1. law, govt and politics
2. government
3. courts and judiciary

November 19, 2014 • Volume 53, No. 47
Inside This Issue
Table of Contents..................................................... 3
Judicial Vacancies
Second Judicial District Court......................... 4
10th Judicial District Court.............................. 4
11th Judicial District Court (Aztec)................ 4
11th Judicial District Court (Gallup).............. 4
13th Judicial District Court.............................. 4
Bernalillo County Metropolitan Court........... 5
Bankruptcy Law Section Winter Social............... 5
‘Making the Most of What I Have’........................ 7
Thank You, Wills for Heroes Volunteers.............. 8
Clerk’s Certificates................................................. 14
From the New Mexico Court of Appeals
2014-NMCA-093, No. 30,930:
Santa Fe Pacific Trust, Inc. v.
City of Albuquerque........................................ 17
2014-NMCA-094, No. 32,653:
State v. Mosley.................................................. 24
2014-NMCA-095, No. 33,008:
State v. Sanchez................................................ 29
From Generation To Generation by Melinda Silver (see page 3)
Griffin Gallery Fine Art, Edina, Minn.
Special Insert
New Mexico Lawyer
Telemedicine
Health Law Section
Dec. 4
CLE Planner
2014 Intellectual Property
Law Institute
5.0 G
1.0 EP
also available via
LIVE WEBCAST
Thursday, Dec. 4, 2014 • 9 a.m.-4:30 p.m.
State Bar Center, Albuquerque
Co-sponsor: Intellectual Property Law Section
Dec. 5
8:30 a.m. Registration
9 a.m.
Employee Duty of Loyalty and Trade Secret
Misappropriation
Gina T. Constant, Romero & Constant PC
Jeff L. Lowry, Rodey, Dickason, Sloan, Akin & Robb PC
10:30 a.m. Break
10:45 a.m. Copyright Assignments and Rights Ownership Issues
Jeffrey D. Myers, Peacock Myers PC
11:45 a.m. Lunch (provided at the State Bar Center)
Intellectual Property Law Section Annual Meeting
12:45 p.m. The Copyright Fair Use Field Guide
Michelle S. Garcia, MEW Technologies
1:45 p.m. Copyright Case Study: Klinger v. Conan Doyle Estate
Ltd.: The Legality of Unauthorized Sherlock Holmes
Stories
Benjamin W. Allison, Sutin,Thayer & Browne PC
3:15 p.m. Break
3:30 p.m. Who is My Client? Ethical Considerations for the
Attorney Representing Small—Really Small—LLCs
Jeffrey H. Albright, Lewis Roca Rothgerber LLP
4:30 p.m. Adjournment and Reception
(provided at the State Bar Center)
25th Annual
Appellate Practice Institute
5.7 G
1.0 EP
also available via
LIVE WEBCAST
Friday, Dec. 5, 2014 • 8:15 a.m.-4:45 p.m.
State Bar Center, Albuquerque
Co-sponsor: Appellate Practice Section
8 a.m.
Registration
8:15 a.m. Introductory Remarks and Program Overview
Tim Atler, Sutin, Thayer & Browne APC; Appellate Practice
Section, Chair
8:30 a.m. Recent Developments in Appellate Practice
Edward Ricco, Rodey Dickason Sloan Akin & Robb PA
Nancy Simmons, Law Offices of Nancy L. Simmons PC
9:15 a.m. The Business of Appellate Practice
Alice Lorenz, Lorenz Law
Kerry Kiernan, Sutin, Thayer & Browne APC
Jane Yohalem, Law Office of Jane B. Yohalem
10:15 a.m. Break
10:30 a.m. Judicial Panel on Effective Petitions for Discretionary
Review
Hon. Edward L. Chavez, Justice, New Mexico Supreme Court
Hon. Michael D. Bustamante, Judge, New Mexico Court of Appeals
Andrew S. Montgomery, Montgomery & Andrews, PA
11:45 a.m. Lunch (provided at the State Bar Center)
Appellate Practice Section Annual Meeting
1 p.m.
Keynote Address: Effective Written and Oral Advocacy
Kannon Shanmugam, Williams & Connolly LLP,
Washington, D.C.
2:30 p.m. Update on Electronic Research Tools and Resources
Emil J. Kiehne, Modrall, Sperling, Roehl, Harris & Sisk, PA
Michael Tolson, New Mexico Supreme Court Law Library
3:30 p.m. Break
3:45 p.m. Ethical Issues in Appellate Practice
Kip Purcell, Rodey Dickason Sloan Akin & Robb PA
Scott Davidson, JustAppeals.Net The Appellate Law Office
of Scott M Davidson
4:45 p.m. Adjournment
All live seminars and video replays are held at the State Bar Center, 5121 Masthead NE, Albuquerque. They include course materials,
CLE credit and filing fees for New Mexico. Full-day programs also include continental breakfast, breaks and buffet lunch.
Register online at www.nmbarcle.org or call 505-797-6020.
CENTER FOR LEGAL EDUCATION
2
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
Table of Contents
Officers, Board of Bar Commissioners
Erika Anderson, President
Martha Chicoski, President-Elect
J. Brent Moore, Vice President
Scotty A. Holloman, Secretary-Treasurer
Andrew J. Cloutier, Immediate Past President
Board of Editors
Ian Bezpalko, Chair Kristin J. Dalton
Jocelyn C. Drennan
Jennifer C. Esquibel
Bruce Herr
George C. Kraehe
Maureen S. Moore
Tiffany L. Sanchez
Mark Standridge
Joseph Patrick Turk
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • dwolohan@nmbar.org
Communications Coordinator
Evann Kleinschmidt
505-797-6087 • notices@nmbar.org
Graphic Designer Julie Schwartz
jschwartz@nmbar.org
Account Executive Marcia C. Ulibarri
505-797-6058 • mulibarri@nmbar.org
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2014, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: address@nmbar.org. • www.nmbar.org
November 19, 2014, Vol. 53, No. 47
Notices .................................................................................................................................................................4
‘Making the Most of What I Have’................................................................................................................7
Thank You, Wills for Heroes Volunteers......................................................................................................8
Legal Education Calendar..............................................................................................................................9
Writs of Certiorari .......................................................................................................................................... 11
List of Court of Appeals’ Opinions............................................................................................................ 13
Clerk’s Certificates.......................................................................................................................................... 14
Recent Rule-Making Activity...................................................................................................................... 16
Opinions
From the New Mexico Court of Appeals
2014-NMCA-093, No. 30,930: Santa Fe Pacific Trust, Inc. v. City of Albuquerque......... 17
2014-NMCA-094, No. 32,653: State v. Mosley............................................................................ 24
2014-NMCA-095, No. 33,008: State v. Sanchez......................................................................... 29
Advertising....................................................................................................................................................... 33
State Bar Workshops
Meetings
November
December
19
Committee on Women and the Legal
Profession, noon, Modrall Sperling
3
Divorce Options Workshop
6 p.m., State Bar Center
21
Family Law Section BOD,
9 a.m., via teleconference
3
Civil Legal Fair
10 a.m.–1 p.m.,
Second Judicial District Court,
Third Floor Conference Room,
Albuquerque
21
Trial Practice Section BOD,
Noon, State Bar Center
4
Landlord Tenant Workshop
5:30 p.m., State Bar Center
25
Appellate Practice Section BOD,
Noon, via teleconference
December
9
Civil Legal Clinic for Veterans
9 a.m.–noon,
Raymond G. Murphy VA Medical Center,
SCI Meeting Room, Albuquerque
2
Bankruptcy Law Section,
Noon, U.S. Bankruptcy Court
10
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
3
Employment and Labor Law Section,
Noon, State Bar Center
13
Consumer Debt/Bankruptcy Workshop,
9 a.m., The Law Office of Kenneth Egan,
Las Cruces
25
Intellectual Property Law Section BOD,
Noon, Lewis Roca Rothgerber
4
Health Law Section,
9 a.m., via teleconference
Cover Artist: Melinda Silver is a passionate painter who works in acrylics, encaustics and mixed media, painting layers
and then destroying those layers in order to capture the tension and mystery of geological, social, political, religious and
personal change. She worked many years as a commercial artist for print media. Always interested in making this world
a better place, she attended and graduated from the UNM School of Law, and practiced both locally and in Washington
D.C. Now she works in her newly remodeled studio in Santa Fe. For inquiries or to arrange a studio visit, contact Silver at
melindasilver@gmail.com or at www.melindasilverfineart.com.
Bar Bulletin - November 19, 2014 - Volume 53, No. 47 3
Notices
Court News
First Judicial District Court
Mass Reassignment of Cases
Professionalism Tip
With respect to my clients:
I will be loyal and committed to my client’s cause, and I will provide
my client with objective and independent advice.
Effective Dec. 10, a mass reassignment
of cases will occur pursuant to NMSC
Rule 23-109, the Chief Judge Rule. All
of the cases previously assigned to the
Hon. Jennifer L. Attrep, Division IX,
will be reassigned to the Hon. David K.
Thomson, Division VI. Parties who have
not previously exercised their right to
challenge or excuse will have 10 days from
Dec. 10 to challenge or excuse the judge
pursuant to Rule 1-088.1.
Clingman and Judge Shoobridge, and all
Family Drug Court assignments. Judge
Shoobridge will be assigned all probate cases
previously assigned to Judge Clingman and
Judge Mark Sanchez. Pursuant to Supreme
Court Rule 1-088.1, parties who have not yet
exercised a peremptory excusal will have 10
days from Nov. 26 to excuse Judge Kirksey.
Second Judicial District Court
10th Judicial District Court
A vacancy will exist in the Second Judicial
District Court in Albuquerque as of Jan. 1,
2015, due to the expiration of the term of
Hon. Kenneth H. Martinez. This position
will be a domestic relations/domestic violence division bench assignment. Inquiries
regarding additional details or assignment
of this judicial vacancy should be directed
to the chief judge or the administrator
of the court. David Herring, chair of the
Judicial Nominating Commission, solicits
applications for this position from lawyers
who meet the statutory qualifications in
Article VI, Section 14 of the New Mexico
Constitution. Applications may be obtained
from the Judicial Selection website: http://
lawschool.unm.edu/judsel/application.php.
The deadline for applications is 5 p.m. Nov.
24. Applicants seeking information regarding election or retention if appointed should
contact the Bureau of Elections in the office
of the Secretary of State. The Judicial Nominating Commission will meet at 8:30 a.m. on
Dec. 9 at the Bernalillo County Courthouse,
400 Lomas NW, Room 338, Albuquerque,
to evaluate the applicants. The Commission
meeting is open to the public and anyone
who wants to voice his or her opinion about
a candidate will be heard.
One vacancy will exist in the 10th
Judicial District Court due to the nonretention of the Hon. Albert J. Mitchell Jr.
effective Jan. 1, 2015. This will be a general
jurisdiction bench assignment, Division I
in Tucumcari (Quay, DeBaca & Harding
counties). Inquiries regarding details or
assignment of this judicial vacancy should
be directed to the administrator of the
court. David Herring, chair of the Judicial
Nominating Commission, solicits applications for this position from lawyers who
meet the statutory qualifications in Article
VI, Section 14 of the New Mexico Constitution. Applications may be obtained
from the Judicial Selection website: http://
lawschool.unm.edu/judsel/application.
php. The deadline for applications is 5 p.m.,
Dec. 1. Applicants seeking information
regarding election or retention if appointed
should contact the Bureau of Elections in
the office of the Secretary of State. The Judicial Nominating Commission will meet
at 10 a.m. on Dec. 11 at the Quay County
Courthouse, 300 S. 3rd Street, Tucumcari,
to evaluate the applicants. The Commission
meeting is open to the public and anyone
who wants to voice his or her opinion about
a candidate will be heard.
Fifth Judicial District Court
11th Judicial District Court
Announcement of Vacancy
Notice of Mass Reassignment
Gov. Susana Martinez has appointed
Judge Lee A. Kirksey to fill the Fifth Judicial
District Court judgeship in Lea County,
Division XI. Effective Oct. 24, a mass reassignment of cases occurred pursuant to
NMSC Rule 23-109. Judge Kirksey will be
assigned all domestic cases previously assigned to Judge Gary Clingman and Judge
William G. W. Shoobridge, all abuse and
neglect cases previously assigned to Judge
4
Announcement of Vacancy
Announcement of Vacancy (Aztec)
A vacancy on the 11th Judicial District
Court will exist in Aztec as of Jan. 1, 2015,
due to the expiration of the term of Hon.
William C. Birdsall. The opening will be
for a general jurisdiction judge, Division
I. Inquiries regarding further details of
this judicial vacancy should be directed to
the chief judge or the administrator of the
court. Applications and information related
to qualifications for the position may be ob-
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
tained from the Judicial Selection website:
http://lawschool.unm.edu/judsel/application.php, or by contacting Raylene Weis
at 505-277-4700. The deadline is 5 p.m.,
Nov. 19. Applicants seeking information
regarding election or retention if appointed
should contact the Bureau of Elections in
the office of the Secretary of State. The
Judicial Nominating Committee will meet
at 1 p.m. on Dec. 3, at the San Juan County
Courthouse, 103 S. Oliver Drive, Aztec, to
evaluate the applicants. The Committee
meeting is open to the public and anyone
who wants to voice his or her opinion about
a candidate will be heard.
Announcement of Vacancy (Gallup)
A vacancy on the 11th Judicial District
Court will exist in Gallup as of Jan. 1, 2015,
due to expiration of the term of Hon. Grant
L. Foutz. The opening will be for a general
jurisdiction judge, Division V. Inquiries
regarding further details of this judicial vacancy should be directed to the chief judge
or the administrator of the court. The dean
of the UNM School of Law, designated by
the New Mexico Constitution to Chair the
Judicial District Nominating Committee,
solicits applications for this position from
lawyers who meet the statutory qualifications in Article VI, Section 14 of the New
Mexico Constitution. Applications and
information related to qualifications for
the position, may be obtained from the
Judicial Selection website: http://lawschool.
unm.edu/judsel/application.php, or by
contacting Raylene Weis at 505-277-4700.
The deadline for applications is 5 p.m.,
Nov. 20. Applicants seeking information
regarding election or retention if appointed
should contact the Bureau of Elections in
the office of the Secretary of State. The
Judicial Nominating Committee will meet
at 9:30 a.m., Dec. 4 at the McKinley County
Courthouse, 207 W. Hill, Gallup, to evaluate the applicants for this position. The
Committee meeting is open to the public
and anyone who wants to voice his or her
opinion about a candidate will be heard.
13th Judicial District Court
Announcement of Vacancy
One vacancy will exist in the 13th
Judicial District Court due to the pending
www.nmbar.org
expiration of the term of Hon. Camille
Martinez Olguin, effective Jan. 1, 2015.
This will be a general jurisdiction bench
assignment in Grants (Cibola County).
Further inquiries regarding details or assignment of this judicial vacancy should
be directed to the chief judge or the
administrator of the court. David Herring, chair of the Judicial Nominating
Commission, solicits applications for
this position from lawyers who meet the
statutory qualifications in Article VI,
Section 14 of the New Mexico Constitution. Applications may be obtained from
the Judicial Selection website: http://
lawschool.unm.edu/judsel/application.
php. The deadline for applications is
5 p.m., Dec. 5. Applicants seeking information regarding election or retention if
appointed should contact the Bureau of
Elections in the office of the Secretary of
State. The Judicial Nominating Commission will meet at 10 a.m. on Dec. 12 at the
Cibola County Courthouse, 515 W High
St., Grants, to evaluate the applicants. The
Commission meeting is open to the public
and anyone who wants to voice his or her
opinion about a candidate will be heard.
Bernalillo County
Metropolitan Court
Announcement Of Vacancy
One vacancy on the Bernalillo County
Metropolitan Court will exist as of Jan. 1,
2015, due to the expiration of the term of
Hon. Cristina T. Jaramillo. The vacancy
will be a criminal court assignment, Division III. Inquiries regarding details or the
assignment of this judicial vacancy should
be directed to the chief judge or the Administrator of the court. The dean of the
UNM School of Law, designated by the New
Mexico Constitution to chair the Bernalillo
County Metropolitan Court Nominating
Committee, solicits applications for this
position from lawyers who meet the statutory qualifications in Section 34, Article
8A-4b of the New Mexico Statutes Annotated 1978. Applications may be obtained
from the Judicial Selection website: http://
lawschool.unm.edu/judsel/application.
php. The deadline for applications has been
set for 5 p.m., Dec. 8. Applicants seeking
information regarding election or retention
if appointed should contact the Bureau of
Elections in the office of the Secretary of
State. The Judicial Nominating Committee will meet on Dec. 18 at the Bernalillo
County Metropolitan Courthouse, 401
Lomas NW, Room 849, Albuquerque, to
evaluate the applicants. The Committee
meeting is open to the public and anyone
who wants to voice his or her opinion about
a candidate will be heard.
U.S. District Court for the
District of New Mexico
Court Closure
The U.S. District Court for the District
of New Mexico will be closed Nov. 27–28
for the Thanksgiving holiday. Court will
resume on Dec. 1. After-hours access to
CM/ECF will remain available as regularly scheduled. Stay current with the U.S.
District Court for the District of New
Mexico by visiting the Court’s website,
www.nmcourt.fed.us.
State Bar News
Attorney Support Groups
• Dec. 15, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
• Dec. 1, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• Dec. 8, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, Room 1119 (The group
meets the second Monday of the month.)
•For more information, contact Bill
Stratvert, 505-242-6845.
2015 State Bar
Budget Disclosure
Fee Arbitration Program
This program helps to resolve fee disputes
between attorneys and their clients or
between attorneys. Call 505-797-6004 or
1-800-876-6227.
in disasters to introduce the acclaimed
film “MINE: Taken by Katrina.” “MINE”
is the powerful story about how tragedy
intensifies the essential bond between
humans and their animals, told against
the backdrop of one of the worst natural
disasters in U.S. history. “MINE” explores
the perspectives of original guardians, rescuers, and adoptive parents of the voiceless
victims of Katrina.
Bankruptcy Law Section
Winter Social Event
The Bankruptcy Law Section will be
holding a winter social event, 5:30 p.m. on
Dec. 11 at the Nob Hill Bar & Grill, 3128
Central Ave. SE in Albuquerque. Appetizers and drinks will be provided. R.S.V.P. to
Dan White at dwhite@askewmazelfirm.
com. This event is free to Bankruptcy Law
Section members.
Board of Bar Commissioners
Deadline to Challenge Expenditures
Using the form provided on the last page
of the budget disclosure document, submit
written challenges on or before noon,
Dec. 5, to: Executive Director Joe Conte,
State Bar of New Mexico, PO Box 92860,
Albuquerque, NM 87199. Challenges may
also be delivered in person to the State Bar
Center, 5121 Masthead NE, Albuquerque;
faxed to 505-797-6019; or emailed to Joe
Conte, jconte@nmbar.org. The budget disclosure document is available in its entirety
on the State Bar website at www.nmbar.org.
Animal Law Section
Annual Meeting and Presentation
The Animal Law Section Annual Meeting will be held at 5 p.m. on Dec. 11 at
the State Bar Center. Wine and appetizers
will be served. Following a brief meeting,
UNM School of Law Professor Marsha
Baum will give a short talk about animals
Appointments
The Board of Bar Commissioners will
make appointments to several foundations,
commissions, and boards listed below.
Members who want to serve in any position
should send a letter of interest and brief
résumé by Dec. 1 to Executive Director Joe
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org/JLAP/JLAP.html
Bar Bulletin - November 19, 2014 - Volume 53, No. 47 5
www.nmbar.org
Conte, State Bar of New Mexico, PO Box
92860, Albuquerque, NM 87199-2860; fax
to 828-3765; or email to jconte@nmbar.org.
•
Rocky Mountain Mineral Law Foundation Board: one appointment, threeyear term
•
New Mexico Access to Justice Commission: two appointments, for threeyear terms
Commission on Professionalism: one
•
appointment, two-year term
•
New Mexico Legal Aid Board: three
appointments, three-year terms (with
one of the appointments being a member of and recommended by the Indian
Law Section)
Ethics Advisory Committee
Seeking New Members
The State Bar’s Ethics Advisory Committee is looking for volunteers to assist
with the work of the committee. The
committee meets once a month and via
email, responding to specific requests for
ethics advisory opinions from members
of the State Bar based on the New Mexico
Rules of Professional Conduct. Committee
members outside of Albuquerque can participate via teleconference. To volunteer for
the committee contact rspinello@nmbar.
org. For more information about the committee visit www.nmbar.org/legalresearch/
ethicsadvisoryopinions.html.
New Mexico Medical Review
Commission
CLE Fee Waiver Opportunity
The New Mexico Medical Review Commission, in an effort to recruit new Com-
Bar Bulletin
Holiday Deadlines
To be included in the Dec. 3 issue, all
notices and editorial content must be
submitted by Wednesday, Nov. 19.
Note that the final issue of 2014 will be
the Dec. 24 Bar Bulletin (Vol. 53, No.
52). Please plan ahead to make sure
your notices are included.
To be included in the Jan. 7, 2015, issue,
all notices and editorial content must be
submitted by Monday, Dec. 22.
Submit content to notices@nmbar.org.
6
mission members and to reward existing
members, is offering panelists the opportunity to have their fee waived at “Medical Malpractice Review before the New
Mexico Medical Review Commission,” the
NMMRC’s five-hour medical malpractice
CLE on Dec. 19. Those interested should
serve on four panels before Dec. 1. For more
information, call Judy Durzo at 505-7978540, or Ellen Kelly at 505-764-6019.
UNM
Law Library
Hours Through Dec. 13
Building & Circulation
Monday–Thursday 8 a.m.–10 p.m.
Friday
8 a.m.–6 p.m.
Saturday
8 a.m.–5 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Closure
Nov. 27–28: Thanksgiving
Other Bars
New Mexico Chapter of the
Federal Bar Association
Free Movie CLE Opportunity
See a free movie and earn CLE. The
New Mexico Chapter of the Federal Bar
Association is offering a special program
in recognition of the 50th anniversary of
the Criminal Justice Act (CJA), and the
Gideon v. Wainwright decision. This entails
a showing of the movie “Gideon’s Army,”
followed by a panel discussion of the CJA,
led by U.S. Magistrate Judge Kirtan Khalsa.
“Gideon’s Army” is a 2013 Sundance
award-winning documentary by Georgetown Law alumna Dawn Porter (L’93),
“Gideon’s Army” follows the personal
stories of three young public defenders in
the Deep South challenging the assumptions that drive a strained criminal justice
system to the breaking point. The program
will be held at 10 a.m., Nov. 20, at the Regal
Winrock Stadium 16, 2100 Louisiana Blvd.
NE in Albuquerque. CLE credit is available.
Admission is free to everyone. Attendees
should register by sending their name and
bar number to Ron Holmes at ronholmes@
ronholmes.com.
New Mexico Black Lawyers
Association
November CLE
The New Mexico Black Lawyers association will hold its annual CLE, “Evidence,
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
Injunctions, Ethics & E-Filing” (5.0 G,
1.0 EP) from 8:30 a.m.–4:30 p.m. on Nov.
21 at the State Bar Center. Tuition is $199
and payments can be made by purchase
order or via PayPal at http://www.new
mexicoblacklawyersassociation.org/cle.
html. For more information, visit http://
www.newmexicoblacklawyersassociation.
org/ or email nmblacklawyers@gmail.com.
New Mexico Defense Lawyers
Association
2014 Annual Civil Rights Seminar
The New Mexico Defense Lawyers Association is pleased to announce the return
of Sheldon H. Nahmod, professor of law
at IIT Chicago-Kent College of Law, as the
special guest speaker at its 2014 Annual
Civil Rights Seminar on Dec. 5 at the Albuquerque Jewish Community Center (5.0
G, 1.0). The full-day seminar is designed
for the intermediate and advanced civil
rights practitioner and adjuster. For a full
listing of presentations and to register, visit
www.nmdla.org or call 505-797-6021.
Other News
Center for Civic Values
Volunteers Needed for Mock Trial
Program
Attorneys are needed at New Mexico
high schools to provide legal expertise as
coaches for the 2015 Gene Franchini High
School Mock Trial program. Two coaches
are needed at Pojoaque High, one coach
is needed at Pecos High, one is needed at
Zuni High, and one is needed at nex+Gen
Academy in Albuquerque. The amount
of time invested will be decided by the
volunteer attorney and the teacher coach,
but teams usually meet at least once each
week. The regional competition is Feb.
