February 4, 2015 • Volume 54, No. 5

Sunflowers by Barbara Garrett (see page 3)

Wednesday, Feb. 18 • 4-6 p.m.See back cover for details.

You’re invited!

Inside This Issue

February 4, 2015 • Volume 54, No. 5

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

Indian Law Section Mixer at Yanni’s Lemoni Lounge .......................... 5

Young Lawyers Division Board Vacancies ................................................. 6 Volunteers Needed ............................................ 6

State of the Judiciary Strong, But Needs More Financial Support, Chief Justice Tells Legislature, by D.D. Wolohan ..................................................... 7

New Mexico Court of Appeals Announces Judge Michael E. Vigil Elected Chief Judge ........ 8

2014 Prosecutors Section Awards ........................ 8

Disciplinary Counsel: Disciplinary Quarterly Report, Oct. 1–Dec. 31, 2015 ................................ 9

Clerk’s Certificates .................................................16

From the New Mexico Supreme Court

2014-NMSC-039, No. 33,376: State v. Gonzales ................................................20

2014-NMSC-040, No. 34,187: State v. Suskiewich ............................................22

2015-NMSC-001, No. 34,646: State ex rel. Cisneros v. Martinez ...................25

2 Bar Bulletin - February 4, 2015 - Volume 54, No. 5

Join 2015 State Bar President Martha Chicoski for this incredible trip and take the option to earn all of your CLE credits for the year.

Only $714 per person based on double occupancy.Contact Terri Nelson with Vacations To Go by Feb. 27 to reserve a room.

Flight reservations may be made on your own or through Terri.1-800-998-6925, ext. 8704 • [email protected]

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Send proposals to Christine Morganti, [email protected].

Melia Caribe Tropical, Punta Cana, Dominican RepublicAll-Inclusive Resort • May 16-23, 2015

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Bar Bulletin - February 4, 2015 - Volume 54, No. 5 3

Notices ................................................................................................................................................................4State of the Judiciary Strong, But Needs More Financial Support, Chief Justice Tells Legislature, by D.D. Wolohan .......................................................................................7New Mexico Court of Appeals Announces Judge Michael E. Vigil Elected Chief Judge .........82014 Prosecutors Section Awards ..............................................................................................................8Disciplinary Counsel: Disciplinary Quarterly Report, Oct. 1–Dec. 31, 2015 .................................9Legal Education Calendar .......................................................................................................................... 11Writs of Certiorari ......................................................................................................................................... 13Court of Appeals Opinions List ................................................................................................................. 15Clerk’s Certificates ......................................................................................................................................... 16Recent Rule-Making Activity ..................................................................................................................... 19Opinions

From the New Mexico Supreme Court2014-NMSC-039, No. 33,376: State v. Gonzales ........................................................................ 20

2014-NMSC-040, No. 34,187: State v. Suskiewich .................................................................... 22

2015-NMSC-001, No. 34,646: State ex rel. Cisneros v. Martinez .......................................... 25

Advertising ...................................................................................................................................................... 33

State Bar Workshops February

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

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

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

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

Meetings February

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

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

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

13 Animal Law Section BOD, Noon, State Bar Center

13 Prosecutors Section BOD, Noon, State Bar Center

Cover Artist: Barbara Garrett is an American Impressionist living in New Mexico who is captivated by the glint of sunshine on a bay stallion or celestial dawns over the Rio Grande. She strives to paint the light in the Land of Enchantment, including the powder blue skies and pink shaded earth, and brings to her paintings the heat of July and frost of November.

Table of Contents

Officers, Board of Bar CommissionersMary Martha Chicoski, PresidentJ. Brent Moore, President-ElectScotty A. Holloman, Vice PresidentDustin K. Hunter, Secretary-TreasurerErika E. Anderson, Immediate Past President

Board of EditorsJamshid Askar Bruce HerrNicole L. Banks Maureen S. MooreAlex Cotoia Andrew SefzikKristin J. Dalton Mark StandridgeCurtis Hayes Carolyn Wolf

State Bar StaffExecutive Director Joe ConteManaging Editor D.D. Wolohan 505-797-6039 • [email protected] Coordinator

Evann Kleinschmidt 505-797-6087 • [email protected] Designer Julie Schwartz

[email protected] Executive Marcia C. Ulibarri 505-797-6058 • [email protected] Print Center

Manager Brian SanchezAssistant Michael Rizzo

©2015, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

505-797-6000 • 800-876-6227 • Fax: 505-828-3765 E-mail: [email protected]. • www.nmbar.org

February 4, 2015, Vol. 54, No. 5





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NoticesProfessionalism TipCourt News

New Mexico Supreme Court Board of Legal SpecializationComments Solicited The following attorneys are applying for certification as a specialist in the areas of law identified. Application is made under the New Mexico Board of Legal Specialization, Rules 19-101 through 19-312 NMRA, which provide that the names of those seeking to qualify shall be released for publica-tion. Further, attorneys and others are encouraged to comment upon any of the applicant’s qualifications within 30 days after the publication of this notice. Ad-dress comments to New Mexico Board of Legal Specialization, PO Box 93070, Albuquerque, NM 87199.Estate Planning, Trusts and Probate Law

Steven P. FisherFamily Law

Kymberleigh G. Dougherty Linda Lillie Ellison

Natural Resources Law Jay F. Stein

Second Judicial District CourtMass 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 Adminis-trative 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 fol-lowing significant changes in procedure. In the Criminal division, effective Feb. 2, the vast majority of cases were reas-signed to different criminal judges. The reassignment of cases was completed by Jan. 23, with an effective date for reas-signment 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 Of-fice.

11th Judicial District CourtInvestiture 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 recep-tion will follow the ceremony. R.S.V.P. for the reception to Tanya by Feb. 11 at 505-320-5242.

Notice of Mass Reassignment to Judge Dalley Under the authority of Rule 23-109 NMRA, the Chief Judge of the 11th Judicial District Court directed a mass reassignment of all family and probate/mental health cases, with the exception of abuse and neglect cases, effective Feb. 2 from Division VIII, to Division I, Brad-ford J. Dalley, presiding. Pursuant to Rule 1-088.1 NMRA, parties who have not yet exercised a peremptory excusal in a case being reassigned in this mass reassignment will have 10 business days from Feb. 25 to excuse Judge Dalley.

13th Judicial District CourtNotice 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 succes-sor judge. For more information, contact Chief Clerk Kathy Gallegos at 505-287-8831, ext. 3110, or Leadworker Toinette Garcia, ext. 3126.

Volunteers Needed for Legal Clinics 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 coun-ties. For more information or to sign up, contact Staff Attorney Beth Collard at 505-865-2464 or [email protected].

Bernalillo County Metropolitan CourtInvestiture 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, Divi-sion 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 Met-ropolitan Court Jury Assembly Room. Judges who wish to participate in the ceremony, are asked to please bring their robes and report to the 1st Floor Viewing Room by 5 p.m.

Mass Reassignment 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 ap-pointed 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 MexicoAttorney 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.

With respect to opposing parties and their counsel:

I will be courteous and civil, both in oral and in written communications.


http://www.nmcourt.fed.us


state bar NewsAttorney Support Groups• 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.)

• March 2, 5:30 p.m. First United Methodist Church, 4th

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

For more information, contact Hilary Noskin, 505-449-7984 or Bill Stratvert, 505-242-6845.

Animal Law SectionFebruary 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 legisla-tion related to animal law issues. Beverages and cookies will be provided. R.S.V.P. to Evann Kleinschmidt, [email protected] by Feb. 19.

Board of Bar CommissionersCommissioner VacancySecond 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 at-tend 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). Mem-bers 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.

Indian Law SectionMixer at Yanni’s Lemoni Lounge The Indian Law Section is having a mixer at Yanni’s Lemoni Lounge, 5-7 p.m., on Feb. 12. The lounge is at 3109 Central Avenue NE in Albuquerque. All members and non-members interested in the Indian Law Section are encouraged to attend and network. The mixer also serves as a meet and greet for those participating in the ILS mentorship program. The mixer is free to ILS members and one guest and free for law students. Non-members are encour-aged to join or pay $15 to attend the mixer.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites members of the legal community to bring a lunch and attend “Substance Abuse and Other Mental Health Disorders: How JLAP Can Help” (1.0 G) presented by Claire McDaniel and Jill Yeagley. The program will be held from noon–1 p.m., Feb. 11, at the State Bar Center (registration fee for attorneys–$16, members of the Paralegal Division–$10, non-members–$15). Reg-istration begins at the door at 11:45 a.m. For more information, contact Cheryl Passalaqua, 505-247-0411, or Carolyn Winton, 888-4357. Telecast to three loca-tions: • Santa Fe: Montgomery & Andrews,

325 Paseo de Peralta, Santa Fe. Contact Donna Ormerod, 505-570-4593.

• Roswell: Atwood, Malone, Turner & Sabin, 400 N. Pennsylvania, Ste. 1100. Contact Tomma Shumate, 575-622-6221.

• Farmington: Titus & Murphy, 2021 E. 20th Street. Contact Shannon Krens, 505-326-6503.

Public Law SectionAccepting 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.

New Mexico Lawyers and Judges

Assistance Program

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

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

Judges888-502-1289

www.nmbar.org/JLAP/JLAP.html

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 BarEmail: [email protected]: 505-797-6019Mail: PO Box 92860 Albuquerque, NM 87199Online: www.nmbar.org

address ChaNges

MeetingBridge offers easy-to-use teleconferencing especially designed for law

firms. Set up calls and notify attendees in one symple step. Client codes can be entered for

easy tracking. Operator assistance is available on every call.

Contact Dave Martin 1-888-723-1200, ext. 627

[email protected] www.meetingbridge.com/371

Member BenefitF e a t u r e d


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mailto:@nmcourts.gov



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Solo and Small Firm SectionJudge Hartz Speaking at the State Bar Center Judge Harris Hartz, of the U.S. Court of Appeals for the 10th Circuit, will address “How Judges Think” at the Feb. 17 Solo and Small Firm Section meeting. The Board will meet at 11:30 a.m., followed by the noon presentation. Lunch will be included. R.S.V.P. to Evann Kleinschmidt at [email protected] by Feb. 16. All are invited. Senior U.S. Attorney trial counsel Tara Neda will be speaking at the March 17 lunch meeting about her special prosecu-tor work in Cameroon and Yemen and sharing images of those countries. She will discuss the conflicts between traditional tribal societies and efforts to teach a more Western criminal justice system.

Young Lawyers DivisionBoard Vacancies The YLD Board is seeking two regional directors for its board: Region 1, represent-ing San Juan and McKinley counties; and Region 3, representing the greater Roswell area/southeastern New Mexico. Among the duties include attending board meet-ings by phone or in person, and attending and organizing YLD events in your com-munity. Principal place of practice must be in the region applicants would represent. Residency in the region is not required. Send letters of interest and résumé to YLD Chair Ken Stalter, [email protected], by March 2. For more information, contact D.D. Wolohan, [email protected].

Four Corners Regional Conference YLD is participating in a regional lead-ership summit for YLD members in New Mexico, Arizona, Utah and Colorado April 9-13 in Aspen, Colo. The conference will in-clude speakers and panels who will discuss leadership skills. In addition, the conference will provide networking, a service project and skiing. For more information, contact Casey Kannenberg, [email protected], Colorado Bar Association YLD.

Volunteers Needed for Wills for Heroes in Albuquerque YLD is seeking volunteer attorneys for its Wills for Heroes event for APD officers at the Albuquerque Police Academy, 9 a.m. to noon, on Saturday, Feb. 21. Attorneys will provide free wills, healthcare and financial powers of attorney and advanced medical directives for first responders

Volunteers need no prior experience with wills. Contact Spencer Edelman at [email protected] or 505-848-1857.

Volunteers Needed at Veterans Legal Clinic The Young Lawyers Division and the New Mexico Veterans Affairs Health Care System are holding clinics for the Veterans Civil Justice Legal Initiative from 9 a.m.–noon, the second Tuesday of each month at the New Mexico Veterans Memorial, 1100 Louisiana Blvd. SE, Albuquerque. Breakfast and orientation for volunteers begin at 8:30 a.m. No special training or certification required. Volunteers can give advice and counsel in their preferred practice area(s). The next clinic is Feb. 10. To volunteer, contact Keya Koul, [email protected].

uNMWomen’s Law Caucus2015 Justice Mary Walters Award Dinner Join the Women’s Law Caucus to honor Heidi Nesbitt of the American Indian Law Center and Hon. Anne Kass for the efforts they have made for New Mexico. The Justice Mary Walters award dinner will be held at 6 p.m., Feb. 27, at the University of New Mexico School of Law. Tickets are $55 per person or $400 for a table of eight. To purchase tickets or for sponsorship information, visit http://lawschool.unm.edu/students/organiza-tions/wlc/. Make checks payable to the Women’s Law Caucus and send to 1117 Stanford Drive NE, Albuquerque, NM 87106. For more information, contact Donna Baslee, [email protected], or Elizabeth Reitzel, [email protected].

other barsAmerican Bar AssociationDispute Resolution Section Annual Conference The American Bar Association’s Dis-pute 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-tion, visit http://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=137037024.

Opportunity To Write for ABA’s ‘Litigation News’ The American Bar Association Litiga-tion 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 [email protected] 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 AssociationSupreme Court Review CLE The New Mexico chapter of the Federal Bar Association will host a luncheon, fol-lowed by a CLE program, featuring Erwin Chemerinsky, dean of the University of California, Irvine, School of Law, distin-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.

other NewsVolunteer Attorney ProgramRepresenting Victims of Violence CLE The Volunteer Attorney Program is hosting a CLE entitled “Representing Victims of Violence at Order of Protec-tion 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 [email protected].





http://lawschool.unm.edu/students/organizations/wlc/

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By D.D. Wolohan

Chief Justice Barbara J. Vigil spoke before a joint session of the New Mexico Legislature on Jan. 22, touting the judi-ciary’s accomplishments and seeking increased funding,

including for two more judgeships.

The Chief Justice received a very warm welcome from the leg-islators, who listened attentively. Recalling the words of George Washington, the Chief Justice said, “The administration of justice is the firmest pillar of government,” adding her own words, “be-cause it must always rest beyond political, socioeconomic, racial and regional lines. … We must remember that a strong judiciary strengthens every segment of our society.

“In fiscal year 2014, trial court judges presided over 399,000 new and reopened cases. … Our courts are called upon to address the aftermath of strained social and economic conditions such as crime, drug and alcohol abuse, child and domestic abuse, and broken business and family relationships. We continually work with all of our justice partners … to make the most of every dollar invested,” she said.

State of the Judiciary Strong, But Needs More Financial Support, Chief Justice Tells Legislature

“The work of the judiciary touches the lives of every New Mexican, yet we receive less than 3 percent of the general fund appropriation,” the Chief Justice said, leading up to her FY2016 budget request: An overall increase to the judiciary’s base budget of 5.7 percent to provide critical funding to magistrate courts ($3,096,700); jury and court interpreter funding ($1,666,900); and court appointed attorneys ($871,000). Funding for our problem-solving courts—DWI and drug courts ($775,000 increase); and two new judgeship positions, one in the Second District, the other in Las Cruces, assigned to Children’s Court cases.

The accomplishments Chief Justice Vigil cited for 2014 include improved court processes in Bernalillo County’s innovative criminal case management process, implementation of the Od-yssey case management system in all trial courts, the judiciary’s extensive mediation and alternative dispute resolution services and improvement in processes for water rights adjudication cases.

The rest of the Supreme Court attended the address, in addition to many other judges throughout the state. This year’s 60-day Legislative session concludes on March 21.

Chief Justice Barbara J. Vigil address the New Mexico Senate and House of Representatives in Santa Fe.


