Inside This Issue www.nmbar.org August 17, 2009 • Volume 48, No. 33 Table of Contents ....................................................... 5 U.S. Bankruptcy Court: Investiture Ceremony .......... 6 Lawyers Professional Liability and Insurance Committee Disclosure of Liability Insurance: Rule 16-104 ...... 8 Proclamation: August 26, Paralegal Day ..................... 9 Rules/Orders No. 31,583: In the Matter of the Suspension of Active Members of the State Bar of New Mexico for Noncompliance With Rule 18-301 NMRA, Governing Minimum Continuing Legal Education for Compliance Year 2008 ......... 18 No. 09-8300-028: In the Matter of the Amendments of Uniform Jury Instructions 14-5120, 14-5181, 14-5183, and 14-6018 and Adoption of New Uniform Jury Instructions 14-5185 and 14-5186 NMRA for Criminal Cases .................................................................... 18 No. 09-8300-029: In the Matter of the Amendments of Rule 16-104 NMRA of the Rules of Professional Conduct ................... 22 Proposed Revisions to the Rules of Civil Procedure for the District Courts ............ 24 From the New Mexico Court of Appeals 2009-NMCA-064, No. 27,338: State v. Smile ........................................................ 25 2009-NMCA-065, No. 24,026: Albuquerque Commons Partnership v. City Council of the City of Albuquerque............. 38 Serena by Todd Lenhoff (see page 5)
Transcript
Bar Bulletin - August 17, 2009 - Volume 48, No. 33 1
Inside This Issue
www.nmbar.org
August 17, 2009 • Volume 48, No. 33
Table of Contents ....................................................... 5
U.S. Bankruptcy Court: Investiture Ceremony .......... 6
Lawyers Professional Liability and Insurance Committee Disclosure of Liability Insurance: Rule 16-104 ...... 8
Proclamation: August 26, Paralegal Day ..................... 9
Rules/Orders
No. 31,583: In the Matter of the Suspension of Active Members of the State Bar of New Mexico for Noncompliance With Rule 18-301 NMRA, Governing Minimum Continuing Legal Education for Compliance Year 2008 ......... 18
No. 09-8300-028: In the Matter of the Amendments of Uniform Jury Instructions 14-5120, 14-5181, 14-5183, and 14-6018 and Adoption of New Uniform Jury Instructions 14-5185 and 14-5186 NMRA for Criminal Cases .................................................................... 18
No. 09-8300-029: In the Matter of the Amendments of Rule 16-104 NMRA of the Rules of Professional Conduct ................... 22
Proposed Revisions to the Rules of Civil Procedure for the District Courts ............ 24
From the New Mexico Court of Appeals
2009-NMCA-064, No. 27,338: State v. Smile ........................................................ 25
2009-NMCA-065, No. 24,026: Albuquerque Commons Partnership v. City Council of the City of Albuquerque ............. 38
Bar Bulletin - August 17, 2009 - Volume 48, No. 33 3
Steve Aaron, Paul F. Abrams, Xavier Acosta, Penni Adrian, Esteban A. Aguilar, Sr., Esteban A. Aguilar, Jr., Joseph A. Alarid, Lawrence W. Allred, Steven
R. Almanzar, Christina Anaya, Erika Anderson, William R. (Bill) Anderson, Leslie McCarthy Apodaca, David A. Archuleta, Jacquelyn Archuleta-Staehlin,
S. Charles Archuleta, Christina Argyres, Catherine D. Arlowe, Deborah A. Armstrong, Sarah Armstrong, Jose L. Arrieta, Tyler John Atkins, Timothy Atler,
Gerald Baca, Michelle Baca, George L. Bach, Jr., C. Shannon Bacon, Arthur Brent Bailey, Mark Baker, Shana Baker, Kimberly Marie Bannerman, Bob
Barberousse, Paul G. Bardacke, Roger Bargas, Lynn Barnhill, Randy Bartell, Theodore W. Barudin, Ken Bateman, Lloyd O. Bates, Jr., Bennett Baur, Marcy
G. Baysinger, Kenneth L. Beal, Alexander Beattie, II, Lori M. Bencoe, Deana Bennett, Linda H. Bennett, David J. Berardinelli, Barbara E. Bergman,
David M. Berlin, Gordon Berman, Hannah Best, Carl Bettinger, Greg Biehler, George Bingham, Tom Bird, Billy Blackburn, Michelle Marie Lalley Blake,
Neil R. Blake, Thomas F. Blueher, Kristina Bogardus, Mary Lynn Bogle, V. Arthur Bova, Jr., Brian P. Brack, Brian K. Branch, Margaret Moses Branch,
Rebecca Branch, Cynthia Ann Braun, Michael Brescia, Michael B. Browde, Natalie Bruce, Jeff Buckels, Jack Burton, Michael E. Cain, Jake Caldwell,
David S. Campbell, Roseanne Camunez, Cristy J. Carbon-Gaul, Raul A. Carrillo, Jr., Mary Carmack, William H. Carpenter, Carroll D. Carter, III, Kathleen
D. Carter, Ellen Casey, Kelly Mack Cassels, Joseph Cervantes, Mark Chaiken, Susan G. Chappell, Gregory William Chase, Gail Chasey, Frank N. Chavez,
Maria Montoya Chavez, Vanessa P. Chavez, Tim Chelpaty, Briggs F. Cheney, Randy K. Clark, Michael Clemens, Carol Clifford, Greig W. Coates, Kari
Converse, Robert Cooper, Monica Corica, Alexandra Corwin Aguilar, John P. Cosentino, Amber Creel, Frances A. Crockett, Robert Crollett, Nancy Cronin,
Peter V. Culbert, Katie Curry, Hugh Dangler, Tessa Davidson, Joel Davis, Michael Davis, John Day, Richard De Stefano, Daniel A. Dolan, Mark Donatelli,
Veronica Dorato, Jocelyn C. Drennan, Katy Duhigg, John A. Duran, Stephen G. Durkovich, Lisa K. Durrett, Roger V. Eaton, Brendan Egan, Kenneth G.
Egan, James C. Ellis, Lizbeth G. Ellis, Daymon B. Ely, Leon Encinias, Tatiana Engelmann, Shane A. English, Craig Erickson, Mario A. Esparza, Gail Jane
Evans, Josh Ewing, Steven C. Ewing, Hank Farrah, Richard N. Feferman, Dave Ferguson, Mark A. Filosa, Sherrill K. Filter, Elizabeth M. Fisher, Ray
Floersheim, Jacqueline Flores, Juan Flores, Josephine Ford, Lisa P. Ford, Tara Ford, Emily Franke, Stephen G. French, Caren I. Friedman, Melanie
Fritzsche, Ben Stearman Furth, Rodney L. Gabaldon, Phillip C. Gaddy, Gregory Gahan, Brooke Gamble, David A. Garcia, Matthew L. Garcia, Monica
Garcia, Douglas E. Gardner, Michael T. Garrett, Sean Garrett, Eileen Gauna, Kurt Gilbert, Duane C. Gilkey, Bill Gilstrap, Peter I. Giovannini, Jane
Katherine Girard, Ladonna Giron, Mark A. Glenn, Catherine Goldberg, Joseph Goldberg, Gerald Gonzalez, Bradford K. Goodwin, Marc Gordon, David
Gorman, Gail Gottlieb, Ronald Gould, Christopher Graeser, David Graham, Esmerelda Graham, Marc Grano, Al Green, Barry Green, Kim Griffith,
Michelle Lujan Grisham, Dana Kanter Grubesic, Andrea I. Gunderson, Elizabeth J. Gutierrez, J. Michele Guttmann, Brad D. Hall, Bruce D. Hall, Glenn D.
Hall, Jerry J. Hamilton, Stephen Hamilton, Mary Han, Eric Hannum, Robert E. Hanson, Nikko Harada, Jack Hardwick, F. Michael Hart, Patrick Hart, Dusti
Harvey, Scott Hatcher, Helen Hecht, Steven C. Henry, Pamelya P. Herndon, J.D. Herrera, Bryan J. Hess, Corbin P. Hildebrandt, Jay D. Hill, Tom Hnasko,
Robyn Hoffman, Christopher A. Holland, J. Edward Hollington, Joseph M. Holmes, Thomas J. Horan, Tracy Howell, Matthew R. Hoyt, James M. Hudson,
Lee Hunt, Peter Ives, Richard M Jacquez, David J. Jaramillo, Heather Jaramillo, Tammy M. Jasionowski, Tracy Jenks, Anna L. Juarez, Terrence Kamm,
Harutiun Kassakhian, Paul Kastler, Lara Katz, Jenny Kaufman, Justin Ross Kaufman, William R. Keeler, Henry A. Kelly, Jaime Kennedy, John Kennedy,
Paul Kennedy, Susan Kery, Kerry C. Kiernan, Cynthia A. Kiersnowski, Peter H. Klages, Randy J. Knudson, Mark Komer, Lawrence B. Kronen, Cherie L.
LaCour, Jeff Lahann, William F. Lang, Twila Braun Larkin, Derek V. Larson, Maria M. LaVerde, Christopher David Lee, Jess R. Lilley, Marc A. Lilley,
Michael W. Lilley, Anthony G. Lopez, Cid Dagward Lopez, Manuel J. Lopez, Brigitte U. Lotze, Kathleen J. Love, Marc M. Lowry, Donna Lynch, Rosario
D. Vega Lynn, Lisa Tourek Mack, Daniel J. Macke, Alan Maestas, Antonio Maestas, Larry Maldegen, Robert Malone, Eileen Mandel, Clinton Marrs,
Ganesha Martin, David B. Martinez, Kristina Martinez, Maria Martinez, Vince Martinez, Heather Massoth, Francis Mathew, John McCarthy, Steven
McConnell, Sue B. McDowell, Elizabeth V. McGrath, Molly McGraw, Carlotta McInteer, Cliff McIntyre, Seth McMillan, David McNeill, Jr., Mario
Michael Medrano, Walter Melendres, Gianna Mendoza, Carolyn N. Merchant, Robert N. Meyer, Kim Middlebrooks, Brandt P. Milstein, Gary Mitchell,
Andrea Alicia Montoya, Victor Patrick Montoya, Jean Constance Moore, Thurman W. Moore, III, Lidia Garza Morales, Ronald C. Morgan, Regina Moss,
W. Mark Mowery, Cerianne Lynne Mullins, Dennis P. Murphy, Anne Murray, Betsy Musselman, Sarita Nair, Steve Natelson, Jody Neal-Post, Olivia
Neidhardt, Mark Kriendler Nelson, Peggy Jean Nelson, Laurel Marie Nesbitt, David Norvell, Erin O’Connell, Jerome A. O’Connell, Dylan O’Reilly,
Suzanne Odom, Christa M. Okon, Cathy Oliver, Richard E. Olson, Thomas Olson, Nancy A. Oretskin, Craig Orraj, Lisa Chavez Ortega, LeeAnn Ortiz,
Michelle Kay Ostrye, Thomas Outler, S. Thomas Overstreet, Ronald Eugene Owens, Agnes Fuentevilla Padilla, Arnold Padilla, Richard M. Padilla, Barry
Paisner, Pedro Palacios, Theresa Parrish, Olga Pedroza, Charles R. Peifer, K. Jan Peterson, Lynn Pickard, Lawrence L. Pickett, Mark L. Pickett, Charles
James Piechota, Albert L. Pitts, Edmund Pitts, David L. Plotsky, Brady C. Pofahl, Earl Potter, Michael Pottow, Victor Poulos, John Pound, Lupe Preciado,
Maria D. Preciado, Ruth O. Pregenzer, Troy Prichard, Jennifer Pruett, Charles K. Purcell, Charles A. Purdy, Mark Pustay, Bryan L. Query, Feliz Angelica
Rael, Marcus J. Rael, Jr., Rory Rank, Roxie Rawls-de Santiago, Barney James Reeves, Edith Marie Reeves, Melissa J. Reeves, Edward R. Ricco, Kimberly
A. Richards, Tiffany L. Roach, Andrea K. Robeda, Jackie Robins, Bill Robins, Karl H. Roepke, David E. Romero, Jr., Dennis Romero, Eliu Romero,
Geoffrey R. Romero, Joseph Romero, Keith Romero, Margaret Romero, Jay D. Rosenblum, Mary Rosner, Gregory Ross, Antonia Roybal-Mack, K. Stephen
Royce, Emeterio L. Rudolfo, Regina Ryanczak, Robert E. Sabin, Angel L. Saenz, Brenda Saiz, Frank Salazar, John Salazar, Pia A. Salazar, Patricia
Salazar-Ives, Nell Graham Sale, Andrew Sanchez, Dennis Sanchez, Octavio Sanchez, Maureen A. Sanders, Janet K. Santillanes, Rod Schlagel, David
Schmidt, Angie K. Schneider-Cook, Peter Schoenburg, Steven S. Scholl, Andrew G. Schultz, David M. Serna, Eric Serna, Daniel W. Shapiro, Patrick Shay,
Tim Sheehan, Frederick H. Sherman, Herbert M. Silverberg, Albert Simms, Beverly J. Singleman, Sarah Singleton, Ellen Thorne Skrak, William D. Slease,
Joshua L. Smith, Quentin F. Smith, Bill Snead, James Snead, Jeanne Yvonne Sohn, Kurt Sommer, Daniel Sosa, Jr., Daniel Sosa, III, Frank L. Spring, Travis
R. Steele, Luis G. Stelzner, Patricia M. Stelzner, Barbara G. Stephenson, Slate Stern, Stephen L. Stevers, Margaret Strickland, David J. Stout, Michael L.
Stout, Raynard Struck, Patrick W. Sullivan, Bill Teel, Paul G. Tellez, Benjamin Thomas, Bruce Evan Thompson, Manuel Tijerina, Victor A. Titus, John R.
Tiwald, Denise M. Torres, Mary Torres, Maria Touchet, Sara Traub, Rob Treinen, Larry Trujillo, Ray Twohig, Kim Udall, Gabrielle Valdez, Richard J.
Valle, Larry Van Eaton, Laure Van Heijenoort, Julian Varela, Ray M. Vargas, II, Bette Velarde, Charles Vigil, Donald D. Vigil, Jill Johnson Vigil, Lisa K.
Vigil, Ramon Vigil, Ryan Villa, Dino R. Villani, Richard Virtue, Steven J. Vogel, Steven Vogel, Scott F. Voorhees, Hans Voss, Bill Walker, David Walther,
Stacey A. Ward, Michelle Warren, Stefan Wasserman, Jeffrey Wechsler, Dathan L. Weems, George W. Weeth, Felicia C. Weingartner, Jennifer
Wernersbach, John Wentworth, Jerry Wertheim, Jerry Todd Wertheim, John Wertheim, Christina S. West, Little West, Duff H. Westbrook, Peter D. White,
Erin E. Wideman, Susan H. Widner, Michael W. Wile, Nann Winter, Jane B. Wishner, Alexander A. Wold, Aaron Wolf, Carolyn Wolf, D. Lyle Wood,
Terry M. Word, Jeremy M. Worley, Joshua T. Worley, Michael T. Worley, Paul T. Yarbrough,Wendy York, Joleen K. Youngers, Diego Zamora, Geno
Zamora, Joseph M. Zebas, Bradford H. Zeikus…. TO ADD YOUR NAME AS A SUPPORTER PLEASE E-MAIL [email protected]
Paid for by The Committee to Keep Judge Robert E. Robles - Joleen Youngers, Treasurer; The Committee to Keep Judge Linda M. Vanzi – Samuel L. Baca, CPA, Treasurer;
The Committee to Keep Judge Tim L. Garcia – Shana Baker, Treasurer www.nmcourtofappeals2010.com
THESE SUPPORTERS CONGRATULATE
JUDGE ROBERT E. ROBLES JUDGE LINDA M. VANZI JUDGE TIM L. GARCIA
ON THEIR APPOINTMENTS TO THE NEW MEXICO COURT OF APPEALS
4 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
Seeking attorney volunteers across New Mexico to teach 5th graders about the Constitution!
Constitution Day is designated by Public Law 108-447 Sec. 111 Division J - SEC. 111(b) which states that all levels of educational institutions receiving federal funds are required to educate students about the U.S. Constitution.
Constitution Day is an event taking shape across the country designed to teach 5th graders about the Constitution. Each fifth grader participating will receive a pocket-size Constitution!
During the week of September 14-18, volunteer attorneys will be partnered with 5th grade teachers in their area to co-teach a lesson on the Constitution. Suggested course materials will be provided, and you will get to deliver pocket-sized Constitutions to the children! Each presentation should last 1-1.5 hours per classroom.
Volunteer attorneys will be given the teacher’s name and contact information in advance so that specific planning may take place.
❏ YES! I’d like to be a Constitution Day Volunteer!*(*requires $30 donation from each attorney to cover classroom materials)
❏ I am unable to volunteer my time but I would like to donate toward the effort of putting a pocket-size constitution in the hands of all New Mexico fifth graders (Amount $________ )
NAME_____________________________________________________ Bar ID ____________
Bar Bulletin - August 17, 2009 - Volume 48, No. 33 5
Table of ConTenTs
MeetingsAugust17 Attorney Support Group, 7:30 a.m., First United Methodist Church
19 Law Practice Management Committee, noon, State Bar Center
19 Health Law Section Board of Directors, noon, State Bar Center
20 NREEL Board of Directors, noon, State Bar Center
21 Family Law Section Board of Directors, 9 a.m., State Bar Center
27 Technology Committee, 4 p.m., State Bar Center
State Bar WorkshopsAugust26 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque
September10 Lawyer Referral for the Elderly Workshop 10:30 a.m.–12:30 p.m., Presentation 1:30–5 p.m., Clinics Española Senior Center, Española
16 Lawyer Referral for the Elderly Workshop 10–11:15 a.m., Presentation 12:30–3:30 p.m., Clinics Edgewood Senior Center, Edgewood
23 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque
Notices ................................................................................................................................................................6Proclamation: August 26, Paralegal Day ..................................................................................................9Legal Education Calendar ......................................................................................................................... 10Writs of Certiorari ......................................................................................................................................... 12List of Court of Appeals’ Opinions ........................................................................................................... 14Recent Rule-Making Activity ..................................................................................................................... 15Rules/Orders
No. 31,583: In the Matter of the Suspension of Active Members of the State Bar of New Mexico for Noncompliance With Rule 18-301 NMRA, Governing Minimum Continuing Legal Education for Compliance Year 2008 ........................................................ 18
No. 09-8300-028: In the Matter of the Amendments of Uniform Jury Instructions 14-5120, 14-5181, 14-5183, and 14-6018 and Adoption of New Uniform Jury Instructions 14-5185 and 14-5186 NMRA for Criminal Cases .............................................. 18
No. 09-8300-029: In the Matter of the Amendments of Rule 16-104 NMRA of the Rules of Professional Conduct ............................................................................................ 22
Proposed Revisions to the Rules of Civil Procedure for the District Courts .................... 24
Opinions
From the New Mexico Court of Appeals
2009-NMCA-064, No. 27,338: State v. Smile ............................................................................... 25
2009-NMCA-065, No. 24,026: Albuquerque Commons Partnership v. City Council of the City of Albuquerque ..................................................................................... 38
With respect to opposing parties and their counsel:
I will refrain from excessive and abusive discovery, and I will comply with reasonable discovery requests.
Professionalism Tip
Officers, Board of Bar Commissioners Henry A. Alaniz, President Stephen S. Shanor, President-Elect Jessica A. Pérez, Vice President Hans William Voss, Secretary-Treasurer Craig A. Orraj, Immediate-Past President
Board of Editors Mark A. Glenn, Chair Joan Marsan Janet Blair Kathryn Joy Morrow Paul A. Bleicher Steven K. Sanders Joel McElroy Carson Stacey E. Scherer Danny W. Jarrett Elizabeth Staley
State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago (505)797-6030•[email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri (505)797-6058•[email protected] Pressman Brian Sanchez Production Assistant Pam Zimmer Press Shop Assistant Michael Rizzo
The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
August 17, 2009, Vol. 48, No. 33Cover Artist:PaintingsbyToddLenhoff([email protected])giveanin-depth,vibrantviewofhisinterpretationofpeople.Throughcolor, line, and shape, he is able to bring character, culture and life to the canvas. He sees his work like that of the subject matter—a continuous evolution. To see the cover art in its original color, visit www.nmbar.org and click on Attorneys/Members/Bar Bulletin.
6 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
noTiCes
Judicial Records Retention and Disposition Schedules Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court. Court Exhibits For Years May be Retrieved Through lst Judicial District Court Exhibits in Criminal, Civil, and Domestic 1974–1993 August 28 (505) 827-4687 Relations, Children’s Court, and Probate Cases
CourT newsN.M. Supreme CourtBoard of Legal SpecializationComments Solicited The following attorney is applying for certification as a specialist in the area of law identified. Application is made under the New Mexico Board of Legal Special-ization, Rules 19-101 through 19-312 NMRA, which provide that the names of those seeking to qualify shall be released for publication. Further, attorneys and others are encouraged to comment upon any of the applicant’s qualifications within 30 days after the publication of this notice. Address comments to New Mexico Board of Legal Specialization, PO Box 93070, Albuquerque, NM 87199.
George R. McFallRecertification Employment/Labor Law
Compilation CommissionMeeting The New Mexico Compilation Com-mission will meet at 9 a.m., Aug. 18, in the Supreme Court Building, Room 208, to discuss the Advisory Committee’s recom-mendations regarding a publishing contract pursuant to NMSA 1978, Section 12-1-3. The commission will convene into executive session immediately and reconvene into gen-eral session to announce any final decision.
Judicial Performance Evaluation Commission The Judicial Performance Evaluation Commission was created by the New Mexico Supreme Court to provide voters with fair, responsible and constructive evaluations of trial and appellate judges and justices seeking retention in general elections. The results
of the evaluations also provide judges with information that can be used to improve their professional skills as judicial officers. The commission’s next regular meeting will be from 8 a.m. to 5 p.m., Aug. 28, at the State Bar Center, Albuquerque.
Proposed Revisions to the Uniform Jury Instructions—Civil The Committee on Uniform Jury Instructions for Civil Cases is considering whether to recommend proposed amend-ments to the Uniform Jury Instructions—Civil for the Supreme Court’s consideration. To comment on the proposed amendments before they are submitted to the Court for final consideration, submit a comment electronically through the Supreme Court’s Web site at http://nmsupremecourt.nm-courts.gov/, or send written comments to:
Comments must be received by the Clerk on or before Aug. 24 to be considered by the Court. Note that any submitted comments may be posted on the Supreme Court’s Web site for public viewing. For reference, see the Aug. 3 (Vol. 48, No. 31) Bar Bulletin.
Thirteenth Judicial District CourtNew Hours for Clerks’ Offices The 13th Judicial District clerks’ offices located in Bernalillo, Grants, and Los Lunas have new business hours. All business with the clerks’ offices, in person or by telephone, will be conducted from 9 a.m. to noon and 1 p.m. to 5 p.m. For further information, contact Greg Ireland, (505) 865-2422.
U. S. Bankruptcy Court for the District of New MexicoInvestiture Ceremony Robert H. Jacobvitz will take the oath of office as United States bankruptcy judge for the District of New Mexico at an investiture ceremony to be held at 4 p.m., Aug. 28, in the Ceremonial Courtroom, 6th Floor, Fed-eral Building and United States Courthouse, 421 Gold Ave. SW, Albuquerque. A recep-tion will follow at the Albuquerque Country Club, 601 Laguna Boulevard SW.
sTaTe bar newsAppellate Practice SectionAnnual Meeting The Appellate Section will hold its annual membership meeting during the lunch break, Sept. 11, at the 20th Annual Appellate Practice Institute. See the CLE-At-a-Glance insert in the July 27 (Vol. 48, No. 30) Bar Bulletin for details. To register call (505) 797-6020; fax (505) 797-6071; visit www.nmbar.org and select CLE; or mail CLE, PO Box 92860, Albuquerque, NM 87199. Contact Chair Jocelyn Drennan, [email protected], to place an item on the agenda.
Attorney Support Group • Afternoon groups meet regularly on
the first Monday of the month: Sept. 7, 5:30 p.m. • Morning groups meet regularly on
the third Monday of the month: Sept. 21, 7:30 a.m.
Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, (505) 242-6845.
Bar Bulletin - August 17, 2009 - Volume 48, No. 33 7
www.nmbar.org
Law Firm merchant accountTrust your transactions to the only payment solution recommended by the State Bar of New Mexico.
Correctly safeguard and separate •client funds into trust and operating accounts. Credit cards attract clients, improve •cash flow, and reduce collections. Members save up to 25% off credit •card processing fees.
Call 1-866-376-0950 or visit http://www.affiniscape.com/nmbar.
Children’s Law SectionAnnual Art Contest The Children’s Law Section would like to thank those who have made the Seventh Annual Art and Writing Contest possible. The contest, supported by generous contri-butions from the legal community, provides children who are involved in the juvenile justice system with a positive opportunity to express their struggles, look toward the future, and celebrate artistic effort. This year, the children will create works on canvas bags based on the theme “Tools for Success.” Donations will enable contest organizers to purchase canvas bags, art supplies, and prizes. Mail donations to Children’s Law Section, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860. Donations are tax deductible through the State Bar Foundation tax exempt number 895-0390079. Members of the legal com-munity are invited to a reception and display of the artwork from 5 to 8 p.m., Oct. 28, at Scalo Northern Italian Grill, Albuquerque.
Scholarship The Children’s Law Section is accepting scholarship applications from UNM law stu-dents and New Mexico attorneys who have been practicing for no more than three years. The scholarship is being offered to increase awareness of and expertise in the field of children’s law by supporting the attendance of law students and recently admitted attor-neys at the 2010 Children’s Law Institute, or alternate children’s law conference, through payment of the recipient’s conference regis-tration fee. Forward a completed application to Kelly Waterfall, PO Box 878, Los Lunas, NM 87031; or fax to (505) 866-1338. Direct questions regarding the application to Kelly Waterfall, [email protected] or (505) 480-4148. The application must be submitted by Sept. 15. For more informa-tion and an application, visit www.nmbar.org/AboutSBNM/sections/ChildrensLaw/childrenssection.html.
Employment and Labor Law SectionAnnual Meeting and CLE The Employment and Labor Law Sec-tion will hold its annual meeting during lunch, Oct. 9, in conjunction with the 2009 Employment and Labor Law Institute at the State Bar Center. Agenda items should be sent to Chair Danny Jarrett, [email protected] or (505) 878-0515. The cost of the CLE program is $199; and $169
for section members, government and legal services attorneys and paralegals. Lunch will be provided and attendees will earn 5.0 general and 1.0 ethics CLE credits. See the CLE At-A-Glance insert in the July 27 (Vol. 48, No. 30) Bar Bulletin for more informa-tion. To register call (505) 797-6020; fax (505) 797-6071; visit www.nmbar.org and select CLE; or mail CLE, PO Box 92860, Albuquerque, NM 87199.
Public and Legal Services DepartmentFederal Workers’ Compensation Attorney Needed Attorney James Chakares has retired and is in need of locating a federal workers’ compensation attorney to take over cases. Contact Marilyn Kelley, (505) 797-6048.
