November 4, 2015 • Volume 54, No. 44 · November 4, 2015 • Volume 54, No. 44. Table of Contents...

Pepper Palette, by Valerie Fladager (see page 3)

Inside This Issue

November 4, 2015 • Volume 54, No. 44

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

Court of Appeals: Announcement of Vacancy ................................... 4

Board of Bar Commissioners: Sept. 30 Meeting Summary ................................... 5

Leonard Sanchez to Receive Business Lawyer of the Year Award on Nov. 6 .................................. 6

“Never a Dull Moment: Challenges of a City Police Chief” with Gorden Eden ................. 6

Volunteers Needed at Veterans Legal Clinic on Nov. 10 ......................... 6

Second Annual Senior Lawyers Division Scholarship Reception............................................ 9

A Special Day—Fall Swearing-in Ceremony ...... 10

Clerk’s Certificates ................................................ 15

Rules/Orders

The Supreme Court of New Mexico Announces 2015 Year-End Rule Amendments .................................................... 18

From the New Mexico Supreme Court

2015-NMSC-024, No. 33,775: Hem v. Toyota Motor Corp. .......................... 25

2015-NMSC-025, No. 34,013: State ex rel Foy v. Austin Capital Management, LTD ................29

SPECIAL INSERT

Annual Meeting

Coverage

2 Bar Bulletin - November 4, 2015 - Volume 54, No. 44

November

CENTER FOR LEGAL EDUCATION

Time is running out! State Bar Center • Preliminary schedule. Visit www.nmbar.org for more information.

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

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9 11 13138

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CLE from home!

Self-study on-demand

courses available.

Visit nmbar.org for

more information.

On-Demand Happy Thanksgiving!

Video Replays

Video Replays

Video Replays

Indian Law Section: The

Future of Cross-commissioning

2.5 G, 1.0 EP Live and Webcast

Representing Technology Start-ups6.5 G, 1.0 EPLive and Webcast

ADR Institute4.5 G, 1.5 EPLive and Webcast

ADR Institute4.5 G, 1.5 EPLive and Webcast

2015 New Mexico Probate Institute

6.2 G, 1.0 EPLive and Webcast

The New Lawyer— Rethinking Legal Services in the 21st Centuryfeaturing Mark E. Lassiter, founder of The Lassiter Law Firm4.5 G, 1.5 EPLive and WebcastSee page 4

Have you earned all of your required CLE credit for 2015?

32015 Real Property Institute5.0 G, 1.0 EP The Trial Variety:

Juries, Experts and Litigation6.0 GCo-sponsor: Paralegal Division

4Reciprocity in New Mexico4.5 G, 2.5 EP1

December

Teleseminars available all month. Visit nmbar.org for more information.

Looking for

something else?

Visit nmbar.org

for more options.

18TeleseminarTeleseminar

Teleseminar

http://www.nmbar.org

Bar Bulletin - November 4, 2015 - Volume 54, No. 44 3

Notices ................................................................................................................................................................4Legal Education Calendar .............................................................................................................................7A Special Day—Fall Swearing-in Ceremony ........................................................................................... 10Writs of Certiorari .......................................................................................................................................... 12Court of Appeals Opinions List ................................................................................................................. 14Clerk’s Certificates ......................................................................................................................................... 15Recent Rule-Making Activity ..................................................................................................................... 17Rules/Orders

Supreme Court of New Mexico Announces 2015 Year-End Rule Amendments .......... 18

OpinionsFrom the New Mexico Supreme Court

2015-NMSC-024, No. 33,775: Hem v. Toyota Motor Corp. .................................................... 25

2015-NMSC-025, No. 34,013: State ex rel Foy v. Austin Capital Management, LTD .............................................................. 29

Advertising ...................................................................................................................................................... 37

State Bar Workshops November

4 Divorce Options Workshop 6 p.m., State Bar Center, Albuquerque

4 Civil Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

4 Common Legal Issues for Seniors Presentation: 10–11:15 a.m. Free Consultations: noon–2 p.m. Bosque Farms Senior Center, Bosque Farms

6 Civil Legal Fair 10 a.m.–1 p.m., First Judicial District Court, First Floor Jury Room, Santa Fe

December

2 Divorce Options Workshop 6 p.m., State Bar Center, Albuquerque

2 Civil Legal Fair 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room, Albuquerque

MeetingsNovember

4 Employment and Labor Law Section BOD, Noon, State Bar Center

6 Criminal Law Section BOD, Noon, Kelley & Boone, Albuquerque

10 Taxation Section BOD, 11 a.m., teleconference

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

12 Elder Law Section BOD, Noon, State Bar Center

13 Animal Law Section BOD, Noon, State Bar Center

16 Solo and Small Firm Section BOD, 11:30 a.m., State Bar Center

18 Children’s Law Section BOD, Noon, Juvenile Justice Center

18 Committee on Diversity in the Legal Profession, noon, State Bar Center

Table of Contents

Officers, Board of Bar Commissioners Mary Martha Chicoski, President J. Brent Moore, President-Elect Scotty A. Holloman, Vice President Dustin K. Hunter, Secretary-Treasurer Erika E. Anderson, Immediate Past President

Board of EditorsMaureen S. Moore, Chair Curtis HayesJamshid Askar Bruce HerrNicole L. Banks Andrew SefzikAlex Cotoia Mark StandridgeKristin J. Dalton Carolyn Wolf

State Bar Staff Executive Director Joe Conte Communications Coordinator Evann Kleinschmidt 505-797-6087 • [email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri 505-797-6058 • [email protected] Digital Print Center Manager Brian Sanchez Assistant Michael Rizzo

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

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

November 4, 2015, Vol. 54, No. 44

Cover Artist: Valerie Fladager photographs a plethora of images that catch her interest and each image selected represents a series of multitude. The best are chosen for their striking design, light and color which she then interprets with digital imaging, pastels or watercolor. Her work has been sold through several galleries and arts and crafts venues. She has taught art and science and is a member of the National League of American Pen Women. More work can be viewed at www.valeriefladager.com/. She can also be contacted by email at [email protected]

mailto:[email protected]






http://www.valeriefladager.com/

http://www.valeriefladager.com/



NoticesProfessionalism Tipcourt News

Supreme CourtProposed Amendments to the Rules Governing Pretrial Release Following the decision in State v. Brown, 2014-NMSC-038, 338 P.3d 1276, the New Mexico Supreme Court created the Ad Hoc Pretrial Release Committee to study existing pretrial release law and practice and make recommendations to the Court regarding necessary changes to improve pretrial release procedures in New Mexico. This broad-based committee, with representation from the criminal defense bar, prosecution, judges, the bail industry, jails and detention centers and the Legislature, has made a number of recommendations, including amendments to Rule 5-401 NMRA, governing pretrial decision-making in the district courts. Following the publication period and any resulting changes to Rule 5-401, the committee expects to recommend cor-responding revisions to Rules 6 401, 7 401, and 8 401 NMRA, which govern pretrial procedures in the magistrate, metropolitan and municipal courts. The Court will not make its final decisions nor take action on these recom-mended revisions until after publication for comment and full review by both the committee and the Court of all resulting input, which is an important aspect of the rule-making process. View the full text of the proposed amendments and instruc-tions for submitting comments in the Oct. 21 Bar Bulletin (Vol. 54, No. 42).

Vacancy on the Civil Legal Services Commission The Supreme Court is seeking applica-tions from those interested in an appoint-ment to serve on the New Mexico Civil Legal Services Commission. Applicants must have experience with civil legal matters affecting low-income persons. See NMSA 1978, § 34-14-1(A) (2001). The Commission is responsible for soliciting proposals for disbursements from the civil legal services fund and for entering into contracts for expenditures from the civil legal services fund for the purpose of improving civil legal services for low income persons See § 34-14-1(D). Ap-plicants should submit a résumé and letter of interest to Chief Clerk Joey D. Moya, by mail to PO Box 848, Santa Fe, NM 87504-0848, by fax to 505-827-4837, or by email to [email protected]. The application deadline is Nov. 13.

With respect to parties, lawyers, jurors, and witnesses:

I will do my best to ensure that court personnel act civilly and professionally.

New Mexico Commission on Access to JusticeNovember Meeting Notice The next meeting of the New Mexico Commission on Access to Justice is noon–4 p.m., Nov. 6, at the State Bar Center. Interested parties from the private bar and the public are welcome to attend. More information about the Commission is available www.nmbar.org > for Members > Commissions.

New Mexico Compilation Commission Free CLE Opportunity The New Mexico Compilation Com-mission presents “Get It Right: Use Official Laws!” (2.0 G) from 9:30–11:50 a.m. on Dec. 15, at 4355 Center Place, Santa Fe. The free CLE will feature Justice Edward L. Chávez of the New Mexico Supreme Court. Attendees will learn the perils of free services and hear demonstrative ex-amples as to why and how the official New Mexico laws support and assist lawyers, judges, law clerks and paralegals in the delivery of legal services in New Mexico. Register by calling 505-827-4821.

Court of AppealsAnnouncement of Vacancy A vacancy on the Court of Appeals will exist as of Jan. 1, 2016, due to the retirement of Hon. Cynthia Fry, effective Dec. 31. The chambers for this position will be in Santa Fe. Inquiries regarding the details or as-signment of this judicial vacancy should be directed to the administrator of the Court. Alfred Mathewson, chair of the Appellate Court Judicial Nominating Commission, in-vites applications for this position from law-yers who meet the statutory qualifications in Article VI, Section 28 of the New Mexico Constitution. Applications may be obtained from the Judicial Selection website: www.lawschool.unm.edu/judsel/application.php. The deadline for applications is 5 p.m., Jan. 19, 2016. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the Office of the Secretary of State. The Appellate Court Judicial Nominating Commission will

meet beginning at 9 a.m., Jan. 27, 2016, to interview applicants for the position at the Supreme Court Building in Santa Fe. The Commission meeting is open to the public and those who want to comment on any of the candidates will have an opportunity to be heard.

Bernalillo County Metropolitan Court Open House: ‘DWI Recovery Court—A New Approach’ Members of the legal community and the public are invited to attend an open house to introduce the newly named DWI Recovery Court and the Urban Native American Healing to Wellness Court. The open house will be from 11 a.m.–1 p.m., Nov. 13, at the Bernalillo County Metropolitan Court, Second Floor Jury Room. Learn what the programs have to offer, how they serve the community’s needs and how they are in-step with the best practices of the National Association of Drug Court Professionals. Lunch will be provided. For more information, contact Camille Cordova at 505-841-9897.

U.S. District Court for the District of New MexicoCourt Closure The U.S. District Court for the District of New Mexico will be closed Nov. 26–27 for the Thanksgiving holiday. Court will resume on Monday, Nov. 30. After-hours access to CM/ECF will remain available as regularly scheduled. Stay current with the U.S. District Court for the District of New Mexico by visiting www.nmd.uscourts.gov.

state bar NewsAttorney Support Groups• Nov. 9, 5:30 p.m. UNM School of Law, 1117 Stanford NE,

Albuquerque, King Room in the Law Library. To increase access, teleconfer-ence participation is now available. Dial 1-866-640-4044 and enter code 7976003#.

• Nov. 16, 7:30 a.m. First United Methodist Church, 4th



http://www.lawschool.unm.edu/judsel/application.php

http://www.nmd.uscourts.gov


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

• Dec. 7, 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 Section‘Pet Trusts’ Animal Talk in November Mary Lane Leslie will present “Forms and Advice on Including Pet Trusts in Your Client’s Estate Planning” at the 11:30 a.m. Animal Talk on Nov. 5 at the State Bar Center. Leslie, of Taos, has been practicing law for 36 years, with her primary practice in estate planning and probate. She is a co-founder of Watch Over Our Friends, Inc©. (aka “W.O.O.F.©”), a New Mexico 501(c)(3). Cookies and refreshments will be provided. To R.S.V.P., email Evann Kleinschmidt at [email protected].

Board of Bar CommissionersMeeting Summary The Board of Bar Commissioners met on Sept. 30 at The Broadmoor in Colorado Springs. The minutes in their entirety will be available on the State Bar’s website following approval by the Board at the Dec. 9 meeting. Action taken at the meeting was as follows: • Approved the July 10 meeting minutes

as submitted;• Accepted the August 2015 financials

and executive summaries;• Approved the 2016 State Bar and New

Mexico State Bar Foundation budgets;• Discussed a proposal regarding selling the

NMSBF’s ownership in the Bar Center to the State Bar and will research further;

• Discussed a proposal for the future of the NMSBF and approved proceeding with hiring a development specialist, establishing a steering/fund raising committee, and developing a marketing and fund raising plan;

• Approved writing off uncollectible A/R as bad debt in the amount of $9,300;

• Approved the proposal from All American to replace the foam on the auditorium roof with a 20-year war-ranty in the amount of $16,247;

• Received a request for a grant for Civil Legal Services Programs to hire an architect/project manager for their co-location efforts and denied the request;

• Received a request from the UNM

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 > for Members > Lawyers/Judges Assistance

School fo Law for a Distinguished Achievement Award sponsorship and approved a sponsorship in the amount of $500;

• Received a report from the Bylaws and Policies Committee and approved an amendment to the Family Law Section bylaws to allow the chair to serve an additional term; approved an amend-ment to the Immigration Law Section bylaws to change the term of the elected board positions from three years to two years; provided 30 days’ notice of amendments to the State Bar bylaws to eliminate the Vice President position, which will be voted on at the December meeting, and which will also require changes to Rules 24-101 and 17A-005 to replace the Vice President with the Secretary-Treasurer; and tabled the creation of a policy for the judiciary’s attendance at the annual meeting;

• Pursuant to Article IX, Section 9.4 of the State Bar Bylaws, sections and com-mittees scheduled for sunset in a given year must submit a petition to continue the section/committee by Sept. 1; the following were randomly selected for sunset this year and were approved for continuance: Ethics Advisory Commit-tee, Criminal Law Section, Elder Law Section, Family Law Section, Public Law Section and Solo and Small Firm Section;

• Elected the following officers for 2016: Gerald G. Dixon as secretary-treasurer, Dustin K. Hunter as vice president and Scotty A. Holloman as president-elect;

• Approved holding a board retreat in conjunction with the February Board meeting;

• Provided the 2016 board meeting schedule as follows: Feb. 26, May 6, July 28, Sept. 30 and Dec. 14;

• Reviewed the topline results of the CLE Survey prepared by Research & Polling, Inc.; and

• Received an update on the Legal Incu-bator Project; the steering committee is starting to fund raise and will be hiring a director next year.

Seeking Nominees for Access to Justice Commission The Board of Bar Commissioners will make one appointment to the New Mexico Access to Justice Commission for a three-year term. Anyone who wants to serve on the commission should send a letter of interest and brief résumé by Nov. 30 to Executive Director Joe Conte, State Bar of New Mexico, PO Box 92860, Albuquerque,

Digital Print CenterWhen First Impressions Matter

• Business Cards • Letterhead• Envelopes • Brochures• Announcements • Invitations• CLE Materials • And much more

We provide quality, full-color printing.

Ask about your member discount.

Contact Marcia Ulibarri, 505-797-6058

or [email protected].

NM 87199-2860; fax to 828-3765; or email to [email protected].

Board of EditorsFour Open Positions The Board of Editors has four open posi-tions beginning Jan. 1, 2016. The Board of Editors meets at least four times a year and by email, reviewing articles submitted to the weekly Bar Bulletin and the quarterly New Mexico Lawyer. This volunteer board reviews submissions for suitability, edits for legal content and works with authors as needed to develop the topics or address other concerns. Members of the Board of Editors should preferable have some expe-rience in journalism or legal publications. Members outside of Albuquerque and a non-lawyer member are especially needed.






Those interested in being considered for a two-year term should send a letter of interest and résumé to Evann Kleinschmidt, [email protected]. More information about the Board of Editors can be found in the Sept. 30 Bar Bulletin (Vol. 54, No. 39).

Business Law SectionLeonard Sanchez to Receive Business Lawyer of the Year Award The Business Law Section Board of Directors has chosen Leonard D. Sanchez to receive its annual Lawyer of the Year Award. Sanchez was selected based on his professional experience and many years of dedication to the Business Law Section and the New Mexico legal community. The award will be presented at 5 p.m., Nov. 6, at the State Bar Center, after the Section’s CLE program “Representing Technology Start-ups in New Mexico: Navigating the Intellectual Property and Business Law Challenges” (co-sponsored with the Intellectual Property Law Section).

Employment and Labor Law SectionMixer in Roswell The Employment and Labor Law Section is hosting a mixer from 4:30–6 p.m. on Nov. 12 at The Liberty, 312 N. Virginia, in Ro-swell. Non-section members are welcome.

Indian Law SectionNominations Open for Achievement Award The Indian Law Section announces its third annual Achievement Award to recog-nize the accomplishments to its members who have made important contributions to the profession and to the community. The awardee will be announced at the Indian Law Section’s mixer in Santa Fe on Nov. 19, and will be profiled in the Indian Law Section’s annual newsletter. Any member of the Section may submit a nomination to Chris Cantrell at [email protected] by Nov. 11. Nominees must be a member of the Indian Law Section. The nominator must explain in one page or less the nature of the nominee’s extraordinary achievements in Indian law and the nomi-nee’s contributions to the community.

Solo and Small Firm Section‘Challenges of a City Police Chief’ with Gorden Eden As part of its monthly luncheon and speaker series, the Solo and Small Firm

Section presents “Never a Dull Moment: Challenges of a City Police Chief ” with Gorden Eden, chief of police, Albuquer-que Police Department, at noon, Nov. 16, at the State Bar Center in Albuquerque. Chief Eden will address APD recruitment, discipline, unions and current events. All members of the bench, bar and legal com-munity are invited to the event. Lunch is provided to those who R.S.V.P. to Evann Kleinschmidt at [email protected]. For a list of other speakers, scheduled into April 2016, visit www.nmbar.org > About Us > Sections > Solo and Small Firm.

Young Lawyers DivisionVolunteers Needed at Veterans Legal Clinic on Nov. 10 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 is required. Volunteers can give advice and counsel in their preferred practice area(s). The next clinic is Nov. 10. Those who are interested in volunteering or have questions should contact Keith Mier at [email protected] or 505-883-3395.

uNmLaw LibraryHours Through Dec. 12Building & Circulation Monday–Thursday 8 a.m.–8 p.m. Friday 8 a.m.–6 p.m. Saturday 10 a.m.–6 p.m. Sunday Noon–8 p.m.Reference Monday–Friday 9 a.m.–6 p.m. Saturday–Sunday ClosedClosures Thanksgiving holiday: Nov. 26–27

New Mexico Law ReviewSeeking Submissions The editorial board of the New Mexico Law Review is soliciting articles on New Mexico law, written by practitioners, scholars, policy makers or other subject matter experts. Paper proposals may discuss any legal topic relevant to New Mexico. Interested authors should

submit an abstract of no more than 1,000 words or a completed manuscript to [email protected] by Nov. 15. The editorial board will make publication offers based on a review of submitted abstracts and manuscripts. All inquiries should be directed to [email protected].

other barsFirst Judicial District Bar AssociationNovember Luncheon features Judge Jennifer L. Attrep At the First Judicial District Court’s next meeting and luncheon, Judge Jennifer L. Attrep will speak about her transition to the bench, her docket and First Judicial District news and will answer questions. The luncheon will bee noon–1 p.m., Nov. 16, at the Santa Fe Hilton. Attendance is $15 and includes a buffet lunch. For more information or to R.S.V.P., contact Lucas Conley at [email protected] or 505-986-2657.

New Mexico Black Lawyers Association‘Section 1983 and Bivens Litigation: An Overview’ CLE The New Mexico Black Lawyers As-sociation presents its annual CLE “Section 1983 and Bivens Litigation: An Overview” (5.0 G, 1.0 EP). The program will be 8 a.m.–4:30 p.m., Nov. 20, at the State Bar Center in Albuquerque. Tuition is only $199. Register online at www.newmexico blacklawyersassociation.org. Deadline to request a refund is Nov. 6. Purchase orders are welcome; call 505-450-1032. For more information, email [email protected].

