Journals
Volume 32, No. 2, Spring 2002
Incorporating the Law of Criminal Procedure in Termination of Parental Rights Cases: Giving Children a Voice Through Matthews v. Eldridge
Judge Michael D. Bustamante
Problems with Court-Annexed Mandatory Arbitration: Illustrations from the New Mexico Experience
Judge William P. Lynch
Court-annexed mandatory arbitration (CAMA) has been promoted as a way of settling cases before trial. However, many CAMA programs contain provisions that impermissibly coerce the parties into settlement. This article examines these issues and other issues presented by the CAMA programs adopted in New Mexico. The experience with CAMA in New Mexico indicates that CAMA may actually increase the number of cases filed in court. The Article concludes that CAMA programs present serious constitutional issues and coercively decrease access to the courts, and that CAMA should be eliminated and that courts should utilize other mechanisms to resolve cases before trial.
Resolving Land-Use Disputes by Intimidation: SLAPP Suits in New Mexico
Frederick M. Rowe & Leo M. Romero
In April 2001, New Mexico joined seventeen other states by enacting legislation to curtail SLAPP suits (Strategic Lawsuits Against Public Participation) that target citizens for exercising their rights to petition their government as guaranteed by the First Amendment. The New Mexico Legislature recognized the importance of protecting citizens’ rights to petition their government and to participate in proceedings before governmental tribunals and enacted procedures to mitigate the financial burdens of defending against lawsuits based on citizen participation before governmental bodies. At the same time, the new statute prevents the chilling effect of SLAPP suits on both those sued as well as other citizens who might be deterred from participating in issues of community concern because of fear of costly litigation.
The statute addresses those legislative goals. Key provisions require early determination of motions to dismiss SLAPP suits in order to avoid the expenses of defending such a lawsuit. These provisions call for expedited consideration of motions to dismiss SLAPP suits and for expedited appeals of rulings on these motions. Another provision, designed to deter meritless lawsuits against citizens who petition the government in the exercise of their First Amendment rights, mandates the award of attorney fees to those who succeed on their motion to dismiss. Consequently, filing lawsuits against people whose conduct is a legitimate petitioning of the government or exercise of free speech will no longer be without cost. Under the new anti-SLAPP law, plaintiffs filing such lawsuits now risk having to pay their targets’ attorney fees.
The statute creates no new legal rights or defenses for those sued based on their constitutionally protected petitioning or free speech activities. Nor does the statute limit any rights to file actions against persons whose conduct strays outside the constitutional protections. Rather, the new law provides procedures that allow defendants who claim that lawsuits are based on protected conduct or speech to obtain early rulings on motions to dismiss and reimbursement for their attorney fees if they prevail.
This article outlines recent SLAPP litigation in New Mexico, summarizes the new anti-SLAPP law, and highlights important legal issues posed by the statutory text for land-use controversies.
Death in the Desert: A New Look at the Involuntary Intoxication Defense in New Mexico
Shawn Marie Boyne & Gary C. Mitchell
In 1999, journalists from around the world arrived in Carlsbad, New Mexico to investigate the murder of David Coughlin by his friend, Raffi Kodikian. The two young men arrived in Carlsbad on their way from Boston to California where Coughlin was to attend graduate school. Unfortunately, the young men became lost in the backcountry of Carlsbad Caverns National Park and severely dehydrated. When rangers found Kodikian he told them that he had killed his friend because his friend had begged him to do so. While the media labeled this a mercy killing, mercy killing is considered murder in New Mexico. In this article, Kodikian’s trial attorneys argue that Kodikian suffered from dehydration-induced intoxication. Although the trial court precluded Kodikian from using a defense based on the theory of involuntary intoxication, this article argues why such a defense should have been allowed.
Civil Procedure and Constitutional Law: Changing New Mexico Remittitur Procedure to Protect the Appropriate Balance of Power Between Judge and Jury—Allsup’s Convenience Stores, Inc. v. North River Insurance Co.
Sean J. Sullivan
Constitutional Law: State v. Nemeth—The Community Caretaker Exception to the Fourth Amendment
Alison Sanders
Criminal Law: Applying the General/Specific Statue Rule in New Mexico—State v. Santillanes
Quentin Smith
The "general/specific statute rule" is a judicially created canon of construction the court employees to limit prosecutorial discretion by compelling the prosecutor to charge under the more specific of two statutes when conviction under both would violate double jeopardy. In State v. Santillanes, 130 N.M. 464, 27 P.3d 456 (2001), the New Mexico Supreme Court attempted to clarify the proper use of the general/specific statute rule. However, by characterizing the application of the general/specific statute rule as a necessary limitation on the charging discretion of the prosecutor, the court failed to see the potential application of the rule in all cases where conviction under two separate statutes would be a double jeopardy violation. Furthermore, once the court finds the general/specific statute rule applicable in a particular case, it is often faced with the unguided task of determining which statute is specific. The development of workable standards for determining which statute is specific would greatly assist courts in their application of the general/specific statute rule.
Torts: Smith v. Ruidoso: Tightening the Leash on New Mexico’s Dogs
Anna Sibylle Ehresmann