Public Law SectionAnnual Meeting and CLE The Public Law Section will hold its annual meeting at 12:30 p.m., Sept. 18, in conjunction with the Craig Othmer Memorial Procurement Code Institute at the State Personnel Office Auditorium, 2600 Cerrillos Rd., Santa Fe, NM. All section members are encouraged to attend. Agenda items should be sent to Chair Stephen Ross, [email protected] or call (505) 986-6279. The cost of the CLE program is $149; and $129 for section members, government and legal services attorneys and paralegals. See the CLE At-A-Glance insert in the July 27 (Vol. 48, No. 30) Bar Bulletin for more information. To register call (505) 797-6020; fax (505) 797-6071; visit www.nmbar.org and select CLE; or mail CLE, PO Box 92860, Albuquerque, NM 87199.
Real Property, Trust and Estate SectionAnnual Meeting and CLE The Real Property, Trust and Estate Sec-tion will hold its annual membership meeting during lunch, Sept. 24, at the 2009 Estate Planning, Probate and Trust Law Symposium at the State Bar Center. Contact Chair Pat-rick Dolan, [email protected] or (505) 988-2901, to place an item on the agenda.
Solo and Small Firm SectionSection Meeting New Mexico Senate Majority Leader Michael S. Sanchez will be the guest speaker
at the section meeting to be held at noon, Sept. 15, at the State Bar Center. Sanchez will speak about the upcoming 2010 legisla-tive session and will address issues related to the budget, the legislative process, and other important issues facing our state. Lunch will be provided to section members compliments of the section. Non-members may purchase lunch for $7.50 per person. Non-members are encouraged to join the section for a $15 membership fee, which will pay for lunch and for section membership dues through 2010. Join the section and pay the annual dues prior to the section meeting and speaker presentation. R.S.V.P. to Tony Horvat, [email protected].
Young Lawyers Division “Meet the Judges” Luncheon The Young Lawyer’s Division will host a “Meet the Judges” luncheon from noon to 1:15 p.m., Aug. 28, at the 2nd Judicial District Attorney’s Office, 1st Floor Confer-ence Room, 520 Lomas NW, Albuquerque. Members are invited to have lunch with the Honorable Linda Vanzi, the Honorable Tim Garcia, the Honorable Robert Robles, the Honorable Beatrice Brickhouse, the Honor-able Alan Malott, the Honorable Gerard Lavelle, and the Honorable Briana Zamora. Space is limited to the first 55 guests to re-spond. R.S.V.P. by Aug. 21 to Clara Moran, [email protected].
8 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
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oTher barsAlbuquerque Bar AssociationMember Luncheon The Albuquerque Bar Association’s Member Luncheon will be held at noon, Sept. 1, at the Embassy Suites Hotel, 1000 Woodward Pl. NE, Albuquerque. Professor Erik Gerding of the UNM School of Law will present Grading the Obama Admin-istration’s Financial Reform Proposals. The CLE (1.0 ethics and 1.0 professionalism CLE credits) will immediately follow the luncheon from 1:15 to 3:15 p.m. Judge Bill Lang will moderate a judges’ panel on May It Peeve the Court 2009. Lunch only: $25 members/$35 non-members with reservations; lunch and CLE: $85 members/$115 non-members with reservations; CLE only: $60 members/$80 non-members. Register for lunch by noon, Aug. 28. To register: 1. log onto www.abqbar.com; 2. e-mail [email protected]; 3. call (505) 842-1151 or (505) 243-
2615; 4. by fax to (505) 842-0287; or 5. by mail to PO Box 40, Albuquerque,
NM 87103.
N.M. Criminal Defense Lawyers AssociationAugust CLE Using networking sites like My Space and Facebook for investigation is just one highlight of the upcoming Aug. 28 CLE sponsored by the New Mexico Criminal Defense Lawyers Association. Michele Stuart of JAG Investigations in Arizona will be the key presenter. For more information, visit www.nmcdla.org, e-mail [email protected], or call (505) 992-0050.
unMSchool of LawFree Library Services for New Mexico Attorneys • Check out circulating books. • Delivery (fax, e-mail, or mail) of articles
or other documents available in our col-lection. (Requests must include an exact citation.)
• Interlibrary loan of materials from other law libraries. (The Law Library does not charge a fee for this service, but the attorney will be responsible for any fees assessed by the lending library.)
• Onsite access to research databases such as Westlaw-Pro, LexisNexis Academic, Loislaw, Shepard’s, RIA Checkpoint, and many others.
• Onsite access to LexisNexis Academic and Loislaw at the UNM branch campus libraries in Valencia County, Gallup, and Los Alamos (licenses provided by UNM Law Library).
• Advice concerning the licensing of low- cost online legal resources.
For more information about the UNM Law Library and any of these free services, visit http://lawlibrary.unm.edu, call (505) 277-0935, or e-mail [email protected].
oTher newsDisability Rights N.M.Fund-raising Event In celebration of their 30-year an-niversary, Disability Rights New Mexico (formerly New Mexico Protection and Advocacy) is having a fund-raising golf tour-nament on Sept. 15 at Sandia Resort and Casino Golf Course. Lunch is provided for all participants and prizes will be awarded. Tee off time is 7:30 a.m. and fees are $100 per golfer. For more information, call (505) 256-3100 or toll free 1-800-432-4682.
Oliver Seth American Inn of CourtNew Pupillages In preparation for the upcoming year, the Oliver Seth American Inn of Court is forming new pupillages. Interested parties involved in litigation in northern New Mexico should send brief biographies to the Oliver Seth American Inn of Court, c/o Hon. Paul J. Kelly, Jr., U.S. Circuit Judge, PO Box 10113, Santa Fe, NM 87504-6113.
Samaritan Counseling CenterSeminar Samaritan Counseling Center is spon-soring Ethical Principles for Interprofessional Collaboration in Working with Separated and Divorced Families from 8 a.m. to 4 p.m., Aug. 28, at the Presbyterian Administration Center, 2501 Buena Vista SE, Albuquer-que. The seminar will foster more effective cooperation between mental health and legal professionals who work with families struggling with high-conflict divorce. Keynote speakers are Joan McIver Gibson, PhD, retired director of the Health Sciences Ethics Program and senior bioethicist with the Institute for Ethics at UNM; the Hon-orable Gerard Lavelle, Family Law Division of the 2nd Judicial District Court; and other mental health and legal experts. Six CEU credits are available for psychologists and counselors. Attorneys may earn 1.5 general, 2.7 ethics, and 1.0 professional CLE credits. Call the Samaritan Counsel-ing Center, (505) 842-5300, to register or request information. The cost is $125 and registration deadline is Aug. 21.
Order No. 09-8300-029, In the Matter of the Amendments of Rule 16-104 NMRA of the Rules of Professional Conduct (see page 22 of this issue of the Bar Bulletin), amends Rule 16-104 regarding disclosure of professional liability insurance.
The Lawyers Professional Liability and Insurance Committee has assembled informa-tion to assist members regarding compliance with the new rule. Visit the committee’s Web site, http://www.nmbar.org/AboutSBNM/Committees/LPL/LPL.html, for ques-tions and answers and lists of brokers and carriers. Also available is a helpful article, “What Attorneys Need to Know About Professional Liability Insurance.”
12 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
effeCTive augusT 17, 2009
Writs of certiorari
as updated By the clerk of the neW mexico supreme court
petitions for Writ of certiorari filed and pending:Date Petition Filed
NO. 31,880 State v. Cline (COA 29,173) 8/7/09NO. 31,879 State v. Harris (COA 28,887) 8/7/09NO. 31,878 Padilla v. Hoisington (12-501) 8/10/09NO. 31,877 State v. Cauffman (COA 29,012) 8/6/09NO. 31,876 Lopez v. Tapia (12-501) 8/10/09NO. 31,875 Esquibel v. City of Santa Fe (COA 27,548) 8/5/09NO. 31,871 State v. Jordan (COA 29,303) 8/3/09NO. 31,870 Reyes v. Janecka (12-501) 8/3/09NO. 31,872 State v. Dombos (COA 28,994) 7/31/09NO. 31,869 State v. Thompson (COA 29,419) 7/31/09NO. 31,868 State v. Martinez (COA 29,199) 7/31/09NO. 31,867 State v. Shelby (COA 29,100) 7/31/09NO. 31,864 Arias v. Phoenix Indemnity (COA 28,282) 7/29/09NO. 31,863 State v. Creighton M. (COA 29,210) 7/29/09NO. 31,862 Gutierrez v. State (12-501) 7/28/09NO. 31,861 State v. Dixon (COA 29,240) 7/27/09NO. 31,812 State v. Sena (COA 24,156) 7/24/09NO. 31,857 State v. Maez (COA 27,528) 7/21/09NO. 31,855 State v. Romero (COA 29,060) 7/20/09NO. 31,854 State v. Albarez (COA 29,468) 7/20/09NO. 31,853 State v. Garcia (COA 27,939) 7/20/009NO. 31,852 State v. Ordunez (COA 28,996) 7/20/09NO. 31,851 State v. Benioh (COA 27,920) 7/20/09NO. 31,850 Pruyn v. Lam (COA 28,103) 7/20/09NO. 31,856 State v. Judd (COA 27,550) 7/17/09NO. 31,780 Lacour v. Heredia (12-501) 7/17/09 Response due 9/2/09 by extnNO. 31,846 Houde v. Firri (COA 28,796) 7/16/09NO. 31,845 Guzman v. Laguna Development Corp. (COA 27,827) 7/15/09NO. 31,746 State v. Kirby (COA 28,828) 7/15/09NO. 31,839 State v. Lopez (COA 27,862) 7/13/09NO. 31,828 Kavel v. Romero (12-501) 7/9/09 Response due 8/27/09NO. 31,734 Santiago v. Tapia (12-501) 7/1/09 Response due 8/26/09 by extnNO. 31,806 Loera v. Moya (12-501) 6/30/09 Response due 8/17/09 by extn NO. 31,799 Garcia v. Tapia (12-501) 6/25/09 Response due 8/26/09 by extnNO. 31,701 State v. Brusuelas (COA 27,107) 6/24/09 Response due 8/25/09 by extnNO. 31,791 State v. Atcitty (COA 27,189/27,940/27,333) 6/22/09NO. 31,763 Parmentier v. Heredia (12-501) 6/12/09 Response due 8/5/09 by extn
certiorari granted But not yet suBmitted to the court:
(Parties preparing briefs) Date Writ IssuedNO. 30,827 State v. Sims (COA 26,590) 1/22/08NO. 31,092 State v. Mailman (COA 27,966) 5/30/08NO. 31,117 State v. Moore (COA 28,243) 6/12/08NO. 31,101 State v. Montano (COA 28,002) 6/19/08NO. 31,191 State v. Schwartz (COA 28,349) 7/21/08NO. 31,218 State v. Henley (COA 27,925) 7/25/08NO. 31,187 State v. Aragon (COA 26,185) 7/31/08NO. 31,224 State v. Harrison (COA 27,224) 8/6/08NO. 31,294 State v. Marquez (COA 27,735) 9/22/08NO. 31,315 D’Antonio v. Garcia (COA 27,681) 10/1/08NO. 31,328 Garcia v. State (On rehearing) (12-501) 12/29/08NO. 31,430 State v. Ochoa (COA 28,175) 12/30/08NO. 31,287 Waterhouse v. Heredia (12-501) 1/6/09NO. 31,480 City of Aztec v. Gurule (COA 28,705) 2/3/09NO. 31,491 Ideal v. Burlington Resources Oil & Gas (COA 29,025) 2/3/09NO. 31,526 State v. Phillips (COA 27,019) 2/23/09NO. 31,549 City of Santa Fe v. Travelers Casualty (COA 28,944) 2/25/09NO. 31,433 Romero v. Philip Morris, Inc. (COA 26,993) 2/27/09NO. 31,510 State v. Smith (COA 27,704) 3/13/09NO. 31,100 Allen v. LeMaster (12-501) 3/13/09NO. 31,546 Gomez v. Chavarria (COA 28,072/28,073) 3/24/09NO. 31,567 State v. Guthrie (COA 27,022) 3/24/09NO. 31,603 Guest v. Allstate Ins. Co. (COA 27,253) 4/2/09NO. 31,602 Allstate Ins. Co. v. Guest (COA 27,253) 4/2/09NO. 31,612 Ortiz v. Overland Express (COA 28,135) 4/20/09NO. 31,656 State v. Rivera (COA 25,798) 5/5/09NO. 31,637 Akins v. United Steel (COA 27,132) 5/14/09NO. 31,686 McNeill v. Rice Engineering (COA 29,207) 5/20/09NO. 31,717 State v. Johnson (COA 27,867) 6/17/09NO. 31,719 State v. Lara (COA 27,166) 6/17/09NO. 31,738 State v. Marlene C. (COA 28,352) 6/17/09NO. 31,723 State v. Mendez (COA 28,261) 6/23/09NO. 31,733 State v. Delgado (COA 27,192) 6/23/09NO. 31,724 Albuquerque Commons v. City/Albuquerque (COA 24,026/24,027/24,042/24,425) 7/1/09NO. 31,732 State v. Smile (COA 27,338) 7/1/09NO. 31,739 State v. Marquez (COA 27,971) 7/1/09NO. 31,740 State v. McCorkle (COA 29,124) 7/1/09NO. 31,743 State v. Marquez (COA 28,938) 7/1/09NO. 31,741 State v. Gardner (COA 27,234) 7/1/09NO. 31,775 State v. Warren (COA 29,147) 7/15/09NO. 31,703 State v. Nez (COA 26,811) 7/23/09NO. 31,745 State v. Jackson (COA 28,107) 7/23/09NO. 31,813 State v. Soliz (COA 28,018) 7/29/09
Bar Bulletin - August 17, 2009 - Volume 48, No. 33 13
Writs of certiorari http://nmsupremecourt.nmcourts.gov.
NO. 31,750 Kilgore v. Fuji (COA 27,470) 7/30/09NO. 31,840 State v. Garcia (COA 28,465) 8/11/09
certiorari granted and suBmitted to the court:
(Submission = date of oral argument or briefs-only submission)
Submission DateNO. 30,657 State v. Nick R. (COA 27,145) 10/29/08NO. 30,787 Cable v. Wells Fargo Bank (On reconsideration) (COA 26,357) 12/15/08NO. 30,937 State v. Garcia (COA 27,091) 12/16/08NO. 30,953 State v. Santiago (COA 26,859) 1/12/09NO. 31,329 Kirby v. Guardian Life (COA 27,624) 2/9/09NO. 30,956 Davis v. Devon (COA 28,147/28,154) 2/9/09NO. 30,957 Ideal v. BP America (COA 28,148/28,153) 2/9/09NO. 30,958 Smith v. Conocophillips (COA 28,151/28,152) 2/9/09NO. 31,263 Garcia v. Gutierrez (COA 26,484) 2/10/09NO. 31,192 Reule Sun Corporation v. Valles (On rehearing) (COA 27,254) 3/9/09NO. 31,258 Marchstadt v. Lockheed (COA 27,222) 3/11/09NO. 31,153 State v. Wyman (COA 28,237) 3/25/09NO. 31,279 Lions Gate v. D’Antonio (COA 28,668) 4/13/09NO. 31,106 State v. Anaya (COA 27,114) 4/15/09NO. 31,244 State v. Slayton (COA 27,892) 4/29/09NO. 31,374 Schultz v. Pojoaque Tribal Police Dept. (COA 28,508) 5/11/09
NO. 31,365 State v. Lucero (COA 27,364) 5/13/09NO. 31,215 State v. Johnson (COA 26,878) 5/27/09NO. 30,766 State v. Jones (COA 27,342) 5/27/09NO. 31,363 Hanosh v. King (COA 28,175) 7/20/09NO. 31,318 Dept. of Transportation v. S & S Trezza (COA 28,475) 8/10/09NO. 31,364 Mountain States v. Allstate Ins. Co. (COA 28,686) 8/10/09NO. 31,325 Kersey v. Hatch (12-501) 8/10/08NO. 31,213 State v. Dodson (COA 28,382) 8/11/09NO. 31,288 State v. Savedra (COA 27,288/27,289/27,290) 8/11/09NO. 31,265 State v. Hill (COA 27,401) 8/31/09NO. 31,416 Carlsbad Hotel Associates v. Patterson (COA 27,922) 9/14/09NO. 31,539 McGary v. AMS Staff Leasing (COA 28,867) 9/14/09NO. 31,308 State v. Sosa (COA 26,863) 9/15/09NO. 31,151 State v. Munoz (COA 26,956) 9/30/09NO. 31,245 State v. Littlefield (COA 27,504) 9/30/09NO. 31,186 State v. Bullcoming (COA 26,413) 10/14/09NO. 31,360 State v. Morales (COA 26,969) 11/10/09
petition for Writ of certiorari denied:
NO. 31,837 State v. Valenzuela (COA 29,351) 8/7/09NO. 31,838 State v. Judd (COA 29,460) 8/7/09NO. 31,866 Crawford v. State (12-501) 8/7/09
No. 29314 6th Jud Dist Hidalgo CR-08-22, STATE v L ALVERAZ (affirm) 8/3/2009No. 29353 1st Jud Dist Santa Fe JQ-07-8, CYFD v ALFRED Q (affirm) 8/6/2009No. 29562 1st Jud Dist Rio Arriba DV-03-156, E MARTINEZ v P MARTINEZ (dismiss) 8/6/2009No. 29344 3rd Jud Dist Dona Ana CR-07-1424, STATE v S COLWELL (affirm) 8/7/2009No. 29366 4th Jud Dist Mora CV-08-61, J OLIVER v A WALCK (dismiss) 8/7/2009No. 29512 12th Jud Dist Otero CR-07-241, STATE v A TROUT (affirm) 8/7/2009
Gina M. Maestas, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fé, NM 87504-2008 • (505) 827-4925
effeCTive augusT 7, 2009
opinions
as updated By the clerk of the neW mexico court of appeals
Slip Opinions for Published Opinions may be read on the Court’s Web site:http://coa.nmcourts.com/documents/index.htm
Bar Bulletin - August 17, 2009 - Volume 48, No. 33 15
Kathleen Jo Gibson, 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
To view pending• proposed rule changes visit the New Mexico Supreme Court’s Web site: http://nmsupremecourt.nmcourts.gov/
To view recently • approved rule changes, visit the New Mexico Compilation Commission’s Web site: http://www.nmcompcomm.us/
effeCTive augusT 10, 2009
Pending ProPosed rule Changes
Comment Deadline13-1636 Malicious abuse of process defined;
general statement of elements (UJI Civil) 08/24/09
13-1637 Malicious abuse of process; “judicial proceeding” defined (UJI Civil) 08/24/09
13-1638 Malicious abuse of process; “active participation” defined (UJI Civil) 08/24/09
13-1639 Misuse of process; lack of probable cause (UJI Civil) 08/24/09
13-1640 Misuse of process; procedural impropriety, defined (UJI Civil) 08/24/09
13-1641 Malicious abuse of process; illegitimate motive (UJI Civil) 08/24/09
13-1642 Malicious abuse of process; bifurcated trial; instructions prior to bifurcated claim of malicious abuse of process (UJI Civil) 08/24/09
3-202 Summons (Rules of Civil Procedure for the Metropolitan Courts) 08/10/09
9-102B Certificate of recusal (Criminal forms) 07/27/099-103B Notice of recusal (Criminal forms) 07/27/094-225 Court’s certificate of service (Civil forms) 07/27/099-222 Court’s certificate of service
(Criminal forms) 07/27/094-221 Certificate of service (Civil forms) 07/27/094-221A Party’s certificate of service (Civil forms) 07/27/099-221 Certificate of service (Criminal forms) 07/27/099-221A Party’s certificate of service
(Criminal forms) 07/27/094-102 Certificate of excusal or recusal
(Civil forms) 07/27/094-103 Notice of excusal (Civil forms) 07/27/094-104 Notice of recusal (Civil forms) 07/27/094-102A Certificate of excusal or recusal
(Civil forms) 07/27/094-103A Notice of excusal (Civil forms) 07/27/094-104A Notice of recusal (Civil forms) 07/27/094-104B Notice of assignment (Civil forms) 07/27/099-103C Notice of assignment (Criminal forms) 07/27/096-701 Judgment (Rules of Criminal Procedure
for the Magistrate Courts) 07/27/098-701 Judgment (Rules of Procedure for the
Municipal Courts) 07/27/096-703 Appeal (Rules of Criminal Procedure
for the Magistrate Courts) 07/27/098-703 Appeal (Rules of Procedure for the
Municipal Courts) 07/27/09
2-105 Assignment and designation of judges (Rules of Civil Procedure for the Magistrate Courts) 07/27/09
6-105 Assignment and designation of judges (Rules of Criminal Procedure for the Magistrate Courts) 07/27/09
9-612 Order on direct criminal contempt (Criminal forms) 07/27/09
9-613 Judgment and sentence on indirect criminal contempt (Criminal forms) 07/27/09
9-614 Order on direct civil contempt (Criminal forms) 07/27/09
9-615 Order on indirect civil contempt (Criminal forms) 07/27/09
9-616 Conditional discharge order (Criminal forms) 07/27/09
9-617 Final order of discharge (Criminal forms) 07/27/09
9-618 Order finding no violation of probation (Criminal forms) 07/27/09
9-619 Order finding probation violation and continuing sentence (Criminal forms) 07/27/09
9-620 Probation violation, judgment, and sentence (Criminal forms) 07/27/09
10-313.1 Representation of multiple siblings (Children’s Court) 07/20/09
12-502 Certiorari to the Court of Appeals (Rules of Appellate Procedure) 05/04/09
10-343 Adjudicatory hearing; time limits; continuances (Children’s Court Rules) 04/17/09
reCently aPProved rule Changes sinCe release of 2009 nMra
Effective Date
rules of civil procedure for the district courts
1-096.1 Review of election recall petitions. 09/04/091-016 Pretrial conferences; scheduling;
management. 05/15/091-026 General provisions governing discovery. 05/15/09 1-033 Interrogatories to parties. 05/15/091-034 Production of documents and things and
entry upon land for inspection and other purposes. 05/15/09
1-037 Failure to make discovery; sanctions. 05/15/091-038 Jury trial in civil actions. 12/15/081-045 Subpoena. 05/15/091-045 Subpoena. 08/07/091-045.1 Interstate subpoenas. 08/07/09
1-071.1 Statutory stream system adjudication suits; service and joinder of water rights claimants; responses. 04/08/09
1-071.2 Statutory stream adjudication suits; stream system issues and expedited inter se proceedings. 04/08/09
1-071.3 Statutory stream adjudication suits; annual joint working session. 04/08/09
1-071.4 Statutory stream adjudication suits; ex parte contacts; general problems of administration. 04/08/09
1-071.5 Statutory stream adjudication suits; excusal or recusal of a water judge. 04/08/09
1-074 Administrative appeals; statutory review by district court of administrative decisions or orders. 12/15/08
1-075 Constitutional review by district court of administrative decisions and orders. 12/15/08
1-088 Designation by judge. 04/08/091-125 Domestic Relations Mediation Act
programs. 05/18/09
rules of civil procedure for the magistrate courts
2-802 Garnishment. 12/31/08
civil forms
4-805 Application for writ of garnishment. 09/04/094-805B Application for writ of garnishment. 09/04/094-803 Claim of exemptions on execution. 05/06/094-805B Application for writ of garnishment. 12/31/08
rules of criminal procedure for the district courts
5-104 Time. 05/06/095-121 Orders; preparation and entry. 05/06/095-207 Withdrawn. 04/06/09 5-604 Time of commencement of trial. 11/24/085-614 Motion for new trial. 05/06/095-704 Death penalty; sentencing. 05/06/095-801 Modification of sentence. 05/06/095-802 Habeas corpus. 05/06/09
rules of criminal procedure for the magistrate courts
6-108 Non-attorney prosecutions. 12/31/086-110A Audio and audio-visual appearances
of defendant. 12/31/086-113 Victim’s rights. 12/31/086-201 Commencement of action. 12/31/086-401 Bail. 12/31/086-403 Revocation of release. 12/31/086-502 Plea and plea agreements. 12/31/086-506 Time of commencement of trial. 01/15/096-703 Appeal. 01/15/09
rules of criminal procedure for the metropolitan courts
7-110A Audio and audio-visual appearance of defendant. 09/10/09
7-502 Pleas and plea agreements. 09/10/097-106 Excusal; recusal; disability. 01/15/097-401 Bail. 02/02/097-506 Time of commencement of trial. 01/15/097-602 Jury trial. 01/15/097-703 Appeal. 01/15/09
rules of procedure for the municipal courts
8-103 Rules; forms; fees. 12/31/088-109A Audio and audio-visual appearances
of defendant. 12/31/088-111 Non-attorney prosecutions. 12/31/088-201 Commencement of action. 12/31/088-401 Bail. 12/31/088-403 Revocation of Release. 12/31/088-501 Arraignment; first appearance. 12/31/088-502 Pleas. 12/31/088-506 Time of commencement of trial. 01/15/098-703 Appeal. 01/15/09
criminal forms
9-102 Certificate of excusal or recusal. 09/10/099-102A Certificate of excusal or recusal. 09/10/099-406A Guilty plea or no contest plea proceeding. 12/31/08 9-408A Plea and disposition agreement. 12/31/08 9-604 Judgment and Sentence. 05/06/099-701 Petition for writ of habeas corpus. 05/06/09
rules of appellate procedure
12-202 Appeals as of right; how taken. 09/04/0912-308 Computation of time. 09/04/0912-505 Certiorari to the district court; decisions
on review of administrative agency decisions. 09/04/09
12-603 Appeals in actions challenging candidates or nominating petitions; primary or general elections; school board recalls and recalls of elected county officials. 09/04/09
12-302 Appearance, withdrawal or substitution of attorneys. 05/06/09
12-305 Form of papers prepared by parties. 05/25/0912-404 Rehearings. 05/06/0912-501 Certiorari to the district court from denial
of habeas corpus. 05/06/0912-607 Certification from other courts. 04/08/09
uJi civil
13-110A Instruction to jury. 12/31/0813-110B Oath to interpreter. 12/31/0813-1406 Strict products liability; care not an issue. 05/15/09
14-5120 Ignorance or mistake of fact. 09/16/0914-5181 Self defense; nondeadly force
by defendant. 09/16/0914-5183 Self defense; deadly force by defendant. 09/16/0914-5185 Self defense against excessive force
by a peace officer; nondeadly force by defendant. 09/16/09
14-5186 Self defense against excessive force by a peace officer; deadly force by defendant. 09/16/09
14-6018 Special verdict; kidnapping. 09/16/0914-111 Supplemental jury questionnaire. 02/02/0914-120 Voir dire of jurors by court. 02/02/09 14-203 Act greatly dangerous to life;
essential elements. 02/02/0914-2212 Aggravated battery on a peace
officer with a deadly weapon; essential elements. 02/02/09
14-2217 Aggravated fleeing a law enforcement officer. 02/02/09
rules governing admission to the Bar
15-301.2 Legal services provider limited law license for emeritus and non-admitted attorneys. 01/14/09
rules of professional conduct
16-104 Communication (Rules of Professional Conduct) 11/02/09
18 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
rules/ordersFrom the New Mexico Supreme Court
http://www.nmcompcomm.us/
NO. 31,583
IN the Matter Of the SuSpeNSION Of actIve MeMberS Of the State bar Of New MexIcO fOr NONcOMplIaNce wIth rule 18-301 NMra, GOverNING MINIMuM cONtINuING leGal educatION fOr cOMplIaNce Year 2008
Order Of SuSpeNSION
WHEREAS, this matter came on for consideration by the Court upon the certification filed herein by the Minimum Continuing Legal Education Board that certain active members of the State Bar of New Mexico failed to comply with MCLE requirements for the 2008 reporting year; and WHEREAS, Herman E. Ortiz was granted an extension of time until August 3, 2009, to comply with MCLE requirements for the 2008 reporting year, and having failed to comply by said date, and the Court being sufficiently advised, Chief Justice Ed-ward L. Chávez, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels concurring;
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that effective August 4, 2009, the following named member of the State Bar of New Mexico be and hereby is SUS-PENDED from the practice of law in the courts of this state by reason of noncompliance with MCLE requirements for the 2008 reporting year. IT IS FURTHER ORDERED that the Clerk of this Court shall change the status of membership in the bar for each attorney listed below as shown on the official roll of attorneys, and that notice thereof be given to each judge in the state of New Mexico and be published in the Bar Bulletin:
Herman E. OrtizP.O. Box 75
Garfield, NM 87936-0075 IT IS SO ORDERED. WITNESS, Honorable Edward L. Chávez,
Chief Justice of the Supreme Court of the State of New Mexico, and the seal of said Court this 4th day of August, 2009.