20–21, 2015; state finals are March 20–21,
2015; and nationals are on May 15–18, 2015,
in Raleigh, N.C. Most teams have access to
Skype, so volunteers around the state can
be effective and helpful coaches for the
students. More information about the role
of coaches is available on the “Tips and
Advice” pages in the mock trial section of
the Center for Civic Values’ website at www.
civicvalues.org. Attorneys with a few hours
a week to devote toward helping to provide
an outstanding educational experience to
New Mexico high school students should
contact CCV at 505-764-9417, ext. 11. The
37th annual mock trial program is a collaborative effort among CCV, the Bernalillo
County Metropolitan Court and the State
Bar of New Mexico.
‘Making the
Most of
What I Have’
The Children’s Law Section received 64 entries in its 12th Annual
Art Contest for children 10 or older who have had contact with the
juvenile justice system or Children’s Court. This year’s theme was
“Making the Most of What I Have.” The first-place winner received
$100 gift card to Target; second, third place and honorable mentions
also received gift cards. Art was graded on creativity, originality,
quality, effort and application of the theme, and the works were
shown at the awards ceremony at Scalo’s in Albuquerque.
First-place winner
Judge John Romero, Beth Gillia and Eva Buchwald
Contest judges from left Valerie Fladager, Penne Roberts
and Jane MacLean
Children’s Law Section Chair Alison Pauk
with Judge William Parnall
Photos by D.D. Wolohan
Bar Bulletin - November 19, 2014 - Volume 53, No. 47 7
Wills for Heroes
The Young Lawyers Division would like to express its gratitude to the following volunteers for
generously giving their time and expertise to the Wills for Heroes event on Nov. 8 in Albuquerque.
They prepared 34 wills and estate planning documents for State Police officers and their spouses.
Attorneys
David Cowen
Spencer Edelman
Sean Fitzpatrick
Tomas Garcia
Justin Goodman
Jeremy Harrison
Niva Lind
Ben Nucci
Dorielle Paul
Jim Plitz
Ken Stalter
Paralegals
Susan Bergman
Nettie Condit
Heather Corn
Yolanda Hernandez
Tina Kelbe
Kim Mabry
Linda Murphy
Bonita Ortiz
Paula Reiss
Regina Rodriguez
Dawn Seals
Susan Whiteford
Carolyn Winton
Thank you to Rebecca Anaya, a civilian employee of the State Police,
who was key in making this such a big event.
This program would not be successful without our volunteers’ continued support!
YOUNG LAWYERS DIVISION
8
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
Legal Education
November
19
Small Business Legal Workshop
6.5 G
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
20
2014 Criminal Law Institute
1.5 G, 1.5 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
21
Evidence, Injunctions, Ethics &
E-Filing
5.0 G, 1.0 EP
Live Seminar
New Mexico Black Lawyers
Association
505-450-1032
www.newmexicoblacklawyers
association.org/
2014 N.M. Family Law Institute:
Get with the Times: Bringing Your
Family Law Practice into 2015 (Day
Two)
5.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
25
25
Electronic Discovery (2014 Annual
Meeting)
1.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
25
Risk Management for Lawyers
(2014 Annual Meeting)
1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
25
2014 Ethicspalooza: The Ethics of
Social Media Use
1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
25
2014 Sexual Harassment Update
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
26
Attorney Ethics and the Use of
“Metadata” in Litigation and
Transactional Practice
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
December
2
2014 Probate Institute
6.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
2
New Mexico Administrative Law
Institute 2014
4.2 G, 2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
2
2014 Employment and Labor Law
Institute
4.5 G, 1.5 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
2
Structuring Minority Interests in
Businesses
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
25th Annual Appellate Practice
Institute
5.7 G, 1.0
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
4
2014 Intellectual Property Law
Institute
5.0 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
5
4
8
Estate Planning for Second
Marriages
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
5
Trust Planning and Drafting
Techniques
5.6 G, 1.0 E
Live Seminar
Sterling Education Services
715-855-0495
www.sterlingeducation.com
2014 Fall Elder Law Institute: The
Complexities of the Special Needs
Trust: Drafting, Funding and
Implementation
4.5 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
9
Legal Education
www.nmbar.org
December
8
2014 Business Law Institute
5.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
8
Ethicspalooza: Ethically Managing
Your Practice
1.5 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
8
Ethicspalooza: Conflicts of Interest
1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
8
Ethicspalooza: Charging a
Reasonable Fee
1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
8
Ethicspalooza: Proper Trust
Accounting
1.5 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
8
Ethicspalooza: Ethics of Social
Media Use
1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
9
Technology in the Courts
5.2 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
10
9–10 Great Adverse Depositions:
Principles and Principal
Techniques
6.0 G
Live Webinar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
9–10 Business Torts, Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
Employment Separation
Agreements
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
11
12
Providing a Life Path for Your
Clients
5.0 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
10
Mock Meeting of the Ethics
Advisory Committee
2.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
12
10
15
Trials of the Century III
4.0 G, 2.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
Civil Procedure Update and Recent
Developments in the U.S. Supreme
Court
3.0 G
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
10
Solos at Seasons
Planning Ahead: Protecting Your
Clients and Your Practice
1.0 EP
Live Seminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
11
25th Annual Real Property Institute
5.5 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
11
Law and Policy for Neighborhoods
10.0 G, 2.0 E
Live Seminar
Santa Fe Neighborhood Law Center
505-983-4319
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
Attorney Ethics and Use of Email in
Law Practice
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
16
Nonprofit Corporations
Compliance
3.5 G
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
Law Practice Succession—A Little
Thought Now, a Lot Less Panic
Later
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
16
16
The Family Law Client in the
Context of Immigration Law: What
Every Attorney Should Know To
Maximize Results for Noncitizen
Clients
6.2 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective November 7, 2014
Petitions for Writ of Certiorari Filed and Pending:
No. 34,970
No. 34,969
No. 34,968
No. 34,967
No. 34,965
No. 34,964
No. 34,963
No. 34,961
No. 34,960
No. 34,958
No. 34,957
No. 34,922
No. 34,955
No. 34,952
No. 34,951
No. 34,950
No. 34,949
No. 34,947
No. 34,946
No. 34,945
No. 34,948
No. 34,493
No. 34,942
No. 34,941
No. 34,940
No. 34,939
No. 34,938
No. 34,937
No. 34,934
No. 34,924
No. 34,932
No. 34,931
No. 34,925
No. 34,930
No. 34,928
No. 34,929
No. 34,881
No. 34,910
No. 34,913
No. 34,902
No. 34,912
No. 34,916
No. 34,907
No. 34,885
No. 34,878
Date Petition Filed
State v. Lara
COA 33,688 11/07/14
State v. Munoz
COA 33,817 11/06/14
State v. Munoz
COA 33,815 11/06/14
State v. Ross
COA 32,152 11/06/14
State v. Jimenez
COA 33,802 11/05/14
State v. Van Dien
COA 32,656 11/05/14
State v. Arthur
COA 33,750 11/04/14
State v. Rowden
COA 33,772 11/03/14
Griffin v. Casinova
12-501 11/03/14
State v. Valdez
COA 33,719 10/30/14
State v. Sisneros
COA 33,746 10/30/14
State v. Bell
COA 31,890 10/30/14
State v. Kelly
COA 33,179 10/29/14
Environment N.M. v. N.M. Construction
COA 32,939 10/27/14
Industry Commission
State v. August
COA 33,557 10/27/14
State v. Chacon
COA 33,748 10/27/14
State v. Chacon
COA 33,748 10/27/14
Response filed 10/31/14
Carmona v. State
12-501 10/23/14
State v. Kuykendall
COA 32,612 10/23/14
State v. Kuykendall
COA 32,612 10/23/14
Payne v. Ortiz
12-501 10/22/14
Vinyard v. Palo Alto, Inc. COA 33,702 10/22/14
State v. Mascarenas
COA 33,803 10/22/14
State v. Sarabia
COA 31,155 10/22/14
State v. Flores
COA 32,709 10/22/14
State v. Green
COA 31,787 10/21/14
State v. Eustace
COA 33,727 10/21/14
Pittman v.
12-501 10/20/14
N.M. Corrections Dept.
State v. Roberts
COA 33,766 10/20/14
Benavidez v. Bravo
12-501 10/20/14
Gonzales v. Sanchez
12-501 10/16/14
Perry v. Franco
12-501 10/15/14
Brown v. Kellogg
COA 32,988 10/15/14
State v. Van Zile
COA 33,975 10/14/14
State v. Luevano
COA 31,741 10/14/14
Freeman v. Love
COA 32,542 10/10/14
Response filed 10/24/14
Pax v. Horton
12-501 10/08/14
Lujan v. N.M. Dept.
of Transportation
COA 31,883 09/24/14
Finnell v. Horton
12-501 09/22/14
CYFD v. Cynthia D.
COA 33,140 09/18/14
Response ordered; due 11/14/14
Roybal v. Wrigley
12-501 09/16/14
State v. Duran
COA 33,271 09/12/14
Cantone v. Franco
12-501 09/11/14
Savage v. State
12-501 09/08/14
O’Neill v. Bravo
12-501 08/26/14
No. 34,796
No. 34,819
No. 34,777
No. 34,790
No. 34,765
No. 34,793
No. 34,775
No. 34,776
No. 34,748
No. 34,731
No. 34,739
No. 34,706
No. 34,691
No. 34,633
No. 34,589
No. 34,574
No. 34,571
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Miller v. Ortiz
12-501
McGhee v. State
12-501
State v. Dorais
COA 32,235
Response filed 7/31/14
Venie v. Velasquz
COA 33,427
Response ordered; due 8/22/14
Helfferich v. Frawner
12-501
Isbert v. Nance
12-501
State v. Merhege
COA 32,461
Serna v. Franco
12-501
Smith v. State
12-501
Helfferich v. Frawner
12-501
Holguin v. Franco
12-501
Camacho v. Sanchez
12-501
Wetson v. Nance
12-501
Response ordered; filed 7/14/14
Vespender v. Janecka
12-501
Seager v. State
12-501
Montano v. Hatch
12-501
Response ordered; filed 7/14/14
Fresquez v. State
12-501
Benavidez v. State
12-501
Response ordered; filed 5/28/14
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Response ordered; filed 1/22/13
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Response ordered; due 10/24/12
Utley v. State
12-501
08/08/14
07/17/14
07/02/14
06/27/14
06/24/14
06/23/14
06/19/14
06/13/14
06/06/14
05/29/14
05/21/14
05/13/14
05/07/14
04/29/14
04/23/14
04/21/14
04/07/14
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but not yet Submitted to the Court:
(Parties preparing briefs) No. 33,725 State v. Pasillas
No. 33,837 State v. Trujillo
No. 33,877 State v. Alvarez
No. 33,930 State v. Rodriguez
No. 33,994 Gonzales v. Williams
No. 33,863 Murillo v. State
No. 33,810 Gonzales v. Marcantel
No. 34,363 Pielhau v. State Farm
No. 34,274 State v. Nolen
No. 34,400 State v. Armijo
No. 34,443 Aragon v. State
No. 34,516 State v. Sanchez
No. 34,548 State v. Davis
No. 34,549 State v. Nichols
No. 34,526 State v. Paananen
No. 34,522 Hobson v. Hatch
No. 34,582 State v. Sanchez
Date Writ Issued
COA 31,513 09/14/12
COA 30,563 11/02/12
COA 31,987 12/06/12
COA 30,938 01/18/13
COA 32,274 08/30/13
12-501 08/30/13
12-501 08/30/13
COA 31,899 11/15/13
12-501 11/20/13
COA 32,139 12/20/13
12-501 02/14/14
COA 32,994 02/14/14
COA 28,219 03/14/14
COA 30,783 03/28/14
COA 31,982 03/28/14
12-501 03/28/14
COA 32,862 04/11/14
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
11
Writs of Certiorari
No. 34,637
No. 34,613
No. 34,476
No. 34,694
No. 34,669
No. 34,650
No. 34,630
No. 34,764
No. 34,789
No. 34,769
No. 34,786
No. 34,784
No. 34,805
No. 34,798
No. 34,843
No. 34,834
No. 34,772
No. 34,726
No. 34,668
No. 34,855
No. 34,728
No. 34,812
No. 34,886
No. 34,866
No. 34,854
No. 34,830
No. 34,826
State v. Serros
COA 31,975
Ramirez v. State
COA 31,820
State v. Pfauntsch
COA 31,674
State v. Salazar
COA 33,232
Hart v. Otero County Prison 12-501
Scott v. Morales
COA 32,475
State v. Ochoa
COA 31,243
State v. Slade
COA 32,681
Tran v. Bennett
COA 32,677
State v. Baca
COA 32,553
State v. Baca
COA 32,523
Silva v. Lovelace Health
Systems, Inc.
COA 31,723
King v.
Behavioral Home Care COA 31,682
State v. Maestas
COA 31,666
State v. Lovato
COA 32,361
SF Pacific Trust v.
City of Albuquerque
COA 30,930
City of Eunice v. N.M. Taxation
and Revenue Dept.
COA 32,955
Deutsche Bank v.
Johnson
COA 31,503
State v. Vigil
COA 32,166
Rayos v. State
COA 32,911
Martinez v. Bravo
12-501
Ruiz v. Stewart
12-501
State v. Sabeerin COA 31,412/31,895
State v. Yazzie
COA 32,476
State v. Alex S.
COA 32,836
State v. Mier
COA 33,493
State v. Trammel
COA 31,097
05/01/14
05/01/14
05/01/14
06/06/14
06/06/14
06/06/14
06/06/14
08/01/14
08/01/14
08/01/14
08/01/14
08/01/14
08/15/14
08/15/14
08/29/14
08/29/14
08/29/14
08/29/14
09/26/14
10/10/14
10/10/14
10/10/14
10/24/14
10/24/14
10/24/14
10/24/14
10/24/14
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,548 State v. Marquez
COA 30,565 04/15/13
No. 33,971 State v. Newman
COA 31,333 07/24/13
No. 33,808 State v. Nanco
COA 30,788 08/14/13
No. 33,862 State v. Gerardo P.
COA 31,250 08/14/13
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing
COA 30,196 08/28/13
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088 09/11/13
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
No. 34,013 Foy v. Austin Capital
COA 31,421 11/14/13
No. 34,085 Badilla v. Walmart
COA 31,162 12/04/13
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244 12/09/13
No. 34,093 Cordova v. Cline
COA 30,546 01/15/14
12
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
No. 34,194/34,204
King v. Faber
COA 34,116/31,446
COA 30,827
No. 33,999 State v. Antonio T.
No. 33,997 State v. Antonio T.
COA 30,827
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297
No. 34,120 State v. Baca
COA 31,442
No. 34,583 State v. Djamila B.
COA 32,333
No. 34,122 State v. Steven B. consol. w/
State v. Begaye
COA 31,265/32,136
No. 34,286 Yedidag v.
Roswell Clinic Corp.
COA 31,653
No. 34,499 Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330
No. 34,546 NM Dept. Workforce Solutions v.
Garduno
COA 32,026
No. 34,271 State v. Silvas
COA 30,917
No. 34,365 Potter v. Pierce
COA 31,595
No. 34,435 State v. Strauch
COA 32,425
No. 34,447 Loya v. Gutierrez
COA 32,405
No. 34,295 Dominguez v. State
12-501
COA 32,335
No. 34,501 Snow v. Warren Power
No. 34,311 State v. Favela
COA 32,044
No. 34,607 Lucero v.
Northland Insurance
COA 32,426
No. 34,554 Miller v.
Bank of America
COA 31,463
No. 34,473 Mandeville v.
Presbyterian Healthcare COA 32,999
COA 32,353
No. 34,488 State v. Norberto
No. 34,487 State v. Charlie
COA 32,504
COA 32,680
No. 34,644 Valenzuela v. Snyder
No. 34,558 State v. Ho
COA 32,482
02/24/14
02/26/14
02/26/14
03/26/14
03/26/14
07/29/14
08/11/14
08/11/14
08/13/14
08/13/14
08/25/14
08/25/14
08/27/14
08/27/14
09/24/14
10/01/14
10/27/14
10/29/14
11/10/14
11/10/14
11/17/14
11/17/14
11/19/14
11/19/14
Opinion on Writ of Certiorari:
No. 34,128
Benavides v.
Eastern N.M. Medical
Date Opinion Filed
COA 32,450 11/06/14
Writ of Certiorari Quashed:
No. 34,498
No. 34,398
Hightower v. State
State v. Garcia
Date Order Filed
12-501 11/07/14
COA 31,429 11/07/14
Petition for Writ of Certiorari Denied:
No. 34,927
No. 34,926
No. 34,560
State v. Wilson
State v. Miles T.
Hartzell v. State
Date Order Filed
COA 33,352 11/06/14
COA 33,606 11/06/14
12-501 11/06/14
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Wendy F. Jones, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925
Published Opinions
No. 31413
Effective November 7, 2014
9th Jud Dist Roosevelt JR-10-26, STATE v DEANGELO M (affirm in part, reverse in part and remand)
11/4/2014
Unublished Opinions
No. 33626 1st Jud Dist Santa Fe CR-11-513, STATE v E BACA (affirm)
11/3/2014
No. 34005 13th Jud Dist Valencia CV-12-588, BOKF NA v L LOPEZ (affirm)
11/3/2014
No. 33208 1st Jud Dist Santa Fe CV-10-218, F VENETICO v BANK OF NEW YORK (affirm)
11/4/2014
No. 33422 3rd Jud Dist Dona Ana CR-12-1553, STATE v A OLAGUE (affirm)
11/4/2014
No. 33429 9th Jud Dist Curry CV-12-144, T NEWTON v W NEWTON (affirm)
11/4/2014
No. 33556 2nd Jud Dist Bernalillo LR-11-26, STATE v A TAFOYA (affirm)
11/4/2014
No. 33572 5th Jud Dist Chaves JQ-13-8, CYFD v YVONNE T (affirm)
11/4/2014
No. 32564 8th Jud Dist Taos CR-11-97, STATE v M FERNANDEZ (dismiss)
11/4/2014
No. 33725 1st Jud Dist Santa Fe CV-12-702, R DILLS v NM HEART INSTITUTE (dismiss)
11/5/2014
No. 33957 13th Jud Dist Valencia CV-14-615, STRENGTH FOR TOD v K ENRIQUEZ (affirm)
11/6/2014
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
13
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Clerk’s Certificate
of Change to Inactive
Status
Effective October 30, 2014:
David D. Brisco
501 W. Broadway, Suite 1610
San Diego, CA 92101
Effective November 4, 2014:
Timothy O. Garner
PO Box 2126
105 S. Arizona
Silver City, NM 88062-2126
Effective October 16, 2014:
Jerome Marshak
801 Old Santa Fe Trail
Santa Fe, NM 87505
Effective October 18, 2014:
Elaine M. Moore
PO Box 8
Tomé, NM 87060-0008
Dated Nov. 10, 2014
Clerk’s Certificate
of Address and/or
Telephone Changes
Brian C. Bjorndahl
900 E. Camino Alberca
Tucson, AZ 85718
520-403-5944
bjorndahl1950@gmail.com
Robert M. Bodnar
Federal Labor Relations
Authority
901 Market Street, Suite 470
San Francisco, CA 94103
415-356-5000 Ext. 2019
415-356-5017 (fax)
rbodnar@flra.gov
David Kale Clements
Office of the Twelfth Judicial
District Attorney
1000 New York Avenue,
Room 101
Alamogordo, NM 88310
575-437-3640
dclements@da.state.nm.us
14
Clerk’s Certificate of
Indefinite Suspension
from Membership
in the State Bar
of New Mexico
Effective October 22, 2014:
Marcos Gonzalez
1803 Montoya Street NW
Albuquerque, NM 87104
505-604-1628
505-224-9554 (fax)
gonzalezlaw@gmail.com
Clerk’s Certificate
of Disbarment
On October 22, 2014:
Alain Jackson
423 Sixth Street NW
Albuquerque, NM 87102
Shoshanah D. Epstein
Office of the State Engineer
PO Box 25102
130 South Capitol Street
(87501)
Santa Fe, NM 87504-5102
505-827-3824
505-476-7408 (fax)
shoshanah.epstein@state.nm.us
Heather Call Fuller
500 Chadmore South Drive
Charlotte, NC 28270
704-574-5755
heathercfuller@gmail.com
Fern J. Goodman
115 West Santa Fe Avenue,
Unit J
Santa Fe, NM 87505
505-466-6191
fernjgoodman@gmail.com
Anthony David Griego
Chapman and Charlebois, PC
PO Box 25286
612 First Street NW (87102)
Albuquerque, NM 87125-5286
505-242-6000
505-213-0561 (fax)
anthony@cclawnm.com
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
Clerk’s Certificate
of Name and Address
Change
Clerk’s Certificate of
Reinstatement
to Active Status
As of October 25, 2014
Tiffany Elaine Dowell
Lashmet f/k/a Tiffany Elaine
PO Box 185
White Deer, TX 79097-0185
505-328-9375
tdowell@tamu.edu
As of October 27, 2014:
Michael P. Maloney
7 Park Street, Suite 201
Attleboro, MA 02703
and
166 North Main Street
Attleboro, MA 02703
As of October 27, 2014
Lily C. Richardson f/k/a
Lily C. Compton
Resnick & Louis, P.C.
643 Highway 314 NW
Los Lunas, NM 87031
505-652-1339
lcompton@rlattorneys.com
Clerk’s Certificate of
Withdrawal
Donald F. Harris
1516 San Pedro Drive NE
Albuquerque, NM 87110
505-503-1637
505-880-8738 (fax)
harrislaw@comcast.net
Jennifer M. Heim
Clark Hill PLC
14850 N. Scottsdale Road,
Suite 500
Scottsdale, AZ 85254
480-684-1110
jheim@clarkhill.com
Robert E. Hill
The Hill Law Group
7341 W. Charleston Blvd.,
Suite 160
Las Vegas, NV 89117
702-852-1552
702-240-1440 (fax)
robhill119@gmail.com
Shauna Strong Hill
The Hill Law Group
7341 W. Charleston Blvd.,
Suite 160
Las Vegas, NV 89117
702-852-1552
702-240-1440 (fax)
shaunalaw1@gmail.com
Effective November 4, 2014:
Robert R. Rothstein
Rothstein, Donatelli, Hughes,
Dahlstrom, Schoenburg
& Bienvenu, LLP
PO Box 8180
1215 Paseo de Peralta (87501)
Santa Fe, NM 87504-8180
Jordan Kessler
Holland & Hart, LLP
PO Box 2208
110 N. Guadalupe Street,
Suite 1 (87501)
Santa Fe, NM 87504-2208
505-988-4421
505-983-6043 (fax)
jlkessler@hollandhart.com
Morgan Lindsay Maddoux
Latham & Watkins LLP
555 Eleventh Street NW,
Suite 1000
Washington, DC 20004
202-637-3318
morgan.maddoux@lw.com
Michael P. Maloney
Maloney & Associates LLC
495 Central Avenue
Seekonk, MA 02771
508-409-4600
815-301-9901 (fax)
michael@mpmaloneylaw.com
Clerk’s Certificates
Clinton W. Marrs
Marrs Law, Ltd.
1000 Gold Avenue SW
Albuquerque, NM 87102
505-433-3926
505-639-4161 (fax)
clinton@marrslegal.com
W. Will Masters III
Sprouse Shrader Smith PLLC
701 S. Taylor Street, Suite 500
Amarillo, TX 79101
806-468-3374
806-373-3454 (fax)
will.masters@sprouselaw.com
Sandra E. Nemeth
411 W. Santa Fe Avenue,
Suite 1
Grants, NM 87020
505-287-9030
senemeth@gmail.com
Sarah Joy-Simpson Parks
Pegasus Legal Services for
Children
3201 Fourth Street NW
Albuquerque, NM 87107
505-244-1101
sparks@sparksimages.com
Joy Elaine Pendleton
726 E. Michigan Street,
Suite 220
Hobbs, NM 88240
575-390-0772
855-824-9001 (fax)
jpen143@yahoo.com
Mark Pustay
United South Broadway
Corporation
PO Box 25242
1500 Walter Street SE (87102)
Albuquerque, NM 87125-5242
505-349-3747
505-764-3005 (fax)
mpustay@
unitedsouthbroadway.org
Mark Reynolds
New Mexico Court of Appeals
PO Box 2008
237 Don Gaspar Avenue
(87501)
Santa Fe, NM 87504-2008
505-827-4925
505-827-4946 (fax)
coamhr@nmcourts.gov
Joseph Newton Riggs III
PO Box 804
Tesuque, NM 87574-0804
505-710-6362
riggslaw@aol.com
Richard Allan Simms
221 N. Ironwood Street
Gilbert, AZ 85234
480-306-5661
richard.simms@aol.com
Filmore E. Rose
Rimon, PC
800 Fifth Avenue, Suite 4100
Seattle, WA 98104
206-538-2166 (phone and fax)
filmore.rose@rimonlaw.com
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PO Box 42094
Austin, TX 78704-2094
Toni Brinton Smith
Foster & Harvey, PC
3300 North A Street, Bldg. 7,
Suite 120
Midland, TX 79705
432-704-5040
432-704-5043 (fax)
toni@fosterandharvey.com
Laura K. Vega
Butt, Thornton & Baehr, PC
PO Box 3170
4101 Indian School Road NE,
Suite 300 (87110)
Albuquerque, NM 87190-3170
505-884-0777
505-889-8870 (fax)
lkvega@btblaw.com
Brandon Hertzler
PO Box 3006
Albuquerque, NM 87190-3006
505-999-1209
505-999-1215 (fax)
Nicholas Koluncich III
Law Offices of Nicholas
Koluncich III, LLC
500 Marquette Avenue NW,
Suite 1200
Albuquerque, NM 87102
505-881-2228
505-881-4288 (fax)
nkoluncich@
newmexicoclassactions.com
George Christian Kraehe
205 Walden Street, Apt. 3-D
Cambridge, MA 02140
William C. Littlefield Jr.
