SPECIAL INSERT CLE Planner Inside This Issue December 2, 2015 • Volume 54, No. 48 STATE BAR OF NEW MEXICO 2016 Licensing Notification Your 2016 State Bar licensing fees and certifications are due Dec. 31, 2015, and must be completed by Feb. 1, 2016, to avoid non-compliance and related late fees. Complete your annual licensing requirements at www.nmbar.org. Payment by credit and debit card * are available. If you have any questions, please call 505-797-6083 or email [email protected]. For more details, refer to page 4. If you have already completed your licensing requirements, please disregard this notice. * Online payment by credit and debit card will incur a service charge. Table of Contents .................................................... 3 New Mexico Supreme Court: Swearing-In Ceremony for Hon. Judith K. Nakamura ........... 4 Board of Bar Commissioners: Appointments to Client Protection Fund Commission.............. 5 Location Needed to Store Committee on Women and the Legal Profession Clothing Closet........... 5 Michael Gross and C. Bryant Rogers Receive Indian Law Section Achievement Award ........... 5 From the New Mexico Supreme Court 2015-NMSC-027, No. 34,811: Kane v. City of Albuquerque.......................... 13 From the New Mexico Court of Appeals 2015-NMCA-083, No. 32,413: Trace v. University of New Mexico Hospital ............................................... 23 2015-NMCA-084, No. 33,587: State v. Sanchez................................................. 26
Transcript
SPECIAL INSERT
CLE Planner
Inside This Issue
December 2, 2015 • Volume 54, No. 48
State Bar of New Mexico
2016 Licensing Notification
Your 2016 State Bar licensing fees and certifications are due Dec. 31, 2015, and must be completed by Feb. 1, 2016, to
avoid non-compliance and related late fees.
Complete your annual licensing requirements at www.nmbar.org.
Payment by credit and debit card* are available.
If you have any questions, please call 505-797-6083 or email [email protected].
For more details, refer to page 4.
If you have already completed your licensing requirements, please disregard this notice.
*Online payment by credit and debit card will incur a service charge.
Table of Contents .................................................... 3
New Mexico Supreme Court: Swearing-In Ceremony for Hon. Judith K. Nakamura ........... 4
Board of Bar Commissioners: Appointments to Client Protection Fund Commission .............. 5
Location Needed to Store Committee on Women and the Legal Profession Clothing Closet ........... 5
Michael Gross and C. Bryant Rogers Receive Indian Law Section Achievement Award ........... 5
From the New Mexico Supreme Court
2015-NMSC-027, No. 34,811: Kane v. City of Albuquerque .......................... 13
From the New Mexico Court of Appeals
2015-NMCA-083, No. 32,413: Trace v. University of New Mexico Hospital ............................................... 23
2015-NMCA-084, No. 33,587: State v. Sanchez................................................. 26
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
9 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque
10 Legal Resources for the Elderly Workshop 10–11:15 a.m., Presentation noon–2 p.m., Clinics Placitas Senior Center, Placitas
January
6 Divorce Options Workshop 6 p.m., State Bar Center, Albuquerque
6 10 a.m.–1 p.m., Second Judicial District Court, Third Floor Conference Room Albuquerque
MeetingsDecember
2 Animal Law Section Annual Meeting, 5 p.m., State Bar Center
3 Bankruptcy Law Section BOD, Noon, Slate Street Café, Albuquerque
4 Criminal Law Section BOD, Noon, Kelley & Boone, Albuquerque
5 Young Lawyers Division Section BOD, 10 a.m., State Bar Center
8 Senior Lawyers Division BOD, 4 p.m., State Bar Center
9 Children’s Law Section BOD, Noon, Slate Street Café, Albuquerque
9 Taxation Section BOD, 11 a.m., teleconference
10 Business Law Section BOD, 4 p.m., teleconference
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
4 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
NoticesProfessionalism Tipcourt news
New Mexico Supreme CourtSwearing-In Ceremony for Hon. Judith K. Nakamura Members of the legal community are invited to attend the swearing-in ceremony for Hon. Judith K. Nakamura as justice of the Supreme Court of New Mexico. The ceremony will take place at 4 p.m. on Dec. 11 at Sid Cutter Pilots’ Pavilion, 4900 Balloon Fiesta Parkway, NE, Albuquerque. A reception will immediately follow the ceremony in the Pavilion.
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 the State Bar Center, 5121 Masthead NE, Albuquerque. 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 examples 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.
Bernalillo County Metropolitan CourtCourt CLosure The Bernalillo County Metropolitan Court will close from 3–5 p.m. on Dec. 10 for the Court’s annual holiday celebration.
U.S. District Court for the District of New MexicoService on Court Panel Chief Judge M. Christina Armijo and the Article III District Judges for the Dis-trict of New Mexico solicit interest from Federal Bar members for service on the Magistrate Judge Merit Selection Panel. This Panel is responsible for the selection, appointment and reappointment of U.S. Magistrate Judges in the District. To be considered for appointment to the Panel, interested Federal Bar members in good standing should reply by Dec. 4 to the Clerk of Court, U.S. District Court, 333 Lomas Blvd. NW, Suite 270, Albuquerque, NM 87102; or by email to [email protected].
With respect to parties, lawyers, jurors, and witnesses:
In all written and oral communications, I will abstain from disparaging personal remarks or criticisms, or sarcastic or demeaning comments about another judge.
state bar newsAttorney Support Groups• Dec. 7, 5:30 p.m. First United Methodist Church, 4th
and Lead SW, Albuquerque (The group meets the first Monday of the month.)
• Dec. 14, 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#.
• Dec. 21, 7:30 a.m. First United Methodist Church, 4th
and Lead SW, Albuquerque (The group meets the third Monday of the month.)
For more information, contact Hilary Noskin, 505-449-7984 or Bill Stratvert, 505-242-6845.
2016 Budget DisclosureDeadline to Challenge Expenditures Using the form provided on the last page of the budget disclosure document, submit written challenges on or before noon, Dec. 24, 2015, to: Executive Direc-tor Joe Conte, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199. Challenges may also be delivered in person to the State Bar Center, 5121 Masthead NE, Albuquerque; or emailed to [email protected]. The budget disclosure docu-ment is available in its entirety on the State Bar website at www.nmbar.org.
2016 Licensing NotificationDue by Dec. 31 2016 State Bar licensing fees and certi-fications are due Dec. 31, 2015, and must be completed by Feb. 1, 2016, to avoid non-compliance and related late fees. Complete annual licensing requirements at www.nmbar.org. Payment by credit and debit card are available (will incur a service charge). For more information, call 505-797-6083 or email [email protected]. For help logging in or other website troubleshooting, call 505-797-6086 or
email [email protected]. Those who have already completed their licensing requirements should disregard this notice.
Animal Law SectionAnnual Meeting and Best in Show Viewing The Animal Law Section will hold its annual membership meeting from 5–7:30 p.m., Dec. 2, at the State Bar Center. The event will begin with hors d’oeuvres and a business meeting. Best in Show, a 2000 American “mockumentary” comedy film written and directed by Christopher Guest, will be shown after the business meeting. The film follows five entrants in a prestigious dog show and focuses on the slightly surreal interactions among the various owners and handlers as they travel to the show and compete, and after the show, as well as how the personalities and characteristics of the owners match those of their dogs. Attendees are welcome to bring well-socialized dogs. R.S.V.P. to Heather Kleinschmidt, [email protected].
Appellate Practice SectionBrown Bag Lunch with Judge Linda M. Vanzi Judge Linda M. Vanzi will join the Appel-late Practice Section and the Young Lawyers Division for their next brown bag lunch at noon, Dec. 11, at the State Bar Center in Albuquerque. These meetings are informal and attendees are encouraged to bring their own lunch. Space is limited, so email [email protected] to R.S.V.P. Judge Vanzi graduated from Marymount College in 1977 with degrees in English and French. She received her J.D. from the University of New Mexico in 1995. After a clerkship with U.S. District Court Judge Edwin L. Mechem, Judge Vanzi went into private practice focusing on civil rights, labor and employment law, personal injury, child abuse and neglect and commercial law. In 2004, Judge Vanzi was appointed to the Second Judicial District Court where she served in the civil division until she was appointed to the Court of Appeals in 2008. Judge Vanzi has chaired the Uniform Jury
Bar Bulletin - December 2, 2015 - Volume 54, No. 48 5
Instruction-Civil Committee, the Judicial Education Committee, and has served as co-chair of the State Bar Alternative Dispute Resolution Committee.
Bankruptcy Law SectionWinter Social The Bankruptcy Law Section is host-ing a winter social event from 5–7 p.m., Dec. 16, at Soul and Vine, 109 Gold Ave. SW, Albuquerque. There will be buffet appetizers and one drink ticket available per attendee. The event is free to section members. No R.S.V.P. required.
Board of Bar CommissionersAppointments to Client Protection Fund Commission The Board of Bar Commissioners will make two appointments to the Client Protection Fund Commission for three-year terms. Members who want to serve on the Commission should send a letter of interest and brief résumé by Dec. 7 to Executive Director Joe Conte, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860; fax to 828-3765; or email to [email protected].
Committee on Women and the Legal Profession2015 Justice Minzner Outstanding Advocacy for Women Award The Committee on Women and the Legal Profession is seeking nominations for the 2015 Justice Pamela B. Minzner Outstanding Advocacy for Women Award. Each year the Committee gives this award to a New Mexico attorney, male or female, who has distinguished themselves during the prior year by providing legal assistance to women who are underrepresented or underserved or by advocating for causes that will ultimately benefit and/or further the rights of women. To make a nomina-tion, submit one–three letters describing the work and accomplishments of the nominee to Zoe Lees at [email protected] by Dec. 15. The award ceremony will be held mid-January of 2016. For more details about the award and previous recipients, visit www.nmbar.org > About Us > Committees.
Location Needed to Store Professional Clothing Closet Since 2010, the Committee has spon-sored a Professional Clothing Closet which makes gently used professional attire
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
available to members of the State Bar, law students, paralegals and clients. Due to an office move, the closet will need a new home in 2016. For more information or to volunteer space, contact Co-chair DeAnza Valencia Sapien at [email protected].
Indian Law SectionAchievement Award Winners Announced The Indian Law Section has selected Michael Gross and C. Bryant Rogers to receive the 2015 Achievement Award. They were chosen for their outstand-ing contributions to the field of Indian law and work in advocating for Native American communities and advancing the principles of tribal self-governance and self-determination. Presentation of the Achievement Awards will take place in early 2016.
Donors Needed for Bar Preparation Scholarship Fund Since 2006, the Indian Law Section Bar Preparation Scholarship Fund has assisted third-year law students who plan to take the New Mexico Bar Exam and express an interest in practicing Indian Law. The Scholarship aims to alleviate some of the costs associated with preparing for and taking the Bar Exam. The size and number of scholarships greatly depends on the generosity of those who contribute to the fund. The Section urges members of the New Mexico legal community to consider donating to this fund. For more informa-tion, visit www.nmbar.org > About Us > Sections > Indian Law.
Young Lawyers DivisionVolunteers Needed at Veterans Legal Clinic on Dec. 8 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 Dec. 8. Those who are interested in volunteering or have questions should contact Keith Mier at [email protected] or 505-883-3395.
State Bar Center Meeting SpaCe An auditorium, one large conference room,
six small conference rooms, visiting attorney offices, and classrooms/meeting rooms
provide ideal accommodations for meeting, trainings, conferences, and mediations or arbitrations.
For more information, call 505-797-6000.
All New Mexico attorneys must notify both the Supreme Court and the State Bar of changes in contact information.
School of Law Alumni AssociationThird Annual Holiday Gathering The UNM School of Law invites faculty, students, staff, alumni and friends to its Third Annual Holiday Gathering from 5:30–7:30 p.m., Dec. 9, at the School of Law in Albuquerque. R.S.V.P. online at www.lawschool.unm.edu/alumni/events/holiday.php by Dec. 8.
other barsFirst Judicial District Bar AssociationDecember Holiday Party Join the First Judicial District Bar Association for its annual holiday party, beginning at 6 p.m., Dec. 10, at the Draft Station, 60 E. San Francisco St., Santa Fe. Attendance is free and includes salad, pizza, beer, wine and good cheer. No R.S.V.P. necessary. Contact Lucas Conley at [email protected] or 505-986-2657 for more information.
New Mexico Criminal Defense Lawyers Association‘Blinded by Science’ and ‘The Brain’ CLE Courses The New Mexico Criminal Defense Lawyers Association presents two CLE courses in December. “Blinded by Sci-ence: An Update on Scientific Testimony, Cell Phones and Experts, Plus the Ethical
Implications of Each” (4.0 G, 2.0 EP) will be Dec. 4 at the Greater Albuquerque As-sociation of Realtors in Albuquerque. “The Brain: The Client’s, The Juror’s, The Judge’s and Yours” (3.0 G, 3.0 EP) will be Dec. 11 at the New Mexico Farm & Ranch Heritage Museum in Las Cruces. Registration is available at www.nmcdla.org.
New Mexico Defense Lawyers AssociationAnnual Civil Rights Seminar The New Mexico Defense Lawyers Asso-ciation presents “2015 Annual Civil Rights Seminar “(5.5 G) from 8:30 a.m.–4:15 p.m., Dec. 4, at the Greater Albuquerque Jewish Community Center. This seminar is designed for the intermediate as well as ad-vanced civil rights practitioner and adjuster. For registration and more information visit www.nmdla.org 505-797-6021.
New Mexico Women’s Bar AssociationLuncheon and ‘Getting to First Chair’ CLE The New Mexico Women’s Bar As-sociation presents a luncheon and CLE, “Getting to First Chair: Strategies for Achieving Success in Your Practice” (3.0 G, pending MCLE approval) at the Albuquerque Country Club on Dec. 3. The luncheon will be noon–1 p.m. Antonia Roybal-Mack will speak on how a professional coach made her law practice profitable and her family life en-joyable. The CLE will be 1:15–4:30 p.m., presented by Louren Oliveros and Paula Maynes. The cost is $40 for NMWBA members and $90 for non-members. Non-members, male and female, may join the NMWBA for $50 prior to the CLE for the upcoming year and receive the member price. For more informa-tion, email [email protected] or visit the www.nmbar.org > for Members > Bars and Legal Groups.
other newsNeighborhood Law Center CLE Conference in Santa Fe The Santa Fe Neighborhood Law Cen-ter presents the 8th annual Neighborhood Law CLE Conference, “Law and Policy for Neighborhoods” (10.0 G, 2.0 EP), Dec. 3–4, at the Santa Fe Convention Center. The program features Supreme Court Chief Justice Barbara J. Vigil and Court of Appeals Judge Linda M. Vanzi as mid-day speakers. Early registrants (before Nov. 27) will receive a reduced fee of $350 (standard registration fee: $380). For more informa-tion, schedule and registration, visit www.sfnlc.com.
Workers’ Compensation Administration Civility and Professional Identity CLE The Workers’ Compensation Adminis-tration will host an educational seminar, “Civility and Professional Identity: A perspective from Inside and Outside the Workers’ Compensation Administration” (1.0 EP), from 11 a.m.–noon, Dec. 4, at the WCA, 2410 Centre Ave. SE, Albuquerque. Led by presentersWCA Judge Shanon Riley, UNM School of Law Professor David Stout and WCA Mediation Bureau Chief Bonnie Stepleton, participants will gain an understanding of how civility is defined in the legal profession. Examples of civility and incivility will be presented and discussed as a group including role play scenarios. Participants will gain an appreciation for what the benefits to their clients and to the courts are in practicing law as a “civil” lawyer. The course cost for attorneys is $1. For more information or to register, contact Diana Sandoval-Tapia at 505-841-6052 or [email protected].
Bar Bulletin - December 2, 2015 - Volume 54, No. 48 9
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. 35,603 State v. County of Valencia COA 33,903 11/19/15No. 35,602 State v. Astorga COA 32,374 11/19/15No. 35,599 Tafoya v. Stewart 12-501 11/19/15No. 35,598 Fenner v. N.M. Taxation and
Revenue Dept. COA 34,365 11/18/15No. 35,596 State v. Lucero COA 34,360 11/10/15No. 35,595 State v. Axtolis COA 33,664 11/10/15No. 35,594 State v. Hernandez COA 33,156 11/10/15No. 35,593 Quintana v. Hatch 12-501 11/06/15No. 35,591 State v. Anderson COA 32,663 11/06/15No. 35,588 Torrez v. State 12-501 11/04/15No. 35,587 State v. Vannatter COA 34,813 11/04/15No. 35,585 State v. Para COA 34,577 11/04/15No. 35, 584 State v. Hobbs COA 32,838 11/03/15No. 35,582 State v. Abeyta COA 33,485 11/02/15No. 35,581 Salgado v. Morris 12-501 11/02/15No. 35,586 Saldana v. Mercantel 12-501 10/30/15No. 35,580 State v. Cuevas COA 32,757 10/30/15No. 35,579 State v. Harper COA 34,697 10/30/15No. 35,578 State v. McDaniel COA 31,501 10/29/15No. 35,573 Greentree Solid Waste v.
