-12(B), the jury must be instructed (1) that the defendant must have possessed the object or instrument with the intent to use it as a weapon, and (2) the object or instrument is onethat,ifsoused,couldinflictdangerous wounds.

Id.{37} In short, our cases hold that in an actual use case involving an unlisted weapon, thejurymustfind,amongotherelements, that an object was actually used as a weapon and that it was capable of causing the wounds described in the statute. In a simple possession case, the jury must findthattheobjectwaspossessedwithin-tent to carry it as a weapon and that it was capable of causing the wounds described in the statute. These are determinations that cannot be ruled on by a trial court as a matter of law and taken from the jury’s consideration, no matter how obvious the existence of any essential element of an offense may seem. It is impermissible to enter a “partial directed verdict” against a defendant because it is “the fundamental right of a criminal defendant to have the jury determine whether each element of the charged offense has been proved by the state beyond a reasonable doubt.” State v. Orosco, 113 N.M. 780, 786, 833 P.2d 1146, 1152 (1992) (determining that a trial court had not removed an essential element of an


offense from a jury’s consideration in a sex offense prosecution).{38} We have found no New Mexico case that has ever interpreted the “deadly weapons”definitionalstatuteinconsistentlywith this large body of precedent. Neither court below ever addressed the statutory history or the relevant New Mexico case law interpreting and applying the “deadly weapon”definition.Instead,theCourtofAppeals cited this Court’s opinion in State v. Baca, 114 N.M. 668, 674, 845 P.2d 762, 768 (1992), in support of its position that the public policy of ensuring safety for cer-tain segments of the population eliminated any “use requirement” in certain weapons possession crimes. Nick R., No. 27,145, slip op. at 4. Neither Baca nor any other precedent has stood for that proposition. The issue in Baca had nothing to do with thestatutorydefinitionof“deadlyweapon”or its proof requirements. The only issue in Baca was whether a defendant could avail himself of a duress defense against a charge of intentional possession of a con-ceded deadly weapon, a purposeful weapon known as a “shank,” by a prison inmate who claimed he needed to arm himself for self-defense. 114 N.M. at 673-74, 845 P.2d at 767-68.{39} Similarly, State v. Padilla, 1996-NMCA-072, 122 N.M. 92, 920 P.2d 1046, didnotanalyzethestatutorydefinitionof“deadlyweapon.” Instead, it specificallyaddressed whether stealing and carrying away a deadly weapon constituted “arm-ing” oneself during a burglary. Id. ¶ 1. The opinion therefore never had occasion to address what proof would have been necessary if there had been an issue as to whether the item possessed met the statu-torydefinitionofadeadlyweapon.{40} New Mexico’s case law is consis-tent with that of other jurisdictions, which routinely distinguish between legislatively designated per se deadly weapons and a vast array of tools and other ordinary items that could become deadly weapons if used offensively. See, e.g., Grass v. People, 471 P.2d 602, 605 (Colo. 1970) (shoe as deadly weapon); Timm v. State, 644 N.E.2d 1235, 1238-39 (Ind. 1994) (plastic flashlight);Johnson v. State, 455 N.E.2d 932, 936 (Ind. 1983) (automobile); State v. Kelly, 571 A.2d 1286, 1292-93 (N.J. 1990) (carpet-cutting razor); People v. Elijah B., 813 N.Y.S.2d 405, 406 (N.Y. App. Div. 2006) (work boots); People v. Buhagiar, 713 N.Y.S.2d 114, 115 (N.Y. App. Div. 2000) (pestle); Bald Eagle v. State, 355 P.2d 1015, 1017 (Okla. Crim. App. 1960)

(beer bottle); Strahan v. State, 284 P.2d 744, 749 (Okla. Crim. App. 1955) (metal automobile window crank); State v. Bar-rientos, 444 N.W.2d 374, 377 (S.D. 1989) (race car); Bui v. State, 964 S.W.2d 335, 342 (Tex.Crim.App. 1998) (Duraflamelog); Broom v. State, 242 S.W. 236, 238 (Tex. Crim. App. 1922) (breast yoke of a wagon); State v. Bodoh, 595 N.W.2d 330, 333 (Wis. 1999) (dog). Our own actual use cases have included such situational deadly weapons as a human mouth, a trivet, a brick wall, and a screwdriver. See Neatherlin, 2007-NMCA-035, ¶¶ 13, 15 (reviewing precedents and concluding that the statu-tory catchall language “is broad enough to include an individual’s mouth” in the factual context of a particular case).{41} ThisCourtrecentlyreaffirmedthelong-standing approach of New Mexico case law “that it effectuates the legislative intent to give Section 30-1-12(B) a narrow construction.” Traeger, 2001-NMSC-022, ¶ 12. In Traeger, we held that because a baseballbatwasnotspecificallynamedinthe statute as a deadly weapon per se, it was for the jury to decide whether a baseball bat wassufficientlydangeroustobea“deadlyweapon” when used in an aggravated bat-tery. Id.; see also ¶ 26 (“[W]e retain the rulethatiftheitemisnotspecificallylistedin Section 30-1-12(B), then a jury should make that determination considering the character of the instrument and manner of its use.”).{42} Of particular significance to thecase at bar, Traeger cautioned that if this Court were to make a baseball bat a per se deadlyweaponunder the general defini-tional statute in the Criminal Code, it would have far-reaching implications for other statutes and would criminalize the mere carrying of a bat in a variety of situations. Id. ¶ 15. “We believe that to criminalize the carrying of a baseball bat, without a jury findingthatthebaseballbatwasadeadlyweapon and that the baseball bat was in fact being carried because it could be used as a weapon, is incongruent with New Mexico law.” Id.{43} Traeger’s concerns apply with equal force here. If we were to hold that a pocketknife is a per se deadly weapon, it would mean a person who carried one at work, on a fishing trip, or virtually anywhere else would commit the criminal offense of carrying a deadly weapon, in vio-lation of Section 30-7-2. It would increase that statute’s potential six-month penalty to a potential jail sentence of up to a year if the defendant took a bus to work while carrying

the pocketknife, under the provisions of Section 30-7-13. And in this case, if Nick’s father had gone to pick his son up at school or had gone to a parent-teacher conference with his own utilitarian work knife in his pocket, he could have been imprisoned and lost his civil rights for the felony of carry-ing a deadly weapon on school premises, under the terms of the same statute that was applied to Nick below. Indeed, the same far-reaching theory could result in criminal liability for innocently possessing any of the tools, other objects, and even body parts that have been found to constitute deadly weapons when used offensively. We simply cannot attribute to the Legislature any such unexpressed objectives in enacting New Mexico’s deadly weapons statutes. D. School Security Concerns{44} In 1994, when the Legislature en-acted the statute making it a felony to pos-sess deadly weapons on school grounds, it neithercreatedanewdefinitionof“deadlyweapons” for use in school cases nor amended in any way the existing general definitionintheCriminalCode.Cf. State v. Salazar, 1997-NMCA-043, ¶ 9, 123 N.M. 347, 940 P.2d 195 (“We believe the legislature intended [in Section 30-7-1] that itsdefinitionofcarryingadeadlyweaponwould apply to all statutes making it a crime to carry a deadly weapon, whether concealed or on school premises.”) Doe v. State ex rel. Governor’s Organized Crime Prevention Comm’n, 114 N.M. 78, 80, 835 P.2d 76, 78 (1992) (stating that the Legislature is presumed to know about existing laws and cannot be inferred to have enacted a law inconsistent with an existing law). The Legislature simply expanded the existing criminal consequences for carrying a deadly weapon, from petty misdemeanor to fourth-degree felony penalties, if the crime was committed on school grounds. It expressed no intention whatsoever to changethedefinitionofadeadlyweapon.{45} We are sensitive to the concern expressed by the State that “the social problem of deadly weapons in the schools is certainly more formidable and intrac-table than it was in 1855.” This Court, however, must be careful not to intrude on the exclusive legislative prerogative to take those kinds of arguments into account in deciding whether an existing statute should be changed. Whether or not concerns of security arguably might now justify criminalizing the simple possession of potentially dangerous utilitarian tools on school grounds, “this Court is not the entity charged with the modernization of the rel-


evant statute.” Traeger, 2001-NMSC-022, ¶ 14 (declining to add a baseball bat as a modern expansion of the historical blud-geonincludedinthedefinition).{46} Nor is anything in this opinion intended to impair the existing authority of school authorities to promulgate and enforce administrative security measures of the kind the Taos School Superinten-dent expeditiously employed in this case beforetheDistrictAttorneyfiledchargesunder the criminal statutes. See, e.g., Taos High School, Student Behavior Policy, in Handbook §§ IV(A)-(B)(1), VI(A)(2)(p)-(q) (2008) (listing both possession of a weapon of any kind and possession of a pocketknife among specific examples ofbehavior that may result in school disciplin-ary action); Santa Fe Public Schools, Board of Education Policy Manual §§ 336-3 to -4, 347-1 (2002) (prohibiting possession of“anyfirearm,knife...orotherobject,even if manufactured for a nonviolent pur-pose, that has a potentially violent use, or any ‘look-a-like’ object that resembles an object that has a potentially violent use, if, under the surrounding circumstances, the purpose of keeping or carrying the object is for use, or threat of use, as a weapon”);

Albuquerque Public Schools, Student Be-havior Handbook: 2008-2009 11, 25 (2008) (prohibiting possession of, among other items,“afirearm,anytypeofgun,knife,club . . . that may cause or is intended to cause injury or death”). The Legislature has specificallymandatedminimumone-yearexpulsions of students who knowingly bring to school anyfirearms, explosives,or incendiary devices. NMSA 1978, § 22-5-4.7 (1995).{47} “[P]ublic school officials [have]an effective means of disciplining unruly or disruptive pupils in an administrative fashion.” State v. Doe, 92 P.3d 521, 525 (Idaho 2004); see also In re Julio L., 3 P.3d 383, 385 (Ariz. 2000) (en banc) (“[N]ot every violation of public decorum or of school rules gives legal cause for criminal adjudication . . . .”).{48} Whatever the Legislature or school officialsmaychoosetodoindefiningandsanctioning weapons violations in their respective spheres of authority, the courts are simply not invested with substantive policy-making authority to create those policies. It is the duty of the judicial branch to enforce the lawful policies established by the political branches as they are written

and intended. In this case, we follow a long and consistent interpretation of legislative intent in reaffirming that ourLegislaturehasnotchosentodefineanordinarypock-etknife as a per se deadly weapon, without regard to either its actual or its intended use.IV. CONCLUSION{49} The Children’s Court erred in denying Petitioner a jury determination of whether he intended to carry his pock-etknife as a deadly weapon, as that term isdefined in theapplicableNewMexicostatutes, and the Court of Appeals erred in holding that he had no right to such a jury resolution. We reverse the decision of the Court of Appeals and remand to the Children’s Court for further proceedings in accordance with this Opinion.{50} IT IS SO ORDERED. CHARLES W. DANIELS, Justice

WE CONCUR:EDWARD L. CHÁVEZ, Chief JusticePATRICIO M. SERNA, JusticePETRA JIMENEZ MAES, JusticeRICHARD C. BOSSON, Justice



Opinion Number: 2009-NMSC-051

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusDANNy CORREA,

Defendant-Appellant.No. 31,455 (filed: September 29, 2009)

CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS NEIL C. CANDELARIA, District Court Judge

opinion

richard c. Bosson, Justice

{1} We accepted certification from the Court of Appeals to address whether the DetoxificationReformAct(DRA),NMSA1978, §§ 43-2-1.1 to -23 (1977, as amended through 2005), prohibits criminal prosecu-tion for breaches of the peace when the suspect’s behavior amounts to the normal manifestations of intoxication. For reasons discussed more fully below, we conclude that the DRA does not preclude the State from charging an accused with disorderly conduct when the accused’s conduct oth-erwise satisfies the statutory elements ofthe charge, regardless of whether the of-fender is intoxicated. However, because theevidenceinthiscasewasinsufficienttosupport a conviction for disorderly conduct, we reverse.BACKGROUND{2} On September 30, 2005, at approxi-mately 10 p.m., Albuquerque police of-ficersLucasTownsend andKellyMaesresponded to a call from Defendant’s neigh-bor, Robert Root, who alleged that Defen-dant had made death threats against him. After interviewing Root, police walked across the street to Defendant’s home and knocked on the door. When Defendant

