1. Healthcare

January 28, 2015 • Volume 54, No. 4
Inside This Issue
Table of Contents......................................................3
Second Judicial District Court:
Notice of Procedure Change.................................. 4
13th Judicial District Court:
Volunteers Needed for Monthly Legal Clinics.... 4
Board of Bar Commissioners Appointments
Commission on Professionalism..................... 5
Second Bar Commissioner District................. 5
Justice Pamela B. Minzner Outstanding
Advocacy for Women Award Reception.............. 5
Call For Nominations:
Public Lawyer of the Year Award.......................... 5
Financial Literacy: Save Now for the Future....... 7
Clerk’s Certificates..................................................13
From the New Mexico Supreme Court
2014-NMSC-038, No. 34,531:
State v. Brown.....................................................19
You’re invited!
Balloon Handler at the Balloon Fiesta
by Don Johnson Jr. (see page 3)
3rd Street Arts
Wednesday, Feb. 18 • 4-6 p.m.
See back cover for details.
T
SER
N
I
L
CIA
y
SPE
ctor
BBC
Dire
State Bar of
New Mexico
2015 Licensing
Notification
Your 2015 State Bar licensing fees and certifications
are due now and must be paid by
Feb. 1, 2015, to avoid late fees.
Complete your annual licensing requirements
at www.nmbar.org.
Payment by credit and debit card* are available.
If you have any questions, please call 505-797-6083
or email [email protected].
Online payment by credit and debit card will incur a service charge.
*
2
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
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 • [email protected]
Communications Coordinator
Evann Kleinschmidt
505-797-6087 • [email protected]
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
505-797-6058 • [email protected]
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2015, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: [email protected]. • www.nmbar.org
January 28, 2015, Vol. 54, No. 4
Notices .................................................................................................................................................................4
Financial Literacy: Save Now for the Future.............................................................................................7
Legal Education Calendar..............................................................................................................................8
Writs of Certiorari .......................................................................................................................................... 10
Court of Appeals Opinions List.................................................................................................................. 12
Clerk’s Certificates.......................................................................................................................................... 13
Recent Rule-Making Activity...................................................................................................................... 18
Opinions
From the New Mexico Supreme Court
2014-NMSC-038, No. 34,531: State v. Brown............................................................................... 19
Advertising....................................................................................................................................................... 29
Meetings
State Bar Workshops
January
January
29
Alternative Dispute Resolution Committee,
Noon State Bar Center
28
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
February
31
Consumer Debt/Bankruptcy Workshop
9 a.m., The Law Office of Kenneth Egan,
Las Cruces
3
Health Law Section BOD,
7 a.m., via teleconference
February
3 Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
4
Employment and Labor Law Section BOD,
Noon, State Bar Center
11
Taxation Section BOD,
11 a.m., via teleconference
11
Children’s Law Section BOD,
Noon, Juvenile Justice Center
4
Divorce Options Workshop
6 p.m., State Bar Center
4
Civil Legal Fair
10 a.m.–1 p.m.,
Second Judicial District Court, Third Floor
Conference Room, Albuquerque
12
Business Law Section BOD,
4 p.m., via teleconference
10
Legal Resources for the Elderly Workshop
9:30–10:30 a.m., Presentation
Noon–3 p.m., Clinics
Mary Esther Gonzales Senior Center,
Santa Fe
12
Public Law Section BOD,
Noon, Montgomery and Andrews, Santa Fe
25
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center
13
Animal Law Section BOD,
Noon, State Bar Center
26
Consumer Debt/Bankruptcy Workshop
5:30 p.m., The Law Office of Kenneth Egan,
Las Cruces
13
Prosecutors Section BOD,
Noon, State Bar Center
Cover Artist: Lieutenant Commander Don Johnson Jr. is an attorney at Johnson Family Law PC in Albuquerque. His work
is focused on New Mexico cultural events and his law practice. For more information about Johnson’s artwork, email
[email protected] or visit 3rd Street Arts.
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
3
Notices
Court News
Second Judicial District Court
Professionalism Tip
With respect to my clients:
Mass Reassignment
Gov. Susana Martinez announced the
appointment of Debra Ramirez to fill the
vacancy of Division XXIV at the Second
Judicial District Court. Effective Jan. 9,
Judge Debra Ramirez, was assigned family
court cases previously assigned to Division
VIII. Pursuant to Supreme Court Rule
1-088.1 parties who have not yet exercised
a peremptory excusal will have 10 days
from Feb. 11 to excuse Judge Ramirez.
Notice of Procedure Change
Pursuant to Supreme Court Administrative Order 14-8300-25, newly adopted
LR2-400 NMRA, and LR2-400.1 for the
Special Calendar members of the legal
community should be advised of the following significant changes in procedure.
In the Criminal division, effective Feb. 2,
the vast majority of cases will be reassigned
to different criminal judges. The reassignment of cases was completed by Jan. 23,
with an effective date for reassignment of
Feb. 2. Individual notices of reassignment
will be sent out for all cases in the new
calendar, as well as in all cases, regardless
of whether the case is assigned to the new
calendar or the special calendar, where a
defendant is represented by a member of
the private bar. For all other cases in the
special calendar, a separate email notice
regarding reassignment will be sent to the
Law Offices of the Public Defender and the
District Attorney’s Office.
11th Judicial District Court
Investiture Ceremony for
Bradford J. Dalley
Members of the legal community are
invited to the investiture ceremony for
Hon. Bradford J. Dalley, for the office of
judge of the 11th Judicial District Court.
The ceremony will be at noon, Feb. 19, at
the District Courthouse in Aztec. A reception will follow the ceremony. R.S.V.P. for
the reception to Tanya by Feb. 11 at 505320-5242.
Notice of Mass Reassignment
(San Juan County)
Under the authority of Rule 23-109
NMRA, the Chief Judge of the 11th Judicial District Court directed a mass reassignment of criminal cases effective Jan. 2
from Division I, formerly presided over by
Judge William C. Birdsall, to Division VIII,
Karen L. Townsend, presiding judge. This
4
I will be courteous to and considerate of my client at all times.
is a mass reassignment of criminal cases
only. All other case types currently assigned to Division I will remain in Division
I unless individually reassigned. Pursuant
to Rule 5-106 NMRA, parties who have not
yet exercised a peremptory excusal in a
criminal case being reassigned in this mass
reassignment will have 10 business days
from Jan. 28 to excuse Judge Townsend.
13th Judicial District Court
Notice of Case Reassignments
Gov. Susana Martinez announced the
appointment of Pedro G. Rael to fill the
vacancy in Division IV at the 13th Judicial
District Court, Cibola County, due to the
retirement of Judge Camille Martinez
Olguin. Effective Jan. 19, Judge Rael was
assigned to all cases previously assigned
to Judge Olguin. Pursuant to NMRA
1-088.1, parties who have not yet exercised
a peremptory excusal will have until March
2 to excuse the successor judge. For more
information, contact Chief Clerk Kathy
Gallegos at 505-287-8831, ext. 3110, or
Leadworker Toinette Garcia, ext. 3126.
Volunteers Needed:
The 13th Judicial District Court is
seeking volunteers to help pro se litigants
in its monthly legal clinics. There is little
time commitment. Volunteers are needed
in Cibola, Valencia and Sandoval counties. For more information or to sign up,
contact Staff Attorney Beth Collard at
505-865-2464 or [email protected].
Bernalillo County
Metropolitan Court
Investiture Ceremony of Judge
Kenny C. Montoya
The judges and employees of the
Bernalillo County Metropolitan Court
invite members of the legal community
and the public to attend the investiture
of the Hon. Kenny C. Montoya, Division
XV. The ceremony will be held at 5:15
p.m. on Feb. 12 in the Bernalillo County
Metropolitan Court Rotunda. A reception will follow after in the Metropolitan
Court Jury Assembly Room. Judges who
wish to participate in the ceremony, are
asked to please bring their robes and
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
report to the 1st Floor Viewing Room by
5 p.m.
Mass Reasignment of Cases
Pursuant to Rule 23-109 NMRA,
Bernalillo County Metropolitan Court
Chief Judge Henry A. Alaniz announced
that effective Jan. 20, all criminal court
cases previously assigned to Division III
(previously assigned to Judge Cristina
Jaramillo), were reassigned to newly appointed Judge R. John Duran. Parties
who have not yet exercised a peremptory
excusal, pursuant to Supreme Court Rule
7-106 NMRA, will have 10 business days
from Jan. 20 to excuse Judge Duran.
U.S. District Court for the
District of New Mexico
Attorney Federal Bar Dues
With the concurrence of the Article III
judges of the U.S. District Court for the
District of New Mexico, the Federal Bar
dues have been set at $25 for 2015. Bar
dues may be paid online via CM/ECF. For
more information regarding paying Bar
dues, visit www.nmcourt.fed.us.
State Bar News
Attorney Support Groups
• Feb. 2, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• Feb. 9, 5:30 p.m.
UNM School of Law, 1117 Stanford
NE, Albuquerque, Room 1119 (The
group meets the second Monday of the
month.)
• Feb. 16, 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.
Alternative Dispute
Resolution Committee
CLE and Meeting
Mark Bennett will present a one-hour
CLE, “Understanding Different Approaches to Mediation,” (1.0 EP) after the
noon business meeting of the Alternative
Dispute Resolution Committee on Jan. 29
at the State Bar Center. The presentation
will provide a structure to consider the
range of approaches to mediation and
the application of basic ethical principles.
There is a special discounted price of $30
for ADR Committee attorney members;
$50 for non-Committee attorneys; and free
for non-attorneys, for this particular CLE.
Lunch will be served at noon during the
business portion of the meeting, followed
by the presentation. Register/RSVP to
505-797-6020.
Animal Law Section
February Animal Talk on
Pending Legislation
The Animal Law Section’s first Animal
Talk of the year will be at noon on Feb. 20
at the State Bar Center. Section Chair Guy
Dicharry will talk about pending legislation related to animal law issues. Beverages
and cookies will be provided. R.S.V.P. to
Evann Kleinschmidt, ekleinschmidt@
nmbar.org by Feb. 19.
Board of Bar Commissioners
Appointment to the
Commission on Professionalism
The Board of Bar Commissioners will
make one appointment for a non-lawyer
public member to the Commission on
Professionalism for a two-year term. Nonlawyer public members who want to serve
on the Commission should send a letter
of interest and brief résumé to Executive
Director Joe Conte, State Bar of New
Mexico, P.O. Box 92860, Albuquerque,
NM 87199-2860; fax to 828-3765; or
e-mail to [email protected]. The deadline
is Jan. 30.
Commissioner Vacancy
Second Bar Commissioner District
(Cibola, McKinley, San Juan and
Valencia counties)
A vacancy exists in the Second Bar
Commissioner District, representing
Cibola, McKinley, San Juan and Valencia
counties, due to Bradford J. Dalley’s
appointment to the Bench. The Board
will make the appointment at its Feb.
27 meeting to fill the vacancy until the
next regular election of Commissioners, and the term will run through Dec.
31, 2015. Active status members with
a principal place of practice located in
the Second Bar Commissioner District
are eligible to apply. Applicants should
plan to attend the 2015 Board meetings
scheduled for May 8, July 10, Sept. 30
(Colorado Springs in conjunction with
the Annual Meeting), and Dec. 9 (Santa
Fe). Members interested in serving on
the Board should submit a letter of interest and résumé to Executive Director Joe
Conte, State Bar of New Mexico, PO Box
92860, Albuquerque, NM 87199-2860,
by Feb. 13.
Committee on Women and
the Legal Profession
Reception for the Justice Pamela
B. Minzner Outstanding Advocacy
for Women Award
Join the State Bar Committee on
Women and the Legal Profession in presenting the 2014 Justice Pamela B. Minzner
Outstanding Advocacy for Women Award
to attorney Jane Rowe for her outstanding
advocacy for women in conjunction with
Saranam, an Albuquerque non-profit
providing housing and education services
to families transitioning out of homelessness. The award reception will be held
5:30–8:30 p.m., Jan. 29, at Hotel Andaluz
in downtown Albuquerque. Hors d’oeuvres
will be provided by the Committee and a
cash bar will be available. R.S.V.P. to Evann
Kleinschmidt at ekleinschmidt@nmbar.
org.
Public Law Section
Accepting Nominations for Annual
Public Lawyer Award
The Public Law Section is accepting
nominations for the Public Lawyer of
the Year Award, which will be presented
at the state capitol on May 1. Visit http://
www.nmbar.org/Nmstatebar/About_
Us/Public_Law/Lawyer_of_the_Year_
Awards.aspx to view previous recipients
and award criteria. Nominations are
due no later than 5 p.m. on March 2.
Send nominations to James Martin, 105
Pine St., Santa Fe, NM 87501, or email
[email protected]. The selection
committee will consider all nominated
candidates and may nominate candidates
on its own.
Young Lawyers Division
Volunteers Needed for
UNM Mock Interview Program
The Young Lawyers Division is seeking
volunteer attorneys to serve as interviewers from 9–11 a.m., Saturday, Jan. 31, for
its annual UNM School of Law Mock
Featured
Member Benefit
Auto and Home Insurance
SBNM members receive an exclusive group
discount off already competitive rates, extra
savings for insuring both car and home, and
discounts based on driving experience, car
and home safety features and much more.
Contact Edward Kibbee,
(505) 323-6200 ext. 59184, or visit
www.libertymutual.com/edwardkibbee.
Address Changes
All New Mexico attorneys must notify
both the Supreme Court and the State
Bar of changes in contact information.
Supreme Court
Email:attorneyinfochange
@nmcourts.gov
Fax: 505-827-4837
Mail:PO Box 848
Santa Fe, NM 87504-0848
State Bar
Email: [email protected]
Fax: 505-797-6019
Mail: PO Box 92860
Albuquerque, NM 87199
Online:www.nmbar.org
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org/JLAP/JLAP.html
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
5
Interview Program. The mock interviews
and coordinated critiques of résumés and
cover letters assist UNM law students
with preparation for job interviews.
Judges and attorneys from all practice
areas, both public and private sectors,
are needed. A brief training session will
be held at 8:30 a.m. at the UNM School
of Law preceding the interviews, and
breakfast will be provided. To volunteer,
contact YLD Board Member Spencer
Edelman, [email protected], or 505-8481857 immediately.
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
other bars
Albuquerque Lawyers Club
February Lunch Meeting
The Albuquerque Lawyers Club invites members of the legal community
to its 2015 monthly meetings. Benny
Naranjo is the featured speaker and
will present “The 1967 Tierra Amarilla
Courthouse Raid—What Led To It, What
Followed, and How I Survived It.” He will
be introduced by Geoff Nims, currently a
hearing officer for the 13th Judicial District. The lunch meeting will be held at
noon, Feb. 4, at Seasons Restaurant, 2031
Mountain Road NW, Albuquerque. Cost:
Free to members; $30 for non-members.
For more information, email ydennig@
Sandia.gov or call 505-844-3558.
American Bar Association
Dispute Resolution Section
Annual Conference
The American Bar Association’s Dispute Resolution Section will hold its
annual spring conference from April
15–18 in Seattle. Early bird rates are
effective until Feb. 20. For more informa-
6
tion, visit http://shop.americanbar.org/
ebus/ABAEventsCalendar/EventDetails.
aspx?productId=137037024.
Opportunity To Write for ABA’s
‘Litigation News’
The American Bar Association Litigation Section’s national newsmagazine,
Litigation News, seeks excellent writers
interested in joining the editorial board as
contributing editors. Contributing editors
write four articles per year and attend two
ABA conferences. This is a great opportunity for members of the legal community to
get their name out there and connect with
attorneys across the country. Litigation
News is published quarterly in print, and
adds stories at least weekly to its online version. Its print circulation exceeds 50,000.
Those interested should send a résumé
and writing sample to LitNewsWriteOn@
gmail.com by Feb. 13. We will notify those
applicants selected to participate in our
annual write-on competition by March 1.
You do not need to be an ABA member to
participate in the writing competition, but
do need to join the organization to serve as
a contributing editor.
Federal Bar Association,
El Paso Chapter
Border Law Conference
The El Paso Chapter of the Federal
Bar Association presents the Border Law
Conference on Jan. 30–31, at the Tomás
Rivera Conference Center at the University
of Texas at El Paso. The course addresses
the unique practice of business, criminal,
family, labor, employment and immigration law on the southern border. Speakers
include Chief Judge Christina Armijo,
Judge Robert Brack, Nancy Oretskin and
Olsi Vrapi. The program is approved for
14.25 Texas CLE credits (New Mexico
MCLE approval pending). State Bar of
New Mexico Immigration Law Section
members will receive special FBA rates.
For more information or to register, visit
http://www.fedbar.org/2015-Border-Law.
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, distin-
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
guished 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 Trial Lawyers
Association
CLE Opportunity
Join the New Mexico Trial Lawyers
Association for “Hanging Up Your Own
Shingle Seminar” (5.2 G, 1.0 EP) on Jan. 30
in Albuquerque. For more information, call
505-243-6003 or visit www.nmtla.org.
other news
Volunteer Attorney Program
Representing Victims of
Violence CLE
The Volunteer Attorney Program is
hosting a CLE entitled “Representing
Victims of Violence at Order of Protection Hearings” (2.0 G, pending MCLE
approval) from 1:30 –3:30 p.m., Feb. 20,
at the State Bar Center. The CLE will
be presented by Hon. Debra Ramirez,
Second Judicial District Family Court
Judge, and Rosemary Traub, New Mexico
Legal Aid attorney. The CLE is free for
VAP volunteers. Donations welcome from
non-volunteers ($50 or more per person
suggested). To attend this CLE, contact
Aja Brooks at 505-797-6040 or ajab@
nmlegalaid.org.
Submit
announcements
for publication in
the Bar Bulletin to
[email protected]
g
by noon Monday
the week prior
to publication.
Financial Literacy:
Save Now for the Future
By D.D. Wolohan
Attendees at the Committee on Women and the Legal Profession’s
free financial literacy workshop on Jan. 14 at the State Bar Center
centered on five strategies for retirement. Presenters Devona
Benavidez and Renee Gwyther focused on helping people take
control of their financial future as the burden has shifted away
from companies (think: pensions) to individuals. Geared toward
women but with a message for all, the strategies are:
1. Maximize your 401(k) and IRA contributions. Do not leave
an employer’s match of funds sitting on the table unused.
That’s throwing free money away. Also, for the price of one
latte, if you put $5 each day into a retirement account, you
would have nearly $142,000 after 25 years.
