September 27, 2010 • Volume 49, No. 39 · 2017-05-31 · 6 Ba r Bu l l e t i n - September 27, 2010 - Volume 49, No. 39 no T i C e s With respect to opposing parties and their counsel:

Bar Bulletin - September 27, 2010 - Volume 49, No. 39 1

Inside This Issue

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September 27, 2010 • Volume 49, No. 39

Table of Contents ................................................. 5

New Mexico Supreme Court Committee/Board Vacancies ............................ 6

Second Judicial District Court Judicial Vacancy ...............................................7

Board of Bar Commissioners: 2010 Election Notice ....................................... 7

NMHBA 2010 Awards Banquet .......................... 9

Paralegal Division Celebrates 15 Years ................ 10

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

From the New Mexico Court of Appeals

2010-NMCA-080, No. 28,292: Republican Party of New Mexico v. New Mexico Taxation and Revenue Department ... 21

2010-NMCA-081, No. 28,875: Quintero v. New Mexico Department of Transportation ........................................... 27

Special Insert:

CLE Video Replay Tuesdays

February 27, 1919–February 25, 2006 by Matthew Lutz (see page 5) Matrix Fine Art, Albuquerque

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2 Bar Bulletin - September 27, 2010 - Volume 49, No. 39

Center for LegaL eduCationNew Mexico State Bar FouNdatioN

Now on Facebook and Twitter

TWO WAYS TO REGISTERINTERNET: www.nmbarcle.org FAX: (505) 797-6071, 24 hour access

Please Note: For all WEBCASTS, you must register online at www.nmbarcle.org

Name ___________________________________________________________________ NM Bar # _________________________________

Street ____________________________________________________________________________________________________________

City/State/Zip _____________________________________________________________________________________________________

Phone ____________________________________________________ Fax ____________________________________________________

E-mail ____________________________________________________________________________________________________________

Credit Card # ________________________________________________________________ Exp. Date ________________ CVV# ________________

Authorized Signature _______________________________________________________________________________________________

also available viaLIVE WEBCAST

2010 FAMILY LAW INSTITUTE Friday-Saturday, October 15-16, 2010

State Bar Center, Albuquerque10.0 General, 1.0 Ethics, & 1.0 Professionalism CLE Credits

r Standard Fee $339 r Family Law Section Member, Government, Legal Services Attorney, Paralegal $309Co-Sponsor: Family Law Section

FRIDAY, OCTOBER 15 8:00 a.m. Registration8:25 a.m. Introductory Remarks and Course Overview Lynn Perls, Esq, Chair, Family Law Section8:30 a.m. Uniform Parentage Act, Equitable Parentage,

Psychological Parentage Shannon Minter, Esq., Legal Director, National Center

for Lesbian Rights, San Francisco10:30 a.m. Break 10:45 a.m. National Trends in Custody and Parentage in

the Context of Unmarried Parents as well as Implications for Domestic Partners (Both Same Sex and Opposite Sex)

Shannon Minter, Esq.Noon Lunch (provided at the State Bar Center) Family Law Section Annual Meeting1:00 p.m. Stepparent Custody, Grandparent Custody,

Foster Parent Custody Ann N. Haralambie, Esq., Ann N. Haralambie, P.C.,

Tucson, Arizona3:00 p.m. Break3:15 p.m. Other Third Party Custody, Kinship

Guardianship, and Third Party Visitation Ann N. Haralambie5:00 p.m. Adjourn

SATURDAY, OCTOBER 168:30 a.m. Registration9:00 a.m. Child Support and Third Party Custody Presenter TBA10:00 a.m. Break10:15 a.m. Non-Traditional Families and Third Party

Custody: A Panel Discussion Larry Kronen, Esq., Pegasus Legal Services for Children Lynn Perls, Esq, Board Certified Specialist in Family

Law Professor Antoinette Sedillo Lopez, UNM School of

Law Shannon Minter, Esq.12:15 p.m. Lunch (provided at the State Bar Center)12:45 p.m. Professionalism (1.0 P) Professor Antoinette Sedillo Lopez1:45 p.m. Malpractice Issues for the Family Law Attorney

(1.0 E) John Bannerman, Esq., Bannerman & Johnson, P.A.

and Lawyers Professional Liability Committee2:45 p.m. Adjourn

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Center for LegaL eduCationNew Mexico State Bar FouNdatioN


TWO WAYS TO REGISTERINTERNET: www.nmbarcle.org FAX: (505) 797-6071, 24 hour access

Please Note: For all WEBCASTS, you must register online at www.nmbarcle.org

Name ___________________________________________________________________ NM Bar # _________________________________

Street ____________________________________________________________________________________________________________

City/State/Zip _____________________________________________________________________________________________________

Phone ____________________________________________________ Fax ____________________________________________________

E-mail ____________________________________________________________________________________________________________

Credit Card # ________________________________________________________________ Exp. Date ________________ CVV# ________________

Authorized Signature _______________________________________________________________________________________________

also available viaLIVE WEBCAST

2010 NEW MEXICO ADMINISTRATIVE LAW INSTITUTE Friday, October 22, 2010 • State Bar Center, Albuquerque

4.5 General, 1.0 Ethics, 1.0 Professionalism CLE Credits

r Standard Fee $209 r Public Law Member, Government, Legal Services Attorney, Paralegal $179

Co-Sponsor: Public Law Section

8:00 a.m. Registration8:25 a.m. Introductory Remarks and Course Overview James C. Martin, Chairman, Public Law Section8:30 a.m. New Mexico Administrative Law Update Professor Eileen Gauna, UNM School of Law9:45 a.m. Public Records Act, and Inspection of Public

Records Act John Martinez, Director, Administrative Law Division,

NM State Records Center and Archives Mona Valicenti, Assistant Attorney General,

NM Attorney General’s Office10:45 a.m. Break11:00 a.m. The New Model Administrative Procedures Act John Martinez, Director, Administrative Law Division,

NM State Records Center and Archives12:00 p.m. Lunch (provided at the State Bar Center) Public Law Section Annual Meeting

1:00 p.m. Panel Discussion: The Use and Practice of Alternative Dispute Resolution in Government

Moderator: Stephen Ross, County Attorney, County of Santa Fe

Panelists: William Herrmann, Chief Hearing Examiner, NM Public Regulation Commission

Darcy Bushnell, Utton Center Shannon Beaucaire, ADR Coordinator,

City of Albuquerque2:15 p.m. Ethical Issues in E-Discovery and Electronic

Record Retention (1.0 E) Victoria Garcia, General Counsel, Department of

Information Technology3:15 p.m. Break3:30 p.m. Professionalism: Pro Bono Practice and the

Public Sector (1.0 P) Hon. Sarah Singleton, First Judicial District Court4:30 p.m. Adjourn




MCLE Credit – Up to 4 hours of MCLE credit have been requested.Please check www.abanet.org/yld/fall10 for additional MCLE opportunities.

2010 ABA YLD Fall ConferenceOctober 14-16, 2010Eldorado Hotel & SpaSanta Fe, NM

Connect, Collaborate and Learn

Co-sponsored by

YOUNG LAWYERS DIVISION

For more information about registration or sponsorship opportunities, contact Martha Chicoski at [email protected],

or visit www.abanet.org/yld/fall10.

AMERICAN BAR ASSOCIATION

Young LawyersDivision

mailto:[email protected]

http://www.abanet.org/yld/fall10

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Table of ConTenTs

MeeTings

sepTeMber

27 Prosecutors Section BOD, 2 p.m., State Bar Center

oCTober

4 Attorney Support Group, 5:30 p.m., First United Methodist Church

6 Real Property, Trust and Estate Section BOD, 11:30 a.m., via teleconference

6 Employment and Labor Law Section BOD, noon, State Bar Center

8 Employment and Labor Law Section Annual Meeting, noon, State Bar Center

9 Ethics Advisory Committee, 10 a.m., State Bar Center

sTaTe bar Workshops

oCTober

4 Lawyer Referral for the Elderly Workshop 10:15–11:45 a.m., Presentation 1:30–4:30 p.m., Clinics Betty Ehart Senior Center, Los Alamos

21 Lawyer Referral for the Elderly Workshop 9:30–11:45 a.m., Presentation 1–5 p.m., Clinics Mary Ester Gonzales Senior Center, Santa Fe

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

noveMber

10 Estate Planning Workshop 6 p.m., State Bar Center, Albuquerque

Notices ................................................................................................................................................................6Board of Bar Commissioners: 2010 Election Notice .............................................................................7NMHBA 2010 Awards Banquet ....................................................................................................................9Paralegal Division Celebrates 15 Years .................................................................................................. 10Legal Education Calendar ......................................................................................................................... 11Writs of Certiorari ......................................................................................................................................... 13List of Court of Appeals’ Opinions ........................................................................................................... 15Clerk’s Certificates ......................................................................................................................................... 16Recent Rule-Making Activity ..................................................................................................................... 19Opinions


2010-NMCA-080, No. 28,292: Republican Party of New Mexico v. New Mexico Taxation and Revenue Department .............................................................................................. 21

2010-NMCA-081, No. 28,875: Quintero v. New Mexico Department of Transportation ..................................................................................................................................... 27

Advertising ..................................................................................................................................................... 34

Officers, Board of Bar Commissioners Stephen S. Shanor, President Jessica A. Pérez, President-Elect Hans Voss, Vice President Andrew J. Cloutier, Secretary-Treasurer Henry A. Alaniz, Immediate-Past President

Board of Editors Mark A. Glenn, Chair Danny W. Jarrett Kimberly L. Alderman Joan Marsan Joel McElroy Carson Kathryn Joy Morrow Cynthia A. Christ Steven K. Sanders Autumn Gray Kelly A. Thomas

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] Print Shop Manager Brian Sanchez Assistant Michael Rizzo Assistant Michael Schall

©2010, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.

The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

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

September 27, 2010, Vol. 49, No. 39

From the Cover Artist: Matthew Lutz is an artist and high school art teacher. His current series of floral oil paintings conveys the impact that one’s life, no matter how temporary or fragile, can make on others. Each bloom is unique and intricate, yet frail and impermanent. The title of each piece in the series is the birth date (and death date in some cases) of an individual whose beautiful existence is represented by the work. To see the cover art in its original color, visit www.nmbar.org and click on Attorneys/Members/Bar Bulletin.










noTiCes

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

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, domestic relations, 1978–1995 Nov. 5 (505) 455-8275 and children’s court

5th Judicial District Court Exhibits in civil cases 1992–2009 Oct. 1 County of Chaves Exhibits in criminal cases 1971–2009 Nov. 12 (575) 622-2565, x120

CourT neWsN.M. Supreme Court

Board 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.

Edward RiccoAppellate Practice

Proposed Rule RevisionsProposed Revisions to the Rules of Evidence The Rules of Evidence Committee is con-sidering whether to recommend proposed amendments to the Rules of Evidence for the Supreme Court’s consideration.Proposed Revisions to the Uniform Jury Instructions—Civil The Committee on Uniform Jury Instruc-tions for Civil Cases is considering whether to recommend proposed amendments to

the Uniform Jury Instructions—Civil for the Supreme Court’s consideration. To comment on the proposed amend-ments before they are submitted to the Court for final consideration, either submit a com-ment electronically through the Supreme Court’s website at http://nmsupremecourt.nmcourts.gov/ or send written comments to: Kathleen J. Gibson, Clerk New Mexico Supreme Court PO Box 848 Santa Fe, NM 87504-0848 Comments must be received by the clerk on or before Oct. 4 to be considered by the Court. Note that any submitted comments may be posted on the Supreme Court’s website for public viewing. For reference, see the Aug. 30 (Vol 49, No. 35) Bar Bulletin.

First Judicial District CourtNational Adoption Day The 1st Judicial District Court will celebrate National Adoption Day Nov. 19. Attorneys and clients with pending adop-tions in Santa Fe, Los Alamos or Rio Arriba who are interested in participating should contact Shannon Bulman, (505) 820-1014 or [email protected], for more information.

Supreme Court Committee/Board VacanciesCourts of Limited Jurisdiction 2Rules of Civil Procedure for the District Courts 3

Appellate Court Rules 3Rules of Evidence 1Uniform Jury Instructions-Civil 1Uniform Jury Instructions-Criminal 1Children’s Court Rules 2Domestic Relations Task Force 3Disciplinary Board 2MCLE 2Code of Professional Conduct 1Board of Legal Specialization 2Board Governing the Recording of Judicial Proceedings 1 court reporter member, 1 judge member 2

Code of Judicial Conduct 3Judicial Education and Training 1Drug Court Advisory Committee 3Committee for Improvement of Jury Service 3

Attorneys interested in volunteering on any of these committees/boards may send a letter of interest and/or resume by Oct. 22 to:

Kathleen Jo Gibson, Chief ClerkPO Box 848Santa Fe, NM 87504-0848.

Interested attorneys should describe why they believe they are qualified and shall prioritize no more than three committees of interest.

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ember benefit of the WeekMSecond Judicial District CourtJudicial Vacancy A vacancy on the 2nd Judicial District Court will exist in Albuquerque as of Dec. 1 upon the retirement of the Honorable Angela J. Jewell. Chief Judge Ted Baca has indicated he intends to assign the vacancy to the domestic relations division. Kevin K. Washburn, chair of the Nominating Commission, solicits applications for this position from lawyers who meet the statu-tory qualifications in Article VI, Section 14, of the New Mexico Constitution. Applica-tions may be obtained from the Judicial Selection website, http://lawschool.unm.edu/judsel/application.php, or via e-mail, fax, or mail by calling Sandra Bauman, (505) 277-4700. The deadline for applica-tions has been extended to 5 p.m., Oct. 18. Applications received after that date will not be considered. Applicants seeking information regarding election or retention if appointed should contact the Bureau of Elections in the Office of the Secretary of State. The Judicial Nominating Commission will meet Nov. 8 at the 2nd Judicial District Courthouse, Albuquerque, to evaluate the applicants for this position. The meeting is open to the public.

Fifth Judicial District CourtReassignment of CasesLea County Due to the retirement of the Honor-able Don Maddox, Division IV, all cases previously assigned to the Honorable Don Maddox will be reassigned to the Honorable James E. Templeman effective Sept. 1. Par-ties who have not previously exercised their rights to challenge or excuse will have until Oct.12 to challenge or excuse the newly assigned judge pursuant to Rule 1-088-1.

U.S. District Court for the District of New MexicoUsing Markup Tools In partnership with the U.S. District Court of New Mexico and the Federal Bar Association, a complimentary 90-minute training session on using PDF markup tools will be offered Oct. 5–6 in Albuquerque, Oct. 19–20 in Santa Fe, and Nov. 9–10 in Las Cruces. Session I 8:30–10 a.m. Session II 10:30 a.m.–noon Session III 1–2:30 p.m. Attendees will learn to use a variety of PDF tools to mark portions of exhibits iden-tified for the Court’s attention and meet the

board of bar Commissioners 2010 eleCtion notiCe Notice is hereby given that the 2010 election of six commissioners for the State Bar of New Mexico will be held Nov. 30, 2010. All six positions are three-year terms. Nominations to the office of bar commissioner shall be by the written petition of any ten or more members of the State Bar who are in good standing and whose principal place of practice is in the respective district. Members of the State Bar may nominate and sign for more than one candidate.

Nomination petitions must be received by 5 p.m., Oct. 16, to allow for the reproduction of the ballots. Mail nomination petitions to: Executive Director Joe Conte State Bar of New Mexico PO Box 92860 Albuquerque, NM 87199-2860

Expiring terms, the nomination petition, and more information are available in the Sept. 13 (Vol. 49, No. 37) Bar Bulletin or on-line at http://www.nmbar.org/AboutSBNM/Governance/governance.html.

New Mexico HealtH iNsuraNce alliaNce (NMHia)

NMHIA is a non-profit alliance of health insurance carriers that can provide

easy access to health insurance for small employers. Call today.

You have nothing to lose and health insurance to gain.

1-800-204-4700 or (505) 989-1600.www.nmhia.com.

requirements of the U.S. District Court for the District of New Mexico Local Civil Rule 10.6. “Identifying Portions of Exhibits: Us-ing Markup Tools to Correctly Mark PDF Documents” will be taught by Court staff and a trainer specializing in computer skills. To register online, go to www.nmcourt.fed.us. CLE credit is not available.

sTaTe bar neWsAttorney Support Group • Oct. 18, 7:30 a.m.–Morning groups

meet regularly on the third Monday of the month.

• Oct. 4, 5:30 p.m.–Afternoon groups meet regularly on the first Monday of the month.

Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, (505) 242-6845.

Children’s Law SectionAnnual Art Contest The Children’s Law Section is seeking partners for the eighth annual Children’s Law Section art and writing contest to take place in October. Donations will enable organizers to purchase canvas, art supplies, and prizes and to set up the exhibit. Mail donations by Sept. 30 to Children’s Law Section, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860. Donations are tax-deductible through the New Mexico State Bar Foundation (tax exempt number 85-0390079). For more in-formation, contact Chair Mia Chavez, [email protected] or (505) 841-5032.


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made at the orientation. Contact Keya Koul, [email protected], or Martha Chicoski, [email protected], by Sept. 27 to volunteer.Speed Networking Event The Young Lawyers Division is seeking volunteers to participate in a Speed Net-working Event from 5 to 7 p.m., Oct. 7, at the State Bar Center. This event will pair attorneys with UNM law students for speed networking, which involves people meeting each other one at a time for a short interval and then moving on to the next person in line. The goal is to create an environment other than a standard business event in which networking connections can be made. For more information or to participate, contact Keya Koul, [email protected], by Sept. 29.Will for Heroes The Young Lawyers Division seeks at-torney volunteers for a Wills for Heroes event from 9 a.m., to 2 p.m., Oct. 23, at the Rio Rancho Police Department, 500 Quantum Road, Rio Rancho. Attorneys will draft wills and healthcare powers of attorney, free of charge, for qualified first responders. No prior experience with wills or estate planning is needed. This is a great opportunity to honor first responders and provide a valuable service at the same time. Volunteers must have their own PC laptop computers (sorry no Macs), but everything else will be provided and supervised. For more information or to volunteer, contact Martha Chicoski, [email protected], by Oct. 15.

oTher barsAlbuquerque BarAssociationMember Luncheon and CLE The Albuquerque Bar Association’s member luncheon will be held at noon, Oct. 5, at the Embassy Suites Hotel, 1000 Woodward Pl. NE, Albuquerque. A forum will feature candidates for attorney general and the New Mexico Court of Appeals. The CLE (1.0 ethics and 1.0 profession-alism CLE credits) will immediately follow the luncheon from 1:15 to 3:15 p.m. Wendy York will moderate a judges panel on May It Peeve the Court: Further Observations from the Bench 2010 Update. Lunch only: $25 members/$35 non-members with reservations; lunch and CLE: $85 members/$115 non-members with reservations; CLE only: $60 members/$80

Visit the Children’s Law Section page at www.nmbar.org to see pictures of previous contests.

Employment and Labor Law SectionAnnual Meeting and CLE The Employment and Labor Law Section will hold its annual meeting during lunch, Oct. 8, at the 2010 Employment and Labor Law Institute at the State Bar Center. Send agenda items to Chair Aaron Viets, [email protected]. See the CLE-At-a-Glance insert in the Sept. 13 (Vol 49, No. 37) Bar Bul-letin for details. Register online at www.nmbarcle.org or fax to (505) 797-6071. Board Meeting The Employment and Labor Law Section board of directors welcomes section members to attend its meetings, which are usually held on the first Wednesday of each month. The next meeting will be held at noon, Oct. 6, at the State Bar Center. Lunch is provided to those who R.S.V.P. to [email protected]. For information about the section, visit the State Bar website, www.nmbar.org, or contact Chair Aaron Viets, (505) 766-7588 or [email protected].

Family Law SectionAnnual Meeting and CLE The Family Law Section will hold its annual meeting during lunch, Oct. 15, during the 26th Annual Law Institute. All section members are encouraged to attend. Send agenda items to Chair Lynn Perls, [email protected]. See the CLE-At-a-Glance insert in the Sept. 13 (Vol 49, No. 37) Bar Bulletin for details. Register online at www.nmbarcle.org or fax to (505) 797-6071.

