Journals
Volume 36, No. 3, Summer 2006
Attorneys for Children in Abuse and Neglect Proceedings: Implications for Professional Ethics and Pending Cases
Barry J. Berenberg
Over the last four decades, the legal system has struggled to find the best way to represent children in abuse and neglect proceedings. In 2005, New Mexico amended its Children’s Code to require that all children fourteen years and older in such proceedings be represented by a traditional attorney, rather than a guardian ad litem. The new youth attorneys are to treat their clients as adults, following the standard rules of professional conduct. State court decisions that have found the role of the guardian ad litem consistent with the rules of professional conduct create a loophole that could allow youth attorneys to act as guardians ad litem. Youth attorneys, however, have the potential to educate their clients about the nature of the legal relationship and thereby improve the outcome of the proceedings. A state constitutional clause that prevents the application of legislation to pending cases poses one additional challenge. This clause could prevent appointment of a youth attorney to children who were in the system and under fourteen when the amendment became effective. Precedents dealing with the clause are often conflicting, but can be reconciled by looking at the functional rather than formal effects of the legislation on a pending case. The youth attorney rule is functionally neutral, thus avoiding the effect of the clause.
The Irrational Legacy of Romer v. Evans: A Decade of Judicial Review Reveals the Need for Heightened Scrutiny of Legislation That Denies Equal Protection to Members of the Gay Community
Kate Girard
This year marks the ten-year anniversary of the U.S. Supreme Court’s decision in Romer v. Evans. Romer is a landmark case for members of the gay community as it marks the first time the Court declared that law that discriminates purely on the basis of sexual orientation, which is fueled by animus and aimed at denying members of the gay community legal protection, is an unconstitutional denial of equal protection.
Ten years later, this Comment serves as a reflection piece for Romer. Three questions guide this reflection. The first question focuses on the supervisory role of the U.S Supreme Court and evaluates how well Romer has served to guide lower courts as they confront and rule on issues relating to denial of equal protection on the basis of sexual orientation. The second question investigates how well Romer has served members of the gay community in their struggle to achieve equal protection under the law. As the answers to these questions reveal that courts most often use Romer to deny rather than grant members of the gay community equal protection, the third question emerges. In the current era of rapid promulgation of law that further denies members of the gay community equal protection, the third question asks, what can be done? The focus area of this question is the judicial branch. Lower courts fail to read Romer completely and fail to take the opportunity Romer provided to ensure members of the gay community equal protection. While most federal and state courts may not be prepared to take Romer’s opportunity, this Comment argues that New Mexico courts are. With a judicial equal protection structure that ensures great rigor of governmental rationale and a legal system that has never denied members of the gay community the protection of the law, New Mexico courts are prepared to ensure that New Mexico’s gay community receives the equal protection that our federal and state constitutions mandate.
Immigration Consequences of Guilty Pleas: What State v. Paredez Means to New Mexico Criminal Defendants and Defense Attorneys
Tyler Atkins
Issues of immigration law and policy have received a great deal of attention in recent years—especially in states with large immigrant populations like New Mexico. In 2004 the issue of whether a non-citizen criminal defendant has a constitutional right to be informed of the deportation consequences of a guilty plea reached the New Mexico Supreme Court in State v. Paredez. In a case of first impression, the Paredez court rejected the majority rule of other jurisdictions and held that New Mexico criminal defense attorneys are required to affirmatively advise non-citizen criminal defendants of the specific immigration consequences that a guilty or no contest plea will trigger. A failure to inform clients will be considered a violation of the defendant’s Sixth Amendment guarantee to effective assistance of counsel. This Note argues that New Mexico’s new rule appropriately establishes safeguards to protect non-United States citizens’ right to effective assistance of counsel by preventing them from unknowingly agreeing to plea deals that lead to per se deportation. However, the Note also warns that, because Paradez is based on a federal constitutional analysis, it runs the risk of being overruled by the United States Supreme Court.