The Prosecutors Section met at the State Bar Center in December 2014 for its annual meeting and to celebrate its outstanding pros-ecutors. From left are Prosecutors Section Board member Devin Chapman, Board member Clara Moran (2015 section chair), Board Chair Ken Fladager, Outstanding DWI Prosecutor Timothy Callaway, Outstanding White Collar Crime Prosecutor Lynne-Anne Maxwell, Board member Phyllis Bowman and Outstanding Child Abuse Prosecutor Nicholas Marshall. Not pictured is Outstanding Domestic Violence Prosecutor Shellie Patscheck. Congratulations to all!

2014 Prosecutors Section Awards

From left, Section Board Member Devin Chapman, 2015 Section Chair Clara Moran, 2014 Section Chair Ken Fladager, awardee Timothy Callaway, awardee Lynne-Anne Maxwell, awardee Nicholas Marshall, and Section Board Member Phyllis Bowman

New Chief Judge Vigil (left) is sworn in by outgoing Chief Ju d g e R o d e r i c k Ke n n e d y

The New Mexico Court of Appeals Announces

Judge Michael E. Vigil, Elected Chief JudgeThe judges of the Court of Ap-peals unanimously elected Judge Michael E. Vigil as their new Chief Judge during their regular meeting on Jan. 20, 2015, in Santa Fe. He will serve a two-year term as Chief Judge. A New Mexico native, Judge Vigil graduated from Santa Fe High School and the College of Santa Fe before receiving his law degree from Georgetown University Law Cen-ter in Washington, D.C. Judge Vigil has served on the Court of Appeals since 2003.


RepoRt by DisciplinaRy counsel

DisciplinaRy QuaRteRly RepoRtFinal DecisionsFinal Decisions of the NM Supreme Court .................................3 Matter of Marcos Gonzalez, Esq. (Disciplinary No. 05-2014-

691) New Mexico Supreme Court entered an order indefinitely suspending Respondent from the practice of law for no less than six (6) months effective immediately for general neglect, failure to communicate, trust account violations, and general incompetence on matters. Respondent was ordered to make restitution to his client and any Client Protection Fund claims paid; pay costs to the Disciplinary Board; comply with require-ments for minimum continuing legal education (MCLE); take and pass the Multistate Professional Responsibility Examina-tion; have an audit performed and meet with a CPA regarding trust accounts; and retain a probation supervisor for at least three (3) years after the suspension is served.

Matter of Alain Jackson, Esq. (Disciplinary Nos. 11-2011-436 and 11-2013-681) New Mexico Supreme Court entered an order permanently disbarring Respondent from the practice of law for failing to comply with an Order of the Supreme Court. Respondent was ordered to turn all files over to the disciplinary counsel; provide a restitution payment schedule for his clients; and pay costs to the Disciplinary Board.

Matter of ________ (Sealed matter) New Mexico Supreme Court entered an order placing Respondent on disability inac-tive status effective immediately and staying any disciplinary proceedings until Respondent is found eligible for reinstate-ment. Respondent was further ordered to turn all files over to disciplinary counsel and to give access to any IOLTA accounts.

Summary SuspensionsTotal number of attorneys summarily suspended ......................0

Administrative SuspensionsTotal number of attorneys administratively suspended .............0

Disability SuspensionsTotal number of attorneys placed on disability suspension ......0Charges Filed Charges were filed against an attorney for allegations of fail-

ing to provide competent representation; engaging in the representation involving concurrent conflict of interest; and engaging in conduct that is prejudicial to the administration of justice.

Charges were filed against an attorney for allegations of making false statement of material fact or law to a tribunal or failing to correct a false statement of material fact or law previously made to the tribunal by the lawyer; by offering evidence that the lawyer knows to be false; by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and engaging in conduct prejudicial to the administration of justice.

Charges were filed against an attorney for allegations of fail-ing to provide competent representation to a client; failing to represent the client diligently; failing to expedite litigation; and by engaging in conduct prejudicial to the administration of justice.

Charges were filed against an attorney for allegations of fail-ing to provide competent representation to a client; failing to represent the client diligently; failing to communicate with the client and making false statements to the client about the status of the case; failing to expedite litigation; by knowingly making a false statement of material fact in connection with a disciplinary matter; and engaging in conduct that is prejudicial to the administration of justice.

Charges were filed against an attorney for allegations of fail-ing to provide competent representation; engaging in the representation involving concurrent conflict of interest; and engaging in conduct that is prejudicial to the administration of justice.

Charges were filed against an attorney for allegations of fail-ing to provide competent representation to a client; failing to represent the client diligently; failing to expedite litigation; and by engaging in conduct prejudicial to the administration of justice.

Charges were filed against an attorney for allegations of failing to provide competent representation to a client; by unlawfully obstructing another party’s access to evidence; by failing to obey the rules of a tribunal; by engaging in conduct disrup-tive to the tribunal; by using methods to obtain evidence that violates the legal rights of a third person; and by engaging in conduct prejudicial to the administration of justice.

Charges were filed against an attorney for allegations of failing to provide competent representation to a client; by unlawfully obstructing another party’s access to evidence; failing to obey the rules of a tribunal; by engaging in conduct disruptive to the tribunal; by using methods to obtain evidence that violates the legal rights of a third person; by having managerial authority over a lawyer and failing to make reasonable efforts to insure that the subordinate lawyer conformed to the Rules of Profes-sional Conduct; by having direct supervisory authority over another lawyer and failing to make reasonable efforts to ensure that the other lawyer conformed to the Rules of Professional Conduct; by having knowledge of specific misconduct and ratifying that conduct and having known of the conduct at a time when its consequences could have been avoided or mitigated but failed to take remedial action; and by engaging in conduct prejudicial to the administration of justice.

Petitions for Administrative Suspension FiledPetitions for administrative suspension filed ..............................2 Matter Madeline E. Melka, Esq. (Disciplinary No. 11-2014-

711) The office of Disciplinary Counsel filed a petition for administrative suspension against Respondent for failing to respond to repeated requests for information.

Matter of David Proper, Esq. (Disciplinary No. 12-2014-712) The office of Disciplinary Counsel filed a petition for admin-istrative suspension against Respondent for failing to respond to repeated requests for information.

Petitions for Reciprocal Discipline FiledPetitions for reciprocal discipline filed .........................................0

Reporting Period: October 1–December 31, 2014


Complaints ReceivedAllegations No. of ComplaintsTrust Account Violations ...................................................... 2Conflict of Interest ................................................................. 0Neglect and/or Incompetence ............................................ 82Misrepresentation or Fraud ................................................ 19Relationship with Client or Court ..................................... 17Fees ........................................................................................... 9Improper Communications .................................................. 2Criminal Activity ................................................................... 0Personal Behavior ................................................................ 18Other ........................................................................................ 6Total number of complaints received .............................. 155

Petitions for Reinstatement FiledPetitions for reinstatement filed ...................................................0

Formal ReprimandsTotal number of attorneys formally reprimanded ......................0

Informal AdmonitionsTotal number of attorneys admonished ......................................4 An attorney was informally admonished for engaging in the

representation involving concurrent conflict of interest and for representing a party against former clients in the same action without written informed consent in violation of Rules 16-107, and 16-109 of the Rules of Professional Conduct.

An attorney was informally admonished for failing to obey the rules of a tribunal; seeking to influence a juror by means prohibited by law; violating the special responsibilities of a prosecutor; and engaging in conduct prejudicial to the ad-ministration of justice in violation of Rule 16-304, 16-350(A), 16-308, and 16-804(D) of the Rules of Professional Conduct.

An attorney was informally admonished for failing to pro-vide competent representation; failing to obey the rules of a tribunal; seeking to influence a juror or other official by means prohibited by law; violating the special responsibilities of a prosecutor; and engaging in conduct prejudicial to the administration of justice in violation of Rules 16-101, 16-304 (C), 16-305(A); 16-308; and 16-804(D) of the Rules of Profes-sional Conduct.

An attorney was informally admonished following a period of probation for failing to keep the client reasonably informed about the status of a matter in violation of Rules 16-104(A)(3) of the Rules of Professional Conduct.

Letters of CautionTotal number of attorneys cautioned ........................................ 11 Attorneys were cautioned for the following conduct: (1) general

incompetence (four letters of caution issued); (2) improper withdrawal; (3) general misrepresentation to a client (two letters of caution issued); (4) harassment; (5) bank overdraft; (6) failure to communicate; and (7) conflict of interest.


Legal Education www.nmbar.org

February

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


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

10 2014 Fall Elder Law Institute The Complexities of the Special Needs Trust: Drafting, Funding and Implementation


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

10 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

10–11 Ethics Update, Parts 1–2 2.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

12 Estate & Trust Planning for Educational Expenses


13 Management Agreements in Real Estate


16 2015 Nonprofit/Exempt Organization Update


17 25th Annual Real Property Institute (2014)


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

17 ‘Technethics’: Ethical Issues in Social Media and Other New Technologies (2014)


17 Supreme Court Case Update and New Rules Process (2014)


17–18 Drafting C and S Corp Stockholder Agreements, Parts 1–2


19 Duress & Undue Influence in Estate & Trust Planning


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

20 Representing Victims of Violence at Order of Protection Hearings

2.0 G Albuquerque Volunteer Attorney Program 502-797-6040 [email protected]

24 Drafting Independent Contractor Agreements
























Legal Education www.nmbar.org

March

3 Estate Planning for Farms and Ranches


5 Spotting & Preventing Fraud in Real Estate Transactions


10 Oil and Gas: From the Basics to an In-Depth Study (2014)


10 2014 Employment and Labor Law Institute


10 New Mexico Constitution—Current Issues (2014)


10 Don’t Call Saul: ‘Breaking Bad’ Ethics (2014 Annual Meeting)


10 Ethics and Professionalism: Advice from the Bench and Bar (2014)


10 Reviewing and Drafting IT Agreements


12 Ethical Issues When Representing the Elderly

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

17-18 Fundamentals of Securities Law, Parts 1–2


23 Ethics for Transactional Lawyers 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

24 Internet Investigative/Legal Research on a Budget and Legal Tech Tips (2014)


24 Medical Malpractice Review Before the New Mexico Medical Review Commission (2014)


24 Nonprofit Corporations Compliance (2014)


24 Mock Meeting of the Ethics Advisory Committee (2014)


24-25 Sub-leasing & Assignments, Parts 1–2


30 Fire in the Hole: What’s Exploding in New Mexico Mining Law (2014)


30 2014 Intellectual Property Law Institute


30 How to Become a Rock Star Lawyer, the Ethical Way (2014)


30 VAWA 2013 and Tribal Jurisdiction Over Crimes of Domestic Violence (2014)


31 Exempt v. Non-exempt: Overtime & Employer Liability in the Workplace

























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

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

Petitions for Writ of Certiorari Filed and Pending:

Date Petition FiledNo. 35,095 State v. Romero COA 34,162 01/23/15No. 35,094 State v. Venegas-Diaz COA 33,106 01/23/15No. 35,093 State v. Lujan COA 33,995 01/23/15No. 35,092 State v. Sandoval COA 33,952 01/22/15No. 35,089 State v. Demory COA 33,659 01/21/15No. 35,090 State v. Upchurch COA 33,240 01/20/15No. 35,084 Branch v. State 12-501 01/16/15No. 35,088 Vine v. State 12-501 01/15/15No. 35,083 Partida v.

Motor Vehicle Division COA 33,698 01/15/15No. 35,082 State v. Williams COA 33,869 01/15/15No. 35,086 Moreno v. Hatch 12-501 01/13/15No. 35,080 State v. Barela COA 34,034 01/13/15No. 35,085 Strand v. Janecka 12-501 01/12/15No. 35,079 State v. McKnight COA 33,872 01/12/15No. 35,076 Begay v. Consumer Direct COA 33,288 01/09/15No. 35,073 State v. Butler COA 33,696 01/09/15No. 35,070 State v. Acosta 12-501 01/08/15No. 35,069 Arencon v.

City of Albuquerque COA 33,196 01/08/15No. 35,077 State v. Montoya COA 33,975 01/06/15No. 35,066 State v. Garcia COA 33,930 01/05/15No. 34,995 State v. Deangelo M. COA 31,413 01/05/15No. 35,065 State v. Schaublin COA 32,929 01/02/15No. 35,064 State v. Martin COA 34,045 01/02/15No. 35,063 State v. Carroll COA 32,909 12/30/14No. 35,060 Medina v. State 12-501 12/30/14No. 35,050 State v.

Hernandez COA 32,110/32,109 12/22/14 Response ordered; due 2/2/15No. 35,035 State v. Stephenson COA 31,273 12/18/14No. 35,046 Ramirez v. Ortiz 12-501 12/15/14No. 35,040 Montoya v. Wrigley 12-501 12/15/14No. 35,039 Ramirez v. Hatch 12-501 12/15/14No. 35,037 Graham v. Hatch 12-501 12/15/14No. 35,029 State v. Abeyta COA 33,485 12/12/14No. 35,016 State v. Baca COA 33,626 12/03/14No. 35,011 Segura v. Franco 12-501 12/03/14No. 35,010 Chavez v. State 12-501 12/03/14No. 35,005 State v. Archuleta COA 32,794 11/26/14No. 35,068 Jessen v. Franco 12-501 11/25/14No. 34,974 Moses v. Skandera COA 33,002 11/12/14 Responses filed 12/1/14No. 34,949 State v. Chacon COA 33,748 10/27/14 Response filed 10/31/14No. 34,937 Pittman v.

N.M. Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,928 State v. Luevano COA 31,741 10/14/14 Response ordered; due 1/26/15No. 34,881 Paz v. Horton 12-501 10/08/14

No. 34,913 Finnell v. Horton 12-501 09/22/14No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,885 Savage v. State 12-501 09/08/14No. 34,878 O’Neill v. Bravo 12-501 08/26/14No. 34,777 State v. Dorais COA 32,235 07/02/14 Response filed 7/31/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14 Response ordered; due 8/22/14No. 34,765 Helfferich v. Frawner 12-501 06/24/14 Response ordered; due 2/2/15No. 34,793 Isbert v. Nance 12-501 06/23/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,776 Serna v. Franco 12-501 06/13/14No. 34,748 Smith v. State 12-501 06/06/14No. 34,731 Helfferich v. Frawner 12-501 05/29/14 Response ordered; due 2/2/15No. 34,739 Holguin v. Franco 12-501 05/21/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,691 Wetson v. Nance 12-501 05/07/14 Response ordered; filed 7/14/14No. 34,589 Seager v. State 12-501 04/23/14No. 34,563 Benavidez v. State 12-501 02/25/14 Response ordered; filed 5/28/14No. 34,303 Gutierrez v. State 12-501 07/30/13No. 34,067 Gutierrez v. Williams 12-501 03/14/13No. 33,868 Burdex v. Bravo 12-501 11/28/12 Response ordered; filed 1/22/13No. 33,819 Chavez v. State 12-501 10/29/12No. 33,867 Roche v. Janecka 12-501 09/28/12No. 33,539 Contreras v. State 12-501 07/12/12 Response ordered; due 10/24/12No. 33,630 Utley v. State 12-501 06/07/12

Certiorari Granted but not yet Submitted to the Court:

(Parties preparing briefs) Date Writ IssuedNo. 33,725 State v. Pasillas COA 31,513 09/14/12No. 33,837 State v. Trujillo COA 30,563 11/02/12No. 33,877 State v. Alvarez COA 31,987 12/06/12No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 33,994 Gonzales v. Williams COA 32,274 08/30/13No. 33,863 Murillo v. State 12-501 08/30/13No. 33,810 Gonzales v. Marcantel 12-501 08/30/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,400 State v. Armijo COA 32,139 12/20/13No. 34,443 Aragon v. State 12-501 02/14/14No. 34,549 State v. Nichols COA 30,783 03/28/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 34,637 State v. Serros COA 31,975 05/01/14No. 34,694 State v. Salazar COA 33,232 06/06/14No. 34,669 Hart v. Otero County Prison 12-501 06/06/14

Effective January 23, 2015


Writs of CertiorariNo. 34,650 Scott v. Morales COA 32,475 06/06/14No. 34,630 State v. Ochoa COA 31,243 06/06/14No. 34,789 Tran v. Bennett COA 32,677 08/01/14No. 34,769 State v. Baca COA 32,553 08/01/14No. 34,786 State v. Baca COA 32,523 08/01/14No. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14No. 34,805 King v.