_________________________________________ Kathleen Jo Gibson, Chief Clerk
of the Supreme Court of the State of New Mexico
NO. 09-8300-028
IN the Matter Of the aMeNdMeNtS Of uNIfOrM JurY INStructIONS 14-5120, 14-5181, 14-5183, aNd 14-6018 aNd adOptION Of New uNIfOrM JurY INStructIONS 14-5185 aNd 14-5186 NMra fOr crIMINal caSeS
Order
WHEREAS, this matter came on for consideration by the Court upon recommendation from the Uniform Jury Instructions for Criminal Cases Committee to approve amendments of 14-5120, 14-5181, 14-5183, and 14-6018 NMRA and to adopt new Uniform Jury Instructions 14-5185 and 14-5186 NMRA for criminal cases, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Edward L. Chávez, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels concurring; NOW, THEREFORE, IT IS ORDERED that the amendments of 14-5120, 14-5181, 14-5183, and 14-6018 NMRA hereby are APPROVED; IT IS FURTHER ORDERED that new Uniform Jury Instruc-tions 14-5185 and 14-5186 NMRA for criminal cases hereby are ADOPTED; IT IS FURTHER ORDERED that the amendments of 14-5120, 14-5181, 14-5183, and 14-6018 NMRA and adoption of new Uniform Jury Instructions 14-5185 and 14-5186 NMRA for criminal cases shall be effective September 16, 2009;
IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and directed to give notice of the amendments of the above-referenced instructions and adoption of the new instruc-tions by publishing the same in the Bar Bulletin and NMRA and posting the same on the New Mexico Compilation Commission web site, www.nmcompcomm.us/nmrules. IT IS SO ORDERED. WITNESS, Honorable Edward L. Chávez,
Chief Justice of the Supreme Court of the State of New Mexico, and the seal of said Court this 31st day of July, 2009.
_________________________________________ Kathleen Jo Gibson, Chief Clerk
of the Supreme Court of the State of New Mexico________________________________14-5120. Ignorance or mistake of fact.1 Evidence has been presented that the defendant believed that __________________2. The burden is on the state to prove beyond a reasonable doubt that the defendant did not [act] [fail to act] under an honest and reasonable belief in the existence of those facts. If you have a reasonable doubt as to whether the defendant’s [action] [or] [failure to act] resulted from a mistaken belief of those facts, you must find the defendant not guilty.
USE NOTE 1. If this instruction is given, add to the essential elements instruction for the offense charged, “The defendant did not [act] [fail to act] under a mistake of fact.” 2. Describe the facts constituting a mistake of fact. [As amended, effective January 1, 1997.]
Bar Bulletin - August 17, 2009 - Volume 48, No. 33 19
Committee commentary. — In State v. Bunce, 116 N.M. 284, 285, 861 P.2d 965 (1993), the Supreme Court held it was funda-mental error to fail to instruct on mistake-of-fact as a defense of embezzlement. “Ordinarily, a defendant is not entitled to a specific instruction where the jury has already been adequately instructed upon the matter by other instructions.” State v. Venegas, 96 N.M. 61, 63, 628 P.2d 306, 308 (1981). See also, State v. Long, 121 N.M. 333, 911 P.2d 227 (Ct. App. 1995) relying on State v. Venegas, 96 N.M. at 62-63, 628 P.2d at 307-08. [As amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009.]________________________________14-5181. Self defense; nondeadly force by defendant.1 Evidence has been presented that the defendant acted in self defense. The defendant acted in self defense if: 1. There was an appearance of immediate danger of bodily harm to the defendant as a result of __________________2; and 2. The defendant was in fact put in fear of immediate bodily harm and __________________3 because of that fear; and 3. The defendant used an amount of force that the defendant believed was reasonable and necessary to prevent the bodily harm; and [4. The force used by defendant ordinarily would not create a substantial risk of death or great bodily harm; and]4 5. The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a rea-sonable doubt as to whether the defendant acted in self defense, you must find the defendant not guilty.
USE NOTE 1. For use in nonhomicide cases when the self defense theory is based upon: necessary defense of self against any unlawful action; reasonable grounds to believe a design exists to commit an unlawful act; or reasonable grounds to believe a design ex-ists to do some bodily harm. If this instruction is given, add to the essential elements instruction for the offense charged, “The defendant did not act in self defense.” 2. Describe unlawful act which would result in some bodily harm as established by the evidence. Give at least enough detail to put the act in the context of the evidence. 3. Describe the act of defendant; e.g. “struck Richard Roe,” “choked Richard Roe.” 4. Use bracketed material only if the defendant’s action re-sulted in death or great bodily harm. If bracketed material is used, the definition of great bodily harm, UJI 14-131 NMRA, must be given if not already given. [As amended, effective January 1, 1997; as amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009.]
Committee commentary. — Subsections A and B of NMSA 1978, Section 30-2-7 (1963) provide that a person may act in self-defense if necessarily or reasonably defending himself or herself against any unlawful action, felony or great personal injury. It is never reasonable to use deadly force against a nondeadly attack. A person may use a deadly force in self-defense only if defending himself or herself against an attack which creates a substantial risk of death or great bodily harm. See commentary
to UJI 14-5171 NMRA and LaFave & Scott, Criminal Law 392 (1972). Element 4 is bracketed and is to be used only if there is evi-dence that the defendant used a force which ordinarily would not cause death or great bodily harm but which resulted in death or great bodily harm. A person is not guilty of homicide if he or she unintentionally kills a third person in self-defense. State v. Sherwood, 39 N.M. 518, 50 P.2d 968 (1953). See generally, An-not., 55 A.L.R.3d 620 (1974). NMSA 1978, Sections 30-3-2 (Aggravated assault) and 30-3-4 (Battery) (1963) provide that an aggravated assault or a battery must be unlawful. The term “unlawfully” means simply that the action is not authorized by law. State v. Mascarenas, 86 N.M. 692, 526 P.2d 1285 (Ct. App. 1974). The words “without excuse or justification” have been held to be “clearly equivalent to the word unlawful.” Territory v. Gonzales, 14 N.M. 31, 89 P. 250 (1907). Cf. State v. Woods, 82 N.M. 449, 483 P.2d 504 (Ct. App. 1971). The phrase “without excuse or justification” identifies a defense theory, i.e., even if all of the acts constituting the crime were committed, the act is otherwise excusable or justifiable. Cf. NMSA 1978, § 30-2-8 (1963). The committee took the position that unlawfulness was gener-ally present in an assault or a battery if the other elements were proved. It is, of course, possible for the state to proceed with a prosecution when the defense is based on some theory of lawful-ness other than self-defense. See e.g., Perkins, Criminal Law 987 (2d ed. 1969). In the event that the case does go to the jury and there is evidence to establish the defense of a lawful assault, an instruction must be drafted for that purpose. The burden on the defendant is only to produce evidence which raises a reasonable doubt in the minds of the jurors. See State v. Harrison, 81 N.M. 623, 471 P.2d 193 (Ct. App.), cert. denied, 81 N.M. 668, 472 P.2d 382 (1970). The burden is then on the state to prove beyond a reasonable doubt that the assault or battery was not justifiable. Cf. Mullaney v. Wilbur, 421 U.S. 684 (1975). The committee revised this instruction in 1981 to resolve the problem presented in State v. Brown, 93 N.M. 236, 599 P.2d 389 (Ct. App.), writ quashed, 93 N.M. 172, 598 P.2d 215, cert. denied, 444 U.S. 1084, 100 S. Ct. 1041, 62 L. Ed. 2d 769 (1979), where the defendant is charged with a nondeadly assault. See UJI 14-5185 NMRA and UJI 14-5186 NMRA if the victim is a law enforcement officer. [As amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009.]________________________________14-5183. Self defense; deadly force by defendant.1 Evidence has been presented that the defendant acted in self defense. The defendant acted in self defense if: 1. There was an appearance of immediate danger of death or great bodily harm2 to the defendant as a result of __________________3; and 2. The defendant was in fact put in fear of immediate death or great bodily harm and ____________4 because of that fear; and 3. The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a rea-sonable doubt as to whether the defendant acted in self defense, you must find the defendant not guilty.
USE NOTE 1. For use in nonhomicide cases when the self defense theory
20 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
is based upon: necessary defense of self against any unlawful ac-tion; reasonable grounds to believe a design exists to commit a felony; or reasonable grounds to believe a design exists to do some great bodily harm. If this instruction is given, add to the essential elements instruction for the offense charged, “The defendant did not act in self defense.” 2. The definition of “great bodily harm,” UJI 14-131 NMRA, must be given if not already given. 3. Describe unlawful act, felony or act which would result in death or some great bodily harm as established by the evidence. Give at least enough detail to put the act in context of the evi-dence. 4. Describe act of defendant; e.g., “struck Richard Roe,” “choked Richard Roe.” [As amended, effective January 1, 1997; as amended by Supreme Court Order No. 09-8300-28, effective September 16, 2009.] ______________________________14-5185. Self defense against excessive force by a peace of-ficer; nondeadly force by defendant.1 Evidence has been presented that the defendant acted in self defense. A defendant has the right to defend himself or herself against an officer only if the officer used excessive force. Exces-sive force means greater force than reasonably necessary. The defendant acted in self defense if: 1. The officer used greater force than reasonable and neces-sary by __________________2; and 2. There was an appearance of immediate danger of bodily harm to the defendant as a result of __________________3; and 3. The defendant was in fact put in fear of immediate bodily harm and __________________4 because of that fear; and 4. The defendant used an amount of force that the defendant believed was reasonable and necessary to prevent the bodily harm; and [5. The force used by defendant ordinarily would not create a substantial risk of death or great bodily harm; and]5 6. The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a rea-sonable doubt as to whether the defendant acted in self defense, you must find the defendant not guilty.
USE NOTE 1. For use in nonhomicide cases when the self defense theory is based upon the limited right of self-defense against excessive force by a peace officer. If this instruction is given, add to the essential elements instruction for the offense charged, “The de-fendant did not act in self defense.” 2. Describe the act of the officer. 3. Describe unlawful act which would result in some bodily harm as established by the evidence. Give at least enough detail to put the act in the context of the evidence. 4. Describe the act of defendant; e.g. “struck Officer Richard Roe,” “choked Officer Richard Roe.” 5. Use bracketed material only if the defendant’s action re-sulted in death or great bodily harm. If bracketed material is used, the definition of great bodily harm, UJI 14-131 NMRA, must be given if not already given. [Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.]
Committee commentary. — When asserting self-defense against a private citizen, a defendant has an “unqualified right to a self-defense instruction in a criminal case when there is evidence which supports the instruction.” State v. Ellis, 2008-NMSC-032, ¶ 15, 144 N.M. 253, 186 P.3d 245 (quoting State v. Kraul, 90 N.M. 314, 318, 563 P.2d 108, 112 (Ct. App. 1977), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977)). “By comparison, a person has only a qualified right to assert self-defense against a police officer, be-cause police officers have a duty to make arrests and a right to use reasonable force when necessary.” Ellis, 2008-NMSC-032, ¶ 15 (citing Kraul, 90 N.M. at 319, 563 P.2d at 113). The burden is on the defendant to persuade the court that reasonable minds could differ on whether the officer’s use of force was excessive, in order for this issue to be submitted to the jury. Ellis, 2008-NMSC-032, ¶ 34. Element 5 is bracketed and is to be used only if there is evi-dence that the defendant used a force which ordinarily would not cause death or great bodily harm but which resulted in death or great bodily harm. A person is not guilty of homicide if he or she unintentionally kills a third person in self-defense. State v. Sher-wood, 39 N.M. 518, 50 P.2d 968 (1953). See generally, Annot., 55 A.L.R.3d 620 (1974). [Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.] __________________________________14-5186. Self defense against excessive force by a peace of-ficer; deadly force by defendant.1 Evidence has been presented that the defendant acted in self defense. A defendant has the right to defend himself or herself against an officer only if the officer used excessive force. Exces-sive force means greater force than reasonably necessary. The defendant acted in self defense if: 1. The officer used greater force than reasonable and neces-sary by __________________2; and 2. There was an appearance of immediate danger of death or great bodily harm3 to the defendant as a result of __________________4; and 3. The defendant was in fact put in fear of immediate death or great bodily harm and ____________5 because of that fear; and 4. The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a rea-sonable doubt as to whether the defendant acted in self defense, you must find the defendant not guilty.
USE NOTE 1. For use in nonhomicide cases when the self defense theory is based upon the limited right of self-defense against excessive force by a peace officer. If this instruction is given, add to the essential elements instruction for the offense charged, “The de-fendant did not act in self defense.” 2. Describe the act of the officer. 3. The definition of “great bodily harm,” UJI 14-131 NMRA, must be given if not already given. 4. Describe unlawful act, felony or act which would result in death or some great bodily harm as established by the evidence. Give at least enough detail to put the act in context of the evidence. 5. Describe act of defendant; e.g., “struck Officer Richard Roe,” “choked Officer Richard Roe.”[Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.]
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Committee commentary. — When asserting self-defense against a private citizen, a defendant has an “unqualified right to a self-defense instruction in a criminal case when there is evidence which supports the instruction.” State v. Ellis, 2008-NMSC-032, ¶ 15, 144 N.M. 253, 186 P.3d 245 (quoting State v. Kraul, 90 N.M. 314, 318, 563 P.2d 108, 112 (Ct. App. 1977), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977)). “By comparison, a person has only a qualified right to assert self-defense against a police officer, because police officers have a duty to make arrests and a right to use reasonable force when necessary.” Ellis, 2008-NMSC-032, ¶ 15 (citing Kraul, 90 N.M. at 319, 563 P.2d at 113). The burden is on the defendant to persuade the court that reasonable minds could differ on whether the officer’s use of force was excessive, in order for this issue to be submitted to the jury. Ellis, 2008-NMSC-032, ¶ 34. [Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.]_______________________________14-6018. Special verdict; kidnapping.1
If you find the defendant guilty of kidnapping [as charged in Count ________]2, then you must determine whether the defen-dant [voluntarily freed __________________ (name of victim) in a safe place] [and] [whether the defendant inflicted physical injury upon __________________ (name of victim)] [and] [whether a sexual offense was committed]3. You must complete the special [form] [forms] to indicate your findings. [For you to make a finding of “yes,” [to the first question,]4 the state must prove to your satisfaction beyond a reasonable doubt that the defendant did not voluntarily free __________________ (name of victim) in a safe place.] [For you to make a finding of “yes,” [to the second ques-tion,]4 the state must prove to your satisfaction beyond a rea-sonable doubt that the defendant inflicted physical injury upon __________________ (name of victim).] [For you to make a finding of “yes,” [to the third question,]4 the state must prove to your satisfaction beyond a reasonable doubt that the defendant committed a sexual offense upon __________________ (name of victim).]
(style of case)QUESTION [1]4
Do you unanimously find beyond a reasonable doubt that the defendant did not voluntarily free __________________ (name of victim) in a safe place? ________ (Yes or No) ____________________ FOREPERSON
(style of case)QUESTION [2]4
Do you unanimously find beyond a reasonable doubt that the defendant inflicted physical injury upon __________________ (name of victim)? ________ (Yes or No) ____________________ FOREPERSON
(style of case)QUESTION [3]4
Do you unanimously find beyond a reasonable doubt that the defendant committed a sexual offense upon __________________ (name of victim)?5 ________ (Yes or No) ____________________ FOREPERSON
USE NOTE 1. This instruction is to be used if there is an issue as to whether the defendant voluntarily freed the victim in a safe place or as to whether the defendant inflicted physical injury on the victim or as to whether the defendant committed a sexual offense upon the victim. All kidnapping is first degree kidnapping unless the defendant voluntarily frees the victim and does not inflict physical injury upon the victim and does not commit a sexual offense upon the victim. The defendant may be found guilty of first degree kidnapping if the jury answers any or all of the above questions, “yes.” If none of the questions is answered “yes,” the defendant is guilty of second degree kidnapping. 2. Insert the count number if more than one count is charged. 3. Use applicable alternative or alternatives. 4. For use if more than one question is given to the jury. 5. Unless the court has instructed on the essential elements of the sexual offense, these elements must be given in a sepa-rate instruction, generally worded as follows: “For you to find that the defendant committed _________________, the state must prove to your satisfaction beyond a reasonable doubt that _______________.” (Add elements of the sexual offense unless they are set out in another essential elements instruction.) [Ef-fective for crimes occurring after February 3, 2004.] [Adopted, effective August 1, 1997; as amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009.]
Committee commentary. — The uniform jury instructions do not include any definition of “physical injury” because the term is not defined by statute or case law.[Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.] Statutory reference. — Subsection B of Section 30-4-1 NMSA 1978. __________________________________
22 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
NO. 09-8300-029
IN the Matter Of the aMeNdMeNtS Of rule 16-104 NMra Of the ruleS Of prOfeSSIONal cONduct
Order
WHEREAS, this matter came on for consideration by the Court upon recommendation of the New Mexico State Bar Board of Bar Commissioners to amend Rule 16-104 NMRA of the Rules of Professional Conduct, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Ed-ward L. Chávez, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels concurring; NOW, THEREFORE, IT IS ORDERED that the amendments of Rule 16-104 NMRA of the Rules of Professional Conduct hereby are APPROVED; IT IS FURTHER ORDERED that the amendments of Rule 16-104 NMRA of the Rules of Professional Conduct shall be effective November 2, 2009; and IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and directed to give notice of the amendments of the above-referenced rule by publishing the same in the Bar Bulletin and NMRA and posting the same on the New Mexico Compilation Commission web site <www.nmcompcomm.us/nmrules>. IT IS SO ORDERED. WITNESS, Honorable Edward L. Chávez,
Chief Justice of the Supreme Court of the State of New Mexico, and the seal of said Court this 24th day of July, 2009.
_________________________________________ Kathleen Jo Gibson, Chief Clerk
of the Supreme Court of the State of New Mexico________________________________16-104. Communication. A. Status of matters. A lawyer shall: (1) promptly inform the client of any decision or cir-cumstance with respect to which the client’s informed consent, as defined in Paragraph E of Terminology of the Rules of Profes-sional Conduct, is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for infor-mation; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. B. Client’s informed decision-making. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. C. Disclosure of professional liability insurance. (1) If, at the time of the client’s formal engagement of a lawyer, the lawyer does not have a professional liability insurance policy with limits of at least one-hundred thousand dollars ($100,000) per claim and three-hundred thousand dollars ($300,000) in the aggregate, the lawyer shall inform the client
in writing using the form of notice prescribed by this rule. If during the course of representation, an insurance policy in effect at the time of the client’s engagement of the lawyer lapses, or is terminated, the lawyer shall provide notice to the client using the form prescribed by this rule. (2) The form of notice and acknowledgment required under this Paragraph shall be:
NOTICE TO CLIENTPursuant to Rule 16-104(C) NMRA of the New Mexico Rules of Professional Conduct, I am required to notify you that [“I” or “this Firm”] [do not][does not][no longer] maintain[s] professional liability malpractice insurance of at least one-hundred thousand dollars ($100,000) per occurrence and three-hundred thousand dollars ($300,000) in the aggregate._________________________________Attorney’s signature
CLIENT ACKNOWLEDGMENTI acknowledge receipt of the notice required by Rule 16-104(C) NMRA of the New Mexico Rules of Professional Conduct that [insert attorney or firm’s name] does not maintain professional liability malpractice insurance of at least one-hundred thousand dollars ($100,000) per occurrence and three-hundred thousand dollars ($300,000) in the aggregate._________________________________Client’s signature
(3) As used in this Paragraph, “lawyer” includes a lawyer provisionally admitted under Rule 24-106 NMRA and Rules 26-101 through 26-106 NMRA; however it does not include a lawyer who is a full-time judge, in-house corporate counsel for a single corporate entity, or a lawyer who practices exclusively as an employee of a governmental agency. (4) A lawyer shall maintain a record of the disclosures made pursuant to this rule for six (6) years after termination of the representation of the client by the lawyer. (5) The minimum limits of insurance specified by this rule include any deductible or self-insured retention, which must be paid as a precondition to the payment of the coverage available under the professional liability insurance policy. (6) A lawyer is in violation of this rule if the lawyer or the firm employing the lawyer maintain a professional liability policy with a deductible or self-insured retention that the lawyer knows or has reason to know cannot be paid by the lawyer or the lawyer’s firm in the event of a loss. [Amended by Supreme Court Order No. 08-8300-29, effective November 3, 2008; by Supreme Court Order No. 09-8300-029, effective November 2, 2009.]
Committee Commentary [1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.Communicating with Client [2] If these rules require that a particular decision about the rep-resentation be made by the client, Subparagraph (1) of Paragraph A of this rule requires that the lawyer promptly consult with and secure the client’s consent prior to taking action unless prior discus-sions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered
Bar Bulletin - August 17, 2009 - Volume 48, No. 33 23
plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Paragraph A of Rule 16-102 NMRA of the Rules of Professional Conduct. [3] Subparagraph (2) of Paragraph A requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client’s objectives. In some situations–depending on both the importance of the action under consideration and the feasibility of consulting with the client–this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client’s behalf. Additionally, Paragraph A(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation. [4] A lawyer’s regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, Paragraph A(4) requires prompt compliance with the request, or if a prompt re-sponse is not feasible, that the lawyer, or a member of the lawyer’s staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged.Explaining Matters [5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the repre-sentation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of com-munication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Paragraph E of Terminology of the Rules of Profes-sional Conduct.
[6] Ordinarily, the information to be provided is that appropri-ate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 16-114 NMRA of the Rules of Professional Conduct. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 16-113 NMRA of the Rules of Professional Conduct. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.Withholding Information [7] In some circumstances, a lawyer may be justified in delay-ing transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or conve-nience of another person. Rules or court orders governing litiga-tion may provide that information supplied to a lawyer may not be disclosed to the client. Paragraph C of Rule 16-304 NMRA of the Rules of Professional Conduct directs compliance with such rules or orders.Disclosure of professional liability insurance [8] Paragraph C of this rule requires a lawyer to disclose to the clients whether the lawyer has professional liability insurance satisfying the minimum limits of coverage set forth in the rule. Subparagraph (3) of Paragraph C defines “lawyer” to include lawyers provisionally admitted under Rule 24-106 NMRA and Rules 26-101 to 26-106 NMRA. Rule 24-106 NMRA applies to out-of-state lawyers who petition to be allowed to appear before the New Mexico courts. Rules 26-101 to 26-106 NMRA apply to foreign legal consultants. Subparagraph (4) of Paragraph C requires a lawyer to maintain a record of disclosures made under this rule for six (6) years after termination of the representation of the client by the lawyer. In this regard, the lawyer should note that trust account records must be kept for five (5) years but the statute of limitations for a breach of contract claim is six (6) years. Subparagraph (5) of Paragraph C provides that the minimum limits of insurance specified by the rule includes any deductible or self-insured retention. In this regard, the use of the term “deductible” includes a claims expense deductible. The professional liability insurance carrier must agree to pay, subject to exclusions set forth in the policy, all amounts that an insured becomes legally obligated to pay in excess of the deductible or self-insured retention shown on the declarations page of the policy.[Adopted by Supreme Court Order 08-8300-26, effective No-vember 3, 2008; amended by Supreme Court Order 09-8300-029, effective November 2, 2009.]
24 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
rules/ordersFrom the New Mexico Supreme Court
http://www.nmcompcomm.us/
prOpOSed revISIONS tO the ruleS Of cIvIl prOcedure fOr the dIStrIct cOurtS
The Rules of Civil Procedure Committee is considering whether to recommend proposed amendments to the Rules of Civil Proce-dure for the District Courts for the Supreme Court’s consideration. If you would like to comment on the proposed amendments set forth below before they are submitted to the Court for final consideration, you may do so by either submitting a comment electronically through the Supreme Court’s web site at http://nmsupremecourt.nmcourts.gov/ or sending your written comments to:
Kathleen J. Gibson, ClerkNew Mexico Supreme CourtP.O. Box 848Santa Fe, New Mexico 87504-0848
Your comments must be received on or before September 8, 2009, to be considered by the Court. Please note that any submitted comments may be posted on the Supreme Court’s web site for public viewing.__________________________________1-096. Challenge of nominating petition. A. Complaint; filing deadline. Court action challenging a nomi-nating petition provided for in the Primary Election Law, Sections 1-8-10 through 1-8-52 NMSA 1978, shall be initiated by filing a complaint no later than ten (10) days after the last day for filing the declaration of candidacy with which the nominating petition was filed. B. Service of process. The complaint shall be served in accordance with Rule 1-004 NMRA upon the proper [In addition to serving process on the] filing officer as provided in Section 1-8-35(B) NMSA 1978[ Comp.] and as defined by Section 1-8-25 NMSA 1978, and the plaintiff shall, immediately after filing the complaint, also deliver a copy of the complaint and notice of hearing to the candidate whose nominat-ing petition is challenged. Delivery shall be effected in the manner provided in Subparagraph (a) of Subparagraph (1) of Paragraph F of Rule 1-004 NMRA. C. Challenges to [;] signatures[ should not be counted]; sepa-rate counts and specificity in complaint required. If claim is made that any signature on [the] a nominating petition should not be counted, the complaint shall; (1) specify in separate counts each signature so challenged;[ and the specific] (2) specify the grounds on which [it] the signature is chal-lenged as required by Paragraphs D and E of this rule; [it shall fur-ther] (3) identify the line number and the page of the nominating petition where each such signature appears; (4) attach a copy of the nominating petition upon which the signature appears; and (5) attach any exhibits required by Paragraph D of this rule. D. Challenges based on duplicate signatures[; signator signed two petitions]. If any signature is challenged on the ground that the person signing has signed more than one nominating petition for the same office, or has signed one petition more than once, the complaint shall attach as an exhibit all nominating petitions containing such signatures and identify the page and line number on each such [other] petition where the person is alleged to have signed[ and shall attach such other nominating petition as an exhibit]. E. Challenges to the qualifications of the[; unqualified] person
[signed] signing the petition. If any signature [or signatures are] is challenged on the ground that the person signing is not [a voter of the state, district, county or area to be represented by the office for which the person seeking the nomination is a candidate or on the ground that the person signing is not of the same political party as the candidate named in the nominating petition] qualified to sign the nominating petition, the complaint shall[, in a separate numbered paragraph, allege that the challenge is based on a diligent search of all registration records of the appropriate county and shall] specify as to each signature: (1) that the qualifications of the person signing the nominating petition are challenged because that person: (a) was not a registered member of the candidate’s politi-cal party ten (10) days prior to the filing of the nominating petition; (b) failed to provide information required by the nominat-ing petition sufficient to determine that the person is a qualified voter of the state, district, county or area to be represented by the office for which the person seeking the nomination is a candidate; (c) is not of the same political party as the candidate named in the nominating petition as shown by the signer’s certificate of registration; or (d) is not the person whose name appears on the nominat-ing petition; (2) the voter registration records upon which the challenge relies [the county in which the search was made]; ([2]3) the name and address of each person [making the] who searched the voter registration records upon which the challenge relies; ([3]4) the date on which each search was made; and ([4]5) any variations in names, spelling or addresses for which search was made. F. Waiver. Objection to counting a signature and any ground for rejecting a signature shall be conclusively waived unless set out in the manner above provided within ten (10) days after the last day for filing the challenged nominating petition. G. Disqualification of judge. The provisions of Paragraph C of Rule 1-088.1 NMRA notwithstanding, the plaintiff may exercise the statutory right to excuse the district judge assigned to the case by fil-ing a peremptory election to excuse on the same day the complaint is filed. The plaintiff shall serve notice of the peremptory election to excuse at the same time that the complaint is served and delivered in accordance with Paragraph B of this rule. If more than one plaintiff is named in the complaint, the plaintiffs only may exercise one collec-tive peremptory election to excuse the district judge. The candidate whose nominating petition is challenged may file a peremptory elec-tion to excuse the district judge within two (2) days after delivery of the complaint. In all other respects, Rule 1-088.1 NMRA governs the exercise of peremptory elections to excuse the district judge. If there is an excusal for cause or a recusal, the chief justice shall reassign the case to another judge, justice or judge pro tempore to hear all further proceedings. H, Hearing and decision. Within ten (10) days after the complaint is filed, the district court shall hold a hearing and render a decision. I. Appeal. The decision of the district court may be appealed to the Supreme Court in accordance with Rule 12-603 NMRA. [As amended by Supreme Court Order ________________, effective ______________] Committee commentary. – The time periods in this rule are to be computed under Rule 1-006 NMRA. [Commentary, adopted by Supreme Court Order ___________, effective ______.]