1804 Garnet Avenue, Suite 258
San Diego, CA 92109
858-205-4000
wcllittlefield@gmail.com
Joan Maureen Waters
7405 Cielo Grande NE
Albuquerque, NM 87109
505-459-6944
jmwabq@aol.com
Joel Matthew Young
Joel Young,
Attorney at Law, LLC
PO Box 27558
504 Fourteenth Street NW
(87104)
Albuquerque, NM 87125-7558
505-243-5696
505-217-1061 (fax)
jmyoung@swcp.com
Jorge A. Alvarado
Law Offices of the Public
Defender
301 N. Guadalupe Street
Santa Fe, NM 87501
505-395-2887
jorge.alvarado@lopdnm.us
Mary M. Dreyer
U.S. Army
Office of the
Staff Judge Advocate
Administrative & Civil Law
Division, Bldg. 113
Fort Bliss, TX 79916
915-744-9562
mary.m.dreyer.civ@mail.mil
Marcia L. Lander
Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
Albuquerque, NM 87102
505-835-2243
505-841-6953 (fax)
marcia.lander@lopdnm.us
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Law Offices of the Public
Defender
506 S. Main Street, Suite 700
Las Cruces, NM 88001
575-541-3193
575-524-6765 (fax)
james.locatelli@lopdnm.us
Lisa Y. Schatz-Vance
Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
Albuquerque, NM 87102
505-219-2884
505-796-4595 (fax)
lisa.schatz@lopdnm.us
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PO Box 32361
Santa Fe, NM 87594-2361
505-570-8869
shapirorichard24@gmail.com
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Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
Albuquerque, NM 87102
505-369-3611
brian.tucker@lopdnm.us
Judith Ferrell-Holbrook
PO Box 93997
Albuquerque, NM 87199-3997
505-232-9440
jafhlaw@gmail.com
Robert Lara
Third Judicial District Court
201 W. Picacho Avenue
Las Cruces, NM 88005
575-528-8326
575-528-8342 (fax)
lcrdrxl@nmcourts.gov
Taylor Wills Edwards Brown
Law Offices of the Public
Defender
506 S. Main Street, Suite 700
Las Cruces, NM 88001
575-541-3193 Ext. 10506
575-993-5083 (fax)
taylor.brown@lopdnm.us
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
15
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective November 19, 2014
Pending Proposed Rule Changes Open for
Comment:
Comment Deadline
For 2014 year-end rule amendments that become effective Dec. 31,
2014, see the Nov. 5, 2014, issue of the Bar Bulletin (Vol. 53, No. 45)
or visit the New Mexico Compilation Commission’s website at http://
www.nmcompcomm.us/nmrules/NMRuleSets.aspx.
Recently Approved Rule Changes
Since Release of 2014 NMRA:
Effective Date
Children’s Court Rules and Forms
10-102
10-315
10-317
10-323
Commencement of action. 08/31/14
Custody hearing.
07/01/14
Notice of change in placement. 08/31/14
Dismissal of a respondent or child;
party dismissal sheet. 08/31/14
10-343
Adjudicatory hearing; time limits;
continuances.07/01/14
10-501A Abuse and neglect party information sheet. 08/31/14
10-565
Advance notice of change of placement. 08/31/14
10-566
Emergency notice of change of placement. 08/31/14
10-567
Abuse and neglect party dismissal sheet. 08/31/14
Rules of Appellate Procedure
12-206A Expedited appeals from Children’s Court
custody hearings.
12-303 Appointment of counsel.
07/01/14
07/01/14
Rules Governing Admission to the Bar
15-102 Admission requirements.
15-103Qualifications.
15-105 Application fees.
15-107 Admission by motion.
06/01/15
06/01/15
06/01/15
06/01/15
Supreme Court General Rules
23-109
Chief judges.
04/23/14
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
16
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Certiorari Granted, August 29, 2014, No. 34,834
From the New Mexico Court of Appeals
Opinion Number: 2014-NMCA-093
SANTA FE PACIFIC TRUST, INC., a Florida corporation,
Plaintiff-Appellant,
v.
CITY OF ALBUQUERQUE, a municipal corporation,
Defendant-Appellee
Docket No. 30,930 (filed June 30, 2014)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
NAN G. NASH, District Judge
BILL CHAPPELL, JR.
MICHAEL HOEFERKAMP
CHAPPELL LAW FIRM, P.A.
Albuquerque, New Mexico
for Appellant
DAVID J. TOUREK
City Attorney
ROBERT I. WALDMAN
Assistant City Attorney
CITY OF ALBUQUERQUE
Albuquerque, New Mexico
JOHN S. CAMPBELL
CAMPBELL & WELLS, P.A.
Albuquerque, New Mexico
for Appellee
CAROL A. CLIFFORD
JONES, SNEAD, WERTHEIM
& CLIFFORD, P.A.
Santa Fe, New Mexico
for tw telecom of N.M., LLC
ALICE T. LORENZ
LORENZ LAW
Albuquerque, New Mexico
Opinion
Cynthia A. Fry, Judge
{1} Plaintiff Santa Fe Pacific Trust (SFPT)
owned property in downtown Albuquerque, New Mexico (the Property), which
two mayors targeted as a potential location
for an events arena. Because of considerable publicity surrounding the proposed
condemnation, which never came to
fruition, and because of various concrete
steps taken by the administration of the
City of Albuquerque (the City) to see the
arena project through, SFPT claims that it
lost potential sales and leases of the Property. It filed a complaint against the City
asserting, among other things, claims for
inverse condemnation and deprivation of
due process.
{2} We affirm summary judgment
entered in favor of the City on these
claims. We hold that SFPT failed to
demonstrate entitlement to an inverse
condemnation claim under federal
law, which provides that “[m]ere fluctuations in value during the process of
governmental decision[-]making . . . are
incidents of ownership [that] cannot be
considered as a taking in the constitutional sense.” Agins v. City of Tiburon,
447 U.S. 255, 263 n.9 (1980) (internal
quotation marks and citation omitted),
abrogated on other grounds by Lingle
v. Chevron U.S.A., Inc., 544 U.S. 528
(2005). We further adopt a means for
assessing whether pre-condemnation
planning and publicity can constitute
an unconstitutional “taking” under our
state laws regarding inverse condemnation and conclude that, while SFPT
established the City’s present concrete
intention to condemn, SFPT failed to
show that the City took any action that
substantially interfered with the use
and enjoyment of the Property. We also
conclude that SFPT failed to establish its
substantive due process claim.
BACKGROUND
Factual Background
{3}Although SFPT maintains that there
are disputed facts regarding the City’s
intent during the time leading up to this
lawsuit, most of the operative facts are
undisputed. SFPT purchased the Property
in 1997 and, in 2000, it began a business
known as Bigbyte.cc on the Property for
disaster recovery, data storage, and colocation. SFPT and Bigbyte.cc are related
entities, with the same shareholders, directors, and corporate officers. Beginning
in 2003, Bigbyte.cc leased approximately
66.26 percent of the leasable space in the
building on the Property.
{4}At about this same time, in articles
published in late 1998 and early 1999,
Mayor Jim Baca began to publicly express
interest in developing a downtown arena.
In 1999, Mayor Baca informed SFPT’s
principals that the Property was the best
site for an arena project and that the Property would be taken for that purpose.
{5}In May 2000, the City adopted the
2010 Downtown Development Plan that
included the goal of constructing an events
arena on a proposed site that included the
Property. Before anything definitive was
done in furtherance of this goal, in September 2003, SFPT and the City entered
into an agreement (Exchange Agreement),
which recited that the City wanted to obtain
title to a parcel owned by SFPT (SFPT tract)
on the southeast corner of the Property and
that SFPT wanted to obtain title to a parcel
owned by the City (City tract) on the northeast corner of the Property. The Exchange
Agreement provided that SFPT would
grant the City a permanent roadway easement covering the SFPT tract and that the
parties would then exchange title to their
respective tracts. The Exchange Agreement
contemplated that the City and SFPT would
share the cost of certain improvements to
the City tract before the exchange would
take place. SFPT conveyed the easement to
the City, but the exchange of title did not
take place. The Exchange Agreement did
not say anything about the main portion of
the Property, which contained the building
that housed Bigbyte.cc and office space that
SFPT wanted to lease to other commercial
entities. Therefore, in this Opinion, we use
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
17
Advance Opinions
the term “the Property” to denote the property owned by SFPT that did not include
either the SFPT tract or the City tract.
{6} In January 2004, the City administration began a process to determine the
feasibility of its goal to construct the arena,
issued a request for information (RFI)
to interested developers, and publicly
announced the proposed project. Arena
Management and Construction, LTD
(AMC) responded to the RFI and proposed financing for the arena without the
need for public guarantee or subsidy. The
city council approved a memorandum of
understanding (MOU) with AMC regarding AMC’s financing commitment. The
City then conducted preliminary negotiations with SFPT to determine whether the
Property could be acquired by purchase
agreement.
{7} Ultimately, however, AMC could not
provide a commitment for the financing
proposed by the MOU. The City administration, as a result of its negotiations with
SFPT, then submitted to the city council a
proposed purchase agreement and an option agreement to buy the Property. The city
council did not approve either agreement.
{8} The City administration in September
2006 issued a request for proposal (RFP)
on the arena project that included the
Property, and ABQ Downtown Development Team (ADDT) submitted a proposal.
The City administration recommended
that ADDT be awarded a contract under
the RFP, but the city council did not approve the recommendation.
{9}The City administration continued
to explore the possibility of purchasing
the Property from SFPT. In 2008, ADDT
submitted a proposal for the arena that
included an alternate location at Central
and Broadway, and the city council approved the proposal that ADDT submit
a viability assessment study for the arena
at the Central and Broadway location. As
of the date the City filed its motion for
summary judgment in this case, the arena
project continued to be a planning goal of
the City administration, and the proposed
site for the arena included the alternate
Central and Broadway location.
{10} From 1999 through 2007, local
newspapers published many articles about
the proposed arena project, and several
articles mentioned the Property as a potential site for the arena. One article labeled a
diagram of the Property with the phrase,
“To be condemned,” and another article
labeled a photo of the Property with “slated
for condemnation.” Many City-generated
18
http://www.nmcompcomm.us/
documents also showed potential placement of the arena on the Property and
expressed the City’s desire to acquire the
Property. Mayor Baca’s successor, Mayor
Martin Chávez, held press conferences
at which he indicated that the Property
was the potential location for the arena
project. In January 2004, Mayor Chávez
announced that construction on the
arena was expected to begin in late spring.
Subsequent announcements indicated
the imminent beginning of construction.
However, the city council never approved
the acquisition or condemnation of the
Property or appropriated funding for
construction of an arena.
{11} SFPT submitted evidence that during this period of time from 2004 to 2008,
several entities considered buying or leasing part or all of the Property and then
declined to do so. While some potential
buyers and tenants indicated that they
lost interest in the Property because of the
City’s threatened condemnation, others
had different reasons for declining to buy
or lease the premises or they did not state
why they opted not to buy or lease. For
whatever reason, it is undisputed that as
of August 2009, SFPT had been unable to
lease the third floor of the Property despite
there being interested parties. Also during
that time, SFPT would have operated at a
loss if not for leases to related companies,
such as Bigbyte.cc.
Proceedings
{12} SFPT filed suit against the City in
October 2006 and asserted claims for
inverse condemnation (alleging that the
City’s publicizing its plan to condemn the
Property caused the loss of tenant leases),
deprivation of due process (alleging
deprivation of tenant leases without due
process), tortious interference with contractual relations (related to loss of tenant
leases), and breach of contract (related to
the Exchange Agreement).
{13} On the City’s motion, which SFPT
did not oppose, the district court dismissed SFPT’s claim of tortious interference. The City then filed a motion for
summary judgment on SFPT’s claims for
inverse condemnation and deprivation
of due process. While that motion was
pending, the City filed a condemnation
complaint against SFPT seeking to acquire
SFPT’s interest in the Exchange Agreement
and in both the SFPT tract and the City
tract that were the subjects of the Exchange
Agreement. The district court consolidated
SFPT’s action against the City with the
City’s action against SFPT.
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
{14} The district court entered summary judgment in favor of the City on
SFPT’s claims of inverse condemnation
and deprivation of due process. This left
unresolved SFPT’s claim against the City
for breach of the Exchange Agreement and
the City’s condemnation claim (related to
the exchange property) against SFPT. The
parties ultimately settled these outstanding
claims, and the district court dismissed
them.
{15} SFPT appeals the summary judgment in favor of the City and the district
court’s order quashing subpeonas issued
to two non-parties, TW Telecom of New
Mexico, LLC, and Prism Technologies,
LLC. Because we affirm the district court’s
summary judgment on SFPT’s claims for
inverse condemnation and deprivation
of due process, we need not address the
order quashing the subpoenas. This is
because the information sought by the
subpoenas related to potential lessees lost
as a result of the City’s pre-condemnation
planning and publicity, and we conclude
that the loss of lessees does not constitute
damage to or taking of property under the
circumstances of this case.
DISCUSSION
A. Summary Judgment
{16} We review an order granting summary judgment de novo. Self v. United
Parcel Serv., Inc., 1998-NMSC-046, ¶ 6,
126 N.M. 396, 970 P.2d 582. “Summary
judgment is appropriate where there are
no genuine issues of material fact and the
movant is entitled to judgment as a matter of law.” Id. In addition, whether the
facts are enough to constitute a taking is a
question of law. 11 Eugene McQuillin, The
Law of Municipal Corporations, § 32.26 at
521-23 (2010).
{17} In its motion for summary judgment, the City argued that its activities
with respect to the Property amounted to
nothing more than planning and publicity
surrounding the proposed arena project
and that planning and publicity do not
constitute a “taking” under either New
Mexico or federal condemnation law. In
response to the motion, SFPT generally
argued that New Mexico law recognizes
that damage to property—without a
physical invasion of property—can give
rise to a claim for inverse condemnation.
SFPT further argued that the City’s activities, which included mayoral press conferences and other publicity specifically
targeting the Property, damaged SFPT’s
interest in the Property and therefore constituted a taking. SFPT also maintained
Advance Opinions
that the City’s failure to convey its tract
as required by the Exchange Agreement
deprived SFPT of the physical use of that
tract, and that this deprivation informed
the analysis of whether a taking had occurred.
{18} In its letter decision granting the
City’s motion for summary judgment, the
district court determined that the City’s
pre-condemnation planning and publicity
regarding the Property was not a taking
for purposes of inverse condemnation.
Relying on an Alaska case with similar
facts, the court concluded that “the City’s
publicity does not show a present concrete intention to acquire the Property.
Additionally, [SFPT] has not shown that
the City substantially interfered with [its]
property rights by denying a permit or
otherwise prohibiting [SFPT] from using
the [P]roperty beneficially.” The court
also concluded that “[t]he facts of the Exchange Agreement . . . are not sufficiently
tied to the Property claims to defeat [the]
City’s motion.” As for SFPT’s claim of a
due process deprivation, the court determined that the claim was subsumed into
its inverse condemnation claim and that
“[w]ithout a taking, the [c]ourt cannot
find that [SFPT]’s due process rights were
violated.”
{19} On appeal, SFPT makes nine arguments challenging the summary judgment
in favor of the City, which we combine
into five. SFPT argues that: (1) the district
court erroneously applied the Alaska and
federal standards regarding what constitutes a taking and that under the proper
standards, the City’s activities constituted
a taking as a matter of law; (2) the district
court erroneously determined that SFPT
had no claim for deprivation of due process; (3) alternatively, the City’s breach of
the Exchange Agreement constituted a
physical taking that resulted in injury to
the Property, which was adjacent to the
tracts covered by the Exchange Agreement; (4) disputed issues of fact regarding
the City’s intent to condemn the Property
precluded summary judgment; and (5) the
district court erroneously ruled on two
preliminary issues by improperly fixing
the date of the alleged taking and by failing
to allow a complete deposition of Mayor
Chávez.
1. Applicable Standards
{20} SFPT’s inverse condemnation claim
relied on both federal law and state law.
SFPT contends that the district court applied erroneous standards in rejecting both
aspects of its claim.
http://www.nmcompcomm.us/
a. Federal Law
{21} The district court rejected SFPT’s
claim of inverse condemnation under the
takings clause of the Fifth Amendment
to the United States Constitution as applied to the states through the Fourteenth
Amendment. In doing so, the court relied
in part on Agins, in which the United
States Supreme Court stated that a city’s
pre-condemnation activities did not “so
burden[] the appellants’ enjoyment of
their property as to constitute a taking.”
447 U.S. at 263 n.9. The Court in Agins
also stated that “[m]ere fluctuations in
value during the process of governmental
decision[-]making, absent extraordinary
delay, are incidents of ownership. They
cannot be considered as a taking in
the constitutional sense.” Id. (internal
quotation marks and citation omitted).
The district court also mentioned First
English Evangelical Lutheran Church v.
County of Los Angeles, which discussed
Agins and another United States Supreme
Court decision, and stated that “these
cases merely stand for the unexceptional
proposition that . . . depreciation in value
of the [condemned] property by reason of
preliminary activity is not chargeable to
the government.” First English Evangelical
Lutheran Church, 482 U.S. 304, 320 (1987),
holding limited on other grounds by TahoeSierra Preservation Council, Inc. v. Tahoe
Reg’l Planning Agency, 535 U.S. 302 (2002).
{22} SFPT challenges the district court’s
reliance on Agins and First English because “the Agins decision was overruled
in Lingle.” In addition, SFPT argues that
the district court should have applied the
balancing test in Penn Central Transportation Co. v. City of New York, 438 U.S.
104, 122-23 (1978). We do not agree with
SFPT’s argument regarding Agins and,
even if the Penn Central test is applied, it
does not support SFPT’s contention that
the City’s planning and publicity in this
case constituted a taking under the United
States Constitution.
{23} First, as SFPT itself acknowledges,
the United States Supreme Court in Lingle
did not overrule or abrogate the statement
in Agins to the effect that pre-condemnation
governmental activities do not constitute a
taking. Instead, the Court eliminated one
of the methods of identifying regulatory
takings that was announced in Agins. See
Lingle, 544 U.S. at 545 (explaining that “the
‘substantially advances’ formula announced
in Agins[, which held that the application
of a zoning law to a property is a taking
if the law does not substantially advance
legitimate state interests,] is not a valid
method of identifying regulatory takings
for which the Fifth Amendment requires
just compensation”). Thus, the undisturbed
portion of Agins is persuasive authority for
the proposition that federal law would not
recognize the City’s planning and publicity
in the present case as a taking under the
United States Constitution.
{24} Second, the balancing test of Penn
Central does not support SFPT’s position in this case. Penn Central involved
the question whether New York City’s
historic preservation restrictions, which
culminated in a prohibition against
specific development schemes for Grand
Central Terminal, constituted a taking
under the Fifth Amendment. 438 U.S. at
115-18. In answering the question in the
negative, the Court reviewed the ad hoc
factors that may inform the determination
of what constitutes a taking, including
(1) the economic impact of the government regulation on both the claimant
and “investment-backed expectations,”
id. at 124, (2) the character of the government action (i.e., physical invasion
versus burdening economic interests “to
promote the common good”), id., and (3)
whether the government action acquires
“resources to permit or facilitate uniquely
public functions.” Id. at 128. The problem
with application of these factors to the
circumstances in the present case is that
the Court in Penn Central drew the factors from cases where there was either a
concrete government action, such as a
regulation or the acquisition of resources
that “interfere[d] with interests that were
sufficiently bound up with the reasonable
expectations of the claimant to constitute
‘property’ for Fifth Amendment purposes.” Id. at 125; see id. 124-28 and cases
cited therein. Here, SFPT has not shown
the existence of such concrete government action or acquisition of resources;
it has shown nothing more than “[m]ere
fluctuations in value during the process of
governmental decision[-]making,” which
are “incidents of ownership” that “cannot
be considered as a taking in the constitutional sense.” Agins, 447 U.S. at 263 n.9
(internal quotation marks and citation
omitted). We therefore conclude that the
district court properly granted summary
judgment to the City on SFPT’s federal
inverse condemnation claim.
b. State Law
{25} In rejecting SFPT’s state law claim,
the district court’s letter decision cited Joseph M. Jackovich Revocable Trust v. State
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
19
Advance Opinions
Department of Transportation, 54 P.3d 294
(Alaska 2002), which, like the present case,
involved pre-condemnation activities of a
governmental entity that allegedly resulted
in reduced values for targeted properties.
Id. at 295. The Alaska Supreme Court in
Jackovich relied on a two-part inquiry to
determine whether pre-condemnation
publicity and planning constitute a taking
and concluded that a court must ask (1)
whether the government had “publicly announced a present intention to condemn”
the property in question and (2) whether
the government had “done something that
substantially interferes with the landowners’ use and enjoyment of [its] propert[y].”
Id. at 300-01. The district court in the
present case concluded that the City’s planning and publicity failed to satisfy either
requirement.
{26} SFPT challenges the district court’s
reliance on Jackovich, arguing that requiring a claimant to show the government’s
actual intent to condemn property and its
substantial interference with property interests is contrary to New Mexico law. We
are not persuaded. While SFPT is correct
that New Mexico law permits an inverse
condemnation action even if the government’s proposed damage to property is not
a certainty and even if there is no actual
physical taking of property, we nonetheless conclude that in circumstances like
those before us, the Jackovich inquiries are
useful and consistent with New Mexico
precedent.
{27} We begin with New Mexico’s pertinent constitutional and statutory provisions. Article II, Section 20 of the New
Mexico Constitution states, “Private
property shall not be taken or damaged
for public use without just compensation.”
The applicable statute provides:
A person authorized to exercise
the right of eminent domain
who has taken or damaged or
who may take or damage any
property for public use without
making just compensation or
without instituting and prosecuting to final judgment in a court
of competent jurisdiction any
proceeding for condemnation is
liable to the condemnee . . . for
the value thereof or the damage
thereto at the time the property is
or was taken or damaged[.]
NMSA 1978, § 42A-1-29(A) (1983). Case
law interpreting these provisions establishes that a potential condemnor’s damage
to property is compensable for purposes of
20
http://www.nmcompcomm.us/
inverse condemnation and that an actual
physical taking of property is not required.
See Bd. of Cnty. Comm’rs v. Harris, 1961NMSC-165, ¶ 5, 69 N.M. 315, 366 P.2d 710
(stating that “in order for an owner to be
entitled to compensation a taking is not
required—it being sufficient if there are
consequential damages”); see also City of
Santa Fe v. Komis, 1992-NMSC-051, ¶ 11,
114 N.M. 659, 845 P.2d 753 (explaining
that “[the] objective in a condemnation
case is to compensate the landowner for
damages actually suffered. . . . [I]f loss of
value can be proven, it should be compensable regardless of its source.”).
{28} But this does not mean that any
and all consequential damage to property
arguably caused by the pre-condemnation
activity and publicity of a potential condemnor is compensable in a claim for
inverse condemnation. Our Supreme
Court clarified in Public Service Co. of New
Mexico v. Catron that “[m]erely rendering
private property less desirable for certain
purposes . . . will not constitute the damage
. . . but the property itself must suffer some
diminution in substance, or be rendered
intrinsically less valuable, by reason of
the public use.” 1982-NMSC-050, ¶ 7, 98
N.M. 134, 646 P.2d 561 (internal quotation
marks and citation omitted). Thus, the
Court in Catron concluded that owners of
property adjacent to property condemned
for installation of a high voltage transmission line were not entitled to compensation
for the loss in property value resulting
from the transmission line’s noise or from
its interference with the view and radio/
TV reception. Id. ¶¶ 8-15.