Prosecutors Section Annual Meeting The Prosecutors Section will hold its annual meeting at noon, Oct. 27, at the State Bar Center. Pizza and drinks will be provided. Section members and prospective section members are welcome. Send agenda items to Chair Janice Schryer, [email protected].

Public Law SectionAnnual Meeting and CLE The Public Law Section will hold its annual meeting during lunch, Oct. 22, in conjunction with the Administrative Law Institute at the State Bar Center. All

section members are encouraged to attend. Send agenda items to Chair James Martin, [email protected]. See the CLE-At-a-Glance insert in the Sept. 13 (Vol 49, No. 37) Bar Bulletin for details. Register online at www.nmbarcle.org or fax to (505) 797-6071.

Young Lawyers Division2010 ABA YLD Fall Conference Join YLD to connect, collaborate and learn with approximately 300–350 ABA YLD members from across the country for the 2010 ABA YLD Fall Conference Oct. 14–16 at the El Dorado Hotel and Spa in Santa Fe. For more information about registration or sponsorship opportunities, contact Martha Chicoski, [email protected], or visit www.abanet.org/yld/fall10. Volunteers are needed for the “Serving Our Seniors Project” which will take place during the conference from noon to 4 p.m., Oct. 15, at Casa Real Health Care Center, 2961 Galisteo Street, Santa Fe. Volunteers will need to bring their own laptops, but all other materials will be provided. For more information or to volunteer, contact Roxanna Chacon, [email protected], by Oct. 4. 2010 Election All members of the State Bar who have practiced law for five years or less or are under the age of 36 are eligible to serve on the YLD board of directors. The following positions are currently available: director-at-large, position 2; director-at-large, position 4; region 2 director (1st, 4th, 8th, and 10th Judicial districts); region 3 director (5th and 9th Judicial districts); and region 4 director (3rd, 6th, and 12th Judicial districts and Sierra County). For more information and to obtain a nomination petition, visit www.nmbar.org, select About Us, Divisions, Young Lawyers and click on “Election” (http://www.nmbar.org/AboutSBNM/YLD/YLDelection.html). Petitions must be received in the State Bar office by 5 p.m., Oct. 15. Should any of the positions be contested, ballots will be mailed Oct. 25.Volunteers NeededMentorship Program The Young Lawyers Division is seeking volunteer attorneys to serve as mentors for law students during the 2010-2011 academic year. There will be a mandatory orientation/CLE (1.0 professionalism CLE credit) from 5 to 6:30 p.m., Oct. 4, at the UNM Law School. All matches will be















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http://www.nmbar.org/AboutSBNM/YLD/YLDelection.html





www.nmbar.org

non-members. Register for lunch by noon, Oct. 1.To register for luncheons: 1. log on to www.abqbar.org; 2. e-mail [email protected]; 3. fax to (505) 842-0287; 4. call (505) 842-1151 or

(505) 243-2615; or 5. mail to PO Box 40,

Albuquerque, NM 87103.

New Mexico Black Lawyers AssociationElectronic Evidence CLE The New Mexico Black Lawyers As-sociation will present Electronic Evidence: Can You Get It In? Can You Preserve It? (4.0 general, 1.0 professionalism, and 1.0 ethics CLE credit) Oct. 22 at the African American Performing Arts Center, New Mexico Expo. Speakers include Justice Edward L. Chávez, Christine Long, Randi McGinn, Judge Linda Vanzi, Kenny Calhoun, Regina Moss, Judge Robert Robles, Howard R. Thomas, and Michael Hoses. Register at http://www.newmexicoblacklawyersassociation.org/cle.html. For more information, call (505) 450-1032.

New Mexico Criminal Defense Lawyers AssociationWhite Collar Crime CLE The New Mexico Criminal Defense Lawyers Association’s will sponsor their 3rd Annual White Collar Crime CLE (5.5 general and 1.0 ethics CLE credits) Oct. 1 at the UNM Continuing Education Build-ing, Albuquerque. John Cline, co-author of the national association’s amicus brief in skilling, will be featured. Other present-ers include the Honorable Pat Murdoch; computer expert Jon Hill; Assistant Federal Public Defender Tom Jameson; Erlinda Johnson, defense lawyer in the Metropoli-tan courthouse; and former U.S. Attorney Greg Fouratt. Moderators Zach Ives and Peter Schoenburg have organized this series of panel discussions addressing such topics as the grand jury after Bort Jones, the new Holder memo on plea and sentencing policies, major changes in constitutional protections for represented defendants, and getting up to speed on digital evidence. See a the full schedule, list of speakers, and registration at www. nmcdla.org or call (505) 992-0050.

New Mexico Women’sBar AssociationReception The New Mexico Women’s Bar Associa-tion will host a reception Sept. 28, at the Hotel Andaluz, 125 2nd Street. Albuquer-que. Wine and hors d’ oeuvres will be served from 5:30 to 7:30 p.m. R.S.V.P. to Jeannie Hunt, [email protected], by Sept. 27. Information will be available at the recep-tion for those interested in serving on the board and/or becoming a member.

oTher neWsCenter for Civic ValuesMock Trial Coaches Needed Two attorneys are needed at Pojoaque High School in Santa Fe to provide legal expertise and coaching for the 2011 Gene Franchini High School Mock Trial program. The amount of time invested will be decided by the attorney and the teacher advisor, but teams usually meet at least once each week. Regionals are Feb. 25–26, and state finals are March 26–26. Your mission will be to help your team with the finer points of presenting

nmhba 2010 aWards banquetThe New Mexico Hispanic Bar Association held its 2010 Awards Banquet Sept. 16 at the Hispanic Cultural Center to honor its award recipients. Charles J. Vigil was presented the Outstanding Attorney Award, Antonia Roybal-Mack received the Outstanding Young Lawyer Award, and Hector Balderas received the Liberty and Justice Award. Lieutenant Governor Diane Denish delivered the keynote address. Charles Garcia was recognized for his efforts in chairing the 2009 HNBA National Convention held in Albuquerque last year.

Charles J. Vigil, Antonia Roybal-Mack, and Hector Balderas. Keynote speaker Lt. Gov. Diane Denish.

Antonia Roybal-Mack, and Charles Garcia.

Master of ceremonies Mary Torres.


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Paralegal Division members celebrated the 15-year anniversary of the division with lunch at Pappadeaux Seafood Kitchen on Aug. 28. The New Mexico Supreme Court created the State Bar of New Mexico Paralegal Division on Aug. 26, 1995. To recognize this notable anniversary, Aug. 26 was proclaimed “Paralegal Day in New Mexico,” and special certificates were prepared for active members of the division and signed by New Mexico Supreme Court Justice Charles W. Daniels. Pictured above: (top) Tony Garcia, Virginia Jackson, prospective member Cat Carrasco, Linda Murphy; (middle) Barbara Lucero, Kay Homan, Evonne Sanchez, prospective member Krista Gianes; (bottom) Bentley Clark, Andrew Polnett, Sheila McGlothin, Robin Gomez. More pictures of attendees can be found on the division’s website at http://www.nmbar.org/AboutSBNM/ParalegalDivision/2010ParalegalDay.html.

Paralegal division Celebrates 15 Yearstheir case before panels of judges and jurors. Information about the role and responsibili-ties of an attorney coach is available on the “Tips and Advice” pages in the mock trial sec-tion of the Center for Civic Values’ website at www.civicvalues.org. If you have a few hours a week to devote toward helping to provide an outstanding educational experience to New Mexico high school students or would like to know more, contact Michelle Giger, (505) 764-9417, ext. 11.

Christian Legal Aid New Volunteer Training Christian Legal Aid of New Mexico will host a seminar for new volunteers from 11 a.m. to 5 p.m., Oct. 29, at the State Bar Center. Volunteers are invited to join the organization to help secure justice for the poor and uphold the cause of the needy. Learn the basics of providing legal aid and enjoy a free lunch. For more information or to register, contact Jen Meisner, (505) 610-8800 or [email protected].

N.M. Foundation for Open Government2010 Dixon Dinner The 2010 Dixon Dinner will be held Oct. 8 at Embassy Suites in Albuquerque. A reception will begin at 6 p.m. with dinner at 7 p.m. The William S. Dixon First Amendment Freedom Award will be presented to five recipients, including media law attorney Hal Simmons. The dinner will celebrate 20 years of promoting government transparency in New Mexico and honor the men and women who have embraced and advanced that cause. Event tickets are just $60. Visit nmfog.org to register.

Photos by Kathleen Campbell


http://www

http://www.civicvalues.org



legal education

G = General E = Ethics

P = Professionalism VR = Video Replay Programs have various sponsors; contact appropriate sponsor for more information.

27 Lawyer Substance Abuse Addictions: Causes and Results

Teleconference TRT, Inc. 1.0 E, 1.0 P 1-800-672-6253 www.trtcle.com

SeptemBer

28 Art of the Debt Deal for Startup and Growth Companies

Teleseminar Center for Legal Education of

NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

29 Art of the Debt Deal for Middle Market Companies



1 2010 Fall Elder Law Institute State Bar Center Center for Legal Education of

NMSBF 5.5 G, 1.0 P (505) 797-6020 www.nmbarcle.org

1 Third Annual White Collar Crime Symposium

Albuquerque New Mexico Criminal Defense

Lawyers Association 5.5 G, 1.0 E nmcdla.org [email protected] or (505) 992-0050

1 What Civil Court Judges Want You to Know

Roswell NBI, Inc. 6.0 G 1-800-930-6182 www.nbi-sems.com

octoBer

30 Art of Self-Awareness Taos Grove Burnett Vallecitos Mountain Ranch 3.0 E, 2.0 P (575) 751-9613

5 2009 Craig Othmer Memorial Procurement Code Institute

VR–State Bar Center Center for Legal Education of

NMSBF 3.0 G, 1.0 E (505) 797-6020 www.nmbarcle.org

5 Forensic Accounting VR–State Bar Center Center for Legal Education of


5 Pre-Mortem Estate and Trust Disputes



5 Putting Your Best Face on a Case VR–State Bar Center Center for Legal Education of

NMSBF 4.7 G, 1.0 E, 1.0 P (505) 797-6020 www.nmbarcle.org

6 Foreclosure and Loan Workout Procedures

Albuquerque NBI, Inc. 5.0 G, 1.0 E 1-800-930-6182 www.nbi-sems.com

7 2010 Health Law Symposium State Bar Center Center for Legal Education of


8 2010 Employment and Labor Law Institute

State Bar Center Center for Legal Education of


8 When Prosecutors Test the Outer Limits


http://www.trtcle.com





http://www.nbi-sems.com





http://www.nbi-sems.com





legal education www.nmbar.org

11 Lawyer Substance Abuse Addictions: Causes and Results


12–13 Basics of Fiduciary Income Tax, Parts 1 and 2



13 Investigating the Discrimination Claim

State Bar Center Paralegal Division 1.0 G (505) 247-0411 or (505) 222-9356

13 Workers’ Compensation to Social Security

Morning Session: Assisting Clients to Avoid the Holes in the Social Safety Net (2.7 G)

Afternoon Session: Representing Claimants in Social Security Disability Appeals (3.4 G)


NMSBF (505) 797-6020 www.nmbarcle.org

15–16 2010 Family Law Institute State Bar Center Center for Legal Education of


19 2010 Americans With Disabilities Act Update



19 25th Annual Bankruptcy Year in Review (2010)

VR Center for Legal Education of


19 ABCs of Foreclosure Law (2010) VR Center for Legal Education of


19 Multitasking Gone Mad: Learning to Cope in a Wired, Demanding World (2010)


NMSBF 4.2 G, 1.2 E (505) 797-6020 www.nmbarcle.org

21 Art of Self-Awareness Taos Grove Burnett Vallecitos Mountain Ranch 3.0 E, 2.0 P (575) 751-9613

21 Best Practices and Ethics in Adult Guardianship Law

Teleconference TRT, Inc. 1.0 G 1.0 E 1-800-672-6253 www.trtcle.com

21 Real Estate Finance: Sources of Capital



22 New Mexico Administrative Law Institute



26 Animal Law: Legislation, Litigation, Ethics, and Professionalism (2010)



26 DigitalWorkflow:Developingthe Paperless Habit (Debbie Foster)

(2010 Annual Meeting) VR Center for Legal Education of


26 Innocent Spouse Defense Teleseminar Center for Legal Education of


26 Skeptically Determining the Limits of Expert Testimony and Evidence (2010)



26 The Travelling Lawyer (Jim Calloway) (2010 Annual Meeting)



26 Winning Demonstrative Exhibits (David Gross)

(2010 Annual Meeting) VR Center for Legal Education of





















Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

effeCTive sepTeMber 27, 2010

WritS of certiorari

aS updated By the clerk of the neW mexico Supreme court

petitionS for Writ of certiorari filed and pending: Date Petition FiledNO. 32,607 Kavel v. Romero (12-501) 9/16/10NO. 32,606 State v. Clymo (COA 30,005) 9/15/10NO. 32,605 State v. Franco (COA 30,028) 9/15/10NO. 32,604 Cox v. NM Dept of

Public Safety (COA 28,658) 9/15/10NO. 32,603 Holguin v. Fulco Oil (COA 29,149) 9/15/10NO. 32,602 State v. Marez (COA 30,233) 9/14/10NO. 32,600 State v. Williams (COA 30,472) 9/14/10NO. 32,599 State v. Saiz (COA 30,385) 9/14/10NO. 32,598 State v. Judd (COA 30,321) 9/14/10NO. 32,601 Rivera v. Rivera (COA 29,511 9/13/10NO. 32,594 Smith v. Durden (COA 28,896) 9/13/10NO. 32,593 National Union v.

UNM Board of Regents (COA 28,960) 9/9/10NO. 32,587 State v. Rodriguez (COA 30,451) 9/9/10NO. 32,589 State v. Ordunez (COA 28,297) 9/8/10NO. 32,588 State v. Gutierrez (COA 30,180) 9/8/10NO. 32,585 Fliss v. Blakes Lotaburger (COA 29,166) 9/7/10NO. 32,534 Bustos v. Hyundai Motor

Company (COA 28,240) 9/3/10NO. 32,584 State v. Oryem (COA 30,306) 9/2/10NO. 32,582 State v. Reyes (COA 30,151) 9/1/10NO. 32,580 State v. Galvan (COA 29,950) 8/31/10NO. 32,577 May v. DCP

Midstream, LP (COA 29,331/29,490) 8/30/10 Responsefiled9/14/10NO. 32,576 State v. Bau (COA 30,357) 8/30/10NO. 32,575 State v. Romero (COA 30,330) 8/30/10NO. 32,574 Dunworth v. Jesionowski (COA 29,080) 8/30/10NO. 32,568 City of Aztec v. Groh (COA 29,951) 8/30/10NO. 32,572 State v. Lucero (COA 29,268) 8/27/10NO. 32,569 Duran v. Jaramillo (12-501) 8/27/10 Response due 9/29/10 by extnNO. 32,347 Shaffar v. Williams (12-501) 8/27/10 Response due 9/29/10NO. 32,567 Ghaffari v. Benard (COA 29,917) 8/26/10NO. 32,563 State v. Kucera (COA 29,458) 8/24/10NO. 32,562 State v. Grier (COA 27,947) 8/23/10NO. 32,561 City of Las Cruces v. Villa (COA 29,456) 8/23/10NO. 32,560 Kemper v.

Lithia of Santa Fe (COA 30,277) 8/20/10NO. 32,553 State v. Botello (COA 26,997) 8/16/10 Response due 9/24/10NO. 32,548 State v. Robles (COA 30,118) 8/12/10NO. 32,510 State v. Swick (COA 28,316) 7/22/10 Supp’l brief due 9/30/10

certiorari granted But not yet SuBmitted to the court:(Parties preparing briefs) Date Writ IssuedNO. 32,012 State v. Trujillo (COA 28,412) 11/18/09NO. 32,234 State v. Trujillo (COA 29,870) 3/10/10NO. 32,243 Farmers Insurance Co

of Arizona v. Chen (COA 28,859) 4/1/10NO. 32,175 Kittell v. Lovett (COA 29,693) 4/1/10NO. 32,263 State v. Williams (COA 28,034) 4/1/10NO. 32,291 State v. Torres (COA 29,603) 4/23/10NO. 32,320 State v. Vasquez (COA 29,800) 5/5/10NO. 32,341 Herzog v. Griego (COA 20,224) 5/5/10NO. 32,342 Bonney v. Herzog (COA 20,227) 5/5/10NO. 32,302 Lion’s Gate Water v.

NM State Engineer (COA 28,630) 6/2/10 (On rehearing)NO. 32,340 Rivera v.

American General (COA 28,691) 6/2/10NO. 32,344 Provencio v. Wenrich (COA 28,882) 6/2/10NO. 32,360 State v. Figueroa (COA 28,798) 6/2/10NO. 32,374 State v. Nevarez (COA 28,599) 6/2/10NO. 32,376 Ehrenreich v. Malzahn (COA 29,835) 6/2/10NO. 32,379 State v. Luchetti (COA 28,447) 6/2/10NO. 32,388 State v. Harper (COA 27,830) 6/2/10NO. 32,402 State v. Harper (COA 27,830) 6/24/10NO. 32,311 Rodriguez v. Permian

Drilling Corp. (COA 29,435) 6/24/10NO. 32,425 State ex rel. CYFD v.

Michael C (COA 29,394) 7/16/10NO. 32,444 State v. Stanley (COA 28,288) 7/16/10NO. 32,456 State ex rel. CYFD v.

Sarah B. (COA 29,169/29,203) 7/16/10NO. 32,430 State v. Muqqddin (COA 28,474) 8/2/10NO. 32,489 City of Rio Rancho v.

Cloudview Estates (COA 29,510) 8/2/10NO. 32,488 High Mesa General

Partnership v. Patterson (COA 28,802) 8/2/10NO. 32,436 Estate of Jaramillo v.

Meteor Monument (COA 28,799) 8/9/10NO. 32,486 City of Rio Rancho v.

Amrep (COA 28,709) 8/10/10NO. 32,447 Mendoza v.

Tamaya Enterprises (COA 28,809) 8/10/10NO. 32,483 State v. Jackson (COA 28,657) 8/19/10NO. 32,505 Charley v.

Franklin Corporation (COA 28,876) 8/30/10NO. 32,524 Republican Party v.

Tax & Revenue Dept. (COA 28,292) 8/30/10NO. 32,542 Quintero v. Department

of Transportation (COA 28,875) 8/31/10NO. 32,545 State ex rel. CYFD v.

Octavio F. (COA 29,469) 9/2/10NO. 32,532 Gutierrez v. Hatch (12-501) 9/15/10NO. 32,571 State v. Cunningham (COA 27,884) 9/15/10


WritS of certiorari http://nmsupremecourt.nmcourts.gov.

certiorari granted and SuBmitted to the court:

(Submission = date of oral argument or briefs-only submission) Submission DateNO. 31,602 Allstate Ins. Co. v. Guest (COA 27,253) 12/14/09NO. 31,603 Guest v. Allstate Ins. Co. (COA 27,253) 12/14/09NO. 31,100 Allen v. LeMaster (12-501) 2/15/10NO. 31,723 State v. Mendez (COA 28,261) 2/16/10NO. 31,724 Albuquerque Commons v.

City of Albuquerque (COA 24,026/24,027/24,042/24,425) 2/22/10

NO. 31,738 State v. Marlene C. (COA 28,352) 3/22/10NO. 31,656 State v. Rivera (COA 25,798) 4/13/10NO. 31,015 State v. Demongey (COA 26,453) 4/15/10NO. 32,001 Oldham v. Oldham (COA 28,493) 5/10/10NO. 31,567 State v. Guthrie (COA 27,022) 5/11/10NO. 32,065 Romero v. Progressive

Northwestern Ins Co. (COA 28,720) 5/11/10 (On rehearing)NO. 31,909 State v. Rudy B. (COA 27,589) 5/12/10NO. 32,099 Wachocki v. Bernalillo

Co. Sheriff’s Dept. (COA 27,761) 7/19/10NO. 32,131 Wachocki v. Bernalillo

Co. Sheriff’s Dept. (COA 27,761) 7/19/10NO. 32,063 Jordan v. Allstate

Insurance Co. (COA 28,638) 7/29/10 (On rehearing)NO. 32,203 Lucero v. Trujillo (COA 29,859) 7/29/10NO. 32,139 San Juan Ag. Water

Users Assn. v. KNME-TV (COA 28,473) 8/9/10NO. 31,980 Northwest Villages LLC v.

