March 2, 2011 • Volume 50, No. 8 - State Bar of New Mexico · Bar Bulletin - March 2, 2011 - Volume 50, No. 8 1 ... Standard Fee $199 Indian Law Section Member, ... 827-4925. Third

Bar Bulletin - March 2, 2011 - Volume 50, No. 8 1

Paper Flowers, by Deborah Moll (see page 3) The Rainbow Man, Santa Fe

Inside This Issue

March 2, 2011 • Volume 50, No. 8

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

Prosecutors Section Annual Awards ................................................4

Public Law Section Annual Award .................................................5

Corrections to Court Opinions ...........................6

A Coach’s Insights for Successful Associate Mentoring, by Marilyn C. O’Leary ....................................7

Clerk’s Certificates .............................................14

Rules/Orders

No. 11-8300-012: In the Matter of the Amendments of Rule 1-077 NMRA and Adoption of New Forms 4-831 and 4-832 NMRA of the Rules of CivilProcedure for District Courts ........................18

From the New Mexico Supreme Court

2011-NMSC-004, No. 32,197: State of New Mexico Ex Rel. King v. Lyons ..21

From the New Mexico Court of Appeals

2011-NMCA-009, No. 28,618: State v. Montoya ...........................................41

2011-NMCA-010, No. 28,836: Dunning v. Buending....................................45

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2 Bar Bulletin - March 2, 2011 - Volume 50, No. 8

CENTER FOR LEGAL EDUCATION

On the cutting edge of technology and relevant legal education content

www.nmbarcle.org • 505.797.6020

MARCH 4The 26th Annual Bankruptcy Year In Review8:30 a.m. - 5:00 p.m.6G, 1E❒ Standard Fee $219 ❒ Bankruptcy Section Member, Government, Legal Services Attorney, Paralegal $189

MARCH 11Accounting for Lawyers8:30 a.m. - 4:00 p.m. 6G❒ Standard Fee $199 ❒ Government, Legal Services Attorney, Paralegal $169

MARCH 30Medicine of Personal Injury9:00 a.m. - 4:00 p.m.6G❒ Standard Fee $199❒ Government, Legal Services Attorney, Paralegal $169

MARCH 31First Annual Solo and Small Firm Institute:Social Media and Communication9:00 a.m. - 4:15 p.m.4G, 1E, 1P❒ Standard Fee $179 ❒ Solo and Small Firm Section Member, Government, Legal Services Attorney, Paralegal $149

APRIL 1Skeptically Determining the Limits of Expert Testimony and Evidence, Part 2Schedule pending

APRIL 14Indian Law 1019 a.m. - 4:30 p.m.5.9G❒ Standard Fee $199 ❒ Indian Law Section Member, Government, Legal Services Attorney, Paralegal $169

APRIL 15Improving the Human Resource Professional/ Attorney Relationship9:00 a.m. - 4:15 p.m.5G, 1E❒ Standard Fee $199❒ Government, Legal Services Attorney, Paralegal $169

MARCH 15 2010 Intellectual Property Institute8:00 a.m. – 4:00 p.m.4.5G, 1P, 1E❒ $209

2010 Real Property Institute8:15 a.m. – 4:00 p.m.6.5G❒ $219

MARCH 29Basics of Family Law (2008)8:15 a.m. – 3:15 p.m.6.5G❒ $209

2010 New Mexico Administrative Law Institute8:30 a.m. – 3:15 p.m.4.5G, 1E, 1P❒ $209

MARCH 30Internet for Lawyers: Legal and Investigative Research, Free O� ce Technology Applications, Social Media, and Ethics9:00 a.m. – 3:30 p.m.5G, 1E❒ $209

LIVE PROGRAMS STATE BAR CENTER, ALBUQUERQUE

VIDEO REPLAYS STATE BAR CENTER, ALBUQUERQUE

http://www.nmbarcle.org


Notices ................................................................................................................................................................4Corrections to Court Opinions ....................................................................................................................6A Coach’s Insights for Successful Associate Mentoring, by Marilyn C. O’Leary ...............................7 Legal Education Calendar ............................................................................................................................9Writs of Certiorari ......................................................................................................................................... 11List of Court of Appeals’ Opinions ........................................................................................................... 13Clerk’s Certificates ......................................................................................................................................... 14Recent Rule-Making Activity ..................................................................................................................... 17Rules/Orders

No. 11-8300-012: In the Matter of the Amendments of Rule 1-077 NMRA and Adoption of New Forms 4-831 and 4-832 NMRA of the Rules of Civil Procedure for District Courts ................................................................................................................................. 18


2011-NMSC-004, No. 32,197: State of New Mexico Ex Rel. King v. Lyons ........................ 21


2011-NMCA-009, No. 28,618: State v. Montoya ........................................................................ 41

2011-NMCA-010, No. 28,836: Dunning v. Buending ............................................................... 45

Advertising ..................................................................................................................................................... 48

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

Board of Editors Kimberly L. Alderman Autumn Gray Ian Bezpalko Danny W. Jarrett Cynthia A. Christ Tiffany L. Sanchez Jocelyn C. Drennan Kelly A. Thomas Jennifer C. Esquibel Joseph Patrick Turk

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 ©2011, 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

March 2, 2011, Vol. 50, No. 8

State Bar WorkShopS

March

3 Landlord/Tenant Workshop 5:30–7:30 p.m., State Bar Center, Albuquerque

16 Lawyer Referral for the Elderly Workshop 10–11:15 a.m., Presentation 1–4 p.m., Clinics Agnes Kastner Head Senior Center, Hobbs

17 Lawyer Referral for the Elderly Workshop 10:15–11:30 a.m., Presentation 1:30–4 p.m., Clinics Roswell Joy Senior Center, Roswell

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

DeborahMollhasbeenpracticinglawinSantaFeforoverthirtyyears.ShehasalsobeenphotographingthebeautyofNew Mexico for as many years. Her subjects include impression of flowers, landscapes, structures and wildlife. Presently, she is working exclusively in digital format.

taBle of contentS

MeetingS

March

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

4 Bankruptcy Law Section Annual Meeting, noon, State Bar Center

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

8 Lawyers Professional Liability Committee, noon, State Bar Center

9 Children’s Law Section BOD, noon, Juvenile Justice Center

9 Criminal Law Section BOD, noon, State Bar Center

10 Elder Law Section BOD, noon, State Bar Center

10 Intellectual Property Law Section BOD, noon, Bauman, Dow & Leon, PC

mailto:[email protected]







noticeSWith respect to the public and to other persons involved in the legal system:

I will respect and protect the image of the legal profession, and will be respectful of the content of my advertisements or other public communications.

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 1st Judicial District Court Exhibits in criminal, civil, domestic relations, 1988–1995 March 11 (505) 455-8275 and children’s court cases2nd Judicial District Court Exhibits in criminal cases 1994–1996 March 3 (505) 841-7596/740110th Judicial District Court Domestic cases 1992–1993 March 18 (575) 461-2764

court neWSN.M. Court of AppealsMemoranda Filed on the Summary Calendar

The Rules of Appellate Procedure have been amended to establish a limit of 35 pages for any memorandum filed in response to a notice of proposed sum-mary disposition. See Rule 12-210(F) and (G) NMRA (effective Feb. 9, 2011). If amemorandum is longer than 35 pages, itmust include a statement of complianceindicating the word count for the memo-randum does not exceed 11,000 words.If a memorandum fails to comply withthese requirements, the Court of AppealsClerk’s Office will accept and file-stamp the memorandum, but it will not be docketedor considered by the Court. The party who filed the noncomplying memorandum will have seven days from the original filing date to file a memorandum that corrects anydeficiencies. Failure to correct deficienciesmay result in sanctions, including a possible finding of contempt and/or disposition ofthe appeal based on the failure to timelyrespond to the notice of proposed summary disposition. Direct questions to Court ofAppeals Chief Clerk Gina Maestas, (505)827-4925.

Third Judicial District CourtNotice of Mass Reassignment of Cases Effective March 7, a mass reassignment of all domestic relations cases in the 3rd Judicial District Court previously assigned to District Judge Douglas R. Driggers,

Division VII, will be assigned to District Judge Susan Riedel, Division II. Domes-tic relations cases previously assigned to District Judge Mike Murphy, Division III, will be assigned to District Judge Jacinto Palomino, Division, IV. Pursuant to Rule 1-088.1 NMRA, parties will have 10 daysfrom March 9 to challenge or excuse JudgeRiedel and Judge Palomino.

State Bar neWSAttorney Support Group

• March 21, 7:30 a.m.–Morning groupsmeet regularly on the third Monday of the month.

• March 7, 5:30 p.m.–Afternoon groupsmeet regularly on the first Monday ofthe 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.

Bankruptcy Law SectionAnnual Meeting and CLE The Bankruptcy Law Section will hold its annual membership meeting during lunch at the the 26th Annual Bankruptcy Year in Review March 4 at the State Bar Center. Contact Tom Walker, [email protected], to place an item on the agenda. See the CLE-At-a-Glance insert in the Feb. 23 (Vol. 50, No. 7) Bar Bulletin for

program details. Register online at www.nmbarcle.org or fax to (505) 797-6071.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites members of the legal community to bring a lunch and attend Handling a Social Security Disability Claim (1.0 general CLE credit) presented by Victor Roybal. The program will be held from noon to 1 p.m., March 9, at the State Bar Center. The registration fee is $16 for attorneys, $10 for members of the Parale-gal Division, and $15 for non-members. Registration begins at the door at 11:45 a.m. For more information, contact CherylPassalaqua, (505) 247-0411, or EvonneSanchez, (505) 222-9356.

Prosecutors SectionAnnual Prosecutor Awards

The State Bar Prosecutors Section is so-liciting nominations for awards the section will present at the Association of District Attorneys’ Spring Conference to be held May 4–6 in Bernalillo. These awards are meant to honor those prosecutors practicing in New Mexico from local, state, federal and tribal agencies who best represent the spirit in upholding justice in 2010.

The five annual award categories are as follows:• Prosecutor of the Year. The nominee

must have five or more years of full-time prosecution experience. The nomination




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ember benefit of the WeekMshould address the individual’s outstand-ing characteristics, prosecution history, work with the public and contributions to the quality of prosecution, and the image of prosecutors.

• Law Enforcement Prosecutor. This nomination should address the support and assistance the prosecutor has pro-vided to law enforcement agencies and the prosecutor’s commitment of time in assisting law enforcement.

• Community Service Prosecutor. This nomination should address the service this prosecutor has provided to the com-munity and the results of those efforts; e.g., volunteering at rape crisis centers, nursing homes, youth mentorship orga-nizations, etc.

• Legal Impact Prosecutor. This nomina-tion should address the prosecutor’s outstanding character and the significant impact that resulted from the prosecu-tor’s efforts in criminal prosecution(s) and the significant and positive impact or effect on the law.

• Rookie Prosecutor of the Year. The nominee must have been prosecuting for no more than two years. The nomi-nation should address the prosecutor’s dedication to criminal prosecution and commitment to making prosecution a career.

In addition, the Prosecutors Section is soliciting nominations for the Homer Campbell Award, dedicated to honoring a prosecutor or prosecution team best exem-plifying the pursuit of justice for victim(s) of child maltreatment/abuse. Nominations should be submitted for receipt no later than April 4 to Michael P. Sánchez, c/o 12th Judicial District Attor-ney’s Office, 1000 New York Ave., Suite 101,

Alamogordo, NM 88310-6904; fax: (575) 437-2590; or e-mail: [email protected]. The nominees will be presented to a committee for selection. Visit www.nmbar.org/AboutSBNM/sections/Prosecutors/prosecutorsannualawards.html to view previous recipients.

Public Law SectionAnnual Public Lawyer Award The Public Law Section is currently ac-cepting nominations for the Public Lawyer of the Year Award, which will be presented April 29. Visit www.nmbar.org/About Us/Sections/Public Law/Lawyer Awards to view previous recipients and award criteria. Send nominations by 5 p.m., March 16, to Doug-las Meiklejohn, [email protected], or by mail to New Mexico Environmental Law Center, 1405 Luisa St. #5, Santa Fe, NM 87505-4074. The selection committee will consider all nominated candidates and may nominate candidates on its own.

Young Lawyers Division2011 Summer Fellowships The Young Lawyers Division is offering two fellowships for the summer of 2011 to law students who are interested in working in public interest law or the government sector. The fellowship awards are intended to provide the opportunity for law students to work for public interest entities or in the government sector. The fellowship awards, depending on the circumstances of the posi-tion, could be up to $3,000 for the summer.In order to be eligible, applicants must be a current law student in good standing with their school. Applications for the fellow-ship must include: (1) a letter of interest that details the student’s interest in public interest law or the government sector; (2) a resume; and (3) a written offer of employ-ment for an unpaid legal position in public interest law or the government sector for the summer of 2011. Applications containing offers of employment that are contingent upon the successful completion of a back-ground check will not be considered unless verification of the successful completion of the background check is also provided.Submit applications to Samantha M. Jarrett, YLD Summer Fellowship Coordinator, Jackson Lewis LLP, 4300 San Mateo Blvd. NE, Suite B260, Albuquerque, NM 87110. Applications must be postmarked by March 31. Direct questions to Samantha Jarrett, [email protected] or (505) 878-0515.

other BarSN.M. Criminal Defense Lawyers AssociationCLE Seminar The New Mexico Criminal Defense Law-yers Association will offer Family Violence, Family Matters: Important Considerations in Domestic Violence and Shaken Baby Cases (6.2 general CLE credits) March 18 in Albuquerque. The seminar will feature the new science on shaken baby cases as well as case law and motions practice updates, techniques on investigation, and working with medical experts. To register, visit www.nmcdla.org or call (505) 992-0050.

unMFree Library Services for New Mexico Attorneys • Check out circulating books. • Delivery (fax, e-mail, or mail) of articles

or other documents available in our col-lection. (Requests must include an exact citation.)

• Interlibrary loan of materials from other law libraries. (The Law Library does not charge a fee for this service, but the attorney will be responsible for any fees assessed by the lending library.)

• Onsite access to research databases such as Westlaw-Pro, LexisNexis Academic, Loislaw, Shepard’s, RIA Checkpoint, and many others.

• Onsite access to LexisNexis Academic and Loislaw at the UNM branch campus libraries in Valencia County, Gallup, and

All New Mexico attorneys must notify both the Supreme Court and the State Bar of changes in contact information.

Supreme Court E-mail: [email protected] Fax: (505) 827-4837 Mail: PO Box 848

Santa Fe, NM 87504-0848

State BarE-mail: [email protected]: (505) 797-6019Mail: PO Box 92860 Albuquerque, NM 87199Online: www.nmbar.org

addreSS changeS

GEiCOAn auto policy with GEICO is one of the

smartest choices you can make. New GEICO policy holders report average annual savings of $500. And as a member of the State Bar, you could quality for an exclusive member

savings opportunity. Visit geico.com or call 1-800-368-2734. Don’t forget to mention your State Bar

affiliation to see how much your membership could save you.



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Submit

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publication.

correctionS to court opinionS

Several Supreme Court and Court of Appeals opinions in recent issues of the Bar Bulletin incorrectly reflected “2010” in the opinion dates. Those opinions and the issues in which they appeared are listed below correctly. We regret the error and apologize for any inconvenience.From the New Mexico Supreme Court 2011-NMSC-001, No. 31,442: State v. Wilson (Feb. 2 issue) 2011-NMSC-002, No. 31,724: Albuquerque Commons Partnership v.

City Council of the City of Albuquerque (Feb. 9 issue) 2011-NMSC-003, No. 30,782: State v. Garcia (Feb. 16 issue)From the New Mexico Court of Appeals 2011-NMCA-001, No. 28,565: State v. Candelaria (Jan. 26 issue) 2011-NMCA-002: Diamond v. Diamond (Feb. 2 issue) 2011-NMCA-003, Nos. 28,248/28,263: Edwin Smith LLC v. Clark (Feb. 2 issue) 2011-NMCA-004, No. 29,280: Gallegos v. Nevada General Insurance Co.

(Feb. 2 issue) 2011-NMCA-005, No. 28,536: Molina v. Allstate Indemnity Company (Feb. 9 issue) 2011-NMCA-006, No. 29,893: Armijo v. Pueblo of Laguna (Feb. 9 issue) 2011-NMCA-007, No. 28,693: State v. Gonzales (Feb. 9 issue) 2011-NMCA-008, No. 29,108: Baca v. Los Lunas Community Programs

(Feb. 16 issue)

Los Alamos (licenses provided by the UNM Law Library).

• Advice concerning the licensing of low- cost online legal resources.

For more information about the UNM Law Library and any of these free services, visit http://lawlibrary.unm.edu, call (505) 277-0935, or e-mail [email protected].

Law Library HoursTo May 14Building & CirculationMonday–Thursday: 8 a.m.–10p.m.Friday 8 a.m.–6 p.m.Saturday 8 a.m.–5 p.m.Sunday noon–8 p.m.ReferenceMonday–Friday 9 a.m.–6 p.m.Saturday No reference Sunday noon–4 p.m

other neWSSocorro Legal Aid Office Closing Due to recent reductions in funding, the Socorro office for New Mexico Legal Aid closed Feb. 4. Residents of Socorro County should call New Mexico Legal Aid in Albuquerque.

301 Gold Avenue SW, Albuquerque, NM 87102or PO Box 25486 87125-5486(505) 243-7871 or (866) 416-1922Fax (505) 842-9864

Serving Bernalillo, Sandoval,Socorro, Torrance and Valencia counties.

Residents of Sierra County should call New Mexico Legal Aid in Las Cruces.

600 East Montana, Ste. D, Las Cruces, NM 88001(575) 541-4800 or (866) 515-7667Fax (575) 541-4860

Residents of Catron County should call New Mexico Legal Aid in Silver City.

301 West College Avenue, Ste. 17, Silver City, NM 88061(575) 388-0091 or (866) 224-5097Fax (575) 388-0094 Serving Catron, Grant, Hidalgo and Luna counties.



http://lawlibrary.unm.edu



When you were a new lawyer, were you introduced to practicing law by the sink-or-swim method, or did you have the guid-

ance of a mentor or coach along the way? The difference between a new lawyer who is guided to develop his or her own strengths and one who is not is often the difference between an anxiety-ridden associate who doesn’t live up to his or her potential and a confident associate who develops his or her strengths and enjoys a successful practice of law.

Many of us have experienced the sink-or-swim method of supervi-sion. The young attorney is perfunctorily given an. assignment, told to find the file, and expected to draft a pleading or show up ready to argue a motion. People live through that. They even learn (on their own) how to become lawyers—maybe even good lawyers. They often learn from seeing what not to do instead of what to do. But they may not develop the skills necessary to progress in the field, such as knowing when to apply the rules of ethics, how to get clients using their talents and interests, and how to enjoy the practice of law.

The associate guided by a supervisor who takes the supervision role seriously is far better equipped to find an area of law or a way to practice law consistent with his or her strengths and talents than is a sink-or-swim counterpart. This attorney will have acquired the skills that will allow him or her to find a home in the law as an excellent lawyer in a way that benefits the associate and the firm.

Using Coaching Skills as a MentorCoaching is a relatively new and quickly growing field utilized by businesses and individuals to enhance skills, discover and develop strengths and talents, and promote professional and personal devel-opment. It differs from consulting in that coaching is a process-based approach whereby an individual client sets the agenda and the coach helps the client achieve his or her goals over a period of time.

Mentoring, on the other hand, is a time-honored tradition with a broad variety of models. Using a coaching approach, a supervising attorney asks questions, listens, and expects associates to come up with their own answers. They help associates set goals and provide accountability. They guide associates to develop their talents and interests in finding a practice area and growing their practice. Three Levels of ListeningThe foundation of good coaching is the ability to listen well. Most of us are usually too busy thinking about what we’re going to say in response to what we’re hearing. We’re focusing more on what we’re thinking than what the other person is saying. It has been said that one of the deepest needs of most people is simply to be heard. Listening well is an effective way to build relationships. It also helps the person to whom you’re listening to sort out thoughts and feelings. And of course, it’s an effective way to get information. There are three levels of listening.

• At Level I we’re listening to what the speaker is saying, but our focus is on ourselves. What does what the person is say-ing mean to me? If an associate comes to you for clarification about an assignment, you might be thinking, “Oh no, is he only that far along? Will he be done in time to help me?”

• At Level II our focus is sharply on the speaker. We’re listening

for words, expressions, emotions, what’s not being said. When you listen at Level II, you listen to the words and also for what is behind the words. What has not been said? What is the person feeling about what she is saying? Is he or she anxious, relaxed, confident? What values underlie the speaker’s words? Does he or she like work? Is family important to him or her? Does he or she respect his or her co-workers?

• At Level III you have a global awareness. You’re aware of what your senses are telling you. You’re also aware of your intuition. When listening at this level you may not know why you are picking up on certain information. Some people use their intuition and don’t even know it. It’s important to check out your intuition with the person to be sure it’s accurate.

While the three levels of listening are described separately, the use of different levels at different times is appropriate. In fact, we often go from level to level during a single conversation. The skill is in knowing what level we’re using and why.

Helping Associates Set Effective Goals After you’ve listened well and believe you understand what the associate is telling you, it’s time to ask questions. Find out what is important to the associate. Get more information. Listen to the answers. Ask good follow-up questions. Help set specific, measur-able, and action oriented goals. Provide account-ability by asking the associate what he or she wants to be accountable for—what will he or she do by when, then follow up on it. For example, “In two weeks I will join X group with the goal of contributing to the group and becoming an officer;” or “I will write an article for the firm blog post on a specific new case by next month.”

Helping Associates Develop a Successful PracticePractice Area. Developing a practice area builds upon an associate’s interests, talents, skills, and experience to help establish his or her unique place in the legal community. By listening for their interests and values you can help guide new attorneys into areas of practice they will enjoy and excel in.

Business development. People who approach business develop-ment from an understanding of their talents and preferences will find it enjoyable and natural. Business development includes networking, speaking, writing, working with organizations, volunteering in the community, and developing outside interests. What is the associate good at? Writing, speaking, listening? Guide associates to develop realistic plans. Don’t send an introverted as-sociate out to meet a crowd of people, and don’t bury an extrovert

A CoACh’s InsIghts for suCCessful AssoCIAte MentorIng By Marilyn C. O’Leary

The associate guided by a

supervisor who takes the

supervision role seriously is

far better equipped to find

an area of law or a way to

practice law consistent with

his or her strengths and tal-

ents than is a sink-or-swim

counterpart.

continued on next page


in the back room writing blog posts. Since most work comes from current clients, listening to clients is a skill to be modeled for and nurtured in associates.

One’s Place in the Firm. Being a member of a law firm involves effective teamwork, leadership, and management. To progress within one’s firm, an associate must also develop skills to participate in firm management groups, join in cross-marketing efforts, and form relationships with attorneys outside of one’s practice group or local office. These skills demand confidence, communication, and goal setting. They don’t just happen. These are skills that can be learned and enhanced with the supportive guidance of a mentor or a coach.

Management and Leadership Skills. Asking questions about where associates see their strengths will help identify which associates can be groomed for management and leadership positions. Promoting those strengths will help the associate develop them.

The best lawyers use their unique abilities, hone their skills, and develop confidence. Often they need help to do this, or they might stray off the path onto believing that they have to be like someone else in order to be successful. That’s a detour that can bring short-term success but can’t be sustained. Supervising attorneys can use coaching skills to enhance the professional development of young

attorneys. Doing so can be rewarding for both the supervising at-torney and the associate.

Author’s Note: Thanks to Sue Meyer, an associate with the law firm of Nossaman, LLP, in Irvine, California, for her suggestions on this article.

About the AuthorMarilyn O’Leary brings almost 30 years in the legal profession to her work as a certified pro-fessional coach. She recently retired from the UNM School of Law where for six years she headed the Utton Transboundary Resources Center. She was lead articles editor of the Natural Resources Journal, founding member of the State Bar Natural Resources, Energy and Environmental Law Section, Public Util-ity Commissioner, and an AV-rated attorney in private practice. She has co-authored books

and articles, including the Model Interstate Water Compact (Univer-sity of New Mexico Press) (with G. Muys and G. Sherk). O’Leary obtained her coaching certification from the Coaches Training Institute in San Rafael, California (www.thecoaches.com) and is certified by the International Coaching Federation.

For assistance with interpreting the New Mexico Rules of Professional Conduct visit www.nmbar.org and select Attorneys/Members, Member Services, Ethics Advisory Opinions to search the archive.

Send original questions regarding one’s own conduct to the Ethics Advisory Committee through the State Bar’s general counsel, Richard Spinello, at [email protected].

Ethics Advisory opinions

A Benefit of Membership

Have a quick question? Need a quick answer?Call the Ethics Helpline at 1-800-326-8155

http://www.thecoaches.com




legal education March

4 26th Annual Bankruptcy Year in Review6.0 G, 1.0 EState Bar CenterCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

8 Estate and Gift Tax AuditsTeleseminar1.0 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

9 Handling a Social Security Disability Claim1.0 GState Bar CenterParalegal Division(505) 247-0411 or (505) 222-9356

11 Accounting for Lawyers6.0 GState Bar CenterCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

15 2010 Real Property InstituteVideo Replay6.5 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

15 Intellectual Property InstituteVideo Replay4.5 G, 1.0 E, 1.0 PCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

15-16 FSLA Update: Overtimeand Other Developments in the Workplace, Parts 1 and 2Teleseminar2.0 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

16 Family Violence Family Matters: Important Considerations in Domestic Violence and Shaken Baby Cases6.2 GNew Mexico Criminal Defense Lawyers Association(505) 992-0050www.nmcdla.org

22 Ethics for Supervising AttorneysTeleseminar1.0 ECenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

24 Estate Planning for Pre- and Post-Nuptial AgreementsTeleseminar1.0 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

29 Age Discrimination in the WorkplaceTeleseminar1.0 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

29 2010 New Mexico Administrative Law InstituteVideo Replay4.5 G, 1.0 E, 1.0 PCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

29 Basics of Family Law (2008)Video Replay6.5 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

30 Internet for Lawyers: Legal and Investigative Research, Free Office Technology Applications, Social Media, and EthicsVideo Replay5.0 G, 1.0 ECenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

31 First Annual Solo and Small Firm Institute: Social Media and Communication4.0 G, 1.0 E, 1.0 PState Bar CenterCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org
















legal education www.nmbar.org

april

1 Employee Background Checks: Avoiding LiabilityTeleseminar1.0 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

5–6 Debt Collection Liability and Strategies for Businesses, Parts 1 and 2Teleseminar2.0 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

12 Creditor Interests in Partnership, LLC and S Corp InterestsTeleseminar1.0 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

13 Legislative Update 2011State Bar CenterParalegal Division1.0 G(505) 247-0411 or (505) 222-9356

14 Ethics Issues for Transactional AttorneysTeleseminar1.0 ECenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

14 Indian Law 1015.9 GState Bar CenterCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

15 Improving the Human Resource Professional/Attorney Relationship5.0 G, 1.0 EState Bar CenterCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

19–20 Structuring, Administering and Investing Charitable Endowments, Parts 1 and 2Teleseminar2.0 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

26 2011 Retaliation Claims UpdateTeleseminar1.0 GCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org

29–30 2011 New Mexico Collaborative Law Symposium13.2 GState Bar CenterCenter for Legal Education of NMSBF(505) 797-6020www.nmbarcle.org












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

effective March 2, 2011

Writs of certiorari

as updated By the clerk of the neW Mexico supreMe court

petitions for Writ of certiorari filed and pending:Date Petition Filed

NO. 32,863 Pena v. Inn of the Mountain Gods Resort (COA 29,799) 2/18/11NO. 32,861 State v. Donald M. (COA 30,342) 2/18/11NO. 32,862 Glynn v. Taxation & Revenue Department (COA 29,453) 2/17/11NO. 32,860 State v. Stevens (COA 29,357) 2/17/11NO. 32,853 State v. Parrish (COA 29,058) 2/16/11NO. 32,852 State v. Pieri (COA 29,492) 2/16/11NO. 32,851 State v. Bobbi B. (COA 29,935) 2/15/11NO. 32,850 State v. Jacob N. (COA 30,737) 2/15/11NO. 32,849 State v. Rascon (COA 30,561) 2/14/11NO. 32,848 State v. Gallegos (COA 30,702) 2/14/11NO. 32,847 State v. Baker (COA 29,698) 2/11/11NO. 32,846 State v. Perez (COA 30,449) 2/11/11NO. 32,845 State v. Gallegos (COA 30,701) 2/11/11NO. 32,844 Gonzales v. Performance Painting, Inc. (COA 29,629) 2/9/11NO. 32,843 State v. Manzanares (COA 29,335) 2/9/11NO. 32,842 State v. Urquizo (COA 30,681) 2/9/11NO. 32,841 State v. Wood (COA 29,766) 2/9/11NO. 32,840 State v. Olivas (COA 27,953) 2/9/11NO. 32,800 State v. Spearman (COA 30,493) 2/8/11NO. 32,835 State v. Castillo (COA 28,863) 2/4/11NO. 32,786 Rodriguez v. Bravo (12-501) 2/4/11 Response due 3/18/11 by extnNO. 32,782 State v. Silva (COA 28,711) 2/2/11NO. 32,833 State v. Quiroz (COA 28,845) 1/31/11NO. 32,827 Bryant v. Guadalupe County (12-501) 1/19/11 Response filed 2/21/11NO. 32,821 Perry v. Heredia (12-501) 1/19/11 Response filed 2/14/11NO. 32,813 Marquez v. Tapia (12-501) 1/14/11 Response due 3/9/11 by extnNO. 32,814 Chavez v. State (12-501) 1/13/11 Response due 3/9/11 by extnNO. 32,799 Randall v. Franco (12-501) 1/5/11 Response filed 2/21/11NO. 32,795 Wesley v. State (12-501) 1/5/11 Response due 3/9/11 by extnNO. 32,791 Snider v. State (12-501) 1/3/11 Response filed 2/21/11

certiorari granted But not yet suBMitted to the court:(Parties preparing briefs) DateWrit IssuedNO. 32,291 State v. Torres (COA 29,603) 4/23/10NO. 32,302 Lion’s Gate Water v. NM State Engineer (COA 28,630) 6/2/10 (On rehearing)NO. 32,360 State v. Figueroa (COA 28,798) 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. 32,430 State v. Muqqddin (COA 28,474) 8/2/10NO. 32,436 Estate of Jaramillo v. Meteor Monument (COA 28,799) 8/9/10NO. 32,483 State v. Jackson (COA 28,657) 8/19/10NO. 32,571 State v. Cunningham (COA 27,884) 9/15/10NO. 32,548 State v. Robles (COA 30,118) 9/27/10NO. 32,577 May v. DCP Midstream LP (COA 29,331/29,490) 9/27/10NO. 32,534 Bustos v. Hyundai Motor Company (COA 28,240) 10/18/10NO. 32,589 State v. Ordunez (COA 28,297) 10/18/10NO. 32,602 State v. Marez (COA 30,233) 10/18/10NO. 32,603 Holguin v. Fulco Oil (COA 29,149) 10/18/10NO. 32,604 Cox v.

