March 18, 2015 • Volume 54, No. 11
Inside This Issue
Table of Contents..................................................... 3
Bernalillo County Metropolitan Court:
Investiture Ceremonies for
Judges Weaks and Chavez...................................... 4
Animal Law Section: UNM Moot Court Team
Shares Competition Experience............................ 4
Alternative Dispute Resolution Committee
Seeking Members for Subcommittees.................. 4
Board of Bar Commissioners:
Feb. 27 Meeting Summary..................................... 4
Limited License Legal Technician May Be
in New Mexico’s Future, by D.D. Wolohan........... 7
2015–2016 Bench & Bar Directory:
Update Your Contact Information........................ 7
Hearsay/In Memoriam........................................... 8
Rules/Orders
Proposed Amendments to Supreme Court
Rules of Practice and Procedure.....................16
From the New Mexico Supreme Court
2015-NMSC-003, No. 34,583:
State of New Mexico, ex rel.
Children, Youth and Families
Department v. Djamila B..................................22
Gila Rhythms, by Linda S. Boatwright (see page 3)
Azurite Gallery, Silver City
March 20
CLE Planner
The Impact of the Legal System
on People of Color
5.5 G
1.0 EP
also available via
LIVE WEBCAST
Friday, March 20, 2015 • 8:30 a.m.-4:30 p.m.
State Bar Center
Co-sponsor: State Bar Committee on Diversity in the Legal Profession, New Mexico Black Lawyers Association and
New Mexico Hispanic Bar
March 26
Standard Fee: $265
State Bar Committee on Diversity in the Legal Profession, New Mexico Black Lawyers Association and New Mexico
Hispanic Bar members; government and legal services attorneys; and Paralegal Division members: $195
Webcast Fee: $295
2015 Solo and Small Firm Institute:
Law Practice Management
3.0 G
4.0 EP
also available via
LIVE WEBCAST
Thursday, March 26, 2015 • 9 a.m.-5:15 p.m.
State Bar Center
March 27
Co-sponsor: Solo and Small Firm Section
Standard Fee: $275
Solo and Small Firm Section members, government and legal services attorneys, and Paralegal Division members $245
Webcast Fee: $309
4.8 G 1.2 EP
2015’s Best Law Office Technology,
also available via
Software and Tools—Improve Client
LIVE WEBCAST
Service, Increase Speed and Lower Your Costs
presented by Barron K. Henley, Esq., partner Affinity Consulting Group
Friday, March 27, 2015 • 9 a.m.-4:30 p.m.
State Bar Center, Albuquerque
Standard Fee: $249
Government and legal services attorneys, and Paralegal Division members $219
Webcast Fee: $279
Barron Henley is an expert in launching new law firms and overhauling existing firms. This seminar lays out a complete
roadmap for building a modern, efficient law office focused on delivering better client service. The explanations are in plain
English, the recommendations are specific, and all of the solutions are accessible even if you don’t have a big budget and/
or don’t consider yourself a techie.
Register online at www.nmbar.org or call 505-797-6020.
CENTER FOR LEGAL EDUCATION
2
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
Table of Contents
Officers, Board of Bar Commissioners
Mary Martha Chicoski, President
J. Brent Moore, President-Elect
Scotty A. Holloman, Vice President
Dustin K. Hunter, Secretary-Treasurer
Erika E. Anderson, Immediate Past President
Board of Editors
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Kristin J. Dalton
Curtis Hayes
Bruce Herr
Maureen S. Moore
Andrew Sefzik
Mark Standridge
Carolyn Wolf
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
©2015, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: address@nmbar.org. • www.nmbar.org
March 18, 2015, Vol. 54, No. 11
Notices .................................................................................................................................................................4
Limited License Legal Technician May Be in New Mexico’s Future, by D.D. Wolohan.....................7
Hearsay/In Memoriam.....................................................................................................................................8
Legal Education Calendar........................................................................................................................... 10
Writs of Certiorari .......................................................................................................................................... 12
Court of Appeals Opinions List.................................................................................................................. 14
Recent Rule-Making Activity...................................................................................................................... 15
Rules/Orders
Proposed Amendments to Supreme Court Rules of Practice and Procedure................ 16
Opinions
From the New Mexico Supreme Court
2015-NMSC-003, No. 34,583:
State of New Mexico, ex rel. Children, Youth and Families Department v.
Djamila B.................................................................................................................................................. 22
Advertising....................................................................................................................................................... 29
Meetings
State Bar Workshops
March
March
18
Real Property, Trust and Estate Section
Trust and Estate Division,
Noon, State Bar Center
18
Legal Resources for the Elderly Workshop
10–11 a.m., Presentation
11:30 a.m.–2:30 p.m., Clinics
Cibola Senior Citizens Center, Grants
18
Committee on Women and the Legal
Profession, noon, Modrall Sperling
18
Law Practice Management Committee,
Noon, State Bar Center
20
Family Law Section BOD,
9 a.m., via teleconference
28
Consumer Debt/Bankruptcy Workshop
9 a.m., The Law Office of Kenneth Egan,
Las Cruces
April
20
Indian Law Section BOD,
9 a.m., State Bar Center
1
Divorce Options Workshop
6 p.m., State Bar Center
20
Trial Practice Section BOD,
Noon, State Bar Center
1
Civil Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
24
Appellate Practice Section BOD,
Noon, via teleconference
24
Intellectual Property Law Section BOD,
Noon, Lewis Roca Rothgerber
26
Natural Resources, Energy and
Environmental Law Section BOD,
Noon, via teleconference
25
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
22
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
23
Consumer Debt/Bankruptcy Workshop
5:30 p.m., The Law Office of Kenneth Egan,
Las Cruces
Cover Artist: After moving to Silver City with her husband and two children in 1995, Linda Boatwright saw the Southwest
as an inspiration to renew her work in pastels. She finds the landscape is often taken for granted, so she pushes the colors
and drama to a higher level of intensity. Boatwright hopes to bring the viewer to a new awareness of the beauty around
them and inspire them to take a second look.
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
3
Notices
Court News
N.M. Board of
Legal Specialization
Professionalism Tip
With respect to opposing parties and their counsel:
I will refrain from excessive and abusive discovery, and I will comply with
reasonable discovery requests.
Comments Solicited
The following attorney is applying for
certification as a specialist in the area of
law identified. Application is made under
the New Mexico Board of Legal Specialization, Rules 19-101 through 19-312
NMRA, which provide that the names of
those seeking to qualify shall be released
for publication. Further, attorneys and
others are encouraged to comment upon
any of the applicant’s qualifications within
30 days after the publication of this notice.
Address comments to New Mexico Board
of Legal Specialization, PO Box 93070,
Albuquerque, NM 87199.
Employment/Labor Law
Michael Schwarz
N.M. Commission on
Access to Justice
Meeting Notice
The next meeting of the New Mexico
Commission on Access to Justice is
noon–4 p.m., March 20, at the State Bar
Center. Interested parties from the private
bar and the public are welcome to attend.
For more information about the Commission, visit www.nmbar.org and chose
“Access to Justice” under “for the Public.”
First Judicial District Court
Mass Reassignment
Gov. Susana Martinez announced the
appointment of Jennifer L. Attrep to fill
the vacancy in Division V of the First
Judicial District. Effective Feb. 25, a mass
reassignment of all Division V occurred.
All cases previously assigned to Division
V, were assigned to District Judge Attrep.
Parties who have not previously exercised
their right to challenge or excuse will have
10 days from March 25 to challenge or
excuse the judge pursuant to Rule 1-088.1.
Bernalillo County
Metropolitan Court
Investiture Ceremonies for
Judges Weaks and Chavez
Members of the legal community and
the public are invited to attend the investiture of Hon. Courtney B. Weaks, Division
IV, and Hon. Vidalia Chavez, Division
XIV. The ceremony will be held at 5 p.m.
on March 26 at the Albuquerque Country
Club, located at 601 Laguna Blvd SW, with
4
a reception to follow. Judges who wish to
participate in the ceremony should bring
their robes and report to the Albuquerque
Country Club by 4:45 p.m.
State Bar News
Attorney Support Groups
• April 6, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• April 13, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, Room 1119 (The group
meets the second Monday of the month.)
• April 20, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Animal Law Section
UNM Moot Court Team Shares
Competition Experience
This year’s UNM School of Law Animal
Law Moot Court Team will discuss their
argument and experience at the national
competition at Harvard Law School, at
the 11:30 a.m. to 12:30 p.m. Animal Talk
on Wednesday, March 25 at the State Bar
Center. This year’s problem was based
upon a fictitious U.S. statute which provides for video surveillance of slaughter
plants. Veronica Gonzales and Dillon
Fisher-Ives will discuss the 1st and 4th
Amendment claims that were the focus of
the competition arguments as well as the
value of the moot court experience and
the involvement of local attorneys and
judges in their practice rounds. R.S.V.P.
by March 24 to Evann Kleinschmidt at
ekleinschmidt@nmbar.org. Refreshments
and cookies will be provided.
Alternative Dispute
Resolution Committee
CLE Series: ‘Mediating in Courts’
Norm Gagne and Susan Barnes
Anderson will present “Mediating in
Courts of Limited Jurisdiction—Are
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
You Part of the Solution or Part of the
Problem?” (1.0 G) as part of the ADR
Committee CLE Series from 12:30–1:30
p.m., April 30, at the State Bar Center
(and by teleconference). To register,
visit www.nmbar.org. Teleconference
attendees must pre-register by calling
505-797-6020. The ADR Committee will
meet prior to the CLE program at noon.
Seeking Members for
Subcommittees
The Alternative Dispute Resolution
Committee is seeking members for its arbitration and court-connected ADR services
subcommittees. Those interested in being
involved should email Kim Montgomery
at MobileMediators@yahoo.com.
Board of Bar Commissioners
Meeting Summary
The Board of Bar Commissioners met
on Feb. 27 at the State Bar Center. Action
taken at the meeting was as follows:
•Received an accounting presentation
on intercompany transactions and
payables and receivables between the
State Bar and the Bar Foundation;
• Held an executive session;
•Approved the Dec. 10, 2014, meeting
minutes with one amendment;
•Accepted the December year-end 2014
financials and executive summaries;
•Approved the 2015 New Mexico State
Bar Foundation budget;
•Accepted the 2013 Audit and Management Letter and approved entering into
an engagement letter with Burt and
Company for the 2014 audit;
•Approved a proposal for a CLE survey
to be conducted by Research & Polling
to determine preferred format and
providers and explore way to increase
participation and market share;
•Approved a proposal from Starline
Printing for the Bench & Bar Directory;
•Discussed a request from a member
to fund a loan forgiveness program;
denied the request and referred them
to the state’s loan forgiveness programs;
•Received a request from a member to
revisit the fee waiver policy and denied
the request;
•Approved purchasing CDs, rather
than participating in a liquid insured
deposits program, to protect funds over
$250,000;
•Received a report on dues collected to
date; approximately 250 remain unpaid;
•Reported that IT costs will be under
budget by approximately $20,000 due
to some of the expenses being paid in
2015;
•Tabled discussion of options for paying
down the loan to the May meeting;
•Received a request from the Southwest
Women’s Law Center to sponsor their
10th Anniversary and 4th Annual
Celebrating Women’s Stories Banquet
and denied the request;
•Received a report from the Bar Foundation/CLE Planning Committee;
•
Received a report from the Bylaws and
Policies Committee and approved an
amendment to the State Bar Bylaws,
Article IV, Section 4.5, to allow for
telephonic Board of Bar Commissioners meetings; approved the ADR
Committee’s request for an exception
to the Committees Policy to permit a
non-lawyer to serve as a co-chair of
the committee, provided that at least
one chairperson is a lawyer; approved
the Employment and Labor Law
Section’s request to amend its bylaws
to add a student member to their
board; and approved the Bankruptcy
Section’s request to amend its bylaws
to add a non-voting representative
from the UNM Law School to their
board; and discussed whether a policy
is needed for staff complaints against
members and bar commissioners and
referred it to the Personnel Committee;
•
Appointed Joe Sawyer from Farmington
to the vacancy in the Second Bar Commissioner District through Dec. 31,
2015;
•Discussed the LPL Committee’s Best
Practices List and approved for the
committee chair to send it out to
insurance carriers and brokers in New
Mexico; the list will also be published
in the Bar Bulletin and on the website;
•Distributed the 2015 Board of Bar
Commissioners Internal Committees
and Supreme Court Board and Committee Liaison rosters;
•Received annual reports from the sections and committees pursuant to the
State Bar Bylaws; those that did not
submit an annual report will be placed
on the sunset list;
•Chief Justice Barbara J. Vigil swore-in
the following new commissioners and
division representatives: Aja N. Brooks
from the First Bar Commissioner District, Jared G. Kallunki from the Sixth
Bar Commissioner District, Young
Lawyers Division Chair Kenneth H.
Stalter, and Paralegal Division Liaison
Eileen Casadevall.
Note: The minutes in their entirety will
be available on the State Bar’s website
following approval by the Board at the
May 8 meeting.
Committee on Diversity and
the Legal Profession
Discounted CLE Rate for
Committee Members
The CLE on March 20, “The Impact
of the Legal System on People of Color”
(5.5 G, 1.0 EP), offers a special rate of $195
for Committee on Diversity members. To
register, visit nmbar.org or call or 505-7976020.
Young Lawyers Division
Four Corners Regional Conference
YLD is participating in a regional
leadership summit for YLD members in
New Mexico, Arizona, Utah and Colorado
April 9-13 in Aspen, Colo. The conference
will include speakers and panels who
will discuss leadership skills. In addition,
the conference will provide networking,
a service project and skiing. For more
information, contact Casey Kannenberg,
ckannenberg@fclaw.com, Colorado Bar
Association YLD.
UNM
Law Library
Hours Through May 9
Building & Circulation
Monday–Thursday Friday
Saturday
Sunday
Reference
Monday–Friday
Librarian on call
Saturday–Sunday
8 a.m.–10 p.m.
8 a.m.–6 p.m.
8 a.m.–5 p.m.
Noon–8 p.m.
9 a.m.–6 p.m.
3–6 p.m.
Closed
Natural Resources and
Environmental Law Program
Two Free Events
The UNM School of Law’s Natural
Resources and Environmental Law Program and the Utton Center are presenting
Federal Energy Regulation Commissioner
Ethics Assistance
Contact the ethics helpline at 800-326-8155
for immediate assistance or for a written
response to an ethics inquiry regarding one’s
own conduct. Send original questions to
the Ethics Advisory Committee in care of
rspinello@nmbar.org.
Norman Bay in a free CLE lecture, “An
Overview of FERC and the Energy Markets Today,” 5:15–6:15 p.m., March 20 in
Room 2401 at the law school. A reception
follows. At noon on Friday, March 27, Bonnie Colby, Ph.D., will speak about “Water
Banking for a Resilient New Mexico
Economy.” Colby, a University of Arizona
professor, does research in water resource
economics. This presentation is not a CLE
program.
Other Bars
Albuquerque Bar Association
Law Day Luncheon
Members of the legal community are invited to the Albuquerque Bar Association’s
2015 Law Day Luncheon at 11:45 a.m.,
May 1, at the Hyatt Regency Downtown in
Albuquerque. Renee Lerner, professor of
law at the George Washington University
Law School, will present “Ancient Liberties:
Magna Carta and Trial by Jury in America.”
Tickets are $40 per person or $400 for a
table of 10. Sponsorship opportunities
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org > for Members >
Lawyers/Judges Assistance
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
5
are available and start at $500. For more
information, visit www.abqbar.org or call
505-842-1151. Register by noon, April 23.
Federal Bar Association
Supreme Court Review CLE
The New Mexico chapter of the Federal
Bar Association will host a luncheon, followed by a CLE program, featuring Erwin
Chemerinsky, dean of the University of
California, Irvine, School of Law, distinguished professor of law, and Raymond
Pryke professor of First Amendment law.
Chemerinsky will provide a “Supreme
Court Review” at the April 30 CLE in Santa
Fe. One hour of CLE credit is anticipated
for this event. The cost and the location of
the event will be announced in the coming
weeks.
New Mexico Criminal Defense
Lawyers Association
Federal Practice CLE
The New Mexico Criminal Defense
Lawyers Association is hosting another
Federal Practice CLE seminar (6.0 G) on
April 10 and bringing back Jeff Carson,
retired operations manager of the Bureau
of Prisons. Other topics to be addressed
in this seminar will include misdemeanor
practice in federal court, statutory enhancements, and reducing drug sentences
under the new guidelines. To register, visit
www.nmcdla.org, or call 505-992-0050.