Behavioral Home Care COA 31,682 08/15/14No. 34,798 State v. Maestas COA 31,666 08/15/14No. 34,843 State v. Lovato COA 32,361 08/29/14No. 34,834 SF Pacific Trust v.

City of Albuquerque COA 30,930 08/29/14No. 34,772 City of Eunice v. N.M. Taxation

and Revenue Dept. COA 32,955 08/29/14No. 34,726 Deutsche Bank v.

Johnston COA 31,503 08/29/14No. 34,668 State v. Vigil COA 32,166 09/26/14No. 34,855 Rayos v. State COA 32,911 10/10/14No. 34,728 Martinez v. Bravo 12-501 10/10/14No. 34,812 Ruiz v. Stewart 12-501 10/10/14No. 34,886 State v. Sabeerin COA 31,412/31,895 10/24/14No. 34,866 State v. Yazzie COA 32,476 10/24/14No. 34,854 State v. Alex S. COA 32,836 10/24/14No. 34,830 State v. Mier COA 33,493 10/24/14No. 34,826 State v. Trammel COA 31,097 10/24/14No. 34,997 T.H. McElvain Oil & Gas v.

Benson COA 32,666 12/19/14No. 34,993 T.H. McElvain Oil & Gas v.

Benson COA 32,666 12/19/14No. 34,978 Atherton v. Gopin COA 32,028 12/19/14No. 34,946 State v. Kuykendall COA 32,612 12/19/14No. 34,945 State v. Kuykendall COA 32,612 12/19/14No. 34,940 State v. Flores COA 32,709 12/19/14No. 34,929 Freeman v. Love COA 32,542 12/19/14

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,548 State v. Marquez COA 30,565 04/15/13No. 33,808 State v. Nanco COA 30,788 08/14/13No. 33,862 State v. Gerardo P. COA 31,250 08/14/13No. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 09/11/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13

No. 34,013 Foy v. Austin Capital COA 31,421 11/14/13No. 34,085 Badilla v. Walmart COA 31,162 12/04/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,194/34,204

King v. Faber COA 34,116/31,446 02/24/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14No. 34,120 State v. Baca COA 31,442 03/26/14No. 34,122 State v. Steven B. consol. w/

State v. Begaye COA 31,265/32,136 08/11/14No. 34,286 Yedidag v.

Roswell Clinic Corp. COA 31,653 08/11/14No. 34,499 Perez v. N.M. Workforce

Solutions Dept. COA 32,321/32,330 08/13/14No. 34,546 NM Dept. Workforce Solutions v.

Garduno COA 32,026 08/13/14No. 34,271 State v. Silvas COA 30,917 08/25/14No. 34,435 State v. Strauch COA 32,425 08/27/14No. 34,447 Loya v. Gutierrez COA 32,405 08/27/14No. 34,295 Dominguez v. State 12-501 09/24/14No. 34,501 Snow v. Warren Power COA 32,335 10/01/14No. 34,607 Lucero v.

Northland Insurance COA 32,426 10/29/14No. 34,554 Miller v.

Bank of America COA 31,463 11/10/14No. 34,516 State v. Sanchez COA 32,994 12/17/14No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,476 State v. Pfauntsch COA 31,674 12/17/14No. 34,764 State v. Slade COA 32,681 01/12/15No. 34,548 State v. Davis COA 28,219 01/14/15No. 34,526 State v. Paananen COA 31,982 01/14/15

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 35,062 State v. Eduardo L. COA 33,620 01/23/15No. 35,061 State v. Martinez COA 33,809 01/23/15No. 35,059 State v. Larranaga COA 33,629 01/23/15No. 35,058 State v. Truong COA 33,873 01/23/15No. 35,057 State v. Williams COA 33,863 01/23/15No. 35,056 State v. Elebario COA 33,874 01/23/15No. 35,054 State v. Saienni COA 33,013 01/23/15No. 35,038 State v. Garnenez COA 34,120 01/23/15No. 34,796 Miller v. Ortiz 12-501 01/23/15


OpinionsAs 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 23, 2014

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

Published Opinions

No. 32171 2nd Jud Dist Bernalillo CV-02-9124, PROGRESSIVE v N VIGIL 01/21/2015 (affirm in part, reverse in part and remand)No. 32708 9th Jud Dist Curry CR-10-610, STATE v G MURILLO (affirm) 01/21/2015

Unublished OpinionsNo. 33976 2nd Jud Dist Bernalillo LR-12-48, STATE v B DIMAS (affirm) 01/21/2015No. 34041 2nd Jud Dist Bernalillo CV-10-5909, BANK OF NY v N SINGH (affirm) 01/21/2015No. 34066 5th Jud Dist Lea DM-12-86, J SHANER v C SHANER (affirm) 01/21/2015

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

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

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


Clerk’s Certificate of Withdrawal

Effective January 1, 2015:Barbara Ann Brill932 Los Lovatos RoadSanta Fe, NM 87501

Effective December 31, 2014:Ronald Merritt HigginbothamPO Box 1103Roswell, NM 88202-1103

Effective January 13, 2015:Eudora Shaw249 Gillingham DriveNewbury, NH 03255

Effective December 31, 2014:Scott ZeschPO Box 67Art, TX 76820-0067

In Memoriam

As of September 7, 2014:Howell Cobb IIIPO Box 4915Beaumont, TX 77704-4915

Clerk’s Certificate of Reinstatement to

Active Status

As of January 12, 2015:William Joseph Moon2800 Plaza AmarillaSanta Fe, NM 87507505-629-9662

As of January 16, 2015:Marilyn S. Hebert42 Wildflower WaySanta Fe, NM 87506505-986-1944

Clerk’s Certificate of Admission

On January 9, 2015:Herbert M. StrassbergLaw Offices of the Public DefenderPO Box 1317Hobbs, NM 88241-1317575-263-2740575-393-5803 (fax)

Clerk’s Certificate of Change to

Inactive Status

Effective December 30, 2014:Paul AdamsThe Adams Law Firm, PC3800 Osuna Road NE, Suite 2Albuquerque, NM 87109

Terri S. Beach8508 Palomar Avenue NEAlbuquerque, NM 87109

Brenna Joy MillerU.S. Navy24505 Peachland AvenueNewhall, CA 91321

Effective January 6, 2015:Jennifer Rebecca AlbrightArizona Supreme Court2048 E. La Jolla DriveTempe, AZ 85282

Nan E. Burke1404 Lafayette Drive NEAlbuquerque, NM 87106 Effective December 29, 2014:James B. Alley Jr.PO Box 1932Santa Fe, NM 87504-1932

Effective January 1, 2015:Steven Kyle ArmstrongU.S. Department of Justice700 E. San Antonio, Suite 200El Paso, TX 79901

Elmer Joseph Lincoln Jr.7625 N. Viale Di Buona FortunaTucson, AZ 85718

Jan Schoenhaus2430 Northwest Circle NWAlbuquerque, NM 87104

Effective January 1, 2015:Rebecca Loubriel AvitiaNational Hispanic Cultural Center1701 Fourth Street SWAlbuquerque, NM 87102

Diana J. HarrisPO Box 22101Santa Fe, NM 87502-2101

Paul E. Houston7421 Gila Road NEAlbuquerque, NM 87109

Bruce Robert Kohl201 Camino del NorteSanta Fe, NM 87501

Scott N. OliverMyers, Oliver & Price, PC1401 Central Avenue NWAlbuquerque, NM 87104

Katherine R. Sutton9913 Denali Road NEAlbuquerque, NM 87111

Byron L. TreasterPO Box 659Tesuque, NM 87574-0659

Effective December 20, 2014:Joe Cruz Castellano Jr.PO Box 8243Albuquerque, NM 87504

Effective December 22, 2014:Stephanie A. Erickson914 N. Thomas StreetCarlsbad, NM 88220

Effective December 23, 2014:Orlando J. Gonzalez1632 Columbia Drive SEAlbuquerque, NM 87106

Effective January 9, 2015:Regina M. Hurley5400 Montgomery Blvd. NE, Suite 609-BAlbuquerque, NM 87109

Effective December 31, 2014:Walter Merrill LowneyLowney Law Firm10320 Cottonwood Park NW, Suite EAlbuquerque, NM 87114

Polly Ann TauschFitch & Tausch, LLCPO Box 1647911 BelmontSocorro, NM 87801-1647

Rebecca Elizabeth WardlawRebecca E. Wardlaw, PCPO Box 8382Albuquerque, NM 87198-8382

Effective December 2, 2014:Scott L. MullinsOregon Division of Finance and Corporate Securities350 Winter Street NESalem, OR 97301

Effective December 26, 2014:Melinda Gubec Politeo108 E. Sunrise DriveSanta Fe, NM 87506

Effective December 24, 2014:David Carlson SmithDavid Carlson Smith, PC215 Lincoln Avenue, Suite 201Albuquerque, NM 87501

Effective December 24, 2014:Nancy Qi SuResurgence Legal Group, PC15534 Caulfield AvenueNorwalk, CA 90650


Clerk’s Certificates

Dated Jan. 26, 2015

Clerk’s Certificate of Address and/or

Telephone Changes

Jennifer M. AndersonColorado Attorney General’s Office1300 Broadway, 10th FloorDenver, CO [email protected]

Naomi Bebo15 Abanico RoadSanta Fe, NM [email protected]

Shelby Lynne CarlsonAdkerson, Hauder & Bezney, PC1700 Pacific Avenue, Suite 4450Dallas, TX [email protected]

Cristina ChavezMary Ann Romero & Associates301 Edith Blvd. NE, Suite 100Albuquerque, NM 87102505-796-2024505-247-1502 (fax)[email protected]

Kirk C. ChavezThe Sawyers Law Group1601 N. Turner Street, Suite 400Hobbs, NM 88240575-393-1300575-393-1869 (fax)[email protected]

Robert EricksonPhillips Haffey, PCPO Box 8569283 W. Front Street, Suite 301 (59802)Missoula, MT 59807-8569406-721-7880406-721-0058 (fax)[email protected]

Stanley Allen Giles Jr.Giles & Associates1804 Lomas Blvd. NWAlbuquerque, NM 87104505-247-1234 (phone and fax)[email protected]

Michael E. HendricksBeacon Immigration820 Second Street NWAlbuquerque, NM [email protected]

Charles Bernard KraftLaw Offices of the Public Defender505 Marquette Avenue NW, Suite 120Albuquerque, NM 87102505-835-2238505-796-4661 (fax)[email protected]

Stephanie M. KruegerThompson Coe Cousins & Irons, LLPOne Riverway, Suite 1400Houston, TX 77056713-403-8207713-403-8299 (fax)[email protected]

Amy LandauPO Box 10440Albuquerque, NM [email protected]

Ann-Renee MascareñasJay Goodman & Associates2019 Galisteo Street, Suite C-3Santa Fe, NM [email protected]

Madeline E. Melka200 Carolino Canyon RoadTijeras, NM [email protected]

Peter B. MillerCrowell & Moring LLP1001 Pennsylvania Avenue NWWashington, DC 20004202-624-2506202-628-5116 (fax)[email protected]

Makyla M. MoodyGreenberg & Sada, PC770 W. Hampden Avenue, Suite 227Englewood, CO 80110303-781-3529303-783-2222 (fax)[email protected]

Sarita NairOffice of the State Auditor2540 Camino Edward Ortiz, Suite ASanta Fe, NM 87507505-476-3800505-827-3512 (fax)[email protected]

Elise F. OviedoNational Labor Relations Board600 Las Vegas Blvd. South, Suite 400Las Vegas, NV 89101702-388-6416702-388-6248 (fax)[email protected]

Sheri A. Raphaelson512 S. Riverside DriveEspanola, NM [email protected]

Michael C. Ross111 Isleta Blvd. SW, Suite AAlbuquerque, NM 87105505-242-4669505-212-0411 (fax)[email protected]

Christopher J. Schultz12308 Lexington Avenue NEAlbuquerque, NM [email protected]

Jamye Boone WardPO Box 920838El Paso, TX [email protected]

Lauren L. ZabickiLaw Firm of David C. Chavez, LLCPO Box 1615Los Lunas, NM [email protected]

Frank A. Baca Jr.7601 Jefferson Street NE, Suite 380Albuquerque, NM [email protected]

Mary Lynn BogleHinkle Shanor LLPPO Box 1720119 S. Roselawn Ave., Suite 306 (88210)Artesia, NM 88211-1720575-622-6510575-746-6316 (fax)[email protected]

Thomas R. FigartPO Box 683845 N. Motel Blvd. (88007)Las Cruces, NM [email protected]

Nicholas Martin McDonnell7012 Welton Drive NEAlbuquerque, NM [email protected]

Lauren A. ShapiroLauren Shapiro Law, PLLC2721 Kinney Oaks CourtAustin, TX [email protected]

E. Ann StrahanStrahan & Smalls138 W. Mountain AvenueLas Cruces, NM 88005575-523-9052575-523-9055 (fax)[email protected]

Jeffrey B. Schamis525 Tony StreetSanta Fe, NM [email protected]

Susan J. CarterWeinstein & Riley, PS20 First Plaza NW, Suite 303Albuquerque, NM 87102206-438-1039505-214-5116 (fax)[email protected]

Laurie A. GallegosThe Trinity Law Firm557 Oppenheimer Drive, Suite 101Los Alamos, NM 87544505-662-8955888-894-2221 (fax)[email protected]





























Clerk’s Certificates


Effective January 16, 2015:Hon. Stephen Bridgforth2063 CortabellaLas Cruces, NM 88005


Effective January 6, 2015:Gail K. Jensen7315 Willow AvenueTakoma Park, MD 20912

Clerk’s Certificate of Change to Inactive

Status

Effective January 26, 2015:Heather S. JaramilloThe Jaramillo Firm, LLC1110 Second Street NWAlbuquerque, NM [email protected]

Effective January 11, 2015:David Steven Dales216 Dolphin Estates CourtDestin, FL 32541

Effective January 1, 2015:George Gary Duncan506 Galisteo StreetSanta Fe, NM 87501

Sharon Salazar HickeyLos Alamos National LaboratoryPO Box 1663, MS A147Los Alamos, NM 87545

Thomas J. Hynes Jr.5508 Lola LaneFarmington, NM 87402

Jonathan H. Reischl234 Jackson StreetTrenton, NJ 08611

Brett A. Schneider205 Park Central East, Suite 417Springfield, MO 65806

Effective January 9, 2015:Nancy L. FlemingPO Box 1943Las Cruces, NM 88004-1943

Effective December 27, 2014:Torrence B. Harrison8116 Rancho Lindo Court NWAlbuquerque, NM 87120

Effective January 8, 2015:Tamiel S. Holloway4130 Degnan Blvd.Los Angeles, CA 90008

Effective January 6, 2015:Jessica Ann Janet19223 Hollow LaneRedding, CA 96003

Effective January 12, 2015:Kimberly A. MiddlebrooksPO Box 104364811 Hardware Drive NE, Bldg. 05 (87109)Albuquerque, NM 87184-0436

Effective January 12, 2015:Rebekah Grace NewmanPO Box 3509100 West Colorado Ave., Suite 215-216Telluride, Co 81435

Effective January 6, 2015:Mia A. RubinWest Law Firm, PLLC40 First Plaza NW, Suite 735Albuquerque, NM 87102

Effective January 16, 2015:Flynn Evelyn SylvestAspiranet2838 Eastman Avenue, Suite 100Ventura, CA 93003

In Memoriam

As of January 9, 2015:Hon. Gerard W. Thomson131 M Street NEWashington, DC 20002



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

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

Effective February 4, 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 Commencement of action. 08/31/1410-315 Custody hearing. 07/01/1410-317 Notice of change in placement. 08/31/1410-323 Dismissal of a respondent or child;

party dismissal sheet. 08/31/1410-343 Adjudicatory hearing; time limits;

continuances. 07/01/1410-501A Abuse and neglect party information sheet. 08/31/1410-565 Advance notice of change of placement. 08/31/1410-566 Emergency notice of change of placement. 08/31/1410-567 Abuse and neglect party dismissal sheet. 08/31/14

Rules of Appellate Procedure12-206A Expedited appeals from Children’s Court

custody hearings. 07/01/1412-303 Appointment of counsel. 07/01/14

Rules Governing Admission to the Bar15-102 Admission requirements. 06/01/1515-103 Qualifications. 06/01/1515-105 Application fees. 06/01/1515-107 Admission by motion. 06/01/15

Supreme Court General Rules23-109 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.