New Mexico Trial Lawyers’ FoundationCLE on ‘Rules Round-Up and More’ The New Mexico Trial Lawyers’ Foun-dation presents “New Mexico Rules Round-Up and More” (4.5 G, 2.0 EP) on Nov. 13 at the Crowne Plaza Hotel in Albu-querque. Topics include new federal rules of civil procedure, how to get the most out of a witness program, a judges and lawyers panel and more. For more information or to register, call 505-243-6003 or visit www.nmtla.org.

continued on page 9







http://www.newmexico

http://www.nmtla.org



Legal EducationNovember

4 2015 Health Law Symposium—The State of Medicaid in New Mexico: Fraud/Abuse, Contractual and Legislative Concerns

4.5 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

4 Estate & Income Tax Planning Issues in Divorce

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

5 The Future of Cross-commissioning: What Every Tribal, State and County Lawyer Should Consider Post Loya v. Gutierrez


5 2015 Religion in the Workplace: Discrimination & Accommodation Update


6 Representing Technology Start-ups in New Mexico: Navigating the Intellectual Property and Business Law Challenges


6 Ethics & Tribunals: Communicating With the Courts & Government Agencies

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

6 Section 1983 and Bivens Litigation: An Overview

5.0 G, 1.0 EP Albuquerque New Mexico Black Lawyers

Association 505-450-1032 www.newmexicoblacklawyers

association.org

9, 10, 11, 12 The Competitive Edge: Law Practice Risk Management

3.0 EP (each day) Albuquerque, Santa Fe, Roswell,

Las Cruces (respectively with dates above)

Health Agencies of the West 714-769-3020

10 Internet Investigative/Legal Research on a Budget and Legal Tech Tips (2015)

6.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

10 More Reasons to Be Skeptical of Expert Witnesses (Part VI)

5.0 G, 1.5 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

10 2015 Land Use Law in New Mexico 5.0 G,1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

10–11 Advanced Planning for Like-Kind Exchanges of Real Estate, Parts 1–2


12 Legal Services in the 21st Century: Preparing for the Bumpy Road Ahead

5.5 G 1.5 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

12 26th Annual Appellate Practice Institute


12 2015 Tax Symposium 7.0 G Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

12 2015 Ethicspalooza: The Ethics of Social Media Use

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

12 2015 Ethicspalooza: Civility and Professionalism


12 Settlement Agreements in Estate & Probate Disputes


13 ADR Annual Institute 3.0 G, 3.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org







http://www.newmexicoblacklawyers













Legal Education www.nmbar.org

13 New Mexico Rules Round-Up and More Seminar

4.5 G, 2.0 EP Albuquerque New Mexico Trial Lawyers’

Foundation 505-243-6003 www.nmtla.org

17 2015 New Mexico Probate Institute 6.2 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

17 Role of Trust Protectors & Trust Advisers in Estate Planning


18 Default and Remedies Provisions in Commercial Leases

1.0 G Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

18 Choice Entity for Nonprofits & Obtaining Tax Exempt Status


19 The New Lawyer—Rethinking Legal Services in the 21st Century


19 Preferred Returns, Preferences & Anti-Dilution Mechanisms in Business & Real Estate


20 Ethics, Remote Networks, The Cloud, Smart Phones and Working From Anywhere


24 Employment and Labor Law Institute


24 Representing Technology Start-ups in New Mexico: Navigating the Intellectual Property and Business Law Challenges


November

24 Legal Writing—From Fiction to Fact (Full Day)


24 2015 Ethicspalooza: All Those Fees 1.0 EP Video Replay Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

24 Ethicspalooza: Proper Trust Accounting


30 Estate Planning for Digital Assets 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

December1 Reciprocity in New Mexico 4.5 G, 2.5 EP Live Seminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

1 Ethics in Claims and Settlements 1.0 EP National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

2 Drafting Trust Distribution Clauses: Health, Education & Maintenance


3 2015 Real Property Institute 5.0 G, 1.0 EP Live Seminar and Webcast Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

3 Tax Traps in Business Formations 1.0 G National Teleseminar Center for Legal Education of NMSBF 505-797-6020 www.nmbar.org

3–4 Santa Fe Neighborhood Law Center Law And Policy For Neighborhoods Conference

10.0 G, 2.0 EP Santa Fe Convention Center Neighborhood Law Center www.sfnlc.com





















http://www.sfnlc.com


New Mexico Women’s Bar Association Openings on Board of Directors Elections for two-year terms, begin-ning January 2016, for the Women’s Bar Association will be held in November. The Board invites interested members of the NMWBA to send a short letter of interest and a résumé to Secretary Barbara Koenig at [email protected] by Nov. 4. Board members are expected to attend an overnight retreat (Jan. 23–24, 2016), bimonthly meetings (in person or by phone), to actively participate on

one or more committees and to support the events sponsored by NMWBA. The New Mexico Women’s Bar does not dis-criminate on the basis of sex or gender and encourages all licensed attorneys to become members and apply to be on the Board. For more information about NMWBA or to become a member, visit www.nmbar.org > for Members > Bars and Legal Groups > Women’s Bar.

other NewsEqual Access to JusticeFree Ethics CLE Opportunity Equal Access to Justice and the Albu-querque Bar Association present a free

Three* $2,500 scholarships will be awarded to UNM School of Law third-year students, in memory of attorneys who have died in the past 12 months. Families of the deceased attorneys will be recognized. The Senior Lawyers Division invites all State Bar members to attend. UNM

School of Law Deans, faculty, staff and students are encouraged to save the date.

R.S.V.P. to Heather Kleinschmidt, [email protected].

Second Annual Senior Lawyers Division

Attorney Memorial Scholarship Presentation

and Reception

Thursday, Nov. 19 • 5-7 p.m.State Bar Center

SENIOR LAWYERS DIVISION

*A third scholarship has been made available due to the generosity of the family of J.W. Neal.

continued from page 6

To be included in the Nov. 18 issue, all notices and editorial content must be submitted by Friday, Nov. 6.

Submit content to [email protected].

Accelerated Bar Bulletin Holiday Deadlines

CLE “Ethics and Professional Responsibil-ity” (2.0 EP) from 8:30–10:30 a.m., Nov. 13, at the Crowne Plaza Albuquerque. To register, email [email protected]







A Special Day—Fall Swearing-in Ceremony

“Today is and will continue to be a special day,” remarked Howard Thomas, chair of the New Mexico Board of Bar Examiners, to the many excited faces in the crowd of the Sept. 22 Swearing-in Ceremony at the Kiva Auditorium in Albuquerque. Of the 121 new lawyers to be that passed the July Bar Exam, many gathered with their family, friends and colleagues to hear words of wisdom from leaders of the bench and bar. Along with State Bar President Martha Chicoski, Young Lawyers Division Chair Ken Stalter, New Mexico attorney and American Bar Association Board of Governors Secretary Mary Torres, Thomas welcomed the soon-to-be lawyers to the New Mexico legal community.

Applicant Dynette Cordova with niece Sofia; Dynette’s attorney brother Darren moved for her admittance

New attorney Salazar with movant Cruz

Group signing the paperwork

Supreme Court justices

Text by Evann Kleinschmidt; Photos by D.D. Wolohan


Next, Thomas, along with other members of the Board of Bar Examiners, led the reading of the roll of applicants to be admitted and recognize special movants to speak on behalf of the some new admittees. Movants, including mentors, friends, siblings and parents, cited integrity and dedication to the community as the top reasons why these new attorneys should be admitted.

Following the oath of attorneys, administered by Joey Moya, clerk of the Supreme Court, the five justices gave their best advice to the new lawyers. Justice Charles W. Daniels expressed appreciation for the family and friends of the new admittees who have been an important support system. Justice Edward L. Chávez encouraged them to treat every assignment and client they are entrusted with as though it is significant. Justice Richard C. Bosson, who retired at the end of October, reflected on the late Justice Pamela B. Minzner. She was the first woman to serve as chief justice of the New Mexico Supreme Court and Justice Bosson noted that she can still serve as an inspiration for young legal minds to this day. After appealing to the new admittees to seek out much needed pro bono opportunities, Justice Petra Jimenez Maes lightheartedly reminded them to always wear comfortable shoes.

Taking the oath

Justice Richard C. Bosson with Mary Torres

Former Board of Bar Examiners Executive Director Carol Skiba with State Bar President Martha Chicoski

Signing the Roll of Attorneys

Finally Chief Justice Barbra J. Vigil reminded everyone that a “good reputation is invaluable” especially in a legal community as small as New Mexico’s. Before concluding the ceremony and welcoming the new admittees to the honorable profession of the law, she asked them to be hard working and diligent, be open to changing directions and to always strive for gracious professionalism.


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. 35,562 Scott v. New COA 34,556 10/16/15No. 33,979 State v. Suskiewich COA 33,979 10/16/15No. 35,559 State v. Shelby COA 34,682 10/15/15No. 35,558 State v. Hernandez COA 33,525 10/13/15No. 35,555 Flores-Soto v. Wrigley 12-501 10/09/15No. 35,554 Rivers v. Heredia 12-501 10/09/15No. 35,552 Spurlock v. N.M. Board of Examiners

for Architects COA 34,833 10/09/15No. 35,550 State v. Ben COA 33,921 10/07/15No. 35,546 State v. Lefthand COA 33,396 10/05/15No. 35,545 State v. Lemanski COA 33,846 10/05/15No. 35,544 State v. Trujeque COA 34,519 10/05/15No. 35,542 City of Roswell v. Marin COA 34,286 10/02/15No. 35,540 Fausnaught v. State 12-501 10/02/15No. 35,539 State v. Herrera COA 33,255 10/02/15No. 35,537 State v, Reyes COA 34,700 10/02/15No. 35,538 State v. Gallegos COA 34,689 10/02/15No. 35,535 State v. Herrera COA 33,078/33,255 09/29/15No. 35,532 Woody Investments v.

Sovereign Eagle COA 32,830 09/29/15No. 35,526 State v. Mitchell COA 34,573 09/24/15No. 35,525 State v. Ashley COA 32,974 09/23/15No. 35,523 McCoy v. Horton 12-501 09/23/15No. 35,522 Denham v. State 12-501 09/21/15No. 35,520 Deutsche Bank v. Huerta COA 34,337 09/21/15No. 35,519 State v. York COA 33,462 09/21/15No. 35,518 State v. Yanke COA 34,474 09/21/15No. 35,515 Saenz v.

Ranack Constructors COA 32,373 09/17/15No. 35,506 Alonso v. Hatch 12-501 08/31/15No. 35,495 Stengel v. Roark 12-501 08/21/15No. 35,480 Ramirez v. Hatch 12-501 08/20/15No. 35,479 Johnson v. Hatch 12-501 08/17/15No. 35,474 State v. Ross COA 33,966 08/17/15No. 35,422 State v. Johnson 12-501 08/10/15No. 35,466 Garcia v. Wrigley 12-501 08/06/15No. 35,454 Alley v. State 12-501 07/29/15No. 35,440 Gonzales v. Franco 12-501 07/22/15No. 35,422 State v. Johnson 12-501 07/17/15No. 35,416 State v. Heredia COA 32,937 07/15/15No. 35,415 State v. McClain 12-501 07/15/15No. 35,411 Tayler v. State 12-501 07/10/15No. 35,399 Lopez v. State 12-501 07/09/15No. 35,374 Loughborough v. Garcia 12-501 06/23/15No. 35,375 Martinez v. State 12-501 06/22/15No. 35,372 Martinez v. State 12-501 06/22/15No. 35,370 Chavez v. Hatch 12-501 06/15/15No. 35,369 Serna v. State 12-501 06/15/15No. 35,368 Griego v. Horton 12-501 06/15/15No. 35,353 Collins v. Garrett COA 34,368 06/12/15No. 35,335 Chavez v. Hatch 12-501 06/03/15No. 35,341 Martin v. State 12-501 05/28/15

No. 35,371 Pierce v. Nance 12-501 05/22/15No. 35,271 Cunningham v. State 12-501 05/06/15No. 35,266 Guy v. N.M. Dept. of

Corrections 12-501 04/30/15No. 35,261 Trujillo v. Hickson 12-501 04/23/15No. 35,217 Hernandez v. Horton 12-501 04/03/15No. 35,159 Jacobs v. Nance 12-501 03/12/15No. 35,106 Salomon v. Franco 12-501 02/04/15No. 35,097 Marrah v. Swisstack 12-501 01/26/15No. 35,099 Keller v. Horton 12-501 12/11/14No. 35,068 Jessen v. Franco 12-501 11/25/14No. 34,937 Pittman v.

N.M. Corrections Dept. 12-501 10/20/14No. 34,932 Gonzales v. Sanchez 12-501 10/16/14No. 34,881 Paz v. Horton 12-501 10/08/14No. 34,907 Cantone v. Franco 12-501 09/11/14No. 34,680 Wing v. Janecka 12-501 07/14/14No. 34,777 State v. Dorais COA 32,235 07/02/14No. 34,790 Venie v. Velasquz COA 33,427 06/27/14No. 34,775 State v. Merhege COA 32,461 06/19/14No. 34,706 Camacho v. Sanchez 12-501 05/13/14No. 34,563 Benavidez v. State 12-501 02/25/14No. 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 11/28/12No. 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 07/12/12No. 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. 33,877 State v. Alvarez COA 31,987 12/06/12 No. 33,930 State v. Rodriguez COA 30,938 01/18/13No. 34,363 Pielhau v. State Farm COA 31,899 11/15/13No. 34,274 State v. Nolen 12-501 11/20/13No. 34,443 Aragon v. State 12-501 02/14/14No. 34,522 Hobson v. Hatch 12-501 03/28/14No. 34,582 State v. Sanchez COA 32,862 04/11/14No. 34,694 State v. Salazar COA 33,232 06/06/14No. 34,669 Hart v. Otero County Prison 12-501 06/06/14No. 34,650 Scott v. Morales COA 32,475 06/06/14No. 34,784 Silva v. Lovelace Health

Systems, Inc. COA 31,723 08/01/14No. 34,728 Martinez v. Bravo 12-501 10/10/14No. 34,812 Ruiz v. Stewart 12-501 10/10/14No. 34,830 State v. Mier COA 33,493 10/24/14No. 34,929 Freeman v. Love COA 32,542 12/19/14No. 35,063 State v. Carroll COA 32,909 01/26/15No. 35,016 State v. Baca COA 33,626 01/26/15No. 35,130 Progressive Ins. v. Vigil COA 32,171 03/23/15No. 35,101 Dalton v. Santander COA 33,136 03/23/15

Effective October 16, 2015


Writs of CertiorariNo. 35,148 El Castillo Retirement Residences v.

Martinez COA 31,701 04/03/15No. 35,198 Noice v. BNSF COA 31,935 05/11/15No. 35,183 State v. Tapia COA 32,934 05/11/15No. 35,145 State v. Benally COA 31,972 05/11/15No. 35,121 State v. Chakerian COA 32,872 05/11/15No. 35,116 State v. Martinez COA 32,516 05/11/15No. 34,949 State v. Chacon COA 33,748 05/11/15No. 35,298 State v. Holt COA 33,090 06/19/15No. 35,297 Montano v. Frezza COA 32,403 06/19/15No. 35,296 State v. Tsosie COA 34,351 06/19/15No. 35,286 Flores v. Herrera COA 32,693/33,413 06/19/15No. 35,255 State v. Tufts COA 33,419 06/19/15No. 35,249 Kipnis v. Jusbasche COA 33,821 06/19/15No. 35,248 AFSCME Council 18 v. Bernalillo

County Comm. COA 33,706 06/19/15No. 35,214 Montano v. Frezza COA 32,403 06/19/15No. 35,213 Hilgendorf v. Chen COA 33056 06/19/15No. 35,279 Gila Resource v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,289 NMAG v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,290 Olson v. N.M. Water Quality Control

Comm. COA 33,238/33,237/33,245 07/13/15No. 35,349 Phillips v. N.M. Taxation and

Revenue Dept. COA 33,586 07/17/15No. 35,302 Cahn v. Berryman COA 33,087 07/17/15No. 35,318 State v. Dunn COA 34,273 08/07/15No. 35,386 State v. Cordova COA 32,820 08/07/15No. 35,278 Smith v. Frawner 12-501 08/26/15No. 35,398 Armenta v.

A.S. Homer, Inc. COA 33,813 08/26/15No. 35,427 State v.

Mercer-Smith COA 31,941/28,294 08/26/15No. 35,446 State Engineer v.

Diamond K Bar Ranch COA 34,103 08/26/15No. 35,451 State v. Garcia COA 33,249 08/26/15No. 35,438 Rodriguez v.

Brand West Dairy COA 33,104/33,675 08/31/15No. 35,426 Rodriguez v.

Brand West Dairy COA 33,675/33,104 08/31/15No. 35,499 Romero v.

Ladlow Transit Services COA 33,032 09/25/15No. 35,456 Haynes v. Presbyterian

Healthcare Services COA 34,489 09/25/15No. 35,437 State v. Tafoya COA 34,218 09/25/15No. 35,395 State v. Bailey COA 32,521 09/25/15

Certiorari Granted and Submitted to the Court:

(Submission Date = date of oralargument or briefs-only submission) Submission DateNo. 33,969 Safeway, Inc. v.

Rooter 2000 Plumbing COA 30,196 08/28/13No. 33,884 Acosta v. Shell Western Exploration

and Production, Inc. COA 29,502 10/28/13No. 34,146 Madrid v.

Brinker Restaurant COA 31,244 12/09/13No. 34,093 Cordova v. Cline COA 30,546 01/15/14No. 34,287 Hamaatsa v.

Pueblo of San Felipe COA 31,297 03/26/14

No. 34,546 N.M. Dept. Workforce Solutions v. Garduno COA 32,026 08/13/14

No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,548 State v. Davis COA 28,219 01/14/15No. 34,549 State v. Nichols COA 30,783 02/25/15No. 34,798 State v. Maestas COA 31,666 03/25/15No. 34,637 State v. Serros COA 31,975 04/13/15No. 34,630 State v. Ochoa COA 31,243 04/13/15No. 34,789 Tran v. Bennett COA 32,677 04/13/15No. 34,668 State v. Vigil COA 32,166 08/10/15No. 34,974 Moses v. Skandera COA 33,002 08/12/15No. 34,997 T.H. McElvain Oil & Gas v.

Benson COA 32,666 08/24/15No. 34,993 T.H. McElvain Oil & Gas v.

Benson COA 32,666 08/24/15No. 34,726 Deutsche Bank v.

Johnston COA 31,503 08/24/15No. 34,826 State v. Trammel COA 31,097 08/26/15No. 34,866 State v. Yazzie COA 32,476 08/26/15No. 35,049 State v. Surratt COA 32,881 10/13/15No. 35,035 State v. Stephenson COA 31,273 10/15/15No. 35,478 Morris v. Brandenburg COA 33,630 10/26/15No. 34,946 State v. Kuykendall COA 32,612 11/12/15No. 34,945 State v. Kuykendall COA 32,612 11/12/15

Opinion on Writ of Certiorari:

Date Opinion FiledNo. 34,995 State v. Deangelo M. COA 31,413 10/15/15

Writ of Certiorari Quashed:

Date Order FiledNo. 33,898 Bargman v. Skilled Healthcare

Group, Inc. COA 31,088 10/15/15

Petition for Writ of Certiorari Denied:

Date Order FiledNo. 35,509 Bank of New York v.

Borrego COA 33,988 10/16/15No. 35,269 Peterson v. Ortiz 12-501 10/15/15No. 35,517 State v. Lopez COA 34,166 10/13/15No. 35,513 State v. Wyatt B. COA 33,297 10/13/15No. 35,505 Wild Horse Observers v.

N.M. Livestock Board COA 34,097 10/13/15No. 35,504 Wild Horse Observers v.

