Notes to Decisions

Generally.

Notice of a hearing to consider permanent listing of a cultural property on the state historic register satisfied due process since notice was provided by general publication and personal notices to property owners located through tax records, and the fact that some property owners did not receive personal notice did not constitute a denial of due process. Rayellen Res., Inc. v. N.M. Cultural Props. Review Comm., 2014-NMSC-006, 319 P.3d 639, 2014 N.M. LEXIS 40 (N.M. 2014).

Phrases “without proper parental care and control . . . because of the faults or habits of the child’s parent”, “unable to discharge his responsibilities . . . because of . . . [a] mental disorder”, and “at risk of suffering serious harm” in Paragraphs B and E of 32A-4-2 NMSA 1978 provide adequate standards to guide the New Mexico children, youth, and families department in its enforcement activities and do not invite or encourage arbitrary enforcement; therefore, they do not violate the Fourteenth Amendment based on vagueness. State ex rel. Children, Youth & Families Dep't v. Shawna C., 2005-NMCA-066, 137 N.M. 687, 114 P.3d 367, 2005 N.M. App. LEXIS 54 (N.M. Ct. App. 2005).

Evidence seized through use of invalid search warrant was suppressed; good-faith exception to the exclusionary rule was incompatible with the guarantees of N.M. Const. art II § 10, and thus, the exception was not recognized in New Mexico. State v. Gutierrez, 1993-NMSC-062, 116 N.M. 431, 863 P.2d 1052, 1993 N.M. LEXIS 342 (N.M. 1993).

After the State violated Rule 11-615 NMRA and could not introduce previously undisclosed evidence, the trial court dismissed indictments against defendants for embezzlement or larceny over $ 250.00, violations of 30-16-8, 30-16-1, and 30-28-2 NMSA 1978, because the State could not prove the value of the thing that was stolen, as was required by Rules 14-1601 and 14-1641 NMRA 1978. Because the trial court adjudicated defendants’ innocence, the state’s appeal was dismissed on double jeopardy grounds under the Fifth and Fourteenth Amendments, as codified by N.M. Const. art VI § 15, and 39-3-3C NMSA 1978. State v. Archuleta, 1991-NMCA-032, 112 N.M. 55, 811 P.2d 88, 1991 N.M. App. LEXIS 142 (N.M. Ct. App.), cert. denied, 112 N.M. 21, 810 P.2d 1241, 1991 N.M. LEXIS 152 (N.M. 1991).

During defendant’s felony murder trial, he did not receive ineffective assistance of counsel in violation of U.S. Const. amends. V §§ VI, or XIV, or N.M. Const. art. II, §§ XIV or XVIII; there was no showing whatsoever that trial counsel did not use a normal and customary degree of skill under the circumstances of the case, and the trial did not result in a sham, farce, or mockery of justice. State v. Trivitt, 1976-NMSC-004, 89 N.M. 162, 548 P.2d 442, 1976 N.M. LEXIS 794 (N.M. 1976).

Distinction between wholesalers of alcoholic liquors and beverages and wholesalers of other commodities with respect to the taxation of the alcohol wholesalers’ gross receipts as contemplated in former 72-16-4.4, 1953 Comp. does not violate U.S. Const. amends. XIV or N.M. Const. art II § 18 because the distinction is founded upon pertinent and real differences between the two groups in order to achieve permissible ends. Michael J. Maloof & Co. v. Bureau of Revenue, 1969-NMSC-100, 80 N.M. 485, 458 P.2d 89, 1969 N.M. LEXIS 1657 (N.M. 1969).

Inmate’s guilty pleas to armed robbery were not involuntary; the mere failure of police to advise him of his rights to counsel and to remain silent, without a showing of prejudice, constituted no basis for relief. State v. Bryant, 1968-NMCA-081, 79 N.M. 620, 447 P.2d 281, 1968 N.M. App. LEXIS 506 (N.M. Ct. App. 1968).

Inmate’s guilty pleas to armed robbery were not involuntary; he received effective assistance of counsel because he was represented by an attorney when he entered the pleas and the record did not indicate that he had inadequate time to confer with the attorney or that either he or his attorney requested additional time. State v. Bryant, 1968-NMCA-081, 79 N.M. 620, 447 P.2d 281, 1968 N.M. App. LEXIS 506 (N.M. Ct. App. 1968).

