Journals
Volume 34, No. 1, Winter 2004
The New Mexico Uniform Trust Code
David M. English
The Uniform Trust Code, which was completed in 2000, is the first effort by the Uniform Law Commissioners to codify the law of trusts. New Mexico, which enacted the UTC in 2003, is one of the first states to enact the Code. This article, which was written by the National Reporter for the UTC, examines the New Mexico enactment. Part I describes the reasons behind the drafting of the UTC and the relationship of the UTC with the Restatement of Trusts and concludes with a description of New Mexico’s former and limited statutory law on trusts. Part II provides an overview of the UTC’s provisions and its scope of coverage. Part III lists the modifications that New Mexico made to the official text of the uniform act. Part IV, which constitutes the bulk of the article, analyzes the provisions of the UTC that have received the most debate among the numerous states considering enactment. It also compares these provisions to former New Mexico law. Included are discussions of trust creation, modification, and termination; the concept of principal place of administration; nonjudicial settlement and representation of beneficiaries; rules of construction; spendthrift protection and rights of creditors, special rules applicable to revocable trusts; removal of trustees; and the trustee’s duty to keep the beneficiaries informed of administration.
Developing the Eighth Amendment for Those “Least Deserving” of Punishment: Statutory Mandatory Minimums for Non-Capital Offenses Can be “Cruel and Unusual” when Imposed on Mentally Retarded Offenders
Timothy Cone
Atkins v. Virginia held that the Eighth Amendment prohibits executing the mentally retarded because of these offenders’ diminished culpability in relation to “average” offenders. This recognition that diminished culpability circumscribes the range of constitutionally permissible punishment extends outside death penalty cases to punishments like statutory mandatory minimums. When imposing mandatory sentences on mentally retarded defendants, judges have a constitutional duty to consider whether the minimum might violate the Eighth Amendment and, if so, to impose a sentence below the minimum. To determine the degree to which the sentence should be reduced, judges can rely on pertinent mitigators in sentencing laws, like the “minimal role” adjustment of the Federal Sentencing Guidelines
Overbreadth Outside the First Amendment
John F. Decker
Our nation has faced terrorist threats to its security and laws have been enacted to thwart any future threats upon the citizenry of this country. Critics have expressed concern that some of these laws may violate fundamental rights. Assume for a moment laws are enacted that broadly prohibit one from invoking several constitutionally protected fundamental rights. These laws provide (1) it is illegal for a citizen to verbally express support for a foreign government that does not support the military policies of the United States; (2) a citizen suspected of threatening the State’s ability to combat terrorism will be subjected to warrantless, suspicionless monitoring of his or her activities; (3) a citizen suspected of possessing incriminating information about themselves or others may be compelled to reveal such information; (4) a citizen who is indicted for threatening the security of the State will be denied a public jury trial; and (5) a citizen convicted of threatening the security of the State will be executed by hanging. At first blush, one would assume that such laws would be struck down as being unconstitutionally overbroad for infringing on first, fourth, fifth, sixth, and eighth amendment rights. Interestingly, if one attacked each of these draconian measures as unconstitutionally overbroad, one would only succeed with the First Amendment challenge given United States Supreme Court pronouncements. This article examines the “overbreadth doctrine,” which has been recognized as applicable to statutes whose “sweeping” language is so broad that it infringes upon activities the State is not constitutionally permitted to regulate. Historically, the doctrine originated in the First Amendment context although the Court employed the doctrine outside that context. However, in 1984 in Schall v. Martin and again in 1987 in United States v. Salerno, the Court stated that it had never recognized such a doctrine outside the First Amendment arena. Yet, a focus on the Court’s actions reveals there are a limited number of cases in which the Court in fact used the overbreadth doctrine, or an analysis that parallels overbreadth, to strike down statutes that were infringing on fundamental rights other than the First Amendment. These cases include the right to travel, the right to vote, and widely in the area of the right to privacy, particularly in Roe v. Wade and its progeny. In fact, in 2000 the Court decided Troxel v. Granville, announcing the application of a Washington statute broadly prohibited the right to raise children in violation of substantive due process. These actions have caused confusion among the lower courts as to the scope of the overbreadth doctrine. Moreover, there exists no legitimate reason to constrain overbreadth to the First Amendment context because the doctrine can be applied when other fundamental rights may suffer a crying need for the same protection.
Contours and Chaos: A Proposal for Courts to Apply the "Dangerous Patient" Exception to the Psychotherapist-Patient Privilege
Brian P. McKeever
This article examines the existing split among three federal circuits over whether courts should recognize a “dangerous patient” exception to the federal psychotherapist-patient privilege. The psychotherapist-patient privilege precludes adverse parties from compelling disclosure or testimony of communications between a psychotherapist and his or her patient in any legal proceeding. To date, three circuits—the Sixth, Ninth, and Tenth Circuits—have addressed the question of whether the psychotherapist-patient privilege provides for a “dangerous-patient” exception. The Tenth Circuit has recognized a “dangerous patient” exception in criminal cases when permitting a psychotherapist to testify about his or her patient’s statements is necessary to avoid imminent harm to third parties. The Sixth Circuit and the Ninth Circuit, in contrast, have refused to recognize a “dangerous patient” exception in any criminal case.