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

From the New Mexico Supreme Court and Court of Appeals


Opinion Number: 2014-NMSC-039

STATE OF NEW MEXICO,Plaintiff-Petitioner,

v.SARA GONZALES,

Defendant-RespondentNo. 33,376 (filed April 15, 2013)

ORIGINAL PROCEEDING ON CERTIORARINEIL C. CANDELARIA, District Judge

GARY K. KINGAttorney General

MARGARET E. MCLEANAssistant Attorney General

Santa Fe, New Mexico for Petitioner

JOHN A. MCCALLLAW WORKS, LLC

Albuquerque, New Mexicofor Respondent

Opinion

Barbara J. Vigil, Justice{1} We granted certiorari to review the Court of Appeals’ opinion in this case. Af-ter reviewing the record, the parties’ briefs, and hearing oral argument, we issued an order quashing the writ of certiorari. However, we find the procedural history of this case and a related case troubling and are compelled to write a decision to explain why we quashed certiorari and to caution appellate practitioners that adverse consequences can result when the Rules of Appellate Procedure are not followed.{2} In this case and a related case, the Second Judicial District Attorney’s Office (“District Attorney”) violated Rule 12-208 NMRA, which addresses the requirements for docketing an appeal. The violation ul-timately wasted the time of the appellate courts and the parties and, perhaps most troubling, precipitated the issuance of contradictory opinions by the Court of Ap-peals on related appeals not only involving the identical issue, but involving the same ruling by the same judge regarding the legal sufficiency of the same search warrant.{3} We require that all appellate practitio-ners comply with the Rules of Appellate Procedure so that unnecessary procedural conflicts do not arise that prevent the effec-tive and efficient administration of justice. In order to fully grasp the impact of this

rule violation, a brief background of this case and the related case is necessary.I. FACTUAL AND PROCEDURAL

BACKGROUND{4} On March 5, 2009, the State filed in-dictments in the Second Judicial District Court against Raymundo Maso (“Maso”) and Sara Gonzales (“Gonzales”), charg-ing each with drug related offenses after a search warrant authorizing a search of their shared apartment revealed incrimi-nating evidence against them. The State filed a Statement of Joinder and the cases were joined. Maso filed a motion to sup-press the evidence, which Gonzales joined. On August 14, 2009, the district court is-sued an order granting the suppression of evidence motion, concluding the search warrant was invalid because it “did not include sufficient specific facts to establish probable cause for the issuance of a search warrant” under either the United States or New Mexico Constitution.{5} On August 21, 2009, the State then separately appealed this suppression order to the New Mexico Court of Appeals for each defendant. The Court of Appeals decided the appeal involving Maso on its summary calendar, and in a memo-randum opinion by Judge Wechsler, the Court reversed the suppression order and remanded to the district court for further proceedings. See State v. Maso, No. 29,842, slip op. (N.M. Ct. App. April 14, 2010) (non-precedential), cert. denied, S. Ct. No.

32,398 (August 25, 2010). Maso petitioned for a writ of certiorari, which this Court denied on August 25, 2010. Conversely, the State’s appeal in this case was assigned to the Court of Appeals’ general calendar, and in a memorandum opinion by Judge Kennedy, the Court affirmed the same suppression order, with Judge Garcia concurring and Judge Wechsler dissent-ing. See State v. Gonzales, No. 29,843, slip op. (N.M. Ct. App. December 9, 2011) (non-precedential), cert. granted, S. Ct. No. 33,376 (February 16, 2012). The State successfully petitioned this Court for a writ of certiorari in this case, primarily on the ground that the Court of Appeals had issued diametrically opposite rulings upholding the search warrant in Maso and holding it unlawful in this case. {6} We ultimately agreed with the reason-ing and conclusion of the Court of Appeals in this case and, therefore, quashed the writ of certiorari. Although the quash-ing of our writ in this case may appear to leave a decision in place that would allow Maso to be prosecuted with evidence that was suppressed as to Gonzales – despite no appreciable difference in their situ-ations – we hasten to add that after the Court of Appeals issued Gonzales, the State dismissed the charges against both Gonzales and Maso, even though it could have proceeded in its case against Maso. As such, any continuing concern about the inconsistent application of the law for these two co-defendants has been allevi-ated. Nonetheless, we are concerned by the fact that the Attorney General was appar-ently unaware that the District Attorney had filed a nolle prosequi in this case, as it did not disclose to this Court–either in its petition for writ of certiorari, its briefs or in its oral argument–that a nolle prosequi had been filed in this case. Although this nolle prosequi does not strip this Court of its jurisdiction, it is nonetheless essential information regarding the procedural history of this case since it stripped the district court of its jurisdiction in this case. However, while it is important that this Court be made aware of essential pieces of information such as this, the Discus-sion in this Decision focuses on the more serious rule violation the District Attorney committed in these cases and explains the impact of the violation.II. DISCUSSION{7} The inconsistent Court of Appeals memorandum opinions at issue stemmed

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http://www.nmcompcomm.us/Advance Opinionsfrom the District Attorney’s failure to comply with Rule 12-208, which addresses the requirements for docketing an appeal. Specifically, Paragraph D of Rule 12-208 dictates that “[a] docketing statement shall contain . . . a reference to all related or prior appeals.” Rule 12-208(D)(7). How-ever, the District Attorney filed Gonzales and Maso in the Court of Appeals on the same day within one minute of each other without any reference in either docketing statement alerting the Court of Appeals that the appeals were related. In fact, both docketing statements specifically include the statement, “There are no related or prior appeals.”{8} As a consequence, the Court of Ap-peals was not informed in a timely man-ner that it had two related appeals raising the same issue resulting from the same suppression ruling. In fact, when the At-torney General’s Office finally notified the Court of Appeals that it was responsible for related cases, it was too late to join them, as the Court had already issued its memorandum opinion in Maso. Thus, the only way to avoid the issuance of a contradictory opinion at that point was if the second panel, after hearing different arguments made by a different defendant, agreed with the reasoning and conclusion of the first panel regarding whether to uphold the suppression order, which it obviously did not. We recognize that by the time the Court of Appeals issued its opinion in Gonzales it was well aware of its contrary decision in Maso. Nonetheless, the dilemma was created by the failings of the District Attorney, and we do not fault the Court of Appeals for taking a different approach after considering the additional arguments raised by a new defendant and concluding that a different result was warranted. The conflict in the Court of Appeals’ memorandum opinions was a matter for this Court to address when it granted certiorari.

{9} But we cannot emphasize enough that if the District Attorney had complied with Rule 12-208(D)(7), the cases could have been joined in the Court of Appeals, foreclosing the possibility of an inconsis-tent result for each defendant and saving a great deal of time for all concerned. Proper disclosure by the District Attorney of the related appeals in the docketing statements would have alerted the Court of Appeals, early on, of the need to assign the cases to the same calendar and would have likely eliminated the confusion that resulted from the assignment of the related cases to different calendars.{10} Likewise, by notifying the Court of Appeals of the related appeals in the docketing statements, the cases could have been assigned to one panel. If the cases had been heard and decided together, a single panel could have resolved any conflicting views about how to apply the law in a single memorandum opinion with the benefit of the arguments from all parties at one time. At the very least, the Court of Appeals could have delayed a decision in Maso until the Court could hear the appeal in Gonzales. But due to the District Attorney’s failure to comply with Rule 12-208(D)(7), procedural confusion resulted in the issu-ance of inconsistent opinions by the Court of Appeals.{11} We were then faced with having to address the contradictory Court of Ap-peals opinions. The State suggests that the conflict could be resolved simply by reversing Gonzales. However, as noted above, we agree with the Court of Appeals’ reasoning and conclusion in Gonzales and disagree with the State’s assertion that the second Court of Appeals panel was bound to decide Gonzales as the first panel de-cided Maso. Thus, after a thorough review of the procedural quagmire and careful consideration of the basis for the Gonzales opinion issued by the Court of Appeals, we decided that the writ of certiorari was

improvidently issued in this case and should be quashed. However, we remain deeply concerned by the fact that the State’s fundamental basis for this appeal was the inconsistent rulings by the Court of Ap-peals, which would not have occurred had the District Attorney complied with Rule 12-208(D)(7).{12} Rule 12-208 was enacted to elimi-nate the difficulty that occurred with the inconsistent rulings in these related ap-peals. The situation that arose as a result of the rule violation demonstrates that each and every rule has a purpose and consequences can be severe if manda-tory rules are not followed. With that in mind, this decision serves to remind all appellate practitioners, and especially district attorneys, of something each of us already knows but that bears repeating. We require that all lawyers docketing an appeal comply with Rule 12-208 (and all other Rules of Appellate Procedure for that matter). Failure to do so is no small mat-ter, which these related appeals so clearly demonstrate.III. CONCLUSION{13} Because we ultimately considered the legal analysis and conclusion of the Court of Appeals with regard to the Fourth Amendment search and seizure issue raised in this appeal to be proper, we quashed the writ of certiorari. We did so amidst our serious concerns about the procedural hornet’s nest and unwarranted inconsistencies in opinions that would have been easily avoided had the District Attorney complied with the Rules of Ap-pellate Procedure.{14} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:PETRA JIMENEZ MAES, Chief JusticeRICHARD C. BOSSON, JusticeEDWARD L. CHÁVEZ, JusticeCHARLES W. DANIELS, Justice



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STATE OF NEW MEXICO,Plaintiff-Appellant,

v.CHARLES SUSKIEWICH,

Defendant-AppelleeNo. 34,187 (filed September 12, 2013)

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTYJAMES A. HALL, District Judge


OLGA SERAFIMOVAAssistant Attorney General

Santa Fe, New Mexicofor Appellant

TODD A. COBERLYCOBERLY & ATTREP, L.L.L.P.

Santa Fe, New Mexico

JOHN W. DAYEGOLF, FERLIC, & DAY, L.L.C.

Santa Fe, New Mexicofor Appellee

Opinion

Edward L. Chávez, Justice{1} The district court granted Defendant Charles Suskiewich’s motion to sup-press evidence. The State is permitted by both statute and procedural rule to appeal a district court order suppressing evidence within ten days after the order is filed. See NMSA 1978, § 39-3-3(B)(2) (1972); Rule 12-201(A)(1) NMRA. The State may also ask the district court to reconsider its ruling. In this case, we discuss the procedure for the State to seek (1) a district court’s reconsidera-tion of a suppression order while at the same time preserving its right to appeal the suppression order, and (2) whether the State adhered to the statutory proce-dure in this case. We hold that the State may ask the district court to reconsider a suppression order while at the same time preserving the State’s right to appeal the suppression order, provided that the State files its motion to reconsider within ten days of the filing of the suppression order. In this case, the State filed its motion to reconsider after the ten-day time period had expired, and therefore, although the district court could still re-consider the suppression order, the State failed to preserve its right to appeal. We therefore dismiss the appeal as untimely filed.

BACKGROUND{2} On January 19, 2012, a grand jury indicted Defendant on one count of first-degree murder, one count of tampering with evidence, and one count of receiving stolen property. On July 27, 2012, Defen-dant filed a motion to suppress “(1) all statements made by [Defendant] before he was given warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); (2) the physi-cal evidence of a gun; and (3) the custodial interrogation of [Defendant].” The district court held an evidentiary hearing on De-fendant’s motion and entered an order on December 6, 2012, granting the motion.{3} On January 4, 2013, the State filed a motion asking the district court to recon-sider the suppression order. On February 15, 2013, the case was reassigned to a new judge, who denied the State’s motion to reconsider on April 9, 2013, on the ground that the State had failed to establish that any of the prior judge’s rulings were clearly erroneous or manifestly unjust.{4} Nine business days later, on April 22, 2013, the State filed a notice of appeal to the Court of Appeals “from the Order Denying the State’s Motion to Reconsider.” The appeal was transferred from the Court of Appeals to this Court on June 5, 2013. See State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (con-cluding “that the legislature intended for [this Court] to have jurisdiction over interlocutory appeals in situations where

a defendant may possibly be sentenced to life imprisonment or death”); see also NMSA 1978, § 34-5-10 (1966) (“No matter on appeal in the supreme court or the court of appeals shall be dismissed for the reason that it should have been docketed in the other court, but it shall be transferred by the court in which it is filed to the proper court.”).{5} On June 13, 2013, Defendant filed a motion to dismiss the State’s appeal, ar-guing that the appeal was neither timely nor authorized by Section 39-3-3. In re-sponse, the State asks this Court to deny Defendant’s motion to dismiss because (1) motions to reconsider should be encour-aged in order to further judicial economy, and (2) Defendant waived his objection to the timeliness of the State’s appeal because he failed to object in the district court to the timing of the State’s motion for reconsideration, which was filed outside of the ten-day appeal period permitted by Section 39-3-3(B)(2). In reply, Defendant contends that this Court lacks jurisdic-tion to consider the merits of the State’s untimely appeal.DISCUSSION{6} Defendant argues that the State’s appeal should be dismissed because (1) no statutory or constitutional provision grants the State a right to appeal the district court’s denial of a motion to reconsider, and (2) even if the State’s appeal is con-strued as an appeal from the underlying suppression order, the appeal is untimely. We review de novo whether the State’s no-tice of appeal is effective and timely under the statutes and procedural rules govern-ing appeals from suppression orders. See State v. Hall, 2013-NMSC-001, ¶ 9, 294 P.3d 1235 (“Interpretation of a statute is an issue of law that we review de novo.”); Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 7, 145 N.M. 650, 203 P.3d 865 (“Determin-ing whether Defendant’s appeal was timely involves the interpretation of court rules, which we review de novo.”).{7} “Generally, the State cannot appeal proceedings from a judgment in favor of the defendant in a criminal case ab-sent a constitutional provision or statute conferring that right.” State v. Sanchez, 2008-NMSC-066, ¶ 7, 145 N.M. 311, 198 P.3d 337 (internal quotation marks and citations omitted). Defendant argues that the State’s appeal in this case must be dismissed because the State has neither a statutory right nor a constitutional right to appeal from the district court’s denial of a motion to reconsider. The State responds



http://www.nmcompcomm.us/Advance Opinionsthat it has a right to appeal a district court order suppressing evidence and asks this Court to construe its appeal from the motion to reconsider as an appeal from the underlying suppression order. See § 39-3-3(B)(2); see also State v. Heinsen, 2005-NMSC-035, ¶ 12, 138 N.M. 441, 121 P.3d 1040 (noting that “an appeal of a suppression order has been held to be a statutory right, rather than a constitutional right”).{8} This Court has “stated [a] policy of facilitating the right of appeal by liberally construing technical deficiencies in a no-tice of appeal otherwise satisfying the time and place of filing requirements.” Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12, 112 N.M. 226, 814 P.2d 94; see also Wake-land v. N.M. Dep’t of Workforce Solutions, 2012-NMCA-021, ¶ 7, 274 P.3d 766 (“New Mexico courts have not been stringent about the form and content requirements of documents filed in an effort to seek ap-pellate review, so long as the information provided in the non-conforming docu-ment is adequate to convey the basic intent of the party filing the document.”). Thus, the State’s notice of appeal is not necessar-ily invalid merely because it refers to the district court order denying the motion to reconsider, rather than referencing the underlying, appealable suppression order.{9} Defendant argues that, even if this Court were to construe the State’s notice of appeal as pertaining to the underlying suppression order, the State’s appeal must be dismissed because the appeal was not timely filed within ten business days of the suppression order. See § 39-3-3(B)(2) (allowing the State ten days to file a notice of appeal from an “order of a district court suppressing or excluding evidence”); Rule 12-201(A)(1) (same); see also Rule 12-308(A) NMRA (“When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation”).{10} The State concedes that it filed its motion to reconsider almost a month after the district court entered its order suppressing evidence and that it filed the notice of appeal nine business days after the district court’s denial of the motion to reconsider, almost four months after the entry of the suppression order. The State argues, however, that Defendant waived his right to challenge the timeliness of the State’s appeal because Defendant failed to object to the timing of the State’s motion to reconsider in district court. For the reasons