HUGH W. DANGLERChief Public DefenderADRIANNE R. TURNER

Assistant Appellate DefenderSanta Fe, New Mexico

for Appellant

GARy K. KINGAttorney GeneralANDREA SASSA

Assistant Attorney GeneralSanta Fe, New Mexico

for Appellee

answered the door, Officer Townsend identifiedhimself as apoliceofficer andstated that he wanted to talk to Defendant about the incident with Root. Defendant shut and locked the metal security door and stated that he did not want to speak with the officers.OfficerTownsendmadeasecondrequest for Defendant’s cooperation, which wasrefused.OfficerTownsendtestifiedthatDefendant raised his voice, used profanity, andinstructedtheofficerstoleave.Theof-ficersstatedthatDefendantappearedtobe“heavily intoxicated” based on his slurred speech, bloodshot and watery eyes, and the smell of alcohol on his breath.{3} At some point during this initial inter-action, Defendant was joined at the front door by his friend, Marty Harrison, who also began making obscene gestures and yellingprofanityattheofficersthroughthemetalsecuritydoor.Theofficersretreatedto the side of Defendant’s house. As a result ofDefendant’saggressivebehavior,OfficerTownsend was concerned for Root’s safety and feared that Defendant might retaliate against Root for calling the police. The officers determined thatDefendant andHarrison should not be left alone and de-cidedtocalladditionalofficerstothescene.Approximatelysixofficersarrivedandtookpositions in Defendant’s front driveway and in the backyard of a house adjacent to

Defendant’s home.{4} Over the next three hours, a stand-off ensuedwhiletheofficersmaintainedtheirwatch. During that time, Defendant came out of the house two or three times. On each occasion, he would yell at the of-ficers and then run back inside.1 During these incidents, Defendant would swear atthepoliceofficers,tellthemtoleavehisproperty, and make statements apparently designedtoenticetheofficerstofight.Afterafewhours,theofficersweresatisfiedthatDefendant and Harrison had calmed down and left the scene without arresting either man.{5} Nearly nine months later, Defendant was charged with one count of disorderly conduct as a result of this incident. Defen-dant was found guilty in the metropolitan courtandsentencedtofifteendaysinjail.2 Defendant appealed to the district court, and after a de novo bench trial, that court also found Defendant guilty. Defendant ap-pealed again to the Court of Appeals, chal-lenging only whether the evidence was suf-ficienttosupporthisconviction.ThatCourtsua sponte raised the issue before us on certification—whether theDRA removesfrom criminal prosecutions “breaches of the peace otherwise punishable as petty misdemeanor disorderly conduct when the suspect’s behavior amounts to the normal manifestations of intoxication.”DISCUSSIONThe Detoxification Reform Act and Dis-orderly Conduct{6} The DRA has a long history, and al-though it has been substantially revised over the years, its central purpose remains largely unchanged—to study the problems of alcoholism and to promote treatment and rehabilitation of alcoholics. See § 43-2-5. At issue in this case is Section 43-2-3 of the DRA, which states:

It is the policy of this state that intoxicated and incapacitated persons may not be subjected to criminal prosecution, but rather should be afforded protection. It is further the policy of this state that alcohol-impaired persons and drug-impaired persons should be afforded treatment in order that they may lead normal lives as productive members of society.

The Court of Appeals questions whether

1Defendant’s comments allegedly included, “Hey ass hole you want some of me, f---ing punk bitch!” and “Bring it on, you want some f--- head!” and “Take off your badge!”2Defendant served his entire sentence prior to this appeal.


this section prohibits the State from pros-ecuting intoxicated persons for disorderly conduct pursuant to NMSA 1978, Section 30-20-1(A) (1967)3, and we are asked to construe the relationship between these two legislative enactments. Our research into the development of these two statutes has proved particularly helpful to understand-ing the effect of the modern DRA on New Mexico’s current disorderly conduct stat-ute. Therefore, we begin with an historical perspective of these two laws. “Drunk and Disorderly”{7} From New Mexico’s earliest days, drunkenness and disorderly conduct were closelyintertwined,andsomeofthefirstlaws on record for the Territory address drunkenness and alcoholism. In 1855, for example, a person could be adjudged an “habitualdrunkard”basedontheaffirma-tion of six men, and upon such determi-nation, the district court could appoint a guardian or a trustee to manage both the person and his estate. See 1856 N.M. Laws, ch. 11, §§ 1-6. In addition, the Territorial Legislature passed an Act Against Persons WhoDisturbGoodOrder,definedas

[e]very inhabitant within the limits of this Territory who shall appear drunk, or in their sound mind shall, within the plazas or streets, use, in loud voice, scan-dalous or obscene words, or may remain prostrate in the streets, or in any other public place, if they are not taken care of by some friend or relation who shall take them immediately to their houses, or prevent them from committing such scandal. Any person who shall commit such offences shall be immediately taken by any of-ficer...who,ifinhisjudgmentitshould be necessary, may require the aid of the citizens, to place such delinquents in the county jail, from which they shall be set atliberty,forthefirstoffense,thefollowing day, having to pay the

usual jail fees.4

Id. § 1.{8} In 1891, our Territorial Legislature prohibited “Drunkenness and Disorderly Conduct” and declared that “[i]t shall be unlawful for any person to become intoxi-cated or disorderly, and any person found in such state shall upon conviction thereof beforeajusticeofthepeacebefinedinasumofnot less thanfivedollarsandnotmorethantwenty-fivedollars.”1891N.M.Laws, ch. 9, § 9. This enactment remained in force and without substantial change until 1963,5 when the Legislature separated “disorderly conduct” from “drunkenness” as distinct offenses in the Criminal Code. See NMSA 1953, § 40A-20-1(A) (Vol. 6, 2dRepl.) (defining “disorderly conduct”as “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace”); NMSA 1953, § 40A-20-2 (Vol. 6, 2d Repl.) (“Drunkenness consists of being so intoxicated in a public place that the person has become disorderly or is unable to care for his own safety. Whoever commits drunkenness is guilty of a petty misdemeanor.”). “Drunkenness” remained a misdemeanor offense for an additional ten years when, in 1973, the Legislature repealed Section 40A-20-2 (being 1963 N.M. Laws, ch. 303, § 20-2), as part of the newlyenactedDetoxificationAct.See 1973 N.M. Laws, ch. 331, § 8.The Detoxification Act {9} In 1941, the Legislature created the Commission on Alcoholism to study the problems of alcoholism and to evaluate the methods and facilities available for treat-ment and rehabilitation. See 1949 N.M. Laws,ch.114,§3(codifiedatNMSA1953,§ 46-12-3 (Vol. 7, Repl.)). In addition, the Legislature authorized the district courts to commit an alcoholic to an institution for up to three years if he was found to be a “ha-bitual drunkard, chronic alcoholic, . . . any personwhohasbeenfivetimesconvictedof intoxication . . . or who is a person who has been legally determined to have lost the

power of self control from the intemperate use of spirituous or intoxicating liquors.” 1949N.M.Laws,ch.114,§7(codifiedatNMSA 1953, § 46-12-7 (Vol. 7, Repl.)).{10} In 1973, the Legislature passed the DetoxificationAct,whichsignaledashiftin the way the state addresses alcoholism. NMSA 1953, §§ 46-14-1 to -7 (Vol. 7, Repl., 1975 Pocket Supp.). Notably, the Legislature repealed Section 40A-20-2 and decriminalized “drunkenness.” See 1973 N.M. Laws, ch. 331, § 8.6 Rather than continuing to punish alcoholism, the Actauthorizedpeaceofficerstotransportintoxicated persons to their residences, or to a health care facility or jail—in that order, depending on the circumstances—until the intoxicated person became orderly. Section 46-14-3. The Act noted, however, that “[a]n intoxicated person held in protective cus-tody at a jail or transported to a health care facilityundertheDetoxificationActshallnot be considered to have been arrested or charged with any crime.” Section 46-14-7(B).{11} This shift continued in 1977, when the Legislature amended the Act creating the Commission on Alcoholism7 to add a new section detailing the “policy of the State regarding alcoholism,” which read:

It is the policy of this state that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their con-sumption of alcoholic beverages but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society.

NMSA 1953, § 46-12-2.1 (1977) (emphasis added). {12} The following year, in 1978, the Compilation Commission recompiled the New Mexico Statutes and combined the DetoxificationAct,Sections46-14-1to-7,with the Act authorizing the Commission on Alcoholism, Sections 46-12-1 to -13, and recodifiedthemtogether,see NMSA 1978, §§ 43-2-1.1 to -23 (2005), as the DRA.

3Section 30-20-1(A) states that disorderly conduct consists of “engaging in violent, abusive, indecent, profane, boisterous, unreason-ably loud or otherwise disorderly conduct which tends to disturb the peace.”4Section3clarifiedthat“[t]heforegoingsectionscomprise,inthesamemanner,womenwhoappearingreatprejudicetosociety,com-mitting such scandals, having some consideration for their sex.” It is not clear from the statute what this last phrase was to mean.5During Prohibition from 1920 to 1933, our Legislature declared it a misdemeanor to “have, possess, or in any wise use any intoxicating liquor of any kind . . . at any dance, ball, fandango, or any public gathering, meeting or convention.” 1929 N.M. Laws, ch. 37, § 9.6The Act did not address or modify “disorderly conduct.” See § 40A-20-1.7In 1976, the Legislature abolished the Commission on Alcoholism and created in its place an Alcoholism Division Within the Hospitals and Institutions Department. We retain our shorthand name for the act for consistency when referring to the origin of NMSA 1953, §§ 46-12-1 to -13 (Vol. 7, Repl.). See 1976 N.M. Laws, ch. 9, § 14 (repeal Sections 46-12-1 and -2).


{13} Notably, the Legislature amended the DRA’s policy statement in 2005 and removed language that would have been helpful to resolving the present dispute. Rather than stating that a person “may not be subjected to criminal prosecution because of the consumption of alcohol,” the policy statement now reads:

It is the policy of this state that intoxicated and incapacitated persons may not be subjected to criminal prosecution, but rather should be afforded protection. It is further the policy of this state that alcohol-impaired persons and drug-impaired persons should be afforded treatment in order that they may lead normal lives as productive members of society.

NMSA 1978, § 43-2-3 (2005).{14} Under the pre-2005 version of the Act, it was clear that the Legislature intended to eliminate criminal prosecution for the act of consuming alcohol, and to prohibit statutes where drunkenness is an element of the offense.8 The Act is less clear following the 2005 amendment, largely due to the Legislature’s substituted state-ment that “intoxicated and incapacitated persons may not be subjected to criminal prosecution.” Taken literally, this language would suggest that a person could not be criminally prosecuted for any offense—including murder—if the accused happened to be intoxicated at the time of the crime. However, this language must be viewed in the context of the overarching amendments to the policy statement. {15} The 2005 amendment broadened the scope of the DRA to include substance abuse as well as alcoholism. In conjunc-tion with this change, it was necessary to remove the language “because of the consumption of alcohol” from the policy statement, although the Legislature could havemodifiedthelanguagetomakeclearerits intent.9 Accordingly, it appears that the

change in the policy statement indicates the Legislature’s intent to address a broader category of “substance abuse” through the DRA, rather than limiting it to intoxication. Nothing else in the amended DRA suggests an intent to make a radical change in exist-ing criminal law.{16} An expansive interpretation of the statement “intoxicated and incapacitated persons may not be subjected to criminal prosecution” would contravene longstand-ing New Mexico law. For example, a literal interpretation would mean that an accused would not be criminally liable for murder, burglary, assault, or battery if he was in-toxicated when he committed the offense. However, our courts and our Legislature have never suggested that voluntary intoxi-cation could provide wholesale immunity to the accused, or preclude the State from pursuing criminal sanctions. See, e.g., State v. Nozie, 2009-NMSC-018, ¶ 41, 146 N.M. 142, 207 P.3d 1119 (stating that intoxication maybe raised as an affirmative defensetonegatespecificintent).Suchapositionwould have far-reaching implications and would dramatically alter the Criminal Code inNewMexico.Wefindnoindicationthatthe Legislature intended to do so by way of textual changes to a mere policy statement definingthepurposeoftheDRA.{17} The narrower issue before us is to determine whether the Legislature, through the DRA, intended to “preclude the han-dling of drunkenness under any of a wide variety of petty criminal offense statutes, such as loitering, vagrancy, disturbing the peace, and so forth.” Unif. Alcoholism and Intoxication Treatment Act, 9 U.L.A. 229, 230 (1999). The historical relationship be-tween drunkenness and disorderly conduct suggests that in earlier years the Legislature specificallyintendedtopunishdisorderlyconduct resulting from intoxication. How-ever, as the State’s policy on alcoholism evolved, so too did the relationship be-tween disorderly conduct and drunkenness.