Where a taxpayer’s property, which was situated in New Mexico, earned rentals which were paid to the taxpayer and the taxpayer enjoyed protection, opportunities, and benefit from the New Mexico, the tax on the property was not a violation of the taxpayer’s due process rights because it was a proper and reasonable exaction in return for that protection and those opportunities and the benefits. Besser Co. v. Bureau of Revenue, 1964-NMSC-169, 74 N.M. 377, 394 P.2d 141, 1964 N.M. LEXIS 2236 (N.M. 1964).

Refusal of the city police to permit defendant to contact his own attorney following booking, by reason of a regulation then in effect, but later dropped, that they would not permit a prisoner arrested for intoxication to consult an attorney for four hours after arrest and defendant’s assertion that he was entitled to be treated for his wounds by his own doctor, though he received medical treatment within 30 minutes of reaching police headquarters, were held to not be prejudicial to defendant’s constitutional rights to due process and equal protection under the laws under N.M. Const. art II § 18 and U.S. Const. amend. 14, § 1. Albuquerque v. Patrick, 1957-NMSC-084, 63 N.M. 227, 316 P.2d 243, 1957 N.M. LEXIS 960 (N.M. 1957).

Annexation.

None of the three methods of annexation provided for by former 14-7-1, 1953 Comp. (now 3-7-1 NMSA 1978) requires an election, and specifically the petition method outlined in former 14-7-17, 1953 Comp. (now 3-7-17 NMSA 1978) does not implicate a fundamental right and is not subject to strict scrutiny in an equal protection challenge pursuant to the U.S. Const. amends. XIV. Torres v. Capitan, 1978-NMSC-065, 92 N.M. 64, 582 P.2d 1277, 1978 N.M. LEXIS 956 (N.M. 1978).

Antipsychotic drug treatment.

Supreme Court of New Mexico adopts the four-factor Sell test as the appropriate due process standard to determine whether appropriate circumstances exist to support an order requiring a defendant to submit to unwanted antipsychotic drug treatment solely for the purpose of establishing the defendant’s trial competency. State v. Cantrell, 2008-NMSC-016, 143 N.M. 606, 179 P.3d 1214, 2008 N.M. LEXIS 187 (N.M. 2008).

Trial court’s order requiring defendant to submit to involuntary antipsychotic drug treatment for the sole purpose of establishing her competency to stand trial for murder did not violate defendant’s due process rights. State had an important interest, because if defendant was incompetent to stand trial, there would be no adjudication of her guilt or innocence. State v. Cantrell, 2008-NMSC-016, 143 N.M. 606, 179 P.3d 1214, 2008 N.M. LEXIS 187 (N.M. 2008).

Appeal.

Appellate court declined to address defendant’s equal protection, Sixth Amendment, and New Mexico constitutional claims, which were raised for the first time on his appeal from his convictions for kidnapping and criminal sexual penetration in the second degree, because no questions of fundamental error were involved, as required by 12-216(B)(2) NMRA 1978. There was substantial evidence to support defendant’s convictions, and there was no other basis for invoking the concept of fundamental error. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, 1993 N.M. App. LEXIS 160 (N.M. Ct. App. 1993).

Applicability.

Because probable cause was not needed for the school resource officer to search defendant, and because the search was reasonable under the circumstances, the denial of defendant’s motion to suppress was affirmed; the resource officer had reasonable suspicion when defendant refused to empty his pockets. In the Matter of Josue T., 1999-NMCA-115, 128 N.M. 56, 989 P.2d 431, 1999 N.M. App. LEXIS 85 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 251 (N.M. 1999).

Trial court properly dismissed county board members’ challenge of a voting resolution in which one member was the chair and voted only in the event of a tie. Resolution passed the rational basis test and did not violate the board members’ right to equal protection as guaranteed by U.S. Const. amends. XIV because the resolution allowed the business of county government to be conducted in an organized and efficient manner, which was reasonably related to a legitimate state interest. Pinnell v. Board of County Comm'rs, 1999-NMCA-074, 127 N.M. 452, 982 P.2d 503, 1999 N.M. App. LEXIS 44 (N.M. Ct. App. 1999).