2. As retirement costs are rising, make sure your investment has
the growth potential necessary to keep up with these rising
costs. The presenters noted that women spend nearly three
Renee Gwyther, left, and Devona Benavidez
times what men spend on long-term care services: $124,000
vs. $44,000, and that long-term care facilities currently cost
$6,000 to $8,000 monthly. In the long term, stocks have positive returns, Benavidez noted.
3. Take full advantage of your Social Security benefits. You might strongly consider waiting until age 70 to begin drawing those
benefits. For example, if you would receive $1,000 at age 66, if you took the benefit at age 62 you would only receive $750 monthly,
whereas you’d receive $1,320 monthly beginning withdrawals at age 70. Gwyther also recommended capitalizing on spousal
benefits to maximize overall income.
4. Guarantee more income. Because women outlive men by an average of five years, you’ll need to plan to save more. Social Security
only replaces about 40 percent of your pre-retirement income.
5. Prepare for unexpected events—divorce or death of spouse. You’ll need a safety net and should consider life insurance, long-term
care and an emergency fund in a savings account, which is liquid and readily accessible. Plan to have at least three to six months
of living expenses in a savings account. Some people might feel more comfortable with a year’s worth of expenses saved.
Their bottom line: Start early on saving money and be consistent. Whatever you do, do not neglect an employer’s match of funds.
Plan to keep on planning and prioritize what you can give and take on, for instance saving for your retirement vs. contributing to a
529 education account for children. Verify who the beneficiaries are on your accounts and keep the information current. Strive for a
balance in your safety net, as withdrawing money from a 401(k) has financial consequences that a savings account does not. Be aware
of your financial resources, but know that you don’t have to become the expert. That’s why there are advisers.
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
7
Legal Education
January
28
Ground Leases in Real Estate
Transactions
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
Ethics, Disqualifications &
Sanctions
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
30
102014 Fall Elder Law Institute
The Complexities of the Special
Needs Trust: Drafting, Funding and
Implementation
4.5 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
12
29
ADR Series: Understanding
Different Approaches to Mediation
1.0 EP
Live Seminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Hanging Up Your Own Shingle
Seminar
5.2 G, 1.0 EP
Albuquerque
New Mexico Trial Lawyers’
Foundation
505-243-6003
www.nmtla.org
February
3
Estate Planning for Digital Assets
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
4
Buying & Selling Partnership/LLC
Interest- Economic, Management &
Tax Issues
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
5
Ethics, Email and Law Practice
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
9
Warrants, Options & Other
Incentives in Business Transactions
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
25th Annual Appellate Practice
Institute (2014)
5.7 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
8
10
Civil Procedure Update and Recent
Developments in the U.S. Supreme
Court (2014)
3.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Law Practice Succession—A Little
Thought Now, a Lot Less Panic
Later (2014)
2.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
10
10–11 Ethics Update, Parts 1–2
2.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
Estate & Trust Planning for
Educational Expenses
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
13
Management Agreements in Real
Estate
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
16
2015 Nonprofit/Exempt
Organization Update
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17
25th Annual Real Property Institute
(2014)
5.5 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17
Technology in the Courts (2014)
5.2 G, 1.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
Legal Education
www.nmbar.org
February
Representing Victims of Violence at
Order of Protection Hearings
2.0 G
Albuquerque
Volunteer Attorney Program
502-797-6040
[email protected]
19
Duress & Undue Influence in Estate
& Trust Planning
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
20
20
The Ethics of Billing & Collecting
Attorneys’ Fees
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
24
Drafting Independent Contractor
Agreements
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
3
Estate Planning for Farms and
Ranches
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
12
Ethical Issues When Representing
the Elderly
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
24-25 Sub-leasing & Assignments,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
5
Spotting & Preventing Fraud in
Real Estate Transactions
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
17-18 Fundamentals of Securities Law,
Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
31
10
23
Ethics for Transactional Lawyers
1.0 EP
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
17
‘Technethics’: Ethical Issues in
Social Media and Other New
Technologies (2014)
3.0 EP
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17
Supreme Court Case Update and
New Rules Process (2014)
2.0 G
Video Replay
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
17–18 Drafting C and S Corp Stockholder
Agreements, Parts 1–2
2.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbar.org
March
Reviewing and Drafting IT
Agreements
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
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.nmbarcle.org
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
9
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 January 16, 2015
Petitions for Writ of Certiorari Filed and Pending:
No. 35,080
No. 35,079
No. 35,076
No. 35,073
No. 35,070
No. 35,069
No. 35,077
No. 35,066
No. 34,995
No. 35,065
No. 35,064
No. 35,063
No. 35,060
No. 35,062
No. 35,061
No. 35,059
No. 35,058
No. 35,057
No. 35,056
No. 35,054
No. 35,050
No. 35,038
No. 35,035
No. 35,046
No. 35,040
No. 35,039
No. 35,037
No. 35,029
No. 35,016
No. 35,011
No. 35,010
No. 35,005
No. 35,068
No. 34,974
No. 34,949
No. 34,937
No. 34,932
No. 34,928
No. 34,881
No. 34,913
No. 34,907
No. 34,885
No. 34,878
No. 34,796
10
Date Petition Filed
State v. Barela
COA 34,034 01/13/15
State v. McKnight
COA 33,872 01/12/15
Begay v. Consumer Direct COA 33,288 01/09/15
State v. Butler
COA 33,696 01/09/15
State v. Acosta
12-501 01/08/15
Arencon v.
City of Albuquerque
COA 33,196 01/08/15
State v. Montoya
COA 33,975 01/06/15
State v. Garcia
COA 33,930 01/05/15
State v. Deangelo M.
COA 31,413 01/05/15
State v. Schaublin
COA 32,929 01/02/15
State v. Martin
COA 34,045 01/02/15
State v. Carroll
COA 32,909 12/30/14
Medina v. State
12-501 12/30/14
State v. Eduardo L.
COA 33,620 12/29/14
State v. Martinez
COA 33,809 12/29/14
State v. Larranaga
COA 33,629 12/26/14
State v. Truong
COA 33,873 12/26/14
State v. Williams
COA 33,863 12/26/14
State v. Elebario
COA 33,874 12/26/14
State v. Saienni
COA 33,013 12/23/14
State v.
COA 32,110/32,109 12/22/14
Hernandez
Response ordered; due 2/2/15
State v. Garnenez
COA 34,120 12/19/14
State v. Stephenson
COA 31,273 12/18/14
Ramirez v. Ortiz
12-501 12/15/14
Montoya v. Wrigley
12-501 12/15/14
Ramirez v. Hatch
12-501 12/15/14
Graham v. Hatch
12-501 12/15/14
State v. Abeyta
COA 33,485 12/12/14
State v. Baca
COA 33,626 12/03/14
Segura v. Franco
12-501 12/03/14
Chavez v. State
12-501 12/03/14
State v. Archuleta
COA 32,794 11/26/14
Jessen v. Franco
12-501 11/25/14
Moses v. Skandera
COA 33,002 11/12/14
Responses filed 12/1/14
State v. Chacon
COA 33,748 10/27/14
Response filed 10/31/14
Pittman v.
N.M. Corrections Dept.
12-501 10/20/14
Gonzales v. Sanchez
12-501 10/16/14
State v. Luevano
COA 31,741 10/14/14
Response ordered; due 1/26/15
Paz v. Horton
12-501 10/08/14
Finnell v. Horton
12-501 09/22/14
Cantone v. Franco
12-501 09/11/14
Savage v. State
12-501 09/08/14
O’Neill v. Bravo
12-501 08/26/14
Miller v. Ortiz
12-501 08/08/14
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
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
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 2/2/15
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 2/2/15
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
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
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) Date Writ Issued
No. 33,725 State v. Pasillas
COA 31,513 09/14/12
No. 33,837 State v. Trujillo
COA 30,563 11/02/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 33,994 Gonzales v. Williams
COA 32,274 08/30/13
No. 33,863 Murillo v. State
12-501 08/30/13
No. 33,810 Gonzales v. Marcantel
12-501 08/30/13
No. 34,363 Pielhau v. State Farm
COA 31,899 11/15/13
No. 34,274 State v. Nolen
12-501 11/20/13
COA 32,139 12/20/13
No. 34,400 State v. Armijo
No. 34,443 Aragon v. State
12-501 02/14/14
No. 34,549 State v. Nichols
COA 30,783 03/28/14
No. 34,522 Hobson v. Hatch
12-501 03/28/14
No. 34,582 State v. Sanchez
COA 32,862 04/11/14
No. 34,637 State v. Serros
COA 31,975 05/01/14
No. 34,694 State v. Salazar
COA 33,232 06/06/14
No. 34,669 Hart v. Otero County Prison 12-501 06/06/14
No. 34,650 Scott v. Morales
COA 32,475 06/06/14
No. 34,630 State v. Ochoa
COA 31,243 06/06/14
No. 34,789 Tran v. Bennett
COA 32,677 08/01/14
No. 34,769 State v. Baca
COA 32,553 08/01/14
Writs of Certiorari
No. 34,786
No. 34,784
No. 34,805
No. 34,798
No. 34,843
No. 34,834
No. 34,772
No. 34,726
No. 34,668
No. 34,855
No. 34,728
No. 34,812
No. 34,886
No. 34,866
No. 34,854
No. 34,830
No. 34,826
No. 34,997
No. 34,993
No. 34,978
No. 34,946
No. 34,945
No. 34,940
No. 34,929
State v. Baca
COA 32,523
Silva v. Lovelace Health
Systems, Inc.
COA 31,723
King v.
Behavioral Home Care
COA 31,682
State v. Maestas
COA 31,666
State v. Lovato
COA 32,361
SF Pacific Trust v.
City of Albuquerque
COA 30,930
City of Eunice v. N.M. Taxation
and Revenue Dept.
COA 32,955
Deutsche Bank v.
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
08/01/14
No. 34,499
08/01/14
No. 34,546
08/15/14
08/15/14
08/29/14
No. 34,271
No. 34,435
No. 34,447
No. 34,295
No. 34,501
No. 34,607
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
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,548 State v. Marquez
COA 30,565 04/15/13
No. 33,808 State v. Nanco
COA 30,788 08/14/13
No. 33,862 State v. Gerardo P.
COA 31,250 08/14/13
No. 33,969 Safeway, Inc. v.
Rooter 2000 Plumbing COA 30,196 08/28/13
No. 33,898 Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088 09/11/13
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
COA 31,421 11/14/13
No. 34,013 Foy v. Austin Capital
No. 34,085 Badilla v. Walmart
COA 31,162 12/04/13
No. 34,146 Madrid v.
Brinker Restaurant
COA 31,244 12/09/13
No. 34,093 Cordova v. Cline
COA 30,546 01/15/14
No. 34,194/34,204
King v. Faber
COA 34,116/31,446 02/24/14
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297 03/26/14
No. 34,120 State v. Baca
COA 31,442 03/26/14
No. 34,122 State v. Steven B. consol. w/
State v. Begaye
COA 31,265/32,136 08/11/14
No. 34,286 Yedidag v.
Roswell Clinic Corp.
COA 31,653 08/11/14
No. 34,554
No. 34,516
No. 34,613
No. 34,476
No. 34,764
No. 34,548
No. 34,526
Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330
N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026
State v. Silvas
COA 30,917
State v. Strauch
COA 32,425
Loya v. Gutierrez
COA 32,405
Dominguez v. State
12-501
Snow v. Warren Power
COA 32,335
Lucero v.
Northland Insurance
COA 32,426
Miller v. Bank of America COA 31,463
State v. Sanchez
COA 32,994
Ramirez v. State
COA 31,820
State v. Pfauntsch
COA 31,674
State v. Slade
COA 32,681
State v. Davis
COA 28,219
State v. Paananen
COA 31,982
08/13/14
08/13/14
08/25/14
08/27/14
08/27/14
09/24/14
10/01/14
10/29/14
11/10/14
12/17/14
12/17/14
12/17/14
01/12/15
01/14/15
01/14/15
Opinion on Writ of Certiorari:
No. 34,311
No. 34,365
State v. Favela
Potter v. Pierce
Date Opinion Filed
COA 32,044 01/12/15
COA 31,595 01/08/15
Petition for Writ of Certiorari Denied:
No. 34,931
No. 35,055
No. 35,051
No. 35,048
No. 35,047
No. 35,044
No. 35,042
No. 35,041
No. 35,043
No. 35,032
No. 35,031
No. 35,030
No. 35,028
No. 35,026
No. 35,022
No. 35,013
No. 34,964
No. 34,962
No. 34,633
No. 34,571
No. 35,025
No. 35,024
No. 35,023
No. 35,018
No. 35,017
No. 35,007
No. 35,006
No. 35,004
No. 34,999
No. 34,916
Date Order Filed
Perry v. Franco
12-501 01/16/15
State v. Whitted
COA 33,939 01/15/15
State v. Rigel
COA 33,586 01/15/15
State v. Davis
COA 33,683 01/15/15
State v. Lavail
COA 33,793 01/15/15
State v. Lowe
COA 33,848 01/15/15
State v. Thompson
COA 33,321 01/15/15
State v. Skippings
COA 32,990 01/15/15
Khalsa v. Puri
COA 32,600 01/14/15
State v. Ortiz
COA 31,049 01/14/15
State v. Garcia
COA 33,818 01/14/15
State v. James
COA 33,507 01/14/15
State v. Gonzalez COA 33,942/33,882 01/14/15
Boyd v. United States
COA 32,119 01/14/15
Dills v.
N.M. Heart Institute
COA 33,725 01/14/15
State v. Maldonado
COA 33,403 01/14/15
Segura v. Van Dien
COA 32,656 01/14/15
Jones v. Auge
COA 32,178 01/14/15
Vespender v. Janecka
12-501 01/14/15
Fresquez v. State
12-501 01/14/15
State v. Noriega
COA 33,323 01/07/15
State v. Begaye
COA 33,677 01/07/15
State v. Richard S.
COA 33,938 01/07/15
State v. Tafoya
COA 33,556 01/07/15
State v. Padilla
COA 33,830 01/07/15
State v. Nabhan
COA 32,780 01/07/15
State v. Brito
COA 33,827 01/07/15
State v. Olague
COA 33,422 01/07/15
State v. Graham
COA 33,366 01/07/15
State v. Duran
COA 33,271 01/07/15
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
11
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 January 16, 2014
Published Opinions
No. 33341 9th Jud Dist Curry JQ-09-7, CYFD v JERRY K (affirm)
01/12/2015
No. 33154 WCA-11-673, M MAEZ v RILEY INDUSTRIAL (reverse)
01/13/2015
No. 32872 2nd Jud Dist Bernalillo LR-09-30, STATE v CHAKERIAN (reverse and remand)
01/14/2015
No. 33446 WCA-12-01425, F DI LUZIO v CITY OF SANTA FE (affirm in part, reverse in part and remand)
01/14/2015
Unublished Opinions
No. 33199 2nd Jud Dist Bernalillo CR-09-4019, STATE v E KUPFER (affirm)
01/12/2015
No. 33441 1st Jud Dist Santa Fe CV-10-4296, A FIRSTENBERG v CITY OF SANTA FE (affirm)
01/12/2015
No. 33796 2nd Jud Dist Bernalillo LR-12-14, STATE v M GARCIA (affirm)
01/12/2015
No. 33862 2nd Jud Dist Bernalillo LR-12-41, STATE v S DURAN (affirm)
01/12/2015
No. 33870 2nd Jud Dist Bernalillo LR-11-45, STATE v A DELAO (affirm)
01/12/2015
No. 33924 4th Jud Dist Guadalupe CV-13-33, P CAIN v E BRAVO (dismiss)
01/12/2015
No. 33999 11th Jud Dist San Juan DM-12-705, H TITUS v M TITUS (affirm)
01/12/2015
No. 34019 1st Jud Dist Santa Fe CV-14-1303, R ORDUNO v M TIERNEY (affirm)
01/12/2015
No. 34022 3rd Jud Dist Dona Ana CV-13-864, DISCOVER BANK v P BAWOL (affirm)
01/12/2015
No. 34021 3rd Jud Dist Dona Ana CV-12-2688, DISCOVER BANK v P BAWOL (affirm)
01/13/2015
No. 33106 3rd Jud Dist Dona Ana CR-12-190, STATE v A VENEGAS-DIAZ (affirm)
01/14/2015
No. 33864 12th Jud Dist Otero CV-13-447, TINSLEY TRAILER v D CEPEDA (affirm)
01/14/2015
No. 33991 11th Jud Dist San Juan JQ-12-4, CYFD v ANGIE D (affirm)
01/14/2015
No. 34030 2nd Jud Dist Bernalillo CV-13-890, IN THE MATTER OF HANNA R (dismiss)
01/14/2015
No. 34055 5th Jud Dist Eddy CR-08-42, STATE v V MELENDEZ (dismiss)
01/14/2015
No. 32987 2nd Jud Dist Bernalillo LR-10-8, STATE v G RENTERIA-LOPEZ (affirm)
01/15/2015
No. 33469 2nd Jud Dist Bernalillo JQ-10-125, CYFD v AMY B (affirm)
01/15/2015
No. 33562 5th Jud Dist Chaves JQ-12-15, CYFD v LESLIE K (affirm)
01/15/2015
No. 33805 3rd Jud Dist Dona Ana CR-12-430, STATE v M MEDINA (affirm)
01/15/2015
No. 33868 2nd Jud Dist Bernalillo CR-12-4216, STATE v A VALENZUELA (affirm)
01/15/2015
No. 34023 11th Jud Dist McKinley CV-12-272, J CORRAL v NMDOWFS (dismiss)
01/15/2015
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
12
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Dated December 30, 2014
Mark F. Swanson
Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
Albuquerque, NM 87102
505-835-1530
505-796-4661 (fax)
[email protected]
Hon. David K. Thomson
First Judicial District Court
PO Box 2268
225 Montezuma Avenue
(87501)
Santa Fe, NM 87504-2268
505-455-8215
505-455-8323 (fax)
Jocelyn M. Torres
N.M. Children, Youth
& Families Dept.