{29} Similarly, our Supreme Court stated
in Estate and Heirs of Sanchez v. County of
Bernalillo that a property owner’s right to
the use and enjoyment of his or her property “does not entitle an owner to use property for all economically viable purposes,
and governmental actions imposing an
incidental economic loss will be upheld.”
1995-NMSC-058, ¶ 11, 120 N.M. 395, 902
P.2d 550. In that case, the Court affirmed
summary judgment in favor of the county,
which had denied the plaintiff ’s application for a special use permit in order to
develop its property into a mobile home
park. Id. ¶ 4.
{30} These cases teach that in order to
be compensable, a taking of or damage to
property must invade some substantive or
intrinsic aspect of a landowner’s right to
the use and enjoyment of its property. An
incidental economic loss is not sufficient.
The current case presents the question
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
whether pre-condemnation publicity and
planning can give rise to a cognizable action for inverse condemnation, a question
our appellate courts have never had the
opportunity to address. Courts in other
jurisdictions have considered similar situations, and their reasoning is consistent
with the general principles of New Mexico’s law regarding inverse condemnation.
{31}The Jackovich case is instructive. In
that case, the state of Alaska had developed plans for a road extension project
that would ultimately be built on or near
property owned by the plaintiffs. 54 P.3d
at 295. The state held public hearings on
the location of the project and revised the
project’s design over a period of fifteen
years. Id. Over the years, the state notified
landowners that would be impacted by the
project as to the project’s progress. Id. The
landowners filed an inverse condemnation
action “alleging de facto takings of and
damage to their properties.” Id. at 296. The
Alaska Supreme Court affirmed summary
judgment in favor of the state. Id. at 304.
{32} The Jackovich court summarized the
facts of the case as involving “pre-condemnation publication of notices, information,
plans, and proposals pertaining to a road
improvement project component that . . .
might or might not be built.” Id. at 297. Like
SFPT in the present case, the landowners
in Jackovich complained that all of these
activities caused them to be “unable to
sell their properties” and to “[lose] rental
income because pre-condemnation announcements discouraged buyers and renters and made improvements infeasible or
economically imprudent.” Id. at 298. And,
like the New Mexico Constitution, Alaska’s
constitution prohibits the taking of or damage to property for public use without just
compensation. Id. In determining whether
pre-condemnation planning and publicity
can constitute a taking or damage in an
inverse condemnation case, the Jackovich
court adopted the two-part inquiry previously mentioned. Id.
{33} The two-part Jackovich inquiry
makes sense. As for the first requirement—
a present intention to condemn specific
property—it would be imprudent to allow
compensation in an inverse condemnation
case if the condemning entity did not have
such a present intention. For example, if
the mayor of Albuquerque announced that
the city was considering the possibility of
condemning certain property, at the earliest, twenty years from now, any damage to
the condemnee’s property would be purely
speculative. With respect to the second
Lawyer
N E W
M E X I C O
November 2014 Volume 9, No. 4
www.nmbar.org
Telemedicine
Health Law Section
New Mexico Lawyer - November 2014 1
DOCTORS
WITHIN
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EVALUATION
CONSULTANTS
New Mexican Doctors Evaluating New Mexicans
Services Provided
• Independent Medical Examinations
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• Second Opinions
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• Medical Chart Review
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Providers
• Board certified
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• Offices in New Mexico
• Physicians, Chiropractors and
other New Mexico Care Providers
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• Albuquerque
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Medical Director - Richard Radecki M.D.
For inquiries please contact Kathleen Grove.
3874 Masthead Blvd NE, Building G • Albuquerque, NM 87109
Phone: 505.338.2649 • Fax: 505.338.1960
2 New Mexico Lawyer - November 2014
Overview
T
hanks to rapid advances
in technology, the use of
telehealth/telemedicine
has begun to revolutionize the
way healthcare providers care
for their patients. In a nutshell,
telemedicine is the delivery of
direct patient care medical services
via electronic communication.
For a rural state such as New
Mexico, the use of telemedicine
is especially important due to
its potential to alleviate our
widespread provider shortages
by remotely connecting rural and
underserved areas with physicians
and specialists. Telemedicine also
serves to provide medical services
to patients who are too ill or
frail to be transported. While the
potential benefits of telemedicine
are undeniable, there is significant
concern and confusion as to
how the existing statutory and
regulatory frameworks apply to
this new area of healthcare. We
hope that this issue of New Mexico
Lawyer will not only be of interest
to those attorneys who represent
healthcare and telemedicine
providers, but also will introduce
other practitioners to core health
law concepts such as HIPAA,
licensing, and reimbursement.
Generally, medical specialties
that utilize telehealth are:
neurology, psychiatry,
dermatology, family medicine,
internal medicine, cardiology,
critical care, rehabilitation,
pediatrics, obstetrics/
gynecology, speech-language
pathology, and pharmacy.
Telehealth in New Mexico:
Billing and Reimbursement
By Catherine Russell
A
ccording to the Health Resources
and Services Administration, 32
of the 33 New Mexico counties
have at least one Health Professional
Shortage Area.1 Telehealth, the use of
telecommunications technologies to
expand access to health care, public
health, and health education, has the
potential to help reach such areas. This
is especially true in rural communities,
where access to health care is particularly
problematic. For New Mexicans living
in rural and underserved areas, telehealth
and telemedicine offer the opportunity
to have access to resources not previously
available. While telehealth may solve
many issues faced by those living in (and
those providing medical care in) shortage
areas, it is important to be aware of
billing and reimbursement rules that are
particular to telehealth and telemedicine.
Billing and reimbursement are common
concerns for many health care clients.
While billing and reimbursement are
relatively simple concepts, the rules
regarding billing and reimbursement are
incredibly complex. These complexities
are potentially exacerbated by telehealth
and telemedicine scenarios. In order to
understand the intricacies of telemedicine
reimbursement under the various
programs, it is important to have a basic
understanding of the key elements of
each program and the general billing and
reimbursement rules of each program.
Medicare
Medicare is a federal health insurance
program for individuals age 65 or older.
Medicare also covers people younger
than 65 who have certain disabilities
and all individuals who have end-stage
renal disease.2 The primary pieces of
the original Medicare program are
Part A (hospital insurance) and Part
B (medical insurance). Most elderly
individuals do not pay a monthly
premium for Part A because they have
already done so through previous payroll
taxes. Conversely, most individuals pay a
premium for Part B or for prescription
drug coverage (Part D). Telehealth
services, if covered, may be covered
through Part B.
Medicare will pay for a limited number
of Part B eligible services furnished
through a telehealth system.3 To
understand which services are eligible, it
is important to understand the commonly
used terminology. “Originating site”
means the location of the patient at the
time that the service is being furnished.
Originating sites must be authorized
and include physician offices, hospitals,
rural health clinics, Federally Qualified
Health Centers, and Community Mental
Health Centers. The “distant site” is the
location of the physician or practitioner
delivering the service at the time the
service is furnished. Telecommunication
technologies may be utilized in “real-time”
or information may be asynchronous
or “store and forward.” Asynchronous
technologies record data and send the
data to a distant site for consultation at a
later time.
In general, Medicare beneficiaries are
only eligible for a telehealth service if the
originating site is a Health Professional
Shortage Area (“HPSA”) outside of a
Metropolitan Statistical Area or in a
rural census tract or if they are located
in a county outside of a Metropolitan
Statistical Area. Under the Medicare
program, only real-time services that
permit communication between the
practitioner at the distant site and
the patient at the originating site are
While billing and
reimbursement are
relatively simple concepts,
the rules regarding billing
and reimbursement are
incredibly complex.
permitted.4 Medicare, therefore, generally
does not cover asynchronous services.
Professional services that are provided
using telehealth technologies are billed
similarly to other Part B services.
Medicare may reimburse for the
professional service fee, and may pay the
originating site a facility fee.
New Mexico Lawyer - November 2014 3
Medicaid
The New Mexico Medicaid
program, also known as
Centennial Care, is a staterun program for low-income
individuals and families who
meet certain criteria.5 Insurers in
New Mexico, including the state’s
Medicaid program, have been
encouraged to utilize telehealth
technologies. See NMSA 1978,
§ 24-25-5(B) (2007). While
coverage for telehealth services
under the New Mexico Medicaid
program is similar to the federal
Medicare program, there are
important coverage differences.
Like Medicare, the New
Mexico Medicaid program uses
“originating site” and “distant site”
to discuss the relevant locations
of the patient and provider.
The most important difference
between the Medicare and Medicaid
programs is the coverage of asynchronous
telemedicine services. While Medicare
excludes from coverage most services
offered using asynchronous or “store and
forward” telemedicine technologies, the
Medicaid program includes coverage
for services delivered through store and
forward. 8.310.2.12(M)(3) NMAC.
Coverage and provider reimbursement
for services provided using telemedicine
technologies mirrors the coverage and
reimbursement for similar in-person
services. 8.310.2.12(M)(1) NMAC.
Telemedicine providers are reimbursed
for professional services and the
originating site may be reimbursed for a
communication system fee. 8.310.2.12(M)
(4)-(5) NMAC.
Private Insurance
In general, private insurance companies
enjoy more freedom in determining which
services will be covered. However, in 2013,
the New Mexico Legislature passed a
law stating that private insurers in New
Mexico must cover telemedicine services
to the same extent that those services
are covered in-person. NMSA 1978, §
59A-22-49.3 (2013). The law broadly
defines telemedicine to include “the use of
interactive simultaneous audio and video
or store-and-forward technology.” S.B.
0069, 51st Leg., 1st Sess. (N.M. 2013).
This broad coverage requirement indicates
a state-wide commitment to the use of
telemedicine and telehealth technologies.
4 New Mexico Lawyer - November 2014
Conclusion
In short, in order to ensure reimbursement
under various insurance programs for
telehealth and telemedicine services,
providers must understand the rules and
regulations governing each program.
Providers should consider the location
of the patient, whether the technology
is offered in real-time, and whether
reimbursement is multi-part (i.e.,
professional service fee and facility fee).
By understanding the relevant rules and
regulations, providers may successfully use
telehealth technologies to offer services to
New Mexicans, especially those living in
rural communities. ■
_________________________
Endnotes
1 See U.S. Department of Health and
Human Services, Health Resources and
Services Administration, Find Shortage
Area: HPSA by State and County, New
Mexico, available at http://hpsafind.hrsa.
gov/HPSASearch.aspx (last visited Sept.
15, 2014).
2 Centers for Medicare and Medicaid
Services, Original Medicare (Part A
and B) Eligibility and Enrollment,
available at http://www.cms.gov/
Medicare/Eligibility-and-Enrollment/
OrigMedicarePartABEligEnrol/ (last
visited Sept. 15, 2014).
3 Centers for Medicare and Medicaid
Services, Telehealth Services: Rural Fact
Sheet Series, available at http://www.cms.
gov/Outreach-and-Education/Medicare-
Learning-Network-MLN/MLNProducts/
downloads/telehealthsrvcsfctsht.pdf (last
visited Sept. 15, 2014).
4 However, store and forward technology
is permitted in Federal demonstration
programs in Alaska and Hawaii; See
also U.S. Department of Health and
Human Services, HRSA, What are the
reimbursement issues of telehealth?, available
at http://www.hrsa.gov/healthit/toolbox/
RuralHealthITtoolbox/Telehealth/
whatarethereimbursement.html (last
visited Sept. 15, 2014).
5 Eligibility is determined based on
percentage of FPL (Federal Poverty Level)
and other criteria. Adults are eligible at
138% FPL, Children 6-19 are eligible
at 190%, Children 0-6 are eligible at
240%. See Federal Poverty Guidelines,
New Mexico Affordable Care Eligibility
Groups, Effective April 01, 2014 thru
March 31, 2015, available at http://www.
hsd.state.nm.us/uploads/FileLinks/2646
3f122f47474487faee4922e09ce8/2014_
FPL_for_HSD_Website.pdf (last visited
Sept. 15, 2014).
Catherine Russell is an associate at
SaucedoChavez, P.C., specializing in
healthcare law, commercial litigation and
employment law. She is the YLD Liaison to
the Health Law Section. During law school
she participated in the National Health Law
Moot Court, interned with the UNM Office
of University Counsel, Health Law Section,
and served as the Student Liaison to the
Health Law Section.
HIPAA
Compliance for Telemedicine Providers
By Ryan H. Harrigan
T
echnological advances are
rapidly revolutionizing
the way the healthcare
industry provides care to its
patients. While the potential
benefits of these advances is
undeniable, the changes have
created significant uncertainty
and confusion on behalf of
medical providers as to how to
remain compliant with federal/
state regulations, specifically
those related to protecting
the privacy of patients’ health
information.
Fortunately, the treatment and
diagnostic potential of these
advances in New Mexico has
not gone unnoticed. After the
2014 legislative session, Gov.
Susana Martinez signed into
law a state budget that included
$600,000 for the Department
of Health to expand
telemedicine services in the
state and a $500,000 increase
for Project ECHO (Extension
for Community Healthcare
Outcomes), an internationally
recognized telehealth model established at
the University of New Mexico more than
a decade ago.
As telemedicine necessarily requires
the spread of health information and
treatment over the Internet, there is an
understandable increase in concern over
ensuring that patients’ sensitive health
information is protected. The Health
Insurance Portability and Accountability
Act (HIPAA), which was signed into
law in 1996 (Public Law 104-191), is
the federal regulatory scheme that serves
to protect patients’ health information.1
HIPAA requires the Secretary of the
Department of Health and Human
Services (HHS) to adopt standards for
electronic transactions, including data
elements, standard code sets, unique health
identifiers, security safeguards and privacy
standards. Along with HIPAA, the Health
Information Technology for Economic
and Clinical Health (HITECH) Act,
enacted as part of the American Recovery
and Reinvestment Act of 2009, addresses
in connection with certain
transactions. 45 CFR 160.103.
If the entity is determined
to be a covered entity, the
analysis turns to whether any
information being received,
used or disclosed meets the
definition of “protected health
information.” Protected Health
Information or PHI is defined
as information that “[i]s created
or received by a health care
provider, health plan, public
health authority, employer, life
insurer, school or university, or
health care clearinghouse;” and
“[r]elates to the past, present, or
future physical or mental health
or condition of an individual;
the provision of health care
to an individual; or the past,
present, or future payment for
the provision of health care to
an individual.” Id.
the privacy and security concerns
associated with the electronic transmission
of health information, in part, through
several provisions that strengthen the
civil and criminal enforcement of the
HIPAA rules. Failure to comply with
and/or violate the provisions of HIPAA/
HITECH can result in severe civil and/or
criminal penalties.
Who Does HIPAA Apply To?
The critical question for telemedicine
providers to determine is whether HIPAA
applies to them, and, if so, what steps must
they take to comply with HIPAA. HIPAA
only applies to covered entities that engage
in the use or disclosure of individuals’
protected health information. Thus, in order
to determine if a telemedicine provider
is subject to HIPAA, the first level of
analysis is whether they are deemed a
“covered entity” under HIPAA. Covered
entities under HIPAA are: (1) health
plans; (2) health care clearinghouses; or
(3) any health care provider who transmits
health information in electronic form
If HIPAA applies, a covered
entity is only permitted to
use and disclose protected
health information, without
an individual’s authorization,
in the following instances: (1) to the
individual; (2) for treatment, payment, and
health care operations; (3) incident to an
otherwise permitted use and disclosure;
(4) for certain public interest and benefit
activities; and (5) as a limited data set for
the purposes of research, public health or
health care operations.2 However, even if a
covered entity is allowed to use/disclose a
patient’s protected health information, the
covered entity must still make reasonable
efforts to use, disclose, and request only
the minimum amount of protected health
information needed to accomplish the
intended purpose of the use, disclosure,
or request.3 In order to ensure compliance
with HIPAA, a covered entity must
develop and implement policies and
procedures to reasonably limit uses and
disclosures to the minimum necessary.
Who Can Protected Health
Information Be Shared With?
A reality of telemedicine is that healthcare
providers will often require the services of
New Mexico Lawyer - November 2014 5
third-party entities to effectively perform
services remotely. These third parties might
be teleconferencing platforms, internet
service providers or cloud-based data
storage providers, to simply name a few.
For telemedicine to function effectively
and efficiently it will often be necessary for
a health care provider to send protected
health information either to or through
these third parties. While HIPAA allows
covered providers to disclose protected
health information to these third-party
“business associates,” certain requirements
must be met to ensure that safeguards are
in place to protect the health information
being shared. When a covered entity uses
one of these third-party platforms, certain
protections must be included in a written
business associate agreement between the
covered entity and the business associate.
45 CFR 164.502(e).
An exception to the requirement
of maintaining a business associate
agreement with a third party exists if that
third party is acting purely as a conduit of
health information and does not store the
information. This “conduit exception” is
Examples of Identifiable
Information Under HIPAA
• Name
• ZIP code
• Address
• Name of employer
• Birth date
• Telephone number
• Fax number
What is a Business Associate?
A person or organization, other
than a member of a covered entity's workforce, that:
• performs certain functions or
services that involve the use or
disclosure of PHI
• creates, receives, maintains, or
transmits PHI on behalf of the
business associate or the covered entity.
Business associate functions
or activities can include:
• claims processing
• data analysis
• utilization review
• billing
6 New Mexico Lawyer - November 2014
limited to transmission services (whether
digital or hard copy), including any
temporary storage of transmitted data
incident to such transmission. See 78
Federal Register 5571-5572. The transient
versus persistent nature of opportunity
to view data is relevant. If the third
party stores or keeps PHI on behalf
of a covered entity it will be deemed a
business associate, even if the entity does
not view the PHI. Covered entities that
practice telemedicine should err on the
side of caution when applying the conduit
exception, as the government has been
clear that this exception is not intended
to be broad: “the conduit exception … is
intended to exclude only those entities
providing mere courier services, such as
the U.S. Postal Service or United Parcel
Service and their electronic equivalents,
such as Internet service providers (ISPs)
providing mere data transmission services.”
See 78 Federal Register 5571.
Why Is HIPAA Compliance
Important?
A telemedicine provider’s compliance with
HIPAA is important in order to avoid: (1)
breaches of patients’ health information;
and (2) the significant penalties imposed
for failing to comply with HIPAA. In
the event of a breach of patients’ privacy,
HIPAA requires that covered entities and
business associates provide notification
to affected individuals.4 If a breach has
occurred, a covered entity is required
to notify affected individuals without
unreasonable delay but not later than 60
calendar days after discovery. If the breach
affects fewer than 500 individuals, the
covered entity may maintain a log of the
breaches and submit this log annually
to HHS. However, if the breach affects
500 or more individuals, then the notice
must also be provided to HHS and major
media outlets serving New Mexico.
Understandably, notifying patients (and
potentially the media) that patients’
sensitive medical records have been
compromised can be an embarrassing and
damaging situation for many healthcare
providers.
It is important for telemedicine providers
to note that the breach notification
requirement only applies to protected
health information that is “unsecured.”
If the protected health information
is rendered “unusable, unreadable,
or indecipherable” to unauthorized
individuals, it is deemed secure. In sum, in
order for protected health information to
be secure it needs to be either encrypted or
destroyed. In choosing platforms/methods
to perform telemedicine, providers must
take care to select those service providers
who can ensure that any electronic
protected health information is encrypted
in accordance with HIPAA. Similarly,
if electronic health information is to be
destroyed, the telemedicine provider must
ensure that the electronic media is cleared,
purged, or destroyed so that the protected
health information cannot be retrieved,
consistent with HIPAA guidelines.
Failure to comply with HIPAA can also
result in significant penalties for healthcare
providers. Under HIPAA, penalties can
include:
• $100 to $50,000 per violation.
(Up to $1,500,000, per year)
• $50,000 fine and up to one
year in prison for improperly
obtaining or disclosing health
information.
• $100,000 fine and up to five
years in prison for obtaining or
disclosing health information
under false pretenses.
• $250,000 fine and up to 10
years in prison for obtaining
health information with the
intent to sell, transfer or use for
commercial advantage, personal
gain or malicious harm.5
The breach notification requirements
and penalties associated with HIPAA
can have the unfortunate consequence of
dissuading risk-averse healthcare providers
from venturing into the new world of
telemedicine. However, by investing the
time to learn the nuances of HIPAA and
implementing a culture of compliance,
healthcare providers can take advantage of
the many benefits that telemedicine has to
offer for both patients and providers alike. ■
____________________
Endnotes
45 CFR Parts 160 and 164
See, e.g. 45 CFR 164.506; 45 CFR
164.512(b)
3
45 CFR 164.502(b), 164.514(d)
4
The HIPAA Breach Notification Rule
can be found at 45 CFR §§ 164.400-414.
5
42 U.S.C. §1320d-5; 42 U.S.C. §1320d-6
1
2
Ryan H Harrigan is a shareholder at
SaucedoChavez, P.C., and is the head of the
firm’s healthcare law practice. A graduate of
NYU School of Law and a native of New
Mexico, he advises a wide array of healthcare
providers on regulatory, transactional,
licensing and litigation matters. Harrigan is
the chair of the Health Law Section.
Regulation of
Mobile Medical Apps
By Erin Joyce Jackson and Ryan Harrigan
A
nother area of the healthcare
industry that is rapidly
developing and evolving is the
use of mobile medical applications
(app). The U.S. Food and Drug
Administration estimates that 500
million smartphone users will use a
mobile medical application by 2015,
and 1.7 billion worldwide users by
2018. Apps allow users to integrate
their smartphones with increasingly
complex medical technology, whereby
their smartphones can actually become
medical devices. A physician may
use a mobile medical app to conduct
a patient’s ECG, a pharmacist may
use one to verify potential drug
interactions, and diabetic patients may
use one to monitor their insulin levels.
The FDA’s new regulation of this area
of medical technology is expected to
create even more complex and reliable
mobile medical apps.
The FDA is responsible for regulating
medical devices, and the emerging role
of these mobile medical apps threaten
to create a regulatory challenge. In 2011,
the FDA released its draft regulations
for these apps, and in September 2013, it
released its final guidance. While the final
guidance only regulates the behavior of
mobile medical app manufacturers, the
ramifications could be felt by all users.
Three New Categories of Apps
In the final guidance, the FDA created
three categories of mobile medical apps:
(1) those that it will regulate as medical
devices;
(2) those over which it will exercise
enforcement discretion; and
(3) those that will be subject to no
regulation.
The level of regulation that the FDA will
exercise over an app directly correlates to
the app’s potential for risk to patients. The
comments received about the proposed
rules overwhelmingly supported this
tiered, risk-based approach.
Many mobile medical apps are
aimed at the patient-consumer,
and they perform such diverse
functions as allowing patients to
record findings in breast self-exams,
track moles and skin cancer risk
factors, or monitor their multiple
sclerosis injection schedule.
The FDA will focus its regulatory and
enforcement power on a small subset of
mobile medical apps that it considers to
be medical devices and which, if they fail
to function properly, present the greatest
risk to patients. These apps include: (a)
those that are accessories to regulated
medical devices, such as one that allows
physicians to review x-ray images on
their smartphones, and (b) those that
transform a smartphone into a regulated
medical device, such as those that turn the
provider’s smartphone into an ECG or
ultrasound machine.1 These apps may also
use attached sensors to provide feedback
for various situations, such as to determine
the quality of CPR being delivered, to
analyze eye movements and diagnose
balance disorders, or to measure the
degree of tremors produced by diseases.
These apps will be regulated like any other
medical devices.
The FDA will exercise enforcement
discretion over the second category of
apps, meaning that it will largely refrain
from enforcing the requirements of the
Federal Drug & Cosmetic Act (FDCA)
over these apps. Even if these apps fall
under the technical definition of a medical
device, the FDA has determined that they
pose a minimal risk to patient-consumers.2
Examples of these apps include those that
provide motivational guidance to patients
who are trying to quit smoking, those that
include GPS locators to alert asthmatics
of environmental conditions, or those
that use video games to motivate patients
to follow their at-home physical therapy
regimen.
New Mexico Lawyer - November 2014 7
The third category of apps does not meet
the definition of “device” and will not
be regulated by the FDA. Examples of
these unregulated apps include those that
allow providers to access electronic copies
of medical textbooks, the DSM, or the
Physician’s Desk Reference; those that are
intended for provider education, rather
than patient treatment, such as surgical
training videos or interactive anatomy
diagrams; and those that allow patients to
self-educate about diseases, clinical trials,
or prescription drugs.
The Impact on Providers
These regulations regulate the activities
of mobile medical app manufacturers,
not the apps’ consumers. However, it
is important that providers limit their
practice’s use of mobile medical apps to
those apps that have been cleared by the
FDA. If a provider is uncertain about the
status of an app, there are multiple search
engines available on the FDA’s website. A
nonexclusive list of approved apps is also
available on the FDA’s website.
