Volume 35, No. 3, Summer 2005

State v. Vandenberg: Lowering the Fourth Amendment Bar while Avoiding the Issue of Pretextual Police Conduct

Todd Coberly

Although pursuing a laudable goal—the safety of officers in the field—the court in State v. Vandenberg went a long way toward erasing the U.S. Supreme Court’s repeated insistence that people be left free from arbitrary police conduct. In Vandenberg, the New Mexico Supreme Court “trace[d] the outer boundary of facts and circumstances sufficient to justify a protective frisk.” Unfortunately, in doing so, the court traced beyond the constitutional mark—not only in the realm of protective frisks, but also in the realm of simple traffic stops. This Note points out that, as a result of Vandenberg, lower courts in New Mexico will have no choice but to uphold frisks and traffic stops that fall beneath the already minimal protections of the Fourth Amendment. This is unfortunate given New Mexico’s recent buttressing of individual rights through the use of its state constitution. Moreover, this Note discusses how the court in Vandenberg failed to clarify whether pretextual police conduct will be tolerated in New Mexico.

For This Right There Is a Remedy: The New Mexico Supreme Court’s Application of Ex parte Young to Allow Suits Against the State, Gill v. Public Employees Retirement Board

Jaime R. Fontaine

In Gill v. Public Employees Retirement Board, the New Mexico Supreme Court held that suits by private individuals against the State of New Mexico for violations of the Age Discrimination in Employment Act (ADEA) were permissible under the doctrine of Ex parte Young. In Kimel v. Florida Board of Regents, the U.S. Supreme Court held that private individuals could not sue states for money damages for violations of the ADEA due to Eleventh Amendment state sovereign immunity. The New Mexico Supreme Court in Gill distinguished Kimel on the grounds that Gill’s suit was brought under Ex parte Young and sought prospective, injunctive relief, rather than money damages, therefore sovereign immunity did not bar the suit. This Note examines the historical background to the U.S. Supreme Court’s jurisprudence on the Eleventh Amendment and the doctrine of Ex parte Young and the New Mexico Supreme Court’s application of that jurisprudence to suits brought against the State of New Mexico in state courts. The difficulty in distinguishing between appropriate forms of relief under the doctrine of Ex parte Young is also discussed. Further, this Note argues that Justice Minzner’s special concurrence in Gill provides a much-needed clarification of prior New Mexico case law on the Eleventh Amendment.

Statutes of Limitations Applied to Minors: The New Mexico Court of Appeals’ Balance of Competing State Interests to Favor Children

Charlotte T. Rich

When creating the New Mexico Tort Claims Act and the Medical Malpractice Act, the state legislature included shorter statutes of limitations for children then are present in the general tort statutes. The plaintiffs in Jaramillo v. Board of Regents of the University of New Mexico Health Sciences Center and its sister case Jaramillo v. Heaton challenged the constitutionality of the limitations as applied to minors. The New Mexico Court of Appeals found the statutes of limitations unconstitutionally applied because the requirements denied the minor’s due process right of access to the courts. The court protected children’s rights by finding the statute unconstitutionally applied, but the court also protected other state interests by not finding the statutes of limitations per se unconstitutional with regard to minors. This Note examines the right of children to protect their due process rights without reliance on parents or guardians, and it also questions whether parents should have a legal burden to file tort actions on their child’s behalf. This Note suggests that the court’s failure to provide adequate guidelines for determining when the statute is constitutionally valid will create confusion in future tort cases involving minors.

State v. Flores: In the Wake of Atkins v. Virginia, New Mexico Tackles Capital Punishment for Defendants with Mental Disabilities

Aletheia V.P. Allen

New Mexico was one of the first state legislatures to prohibit the execution of defendants with mental retardation. Eventually, in Atkins v. Virginia, the U.S. Supreme Court followed state legislatures, holding that execution of defendants with mental retardation was constitutionally prohibited. The Court left to the states the power to establish procedures to implement the mandate. In State v. Flores, the New Mexico Supreme Court confronted the constitutionality of the procedures in New Mexico’s capital punishment statute and found that it was not unconstitutional as written. This Note will contextualize Flores through an examination of the primary federal cases leading up to the decision and then describe how Flores responded. This Note argues that the court’s interpretation of the statute adequately determined that a pre-trial determination on the presence of mental retardation is appropriate. The Note further argues that the court in Flores accurately interpreted the federal decisions to find that a lack of mental retardation is not an aggravating factor and thus need not be found by a jury beyond a reasonable doubt. This Note suggests how Flores may be used in legislative action to clarify the statute, if necessary, or to expand the statute to include other mental deficiencies. Finally, the Note discusses lower courts’ potential interpretation of the definition of “mental retardation” and the danger of adhering to a strict intelligence quotient cut-off.