300 San Mateo Blvd. NE,
Suite 200
Albuquerque, NM 87108
505-841-6515
505-841-6524 (fax)
[email protected]
Hon. Courtney Bryn Weaks
Bernalillo County
Metropolitan Court
PO Box 133
401 Lomas Blvd. NW (87102)
Albuquerque, NM 87103-0133
505-841-8285
Patricia Ann Bradley
Patricia Bradley Law
10400 Academy Road NE,
Suite 350
Albuquerque, NM 87111
505-842-8188
505-842-8180 (fax)
[email protected]
Clerk’s Certificate of
Admission
On December 23, 2014:
Heidi Lyn Adams
Potter County Attorney’s
Office
500 South Fillmore Street,
Room 301
Amarillo, TX 79101
806-379-2255
Gail Chasey
315 Fifth Street NW
Albuquerque, NM 87102
505-246-2221
[email protected]
Sarae T. Leuckel
30420 Pickle
Bulverde, TX 78163
505-699-0004
[email protected]
Maria Zannes
10422 Huebner Road, #2502
San Antonio, TX 78240
505-400-9747
[email protected]
Mary Martha Chicoski
Glasheen, Valles
& Inderman LLP
300 Central Avenue SW,
Suite 1000
Albuquerque, NM 87102
505-243-7200
[email protected]
Rosario D. Vega Lynn
PO Box 65513
Albuquerque, NM 87193-5513
505-227-5091
505-299-0518 (fax)
[email protected]
Erika Anderson
Law Offices of Erika E.
Anderson
500 Marquette Avenue NW,
Suite 500
Albuquerque, NM 87102
505-843-7075
Ruth Davey
11438 N. Silver Pheasant Loop
Tucson, AZ 85737
520-742-3350
[email protected]
Martha Clark Franks
PO Box 1983
Fort Collins, CO 80522-1983
505-247-9011
[email protected]
Jay D. Hill
Jay Hill Ltd.
814 Southeast Circle NW
Albuquerque, NM 87104
505-217-9535
[email protected]
Robert M. Janes
7201 RR2222, Apt. 2221
Austin, TX 78730
Brett Justin Olsen
Abramowitz, Franks & Olsen
PO Box 1983
515 S. Howes Street (80521)
Fort Collins, CO 80522-1983
505-247-9011
[email protected]
Nancy A. Rath
PO Box 1131
Addison, TX 75001-1131
[email protected]
Stella M. Scott
11024 Montgomery Blvd. NE,
Suite 120
Albuquerque, NM 87111
Lisa A. Torraco
Torraco Law
620 Roma Avenue NW
Albuquerque, NM 87102
505-244-0530
[email protected]
Scott Allen Klundt
30721 Hilltop Drive
Evergreen, CO 80439
Susan Herrera Widner
Widner Law Firm, LLC
509 Marble Avenue NW
Albuquerque, NM 87102
505-377-6331
505-213-0777 (fax)
[email protected]
On December 26, 2014:
Brian Mathison
PO Box 12
West Point, NY 10096
530-312-3012
[email protected]
On December 23, 2014:
Sage Margot Morris-Greene
2867 South Spur Road
Santa Fe, NM 87505
505-660-7715
[email protected]
Eric D. Norvell
Norvell Werenko, PA
117-F Richmond Drive SE
Albuquerque, NM 87106
505-717-2857
505-506-1442 (fax)
[email protected]
Hon. Bruce C. Fox
Pueblo of Laguna
PO Box 194
Laguna, NM 87026-0194
505-552-1900
505-552-7186 (fax)
Colbert N. Coldwell
Guevara, Baumann, Coldwell
& Reedman LLP
4171 N. Mesa, Suite B-201
El Paso, TX 79902
915-544-6646
915-544-8305 (fax)
[email protected]
On December 29, 2014:
Eric Meister Templeton
PO Box 270372
San Diego, CA 92198
619-600-0180
[email protected]
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
13
Clerk’s Certificates
Clerk’s Certificate
of Withdrawal
Effective December 18, 2014:
Susan I. Brown
PO Box 894
Placitas, NM 87043-0894
Effective December 31, 2014:
Lawrence Michael Glenn
9440 Allande Road NE
Albuquerque, NM 87109
Effective January 1, 2015:
Fred A. Helms
11411 Ranch Road 620 North
Austin, TX 78726
Effective December 22, 2014:
Thomas J. Horan
510 Laguna Blvd. SW
Albuquerque, NM 87104
Effective December 31, 2014:
Russell E. Jones
5210 East Williams Circle
Tucson, AZ 85711
Effective December 31, 2014:
George H. Libman
7327 E. Vuelta Rancho
Mesquite
Tucson, AZ 85715
Clerk’s Certificate of
Withdrawal
Effective December 23, 2014:
Donald W. Garland
4007 Fiesta Drive
Las Cruces, NM 88005
Effective December 30, 2014:
Laura M. Goldsmith
6530 W. Dufferin Court
Boise, ID 83714
Clerk’s Certificate of
Admission
On January 12, 2015:
Jason B. Hamm
Brockett & McNeel LLP
PO Box 1841
24 Smith Road, Suite 400
(79705)
Midland, TX 79702-1841
432-686-7743
432-683-6229 (fax)
[email protected]
14
Effective December 31, 2014:
Richard B. McClarkin
1605 Granite NW
Albuquerque, NM 87104
Effective December 31, 2014:
Charles W. Sullivan III
PO Box 3573
Albuquerque, NM 87190-3573
In Memoriam
As of December 12, 2014:
Richard R. Romo
5244 Second Street NW
Albuquerque, NM 87107
As of December 20, 2014:
James E. Womack
1600 Moon NE
Albuquerque, NM 87112
Clerk’s Certificate
of Reinstatement
to Active Status
As of January 2, 2015:
Eric Ames
PO Box 195
933 San Mateo Blvd. NE,
Suite 500 (87108)
Albuquerque, NM 87103-0195
575-741-1231
[email protected]
Mario Franke
10501 Candlewood Avenue
El Paso, TX 79925
915-590-4445
[email protected]
Michael Keeley
Strasburger & Price, LLP
901 Main Street, Suite 4300
Dallas, TX 75202
214-651-4718
Jennifer Michelle Perkins
Mandel Young, PLC
3001 E. Camelback Road,
Suite 140
Phoenix, AZ 85016
602-424-9578
Jennifer Jehl Pruett
N.M. State Land Office
PO Box 1148
310 Old Santa Fe Trail
(87501)
Santa Fe, NM 87504-1148
505-827-5756
[email protected]
Effective December 11, 2014:
Mark Gerald Shoesmith
9208 Benjamin Place NE
Albuquerque, NM 87122
Clerk’s Certificate
of Change to
Inactive Status
Effective December 15, 2014:
Rebecca R. Niose
1309 Childers Drive NE
Albuquerque, NM 87112
Effective December 10, 2014:
Cynthia S. Sully
3425 Chevy Chase Street
Eugene, OR 97401
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
Effective December 31, 2014:
Mary Dickman
PO Box 26147
1011 Indian School Rd. NW,
Room 322 (87104)
Albuquerque, NM 87125-6147
Joseph Newton Riggs III
PO Box 804
Tesuque, NM 87574-0804
James M. Rosel
9531 Callaway Circle NE
Albuquerque, NM 87111
Effective January 1, 2015:
James Clarence Babin
6616 Suerte Place NE
Albuquerque, NM 87113
Hon. Richard James Smith
PO Box 1592
Santa Fe, NM 87504-1592
Effective January 1, 2015:
Herbert Arnold Becker
2016 Gabaldon Drive NW
Albuquerque, NM 87104
On January 5, 2015:
April Ann Quinn
Navajo Nation Department of
Justice Natural Resources Unit
PO Box 2010
Window Rock, AZ 86515
928-871-6347
928-871-6177 (fax)
e-mail: [email protected]
Effective December 1, 2014:
B. Tommy Roberts
PO Box 129
Farmington, NM 87499-0129
Clerk’s Certificate
of Change to Inactive
Status
Effective December 14, 2014:
Jonathan D. Marseglia
1342 Ketzal Drive
Trinity, FL 34655
Effective December 15, 2014
Ian David Quinn
40 North Central Avenue,
Suite 1400
Phoenix, AZ 85004
Effective December 16, 2014:
Carol Graebner
Direct Energy
12 Greenway Plaza, Suite 250
Houston, TX 77046
Effective December 16, 2014:
Julie R. Kipp
University of Wisconsin Milwaukee
PO Box 413
Milwaukee, WI 53201-0413
December 18, 2014:
Spencer Keith Despain
413 Pruitt Avenue
Los Alamos, NM 87544
Arlon Lee Parish
PO Box 2338
Las Cruces, NM 88004-2338
Peggy A. Whitmore
132 Carlito Road NW
Albuquerque, NM 87107
Effective December 19, 2014:
Blaise Supler
6508 Casper Ridge
El Paso, TX 79912
Clerk’s Certificates
Effective December 19, 2014:
Victoria Winterberg
Diocesan Migrant & Refugee
Services, Inc.
2400A East Yandell Drive
El Paso, TX 79903
Effective December 20, 2014:
Judith A. Olean
1420 Richmond Drive NE
Albuquerque, NM 87106
Effective December 21, 2014:
Ronald C. Norman
4721 Oahu Drive NE
Albuquerque, NM 87111
Effective December 22, 2014:
Jason J. Rudd
Anderson Banducci, PLLC
101 S. Capitol Blvd., Suite 1600
Boise, ID 85702
Clerk’s Certificate
of Address and/or
Telephone Changes
Dated January 14, 2015
Susan M. Boe
New Mexico Foundation for
Open Government
22 Chocolate Flower Circle
Santa Fe, NM 87506
505-764-3750
[email protected]
Jay Barton Burnham
601 E. Diamond Street
Farmington, NM 87401
505-327-2769
F. Shaun Burns
PO Box 488
Clovis, NM 88101-0488
575-769-0777
575-762-4404 (fax)
[email protected]
Karen Kimbro Chase
U.S. District Court District of New Mexico
333 Lomas Blvd. NW, Suite 630
Albuquerque, NM 87102
505-348-2342
505-348-2345 (fax)
[email protected]
Effective December 23, 2014:
Francisco Velasquez
510 Slate Avenue NW
Albuquerque, NM 87102
Daniel Andrew Gonzales
Los Alamos County
1000 Central Avenue, Suite 340
Los Alamos, NM 87544
Effective December 24, 2014:
Nicole S. Murray
Yavapai County Public
Defender’s Office
595 White Spar Road
Prescott, AZ 86303
Oliver Howard Miles
Miles & Kendricks, LLC
195 East Road, Suite 102B
Los Alamos, NM 87544
Joe A. Sturges
12400 Carmel Avenue NE
Albuquerque, NM 87122
January 1, 2015:
Warren A. Sigal
PO Box 90692
Albuquerque, NM 87199-0692
Judith E. Reed
PO Box 6004
Albuquerque, NM 87197-6004
Michael Patrick Springer
Winstead, PC
600 Travis Street, Suite 1100
Houston, TX 77002
Terry M. Word
Terry M. Word, PC
500 Tijeras Avenue NW
Albuquerque, NM 87102
January 1, 2015:
Lloyd W. Drager
2724 Virginia Street NE
Albuquerque, NM 87110
Effective December 31, 2014:
Rhonda Patrice Backinoff
6518 Lafving Street NE
Albuquerque, NM 87109
Karen S. Janes
7201 Ranch Road 2222,
Apt. 2221
Austin, TX 78730
Elizabeth A. Collard
Thirteenth Judicial District
Court
1835 Highway 314 SW
Los Lunas, NM 87031
505-865-4291
[email protected]
Hon. Victor S. Lopez
Second Judicial District Court
PO Box 488
400 Lomas Blvd. NW (87102)
Albuquerque, NM 87103-0488
505-841-7454
505-841-5456 (fax)
Margaret A. Graham
Pregenzer, Baysinger,
Wideman & Sale, PC
2424 Louisiana Blvd. NE,
Suite 200
Albuquerque, NM 87110
505-872-0505
505-872-1009 (fax)
[email protected]
Tara Kirsten Lor
New Mexico Court of Appeals
PO Box 25306
2211 Tucker NE (87106)
Albuquerque, NM 87125-0306
505-841-4607
505-841-4618 (fax)
[email protected]
Kristin Elaine Morgan-Tracy
U.S. District Court District of New Mexico
333 Lomas Blvd. NW, Suite 630
Albuquerque, NM 87102
505-348-2343
505-348-2345 (fax)
Kristin_Morgan-Tracy@
nmcourt.fed.us
December 31, 2014:
Jeffrey S. Alley
El Paso Court of Appeals
4035 Little Lane
El Paso, TX 79922
Margaret Phelan Armijo
12640 Creekview Drive #116
San Diego, CA 92128
Margaret Alison Jeffers
Office of the Attorney General
PO Box 1508
408 Galisteo Street (87501)
Santa Fe, NM 87504-1508
505-827-6024
505-827-6036 (fax)
[email protected]
Thomas R.A. Limon
Office of the Third Judicial
District Attorney
845 N. Motel Blvd.
Las Cruces, NM 88007
575-524-6370
575-524-6379 (fax)
[email protected]
Gerald L. McManus
4705 Jessica Court NE
Rio Rancho, NM 87144
505-917-0101
[email protected]
Lawrence G. Michelsohn
3200 North Highway A1A,
#409
Fort Pierce, FL 34949
575-420-4064
[email protected]
Kevin Donald O’Leary
Law Offices of
Kevin D. O’Leary, PLLC
1001 4th Avenue, Suite 3200,
PMB 4022
Seattle, WA 98154
206-795-8992
425-949-7941 (fax)
[email protected]
Hon. Norman Osborne
Doña Ana County Magistrate
Court
110 Calle de Alegra
Las Cruces, NM 88004
575-524-2814
575-525-2951 (fax)
Ellen Snyder Perry
5615 Vulcan Vista Drive NE
Albuquerque, NM 87111
505-304-8781
[email protected]
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
15
Clerk’s Certificates
Debra D. Poulin
13216 Morrison Road
Little Rock, AR 72212
501-296-1775
501-296-1779 (fax)
[email protected]
Dan Evans Sheehan
Law Office of
Dan Sheehan LLC
400 Gold Avenue SW, Suite 910
Albuquerque, NM 87102
505-715-7194
attorneydansheehan@gmail.
com
Sarah S. Works
VanAmberg, Rogers, Yepa,
Abeita, Gomez & Works, LLP
PO Box 1447
347 E. Palace Avenue (87501)
Santa Fe, NM 87504-1447
505-988-8979
505-983-7508 (fax)
[email protected]
Rebekah Staggs Wright
Harvey & Foote Law Firm, LLC
201 Broadway SE
Albuquerque, NM 87102
505-254-0000
505-254-1111 (fax)
[email protected]
Michael Burns
Anderson Burns & Vela, LLP
8111 LBJ Freeway, Suite 1501
Dallas, TX 75251
214-276-1545
214-276-1546 (fax)
[email protected]
Cynthia Armijo
110 Second Street SW, Suite 412
Albuquerque, NM 87102
505-917-2092
505-944-9091 (fax)
[email protected]
Scott Fuqua
1021 Dunlap Street
Santa Fe, NM 87501
Florence Athene Berger
131 East Anapamu Street
Santa Barbara, CA 93101
Taylor Wills Edwards Brown
PO Box 1357
McKinney, TX 75070-8151
[email protected]
Steven J. Vogel
341 Hokulani Street
Makawao, HI 96768
505-401-0306
[email protected]
Shelley Denise Bruskotter
Law Offices of Shelley
Bruskotter
18745 Avenida Cordillera
San Diego, CA 92128
321-246-1624
[email protected]
Rachel L. Winston
Walcott, Henry & Winston, PC
200 W. Marcy Street, Suite 142
Santa Fe, NM 87501
505-982-9559
505-982-1199 (fax)
[email protected]
Kathleen Rosemary Bryan
Rose Bryan, PC
601 Marble Avenue NW
Albuquerque, NM 87102
505-750-8724
505-214-5949 (fax)
[email protected]
Clerk’s Certificate
of Address and/or
Telephone Changes
Perry Carlton Abernethy
1717 Cedar Elm Drive
Corinth, TX 76210
940-497-0049
[email protected]
Jennifer L. Attrep
1322 Paseo de Peralta
Santa Fe, NM 87501
505-989-1029
[email protected]
16
Hon. William C. Birdsall (ret.)
4009 Skyline Drive
Farmington, NM 87401
505-320-3485
[email protected]
Hon. William W. Bivins (ret.)
1602 Hillmeade Drive
Nashville, TN 37221
615-218-0931
[email protected]
John Stephen Carbone
Veterans’ Administration
Medical Center
2300 Ramsey Street
Fayetteville, NC 28301
910-488-2120 Ext. 5851
[email protected]
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
Adam Esquire Harper
Office of the Fifth Judicial
District Attorney
400 N. Virginia Avenue,
Suite G-2
Roswell, NM 88201-6222
[email protected]
James E. Harrington Jr.
1588 Cerro Gordo Road
Santa Fe, NM 87501
505-983-8863
505-983-2357 (fax)
[email protected]
Samantha Madrid
PO Box 803
110 Calle de Alegra (88005)
Las Cruces, NM 88004-0803
Dahlia Olsher-Tannen
8143 E. Mineral Drive
Centennial, CO 80112
[email protected]
Diana Ruth Salazar
134 Irvington Drive
San Antonio, TX 78209
diana@salazarimmigration.
com
John Adam Frase
Archibeque Law Firm
6709 Academy Road NE,
Suite B
Albuquerque, NM 87109
505-750-2363
[email protected]
Ned S. Fuller
N.M. General Services Dept.Risk Management Division
1100 S. St. Francis Drive,
Room 2073
Santa Fe, NM 87505
505-827-0462
505-827-0593 (fax)
[email protected]
Olga Serafimova
57 Suffolk Street
Holyoke, MA 01040
B. Kay Shafer
B. Kay Shafer, PC
6303 Indian School Road NE,
Suite 100
Albuquerque, NM 87110
505-296-3949
888-897-0242 (fax)
[email protected]
VanAmberg, Rogers, Yepa,
Abeita, Gomez & Works, LLP
Ronald J. VanAmberg
Carl Bryant Rogers
David T. Gomez
Sarah S. Works
PO Box 1447
347 E. Palace Avenue (87501)
Santa Fe, NM 87504-1447
505-988-8979
505-983-7508 (fax)
VanAmberg, Rogers, Yepa,
Abeita, Gomez & Works, LLP
David R. Yepa
Carolyn J. Abeita
1201 Lomas Blvd. NW, Suite C
Albuquerque, NM 87102
505-242-7352
505-242-2283 (fax)
Mary E. Chappelle
1307 Rio Grande Blvd. NW,
Suite 9
Albuquerque, NM 87104
505-266-0656
505-212-0412 (fax)
[email protected]
James S. Gibson
Zwillinger Greek & Knecht PC
2425 E. Camelback Road,
Suite 600
Phoenix, AZ 85016
602-224-7888
602-224-7889 (fax)
[email protected]
Stacey J. Goodwin
PNM Resources, Inc.