Martinez (COA 29,743) 8/25/10NO. 32,149 State v. Sandoval (COA 28,437) 8/30/10NO. 31,891 State v. Gonzales (COA 29,297) 9/14/10NO. 32,126 State v. Myers (COA 26,837) 9/14/10

NO. 32,044 State v. Episcopo (COA 29,328) 9/21/09NO. 32,202 Summers v.

Ardent Health Services (COA 28.605) 10/12/10 (On rehearing)NO. 32,069 State v. Martinez (COA 28,665) 10/13/10NO. 32,137 State v. Skippings (COA 28,324) 10/13/10NO. 32,170 State v. Ketelson (COA 29,876) 10/13/10NO. 32,130 State v. Cruz (COA 27,292) 10/14/10NO. 32,324 Allen v. Paptheofanis (COA 28,079) 10/14/10NO. 32,339 McPeek v. Hubbard (COA 27,424) 10/14/10NO. 31,791 State v. Atcitty (COA 27,189/27,940/27,333) 10/25/09NO. 32,092 State v. Trujillo (COA 27,291) 10/27/10NO. 32,094 State v. Flores (COA 27,647) 10/27/10

petition for Writ of certiorari denied:

NO. 32,533 Sosaya v. LeMaster (12-501) 9/8/10NO. 32,468 Saavedra v. LeMaster (12-501) 9/9/10NO. 32,549 State v. Owens (COA 28,770) 9/9/10NO. 32,556 Hendy v. Hickson (12-501) 9/9/10NO. 32,528 Clark v. Romero (12-501) 9/13/10NO. 32,552 State v. Judd (12-501) 9/13/10NO. 32,522 State v. Carrera (COA 28,712) 9/15/10NO. 32,559 State v. Nez (COA 26,811) 9/15/10NO. 32,564 Richards v. Developmental

Disabilities Planning (COA 30,288) 9/15/10NO. 32,565 Larsen v.

Board of Education (COA 28,428) 9/16/10NO. 32,566 Larsen v.

Board of Education (COA 28,429) 9/16/10NO. 32,578 Escudero v. Hickson (12-501) 9/16/10NO. 32,590 Sweat v. State of New Mexico (12-501) 9/16/10

http://nmsupremecourt.nmcourts.gov


Published OPiniOns

NO. 29528 3rdJudDistDonaAnaCR-08-1554,STATEvRSTARCESKI(affirm) 9/14/2010NO. 29529 3rdJudDistDonaAnaCR-08-1555,STATEvKYAW(affirm) 9/14/2010

unPublished OPiniOns

NO. 29093 11thJudDistSanJuanLR-08-65,STATEvJWILLIAMS(affirm) 9/13/2010NO. 30129 11thJudDistSanJuanJR-09-140,STATEvNEHEMIAHL(affirm) 9/15/2010NO. 30295 9thJudDistRooseveltCR-09-57,STATEvVMORENO(affirm) 9/15/2010NO. 30382 2nd Jud Dist Bernalillo CR-09-1838, STATE v E DOMINGUEZ-MERAZ (reverse) 9/15/2010NO. 30424 8thJudDistColfaxJQ-08-3,CYFDvCRYSTALA(affirm) 9/15/2010NO. 30515 6th Jud Dist Luna CV-07-443, C LIMBERG v W EVERHART (dismiss) 9/15/2010

Gina M. Maestas, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925


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

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


clerk’S certificateSfrom the neW mexico Supreme court

Clerk’s CertifiCate DateD september 1, 2010

Clerk’s CertifiCate Of name, address, and/Or

telePhOne Changes

David P. BartonN.M. Public Regulation CommissionPO Box 12691120 Paseo de Peralta (87501)Santa Fe, NM 87504-1269505-827-4645505-827-4724 (fax)[email protected]

Jacqueline BennettJacqueline Bennett LLCPO Box 849303 N. AlamedaLas Cruces, NM 88004-0849575-527-0225575-526-1098 (fax)[email protected]

Marguerite Louise CarrOffice of the District Attorney221 W. Victory Way, #302Craig, CO 81625970-824-7041970-824-9190 (fax)[email protected]

Jay R. CombsOffice of the U.S. Attorney101 East Park Boulevard, Suite 500Plano, TX 75074972-509-1201972-509-5434 (fax)[email protected]

Andrew Bradley CurtisCraig, Terrill, Hale & Grantham LLC9816 Slide Road, Suite 201Lubbock, TX 79424806-744-3232806-744-2211 (fax)[email protected]

Roger C. DavieRoger Davie, P.C.1801 N. Stanton StreetEl Paso, TX 79902915-838-1100915-532-8777 (fax)[email protected]

Anna Sibylle EhresmannPO Box 56773Albuquerque, NM [email protected]

Harvey B. FrumanCozen O’Connor850 Old Santa Fe TrailSanta Fe, NM 87505505-820-3346505-820-3347 (fax)[email protected]

A. Drew Hoffman34b Beulah AvenueRothesay BayNorth Shore City 0630New [email protected]

Tila Fleming Hoffman34b Beulah AvenueRothesay BayNorth Shore City 0630New [email protected]

Evi M. LiconaLaw Office of Evi M. Licona307 North 3rd Street, Suite 5Yakima, WA 98901509-454-5010509-454-5011 (fax)[email protected]

Ashley Gauthier MessengerNPR635 Massachusetts Ave, NWWashington, DC [email protected]

Jennifer L. PadgettOffice of the District AttorneyPO Box 2041327 Sandoval Street (87501)Santa Fe, NM 87504-2041505-827-5000 Ext. 11136505-827-5076 (fax)[email protected]

Brett D. ParkerHamberger & Weiss350 Main Street, Suite 700Buffalo, NY 14202-3750716-852-5200 Ext. [email protected]

Hon. John M. PaternosterEighth Judicial District Court1413 S. 2nd StreetRaton, NM 87740575-445-5585575-445-2626 ( fax)

Sabrina PricePrice & Associates LLC17220 N. Bosewell Blvd, #103Sun City, AZ [email protected]

Chad R. Prososki655 1st Avenue North, #410Fargo, ND 58102

Edward B. Reinhardt, Jr.2917 Carlisle, NE, Suite 1073167 San Mateo, NE, #363Albuquerque, NM [email protected]

Steven K. RendellGust Rosenfeld, P.L.C.One East Washington, #1600Phoenix, AZ 85004-2553602-257-7421602-254-4878 (fax)[email protected]

Fermin A. RubioPO Box 2373Mesilla Park, NM [email protected]

Justin R. SawyerSutin, Thayer & Brownen PCPO Box 19456565 Americas Parkway, NE, Suite 1000Albuquerque, NM 87103-1945505-883-3415505-855-9588 (fax)[email protected]

David Carlson SmithDavid Carlson Smith PC215 Lincoln Avenue, #105Santa Fe, NM 87501505-988-8668505-820-2200 (fax)[email protected]

Brett Andrew SteinbookConstantine & Associates PCPO Box 906377850 Jefferson Street, NE, Suite 140 (87109-4315)Albuquerque, NM 87199-0637505-244-0011505-244-0020 (fax)[email protected]

Pam StokesN.M. Legislative Council Service490 Old Santa Fe Trail, #411Santa Fe, NM 87501505-986-4600505-986-4680 (fax)[email protected]

Jane Thompson TabetPO Box 7038Albuquerque, NM 87194-7038505-280-6706505-843-7138 (fax)[email protected]

Amber TrainTrain Law Firm LLC215 West San Francisco Street, Suite 201ASanta Fe, NM [email protected]

Jonathan Tsosie3260 Henry Hudson Parkway, #4HBronx, NY [email protected]

Alisa R. Wigley-DeLaraGuebert Bruckner PCPO Box 938806801 Jefferson Street, NE, Suite 400 (87109-4390)Albuquerque, NM 87199-3880505-823-2300505-823-9600 (fax)[email protected]




























clerk’S certificateS http://nmsupremecourt.nmcourts.gov.

Clerk’s CertifiCate Of name, address, and/Or

telePhOne Changes

Ana Andzic-TomlinsonPO Box 4623Albuquerque, NM [email protected]

Hon. Christina Pete ArgyresBernalillo County Metropolitan CourtPO Box 133401 Roma, NWAlbuquerque, NM 87103-0133505-841-8291505-222-4815 (fax)

Neil R. BellKeleher & McLeod, PAPO Drawer AA201 Third Street, NW, #1200Albuquerque, NM 87103505-346-4646505-346-1370 (fax)

Joshua D. BooneLaw Office of Kelley & Boone800 Lomas Boulevard, NW, # 100Albuquerque, NM 87102505-242-2676505-243-0949 (fax)

David G. CrumNew Mexico Legal Group PC800 Lomas Boulevard, NW, #201Albuquerque, NM 87102505-843-7303505-244-8731 (fax)[email protected]

Mary Anne D’Arcangelis620 Roma, NWAlbuquerque, NM 87102505-243-1223505-246-2668 (fax)[email protected]

Leonard J. DeLayo, Jr.Leonard J. DeLayo, Jr., P.C.817 Gold Avenue, SWAlbuquerque, NM [email protected]

Jacob Adam GallegosU.S. Environmental Protection Agency, Region 6Air Enforcement Branch (6RC-EA)1445 Ross Avenue, # 1200Dallas, TX 75202214-665-9798214-665-3177 (fax)[email protected]

Amanda Renee Garcia4935 Junius Street, Apt. 4Dallas, TX [email protected]

Fred A. HelmsThe Law Office of Fred Helms11411 Ranch Road 620 NorthAustin, TX 78726-1108512-258-9071512-354-7456 (fax)[email protected]

Nancy M. HewittN.M. Human Services DepartmentChild Support Enforcement Division39A Plaza La PrensaSanta Fe, NM 87507505-476-9591505-476-6265 (fax)[email protected]

R. Linda Riley JamesLinda Riley James, Attorney at Law, L.L.C.PO Box 1797211 W. Mesa Avenue, #1 (87301)Gallup, NM 87305-1797505-722-3920505-722-3920 (fax)[email protected]

Martha Jean KaserNew Mexico Legal Group PC800 Lomas Boulevard, NW, #201Albuquerque, NM 87102505-843-7303505-244-8731 (fax)[email protected]

John R. KelleyLaw Office of Kelley & Boone800 Lomas Boulevard, NW, Suite 100Albuquerque, NM 87102505-242-2676505-243-0949 (fax)

Stephen D. KovachPO Box 13943Las Cruces, NM [email protected]

Amanda LuceroOrraj, Anderson & Obrey-Espinoza500 Marquette, NW, # 525Albuquerque, NM 87102505-248-3509505-246-2924 (fax)[email protected]

Carolyn T. Lumbard1418 Fairway Village DriveLas Cruces, NM [email protected]

Vincent MasterN.M. Legal Aid, Inc.PO Box 1087200 W. 1st Street, # 200 (88203-4673)Roswell, NM 88202-1087575-623-9669575-623-3083 (fax)[email protected]

Rebecca Anne ParishN.M. Human Services DepartmentChild Support Enforcement Division39 Plaza La Prensa, Suite ASanta Fe, NM 87507-9727505-476-9590505-476-6265 (fax)[email protected]

Cynthia M. PayneNew Mexico Legal Group PC800 Lomas Boulevard, NW, Suite 201Albuquerque, NM 87102505-843-7303505-244-8731 (fax)[email protected]

Krista PietschmanModrall, Sperling, Roehl, Harris & SiskPAPO Box 2168500 Fourth Street, NW, #1000 (87102)Albuquerque, NM 87103-2168505-848-1888505-449-2088 (fax)[email protected]

Lorili J. PowellCooper Castle Law Firm LLC5275 S. Durango DriveLas Vegas, NV [email protected]

Jeff Rein4911 14 Street, NWAlbuquerque, NM [email protected]

James Heard ReynoldsReynolds Law Firm PCPO Box 349707 W. Market StreetSilver City, NM 88062-0349575-538-3431575-538-3066 (fax)[email protected]

Jessica C. RothNew Mexico Legal Group PC800 Lomas Boulevard, NW, Suite 201Albuquerque, NM 87102505-843-7303505-244-8731 (fax)[email protected]

Elizabeth A. RyanMark W. Taylor & Associates PCPO Box 898605 W. Country Club RoadRoswell, NM 88202-0898575-624-2000575-624-0200 (fax)[email protected]

Winter Leigha Torres4030 Wyandot StreetDenver, CO [email protected]

Clerk’s CertifiCate DateD september 14, 2010


































clerk’S certificateS http://nmsupremecourt.nmcourts.gov.

Clerk’s CertifiCate Of reinstatement tO aCtive status

As of August 27, 2010:Shana Siegel Baker1701 Old Pecos TrailSanta Fe, NM 87505

As of August 27, 2010:Joshua Michael Barasch9624 Rosas Avenue, NEAlbuquerque, NM 87109

Effective September 1, 2010:Angela Therese Delorme-Gaines14247 Pikeminnow PlaceBroomfield, CO 80023

As of August 27, 2010:Marcia J. DennyPO Box 3323Safat 13034 Kuwait

As of June 30, 2010:Robert J. Labate4421 Florence AvenueDowners Grove, IL 60515-3128

As of August 27, 2010:Mary W. RosnerPO Box 241Las Cruces, NM 88004-0241

As of August 27, 2010:Marsha Zenderman5289 Mesa Del Oso Road, NEAlbuquerque, NM 87111

Clerk’s CertifiCate Of admissiOn

On August 23, 2010:Junilla J. KershnerFowler White Burnett PA1395 Brickell Avenue, 14th FloorMiami, FL 33131305-777-9327305-728-7557 (fax)[email protected]

On August 31, 2010:James A. RayKeller & Keller2850 North Meridian StreetIndianapolis, IN 46208317-926-1111317-926-1411 (fax)

Clerk’s CertifiCate Of reinstatement

tO inaCtive status

As of September 7, 2010:Donald Lowrey6763 Bastille AvenueLas Vegas, NV 89130

Clerk’s CertifiCate Of Change

tO inaCtive status

Effective August 12, 2010:Rachel Michelle Darby110 Richmond Dr. SE, #304Albuquerque, NM 87106-2274

Clerk’s CertifiCate Of WithdraWal frOm

membershiP in the state bar Of neW mexiCO

Effective September 9, 2010:Nettie M. Griffin308 East 17 LanePortales, NM 88310

in memOriam

As of August 18, 2010:Anthony P. MartinezPO Box 27437Albuquerque, NM 87125-7437

As of August 5, 2010:Theodore L. RaffP.O. Box 1078Los Lunas, NM 87031-1078

As of June 26, 2010:Fred C. Tharp, Jr.P.O. Box 970Clovis, NM 88102-0970

Emma Lorraine WhitleyNew Mexico Legal Group PC800 Lomas Boulevard, NW, Suite 201Albuquerque, NM 87102505-843-7303505-244-8731 (fax)[email protected]

Aimee Martuccio WhitsellMiller StratvertPAPO Box 25687500 Marquette, NW, #1100 (87102)Albuquerque, NM 87125-0687505-842-1950505-243-4408 (fax)[email protected]

Novaline D. WilsonNavajo NationWindow Rock Judicial District CourtPO Box 363Window Rock, AZ 86515-0363928-871-7564928-871-7560 (fax)








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


Pending PrOPOsed rule Changes OPen fOr COmment

Comment Deadline11-804 Hearsay exceptions; declarant unavailable.

(Rules of Evidence) 10/04/1013-1647 Negligence in [hiring] [supervising] [retaining]

an employee.(UJI–Civil) 10/04/10

reCently aPPrOved rule Changes sinCe release Of 2010 nmra

Effective Date

ruleS of civil procedure for the diStrict courtS

1-079 Public inspection and sealing of court records. 07/01/10

1-071.1 Statutory stream system adjudication suits; service and joinder of water rights claimants; responses. 06/08/10

1-071.2 Statutory stream system adjudication suits; stream system issue and expedited inter se proceedings. 06/08/10

1-071.3 Statutory stream system adjudication suits; annual joint working session. 06/08/10

1-071.4 Statutory stream system adjudication suits; ex parte contacts; general problems of administration. 06/08/10

1-071.5 Statutory stream system adjudication suits; excusal or recusal of a water judge. 06/08/10

ruleS of civil procedure for the magiStrate courtS

2-112 Public inspection and sealing of court records. 07/01/102-105 Assignment and designation of judges. 05/14/10

ruleS of criminal procedure for the metropolitan courtS


civil formS

4-102 Certificateofexcusalorrecusal. 05/14/104-103 Notice of excusal. 05/14/104-104 Notice of recusal. 05/14/10

ruleS of criminal procedure for the diStrict courtS

5-605 Jury trial. 11/30/095-704 Death penalty; sentencing. 11/30/095-123 Public inspection and sealing of court records. 07/01/105-302A Grand Jury Proceedings. 05/14/10

ruleS of criminal procedure for the magiStrate courtS

6-114 Public inspection and sealing of court records. 07/01/106-105 Assignment and designation of judges. 05/14/10

ruleS of criminal procedure for the metropolitan courtS

7-113 Public inspection and sealing of court records. 07/01/107-201 Commencement of action. 05/10/107-504 Discovery; cases within metropolitan

court trial jurisdiction. 05/10/10

ruleS of procedure for the municipal courtS


criminal formS

9-218 Target notice. 05/14/109-219 Grand jury evidence alert letter. 05/14/10

children’S court ruleS and formS

10-424 Advice of rights by judge. 08/30/1010-425 Consent decree. 08/30/1010-456A Affidavitofindigency;abuseorneglect. 08/30/1010-166 Public inspection and sealing of court records. 07/01/1010-313.1 Representation of multiple siblings. 05/10/10

ruleS of appellate procedure

12-213 Briefs. 04/12/1012-214 Oral argument. 04/12/1012-305 Form of papers prepared by parties. 04/12/1012-314 Public inspection and sealing of court records. 07/01/1012-607 Certificationfromothercourts. 05/11/10

uJi civil

13-1643 Liability for hosts. 10/18/1013-1646 Negligent entrustment of a motor vehicle. 10/18/1013-2300 Introduction. 09/27/1013 2305 Human Rights Act violation.

Withdrawn; Recompiled as UJI 13-2307 09/27/1013-2307 Human Rights Act violation. 09/27/1013-2307A Race, gender, and other discrimination

under the New Mexico Human Rights Act. 09/27/1013-2307BBonafideoccupationalqualification.

No instruction drafted. 09/27/1013-2307C Discrimination based on serious medical

condition or physical or mental handicap. 09/27/1013-2307D Failure to accommodate. 09/27/1013-2307E Undue hardship. No instruction drafted. 09/27/1013-2307F Determining whether impairment

qualifiesasaphysicalormentalhandicap. 09/27/1013-2307GDeterminingwhetherimpairmentqualifies

as a serious medical condition. No instruction drafted. 09/27/10


rule-making activity http://nmsupremecourt.nmcourts.gov.

13-2307H Establishing disability by showing an individual has a record of a physical or mental condition. 09/27/10

13-2307I “Regardedas”defined. No instruction drafted. 09/27/10

13-2307J “Otherwisequalified”defined. 09/27/1013-2307K“Reasonableaccommodation”defined.

No instruction drafted. 09/27/1013-2307L Constructive discharge. 09/27/10

uJi criminal

14-121 Individual voir dire; death penalty cases; single jury used. 11/30/09

14-121A Individual voir dire; death penalty cases; two juries used. 11/30/09

ruleS governing admiSSion to the Bar

15-304 Oath. 03/30/1015-103 Qualifications. 07/04/10

ruleS governing diScipline

17-316 Review by the Supreme Court. 11/30/09

Supreme court general ruleS

23-106 Supreme Court rules committees. 05/10/10

ruleS governing revieW of Judicial StandardS commiSSion

27-106 Forms of papers. 03/03/1027-301 Commencement of proceedings. 03/03/1027-303 Response. 03/03/10

ruleS governing the Judicial evaluation commiSSion

28-201 Commission created; members; staff; meetings. 02/24/10

28-202 Judicial proceedings; excusals; recusals and withdrawals. 02/24/10

28-203 Powers and duties of the Commission. 02/24/1028-205 Confidentialityofinformation. 02/24/1028-301 Judicial evaluations. 02/24/1028-302 Narrativeprofilerequirements. 02/24/1028-303 Powers and duties of the Commission. 02/24/1028-401 Criteria for evaluation of judicial performance. 02/24/10

local ruleS for the thirteenth Judicial diStrict

LR13-411Electronicfilingandservicepilotproject. 07/01/10

To view all pending proposed rule changes (comment period open or closed), visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.