that follow, we disagree that Defendant was obligated to object in district court to the timing of the State’s motion to reconsider.{11} A district court possesses inherent power to modify an order suppressing evidence at any time prior to the entry of final judgment in a case. See Sims v. Sims, 1996-NMSC-078, ¶ 59, 122 N.M. 618, 930 P.2d 153 (“District courts have plenary power over their interlocutory orders and may revise them . . . at any time prior to final judgment.” (internal citation omit-ted)); see also Heinsen, 2005-NMSC-035, ¶ 12 (explaining that suppression orders are interlocutory rulings).{12} Although our procedural rules do not grant the State an express right to file a motion to reconsider a suppression order, the common law has long recognized the validity and utility of motions to recon-sider in criminal cases. See State v. Roybal, 2006-NMCA-043, ¶¶ 14, 16, 139 N.M. 341, 132 P.3d 598 (finding authority for motions to reconsider in the common law, despite the fact that there is no “rule of pro-cedure that specifically allows the State to file a motion to reconsider or set aside an order of dismissal in a criminal case”). Mo-tions to reconsider “are a traditional and virtually unquestioned practice and serve judicial economy by permitting lower courts to correct possible errors and thus avoid time-consuming and potentially un-necessary appeals.” Id. ¶ 16 (internal quo-tation marks and citation omitted); see also State v. Gonzales, 1990-NMCA-040, ¶ 43, 110 N.M. 218, 794 P.2d 361 (recognizing that motions to reconsider enable lower courts to correct errors, relieve appellate courts of unnecessary burdens, and may result in more expedient dispositions of criminal cases).{13} Accordingly, the State may move the district court to reconsider an order suppressing evidence at any time prior to the entry of a final judgment. In this case, Defendant had no cause to object when the State filed a motion to reconsider almost one month after the entry of the suppres-sion order but before the entry of a final judgment. The State’s motion to reconsider constituted a timely, valid means to seek relief in the district court.{14} However, unlike a motion to recon-sider, a notice of appeal from a suppression order must be filed within the ten-day period prescribed by Section 39-3-3(B)(2) and Rule 12-201(A)(1). The State admits that its notice of appeal was filed outside this ten-day period but relies on Roybal, 2006-NMCA-043, ¶¶ 16-17, to argue that

a motion to reconsider tolls the appeal period until after the district court has ruled on the motion. Although we agree that a motion to reconsider filed within the permissible appeals period can toll the time to appeal, we conclude that the appeal time was not tolled in this case.{15} In Roybal, our Court of Appeals considered whether a motion to reconsider a district court order, filed within the per-missible time period for filing a notice of appeal, can operate to suspend the final-ity of the court order and toll the time to appeal until the district court has ruled upon the motion. Id. ¶¶ 7, 16-17. Several days after the district court entered an order dismissing the case against Roybal, the State filed two motions asking the district court to reverse the dismissal. See id. ¶¶ 4-6. Approximately four months later, the district court denied the State’s post-dismissal motions and entered an amended order of dismissal. Id. ¶ 6. The State then filed a notice of appeal within thirty days of the district court’s denial of the motions. Id.; see generally Rule 12-201(A)(2) (allowing a party thirty days to file a notice of appeal from an appealable district court judgment or order, other than an order suppressing evidence).{16} The Roybal court concluded that “the State’s post-dismissal motions sus-pended the finality of the original dis-missal order and delayed the time for appeal until the trial court disposed of the State’s motions.” 2006-NMCA-043, ¶ 7. Under those circumstances, the full thirty-day time period for filing an ap-peal began to run when the district court disposed of the post-dismissal motions. Id. ¶ 17. The Court of Appeals held that the State’s notice of appeal was timely filed because (1) the State filed its motions to reconsider within the permissible time to appeal, thus tolling the thirty-day appeal period, and (2) the State’s notice of appeal was filed within thirty days following the district court’s disposition of the motions to reconsider. Id.{17} We agree with the Court of Appeals that a motion to reconsider filed within the permissible appeal period suspends the finality of an appealable order or judg-ment and tolls the time to appeal until the district court has ruled on the motion. See id. This rule is consistent with our Rules of Appellate Procedure, which provide that certain post-judgment motions suspend the time to appeal until such motions have been determined by the district court. See Rule 12-201(D) (“If a party



http://www.nmcompcomm.us/Advance Opinionstimely files a motion pursuant to Section 39-1-1 NMSA 1978, Paragraph B of Rule 1-050 NMRA, Paragraph D of Rule 1-052 NMRA, or Rule 1-059 NMRA, the full time prescribed in this rule for the filing of the notice of appeal shall commence to run and be computed from the entry of an order expressly disposing of the motion.”); see also Grygorwicz, 2009-NMSC-009, ¶ 8 (explaining that “if a party makes a post-judgment motion directed at the final judgment . . . , the time for filing an appeal does not begin to run until the district court enters an express disposition on that motion”).{18} Applying these principles to this case, it is clear that the State cannot take advantage of the rule in Roybal because its motion to reconsider was filed outside the permissible ten-day appeal period set forth in Section 39-3-3(B)(2) and Rule 12-201(A)(1). The State concedes that it filed its motion to reconsider twenty-nine days after the order suppressing evidence, “fifteen days too late under Roybal.” Ac-cordingly, the motion to reconsider did not toll the appeal period, and the State’s notice of appeal was untimely.{19} Finally, we reject Defendant’s con-tention that this Court must dismiss the

State’s untimely appeal for lack of juris-diction, and note that this Court retains subject matter jurisdiction to consider an untimely appeal. See Govich, 1991-NMSC-061, ¶ 12 (explaining that this Court has subject matter jurisdiction to consider an untimely appeal). We do, however, require an appellant to properly invoke this Court’s jurisdiction by complying with manda-tory requirements regarding the time and place of filing a notice of appeal. See id. (noting that this Court will “decline to exercise discretion to excuse or justify any improper attempt to invoke our jurisdic-tion”). This Court will excuse the untimely filing of an appeal only if the appellant has demonstrated that unusual circumstances justify the late filing. See Gulf Oil Corp. v. Rota-Cone Field Operating Co., 1973-NMSC-107, ¶ 2, 85 N.M. 636, 515 P.2d 640 (per curiam) (declining to consider an untimely petition for writ of certiorari “absent some unusual circumstance justi-fying such late filing”); see, e.g., Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2010-NMSC-034, ¶ 21, 148 N.M. 692, 242 P.3d 259 (excusing delay caused by the United States Postal Service because it constituted an unusual circumstance outside the appellant’s control).

{20} Although this Court has discre-tion to consider the merits of an untimely appeal, the State presents no unusual cir-cumstances that justify its late filing in this case. Accordingly, we decline to consider the merits of the State’s appeal and grant Defendant’s motion to dismiss.CONCLUSION{21} The State failed to file its notice of appeal within the ten-day period prescribed by Section 39-3-3(B)(2) and Rule 12-201(A)(1). The State’s motion to reconsider did not toll the time to appeal because it was filed outside the permissible ten-day appeal period. We therefore grant Defendant’s motion to dismiss the State’s appeal as untimely and remand this case to the district court for further proceedings consistent with this decision.{22} IT IS SO ORDERED.

EDWARD L. CHÁVEZ, Justice

WE CONCUR:PETRA JIMENEZ MAES, Chief JusticeRICHARD C. BOSSON, JusticeCHARLES W. DANIELS, JusticeBARBARA J. VIGIL, Justice



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STATE OF NEW MEXICO, ex rel., HON. CARLOS R. CISNEROS, and HON. GEORGE K. MUNOZ, As members of the New Mexico Legislature and

Citizens of New Mexico, HON. ALAN M. MALOTT, HON. J.C. ROBINSON, HON. JEFF FOSTER MCELROY, and HON. LOUIS P. MCDONALD,

As New Mexico State District Court Judges and Citizens of New Mexico, THE DISTRICT JUDGES ASSOCIATION OF NEW MEXICO, INC.,

a/k/a The District and Metropolitan Judges Association of New Mexico, HON. DUANE K. CASTLEBERRY, HON. DAVID JOEL GARNETT,

HON. KAREN P. MITCHELL, and HON. WARREN WALTON, As New Mexico Magistrate Court Judges and

Citizens of the State of New Mexico, and THE NEW MEXICO MAGISTRATE JUDGES ASSOCIATION,

Petitioners,v.

HON. SUSANA MARTINEZ, Governor of the State of New Mexico, and HON. DIANNA J. DURAN, Secretary of State of New Mexico,

RespondentsNo. 34,646 (filed December 4, 2014)

ORIGINAL PROCEEDING

RAY M. VARGAS, IITHE VARGAS LAW FIRM, L.L.C.

Albuquerque, New Mexicofor Petitioners

JESSICA HERNANDEZMATTHEW J. STACKPOLE

JEREMIAH L. RITCHIESanta Fe, New Mexico

for Respondent Hon. Susana Martinez


SCOTT FUQUAAssistant Attorney General

Santa Fe, New Mexicofor Respondent Dianna J. Duran

Opinion

Per Curiam{1} In the waning hours of the 2014 legislative session, the Legislature passed the General Appropriations Act of 2014, 2014 N.M. Laws, ch. 63, §§ 1-14 (Appro-priations Act), which included a pair of salary increases for judges and justices of the New Mexico state judiciary (collec-tively, judges). The first increase, funded in Section 4(B) of the Appropriations Act, was a 5% raise, the appropriation for which was lumped in with various other appropriations to the judicial branch to pay the salaries of all judicial employees, including judges. See 2014 N.M. Laws, ch. 63, § 4(B) (appropriating, for example,

$7,049,600 to the First Judicial District Court for “[p]ersonal services and em-ployee benefits,” which included funds for a 5% judicial pay increase for the judges of that district). The 5% raise was not separately identified in the language of Section 4(B).{2} The second increase, separately fund-ed in Section 8(A) of the Appropriations Act, was the same 3% raise authorized for all eligible state employees, including judges. See id. § 8(A). Section 8(A)(2) in particular allocated $579,937 to fund the 3% raise for judges and increased the sal-ary of a Supreme Court Justice to $134,922, a sum that included both the 5% and the 3% raises.{3} Calling out what she referred to as a “dramatic 8% raise,” Governor Martinez

used her partial veto authority to strike the following language from Section 8(A) before signing the Appropriations Act into law:

Section [8(A)] . . . The salary increases shall be effective the first full pay period after July 1, 2014, and distributed as follows:. . . (2) five hundred seventy-nine thousand nine hundred thirty-seven dollars ($579,937) to provide the justices of the supreme court a salary increase to one hundred thirty-four thou-sand nine hundred twenty-two dollars ($134,922) and to provide the chief justice of the supreme court, the chief judge of the court of appeals, and judges of the court of appeals, district courts, met-ropolitan courts and magistrate courts a salary increase pursuant to the provisions of Section 34-1-9 NMSA 1978;

Id. § 8(A)(2). Significantly, the Governor did not veto any of the appropriation language or dollar amounts set forth in Section 4(B) which included the funds for a 5% raise.{4} Thereafter, a group of judges, judicial associations, and legislators (collectively, Petitioners) petitioned this Court under Article VI, Section 3 of the New Mexico Constitution to issue a writ of mandamus to the Governor and Secretary of State Duran to declare the Governor’s veto of Section 8(A)(2) unconstitutional. See N.M. Const. art. VI, § 3 (“The supreme court shall have original jurisdiction in . . . mandamus against all state officers, boards and commissions . . . .”). Petitioners also asked this Court to order the Governor and the Secretary of State to reinstate Section 8(A)(2) and to implement the full 8% raise passed by the Legislature, or alternatively to implement the 5% raise separately funded in Section 4(B).{5} Citing a possible appearance of impro-priety or bias about ruling on the issues raised in the petition, the Chief Justice, the Senior Justice, and two Associate Justices of this Court recused themselves from this proceeding. See Order, State ex rel. Cisneros v. Martinez, No. 34,646 (N.M. Sup. Ct. Apr. 16, 2014) (designating Justice Richard C. Bosson as Chief Justice under the rule of necessity for the purpose of appointing justices pro tempore and pre-siding over this petition); see also Pierce v. State, 1996-NMSC-001, ¶ 5, 121 N.M.



http://www.nmcompcomm.us/Advance Opinions212, 910 P.2d 288 (recognizing the rule of necessity articulated by the United States Supreme Court that sometimes requires members of a jurisdiction’s highest tribu-nal, as a matter of duty and necessity, to sit and not recuse). In their place, a quartet of retired jurists, consisting of a former Chief Justice, two former Chief Judges of the Court of Appeals, and a former Chief Judge of the First Judicial District Court, agreed to serve as justices pro tempore for this proceeding. Accord State ex rel. Chavez v. Vigil-Giron, 1988-NMSC-103, ¶ 3, 108 N.M. 45, 766 P.2d 305 (explaining that four district judges were appointed as justices pro tempore after the chief justice, senior justice, and two associate justices recused themselves from appellate review of constitutional reforms to the manner of selecting and retaining future state judges, including members of the Supreme Court).{6} After ordering full briefing and hear-ing the arguments of the parties, the Court denied the petition in part, ruling from the bench that the Governor’s veto was effective with respect to the 3% raise set forth in Section 8(A)(2). The Court also granted the petition in part, ruling that the 5% raise separately funded in Section 4(B) of the Appropriations Act was never vetoed and therefore survived intact. We issued a writ of mandamus consistent with our ruling and ordered the Secretary of the Department of Finance and Administra-tion (DFA) to implement the 5% raise.1 We now issue this opinion to set forth our reasoning in more detail.BACKGROUND{7} As we will explain more fully in this opinion, Petitioners maintain that the Governor’s veto of Section 8(A)(2), which we upheld, had no effect on the 5% raise included in Section 4(B). In response, the Governor challenges the legality of the Legislature’s method of appropriating funds for the 5% pay raise in Section 4(B), separate from Section 8(A)(2) and without any language that specifically identified the 5% raise. We therefore inquire whether any source of law prohibits the Legislature from using an appropriation like that set forth in Section 4(B)—which included funds for a pay raise but without an explicit mention of a raise—to establish a judicial salary that includes a salary increase. This is a matter of first impression, and we thus begin with a brief overview of the various methods the Legislature has used in the