414 Silver Avenue SW-MS 0805
Albuquerque, NM 87102
505-241-4927
stacey.goodwin@
pnmresources.com
Clerk’s Certificates
Patrick Griebel
Marrs Griebel Ltd.
1000 Gold Avenue SE
Albuquerque, NM 87102
505-433-3926
505-639-4161 (fax)
[email protected]
Ryan T. Jerman
Atkinson, Thal & Baker, PC
201 Third Street NW,
Suite 1850
Albuquerque, NM 87102
505-764-8111
505-764-8374 (fax)
[email protected]
Hon. Cheryl Hein Johnston
Thirteenth Judicial District
Court
PO Box 600
1500 Idalia Road, Bldg. A
Bernalillo, NM 87004-0600
505-867-2376 Ext. 1160
505-771-7161 (fax)
William R. Keleher
Tax, Estate & Business Law, Ltd.
4811 A-4 Hardware Drive NE
Albuquerque, NM 87109
505-830-2200
505-264-8670 (fax)
[email protected]
Hon. William Mark Mast
Sandoval County Magistrate
Court
PO Box 1497
6354 U.S. Highway 550
Cuba, NM 87013-1497
575-289-3519
575-289-3013 (fax)
Rosemary P. McCourt
Administrative Office of the
Courts
Magistrate Court Division
2905 Rodeo Park Drive East,
Bldg. 5
Santa Fe, NM 87505
505-476-6095
505-827-4464
[email protected]
Judith A. Minnes McLeod
5040 Dockside Court
Weddington, NC 28104
888-397-4124 Ext. 23028
[email protected]
Esther Marie Garduno
Montoya
26805 Greenleaf Court
Valencia, CA 91381
505-515-4491
[email protected]
Lawrence Otero
PO Box 9240
Santa Fe, NM 87504-9240
505-438-7230
[email protected]
Fermin A. Rubio
N.M. State UniversityOffice of General Counsel
MSC 3UGC - PO Box 30001
2850 Weddell Road, Hadley
Hall Room 135
Las Cruces, NM 88003-8001
575-646-2246
575-646-3012 (fax)
[email protected]
Jason A. Sederquist
26 Brookstone Court
Durango, CO 81301
970-764-4069
[email protected]
Mary H. Smith
526 Aliso Drive NE
Albuquerque, NM 87108
505-255-9199
[email protected]
Delilah Tenorio
Enlace Comunitario
PO Box 8919
Albuquerque, NM 87198-8919
505-246-8972
505-764-5988 (fax)
[email protected]
David Tourek
1613 Monte Largo Drive NE
Albuquerque, NM 87112
505-323-6953
[email protected]
Blake Alan Whitcomb
Office of the City Attorney
PO Box 2248
1 Civic Plaza NW (87102)
Albuquerque, NM 871032248
505-768-4500
505-768-4525 (fax)
[email protected]
Lauri A. Ebel
U.S. Bank
7900 Jefferson Street NE
Albuquerque, NM 87109
505-222-0057
505-823-6284 (fax)
[email protected]
Carlos Elizondo
2418 E. Spicewood Avenue
Nampa, ID 83687
[email protected]
Krista Pietschman Gill
1080 Beacon Street, #3A
Brookline, MA 02446
[email protected]
Tuesday Kaasch
5950 North Course Drive
Houston, TX 77072
Michael Alan Lane
198C Nugent Road
Edgewood, NM 87015
[email protected]
Anne Elizabeth Illanes
Meyers
450 E Street NW
Washington, DC 20442
Shannon Murdock
PO Box 582
Moriarty, NM 87035-0582
shannonmurdock@hotmail.
com
Keri E. Paniagua
N.M. Human Services
Department, Child Support
Enforcement Division
1015 Tijeras Avenue NW,
Suite 100
Albuquerque, NM 87102
800-288-7207
[email protected]
Jonathan H. Reischl
234 Jackson Street
Trenton, NJ 08611
[email protected]
Phillip A. White
Confederated Tribes of Coos,
Lower Umpqua and Siuslaw
Indians
PO Box F
North Bend, OR 97459
Linda Christine Zemke
1000 El Alhambra Circle NW
Albuquerque, NM 87107
505-362-9269
Cynthia J. Patterson
Law Office of
Cynthia J. Patterson, LLC
601 N. Cheyenne
Silver City, NM 88061
575-534-0071
575-388-1875 (fax)
[email protected]
Hugh W. Dangler
1461 Diolinda Street
Santa Fe, NM 87505
505-473-1243
[email protected]
Barbara V. Johnson
Johnson Family Law PC
1303 Tijeras Avenue NW
Albuquerque, NM 87102
505-888-2008
[email protected]
Michelle Renee Mladek
206 Porr Drive
Ruidoso, NM 88345
575-258-1082
575-258-1018 (fax)
[email protected]
Deborah L. Douglas
302 E. Coronado Road
Santa Fe, NM 87505
505-982-2302
deborahsmithdouglas@gmail.
com
B. Douglas Wood III
Law Offices of the Public
Defender
301 N. Guadalupe Street,
Suite 101
Santa Fe, NM 87501
505-395-2890
505-476-0273 (fax)
[email protected]
Edward Michael Gallegos
Gallegos Law
PO Box 83
Lindrith, NM 87029-0083
575-737-1123
[email protected]
Megan Kathleen Mitsunaga
Law Office of
Megan Mitsunaga PC
518 Slate Avenue NW
Albuquerque, NM 87102
505-280-9548
505-219-1751 (fax)
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
17
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 January 28, 2015
Pending Proposed Rule Changes Open for
Comment:
Comment Deadline
For 2014 year-end rule amendments that became effective December
31, 2014, please see the November 5, 2014, issue of the Bar Bulletin
or visit the New Mexico Compilation Commission’s website at http://
www.nmcompcomm.us/nmrules/NMRuleSets.aspx.
Recently Approved Rule Changes
Since Release of 2014 NMRA:
Effective Date
Children’s Court Rules and Forms
10-102
10-315
10-317
10-323
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;
08/31/14
party dismissal sheet. 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.
18
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
JanuaryMarch
CLE Planner
Your Guide to Continuing Legal Education
Full course agendas
available online. Visit
www.nmbar.org
Courses at the Bar Center include ...
Breakfast and Lunch
Materials
Networking
Reach us at 505-797-6020.
5121 Masthead NE • PO Box 92860, Albuquerque, NM 87199
CENTER FOR LEGAL EDUCATION
www.nmbar.org
ADR Series: Understanding
Different Approaches to Mediation
1.0 EP
presented by Mark D. Bennett
Thursday, Jan. 29 • 12:30-1:30 p.m.
State Bar Center
Co-sponsor: ADR Committee
Standard Fee: $50 • ADR Committee members: $30
Non-attorneys: Free of charge
Save the Date
March 6
30th Annual Bankruptcy Year in Review
NATIONAL SERIES • JANUARY-FEBRUARY
Teleseminars start at 11 a.m. and count as live credit.
See more and register for teleseminars online at www.nmbar.org.
January
9
Warrants, Options & Other Incentives in Business
Transactions
$67 • 1.0 G CLE Credit
23
Ethics of Maintaining Client Confidences in a Digital
World
$67 • 1.0 EP CLE Credit
10-11
2015 Ethics Update, Parts 1 and 2
$129 • 2.0 EP CLE Credits
22
Estate Planning for Pre- and Post-Nuptial Agreements
$67 • 1.0 G CLE Credit
27
Splitting the Difference: “Earnouts” in Business Sales
$67 • 1.0 G CLE Credit
28
Ground Leases in Real Estate Transactions
$67 • 1.0 G CLE Credit
30
Ethics, Disqualifications & Sanctions
$67 • 1.0 EP CLE Credit
February
3
Estate Planning for Digital Assets
$67 • 1.0 G CLE Credit
4
Buying & Selling Partnership/LLC Interests - Economic,
Management & Tax Issues
$67 • 1.0 G CLE Credit
5
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Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
From the New Mexico Supreme Court
Opinion Number: 2014-NMSC-038
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
WALTER ERNEST BROWN,
Defendant-Appellant
No. 34,531 (filed November 6, 2014)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
KENNETH H. MARTINEZ, District Judge
JODY NEAL-POST
Albuquerque, New Mexico
JORGE A. ALVARADO
Chief Public Defender
JEFF REIN
Assistant Public Defender
Albuquerque, New Mexico
for Appellant
Opinion
Charles W. Daniels, Justice
{1} The Bill of Rights of the New Mexico
Constitution guarantees that “[a]ll persons . . . before conviction” are entitled
to be released from custody pending trial
without being required to post excessive
bail, subject to limited exceptions in which
release may be denied in certain capital
cases and for narrow categories of repeat
offenders. N.M. Const. art. II, § 13. Our
rules of criminal procedure provide the
mechanisms through which we honor this
constitutional right to pretrial release. The
rules require that a defendant be released
from custody on the least restrictive conditions necessary to reasonably assure
both the defendant’s appearance in court
and the safety of the community. See Rule
5-401 NMRA. In this case, Defendant
Walter Brown presented the district court
with uncontroverted evidence demonstrating that nonmonetary conditions of
pretrial release were sufficient to reasonably assure that Defendant was not likely
to pose a flight or safety risk. Despite this
evidence, the district court ordered that
Defendant be held in jail unless he posted
a $250,000 cash or surety bond, based
GUINEVERE ICE
Office of the District Attorney
Albuquerque, New Mexico
for Appellee
solely on the nature and seriousness of
the charged offense. We conclude that the
district court erred by requiring a $250,000
bond when the evidence demonstrated
that less restrictive conditions of pretrial
release would be sufficient. We therefore
entered an order reversing the district
court’s pretrial release order and instructing the district court to release Defendant
on appropriate nonmonetary conditions.
We now issue this precedential opinion
to explain the basis for our decision, to
clarify the purposes and controlling legal
principles for setting bail, and to provide
guidance for future pretrial release decisions.
I.FACTUAL AND PROCEDURAL
BACKGROUND
{2} Defendant Walter Brown was arrested
on May 26, 2011, and indicted two weeks
later on an array of charges, including firstdegree felony murder and, alternatively,
second-degree murder. The district court
imposed a $250,000 cash or surety bond
at Defendant’s 2011 arraignment. After
spending more than two years in pretrial
custody awaiting trial because he lacked
the financial resources to post such a
high bond, Defendant moved the district
court to review his conditions of release
and to release him under the supervision
of the Second Judicial District Court’s
pretrial services program with appropriate nonmonetary conditions of release.
Defendant agreed to accept conditions
of release that included monitoring by a
GPS device, living with his father, making
regular contact with the pretrial services
program, and maintaining employment at
a local restaurant that had agreed to hire
him.
{3}In support of his motion, Defendant
provided the district court with extensive
information about his personal history and
characteristics. Defendant’s nineteenth
birthday occurred two months before his
arrest in this case. An only child who has
always lived with one or both of his parents, he cannot live independently due to
developmental and intellectual disabilities.
He attended special education classes
throughout his school years in Albuquerque and has a second-grade comprehension level for math, writing, and reading.
Defendant dropped out of high school
during his senior year and subsequently
worked at several local restaurants. In spite
of his disabilities, while in pretrial detention he successfully completed a variety of
educational and counseling programs and
obtained a high school diploma.
{4} At a hearing on his motion for release
on nonmonetary conditions, Defendant
presented testimony from Dr. James Harrington, a psychologist with the district
court’s pretrial services program who
had interviewed and evaluated Defendant to determine whether he would be
an appropriate candidate for supervised
pretrial release. Dr. Harrington characterized Defendant as compliant, cooperative,
and honest during the interview. Dr. Harrington concluded that Defendant exhibits
none of the factors typically correlated
with dangerousness or a risk of flight,
such as prior criminal history or a history
of mental illness or substance abuse. Dr.
Harrington also verified that Defendant
has the capacity to understand and comply
with the proposed conditions of supervised release. Based on his evaluation, Dr.
Harrington opined that Defendant was an
appropriate candidate for release under
the supervision of the pretrial services
program with GPS monitoring.
{5}The State declined to cross-examine
Dr. Harrington or to present any evidence
of its own. Instead, the State simply argued
that the $250,000 bond should remain
in place due to the serious nature of the
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
19
Advance Opinions
criminal charges against Defendant. In
support of its argument, the State proffered an undisputed account of the factual
circumstances underlying the charges.
On the day of the alleged homicide while
she was highly intoxicated, Defendant’s
acquaintance Rebecca Duran got into an
altercation with several people at a house.
Before leaving the house, Duran threatened to come back and “get even” with the
people there. After leaving, Duran sought
out Defendant and an acquaintance named
Eugene Helfer and asked them to accompany her back to the house, where neither
Duran nor Helfer nor Defendant lived,
to retrieve Duran’s personal belongings.
Neither Defendant nor Helfer had been
present during the earlier altercation.
{6}When Duran returned to the house
with Defendant and Helfer, they knocked
on the front door; when there was no answer, they went around to the back of the
house and entered by opening a sliding
glass door. Once inside, Duran attacked
several people and hit the victim in the
head with a wrench. As explained by the
State, Duran was “the one mostly arguing”
and “starting stuff.” At some point the
victim pushed Helfer, who is Defendant’s
friend. Defendant reacted by stabbing the
victim once with a folding pocket knife,
fatally piercing the victim’s heart.
{7}After hearing from Defendant and
the State, the district court orally denied
Defendant’s motion for release on nonmonetary conditions on the ground that
Defendant’s charge of first-degree felony
murder carried a possible life sentence
that would require at least thirty years of
imprisonment. The district court subsequently filed a written order setting forth
detailed factual findings. Based on the
evidence presented at the motion hearing,
the district court found that the pretrial
services program could fashion appropriate conditions of release for Defendant
and that Defendant could live with his
father and return to his former job if released. The district court also found that
Defendant’s IQ is 70, that Defendant has
longstanding ties in the community, and
that Defendant has the support of both of
his parents. The district court’s findings
included Dr. Harrington’s conclusions that
Defendant has no alcohol or substance
abuse issues and no pending criminal
proceedings or history of violence outside
the allegations in this case. The district
court found that Defendant had “been
entirely compliant for the entirety of his
pretrial incarceration of over 2 years and
20
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4 months” and had “appeared timely and
without incident at all scheduled hearings
in this case.” The district court called its
findings “uncontroverted.” And the district
court explicitly found that the State had
presented no information indicating that
Defendant would commit new crimes,
pose a danger to anyone, or fail to appear
in court if released from custody. Despite
these findings, the district court kept Defendant’s $250,000 bond in place due to
“the nature and seriousness of the alleged
offense.”
{8} After several more months of pretrial
confinement, Defendant filed a second
motion, again seeking release under
the supervision of the pretrial services
program with appropriate nonmonetary
release conditions. At a hearing on the second motion, defense counsel reiterated the
information presented at the first hearing
five months earlier and argued that Defendant’s unique personal history made him
likely to comply with conditions of release
and unlikely to commit additional crimes
while released. Dr. Harrington testified
again that he deemed Defendant to be a
good candidate for nonmonetary pretrial
release. Defendant also presented the testimony of Patrick Wojtowicz, the pretrial
services officer likely to supervise Defendant if released. Mr. Wojtowicz verified
that Defendant could live with his father
and return to work if released. Mr. Wojtowicz confirmed that Defendant would
be capable of using public transportation
to get to the pretrial services office for appointments. And Mr. Wojtowicz agreed
with Dr. Harrington that pretrial release
with GPS monitoring and supervision by
the pretrial services program would be a
good fit for Defendant. Without specifically controverting the evidence presented
at the hearing, the State argued against any
change to Defendant’s conditions of release
on the theory that the seriousness of the
charges alone justified the requirement of
a $250,000 bond for release pending trial.
{9}After hearing from the parties, the
district court judge admitted that he was
“absolutely impressed” with Defendant’s
presentation but “hesitant to act upon it.”
The district court orally denied Defendant’s second motion to amend the conditions of pretrial release. Defense counsel
asked the district court judge to clarify
the reasons for his decision. The judge
explained that the nature of the allegations
and the potential sentence led the judge
to believe that releasing Defendant “may
present a danger of either flight or to other
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
members of the community.” The district
court did not file a written order disposing
of the second motion.
{10} After the district court denied
Defendant’s second motion to amend the
conditions of release, Defendant appealed
to the Court of Appeals by filing a motion
under Rule 12-204 NMRA, which provides
the procedure for appealing a district
court’s pretrial release order. Defendant
asked the Court of Appeals to reverse the
pretrial release order and to enter an order
setting appropriate conditions of release.
The Court of Appeals transferred the appeal to this Court, which has exclusive
appellate jurisdiction over cases involving
potential sentences of life imprisonment.
See State v. Smallwood, 2007-NMSC-005,
¶ 11, 141 N.M. 178, 152 P.3d 821 (holding that “the legislature intended for [the
Supreme Court] to have jurisdiction over
interlocutory appeals in situations where
a defendant may possibly be sentenced to
life imprisonment or death”).
{11} After hearing oral arguments from
the parties, this Court filed an order (1)
accepting the transfer from the Court of
Appeals, (2) reversing the district court’s
pretrial release order, and (3) remanding this case to the district court to set
appropriate nonmonetary conditions of
release, including GPS monitoring and
supervision by the district court’s pretrial
services program.
II.DISCUSSION
A.This Court Has Exclusive
Jurisdiction over Defendant’s
Appeal Because He Faces a Possible
Sentence of Life Imprisonment
{12} As a preliminary matter we consider
whether Defendant’s appeal should be
heard by this Court or by the Court of
Appeals. The extent of this Court’s appellate jurisdiction is a question of law that
we review de novo. See Lion’s Gate Water
v. D’Antonio, 2009-NMSC-057, ¶ 18, 147
N.M. 523, 226 P.3d 622.
{13} Article VI, Section 2 of the New
Mexico Constitution gives this Court
exclusive appellate jurisdiction over appeals from final district court judgments
“imposing a sentence of death or life imprisonment” as well as jurisdiction over
other appeals “as may be provided by law.”
In this case, Defendant appeals from an
interlocutory pretrial release order, not
a final judgment. See Tijerina v. Baker,
1968-NMSC-009, ¶ 8, 78 N.M. 770, 438
P.2d 514 (per curiam) (concluding that
a pretrial release order is interlocutory);
State v. David, 1984-NMCA-119, ¶ 13, 102
Advance Opinions
N.M. 138, 692 P.2d 524 (explaining that an
“interlocutory bail determination is not a
final judgment”).
{14} Defendant’s right to file this interlocutory appeal arises under NMSA
1978, Section 39-3-3(A)(2) (1972), which
permits an appeal from a district court
“order denying relief on a petition to
review conditions of [pretrial] release.”