To view recently approved rule changes, visit the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us.



http://www.nmcompcomm.us

VIDEO REPLAY TUESDAYSFor Live Credit at the State Bar Center in Albuquerque

Sign up online at www.nmbarcle.org or fax registration form to (505)-797-6071

October 201019 ABCs of Foreclosure Law (2010) 3.7 G 8:30 a.m. - 12:15 p.m. $119

25th Annual Bankruptcy Year in Review (2010) 6.0 G, 1.0 P 8:45 a.m. - 4:15 p.m. $219

Multitasking Gone Mad: Learning to Cope in a Wired, Demanding World (2010)

4.2 G, 1.2 E 9:00 a.m. - 3:00 p.m. $199


4.7 G, 1.0 E, 1.0 P 8:30 a.m. - 3:45 p.m. $219

Winning Demonstrative Exhibits (David Gross) (2010 Annual Meeting) 1.0 G 9:00 - 10:00 a.m. $49

The Travelling Lawyer (Jim Calloway) (2010 Annual Meeting) 1.0 G

10:15 - 11:15 a.m. $49

Digital Workflow: Developing the Paperless Habit (Debbie Foster)

(2010 Annual Meeting) 1.0 G 11:30 a.m. - 12:30 p.m. $49

Animal Law: Legislation, Litigation, Ethics, and Professionalism (2010)

4.0 G, 1.0 E, 1.0 P 8:45 a.m. - 3:15 p.m. $199

November 20102 Creditors Rights, Collections, and Bankruptcy (2010)

4.0 G, 1.0 E 9:00 a.m. - 2:30 p.m. $179

Success as a Lawyer (David Gross) (2010 Annual Meeting) 1.0 G 8:45 - 9:45 a.m. $49

The Inbox Ninja (Adrina Linares) (2010 Annual Meeting) 1.0 G 10:00 - 11:00 a.m. $49

2010 Professionalism and Ethics: Responding to Crisis through Limited Representation

1.0 E, 1.0 P 8:30 - 10:30 a.m. $79

7th Annual Elder Law Seminar (2010) 3.7 G 12:30 - 4:15 p.m. $149

9 2010 Probate Institute 6.4 G, 1.0 E 8:15 a.m. - 4:15 p.m. $229

Putting Your Best Face on a Case (2010) 4.7 G, 1.0 E, 1.0 P

9:00 a.m. - 4:15 p.m. $209

Malpractice in an Uncertain Economy (from Surviving to Thriving in Private Practice) (2009) 1.0 G

11:00 a.m. - 12:00 p.m. $49

The Write Way to Write Persuasively (2009) 3.0 G 1:00 - 4:00 p.m. $129

FOR SEMINAR DETAILS: Visit www.nmbarcle.org, click on Format, then Video Replay, then Video Replay, End-of-Year.

Please Note: Lunch will be provided for CLE replays falling between the hours of 11:30 a.m. and 1:30 p.m. CLE time schedules noted in this brochure may reflect the 30 minutes allotted for lunch during affected programs.




Video Replay Tuesdays - 2

November continued...16 Immigrant Rights in New Mexico (2009) 5.5 G, 1.0 E 8:30 a.m. - 3:30 p.m. $209

Improving the Attorney/HR Relationship (2009) 5.0 G 9:00 a.m. - 2:30 p.m. $179

How to Do Your First PI Case (2009) 4.0 G, 1.0 E, 1.0 P 8:45 a.m. - 3:15 p.m. $199

23 The Inbox Ninja (Adrina Linares) (2010 Annual Meeting) 1.0 G 8:30 - 9:30 a.m. $49

Keynote: Stuart Forsyth (2010 Annual Meeting) 1.0 G 10:30 - 11:30 a.m. $49

Ethics Risks Practicing Law (from Surviving to Thriving in Private Practice)

(2009) 1.0 E 11:45 a.m. - 12:45 p.m. $49

Disciplinary Administrative Adjudications in New Mexico (2010)

4.7 G, 2.2 E 8:45 a.m. - 4:15 p.m. $209

Procurement Code Institute (2009) 3.0 G, 1.0 E 9:00 a.m. - 1:00 p.m. $149

30 2010 NM Administrative Law Institute 4.5 G, 1.0 E, 1.0 P

8:15 a.m. - 3:15 p.m. $209

2010 Health Law Symposium 5.2 G, 1.0 P 8:30 a.m. - 3:15 p.m. $209

Winning Demonstrative Exhibits (David Gross) (2010 Annual Meeting) 1.0 G 8:00 - 9:00 a.m. $49

Basics of Family Law (2008) 6.5 G 9:15 a.m. - 4:15 p.m. $209

December 20106 Skeptically Determining the Limits of Expert

Testimony and Evidence (2010) 4.7 G, 1.0 E, 1.0 P 8:15 a.m. - 3:30 p.m. $219

Tax Considerations in Estate Planning, Day One (2010) 13.0 G, 1.0 E

8:30 a.m. - 3:30 p.m. $359

Indian Law (2010) TBA 9:00 a.m. - TBA TBA

7 Animal Law: Legislation, Litigation, Ethics, and Professionalism (2010)

4.0 G, 1.0 E, 1.0 P 9:00 a.m. - 3:30 p.m. $199

Tax Considerations in Estate Planning (2010) (see Day One on December 6 for add. Information) 8:30 a.m. - 3:30 p.m. TBA

Workers Compensation to Social Security (2010) 2.7 G 8:45 - 11:30 a.m. $109

Representing Claimants in Social Security (2010) 3.4 G

12:15 - 3:45 p.m. $109

8 Creditors Rights, Collections, and Bankruptcy (2010) 4.0 G, 1.0 E

8:30 a.m. - 2:00 p.m. $179

Digital Workflow: Developing The Paperless Habit (Debbie Foster) (2010 Annual Meeting) 1.0 G 2:00 - 3:00 p.m. $49

Success as a Lawyer (David Gross) (2010 Annual Meeting) 1.0 G 3:15 - 4:15 p.m. $49

2010 Business Law Institute 6.5 G 8:45 a.m. - 3:45 p.m. $209

2010 Fall Elder Law Institute 5.5 G, 1.0 P 9:00 a.m. - 4:00 p.m. $209

13 2010 Employment and Labor Law Institute 6.0 G 9:00 a.m. - 3:30 p.m. $199

2010 Bridge The Gap 5.0 G, 1.0 E, 1.0 P 8:30 a.m. - 4:00 p.m. $219

2010 Family Law Institute, Day One 10.0 G, 1.0 E, 1.0 P

8:45 a.m. - 4:45 p.m. $339

14 2009 Professionalism: An Atty’s Guide to Good Lawyering for People with Disabilities

1.0 P 9:00 - 10:00 a.m. $49

Success as a Lawyer(David Gross) (2010 Annual Meeting) 1.0 G 8:30 - 9:30 a.m. $49

Sign up online at www.nmbarcle.org or fax registration form to (505)-797-6071FOR SEMINAR DETAILS: Visit www.nmbarcle.org, click on Format, then Video Replay, then Video Replay, End-of-Year.



Video Replay Tuesdays - 3

25th Bankruptcy Year in Review (2010) “Great! Useful! Essential!”

Success as a Lawyer (from 2010 Annual Meeting) “David Gross - Thought provoking. Funny. Fantastic.”

Skeptically Determining the Limits of Expert Testimony and Evidence (2010)

“Best CLE I’ve attended in New Mexico and possibly anywhere.”

Multitasking Gone Mad: Learning to Cope in a Wired, Demanding World (2010) 4.2 G, 1.2 E 10:00 a.m. - 4:00 p.m. $199

2010 Family Law Institute, Day Two (see Day One on December 13 for add. Information) 8:45 a.m. - 2:15 p.m. $339

21 2010 Tax Symposium 7.0 G 8:30 a.m. - 4:00 p.m. $219

Intellectual Property (2010) TBA 9:00 a.m. - TBA TBA

How to Do Your First PI Case (2009) 4.0 G, 1.0 E, 1.0 P 8:45 a.m. - 3:15 p.m. $199

23 Winning Demonstrative Exhibits (David Gross, 2010 Annual Meeting)

1.0 G 8:45 - 9:45 a.m. $49

ABCs of Foreclosure Law (2010) 3.7 G 10:00 a.m. - 1:45 p.m. $119

2010 Real Property Institute TBA 9:00 a.m. - TBA TBA

Putting Your Best Face on a Case (2010) 4.7 G, 1.0 E, 1.0 P

8:30 a.m. - 3:45 p.m. $209

The Final Stretch27 2010 Bridge The Gap 5.0 G, 1.0 E, 1.0 P 8:15 a.m. - 3:45 p.m. $219

Mutlicultural Challenges in New Mexico Law (2009) 4.5 G

9:00 a.m. - 2:00 p.m. $159

7th Annual Elder Law Seminar (2010) 3.7 G 10:30 a.m. - 2:15 p.m. $149

2010 NM Administrative Law Institute 4.5 G, 1.0 E, 1.0 P

8:30 a.m. - 3:30 p.m. $209

28 First Annual ADR Institute (2010) 6.5 G 8:30 a.m. - 3:30 p.m. $229

Forensic Accounting 101 (2009) 3.0 G 9:00 a.m. - 12:00 p.m. $109

The Inbox Ninja (Adrina Linares) (2010 Annual Meeting) 1.0 G 10:00 - 11:00 a.m. $49

What’s Next? How to Refresh, Refocus, and Recharge Your Legal Career (2009) 3.0 G 1:00 - 4:00 p.m. $129


4.7 G, 1.0 E, 1.0 P 8:30 a.m. - 3:45 p.m. $219

25th Annual Bankruptcy Year in Review (2010) 6.0 G, 1.0 P 9:00 a.m. - 4:30 p.m. $219

Digital Workflow: Developing The Paperless Habit (Debbie Foster)

(2010 Annual Meeting) 1.0 G 9:30 - 10:30 a.m. $49

Winning Demonstrative Exhibits (David Gross) (2010 Annual Meeting) 1.0 G 11:00 a.m. - 12:00 p.m. $49

30 Mediation Advocacy from Plaintiff, Defendant, and Mediator’s Perspective (2010 Annual Meeting)

1.0 G 8:15 - 9:15 a.m. $49

2010 Professionalism and Ethics: Responding to Crisis through Limited Representation

1.0 E, 1.0 P 8:30 - 10:30 a.m. $79

Success as a Lawyer (David Gross) (2010 Annual Meeting) 1.0 G 9:30 - 10:30 a.m. $49

4 - Video Replay Tuesdays

Video ending times are approximate

TWO WAYS TO REGISTER:INTERNET: www.nmbarcle.org FAX: (505) 797-6071, Open 24 hours

Name ___________________________________________________________________________NM Bar # _______________________________________

Street ________________________________________________________________________________________________________________________

City/State/Zip ___________________________________________________________________________________________________________________

Phone __________________________________________________________ Fax __________________________________________________________

E-mail _______________________________________________________________________________________________________________________

r VISA r MC r American Express r Discover Credit Card # _________________________________________________________ CVV # __________ Exp. Date _________

Billing Zip Code ______________________________ Authorized Signature ______________________________________________________________________

For questions or further details, please call CLE at 797-6061.

7th Annual Elder Law Seminar (2010) (3.7 G)❏ $149 November 2, 12:30 - 4:15pm❏ $149 December 27, 10:30am - 2:15pm

25th Annual Bankruptcy Year in Review (2010) (6.0 G, 1.0 P)❏ $219 October 19, 8:45am - 4:15pm❏ $219 December 29, 9:00am - 4:30pm

2009 Professionalism: An Attorney’s Guide to Good Lawyering for People with Disabilities (1.0 P)❏ $49 December 14, 9:00am - 10:00am

2010 Bridge the Gap (5.0 G, 1.0 E, 1.0 P)❏ $219 December 13, 8:30am - 4:00pm❏ $219 December 27, 8:15am - 3:45pm

2010 Business Law Institute (6.5 G)❏ $209 December 8, 8:45am - 3:45pm

2010 Employment and Labor Law Institute (6.0 G)❏ $199 December 13, 9:00am – 3:30pm

2010 Fall Elder Law Institute (5.5 G, 1.0 P)❏ $209 December 8, 9:00am - 4:00pm

2010 Family Law Institute (10.0 G, 1.0 E, 1.0 P)❏ $339 for both days DAY ONE - December 13, 8:45am - 4:45pm DAY TWO - December 14, 8:45am - 2:15pm

2010 Health Law Symposium (5.2 G, 1.0 P)$209 November 30, 8:30am - 3:15pm

2010 NM Administrative Law Institute (4.5 G, 1.0 E, 1.0 P)❏ $209 November 30, 8:15am - 3:15pm❏ $209 December 27, 8:30am - 3:30pm

2010 Probate Institute (6.4 G, 1.0 E) $229 November 9, 8:15am - 4:15pm

2010 Professionalism and Ethics: Responding to Crisis through Limited Representation (1.0 E, 1.0 P)❏ $79 November 2, 8:30 - 10:30am ❏ $79 December 30, 8:30 - 10:30am

2010 Real Property Institute (TBA)❏ TBA December 23, 9:00am - TBA

2010 Tax Symposium (7.0 G)❏ $219 December 21, 8:30am - 4:00pm

ABCs of Foreclosure Law (2010) (3.7 G)❏ $119 October 19, 8:30am - 12:15pm❏ $119 December 23, 10:00am - 1:45pm

Animal Law: Legislation, Litigation, Ethics, and Professionalism (2010) (4.0 G, 1.0 E, 1.0 P) ❏ $199 October 26, 8:45am - 3:15pm❏ $199 December 7, 9:00am - 3:30pm

Basics of Family Law (2008) (6.5 G)❏ $209 November 30, 9:15am - 4:15pm

Creditors’ Rights, Collections, and Bankruptcy (2010) (4.0 G, 1.0 E)❏ $179 November 2, 9:00am - 2:30pm ❏ $179 December 8, 8:30am - 2:00pm

Digital Workflow: Developing the Paperless Habit (Debbie Foster, 2010 Annual Meeting) (1.0 G)❏ $49 October 26, 11:30am - 12:30pm ❏ $49 December 8, 2:00 - 3:00pm ❏ $49 December 29, 9:30 - 10:30am

Disciplinary Administrative Adjudications in New Mexico (2010) (4.7 G, 2.2 E)❏ $209 November 23, 8:45am - 4:15pm

Ethics Risks Practicing Law (from Surviving to Thriving in Private Practice) (2009) (1.0 E)❏ $49 November 23, 11:45am - 12:45pm

First Annual ADR Institute (2010) (6.5 G)❏ $229 December 28, 8:30am - 3:30pm

Forensic Accounting 101 (2009) (3.0 G)❏ $109 December 28, 9:00am - 12:00pm

How to Do your First Pl Case (2009) (4.0 G, 1.0 E, 1.0 P)❏ $199 November 16, 8:45am - 3:15pm❏ $199 December 21, 8:45am - 3:15pm

Immigrant Rights in New Mexico (2009) (5.5 G, 1.0 E)❏ $209 November 16, 8:30am - 3:30pm

Improving the Attorney/HR Relationship (2009) (5.0 G)❏ $179 November 16 9:00am - 2:30pm

The Inbox Ninja (Adriana Linares) (2010 Annual Meeting) (1.0 G)❏ $49 November 2, 10:00 - 11:00am❏ $49 November 23, 8:30 - 9:30am❏ $49 December 28, 10:00 - 11:00am

Indian Law (2010) (TBA)❏ TBA December 6, 9:00am - TBA

Intellectual Property (2010) (TBA)❏ TBA December 21, 9:00am - TBA

Keynote: Stuart Forsyth (2010 Annual Meeting) (1.0 G)❏ $49 November 23, 10:30am - 11:30am

Malpractice in an Uncertain Economy (from Surviving to Thriving in Private Practice) (2009) (1.0 G)❏ $49 November 9, 11:00am - 12:00pm

Mediation Advocacy from Plaintiff, Defendant, and Mediator’s Perspective (2010 Annual Meeting) (1.0 G)❏ $49 December 30, 8:15 - 9:15am

Multicultural Challenges in New Mexico Law (2009) (4.5 G)❏ $159 December 27, 9:00am - 2:00pm

Multitasking Gone Mad: Learning to Cope in a Wired, Demanding World (2010) (4.2 G, 1.2 E)❏ $199 October 19, 9:00am - 3:00pm❏ $199 December 14, 10:00am - 4:00pm

Procurement Code Institute (2009) (3.0 G, 1.0 E)❏ $149 November 23, 9:00am - 1:00pm

Putting Your Best Face on a Case (2010) (4.7 G, 1.0 E, 1.0 P)❏ $209 November 9, 9:00am - 4:15pm❏ $209 December 23, 8:30am - 3:45pm

Representing Claimants in Social Security (2010) (3.4 G)❏ $109 December 7, 12:15 - 3:45pm

Skeptically Determining the Limits of Expert Testimony and Evidence (2010) (4.7 G, 1.0 E, 1.0 P)❏ $219 October 26, 8:30am - 3:45pm❏ $219 December 6, 8:15am - 3:30pm❏ $219 December 29, 8:30am - 3:45pm

Success as a Lawyer (David Gross) (2010 Annual Meeting) (1.0 G)❏ $49 November 2, 8:45 - 9:45am❏ $49 December 8, 3:15 - 4:15pm❏ $49 December 14, 8:30 - 9:30am❏ $49 December 30, 9:30 - 10:30am

Tax Considerations in Estate Planning, Day One (2010) (13.0 G, 1.0 E)❏ $359 for both days DAY ONE - December 6, 8:30am - 3:30pm

DAY TWO - December 7, 8:30am - 3:30pm

The Travelling Lawyer (Jim Calloway) (2010 Annual Meeting) (1.0 G)❏ $49 October 26, 10:15am - 11:15pm

What’s Next? How to Refresh, Refocus, and Recharge Your Legal Career (2009) (3.0 G)❏ $129 December 28, 1:00 - 4:00pm

Winning Demonstrative Exhibits (David Gross) (2010 Annual Meeting) (1.0 G)❏ $49 October 26, 9:00 - 10:00am ❏ $49 November 30, 8:00 - 9:00am❏ $49 December 23, 8:45 - 9:45am❏ $49 December 29, 11:00am - 12:00pm

Workers’ Compensation to Social Security (2010) (2.7 G)❏ $109 December 7, 8:45 - 11:30am

The Write Way to Write Persuasively (2009) (3.0 G)❏ $129 November 9, 1:00 - 4:00pm



advance opinionSfrom the neW mexico Supreme court and court of appealS

http://www.nmcompcomm.us/

Certiorari Granted, August 30, 2010, No. 32,524


Opinion Number: 2010-NMCA-080

Topic Index:Attorneys: Attorney-Client Privilege

Civil Procedure: Summary JudgmentConstitutional Law: New Mexico Constitution, General

Evidence: Attorney-Client Privilege; and PrivilegesGovernment: Executive Branch; Executive Privilege; and Public Records

Statutes: Interpretation

THE REPUBLICAN PARTY OF NEW MEXICO, and LYN OTT, Individually and in her capacity as

Help America Vote Act (HAVA), Director for theRepublican Party of New Mexico,

Plaintiffs-Appellants,versus

NEW MEXICO TAXATION AND REVENUE DEPARTMENT, MOTOR VEHICLE DIVISION,

and LUIS CARRASCO, custodian of records forthe New Mexico Taxation and Revenue Department,

Motor Vehicles Division,Defendants-Appellees.