past to establish judicial salaries and pay raises.Historical Approaches To Establishing Judicial Salaries{8} Until 1953, judicial salaries were set forth in the New Mexico Constitution. See N.M. Const. art. VI, § 11 (as amended through 1952) (providing that the annual salary of a Supreme Court Justice shall be $6,000); id. art. VI, § 17 (as amended through 1952) (providing that the an-nual salary of a district court judge shall be $4,500). As a result, salaries could be changed only by amending the Constitu-tion; that is, through a formal proposal and vote in the Legislature followed by a popular election. See N.M. Const. art. XIX, § 1.{9} In 1953, a pair of constitutional amendments removed the specific judicial salary figures from the Constitution and permitted the Legislature to “fix” or “pro-vide” judicial salaries “by law.” See N.M. Const. art. VI, § 11 (“The justices of the supreme court shall each receive such sal-ary as may hereafter be fixed by law.”); id. art. VI, § 17 (“The legislature shall provide by law for the compensation of the judges of the district court.”). Two years later, the Governor signed two statutes into law that set forth the annual salaries of justices and district court judges. See NMSA 1953, § 16-2-1.1 (1955) (providing that a Supreme Court Justice shall receive an annual salary of $15,000); id. § 16-3-33.1 (1955) (provid-ing that a district court judge shall receive an annual salary of $12,500); see also id. § 16-7-3 (1966) (providing that a court of appeals judge shall receive an annual salary of $18,500). For roughly the next 40 years, judicial salaries could be changed only by formally amending the relevant statutes; that is, by passing a bill through both chambers of the Legislature and presenting it to the Governor for signature. See N.M. Const. art. IV, § 22.{10} In 1993, the Legislature repealed the statutes that had been used to “fix” or “provide” judicial salaries “by law” and replaced them with NMSA 1978, Section 34-1-9 (1993, amended 2007), which the Governor signed and which remains in effect to this day. See 1993 N.M. Laws, ch. 278, § 1 (repealing NMSA 1978, Sections 34-2-2, 34-5-3, and 34-6-3 (1990)). Sec-tion 34-1-9 simply provides that Supreme Court Justices shall receive an annual salary that “shall be established by the legislature in an appropriations act.” Sec-

tion 34-1-9 also sets forth a formula for calculating the salaries of the Chief Justice and all other judges and magistrates, us-ing a Justice’s salary as the baseline. For example, the Chief Justice’s annual salary “is two thousand dollars ($2,000) more than the annual salary of a justice of the supreme court,” § 34-1-9(A); the annual salary of a judge of the court of appeals “is ninety-five percent of the annual salary of a justice of the supreme court,” § 34-1-9(D)(1); a district judge’s salary “is ninety-five percent of the annual salary of a judge of the court of appeals,” § 34-1-9(D)(2); and so on.{11} Requiring judicial salaries to be established “by the legislature in an ap-propriations act” appears to have had at least two important consequences. First, it has simplified the process of establish-ing judicial salaries by eliminating the need for substantive legislation that must be separately signed by the Governor, and instead allowing judicial salaries to be included within the legislative budget process. See, e.g., NMSA 1978, § 2-5-4(C) (1967) (“Each state agency, department and institution shall furnish to the legisla-tive finance committee a copy of its appro-priation request made to the department of finance and administration at the same time such request is made to such depart-ment.”). Second, it has required judicial salaries to be established annually because an appropriations act, by design, expires or sunsets at the end of a fiscal year. See, e.g., 2014 N.M. Laws, ch. 63, § 3(C), (E) (providing that the amounts set forth in Section 4 of the General Appropriations Act of 2014 are appropriated “for expen-diture in fiscal year 2015” and that any unexpended balances at the end of the fiscal year shall revert to the general fund). And like any other general appropriations act, an appropriation for judicial salaries is subject to a valid exercise of the Governor’s partial-veto authority. See N.M. Const. art. IV, § 22 (“The governor may . . . disapprove any part or parts, item or items, of any bill appropriating money.”). We discuss the Governor’s partial-veto authority in more detail later in this opinion. Unless properly vetoed, however, judicial salaries including pay raises become law as part of the appropriations process.Legislative Approaches To Establishing Judicial Salaries Under Section 34-1-9{12} Since Section 34-1-9 was enacted in 1993, the Legislature has used three

1 We joined the DFA Secretary as a party to the order for the purpose of implementing our ruling.



http://www.nmcompcomm.us/Advance Opinionsprincipal methods for establishing judicial salaries. Two of the methods have been used when the Legislature sought to in-crease judicial salaries. The third method has been used when salaries were to remain unchanged from the previous year’s levels.{13} The first method appeared in the General Appropriations Act of 1994, in which the Legislature sought to give judges a 3% raise. See 1994 N.M. Laws, ch. 6; see also 1995 N.M. Laws, ch. 30. That year, the Legislature funded judicial salaries, including the 3% raise, in Section 4(B) through the general appropriations to the appellate courts and judicial districts to pay the salaries of all employees of each court or judicial district. See 1994 N.M. Laws, ch. 6, § 4(B); see also 1995 N.M. Laws, ch. 30, § 4(B). Like the 2014 ap-propriations we are examining in Section 4(B), these were lump-sum appropriations that did not include a separate item for the salaries of particular employees or classes of employees. For example, the 1994 ap-propriation to the Supreme Court for employee salaries simply provided:

SUPREME COURT:Item (a) Personal Services General Fund [$1,249,400] Total [$1,249,400]Item (b) Employee benefits General Fund [$348,700] Total [$348,700]

1994 N.M. Laws, ch. 6, § 4(B). The Legisla-ture explained in a separate section of the 1994 Act that the appropriations in Section 4(B) included funds for a 3% pay increase for all judicial employees, including judges, and it set forth the prior salary and the new salary of a Supreme Court Justice. See 1994 N.M. Laws, ch. 6, § 3(L)(c) (“[J]ustices of the supreme court shall receive a three percent salary and benefit increase, from [$77,250] to [$79,567] . . . .”); see also 1995 N.M. Laws, ch. 30, § 3(N)(3) (“[J]ustices of the supreme court shall receive a three percent salary and benefit increase, from [$79,567] to [$81,954] . . . .”).{14} Since 1997, the Legislature has pre-ferred a second method for establishing ju-dicial salaries that included a pay increase, electing to fund only existing salaries along with the general appropriations to the ju-diciary in Section 4(B), and funding any raise through a separate appropriation to the DFA, a part of the executive branch, in another section of the act much like the present Section 8(A)(2). Compare, e.g., 1997 N.M. Laws, ch. 33, § 4(B) (ap-propriating funds to the judicial branch for “[p]ersonal services” and “[e]mployee

benefits”), with id. § 9 (appropriating funds to the DFA to provide a 2% raise to all eligible state employees) (vetoed). Under this approach, the Legislature’s appropria-tion to the DFA specifically provided that judges would receive the raise, either by identifying a percentage increase or by stating the new salary. Compare, e.g., 1997 N.M. Laws, ch. 33, § 9(C)(2) (providing that judges and justices shall receive a 2% raise) (vetoed), with, e.g., 1999 N.M. Laws, 1st Spec. Sess., ch. 3, § 8(A)(1) (providing a salary increase to $87,773).{15} The third method of establishing judicial salaries has arisen by implica-tion in years when judges did not receive a salary increase. In those years, the appropriations acts were silent about judicial salaries, with no language that specifically mentioned judicial pay. Only the dollar figures set forth in the general appropriations to the judiciary in Section 4(B) showed by mathematical inference the Legislature’s intent to establish judicial salaries at the previous years’ levels. See, e.g., 2009 N.M. Laws, ch. 124, § 4(B) (ap-propriating, for example, $2,797,300 to the Supreme Court for “[p]ersonal services and employee benefits”); 2010 N.M. Laws, 2d Sess., ch. 6, § 4(B) (appropriating, for example, $2,813,100 to the Supreme Court for “[p]ersonal services and employee benefits”); 2011 N.M. Laws, ch. 179, § 4(B) (appropriating, for example, $2,711,400 to the Supreme Court for “[p]ersonal services and employee benefits”); 2012 N.M. Laws, ch. 19, § 4(B) (appropriating, for example, $2,777,000 to the Supreme Court for “[p]ersonal services and em-ployee benefits”).{16} A comparison of these three meth-ods reveals a notable difference about the recipient of the appropriations for judicial salaries. In years when the Legislature used the first or third method, it appropriated the entire amount for judicial salaries to the judicial branch. In years when it used the second method, however, the Legislature appropriated funds for exist-ing salaries to the judicial branch, and it appropriated funds for the raise to the executive branch, to be distributed by the DFA. The Legislature has never provided an explanation for the different recipients or the different methods of providing judicial salaries and raises.{17} All three methods also share impor-tant similarities. First, under each method the appropriations in Section 4(B) have al-ways been lump-sum appropriations with-out item-by-item language, and as such

Section 4(B) has never included a separate line or item for judicial salaries, even in years when it included funds for a judicial salary increase. Instead, the money appro-priated in Section 4(B) for judicial salaries has been an inseparable, unspecified por-tion of a larger appropriation to a court or judicial district. And second, when the Legislature has sought to increase judicial salaries, it has expressly identified the raise elsewhere in the appropriations act, apart from the general appropriations for judicial employee salaries in Section 4(B).The 2014 Approach—A Hybrid Method{18} In 2014, the Legislature tried some-thing different, a hybrid of sorts. Borrow-ing from the first method described above, the Legislature appropriated funds for existing judicial salaries in Section 4(B), plus sufficient funds for a 5% pay raise through the general appropriations to the judicial branch. And borrowing from the second method, the Legislature in Sec-tion 8(A) separately appropriated funds for a 3% raise through an appropriation to the DFA. See 2014 N.M. Laws, ch. 63, § 8(A) (“Nineteen million seven hundred ninety-one thousand six hundred dollars ($19,791,600) is appropriated from the general fund to the department of finance and administration for expenditure in fis-cal year 2015 to provide salary increases of three percent to employees in budgeted positions who have completed their pro-bationary period subject to satisfactory job performance.”).{19} As part of the appropriation for the 3% raise, the Legislature directed the DFA to distribute $579,937 of the appropriation “to provide the justices of the supreme court a salary increase to . . . $134,922,” and to provide the Chief Justice and other judges and magistrates with a salary in-crease under Section 34-1-9. See id. § 8(A)(2). The parties agree that the $134,922 salary in Section 8(A)(2) did not match the 3% raise funded in that same provision; it was $9,994 more than the previous year’s salary of $124,928 and represented a total increase of 8%. Compare id. § 8(A)(2) (increasing the salary of a Supreme Court Justice to $134,922), with 2013 N.M. Laws, ch. 227, § 8(A)(2) (increasing the salary of a Supreme Court Justice to $124,928).{20} We pause to emphasize a critical point. In this writ proceeding, there is no serious dispute that the appropriations for personal services and employee benefits in Section 4(B) did, in fact, include funds for the 5% raise, though the funds were not specifically identified as such. Indeed,



http://www.nmcompcomm.us/Advance OpinionsPetitioners appended to their reply brief several documents purporting to prove that the 5% raise was part of the Section 4(B) appropriations, including an affidavit from Senator George Munoz, a party to this proceeding and an LFC member, testifying that Section 4(B) included funds for a 5% raise. Senator Munoz’s affidavit included two attachments in support of his testi-mony: a pre-session recommendation by the Legislative Finance Committee (LFC) to appropriate funds in the Appropriations Act to provide a 5% pay increase to justices and judges; and a post-session LFC report explaining that Section 4(B) included funds for a 5% judicial pay raise. Similarly, the Governor appended an affidavit from the Director of the State Budget Division of the DFA explaining certain elements of the budgetary process and acknowledging that Section 4(B), “contains more funding than is necessary to fund judges’ salaries at the fiscal year 2014 level.” The Director states that this additional funding can be used for other expenses or revert to the general fund, but he never contradicts the premise that the additional funds were intended to provide a 5% raise to judges or that they can be used for that purpose. No party objected to or moved to strike any of these exhibits.{21} While none of these documents is talismanic, we consider them insofar as they support the obvious conclusion: the Legislature’s unusual, two-phased ap-proach to funding judicial salaries was a matter of common knowledge. Everyone involved in the budgetary process seems to have understood that the Legislature gave judges two raises: the same 3% raise in Section 8(A)(2) provided to all quali-fied state employees, and a separate 5% raise in Section 4(B), commingled with the appropriations for the salaries of all judicial employees and publicized in key legislative documents. See, e.g., LFC FY2015 Budget Recommendations, avail-able at http://www.nmlegis.gov/lcs/lfc/lfcdocs/budget/ 2015RecommendVolII.pdf, at 14 (“[T]he courts requested an ad-ditional [$617,000] to provide all judges a 5 percent compensation increase . . . . The [LFC] recommendation provides adequate funding for . . . a 5 percent compensation increase for judges . . . .”).2

{22} Recognizing that the new salary figure set forth in Section 8(A)(2) was the sum of both the 5% and 3% raises, the Governor vetoed that provision in its entirety, explaining:

I have vetoed the compensation increases for . . . elected judges throughout the state.. . .[T]hough I would have supported a more modest 3% increase in pay for judges that would have put them on par with other pay raises in the budget, I cannot support the dramatic 8% raise requested in the budget.

Senate Executive Message No. 112 (Mar. 11, 2014), available at http://governor.state.nm.us/uploads/FileLinks/8c4df00e709649488058c836188fb9d5/SEM112_1.pdf. Based on her explanation, it seems clear that the Governor believed that her veto of Section 8(A)(2) eliminated both raises. We now turn to that question: whether the Governor’s veto was effective in regard to either section of the Appro-priations Act.DISCUSSION{23} On previous occasions when this Court has been called upon to consider the proper exercise of the Governor’s partial veto authority, we have tried to articulate a set of guiding principles, rooted in the idea that the partial veto power is “a negative power, or a power to delete or destroy a part or item, and . . . not a positive power, or a power to alter, enlarge or increase the effect of the remaining parts or items.” State ex rel. Sego v. Kirkpatrick, 1974-NMSC-059, ¶ 18, 86 N.M. 359, 524 P.2d 975. Thus, a partial veto must “destroy[] the whole of an item or part [without] distort[ing] the legislative intent.” Id.; see also State ex rel. Smith v. Martinez, 2011-NMSC-043, ¶ 8, 150 N.M. 703, 265 P.3d 1276 (“Our case law emphasizes the limitation of the Governor’s partial veto power by requiring that the veto eliminate the whole of an item or part and prohibit-ing the striking of individual words that result in legislation inconsistent with the Legislature’s intent.”). These broad principles provide only the starting point of our analysis; ultimately, each situation

has come down to the particular facts of a particular appropriation and a particular veto. See, e.g., Sego, 1974-NMSC-059, ¶ 11 (separately analyzing the validity of seven vetoes). This case is no less fact bound than those that have come before us in the past.{24} At oral argument before this Court the Governor took the position that re-gardless of what the Legislature’s original intent may have been to make two separate appropriations, that intention changed or evolved as the Appropriations Act took final form. Relying on the one, lump sum salary figure set forth in Section 8(A)(2), the Governor argued that the Legislature’s ultimate intent was to provide a single 8% raise in Section 8(A)(2) which the Governor duly vetoed. This argument is not without a certain logic because, as we have indicated, that lump sum salary figure ($134,922) is the total sum of both appropriations.{25} But we do not find the Legislature’s intent so easy to discern from Section 8(A)(2). The unexplained mismatch in that provision between the funds allo-cated for the 3% raise and the salary that represented an 8% raise—a mismatch the Governor recognized—renders the meaning of Section 8(A)(2) unclear. At the very least, the mismatch signaled that Section 8(A)(2) was not the only portion of the Appropriations Act that concerned a judicial pay increase. When legislative language is “unclear, ambiguous, or reasonably subject to mul-tiple interpretations,” we look to other in-dicators of legislative intent, including “the history, background, and overall structure of the statute.” See State v. Almanzar, 2014-NMSC-001, ¶ 15, 316 P.3d 183. Based on the Appropriations Act’s structure, we are convinced that the Legislature intended two raises. To conclude otherwise would require us to overlook the Legislature’s own choice to fund these raises through two separate appropriations, contained in two separate sections of the Appropriations Act, and made to two separate branches of government—5% to the Judiciary and 3% to the DFA. Under these circumstances, we are persuaded that the Legislature in-tended two separate raises and provided appropriations for them in two separate

2 The LFC also noted that its recommendation took into account the findings of the legislatively created Judicial Compensation Commission which recommended increas-ing judicial salaries by 11 percent to bring New Mexico judge salaries in line with those in Oklahoma. The 5 percent salary increase requested would increase a district judge’s salary from $113 thousand to $119 thousand. The commission found that New Mexico’s district court judges are the lowest paid in the country.