N.M. Livestock Board COA 34,097 10/13/15No. 35,262 Sena v. Board of Finance 12-501 10/13/15No. 35,260 Duran v. Frawner 12-501 10/13/15


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 October 23, 2015Published Opinions

No. 32374 2nd Jud Dist Bernalillo CR-06-1702, STATE v M ASTORGA (affirm) 0/20/2015

Unublished Opinions

No. 32374 2nd Jud Dist Bernalillo CR-06-1702, STATE v M ASTORGA (affirm) 10/20/2015No. 33376 8th Jud Dist Taos CR-12-33, STATE v M ROMERO (affirm) 10/21/2015No. 34579 5th Jud Dist Chaves CR-13-386, STATE v A SERTUCHE (affirm) 10/21/2015No. 33664 12th Jud Dist Otero CR-12-397, STATE v J AXTOLIS (affirm) 10/22/2015

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

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

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


Dated Oct. 20, 2015

Clerk’s Certificate of Address and/or

Telephone Changes

Thomas William BannerNew Mexico Medical Board2055 S. Pacheco Street, Bldg. 400Santa Fe, NM [email protected]

Catherine Beckett4805 Briarwood Avenue, P103Midland, TX [email protected]

Evan C. BlackstoneU.S. Department of the Interior, Office of the Solicitor505 Marquette Avenue NWAlbuquerque, NM [email protected]

Hon. Matthew E. ChandlerNinth Judicial District Court700 N. Main Street, Suite 2Clovis, NM 88101575-742-7502575-763-5251 (fax)

Hon. Emilio Jacob ChavezEighth Judicial District Court1413 S. Second StreetRaton, NM 87440575-445-5585575-445-2626 (fax)

Francie Cordova609 Buena Vista Drive NEAlbuquerque, NM [email protected]

Callie DendrinosLegal Aid Society of Cleveland1223 W. Sixth StreetCleveland, OH 44113216-861-5500216-586-3220 (fax)[email protected]

Mark Peter DinelliParnall Law FirmPO Box 80092025 San Pedro Drive NE (87110)Albuquerque, NM 87198505-268-6500505-268-8708 (fax)[email protected]

Dahlia Renata DormanWebster Law Group719 Peachtree Road, Suite 200Orlando, FL 32804407-425-2583 Ext. 125407-422-3008 (fax)[email protected]

Martha Jean KaserSamaritan Counseling Center1101 Medical Arts Avenue NE, Bldg. 3Albuquerque, NM 87102505-842-5300

Robert E. KinneyPO Box 680Mesilla, NM [email protected]

Abigayil Michol LewisOffice of Senator Martin Heinrich400 Gold Avenue SW, Suite 1080Albuquerque, NM [email protected]

Emily A. MaherOffice of the Fifth Judicial District Attorney400 N. Virginia Avenue, Suite G-2Roswell, NM 88201575-622-4121575-622-4126 (fax)[email protected]

Bryan Kenneth MartinTed Hess & Associates, LLC110 Eighth StreetGlenwood Springs, CO 81601970-945-5300970-945-2898 (fax)[email protected]

Dwight N. MersereauCrowell & Moring, LLP1001 Pennsylvania Avenue NWWashington, DC [email protected]

Shannon MurdockNew Mexico Livestock Board300 San Mateo Blvd. NE, Suite 1000Albuquerque, NM [email protected]

Kevin Donald O’LearyLaw Offices of Kevin D. O’Leary, PLLC19125 N. Creek Parkway, Suite 120 PMB #425Bothell, WA [email protected]

Lorena OlmosPresbyterian Healthcare ServicesPO Box 266669521 San Mateo Blvd. NE (87113)Albuquerque, NM [email protected]

Francisco M. Ortiz1300 El Paseo Road #G-310Las Cruces, NM [email protected]

Jacqueline OrtizSutin, Thayer & Browne6565 Americas Parkway NEAlbuquerque, NM 87110505-883-2500505-888-6565 (fax)[email protected]

Charles S. ParnallLaw Office of Charles Parnall117 Bryn Mawr Drive SE, Suite 110Albuquerque, NM [email protected]

Hon. Stephen Quinn (ret.)401 Remuda DriveClovis, NM [email protected]

Karl William Reifsteck13th Judicial District CourtPO Box 10891835 Hwy. 314 S.W.Los Lunas, NM 87031505-865-2404505-869-0969 (fax)[email protected]

Christopher Elias SolisLaw Office of George “Dave” Giddens, PC10400 Academy Road NE, Suite 350Albuquerque, NM [email protected]

McKenzie St. Denis237 Willbrook Blvd., Unit APawleys Island, SC 29585843-235-9871888-497-7390 (fax)[email protected]

E. Ann StrahanN.M. Human Services DepartmentChild Support Enforcement Division653 Utah AvenueLas Cruces, NM 88001575-373-2062575-524-6539 (fax)[email protected]

Michael J. ThomasLaw Office of Michael J. Thomas, LLC5032 Mira Vista Drive NERio Rancho, NM 87144575-202-6141877-412-5171 (fax)[email protected]

Sandra K. WattsPO Box 621113 Second AvenueEast Glacier Park, MT [email protected]


























Clerk’s Certificates

Maria H. Weddige-GurneyAhr Law Offices, PC6707 Academy Road NE, Suite AAlbuquerque, NM 87109505-821-5122505-821-6868 (fax)[email protected]

Eugene I. ZamoraOrtiz & Zamora, Attorneys at Law, LLC2011 Botulph Road, Suite 200Santa Fe, NM 87505505-986-2900505-986-2911 (fax)[email protected]

Ann Follin Badway19119 Larchmont DriveOdessa, FL [email protected]

Kathleen Rosemary BryanShar Gaden Monastery, Lama Camp 1PO Tibetan Colony 5814111Mundgod, Karnataka, [email protected]

Ken Del Valle521 Texas AvenueEl Paso, TX 79901915-544-0202915-544-5361 (fax)[email protected]

Moulin J. Desai2225 N Street NW #229Washington, DC [email protected]

Casey DoumaPO Box 1163Pinetop, AZ [email protected]

John A. DuranDuran & McDonald, LLC105 Bryn Mawr Drive SEAlbuquerque, NM 87106505-924-2121505-268-1162 (fax)[email protected]

Alma C. Hernandez-BlackwellACHB Law, LLC308 King Ranch CourtFort Worth, TX [email protected]

Margaret R. McNett2801 Bosque del Sol Lane NWAlbuquerque, NM [email protected]

Stephanie D. Pauly634 W. Addison #12Chicago, IL [email protected]

Deborah A. Solove1603 Narcisa Court NWAlbuquerque, NM [email protected]

Stephen L. Stevers1705 N. Valley Drive, Suite 11Las Cruces, NM 88007575-526-6975575-526-1146 (fax)[email protected]

Vici H. Taus699 Cascade Drive NWSalem, OR [email protected]

David Allen Thomsen712 E. 41st StreetSilver City, NM [email protected]

Angela J. Varnado5806 Glacier WayYakima, WA [email protected]

Ana I. ChristianPolsinelli LLP2049 Century Park East, Suite 2900Los Angeles, CA 90067310-203-5300310-203-5302 (fax)[email protected]

Tony F. OrtizOrtiz & Zamora, Attorneys at Law, LLC2011 Botulph Road, Suite 200Santa Fe, NM 87505505-986-2900505-986-2911 (fax)[email protected]



















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 October 28, 2015

Pending Proposed Rule Changes Open for Comment:

Comment DeadlineRule 5 401. [Bail] Pretrial release. 11/12/15Rule 5 408. Pretrial release by designee. 11/12/15Rule 6 408. Pretrial release by designee. 11/12/15Rule 7 408. Pretrial release by designee. 11/12/15Rule 8 408. Pretrial release by designee. 11/12/15Form 9 302A. Order for release on recognizance by designee. 11/12/15

Recently Approved Rule Changes Since Release of 2015 NMRA:

For 2014 year-end rule amendments that became effective Decem-ber 31, 2014, and which now appear in the 2015 NMRA, 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.

Rule No. Set/Title Effective Date

Rules of Civil Procedure for the District Courts

1-005.2 Electronic service and filing of pleadings and other papers. 07/01/15

Uniform Jury Instructions-Criminal

14 602 Withdrawn 04/03/1514 603 Withdrawn 04/03/1514 604 Withdrawn 04/03/1514 605 Withdrawn 04/03/1514 610 Withdrawn 04/03/1514 611 Chart 04/03/1514 612 Child abuse not resulting in death or great

bodily harm; essential elements 04/03/1514 615 Child abuse resulting in great bodily harm;

essential elements 04/03/1514 621 Child abuse resulting in death; child at least

12 but less than 18; essential elements 04/03/1514 622 Child abuse resulting in death; reckless

disregard; child under 12; essential elements 04/03/1514 623 Child abuse resulting in death; intentional

act; child under 12; essential elements 04/03/1514 625 Jury procedure for various degrees of

child abuse resulting in death of a child under twelve years of age 04/03/15

Code of Judicial Conduct

21-402 Political and campaign activities of judicial candidates in public elections. 11/01/15

21-404 Campaign committees. 11/01/15

Local Rules of the Second Judicial District Court

LR2-303 Electronic filing authorized. 07/01/15

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.

http://www

http://nmsupremecourt.nmcourts.gov

http://www.nmcompcomm.us


Rules/OrdersFrom the New Mexico Supreme Court

The Supreme Court of New Mexico Announces 2015 Year-End Rule Amendments

Under Rule 23-106 NMRA, the Supreme Court now adopts most rule changes once per year in the fall. Because of the large number of year-end rule amendments for 2015, the actual text of the rule amendments will not be published in the Bar Bulletin due to space constraints. Instead, what follows is a summary of the new rule amendments that the Court recently approved, which, unless otherwise noted below, go into effect on Dec. 31, 2015. The full text of the new rule amendments can be viewed on the New Mexico Compilation Commission’s website at www.nmcompcomm.us/nmrules/NMRuleSets.aspx.

________________________________________

Children’s Court Rules

Peremptory Excusal Rule[Rule 10-162 NMRA]The Supreme Court has approved amendments to the peremptory excusal rule for children’s court cases to provide a procedure for the Chief Justice to address misuses of the peremptory excusal rule by an attorney or group of attorneys that result from the exercise of peremptory excusals for improper purposes or with such frequency as to impede the administration of justice.

Appointment of Educational Decision Maker [New Rule 10-316 NMRA]The Supreme Court has approved the proposal from the Chil-dren’s Court Rules Committee to adopt new Rule 10-316 NMRA to govern the appointment of an educational decision maker in abuse and neglect cases. The rule requires the appointment of an educational decision maker in every case and sets forth proce-dures and standards for doing so.

Conduct of Hearings in Abuse and Neglect Cases [New Rule 10-324 NMRA]The Supreme Court has approved the proposal from the Chil-dren’s Court Rules Committee to adopt new Rule 10-324 NMRA to govern the conduct of hearings in abuse and neglect cases. The rule sets forth definitions and standards to assist the court with determining who may attend hearings, which are closed to the “general public” under the rule and NMSA 1978, Section 32A-4-20.

________________________________________

Code of Judicial Conduct

Prefatory Sections (Preamble, Scope, Terminology, and Application) and Related Provisions[Rules 21-001, 21-002, 21-003, 21-004, 21-310 and 21-405 NMRA]The Supreme Court has approved amendments to the Preamble, Scope, Terminology, and Application sections of the Code, as well as Rules 21-310 and 21-405 NMRA, as recommended by the Code of Judicial Conduct Committee. A warning was added

to the Preamble for judges and judicial candidates to proceed cautiously in the use of social media. Substantial revisions were made to the Application. For example, the Application no longer uses the terms continuing, periodic, or pro tempore, but expressly names the type of judge to whom the particular section applies and distinguishes between elected and non-elected judges. The Ap-plication also clarifies that non-elected judges serving by contract or appointment on a part-time basis are only required to comply with Rule 21-302 NMRA while serving as a judge. Finally, the definition of “judge” was moved from the Application section to the Terminology section. The Supreme Court approved amend-ments to Rules 21-310 and 21-405 consistent with revisions to the Application. Revisions to the Scope are stylistic only.

Ex Parte Communications [Rule 21-209 NMRA]The Supreme Court has approved amendments to Rule 21-209 NMRA clarifying that “a probate judge may obtain written or verbal advice from a disinterested expert on the law applicable to a proceeding before the judge without notice to the parties,” as recommended by the Code of Judicial Conduct Committee.

Disqualification [Rule 21-211 NMRA]The Supreme Court has approved amendments to Comment 5 of Rule 21-211 NMRA, as recommended by the Code of Judicial Conduct Committee, to address an apparent conflict with Rules 1-088(C), 5-105(C), and 10-161(C) NMRA, which call for auto-matic recusal of a judge when an employee of the court is a party to a proceeding (unless there is written agreement of the parties). An additional sentence was added to the comment to clarify that specific rules of procedure may dictate automatic recusal, but in the absence of a rule, the comment shall apply.

Extrajudicial Activities [Rule 21-301 NMRA]The Supreme Court has approved amendments to Comment 1 of Rule 21-301 NMRA, as recommended by the Code of Judicial Conduct Committee, clarifying that judges may “speak, write, lecture, teach, and engage in other extrajudicial activities con-cerning non-legal subjects,” subject to the Code’s requirements.

Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities [Rule 21-307 NMRA]The Supreme Court has approved amendments to Comment 4 of Rule 21-307 NMRA, as recommended by the Code of Judicial Conduct Committee, clarifying that it is permissible for a judge’s name to appear on an organization’s letterhead, even if the let-ter solicits funds or membership, if the judge is not personally involved in the solicitation. The comment was also amended to state that a judge’s title is not permitted on an organization’s let-terhead for any purpose.

Extrajudicial Compensation, Expense Reimbursement, and Re-porting [Rule 21-315 NMRA]The Supreme Court approved amendments to Rule 21-315 NMRA, as recommended by the Code of Judicial Conduct

http://www.nmcompcomm.us/nmrules/NMRuleSets.aspx



Rules/OrdersCommittee, reinstating the reporting requirements of former Rule 21-600 NMRA (1987, amended and recompiled in 2012). The Court approved keeping the current rule’s requirement, however, that reports “shall be filed . . . in the office of the clerk of the court on which the judge serves or other office designated by law,” rather than the Supreme Court Clerk’s Office, as set forth in former Rule 21-600. The Supreme Court also approved adding disability benefits to the list of items excepted from extrajudicial compensation, and approved the addition of language clarify-ing that the “reimbursement of expenses and waiver of fees or charges, when provided by a governmental entity or an entity primarily funded by state or federal funds in connection with judicial education and training” are not considered extrajudicial compensation and are not subject to the reporting requirements of the rule.

Political and Campaign Activities [Rules 21-400, 21-401, and 21-403 NMRA]The Supreme Court approved amendments to the commentary of Rules 21-400 (Canon 4), 21-401 (Political activity for judges), and 21-403 (Activities of candidates for appointive judicial of-fice) NMRA, as recommended by the Code of Judicial Conduct Committee. The amended commentary clarifies that Rule 21-401 applies to judges, while Rule 21-402 NMRA applies to judicial candidates. References to the appropriate rules were included where needed.

Political and Campaign Activities of Judicial Candidates; Campaign Committees [Rules 21-402 and 21-404 NMRA]The Supreme Court approved amendments to Rules 21-402 and 21-404 NMRA clarifying that judicial candidates may not person-ally solicit or personally accept campaign contributions for their own campaigns. The rule amendments also clarify that candidates may not personally solicit or use campaign committees to solicit contributions for the campaigns of other candidates or offices. The commentary to the rules was amended to clarify that seed money and qualifying contributions are considered campaign contributions for the purposes of the rules. The commentary to Rule 21-402 was also amended to clarify that Rule 21-401 NMRA applies to judges, while Rule 21-402 applies to judicial candidates. References to the appropriate rules were included where needed. Finally, Comment 13 to Rule 21-402 was amended to strike the reference to the “Fair Judicial Elections Committee of the State Bar,” only referencing Rule 21-406 NMRA. Please note that some additions and deletions to Rules 21-402 and 21-404 were not indicated in markup format in the Supreme Court approved drafts that were distributed by email on October 15th and 16th of this year. While those drafts did contain all of the language approved by the Supreme Court, the drafts indicating all revi-sions in full markup format are now posted to the Compilation Commission’s website.

Violations [Rule 21-406 NMRA]The Supreme Court approved amendments to Rule 21-406 NMRA, as recommended by the Code of Judicial Conduct Committee. The rule was amended to clarify that violations of the Code by hearing officers and special commissioners are an employment matter to be addressed by the Chief Judge of the relevant judicial district, rather than by the Judicial Standards Commission. The rule was also revised to consistently use the

word “judge” throughout, rather than “incumbent judge.” Finally, the rule was amended to clarify that violations of the Code by judges shall be proceeded upon by the Judicial Standards Com-mission, while violations by non-judge candidates shall be pro-ceeded upon by the Disciplinary Board. The rule was previously silent as to this distinction.

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Rules Governing Admission to the Bar

Uniform Bar Examination [Rules 15-103, 15-104, 15-202, 15-203, 15-204 (withdrawn), 15-205, 15-207, and 15-302 NMRA]The Supreme Court has approved amendments to the Rules Governing Admission to the Bar to adopt the Uniform Bar Ex-amination (UBE) for use in New Mexico. The adoption of the UBE for use in New Mexico is effective immediately for use in the February 2016 bar examination and thereafter.

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Rules Governing Discipline

Informal Admonitions [Rules 17-106, 17-206, 17-308, 17-315, and 17-316 NMRA]The Supreme Court has approved amendments to the Rules Governing Discipline to clarify the procedures for the issuance of an informal admonition as a form of attorney discipline and the process for appealing the imposition of an informal admonition to the Supreme Court.

Assessment of Disciplinary Fee [Rule 17-203 NMRA]The Supreme Court has approved an amendment to Rule 17-203 NMRA to eliminate the assessment of the annual disciplinary fee for retired judges.

Restitution [Rule 17-206 NMRA]The Supreme Court has approved an amendment to Rule 17-206 NMRA to clarify that the Board may only recommend that an attorney pay restitution as part of a recommended discipline and to confirm that only the Supreme Court may order an attorney to pay restitution within the context of a disciplinary proceeding.

Reciprocal Discipline [Rule 17-210 NMRA]The Supreme Court has approved an amendment to Rule 17-210 NMRA to make the process more efficient when the Board or attorney seeks to modify the type of discipline imposed within a reciprocal discipline proceeding.

Administrative Practice by Non-Attorneys and Former Attorneys [Rule 17-212 and 17B-009 NMRA]The Supreme Court has approved amendments to the Rules Governing Discipline and the Rules Governing the Unauthorized Practice of Law to clarify the extent to which non-attorneys and disbarred and suspended attorneys may represent parties in state or local administrative agencies.


Rules/OrdersProtection from Compelled Testimony [Rule 17-304 NMRA]The Supreme Court has approved an amendment to Rule 17-304 NMRA to protect disciplinary officials from being compelled to testify in collateral proceedings regarding matters investigated or considered within their official disciplinary capacity.

Submission of Proposed Findings to Hearing Committees [Rule 17-313 NMRA]The Supreme Court has approved an amendment to Rule 17-313 NMRA to conform the procedure in the rule to the current practice for submitting proposed findings to hearing committees of the Disciplinary Board.

Board Ordered Probation [Rules 17-315 and 17-316 NMRA]The Supreme Court has approved amendments to Rules 17-315 and 17-316 NMRA to clarify the authority of the Board to order probation as a condition of an informal admonition or formal reprimand and to clarify the manner in which an attorney may appeal the order of probation.

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Rules of Appellate Procedure

Election Contest Appeals[Rule 12-603 NMRA]The Supreme Court has approved amendments to Rule 12-603 NMRA to expedite the process for pursuing an election contest appeal to the Supreme Court. The amendments simplify the pleadings an appellant must file to initiate an appeal and shorten the time for starting the appellate process so that there is more time for the Court to hear and resolve these time-sensitive ap-peals.

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Rules of Civil Procedure for the District Courts and Civil Forms

Peremptory Excusal Rule[Rule 1-088.1 NMRA]The Supreme Court has approved amendments to the peremp-tory excusal rule for civil cases in district court to (1) limit the number of peremptory excusals that may be exercised in a case by similarly situated parties, (2) limit the time within which later-added parties may exercise a peremptory excusal, and (3) provide a procedure for the Chief Justice to address misuses of the peremptory excusal rule by an attorney or group of attorneys that are exercised for improper purposes or with such frequency as to impede the administration of justice.

Criminal Contempt Proceedings in District Court[Rule 1-093 NMRA]The Supreme Court has approved the proposal from the Joint Committee on Rules of Procedure to adopt comprehensive rules governing criminal contempt of court proceedings in the district courts. Because a criminal contempt proceeding can arise from conduct occurring within either a civil action or a criminal ac-tion, the Supreme Court is adopting similar rules for inclusion in the Rules of Civil Procedure for the District Courts, see Rule

1093 NMRA, and the Rules of Criminal Procedure for the District Courts, see Rule 5-112 NMRA.

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Rules of Civil Procedure for the Magistrate Courts

Judge Designation in Magistrate Court [Rule 2-105 NMRA]The Supreme Court has approved the Courts of Limited Juris-diction Rules Committee’s recommendation to amend the rule governing assignment and designation of judges to civil cases in magistrate court, Rule 2105 NMRA. The amendments reflect the actual practice district courts follow to designate an outofdistrict judge. The Supreme Court is adopting similar amendments to the rule governing judge assignment and designation in criminal cases, Rule 6-105 NMRA. Additionally, for consistency between Rule 2-105 and the corresponding rule of criminal procedure, Rule 6-105 NMRA, a new joint recusal provision has been added to Rule 2105(B)(1)(a).

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Rules of Criminal Procedure for the District Courts and Criminal Forms

Peremptory Excusal Rule[Rule 5-106 NMRA]The Supreme Court has approved amendments to the peremptory excusal rule for criminal cases in district court to provide a pro-cedure for the Chief Justice to address misuses of the peremptory excusal rule by an attorney or group of attorneys that result from the exercise of a peremptory excusal for improper purposes or with such frequency as to impede the administration of justice.

Criminal Contempt Proceedings in District Court[Rule 5-112 NMRA]The Supreme Court has approved the proposal from the Joint Committee on Rules of Procedure to adopt comprehensive rules governing criminal contempt of court proceedings in the district courts. Because a criminal contempt proceeding can arise from conduct occurring within either a civil action or a criminal ac-tion, the Supreme Court is adopting similar rules for inclusion in the Rules of Civil Procedure for the District Courts, see Rule 1093 NMRA, and the Rules of Criminal Procedure for the District Courts, see Rule 5-112 NMRA.