NM Dept of Public Safety (COA 28,658) 10/18/10NO. 32,605 State v. Franco (COA 30,028) 10/18/10NO. 32,570 City of Albuquerque v. Montoya (COA 28,846) 10/27/10NO. 32,510 State v. Swick (COA 28,316) 10/28/10NO. 32,632 State v. Dominguez-Meraz (COA 30,382) 11/5/10NO. 32,677 State v. Rivera (COA 29,317) 12/3/10NO. 32,690 Joey P. v. Alderman-Cave Milling & Grain Co. (COA 29,120) 12/3/10NO. 32,696 Herbison v. Chase Bank (COA 30,630) 12/3/10NO. 32,697 State v. Amaya (COA 28,347) 12/3/10NO. 32,702 Stone v. County of Quay (COA 30,426) 12/7/10NO. 32,695 Diamond v. Diamond (COA 30,009/30,135) 12/20/10NO. 32,707 Smith LLC v. Synergy Operating LLC (COA 28/248/28/263) 12/20/10NO, 32,716 Derizotis v. Tomada (COA 30,679) 1/10/11NO. 32,736 State v. Powell (COA 29,232) 1/10/11NO. 32,776 Sais v. New Mexico Department of Corrections (COA 30,785) 1/10/11NO. 32,756 Lenscrafters v. Kehoe (COA 28,145) 1/11/11NO. 32,713 Bounds v. D’Antonio (COA 28,860) 1/27/11NO. 32,717 NM Farm and Livestock Bureau v. D’Antonio (COA 28,860) 1/27/11


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

NO. 32,770 State v. Sneed (COA 30,467) 1/27/11NO. 32,781 State v. Puliti (COA 29,509) 1/27/11NO. 32,789 Chatterjee v. King (COA 29,823) 1/27/11NO. 32,742 State v. Martinez (COA 30,637) 1/31/11NO. 32,734 State v. Flores (COA 29,018) 2/7/11NO. 32,804 State v. Servantez (COA 30,414) 2/7/11NO. 32,704 Tri-State v. State Engineer (COA 27,802) 2/9/11

certiorari granted and suBMitted to the court

Submission Date(Submission = date of oral argument or briefs-only submission)

NO. 31,100 Allen v. LeMaster (12-501) 2/15/10NO. 31,567 State v. Guthrie (COA 27,022) 5/11/10NO. 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. 32,139 San Juan Ag. Water Users Assn. v. KNME-TV (COA 28,473) 8/9/10NO. 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) 9/14/10NO. 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. 32,130 State v. Cruz (COA 27,292) 10/14/10NO. 32,094 State v. Flores (COA 27,647) 10/27/10NO. 32,311 Rodriguez v. Permian Drilling Corp. (COA 29,435) 11/15/10NO. 32,170 State v. Ketelson (COA 29,876) 11/16/10NO. 32,344 Provencio v. Wenrich (COA 28,882) 11/16/10NO. 32,263 State v. Williams (COA 28,034) 12/14/10NO. 32,447 Mendoza v.

Tamaya Enterprises (COA 28,809) 1/10/11NO. 32,486 City of Rio Rancho v. Amrep (COA 28,709) 1/11/11NO. 32,489 City of Rio Rancho v. Cloudview Estates (COA 29,510) 1/11/11NO. 32,340 Rivera v.

American General (COA 28,691) 1/12/11NO. 32,379 State v. Luchetti (COA 28,447) 1/31/11NO. 32,425 State ex rel. CYFD v. Michael C (COA 29,394) 1/31/11

NO. 32,488 High Mesa General Partnership v. Patterson (COA 28,802) 2/14/11NO. 32,175 Kittell v. Lovett (COA 29,693) 2/23/11NO. 32,234 State v. Trujillo (COA 29,870) 2/23/11NO. 32,320 State v. Vasquez (COA 29,800) 2/23/11NO. 32,585 Fliss v. Blakes Lotaburger (COA 29,166) 2/23/11NO. 32,524 Republican Party v.

Tax & Revenue Dept. (COA 28,292) 3/14/11NO. 32,444 State v. Stanley (COA 28,288) 3/14/11NO. 32,456 State ex rel. CYFD v. Sarah B. (COA 29,169/29,203) 3/14/11NO. 32,594 Smith v. Durden (COA 28,896) 3/15/11NO. 32,505 Charley v. Franklin Corporation (COA 28,876) 3/22/11NO. 32,542 Quintero v. Department of Transportation (COA 28,875) 3/22/11NO. 32,545 State ex rel. CYFD v. Octavio F. (COA 29,469) 3/23/11

petition for Writ of certiorari denied:

NO. 32,720 Reed v. Gutierrez (COA 28,249) 2/9/11NO. 32,727 State v. Gauna (COA 30,457) 2/9/11NO. 32,798 State v. Johnson (COA 30,530) 2/9/11NO. 32,808 State v. Lopez (COA 30,504) 2/9/11NO. 30,812 State v. Muniz (COA 30,496) 2/9/11NO. 32,796 Griego v. Graves (COA 30,621) 2/10/11NO. 32,818 State v. Zamora (COA 29,081) 2/10/11NO. 32,820 State v. Townsend (COA 28,981) 2/16/11NO. 32,822 State v. Orozco (COA 30,557) 2/16/11NO. 32,825 Grassie v. Roswell Hospital Corporation (COA 28,050) 2/16/11NO. 32,826 Grassie v. Roswell Hospital Corporation (COA 28,050) 2/16/11NO. 32,834 Lawson v. State (12-501) 2/16/11NO. 32,839 Levin v. Romero (12-501) 2/16/11NO. 32,824 SM Aircraft v. Raburn (COA 30,762) 2/17/11

Writ of certiorari granted and reManded to district court:

NO. 32,743 DeLuca v. Janecka (12-501) 2/16/11NO. 32,775 Wilcox v. Janecka (12-501) 2/16/11

petition disMissed for failure to perfect appeal:

NO. 32,532 Gutierrez v. Hatch (12-501) 2/21/11

http://nmsupremecourt.nmcourts.gov


Published OPiniOns

Date Opinion FiledNo. 29138 3rd Jud Dist Dona Ana CR-08-1086, STATE v B HALL (reverse) 2/15/2011

unPublished OPiniOns

No. 28859 1st Jud Dist Los Alamos CV-02-1317, FARMERS INS CO v X CHEN (affirm) 2/14/2011No. 29462 11th Jud Dist McKinley CR-07-222, STATE v H HAUCK (affirm) 2/14/2011No. 29869 2nd Jud Dist Bernallillo LR-08-8, STATE v R WILLIAMS (affirm) 2/14/2011No. 29348 2nd Jud Dist Bernalillo DM-07-2373, S PARR v J ERIDON (affirm) 2/16/2011No. 30588 2nd Jud Dist Bernalillo JQ-07-114, CYFD v MARY ANN M (affirm) 2/16/2011No. 30650 12th Jud Dist Lincoln LR-09-24, RUIDOSO VILLAGE v L GARRISON (dismiss) 2/16/2011No. 30732 3rd Jud Dist Dona Ana CR-09-135, FR-09-19, STATE v L RIOS (affirm) 2/16/2011No. 30758 2nd Jud Dist Bernalillo DM-05-11, A CARLSON v K CARLSON (affirm) 2/16/2011No. 30774 3rd Jud Dist Dona Ana CR-08-1182, STATE v J ACEVEDO (dismiss) 2/16/2011No. 29296 1st Jud Dist Rio Arriba CV-07-214, E GURULE v FORD MOTOR CO (affirm) 2/17/2011No. 29731 5th Jud Dist Lea CR-08-373, STATE v C LITTLE (affirm) 2/18/2011No. 30750 2nd Jud Dist Bernalillo CV-09-5487, I CEDRINS v R SHRESTHA (dismiss) 2/18/2011No. 30784 11th Jud Dist San Juan CR-10-19, STATE v T MESCAL (reverse) 2/18/2011

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

effective feBruary 18, 2011

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 CertifiCate DateD January24, 2011

clerk’s certificatesfroM the neW Mexico supreMe court

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

telePhOne Changes

Richard Andre Bachand8636 N. 96th LanePeoria, AZ 85345623-239-2108623-594-8101 (fax)[email protected]

Sarah J. BatzliN.M. HumanServices DepartmentChild SupportEnforcement Division445 Camino del Rey, Suite CLos Lunas, NM 87031505-222-0856505-222-0869 (fax)[email protected]

Bidtah N. BeckerNavajo Nation Department of JusticePO Box 2010Window Rock, AZ 86515-2010928-871-7510928-871-6200 (fax)[email protected]

Charlotte Benson2100 E. Cornell DriveTempe, AZ [email protected]

Emma D. BoawnDoughty & West, P.A.20 First Plaza, NW, Suite 412Albuquerque, NM 87102505-242-7070505-242-8707 (fax)[email protected]

Jon BollerN.M. LegislativeCouncil Service490 Old Santa Fe Trail,Room 411Santa Fe, NM [email protected]

Kathleen Brockel8600 Tamarisk Ravine CourtPinckney, MI [email protected]

Hon. William Hamer BroganTwelfth Judicial District Court1000 New York Avenue, Room 203Alamogordo, NM 88310575-439-1333575-443-2448 (fax)

Somer Khanlarian ChyzKnox County Public Defender1101 Liberty StreetKnoxville, TN [email protected]

Renee Marie EscamillaSandia National LaboratoriesPO Box 5800 MS-0180Albuquerque, NM 87185-0180505-284-4176505-284-4358 (fax)[email protected]

Ben S. FurthThe Furth Firm780 S. Walnut, #5Las Cruces, NM 88007575-522-3996575-532-5815 (fax)

Jason W. Galbraith2682 Calmwater DriveLittle Elm, TX 75068469-229-4476469-229-4105 (fax)[email protected]

Denise S. HallAragon & Soto Hall, L.L.C.4004 Carlisle, NE, Suite P (87107)PO Box 91773Albuquerque, NM 87199-1773505-999-1259505-217-3539 (fax)[email protected]

Hon. Randolph M. HammockLos Angeles Superior Court111 N. Hill StreetLos Angeles, CA [email protected]

Shammara Haley HendersonOffice of the U.S. Attorney201 Third Street, NW, Suite 900 (87102-3305)PO Box 607Albuquerque, NM 87103-0607505-346-7274505-346-7296 (fax)

Edward Joseph Hendrick, Jr.Edward J. Hendrick, Jr., P.C.6645 Butterfield Ridge DriveLas Cruces, NM [email protected]

Debra A. HillLa Cerra Sueno, L.L.C.243 W. PortlandPhoenix, AZ [email protected]

Wanda EM HofmannOffice of the Attorney General177 N. Church Avenue, Suite 1105Tucson, AZ 85701520-638-2800520-628-6050 (fax)[email protected]

Gilberto Juarez4129 S. Meadows Road, #313Santa Fe, NM [email protected]

Suedeen G. KellyPatton Boggs, L.L.P.2550 M Street, NWWashington, DC 20037202-457-6494202-457-6315 (fax)[email protected]

Michael W. Kiernan9500 Osuna Road, NE, #1035Albuquerque, NM [email protected]

Erin E. LangenwalterLewis and Roca, L.L.P.201 Third Street, NW, Suite 1950 (87102)PO Box 1027Albuquerque, NM 87103-1027505-764-5422505-764-5464 (fax)[email protected]

Linda L. LautigarU.S. Department of the InteriorOffice of Natural Resources RevenuePO Box 25165 MS 61230BDenver, CO 80225-0165303-231-3494303-231-3362 (fax)[email protected]

Marcia E. Lubar542 Black Bear Loop, NEAlbuquerque, NM 87122

Carlos N. MartinezMartinez Law Office629 Marble, NWAlbuquerque, NM 87102505-504-2849505-349-4771 (fax)[email protected]

Jonlyn MartinezLaw Office of Jonlyn M. Martinez, L.L.C.PO Box 1805Albuquerque, NM 87103-1805505-247-9488505-247-9566 (fax)[email protected]

Greg A. McAteeGreg McAtee, A.P.C.11622 El Camino Real, Suite 100San Diego, CA [email protected]






















clerk’s certificates http://nmsupremecourt.nmcourts.gov.

Mark J. McGannonLaw Offices of Arthur W. Tuverson7201 W. Lake Mead Blvd., Suite 410Las Vegas, NV 89128702-631-7855702-631-5777 (fax)[email protected]

Julie Ann MeadePO Box 3789St. Thomas, VI [email protected]

Richard J. MietzN.M. Children, Youth & Families DepartmentPO Box 820Las Vegas, NM 87701-0820505-425-9335 Ext. [email protected]

Michael Davis MurphyOffice of the District Attorney400 N. Virginia Avenue, Suite G-2Roswell, NM 88201-6222575-622-4121575-622-4126 (fax)[email protected]

Ronald C. Norman423 Sixth Street, NWAlbuquerque, NM 87102505-242-8750505-503-7898 (fax)

Katharine Burdic PenaOffice of the Public Defender505 Marquette Avenue, NW, Suite 120Albuquerque, NM 87102505-841-5100505-841-6953 (fax)[email protected]

Katherine M. PettitCalifornia State Court of Appeal, 2nd District300 S. Spring StreetLos Angeles, CA 90013-1230213-830-7461

Maureen S. Reed107 Highway 70Ruidoso, NM 88345

J. Michael RobertsADT Security Services, Inc. One Town Center Road Boca Raton, FL 33486 561-981-4334561-431-3797 (fax) [email protected]

Michael Patrick Sanchez Office of the District Attorney 1000 New York Avenue, Suite 101Alamogordo, NM 88310-6904 575-437-3640575-437-2590 (fax) [email protected]

Paul V. SanchezOffice of the District Attorney 920 Salazar Road, Suite A Taos, NM 87571575-758-8683575-758-7802 (fax) [email protected]

Brandon Hale SargentU.S. Navy JAG Corps1300 Shetter Avenue, #2203 Jacksonville Beach, FL 32250 [email protected]

Stacey E. Scherer Mountain States Insurance Group5051 Journal Center Blvd., NE (87109)PO Box 93254Albuquerque, NM 87199-3254 505-764-1412505-764-3600 (fax) [email protected]

Sanjay S. Schmidt1919 3rd StreetLivermore, CA [email protected]

Joseph E. ShattuckMarco & Shattuck1009 E. Lohman AvenueLas Cruces, NM 88001 575-993-5470800-743-1631 (fax) jshattuck@marcoshattucklaw. com

Morris D. Stagner407 Adobe DriveMidland, TX 79707432-689-2040

Cynthia Aragon StanalandAragon & Soto Hall, L.L.C.4004 Carlisle, NE, Suite P (87107)PO Box 91773Albuquerque, NM 87199-1773505-999-1259505-217-3539 (fax)[email protected]

Patricia Aileen Suttmann2126 Pauline Blvd., Unit 204Ann Arbor, MI [email protected]

Richard Valdez818 Fifth Street, NWAlbuquerque, NM 87102505-369-4015505-246-2930 (fax)[email protected]

Val Ann Van Buren4250 N. Zion Valley DriveFayetteville, AR 72703-5085479-442-3771

Laura K. VegaThe Law Firm of David C. Chavez651 Highway 314Los Lunas, NM 87031505-865-9696505-865-9699 (fax)[email protected]

Heather C. Wilde123 31st AvenueSeattle, WA [email protected]

Maria Zannes928 Avenida Manana, NEAlbuquerque, NM [email protected]

Clerk’s CertifiCate Of Change

tO inaCtive status

Effective January 3, 2011:Douglas A. BarrPO Box 6584Albuquerque, NM 87197-6584

Effective January 3, 2011:Kirsten L. Kranz3372 Daley Center Drive, Apt. 1512San Diego, CA 92123-4632

Effective December 20, 2010:Marcella Hilary Brooker122 SE 22nd AvenuePortland, OR 97214-1617

Effective January 4, 2011:Kevin K. Chapman1352 San Juan DriveSanta Fe, NM 87505-3475

Effective January 4, 2011:Timothy James Hartzer426 Tulane Place, NEAlbuquerque, NM 87106-2156

Effective January 4, 2011:Ruth M. McIlhenny Gorme2324 SW 79th DriveGainesville, FL 32607-3483

Effective January 8, 2011:Alok Raghunath Lathi1845 Camelot DriveLas Cruces, NM 88005-1644

Effective January 13, 2011:Gussie A. Lord9030 Timberwolf CourtVienna, VA 22182-1729

Effective January 19, 2011:Rebecca Marie MadridOffice of the County District Attorney3960 Orange Street, Suite 500Riverside, CA 92501-3644

Effective January 11, 2011:Bruce J. MacAllister1473 Bishops Lodge RoadSanta Fe, NM 87506-0004

Effective January 12, 2011:Paul O. PrimrosePO Box 5732Valley Spring, TX 76885-5732




















clerk’s certificates http://nmsupremecourt.nmcourts.gov.

Effective January 12, 2011:Leif A. ThompsonLeif Thompson Law Office306 Main Street, Suite 304Ketchikan, AK 99901-6433

Effective January 5, 2011:Amos StegeClark County District Attorney’s OfficePO Box 552212Las Vegas, NV 89155-2212

Effective December 22, 2010:Steven J. Ver Helst10800 Corona Avenue, NEAlbuquerque, NM 87122-3137

Clerk’s CertifiCate Of WithdraWal

Effective January 24, 2011:Karen S. BaldwinLaw Office of Karen S. BaldwinPO Box 223891Princeville, HI 96722-3891

Effective January 28, 2011:John Francis Caffrey13609 Quaking Aspen, NEAlbuquerque, NM 87111

Effective January 13, 2011:Howard Whitfield Crail, Jr.PO Box 4673Cave Creek, AZ 85327-4673

Effective January 26, 2011:Tatiana DuBois Engelmann-Corp1030 Nashville Avenue, S.W.Albuquerque, NM 87105

Effective January 20, 2011:Joseph Zaid Fandey112 E. First AvenueTruth or Consequences, NM 87901

Effective March 4, 2011:Jerold A. Greenker6165 Eagles Nest DriveColorado Springs, CO 80918

Effective January 25, 2011:Patrick Anthony GrovesKeel & Nassour508 W. 14th StreetAustin, TX 78701

Effective January 20, 2011:Daniel J. HernandezBerger Briggs Real Estate & Insurance, Inc.PO Drawer KAlbuquerque, NM 87103

Effective January 13, 2011:Andrew M. IvesUniversity of Iowa1310 Teg DriveIowa City, IA 52246

Effective January 25, 2011:Douglas Haig McKinnon, Jr.57 Camino de AvilaTijeras, NM 87059-7611

Effective January 18, 2011:Sigrid E. OlsonPecos Valley Medical Center, Inc.PO Box 710Pecos, NM 87552-0710

Effective January 24, 2011:James H. Russell, Jr.703 Paseo de la LomaSanta Fe, NM 87501

Effective January 13, 2011:David Robert Sierra3813 Hunter AvenueDes Moines, IA 50311

Effective January 21, 2011:Cassandra StubbsACLU Capital Punishment Project201 W. Main Street, Suite 402Durham, NC 27701

Effective January 25, 2011:Michael J. Toretti100 Denniston Avenue, Unit 414Pittsburgh, PA 15206

Effective February 7, 2011:Joseph P. WalshLydy & Moan, Ltd.4930 Holland-Sylvania RoadSylvania, OH 43560

Effective January 25, 2011:Walter Lewis Williamson13170 Central Avenue, SE, PMB #284Albuquerque, NM 87123-5588

Effective January 27, 2011:Frederick D. Woods, Jr.4 Hastings SquareCambridge, MA 02139

Clerk’s CertifiCate Of indefinite susPensiOn

frOm membershiP in the state bar Of neW mexiCO

Effective January 14, 2011:James W. Klipstine, Jr.Klipstine, Fredlund & Bowling, L.L.C.1601 North Turner, Suite 400Hobbs, New Mexico 88240575-393-1300575-393-1869 (fax)

Clerk’s CertifiCate Of reinstatement tO aCtive status

As of February 14, 2011:Stephen M. Crampton1794 Woodside CircleTupelo, MS 38801

As of January 31, 2011:Adrian Thomas Oglesby2103 Los Luceros, NWAlbuquerque, NM 87104

David B. Weaver2801 Via Fortuna, Suite 100Austin, TX 78746

Clerk’s CertifiCate Of reinstatement

tO inaCtive status

As of January 31, 2011:Jeffrey Raymond McCombs2201 Main Street, Suite 400-18Dallas, TX 75201

Clerk’s CertifiCate Of disbarment

On January 18, 2011:Michael L. RunnelsPO Box 2198Ruidoso, NM 88355-2198575-808-1061575-258-3749 (fax)[email protected]




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

effective feBruary 16, 2011

Pending PrOPOsed rule Changes OPen fOr COmment:

Comment Deadline1-006 Time. 02/23/112-104 Time. 02/23/113-104 Time. 02/23/115-104 Time. 02/23/116-104 Time. 02/23/117-104 Time. 02/23/118-104 Time. 02/23/1110-107 Time. 02/23/1112-308 Computation of time. 02/23/111-103 Court Interpreters. 02/23/112-113 Court Interpreters. 02/23/113-113 Court Interpreters. 02/23/115-122 Court Interpreters. 02/23/116-115 Court Interpreters. 02/23/117-114 Court Interpreters. 02/23/118-113 Court Interpreters. 02/23/1110-167 Court Interpreters. 02/23/1112-315 Court Interpreters. 02/23/11Form 4-114 Suggested questions for assessing

qualifications of proposed court interpreter. 02/23/11Form 9-109 Suggested questions for assessing

qualifications of proposed court interpreter. 02/23/11

reCently aPPrOved rule Changes sinCe release Of 2011 nmra:

Effective Date

rules of civil procedure for the district courts

1-077 Appeals pursuant to Unemployment Compensation Law. 04/18/11

1-079 Public inspection and sealing of court records. 02/07/11

rules of civil procedure for the Magistrate courts


rules of criMinal procedure for the Metropolitan courts


civil forMs

4-831 Petition for writ of certiorari in appeal pursuant to Unemployment Compensation Law. 04/18/11

4-832 Writ of certiorari in appeal pursuant to Unemployment Compensation Law. 04/18/11

4-222 Application for free process and affidavit of indigency. 02/09/11

4-223 Order for free process. 02/09/114-224 Attorney’s certificate supporting indigency

and free process. 02/09/11

rules of criMinal procedure for the district courts

5-123 Public inspection and sealing of court records. 02/07/115-805 Probation; violation. 01/31/11

rules of criMinal procedure for the Magistrate courts


rules of criMinal procedure

for the Metropolitan courts


rules of procedure for the Municipal courts


children’s court rules and forMs

10-166 Public inspection and sealing of court records. 02/07/1110-409 Affidavit for Arrest Warrant. 02/14/1110-410 Arrest Warrant. 02/14/1110-412A Bench warrant. 02/14/1110-137 Continuing duty to disclose; failure to comply. 01/31/1110-312 Filing of petition; amendment of petition;

appointment of guardian ad litem or attorney. 01/31/11

rules of evidence

11-804 Hearsay exceptions; declarant unavailability. 01/31/11

rules of appellate procedure

12-314 Public inspection and sealing of court records. 02/07/1112-210 Calendar assignments. 02/09/1112-309 Motions. 02/09/11

uJi civil

13-110 Conduct of jurors. 03/21/1113-305 Causation (Proximate cause). 03/21/1113-306 Independent intervening cause. 03/21/1113-1424 Causation; products liability. 03/21/1113-1424A Independent intervening cause;

products liability. 03/21/11

uJi criMinal

14-101 Explanation of trial procedures. 03/25/1114-114 Recess instructions. 03/25/1114-2215 Resisting; evading or obstructing an officer,

essential elements. 03/21/1114-4511 “Operating” or driving a motor vehicle;

defined. 03/21/1114-4512 Actual physical control; defined. 03/21/11

supreMe court general rules

23-114 Free process in civil cases. 02/09/11

local rules for the eleventh Judicial district

LR11-120 Service by electronic transmission; water rights adjudication proceedings. 02/21/11

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


rules/ordersFrom the New Mexico Supreme Court

http://www.nmcompcomm.us/

no. 11-8300-012

in the Matter of the aMenDMents of rule 1-077 nMra anD aDoption of new forMs 4-831 anD 4-832 nMra of the rules of Civil proCeDure for DistriCt Courts

orDer

WHEREAS, this matter came on for consideration by the Court upon recommendation from the Rules of Civil Procedure Committee to adopt amendments to Rule 1-077 NMRA and to approve new Forms 4-831 and 4-832 NMRA of the Rules of Civil Procedure, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Charles W. Daniels, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Edward L. Chávez concurring; NOW, THEREFORE, IT IS ORDERED that the amendments to Rule 1-077 NMRA of the Rules of Civil Procedure for District Courts hereby are APPROVED; IT IS FURTHER ORDERED that new Forms 4-831 and 4-832 NMRA of the Rules of Civil Procedure hereby are ADOPTED; IT IS FURTHER ORDERED that the amendments to Rule 1-077 NMRA and new Forms 4-831 and 4-832 NMRA of the Rules of Civil Procedure shall be effective April 18, 2011; and IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and directed to give notice of the amendments of Rule 1-077 and new Forms 4-831 and 4-832 NMRA of the Rules of Civil Procedure by publishing the same in the Bar Bulletin and NMRA and posting the same on the New Mexico Compilation Commission web site <www.nmcompcomm.us/nmrules>. IT IS SO ORDERED. WITNESS, Honorable Charles W. Daniels,

Chief Justice of the Supreme Court of the State of New Mexico, and the seal of said Court this 15th day of February, 2011.