Entities that rate and approve medical
apps are available, and providers can
consult these sources prior to purchasing
an app for use in their practice that rates
and approves medical apps.3 Although it
does not guarantee that its rated apps are
in compliance with FDA requirements,
the new program Happtique offers a
Health App Certification Program
(HACP). HACP is the first-ever approval
and certification process for mobile
health apps, wherein the apps are put
through technical, privacy, and content
tests.4 Whether providers are using an
app themselves or recommending it to
their patients, choosing an app from
Happtique’s registry, or a similar source,
allows the provider to feel confident that
the app has been independently tested and
certified. The registry remains small and in
its early developmental stages, but it allows
the featured apps to stand apart from
uncertified competitors. It is important to
note that Happtique’s process is distinct
from the FDA’s regulatory process, and
Happtique’s certification and ratings of an
app do not correlate to the FDA’s approval
of that app.
The Impact on Patient-Users
Many mobile medical apps are aimed at
the patient-consumer, and they perform
such diverse functions as allowing patients
to record findings in breast self-exams,
track moles and skin cancer risk factors, or
monitor their multiple sclerosis injection
8 New Mexico Lawyer - November 2014
Whether providers are using an
app themselves or recommending
it to their patients, choosing an
app from Happtique’s registry,
or a similar source, allows the
provider to feel confident that
the app has been independently
tested and certified.
schedule. The more functional apps,
however, are not available free-of-charge,
and third-party payers want additional
proof of outcomes before they cover
the cost this technology. Because thirdparty payers want evidence of improved
outcomes and reduced hospitalizations
before they reimburse for patient mobile
medical apps, the process is likely to move
slowly. Thus, the most rapid developments
in patient-focused apps will likely occur
where there is the potential for profit,
such as those that could be offered by
corporations as a component of their
employee health plans. While the rapidly
evolving area of medical apps brings great
promise to providers and patients alike, all
parties need to be cognizant of the rules
and regulations affecting this new area of
healthcare delivery. ■
________________________
Endnotes
U.S. Dep’t of Health & Human
Svcs., Food & Drug Admin., FDA issues
final guidance on mobile medical apps, FDA
News Release, (Sept. 23, 2013).
2
U.S. Dep’t of Health & Human
Svcs., Food & Drug Admin., Mobile
Medical Applications: Guidance
for Industry and Food and Drug
Administration Staff 23 (2013).
3
Rob Stott, Associations Now,
Health and Medical Apps Get Certified,
Money & Business (Dec. 9, 2013), http://
associationsnow.com/2013/12/health-andmedical-apps-get-certified/.
4
Id.
1
Erin Jackson is a graduate of the University
of New Mexico School of Law and was the
top-ranked graduate of her law school class,
where she focused her studies and scholarship
on health and gender law. She is a freelance
legal writer specializing in general civil,
complex commercial, and insurance litigation.
Telemedicine Licensing:
Within and Beyond New Mexico’s Borders
By Rosalyn D. Nguyen and Diana Heider
I
nternet and mobile
technology is becoming
increasingly common in
the United States. According
to a Gallup poll of American
adults conducted in January
2014, 62 percent have a
smartphone, 73 percent
have wireless Internet access
at home, 64 percent own
a laptop computer, and
38 percent own a tablet
computer.1 With modern
life becoming increasingly
driven by and reliant upon
technology, it makes sense
that technology could be
applied to healthcare to
produce solutions that are
cost-effective, efficient, and
convenient—telemedicine.
This article examines telemedicine licensing
as it applies to physicians in New Mexico,
the complexities of physician telemedicine
licensing in other states, and what the
Federation of State Medical Boards are
currently proposing to resolve interstate
medical licensing issues.
New Mexico Telemedicine
Licensing
To protect the public from incompetent
or impaired practitioners, laws governing
individual health care providers by requiring
them to hold medical practice licenses are
enacted through state legislative action,
where the authority to regulate is delegated
to the respective state licensing board. In
New Mexico, this authority lies with the
New Mexico Medical Board (NMMB)
which grants New Mexico licenses to
qualified physicians and certain other
qualified healthcare providers.
New Mexico is one of 10 states that
requires an out-of-state physician to
obtain a special telemedicine-specific
license. Accordingly, the NMMB grants
telemedicine licenses under the Medical
Practice Act, which defines the practice of
medicine across state lines. NMSA 1978,
Sections 61-6-1 through 61-6-35 (1978).
New Mexico requires that a telemedicine
consulting physician obtain a telemedicine
New Mexico-Licensed
Physicians Practicing
Telemedicine Beyond
New Mexico Borders
license that would allow that physician
located outside New Mexico to practice
medicine on patients located in New
Mexico. NMAC 16.10.2.8. The applicant
is required to be of good moral character
and hold a full and unrestricted license
to practice medicine in another state or
U.S. territory. New Mexico does not allow
licensure reciprocity from other states.
Differences Between
Telemedicine & In-Person
Standards?
Overall, New Mexico does not have any
unique laws regulating the practice of
telemedicine. For example, telemedicine
remote providers do not have to perform
an initial in-person exam nor must an
in-person physician-patient relationship
be established prior to a telemedicine
consultation for a patient at an originating
site in New Mexico. The physicianpatient relationship can be established
via telemedicine. Also, standards of care
for telemedicine are the same as those for
in-person care. Some states’ laws (though
not New Mexico’s) specifically require that
informed consent be obtained from the
patient prior to the telemedicine encounter.
However, the American Telemedicine
Association recommends that as a best
practice and to avoid liability, a patient
should sign an informed consent document
to indicate that the patient understands and
agrees to the telemedicine encounter.
Remote providers in New
Mexico wanting to provide
telemedicine to patients at
out-of-state originating sites
must obtain the necessary
telemedicine license (if any)
of that particular state. It
is advisable to check the
specific regulations in each
state in which the physician
intends to electronically
practice; otherwise,
practicing medicine in a
state without meeting that
state’s telemedicine licensing
requirements can incur civil
and/or criminal penalties. The best practice
is to research and be aware of other states’
licensing requirements and the parameters
for special telemedicine licensing exceptions
before the need arises.
The study, “State Telemedicine Gaps
Analysis: Physician Practice Standards &
Licensure,” released in September 2014 by
the American Telemedicine Association,
compared and graded all 50 states according
to their current telemedicine laws. New
Mexico was one of 23 states (and D.C.)
that averaged a highest composite grade
suggesting a supportive policy landscape
that accommodates telemedicine adoption
and usage based on a comparison of each
state’s laws and differing medical board
standards regarding telemedicine.2
Interstate Medical License
Compact
When the practice of telemedicine remains
within New Mexico’s borders, or when
New Mexican patients are located at the
originating site, the process of obtaining
the required New Mexico telemedicinespecific license is straightforward. However,
telemedicine licensing across state borders
is a key issue. In the absence of a concerted
effort to develop uniform or parallel medical
licensing laws, each state’s medical licensing
laws evolved independently of each other,
resulting in a patchwork of laws that are
New Mexico Lawyer - November 2014 9
often incongruent with one another and
that present a huge challenge to establishing
seamless telemedicine reciprocity.
The Federation of State Medical Boards
(FSMB), a national non-profit organization
that represents 70 state medical and
osteopathic medicine boards and serves as
the prominent U.S. authority for medical
issues related to licensure and discipline
nationally and internationally, recognized
a need to streamline an approach for
physicians to apply for medical licensure
in multiple states. As a potential solution,
the FSMB proposed model legislation
for a new state compact initiative, the
Interstate Medical License Compact
(Compact), to simplify the medical
licensing application process.3 Although
the Compact contemplates continued
reliance on state-based licensing and
authority, a main objective is to improve the
speed and efficiency of obtaining a license,
which would in turn expand telemedicine
across state lines, according to Humayun
J. Chaudhry, DO, president and CEO of
FSMB.
The general principle of
increasing and improving
access to health care
remains a universal goal.
Participation in the Compact is voluntary
for both the state and the physician. To be
eligible for an expedited license in states
that adopt the Compact, a physician must,
among other things,: (1) possess a full and
unrestricted medical license to engage in
the practice of medicine issued by a member
board; (2) have successfully completed
an approved graduate medical education
program; (3) possess specialty certification
or a time-unlimited specialty certificate
recognized by the American Board of
Medical Specialties or the American
Osteopathic Association’s Bureau of
Osteopathic Specialists; (4) have never been
convicted, received adjudication, deferred
adjudication, community supervision, or
deferred disposition for any offense by a
court of appropriate jurisdiction; (5) have
never held a license authorizing the practice
of medicine subjected to discipline by a
licensing agency in any state, federal, or
foreign jurisdiction, excluding any action
related to non-payment of fees related to
a license; (6) have never had a controlled
substance license or permit suspended
or revoked by a state or the U.S. Drug
Enforcement Administration; and (7) not
be under active investigation by a licensing
agency or law enforcement authority in any
state, federal, or foreign jurisdiction.4
To clarify, the Compact would not change
a state’s existing Medical Practice Act (or
an analogous act) or create a new “national
license,” nor is the Compact intended to
replace the original process for obtaining
licensure in any individual state. Rather, the
Compact would supplement the existing
licensing framework by authorizing the
development of an Interstate Medical
Licensure Compact Commission
(Commission), which would serve as
a central administrative clearinghouse
for physicians applying for licensure in
multiple states and thus efficiently expedite
multi-state applications. Additionally, the
Commission would serve as a joint agency
of member states and possess the authority
to promulgate rules, issue advisory opinions,
enforce compliance, and collect fees.
Member states’ medical licensing boards
would report any public action, violation
of the state’s Medical Practice Act (or the
respective analogous act), or complaints
against a licensed physician to the
Commission, subjecting that physician to
discipline by other member states’ boards by
which the physician may be licensed. Under
the Compact, if a physician’s license were
revoked, surrendered, or relinquished, then
that physician’s license would automatically
be placed in the same corresponding status
in the other states where the physician held
a medical license. Under the Compact,
member states’ boards are required to share
complaint and investigative information
with other member states’ boards.
Despite the Compact’s new authority and
requirements, a physician would still be
bound to comply with the statutes, rules,
and regulations of each state in which he or
she holds a license.
Although there are still some open
questions regarding the Compact, such as
what the physician application fees will
be, the FSMB finalized the model law this
July and seeks to introduce this legislation
to each of the 50 states at the start of each
state’s 2015 legislative session. According
to Lynn Hart, executive director of the
New Mexico Medical Board, the Board
is currently reviewing the Compact to
determine whether it would benefit the
state. In the meantime, applications for
telemedicine licenses are being processed by
the Board within an average of five to seven
working days.5
The general principle of increasing and
improving access to health care remains a
universal goal. The potential advantages of
technology are increasing quickly, and we
have much to gain if our society’s leadership
and health care policy makers choose to
be proactive and open to new policies,
rules and regulation changes to capture
efficiencies in the practice of medicine.
Above all, our leadership and policy makers
must be conscientious in preserving the
ability to reasonably regulate the practice of
medicine, while continuing to uphold the
highest standards of patient care. ■
___________________
Endnotes
Dugan, A. “Americans’ Tech Tastes
Change With Times”, January 6, 2014.
http://www.gallup.com/poll/166745/
americans-tech-tastes-change-times.aspx
2 Capistrant, G. & Thomas, L. “State
Telemedicine Gaps Analysis: Physician
Practice Standards & Licensure” by the
American Telemedicine Association,
September 2014.
http://www.americantelemed.org/
docs/default-source/policy/50-statetelemedicine-gaps-analysis--physicianpractice-standards-licensure.pdf ?sfvrsn=6
3 Federation of State Medical Boards,
Interstate Medical Licensure Compact
Information Center, http://www.fsmb.
org/Media/Default/PDF/Advocacy/
Interstate%20Medical%20Licensure%20
Compact%20(FINAL)%20September%20
2014.pdf
4 Id.
5 Telephone Interviews with Lynn Hart,
Executive Directors, New Mexico Medical
Board (September 15, 2014).
1
A Tucumcari native, Rosalyn D. Nguyen is
Assistant University Counsel for the UNM
Office of University Counsel, Health Law
Section and chair-elect of the Business Law
Section. She advises on various matters
from patient-related/healthcare issues to
transactional matters to help support the growth
of the state’s only Level I Trauma Center.
Diana Heider is a third-year law student at the
UNM School of Law and the Student Liaison
to the Health Law Section. She is currently the
Director of Provider Contracts for the UNM
Health System and plans to practice in the area
of health law.
Articles printed in this publication are solely the opinion of the authors. Publication of any article in the New Mexico Lawyer is not deemed to be an endorsement by the State Bar of New Mexico or the
Board of Bar Commissioners of the views expressed therein. The New Mexico Lawyer’s purpose is to provide an educational resource for all members of the State Bar on matters related to the justice
system, the regulation of the legal profession, and the improvement of the quality of legal services.
10 New Mexico Lawyer - November 2014
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New Mexico Lawyer - November 2014 11
12 New Mexico Lawyer - November 2014
Advance Opinions
requirement—action that substantially interferes with the use and enjoyment of the
potential condemnee’s property—policy
considerations support this requirement.
The mere planning or plotting of a public
improvement cannot alone be enough to
suffice, even if the publicity surrounding
the planning results in economic damage
to the owner of the targeted property. “If
the rule were otherwise, it would encourage [condemning entities such as] municipalities to operate secretively and to act as
quickly as possible which would inhibit
free discussion of the merits of a project.
It would also discourage a municipality
from considering alternative sites, since
that would just add to the municipality’s
potential liability.” McQuillin, supra, §
32.37 at 626 (footnotes omitted).
{34} These requirements are also consistent with the teachings of New Mexico case
law. Our Supreme Court in Electro-Jet Tool
and Manufacturing Co. v. City of Albuquerque stated that “[t]he damage must be the
result of the public entity’s deliberate taking
or damaging of the property in order to
accomplish the public purpose[,]” 1992NMSC-060, ¶ 9, 114 N.M. 676, 845 P.2d
770 (emphasis added), which is similar to
the requirement in Jackovich for a present
concrete intention to condemn. And, as
we have already observed, New Mexico
law requires the condemning authority
to take some action that substantively invades the potential condemnee’s intrinsic
use and enjoyment of its property, which
is similar to the Jackovich requirement
that the public entity must do something
that substantially interferes with the landowner’s use and enjoyment.
{35} We are not persuaded by SFPT’s
argument that Electro-Jet supplies a different standard for the public entity’s intentions. In Electro-Jet, our Supreme Court
addressed the meaning of the phrase “for
public use” in the condemnation provisions of our constitution and statutes.
1992-NMSC-060, ¶ 1 (internal quotation
marks omitted). The Court concluded that
a property owner seeking damages for inverse condemnation must prove more than
negligence on the part of the public entity.
Id. ¶ 22. This is entirely consistent with a
requirement that the property owner prove
a present concrete intention to condemn.
{36} Nor are we persuaded that a present
concrete intention to condemn is “tantamount to an actual condemnation,” as
SFPT maintains. In keeping with our case
law, “condemnation” is synonymous with
both a taking of and damage to property.
http://www.nmcompcomm.us/
Therefore, a present concrete intention
to condemn is an intention to take or to
damage the landowner’s property.
{37} We conclude that the district court’s
reliance on Jackovich was not misplaced,
and we adopt the Jackovich two-part
inquiry for determining whether planning and publicity related to a potential
condemnation establish a public entity’s
liability for inverse condemnation. The
inquiry is consistent not only with existing
New Mexico law but also with the leading
authorities on the subject. For example,
Nichols on Eminent Domain mirrors the
second Jackovich inquiry and states that
of the bundle of rights or “sticks” that
comprise the concept of property, “[o]nly
certain sticks—e.g., the right of possession—are afforded full protection by the
[laws requiring compensation for public
takings]. Under that analysis certain other
‘sticks’—e.g., the right to use and develop
property—are afforded significantly less
protection.” 2A Julius L. Sackman, Nichols
on Eminent Domain, ch. 6, § 6.01[8] at 6-19
(MB 3d ed. 2013) (footnotes omitted).
Thus, the public entity in question must
take some action that substantially interferes with the landowner’s use and enjoyment. Similarly, the McQuillin treatise
states that the “mere manifestation of
intent to take or a threat to condemn does
not constitute condemnation blight warranting recovery for reduction in value of
property.” McQuillin, supra, § 32.37 at 624.
There must also be “some direct restriction
on the use of the property.” Id. at 626.
{38} We are further unpersuaded by
SFPT’s argument that New Mexico law has
adopted a “reasonableness” standard that is
applicable in the present case. Even if SFPT
is correct that reasonableness governs the
assessment of damages in a condemnation case, there must first be damage to or
taking of property before the assessment
of damages comes into play. See § 42A1-29(A) (stating that liability for damage
to property occurs when a condemnor
“has taken or damaged or . . . may take
or damage any property for public use
without making just compensation”).
{39} Having established the state law
standards for determining whether precondemnation planning and publicity
constitute damage to or taking of property,
we now apply these standards to the circumstances in the case before us. We conclude that SFPT established only one of the
two Jackovich requirements that we have
adopted. SFPT’s evidence showed that the
City—at least the City’s administration—
intended to condemn the Property as soon
as it was able to obtain financing, an agreement with a developer, and, importantly,
approval of everything by the city council.
However, SFPT failed to establish that the
City’s actions substantially interfered with
SFPT’s use and enjoyment of the Property.
{40} Regarding the present concrete intention to condemn the Property, SFPT’s
evidence showed that the City’s administration publicly announced its desire to
condemn the Property and took significant
steps demonstrating its intention by issuing
the RFI, by obtaining city council approval
of the MOU with AMC, and by issuing
the RFP. We emphasize the importance of
the steps the administration took beyond
simply announcing a desire to explore the
arena project and vetting that proposal
publicly. As we have already mentioned,
a city’s public airing and exploration of
possible development plans are to be encouraged and cannot, by themselves, give
rise to a claim of inverse condemnation.
Here, the RFI, the MOU, and the RFP went
beyond the planning and publicity stage
and demonstrated a committed, substantive intention to condemn the Property if
means could be found to do so.
{41} But the publicity, the planning,
the RFI, the MOU, and the RFP did not
substantially interfere with SFPT’s use
and enjoyment of the Property. Indeed,
SFPT acknowledged at a hearing that
it was not claiming that the Property
had been “rendered totally useless and
that no tenants will continue [to] lease.”
While the evidence demonstrated that
some potential tenants of the building on
the Property were deterred by the possibility of imminent condemnation, this
is not the kind of interference that rises
to the level of unconstitutional damage
to or taking of property. As our Supreme
Court said in Catron, “[m]erely rendering
private property less desirable for certain
purposes . . . will not constitute the damage . . . but the property itself must suffer
some diminution in substance, or be
rendered intrinsically less valuable, by
reason of the public use.” 1982-NMSC050, ¶ 7 (internal quotation marks and
citation omitted). The City’s planning
activities, which never came to fruition,
did not prevent SFPT from possessing
the Property or from using it. The City
never physically appropriated the use of
the Property, it never contacted existing or
prospective tenants, it never denied SFPT
any use permits related to the Property,
and it never enacted any ordinances or
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
21
Advance Opinions
regulations that changed the use of the
Property. See Estate & Heirs of Sanchez,
1995-NMSC-058, ¶¶ 7, 10 (explaining
that a taking is not unconstitutional unless the government’s action “deprives the
[property] owner of all beneficial use of
[the subject] property”).
{42} All government actions will have
some incidental economic consequences,
and anyone owning property near the site of
such activity will bear the risk of those consequences. But unless the government’s actions
directly restrict the use of that property, the
property owner is not entitled to compensation for those actions. See McQuillin, supra,
§ 32.37 at 625-26 (explaining that “[p]ublicly
targeting a property for condemnation, resulting in economic damage to the owner,
is not a taking unless there is some direct
restriction on the use of the property”). Governmental entities, like the City, must be encouraged to air their planning ideas in public
so that they can be fully vetted, challenged,
improved, or rejected. We therefore conclude
that the district court properly granted the
City summary judgment on SFPT’s claims
for inverse condemnation under both federal
and state law.
2. Alleged Due Process Violation
{43} We also conclude that the district
court correctly granted summary judgment on SFPT’s claim that it was deprived
of due process, albeit on slightly different
grounds than those relied on by the district
court. While the district court determined
that “[SFPT]’s due process claim seems to
be subsumed into their taking claims,” the
federal circuit courts are divided on this
question, and the United States Supreme
Court has not provided clear direction. See
Brian W. Blaesser & Alan C. Weinstein,
Federal Land Use Law & Litigation, § 1:14
(2013) (explaining that “recent decisions
by the Supreme Court may also limit
substantive due process claims in land use
cases” and that the circuit courts are split
on the issue). But, in any event, it seems
clear that federal law will not recognize a
substantive due process claim in the land
use context unless there has been a government regulation impacting the property
owner’s use. See Blaesser & Weinstein,
supra, Ch. 1 (stating that “[f]ederal substantive due process in land use regulation
refers to the right of a property owner not
to be subject to arbitrary or capricious
regulatory action by a government legislative or administrative body”). Here, the
city enacted no ordinance or regulation
impacting SFPT’s use of the Property, and
its activities planning and publicizing the
22
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idea of the arena do not rise to the level
of a regulatory action. As a result, SFPT’s
claim of a due process violation fails.
3.The Exchange Agreement Did Not
Constitute a Taking
{44} SFPT appears to argue in the alternative that the City’s alleged breach of the
Exchange Agreement resulted in injury to
the Property and therefore provided the
basis for SFPT’s inverse condemnation
claim. We agree with the district court’s assessment that “[t]he facts of the Exchange
Agreement property are not sufficiently
tied to the Property claims to defeat [summary judgment].”
{45} The property involved in the Exchange Agreement—the City tract and the
SFPT tract—were adjacent to the Property
itself. The agreement provided that SFPT
would convey a permanent roadway easement to the SFPT tract, the City and SFPT
would share the cost of improvements to
the City tract, and then the City would
exchange title to its tract for title to SFPT’s
tract. While SFPT conveyed the easement
to the City, the ensuing exchange had not
taken place as of the time of the summary
judgment motion.
{46} SFPT argues that the failed culmination of the Exchange Agreement
damaged the Property by eliminating its
use of two access points on the City tract
and by taking possession of the SFPT
tract by way of the easement. Yet SFPT
fails to demonstrate how the alleged loss
of two access points and the SFPT tract
negatively impacted the Property. It does
not show that the loss of either prevented
its beneficial use of the Property.
{47} In fact, SFPT’s claim of damages was
related to the loss of its ability to lease the
Property due to the publicity and planning
surrounding the potential condemnation
of the Property, not due to any negative
impact related to the tracts at issue in
the Exchange Agreement. SFPT’s complaint and amended complaint did not
even mention the Exchange Agreement
in connection with its claims of inverse
condemnation and deprivation of due
process. SFPT’s claims in connection with
the Exchange Agreement were asserted in
a separate count for breach of contract, and
the parties ultimately settled these claims.
{48} We are not persuaded by SFPT’s
reliance on our Supreme Court’s decision in Komis, which SFPT claims stands
for the proposition that a partial taking of property can result in damages
for a “perceived loss” to the remaining
property. SFPT reads too much into the
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
Komis opinion. Komis involved property
partially condemned for construction of
a highway used in transporting nuclear
waste to the Waste Isolation Pilot Project
near Carlsbad, New Mexico. 1992-NMSC051, ¶¶ 2, 4. The jury awarded the property
owners damages in compensation for the
property taken and for the perceived loss
to the remaining property “due to public
perception of the effect of transporting
radioactive waste material.” Id. ¶¶ 4-5.
{49} We have no quarrel with SFPT’s contention that damages may be recoverable
for perceived loss to property remaining
after a partial condemnation. But here
there has been no condemnation, and
Komis does not change that fact. Komis addressed the measure of damages, not what
constitutes a taking. And, even if the City’s
alleged non-compliance with the Exchange
Agreement could be deemed a taking,
SFPT failed to tie this non-compliance
to any loss of use related to the Property.
The alleged loss of two access points is
meaningless unless it can be established
that the loss negatively impacted SFPT’s
use of the Property.
4. Alleged Disputed Issues of Fact
{50} SFPT argues that the evidence created disputed issues of fact regarding the
City’s intent to condemn and the reasonableness of the City’s pre-condemnation
conduct. We have already determined
that SFPT established that the City had
a present concrete intention to condemn
the Property, and we have rejected SFPT’s
argument that reasonableness is the standard by which pre-condemnation conduct
is assessed. We therefore need not address
this contention further.
5.Preliminary Issues: Fixing the Date
of the Alleged Taking and
Restricting the Scope of Mayor
Chávez’s Deposition
{51} SFPT raises two final arguments,
maintaining that the district court erroneously required SFPT to commit to a date
of the alleged taking and that the court
improperly restricted the scope of SFPT’s
inquiry at the deposition of Mayor Chávez.