Trans-Literacy Within Eighth Amendment Jurisprudence: De/Fusing Gender and Sex
Nikko Harada
The adjudication of transgender prisoners’ claims under the Eighth Amendment of the federal constitution implicates the constant struggles in modern constitutional law to search for an appropriate balance between the need to protect individual autonomy while allowing states to regulate in furtherance of legitimate societal interests. Although the Eighth Amendment promises an evolving standard of decency in a civilized society, it fails to recognize the multiplicity of gender identities. Other legal bases may provide the flexibility necessary to truly recognize transgender prisoners' claims of gender identity. A right to self-identified gender should be interpreted as part of the essential right to autonomous personhood, an inherent civil right to define one’s self.
The Unstated Tension in Albuquerque Rape Crisis Center v. Blackmer: A Divergence Between Formalism and Functionalism
Simona Martinez-McConnell
In Albuquerque Rape Crisis Center v. Blackmer, the New Mexico Supreme Court, in a four to one vote, held the Victim Counselor Confidentiality Act, which protects communication between a rape victim and a rape crisis counselor, to be a valid evidentiary privilege. The Court’s holding, while not overruling previous New Mexico case law outright, advocated the principle that the legislature could share the power to proscribe rules of practice and procedure with the Supreme Court. The majority invoked a functionalist analysis to reach its holding, articulating that, although a statutory privilege is not binding on the court, it may be recognized if it is consistent with a court rule. Consequently, the majority in Blackmer asserted judicial supremacy over rules of practice and procedure. Conversely, Chief Justice Bosson, in his dissent, employed a formalistic rationale stating that the New Mexico Constitution, Supreme Court Rule, and case law denote that the power to proscribe rules of practice and procedure vests exclusively within the judiciary. Chief Justice Bosson argued that to allow the judiciary and legislature to exercise this power in concert violates separation of powers principles.
This Note examines the debate between formal-judicial exclusivity and functional-judicial supremacy with respect to the promulgation of rules of practice and procedure in New Mexico. Specifically, the note analyzes how this debate provides the background for the majority’s and dissent’s rationale. Although the majority’s decision allows for the legislature to create rules affecting court practice and procedure, the note reasons that ambiguities in the majority’s opinion signify that this debate is far from settled.
Spencer v. Health Force, Inc.: One Step Forward, Two Steps Back for New Mexico Tort Jurisprudence?
Deana M. Bennett
In Spencer v. Health Force, Inc., the New Mexico Supreme Court held that a home health care agency owed a duty of care to one of its patients despite the existence of a flawed statute. This Note begins with a review of the underlying principles of New Mexico tort law, focusing specifically on the foreseeable plaintiff, duty, and negligent hiring and retention, as well as the justifiable violation doctrine. This Note then examines the New Mexico Supreme Court’s application of those elements to the conduct of the health care agency in Spencer. While the New Mexico Supreme Court correctly held that the health care agency owed the plaintiff a duty of ordinary care despite the existence of the flawed statute, the supreme court could have held the defendant health care agency to a higher standard of care if the court had performed a more thorough analysis of the justifiable violation doctrine. The court would have been more faithful to the legislative intent of providing additional legal protection to disabled patients if the court had conducted a more thorough analysis of the justifiable violation doctrine.
Advancing the Arts Community in New Mexico Through Moral Rights and Droit de Suite: The International Impetus and Implications of Preemption Analysis
Channah Farber
As a means of protecting and encouraging the significant arts community in New Mexico, intellectual property laws are necessary not only at the federal level, but also at the state level. This Comment argues that New Mexico should expand the existing intellectual property rights it affords artists and uses preemption analysis to identify potential areas of expansion. Specifically, this Comment suggests that New Mexico should consider expanding its moral rights law and should consider establishing a resale royalty law or "droit de suite." The Comment begins with a background of moral rights and droit de suite and explains the role the Berne Convention had in introducing these rights in the United States. The Comment then examines moral rights and droit de suite in the United States on both the federal and state levels. The United States enacted a federal moral rights law and may soon enact a federal resale royalty law in response to a recent European Union directive. Accordingly, this Comment analyzes the impact that federal moral and resale royalty rights laws have or may potentially have on New Mexico and discusses the opportunities this state has to supplement federal law in the areas of moral and resale royalty rights law that are not subject to preemption.