________________________________________ Kathleen Jo Gibson, Chief Clerk

of the Supreme Court of the State of New Mexico___________________________1-077. Appeals pursuant to Unemployment Compensation Law. A. Scope of rule. This rule governs appeals from final deci-sions of the board of review of the Workforce Transition Services Division or the secretary of the Department of Workforce Solu-tions pursuant to Section 51-1-8 of the Unemployment Compen-sation Law [Section 51-1-1 NMSA 1978]. B. Filing appeal. An appeal pursuant to Section 51-1-8 NMSA 1978 may be taken by an aggrieved person filing a notice of ap-peal in the form of a petition for writ of certiorari in the county in which the person seeking the review resides. The district court of any other county has jurisdiction to hear an appeal pursuant to this rule upon a determination by the district court where the petition is filed that, as a matter of equity and due process, venue should be in that county. The writ of certiorari shall contain a

short statement of the proceedings and the grounds relied on for issuance of a permanent writ. C. Time for appeal. An appeal in the form of a petition for writ of certiorari pursuant to this rule shall be filed in the district court within thirty (30) days from the date of the final decision of the secretary or board of review. The three (3) day mailing period set forth in Rule 1-006 NMRA does not apply to the time limit for filing a notice of appeal. D. Docketing the appeal. Upon the filing of the petition for writ of certiorari and payment of the docket fee, if required, the clerk of the district court shall docket the appeal in the district court. No individual claiming benefits shall be charged fees of any kind by any court or officer thereof. E. Service. The petition for writ of certiorari shall be served by the petitioner on the Office of General Counsel of the Depart-ment of Workforce Solutions, the respondent former employer or employee and all other parties to the proceedings before the secretary or board of review. F. Petitioner’s statement of appellate issues. The petitioner shall set forth in the petition for writ of certiorari a statement of the appellate issues under appropriate headings and in the order here indicated: (1) a statement of the issues; (2) a concise summary of the proceedings which shall indicate briefly the nature of the case, the course of proceedings, and the disposition of the secretary or board of review. The sum-mary shall include a short recitation of all facts relevant to the issues presented for review. The summary shall also state how the issues were preserved in the proceedings before the agency; and (3) a statement of the precise relief sought. G. Response and record on appeal. Upon the filing of a petition for writ of certiorari pursuant to this rule, the court shall enter a writ of certiorari provided by the petitioner directing the Department of Workforce Solutions to file the record on appeal within twenty (20) days from the date of service of the writ. The record on appeal shall include a copy of all reports, papers, plead-ings and documents filed in the proceedings before the board of review or the secretary and a certified transcript of proceedings before the secretary or board of review. If the transcript of the proceedings is an audio recording, the Department of Workforce Solutions shall prepare and file with the district court a duplicate of the recording. H. Supersedeas. No bond shall be required in an appeal to the district court pursuant to this rule. I. Hearing. An appeal pursuant to this rule shall be heard in a summary manner and shall be given precedence over all other civil cases. J. Scope of review. The district court shall determine the ap-peal upon the evidence introduced at the hearing before the board of review or secretary of the Department of Workforce Solutions. The district court may enter an order reversing the decision of the board of review or the secretary if it finds that: (1) the board of review or secretary acted fraudulently, arbitrarily or capriciously; (2) based upon the whole record on appeal, the decision of the board of review or secretary is not supported by substantial evidence; or


http://www.nmcompcomm.us/nmrules

http://www.nmcompcomm.us/nmrules



http://www.nmcompcomm.us/ (3) the action of the board of review or secretary was outside the scope of authority of the agency. K. Rehearing. A motion for reconsideration may be filed within ten (10) days after filing of the district court’s final order. The three (3) day mailing period set forth in Rule 1-006 does not apply to the time limits set by this rule. The motion shall state briefly and with particularity, but without argument, the points of law or fact that in the opinion of the movant the court has over-looked or misapprehended. No response to a motion for rehearing shall be filed unless requested by the court. L. Appeal. An aggrieved party may appeal an order or judg-ment of the district court in accordance with the Rules of Appellate Procedure. [Adopted, effective January 1, 1996; as amended by Supreme Court Order No. 11-8300-012, effective April 18, 2011.] __________________________Form 4-831. Petition for writ of certiorari in appeal pursuant to Unemployment Compensation Law.[For use with Rule 1-077 NMRA]STATE OF NEW MEXICOCOUNTY OF ______________________________________ JUDICIAL DISTRICT__________________________________,Petitioner,v. No. __________ Admin. Case No. _______________New Mexico Department of Workforce Solutions,and__________________________________ (Former Employer or Employee),Respondents.

PETITION FOR WRIT OF CERTIORARI Petitioner appeals from the decision of the Workforce Transi-tion Services Division of the State of New Mexico Department of Workforce Solutions in this case and states the following in support of this petition for a writ of certiorari:1. Petitioner resides in ____________County, New Mexico, and venue is therefore properly in this court.2. This petition is timely filed within thirty (30) days from the date of the final decision of the secretary of the Department of Workforce Solutions or the board of review. The date of the final decision is ___________________, and copy of the final decision is attached to this petition.Statement of issues.3. Petitioner believes the final decision was incorrect for the following reasons. (Please list below in numerical order the reasons why you believe the final decision is incorrect. If you are raising more than three issues, list them on a separate sheet and attach it to this petition. See Rule 1-077(J) NMRA for a list of the reasons why the district court may reverse a decision of the board of review or secretary. After each statement of issue, state how the issue was raised in the administrative agency below.) Issue No. 1:__________________________________________________________________________________________ Issue No. 2: ____________________________________________________________________________________________________________________________________________ Issue No. 3:____________________________________________________________________________________________________________________________________________

Summary of proceedings.4. The following is a concise summary of what happened in this case, and it includes a short statement of all the facts that are relevant to the issues listed in this petition. (Attach additional pages if necessary):____________________________________________________________________________________________________________________________________________________________Statement of relief sought.5. Petitioner asks the court to issue a writ of certiorari to review the issues listed above. A copy of the proposed writ of certiorari is attached to this petition. (See Form 4-832 NMRA) Petitioner also asks the court to provide the following specific relief after reviewing this petition and issuing the writ:___________________________________________________________________________________________________________________________________________________________ _____________________________ (Signature of Petitioner) ______________________________ (Petitioner’s address) _____________________________ (Petitioner’s phone number) CERTIFICATE OF SERVICE

I certify that I caused a copy of this petition for writ of certiorari to be served on the following persons or entities by (delivery) (certified mail, postage prepaid) on this ____ day of ___________________, 20____: (1) Office of General Counsel of the State of New Mexico

Department of Workforce Solutions __________________________________________ (Address) (2) __________________________________________ (Name of Respondent Former Employer or Employee) __________________________________________ (Address) (3) __________________________________________ (Name of any other party to the proceedings) __________________________________________ (Address) _____________________________ (Petitioner) (Attorney for petitioner)

AFFIDAVIT OF SERVICE OF PARTY1

I declare under penalty of perjury that I caused a copy of this petition for writ of certiorari to be served on the following persons or entities by (delivery) (certified mail, postage prepaid) on this ____ day of ___________________, 20____: (1) Office of General Counsel of the State of New Mexico Department of Workforce Solutions __________________________________________ (Address) (2) __________________________________________ (Name of Respondent Former Employer or Employee) __________________________________________ (Address) (3) __________________________________________ (Name of any other party to the proceedings) __________________________________________ (Address) _____________________________ (Petitioner)




http://www.nmcompcomm.us/USE NOTE

1. If the Petitioner is not represented by counsel, the affidavit of service must be completed. 2. If the petition for writ of certiorari is not filed within thirty (30) days of the final decision issued by the secretary or board of review, the district court will not have jurisdiction to hear the appeal. 3. Both the Department of Workforce Solutions and the for-mer employer or employee must be named and joined as parties (respondents) to the appeal on the petition for writ of certiorari and the writ of certiorari. [Adopted by Supreme Court Order No. 11-8300-012, effective April 18, 2011.]____________________________Form 4-832. Writ of certiorari in appeal pursuant to Unem-ployment Compensation Law.[For use with Rule 1-077 NMRA]STATE OF NEW MEXICOCOUNTY OF __________________________________________ JUDICIAL DISTRICT__________________________________,Petitioner,v. No. __________ Admin. Case No. ______New Mexico Department of Workforce Solutions,and_______________________ (Former Employer or Employee),Respondents.

WRIT OF CERTIORARITo: Office of General Counsel of the State of New Mexico Department of Workforce Solutions The court has reviewed the petition for writ of certiorari filed in the above-styled case and finds the following: 1. The court has jurisdiction over the Workforce Transition Services Division of the State of New Mexico Department of Workforce Solutions and the other named Respondent and venue is proper in this county; 2. The petitioner has a statutory right to judicial review of the administrative decision in the above-styled case under the Unemployment Compensation Law; and 3. The petition seeks relief from the administrative decision on one or more of the grounds set forth in Subparagraphs (1), (2), or (3) of Paragraph J of Rule 1-077 NMRA. IT IS THEREFORE ORDERED that the petition for writ of certiorari in the above case be and hereby is granted. IT IS FURTHER ORDERED that the Workforce Transition Services Division of the State of New Mexico Department of Workforce Solutions prepare and file with this court within twenty (20) days from the date of service of this writ the record on appeal in compliance with Paragraph G of Rule 1-077 NMRA. IT IS FURTHER ORDERED that the review in this case shall proceed in compliance with Rule 1-077 NMRA. _____________________________ District JudgeDated: ____________________

CERTIFICATE OF SERVICE I certify that I caused a copy of this writ of certiorari to be served on the following persons or entities by (delivery) (certified mail, postage prepaid) on this ____ day of ___________________, 20____:(1) Office of General Counsel of the State of New Mexico Department of Workforce Solutions __________________________________________ (Address)(2) __________________________________________ (Name of Respondent Former Employer or Employee) __________________________________________ (Address)(3) __________________________________________ (Name of any other party to the proceedings) __________________________________________ (Address) _____________________________ (Petitioner) (Attorney for petitioner)

AFFIDAVIT OF SERVICE OF PARTY1

I declare under penalty of perjury that I caused a copy of this writ of certiorari to be served on the following persons or entities by (delivery) (certified mail, postage prepaid) on this ____ day of ___________________, 20____:(1) Office of General Counsel of the State of New Mexico Department of Workforce Solutions __________________________________________ (Address)(2) __________________________________________ (Name of Respondent Former Employer or Employee) __________________________________________ (Address)(3) __________________________________________ (Name of any other party to the proceedings) __________________________________________ (Address) _____________________________ (Petitioner)

USE NOTE 1. If the Petitioner is not represented by counsel, the affidavit of service must be completed. 2. If the petition for writ of certiorari is not filed within thirty (30) days of the final decision issued by the secretary or board of review, the district court will not have jurisdiction to hear the appeal. 3. Both the Department of Workforce Solutions and the for-mer employer or employee must be named and joined as parties (respondents) to the appeal on the petition for writ of certiorari and the writ of certiorari. [Adopted by Supreme Court Order No. 11-8300-012, effective April 18, 2011.]



advance opinionsfroM the neW Mexico supreMe court and court of appeals

http://www.nmcompcomm.us/


Opinion Number: 2011-NMSC-004

Topic Index:Appeal and Error: Appellate Jurisdiction

Civil Procedure: Questions of Law and Questions of Fact; Retroactivity; and Writ of MandamusConstitutional Law: Amendment to Constitution; Constitutional Law, General; and New Mexico Constitution, General

Government: Land Use; Public Funds; Public Lands; and State AgenciesJurisdiction: Appellate Jurisdiction; and Supreme Court

Property: Land Grants; and Public LandsRemedies: Extraordinary Writs; Exclusive Remedy; and Writ of Mandamus

Statutes: Interpretation; Legislative Intent; and Rules of Construction

STATE OF NEW MEXICO ex rel. GARY K. KING,Attorney General of the State of New Mexico,

Petitioner,versus

PATRICK H. LYONS, Commissioner of Public Lands,Respondent.

No. 32,197 (filed: January 24, 2011)

ORIGINAL PROCEEDING

GARY K. KINGAttorney GeneralSETH T. COHEN

Assistant Attorney GeneralSanta Fe, New Mexico

for Petitioner

ROBERT ALLEN STRANAHAN, IVSanta Fe, New Mexico

CHARLES R. PEIFERLAUREN KEEFE

PEIFER, HANSON & MULLINS, P.A.Albuquerque, New Mexico

for Respondent

DENNIS WILLIAM MONTOYAMONTOYA LAW, INC.

Albuquerque, New Mexicofor Amicus CuriaeLeague of United

Latin American Citizens

PATRICK J. ROGERSNATHAN T. NIEMAN

MODRALL, SPERLING, ROEHL, HARRIS & SISK, P.A.

Albuquerque, New Mexicofor Amici Curiae

Easter Seals El Mirador and Union Pacific Railroad Company

ALVIN REY GARCIAAlbuquerque, New Mexico

MICHAEL A. SAULBoulder, Colorado

for Amici CuriaeNew Mexico Wildlife Federation and

National Wildlife Federation

EDWARD RICCOJOCELYN C. DRENNAN

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

Albuquerque, New MexicoK. LEE PEIFER

Albuquerque, New Mexicofor Amicus Curiae

University of New Mexico

JOHN F. KENNEDYCUDDY & MCCARTHY, L.L.P.

Santa Fe, New Mexicofor Amicus Curiae

New Mexico School for the Blind and Visually Impaired



Mexico’s constitutional convention, mak-ing it “fundamental law to the same extent as if it had been directly incorporated into the Constitution.” Lake Arthur Drainage Dist. v. Field, 27 N.M. 183, 190, 199 P. 112, 115 (1921).{4} The Enabling Act required that the people of New Mexico incorporate its mandates into the state constitution, and it specified that those mandates could not be modified without the consent of Congress and a ratifying vote of our citizens. See Enabling Act § 2; see also N.M. Const. art. XXI, §§ 1-11 (incorporating all Enabling Act measures into the New Mexico Con-stitution and making the Act irrevocable without the consent of the United States and the people of this State); N.M. Const. art. XIX, § 4 (providing for citizen voting on constitutional amendments); Bryant v. Bd. of Loan Comm’rs, 28 N.M. 319, 329, 211 P. 597, 601 (1922) (“Congress con-templated that any change . . . to the use of the proceeds of the lands granted to the state should be effectuated by amendment to the Constitution, and the Constitution . . . provides that the ordinance accepting these grants of land is to be irrevocable without the consent of the United States and the people of the state, and . . . any change in the use and application of the proceeds of these land grants may . . . be done by way of a constitutional amendment.”).{5} Section 10 of the Enabling Act gov-erns state trust land management. The Act granted over thirteen million acres of fed-eral land to the State of New Mexico, to be held in trust for the benefit of various public schools and other institutions. See Enabling Act §§ 6-7, 10; 1990 WL 110523 (Cong. Rec.), 136 Cong. Rec. 21,234 (1990) (state-ment of Sen. Pete Domenici); United States v. Ervien, 246 F. 277, 277 (8th Cir. 1917). Our state constitution created the office of Commissioner of Public Lands, vesting it with the “direction, control, care and dispo-sition of all public lands, under the provi-sions of the acts of congress relating thereto and such regulations as may be provided by law.” N.M. Const. art. XIII, § 2. This Court has long acknowledged that the Land Commissioner’s broad authority to manage state trust lands is subject to the terms of the Enabling Act. See, e.g., Burguete v. Del Curto, 49 N.M. 292, 295-96, 163 P.2d 257, 259 (1945) (per curiam) (“It’s well settled in New Mexico that under the Enabling Act, our Constitution and the statutes based thereupon, the Commissioner of Public Lands has complete dominion, which is to say complete control, over state lands.

This ‘dominion’ is, of course, subject to the restrictions imposed by the Enabling Act, the Constitution, and the statutes, and the manner of its exercise is subject to review by the courts.” (citations omitted)).{6} Section 10 of the Enabling Act defines the Land Commissioner’s power to sell or lease state trust land, but also limits those powers. Sale proceeds are deposited in the Land Grant Permanent Fund and invested by the State Investment Officer for the ben-efit of enumerated public institutions. See N.M. Const. art. XII, §§ 2, 7; NMSA 1978, §§ 6-8-1 to -22 (1957) (amended 2010); NMSA 1978, § 19-1-17 (1957) (amended 2010); State v. Llewellyn, 23 N.M. 43, 70, 167 P. 414, 423 (1917). Proceeds from leases are distributed directly to the benefi-ciary institutions. NMSA 1978, §§ 19-1-11, -13 (1989).{7} Section 10’s conditions include the proviso that state trust lands “shall be by the said state held in trust, to be disposed of in whole or in part only in manner as herein provided.” (Emphasis added.) When adopt-ed, the only means of disposal provided in the Enabling Act were sale and lease, under certain conditions. The Act provided that land “shall not be sold or leased, in whole or in part, except to the highest and best bidder at a public auction” with detailed advance notice to the public. Section 10 further provides that “[a]ll lands . . . before being offered shall be appraised at their true value, and no sale or other disposal thereof shall be made for a consideration less than the value so ascertained, nor in any case less than the minimum price hereinafter fixed . . . .” These conditions, crucial to our later discussion in this Opinion, can be summarized as follows: first, disposals of land are limited to the disposals described in the Enabling Act; second, land can only be sold or leased at a public auction to the highest and best bidder; and third, all sales and leases must yield at least the appraised value of the land. As will be discussed more fully in this Opinion, the Enabling Act imposed its conditions and restrictions upon the Land Commissioner’s authority to dispose of public lands so as to prevent the kind of corruption and exploitation of the public trust for private advantage that had been widely exposed over the latter part of the 19th Century.{8} Over time, several attempts have been made to loosen the Enabling Act’s constraints on land disposals by amending the Act to provide the Land Commissioner with authority to exchange state land, for land held by others without the constraints

opinion

richard c. Bosson, Justice

{1} The Attorney General of New Mexico petitions this Court, for a Writ of Mandamus, requiring the New Mexico Commissioner of Public Lands (Land Commissioner) to comply with the New Mexico Enabling Act and the New Mexico Constitution, and thus to cancel or discontinue four separate land exchanges of considerable size and com-plexity. These exchanges would transfer or have transferred state trust land in the White Peak area of Mora and Colfax counties and elsewhere to private ownership in return for certain private land situated in the same area and elsewhere. According to the Land Commissioner, these exchanges will reduce “checkerboard” ownership of state trust land and consolidate state land into larger, contiguous parcels, thereby improving land management and reducing boundary and access issues that have arisen in that area. See, e.g., State ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009-NMSC-010, ¶¶ 17-18, 63, 145 N.M. 769, 205 P.3d 816.{2} This Opinion does not pass judgment on either the wisdom or the efficacy of the Land Commissioner’s proposed exchanges. Instead, we are asked only to determine whether those exchanges are lawful. Specif-ically, we inquire whether these exchanges are legally authorized under New Mexico’s Enabling Act, a 1910 act of Congress that, among other things, identified public lands for transfer to the state and imposed certain conditions. In our state constitution, the people of New Mexico expressly consented to the provisions of the Enabling Act. See N.M. Const. art. XXI, § 9. We conclude that the exchanges are not authorized be-cause they violate the requirements of the Enabling Act, and therefore we issue our Writ of Mandamus in the manner requested by the Attorney General, directing the Land Commissioner to cancel these exchanges. We also give certain additional directives as indicated in this Opinion.BACKGROUNDI. New Mexico Enabling Act and

History of State Trust Land Exchanges

{3} The 1910 Enabling Act provided for New Mexico’s admission as a state into the federal union and set forth certain basic conditions for statehood. Act of June 20, 1910, ch. 310, §§ 1-18, 36 Stat. 557 (Enabling Act); N.M. Const. art. XXI, § 9 (adopting the provisions of the Enabling Act). The Act was adopted during New


of the conditions described above. Only once have both Congress and the people of New Mexico voted to provide the Land Commissioner with exchange authority. In 1926, Congress approved an amendment to allow the Land Commissioner and the U.S. Secretary of the Interior to exchange state trust land for national forest land. Act of June 15, 1926, ch. 590, § 1, 44 Stat. 746. New Mexico voters twice rejected the amendment before they approved it in 1932. See N.M. Const. art. XXI, § 11. Voters rejected another proposed amend-ment in 1935, which would have given the Land Commissioner broader authority to exchange land with the federal govern-ment.{9} Significant to our inquiry today, in 1990 New Mexico voters overwhelmingly rejected a proposed amendment of the En-abling Act which would have provided the Land Commissioner with the very authority he seeks to exercise today. The proposed—and defeated—constitutional amendment would have authorized the Land Commissioner to exchange state trust land for land held by private persons or entities, among others. It was defeated by a vote of 57.7 percent against and only 42.3 percent in favor. As will be discussed later in this Opinion, we regard this popular vote as significant. The amendment would not have been necessary had the Enabling Act authorized exchanges all along. To the contrary, its rejection signifies that a significant majority of our electorate under-stood at least two things: 1) the Enabling Act did not authorize Land Commissioner exchanges, and 2) the Land Commissioner should not be empowered to conduct such exchanges.{10} Despite a history of uncertainty sur-rounding the authority to exchange state trust land, the Land Commissioner has for decades engaged in land exchanges with a variety of state and local public entities involving hundreds of thousands of acres of state trust land. Land Commissioner docu-ments submitted to this Court indicate only two exchanges have been conducted with private entities: a 1984 exchange of 314 acres of state trust land for 200 acres from United Nuclear Corporation and a 2009 ex-

1The United Nuclear exchange in 1984 is the only private exchange documented in the “SLO Exchanges by Administration/Action,” submitted by the Land Commissioner. That list, however, appears to only document land exchanges consummated before 1987. At-tached press releases describe six land exchanges occurring between 2005 and 2009. One of those press releases suggests another private “transfer,” an exchange with Easter Seals Santa Maria El Mirador on August 25, 2009.2NMSA 1978, Section 19-1-1 (1912), established the State Land Office, with the Commissioner of Public Lands as its executive of-ficer.

change of 28 acres of state trust land for 53 acres of land from Easter Seals Santa Maria El Mirador.1 The Attorney General has not challenged any exchanges prior to the four challenged exchanges in the present litiga-tion, and as will be explained, this Opinion does not affect any prior exchanges.II. The Four Challenged Exchanges{11} In this case, the Attorney General seeks to cancel or prohibit four separate land exchanges, each with a private party: the “Stanley Ranch exchange,” the “UU Bar exchange,” the “CS Ranch Bar exchange,” and the “Galloway exchange.” Each ex-change involves state trust lands situated in the White Peak area of Mora or Colfax counties. Combined, the exchanges would transfer 14,600 acres of state trust land, at an appraised value of $22,500,000, for approximately 9,560 acres of private land at an appraised value of $23,200,000.{12} Only the Stanley Ranch exchange has been fully consummated with title passing from the state to the Stanley Ranch. The state has deeded fourteen parcels of land ranging in size from 40 to 1,727 acres, with a total of 7,205.75 acres, valued at $6,356,000. In exchange, the state has received from the Stanley Ranch multiple parcels of land, totaling 3,336.221 acres ap-praised at $6,413,000. The Stanley Ranch began the exchange process by submitting an “Initial Application” to the State Land Office2 on October 11, 2007. The applica-tion specified parcels of state trust land that the Stanley Ranch sought to acquire through an exchange.{13} The State Land Office agreed to pro-ceed with the transaction on June 5, 2008, eight months after the initial application, on the condition that certain lands be added to and removed from the proposed exchange. Accordingly, Stanley Ranch completed an amended application on August 5, 2008, and submitted it to the State Land Office. On September 8, 2009, almost two years af-ter the initial application, the State Land Of-fice issued a “Notice of Public Auction for Exchange of Land by Sealed Bid” detailing the land sought by the Stanley Ranch. The notice was published for ten weeks, from September 18 through November 19, 2009. Stanley Ranch submitted the only bid on

November 19, 2009, more than two years after its initial application, which was ac-cepted on November 30, 2009. On January 7, 2010, the State Land Office executed an “Exchange Patent,” conveying the specified state trust lands to the Stanley Ranch. The State received the specified lands from the Stanley Ranch, and the transaction was closed.{14} The UU Bar Ranch exchange, not yet completed, involves three parcels of state trust land located in Mora and Colfax counties, ranging in size from 120 to 1,721 acres, totaling 3,431.34 acres and valued at $2,381,000. The Land Commissioner has agreed to transfer this land in exchange for 3,610.19 acres of the UU Bar Ranch property, also in Mora and Colfax counties, valued at $2,383,000. The UU Bar Ranch initiated the exchange on March 5, 2008, submitting an “Initial Application” for land exchange to the State Land Office. Over six months later, on October 1, 2008, the State Land Office informed the UU Bar Ranch that it “would proceed with the land exchange process” and requested further information from the UU Bar Ranch.{15} On September 15, 2009, the Land Commissioner issued a “Notice of Public Auction for Exchange of Land by Sealed Bid,” offering for auction the 3,431.34 acres of state trust land already agreed upon for exchange with the UU Bar Ranch. Notice was published for ten weeks, start-ing October 1, 2009. The UU Bar Ranch submitted the only bid on December 8, 2009, over a year and a half after its initial application, and was notified of its ac-ceptance on December 17, 2009. For the moment, the State Land Office retains title to these state trust lands. {16} The CS Ranch and Galloway ex-changes have been in negotiation with the State Land Office, but have not yet proceeded to public notice. CS Ranch initi-ated its proposed exchange by submitting an “Initial Application” on April 9, 2008. The State Land Office responded on July 8, 2008, calling for further investigation into the exchange proposal and reporting that it had advised staff to “proceed with the exchange process.” Until the Petition was filed in this case, appraisals and appraisal


reviews of the targeted state trust lands were under way, and the State Land Office and CS Ranch were negotiating the details of the exchange.{17} Under the most recent terms of the exchange, the Land Commissioner con-templates conveying approximately 166 acres of state trust land in Colfax County valued at $734,000; 3,630 acres in Santa Fe County valued at $9,935,000; and 40 acres in Bernalillo County valued at $2,250,000. In return, CS Ranch is offering 2,600 acres of its land in Colfax County valued at $13,480,000. The proposed exchange has been described by the State Land Office as part of the “White’s Peak Consolida-tion Strategy” and “the second of four (4) proposed exchanges,” focusing on con-solidation and access. When the Attorney General’s petition was filed on February 1, 2010, almost twenty-two months had passed since the initial CS Ranch applica-tion was filed with the State Land Office.{18} Finally, the Galloway exchange is the fourth, and smallest, of the four exchanges. It would transfer 160 acres of state trust lands in Colfax County valued at $840,000, in exchange for approximately 110 acres of Galloway land in Colfax County valued at $951,500. On July 10, 2008, William Galloway submitted an “Initial Applica-tion” for exchange of public lands. Two months prior to his “Initial Application,” Galloway proposed an exchange with the Land Commissioner, declaring his interest in “establish[ing] a dialog/consideration process for swapping certain deeded land,” and promoting the exchange as a way to improve land management and public ac-cess.{19} On August 28, 2008, the State Land Office sent Galloway a letter indicating that “further investigation of the suggested exchange [was] warranted” and that the Land Commissioner had “advised staff to proceed with the exchange process.” On June 18, 2009, Galloway submitted an “UPDATED Initial Application,” indicat-ing that the state trust lands he desired were the “CS Ranch 160 acre tract . . . (part of the global swap occurring).” Galloway further explained that his interest in the land exchange was “[p]art of the global swap happening with many local owners and state of NM.” The Galloway exchange had not yet been advertised when, more than eighteen months after Galloway’s “Initial Application,” the Attorney General filed a petition requesting that this Court stay the exchange.{20} On February 1, 2010, the Attorney

General filed a Petition for Writ of Manda-mus challenging the Land Commissioner’s authority to conduct the four exchanges described above. The next day, we granted the Attorney General’s request to stay all transactions pending a resolution of the dispute.DISCUSSIONI. Mandamus Jurisdiction Is Proper{21} This Court will exercise its original jurisdiction in mandamus

when the petitioner presents a purely legal issue concerning the non-discretionary duty of a gov-ernment official that (1) implicates fundamental constitutional ques-tions of great public importance, (2) can be answered on the basis of virtually undisputed facts, and (3) calls for an expeditious resolution that cannot be obtained through other channels such as a direct appeal.