WhentheLegislatureclassified“disorderlyconduct” and “drunkenness” as separate offenses in 1963, it signaled an end to the century-old relationship between the two offenses, perhaps in recognition that a person may behave in a disorderly manner without consuming alcohol and conversely that just because a person is intoxicated—even in a public place—does not make him disorderly.{18} It is significant that theLegisla-ture repealed only “drunkenness” when itenactedtheDetoxificationActin1973,and did not modify the disorderly conduct statute. When the Legislature stated that “alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages,” it made clear that citizens should not be criminally punished solely for being intoxicated. Section 43-2-3 (em-phasis added). Therefore, peaceful public drunkenness could not be criminally pun-ished, either as drunkenness or any other petty misdemeanor, including disorderly conduct.{19} However, the DRA does not pur-port to prohibit punishment for conduct that isotherwisecriminalorotherwisequalifiesas disorderly conduct merely because the offender may be intoxicated. While intoxi-cation itself is not criminal, any criminal offenses committed while an accused is intoxicated are still punishable under the Criminal Code. The DRA does not indicate that intoxication can ever be a mitigating factor,anaffirmativedefense,oragroundfor dismissal when a defendant’s conduct is also disorderly within the meaning of Sec-tion 30-20-1(A). Therefore, we conclude that the DRA does not remove disorderly conduct from criminal prosecution merely because an accused is intoxicated, as long as the statutory elements of the charge are satisfied.An accused’s intoxication can-not alone form the basis for the charge; the elements of disorderly conduct must

8DrivingwhileintoxicatedisspecificallyexemptedfromtheAct.See NMSA 1978, § 43-2-4(C) (1989) (“Nothing in this section af-fectsanylaw,ordinance,resolutionorruleagainstdrivingundertheinfluenceofalcoholordrugsorothersimilaroffenseinvolvingthe operation of a vehicle, aircraft, boat, machinery or other equipment or regarding the sale, purchase, dispensing, possessing or use of alcoholic beverages at stated times and places or by a particular class of persons.”).9Interestingly, in 1989, the Legislature created a curious two-year window that permitted criminal prosecution for the consumption of alcohol. The Legislature amended the policy statement to read: “It is the policy of this state that alcoholics and intoxicated persons may be subjected to criminal prosecution because of their consumption of alcoholic beverages only under circumstances of chronic public intoxication and, whenever possible, should be afforded a continuum of treatment . . . . ” NMSA 1978, § 43-2-3 (1989) (emphasis added); see 1989 N.M. Laws, ch. 378, § 1 (Vols. 6-9, 1989 Repl. Pamp.). However, this change was enacted with a sunset clause and automatically reverted back to the previous language used in the 1977 policy statement—prohibiting criminal prosecution because of the consumption of alcohol—two years later in 1991. See NMSA 1978, § 43-2-3 (1989, repealed effective July 1, 1991); 1989 N.M. Laws, ch. 378, § 2 (Vols. 6-9, 1989 Repl. Pamp.).


all be proven. Accordingly, because we perceivenoconflictbetweentheDRAandthe Criminal Code, we proceed to evaluate Defendant’s challenge to his conviction for disorderly conduct.Sufficiency of the Evidence{20} Defendant challenges the suf-ficiency of the evidence to support his conviction for disorderly conduct.

Substantial evidence review re-quires analysis of whether di-rect or circumstantial substantial evidence exists and supports a verdict of guilt beyond a reason-able doubt with respect to every element essential for conviction. We determine whether a rational factfinder couldhave found thateach element of the crime was established beyond a reasonable doubt.

State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted). “The reviewing court does not weigh the evidence or substitute its judgment for thatof the factfinderas longas there issufficientevidencetosupporttheverdict.”State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789.{21} Disorderly conduct is a petty mis-demeanor, and occurs when an accused engages in “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace.” Section 30-20-1. “This statutory provision has two elements: the conduct itself and the tendency of the conduct to disturb the peace.” State v. Salas, 1999-NMCA-099, ¶ 12, 127 N.M. 686, 986 P.2d 482. Both must be present. There is no question that Defendant’s conduct satisfiesthefirstelement:hisconductrea-sonably could be seen as abusive, indecent, profane, boisterous, or unreasonably loud. The question for us to determine is whether that conduct could also be seen as tending to disturb the peace.{22} Our Legislature has not definedwhat it means to “disturb the peace.” Our courts have stated that “the standard is whether defendant’s conduct tends to dis-turb the public peace.” State v. James M., 111 N.M. 473, 476, 806 P.2d 1063, 1066 (Ct. App. 1990). “Conduct which tends to disturb the peace is that conduct ‘which is inconsistent with the peaceable and orderly conduct of society.’” Id. (quoting State v. Oden, 82 N.M. 563, 565, 484 P.2d 1273, 1275 (Ct.App. 1971)).Wehavedefined“disturbing the peace” as “‘a disturbance of public order by an act of violence, or by any

act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.’” State v. Florstedt, 77 N.M. 47, 49, 419 P.2d 248, 249 (1966) (quoting People v. Most, 64 N.E. 175, 177 (N.Y. 1902)). We have construed the statute narrowly and, “[u]nless the acts complained of fall clearly within the statute, they are not disorderly.” Id.{23} The State argues that Defendant disturbed the peace in two ways: (1) by hisuseof“fightingwords”directedtowardthepoliceofficers,and(2)byincitinghiscompanion, Harrison, to breach the peace. As we discuss in more detail below, the evidenceattrialwasinsufficienttosupportDefendant’s conviction on either ground.Defendant’s Conduct Toward the Police{24} The State argues that Defendant disturbed the peace by verbally attacking the police officers.TheState posits thatDefendant’s provocative remarks amounted to fightingwords,which “by their veryutteranceinflictinjuryortend to incite an immediate breach of the peace.’” James M., 111 N.M. at 476, 806 P.2d at 1066 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)) (emphasis added). “Fight-ing words” are measured by their likelihood of provoking an average person to react violently, although it is not necessary that the person who is insulted actually react. Id.{25} Our courts have upheld disorderly conduct convictions based on the use of provocativefightingwordsaddressedtoanon-policeofficer.See id. at 477, 806 P.2d at 1067 (upholding the defendant’s disor-derly conduct conviction where the defen-dant was arguing with a third party, yelling provocativefightingwords,andappearedtobereadytofight).However,ourCourtof Appeals has previously held that police officers are not “average persons”whenconsidering the likelihood of provocation, because“‘[p]oliceofficers,by thenatureof their training, are generally expected to have a higher tolerance for offensive conduct and language.’” State v. Hawkins, 1999-NMCA-126, ¶ 11, 128 N.M. 245, 991 P.2d 989 (quoting James M., 111 N.M. at 477, 806 P.2d at 1067). We follow this settled precedent in deciding the present dispute.{26} It is undisputed that Defendant yelled vulgar and profane statements at the police over the course of three hours. How-ever, our Court of Appeals has previously considered similar conduct, and held that

“[s]creaming obscenities and yelling ‘get the hell out of the house’ do not amount to ‘fighting’words,particularlywhentheyareaddressedtopoliceofficers,whoaresup-posed to exercise restraint.” State v. Wade, 100 N.M. 152, 155, 667 P.2d 459, 462 (Ct. App. 1983) (citation omitted) (reversing the defendant’s conviction for abusing a po-liceman pursuant to NMSA 1978, Section 30-22-1(D) (1981), when the defendant screamed obscenities at police, who entered the defendant’s home in response to a do-mestic violence call by his wife); see also Hawkins, 1999-NMCA-126, ¶¶ 4, 15 (re-versing the defendant’s disorderly conduct conviction for yelling at the police, “This isn’t a f---ing crack house” and “Get out of my f---ing yard,” because “New Mexico is amongthestatesthatholdspoliceofficersto a higher standard of tolerance for abuse or offensive language.”). “Usually, argu-ingwithapoliceofficer,evenwhenusingprofane and insulting words, will not be enough to constitute disorderly conduct, unless the words are coupled with threat-ening behavior.” 12 Am. Jur. 2d Breach of Peace and Disorderly Conduct § 32 (2009) (internal citations omitted); see also Salas, 1999-NMCA-099, ¶¶ 20, 37 (upholding the defendant’s conviction for disorderly con-duct where he spoke loudly, used profanity, andclenchedhisfistsashewalkedtowardanofficer);Hawkins, 1999-NMCA-126, ¶ 19 (distinguishing Salas because the defen-dant“didnotclenchhisfistsorotherwiseyellthreats”attheofficer).{27} In the present case, the record does not reveal any threatening conduct accom-panying Defendant’s verbal insults toward the police. During the initial encounter, Defendant closed and locked a metal screen doortoseparatehimselffromtheofficersand to bar access to the inside of his home. The State did not present any evidence in-dicating that Defendant or Harrison moved to open the locked metal door or attempted to physically confront the officers.Afterthis brief, thirty-second initial encounter, the record indicates that theofficers hadonly two or three short interactions with Defendant over the next three hours. The officerstestifiedthatDefendantcameoutofthehousetoyellattheofficers,butwouldadvance only as far as the porch before quickly retreating inside to avoid arrest. Defendant’s conduct, while cowardly and surely irritating, posed no threat to the of-ficerspresentatthescene.{28} The State did not argue or other-wise present evidence that Defendant’s conduct posed any actual threat of violence


totheofficers.OfficerMaestestifiedthattheofficers“thoughtweweregoingtobethreatened, there was a possibility to be harmed.”10 However, in a similar case, the Court of Appeals reasoned that an officer’sperception thatasuspectmight become combative was insufficient to support a disorderly conduct conviction. State v. Doe, 92 N.M. 100, 102, 583 P.2d 464, 466 (1978) (reversing the defendant’s disorderly conduct conviction where he arguedwithpoliceofficersduringtrafficstop but was not combative and “no act of violence was attempted”).{29} It is also significant thatDefen-dant’s taunting, even though his words may have been threatening, occurred at a distance. The amount of provocation created by Defendant’s words might have been greater if Defendant were closer to the officers. In this case,Defendantrefused to leave his porch, indicating that he feared or sought to avoid actual con-frontationwiththeofficers.Indeed,OfficerTownsendtestifiedthattheofficerswerewaiting for Defendant to come outside so that they could place him under arrest for disorderly conduct. If Defendant had advanced beyond his porch or physically threatenedtheofficers, theywouldhaveseized upon the opportunity to arrest him.{30} We are not indifferent to the of-ficersinthiscase.Theirvaluableroleinconfronting situations of conflict oftencarries with it the unfortunate consequence ofverbalabuse.Theofficersinthissitu-ation exercised admirable restraint in the face of Defendant’s “rude, obnoxious, and . . . vulgar speech.” However, it is because of their degree of skill, training, andexperiencethatwerelyonofficersnotto react to verbal provocation, at the risk ofescalatingasituationrifewithconflict.Accordingly, without evidence of anything more than profane and vulgar remarks, the evidenceisinsufficienttosupportDefen-dant’s conviction based on what he said to theofficers.AsourCourtofAppealsnoted in Hawkins, “New Mexico decided this issue years ago, and the State has not provided us with any compelling reason that persuades us to overrule existing precedent.” 1999-NMCA-126, ¶ 15 (cita-tion omitted).