County of Lincoln COA 33,628 10/28/15No. 35,576 Oakleaf v. Frawner 12-501 10/23/15No. 35,575 Thompson v. Frawner 12-501 10/23/15No. 35,555 Flores-Soto v. Wrigley 12-501 10/09/15No. 35,554 Rivers v. Heredia 12-501 10/09/15No. 35,540 Fausnaught v. State 12-501 10/02/15No. 35,523 McCoy v. Horton 12-501 09/23/15No. 35,522 Denham v. State 12-501 09/21/15No. 35,515 Saenz v.
Ranack Constructors COA 32,373 09/17/15No. 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. 35,399 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. 35,353 Collins v. Garrett COA 34,368 06/12/15No. 35,335 Chavez v. Hatch 12-501 06/03/15No. 35,371 Pierce v. Nance 12-501 05/22/15No. 35,271 Cunningham v. State 12-501 05/06/15
No. 35,266 Guy v. N.M. Dept. of Corrections 12-501 04/30/15
No. 35,261 Trujillo v. Hickson 12-501 04/23/15No. 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. 34,907 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 12/06/12No. 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 03/23/15No. 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 05/11/15
Effective November 20, 2015
10 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
Writs of CertiorariNo. 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 03/26/14No. 34,613 Ramirez v. State COA 31,820 12/17/14No. 34,798 State v. Maestas COA 31,666 03/25/15No. 34,630 State v. Ochoa COA 31,243 04/13/15No. 34,789 Tran v. Bennett COA 32,677 04/13/15No. 34,997 T.H. McElvain Oil & Gas v.
Benson COA 32,666 08/24/15
No. 34,993 T.H. McElvain Oil & Gas v. Benson COA 32,666 08/24/15
No. 34,726 Deutsche Bank v. Johnston COA 31,503 08/24/15
No. 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. 34,549 State v. Nichols COA 30,783 11/19/15No. 34,546 N.M. Dept. Workforce Solutions v.
Garduno COA 32,026 11/19/15No. 34,974 Moses v. Skandera COA 33,002 11/12/15No. 34,637 State v. Serros COA 31,975 11/12/15No. 34,548 State v. Davis COA 28,219 10/19/15
Petition for Writ of Certiorari Denied:
Date Order FiledNo. 35,568 State v. Aranzola COA 32,505 11/17/15No. 35,567 State v. Ruiz COA 32,992 11/17/15No. 35,562 Scott v. New COA 34,556 11/17/15No. 33,979 State v. Suskiewich COA 33,979 11/17/15No. 34,881 Paz v. Horton 12-501 11/17/15No. 35,559 State v. Shelby COA 34,682 11/10/15No. 35,511 Brinsfield v. Hatch 12-501 11/10/15No. 35,558 State v. Hernandez COA 33,525 11/10/15No. 35,341 Martin v. State 12-501 11/10/15No. 35,269 Peterson v. Ortiz 12-501 11/10/15No. 35,217 Hernandez v. Horton 12-501 11/10/15No. 35,506 Alonso v. Hatch 12-501 11/05/15No. 35,403 Blackwell v. Horton 12-501 11/10/15No. 35,552 Spurlock v. N.M. Board of
Examiners for Architects COA 34,833 11/05/15No. 35,550 State v. Ben COA 33,921 11/05/15No. 35,546 State v. Lefthand COA 33,396 11/05/15No. 35,545 State v. Lemanski COA 33,846 11/05/15No. 35,544 State v. Trujeque COA 34,519 11/05/15No. 35,452 Kirk v. Mercantel 12-501 11/05/15No. 35,411 Tayler v. State 12-501 11/05/15No. 35,542 City of Roswell v. Marin COA 34,286 10/23/15No. 35,539 State v. Herrera COA 33,255 10/23/15No. 35,538 State v. Gallegos COA 34,689 10/23/15No. 35,537 State v, Reyes COA 34,700 10/23/15No. 35,535 State v. Herrera COA 33,078/33,255 10/23/15No. 35,532 Woody Investments v.
Sovereign Eagle COA 32,830 10/23/15No. 35,526 State v. Mitchell COA 34,573 10/21/15No. 35,525 State v. Ashley COA 32,974 10/21/15No. 35,520 Deutsche Bank v. Huerta COA 34,337 10/21/15No. 35,519 State v. York COA 33,462 10/21/15No. 35,518 State v. Yanke COA 34,474 10/21/15No. 35,412 Peterson v. LeMaster 12-501 10/21/15No. 35,368 Griego v. Horton 12-501 10/21/15
Bar Bulletin - December 2, 2015 - Volume 54, No. 48 11
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 November 20, 2015Published Opinions
No. 33310 3rd Jud Dist Dona Ana CV-11-194, N GARCIA v HATCH VALLEY PUBLIC SCHOOLS 11/16/2015(reverse and remand)No. 33657 1st Jud Dist Santa Fe CV-10-4195, B TENNYSON v SANTA FE DEALER (affirm) 11/19/2015
Unublished Opinions
No. 33108 2nd Jud Dist Bernalillo CR-07-5344, STATE v G SANDOVAL (affirm) 11/16/2015No. 34540 3rd Jud Dist Dona Ana CR-13-907, STATE v O ALANAZI (affirm) 11/16/2015No. 34672 7th Jud Dist Torrance CV-13-126, S IVEY v TOWN OF MOUNTAINAIR (affirm) 11/16/2015No. 34736 12th Jud Dist Otero CR-13-328, STATE v F GRANADOS (remand) 11/16/2015No. 34549 9th Jud Dist Curry CR-09-872, STATE v D JAMES (affirm) 11/16/2015No. 34679 2nd Jud Dist Bernalillo CR-13-4146, STATE v D BURGE (affirm) 11/16/2015No. 34779 11th Jud Dist San Juan CR-08-805, STATE v A HOLONA (affirm) 11/16/2015No. 33829 2nd Jud Dist Bernalillo LR-12-37, STATE v M. HART-OMER (affirm) 11/17/2015No. 34665 5th Jud Dist Chaves CR-13-489, STATE v J OROZCO (affirm) 11/18/2015No. 34757 10th Jud Dist Quay CV-07-111, RABO AGRIFINANCE v TERRA XXI (affirm) 11/18/2015No. 34807 3rd Jud Dist Dona Ana CV-13-2176, T OWEN v D PADILLA (dismiss) 11/18/2015No. 33417 5th Jud Dist Lea CR-12-390, STATE v E SALAZAR (reverse and remand) 11/19/2015
Slip Opinions for Published Opinions may be read on the Court’s website:http://coa.nmcourts.gov/documents/index.htm
12 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
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 December 2, 2015
Pending Proposed Rule Changes Open for Comment:
Comment Deadline
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.
To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us.
Bar Bulletin - December 2, 2015 - Volume 54, No. 48 13
Advance Opinions http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
From the New Mexico Supreme Court
Opinion Number: 2015-NMSC-027
EMILY KANE,Petitioner-Appellee,
v.CITY OF ALBUQUERQUE,Respondent-Appellant
No. 34,811 (filed August 13, 2015)
CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALSBEATRICE J. BRICKHOUSE, District Judge
DAVID TOUREKCity Attorney
REBECCA ELIZABETH WARDLAWAssistant City AttorneySAMANTHA M. HULTSAssistant City Attorney
OFFICE OF THE CITY ATTORNEYAlbuquerque, New Mexico
ROBIN A. GOBLECONKLIN, WOODCOCK & ZIEGLER, P.C.
Albuquerque, New Mexicofor Appellant
MICHAEL J. CADIGANKRISTINA CAFFREY
CADIGAN LAW FIRM, P.C.for Appellee
HECTOR BALDERASAttorney General
PHILLIP BACAAssistant Attorney General
OFFICE OF THE ATTORNEY GENERALfor Intervener
Opinion
Edward L. Chávez, Justice{1} Since 1975, we have held that provi-sions precluding government employees from seeking elective office are consti-tutionally permissible personnel rules regulating conflicts of interest. See State ex rel. Gonzales v. Manzagol, 1975-NMSC-002, ¶¶ 18-19, 87 N.M. 230, 531 P.2d 1203. These personnel rules act as conditions of employment, and therefore do not constitute added qualifications for elective public office. See id. ¶ 13. Appellee Emily Kane (Kane) ran for elective office while she was employed at the Albuquerque Fire Department (the AFD) as a captain. Article X, Section 3 of the Charter of the City of Albuquerque (1989) (City Charter), and the City of Albuquerque Personnel Rules and Regulations (City Personnel Rules), Section 311.3 (2001), prohibit city employees from holding elective office. Kane sought injunctive relief to allow her to hold elective office while retaining her employment with the
AFD. She contends that the employment regulations of the City of Albuquerque (the City) violate (1) the First and Fourth Amendments of the United States Con-stitution; (2) Article VII, Section 2 of the New Mexico Constitution; and (3) Section 10-7F-9 of the Hazardous Duty Officers’ Employer-Employee Relations Act, NMSA 1978, Sections 10-7F-1 to -9 (2010) (the HDOA). The district court granted Kane the relief she sought. We reverse. The City’s employment regula-tions do not violate the First Amendment because they regulate conflicts of interest, and they are therefore rationally related to the legitimate government purpose of promoting administrative efficiency. Moreover, these regulations do not violate Article VII, Section 2 because they consti-tute conditions of employment that do not add additional qualifications to elective public office. Finally, the City’s employ-ment regulations are not preempted by Section 10-7F-9 because personnel rules touch upon issues of local rather than general concern, and they are therefore within the City’s authority to promulgate.
I. BACKGROUND{2} Kane is a captain in the AFD. During her employment with the AFD, she was nominated as a candidate for the New Mexico House of Representatives. Kane stated that she would neither campaign nor serve as a legislator while on duty. The City objected to Kane’s candidacy.{3} According to the stipulated facts, “[b]eginning March 26, 2011, the City advised Kane via emails of city policies prohibiting her from running for or holding office and Kane acknowledged receipt that same day.” The chief of the AFD also “sent Kane a letter stating that she was not authorized under city law to be a candidate for public office.” Moreover, the AFD deputy chief “issued notices of investigation and conducted a pre-discipline interview of Kane relating to her candidacy.”{4} The City asserts that Kane’s candidacy was prohibited by multiple regulations. First, the City Charter provides that “employees of the city are prohibited from holding an elec-tive office of the State of New Mexico or any of its political subdivisions. . . .” City Charter art. X, § 3. Second, the City Personnel Rules provide that “[n]o person shall . . . [b]e a candidate for or hold an elective office of the State of New Mexico or any of its political subdivisions” and that “[n]o person shall engage in political activity that diminishes the integrity, efficiency or discipline of the City service.” City Personnel Rules § 311.3.{5} Kane sought injunctive relief to en-able her to seek elective office. She alleged that “[t]he City demanded that [she] either withdraw her candidacy or resign her job.” She asked the district court to restrict “the City from taking any action to require her to withdraw her candidacy.” Kane argued that the City’s employment regulations violate (1) the First and Four-teenth Amendments of the United States Constitution, (2) Article VII, Section 2 of the New Mexico Constitution, and (3) Section 10-7F-9.{6} The district court granted Kane the permanent injunction she sought and awarded her attorney’s fees. The City then appealed the district court’s decision on the merits and the award of attorney’s fees. The New Mexico Court of Appeals certified two related cases to this Court pursuant to Rule 12-606 NMRA. Kane v. City of Albuquer-que, Nos. 32,343 & 32,683, Certification to Supreme Court (July 8, 2014), which we accepted on August 18, 2014.