State ex rel. Sandel v. N.M. Pub. Util. Comm’n, 1999-NMSC-019, ¶ 11, 127 N.M. 272, 980 P.2d 55; see also N.M. Const. art. VI, § 3 (“The supreme court shall have original jurisdiction in quo warranto and mandamus against all state officers, boards and commissions . . . .”); NMSA 1978, § 44-2-5 (1884) (“The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law.”).{22} The Attorney General’s petition raises questions implicating the Land Commis-sioner’s constitutional ability to engage in land exchanges. As noted, the scope of the Land Commissioner’s authority has been the subject of the Enabling Act, congres-sional acts, the New Mexico Constitution, state legislative initiatives, state and federal judicial opinions, and proposed constitu-tional amendments. The meaning of the law that created the Land Commissioner’s post and established his charge, and the outcome in this case, could have far reaching impli-cations for millions of acres of state trust land and the trust beneficiary institutions. At issue, therefore, are fundamental con-stitutional questions of the greatest public importance.{23} This case also demands an expedi-tious resolution that can only come through our exercise of mandamus. The largest of the land exchanges has already been consummated, another is nearly complete, and the remaining two are in advanced stages of negotiation. Until this dispute is resolved, the legal status of thousands of acres of land, along with the property

rights of the private parties involved, hang in the balance. Although the district court has concurrent jurisdiction in mandamus cases, “when issues of sufficient public importance are presented which involve a legal and not a factual determination, we will not hesitate to accept the responsibility of rendering a just and speedy disposition.” State ex rel. Bird v. Apodaca, 91 N.M. 279, 282, 573 P.2d 213, 216 (1977); see also State ex rel. Taylor v. Johnson, 1998-NMSC-015, ¶ 17, 125 N.M. 343, 961 P.2d 768 (finding that a significant and purely legal question of government-actor powers under the New Mexico Constitution would find its way to this Court, even if the action began in the district court).{24} The Land Commissioner contends that alternative channels exist to chal-lenge the exchanges, making mandamus improper. Specifically, he suggests either an administrative contest, declaratory or injunctive relief, or a challenge to the Land Commissioner’s regulations under the Administrative Procedures Act. These alternatives are all inadequate. {25} An administrative contest is permit-ted by “any persons or corporation claim-ing any right, title, interest or priority of claim, in or to any state lands, covered by any lease, contract, grant or any other instrument executed by the commissioner.” NMSA 1978, § 19-7-64 (1912); see also 19.2.15.1 to .18 NMAC (6/30/2004). It also allows “[a] person aggrieved by a decision of the commissioner” to challenge any fi-nal agency action in district court. NMSA 1978, § 19-7-67 (1999). Yet the Attorney General is not personally aggrieved by the Land Commissioner’s decisions, nor does he have any “right, title, interest, or priority of claim, in or to any state lands, covered by any lease, contract, grant or any other instrument executed by the commissioner.” Section 19-7-64. Rather, the Attorney General is acting on behalf of state inter-ests—state trust land and the beneficiaries of the trust—as the office requires. See NMSA 1978, § 8-5-2(A) (1975) (“[T]he attorney general shall . . . prosecute and defend all causes in the supreme court and court of appeals in which the state is a party or interested.”); State ex rel. Burg v. City of Albuquerque, 31 N.M. 576, 584-85, 249 P. 242, 246 (1926).{26} Declaratory judgment, although theo-retically an option, does not constitute an adequate remedy at law that would preclude mandamus relief. See City of Albuquerque v. Ryon, 106 N.M. 600, 602-03, 747 P.2d


248-49 (1987) (providing that declaratory judgment actions are not intended to sub-stitute for remedies such as mandamus). Finally, the Administrative Procedures Act is not a vehicle for challenge in this case because that act only applies “to agencies made subject to its coverage by law, or by agency rule or regulation if permitted by law.” NMSA 1978, § 12-8-23 (1969). No laws or agency rules have been adopted making that act applicable to the State Land Office or the Land Commissioner.{27} The last issue regarding our exercise of mandamus jurisdiction turns on whether the Attorney General’s petition presents a purely legal question concerning a minis-terial duty of the Land Commissioner. See NMSA 1978, § 44-2-4 (1884) (“[Manda-mus] may be issued . . . to compel the per-formance of an act which the law specially enjoins as a duty resulting from an office, trust or station.”). “A ministerial act . . . is an act or thing which [a public officer] is required to perform by direction of law upon a given state of facts being shown to exist, regardless of his own opinion as to the propriety or impropriety of doing the act in the particular case.” State ex rel. Four Corners Exploration Co. v. Walker, 60 N.M. 459, 463, 292 P.2d 329, 332 (1956).{28} We recognize that the Land Com-missioner has broad discretion to manage state trust lands, and mandamus cannot be used to compel an executive officer acting within his discretion. See Bird, 91 N.M. at 282, 573 P.2d at 216 (citing Mitchell v. King, 537 F.2d 385 (10th Cir. 1976)); see also N.M. Const. art. 5, § 1 (creating the executive department and including the “commissioner of public lands”). We have held, however, that mandamus is appropri-ate to determine the outer bounds of that discretion. See, e.g., State ex rel. Shepard v. Mechem, 56 N.M. 762, 767, 250 P.2d 897, 900 (1952); Sender v. Montoya, 73 N.M. 287, 292, 387 P.2d 860, 863 (1963) (holding that mandamus is proper when an officer is performing ministerial duties, and explaining that “language . . ., to the effect that mandamus is inappropriate where interpretation and judgment are necessary, must be considered in context, not as an in-flexible rule”), overruled on other grounds by State ex rel. Reynolds v. Molybdenum Corp. of Am., 83 N.M. 690, 695, 496 P.2d 1086, 1091 (1972).{29} We do not question the Land Com-missioner’s motivation or judgment in engaging in land exchanges. Rather, we address two specific legal questions re-garding the Enabling Act’s limitations on

the Land Commissioner’s discretion. We address each of the legal questions in turn. First, “Does the Enabling Act authorize the Land Commissioner to exchange land with private parties, without application of Sec-tion 10’s sales provisions?” This is a purely legal question that we answer in the nega-tive in Section II. We further conclude that land exchanges for monetary (appraised) value are in-kind sales and are thus subject to the Enabling Act’s sales provisions.{30} Because we conclude that land ex-changes for monetary (appraised) value are subject to the Enabling Act’s sales provi-sions, we move on to a second purely legal question: “As a matter of law, do the chal-lenged exchanges comply with the required elements for a valid sale of land, including the requirement of a public auction to the highest and best bidder?” In Section III, we conclude that, as a matter of law, the exchanges do not comply with Enabling Act’s Section 10 requirement that “lands shall not be sold or leased, in whole or in part, except to the highest and best bidder at a public auction.” The Land Commissioner is correct that he cannot be compelled to hold a public land offering. That decision is within the Land Commissioner’s discre-tion. If he does decide to sell (or exchange) land, however, the Land Commissioner has an enforceable, ministerial duty to comply with the sales provisions of Section 10 of the Enabling Act. He has no discretion to do otherwise.{31} It is a factual determination, which we need not reach, whether making land ex-changes is generally beneficial to the trust. It is also a factual determination whether the exchanges at issue would benefit the trust. The Land Commissioner makes a cogent argument supporting his conclusion that certain private land exchanges would improve the management and value of state trust lands. We accept the Land Commis-sioner’s argument.{32} This case hinges upon the mean-ing of the Enabling Act that created the trust and provided for its administration. Neighbor-to-neighbor exchanges may well be in the best interest of the trust, but if the Enabling Act does not provide the Land Commissioner with authority to conduct exchanges, then they cannot be done. If they are permitted, they must conform to conditions imposed by the Act. II. The Enabling Act Does Not Permit

Exchanges Unless They Are In-Kind Sales

{33} This section addresses the first legal question we posed above regarding the

Enabling Act’s limitations on the Land Commissioner’s discretion: “Does the Enabling Act authorize the Land Com-missioner to exchange land with private parties, without application of Section 10’s sales provisions?” We conclude that the Enabling Act does not authorize those ex-changes. We also recognize, however, that exchanges for appraised monetary value, such as the challenged exchanges, may be considered in-kind sales. Thus, assuming exchanges for monetary value are in-kind sales, they are subject to the Enabling Act’s sales provisions, including public auction to the highest and best bidder.A. The Enabling Act’s Plain

Language Limits Land Disposals{34} Although Section 10 of the Enabling Act never used the word “exchange” until the word was specifically added in an amendment to give the Land Commissioner exchange power with the Secretary of the Interior, the Land Commissioner interprets the word “dispos[e]” in Section 10 as a general, implicit grant of authority be-yond sales or leases to include exchanges. Under that interpretation, the authority to exchange would only be conditioned upon an appraisal of the exchange lands and obtaining at least the appraised value in exchange for the state lands; there would be no companion requirement of notice and public auction to the highest and best bidder. The Land Commissioner reasons that an exchange is a form of disposal, not expressly prohibited by the Enabling Act, and thus it falls within his general “disposal” authority.{35} We reject the Land Commissioner’s interpretation. We cannot accept the notion that use of the word “dispose[d]” in Section 10 grants additional, residual authority to convey trust land beyond a sale or lease. Significantly, Section 10 of the Enabling Act requires that disposals occur “only in the manner provided herein,” thus limit-ing, rather than broadly granting, the Land Commissioner’s power to dispose. The word “dispose” appears three times in Sec-tion 10 of the Enabling Act:

[A]ll lands hereby granted . . . shall be . . . held in trust, to be dis-posed of in whole or in part only in manner as herein provided and for the several objects specified in the respective granting and confirma-tory provisions . . . .

Disposition of any of said lands . . . for any object other than that for which such particular lands, or the lands from which


such money or thing of value shall have been derived, were granted or confirmed, or in any manner contrary to the provisions of this act, shall be deemed a breach of trust . . . .. . . .

All lands, leaseholds, timber and other products of land before being offered shall be appraised at their true value, and no sale or other disposal thereof shall be made for a consideration less than the value so ascertained . . . .

(Emphasis added.) The first two uses explicitly negate an expansive interpreta-tion. They direct the reader to the Act’s limitations (lands are “to be disposed of . . . only in manner as herein provided” and “[d]isposition . . . in any manner contrary . . . shall be deemed a breach of trust”). Any infraction of the Act’s limited bounds is prohibited as a “breach of trust.”{36} The third use of “disposal” speci-fies the “manner” in which disposals of land should occur. It directs that land trust holdings shall be appraised and no sale or other disposal shall be made for a consideration less than appraised value. The Land Commissioner is correct to interpret this passage as requiring an ap-praisal before any transaction involving state trust land, not only for sales but also for leases. Because leaseholds are also ex-pressly contemplated in Section 10, “sale or other disposal” is necessary language to include such conveyances. The phrase “or other disposal,” does not create, however, a new universe of possible disposals, such as swaps or exchanges, exempt from the conditions required for sales and leases. We have repeatedly recognized that “[w]here authority is given to do a particular thing and a mode of doing it is prescribed, it is limited to be done in that mode; all other modes are excluded. This is a part of the so-called doctrine of expressio unius est exclusio alterius.” Fernandez v. Espanola Pub. Sch. Dist., 2005-NMSC-026, ¶ 6, 138 N.M. 283, 119 P.3d 163 (internal quotation marks and citation omitted).{37} The Enabling Act’s plain language is more than sufficient to establish the absence of any implicit grant of land exchange power. Despite this, we put forth the con-gressional history showing the factors that formed the Act’s restrictions and the elec-tion history that demonstrates voter intent to refrain from amending the Act to allow for land transfers. These histories further illustrate the intended limitations on the

Land Commissioner’s disposal of land.B. Enabling Act Drafters Purposely

Constrained Land Commissioner Authority

{38} To infer broad authority from the word “dispos[e]” would be to construe the Enabling Act precisely in the manner that Congress and the leaders of the New Mexico Territory sought to avoid. The Enabling Act was written to “preclude any license of construction or liberties of infer-ence.” Ervien v. United States, 251 U.S. 41, 47 (1919). Contrary to the consistent “nar-row interpretation” by the U.S. Supreme Court, see, e.g., United States v. N.M., 535 F.2d 1324, 1327 (10th Cir. 1796), the Land Commissioner would have us construe “dispos[e]” to afford additional, broad, and almost unrestrained authority to convey state trust land, subject only to the single requirement that any such disposal obtain at least true appraised value. The Land Com-missioner’s view, however, would ignore the history that influenced the Enabling Act’s restrictions on land disposal. See Robert W. Larson, New Mexico’s Quest for Statehood 1846-1912 268 (1968) (“Lands granted [by the Enabling Act] were placed in a trust to be disposed of by a specified procedure.”).{39} As the Arizona Supreme Court has noted, “the Enabling Act for New Mexico and Arizona marked a complete and ab-solute departure from the enabling acts under which other states were admitted to the Union.” Murphy v. State, 181 P.2d 336, 344 (Ariz. 1947). More specifically, the Enabling Act was a response to, and an attempt to preclude, the types of abuses that had occurred in other states and in ter-ritorial New Mexico. Id. Unfettered local control of trust lands had

left a scandal in virtually every state, and these granted lands and the monies derived from a dispo-sition thereof were so poorly ad-ministered, so unwisely invested and dissipated, that Congress concluded to make sure, in light of experiences of the past, that such would not occur in the new states of New Mexico and Arizona.

Id. New Mexico’s own scandal involved land covered with valuable timber that had been granted to the Territory of New Mex-ico through a federal act in 1898; territorial authorities had violated the law in disposing of the timber. Id. at 345. The Enabling Act was drafted in the wake of twelve pending U.S. Department of Justice lawsuits in the New Mexico Territory against corporations

or against the Territory in conjunction with a corporation. S. Rep. No. 61-454, at 37 (2d Sess. 1910). In addition, it has been widely represented that during the years following the Civil War and leading up to New Mexico’s statehood, members of the so-called “Santa Fe Ring,” a group of land speculators, including prominent politi-cians, lawyers, and other leading citizens of the territory, assumed huge land holdings through corrupt practices, taking advantage of legal discrepancies and ignorance of the land law on part of land grant holders. See generally David Correia, Appendix: Land Grant Speculation in New Mexico During the Territorial Period, 48 Nat. Res. J. 927 (2008).{40} The history surrounding the Enabling Act demonstrates an intent to prevent future corruption by strictly limiting the ability of the Land Commissioner to dispose of trust lands. See, e.g., Larson, supra, at 267 (explaining that the reasons for the “[h]arsh restrictions on the handling of public lands,” included in the Senate version of the statehood bill and eventually adopted in the Enabling Act, “may be traced back to the land fraud scandals”). The Enabling Act’s land disposal conditions were designed to protect the Land Commissioner from expo-sure to corrupt and coercive forces. Indeed, Senator Beveridge of Indiana, Chairman of the Committee on the Territories, con-sidered the restrictions on disposal of the land to be “quite the most important item” in the legislation. Lassen v. Arizona ex rel. Arizona Highway Dep’t, 385 U.S. 458, 468 (1967). The Senate Bill stipulated that any conveyance of public trust land must be at a public auction, after adequate public notice, to the highest bidder, at no less than appraised value. In addition, “transac-tions upon credit” were prohibited unless “accompanied by security.” S. Rep. No. 61-454, at 18.{41} Senator Beveridge had good reason for his opinion that the restrictions on land disposals were the most important part of the Enabling Act legislation. Concerns about disposal of New Mexico’s land were held at the highest level of government, by President Roosevelt. See 2 Ralph Emerson Twitchell, The Leading Facts of New Mexi-can History 549 (Sunstone Press 2007) (1912). In 1906, when Herbert J. Hagerman was appointed governor of the territory of New Mexico, “[i]t was generally believed that [Hagerman] had been chosen for the express purpose of assisting in uncovering frauds in the sale and disposal of lands . . . to corporations and special interests, to


some of which the territorial officials and their friends were parties . . . .” Id. at 549.{42} In authoring and signing the Enabling Act, members of Congress sought to limit the power of the Land Commissioner by requiring transparent and fair disposal of public land for the public’s benefit. In ad-dition to discussing the ongoing lawsuits in the Territory, Senator Beveridge’s Commit-tee on the Territories Report, accompanying the Senate bill, highlighted testimony by two leaders representing the Territory of New Mexico. See id. at 20. At that time, L. Bradford Prince was a former New Mexico Territorial Governor, id., and Charles A. Speiss was President of the New Mexico Constitutional Convention of 1910. New Mexico Blue Book 2007-2008 48 (Mary Herrera, Secretary of State ed. 2008). Each New Mexican leader responded to questions from the Committee Chairman:

The Chairman. . . . . I understand you to say in private conversa-tion that you highly approved, as you said every other man did who thought of the subject, of the safeguards thrown about the disposition of public lands granted in this bill.Mr. PrinCe. We approve of the strictest safeguards that can pos-sibly be found in order to insure the perpetuity of that fund and its inviolability.

S. Rep. No. 61-454, at 20. This Court also considers the restrictions on land disposals inviolate. The Report’s highlighted testi-mony continued:

The Chairman. At that point, let me ask you this question: In the bill introduced in the Senate, known as the Senate bill, very careful restrictions have been thrown around the disposition of this land. I understand you to say to me in private conversation that you were entirely satisfied that the restriction could not be made too strong.Mr. sPiess. Absolutely, Senator, and more than that. We would have adopted those same restrictions by our constitutional convention—

Id.The Chairman (interposing): So you have no objection to these restrictions?Mr. sPiess: No sir.

Hearing Before the Committee on Ter-ritories, United States Senate, 61st Cong. 19 (1910) (statements by Sen. Albert

Beveridge, Chairman, S. Comm. on the Territories). Testimony from Arizona representatives expressed similar support for the restrictions, asserting “the restric-tions on such public lands can not be made too broad.” S. Rep. No. 61-454, at 21. An Arizona representative even testified that he desired measures that would prevent the public trust lands from being disposed of “in large areas.” Id. at 20.{43} While this Court will usually defer to an executive official’s discretion, the Enabling Act’s conditions and limitations were purposefully designed to circumscribe discretion. See United States v. New Mexico, 536 F.2d 1324, 1327 (10th Cir. 1976) (“In construing the Enabling Act, the Supreme Court citing the restrictions placed on the use of the trust lands has consistently ap-plied a narrow interpretation to the terms of the Enabling Act.”).

The central problem which con-fronted the [Enabling] Act’s drafts-men was . . . to devise constraints which would assure that the trust received in full fair compensation for trust lands. The method of transfer and the transferee were material only so far as necessary to assure that the trust sought and obtained appropriate compensa-tion. This is confirmed by the legislative history of the Enabling Act. All the restrictions on the use and disposition of the trust lands, including those on the powers of sale and lease, were first inserted by the Senate Committee on the Territories. Senator Beveridge, the committee’s chairman, made clear on the floor of the Senate that the committee’s determination to require the restrictions sprang from its fear that the trust would be exploited for private advantage. He emphasized that the commit-tee was influenced chiefly by the repeated violations of a similar grant made to New Mexico in 1898. The violations had there al-legedly consisted of private sales at unreasonably low prices, and the committee evidently hoped to prevent such depredations here by requiring public notice and sale. The restrictions were thus intended to guarantee, by prevent-ing particular abuses through the prohibition of specific practices, that the trust received appropriate compensation for trust lands.

Lassen, 385 U.S. at 463-64 (1967) (em-phasis added) (footnotes omitted); see also State ex rel. State Eng’r v. Comm’n of Pub. Lands, 2009-NMCA-004, ¶ 30, 145 N.M. 433, 200 P.3d 86 (declining to interpret the terms of the Enabling Act expansively when the congressional intent behind the terms was clear).{44} The implications of the Land Com-missioner’s interpretation of the Enabling Act cannot be overstated. The inescapable result of validating these exchanges under his reasoning would be to authorize future public-private exchanges of any scale, subjecting millions of acres of trust land to “disposition” at the discretion of the Land Commissioner. We fail to understand why Congress would have taken such pains to safeguard sales and leases for the benefit of the trust, and then leave open all other kinds of “dispositions” from the trust to the vagaries of influence and manipulation. The Land Commissioner’s interpretation would open the door to collusive deals and favorit-ism, a door the framers of the Enabling Act explicitly stated intentions to shut. It would allow private deals favoring select private parties.C. The Failed 1990 Constitutional

Amendment{45} In addition to the Enabling Act’s plain language and its historical context, the recent 1990 election further confirms that the Enabling Act does not implicitly authorize exchanges. The proposed 1990 constitutional amendment would have added the following new language to Sec-tion 10 of the Enabling Act:

The State commissioner of public lands may exchange any land granted or confirmed by this Act for any land of the United States or an agency thereof, a State agency or political subdivision, a beneficiary of lands granted or confirmed by this Act, an Indian tribe or pueblo, or a private entity when the commissioner finds, af-ter consultation with the chief ad-ministrative officer of the affected beneficiary of lands granted or confirmed by this Act, that—

(1) based upon appraisals of the true value thereof, the value of the land to be received by the State is equal to or greater than the land to be conveyed by the State; and

(2) the proposed exchange is beneficial to the interests of the affected beneficiary.


Act of June 20, 1910, Pub. L. No. 101-386, § 1, 104 Stat. 739 (1990) (amending the Act of June 20, 1910) (emphasis added) (quotation marks omitted). The amendment required first a vote of Congress, Enabling Act, § 2(I), then a vote of the New Mexico Legislature, and finally the approving vote of the people, N.M. Const. art. 19, § 4. It failed the popular vote by a substantial mar-gin. The amendment essentially would have given the Land Commissioner the authority to enter into exchanges with private land owners, subject only to appraised value and without a public auction, authority that a 1988 New Mexico Attorney General Opinion had concluded did not exist.{46} The 1988 Opinion had concluded that “the Commissioner of Public Lands may not exchange state trust lands for lands of equal value held by private persons, local governing bodies, trust land beneficiary in-stitutions, state agencies or federal agencies other than the Interior Department.” N.M. Att’y Gen. Op. 88-35 (1988). The Attorney General Opinion had also concluded that, since the Enabling Act requires that lands be assigned a monetary value, then “any disposition of trust lands will be for an agreed upon value and will result in a ‘sale’ rather than an ‘exchange.’” Id. Continuing on, the 1988 Opinion had also concluded that, “[b]ecause of the mandatory appraisal, it is not possible for the Commissioner to engage in ‘exchanges’ of trust land for other land. The conveyances by the Commis-sioner will be ‘sales,’ and moreover must comply with the Enabling Act’s require-ments, including appraisal, advertisement and public auction with sale to the highest bidder.” Id.{47} Following the defeat of the proposed 1990 amendment, a subsequent attorney general overruled the 1988 Opinion. See N.M. Att’y Gen. Op. 91-15 (1991). The 1991 Opinion concluded that the Enabling Act’s use of the word “dispose” gives the Land Commissioner broad authority to convey land beyond just a sale or a lease, including a private exchange. Id. (“The authority of the Commissioner to ‘dis-pose’ of public lands granted by the New Mexico Constitution and, with restrictions, by the Enabling Act includes the power to exchange public lands.”). The 1991 Opin-ion also concluded that some of the sale and lease restrictions in Section 10 of the Enabling Act applied to exchanges (such as the requirement for sale at no less than

appraised value), but that other restrictions (notice and public auction) did not apply.3 Id. Thus, the 1991 Opinion advised that the Land Commissioner had the very exchange authority the people had rejected in the 1990 popular vote.{48} The proposal and failure of the 1990 constitutional amendment attests to the lack of legal authority to conduct unrestricted land exchanges with private entities under the Enabling Act. The Land Commissioner disagrees. He argues that the authority to exchange land with private parties existed even before 1990, and that the 1988 Opin-ion was simply misguided when it asserted the contrary. Accordingly, the proposed (and defeated) amendment was meant merely to “clarify” the preexisting author-ity. According to the Land Commissioner, the voters’ rejection in 1990 meant only that, in their judgment, the Enabling Act did not need clarification because the Land Commissioner had exchange authority all along. We are not persuaded.{49} Following the Land Commissioner’s logic, the legislative machineries of both the U.S. Congress and the State of New Mexico were put into motion simply to clarify an exchange authority that the Land Commissioner already had. And from there, the Land Commissioner’s logic would lead us to conclude that the voters’ decisive rejection of the proposed amendment was actually an endorsement of his exchange authority.{50} We operate from a working assump-tion that the Legislature (and for that matter the U.S. Congress) is well informed about the law and that its legislation is usually “intended to change the law as it previ-ously existed.” Bird, 91 N.M. at 284, 573 P.2d at 218; see also Stone v. INS, 514 U.S. 386, 397 (1995) (“When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.”). We conclude that this intention is especially true for amendments to the State Constitution and the Enabling Act—our most fundamental law.{51} When New Mexico Senator Domenici addressed the U.S. Senate in support of the proposed amendment, he explained that it would “permit the State of New Mexico to exchange . . . lands granted . . . by the United States,” and that without the pro-posed amendment “[u]nder the Enabling Act, the Public Lands Commissioner can only dispose of trust lands by sale or lease

to the highest bidder at a public auction.” 136 Cong. Rec. 21,234, 1990 WL 110523 (emphasis added). Senator Domenici went on to explain that “New Mexico has not amended its Enabling Act to permit such exchanges, except for the limited purposes of exchanging trust lands for National For-est Lands.” Id.{52} Congressman Vento of Minnesota, Chairman of the Subcommittee on Na-tional Parks and Public Lands, described the proposed amendment as a “noncontro-versial measure” dealing with a “technical . . . problem.” 136 Cong. Record 23,619 (1990), 1990 WL 129809. He admitted that the amendment was necessary because of doubt as to “the legal ability of the State, under the enabling act, to carry out . . . exchanges.” Id.{53} New Mexico Congressman Skeen urged passage of the “essential” amend-ment because “current authority is too restrictive to allow the land commissioner to properly carry out his responsibilities.” Id. at 23,620. In fact, Congressman Skeen advised that “[t]o remedy this void, Con-gress must pass this legislation allowing a change in the State’s Enabling Act. The voters of New Mexico must then approve a constitutional amendment.” Id. These ex-cerpts suggest that New Mexico’s members of Congress knew, and that Congress was surely advised, that without a change in the Enabling Act, the Land Commissioner could not legally engage in private land exchanges no matter how advisable or beneficial they might be.{54} The voters likely understood the pro-posed amendment in similar terms. Despite its title, “To clarify the authority of the Commissioner of Public Lands to exchange lands under his control,” the thrust of the proposed amendment was a grant of new authority to the Land Commissioner. The 1990 proposed amendment was not the first time the Land Commissioner had attempted to expand his authority, and it was not the first time such an expansion was rejected by the people. Former Land Commissioner Humphries was well aware of this trend when he addressed the Subcommittee on Public Lands, National Parks and Forests in support of the amendment: “[H]istory clearly reveals that the people of New Mexico have acted upon several exchange amendments and have clearly limited the commissioner’s authority to exchange.” 136 Cong. Rec. 21,235, 1990 WL 110523

3We note that this Court is not bound by opinions issued by the Attorney General and will give them only such weight as deemed ap-propriate. See First Thrift & Loan Ass’n v. State ex rel. Robinson, 62 N.M. 61, 70, 304 P.2d 582, 588 (1956).


(adopting Humphries’ earlier subcommit-tee statement into the record on the Senate floor).{55} In 1990, the people of New Mexico once again “acted upon” an “exchange amendment[],” and once again they “clearly limited the commissioner’s au-thority to exchange.” Id. We have no basis to conclude that the way people voted on the issue of the Land Commissioner’s ex-change authority in 1990 was any different than the way they have always voted. If the Land Commissioner wants exchange authority, then he must ask the people, and if the people turn his proposal down, then he does not have the desired authority. The Land Commissioner would have us engage in logical and semantical gymnastics. In-stead, we subscribe to the reasoning that, if the Enabling Act had always granted the Land Commissioner authority to conduct exchanges, there would have been no need for the amendment.4 Fain Land & Cattle Co. v. Hassell, 790 P.2d 242, 248 (Ariz. 1990) (in banc); see also Thompson v. Legislative Audit Comm’n, 79 N.M. 693, 696, 448 P.2d 799, 802 (1968) (“[T]he [constitutional amendment] was defeated, thus showing that the people were not will-ing to allow [an amendment] to sanction the legislative [action providing the same as the amendment that] would not only thwart the constitutional provision but would circum-vent the will of the people as expressed at the ballot box.”).D. Exchanges for a Minimum Mon-

etary Value May Be Considered In-Kind Sales

{56} Because disposals are limited to the manner provided within the Enabling Act and exchanges are not provided for, if any exchanges are permitted, such exchanges must be in-kind sales. Exchanges of land based on the monetary value of each parcel may be considered equivalent to a sale where the appraised consideration is not cash, but land. Thus, any exchange author-ity is subject to the same restrictions that apply to all sales governed by Section 10: public notice, a public auction with sale to the highest and best bidder, and sale at a price no less than appraised value.{57} This understanding of the Enabling

4Unlike the New Mexico Enabling Act, the Arizona Enabling Act was amended authorizing Arizona “to exchange any lands owned by it for other lands, public or private, under such regulations as the legislature thereof may prescribe: Provided, That such exchanges involving public lands may be made only as authorized by Acts of Congress and regulations thereunder.” Act of June 5, 1936, ch. 517, § 28, 49 Stat. 1477, 1478 (amending the Enabling Act for the State of Arizona, approved June 20, 1910). The Arizona Supreme Court interpreted the amendment as “Congress merely consent[ing] to removal of the restrictions against exchange of trust land, but . . . not requir[ing] Arizona . . . to amend its constitution or to pass legislation to allow exchanges.” Fain Land & Cattle Co. v. Hassell, 790 P.2d 242, 249-50 (Ariz. 1990) (in banc) (footnote omitted).

Act recognizes the Act’s common ground with Arizona’s Enabling Act. Arizona is our sister state—the same federal legislation enacted the New Mexico and the Arizona enabling acts, and the Arizona Enabling Act was nearly identical to the New Mexico En-abling Act when Arizona entered the Union. Compare Enabling Act, ch. 310, §§ 1-18, 36 Stat. 557, 557-68 with §§ 19-35, 36 Stat. 557, 568-79. In Fain, the Arizona Supreme Court considered the Arizona Enabling Act. Despite an amendment to the Ari-zona Enabling Act that “clearly permit[ted] Arizona to authorize exchanges of public trust lands,” the court concluded that such exchanges, still subject to the requirement for a minimum monetary value in return, amounted to in-kind sales that were subject to the Enabling Act’s sales requirements. Fain, 790 P.2d at 246-47; but see id. at 253 (Corcoran, J., concurring in result) (“The best indication that an exchange is not a ‘sale’ . . . is that exchanges were not allowed as ‘sales’ under the 1910 Enabling Act until it was amended in 1936 to include them. Implicit in that amendment is a recognition by Congress that the Enabling Act of 1910 did not allow exchanges.”). Fain explained that when “there is a fixed value at which the exchange is to be made,” 790 P.2d at 247, the transaction is really a sale with consideration received in-kind rather than as cash, see id. at 246-48 (dis-tinguishing its conclusion from jurisdic-tions that have differentiated between land exchanges and sales by quoting 30 Am. Jur. 2d Exchange of Property § 3, 365-66 (1967), which explained that the exchange of properties without measuring the value in terms of money is an exchange, but that the disposal of property for valuable con-sideration measured in terms of money is a sale).{58} Although the New Mexico Enabling Act has not been amended to “clearly permit . . . exchanges” like the Arizona Enabling Act, except in terms of exchanges with the U.S. Department of the Interior, we find Fain persuasive. A conveyance of land in exchange for other land, when the value is measured in monetary terms, may be considered an in-kind sale. This conclusion is also consistent with the 1988

Opinion by the New Mexico Attorney General, characterizing exchanges for a minimum monetary value as in-kind sales. N.M. Att’y Gen. Op. 88-35. Indeed, given the Enabling Act’s restrictions, the Land Commissioner can exchange only if the transaction passes scrutiny as a sale. As noted in Fain, Section 10 of the Enabling Act states in the most explicit terms that all state trust lands, leaseholds, timber, and so forth, “shall be appraised at their true value” and cannot be sold or otherwise disposed of “for a consideration less than the value so ascertained.” Thus, the Land Commissioner may not dispose of any trust land without first establishing its value in monetary terms and obtaining at least that monetary value as consideration. {59} For all the reasons discussed in this Section, we hold that, as an in-kind sale, any exchange of land must comply with the Enabling Act’s sales provisions. We stress that a constitutional amendment remains an option to obtain authority to conduct land exchanges without these restrictions. The Land Commissioner’s argument, that the 1988 Attorney General Opinion created so much confusion that congressional ac-tion and a constitutional amendment were required, concedes that the same need for such a constitutional amendment exists to-day. In the meantime, any ambiguity should be construed consistently with congres-sional intent and electoral will, and both counsel against the Land Commissioner’s expansive interpretation.III. Public Auction to the Highest and

Best Bidder{60} The State Land Office has promul-gated regulations that, the Land Commis-sioner argues, adequately provide for a public auction. We do not dispute whether the four challenged exchanges were con-ducted under these regulations. Rather, in this Section, we examine the second purely legal question regarding the Enabling Act’s limitations on the Land Commissioner’s discretion that we put forth above in our mandamus discussion: “As a matter of law, do the challenged exchanges comply with the required elements for a valid sale of land, including the requirement of a public auction to the highest and best bidder?”