Disturbing the Tranquility of the Community and Incitement{31} As we indicated above, the Leg-islature has not provided guidance on what it means to “disturb the peace.” In 1966, when we drew an analogy between “disturbing the peace” and “breach of the peace” in Florsted,we identified threecategories of conduct that may satisfy the second element of disorderly conduct: (1) an actual act of violence; (2) an act likely to incite another to violence; and (3) an act that disturbs the peace and tranquility of the community. 77 N.M. at 49, 419 P.2d at 249 (disturbing the peace is “a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consterna-tion and alarm disturbs the peace and quiet of the community” (quoting Most, 64 N.E. at 177)). In the 43 years following that decision, this Court has never had occa-sion to consider a case where an accused’s conduct was alleged to have disturbed the tranquility of the community. Although the State theoretically could have made such an argument here, considering the time, place, and manner of Defendant’s conduct,itdidnotdosoinitsbriefing.Onappeal, issues not briefed are considered abandoned, and we do not raise them on our own.11 State v. Gee, 2004-NMCA-042, ¶ 25, 135 N.M. 408, 89 P.3d 80.{32} At trial, the State noted that De-fendant’s yelling was loud enough that it attracted his neighbors. However, the State never argued, as an independent basis for Defendant’s conviction, that his yelling amounted to unreasonably loud noise which disturbed the tranquility of the neighborhood. Rather, the State focused on how Defendant’s behavior impacted the officers andHarrison.Onappeal, the State claims that the three-hour duration of the incident caused “the police to fear for their personal safety and for the safety of Mr. Root and the neighbors living adjacent to Defendant.” Because the State does not advocate that Defendant’s behavior tended to disturb or incite his neighbors—a conclusion not apparent from the record—we do not consider further the impact of Defendant’s behavior on the surrounding community in our review.

{33} However, the State did argue, both to the trial court and on appeal, that Defendant’s behavior incited Har-rison to breach the peace. See Hawkins, 1999-NMCA-126, ¶¶ 12-13. We rely on Hawkins, a factually similar case, where the Court of Appeals discussed disorderly conduct by incitement. {34} In Hawkins, two police officersentered Hawkins’s property in pursuit of a criminal suspect.After theofficersapprehended the suspect, one reentered Hawkins’s backyard to search for evi-dence. Hawkins followed and confronted theofficer,yelling, “This isn’t a f---ingcrack house” and “Get out of my f---ing yard.” Id. ¶ 4. These statements were overheard by workers installing a pool in Hawkins’sbackyard.TheofficersarrestedHawkins for disorderly conduct and, on Hawkins’s appeal of his conviction, the State argued that “Defendant’s conduct created the possibility that the workmen in [Hawkins’s] backyard would be incited to aid [Hawkins] and precipitate a breach of the peace.” Id. ¶ 12. The Court of Appeals held that

there was no evidence that [the workers] were negatively af-fected by or reacted in any way to the statements. The mere fact that people may have heard De-fendant’s remarks, however loud or offensive they may have been, is insufficient to support a charge of disorderly conduct. There must be evidence that the remarks were likely to incite the listeners to breach the peace.

Id. ¶ 13 (emphasis added). The State argues that the present case is similar to Hawkins, but that, unlike the workers in Hawkins, there is evidence that Harrison actually reacted to Defendant’s statements by “mimicking” his behavior. We are not persuaded.{35} The evidence establishes that Har-rison joined Defendant at the front door during Defendant’s initial contact with thepoliceofficersandHarrison,likeDe-fendant, shouted aggressive and profane statementstotheofficers.Attrial,OfficerTownsendtestifiedthat,

during the initial contact, [Defen-dant] was calm but maybe within

10AlthoughOfficerMaestestifiedthatheperceivedHarrison’ssizeasathreat,hedidnotindicatethatHarrisonmadethreateningges-tures or otherwise acted violently. Moreover, even if Harrison had threatened violence, that conduct cannot be attributed to Defendant as evidence that Defendant disturbed the peace, unless Harrison’s conduct was incited by Defendant—a position we dispel below. 11TheStatehadafullopportunitybeforetheCourtofAppealstoexplaintheevidenceanditstheoryforconviction.ThebriefingtothisCourtwasconfinedtotheissuecertifiedtouspertainingtheDRA.


{36} Harrisontestifiedattrialandwasasked on cross-examination:[Prosecutor:] Did [Defendant] yelling and being so upset have any effect on you? [Harrison:] No, sir, not at all. [Prosecutor:] So you didn’t have any reaction to him being -- [Harrison:] No. [Prosecutor:] Do you think you still would have been angry if he had been perfectly calm? [Harrison:] Yes . . . .{37} Moreover, as we discussed above, shoutingprofanityatpoliceofficers,with-out more, does not itself amount to a breach of the peace—no different for Harrison than

one sentence later he elevated his voice, profanities, very upset over the fact that police were there at the house. And I guess the tall, Native American later identi-fiedasMartyHarrison,begantomimic that same behavior scream-ing, using profanity as well.

(Emphasis added.) Officer Townsend’s opinion is the only statement in the record to suggest that Harrison “mimicked” De-fendant, and the trial court relied on this statement as evidence that Defendant incit-edHarrison.However,OfficerTownsend’s“guess” is merely speculation and fails to establish a causal connection between De-fendant’s conduct and Harrison’s.

forDefendant.Wecanfindnoevidencetoshow a causal connection that Harrison was influencedbyorreactedasaconsequenceof Defendant’s behavior. This evidence isinsufficienttoestablishthatDefendantincited Harrison to breach the peace.CONCLUSION{38} We reverse the disorderly convic-tion of Defendant. {39} IT IS SO ORDERED. RICHARD C. BOSSON, Justice

WE CONCUR:EDWARD L. CHÁVEZ, Chief JusticePATRICIO M. SERNA, JusticePETRA JIMENEZ MAES, JusticeCHARLES W. DANIELS, Justice


Certiorari Not Applied For


Opinion Number: 2009-NMCA-122

Topic Index:Appeal and Error: Appealable Order; Appellate Jurisdiction;

Dismissal of Appeal; and Writ of ErrorCivil Procedure: Final Order; and Motion for New Trial

DEBRA DICKENS, as Personal Representative of the Estate of RUTH HOWE, Deceased,

Plaintiff-Appellant, versus

LAUREL HEALTHCARE, L.L.C., d/b/a LAUREL VIEW HEALTHCARE,

SKILLED HEALTHCARE GROUP, L.L.C. andTHE REHABILITATION CENTER OF ALBUQUERQUE, L.L.C.,

Defendants-Appellees.No. 29,239 (filed: June 18, 2009)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY RICHARD KNOWLES, District Judge

opinion

michael e. vigil, Judge

{1} Plaintiff’s decedent was a resident at Laurel View Healthcare, a nursing home fa-cility which Defendants owned and operated at different times. As personal representative ofdecedent,Plaintifffiledacomplaintforpersonal injury and wrongful death against Defendants.Defendants filedmotions todismiss the complaint and compel arbitra-tion, relying on the agreement Decedent

DUSTI D. HARVEyFELIz A. RAEL

JENNIFER J. FOOTEHARVEy LAW FIRM, L.L.C.Albuquerque, New Mexico

for Appellant

MARy BEHMSPRING V. SCHOFIELD

KELEHER & MCLEOD, P.A.Albuquerque, New Mexico

for Appellee Laurel Healthcare, L.L.C.

W. ROBERT LASATER, JR.EDWARD RICCO

MACDONNELL GORDONRODEy, DICKASON, SLOAN, AKIN & ROBB, P.A.

Albuquerque, New Mexicofor Appellees Skilled Healthcare Group, Inc.

and the Rehabilitation Center of Albuquerque, L.L.C.

signed when she became a resident at Laurel View Healthcare. The district court granted the motions, dismissed the complaint with prejudice, and ordered Plaintiff to pursue her claims by means of arbitration. Plaintiff thenfiledatimelymotiontoalteroramendthe judgment under Rule 1-059(E) NMRA and requested a hearing on the motion. {2} In our calendar notice we proposed to dismisstheappealforlackofafinalorder.In response, we received a memorandum in opposition to our proposed disposition

from Skilled Healthcare Group, LLC1 and the Rehabilitation Center of Albuquerque (the Skilled Healthcare defendants) and a memorandum in support of our proposed disposition from Plaintiff. We have con-sidered the arguments in opposition to proposed dismissal, but we are not per-suaded that theorder in thiscase isfinaland appealable at this time. We therefore dismiss the appeal.{3}PlaintifffiledherRule1-059(E)mo-tion on December 4, 2008. The Skilled Healthcaredefendantsfiledaresponsetothe motion on December 12, 2008, and DefendantLaurelHealthcare,LLCfiledaresponse to the motion on February 6, 2009. PlaintifffiledanoticeofappealonMonday,January 5, 2009, divesting the district court of jurisdiction over the case. See Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 241, 243-44, 824 P.2d 1033, 1043, 1045-46 (1992)(holdingthatthefilingofanoticeof appeal does not divest the district court of jurisdiction to decide collateral matters or matters that are separate from the issues that were resolved in the order appealed, but does divest the district court of juris-diction to address motions that request further action that will affect the judgment appealed). At the time the notice of appeal wasfiled, thedistrictcourthadnotruledon Plaintiff’s Rule 1-059(E) motion. {4}TheRule1-059(E)motionfiledinthiscase was a motion asking the district court to alter or change the same order which was on appeal before this Court. Therefore, the filingofthemotionrenderedtheordernotfinalforpurposesofappeal.Kelly Inn No. 102, 113 N.M. at 238, 824 P.2d at 1040 (“Where a judgment declares the rights and liabilities of the parties to the underly-ing controversy, a question remaining to be decided thereafter will not prevent the judgmentfrombeingfinalifresolutionofthat question will not alter the judgment or moot or revise decisions embodied therein.”). Our Supreme Court has held that a motion under Rule 1-059(E) is not subject to automatic denial after thirty days. See Al-buquerque Redi-Mix, Inc. v. Scottsdale Ins. Co., 2007-NMSC-051, ¶¶ 12-13, 142 N.M. 527, 168 P.3d 99. Instead, in a case where aRule1-059(E)motionhasbeenfiled,thetimeforfilinganoticeofappealrunsfromthe date of entry of an order that expressly disposes of the motion. Albuquerque Redi-Mix, Inc., 2007-NMSC-051, ¶ 16; see also

1Defense counsel advises us that no entity by the name of “Skilled Healthcare Group, LLC” exists, and that the true name of this defen-dantis“SkilledHealthcareGroup,Inc.”Assumingthisistrue,nomotionhasbeenfiledinthedistrictcourtorinthiscourttochangethis defendant’s name in the caption. Accordingly, we refer to this defendant as Skilled Healthcare Group, LLC.


Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865 (explaining that, if a party makes a post-judgment mo-tiondirectedatthefinaljudgmentpursuantto NMSA 1978, Section 39-1-1 (1917), the timeforfilinganappealdoesnotbegintorun until the district court enters an express disposition on that motion). In our calendar notice, we proposed to hold that because the district court had no opportunity to rule on Plaintiff’s Rule 1-059(E) motion, the appeal was premature and should be dismissed. We proposed to remand to al-low the district court to address Plaintiff’s motion, and we noted that Plaintiff will havetheopportunitytoappealfromafinalorder which may result in accordance with the Rules of Appellate Procedure. {5} The Skilled Healthcare defendants claim that Plaintiff “gave every indica-tion” that she “no longer desired” that her motion be ruled upon, but that she wanted to proceed immediately with an appeal. In support of their claims, the Skilled Health-care defendants point out that Plaintiff didnotfileareplytotheresponsestohermotion, she did nothing to have the motion addressed before the district judge retired at the end of 2008, and she did not claim that the district court erred by failing to rule on

the motion. The Skilled Healthcare defen-dants assert that we have routinely accepted jurisdiction in cases where post-judgment motions have not been ruled on before a noticeofappealisfiled.AccordingtotheSkilled Healthcare defendants, this Court has, in the past, decided that the motion is waivedorabandonedwhenapartyfilesanotice of appeal before a post-judgment motion has been decided. The Skilled Healthcare defendants also argue that the cases relied on in our calendar notice are not applicable to the circumstances of this case, and that our proposed disposition creates a barrier to appeal for the unwary.{6} In light of the decisions in Albuquer-que Redi-Mix and Grygorwicz, we reject the Skilled Healthcare defendants’ claim that Plaintiff impliedly abandoned her Rule 1-059(E) motion. By arguing that Plaintiff’s Rule 1-059(E) motion has been impliedly abandoned or withdrawn, the Skilled Healthcare defendants appear to advocate the untenable situation where neither this Court nor the parties would know when a post-judgment motion has been withdrawn, or consequently, when a noticeofappealshouldbefiled.Further-more, while the cases that we relied on do notpreciselyaddresstheissueoffinality

in connectionwith the filing of aRule1-059(E) motion, the holdings of our Su-preme Court in Albuquerque Redi-Mix and Grygorwicz establish that a Rule 1-059(E) motion be expressly disposed of before the timeforfilingthenoticeofappealbeginsto run. As we read those cases, when a Rule 1-059(E) motion, or other motion that challenges the district court’s determina-tion of the rights of the parties, is pending in the district court, the judgment or order entered by the district court remains non-final.Cf. Grygorwicz, 2009-NMSC-009, ¶ 8.Plaintiff filed a post-judgmentmotionthat attacked the district court order, and that could alter, amend, or moot the order entered by the district court. Therefore, the orderisnotfinalandPlaintiff’sappealispremature. {7} For the reasons discussed above and in our calendar notice, we dismiss Plaintiff’s appealforlackofafinalorder.Weremandthis case to the district court for further proceedings.{8} IT IS SO ORDERED. MICHAEL E. VIGIL, Judge

WE CONCUR:CYNTHIA A. FRY, Chief JudgeMICHAEL D. BUSTAMANTE, Judge


Certiorari Denied, No. 31,941, September 30, 2009



Topic Index:Appeal and Error: Standard of Review

Civil Procedure: Class Actions; Dismissal; Indispensable Parties; Motion to Dismiss; and StandingCommercial Law: Fiduciary Duty

Corporations: Officers and Directors; Reorganization and Merger; and Shareholder Rights and Liabilities

Miscellaneous Statutes: Real Estate Appraisal ActProperty: Appraisal

Remedies: Exclusive RemedyTorts: Fraud

MARIA ELENA A. RAEL, On Behalf of Herself and All Others Similarly Situated and

Derivatively On Behalf of Westland Development Company, Inc., Plaintiff-Appellant,

versusBARBARA PAGE, SOSIMO S. PADILLA, JOE S. CHAVEz, JOSIE CASTILLO,

CHARLES V. PENA, GEORGIA BACA, TROy K. BENAVIDEz, RAy MARES, JR., RANDOLPH M. SANCHEz, and DOES 1-100, inclusive,

Defendants-Appellees, and

WESTLAND DEVELOPMENT COMPANy, INC., Nominal Defendant-Appellee.

No. 27,332 (filed: August 13, 2009)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYWILLIAM F. LANG, District Judge

opinion

michael d. Bustamante, Judge

{1} This is an appeal from the dismissal of a purported class action challenging the 2006 acquisition of Westland Development Company, Inc. (Westland) by SunCal Com-panies and its wholly owned subsidiary, SCC Acquisition Corporation (collectively SunCal). Maria Elena A. Rael, a former Westland shareholder, on behalf of herself and all others similarly situated (Plaintiff) brought suit against Barbara Page, West-land’s president and CEO, along with all members of Westland’s board of directors (Defendants) and Westland. Plaintiff’s complaint alleges that the acquisition of Westland by SunCal (SunCal merger) was an unfair transaction tainted by Defendants’ breachesoftheirfiduciaryduties.1{2} The district court granted Defendants’ Rule 1-012(B)(6) NMRA motion to dis-miss. At issue is whether a shareholder of a corporation has standing to assert direct causes of action for breach of fiduciaryduty in the context of an allegedly unfair or invalid merger. And if so, whether New Mexico’s statutory right of appraisal pro-vides an exclusive and adequate remedy for any resulting damages. Also at issue is whether failure to join a necessary party is adequate grounds for dismissal of this matter, and whether claims for aiding and abettingbreachoffiduciarydutymaybebrought against persons already owing afiduciary duty.Wehold thatPlaintiff’sclaims were improperly dismissed on the issues of standing, exclusivity and adequacy of appraisal, and failure to join SunCal. However, we hold that Plaintiff’s aiding and abetting claims were properly dismissed. BACKGROUND{3} For purposes of our review, we rely on the facts as alleged in the complaint to determinethesufficiencyofthepleadingto state a cause of action. We make no determinations as to the ultimate truth or accuracy of any of the allegations. Health-source, Inc. v. X-Ray Assocs. of N.M., P.C., 2005-NMCA-097, ¶ 16, 138 N.M. 70, 116 P.3d 861.{4} Westland was the successor-in-interest to an 82,000 acre land grant, granted by the

NICHOLAS KOLUNCICH IIILAW OFFICES OF NICHOLAS

KOLUNCICH III, L.L.C.Albuquerque, New Mexico

PAMELA M. PARKERCOUGHLIN STOIA GELLER RUDMAN & ROBBINS, L.L.P.

San Diego, Californiafor Appellant

LUIS G. STELzNER JUAN FLORES

SHEEHAN, SHEEHAN & STELzNER, P.A.

Albuquerque, New Mexico

PAUL R. BESSETTE JESSE z. WEISS

KIMBERLy G. DAVISyUSUF A. BAJWA

GREENBERG TRAURIG, L.L.P.Austin, Texasfor Appellees

DOUGLAS G. SCHNEEBECKBRIAN K. NICHOLS

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

Albuquerque, New Mexicofor Nominal Appellee

1Plaintiff’s claims before the district court were asserted both directly on behalf of shareholders and derivatively on behalf of Westland. Plaintiff here appeals only the dismissal of her direct claims.


King of Spain to the inhabitants of the com-munity of Atrisco in 1692 (the Atrisco Land Grant). The Atrisco Land Grant lies west of Albuquerque, New Mexico, generally bounded to the east by the Rio Grande, to the west by the Rio Puerco, to the south by the Pajarito Land Grant, and to the north by St. Joseph’s Drive. Westland was formed from the Atrisco Land Grant in 1967 pur-suant to legislative action authorizing it to be converted to a for-profit corporation.Westland’s day-to-day operations were controlled by a nine member board of direc-tors, each of whom are named Defendants in this action. Westland had approximately 794,927 shares outstanding at the time of the merger, held primarily by heirs to the Atrisco Land Grant. {5} In 2005 Defendants began negotiating the sale of Westland with a series of poten-tialpurchasers.Thefirstmergeragreement,executed in September 2005, provided for the sale of Westland to ANM Holdings, Inc. (ANM) for $200 per share. In February 2006 two other potential suitors, SHNM Acquisition Corporation (SHNM) and Atrisco Heritage, LLC, approached West-land with more attractive offers, eventually reaching $255 per share and $300 per share, respectively. Despite Atrisco Heritage, LLC’s proffered higher bid, Defendants entered into a new merger agreement with SHNM. That agreement provided for a contribution of $1 million each year for 100 years to establish and fund a cultural center to honor the heritage and historical significance of theAtriscoLandGrant.With the new merger agreement in place, Westland terminated its prior agreement with ANM, causing the company to incur a termination fee of $5 million. {6} In June 2006 before the SHNM merger could be consummated, SunCal offered to purchase Westland for $315 per share. Defendants responded by terminating the merger agreement with SHNM and enter-ing into a new merger agreement with SunCal. This caused Westland to incur another termination penalty, this time for $15 million. The SunCal merger was ap-proved by a vote of Westland shareholders in November 2006. Through the merger, SunCal acquired control of Westland’s property comprising over 50,000 acres of the Atrisco Land Grant. {7}Plaintiff initiallyfiled suit inMarch2006 seeking to rescind the then existing merger agreement with SHNM and to enjoin the sale of Westland. In September Plaintiff was permitted to amend her com-plaint in light of new developments, namely

the termination of the SHNM merger agree-ment and the subsequent SunCal merger agreement. Plaintiff alleges that the sale process, beginning with the ANM merger agreement and leading to the SunCal merg-er, was fraught with director misconduct. Plaintiff contends that Defendants breached fiduciarydutiesowedtoWestlandanditsshareholders, including the duties of good faith, loyalty, due care, and candor. {8}Plaintiff’s fifty-page amended com-plaint asserts that, similar to the prior agree-ments and negotiations, the SunCal merger was tainted by past and continuing director misconduct. Paraphrasing her assertions, Plaintiff alleges among other things:

1. That the merger process was orchestrated by Westland’s President and CEO, Barbara Page, and Chairman of the Board, Sosimo Padilla, without any process to determine the extent or value of Westland’s assets;

2. That, prior to the merger agree-ment, both Page and Padilla systematically diverted them-selves the stock of deceased shareholders, forged ballots in order to grant themselves options to purchase stock, and granted themselves “change in control” shares which would accelerate upon sale of West-land;

3. That Defendants awarded them-selves employment contracts and severance agreements which functioned as disguised bonuses and took steps to en-sure that they received personal benefits from the sale while refusing to verify the true value of the land holdings being sold; and

4. That Defendants distributed false and misleading proxy statements which both omit-ted and failed to accurately disclose material information concerning: (1) Westland’s land holdings, (2) potential oil and gas revenues, (3) an accurate history of the bids received by Westland, (4) an accurate account of the many contradictory fair value estimates submitted by West-land’s contracted appraisers, (5) the shareholding position of the individual Westland

directors andofficers, (6) thepayments potentially due in-dividualdirectorsandofficersupon completion of the merger, and (7) the extent of Westland’s water rights.

Plaintiff argues that based on the above allegations, Westland shareholders were deprived of a merger agreement negotiated by an informed board, the ability to cast an informed vote, and a fair voting process. {9} By the time of the SunCal merger, several of Plaintiff’s allegations and de-mands had been addressed. For example, Defendants agreed to waive claims to their allegedly ill-gotten “change-in-control” shares, to create a corporation to distribute any future oil and gas royalties to Westland shareholders, and to provide $100 million to the Atrisco Heritage Foundation for the operation of Atrisco cemeteries and preservation of cultural heritage. While recognizing these developments as posi-tive,Plaintiffarguestheminsufficientgiventhe alleged defective nature of the sales process leading up to the SunCal merger. {10} Plaintiff’s direct and derivative actions were dismissed on November 27, 2006, on nine grounds, but Plaintiff’s ap-peal addresses only the dismissal of the direct causes of action. DISCUSSIONStandard of Review {11} A district court’s decision to

dismiss a complaint for failure to state a claim is reviewed de novo. A Rule 1-012(B)(6) motion to dismissteststhelegalsufficiencyof the complaint, not the fac-tual allegations of the pleadings which, for the purposes of ruling on the motion, the court must ac-cept as true. A complaint should not be dismissed unless there is a total failure to allege some matter essential to the relief sought. For purposes of a motion to dismiss, we accept all well-pleaded facts as true and question whether the plaintiff might prevail under any state of facts provable under the claim.