Preservation of Biological and Physical Evidence[Rule 5-117 NMRA]The Supreme Court has approved amendments to Rule 5-117 NMRA (“Record; exhibits.”). Rule 5-117(D) permits court clerks to dispose of exhibits after the expiration of a certain time period following the conclusion of a case. The approved amendments to Rule 5-117 impose the preservation obligations found in NMSA 1978, Section 311A2 (2003) (“Procedures for postconviction consideration of DNA evidence; requirements.”) on the court for exhibits that come into its possession as evidence. In addition, the approved amendments require the court clerk to file a notice of the final disposition of the evidence to ensure that courts document the handling of materials potentially containing biological evidence so that incarcerated individuals can locate them for later testing.


Rules/OrdersPetition for Citizen Grand Jury[New Rule 5-302B NMRA and new Form 9-200 NMRA]The Supreme Court has adopted new Rule 5-302B NMRA and new Form 9-200 NMRA in response to Convisser v. Ecoversity, 2013-NMSC-039, ¶ 29, 308 P.3d 125, to assist in implementing the citizen grand jury petition requirements under Article II, Section 14 of the New Mexico Constitution.

Disclosure of Expert Witnesses[Rules 5-501 and 5-502 NMRA]The Supreme Court has approved amendments to Rules 5-501 and 5-502 NMRA pertaining to the disclosure of expert witnesses. The rules require the parties to submit witness lists but do not require notification as to which witnesses will provide expert testimony. The approved amendments require both the prosecution and the defense to indicate which witnesses will testify as experts and describe the nature of their testimony.

Discovery Timelines[Rule 5-502 NMRA]

The Supreme Court has approved amendments to Rule 5-502 NMRA relating to disclosure by the defense. The rule requires defendants to provide disclosure by the earlier of (1) thirty days after arraignment or the filing of a waiver of arraignment, or (2) ten days before trial. The approved amendments eliminate the second date because, as a practical matter, the first date virtually always occurs before the second date.

Remand Order Following De Novo Appeal[New Forms 9-621 and 9-622 NMRA]The Supreme Court has adopted new Forms 9-621 and 9-622 NMRA. These forms are designed to be used by the district court in remanding a case to a court of limited jurisdiction after a de novo appeal. Form 9-622 addresses probation violation appeals while Form 9-621 addresses all other de novo appeals.

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Rules of Criminal Procedure for the Limited Jurisdiction Courts and Criminal Forms

Because the rules of procedure for the magistrate, metropolitan, and municipal courts often overlap, amendments to the magistrate court rules, metropolitan court rules, and municipal court rules are summarized together in this section. In some instances, the Court has amended similar rules in similar ways for all courts. In other instances, the Court has only approved amendments to one or two particular sets of rules.

Judge Designation in Magistrate Court [Rule 6-105 NMRA]The Supreme Court has approved the Courts of Limited Juris-diction Rules Committee’s recommendation to amend the rule governing assignment and designation of judges to criminal cases in magistrate court, Rule 6105 NMRA. The proposed revi-sions reflect the actual practice that the district court follows to designate an outofdistrict judge. The Supreme Court is adopting similar amendments to the rule governing judge assignment and designation in civil cases, Rule 2-105 NMRA.

Presence of the Defendant for Entry of a Guilty or No Contest Plea [Rules 6-109, 7-109, and 8-108 NMRA; and new Form 9-104C NMRA]The Supreme Court has approved a recommendation from the Courts of Limited Jurisdiction Rules Committee and the Metro-politan Courts Rules Committee to amend the rules governing the presence of the defendant at magistrate, metropolitan, and municipal court proceedings, Rules 6109, 7-109, and 8108 NMRA, and to adopt a new Waiver of Appearance form, Form 9104C. The amendments clarify that a criminal defendant in magistrate, metropolitan, or municipal court cannot waive his or her appear-ance in court for the entry of a guilty or no contest plea. Instead, the court must hold a hearing, which may include a telephonic or video hearing under Rules 6-110A, 7-110A, or 8-109A NMRA, and the court must give the defendant the appropriate plea col-loquy to ensure that the plea is voluntary as set forth in Rules 6-502, 7-502, and 8-502 NMRA. The court does not, however, need to hold a hearing to accept a guilty or no contest plea in a case that may be resolved without a hearing under Rules 6503, 7-503, or 8503 NMRA.

Issuance of Summons Upon Docketing of Criminal Action [Rules 6-204, 7-204, and 8-203 NMRA]The Supreme Court has approved a recommendation from the Courts of Limited Jurisdiction Rules Committee and the Metropolitan Courts Rules Committee to amend the rules governing the issuance of a criminal summons, Rules 6204, 7-204, and 8203 NMRA. Currently, the rules require a show-ing of probable cause for the issuance of a criminal summons. The amended rules permit the magistrate, metropolitan, and municipal courts to issue a criminal summons upon the docket-ing of a criminal action without a showing of probable cause, as is allowed under Rule 5208 NMRA of the Rules of Criminal Procedure for the District Courts. The rule amendments do not alter the procedure for issuing arrest warrants, which require a sworn statement of the facts showing probable cause that an offense has been committed.

Bench Warrant for Failure to Pay Fines and Fees [Rules 6-207, 7-207, and 8-206 NMRA]The Supreme Court has approved a recommendation from the Courts of Limited Jurisdiction Rules Committee and the Metro-politan Courts Rules Committee to amend the rules governing the issuance of bench warrants for failure to pay fines and fees in the magistrate, metropolitan, and municipal courts, Rules 6207, 7-207, and 8206 NMRA. The amendments require the court to issue a summons, rather than a bench warrant, the first time a defendant misses a required payment. Additionally, as explained in new committee commentary, the amendments encourage the court to develop and implement automated methods for providing the defendant with supplementary notice of missed payments, such as automated telephone calls, email messages, or text messages. Finally, the amendments clarify that the court retains jurisdiction to to issue a bench warrant for failure to pay fines or fees after the defendant’s period of probation has otherwise expired.

Discovery in Criminal Cases in Magistrate and Municipal Courts [Rules 6-504 and 8-504 NMRA]The Supreme Court has approved a recommendation from the Courts of Limited Jurisdiction Rules Committee to amend the


Rules/Ordersdiscovery rules for magistrate and municipal courts, Rules 6504 and 8504 NMRA. The amendments to Rule 6-504 require the prosecution to disclose discovery and a witness list to the defen-dant within forty-five (45) days after the date of arraignment, and require the defendant to disclose discovery and a witness list to the prosecution within sixty (60) days after the date of arraign-ment. These amendments are intended to speed up the discovery process by counting discovery deadlines forward from the date of arraignment, rather than backward from the date of trial. The Court also approved the addition of a new sentence to Paragraph D of both the magistrate and municipal court rules to alert parties that they may request a subpoena from the court for a witness interview if good faith efforts to secure a witness interview have been unsuccessful.

Peremptory Excusal of Jurors in Magistrate Court[Rule 6-605 NMRA]The Supreme Court has approved a recommendation from the Courts of Limited Jurisdiction Rules Committee to amend the magistrate court juror rule, Rule 6-605 NMRA. The amendments clarify that the number of peremptory excusals to which each party is entitled is based on the highest offense charged, and not the number of charges.

Excusal of Pro Tem Judges in Metropolitan Court [Rules 7-105 and 7-106 NMRA]The Supreme Court has approved a recommendation from the Metropolitan Courts Rules Committee to amend Rules 7-105 and 7-106 NMRA. The amendments clarify that parties are permit-ted to excuse a pro tem metropolitan court judge who has been appointed by the Chief Metropolitan Court Judge.

Forms for Appointment of Contract Defense Counsel [Form 9-403A and new Form 9-403B NMRA]The Supreme Court has approved a recommendation from the Courts of Limited Jurisdiction Rules Committee to adopt a new form for the appointment of contract defense counsel, Form 9403B NMRA. The form should be used in municipal courts and in magistrate court districts where the Law Offices of the Public Defender does not have a physical office and relies on contract defense counsel. The Court also has approved updates to existing Form 9403A. Specifically, Form 9403A will be revised to refer to the “Law Offices of the Public Defender” instead of the “Public Defender Department.”

Form for Waiver of Arraignment in Magistrate Court [New Form 9-405B NMRA]The Supreme Court has approved a recommendation from the Courts of Limited Jurisdiction Rules Committee to adopt a new Waiver of Arraignment form, Form 9405B NMRA, to be used in cases within magistrate and municipal court trial jurisdiction. The rules governing arraignments and first appearances in magistrate and municipal courts provide that the defendant may, with prior approval of the court, file a written waiver of arraignment, and that such waiver “shall be substantially in the form approved by the Supreme Court.” Rules 6501(C) and 8501(C) NMRA. The Committee drafted this new form because previously there was no Supreme Court approved form for waiving arraignment in cases within the trial jurisdiction of the magistrate and municipal courts. Cf. Form 9405 NMRA (waiver of arraignment form for use in district court); Form 9405A NMRA (waiver of first ap-

pearance form for cases not within magistrate or metropolitan court trial jurisdiction).

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Rules of Evidence

Minimum Qualification of Polygraph Examiners [Rule 11-707 NMRA]The Supreme Court has approved the proposal from the Rules of Evidence Committee to amend Rule 11-707 NMRA, which governs the admissibility of polygraph examinations. The amend-ments replace the rule’s minimum continuing education require-ments for the qualification of polygraph examiners with a general requirement that such examiners have “a current, active polygraph examiner license, in good standing, in New Mexico or in another jurisdiction with licensure standards that are equal to or greater than those in New Mexico.”

Business and Public Records Exceptions to the Rule Against Hearsay [Rule 11-803 NMRA]The Supreme Court has approved the proposal from the Rules of Evidence Committee to amend Rule 11-803 NMRA, which sets forth exceptions to the rule against hearsay. The amendments are limited to Paragraphs 6, 7, and 8, the so-called business records and public records exceptions, and clarify that the opponent of a record’s admissibility has the burden of showing that the excep-tion does not apply when the other elements of the exception have been met. The Court also has approved other amendments to the rule that are intended to be stylistic only.

Rules of Professional Conduct

Outsourcing [Rule 16-101 NMRA]The Supreme Court has approved amendments to Comments 6 and 7 of Rule 16-101 NMRA, as recommended by the Code of Professional Conduct Committee, clarifying the obligations of a lawyer who hires outside lawyers to assist in the representation of a client. These amendments come from ABA Resolution 105C, Comments 6 & 7 to ABA Model Rule 1.1. These comments are the same as the Model Rule comments, except that the word “or-dinarily” has been removed from the first sentence of Comment 6 and the first sentence of Comment 7.

Limited Entry of Appearance; Opposing Counsel’s Ethical Duties [Rules 16-102 and 16-402 NMRA]The Supreme Court has approved amendments to Comment 10 of Rules 16-102 and 16-402 NMRA, as recommended by the Code of Professional Conduct Committee, to clarify the duties of lawyers when a party to a case is receiving limited-scope representation. The comments set forth the obligations of both the limited-scope lawyer and opposing counsel.

Fee Agreements in Writing [Rule 16-105 NMRA]The Supreme Court has approved amendments to Rule 16-105 NMRA, as recommended by the Code of Professional Conduct Com-mittee, to require fee agreements to be in writing. The amendments exempt services provided as part of a legal fair and services provided under an indigent representation agreement imposed by the courts.


Rules/OrdersTechnology and Client Development [Rules 16-118, 16-505, 16-701, 16-702, and 16-703 NMRA]The Supreme Court has approved amendments to Rules 16-118, 16-505, 16-701, 16-702, and 16-703 NMRA, as recommended by the Code of Professional Conduct Committee, to incorporate provisions of ABA Resolution 105B pertaining to the use of tech-nology and client development. These rules focus on the formation and nature of the attorney-client relationship.

Disclosure of Confidential Information; Conflicts of Interest [Rule 16-110 NMRA] The Supreme Court has approved amendments to the commen-tary of Rule 16-110 NMRA, as recommended by the Code of Professional Conduct Committee, to provide guidance regarding motions to disqualify. Comment 7 was added in response to the Supreme Court’s request in Mercer v. Reynolds, 2013-NMSC-002, ¶ 44 n.2, 292 P.3d 466, to study the best method for determin-ing whether an attorney has played a substantial role in a matter without compromising attorney-client privilege.

Special Duties of Prosecutors [Rule 16-308 NMRA]The Supreme Court has approved amendments to Rule 16-308 NMRA, as recommended by the Code of Professional Conduct Committee, to clarify the duties of prosecutors upon discovery of exculpatory evidence after a conviction. The amendments are a modified version of ABA Model Rule 3.8 and only address the ethical duty of the prosecutor to disclose post-conviction excul-patory information, not the required procedure for carrying out that duty.

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Supreme Court General Rules

Supreme Court Rules Committees and Rulemaking Procedures[Rule 23-106 NMRA; new Rule 23-106.l NMRA]The Supreme Court has approved amendments to Rule 23-106 NMRA, the rule governing Supreme Court rules committees and rulemaking procedures. The amendments will split Rule 23-106 into two rules; amended Rule 23-106 will continue to govern committee appointments, composition, and functions, and new Rule 23-106.1 will govern rulemaking procedures. New Rule 23-106.1 also provides that all Supreme Court Rules Committees will follow an annual rulemaking cycle.

Uniform Jury Instructions for Civil Cases

Contract Damages[UJI 13-843 NMRA and new UJI 13-843A]The Supreme Court has approved amendments to UJI 13-843 NMRA (“Contracts; measure of damages; general instruction.”) and adopted new UJI 13-1843A NMRA in light of Sunnyland Farms, Inc. v. Cent. N.M. Elec. Coop., Inc., 2013-NMSC-017, 301 P.3d 387. In Sunnyland, the Court discussed the distinc-tion between general damages and consequential damages and elucidated “special circumstances” in which a party may recover consequential damages in a breach of contract action. Id. ¶ 16. UJI 13-843 contains language that could be construed as ignoring the distinction between direct damages, which are available in virtually any contract case, and consequential damages, which are

available only if the plaintiff can establish “special circumstances.” See id. Following the model of UJI 13-1802 NMRA, the Court placed the consequential damages elements in new instruction UJI 13-843A.

Liquor Liability[Withdrawal of UJIs 13-1641 to -1645 NMRA, new UJIs 13-1660 to -1668 NMRA]The Supreme Court has withdrawn UJIs 13-1641 to -1645 NMRA and adopted new UJIs 13-1660 to -1668 NMRA to address liability for the provision of alcohol. The new instructions address the following cases: Delfino v. Griffo, 2011-NMSC-015, 150 N.M. 97, 257 P.3d 917 (holding that NMSA 1978, Section 41-11-1(E) permits a cause of action against a social host who recklessly provides alcohol to a guest even when the alcohol is consumed in a licensed establishment and delivered by a licensed server); Mendoza v. Tamaya Enterprises, Inc., 2011-NMSC-030, 150 N.M. 258, 258 P.3d 1050 (holding that the enactment of Section 41-11-1 did not displace all common law liquor liability claims, and thus the common law continues to recognize liquor liability claims against non-licensee tavernkeepers), and Estate of Gutierrez ex rel. Jaramillo v. Meteor Monument, L.L.C., 2012-NMSC-004, 274 P.3d 97 (holding that the “reasonably-apparent” prong of Section 41-11-1 creates an objective standard). This new set of instruc-tions addresses the various actions that may be brought against licensees, social hosts in non-licensee settings, social hosts in licensee settings, unlicensed sellers, and non-social host procur-ers and providers.

Future Damages[UJI 13-1822 NMRA]The Supreme Court has approved amendments to UJI 13-1822 NMRA (“Future damages; discount to present cash value.”). The amendments provide a clearer explanation on the reduction of damages to present cash value as well as providing more flexibility in the instruction by allowing attorneys to stipulate to information such as the proper interest rate. Finally, the amendments advise attorneys that expert witnesses may be necessary to accurately establish present value for future losses and include information directing attorneys to the present value tables in the New Mexico Statutes Annotated.

Uniform Jury Instructions for Criminal Cases

General Use Note[UJI-Criminal General Use Note]. The Supreme Court has approved amendments to the General Use Note to the Uniform Jury Instructions for Criminal Cases. The General Use Note indicates an absolute mandate that uniform instructions be submitted without modification. Because there is often delay in modifying uniform instructions in response to case law and statutory changes, the approved amendments recognize that district courts may, if necessary, modify uniform instructions in order to correctly instruct on the law.

Kidnapping[UJI 14-403 NMRA and new UJI 14-403A; withdrawal of UJI 14-6018 NMRA]The Supreme Court has approved amendments to UJI 14-403 NMRA, adopted new UJI 14-403A NMRA, and withdrawn UJI 14-6018 NMRA pertaining to the crime of kidnapping. The rule


Rules/Orderschanges are aimed at addressing problems presented when the special verdict form, UJI 14-6018, is omitted by oversight and to avoid confusion regarding the burdens of proof for first and second degree kidnapping, largely caused by statutory language that appears to create a rebuttable presumption of first degree kidnapping. See NMSA 1978, § 30-4-1; State v. Dominguez, 2014-NMCA-064, ¶¶ 16-17, 327 P.3d 1092; State v. Gallegos, 2009-NMSC-017, ¶ 13, 146 N.M. 88, 206 P.3d 993. To address these concerns, the Court replaced the use of the special verdict form with two separate elements instructions for first and second degree kidnapping, requiring the use of a step-down instruction if instructed together. The approved elements instructions add a conduct description to first element in order to aid courts in ana-lyzing claims of double jeopardy and sufficiency of the evidence. In addition, the approved elements instructions clarify the use of the phrase “against [victim’s] will” and the “hold to service” alternative in the third element to better track the statute and relevant case law. Finally, the approved elements instructions add an element regarding “incidental” conduct in light of State v. Trujillo, 2012-NMCA-112, 289 P.3d 238, cert. quashed 2015-NM-CERT-003 (Mar. 16, 2015).

Second Degree Criminal Sexual Penetration[UJIs 14-954 NMRA and new UJI 14-6019A NMRA]The Supreme Court has approved amendments to UJIs 14-954 NMRA and adopted new UJI 14-6019 NMRA in response to State v. Stevens, 2014-NMSC-011, 323 P.3d 901 (holding that when a second degree criminal sexual penetration charge is based on the commission of a felony, “it must be a felony that is commit-

ted against the victim or, and that assists in the accomplishment of, sexual penetration perpetrated by force or coercion against a victim who, by age or other statutory factor, gave no lawful con-sent”). Based on its holding in Stevens, the Court has modified the elements instruction to better communicate the requisite nexus between criminal sexual penetration committed in the course of a felony and the predicate felony. The Court has also adopted a new special verdict form, UJI 14-6019A, to be used when the State seeks to pursue the mandatory three year sentence for second degree criminal sexual penetration when the victim is of a certain age as such a finding must be made by the jury.

Consequences of Verdict[UJI 14-6007]The Court has approved amendments to the Use Note of UJI 14-6007 (“Jury must not consider penalty”) adding an advise-ment to the parties and trial courts that the instruction may be of heightened importance in a case involving evidence of a defendant’s mental illness. The Court also removed language specific to death penalty cases.

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The full text of the new rule amendments summarized above can be viewed on the New Mexico Compilation Commission’s website at www.nmcompcomm.us/nmrules/NMRuleSets.aspx.

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Text and Photos by D.D. Wolohan

The State Bar of New Mexico Annual Meeting—Bench and Bar Conference at the Broadmoor in Colorado Springs treated its attendees to a variety of thought-provoking CLE programs and panel discussions, a golf tournament and a special tribute to retiring Justice Richard C. Bosson, all in a magnificent setting. State Bar President Martha Chicoski surprised the Paralegal Division with an award celebrating its 20th anniversary, and the Annual Awards recipients were feted with champagne and chocolate-covered strawberries at their ceremony. Next year’s meeting will be July 28-31 at the Buffalo Thunder Resort.

2015 Annual Meeting–Bench and Bar ConferenceCelebrating Connections and Community

State Bar President Martha Chicoski, fourth from left, presented awards to the State Bar Award

winners, Judge Cynthia A. Fry, Jeffrey Albright, Liz McGrath on behalf of Pegasus, Kim Posich,

Robert Bristol and Tom Overstreet. Not pictured: Tania Silva

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1. Dennis Jontz, Tom Overstreet, William Lutz and Jefferson Rhodes with the hole-in-one prize.

2. Brent and Mary Ann Moore join Raynard Struck and Jason Brock on The Broadmoor West Course.

3. Paralegal Division’s Tina Kelbe, Eileen Casadevall and Kay Homan celebrate the Presidents’ Award.

4. Martha Chicoski honored retiring Justice Richard C. Bosson for his many years of service to the bench and bar with a special award.

5. Justice Petra Jimenez Maes with Mary Torres and Erika Anderson at the Past Presidents’ Dinner.

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6. Mary Ann Green and Laurie Hedrich catch up at the Annual Meeting.

7. Justice Richard C. Bosson, Chief Justice Barbara J. Vigil, Gloria Bosson and Justice Petra Jimenez Maes at The Broadmoor.

8. Martha Chicoski joins past presidents James Mason, Art Jaramillo, Mary Torres, Alan Torgerson, Judge Henry Alaniz, Dan O’Brien, Dennis Jontz and Erika Anderson.