14 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
http://www.nmcompcomm.us/Advance OpinionsII. DISCUSSIONA. Whether the City’s Prohibitions
Against Employers Seeking or Holding Elective Office Violate the First Amendment of the United States Constitution
{7} Kane argues that Article X, Section 3 of the City Charter and City Personnel Rules Section 311.3 violate the First Amendment of the United States Constitution. She claims that these provisions violate her right to candidacy, voters’ rights, and the right of “a public employee to speak on matters of public concern.” Kane asserts that her right to candidacy and voters’ rights are “hybrid and overlapping” such that the constitutional analysis “varies as the restrictions [on these rights] vary.” She contends that “[b]ecause the City has severely restricted candidacy rights and because those restrictions impact the fundamental rights of voters, the City’s [employment regulations] can survive only if narrowly tailored to advance a compel-ling state interest.” The City characterizes Kane’s claim as concerning the right to candidacy and argues that “Kane has no fundamental [c]onstitutional right to seek or hold elective public office,” and the City’s employment regulations “are ratio-nally related to legitimate governmental interests.”{8} The appropriate level of scrutiny var-ies with the analytical approach utilized for each of the three types of rights Kane asserts. Delineating these analytical ap-proaches and their interrelationships is prerequisite to determining the proper level of scrutiny.1. The right to candidacy and the
right to vote {9} The right to candidacy and the right to vote are subjected to differing levels of scrutiny. The right to candidacy is not fundamental, see Bullock v. Carter, 405 U.S. 134, 142-43 (1972), whereas the right to vote is fundamental. Anderson v. Celebrezze, 460 U.S. 780, 786 n.7 (1983). Restrictions that only impair the right to candidacy are subject to rational basis re-view. See, e.g., Brazil-Breashears v. Bilandic, 53 F.3d 789, 793 (7th Cir. 1995) (subjecting a state supreme court policy prohibiting judicial branch employees from becoming candidates for public office to a rational basis review). On the other hand, restric-tions on voters’ rights can be subjected to heightened scrutiny. See Wit v. Berman, 306 F.3d 1256, 1259 (2d Cir. 2002).{10} Although voters’ rights and the right to candidacy are subject to differ-
ing levels of scrutiny, these rights are not easily separable. See Bullock, 405 U.S. at 142-43. Laws that narrow the field of candidates necessarily limit voter choice, and therefore “always have at least some theoretical, correlative effect on voters.” Id. at 143. Laws that tend to limit the field of candidates may “place burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30 (1968). Consequently, regula-tions limiting the field of candidates can, but do not automatically, compel height-ened scrutiny. Bullock, 405 U.S. at 142-44. Although voters’ rights are fundamental, “not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally-suspect burdens on voters’ rights to associate or to choose among candidates.” Anderson, 460 U.S. at 788; accord Grizzle v. Kemp, 634 F.3d 1314, 1321-22 (11th Cir. 2011) (noting that the right to vote is fundamental, and that restrictions on candidacy imposing severe burdens on First Amendment rights are subject to heightened scrutiny); Lewis v. Guadagno, 837 F. Supp. 2d 404, 411 (D.N.J. 2011), aff’d, 445 F. App’x 599 (3d Cir. 2011) (“Numerous cases . . . illustrate, either expressly or tacitly, the need for strict scrutiny of restrictions on candidacy only when those restrictions substantially and appreciably impact constitutional rights or basic political freedoms independent of the candidate’s ability to run for public of-fice.”). Laws limiting the field of candidates cannot circumscribe voters’ rights on the basis of “financial status, political opinion, or membership in a protected class.” Lewis, 837 F. Supp. 2d at 412.{11} Bullock is instructive about when restrictions limiting the field of candidates trigger heightened scrutiny. See 405 U.S. at 142-44. Bullock involved a Texas law that required a candidate to pay a filing fee “as a condition to having his [or her] name placed on the ballot in a primary election.” Id. at 135. This regulation neither placed a condition on the right to vote nor quantitatively diluted the votes that were cast. Id. at 143. Nevertheless, the filing fees precluded individuals who lacked either personal wealth or affluent backers from seeking office, even though they may be qualified and enjoy popular support. Id. Consequently, voters were “substantially limited in their choice of candidates, [and]
there [was] the obvious likelihood that this limitation would fall more heavily on the less affluent segment of the community, whose favorites may [have been] unable to pay the large costs required by the Texas system.” Id. at 144. The Texas electoral system thus created a disparity in voting power based on wealth, which required the Court to review the filing fee system under heightened scrutiny. Id.{12} By contrast, Lewis refused to apply heightened scrutiny in analyzing “New Jersey’s durational residency requirement for the office of state senator.” Id. at 413. The residency requirement only precluded those individuals who did not reside in New Jersey for at least four years from running for office. Id. at 412. The residency requirement therefore did not appreciably impact “voters, political parties, or persons with particularized views or minimal wealth” so as to merit heightened scrutiny. Id. at 412-13 (discussing Bullock, among other cases).{13} Kane relies on Anderson to support her position that we apply heightened scrutiny. In Anderson, a statutory filing deadline precluded a presidential candi-date from “qualify[ing] for a position on the ballot in Ohio,” even though he met “the substantive requirements for having his name placed on the ballot.” 460 U.S. at 782. The issue in Anderson was “whether Ohio’s early filing deadline placed an un-constitutional burden on the voting and associational rights of [the candidate’s] supporters.” Id. Ohio’s early filing deadline required independent presidential candi-dates to qualify for the November general election ballot by mid-to-late March of the election year. Id. at 782-83, 790. By contrast, major political party candidates did not have to qualify for the general elec-tion ballot for another five months. Id. at 791. Thus, by comparison with supporters of the major political parties, the early fil-ing deadline provided independent voters with less time for deciding which candi-dates should qualify for the ballot. See id. at 790-93. Moreover, the deadline shrank the pool of independent candidates that was available on the ballot. See id. at 790. Consequently, “the inflexibility imposed by the March filing deadline” disadvan-taged independent candidates, id. at 791, so as to burden “an identifiable segment of Ohio’s independent-minded voters.” Id. at 792.{14} The Anderson Court concluded that this burden was problematic. See id. at 792-94. “[T]he primary values protected by the
Bar Bulletin - December 2, 2015 - Volume 54, No. 48 15
http://www.nmcompcomm.us/Advance OpinionsFirst Amendment [include] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Id. at 794 (internal quotation marks and citation omitted). Regulations limiting the ability of independent voters to associate neces-sarily undermine their “political effective-ness as a group, [and therefore] reduce diversity and competition in the market-place of ideas.” Id. Therefore, laws limiting the field of candidates are unconstitutional when they burden an identifiable segment of voters— such as voters who share a particularized viewpoint, economic status, or associational preference—by limiting these voters’ freedom of choice and as-sociation. Id. at 806 (noting that burdens “placed on the voters’ freedom of choice and freedom of association, in an election of nationwide importance, unquestion-ably outweigh the State’s minimal interest in imposing” an early filing deadline for independent candidates).{15} Anderson is distinguishable from the case at bar. First, the City, by precluding City employees from holding elective of-fice, does not impinge on voters’ choice by limiting the field of potential candidates, City Charter art. X, § 3 and City Personnel Rules § 311.3, because Kane could retain her position in the AFD or hold elective office. See Manzagol, 1975-NMSC-002, ¶ 13 (noting that a statute precluding a state employee from holding political office did not act as a barrier to political office, but instead jeopardized his position as a public employee). No legal provision precluded Kane from making this choice. Therefore, Kane was still “free to run and the people [were] free to choose [her].” Si-gnorelli v. Evans, 637 F.2d 853, 858 (2d Cir. 1980) (noting that where a law provides a prospective candidate with the choice of either running for Congress or retaining his state judgeship, there was “no obstacle between [the candidate] and the ballot” such that the candidate was free to run). By contrast, the early filing deadline in An-derson was not a provision that provided independent candidates with a choice; the deadline either had to be followed or the candidate was barred from the ballot. 460 U.S. at 782. This lack of choice clearly placed independent candidates, and more importantly, their followers, at a com-petitive disadvantage during presidential elections because major political party candidates were given a longer period of time in which to enter the presidential race. Id. at 790-93. Second, Kane does not
allege that the City’s employment regula-tions impact an identifiable group of voters who share a common political affiliation, economic status, viewpoint, or member-ship in a protected class. Moreover, the record does not reveal any nexus between a preference for electing public employees and an identifiable political preference or any other common identifying factor. Thus, unlike the early filing deadline in Anderson, the City’s employment regula-tions do not impinge on the marketplace of ideas. 460 U.S. at 793-94. Therefore, we conclude that the City’s regulations do not sufficiently implicate voters’ rights so as to trigger heightened scrutiny.{16} As other courts have done in similar circumstances, we subject the City’s employ-ment regulations to rational basis review. See, e.g., Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 658 (6th Cir. 2008) (applying rational basis review to a statute that “bars the candidacy of an official whose principal employment is in connection with an activity which is financed in whole or in part by the federal government” (internal quotation marks and citation omitted)); Brazil-Breashears, 53 F.3d at 793 (conclud-ing that a policy prohibiting state judiciary employees from becoming candidates for public office need only survive rational basis review in part because “the right to run for office is not a fundamental right”). “It is well-established that a law that results in the termination of a public employee who runs for elective office does not need to survive heightened scrutiny to be constitutional.” Molina-Crespo, 547 F.3d at 657.{17} Under rational basis review, a law “need only be rationally related to a le-gitimate government purpose.” Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009). We first consider whether the City’s employment regulations serve a legitimate government purpose. To prevail, the City need only establish “the existence of a conceivable rational basis” for its regulations. Panama City Med. Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1547 (11th Cir. 1994). The City need not prove that a “basis was actually considered by [a] legislative body.” Id. The standard of review that the district court ap-plied to the City’s employment regulations is unclear, but the district court neverthe-less found that “[t]he City does not have a valid interest in preventing City employees from running for and holding non-City elected office.” We disagree and hold that the City has multiple legitimate interests in promulgating its employment regulations.
{18} First, the City has an interest in minimizing, if not eliminating, conflicting demands on public employees. Forty years ago, this Court noted in Manzagol that the duties of political office are almost certain to impose upon state employees conflict-ing demands in terms of time, energy, and loyalty. 1975-NMSC-002, ¶ 18. Manzagol concerned a petitioner who was both “a resident and duly qualified elector of the City and County of Santa Fe and an em-ployee of the State of New Mexico as a Wa-ter Resource Assistant in the Office of the Engineer.” Id. ¶ 2. A statute precluded him from serving in political office. Id. ¶ 13. We observed in Manzagol that the petitioner’s service as a political officer “may very well [have] place[d] him in a position of conflict with his state employment in regard to water rights claimed by the City of Santa Fe.” Id. ¶ 18. The statute, in minimizing the risk of conflicting interests, was therefore a constitutionally “reasonable standard or restriction upon [petitioner’s] employment by the State.” Id. ¶ 19. Similarly, Kane’s service in the New Mexico Legislature may place her in a position of conflict with her City employment in regard to promulgat-ing state laws affecting the AFD.{19} Second, the City has a legitimate interest in limiting the perception of partisan influence among its employees. See Molina-Crespo, 547 F.3d at 658. For example, Kane’s identification with a cer-tain political party could conceivably put pressure, either actual or perceived, on her subordinates “to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs.” U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers AFL-CIO, 413 U.S. 548, 566 (1973).{20} Kane erroneously contends that even if the City’s employment regulations further legitimate governmental purposes as they applied to her, the City’s preclusion of employees from seeking both partisan and non-partisan elective offices is uncon-stitutionally overbroad. Under rational basis review, we do not consider situations such as the claims of candidates seeking non-partisan office that are not before the Court. Manzagol, 1975-NMSC-002, ¶ 16 (“Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be ap-plied unconstitutionally to others, in other situations not before the Court.” (internal
16 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
http://www.nmcompcomm.us/Advance Opinionsquotation marks and citations omitted)); accord Clements v. Fashing, 457 U.S. 957, 960, 972 n.6 (1982) (noting that a litigant contesting a resign-to-run statute “may not challenge the provision’s application to him [or her] on the grounds that the provision might be unconstitutional as ap-plied to a class of officeholders not before the Court”).{21} Having established that the City has legitimate interests in preventing conflict-ing demands on its public servants and avoiding the perception of partisanship within the City administration, we turn to whether the City’s employment regulations are rationally related to these interests. The regulations under attack obviously eliminate the risk that the duties of elective office would impose conflicting demands on City employees; the City’s regulations are therefore a constitutional method of elimi-nating conflicting interests among public employees. Manzagol, 1975-NMSC-002, ¶¶ 18-19. The City’s employment regulations also clearly preclude the possibility that employees would feel pressure to vote or campaign for superiors seeking elective of-fice, and they are therefore rationally related to the governmental purpose of removing either “actual or apparent partisan influ-ence.” See Molina-Crespo, 547 F.3d at 658.{22} We conclude that the City’s employ-ment regulations are rationally related to le-gitimate government purposes and hold that these provisions do not unconstitutionally circumscribe either the right to candidacy or voters’ rights. We next address whether the City unconstitutionally limited Kane’s right to speak on matters of public concern.2. The right to speak on matters of
public concern{23} Kane argues that her right to engage in “pure political speech” was infringed because her right to speak on matters of public concern was harmed when the City threatened her with disciplinary action after she notified her superiors that she was seeking elective office. Our analysis therefore shifts from primarily determin-ing the potentiality of harm to voters and the marketplace of ideas1 to evaluating the
harm done to Kane, as a speaker. Utilizing the rationale in Pickering v. Board of Educa-tion of Township High School District 205, Will County, Illinois, 391 U.S. 563, 568-69 (1968), we determine the constitutionality of restrictions on the right to speak via a balancing test. We must decide “whether the speech at issue addresses a matter of public concern and if so, decid[e] the proper balance between the employee’s constitutional rights and the State’s interest as an employer in promoting efficient provi-sion of public services.” Deemer v. Durell, 110 F. Supp. 2d 1177, 1181 (S.D. Iowa 1999).{24} Most federal circuits have concluded that candidacy for office is a matter of pub-lic concern. See, e.g., Jantzen v. Hawkins, 188 F.3d 1247, 1257 (10th Cir. 1999) (concluding that a candidate’s “political speech—his [or her] candidacy for office—undoubtedly relates to matters of public concern”); Click v. Copeland, 970 F.2d 106, 112 (5th Cir. 1992) (concluding that “running for elected office[] addresse[s] matters of public concern”); see generally Ross Staine, First Amendment Protection for Political Candidacy of Public Employees, 66 SMU L. Rev. 461 (2013) (surveying cases concerning the right to speak on matters of public concern). A minority position holds that the mere fact of candidacy is not a matter of public concern. See, e.g., Carver v. Dennis, 104 F.3d 847, 853 (6th Cir. 1997) (holding that where an employee “was fired [solely] for announcing her intention to take her boss’s office,” the employee did not speak on a matter of public concern), limitation of holding recognized by Green-well v. Parsley, 541 F.3d 401, 403-04 (6th Cir. 2008). For speech to be considered a matter of public concern, this minority position requires that potential candidates express their political viewpoints. Murphy v. Cockrell, 505 F.3d 446, 451 (6th Cir. 2007) (discussing Carver and distinguish-ing “cases in which candidates had been singled out or treated differently based on their political viewpoints or expressions, noting that [the candidate in Carver] was dismissed solely based on the fact of his candidacy, not his political views”).
{25} Kane relies on Murphy, a minority position case, and argues that “the City did not threaten disciplinary action because of the mere fact of Ms. Kane’s candidacy, but did so due to the manner in which Ms. Kane campaigned.” We therefore determine whether under Murphy, Kane faced adverse employment action due to expressing her political viewpoints.{26} In Murphy, a Democratic subordi-nate ran against a Republican supervisor for an elective office. Id. at 448. During the campaign, the subordinate “attacked [the supervisor’s] perceived inexperience” for the office. Id. When the supervisor pre-vailed, the subordinate was discharged. Id. at 449. Murphy held that the subordinate’s campaign speech was protected under the First Amendment and employed the bal-ancing prong of the Pickering test. Murphy, 505 F.3d at 452.{27} Kane attempts to analogize her situa-tion to the situation in Murphy. She alleges that unlike previous AFD employees who sought elective office, she notified her supe-riors of her intention to run; she was threat-ened with potential disciplinary treatment because she chose to disregard the City’s employment regulations; and other City employees were not disciplined for their candidacies because they did not notify the City of their political aspirations. Kane pre-sumably is contending that the City’s threat of discipline was unconstitutional under Murphy because the threat amounted to an attack on the expression of her political viewpoints, since the threat followed from Kane’s notification of her candidacy.{28} Murphy is distinguishable from the case at bar. The subordinate in Murphy was not discharged pursuant to a personnel regulation that precluded her candidacy, see generally 505 F.3d 446, but was termi-nated for campaign speech that reflected negatively on her supervisor. Id. at 451-52. Thus, the supervisor in Murphy had discretion in discharging the subordinate. Consequently, the supervisor, in choosing to discharge the subordinate on the basis of campaign speech, effectively politicized a personnel decision2 in a manner that
1When Anderson analyzed a barrier to ballot access, the United States Supreme Court began its analysis “by noting that [its] primary concern [was] not the interest of [the] candidate . . . , but rather, the interests of the voters who chose to associate together to express their support for [that candidate] and the views he espoused.” 460 U.S. at 806. 2We note that the politicization of personnel decisions can damage employee morale and can be harmful to government efficiency. See Phillips v. City of Dallas, 781 F.3d 772, 780 (5th Cir. 2015); Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1314-15 (Fed. Cir. 2003). By contrast, employment regulations precluding government employees from holding or seeking elective office prevent the politicization of personnel decisions. See Phillips, 781 F.3d at 780; Briggs, 331 F.3d at 1314-15. Thus, whereas Murphy involved the politicization of a personnel decision, 505 F.3d at 451-52, in the case at bar, the City was merely attempting to implement provisions that preclude politicization within the government workforce. Kane’s reliance on Murphy is therefore misplaced.
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http://www.nmcompcomm.us/Advance Opinionscircumscribed political expression beyond that mandated by law. In contrast, Kane was threatened with discipline pursuant to the City Personnel Rules. This threat of discipline was therefore not an arbitrary attempt to limit political expression, but instead was an attempt to enforce existing employment regulations. Morever, unlike the subordinate in Murphy, Kane does not allege facts to suggest that she was attacked for expressing a political viewpoint. For example, she did not attack the credentials of a candidate for public office. She merely alleges that she was attacked for notifying her superiors of her intention to run for elective office. Kane essentially alleges that she was attacked for announcing her candidacy. However, “the mere fact of candidacy [is] not constitutionally pro-tected, [whereas] the expression of one’s political belief still [falls] under the ambit of the First Amendment.” 503 F.3d at 451. Therefore, under Murphy, Kane’s right to speak on a matter of public concern was not violated because the mere fact of can-didacy is not a matter of public concern.{29} Moreover, even if we were to de-cide that the mere fact of candidacy was a matter of public concern, Kane would still not prevail. Laws that preclude gov-ernment employees from a wide range of political activities have been upheld as constitutional; constitutionally pro-hibited activities include “raising money for, publicly endorsing, or campaigning for political candidates; serving as an officer of a political club; participating as a delegate in a political convention or running for office in a political party; and writing letters on political subjects to newspapers.” Phillips v. City of Dallas, 781 F.3d 772, 780 (5th Cir. 2015). These laws are justifiable because political activity may become a basis for the preferential treatment of employees, damage morale, and therefore impair government ef-ficiency. See id.; Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1314-15 (Fed. Cir. 2003). Thus, even when the mere fact of candidacy is considered a matter of a public concern, employment regulations prohibiting employees from running for elective office are constitutional. See, e.g., Phillips, 781 F.3d at 774, 783 (uphold-ing the constitutionality of a municipal regulation that “prevented city employees from seeking office in any county overlap-ping the city”).
{30} In conclusion, Kane’s right to speak on matters of public concern was not violated. Having already held that the City’s employment regulations do not violate either candidates’ or voters’ rights, we will not hold unconstitutional the City’s attempts to apply its employment regulations by threatening non-complying employees with discipline.B. The City’s Employment Provisions
Do Not Violate Article VII, Section 2 of the New Mexico Constitution Because They Are Permissible Qualifications and Standards for Holding Appointive Public Positions Under Article VII, Section 2(B)
{31} Kane next argues that the City’s em-ployment regulations add a qualification for holding elective public office—that the citizen not be a City employee—in viola-tion of Article VII, Section 2(A). The City argues that the regulations do not impose additional eligibility requirements for elective public office in conflict with those set by the New Mexico Constitution, but rather constitute permissible qualifications and standards for employment in an ap-pointive position with the City. See N.M. Const. art. VII, § 2(B). The parties differ in their interpretations of Section VII, Section 2 which provides, in relevant part:
A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution.B. The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive position by any public officer or employee.