Id. (citations omitted).Standing to Bring Direct Action {12} Defendants argue that Plaintiff lacks standing for a direct action for breach offiduciarydutybecausetheseclaimsarederivative and belong to the corporation. Generally, direct actions are those “brought by a shareholder to recover from corporate officers,directorsorothers...whenheor


she sustains a special injury, . . . separate and distinct from that suffered by other shareholders or a wrong involving a con-tractual right of a shareholder . . . which exists independently of any right of the corporation.” 2 William E. Knepper & Dan A. Bailey, Liability of Corporate Officers and Directors § 18.01[1], at 18-2 (7th ed. 2003) (third alteration in original) (internal quotation marks and footnote omitted). In contrast, derivative actions are those “brought by one or more shareholders to enforce a right of action belonging to the corporation, which it could have asserted, but did not.” Id. § 18.01[3], at 18-5. In derivative actions, it is “harm to the cor-poration that determines if a controversy exists, not damage to the shareholders.” Id. Despite the clear theoretical distinctions between direct and derivative actions, as a practical matter, the line of distinction is often narrow. Kramer v. W. Pac. Indus., Inc., 546 A.2d 348, 351-52 (Del. 1988).{13} Defendants direct us to Marchman v. NCNB Texas National Bank, 120 N.M. 74, 898 P.2d 709 (1995), and Healthsource, Inc., 2005-NMCA-097, for application of direct versus derivative analysis in New Mexico. Those cases held that a sharehold-er lacked individual standing against third persons for damages that result because of an injury to the corporation unless a special injury exists in the form of either: (1) a special duty, such as a contractual duty, between the defendant and the shareholder; or (2) an injury separate and distinct from that suffered by other shareholders. Healthsource, Inc., 2005-NMCA-097, ¶ 25; Marchman, 120 N.M. at 81-82, 898 P.2d at 716-17. {14} Defendants argue that Marchman and Healthsource, Inc. are controlling and that Plaintiff lacks standing because neither exception applies. Furthermore, Defendants argue that, to the extent Plaintiff alleges mismanagement or neg-ligence, these claims may also be asserted only derivatively. See Schwartzman v. Schwartzman Packing Co., 99 N.M. 436, 441, 659 P.2d 888, 893 (1983) (holding that claims against corporate officers formismanagement belong to the corporation). The district court agreed, and dismissed Plaintiff’s amended complaint for failure to stateaclaim,findingthatPlaintifflackedindividual standing. {15} The cases cited by Defendants to argue that Plaintiff lacks standing provide little direct guidance on the issue before us. While some of Plaintiff’s allegations imply simple mismanagement, claims that

a merger transaction was unfair or invalid based on breached fiduciary duties are beyond the scope of anything implicated by the facts in Schwartzman. Furthermore, both Marchman and Healthsource, Inc. ad-dress direct causes of action brought against parties external to the corporation. In Marchman, shareholders in American Nut Corporation (ANC) attempted direct action against a third party bank after it attached ANC’s corporate accounts in satisfaction of a debt. Marchman, 120 N.M. at 78-79, 898 P.2d at 713-14. Similarly, in Healthsource, Inc., a shareholder in Lovelace Health Systems, Inc. (Lovelace) attempted direct action against a third-party corporation and doctor for interference with some of Lovelace’s employment agreements. 2005-NMCA-097, ¶¶ 2, 6. {16} We are dealing with an attack on the validity or fairness of a merger negotiated by a corporation’s own directors. Here the claims for relief are against the directors for damages allegedly suffered by shareholders directly in the form of an unfair share price paid in order to merge the corporation out of existence. {17} Of particular concern, any de-rivative causes of action which may have existed before the merger are lost after the merger is consummated given the re-quirement for continuous ownership to maintain a derivative suit. See White ex rel. Banes Co. Derivative Action v. Banes Co., 116 N.M. 611, 614, 866 P.2d 339, 342 (1993) (holding that in order to maintain a derivative cause of action, a shareholder must maintain a continuous ownership interest in the corporation). If Plaintiff’s claims are viewed as only derivative, any actual director misconduct relating to the transaction would otherwise escape review by the fortuity of the intervening merger. {18} Delaware courts which, like New Mexico, apply a continuous ownership rule for derivative actions, have considered this issue and provide guidance. In Parnes v. Bally Entertainment Corp., 722 A.2d 1243 (Del. 1999), a plaintiff stockholder alleged that the defendant’s directors breached their fiduciarydutiesbyenteringintoamergeragreement through unfair dealing which re-sulted in an unfair price. Id. The complaint was dismissed because the defendant had been merged out of existence, and since the claims were viewed as derivative, there was no longer standing to maintain the action. Id. On review, the court held that standing to bring direct claims existed because an unfair merger transaction results in direct injuries to the stockholders, independent of

any injury to the corporation. Id. at 1245. Specifically,thecourtheldthat“[a]stock-holder who directly attacks the fairness or validity of a merger alleges an injury to the stockholders, not the corporation, and may pursue such a claim even after the merger [is] consummated.” Id. (emphasis added). The court characterized claims at-tacking the fairness or validity of a merger as those questioning “the fairness of the price offered . . . or the manner in which the . . . agreement was negotiated.” Id. In order to assert such a claim, “a stockholder must challenge the validity of the merger itself, usually by charging the directors withbreachesoffiduciaryduty resultingin unfair dealing and/or unfair price.” Id. {19} Since its decision in Parnes, the Delaware Supreme Court has gone further to help clarify direct versus derivative analysis. In Tooley v. Donaldson, Lufkin, & Jenrette, Inc., 845 A.2d 1031, 1035 (Del. 2004), the court replaced the concept of “special injury” with a two-part analysis based on the following questions: (1) “[w]ho suffered the alleged harm—the corpora-tion or the suing stockholder[s] individual-ly—and[(2)]whowouldreceivethebenefitof [any] recovery or . . . remedy?” That is, “a court should look to the nature of the wrong and to whom the relief should go.” Id.at1039.ThecourtidentifiedParnes as a proper application of the two-part analysis. Tooley, 845 A.2d at 1039. {20} Here, Plaintiff’s complaint chal-lenges the SunCal merger at length based on the fairness of the price and the manner in which the agreement was negotiated. The complaint alleges that Defendants breachedfiduciarydutiesbyengaging inself-interested negotiations with potential buyers, devaluing the company for personal gain, and conducting unfair and mislead-ing voting processes. Applying Parnes, we conclude that Plaintiff’s pleadings suf-ficientlychallengethefairnessandvalidityof the SunCal merger by directly alleging breachesoffiduciarydutiesthatresultedinunfair dealing or an unfair price.{21} With respect to the question of who suffered the harm, pursuant to Parnes, we conclude that a stockholder who directly attacks the fairness or validity of a merger alleges a direct injury to the stockholders, not the corporation. See Parnes, 722 A.2d at 1245. In addition, given that Westland has been merged out of existence, any remedy can benefit onlyWestland’s ex-shareholders directly. See Tooley, 845 A.2d at 1035. Based on the foregoing, Plaintiff has adequately pled a direct injury. We


reverse the district court and hold that Plaintiff has standing to pursue her direct claims. Exclusivity and Adequacy of the Right of Appraisal{22} Defendants argue that, even if Plaintiff has direct standing, dismissal was proper because New Mexico’s appraisal statute provides the exclusive remedy in this case, and an adequate remedy at law. The relevant section is as follows:

A shareholder of a corpora-tion who has a right under this section to obtain payment for his shares shall have no right at law or in equity to attack the validity of the corporate action that gives rise to his right to obtain pay-ment, nor to have the action set aside or rescinded, except when the corporate action is unlawful or fraudulent with regard to the complaining shareholder or to the corporation.

NMSA 1978, § 53-15-3(D) (1983). Plain-tiff argues that the appraisal statute does not apply and, even if it did, her claims fall within the exception for “fraudulent or unlawful” corporate action. We agree. For purposes of evaluation in the context of a Rule 12(B)(6) motion, the alleged breaches offiduciarydutydetailedintheamendedcomplaint rise to the level of fraudulence or illegality. By the statute’s own terms, the appraisal remedy cannot be deemed exclusive at this point. Plaintiff should at least be afforded the opportunity to prove her allegations. {23} For the same reason, it would be difficultatthisstageoflitigationtodeter-mine that the appraisal remedy would be adequate. See Andra v. Blount, 772 A.2d 183, 192 (Del. Ch. 2000) (stating that it would be “nearly impossible . . . to dis-miss a well-pled unfair dealing claim on the basis that appraisal [would be a] fully adequate” remedy). To the extent that Plain-tiff has been injured, as alleged, we cannot conclude that mere valuation would, as a matter of law, provide adequate redress. Failure to Join as Proper Grounds for Dismissal{24} The district court found that Sun-Cal was an indispensable party in this case and cited Plaintiff’s failure to join SunCal as one reason for dismissal. Generally, the question of indispensability is a factual question reviewed for abuse of discretion.

Golden Oil Co. v. Chace Oil Co., 2000-NMCA-005, ¶ 8, 128 N.M. 526, 994 P.2d 772 (filed1999). In thiscase,wedonotreview the district court’s determination of indispensability, but instead whether dismissal was proper based on failure to join. See Ruegsegger v. Bd. of Regents of W. N.M. Univ., 2007-NMCA-030, ¶ 11, 141 N.M. 306, 154 P.3d 681 (reviewing a Rule 1-012(B)(6) motion to dismiss de novo). {25} Having determined that reversal is required on the issues of standing and appraisal, we cannot conclude that failure to join SunCal, standing alone, is a suf-ficient ground for dismissal.Where it isdetermined that a party is required for just adjudication, an opportunity to join that party shouldfirst be afforded.Rule1-019(A)(2)(b) NMRA states that if a necessary party has not been joined, “the court shall order that he be made a party.” In addition, Rule 1-021 NMRA, addressing misjoinder and nonjoinder of parties, states that “[m]isjoinder . . . is not ground[s] for dismissal of an action.” We interpret these rules as requiring, to the extent feasible, that Plaintiff be allowed opportunity to join SunCal before having her claims dismissed for failure to join. {26} We make no determination on Defendants’ position that since the merger has been consummated, the district court’s ruling on nonjoinder of SunCal is no lon-ger at issue. Even though the merger was consummated, we leave to the district court the question of indispensability of SunCal in further proceedings. Aiding and Abetting{27} In addition to alleging that Defen-dants breachedfiduciary duties, Plaintiffalso alleges that Defendants aided and abet-ted one another in committing the breaches. The district court dismissed Plaintiff’s claim for aiding and abetting stating that such claims may be brought only “against a personwhodoesnothaveafiduciaryduty” and that here, “all the individual defendants had such a duty.” We agree with the district court on this issue and hold that aiding and abetting in this context is not proper as it is duplicative of the underlying claims.{28} New Mexico recognizes tort li-ability for aiding and abetting a breach of afiduciarydutywhereaninjuredpartyhasafiduciaryrelationshipwiththeprincipaltortfeasor, and a third party occupies the role of an accomplice in relation to the principal tortfeasor. GCM, Inc. v. Ky. Cent.

Life Ins. Co., 1997-NMSC-052, ¶¶ 17-18, 124 N.M. 186, 947 P.2d 143. In GCM, Inc., the aiding and abetting claim was against a thirdpartywhoallegedlyaidedafiduciaryinabreachbutowednodirectfiduciarydu-ties. Id. ¶ 23. In that context, “tort liability for aiding and abetting is consistent with one of the principal goals of tort law, the deterrence of wrongful actions that result in harm.” Id. ¶ 18. Extending aiding and abetting liability to a party already owing afiduciarydutyisinconsistentandduplica-tiveofthisprinciplebecauseafiduciaryisalready liable for the breach. {29} Plaintiff cites Henderson (In re Western World Funding, Inc.) v. Buchanan, 52 B.R. 743, 764 (Bankr. D. Nev. 1985), rev’d in part on other grounds, 131 B.R. 859 (D. Nev. 1990), to support its position that Defendants may be held liable both principally and as aiders and abettors. In Henderson, the court considered the li-abilityoftwofiduciariesforaidingineachother’s misappropriations, concluding that “[o]ne who knowingly aids or participates inafiduciary’sviolationofhistrustisalsoliable for the breach.” Id. We disagree with Plaintiff’s interpretation that this language supportsliabilityofafiduciaryforaidingand abetting. When read in context, it actually implies thatwhereonefiduciaryaids another in a breach, both may be held principally liable. See id.{30} To the extent that Defendants assisted or encouraged one another in breachingfiduciary duties, theymay befound principally liable for the breach. But extending aiding and abetting liability in such situations is not supported by law. Therefore,we affirm the district court’sfindingthataidingandabettingclaimsmaynot be alleged against Defendants in this case.CONCLUSION{31} For the foregoing reasons, we re-verse the district court’s dismissal on the is-sues of standing, exclusivity and adequacy of appraisal, and failure to join SunCal, and we remand for further proceedings consistent with this opinion.{32} IT IS SO ORDERED. MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:JAMES J. WECHSLER, JudgeJONATHAN B. SUTIN, Judge


Certiorari Denied, No. 31,943, September 30, 2009



Topic Index:Constitutional Law: Vague or Overbroad

Criminal Law: Motor Vehicle Violations

STATE OF NEW MEXICO,Plaintiff-Appellee,

versusANTHONy JACQUEz,Defendant-Appellant.