Save the Date: Indian Law CLE in
Durango
The New Mexico Criminal Defense
Lawyers Association is partnering with the
Colorado Criminal Defense Bar to host a
6
CLE seminar on May 1 in Durango, Colo.,
titled “Criminal Justice Issues In & Around
Indian Country” (4.5 G, 1.0 EP). Plan for
a relaxing long weekend trip and learn
the ropes of Indian law while surrounded
by the beautiful landscapes of Durango.
Topics to be covered include federal and
state jurisdictional issues, representing
pro bono clients in tribal court practically and ethically, and civil issues related
to criminal charges on Native land. Visit
www.nmcdla.org or call 505-992-0050 to
register and to get information on how to
reserve discounted hotel rooms early.
Trial Skills College
Need to brush up on trial tactics?
Several of New Mexico’s top trial lawyers
have teamed up again this year for the
New Mexico Criminal Defense Lawyers
Association’s Trial Skills College on March
27–28 in Albuquerque. This is a two-day
course of lectures, small group practice
and video review aspects of a trial from
voir dire to closing statements. Whether
you’re a new lawyer, or need to brush up on
your expertise, everyone is bound to learn
something new. The CLE provides a total
of 14.5 general CLE credits. There are only
36 seats available, so don’t wait to register.
Visit www.nmcdla.org for more details.
Other News
Southwest Women’s Law
Center
10th Anniversary and Celebrating
Women’s Stories
The Southwest Women’s Law Center
invites members of the legal community
to attend its 10th Anniversary and Fourth
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
Annual Celebrating Women’s Stories featuring special guest U.S. Congresswoman
Michelle Lujan Grisham and honoring
SWLC Founding Director Jane Wishner.
The event will take place on March 28 at
the University of New Mexico Student
Union Building (Ballrooms A, B and C) in
Albuquerque. The reception will begin at
6 p.m. and dinner will be served at 7 p.m.
The event will also recognize the
outstanding achievements of Cosette
Wheeler, Ph.D., for advancing women’s
health; Claudia Medina for advocating
against domestic violence, Martha Burk for
advancing equal pay for women; Rep. Jane
Powdrell-Culbert for advancing sports
programs for middle and high school girls
under Title IX; and Curtis Boyd, M.D., for
advancing women’s reproductive rights. To
R.S.V.P. (required by March 23) or learn
more about sponsorship opportunities,
visit www.swwomenslaw.org.
Submit
announcements
for publication in
the Bar Bulletin to
notices@nmbar.or
g
by noon Monday
the week prior
to publication.
Limited License Legal Technician
May Be in New Mexico’s Future
By D.D. Wolohan
William Slease, director of the Disciplinary Board, told members of the
Albuquerque Bar Association that New Mexico can either be proactive
or reactive in a new era of improving access to justice by looking into a
limited license legal technician (LLLT). Slease said at the March 3 luncheon
that there are fewer legal service providers today for low-income clients
in New Mexico—particularly in rural areas—and in an environment of
online services such as RocketLawyer, legalzoom and Cybersettle, which
allows individuals to do their own legal work, a limited yet legally trained
technician may be a good solution for New Mexico. Washington state
recently implemented an LLLT program that will allow trained technicians to practice law on a limited basis. Washington’s first class of LLLTs
graduates this year, Slease said. Just as the medical profession has the
physician’s assistant, nurse practitioner and radiologist assistant, the legal
profession in New Mexico needs to look into this area. The Commission
on the Access to Justice had a lengthy initial discussion on this topic in
January. Information on Washington’s LLLT program is available at wsba.
org/lllt. Slease encourages comments to him at wds@nmdisboard.org;
the Commission on the Access to Justice, aoctrs@nmcourts.gov; or to Liz
McGrath at evmcgrath@pegasuslaw.org.
2015–2016 Bench
& Bar Directory
Update Your Contact
Information by March 27
To verify your current information:
Visit www.nmbar.org. Click on Find
an Attorney and search by name.
To submit changes:
Online:
Visit www.nmbar.org >
for Members >
Change of Address
Mail:
Address Changes, PO Box 92860,
Albuquerque, NM 87199-2860
Fax: 505-828-3765
Email: address@nmbar.org
Kinship/Guardianship CLE
The Volunteer Attorney Program is hosting a CLE
entitled “The Basics of Kinship/Guardianship” from
1:30 pm - 3:30 pm on March 27, 2015 in
Jury Assembly Room 1 at the 3rd Judicial District
Court, 2 0 1 W e s t P i c a c h o A v e . , Las Cruces, NM
88005.
The CLE (2.0 G) will be presented by Larry B. Kronen
of Pegasus Legal Services for Children.
Free for VAP volunteers.
Donations welcome from non-volunteers
($50 or more per person suggested).
If you would like to attend this CLE,
please contact Aja Brooks at (505) 797-6040
or ajab@nmlegalaid.org.
Publication is not guaranteed
for information submitted after
March 27.
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
7
Hearsay
Rodey, Dickason, Sloan, Akin & Robb, PA (Albuquerque)
Chambers USA: America’s Leading Lawyers for Business 2015
Mark K. Adams (environment, natural resources & regulated
industries; water law), Rick Beitler (litigation: medical malpractice & insurance defense), Perry E. Bendicksen III (corporate/
commercial), Henry M. Bohnhoff (litigation: general commercial), David Buchholtz (corporate/commercial), Nelson
Franse (litigation: general commercial; medical malpractice &
insurance defense), Catherine T. Goldberg (real estate), Scott
D. Gordon (labor & employment), Alan Hall (corporate/commercial), Bruce Hall (litigation: general commercial), Justin A.
Horwitz (corporate/commercial), Robert L. Lucero (real estate),
Donald B. Monnheimer (corporate/commercial), Sunny J. Nixon
(environment, natural resources & regulated industries: water
law), Lisa C. Ortega (litigation: general commercial), Theresa W.
Parrish (labor & employment), John N. Patterson (real estate),
John P. Salazar (real estate), Andrew G. Schultz (litigation:
general commercial), Tracy Sprouls (corporate/commercial: tax),
Thomas L. Stahl (labor & employment), Aaron C. Viets (labor &
employment), Charles J. Vigil (labor & employment)
Lisa Tourek Mack has joined the Albuquerque office of Miller Stratvert PA as
Of Counsel. She has more than 20 years’
experience in workers’ compensation. Mack
attended Michigan State University (B.A.,
Criminal Justice) and the University of
Denver, Colorado (J.D.).
Keith Mier
University of New Mexico School of Law
Professor Emerita Margaret Montoya is
an honoree in the Harvard Law School 2nd
Annual International Women’s Day Portrait
Exhibit. The exhibit featuring inspiring
women working in the fields of law was on
display in early March. Montoya’s scholarship appears in law reviews, anthologies and
casebooks and is used in many high school,
undergraduate, graduate and law school
courses throughout the United States. Her
Margaret Montoya
best-known article, “Mascaras, Trenzas y
Greñas: Un/Masking the Self While Un/Braiding Latina Stories
and Legal Discourse,” connects autobiographical narratives with
legal analysis and focuses on resisting the cultural assimilation
that often comes with higher education.
The latest book by Bill Piatt, Catholic Legal
Perspectives (Second Edition), has just been
published by the Carolina Academic Press.
Piatt is working under contract for his next
book, Human Trafficking.
Lisa Tourek Mack
Bob Matteucci of Atkinson & Kelsey, PA,
has been certified as a Family Law Specialist
in New Mexico. Before starting a career in
family law, Matteucci owned the popular
Albuquerque shoe business, Shoes on a
Shoestring. He sold the business in 2003 to
focus on his family and return to school for
a law degree. Matteucci attended the University of New Mexico (B.A, history; J.D., 2008)
and Tulane University (M.B.A., Finance).
Bob Matteucci
8
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
Keith Mier, of Sutin, Thayer & Browne,
was selected to join the State Bar of New
Mexico Commission on Professionalism. A
Santa Fe native, Mier joined the Sutin firm
in 2014 and practices law in Albuquerque
and Santa Fe, primarily in the areas of labor
and employment law, healthcare law and
commercial litigation. Mier played varsity
basketball and football for Capital High
School in Santa Fe in the ’90s, lettered in
varsity football for the U.S. Naval Academy
and retired from the U.S. Navy in 2007 as a
highly decorated officer.
Bill Piatt
In Memoriam
Randall Matthew Harris was born Jan. 23, 1961, in Fremont,
Neb., to Robert and Suzy Harris. When he was young, the family
moved Harris and his brothers, Mike and Ronnie, to Summerfield,
Texas, where the boys attended school. In 1984, the Harris family
moved to Clovis. Randall attended Eastern New Mexico University, where he walked on to play football for the Greyhounds,
which was one of his proudest achievements. He would be the
first to tell you that in his collegiate football career he was never
the biggest, fastest, or strongest, but he had “a heart the size of
the entire defensive line.” He completed his undergraduate studies
and received his bachelor’s degree in Business Administration and
Finance. After graduation, he moved to Oklahoma to attend the
University of Tulsa College of Law, where he graduated with his
Juris Doctorate in 1988. Randy returned to the Clovis/Portales
area where he worked for several local attorneys, including Harry
Patton, Michael Garrett, and Doerr and Knudson, before becoming an assistant district attorney in Portales. In 1990 he decided
to run for the office of the district attorney and, at 28, was elected
the youngest ever DA in the state. In 2002, after 12 years as DA,
Harris resigned to become what he referred to as “a real lawyer.”
He quickly opened his own practice, Harris Law Firm, where he
took pride in defending the community and was quick to brag
about his staff and called them some of his best friends. Harris was
a firm supporter in the community, donating countless hours of
his time to several non-profit organizations. He was willing and
proud to serve on many boards, as well as chair and attend annual
fund raising events. He played a significant role in the foundation
of certain organizations, such as the Shelter for Victims of Domestic Violence, which is now known as The Hartley House. Ryan
Matthew and Lindsay Elizabeth made Randy a proud father from
the moment they were born. When he was not at sporting events
and competitions for his children, Harris enjoyed spending time
with his family on the water, boating, fishing, and scuba diving or
at the golf course. He also had a passion for dirt track racing, sky
diving, and traveling. His favorite vacation spot was Maui. Harris
will be remembered for his big smile, gracious attitude, respect for
others, but most of all, for his generosity. He never met a stranger;
he always welcomed others with a smile and firm handshake or
a warm hug, and the occasional fist bump. He never hesitated to
help whomever he could. He made an impression on everyone
he met, and a true impact on those who he was proud to call his
family and friends. A close friend describes Randy best by saying,
“He is passionate, hard-working, and fiercely loyal, whether he is
representing the state, a client, or simply just being a friend. There
was not a middle ground with Randy, he poured his heart and
soul into it and was not only a force to be reckoned with, but the
one person you wanted in your corner.” Survivors include his son,
Ryan M. Harris of Clovis; daughter, Lindsay E. Harris of Lubbock;
Ronne Mark (Dana) Harris of Clovis; and mother of his children,
Traci Harris of Lubbock. He was preceded in death by his parents,
Robert and Sue Harris; and brother, Robert Michael Harris.
Robert Alexander McKay, a resident of Albuquerque since 1955,
died on Jan. 20. McKay was born in Laramie, Wyo., on July 7, 1925,
the son of Earl Alexander and Mary Irene McKay. Following his
service in the U.S. Navy during World War II, McKay received a
B.A. and J.D. from the University of Wyoming. As a Navy Reservist during the Korean War, McKay was recalled to active duty in
1951 and served in the U.S. Air Force Judge Advocate General’s
Department. Following his active duty he remained an officer in
the U.S. Air Force Reserves, retiring at the grade of Major. McKay’s
civilian career began in 1955 in Albuquerque as an attorney
with the Atomic Energy Commission and upon his retirement,
he was supervisory general attorney and assistant chief counsel,
Albuquerque operations office, Department of Energy. McKay
was preceded in death by his beloved wife of 64 years, Isabel
Sandra McKay; parents; and sister, Dorothy June Hitchcock. He
is survived by his sister, Mary Margaret McKay; daughter, Cathy
Sorenson and husband Duane, and their daughter, Amy Gee, and
husband, McKay, and their son, Easton; son, Brian A. McKay; son,
Scott R. McKay, and his wife, Gina, and their children, Shelley
and Sandra Keeton; Matthew McKay and wife, Megan, and their
daughter, Sophie Rose; Crystal Lane and husband, Jace, and their
sons, Casyn and McKay Christian.
Leda Merle Silver, Nee Soffran, a longtime Santa Fe resident,
died at home in San Francisco on Jan. 4. Silver was born in Los
Angeles on Sept. 12, 1946, the only child of the late Irving G. and
Sara (Babs) Soffran. She graduated from Fairfax High School
and was a proud alumna of Mills College, receiving her teaching
credential from the University of California, Los Angeles. At the
age of 50, after raising four children, she earned her juris doctorate
from the University of New Mexico School of Law. Silver was an
award-winning author of several books, a contributor to national
publications, and penned The Silver Lining column which ran in
the Albuquerque Journal North and the Santa Fe Reporter newspapers. She was a witty writer, a devoted teacher, a prudent advocate
and mediator as attorney-at-law, a world traveler, a raconteuse,
and a consummate hostess. Silver is survived by her husband,
Richard; son Damon, his fiancee Jennifer, and grandson Samuel;
son Brent; daughter Amanda, her wife Robin, and grandson
Isidor; daughter Callie, her husband Dale, and grandsons Gavriel,
Oisin, and Kessler; and extended family and lifelong friends. She
loved spending time in Hawaii and embodied the aloha spirit.
Gilbert Jose Vigil, born in Martineztown in Albuquerque on
Oct. 21, 1950, died on Feb. 9. As an attorney, Gilbert served the
disadvantaged and was a zealous advocate for civil rights. Gilbert
is survived by five siblings, children Christina, Martin, Lisa and
Jenny; and four beautiful grandchildren. He also mentored, loved
and raised countless others like his own family.
Editor’s Note: The contents of Hearsay and In Memoriam are submitted by members or derived from news clippings. Send announcements to notices@nmbar.org.
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
9
Legal Education
March
18
Fundamentals of Securities Law,
Part 2
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24
Mock Meeting of the Ethics
Advisory Committee (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Fire in the Hole: What’s Exploding
in New Mexico Mining Law (2014)
5.5 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
20
The Impact of the Legal System on
People of Color
5.5 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24-25 Sub-leasing & Assignments,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
Ethics for Transactional Lawyers
23
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
26
2015 Solo and Small Firm Institute:
Law Practice Management
3.0 G, 4.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
27
30
24
Internet Investigative/Legal
Research on a Budget and Legal
Tech Tips (2014)
6.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24
Medical Malpractice Review Before
the New Mexico Medical Review
Commission (2014)
2.0 G, 3.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Nonprofit Corporations
Compliance (2014)
3.5 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24
10
2015’s Best Law Office Technology,
Software and Tools—Improve
Client Service, Increase Speed and
Lower Your Costs
4.8 G, 1.2 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
27–28 Trial Skills College
14.5 G
Albuquerque
New Mexico Criminal Defense
Lawyers Association
505-992-0050
www.nmcdla.org
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
30
2014 Intellectual Property Law
Institute
5.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
How to Become a Rock Star Lawyer,
the Ethical Way (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
VAWA 2013 and Tribal Jurisdiction
Over Crimes of Domestic Violence
(2014)
3.2 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
31
Exempt v. Non-exempt: Overtime
& Employer Liability in the
Workplace
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Legal Education
www.nmbar.org
April
1
Innocent & Injured Spouse
Defenses to Joint Tax Liability
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
7
Drafting Reps and Warranties in
Business Transactions
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Federal Practice CLE Seminar
10
6.0 G
Albuquerque
New Mexico Criminal Defense
Lawyers Association 6.0 G
505-992-0050
www.nmcdla.org
Skeptically Determining the Limits
of Scientific Evidence V (2014)
5.0 G, 1.5 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
14
14
Navigating the Privileges Minefield
(2014)
5.5 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
14
Construction Lien Law in New
Mexico (2014)
3.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
14
The End of Law Firms: How the
Cloud is Changing the Practice of
Law and The ABA Model Rules with
Regard to the Changing Practice of
Law (2014 Annual Meeting)
1.0 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
14
Homeowner Agreements for
Developers & Project Owners
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
15–16 Asset Purchase Deals, Parts 1–2
2.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17
Ethics & Digital Communications
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
21
Drafting Settlement Agreements in
Litigation
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
The Brain-Smart Negotiator: Skills
and Practices for the Effective
Litigator
4.8 G, 1.2 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24
28
New Mexico Administrative Law
Institute 2014
4.2 G, 2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
28
Accounting for Lawyers (2014)
6.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
28
Practice Management, the Cloud,
and Your Firm (Online Practice
Management Strategies 2014)
3.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
28
Establishing Your Online Presence,
Ethically and Professionally
(Online Practice Management
Strategies 2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
28–29 Eminent Domain, Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Mediating in Courts of Limited
Jurisdiction—Are You Part of the
Solution or Part of the Problem?