{32} Whose interpretation is correct nec-essarily turns on whether the City Charter and City Personnel Rules prohibiting city employees from simultaneously running for elective office or holding elective office are a qualification for elective office or a qualification and standard for holding an appointive public position. Article VII, Section 2(A) prohibits any qualifications for elective public office beyond those enu-merated in the New Mexico Constitution, see Cottrell v. Santillanes, 1995-NMCA-090, ¶¶ 7-8, 120 N.M. 367, 901 P.2d 785, while Article II, Section 2(B) provides leg-
islative authority to promulgate qualifica-tions and standards for holding appointive positions by public officers or employees. Manzagol, 1975-NMSC-002, ¶ 13.{33} The legislative history of Article VII, Section 2 indicates that there is a distinction between qualifications for elective public office and qualifications and standards for appointive positions. Prior to 1961, the 1921 version of Article VII, Section 2 broadly applied to any public office; it explicitly provided that “[e]very citizen of the United States who is a legal resident of the state and is a qualified elec-tor therein, shall be qualified to hold any public office in the state except as other-wise provided in this constitution.” N.M. Const. art. VII, § 2 (as amended September 20, 1921). In 1961 New Mexico legislators, due to the breadth of the 1921 version of Article VII, Section 2, sought voters’ adoption of an amendment to Article VII, Section 2 to assure the constitutionality of the Personnel Act, NMSA 1953, §§ 5-4-28 to -46 (1961) (now recodified as NMSA 1978, §§ 10-9-1 to -25 (1961, as amended through 2014)), which established a sys-tem of personnel administration in state government. See 1961 N.M. Laws, ch. 240, §§ 1-21.{34} Article VII, Section 2 was amended to divide the section into three subsections effective September 19, 1961. Subsection A inserted “elective” before “public office” and deleted “in the state” thereafter; Sub-section B inserted new material address-ing “an appointive position by any public officer or employee”; and Subsection C is not relevant to this case. Thus, the 1961 amendment to Article VII, Sections 2(A) and (B) provided that:
A. Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this Constitution.B. The legislature may provide by law for such qualifications and standards as may be necessary for holding an appointive position by any public officer or employee.3
{35} Subsection A concerns qualifica-tions for “elective public office,” N.M. Const. art. VII, § 2(A), and Subsection B concerns “qualifications and standards . . . for holding an appointive position by any
3A subsequent 1973 amendment only affected Subsection C of Article VII, Section 2 of the New Mexico Constitution. Therefore, the 1961 amendments to Article VII, Section 2 reflect Subsections A and B in their current form.
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http://www.nmcompcomm.us/Advance Opinionspublic officer or employee,” N.M. Const. art. VII, § 2(B). Elective public offices are distinguishable from appointive positions, which is why they are treated differently in our case law. According to Black’s Law Dictionary at 517-18 (6th ed. 1990), an election is defined as “[a]n expression of choice by the voters of a public body politic,” whereas the term “appoint” is used “where exclusive power and authority is given to one person, officer, or body to name persons to hold certain offices,” id. at 99. Essentially, elected public offices are chosen by voters, while appointed offices are generally designated by one person, officer, or body with the exclusive power and authority to make such a designation for a given public office. See id. at 99. If a position is not an elective public office, Article VII, Section 2(A) is not implicated. Daniels v. Watson, 1966-NMSC-011, ¶¶ 5-6, 75 N.M. 661, 410 P.2d 193 (noting that Article VII, Section 2(A) had no applica-tion to qualifications and standards for member positions on the board of a junior college district because those positions were “appointive rather than elective”).{36} The 1961 amendment indicates that qualifications for elective public office can only be promulgated through the New Mexico Constitution. N.M. Const. art VII, § 2(A). By contrast, Article VII, Section 2(B)4 grants the Legislature authority to promulgate qualifications and standards for appointive positions such as the em-ployment conditions promulgated in the Personnel Act. Manzagol, 1975-NMSC-002, ¶ 13.{37} When the Legislature amended the Personnel Act in 1963 to conform to the 1961 amendment of Article VII, Section 2, it provided that
[t]he purpose of the Personnel Act is to establish for New Mexico a system of personnel administra-tion based solely on qualification and ability, which will provide greater economy and efficiency in the management of state affairs. The Personnel Act is enacted under and pursuant to the provi-sions of article 7, section 2 of the Constitution of New Mexico, as amended.
NMSA 1953, § 5-4-29 (1963) (citation omitted). The last sentence of Section 5-4-29 was added in 1963 to reflect that
the Legislature was specifically autho-rized to enact the entire Personnel Act under Article VII, Section 2, as amended. The stated purpose of the Personnel Act indicates the Legislature believed that in providing qualifications and standards for appointive positions, the entire Personnel Act was in jeopardy of being declared unconstitutional under the 1921 version of Article VII, Section 2. Consequently, the Personnel Act’s statement of purpose recognizes that Article VII, Section 2(B) conveys authority to create qualifications and standards for appointive public posi-tions, which includes employee positions.{38} The District Attorney Personnel and Compensation Act, NMSA 1978, §§ 36-1A-1 to -15 (1991, as amended through 1999), similarly concerns a system of personnel administration for district at-torneys “based solely on qualification and ability [and] is enacted pursuant to the provisions of Article 7, Section 2 of the constitution of New Mexico.” Section 36-1A-2. Importantly, the District Attorney Personnel and Compensation Act does not contain any provisions preventing district attorney personnel from seeking or hold-ing elective public office. See generally §§ 36-1A-1 to -15. The omission of language concerning the seeking or holding of elec-tive office constitutes additional evidence that Article VII, Section 2(B) was believed by the Legislature to be necessary to ensure the constitutionality of legislation that addresses public employee qualifications and standards. There is no indication of legislative concern over qualifications for elective public office.{39} We must next determine whether the City Charter and employee regula-tions are impermissible “qualifi[cations] to hold any elective public office” within the meaning of Article VII, Section 2(A) or are permissible “qualifications and standards . . . for holding an appointive position by any public officer or employee” within the meaning of Article VII, Section 2(B). The Manzagol court held that NMSA 1953, Section 5-4-42(B) (Vol. 2, 2nd Repl., Part 1, 1974) of the Personnel Act—which like the City’s employment regulations prohib-ited state employees from holding political office—was not a qualification for holding elective public office, and that Article VII, Section 2(A) was not implicated by the Personnel Act. See 1975-NMSC-002, ¶ 13.
No effort is being made [by Sec-tion 5-4-42(B)] to impose any restriction upon the elective public office which Petitioner holds or upon him as the holder of that office. It is his appointive position as a “public officer or employee” which is in danger by his persistent action in holding a “political office.”
Manzagol, 1975-NMSC-002, ¶ 13.{40} Legal precedent supports Manzagol’s distinction between impermissible, ad-ditional qualifications for elective public office and permissible employment regu-lations for appointive positions. In New Mexico, a qualified individual is one who is eligible for elective public office. Bd. of Comm’rs of Guadalupe Cty. v. Dist. Ct. of Fourth Jud. Dist., 1924-NMSC-009, ¶ 29, 29 N.M. 244, 223 P. 516. Article VII, Section 2(A) only concerns the class of persons eligible to be chosen for elec-tive public office; it does not concern the separate employment regulations this class of persons may have. Consequently, “[t]he requirement that the holder of [an appointive] public office must tender his [or her] resignation upon becoming a candidate for another office, or that his [or her] filing for another office would work a resignation ipso facto, does not prescribe additional qualifications for the [elective public] office.” Mulholland v. Ayers, 99 P.2d 234, 239 (Mont. 1940). This is because “[a] person may possess the requisite qualifications or may be eligible [for] many different offices.” Id. “The legal requirement, however, that he [or she] may not hold more than one [public office] at a time does not affect his [or her] eligibility to hold them all.” Id.{41} Under Manzagol, the City’s employ-ee regulations neither preclude Kane from holding elective office, City Charter art. X, § 3, nor from seeking elective office, City Personnel Rules § 311.3. As such, the City’s employee regulations are not qualifications within the meaning of Article VII, Section 2(A). 1975-NMSC-002, ¶ 13. Instead, the City’s employee regulations are permis-sible “qualifications and standards . . . for holding an appointive position” within the meaning of Article VII, Section 2(B). Kane’s appointive position as a firefighter did not render her ineligible for the elective public office of a state legislator; instead,
4The Personnel Act was passed prior to September 19, 1961, when Article VII, Section 2(B) was promulgated. See 1961 N.M. Laws, ch. 240, §§ 1-21. This chronology suggests that the Legislature wanted to ensure that the original form of Article VII, Section 2 did not render the Personnel Act unconstitutional.
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http://www.nmcompcomm.us/Advance Opinionsher campaign for and service as a state legislator precluded her from continuing her appointive position as a firefighter. As in Manzagol, we conclude that in prevent-ing Kane from retaining her appointive position as a firefighter while campaigning for or serving in elective public office, the City’s employment regulations are permis-sible “qualifications and standards . . . for holding an appointive position” under the meaning of Article VII, Section 2(B).{42} Nonetheless, Kane relies on Cottrell to argue that the City’s employment regula-tions are impermissible qualifications for elective public office. Cottrell concerned a municipal charter that required “candi-dates for the Albuquerque City Council not [to] have served two prior terms.” 1995-NMCA-090, ¶ 16. The issue was whether this provision constituted an impermissible qualification on elective public office in contravention of Article VII, Section 2(A). Cottrell, 1995-NMCA-090, ¶¶ 6-8. The court in Cottrell read Article VII, Section 2(A) in conjunction with Article V, Section 13 of the New Mexico Constitution5 and concluded that under the New Mexico Constitution, “any citizen who is a qualified voter can hold any municipal elected office subject only to the residency requirement.” 1995-NMCA-090, ¶ 7. Because the term limit provision prevented qualified voters from holding elective office, the provision constituted a qualification on elective public office. Id. ¶¶ 7-8. This additional qualification was impermissible because “the sole means of adopting additional qualifications [for elective public office] is by constitutional amendment.” Id. ¶ 8. Not even the Home Rule Amendment afforded municipalities the power to impose additional qualifica-tions on elective office. Id. ¶ 9. Cottrell therefore held that Article VII, Section 2 “preempts a home rule municipality’s power to adopt additional qualifications for elected office within the state beyond those set forth in [the New Mexico] Con-stitution.” Cottrell, 1995-NMCA-090, ¶ 1.{43} Kane contends that her situation is analogous to the situation in Cottrell. We disagree. Cottrell properly stands for the proposition that under Article VII, Section 2(A), only amendments to the Constitu-tion can permissibly add qualifications to elective public office. 1995-NMCA-090, ¶ 8. However, this case is clearly distin-
guishable. We have already established that the City’s employment provisions do not constitute qualifications for elective public office; therefore, Article VII, Section 2(A) is not implicated. Indeed, Cottrell recognized, albeit in dicta, that Article X, Section 3 of the City Charter merely regu-lates conflicts of interest concerning city employees and does not add qualifications for elective public office. 1995-NMCA-090, ¶ 15. Thus, Cottrell’s holding concerning unconstitutional additional qualifications to elective public office “in no way affects” the constitutionality of Article X, Section 3 of the City Charter. 1995-NMCA-090, ¶ 15.{44} We next determine whether the City has the authority to promulgate qualifica-tions and standards within the meaning of Article VII, Section 2(B). The Manzagol court recognized that under Article VII, Section 2(B), legislative authority exists to create the conditions of employment that preclude a state employee from holding an elected public office. 1975-NMSC-002, ¶ 13.
Clearly, the Legislature had the constitutional power under art. 7, § 2, subd. B . . . to enact 5-4-42(B) . . . and to thereby provide, as a qualification or standard for his [or her] continued employment by the State in a position covered by the . . . Personnel Act, that he [or she] not hold “political office.”
Manzagol, 1975-NMSC-002, ¶ 13. How-ever, Manzagol does not specifically ad-dress whether municipalities may adopt regulations addressing personnel admin-istration. We hold that under NMSA 1978, Section 3-13-4 (1965), municipalities have been delegated the legislative authority articulated in Article VII, Section 2(B) to enact qualifications and standards for appointive employee positions.{45} In 1994, the Court of Appeals noted that Section 3-13-4 authorized munici-palities to create “merit system ordinances that apply to employees.” Webb v. Vill. of Ruidoso Downs, 1994-NMCA-026, ¶ 9, 117 N.M. 253, 871 P.2d 17. Under Section 3-13-4(A), municipalities may promulgate “reasonable restrictions or prohibitions on political activities which are deemed detrimental to” municipal merit systems. Consequently, pursuant to Section 3-13-4(A), municipalities have the legislative
authority to impose restrictions on po-litical activities that under Manzagol are qualifications and standards within the meaning of Article VII, Section 2(B). 1975-NMSC-002, ¶ 13. As an aside, we note that employee regulations circumscribing the political activities of public employees pro-mote important governmental interests, such as
(1) encouraging public officials to devote themselves exclusively to the duties of their office, (2) reducing the possibility of public subsidies for officials merely us-ing their office as a stepping stone, (3) preventing abuse of office before and after election, and (4) protecting the expectations of the electorate voting a candidate into [public] office.
Fasi v. Cayetano, 752 F. Supp. 942, 949 (D. Haw. 1990).{46} A municipality is defined as “any incorporated city, town or village.” NMSA 1978, § 3-1-2(G) (1993). The parties do not dispute that the City is a municipal corporation. Therefore, the City has the authority under Section 3-13-4(A) to promulgate qualifications and standards for its employees, including restrictions on political activities. In this case, the parties do not dispute that Kane is an employee of the City. Consequently, the City’s employ-ment regulations prohibiting Kane from seeking or holding elective public office were permissibly promulgated under Ar-ticle VII, Section 2(B) of the New Mexico Constitution and Section 3-13-4(A).C. Whether Section 10-7F-9 Preempts
the City’s Prohibition Against Municipal Employees Seeking Elective Office
{47} Finally, Kane argues that Article X, Section 3 of the City Charter is not a valid exercise of the City’s municipal powers because it is preempted by Section 10-7F-9 of the HDOA. Section 10-7F-9 provides that “[a] hazardous duty officer shall not be prohibited by an employer from engaging in any political activity when the officer is off duty, except as otherwise provided by law.” According to Kane, although the HDOA contemplates the possibility that other laws may circumscribe a hazardous duty officer’s political activities, Article X, Section 3 of the City Charter is not a valid law that limits her political activities. In
5Article V, Section 13 of the New Mexico Constitution provides that “[a]ll district and municipal officers, county commissioners, school board members and municipal governing body members shall be residents of the political subdivision or district from which they are elected or for which they are appointed.”
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http://www.nmcompcomm.us/Advance Opinionsdetermining the permissibility of Article X, Section 3 of the City Charter, we first provide an overview of city charters before applying the preemption test from State ex rel. Haynes v. Bonem, 1992-NMSC-062, ¶ 14, 114 N.M. 627, 845 P.2d 150.{48} In 1970, New Mexico adopted a state constitutional amendment that “establishes the right of the citizens of a municipality to adopt a home rule charter.” Id. ¶ 11 (citing Article X, Section 6). Municipalities that adopt home rule charters “may exercise all legislative powers and perform all func-tions not expressly denied by general law or charter.” N.M. Const. art. X, § 6(D). “Thus, home rule municipalities do not look to the legislature for a grant of power to legislate, but only look to statutes to determine if any express limitations have been placed on that power.” Haynes, 1992-NMSC-062, ¶ 11. By contrast, “[t]hose municipalities that choose not to adopt a home rule charter must still depend on the legislature for their power to act.” Id. Municipal home rule was created to “enable municipalities to con-duct their own business and control their own affairs, to the fullest possible extent, in their own way.” Id. ¶ 12 (internal quotation marks and citations omitted); see also N.M. Const. art. X, § 6(E) (noting that the pur-pose of enabling home rule “is to provide for maximum local self-government [such that a] liberal construction shall be given to the powers of municipalities”).{49} Determining whether Section 10-7F-9 preempts Article X, Section 3 of the City Charter requires a two-step analysis. We initially determine whether Section 10-7F-9 is a general law. Haynes, 1992-NMSC-062, ¶ 14. If we determine that Section 10-7F-9 is a general law, we then determine whether the provision expressly denies a home rule municipal-ity the authority to prohibit its employees from seeking elective office. See Haynes, 1992-NMSC-062, ¶ 14.{50} Kane argues that Article X, Sec-tion 3 of the City Charter is not a valid exercise of the City’s legislative authority. Under Kane’s interpretation of Section 10-7F-9, only the Legislature can deviate from Section 10-7F-9’s default position of protecting firefighters’ political activities. According to Kane, Section 10-7F-9 is a general law. She then contends that this general law deprives the City of the power to circumscribe hazardous duty officers’ political activities because the Legislature evinced an intent to uniformly regulate employer-employee relations, at least with respect to hazardous duty officers.