We perceive no error in either ruling.
{52} With regard to the date of the alleged
taking, SFPT acknowledges that Section
42A-1-29 contemplates a specific date in
order to allow calculation of compensation that is due when a taking occurs.
But SFPT contends that the taking in this
case occurred over a period of time, and,
therefore, the date of the taking was a factual issue for the jury to determine. This
argument is unavailing. Because we have
Advance Opinions
determined that summary judgment was
appropriate, there is no need to calculate
compensation, and the date of the alleged
taking is therefore irrelevant.
{53} As for the restriction on the scope of
Mayor Chávez’s deposition, the district court
limited SFPT’s inquiry to dates occurring
prior to January 7, 2004, the date of one of
the mayor’s press conference. We review
orders regarding discovery matters for abuse
of discretion. See Estate of Romero ex rel.
Romero v. City of Santa Fe, 2006-NMSC-028,
¶ 6, 139 N.M. 671, 137 P.3d 611.
{54} After SFPT gave notice that it intended to take Mayor Chávez’s deposition,
the City filed a notice of non-appearance
and motion for protective order. In its
pleadings related to this motion, the City
argued that SFPT already had all of the
information it needed about the City’s
intentions regarding the Property via the
publicity and other documents SFPT had
presented as exhibits to other pleadings.
SFPT responded that it was important to
depose the mayor to discover the basis for
his public statements about the Property,
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what instructions he gave to staff about the
proposed condemnation, and what communications he had with the city council.
{55} At the hearing on the motion, the
City appeared to argue that the mayor did
not do anything after the date established
for the taking, January 1, 2004, and, as a
result, inquiry into that time period would
be irrelevant. SFPT responded that “the
announcements and activities that took
place in January of 2004 and subsequently,
went over the top” and that SFPT needed
to “go into the background of the—what
justification, if any, there was for the activities that started occurring in January
of 2004.”
{56} Ultimately, the district court ruled
that the dispositive date was January 1,
2004, the date previously set for the taking,
and that “things done after that are not
relevant.” At SFPT’s request, the court then
amended the cutoff date to January 7, 2004,
the date when the public announcement
of the proposed condemnation was made.
{57} We fail to see how inquiry into
Mayor Chávez’s post-January 7, 2004 ra-
tionale for public statements, instructions
to staff, or communications with the city
council would have made any difference to
SFPT’s claims. There was no dispute about
the actions the City actually took after
January 7, 2004, and we have determined
that none of those actions—either before
or after January 7, 2004—constituted damage to or taking of the Property. Without
an action that substantially interfered with
SFPT’s beneficial use of the Property, it is
simply irrelevant to consider what motives
lay beneath the surface. The district court
acted within its discretion in limiting
SFPT’s questioning to events occurring
prior to January 7, 2004.
CONCLUSION
{58} For the foregoing reasons, we affirm
the district court’s judgment in favor of the
City.
{59} IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
MICHAEL E. VIGIL, Judge
J. MILES HANISEE, Judge
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http://www.nmcompcomm.us/
From the New Mexico Court of Appeals
Opinion Number: 2014-NMCA-094
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BRADLEY MOSLEY,
Defendant-Appellant
Docket No. 32,653 (filed July 1, 2014)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
JACQUELINE D. FLORES, District Judge
GARY K. KING
Attorney General
Santa Fe, New Mexico
M. VICTORIA WILSON
Assistant Attorney General
Albuquerque, New Mexico
for Appellee
Opinion
Jonathan B. Sutin, Judge
{1}Defendant Bradley Mosley pleaded
no contest to trafficking by possession
with intent to distribute cocaine. The
incriminating evidence was discovered
in Defendant’s apartment by police who
had gained entry by means of a “knockand-talk.” Defendant’s trial counsel moved
to suppress the evidence on the grounds
that police entered Defendant’s apartment
without consent or a warrant and that
they lacked probable cause to conduct a
knock-and-talk. The district court denied
the motion, and in his plea agreement,
Defendant reserved the right to appeal the
suppression ruling.
{2} Different from what he argued in the
district court, Defendant argues on appeal
that the district court should have suppressed the evidence on the ground that
the police exceeded the scope of his consent. As an alternative to his suppression
argument, Defendant raises an ineffective
assistance of counsel claim related to his
JORGE A. ALVARADO
Chief Public Defender
J.K. THEODOSIA JOHNSON
Assistant Appellate Defender
Santa Fe, New Mexico
for Appellant
counsel’s failure to move for suppression
on the ground that the police exceeded
the scope of his consent to the entry by
traversing the hallway and the bedroom.
We conclude that Defendant’s argument
regarding the scope of consent was not
preserved. We further conclude that Defendant has made a prima facie showing of
ineffective assistance of counsel. Accordingly, we remand this matter to the district
court for a hearing on Defendant’s claim
of ineffective assistance of counsel and
any further proceedings consistent with
the district court’s determination on that
claim.
BACKGROUND
{3}The following factual background is
based on testimony presented at the hearing on Defendant’s motion to suppress.
Sergeant Farrah Simmons of the Albuquerque Police Department, a training officer, and her trainee, Officer Joslyn Archuleta,1 responded to a reported disturbance
at Defendant’s apartment. Because Officer
Archuleta was relatively inexperienced,
Sergeant Simmons requested a third officer act as her backup and was joined by
Officer Brian Price. The disturbance had
been reported by Defendant’s neighbor,
who wished to remain anonymous, but did
speak with Sergeant Simmons about the
circumstances that led to the report. According to Sergeant Simmons, the neighbor said that Defendant’s apartment had
“a lot of foot traffic . . . all night long” and
that people had mistaken her apartment
for Defendant’s and knocked on her door
asking to buy narcotics. The neighbor also
reportedly told Sergeant Simmons that she
believed that she had observed prostitution
and drug use at Defendant’s apartment,
among other things.
{4}Sergeant Simmons determined that
she did not have sufficient information
to obtain a warrant to search Defendant’s
apartment, so she conducted a knockand-talk. A knock-and-talk, according to
Sergeant Simmons’s description, involves
knocking on the door to ask to speak
with the person who answers “about any
concerns that you might have.” One of
the officers knocked on Defendant’s door,
the door was opened within seconds, and
Sergeant Simmons “told [Defendant]
that [she] had some concerns that [she]
would like to speak with him about and
asked him if [she and Officers Archuleta
and Price] could come in.” According to
Sergeant Simmons, Defendant opened the
door and allowed her and the other officers
to go into the apartment and speak with
him.2 Once the officers were inside the
apartment, Sergeant Simmons began her
conversation with Defendant.
{5} Sergeant Simmons observed a gentleman sitting on the couch and asked if anyone else was inside the apartment. At the
suppression hearing, Sergeant Simmons
explained that she asked this question
“for the purpose of officer safety”3 and to
ensure that, while she was conversing with
Defendant, “nobody was going to jump
out and surprise us or injure us or harm
us in anyway.” Almost immediately after
Defendant said that no one else was in the
apartment, Sergeant Simmons testified,
“the bathroom door [flew] open and . . . a
very big guy” came out. Sergeant Simmons
asked again whether anyone else was in the
apartment, to which the person who had
1 Officer Joslyn Archuleta was married sometime between the incident and the time of her testimony at the suppression hearing.
This Opinion will refer to her as Officer Archuleta.
2 At this point in Sergeant Simmons’s testimony, apparently because the motion to suppress focused on the consent of the police
entry into the apartment, the prosecutor asked Sergeant Simmons to focus on “the actual knocking on the door, the opening of the
door, and [Defendant] coming to the door.”
3 The question or significance of officer safety was not raised in the district court, nor was it raised on appeal. Accordingly, we
do not consider it in this Opinion.
24
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Advance Opinions
just left the bathroom said, “ ‘My girlfriend
is here. . . . She’s in the back bedroom, but
she’s asleep.’ ”
{6} Upon learning of the girlfriend’s presence in the bedroom, Sergeant Simmons
stated that she “would go wake” the sleeping woman, noting that she “didn’t want to
send Officer Price [to do so] because he’s a
male[.]” As Sergeant Simmons continued
her narrative in this vein, defense counsel
objected, stating “None of it is relevant
. . . . We are talking about a knock-andtalk with a contact at the front door.
We’re beyond anything at this point that is
relevant.” The district court permitted the
testimony, and Sergeant Simmons testified
that she “walked back to clear the rest of
the apartment, make sure there [were] no
other people, and [to] contact the female
that was asleep on the bed.” Sergeant Simmons testified that she woke the sleeping
woman, asked her to get dressed, helped
her find something to wear, then walked
into the living room where the other occupants of the apartment, were waiting.
{7}As she walked down the hallway
toward the bedroom, Sergeant Simmons
passed the “galley-style kitchen” in which
she observed “a razorblade that had a white
crusty substance on it” and “a blue plastic
scale . . . that also had a white powdery
residue on it.” Based on her training and
experience, Sergeant Simmons believed
the substance to be cocaine, and a test of
the substance confirmed that it was.
{8} After conducting a warrants search on
each of the occupants of the apartment and
confirming that none of the non-residents
“want[ed] to claim” the cocaine, Sergeant
Simmons let them leave, and then arrested
Defendant for possession of cocaine.
Defendant asked for his jacket, and as
Sergeant Simmons checked the jacket for
“weapons or anything[,]” she found a “sack
of rock cocaine.” A grand jury indicted
Defendant on charges of trafficking by possession with intent to distribute cocaine
and possession of drug paraphernalia.
{9} Defendant did not testify at the hearing on his motion to suppress. His sole
witness at the hearing, Jeffrey Manning,
was in Defendant’s apartment on the day in
question. Mr. Manning testified that when
the officers knocked on the door and Sergeant Simmons asked if she could go into
the apartment, Defendant said, “No[,]”
followed by the officer’s question, why, to
which Defendant responded, “This is [my]
space. I don’t want you to come in unless
you have a search warrant[.]” He testified
further that the officers “just came in” after
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Defendant had told them no. According
to Mr. Manning, the officers did not ask
to discuss the neighbor’s complaint, but
rather, Sergeant Simmons asked to speak
with Defendant about a cab driver who
“had been shot or killed” because someone
had called the cab driver from Defendant’s
address.
{10} In closing argument, defense counsel argued that the officers lacked probable
cause to perform the knock-and-talk and
that they entered Defendant’s apartment
despite Defendant having said “No” to
their requested entry. It is clear from the
transcript of the hearing that the district
court and the prosecutor understood
defense counsel’s argument to be limited
to the issues of probable cause to conduct
a knock-and-talk and whether Defendant
consented to the officers’ initial entry into
his apartment. In its oral ruling from the
bench, the district court denied the motion to suppress, providing the following
rationale.
I am not comfortable with the
knock-and-talk. I am concerned
about it. However, at least based
on the testimony of the [s]ergeant, and I did find her to be
more credible than the [d]efense
witness, she was allowed in and
she saw the paraphernalia, et
cetera, in plain view. From that
perspective, I believe the arrest
was lawful and the evidence will
not be suppressed.
{11} Different from what he argued in
the district court, Defendant argues on
appeal that his consent to the knock-andtalk permitted the police to enter his living
room but not other areas of the apartment,
including the hallway from where Sergeant
Simmons observed the incriminating
evidence. Defendant argues that the district court’s suppression ruling should be
reversed on this basis. Acknowledging,
however, the possibility that the scopeof-consent argument was not preserved
for our review, Defendant argues in the
alternative that his counsel’s failure to
move for suppression on the basis that
Sergeant Simmons exceeded the scope of
consent constituted ineffective assistance
of counsel.
{12} We hold that Defendant failed to
preserve his argument regarding the scope
of his consent to search the apartment. We
also hold that the record in this case contains sufficient facts to establish a prima
facie case that Defendant’s counsel was
ineffective for failing to move to suppress
the evidence on that basis. Accordingly,
we remand this matter to the district court
for a hearing on Defendant’s ineffective assistance of counsel claim and any further
proceedings consistent with the district
court’s determination on that issue.
DISCUSSION
I.Preservation
{13} “In order to preserve an issue for
appeal, it must appear that a ruling or
decision by the district court was fairly
invoked” in a manner that specifically apprised the district court of the issue and
resulted in an intelligent ruling thereon.
State v. Lopez, 2008-NMCA-002, ¶ 8, 143
N.M. 274, 175 P.3d 942 (internal quotation
marks and citation omitted). Among other
things, the preservation rule ensures that
the opposing party has “a fair opportunity
to show why the court should rule in its
favor” and it “creates a record from which
this Court may make informed decisions.”
Id. (internal quotation marks and citation
omitted). This Court “will not reverse the
trial court on grounds [that] the trial court
was neither asked to consider nor had the
opportunity to review.” State v. Aguilar,
1982-NMCA-116, ¶ 9, 98 N.M. 510, 650
P.2d 32.
{14} The State and Defendant agree that
the issue of the scope of Defendant’s consent was not raised in the district court.
Furthermore, the State contends that it
“did not have an opportunity to develop
a record specific to [Defendant’s] claim”
that the officers exceeded the scope of
Defendant’s consent. Nevertheless, the
State argues that the record is sufficient for
this Court to review Defendant’s claim on
the basis that “the State is not prejudiced”
by the fact that it was not given an opportunity to refute this claim in the district
court.
{15} Specifically, the State argues that
because the record includes testimony
“regarding the officers’ request to enter
the apartment, and the reason for their
request, as well as Defendant’s response[,]”
this Court may determine the scope of
Defendant’s consent and whether Sergeant
Simmons acted within the scope of that
consent. At the same time, however, the
State attempts to rely, to its own advantage,
on the absence of factual development in
the record in regard to the scope of Defendant’s consent. To that end, the State argues
that testimony at the suppression hearing
did not “clarify the scope of Defendant’s
consent” and that Defendant did not object
when Sergeant Simmons “announced her
intention of going into the bedroom to
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25
Advance Opinions
retrieve the sleeping woman.” Based on
the absence of testimony in regard to the
scope of Defendant’s consent or whether
Defendant objected to Sergeant Simmons’s
expanded entry into the apartment, the
State argues that Defendant “acquiesce[d]
in the officer’s actions,” thus establishing
that those actions “were within the scope
of Defendant’s consent.” We are not persuaded by the State’s self-serving attempt
to benefit from Defendant’s failure to
preserve the scope-of-consent argument
by encouraging this Court to consider the
matter while simultaneously assuming and
relying upon facts that are not in the record.
{16} Under some circumstances, a narrow suppression argument in the district
court will not preclude review of a more
broad argument on appeal. See, e.g., State
v. Figueroa, 2010-NMCA-048, ¶¶ 8-13,
148 N.M. 811, 242 P.3d 378 (considering
the defendant’s suppression argument notwithstanding the fact that the suppression
argument made in the district court was
more narrow than that made on appeal
because the defendant’s arguments were
such that the district court and the prosecution had a fair opportunity to address
the issue). Under the circumstances here,
however, not only did the district court not
have an opportunity to rule upon the issue
whether Sergeant Simmons exceeded the
scope of Defendant’s consent, the absence
of evidence from the record in regard to
what, if anything, Defendant said or did
in response to Sergeant Simmons’s announcement that she would go wake the
sleeping female in the bedroom precludes
effective review of the State’s argument. See
Lopez, 2008-NMCA-002, ¶ 8 (explaining
that preservation requires a showing that a
ruling or decision by the district court was
fairly invoked and that preservation serves
to create “a record from which this Court
may make informed decisions” (internal
quotation marks and citation omitted)).
{17} In sum, we conclude that the issue of
the scope of Defendant’s consent was not
preserved for our review, and we do not
consider it on appeal. Because Defendant
does not argue that the district court erred
in determining that he consented to the
officers’ initial entry, we do not consider
the propriety of the district court’s denial
of his motion to suppress in that regard.
II. Ineffective Assistance of Counsel
{18} The Sixth Amendment to the United
States Constitution guarantees the right
to the effective assistance of counsel. Patterson v. LeMaster, 2001-NMSC-013, ¶ 16,
130 N.M. 179, 21 P.3d 1032. Defendant
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argues that his trial counsel’s failure to
move to suppress the evidence on the
ground that Sergeant Simmons exceeded
the scope of his consent by entering the
hallway and the bedroom rendered his
counsel’s assistance ineffective. He argues
that his plea should be vacated and the
matter remanded for an evidentiary hearing on his ineffective assistance of counsel
claim. We review Defendant’s ineffective
assistance of counsel claim de novo. State
v. Dylan J., 2009-NMCA-027, ¶ 33, 145
N.M. 719, 204 P.3d 44.
{19} Remand for an evidentiary hearing
on a claim of ineffective assistance of counsel “is appropriate only when the record
on appeal establishes a prima facie case of
ineffective assistance of counsel.” State v.
Herrera, 2001-NMCA-073, ¶ 35, 131 N.M.
22, 33 P.3d 22. A prima facie case is made
by showing (1) “that defense counsel’s
performance fell below the standard of
a reasonably competent attorney[,]” and
(2) that “due to the deficient performance,
the defense was prejudiced.” Patterson,
2001-NMSC-013, ¶ 17 (internal quotation marks and citation omitted). The
two prongs of this test are known as “the
reasonableness prong and the prejudice
prong.” Id.
A. The Reasonableness Prong
{20} Where, as here, the ineffective
assistance of counsel claim is premised
on counsel’s failure to move to suppress
evidence, Defendant “must establish that
the facts support the motion to suppress
and that a reasonably competent attorney
could not have decided that such a motion
was unwarranted.” Id. ¶ 19.
{21} Defendant argues that in light of
Sergeant Simmons’s testimony that she
asked if she and the other officers could
go into Defendant’s apartment to discuss
the neighbor’s complaints, social norms
dictated that she ask permission before
proceeding to the bedroom. In other
words, Defendant argues that his consent
to the officers’ entry into his apartment
permitted the officers to enter the living
room, which was adjacent to the front
door, but “[i]t was not an invitation for
the officers to walk down the hall and go
into his bedroom.” Defendant argues that
when Sergeant Simmons, in fact, walked
down the hall, she exceeded the scope of
Defendant’s consent; therefore, his counsel
should have moved to suppress the evidence on the basis that Sergeant Simmons
was not lawfully permitted to be in the
hallway from where she saw the evidence
in plain view.
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{22} Defendant’s argument implicates
two exceptions to the warrant requirement, plain view and consent. See State
v. Bond, 2011-NMCA-036, ¶ 11, 150
N.M. 451, 261 P.3d 599 (recognizing that
warrantless searches and seizures are unconstitutional except in cases involving
recognized exceptions including plain
view and consent. “Under the plain view
exception to the warrant requirement,
items may be seized without a warrant if
the police officer was lawfully positioned
when the evidence was observed, and the
incriminating nature of the evidence was
immediately apparent, such that the officer
had probable cause to believe that the article seized was evidence of a crime.” State
v. Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M.
781, 93 P.3d 1286. In this case, the incriminating nature of the evidence and whether
Sergeant Simmons had probable cause to
believe that it was evidence of a crime are
not at issue. The relevant question under
the plain view doctrine is whether Sergeant
Simmons was lawfully in the hallway when
she saw the drug-related evidence.
{23} Defendant does not appeal the
district court’s conclusion that Sergeant
Simmons “was allowed in” to Defendant’s
apartment. We interpret the court’s ruling
and Defendant’s failure to challenge it on
appeal as conclusively establishing that
Defendant voluntarily consented to the
officers’ entry into his apartment. The relevant issue is whether Sergeant Simmons
could have reasonably interpreted that
Defendant’s consent, given in response to
the officers’ request to “come in” to speak
about “some concerns[,]” encompassed
consent to walking through the apartment’s hallway and into the bedroom.
{24} “The scope of . . . consent is constrained by the bounds of reasonableness[.]” State v. Garcia, 1999-NMCA-097,
¶ 13, 127 N.M. 695, 986 P.2d 491 (internal
quotation marks and citation omitted).
Thus, we consider “what a police officer
could reasonably interpret the consent to
encompass.” Id. (internal quotation marks
and citation omitted). Conversely, we consider “what the typical reasonable person
would have understood to be the scope of
his or her consent under the circumstances.” United States v. Pena, 143 F.3d 1363,
1367-68 (10th Cir. 1998) Reasonableness
is measured objectively. See State v. Ryan,
2006-NMCA-044, ¶ 30, 139 N.M. 354,
132 P.3d 1040 (noting that “the scope of a
search is limited to the consent given, as
measured by an objective reasonableness
standard”).
Advance Opinions
{25} In determining what is or is not reasonable, courts may rely on social norms
to guide the inquiry. See United States v.
Mosley, 454 F.3d 249, 269 (3rd Cir. 2006)
(“The exclusionary rule expresses, inherently and always, a standard of reasonableness that evolves along with . . . social
norms.”); see also Florida v. Jardines, __
U.S.___ , 133 S. Ct. 1409, 1415-16 (2013)
(relying on social norms to illustrate that
it is reasonable for police to approach a
private citizen’s home and knock on the
door just as “any private citizen might
do[,]” but those norms do not permit police to use a trained police dog to explore
the area around the home, an activity that
if done by a private citizen might inspire
the resident to call the police (internal
quotation marks and citation omitted)). In
this case, Defendant relies on the notion
of social norms to argue that his consent
to the officers’ entry could only reasonably
be viewed as an invitation to enter the living room. Specifically, Defendant argues
that “an invitation into the living room
for a quick chat about a noise complaint”
does not constitute “permission to wander
throughout the house.” We agree.
{26} In light of the fact that Sergeant
Simmons requested admittance into
Defendant’s apartment for the purpose
of speaking with Defendant about some
concerns, her subsequent announcement
that she would go wake the sleeping female
occupant of Defendant’s apartment, and
her procession thereafter down the hallway
and to the bedroom cannot be viewed as
objectively reasonable. To illustrate this
point by way of analogy, if a solicitor
who gained permission to “come in” to a
person’s home to “speak with” the resident
were to announce that he would round
up the sleeping occupants of the home, it
would be reasonable to view the solicitor’s
actions as, at the least, an unacceptable intrusion on privacy. Cf. id. at 1415 (relying
on the notion of what one would consider
socially acceptable behavior by “solicitors,
hawkers[,] and peddlers of all kinds” to
consider the permissibility of like behavior
by police (internal quotation marks and
citation omitted)). Thus, assuming that
the extent of Defendant’s consent was
limited to permitting the officers’ entry
into his apartment for the purpose of
speaking with Sergeant Simmons about
her concerns, we conclude that the officer’s
traversal through the hallway and into
the bedroom of Defendant’s apartment
exceeded the “bounds of reasonableness.”
See Garcia, 1999-NMCA-097, ¶ 13 (“The
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scope of the consent is constrained by the
bounds of reasonableness: what a police
officer could reasonably interpret the
consent to encompass.” (internal quotation
marks and citation omitted)).
{27} While viewing Sergeant Simmons’s
actions in this case through the lens of
social norms helps to illustrate the unreasonableness of her interpretation of
the scope of Defendant’s consent to her
and the other officers’ entry, Defendant’s
argument is further supported by authority. The knock-and-talk investigatory tool
is permissible under the New Mexico and
United States Constitutions. See State v.
Flores, 2008-NMCA-074, ¶¶ 8, 14, 16,
144 N.M. 217, 185 P.3d 1067 (recognizing the constitutional permissibility of
the knock-and-talk investigatory tool
under the United States and New Mexico
Constitutions). Yet, answering an officer’s
knock and consenting to police entry, does
not give police free reign to walk through
or search a private residence. See United
States v. Curran, 498 F.2d 30, 33 (9th Cir.
1974) (holding that the officers’ expressed
purpose of questioning the occupants of a
residence “could not extend to [an officer’s]
movement past [the occupants] into other
rooms”); see 1 Wayne R. LaFave, Search
and Seizure § 2.3(b) (5th ed. 2013) (stating
that, in the context of a knock-and-talk
investigation, “the mere fact that the door
of the house is opened in response to the
officer’s knock . . . does not mean that the
officer is entitled to walk past the person
so responding into the interior of the residence”).
{28} In sum, the record before us supports
Defendant’s contention that he consented
to the officers’ entry into his apartment
for the purpose of acquiescing to Sergeant
Simmons’s request to speak with him
about her concerns. Assuming that his
consent was limited to permitting the officers’ entry, Sergeant Simmons’s decision
to walk down the hallway, from where she
saw the drug-related evidence, and into
the bedroom exceeded the objectively
reasonable scope of Defendant’s consent.