1.0 G
Live Seminar and Telecast
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
11
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 March 6, 2015
Petitions for Writ of Certiorari Filed and Pending:
No. 35,154
No. 35,152
No. 35,151
No. 35,150
No. 35,148
No. 35,146
No. 35,145
No. 35,144
No. 35,091
No. 35,139
No. 35,116
No. 35,147
No. 35,135
No. 35,134
No. 35,132
No. 35,131
No. 35,130
No. 35,129
No. 35,127
No. 35,126
No. 35,125
No. 35,124
No. 35,122
No. 35,121
No. 35,120
No. 35,115
No. 35,114
No. 35,119
No. 35,118
No. 35,113
No. 35,106
No. 35,105
No. 35,108
No. 35,101
No. 35,097
No. 35,098
No. 35,084
No. 35,050
No. 35,046
No. 35,040
No. 35,037
No. 35,099
12
Date Petition Filed
State v. Albert
COA 33,083 03/06/15
Arellano v.
N.M. Dept. of Health
COA 34,062 03/06/15
State v. Foust
COA 34,060/34,074 03/04/15
State v. Kerry K.
COA 33,341 03/04/15
El Castillo Retirement Residences v.
COA 31,701 03/02/15
Martinez
State v. Elliot
COA 32,787 03/02/15
State v. Benally
COA 31,972 03/02/15
State v. Ridley
COA 33,895 03/02/15
Lopez v. Tapia
12-501 03/02/15
State v. Sutton
COA 33,643 02/26/15
State v. Martinez
COA 32,516 02/25/15
Orduno v. Tierney
COA 34,019 02/23/15
State v. McBride
COA 34,013 02/23/15
State v. Hall
COA 33,953 02/20/15
Bank of New York v.
COA 34,041 02/20/15
Singh
Einer v. Rivera
COA 33,362 02/20/15
Progressive Ins. v. Vigil COA 32,171 02/19/15
Response filed 3/6/15
State v. Ramos
COA 33,969 02/17/15
State v. Amy B.
COA 33,469 02/16/15
State v. Leslie K.
COA 33,562 02/16/15
State v. Castro
COA 33,886 02/16/15
State v. Valenzuela
COA 33,868 02/16/15
Lente v. State
12-501 02/13/15
State v. Chakerian
COA 32,872 02/13/15
State v. DeLao
COA 33,870 02/10/15
State v. Garcia
COA 33,796 02/10/15
State v. Duran
COA 33,862 02/10/15
Lester v. Lester
COA 33,926 02/09/15
City of Albuquerque v.
COA 33,261 02/09/15
Lester
State v. Padilla
COA 33,887 02/09/15
Salomon v. Franco
12-501 02/04/15
Pena-Kues v.
COA 32,790 02/03/15
Smith’s Food & Drug
Pena-Kues v.
COA 32,790 01/30/15
Smith’s Food & Drug
Dalton v. Santander
COA 33,136 01/28/15
Marrah v. Swisstack
12-501 01/26/15
Torres v. Hatch
12-501 01/23/15
Branch v. State
12-501 01/16/15
State v.
COA 32,110/32,109 12/22/14
Hernandez
Response ordered; filed 2/27/15
Ramirez v. Ortiz
12-501 12/15/14
Montoya v. Wrigley
12-501 12/15/14
Graham v. Hatch
12-501 12/15/14
Keller v. Horton
12-501 12/11/14
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
No. 35,068
No. 34,949
No. 34,937
No. 34,932
No. 34,881
No. 34,913
No. 34,907
No. 34,885
No. 34,878
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. 34,589
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Jessen v. Franco
12-501
State v. Chacon
COA 33,748
Response filed 10/31/14
Pittman v.
12-501
N.M. Corrections Dept.
Gonzales v. Sanchez
12-501
Paz v. Horton
12-501
Finnell v. Horton
12-501
Response ordered; due 4/2/15
Cantone v. Franco
12-501
Savage v. State
12-501
O’Neill v. Bravo
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
Response ordered; due 3/15/15
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
Response ordered; due 3/15/15
Holguin v. Franco
12-501
Camacho v. Sanchez
12-501
Wetson v. Nance
12-501
Response ordered; filed 7/14/14
Seager v. State
12-501
Response ordered; filed 2/18/15
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
11/25/14
10/27/14
10/20/14
10/16/14
10/08/14
09/22/14
09/11/14
09/08/14
08/26/14
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
04/23/14
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
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
Writs of Certiorari
No. 34,274
No. 34,400
No. 34,443
No. 34,522
No. 34,582
No. 34,637
No. 34,694
No. 34,669
No. 34,650
No. 34,630
No. 34,789
No. 34,769
No. 34,786
No. 34,784
No. 34,805
No. 34,843
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
No. 34,997
No. 34,993
No. 34,978
No. 34,946
No. 34,945
No. 34,940
No. 34,929
No. 35,063
No. 35,035
No. 35,029
No. 35,016
No. 35,005
No. 34,974
No. 34,995
No. 35,069
No. 35,049
State v. Nolen
12-501
State v. Armijo
COA 32,139
Aragon v. State
12-501
Hobson v. Hatch
12-501
State v. Sanchez
COA 32,862
State v. Serros
COA 31,975
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
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. Lovato
COA 32,361
City of Eunice v. N.M. Taxation
and Revenue Dept.
COA 32,955
Deutsche Bank v.
Johnston
COA 31,503
State v. Vigil
COA 32,166
Rayos v. State
COA 32,911
Martinez v. Bravo
12-501
Ruiz v. Stewart
12-501
State v. Sabeerin COA 31,412/31,895
State v. Yazzie
COA 32,476
State v. Alex S.
COA 32,836
State v. Mier
COA 33,493
State v. Trammel
COA 31,097
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
T.H. McElvain Oil & Gas v.
Benson
COA 32,666
Atherton v. Gopin
COA 32,028
State v. Kuykendall
COA 32,612
State v. Kuykendall
COA 32,612
State v. Flores
COA 32,709
Freeman v. Love
COA 32,542
State v. Carroll
COA 32,909
State v. Stephenson
COA 31,273
State v. Abeyta
COA 33,485
State v. Baca
COA 33,626
State v. Archuleta
COA 32,794
Moses v. Skandera
COA 33,002
State v. Deangelo M.
COA 31,413
Arencon v.
City of Albuquerque
COA 33,196
State v. Surratt
COA 32,881
11/20/13
12/20/13
02/14/14
03/28/14
04/11/14
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
08/15/14
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
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
12/19/14
01/26/15
01/26/15
01/26/15
01/26/15
01/26/15
01/26/15
02/06/15
02/27/15
02/27/15
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
No. 33,548 State v. Marquez
No. 33,808 State v. Nanco
No. 33,862
No. 33,969
State v. Gerardo P.
COA 31,250
Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502
COA 31,421
No. 34,013 Foy v. Austin Capital
No. 34,085 Badilla v. Walmart
COA 31,162
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244
No. 34,093 Cordova v. Cline
COA 30,546
No. 34,194/34,204
King v. Faber
COA 34,116/31,446
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297
No. 34,120 State v. Baca
COA 31,442
No. 34,122 State v. Steven B. consol. w/
State v. Begaye
COA 31,265/32,136
No. 34,499 Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330
No. 34,546 N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026
No. 34,435 State v. Strauch
COA 32,425
COA 32,405
No. 34,447 Loya v. Gutierrez
No. 34,295 Dominguez v. State
12-501
COA 32,335
No. 34,501 Snow v. Warren Power
No. 34,607 Lucero v.
Northland Insurance
COA 32,426
No. 34,554 Miller v.
Bank of America
COA 31,463
No. 34,516 State v. Sanchez
COA 32,994
COA 31,820
No. 34,613 Ramirez v. State
No. 34,548 State v. Davis
COA 28,219
COA 31,982
No. 34,526 State v. Paananen
No. 34,549 State v. Nichols
COA 30,783
COA 31,666
No. 34,798 State v. Maestas
No. 34,834 SF Pacific Trust v.
City of Albuquerque
COA 30,930
08/14/13
08/28/13
09/11/13
10/28/13
11/14/13
12/04/13
12/09/13
01/15/14
02/24/14
03/26/14
03/26/14
08/11/14
08/13/14
08/13/14
08/27/14
08/27/14
09/24/14
10/01/14
10/29/14
11/10/14
12/17/14
12/17/14
01/14/15
01/14/15
02/25/15
03/25/15
03/25/15
Petition for Writ of Certiorari Denied:
No. 35,111
No. 35,109
No. 35,107
No. 35,088
No. 35,086
No. 35,060
No. 35,039
No. 35,020
Date Order Filed
Lea County v.
Markum Ranch
COA 32,510 03/02/15
Valenzuela v. N.M. Dept. of
Workforce Solutions
COA 34,231 03/02/15
State v. Villanueva
COA 34,092 03/02/15
Vine v. State
12-501 03/02/15
Moreno v. Hatch
12-501 03/02/15
Medina v. State
12-501 03/02/15
Ramirez v. Hatch
12-501 03/02/15
Castillo v. Hatch
12-501 03/02/15
Submission Date
COA 30,565 04/15/13
COA 30,788 08/14/13
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Effective March 6, 2015
Published Opinions
No. 32338 2nd Jud Dist Bernalillo CV-09-7967, J MAYER v M JONES (reverse and remand)
3/2/2015
No. 33263 1st Jud Dist Santa Fe CV-10-3358, R MACLAURIN v DEUTSCHE BANK (affirm)
3/4/2015
No. 32549 1st Jud Dist Santa Fe CV-10-29, A FIRSTENBERG v R MONRIBOT (affirm)
3/5/2015
Unublished Opinions
No. 33221 12th Jud Dist Otero LR-13-1, STATE v O IZUNDU (affirm)
3/3/2015
No. 33794 11th Jud Dist San Juan CR-13-243, STATE v R GARCIA (affirm)
3/3/2015
No. 33884 3rd Jud Dist Dona Ana CR-11-454, STATE v O GONZALEZ (affirm)
3/3/2015
No. 33193 2nd Jud Dist Bernalillo CR-12-5702, STATE v G GARCIA (reverse)
3/4/2015
No. 34084 2nd Jud Dist Bernalillo CV-12-5504, C PADILLA v BERNALILLO CO SHERIFFS (affirm)
3/4/2015
No. 33128 3rd Jud Dist Dona Ana CR-13-304, STATE v L CAMPBELL (reverse)
3/5/2015
No. 33663 12th Jud Dist Otero CR-12-180, STATE v W HUNTER (affirm)
3/5/2015
No. 34214 2nd Jud Dist Bernalillo CR-13-4037, STATE v J BOULDIN (reverse)
3/5/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
14
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
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 March 18, 2015
Pending Proposed Rule Changes
Open for Comment:
Recently Approved Rule Changes
Since Release of 2014 NMRA:
Effective Date
Comment Deadline
Please see the special summary of proposed rule amendments published in the March 18, 2015 (Vol. 54, No. 11) issue of the Bar Bulletin.
The actual text of the proposed rule amendments can be viewed on
the Supreme Court’s website at the address noted below. The comment
deadline for those proposed rule amendments is April 15, 2015.
Recently Approved Rule Changes Since
Release of 2014 NMRA:
Comment Deadline
For 2014 year-end rule amendments that became effective December
31, 2014, please see the November 5, 2014 (Vol. 53, No. 45) issue of
the Bar Bulletin or visit the New Mexico Compilation Commission’s
website at http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx.
Children’s Court Rules and Forms
10-102
10-315
10-317
10-323
10-343
10-501A
10-565
10-566
10-567
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
Adjudicatory hearing; time limits;
continuances.07/01/14
Abuse and neglect party information sheet. 08/31/14
Advance notice of change of placement.
08/31/14
Emergency notice of change of placement. 08/31/14
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.
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
15
Rules/Orders
From the New Mexico Supreme Court
Notice of Publication for Comment
Proposed Amendments to Supreme Court Rules
of Practice and Procedure
In accordance with the Supreme Court’s new annual rulemaking process under Rule 23-106 NMRA, which includes an annual
publication of proposed rule amendments for public comment
every spring, the following Supreme Court Committees are
considering whether to recommend for the Supreme Court’s
consideration proposed amendments to the rules of practice
and procedure summarized below. If you would like to view
the proposed amendments summarized below before they are
submitted to the Court for final consideration, you may do so by
visiting the Supreme Court’s web site at http://nmsupremecourt.
nmcourts.gov. Your comments can be submitted electronically
through the Court’s website, by email to nmsupremecourtclerk@
nmcourts.gov, by fax to 505-827-4837, or by mail to
Joey D. Moya, Clerk
New Mexico Supreme Court
P.O. Box 848
Santa Fe, New Mexico 87504-0848
Your comments must be received by the Clerk on or before
April 15, 2015, to be considered by the Court. Please note that
any submitted comments may be posted on the Supreme Court’s
website for public viewing.
________________________________
Alternative Dispute Resolution Commission
Proposal 1 - Court-Connected Mediation Services
[New Rules 29-101, 29-102, 29-103 and 29-104 NMRA]
In October 2012, the Alternative Dispute Resolution Commission published for comment proposed new rules to govern courtconnected mediation services in New Mexico’s state courts. In
response to the comments received in response the first proposal,
the Alternative Dispute Resolution Commission now proposes
a revised set of proposed new rules that seek to simplify, clarify,
and consolidate the proposal into fewer rules with an emphasis
on developing a structure for court-connected mediation services
that emphasizes the ability of each court to address local issues.
Board of Bar Commissioners
Proposal 2 - Inactive and Withdrawn Attorneys
[Rules 24-102, 17-202, and 15-302 NMRA]
The Board of Bar Commissioners propose revisions to Rule
24-102 NMRA to revise and clarify the procedure attorneys must
follow when going inactive, withdrawing from the bar, or seeking
reinstatement or readmission after doing so. The proposal was
developed in conjunction with the Board of Bar Examiners and
Disciplinary Board, who are proposing coordinating amendments
to their respective Rules 15-302 and 17-202 NMRA.
Children’s Court Rules Committee
Proposal 3 - Appointment of Educational Decision Maker
[New Rule 10-316 NMRA]
The Children’s Court Rules Committee proposes adopting new
Rule 10-316 NMRA to govern the appointment of an educational
16
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
decision maker in abuse and neglect cases. The proposed rule
requires the appointment of an educational decision maker in
every case and sets forth procedures and standards for doing so.
Proposal 4 - Conduct of Hearings in Abuse and Neglect Cases
[New Rule 10-323 NMRA]
The Children’s Court Rules Committee proposes adopting new
Rule 10-323 NMRA to govern the conduct of hearings in abuse
and neglect cases. The proposed rule sets forth definitions and
standards to assist the court with determining who may attend
hearings, which are closed to the “general public” under the rule
and NMSA 1978, Section 32A-4-20.
Code of Judicial Conduct Committee
Proposal 5 - Prefatory Sections (Preamble, Terminology, and
Application) and Related Provisions
[Rules 21-001, 21-003, 21-004, 21-310 and 21-405 NMRA]
The Code of Judicial Conduct Committee published for comment
in March of 2014 proposed amendments to the Prefatory sections
of the Code. Since publication, the committee has drafted revisions to the Preamble, Terminology, and Application sections. The
committee proposes adding a warning to the Preamble for judges
and judicial candidates to proceed cautiously in the use of social
media. The committee proposes removing the meaning of “judge”
from the Application section and placing it in the Terminology
section. In addition to this minor change, the committee proposes
substantial revisions to the Application section. For example, the
proposed Application no longer uses the terms continuing, periodic,
or pro tempore, but expressly names the type of judge to whom the
particular section applies and distinguishes between elected and
non-elected judges. To address comments received about the lobbying restrictions set forth in Rule 21-302 NMRA, the committee
also proposes clarifying in the Application section that non-elected
judges serving by contract or appointment on a part-time basis are
only required to comply with Rule 21-302 while serving as a judge.
Finally, the committee proposes revisions to Rule 21-310 and 21-405
consistent with revisions to the Application section, and proposes
clarifying in Rule 21-310 that a judge is not only prohibited from
serving as a family member’s lawyer, but is also prohibited from
serving as a family member’s representative or agent.