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTYJERRY H. RITTER, JR., District Judge
opinion
cynthia a. fry, chief Judge
{1} Defendant appeals from his convic-tion for aggravated stalking in violation of NMSA 1978, Section 30-3A-3.1 (1997). Defendant argues that his conduct was insufficient to support a charge of aggra-vated stalking, that testimony regarding statements he made to the police prior to and after his arrest should have been suppressed because he was not read his Miranda rights, and that the trial court erro-neously admitted evidence that Defendant had attempted to plead guilty at his first appearance. For the following reasons, we affirm Defendant’s conviction. I. BACKGROUND{2} Defendant and Tamisha, the victim
GARY K. KINGAttorney General
Santa Fe, New MexicoJAMES W. GRAYSON
Assistant Attorney GeneralAlbuquerque, New Mexico
for Appellee
HUGH W. DANGLERChief Public Defender
MARY A. BARKETAssistant Appellate Defender
Santa Fe, New Mexicofor Appellant
of Defendant’s stalking, met online. After having regular telephone conversations over a period of time, Defendant traveled from Little Rock, Arkansas, to Alamog-ordo, New Mexico, to meet Tamisha in person. After initially staying in a motel room that Tamisha had rented, Defendant stayed for a few weeks at an apartment be-ing rented by Tamisha’s friend Samantha. Although the relationship between Tamisha and Defendant was initially friendly, about three weeks after Defendant had arrived in Alamogordo, Tamisha became concerned that Defendant was more serious about the relationship than she was. Tamisha decided that Defendant needed to move out of Samantha’s apartment, so she packed up Defendant’s belongings and left them with one of Defendant’s co-workers.{3} Later that evening, Defendant showed
up at Samantha’s apartment looking for Tamisha. Samantha told Defendant that Tamisha was not there and, according to the girls’ testimony, Defendant pretended to leave. As soon as Tamisha started to talk, however, Defendant began yelling from outside that he knew she was in there and started pounding on the door because, according to his testimony, he was enraged that Samantha had lied to him and that Tamisha was hiding from him. After curs-ing and shouting for Tamisha to come out of the apartment to no avail, Defendant threatened to damage Tamisha’s and Sa-mantha’s cars that were parked in front of the apartment. The girls immediately called the police and ran outside to ensure that their vehicles were not damaged.{4} Following this incident, Tamisha and Defendant reconciled for a short time. However, the relationship deteriorated quickly after Tamisha went on a weekend trip with some of her friends. Defendant testified that while Tamisha was gone, he had a vision while staring at a blank televi-sion screen in which he saw Tamisha being intimate with another man. When Tamisha returned to Alamogordo, Defendant went to Tamisha’s apartment and accused her of cheating on him while she was out of town. Tamisha told Defendant that they were just friends and that she had in fact been with someone else over the weekend. Defendant became enraged by this comment and started to move toward Tamisha and her friend Hope in a threatening manner. In addition, Defendant stated, “[if] I see [you and your new boyfriend] together, I’m kill-ing both of you.” Fearing for their safety, Tamisha and Hope pushed Defendant out of the apartment and called the police. By the time the police arrived, Defendant had left the scene. The responding officer advised Tamisha that the best way to stop Defendant from threatening her was to ob-tain a temporary restraining order (TRO). Because of the threats Defendant had made to kill her and her new boyfriend, the threat he had made to damage her car after she took his belongings to his workplace, and because Defendant had left a number of threatening letters in Tamisha’s mailbox and had made a threatening phone call to Tamisha’s father, Tamisha obtained a TRO the following day.{5} On the day Tamisha obtained the TRO, but before Defendant was served, Tamisha
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pulled into the parking lot of her apartment complex and saw Defendant sitting in a chair holding “Ninja-style” knives that he had recently purchased. Fearing for her safety, Tamisha quickly backed out of the parking lot, called 911, and circled the block until the police arrived. When the police arrived and began talking to Defendant, Defendant stated that he was there to “put the fear of God” into Tamisha for what she had done to him and that he could accomplish this in three ways: by letting it go, by calling his “homies” from Arkansas to help him out, or by taking care of it himself using the Ninja skills he had studied in Japan and intimidation methods he had learned as an ex-felon. While De-fendant was talking to Officer Guinn, the officer who had responded to Tamisha’s 911 call, another officer arrived and served Defendant with the TRO Tamisha had obtained earlier in the day. Officer Guinn explained the seriousness of the TRO to Defendant, and Defendant acknowledged that he understood the consequences that would arise from a violation of the order. Before Officer Guinn took Defendant back to his residence, however, Defendant stated that a piece of paper was not going to stop him from inflicting pain and fear on Tamisha.{6} Following this incident, Tamisha, who worked a night shift, went to work. When she returned home the next morning, she found a copy of the TRO in her door with a handwritten message stating, “It ain’t over, [b]itch, I want to see your man[;] [w]here he at?” Tamisha recognized the handwrit-ing as Defendant’s, immediately became concerned for her safety, and called the police. Officer Jackson responded to the call and began investigating the TRO violation. Officer Jackson later met with Officer Guinn, and the two officers went to Defendant’s residence to determine if he had written the threatening message on the TRO. After a brief investigation, Defendant was arrested for violating the TRO. After his arrest, however, the officers determined that Defendant had violated Section 30-3A-3.1, and the State charged Defendant with aggravated stalking due to the pattern of threatening behavior he had engaged in and his threatening conduct in violation of the TRO.II. DISCUSSIONA. The Aggravated Stalking Statute{7} At trial, after the State rested its case, Defendant argued that the State had pre-sented insufficient evidence to support a conviction for aggravated stalking because
he had engaged in only one instance of threatening conduct after he was served with the TRO, and Section 30-3A-3.1 requires that there be a pattern of conduct after the TRO is served. The trial court disagreed and concluded that Section 30-3A-3.1 requires only one threatening act following the issuance of a TRO. On ap-peal, Defendant makes the same argument that he made in the trial court.1. Standard of Review{8} Interpretation of a statute is a question of law that we review de novo. State v. Davis, 2007-NMCA-022, ¶ 6, 141 N.M. 205, 152 P.3d 848. “Our ultimate goal in statutory construction is to ascertain and give effect to the intent of the Legislature.” State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022 (internal quota-tion marks and citation omitted). To reach this goal, we begin “by looking first to the words chosen by the Legislature and the plain meaning of the Legislature’s lan-guage.” State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064 (internal quotation marks and citation omitted). “When a statute contains language which is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.” State v. Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233 (internal quotation marks and citation omitted).2. The Aggravated Stalking Statute
Requires Only One Act in Further-ance of a Pattern of Stalking
{9} Defendant was charged with and convicted of aggravated stalking, a fourth degree felony, pursuant to the Harassment and Stalking Act (the Act). NMSA 1978, §§ 30-3A-1 to -4 (1997).
A. Aggravated stalking consists of stalking perpetrated by a person:
(1) who knowingly violates a permanent or temporary order of protection issued by a court, ex-cept that mutual violations of such orders may constitute a defense to aggravated stalking;
(2) in violation of a court order setting conditions of release and bond;
(3) when the person is in posses-sion of a deadly weapon; or
(4) when the victim is less than sixteen years of age.
§ 30-3A-3.1(A)(1)-(4). Stalking is defined as
knowingly pursuing a pattern of conduct that would cause a rea-sonable person to feel frightened,
intimidated or threatened. The alleged stalker must intend to place another person in reason-able apprehension of death, bodily harm, sexual assault, confinement or restraint or the alleged stalker must intend to cause a reasonable person to fear for his safety or the safety of a household member. In furtherance of the stalking, the al-leged stalker must commit one or more of the following acts on more than one occasion: (1) following another person,
in a place other than the resi-dence of the alleged stalker;
(2) placing another person under surveillance by being present outside that person’s residence, school, workplace or motor vehicle or any other place frequented by that person, other than the residence of the alleged stalker; or
(3) harassing another person.§ 30-3A-3(A)(1)-(3). Defendant’s ag-gravated stalking conviction was based on his violation of Section 30-3A-3.1(A)(1), stalking perpetrated by a person who knowingly violates a temporary order of protection. {10} Our Legislature first enacted the Act in 1993. 1993 N.M. Laws, ch. 86, § 2. The 1993 Act criminalized stalking but made the crime a misdemeanor. Id. It was only when an offender was convicted of a third stalking offense that the crime esca-lated to a fourth degree felony. 1993 N.M. Laws, ch. 86, § 3(C). In 1997, the Legisla-ture repealed the 1993 Act and enacted the current Act. 1997 N.M. Laws, ch. 10. The new Act made a second and subsequent conviction a fourth degree felony and cre-ated the new crime of aggravated stalking, also a fourth degree felony. § 30-3A-3(C). Thus, the modifications imposed a harsher punishment upon those offenders who posed a significant danger to their victims because of repeat offenses, the age of the victim, the presence of a deadly weapon, or the offender’s disregard of a court order or a court sanction. See § 30-3A-3.1. By changing the penalty for an offender’s second conviction from a misdemeanor to a felony, for example, the Legislature ensured that an individual who has already been convicted of stalking receives a harsher punishment when he or she ignores the sanctions imposed by the first offense and continues to stalk a victim. Similarly, the Legislature imposed a harsher penalty
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when a stalker violates a TRO or a court order because a stalker who ignores such an order ostensibly poses a more serious threat to his or her victim. Having already been warned that his or her conduct is prohibited, an individual who continues to stalk disregards the rule of law and poses a significant threat to the safety of his or her victim. {11} Despite the Legislature’s intent to provide greater protection to stalking vic-tims who have obtained a TRO, Defendant argues that the plain language of the statute requires the State to prove that there was a pattern of threatening conduct after the TRO was served. Under Defendant’s inter-pretation of the statute, an individual would be charged with misdemeanor stalking for any threatening conduct that occurred prior to the issuance of a TRO and could only be charged with aggravated stalking if a new pattern of conduct occurred after the TRO has been issued. In support of this conten-tion, Defendant argues that because there is a separate offense for a single violation of a protective order, see NMSA 1978, § 40-13-6(F) (2008) (establishing that a single violation of a protective order is a misde-meanor offense), the Legislature must have intended that there be multiple violations of a protective order before an aggravated stalking charge can be brought.{12} We are not persuaded. As the State points out, it is possible to violate a restraining order in a manner that would not satisfy the requirements of the stalk-ing statute. If, for example, Defendant had violated the TRO by telephoning Tamisha in a non-threatening manner, he could have been charged with violating the restraining order but not with stalking because the definition of stalking requires behavior that causes a reasonable person to feel frightened, intimidated, or threatened, and the stalker must intend to make the victim fear for his or her safety or the safety of a family member. § 30-3A-3. Where, as here, the violation of the restraining order is done in a threatening manner, is intended to place the victim in fear, and is a part of an established pattern of stalking behavior, then aggravated stalking charges may be proper.{13} In addition, under Defendant’s interpretation of the aggravated stalking statute, an individual who engages in a pattern of threatening behavior and then is restrained by a TRO could only be charged with misdemeanor stalking for the pattern of conduct that occurred prior to the TRO, a misdemeanor violation of the TRO for the
first, second, and possibly third violations of the TRO, and then, only if the TRO violations occurred with enough frequency to be considered a pattern, a charge of ag-gravated stalking could be brought. As the State points out, this interpretation would create an arbitrary break in an otherwise continuous pattern of threatening behavior and would frustrate the legislative purpose of providing greater protection to victims who obtain TROs against their stalkers. Nothing in Section 30-3A-3.1 supports Defendant’s interpretation.{14} When the statute is considered as a whole and Defendant’s interpretation is applied to the other aggravating factors, the incongruity of Defendant’s argument becomes apparent. The third aggravating factor in the statute is “stalking perpetrated by a person . . . when the person is in pos-session of a deadly weapon.” § 30-3A-3.1. We have interpreted this to require not only that the stalker be in possession of a deadly weapon, but also that the stalker intended to use the deadly weapon. See State v. Anderson, 2001-NMCA-027, ¶ 32, 130 N.M. 295, 24 P.3d 327. Under Defendant’s interpretation of the statute, an individual could not be charged with aggravated stalk-ing unless he or she engaged in stalking behavior while carrying a deadly weapon with the intent to use it against the victim on a sufficient number of occasions to establish a pattern of conduct. The Leg-islature could not have intended to allow a stalker to repeatedly subject a victim to such unreasonable risk. Thus, while a pat-tern of conduct is required to establish that stalking has occurred, the crime charged may be escalated to aggravated stalking as soon as one of the aggravating factors occurs. {15} The out-of-state authority cited by Defendant does not persuade us to reach a different conclusion. Vazquez v. State, 953 So. 2d 569 (Fla. Dist. Ct. App. 2007), is in-applicable to our analysis because the plain language of Florida’s aggravated stalking statute requires that an offender repeatedly engage in conduct in violation of a court order. Fla. Stat. Ann. § 784.048(4) (West 2008) (providing harsher punishment for any person who, “after an injunction for protection . . . repeatedly follows, harasses, or cyberstalks another person” (emphasis added)). In the California case Defendant cites, People v. McClelland, 49 Cal. Rptr. 2d 587, 590-91 (Ct. App. 1996), the de-fendant had made numerous threats to his victim after being served with a TRO, and the court therefore did not address the
issue before us today. Thus, McClelland provides no guidance in our resolution of this case. See Fernandez v. Farmers Ins. Co., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (noting that cases are not authority for propositions not considered). {16} It is undisputed that Defendant engaged in a pattern of harassing conduct sufficient to charge him with stalking and that Defendant made an additional threat to Tamisha after being served with a TRO that specifically prohibited the conduct in which he had been engaging. We, there-fore, affirm the trial court’s determination that the Act applied to Defendant’s con-duct. Because of our holding, we do not address Defendant’s argument that under his interpretation of the statute there was insufficient conduct following the issu-ance of the restraining order to support his conviction.3. The Aggravated Stalking Statute is Not Unconstitutionally Vague{17} Defendant next argues that our in-terpretation of the aggravated stalking stat-ute renders the statute unconstitutionally vague. We review a vagueness challenge de novo “in light of the facts of the case and the conduct which is prohibited by the statute.” State v. Duran, 1998-NMCA-153, ¶ 31, 126 N.M. 60, 966 P.2d 768. Defendant “[can]not succeed if the statute clearly ap-plied to his conduct” and, because there is a strong presumption of constitutional-ity underlying each legislative enactment, Defendant “has the burden of proving [the] statute is unconstitutional beyond all reasonable doubt.” State v. Laguna, 1999-NMCA-152, ¶ 24, 128 N.M. 345, 992 P.2d 896 (citation omitted).{18} There are two ways in which De-fendant can meet this burden. He can either demonstrate that the statute fails to “allow[] individuals of ordinary intelligence a fair opportunity to determine whether their con-duct is prohibited,” or he can demonstrate that the “statute permits police officers, prosecutors, judges, or juries to engage in arbitrary and discriminatory enforcement of the statute, which occurs because the statute has no standards or guidelines and therefore allows, if not encourages, subjec-tive and ad hoc application.” Id. ¶¶ 25-26. Defendant argues that our interpretation of the statute is unconstitutional under both prongs of the vagueness test.{19} Defendant first argues that because the majority of his actions constituting a pattern of stalking conduct occurred prior to the issuance of the TRO, he was not on notice that his actions might constitute an
28 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
offense as serious as a felony. Defendant’s argument is without merit. A person of ordinary intelligence reading the Act can easily understand that engaging in a pat-tern of threatening conduct may result in a charge of misdemeanor stalking under Sec-tion 30-3A-3. Such a person reading Sec-tion 30-3A-3.1 would further understand that continuing such conduct after being ordered by a court to stay away from the victim may result in a charge of aggravated stalking and increased criminal penalties. {20} Defendant next argues that the ag-gravated stalking statute is unconstitution-ally vague because it can be applied in an ad hoc, abitrary manner. That the State had some discretion to charge Defendant with the felony crime he committed or a lesser offense such as misdemeanor stalking or a mere violation of the restraining order does not render the statute unconstitutionally vague. In order to fall within the arbitrary and discriminatory prong of the vagueness test, the statute must have “no standards or guidelines and therefore allow[], if not encourage[], subjective and ad hoc appli-cation.” Laguna, 1999-NMCA-152, ¶ 26. In Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971), for example, the United States Supreme Court held that a statute was unconstitutionally vague because it criminalized conduct that “annoyed” police officers or passers-by in Cincinnati. The Court held that not only did this statute fail to put individuals on notice of what conduct would annoy a police officer, but it also gave the police arbitrary discretion to charge an individual with a violation of the statute using a vague and subjective standard. See id.{21} Unlike the arbitrary discretion given to police officers and prosecutors condemned in Coates, the aggravated stalk-ing statute has clear guidelines regarding what circumstances will escalate the mis-demeanor crime to a felony offense. The prosecutor’s decision to charge Defendant with aggravated stalking did not require any arbitrary discretion. Instead, the prosecu-tor applied the law as stated in the Act to the conduct of Defendant and determined that Defendant had engaged in a pattern of threatening behavior directed at Tamisha, had continued that threatening conduct after being ordered by the court to stop, and had, therefore, committed aggravated stalking.B. Alleged Miranda Violations{22} Defendant next argues that certain statements he made to the police should have been suppressed because he was not
given Miranda warnings before he made the statements. On the night that Defendant was arrested, Officer Guinn and Officer Jackson went to look for Defendant at his apartment but were unable to locate him. Because they also needed to issue a cita-tion to one of Defendant’s roommates for marijuana possession, however, the two officers remained in the area for about an hour discussing the situation, issuing the citations, and filling out evidence receipts. The two police vehicles were parked on the street about fifty yards from Defendant’s apartment. While the officers were parked, Defendant arrived in a vehicle and stopped. Defendant got out of that vehicle, walked the fifty yards to the police officers, and yelled out that he understood that they were looking for him. The officers began to talk with Defendant about the reason they were looking for him, and Defendant made a number of incriminating statements regarding the TRO violation and the threats he had made to Tamisha. Defendant made an additional incriminating statement after his arrest while he was being booked. It is undisputed that Defendant was not read his Miranda rights at any time during his encounters with the officers.{23} Miranda warnings are intended to prevent situations where “the cir-cumstances surrounding the asking of a question by law enforcement are so inher-ently coercive that any answer” given by a defendant is deemed to be compelled and not the result of the defendant’s free will. State v. Javier M., 2001-NMSC-030, ¶ 14, 131 N.M. 1, 33 P.3d 1. “The standard of review for suppression rulings is whether the law was correctly applied to the facts, viewing them in a manner most favorable to the prevailing party.” State v. Harbison, 2007-NMSC-016, ¶ 8, 141 N.M. 392, 156 P.3d 30 (internal quotation marks and cita-tion omitted). While we apply a deferential standard to the trial court’s findings of fact, see State v. Lopez, 2005-NMSC-018, ¶ 9, 138 N.M. 9, 116 P.3d 80, “[d]etermining whether or not a police interview consti-tutes a custodial interrogation requires the application of law to the facts,” and we, therefore, apply de novo review of the trial court’s ruling. State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442.{24} The suppression of an incriminat-ing statement made by a defendant to a police officer “is only required when the statements are the product of a custodial interrogation.” State v. Fekete, 120 N.M. 290, 300, 901 P.2d 708, 718 (1995). Thus, two separate circumstances must exist be-
fore Miranda warnings are required—the defendant must be in custody and there must be an interrogation. {25} Defendant sought to suppress statements he made on two separate oc-casions, each requiring us to analyze different elements of the custodial inter-rogation requirement. The first set of state-ments Defendant sought to suppress was made before he was arrested and clearly involved interrogation, but the trial court determined that Defendant was not in custody. The second statement was made after Defendant’s arrest while he was clearly in custody, but the trial court held that Defendant’s statement was not made in response to an interrogation. Because of the distinct factual differences between the two sets of statements Defendant made, we address them separately.1. Pre-Arrest Statements{26} There is no dispute that Officers Guinn and Jackson questioned Defendant outside of his apartment prior to his ar-rest. Thus, our inquiry focuses solely on whether Defendant was in custody such that Miranda warnings were required prior to his questioning. Whether or not an individual is in custody depends on “how a reasonable man in the suspect’s position would have understood his situ-ation,” Fekete, 120 N.M. at 300, 901 P.2d at 718 (internal quotation marks and cita-tion omitted), and not on the “subjective perception of any of the members to the interview.” Nieto, 2000-NMSC-031, ¶ 20. An interview is custodial and, therefore, subject to mandatory Miranda warnings if there is a “formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Id. (internal quotation marks and citations omitted). However, the questioning of an individual during an investigatory deten-tion instigated by an officer’s reasonable belief that the individual has engaged in criminal activity is generally not consid-ered a custodial interrogation subject to Miranda requirements. Javier M., 2001-NMSC-030, ¶19. But see State v. Wilson, 2007-NMCA-111, ¶¶ 18, 19, 142 N.M. 737, 169 P.3d 1184 (noting that in some situations, such as when an officer uses handcuffs, puts the suspect in a police vehicle, or uses force, an investigatory detention can become the equivalent of custody such that the Miranda warnings are required). In addition, the fact that an officer has focused his investigation on the defendant at the time of questioning does not necessitate Miranda warnings. State v.
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Swise, 100 N.M. 256, 258, 669 P.2d 732, 734 (1983).{27} Determining whether an individual is in custody for purposes of Miranda requires a fact-specific analysis of the circumstances in which the questioning took place. In State v. Munoz, for example, our Supreme Court held that a suspect was not in custody where he was questioned for approximately one hour and forty minutes by FBI agents in the back of an FBI vehicle parked a mile or so from the suspect’s house. 1998-NMSC-048, ¶¶ 39, 42-43, 126 N.M. 535, 972 P.2d 847. The individual was a prime suspect in a murder investigation and the agents had picked him up at his home and transported him to the location where he was questioned and ultimately confessed to stabbing his victim multiple times in the neck. Id. ¶¶ 3-6, 11. Despite the length and location of the questioning, the Court explained that there was no evidence that the suspect’s freedom had been restrained in any way that could be associated with a formal arrest. Id. ¶ 43. He had voluntarily accom-panied the agents after being told that he did not have to go with them, he was not handcuffed or searched, the car doors were not locked during the questioning, and the car was parked along a busy street during daylight. Id. ¶¶ 43-44.{28} In contrast, this Court held that a suspect was in custody despite not be-ing formally under arrest where a police officer ordered the suspect out of his vehicle, forcibly placed handcuffs on him in a manner that caused him to drop to his knees, and then questioned the suspect in the back of the officer’s vehicle. Wilson, 2007-NMCA-111, ¶ 35. We noted that a reasonable person in the suspect’s posi-tion would have believed “that he was restrained to the degree associated with a formal arrest.” Id.{29} In the present case, we cannot conclude that a reasonable person in De-fendant’s position would have believed that he was subject to the degree of restraint associated with a formal arrest. While Officers Guinn and Jackson were parked on the street in front of Defen-dant’s apartment, Defendant pulled up in a vehicle and, without any provocation, got out of the vehicle and voluntarily walked at least fifty yards to the location of the officers. He then called out that he heard they were looking for him and ap-proached the officers. Because of Officer Guinn’s knowledge that Defendant carried Ninja knives, he frisked Defendant for
safety purposes, but Defendant was not re-strained in any manner. Defendant stayed a “safe distance” away from the officers at all times, and the officers questioned him for approximately twenty minutes.{30} The circumstances of Defendant’s questioning are similar to but far less “custodial” than the facts our Supreme Court found did not constitute custody in Munoz. In addition, unlike the defendant in Wilson, who was forcibly handcuffed and interrogated in the back of police cruiser, the officers did not use any force on Defendant nor did they handcuff him during the questioning. Thus, we conclude that a reasonable person in Defendant’s position would not have believed that he was in custody.{31} Defendant contends that because he had been warned the night before that he would be arrested if he violated the TRO, he knew that his arrest was imminent and was therefore in custody when the officers began to question him about the TRO violation. Thus, Defendant argues that because he broke the law and because the officers questioned him about that violation, he was in custody for purposes of a Miranda analysis. This argument is without merit. We do not con-sider the subjective beliefs of the parties to the interview. Nieto, 2000-NMSC-031, ¶ 20. Thus, any belief that Defendant may have had regarding whether he would be arrested does not affect our conclusion that Defendant was not in custody and that Miranda warnings were not required.2. Post-Arrest Statement{32} Following his arrest, Defendant was transported to the police station for booking. During booking, Defendant became extremely upset and agitated and started cursing about Tamisha and what she had done to him. Officer Jackson told Defendant, “You need to calm down, you need to forget about her, you need to let her go.” In response to this statement, Defendant told Officer Jackson, “You’re right, I should just let her go . . . because if I stick around, the next time you’ll be fingerprinting me, it’ll be for murder.” Because Defendant was being booked into jail at the time he made this statement, there is no dispute that he was in custody. However, because Officer Jackson did not ask Defendant a question, the parties dis-agree as to whether Defendant was being interrogated at the time that he made the statement.{33} Because the primary purpose of Miranda warnings is to prevent the
introduction of compelled, involuntary incriminating statements, interrogation “must reflect a measure of compulsion above and beyond that inherent in cus-tody itself,” and a statement given freely and voluntarily without any compelling influences does not violate Miranda. Rhode Island v. Innis, 446 U.S. 291, 299-300 (1980). An “[i]nterrogation occurs when an officer subjects an individual to questioning or circumstances which the officer knows or should know are reasonably likely to elicit incriminating responses.” Fekete, 120 N.M. at 300, 901 P.2d at 718 (internal quotation marks and citation omitted). Miranda does not apply “in those situations where [a defendant] volunteers statements” either by making a statement “which the police did not at-tempt to elicit” or by making a statement that is “unresponsive to the questions asked.” Id.{34} Defendant argues that Officer Jackson knew that Defendant would make an incriminating statement when he told Defendant to forget about Tamisha because Officer Jackson had told Defen-dant the same thing prior to the arrest and Defendant had made similar incriminating statements. Thus, Defendant argues that “Officer Jackson was aware that almost any statement to [Defendant] about his relationship with [Tamisha] would elicit a veritable wave of incriminating informa-tion.”{35} We assume, without deciding, that because Defendant had previously made incriminating statements when he was told to forget about Tamisha, Officer Jackson should have known that telling Defendant to calm down would elicit an incriminat-ing response. Under this assumption, the trial court erred in allowing the testimony regarding Defendant’s statement that he would be fingerprinted for murder if he did not forget about Tamisha. However, based on the evidence presented at trial, this error was harmless. “An error is harm-less if the [s]tate can establish . . . beyond a reasonable doubt” that there is no rea-sonable possibility that the objectionable evidence might have contributed to the defendant’s conviction. State v. Walters, 2007-NMSC-050, ¶ 25, 142 N.M. 644, 168 P.3d 1068 (internal quotation marks and citations omitted). In determining whether the state has met this burden, we examine several factors including “the im-portance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence
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of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution’s case.” Id. ¶ 26 (internal quotation marks and citation omitted).{36} Prior to the testimony regarding Defendant’s statement that he would be fingerprinted for murder, a substantial amount of incriminating evidence had already been presented. Tamisha and her friends testified that Defendant had threatened Tamisha and her new boyfriend and that he had engaged in a pattern of threatening conduct directed at Tamisha. Officer Guinn testified that Defendant had said he would make Tamisha feel his pain and that he was armed with Ninja-style knives and had trained extensively in Japan as a Ninja. Officer Jackson testi-fied that Defendant had threatened that he could “take care” of Tamisha by calling his homies or by taking care of her him-self using his Ninja training. In addition, Defendant himself admitted to all of the essential elements of aggravated stalking. He did not dispute that he had engaged in a pattern of threatening conduct prior to the issuance of the TRO, nor did he dis-pute that he wrote a threatening message on his copy of the TRO and then placed it in Tamisha’s door. Instead, Defendant merely argued that all of his threats were empty and that he never intended to follow through with any of them. Thus, Defendant’s statement that he would be booked for murder was merely a cumu-lative statement that repeated his earlier undisputed threats to harm Tamisha. See Fekete, 120 N.M. at 301, 901 P.2d at 719 (noting that even if an officer’s question was an interrogation, the statements made by the defendant merely repeated what he had stated earlier and their admission was therefore harmless error).{37} We, therefore, cannot conclude that Defendant’s statement influenced the jury’s decision to convict Defendant for aggravated stalking. All of the evidence supporting Defendant’s conviction was uncontested and had already been estab-lished before the statement was errone-ously admitted. Defendant was charged and convicted of aggravated stalking, not attempted murder, and he never disputed that he made the threats that formed the basis of his conviction. Thus, we hold that even if the admission of Defendant’s post-arrest statement was error, the error was harmless.