9. Keynote speaker Dave McGillivray, race director of the B.A.A. Boston Marathon, delivered an inspiring presentation on “Defining Moments: Overcoming Ethical Challenges and Winning the Race.”

10. Pamelya Herndon presents “Advancing Women’s Economic Security in the 21st Century.”

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11. Justice Bosson addresses the audience.12. In a particularly exciting plenary session, co-sponsored by

the Intellectual Property Law Section, a drone flew around the room over the audience.

13. Martha Chicoski recognizes Annual Meeting sponsor Dennis Jontz.

14. Members of The Woodpeckers band entertained attendees at the President’s Reception.

4 2015 Annual Meeting—Bench and Bar Conference

2016 Annual Meeting–Bench and Bar Conference

Buffalo Thunder • Santa FeJuly 28-30, 2016

See you next year!

For more photos, visit www.nmbar.org > for Members > Annual Meeting.



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


Opinion Number: 2015-NMSC-024

DARA HEM,Plaintiff,

v.TOYOTA MOTOR CORP., et al.,

Defendants,and

TURNER AND ASSOCIATES, P.A.,Claimant-in-Interpleader,

v.REGENTS OF THE UNIVERSITY OF NEW MEXICO, on behalf of

THE PUBLIC OPERATION, UNIVERSITY OF NEW MEXICO HOSPITAL,Claimant-in-Interpleader

No. 33,775 (filed June 25, 2015)

CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

M. CHRISTINA ARMIJO, U.S. District Court Judge

BARRY D. WILLIAMSJAMES T. REIST

TAX, ESTATE & BUSINESS LAW, LTD.Albuquerque, New Mexico

C. TAB TURNERTURNER & ASSOCIATES

North Little Rock, Arkansasfor Plaintiff and Turner & Associates, P.A., Claimant-in-Interpleader Turner

and Associates, P.A.

JEFFREY M. CROASDELLTODD E. RINNER

RODEY, DICKASON, SLOAN, AKIN & ROBB, P.A.

Albuquerque, New Mexico

TRACY M. JENKSLAW OFFICES OF

BRUCE S. MCDONALDAlbuquerque, New Mexico

KURT CHRISTOPHER KERNBOWMAN AND BROOK, L.L.P.

Dallas, Texasfor Defendants

SUSAN H. HAPKAANDREW J. SIMMONS

SUTIN, THAYER & BROWNE, P.C.Albuquerque, New Mexico

for Claimant-in-Interpleader Regents of The University of New

Mexico, on behalf of the public operation, University of New

Mexico Hospital

Opinion

Barbara J. Vigil, Chief Justice{1} In this case we determine whether an agreement by a state hospital to reduce the amount of a lien for medical services rendered violates Article IV, Section 32 of the New Mexico Constitution. This matter comes before the Court by way of certifica-tion from the United States District Court for the District of New Mexico pursuant to NMSA 1978, Section 39-7-4 (1997) and Rule 12-607 NMRA (2007). The ques-

tions certified to this Court arose out of an interpleader proceeding in the federal district court between Turner & Associates (Turner), attorneys for the plaintiff Dara Hem (Hem), and the University of New Mexico Hospital (UNMH), which treated Hem for injuries. UNMH argues it has pri-ority over settlement funds pursuant to an agreement between itself and Hem’s initial attorney, Clay Miller (Miller), in which Miller agreed to subrogate his statutory priority to settlement funds to UNMH. In exchange, UNMH agreed to reduce the amount of the lien imposed for Hem’s

outstanding medical bills. Turner argues that this agreement is unconstitutional. Therefore, Turner argues that it has a pri-ority right to collect fees and costs out of the interpleaded settlement funds prior to the satisfaction of the hospital lien, pursu-ant to the Hospital Lien Act, NMSA 1978, Section 48-8-1 to -7 (1961, as amended through 1995).{2} In order to resolve the matter, the fed-eral district court certified two questions to this Court concerning the application of Article IV, Section 32 of the New Mexico Constitution. The first question is whether the first clause of Section 32 is a limitation applicable only to acts of the Legislature, as this Court held in State v. State Invest-ment Company, 1925-NMSC-017, ¶ 13, 30 N.M. 491, 239 P. 741, or if it applies to the State in general, as indicated in Gutierrez v. Gutierrez, 1983-NMSC-016, ¶ 8, 99 N.M. 333, 657 P.2d 1182. The second certified question is whether Section 32 prohibits a state hospital from compromising a debt owed by a patient-debtor, where the amount of the debt owed is not disputed, but the patient-debtor’s ability to pay is doubtful and the compromise agreement is supported by consideration.{3} In response to the first certified ques-tion, we hold that the first clause of Sec-tion 32 was correctly interpreted in State Investment and is strictly a limitation on the Legislature. Our answer to the second certified question is that Article IV, Sec-tion 32 of the New Mexico Constitution does not prohibit UNMH from agreeing to compromise the amount owed by a patient-debtor.{4} In so deciding, we revisit this Court’s interpretation of Article IV, Section 32 in Gutierrez. Because we find nothing in the Constitution to support Gutierrez’s holding that a state hospital cannot compromise on a debt owed to it unless there is a good faith dispute as to the amount or liability for that debt, we conclude that Gutierrez must be overruled to the extent that it so holds. We hold that Article IV, Section 32 of the New Mexico Constitution simply requires that in order to extinguish debts or liabilities owed to the State, there must either be payment into the treasury or a proper court proceeding.I. BACKGROUND{5} In March 2007, Hem brought suit in a Texas federal court after he was seriously injured in an accident. Hem was traveling through northern New Mexico when his Toyota truck separated from the U-Haul trailer it was towing, causing the truck to

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http://www.nmcompcomm.us/Advance Opinionsroll over several times. After treating Hem for his injuries, UNMH recorded a hospital lien for Hem’s outstanding medical bills. The lien would attach to any future judg-ment or settlement he might procure from a lawsuit, pursuant to the Hospital Lien Act. See § 48-8-1(A) (“Every hospital located within the state that furnishes emergency, medical or other service to any patient injured by reason of an accident . . . is entitled to assert a lien upon that part of the judgment, settlement or compromise going, or belonging to such patient, less the amount paid for attorneys’ fees, court costs and other expenses necessary thereto in obtaining the judgment, settlement or compromise. . . .”). Although Hem did not dispute the amount owed, UNMH agreed to compromise on the lien amount and accept a lesser amount as payment in full. In exchange, one of Hem’s attorneys, Miller, agreed to give up his statu-tory priority over settlement funds already obtained from U-Haul and some anticipated settlement funds from Toyota, so UNMH would be paid first. See id. (providing that a hospital lien attaches to the amount of a patient’s recovery remaining after the pay-ment of attorneys’ fees). This compromise was confirmed in a letter written by Miller to UNMH (the UNMH Agreement). After sending the letter, Miller paid the U-Haul settlement funds he had already received to UNMH, per the UNMH Agreement.{6} In September 2009, the Texas court transferred Hem’s case against Toyota to New Mexico. The case went to trial in Janu-ary 2011, and while the jury deliberated, the parties reached a “Contingent Con-fidential Settlement Agreement” (Toyota Agreement), under which Hem would recover whether or not the jury found in his favor, but the amount of recovery was dependent on the jury’s verdict. The jury ultimately returned a verdict in Toyota’s favor, and in February 2011, the federal district court entered a final judgment dis-missing the action. In June 2011, Hem filed a motion to enforce the Toyota Agreement. Because there was a dispute over whether the settlement funds should be paid to UNMH or to Turner, Toyota filed a motion in interpleader to allow the federal district court to determine who was entitled to the funds. The federal district court entered an order permitting Toyota to pay the amount remaining on the UNMH lien into the court registry and discharged Toyota from the lawsuit. At this time, the remaining dispute in the interpleader proceeding is between Turner and UNMH; Hem claims no interest in the settlement funds.

{7} UNMH argues that it is entitled to be paid out of the Toyota Settlement funds before Turner because of the terms of the UNMH Agreement. Turner argues that the UNMH Agreement is unenforceable in light of Article IV, Section 32 of the New Mexico Constitution, thereby entitling Hem’s attorneys to the money pursuant to the Hospital Lien Act. See § 48-8-1(A) (providing that attorneys fees are taken out of settlement proceeds before such proceeds are used to pay a hospital lien). The disagreement over what Section 32 requires engendered the certified ques-tions. We accepted certification.II. DISCUSSION{8} The certified questions require us to interpret Article IV, Section 32 of the New Mexico Constitution. “We review issues of statutory and constitutional interpretation de novo.” State v. Ordunez, 2012-NMSC-024, ¶ 6, 283 P.3d 282 (internal quotation marks and citation omitted).{9} The provision at issue, Article IV, Sec-tion 32 of the New Mexico Constitution, reads, in pertinent part:

No obligation or liability of any person, association or corpora-tion held or owned by or owing to the state, or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released, postponed or in any way diminished by the legislature, nor shall any such obligation or liabil-ity be extinguished except by the payment thereof into the proper treasury, or by proper proceeding in court.

A. The First Clause of Article IV, Section 32 Is Strictly A Limitation on the Legislature and Is Therefore Not Relevant to These Proceedings

{10} When construing constitutional provisions, we keep in mind that “the rules of statutory construction apply equally to constitutional construction.” State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830 (inter-nal quotation marks and citation omitted). Just as if we were interpreting a statute, to determine the meaning of a constitutional provision, we begin with the language used in the provision and “the plain meaning of that language.” State v. Maestas, 2007-NMSC-001, ¶ 9, 140 N.M. 836, 149 P.3d 933. Where the meaning of that language is “clear and unam-biguous, we must give effect to that language and refrain from further . . . interpretation.” Sims v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153 (internal quotation marks and citation omitted).

{11} The plain language of the first clause of Section 32–“No obligation or liability of any person, association or corporation held or owned by or owing to the state, or any municipal corporation therein, shall ever be exchanged, transferred, remit-ted, released, postponed or in any way diminished by the legislature”–unambigu-ously applies solely to the Legislature. N.M. Const. art. IV, § 32. Although it mentions the state generally in the context of debts “owned by or owing to the state,” the only potential actor referenced in this provision is the Legislature. Id (emphasis added). Ac-cordingly, in State Investment, this Court held that the first clause of Section 32 restricts only the Legislature from dimin-ishing obligations owed to the State, and therefore the Attorney General and district attorneys were permitted to compromise on the defendant’s tax liability. See 1925-NMSC-017, ¶ 13. We agree with State In-vestment that the first clause of Section 32 is appropriately characterized as applying only to the Legislature.{12} Although the meaning of the plain language is unambiguous, the first certi-fied question arises from an apparent inconsistency between two New Mexico Supreme Court cases–State Investment and Gutierrez–that interpreted Section 32. In Gutierrez, the Court determined that Sec-tion 32 prohibits the State in general from compromising on “the amount owed to it unless a good faith dispute exists as to the amount of indebtedness or liability.” 1983-NMSC-016, ¶ 8. However, the Gutierrez opinion did not include a holding specific to the first clause of Section 32. See gener-ally Gutierrez, 1983-NMSC-016. Because the first clause clearly applies only to the Legislature, we conclude that Gutierrez was interpreting the second clause of Section 32 requiring a proper court proceeding, not the first clause regarding the Legislature’s attempts to compromise debt. Therefore, the conflict between State Investment and Gutierrez is limited to the interpretation of the second clause of Section 32, which applies to the State in general, and has no bearing on our interpretation of the first clause. Further, as we discuss below, the remaining conflict between the two cases is hereby eliminated because we partially overrule Gutierrez.{13} In answering the first certified question, we conclude that the first clause of Section 32 limits only the Legislature. Thus, it is irrelevant to the present case as no act by the Legislature is implicated here. Instead, in order to address the



http://www.nmcompcomm.us/Advance Opinionssecond question concerning whether the UNMH Agreement violates Section 32, we must consider it under the second clause of Section 32, as that clause is a limit on the State generally.B. The UNMH Agreement Does Not

Violate Article IV, Section 32 of the New Mexico Constitution

{14} The second clause of Section 32 provides, “nor shall any such obligation or liability be extinguished except by the payment thereof into the proper treasury, or by proper proceeding in court.” N.M. Const. art. IV, § 32. The phrase “any such obligation” refers to the language of the first clause describing an “obligation or liability of any person, association or corporation held or owned by or owing to the state, or any municipal corporation therein.” Id. Unlike the first clause, which provides specifically that these obligations owed to the State cannot be “in any way diminished by the legislature,” nothing in the second clause limits its application to any specific State entity. Id. (emphasis added). Instead, it applies to all obligations owed to the State and provides that such obligations can only be extinguished either by a full payment to the State treasury or by a proper proceeding in court.{15} Turner relies on this Court’s pre-vious interpretation of Section 32 in Gutierrez to argue that, because there is no dispute as to the amount owed, the UNMH Agreement is unconstitutional, regardless of whether or not a proper court proceeding occurs. UNMH argues that the proper court proceeding requirement will be satisfied when the federal district court issues its order approving the UNMH Agreement.1. Gutierrez Incorrectly Held that

Article IV, Section 32 Requires a Good Faith Dispute as to the Amount Owed or Liability

{16} The question in Gutierrez was whether a court could reduce a hospital lien at the patient-debtor’s request, when the hospital was unwilling to compromise. 1983-NMSC-016, ¶¶ 1-2, 4. In Gutier-rez, the plaintiffs were injured in a car accident, and the hospital filed liens for debt incurred as a result of the plaintiffs’ treatment. Id. ¶¶ 1, 3. When the hospital declined to compromise the lien amounts, the plaintiffs filed complaints asking the district court for an order voiding the hos-pital liens. Id. ¶ 4. The district court denied the motion, determining that it “lack[ed] equitable or discretionary power to void or reduce the amount of . . . the hospital

liens.” Id. ¶ 6. This Court affirmed, hold-ing that the district court could not order the hospital to reduce its lien where there was no dispute as to the validity of the lien amount. Id. ¶ 8.{17} The holdings announced in Guti-errez exceeded the scope of the dispute before the Court. The Gutierrez Court determined that “the New Mexico Con-stitution prohibits UNM Hospital from accepting a payment of less than the full amount of an undisputed legal obligation as a satisfaction,” Gutierrez, 1983-NMSC-016, ¶ 8. The Court added, “The State cannot compromise the amount owed to it unless a good faith dispute exists as to the amount of indebtedness or liability.” Id. Thus, although Gutierrez dealt with a situation in which the hospital did not agree to reduce the amount owed to it, the Gutierrez Court’s holding would apply even where a state hospital did agree to compromise with patient-debtors on its own behalf. See id.{18} The Gutierrez Court also held that in order for a state hospital to reduce a debt, there must be a good faith dispute as to the amount owed. Id. The Court apparently read this “good faith dispute” requirement into the definition of a proper court proceeding. See N.M. Const. art IV, § 32 (providing that no debts owed to the state shall “be extinguished except by the payment thereof into the proper treasury, or by proper proceeding in court”). How-ever, Section 32 makes no reference to a good faith dispute. What Section 32 does require is either payment into the treasury or a proper proceeding in court.{19} In support of this interpretation, the Gutierrez Court cited two cases from other jurisdictions–Wade v. Clemmons, 377 N.Y.S.2d 415 (Sup. Ct. 1975) and Dade County v. Bodie, 237 So.2d 553 (Fla. Dist. Ct. App. 1970). Both Wade and Bodie are out-of-state cases interpreting the hospi-tal lien acts of their respective states, not the New Mexico Constitution. Further, neither case holds that a state hospital cannot agree to reduce a debt owed to it without a good faith dispute as to liability. In Bodie, the hospital did not enter into an agreement to reduce the lien, and the court held that Florida’s hospital lien act gave no discretionary power to courts to reduce a hospital’s lien amount. 237 So.2d at 554. The court remanded the case for a determination of the validity and appro-priate amount of the lien. Id at 555. Under Bodie, a court cannot reduce a hospital lien in the absence of an agreement unless the

validity or amount of the lien is in dispute. This proposition has no application when, as here, the hospital has in fact agreed to compromise the debt owed to it.{20} On the other hand, in Wade, al-though there was no dispute concerning the amount owed by the plaintiff to the hospital, the hospital agreed to reduce the plaintiff ’s lien by $1,500. 377 N.Y.S.2d at 418. The plaintiff ’s attorney argued for a greater reduction, in the amount of $2,433.23, to which the hospital did not agree. Id. Although the Wade court held that it “d[id] not have discretionary power to impose a reduction of the hospital lien” to the full extent requested by the plaintiff ’s attorney, it ultimately entered an order reducing the lien “in accordance with [the hospital’s] consent.” Id. at 418, 420. Wade, therefore, supports the Gutierrez holding that a court cannot force the hospital to reduce the lien where the amount is not in dispute. However, it does not support the determination that a hospital cannot agree to compromise an amount owed to it be-cause the Wade court ultimately approved the reduction of the amount to the extent that the hospital agreed to compromise.{21} Thus, Bodie is factually distinguish-able from the case at hand because there the hospital did not agree to compromise the amount owed, and the conclusion in Wade is actually contrary to the proposi-tion for which it was cited in Gutierrez. The Gutierrez holding that “the New Mexico Constitution prohibits UNM Hospital from accepting payment of less than the full amount of an undisputed legal obliga-tion as a satisfaction,” 1983-NMSC-016, ¶ 8, which relies upon these two cases, is therefore unsupported by precedent. The Gutierrez holding that a court lacks the equitable or discretionary power to void or reduce public hospital liens without the hospital’s agreement and absent a good faith dispute is still good law. However, a public hospital does have the authority to compromise on its own accord. We hereby overrule Gutierrez to the extent that it holds that the State cannot compromise on debts owed to it unless there is a good faith dispute as to the amount owed or liability.{22} UNMH, as a state hospital, may compromise undisputed obligations with sick or indigent patient-debtors because it is constitutionally permitted to do so. Additional authority for such action can be found in Article IX, Section 14 of the New Mexico Constitution, which provides that, although the state is generally prohibited from “mak[ing] any donation to or in aid



http://www.nmcompcomm.us/Advance Opinionsof any person, . . . [n]othing in this section prohibits the state or any county or mu-nicipality from making provision for the care and maintenance of sick and indigent persons.”{23} “[C]onstitutional provisions should be read together and harmonized in their application if possible.” Denish v. Johnson, 1996-NMSC-005, ¶ 32, 121 N.M. 280, 910 P.2d 914 (internal quotation marks and citation omitted). As discussed, Article IV, Section 32 allows for the extinguishment of debt owed to the State where there is a proper court proceeding. Article IX, Section 14 specially allows for the provi-sion of aid for the care and maintenance of sick and indigent persons. When read together, Article IX, Section 14 and Article IV, Section 32 permit state government to compromise undisputed obligations with sick or indigent patient-debtors, so long as there is a proper court proceeding.{24} Accordingly, we hold that state hospitals may compromise with patient-debtors even when no dispute as to liability or amount owed is present, in accordance with state policies allowing aid to the sick or indigent. To prohibit state hospitals from compromising undisputed patient debts would serve only to require indigent patients seeking settlement to sue for relief rather than allowing them to negotiate with the hospital. This would result in unnecessary litigation and is contrary to state policy, as supported by Article IX, Section 14, and other state laws. See, e.g., Indigent Hospital and County Health Care Act, NMSA 1978, §§ 27-5-1 to -18 (1965, as amended through 2014).

2. The Requirement of a Proper Proceeding in Court Can Be Satisfied in This Case

{25} Article IV, Section 32 requires all obligations to the state to be satisfied by payment into the treasury or proper pro-ceeding in court. Article IV, Section 32 “is undoubtedly intended to prevent public officials from releasing debts justly owed to the state and to discourage collusion between public officials and private citi-zens.” N.M. Att’y Gen. Op. 69-69 (1969). Absent allegations of fraud, misrepresenta-tion, or mistake, it is to be presumed that these settlements are entered into based upon sufficient and proper facts and in the utmost good faith by counsel for the state. State Investment, 1925-NMSC-017, ¶ 16.{26} A proper court proceeding is satis-fied where a court reviews the agreement for issues of corruption, nepotism, etc., and issues an order approving a settlement agreement between a hospital and patient. Here, the federal district court has also reviewed the agreement for the presence of consideration in satisfaction of the pre-existing duty rule. The federal district court notes, and we agree, that it retains jurisdiction over the matter: the parties to the UNMH Agreement are before the federal district court, the federal district court has subject matter jurisdiction over the underlying dispute between Hem and the Toyota Defendants, and the disputed portion of the proceeds of the Toyota Agreement have been deposited into the registry of the federal district court. In the event that the federal district court determines that the UNMH Agreement

is enforceable against the proceeds of the Toyota Agreement, the federal district court has the power to issue the judgment contemplated by the “proper proceeding in court” language of Article IV, Section 32. The fact that no court has as yet entered an order approving and enforcing the UNMH Agreement is immaterial. We therefore agree with the federal district court that the present interpleader proceeding is a proper proceeding in court by which the UNMH Agreement may be approved, UNMH’s lien reduced, and Hem’s debt to UNMH extinguished.III. CONCLUSION{27} We conclude that the UNMH agree-ment is not prohibited by Article IV, Sec-tion 32 of the New Mexico Constitution. We answer the questions certified to this Court as follows: (1) the first clause of Ar-ticle IV, Section 32 is solely a limitation on the Legislature; and (2) the UNMH Agree-ment does not violate Article IV, Section 32 of the New Mexico Constitution. We overrule Gutierrez and hold that under Article IV, Section 32 a state hospital is permitted to compromise on a debt owed to it where there is payment into the trea-sury or a proper court proceeding.{28} IT IS SO ORDERED.