Proposal 6 - Disqualification
[Rule 21-211 NMRA]
The Code of Judicial Conduct Committee proposes amending
Comment 5 of Rule 21-211 to address an apparent conflict with
Rules 1-088(C), 5-105(C), and 10-161(C), which call for automatic
recusal of a judge when an employee of the court is a party to a
proceeding (unless there is written agreement of the parties). The
committee proposes adding an additional sentence to the comment
clarifying that specific rules of procedure may dictate automatic
recusal, but in the absence of a rule, the comment shall apply.
Proposal 7 - Extrajudicial Compensation, Expense Reimbursement, and Reporting
Rule 21-315 NMRA]
The Code of Judicial Conduct Committee published for comment in March of 2014 proposed amendments to Rule 21-315
regarding the reporting of extrajudicial compensation and expense
reimbursement. Since publication, the committee has drafted
proposed revisions to the rule. First, the committee proposes re-
Rules/Orders
instating the requirement set forth in Paragraph (D) of the current
rule that reports “shall be filed . . . in the office of the clerk of the
court on which the judge serves or other office designated by law,”
rather than changing the filing location to the Supreme Court. The
committee recognizes that judges have been trained to file reports
in this manner and the system appears to be working well. Second,
Paragraph (A)(2) of the rule currently requires the reporting of
reimbursement of expenses and waiver of fees unless the amount
of reimbursement or waiver does not exceed five hundred dollars
($500.00). The committee unintentionally removed this provision
from the draft that was previously published for comment, and
now proposes that such language be reinstated.
Proposal 8 - Political and Campaign Activities
[Rules 21-400, 21-401, 21-402, and 21-403 NMRA]
The Code of Judicial Conduct Committee proposes changes to
Rule 21-402 NMRA (Political and campaign activity of judicial candidates) and to the commentary of Rules 21-400 (Canon 4), 21-401
(Political activity for judges), and 21-403 (Activities of candidates for
appointive judicial office). The committee proposes revisions clarifying that Rule 21-401 applies to judges, while Rule 21-402 applies to
judicial candidates. And, the committee proposes the inclusion of
references to the appropriate rules where needed. Changes to the
commentary to the other rules stem from these revisions. Finally,
the committee proposes striking the reference to the “Fair Judicial
Elections Committee of the State Bar” in Comment 13 to Rule 21-402
because it is the committee’s understanding that a judicial candidate
no longer has recourse to the complaint procedures of that committee,
and that the better course of action is through Rule 21-406 NMRA.
Proposal 9 - Campaign Committees
[Rule 21-404 NMRA]
The Code of Judicial Conduct Committee proposes that Rule 21404 be amended to explicitly state that candidates may personally
solicit contributions from persons who, if parties in cases before the
judge, would require the judge’s disqualification under Rule 21-211
NMRA. Likewise, the committee proposes a revision to Comment 1
of Rule 21-404 in this regard, that allows a candidate to personally
solicit contributions from family members and close friends, for
whom recusal would be required. The commentary makes clear,
however, that all contributions must be paid to the campaign committee. The candidate shall not personally accept the contributions.
Proposal 10 - Violations
[Rule 21-406 NMRA]
The Code of Judicial Conduct Committee published for
comment in March of 2014 proposed amendments to Rule 21406 regarding violations. The committee stands by this rule as
previously published but now proposes a couple of additional
changes as well. The committee proposes the consistent use of
“judge” rather than “incumbent judge” throughout, and proposes
clarifying that violations of the Code by judges shall be proceeded
upon by the Judicial Standards Commission, while violations by
non-judge candidates shall be proceeded upon by the Disciplinary
Board. The rule was previously silent as to this distinction.
Code of Professional Conduct Committee
Proposal 11 - Outsourcing
[Rule 16-101 NMRA]
The Code of Professional Conduct Committee proposes
amendments to Rule 16-101 to clarify the obligations of a lawyer
who hires outside lawyers to assist in the representation of a client.
These amendments come from ABA Resolution 105C, Comments
6 & 7 to ABA Model Rule 1.1.
Proposal 12 - Limited Entry of Appearance; Opposing Counsel’s
Ethical Duties
[Rules 16-102 and 16-402 NMRA]
The Code of Professional Conduct Committee proposes
changes to Rules 16-102 and 16-402 to clarify the duties of lawyers
when a party to a case is receiving limited scope representation.
The committee proposes setting forth the obligations of both
the limited-scope lawyer and opposing counsel, and suggests
the addition of a new Comment 10 to each rule to address these
obligations. Please note that Rule 16-102 also contains proposed
revisions to address New Mexico’s medical cannabis laws.
Proposal 13 - Fee Agreements in Writing
[Rule 16-105 NMRA]
The Code of Professional Conduct Committee proposes
amendments to Rule 16-105 to require fee agreements to be in
writing. The proposed amendments exempt services provided
as part of a legal fair and services provided under an indigent
representation agreement imposed by the courts.
Proposal 14 - Technology and Client Development
[Rules 16-118, 16-505, 16-701, 16-702, and 16-703 NMRA]
The Code of Professional Conduct Committee proposes
amendments to Rules 16-118, 16-505, 16-701, 16-702, and 16-703
to incorporate provisions of ABA Resolution 105B pertaining to
the use of technology and client development. These rules focus
on the formation and nature of the attorney-client relationship. Proposal 15 - Disclosure of Confidential Information; Conflicts
of Interest
[Rule 16-110 NMRA]
The Code of Professional Conduct Committee proposes
amendments to the commentary of Rule 16-110 to provide
guidance to district courts faced with motions to disqualify. The
committee proposes the addition of Comment 7 in response to
the Supreme Court’s request in Mercer v. Reynolds, 2013-NMSC002, ¶ 44 n.2, 292 P.3d 466, to study the best method for a district
court to determine whether an attorney has played a substantial
role in a matter without compromising attorney-client privilege.
Proposal 16 - Medical Cannabis
[Rules 16-102 and 16-804 NMRA]
The Code of Professional Conduct Committee proposes
amendments to Rules 16-102 and 16-804 to clearly state that it
shall not be a violation of the Rules of Professional Conduct for
lawyers to advise and assist clients with activity that is legal under
New Mexico’s medical cannabis laws. Please note that Rule 16102 also contains proposed revisions regarding limited entry of
appearance and opposing counsel’s ethical duties.
Proposal 17 - Special Duties of Prosecutors
[Rule 16-308 NMRA]
The Code of Professional Conduct Committee proposes
amendments to Rule 16-308 to clarify the duties of prosecutors
upon discovery of exculpatory evidence after a conviction. The
committee proposes a modified version of ABA Model Rule 3.8
that only addresses the ethical duty of the prosecutor to disclose
post-conviction exculpatory information, not the required procedure for carrying out that duty.
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
17
Rules/Orders
Proposal 18 - Disciplinary Authority; Choice of Law
[Rule 16-805 NMRA]
The Code of Professional Conduct Committee proposes
amendments to Rule 16-805 to incorporate ABA Resolution
107D relating to choice of law in the exercise of disciplinary authority. The resolution amends Comment 5 to Paragraph (b) of
ABA Model Rule 8.5. New Mexico had not previously adopted
Paragraph B as part of Rule 16-805. The committee proposes the
adoption of Paragraph B and the comments.
Disciplinary Board
Proposal 19 - Informal Admonitions
[Rules 17-106, 17-206, 17-308, 17-315, and 17-316 NMRA]
The Disciplinary Board proposes amendments to the Rules
Governing Discipline to clarify the procedures for the issuance
an informal admonition as a form of attorney discipline and the
process for appealing the imposition of an informal admonition
to the Supreme Court.
Proposal 20 - Restitution
[Rule 17-206 NMRA]
The Disciplinary Board proposes an amendment to Rule 17-206
NMRA to clarify that the Board may only recommend that an
attorney pay restitution as part of a recommended discipline and
to confirm that only the Supreme Court may order an attorney
to pay restitution within the context of a disciplinary proceeding.
Proposal 21 - Reciprocal Discipline
[Rule 17-210 NMRA]
The Disciplinary Board proposes an amendment to Rule 17-210
NMRA to make the process more efficient when the Board or
attorney seeks to modify the type of discipline imposed within a
reciprocal discipline proceeding.
Proposal 22 - Administrative Practice by Non-Attorneys and Former Attorneys
[Rule 17-212 and 17B-009 NMRA]
The Disciplinary Board proposes amendments to the Rules
Governing Discipline and the Rules Governing the Unauthorized
Practice of Law to clarify the extent to which non-attorneys and
disbarred and suspended attorneys may represent parties in state
or local administrative agencies.
Proposal 23 - Protection from Compelled Testimony
[Rule 17-304 NMRA]
The Disciplinary Board proposes an amendment to Rule 17-304
NMRA to protect disciplinary officials from being compelled to
testify in collateral proceedings regarding matters investigated or
considered within their official disciplinary capacity.
Proposal 24 - Submission of Proposed Findings to Hearing Committees
[Rule 17-313 NMRA]
The Disciplinary Board proposes an amendment to Rule 17-313
NMRA to conform the procedure in the rule to the current practice for submitting proposed findings to hearing committees of
the Disciplinary Board.
18
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
Proposal 25 - Board Ordered Probation
[Rules 17-315 and 17-316 NMRA]
The Disciplinary Board proposes amendments to Rules 17-315
and 17-316 NMRA to clarify the authority of the Board to order
probation as a condition of an informal admonition or formal
reprimand and to clarify the manner in which an attorney may
appeal the order of probation.
Joint Committee on Rules of Procedure
Proposal 26 - Criminal Contempt Proceedings in District Court
[Rules 1-093 and 5-112 NMRA]
The Joint Committee on Rules of Procedure proposes comprehensive rules governing criminal contempt of court proceedings in the
district courts. Because a criminal contempt proceeding can arise
from conduct occurring within either a civil action or a criminal
action, the Supreme Court is considering similar rules for inclusion
in the Rules of Civil Procedure for the District Courts, see Rule 1093
NMRA, and the Rules of Criminal Procedure for the District Courts,
see Rule 5-112 NMRA. Proposed criminal contempt rules were published for comment once before in 2010, prior to the issuance of the
Supreme Court’s opinion in Concha v. Sanchez, 2011-NMSC-031,
150 N.M. 268, 258 P.3d 1060. After the Concha opinion was filed,
the committee revisited the proposal that was previously published
for comment and sought to make revisions that would be consistent
with the opinion and responsive to the comments received in 2010.
Metropolitan Courts Rules Committee and Rules for Courts of
Limited Jurisdiction Committee
Because the rules of procedure for the magistrate, metropolitan,
and municipal courts often overlap, the proposals from the Metropolitan Courts Rules Committee and the Rules for Courts of
Limited Jurisdiction Committee are summarized together in this
section. In some instances, the committees are submitting joint
proposals for the Supreme Court’s consideration that would amend
similar rules in similar ways. In other instances, only one committee is proposing amendments to its own particular set of rules.
Proposal 27 - Judge Designation in Magistrate Court
[Rules 2-105 and 6-105 NMRA]
The Rules for Courts of Limited Jurisdiction Committee proposes
amendments to the rules governing assignment and designation
of judges in magistrate court, Rules 2105 and 6105 NMRA. The
proposed revisions reflect the actual practice that the district
court follows to designate an outofdistrict judge. For consistency
between the civil procedure rules and the criminal procedure
rules, the committee also proposes the addition of a joint recusal
provision to Rule 2105(B)(1)(a), to mirror the provision in Rule
6105(B)(1)(a).
Proposal 28 - Presence of the Defendant for Entry of a Guilty or
No Contest Plea
[Rules 6-109, 7-109, and 8-108 NMRA; and new Form 9-104C
NMRA]
The Supreme Court is considering amendments to the rules governing the presence of the defendant in magistrate, metropolitan,
and municipal courts, Rules 6109, 7-109, and 8108 NMRA, and a
new Waiver of Appearance form, Form 9104C. The proposed amendments provide that a criminal defendant in magistrate, metropolitan,
Rules/Orders
or municipal court cannot waive his or her appearance in court for
the entry of a guilty or no contest plea. Instead, the court must hold
a hearing, which may include a telephonic or video hearing under
Rules 6-110A, 7-110A, or 8-109A NMRA, and the court must give
the defendant the appropriate plea colloquy and ensure that the plea
is voluntary as set forth in Rules 6-502, 7-502, and 8-502 NMRA.
These requirements would not apply to cases that may be resolved
without a hearing under Rules 6503, 7-503, and 8503 NMRA.
Proposal 29 - Issuance of Summons Upon Docketing of Criminal
Action
[Rules 6-204, 7-204, and 8-203 NMRA]
The Metropolitan Courts Rules Committee and the Rules for
Courts of Limited Jurisdiction Committee propose amendments
to the rules governing the issuance of criminal summons, Rules
6204, 7-204, and 8203 NMRA. Currently, the rules require a showing of probable cause for the issuance of a criminal summons. The
proposed revisions would permit the magistrate, metropolitan,
and municipal courts to issue a criminal summons upon the docketing of a criminal action without a showing of probable cause,
as is allowed under Rule 5208 NMRA of the Rules of Criminal
Procedure for the District Courts.
Proposal 30 - Bench Warrant for Failure to Pay Fines and Fees
[Rules 6-207, 7-207, and 8-206 NMRA]
The Metropolitan Courts Rules Committee and the Rules for
Courts of Limited Jurisdiction Committee propose amendments
to the rules governing the issuance of bench warrants for failure to
pay fines and fees in the magistrate, metropolitan, and municipal
courts, Rules 6207, 7-207, and 8206 NMRA. Although the committees propose slightly different revisions for each of these three rules,
the proposed revisions to all three rules would require the courts
to issue either a summons or an order to show cause prior to the
issuance of any bench warrant for failure to pay fines and fees.
Proposal 31 - Discovery in Criminal Cases in Magistrate and
Municipal Courts
[Rules 6-504 and 8-504 NMRA]
The Rules for Courts of Limited Jurisdiction Committee
proposes amendments to the discovery rules for magistrate and
municipal courts, Rules 6504 and 8504 NMRA. The proposed
revisions to the magistrate court rule are intended to speed up
the discovery process by counting discovery deadlines forward
from the date of arraignment, rather than backward from the date
of trial. The committee also proposes to add a new sentence to
Paragraph D of both the magistrate and municipal court rules to
alert the parties that they may request a subpoena from the court
for a witness interview if good faith efforts to secure a witness
interview without a subpoena have been unsuccessful.
Proposal 32 - Excusal of Pro Tem Judges in Metropolitan Court
[Rules 7-105 and 7-106 NMRA]
The Metropolitan Courts Rules Committee proposes amendments to Rules 7-105 and 7-106 NMRA to clarify that parties are
permitted to excuse a pro tem metropolitan court judge who has
been appointed by the Chief Metropolitan Court Judge.
Proposal 33 - Subpoena Service in Criminal Cases in Metropolitan Court
[Rule 7-606 NMRA]
The Metropolitan Courts Rules Committee proposes amendments to the rule governing subpoenas in the Metropolitan Court,
Rule 7606 NMRA, to emphasize that notice of any subpoena
must be timely served on all parties in the case. This includes any
subpoena that is served on a police officer’s onsite supervisor or
designated representative under Subparagraph (B)(3) of the rule.
Proposal 34 - Forms for Appointment of Contract Defense
Counsel
[Form 9-403A and new Form 9-403B NMRA]
The Rules for Courts of Limited Jurisdiction Committee
proposes a new form for the appointment of contract defense
counsel, Form 9403B NMRA. The form is intended to be used in
municipal courts and in magistrate court districts where the Law
Offices of the Public Defender does not have a physical office and
relies on contract defense counsel. The Committee also proposes
minor technical revisions to existing Form 9403A. Specifically,
Form 9403A should be revised to refer to the “Law Offices of the
Public Defender” instead of the “Public Defender Department.”
Proposal 35 - Form for Waiver of Arraignment in Magistrate
Court
[New Form 9-405B NMRA]
The Rules for Courts of Limited Jurisdiction Committee proposes
a new Waiver of Arraignment form, Form 9405B NMRA, to be used
in cases within magistrate and municipal court trial jurisdiction. The
rules governing arraignments and first appearances in magistrate
and municipal courts provide that the defendant may, with prior
approval of the court, file a written waiver of arraignment, and that
such waiver “shall be substantially in the form approved by the
Supreme Court.” Rules 6501(C) and 8501(C) NMRA. The Committee drafted this new, proposed form because there is no Supreme
Court approved form for waiving arraignment in cases within the
trial jurisdiction of the magistrate and municipal courts. Cf. Form
9405 NMRA (waiver of arraignment form for use in district court);
Form 9405A NMRA (waiver of first appearance form for cases not
within magistrate or metropolitan court jurisdiction).