In light of the foregoing discussion, in
addition to the well-established principle
that “[t]he privacy of a home is afforded the
highest level of protection by our state and
federal constitutions[,]” we conclude that
a reasonably competent attorney would
have moved to suppress on the basis that
Sergeant Simmons exceeded the scope of
Defendant’s consent. State v. Haidle, 2012NMSC-033, ¶ 13, 285 P.3d 668 (internal
quotation marks and citation omitted).
{29} We are not persuaded by the State’s
suggestion that Defendant’s counsel made
the tactical decision to forego a scope-ofconsent argument owing to the possibility
that “an argument regarding the scope of
Defendant’s consent would be unavailing.”
We are not made aware of any rational
tactic or strategy that would have caused
Defendant’s counsel to forego a motion to
suppress on a scope-of-consent ground. To
the extent the State argues that Defendant
consented to a more expansive entry of his
apartment, the record on appeal does not
support this argument, and this Court will
not speculate regarding any expansion of
Defendant’s consent. See State v. Vargas,
2007-NMCA-006, ¶ 31, 140 N.M. 864,
149 P.3d 961 (noting this Court’s refusal
to speculate regarding other balancing of
interests arising during an unannounced
forced entry at gunpoint compared with
an announced entry into a residence.)
B. The Prejudice Prong
{30} Where a meritorious motion to
suppress key evidence could weaken the
prosecution’s case against the defendant,
counsel’s failure to make such a motion
may prejudicially affect the defendant.
Patterson, 2001-NMSC-013, ¶¶ 32-33. In
cases where the defendant has accepted a
plea instead of going to trial, we evaluate
the prejudicial effect of his counsel’s ineffective assistance by considering whether
there is a reasonable probability that, had
his counsel moved to suppress the at-issue
evidence and been successful, the defendant would have gone to trial instead of
entering a plea. Id. ¶ 33. In making this
determination, we consider the strength
of the prosecution’s evidence against the
defendant aside from the evidence that
would be subject to suppression. Id. ¶¶ 3132.
{31} In this case, the extent of the State’s
incriminating evidence against Defendant
consisted of the drugs and paraphernalia
that were observed by Sergeant Simmons
from the hallway of Defendant’s apartment and the crack cocaine that the officer
found in the pocket of Defendant’s jacket
just after being arrested for possession of
those prior items. Had Defendant’s counsel
moved to suppress the evidence that was
observed in plain view from the hallway
on the ground that Sergeant Simmons
was not lawfully positioned in the hallway
when she observed the evidence, the motion could have resulted in the exclusion
of the plainly viewed evidence. See Ochoa,
2004-NMSC-023, ¶ 9 (stating that the
plain view requirement entails viewing
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27
Advance Opinions
the incriminating evidence from a lawful
position). Relatedly, the crack cocaine
that was located by Sergeant Simmons
in Defendant’s jacket may arguably have
been excluded as “fruit of the poisonous
tree” because without the plainly viewed
evidence the officer lacked probable cause
to arrest Defendant. See State v. Montoya,
2008-NMSC-043, ¶ 12, 144 N.M. 458, 188
P.3d 1209 (recognizing that the “[f]ruit of
the poisonous tree doctrine generally requires suppression of . . . evidence obtained
after an arrest made without probable
cause” (omission in original) (internal
quotation marks and citation omitted)).
{32} In sum, had Defendant’s counsel
moved for suppression and had that motion been successful, the full extent of
28
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the State’s incriminating evidence against
Defendant could have been excluded. It
hardly bears stating that there is a “reasonable probability” that had Defendant’s
counsel succeeded in suppressing the
evidence against him, he would not have
accepted a plea. Under the circumstances
of this case, we conclude that Defendant
has made a prima facie showing of ineffective assistance of counsel.
CONCLUSION
{33} We conclude that Defendant has
made a prima facie case of ineffective assistance of counsel based on his counsel’s
failure to move to suppress the incriminating evidence against him. Accordingly, we
remand this matter to the district court for
a hearing on Defendant’s ineffective assis-
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
tance claim and any further proceedings
consistent with the court’s determination
on that issue. See Garcia v. State, 2010NMSC-023, ¶¶ 28-29, 148 N.M. 414, 237
P.3d 716 (stating that where a defendant
has made a prima facie showing of ineffective assistance of counsel on appeal the
appellate court may remand “to allow for
further development of the issue before
the trial court”).
{34} IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
TIMOTHY L. GARCIA, Judge
J. MILES HANISEE, Judge
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Court of Appeals
Opinion Number: 2014-NMCA-095
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RONALD SANCHEZ,
Defendant-Appellant
Docket No. 33,008 (filed July 3, 2014)
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
MICHAEL E. VIGIL, District Judge
GARY K. KING
Attorney General
Santa Fe, New Mexico
SRI MULLIS
Assistant Attorney General
Albuquerque, New Mexico
for Appellee
Opinion
James J. Wechsler, Judge
{1}Defendant Ronald Sanchez was arrested by a Tesuque Pueblo police officer
on property of the Tesuque Pueblo and
charged in Santa Fe County Magistrate
Court with aggravated driving while
under the influence of intoxicating liquor
or drugs (DWI), first offense, contrary to
NMSA 1978, Section 66-8-102 (2010).
The officer was cross-commissioned as
a Santa Fe County special deputy sheriff.
His salary was paid by the Tesuque Pueblo
Police Department, and it included incremental pay financed from a grant to assist
the department in targeting the motoring
public. On appeal to the district court,
Defendant was again convicted. He appeals
his conviction to this Court, contending
that the district court (1) erred in denying
his motion to suppress by holding that the
tribal officer who conducted the arrest
was properly cross-commissioned and
had authority to arrest Defendant under
the Motor Vehicle Code; and (2) erred
in denying Defendant’s defense, pursuant to NMSA 1978, Section 66-8-137(B)
(1978), and holding that the tribal officer
did not have financial incentive motivating his arrest of Defendant. We hold that
(1) the tribal officer was properly crosscommissioned and could properly arrest
Defendant while wearing the uniform of
and receiving his salary from the Tesuque
BEN A. ORTEGA
Albuquerque, New Mexico
for Appellant
Pueblo Police Department, and (2) the
tribal officer’s receipt of pay from a grant
and his obligation under the grant to make
monthly statistical reports did not give rise
to a defense under Section 66-8-137(B).
We affirm Defendant’s conviction.
BACKGROUND
{2}There does not appear to be any
dispute as to the facts. Defendant is presumably a non-Indian, charged with his
first offense of DWI. Defendant was in
the parking lot of Camel Rock Casino,
within the territorial boundaries of Tesuque Pueblo in Santa Fe County, New
Mexico, when either his “vehicle came into
contact with another vehicle . . . while in
the process of parking[,]” or he “crashed
his car into a parked car.” In either event,
Officer Joe Vigil of the Tesuque Pueblo
Police Department arrived at the scene,
determined that alcohol appeared to be
present, conducted a DWI investigation, arrested Defendant, and ultimately
charged Defendant with aggravated DWI
in Santa Fe County Magistrate Court.
{3}The magistrate court conducted a
bench trial, and Defendant was convicted
of aggravated DWI, first offense. Defendant appealed the conviction to the First
Judicial District Court. In the district
court, Defendant filed a motion to suppress, arguing that Officer Vigil was not
properly cross-commissioned by the Santa
Fe County Sheriff ’s Office and, therefore,
had no authority to arrest Defendant. The
district court denied Defendant’s motion
to suppress, and the parties proceeded to
a bench trial. During the trial, Defendant
argued that, because the Tesuque Pueblo
Police Department participated in a grant
program that included a requirement that
Officer Vigil report on citations and arrests
relevant to the Motor Vehicle Code, Officer
Vigil’s compensation depended “in a way”
on his arrests for Motor Vehicle Code violations, and Defendant should be acquitted
in accordance with the defense afforded by
Section 66-8-137(B) (providing a defense
to defendants if the compensation of the
arresting officer depends in any way upon
the arrest or conviction). The district court
denied Defendant’s oral motion and found
Defendant guilty of aggravated DWI. Defendant timely filed a notice of appeal.
CROSS-COMMISSION AND
AUTHORITY TO ARREST
{4}The first issue Defendant raises is
whether Officer Vigil was properly crosscommissioned by the Santa Fe County
Sheriff and, therefore, authorized to arrest
Defendant for DWI. Defendant argues
that the Santa Fe County Sheriff failed to
comply with the statutory commission and
arrest requirements of the Motor Vehicle
Code when he purported to cross-commission Officer Vigil. Defendant therefore
asserts that his motion to suppress the evidence gathered by and testimony of Officer
Vigil should have been granted pursuant
to Article II, Section 10 of the New Mexico
Constitution, which protects against the
use of evidence obtained pursuant to unreasonable search and seizure. See State
v. Gutierrez, 1993-NMSC-062, ¶ 45, 116
N.M. 431, 863 P.2d 1052. Defendant argues
both that Officer Vigil was not properly
cross-commissioned as a special deputy
and, more broadly, that no tribal officer
could be properly cross-commissioned as a
special deputy by any county sheriff unless
the tribal officer was paid by the State of
New Mexico and wore a New Mexico State
Police Department uniform. We address
Defendant’s arguments below.
Standard of Review
{5}“A ruling on a motion to suppress
evidence presents a mixed question of law
and fact.” State v. Rivera, 2008-NMSC-056,
¶ 10, 144 N.M. 836, 192 P.3d 1213. Our
review is de novo. State v. Attaway, 1994NMSC-011, ¶¶ 6-7, 117 N.M. 141, 870 P.2d
103.
{6} Although New Mexico courts have addressed various issues dealing with Indian
and non-Indian defendants and officers
and other circumstances of commissioning of officers, this appeal presents a novel
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inquiry. In this case, a victimless crime
(DWI) was committed by a non-Indian in
Indian Country, and the arresting officer
was a tribal officer cross-commissioned by
the Santa Fe County Sheriff ’s Office. It is
well-settled that the state has jurisdiction
over victimless crimes committed by nonIndians in Indian Country, including DWI
offenses. State v. Harrison, 2010-NMSC038, ¶ 14, 148 N.M. 500, 238 P.3d 869; see
also State v. Romero, 2006-NMSC-039, ¶
12, 140 N.M. 299, 142 P.3d 887 (“[P]ueblos
are Indian [C]ountry.”). But see Branham,
2004-NMCA-131, ¶¶ 9-10, 13 (stating that
the state does not have authority to enforce
tribal laws on tribal lands, absent a written agreement to the contrary). Indeed,
Defendant does not dispute that a Santa
Fe County law enforcement officer would
have had authority to investigate the DWI
and arrest Defendant. Rather, the dispute is
whether Officer Vigil was properly crosscommissioned by the Santa Fe County
Sheriff and, as such, authorized to make
the arrest.
Cross-Commissioning Deputies/Special
Deputies
{7}NMSA 1978, Section 4-41-5 (1975)
authorizes sheriffs in all counties of New
Mexico to appoint deputies. NMSA 1978,
Section 4-41-10 (2006) authorizes the
sheriff to appoint “regular or permanent
deputy sheriff[s],” as well as “respectable
and orderly persons as special deputies.”
Although Section 4-41-10 does not expressly mention whether a sheriff may appoint as special deputies individuals who
are already full-time law enforcement officers of an Indian nation, tribe, or pueblo,
such officers fall within the subset of the
permitted “respectable and orderly persons” category and are, therefore, included.
Moreover, the Legislature has indirectly
recognized this authority. In enacting
NMSA 1978, Section 29-1-11 (2005), the
Legislature authorized duly commissioned
officers of the police or sheriff ’s department of any New Mexico Indian nation,
tribe, or pueblo to act as New Mexico peace
officers when commissioned by the chief
of the New Mexico State Police according
to procedures set forth in that statute. The
Legislature specifically provided in Section
29-1-11(G) that nothing in Section 29-111 “limits, impairs or nullifies the authority
of county sheriffs to appoint pursuant to
Chapter 4, Article 41 NMSA 1978 duly
commissioned state or federally certified
officers who are employees of a police or
sheriff ’s department of an Indian nation,
tribe or pueblo in New Mexico” (emphasis
30
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added). See also N.M. Att’y Gen. Op. 5783 (1957) (“[A] sheriff can commission
as a special deputy sheriff a full-time
law enforcement officer employed by a
municipality, the Navajo Tribe or the
Federal Government[, so long as t]he applicants . . . secure the appointment from
the sheriff . . . and qualify in accordance
with [New Mexico law] pertaining to the
qualification of deputy sheriffs.”).
Cross-Commission of Officer Vigil as a
Special Deputy for Santa Fe County
{8} No contention has been made by Defendant below or on appeal that Officer
Vigil was not a “respectable and orderly
person[ .]” Section 4-41-10. It is undisputed that Officer Vigil secured a written
appointment from the Santa Fe County
Sheriff. See NMSA 1978, § 29-1-9 (2006)
(requiring an appointment in writing from
a person authorized by law to appoint
special deputy sheriffs in order to assume
or exercise the “functions, power, duties,
and privileges” of the position). Officer
Vigil signed an oath of office, also signed
by the Santa Fe County Sheriff, and carried a card issued by the Santa Fe County
Sheriff ’s Office indicating Officer Vigil’s
cross-commissioning status. See § 29-1-9;
N.M. Att’y Gen. Op. 57-83. It is also undisputed that Officer Vigil was a properly
commissioned, full-time Tesuque Pueblo
tribal officer. Therefore, Officer Vigil was
properly commissioned as a special deputy
for the Santa Fe County Sheriff ’s Office.
What Officer Vigil was entitled to do as
a special deputy for the Santa Fe County
Sheriff ’s Office is a separate inquiry.
{9}The scope of Officer Vigil’s authority
depends on the authority given to him by
the Santa Fe County Sheriff. Section 4-4110 states that special deputies, as appointed
by a county sheriff, may serve a particular
order, writ, or process or, if the sheriff has
so deemed “necessary and required for
the purpose of preserving the peace,” may
act as otherwise authorized. NMSA 1978,
Section 4-41-9 (1855-1856) confirms that
“[t]he said deputies are hereby authorized
to discharge all the duties which belong
to the office of sheriff, that may be placed
under their charge by their principals[.]”
See Novak v. Dow, 1970-NMCA-104, ¶¶
5-7, 82 N.M. 30, 474 P.2d 712 (discussing
the potential authority of a special deputy
in accordance with Section 4-41-9 (citing
its prior codification at NMSA 1953, Section 15-40-11 (1865), identical to the current statute), and holding that the special
deputy had “such authority as had been
conferred upon him by [the] Sheriff ” and
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
that “[t]he extent of [the special deputy]’s
authority was a question of fact”).
{10} The Santa Fe County Sheriff testified
in this case that he gave Officer Vigil the
authority to enforce criminal and traffic
laws, including DWI, within Santa Fe
County. There was no conflicting evidence,
and, consequently, Officer Vigil was authorized to investigate and arrest Defendant
for any violations of DWI law occurring
in Santa Fe County.
Additional Requirements Unnecessary
{11} Defendant additionally argues that
the Legislature has imposed several other
requirements for proper cross-commissioning of officers that have not been met
in this case. We address each of these arguments.
{12} First, Defendant contends that
Officer Vigil’s commission was not valid
because, even though he signed an oath
of office, the oath of office was not filed.
However, Section 4-41-10 expressly states
that it is “not . . . necessary to give or file
any notice of such special appointment[.]”
No notice of Officer Vigil’s cross-commissioning as special deputy needed to be
given or filed regarding his appointment.
{13} Second, Defendant argues that Officer Vigil was neither wearing a uniform
nor paid the salary of a Santa Fe County
deputy sheriff, and, therefore, he was not
properly commissioned. However, as set
forth above, neither of these requirements
has been included in New Mexico statutory
or case law for proper cross-commissioning of a special deputy. Although there are
statutory requirements that an arresting
officer be commissioned, salaried, and in
uniform, the statutes do not specify that the
uniform or the salary be from the crosscommissioning authority. NMSA 1978,
Section 66-8-124(A) (2007) simply states
that arrests for violations under the Motor
Vehicle Code or other law relating to motor vehicles punishable as a misdemeanor
must be made by “a commissioned, salaried
peace officer who, at the time of arrest, is
wearing a uniform clearly indicating the
peace officer’s official status.” Similarly,
under NMSA 1978, Section 66-8-125(C)
(1978), members of the New Mexico State
Police, sheriffs, and their salaried deputies and members of any municipal police
force, may arrest without warrant any person present at the scene of a motor vehicle
accident, but they “may not make arrest
for traffic violations if not in uniform[.]”
We note that traffic stops, as temporary
detentions, are included within the term
“arrest” as used in Section 66-8-124(A)
Advance Opinions
and Section 66-8-125. State v. Slayton,
2009-NMSC-054, ¶ 20, 147 N.M. 340, 223
P.3d 337.
{14} We have addressed the requirements of Section 66-8-124(A) in State
v. Archuleta, 1994-NMCA-072, 118
N.M. 160, 879 P.2d 792. In that case, the
defendant contended that his traffic citation should have been dismissed because
the officer making the stop was not in
uniform. Id. ¶ 1. When he engaged the
emergency equipment on his police car to
stop the defendant, the officer was off-duty
and wearing civilian clothes. Id. ¶ 2. Before
approaching the defendant, the officer
put on a police department windbreaker
with a police department cloth shield
and the State of New Mexico emblem.
Id. We noted in Archuleta that the intent
of the Legislature in requiring the officer
making a traffic stop to wear a uniform
that plainly indicated the officer’s status
“was to enable the motorist to be certain
that the officer” making the stop “is, in
fact, a police officer.” Id. ¶ 9. We adopted
alternative tests to determine whether an
officer is “in uniform” for the purposes of
Section 66-8-124(A): an objective one—
“whether there are sufficient indicia that
would permit a reasonable person to believe the person purporting to be a peace
officer is, in fact, who he claims to be”; and
a subjective one—“whether the person
stopped and cited either personally knows
the officer or has information that should
cause him [or her] to believe the person
making the stop is an officer with official
status.” Archuleta, 1994-NMCA-072, ¶ 11.
Defendant does not dispute that Officer
Vigil was wearing his Tesuque Pueblo
Police Department uniform at the time
of the arrest. A reasonable person would
thus believe that Officer Vigil was a peace
officer, which is sufficient to satisfy the
requirement that the arresting officer be
in uniform.
{15} We additionally observed in Archuleta that the Legislature had amended
Section 66-8-124 in 1968 in order to recognize modern practices with respect to
police uniforms. Id. ¶ 10. Likewise, we do
not believe that the Legislature intended to
restrict the ability of cross-commissioned
officers to perform their dual responsibilities. The purpose of cross-commissioning
law enforcement officers is to promote
a functional law enforcement process
across jurisdictional boundaries. See Note,
Intergovernmental Compacts in Native
American Law: Models for Expanded Usage, 112 Harv. L. Rev. 922, 927 (1999) (ob-
http://www.nmcompcomm.us/
serving that “numerous states and tribes
have responded to the common need for
effective law enforcement by developing
cross-deputization” and other agreements). It would be absurd to expect that a
cross-commissioned officer with authority
in two jurisdictions would need to change
uniforms when the officer needs to make
a traffic stop or an arrest and is wearing
the uniform of the other jurisdiction. See
State v. Davis, 2003-NMSC-022, ¶ 13, 134
N.M. 172, 74 P.3d 1064 (stating that we do
not construe statutes in a manner leading
to absurd results).
{16} We reach the same result with respect to Officer Vigil’s salary. While, as
Defendant argues, Section 66-8-124(A)
and Section 66-8-125(C) grant the authority to arrest to “a commissioned, salaried
peace officer” and “New Mexico state
police, sheriffs and their salaried deputies, and members of any municipal police
force” respectively, neither section requires
the officer’s salary be from the authority
cross-commissioning the officer. For the
purposes of Section 66-8-124(A), Officer
Vigil was a “salaried peace officer” of the
Tesuque Pueblo. For Section 66-8-125(C),
the Tesuque Pueblo Police Department is
comparable to a municipal police force. See
N.M. Att’y Gen. Op. 57-83 (treating similarly municipalities and the Navajo Nation
for purposes of commissions as deputy
sheriffs under New Mexico law). Indeed,
the source of an officer’s salary, although
administratively significant, is not relevant
to the purposes of cross-commissioning
law enforcement officers to jointly perform law enforcement responsibilities. Cf.
Archuleta, 1994-NMCA-072, ¶¶ 9, 10 (stating that “[i]t seems clear enough that the
intention of the [L]egislature in requiring
the officer to wear a uniform plainly indicating his official status was to enable the
motorist to be certain that the officer who
stops him is, in fact, a police officer”). And
the fact that Santa Fe County did not also
provide Officer Vigil with a salary, above
and beyond the salary he received from the
Tesuque Pueblo Police Department, has
no bearing on whether Officer Vigil was
properly cross-commissioned. Cf. § 4-4110 (stating, after authorizing sheriffs to
appoint special deputies, that “[t]here shall
be no additional fees or per diem paid by
the counties for any additional deputies
other than as provided by law”). Moreover,
it would be absurd to require the salary of a
cross-commissioned officer to correspond
to the authority the officer is exercising at
the time of a traffic stop or arrest.
{17} Third, Defendant asserts that Officer Vigil was not authorized to carry a
concealed weapon because he was not
a “fully certified or full-time certified
sheriff[] deput[y].” However, Officer Vigil
was independently authorized to carry
his concealed weapon in connection with
his job as a Tesuque tribal police officer.
If Officer Vigil had not already been a
commissioned police officer with another
agency or was not otherwise entitled to
carry a concealed weapon, perhaps the
issue might have bearing on this case. As
it is, the issue of whether Officer Vigil carried a concealed weapon does not appear
to be relevant to the issues in this case and
does not provide information necessary
to determine whether Officer Vigil was
properly cross-commissioned as a special
deputy.
State v. Slayton and State v. Bricker
{18} Because Defendant extensively relies
on Slayton, 2009-NMSC-054, and State v.
Bricker, 2006-NMCA-052, 139 N.M. 513,
134 P.3d 800, to argue that Officer Vigil did
not have the authority to arrest Defendant
for DWI because Officer Vigil was not a
“commissioned peace officer”, we take the
opportunity to explain why those cases do
not bear on this appeal.
{19} The issue in Slayton was different
from the issue in this case. At issue here
is whether a cross-commissioning was effective; in Slayton, the issue was whether
a police service aide was commissioned
at all or had authority to make an arrest.
See 2009-NMSC-054, ¶¶ 1, 12, 15. Our
Supreme Court held in Slayton that the
police service aide was not commissioned
and was not authorized to make a misdemeanor arrest under the Motor Vehicle
Code. Id. ¶ 17. Whether a police service
aide is commissioned is not relevant to
this case. In Bricker, the custodial arrest
of the defendant was unlawful because
the defendant should have been issued a
summons and released. 2006-NMCA-052,
¶ 14; see Slayton, 2009-NMSC-054, ¶ 28. At
issue in Bricker was whether the unlawful
custodial arrest violated either the New
Mexico or United States Constitutions,
which would require suppression of evidence obtained consequent to the arrest.
2006-NMCA-052, ¶ 14. Neither Slayton
nor Bricker speaks to whether Officer
Vigil was properly cross-commissioned
or, if cross-commissioned, the limits of his
authority.
COMPENSATION FOR DWI ARRESTS
{20} The second issue Defendant raises
on appeal is whether Defendant was
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entitled to a defense under Section 66-8137(B) because Officer Vigil “was working
under a grant that targets the motoring
public[, and which] has the effect of incentivizing the officers to increase their rate of
pay[.]” Defendant concludes that Officer
Vigil’s conduct in making efforts to maintain the grant “was grounds for an acquittal
under the statute and [Defendant] should
have been found not guilty.”
The Grant: A Portion of Officer Vigil’s
Compensation
{21} The underlying facts regarding the
grant, pursuant to which Officer Vigil
received a portion of his pay, are undisputed, although the characterizations of
those facts differ. Officer Vigil testified
that he received a salary from the Tesuque
Pueblo Police Department and that, as part
of his job duties as a police officer, he was
charged with arresting and convicting individuals for offenses that included DWI.
The department received a grant from
the Bureau of Indian Affairs for dedicated
DWI police officers, which provided the
salaries for traffic officers and overtime
for other officers. Officer Vigil submitted
monthly statistics as information that was
used to apply for the grant. As a result of
the department’s receipt of the grant, Officer Vigil’s pay increased approximately
two dollars per hour. His pay, however, did
not fluctuate with the number of arrests he
made. He was included within the grant at
the time he arrested Defendant.
{22} The question for our review is
whether the Tesuque Pueblo Police Department’s receipt of the grant and Officer
Vigil’s resulting increase in compensation
constituted the type of “compensation”
depending upon arrest or conviction
prohibited by Section 66-8-137(B). We
review “factual findings under a substantial evidence standard, viewing the facts in
the light most favorable to the prevailing
party, and we review de novo whether the
district court correctly applied the law to
the facts.” Slayton, 2009-NMSC-054, ¶ 11.