A. A Public Auction Defined{61} An auction is “[a] public sale of property to the highest bidder.” Black’s Law Dictionary 149 (9th ed. 2009). In 1876, the Ohio Supreme Court described the history of the auction:

This practice is said to have originated with the Romans, who gave it the descriptive name of auction, an increase, because the offered property was sold to him who would offer the most for it. This method of sale was estab-lished by the Romans for the dis-posal of military spoils, and was conducted sub hasta—-that is, under the spear; on such occasions the spear was stuck in the ground. This practice has passed away as to the spear, but the method still continues.

Crandall v. State, 28 Ohio St. 479, 481 (1876). The court described some “modern” variations, including the “Dutch method” and “sale by candle,” but concluded that all variations have common elements:

At auctions the bidders fix by competition the price at which the offered property is sold. This competition is an element of each offer and each bid. Into each of the methods named, competition is a necessary element in the offer, the bid and the act of selling the offered property.

Id. Thus, competition is the means by which an auction achieves the primary goal, obtaining the best return for the seller. Around the same time, the U.S. Supreme Court described its understanding of a public auction: “When the law requires a sale of property, real or personal, to be made at public auction, after due notice, it is for the purpose of inviting competition among bidders that the highest price may be obtained for what is sold.” Porter v. Graves, 104 U.S. 171, 174 (1881).{62} Contemporaneously with the pas-sage of New Mexico’s Enabling Act, several state courts discussed the required elements for an auction. The Montana Su-preme Court interpreted the requirement that “sales of state lands shall be at public auction,” to mean “a sale to the highest and best bidder with absolute freedom for competitive bidding.” State ex rel. Danaher v. Miller, 160 P. 513, 515 (Mont. 1916) (internal quotation marks and citation omit-ted). The court further warned that “[a]ny agreement . . . to stifle competition or chill the bidding is a fraud upon the principle

upon which the sale is founded.” Id. The Supreme Court of the Territory of Hawaii explained that “competition . . . is that which distinguishes a sale at auction from other sales where the attempt to sell and to agree on a price is made with but one prospective purchaser at a time.” Territory v. Toyota, 19 Haw. 651, 653 (1909). The Idaho Supreme Court adopted Hawaii’s perspective: “In an auction, competition is a necessary element . . . .” Hammond v. Alexander, 177 P. 400, 401 (Idaho 1918) (citing Toyota, 19 Haw. at 653).{63} The foregoing opinions, issued around the same time that New Mexico became a state, are some indication of what the framers of the Enabling Act likely meant when they said: “Said lands shall not be sold or leased, in whole or in part, except to the highest and best bidder at a public auction.” Over time, courts have continued to focus on the element of competition as essential to a public auction. See In re Peoples Cab Co., 89 F. Supp. 577, 580 (W.D. Pa. 1950) (“[T]he very purpose of an auction . . . is to fetch together all those who may be interested to buy and set them against each other with whatever stimulus that may provide, as opposed to other kinds of sale.”); B.H. Stief Jewelry Co. v. Walker, 256 S.W.2d 392, 397 (Tenn. Ct. App. 1952) (“Competitive bidding, up or down, is an essential element of an auction sale. A sale at fixed or flat prices, no higher nor lower, is not an auction sale regardless of the manner in which the merchandise is offered for sale at the fixed price.”); State v. Pub. Util. Comm’n of Tex., 246 S.W.3d 324, 343-44 (Tex. App. 2008) (explaining the legislature’s intent in requiring an auc-tion was to encourage competition); Kolbo v. Blair, 379 S.W.2d 125, 129 (Tex. App. 1964) (“[A] sale at public auction is a sale to the highest bidder—its object, a fair price—its means, competition—its results, a sale, presumed as a matter of law to be fairly conducted.”); Mfrs. Hanover Trust Co. v. Koubek, 396 S.E.2d 669, 671-72 (Va. 1990) (explaining that a public sale and auction require a competitive environ-ment and that the early policies behind the requirement, protecting financial return, still apply today). We recognize that com-petition has been an essential element of a public auction since before the time New Mexico adopted the Enabling Act, that it was essential when New Mexico adopted the Enabling Act, and that it is still essential today.{64} Courts have also emphasized that an auction’s purpose is distinct from

other types of sales. The Hawaii Territo-rial Court, for example, instructed that “[t]he main purpose of auction sales is to obtain the best financial returns for the owners of the property sold.” Toyota, 19 Haw. at 652. The public auction, thus, is a mechanism to make sales using an objec-tive basis, the highest financial gain, to discern between offers. This characteristic of an auction made it an attractive tool when states sought to safeguard public land sales against favoritism. The Minnesota Supreme Court explained that the public auction requirement for sales of its state school lands was “to foster and conserve the school fund, to prevent school lands from being sold at an inadequate price, and to secure competition therefor, and to guard against favoritism in the disposition thereof.” State v. Evans, 108 N.W. 958, 959 (Minn. 1906){65} The U.S. Supreme Court stated that the public auction and notice requirements in the Arizona and New Mexico Enabling Act “were . . . intended to guarantee, by preventing particular abuses through the prohibition of specific practices, that the trust received appropriate compensation for trust lands.” Lassen, 385 U.S. at 464 (considering Arizona’s identical Enabling Act); see also Fain, 790 P.2d at 248 (“The purpose of [the auction] provision is to en-sure that the trust receives the most benefit possible from sale or other use of the trust lands. Without sale at public auction, the trust is not guaranteed the additional profit that might result from competitive bid-ding.” (internal citation omitted)). As pre-viously explained, the “particular abuses” that Congress sought to prevent were “the repeated violations of a similar grant made to New Mexico in 1898 . . . [that] allegedly consisted of private sales at unreasonably low prices, and the [Senate Committee on the Territories] evidently hoped to prevent such depredations here by requiring public notice and sale.” Lassen, 385 U.S. at 464 (footnote omitted).{66} Finally, courts recognize that for a valid auction to occur it must be “fair and open.” See, e.g., Springer v. Kleinsorge, 18 Mo. 152, 163 (1884) (“The offer of property at public auction is itself a procla-mation by the seller that the highest bidder, in a fair and open competition, is to obtain the property.”). Open competition furthers the purpose of using an auction as a sale mechanism because it dissuades favoritism and encourages objectivity. This raises the question as to what “open” means. Case law and our own Enabling Act’s history


demonstrate that an auction remains “open” even if general parameters are established for the purpose of ensuring that the high-est bid also results in the highest financial delivery. In other words, limiting bids to those parties whose credit is secured or parties who have other indicia of reliability in order to guarantee the “best financial returns,” is acceptable.

Some measure of discretion is vested in auctioneers as to the precise methods to be pursued in attaining [the best financial re-turns], for example, bids need not be accepted from minors or from persons irresponsible either finan-cially or mentally or from drunken persons or from one offering in bad faith or even from one making but a slight raise in his bid over the bid last announced.

Toyota, 19 Haw. at 653.{67} Section 10 of the Enabling Act in-corporates the idea that an “open” auction can be limited to pursue the best financial return as well. S. Rep. No. 61-454, at 18. Significantly, a prior version Section 10 of the New Mexico Enabling Act did not provide for an auction to the “highest and best bidder,” but rather only the “highest bidder,” S. Rep. No. 61-454, at 18. That earlier version also prohibited land sales on credit, “unless accompanied by security,” id., the credit sales provision was later re-moved, and the term “and best” was added, requiring that the winning bidder be the “highest and best,” Enabling Act § 10. The initially proposed limitation on credit sales is precisely the type of limitation contem-plated by the requirement that the highest bid also be the “best bid.” Requiring sale to the “highest and best” bidder therefore provides for objective selection of the win-ning bid at a public auction, while ensuring that the sale remain open to competitive bidding.{68} Thus, the Enabling Act’s mandate that sales be only to “the highest and best bidder at a public auction” requires more than just a minimum floor price. It means that the trust beneficiaries have, at least, an opportunity by way of a sale driven by open competition among bidders for the best price. The inclusion of the term “best” does not, however, provide discretion in selecting the winning bidder. Just as other courts have done before us, we recognize that the purpose of an auction is to obtain the highest financial return. Further, we recognize that Congress selected a public auction as the mechanism for selling public

lands in New Mexico to allow an objective means for buyer selection, thus eliminating the risk of favoritism that was pervasive in public land sales, particularly in the New Mexico Territory before the Enabling Act.B. Private Negotiations and

Bargaining{69} Before today our Court had not dis-cussed the elements required for a valid public auction. In State ex rel. Otto v. Field, however, we wrote that the Enabling Act re-quires the same basis for all bids and bidders and that a negotiated contract, established after an auction, would be objectionable because it would defeat that requirement. 31 N.M. 120, 179, 241 P. 1027, 1050 (1925). Other jurisdictions have found that nego-tiations and bargaining prior to an auction impede competition and are inconsistent with the meaning of a true auction. As we shall see, the presence of extended negotia-tions with one bidder long before notice to the public of an auction presents a particular problem for the Land Commissioner in this case.{70} The U.S. Supreme Court long ago rec-ognized the contradiction between private negotiation and public auction. See Porter v. Graves. 104 U.S. 171 (1881). In Porter, a seller negotiated for the sale of property left intestate, for which state law required sale of the intestate property at a public auction. Id. at 172-73. In order to “comply” with that law, the property was advertised and then announced at the sale by the auctioneer as “sold to perfect a contract for sale” to the buyer’s company. Id. at 173. The Court found that, if the sale were challenged by parties “interested in having the property bring its full value,” the sale would surely have been set aside because it was not a valid auction. Id. at 174. Continuing on, in language particularly appropriate to the four challenged exchanges in this case, the Court stated:

To make a private bargain before-hand between the party who wishes to buy and the person authorized to sell, as to the price and other incidents of the contract, and then invoke the forms of a public sale with competition to give effect to the private bargain is a course of procedure well calculated to defeat the purpose for which the public sale is required.

Id. at 174.{71} Similarly, state courts have found negotiations and bargaining between bid-ders prior to an auction to be antithetical

to a valid auction. In Hammond, the Idaho Supreme Court found that a conveyance of state trust land was not sold by auction as required by the state’s constitution, when negotiations occurred between the bidding parties. 177 P. at 400-01. Before bidding started, auction participants drew lots among themselves for the parcels of land available and then took turns “bidding,” one party per parcel, as determined by the lots drawn. Id. Although the court found that not all agreements among prospective bidders would defeat an auction, “if the purpose in so agreeing is to stifle competition, and if it causes the property to be awarded to a bidder, or bidders, for less than would have otherwise been offered, the vendor may avoid the sale.” Id. at 401. Because the court found the sale was void, it rejected the writ of mandamus requesting enforcement of the sale. Id.{72} We recognize that bargaining and negotiation between buyers and sellers or between buyers prior to a sale negates the essence of what it means to have a public auction free and open to competition. Rather than seeking the highest financial gain through objective means, negotiation and bargaining design a satisfactory exchange for two parties to the exclusion of the public. See Black’s Law Dictionary, supra, at 169 (defining a bargain as “[a]n agreement be-tween parties for the exchange of promises or performances), 1136 (defining a negotia-tion as “[a] consensual bargaining process in which the parties attempt to reach agree-ment on a disputed or potentially disputed matter”). “Negotiation usu[ally] involves complete autonomy for the parties involved, without the intervention of third parties.” Black’s Law Dictionary, supra, at 1136.C. The Challenged Exchanges{73} For the following reasons, the four challenged land exchanges do not comply with the Enabling Act’s requirement for a public auction. The undisputed facts on re-cord show that each land exchange process involved extensive private negotiations with specific parties. Those private parties had significant advantages over any possible “competitors.” The Land Commissioner “target[ed]” the exchange lands as part of an overall plan, whereby the purpose of the exchanges was not to secure the highest financial gain to the trust through selection of the “highest and best” bid, but rather to accomplish other land management goals. Finally, the means for selecting the winning bid were not objective. Thus, the exchanges embody the elements indicative of favorit-ism that the drafters of the Enabling Act


sought to avoid by requiring public notice and public auction.{74} In describing the Stanley Ranch ex-change, the Land Commissioner concedes that the exchange would not have been possible or desirable to the state:

In the absence of this kind of dis-cussion and a bidding process that allowed for a single transaction in which certain trust lands would be conveyed for other lands which would justify the disposition, it is unlikely that any kind of trans-action could be completed that would provide sufficient benefit to the trust.

In other words, the negotiations that took place for the Stanley Exchange were the only way to accomplish the goals the State Land Office had set for that land exchange. Because no other parties had the opportunity to participate in such discussions that made “any kind of transaction . . . sufficient[ly] benefi[cial] to the trust,” there was no com-petition, no safeguards of objectivity, no openness, and thus no “public auction.”{75} The Land Commissioner insists there was no taint of favoritism. But the require-ment of a public auction means that the people should not have to take anyone’s word attesting to his or her objectivity. To the contrary, the Enabling Act chose a mechanism to protect against favoritism and stipulated a public auction “to the highest and best bidder” through open competition. The people did not select, and in fact re-jected, “private negotiation” as an approved mechanism for the sale of public land.D. Lack of Competition{76} During oral argument the Attorney General compared the challenged land exchanges to the sale of a tailor-made suit; he questioned whether any true competition could take place when an auctioned product was custom-made for only one particular customer. The metaphor is a good one, if incomplete. More precisely, each transaction is better thought of as an exchange of tailor-made suits, in which the “auctioned” suit is custom-made for the buyer, suits are the preferred currency, and the “winning” suit is custom-made for the seller. No one else has such a suit, or as a practical matter, can find one. Competition is surely in jeopardy when the bidding party also holds the one and only suit custom-made for the seller.{77} The uncontested facts demonstrate, more clearly than an exchange of custom-made suits, that the land exchange proce-dure applied in each of the four challenged exchanges lacked competition. First, each

applicant (a neighboring landowner) con-tacted the State Land Office to specify land desired in exchange for specific land held by the State Land Office. This first step in the exchange procedure allowed the applicant the opportunity to craft the land available for sale to his own interests. While this step of the process, alone, may not have precluded competition entirely, it contributed to the lack of competition when combined with the next steps.{78} The State Land Office then appraised the exchange proposal for the land’s value and its ability to ameliorate management and access issues. If interested in the ap-plicant’s proposal, the State Land Office then began working with the applicants to plan a sale that satisfactorily met the inter-ests of both parties—the applicant and the State Land Office. This second step of the exchange process allowed the applicants an extended time period, compared to the notice for any other parties, to design their bids through back and forth communication over a substantial period of time. These communications and adjustments occurred long before other potential bidders were notified that the Land Commissioner would be exchanging land.{79} Even the Land Commissioner de-scribes this process as a “negotiation” with each private land owner. In the case of the Stanley Ranch exchange, the initial evalua-tion by the Land Commissioner found “sub-stantial changes would need to be made in order to proceed with the consideration of any exchange.” State Land Office staff then spent many months discussing “an exchange that would meet legal require-ments and be beneficial to the trust.” The Stanley Ranch negotiations took two years before the Land Office announced an “auc-tion.” The UU Bar Ranch negotiation took over a year and a half, and the CS Ranch and Galloway exchange negotiations had been going on for over a year and a half before the Attorney General filed its Writ of Mandamus early in 2010.{80} Based on the foregoing process, by the time an auction was announced by the Land Commissioner at the tail end of the process, one applicant already knew that its previously proposed and negotiated ex-change was mutually agreeable. In contrast, all other potential bidders were permitted only ten weeks between announcement of the sale and an opportunity to participate in the sale. During those ten weeks other potential bidders had to (1) ascertain the desirability of the lands offered by the State Land Office, (2) determine the risk/

reward of spending the time and money to appraise their lands when another bid already existed that was acceptable to the State, (3) appraise their exchange land, and (4) construct a competitive bid of greater value than the lands offered, either inde-pendently or in cooperation with others.{81} All the while, other potential bidders would know that the Land Commissioner did not have to accept their bids, even if superior in price and ability to perform—because, as we shall see in the discussion below, the Land Commissioner’s criteria for selecting the winning bids were not objective, nor were they focused on the “highest and best” bid. Even if competing bids were theoretically possible in the face of the advantages to the bidding landowner and disadvantages to other bidders, the pro-cess was designed such that other bidders would not likely succeed. The foregoing procedure made competition—the essential element of an auction—improbable rather than fundamental.E. Public Auction Purpose Frustrated{82} In addition to the lack of competition, the challenged exchanges and the State Land Office’s exchange process frustrate the intended purpose of a public auction as well as the purpose of the Enabling Act’s inclusion of the public auction sales requirement. As we discussed, supra, the purpose of an auction is to obtain the highest financial gain, and the purpose of Congress’s requirement that an auction be the mechanism used for public land sales was to require an objective means of sale, eliminating the possibility of private favor-itism.{83} We should be candid about the objec-tives of these particular exchanges. They were designed to achieve a predetermined result. The exchanges were for the pur-pose of addressing specific land manage-ment problems in specific geographical regions—checkerboard areas—that could only be resolved by privately negotiated exchanges with neighboring landowners. Only certain land, however, along the checkerboard border could be exchanged in a manner that would ameliorate land management problems of both the State Land Office and its neighbors. Outside land (land from somewhere else) might be worth more, even a lot more, but it could not address the checkerboarding issue; it would only replace one owner for another into the same checkerboarding problem. It is no stretch for us to recognize that these problems could only be resolved through a privately negotiated exchange, which is


exactly what the parties attempted to ac-complish.{84} For example, the Stanley Ranch ex-change would provide the ability to fulfill the State Land Office’s “plan” for an access road and campsites, all part of creating “a prime recreational and quality hunting area.” The UU Bar Ranch proposal was of interest because it offered in-fill parcels. The CS Ranch exchange would allow construction of a loop road and would fill in land holdings. The Galloway proposal would provide in-fill parcels and an access road.{85} The State Land Office frankly states in its Brief in Opposition, at page 40, that

[t]he checkerboarding problems in the White Peak area created a “compelling reason” for the Commissioner to target specific lands for exchange in order to consolidate, or “unitize,” the existing state trust lands in the area, thereby increasing the value of those lands by more than $13 million, enhancing the Commis-sioner’s ability to protect that land, increasing the recreational opportunities available within the area, increasing access to the trust lands, and augmenting grazing revenues.

(Emphasis added.) Not only were the lands targeted for exchange, but the State Land Office describes the exchanges as the Land Commissioner exercising his “power to manage lands through exchanges designed to address the checkerboarding problems in various parts of the state.” (Emphasis added.) The State Land Office’s exchange rules, in fact, state that “the commissioner . . . may select the proposal or proposals he determines are the highest and best, that is, the proposal or proposals that he believes will be most beneficial to the trust in ac-cordance with the standards set forth in Subsection A and C of 19.2.21.8 NMAC.” 19.2.21.10 NMAC (6/15/2004). Subsection A provides that “[t]he commissioner may enter into an exchange when the commis-sioner determines that the exchange will result in a material benefit to the trust and the purpose of the exchange would serve the best interests of the trust.” 19.2.21.8(A) NMAC (6/15/2004). Subsection C, simi-larly, allows “the commissioner [to] select another method of determining true value [one that does not involve a qualified ap-praiser] if he determines that such method is in the best interests of the trust and conform to law.” 19.2.21.8(C) NMAC. According to

the State Land Office Rules, the purposes of land exchanges are subjectively defined by the Land Commissioner, and financial advantage to the trust is not emphasized as the priority. In line with these rules, both the Stanley Ranch and the UU Bar Ranch bid specifications vested the Land Commis-sioner with discretion to select the winning bid, based on subjective factors rather than absolute financial benefit to the trust fund. The “Selection of the Winning Bid” provi-sion of the Bid Information Packets for both exchanges provided, in full:

The Commissioner will exercise his discretion in selecting the exchange proposal which is in the best interest of the State trust, con-sidering the following factors:

(1) the extent to which the appraised value of the Offered Lands, as determined by the Com-missioner, exceeds the appraised value of the Exchange Lands;

(2) the effect, if any, that the bidder’s proposed use of the Ex-change Lands would have on the utility and value of any adjacent state trust lands;

(3) the proximity of the Of-fered Lands to other state trust lands, and any land management issues;

(4) the difference in acreage between the Offered Lands and the Exchange lands;

(5) any other benefits accruing to, or detriments to, the state trust from the proposed acquisition.

None of the five factors provides an objec-tive, measurable means of distinguishing between bids. Even if a bid were highest in monetary value and demonstrably superior in all respects under factors (1)-(4), factor (5) would give the Land Commissioner dis-cretion to reject that bid based essentially on anything he determined to be in the “best interest” of the trust. Such opportunity for discretion is a direct affront to the purposes of the public auction requirement.{86} In sum, the four challenged exchanges and the State Land Office exchange proce-dures, in general, preclude the existence of a public auction. As a matter of law, private negotiation negates the required competition. Further, the Land Commis-sioner’s discretion to select a buyer negates the safeguards intended by the Enabling Act’s auction requirement. Without the benefit of an auction’s objective means of sale, awards of land only for the highest financial return to the state trust, there is

no protection against favoritism. Therefore, such private land exchanges represent a departure from the Land Commissioner’s ministerial duties under the Enabling Act. When the Land Commissioner chooses to dispose of land, he must do so by a true public auction.IV. Scope of the WritA. Completed Exchanges.{87} The Land Commissioner exceeded the bounds of permitted authority under the Enabling Act by conducting the Stanley Ranch and the UU Bar Ranch exchanges. Section 10 of the Enabling Act provides that “[e]very sale, lease, conveyance or contract of or concerning any of the lands hereby granted or confirmed, or the use thereof or the natural products thereof, not made in substantial conformity with the provisions of this Act shall be null and void . . . .” Under NMSA 1978, Section 19-7-8 (1912), the Land Commissioner has the “power to cancel any lease, contract or other instrument executed by him which shall have been obtained by fraud or ex-ecuted through mistake or without author-ity of law.” As such, the Stanley Ranch and the UU Bar Ranch exchanges are null and void and must be cancelled. A Writ of Mandamus will issue ordering the Land Commissioner to cancel all documents or other legal instruments purporting to implement these two exchanges including any transfers of title.B. The Planned CS Ranch and

Galloway Exchanges{88} While the CS Ranch and Galloway exchanges have not been consummated with an auction or a transfer of title, they have proceeded thus far in the same man-ner as the unlawful Stanley Ranch and UU Bar Ranch exchanges. We have held that “Public functionaries may be restrained by mandamus from doing what they know is an illegal act.” Kiddy v. Bd. of Cnty. Comm’rs of Eddy Cnty., 57 N.M. 145, 152, 255 P.2d 678, 683 (1953). If these exchanges were to continue as planned, the Land Commissioner would once again be in violation of the Enabling Act. Therefore, a Writ of Mandamus will issue compelling the Land Commissioner to comply with the sales requirements of the Enabling Act and ordering the Land Commissioner not to consummate or proceed any further with the CS Ranch and Galloway exchanges. See State ex rel. Clark v. Johnson, 120 N.M. 562, 570, 904 P.2d 11, 19 (1995) (“It is well settled that the two processes, mandamus and injunction, are correlative in their char-acter and operation. As a rule, whenever


a court will interpose by mandamus to compel the performance of a duty, it will exercise its restraining power to prevent a corresponding violation of duty.” (quoting In re Sloan, 5 N.M. 590, 628, 25 P. 930, 942 (1891))).C. Prospective Application{89} In light of the previously debated state of the law regarding the question of exchanges, we apply our writ and the reasoning behind it only to the exchanges challenged by the Attorney General in this case and not to any exchanges that may have taken place in the past. See Beavers v. Johnson Controls World Servs., Inc., 118 N.M. 391, 397 n.7, 881 P.2d 1376, 1382 n.7 (1994) (explaining the availability of selective prospective or modified prospec-tive decisions when the Court explicitly declares such a holding). We do not wish to leave any cloud on previously transferred titles that are not before us.5 We have previ-ously applied our opinions prospectively when policy considerations compelled such a choice. See Montano v. Gabaldon, 108 N.M. 94, 96, 766 P.2d 1328, 1330 (1989) (holding that Valencia County’s revenue bonds were unconstitutional but apply-ing the holding prospectively so as not to disturb similar, previous bond transactions that had taken place in reliance on a then-accepted understanding of the law); see also Hicks v. State, 88 N.M. 588, 592-93, 544 P.2d 1153, 1157-58 (1975) (abolish-ing common law sovereign immunity prospectively so as to give the legislature opportunity to create a risk management fund and to institute selective statutory sovereign immunity). We also observe that the Attorney General has not sought to chal-lenge the Land Commissioner’s authority to engage in any future exchanges with public entities. Accordingly, we express no view on that subject. CONCLUSION{90} The Petitioner’s Writ of Mandamus is granted.{91} IT IS SO ORDERED. RICHARD C. BOSSON,

Justice

5We are led to believe that numerous exchanges with public entities have taken place over the years. At oral argument the Land Com-missioner suggested that the State Land Office has exchanged land with numerous private parties as well. However, the only private exchange referenced in the Land Commissioner’s briefing was the 1983 United Nuclear Corporation exchange, involving less than 500 acres of land and a recent exchange with Easter Seals Santa Maria El Mirador. After oral argument before this Court and supplemental briefing from the parties, Easter Seals Santa Maria El Mirador and Union Pacific Railroad Company submitted a joint amicus curiae brief, asserting they had each consummated private exchanges for small amounts of land with the Land Commissioner. This Opinion has no effect upon any previous exchanges.

WE CONCUR:PATRICIO M. SERNA, JusticePETRA JIMENEZ MAES, JusticeEDWARD L. CHÁVEZ, Justice (dissenting)CHARLES W. DANIELS, Chief Justice (joining in the dissent)

CHÁVEZ, Justice, dissenting.{92} The Land Commissioner is not simply an auctioneer charged with the re-sponsibility to sell public trust lands. The Commissioner is a trustee of public lands with fiduciary responsibilities to preserve, protect, and manage trust lands so as to make the lands productive for the benefit of the trust beneficiaries to whom he owes an undivided loyalty. The majority has eliminated a seldom used, but occasionally necessary and effective land management strategy available to the Land Commis-sioner, which can increase the value of the trust corpus and make management of the property more efficient and economical, thereby maximizing the benefit to the trust beneficiaries. Constraining the Land Com-missioner’s fiduciary responsibilities and the exercise of his discretion exceeds the limits of our power to issue writs of man-damus, and is detrimental to the interests of the trust lands’ beneficiaries. Therefore, I respectfully dissent.{93} This Court has repeatedly observed that the writ of mandamus is an ex-traordinary remedy to be reserved for extraordinary circumstances. To ensure that the writ issues only in extraordinary circumstances, since before statehood this Court has required (1) that a party seeking issuance have no other adequate means to attain the desired relief, and (2) the duty sought to be enforced is clear and indis-putable. Regents of Agric. Coll. v. Vaughn, 12 N.M. 333, 342-43, 78 P. 51, 53 (1904). Other adequate means do exist to challenge the land exchanges at issue, including the remedy provided for in the Enabling Act. N.M. Territorial Laws & Treaties, Enabling Act for New Mexico (Act of June 20, 1910, 36 Stat. 557, ch. 310) (“the Enabling Act”). In addition, as is evident from the briefs filed by both the parties and Amici, the

Land Commissioner’s duty not to exchange trust lands for more valuable and produc-tive lands is neither clear nor indisputable. On the contrary, land exchanges that (1) substantially conform to the requirements of the Enabling Act, (2) are consistent with the best interests of the beneficiaries, and (3) comport with the rules adopted by the Land Commissioner are permissible.{94} This mandamus proceeding is also inappropriate because whether the subject land exchanges satisfy these criteria re-quires the development of a factual record. The Commissioner has asserted that the subject land exchanges have increased the value of the trust corpus by $13,000,000 and have met his objectives to (1) improve boundary distinction for trust lands; (2) consolidate holdings so that the State would own 43,000 contiguous acres (25,000 contiguous on the east side of White Peak and 18,000 contiguous on the west side of White Peak); (3) facilitate effective land management strategies; (4) mitigate tres-pass, vandalism, theft, illegal vehicle use, and poaching; (5) create a quality game and wildlife area; (6) improve existing roads and construct new, all-weather roads to provide safe access; (7) close unnecessary roads to conserve wildlife habitat; (8) de-velop campgrounds and facilities for hunt-ers and recreational users; (9) implement forest restoration programs to improve forest health and wildlife habitat. Whether the exchanges did in fact increase the value of the trust corpus and meet objectives that are consistent with the best interests of the trust beneficiaries requires the development of facts. Therefore, those with standing who believe these exchanges are inconsistent with the Land Commissioner’s fiduciary obligations may sue in a court of general jurisdiction to void any exchange which does not substantially conform with the requirements of the Enabling Act.I. MANDAMUS IS APPROPRIATE

ONLY WHEN THE DUTY AT ISSUE IS CLEAR AND INDISPUTABLE

{95} Although a writ of prohibition cannot lie against a state official, see State ex rel. Bird v. Apodaca, 91 N.M. 279, 281-82,


573 P.2d 213, 215-16 (1977) (“Prohibition, by its very nature, will not lie against state officers.”), mandamus can be used in a prohibitory manner to prohibit unlawful or unconstitutional official action. See Kiddy v. Bd. of Cnty. Comm’rs of Eddy Cnty., 57 N.M. 145, 152, 255 P.2d 678, 683 (1953) (“Public functionaries may be restrained by mandamus from doing what they know is an illegal act.”). In considering whether to issue a prohibitory mandamus, we do not assess the wisdom of the public official’s act, we determine whether that act goes beyond the bounds established by the New Mexico Constitution. State ex rel. Clark v. Johnson, 120 N.M. 562, 570, 904 P.2d 11, 19 (1995).{96} The Constitution and laws of New Mexico define the limits of authority for each branch of government. In 1904, the limits of our authority to issue a writ of mandamus were defined by the Territorial Supreme Court when it wrote “[i]t is said by the highest judicial tribunal in the land that, ‘mandamus lies to compel the performance of a statutory duty only when it is clear and indisputable.’” Vaughn, 12 N.M. at 342-43, 78 P. at 53 (quoting Bayard v. United States ex rel. White, 127 U.S. 246, 250 (1888)). We have never abandoned the requirement of a clear and indisputable duty as essential for the issuance of a writ of mandamus. Johnson v. Vigil-Giron, 2006-NMSC-051, ¶ 22, 140 N.M. 667, 146 P.3d 312. Instead, because it is such an extraordinary writ that must be issued only in extraordinary circumstances, we have carefully defined its limits.