BARBARA J. VIGIL, Chief Justice

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



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


Opinion Number: 2015-NMSC-025

STATE OF NEW MEXICO, Plaintiff, ex rel., FRANK C. FOY and SUZANNE B. FOY, qui tam Plaintiffs,Plaintiffs-Petitioners and Cross-Respondents,

v.AUSTIN CAPITAL MANAGEMENT, LTD, AUSTIN CAPITAL MANAGEMENT GP CORPORATION, CHARLES W. RILEY,

BRENT A. MARTIN, DAVID E. FRIEDMAN, WILL JASON ROTTINGER, VICTORY CAPITAL MANAGEMENT, INC., KEYCORP, BEREAN CAPITAL, DUDLEY BROWN, TREMONT PARTNERS, INC., TREMONT CAPITAL MANAGEMENT, INC.,

TREMONT GROUP HOLDINGS, INC., OPPENHEIMER FUNDS, INC., GARY BLAND, DAVID CONTARINO, BRUCE MALOTT, MEYNERS + COMPANY, MARC CORRERA, ANTHONY CORRERA, SANDIA ASSET MANAGEMENT, ALFRED JACKSON,

DAVIS HAMILTON AND JACKSON, GUY RIORDAN, JUNIPER CAPITAL, EILEEN KOTECKI, DAN HEVESI, HENRY “HANK” MORRIS, JULIO RAMIREZ, PAUL CROSS, CROSSCORE MANAGEMENT, SDN INVESTORS, PSILOS GROUP,

ALBERT WAXMAN, JEFFREY KRAUSS, STEPHEN KRUPA, DAVID EICHLER, DARLENE COLLINS, WETHERLY CAPITAL GROUP, DAN WEINSTEIN, VICKY SCHIFF, QUADRANGLE GROUP, ALDUS EQUITY, SAUL MEYER, MARCELLUS TAYLOR,

MATTHEW O’REILLY, RICHARD ELLMAN, DEUTSCHE BANK, DIAMOND EDGE CAPITAL, MARVIN ROSEN, CARLYLE MEZZANINE PARTNERS, CARLYLE GROUP, DB INVESTMENT MANAGERS, TOPIARY TRUST, PARK HILL GROUP,

DAN PRENDERGAST, CATTERTON PARTNERS, BLACKSTONE GROUP, GOLD BRIDGE CAPITAL, DARIUS ANDERSON, KIRK ANDERSON, ARES MANAGEMENT, INROADS GROUP, CAMDEN PARTNERS, HFV, BARRETT WISSMAN, TAG,

AJAX INVESTMENTS, CLAYTON DUBILIER AND RICE, INTERMEDIA, LEO HINDERY, WILLIAM R. HOWELL, CABRERA CAPITAL, MARTIN CABRERA, CRESTLINE INVESTORS, JOHN DOE #1 and JOHN DOE #3 THROUGH #50,

Defendants-Respondents and Cross-PetitionersNo. 34,013 (filed June 25, 2015)

ORIGINAL PROCEEDINGS ON CERTIORARIJOHN WILLIAM POPE, District Judge

VICTOR R. MARSHALLVICTOR R. MARSHALL

& ASSOCIATES, P.C.Albuquerque, New Mexico

for Petitioners and Cross-Respondents

GREGG VANCE FALLICKFALLICKLAW, LTD.


MARTIN R. ESQUIVELESQUIVEL LAW FIRM, LLC


KATHERINE ANN BASHAMBASHAM & BASHAM, P.C.

Santa Fe, New Mexicofor Respondent and Cross-Petitioner

Bruce Malott

ANDREW G. SHULTZRODEY, DICKASON, SLOAN, AKIN

& ROBB, P.A.Albuquerque, New Mexcio

PETER L. SIMMONSFRIED, FRANK, HARRIS, SHRIVER &

JACOBSON, LLPNew York, New York

for Respondents and Cross-Petitioners Topiary Trust and DB Investment

Managers, Inc.

NORMAN F. WEISSSIMONE, ROBERTS & WEISS, P.A.

Albuquerque, New MexicoFor Respondent and

Cross-Petitioner David Contarino

STEPHEN S. HAMILTONMONTGOMERY & ANDREWS, P.A.

Santa Fe, New Mexicofor Respondent and

Cross-Petitioner Gary Bland

ERIKA ANDERSONTHE LAW OFFICES OF ERIKA E.

ANDERSONAlbuquerque, New Mexico

for Respondent and Cross-Petitioner Guy Riordan

Opinion

Petra Jimenez Maes, Justice{1} In this case, we address whether the retroactive application of the Fraud Against Taxpayers Act, NMSA 1978, Sec-tions 44-9-1 to -14 (2007) (“FATA” or “the Act”) violates the Ex Post Facto Clauses of

the United States and New Mexico Con-stitutions. See U.S. Const. art 1, § 10, cl. 1; N.M. Const. art. 2, § 19. We hold that FATA is constitutional. The treble damages under FATA are predominantly compensa-tory and may be applied retroactively to conduct that occurred prior to its effective date. We decline to resolve the issue of

whether the civil penalties awarded under FATA are punitive and violate ex post facto principles until there is a definitive amount awarded.BACKGROUND{2} This appeal concerns the second of two qui tam actions filed by former New Mexico Education Retirement Board



http://www.nmcompcomm.us/Advance Opinions(“ERB”) Chief Investment Officer Frank Foy and his wife Suzanne Foy (“Foys”), attacking the management of the invest-ment portfolios of the ERB and of the New Mexico State Investment Council (“SIC”). The Foys “allege that Defendants—who include Wall Street firms and investment advisors, as well as high-ranking state of-ficials—executed fraudulent schemes that led to the loss of hundreds of millions of dollars at the expense of the [SIC] and the [ERB]. ” State ex rel. Foy v. Austin Capital Mgmt., Ltd., 2013-NMCA-043, ¶ 2, 297 P.3d 357.{3} A qui tam action is “[a]n action brought under a statute that allows a private person to sue for a penalty, part of which the government . . . will receive.” Black’s Law Dictionary 1262 (7th ed. 1999). The Foys filed their first qui tam action, State ex rel. Foy v. Vanderbilt Capital Advisors, LLC, D-101-CV-2008-1895 (“Vanderbilt”), pursuant to FATA in the First Judicial District Court on July 14, 2008. That complaint included allega-tions of misconduct dating back to 2003, predating the enactment of FATA in 2007. Section 44-9-12(A) of FATA allows a qui tam plaintiff to bring a civil action for conduct that occurred prior to the effective date of that Act. District Judge Stephen Pfeffer issued a sua sponte order expressing concern “that there may be ex post facto implications arising from the retroactive application of the Act[.]” Fol-lowing briefing, the district court issued an order dismissing the Foys’ claims, finding that the retroactive application of FATA, as authorized by Section 44-9-12(A), was unconstitutional. The district court specifically pointed to the award of treble damages and concluded that the Act “is punitive in purpose or effect.” In order to save the statute, the district court severed the retroactive application language from Section 44-9-12(A), leaving the rest of the statute intact, including treble damages, but inapplicable to anything that occurred prior to 2007, which would exclude from this lawsuit most, if not all, of what alleg-edly occurred.{4} Three months after the complaint in Vanderbilt was unsealed, the Foys filed a complaint under FATA against Austin Capital Management and several other de-fendants also in the First Judicial District Court. After a series of recusals, excusals, and administrative assignments, all of the judges of the First Judicial District were excused. This Court appointed Judge John Pope to preside over the case.

{5} The Foys raised the retroactivity issue with Judge Pope, seeking a ruling that FATA is constitutional. In response, Defendants Park Hill Group, Blackstone Group, and Prendergast provided Judge Pope with a copy of Judge Pfeffer’s previ-ous ruling that the retroactive application of FATA is unconstitutional and asked for a similar ruling. On July 8, 2011, Judge Pope ruled that the retroactive ap-plication of FATA is unconstitutional and explicitly “adopt[ed] and incorporate[d] the reasoning and analysis” contained in Judge Pfeffer’s earlier decision. The Court of Appeals granted leave for the Foys to file an interlocutory appeal. The Court of Appeals affirmed “the district court’s legal conclusion that retroactive application of FATA is unconstitutional and the court’s decision to sever the retroactive aspects from the statute.” See Foy, 2013-NMCA-043, ¶ 52. This appeal and cross-appeal follow.DISCUSSIONI. The Attorney General’s Prior

Knowledge of Incriminating Information Does Not Bar the District Court From Proceeding in Austin Capital

{6} Before addressing the issue of the retroactivity of FATA, we first address the issue of subject matter jurisdiction raised by Cross-petitioner Bruce Malott. See Wilson v. Denver, 1998-NMSC-016, ¶ 8, 125 N.M. 308, 961 P.2d 153 (“Prior to ad-dressing the substantive issue certified for interlocutory appeal, we raise, sua sponte, the question whether the district court had subject matter jurisdiction over these election contests.”). Malott argues that the district court lacked subject matter juris-diction over the Foys’ second-filed FATA action, Austin Capital. Malott’s most sa-lient argument is that the district court was barred under FATA from hearing Austin Capital. See § 44-9-9(B) (“No court shall have jurisdiction over an action . . . against an elected or appointed state official . . . if the action is based on evidence or infor-mation known to . . . the attorney general when the action was filed.”) The district court tentatively rejected this argument. See Foy, 2013-NMCA-043, ¶ 4. The Court of Appeals declined to address the issue of subject matter jurisdiction, holding that “both arguments would benefit from factual developments and legal arguments to the court below.” Id. ¶ 5.{7} In determining whether a court has subject matter jurisdiction, we “ask whether [the matter before the court]

falls within the general scope of authority conferred upon such court by the con-stitution or statute.” State v. Chavarria, 2009-NMSC-020, ¶ 11, 146 N.M. 251, 208 P.3d 896 (alteration in original, internal quotation marks and citation omitted). “The source of a district court’s subject matter jurisdiction derives from the New Mexico Constitution.” Lu v. Educ. Trust Bd. of N.M., 2013-NMCA-010, ¶ 9, 293 P.3d 186. Under Article VI, Section 13 of the New Mexico Constitution, “[t]he district court shall have original jurisdic-tion in all matters and causes not excepted in this constitution, and such jurisdiction of special cases and proceedings as may be conferred by law . . . .” Id. (emphasis added). In other words, “New Mexico dis-trict courts are courts of general jurisdic-tion having the power to hear all matters not excepted by the constitution and those matters conferred by law.” Lyndoe v. D.R. Horton, Inc., 2012-NMCA-103, ¶ 12, 287 P.3d 357; see also Daniels Ins. Agency, Inc. v. Jordan, 1982-NMSC-148, ¶ 8, 99 N.M. 297, 657 P.2d 624 (“[T]he district courts have original jurisdiction over all cases other than those specifically excepted by the New Mexico Constitution and such ju-risdiction of special cases and proceedings as may be conferred by law . . . .” (internal quotation marks and citation omitted)).{8} Austin Capital falls within the general scope of authority conferred upon the district court by Article VI, Section 13 of the New Mexico Constitution because no provision in the New Mexico Constitu-tion specifically excepts it. The district court had subject matter jurisdiction over this action. The proviso in FATA that an action may not proceed against a State official “if the action is based on evidence or information known to . . . the attorney general when the action was filed,” § 44-9-9(B), is more in the nature of a manda-tory precondition that the plaintiff must satisfy to proceed with a qui tam action. Therefore, the question before the Court is not really one of jurisdiction, but rather whether the Foys’ pending qui tam action in Vanderbilt bars litigation in the second-filed qui tam action, Austin Capital, under FATA—based on prior knowledge of the Attorney General. We proceed to that is-sue.{9} Under FATA, a qui tam plaintiff is re-quired to disclose to the Attorney General “substantially all material evidence and in-formation the qui tam plaintiff possesses” at the time the complaint is filed. See § 44-9-5(C). The purpose of this requirement is



http://www.nmcompcomm.us/Advance Opinionsto give the Attorney General a chance to intervene in the action. See § 44-9-5(D) (giving the Attorney General 60 days to notify the court if it intends to intervene). This disclosure requirement also serves as a basis for the statutory bar found in Section 44-9-9(B) that prevents suit under FATA against an elected or appointed state official “if the action is based on evidence or information known to . . . the attorney general when the action was filed.” Id.{10} Section 44-9-9(B) places a limitation on the district court’s ability to entertain FATA actions against state officials. For an action to be barred under Section 44-9-9(B), the action must (1) be against a state official and (2) be “based on evidence or information known to . . . the attorney general when the action was filed.” See id. As we will explain below, the Foys’ action in Austin Capital meets the first require-ment of the statutory bar, but fails to satisfy the second.{11} As a preliminary matter, it is im-portant to note that Section 44-9-9(B) does not affect the Foys’ first filed qui tam action, Vanderbilt, a conclusion conceded by Malott. Second, Section 44-9-9(B) does not apply to any of the private party defendants in Austin Capital. Section 44-9-9(B) only bars actions against public officials such as “an elected or appointed state official, a member of the state legis-lature or a member of the judiciary.” See id. Therefore, Section 44-9-9(B) can only bar suit against the State official defen-dants in Austin Capital. The complaints in Vanderbilt and Austin Capital name the same state official defendants, including Malott. To determine whether these State official defendants are barred from suit in Austin Capital, we must decide whether Austin Capital is “based on evidence or information known to . . . the attorney general when the action was filed.” See § 44-9-9(B). In making such a determina-tion it is helpful to examine the statute’s historical underpinnings.{12} Section 44-9-9(B) is patterned after an analogous section of the federal False Claims Act which similarly bars certain types of defendants and certain types of claims. See 31 U.S.C. § 3730(e)(2)(A) (2014) (“No court shall have jurisdiction over an action brought . . . against a Mem-ber of Congress, a member of the judiciary, or a senior executive branch official if the action is based on evidence or information known to the Government when the ac-tion was brought.”). Section 3730(e)(2)(A) “[does] not present an absolute bar to qui

tam suits; it simply retained the pre-1986 ‘government knowledge’ exception with slightly different language.” See 1 John T. Boese, Civil False Claims and Qui Tam Actions § 4.03(A), at 4-171 (4th ed. 2011). “It was recommended by the [U.S.] Justice Department as an exception for those suits which might be politically motivated.” Id. at 4-172 (internal quotation marks omit-ted).{13} The “government knowledge bar” was enacted in response to the U.S. Su-preme Court’s decision in United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943). See Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 294 (2010) (“This amendment erected what came to be known as a Government knowledge bar.”); see also 1 Boese, supra, § 1.02, at 1-15. In Hess, qui tam plaintiff Marcus alleged a collusive bidding scheme by electrical contractors working on Public Works Administration projects in Penn-sylvania. See Hess, 317 U.S. at 539. Marcus purportedly discovered the alleged fraud by reading a criminal indictment previ-ously filed against the defendants. See id. at 545. The Justice Department argued that Marcus had not brought any new informa-tion to the government’s attention. See id. The U.S. Supreme Court upheld Marcus’s award, pointing out that the statute al-lowed suit to be brought “by any person” without “exception or qualification.” See id. at 546. The U.S. Supreme Court has since referred to the qui tam action in Hess as a “quintessential parasitic suit.” See Graham Cnty., 559 U.S. at 294 (internal quotation marks and citation omitted).{14} Following Hess, Congress amended the False Claims Act in 1943 to preclude qui tam actions “based upon evidence or information [already] in the possession of the United States, or any agency, officer or employee thereof, at the time such suit was brought.” See Graham Cnty., 559 U.S. at 294 (internal quotation marks and citation omit-ted). Therefore, “[once] the United States learned of a false claim, only the Govern-ment could assert its rights under the [False Claims Act] against the false claimant.” See id. (internal quotation marks and citation omitted). This amendment was designed to avoid more “parasitic” suits like Hess. See 1 Boese, supra, § 4.02(A), at 4-50. “The bar-riers set up in the 1943 Amendments led to decreased use of the qui tam provisions.” Id. § 1.02, at 1-15; see also Graham Cnty., 559 U.S. at 294 (“In the years that followed the 1943 amendment, the volume and efficacy of qui tam litigation dwindled.”).

{15} In 1986, Congress replaced the gov-ernment knowledge bar with the “public disclosure bar.” See id. at 294-95. Under the public disclosure bar, “[t]he court shall dis-miss an action or claim . . . if substantially the same allegations or transactions as al-leged in the action or claim were publicly disclosed.” See 31 U.S.C. § 3730(e)(4)(A). The purpose of the public disclosure bar is “to strike a balance between encourag-ing private persons to root out fraud and stifling parasitic lawsuits.” Graham Cnty., 559 U.S. at 295. In other words, “[t]he public disclosure bar is . . . chiefly designed to separate the opportunistic relator [qui tam plaintiff] from the relator [qui tam plaintiff] who has genuine, useful informa-tion that the government lacks.” Grynberg ex rel. United States v. Exxon, 566 F.3d 956, 961 (10th Cir. 2009). “[T]he point of the public disclosure test is to determine whether the qui tam lawsuit is a para-sitic one.” United States ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1049 (10th Cir. 2004) (alteration in original, internal quotation marks and citation omitted). We determine that this overarching concern should guide our determination regarding whether Austin Capital is based upon in-formation known to the Attorney General.{16} We find the cases construing FATA’s federal analogue, the False Claims Act, helpful in understanding the context and purpose of FATA. See Akins v. United Steel Workers of Am., 2010-NMSC-031, ¶ 15, 148 N.M. 442, 237 P.3d 744 (“In develop-ing a body of state common law, we may look to federal law for guidance where it is persuasive and consistent with our state laws and policies.”). Although cases like Graham County, Exxon, and Praxair do not interpret the federal counterpart to Section 44-9-9(B), they interpret the complementary public disclosure bar, which aids in understanding the purpose and context of FATA.{17} These cases indicate a legislative intent to prohibit “parasitic” qui tam plaintiffs while also providing an incen-tive for meritorious qui tam plaintiffs to pursue their claims. This conclusion is especially true in light of the so-called “first to file” bar. See 31 U.S.C. § 3730(b)(5) (“When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.”); see also § 44-9-5(E) (“When a person brings an action pursuant to this section, no person other than the attorney general on behalf



http://www.nmcompcomm.us/Advance Opinionsof the state may intervene or bring a re-lated action based on the facts underlying the pending action.”). This bar “functions both to eliminate parasitic plaintiffs who piggyback off the claims of a prior relator, and to encourage legitimate relators to file quickly by protecting the spoils of the first to bring a claim.” See Exxon, 566 F.3d at 961.{18} Applying these principles, we hold that the district court is not barred from hearing the case under FATA. The Foys’ second FATA action, Austin Capital, is not barred under Section 44-9-9(B) be-cause Austin Capital is not a “parasitic” suit like the one in Hess in which the “opportunistic” qui tam plaintiff simply repeated allegations made by someone else in a federal indictment. First, as al-leged in the complaint, Mr. Foy as former Chief Investment Officer of the ERB may have “genuine, useful information that the government lacks.” See Exxon, 566 F.3d at 961. He is not simply repeating someone else’s allegations.{19} Second, the statutory bar was de-signed to prohibit qui tam plaintiffs from piggybacking off the claims of a prior relator in an effort to unfairly recover a portion of the prior relator’s damage award. Here, the Foys are the plaintiffs in both cases. It would be an absurd con-struction of FATA to hold that the Foys are piggybacking off their own prior claims in an effort to unfairly recover a portion of their potential damage award in Vander-bilt. Furthermore, barring Austin Capital might discourage future qui tam plaintiffs from turning up wrongdoing discovered after their case was filed. Finally, the re-cord reflects that the Attorney General did not raise an objection to the filing of Austin Capital and authorized the Foys to proceed, stating that “the best interests of the State of New Mexico are served by uncovering, as soon as possible, all of the facts relating to the matters stated in the complaint.” Therefore, we disagree with Malott and hold that Austin Capital is not barred by being “based on evidence or information known to . . . the attorney general when the action was filed.” See § 44-9-9(B).II. The Case is Not Barred by Claim

Splitting{20} Malott argues that in filing Austin Capital, the Foys are engaging in claim splitting. “It is axiomatic that piecemeal litigation is not favored by the courts.” Callaway v. Ryan, 1960-NMSC-088, ¶ 21, 67 N.M. 283, 354 P.2d 999. The rule against

claim splitting “is grounded upon public policy designed to avoid a multiplicity of suits.” United Nuclear Corp. v. Fort, 1985-NMCA-049, ¶ 22, 102 N.M. 756, 700 P.2d 1005. “The rule against splitting a cause of action is an equitable one whose applica-tion is left to judicial discretion based on the factual circumstances of individual cases.” 1A C.J.S. Actions § 225 (2015).{21} In arguing against claim splitting, Malott cites primarily to New Mexico cases pertaining to res judicata, or claim preclu-sion. However, “[t]he rules of res judicata are applicable only when a final judgment is rendered.” See Restatement (Second) of Judgments § 13 (1982). Because a final judgment on the merits has not been rendered in Vanderbilt, res judicata does not apply to Austin Capital. We therefore decline to dismiss Austin Capital on the basis of claim splitting.{22} Nevertheless, Malott has identified a genuine concern regarding the burden on defendants in multiple suits and the additional burden placed on the judicial system by these multiple suits. See Con-cerned Residents of Santa Fe North, Inc. v. Santa Fe Estates, Inc., 2008-NMCA-042, ¶ 17, 143 N.M. 811, 182 P.3d 794 (“The res judicata doctrine is invoked to protect litigants from the burden of multiple litiga-tion and to promote both judicial economy and the policy favoring reliance on final judgments by minimizing the possibility of inconsistent decisions.”). We recognize that in allowing Austin Capital to proceed, the Foys will have two FATA actions pend-ing at the same time in the same judicial district.{23} To promote judicial economy and minimize the possibility of inconsistent decisions, we hold that the Foys’ FATA complaints should be consolidated and heard in a single action. Therefore, pur-suant to our power of superintending control, see N.M. Const. art. VI, § 3, we consolidate Austin Capital and Vanderbilt and will appoint a pro-tem judge to over-see the consolidated action. See Maestas v. Hall, 2012-NMSC-006, ¶ 9, 274 P.3d 66 (consolidating several redistricting cases and appointing a pro-tem judge to preside over the litigation). Although the Foys have identified additional cases that may be consolidated, we leave that deter-mination to the discretion of the district court. See Rule 1-042(A) NMRA (“When actions involving a common question of law or fact are pending within a judicial district, the court may . . . order all the ac-tions consolidated; and it may make such

orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”).III. The Retroactive Application of

FATA is Constitutional{24} The central question before this Court is whether the retroactive applica-tion of FATA is unconstitutional.A. FATA{25} FATA prohibits knowingly present-ing false or fraudulent claims for payment from the State and conspiring to defraud the State. See § 44-9-3(A). FATA was en-acted in 2007, but includes a provision that explicitly authorizes retroactive claims. Section 44-9-12(A) states:

A civil action pursuant to the Fraud Against Taxpayers Act may be brought for conduct that occurred prior to the effective date of that act, but not for con-duct that occurred prior to July 1, 1987.