We have held that Section 39-3-3(A), in
conjunction with Article VI, Section 2 of
the New Mexico Constitution, gives this
Court exclusive appellate jurisdiction
over interlocutory appeals in criminal
cases where the defendant faces a possible
sentence of life imprisonment or death. See
Smallwood, 2007-NMSC-005, ¶¶ 6-11. In
Smallwood, we identified Section 39-3-3 as
“the one statute dealing specifically with
appellate jurisdiction over interlocutory
appeals in criminal cases” and noted that
the statute permits a defendant to appeal
to either “‘the supreme court or court of
appeals, as appellate jurisdiction may be
vested by law in these courts.’” Smallwood,
2007-NMSC-005, ¶ 9 (quoting Section
39-3-3(A)). Because the New Mexico Constitution vests this Court with exclusive
appellate jurisdiction over final district
court judgments imposing a sentence of
life imprisonment or death, we concluded
that Section 39-3-3(A) confers “this Court
with jurisdiction over a criminal defendant’s interlocutory appeal in cases where
a sentence of life imprisonment or death
could be imposed.” Smallwood, 2007NMSC-005, ¶ 10.
{15} In this case, Defendant is charged
with first-degree felony murder, an offense
that carries a possible sentence of life imprisonment. See NMSA 1978, § 30-2-1(A)
(1994); NMSA 1978, § 31-18-14 (2009).
We therefore hold that this Court has exclusive appellate jurisdiction to consider
Defendant’s appeal.
{16} Although this Court has exclusive
appellate jurisdiction to hear Defendant’s
appeal, Defendant filed his appeal in
the Court of Appeals. It appears that an
inadvertent omission in our procedural
rules may have caused Defendant’s error. Under Rule 5-401(G), a person who
has been unable “to meet the bail set[]
shall, upon motion, be entitled to have
a hearing to review the amount of bail
set.”1 And if a person “continues to be
detained” after such a hearing “because
http://www.nmcompcomm.us/
of a failure to meet a condition imposed,”
then that person may appeal “to the
Supreme Court or Court of Appeals, as
jurisdiction may be vested by law, in
accordance with the Rules of Appellate
Procedure.” Rule 5-405(A) NMRA (emphasis added).
{17} And although Rule 5-405(A) recognizes this Court’s appellate jurisdiction to
review certain pretrial release orders, Rule
12-204 NMRA of the Rules of Appellate
Procedure instructs litigants to initiate
such appeals by filing a motion in the Court
of Appeals. See Rule 12-204(A) (“An appeal
provided for by NMSA 1978, § 39-3-3A(2),
and Rule 5-405 of the Rules of Criminal
Procedure shall be taken by filing a motion with the clerk of the court of appeals
within ten (10) days after the decision of
the district court and serving a copy on the
district attorney and the appellate division
of the attorney general.” (emphasis added)).
We conclude that Rule 12-204 should be
amended to reflect this Court’s exclusive
jurisdiction over interlocutory appeals
from pretrial release orders in cases where
the defendant faces a possible sentence of
life imprisonment or death, and we ask our
Rules of Appellate Procedure Committee
to draft proposed rule amendments for this
Court’s consideration.
B.The District Court Failed to
Impose the Least Restrictive
Conditions of Release That Would
Reasonably Assure Defendant’s
Appearance in Court and the
Safety of the Community
{18} We now turn to the merits of Defendant’s appeal. Defendant argues that
the district court erred by disregarding the
undisputed evidence concerning his suitability for pretrial release and by basing its
pretrial release order solely on the nature
of the charges, excluding consideration of
other factors that the district court must
consider under Rule 5-401(C) of the Rules
of Criminal Procedure for the District
Courts. The State has maintained that a
$250,000 bond is justified by the nature
and seriousness of the charges in this case.
In order to fully explain why we set aside
the district court’s pretrial release order
in this case, we begin with an abbreviated
review of the origins and history of bail
and an examination of the bail provisions
in the New Mexico Constitution and our
rules of criminal procedure.
1.Constitutional Right to Bail in
New Mexico
{19} The New Mexico Constitution affords criminal defendants a right to bail
in Article II, Section 13, which provides
that “[a]ll persons shall, before conviction
be bailable by sufficient sureties” and that
“[e]xcessive bail shall not be required.”
These provisions were first incorporated
into the written law of territorial New
Mexico when Brigadier General Stephen
Kearny promulgated the Kearny Bill of
Rights in 1846. See Kearny Bill of Rights,
cl. 9 (1846, reprinted in Vol. 1 of NMSA
1978) (“[A]ll persons shall be bailed by
sufficient sureties, except in capital offenses where proof of guilt is evident.”);
Kearny Bill of Rights, cl. 10 (“[E]xcessive
bail shall not be required.”). Article II,
Section 13 enshrines the principle that a
person accused of a crime is entitled to
retain personal freedom “until adjudged
guilty by the court of last resort.” Tijerina,
1968-NMSC-009, ¶ 9; see Bandy v. United
States, 81 S. Ct. 197, 197 (1960) (“The
fundamental tradition in this country is
that one charged with a crime is not, in
ordinary circumstances, imprisoned until
after a judgment of guilt.”).
{20} Notwithstanding the presumption
that all persons are bailable pending trial,
the right to bail “is not absolute under all
circumstances.” Tijerina, 1968-NMSC009, ¶ 9. Article II, Section 13 contains
two exceptions that restrict the right to
bail as to certain persons. First, the district
court may deny bail altogether to a person
charged with a capital offense if “the proof
is evident or the presumption great.” N.M.
Const. art. II, § 13. Second, the district
court may deny bail
for a period of sixty days after the
incarceration of the defendant
by an order entered within seven
days after the incarceration, in the
following instances:
A.
the defendant is accused
of a felony and has previously
been convicted of two or more
felonies, within the state, which
felonies did not arise from the
same transaction or a common
transaction with the case at bar;
the defendant is accused
B.
of a felony involving the use of a
deadly weapon and has a prior
felony conviction, within the
1 The term “bail” as used in this opinion may refer to either (1) the “process by which a person is released from custody either on
the undertaking of a surety or on his or her own recognizance” or (2) the “security such as cash, a bond, or property” that a person
must provide in order to gain such release. Black’s Law Dictionary 167 (10th ed. 2014).
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
21
Advance Opinions
state. The period for incarceration
without bail may be extended
by any period of time by which
trial is delayed by a motion for a
continuance made by or on behalf
of the defendant.
Id. A court cannot refuse to set bail and
detain a defendant pending trial under
either of these exceptions without first
providing the defendant with adequate
procedural due process protections, including the right to counsel, notice, and
an opportunity to be heard. See David,
1984-NMCA-119, ¶ 23 (citing Tijerina,
1968-NMSC-009).
{21} Once released, a defendant’s continuing right to pretrial liberty is conditioned on the defendant’s appearance
in court, compliance with the law, and
adherence to the conditions of pretrial
release imposed by the court. See Rule
5-403(A) NMRA (providing that the
court may revoke release “upon a showing
that the defendant has been indicted or
bound over for trial on a charge constituting a serious crime allegedly committed
while released pending adjudication of
a prior charge”); State v. Segura, 2014NMCA-037, ¶ 8, 321 P.3d 140 (explaining
that the court may revoke bail to ensure
“the proper administration of justice” or
“for violation of a condition of pretrial
release” (internal quotation marks and
citation omitted)). Accordingly, if a defendant fails to appear in court, commits
additional crimes, or violates conditions
of pretrial release, the court may, upon
notice and hearing, revoke the defendant’s
release and remand the defendant into
custody. See Tijerina, 1968-NMSC-009,
¶ 11 (noting that due process requires
“notice and an opportunity to be heard
before bond can be revoked and a defendant remanded to custody”); Segura,
2014-NMCA-037, ¶ 23 (concluding that
the state has the burden of establishing
facts to support a revocation of bail and
that the defendant has a due process
right to contest the state’s evidence). But
cf. State v. Romero, 2006-NMCA-126, ¶¶
1-2, 140 N.M. 524, 143 P.3d 763 (holding that a bail bond may be forfeited for
failure to appear but not for violation of
other conditions of release), aff ’d, 2007NMSC-030, ¶ 6, 141 N.M. 733, 160 P.3d
914. Under all other circumstances, the
New Mexico Constitution requires that
“[a]ll persons shall . . . be bailable by sufficient sureties” and that “[e]xcessive bail
shall not be required.” N.M. Const. art. II,
§ 13.
22
http://www.nmcompcomm.us/
2.Origins and History of Bail in
England
{22} The right to pretrial release set forth
in the New Mexico Constitution has roots
that extend back to medieval England,
where bail originated “as a device to free
untried prisoners.” Daniel J. Freed & Patricia M. Wald, Bail in the United States:
1964 1 (1964); see IV William Blackstone,
Commentaries on the Laws of England in
Four Books 1690 (Rees Welsh & Co. 1902)
(1769) (“By the ancient common law,
before and since the [Norman] conquest,
all felonies were bailable, till murder was
excepted by statute; so that persons might
be admitted to bail before conviction almost in every case.” (footnotes omitted)).
See generally William F. Duker, The Right
to Bail: A Historical Inquiry, 42 Alb. L. Rev.
33, 34-66 (1977) (describing the origins
and history of bail in England); Elsa de
Haas, Antiquities of Bail 128 (1940) (concluding that the “root idea of the modern
right to bail” came from “tribal custom on
the continent of Europe”).
{23} During the Anglo-Saxon period in
England before the Norman conquest, the
penalty for most crimes was a monetary
fine paid as compensation to the victim.
See June Carbone, Seeing Through the
Emperor’s New Clothes: Rediscovery of Basic
Principles in the Administration of Bail, 34
Syracuse L. Rev. 517, 519-20 (1983). Under
this system of justice, the sheriff often required the accused to secure a third party,
or surety, to guarantee the appearance of
the accused for trial and the payment of
the fine upon conviction. See id. at 520; see
also Bail: An Ancient Practice Reexamined,
70 Yale L.J. 966, 966 (1961). The amount
of money pledged as bail was identical to
the penalty prospect upon a conviction,
and the surety was required to pay the
fine if the accused failed to appear for
trial. Carbone, supra, at 520. This system
of bail ensured victim compensation and
deterred pretrial flight because the surety
bore financial responsibility for payment
of the penalty and had an incentive to
produce the accused for trial. Id.
{24} Following the Norman conquest of
1066, capital and corporal punishment began gradually to replace monetary fines as
the penalty for most offenses, and accused
persons faced longer delays between accusation and trial as they waited for traveling
judges to arrive and dispense local justice.
See id. at 519, 521; see also Freed & Wald,
supra, at 1 (“Disease-ridden jails and
delayed trials by traveling justices necessitated an alternative to holding accused
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
persons in pretrial custody.”). The development of corporal and capital punishment
complicated the use of bail because the
amount of money pledged no longer correlated directly to the potential punishment.
Carbone, supra, at 522. The endowment of
local sheriffs with discretion in setting bail
led to rampant corruption and abuse. See
United States v. Edwards, 430 A.2d 1321,
1326 (D.C. Cir. 1981) (en banc) (explaining that sheriffs “exercised a broad and
ill-defined discretionary power to bail”
prisoners and that this “power was widely
abused by sheriffs who extorted money
from individuals entitled to release without charge” and who “accepted bribes from
those who were not otherwise entitled to
bail”).
{25} In response to historical abuses, the
common law right to bail was codified into
written English law. In 1215, the principles
that an accused is presumed innocent and
entitled to personal liberty pending trial
were incorporated into the Magna Carta,
which proclaimed that “no freeman shall
be taken or imprisoned . . . [except by]
the judgment of his peers or by the law of
the land.” Kennedy v. Mendoza-Martinez,
372 U.S. 144, 186 (1963) (internal quotation marks and citation omitted). In
1275, the English Parliament enacted the
Statute of Westminster, which defined
bailable offenses and provided criteria for
determining whether a particular person
should be released, including the strength
of the evidence against the accused and
the accused’s criminal history. See Bail:
An Ancient Practice Reexamined, supra,
at 966; Carbone, supra, at 523-26. In 1679,
Parliament adopted the Habeas Corpus
Act to ensure that an accused could obtain
a timely bail hearing; and in 1689, Parliament enacted an English Bill of Rights that
prohibited excessive bail. See Carbone,
supra, at 528. In crossing the Atlantic,
American colonists carried concepts embedded in these documents that became
the foundation for our current system of
bail. See id. at 529.
3. Bail in the United States
{26} The presumption that defendants
should be released pending trial became
widely adopted throughout the United
States in both the state and federal systems.
See Bail: An Ancient Practice Reexamined,
supra, at 967. One commentator who
surveyed the bail laws in each of the states
found that forty-eight states have protected, by constitution or statute, a right to bail
“by sufficient sureties, except for capital
offenses when the proof is evident or the
Advance Opinions
presumption great.” Matthew J. Hegreness,
America’s Fundamental and Vanishing Right
to Bail, 55 Ariz. L. Rev. 909, 916 (2013).
States modeled these provisions on the
Pennsylvania Constitution of 1682, which
provided that “‘all Prisoners shall be Bailable by Sufficient Sureties, unless for capital
Offenses, where proof is evident or the
presumption great.’” See Carbone, supra,
at 531-32 (“[T]he Pennsylvania provision
became the model for almost every state
constitution adopted after 1776.”).
{27} At the federal level, the first United
States Congress established a statutory
right to bail by enacting the Judiciary Act
of 1789, which provided an absolute right
to bail in noncapital cases and bail at the
discretion of the judge in capital cases. See
Judiciary Act of 1789, ch. 20, § 33, 1 Stat.
73, 91; see also Caleb Foote, The Coming
Constitutional Crisis in Bail: I, 113 U. Pa.
L. Rev. 959, 971 (1965) (explaining that the
“bail problem” was before the first Congress in the spring and summer of 1789).
The first Congress also proposed that the
states adopt the Eighth Amendment to the
United States Constitution, which, like the
New Mexico Constitution and English Bill
of Rights, prohibits excessive bail. See U.S.
Const. amend. VIII; N.M. Const. art. II, §
13; see also Browning-Ferris Indus. of Vt.,
Inc. v. Kelco Disposal, Inc., 492 U.S. 257,
294 (1989) (O’Connor, J., concurring in
part and dissenting in part) (explaining
that the first Congress based the Eighth
Amendment “on Article I, § 9, of the Virginia Declaration of Rights of 1776, which
had in turn adopted verbatim the language
of § 10 of the English Bill of Rights”). But
unlike the New Mexico Constitution,
the United States Constitution does not
contain an explicit right to bail clause
and guarantees only that “[e]xcessive bail
shall not be required.” U.S. Const. amend.
VIII; see Carlson v. Landon, 342 U.S. 524,
545-46 (1952) (explaining that the United
States Constitution can be construed only
as a prohibition against excessive bail in
those cases in which it is proper to grant
bail because the Eighth Amendment does
not provide a “right to bail”). The United
States Supreme Court has held that “[b]ail
set at a figure higher than an amount reasonably calculated to fulfill [the] purpose
[of adequately assuring the presence of the
accused] is ‘excessive’ under the Eighth
Amendment.” Stack v. Boyle, 342 U.S. 1, 5
(1951). As the Court explained,
From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91,
to the present Federal Rules of
http://www.nmcompcomm.us/
Criminal Procedure, Rule 46(a)
(1), 18 U.S.C.A., federal law has
unequivocally provided that a
person arrested for a non-capital
offense shall be admitted to bail.
This traditional right to freedom
before conviction permits the
unhampered preparation of a
defense, and serves to prevent
the infliction of punishment
prior to conviction. See Hudson v. Parker, 1895, 156 U.S.
277, 285 . . . . Unless this right
to bail before trial is preserved,
the presumption of innocence,
secured only after centuries of
struggle, would lose its meaning.
Id. at 4.
{28} Despite the ancient origins and
broad recognition of the right to bail in
this country, studies of the administration
of bail in the twentieth century raised a
number of concerns about its widespread
misuse. See Field Study, A Study of the Administration of Bail in New York City, 106
U. Pa. L. Rev. 693 (1958); Note, Compelling
Appearance in Court: The Administration of
Bail in Philadelphia, 102 U. Pa. L. Rev. 1031
(1954); Arthur L. Beeley, The Bail System
in Chicago (1927). See generally Wayne H.
Thomas, Jr., Bail Reform in America 3-19
(1976); Ronald Goldfarb, Ransom (1965);
Foote, supra; Freed & Wald, supra, at 9-21.
The studies all concluded that the system of
money bail in the United States discriminates against indigent defendants who lack
the financial resources to post bail. See, e.g.,
Thomas, supra, at 11, 19 (“The American
system of bail allows a person arrested for
a criminal offense the right to purchase his
release pending trial. Those who can afford
the price are released; those who cannot
remain in jail. . . . The requirement that
virtually every defendant must post bail
causes discrimination against defendants
who are poor.”). Researchers also found
that defendants incarcerated pending
trial were held “under harsher conditions
than those applied to convicted prisoners,”
even though many of those defendants
ultimately were either acquitted or given
no sentence of imprisonment upon the
disposition of their cases. Foote, supra, at
960.
{29} These concerns were accompanied
by criticism of the growing role commercial bail bond agents played in determining
whether defendants would be released
pending trial. See Notes, Preventive Detention Before Trial, 79 Harv. L. Rev. 1489,
1490 (1966). No commercial bail bond
industry existed in medieval England,
where pretrial release was conditioned
upon the accused securing a reputable
friend or relative to personally assure the
accused’s appearance for trial. See Thomas,
supra, at 11-12; see also F.E. Devine, Commercial Bail Bonding 5 (1991) (explaining
that sureties in eighteenth-century England “were viewed as actively exercising
a friendly custody of the accused”). To
the contrary, the English judicial system
has always found the concept of commercial sureties repugnant. See generally
Devine, supra, at 37 (explaining that, in
the nineteenth century, the English common law treated an agreement to pay a
surety for bail as an “unenforceable illegal
contract contrary to the public interest”
and, in the twentieth century, as a “crime
of conspiracy to effect a public mischief ”
or a crime of “conspiracy to obstruct the
court of justice”); id. at 45 (explaining
that the English Bail Act of 1976 sets forth
criminal penalties for agreeing to indemnify a surety in a criminal proceeding,
effectively barring any commercial bail
bond industry). England is not alone in
its rejection of the commercial bail bond
industry. “Viewed from an international
perspective, the commercial bail bonding
system has provoked an almost universally
unfavorable reaction” in common law judicial systems, and “only one country, the
Philippines, has adopted a commercial bail
bonding system similar to the American
system.” Id. at 15.