No. 28,292 (filed: June 25, 2010)

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTYVALERIE A. HULING and NAN G. NASH, District Judges

JASON BOWLESB.J. CROW

BOWLES AND CROWAlbuquerque, New Mexico

COLIN HUNTERHUNTER LAW FIRM

Albuquerque, New Mexicofor Appellants

MARK T. BAKERLONG, POUND & KOMER, P.A.

Santa Fe, New Mexicofor Appellees

opinion

celia foy caStillo, Judge

{1} Plaintiffs, the Republican Party of New Mexico and Lyn Ott, individually and as director of the Help America Vote Act, appeal from a two-part order granting sum-mary judgment in favor of Defendants, the New Mexico Taxation and Revenue Depart-ment (T&RD), the Motor Vehicle Division

(MVD) of the T&RD, and Luis Carrasco as custodian of public records for the T&RD (together referred to as “the State”). Plain-tiffs requested information from the State pursuant to the Inspection of Public Records Act (IPRA), NMSA 1978, Sections 14-2-1 to -12 (1947, as amended through 2009). The State did provide records in response to the IPRA request, but relying on exceptions to IPRA and privilege, the State redacted much of the information in the documents

provided.Plaintiffsfiled suit challengingthese redactions. The parties filed cross motions for summary judgment. The district court concluded that the redactions were ap-propriate and granted summary judgment in favor of the State. Plaintiffs now appeal.{2} The public policy of New Mexico entitles “all persons . . . to the greatest pos-sible information regarding the affairs of governmentandtheofficialactsofpublicofficers and employees.” Section 14-2-5.Transparency in government is paramount. However, not all information is subject to public inspection, and there are exceptions to the general proposition. See, e.g., § 14-2-1(A) (listing twelve exceptions to the public’s right to inspect public records); City of Farmington v. The Daily Times, 2009-NMCA-057, ¶ 8, 146 N.M. 349, 210 P.3d 246 (describing the non-statutory ex-ception to disclosure referred to as the “rule of reason”). In the case before us, the State asserted three exceptions: non-disclosure as required by the federal and state statutes limiting disclosure of motor vehicle records, executive privilege, and attorney-client privilege. After carefully reviewing the record and the arguments of the parties, we affirmthedistrictcourt.I. BACKGROUND{3} This case arose as a result of an article by the Associated Press (AP) wherein it was reported that New Mexico Governor Bill Richardson had proposed new regula-tions that required undocumented aliens to provide additional formsof identificationto procure New Mexico drivers’ licenses. According to the article, T&RD estimated that nearly 27,000 undocumented aliens had acquired drivers’ licenses under the then existing regulations which required undocumented aliens to present only one formof identification—either a passport,federalindividualtaxidentificationnumber,orconsularidentificationcard.Thearticlealso explained that the Richardson admin-istration had become concerned that some of those licenses might have been issued to individuals who submitted documents of questionable authenticity and, as a result, the administration directed the MVD to perform an audit to evaluate that concern. On July 25, 2006, only a few months after publication of the AP article, Plaintiffs, wanting to “re-search whether undocumented aliens were voting in federal, state, and local elections in New Mexico,” requested the following

http://www.nmcompcomm.us


categories of information from the State pursuant to IPRA:

1. All lists, compilations, and summaries thereof of drivers’ licenses that have been issued to individuals who are not citizens or legal residents of the United States pursuant to [NMSA 1978,] § 18-19-5.12(B) [sic] [Request #1]; and2. All memoranda, notes, reports, electronic mail messages, or other documents that identify or describe the number of drivers’ licenses that have been issued to individuals who are not citizens or legal resi-dents of the United States pursuant to [NMSA 1978,] § 18-19-5.12(B) [sic][.] [Request #2]

As an alternative to number [two] . . . you may produce the following:

All documents used as the basis for the [T&RD’s] statement [in the AP article] that . . . “27,000 immigrants have obtained licenses” . . . [Alter-native to Request #2]; and3. All documents discussing, relating to, or created in response to instructions from the governor to audit records as described in the AP article[.] [Request #3]

{4} The State provided Plaintiffs with 150 pages of records which consisted of e-mailsbetweentheGovernor’sofficeandthe T&RD, e-mails between the T&RD and the MVD, and spreadsheets produced by the MVD. However, a great portion of the information within those documents was redacted. MVD explained to Plaintiffs that the redactions were legally necessary and cited the following grounds for this claim: (1) Section 14-2-1(A)(12), an exception to the right to request public documents under IPRA; (2) the New Mexico Driver Privacy Protection Act (NMDPPA), NMSA 1978, Section 66-2-7.1 (2007); (3) Rule 11-503 NMRA, attorney-client privilege; and (4) executive privilege.{5} UnsatisfiedwiththeState’sresponse,Plaintiffsfiledsuit.Plaintiffssoughtanordercompelling the State to produce copies of the documents without the redactions together with any other documents pertinent to their request. Cross-motions for summary judg-ment followed. The district court entered a partial ruling on the parties’ cross-motions concluding that the federal Drivers Privacy Protection Act (DPPA) 18 U.S.C. §§ 2721 to -25 (1994, as amended through 2000), and the NMDPPA require the State to maintain the confidentiality of drivers’ personal

information and, thus, the State appropri-ately redacted personal information from the spreadsheets provided to Plaintiffs. Accord-ingly, the district court granted summary judgment in the State’s favor with respect to this aspect of Plaintiffs’ claim. As to the remainingredactions—thosemadepursuanttoexecutiveandattorney-clientprivileges—the district court reserved decision pending an in camera review of the communications without redactions.{6} After the in camera review, the dis-trict court granted summary judgment to the State with respect to the remainder of Plaintiffs’claims.Plaintiffsfiledamotionfor reconsideration which was subsequently denied. This appeal followed.II. DISCUSSION{7} On appeal, Plaintiffs take issue with the district court’s conclusions that (1) the State properly redacted personal drivers’ information from the spreadsheets, (2) the redactions carried out pursuant to executive privilege were proper, and (3) the redac-tions carried out pursuant to attorney-client privilege were proper. We begin with the applicable standard of review and then ad-dress Plaintiffs’ arguments in turn.A. Standard of Review{8} The issues on appeal require us to interpret provisions of the DPPA and NM-DPPA. For issues of statutory construction, our standard of review is de novo. Bell v. Estate of Bell, 2008-NMCA-045, ¶ 11, 143 N.M. 716, 181 P.3d 708, cert. quashed, 2008-NMCERT-011, 143 N.M. 532, 202 P.2d 125. We are also required to review the district court’s decisions regarding the ap-plicability and construction of the attorney-client and executive privileges. The district court’s construction of those privileges is a matter of law which is also subject to de novo review. Public Serv. Co. of N.M. v. Lyons, 2000-NMCA-077, ¶ 10, 129 N.M. 487, 10 P.3d 166.{9} Plaintiffs appeal from the district court’s orders in favor of the State on the parties’ cross-motions for summary judg-ment. “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Weise v. Wash. Tru So-lutions, L.L.C., 2008-NMCA-121, ¶ 2, 144 N.M. 867, 192 P.3d 1244 (internal quotation marks and citation omitted). “[W]here the parties agree to have the [district] court de-cide a case on cross-motions for summary judgment and where neither party claims that disputed facts exist, this Court will re-view the case as presented by the parties and decide it one way or the other.” Farmington

Police Officers Ass’n Commc’n Workers of Am. Local 7911 v. City of Farmington, 2006-NMCA-077, ¶ 33, 139 N.M. 750, 137 P.3d 1204 (Pickard, J., specially concurring in part and dissenting in part).B. Redaction of Personal Driver’s

Information{10} Plaintiffs contend that the State improperly redacted personal drivers’ in-formation from the materials provided in response to Plaintiffs’ IPRA Request #1 and Alternative to Request #2. IPRA provides that every citizen of this state has a right to inspect any public records of this state except as otherwise provided by law. Section 14-2-1(A)(12). The State relies on an excep-tion set forth in state and federal statutes. See The Daily Times, 2009-NMCA-057, ¶ 11 (holding that the language “[except] as otherwise provided by law” has generally been interpreted as referring to exceptions contained in other statutes (internal quota-tion marks and citation omitted)). According to the State, it was required to redact per-sonal driver’s information under the terms of the DPPA and the NMDPPA. Both statutes generally restrict the disclosure of personal information in a driver’s motor vehicle re-cordwithoutthedriver’saffirmativeconsentunless certain specified exceptions to theprohibition apply. See 18 U.S.C. § 2721(a)(1) (stating that “[a] [s]tate department of motorvehicles,andanyofficer,employee,or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: . . . personal information . . . about any individual obtained by the department in connection with a motor ve-hicle record”); 18 U.S.C. § 2721(b) (listing exceptions); § 66-2-7.1(A) (stating that “[i]t is unlawful for any department or bureau employee or contractor . . . to disclose to any person other than another employee of the department or bureau any personal information about an individual obtained by the department or bureau in connection with a driver’s license or permit . . . [except as provided in enumerated exceptions (1) through (11)])”.{11} TheDPPAisareflectionof“theongo-ing tug-of-war between the public’s right to know and individual privacy interests.” Maureen Maginnis, Maintaining the Privacy of Personal Information: The DPPA and the Right of Privacy, 51 S.C. L. Rev. 807, 808 (2000). Before passage of the DPPA, the majority of states allowed almost total public access to personal information in mo-tor vehicle records. Oliver J. Kim, Note, The Driver’s Privacy Protection Act: On the Fast Track to National Harmony or Commercial


Chaos?, 84 Minn. L. Rev. 223, 243 (1999). A major impetus behind passage of the legislation was the growing concern about crimes committed by individuals who used motor vehicle records to identify and locate victims. Deborah F. Buchman, Annotation, Validity, Construction, and Application of Federal Driver’s Privacy Protection Act, 18 U.S.C.A. §§ 2721 to 2725, 183 A.L.R. Fed. 37, § 2 (2003). One highly publicized case involved actress Rebecca Schaeffer, who became a victim in 1989 when she was murdered outside her apartment by a stalker who obtained her unlisted address from the California Department of Motor Vehicles. Maginnis, supra, at 809.{12} Congress was also concerned about what had become a common practice in many states: the sale of information in mo-tor vehicle records for marketing purposes. This practice inundated citizens’ mail boxes across the country with junk mail and un-wanted solicitations. 183 A.L.R. Fed. 37, § 2. Passage of the DPPA in 1994 regulated the disclosure and resale of motor vehicle records, and this prompted a number of constitutional challenges to the statute. See Thomas H. Odom & Gregory S. Feder, Challenging the Federal Driver’s Privacy Protection Act: The Next Step in Develop-ing a Jurisprudence of Process-Oriented Federalism Under the Tenth Amendment, 53 U. Miami L. Rev. 71, 73 (1998). The issues were answered in a unanimous opinion of the United States Supreme Court in Reno v. Condon, 528 U.S. 141, 150-51 (2000), which held that the DPPA did not run afoul of the principles of federalism and that the statute was a valid exercise of congressional authority under the Commerce Clause. As previously discussed, the NMDPPA contains restrictions and exceptions similar to those in the DPPA.{13} The State’s position is that the in-formation redacted from the spreadsheets indisputablyqualifiesaspersonalinforma-tion protected from disclosure under both the DPPA and the NMDPPA. The State redacted two types of information: (1) the names, driver’s license numbers, and addresses of drivers who obtained their licenseswithproofof identificationotherthan a social security number and (2) indi-vidualtaxidentificationnumbers.Drivers’names, license numbers, and addresses are specifically designated by these statutesas personal information. See 18 U.S.C. § 2725(3) (defining “personal information”under the DPPA as “information that identi-fiesanindividual,includinganindividual’sphotograph, social security number, driver

identification number, name, address (butnot the 5-digit zip code), telephone number, and medical or disability information”); NMSA 1978, § 66-1-4.14(F) (1999) (de-fining “personal information” under the NMDPPA as “information that identifiesan individual, including an individual’s photograph, social security number, driver identificationnumber,name,addressotherthan zip code, telephone number and medi-cal or disability information”). Although individualtaxidentificationnumbersarenotspecificallylisted,theyaresimilartosocialsecuritynumbersandmeetthedefinitionofpersonal information because they provide identifying information. We agree with the State that the information redacted from the spreadsheets is personal information governed by the DPPA and the NMDPPA. This, however, does not end our inquiry.{14} According to Plaintiffs, their request was based on one of the stated exceptions to the disclosure prohibitions in the DPPA andtheNMDPPA,specificallytheexceptionthat allows disclosure of personal driver’s information for research activities. See 18 U.S.C. § 2721(b)(5) (“Personal informa-tion . . . [may] be disclosed . . . [f]or use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals.”); § 66-2-7.1(A)(4) (“It is unlawful . . . to disclose . . . any personal information . . . except . . . for use in research activities and for use in producing statistical reports, so long as the personal information is not published, redisclosed or used to contact individuals[.]”). We observe that Plaintiffs did not initially indicate that their request was based on this exception, and they did not assert this as a basis for disclosureuntilafterfilingtheircomplaint.More importantly to the evaluation of this is-sue, however, is Plaintiffs’ failure to provide us with any citation or guidance to assist in definingwhattheterm“research”meansinthe context of the DPPA and the NMDPPA. Nor have Plaintiffs provided any facts upon which the exception could be based. This Court has no duty to review an argument that is unclear or inadequately developed. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that we will not review unclear or undeveloped arguments).{15} Even if we were to agree that the request was for purposes of research, there are limitations on the use of the information once obtained, and this undercuts Plaintiffs’ argument. The research exception explicitly prohibits the redisclosure or publication of

any personal driver’s information received pursuant to the research exception and, further, prohibits the use of that information to contact the individuals from whom the information was obtained. See 18 U.S.C. § 2721(b)(5) (“Personal information . . . [may] be disclosed . . . [f]or use in research activities . . . so long as the personal infor-mation is not published, redisclosed, or used to contact individuals.”); § 66-2-7.1(A)(4) (same). To achieve the stated objective un-derlying their request, i.e., to challenge voter eligibility pursuant to NMSA 1978, Section 1-4-22 (1995), Plaintiffs would be required to disclose or publish the personal driver’s information they receive. Under Section 1-4-22,onlyspecificpartiesarepermittedtoadvance a claim challenging voter eligibil-ity. See § 1-4-22(A) (specifying that only “the secretary of state, the county chairman of any major political party or any twenty petitioners who are voters of the county mayfileandpresenttothedistrictcourtaverifiedpetitionallegingeitheronpersonalknowledge or on information and belief that certain persons registered, named in the petition,arenotqualifiedelectorsinthepre-cincts named in the petition”). To establish voter fraud, Plaintiffs would be required to disclose the personal information obtained from the motor vehicle records to one of these parties. Furthermore, in submitting their claim to the district court, Plaintiffs would necessarily disclose the information a second time, this time to the district court. Finally, it seems inevitable that Plaintiffs’ attempts to verify voter eligibility would undoubtedly precipitate a process through which that personal information would be used to contact the individuals from whom that information was obtained. The research exception cannot be used under these cir-cumstances. {16} Intheirfinalargumentonthisissue,Plaintiffs contend that because the State makes drivers’ personal information avail-able to third-party vendors, it is required to make the information available to them. Again, Plaintiffs have failed to provide any authority to support this argument. See State v. King, 2007-NMCA-130, ¶ 17, 142 N.M. 699, 168 P.3d 1123 (refusing to con-sider arguments unsupported by authority or analysis). We observe that the DPPA and the NMDPPA list a number of exceptions, and it is possible that a third-party vendor would be entitled to personal information under one of the exceptions. Plaintiffs do not develop this issue, nor is it before this Court. What is before this Court is whether, based on the record and arguments before us, the


State properly redacted personal information from lists of motor vehicle records. In this regard, we reject Plaintiffs’ assertion that they are entitled to the unredacted informa-tion and hold that the district court did not err in granting summary judgment in favor of the State with respect to this portion of Plaintiffs’ request.C. Redactions Pursuant to Executive

Privilege{17} In their second issue, Plaintiffs con-tend that the district court erred when it de-termined that the State was entitled to redact and withhold requested communications on the grounds of executive privilege. Before weaddressPlaintiffsspecificarguments,weprovide a short history of executive privilege and summarize what it involves under New Mexico law.1. Executive Privilege{18} “Since the beginnings of our nation, executiveofficialshaveclaimedavarietyofprivileges to resist disclosure of information the confidentialityofwhich they feltwascrucialtofulfillmentoftheuniqueroleandresponsibilities of the executive branch of our government.” In re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997). Among the categories of executive privilege, two are primary: the most oft-cited deliberative process privilege and the chief executive communications privilege. Matthew W. Warnock, Comment, Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials, 35 Cap. U. L. Rev. 983, 985 (2007). Although closely af-filiated,thetwoprivilegesaredistinctandhave different scopes. In re Sealed Case, 121 F.3d at 745. Both are “designed to protect executive branch decision[]making, but one applies to decision[]making of executive officialsgenerally,theotherspecificallytodecision[]making of the [executive].” Id.2. Executive Privilege in New Mexico{19} In State ex rel. Attorney General v. First Judicial District Court of New Mexico, 96 N.M. 254, 257-58, 629 P.2d 330, 333-34 (1981), the New Mexico Supreme Court recognized executive privilege as a neces-sity for the successful functioning of an in-dependent executive branch of government. The “recognition of an executive privilege is required by the Constitution of the State ofNewMexico,” specificallyArticle III,which provides for the separation of powers among the three branches of government. First Judicial, 96 N.M. at 257, 629 P.2d at 333. The purpose of the privilege is to

safeguard the decision[]making process of the government by fostering candid expression of

recommendations and advice and to protect this process from dis-closure. Executive personnel who fear or expect public dissemination of their remarks may temper their comments because of their concern for their own personal interests, safety, or reputation.

Id. at 258, 629 P.2d at 334.{20} The privilege is not absolute. Id. Al-thoughtheneedforconfidentialityamongthe executive is worthy of protection, the court must determine whether the particular circumstances of a case allow the imposition of the privilege. Id. This is done by balanc-ing the competing interests of the “public’s interest in preserving confidentiality to promote intra-governmental candor with the individual’s need for disclosure of the particular information sought.” Id.3. Plaintiffs’ Arguments {21} In their challenge to the district court’s decision, Plaintiffs make two arguments. First, they claim that the State is prohib-ited from withholding information sought through an IPRA request by claiming executive privilege. Plaintiffs also assert that executive privilege is inapplicable on its merits. We address these arguments in turn.a. Statutory Construction{22} Plaintiffs rely on a canon of statutory construction known as expressio unius est exclusio alterius—theinclusionofonethingimplies the exclusion of another. Plaintiffs contend that IPRA was “enacted” after First Judicial and that attorney-client privilege was expressly included as an exception to disclosure, while executive privilege was not. According to Plaintiffs, the omission of executive privilege as a listed exception evidences the Legislature’s intent to exclude the privilege as a basis for withholding docu-ments requested under IPRA.{23} First, Plaintiffs are incorrect that IPRA was enacted after First Judicial. IPRA was firstenactedin1947by1947N.M.Laws,Chapter 130, Section 1. First Judicial was decided in 1981. The 1947 version of IPRA did not list either privilege as an exemption. Id. IPRA was later recompiled as Sections 14-2-1 through -12 and amended in 1973, 1981, 1993, and 1998. It was not until 1999 that IPRA was amended to include attorney-client privilege as a specifically listed exemption. The current version of IPRA continues to exempt documents subject to the attorney-client privilege, and there is nospecificmentionofexecutiveprivilege.We evaluate Plaintiffs’ argument in this context.