Peremptory Excusal Rule
Proposal 36 - Peremptory Excusal Rule for Civil Cases in District
Court
[Rule 1-088.1 NMRA]
In September 2013, the Supreme Court published for comment
a number of proposed amendments aimed at addressing problems
in the administration of justice caused by the abusive exercise of the
peremptory excusal rule in some cases. After an extensive period of
reviewing comments for and against the proposals from members
of the bench, bar, and public, the Court has withdrawn the previous
proposals and is now publishing for comment a more narrowly tailored proposal intended to address only the most serious abuses of the
peremptory excusal rule. The current proposal is focused solely on
district court civil cases but may serve as a model for future revisions
to the peremptory excusal rules for other case types as informed by
the comments received in response to the publication of this proposal.
Rules of Appellate Procedure
Proposal 37 - Election Contest Appeals
[Rule 12-603 NMRA]
The Supreme Court is considering amendments to Rule 12-603
NMRA to expedite the process for pursuing an election contest appeal
to the Supreme Court. The proposed amendments would simplify
the pleadings an appellant must file to initiate an appeal and shorten
the time for starting the appellate process so that there is more time
for the Court to hear and resolve these time-sensitive appeals.
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
19
Rules/Orders
Rules of Civil Procedure for the District Courts, Magistrate
Courts, and Metropolitan Courts for Consumer Debt Litigation
In 2013, the New Mexico Attorney General’s Office asked
the Supreme Court to consider proposed rule amendments
to address default judgments in consumer debt litigation. The
proposal contemplated amendments to the civil procedure rules
for the district, magistrate, and metropolitan courts, and would
have created additional pleading requirements as a condition
precedent to the award of a default judgment. In 2014, the
Supreme Court published the proposal for public comment to
aid the committee review process. The Supreme Court received
thirty-nine (39) comments, which were forwarded to the Rules
of Civil Procedure for the District Courts Committee, the Metropolitan Courts Rules Committee, and the Rules for Courts of
Limited Jurisdiction Committee. The committees have reviewed
the comments received and have drafted two different proposals
in response to the initial proposal submitted by the Attorney
General’s Office.
Proposal 38 - Consumer Debt Litigation in District Courts
[Rules 1-009, 1-017, 1-055, and 1-060; and Form 4-226 NMRA]
The Rules of Civil Procedure for the District Courts Committee
proposes amendments to Rules 1-009 (pleading special matters),
1-017 (parties plaintiff and defendant; capacity), 1-055 (default),
and 1-060 (relief from judgment or order); and Form 4-226 (a
new civil complaint form to be used in debt collection cases).
With the help of the Attorney General’s Office, the committee
has tailored new provisions that the committee believes address
many of the concerns expressed by committee members and by
those who submitted comments.
Proposal 39 - Consumer Debt Litigation in Magistrate and
Metropolitan Courts
[Rules 2-702 and 3-702 NMRA; and Form 4-204 NMRA]
The Metropolitan Courts Rules Committee and the Rules for
Courts of Limited Jurisdiction Committee proposes amendments
to the default judgment rules for magistrate and metropolitan
courts, Rules 2702 and 3702 NMRA, and the civil summons form
used in magistrate and metropolitan courts, Form 4204 NMRA.
The committees believe that the proposed revisions to the default
judgment rules and the civil summons form strike a compromise
that addresses both the concerns raised by the Attorney General’s
Office and the comments received on the initial proposal.
Rules of Criminal Procedure for the District Courts Committee
Proposal 40 - Preservation of Biological and Physical Evidence
[Rule 5-117 NMRA]
The Rules of Criminal Procedure for the District Courts Committee proposes to amend Rule 5-117 NMRA (“Record; exhibits.”).
Rule 5-117(D) currently permits court clerks to dispose of exhibits
after the expiration of certain time period following the conclusion of a case. The proposed amendments to Rule 5-117 would
impose the preservation obligations found in NMSA 1978, Section 311A2 (2003) (“Procedures for postconviction consideration
of DNA evidence; requirements.”) on the court for exhibits that
come into its possession as evidence.
Proposal 41 - Petition for Citizen Grand Jury
[New Rule 5-302B NMRA and new Form 9-200 NMRA]
The Rules of Criminal Procedure for the District Courts
Committee proposes the adoption of new Rule 5-302B NMRA
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and new Form 9-200 NMRA in response to the Supreme Court’s
request in Convisser v. Ecoversity, 2013-NMSC-039, ¶ 29, 308
P.3d 125, “to consider recommendations for rules and forms to
assist in implementing the citizen grand jury petition requirements in a way that will ‘secure simplicity in procedure, fairness
in administration and the elimination of unjustifiable expense
and delay.’”
Proposal 42 - Disclosure of Expert Witnesses
[Rules 5-501 and -502 NMRA]
The Rules of Criminal Procedure for the District Courts Committee proposes to amend Rules 5-501 and -502 NMRA pertaining
to disclosure. The rules currently require the parties to submit
witness lists but do not require notification as to which witnesses
will provide expert testimony. The proposed amendments would
require both the prosecution and the defense to indicate which
witnesses will testify as experts and describe the nature of their
testimony.
Proposal 43 - Service of Subpoenas
[New Rule 5-511A NMRA]
The Supreme Court is considering adopting a new Rule 5-511
NMRA pertaining to the notice and service of subpoenas. The
proposed new rule would consolidate the notice and service
requirements for subpoenas and notices of statement into one
rule.
Proposal 44 - Remand Order Following De Novo Appeal
[New Forms 9-621 and -622 NMRA]
The Rules of Criminal Procedure for the District Courts
Committee proposes the adoption of new Forms 9-621 and -622
NMRA. These forms are designed to be used by the district court
in remanding a case to a court of limited jurisdiction after a de
novo appeal. Form 9-622 addresses probation violation appeals
while Form 9-621 addresses all other de novo appeals.
Rules of Evidence Committee
Proposal 45 - Minimum Qualification of Polygraph Examiners
[Rule 11-707 NMRA]
The Rules of Evidence Committee proposes amendments to
Rule 11-707 NMRA, which governs the admissibility of polygraph
examinations. The proposed amendments would replace the rule’s
minimum continuing education requirements for the qualification of polygraph examiners with a general requirement that such
examiners have “a current, active polygraph examiner license, in
good standing, in New Mexico or in another jurisdiction with
licensure standards that are equal to or greater than those in New
Mexico.”
Proposal 46 - Business and Public Records Exceptions to the Rule
Against Hearsay
[Rule 11-803 NMRA]
The Rules of Evidence Committee proposes amendments to
Rule 11-803 NMRA, which sets forth exceptions to the rule against
hearsay. The proposed amendments are limited to Paragraphs 6,
7, and 8, the so-called business records and public records exceptions, and clarify that the opponent of a record’s admissibility has
the burden of showing that the exception does not apply when the
other elements of the exception have been met. The committee is
also proposing other amendments to the rule that are intended
to be stylistic only.
Rules/Orders
Uniform Jury Instructions - Civil Committee
Proposal 47 - Contract Damages
[UJI 13-843 NMRA and new UJI 13-843A]
The Uniform Jury Instructions - Civil Committee proposes
to amend UJI 13-843 NMRA (“Contracts; measure of damages;
general instruction.”) and adopt new UJI 13-1843A NMRA in
light of Sunnyland Farms, Inc. v. Cent. N.M. Elec. Coop., Inc., 2013NMSC-017, 301 P.3d 387. In Sunnyland, the New Mexico Supreme
Court discussed the distinction between general damages and
consequential damages and elucidated “special circumstances” in
which a party may recover consequential damages in a breach of
contract action. Id. ¶ 16. Current UJI 13-843 contains language
that could be construed as ignoring the distinction between direct
damages, which are available in virtually any contract case, and
consequential damages, which are available only if the plaintiff can
establish “special circumstances.” See id. Following the model of
UJI 13-1802 NMRA, the Committee proposes placing the consequential damages elements in new instruction UJI 13-843A.
Proposal 48 - Liquor Liability
[Withdrawal of UJIs 13-1641 to -1645 NMRA, new UJIs 131660 to -1668 NMRA]
The Uniform Jury Instructions - Civil Committee proposes the
withdrawal of UJIs 13-1641 to -1645 NMRA and the adoption of
new UJIs 13-1660 to -1668 NMRA to address liability for the provision of alcohol. The proposed new instructions address the following cases: Delfino v. Griffo, 2011-NMSC-015, 150 N.M. 97, 257
P.3d 917 (holding that NMSA 1978, Section 41-11-1(E) permits a
cause of action against a social host who recklessly provides alcohol
to a guest even when the alcohol is consumed in a licensed establishment and delivered by a licensed server); Mendoza v. Tamaya
Enterprises, Inc., 2011-NMSC-030, 150 N.M. 258, 258 P.3d 1050
(holding that the enactment of Section 41-11-1 did not displace
all common law liquor liability claims, and thus the common law
continues to recognize liquor liability claims against non-licensee
tavernkeepers), and Estate of Gutierrez ex rel. Jaramillo v. Meteor
Monument, L.L.C., 2012-NMSC-004, 274 P.3d 97 (holding that the
“reasonably-apparent” prong of Section 41-11-1 creates an objective standard). The proposed new set of instructions address the
various actions that may be brought against licensees, social hosts
in non-licensee settings, social hosts in licensee settings, unlicensed
sellers, and non-social host procurers and providers.
Proposal 49 - Future Damages
[UJI 13-1822 NMRA]
The Uniform Jury Instructions - Civil Committee proposes to
amend UJI 13-1822 NMRA (“Future damages; discount to present cash value.”). The proposed amendments aim to provide a
clearer explanation on the reduction of damages to present cash
value as well as providing more flexibility in the instruction by
allowing attorneys to stipulate to information such as the proper
interest rate. The amendments also advise attorneys that expert
witnesses may be necessary to accurately establish present value
for future losses and include information directing attorneys to
the present value tables in the New Mexico Statutes Annotated.
tions - Criminal. The General Use Note currently indicates an
absolute mandate that uniform instructions be submitted without
modification. Because there is often delay in modifying uniform
instructions in response to case law and statutory changes, the
Committee recommends softening this language so that district
courts may, if necessary, modify uniform instructions in order
to correctly instruct the law.
Proposal 51 - Kidnapping
[UJI 14-403 NMRA and new UJI 14-403A; withdrawal of UJI
14-6018 NMRA]
The Uniform Jury Instructions for Criminal Cases Committee
proposes to amend UJI 14-403 NMRA, adopt new UJI 14-403A
NMRA, and withdraw UJI 14-6018 NMRA pertaining to the
crime of kidnapping. The amendment to UJI 14-403 is proposed
due to problems when the special verdict form, UJI 14-6018, is
omitted by oversight as occurred in State v. Dominguez, 2014NMCA-064, 327 P.3d 1092. To avoid future uncertainty and to
communicate the lesser-included offense in a manner more consistent with other lesser-included offense instructions, UJI 14-403
pertains to first degree kidnapping and UJI 14-403A pertains to
second degree kidnapping. The first degree instruction contains
the additional elements required for the greater offense, and the
second-degree instruction does not. A Use Note indicates that
a step-down instruction is required in order to instruct on both
degrees. Because this change obviates the need for the special
verdict form, the Committee recommends withdrawing UJI 146018.
Proposal 52 - Second degree Criminal Sexual Penetration
[UJIs 14-954 NMRA and new UJI 14-6019A NMRA]
The Uniform Jury Instructions - Criminal Committee proposes
to amend UJIs 14-954 NMRA and adopt new UJI 14-6019 NMRA
in response to the Court’s opinion in State v. Stevens, 2014-NMSC011, 323 P.3d 901 (holding that when a second degree criminal
sexual penetration charge is based on the commission of a felony,
“it must be a felony that is committed against the victim or, and
that assists in the accomplishment of, sexual penetration perpetrated by force or coercion against a victim who, by age or other
statutory factor, gave no lawful consent”). Based on the Court’s
holding in Stevens, the Committee proposes modifying the elements instruction to better communicate the requisite nexus
between criminal sexual penetration committed in the course of
a felony and the predicate felony. The Committee also proposes
adopting a new special verdict form, UJI 14-6019A, to be used
when the State seeks to pursue the mandatory three year sentence
for second degree criminal sexual penetration when the victim is
of a certain age as such a finding must be made by the jury.
________________________________
The proposed rule amendments summarized above can be viewed
in their entirety at the New Mexico Supreme Court website, www.
nmsupremecourt.nmcourts.gov.
Uniform Jury Instructions Criminal Committee
to
Proposal 50 - General Use Note
[UJI-Criminal General Use Note].
The Uniform Jury Instructions - Criminal Committee proposes
amend the General Use Note to the Uniform Jury InstrucBar Bulletin - March 18, 2015 - Volume 54, No. 11
21
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
From the New Mexico Supreme Court
Opinion Number: 2015-NMSC-003
IN THE MATTER OF MAHDJID B. and ALIAH B., children,
STATE OF NEW MEXICO,
ex rel. CHILDREN, YOUTH AND FAMILIES DEPARTMENT,
Petitioner-Petitioner,
v.
DJAMILA B.,
Respondent-Respondent,
and
ABDEL M. B.,
Intervenor
No. 34,583 (filed December 15, 2014)
ORIGINAL PROCEEDING ON CERTIORARI
JOHN J. ROMERO, District Judge
CHARLES E. NEELLEY
Chief Children’s Court Attorney
REBECCA J. LIGGETT
Children’s Court Attorney
New Mexico Children, Youth and
Families Department
Santa Fe, New Mexico
for Petitioner
Opinion
Edward L. Chávez, Justice
{1}Respondent Djamila B. (Guardian)
was appointed by a family court as kinship
guardian to Mahdjid and Aliah (Children).
Petitioner Children, Youth and Families
Department (CYFD) brought abuse and
neglect proceedings in children’s court
against Guardian and Children’s biological
parents pursuant to the Abuse and Neglect
Act (ANA), NMSA 1978, §§ 32A-4-1 to -34
(1993, as amended through 2009). Prior
to seeking adoption for Children, CYFD
filed a motion to dismiss Guardian from
the abuse and neglect proceedings, arguing
that Guardian was not an appropriate party
to a termination of parental rights hearing
because Guardian is not Children’s biological parent. The children’s court granted
CYFD’s motion to dismiss Guardian without revoking the kinship guardianship in
22
JULIE SAKURA
HINKLE, HENSLEY, SHANOR
& MARTIN, L.L.P.
Santa Fe, New Mexico
for Respondent
NANCY L. SIMMONS
THE LAW OFFICES OF NANCY L. SIMMONS, P.C.
Albuquerque, New Mexico
for Intervenor
accordance with the revocation procedures
set forth under the Kinship Guardianship
Act (KGA), NMSA 1978, §§ 40-10B-1 to
-15 (2001). The Court of Appeals reversed
the children’s court ruling, holding that
Guardian was a necessary and indispensable party to the abuse and neglect proceedings. State ex rel. Children, Youth &
Families Dep’t v. Djamila B. (In re Mahdjid
B.), 2014-NMCA-045, ¶ 20, 322 P.3d 444.
This Court granted certiorari review. State
v. Djamila B., 2014-NMCERT-004.
{2}We affirm the Court of Appeals on
different grounds. We hold that while
kinship guardians are not necessary
and indispensable parties to abuse and
neglect proceedings, kinship guardians,
nonetheless, have a statutory right to a
revocation hearing in accordance with the
revocation procedures of the KGA prior to
being dismissed from abuse and neglect
proceedings. Such procedures require an
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evidentiary hearing and compliance with
the Rules of Evidence. There is no need
for separate filings and hearings in the
original family court that appointed the
kinship guardian because the children’s
court presiding over the abuse and neglect
proceeding has jurisdiction over the kinship guardian and the subject matter of the
case to make decisions that are ultimately
in the best interests of the children.
{3}Children’s biological father (Father)
intervened in this appeal after this Court
granted certiorari. Father argues that his
due process rights were violated because
he was not given a fair opportunity to voice
concerns in the dismissal of Guardian
from the abuse and neglect proceedings.
Although we briefly discuss Father’s claim,
we do not decide this issue because it is
unnecessary in view of our holding on
the primary issue. If CYFD continues to
believe that a revocation hearing is warranted, Father will have the opportunity
to participate in Guardian’s revocation
hearing.