{30} Contrary to this international trend,
a commercial bail bond industry emerged
in the early United States. Contributing
factors included the near-absolute right
to bail set forth in the Judiciary Act of
1789 and in most state constitutions, the
unavailability of friends and relatives who
might serve as personal sureties, and the
ability of defendants to flee into the vast
American frontier. See Thomas, supra, at
11-12. By the middle of the twentieth century in the United States, commercial bail
bond companies who charged defendants
a nonrefundable fee for their services,
typically ten percent of the bond amount,
frequently posted money bail. See id. at 11;
Freed & Wald, supra, at 22-24.
{31} A commercial bail bond may enable
a defendant to post money bail required
by the court as additional assurance that
the defendant will appear for trial. See
Stack v. Boyle, 342 U.S. at 5 (“Like the
ancient practice of securing the oaths of
responsible persons to stand as sureties
for the accused, the modern practice of
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23
Advance Opinions
requiring a bail bond or the deposit of a
sum of money subject to forfeiture serves
as additional assurance of the presence
of an accused.”). But critics argued that
the commercial bail bond industry inappropriately delegated to private agents the
power to determine which defendants get
released. See Preventive Detention Before
Trial, supra, at 1490. As one federal judge
observed, the effect of the commercial bail
bond industry
is that the professional bondsmen hold the keys to the jail in
their pockets. They determine
for whom they will act as surety—who in their judgment is a
good risk. The bad risks, in the
bondsmen’s judgment, and the
ones who are unable to pay the
bondsmen’s fees, remain in jail.
The court [is] relegated to the
relatively unimportant chore of
fixing the amount of bail.
Pannell v. United States, 320 F.2d 698, 699
(D.C. Cir. 1963) (Wright, J., concurring).
{32} Some fifty years ago, widespread
concerns about problems and inequities
in bail practices sparked national interest
in establishing new bail procedures and
pretrial programs that would treat the rich
and the poor more equitably by facilitating
pretrial release without the requirement of
monetary bonds. The modern bail reform
movement began with the Manhattan Bail
Project, conducted in the 1960s by the Vera
Foundation in New York City. See Thomas,
supra, at 3, 20-27; Goldfarb, supra, at 15072. Through the Manhattan Bail Project,
defendants were interviewed prior to
their first appearance in court to evaluate whether they were good candidates
for pretrial release on recognizance; that
is, release “on one’s honor pending trial.”
Goldfarb, supra, at 153-54. The standard
interview questions included an inquiry
into a defendant’s personal background,
community ties, and criminal history.
Id. The interviewer scored a defendant’s
answers using a point-weighing system
and verified answers for accuracy, usually
over the telephone with references the
defendant provided. Id. at 154-55, 17475. The interviewers gave the resulting
information to the court and made recommendations regarding which defendants
should be released on recognizance. Id. at
155. The Manhattan Bail Project proved
successful. During the first three years of
the experiment, defendants released on recognizance at the recommendation of the
Vera Foundation were about three times
24
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more likely to appear for trial than defendants in control groups deemed eligible for
release on recognizance who instead were
released on money bail. Id. at 155, 157.
The Manhattan Bail Project “showed that
defendants could be successfully released
pretrial without the financial guarantee of
a surety bail agent if verified information
concerning their stability and community
ties were presented to the court.” Thomas
H. Cohen & Brian A. Reaves, Pretrial Release of Felony Defendants in State Courts
4 (U.S. Dep’t of Justice Nov. 2007). The
success of the Manhattan Bail Project increased national interest in bail reform and
triggered the creation of pretrial services
programs across the country. See Timothy
R. Schnacke et al., Pretrial Justice Inst.,
The History of Bail and Pretrial Release 10
(2010); see also Marie VanNostrand et al.,
Our Journey Toward Pretrial Justice, 71
Fed. Probation, no. 2, 2007, 20, 20 (discussing pretrial services agencies “as providers
of the information necessary for judicial
officers to make the most appropriate bail
decision” and to “provide monitoring and
supervision of defendants released with
conditions pending trial”).
{33} Driven by the same concerns that
inspired the Manhattan Bail Project, Congress enacted the Bail Reform Act of 1966,
the first major reform of the federal bail
system since the Judiciary Act of 1789. See
Bail Reform Act of 1966, Pub. L. No. 89465, 80 Stat. 214 (repealed 1984). The stated purpose of the Bail Reform Act of 1966
was “to assure that all persons, regardless
of their financial status, shall not needlessly
be detained pending their appearance to
answer charges . . . when detention serves
neither the ends of justice nor the public
interest.” Id. Sec. 2. The Act included the
following key provisions to govern pretrial
release in noncapital criminal cases in
federal court: (1) a presumption of release
on personal recognizance unless the court
determined that such release would not
reasonably assure the defendant’s appearance in court, (2) the option of conditional
pretrial release under supervision or other
terms designed to decrease the risk of
flight, and (3) a prohibition on the use of
money bail in cases where nonfinancial release options such as supervisory custody
or restrictions on “travel . . . or place of
abode” are sufficient to reasonably assure
the defendant’s appearance. See id. Sec.
3, § 3146(a); see also VanNostrand et al.,
supra, at 20 (explaining that the 1966 Act
“established a presumption of release by
the least restrictive conditions, with an em-
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
phasis on non-monetary terms of bail”).
By emphasizing nonmonetary terms of
bail, Congress attempted to remediate the
array of negative impacts experienced by
defendants who were unable to pay for
their pretrial release, including the adverse
effect on defendants’ ability to consult
with counsel and prepare a defense, the
financial impacts on their families, a statistically less-favorable outcome at trial
and sentencing, and the fiscal burden that
pretrial incarceration imposes on society
at large. See H.R. Rep. No. 89-1541 (1966),
reprinted in 1966 U.S.C.C.A.N. 2293, 2299.
{34} Congress again revised federal bail
procedures with the Bail Reform Act of
1984, enacted as part of the Comprehensive Crime Control Act of 1984. See Bail
Reform Act of 1984, Pub. L. No. 98-473,
§ 202, 98 Stat. 1837, 1976 (codified at 18
U.S.C. §§ 3141-3150 (2012)). The legislative history of the 1984 Act explains that
Congress wanted to “address the alarming
problem of crimes committed by persons
on release” and to “give the courts adequate
authority to make release decisions that
give appropriate recognition to the danger
a person may pose to others if released.”
S. Rep. 98-225, at 3 (1983), reprinted in
1984 U.S.C.C.A.N. 3182, 3185. The 1984
Act, as amended, retains many of the key
provisions of the 1966 Act but “allows a
federal court to detain an arrestee pending trial if the Government demonstrates
by clear and convincing evidence after an
adversary hearing that no release conditions ‘will reasonably assure . . . the safety
of any other person and the community.’”
United States v. Salerno, 481 U.S. 739, 741
(1987) (omission in original) (quoting
the Bail Reform Act of 1984) (upholding
the preventive detention provisions in
the 1984 Act); see also 18 U.S.C. § 3142(a)
(providing generally the current federal
procedure for ordering either release or
detention of a defendant pending trial),
held unconstitutional on other grounds by,
e.g., United States v. Karper, 847 F. Supp.
2d 350 (N.D.N.Y. 2011).
{35} Twentieth-century advances in
pretrial justice notwithstanding, the administration of bail in the United States remains problematic. See John S. Goldkamp,
Judicial Responsibility for Pretrial Release
Decisionmaking and the Information Role
of Pretrial Services, 57 Fed. Probation 28,
30 (1993) (“Even after decades of bail reform, serious questions about the fairness
and effectiveness of pretrial release in the
United States have not been resolved.”).
A recent United States Department of
Advance Opinions
Justice report, which provides statistics
about state court felony defendants in
the nation’s seventy-five largest counties
between 1990 and 2004, reflects some
of the enduring inequalities in our nation’s system of bail. See Cohen & Reaves,
supra. The report demonstrates that, in
the last two decades, states have again
increased their reliance on commercial
surety bonds while decreasing the use of
personal recognizance releases. See id. at
1-2 (“Beginning in 1998, financial pretrial
releases, requiring the posting of bail, were
more prevalent than non-financial releases.”). As a result, the number of pretrial
inmates in jail populations has grown “at a
much faster pace than sentenced inmates,
despite falling crime rates.” Kristin Bechtel
et al., Pretrial Justice Inst., Dispelling the
Myths: What Policy Makers Need to Know
About Pretrial Research 1-2 (Nov. 2012).
Most of the defendants who remain in
custody pending trial stay in jail because
they cannot afford the bail set by the court,
not because they have been denied bail
altogether. See Cohen & Reaves, supra, at 1
(“Among [felony] defendants detained until case disposition, 1 in 6 had been denied
bail and 5 in 6 had bail set with financial
conditions required for release that were
not met.”). “Hispanics were less likely than
non-Hispanic defendants to be released,
and males were less likely than females to
be released.” Id. Twenty percent of these
detained defendants “eventually had their
case dismissed or were acquitted,” so many
of them could have avoided imprisonment
altogether if only they had the resources to
post bail. Id. at 7.
{36} To address the persistent inequities
and inefficiencies in our current administration of bail, a number of national
entities have promulgated standards and
best practices for pretrial release programs.
See, e.g., Am. Bar Ass’n, ABA Standards for
Criminal Justice: Pretrial Release (3d ed.
2007) (hereinafter ABA Standards); Nat’l
Ass’n of Pretrial Servs. Agencies, Standards
on Pretrial Release (3d ed. 2004); Nat’l
Dist. Attorneys Ass’n, National Prosecution
Standards, Standards 4-4.1 to 4-4.5, at 5657 (3d ed. 2009). Renewed interest in pretrial justice has led some commentators to
suggest that the criminal justice system in
the United States has begun to experience
a new wave of bail reform in the twentyfirst century. See Bechtel et al., supra, at 2
n.1; Schnacke et al., supra, at 21-27 (noting
that “jurisdictions across the United States
have become significantly more interested
in the topic of bail and pretrial release”).
http://www.nmcompcomm.us/
4.The New Mexico Pretrial Release
Rules
{37} The New Mexico Rules of Criminal Procedure provide the mechanism
through which a person may effectuate the
right to pretrial release afforded by Article
II, Section 13 of the New Mexico Constitution. See Rule 5-401 (providing procedures
for district courts); Rule 6-401 NMRA
(providing procedures for magistrate
courts); Rule 7-401 NMRA (providing
procedures for metropolitan court); Rule
8-401 NMRA (providing procedures for
municipal courts). New Mexico modeled
its bail rules, which were first adopted in
1972, on the federal Bail Reform Act of
1966. See NMSA 1978, Crim. P. Rule 22
(Repl. Pamp. 1980; including the May
1972 New Mexico Supreme Court order);
see also Committee commentary to Rule
5-401 (explaining that the rule is modeled
on the Bail Reform Act of 1966). Like the
Bail Reform Act of 1966, the New Mexico
bail rules establish a presumption of release by the least restrictive conditions
and emphasize methods of pretrial release
that do not require financial security. See
Rule 5-401(A); State v. Gutierrez, 2006NMCA-090, ¶ 17, 140 N.M. 157, 140 P.3d
1106 (recognizing “that the purpose of
the Federal Bail Reform Act of 1966, from
which our rule is derived, was to encourage
more releases on personal recognizance”).
{38} Originally, the only valid purpose
of bail in New Mexico was to ensure
the defendant’s appearance in court. See
Crim. P. Rule 22(a) (requiring the judge
to make a pretrial release decision that
would “reasonably assure the appearance
of the person as required”); see also State v.
Eriksons, 1987-NMSC-108, ¶ 6, 106 N.M.
567, 746 P.2d 1099 (“[T]he purpose of bail
is to secure the defendant’s attendance to
submit to the punishment to be imposed
by the court.”). To further incentivize
appearance in court, in the early 1970s
the Legislature granted courts statutory
authority to order forfeiture of bail upon
a defendant’s failure to appear, see NMSA
1978, § 31-3-2(B)(2) (1972, as amended
through 1993), and enacted separate
criminal penalties for failure to appear, see
NMSA 1978, § 31-3-9 (1973, as amended
through 1999). Following recognition
in the federal Bail Reform Act of 1984
that public safety is a valid consideration
in pretrial release decisions, this Court
amended our rules to require judges to
consider not only the defendant’s flight
risk but also the potential danger that
might be posed by the defendant’s release
to the community in determining which
conditions of release should be fashioned.
See Rule 5-401 NMRA (1990) (prescribing
that judges consider “the appearance of
the person as required” and “the safety of
any other person and the community”).
{39} If a person is bailable under Article
II, Section 13 of the New Mexico Constitution, our rules of criminal procedure
require the trial court to set the least
restrictive of the bail options and release
conditions that “will reasonably assure
appearance of the person as required”
and “the safety of any other person and
the community.” Rule 5-401(A)-(D). In
doing so, the court must evaluate the
available information about the defendant
and the extent of the flight risk and safety
concerns posed by the defendant. To guide
the courts in accomplishing this task, the
rule provides a list of factors that the court
must take into account:
the nature and circum(1)
stances of the offense charged,
including whether the offense is
a crime of violence or involves a
narcotic drug;
the weight of the evi(2)
dence against the person;
(3)
the history and characteristics of the person, including:
(a)
the person’s character and
physical and mental condition;
(b)
the person’s family ties;
the person’s employment
(c)
status, employment history and
financial resources;
the person’s past and
(d)
present residences;
the length of residence in
(e)
the community;
(f)
any facts tending to indicate that the person has strong
ties to the community;
(g)
any facts indicating the
possibility that the person will
commit new crimes if released;
(h)
the person’s past conduct,
history relating to drug or alcohol abuse, criminal history and
record concerning appearance at
court proceedings; and
(i)whether, at the time of the current offense or arrest, the person
was on probation, on parole, or
on other release pending trial,
sentencing, appeal or completion
of an offense under federal, state
or local law;
(4)
the nature and seriousness of the danger to any person
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or the community that would be
posed by the person’s release; and
any other facts tending
(5)
to indicate the person is likely to
appear.
Rule 5-401(C).
{40} Rule 5-401 prioritizes five increasingly exacting bail options pending trial:
(1) release on the defendant’s personal
recognizance; (2) release upon the execution of an unsecured appearance bond; (3)
release upon the execution of an appearance bond accompanied by a cash deposit
to the court of a specified percentage of
the total amount set for bail; (4) release
upon the execution of a bond secured by
property belonging to either the defendant
or an unpaid surety; and (5) release upon
either execution of a bond by a licensed
bail bond agent or execution of an appearance bond by the defendant accompanied
by a cash deposit of one hundred percent of
the amount set for bail. See Rule 5-401(A)(B). The trial court must consider this
hierarchy of release options in the order set
forth in the rule, beginning with the least
restrictive option. Id.; see Gutierrez, 2006NMCA-090, ¶¶ 9-10 (specifying that the
options “‘are set forth in the order of priority [in which] they are to be considered by
the judge’” (quoting Rule 5-401 Committee
commentary)). Whenever possible, the
court should dispense with the requirement of any financial security and should
release the defendant either on the defendant’s “personal recognizance or upon
the execution of an unsecured appearance
bond in an amount set by the court.” Rule
5-401(A). But if the court makes specific
written findings demonstrating that nonfinancial release options “will not reasonably assure the appearance of the person as
required or will endanger the safety of any
other person or the community,” the court
may require the defendant to execute one
of the types of secured bonds enumerated
in the rule. Rule 5-401(B).
{41} In addition to choosing an appropriate bail option, the trial court should consider whether to impose additional nonmonetary conditions to limit and monitor
the defendant’s conduct while released
pending trial. See Rule 5-401(D). The court
may condition the defendant’s continued
pretrial release on refraining from further
criminal conduct while awaiting trial. See
Rule 5-401(D)(1). Rule 5-401(D)(2) sets
forth a range of other potential conditions
that the court may consider and instructs
the court to order the least restrictive condition or combination of conditions that
26
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“will reasonably assure the appearance of
the person as required, the safety of any
other person and the community and the
orderly administration of justice.” The
court has a duty to tailor the conditions
of pretrial release to the needs and risks
posed by each individual defendant. See id.
For example, if a defendant is charged with
a crime of violence against a household
member, the additional conditions might
include a limitation on the possession
of weapons and a requirement that the
defendant avoid contact with the alleged
victim or witnesses. See Rule 5-401(D)(2)
(e), (h). Or, if the defendant is charged with
a crime involving controlled substances,
the court might order the defendant to
undergo drug testing and substance abuse
treatment. See Rule 5-401(D)(2)(j)-(k).
5.The District Court Requirement
of a Monetary Bond in This Case
Was Unsupported by Evidence and
Contrary to Law
{42} In brief, a pretrial release determination under the New Mexico Constitution and our rules of criminal procedure
includes three main inquiries. First, is the
defendant bailable pending trial, or should
the defendant be detained under one of
the exceptions in Article II, Section 13
of the New Mexico Constitution? Next,
if bailable, which of the release options
stated in Rule 5-401 is the least restrictive
in reasonably assuring appearance while
maintaining the safety of the community?
See Rule 5-401(A)-(B). And finally, should
any additional nonmonetary conditions
of release be imposed to place limitations
on the defendant’s conduct while released
pending trial? See Rule 5-401(D).
{43} This Court will reverse a district
court’s pretrial release decision “only if it
is shown that the decision: (1) is arbitrary,
capricious or reflects an abuse of discretion; (2) is not supported by substantial
evidence; or (3) is otherwise not in accordance with law.” Rule 12-204(C). Although
this Court may set aside a pretrial release
order for any one of these three reasons,
we conclude in this case that reversal is
warranted on all three grounds. See N.M.
Attorney Gen. v. N.M. Pub. Regulation
Comm’n, 2013-NMSC-042, ¶ 10, 309 P.3d
89 (explaining that a decision “is arbitrary
and capricious if it is unreasonable or
without a rational basis, when viewed in
light of the whole record” (internal quotation marks and citation omitted)); State v.
Cebada, 1972-NMCA-140, ¶ 9, 84 N.M.
306, 502 P.2d 409 (“An abuse of discretion
occurs when the court exceeds the bounds
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
of reason, all the circumstances before it
being considered.”). “Substantial evidence
is such relevant evidence that a reasonable
mind would find adequate to support a
conclusion.” State ex rel. King v. B&B Inv.
Group, Inc., 2014-NMSC-024, ¶ 12, 329
P.3d 658 (internal quotation marks and
citation omitted).