No. 28,419 (filed: August 28, 2009)

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTYMIKE MURPHy, District Judge

opinion

timothy l. garcia, Judge

{1} Defendant appeals his convictions, pursu-ant to a conditional plea agreement, for felony drivingwhileundertheinfluence(DWI),driv-ing while license is suspended or revoked, and no proof of insurance. On appeal, Defendant argues that the initial stop of his vehicle was unlawful and that the evidence that resulted from the traffic stop should therefore be suppressed. Defendant also argues that our registration plate statute, NMSA 1978, § 66-3-18(A) (2007), is unconstitutionally void for vagueness and therefore could not provide a lawful basis for the stop. We are not persuaded byDefendant’sargumentsandaffirm.BACKGROUND{2} At the suppression hearing, Deputy Barde testifiedthat,ashepassedDefendant’svehiclewhile driving in the opposite direction, he noticed that Defendant’s vehicle had a cracked windshield. Based on this observation, Deputy Barde made a U-turn and followed Defendant’s vehicle. While driving behind Defendant, Deputy Barde’s view of the registration sticker on Defendant’s license plate was blocked by a silver frame placed around the plate, and he was unable to see the expiration date of the sticker. Based on the obstruction of the registration sticker, Deputy Barde activated

GARy K. KINGAttorney GeneralANITA CARLSON

Assistant Attorney GeneralSanta Fe, New Mexico

for Appellee

HUGH W. DANGLERChief Public DefenderKARL ERICH MARTELL

Assistant Appellate DefenderSanta Fe, New Mexico

for Appellant

hisemergency lightsand initiated the trafficstop.Thedistrictcourtaddressedtheofficer’sauthority to stop Defendant’s vehicle at a suppression hearing on January 4, 2008. The court denied Defendant’s motion to suppress. Defendant appeals the denial of his motion to suppress.DISCUSSION{3} In reviewing the denial of a motion to suppress, we must view the facts in the light most favorable to the prevailing party and de-termine whether the law was correctly applied to the facts. State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785. We indulge all reasonable inferences in support of the court’s decision and disregard all inferences and evidence to the contrary. State v. Duquette, 2000-NMCA-006, ¶ 7, 128 N.M. 530, 994 P.2d 776(filed1999).{4} On appeal, Defendant argues that the cracked windshield could not justify the stop because there was no indication that Defen-dant’s vision was obstructed or that the crack made driving hazardous. See, e.g., State v. Munoz, 1998-NMCA-140, ¶ 11, 125 N.M. 765, 965 P.2d 349 (holding that a violation of NMSA 1978, Section 66-3-801(A) (1991) occurs when a crack in a vehicle’s windshield makes the vehicle unsafe to drive). Although Defendant argues that the cracked windshield didnotjustifythestop,DeputyBardetestifiedthat the crack in Defendant’s windshield only

caused him to turn around “to see if [he] saw anyotherviolations.”DeputyBardetestifiedthathe initiated the trafficstopbasedonhisdetermination that the obstructed registration sticker constituted a violation of Section 66-3-18(A). Based on the deputy’s testimony and the appropriate standard of review, the district court properly held that the Deputy Barde ini-tiated the stop based upon obstruction of the registration sticker.{5} In relevant part, Section 66-3-18(A) pro-vides that “[t]he registration plate . . . shall be in a place and position so as to be clearly visible, and . . . clearly legible.” An obstructed registration sticker constitutes a violation of Section 66-3-18(A). See State v. Hill, 2001-NMCA-094, ¶¶ 28-30, 131 N.M. 195, 34 P.3d 139. We hold that Deputy Barde’s observation of such an obstruction to the license plate pro-videdasufficientbasistojustifythestop.See State v. Vargas, 120 N.M. 416, 419, 902 P.2d 571, 574 (Ct. App. 1995) (recognizing that a violation of the Motor Vehicle Code provides officerswiththerequisitereasonablesuspicionto conduct an investigatory stop). {6} In anticipation of our holding that the stop wasjustifiedbyDeputyBarde’sobservationofthe obstructed registration plate, Defendant as-serts that Section 66-3-18(A) is unconstitution-ally void for vagueness and therefore could not provide a lawful basis for the stop. Although the parties disagree as to whether Defendant adequately preserved the issue below, we exercise our discretion to consider the issue as a matter of “general public interest.” Rule 12-216(B) NMRA. We review a challenge to the constitutionality of a statute de novo. State v. Duran, 1998-NMCA-153, ¶ 31, 126 N.M. 60, 966 P.2d 768. We presume that the statute is constitutional, State v. Laguna, 1999-NMCA-152, ¶ 24, 128 N.M. 345, 992 P.2d 896, and it is the defendant’s burden to rebut this presump-tion, State v. Andrews, 1997-NMCA-017, ¶ 10, 123 N.M. 95, 934 P.2d 289. We analyze a claim of vagueness according to the particular facts of each case, State v. Luckie, 120 N.M. 274, 276, 901 P.2d 205, 207 (Ct. App. 1995), and a de-fendant may not succeed on a vagueness claim if the statute clearly applies to the defendant’s conduct, Laguna, 1999-NMCA-152, ¶ 24. A statute is void for vagueness if: (1) it fails to provide persons of ordinary intelligence using ordinary common sense a fair opportunity to determine whether their conduct is prohibited; or (2) it fails to create minimum guidelines for thereasonablepoliceofficer,prosecutor,judge,or jury charged with enforcement of the statute, and thereby encourages subjective and ad hoc application. Id. ¶¶ 25-26.{7} First, we address the fair warning or notice aspect of the registration plate statute. Section 66-3-18(A) provides:


The registration plate shall be at-tached to the rear of the vehicle for which it is issued; however, the reg-istration plate shall be attached to the front of a road tractor or truck tractor. The plate shall be securely fastened at alltimesinafixedhorizontalpositionat a height of not less than twelve inches from the ground, measuring from the bottom of the plate. It shall be in a place and position so as to be clearly visible, and it shall be main-tained free from foreign material and in a condition to be clearly legible.

Defendant argues that the statute is uncon-stitutionally vague because it does not state precisely what on the plate must be “clearly visible.” However, Defendant acknowledges that there are some circumstances in which a violation of the statute would be obvious, such as a plate that is so worn or dirty so as to be unreadable. As applied to the particular circumstances of this case, Defendant argues that Deputy Barde could identify the critical elements of his plate—the state of registration and the plate number—and asserts that it is not apparent that a violation of the statute could be based on “[t]he fact that the [registration] sticker was covered.” We disagree.{8} As recognized in Hill, the term “‘reg-istration plate’ is a broad term comprising everything that evidences registration, includ-ing plates, tabs, and renewal stickers.” 2001-NMCA-094, ¶ 29 (emphasis added). Consistent with Hill, NMSA 1978, Section 66-1-4.15(I) (2007)specificallydefinesregistrationplateas“the plate, marker, sticker or tag assigned by thedivisionfortheidentificationoftheregis-tered vehicle[.]” Other related New Mexico registration statutes similarly make it clear that the registration sticker is part of the registration plate. See, e.g., NMSA 1978, § 66-1-4.19(A) (2005)(defining“validatingsticker”asthe“tabor sticker issued by the division to signify, upon a registration plate, renewed registration”); § 66-3-18(C) (providing that “[n]o vehicle while being operated on the highways of this state shall have displayed . . . any registration plate, including validating sticker, other than one issued or validated for the current registration period”).{9} A registration sticker that is obstructed by a license plate frame placed over the sticker so as to prevent the information contained on the sticker from being read constitutes a violation of Section 66-3-18(A). See Hill, 2001-NMCA-094, ¶¶ 28-30. The registration sticker provides required information that allows officers toensure that the vehicle’s registration is current. Section 66-3-18(A) requires that this necessary information must be posted in a manner that makes the registration sticker clearly visible.

In short, a common sense reading of Section 66-3-18(A) dictates that the visibility require-ment extends not just to selective portions of the plate, as advocated by Defendant, but instead to all of the registration information required to be displayed on the license plate. See State ex rel. Children, Youth & Families Dep’t v. Shawna C., 2005-NMCA-066, ¶ 34, 137 N.M. 687, 114 P.3d 367 (holding that a statuteisvalidwhenit“convey[s]sufficientlydefinitewarningastotheproscribedconductwhen measured by common understanding and practices” (internal quotation marks and citation omitted)). We conclude that Section 66-3-18(A) provides citizens fair warning of the prohibited conduct of obstructing the vital information required to be displayed on a ve-hicle’s license plate, including the registration sticker.{10} We are not persuaded by Defendant’s assertion that registration stickers are too small to be read from a distance or while driving and thus should be excluded from the visibility requirement. Whether or not the stickers can beviewedbyanofficerwhiledrivingisnotamatter of record. See State v. Romero, 87 N.M. 279, 280, 532 P.2d 208, 209 (Ct. App. 1975) (holding that “[m]atters outside the record pres-ent no issue for review”). We further decline Defendant’s invitation to take judicial notice on this point, as the readability of registration stickers will vary depending on the distance between the two vehicles and a host of other factors. See Rozelle v. Barnard, 72 N.M. 182, 183, 382 P.2d 180, 181 (1963) (precluding judicial notice when uncertainty surrounds the fact or matter in question); see also Rule 11-201(B) NMRA (providing that judicial notice is generally not appropriate for matters that are subject to reasonable dispute or incapable of ready and accurate determination).{11} We next consider whether Section 66-3-18(A) encourages arbitrary or discrimi-natory enforcement. Defendant asserts that “Deputy Barde’s interpretation of Section 66-3-18wouldallowanyofficertopulloverany car with a license plate holder, since the registration sticker . . . is obscured by many (if not most) license plate holders.” Whether or not most license plate frames obscure registration stickers is not a matter of record. See Romero, 87 N.M. at 280, 532 P.2d at 209 (“Matters outside the record present no issue for review.”). Further, irrespective of the ac-curacy of Defendant’s assertion, the critical inquiryiswhetherthestatuteprovidesofficerswith minimal guidelines for enforcement. To this end,Section66-3-18(A) allowsofficersto effect a stop only if an object causes the information on the plate to be obstructed so that it is not clearly visible. The fact that a law enforcementofficermustviewthelicenseplate

to determine whether the required registration information is clearly visible does not, by itself, establish that the determination is an ad hoc or subjective application of the law. Objective evidence regarding the visibility of the registra-tion sticker can be presented to the trial court. For this reason, we cannot conclude that Sec-tion 66-3-18(A) lacks minimal guidelines for enforcement or fails to constrain the discretion oflawenforcementofficers.{12} Lastly, we disagree with Defendant’s argument that the present case is analogous to the circumstances addressed in Smith v. Goguen, 415 U.S. 566, 568-76 (1974). In Goguen, the statute criminalized “treat[ing] contemptuouslytheflagoftheUnitedStates.”Id. at 568-69 (internal quotation marks and citation omitted). Treating something “con-temptuously” involves a subjective determina-tion that does not place a defendant on notice of any particular act that would be prohibited and allows indiscriminate enforcement. Id. at 575-76. Consequently, the statute was uncon-stitutionally vague. Id. at 576-77. Conversely, the application of Section 66-3-18(A) leaves minimal room for subjectivity and allows for objectiveevidenceofverification.Thestatuteunambiguously requires that the information on the registration plate be clearly visible. Id. As such, we determine that Section 66-3-18(A) meets the minimum guidelines for the reason-ablepoliceofficer,judge,orjurychargedwithenforcement of the statute, and thereby does not promote a subjective and ad hoc applica-tion. Defendant did not present any evidence or argue that the registration sticker on his vehicle was, in fact, visible. Because the evi-dence established that Defendant’s license plate frame prevented Deputy Barde from viewing the information contained on the registration sticker, the stop of Defendant’s vehicle was not indiscriminate.{13} In light of our conclusion that Sec-tion 66-3-18(A) is not void for vagueness, we need not consider Defendant’s contention that theofficercouldnotrelyingoodfaithonanunconstitutional statute.CONCLUSION{14} Consistent with the foregoing analysis, we hold that Deputy Barde lawfully stopped Defendant’s vehicle based on his observation of a violation of Section 66-3-18(A). We further hold that Section 66-3-18(A) is constitutional andisnotvoidforvagueness.Weaffirm.{15} IT IS SO ORDERED. TIMOTHY L. GARCIA, Judge

WE CONCUR:JAMES J. WECHSLER, JudgeLINDA M. VANZI, Judge


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PosiTions

ClassifieD

Associate or Contract AttorneySmall downtown Santa Fe AV rated law firm seeks an associate or contract attorney with five or more years of experience to handle civil litigation. Please send resume to Post Office Box 1234, Santa Fe, NM 87504-1234.