I.BACKGROUND
{4}Guardian, who is Children’s paternal
aunt, became Children’s kinship guardian
pursuant to the KGA in May 2007 through
a separate proceeding in family court.
Children lived with Guardian from that
time until June 2010, when Children were
placed in CYFD’s custody.
{5} In June 2010, CYFD filed an abuse and
neglect petition in children’s court against
Children’s mother, Father, and Guardian
pursuant to the ANA. On June 30, 2010,
the children’s court issued a notice of
custody hearing set for July 8, 2010. The
children’s court ordered a treatment plan
requiring Guardian to submit to psychological and/or psychiatric evaluations,
domestic violence and substance abuse
assessments, and random drug testing as
directed by CYFD. CYFD’s initial assessment plan, which was attached to the children’s court order, proposed permanent
reunification of Children with Guardian by
July 2, 2010. Reunification with Guardian
remained the goal of the proceedings in
orders following the first judicial review
on November 2, 2010, the second judicial
review on February 3, 2011,and two permanency hearings on May 10, 2011 and
August 9, 2011. On August 9, 2011, the
children’s court adopted CYFD’s proposed
reunification plan pursuant to Sections
32A-4-24 and 32A-4-25.1, and Children
were scheduled for a trial home visit to
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transition back to living with Guardian
beginning on August 12, 2011 as Guardian
continued with her treatment plan.
{6}On February 16, 2012, CYFD filed
a motion to dismiss Guardian from the
abuse and neglect proceedings. At a permanency hearing on February 28, 2012,
CYFD changed its permanency plan for
Children from reunification with Guardian to adoption. CYFD’s motion to dismiss
also announced its intent to pursue termination of the parental rights of Children’s
biological parents. CYFD argued, in part,
that it was “filing a motion for Termination
of Parental Rights and [Guardian] does
not have parental rights to terminate and
will not benefit from following a treatment
plan and whether she follows a treatment
plan does not affect final permanency for
the children.” Furthermore, without reference to any external authority that would
support the requirement of “[p]er CYFD
policy,” CYFD asserted that Guardian was
not eligible either to adopt Children or
to be a foster placement for them. In an
order filed on April 17, 2012, the children’s
court adopted CYFD’s proposed changes
to the permanency plan. Guardian timely
opposed CYFD’s motion to dismiss her
from the case.
{7}On May 8, 2012, the children’s court
held an evidentiary hearing on CYFD’s
motion to dismiss. Prior to commencing
the hearing, the children’s court addressed
preliminary matters with the parties and
ruled that “[t]he formal rules of evidence
[would] not apply” during the hearing. The
children’s court explained that the formal
rules of evidence do not apply during
abuse and neglect proceedings except for
adjudicatory or termination of parental
rights hearings. The children’s court also
advised the parties that it would instead
“weigh[] and balance[]” all of the evidence
presented to “see whether the motion [to
dismiss] should or should not be granted.”
{8}After hearing all of the evidence presented during the May 8, 2012 hearing, the
children’s court granted CYFD’s motion to
dismiss. The children’s court briefly addressed the issue of the ongoing kinship
guardianship, but it ultimately ruled that
the children’s court lacked jurisdiction to
revoke a kinship guardianship appointed
by a family court. The children’s court
also ruled that a kinship guardianship
is “always a temporary status,” and that
Guardian was not Children’s legal parent.
Specifically, the children’s court expressed
its opinion that the appointment of a kinship guardian does not divest the rights of
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the biological parents, and thus it cannot
vest Guardian with full parental rights.
The children’s court ultimately ruled
that CYFD had custody of Children, and
because Guardian was not a legal parent,
CYFD had complete discretion regarding
Children’s placement.
{9}On July 2, 2012, the children’s court
granted CYFD’s motion to dismiss Guardian in an order devoid of findings of fact
or conclusions of law. Guardian timely
appealed the children’s court order dismissing her from the abuse and neglect
proceedings. In her docketing statement,
Guardian argued, inter alia, that dismissal
from the abuse and neglect proceedings was
improper until her kinship guardianship
rights were revoked pursuant to the KGA.
{10}The Court of Appeals held that “[t]he
[children’s] court erred in dismissing Guardian from the proceedings while she remained
the kinship guardian of Children because she
was a necessary and indispensable party to
the pending case.” Djamila B., 2014-NMCA045, ¶ 20. The Court of Appeals reversed the
children’s court order dismissing Guardian
and “all subsequent orders entered in the case
in proceedings that took place without notice
first having been provided to Guardian” and
remanded the case “to the district court to
reinstate Guardian as a party respondent in
the matter and for further proceedings in
accordance with law.” Id.
{11} CYFD appealed to this Court, and
we granted certiorari review. 2014-NMCERT-004. Father intervened in this
appeal after this Court granted certiorari
review.
II.DISCUSSION
A.Kinship guardians shall not be
involuntarily dismissed from abuse
and neglect proceedings unless the
kinship guardianship is first
properly revoked in accordance
with the revocation procedures
of the KGA and the New Mexico
Rules of Evidence
{12} CYFD argues that the Court of Appeals erred in concluding that Guardian
was a necessary and indispensable party
to the abuse and neglect proceedings, and
therefore she could not be dismissed from
the abuse and neglect proceedings until
her kinship guardianship was first properly
revoked pursuant to the KGA. Resolving
this issue requires a survey of the interrelationship between two groups of statutes, the
ANA and the KGA. “Statutory interpretation is a question of law, which we review
de novo.” Bank of New York v. Romero,
2014-NMSC-007, ¶ 40, 320 P.3d 1.
1.
The Legislature enacted the ANA and
the KGA with the intent to preserve
family unity
a. The ANA
{13} The New Mexico Children’s Code,
NMSA 1978, §§ 32A-1-1 to -24-5 (1993,
as amended through 2009), incorporates
the ANA and qualifies ANA policy and
procedure. The central purpose of the
Children’s Code is to protect the health and
safety of children covered by its provisions
while “preserv[ing] the unity of the family
whenever possible.” Section 32A-1-3(A).
To achieve these goals, the ANA “details
the procedures and timelines the State
must follow when it invokes the jurisdiction of the district court to take physical
and/or legal custody of a child whom it
alleges to be abandoned, neglected, or
abused.” State ex rel. Children, Youth &
Families Dep’t v. Maria C. (In re Rudolfo
L.), 2004-NMCA-083, ¶ 18, 136 N.M. 53,
94 P.3d 796. The ANA procedures serve the
express purpose of the Children’s Code by
“assur[ing] that ‘the parties [receive] a fair
hearing and their constitutional and other
legal rights are recognized and enforced.’
” Id. ¶ 23 (second alteration in original)
(quoting Section 32A-1-3(B)). Accordingly, the ANA guarantees the child’s
parent, guardian, or custodian notice and
participation in proceedings prior to the
termination of parental rights. Sections
32A-18 to -20, -22, -25, -25.1.
{14} An abuse and neglect case begins
when CYFD files a petition alleging abuse
or neglect. See § 32A-4-7(D) (“Reasonable
efforts shall be made to prevent or eliminate the need for removing the child from
the child’s home, with the paramount concern being the child’s health and safety. In
all cases when a child is taken into custody,
the child shall be released to the child’s parent, guardian or custodian, unless [CYFD]
files a petition within two days from the
date that the child was taken into custody.”
(emphasis added)). Upon the filing of a
petition, “counsel shall be appointed for
the parent, guardian or custodian of the
child.” Section 32A-4-10(B). Within ten
days of filing, the children’s court holds
a custody hearing to determine whether
the child should remain in CYFD custody
or whether CYFD should return legal
custody to the child’s parent, guardian, or
custodian pending an adjudicatory hearing. Section 32A-4-18(A), (C). The children’s court shall return legal custody to
the child’s parent, guardian, or custodian
unless it finds probable cause for abuse or
neglect. Section 32A-4-18(C).
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23
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{15} An adjudicatory hearing is held
within sixty days from when CYFD
serves the abuse and neglect petition.
Section 32A-4-19(A). The adjudicatory
hearing focuses on whether the child
was abused or neglected as defined under the ANA. Sections 32A-4-2, -20(H).
The children’s court determines whether
the child was abused or neglected based
on a valid admission from the parties
or on clear and convincing evidence.
Id. If the children’s court finds abuse or
neglect, the court may address disposition immediately or hold a dispositional
hearing within thirty days after the adjudicatory hearing where it hears evidence
and determines the best interests of the
child as to the child’s custody. Section
32A-4-20(H), -22(A). Additionally, if
the children’s court finds the child to be
abused and/or neglected, “the court shall
also order [CYFD] to implement and
the child’s parent, guardian or custodian
to cooperate with any treatment plan
approved by the court.” Section 32A4-22(C) (emphasis added). Within sixty
days of disposition, the children’s court
holds an initial judicial review hearing to
determine the effectiveness of the treatment plan. Section 32A-4-25(A).
{16} Within six months of the initial
judicial review of the dispositional order,
the children’s court holds an initial permanency hearing to determine whether
the child should be returned home to the
child’s parent, guardian, or custodian or
remain in CYFD’s custody. Section 32A4-25.1(A), (B).
At the conclusion of the permanency hearing, the [children’s]
court shall order one of the following permanency plans for
the child:
(1)
reunification;
(2)
placement for adoption
after the parents’ rights have been
relinquished or terminated or
after a motion has been filed to
terminate parental rights;
placement with a person
(3)
who will be the child’s permanent
guardian;
(4)
placement in the legal
custody of [CYFD] with the child
placed in the home of a fit and
willing relative; or
(5)
placement in the legal
custody of [CYFD] under a
planned permanent living arrangement, provided that there
is substantial evidence that none
24
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of the above plans is appropriate
for the child.
Section 32A-4-25.1(B).
{17} “If the court adopts a permanency
plan of reunification, the court shall
adopt a plan for transitioning the child
home and schedule a permanency review hearing within three months” to
ensure that the child’s parent, guardian,
or custodian has made good progress.
Section 32A-4-25.1(C). “At the permanency review hearing, all parties and the
child’s guardian ad litem or attorney shall
have the opportunity to present evidence
and cross-examine witnesses.” Section
32A-4-25.1(E). Notably, the Rules of
Evidence do not apply in permanency
review hearings. Section 32A-4-25.1(I);
see also Rule 11-1101(D) NMRA (“These
rules—except for those on privilege—
do not apply to the following: . . . (3)
(f ) dispositional hearings in children’s
court proceedings, and (g) the following
abuse and neglect proceedings: (i) issuing
an ex parte custody order; (ii) custody
hearings; (iii) permanency hearings; and
(iv) judicial review proceedings.”). If the
child is returned home, the case can either
be dismissed or the children’s court can
order continuing supervision. Section
32A-4-25.1(E)(2)-(3). At the permanency
review hearing, if the children’s court finds
that reunification is still not possible, it
will initiate proceedings for a permanent
guardianship or termination of parental
rights (adoption). See § 32A-4-31 (permanent guardianship); § 32A-4-28 (termination of parental rights).
{18} Terminating parents’ right to reunite
with their child, thereby extinguishing the
family unit, is a mechanism of last resort
under the ANA. The ANA provides that a
children’s court shall terminate parental
rights only when:
(1)
there has been an abandonment of the child by [the
child’s] parents;
(2)
the child has been a neglected or abused child as defined
in the [ANA] and the court finds
that the conditions and causes
of the neglect and abuse are unlikely to change in the foreseeable
future despite reasonable efforts
by [CYFD] or other appropriate
agency to assist the parent in adjusting the conditions that render
the parent unable to properly care
for the child. . . . [; or]
(3)
the child has been placed
in the care of others, including
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care by other relatives, either by a
court order or otherwise and the
following conditions exist . . . .
Section 32A-4-28(B). CYFD or any of
the other parties to the proceeding may
file a motion to terminate parental rights
at any time during abuse and neglect
proceedings. Section 32A-4-29(A).
However, “[t]he grounds for any attempted termination shall be proved by
clear and convincing evidence.” Section
32A-4-29(I). Unlike the ANA provisions
for initial permanency reviews, adjudicatory hearings, or dispositional hearings
prior to termination, the procedures for
the termination of parental rights fail to
mention guardians.
{19} In summary, the ANA limits the
procedures and time frame under which
parents or custodians and, by extension,
guardians can rehabilitate themselves and
reunite with their children in line with the
overall purpose of the Children’s Code.
Maria C., 2004-NMCA-083, ¶¶ 18-22.
While the ANA serves to protect children
in New Mexico against abuse and neglect,
preserving the family relationship between
the child and the child’s parent, guardian,
or custodian remains the ultimate goal of
ANA proceedings until the children’s court
finds that reunification is simply not possible.
b. The KGA
{20} Similar to the overall purpose of
the Children’s Code, the KGA recognizes
New Mexico policy that the “interests of
children are best served when they are
raised by their parents.” Section 40-10B2(A). However, when neither parent is
able or willing to raise their child, the
Legislature enacted the KGA in 2001 to
establish procedures whereby “a child
should be raised by family members or
kinship caregivers.” Id. The KGA applies
to cases where a child has been left by the
child’s parents “in the care of another for
ninety consecutive days [or more] and that
arrangement leaves the child . . . without
appropriate care, guidance or supervision.”
Section 40-10B-2(B).
{21} Ultimately, “[t]he KGA establishes
procedures and substantive standards
for effecting legal relationships between
children and adult caretakers who have
assumed the day-to-day responsibilities
of caring for a child.” Debbie L. v. Galadriel L. (In re Guardianship of Victoria
R.), 2009-NMCA-007, ¶ 4, 145 N.M. 500,
201 P.3d 169; see also § 40-10B-2(C) (“The
purposes of the Kinship Guardianship Act
are to: (1) establish procedures to effect a
Advance Opinions
legal relationship between a child and a
kinship caregiver when the child is not
residing with either parent; and (2) provide a child with a stable and consistent
relationship with a kinship caregiver that
will enable the child to develop physically,
mentally and emotionally to the maximum
extent possible when the child’s parents
are not willing or able to do so.”). Kinship
guardians possess all of “the legal rights
and duties of a parent except the right to
consent to adoption of the child and except for parental rights and duties that the
court orders retained by a parent.” Section
40-10B-13(A); see also § 40-10B-3(A) (“As
used in the Kinship Guardianship Act[,]
. . . ‘caregiver’ means an adult, who is not a
parent of a child, with whom a child resides
and who provides that child with the care,
maintenance and supervision consistent
with the duties and responsibilities of a
parent of the child.”).
{22} A petition for kinship guardianship
may be filed by a “kinship caregiver,” Section 40-10B-5(A)(1), a designation that
includes three categories of caregivers: (1)
an adult relative, godparent, or member of
the child’s tribe or clan, Section 40-10B3(A), (C); (2) “an adult with whom the
child has a significant bond,” id.; and (3)
a guardian appointed directly by a court
under the KGA, Sections 40-10B-7(A),
-8(A). “Upon hearing, if the court finds
that a qualified person seeks appointment,
the venue is proper, the required notices
have been given, the requirements . . . of
this section have been proved and the best
interests of the minor will be served by the
requested appointment, it shall make the
appointment.” Section 40-10B-8(A). A
kinship guardian “has authority to make
all decisions regarding visitation between a
parent and the child” unless otherwise ordered by the court. Section 40-10B-13(B).
{23} A motion to revoke the kinship
guardianship may be filed by any person.
Section 40-10B-12(A). Because of the
rights and interests involved, our Rules
of Evidence apply in these kinship guardianship revocation proceedings. See Rule
11-101 NMRA (governing the scope of our
Rules of Evidence); Rule 11-102 NMRA
(“These rules should be construed so as
to administer every proceeding fairly . . .
and promote the development of evidence
law, to the end of ascertaining the truth
and securing a just determination.”); Rule
11-1101 (governing the applicability of
our Rules of Evidence and listing the
specific exceptions to their applicability;
notably, KGA revocation hearings are not
http://www.nmcompcomm.us/
a listed exception). To revoke the kinship
guardianship, the moving party has the
burden of showing that “a preponderance
of the evidence proves a change in
circumstances and the revocation is in the
best interests of the child.” Section 40-10B12(B). A preponderance of the evidence
makes it easier to return a child to his or
her biological parents when the child’s biological parents are able and willing to care
for the child. Through this lower burden of
proof, the KGA provides the proper statutory mechanism for preserving the unity
of family for New Mexico children without
severely disrupting the important role of a
parent for the child, regardless of whether
that parental role is fulfilled by the child’s
biological parent or a kinship guardian.