C. Rule 11-410 NMRA Bars the Admis-sion of Evidence That a Defendant Pleaded Guilty or Attempted to Plead Guilty but Does Not Require Reversal
{38} At his arraignment, Defendant attempted to plead guilty to the charges against him and told the magistrate court that everything Tamisha said about him was true. After Defendant made these state-ments, the magistrate court informed him that he was being charged with a felony and that the court did not have jurisdiction to accept a guilty plea in a felony case. At trial, the State called a witness who had been present at Defendant’s arraignment and who testified regarding the statements Defendant made when he attempted to plead guilty. Defendant objected to the admission of this evidence on the grounds that it violated his due process rights, that the plea was involuntary, and that such evidence was just generally inadmissible.{39} Defendant now argues that the admission of his attempt to plead guilty violated Rule 11-410, which provides that
[e]vidence of a plea of guilty or an admission in a children’s court proceeding, later withdrawn, or a plea of no contest, or of an offer to plead guilty or no contest to the crime charged or any other crime, or of statements made in connec-tion with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.
Because Defendant raises Rule 11-410 for the first time on appeal, the State argues that Defendant failed to adequately preserve the issue. We disagree. Although none of defense counsel’s objections specifically referenced Rule 11-410, defense counsel alerted the court on multiple occasions to the general notion that guilty pleas are inadmissible. See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (explaining that in order for an issue to be preserved for appeal, the defendant must make a timely objection that specifi-cally apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon). We, therefore, address the merits of Defendant’s argument. See State v. Anderson, 116 N.M. 599, 601, 866 P.2d 327, 329 (1993) (noting that Rule 11-410 issue was preserved for appellate review where defense counsel did not specify the rule in his objection because the trial “court’s comments indicate[d] that it was
adequately apprised of the application of the rule”).{40} Despite the language of Rule 11-410 barring evidence of a guilty plea, the State argues that evidence of Defendant’s attempt to plead guilty and the related state-ments are admissible under our Supreme Court’s decision in Anderson. There, the Court held that Rule 11-410 applies only if a suspect “relied on the rule in deciding to break silence, because the rule encourages cooperation only if the defendant relied on it.” Anderson, 116 N.M. at 602-03, 866 P.2d at 330-31. While Anderson would seem to suggest that the evidence of Defendant’s attempt to plead guilty was admissible since he did not rely on the rule when he made his plea, the State’s reliance on this case is misplaced.{41} Rule 11-410 applies to two separate and distinct types of evidence: (1) evidence of a plea of guilty that is later withdrawn and statements made in connection with the plea, and (2) evidence of an offer to plead guilty and statements made in connection with the offer. Anderson dealt exclusively with the second type of evidence made inadmissible by Rule 11-410, offers to plead guilty. Anderson did not consider the admissibility of an actual guilty plea and statements made in connection with that plea. Here we are concerned only with the first type of guilty plea evidence covered by Rule 11-410, the actual entry of a guilty plea. Thus, Anderson does not apply to our analysis of Defendant’s appeal.{42} Under Rule 11-410, “[i]f a plea is never entered or entered and then with-drawn, at trial it is to appear as though the earlier plea . . . never took place. The slate is wiped clean once plea negotiations fail or the defendant withdraws his plea.” State v. Trujillo, 93 N.M. 724, 727, 605 P.2d 232, 235 (1980). When a plea is entered and then withdrawn, Rule 11-410 makes any evidence of that plea inadmissible at trial. See Standen v. State, 710 P.2d 718, 720 (Nev. 1985) (noting that a withdrawn guilty plea is “deemed never to have existed and should not be used as evidence”); Toth v. State, 297 So. 2d 53, 53 (Fla. Dist. Ct. App. 1974) (holding that a rule similar to Rule 11-410 absolutely bars the admission of ev-idence that a defendant pleaded guilty and then withdrew the plea). While Defendant did not formally enter and then withdraw his guilty plea, his attempt to enter a guilty plea and the magistrate’s rejection of that plea for jurisdictional reasons constituted the functional equivalent of a formal plea entry and withdrawal for purposes of Rule
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11-410. Defendant believed that he was formally pleading guilty to the charges against him. Had the court had jurisdic-tion to accept the plea, Defendant would have had an opportunity to withdraw the plea, thus making Rule 11-410 applicable. Thus, Rule 11-410 barred the admission of evidence that Defendant had attempted to plead guilty, and the trial court erred by admitting the testimony.{43} However, we conclude that the error was harmless. As the dissent points out, evidence of a defendant’s attempt to plead guilty is ordinarily inadmissible because, among other reasons, it may compel a defendant to take the stand to explain to the jury why he or she initially pleaded guilty and then later withdrew the plea and decided to challenge the charges at trial. People v. Spitaleri, 173 N.E.2d 35, 37 (N.Y. 1961) (noting that evidence of a withdrawn guilty plea “in effect forced [the defendant] to take the stand”). Furthermore, admission of such evidence can be highly prejudicial because “[i]t is also difficult to conceive a disclosure more apt to influence a jury than the information that the accused had at one time [pleaded] guilty to the com-mission of the crime with which he stands charged.” State v. Boone, 327 A.2d 661, 666 (N.J. 1974) (internal quotation marks and citation omitted). While we recognize the prejudicial effect that the admission of a defendant’s attempt to plead guilty can have on a criminal trial, we disagree with the dissent’s contention that “reversible error is committed regardless of what the remaining evidence in the case may be” and that a violation of Rule 11-410 is not subject to a harmless error test.{44} While the dissent correctly notes that the United States Supreme Court did not apply a harmless error test in Kercheval v. United States, 274 U.S. 220, 225 (1927), when it ruled that evidence of an attempt to plead guilty is inadmissible, we do not believe that the Court’s failure to discuss the sufficiency of the remaining evidence to sustain the conviction indicates that the Court intended to prohibit the use of a harmless error test every time evidence of a guilty plea is improperly admitted. See Fernandez v. Farmers Ins. Co. of Ari-zona, 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (noting that cases are not authority for propositions not considered). In fact, contrary to the dissent’s argument that a harmless error test cannot be applied under these circumstances, a number of other jurisdictions that have considered this issue have applied a harmless error test to the
erroneous admission of guilty pleas. See, e.g, United States v. Acosta-Ballardo, 8 F.3d 1532, 1536 (10th Cir. 1993) (applying harmless error test to Rule 410 violation and concluding that error was harmless with respect to the defendant’s conviction for a charge he admitted to in his testimony but reversible with respect to a charge that required the jury to weigh the credibility of the witnesses); United States v. Tesack, 538 F.2d 1068, 1070 (4th Cir. 1976) (hold-ing that due to the strength of the evidence against the defendant, “[i]f there was error in [the admission of the withdrawn guilty plea], we find it entirely harmless”); Thes-sen v. State, 454 P.2d 341, 350 (Alaska 1969) (concluding beyond a reasonable doubt that admission of withdrawn guilty plea did not influence jury), superseded by statute as stated in State v. Chaney, 477 P.2d 441 (Alaska 1970); State v. Thomson, 278 P.2d 142, 148 (Or. 1954) (en banc) (applying harmless error test to admission of guilty plea evidence and concluding that due to conflicting evidence, reversal was required); People v. Scheller, 39 Cal. Rptr. 3d 447, 455 (Ct. App. 2006) (holding that erroneous admission of statements made in reliance on guilty plea was subject to the Chapman v. California, 386 U.S. 18 (1967) harmless error test); State v. Simonson, 732 P.2d 689, 696 (Idaho Ct. App. 1987) (applying harmless error test to erroneous admission of evidence that the defendant had pleaded guilty and concluding that er-ror was not harmless due to circumstantial nature of the prosecution’s case); United States v. Doamarel, 567 F. Supp. 254, 262-63 (D. Del. 1983) (applying Chapman harmless error test to wrongful admission of guilty plea evidence and concluding that error was harmless due to limiting instruction and overwhelming evidence against the defendant); United States v. Elizondo, 277 F. Supp. 2d 691, 703 (S.D. Tex. 2002) (noting that “[t]he [c]ourt’s error in admitting [the d]efendant’s guilty plea and conviction will not warrant a new trial if it is beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (internal quotation marks and citation omitted)).{45} In addition, the United States Su-preme Court has explained that error can be analyzed under a harmless error test when the case involves “error which occurred during the presentation of the case to the jury, and which may therefore be quan-titatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond
a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991). Thus, the harmless error test has been applied to the admission of a defendant’s confession in violation of his constitutional rights, Milton v. Wainwright, 407 U.S. 371, 376 (1972), the admission of a coerced confes-sion, Fulminante, 499 U.S. at 295, and the admission of an accomplice’s statements in violation of the confrontation clause. State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 32, 136 N.M. 309, 98 P.3d 699 (apply-ing harmless error test to the erroneous admission of an accomplice’s confession). The erroneous admission of evidence of a defendant’s attempted guilty plea, like the erroneous admission of a coerced confes-sion or a statement admitted in violation of the confrontation clause, is a defect in the presentation of evidence to the jury and “may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307-08. Here, the erroneous admission of evidence that Defendant attempted to plead guilty is not the type of error that affects the structure of the trial and requires automatic reversal such as deprivation of the right to counsel, trial before a biased judge, or the race-based exclusion of potential jurors. See Fulimi-nante, 499 U.S. at 310 (discussing the types of cases that are not subject to harmless error analysis because they affect the very structure of the trial). {46} Because the erroneous admission of Defendant’s attempt to plead guilty could touch upon various constitutional rights, we disagree with the dissent’s con-clusion that a violation of Rule 11-410 is not subject to the harmless error analysis stated in Chapman. That test requires us to determine “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” and we “must be able to conclude beyond a reasonable doubt that the jury verdict would have been the same absent the er-ror.” State v. Johnson, 2004-NMSC-029, ¶ 9, 136 N.M. 348, 98 P.3d 998 (internal quotation marks, citations and alteration omitted). This requires us to carefully consider “the error’s possible impact on th[e] evidence” and “[i]f, at the end of that examination, we conclude there is a reason-able possibility the evidence complained of might have contributed to the conviction, we must reverse.” Id. ¶ 10. Applying that analysis, we cannot conclude that there is a reasonable possibility that the admission
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of the evidence that Defendant attempted to plead guilty affected the jury’s verdict in this case.{47} Our Supreme Court in Johnson provided a framework for our analysis. That case addressed whether a confronta-tion clause violation amounted to harmless error and adopted a number of factors to consider. These factors include:
the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or ab-sence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination oth-erwise permitted, and, of course, the overall strength of the prosecu-tion’s case.
Id. ¶ 11 (internal quotation marks and cita-tion omitted). We believe that these factors are useful in the context of the present issue involving the erroneous admission of an attempted guilty plea.{48} Our Supreme Court’s application of these factors in Johnson provides further guidance. The Court determined that an erroneously admitted statement constituted reversible, not harmless, error. Regarding the first factor, the statement “provided the only direct evidence of guilt with respect to th[e] theory of armed robbery,” and there was therefore “a reasonable possibility that its erroneous admission contributed to the verdict.” Id. ¶ 32. With respect to a separate charge of accomplice liability, the Court held that “[w]hile there is much other circumstantial evidence from which reason-able inferences of [the d]efendant’s guilt might have been derived, [the erroneously admitted] statement provides the direct evi-dence of [the d]efendant’s intent to commit armed robbery that rendered such infer-ences unnecessary” and the “only direct evidence that [the d]efendant was armed.” Id. ¶ 36. The Court therefore concluded that the statement was “of central importance to the prosecution’s case.” Id. Applying the second factor, the Court rejected the State’s argument that the evidence was merely cumulative because “[t]o the extent the evidence corroborates, and therefore strengthens, the prosecution’s evidence, it cannot be deemed ‘cumulative’ as we understand that term.” Id. ¶ 37. The Court explained that cumulative evidence is addi-tional evidence that supports a fact already established by existing evidence, while cor-roborative evidence tends to confirm a point suggested by other evidence but not already
proved. Id. ¶ 39. Finally, the Court noted that the defendant’s testimony contradicted the evidence that had been erroneously ad-mitted and that the jury would have had to make a credibility determination in favor of the erroneously admitted evidence in order to disregard the defendant’s testimony and convict him. Id. ¶ 43. Based on its analysis of these factors, the Court determined that it could not conclude beyond a reasonable doubt that the evidence did not contribute to the defendant’s conviction. Id.{49} Similarly, in Elizondo, a case cited by the dissent, the court concluded that its admission of evidence that a defendant had pleaded guilty was not harmless error because “[t]he remaining evidence against [the d]efendant, though probably legally sufficient to sustain a verdict, was not so strong that the [c]ourt can with any confi-dence say that evidence of the guilty plea and conviction did not have a substantial impact on the jury’s verdict.” 277 F. Supp. 2d at 704. The court also noted that the other evidence of the defendant’s knowledge, an essential element of the crime charged, “was limited and circumstantial.” Id.{50} In this case, in contrast to Johnson and Elizondo, we are able to conclude be-yond a reasonable doubt that the erroneous admission of Defendant’s attempted guilty plea did not contribute to the jury’s verdict. Unlike the case against the defendant in Johnson, the case against Defendant here was not comprised solely of circumstantial evidence that the erroneously admitted evidence served to corroborate. Instead, the State in this case offered direct evidence that Defendant had committed aggravated stalking, including Tamisha’s eyewitness testimony that Defendant had threatened her on multiple occasions and the similar eyewitness testimony of Samantha and Hope regarding Defendant’s multiple threats toward Tamisha.{51} In addition, Officer Guinn testified that Defendant stated that he was going to make Tamisha “feel his pain,” that he was going to put the fear of God in her, and that he had sat down in front of Tamisha’s residence after receiving the TRO in order to “inflict[] pain” on her. Finally, Officer Jackson testified that Defendant admitted to him that the night he received the TRO, Defendant had stopped by Tamisha’s house and “left a note on her door” and had sat outside Tamisha’s house “[t]o instill fear in her.”{52} Thus, at the time that the State’s witness testified that Defendant had at-tempted to plead guilty, the jury had already
heard an overwhelming amount of eyewit-ness testimony proving that Defendant had engaged in a pattern of threatening behavior directed at Tamisha. More importantly, the jury had already heard testimony from Of-ficers Jackson and Guinn that Defendant had admitted that he had done everything that Tamisha had accused him of. The testimony that Defendant had attempted to plead guilty and had stated that everything Tamisha had said about him was true, therefore, merely repeated Defendant’s admissions of guilt that were already properly before the jury. Consequently, the guilty plea evidence was truly cumulative evidence that simply reiterated evidence already before the jury. The erroneously admitted evidence was not, as the dissent argues, corroborative evidence that merely strengthened the prosecution’s case. In ad-dition, when Defendant took the stand in his own defense, he did not offer any testimony that was inconsistent with his guilty plea. Defendant did not deny that he had engaged in the pattern of threatening conduct that gave rise to his aggravated stalking convic-tion; instead, Defendant admitted that he had done everything Tamisha had accused him of and maintained that he did not re-ally intend to threaten or actually harm her. As a result, the State’s cross-examination of Defendant was far from “devastating,” Dissent ¶ 54, because the State simply re-emphasized evidence that had already been admitted through other witnesses and that had nothing to do with the attempted guilty plea. Because the erroneously ad-mitted testimony was cumulative and was not central to the prosecution’s case or contradicted by any other evidence in the record, we are able to conclude beyond a reasonable doubt that the admission of Defendant’s attempted guilty plea did not contribute to his conviction. We, therefore, hold that the error caused by the admission of the testimony that Defendant attempted to plead guilty was harmless.{53} We further disagree with the dis-sent’s contention that the admission of De-fendant’s attempted guilty plea may have forced him to take the stand in violation of his constitutional rights. Defendant never disputed the occurrence of the threatening actions about which the eyewitnesses had testified. Instead, while cross-examining the State’s witnesses, defense counsel sought only to show that Defendant did not really intend to harm Tamisha. Because his defense was based on his intentions when he threatened Tamisha, not whether he had actually threatened her, we cannot conclude
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that the admission of the guilty plea forced Defendant to take the stand in his own defense. The only way that Defendant could establish that he did not mean that he would actually harm Tamisha when he threatened to harm her was by testify-ing that his threats were empty. Without Defendant’s testimony, the case would have rested on the State’s case, which overwhelmingly proved that Defendant had engaged in a pattern of threatening behavior sufficient to find him guilty of aggravated stalking. In light of this, it is unlikely that Defendant would have con-templated a different defense theory even if the evidence of the attempted guilty plea had not been admitted.{54} Finally, the dissent argues that the State has failed to meet its burden of showing that any error caused by the admission of the attempted guilty plea was harmless beyond a reasonable doubt. While we agree that this is the State’s burden, Chapman, 386 U.S. at 24; John-son, 2004-NMSC-029, ¶ 9, we decline to reverse on the technical basis of the State’s failure to argue harmless error. We have analyzed the State’s violation of Rule 11-410 using the Chapman constitutional error test even though Defendant did not argue on appeal that this violation rose to the level of constitutional error. It would be patently unfair to require the State to address an argument in its answer brief in response to an argument that was not raised by Defendant. In addition, Chap-man ultimately requires only that “the court must be able to declare a belief that [the error] was harmless beyond a rea-sonable doubt.” 386 U.S. at 24. Because we are able to reach this conclusion on our own review of the record, we do not believe that the State’s failure to meet a burden that it was unaware had been imposed on it requires us to rule in favor of Defendant. See State v. Romero, 2006-NMCA-045, ¶ 69, 139 N.M. 386, 133 P.3d 842 (applying harmless error review where the state did not argue that error was harmless).CONCLUSION{55} For the foregoing reasons, we affirm Defendant’s conviction for aggravated stalk-ing.{56} IT IS SO ORDERED. CYNTHIA A. FRY, Chief Judge
I CONCUR:JAMES J. WECHSLER, JudgeMICHAEL E. VIGIL, Judge (concurring in part, dissenting in part).
Vigil, Judge (concurring in part, dissenting in part).{57} I concur with the majority opinion except Part C in which it concludes that improperly admitting evidence before the jury that Defendant attempted to plead guilty did not constitute reversible error. For the reasons which follow, I respectfully submit that Defendant is entitled to a new trial in which the improper evidence is excluded from the jury’s consideration. Since the majority disagrees, I dissent.FACTS{58} On January 31, 2006, Officer Guinn arrested Defendant and booked him into the Otero County Detention Center on a felony charge of aggravated stalking. Officer Guinn noted that Defendant was to appear in court “when called upon.” Three days later on February 3, 2006, Defendant was brought before the magistrate court for his first ap-pearance. Because a felony is not within the jurisdiction of the magistrate court, at a first appearance the magistrate judge only ad-vises the defendant of the charge, the penalty provided, his rights, and sets the matter for a preliminary hearing. Rule 6-501(A), (D) NMRA. “In actions not within magistrate trial jurisdiction, no plea shall be entered.” Rule 6-302(A) NMRA. At Defendant’s first appearance the magistrate judge noted that Defendant wanted an attorney, wanted to consult with counsel, and wanted a trial by jury. Since Defendant was indigent and incarcerated, it was ordered that a public defender represent Defendant.{59} After he obtained counsel, Defendant entered a plea of not guilty, and a jury trial was held in the district court on the felony charge. The State presented the testimony of Tamisha, Tamisha’s friend Samantha, Officer Guinn, and Officer Jackson and established the facts set forth in paragraphs 2-6 of the majority opinion. Except to the extent raised by the Miranda issue addressed in Part B of the majority opinion, Defendant does not challenge on appeal the testimony of these witnesses or the facts established by their testimony.{60} The State’s last witness at trial was Ms. Gilmore, a victim advocate with the district attorney’s office. She testified that she at-tended Defendant’s first appearance in the magistrate court. Defendant and whoever else was in jail were shown a videotape which explained to the prisoners their rights. When the videotape was played, no attorney was present to advise Defendant. After the video was played to the group of prisoners, Ms. Gilmore said that the magistrate judge read the criminal complaint to Defendant,
and the magistrate judge asked Defendant to plead to the charge. Ms. Gilmore testi-fied that Defendant stated “he wanted to plead guilty.” Defense counsel immediately objected and, at a bench conference, argued that the testimony was highly improper and related to an attempt to plead guilty without the presence of counsel. Defendant moved for a mistrial. Arguing that the evidence was admissible, the prosecutor said, “The proffer is that . . . Defendant began to talk about I just want to go to Arkansas, everything that the victim said is true, I just want to plead guilty. We believe that’s an admission of guilt. It’s—it’s admissible.” After further argument, the district court ruled that the prosecutor could lay a foundation for admis-sion of the evidence.{61} Ms. Gilmore then testified that the magistrate court utilizes a video arraign-ment procedure. Ms. Gilmore said that the practice is for a videotape to be played ex-plaining to the prisoners their rights and that if they have a felony charge, this constitutes their first appearance and if they have a mis-demeanor charge, this is their arraignment. After the ten-minute video is played, the magistrate judge calls each prisoner one at a time and they sit in a chair and he talks to them through a video monitor. While seated in the chair, the defendant is able to see the judge on a video monitor, and the judge is likewise able to see the defendant on a video monitor from his location. There is a third video monitor in the jail which is pointed at the audience so the public can see and hear the entire process. The magistrate judge then asks each defendant whether he observed and understood the videotape. On the basis of this testimony and over Defendant’s objection, the district court ruled that the State established a foundation to admit Ms. Gilmore’s testimony. {62} Ms. Gilmore then told the jury that Defendant acknowledged to the magistrate judge that he understood the rights explained by the videotape and said he wanted to plead guilty. The magistrate judge advised Defendant he could not accept a guilty plea because he was charged with a felony, and Ms. Gilmore said that Defendant replied, “[b]ut I’m not denying anything that she has said. I just want to go back to Arkansas.” {63} Defendant testified in his own defense. He began his testimony by explaining why he had tried to plead guilty in the magistrate court:
Well, in that particular occa-sion, with everything I heard from everybody in New Mexico in jail, if I pleaded guilty, then my trial
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would go faster. And that’s basi-cally all I really wanted was for my trial to go faster. Not knowing anybody in New Mexico and not having any family and friends, I just wanted to get back home.
Defendant then denied committing the acts Tamisha accused him of. Explaining why he had said in the magistrate court that he agreed with what Tamisha was saying, Defendant testified, “[b]ecause as I said earlier, I just didn’t want to fight about this any more. I felt like my chances of winning this case against a female this county knows [were not good], so my best bet would be to plead guilty, get this over with, and get back home as soon as possible.” {64} Not surprisingly, the prosecutor’s cross examination of Defendant was detailed and devastating. Q. Do you recall being arraigned at the video arraignment over in Magistrate Court? You’re in jail, video machine is set up; is that correct? A. Yes, sir. Q. And you remember you had to watch a videotape; is that correct? A. Yes, sir. Q. And the Judge came on the screen and called you up to the chair and asked you are you Christopher Smile? You know that? A. Yes, sir. Q. You remember that? A. Yes, sir. Q. Okay. Do you remember the Judge asking you if you watched the videotape and understood it? A. Yes, sir. Q. And you remember saying that yes, you watched it, and you understood it? A. Yes, sir. Q. And do you remember the Judge asking you how do you plead, and you said I plead guilty. Is that correct? A. Yes, sir. Q. And do you recall telling the Judge or the Judge telling you he couldn’t take the guilty plea because it was a felony? A. Yes. Q. And do you remember saying at that time everything that Tamisha said was true? A. Yes, sir. Q. I just want to plead guilty and go back to Arkansas. Is that what you said? A. Yes, sir. Q. Now, at the time of that arraignment, you were being arraigned on aggravated stalking in that courtroom; isn’t that true? A. Yes, sir.