Compensation Depending Upon Arrest
or Conviction
{23} Section 66-8-137(B) states:
If any person is arrested or
32
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brought to trial for violation
of the Motor Vehicle Code or
other law, ordinance or regulation relating to motor vehicles
punishable as a misdemeanor by
any officer, agent or employee of
any political subdivision, or before any municipal judge, whose
compensation depends in any
way upon the arrest or conviction of persons violating these
laws, ordinances or regulations,
the fact of such compensation or
that the person making the arrest
was not in uniform at the time is
a defense to the charge.
{24} Defendant argues that he was entitled to an acquittal based on Section
66-8-137(B) because Officer Vigil’s pay
depended “in a way” on his arrest of persons violating the Motor Vehicle Code. In
making this argument, Defendant does not
rely on the fact that Officer Vigil received
a salary for duties that included arresting
and convicting individuals for offenses
that included DWI. Defendant bases his
defense on the increase in Officer Vigil’s
pay in connection with the grant in which
the department was obligated to report the
number of automobile accidents investigated and DWI arrests made. According
to Defendant, the consequence of the grant
was that Officer Vigil’s compensation “in a
way” depended on his arrests and convictions.
{25} The question presented by Section
66-8-137(B) ultimately is, for what did
Officer Vigil receive his compensation. If
Officer Vigil received any compensation
for arresting or convicting individuals
for violations under the Motor Vehicle
Code or other law, ordinance, or regulation relating to motor vehicles punishable
as a misdemeanor, or if he received any
compensation for increasing his arrests or
convictions for such violations, Defendant
would be entitled to the defense under Section 66-8-137(B). However, none of these
circumstances appears to be the case here.
{26} As stated by Defendant, “[t]o receive
the money, the officers turn in to the police
captain information on numbers of arrests
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
and citations, the number of DWI arrests,
and the grant writers know the department is compliant because of the statistics
and number of arrests.” In his reply brief,
Defendant reiterates that “[the] Tesuque
[Pueblo Police Department] had to submit
enforcement statistics to keep [the grant],
this is clear.” In other words, according
to Defendant, to be entitled to the grant,
all that appears to be required is that the
Tesuque Pueblo Police Department turn
in data. Defendant has not pointed to
anything in the record to indicate that Officer Vigil was required to actually arrest or
convict a certain number of individuals in
order for the department to be eligible for
the grant, that Officer Vigil was required
to meet certain quotas to be eligible for
the grant, or that Officer Vigil’s pay was
linked to the number of arrests or convictions. Rather, Officer Vigil’s pay increased
because he agreed to report statistics. The
mere fact that Officer Vigil’s pay increased
pursuant to a grant that was given to the
department because Officer Vigil, presumably among others, reported on the number
of arrests and convictions does not trigger
the Section 66-8-137(B) defense.
CONCLUSION
{27} For the foregoing reasons, we hold
that Defendant has not met his burden of
demonstrating error and affirm the district
court’s conviction of Defendant. See State v.
Aragon, 1999-NMCA-060, ¶ 10, 127 N.M.
393, 981 P.2d 1211 (recognizing that there
is a presumption of correctness in the rulings of the trial court, and the party claiming error bears the burden of showing such
error). We affirm Defendant’s conviction
for aggravated DWI, first offense, contrary
to Section 66-8-102.
{28} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
J. MILES HANISEE, Judge
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“Once again the
Bar Bulletin Classified has
been instrumental in helping
me find work. It appears to be
just the job I need, too.”
Classified
Positions
Associate Attorney
The Law Office of Jill V. Johnson Vigil LLC.,
a Las Cruces based family law practice, is
seeking to expand and add an attorney to
our team. Applicants should have 3-5 years
experience in family law, be highly motivated,
able to multi-task and manage a large case
load. The Law Office of Jill V. Johnson Vigil
LLC. offers a comfortable and friendly work
environment with benefits and competitive
salary commensurate with your qualifications and experience. Applicants must be in
good standing with NM Bar and willing to
relocate to Las Cruces. Spanish speaking is
preferred, but not required. If you are ready
for your corner office with a view please send
your cover letter, resume and three references
via email to careers@jvjvlaw.com before
November 21, 2014. Check us out online at
www.jvjvlaw.com and "like" us on Facebook
Law Office of Jill V. Johnson Vigil.
Senior Litigation Attorney
The New Mexico Risk Management Division has an immediate position for a senior
litigation attorney in Santa Fe. The position
requires a Juris Doctorate Degree and three or
more years of experience practicing law and a
current license to practice law in New Mexico.
The successful candidate will have experience
in civil defense litigation, employment law or
public entity liability. The Risk Management
Division oversees litigation related to the tort
claims act and civil rights claims involving
state agencies and employees. Salary depends
on experience. Please submit resume to Rosa
Quintana at rosa.quintana@state.nm.us
Part Time and Full Time Attorneys
Are you interested in a professional position
where you can enjoy a good standard of living with a balanced quality of Life? Are you
interested in really making a difference in
your clients' lives? If so read on. Lightning
Legal Group focuses on domestic relations,
and the legal issues associated with family
law including divorce, legal separations, annulment, paternity, parents' rights, adoptions,
guardianships, custody issues, domestic violence, child support, spousal support, qualified domestic relations orders, grandparents'
rights, estate planning and probate. In essence, Lightning Legal covers the services
that are important in peoples' lives- from
cradle to grave, and beyond... Our mission is
to timely and effectively respond to legal issues in a proactive and effective manner. Our
comprehensive approach to legal issues, and
dedication to client empowerment mean we
creatively consider past, present and future
issues to seek results designed to minimize or
resolve legal problems. This means creative,
intuitive application of the law with compassionate representation. In serving our clients
we also provide special attention to the relationships within the family, cultural milieu,
and what is in the best interest of our clients
within the larger context of the life they are
leading and the life they wish to pursue. We
are in the process of expanding and in need of
Part Time and Full Time Attorneys licensed
and in good standing in New Mexico with
experience in Family Law, Civil Litigation,
and/or Probate. Successful applicants must
have demonstrated court room, client relations, and computer skills. We offer excellent
compensation and a great team working environment with flexible hours. At present, we
are comprised of 10 attorneys and 10 support
staff with offices in Albuquerque and Santa
Fe. Please feel welcome to visit our website at
lightninglegal.biz to find out more about us.
Please send cover letter, resume, and references to ac@lightninglegal.biz. All inquiries
are maintained as confidential. Thank you
for your interest.
Request for Applications
City of Albuquerque
City Attorney Position
Advertisement #R1500304
CITY ATTORNEY: Attorney shall communicate, meet and work closely with Mayor and
City Council on matters of concern to the
governing body; provides legal advice when
requested or required. Shall avoid all conflicts
of interest and shall not practice law privately.
Qualifications: Requires a Juris Doctorate
Degree from an accredited law school; shall
be licensed to practice law in the State o f New
Mexico; requires Experience in Municipal
Law with knowledge of City Ordinances; city
personnel Rules and Regulations; Purchasing
Regulations; State Statures; Experience in the
area of organization management, public law,
public speaking and negotiations. Salary will
be based upon experience and knowledge. All
applicants must submit, by expiration date,
and City Application. Resumes must be attached to the application in Microsoft Word
or PDF format. The On-line Application
Process can be accessed at web site www.cabq.
gov/jobs. Applications are also available at the
City of Albuquerque Human Resources Department 400 Marquette NW 7th Floor Suite
703, Albuquerque, NM 87102. Copies require
certifications, registration and/or licenses,
if not attached on-line, must be provided at
the time of interview. Application deadline is
December 1, 2014 or until the position is filled
Trial Lawyer
GREAT PAY for a hungry, compassionate,
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someone with a track record of loyalty, tenacity, and successful results at trial. Less experienced lawyers will be considered if extremely
qualified and extremely motivated. See our
Mission Statement at www.ParnallLaw.com.
Email cover letter, resume, references, and
university and law school grade transcripts
to Bert@ParnallLaw.com.
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
35
13th Judicial District Attorney
Senior Trial Attorney, Assistant Trial
Attorney, Associate Trial Attorney
Cibola, Sandoval, Valencia Counties
Senior Trial Attorney - This position requires
substantial knowledge and experience in
criminal prosecution, rules of criminal procedure and rules of evidence, as well as the
ability to handle a full-time complex felony
caseload. Admission to the New Mexico State
Bar and a minimum of five years as a practicing attorney are also required. Assistant
Trial Attorney - The 13th Judicial District
Attorney’s Office is accepting applications
for an entry to mid level attorney to fill the
positions of Assistant Trial Attorney. This
position requires misdemeanor and felony
caseload experience. Associate Trial Attorney - an entry level position for Cibola
(Grants), Sandoval (Bernalillo) or Valencia
(Belen) County Offices. The position requires
misdemeanor, juvenile and possible felony
cases. Upon request, be prepared to provide
a summary of cases tried. Salary for each
position is commensurate with experience.
Send resumes to Kathleen Colley, District
Office Manager, PO Box 1750, Bernalillo, NM
87004, or via E-Mail to: KColley@da.state.
nm.us. Deadline for submission of resumes:
Open until positions are filled.
Asst General Counsel –
Requisition Number - 1400789S
The New Mexico State University General
Counsel Office (UGC) office in Las Cruces,
NM has an opening for an Assistant General Counsel. The attorney will work directly
with other UGC attorneys, as well as outside
counsel, and university administrators in
providing legal counsel and document drafting on a broad range of legal issues, including
those related to academic and student affairs,
athletics, contracts, litigation support, civil
rights, international programs, real estate,
employment matters and other legal issues in
higher education. The attorney will also assist
in coordinating the University’s responses
to subpoenas and open records requests,
and drafting of a variety of transactional
documents. The online posting for this position can be found at http://jobs.nmsu.edu/
postings/20317 . Deadline for applications is
11/23/2014.
Lawyer Position
Guebert Bruckner P.C. seeks an attorney with
up to five years experience and the desire to
work in tort and insurance litigation. If interested, please send resume and recent writing
sample to: Hiring Partner, Guebert Bruckner
P.C., P.O. Box 93880, Albuquerque, NM
87199-3880. All replies are kept confidential.
No telephone calls please.
36
Assistant District Attorney
The Fifth Judicial District Attorney’s office has an immediate position open to a
new or experienced attorney. Salary will be
based upon the District Attorney Personnel and Compensation Plan with starting
salary range of an Associate Trial Attorney
to a Senior Trial Attorney ($41,685.00 to
$72,575.00). Please send resume to Janetta
B. Hicks, District Attorney, 400 N. Virginia
Ave., Suite G-2, Roswell, NM 88201-6222 or
e-mail to jhicks@da.state.nm.us.
Assistant District Attorney
The Second Judicial District Attorney’s office in Bernalillo County is looking for both
entry-level and experienced prosecutors.
Qualified applicants may be considered
for positions in Violent Crimes, Crimes
Against Children, Metropolitan Court, and
other divisions in the office. Salary and job
assignments will be based upon experience
and the District Attorney Personnel and
Compensation Plan. If interested please mail/
fax/e-mail a resume and letter of interest
to Jeff Peters, Human Resources Director,
District Attorney’s Office, 520 Lomas Blvd.,
N.W., Albuquerque, NM 87102. Fax: 505-2411306. E-mail: jpeters@da2nd.state.nm.us., or
go to www.2nd.nmdas.com. Resumes must
be received no later than 5:00 pm on Friday
December 5, 2014 to be considered.
Associate Attorney Position
Riley, Shane & Keller, P.A., an Albuquerque
AV-rated defense firm, seeks an Associate
to help handle our increasing case load. We
are seeking a person with one to five years
experience. Candidate should have a strong
academic background as well as skill and
interest in research, writing and discovery
support. Competitive salary and benefits.
Please fax or e-mail resumes and references
to our office at 3880 Osuna Rd., NE, Albuquerque, NM 87109 c/o Office Manager (fax)
505-883-4362 or mvelasquez@rsk-law.com
Attorneys Needed
Attorneys needed, 1 requires litigation exp.
for court hearings &/or trials, mediations,
discovery, mentoring newer attorneys...2nd
attorney, 0-3 yrs exp. (exp. a plus). Must be
able to multi-task in a high volume, fastpaced, reputable, rapidly growing law firm
rep. numerous nationwide banking clients.
Foreclosure & bankruptcy exp. a plus. Nice
office in the Journal Center area & great
training program – be a part of our new staff
addition & building expansion! Join our successful & growing firm! Good benefits (hol,
vac, sick, health, dent, retir. & more). Submit
in conf. cover letter, resume, sal hist & req to
resume@roselbrand.com
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
Child Support Hearing Officer
2ND Judicial District Court is currently
accepting applications for a part time Child
Support Hearing Officer (At Will -Term). J.D.
from an accredited law school, New Mexico
licensed attorney in good standing required.
Minimum of five years experience in the
practice of law with at least 20% of practice
having been in family law or domestic relations matters. Familiarity with the use of New
Mexico Child Support Guidelines and related
statutory laws and regulations preferred.
Complete Job Announcement may be viewed
at www.nmcourts.gov. Apply at or send application or resume supplemental form with
proof of licensure and education to the Second Judicial District Court, Human Resource
Office, P.O. Box 488 (400 Lomas Blvd. NW),
Albuquerque, NM 87102. Applications not
including copies of information requested
on the employment application will be rejected. Applications may be obtained on the
Judicial Branch web page at www.nmcourts.
gov. Resumes will not be accepted in lieu of
an application. CLOSING DATE: December
10, 2014 at 5:00 p.m. EOE
Request for Applications
City of Albuquerque
Assistant City Attorney Positions
Assistant City Attorney: Assistant City Attorney positions available with the Real Estate
and Land Use Division. One position with 1-3
years experience and a second position with
7-10 years experience in real estate or land
use litigation in handling pretrial discovery,
motion practice, trial preparation, and trial.
The position will also include real estate and
land use contract review and advising City
Departments and Administrative Boards
regarding land use decisions and approvals.
Water Law and Administrative Law experience a plus. Salary will be based upon experience and the City of Albuquerque Attorney's
Personnel and Compensation Plan with a
City of Albuquerque Benefits package. Please
submit resume to the attention of "Land Use
Attorney Application." c/o Roberta Duran,
Fiscal Officer, P. O. Box 2248, Albuquerque,
NM 87103. or e-mail to rduran@cabq.gov
Application deadline is December 12, 2014
Associate Attorney
Vigil Law Firm, P.A., an established AV rated
Law Firm in Albuquerque, NM, seeks an Associate Attorney with 2-7 years’ experience
who is enthusiastic, personable, and possesses
strong writing, research, and critical thinking skills for work in Medical Malpractice,
Products Liability, and General Negligence
Litigation for busy Plaintiffs’ practice. Please
email resume, references, and a writing
sample to admin@zlaws.com.
Attorneys for Contract Opportunity
The Law Offices of the Public Defender is
actively seeking attorneys for an immediate
contract opportunity in Lincoln County, New
Mexico. The hourly rate of $85.00 per hour
will be paid for all attorney time spent on client case representation. Qualified candidates
must be licensed members of the New Mexico
bar with criminal defense experience. Ideal
candidates will have criminal jury trial experience, a strong work ethic, the ability to
communicate effectively with clients, and a
genuine interest in helping individuals accused of a crime and facing the legal system
at unexpected—and often critical—moments
in their lives. Qualifications: Active membership in the New Mexico state bar is required;
Criminal defense experience; Effective communication skills, particularly the ability to
communicate clearly and compassionately
with clients; Immediate availability is desirable. Would you like to learn more about this
contract attorney opportunities with the Law
Offices of the Public Defender? If so, then
please submit a cover letter, resume, 3 references, and writing sample to lee.hood@
lopnm.us Or, call (505) 469-8178 for further
information. Equal Opportunity Employer
Minorities/Women/ Veterans/Disabled.
Attorney - Advanced Position
Office of Superintendent of
Insurance
State of New Mexico
The Office of Superintendent of Insurance
(OSI) is seeking an attorney to fill a LawyerA position in the Staff Counsel Division.
Staff Counsel represents 12 client bureaus;
Financial Audit, Property & Casualty, Title,
Workers' Compensation, Company Licensing, Producer Licensing, Examinations,
Consumer Assistance, Investigations, Life &
Health, Managed Health Care and Affordable
Care Act Implementation. In addition, Staff
Counsel initiates and finalizes rulemakings required by OSI. Staff Counsel may
provide legal advice and services directly to
the Superintendent of Insurance in matters
not involving adjudicated proceedings. The
position requires a J.D. degree, at least five
(5) years experience practicing law, and a
valid New Mexico law license. Experience
in insurance law, administrative law, and/or
litigation is desirable. Any interested persons
must (i) apply with the State Personnel Office
at http://www.spo.state.nm.us/ by clicking
on, "Job Opportunities" and submitting an
application for Lawyer-A (#2014-05724), and
(ii) send a resume, writing sample and letter
of interest to: Mary S. Howells, Chief Staff
Counsel, PO Box 1689, Santa Fe, New Mexico
87504-1689 or mary.howells@state.nm.us.
The salary range is $44,782.00 to $77,917.00.
Full-time Legal Assistant/Paralegal
Full-time Legal Assistant/Paralegal needed
for mid-size civil litigation office dealing
in Personal Injury and Social Security Disability. This is a high paced environment
and candidates should be able to read and
interpret medical records and bills, write
demands, prioritize tasks at hand, be detail
oriented, well organized, multi-task, be a selfmotivated individual, Mac computer literate
a must, Spanish speaker a plus. Microsoft
Word, transcription and proofreading skills
are key, along with good communication
skills, problem solving and an energetic
personality. Successful candidate will show
initiative and attention to detail. Salary DOE.
Please email resume if interested at julieta.
maldonado@lrioslaw.com.
Medical-Legal Paralegal
Gorence & Oliveros, P.C. is looking for a
full-time medical-legal paralegal to work
in a high volume law firm. Must have a
minimum of five years trial and/or medical
malpractice experience. Extensive trial experience and experience in a small law firm
preferred. Excellent typing skills with at least
70 wpm, excellent grammar, proof-reading,
organizational skills, and applicant must be
a team player. Experience with federal and
state e-filing, discovery, complaints, summarizing medical records, and scheduling
depositions. Please submit cover letter with
salary requirements, resume and at least three
references to al@golaw.us.
Legal Assistant I
The Bernalillo County Attorney’s Office is
seeking applications for a Legal Assistant I
position to assist the Public Safety Attorney.
Major duties and responsibilities will include
receiving and answering routine inquiries
and phone calls, maintaining records pertaining to daily transactions and business detail of the department, calendaring meetings
and administrative hearings, researching and
compiling data, preparing and composing
documents and correspondence and assisting
in the research and compiling of data and exhibits for administrative hearings. Minimum
qualifications: High school diploma or GED
and four (4) years of secretarial or clerical
experience. Post-secondary education in the
legal field or related field may be substituted
for work experience on a year for year basis.
$13.20 - $16.57 per hr. depending on experience and education. Excellent benefit package
included with salary. Applications accepted
on-line at www.bernco.gov. Deadline: Until filled BERNALILLO COUNTY IS AN
EQUAL OPPORTUNITY EMPLOYER
Paralegal
The Santa Fe office of Hinkle Shanor LLP
seeks a paralegal for the practice areas of
environmental, water, natural resources,
real property, public utility and administrative law. Candidates should have a strong
academic background, excellent research
skills and the ability to work independently.
Competitive salary and benefits. All inquires
kept confidential. Santa Fe resident preferred.
Please email resume to: gromero@hinklelawfirm.com
Legal Assistant to Senior Partner
Allen, Shepherd, Lewis & Syra, P.A. is seeking a Legal Assistant to assist Ned Shepherd,
a senior partner of the firm. Duties include
administrative tasks related to legal cases.
Must have a high school diploma with five
or more years of directly related experience
working in a defense, civil litigation law firm
or similar law practice. Associates degree
and/or certificate related to legal administration work is preferred. Must be proficient in
Microsoft Office, computerized databases,
related software and the ability to learn new,
complex programs. Experience with TimeMatters is a plus. Must have an understanding of legal documents and knowledge of
court processes, including the ability to
draft documents and follow them through
the process. Seeking a highly skilled, professional, thoughtful, organized and motivated
individual with attention to detail who can
work in a demanding role. If you believe you
are qualified and have an interest, please send
resume, cover letter and salary demands to
hr@allenlawnm.com.
Paralegal
AV Rated insurance defense firm needs fulltime paralegal. Seeking individual with minimum of three years experience as a paralegal
in insurance defense. Excellent work environment, salary and benefits. Send resume and
references to Riley, Shane & Keller, P.A., Office Mgr, 3880 Osuna Rd., Albuquerque, NM
87109 or email to mvelasquez @rsk-law.com.
Experienced Paralegal/Legal
Assistant
EXPER IENCED PAR ALEGAL/LEGAL
ASSISTANT wanted for Albuquerque personal injury attorney at Glasheen, Valles &
Inderman, LLP. Bilingual‐Spanish a plus.
Salary depends on qualifications and experience. Benefits include health insurance and
retirement plan. Please email résumés to
employment@glasheenlaw.com. No phone
calls please.
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
37
Legal Secretary/Assistant
Bogardus & Scott, Attorneys at Law, is seeking a full-time legal secretary/assistant with
at least 2 years of experience. Must be computer literate and proficient with MS Word,
Outlook, and practice management soft ware.
Must be familiar with litigation process,
court rules, and filing procedures. Experience
with workers' compensation/employment law
a plus, Spanish-speaking a plus. Please send
cover letter and resume to bob@kbrslaw.com.
Services
Office Space
Downtown Offices
One or two offices available for rent, including secretarial areas, at 2040 4th St. NW (I-40
& 4th St.), ABQ. Rent includes receptionist,
use of conference rooms, high speed internet,
phone system, free parking for staff and clients, use of copy machine, fax machine and
employee lounge. Contact Jerry or George at
505-243-6721 or gbischof@dcbf.net.
620 Roma N.W.
Research and Writing Assignments
Licensed attorney with 7 years appellate court
experience is available for research and writing assignments, including motions, appellate briefs, issue research and memoranda of
law. Contact Lorien House at 505-715-6566
or llhouselaw@gmail.com.
Briefs, Research, Appeals--
Leave the writing to me. Experienced, effective, reasonable. cindi.pearlman@gmail.com
(505) 281 6797
Office Space
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference rooms, a large waiting area, access to
full library, receptionist to greet clients and
take calls. Call 243-3751 for appointment to
inspect.
2 spaces left , share space with 5 small law
firms, collegial atmosphere, referrals possible,
mentoring possible, perfect for new lawyer or
lawyer starting a solo practice; plus dedicated
workstation/file space; plus shared space: two
conference rooms, restrooms, break room,
waiting areas. Services include janitorial,
reception, and all utilities, including phone
and internet. Dedicated domain space available on server, copier available. Off street
parking. $550/mo. per office. Near UNM Law
School, quick freeway access to downtown.
Call Shelly at 265-6491.
Furnished Offices for Rent
Two furnished offices for rent, one block
from courthouses, all amenities: copier, fax,
telephone system, conference room, internet,
phone service, call Ramona for more information, 243-7170.
Business Opportunities
Real Estate Practice
Contemplating sale of real estate practice.
Will entertain inquires. 888-8888
Beat the h!
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Holiday
Advertising
Schedule
Due to holiday closures, the following advertising submissions for the Bar Bulletin will apply:
Dec. 24, 2014:
Advertising submissions due Dec. 10, 2014
Jan. 7, 2014 issue:
Advertising submissions due Dec. 15, 2014
For more advertising information, contact:
Marcia C. Ulibarri at 505-797-6058 or email mulibarri@nmbar.org
38
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
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Digital Print Center
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Custom printed cards starting at $.60 each
For more information, contact Marcia Ulibarri
at 505-797-6058 or mulibarri@nmbar.org
Ask about your member discount.
Orders placed by Dec. 12 will be ready by Dec. 19.
DIGITAL PRINT CENTER
Bar Bulletin - November 19, 2014 - Volume 53, No. 47
39
State Bar of
New Mexico
2015 Licensing
Notification
Your 2015 State Bar licensing fees and certifications are due
Dec. 31, 2014, and must be completed by Feb. 1, 2015,
to avoid non-compliance and related late fees.
n
o
Coming So
Complete your annual licensing requirements
at www.nmbar.org.
Payment by credit and debit card* and e-check are available.
If you have any questions, please call 505-797-6083
or email license@nmbar.org.
Online payment by credit and debit card will incur a service charge.
*