Trial AttorneyValencia CountyThe 13th Judicial District Attorney’s Office is accepting applications for an experienced, mid to senior level trial attorney for the Valencia County Office, located in Belen, NM. This position requires prosecution of criminal cases and performs complex felony work. Requires a minimum of 7 years experience in prosecut-ing major felony cases. Salary is dependant on experience. Send resumes to Carmen Gon-zales, Human Resources Administrator, 333 Rio Rancho Blvd., Suite 201, Rio Rancho, NM 87124, or via E–Mail to: [email protected]. Deadline: Open until posi-tion is filled.

Associate AttorneyCivil Litigation firm seeks associate attorney with strong academic credentials and 1-5 years experience for successful, established complex commercial and tort litigation practice. Ex-cellent benefits. Tremendous opportunity for professional development. Salary D.O.E. All inquiries kept confidential. Send resume and writing sample to Atkinson, Thal & Baker, P.C., Attorney Recruiting, 201 Third Street NW, Suite 1850, Albuquerque, NM 87102.Attorney

Attorney—Part time (20 hours per week) staff attorney position at the State Bar for the Lawyer Referral for the Elderly Program (LREP). Primary duties include working the legal helpline answering general civil law ques-tions for senior citizen clients, conducting legal workshops and client meetings (in-state travel required), making private attorney referrals. Patience and compassion required. Spanish –speaker preferred. Requires a current license to practice law. Send letter of interest (include any salary requirements) and resume to HR-LREP SA, PO Box 92860, Albuquerque, NM 87199 or fax 505-797-6019 or email [email protected]. Position opened until filled. EOE.

Attorney Positions -1st Judicial District AttorneyThe First Judicial District Attorney’s Office an immediate opening(s) for; 1) a Deputy District Attorney to prosecute domestic violence cases and supervise the domestic violence unit; 2) an opening in January for a Deputy District Attorney prosecuting general felony cases; 3) an opening in January for a Senior Trial Prosecutor prosecuting drug trafficking and distribution cases in Santa Fe and Rio Arriba Counties pursuant to a grant. The HIDTA attorney is responsible for managing the High Intensity Drug Trafficking Area (HIDTA) grant including maintaining case statistics, and preparing quarterly and annual reports. Salary will be based upon experience and the District Attorney Personnel and Compensation Plan. Please send resume and letter of interest to Doug Couleur, Chief Deputy District At-torney, PO Box 2041, Santa Fe, NM 87504, or via e-mail to [email protected].

Assistant District AttorneyThe Twelfth Judicial District Attorney’s office has immediate positions open to new as well as experienced attorneys in Alamogordo, New Mexico. Salary and job assignments will be based upon experience and the District Attor-ney’s Personnel and Compensation Plan. Please send resume to Diana A. Martwick, District Attorney, 1000 New York Avenue, Room 101, Alamogordo, NM or e-mail to [email protected].

Attorney Positions -1st Judicial District AttorneyThe First Judicial District Attorney’s Office has an immediate position for an attorney to prosecute DWI and/or domestic violence cases in Magistrate Court. Salary will be based upon experience and the District Attorney Personnel and Compensation Plan. Please send resume and letter of interest to Doug Couleur, Chief Deputy District Attorney, PO Box 2041, Santa Fe, NM 87504, or via e-mail to [email protected].

Assistant City Attorney I Hiring Range: $4,348.15 - $5,956.37 per month. Position is open until filled. First review of ap-plications on December 11, 2009. The City of Farmington, New Mexico is currently hiring for an Assistant City Attorney. The hiring range for this position is $4,348.15 - $5,956.37 per month. This position performs a variety of complex, high level administrative, technical and professional work in prosecuting crimes, conducting civil lawsuits, drawing up legal documents, advising city officials as to legal rights, obligations, prac-tices other phases of applicable local, state and Federal law. Qualifications include graduation from an accredited law school with a Juris Doc-tor degree in law and a license to practice law in New Mexico; member in good standing of the State Bar Association. The City of Farmington is a vibrant and progressive community dealing with continued, planned growth. Recreational opportunities are abundant in and around Farmington. The moderate sunny climate makes an ideal home for the outdoor enthusiast. Hik-ing, camping, biking, and snow skiing are just some of the activities that are within easy reach; not to mention the world class fly fishing and our nationally acclaimed golf course. Farmington is a culturally diverse community of approximately 43,000 residents and serves as a major retail trade area for the entire Four Corners area. A more detailed description of this position may be viewed by visiting our website at www.fmtn.org or visiting our Job Board, located outside the City of Farmington Human Resources office. For an application contact the City of Farmington, Human Resources, 850 Municipal Drive, Farmington, NM 87401, 505-599-1132, email [email protected], or visit our website at www.cofjobs.com. An Equal Opportunity Employer, M/F

Staff AttorneyThe American Civil Liberties Union (ACLU) of New Mexico seeks a full-time, permanent Staff Attorney, based in Albuquerque. This position carries out litigation and related activi-ties in support of the ACLU’s mission. Primary responsibilities include: serving as lead and co-counsel on diverse civil rights/liberties cases; collaborating with a state-wide network of vol-unteer attorneys; coordinating with National ACLU legal projects; some public speaking, media, outreach, and administrative activities. The position might include supervisory respon-sibilities, depending on candidate experience. For a detailed job description and how to apply: www.aclu-nm.org/About/attorney.html

CYFD Attorney SeniorThe Children, Youth and Families Department is seeking to fill numerous vacant Children’s Court Attorney position in Multiple loca-tions: Albuquerque New Mexico (2); Valencia County (1). The attorneys will represent the department in abuse/neglect and termination proceedings and related matters. The ideal candidates will have experience in the practice of law totaling at least four years. New Mexico licensure required. Benefits include medical, dental, vision, paid vacation, and a retirement package. The salary range is $38-$67K annu-ally, depending on experience and qualifica-tions. To learn more about the Albuquerque positions, contact Nick Kennedy at (505) 841-7819 or e-mail [email protected]: for the Valencia position, contact Deborah Gray at (505) 771-5917, or e-mail [email protected]. The State of New Mexico is an EOE. Please apply on-line no later than December 4, 2009. To apply for this job go to www.state.nm.us/spo/ and click on JOBS, then click on Apply for a Job Online.

Litigation AttorneyLitigation Attorney needed for a reputable law firm representing numerous, nationwide banking/service clients in full range of credi-tor’s rights. Must be able to multi task in a high volume, fast paced office. Submit in con-fidence cover letter, resume, sal his & req to: 7430 Washington Street, NE Albuquerque, NM 87109, fax 833-3040, or email [email protected]

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Attorney Office SpacePrime Uptown LocationPrestigious Uptown location, high visibility, convenient access to I-40, Bank of America, companion restaurants, shopping, two-story atrium, extensive landscaping, ample parking, full-service lease. Single attorney office space (office plus secretary-paralegal and small reception area if needed) available within well-improved and appointed 2695 square foot office. Includes shared reception, secretarial areas, conference room, coffee bar, and lounge with three other small attorney firms. Rent of $1175.00 includes reception coverage. One (1) year lease required. Call Ron Nelson 883-9662- Uptown Square.

ParalegalEstablished medium-sized law firm seeks full-time Paralegal. Applicants must have experience with medical records, exceptional organizational skills, and be able to perform multiple tasks in a high volume, fast-paced practice. Microsoft Word experience necessary. Please submit cover letter, resume and salary requirements to Hiring Manager, YLAW, 4908 Alameda Blvd. NE, Albuquerque, NM 87113. No phone calls please.

Beautiful Adobe Close to downtown, courthouses, hospitals. Reception area, conference rooms, employee lounge included. Copy machine available. Ample free parking and easy freeway access. From $250.00 per mo. Utilities included. Oak Street Professional Bldg., 500 Oak St. N. E. Call Jon, 507-5145; Orville or Judy, 867-6566.

offiCe sPaCe

Uptown Office Suite1030 sq.ft. Corner of Louisiana and Candelaria. Reception area, two offices, work room, private bathroom. 293-3776.

Law Office For RentLaw office for rent, sharing office space with two other attorneys. Located at 8010 Menaul NE. Front door parking. Hal Simmons, 299-8999.

Three Offices AvailableBest location in town, one block or less from the federal, state, metropolitan courts. Includes secretarial space, phones and service, parking, library, janitorial, security, receptionist, daily runner, etc. Contact Thomas Nance Jones, (505) 247-2972.

Go Have A Beer – We’ll Handle The Research & Writing Virtual Litigation Support, LLC provides the highest quality research and writing at irresistibly affordable rates (rates begin at $75/hour). Built-in quality control, all U.S. attorneys, no project too large or too small. VirtualLitigationSupport.com or call today: (877) 727-7176.

Writing, Research, AppealsExperience: federa l appellate clerk and Modrall Sperling attorney. 505-550-8573, [email protected].

Freelance ParalegalFreelance paralegal with 20+ years experience available for civil litigation and case organization and management. Excellent references. Call 899-2918 in Albuquerque or email [email protected].

serviCes

Legal Assistant/ParalegalExtensive prior experience in civil litigation and document control/management required. Seeking professional, organized, and highly skilled individual with attention to detail. Ex-cellent computer skills required. All inquiries confidential. Competitive benefits. Resumes, Atkinson, Thal & Baker, PC, 201 Third Street NW, Suite 1850, Albuquerque NM 87102.

Prime Uptown Office Space AvailableLocated in the heart of the business district, 6100 Uptown offers class A space ideal for your law practice. Spaces available from 1,100-6,200 SF. Underground garage parking and climate controlled storage are available. Numerous amenities lie within walking distance. Contact Scott Throckmorton at ARGUS Investment Re-alty at (505) 855-7600 for more information.

Downtown Law Space for Lease300 Central SW, Suite1300. Located at the corner of 3rd and Central. Excellent condition with several offices and open area. Includes use of law library and conference room. 1,632 rsf $1,428.00 per month. Call Martha or Shelly @ 878-0001.

Freelance Attorney Available for Project WorkYale Law School graduate and NM-licensed attorney available for project-based legal research, writ ing, edit ing, and review. www.celesteboyd.com

Expert, Articulate Witness, Appraiser, Art And AntiquesPeter Eller Ph.D., AAA, (505) 268 7437.

For Sale or Lease3,650 sf office space across from Federal Courthouse. 800 3rd, NW next to Am-erAsia and Sumo Sushi. Terms available for qualified buyer. Terrie M. Hertweck, CCIM, Grubb & Ellis New Mexico, direct 505.880.7022, cell 505.228.8818, [email protected]

Professional Office DowntownOffice with Separate Secretarial Area if Needed, Office Furnishings Optional, Free Client Parking, Library/Conference Room, Kitchen, Telephone, High-Speed Internet Connection, Copier, Fax, Recently Updated Security System, Within Walking Distance from Courthouses. 715 Tijeras Ave. NW. Call Holly or Suzan at 842-5924.

Experienced Legal AssistantExperienced Legal Assistant needed for a fast-paced plaintiffs’ firm. Must be organized, self-motivated, and able to work independently. Previous legal experience required, specifically in the preparation of pleadings and correspon-dence, state and federal court filings, and cal-endaring. Must be computer literate and have experience with MS Word and Outlook Email. Fax or email resume with salary requirements to Mia Touchet at Gaddy ◊ Jaramillo, (505)254-9366; [email protected]

For SaleStorage Units with positive Ca$h Flow. 70 storage units - 100% leased. Can be purchased with 4,000sf office/warehouse on C-3 land. Located at 5516 Silver, SE near San Mateo and Central. $900,000 Terms available for qualified buyer. Terrie M. Hertweck, CCIM, Grubb & Ellis New Mexico, direct 505.880.7022, cell 505.228.8818, [email protected]

For Sale or Lease4,000 sf office/warehouse C-3 zoning lo-cated next to post office. $300,000 Seller financing available. Terrie M. Hertweck, CCIM, Grubb & Ellis New Mexico, direct 505.880.7022, cell 505.228.8818, [email protected]




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