Application of the Fourth Amendment to the states is through the Fourteenth Amendment. State v. Dawson, 1999-NMCA-072, 127 N.M. 472, 983 P.2d 421, 1999 N.M. App. LEXIS 67 (N.M. Ct. App. 1999).

Assault and battery charges against defendant should not have been dismissed because there was insufficient evidence of prosecutorial vindictiveness such that defendant’s right to due process under the Fourteenth Amendment was violated. State v. Brule, 1999-NMSC-026, 127 N.M. 368, 981 P.2d 782, 1999 N.M. LEXIS 160 (N.M. 1999).

Defendant’s double jeopardy rights under the Fourth Amendment applicable to the states under the Fourteenth Amendment were violated where he began serving a 90-day sentence upon his conviction for two counts of fraudulent use of a credit card and his sentence was enhanced by eight years in a subsequent habitual offender hearing. Defendant’s reasonable expectation in the finality of the length and structure of the underlying sentence existed regardless of whether the sentence was ultimately enhanced or that the underlying sentence had not been reduced to writing. State v. Porras, 1999-NMCA-016, 126 N.M. 628, 973 P.2d 880, 1998 N.M. App. LEXIS 183 (N.M. Ct. App. 1998).

Where a city requested that a hearing officer recuse himself, although the city was not a “person,” within the meaning of U.S. Const. amends. XIV, the city was entitled to a fair hearing by an unbiased hearing officer under the Albuquerque Merit System Ordinance, adopted pursuant to 3-13-4 NMSA 1978; therefore, the court applied the “objective appearance of fairness” test, under which the inquiry was whether, in the natural course of events, there was an indication of a possible temptation to an average person sitting as a judge to try the case with bias for or against any issue presented. City of Albuquerque v. Chavez, 1997-NMCA-054, 123 N.M. 428, 941 P.2d 509, 1997 N.M. App. LEXIS 43 (N.M. Ct. App. 1997).

Where state officials have allegedly violated state law or administrative procedures, such violations do not ordinarily rise to the level of a constitutional deprivation. Moongate Water Co. v. State, 1995-NMCA-084, 120 N.M. 399, 902 P.2d 554, 1995 N.M. App. LEXIS 83 (N.M. Ct. App. 1995).

The competency statutes, 39-9-1 et seq. NMSA 1978 do not deprive a defendant of due process and equal protection because although they do not provide all the protections recommended by the American Bar Association, this in itself does not raise a constitutional issue; due process requires incompetent defendants to be treated differently than competent defendants because the conviction of an accused person while that person is legally incompetent violates due process. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, 1990 N.M. App. LEXIS 123 (N.M. Ct. App. 1990).

Defendant’s convictions for trafficking in a controlled substance and conspiracy to traffic in a controlled substance were affirmed where his confession was voluntary and did not violate his due process rights under U.S. Const. amends. XIV because there was no police activity that coerced defendant into giving his statement. State v. Vasquez, 1990-NMCA-020, 109 N.M. 720, 790 P.2d 517, 1990 N.M. App. LEXIS 17 (N.M. Ct. App. 1990).

Bank’s procedural due process rights under U.S. Const. amends. V §§ and XIV and N.M. Const. art II § 18 were not violated when a trial court allowed creditors to amend their complaint to conform to the evidence and to reflect a prima facie tort claim against the bank because the trial court’s ruling was not an abuse of discretion and the bank was not denied due process; the bank participated in a full trial with every opportunity to be heard. Schmitz v. Smentowski, 1990-NMSC-002, 109 N.M. 386, 785 P.2d 726, 1990 N.M. LEXIS 22 (N.M. 1990).

Section 30-22-1D NMSA 1978 would offend U.S. Const. amends. I §§ and XIV and N.M. Const. art II § 17 if the prohibition therein against abusing police officers extended to speech that did not consist of “fighting words.” State v. Wade, 1983-NMCA-084, 100 N.M. 152, 667 P.2d 459, 1983 N.M. App. LEXIS 753 (N.M. Ct. App. 1983).