{24} We review statutory construction de novo. The Daily Times, 2009-NMCA-057, ¶ 6. In ascertaining legislative intent, we firstlooktothestatute’splainlanguage,andwhen the “statute’s language is clear and unambiguous, we give the statute its plain and ordinary meaning and refrain from fur-ther interpretation.” Id. (internal quotation marks and citation omitted). There are cur-rently twelve statutory exceptions provided within IPRA itself. See § 14-2-1(A)(1)-(12). We agree that attorney-client privilege is a specificexemptionandexecutiveprivilegeisnot,butthelistofspecificexemptionsisnot exhaustive. The last exception excepts those public records that are confidential“as otherwise provided by law,” Section 14-2-1(A)(12), and “has generally been interpreted as referring to exceptions contained in other statutes and properly promulgated regulations.” The Daily Times, 2009-NMCA-057, ¶ 11. In addition to the statutory exceptions, “our Supreme Court has recognized a non-statutory exception to disclosure.” Id. ¶ 8. “This non-statutory exception, also referred to as the ‘rule of reason,’ . . . is applicable . . . to claims of confidentiality asserted for public recordsthat do not fall into one of the statutory exceptions[.]” Id. (internal quotation marks and citation omitted). Under this exception, a district court is required “to balance the fundamental right of all citizens to have reasonable access to public records against countervailing public policy considerations whichfavorconfidentialityandnondisclo-sure.” Id. (internal quotation marks and citation omitted). The countervailing public policy underlying executive privilege can supportadeterminationinfavorofconfi-dentiality. Accordingly, we reject Plaintiffs expressio unius argument. The fact that executiveprivilegeisnotlistedasaspecificexception does not mean the Legislature has prohibited the assertion of the privilege as abasisforprotectingtheconfidentialityofcertain documents requested under IPRA.b. Applicability on its Merits{25} Plaintiffs also argue that the privilege is inapplicable on its merits. Plaintiffs rely on language in The Inspection of Public Records Act: A Compliance Guide for New Mexico Public Officials and Citizens, p. 22 (6th ed. 2009), http://www.nmag.gov/pdf/AGO IPRA Guide 6th Ed.pdf: “The [execu-tive] privilege is not absolute and may not be used unless revelation of a particular docu-ment will truly compromise the agency’s decision-making process, and thus out-weighs the public’s interest in disclosure.” We agree that the privilege is not absolute.

http://www.nmag.gov/pdf


First Judicial, 96 N.M. at 258, 629 P.2d at 334. As to the burden, Plaintiffs argue that the State did not meet its burden of show-ing that disclosure of the documents would truly compromise the agency’s decision-making process because (1) the documents were in the custody of the MVD, not the Governor’soffice;(2)thecommunicationswere between mid to low-level employees; and (3) none of the documents are part of the internal policy-making processes of theGovernor’soffice.Weobservethatnoargument was raised below or on appeal regarding the difference, if any, between the evaluation of the privilege in the context of discovery and in the context of an IPRA request. Similarly, no argument was made that the district court failed to follow the rule of reason in applying the privilege or that the privilege was improperly asserted. Before we address Plaintiffs’ three points, we digress to review the district court’s evaluation of the privilege.{26} The district court followed the require-ments regarding the assertion of executive privilege in the context of discovery. The State had prepared a log of all documents produced in response to the IPRA request. The log listed the type of document, the reason produced, its authors, recipients, and subject, the date created, subject mat-ter, and the basis for the redactions made to the document. Executive privilege was asserted as the basis for redactions to com-munications regarding: (1) New Mexico’s negotiations with the Mexican government to obtain access to Matricula Consular docu-ments; (2) legal and policy discussions about New Mexico drivers who applied for their licenses using documents whose authentic-ityhadnotbeenconfirmedbytheT&RD;and (3) legal and policy discussions related to the audit process.{27} At the hearing on the cross motions for summary judgment, the district court lis-tened to the arguments of the parties as to the operation of the privilege on the documents indicated. The district court determined that the privilege had been invoked; that Plaintiffs had shown that their interest in protecting the integrity of the voting process constituted good cause for requesting the information; and that in order to properly evaluate the privilege, it would reserve rul-ing whether the privilege applied “pending an in camera review of the communications at issue.” Under the “rule of reason,” the court is to “view, in camera, the information in the possession of the custodian and make a determination regarding the competing public policies based on that information.”

The Daily Times, 2009-NMCA-057, ¶ 13. {28} The State provided the district court with copies of the subject documents with-out redactions. The district court determined that executive privilege exists basically to “aid governmental decision[]making” and undertook the in camera review to “deter-mine whether or not there is good cause for disclosure.” The court stated that it would be looking for anything that “would suggest . . . a compromise of the integrity of our voting process” because that type of information is not privileged. The record shows that the court explained that it would also evaluate each document to determine if it was the document as claimed, if it was to a third party outside the department, and if the description of the document was accurate. After performing the in camera inspection, thedistrictcourtissuedfindingsdeterminingthat “[w]ith regard to executive privilege, none of the documents reviewed contain information that would suggest the voting process in this state has been compromised.” As a result, the court granted the State’s cross-motion for summary judgment.{29} We now turn to Plaintiffs’ points. Here, the documents redacted were communica-tions between executive personnel within theOfficeoftheGovernor,theT&RD,andthe MVD. Plaintiffs assert that the docu-ments in question were not entitled to pro-tection because the documents were in the custodyoftheMVD—nottheGovernor’soffice.TheT&RDisacabinetdepartmentin the executive branch. NMSA 1978, § 9-11-4 (2005). The MVD is a division of the T&RD. Section 9-11-4(D). The communi-cations were from employees of these ex-ecutive departments. We do not address the document custody issue because Plaintiffs have failed to cite authority to support the proposition that custody of a document in one executive agency as opposed to another affects the analysis. See King, 2007-NMCA-130, ¶ 17 (declining to consider arguments unsupported by authority).{30} Plaintiffs also argue that the privilege cannot be extended to communications other than those relevant to the internal policy-makingprocessesoftheGovernor’soffice.In this regard, Plaintiffs rely on In re Sealed Case, 121 F.3d 729, for their argument that the privilege only applies to “high level” members of the executive branch, not to lower level employees. Further, Plaintiffs assert that they have not located any case that “extends the privilege broadly to any employee within an executive branch agency” as adopted by the district court in this case.

{31} First, we observe that Plaintiffs’ argu-ment appears to be based on the executive communications arm of executive privi-lege—thelanguagereliedonbyPlaintiffsrefers to this arm of the privilege, not the deliberative process sub-category. “‘[E]xe-cutive privilege’ is generally used to refer to a wide variety of evidentiary and substantive privileges that courts accord the executive branch.” In re Sealed Case, 121 F.3d at 735 n.2. Two of the arms of the privilege are the executive communications privilege and the deliberative process privilege. Russell L. Weaver & James T.R. Jones, The Delibera-tive Process Privilege, 54 Mo. L. Rev. 279, 284-91 (1989); see Warnock, supra, at 984 (discussing the distinction between the two types of executive privilege).{32} In First Judicial, our Supreme Court described executive privilege in general terms and relied on cases dealing with both categories of the privilege. United States v. Nixon, 418 U.S. 683, 706, 712 (1974) (rejecting an absolute and unqualified executive communications privilege and affirming the inspection of certain tape recordings and documents relating to con-versations between the President and his aides and advisors), superseded by rule as stated in People v. Montoya, 753 P.2d 729 (Colo. 1988) (en banc); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966) (dealing with “recom-mendations and deliberations comprising part of a process by which governmental decisions and policies are formulated”), aff’d, 384 F.2d 979 (D.C. Cir. 1967). The subject documents in First Judicial con-sisted of material obtained by the attorney generalfromcorrectionsofficersandotherexecutive department personnel relating to the 1980 Penitentiary Riot. First Judicial, 96 N.M. at 258, 629 P.2d at 334. Although the public policy underpinnings of both types of executive privilege are discussed in First Judicial, the type of privilege upon which the case ultimately turned falls into the sub-category of the deliberative pro-cess privilege. See, e.g., Michael N. Ken-nedy, Comment, Escaping The Fishbowl: A Proposal To Fortify The Deliberative Process Privilege, 99 Nw. U. L. Rev. 1769, 1778 n.64 (2005) (listing New Mexico as a state that has created a deliberative process privilege for state agencies). Consequently, Plaintiffs’ arguments do not go to the type of privilege asserted in that case.{33} Second, we question Plaintiffs’ legal premise. In evaluating documents pertain-ing to White House counsel’s investigation of the Secretary of Agriculture, the court


in In re Sealed Case held that the execu-tive communications privilege applied to communications authored by White House counsel and other top presidential advisers who had “broad and significant respon-sibility for investigating and formulating the advice to be given the President on the particular matter to which the communica-tions relate.” 121 F.3d at 758. In addition, the court analyzed whether the privilege applied to documents authored by a legal extern and to documents for which no author was listed. Id. Although the court recognized that the legal extern “did not exercise broad and significant responsibility for the . . .investigation, and therefore the documents authored by the legal extern do not, on their own, qualify for the presidential privilege,” it nevertheless determined that the privilege applied because the documents authored by the extern were created at the request of the two associate White House counsel who did have broad and significant responsibilityfor the investigation and were received by them. Id. Along the same lines, the three documents with no author indicated were solicited and received by staff with the ap-propriate responsibility. Id. It becomes clear that the application of the privilege does not turn solely on the job level of the person creating the document. Thus, Plaintiffs’ argument is not supported by the authority they cite.{34} We further conclude that the State met its burden that on balance, the interests of the public in keeping the documents confidential outweigh the interests of thePlaintiffs in having them disclosed. The State based its argument on the premise that public disclosure of certain communications would chill the open exchange of opinions and recommendations between government officialsandthattheprivilegeisintendedtoprotect the government’s decision-making process, its consultative functions, and the quality of its decisions. The documents redacted relate to the development of documents necessary for New Mexico’s negotiations with the Mexican government regardingidentificationconfirmation.Theyalso include discussions regarding how to deal with New Mexico drivers who applied for licenses using documents the MVD was unable to confirm aswell as discussionsrelated to the audit process. These materi-als were generated as part of the executive branch’s development of policy concerning: (1) the future issuance of drivers’ licenses to undocumented aliens; (2) how best to verify the documents provided to the MVD by those aliens; and (3) how best to involve

the Mexican government in that process in the future. Accordingly, we conclude that the district court properly determined that executive privilege was applicable in this case.{35} Plaintiffs also complain that the district court’s broad application of the ex-ecutive privilege would render “virtually all communications and records generated by New Mexico state agencies and departments subject to a claim of executive privilege,” thus allowing these documents to be “[kept] secret from the public at the sole discretion of that department or agency[] without any independent oversight or review.” This is not the case. As occurred here, once the privilege is asserted, there is a process to evaluate whether that assertion is proper under IPRA. {36} In conclusion, we hold that the district court did not err in concluding that the re-dactions carried out pursuant to executive privilege were proper. As described above, the redacted information was properly withheld by the State and, thus, the State is entitled to judgment as a matter of law on this issue.D. Redactions Pursuant to Attorney-

Client Privilege{37} Section 14-2-1(A)(6) exempts from disclosure documents protected by the attorney-client privilege. In its first argu-ment as to this privilege, Plaintiffs claim that it is inapplicable to the communications in question because “[a]n attorney for an agency . . . is not also the personal attorney for each of the agencies employees” and the communications in question “were sent in and among staff attorneys and manage-ment, while some communication involved lower[-]level employees, for which there is not a privilege.”{38} Plaintiffs devote less than a full page of their brief-in-chief to these contentions, fail to cite authority, and do not specify to which communications their arguments refer. The argument is not adequately de-veloped or supported. As previously stated, we do not review unclear or inadequately developed arguments or arguments for which no authority has been cited. See King, 2007-NMCA-130, ¶ 17 (refusing to con-sider arguments unsupported by authority or analysis); Headley, 2005-NMCA-045, ¶ 15 (stating that we will not review unclear or undeveloped arguments).{39} We now turn to Plaintiffs’ second argument. They cite Rule 11-511 NMRA, and Gingrich v. Sandia Corporation, 2007-NMCA-101, 142 N.M. 359, 165 P.3d 1135, as support for their assertion that “[the State]

ha[s] waived any claim of attorney-client privilege . . . by disclosing the information sought by the Plaintiffs to the media and others.” Under Rule 11-511, the attorney-client privilege is waived where the holder of the privilege “voluntarily discloses or consents to disclosure of any significantpart of the matter or communication.” As we demonstrate below, Plaintiffs have not shown that any of the communications re-dacted pursuant to attorney-client privilege were disclosed.{40} The following is a brief and general description of the documents redacted pur-suant to attorney-client privilege and their content: discussions between general coun-selfortheGovernor’sofficeandexecutivebranch personnel regarding a proposed let-tertoofficialsintheMexicangovernmentdescribing the policies surrounding the is-suance of drivers’ licenses in New Mexico; discussions between executive branch of-ficersandcounselfortheT&RDrelatedtoa potential audit of drivers who obtained their licenses by submitting an individual tax identificationnumber;discussionsbetweencounsel for the T&RD and MVD personnel reviewing proposed drafts of letters to be sent to drivers who received New Mexico drivers’ licenses but whose documentation ultimately could not be verified; corre-spondence between the MVD director and in-house counsel for the T&RD regarding specificstatutesandregulationsgoverningthe process under which an individual may obtain a driver’s license in New Mexico; legal analysis performed by counsel for the T&RD for the benefit of the directors ofthe MVD and T&RD; and communications directed to the Deputy Chief Counsel for theOffice of theGovernor regarding thestatus of the audit on drivers who obtained their licenses by submitting an individual tax identification number. Plaintiffs havefailedtodirectustoanyspecificinstancewhere any of the redacted documents were disclosed. Accordingly, we conclude that the district court did not err in concluding that the redactions made pursuant to attorney-client privilege were proper.CONCLUSION{41} Basedontheforegoing,weaffirmthedistrict court’s order of summary judgment in this case.{42} IT IS SO ORDERED. CELIA FOY CASTILLO, Judge

WE CONCUR:CYNTHIA A. FRY, Chief JudgeMICHAEL D. BUSTAMANTE, Judge


Certiorari Granted, August 31, 2010, No. 32,542


Opinion Number: 2010-NMCA-081

Topic Index:Appeal and Error: Standard of Review

Civil Procedure: Motion to DismissJurisdiction: Subject Matter

Tort: Premises LiabilityWorkers’ Compensation: Coming and Going Rule;

Course of Employment; and Exclusive Remedy

SARAH QUINTERO, Plaintiff-Appellant,

versusSTATE OF NEW MEXICO DEPARTMENT OF TRANSPORTATION

and DOES 1 through 5, inclusive,Defendants-Appellees.

No. 28,875 (filed: July 8, 2010)

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

opinion

michael e. vigil, Judge

{1} Thiscasepresentsanissueoffirstimpression: whether the Workers’ Com-pensation Act (the Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2007), is the exclusive remedy for a cleri-cal worker, who was injured as a result of the alleged negligence of a State agency while in the course of commuting on public transportation to her job, because she happened to work for a separate State agency. We hold that the exclusivity pro-visions of the Act do not bar Plaintiff’s negligence action. The district court hav-ing held otherwise, we reverse.BACKGROUND{2} The material facts are undisputed. Plaintiff lives in Albuquerque and was an employee of the New Mexico Depart-ment of Public Safety (DPS) in Santa Fe. Her duties with DPS consisted of cleri-calwork,fingerprintingmembersofthepublic,andfilingdocuments.Herjobdid

TURNER W. BRANCHFRANK BALDERRAMA

BRANCH LAW FIRMAlbuquerque, New Mexico

for Appellant

MARK E. KOMERLONG, POUND & KOMER, P.A.

Santa Fe, New Mexicofor Appellees

not require travel. Plaintiff commuted to her place of employment in Santa Fe via the “Park and Ride” during the entire two and one-half years she was employed with DPS.{3} “Park and Ride” is a private bus ser-vice providing transportation to the public between Albuquerque and Santa Fe. Typi-cally, riders boarded the “Park and Ride” at Balloon Fiesta Park in Albuquerque; however, a Department of Transportation (DOT) parking lot was temporarily used during the 2006 Balloon Fiesta. Before dawn on October 19, 2006, Plaintiff drove to and parked in the DOT parking lot for her daily commute. According to the complaint, while walking through the parking lot, Plaintiff was injured when she fell into an unlit hole that was neither clearly marked, barricaded, nor cordoned off. As a result, she received a compound fracture to her leg. DPS eventually termi-nated Plaintiff’s employment because her injuries were deemed non-work related.{4} Plaintiff filed a complaint againstDOT alleging premises negligence. In

its answer, DOT acknowledged that it held itself open to the public and had a duty to make a reasonable inspection of the premises and warn visitors, including Plaintiff, of any dangerous conditions. In addition, DOT admitted that it owed a duty to Plaintiff as a visitor to exercise ordinary care to keep the premises safe.{5} DOTfiled amotion todismissonthe basis that the district court lacked sub-ject matter jurisdiction of Plaintiff’s tort claims. It asserted that because Plaintiff was a State employee seeking damages from the State arising out of the alleged negligence of the State while going to or coming from work, Plaintiff’s exclusive remedy is a workers’ compensation claim under the Act. The district court agreed and granted DOT’s motion. Plaintiff ap-peals.DISCUSSION{6} Section 52-1-6(E) reads in part:

No cause of action outside the Workers’ Compensation Act shall be brought by an employee or dependent against the employer or his representative, including the insurer, guarantor or surety of any employer, for any matter relating to the occurrence of or payment for any injury or death covered by the Workers’ Com-pensation Act.

Under this section, if the Act provides benefitsforawork-relatedinjury,anem-ployee is precluded from pursuing a neg-ligence action against her employer. See Galles Chevrolet Co. v. Chaney, 92 N.M. 618, 620, 593 P.2d 59, 61 (1979) (“If the Workmen’s Compensation Act applies, the employee’s negligence action, if any, is precluded.”). Thus, the question before us is whether the Act applies to Plaintiff’s claim and therefore precludes her claim of premises negligence against DOT. {7} Our review of a district court order granting a motion to dismiss for lack of subject matter jurisdiction is de novo. Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 6, 132 N.M. 207, 46 P.3d 668. Interpretation of the Act is a question of law which we also review de novo. Ortiz v. Overland Express, 2010-NMSC-021, ¶ 18, ___ N.M. ___, ___ P.3d ___ (“[W]e re-view issues concerning legislative intent de novo.”); Espinosa v. Albuquerque Publ’g Co., 1997-NMCA-072, ¶ 7, 123 N.M. 605, 943 P.2d 1058 (stating that we are not required to defer to the district court’s interpretation of a statute because statutory interpretation is a question of law).


The Act Does Not Provide Workers’ Compensation Benefits to Ordinary Commuters{8} A basic purpose of the Act is to com-pensate employees for injuries suffered in the course of their employment. See Rivera v. N.M. Highway & Transp. Dep’t, 115 N.M. 562, 565, 855 P.2d 136, 139 (Ct. App.1993).Accordingly,theActdefinescompensable injuries as those “arising out of and in the course of employment.” § 52-1-19. {9} Importantly, the Act excludes injuries suffered by employees during the ordinary commute to and from their employment. See, e.g., Flores v. McKay Oil Corp., 2008-NMCA-123, ¶ 14, 144 N.M. 782, 192 P.3d 777; Ramirez v. Dawson Prod. Partners, Inc., 2000-NMCA-011, ¶ 7, 128 N.M. 601, 995 P.2d 1043. This restriction, known as the “going and coming” rule, is codifiedatSection52-1-19inthefollowinglanguage:

As used in the Workers’ Com-pensation Act, unless the context otherwise requires, “injury by accident arising out of and in the course of employment” shall in-clude accidental injuries to work-ers and death resulting from ac-cidental injury as a result of their employment and while at work in any place where their employer’s business requires their presence but shall not include injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer’s negligence.