{44} The district court necessarily determined that Defendant was bailable
by entering a pretrial release order at
Defendant’s arraignment in 2011 but then
imposed the most restrictive type of bail
available under Rule 5-401, a full cash or
surety bond in the amount of $250,000. See
Rule 5-401(B)(3). The court also prohibited Defendant from possessing firearms,
alcohol, or illegal drugs; violating the law;
leaving the county without the court’s permission; entering liquor establishments; or
making contact with any alleged victim,
codefendant, or witness in the case. Additionally, the district court required that
Defendant maintain weekly contact with
his attorney and notify his attorney of any
changes to his contact information.
{45} It is not clear from the record before
this Court what, if any, information the
district court had when it first entered
the pretrial release order at Defendant’s
arraignment, and we do not review that
earlier decision. We address only the ruling
that has been appealed to us, the refusal to
modify the $250,000 cash or surety bond
that Defendant was unable to post.
{46} After the first bail review hearing,
the district court found there were no
facts indicating that Defendant would
likely “commit new crimes,” pose “a danger to anyone,” or “be unlikely to appear
if released.” The information Defendant
presented at the second review hearing
was consistent with the information he
presented in support of his first motion. The State failed to present any new
information at the second hearing or to
controvert Defendant’s evidence and continued to rely solely on the nature of the
crime charged. The district court, without
a further written order, declined to change
the conditions of release, stating merely
that Defendant “may present a danger of
either flight or to other members of the
community,” in contrast to the court’s own
finding following the first motion hearing
that Defendant did not pose a flight or
safety risk (emphasis added).
{47} Contrary to the explicit requirements set forth in our rules, the district
court failed to explain in the record any
rational connection between the facts in
Advance Opinions
the record and the ruling of the court,
perhaps because there was no such connection. See Rule 5-401(G) (“Unless the
release order is amended and the person
is thereupon released, the court shall state
in the record the reasons for continuing
the amount of bail set.”); see also Gutierrez, 2006-NMCA-090, ¶ 21 (cautioning
judges to follow the directives of Rule
5-401 when “exercising their discretion to
set conditions of release”). We hold that the
district court’s decision was arbitrary and
capricious and that the court abused its
discretion by issuing a ruling at the second
motion hearing that was contrary to both
the record and the district court’s previous
findings of fact, without articulating any
principled reason or factual basis for the
decision.
{48} All of the evidence Defendant
presented supported a modification of
Defendant’s bail, and none of the evidence
supported the district court’s decision
to keep the $250,000 bond in place. The
State failed to controvert Defendant’s
evidence, offered no evidence of its own,
and declined to cross-examine Defendant’s
witnesses. The district court denied Defendant’s first motion despite the court’s
express finding that there were no facts
indicating that Defendant would pose a
flight or safety risk if released. The district
court denied Defendant’s second motion
without entering any findings of fact to
support its decision, explaining only that
“the nature of the allegations” and “the
exposure that is contained within the
various counts of the indictment” led the
court to conclude that releasing Defendant
“may present a danger of either flight or to
other members of the community.” This
conclusion is inconsistent with the record
and unsupported by substantial evidence.
{49} The district court’s decision was contrary to Rule 5-401, which sets forth the
mandatory procedure for district courts
to follow when making a pretrial release
decision. The district court was required
to evaluate and balance each of the factors
set forth in Rule 5-401(C) and to impose
the least restrictive of the bail options and
release conditions necessary to reasonably
assure that Defendant would not pose a
flight or safety risk. The record makes it
clear that the court did not comply with
the law.
{50} The findings of fact the district court
entered following the first motion hearing
demonstrate that all of the information
regarding Defendant’s personal history
and characteristics supported a reduction
http://www.nmcompcomm.us/
of Defendant’s bond. The district court
found that Defendant “would have an
appropriate place to live with his father,”
that Defendant’s “former employers were
seeking his return to employment,” and
that Defendant’s “ties in the community
are longstanding and continuing with the
familial support of his parents.” The district
court also found that Defendant had no
pending criminal charges, no alcohol or
substance abuse problems, and no history
of violence outside the allegations in this
case. And the district court found that
Defendant had “been entirely compliant
for the entirety of his pretrial incarceration
of over 2 years and 4 months” and had “appeared timely and without incident at all
scheduled hearings in this case.” Finally,
the district court documented the absence
of any facts indicating that Defendant
would predictably “commit new crimes,”
pose “a danger to anyone,” or “be unlikely
to appear if released.” Although the district
court noted that it had drawn no conclusions “as to the weight of the evidence”
against Defendant, it denied Defendant’s
first motion solely because of “the nature
and seriousness of the alleged offense.”
{51} It is clear that the district court based
its pretrial release decision on only one of
the factors identified in Rule 5-401(C)—
“the nature and circumstances of the
offense charged”—to the exclusion of all
other factors. While a judge has discretion
to evaluate and balance each of the factors
set forth in Rule 5-401(C), the judge “shall”
consider and weigh all of the factors, and
no single factor automatically controls. See
Rule 5-401(C). Appropriately, the district
court considered the charges and potential
punishment in this case in assessing flight
risk and danger to the community posed
by this Defendant, but the district court
failed to balance this information with the
evidence presented in support of Defendant’s motion. Because the district court
failed to give proper consideration to all
of the factors set forth in Rule 5-401(C),
its continued imposition of the $250,000
bond was contrary to law.
{52} Neither the Constitution nor our
rules of criminal procedure permit a judge
to base a pretrial release decision solely on
the severity of the charged offense. Bail is
not pretrial punishment and is not to be
set solely on the basis of an accusation of
a serious crime. As the United States Supreme Court has emphasized, “[t]o infer
from the fact of indictment alone a need
for bail in an unusually high amount is an
arbitrary act.” Stack v. Boyle, 342 U.S. at
6. The State has argued that $250,000 is a
standard bond for an offense that can result
in life imprisonment. This argument runs
contrary to both the letter and purpose of
Rule 5-401, which requires the judge to
make an informed, individualized decision
about each defendant and does not permit
the judge to put a price tag on a person’s
pretrial liberty based solely on the charged
offense. See ABA Standards, Standard
10-5.3(e), at 110 (“Financial conditions
should be the result of an individualized
decision taking into account the special
circumstances of each defendant, the
defendant’s ability to meet the financial
conditions and the defendant’s flight risk,
and should never be set by reference to a
predetermined schedule of amounts fixed
according to the nature of the charge.”).
Empirical studies indicate that the severity of the charged offense does not predict
whether a defendant will flee or reoffend
if released pending trial. See Curtis E.A.
Karnow, Setting Bail for Public Safety, 13
Berkeley J. Crim. L. 1, 14-16 (2008) (reviewing studies indicating that “evidence
does not support the proposition that the
severity of the crime has any relationship
either to the tendency to flee or to the likelihood of re-offending”); 4 Wayne LaFave
et al., Criminal Procedure, § 12.1(b), at 12
(3d ed. 2007) (citing studies and stating
that the “likelihood of a forfeiture does
not appear to depend upon the seriousness of the crime”). Setting money bail
based on the severity of the crime leads
to either release or detention, determined
by a defendant’s wealth alone instead of
being based on the factors relevant to a
particular defendant’s risk of nonappearance or reoffense in a particular case. See
Hairston v. United States, 343 F.2d 313,
316-17 (D.C. Circ. 1965) (Bazelon, C.J.,
dissenting) (“Setting high bail to deny
release discriminate(s) between the dangerous rich and the dangerous poor and
masks the difficult problems of predicting
future behavior which is, in itself, fraught
with danger of excesses and injustice.”
(alteration in original) (internal quotation
marks and citation omitted)). Because of
this, judges “should exercise care not to
give inordinate weight to the nature of the
present charge in evaluating factors for the
pretrial release decision.” ABA Standards,
Standard 10-1.7, at 50.
{53} Neither the New Mexico Constitution nor our rules of criminal procedure
permit a judge to set high bail for the
purpose of preventing a defendant’s
pretrial release. See N.M. Const. art. II, §
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
27
Advance Opinions
13; Rule 5-401; see also Bandy, 81 S. Ct. at
198 (“It would be unconstitutional to fix
excessive bail to assure that a defendant
will not gain his freedom.”). Intentionally
setting bail so high as to be unattainable is simply a less honest method of
unlawfully denying bail altogether. If a
defendant should be detained pending
trial under the New Mexico Constitution, then that defendant should not be
permitted any bail at all. Otherwise the
defendant is entitled to release on bail,
and excessive bail cannot be required.
N.M. Const. art. II, § 13; cf. 18 U.S.C.
§ 3142(c)(2) (providing that a federal
“judicial officer may not impose a financial condition that results in the pretrial
detention of the person”), held unconstitutional on other grounds by, e.g., Karper,
847 F. Supp. 2d 350.
{54} We understand that this case may
not be an isolated instance and that
other judges may be imposing bonds based
solely on the nature of the charged offense
without regard to individual determinations of flight risk or continued danger to
28
http://www.nmcompcomm.us/
the community. We also recognize that
some members of the public may have the
mistaken impression that money bonds
should be imposed based solely on the
nature of the charged crime or that the
courts should deny bond altogether to
one accused of a serious crime. We are not
oblivious to the pressures on our judges
who face election difficulties, media attacks, and other adverse consequences if
they faithfully honor the rule of law when
it dictates an action that is not politically
popular, particularly when there is no way
to absolutely guarantee that any defendant
released on any pretrial conditions will not
commit another offense. The inescapable
reality is that no judge can predict the
future with certainty or guarantee that
a person will appear in court or refrain
from committing future crimes. In every
case, a defendant may commit an offense
while out on bond, just as any person who
has never committed a crime may commit
one. As Justices Jackson and Frankfurter
explained in reversing a high bond set by
a federal district court, “Admission to bail
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
always involves a risk that the accused will
take flight. That is a calculated risk which
the law takes as the price of our system of
justice.” Stack v. Boyle, 342 U.S. at 8 (Jackson, J., joined by Frankfurter, J., specially
concurring).
III.CONCLUSION
{55} For the reasons stated in this opinion, we reaffirm our prior order holding
that the district court unlawfully failed
to release Defendant pending trial on the
least restrictive of the bail options and
release conditions necessary to reasonably
assure Defendant’s appearance and the
safety of the community, our reversal of
the district court’s continued imposition
of a $250,000 bond, and our order that
Defendant be released on nonmonetary
conditions pending trial.
{56} IT IS SO ORDERED.
CHARLES W. DANIELS, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
WILLIAM A. SANCHEZ
Retired District Judge
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28 GENERAL CREDITS
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This is an intensive 2
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Community enrollment is limited to nine,
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Classes held at
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“TAKING AND DEFENDING DEPOSITIONS”
March 20, 21 & 22 and April 10, 11, & 12 Cost $1095.00
PROGRAM DIRECTOR – STEVE SCHOLL
This course has been approved by the NM MCLE Board for 31 general and 4.5
ethics/professionalism CLE credits. We will report a maximum of 24 credits (20
general, 4 ethics) from this course to NM MCLE, 12 (10 general, 2 ethics) of which
MCLE will carry over to meet 2016 requirements, as provided by MCLE Rule 18-201.
Parking is free for all attendees in the Law School “L” lot only.
How do you deal with obstreperous counsel? How do you effectively defend? How do
you get the answers you seek under court-mandated time constraints? How do you
get optimal information from expert witnesses? How do you test theories and close
off avenues of escape? After this course, there will be no surprises at depositions and
nothing you cannot handle in taking the effective deposition. This intensive 2 weekend “learning by doing” course offered by the School of Law to current upper class
law students and members of the legal profession can show you how. Attendance
is mandatory for all classes, both weekends. You will practice taking and defending
depositions of lay and expert witnesses.
Community enrollment is limited to ten (10)
Registration DEADLINE is Monday, March 2, 2015
Register now for this valuable opportunity to polish
these fundamental practice skills!
For more information and on-line registration visit:
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or contact [email protected] or (505)277-0680
1117 Stanford Dr. NE, Albuquerque
30
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
SUBMISSION DEADLINES
All advertising must be submitted via
e-mail by 4 p.m. Wednesday, two weeks
prior to publication (Bulletin publishes
every Wednesday). Advertising will
be accepted for publication in the Bar
Bulletin in accordance with standards
and ad rates set by the publisher and
subject to the availability of space. No
guarantees can be given as to advertising
publication dates or placement although
every effort will be made to comply
with publication request. The publisher
reserves the right to review and edit
ads, to request that an ad be revised
prior to publication or to reject any ad.
Cancellations must be received by
10 a.m. on Thursday, 13 days prior
to publication.
For more advertising
information, contact:
Marcia C. Ulibarri at 505-797-6058 or
email [email protected]
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• Strong Verbal and Written Communication Skills
[email protected]
505-366-9931
Classified
Positions
13th Judicial District Attorney
Senior Trial Attorney, Assistant Trial
Attorney, Associate Trial Attorney
Cibola, Sandoval, Valencia Counties
Senior Trial Attorney - This position requires
substantial knowledge and experience in
criminal prosecution, rules of criminal procedure and rules of evidence, as well as the ability
to handle a full-time complex felony caseload.
Admission to the New Mexico State Bar and a
minimum of five years as a practicing attorney
are also required. Assistant Trial Attorney The 13th Judicial District Attorney’s Office is
accepting applications for an entry to mid level
attorney to fill the positions of Assistant Trial
Attorney. This position requires misdemeanor
and felony caseload experience. Associate Trial Attorney - an entry level position for Cibola
(Grants), Sandoval (Bernalillo) or Valencia
(Belen) County Offices. The position requires
misdemeanor, juvenile and possible felony
cases. Upon request, be prepared to provide a
summary of cases tried. Salary for each position is commensurate with experience. Send
resumes to Kathleen Colley, District Office
Manager, PO Box 1750, Bernalillo, NM 87004,
or via E-Mail to: [email protected].
Deadline for submission of resumes: Open
until positions are filled.
Assistant District Attorney
The Fifth Judicial District Attorney’s office has
an immediate position open to a new or experienced attorney. Salary will be based upon the
District Attorney Personnel and Compensation
Plan with starting salary range of an Associate Trial Attorney to a Senior Trial Attorney
($41,685.00 to $72,575.00). Please send resume
to Janetta B. Hicks, District Attorney, 400 N.
Virginia Ave., Suite G-2, Roswell, NM 882016222 or e-mail to [email protected].
Vacancy Announcement
Tribal Court Judge
Las Cruces Attorney
The Pueblo of Isleta is seeking applications for
a Tribal Court Judge for the 2015-2016 Term.
This position is appointed by the Pueblo’s
Governor and must receive the concurrence
of two-thirds (2/3) majority of Tribal Council. The Pueblo of Isleta Tribal Court has
jurisdiction over all criminal and civil cases
included in the Code of Laws of the Pueblo of
Isleta and all other matters lawfully brought
before the Court. Minimum Qualifications:
High School Graduate with strong preference
to a license attorney who has practiced in the
field of employment law and Native American
Indian law. Preference is also given to applicants with Tribal court certification from
an accredited institution. Other Relevant
Qualifications: Experience in Federal Indian
law and Tribal law; General knowledge of
Indian tribes, including the Pueblo of Isleta;
Knowledge of courts that administer justice,
including criminal and civil court systems;
Ability to hear court cases and render oral
and written decisions based on interpretation of law and findings of fact; Ability to
interpret laws, including the Pueblo of Isleta
Tribal Constitution, tribal ordinances, Tribal
Council resolutions, Law and Order Code,
and other relevant law; Successful completion
of drug screening test and background check.
Indian Preference: Preference is given first to
Isleta Pueblo members, Pueblo of Isleta member descendants, then other Native American
Tribal members. Annual salary will be based
on experience. Send a completed Pueblo of
Isleta Employment Application, Resume and
Letter of Interest to: Pueblo of Isleta Human
Resources P.O. Box 1270, Isleta, New Mexico
87022, or by fax at (505) 869-7579. For a full
job description please visit www.isletapueblo.
com “Career’s Section of the home page.
Closing Date: January 23, 2015, or until filled.
Holt Mynatt Martínez, P.C., an AV-rated
law firm in Las Cruces, New Mexico is
seeking an associate attorney with 0–3
years of experience to join our team. Duties
would include providing legal analysis and
advice, preparing and filing legal pleadings and documents, performing legal
research, conducting pretrial discovery,
preparing for and attending administrative and judicial hearings, civil jury trials
and post-trial activities. The firm’s practice
areas include insurance defense, civil rights
defense, commercial litigation, contracts
and municipal law. Successful candidates
will have strong organizational and writing
skills, exceptional communication skills,
and the ability to interact and develop collaborative relationships. Excellent salary
and benefits. Please send your cover letter,
resume, writing sample and references to
[email protected].
New Mexico Association of Counties
Litigation Attorneys
Non-profit local governmental association
with offices in Santa Fe and Albuquerque is
seeking dynamic, energetic in-house litigation attorneys for new legal bureau. Successful candidates shall have significant litigation experience. Background in handling
employment or civil rights matters a plus.
Opportunity to have impact on structure
and development of new in-house department. Will be responsible for defense of civil
rights matters and for providing counsel to
county members on employment and other
legal issues. Some travel required. Excellent
benefits package and working environment.
Email resume and references by COB Friday,
February 6, 2015 to [email protected].
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
31
CLE Program Manager
State Bar of New Mexico seeks FT CLE
Program Manager. Successful applicant will
have project, financial, marketing and staff
management experience. Prior work in legal
field or adult education a plus. Compensation
$45,000 - $50,000 DOE. Email cover letter
and resume to [email protected], EOE.
Experienced Attorney
Albuquerque Business Law is seeking an
experienced attorney to join a growing law
firm. We are currently expanding and are
open to many practice areas. However, you
must be licensed to practice in the state of
New Mexico. The ideal candidate is a highly
motivated professional that can take initiative and work independently. If interested,
please send a cover letter, resume, and salary
requirements to [email protected].
First American Title Insurance
Company, Albuquerque, NM
Area Underwriting Counsel, admitted to
practice in NM with strong knowledge of
RE law. Apply only via: www.firstam.com/
careers and enter Req# 28868
Executive Director –
NM Board of Bar Examiners
The Board of Bar Examiners is responsible
for administering the bar examination and
determining the character and fitness and
the eligibility for admission of all applicants seeking admission to the bar in New
Mexico. The Executive Director provides
management and support for all aspects of
the bar admissions process. The position
is in Albuquerque, NM. Managerial and
administrative experience in a legal setting
involving multiple complex issues is desired.