See § 40-10B-2(A) (“[W]henever possible,
a child should be raised by family members
or kinship caregivers.”).
2.
The Legislature intended that kinship
guardians participate in all abuse
and neglect proceedings until the
kinship guardianship is properly
revoked in accordance with the
revocation procedures of the KGA
{24} CYFD argues that the omission
of guardians from the statutory provisions of the ANA concerning parental
rights termination procedures precludes
Guardian’s ability to further participate
in the abuse and neglect proceedings because Guardian lacks any parental rights
to divest. However, the omission of the
term “guardian” from the parental rights
termination procedures in the ANA does
not determine whether Guardian has a
statutory right to participate in all abuse
and neglect proceedings until her kinship
guardianship is properly revoked. The
Legislature enacted the Children’s Code
and the KGA to create mechanisms for
elevating guardians to the status of a child’s
biological parents when the biological
parents are unwilling or unable to properly
care for the child. These statutory mechanisms support the overall purpose of the
Children’s Code and the KGA concerning
family unity. The KGA bestows parental
rights on kinship guardians, which must
be properly revoked prior to involuntarily
dismissing kinship guardians from abuse
and neglect proceedings or before appointing a permanent guardian other than the
kinship guardian. See §§ 32A-4-25.1(B)(3),
-31, -32. We hold that the Legislature intended that kinship guardians participate
in all abuse and neglect proceedings until
the kinship guardianship is first properly
revoked in accordance with the revocation
procedures of the KGA and our Rules of
Evidence.
{25} “Our principal goal in interpreting
statutes is to give effect to the Legislature’s
intent.” Griego v. Oliver, 2014-NMSC003, ¶ 20, 316 P.3d 865. In interpreting
statutory language, “[w]e look first to the
plain language of the statute.” Freedom C.
v. Brian D. (In re Guardianship of Patrick
D.), 2012-NMSC-017, ¶ 13, 280 P.3d 909
(alteration in original) (internal quotation
marks and citation omitted). However,
“we look not only to the language used in
the statute, but also to the purpose to be
achieved and the wrong to be remedied.”
Jolley v. Associated Elec. & Gas Ins. Servs.
Ltd., 2010-NMSC-029, ¶ 8, 148 N.M. 436,
237 P.3d 738 (internal quotation marks and
citation omitted). We analyze a “statute’s
function within a comprehensive legislative scheme.” State v. Rivera, 2004-NMSC001, ¶ 13, 134 N.M. 768, 82 P.3d 939.
{26} The ANA, “as part of the Children’s
Code, . . . must be read as an entirety and
each section interpreted so as to correlate
as faultlessly as possible with all other
sections.” State ex rel. Children, Youth &
Families Dep’t v. Benjamin O. (In re Lakota
C.), 2007-NMCA-070, ¶ 34, 141 N.M. 692,
160 P.3d 601 (internal quotation marks and
citation omitted). “Additionally, the provisions of the Children’s Code should be interpreted in such a manner as to effectuate
its purposes, which include preservation of
family unity when possible.” Id. (internal
quotation marks and citations omitted). “
‘In other words, a statutory subsection may
not be considered in a vacuum, but must
be considered in reference to the statute as
a whole and in reference to statutes dealing with the same general subject matter.’
” State ex rel. Children, Youth & Families
Dep’t v. Maurice H. (In re Grace H.), 2014NMSC-034, ¶ 34, 335 P.3d 746 (quoting
Rivera, 2004-NMSC-001, ¶ 13 (internal
quotation marks and citation omitted)).
“Whenever possible, we must read different legislative enactments as harmonious
instead of as contradicting one another.”
Smith, 2004-NMSC-032, ¶ 10 (internal
quotation marks and citation omitted).
{27} The harmonious common purpose
of the ANA and the KGA is to preserve
family unity whenever possible. In line
with this purpose, the ANA and the KGA
both elevate guardians to a level of responsibility synonymous with that of parents.
The KGA, enacted to provide a mechanism
for family members to legally step into the
shoes of parents when a child’s biological
parents are unable or unwilling to care for
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
25
Advance Opinions
that child, grants kinship guardians the
same legal rights and responsibilities that
a biological parent would have.
{28} This Court rejects “a formalistic and
mechanical statutory construction when
the results would be absurd, unreasonable,
or contrary to the spirit of the statute.”
Smith, 2004-NMSC-032, ¶ 10. Each provision defining the harms and neglect within
the ANA includes the term “guardian” in
addition to the terms “parent” and “custodian” as persons who are responsible for
those harms. Section 32A-4-2(B)(1)-(5),
(E)(1)-(4). Additionally, the term “guardian” appears in numerous other provisions
of the ANA. See, e.g., § 32A-4-2 (defining
abuse and neglect by parties including
guardians); § 32A-4-6(A) (describing conditions under which a child may be taken
into custody, including when guardians
commit certain acts); § 32A-4-7(A) (listing guardians as persons to whom CYFD
may release children in CYFD’s custody); §
32A-4-22(C) (requiring guardians to comply with court-ordered treatment plans
implemented by CYFD); § 32A-4-25(H)
(7) (empowering a court during periodic
judicial review hearings to issue an order
to show cause or to order a hearing on the
merits of a motion to terminate parental
rights if a parent or guardian has not followed their treatment plan).
{29} Pursuant to the ANA, a kinship
guardian can be accused of abuse and
neglect, § 32A-4-6(A), summoned to
participate in all abuse and neglect proceedings, §§ 32A-4-10(B), -18(B)-(C),
and ordered to follow a court-ordered
permanency and treatment plan implemented by CYFD, § 32A-4-22(C). Prior
to the termination hearing, CYFD and
the children’s court treated both Guardian and Children’s biological parents
alike. Guardian was the only party who
made consistent efforts to comply with
her court-ordered treatment plan. Most
importantly, Guardian was Children’s
only parental figure for nearly three
years between May 2007 and June
2010. Nonetheless, CYFD improperly
maintains a rigid textual interpretation
of the ANA precluding Guardian from
further participating in the abuse and
neglect proceedings. Precluding kinship
guardians from participating in abuse
and neglect termination of parental
rights hearings, while ordering them to
comply with CYFD’s permanency plans
for reunification with children, leads to a
result that is either “absurd, unreasonable,
or contrary to the spirit of the statute[s].”
26
http://www.nmcompcomm.us/
State v. Smith, 2004-NMSC-032, ¶ 10, 136
N.M. 372, 98 P.3d 1022; see also Maria
C., 2004-NMCA-083, ¶ 25 (recognizing
that the process for terminating parental
rights is a “continuum of proceedings”
beginning with the filing of the neglect
or abuse petition).
{30} We recognize that the Legislature
did not expressly include the term “guardian” within the ANA provisions concerning the termination of parental rights.
However, the Legislature’s omission is not
dispositive of whether kinship guardians
have a statutory right to a revocation hearing prior to being involuntarily dismissed
from abuse and neglect proceedings. “The
legislature is presumed to be aware of existing statutes when it enacts legislation.”
State v. Fairbanks, 2004-NMCA-005, ¶ 9,
134 N.M. 783, 82 P.3d 954. Accordingly,
the Legislature is presumed to have been
aware of both the ANA and the KGA.
Because the Legislature intended that
the ANA and the KGA work in harmony,
the revocation procedures of the KGA
naturally complement the ANA provisions
concerning termination of parental rights.
By enacting compatible legislation, the
Legislature intended that courts presiding
over abuse and neglect proceedings first
hold a revocation hearing in accordance
with KGA revocation procedures and our
Rules of Evidence prior to involuntarily
dismissing a kinship guardian from abuse
and neglect proceedings.
{31} This interpretation allows children’s
courts to ensure that the ANA is applied in
a manner which adheres to the spirit of the
Children’s Code and the KGA. Although
the ANA fails to explicitly include the term
“guardian” within its statutory procedures
for terminating parental rights, kinship
guardians nonetheless possess rights
equivalent to the parental rights being
terminated by the children’s court through
abuse and neglect proceedings.
{32} Cases that come under the ANA and
the KGA often involve unconventional
family structures and unconventional
facts. See In re Guardianship of Patrick
D., 2012-NMSC-017, ¶¶ 1, 29 (court
found both parents unfit to raise child;
maternal grandparents granted guardianship); In re Guardianship of Victoria R.,
2009-NMCA-007, ¶¶ 2, 12 (affirming
the district court’s award of guardianship
to adult caregivers with whom the child
formed a bond where father had limited
contact with child, mother had emotional
problems, and mother informally left the
eighteen-month-old child with the adult
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
caregivers, who raised the child for several years). The ANA and the KGA need
to work in harmony to preserve family
unity when children have unconventional
family structures involving both biological
parents and kinship guardians. It would
undermine the spirit of both acts to allow a children’s court to involuntarily
dismiss kinship guardians from abuse
and neglect proceedings merely based on
a strict interpretation of the ANA focused
on the omission of “guardian” from the
ANA provisions concerning termination
of parental rights. Such a result would be
antithetical to the Legislature’s intent in
enacting both statutes.
{33} Consistent with legislative intent, we
hold that kinship guardianships must be
revoked in accordance with the revocation
procedures of the KGA and our Rules of
Evidence before involuntarily dismissing
a kinship guardian from abuse and neglect
proceedings. The KGA requires the party
moving for revocation to prove that “a
preponderance of the evidence proves a
change in circumstances and the revocation is in the best interests of the child.”
Section 40-10B-12(B). If the court finds
that the burden of proof has been met,
the court shall grant the motion to revoke
the guardianship and dismiss the kinship
guardian from the abuse and neglect proceedings. Section 40-10B-12. The court
shall also “(1) adopt a transition plan proposed by a party or the guardian ad litem;
(2) propose and adopt its own transition
plan; or (3) order the parties to develop a
transition plan by consensus if they will
agree to do so.” Section 40-10B-12(B).
3. Family courts that appoint kinship
guardians have concurrent jurisdiction
with the children’s court in overseeing a
kinship guardianship revocation hearing
during abuse and neglect proceedings
{34} The KGA provides that “[t]he court
appointing a guardian pursuant to the
[KGA] retains continuing jurisdiction
of the matter.” Section 40-10B-14. The
children’s court in this case interpreted
continuing jurisdiction to mean exclusive
jurisdiction. Accordingly, the children’s
court ruled that it lacked jurisdiction to
revoke the kinship guardianship pursuant
to Section 40-10B-14 of the KGA. We disagree. Such an interpretation is contrary to
the plain text of the KGA and contrary to
the functional purposes of the revocation
provisions of both the KGA and abuse and
neglect proceedings.
{35} First, although the KGA provides for
“continuing” jurisdiction, it does not grant
Advance Opinions
exclusive jurisdiction to district courts that
appoint kinship guardianships. See § 4010B-4 (“The district court has jurisdiction
of proceedings pursuant to the [KGA]. . . .
Proceedings pursuant to the [KGA] shall
be in the district court of the county of the
child’s legal residence or the county where
the child resides, if different from the
county of legal residence.”); see also § 4010B-14 (“The court appointing a guardian
pursuant to the [KGA] retains continuing
jurisdiction of the matter.”). The continuing jurisdiction provision of the KGA
differs from our child custody statutes,
which explicitly necessitate “exclusive,
continuing jurisdiction.” NMSA 1978, §
40-10A-202 (2001) (emphasis added); see
also Elder v. Park, 1986-NMCA-034, ¶ 17,
104 N.M. 163, 717 P.2d 1132 (recognizing that the primary purpose of the New
Mexico Child Custody Jurisdiction Act,
NMSA 1978, §§ 40-10-1 to -24 (1981,
as amended through 1989), “is to avoid
jurisdictional competition and conflict
in making custody awards” and facilitate
the “orderly resolution of child custody
disputes between parents located in different states” (repealed by 2001 Laws, ch.
114, § 404 and recodified in the Uniform
Child-Custody Jurisdiction and Enforcement Act, NMSA 1978, §§ 40-10A-101 to
-403 (2001))). A children’s court holding
a kinship guardianship revocation hearing
during abuse and neglect proceedings does
not give rise to concerns of competing
judicial decrees. In situations such as this
case, children’s courts have jurisdiction
over kinship guardians during abuse and
neglect proceedings. The children’s court is
in a better position than the family court to
evaluate the “change in circumstances and
[whether] the revocation is in the best interests of the child.” Section 40-10B-12(B).
{36} Second, the Legislature enacted both
the KGA and the Children’s Code with
the purpose of preserving family unity.
In revoking a kinship guardianship, both
family courts and children’s courts have
concurrent objectives in trying to preserve
notions of family unity while effecting the
child’s best interests.
{37} Consistent with legislative intent,
we hold that family courts which appoint
kinship guardianships have continuing
concurrent jurisdiction over the kinship
guardianship, with children’s courts presiding over abuse and neglect proceedings. CYFD may petition to revoke the
rights of a kinship guardian within those
abuse and neglect proceedings. Our holding bridges the divide between the KGA
http://www.nmcompcomm.us/
and the ANA and provides courts with
symbiotic authority to make rulings that
are ultimately in the child’s best interests.
After receiving a proper motion to revoke
a kinship guardianship during abuse and
neglect proceedings, the children’s court
may conduct a full evidentiary hearing
in accordance with our Rules of Evidence
and act according to the revocation procedures of the KGA to revoke the kinship
guardianship if the burden of proof has
been met. Once the kinship guardianship
has been properly revoked, the kinship
guardian shall be dismissed from further
participation in the abuse and neglect
proceedings.
4.
A lthough we hold that kinship
guardians have a statutory right to
a revocation hearing prior to being
dismissed from abuse and neglect
proceedings, kinship guardians are
not necessary and indispensable
parties pursuant to Rule 1-019 NMRA
{38} The Court of Appeals held that
the children’s court erred in dismissing
Guardian because she was a necessary
and indispensable party to the abuse and
neglect proceedings until her kinship
guardianship was revoked pursuant to
the KGA. Djamila B., 2014-NMCA-045,
¶ 20. The Court of Appeals reasoned that
the KGA conveyed to Guardian the “legal
rights and duties of a parent except the
right to consent to adoption” or the “rights
and duties that the court orders retained
by a parent.” Id. ¶ 13 (internal quotation
marks citation omitted).
A kinship guardian is therefore
entitled to the statutory benefits
of the [KGA], including the right
that [r]easonable efforts shall be
made to preserve and reunify the
family, with the paramount concern being the child’s health and
safety. . . . [T]he kinship guardian
has the same right as a parent
to be a party in a proceeding to
terminate parental rights and to
advocate or object to the termination of parental rights based
on the best interest of the child
until the kinship guardianship is
properly terminated.
Id. ¶ 13 (second alteration in original)
(internal quotation marks and citation
omitted).
{39} The legal concept of a necessary and
indispensable party is set forth in Rule
1-019(B). However, Rule 1-019 is a rule
of civil procedure that does not govern
children’s court cases concerning the
Children’s Code. See Rule 10-101(A)(1)(c)
NMRA (“[T]he Children’s Court Rules [of
Procedure] govern procedure in the children’s courts of New Mexico in all matters
involving children alleged by the state . . .
to be abused or neglected as defined in the
[ANA] including proceedings to terminate
parental rights which are filed pursuant to
the [ANA].”). Rule 10-121(B)(2) NMRA
provides that a guardian must be a party
to the abuse and neglect proceedings. “In
proceedings on petitions alleging neglect
or abuse or a family in need of court-ordered services, the parties to the action are:
. . . (2) a parent, guardian or custodian who
has allegedly neglected or abused a child
or is in need of court-ordered services.”
Rule 10-121(B). This rule does not state
that the named parties are necessary and
indispensable, and instead unambiguously
directs that a guardian must be a party to
the action.
{40} This Court agrees with the outcome
reached by the Court of Appeals on different grounds. Kinship guardians do have
a statutory right to a revocation hearing
pursuant to the KGA prior to being involuntarily dismissed from abuse and neglect
proceedings. However, we hold that kinship
guardians are not necessary and indispensable parties to ANA proceedings as defined
by Rule 1-019. We clarify the holding of the
Court of Appeals on this ground.
B. Father’s due process rights were not
violated during the hearings on the
motion to dismiss Guardian from
the abuse and neglect proceedings
{41} Father filed a motion to intervene
in this appeal after this Court granted certiorari. In his briefing, Father raised issues
of procedural due process, arguing that he
was not given a fair opportunity to voice
concerns in the dismissal of Guardian
from the abuse and neglect proceedings.
Specifically, Father asks this Court to hold
that “a natural parent’s expressed wish for
family reunification via the auspices of
placement with a relative must be taken
into account prior to dismissal of the relative from abuse and neglect proceedings.”