Mandamus is a drastic remedy to be invoked only in extraordinary circumstances. The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law. It shall issue on the information of the party beneficially interested. [A] writ of mandamus is available only to one who has a clear legal right to the performance sought; it is available only in limited circumstances to achieve limited purposes.

State ex rel. Coll v. Johnson, 1999-NMSC-036, ¶ 12, 128 N.M. 154, 990 P.2d 1277 (internal quotation marks and citations omitted).

While mandamus will not lie to correct or control the judgment or discretion of a public officer in matters committed to his care in the ordinary discharge of his

duties, it is nevertheless well es-tablished that mandamus will lie to compel the performance of mere ministerial acts or duties imposed by law upon a public officer to do a particular act or thing upon the existence of certain facts or condi-tions being shown, even though the officer be required to exercise judgment before acting.

State ex rel. Four Corners Exploration Co. v. Walker, 60 N.M. 459, 463, 292 P.2d 329, 331-32 (1956) (citations omitted). “A minis-terial act is an act which an officer performs under a given state of facts, in a prescribed manner, in obedience to a mandate of legal authority, without regard to the exercise of his own judgment upon the propriety of the act being done.” State ex rel. Perea v. Bd. of Comm’rs of De Baca Cnty., 25 N.M. 338, 340, 182 P. 865, 866 (1919). Therefore, our jurisprudence instructs that before we are empowered to issue a writ of mandamus, (1) the boundaries of the duty at issue must be clear and indisputable, (2) the public official must not have discretion in the performance of the duty, and (3) there must not exist another plain, speedy, and adequate remedy in the ordinary course of law.{97} In this case, despite notice to the public as required by the Land Commis-sioner’s rules, 19.2.21.9(D) NMAC, only one bid was received, and no members of the public objected to the bid process. The Attorney General has not filed this mandamus proceeding on behalf of any specific beneficiary who contends that the Land Commissioner breached his fiduciary duty to them by engaging in the subject land exchanges. The Attorney General does not contend that the Land Commissioner failed to comply with the Enabling Act’s public notice requirements; failed to open the bidding to all members of the public; engaged in an exchange of trust lands for a value that was less than the true appraised value of the trust lands; or that the exchange will not serve the best interests of the trust beneficiaries by making management of the trust corpus more efficient and economical. Instead, the Attorney General contends that the Land Commissioner did not comply with the public auction requirements be-cause the Commissioner required compet-ing bidders to offer, at a minimum, land with at least the same value as the trust land, and only for all of the trust land the Commis-sioner proposed to dispose of. These bid requirements, argues the Attorney General, substantially constrained the public auction

to achieve a predetermined result. In other words, the Attorney General wants this Court to hold that the Land Commissioner must allow a bidder to bid for trust land in cash, land, other items of value or a com-bination thereof, and the bidder may also bid on a portion of the land being offered at auction.{98} Thus, the question before us is wheth-er the Land Commissioner has a clear and indisputable duty to allow bidders to offer any and all forms of consideration and on any portion of the land the Commissioner seeks to dispose of in a public auction. As will be discussed, this duty is not clear and indisputable. The Land Commissioner has the discretion to establish the terms of the auction that are in the best interests of the trust beneficiaries. In addition, there are adequate remedies, including the remedy given in Section 10 of the Enabling Act, that authorize an action to enforce the pro-visions of the Enabling Act and render null and void any “sale, lease, conveyance or contract of or concerning any of the [trust] lands” which are not made in “substantial conformity with the provisions of [the En-abling] act.” Enabling Act § 10.{99} Despite the Attorney General’s nar-row complaints, the majority has raised its own concerns with the auction process and would preclude the Land Commis-sioner from having any discussions with a potential bidder before the auction and from considering any criteria other than financial criteria. I do not agree that such discussions are precluded. Instead, such discussions will aid the Land Commissioner in defining the best interests of the trust beneficiaries, thus defining a bid’s minimum requirements. Any member of the public is still invited to meet or exceed the minimum bid requirement. The Land Commissioner may still be called to answer whether such a bid exceeded the true appraised value of the trust land and whether the bid was in the trust beneficiaries’ best interests. When evaluating which is the highest and best bid that is consistent with the trust beneficiaries’ best interests, immediate revenue is not the only consideration.II. FIDUCIARY DUTIES OF THE

LAND COMMISSIONER{100} New Mexico Constitution Article XIII, Section 2 delegates to the commis-sioner of public lands the responsibility to “select, locate, classify and have the direction, control, care and disposition of all public lands, under the provisions of the acts of congress relating thereto and such


regulations as may be provided by law.”6 To carry out these constitutional respon-sibilities, the Legislature empowered the Commissioner to “make rules and regula-tions for the control, management, disposi-tion, lease and sale of state lands.” NMSA 1978, § 19-1-2 (1953). See also State ex rel. Otto v. Field, 31 N.M. 120, 133, 241 P. 1027, 1032 (1925) (“The commissioner was given ample power to make rules and regulations ‘for the control, management, disposition, lease and sale of state lands.’”). On August 5, 1992, the Land Commissioner adopted State Land Office Rule 21, which specifically addresses land exchanges. 19.2.21 NMAC (recodified 12/13/02). The Commissioner is also authorized by statute to “execute and authenticate for the state all deeds, leases, contracts or other instruments affecting” state lands. Section 19-1-2.{101} The New Mexico Enabling Act declares that all lands granted to the State of New Mexico are to be held in trust. 36 Stat. 557, Sec. 10 (1910). “[T]he emergence of the trust concept was originally initiated by the states,” and Congress influenced by these practices, “incorporated trust language into the last enabling act that created the states of New Mexico and Arizona.” Sean E. O’Day, School Trust Lands: The Land Manager’s Dilemma Between Educational Funding and Environmental Conservation, a Hob-son’s Choice?, 8 N.Y.U. Envtl. L. J. 163, 184 (1999) (footnotes omitted). The trust concept arose because although some trust land was lost due to incompetence or cor-ruption, most of the land was lost because states regularly chose to rapidly sell the lands for the purpose of funding schools. Sally K. Fairfax, et al., School Trust Lands: A Fresh Look at Conventional Wisdom, 22 Envtl. L. 797, 807 (1992). However, states began to recognize that liquidating trust lands would make sustaining a continuing source of funding difficult. O’Day, supra, at 182. As a result, the trend in the states shifted from dissipating the trust lands they had been granted by the federal government to retaining those lands. Id. at 181.

One consequence of this gradual and implicit evolution toward land retention is that the states continue to have a choice regarding whether to sell or retain the lands. Even today, like the federal government, the states

continue to engage in land sales and exchanges. Hence, the shift to retention does not imply that no state trust lands will ever be sold, but rather that the presumption is in favor of retaining rather than disposing of the lands.

Fairfax, supra, at 824 & 824 n.93 (footnotes omitted) (“State trust land managers tend to maintain a portfolio of lands for investment and management purposes. . . . All states except California engage in land exchanges to block in their scattered sections. Oregon and Arizona have moved particularly ef-fectively in this direction.”).{102} New Mexico has interpreted the trust language in the Enabling Act as creat-ing a charitable trust with the beneficiaries comprised of the citizens of New Mexico. Forest Guardians v. Powell, 2001-NMCA-028, ¶¶ 9-10, 130 N.M. 368, 24 P.3d 803. However, the Land Commissioner’s undi-vided loyalty is to the designated beneficia-ries and not the State as a whole. State ex rel. Shepard v. Mechem, 56 N.M. 762, 770, 250 P.2d 897, 902 (1952) (funds from lands granted by the Enabling Act may not be used to defray general government expens-es). In Ervien v. United States, 251 U.S. 41, 48 (1919), the United States Supreme Court held that the New Mexico Land Commis-sioner could not expend money derived from the sale of trust lands to promote the state. The Court reasoned that “[t]here is in the Enabling Act a specific enumeration of the purposes for which the lands were granted and the enumeration is necessarily exclusive of any other purpose.” Id. at 47; see also Lassen v. Arizona ex rel. Arizona Highway Dep’t, 385 U.S. 458, 468 (1967) (“the purposes of Congress require that the Act’s designated beneficiaries ‘derive the full benefit’ of the grant” (citation and foot-note omitted)); Cnty. of Skamania v. State, 685 P.2d 576, 580 (Wash. 1984) (en banc) (“A trustee must act with undivided loyalty to the trust beneficiaries, to the exclusion of all other interests.”). The beneficiaries of the trust lands at issue are identified as the public schools in New Mexico, New Mexico State University, Las Vegas Medi-cal Center, New Mexico Military Institute, New Mexico Tech, New Mexico School for the Deaf, the State Penitentiary, Miners’ Colfax Medical Center, the School for the Blind, and charitable and penal reform.{103} The Commissioner is subject to

the same fiduciary obligations as any pri-vate trustee. Cnty. of Skamania, 685 P.2d at 580. “All powers of trusteeship are held in the trustee’s fiduciary capacity and must be exercised in good faith and to serve the interests of the beneficiaries.” Restatement (Third) of Trusts § 86, cmt. b (2007). A trustee’s duties include the protection and management of the trust property to pro-vide returns or other benefits to the trust, id. § 76; duty of prudence, id. § 77; and loyalty, id. § 78. To carry out these duties, the Commissioner must decide whether it is better for the trust beneficiary to sell the lands and invest the receipts or retain and manage the lands. When the Commissioner retains and manages trust lands, he must also be concerned about the allocation of personnel and management resources to make the land productive, maintain fences and roads, prevent overgrazing, control soil erosion, minimize trespass damage and the risk of fires, and enhance wildlife habitat, among other duties. The benefit to the trust is maximizing revenues and profits while minimizing the costs incurred to manage the property. Accordingly, the Commis-sioner should have the flexibility to man-age the land in a manner that enhances the opportunity for the largest return consistent with the beneficiaries’ objectives. The objectives of the beneficiaries can hardly be said to be the consumption of the entire trust corpus. {104} The flexibility required to manage the land necessarily calls for the exercise of discretion consistent with the terms and purpose of the trust or as required by the exercise of the trustee’s fiduciary duties. Id. § 87. A court should not interfere with a trustee’s exercise of a discretionary power when that exercise is reasonable and consis-tent with the trust purposes and the trustee’s fiduciary duties. Id. The purpose of the Enabling Act is to prevent the sale of land at unreasonably low prices. Lassen, 385 U.S. at 464. Indeed, written into Section 10 of the Enabling Act is the requirement that no sale or other disposal of trust property be made for a consideration less than the true appraised value of the trust property. Id. Thus, one of the express purposes of the Enabling Act is to obtain the fair market value of the property being sold. Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 637 (10th Cir. 1998).{105} We have held that the Land Com-

6New Mexico Constitution Article XXIV, Section 1 reserves unto the Legislature the authority to specify the terms and conditions of leases and contracts reserving a royalty to the State from minerals, geothermal steam, and waters on lands confirmed to the State by the act of Congress of June 20, 1910 (the Enabling Act).


missioner has broad discretion to decide the policy question of how he or she will offer trust lands for sale and the quantity of land to sell. Stovall v. Vesely, 38 N.M. 415, 418-19, 34 P.2d 862, 864-65 (1934) (citing Field, 31 N.M. at 149-50, 241 P. at 1039).

“It seems to us that this language is in accord with our view that, under the Enabling Act, Constitu-tion, and statutes of New Mexico, the commissioner may sell or hold the state lands as his judg-ment and discretion may dictate, and that he may exercise ‘entire discretion as to the time of selling these lands and the extent to which they should be sold,’ and that no one has the right to compel the commissioner to sell the lands in its [sic] entirety or otherwise, and that, if he elects to sell the land otherwise than in its entirety, he is within his jurisdiction to do so. To hold otherwise would lead to an absurd result. * * * As we have seen, the commissioner was given almost unlimited power with respect to the public lands owned by the state ‘except as may be otherwise specifically provided by law.’ * * * Nowhere in the statute is any provision made for any su-pervisory control over the acts of the commissioner excepting in the case of contest concerning lands when an appeal may be taken from the decision of the commissioner to the district court. He is respon-sible alone to the electorate for any lack of proper business capacity or any misdoings in office.”

Id. at 419, 34 P.2d at 864-65 (quoting Field, 31 N.M. at 150-56, 241 P. at 1039-41).{106} The Field Court’s interpretation of the broad discretion enjoyed by the Commissioner is consistent with that of other jurisdictions. See Campana v. Arizona State Land Dep’t, 860 P.2d 1341, 1344 (Ariz. Ct. App. 1993) (land commissioner can establish the terms of sale that are in the trust’s best interests and has discretion as to how to structure the proposed sale); Pike v. State Bd. of Land Comm’rs, 113 P. 447, 454-55 (Idaho 1911) (commissioner did not abuse discretion in advertising for auction 24,000 acres of land without allowing bids for smaller parcels); Big Island Small Ranchers Ass’n v. State, 588 P.2d 430, 437 (Haw. 1978) (commissioner did not abuse his discretion by auctioning 42,000 acres of land at one time). In addi-

tion, when a power is granted by statute, everything necessary to carry out the power will be implied. Kennecott Copper Corp. v. Emp’t Sec. Comm’n, 78 N.M. 398, 402, 432 P.2d 109, 113 (1967). This Court has held that the general power granted to the Land Commissioner should not be limited by implication unless its exercise would interfere with, frustrate, or to some extent defeat the purpose for which the power was granted. Field, 31 N.M. at 154, 241 P. at 1041 (internal quotation marks and citation omitted).III. ALL PARTIES AND AMICI

AGREE THAT THE ENABLING ACT DOES NOT EXPRESSLY PRECLUDE LAND EXCHANG-ES

{107} Section 10 of the Enabling Act does impose upon the Commissioner certain non-discretionary obligations. The trust lands must be appraised at their true value, the money or other things of value obtained from the disposition of the lands must be used for specified purposes, and the consideration received must at least equal the true appraised value of the trust lands. Section 10 also imposes certain duties on the Commissioner with respect to the sale or lease of trust lands. The lands must be sold at a public auction to the highest and best bidder, with specific requirements for public notice of the auction. There must also be a true value appraisal of the lands and the lands cannot be sold for less than the appraised value or the minimum price fixed in the Enabling Act. 36 Stat. 557, § 10 (1910). However, none of the restrictions in the Enabling Act expressly or implicitly forbid the Commissioner or the State from exchanging land. Indeed, the parties to this case and Amici do not contend that the Enabling Act imposes a clear and indisput-able duty on the State not to exchange trust lands.{108} On the contrary, the Attorney General himself states that “[n]either the Enabling Act nor other authorities expressly provide for or prohibit the ac-ceptance of land as consideration in a sale of State Trust Lands.” In fact, the Attorney General issued two competing opinions on this subject, one in 1988 suggesting that a land exchange was not permissible, and a second one overruling that opinion in 1991, making it clear that land exchanges are permissible. In his 1991 opinion, the Attorney General stated “[t]he authority of the Commissioner to ‘dispose’ of public lands granted by the New Mexico Constitu-tion and, with restrictions, by the Enabling

Act includes the power to exchange public lands.” N.M. Att’y Gen. Op. 91-15 (1991), overruling N.M. Att’y Gen. Op. 88-35 (1988). The Attorney General conceded as much during oral argument. He was asked, “Are you saying that the Commissioner cannot exchange for land, period?” His response was an unequivocal “No, abso-lutely not.” Expanding on the discussion, the Attorney General stated “Our position is that there’s a limited, narrow authority to do land exchanges under existing law, and that authority exists in those cases where you can hold a meaningful public auction.” Regarding whether the current Attorney General agreed with the Attorney General who wrote the 1991 opinion, during oral argument the present Attorney General said that he “fundamentally agreed with the conclusions of that opinion.” The Attorney General also did not challenge the Com-missioner’s authority to accept public or private land in exchange for trust lands.{109} Amicus Curiae New Mexico School for the Blind, relying on the En-abling Act, the New Mexico Constitution, and New Mexico case law, argues that exchanges are clearly permitted. Amicus Curiae University of New Mexico, relying on the Enabling Act and standard rules of statutory construction, argues that the plain language of the Enabling Act authorizes land exchanges. Amicus Curiae Easter Seals and Union Pacific Railroad Company also conclude that the Enabling Act does not forbid land exchanges. Amicus Curiae New Mexico Wildlife Federation and the National Wildlife Federation do not argue that the Enabling Act clearly and indisput-ably forbids land exchanges; they simply urge this Court not to address the legality of land exchanges between the Commis-sioner and state or federal governmental entities. This suggested approach is not helpful because the Enabling Act does not distinguish between the disposition of trust lands to private or public parties. The only reference to the exchange of lands from the federal government is in the last paragraph of Section 10, where an exchange of state land for consideration of less than or equal to the appraised value of the state land is permissible. This would imply that other land exchanges are permissible so long as they are for consideration equal to or greater than the appraised value of the state land.IV. ENABLING ACT ALLOWS LAND EXCHANGES{110} However, there is other language in Section 10 that can reasonably be inter-


preted to allow land exchanges. The second paragraph of Section 10 provides, in part, that

[d]isposition of any of said lands, or of any money or thing of value directly or indirectly derived therefrom, for any object other than that for which such particular lands, or the lands from which such money or thing of value shall have been derived, were granted or confirmed, or in any manner contrary to the provisions of this act, shall be deemed a breach of trust.

(Emphasis added.) A “thing of value” derived from the disposition of land could quite clearly encompass land received in consideration for the disposition of the trust lands. The inclusion of money in the sentence also implies that consideration other than money may be accepted in the disposition of land.{111} This last point is corroborated in the fourth paragraph of Section 10, which reads in part: “All lands, leaseholds, timber and other products of land before being of-fered shall be appraised at their true value, and no sale or other disposal thereof shall be made for a consideration less than the value so ascertained.” Two observations can be made about this language. First, the language pertains to the “sale or other disposal” of lands, leaseholds, timber and other products. Second, the language refers to “consideration,” not just money. In Field, 31 N.M. at 144, 241 P. at 1037, this Court acknowledged the obvious--the expression “dispose of” is not synonymous with the word “sell.”

It will be noted under the provisions of our Constitution the lands may be held or disposed of. In the language of the Supreme Court of the United States . . . . The expression “to dispose of” is very broad, and signifies more than “to sell.” Selling is but one mode of disposing of property. . . . And again, it is said that, when a con-tract respecting property contains an agreement to be performed by the owner of it when he shall “dis-pose of” or “sell” it, it is obvious that the words “dispose of” are not synonymous with the word “sell”; and their meaning must be determined by considering the remainder of the contract.

Id. (internal quotation marks and citations omitted).

{112} Although the majority concludes that the phrase “disposal thereof” refers to “leasehold,” Maj. Op. ¶ 38, the seventh paragraph of Section 10 suggests that the Commissioner may do more than sell or lease the land. The seventh paragraph reads, in pertinent part: “Every sale, lease, con-veyance or contract of or concerning any of the lands hereby granted or confirmed, or the use thereof or the natural products thereof, not made in substantial conformity with the provisions of this act shall be null and void.” (Emphasis added.) If the Com-missioner were limited to selling or leasing trust property, then why would Congress refer to other conveyances or contracts con-cerning the trust properties? Why would the Legislature mandate the Commissioner to “make rules and regulations for the control, management, disposition, lease and sale of state lands” and authorize the Commis-sioner to “execute and authenticate for the state all deeds, leases, contracts or other instruments affecting such lands”? Section 19-1-2 (emphasis added). Why would the New Mexico Constitution specify that the Commissioner “shall select, locate, clas-sify and have the direction, control, care and disposition of all public lands”? N.M. Const. art. XIII, § 2. We do not interpret statutes in a way that renders language su-perfluous. Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, ¶ 29, 147 N.M. 523, 226 P.3d 622.V. THE COMMISSIONER’S

PUBLIC NOTICE AND PUBLIC AUCTION REQUIREMENTS FOR A LAND EXCHANGE SUB-STANTIALLY CONFORM WITH THE PROVISIONS OF THE ENABLING ACT

{113} I am of the opinion that the En-abling Act may be reasonably construed to allow land exchanges, provided that (1) the exchange is for land with a value at least equal to the value of the trust lands, and (2) the exchange is consistent with the best interests of the trust beneficiaries. I am also of the opinion that the exchange may take place without a public auction, since the third paragraph of Section 10 reads “lands shall not be sold or leased . . . to the highest and best bidder at a public auction,” not “lands shall not be sold, leased or otherwise disposed of . . . to the highest and best bidder at a public auction.” Nevertheless, the Commissioner’s rules pertaining to land exchanges closely follow the sale requirements in the Enabling Act. Specifically, the rules require an appraisal of the true value of the lands proposed for

exchange and public notice, and the public at large is invited to submit competing pro-posals. 19.2.21.8(C) NMAC; 19.2.21.9(D) NMAC. A competitive selection process for land exchanges is required. 19.2.21.2 NMAC.{114} The specific questions raised by the Attorney General in his petition for writ of mandamus are whether the subject land exchanges comply with the public auction requirement when the Commissioner re-quired bids composed of land with a value equal to the true fair market value of the trust lands and also required bidders to bid on all of the trust lands being offered. The questions raised by the Attorney General are answered by Field and Vesely. In those cases, we made it clear that “no one has the right to compel the commissioner to sell the lands in its [sic] entirety or otherwise, and that, if he elects to sell the land otherwise than in its entirety, he is within his jurisdic-tion to do so.” Field, 31 N.M. at 151, 241 P. at 1039; Stovall, 38 N.M. at 418-19, 34 P.2d at 864-65. Just as the Commissioner may decide when to sell or how much land to sell, he or she is the one to decide the terms and conditions that would be in the best interests of the trust beneficiaries.

[I]t may not be doubted that the Legislature of 1912, in creating the state land office, intended that the commissioner should exercise the power theretofore reposed in the commissioner of public lands to use his discretion in making deeds, contracts, and grants upon such terms and conditions as he may deem for the best interests of the state.

Field, 31 N.M. at 164, 241 P. at 1044.{115} In this case, the Commissioner of-fered a specified quantity of trust lands for land with a value at least equal to the true appraised value of the trust lands. However, a bidder was not precluded from offering a cash bonus. I fail to understand why we would yield to the Attorney General’s de-mand when it is the Land Commissioner who has the fiduciary duty regarding our trust lands. The Attorney General seeks to protect the best interests of the bidders, not the best interests of the trust beneficia-ries.{116} The majority raise concerns in addition to those expressed by the Attorney General. The majority conclude that it is not a public auction if the Commissioner has pre-public auction discussions with a bidder and the Commissioner is limited to accepting the greatest financial return when


deciding what is the “highest and best bid.” Instead of analyzing the Commissioner’s duties through the lens of his fiduciary responsibilities to the trust beneficiaries, the majority analyze his responsibilities as if he or she were simply an auctioneer.{117} When scrutinized through the lens of the Commissioner’s fiduciary obliga-tions, the Commissioner has discretion to enter into pre-auction discussions and to determine which is the highest and best bid. The Commissioner has established a detailed procedure for land exchanges in Rule 19.2.21.8(A) NMAC with the “best interests of the trust” the watchword. The Commissioner may have “preliminary informal discussions or other preliminary communications with potential exchange applicants prior to any exchange applica-tion or exchange proposal being submitted and prior to any publication soliciting ex-change proposals.” 19.2.21.9(A) NMAC. Only after an application is filed and “the commissioner determines that the proposed exchange appears to offer sufficient benefit to the trust and an advertisement soliciting proposals for the exchange has not already been published, the commissioner shall cause an advertisement soliciting further exchange proposals to be published.” 19.2.21.9(B)(6) NMAC. Within a rea-sonable time after the published closing date, the Commissioner “may select the proposal or proposals he determines are the highest and best, that is, the proposal or proposals that he believes will be most beneficial to the trust in accordance with the standards set forth in Subsections A and C of 19.2.21.8 NMAC above, and reject the rest.” 19.2.21.10(A) NMAC. He is not obligated to accept the proposal of the party who initially applied for the land exchange. Instead, the initial land exchange proposal is what informs the Commissioner regarding the minimum standards for the public auction. In the final analysis, the Commissioner may decide that it is not in the best interests of the trust beneficiaries to accept any bid, in which case he may reject all bids. 19.2.21.10(A) NMAC.{118} The majority has declared this procedure invalid. Maj. Op. ¶ 70. I am more persuaded by the following analysis of the Hawai’i Territorial Supreme Court in Fasi v. King, 41 Haw. 461, 1956 WL 10320 (1956).

So, in this case, a situation is presented where a prospective purchaser states to the commis-sioner that it desires to purchase a parcel of land which in location

and area is suited for a particular type of use that it is contemplat-ing and that it is willing to make improvements thereon of specified minimum cost. The commissioner determines that the proposal is in the interest of the development of the area in which the land is located. She makes a decision to offer the land for sale. The board of public lands agrees. The deci-sion is not that the sale be made to this prospective purchaser. The decision is that here is a proposal for improvement which is in the interest of the development of the area; here is a prospective purchaser who is willing to meet the minimum standard of improve-ment which is deemed desirable by the commissioner and the board; there may be other prospective purchasers who may be willing to exceed that standard; so let the Territory offer the land for sale with conditions to assure that at least that minimum standard will be met.