{10} The going and coming rule recognizes that the relationship between the worker and the employer is suspended between the time the worker leaves his place of employment, until he returns to work. See Flores, 2008-NMCA-123, ¶ 14 (“[T]he going and coming rule exists to make ev-eryday commuting between home and the workplace the employee’s business rather than the employer’s.”). Because a com-muting worker is subject to the same perils faced by all ordinary commuters, injuries suffered as a result of travel to and from work are noncompensable under the Act absent special circumstances. See 1 Arthur Larson, Larson’s Workers’ Compensation Law §13.01[1], at 13-3 (2008) (“[I]t is generally taken for granted that workers’ compensation was not intended to protect against all the perils of [the worker’s jour-

ney between home and factory].”); Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 9, 142 N.M. 583, 168 P.3d 155 (‘“[A]n employee [en route] to, or returning from, his place of employment, using his own vehicle[,] is not within the scope of his employment absent additional circumstances evidencing control by the employer at the time of the negligent act or omission of the employee.”’ (third alteration in original) (quoting Nabors v. Harwood Homes, Inc., 77 N.M. 406, 408, 423 P.2d 602, 603 (1967))). A principle rea-son for the rule is “the employee’s means of transportation, as well as his route are entirely within his discretion, unfettered by any control or power of control on the part of the employer.” Dombach v. Olkon Corp., 302 A.2d 270, 273 (Conn. 1972). {11} The going and coming rule is sub-ject to several exceptions. See Dupper v. Liberty Mut. Ins. Co., 105 N.M. 503, 506, 734 P.2d 743, 746 (1987) (discussing employee premises exception); Ramirez, 2000-NMCA-011, ¶¶ 11-17 (discussing traveling employee exception); Arias v. AAA Landscaping, 115 N.M. 239, 240-41, 849 P.2d 382, 383-84 (Ct. App. 1993) (discussing the employer’s conveyance exception, the special errand exception, and the dual purpose exception). DOT does not argue that Plaintiff’s claim falls within one of the recognized exceptions; rather, DOT asserts that because Plaintiff alleges negligence on the part of DOT, her claim falls within the scope of Section 52-1-19. We disagree. The Context of This Case Limits the Literal Application of Section 52-1-19{12} The statutory expression of the going and coming rule in New Mexico bases cov-erage on whether the employer was negli-gent in causing the worker’s injuries rather than on whether the accident occurred on the employer’s premises. Section 52-1-19 of the Act provides that “injury by accident arising out of and in the course of employ-ment” for which compensation is required “shall not include injuries to any worker occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which is not the employer’s negligence.” § 52-1-19 (emphasis added). DOT argues that under the complaint, the State is both Plaintiff’s employer (through DPS) and the alleged negligent owner and operator of the park-ing lot (through DOT). Therefore, asserts DOT, the literal definition of “injury byaccident arising out of and in the course of employment” of Section 52-1-19 applies,

and Plaintiff’s exclusive remedy is under and pursuant to the Act. We disagree. {13} DOT’s argument overlooks the ex-ception in Section 52-1-19 that “injury by accident arising out of and in the course of employment” means what it describes “unless the context otherwise requires[.]” (Emphasis added.) The phrase “unless the context otherwise requires” explicitly ac-knowledges that certain factual situations do not fall within the literal language of Section 52-1-19. For example, in Vukovich v. St. Louis, Rocky Mountain & Pacific Co., 40 N.M. 374, 60 P.2d 356 (1936), the plaintifffiledaclaimforworkers’compen-sationdeathbenefitstenmonthsafterthedate of the worker’s death, but over twenty months after the physical injury. Id. at 375, 60 P.2d at 356. The issue on appeal before our Supreme Court was whether the claim was barred by the statute that required the claimtobefiled“withinoneyearafterthedate of such injury.” Id. at 375-76, 60 P.2d at 357 (emphasis omitted). The plaintiff contended that the word “injury” could have two meanings: the physical injury or bodily hurt; or the legal injury giving rise to the cause of action resulting from the death. Id. at 376, 60 P.2d at 357. The plaintiff further relied on a provision of the Act, which at that time provided, in perti-nent part, “In this act, unless the context otherwise requires . . . the words ‘injuries sustained in extrahazardous occupations or pursuit,’ as used in this act shall include death resulting from injury.” Id. (emphasis added). Our Supreme Court held that under its plain meaning, the one-year statute of limitation was to be computed from the date of the physical injury which resulted in the death. As to the plaintiff’s argument that the quotedstatutorydefinitionof“injury”wasbroader, our Supreme Court concluded that, as recognized in the statute, the context “otherwiserequired”adifferentdefinitionof injury. Id. at 378, 60 P.2d at 358. We fol-low the same reasoning in this case with a view to interpreting the Act to give effect to all the provisions of the statute and to avoid an absurd result. See Mathieson v. Hubler, 92 N.M. 381, 394, 588 P.2d 1056, 1069 (Ct. App. 1978) (stating that courts are to “give effect to all of the provisions of a statute” and “reconcile different provisions so as to make them consistent and harmonious”); Ortiz, 2010-NMSC-021, ¶ 18 (adhering to the principle that if giving effect to the language of a statute as written is absurd or unreasonable, the court is to interpret the statute according to its obvious spirit or reason).


{14} This case provides a “context” which “otherwise requires” an alternative to the literal language of Section 52-1-19. DOT’s obligations and duties as the owner and operator of the commuter parking lot are completely separate and distinct from DPS’s status as Plaintiff’s employer. As es-tablished by the pleadings, DOT held itself open to the public and had a duty to make a reasonable inspection of the premises and warn visitors, including Plaintiff, of any dangerous conditions. At the same time, the commuter lot was not provided exclusively for State employees, and Plaintiff’s use of the parking lot was totally unrelated to her duties with DPS. In this sense, Plaintiff’s status as a DPS employee is completely separate and distinct from her status as a commuter using public transportation. See Tatrai v. Presbyterian Univ. Hosp., 439 A.2d 1162, 1166 (Pa. 1982) (holding that an employee who alleged negligence against her hospital employer for emergency room treatment was not precluded by the work-ers’ compensation statute because she was treated as a paying member of the public and her presence in the emergency room was not in the furtherance of her employer’s interests); Ruiz v. Chase Manhattan Bank, 588 N.Y.S.2d 251, 253 (N.Y. Civ. Ct. 1992) (holding that the plaintiff’s claim against the employer’s pharmacy was not precluded by the workers’ compensation statute when the public also shopped at the pharmacy and the employerdidnotofferspecialbenefitstoemployees for its use), aff’d, 621 N.Y.S.2d 345 (N.Y. App. Div. 1995).{15} Under DOT’s argument, the State is required to provide workers’ compensa-tion coverage for all commuters who are injured by the negligence of the State while traveling on State roads who also happen to work for the State. In addition, workers’ compensation would be the sole remedy of a municipal employee who is traveling to work on municipal transit and is injured due to the alleged negligence of a municipal employee. Given the strong policy against coverage for ordinary commuters, and the circumstances of this case, we hold that the context otherwise requires a limited ap-plication of the statutory going and coming rule set forth in Section 52-1-19. Singhas and Espinosa Do Not Compel a Different Result{16} DOT asserts that combining the result in Singhas v. New Mexico State Highway Department, 1997-NMSC-054, 124 N.M. 42, 946 P.2d 645, and Espinosa, 1997-NMCA-072, requires us to affirm. We disagree.

{17} In Singhas, the issue was whether the State Highway Department is an entity separate from the State Public Defender’s Department. 1997-NMSC-054, ¶¶ 1, 4. The workers were employed by the State Public Defender’s Department and traveling to a work-related conference, when they were involved in a car accident, which killed one worker and injured another. Id. ¶ 1. The workers received workers’ compensation benefitsfromtheStateandfiledaseparatenegligence action against the Highway Department alleging negligence in failing to properly stripe and place signs along the highway. Id. ¶¶ 2-3, 8. The district court found that the Highway Department could not shelter itself from the Act’s ex-clusive remedy because it was a “separate legal entity” from the Public Defender’s Department. Id. ¶¶ 1, 4. We reversed on the basis that the workers’ employer was not the Public Defender’s Department as a separate entity, but the State of New Mexico. Id. Our Supreme Court agreed and further held that the claim against the Highway Department was barred by the Act because the workers were already receiv-ingworkers’compensationbenefitsunderthe Act. Id. ¶ 8. Importantly, the workers in Singhas were in the course and scope of their employment at the time of the ac-cident. See Singhas v. N.M. State Highway Dep’t., 120 N.M. 474, 476, 902 P.2d 1077, 1079 (Ct. App. 1995) (“It is undisputed that Singhas was injured, and the dece-dent was killed, during the course of their employment with the Public Defender.”), aff’d, Singhas, 1997-NMSC-054, ¶ 1. The workersbothrecoveredbenefitsundertheAct from the Public Defender’s Department and sued the Highway Department for negligence.Plaintiff’scaseissignificantlydistinct because she was not injured in the course and scope of her employment with DPS; her injuries occurred while she was in the course of traveling as a member of the public to assume the duties of her employment. The sole nexus between the negligent actor, DOT, and her employer, DPS, is their joint status as agencies of the State. As discussed above, DOT’s status as the owner and operator of the parking lot and its obligations to Plaintiff as a member of the public bear no relation to Plaintiff’s status as an employee of DPS. {18} Unlike Singhas, which considered who the employer was, Espinosa consid-ered where the injury took place in relation to the place of employment. Espinosa, 1997-NMCA-072, ¶¶ 1-2. In Espinosa, the worker was walking in a crosswalk to

begin his shift some thirty minutes later when he was struck by a vehicle owned by his employer, which was negligently driven by a co-worker who was returning to the work place after a “mail run.” Id. The accident occurred some two miles from the employer’s premises. Id. On ap-peal, we acknowledged the “peculiarity” of our statutory going and coming rule, which bases coverage on the employer’s negligence instead of whether the accident occurred on the employer’s premises. Id. ¶ 9. After reviewing our State’s case law, we adopted the concurring opinion in Cuellar v. American Employers’ Insurance Co., 36 N.M. 141, 144-47, 9 P.2d 685, 688 (1932) (Watson, J., concurring in result), which “would make the [Act] a worker’s exclu-sive remedy in any going-and-coming situ-ation, regardless of time, place or circum-stances, as long as the injury was caused by the employer’s negligence.” Espinosa, 1997-NMCA-072, ¶ 12; see Cuellar, 36 N.M. at 144-47, 9 P.2d at 688. We held that prior case law compelled the conclu-sion that “injuries sustained while going to or from work may be brought within the statutorydefinitionof‘courseofemploy-ment’ by showing that these injuries were caused by the employer’s negligence, even when the injuries occurred off-premises.” Espinosa, 1997-NMCA-072, ¶ 13 (internal quotation marks and citation omitted). The issue in the case before us is not whether off-premises injuries can fall under the Act; the issue is whether the event giving rise to Plaintiff’s injuries constitutes an “injury by accident arising out of and in the course of employment” under Section 52-1-19. Insofar as Espinosa might otherwise shed light on the question before us, it is of no value because Espinosa does not consider the limiting phrase “unless the context otherwise requires” of Section 52-1-19. {19} Singhas and Espinosa do not indi-vidually control this case, and we decline to combine Singhas and Espinosa to create exclusive coverage under the Act. Neither case addresses Plaintiff’s factual situation—aStateemployeewhoisinjuredwhile commuting via public transportation to her job with a State agency due to the alleged negligence of another separate State agency in its capacity as the owner and operator of the premises where the injury occurred. We hold that the provi-sion of a temporary commuter parking lot in the context of this case is not incidental to Plaintiff’s work and would result in a an unreasonable application of Section 52-1-19.


CONCLUSION{20} We reverse the district court order granting DOT’s motion to dismiss and remand for further proceedings consistent with this opinion.{21} IT IS SO ORDERED. MICHAEL E. VIGIL, Judge

I CONCUR:LINDA M. VANZI, JudgeKENNEDY, Judge (dissenting).{22} Plaintiff is an employee of one agency of the state who alleges that she was injured because of the negligence of another state agency. She advanced two arguments in thiscase:first,thatthegoingandcomingrule removes her claim from workers’ compensation because she was not acting within the course and scope of her em-ployment at the time she was injured; and second, that the State waived its argument regarding the Act’s exclusivity because it was not included in its answer. Section 52-1-19 clearly states that employees going and coming to work who are injured by the negligence of their employer are subject to the exclusive remedy of the Act. Case law also clearly interprets this section of the Act to place Plaintiff squarely in the employ of the State and her claim within the exclusive remedy afforded by the Act. This is due both to her employer’s negligence and the injury occurring on her employer’s premises. Since Workers’ Compensation is a legislative creation assuring employers a limited exposure to the “unpredictable damages available outside its boundar-ies,” so long as the injury was accidental, Delgado v. Phelps Dodge Chino, Inc., 2001- NMSC-034, ¶ 12, 131 N.M. 272, 34 P.3d 1148, allowing an employee to sue in tort is serious business. Plaintiff did not disclose until her deposition that she was a state employee going to work when she was injured. Where and how she was injured place her squarely within the Act’s purview. The district court was correct in so ruling.{23} The majority opinion, however, grafts a “contextual” appendage onto the Act to allow any “mere commuter” injured by their employer’s negligence while on the way to work, including on their employer’s premises, to sue their employer in tort. Under Singhas and Espinosa, Plaintiff was both injured and employed by the state. Thus, the law is clear that Plaintiff’s injury occurred within the course and scope of her employment, and as a result, the Act constitutes her exclusive remedy. Delgado, 2001-NMSC-034, ¶ 12. Because I believe

the Act’s clear language, supported by well-established case law, answers Plain-tiff’s appeal, I respectfully dissent from the majority’s creation of a “contextual” com-muter exception to the “literal language of Section 52-1-19.” Majority Opinion ¶ 14. Such an exception amounts to a rewriting of the Act and is more properly left to our Legislature.BECAUSE SHE WAS BOTH EMPLOYED AND ALLEGEDLY INJURED BY THE STATE, PLAINTIFF CANNOT AVOID THE FACT THAT THE ACT CONSTITUTES HER EXCLUSIVE REMEDYThe Going and Coming Rule Does Not Apply to Injuries Caused by Employer Negligence{24} Section 52-1-19 states, “injury by accident arising out of and in the course of employment . . . shall not include injuries to any worker occurring while on his way to assume the duties of his employment or af-ter leaving such duties, the proximate cause of which is not the employer’s negligence.” (Emphasis added.). Working through the double negative leads to a conclusion that compensation is provided in going and coming situations where there is an injury to a worker, the proximate cause of which is the employer’s negligence. “If [the] plain-tiff was on his way to assume the duties of his employment and since [the] plaintiff claims [the] defendant was negligent, [Sec-tion] 52-1-19 and the cases construing that section would cause the . . . Act to apply.” Galles Chevrolet Co., 92 N.M. at 620, 593 P.2d at 61; see Mountain States Tel. & Tel. Co. v. Montoya, 91 N.M. 788, 790, 581 P.2d 1283, 1285 (1978). We held in 1983 that therewasasignificantdifferencebetweenthe common law going and coming rule and Section 52-1-19, Beckham v. Estate of Brown, 100 N.M. 1, 6, 664 P.2d 1014, 1019 (Ct. App. 1983), and have since reiter-ated the premise that employer negligence constitutes an exception within the statute to the application of the going and coming rule. Barton v. Las Cositas, 102 N.M. 312, 315, 694 P.2d 1377, 1380 (Ct. App. 1984). We recognized employer negligence as an exception to the going and coming rule most recently in Flores, speaking of the “possibility of compensation if the em-ployer were negligent” in the context of exceptions to the going and coming rule, 2008-NMCA-123, ¶ 12. The majority’s observation that “DOT does not argue that Plaintiff’s claim falls within one of the rec-ognized exceptions” but rather “within the

scope of Section 52-1-19” emphasizes only the statutory exception. Majority Opinion ¶ 11. Irrespective of whether employer negligence is an “exception,” however, there is no mistaking the statute’s intent: “a worker’s injury which occurs while going to or coming from work falls within the course of employment solely because it was caused by his or her employer’s negligence.” Espinosa, 1997-NMCA-072, ¶ 12 (internal quotation marks omitted). Employer negligence is fairly pled by DOT and therefore operates to foreclose application of the going and coming rule in this case.Plaintiff’s Course and Scope Argument Does Not Negate Her Status as an Employee of the State{25} Plaintiff’s complaint did not allege any facts suggesting that she was an em-ployee of the State, or that she was travel-ing to work. She did allege that her injury was caused in part by the negligence of the State. Her brief, however, states that it is undisputed that Plaintiff worked for the DPS in Santa Fe, and that she was injured in the DOT’s parking lot while walking to catch a “private commuter shuttle bus.” In her reply brief, she reiterates her argument that she was not acting within the course and scope of her employment when she was injured, but that she “was simply walking through a state-operated parking lot in order to catch a privately-owned bus in order to commute to her job in Santa Fe.” She denies that she was injured during the course and scope of her employment with DPSandalsospecificallycontends“thattheparking lot where she suffered her injuries was not part of her employer’s premises.”{26} Nevertheless, Plaintiff proves she appreciates the peril of the employer- neg-ligence exception. In her reply brief, she accuses DOT of “attempt[ing] to bootstrap [Plaintiff’s] employer into the workers’ compensation arena by asserting that [Plaintiff], a state employee, was injured in a parking lot maintained by another state agency, her employer’s negligence was a proximate cause of [her] injury.” She attempts to do this by distinguish-ing Singhas, which clearly stands for the proposition that an injury received by an employee of one state agency caused by the negligence of another state agency, is covered by the Act because it is the state, not the individual agency, that is the worker’s employer. 1997-NMSC-054, ¶ 4. As the Supreme Court observed in that opinion, Section 52-1-3 of the Act estab-lishes workers’ compensation coverage for


“forallpublicemployees,asdefinedintheWorkers’ Compensation Act, of all [s]tate agencies regardless of the hazards of their employment”anddefines“state”or“stateagency” as “the State of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions.” Section 52-1-3(A), (D); Singhas, 1997-NMSC-054, ¶ 4. It is as true today as it was then that the “[L]egislature has not attempted to distinguish the various state agencies and departments from the [s]tate itself.” Singhas, 1997-NMSC-054, ¶ 6 (internal quotation marks and citation omitted). Hence, until our Supreme Court or Legislature decides otherwise, Plaintiff is as much an employee of DOT as she is DPS for purposes of the Act.The Act’s Ultimate Policy Favors the Application of Workers’ Compensation as an Exclusive Remedy in this Case{27} “[T]he . . . Act is the product of legislative balancing of the employer’s as-sumption of liability without fault with the compensationbenefits to the employee.”Johnson Controls World Servs., Inc. v. Barnes, 115 N.M. 116, 118, 847 P.2d 761, 763 (Ct. App. 1993), overruled on other grounds by Delgado, 2001-NMSC-034, ¶ 16. When an employer is in compliance with the Act, its exclusivity provision re-sults in

a surrender by the employer and the employee of their rights to any other method, form or amount of compensation or determination thereof or to any cause of action at law, suit in equity or statutory or common-law right to remedy or proceeding what ever for or on account of such personal injuries or death of such employee than as provided in the Workers’ Compen-sation Act.

Singhas, 1997-NMSC-054, ¶ 4.{28} By basing the exception on em-ployer negligence while the employee is going to or coming from work, the statute recognizes a direct connection between employer and employee constituting an injury in the course and scope of employ-ment. Therefore, the exclusive remedy pro-vided by the Act covers any injury caused by employer’s negligence arising from employer/employee relationship when the employee is going to or coming from work. Considering the requirement that both the risk of injury and the proximate cause of that injury both arise from the employment, it seems appropriate to include injuries received by an employee going to work

whose injury is caused by an employer’s negligence within the Act’s exclusive rem-edy. See Flores, 2008-NMCA-123, ¶ 22. If the Act is a mechanism that limits an em-ployer’s liability in exchange for granting accelerated compensation to workers, then subjecting claims of employer negligence totheexclusivityoftheActmakessense—the remedy depends upon the employment relationship, and the benefits of theActaccrue to both parties. Johnson Controls World Servs., Inc., 115 N.M. at 118, 847 P.2d at 763. Conversely, allowing includes any employee going to work who is injured because of employer negligence to sue in tort because they are a “commuter” clearly upends this relationship, creating a false status based on the character of the going and coming that defeats the clear language and intent of the Act.WHAT IS A “CONTEXT” THAT MIGHT REQUIRE OTHERWISE?{29} New Mexico’s going and coming rule appears to contain an exception to an exception, including within the Act injuries caused by employer negligence “unless the context otherwise requires.” Section 52-1-19. We cannot proceed to evaluate this phrase by immediately eschewing a “literal definition of ‘injury by accident arisingout of and in the course of employment.’” Majority Opinion ¶ 13. To do so manufac-tures an exception to a well-established rule for “mere commuters.” The statute clearly includes injuries from employer negligence or injuries occurring on an em-ployer’s premises, regardless of negligence or “context.” Thus, the clear rule enunci-ated in both Singhas and Espinosa remains unaddressed, as the opinion constructs a suitable “context” to provide a result.{30} The majority’s “context” discus-sion begins with an analysis of Vukovich, because only that case has yet discussed “context otherwise requires” language in the Act. In that opinion, the Supreme Court rejected a worker’s claim that his death occurring ten months after his injury in a mine accident constituted a separate injury necessary to set in motion the Act’s statute of limitations period. The Supreme Court held that the “context otherwise requires” languageinthedefinitionofinjuryrequiredit to hold that the statute of limitations did not include death as a separate injury unto itself, even though death did not ensue from the plaintiff’s injury for ten months. The Court concisely stated the normative value that was argued:

It is urged that to declare the statute as having this meaning

may result in great hardship in particular cases, as where the em-ployee dies so short a time prior to expiration of a year from date of the injury as to render it physically impossibletoprepareandfiletheclaim within the year limited; that since the statute makes compens-able all actionable deaths within one year of the injury proximately causing same (1929 Comp. § 156-116), it could not have been intended to create the right and as to certain cases leave the depen-dents remediless.