The statutory penalties for violating FATA include:

(1) three times the amount of damages sustained by the state because of the violation;(2) a civil penalty of not less than five thousand dollars ($5,000) and not more than ten thousand dollars ($10,000) for each viola-tion;(3) the costs of a civil action brought to recover damages or penalties; and(4) reasonable attorney fees, in-cluding the fees of the attorney general or state agency counsel.

See § 44-9-3(C). FATA closely tracks the longstanding federal False Claims Act. Compare § 44-9-3, with 31 U.S.C. § 3729 (2014). Like the federal Act, FATA allows the Attorney General or a qui tam plaintiff, on behalf of the State, to bring a civil action for violation of the Act. See §§ 44-9-4(A), 44-9-5. FATA authorizes a qui tam plaintiff to recover up to thirty percent of the damage award as well as reasonable expenses incurred in the ac-tion and reasonable attorneys’ fees. See § 44-9-7. This award serves as an incentive to private individuals to act on behalf of the public good by bringing the suit. See Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 769-70 (2000). The State is entitled to the remain-der of the damage award (all proceeds not awarded to the qui tam plaintiff) to fully reimburse the State for the false claim paid. See § 44-9-7(E).



http://www.nmcompcomm.us/Advance OpinionsB. Retroactive Laws and the Ex Post

Facto Clause{26} The United States and New Mexico Constitutions prohibit the Legislature from enacting ex post facto laws. See U.S. Const. art. 1, § 10, cl. 1; N.M. Const. art. 2, § 19. “‘The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation.’” State v. Ordunez, 2012-NMSC-024, ¶ 14, 283 P.3d 282 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994)). “The prohibition does not apply to penalties that are considered re-medial in nature.” Foy, 2013-NMCA-043, ¶ 11. Defendants bear the burden of proving that FATA is unconstitutional beyond all reasonable doubt. See State v. Druktenis, 2004-NMCA-032, ¶ 15, 135 N.M. 223, 86 P.3d 1050. (“In regard to Ex Post Facto Clause . . . constitutional attacks, there ex-ists a presumption of constitutionality, and the party attacking the constitutionality of the statute has the burden of proving the statute is unconstitutional beyond all reasonable doubt.”).{27} In this case, Defendants argue that the sanctions (money damages) authorized under FATA are penal in nature. And, therefore, imposing these sanctions for conduct that occurred prior to the effective date of FATA would be retroactive applica-tion of penal legislation, a direct violation of the Ex Post Facto Clauses.C. The Legislature Intended FATA to

Apply Retroactively{28} To determine whether a sanction is punitive and thus violative of the Ex Post Facto Clause, we first look to the “government’s purpose in enacting the legislation.” City of Albuquerque ex rel. Albuquerque Police Dep’t v. One (1) 1984 White Chevy Ut., 2002-NMSC-014, ¶ 11, 132 N.M. 187, 46 P.3d 94 (internal quo-tation marks and citation omitted). “In assessing Legislative intent, the reviewing court looks first to the plain language of the statute, giving the words their or-dinary meaning, unless the Legislature indicates a different one was intended.” Zhao v. Montoya, 2014-NMSC-025, ¶ 18, 329 P.3d 676 (internal quotation marks and citation omitted). However, “we look not only to the language used in the statute, but also to the object sought to be accomplished and the wrong to be remedied.” Starko v. Presbyterian Health Plan, Inc., 2012-NMCA-053, ¶ 20, 276 P.3d 252 (internal quotation marks and citation omitted), rev’d on other grounds by Starko v. N.M. Human Servs. Dep’t, 2014-NMSC-033, ¶¶ 2, 42, 333 P.3d 947.

{29} The specific legislative designation of FATA proceedings and penalties as “civ-il” indicates that the Legislature intended to craft a civil statute. FATA consistently uses the term “civil action” when referring to the proceedings brought under the stat-ute. See § 44-9-4(A) (allowing the Attorney General to “bring a civil action . . . pursu-ant to the Fraud Against Taxpayers Act”); § 44-9-4(B) (allowing the Attorney General to “delegate the authority to . . . bring a civil action to the state agency to which a false claim was made”); § 44-9-5(A) (allowing a qui tam plaintiff to “bring a civil action for a violation of Section 3 of the Fraud Against Taxpayers Act on behalf of the person and the state” (internal citation omitted)); § 44-9-12(A) (“A civil action pursuant to the Fraud Against Taxpayers Act may be brought at any time.” (internal citation omitted)). Furthermore, FATA is placed within the section of the New Mexico Statutes Annotated entitled “Mis-cellaneous Civil Law Matters.” See §§ 44-9-1 to -14; Kansas v. Hendricks, 521 U.S. 346, 361 (1997) (“Kansas’ objective to create a civil proceeding is evidenced by its place-ment of the Act within the Kansas probate code, instead of the criminal code.”). In addition, not a single section of FATA specifies or punishes criminal conduct. See State v. Kirby, 2003-NMCA-074, ¶ 25, 133 N.M. 782, 70 P.3d 772 (finding that the Securities Act has a remedial purpose in part because “only one section specifies criminal conduct”). Finally, the penalties imposed under FATA are designated as “civil.” See § 44-9-3(C)(2).{30} We recognize that “in New Mexico, the fact that the Legislature . . . chose[] to label a proceeding ‘civil’ or ‘criminal’ is not dispositive of the true nature of that pro-ceeding,” see State v. Nuñez, 2000-NMSC-013, ¶ 46, 129 N.M. 63, 2 P.3d 264, and cannot “be utilized to defeat the applicable protections of constitutional law.” See N.M. Taxation & Revenue Dep’t v. Whitener, 1993-NMCA-161, ¶ 12, 117 N.M. 130, 869 P.2d 829 (discussing with approval the holding of United States v. Halper, 490 U.S. 435, 447-48 (1989), abrogated by Hudson v. United States, 522 U.S. 93, 95, 100–03 (1997)).{31} Looking beyond the “civil” label to the overall purpose of the statute, we deter-mine that the Legislature intended FATA to be remedial in nature. Consistent with other remedial statutes, FATA compen-sates the State for losses incurred as a result of fraud and encourages qui tam plaintiffs to bring civil actions to root out fraud. See

§ 44-9-7(B) (entitling qui tam plaintiff to up to thirty percent of the proceeds of the action or settlement), (E) (“The state is entitled to all proceeds collected in an action or settlement not awarded to a qui tam plaintiff.”); see also Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 30, 147 N.M. 583, 227 P.3d 73 (stating that the Unfair Practices Act which allows treble damages for persons damaged by unfair, deceptive, and unconscionable trade practices “constitutes remedial legislation”); Kirby, 2003-NMCA-074, ¶ 23 (“The Securities Act . . . has remedial purpose. . . . Its . . . provisions are aimed at protecting investors against unfair, decep-tive, and fraudulent practices in the sale of securities.”).{32} It is clear that the Legislature in-tended FATA to be a civil, remedial statute. However, even when “the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so puni-tive either in purpose or effect as to negate the State’s intention to deem it civil.” Smith v. Doe, 538 U.S. 84, 92 (2003) (internal quotation marks and citation omitted, internal alteration omitted).

[T]he court must determine whether the sanction established by the legislation was sufficiently punitive in its effect that, on balance, the punitive effects outweigh the remedial effect. Al-though a civil penalty may cause a degree of punishment for the defendant, such a subjective effect cannot override the legislation’s primarily remedial purpose.

White Chevy, 2002-NMSC-014, ¶ 11 (in-ternal citations omitted).D. The Civil Remedies under FATA

are Predominantly Compensatory{33} The actual sanctions imposed under FATA include liability for the costs of a civil action and reasonable attorneys’ fees for both the State and the qui tam plaintiff; a civil penalty of between five thousand and ten thousand dollars per violation; and “three times the amount of damages sustained by the state.” See § 44-9-3(C)(1). With regard to the retroactive effect of an award of the costs of bringing the qui tam action and attorneys’ fees, we agree with the Court of Appeals that both “would fall under the rubric of compensating for gov-ernment losses.” Foy, 2013-NMCA-043, ¶ 28. We therefore turn to the retroactive effect of FATA’s treble damages and civil penalties. We hold that treble damages



http://www.nmcompcomm.us/Advance Opinionsunder FATA are predominantly compensa-tory and may be applied retroactively. We hold that the nature of the civil penalties under FATA cannot be determined until after penalties are assessed.1. Treble Damages{34} Historically, New Mexico has fol-lowed the seven-factor test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963), to determine whether a statute has a punitive effect. See Drukte-nis, 2004-NMCA-032, ¶ 30 (“[O]ur New Mexico Supreme Court referred to the Mendoza-Martinez framework as ‘the test’ in determining whether a statute is intended as punitive rather than remedial.” (quoting White Chevy, 2002-NMSC-014, ¶ 11)); see also State v. Block, 2011-NMCA-101, ¶¶ 36-46, 150 N.M. 598, 263 P.3d 940 (analyzing civil penalty under Voter Action Act); Kirby, 2003-NMCA-074, ¶¶ 27-39 (analyzing civil penalty under Securities Act). These factors are:

1) whether the sanction involves an affirmative disability or re-straint;2) whether it has historically been regarded as a punishment;3) whether it comes into play only on a finding of scienter;4) whether its operation will promote the traditional aims of punishment—retribution and deterrence;5) whether the behavior to which it applies is already a crime;6) whether an alternative purpose to which it may rationally be con-nected is assignable to it; and7) whether it appears excessive in relation to the alternative purpose assigned.

Druktenis, 2004-NMCA-032, ¶ 31. While these factors may “provide useful guide-posts,” Hudson, 522 U.S. at 99, they are “neither exhaustive nor dispositive,” Smith, 538 U.S. at 97 (internal quotation marks and citation omitted).{35} In regard to the nature of treble damages, recent United States Supreme Court opinions do not refer to the Men-doza-Martinez factors, but simply examine whether such damages are predominantly compensatory or predominantly punitive. See, e.g. Pacificare Health Sys., Inc. v. Book, 538 U.S. 401, 405 (2003) (acknowledg-ing that U.S. Supreme Court cases “have placed different statutory treble damages provisions on different points along the spectrum between purely compensa-tory and strictly punitive awards”); Cook

Cnty. v. United States ex rel. Chandler, 538 U.S. 119, 129-33 (2003) (acknowledging that treble damages under the FCA have compensatory and punitive traits, but concluding that, on balance, such damages are not essentially punitive). In doing so, the Court has looked largely at the purpose of the legislation and the purpose of the treble damages. See, e.g., Agency Holding Corp. v. Malley-Duffy & Assocs., Inc., 483 U.S. 143, 151 (1987) (holding that RICO is “designed to remedy economic injury by providing for the recovery of treble dam-ages, costs, and attorney’s fees.”); Am. Soc’y of Mech. Eng’rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 575-76 (1982) (holding that an antitrust private action “was created primarily as a remedy for the victims of antitrust violations . . . ” and that “treble damages serve as a means of deterring antitrust violations and of compensat-ing victims”); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485 (1977) (holding the treble damages under the Clayton Act “is designed primarily as a remedy”).{36} Given recent U.S. Supreme Court precedent, we believe this restorative ap-proach is more appropriate in determining the retroactive effect of FATA. Therefore, if the primary purpose of treble damages un-der FATA is punitive, then they should be not be applied retroactively. Cf. Ordunez, 2012-NMSC-024, ¶ 14 (“The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation.” (internal quotation marks and citation omitted)). If the primary purpose of treble damages is remedial, then they should be upheld. Cf. Foy, 2013-NMCA-043, ¶ 11 (“The prohi-bition does not apply to penalties that are considered remedial in nature.”).{37} The U.S. Supreme Court has passed upon the nature of treble damages under the analogous federal FCA, see 31 U.S.C. § 3729(a)(1) (holding violators liable for civil penalties “plus 3 times the amount of damages which the Government sustains because of the act of that person”), on at least two occasions. In Vermont Agency of Natural Resources, the Court held that a state was not a “person” for purposes of qui tam liability under the FCA. See 529 U.S. at 787-88. Although this case did not analyze the ex post facto implications of treble damages under the FCA, the Court was required to address whether treble damages are punitive in nature in determining whether states are subject to qui tam liability under the FCA. See id. at 783, 84-85 (“Several features of the current

statutory scheme . . . support the conclu-sion that States are not subject to qui tam liability [including treble damages].”). The Court concluded that “the FCA imposes damages that are essentially punitive in nature, which would be inconsistent with state qui tam liability in light of the pre-sumption against imposition of punitive damages on governmental entities.” Id. at 784-85. The Court stated, “‘[t]he very idea of treble damages reveals an intent to punish past, and to deter future, unlawful conduct, not to ameliorate the liability of wrongdoers.’” See id. at 786 (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639 (1981)). While these state-ments indicate that treble damages under FATA may be similarly punitive, the U.S. Supreme Court has since distinguished Vermont Agency of Natural Resources.{38} In Cook County, a unanimous U.S. Supreme Court held that municipal cor-porations are “persons” for purposes of qui tam liability under the FCA. The municipal defendant argued that it was not subject to liability in part because the FCA imposes damages that are punitive in nature. See 538 U.S. at 129. The Court disagreed, distinguishing its earlier statements from Vermont Agency of Natural Resources.: “While the tipping point between payback and punishment defies general formula-tion, being dependent on the workings of a particular statute and the course of particular litigation, the facts about the FCA show that the damages multiplier has compensatory traits along with the punitive.” Cook County, 538 U.S. at 130.{39} We hold that the facts about FATA demonstrate that its treble damages feature possesses predominantly compensatory traits. Under FATA, one-third of the treble damages award is allocated to compensate the government for its loss. See § 44-9-7(E)(1) (requiring “proceeds in the amount of the false claim paid” to be returned to the fund from which it came). This portion of the damage award is, by definition, compensatory. See Black’s Law Dictionary 394 (7th ed. 1999) (defining “compensa-tory damages” as “[d]amages sufficient in amount to indemnify the injured person for the loss suffered.”).{40} Up to another thirty percent of the damage award is allocated to reward the qui tam plaintiff for exposing fraud and corruption in state government. See § 44-9-7(B) (entitling qui tam plaintiff to between 25 and 30 percent of the proceeds of the action or settlement if the State does not proceed with an action brought by a qui



http://www.nmcompcomm.us/Advance Opinionstam plaintiff and the State prevails in the action). The importance of this potential qui tam award under FATA should not be overlooked. Both this Court and the U.S. Supreme Court have held that a qui tam award as part of a treble damages scheme is remedial in nature. In Denison v. Tocker, 1951-NMSC-022, ¶¶ 11, 17, 55 N.M. 184, 229 P.2d 285, we held that the federal Housing and Rent Act, 50 U.S.C. Appendix, 1895 (1947, amended 1949) “is highly remedial, and the plain purpose of . . . authorizing recovery of three times the amount of an overcharge was to enlist the help of tenants by soliciting their aid in filing suits against overcharging landlords.” In Cook County, the U.S. Supreme Court also stressed the importance of a qui tam award within the treble damages scheme of the FCA. According to the Court:

The most obvious indication that the treble damages ceiling has a remedial place under this statute is its qui tam feature with its pos-sibility of diverting as much as 30 percent of the Government’s recovery to a private relator who began the action. In qui tam cases the rough difference between double and triple damages may well serve not to punish, but to quicken the self-interest of some private plaintiff who can spot violations and start litigating to compensate the Government, while benefiting himself as well. The treble feature thus leaves the remaining double damages to provide elements of make-whole recovery beyond mere recoup-ment of the fraud.

538 U.S. at 131(citation omitted). There-fore, we hold that the qui tam provisions of FATA are compensatory.{41} Having determined that actual damages and a potential qui tam award under FATA are compensatory, it fol-lows that at least two-thirds of the treble damages under FATA are compensatory. See Hess, 317 U.S. at 551-52 (holding that “the chief purpose” of the earlier version of the FCA “was to provide for restitution to the government of money taken from it by fraud, and that the de-vice of double damages plus a specific sum was chosen to make sure that the government would be made completely whole.”). However, as Cook County suggests, the remaining approximately one-third of the treble damages under FATA also serve remedial purposes by

encouraging more qui tam plaintiffs to root out fraud. We agree.{42} Our conclusion is further bolstered by the allocation of the remaining dam-ages under FATA. Under FATA, half of the remaining one-third of the damage award is allocated to fund the attorney general’s anti-corruption efforts. See § 44-9-7(E)(3). The other half is deposited in the state’s general fund. See id. “There is no question that some liability beyond the amount of the fraud is usually necessary to compensate the Government completely for the costs, delays, and inconveniences occasioned by fraudulent claims.” Cook County, 538 U.S. at 130 (internal quotation marks and citations omitted). Further-more, the government’s injury includes “not merely the amount of the fraud itself, but also ancillary costs, such as the costs of detection and investigation, that routinely attend the Government’s efforts to root out deceptive practices at the public purse.” Id. at 130-131 (quoting Halper, 490 U.S. at 445 (internal quotation marks omitted)). Allocating a portion of the recovery to the attorney general helps to offset these costs. See NMSA 1978, § 44-9-7(E)(3)(a).{43} Finally, when people or businesses commit fraud against the State, it deprives taxpayers of the use of funds for essential government services. The loss of use of money to fraudulent claims are the types of consequential damages not otherwise recoverable under FATA, which justify the conclusion that treble damages under FATA are predominantly compensatory. As noted by the U.S. Supreme Court in Cook County, “[t]he treble damages pro-vision [under the FCA] was, in a way, adopted by Congress as a substitute for consequential damages.” 538 U.S. at 131 n.9. In a similar fashion, allocating a por-tion of the treble damages award under FATA to the general fund helps address consequential damages resulting from fraud. See NMSA 1978, § 44-9-7(E)(3)(b).{44} In conclusion, we hold that treble damages under FATA are predominantly compensatory. As such, treble damages do not violate the ex post facto clause and may be awarded for conduct occurring prior to the effective date of FATA.2. Civil Penalties{45} A person who violates FATA is liable for “a civil penalty of not less than five thousand dollars ($5,000) and not more than ten thousand dollars ($10,000) for each violation.” § 44-9-3(C)(2). Civil pen-alties are deposited in the current school fund. See § 44-9-7(E)(2). In terms of the

retroactive effect of civil penalties, the Court of Appeals concluded that, “in the absence of compensatory purposes, [civil penalties] exhibit the qualities of deter-rence and retribution intended to punish the offender.” Foy, 2013-NMCA-043, ¶ 28. Because the civil penalties under FATA possess predominantly compensatory purposes, we disagree.{46} As a general matter, “monetary assessments are traditionally a form of civil remedy.” See Kirby, 2003-NMCA-074, ¶ 31 (internal quotation marks and citation omitted). “[N]either money penalties nor debarment has historically been viewed as punishment.” Hudson, 522 U.S. at 104. How-ever, the imposition of monetary penalties has a deterrent purpose. See State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, ¶ 38, 120 N.M. 619, 904 P.2d 1044 (“[M]onetary sanctions, such as fines or forfeitures, are qualitatively different from other types of administrative sanctions because of their distinctly punitive purposes.”); see also Hud-son, 522 U.S. at 105 (“Finally, we recognize that the imposition of both money penalties and debarment sanctions will deter others from emulating petitioners’ conduct, a traditional goal of criminal punishment.”). Nevertheless, “[a]lthough a civil penalty may cause a degree of punishment for the defendant, such a subjective effect cannot override the legislation’s primarily remedial purpose.” White Chevy, 2002-NMSC-014, ¶ 11. In addition, “[deterrence] may be a valid objective of a regulatory statute,” Id. ¶ 14 (internal quotation marks and citation omitted), and “the mere presence of this purpose is insufficient to render a sanction criminal, as deterrence may serve civil as well as criminal goals.” Hudson, 522 U.S. at 105 (internal quotation marks and citation omitted); see also Schwartz, 1995-NMSC-069, ¶ 37 (“[T]he fact that the regulatory scheme has some incidental deterrent ef-fect does not render the sanction punish-ment . . . .”). Therefore, a monetary sanction has a “deterrent or retributive purpose if it is not designed to compensate the government for its losses.” Id. ¶ 38.{47} The U.S. Supreme Court has found that civil penalties under an earlier version of the federal FCA are compensatory. In Hess, the U.S. Supreme Court held that

“the chief purpose of the statutes here was to provide for restitu-tion to the government of money taken from it by fraud, and that the device of double damages plus a specific [penalty] sum [$2,000 per claim] was chosen to make



http://www.nmcompcomm.us/Advance Opinionssure that the government would be made completely whole.”