1. Whether Section 10-7F-9 is a general law
{51} A general law is “a law that applies generally throughout the state and is of statewide concern as contrasted to ‘local’ or ‘municipal’ law.” Haynes, 1992-NMSC-062, ¶ 17.
In defining the term ‘general law’ as used in the home rule amend-ment, this Court . . . attempt[ed] to impart the basic notion, ap-plied across the country, that in order for a statute to override an enactment of a home rule mu-nicipality, the statute must relate to a matter of statewide concern.
Id. For example, City of Albuquerque v. New Mexico Public Service Commission, 1993-NMSC-021, ¶ 24, 115 N.M. 521, 854 P.2d 348 held that utility rate-making “is a matter of statewide rather than local con-cern . . . because a proposed service rate for one municipality can affect rates to other municipalities in the state.” By contrast, Haynes held that state provisions setting the number of municipal commissioners did not touch upon a matter of general concern, and allowed a municipality to “provide for a different number [of com-missioners] as set out in its charter,” 1992-NMSC-062, ¶ 1, because “the number of commissioners in the governing body[] is precisely the sort of matter intended to fall within the decisionmaking power of a home rule municipality.” Id. ¶ 21. The number of commissioners a municipality has “is predominantly, if not entirely, of interest to the citizens of the” municipality for which these commissioners serve. Id.{52} We hold that Section 10-7F-9 is not a general law. The regulation of govern-ment employees’ activities under the First Amendment of the United States Consti-tution touches upon issues of local, not statewide, concern. Municipalities may provide for the convenience of their in-habitants. NMSA 1978, § 3-17-1(B) (1993) (“The governing body of a municipality may adopt ordinances or resolutions not inconsistent with the laws of New Mexico for the purpose of . . . providing for the safety, preserving the health, promoting the prosperity and improving the mor-als, order, comfort and convenience of the municipality and its inhabitants.”). Regulating the First Amendment activi-ties of government employees can further the efficiency of governmental operations. See Briggs, 331 F.3d at 1313-15 (noting that determining the permissibility of restric-tions on the First Amendment activities of
government employees involves a balanc-ing of governmental efficiency interests against employee rights and indicating that First Amendment activities may, in some circumstances, impair efficiency). “[I]ncreased efficiency of operation may reasonably be expected to promote the service, accommodation, and convenience of the public.” Lyons Transp. Co. v. Pa. Pub. Util. Comm’n, 61 A.2d 362, 365 (Pa. Super. Ct. 1948). Thus, municipalities have an interest in promoting the convenience of their inhabitants, and regulations of municipal employees’ First Amendment activities further the convenience of such inhabitants. Because Section 10-7F-9 touches upon the regulation of municipal employees’ First Amendment activities, we conclude that Section 10-7F-9 is not a general law regulating a topic of statewide concern.{53} Kane contends that the employment relationships of hazardous duty officers are matters of general concern because “[a]s the members of the public served every day by hazardous duty officers, New Mexicans . . . deserve to know that the relationship between these heroes as their employers is as respectful as possible.” This argument is without merit. Under the facts in Haynes, it could have been said that all citizens statewide have an interest in the form of their local government. However, this does not mean that a state statute implicating local forms of government raised issues of statewide concern because the constituen-cies of local governments have the most interest in their respective forms of local government. Haynes, 1992-NMSC-062, ¶ 21. It also can be said that all citizens have an interest in how hazardous duty officers are regulated. However, employment regu-lations concerning hazardous duty officers touch upon the local interests of the citi-zens such officers serve, and not the State’s broader interests. See McGee v. Civil Serv. Bd. of City of Portland, 154 P.3d 135, 139 (Or. Ct. App. 2007) (“[T]he administra-tive machinery by which the employment and discharge of city fire[fighters] is to be determined is a matter of local concern.” (alteration in original) (internal quotation marks and citation omitted)).{54} We conclude that Section 10-7F-9 does not preempt the City’s employment regulations because it is not a general law. However, even if Section 10-7F-9 were a general law, it would not preempt the City’s employment regulations because the restrictions do not conflict with Section 10-7F-9.
Monday, December 28, 2015 • State Bar Center, AlbuquerqueRegistration will begin half an hour prior to each course.
This revived series of ethics courses taught by members of the Disciplinary Board of the New Mexico Supreme Court, Office of Disciplinary Counsel will provide concise, informative, practical and useful information for the ethical practice of law. Take one, two, three, four, five or all six!
1.0-6.0 EP
9 a.m. Ethically Managing Your Practice 1.0 EP (Previously presented on March 13, 2015) Standard Fee: $38 Webcast Fee: $46 From how to confirm that new representation to how to orderly terminate representation and everything in between, this
session will cover the daily challenges faced by lawyers trying to practice law and run a business.
10 a.m. Break
10:15 a.m. “Show Me the Money” – Attorney’s Fees and Trust Accounting 1.0 EP Standard Fee: $38 Webcast Fee: $46 This session will discuss what is and is not a reasonable attorneys’ fee, whether you can charge flat fees, the prohibition
against non-refundable fees, fee-splitting and contingency fee agreements. Attendees will also have a “hands-on” chance to learn about and demonstrate the proper management of a trust account, including ledger keeping and reconciliation and a discussion on the “dos and don’ts” of trust accounts.
11:15 a.m. Break
11:30 a.m. Conflicts of Interest 1.0 EP (Previously presented on March 13, 2015) Standard Fee: $38 Webcast Fee: $46 How to recognize them, how to avoid them and what to do when you wake up in the middle of one; this session will cover the
common conflicts that arise in practice.
12:30 p.m. Lunch (provided at the State Bar Center)
1:30 p.m. A Little Planning Now; A lot Less Panic Later-Succession and Transition Planning for Lawyers 1.0 EP Standard Fee: $38 Webcast Fee: $46 This session will discuss the need for and method by which attorneys can plan for the unplanned; i.e. practice interruptions
and cessations resulting from conditions beyond a lawyer’s control.
2:30 p.m. Break
2:45 p.m. Civility and Professionalism 1.0 EP (Previously presented on March 13, 2015) Standard Fee: $38 Webcast Fee: $46 How do and should lawyers treat one another, the Courts, their opposing parties and their own clients? This session will
discuss a growing concern about incivility and unprofessionalism in the profession, whether and when such behavior violates the Rules of Professional Conduct and what can and is being done to address the issues.
3:45 p.m. Break
4 p.m. Everything Old is New Again- How the Disciplinary Board Works Standard Fee: $38 Webcast Fee: $46 This session will provide attendees with insight into how the disciplinary system works from complaint forward; upcoming
changes to the Rules of Professional Conduct and the Rules Governing Discipline; and Board Initiatives that extend beyond discipline.
5 p.m. Adjournment
Ethicspalooza Redux—Winter 2015 Editionpresented by Christing Long, Jane Gagne, and William Slease
State Bar Center, AlbuquerqueNational SpeakersWhat NASCAR, Jay-Z and the Jersey Shore Teach About Attorney Ethicspresented by Stuart Teicher, Esq., the CLE ‘Performer’Thursday, Dec. 17, 2015 • 8:30-11:45 a.m. State Bar Center, Albuquerque
$145 Standard Fee$125 Government and legal services attorneys, and Paralegal Division members$159 Webcast Fee
The seemingly unrelated topics of art, sports and modern culture all carry interesting and valuable messages for attorneys. In this one-of-a-kind seminar, Stuart Teicher explains how various elements of popular culture provide poignant lessons that help us understand and appreciate the rules of professional conduct. Whether it’s being aware of misconduct or maintaining competence, Teicher delivers an innovative, captivating seminar that teaches valuable lessons about attorney ethics.
This session provides an explanation of the underlying values promoted by the New Mexico Rules of Professional Conduct and the manner in which they are reflected in popular culture. Learn about how the Rules of Professional Conduct can actually be used as tools to make better attorneys and how certain behaviors are promoted by the rules.
3.0 EP
8 a.m. Registration and Continental Breakfast8:30 a.m. Misconduct, Evolving Rules and Trends in Rules
about Discriminatory Behavior10 a.m. Break10:15 a.m. Misrepresentation, Advertising, Solicitation
and Vulnerabilities
11 a.m. The Nobility of the Profession, the “Grand Troika” of Ethics Rules, Mastering Skills, Substantive Law, Bad Personal Behavior and Substance Abuse
11:45 a.m. Adjournment
Talking ’Bout My Generation: Professional Responsibility Dilemmas Among Generationspresented by Stuart Teicher, Esq., the CLE ‘Performer’
Thursday, Dec. 17, 2015 • 12:30-3:45 p.m. State Bar Center, Albuquerque
$145 Standard Fee$125 Government and legal services attorneys, and Paralegal Division members$159 Webcast Fee
The Who may have been referring to a particular generation, but they’re not the only one with problems. Every generation of lawyers faces tough professional obstacles. In this program, Stuart Teicher, the “CLE Performer”, explores a variety of professional conduct topics that are near and dear to each generation’s heart.
3.0 EP
Noon Registration and Lunch (provided at the State Bar Center)
12:30 p.m. Tweeting From the Courtroom and Confidentiality When Is Supervision of Younger Generations
Appropriate?1:30 p.m. Anti-bullying Rules, Limits of “Zealous Advocacy”
and What It Means To Be Part of the Larger Professional Community
2 p.m. Break2:15 p.m. The Evolution of Larger Professionalism Goals as
Monday, Dec. 21, 2015 State Bar Center, Albuquerque
The Cybersleuth’s Guide to the Internetfeaturing Carole Levitt and Mark Rosch, Internet for Lawyers
Wednesday, Dec. 23, 2015 • 9 a.m.-4:15 p.m. State Bar Center, Albuquerque
5.0 G 1.0 EP
State Bar Center, AlbuquerqueNational Speakers
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In the morning session, best-selling ABA authors and internationally renowned CLE speakers, Carole Levitt, Esq., and Mark Rosch, of Internet for Lawyers, will reveal hidden Google search features and shortcuts to speed up your investigative/legal research. In the afternoon session, you will learn how to successfully navigate through many social media sites to find and use profiles for background and investigative research and as evidence … ethically.
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1.0 EP2.0 G
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8 a.m. Registration and Continental Breakfast8:30 a.m. Trials of the Century—Why are they famous,
what can we learn from them? Cross–Examination: OJ Simpson Trial—199510:30 a.m. Break10: 45 a.m. The Scopes Monkey Trial—1925 Lindbergh Kidnapping Trial—193511:40 a.m. “Hissteria” Alger Hiss, Statesman or Spy? The Ethics of Dealing with Difficult Witnesses
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1 p.m. “Hissteria” Alger Hiss, Statesman or Spy? The Ethics of Dealing with Difficult Witnesses
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(L.A. Times Bombing Trial) 3:25 p.m. The Clinton Impeachment—19993:50 p.m. What Was the Trial of the Century?
Learning from the Trials of the Century4 p.m. Adjournment
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Avoiding Retirement Pitfalls (2015 Family Law Institute)3.0 G 12:30-4 p.m.$145
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Legal Writing-From Fiction to Fact The Surprisingly Useful Things Legal Writers Can Learn From Fiction 2.0 G, 1.0 EP 9 a.m-12:15 p.m.$145
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denies the City the power to prohibit its employees from seeking elective office
{55} If a statute is a general law, we next inquire whether the provision expressly denies a home rule municipality the right to prohibit its employees from seeking elective office. Haynes, 1992-NMSC-062, ¶ 14. “[A]ny New Mexico law that clearly intends to preempt a governmental area [qualifies as an express denial] without necessarily stating that affected munici-palities must comply and cannot operate to the contrary.” Id. ¶ 22 (internal quotation marks and citation omitted). Kane asserts that the City’s employment regulations are preempted by Section 10-7F-9. Kane reasons that the HDOA, through enumer-ating various rights that are guaranteed to hazardous duty officers, evinces an intent by the Legislature to address New Mexico municipalities’ “record of abusing the[] rights of hazardous duty officers,” or to at least prevent such abuse.{56} We disagree. The HDOA contains no requirement for a uniform law con-cerning the proscription of hazardous duty officers’ political activities. See §§ 10-7F-1 to -9. More importantly, although Section 10-7F-9 states that “[a] hazardous duty officer shall not be prohibited by an employer from engaging in any political activity when the officer is off duty,” the provision also provides the restriction “except as otherwise provided by law.” This indicates that the HDOA contemplates that regulations of hazardous duty officers’ political activities will not be uniform.{57} We conclude that the City correctly argues that “Article X, Section 3 of the City’s home rule Charter falls within the HDOA’s ‘except as otherwise provided by law’ exception” such that Section 10-7F-9 does not preempt municipal employment regulations. The phrase “except as oth-erwise provided by law” should be read broadly so as to include municipal laws. In Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep’t, we char-acterized the phrase “as otherwise provided by law” as a catch-all term that includes statutes, regulations, and constitutional provisions. See 2012-NMSC-026, ¶ 13, 283 P.3d 853 (internal quotation marks and citation omitted). Moreover, municipal en-actments are considered law. City of Aztec v. Gurule, 2010-NMSC-006, ¶ 16, 147 N.M. 693, 228 P.3d 477 (“[M]unicipal ordinances are law and may be judicially noticed as such.”). Finally, we have already concluded
that under Section 3-13-4(A), munici-palities have been delegated the legislative authority to promulgate qualifications and standards for appointed employees, including firefighters. We therefore hold that Section 10-7F-9 does not preempt the City’s employment regulations as applied to hazardous duty officers.D. Whether Kane Is Entitled to
Attorney’s Fees{58} New Mexico generally follows the American rule, which provides that each party should bear its own attorney’s fees unless a statute, court rule, or contrac-tual agreement authorizes an award of attorney’s fees. See Paz v. Tijerina, 2007-NMCA-109, ¶ 9, 142 N.M. 391, 165 P.3d 1167. The relevant statutory exception to the application of the American rule in this case is the Civil Rights Act, 42 U.S.C. § 1988(b) (2000). In any action or proceed-ing to enforce a provision of Sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, Title IX of Public Law 92-318, or Title VI of the Civil Rights Act of 1964, among others, the Court, in its discretion, “may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b).{59} Pursuant to 42 U.S.C. § 1988 and NMSA 1978, Section 44-6-11 (1975), the district court awarded Kane $7,644.50 in attorney’s fees and $242.70 in costs, with interest accruing on those amounts at a rate of 8.75 percent per annum from the date of entry of the order. The City argues that Kane cannot recover attorney’s fees pursuant to 42 U.S.C. § 1988 if this Court reverses the district court’s ruling on Kane’s constitutional claims. Kane argues that the City overstates the burden of prov-ing that one is a prevailing party by noting that the broad language in 42 U.S.C. § 1988 does not explicitly state that a party must also prevail on appeal.{60} We disagree with Kane’s position. When a case is actually litigated and a plaintiff does not win on any significant issue, that plaintiff is not a prevailing party within the meaning of 42 U.S.C. § 1988. Pearson v. Fair, 935 F.2d 401, 415 (1st Cir. 1991) (citing Langton v. Johnston, 928 F.2d 1206, 1224 (1st Cir. 1991)). A “plaintiff must be able to point to a resolution of the dispute which change[d] the legal relation-ship between itself and the defendant.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). “A plaintiff who achieves a transient victory at the threshold of an action can gain no award under [42 U.S.C. § 1988] if, at the
end of the litigation, [his or] her initial suc-cess is undone and [he or] she leaves the courthouse emptyhanded.” Sole v. Wyner, 551 U.S. 74, 78 (2007). We also note that “[a] plaintiff who prevails on one or more state claims but loses on all federal claims will not be eligible for an attorney’s fee award under 42 U.S.C. § 1988.” Bogan v. Sandoval Cty. Planning & Zoning Comm’n, 1994-NMCA-157, ¶ 44, 119 N.M. 334, 890 P.2d 395. As explained above, Kane has no federal, constitutionally-guaranteed right to maintain active City employment while simultaneously seeking or holding elective public state office. Thus, Kane is not entitled to attorney’s fees pursuant to 42 U.S.C. § 1988.III. CONCLUSION{61} The City’s employment regulations do not violate the First Amendment of the United States Constitution. Also, these restrictions do not violate Article VII, Section 2 of the New Mexico Constitution. Moreover, Section 10-7F-9 is not a general law preempting the City’s employment regulations as applied to hazardous duty officers. We therefore reverse the district court’s decision on the merits as well as its award of attorney’s fees.{62} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:PETRA JIMENEZ MAES, JusticeCHARLES W. DANIELS, JusticeSARAH C. BACKUS, JudgeSitting by designationRICHARD C. BOSSON, Justice, specially concurring
BOSSON, Justice (specially concurring){63} We say in this opinion that the City of Albuquerque is not precluding Kane from holding elective office, only from holding city employment while she does so. The City is imposing a condition on employment, not on elective office. But is that really what is going on here? Kane, a career official in the fire department, has the “freedom” to run for office; all she has to do is walk away from her career. Some choice!{64} It seems to me that the City’s em-ployee regulations, stripped of labels and pretense, are exactly what they appear to be. They are a public policy choice by the City to keep its employees away from poli-tics and specifically away from running for office. That policy choice is rooted in history. The Legislature created the same wall for state employees a generation ago.