Q. And you said everything she said about aggravated stalking was true, cor-rect? A. I never specified what she said was true, never said everything she said was true, I didn’t specify what. Q. Well, you were being arraigned for aggravated stalking; do you agree with that? A. That doesn’t mean that I was agree-ing to the fact that—I was agreeing to the fact that she charged me with aggravated stalking. Q. Well, let’s just try to agree to dis-agree on some stuff. This was on date of arraignment, you already said you agreed to—you tried to plead guilty. Do you agree that you said, “Everything that Tamisha said was true”? A. Yeah. Q. Now, when those questions are—you understand that you were being ar-raigned for aggravated stalking, is that correct? A. Yes, sir. Q. Do you understand and recognize that the Judge read you the elements of the crime of aggravated stalking? A. Yeah. (Inaudible) evidence of what it came to be aggravated stalking, and I’m pretty sure I would be kind of upset about being locked up for six months over it. Q. And do you understand—or do you agree that he told you the—well, I won’t go into that. But you knew that there would be repercussions for you saying that; is that fair enough? A. Yes, sir. Q. Okay. Now, in your cross—or direct examination with [your counsel], you said—tried to make an excuse for this. You said—basically, you said everything she said was true only because you wanted to magically get out of jail, go take care of your baby girl in Arkansas. Is that what you said? A. First of all, it wasn’t an excuse, it was a true statement. Q. Okay. So when you talked to [the] Judge . . . and you said everything Tamisha said was true, are you saying that you were lying to a Judge? A. No, I wasn’t lying to anybody. Q. Well, was this a true statement, everything— A. Yes, it was true. * * * Q. Mr. Smile, so what you’re saying now is when you said everything Tamisha said was true, that is a true statement? A. Yes, it is.
Q. So your statement earlier today with [your counsel on direct] that that wasn’t true, was that a lie? A. I never said it wasn’t true. The only thing I ever said was—what I said and what the truth—because I wanted to go back home to be with my child. That’s all I’ve been wanting for the last six months was to see my daughter. ANALYSIS {65} I agree with the majority that Rule 11-410 of the Rules of Evidence was clearly violated. See Majority Opinion ¶¶ 39-41. Rule 5-304(F) NMRA of the Rules of Crimi-nal Procedure was also violated. This rule is equally clear and unambiguous and in almost the same language directs:
Evidence of a plea of guilty, later withdrawn . . . or of an offer to plead guilty [or] no contest . . . to the crime charged or any other crime, or of statements made in connection with any of the forego-ing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.
Id. {66} The fact that evidence of Defen-dant’s offer to plead guilty was admitted, as opposed to evidence of an actual plea, makes no substantive difference, and the majority agrees. Majority Opinion ¶ 42. Rules 11-410 and 5-304(F) equate offers to plead guilty with actual guilty pleas. Moreover, the cases which have considered whether such a distinction makes a difference have concluded it does not. See State v. McGunn, 294 N.W. 208, 209 (Minn. 1940) (concluding that a conditional offer to plead guilty to the court, which the court did not accept, is to be treated the same as a withdrawn guilty plea); State v. Meyers, 12 S.W. 516, 519 (Mo. 1889) (holding that evidence of an earlier rejected guilty plea was not admissible); overruled on other grounds, Ex Parte Keet, 287 S.W. 463 (Mo. 1926); Dykes v. State, 372 S.W.2d 184, 186 (Tenn. 1963) (equating an offer to plead guilty with an actual plea that is withdrawn); Dean v. State, 161 S.W. 974, 975 (Tex. Crim. App. 1913) (concluding that an offer of the defendant’s counsel to plead guilty was not admissible). {67} I first part company with the ma-jority in its conclusion that the error in this case is subject to a harmless error analy-sis. Majority Opinion ¶ 43. Because of the nature of statements made to a judge in a judicial proceeding while pleading
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guilty or offering to plead guilty, the er-roneous admission of such statements into evidence is not subject to a harmless error analysis.{68} It is beyond debate that the best evidence of whether a competent accused committed a violation of the criminal law is his own statement that he committed the act with the requisite intent. This is exactly what a guilty plea is, and the pro-bative force of such evidence cannot be overlooked. When a defendant proceeds to trial, it is on the basis of a “not guilty” plea. Allowing the State to introduce evidence of an attempt to plead guilty nullifies the entire basis for the trial. The resulting prejudice is so obvious and so overwhelming that when a defendant’s prior attempt to plead guilty to a judge is improperly admitted into evidence, reversible error is committed regardless of what the remaining evidence in the case may be. {69} The majority asserts that the ad-mission of Defendant’s attempted guilty plea into evidence did not constitute structural error. Majority Opinion ¶ 45. I disagree. Defendant’s constitutional right to the presumption of innocence instantly evaporated the moment Ms. Gilmore told the jury that when Defendant appeared before the magistrate judge, Defendant said he “wanted to plead guilty,” and that “I’m not denying anything that she [Tamisha] has said.” {70} In Coffin v. United States, 156 U.S. 432, 453 (1895), the United States Supreme Court declared:
The principle that there is a pre-sumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.
Furthermore, the “presumption of in-nocence, although not articulated in the Constitution, is a basic component of a fair trial.” Estelle v. Williams, 425 U.S. 501, 503 (1976). What occurred in this case deprived Defendant of a “basic component of a fair trial.” Id. The very foundation of how we administer our criminal justice system is weakened when we sanction subjecting such an error to a harmless error analysis. I therefore conclude that structural error occurred in this case. {71} It is the public policy in New Mexico to encourage, not to discourage, plea agreements. “Guilty pleas are an
essential part of our criminal justice sys-tem[.]” Trujillo, 93 N.M. at 727, 605 P.2d at 235. In order to facilitate plea discus-sions, our Supreme Court has declared
Rule [11-]410 does not set up standards of relevancy and trust-worthiness, and we will not impose any on it. If a plea is never entered or entered and then withdrawn, at trial it is to appear as though the earlier plea and/or plea discussions never took place. The slate is wiped clean once plea negotiations fail or the defendant withdraws his plea. * * *[A] weighing of conflicting policies demonstrates that the balance is tipped in favor of interpreting Rule [11-]410 as the cloak of privilege around plea negotiation discussions.
Trujillo, 93 N.M. at 727, 605 P.2d at 235. The majority acknowledges this is the rule in New Mexico. Majority Opinion ¶ 42. However, the majority fails to acknowl-edge that this public policy places New Mexico squarely in line with the United States Supreme Court and other state courts that conclude that the admission into evidence of an aborted guilty plea constitutes reversible error.{72} Kercheval, 274 U.S. at 223, es-tablishes the federal evidentiary rule that admitting a withdrawn guilty plea into evidence constitutes reversible error, re-gardless of why the plea was withdrawn. The reasoning is particularly applicable here:
The effect of the court’s order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against [the de-fendant] was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight [by the jury] the court reinstated it pro tanto.
Id. at 224. The Supreme Court further observed that a trial is based upon a plea of not guilty which is substituted for the prior guilty plea. Id. Therefore, allowing the withdrawn plea to be admitted into evidence for the jury’s consideration places a defendant “in a dilemma utterly incon-sistent with the determination of the court awarding him a trial.” Id. The Supreme Court did not discuss or analyze whether the evidence was otherwise sufficient to
sustain the conviction. See also State v. Jackson, 325 N.W.2d 819, 822 (Minn. 1982) (holding that statements made in connection with a withdrawn plea are to be treated as if they were never made, and reversing the defendant’s conviction where statements he made in connection with a plea agreement were admitted into evidence to impeach his trial testimony); People v. Heffron, 399 N.Y.S.2d 501, 504, 506 (N.Y. App. Div. 1977) (noting that the argument for reversal was compelling be-cause in cross examination of the defendant concerning a withdrawn guilty plea, the prosecutor asked the defendant whether he lied when he entered the plea. Although there was no objection to the questioning, the court reversed because the error was “so fundamental and prejudicial as to require a new trial in the interest of justice”); State v. Hayes, 172 N.W.2d 324, 325-26 (Minn. 1969) (reversing the conviction in a bench trial where evidence of a withdrawn guilty plea in a prior arraignment for the same of-fense was admitted); D. Welch, Annotation, Propriety and Prejudicial Effect of Show-ing, in Criminal Case, Withdrawn Guilty Plea, 86 A.L.R.2d 326, §§ 4, 8, at 331-35, 338-39 (1962) (collecting cases and not-ing it is the rule in many jurisdictions that admission into evidence of a withdrawn guilty plea is reversible error because it is not admissible for any purpose at a trial upon a plea of not guilty and that such error is not cured even by an instruction to jurors to disregard their knowledge of that fact). {73} My second disagreement with the majority is how it applies the concept of harmless error to the admitted violation. The majority states that it “cannot conclude that there is a reasonable possibility that the admission of the evidence that Defendant attempted to plead guilty affected the jury’s verdict in this case.” Majority Opinion ¶ 46. Furthermore, the majority disagrees that the admission of Defendant’s attempted guilty plea “may have forced him to take the stand in violation of his constitutional rights.” Majority Opinion ¶ 53. These conclusions appear to be grounded upon a conclusion that the attempted plea was nothing more than cumulative evidence. Majority Opin-ion ¶¶ 50-52.{74} The admission into evidence of Defendant’s attempt to plead guilty and statements he made in connection with that attempt violated, touched upon, and implicated various constitutional rights of Defendant. Two constitutional rights of Defendant were squarely violated. Trujillo mandates that where a plea fails,
36 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
“at trial it is to appear as though the earlier plea and/or plea discussions never took place.” 93 N.M. at 727, 605 P.2d at 235. Stated another way, at trial Defendant was entitled to every constitutional safeguard and presumption associated with a plea of “not guilty.” Because of the nature of a guilty plea, which I have already discussed, improperly admitting into evidence Defen-dant’s attempt to plead guilty destroyed Defendant’s constitutional presumption of innocence. In addition, the State’s improper use of Defendant’s statements made in connection with his offer to plead guilty resulted in him testifying against himself “in substance if not in form.” See Wood v. United States, 128 F.2d 265, 274 (D.C. Cir. 1942) (using this language). Once Defendant’s statements in connection with the attempted plea were improperly admitted, his constitutional right to remain silent was destroyed. He had to testify about the plea if he was to have any hope of overcoming its effect on the jury. See Spitaleri, 173 N.E. 2d at 37 (stating that after the defendant’s withdrawn guilty pleas was improperly admitted into evidence, he was “in effect forced to take the stand” to explain that although he was innocent, he pleaded guilty because his lawyer promised him a suspended sentence). Finally, State v. Reardon, 73 N.W.2d 192, 195 (Minn. 1955), squarely holds that the admission into evidence of a withdrawn guilty plea violates the due process protected by both the United States Constitution and the Min-nesota Constitution.{75} There are additional constitutional rights which are touched upon or implicated in this case. The record establishes that a videotape was shown to a group of prison-ers in jail, which included Defendant, that explained to the prisoners their “rights.” However, the videotape is not before us, so we do not know its contents. We do know, however, that Defendant had no attorney when the videotape was played and he offered to plead guilty. Whether Defendant was afforded his constitutional right to counsel and whether there was a valid waiver of this constitutional right are both implicated. See State v. Melendez, 397 A.2d 1117, 1118, 1120 (N.J. Super. Ct. App. Div. 1979) (per curiam) (concluding that the defendant’s constitutional right to counsel was violated when he pleaded guilty at his first appearance because it was made without counsel or a valid waiver of counsel, and directing that “[n]o admissions made by defendant during the original arraignment shall be admissible
in evidence against him in the event he is retried”). Secondly, we have no basis for concluding whether Defendant validly waived his constitutional right against self-incrimination when he offered to plead guilty. This constitutional right is also im-plicated. See United States ex rel. Spears v. Rundle, 268 F. Supp. 691, 699 (E.D. Pa. 1967), aff’d, 405 F.2d 1037 (3d Cir. 1969) (concluding that a guilty plea cannot oper-ate as a waiver of the constitutional right against self-incrimination if there was no valid waiver of that privilege in making the plea itself).{76} Under Chapman, in order to hold that constitutional error does not require re-versal, we must be able to conclude that the error was “harmless beyond a reasonable doubt.” 386 U.S. at 24; Johnson, 2004-NMSC-029, ¶ 8; State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 25. The burden lies with the State to demonstrate that the er-ror is harmless beyond a reasonable doubt. Johnson, 2004-NMSC-029, ¶ 9; Alvarez-Lopez, 2004-NMSC-030, ¶ 25. However, the State makes no argument of harmless error. Specifically, the State’s brief fails to make any assertion or argument attempting to demonstrate that there is no reasonable possibility that admitting Defendant’s statements and attempt to plead guilty into evidence contributed to his convic-tion. See Johnson, 2004-NMSC-029, ¶ 11 (stating the central focus in determining whether constitutional error was harmless is “whether there is a reasonable possibility the erroneous evidence might have affected the jury’s verdict”).{77} In my independent examination of the record, I cannot conclude beyond a reasonable doubt that the error in ad-mitting this evidence was harmless. In Alvarez-Lopez, our Supreme Court noted Fulminante in which the United States Su-preme Court “was faced with determining whether a criminal defendant’s involuntary confession, which was unconstitution-ally admitted into evidence against him at his trial, contributed to his conviction.” Alvarez-Lopez, 2004-NMSC-030, ¶ 34. Our Supreme Court agreed that
[C]onfessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so. . . . [A] full confession in which the defen-dant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision. . . .
[T]he risk that the confession is unreliable, coupled with the pro-found impact that the confession has upon the jury, requires a re-viewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.
Id. ¶ 34 (quoting Fulminante, 499 U.S. at 296). See also United States v. Leon-Delfis, 203 F.3d 103, 112 (1st Cir. 2000) (“Confes-sions are by nature highly probative and likely to be at the center of the jury’s at-tention.”). This reasoning has even greater force where a guilty plea is concerned. As I have already noted, a judicial guilty plea has its own unique probative weight which is virtually impossible to overlook. In the words of the United States Supreme Court, “A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction.” Kercheval, 274 U.S. at 223 (emphasis added). {78} In Elizondo, the defendant was convicted of conspiracy to possess with intent to distribute, and conspiracy to distribute, cocaine in federal court. 277 F. Supp. 2d at 692. The federal judge admitted into evidence the defendant’s guilty plea in state court, together with the state judgment of conviction, that he possessed the same drugs. Id. at 697. The defendant was granted a new trial after the judge concluded that he improperly admitted this evidence. Id. at 703-04. Applying Chapman, the judge found “there is a significant possibility that admission of [the d]efendant’s state court guilty plea and conviction had a substantial impact on [the d]efendant’s conviction on the federal conspiracy charge.” The judge first recognized that “admission of the guilty plea likely had an even greater impact on the verdict than admission of the conviction itself.” Id. at 703. The judge then went fur-ther and candidly acknowledged the effect it had upon the court itself when he denied the defendant’s motion for a directed verdict. Id. at 703-04. When he denied the defendant’s motion, the judge had said, “Well, I don’t know of a better form of demonstration of knowledge [of the drugs] than somebody pleading guilty to it.” Id. at 704.{79} Under the circumstances of this case, it is not possible to conclude that the error was harmless beyond a reasonable doubt. See Johnson, 2004-NMSC-029, ¶ 10 (directing that if we conclude, “there is a reasonable possibility the evidence complained of might have contributed to the conviction” after examining the admissible evidence
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and the possible impact of the error on that evidence, “we must reverse”). {80} Johnson and Alvarez-Lopez both teach that constitutional error cannot be deemed harmless simply because there is over-whelming evidence of a defendant’s guilt. Johnson, 2004-NMSC-029, ¶ 11; Alvarez-Lopez, 2004-NMSC-030, ¶ 32. Among the reasons given are the recognition that appellate courts are “poorly equipped” to determine guilt or innocence. Id. ¶ 29. Fur-thermore, defendants have a constitutional right to have a jury decide guilt or inno-cence, not appellate judges reviewing the evidence on appeal, id. ¶ 27, and we cannot take the risk that the appellate court—the wrong entity—is adjudging the defendant’s guilt. Id. ¶ 28. Consistent with the jury trial guarantee, the inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id. ¶ 27 (internal quotation marks and citation omitted). Perhaps most compel-ling, “we risk inadvertently concluding that constitutional error was harmless simply because there was substantial evidence to support the conviction.” Id. ¶ 30. Accord-ingly, when constitutional error has infected a trial, a jury verdict is not automatically afforded deference. Id. “Rather, in a proper harmless error analysis, the appellate court defers to the jury verdict only when the State has established beyond a reasonable doubt that the jury verdict was not tainted by the constitutional error.” Id.
{81} As a policy matter, we must be cogni-zant that our criminal justice system, and our federal and state constitutions, “protect other values besides the reliability of the guilt or innocence determination.” Id. ¶ 31 (internal quotation marks and citation omitted). A harmless error analysis which focuses solely on whether overwhelming evidence supports a guilty verdict does not adequately protect those values. Id. In this regard, I agree with the following statement from Reardon, 73 N.W.2d at 195, which answered the state’s argument that whether there was prejudice requiring a new trial when a withdrawn guilty plea was admitted into evidence was determined by whether or not the error affected the result.
The state contends that whether or not there was prejudice requir-ing a new trial is determined by whether or not the error affected the result. There is authority for this proposition—but where the constitutional right to a fair trial is denied, we are unwilling to adopt a theory which in effect assumes that, where proof is strong, due process may be suspended. . . . It is true there is cogent evidence to support the verdict; and it may be expected that on a second trial the result would be the same. But to allow factually strong cases to erode such a basic right is to deny the existence of the right.
Id. (citations and footnotes omitted). {82} Notwithstanding the weight of the
remaining evidence against Defendant, the State has failed to demonstrate that the verdict was not tainted by the error. The majority’s attempt to demonstrate harmless error fails. Again, evidence of Defendant’s attempt to plead guilty has a unique evi-dentiary weight, and simply reciting what other evidence the State presented does not demonstrate harmless error. {83} Finally, I disagree with the major-ity conclusion that Defendant’s attempt to plead guilty was “truly” cumulative. Majority Opinion ¶ 52. Johnson states, “To the extent the evidence corroborates, and therefore strengthens, the prosecution’s evi-dence, it cannot be deemed ‘cumulative’ as we understand that term. 2004-NMSC-029, ¶ 37. Again, given the nature and effect of a guilty plea, the improper evidence in this case not only corroborated and strength-ened the State’s case, it did so beyond any reasonable doubt. Even if the evidence viewed as merely cumulative, “improperly admitted evidence that is cumulative is not ipso facto harmless beyond a reasonable doubt: the reviewing court must further inquire into the effect that evidence might have had on the jury’s verdict.” Id. In this case, it cannot be assumed that the improper evidence had no effect on the verdict in this case. CONCLUSION{84} For all the foregoing reasons, I would reverse Defendant’s conviction and remand the case for a new trial. MICHAEL E. VIGIL, Judge
38 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
Certiorari Granted, No. 31,724, July 1, 2009; Certiorari Denied, No. 31,725, June 22, 2009
From the New Mexico Court of Appeals
Opinion Number: 2009-NMCA-065
Topic Index:Civil Procedure: Due Process; and Election of Remedies
Civil Rights: Attorney Fees; Procedure; and Section 1983 ActionsConstitutional Law: Due Process; Ripeness; and
Taking Without CompensationGovernment: Land Use; and Zoning Law
Judgement: InterestRemedies: Compensatory Damages; Election of Remedy;
Respondent-Appellant.No. 24,026 (filed: May 7, 2009)
consolidated with Nos. 24,027; 24,042; and 24,425
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYSUSAN M. CONWAY and WILLIAM F. LANG, District Judges
STEPHEN T. LECUYERMETTLER & LECUYER, P.C.Albuquerque, New Mexico
GEORGE R. PAT BRYAN IIITIMOTHY V. FLYNN-O’BRIEN
BRYAN & FLYNN-O’BRIENAlbuquerque, New Mexico
PHILLIP B. DAVISAlbuquerque, New Mexico
for Appellee
ROBERT M. WHITECity Attorney
MARK HIRSCHAssistant City Attorney
Albuquerque, New Mexico
ALICE T. LORENZLORENZ LAW
Albuquerque, New Mexico
JOHN S. CAMPBELLCAMPBELL & WELLS, P.A.
Albuquerque, New Mexico
DWIGHT H. MERRIAMJAMES A. WADE
GREGORY W. MCCRACKENROBINSON & COLE, L.L.P.
Hartford, Connecticutfor Appellant
1The City separately appealed a jury verdict and two whole-record reviews that were conducted by the trial court of the City’s decisions regarding ACP’s development of the property. On a motion by the City, we consolidated the three appeals.
opinion
celia foy castillo, Judge
{1} On motion for rehearing, the opinion filed October 30, 2008, is withdrawn, and the following opinion is substituted in its place. The motion for rehearing is other-wise denied.{2} The operable event that forms the basis for these consolidated cases1 occurred over thirteen years ago when the Albuquerque City Council (City) adopted the 1995 Uptown Sector Plan (1995 USP), which affected property leased by Albuquerque Commons Partnership (ACP). Until 1995, the leased property was governed by the 1981 Uptown Sector Plan (1981 USP). In 1991, ACP selected Opus Southwest Corporation (Opus) as the buyer for the leasehold. Opus submitted a site plan for the property in June 1994 and then, in July 1994, withdrew the plan because of public outcry. In September 1994, the City requested a comprehensive overview of the 1981 USP. Before the City could complete the overview, Opus submitted another site plan (ACP/Opus site plan). The City deferred consideration of the ACP/Opus site plan and implemented an expedited schedule to evaluate proposed revisions to the 1981 USP. The City ultimately adopted the 1995 USP.{3} ACP sought review of the City’s adop-tion of the 1995 USP in the trial court. ACP also claimed damages under 42 U.S.C. § 1983 (2000) for violations of due process and for an unconstitutional taking in viola-tion of the Fifth Amendment. Concluding that the 1995 USP was enacted contrary to law as applied to ACP, the trial court ordered the City to consider the ACP/Opus site plan under the 1981 USP. The City complied and ultimately rejected the ACP/Opus site plan under the 1981 USP. The claims for damages continued to trial, and the jury found for ACP on both the due process and the takings claims. The takings verdict was dismissed pursuant to the doctrine of election of remedies.{4} ACP appealed to this Court, and we reversed. Albuquerque Commons P’ship v. City Council of the City of Albuquerque (ACP II), 2006-NMCA-143, ¶ 2, 140 N.M.
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2 The City’s appeal as to attorney fees and costs was a separate appeal before this Court. Before the Supreme Court filed ACP III, we reversed the trial court’s allocation of costs and fees in a memorandum opinion. Albuquerque Commons P’ship v. City Council of the City of Albuquerque, No. 24,425, slip op. at 3 (N.M. Ct. App. Dec. 9, 2005). As a result of the holding in ACP III, we now consolidate the fees and costs appeal with the other three consolidated cases considered by the Supreme Court in ACP III.
751, 149 P.3d 67. Among other things, we held that (1) the City’s adoption of the 1995 USP was a legislative act, (2) ACP was not entitled to quasi-judicial process, and (3) the City did not downzone ACP’s property. Id. ¶¶ 36-39, 71. ACP appealed, and on certiorari our Supreme Court held that ACP’s property was downzoned by the adoption of the 1995 USP and that as a result, the City had been required to provide ACP with quasi-judicial process. Albuquer-que Commons P’ship v. City Council of the City of Albuquerque (ACP III), 2008-NMSC-025, ¶¶ 33, 43, 144 N.M. 99, 184 P.3d 411. The Supreme Court went on to hold that because the City did not provide these enhanced procedures, ACP’s right to due process had been violated and that the 1995 USP was not properly enacted. Id. ¶¶ 51-52. Finally, the Supreme Court concluded that the City had wrongfully denied ACP approval of the ACP/Opus site plan under the 1981 USP. Id. ¶¶ 58-59. The Supreme Court therefore reversed ACP II and remanded the case to this Court to make the following determinations: (1) whether ACP had a constitutionally protected prop-erty interest that would satisfy the threshold requirement for a Section 1983 claim, (2) whether the 1995 USP was an unconsti-tutional taking of ACP’s property by the City, and (3) whether damages were prop-erly awarded. Id. ¶¶ 53-60. We will also consider the City’s challenges to the trial court’s award of attorney fees and costs.2 We address each issue in turn and hold as follows: (1) we affirm the jury award of damages in the amount of $8,349,095 to ACP on its Section 1983 claim; (2) we need not address the issues related to the takings verdict because we affirm the Sec-tion 1983 award; (3) we reverse the award of post-judgment interest; and (4) we affirm the trial court’s award of attorney fees and costs.{5} The facts surrounding the adoption of the 1995 USP, the resulting law suits, and the several appeals are set forth in ACP II, 2006-NMCA-143, ¶¶ 4-29, and in ACP III, 2008-NMSC-025, ¶¶ 4-20. We need not repeat the long and complicated history of the case. Instead, we rely on the short background summary that we have already recited and will include additional facts as necessary. We now turn to the remaining issues on appeal.