317 U.S. at 551-52. In Vermont Agency of Natural Resources, however, the U.S. Su-preme Court stated that the earlier version of the Fraud Claims Act which imposed a civil penalty of only $2,000 per claim was remedial rather than punitive, while the current version authorizing civil penalties of up to $10,000 per claim is punitive. 529 U.S. at 784-85. The Supreme Court was not clear, however, where on the given spectrum ($2,000 to $10,000) the penalty moves from remedial in effect to punitive.{48} The New Mexico appellate courts have found civil penalties in the amount of $5,000 to be predominantly restorative. In Kirby, the New Mexico Securities Division assessed $75,000 in fines against the defen-dant for violations of the former New Mex-ico Securities Act. See 2003-NMCA-074, ¶ 5. The former Act authorized that the director of the Securities Division to “issue an order against an applicant, licensed per-son or other person who violates the act, imposing a civil penalty up to a maximum of five thousand dollars ($5,000) for each

violation.” § 58–13B–37(B)(4) (1993). The Court of Appeals “conclude[d] that the civil penalty imposed upon Defendant in this matter was not sufficiently punitive in its effect that, on balance, the punitive ef-fect outweighed its remedial effect.” Kirby, 2003-NMCA-074, ¶ 39.{49} Turning specifically to FATA, the imposed penalty ranges from $5,000 to $10,000 per violation, leaving the exact award to the discretion of the trial judge. § 44-9-3(C)(2). It is, therefore, conceivable that the amount awarded in civil penalties could be punitive in effect, particularly if the trial judge awards the maximum $10,000 per violation. See Vt. Agency of Natural Res., 529 U.S. at 785; see also Hud-son, 522 U.S. at 103 (“The Eighth Amend-ment protects against excessive civil fines, including forfeitures.”). It is equally con-ceivable that a lesser award would not be considered punitive. It is not practical to make that determination without know-ing the actual amount assessed with full briefing on appeal addressed to a specific dollar figure. See Boese, supra, § 3.06(D) (“While a constitutional challenge to dis-

proportionate damages and penalties is a legitimate issue to be raised in many FCA cases, the issue normally cannot be deter-mined until after the trial verdict regarding actual damages.”). We therefore decline to resolve the issue of whether the civil penal-ties awarded under FATA are punitive and violate ex post facto principles until there is a definitive amount awarded.CONCLUSION{50} We hold that FATA is constitutional. The judgment of the district court is af-firmed in part and reversed in part. We remand the consolidated matter to the district court for further proceedings consistent with this Opinion.{51} IT IS SO ORDERED.

PETRA JIMENEZ MAES, Justice

WE CONCUR:RICHARD C. BOSSON, JusticeEDWARD L. CHÁVEZ, JusticeCHARLES W. DANIELS, JusticeM. MONICA ZAMORA, JudgeSitting by designation



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ClassifiedPositions

Associate AttorneyChapman and Charlebois, P.C. is seeking an experienced insurance defense attorney to join our litigation team, providing legal analysis, representation and advice to local and national clients. Attorney must have 3+ years of insurance defense experience and be licensed in NM. Please submit resume and sal-ary requirements to: [email protected].

AttorneysThe Law Office of J. Douglas Compton is seeking 2 Attorneys with a minimum of 1-5 years’ experience in personal injury litigation or 5 years’ litigation experience, to work in a busy insurance defense practice. Job require-ments include: A license to practice law in good standing in New Mexico and current on all CLE requirements; Experience, with auto, truck accidents, and uninsured, under-insured motorists’ cases; Demonstrated trial ability in the State of New Mexico is needed with experience in Bernalillo County Courts preferred; Must be able to travel to attend trials, arbitration, mediations and hearings; Attorney will defend lawsuits against GEICO insureds and represent GEICO in UM/UIM suits in all courts of NM; Must be computer proficient and be able to use a keyboard and a mouse. Position is commensurate with experience. Please submit your application to Careers.geico.com.

Associate AttorneyRay McChristian & Jeans, P.C., an insurance defense firm, is seeking a hard-working as-sociate attorney with 5 years of experience in medical malpractice, insurance defense, in-surance law, and/or civil litigation. Excellent writing and communication skills required. Competitive salary, benefits, and a positive working environment provided. Please sub-mit resume, writing sample and transcripts to [email protected].

Advanced/Senior/Expert AttorneyLOCATION: Albuquerque; MINIMUM EDUCATION AND/OR EXPERIENCE: Juris doctorate degree from an accredited law school, with a minimum of 3 to 10 years of experience in the actual practice of law, with a focus on public utility regulatory law. Experience in administrative law, util-ity regulation, transactions, and litigation highly desired. Must be licensed to practice law in New Mexico within one year of hiring date. Salary and the position for which an applicant will be considered are dependent on the applicant’s qualifications. PURPOSE OF POSITION: Will act as regulatory counsel in electric utility matters for regulated public utility. Must be qualified to manage regula-tory proceedings, complex litigation and legal transactions involving the Company. Applicant must work as part of a team. Must have demonstrated ability to advise officers, managers, and internal business units on regulatory issues affecting corporate report-ing, transactions and planning. Responsible for supervising outside counsel on regulatory and business matters, and developing and advising on legal and litigation strategies for such matters. PNM Resources and its affili-ates are Equal Opportunity/Affirmative Ac-tion employers. Women, minorities, disabled individuals and veterans are encouraged to apply. Applications must be submitted online at http://pnmresources.com/careers.cfm no later than November 10, 2015.

Criminal Justice AdvocateThe American Civil Liberties Union (ACLU) of New Mexico seeks a full-time Criminal Justice Advocate based in Albuquerque. The responsibility of the Criminal Justice Advo-cate will be to develop and implement plans to change laws, regulations, policies, and procedures that impact corrections and law enforcement in New Mexico. This involves data-gathering and research; forming alli-ances with strategic partners; mobilizing and organizing constituent support of ACLU-NM’s policy positions; lobbying government officials and legislative bodies; and represen-tation of the ACLU-NM’s positions in public forums. For the full position announcement and how to apply, please go to: https://www.aclu-nm.org/job-announcement-criminal-justice-advocate/2015/10/

Associate AttorneyThe Jones Firm in Santa Fe is seeking an associate attorney with one to seven years’ experience as a practicing attorney or judicial clerk to join our practice in the areas of labor and employment law, and commercial and personal injury litigation. We are looking for attorneys with excellent research and writ-ing skills. The Jones Firm offers competitive compensation and benefits. Please provide a resume and references to [email protected] before November 15, 2015.

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 Dianna Luce, District Attorney, 301 N. Dalmont Street, Hobbs , NM 88240-8335 or e-mail to [email protected].

Experienced Business Attorney We are Law 4 Small Business, P.C. (L4SB), we’re based in Albuquerque, and we’re growing like gang-busters. L4SB is a unique brand with a diverse client base, dynamic office and tech savvy approach. Our goal is to grow nationwide and then worldwide with a loose affiliation of like-minded attorneys built around our brand of cost-effective, fast turnaround legal services exclusively focused to the needs of the small business community. We compete with LegalZoom, RocketLawyer and the other “Internet-based legal self-help companies,” and we have room for an experienced business attorney to join our small team. The ideal candidate cannot get flustered with clients who sit on a matter for months, then bring it to us demanding a 1-day turnaround. We work with startups, procrastinating business owners, family dy-nasties and more. We hope to find someone with a penchant for litigation, patents and/or estates and trusts to complement our small team. Our work predominantly consists of small transactional matters with lots of diverse small-business clients. We don’t have a specific attorney in mind for this new position, other than possessing at least 7+ years experience in business law. We are very entrepreneurial, and want to entertain the best fit. Are you an old-timer with 40 years of experience, your own book of business, but could use some additional work, and just tired of sales, the back office and collections? Con-tact us and let’s discuss a partnership. Tired of the grind at the large law firm, and looking for a more rewarding and entrepreneurial challenge? Contact us and let’s talk. Please see our website https://www.L4SB.com/seeking/. Email references, resume and cover letter to [email protected]

Staff AttorneyDisability Rights New Mexico, a statewide non-profit agency that promotes and protects the rights of persons with disabilities, seeks full time Staff Attorney to represent agency clients in informal, administrative and legal proceedings; comment on proposed regula-tions and legislation; provide technical as-sistance; participate in policy advocacy. Must have excellent research and writing skills, demonstrate competence in a range of legal practice including litigation, and any combi-nation of advanced education, legal practice, professional work experience or volunteer activities relevant to disability issues. Must be licensed in NM or eligible for legal services or reciprocity license. Persons with disabilities & minorities strongly encouraged to apply. Competitive salary and benefits. Send letter of interest addressing above qualifications, resume, and three references to DRNM, 1720 Louisiana Blvd. NE, #204, Albuquerque, NM 87110, or by email to [email protected] by November 20, 2015. No calls please. AA/EEO



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Part-Time Legal SecretaryKemp Smith LLP is seeking a part-time Legal Secretary in our Las Cruces Office to assist supporting two litigation attorneys. The schedule is flexible at 28 hours per week and pay is based on experience. Require-ments: two years legal experience; excellent Word and Outlook skills; detail orientated; good customer service skills; ability to speak Spanish preferred. Apply on-line at www.kempsmith.com or send resume to [email protected]. EEOE

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]

Family Law AttorneyMinimum 3 years experience. Must be mo-tivated self-starter. Performance based pay. Send resume, cover letter, writing sample to [email protected].

Seventh Judicial District CourtAttorney Assistant PositionThe Seventh Judicial District Court is accept-ing applications for a full-time Attorney As-sistant at-will position. Current Hiring Salary is $51,200 - $64,000 per year. Under general direction, as assigned by a Judge or Court Executive Officer, review cases, perform legal research, evaluation, analysis, writing and make recommendations concerning the work of the Court or Judicial Entity. Ap-plication forms and full job description may be downloaded from the Judiciary’s website at http://www.nmcourts.gov under Job Op-portunities. Application along with resume must be submitted by 12:00 p.m. on Friday, November 20, 2015 to Jason E. Jones, Court Executive Officer, P.O. Drawer 1129, Socorro, NM 87801. EOE

Lawyer-A PositionNEW MEXICO DEPARTMENT OF FI-NANCE AND ADMINISTRATION (DFA) – ASSISTANT GENERAL COUNSEL. This Lawyer-A position is full-time, permanent, and classified. The salary range is from $44,782.40 to $77,916.80 annually, depending upon experience and qualifications. The ideal candidate for this position is an attorney with strong analytical, research, communication, and interpersonal skills, who enjoys working hard as a member of a small, collaborative, dynamic legal team that is engaged in topical issues that directly impact all levels of state and local government. The diverse areas in which the successful candidate will likely practice include employment law, admin-istrative law, state constitutional law, state and local government finance, budgeting, and rulemaking. Applicants must: (i) have a J.D. from an ABA accredited law school; (ii) be an active member, in good standing, of the NM bar; and (iii) have five or more years of experience as a practicing attorney. Ap-plicants must apply by November 15, 2015 at http://www.spo.state.nm.us/ to be considered for this position.

AttorneyTort defense work in New Mexico is challeng-ing these days. We are a longtime defense firm looking for an attorney who excels at research and writing but who also wants to be in the litigation trenches, doing discovery, taking depositions, arguing motions and trying cases. To apply, submit resume to Kimber-lee Vigil at the Eaton Law Office, PO Box 25305, Albuquerque, NM 87125, or [email protected].

NMLA Managing Attorney Position Available in Santa FeNMLA is seeking a Managing Attorney for its Santa Fe, Taos and Las Vegas offices. The position, based in Santa Fe, will help lead NMLA’s advocacy efforts throughout north central and northeastern New Mexico. The Santa Fe-Taos-Las Vegas Managing Attorney will supervise and mentor attorneys, parale-gals and other staff and volunteers; handle administrative duties; and handle cases as sole counsel or co-counsel for low-income individuals and families in a wide variety of poverty law areas including family law, housing, public benefits, and consumer is-sues. The Managing Attorney will be active in local bar and community activities. The work will include participating in community education and outreach to eligible clients; and recruitment of and collaboration with pro bono attorneys. The Santa Fe, Taos and Las Vegas offices handle creative, challenging and complex work. We are looking for highly motivated candidates who are passionate and strongly committed to helping NMLA bet-ter serve our client communities, including development of effective team strategies to handle complex advocacy and extended rep-resentation cases. Requirements: Minimum three years as licensed attorney; prior experi-ence in administrative and supervisory roles preferred. Must be willing to travel. Must be able to effectively use computer technology and remote communications systems, in-cluding shared on-line workspaces and web meeting and videoconferencing software, to effectively supervise and co-counsel with staff located in multiple offices. Candidates also must possess excellent written and oral communication skills, the ability to manage multiple tasks, manage a caseload and build collaborative relationships within the staff and the community. Proficiency in Spanish is a plus. To apply: Send a current resume, three references, and a letter of interest ex-plaining what you would like to accomplish if you are selected for this position to: [email protected] Salary: DOE, NMLA is an EEO Employer. Application Deadline: No-vember 30th, 2015.

Paralegal Advanced (NMDOT)The NMDOT seeks to fill a Paralegal & Legal Assistant – Advanced position. The position provides assistance to the attorney’s by con-ducting legal research, investigating facts, interviewing witnesses, reviewing document production for Inspection of Public Records requests and discovery requests, preparing le-gal documents and exhibits, maintaining the legal library and overseeing the maintenance of reference files. Direct experience providing support in construction, governmental entity defense or complex civil litigation matters, and / or ProLaw is highly desirable. Candi-date is required to become & / or maintain a current New Mexico Notary Public Com-mission. The minimum qualifications for this position require an Associate’s Degree in Paralegal Studies and two (2) years of work experience drafting and preparing legal cor-respondence, conducting legal research and maintaining a case management / tracking system. A combination of education from an accredited college or university in a related field and direct experience in this occupation totaling four (4) years may substitute for the required minimum qualifications. Position is a Pay Band 60, hourly salary range from $13.83 to $24.06, depending on qualifications and experience, with all state benefits to ap-ply. Overnight travel throughout the state is required. A valid New Mexico driver’s license must be maintained at all times during em-ployment. Working conditions: Primarily in an office setting requiring extensive personal computer and phone use, with occasional high pressure situations. Applicants must apply through the State Personnel Office: http:/www.state.nm.us/spo by the closing date of November 11, 2015. The New Mexico Department of Transportation is an equal opportunity employer.

http://www.kempsmith.com

http://www.kempsmith.com



http://www.nmcourts.gov

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

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


Services

Briefs, Research, Appeals —Leave the writing to me. Experienced, effec-tive, reasonable. [email protected] (505) 281 6797

O/G Title OpinionsExperienced, dual licensed NM/TX attorney seeks NM o/g title work. Fee split on contract. References available. [email protected]

Office Space

Professional OfficesProfessional offices in 22-story Albuquerque Plaza office tower adjacent to the Hyatt. Plaza500 executive offices include covered parking, VoIP phone with phone line, high-speed internet, free WiFi, conference rooms, professional reception service, copy and fax machine, and nightly janitorial service. Located at 201 3rd Street NW, Suite 500. Contact Sandee at 505-999-1726 or [email protected].

620 Roma N.W.620 ROMA N.W., located within two blocks of the three downtown courts. Rent includes utilities (except phones), fax, internet, janito-rial service, copy machine, etc. All of this is included in the rent of $550 per month. Up to three offices are available to choose from and you’ll also have access to five conference rooms, a large waiting area, access to full library, receptionist to greet clients and take calls. Call 243-3751 for appointment to inspect.

Orthopedic SurgeonOrthopedic Surgeon available for case review, opinions, exams. Rates quoted per case. Send inquiries to: [email protected]

Will or TrustIf you have any information about a will or trust created for Sharan Martinez, also known as Sharan Whitaker Martinez, in the Roswell or Clovis area, please contact Fran-cesca J. MacDowell, PO Box 328, Placitas, NM 87043, 505.404.8859, [email protected].

Miscellaneous

For Lease in the Downtown Abq Area - Historic Hudson HouseOne, Two, or Three attractive office spaces. The downstairs has separate kitchen and bathroom facilities. Rent includes utilities, telephone equipment, access to fax, copier, conference rooms, parking, library and reference materials. There is a potential for referrals and co-counsel opportunities. For more information, call Debra at the offices of Leonard DeLayo, Jr. PC at 505-243-3300.

Office Space Available DowntownReceptionist, parking, utilities, use of con-ference rooms, and telephones w/voicemail included. Great rates available for short and long term leases. Call for more information or to make an appointment to see the offices (505) 842-1905.

Attorney SupportDC attorney with eDiscovery/eManagement background looking to provide attorney sup-port work locally. [email protected]

Uptown Square Prime Office Space Available1474SF and 2324SF professional office space. High quality improvements can be modified or developed to Tenants specification. Great visibility and access. Convenient access to I-40. On site amenities include Bank of America and companion restaurants. Sur-rounded by nearby shopping, ample parking and Full Service Lease. Call John Whisenant or Ron Nelson (505) 883-9662 for more in-formation.

Needing assistance with your client’s appeal?Former NM and AZ appellate clerk, licensed four states. Examples available. Co-counsel, consulting, key trial motions/preservation. Mike. 575-202-6141, [email protected].

Abbreviated Advertising Schedule

Advertising for the Dec. 2, 2015,

Bar Bulletin must be submitted by Nov. 13.

Our offices will be closed on Nov. 26-27 for the Thanksgiving holiday.

For more advertising information, contact: Marcia C. Ulibarri at

505-797-6058 or email [email protected]

Specialist ProcurementThe only Academic Medical Center in New Mexico. Think Excellence. Think UNM Hospitals. SPEC PROCUREMENT Job Req 13058824. As part of our Purchasing team, you will develop, coordinate, and administer con-tracts for products and/or services for UNM Hospitals, as well as negotiate, extend, and renegotiate contracts as appropriate. Serves as primary point of liaison with contractors, monitors existing contracts for compliance and is responsible for managing Hospitals' confidential information such as employee information, performance management, legal and regulatory compliance. Requirements in-clude: Bachelor's Degree in related discipline; 2 years directly related experience, 3 years preferred. At UNM Hospitals, excellence is the basis of our every action. It’s evident in the accreditations, recognition and honors that reflect our continued commitment to quality, and in our leadership as the only academic medical center in the state. More importantly, it’s visible in the care each member of our or-ganization provides our patients. Please visit: http://hospitals.unm.edu/ Choose Jobs, and apply to #13058824. Text UNMH to 313131 to join our Talent Community! Visit facebook.com/UNMHCareers UNM Hospitals EOE






http://hospitals.unm.edu/


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November 4, 2015 • Volume 54, No. 44 · November 4, 2015 • Volume 54, No. 44. Table of Contents...

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