Id. at 468 (emphasis added). Pre-auction discussions will assist the Commissioner in determining the minimum standards that will help him or her develop new and profitable strategies that are consistent with enhancing the trust corpus and honoring the best interests of the trust beneficiaries. The public auction itself will permit the public to exceed the minimum standards, thus giv-ing rise to the highest and best bid.{119} In this case, the Commissioner asserts that the land exchange will increase the value of the trust corpus by $13,000,000 and make management of the land more efficient and economical. Advertising these minimum standards seems to me to be consistent with the Commissioner’s fiduciary obligations. Certainly other minimum standards will shrink the uni-verse of minimum bidders, yet we would not declare such minimum standards to be invalid. For example, in leasing lands for grazing, the Commissioner might insist on the bidder having specified minimum levels of competence, such as range management experience or education in order to ensure a level of competence that will help protect the land from overgrazing, soil erosion, damage to streams, and other damage. These management strategies are better left to the Commissioner’s discretion. His position is not apolitical. Because he is an elected official, the pressures of the general

public may very well influence his man-agement strategies. However, we should not interfere with his discretion when the exercise of that discretion is proven to be in the trust beneficiaries’ best interests.{120} With respect to the highest and best bid, immediate revenue is not the sole consideration in determining the trust beneficiaries’ best interests. Campana, 860 P.2d at 1344. The requirement of a highest and best bid is not for the bidders’ benefit; it is for the benefit of the trust beneficiaries. Bancamerica-Blair Corp. v. State Highway Comm’n, 95 S.W.2d 1068, 1070-71 (Ky. Ct. App. 1936), superseded by statute on other grounds as stated in Pendleton Bros. Vending, Inc. v. Commonwealth Finance & Admin. Cabinet, 758 S.W.2d 24 (Ky. 1988). However, because the consideration for the land is not limited to money, the Commis-sioner must exercise judgment to determine whether the bids would advance the inter-ests of the trust and its beneficiaries. See Brown v. City of Phoenix, 272 P.2d 358, 363-64 (Ariz. 1954). As minimum security to the trust beneficiaries, the Enabling Act requires that the trust lands be appraised at their true value, and the consideration received must at least equal that appraised value. Enabling Act § 10. If in addition to obtaining consideration with at least equal the true appraised value of the trust lands the Commissioner is able to reduce the expense of land management and prevent the destruction of the trust property, one cannot contend that the Commissioner has breached his fiduciary duty. In addition, the concerns expressed by Congress when enacting the Enabling Act will have been allayed, since the land will not have been disposed of for less than its fair value.VI. VOTER REJECTION OF A

CONSTITUTIONAL AMEND-MENT DOES NOT DEFINE THE STATUS QUO

{121} The majority finds significant to its analysis the 1990 voter rejection of an amendment to the Enabling Act. Maj. Op. ¶ 9. The proposed amendment sought to “clarify the authority of the Commissioner of Public Lands to exchange lands under his control.” The fact that the electorate rejected the amendment does not define the status quo; we must still interpret existing law. Law is not made by defeating bills or constitutional amendments. State ex rel Udall v. Pub. Employees Ret. Bd., 118 N.M. 507, 512, 882 P.2d 548, 553 (Ct. App. 1994), rev’d on other grounds, 120 N.M. 786, 907 P.2d 190 (1995). Rejection of leg-islation does not offer any insight into the


meaning of existing law. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 381 n.11 (1969) (“unsuccessful attempts at legislation are not the best of guides to legislative intent”); Ingersoll v. Palmer, 743 P.2d 1299, 1318 (Cal. 1987) (“We can rarely determine from the failure of the Legislature to pass a par-ticular bill what the intent of the Legislature is with respect to existing law.”); State ex rel. Douglas v. Beermann, 347 N.W.2d 297, 305 (Neb. 1984). I am not persuaded that the popular vote is significant to the analysis in this case.{122} History teaches us that the rejec-tion of an amendment does not define the limits of the law. For example, the Child Labor Constitutional Amendment, which would have authorized Congress to limit, regulate, and prohibit the labor of persons under eighteen years of age, was never rati-fied. Yet the Fair Labor Standards Act has provisions designed to protect the educa-

tional opportunities of youth, prohibit their employment in jobs that are detrimental to their health and safety, and restrict the hours that youth under sixteen years of age can work. Fair Labor Standards Act of 1938, 29 U.S.C. § 212 (1974). The constitutionality of the Fair Labor Standards Act has been upheld. United States v. Darby, 312 U.S. 100 (1941). The Equal Rights Amend-ment, which provided that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” was never ratified. Yet the Civil Rights Act of 1964 forbids discrimination on account of gender.{123} Finally, if indeed the 1990 popular vote rejecting amendment of the Enabling Act is as significant as the majority sug-gests, then why has the majority declined to follow the will of the people during that same election when they declined to validate, ratify, and confirm all exchanges

completed by the Land Commissioner be-fore January 1, 1990? If I were persuaded that the Commissioner has a clear and indisputable duty not to engage in land ex-changes, I would enforce the Enabling Act as written and declare the land exchanges void. I cannot agree that this Court has the authority to apply its holding prospectively when the Enabling Act itself provides that “[e]very sale, lease, conveyance or contract of or concerning any of the lands hereby granted or confirmed . . . not made in sub-stantial conformity with the provisions of this act shall be null and void.” Enabling Act § 10.{124} For the foregoing reasons, I re-spectfully dissent. EDWARD L. CHÁVEZ,

Justice

I CONCUR:CHARLES W. DANIELS, Chief Justice


Certiorari Denied, January 7, 2011, No. 32,678


Opinion Number: 2011-NMCA-009

Topic Index:Appeal and Error: State’s Right to AppealConstitutional Law: Separation of Powers

Courts: Inherent PowersCriminal Procedure: Probation; Revocation of Probation;

and Time Limitations

STATE OF NEW MEXICO,Plaintiff-Appellant,

versusBRIAN BOBBY MONTOYA,

Defendant-Appellee.No. 28,618 (filed: October 12, 2010)

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTYABIGAIL P. ARAGON, District Judge

opinion

JaMes J. Wechsler, Judge

{1} The district court dismissed the State of New Mexico’s motion to revoke the pro-bation of Defendant Brian Bobby Montoya for failure to meet the time limits of Rule 5-805 NMRA. The State appeals, asserting that it has the constitutional right to do so. It argues (1) that the district court lacked jurisdiction to dismiss based on Rule 5-805 because Rule 5-805 unconstitutionally in-fringes upon the powers of the Legislature in violation of the separation of powers doctrine and (2) that the district court erred in its interpretation of Rule 5-805 by dis-missing when the adjudicatory hearing was held within sixty days of the initial hearing. We hold that the State has a constitutional right to bring this appeal because it argues that the district court’s dismissal is contrary to law, and the dismissal affects the State’s strong interest in enforcing the laws of New Mexico. We nevertheless dismiss the State’s appeal because Rule 5-805 provides

GARY K. KING Attorney General

Santa Fe, New MexicoM. VICTORIA WILSON

Assistant Attorney GeneralAlbuquerque, New Mexico

for Appellant

NANCY L. SIMMONSLAW OFFICES OF

NANCY L. SIMMONS, P.CAlbuquerque, New Mexico

for Appellee

procedural time frames that are compatible with the separation of the powers of the legislative and judicial branches of govern-ment, and, even though the adjudicatory hearing was held within sixty days of the initial hearing, it was not held within the time frames contemplated by Rule 5-805 in the aggregate, requiring dismissal under Rule 5-805(L).BACKGROUND{2} On September 26, 2007, the Adult Probation and Parole Office provided a probation violation report to the district court recommending that Defendant’s probation be revoked. The district court acted on the report on October 3, 2007, requesting the State to file a motion to revoke probation and ordering the issuance of an arrest warrant. Although the arrest warrant was not issued until November 19, 2007, when the State filed a motion to revoke probation, Defendant was arrested without a warrant on October 12, 2007. The State filed a request for a hearing on January 4, 2008, and the district court held an initial hearing on January 28, 2008. It

held the adjudicatory hearing on February 25, 2008.{3} Defendant filed a motion to dismiss the motion to revoke probation, and, at the adjudicatory hearing, Defendant argued for dismissal because the State had failed to comply with the time frames of Rule 5-805. Defendant contended that the requirements of Rule 5-805 require dismissal if the adju-dicatory hearing is not held within 100 days of the arrest for the probation violation. The State countered that the purpose of the rule is to avoid delay when a proba-tioner is in custody and that the dismissal provision only applied if the adjudicatory hearing is not held within sixty days of the initial hearing. Rule 5-805(L). The district court ruled that arrest, not custody, is the operative feature of the rule and that, even though the adjudicatory hearing was held within sixty days of the initial hearing, the time frames of the rule were violated in the aggregate. It dismissed the motion to revoke probation.CONSTITUTIONAL RIGHT TO APPEAL{4} As an initial matter of jurisdiction, we address the right of the State to appeal from the dismissal of its motion to revoke probation. In its docketing statement, the State asserted a right to appeal by virtue of NMSA 1978, Section 39-3-3(B)(1) (1972). Section 39-3-3(B) grants the state the right to appeal from “a decision, judgment or order dismissing a complaint, indictment or information” in whole or in part, and from a district court order “suppressing or excluding evidence or requiring the return of seized property” upon certification by the district attorney of certain prerequisites. We thus held in State v. Grossetete, 2008-NMCA-088, ¶¶ 12-13, 144 N.M. 346, 187 P.3d 692, that “the plain and ordinary mean-ing of the language of Section 39-3-3” does not provide the state with a right to appeal from the dismissal of a probation violation proceeding.{5} In our amended calendar notice as-signing this case to the general calendar, we noted our decision in Grossetete and in-formed the parties that we would determine the State’s right to appeal after briefing. In its brief in chief, the State changes its po-sition and contends that its right to appeal stems from the New Mexico Constitution, not from Section 39-3-3. Article VI, Section 2 of the New Mexico Constitution grants the “absolute right to one appeal” to “an aggrieved party” in a lawsuit. The state’s constitutional right to appeal is independent of its statutory authority. State v. Santil-


lanes, 96 N.M. 482, 486, 632 P.2d 359, 363 (Ct. App. 1980) (“The [L]egislature, by statute, may not diminish a right expressly provided by the constitution[.]”), rev’d in part on other grounds, 96 N.M. 477, 632 P.2d 354 (1981). Our appellate case law has long recognized that the state may appeal an adverse district court decision that is contrary to law. State v. Heinsen, 2005-NMSC-035, ¶ 9, 138 N.M. 441, 121 P.3d 1040; Santillanes, 96 N.M. at 486, 632 P.2d at 363; State v. Doe, 95 N.M. 90, 92, 619 P.2d 194, 196 (Ct. App. 1980), superseded by statute on other grounds as stated in State v. Michael R., 107 N.M. 794, 795, 765 P.2d 767, 768 (Ct. App. 1988). Our juris-diction depends on the merits of the state’s argument on appeal; if, after examining the state’s argument, we determine that the district court’s disposition is not contrary to law, we will dismiss the appeal. State v. Horton, 2008-NMCA-061, ¶¶ 1, 22, 144 N.M. 71, 183 P.3d 956.{6} The State argues in this appeal that the district court’s decision applying Rule 5-805 is contrary to law. Defendant differs in his interpretation. He contends that the district court acts solely within its discre-tion in ruling upon a probation violation allegation under NMSA 1978, Section 31-21-15(B) (1989). Indeed, in Grossetete, we rejected the state’s claim of a constitutional right to appeal because the district court acted within its discretion in denying and dismissing the probation violation petition and did not act contrary to law. 2008-NMCA-088, ¶ 10. However, in Grossetete, the district court addressed the merits of the petition and, acting within its discre-tion, denied it. Id. ¶¶ 7-10. In this appeal, the district court premised its dismissal on Rule 5-805 without addressing the merits. The district court acted as a matter of law. We will thus proceed to address the merits of the State’s argument to determine if the district court’s disposition is contrary to law, giving the State the right to appeal to this Court. Horton, 2008-NMCA-061, ¶¶ 1, 22.APPLICATION OF RULE 5-805{7} Rule 5-805 sets out the procedures when “it appears that the probationer may have violated the conditions of probation.” Rule 5-805(A). It provides a series of time frames for actions to be taken. In relevant part, it states:

E. Filing of report. If there is a recommendation that probation be revoked, within five (5) days of the arrest of probationer the proba-tion office shall submit a written violation or a summary report to

the district attorney and the court describing the essential facts of each violation. . . .

F. District attorney duty. With-in five (5) days of receiving the probation violation or a summary report, the district attorney shall either file a motion to revoke probation setting forth each of the alleged violations or file a notice of intent not to prosecute the al-leged violations.

G. Initial hearing. An initial hearing on a motion to revoke probation shall be commenced within thirty (30) days after the latest of the following events: (1) the date of the filing of a motion to revoke probation; . . . . (5) the date of arrest or sur-render of a probationer in this state based on a bench warrant issued for failing to report.

H. Adjudicatory hearing. The adjudicatory hearing shall com-mence no later than sixty (60) days after the initial hearing is conducted.

. . . . J. Waiver of time limits. The

probationer may waive the time limits for commencement of the adjudicatory hearing.

. . . . L. Dismissal. If an adjudicatory

hearing on the alleged probation violation is not held within the time limits prescribed by this rule, the motion to revoke probation shall be dismissed with prejudice.

Rule 5-805.{8} In dismissing the State’s motion to revoke probation, the district court stated that although the adjudicatory hearing was held within sixty days of the initial hearing, Rule 5-805 was violated in the aggregate. We interpret a Supreme Court rule as a question of law subject to de novo review. State v. Gutierrez, 2006-NMCA-090, ¶ 7, 140 N.M. 157, 140 P.3d 1106. We look to the same rules of construction as if we were interpreting a statute. Id. Our function is to fulfill the intent of the rule. H-B-S P’ship v. Aircoa Hospitality Servs., Inc., 2008-NMCA-013, ¶ 10, 143 N.M. 404, 176 P.3d 1136 (filed 2007). In doing so, we will “give effect to the plain meaning of [the] rule if its language is clear and unambiguous.” Id. We will read all parts of the rule together to determine its intent. Id.

{9} The State argues that the district court erred in its interpretation because it did not give effect to the plain meaning of the rule and did not take into account the rule’s intent to protect against unreasonably lengthy probation revocation proceedings when the probationer remains in custody for the violation. We address the State’s arguments in turn.{10} As to the plain meaning of the rule, we agree with the State that the rule as-signs time limits to each of the actions that are part of the probation revocation process except for arrest. Subsection L is the only provision in Rule 5-805 that ad-dresses sanctions. It imposes the sanction of dismissal and only refers to the failure to hold an adjudicatory hearing. The State construes this sole reference to mean that the rule does not contemplate Subsection L to apply to any other time limit besides the requirement that the adjudicatory hear-ing be held within sixty days of the initial hearing set forth in Subsection H. Accord-ing to the State, “[i]f the Supreme Court had intended to include the time limits for other stages of a probation revocation pro-ceeding, the Court would have expressly named those stages.” However, the plain meaning of the rule is not as clear as the State contends. {11} Although Subsection L only mentions the failure to timely hold the adjudicatory hearing as the trigger for dismissal, we do not read it to be limited to the time limit to hold an adjudicatory hearing after the initial hearing imposed by Subsection H. First, by its own language, Subsection L requires dismissal if an adjudicatory hearing “is not held within the time limits prescribed by this rule.” Rule 5-805(L) (emphasis added). Because of the use of the plural, we do not construe Subsection L to be restricted to a single time limit and therefore do not read it to refer only to the time limit of Subsection H. See H-B-S P’ship, 2008-NMCA-013, ¶ 10 (reiterating that we read statutes as a whole and harmoniously). Second, Subsec-tion L is not the rule’s only plural reference to the time limits to hold the adjudicatory hearing. Subsection J addresses the waiver of time limits and permits the probationer to “waive the time limits for commencement of the adjudicatory hearing.” Rule 5-805(J) (emphasis added). We do not perceive that the Supreme Court intended that the probationer could only waive the time limit between the initial hearing and the adjudicatory hearing and not any other time limit. See H-B-S P’ship, 2008-NMCA-013, ¶ 10 (stating that we seek to “give effect to


the Supreme Court’s intent” in interpreting rules).{12} When we read the language of Sub-section L together with the other provisions of the rule, we understand the intent of the rule to require dismissal if the adjudicatory hearing is not held within a timely manner based on the time limits of the rule. The rule focuses on the adjudicatory hearing because it is the culmination of the process and the point at which the district court will decide whether to revoke probation. We thus do not agree with the State that the plain meaning of the rule requires a differ-ent interpretation of the rule than given by the district court.{13} As to the intent of the rule, the State argues that the Supreme Court intended the rule to address the concern of the Legisla-ture, as reflected in NMSA 1978, Section 31-11-1(E) (1988) (providing eligibility for bail if a probation revocation hearing is not brought to court within sixty days), and of this Court, as stated in State v. Chavez, 102 N.M. 279, 281, 694 P.2d 927, 929 (Ct. App. 1985) (stating that probation revoca-tion proceedings “must be held within a reasonable time after probation authori-ties become aware of an alleged violation of [a] defendant’s probation or after the probationer is taken into custody”). The State reasons that the focus of Rule 5-805 is therefore probationers who are in custody and that the “drastic remedy of dismissal is completely out of proportion to the potential prejudice to a probationer who is not detained on the probation violation charges.”{14} Although Section 31-11-1(E) and Chavez were in place when the Supreme Court adopted Rule 5-805, there is no in-dication in the rule that the Court intended the rule to follow these authorities without deviation. From the plain language of the rule, setting forth specific time limits and providing for dismissal as a sanction, even if only for violation of Subsection H as the State urges, the Supreme Court charted a more specific course than had been estab-lished. Further, nothing in the rule indicates that dismissal applies only if a probationer is in custody. Subsection L does not re-quire it. Indeed, Subsection D specifically addresses conditions of release pending adjudication of the probation violation that can obviate the problems contemplated by Section 31-11-1(E) and Chavez. Rule 5-805(D). Rather, we view the purpose of the rule to establish time frames that require the adjudication of the probation revocation within a reasonable time with the sanction

of dismissal as a means of enforcement of the rule.{15} The time limits of Rule 5-805 were not met in this case. Defendant was ini-tially arrested on the probation violation on September 11, 2007, but he left the hospital where he was taken and could not be located until October 12, 2007, when he was again arrested and placed into custody. The Adult Probation and Parole Office submitted a report to the district court on September 26, 2007, recommending that Defendant’s pro-bation be revoked. The district attorney did not file a motion to revoke probation until November 19, 2007. As the State concedes, the district attorney exceeded the five-day requirement of Subsection F. The initial hearing was not held until January 28, 2008, exceeding the thirty-day time limit from the filing of the motion to revoke probation of Subsection G.{16} In dismissing the motion to revoke probation, the district court concluded that the time limits of Rule 5-805 were violated in the aggregate. Indeed, the time limits of the subsections of the rule, beginning with the recommendation to revoke probation, amount to one hundred days. As a result, even though the district court would have met the sixty-day time limit to hold the adjudicatory hearing of Subsection H on February 25, 2007, if it had not dismissed the proceeding, the aggregate time limit from Defendant’s arrest, even calculated from October 12, 2007, exceeded the ag-gregate time limit contemplated by Rule 5-805. Because the time limits of Rule 5-805 had expired before the district court had the opportunity to hold the adjudicatory hearing, Subsection L required the district court to dismiss the proceedings.CONSTITUTIONALITY OF RULE 5-805{17} The State raises the constitutionality of Rule 5-805 as a matter of the jurisdiction of the district court. It contends that the rule infringes upon the Legislature’s exclusive role in establishing the substantive law and thereby offends the constitutional provision for the separation of powers. N.M. Const. art. III, § 1.{18} Under the New Mexico Constitution, the roles of the Supreme Court and the Legislature are both separate and overlap-ping. The Legislature has the responsibility to enact the laws of the state. N.M. Const. art. IV, § 1. With respect to the procedure of the courts, the New Mexico Constitution vests the Supreme Court with “superintend-ing control over all inferior courts.” N.M. Const. art VI, § 3. The Supreme Court

has historically enacted rules to fulfill this responsibility. See State v. Santiago, 2010-NMSC-018, ¶ 13, 148 N.M. 144, 231 P.3d 600. It has nevertheless acknowledged that, although it “has ultimate rule-making authority,” such authority is not exclusive such that the Legislature may enact laws concerning rules and practice in the courts unless the laws conflict with an existing court rule, the constitution, or the essential functions of the Supreme Court. Albuquer-que Rape Crisis Ctr. v. Blackmer, 2005-NMSC-032, ¶ 5, 138 N.M. 398, 120 P.3d 820. The Legislature has stated the respec-tive responsibilities of the two branches of government as follows:

The [S]upreme [C]ourt of New Mexico shall, by rules promul-gated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts of New Mexico for the purpose of simplifying and pro-moting the speedy determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify the substantive rights of any litigant.

NMSA 1978, § 38-1-1(A) (1966).{19} In Albuquerque Rape Crisis Center, our Supreme Court expressed its approach to co-existing judicial and legislative enact-ments concerning practice and procedure by first determining whether they are suf-ficiently consistent to give effect to both. 2005-NMSC-032, ¶ 11. Only in the event of inconsistency would the legislative procedure fail. Id.; cf. Grassie v. Roswell Hosp. Corp., 2008-NMCA-076, ¶¶ 10-12, 144 N.M. 241, 185 P.3d 1091 (applying Albuquerque Rape Crisis Center analy-sis and concluding that statute and rule pertaining to amount of supersedeas bond did not irreconcilably conflict). We take a similar approach to reach harmony between a statute and a rule if the statute creates a substantive right, see In re Daniel H., 2003-NMCA-063, ¶ 17, 133 N.M. 630, 68 P.3d 176, although if the two are inconsistent, the legislative enactment would prevail. Sw. Cmty. Health Servs. v. Smith, 107 N.M. 196, 199, 755 P.2d 40, 43 (1988) (stating that our Supreme Court “should not invalidate substantive policy choices made by the [L]egislature under the constitutional exercise of its police powers” and that “it is the func-tion of [the Supreme] Court to promulgate procedural rules” (emphasis added)).{20} The State argues that Rule 5-805(H), by requiring dismissal for the failure to comply with time limits, creates a


substantive provision that abrogates the legislatively-established right of the State to pursue a probation revocation. “The distinction between a procedural and a sub-stantive provision is frequently difficult to draw.” In re Daniel H., 2003-NMCA-063, ¶ 18. We have described substantive law as “creating, defining, and regulating rights, duties, and obligations,” and procedural provisions as “mechanisms designed to accomplish a just determination of rights and duties granted by substantive law.” Id. (internal quotation marks and citation omit-ted). “Procedural provisions do not abridge, enlarge or modify the substantive rights of any litigant.” Id. (internal quotation marks and citation omitted).{21} We perceive the statutes at issue in this case to be both substantive and pro-cedural. Substantively, in the case of an alleged probation violation, Section 31-21-15(A), (B) gives the court the authority to modify a probationer’s sentence, gives the state the right to arrest the probationer, and gives the probationer the right to a hearing. State v. Jackson, 2010-NMSC-032, ¶ 19, 148 N.M. 452, 237 P.3d 754 (arrest proba-tioner); State v. Leslie, 2004-NMCA-106, ¶ 8, 136 N.M. 244, 96 P.3d 805 (right to a hearing); State v. Freed, 1996-NMCA-044, ¶ 14, 121 N.M. 569, 915 P.2d 325 (modify sentence). Section 31-11-1(E) provides for bail eligibility under certain circumstances. See State v. House, 1996-NMCA-052, ¶ 6, 121 N.M. 784, 918 P.2d 370 (stating that the right to bail under Section 31-11-1(C) is a substantive right). Procedurally, Section 31-21-15(A) provides for the issuance of an arrest warrant and notice to the probationer. Section 31-11-1(E) provides the time frame of sixty days for a hearing to be held for an arrested probationer.{22} Rule 5-805 also has both substantive and procedural aspects. It provides for bail, and, to this extent, it defines rights and is substantive. To the extent that it sets time limits for aspects of the proceed-

ing, it is carrying out the determination of substantive rights and is procedural. See In re Daniel H., 2003-NMCA-063, ¶ 18 (stating that “mechanisms designed to accomplish a just determination of rights and duties granted by substantive law” are procedural provisions (internal quotation marks and citation omitted)). The particular question before us is whether Subsection H, by requiring dismissal if the time limits to hold an adjudicatory hearing are not met, abridges the State’s substantive rights cre-ated by statutes. {23} Although Subsection H can be viewed as limiting the absolute right granted by Section 31-21-15, the Supreme Court has the clear right to establish procedures to prevent delay in court proceedings. See State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 624, 904 P.2d 1044, 1049 (1995) (stat-ing that our Supreme Court exercises its power of superintending control in excep-tional circumstances, including preventing costly delays). Such right is implicit in its constitutional authority of superintending control of the inferior courts and has been recognized by the Legislature. See N.M. Const. art. VI, § 3; § 38-1-1 (“The [S]upreme [C]ourt of New Mexico shall, by rules promulgated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts of New Mexico for the purpose of simplify-ing and promoting the speedy determina-tion of litigation upon its merits.”). To be sure, Section 38-1-1(A) also provides that Supreme Court rules “shall not abridge, enlarge or modify the substantive rights of any litigant.” However, we do not perceive that, by ensuring the speedy resolution of substantive rights in court proceedings, Subsection H abridges substantive rights; it merely avoids delay in the exercise of such rights. See Rule 5-805(H).{24} We do not agree with the State’s anal-ogy to statutes of limitation that are enacted by the Legislature and create substantive

rights. Statutes of limitation affect the time in which a litigant may bring an action in court to enforce substantive rights. They are different from rules of the Supreme Court that affect procedure in the courts once a proceeding has been initiated in court. Such rules are the hallmark of the Supreme Court’s constitutional authority to control procedure in the courts of the state.{25} We thus read the statutes and rule in question consistently. Both Rule 5-805 and Section 31-11-1(E) permit the probationer to be released on bail. The difference be-tween them concerns the manner in which they treat proceedings that do not timely reach conclusion. As we have discussed, Rule 5-805 requires dismissal if the time limits for the adjudicatory hearing are not met. Section 31-11-1(E) states only that a probationer shall be eligible for bail if the final hearing is not held within sixty days of arrest; it is silent as to dismissal. Although Section 31-11-1(E) provides a different solution to the failure to resolve a probation revocation proceeding in a timely manner, it is limited to the availability of bail to a probationer who is still in custody. Section 31-11-1(E) does not address, as does Rule 5-805(H), the speedy resolution of all pro-bation revocation proceedings. Rule 5-805 thus provides the procedural framework to ensure the speedy resolution of the legisla-tively granted substantive rights. It does not infringe upon substantive rights granted by the Legislature. There is no separation of powers problem in this case.CONCLUSION{26} The district court did not err in dismissing the State’s motion to revoke Defendant’s probation. Because the order was not contrary to law, we dismiss the State’s appeal.{27} IT IS SO ORDERED. JAMES J. WECHSLER, Judge

WE CONCUR:MICHAEL D. BUSTAMANTE, JudgeRODERICK T. KENNEDY, Judge


Certiorari Denied, January 3, 2011, No. 32,718


Opinion Number: 2011-NMCA-010

Topic Index:Civil Procedure: Summary Judgment

Property: Covenants; Deed; Notice; Restrictive Covenants; and Subdivisions

ROBERT DUNNING, MICHELLE DUNNING, DON MARVEL, BARBARA HAU, RICHARD GOLDMAN, USUN GOLDMAN, LARRY WALL,

BETSY WALL, JOHN KERN, LOUISE KERN,JOHN CULLINAN AND THE JEANNE C. COMPTON TRUST,

Plaintiffs-Appellants,versus

NANCY BUENDING and PENOBSCOT DEVELOPMENT CO., a New Mexico corporation,

Defendants-Appellees.No. 28,836 (filed: October 27, 2010)

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTYSAM B. SANCHEz, District Judge

opinion

cynthia a. fry, chief Judge

{1} Plaintiffs, the owners of nine lots in the Eastern Nighthawk Trail area of a subdivision near Taos, New Mexico, appeal the district court’s entry of summary judgment in favor of Defendant Nancy Buending, the owner of one lot in the same area. Plaintiffs filed suit against Defendant for declaratory judgment, seeking enforcement of a restriction allegedly prohibiting Defendant from subdividing her property. Defendant filed a motion for sum-mary judgment, arguing that the restriction was unenforceable because Defendant had no notice of the existence of a common develop-ment scheme at the time she purchased her property. The district court granted summary judgment in Defendant’s favor, and Plaintiffs appeal. We reverse.BACKGROUND{2} In 1988, Edmund Lary formed two corporations, Penobscot Development Com-pany (Penobscot) and Cumberland Land Corporation (Cumberland), to own, divide, and sell a 123-acre tract of property in Taos County, New Mexico. Lary was the president

JACOB D. CALDWELLNATELSON LAW FIRM

Taos, New Mexicofor Appellants

CAROL A. NEELLEYCAROL A. NEELLEY, P.C.

Taos, New Mexicofor Appellee

and owner of both corporations. Through the two companies, Lary acquired the majority of the 123-acre tract. Within the 123 acres was a 37.875-acre tract on the eastern side of Nighthawk Trail, which the parties refer to as the Eastern Nighthawk Trail tract (the Tract). Individually and through his two corporations, Lary then divided the 37.875 acres into thirteen individual lots. Of the thirteen lots, Penobscot and Lary each owned four and Cumberland owned five. The entire 123-acre tract was governed by a declaration of covenants (the Restriction) recorded on July 15, 1988, that, among other things, provided that “no lot may be subdivided into less than one acre.”{3} In 1989, Defendant purchased a 4.2-acre lot in the Tract from Penobscot. Accord-ing to Defendant, when she entered into the purchase agreement for her property, the real estate agent told her that she would be able to subdivide her 4.2-acre lot into one-acre parcels, and she received written restrictions that reflected her ability to subdivide. After closing, however, Defendant received a deed to the property in the mail that contained a restriction prohibiting all subdivision. The warranty deed provided to Defendant stated that it was “[s]ubject to patent reservations,

restrictions, easements, mineral rights, and water rights of record, if any, except that the restrictions attached hereto as Exhibit B are substituted for those of record.” Contrary to the recorded Restriction, the restrictions attached to the deed provided that “[n]o lot may be subdivided.” According to Defendant, she called her real estate agent to express her dismay and was told that the restriction in the deed “meant [that she] would be able to sub-divide if [she] lived on the property for more than three years.” Defendant also attested that she visited the property three times prior to purchasing it and that none of the surround-ing land had any improvements by which she could have inferred that there was a plan for restriction other than the one-acre subdivision limitation contained in the Restriction.{4} According to the affidavit of one of Plaintiffs’ witnesses, Lary had expressed a de-sire to prohibit subdivision in the Tract because he wanted to limit the density of construction in that area due to the enhanced desirability of those lots. Of the thirteen lots in the Tract, two comprised less than two acres each and thus, they could not be subdivided further due to the one-acre subdivision limitation contained in the Restriction. The deeds to three lots sold in 1989, including Defendant’s, contained the restriction that expressly prohibited all subdi-vision. The remaining lots were all sold after Lary’s death in 1990, and the deeds to those lots did not contain express restrictions against subdivision. However, subsequent purchasers of lots in the Tract were informed prior to their purchases that they could not subdivide their properties and received copies of restrictions that reflected the prohibition on all subdivi-sion.{5} In 2000, Defendant sought and obtained a “corrected” warranty deed from Penobscot that purported to revert the restrictions im-posed by Defendant’s initial deed back to the Restriction of record, thereby allowing Defendant to subdivide her property into separate parcels as long as each parcel was at least one acre. Plaintiffs filed suit seeking either to invalidate the corrected warranty deed or to reform the corrected deed and obtain a judicial declaration that Defendant is bound by the prohibition against subdivision contained in her initial deed. Plaintiffs alleged that the restriction in Defendant’s initial deed was intended to benefit the properties adjoining and surrounding her lot and that the Plaintiffs relied on the existence of the restrictions when they purchased property in the area. Plaintiffs contended they were told that this restriction applied to all of the lots in the Tract and pro-hibited any subdivision.{6} Defendant filed a motion for summary judgment, arguing that Plaintiffs were seek-


ing to enforce an implied restriction that existed solely by virtue of a common plan of development and that she did not have actual or constructive notice of the plan. Defendant contended that the only restriction in place at the time she purchased her property was the Restriction’s prohibition on dividing lots into parcels smaller than one acre and that there were no facts or circumstances putting Defendant on notice that there was a common plan to completely prohibit subdivision. In response, Plaintiffs argued that they were seek-ing to enforce the express covenant attached to Defendant’s deed, not an implied covenant stemming from a common plan. Following a hearing, the district court concluded that there were no issues of material fact and that Defen-dant was entitled to a judgment as a matter of law. The court entered summary judgment in favor of Defendant, and this appeal ensued.DISCUSSIONStandard of Review{7} We review a district court’s decision to grant summary judgment de novo. Maestas v. Zager, 2007-NMSC-003, ¶ 8, 141 N.M. 154, 152 P.3d 141. In doing so, we view the facts in the light most favorable to the non-moving party and indulge all reasonable inferences in support of a trial on the merits. Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 12, 135 N.M. 539, 91 P.3d 58. Summary judgment is appropriate when, viewing the facts in the light most favorable to the non-moving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id.The Parties’ Arguments{8} Defendant argues that summary judg-ment was appropriate because Plaintiffs failed to show that there was a common development plan in existence at the time she purchased her property that would have put her on notice of the restriction prohibiting subdivision. Plaintiffs argue that summary judgment was improper because Defendant failed to make a prima facie case for summary judgment. Specifically, Plaintiffs contend that there are genuine issues of material fact regarding whether the restriction in Defendant’s deed was intended to run with the land such that they are entitled to enforce it. Plaintiffs argue that the fact that Defendant was not aware of any neighborhood characteristics evidencing a common scheme or plan is irrelevant because Defendant had actual notice of the restriction on her property.Servitudes versus Covenants{9} As one commentator has aptly noted, “[t]he law of easements, real covenants, and equitable servitudes is the most complex and archaic body of American property law remaining in the twentieth century.” Susan F.