Twohig v. Blackmer: New Mexico’s Broad Protection for Trial Participant Speech and the Hurdles to Cross Before Imposing Gag Orders in New Mexico

Denise M. Chanez

In recent years, high profile cases like the O.J. Simpson murder trial, the Scott Peterson murder trial, and the Michael Jackson molestation trial have generated extensive media coverage of trial proceedings. In New Mexico, the three trials of Gordon House, a man accused of driving drunk on Christmas Eve and killing four people, captured national attention and became one of the most publicized cases in New Mexico history. As a result of the heavy news coverage in high profile cases, courts have turned to gag orders to ensure that publicity does not interfere with fair trials. Twohig v. Blackmer arose out of the Gordon House case and involved a challenge by House’s attorney to a gag order prohibiting trial participants from speaking to the news media. The New Mexico Supreme Court struck down the gag order in Twohig, and in doing so created a high burden that must be overcome before a judge may impose a trial participant gag order. This Note contends that the court in Twohig properly characterized the gag order as a prior restraint. In addition, this Note discusses the different standards for regulating attorney speech in pending cases, concluding that the “clear and present danger” standard is more appropriate than the “reasonable likelihood of substantial prejudice” standard when addressing free speech rights. This Note concludes by questioning the necessity of imposing gag orders on defense attorneys and whether New Mexico’s free speech provision provides greater protection than the U.S. Constitution.

Go Not Where There Is a Path: Prescriptive Easement Law in New Mexico after Algermissen V. Sutin

Mark S. Barron

The elements that must be met in order to acquire an easement by prescription are the product of a long history deeply rooted in ancient Anglo-American common law. This history has led to discrepancies across jurisdictions and has spawned an area of the law bereft with inconsistency and beleaguered by exceptions to rules that are, at best, amorphous. In 2003, the New Mexico Supreme Court used the decision of Algermissen v. Sutin to clarify the state of prescriptive easement law in New Mexico. In so doing, the court in Algermissen joined a national trend adopting the more succinct approach of the Restatement (Third) of Property: Servitudes. While a consolidated list of elements was announced, this Note argues that the result in Algermissen did not clarify the law as it might have. Additionally, this Note argues that the decision severely handicaps those who may claim easements in the future by elevating the evidentiary standard necessary to meet the new elements and potentially raising a constitutional complication not previously part of the caselaw.

A Third-Party Claimant Becomes an Insured: Hovet v. Allstate and the Expanding Right to Sue under New Mexico’s Insurance Code

Thomas Giordano-Lascari

In Hovet v. Allstate Insurance Co., the New Mexico Supreme Court extended the right to bring a cause of action for a violation of the unfair claims practices section of the Insurance Code to third-party claimants. Prior to the Hovet decision, New Mexico only recognized a cause of action under the unfair claims practices section of the Insurance Code by first-party policyholders. The fact that the New Mexico Legislature even recognized a private cause of action under the Insurance Code already made New Mexico unique from most jurisdictions. The extension of a cause of action to third-parties further separates New Mexico from the jurisdictions that have considered the issue. This Note analyzes the reasoning behind the Hovet opinion as well as the case law that led to the holding. Further, this Note analyzes California’s attempt at instituting a similar cause of action and the effects that holding had on California, as well as possible implications that may arise in the wake of the Hovet ruling.

Passive Voice: The Unclear Standards for Establishing Personal Jurisdiction in New Mexico via the World Wide Web

Mark D. Standridge

In a case of first impression, the New Mexico Court of Appeals held, in Sublett v. Wallin, that an essentially “passive” Web site will not suffice to establish personal jurisdiction over the site’s owner or operator in the courts of New Mexico. The court’s ruling left open the possibility that an “active” site could establish the requisite minimum contacts needed for jurisdiction. Additionally, the court left for another day the question of whether or not a Web site in and of itself is sufficient to establish jurisdiction for specific torts such as defamation or trademark infringement. This Note begins by examining long-established principles of personal jurisdiction and their impact in the context of the Internet. Courts nationwide have struggled with the application of personal jurisdiction over the World Wide Web, though the vast majority of courts follow the “sliding scale” rationale found in Zippo Manufacturing Co. v. Zippo Dot Com. While the concept of a sliding scale is helpful, courts have been hesitant to define precisely what types of Web sites are “active,” “passive,” or somewhere in the middle. This Note argues that New Mexico’s Sublett ruling is typical of the unclear standards for Web-based personal jurisdiction set by courts across the country. Ultimately, Web designers and site owners will need clearer standards to determine whether or not their sites will subject them to the jurisdiction of a foreign court.