II. DISCUSSIONA. Section 1983 Claim{6} In order to prove its claim under Sec-tion 1983, ACP was required to show that the City, “acting under color of state law, cause[d ACP] to be deprived of a federally protected constitutional right.” Miles v. Bd. of County Comm’rs, 1998-NMCA-118, ¶ 6, 125 N.M. 608, 964 P.2d 169. ACP argued at trial that the protected constitutional right violated by the City was the right to procedural due process. The jury entered a verdict for ACP. In its appeal to this Court, the City challenges the due process verdict on the following grounds: (1) the trial court improperly found that ACP had a constitutionally protected property right; (2) procedural due process protections do not apply in the present case because the adoption of the 1995 USP was a legislative act, and ACP received all of the process that was due; (3) the Section 1983 claim was not ripe; and (4) the trial court im-properly awarded damages. In addressing each argument, we look to the holdings of our Supreme Court in ACP III—that ACP’s property was downzoned, that the City accomplished the downzoning in a manner that violated ACP’s due process rights, and that the adoption of the 1995 USP required a quasi-judicial hearing. ACP III, 2008-NMSC-025, ¶¶ 43, 51. We begin with the nature of ACP’s property right.1. Property Right{7} To establish a violation of procedural due process, ACP was required to show that the City deprived ACP of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Here, we focus on the property interest portion of the equation. In order to decide whether a party has a constitutionally protected prop-erty right, we first must determine whether there is a state-created substantive property right and then consider whether that right triggers federal due process protections. Memphis Light, Gas & Water Div. v. Craft (Memphis Light), 436 U.S. 1, 10 (1978) (“Although the underlying substantive interest is created by an independent source such as state law, federal constitutional law determines whether that interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause.” (internal quotation marks and citation omitted)).
a. State-Created Property Right{8} Our Supreme Court has explained that constitutionally protected “property interests are those to which an individual has a claim of entitlement.” Mills v. N.M. State Bd. of Psychologist Exam’rs, 1997-NMSC-028, ¶ 15, 123 N.M. 421, 941 P.2d 502. Although it is well settled under New Mexico law that a property owner has no vested right in a particular zoning classifi-cation, Aragon & McCoy v. Albuquerque Nat’l Bank, 99 N.M. 420, 423, 659 P.2d 306, 309 (1983), ACP relies on require-ments associated with “downzoning” in order to establish a property right. Ac-cording to ACP, because its property was downzoned, and not simply re-zoned, the City was required to establish a mistake in the original zoning or subsequent changed conditions in the neighborhood before the zoning could be legally changed. Miller v. City of Albuquerque, 89 N.M. 503, 506, 554 P.2d 665, 668 (1976). The requirement enunciated in Miller is referred to as the “change or mistake” rule. Our Supreme Court agreed with ACP’s position and held that “the City’s actions did constitute a downzoning of [ACP’s] property without complying with important standards set forth in Miller and Davis [v. City of Albu-querque, 98 N.M. 319, 321, 648 P.2d 777, 779 (1982)].” ACP III, 2008-NMSC-025, ¶ 2.{9} In addition, the City’s applicable zon-ing regulation—Resolution 270-1980— tracks the “change or mistake” requirement. ACP III, 2008-NMSC-025, ¶ 28. In order to implement a map amendment to a zon-ing classification, Resolution 270-1980 requires the City to “demonstrate that the existing zoning is inappropriate because (1) there was an error when the existing zone map pattern was created, or (2) changed neighborhood or community conditions justify the change, or (3) a different use category is more advantageous to the community.” ACP II, 2006-NMCA-143, ¶ 64 (internal quotation marks and citation omitted). In the present case, the Supreme Court has held that the 1995 USP was a map amendment, which triggered the require-ments of Resolution 270-1980. ACP III, 2008-NMSC-025, ¶ 50.{10} Based on these New Mexico cases and Resolution 270-1980, we agree with the trial court that ACP had a right, under
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state law, to continued zoning in the face of downzoning or a map amendment un-less the City was able to justify a zoning change under the requirements enunciated by Resolution 270-1980 and Miller. Ac-cordingly, we conclude that ACP had a state-created property interest.b. Federal Protection{11} The next inquiry is whether the fed-eral constitution extends its protection to this state-created property right. A party claiming a federally protected property interest must have a “legitimate claim of entitlement to it.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). “[A] legitimate claim of entitlement is cre-ated only when the statutes or regulations in question establish a framework of factual conditions delimiting entitlements which are capable of being explored at a due pro-cess hearing.” Eidson v. Pierce, 745 F.2d 453, 459-60 (7th Cir. 1984). In the context of municipal land use regulation, “[t]he entitlement analysis centers on the degree of discretion given the decisionmaker and not on the probability of the decision’s fa-vorable outcome.” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (internal quotation marks and citation omitted). Accordingly, we must decide whether the applicable law, Reso-lution 270-1980 or Miller, substantively limited the City’s discretion to pass the 1995 USP. See Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence (Jacobs), 927 F.2d 1111, 1116 (10th Cir. 1991). “Otherwise, the city’s decisionmaking lacks sufficient substantive limitations to invoke due pro-cess guarantees.” Id.{12} As we have explained, Resolution 270-1980 requires the City to justify zone map amendments by establishing (1) errors at the time the existing zone map pattern was created, or (2) changes in the neighbor-hood or community conditions that justify the amendment, or (3) that a different use category is more advantageous to the com-munity. These are substantive and direct limitations on the City’s discretion: By its own rules, the City cannot make a zone map amendment without demonstrating, in some fashion, at least one of these criteria. See ACP III, 2008-NMSC-025, ¶ 28 (stat-ing that Resolution 270-1980 requires the proponent of a piecemeal downzoning to establish one of three criteria).{13} In addition, Miller unequivocally limits the City’s ability to downzone a particular piece of property. 89 N.M. at 506, 554 P.2d at 668. “[B]efore a piece-meal zoning change is sought, the above
principles and considerations must be taken into account, particularly when the zoning change of a piece of property is sought by the zoning authority instead of by the owner of the property affected.” Id. (emphasis added) (internal quotation marks and citation omitted). The ACP III Court concluded that passage of the 1995 USP created a zone map amendment, 2008-NMSC-025, ¶ 50, and that it had the effect of downzoning ACP’s property. Id. ¶ 43. The requirements of both Resolu-tion 270-1980 and the requirements under Miller were therefore triggered; however, ACP III again provides guidance. Because rigid application of the Miller rule would “unduly impede the zoning authority’s ability to make zoning decisions that are ultimately beneficial to the community at large,” our Supreme Court concluded that the requirements of “Resolution 270-1980 adequately accommodate[] the need for planning and zoning flexibility.” ACP III, 2008-NMSC-025, ¶ 30. As a result, it was necessary for the City to establish one of the three criteria set forth in Resolution 270-1980, including that “the change is more advantageous to the community, as articulated in the Comprehensive Plan or other City master plan.” Id. (internal quota-tion marks and citation omitted).{14} Our Supreme Court explained in ACP III that the zoning changes effected by the City in the present case “must be justified pursuant to the Miller rule and Resolution 270-1980” and that such changes “require specific factual findings relating to the affected properties.” ACP III, 2008-NMSC-025, ¶ 32. The parties are entitled to individual notice, to “an opportunity to be heard, to an opportunity to present and rebut evidence, to a tribunal which is impartial in the matter—i.e., hav-ing had no pre-hearing or ex parte contacts concerning the question at issue—and to a record made and adequate findings executed.” Id. ¶ 34 (internal quotation marks and citation omitted). All of these procedural requirements are necessary in order for the City to properly establish the substantive criteria: change, mistake, or a more advantageous use category. See id. ¶ 30 (establishing the minimum “proof” required to demonstrate a more advanta-geous use category). When attempting to accomplish the type of downzoning at is-sue in this case, the City has no discretion to proceed without providing evidence to justify the change in accordance with these criteria. See id. ¶ 51 (“The [95 USP] Intense Core restrictions singled out a small section
of the Uptown Sector and downzoned that area, requiring the City, as the proponent of the zone change, to justify that change in accordance with the criteria set forth in Miller and Resolution 270-1980.”).{15} The focus in this inquiry is not the City’s failure or success in establishing change, mistake, or a more advantageous use. Rather, the property right is created in the language of the Resolution, Miller, Da-vis, and most recently, ACP III, all of which eliminate the City’s discretion to engage in spot downzoning without considering the factors. See ACP III, 2008-NMSC-025, ¶ 32 (“[B]ecause such [spot downzoning] must be justified pursuant to the Miller rule and Resolution 270-1980 (or a similar local policy), they require specific factual findings relating to the affected proper-ties.”). To reiterate, any failure by the City to actually establish one of the criteria does not lead to a property deprivation or a due process violation redressable under Section 1983. Such a deprivation or violation only arises in the event that a party is denied notice or a meaningful opportunity to be heard.{16} The City argues that it has enor-mous discretion in its application of the Resolution 270-1980 factors—particularly in the application of the “more advanta-geous use” criterion—and that because the factors do not dictate the outcome of the City’s spot downzoning decision, Resolution 270-1980 and Miller do not create a protected property right. We first observe that our Supreme Court has sub-stantially narrowed the City’s discretion in the application of this factor. In ACP III, the Court explained that the “proof” of a more advantageous use category “would have to show, at a minimum, that ‘(1) there is a public need for a change of the kind in question, and (2) that need will be best served by changing the classification of the particular piece of property in question as compared with other available property.’” 2008-NMSC-025, ¶ 30 (quoting Fasano v. Bd. of County Comm’rs of Wash. County, 507 P.2d 23, 28 (Or. 1973), superceded by statute as stated in Menges v. Bd. of County Comm’rs of Jackson County, 606 P.2d 681 (Or. Ct. App. 1980)).{17} Second, we are not persuaded that the cases cited by the City require us to conclude that in order for ACP to have a federally protected property interest to be free from spot downzoning absent a Miller/Davis/Resolution 270-1980 inquiry, the outcome of the City’s spot-zoning deter-mination must be predetermined by the
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governing law. The City cites Kentucky Department of Corrections v. Thompson (Thompson), 490 U.S. 454 (1989), Hyde Park Co., Jacobs, and Sylvia Development Corp. v. Calvert County, 48 F.3d 810 (4th Cir. 1995).{18} In Thompson, the Supreme Court of the United States concluded that prison regulations did not place sufficient substan-tive limitations on the state’s discretion to allow a prisoner to receive visitors. 490 U.S. at 464-65. As a result, the prisoner did not have a protected liberty interest in the regulations that allowed for visitors. Id. at 465. The Court explained that “the most common manner in which a [s]tate creates a liberty interest is by establishing substan-tive predicates to govern official decision-making, and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Id. at 462 (internal quotation marks and citation omitted). Ultimately, the Court reasoned that “[t]he overall effect of the regulations is not such that an inmate can reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions.” Id. at 464-65. The Court continued: “Or, to state it differently, the regulations are not worded in such a way that an inmate could reasonably expect to enforce them against the prison officials.” Id. at 465.{19} The City’s reliance on Thompson is misplaced. First, the case concerns the constitutional rights of a prisoner, which have been construed narrowly over the past thirty years. See Ahmed A. White, The Concept of “Less Eligibility” and the Social Function of Prison Violence in Class Society, 56 Buff. L. Rev. 737, 777 (2008) (“[T]he courts made clear that, while they are not entirely beyond the realm of con-stitutional protection, prisoners only enjoy such constitutional rights as are consistent with legitimate penological interests; and that in determining what those interests are, courts must generally defer to the discre-tion of prison officials, granting them wide deference in fashioning and implementing penological policies.” (internal quotation marks and footnotes omitted)). Second, the property right in the present case is the right to continued zoning in the face of spot downzoning, absent a showing of evidence under Miller/Davis/Resolution 270-1980. Considering the mandatory lan-guage in Miller and Resolution 270-1980, ACP could “reasonably form an objective expectation” that its zoning category would remain in effect absent evidence that could
establish at least one of the required criteria. See Thompson, 490 U.S. at 465.{20} In Hyde Park Co., the Tenth Circuit Court of Appeals was faced with a different factual scenario. In that case, a developer applied to the City of Santa Fe for approval of a proposed subdivision plat. 226 F.3d at 1209. The proposal was denied and the developer appealed, arguing that it had a constitutionally protected property right in approval of its plat. Id. The Hyde Park Co. Court disagreed because “the applicable ordinances read as a whole fail to place any discernible substantive limitations on the [city’s] discretion in this matter.” Id. at 1212. According to the ordinance in Hyde Park Co., the city “had the power to affirm, reverse, or modify the . . . decision as ought to be made.” Id. “Without clearly defined limitations on the [city’s] exercise of discre-tion to assist [in the] construction of local law,” the Tenth Circuit hesitated “to infer such limits and involve [a] federal court in a land use regulation dispute which is purely a matter of local concern.” Id. In order to have demonstrated the requisite limitation on the city’s discretion, the plaintiffs in Hyde Park Co. would have had to show that “a set of conditions exist under state and local law, the fulfillment of which would give rise to a legitimate expectation” of plat approval—the asserted federally protected right. Id. at 1210 (internal quotation marks and citation omitted).{21} In the present case, ACP had to show a set of conditions existing under local law which, if fulfilled, would give rise to a legitimate expectation that the City would provide evidence regarding the zoning change according to Miller and Resolution 270-1980. Unlike the ordinance in Hyde Park Co., Resolution 270-1980 provides “clearly defined limitations” on the City’s discretion to engage in spot downzoning, and there is no need to infer substantive limitations—those limitations are delineated in the ordinance. See 226 F.3d at 1212.{22} In Jacobs, the Tenth Circuit Court of Appeals also considered whether a zon-ing body’s discretion was sufficiently lim-ited such that the parties had a “legitimate expectation to the rezoning of their prop-erty.” 927 F.2d at 1116. The landowners in that case argued that certain factors set out in a state court opinion were sufficient to limit the discretion of the city commis-sioners. Id. at 1114, 1116. The Jacobs Court disagreed because the state supreme court had acknowledged that the factors were not meant to be limits but, instead, “meant only
as suggestions.” Id. at 1116. Therefore, the state law did not “arm [the] appellants with sufficient rules or mutually explicit understandings that support [their] claim of entitlement.” Id. at 1117 (second alteration in original) (internal quotation marks and citation omitted). The limitations set forth in Miller and in Resolution 270-1980 are not merely suggestions. The Miller Court expressed in no uncertain terms that prior to piecemeal downzoning, the stated “prin-ciples and considerations must be taken into account.” 89 N.M. at 506, 554 P.2d at 668. Resolution 270-1980 states that the applicants “must demonstrate” at least one of the three requirements enumerated in the resolution. The language of Miller and Resolution 270-1980 is sufficiently manda-tory to support a claim of entitlement.{23} Sylvia Development Corp. is similar to Hyde Park Co. and Jacobs: a developer applied to the county board of commissioners for a special zoning desig-nation, which was denied after vociferous public outcry. Sylvia Dev. Corp., 48 F.3d at 815, 816. The developer appealed and argued, in relevant part, that it was entitled to approval of its application if all of the criteria set forth in the applicable zoning ordinance were met. Id. at 825-26. The Fourth Circuit Court disagreed for two reasons: (1) the county had complete discretion to create the requested special zoning designation because of permissive language in the ordinance and (2) the cri-teria in the zoning ordinance were merely preconditions to be met by an applicant before the county would consider creating a special zoning designation. Id. at 826. As we have explained, Resolution 270-1980 is neither permissive in its language nor does it outline preconditions that a property owner is required to meet. Instead, in the event of a spot downzoning, Resolution 270-1980 and Miller require the City to provide proof of the listed criteria. See ACP III, 2008-NMSC-025, ¶ 34 (“The burden is on the proponent of the zone change to establish that the change is justified.”).{24} We note a further distinction between the present case and Hyde Park Co., Jacobs, and Sylvia Development Corp. In these three federal cases, the plaintiffs sought to obtain an as yet non-existent benefit: approval of a plat, Hyde Park Co., 226 F.3d at 1209, a zoning change, Jacobs, 927 F.2d at 1113, or a special zoning designation. Sylvia Dev. Corp., 48 F.3d at 815. In the present case, ACP seeks to maintain an already existing benefit—a zoning classification—in the
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face of the City’s attempt to downzone the property. See ACP III, 2008-NMSC-025, ¶ 43. “[P]rocedural protection of property has been recognized as a valid safeguard of ‘interests that a person has already acquired in specific benefits’ and as a means ‘to protect those claims upon which people rely in their daily lives.’” Jacobs, 927 F.2d at 1118 (quoting Roth, 408 U.S. at 577). The City is required to justify piecemeal zone map amendments according to Resolution 270-1980 and piecemeal downzoning under Miller. That justification is a benefit that ACP acquired prior to the proposal and adoption of the 1995 USP. See River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994) (“Those things people can hold or do without the government’s aid count as property or liberty no matter what criteria the law provides.”).{25} We consider the present case to bear a certain resemblance to Memphis Light. In that case, the United States Supreme Court considered whether homeowners had a constitutionally protected property interest in continued utility service. 436 U.S. at 3. The Mem-phis Light Court concluded that “[t]he outcome of that inquiry is clear in this case,” id. at 9, because the law of the state did “not permit a public utility to termi-nate service ‘at will.’” Id. at 11. Instead, in that state, a public utility could “terminate service only ‘for cause.’” Id. As a result, the homeowner had a continued right to utility service until the public utility could establish cause to terminate service. See id. In the present case, the City could only adopt the 1995 USP if it could establish at least one of the requirements of Resolu-tion 270-1980—just as the utility could only terminate service for cause. Neither ACP nor the homeowner had “rights of undisputed ownership.” Memphis Light, 436 U.S. at 11 (internal quotation marks and citation omitted). Nevertheless, both parties asserted a “legitimate claim of entitlement within the protection of the Due Process Clause.” Id. at 12 (internal quotation marks and citation omitted).{26} Although ACP’s pre-existing benefit, or entitlement, is limited and is triggered only under the conditions explained in Miller or outlined in Reso-lution 270-1980, we conclude that ACP has a federally protected property interest to continued zoning under the narrow circumstances presented by this case. Accordingly, we turn next to consider whether ACP received all of the process
that it was due in order to protect its property right.2. Process Due{27} We next consider whether the process provided by the City was suffi-cient to safeguard ACP’s constitutionally protected property right. The City argues that ACP received all of the process that was due because the City provided and ACP participated in seven hearings about the adoption of the 1995 USP. Further, the City argues that because the adoption of the 1995 USP was a legislative act, consti-tutional due process was not required. We first note that our Supreme Court held in ACP III that the adoption of the 1995 USP was a quasi-judicial, and not a legislative, act. ACP III, 2008-NMSC-025, ¶¶ 37-39, 43.{28} We also observe that our Supreme Court in ACP III outlined the quasi-judi-cial hearing process to which piecemeal or spot downzoned property owners are entitled. 2008-NMSC-025, ¶ 34. While this process is certainly necessary to sat-isfy state law, Section 1983 actions are brought under federal law. The United States Supreme Court has explained that “[p]rocess is not an end in itself. Its constitutional purpose is to protect a sub-stantive interest to which the individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983). The Olim Court concluded that while a state may choose to require cer-tain procedures, “making that choice . . . does not create an independent substan-tive right.” Id. at 250-51. In particular, the characterization of a zoning process as quasi-judicial does not engender the “expectation of a property interest or otherwise place substantive limitations on official discretion.” Jacobs, 927 F.2d at 1117. From these authorities, we conclude that the failure to hold a particular type of hearing was not by itself a failure of due process actionable under Section 1983.{29} “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaning-ful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks and citation omitted), abrogated on other grounds as recognized by State v. Gonzales, 2001-NMCA-025, ¶ 58 & n.1, 130 N.M. 341, 24 P.3d 776. “[R]esolution of the issue whether the administrative procedures provided here are constitu-tionally sufficient requires analysis of the governmental and private interests that are affected.” Mathews, 424 U.S. at 334;
see also Erica, Inc. v. N.M. Regulation & Licensing Dep’t, Alcohol & Gaming Div., 2008-NMCA-065, ¶ 27, 144 N.M. 132, 184 P.3d 444. That analysis includes three factors:
First, the private interest that will be affected by the official action; second, the risk of an errone-ous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute proce-dural safeguards; and finally, the [g]overnment’s interest, includ-ing the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 335. We have already identified ACP’s private interest: the right to continued zoning unless the City can justify downzoning according to the re-quirements of Resolution 270-1980.{30} The second factor considers (1) the risk of erroneous deprivation absent the requested procedure and (2) the proba-tive value of the additional safeguard. To analyze the second factor, we must first consider what procedure ACP requested. The City points out that ACP had an oppor-tunity to participate in seven hearings and that seven hearings satisfied any procedural due process right. ACP disagrees.{31} In order to resolve this issue, we need only turn to one aspect of the hearing—the type of tribunal. During its review of the downzoning issue, our Su-preme Court concluded that the City made “no effort to provide ACP with an impartial tribunal by limiting ex parte contacts on the part of the council members.” 2008-NMSC-025, ¶ 36. The question remains, however, whether an impartial tribunal would substantially reduce the risk of erro-neous deprivation of ACP’s protected right and what the probable value of an impartial tribunal would be.{32} It is well established that “a fair trial in a fair tribunal is a basic requirement of due process.” Withrow v. Larkin, 421 U.S. 35, 46 (1975) (internal quotation marks and citation omitted). Our Supreme Court has determined that the City Council was a bi-ased tribunal. ACP III, 2008-NMSC-025, ¶ 36. Hearings before a biased tribunal create a substantial risk of erroneous deprivation. See N.M. Bd. of Veterinary Med. v. Riegger, 2007-NMSC-044, ¶ 27, 142 N.M. 248, 16 P.3d 947 (“Procedural due process requires a fair and impartial hearing before a trier of
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fact who is disinterested and free from any form of bias or predisposition regarding the outcome of the case.” (internal quotation marks and citation omitted)). The present case exemplifies the risk. The City per-ceived itself to be conducting a legislative hearing. While a quasi-judicial hearing is not required to satisfy due process, a legis-lative hearing before a legislative tribunal led to actual ex parte contact in this case. See Withrow, 421 U.S. at 47 (explaining that a contention of bias “must overcome a presumption of honesty and integrity of those serving as adjudicators”). Prior to the adoption of the 1995 USP, a non-counselor contacted a counselor—outside of the hearings—and “encouraged” her not to propose amendments to the 1995 USP that would have allowed ACP to proceed with its project. ACP III, 2008-NMSC-025, ¶ 36 n. 3. The counselor acted on the contact, withdrawing her proposed amend-ments. Id. Thus, this ex parte contact had a direct, negative effect on ACP’s protected property right, and an impartial tribunal would have had a great deal of value as an additional safeguard.{33} Analysis of the third factor shows that there is no added burden on the City to provide a meaningful opportunity to be heard before an impartial tribunal. Taking all of the factors together, we conclude that the balance weighs in favor of providing a property owner with an impartial tribunal—one free from ex parte contacts—prior to implementing a piecemeal downzone. 3. Adequacy of State Remedies{34} Despite our holding that the City’s procedure failed to provide ACP with adequate process to protect its property rights, we continue our analysis to deter-mine whether ACP properly established a Section 1983 cause of action in light of available state-law remedies. See Starko, Inc. v. Gallegos, 2006-NMCA-085, ¶ 19, 140 N.M. 136, 140 P.3d 1085 (explain-ing that “not all deprivations of property interests, even if they are in violation of state law, are actionable under [Section] 1983” because plaintiffs must show that “state remedies provided inadequate pro-cedural safeguards”). The City makes two arguments in this regard: (1) a due process deprivation is not complete until the pro-cess has failed and whether the process has failed cannot be determined until the deprived party has navigated the entire sys-tem of available state appeals and (2) any procedural error that may have occurred in the present case was simply a mistake and “is not tantamount to a violation of a
federal right.” We address each argument in turn.{35} The City’s first argument is based on the multiple levels of state court review that were available to ACP after the 1995 USP passed. The City contends that at the first level of review in the district court, ACP argued against remand for the City to conduct a quasi-judicial review of the ACP/Opus site plan. Thus, the City argues, any due process violation was never complete because review of the passage of the 1995 USP was available in the district court, this Court, and our Supreme Court, and ACP refused to participate in that procedure. ACP maintains that no state remedy was available to adequately address its loss. With this argument, ACP appears to focus on its financial loss rather than on any due process violation. It is well established that “[a]lthough the state remedies may not pro-vide the respondent with all the relief which may have been available if he could have proceeded under [Section] 1983, that does not mean that the state remedies were not adequate to satisfy the requirements of due process.” Parratt v. Taylor, 451 U.S. 527, 544 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Having disposed of ACP’s challenge to the adequacy of the available state remedies to address the financial loss, we turn to consider whether the state appellate process was adequate to address the due process violation in the present case.{36} The Supreme Court of the United States has explained that in some cases, “due process requires a predeprivation hearing before the [s]tate interferes with any liberty or property interest enjoyed by its citizens,” id. at 537, and, as a result, state appellate procedures are not sufficient to cure a due process violation. In such cases, “deprivations of property [are] au-thorized by an established state procedure and due process [requires] predeprivation notice and [a] hearing in order to serve as a check on the possibility that a wrongful deprivation [c]ould occur.” Id. at 538. In other cases, for example in Parratt itself, “random and unauthorized” state acts that lead to deprivations of property are cured by a postdeprivation hearing—or an appeal—because a predeprivation hearing is impractical. Id. at 541, 543. We thus consider whether the City’s actions were random and unauthorized in order to determine whether the available appellate process was a constitutionally sufficient remedy for ACP’s due process depriva-tion.
{37} The City cites McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), which held that a biased decisionmaker is an inherently random and unauthorized act because bias is not sanctioned by the state. Id. at 1563. As a result, the McKinney court concluded that the plaintiff was not deprived of due process unless the state refused to address the alleged bias on appeal from the ad-ministrative proceeding. See id. at 1562. We are unpersuaded by McKinney for two reasons.{38} First, McKinney was decided in the context of employment termination proceedings and the long line of cases that establish a fired employee’s due process rights. Id. (“[I]n the case of an employment termination case, due process [does not] require the state to provide an impartial de-cisionmaker at the pre-termination hearing. The state is obligated only to make avail-able the means by which [the employee] can receive redress for the deprivations.” (internal quotation marks and citation omitted)). Second, although the logic of McKinney is superficially attractive—that a biased tribunal is inherently not authorized by the state—the facts of the present case do not bear out this presumption. The City’s improper process was neither unpredictable nor the result of the rogue actions of one city councilor. The City chose to proceed by legislative hearings—a procedure that did not provide an impartial tribunal and allowed for ex parte contact. In addition, we are faced with the rare circumstance of having allegations of bias borne out by the record: a city councilor had indicated one course of action, was contacted by a constituent with an opposing view, and after that contact, the councilor changed her position and her vote. See ACP III, 2008-NMSC-025, ¶ 36 n.3. The decision to proceed legislatively is not sufficient alone to create a due process violation; it is possible that a legislative hearing could provide a meaningful opportunity to be heard or could be conducted without evidence of ex parte contact resulting in improper influence. Under the facts of the present case, however, as recognized by our Supreme Court in ACP III, there is substantial evidence to support the jury’s decision that ACP did not receive an impar-tial tribunal and that the flawed process was selected and endorsed as an official act of the whole governmental power of the City. See id. As a result, we are unpersuaded by the presumption applied in McKinney.{39} The present circumstances are more closely aligned with Zinermon v. Burch, 494
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U.S. 113 (1990). The plaintiff in Zinermon was admitted as a voluntary mental patient even though he was incompetent to provide informed consent for his admission. Id. at 114-15. The defendants argued that a postdeprivation remedy was sufficient, in lieu of a Section 1983 action, because the constitutional deprivation was the result of a random and unauthorized action by a state employee. Id. at 115. The Supreme Court of the United States explained that generally, “the Constitution requires some kind of a hearing before the State deprives a person of liberty or property.” Id. at 127. The random and unauthorized rule articulated in Parratt represents “a special case . . . in which postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the [s]tate could be expected to provide.” Zinermon, 494 U.S. at 128. In Zinermon, the state statute delegated broad authority to hospitals to admit patients, effectively without informed consent. Id. at 135. As a result, the hospital staff had “state authority to deprive persons of liberty [and] the Constitution imposed on them the [s]tate’s concomitant duty to see that no deprivation occur without adequate procedural protections.” Id. The Zinermon Court concluded that the postdeprivation procedures were inadequate because the deprivation was not unpredictable, prede-privation procedures were not impossible, and the deprivation was not unauthorized. Id. at 136-38.{40} In the present case, the City—as it strenuously argues—has broad authority to make zoning decisions that can lead to deprivations of constitutionally protected property rights. Part and parcel with that authority is the duty to provide adequate predeprivation procedural protections. Similar to the deprivation in Zinermon, an impermissibly biased tribunal was not un-predictable: the City’s decision to proceed legislatively carried with it the risk of ex parte contact and bias and, based on the record, the risk was elevated to reality. In addition, it was not impossible for the City to provide an unbiased tribunal. In Par-ratt, the deprivation involved the loss of personal property by prison officials—an action which was impossible for the state to predict and prevent by predeprivation hearing. 451 U.S. at 541. In the present case, the City was contemplating spot downzoning of ACP’s property, had a working knowledge of the common pro-cedures involved in legislative hearings, and could have anticipated that councilors
would be contacted outside of the official proceedings. It cannot be said that the instance of actual bias that resulted from the procedures employed was unpredict-able. Finally, we have already addressed the argument that the biased tribunal was unauthorized and need not repeat our analysis here.{41} We now reach the City’s second argument, which concerns the decision to proceed legislatively. The City maintains that its decision to proceed legislatively was merely a procedural error that does not rise to the level of a constitutional viola-tion and that if ACP is permitted to recover under Section 1983 based on a procedural flaw in the proceedings, property owners will have “the unilateral option to cash in on any procedural flaw in an administra-tive proceeding by declining remand and pursuing a [Section] 1983 action.” We disagree.{42} The bias in the present case was more than a procedural flaw because ACP had a protected property interest, it was entitled to due process, and there is evidence of actual bias in the process af-forded by the City. An unbiased tribunal was a constitutional requirement in the present case. See 1 E.C. Yokley, Zoning Law and Practice § 3A-1[d], at 3A-23 (4th ed. 2008) (“Procedural due process, however, will apply where a decision is administrative or quasi-judicial and the property owner has an entitlement rather than an expectancy to whatever he or she sought.” (footnotes omitted)). In addition, the decision to proceed under Section 1983, rather than to pursue administra-tive remedies, is a tactical and risk-laden choice. See 2 Steven H. Steinglass, Section 1983 Litigation in State Courts § 17:3, at 17-7 to 17-8 (2008) (discussing the tactical reasons for resorting to a Section 1983 ac-tion or for voluntarily submitting claims to administrative proceedings). The litigant takes the risk of receiving no remedy at all should he neglect to pursue administrative remedies, and the Section 1983 action may be blocked by the myriad of requirements that stand between a plaintiff and relief.{43} We recognize that other courts have concluded that minimal process is due under the Constitution in zoning cases and that a municipality’s failure to provide the process required under local law is a matter for state courts, not Section 1983. See River Park, Inc., 23 F.3d at 166-67. The River Park, Inc. court succinctly explained that “the due process clause per-mits municipalities to use political meth-
ods to decide, so that the only procedural rules at stake are those local law provides, and these rules must be vindicated in lo-cal courts.” Id. at 167. Nevertheless, our analysis of the present case leads to the conclusion that ACP had a property right that was to be afforded federal due process protections. Due process requires notice of the pending deprivation and a meaningful opportunity to be heard. In the present case, the meaningful opportunity to be heard was foreclosed by evidence of actual and impermissible bias on the tribunal—bias that was the foreseeable result of the political process chosen by the City as its official act to effectuate the deprivation of ACP’s property. Under the unusual circumstances of this case, we therefore hold that ACP’s Section 1983 action was not foreclosed by available state remedies and that the City’s failure to provide ACP with an impartial tribunal violated ACP’s right to procedural due process. See ACP III, 2008-NMSC-025, ¶ 52 (“[T]he City’s decision lacked procedural fairness and did not comport with due process of law.”).4. Ripeness of the Section 1983 Claim{44} The City contends that because ACP prevailed on both the due process and the takings issues at trial, ACP can-not recover damages for the Section 1983 claim until it has attempted to recover compensation for the taking. As a result of ACP’s failure to seek recovery for the taking, the City argues that the due process claim is not ripe. For support, the City cites Rocky Mountain Materials & Asphalt, Inc. v. Board of County Commissioners (Rocky Mountain), 972 F.2d 309 (10th Cir. 1992). In that case, the Tenth Circuit provided the following explanation:
When a plaintiff alleges that he was denied a property interest without due process, and the loss of that property interest is the same loss upon which the plaintiff’s takings claim is based, we have required the plaintiff to utilize the remedies applicable to the takings claim. It is appropriate in this case to subsume the more generalized Fourteenth Amend-ment due process protections within the more particularized protections of the Just Compensa-tion Clause. Accordingly, until a plaintiff has resorted to the con-demnation procedures to recover compensation for the alleged tak-ing, the procedural due process claim is likewise not ripe because
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it is in essence based on the same deprivation.