LFC FY2015 Budget Recommendations, supra, at 14.


http://www.nmlegis.gov/lcs/lfc/

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http://www.nmcompcomm.us/Advance Opinionssections of the Appropriations Act, one of which the Governor vetoed, the other of which remained intact.{26} The salary figure set forth in Sec-tion 8(A)(2) does not compel a different conclusion. Rather than showing that the Legislature intended to provide a single 8% raise, we view the salary as signaling the Legislature’s unusual approach to estab-lishing judicial salaries in the Appropria-tions Act. The salary on its face is more than the 3% raise appropriated in Section 8(A), indicating that the Legislature had appropriated a separate 5% raise for judges elsewhere in the Act—not in Section 8(A)(2)—which the parties knew to be Section 4(B). Having concluded that the Legisla-ture intended two separate raises, we now consider the veto’s effect on each raise in turn.The Veto Eliminated the 3% Raise{27} The veto’s effect on the 3% raise strikes us as a fairly easy question. The parties do not dispute that the Legisla-ture intended the money allocated in Section 8(A)(2) to fund the same 3% raise for judges that was given to other state employees in Section 8(A). Nor do they dispute that the Governor’s veto removed from the Appropriations Act every trace of the 3% raise for judges by eliminating all language related to the 3% raise, the entire allocation for the 3% raise, and the salary that included the raise. Everything related to the 3% raise for judges was confined to Section 8(A)(2), which the Governor vetoed in its entirety. Our case law requires noth-ing more. See, e.g., State ex rel. Dickson v. Saiz, 1957-NMSC-010, ¶ 28, 62 N.M. 227, 308 P.2d 205 (“It mattered not where in the bill they rested if they constituted an integral part of the subject being partially vetoed—out they came!”). The veto “destroy[ed] the whole” of the 3% raise for judges and therefore was an ef-fective exercise of the Governor’s partial veto authority.

The Veto Did Not Eliminate the 5% Raise{28} The closer question is whether the veto of Section 8(A)(2) had any effect on the 5% raise funded in Section 4(B). Petitioners contend that even if the veto of the 3% raise was effective, the 5% raise was unaffected because the Governor did not veto the appropriations in Section 4(B) that included funds to pay for the 5% raise. In a series of related arguments, the Governor counters that because her veto of Section 8(A)(2) eliminated the Appro-priations Act’s only explicit mention of a judicial pay increase (“to provide the chief justice [and other judges] a salary increase pursuant to the provisions of Section 34-1-9”), her veto simply left salaries intact at the previous year’s levels. In other words, the Governor takes the position that her veto of Section 8(A)(2) reached beyond the 3% raise funded in that provision and also eliminated the 5% raise funded in Sec-tion 4(B). We now turn to a more detailed examination of the Governor’s arguments.The Legislature’s historical practice, though informative, does not necessarily control how the Legislature may choose to act in a different legislative session{29} The Governor relies heavily on years when the general appropriations acts were silent about judicial pay to argue that her veto of Section 8(A)(2) eliminated the 5% raise in Section 4(B). She contends that the vetoed Appropriations Act “looks identical to the general appropriations acts in dozens of other years . . . when the legislature has simply omitted any authorization of new judicial salaries” and judges continued to be paid at the previous year’s salary levels. By contrast, in years when the Legislature has sought to give judges a raise, the Legislature has explicitly identified the raise in a separate provision of the appropriations act. The Governor therefore maintains that judges must continue to be paid at their 2014 salary levels. Like previous years when judges did not receive a raise, her veto left

no language in the Appropriations Act to explicitly “authorize” a raise, whether 3%, 5%, or both.{30} Petitioners respond that nothing in the law requires the Legislature to “autho-rize” a raise in the manner the Governor prescribes. Rather, the New Mexico Con-stitution and Section 34-1-9 require only that judicial salaries be “fixed,” “provided,” or “established” by the Legislature in an appropriations act, without specifying where or how in the act the Legislature must do so or what language or detail the Legislature must employ to establish judi-cial salaries. Petitioners also point to years when the appropriations acts were silent about judicial salaries as evidence that the Legislature may “establish” judicial salaries with a mere appropriation. In this instance, Petitioners have the more accurate argu-ment.{31} As previously explained, under Sec-tion 34-1-9 judicial salaries must annually be “established by the Legislature in an appropriations act” because appropriations acts expire or sunset after a year. Thus, in those years when the appropriations acts did not explicitly reference judicial pay, the general appropriations to the judiciary in Section 4(B), which included unspecified amounts to fund judicial salaries, were sufficient to “establish” judicial salaries as required by statute.3 As was true this year, it was understood in those years that the Legislature had appropriated funds to pay judges at a particular level, even without specific language in the act to provide a base figure for the formula in Section 34-1-9.{32} And while in recent years it may have been the Legislature’s historical practice— and perhaps even the better practice—to explicitly identify a judicial salary increase separately from Section 4(B), we have found nothing in the law that requires the Legislature to do so. We are unable to find support for the Governor’s contention to the contrary.

3 The evolution of Section 34-1-9 supports this view. From its enactment in 1993 until it was amended in 2004, Section 34-1-9(A) provided, “Justices of the supreme court shall each receive an annual salary of seventy-seven thousand two hundred fifty dollars ($77,250).” The statute also provided, “For [fiscal year 1995] and all subsequent fiscal years, the annual salary for justices of the supreme court . . . shall be established by the legislature in an appropriations act.” Between 1993 and 2004, the annual salaries of judges were increased at least four times, including in 2000, when the annual salary of a Supreme Court Justice was increased to $90,407. See 2000 N.M. Laws, 2d. Sess., ch. 5, § 10. But the following two years, the appropriations acts were silent about judicial salaries. In 2001, the Governor vetoed the appropriations to the DFA for compensation increases for all state employees, leaving only the general appropriations for existing salaries in Section 4, see 2001 N.M. Laws, ch. 64, § 9 (vetoed), and in 2002, the appropriations act did not include any language about judicial salaries, other than the general appropriations in Section 4(B), see 2002 N.M. Laws, Extraordinary Sess., ch. 4. In each of those years, judicial salaries seemingly would have reverted to the 1993 level still codified in Section 34-1-9(A), but for the appropriations in Section 4(B) that “established” salaries—with or without language to that effect—at the same level established in the 2000 general appropriations act.



http://www.nmcompcomm.us/Advance OpinionsNo constitutional or statutory provision limits how the Legislature may choose to establish judicial salaries, including pay raises, as long as they are “established by the legislature in an appropriations act.” Section 34-1-9 (E). The details for estab-lishing judicial salaries—like many parts of the appropriations process—appear to be entrusted to the discretion of the Leg-islature. The Constitution requires only that every law “making an appropriation” shall “specify” the “sum appropriated” and the “object to which it is to be applied.” N.M. Const. art IV, § 30. No party chal-lenges the 5% pay raise under Article IV, Section 30. Absent any such limitation clearly imposed on a co-equal branch of government, whether by constitution or statute, principles of judicial restraint and respect for the constitutional separation of powers dictate that we not invent one. See N.M. Const. art. III, § 1 (“The powers of the government of this state are divided into three distinct departments, the legisla-tive, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others . . . .”).{33} More importantly, to treat the vetoed Appropriations Act the same as previous appropriations acts—when legislative silence about judicial salaries maintained the status quo—would be to ignore a critical difference. Even after the veto, this year’s appropriations in Section 4(B) still included money for a raise, when the prior years’ appropriations did not. To ignore this distinction would be to turn a blind eye to the obvious—to treat the appropriation for the 5% raise as though it were hidden in plain sight. We decline to do so. The appropriations in Section 4(B) were sufficient to “establish” judicial salaries, including a 5% raise. More to the point, nothing in the law dictates that the Legislature could not establish judicial salaries in that fashion.To veto the 5% raise, the Governor had to veto the appropriations in Section 4(B){34} In support of a related argument, the Governor cites our recent opinion in Stewart to argue that the money ap-propriated in Section 4(B) to fund the 5% raise cannot be used for its intended purpose because her veto eliminated all of the “language” in the Appropriations Act related to a judicial salary increase. See Stewart, 2011-NMSC-045, ¶ 15 (“All language that relates to the subject to be

proscribed by the veto must be vetoed for the veto to be valid.” (emphasis added)). The Governor asserts that the judicial enti-ties that received the additional money in Section 4(B) may spend it on any expenses related to personal services or employee benefits—except to increase judicial sala-ries. She alternatively suggests that the courts may follow the DFA’s established procedures for transferring funds between appropriated categories, or may allow the money to revert to the general fund at the end of the fiscal year.{35} The Governor’s argument overlooks the distinct facts of this case. The Legisla-ture gave judges a 5% raise through the appropriations in Section 4(B), without any “pay raise language” to veto but the appropriations themselves. Under these circumstances, the general rule articu-lated in Stewart that “[a]ll language that relates to the subject to be proscribed by the veto must be vetoed for the veto to be valid” simply does not apply. See Stewart, 2011-NMSC-045, ¶ 15 (emphasis added). The Legislature having left no language to veto in Section 4(B), the Governor could not rely on her veto of other language elsewhere in the Act appropriating other money. We do not read Stewart so narrow-ly that it alters the Governor’s underlying responsibility when exercising her partial-veto authority: to “destroy[] the whole of an item or part [without] distort[ing] the legislative intent.” Sego, 1974-NMSC-059, ¶ 18. Consistent with our admonition in Sego, the Governor had to veto the “whole” appropriation where the Legislature placed it. The appropriations in Section 4(B) represented the only “language” for the Governor to veto if she disapproved of the 5% raise.{36} Petitioners argue that the Gover-nor’s assertion—that the funds for the 5% raise may be spent on anything but a 5% raise—supports their position that they should receive both the 5% and 3% raises passed by the Legislature. Petition-ers contend that the veto of Section 8(A)(2), itself, was unconstitutional under Sego because it “alter[ed] . . . the effect” of the funds intended for the 5% raise by requiring them to be spent on something other than the raise, effectively “creat[ing] new legislation.” See Sego, 1974-NMSC-059, ¶ 18 (“The power of partial veto is . . . a negative power, or a power to delete or destroy a part or item, and . . . not a posi-tive power, or a power to alter, enlarge or increase the effect of the remaining parts or items. It is not the power to enact or

create new legislation by selective dele-tions.” ). We do not reach this argument because of our determination that the Legislature intended two separate raises. The veto of Section 8(A)(2) had no effect on the 5% raise funded in Section 4(B). The only way to eliminate the 5% raise was to veto the appropriations in Section 4(B) that included the funds for that purpose.Including the 5% raise in the Section 4(B) appropriations was not unconstitutional “subtle drafting”{37} Finally, the Governor contends that, if the veto of Section 8(A)(2) did not also eliminate the 5% raise in Section 4(B), the entire appropriation in Section 4(B) “is improper and should be stricken” due to “careful drafting of legislation” aimed at “circumvent[ing] or preempt[ing] the Governor’s veto power.” This argument is based on our suggestion in Sego that “[t]he Legislature may not properly abridge [the Governor’s partial veto] power by subtle drafting of conditions, limitations or restrictions upon appropriations.” 1974-NMSC-059, ¶ 12. However, Sego did not apply or otherwise develop that language or consider the possible results of “subtle drafting” on a properly exercised partial veto.{38} Not until State ex rel. Coll v. Car-ruthers were we faced with a situation that required us to consider the limitation that we had placed on the Legislature in Sego. See 1988-NMSC-057, 107 N.M. 439, 759 P.2d 1380. In Coll, the petitioners chal-lenged Governor Carruthers’ veto of a restriction or condition imposed by the Legislature upon an appropriation that prohibited the Second Judicial District Attorney’s Office from spending any of its general appropriation on “rental of parking space.” Id. ¶ 10. The Court first considered the restriction itself, which the parties agreed would have affected only $4,000 of a $4,500,000 appropriation—less than 0.1% of the appropriation—and held that it violated separation-of-powers principles by intruding on the execu-tive function by “attempt[ing] to make detailed, min[u]scule, inconsequential executive management decisions.” Id. ¶ 11. The Court then rejected the petition-ers’ fallback argument that the veto was invalid because it distorted the Legisla-ture’s intent in violation of Sego:

The legislature may not artfully draft conditions or restrictions that would force the governor to veto an entire appropriation to a particular agency in order to



http://www.nmcompcomm.us/Advance Opinionsreach a limitation or condition he finds constitutionally offensive. If this line of reasoning were followed the governor would be left with the option of either vetoing the entire appropriation of $4,500,000 or accepting the re-striction. The restriction was not a proper restriction or condition and as such was subject to veto by the governor. The legislature left the governor no reasonable alternative. The veto was valid.

1988-NMSC-057, ¶ 15. Coll remains the only instance in which this Court has re-jected a challenge to a partial veto based, at least in part, on a refusal to validate “artful drafting” by the Legislature.{39} Upon close examination, we think Coll is of little use here. In 2014 the Legis-lature imposed no condition—minuscule or otherwise—upon its appropriations for judicial pay raises. Sections 8(A)(2) and 4(B) are stand-alone, unconditional, and separate appropriations, and as such must be vetoed in their entirety like any other appropriation of which the Governor disapproves in whole or in part.{40} With respect to Section 4(B) in par-ticular, the Legislature routinely includes funds in general appropriations acts, like the funds for the 5% raise, that are ear-marked for certain purposes but that are not identified in separate lines or items; rather, they are combined with other, similarly situated funds sharing a com-mon “object to which [the appropriation] is to be applied.” N.M. Const. art IV, § 30. The Governor provides no authority for the proposition that the Legislature must treat funds for judicial raises differently by separating them from the general object of the appropriation—personal services and employee benefits.{41} More importantly, reading Coll to prevent the Legislature from acting as it did in this case would lead to absurd results. Nothing in the New Mexico Con-stitution requires the Legislature to make appropriations easy to veto by identifying each appropriation in a separate line or item in an appropriations act. If that were Coll’s holding, general appropriations acts would necessarily become immense. They would be transformed into highly detailed documents that would have to identify the specific object of every dollar appropriated by the Legislature. That was clearly not Coll’s intended effect, and the New Mexico Constitution does not require anything like it. See Coll, 1988-NMSC-057,

¶ 11 (holding a provision of the 1988 ap-propriations act unconstitutional because the Legislature had “attempt[ed] to make detailed, min[u]scule, inconsequential executive management decisions” about how the district attorney’s office could spend a portion of its base budget).{42} To the extent that the Governor invites us to interpret the notion of “subtle drafting” to fit the circumstances of this case, we are unwilling to do so. The Governor has not provided a limiting principle to distinguish subtle drafting from drafting that is not-so-subtle, and we do not consider it wise to fashion one on our own. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“It is of no benefit either to the parties or to future litigants for this Court to promulgate case law based on our own speculation rather than the parties’ care-fully considered arguments.”). Outside of the facts of Coll, in which we refused to allow the Legislature to use Sego to shield an unconstitutional restriction from the Governor’s veto pen, we remain respectful of constitutional separation of powers and accordingly prefer to allow the legislative process to play out free from judicial in-terference, so long as the process is open and transparent. Cf. Martinez v. Jaramillo, 1974-NMSC-069, ¶ 9, 86 N.M. 506, 525 P.2d 866 (“The mischief to be prevented [by Article IV, Section 16 of the New Mexico Constitution] was hodge-podge or log-rolling legislation, surprise or fraud on the legislature, or not fairly apprising the people of the subjects of legislation so that they would have no opportunity to be heard on the subject.”).The appropriations process offers the best solution{43} In truth, the appropriations process is largely unregulated; our constitution has left it that way for over one hundred years. As we explained forty years ago in Sego,

The legislative power of the State of New Mexico is vested in the Legislature. Except for interest or other payments on the public debt, money shall be paid out of the treasury of the State only upon appropriations made by the Legislature, and every law making an appropria-tion shall distinctly specify the sum appropriated and the object to which it is to be applied. The supreme executive power of the State is vested in the Governor, whose principal function, inso-

far as legislatively enacted law is concerned, is to faithfully execute these laws. [She] does, however, have the power to exercise veto control over the enactments of the Legislature to the extent that this power or authority is vested in [her] by Art. IV, § 22, supra. As to bills appropriating money, [she] clearly has the power to veto a “part or parts” or “item or items” thereof.