Comments of a university professor to the board of regents at one of the board’s meetings were not of the content type that “free speech” protections of the First Amendment were intended to foster; thus, where the professor failed to establish, in a cause of action brought under 42 U.S.C.S. § 1983, a deprivation of a liberty interest protected by the Fourteenth Amendment, the professor also failed to establish a right to a termination hearing for that reason. Lux v. Board of Regents, 1980-NMCA-164, 95 N.M. 361, 622 P.2d 266, 1980 N.M. App. LEXIS 969 (N.M. Ct. App. 1980), cert. denied, 454 U.S. 816, 102 S. Ct. 92, 70 L. Ed. 2d 84, 1981 U.S. LEXIS 3108 (U.S. 1981).

Revocation of a broker’s real estate license by the New Mexico real estate commission was invalid where the broker was denied procedural due process as a result of the commission’s failure to provide the broker with proper notice; embodied in the term “procedural due process” was reasonable notice and opportunity to be heard and present any claim or defense under U.S. Const. amends. V §§ and XIV. McCoy v. New Mexico Real Estate Comm'n, 1980-NMSC-081, 94 N.M. 602, 614 P.2d 14, 1980 N.M. LEXIS 2705 (N.M. 1980).

A juvenile was properly certified for trial as an adult in accordance with former 13-8-27, 1953 Comp. and the statute was not unconstitutionally vague to the point where it denied the juvenile due process or equal protection under N.M. Const. art II § 18 or U.S. Const. amends. XIV. State v. Jimenez, 1972-NMSC-073, 84 N.M. 335, 503 P.2d 315, 1972 N.M. LEXIS 906 (N.M. 1972).

Although former 13-1-16, 1953 Comp. stated that the amount of assistance to the needy was to be sufficient to provide a reasonable subsistence compatible with decency and health, the department of heath and social services did not deprive an AFDC recipient of equal protection of the law in providing financial assistance for shelter in an amount insufficient to cover her unmet need for housing. Padilla v. Health & Social Servs. Dep't, 1972-NMCA-103, 84 N.M. 140, 500 P.2d 425, 1972 N.M. App. LEXIS 820 (N.M. Ct. App. 1972).

Former 40A-16-1, 1953 Comp. was apparently enacted to protect the ownership of livestock, to prevent a kind of larceny that was peculiarly easy to commit and difficult to discover and punish, and to protect the important industry of stock raising, and as such is not unconstitutional in violation of the equal protection clauses of U.S. Const. amends. XIV §§ 1 or N.M. Const. art II § 18. State v. Pacheco, 1969-NMCA-127, 81 N.M. 97, 463 P.2d 521, 1969 N.M. App. LEXIS 524 (N.M. Ct. App. 1969).

Former 40A-16-1, 1953 Comp. (now 30-16-1 NMSA 1978), which makes it a crime to steal livestock, does not violate the equal protection clauses of U.S. Const. amends. XIV §§ 1 or N.M. Const. art II § 18 by creating an unconstitutional classification of those who steal livestock because the classification of persons who steal livestock is reasonable, is based upon real differences bearing a proper relationship to the classification, and requires uniform treatment of all who come within the class. State v. Pacheco, 1969-NMCA-127, 81 N.M. 97, 463 P.2d 521, 1969 N.M. App. LEXIS 524 (N.M. Ct. App. 1969).

U.S. Const. amends. V, in its direct application to the federal government, and in its bearing on the states by reason of the U.S. Const. amends. XIV, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt. State v. Miller, 1966-NMSC-041, 76 N.M. 62, 412 P.2d 240, 1966 N.M. LEXIS 2599 (N.M. 1966).

Former § 41-4519, 1941 Comp. (now 30-16-8 NMSA 1978) makes it a crime for a person having property of another in his possession, which he believes to be his own, to sell it or otherwise appropriate it to his own use, and under its terms, there is no defense for simple conversion, and to make an act, innocent itself, a crime, and criminals of those who might perchance fall within its interdiction, is inconsistent with law. State v. Prince, 1948-NMSC-003, 52 N.M. 15, 189 P.2d 993, 1948 N.M. LEXIS 615 (N.M. 1948).

Application to states.