Father further argues that his fundamental
liberty interests based in the Fourteenth
Amendment allow him to influence
placement decisions for Children. CYFD
argues that Father’s claim was not properly
preserved in the district court and cannot
be raised for the first time on appeal. See
Rule 12-216(A) NMRA (“To preserve a
question for review it must appear that a
ruling or decision by the district court was
fairly invoked.”).
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27
Advance Opinions
{42}We usually review denial of due
process rights de novo. State ex rel. Children, Youth & Families Dep’t v. Pamela
R.D.G. (In re Pamela A.G.), 2006-NMSC019, ¶ 10, 139 N.M. 459, 134 P.3d 746.
However, we do not issue a holding on this
question because it is unnecessary due to
our holding that Guardian is entitled to a
revocation hearing prior to dismissal from
the abuse and neglect proceedings.
{43} Father had various opportunities to
meaningfully participate in the proceedings to dismiss Guardian from the abuse
and neglect proceedings. At the February
28, 2012 hearing on permanency that resulted in the children’s court’s approval of
a plan of adoption and that first considered
the motion to dismiss Guardian, Father’s
counsel and Father were present. Father’s
attorney was excused from a subsequent
hearing on the motion to dismiss on
March 27, 2012 to work on other pleadings because Father would remain a party
to the abuse and neglect proceedings, regardless of the outcome of the hearing on
the motion to dismiss Guardian. Father
and his counsel both attended but did not
28
http://www.nmcompcomm.us/
participate in the May 8, 2012 evidentiary
hearing on the motion to dismiss Guardian
from the abuse and neglect proceedings,
and again they stated no position on the
motion to dismiss. Finally, Father did not
intervene in the Court of Appeals action
that preceded this appeal. As a result,
CYFD argues that this Court lacks jurisdiction to consider the issue. See NMSA
1978, § 34-5-14 (1972) (providing that
this Court has jurisdiction over original
writs, decisions of the Court of Appeals,
and actions certified to this Court by the
Court of Appeals).
{44} The circumstances surrounding
Father’s lack of participation in Guardian’s dismissal and this late intervention
raise troubling questions. However, all
of these questions are irrelevant given
our holding that Guardian is entitled to
a revocation hearing in accordance with
the KGA and our Rules of Evidence prior
to being involuntarily dismissed from the
abuse and neglect proceedings. Because
Father’s rights had not been terminated as
of the time of this appeal, he will have an
opportunity to participate in any proceed-
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
ing initiated to revoke Guardian’s kinship
guardianship status if he so chooses.
III.CONCLUSION
{45} We reverse the children’s court
ruling to dismiss Guardian as contrary
to law. We affirm the Court of Appeals
on different grounds and hold that while
kinship guardians are not necessary and
indispensable parties to abuse and neglect
proceedings, a kinship guardian is nonetheless entitled to a revocation hearing in
accordance with the KGA and our Rules
of Evidence prior to dismissal from abuse
and neglect proceedings. We remand this
case to the children’s court to conduct a
revocation hearing if CYFD continues to
believe that such a hearing is warranted.
{46} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
CHARLES W. DANIELS, Justice
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505/466-6418
cf@appellatecounsel.info
No need for another associate
Bespoke lawyering for a new millennium
THE BEZPALKO LAW FIRM
Legal Research and Writing
(505) 341-9353
www.bezpalkolawfirm.com
March 22 • 25
27 • 29, 2015
MCLE 2014
Annual Compliance Reports
The 2014 Annual Compliance Reports have been mailed to all
active licensed New Mexico attorneys. The reports include all
information for courses taken by 12/31/14.
All non-compliant attorneys have been assessed a late
compliance fee, and the invoice for payment of the fee is
included with the Annual Report. Non-compliant attorneys
must complete their requirements immediately. On April 1,
2015 a second late compliance fee will be assessed for those
attorneys who continue to be in non-compliance.
On May 1, 2015 the MCLE office will submit to the Supreme
Court a list of all attorneys who have not completed their 2014
requirements and/or failed to pay assessed late compliance fees.
The Supreme Court will then begin to initiate the suspension
process for those attorneys on the list. For more information,
call MCLE at (505) 821-1980; e-mail mcle@nmmcle.org, or
write to MCLE, PO Box 93070, Albuquerque, NM 87199.
32
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
(505) 988-2826 • jbyohalem@gmail.com
Classified
Positions
Associate Attorney
Madison & Mroz, P.A., an AV-rated civil
defense firm, seeks an associate with three to
five years experience to assist with all aspects
of our litigation practice. This person should
have strong research and writing skills and
the ability to work independently. We offer
a competitive salary and excellent benefits.
All inquiries will be kept confidential. Please
forward CVs to: Hiring Partner, P.O. Box
25467, Albuquerque, NM 87102.
Associate Trial Attorney and
Experienced Senior Trial Attorney
The Eleventh Judicial District Attorney’s
Office, Division I (San Juan County), is accepting resumes for immediate positions of
Associate Trial Attorney and Experienced
Senior Trial Attorney. Salary is based on
experience and the New Mexico District
Attorney Personnel and Compensation
Plan ($42,935-74,753). Send resumes to Lori
Holesinger, HR Administrator, 335 S. Miller
Ave., Farmington, NM 87401, or via e-mail
lholesinger@da.state.nm.us Equal Opportunity Employer.
Experienced Associate Attorney
Wiggins, Williams & Wiggins, P.C. seeks
an experienced associate attorney for our
established law firm. Our practice areas
are diverse and include transactional work,
employment law, defense of torts and civil
rights actions, and Native American law.
Competitive salary, excellent benefits and a
flexible work schedule are offered. Interested
candidates should submit their resumes and
a writing sample to Celina Salazar, Firm
Administrator, P.O. Box 1308, Albuquerque,
NM 87103-1308 or at csalazar@wwwlaw.us.
All inquiries will be kept confidential.
13th Judicial District Attorney
Senior Trial Attorney, Assistant Trial
Attorney, Associate Trial Attorney
Cibola, Sandoval, Valencia Counties
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
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.
Associate Attorney
Insurance Defense Attorney
Associate Attorney Position
Hatcher & Tebo, PA is still growing and so
we’re seeking another associate attorney with
two-plus years of legal experience for our
downtown Santa Fe office. We are looking for
someone not only ready for the challenge of
a heavy caseload, but also motivated to excel
at the practice of law in a litigation-focused
practice; you should be a self-starter who will
hit the ground running to support our growing practice. Hatcher & Tebo, PA defends
individuals, state and local governments and
institutional clients in the areas of insurance
defense, coverage, workers compensation,
employment and civil rights. We offer a great
work environment, competitive salary and
opportunities for future growth. Send your
cover letter, resume and a writing sample via
email to info@hatchertebo.com.
Insurance Defense Attorney
Liberty Mutual Insurance is seeking an
Insurance Defense Attorney in the Albuquerque area with a minimum of 4-5 years’
experience in the areas of civil litigation and
workers’ compensation. Interested candidates must be licensed to practice law in the
State of New Mexico. The ideal candidate
is a highly motivated professional that can
take initiative and work independently.
Candidates need to be organized and have
exceptional writing and communication
skills. Competitive salary and comprehensive
benefits package includes 401K and company
paid pension plan. If interested, please search
using requisition # 60132 and post your
resume using the following address: http://
www.careers.libertymutualgroup.com/
Request for Independent
Hearing Officer
City of Albuquerque,
Planning Department
Zoning Hearing Examiner
Liberty Mutual Insurance is seeking an
Insurance Defense Attorney in the Albuquerque area with a minimum of 1-2 years’
experience in civil litigation and workers’
compensation. Interested candidates must be
licensed to practice law in the State of New
Mexico. The ideal candidate is a self-starter
who is highly motivated and can take initiative. Candidates need to be organized and
have exceptional writing and communication
skills. Competitive salary and comprehensive
benefits package includes 401K and company
paid pension plan. If interested, please search
using requisition # 60135 and post your resume using following address: http://www.
careers.libertymutualgroup.com/
The City of Albuquerque wishes to contract for
a Zoning Hearing Examiner (ZHE). The ZHE
shall provide responsive and expert decisionmaking regarding property-owner applications
for special exceptions, including conditional
uses, variances, and expansions of nonconforming uses. In doing so, the ZHE shall ensure
the various perspectives and interests of all
constituents are addressed through the review
of specific, decision-making criteria (City of
Albuquerque Code of Ordinances §14-16-4-2).
This will require proactive and effective communications, strong relationship skills, and an
ability to provide creative and pragmatic legal
decisions. The successful candidate for this
contract shall have a strong foundation in land
use, zoning, and public hearing procedures. The
position requires four or more years’ experience
as a hearing officer or in the practice of administrative law and/or civil law. Local government
experience is preferred. The selected candidate is
preferably a current member of the New Mexico
State Bar, with experience representing land use,
zoning, or development clients. The ZHE reports
directly to the Planning Director, but acts as an
independent hearing officer. Compensation will
be $4,000/month plus gross receipts tax, which
amount includes a commitment to at least one,
all-day public hearing per month, plus the time
necessary for review of applications, testimony,
and evidence, and the preparation of decisions
based on clearly written and complete findings
of fact. The ZHE will receive support from a
Planner and an Administrative Assistant to
facilitate research, advertisements, hearing processes, and notices of decisions. To apply, submit
a cover letter, resume and contact information,
including email addresses for three to five workrelated references, to Suzanne Lubar, Planning
Director, 600 2nd Street NW, Albuquerque, NM
87102 by April 3, 2015.
Affordable Care Act Attorney IV
Assistant District Attorney
The New Mexico Office of Superintendent of
Insurance is seeking an Attorney IV in the
General Counsel Office for the Affordable
Care Act Implementation. Counsel initiates
rulemakings and may provide legal advice
and services directly to the Superintendent
of Insurance in matters not involving adjudicated proceedings. Experience in insurance
law or health law, and/or familiarity with the
Affordable Care Act is desirable. This job is
located in Albuquerque, NM and the annual
salary ranges from $50,898 – $88,525. To apply log on to www.spo.state.nm.us select View
Advertisements, scroll down three pages to
the Search Box and enter Superintendent
of Insurance and the search results will be
posted below the search box. The closing date
for this position is 3/31/15.
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 882016222 or e-mail to jhicks@da.state.nm.us.
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
33
Associate Attorney
Chapman and Charlebois, P.C. is seeking an
experienced insurance defense attorney to join
our litigation team, providing legal analysis,
representation and advice to local and national
clients. Attorney must have 3+ years of insurance defense experience and be licensed in NM.
Please submit resume and salary requirements
to: Roxanna@cclawnm.com.
Paralegal
Peifer, Hanson & Mullins, P.A., is seeking an experienced commercial litigation
paralegal. The successful candidate must be
a detail-oriented, team player with strong
organizational and writing skills. Experience in database and document management
preferred. Please send resume, references and
salary requirements via email to Shannon
Hidalgo at shidalgo@peiferlaw.com.
Paralegal
The Furth Law Firm P.A., a civil litigation and
employment firm in Las Cruces is looking to
hire an energetic paralegal with civil litigation experience and/or an attorney with the
same. We represent employees wrongfully
terminated and those seeking justice. We are
looking for someone who can hit the ground
running, is competitive, wants to help others,
and understands a contingency practice. If
you are interested, please email benfurth64@
yahoo.com with a cover letter and resume.
Legal Secretary
Need smart person to answer telephone,
conduct initial client interviews, file court
pleadings electronically, and maintain
client files. Fluency in Spanish a plus.
Send resume w/ references to: smwarren@
nmconsumerwarriors.com.
Legal Secretary/Assistant
Civil litigation firm seeking Legal Secretary/
Assistant with minimum 3- 5 years’ experience, including knowledge of local court rules
and filing procedures. Excellent clerical, organizational, computer & word processing skills
required. Fast-paced, friendly environment.
Benefits. If you are highly skilled, pay attention to detail & enjoy working with a team,
email resume to: Kay@OnSiteHiring.com
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. Please email resume to:
gromero@hinklelawfirm.com
34
Affordable Care Act Paralegal
The New Mexico Office of Superintendent of
Insurance is seeking a Paralegal and Legal
Assistant Advanced to work with the Affordable Care Act (ACA) counsel. The Paralegal
will assist legal counsel with analyzing federal
law and regulations associated with ACA,
administrative rule making, researching
precedent, investigating facts, prepare legal
documents, modify and edit legislative bills.
This job is located in Albuquerque, NM and
the annual salary ranges from $28,766 $50,045. To apply log on to www.spo.state.
nm.us select View Advertisements, scroll
down three pages to the Search Box and enter
Superintendent of Insurance and the search
results will be posted below the search box.
The closing date for this position is 3/31/15.
Paralegal
Litigation paralegal with background in
large volume document control/management, trial experience, and familiar with
use of computerized databases. This is an
opportunity for a highly motivated, task &
detail-oriented professional to work for an
established, well-respected downtown law
firm. Competitive benefits. Email resume to:
Kay@OnSiteHiring.com
Taos Conference and Office Space
Taos conference and office space available
for depositions and mediations. Call Robyn
575-758-1225
What’s included in your
office rent?
Plaza500 at 201 3rd Street NW offers ready
to go offices that include covered parking
space, VoiP phone and internet, free Wi-Fi,
meeting room hours, 100 B&W copies per
month included, coffee and water service,
professional reception service, 24-hour secure access, utilities and janitorial services.
Drop by or contact Sandee at 505-999-1726/
sgalietti@allegiancesw.com to make an appointment to tour the suite in downtown’s
premier class-A building.
Office Available for Rent
One office available for rent, including secretarial area, 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 505-2436721 or gbischof@dcbf.net
For Sale
Services
Available for Research and
Writing Assignments
Attorney with 7 years appellate court experience available for research and writing
assignments. Reliable and thorough: motions,
briefs, research. Email llhouselaw@gmail.
com or call 505-715-6566 or 505-281-9293.
Office Space
Beautiful, Furnished Office Space
BEAUTIFUL, FURNISHED Office space for
Attorney and secretary/paralegal with onsite parking for staff and clients. Large conference room and kitchen/break room. Experienced attorney for referrals and/or case
association with copy machine,fax,internet
available. Includes janitorial. Call Jim Ellis
505-266 -0800, Corrales,NM.
Brand New All Inclusive Beautiful
Law Offices Available Now!
Starting at only $379 per month! We have
space available in the 500 Marquette building in downtown Albuquerque, the II Park
Square building in Uptown Albuquerque
and the 150 Washington building next to
the Plaza in Santa Fe. Call or email Christina Sharp at Christina.sharp@regus.com
505.203.5754.
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
Estate Planning, Business & Real
Estate Practice For Sale
Have you always wanted to have your own
law firm? Have you developed a few clients,
but not enough to go out on your own? Are
you seeking to expand your practice? This
forty year practicing attorney is seeking to
retire and sell his established law practice.
My practice includes an experienced paralegal with complete client contact for the last
thirteen years, great office space for one or
two lawyers, if desired, an extensive forms
and pleadings library, and a broad client base.
I represent small businesses throughout New
Mexico, prepare Closing documents for a
number of business brokers, and have over
1,300 Will and Trust files to insure a large
client base for the future. I am willing to consult or be “Of Counsel” with the Purchaser
as needed for a seamless transfer of my client
base. My paralegal is willing to stay with the
Purchaser, and has complete familiarity of the
forms developed for the practice. If interested
please contact me at lawpractice4sale@yahoo.
com. All inquiries will be kept confidential.
Miscellaneous
Wanted 1953 and 1941 Statutes
Want to buy complete set of NMSA 1953
and the 1941 New Mexico Statutes. If interested, contact Allen Harvey at aharvey@
mewbourne.com.
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Attorney Firm Listings available
• listed geographically in alpha order
• includes your logo in color, address, email, web address,
and up to 12 practice areas
Space reservation March 31, 2015
To make your space reservation, please contact Marcia Ulibarri
505-797-6058 • mulibarri@nmbar.org
Bar Bulletin - March 18, 2015 - Volume 54, No. 11
35
Congratulations to the team members of
Atkinson & Kelsey, P.A.
for being selected among the
2015 Super Lawyers by
Southwest Super Lawyers Magazine
for their excellence in Family Law.
Jon A. Feder
Virginia R. Dugan
Tatiana Engelmann
Super Lawyer Award
Super Lawyer Award
Rising Star Award
2155 Louisiana Blvd. NE | Suite No. 2000
Albuquerque, NM 87110
Local: 505-883-3070 | Toll-Free: 800-640-3070
www.atkinsonkelsey.com