22 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
http://www.nmcompcomm.us/Advance OpinionsSection 10-9-21(B). Around the same time, the Legislature passed Section 3-13-4 which allowed municipalities to enact a similar merit system that would include employee “restrictions on political activi-ties.” Presumably, holding elective office would constitute prohibited “political activity.”{65} I acknowledge that this very Court a generation ago characterized the State Personnel Act as a restriction on employ-ment only, not on elected office. “No effort is being made to impose any restriction upon the elective public office which [the petitioner Jerry Manzagol] holds or upon him as the holder of that office.” Man-zagol, 1975-NMSC-002, ¶ 13. I call that statement misdirection, not reality. Jerry Manzagol, in order to keep his job with the state, was compelled to surrender his posi-tion as Santa Fe City Councilor, to which he had been duly elected by the citizens of that city. He had very little choice if he wanted to keep his job. We made a mistake with that language forty years ago; I do not know why we would repeat it today.{66} In truth, is this not a little of both, a condition on employment and a prohi-bition on holding elective public office? We do ourselves no harm with such an acknowledgment. Back in the 1960s, to lay the groundwork for the State Personnel Act (and by extension the Albuquerque City Charter), the Legislature and the electorate combined to amend Article 7, Section 2 of the New Mexico Constitution. The Legislature passed Section 2(B) as an exception to Section 2(A), saying in effect that the Legislature may do in a merit-based personnel act for public employees
what Section 2(A) would otherwise pro-hibit—imposing an additional qualifica-tion on holding elective public office. The result: everyone is qualified to hold “any elective public office” except as provided in Section 2(B) for public employees.{67} The Constitution did not need amending just to pass a personnel act; it needed amending to pass a personnel act that restricted the right to hold elective public office, a restriction that would oth-erwise have run afoul of Section 2(A). That is exactly why the people went to all the trouble to amend Section 2. Implicitly, this Court acknowledged as much, ironically, in the same Manzagol opinion. “Clearly, the Legislature had the constitutional power under art. 7, § 2, subd. B, to enact 5-4-42(B), and to thereby provide, as a qualification or standard for his continued employment by the State in a position covered by the State Personnel Act, that he not hold ‘political office.’” Manzagol, 1975-NMSC-002, ¶ 13 (internal citations omitted). In other words, but for Section B, Section A might very well have been a problem with respect to any ban on hold-ing elective public office.{68} And so, Albuquerque’s restrictions on its employees from holding elective public office are consistent with the New Mexico Constitution. I concede the point and agree with the result reached in the Court’s opinion. Having conceded the legality of the City’s position toward its employee, I could stop there. The wisdom of such a policy—its prudence as a mat-ter of sound public policy—is a matter of legislative discretion, not judicial deter-mination.
{69} But the history of our Constitu-tion suggests that the two cannot always be neatly separated. Our state Founders created a volunteer legislature, one that envisioned public-minded citizens from all walks of life, those who would make the personal sacrifice to come to Santa Fe each year to conduct the people’s business. The Founders offered these volunteers little help—inadequate time and no compensa-tion. But the Founders welcomed all who would serve, including presumably public employees.{70} True to the spirit of those Found-ers, we as a society need those volunteers today more than ever. We need their tal-ent, their energy, and their vision, all at-tributes that can be found in both sectors of our economy, public and private. The public sector is infinitely larger now than in the days of our founding. We should be wary of eliminating whole areas of our society from the potential gene pool from which our best and brightest might be called to Santa Fe. There must be better ways, designed with greater precision, to protect civil service from the excesses of political intrigue than an across-the-board, absolute ban. The City of Albuquerque has benefitted in the past from the service of its municipal employees in the state Legis-lature. Representative Kiki Saavedra is but one who comes to mind. The value of their continued service should, at very least, be subject to intelligent public debate. The stakes at hand, and our continued need for quality legislative service, merit no less.
Bar Bulletin - December 2, 2015 - Volume 54, No. 48 23
http://www.nmcompcomm.us/Advance Opinions
From the New Mexico Court of Appeals
Opinion Number: 2015-NMCA-083
MARGARET M.M. TRACE,Worker-Appellee,
v.UNIVERSITY OF NEW MEXICO HOSPITAL, Self-Insured,
Employer/Insurer-AppellantDocket No. 32,413 (filed May 28, 2015)
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATIONGREGORY D. GRIEGO, Workers’ Compensation Judge
MARGARET M. MCNAMARA TRACEAlbuquerque, New Mexico
Pro Se Appellee
PAUL L. CIVEROLOPAUL L. CIVEROLO, LLC
Albuquerque, New Mexicofor Appellant
Opinion
Michael E. Vigil, Judge{1} This is a workers’ compensation case which presents us with a question of first impression: whether the appointment of a case manager for ongoing coordina-tion of health care services by a workers’ compensation judge (WCJ) constitutes a “litigation expense” in connection with a proceeding before the Workers’ Compen-sation Administration (WCA), thereby exempting the case manager’s fee from the Procurement Code. We conclude that such services do not constitute a “litigation expense” and reverse the order of the WCJ to the contrary.I. BACKGROUND{2} Worker was a registered nurse, work-ing the night shift at University of New Mexico Hospital when she injured her back while lifting and turning a patient on October 5, 1994. On September 1, 1995, Worker filed a claim with the WCA against University of New Mexico Hospital and its insurer, New Mexico Risk Management (collectively Employer). From the begin-ning the case was combative. There was disagreement regarding the compensable injuries, allegations that the employer unilaterally changed treating physicians, that Employer improperly refused pay-ment for necessary medical services, that Employer’s agent interfered with the doctor-patient relationship, that medical services were unjustifiably curtailed or ter-minated, and that compensation benefits were improperly curtailed.
{3} Trial was finally held on May 7-8, 1996, before WCJ Wiltgen, who entered a compensation order on June 3, 1996, concluding that as a direct and proxi-mate result of the October 1994 accident, “Worker suffered an injury to her low back with additional effects on her shoulder, elevated blood pressure and emotional overlay.” WCJ Wiltgen further found that “Worker’s present condition and disabil-ity are permanent” and that Worker had “continuing need for medical care of her job-related injuries including psychologi-cal treatment.”{4} Worker asserts that after entry of the compensation order, Employer’s adjuster “continued to deny various treatments and medications” and that “Worker had increasing pain; some symptoms related to the previous injuries, and other new symptoms.” Worker asserts that there were disputes between Worker’s attorney and Employer’s adjuster and the nurse case manager, as well as a number of claims, for exacerbations or new injuries “due to the denial of care and medical bills,” and complaints for a “pattern of bad faith and unfair claims processing.” Consequently, there were additional mediation confer-ences and hearings before the WCA, with the result that on October 27, 1999, WCJ Wiltgen appointed Ms. St. Martin as “independent nurse case manager” to “coordinate future medicals and treatment and act as nurse case manager.”{5} Additional claims, responses, and motions followed, and issues remained unresolved. Following another mediation conference in December 2003, the parties
agreed that Ms. St. Martin would pick a physician to conduct an independent medical examination. Following the in-dependent medical examination and Ms. St. Martin’s review, she determined that an independent medical panel should be convened. WCJ Wiltgen retired, and the case was reassigned to WCJ Griego in January 2004.{6} Worker filed an amended complaint on April 27, 2004. Following additional hearings, discovery, and the independent medical panel review, a final hearing on the April 27, 2004 amended complaint was set. The final compensation order, filed on February 22, 2006, determined that Worker suffered multiple injuries as a result of the 1994 accident, and that medi-cal treatment, treatment modalities, and alternative therapies “may be necessary in the future,” which “will be authorized in collaboration with the treating physician and nurse case manager.” The compensa-tion order further ordered that “Ms. . . . St. Martin shall continue to act as the court ordered nurse case manager concerning [Worker’s] work related injuries[.]”{7} In 2012, Employer moved that Ms. St. Martin be discontinued from serv-ing as the court-appointed nurse case manager because her employer’s contract with the WCA had expired, and Employer asserted, her continued appointment vio-lated the Procurement Code. WCJ Griego denied the motion, on the basis that the Procurement Code “does not apply to Administrative/Court Ordered Decrees.” Employer moved for reconsideration, and at the hearing WCJ Griego expressed his understanding that because Ms. St. Martin’s appointment was court ordered, it qualified as a litigation exemption under the Procurement Code. WCJ Griego there-fore denied the motion in a memorandum opinion reasoning:
Services can be directed to be paid by Risk Management under the Workers’ Compensation Act to providers who have not entered into a contract with State Risk Management under the procure-ment code. For example, profes-sional services to a worker from an attorney or a physician can be ordered paid by court order. It is not necessary for those services to be provided under a contract under the procurement code. There is no question that the procurement code would be ap-plicable if State of New Mexico
24 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
http://www.nmcompcomm.us/Advance Opinionswere voluntarily providing ser-vices without intervention of the administration. However, the distinguishing characteristic here is that the services being provided are by direction by court order and not being voluntarily provided by Risk Management.
Employer appeals.II. DISCUSSION{8} Employer makes two arguments on appeal: First, the WCA has a statutorily and administratively created system of case management and a WCJ cannot unilaterally order case management by circumventing the system. Second, the WCJ’s order exceeds the WCJ’s author-ity and violates the Procurement Code because the code requires a contract for professional services.{9} In response, Worker argues that Employer did not preserve the issues on appeal. Worker reasons that Employer has complied with Ms. St. Martin being the court-appointed case manager for fifteen years without incident, and this appeal is the first time Appellants have raised the issue. Worker also argues that the WCJ’s order falls within the Procurement Code’s litigation exemption.{10} We first address Worker’s preserva-tion concerns, then we examine the WCA and the Procurement Code.A. Preservation{11} “To preserve a question for review it must appear that a ruling or decision by the [tribunal] was fairly invoked[.]” Rule 12-216(A) NMRA. The principal purpose of this rule is to alert the trial judge to the claimed error, giving the trial court an op-portunity to correct the matter. Madrid v. Roybal, 1991-NMCA-068, ¶ 7, 112 N.M. 354, 815 P.2d 650. Worker argues that Employer failed to invoke a ruling by the WCJ in order to preserve its argument on appeal. We disagree.{12} Following the initial August 29, 2012 order, Employer made a motion to recon-sider the order continuing St. Martin as the nurse case manager. In its motion, Employer asserted that the appointment of St. Martin without a contract violates the Procurement Code. WCJ Griego then held a hearing to address the controversy of St. Martin’s status as the nurse case manager. All parties had the opportunity to address their concerns at the hearing. After hearing Employer’s argument again that the August 29, 2012 order violates the Procurement Code, WCJ Griego disagreed and reaffirmed his ruling.
{13} We therefore conclude that Em-ployer alerted the WCJ to the asserted error it now argues on appeal and that the issue was properly preserved for appellate review.B. Standard of Review{14} Our review requires us to examine the Workers’ Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013), NMSA 1978, § 52-4-3 (1990), regarding case management for health care services, and NMSA 1978, § 13-1-30 (2005) and NMSA 1978, § 13-1-98 (2013), of the Procurement Code. “We apply de novo review to interpret the meaning of a statute.” Jones v. Holiday Inn Express, 2014-NMCA-082, ¶ 10, 331 P.3d 992. “When engaging in statutory construction, our primary concern is to determine and give effect to legislative intent.” Id. (internal quotation marks and citation omitted). “In discerning the Legislature’s intent, we are aided by clas-sic canons of statutory construction, and we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.” Faber v. King, 2015-NMSC-___, ¶ 9, __ P.3d ___ (Nos. 34,204 and 34,194, Mar. 12, 2015) (alteration, internal quotation marks, and citation omitted). We also consider the statute’s function in the comprehensive legislative scheme. Id. C. Workers Compensation Act{15} The Act requires the WCA to estab-lish a “case management” system providing for “the ongoing coordination of health care services provided to an injured or disabled worker[.]” Section 52-4-3(A)-(B). Thus, in providing ongoing coordination of health care services, case managers may be used for developing a treatment plan, monitoring the treatment, and the injured worker’s progress, determining whether other health services are appropriate and cost-effective, and formulating a plan for the injured worker to return to work. Sec-tion 52-4-3(B).{16} Further, the Act directs that the WCA “shall contract with an independent organization” to assist with the administra-tion of the case management system. Sec-tion 52-4-3(C). The administrative rules of the WCA define a “contractor” as “any organization that has a legal services agree-ment currently in effect with the [WCA] for the provision of utilization review or case management[.]” 11.4.7.7(L) NMAC (12/31/2011). When case management
is required, “The WCA will assign cases to its contractor for case management, as provided by the contract in effect.” 11.4.7.14(G)(1)(a) NMAC (01/14/2005)1 and when the WCA refers a case to a case manager, “the WCA shall pay for the case management services pursuant to the contract.” 11.4.7.14(G)(1)(e)(i) NMAC (01/14/2005).{17} The plain language of the statute demonstrates that the Legislature intended the case manager to be a contractor with a contract in effect. The administrative rules implement this intent by creating a framework requiring case managers to be contractors who are paid as provided in the contract. In this case, the contract with Ms. St. Martin’s employer expired. We now turn to whether WCJ Griego could order that Ms. St. Martin continue as Worker’s case manager in the absence of a contract under the Procurement Code.D. Procurement Code{18} The Procurement Code applies to all expenditures by state agencies for the procurement of goods and services from private entities, unless the Procurement Code itself provides otherwise. Section 13-1-30. Here, the WCA requires a contract for case management services and the Procurement Code requires a contract for any services, unless otherwise provided. The only exception which the Worker asks us to consider, and the only exception relied on by WCJ Griego is the litigation exemption under Section 13-1-98(R). This provision of the Procurement Code exempts:
contracts and expenditures for legal subscription and research services and litigation expenses in connection with proceedings before administrative agencies or state or federal courts, including experts, mediators, court report-ers, process servers and witness fees, but not including attorney contracts[.]”
Section 13-1-98(R). {19} We are therefore asked to conclude that the fee of a case manager, responsible for the ongoing coordination of health care services provided to an injured or disabled worker, constitutes a litigation expense in connection with a WCA proceeding because the case manager is appointed by a WCJ. We decline the invitation on the basis that the services provided by a case manager under the WCA are not incurred “in connection with” litigation.
111.4.7.14 NMAC was amended in 2013. We apply the administrative rules that were in effect when the order was entered in 2012.
Bar Bulletin - December 2, 2015 - Volume 54, No. 48 25
http://www.nmcompcomm.us/Advance OpinionsRather, such fees are incurred following a determination that a worker is injured or disabled and entitled to benefits under the WCA, and ongoing coordination of the healthcare services is required. Stated another way, while a case manager’s fee may be the consequence of litigation, such fees are not an expense of litigation.{20} In this case, Ms. St. Martin has served as Worker’s case manager since 1999, and she has acquired substantial knowledge about Worker’s case, her issues, and her medical history. Continuing her services seems to be the most efficient means for coordinating Worker’s future
care. In addition, we note that since Ms. St. Martin became involved as Worker’s case manager, the disputes between Worker, Employer, Employer’s insurance adjusters, and Worker’s medical providers seem to have significantly resolved. This may very well be the reason why WCJ Griego wished that her services continue. These are all excellent reasons for seeking an amend-ment to the appropriate statutes. However, that is not our prerogative. Nor can a WCJ exceed his statutory authority. See Jones, 2014-NMCA-082, ¶ 9 (stating that work-ers’ compensation courts are tribunals of limited and special jurisdiction and have
only such authority as has been conferred on them by statute).{21} For the foregoing reasons, we reverse the WCJ’s order appointing Ms. St. Martin to continue as Worker’s case manager.CONCLUSION{22} The order of the WCJ is reversed.{23} IT IS SO ORDERED.