While former 40A-15-3, 1953 Comp. (now 30-15-4 NMSA 1978) made it a crime to deface churches, it did not advance religion or violate the establishment clauses of U.S. Const. amends. I, as made applicable to the states pursuant to U.S. Const. amends. XIV. State v. Vogenthaler, 1976-NMCA-030, 89 N.M. 150, 548 P.2d 112, 1976 N.M. App. LEXIS 564 (N.M. Ct. App. 1976).

Assessments.

Because a domestic corporation’s subsidiaries with Subpart F income remained part of its unitary business, and the federal government required inclusion of the corporation’s Subpart F income in the corporation’s gross income under the unitary business principle, New Mexico’s assessments on business income did not violate the Constitutions of the United States or New Mexico, were fairly apportioned, and taxed a fair portion of the corporation’s income. NCR Corp. v. Taxation & Revenue Dep't, 1993-NMCA-060, 115 N.M. 612, 856 P.2d 982, 1993 N.M. App. LEXIS 54 (N.M. Ct. App. 1993), cert. denied, 115 N.M. 677, 857 P.2d 788, 1993 N.M. LEXIS 194 (N.M. 1993), cert. denied, 512 U.S. 1245, 114 S. Ct. 2763, 129 L. Ed. 2d 877, 1994 U.S. LEXIS 5052 (U.S. 1994).

There was no arbitrary presumption that the market value of a previous year’s potash production was equivalent to the market value as determined by comparable sales. Thus, the state’s valuation of a potash mine under 7-36-24 NMSA 1978 did not violate the due process clause of the fourteenth amendment. National Potash Co. v. Property Tax Div. of Taxation & Revenue Dep't, 1984-NMCA-055, 101 N.M. 404, 683 P.2d 521, 1984 N.M. App. LEXIS 661 (N.M. Ct. App. 1984).

In a power and water company’s challenge to the validity of a tax deed and the assessment upon which it was based, the assessment did not constitute extraterritorial taxation where the irrigation works of private companies were taxable at their situs. San Luis Power & Water Co. v. State, 1953-NMSC-096, 57 N.M. 734, 263 P.2d 398, 1953 N.M. LEXIS 1048 (N.M. 1953).

When a nonresident places his property in the state, subjects it to taxation, and returns it in accordance with law, he is a “person subject to taxation” in the state and, when found in the state, can be forced to discharge the same duty and obligation as a resident. State v. Baker, 1930-NMSC-050, 35 N.M. 55, 289 P. 801, 1930 N.M. LEXIS 57 (N.M.), cert. denied, 282 U.S. 807, 51 S. Ct. 105, 75 L. Ed. 724, 1930 U.S. LEXIS 52 (U.S. 1930).

There exists full and ample machinery for a taxpayer to register any objection or protest against the amount of an assessment, rate, or any other matter or thing touching the justness or validity of a tax on his property. State v. Baker, 1930-NMSC-050, 35 N.M. 55, 289 P. 801, 1930 N.M. LEXIS 57 (N.M.), cert. denied, 282 U.S. 807, 51 S. Ct. 105, 75 L. Ed. 724, 1930 U.S. LEXIS 52 (U.S. 1930).

In a city’s action to foreclose a lien upon property, which resulted from the property owner’s failure to pay an assessment for the sprinkling of streets abutting such property, the appellate court held that the city’s ordinance providing for such assessment did not violate the Fourteenth Amendment of the Constitution of the United States, even though the assessment was levied under the “front foot rule” instead of according to benefits accruing to the property assessed. Roswell v. Bateman, 1915-NMSC-011, 20 N.M. 77, 146 P. 950, 1915 N.M. LEXIS 9 (N.M. 1915).

Bar admission.

Requiring proof of good moral character for an applicant who sought admission to the New Mexico Bar did not violate the applicant’s right to equal protection where the applicant had not shown any difference in the way the Supreme Court of New Mexico’s rules treated bar applicants and attorneys in disciplinary proceedings. In re Oppenheim, 2007-NMSC-022, 141 N.M. 596, 159 P.3d 245, 2007 N.M. LEXIS 242 (N.M. 2007).

Batson inquiry.

—Sufficiency of exclusion explanation.