Id. at 311 (internal quotation marks and citation omitted). ACP argues that (1) fed-eral ripeness jurisprudence does not apply, (2) the takings claim was not coextensive with the due process claim, and (3) no state remedy existed for the takings claim, and ACP was therefore not required to pursue a non-existent remedy. For the reasons listed below, we agree with ACP that the takings claim and the due process claim were not coextensive, and we therefore do not ad-dress ACP’s other points.{45} Rocky Mountain identified two sets of circumstances. In one scenario, the loss of the property interest is the same loss upon which the takings claims is premised. Id. This is the scenario which the City argues is similar to the present case. However, Rocky Mountain goes on to explain that “[t]here are many intangible [property] rights that merit the protection of procedural due process although their infringement falls short of an exercise of the power of eminent domain for which just compensation is required under the Fifth and Fourteenth Amendments.” Id. (alterations in original) (internal quotation marks and citation omitted).{46} In the present case, the property right that forms the basis for the due process claim is an intangible right—the right to continuation of a certain zoning classifi-cation until the City can establish specific circumstances, as we have identified in preceding paragraphs. ACP’s loss resulting from the due process violation was a loss of opportunity to meaningfully participate in a hearing related to the adoption of the 1995 USP. Our Supreme Court has determined that ACP’s deprivation of this meaningful hearing resulted in its inability to develop its property. See ACP III, 2008-NMSC-025, ¶ 59. The jury was instructed accordingly on damages for that claim: place ACP in the position it would have been in had it been permitted to develop its property as proposed. The basis for the takings claim was that the passage of the 1995 USP did not advance a legitimate public interest and deprived ACP of all economically viable use of the property without compensation. The takings damages instruction directed the jury to award the value of the use of the property taken. The differences between the claims were reflected in the jury’s verdict on damages—six million dollars for tak-ings and more than eight million dollars for due process. It is further apparent that the right to receive meaningful process
could not be redressed by the remedy for the takings claim—adequate compensation for deprivation of the use of property. We therefore conclude that the two claims were not coextensive and that ACP was under no obligation to seek condemnation and compensation before recovering damages for the due process violation.5. Damages Under the Section 1983
Claim{47} In Section 1983 cases, the plaintiff must prove a causal connection between the wrongful conduct and the injury in order to justify an award of compensatory damages. Jacobs v. Meister, 108 N.M. 488, 495-96, 775 P.2d 254, 261-62 (Ct. App. 1989), disapproved of on other grounds by Carrillo v. Rostro, 114 N.M. 607, 623 n.16, 845 P.2d 130, 146 n.16 (1992). The City contends that ACP’s evidence relating to damages measured only the loss of profit that resulted from the inability to develop the property as planned. Specifically, the City argues that ACP was required to prove that if the City had provided due process, the 1995 USP would not have been ap-proved and that the ACP/Opus site plan would have been approved under the 1981 USP. We disagree.{48} “It is recognized that a Section 1983 action is a species of tort liability, and that the common law of tort damages will be a starting point for Section 1983 damages[.]” Wells v. County of Valencia, 98 N.M. 3, 5, 644 P.2d 517, 519 (1982). Our Supreme Court has explained that accord-ing to long-established principles of tort law, “the purpose of compensatory dam-ages is to make an injured person whole.” Lovelace Medical Center v. Mendez, 111 N.M. 336, 349, 805 P.2d 603, 616 (1991). The Mendez Court continued and stated that “one of the functions of compensatory damages is to indemnify the injured party against financial losses proximately caused by the negligence of another.” Id. Thus, in the context of the present case, ACP was required to prove that its financial losses were caused by the City’s actions.{49} As we have explained, the City failed to provide adequate process to protect ACP’s constitutionally protected property right and, therefore, the passage of the 1995 USP violated ACP’s due process rights. Absent the improperly passed 1995 USP, the 1981 USP governed the ACP/Opus site plan. Consequently, we turn to whether the ACP/Opus site plan would have been approved under the 1981 USP.{50} In ACP III, the Supreme Court determined that
[t]he record shows that the [ACP/]Opus site plan, though it needed some adjustments (adjustments that were in the process of being made at the time the City imposed the moratorium to consider the 1995 [USP] amendments), com-plied with the requirements of the 1981 [USP] and was no different from a number of projects that the City had previously allowed under that sector plan.
2008-NMSC-025, ¶ 59. This statement by our Supreme Court is the law of the case. “Under the law of the case doctrine, if an appellate court has considered and passed upon a question of law and remanded the case for further proceedings, the legal question so resolved will not be determined in a different manner on a subsequent ap-peal.” Scanlon v. Las Cruces Pub. Sch., 2007-NMCA-150, ¶ 7, 143 N.M. 48, 172 P.3d 185 (alterations omitted) (internal quotation marks and citation omitted). We therefore conclude that the ACP/Opus site plan would have been approved according to the 1981 USP, see ACP III, 2008-NMSC-025, ¶ 58, and that ACP proved that its financial losses were caused by the City’s failure to provide adequate process.{51} The City also briefly contends that ACP did not prove a portion of the damages related to reimbursement of a percentage of funds used to construct a road. The Su-preme Court did not address this argument in ACP III, and we thus consider whether ACP provided substantial evidence to sup-port the jury’s verdict that ACP’s damages were caused by the City’s actions. The City argues that there was no agreement that the City would reimburse ACP for construc-tion of Loop Road, a road adjacent to the site, and that damages related to the road were improperly awarded based on ACP’s assumption that the City would reimburse for road construction costs. The record supports ACP’s assumption in that there was evidence at trial that the City had paid a percentage of another access road, that the City had identified the cost of such a road as a cost to the City, and that the 1981 USP required public financing of the road. Accordingly, we conclude that ACP put on evidence to support the jury’s assessment of damages in this regard.B. Post-Judgment Interest{52} We review the trial court’s con-struction of the post-judgment interest statutes de novo. Bird v. State Farm Mut. Auto. Ins. Co., 2007-NMCA-088, ¶ 36, 142 N.M. 346, 165 P.3d 343. New Mexico
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is somewhat unique in how it handles the payment of post-judgment interest by the state and its political subdivisions. We look to NMSA 1978, § 56-8-4(D) (2004), which exempts the state and political subdivisions from paying post-judgment interest unless otherwise provided by statute or case law. This statute has been construed narrowly, and in order for a prevailing party to re-cover post-judgment interest from the state or a political subdivision, our courts have required an explicit waiver of sovereign immunity. Nava v. City of Santa Fe, 2004-NMSC-039, ¶ 23, 136 N.M. 647, 103 P.3d 571 (refusing to award post-judgment in-terest when immunity from post-judgment interest is not expressly waived); Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 47, 125 N.M. 721, 965 P.2d 305 (same). The City argues that because Section 1983 and 42 U.S.C. § 1988 (2000) do not pro-vide for post-judgment interest, the trial court improperly assessed post-judgment interest. ACP counters that post-judgment interest is mandatory in Section 1983 ac-tions filed in federal court and that it should therefore be allowed in state proceedings. We agree with the City.{53} As the City recognizes, post-judgment interest is routinely awarded in Section 1983 cases filed in federal court. The basis for those awards, however, is 28 U.S.C. § 1961 (2000). See, e.g., Trans-power Constructors v. Grand River Dam Auth., 905 F.2d 1413, 1423 (10th Cir. 1990) (“[I]nterest shall be allowed on any money judgment in a civil case recovered in a [federal] district court.” (internal quotation marks and citation omitted)); see also 28 U.S.C. § 451 (1982) (defining “district court” according to Title 5 of Chapter 28 U.S.C. in which 28 U.S.C. § 132 (1963) describes a district court as “a court of record known as the United States District Court for the district”). Section 1961(c)(4) explicitly provides that it “shall not be construed to affect the interest on any judgment of any court not specified in this section.” State courts are not specified in the section; therefore, there is no basis on which to apply the terms of Section 1961 to a Section 1983 claim filed in state court. It becomes clear that the federal precedent which permits post-judgment interest in Section 1983 claims does not supply the necessary authority to satisfy the mandate of New Mexico’s Section 56-8-4(D). Apart from the requirements of Section 1961, ACP provides no federal or state author-ity to establish that prevailing parties in Section 1983 claims filed in state court
are entitled to payments of post-judgment interest by a political subdivision of the state. We, too, have researched federal law and can find no additional authority for such a proposition.{54} We have also conducted a survey of the law in other states. The majority of jurisdictions do permit the recovery of post-judgment interest against the state or political subdivisions, either by statute, by case law, or by both. See Alaska Stat. § 09.50.280 (1997); Ariz. Rev. Stat. § 12-823 (1984); 735 Ill. Comp. Stat. 5/2-1303 (1987); Ind. Code § 34-54-8-5 (1998); Kan. Stat. Ann. § 16-204 (1996); N.Y. State Fi-nance Law § 16 (1982); Okla. Stat. tit. 12, § 727.1(B) (2004); Tenn. Code Ann. § 9-8-307(d) (2005); State of Ala. Highway Dep’t v. Milton Constr. Co., 586 So. 2d 872, 876 (Ala. 1991); Ca. Fed. Sav. & Loan Ass’n v. City of Los Angeles, 902 P.2d 297, 300 (Cal. 1995); Palm Beach County v. Town of Palm Beach, 579 So. 2d 719, 720 (Fla. 1991); Profit Recovery Group, USA, Inc. v. Comm’r, Dep’t of Admin. & Fin. Servs., 2005 MC 58, ¶¶ 32-33, 871 A.2d 1237; Md. State Highway Admin. v. Kim, 726 A.2d 238, 241 (Md. 1999); Lienhard v. State, 431 N.W.2d 861, 865-66 (Minn. 1988); City of Jackson v. Williamson, 95-CT-01072-SCT (¶¶ 14-15), 740 So. 2d 818, 821-22 (Miss. 1999); Nault v. N & L Dev. Co., 767 A.2d 406, 407, 409 (N.H. 2001); Judy v. Ohio Bureau of Motor Vehicles, 100 Ohio St. 3d 122, 2003-Ohio-5277, 797 N.E.2d 45, at ¶ 32; Woods v. Dep’t of Transp., 641 A.2d 633, 635 (Pa. Commw. Ct. 1994); Mulvaney v. Napolitano, 671 A.2d 312, 313 (R.I. 1995); Hart v. Salt Lake County Comm’n, 945 P.2d 125, 140 (Utah Ct. App. 1997).{55} There are a handful of other states that, as a general proposition, do not permit successful plaintiffs to recover post-judg-ment interest on verdicts against the state. See Chun v. Bd. of Trs. of the Employees’ Ret. Sys., 106 P.3d 339, 356 (Haw. 2005) (requiring express statutory relinquishment of the state’s sovereign immunity from post-judgment interest); Kenton County Fiscal Ct. v. Elfers, 981 S.W.2d 553, 559-60 (Ky. Ct. App. 1998); C & M Constr. Co. v. Commonwealth, 486 N.E.2d 54, 56 (Mass. 1985); Our Lady of Lourdes Hosp. v. Franklin County, 842 P.2d 956, 966 (Wash. 1993) (en banc). Montana is unique in that it provides a grace period of sorts. Its legislature has directed that under most circumstances, “if a governmental entity pays a judgment within 2 years after the day on which the judgment is entered, no
penalty or interest may be assessed.” Mont. Code Ann. § 2-9-317 (1997).{56} None of the states with law com-parable to New Mexico have addressed the specific question of post-judgment interest in a Section 1983 case filed in state court. Our research thus reveals that there is no support for ACP’s position that the City is required to pay post-judgment interest in this case.{57} ACP argues that the denial of post-judgment interest for Section 1983 claims brought in state court will have a twofold effect. First, ACP quotes Wells to argue that “[t]he Legislature cannot enact a law which would have the practical effect of depriving a party of his rights secured by the United States Constitution.” 98 N.M. at 7, 644 P.2d at 521. We note that Section 56-8-4(D) circumscribes only a party’s ability to collect post-judgment interest against the state and political subdivisions; in no way does the statute prevent a party from bringing a cause of action against the state or its political subdivision in order to vindicate constitutional rights. Second, ACP contends that “[s]tate law that creates different outcomes in federal and state court cannot be given effect.” For support, ACP cites Felder v. Casey, 487 U.S. 131 (1988). Felder considered whether a party must comply with a state’s pleading procedures in order to properly bring a Section 1983 claim. Felder, 487 U.S. at 138. The United States Supreme Court held that
[b]ecause the notice-of-claim statute at issue here conflicts in both its purpose and effects with the remedial objectives of [Section] 1983, and because its enforcement in such actions will frequently and predictably produce different outcomes in [Section] 1983 litigation based solely on whether the claim is asserted in state or federal court, we conclude that the state law is pre-empted when the [Section] 1983 action is brought in a state court.
Id. We do not believe that the New Mexico prohibition against the recovery of post-judgment interest against the state and political subdivisions “conflicts in both its purpose and effects with the remedial objectives of [Section] 1983.” Id. The remedial objectives of Section 1983 are certainly achieved when a plaintiff suc-cessfully brings suit for damages against the state to vindicate constitutional rights.
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The recovery of post-judgment interest operates only as an enforcement mecha-nism to encourage the timely payment of damages after judgment has been entered. See Bird, 2007-NMCA-088, ¶ 42 (“An award of post-judgment interest serves three purposes: compensating the plaintiff for being deprived of compensation from the time of the judgment until payment . . . by the defendant, discouraging unsuccessful defendants from pursuing frivolous appeals, and minimizing court supervision of the ex-ecution of judgments.” (internal quotation marks and citation omitted)). We therefore hold that the trial court improperly granted ACP post-judgment interest. Because post-judgment interest is not permissible under Section 56-8-4(D) in these circumstances, we need not consider whether the interest was properly assessed according to the state, and not the federal, interest rate.C. Attorney Fees and Costs1. Recovery Under Section 1988 For
State Law Claims{58} The City first contends that the trial court improperly awarded attorney fees for the first administrative appeal under Sec-tion 1988, which only allows recovery for federal civil rights actions. See N.C. Dep’t of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 12 (1986) (“On its face, [Sec-tion] 1988 does not authorize a court to award attorney’s fees except in an action to enforce the listed civil rights laws.”); Bo-gan v. Sandoval County Planning & Zon-ing Comm’n, 119 N.M. 334, 345, 890 P.2d 395, 406 (Ct. App. 1994) (explaining that a “plaintiff must prevail on some federal civil rights claim in order to be eligible for a fee award” under Section 1988). We review the trial court’s award of attorney fees for abuse of discretion. Nava, 2004-NMSC-039, ¶ 24. In the first administrative appeal, the trial court determined that the City was required to review ACP’s proposal under the 1981 USP and not the 1995 USP. The City’s posi-tion is that no part of the first administrative appeal was necessary in order to vindicate ACP’s civil rights. Instead, the City claims that the “sole issue under the petition . . . was an appellate review of the action of the City Council to determine the validity of a zoning decision—the adoption of the 1995 [USP].”{59} ACP contends that without the work performed for the first administrative appeal, the civil rights claim would not have been successful. The trial court agreed and found that “virtually everything [in the first administrative appeal] focused on whether there was a downzone.” As we discussed
above, ACP’s identifiable property right is to be free from downzoning unless the City can establish certain criteria. Therefore, there was no abuse of discretion to permit attorney fees for the first administrative appeal because that appeal decided an issue that was crucial to the later and success-ful constitutional claim. See N.C. Dep’t of Transp., 479 U.S. at 15 (“A court hearing one of the civil rights claims covered by [Section] 1988 may still award attorney’s fees for time spent on administrative pro-ceedings to enforce the civil rights claim prior to the litigation.”).2. Costs{60} The City next argues that specific costs awarded by the trial court were either (1) improperly categorized in the cost bill or (2) not recoverable under state or federal law. We review a trial court’s determina-tion of costs for abuse of discretion. Bird, 2007-NMCA-088, ¶ 27. In a Section 1983 action brought in state court, the prevail-ing party may recover some expenses of litigation under either federal or state law. Federal law permits the prevailing party to recover attorney fees under Section 1988, and fees may include “reasonable out-of-pocket expenses not normally absorbed as part of law firm overhead.” Brown v. Gray, 227 F.3d 1278, 1297 (10th Cir. 2000). These costs under Section 1988 are considered to be included in the award of attorney fees; therefore, amounts paid to third parties who are not attorneys are not recoverable under Section 1988. Brown, 227 F.3d at 1297. However, other costs may be awarded under the general costs statute. See id. Also, Rule 1-054(D)(2) NMRA permits the recovery of certain costs under state law. It includes the recov-ery of the following expenses under certain circumstances: filing fees; fees for service of summonses, subpoenas, writs and other service of process; jury fees; transcript fees including those for daily transcripts and transcripts of hearings prior or subsequent to trial; the cost of a deposition if any part is used at trial or in successful support or defense of a motion for summary judg-ment; witness mileage or travel fare and per diem expenses; expert witness fees for services; translator fees; reasonable expenses involved in the production of exhibits admitted into evidence; official certification fees for documents admit-ted into evidence; and interpreter fees for judicial proceedings and depositions.{61} The City contends that ACP im-properly categorized some expenses under Section 1988 that were not recoverable
under that section and other expenses under Rule 1-054 that were not permitted under that rule. The trial court concluded that any improper categorization of the requests did not “require that the request be disallowed [i]f it is otherwise compensable under the law.” Although ACP acknowledges that it claimed some items under both statutes, it repeatedly asserted that double recovery was not sought for expenses that were claimed under both laws. We agree with the trial court that if certain costs were permissible under any law—federal or state—ACP was entitled to recover those costs. See Rule 1-054(D)(1) (“[C]osts, other than attorney fees, shall be allowed to the prevailing party unless the court other-wise directs[.]”). We therefore review each of the City’s arguments regarding whether a particular expense is allowable under either Section 1988 or Rule 1-054(D).{62} The City disputes the trial court’s award of copy costs, subpoena fees, and transcript fees. These arguments are with-out merit because either Rule 1-054(D)(2) or Section 1988 permit the recovery of these costs, and the City admits that copy costs are billed through as attorney fees. See Case v. Unified School Dist. No. 233, 157 F.3d 1243, 1257 (10th Cir. 1998) (“Reasonable expenses incurred in representing a client in a civil rights case should be included in the attorney’s fee award if such expenses are usually billed in addition to the attorney’s hourly rate.”); see also Rule 1-054(D)(2)(b) (permitting the recovery of subpoena fees); Rule 1-054(D)(2)(d) (permitting the recovery of transcript fees); H-B-S P’ship v. Aircoa Hospitality Servs., Inc., 2008-NMCA-013, ¶ 27, 143 N.M. 404, 176 P.3d 1136 (holding that Rule 1-054(D)(2)(d) does not require advance approval of transcript requests in order for the cost to be recoverable).{63} The City also challenges the trial court’s award of mediation fees and deposi-tion costs. Section 1988 and Rule 1-054(D) are silent with regard to mediation costs. New Mexico trial courts are cautioned that “[c]osts generally are recoverable only as allowed by statute, Supreme Court rule[,] and case law,” Rule 1-054(D)(2), and “[w]e therefore expect . . . courts to exercise their discretion sparingly with regard to costs that are not specifically authorized.” H-S-B P’Ship, 2008-NMCA-013, ¶ 24. Neverthe-less, we conclude that the trial court was within its discretion to award ACP media-tion costs because the court “explain[ed] the circumstances justifying the award.” Id. (internal quotation marks and citation
48 Bar Bulletin - August 17, 2009 - Volume 48, No. 33
omitted). The trial court informed the par-ties that ACP was permitted to recover mediation fees because the mediation was court-ordered and because the City did not participate in the mediation with good faith. The trial court made a similar award for deposition costs and expenses. Although Rule 1-054(D)(2)(e) normally requires that depositions be used at trial or in a successful motion for summary judgment in order for the prevailing party to recover the costs, the trial court in the present case permitted the recovery of all deposition costs. The court explained that this was a complicated case and that the attorneys involved had to sift through a great deal of information in order to determine what testimony was relevant and not duplica-tive. The trial court noted that none of the depositions taken were unreasonable and as a result awarded all deposition costs under Rule 1-054. Under these circumstances, we see no abuse of discretion in the awards for mediation and deposition costs. See H-S-B P’Ship, 2008-NMCA-013, ¶ 28 (“Because the district court affirmatively explained its reasons justifying any deviation from Rule 1-054(D)(2), we affirm its allowance of the . . . costs.”).{64} In its final argument, the City contends that the trial court improperly allowed ACP to recover costs related to expert witnesses. The parties do not dispute that Section 1988 does not permit recovery for expert witnesses in Section 1983 ac-tions. See § 1988 (permitting the recovery of expert witness fees in proceedings to enforce the provisions of 42 U.S.C. §§ 1981 or 1981a (2000)—but omitting reference to Section 1983); see also James v. Sears,
Roebuck & Co., 21 F.3d 989, 995 (10th Cir. 1994) (“There must be an explicit statutory authorization before expert witness fees will be awarded.”). ACP characterized wit-nesses Phil Garcia and William Kraemer as paralegals and thereby recovered those costs under Section 1988. The City argues that these witnesses were experts, and costs are therefore not recoverable. The trial court did not permit ACP to recover for all of the work performed by these witnesses because some of the work was more akin to expert work than paralegal work. It was not contrary to logic and reason for the trial court to carefully examine the work done by these witnesses, conclude that some work was investigatory, and permit costs for that work. See Case, 157 F.3d at 1249 (applying Section 1988 and concluding that “[a]s to services provided by non-lawyers, if law clerk and paralegal services are . . . not reflected in the [attorney’s fee], the court may award them separately as part of the fee for legal services” (some alterations in original) (internal quotation marks and citation omitted)). Accordingly, we hold that the trial court did not abuse its discre-tion by permitting the recovery by ACP of the costs related to Garcia and Kraemer.{65} The City also objects to the recov-ery of costs for Rainhart, Dahlstrom, and Ricker. The trial court found that Rainhart and Ricker testified at trial as experts and that the City did not object. It was not therefore an abuse of discretion to allow ACP to recover costs for those experts. See NMSA 1978, § 38-6-4(B) (1983); Fernandez v. Española Pub. Sch. Dist., 2005-NMSC-026, ¶ 5, 138 N.M. 283, 119 P.3d 163 (acknowledging that a party may
recover costs for experts who testify in person or by deposition). We observe that Dahlstrom did not testify by deposition or in person at trial. Instead, ACP argues that it should recover costs for the time that Dahlstrom spent preparing an affidavit for a summary judgment motion. Generally, the preparation of an affidavit by an expert is insufficient to allow the recovery of costs for expert testimony under Rule 1-054(D)(2)(g). Pierce v. State, 121 N.M. 212, 231, 910 P.2d 288, 307 (1995). Nevertheless, the trial court questioned the parties about Dahlstrom’s work in this case and learned that the preparation of the affidavit required review of the entire, not insubstantial, re-cord. The trial court’s rationale described above, about the complicated nature of this case, also supports the decision to allow Dahlstrom’s work to be recovered as costs. As a result, the trial court concluded that the costs were reasonable and we agree. See H-S-B P’Ship, 2008-NMCA-013, ¶ 24 (“[C]ourts have the discretion to grant a prevailing party the necessary and reason-able costs incurred in litigating a case.”).III. CONCLUSION{66} We affirm the trial court and the jury verdict on the Section 1983 claim and the award of damages, costs, and fees, with the exception of the award of post-judgment interest. We remand the matter to the trial court for an entry of judgment consistent with this opinion.{67} IT IS SO ORDERED. CELIA FOY CASTILLO,
Judge
WE CONCUR:MICHAEL D. BUSTAMANTE, JudgeLYNN PICKARD, Judge Pro Tempore
Bar Bulletin - August 17, 2009 - Volume 48, No. 33 49
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