MICHAEL E. VIGIL, Chief Judge
WE CONCUR:MICHAEL D. BUSTAMANTE, JudgeJ. MILES HANISEE, Judge
26 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
http://www.nmcompcomm.us/Advance Opinions
From the New Mexico Court of Appeals
Opinion Number: 2015-NMCA-084
STATE OF NEW MEXICO,Plaintiff-Appellee,
v.MARK SANCHEZ,
Defendant-AppellantDocket No. 33,587 (filed May 28, 2015)
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTYWILLIAM C. BIRDSALL, District Judge
HECTOR H. BALDERASAttorney General
Santa Fe, NMMARGARET MCLEAN
Assistant Attorney GeneralOLGA SERAFIMOVA
Assistant Attorney GeneralSanta Fe, New Mexico
for Appellee
JORGE A. ALVARADOChief Public DefenderSTEVEN J. FORSBERG
Assistant Appellate DefenderSanta Fe, New Mexico
SUE ANNE HERRMANNAdjunct Professor of Law
Santa Fe, New MexicoJOHN CAMPBELL
Practicing Law StudentSANTIAGO SOLIS
Practicing Law Studentfor Appellant
Opinion
J. Miles Hanisee, Judge{1} Defendant appeals from the district court’s judgment and sentence convicting him for trafficking methamphetamine by possession with the intent to distribute, which was entered pursuant to a condi-tional plea agreement. In the plea agree-ment, Defendant reserved the right to appeal the denial of his motion to suppress the evidence obtained from Defendant’s vehicle beginning with the officer’s war-rantless seizure of a bag of pills that De-fendant attempted to hide from the officer. We agree with Defendant that the officer lacked probable cause to seize the bag of pills. We reverse the district court’s denial of the motion to suppress and remand for further proceedings.I. BACKGROUND{2} The following facts were established by Officer McCarty, the only witness who tes-tified at the suppression hearing. While on routine patrol during his graveyard shift, Officer McCarty noticed a black Infiniti with Colorado license plates stopped at
an intersection. The officer “ran the num-ber of the license plate, and it came back expired.” On this basis, Officer McCarty initiated and completed a traffic stop. When Officer McCarty approached the driver-side door, he asked for Defendant’s driver’s license, registration, and proof of insurance. Defendant leaned over toward the passenger’s seat, where a passenger was seated, and appeared to be searching for his paperwork in the console or reaching for the glove box. During this time, the of-ficer shone his flashlight around the inside of the vehicle to make sure there were “no weapons or anything.” The officer observed a clear, plastic bag on the floorboard of the vehicle by Defendant’s right foot with what appeared to be “a capsule or a pill of some kind in it.” Later in his testimony, Officer McCarty stated that he observed two pills that were different kinds, but were similar. Defendant’s foot obscured the rest of the bag from the officer’s view.{3} The officer asked Defendant what the pills were in the bag at his feet. Defendant placed his foot on top of the bag, tried to slide it underneath the driver’s seat, and said, “What bag?” Officer McCarty
immediately removed Defendant from the vehicle, explaining that he was afraid Defendant would “damage [the pills] or get [them] where [the officer could not] get a hold of them.” Officer McCarty then reached into the vehicle and removed the bag, explaining that he did not want the passenger to take it.{4} The officer admitted that he could not identify the two pills he saw in the bag before removing the bag from the vehicle. The officer testified that he had specific training relevant to identification of pills while he was a full-time paramedic for thirteen years prior to his employment as a law enforcement officer, and that he had maintained his license because he contin-ued to work part-time as a paramedic for the San Juan County SWAT team. Based on this training, the officer determined that the two pills he saw in the bag prior to seizing it were prescription medica-tions. He could not determine the type of prescription medications, however, and had not asked whether Defendant was lawfully in possession of the prescription medications before removing them from the vehicle. These are the facts that form the basis for our analysis.{5} We note that after the officer took the bag, he could see there were several different kinds of pills in it. The officer began questioning Defendant about the pills. Defendant stated that the pills were prescribed to him by his doctor for anxiety and a back injury. Defendant stated that the prescription pill bottles were at his house. Officer McCarty’s testimony does not clearly explain how he proceeded after questioning Defendant in the patrol car. It appears that he arrested Defendant, performed an inventory search, sealed Defendant’s vehicle, and obtained a search warrant. Evidence discovered in the course of the subsequent searches of the vehicle formed the basis for Defendant’s convic-tion for trafficking methamphetamine.{6} Argument at the suppression hearing and in motions focused entirely on the threshold seizure of the bag of pills and whether the seizure was supported by probable cause and exigency. The parties agreed that the facts were appropriately analyzed under the plain view doctrine and the need for exigency under New Mexico case law. The defense focused on the lack of probable cause under the plain view doctrine, arguing that the incriminating nature of the pills was not immediately apparent to Officer McCarty. The State, apparently drawing inferences
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http://www.nmcompcomm.us/Advance Opinionsfrom Officer McCarty’s testimony, argued that the officer suspected the pills were contraband and, coupled with Defendant’s attempt to hide the pills, Officer McCarty had the requisite probable cause. The State’s arguments strongly emphasized the presence of exigency. The district court’s written ruling denying the suppression of evidence agreed with the State that there were exigent circumstances and ruled that the officer’s experience and observations, especially considering Defendant’s furtive attempt to hide the pills, gave rise to prob-able cause.II. DISCUSSIONThe Parties’ Arguments{7} On appeal, Defendant argues that the officer’s investigation into the pills was not founded on reasonable suspicion of criminal activity and the officer’s war-rantless seizure of the pills was not based on probable cause and exigency. The State argues that Defendant did not preserve a challenge to the officer’s reasonable sus-picion to inquire about the pills. The State contends that the district court properly concluded that the seizure of the pills was supported by probable cause and exigent circumstances and argues that Defendant’s focus on the plain view doctrine on ap-peal renders the district court’s ruling on probable cause uncontested on appeal. The State also takes issue with Defendant’s reference, without citation to the record, to statistical information regarding the percentage of Americans taking prescrip-tion drugs.{8} Initially, we clarify which matters are properly before this Court. Defendant contends that although the officer’s lack of reasonable suspicion was not argued below, the inquiry is relevant and neces-sary to determining the reasonableness of Officer McCarty’s actions because, without a reasonable suspicion that the pills were evidence of a crime, there can be no prob-able cause. “It is an enduring principle of constitutional jurisprudence that courts will avoid deciding constitutional ques-tions unless required to do so.” Schieter v. Carlos, 1989-NMSC-037, ¶ 13, 108 N.M. 507, 775 P.2d 709. The arguments before the district court were narrowly and re-peatedly circumscribed to the warrantless seizure of the pills. Both the testimony elic-ited from the officer and the district court’s ruling reflect this narrow issue. Consistent with our policy of judicial restraint and our rule requiring preservation, we decide this case on the preserved and narrowest possible grounds. See Rule 12-216(A)
NMRA (“To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked[.]”); Allen v. Lemaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806 (citing Baca v. N.M. Dep’t of Pub. Safety, 2002-NMSC-017, ¶ 12, 132 N.M. 282, 47 P.3d 44 for the proposition that “courts exercise judicial restraint by deciding cases on the narrowest possible grounds and avoid reaching unnecessary constitutional issues”). Thus, we do not decide whether the officer had reasonable suspicion to inquire about the pills before seizing them.{9} We are not persuaded, however, by the State’s attempt to characterize the district court’s ruling as a rejection of the applicability of the plain view doctrine. The district court expressly found that the officer observed the bag in plain view. Nor are we persuaded by the State’s attempt to distinguish the plain view analysis from the probable cause inquiry in arguing that Defendant abandoned a probable cause challenge. Below, we explain the relation-ship between the plain view doctrine and probable cause.{10} Lastly, we note that we do not con-sider matters that are not of record, includ-ing the statistical information provided by Defendant on appeal. State v. Maez, 2009-NMCA-108, ¶ 8, 147 N.M. 91, 217 P.3d 104 (“This Court will not consider and counsel should not refer to matters not of record in their briefs”). We acknowledge, however, that many people are prescribed medication. See State v. Erikson K., 2002-NMCA-058, ¶ 24, 132 N.M. 258, 46 P.3d 1258 (“A court may take judicial notice of adjudicative facts that are not subject to reasonable dispute. Such facts must be matters of common and general knowl-edge which are well established and au-thoritatively settled.”) (alteration, internal quotation marks, and citation omitted)).Standard of Review{11} “The district court’s denial of De-fendant’s motion to suppress evidence presents a mixed question of fact and law.” State v. Alamanzar, 2014-NMSC-001, ¶ 9, 316 P.3d 183. “[W]e review any factual questions under a substantial evidence standard and . . . review the application of the law to those facts, making a de novo determination of the constitutional reasonableness of a search or seizure.” State v. Sewell, 2009-NMSC-033, ¶ 12, 146 N.M. 428, 211 P.3d 885; see also State v. William-son, 2009-NMSC-039, ¶ 28, 146 N.M. 488, 212 P.3d 376 (clarifying that in the context of warrantless searches and seizures, we
review the lower court’s determination de novo).Plain View and Probable Cause{12} “Warrantless seizures are presumed to be unreasonable and the State bears the burden of proving reasonableness.” State v. Weidner, 2007-NMCA-063, ¶ 6, 114 N.M. 582, 158 P.3d 1025. “In order to prove that a warrantless seizure is reason-able, the State must prove that it fits into an exception to the warrant requirement.” Id. “Among the recognized exceptions to the warrant requirement are exigent cir-cumstances, consent, searches incident to arrest, plain view, inventory searches, open field, and hot pursuit.” State v. Leticia T., 2014-NMSC-020, ¶ 11, 329 P.3d 636. The relevant justifications for the warrantless seizure of the bag from Defendant’s vehicle are the plain view observation and the existence of probable cause with exigent circumstances. See id. ¶ 12 (“A warrant-less entry into a vehicle under the exigent circumstances exception requires probable cause plus exigent circumstances.”).{13} “Under the plain view exception to the warrant requirement, items may be seized without a warrant if the police officer was lawfully positioned when the evidence was observed, and the incrimi-nating nature of the evidence was imme-diately apparent, such that the officer had probable cause to believe that the article seized was evidence of a crime.” State v. Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d 1286. The requirement that the incriminating nature of the evidence be “immediately apparent” does not require a more heightened level of certainty that an item is contraband or evidence of a crime than is required by probable cause. See State v. Williams, 1994-NMSC-050, ¶ 15, 117 N.M. 551, 874 P.2d 12, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. The “immediately apparent” language “es-sentially requires that there be probable cause,” without the need for further search or an additional invasion of privacy and possessory interests. See Williams, 1994-NMSC-050, ¶ 15.{14} “Probable cause exists when the facts and circumstances warrant a be-lief that the accused had committed an offense, or is committing an offense.” Ochoa, 2004-NMSC-023, ¶ 9. “There are no bright line, hard-and-fast rules for determining probable cause, but the degree of proof necessary to establish probable cause is more than a suspicion or possibility but less than a certainty
28 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
http://www.nmcompcomm.us/Advance Opinionsof proof.” State v. Evans, 2009-NMSC-027, ¶ 11, 146 N.M. 319, 210 P.3d 216 (internal quotation marks and citation omitted). Thus, the existence of probable cause is reviewed within the “realm of probabilities rather than in the realm of certainty.” State v. Knight, 2000-NMCA-016, ¶ 20, 128 N.M. 591, 995 P.2d 1033. “[P]robable cause must be evaluated in relation to the circumstances as they would have appeared to a prudent, cau-tious and trained police officer.” Ochoa, 2004-NMSC-023, ¶ 9 (internal quotation marks and citation omitted). An officer must acquire information establishing probable cause to believe that an item is possessed unlawfully before seizing it. See State v. Moran, 2008-NMCA-160, ¶¶ 12-14, 145 N.M. 297, 197 P.3d 1079 (holding that although law enforcement officers may have eventually acquired sufficient information for probable cause, they did not have adequate grounds to believe that the evidence at issue was possessed unlawfully to justify the initial entry).Pills Not Inherently Unlawful{15} In the instant case, we conclude that the existence of two pills contained within a small bag on the floorboard of the car was insufficient to convey evidence of criminality that would be apparent to the officer based upon mere observation. As we have acknowledged, the possession of prescription pills is commonly lawful, and our laws do not prohibit the posses-sion of prescription pills in an aftermarket container. Cf. Gay v. State, 138 So.3d 1106, 1110 (Fla. Dist. Ct. App. 2014) (stating that “the mere observation of pills in an aftermarket container is equally consistent with noncriminal activity as with crimi-nal activity”). Rather, our laws declare it unlawful to possess dangerous drugs or controlled substances unless they are obtained pursuant to a valid prescription. NMSA 1978, §§ 26-1-16(E) (2013); 30-31-23(A) (2011). Officer McCarty believed, based on his training and experience as a paramedic, that the two pills were pre-scription medication, but he could not identify the pills and had no information indicating whether they were prescribed to Defendant. Additionally, the two pills the officer observed did not constitute an amount that might suggest that they were possessed for an illegal purpose. Cf. People v. Humphrey, 836 N.E.2d 210, 213-15 (Ill. App. Ct. 2005) (holding that even where the officer observed a small, clear plastic container holding several hundred white pills partially hidden under the passenger
seat, the incriminating nature of the pills was not immediately apparent to the of-ficer in a manner that satisfied the plain view doctrine to warrant the seizure of the container); see People v. Carbone, 184 A.D.2d 648, 650 (N.Y. App. Div. 1992) (stating that “the three pink and white pills could not have been seized under the plain view doctrine since it was not ‘immediately apparent’ to [law enforcement] that the pills were either evidence of criminality or contraband”).{16} Where, as here, an officer observes an item in plain view that is often lawfully possessed and used, the context in which the item is viewed may make it reasonably apparent to the officer that the item is being possessed or used unlawfully with a sufficient level of probability to satisfy probable cause. See Ochoa, 2004-NMSC-023, ¶ 13. The circumstances of the police encounter, relevant officer training and experience, and specific facts known about the suspect and the particular item observed are factors that may properly in-form an officer’s determination that there is probable cause to believe that the item in plain view is evidence of a crime. See id.{17} Officer McCarty in the current case articulated no suspicious circumstances surrounding the encounter. The officer stopped Defendant for driving with ex-pired registration. There is no indication from the officer’s testimony that Defen-dant’s driving or demeanor suggested that he might have been under the influence of a drug, nor did the officer testify that Defendant or his passenger displayed any suspiciously nervous or aggressive behav-ior before the officer observed the pills. The officer’s testimony did not indicate that he stopped Defendant in an area known for drug trafficking or other criminal activity, and the officer gave no indication that he had any prior knowledge of Defendant. In fact, the officer did not expressly state in his testimony that his observation of the two pills in the bag was suspicious, nor did he state why it might give rise to any suspicions. The officer’s testimony clari-fies only that his training and experience led him to believe that the two pills he observed were similar and were prescrip-tion medication. We note that these items have common, noncriminal uses. State v. Haidle, 2012-NMSC-033, ¶ 30, 285 P.3d 668 (“Mere suspicion about ordinary, non-criminal activities, regardless of an officer’s qualifications and experience, does not satisfy probable cause.”)(internal quotation marks and citation omitted)). The officer
indicated that he grabbed the bag of pills because Defendant was trying to hide it.Furtive Movements and the Need for Other Specific Circumstances for Probable Cause{18} As the officer’s testimony demon-strates, the only suspicious circumstance that combined with the officer’s view of the two pills on the floorboard was De-fendant’s reaction to the officer’s question about what pills were in the bag—Defen-dant’s attempt to slide the bag under the driver’s seat with his foot, and his verbal response, “What bag?” Professor LaFave has offered his view on the role of furtive gestures in the probable cause determina-tion:
Observation of what reasonably appear to be furtive gestures is a factor that may properly be taken into account in determining whether probable cause exists.
. . . .Thus, if the police see a person in possession of a highly suspicious object or some object that is not identifiable but which because of other circumstances is reasonably suspected to be contraband, and then observe that person make an apparent attempt to conceal the object from police view, probable cause is then present.