Where the State used five out of five peremptory challenges against Hispanic prospective jurors, its explanations did not pass Batson scrutiny because of the presence of several Anglo jurors whose characteristics were comparable to those relied upon to exclude the Hispanic jurors, such as age and level of education. State v. Guzman, 1994-NMCA-149, 119 N.M. 190, 889 P.2d 225, 1994 N.M. App. LEXIS 164 (N.M. Ct. App. 1994), cert. denied, 119 N.M. 20, 888 P.2d 466, 1995 N.M. LEXIS 26 (N.M. 1995).

—Cognizable group.

Hispanics are a cognizable group for purposes of a Batson inquiry. State v. Guzman, 1994-NMCA-149, 119 N.M. 190, 889 P.2d 225, 1994 N.M. App. LEXIS 164 (N.M. Ct. App. 1994), cert. denied, 119 N.M. 20, 888 P.2d 466, 1995 N.M. LEXIS 26 (N.M. 1995).

Burden of proof.

In petitioner employee’s action against respondent employer, a city fire department, burden of proof requiring the employee to prove by a preponderance of the evidence in post-termination proceedings before the city personnel board that there was no just cause to terminate his employment violated the employee’s right to due process under U.S. Const. amends. XIV and under N.M. Const. art II § 18. City of Albuquerque v. Chavez, 1998-NMSC-033, 125 N.M. 809, 965 P.2d 928, 1998 N.M. LEXIS 351 (N.M. 1998).

Challenges.

State’s use of its peremptory challenges during jury selection in defendant’s trial for kidnapping and criminal sexual penetration in the second degree did not violate the Equal Protection Clause of U.S. Const. amends. XIV, U.S. Const. amends. VI, or the New Mexico Constitution because defendant did not make his objection until after the venire panel had been dismissed and the petit jury sworn and preliminarily instructed. The objection was untimely because it was too late to cure any alleged error. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, 1993 N.M. App. LEXIS 160 (N.M. Ct. App. 1993).

Child abuse.

When there is an increased risk of an erroneous deprivation of a parent’s interest without the appointment of an expert, an indigent parent is entitled to the appointment of an expert witness at the State’s expense in an abuse and neglect proceeding. State ex rel. Children Youth & Families Dep't v. Kathleen D.C. (In re Damion M.C.), 2007-NMSC-018, 141 N.M. 535, 157 P.3d 714, 2007 N.M. LEXIS 193 (N.M. 2007).

Defendant who used cocaine while pregnant was not guilty of felony child abuse under 30-6-1D NMSA 1978, since an unborn fetus was not included in the definition of a “person” under 30-1-12E NMSA 1978. Defendant could not have reasonably known that her conduct was criminal, and judicially expanding the statutory definition of a “person” would violate her due process rights. State v. Martinez, 2006-NMCA-068, 139 N.M. 741, 137 P.3d 1195, 2006 N.M. App. LEXIS 39 (N.M. Ct. App. 2006), cert. quashed, 141 N.M. 763, 161 P.3d 260, 2007 N.M. LEXIS 210 (N.M. 2007).

Children.

The enactment of former 22-5-4.1 NMSA 1978, by the Legislature of the State of New Mexico exceeds the scope of legislative power as circumscribed by the First and Fourteenth Amendments of the United States Constitution; former 22-5-4.1 NMSA 1978, and its implementation in the Las Cruces Public Schools violates the First Amendment of the United States Constitution; former 22-5-4.1 NMSA 1978, and its implementation in the Las Cruces Public Schools violates Article II, Section 11 of the Constitution of the State of New Mexico in that it gives a preference by law to a particular mode of worship. Duffy v. Las Cruces Public Schools, 557 F. Supp. 1013, 1983 U.S. Dist. LEXIS 19341 (D.N.M. 1983).

Decree terminating a mother’s parental rights was overturned because it was based on a decree of neglect, which was found to be void because the mother had not been notified of her right to counsel at the neglect hearing. The nature of the parental right has been characterized as a liberty protected by the due process clause of U.S. Const. amends. XIV. State ex rel. Department of Human Servs. v. Perlman, 1981-NMCA-076, 96 N.M. 779, 635 P.2d 588, 1981 N.M. App. LEXIS 750 (N.M. Ct. App. 1981).