Starting salary range is $50,000 to $80,000
depending on experience. Benefits will be
negotiated. Transmit resume and cover letter
by e-mail to [email protected] or mail to
9420 Indian School Road NE, Albuquerque,
NM 87112. Deadline to apply is February
13, 2015. A detailed job description is on the
Board’s website at www.nmexam.org under
“Contact Us”. The Board of Bar Examiners is
an equal opportunity employer.
Tribal Water Law Attorney Wanted
The Jicarilla Apache Nation is currently soliciting a law firm to provide the Nation legal
representation specific to its settled water
rights, adjudicated water rights, pending
adjudications, participating in national water
policy issues and contracts in association
to its water marketing program. Interested
parties can submit a letter of interest to the
Nation’s Office of General Council at darr.
[email protected]
32
Lawyer-A Position
Santa Fe
The NM Environment Department Office
of General Counsel seeks to fill a Lawyer-A
position in Santa Fe. This position requires a
Juris Doctorate and at least five (5) years of experience in the practice of law in one or more
of the following areas: administrative law,
drafting or review of contracts, rulemaking,
legislative affairs or representation of a public
agency. Appellate experience is preferred
and specialized knowledge in environmental law or natural resources law is desired.
Applicant must be licensed as an attorney
by the Supreme Court of New Mexico, be in
good standing and have no history of professional disciplinary actions, or applicant must
be qualified to apply for a limited practice
license, which requires graduation from an
accredited school of law, licensure (in good
standing) in another state and sitting for
the next eligible NM State Bar exam. Salary
ranges from $21.53/hr. to $37.46/hr. Previous
applicants must resubmit an application to be
considered for the position. To apply: access
the website for the NM State Personnel Office
(SPO), www.spo.state.nm.us and click on:
Apply for a State Job. The State of New Mexico
is an Equal Opportunity Employer.
Trial Lawyer
GREAT PAY for a hungry, compassionate,
hard-working and successful trial lawyer who
wants to fight for injured plaintiffs. We need
someone with a track record of loyalty, tenacity, and successful results at trial. Less experienced lawyers will be considered if extremely
qualified and extremely motivated. See our
Mission Statement at www.ParnallLaw.com.
Email cover letter, resume, references, and
university and law school grade transcripts
to [email protected].
Experienced Attorney
Experienced attorney sought to assist with
Indian water rights litigation and related matters on behalf of Tribal clients of busy, small
law office in downtown Santa Fe. Contract
attorney or associate arrangement will be
considered. Compensation DOE. Please email
or fax cover letter, resumé, writing sample,
and reference list to janelle@jordan-lawfirm.
com, (505) 726-4689.
Lawyer
The firm of Wiggins, Williams & Wiggins,
P.C. is seeking a lawyer with up to five years
of experience in general practice with an
emphasis on civil litigation. Applicants with
a strong academic background are preferred.
The firm offers excellent benefits and a flexible work schedule. Please send a resume,
references and a writing sample to Celina
Salazar, Firm Administrator, P.O. Box 1308,
Albuquerque, New Mexico 87103-1308 or by
email to [email protected]. All inquiries
will be kept confidential.
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
Managing Attorney
Our Managing Attorney will manage 3 to 4
attorney-team leaders toward achieving very
challenging goals in several program areas;
engage in some program work; help lead the
organization and be directly responsible for
maintaining a very high level of excellence in
organizational performance. Requirements:
be an intellectual peer with some very smart
attorneys, adept at strategic and tactical planning, detail-oriented and well organized, a
highly competent advocate and litigator, and
a skilled manager. Must also have a law degree
with at least ten years experience in plaintiffs’ litigation (preferably civil rights) and
a demonstrated commitment to addressing
poverty and/or equal access to justice issues.
Preferred: experience with administrative
advocacy, familiarity with poverty law and
strong Spanish skills. Apply in confidence
by sending a letter of interest and resume to
[email protected] . EEOE. Learn
more at www.nmpovertylaw.org. Requirements: be an intellectual peer with some
very smart attorneys, adept at strategic and
tactical planning, detail-oriented and well
organized, a highly competent advocate
and litigator, and a skilled manager. Must
also have a law degree with at least ten years
experience in plaintiffs’ litigation (preferably
civil rights) and a demonstrated commitment
to addressing poverty and/or equal access
to justice issues. Preferred: experience with
administrative advocacy, familiarity with
poverty law and strong Spanish skills
Associate Attorney
Busy law firm practicing in the areas of
Family Law, Worker’s Compensation and
Personal Injury seeking Associate Attorney
to immediately join our growing firm. Attorney will primarily practice in the area of
Family Law and will be responsible for legal
analysis, representation, document preparation, mediations and litigation. Salary will
be consistent with experience. Please submit
cover letter and resume to [email protected]. No phone calls.
Assistant Trial Attorney,
Senior Trial Attorney, and
Deputy District Attorney positions
The Ninth Judicial District Attorney’s Office,
located in Curry and Roosevelt Counties, is
now accepting resumes for Assistant Trial
Attorney, Senior Trial Attorney, and Deputy
District Attorney positions. Salary will be
commensurate with experience and budget
availability. Excellent benefits available.
Please send a cover letter, resume and references to Andrea Reeb, District Attorney, 417
Gidding, Ste 200 Clovis, NM 88101.
Legal Notice
Request for Proposal Number:
15-0001
Title: Impartial Hearing Officer (IHO) services
on-behalf of NMDVR. Issued by: State of New
Mexico, Division of Vocational Rehabilitation
(NMDVR). Purpose: The purpose of this
Request for Proposals (RFP) is to procure
one or more Offerors to provide Impartial
Hearing Officer (IHO) services for New
Mexico Division of Vocational Rehabilitation
(NMDVR) administrative proceedings involving vocational rehabilitation or independent
living services. One of the major goals for the
NMDVR is to put individuals with disabilities
to work through its vocational rehabilitation
services program. Another goal is to assist
individuals with disabilities in becoming and
remaining as independent as possible through
the NMDVR’s independent living programs.
An NMDVR applicant or eligible individual
may request an administrative hearing if the
individual is dissatisfied with a determination
made by NMDVR personnel pertaining to
issues such as eligibility, service provision or
case closure. The IHO determines whether the
NMDVR’s position will be upheld or whether
the individual’s position should be adopted by
the NMDVR. The IHO makes decisions applying applicable State plans, Federal vocational
rehabilitation and independent living laws
and regulations, and State rules and policies
that are consistent with Federal requirements.
The provisions of the RFP fit within New
Mexico Division of Vocational Rehabilitation
(NMDVR) strategic framework and is jointly
charged with the State Rehabilitation Council
(SRC). This RFP is designed to solicit proposals from qualified individuals who would like
to be hearing officers. The cases are required
by law to be assigned randomly among IHOs
(unless an IHO is jointly agreed upon by the individual and the NMDVR outside of the usual
assignment procedures.) The administrative
hearings may be held in any city in which
the NMDVR has an office; or occasionally
at another location (such as the individual’s
home) under unusual circumstances. The
IHO may not be an employee of NMDVR
or a member of the SRC. General information: NMDVR has assigned a Procurement
Manager who is responsible for the conduct
of this procurement whose name, address,
telephone number and e-mail address are listed
below: Randy Herrera, New Mexico Division
of Vocational Rehabilitation, Santa Fe, NM
87505. Telephone Number (505) 954-8544.
Email: [email protected] Issuance:
The Request for Proposals will be issued on
Friday, January 23, 2015. Interested persons
may access and download the document copy
of the RFP from the NMDVR website at:
http://www.dvrgetsjobs.com or by contacting
Randy Herrera, Procurement Manager, and
requesting a copy of RFP#15-0001 Impartial
Hearing Officer (IHO) services on-behalf of
NMDVR. Any questions or inquiries concern-
ing this request including obtaining referenced
documents, should be directed to the NMDVR
Procurement Manager. Pre-Proposal Conference: A pre-proposal conference will be held
on Wednesday, February 4, 2015, beginning at
10:00 am Mountain Standard Time/Daylight
for the purpose of reviewing the Request for
Proposal as indicated in the sequence of events.
Proposal Due Date and Time: Proposals must
be received by the Procurement manager no
later than 3:00 PM Mountain Standard Time/
Daylight on Friday, March 6, 2015. Sealed proposals must be sent to the attention of Randy
Herrera, Procurement Manager, Division of
Vocational Rehabilitation, 435 St. Michael’s
Drive, Building D, Santa Fe, New Mexico
87505. Proposals received after this deadline
will not be accepted.
Senior Children’s Court Attorney
Position
The Children, Youth and Families Department
is seeking to fill a vacant Children’s Court
Attorney position to be housed in offices in
Gallup and Grants, New Mexico. Salary range
is up to $68, 556.80 annually, depending on
experience and qualifications. The attorney
will represent the Department in abuse/neglect and termination proceedings and related
matters in McKinley and Cibola counties. The
ideal candidate will have experience in the
practice of law totaling at least four years and
New Mexico licensure is required. Benefits
include medical, dental, vision, paid vacation,
and a retirement package. For information,
please contact; David Brainerd, Managing
Attorney, at (505) 327-5316 ext. 1114. To apply
for this position, go to www.state.nm.us/spo/.
The State of New Mexico is an EOE.
Senior Trial Prosecutor/Assistant
District Attorney
The 12th Judicial District Attorney is seeking a prosecutor for the Alamogordo and the
Carrizozo office. Experienced preferred, but
will train the right candidate. Salary DOE.
Please send resume and cover letter via
email to [email protected] or jwhiteley@
da.state.nm.us. If you have any questions,
please contact Joan Whiteley, Office Manager,
for more information at 575-437-3640. We
are an EOE.
Associate Attorney Position
Riley, Shane & Keller, P.A., an Albuquerque
AV-rated defense firm, seeks an Associate to
help handle our increasing case load. We
are seeking a person with one to five years
experience. Candidate should have a strong
academic background as well as skill and
interest in research, writing and discovery
support. Competitive salary and benefits.
Please fax or e-mail resumes and references
to our office at 3880 Osuna Rd., NE, Albuquerque, NM 87109 c/o Office Manager (fax)
505-883-4362 or [email protected]
Eleventh Judicial District
Attorney’s Office, Div II
The McKinley County District Attorney’s Office is currently seeking immediate resumes
for one (1) Senior Trial Attorney. Persons who
are in good standing with another state bar or
those with New Mexico criminal law experience in excess of 5 years are welcome to apply.
The McKinley County District Attorney’s
Office provides regular courtroom practice
and a supportive and collegial work environment. Enjoy the spectacular outdoors in the
adventure capital of New Mexico. Salaries are
negotiable based on experience. Submit letter
of interest and resume to Kerry Comiskey,
Chief Deputy District Attorney, 201 West
Hill, Suite 100, Gallup, NM 87301, or e-mail
letter and resume to [email protected].
nm.us by 5:00 p.m. February 13, 2015.
Attorney
The New Mexico Environmental Law Center,
a non-profit public interest law office seeks an
attorney to represent New Mexico community and environmental groups and Pueblos
in their efforts to protect their air, land, water,
and public health and to seek environmental
justice. Office based in Santa Fe; casework
throughout New Mexico. Minimum of five
years of experience, including litigation
before administrative agencies and courts,
required. New Mexico bar membership preferred. Competitive non-profit salary DOE;
generous benefits. Send applications (a cover
letter, resume, writing sample, and three references) to Yana Merrill at ymerrill@nmelc.
org or at 1405 Luisa Street, Suite 5, Santa Fe,
N.M. 87505. Applications will be received
until the position is filled. No telephone calls.
The Law Center is an equal opportunity
employer; women and people of color are
encouraged to apply. www.nmelc.org
Attorneys Needed
1 requires litigation exp. for court hearings
&/or trials, mediations, discovery, mentoring
newer attorneys...2nd attorney, 0-3 yrs exp.
Must be able to multi-task in a high volume,
fast-paced, reputable, rapidly growing law
firm rep. numerous nationwide banking clients. Banking, Civil, and Bankruptcy exp. a
plus. Nice office in the Journal Center area &
great training program – be a part of our new
staff addition & building expansion! Join our
successful & growing firm, where promoting
positivity and friendly environment are essential to the role. Good benefits (hol, vac,
sick, health, dent, retir. & more). Submit in
conf. cover letter, resume, sal hist & req to
[email protected] Law School Graduates Recently Passing or Taking February Bar
Exam also Encouraged to Apply with possible
transition to Associate Attorney
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
33
Assistant Trial Attorney
The Third Judicial District Attorney’s Office,
located in Dona Ana County, is now accepting resumes for an Assistant Trial Attorney.
This position is open experienced attorney’s.
Salary will be based upon the New Mexico’s
District Attorney Personnel and Compensation Plan with a starting salary range of
$47,443.00. Excellent benefits available.
Please send a cover letter, resume, and references to Whitney Jones, Human Resources,
845 N. Motel Blvd. Second Floor, Suite D., Las
Cruces, NM 88007 or via e-mail WJones@
da.state.nm.us.
Las Cruces Paralegal
Miller Stratvert PA is seeking a highly motivated and experienced litigation paralegal
with at least 3 years of relevant experience
for the Las Cruces Office. Excellent writing
and proofreading skills, legal terminology
proficiency, organizational skills, and MS
Word/Outlook/Adobe Acrobat proficiency
required. ProLaw experience preferred.
Self-motivation and the ability to work with
minimal supervision in a busy, fast-paced
environment is a must. Competitive salary,
excellent benefits and positive work environment. E-mail resume to cmanning@mstlaw.
com or call 505-842-1950.
Paralegal
Barudin Law Firm has an immediate opening
for an experienced paralegal with at least 8
years of litigation experience. We are an uptown plaintiff ’s AV rated firm. Great benefits,
very interesting cases, and a supportive and
fun working environment. Must have experience with Odyssey, CM/ECF and be a true
self starter. Fax a resume and a list of references to 505-271-1888, or email to tbarudin@
barudinlaw.com.
Receptionist/Legal Assistant
Two attorney firm seeking motivated person
to take on varied responsibilities in rapidly
growing office. Duties include general administrative work assisting attorneys with
scheduling, correspondence, legal fi ling and
receptionist duties. Qualified candidates are
self-motivated, have at least one year legal
secretary experience, possess exceptional
computer skills, are proficient in e-fi ling and
court rules, and willing to work in a developing business environment. Email resume and
salary requirements to [email protected].
Taos Conference and Office Space
Services
Office Work
FREELANCE, temporary, PT legal office
work, short assignments OK. GLORIA 505615-1802
Office Space
Professional Office space sublet
in Santa Fe:
Shared central services, including reception
and conference room. Rent $700 / mo. Contact Tom Simon 505-670-3007.
Furnished Offices for Rent
Two furnished offices for rent, one block
from courthouses, all amenities: copier, fax,
telephone system, conference room, internet,
phone service, call Ramona for more information, 243-7170.
620 Roma N.W.
Taos conference and office space available
for depositions and mediations. Call Robyn
575-758-1225
Miscellaneous
Attention Attorneys:
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference rooms, a large waiting area, access to
full library, receptionist to greet clients and
take calls. Call 243-3751 for appointment to
inspect.
A $1,000 Finder’s Fee is being offered for
anyone who can produce a copy of a Last Will
and Testament for VIRGINIA D. BENOIT
prepared between 2000 and 2005. Contact
Roger Stansbury, Esq. 505-275-0017 or John
Benoit 513-254-8045.
NEW MEXICO LAWYERS and JUDGES ASSISTANCE PROGRAM (JLAP)
Through JLAP, I’ve been given the freedom to become
the person that I’ve always wanted to be. This
program saved my life and my family.
–SM
Thanks to JLAP, I am happier,
healthier and stronger than
I have ever been in my
entire life!
–KA
Free, confidential assistance to help identify and address problems
with alcohol, drugs, depression, and other mental health issues.
Help and support are only a phone call away.
Confidential assistance – 24 hours every day.
Judges call 888-502-1289
Lawyers and law students call 505-228-1948 or 800-860-4914
www.nmbar.org
34
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
When First
Impressions Matter
TED C. BACA
Mary Ann R. Burmester
NM Divorce & Custody Law LLC
(505) 321-4549 • [email protected]
PHYSICAL ADDRESS:
City Place | Suite 2000
2155 Louisiana Blvd NE
Albuquerque, NM 87110
TED C. BACA
Mary Ann R. Burmester
2727 San Pedro NE, Suite 114
Albuquerque, NM 87110
MAILING ADDRESS:
PO BOX 3070
Albuquerque, NM 87190
Mary Ann R. Burmester
Virginia R. Dugan
Tatiana D. Engelmann-Corp
Jon A. Feder
Robert P. Matteucci Jr.
Patrick L. McDaniel
Thomas C. Montoya
Denise E. Ready
Attorney at Law • Retired Chief District Court Judge
(505) 881-2566
Attorney
Attorney at Law
601 Calle del Pajarito N.W.
Albuquerque, New Mexico 87114
CITY PLACE SUITE 2000
2155 LOUISIANA NE
P.O. BOX 3070
87190
Albuquerque, New Mexico
TED C. BACA
Attorney at Law
Tatiana D. Engelmann
601 Calle del Pajarito N.W.
Albuquerque, New Mexico 87114
(505) 321-4549 • [email protected]
(505) 881-2566
2727 San Pedro NE | Suite 114
Albuquerque, NM 87110
attorney at law
CITY PLACE | SUITE 2000
2155 LOUISIANA NE
Albuquerque, NM 87110
P.O. BOX 3070 (87190-3070)
Retired Chief District Court Judge
We help families solve problems.
(505) 883-3070
Fax (505) 889-3111
e-mail: [email protected]
web: www.atkinsonkelsey.com
[email protected]
www.nmdivorcecustody.com
2727 San Pedro NE, Suite 114, Albuquerque, NM 87110
We’re ready to print YOUR
business package!
www.nmdivorcecustody.com
• stationery
W. W. Atkinson
(1910–1993)
601 Calle del Pajarito N.W., Albuquerque, New Mexico 87114
• business cards
Telephone (505) 883-3070 | Fax (505) 889-3111
www.AtkinsonKelsey.com
Stephen J.E. Sprague
(1941–2003)
• envelopes
Quality, full-color printing.
Local service with fast turnaround.
For more information, contact Marcia Ulibarri
at 505-797-6058 or [email protected]
Ask about your member discount.
Brought to you by the
Digital Print Center
DIGITAL PRINT CENTER
Bar Bulletin - January 28, 2015 - Volume 54, No. 4
35
Wednesday, Feb. 18
4-6 p.m.
State Bar Center
5121 Masthead NE (Journal Center), Albuquerque
For more information or to RSVP, contact:
Marcia Ulibarri, 505.797.6058 or [email protected]
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