2 W. LaFave, Search and Seizure: A Trea-tise of the Fourth Amendment § 3.6(d), at 438 (5th ed. 2014); see also Sibron v. New York, 392 U.S. 40, 66-67 (1968) (stating that “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest”). LaFave’s compilation of numerous cases that form the basis of his assessment of furtive gestures in the con-text of probable cause demonstrates that where the criminal nature of an object is not identifiable, other circumstances that indicate criminality have been required, in addition to a suspect’s attempt to con-ceal the object from police, in order for probable cause to exist. See 2 W. LaFave, supra, § 3.6(d) at 438-39 nn.182-83. Our review of relevant caselaw gener-ally supports this observation. See, e.g., United States v. McGehee, 672 F.3d 860, 863-64, 869-70 (10th Cir. 2012) (holding that where an officer observed a vehicle improperly parked in front of a house
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http://www.nmcompcomm.us/Advance Opinionsknown for drug trafficking, smelled PCP in the vehicle, noticed a vanilla-extract bottle—commonly used to store PCP—in the driver-side door, and where the driver attempted to conceal a handgun under-neath the seat with his foot, police had probable cause to believe the driver was involved in a narcotics-related offense); Ex parte Kelley, 870 So.2d 711, 715-18, 723-25 (Ala. 2003) (holding that the po-lice had probable cause to seize a match-box from the defendant when she made several furtive movements in attempts to conceal the matchbox from view when plainclothes, narcotics-investigation of-ficers approached her, having reasonably suspected that the object was part of a drug deal they witnessed while investigat-ing “numerous complaints” about drug activity, and when the officers had previ-ous experience with drug transactions in that location).{19} We recognize, however, that the contexts in which defendants make furtive movements vary widely, and courts view those contexts and the furtive movements themselves differently, as we illustrate below. At least two courts have concluded that there was probable cause with little more, if any, suspicious circumstances than those before us now. One such case is Mavin v. Commonwealth, 521 S.E.2d 784 (Va. Ct. App. 1999). There, a vehicle’s passenger was slumped down in the back-seat, attempting to hide his person and a prescription bottle without a label from law enforcement. Id. at 786. The passenger denied knowledge of the bottle, which the officer knew was often used to carry crack cocaine. Id. Additionally, the driver of the vehicle was very nervous and immediately exited the vehicle upon being stopped. Id. The Virginia court held, without much analysis or any citation to analogous au-thority, that the officer had probable cause to believe a crime was being committed sufficient to warrant seizure of the bottle. Id.; but see Royal v. Commonwealth, 558 S.E.2d 549, 550, 553-55 (Va. Ct. App. 2002) (requiring further suspicious circum-stances beyond the defendant’s “unusual behavior” – chewing and attempting to swallow a dollar bill and refusing to spit it out – to support probable cause where the defendant was in a vehicle reported to be suspicious and where the officer knew from experience that drugs are often con-cealed in dollar bills and that individuals often attempt to swallow drugs).{20} The second case determining the existence of probable cause with relatively
minor suspicious circumstances, Ball v. United States, 803 A.2d 971, 973 (D.C. 2002), involved an officer’s plain feel of a large medicine bottle during a patdown frisk for weapons resulting from a traffic stop. The officer testified that the traffic stop was becoming increasingly intense and the defendant, who was a passenger in the vehicle, was sweating, getting excited and repeatedly attempting to conceal and access something around his abdomen area despite the officer’s orders to stop. Id. Additionally noting the officer’s experience and familiarity with drugs being stored in similar packaging, the court deter-mined that based on the circumstances, the officer had probable cause from his plain feel patdown. Id. at 981-982. The court detailed numerous cases that take different approaches to the immediately apparent/probable cause determination under analogous circumstances, adding to our observation that these cases turn on the smallest of facts, including a suspect’s behavior, the officer’s testimony regarding particularized knowledge of the items at issue, criminality, and the individuals in-volved in the encounter. See id. at 976-79, 976-77 nn.4-5.{21} Ultimately, we are persuaded by statements made by the Massachusetts Supreme Court in Commonwealth v. Alvarado, explaining that circumstances similar to those before us fall short of probable cause and may, at most, give rise to reasonable suspicion:
The view of an object which may be used for lawful as well as un-lawful purposes, even a container of the type commonly used to store controlled substances, is not sufficient to provide the view-ing officer with probable cause to seize that object or arrest the individual possessing that object. Nor does the observation of a fur-tive gesture, such as attempting to conceal an object, give rise, in and of itself, to probable cause. We are of the opinion that the combina-tion of these two factors is more akin to a situation giving rise to a reasonable suspicion based on articulable facts justifying a threshold inquiry than to prob-able cause.
651 N.E.2d 824, 830 (Mass. 1995) (inter-nal citations omitted). There, an officer stopped a vehicle based upon “the pecu-liar maneuverings of the automobile and the extremely slow speed at which it was
traveling.” Id. at 828. Upon stopping the vehicle, the officer shone his flashlight inside the car and observed the defendant, who was the passenger, grasping what the officer believed to be a glassine bag in his fist and placing it down the front of his pants. Id. The officer testified that in his training and experience, he was aware that glassine bags are commonly used to store controlled substances. Id. The defendant denied having put anything in his pants and gave the officer false information about where he was from. Id. However, the defendant later admitted that he was from a city in Colombia, which the officer knew to be a major source for cocaine in the United States. Id. The Massachusetts Supreme Court held that the officer did not have probable cause to arrest the defendant at that time, comparing the facts to those of other cases that included a number or combination of additional circumstances and emphasizing the need for a case-by-case determination. Id. at 829-831.{22} Consistent with the sentiment ex-pressed by the Massachusetts Supreme Court and the observation from Profes-sor LaFave, we are of the opinion that Defendant’s attempt to conceal the bag on the floorboard containing pills that may or may not have been lawfully possessed, without any testimony from the officer indicating suspicious circumstances or specific knowledge about Defendant or the item seized, is not an act that supplied Officer McCarty with a suspicion that rose to the level of probable cause.{23} We note that our decision is also informed by cases that examine the nature or purpose of the suspect’s furtive move-ment and consider the item the suspect attempted to conceal in making a probable cause determination. In Ex parte Tucker, 667 So.2d 1339, 1342 (Ala. 1995), the cir-cumstances at issue revolved around an officer asking the defendant to remove a large bulging item from his pocket, which the defendant revealed to be a closed, opaque film canister. After the officer asked the defendant about the contents of the canister, the defendant placed it behind his back, at which point the officer requested to see the canister. Id. at 1342-43. The defendant obliged, and the officer discovered drugs within the canister. Id. at 1343. The Alabama court analyzed the mens rea behind the defendant’s action, drawing a distinction between a suspect who attempted to flee or conceal an object from police view and a suspect whose ac-tion manifested an expectation in the right
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http://www.nmcompcomm.us/Advance Opinionsto privacy in the object. Id. at 1347-48. With even considerably more suspicious circumstances surrounding the police en-counter than were present in our case, the Alabama court concluded that because law enforcement was aware of the presence of the object and the defendant did not try to truly conceal or remove the evidence, his action was not so definitive as to suggest that the canister contained contraband, and it was more in the nature of an asser-tion of privacy in the personal effect. Id.; see also Grantham v. City of Tuscaloosa, 111 So.3d 174, 180-81 (Ala. Crim. App. 2012) (holding that based on the lack of the ar-ticulable suspicion in the circumstances of the traffic stop, the defendant/passenger’s reach over the console and refusal to exit the vehicle was merely an assertion of the right to privacy by withholding consent rather than furtive movements that might rise to the level of probable cause); State v. Lavender, 762 P.2d 1027, 1028-29 (Or. Ct. App. 1988) (holding that where the defendant—who had a known history of drug offenses, appeared to be under the influence of drugs and was screaming in a public park, claiming to be upset by the death of her father—attempted to conceal the contents of her purse from police, there was no probable cause to believe the purse contained contraband and the defendant acted with intent to protect her right to privacy in the purse).{24} Similarly, in the current case, where Officer McCarty had already seen and
identified that Defendant had a bag with pills, Defendant’s act of attempting to push it under the seat and asking, “What bag?” does not necessarily demonstrate an at-tempt to remove, destroy or truly conceal illegal contents from the officer. Defendant was cooperative in exiting the vehicle and did not attempt to flee or further hide the bag. Also, in this context, we believe it is appropriate to revisit and consider the items observed and concealed—the prescription pills. Not only are pills not inherently criminal, but their lawful use is to treat medical conditions, which our society acknowledges in various ways to be a private matter. Thus, without other fac-tors suggestive of illegal drug possession, Defendant’s actions, at best, can be seen as equally consistent with either an assertion of the right to privacy or an intent to con-ceal contraband. Without more, we are not persuaded that Defendant’s actions or the surrounding circumstances demonstrated with sufficient probability that Defendant possessed the pills unlawfully.{25} Based on the foregoing, we conclude that the officer’s seizure of the bag was a hasty reaction to Defendant’s furtive movement that was not based on sufficient information to satisfy probable cause to believe Defendant was in possession of contraband.Exigent Circumstances{26} Finally, we briefly dismiss the State’s argument, citing only Leticia T., 2014-NMSC-020, ¶ 19, and the statutory
provisions making it unlawful to possess “dangerous drugs” or a “controlled sub-stance,” without a prescription, Section 26-1-16(E) and Section 30-31-23(A), respectively, that the officer had prob-able cause to believe that the bag of pills was evidence of a crime. In Leticia T., the Court focused on the presence of exigent circumstances in support of a full search of a vehicle when law enforcement had “reports of an armed subject pointing a ‘long gun’ at several people from the window” of the vehicle, but where law enforcement was initially unable to locate the weapon. 2014-NMSC-020, ¶¶ 3-4, 18-23. “A warrantless entry into a vehicle under the exigent circumstances excep-tion requires probable cause plus exigent circumstances.” Id. ¶ 12 (Emphasis added.) Because we have already determined that the officer lacked probable cause for the seizure of the bag, we need not analyze the presence of exigency or its role in the analysis of the plain view exception.III. CONCLUSION{27} The district court’s denial of Defen-dant’s motion to suppress is reversed. We remand for further proceedings consistent with this disposition.{28} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:CYNTHIA A. FRY, JudgeRODERICK T. KENNEDY, Judge
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ClassifiedPositions
Family Law AttorneyDowntown Albuquerque firm seeking experi-enced family law attorney. Minimum 3 years experience. Must be motivated self-starter. Performance based pay. Please send resume to [email protected].
Associate AttorneySmall well established plaintiff’s personal injury law firm in Los Lunas seeks associ-ate attorney with 1-5 years of experience, preferably in personal injury and/or medical malpractice. Will consider new attorney if candidate has previous paralegal experience. Salary commensurate with experience. All responses kept strictly confidential. Please send your cover letter, resume and references to Office Manager, PO Box 2416, Los Lunas, NM 87031.
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].
Law ClerkThe New Mexico Court of Appeals, Albu-querque, is recruiting for a law clerk. The job description can be viewed at: http://www.nmcourts.gov/newface/hr/job_desc/Law%20Clerk%20(At-Will).pdf. The position is a full-time, at-will position. The annual salary is: $56,328.48. Under general supervision, the law clerk will work directly with Judge Sutin on assigned cases, perform legal research and analysis, and write and edit opinions. Attention to detail and a strong work ethic are critical and required. Required Education: Must be a graduate of a law school meeting the standards of accreditation of the American Bar Association. Experience: At least one (1) year of experience performing legal re-search, analysis, writing, and editing. General knowledge of substantive and procedural law; manual and online legal research, analysis and writing; proper English usage, grammar and punctuation; computer applications; legal terminology; proofreading and editing; judi-cial ethics; and general office practices, filing systems, and office equipment; New Mexico case law and statutes and court jurisdiction. Other: Completion of a post offer background check may be required. Resume, references, law school and undergraduate transcripts should be emailed to [email protected].
Wanted for Immediate Hire a Bilingual (Spanish/English) Associate!Our busy Albuquerque workers' compensa-tion and personal injury firm seeks a junior associate to assist senior attorneys and paralegals with: Assisting with discovery re-quests, depositions, hearings and mediations; Researching and drafting motions, pleadings, memoranda of law and other legal documents - Covering hearings, depositions and me-diations; Communicating and meeting with clients; Related duties. Excellent opportunity to grow for the right person! Requirements:- You must be a member of the New Mexico Bar; You must be Spanish/English bilingual; You must be enthusiastic; You must be a reli-able team player that is willing to learn; You must be client-driven and highly motivated. Benefits offered include medical, dental, vi-sion and life insurance, as well as 401k, paid firm holidays and paid time off. Compensa-tion commensurate with experience. Please send resume to [email protected]
AttorneysAttorneys needed for two positions in a busy, growing Law Firm. The first position requires litigation experience for trials, court hear-ings, mediations, and discovery. The second position is intended for those with none to five years of experience as a practicing at-torney. Must be able to multi-task in a high volume, fast paced, reputable, and growing law firm representing numerous nationwide banking clients. Nice office in the Journal Center area. Good benefits (holiday, vacation, sick, health, dental, retirement and more). Submit in confidence cover letter, resume, salary history and current salary require-ments to [email protected]. This is a great opportunity for someone to be a part of a challenging and specialized area of law that encompasses local, state, and federal laws. We will train the right people.
Eleventh Judicial District Attorney’s Office, Div II The McKinley County District Attorney’s Of-fice is currently seeking immediate resumes for one (1) Assistant Trial Attorney. Position is ideal for persons who recently took the bar exam. Persons who are in good standing with another state bar or those with New Mexico criminal law experience in excess of 5 years are welcome to apply. Agency guarantees regular courtroom practice and a supportive and collegial work environment. Salaries are negotiable based on experience. Submit letter of interest and resume to Kerry Comiskey, Chief Deputy District Attorney, 201 West Hill, Suite 100, Gallup, NM 87301, or e-mail letter and resume to [email protected] by 5:00 p.m. December 30, 2015.
Associate AttorneyAllen, Shepherd, Lewis & Syra, P.A. is seeking an associate attorney with 0-5 years experi-ence. Experience in worker's compensation, construction defects, professional malprac-tice or personal injury preferred but not required. Must be licensed in New Mexico or obtain New Mexico license. Candidates considered for a position must have excellent oral and written communication skills and demonstrate a strong desire for trial work. Available position is considered regular and full time. We offer an excellent benefit pack-age which includes medical, dental, vision, 401(k), life insurance, and long term dis-ability benefits. Please send resume, unofficial transcript and writing sample to Human Resources, PO Box 94750, Albuquerque, NM 87199-4750 or [email protected]. All replies will be kept confidential. EOE.
Experienced Legal AssistantGUEBERT BRUCKNER P.C. busy litigation firm looking for experienced Legal Assistant to support 11 attorneys. Candidate will co-ordinate with various members of the staff to accomplish the needs of attorneys. Duties include but are not limited to: finalizing documents for submission to clients, State and Federal courts. Excellent communica-tion skills required in order to meet deadlines and to comply with various client guidelines. Strong writing and proof reading skills, as well as knowledge of court rules required. Hours 8:30 to 5:30. Firm uses Microsoft Word, Excel, and Outlook. Please submit resume and salary requirement to Kathleen A. Guebert, POB 93880, Albuquerque, NM 87109.
Attention ParalegalsIf you are a top-notch litigation paralegal with solid experience, we have a great job with great benefits in a pleasant environment. Please mail resume, cover letter and refer-ences to Comeau, Maldegen, Templeman & Indall, LLP, PO Box 669, Santa Fe, NM 87504 or email to [email protected]
Paralegal and Legal Assistant AdvancedNew Mexico State Land Office is accepting applications for the position of Paralegal. Strong work ethic and organizational skills are a must. Salary competitive and com-mensurate with experience and qualifica-tions. Please apply at www.spo.state.nm.us Ref#5897
38 Bar Bulletin - December 2, 2015 - Volume 54, No. 48
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.
Near North Valley Office/ Living QuartersFor sale, 2100 sf property. Designed for use as both office and residence. Quiet neigh-borhood with ample parking. Minutes from courts, no interstate commute. Bicycle/jogging path access just out your back gate. Call 238-7367 for appointment. Not a rental.
Services
Orthopedic SurgeonOrthopedic Surgeon available for case review, opinions, exams. Rates quoted per case. Send inquiries to: [email protected]
Office Space620 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.
Office SpaceOne office space with secretarial space for rent. Beautiful Uptown one-story building, ample parking, near Louisiana and Menaul. Rent includes shared use of receptionist and four conference rooms. Rent also includes utilities except phone and internet. $675 for each office space. Basement space is also available for rent for files. Space will be avail-able January 1, 2016. Contact Cathy Davis at 881-3191 or [email protected] for more information.
Beat the
Holiday Rush!Holiday
Advertising Schedule
Due to holiday closures, the following advertising submissions for the Bar Bulletin will apply:
Dec. 30, 2015: Advertising submissions due Dec. 7, 2015
Jan. 6, 2016 issue: Advertising submissions due Dec. 9, 2015
For more advertising information, contact:Marcia C. Ulibarri at 505-797-6058 or email [email protected]