1974-NMSC-059, ¶ 12 (internal citations omitted).{44} The New Mexico Constitution also provides the political and logistical framework within which the appropria-tions process takes place. The Legislature is tasked with passing a general appropria-tions act each year and with submitting it to the Governor for approval. See N.M. Const. art. IV, § 22. The Governor may, and often does, participate in and influ-ence the legislative process as the bill takes shape. See, e.g., NMSA 1978, § 6-3-21(A) (2004) (“The governor shall prepare the budget and submit it to the legislative finance committee and each member of the legislature not later than January 5 in even-numbered years and not later than January 10 in odd-numbered years.”). Direct, oftentimes frank discussions may take place. If a particular appropriation amounts to a “deal breaker” for the Gov-ernor, the Legislature then has to weigh the value of that particular appropriation against the likelihood of a gubernatorial veto and even the possibility of a special session. This is all part of the give and take of any legislative session, and it is where the competing interests of those two co-equal branches of state government are best played out.{45} But with a few exceptions that are not relevant here, see N.M. Const. art. IV, § 16, the act’s form and substance are left to the Legislature. Once the act is presented to the Governor, her role is a limited one. If an act is presented to her more than three days before the end of a legislative session, she may refuse to sign it, note her objections, and send it back to the Legislature. See N.M. Const. art. IV, § 22. In that event, the act cannot become law unless two-thirds of the members of the house and senate vote to override the Governor’s objections. See id. If the act is presented to the Governor during the last three days of a session, she may refuse to sign it, or she may “disapprove any part or parts, item or items” of the bill and sign the



http://www.nmcompcomm.us/Advance Opinionsremainder into law. Id. In the event that the Governor vetoes the entire appropriations act or an essential portion, she may call the Legislature back for a special session. See N.M. Const. art. IV, § 6.{46} Historically, this is a process in which the judicial branch has been reluc-tant to interfere, a “delicate constitutional balance between the executive and the legislative branches of government.” Coll, 1988-NMSC-057, ¶ 9 (quoting Colorado General Assembly v. Lamm, 704 P.2d 1371, 1377 (Colo. 1985) (en banc)). We will not speculate about the Legislature’s motive for choosing this particular method of providing the 5% raise. A clear effect of that choice, however, was to make the raise more challenging for the Governor to veto if she found it objectionable; she had to veto the entire appropriation. We are unable to find any legal basis to conclude that this amounted to legislative overreach, especially when the Governor had notice of the Legislature’s intent and when she

had other tools in the political process at her disposal. We reiterate that the New Mexico Constitution does not prescribe a particular method that the Legislature must follow when it appropriates funds. Accordingly, the Legislature remains free to use any of the methods that it has used in the past, or to create new ones, provided that the Governor receives sufficient notice to permit her to meaningfully exercise her partial-veto authority. See N.M. Const. art. IV, § 22.{47} Finally, we note the unusual context in which this case has arisen; to a great extent it is unlike any of our precedents. To our knowledge, the Legislature’s method of appropriating funds to increase judicial salaries was novel, as was the Governor’s attempt to eliminate both raises by veto-ing only one appropriation and leaving the other intact. With this ruling, we are upholding the valid exercise of the Governor’s partial veto authority, while at the same time we uphold the Legislature’s

broad authority to fashion general ap-propriations acts in its discretion, absent a specific prohibition in the New Mexico Constitution.CONCLUSION{48} The Governor’s veto of Section 8(A)(2) successfully “destroy[ed] the whole” of the 3% judicial pay increase. The veto had no effect on the 5% increase separately funded in Section 4(B).{49} IT IS SO ORDERED.

RICHARD C. BOSSON, Justice, Chief Justice, Sitting by Designation

PATRICIO M. SERNA, Justice, Retired, Sitting by Designation

A. JOSEPH ALARID, III, Judge, Retired, Sitting by Designation

CELIA F. CASTILLO, Judge, Retired, Sitting by Designation

JAMES A. HALL, Judge, Retired, Sitting by Designation



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ClassifiedPositions

13th Judicial District AttorneySenior Trial Attorney, Assistant Trial Attorney, Associate Trial AttorneyCibola, Sandoval, Valencia CountiesSenior Trial Attorney - This position requires substantial knowledge and experience in criminal prosecution, rules of criminal proce-dure 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 Tri-al 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 posi-tion 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.

Experienced AttorneyExperienced attorney sought to assist with Indian water rights litigation and related mat-ters 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 [email protected], (505) 726-4689.

Managing AttorneyOur 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 plan-ning, 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 plain-tiffs’ 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. Require-ments: 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

Trial LawyerGREAT 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, tenac-ity, and successful results at trial. Less experi-enced 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].

Associate AttorneyBusy law firm practicing in the areas of Family Law, Worker’s Compensation and Personal Injury seeking Associate Attorney to imme-diately join our growing firm. Attorney will primarily practice in the area of Family Law and will be responsible for legal analysis, rep-resentation, document preparation, media-tions and litigation. Salary will be consistent with experience. Please submit cover letter and resume to [email protected]. No phone calls.

Executive Director – NM Board of Bar ExaminersThe 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 admis-sions process. The position is in Albuquerque, NM. Managerial and administrative experi-ence in a legal setting involving multiple com-plex 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.

Alternative Dispute Resolution Statewide Program Manager PositionThe New Mexico Administrative Office of the Courts is recruiting for a full-time, Alterna-tive Dispute Resolution Statewide Program Manager position. Hiring salary is $58,506 to $69,476 Annually, DOE. Please visit the Job Opportunities area of our web page at www.nmcourts.gov for more information. Equal Opportunity Employer

Attorney – Reproductive Freedom FellowThe American Civil Liberties Union (ACLU) of New Mexico seeks a full-time Staff At-torney, based in Albuquerque. This position will be focused on expanding reproductive freedom in New Mexico as well as civil rights litigation. For the full position an-nouncement and how to apply: http://www.aclu-nm.org/job-announcement-attorney-reproductive-freedom-fellowship/2014/11/ Position open until filled.

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New Mexico Association of CountiesLitigation AttorneysNon-profit local governmental association with offices in Santa Fe and Albuquerque is seeking dynamic, energetic in-house litiga-tion attorneys for new legal bureau. Success-ful candidates shall have significant litiga-tion experience. Background in handling employment or civil rights matters a plus. Opportunity to have impact on structure and development of new in-house depart-ment. 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].

Lawyer-A PositionSanta FeThe 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 ex-perience 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 environmen-tal 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 profes-sional 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.

CLE Program ManagerState 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.

Senior Trial Prosecutor/Assistant District Attorney The 12th Judicial District Attorney is seeking a prosecutor for the Alamogordo and the Car-rizozo office. Experienced preferred, but will train the right candidate. Salary DOE. Please send resume and cover letter via email to [email protected] or [email protected]. If you have any questions, please con-tact Joan Whiteley, Office Manager, for more information at 575-437-3640. We are an EOE.

Eleventh Judicial District Attorney’s Office, Div II The McKinley County District Attorney’s Of-fice 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 experi-ence 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 environ-ment. 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] by 5:00 p.m. February 13, 2015.

Swaim & Finlayson, P.C.Swaim & Finlayson, P.C., a busy Estate Plan-ning firm in Albuquerque, is seeking an As-sociate Attorney with 3–7 years’ experience in Estate Planning, Taxation, or Business Law to join its team of highly skilled attorneys. Hav-ing an LLM in Tax or being a licensed CPA may substitute for relevant experience. Swaim & Finlayson, P.C. is a Martindale-Hubble A-V rated law firm with a substantial Estate Plan-ning, Taxation, and Business Transactions practice. The law firm operates cooperatively, meaning teamwork is paramount to its suc-cess. Associate Attorneys work alongside the firm’s Partners and support staff and also carry their own caseload. This position will provide the successful applicant with the opportunity to gain a wealth of practical experience and to work independently and directly with clients while benefiting from the mentorship and experience of the firm’s Partners. Swaim & Finlayson provides a positive, supportive work environment for its attorneys and support staff. The firm offers a very competitive compensation package, including excellent benefits and partnership opportunities for exceptional associates. Interested applicants should submit their résumé at estateplannersnm.com.

Tribal Water Law Attorney Wanted The Jicarilla Apache Nation is currently so-liciting 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 [email protected]

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

Associate AttorneyWhitener Law Firm, P.A. is currently seeking a full-time associate attorney to handle Personal Injury cases. Candidates must be highly moti-vated, client oriented and will enjoy working in a fast-paced environment. Candidates must be licensed to practice in the state of New Mex-ico. Salary competitive and commensurate to experience and qualifications. Please send resume to Nichole Henry, Whitener Law Firm, P.A., 4110 Cutler Avenue, N.E., Albuquerque, NM 87110, fax to 505-242-3322 or e-mail to [email protected]

Water & Environmental LawLaw & Resource Planning Associates, P.C., (“LRPA”), an AV-rated law firm, is accepting resumes for an experienced, personable At-torney with strong academic and technical credentials to work primarily in the area of natural resource law. Competitive salary commensurate with experience. Excellent benefits package. All inquiries kept confi-dential. Please submit a cover letter, resume, transcript(s), and writing samples to Hiring Coordinator, LRPA, P.C., P.O. Box 27209 Alb., NM 87125 E-mail responses may be submitted to J. Brumfield at [email protected]

Associate Attorney PositionHoffman Kelley Lopez, insurance defense firm with emphasis on Workers' Compensa-tion, is seeking an associate attorney to join our team. Applicant must be a graduate of an accredited law school and licensed in NM. Ideal candidate will be a highly motivated self-starter that possesses excellent oral and written communication skills, strong ana-lytical ability and can work independently. Deposition and/or courtroom experience is a plus. In state travel is required. Benefits available including health, dental and 401(k). Email resume, writing sample and references to [email protected] or fax to Hir-ing Partner at 800-787-9748.

Family Law AttorneyGrowing Albuquerque divorce firm with a statewide practice needs an attorney who sincerely wants to practice family law regu-larly appear in court. Send resume and salary requirement to [email protected].



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











Office Space

Taos Conference and Office SpaceTaos conference and office space available for depositions and mediations. Call Robyn 575-758-1225

Professional Office space sublet in Santa Fe:Shared central services, including reception and conference room. Rent $700 / mo. Con-tact Tom Simon 505-670-3007.Las Cruces Paralegal

Miller Stratvert PA is seeking a highly mo-tivated 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 environ-ment. E-mail resume to [email protected] or call 505-842-1950.

ParalegalBarudin Law Firm has an immediate opening for an experienced paralegal with at least 8 years of litigation experience. We are an up-town plaintiff’s AV rated firm. Great benefits, very interesting cases, and a supportive and fun working environment. Must have expe-rience with Odyssey, CM/ECF and be a true self starter. Fax a resume and a list of refer-ences to 505-271-1888, or email to [email protected].

Attention Attorneys: 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.

Miscellaneous

Searching for WillWILL for ROBERT E. RENDON in Santa Fe county born 1939. Will was created around 2001-2005. Contact Krystal Chavez 505-930-2685.

Legal AssistantChapman and Charlebois, a civil litigation defense firm, is seeking a legal assistant with 5+ years experience in civil litigation. Extensive experience with practice manage-ment, calendaring, word processing, state and federal court filings required. Must be highly organized and detail oriented with good customer service and multi-tasking skills. Position needs include support for multiple attorneys producing a high volume of work. Email letter of interest with three professional references, salary requirements and resume to: [email protected].

Contract Legal Secretary or ParalegalFamily Law practice in Santa Fe seeking contract PT legal secretary or paralegal. Self-driven, strong work ethic, and positive attitude required. Potential to become full time with benefits. Email resume and salary history to: [email protected].

Attorneys Needed1 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 cli-ents. 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 es-sential 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 Gradu-ates Recently Passing or Taking February Bar Exam also Encouraged to Apply with possible transition to Associate Attorney

Office of the State Engineer/Interstate Stream Commission (OSE/ISC) State of New MexicoThe Litigation & Adjudication Program seeks two New Mexico licensed attorneys: Lawyer Advanced to work in the Administrative Litigation Unit to represent the Water Rights Division in administrative hearings and the State Engineer in appeals, enforcement ac-tions, and other water rights administration matters. The positions are located in Santa Fe. Qualifications for Lawyer A: Juris Doctorate from an accredited law school and 5 years of relevant exp. Job ID #: Lawyer – A #2015-00206. Must apply on line at http://www.spo.state.nm.us/ from 1/22/2015 to 2/5/2015. The OSE/ISC is an Equal Opportunity Employer

Associate Attorney PositionRiley, Shane & Keller, P.A., an Albuquerque AV-rated defense firm, seeks an Associate to help handle our increasing case load. We are seeking a person with one to five years expe-rience. Candidate should have a strong aca-demic 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]

Legal Secretary/AssistantCivil litigation firm seeking Legal Secretary/Assistant with minimum 3- 5 years’ experi-ence, including knowledge of local court rules and filing procedures. Excellent clerical, orga-nizational, computer & word processing skills required. Fast-paced, friendly environment. Benefits. If you are highly skilled, pay atten-tion to detail & enjoy working with a team, email resume to: [email protected]

ParalegalLitigation paralegal with background in large volume document control/manage-ment, trial experience, and familiar with use of computerized databases. This is an opportunity for a highly motivated, task & detail-oriented professional to work for an established, well-respected downtown law firm. Competitive benefits. Email resume to: [email protected]

Well Established Law Office for LeaseLaw Office established in 1993 for lease in Rio Rancho, 1 block north of Intel. Ap-proximately 1500 sf with 4 individual offices, staff work stations, conference, file and copy rooms, kitchen, restroom. Available with or without furnishings. Practitioner is retiring. Call Cathi at 505 891-3636.

Paralegal PositionParalegal position, part-time, 25-30hrs/week. Need smart person to interview potential clients, file court pleadings electronically, and help with trial preparation. Fluency in Spanish a plus. Must be computer and Internet savvy. Not for novices. Send resume w/ references via email to [email protected].

Premier Office Spaceavailable at 201 Third Street NW, Suite 500 – full service offices and cubicles complete with reception, VoIP phones and phone line, high-speed internet, free WiFi and confer-ence room use. Amenities include covered parking and Starbucks coffee service. Call Sandee at 505.999.1726.

Experienced AttorneyAlbuquerque 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 initia-tive and work independently. If interested, please send a cover letter, resume, and salary requirements to [email protected].





http://www.spo






Adve

rtising

sales

now op

en fo

r the

2015

-201

6

Benc

h & Ba

r Dire

ctory

Adve

rtising

spac

e res

ervati

on de

adlin

e:

Mar

ch 3

1, 2

015

To make your space reservation,please contact Marcia Ulibarri

505-797-6058 • [email protected]


Open House

• Come and enjoy n

etworki

ng with

your p

eers

and m

embers of N

AIOP-Commercial

Real Esta

te Development Asso

ciation.

• Bring yo

ur busin

ess ca

rd and drop off at

the Busin

ess Card

Exchan

ge Table.

• Tour o

ur Digita

l Prin

t Center a

nd our

Multi-Media A

uditoriu

m.

• Enjoy appetiz

ers an

d refre

shments.

• Give-a-ways!

➤ 20

15 Annual

NAIOP Lu

nch Tick

et

($450 va

lue).

➤ Fre

e Business

packa

ge.

➤ Fre

e meetin

g room re

ntal.

Wednesday, Feb. 184-6 p.m.State Bar Center5121 Masthead NE (Journal Center), Albuquerque

For more information or to RSVP, contact: Marcia Ulibarri, 505.797.6058 or [email protected]

Networking Ev

ent

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February 4, 2015 • Volume 54, No. 5

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