This article weighs the arguments for and against recognizing a “dangerous patient” exception to the psychotherapist-patient privilege in criminal cases. Ultimately, the article concludes that significant policy reasons and existing precedent compel courts to recognize the exception. The article then proposes a five-element model for future courts to use in deciding when to allow a psychotherapist to disclose his or her patient’s confidential statements in a criminal trial.
Note: State v. Mann: Extraneous Prejudicial Information in the Jury Room: Beautiful Minds Allowed
Sharon Blanchard Hawk
In 2002, the New Mexico Supreme Court, in State v. Mann, clarified that a juror’s reliance on personal knowledge and expertise to inform jury deliberations does not give rise to extraneous prejudicial information. In so deciding, Mann removed any notion that such reliance is misconduct that creates a presumption of prejudice necessary to sustain a motion for a new trial under Rule 11-606(B). By clarifying that it is permissible for a juror to rely on personal knowledge, specialized or common, the Mann court held that jurors do not introduce new facts into deliberations when they limit their deliberations to those facts properly presented at trial. In reaching this conclusion, the Mann court rejected any distinction between a juror’s use of specialized knowledge and a juror’s use of common knowledge as the dividing line between proper and improper deliberations. Rather, the Mann court identified a new line, and drew it between facts presented in open court and facts newly introduced during deliberations, unscreened by the trial process. After State v. Mann, a juror’s IQ is immaterial to his or her ability to sit on the jury. Accordingly, beautiful minds are allowed.
Note: The Fiduciary Duties Owed in a New Mexico Closely Held Corporation: Walta v. Gallegos Law Firm, P.C.
Camille Romero
In Walta v. Gallegos Law Firm, P.C., the New Mexico Court of Appeals addressed the nature of the fiduciary duties owed within the context of New Mexico closely held corporations. Specifically, the court examined the fiduciary ties that bind shareholders in such corporations. The court held that shareholders in closely held corporations are bound by the fiduciary duties to exercise utmost good faith and loyalty in their dealings with other shareholders and with the corporation itself. However, the court was careful to note that it was merely establishing the default standards applicable only in the absence of other express standards of conduct. This note will describe and discuss the factual particularities and procedural history of the Walta case, the historical setting of the case, and the court’s analysis of the issues presented in Walta. It will further examine the court’s rationale and will conclude with a discussion of the implications stemming from the Walta decision.
Note: Indirect Funding of Sectarian Schools: A Discussion of the Constitutionality of State School Voucher Programs under Federal and New Mexico Law after Zelman v. Simmons-Harris
B. Douglas Wood
In Zelman v. Simmons-Harris, the Supreme Court of the United States examined whether a governmentally established school voucher program violates the Constitution’s First Amendment Establishment Clause. In a five-to-four decision, the Supreme Court held that neutral assistance programs that offer aid directly to parents rather than schools do not violate the Establishment Clause even where the recipients redistribute funds to religiously affiliated institutions.
The New Mexico Constitution uses more restrictive language concerning funding of sectarian educational institutions than does the federal Constitution. Still, the central issue decided by the Supreme Court, whether the aid reached religious schools indirectly through the parents rather than directly from the state, is important in a New Mexico examination of voucher constitutionality.
This note explains the Court’s reasoning and the implications of the Zelman decision and further evaluates the likelihood for success of a New Mexico voucher program by analyzing both the ruling in Zelman as well as New Mexico’s own constitutional history and provisions regarding education in light of the relationship between church and state.
Note: Leaving Wildlife out of Wildlife Refuges: The Irony of Wyoming v. United States
Stanley Fields
During the twentieth century, the federal government has engaged in an increasing number of conflicts with state governments over the management of wildlife. Many of these conflicts have concerned the management of wildlife that is sometimes on federal land. This note uses Wyoming v. United States as a prism with which to analyze the application of the National Wildlife Refuge System Improvement Act (NWRSIA or the Act) and its impacts on wildlife management. The Tenth Circuit’s application of the Act is examined in the framework of law and science. Legally, the note considers the Tenth Circuit’s application of the NWRSIA in the context of the Tenth Amendment, related sovereignty issues, case law, and the Act itself. Scientifically, the note considers the impracticalities of the court’s opinion in the context of wildlife and disease management. Possible alternatives to the Tenth Circuit’s interpretation and application of the NWRSIA are also presented. The ultimate conclusion is that the court’s interpretations and rulings regarding the NWRSIA provide confusion and inconsistency in the interpretation and application of the Act.