Vukovich, 40 N.M. at 378, 60 P.2d at 358. However, the Court held that the context “otherwise require[d]” divorcing the origi-nal “injury” as the triggering event clearly expressed in the statute from the later “death resulting from injury.” Id. at 376, 60 P.2d at 357. “Courts cannot read into an act something that is not within the manifest intention of the Legislature, as gathered from the statute itself. To do so would be to legislate, and not to interpret. There is no ambiguity in this statute, and it neither requires nor admits of construction.” Id. at 379, 60 P.2d at 359.{31} The majority opinion fails to heed Vukovich’s message of judicial restraint, holding that DOT’s obligations and duties as owners and operators of a parking lot are “distinct from DPS’s status as Plain-tiff’s employer.” Majority Opinion ¶ 14. In this case, DOT’s alleged negligence in a location remote to the employee’s actual workplace is no different than the highway department’s negligence in Singhas failing to stripe and sign a public highway. In both instances, the state’s negligence contributed to the state employee’s injury. Singhas, 1997-NMSC-054, ¶ 4 (holding that the exclusivity provision of the Act bars all tort claims by employees of one state agency where the tortfeasor is another state agen-cy). Holding that Plaintiff was no more than a “commuter using public transportation,” Majority Opinion ¶ 14, is unavailing, as the mode of transport is immaterial to how an employee travels in the scope of her em-ployment. Section 52-1-19 designates the Act as the exclusive remedy for all injuries received as a result of employer negligence when the employee is going to and coming from work “regardless of time, place or cir-cumstances.” Espinosa, 1997-NMCA-072, ¶ 12. Singhas and Espinosa are clear that if there is a connection to the employment, the exclusive remedy applies. Commuters not employed by the state can sue DOT in tort,


but they may not seek workers’ compensa-tion. Commuters injured by an employer’s negligence on the way to work are subject to the Act’s exclusive remedy.{32} Similarly, the majority opinion mis-reads the holding in Singhas, by stating that Plaintiffs in that case were barred “because the[y]werealreadyreceiving...benefits.”Majority Opinion ¶ 17. This is incorrect. Plaintiffs’receiptofbenefitswasmentionedin the context of their dual persona claim. Singhas, 1997-NMSC-054, ¶¶ 7-8. Receipt ofbenefitsdoesnotchangeintheleastthestatus of the state as both employer and tortfeasor, nor does it change how Section 52-1-19 operates. Our Legislature has chosen to include within the Act negligent injuries caused by an employer while the employee is going and coming. This Court has endorsed that policy by incorporating employernegligenceintotheverydefini-tion of conduct within the employment relationship. Espinosa, 1997-NMCA-072, ¶ 12.{33} The State terminated Plaintiff ’s employment because it considered her injury “non work-related.” Despite the broad “contextual” change wrought here, Plaintiff asked us to hold only that her injury falls outside the Act because she was not in the course and scope of her em-ployment when it occurred. She attempts to distinguish Espinosa in her reply brief only to say that “there are no facts show-ing that [her] employer was negligent with respect to the unmarked construction hole in the Albuquerque parking lot.” This is also the argument accusing DOT of trying to “bootstrap” employment status from DPS. Clearly Plaintiff is mistaken, as the discussion above regarding Singhas clearly shows. However, DOT’s negligence in maintaining the parking lot, together with their being an integral part of the entity that is Plaintiff’s employer, directs attention to the majority’s discussion of the place of injury. Owing to Espinosa, the place of injury brings Plaintiff’s injury squarely within the scope of her employment.The Place of Injury May Constitute a Separate “Context” or Basis upon Which to Invoke Exclusivity{34} Since the State employed Plaintiff, DOT’s negligence caused an injury to Plaintiff on her way to work, the elements ofSection52-1-19aresatisfied.Ithereforedisagree with the majority’s rejection of Espinosa in this case. They dismiss it for not addressing the “context” language. Paradoxically, Espinosa may actually shed light on “context” by discussing how

premises ownership has come to almost eclipse employer negligence to play an important role in the analysis of whether an employee’s injury is work related. Espino-sa’s discussion of the “peculiarity” of New Mexico law, through Cuellar, suggests that the“othercontext”languagemightreflectNew Mexico’s “peculiar” position against the common law, which did not recognize an injury on an employer’s premises to be within the course and scope of employment absent employer negligence. Espinosa, 1997-NMCA-072, ¶¶ 8-10. Cuellar rec-ognized New Mexico’s departure from the norm by excluding injuries on an employ-er’s premises, yet allowed compensation for injuries caused by employer negligence. That opinion nevertheless tried to limit the application of employer negligence to only events “connected with the employment of the deceased in point of time, space, and circumstance.” Cuellar, 36 N.M. at 146, 9 P.2d at 688. Espinosa pointed out that in theinterveningsixty-fiveyears,ourcourtshave expanded the application of em-ployer negligence as the “sole[]” basis for compensation, regardless of time, place or circumstances. 1997-NMCA-072, ¶ 12.{35} A course left uncharted by the major-ity concerns the line of cases that Espinosa arguably recognizes as “the other context” of Section 52-1-19; Espinosa’s holding expands the rule allowing a worker’s re-covery under the Act based on an injury occurring on the employer’s premises as being specificallywithin the course andscope of employment. See Dupper, 105 N.M. at 506-07, 734 P.2d at 746-47; Lovato v. Maxim’s Beauty Salon, 109 N.M. 138, 141, 782 P.2d 391, 394 (Ct. App. 1989). Al-though time, place, and circumstances had not been part of the statute since the 1930’s, as a result of Cuellar, they nevertheless came to affect compensation. Hence, those considerations became another “context,” although one that was ultimately rejected when the Supreme Court quashed certiorari in Espinosa.The State Employed Plaintiff and Maintained the Parking Lot in Which She Was Injured{36} Given the nature of New Mexico’s Park and Ride and the extent to which it was utilized by state employees, Dupper’s statement “that the course of employment includes not only the time for which the employee is actually paid but also a rea-sonable time during which the employee is necessarily on the employer’s premises while passing to or from the place where the work is actually done” also negates the

Plaintiff’s position. 105 N.M. at 506, 734 P.2d at 746 (internal quotation marks and citation omitted). Subsequently our opin-ion in Espinosaclarifiedtheprinciplethatthe distance between the employer-owned location of injury and place where the em-ployee actually performs his work is of no legal consequence. 1997-NMCA-072, ¶¶ 11-12.{37} Singhas held that DOT’s negligence for road defects fell under the exclusive remedy of the Act, when they may injure a state employee. So too must this case, as defects in DOT property held out for public use are functionally identical to any defects found on public roadways. If such a result produces unintended consequences given the state’s recent foray into the enterprise of rapid transit, rewriting the Act to exempt commuters who are state employees from the Act’s exclusivity is certainly not the proper course for courts. Singhas already requires all state employees injured in the course of their work by state negligence on its highways to be subject to the Act. If, for example, it makes bad policy to designate workers’ compensation as the exclusive remedy for all state employees injured on the Rail Runner or at its stations by state negligence, such a policy must be abolished by the Legislature, not the courts. They may consider it to be just as bad a policy to al-low all state employees injured on the Rail Runner to seek their remedy in tort. It is simply not our role to reorder the delicately balanced relationships in this way.The Majority Opinion Improperly Creates a “Mere Commuter” Exception to Section 52-1-19{38} This Court should restrain itself to the arguments of counsel on appeal. Re-viewing the case de novo, we should not create a remedy based on arguments not presented (a new “context”). Plaintiff’s pleadings below studiously avoided ever mentioning that she was an employee going to work; yet, it is obviously so. Nowhere does Plaintiff request review of the statu-tory language by which the opinion grants license to the status of a mere commuter, a “context” allowing sixty years of this statute’s use to be abrogated. Assuming the truth of Plaintiff’s allegations, her injuries are certainly painful, debilitating, and ongoing. Under the current system, she may be left without a remedy because she never sought one under the Act’s exclusive remedy. Our Supreme Court recognized in Vukovich, that denying a claim for a worker’s death can wreak a hardship. Yet, the Court observed, “the fact that hardship


may result can furnish no warrant for the courts to supply what the Legislature has omitted or to omit what it has inserted.” 40 N.M. at 379, 60 P.2d at 359. Plaintiff’s claim is functionally no different from what was considered in Singhas. Section 52-1-19’s exception to the going and coming rule for employer negligence, leaves no way around the consequence that Plaintiff being a state employee, on state property, allegedly injured by state negligence. The breadth and number of employees impli-cated by this case’s policy considerations does not change the law or the relationship between Plaintiff and her employer. The fact that her tort claim is barred by the Act’s exclusivity provision is a predictable result based on precedent of long standing.

THE OPINION SHOULD AFFIRM THE DISTRICT COURT’S REJECTION OF DOT’S ALLEGED WAIVER OF JURISDICTION{39} I believe tying up a loose end is beneficialwithregardtoPlaintiff’sargu-ment that the district court committed a procedural error in hearing DOT’s motion to dismiss.{40} Plaintiff’sbriefingspecificallyaversshe never asserted she was injured by the negligence of her employer, on premises owned by her employer, or in the course and scope of her employment. She never filedaclaimundertheAct.Plaintiffarguesthat by not pleading the Act in its answer as an affirmative defense,DOTwaivedthe issue and may not raise it by motion.

DOT’s answer reserved the right to rely on anyaffirmativedefensethatmightbecomeknown or available during discovery and amend its answer accordingly.{41} DOT argues that in the absence of any factual allegations in the complaint as-serting an employment relationship and/or coming and going, it was not until the dis-covery process that the defense presented itself. DOT moved to amend its answer promptly. It also moved for dismissal at that time. Such a scenario is proper under the circumstances, and DOT should prevail on this issue. Montano v. House of Carpets Inc., 84 N.M. 129, 130, 500 P.2d 414, 415 (1972); Prot. & Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149, ¶ 17, 145 N.M. 156, 195 P.3d 1 (establishing a lack of jurisdiction under Rule 1-012(B)(1) NMRA baseduponPlaintiff’saffidavits). RODERICK T. KENNEDY,

Judge


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Legal Assistant/ParalegalLegal Assistant needed for established mid- sized law firm. 5+ years experience required, and previ-ous workers compensation experience preferred. Must have excellent software and organizational skills. Must be self motivated and use time ef-ficiently to complete tasks within deadlines. Ex-cellent benefit, Salary DOE. Please send resume with salary requirements to: Yenson Lynn, Allen & Wosick P.C. Attn: Hiring Manager, 4908 Alameda Blvd, Albuquerque, NM 87113 or Fax to: 505-268-6694. No Phone Calls.

Briefs, Research, AppealsLeave the writing to me. Experienced, Rea-sonable. Contact [email protected], (505) 281-6797

Deputy General CounselNew Mexico Corrections DepartmentThe Corrections Department is hiring for the position of Deputy General Counsel (Attorney-Advanced) at its Central Office in Santa Fe. Applicants must have at least four years of ex-perience in criminal, employment, civil rights, tort law, and/or union matters. The position is responsible for representing the Department in defense of inmate pro se civil suits, employee disciplinary actions, employment law matters, arbitrations and other union matters, and in miscellaneous civil and criminal matters. The position is also responsible for reviewing/ap-proving contracts and policies. Some interaction with inmates. Preference given to candidates with labor relations experience from a manage-ment perspective, and to those with personnel/employment law experience who are able to give competent legal advice to management as needed. Salary range $43,056-$76,544 per year. Applicants must apply with State Personnel Office at www.state.nm.us/spo, job #24043. In addition, please send a copy of resume to Trish Gallegos, Office of General Counsel, PO Box 27116, Santa Fe, NM 87502-0116 or e-mail [email protected]. The application period is September 27, 2010, to October 11, 2010. The Department is an EOE. Office space for lease!

Suites as small as one or two office, only $300.00 per month. Larger suites up to 3,910/sf. Electric, gas janitorial all included. Parking available for tenants and clients. High speed internet avail-able. Building located in the heart of downtown. 320 Gold SW. Call Martha Carpenter 998-1567 or Trudy Jones 878-0008 at Maestas & Ward Commercial Real Estate for more information.

Part Time Legal AssistantPart time legal assistant in a small Santa Fe firm. Experience preferred. Knowledge in Outlook, Word and Excel required. Flexible work schedule a possibility. Please fax resume to 505-988-5704.

Professional Office DowntownOffice with Separate Secretarial Area if Need-ed, Office Furnishings Optional, Free Client Parking, Library/Conference Room, Kitchen, Telephone, High-Speed Internet, Copier, Fax, Security System, Close to Courthouses. 715 Tijeras Ave. NW. Call Holly at 842-5924.

Associate AttorneySutin Thayer & Browne seeks an associate attor-ney with commercial and tax experience to join our Albuquerque office for an immediate open-ing. Applicants must be licensed in New Mexico. All replies will be kept confidential. Please send a letter of interest, resume, writing sample and transcript to Recruiting Coordinator, Sutin Thayer & Browne, P. O. Box 1945, Albuquerque, NM 87103 or email to [email protected] or fax to 505-888-6565.

Downtown Office SpaceOcho Building, 423 6th St. Newly remodeled and under new management. Two blocks from courts. Three single offices starting at $450.00 , one 3 office and one 2 office suite available. Includes parking, all utilities (except phone line), general receptionist, high-speed internet, VOIP phone system, copier available, two conference rooms and security system. Contact Charles Lill, 247-3900 or [email protected].

www.nmbar.org


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





Friday, October 22, 2010 African American Performing Arts Center

New Mexico Expo 310 San Pedro NE Albuquerque, NM

Drive through Gate 3 at the New Mexico Expo off San Pedro Performing Arts Center is immediately to the north

Presented by the

ELECTRONIC EVIDENCE: CAN YOU GET IT IN? CAN YOU PRESERVE IT?

FREE PARKING


AGENDA 8:00 - 8:45 REGISTRATION

8:45 - 9:00 WELCOME

Shammara Henderson President NMBLA

9:00 - 11:00 GEOGRAPHIC INFORMATION SYSTEMS, A POWERFUL LITIGATION TOOL

Kenny Calhoun Manager, GIS Services Daniel B. Stephens & Associates, Inc.

Howard Thomas Assistant U.S. Attorney

11:00 - 11:15 BREAK

11:15 - 12:15 COURTROOM PRESENTATION

Randi McGinn Attorney at Law

12:15 - 1:15 LUNCH On Your Own

1:15 - 2:15 ELECTRONIC EVIDENCE ISSUES OF ADMISSIBILITY AND PRESERVATION

Justice Edward Chávez New Mexico Supreme Court

Judge Robert Robles New Mexico Court of Appeals

Judge Linda Vanzi New Mexico Court of Appeals

2:15 - 2:30 BREAK

2:30 - 3:30 ETHICAL ISSUES AND OVERWHELMING THE “LITTLE GUY”

Regina York Moss Associate, Keleher & McLeod Law Firm

Christine Long Attorney, New Mexico Disciplinary Board

3:30 - 4:30 PROFESSIONALISM IN THE ELECTRONIC AGE

Michael Hoses Assistant U.S. Attorney


TUITION $189 Please return registration

with payment to: NMBLA

P.O. Box 695 Albuquerque, NM 87103‐0695

Visit http://www.newmexicoblacklawyersassociation.org/index.html

to learn more about the New Mexico Black Lawyers Association

CLE CREDIT 4 HOURS General

1 HOUR Professionalism 1 HOUR Ethics

Friday, October 22, 2010 African American Performing Arts Center

New Mexico Expo 310 San Pedro NE Albuquerque, NM

Drive through Gate 3 at the New Mexico Expo off San Pedro Performing Arts Center is immediately to the north

Presented by the


FREE PARKING


AGENDA 8:00 - 8:45 REGISTRATION

8:45 - 9:00 WELCOME

Shammara Henderson President NMBLA

9:00 - 11:00 GEOGRAPHIC INFORMATION SYSTEMS, A POWERFUL LITIGATION TOOL

Kenny Calhoun Manager, GIS Services Daniel B. Stephens & Associates, Inc.


11:00 - 11:15 BREAK

11:15 - 12:15 COURTROOM PRESENTATION

Randi McGinn Attorney at Law

12:15 - 1:15 LUNCH On Your Own

1:15 - 2:15 ELECTRONIC EVIDENCE ISSUES OF ADMISSIBILITY AND PRESERVATION

Justice Edward Chávez New Mexico Supreme Court

Judge Robert Robles New Mexico Court of Appeals

Judge Linda Vanzi New Mexico Court of Appeals

2:15 - 2:30 BREAK

2:30 - 3:30 ETHICAL ISSUES AND OVERWHELMING THE “LITTLE GUY”

Regina York Moss Associate, Keleher & McLeod Law Firm

Christine Long Attorney, New Mexico Disciplinary Board

3:30 - 4:30 PROFESSIONALISM IN THE ELECTRONIC AGE

Michael Hoses Assistant U.S. Attorney


TUITION $189 Please return registration

with payment to: NMBLA

P.O. Box 695 Albuquerque, NM 87103‐0695

Visit http://www.newmexicoblacklawyersassociation.org/index.html

to learn more about the New Mexico Black Lawyers Association

CLE CREDIT 4 HOURS General

1 HOUR Professionalism 1 HOUR Ethics

REGISTRATIONLast Name _______________________________________________________________________________________

First Name _____________________________________________________________________ MI _______________

Firm/Organization _________________________________________________________________________________

Address __________________________________________________________________________________________

Email Address _____________________________________________________________________________________

Phone Number _____________________________________________ Bar Number ____________________________

OR REGISTER ONlINE vIA PAYPAl @http://www.newmexicoblacklawyersassociation.org/cle.html

E lecTron ic Ev idence : Can you geT iT IN?

Can you Preserve iT?

OR REGISTER ONLINE VIA PAYPAL @

http://www.newmexicoblacklawyersassociation.org/cle.html

REGISTRATION

LAST NAME __________________________________________________

FIRST NAME ______________________________________ MI ________

FIRM/ORGANIZATION ___ ______________________________________

ADDRESS ___________ _________________________________________

EMAIL ADDRESS _______________________________________ ______

PHONE NUMBER _____________________ BAR NUMBER ______ _____

Purchase Orders Welcome!! Questions? Call

NMBLA Treasurer 505.450.1032

http://www.newmexicoblacklawyersassociation.REGISTRATION



http://EVIDENCE:

http://EVIDENCE:

http://www.newmexicoblacklawyersassociation.org/index.html

http://www.newmexicoblacklawyersassociation.org/cle.html

http://Orders

http://Orders

At the Medical Rehabilitation Center (MRC) of New Mexico, Dr. Richard Radecki, who is Board Certified in Physical Medicine and Rehabilitation, provides medical/legal services including Independent Medical Evaluations, Impairment Ratings, Chart Reviews, and Expert Witness testimony. He is certified to perform Independent Medical Evaluations by ABIME for the AMA Guides to the Evaluation of Permanent Impairment for 4th, 5th, 6th Editions. For referrals, please contact Anita at 505-977-0107.

3874 Masthead NE, Bldg. GAlbuquerque, NM 87109

Ph: [email protected]


http://www.mrcofnewmexico.com