French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. Cal. L. Rev. 1261, 1261 (1982). Because of this complexity, we begin our analysis of Plaintiffs’ appeal by attempting to clarify the law of restrictive covenants and equitable servitudes in New Mexico. Plaintiffs sued Defendant to enforce the covenant contained in Defendant’s deed. The law relied on by both parties appears to use the terms “equitable servitude” and “restrictive covenant” interchangeably. See, e.g., Lex Pro Corp. v. Snyder Enters., Inc., 100 N.M. 389, 390-91, 671 P.2d 637, 638-39 (1983) (using the test for an equitable servitude to determine when “a restrictive covenant [runs] in equity” and holding that the language created a restrictive covenant binding on the defendant); Sharts v. Walters, 107 N.M. 414, 416, 759 P.2d 201, 203 (Ct. App. 1988) (noting that the doctrine of implied reciprocal nega-tive servitudes is also referred to as implied restrictive covenants or equitable servitudes).{10} Fortunately, the Restatement (Third) of Property: Servitudes recently clarified that “[h]istorically, there were significant differ-ences between real covenants and equitable servitudes” because the former were enforce-able only at law and the latter only in equity. Restatement (Third) of Property: Servitudes § 1.4, cmt. a (2000). The Restatement explains that under modern law, “the differences be-tween the two were gradually reduced to the point where they made little difference in the world of land development” and concludes that “[b]ecause continued use of the terms ‘real covenant’ and ‘equitable servitude’ perpetu-ates the idea that there is a difference between covenants at law and in equity,” those terms should be abandoned in favor of the more accurate term, “covenant running with [the] land.” Id. (internal quotation marks omitted). Because we see no practical distinction in our case law between equitable servitudes and restrictive covenants that would necessitate the continued use of separate terms, see Lex Pro, 100 N.M. at 390-91, 671 P.2d at 638-39, we adopt the reasoning of the Restatement and conclude that the term “covenant running with [the] land” is a more accurate description of these restrictions on the use of property. Consequently, this appeal centers on whether the restrictions attached to Defendant’s initial deed created an enforceable covenant running with the land.{11} New Mexico case law sets out the fol-lowing requirements to establish an enforce-able covenant running with the land: “(1) the covenant must touch and concern the land[,] (2) the original covenanting parties must intend the covenant to run [with the land,] and (3) the successor to the burden must have notice of the covenant.” Id. at 391, 671

P.2d at 639. The Restatement appears to have abandoned the first and third requirements for a variety of reasons. See Restatement (Third) of Property: Servitudes § 1.4, cmt. a (noting that “[t]he notice requirement of equity was never significant in American law because constructive notice given by a recorded instru-ment met the requirement, and the recording acts protected bona fide purchasers without notice”); Restatement (Third) of Property: Servitudes § 3.2 (2000) (stating that “[n]ei-ther the burden nor the benefit of a covenant is required to touch or concern land in order for the covenant to be valid as a servitude”). However, because our Supreme Court has not formally rejected the requirements set out in Lex Pro, we analyze the evidence in this case in accordance with those requirements. See Aguilera v. Palm Harbor Homes, Inc., 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (explaining that the Court of Appeals is bound by Supreme Court precedent).Defendant Failed to Make a Prima Facie Showing Entitling Her to Summary Judgment on Two Elements of a Covenant Running with the Land, and Plaintiffs Established Material Issues of Fact on the Third Element{12} Having established the elements of a covenant running with the land, we consider whether summary judgment in favor of Defen-dant was appropriate. Plaintiffs argue that De-fendant failed to make a prima facie showing entitling her to summary judgment because she “obfuscated the legal issue” central to the case. In the district court and on appeal, Defendant relies exclusively on the contention that she could subdivide her lot if she established that there was no general plan of development of which she had notice that would give rise to an implied non-subdivision restriction. We conclude that this contention begs the question of whether the restriction in Defendant’s initial deed constituted a covenant running with the land.{13} The existence of a general plan of devel-opment can be relevant to the determination of whether an enforceable covenant running with the land exists in three ways. First, a general development plan can be used to prove that the covenanting parties intended a covenant to run with the land. See Rowe v. May, 44 N.M. 264, 272, 101 P.2d 391, 396 (1940) (noting that the inclusion of identical language in all deeds in an area expressed the grantor’s intention that the restriction was for the benefit of all lots in the area). Second, the existence of a common development plan can be used to prove that a purchaser had notice of the covenant. Pol-lock v. Ramirez, 117 N.M. 187, 192, 870 P.2d 149, 154 (Ct. App. 1994) (explaining that, in the absence of actual notice, if “the land in


question exhibits a uniform appearance, and the property, along with the buildings or other structures thereon, evidence a general plan or common scheme of development, sufficient to place the purchasers upon notice of the plan or scheme,” the purchaser is on inquiry notice of the existence of the restrictions). Third, the existence of a common development plan can be used to impose restrictions on parcels of land in a common development even if the restrictions have been omitted from the deeds of the property against which a party seeks to enforce the restrictions. See Sharts, 107 N.M. at 417, 759 P.2d at 204.{14} While the existence of a common development plan can be used to determine whether a covenant is enforceable and whether a restriction applies to property in a subdivi-sion that is not expressly restricted, a covenant running with the land “does not require a common scheme or plan.” Cypress Gardens, Ltd. v. Platt, 1998-NMCA-007, ¶ 15, 124 N.M. 472, 952 P.2d 467. Instead, as we have explained, the covenant will be enforceable if the covenant touches and concerns the land, if the original parties intended the covenant to run with the land, and if the successor to the burden is on notice of the covenant. Lex Pro, 100 N.M. at 391, 671 P.2d at 639 (analyzing whether a restriction was intended to run with the land without considering whether a common plan or scheme existed). Once the three requirements have been met, a covenant may be enforced against the party who bears the burden of the covenant by the party who receives the benefit of the burden. See Rowe, 44 N.M. at 267, 101 P.2d at 393 (noting that surrounding property owners may enforce a covenant if it runs within the land for the benefit of all property owners with a restricted area).{15} Consequently, in order to establish her entitlement to summary judgment, Defendant had to make a prima facie showing that one of the three requirements of an enforceable covenant running with the land was absent. We conclude that either Defendant failed to make such a showing or Plaintiffs raised genuine issues of material fact.First Requirement: That the Covenant Touches and Concerns the Land {16} With respect to the first element, deter-mining whether the covenant touches and con-cerns the land requires an objective analysis that focuses on the contents of the covenant itself. Cypress Gardens, Ltd., 1998-NMCA-007, ¶ 8. A burden touches and concerns the land if its performance renders the covenan-tor’s interest in the land less valuable while rendering the covenantee’s interest in the land more valuable. Lex Pro, 100 N.M. at 391, 671 P.2d at 639. The restriction in Defendant’s ini-

tial deed by its express terms placed a burden on Defendant’s interest in her property while placing a benefit on Plaintiffs’ interest in their property. Defendant’s property is burdened by the restriction prohibiting subdivision, and Plaintiffs are benefitted by being able to enjoy a lower density of construction in their area. Defendant’s evidence established only that she did not see anything in the area surrounding her lot suggesting that there was a general plan limiting subdivision other than the one contained in the Restriction. However, this absence of an observable general plan does not negate the express language in the initial deed.{17} Although Defendant’s arguments lack clarity, she appears to contend that the only written restriction on the use of her property was that contained in the Restriction and that she can ignore the covenant included in her initial deed because of the contrary represen-tations made by her real estate agent prior to the delivery of the deed, to the effect that Defendant would be allowed to subdivide her lot into one-acre parcels. We fail to understand this contention, especially given the established law that “[t]hough the terms of [a] deed may vary from those contained in the contract [to convey], the deed alone must be looked to to determine the rights of the parties.” Norment v. Turley, 24 N.M. 526, 529, 174 P. 999, 1000 (1918). In our view, Defendant failed to make a prima facie showing that the covenant in the deed did not touch and concern the land.Second Requirement: That the Parties Intended the Covenant to Run with the Land{18} In assessing the second requirement, because the deed does not specify that the covenant is to run with the land, we consider “the circumstances surrounding the transac-tion and the object of the parties in making the restriction.” Lex Pro, 100 N.M. at 391, 671 P.2d at 639. This requires us to consider whether both the burden and the benefit of the covenant were intended to run with the land. Id. Defendant made a prima facie showing that the grantor may not have intended the benefit of the covenant to run with the land because all of the deeds to property in the Tract did not contain the language Plaintiffs were seeking to enforce. Cf. Rowe, 44 N.M. at 272, 101 P.2d at 396 (noting that the inclusion of identical language in all deeds in an area expressed the grantor’s intention that the covenant was for the benefit of all lots in the area).{19} However, Plaintiffs presented evidence raising a question of fact on this element. Specifically, Plaintiffs provided evidence that identical restrictions were placed in the deeds to some of the lots surrounding Defendant’s lot and that purchasers whose deeds did not

contain the express restriction were told that they were prohibited from subdividing. Fur-ther, Plaintiffs presented evidence that Lary had expressly stated that he wanted the Tract to be bound by a restriction against subdivi-sion because of the unique layout of the land in that area and his desire to limit the density there. This evidence raises a question of fact regarding whether the grantor’s intent was to create a covenant running with the land.Third Requirement: That Defendant Had Notice{20} Finally, with respect to the third require-ment, notice, Defendant’s primary argument on appeal is that Plaintiffs failed to produce evidence that she had knowledge of a common development plan at the time she purchased her property. Defendant contends that knowl-edge of the plan is the “sin[e] qua non for enforcement of a ‘common plan.’” Contrary to Defendant’s argument, however, “[w]hen a party has actual notice, there is no legal need to imply notice from the existence of a com-mon scheme or plan.” Cypress Gardens, Ltd., 1998-NMCA-007, ¶ 15. Thus, if Defendant had actual knowledge of the covenant, it is irrelevant that the characteristics of the neigh-borhood did not alert her to the fact that she was prohibited from subdividing her property.{21} Defendant acknowledges that the deed she received contained an express restriction on her ability to subdivide her property. De-spite this acknowledgment, Defendant argues that she did not have actual notice of the re-striction because her real estate agent told her prior to the purchase that she could subdivide as long as the ensuing parcels were not less than one acre each.{22} As previously noted, “[t]hough the terms of the deed may vary from those contained in the contract, the deed alone must be looked to to determine the rights of the parties.” Nor-ment, 24 N.M. at 529, 174 P. at 1000. Because the deed Defendant accepted expressly stated that she was prohibited from subdividing her property, Plaintiffs had a factual basis for ar-guing that Defendant had actual notice of the covenant, despite her agent’s oral representa-tions. As a result, Defendant failed to make a prima facie showing that she did not have notice.CONCLUSION{23} For the foregoing reasons, we reverse summary judgment in favor of Defendant and remand for proceedings consistent with this opinion.{24} IT IS SO ORDERED. CYNTHIA A. FRY, Chief

JudgeWE CONCUR:JAMES J. WECHSLER, JudgeTIMOTHY L. GARCIA, Judge


“Mediation Masters” SeminarFriday, March 11, 2011

5.7 CLE Credits

Please return to: New Mexico Trial Lawyers’ Foundation P.O. Box 301, Albuquerque, NM 87103-0301

TUITION (After March 4, 2011 increases by $10) NMTLA Member ................................................................................$190.00 (If you are attending the seminar and joining NMTLA, please send two checks, one for the seminar and one for your dues) Non Member Attorney.........................................................................$240.00 Paralegal ................................................................................................$90.00 (Attorney must also be registered for this program Attorney attending: ____________________________________________ ) UNM Law School Student Chapter Member ........................................$45.00 NMTLA Public Interest Attorney Member .........................................$149.00 Full-time Judicial Clerk (Must pre-register) no MCLE Credits .................................................................................$25.00 MCLE Credits reported .........................................................................$31.00 Full-time Judge or Appellate Law Clerk (Must pre-register) no MCLE Credits ..................................................................................$25.00 MCLE Credits reported .........................................................................$31.00

Sheraton Albuquerque Airport Hotel • 2910 Yale Blvd. SE • Albuquerque, New Mexico

P R O G R A M S C H E D U L E8:30 a.m. Check-in/Registration

9:00 a.m. Mediation Openings - When to Roll Out the PowerPoint and When to Pass - How to Start the Day

Luis G. Stelzner, Esq.(30 Minutes - 0.5 Credit)

9:30 a.m. Mediation Openings - Alternate Perspective - How to Start the Day

Bruce D. Hall, Esq.(30 Minutes - 0.5 Credit)

10:00 a.m. Mediation Negotiations Q&A - The Meat of a Mediation and How to Close the Gap

Attorney Panel: Bruce D. Hall, Esq., William C. Madison, Esq. & Luis G. Stelzner, Esq.

(60 Minutes - 1.0 Credit)

11:00 a.m. Break

11:15 a.m. When to Walk Away from Mediation and Other Ways to Seal the Deal

William C. Madison, Esq.(45 Minutes – 0.7 Credit)

12:00 p.m. Lunch (on your own)

1:30 p.m. Defense Attorney Perspective on Mediation and What the Adjuster Wants to Know

Rick Beitler, Esq.(30 Minutes – 0.5 Credit)

2:00 p.m. Preparing the Client for Mediation and Ethical Considerations When Representing Multiple Plaintiffs

Joel T. Newton, Esq. and William F. Webber, Esq.(30 Minutes – 0.5 Credit)

2:30 p.m. The Silent Participants at Mediation - When Set-Aside Trusts Are Needed and Answering Insurance Company Questions about Medicare and Medicaid

Susan M. Tomita, Esq.(45 Minutes – 0.7 Credit)

3:15 p.m. Break3:30 p.m. Arbitration Agreements - The Current State of the Law and How These Affect Mediation Dusti Harvey, Esq.

(30 Minutes – 0.5 Credit) 4:00 p.m. Federal Court Settlement Conferences

Honorable Alan C. Torgerson(45 Minutes - 0.7 Credit)

4:45 p.m. AdjournLee Hunt, Program Co-Chair

Victor Poulos, Program Co-Chair

Payment Check Enclosed Visa MasterCard AmExTo register with a credit card complete registration form including credit card information and fax form to 243-6099 or call 243-6003.

Card No. ________________________________________________________Exp. Date: ____________________________ CVC Code: ________________Billing Address: __________________________________________________________________________________________ Zip____________________Signature ________________________________________________________

(cardholder signature required)

Name ___________________________________________________________NM Bar ID No. ___________________________________________________Firm ____________________________________________________________Mailing Address __________________________________________________City/State/Zip: ____________________________________________________Phone: __________________________________________________________Fax: ____________________________________________________________E-mail __________________________________________________________

Mediation MastersAnd How to Settle Cases Seminar

5.7 CLE CreditsMARCH 11, 2011

S E M I N A R R E G I S T R A T I O N

P� sents

I cannot attend the seminar. Please send the: NMTLA Members Non-membersCourse Materials $25.00 $40.00Course Materials & Audio Tape $80.00 $130.00


Our firm’s name has changed from Wagner Ford Law, P.A. to

Ken Wagner is pleased to announce that

Thomas P. McBride has rejoined the firm. The firm address and phone number remain the same.

Email Ken Wagner at [email protected].

Email Tom McBride at [email protected].

We gratefully accept personal injury referrals. Lisa P. Ford is no longer with the firm.

All advertising must be submitted via e-mail by 4:00 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Wednesday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, 13 days prior to publication.

For more advertising information, contact:

Marcia C. Ulibarri at 505.797.6058 or e-mail [email protected]

SUBMiSSioN DeADliNeS





Phone: (505) 982-4676Fax: (505)988-7029www.sommerudall.com

Sommer, Udall, Sutin, Law Firmis pleased to announce the addition of

Jeremy R. JonesCandice Lee

Mark Kriendler Nelsonas shareholders of the firm

Jeremy R. Jones has been with the Som-mer Udall Sutin Law Firm since 2007. He received his undergraduate degree from Fordham University in 2001, and his Doc-tor of Jurisprudence from University of San Francisco in 2004. His areas of prac-tice include civil litigation involving busi-nesses, banking, real estate and construc-tion matters, and real estate and business transactions.

Candice Lee has been with the Sommer Udall Sutin Law Firm since 2006. She re-ceived her undergraduate degree from University of California, San Diego, and her Doctor of Jurisprudence from Santa Clara University School of Law, magna cum laude, in 2000. Her areas of practice include business planning and corporate transactions, startup company & venture capital transactions, real estate, probate, estate and trust litigation, civil litigation, and employment matters.

Mark Kriendler Nelson has been with the Sommer Udall Sutin Law Firm since 2007. Mark holds a B.A. from Brown University, magna cum laude, where he was elected to Phi Beta Kappa, and received his J.D in 1995 from Columbia University School of Law, where he served as Editor-in-Chief of the Columbia-VLA Journal of Law & the Arts. His areas of practice include es-tate planning, probate, art and intellectual property law, nonprofit organizations and charitable giving, and taxation.

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Valuation, ForensicLitigationand Services

It’s What We Do,and we’re dedicated to doing it well.

R E D W. C O M 5 0 5 . 9 9 8 . 3 2 0 0

Ed StreetCPA/ABV/CFF, CVA

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CPAsÊ|ÊBusinessÊ&ÊFinancialÊAdvisors

Integrity Counts®

Juliana Garcia, D.O.

Professional Medical Evaluations, P.C.1100 Lomas Blvd. NW, Suite 1

Albuquerque, NM 87102Phone: 505-242-0800 • Fax: 505-242-0801

Independent Medical Evaluations (IME)Medical File Reviews & Personal Injury

IME Panels & Impairment RatingsSecond Opinions & Fitness for Duty

Dr. Garcia and her staff look forward to providing the quality reports

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Jamison Barkley,former New MexicoSupreme Court Law Clerk,is now available for research and writing. Trial briefs, research memoranda,and appellate pleadings.

Call:505.795.4356

email: [email protected]

Family LawSPECIAL MASTER

(505) 286-8865



Chris Moody

Available for

Mediat ions/Arbitrat ions27 years experience in

Labor/Employment Law Litigation

Representing Employers and Employees

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[email protected]

Disability Income InsuranceDiscounts Available to State Bar Members

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Judith L. DurzoAnimal Law & Nonprofit Law• Pet Trusts: Protect your pet if you cannot• Mediation of Animal Disputes• Dog Bites to Animal Rights Cases • Formation and Advice for Animal &

Environmental Nonprofit Organizations

505-797-8540 • fax [email protected]

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MAILI M. MYERSReal Estate Appraiser – 28 yrs

(505) [email protected]

Bankruptcy – Domestic Relations - Estate

Mediation

SIDNEY SCHULTZ, MD

announces that as of March 1, 2011, he will no longer accept appointments for IMEs,

record reviews, or Orthopaedic consultations.

He would like to thank all the attorneys with whom he has had the pleasure of working over many years.

Visit the State Bar of New Mexico’s web sitewww.nmbar.org


http://www.dwinm.com


http://www.nmanimallaw.com




poSitionS

claSSified

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

Associate AttorneyAssociate Attorney for Alb. or SF Offices: 7-10 years experience in Family Law, Guardian-ships, Estate Planning, Probate and/or Civil Litigation. Strong writing, research, computer, and Litigation experience required. Send resume and references via Facsimile (505) 989-3440. All replies will be kept confidential.

Legal Secretaries / ParalegalsHigh Desert Staffing seeks candidates with 2-5+ years experience for both permanent and temporary positions. Call for interview: (505) 881-3449

Estate Planning AttorneyMorris, Hall & Kinghorn PLLC (www.mor-ristrust.com) seeking Estate Planning Attorney for Albuquerque Office with 2+ years experi-ence. Send Resume and Salary Requirements to [email protected].

Full Time ParalegalImmediate opening for full time paralegal posi-tion for a busy general practice in Albuquerque, 5+ years experience preferred. Experience in domestic relations, business transactions and litigations a plus. Salary negotiable based on experience. Great benefits and working en-vironment. Please email resume to [email protected]

Request for ApplicationsCity of AlbuquerqueCity Attorney PositionCITY ATTORNEY: Attorney shall com-municate, meet and work closely with Mayor and City Council on matters of concern to the governing body; provides legal advice when requested or required on personnel matters; pending or potential litigation facing the City; during City Council meeting on matters listed on the agenda and also during executive ses-sion. Shall avoid all conflicts of interest and shall not practice law privately. Qualifications: Requires a Juris Doctorate Degree from an accredited law school; shall be licensed to prac-tice law in the State of New Mexico; requires experience in Municipal Law with knowledge of City Ordinances; City personnel Rules and Regulations; City Purchasing Regulations; State Statutes; Experience in the area of public law, public speaking and negotiations. Salary will be based upon experience and knowledge. All applicants must submit, by expiration date, a City Application. Resumes will not be ac-cepted in lieu of the application. An On-line Application Process can be accessed at web site www.cabq.gov/jobs. Applications are also available at the City of Albuquerque Human Resources Department 400 Marquette NW 7th Floor Suite 703, Albuquerque NM 87102. Copies of required certifications, registrations, and /or licenses, if not attached on-line, must be provided at the time of interview

TimeslipsFamily Law Attorney looking for person to do her monthly billing. Experience in using TimeSlips a must. Please fax resume and/or letter to 1-866-258-9392.

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Notice of RFP by New Mexico Attorney General’s Office for outside counsel services:Release date: March 1, 2011The New Mexico Attorney General’s Of-fice invites written proposals in response to RFP 11-305-P625-0001 from law firms who could initiate and prosecute a legal action to recover money for the State in connection with GlaxoSmithKline’s misconduct in the promo-tion/ marketing and sale of the diabetes drug Avandia (Rosiglitazone). For copies of the RFP with more information and instructions, fax a request to Lyn Payne 505-827-6771 or write: Office of the NM Attorney General, Lyn PayneAdministrative Services Division, PO Drawer 1508, Santa Fe, NM 87504-1508. Responses to this RFP must be received by the AGO by 4:00 pm on March 30, 2011.

http://www.mor-ristrust.com




http://www.cabq.gov/jobs



MiScellaneouS

Classic Downtown Office Suites$450/$650 per month. Includes one additional work station, utilities, wi-fi, conference room. Hardwood f loors, stained glass windows, on-site parking, minutes to courthouses. Professional space that retains the charm of downtown Albuquerque. (505) 843-7303

office Space

Law Office For Rent: Law office for rent, sharing office space with three other attorneys. Located at 8010 Menaul NE. Front door parking. Hal Simmons, 299-8999.

Beautiful Adobe Close to downtown, courthouses, hospitals. Reception area, conference rooms, employee lounge included. Copy machine available. Ample free parking and easy freeway access. From $195.00 per mo. Utilities included. Oak Street Professional Bldg., 500 Oak St. N. E. Call Jon, 507-5145; Orville or Judy, 867-6566.

Two Offices AvailableBest location in town, one block or less from the federal, state, metropolitan courts. Includes secretarial space, phones and service, parking, library, janitorial, security, receptionist, daily runner, etc. Contact Thomas Nance Jones, (505) 247-2972

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

ServiceS

Cardiology ExpertBoard certified, author, editor, med school teaching awards. Long successful experience cardiac cases: malpractice (defense and plaintiff), worker’s comp (State and Federal). NM legal references. [email protected]

Search For WillCarl R. Gary, Rio Rancho, 2-2-11. 678-215-4341

Commercial Office SpaceAvailable February 2011 - 1250 sq feet of commercial office space available. Located at Carlisle and I-40 in the unique Whitener Building. Four offices, reception area, copy room and conference room. Lease all or part. Utilities extra. Prefer long term tenant. Elec-tronic billboard advertising available. Price negotiable. Must see to appreciate. Reply by e-mail or call Russ, Nichole or Leanne at 505-242-3333.

Downtown Law Office for RentSmall office in secure, Downtown bank build-ing available immediately to attorney with civil practice. Two minutes walking distance to all courthouses. Includes one paid parking space, fax, copier, internet access, conference room, law library, reception area, full kitchen, part-time receptionist and cleaning service. Month to month rent of $675. Possible referral of civil cases. Call Gloria at 242.6300 to schedule appt. to view.

Professional Offices Available (Girard and Indian School Road)2741 Indian School Rd NE, Albuquerque, NM$650.00 to $850.00Services include: Receptionist services, phones, voice mail, fax machine, copier machine, conference room, tenant lounge, high-speed internet, janitorial services, security. Each of-fice is climate controlled by you and superior sound insulation for privacy. Call Barbara at 255-6002.

State of the Art Professional OfficeAvailable in February. Prestigious Uptown location, high visibility, convenient access to I-40, Bank of America, companion restaurants, shopping, extensive landscaping, ample park-ing, full-service lease. 2937SF, top floor, glass entry, well improved and appointed reception, offices, kitchen, and conference room. Build-ing signage available. Three (3) year lease. Comcast Business Class is now available at Uptown Square (includes High-Speed Internet, Telephone and Television). Call Ron Nelson or John Whisenant 883-9662 - Uptown Square

Freelance Attorney Available for Project WorkYale Law School graduate and attorney licensed in NM & NC available for project-based research, writing, editing, and review. www.celesteboyd.com

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.

Exceptional Office SpaceExceptional Office space in the heart of Santa Fe located in the Lensic Commercial Building on W. San Francisco Street. Suites ranging from 488 to 534 square feet. Monthly rates starting at $899.00 per month including op-erating expenses. For additional information please contact Adella L. Loggains at Greer Enterprises, Inc. (505) 983-6504 x-111 or [email protected]

2010-2011 Bench & Bar

Directory

Purchase online at www.nmbar.org

or call 505.797.6000

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2012 National Mock Trial, c/o Center for Civic ValuesPO Box 2184, Albuquerque NM 87103-2184

Phone: 505.764.9414 • Fax: [email protected]

The Center for Civic Values and the State Bar of New Mexico are co-sponsoring the 2012 National High School Mock Trial Championship in Albuquerque, May 3-6, 2012, and we need your support to host this impressive event.

The goal is to raise $100,000 to cover the cost of transportation, meals, printing and mailing, facility expenses, and awards for more than 1,000 high school juniors and seniors.

“Not all students who participate in mock trial become lawyers. What they do become is better and more active citizens.”

–The Hon. Gene E. Franchini

The 2012 National High School Mock Trial Championship is dedicated in loving memory to Justice Gene Franchini, the “Godfather” of mock trial in New Mexico. He was a dedicated CCV board member and a passionate champion of this program that has touched the lives of thousands of high school students since 1978.

To make a tax-deductible donation, visit http://www.civicvalues.org/donate_now.htm

The goal is to raise $100,000 to cover the cost of transportation, meals,

Your

contribution

will make a

difference.

2 0 1 2 N A T I O N A L H I G H S C H O O L MOCK TRIAL CHAMPIONSHIP

Albuquerque, N.M.

http://www.civicvalues.org/donate_now.htm


Contact Marcia C. Ulibarri: 505.797.6058 • [email protected]

NOW accepting ad space reservations for the

2011-2012 BeNch & Bar DirectOry


Documents

March 2, 2011 • Volume 50, No. 8 - State Bar of New Mexico · Bar Bulletin - March 2, 2011 - Volume 50, No. 8 1 ... Standard Fee $199 Indian Law Section Member, ... 827-4925. Third