With respect to a man who had been charged with violating former 40A-6-2, 1953 Comp. (now 30-6-2 NMSA 1978) by abandoning his children, thereby leaving them dependent on public support, (1) for purposes of the man’s claim of sex discrimination, the statute as then phrased applied equally to men and women when the charge involved minor children; and (2) the public-support provision, as then phrased, did not violate due process or equal protection under the U.S. Const. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, 1974 N.M. App. LEXIS 643 (N.M. Ct. App.), cert. denied, 86 N.M. 189, 521 P.2d 1030, 1974 N.M. LEXIS 1384 (N.M. 1974).

Because the evidence established the intent on the part of certain defendant teachers, nuns and brothers in Roman Catholic parochial schools that were supported by public funds within a public school system, to violate former § 55-1102, 1941 Comp., which forbade the use of any sectarian or denominational books in the schools or the teaching of sectarian doctrine in the schools, the Supreme Court of New Mexico determined that the certain defendant teachers were forever barred from teaching in the public schools, that religious garb and religious insignia could not be worn by teachers while teaching in public schools, and that a church could not be permitted to operate a school system within the public school system; the schools in question violated the separation of church and state provisions of U.S. Const. amends. I §§ XIV and the provisions of N.M. Const. art IX § 14, art. XII, §§ 3, 9, and art. XXI, § 4. Zellers v. Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949, 1951 N.M. LEXIS 773 (N.M. 1951).

Clemency.

Because there is an opportunity for an innocent person to be pardoned in New Mexico, the incarceration of an individual who is actually innocent does not violate the Eighth or Fourteenth Amendments to the federal constitution. Montoya v. Ulibarri, 2007-NMSC-035, 142 N.M. 89, 163 P.3d 476, 2007 N.M. LEXIS 312 (N.M. 2007).

Collateral estoppel.

Where a defendant was not guilty due to insanity in an earlier trial, defendant’s conviction in a later trial, which was based on events that occurred 16 hours before the events in the first trial, was barred by collateral estoppel, under the U.S. Const. amends. V §§ and XIV and N.M. Const. art II § 15. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, 1975 N.M. App. LEXIS 646 (N.M. Ct. App.), cert. denied, 87 N.M. 450, 535 P.2d 657, 1975 N.M. LEXIS 816 (N.M. 1975).

Compliance.

Defendant’s Fourteenth Amendment rights were not violated and his petition for post-conviction relief was properly denied where his court-appointed trial counsel did not file an order of the district court granting defendant an appeal of his conviction for second-degree murder as required . Morales v. Cox, 1965-NMSC-111, 75 N.M. 468, 406 P.2d 177, 1965 N.M. LEXIS 1594 (N.M. 1965).

Trial court’s decree declaring a company dissolved as a corporation for failure to file annual reports as required by former 54-236, 1953 Comp. was error because as applied to the company, denied the company equal protection of the law in violation of U.S. Const. amends. XIV and N.M. Const. art II § 18 and impaired the obligation of contracts in violation of U.S. Const. art I § 10 and N.M. Const. art II § 19. State v. Sunset Ditch Co., 1944-NMSC-004, 48 N.M. 17, 145 P.2d 219, 1944 N.M. LEXIS 19 (N.M. 1944).

Construction.

Personal representative of decedent who died while applying for school security officer position could not maintain suit against the security company and the school board under the New Mexico tort claims act because the security company and the school board enjoyed immunity; immunity was not waived under 41-4-12 NMSA 1978 because N.M. Const. art II § 4 did not provide waiver where negligent action was alleged by a law enforcement officer or agency although more protection was provided by the New Mexico constitution than U.S. Const. amends. XIV. The due process clause was not implicated by mere negligent actions. Tafoya v. Bobroff, 865 F. Supp. 742, 1994 U.S. Dist. LEXIS 14211 (D.N.M. 1994), aff'd, 74 F.3d 1250, 1996 U.S. App. LEXIS 39206 (10th Cir. N.M. 1996).

The issue of whether a defendant has been denied his right to due process under U.S. Const. amends. XIV and N.M. Const. art II § 18 by reason of preindictment delay involves the same test; the Due Process Clause of U.S. Const. amends. V would require dismissal of the indictment if it were shown at trial that the preindictment delay caused substantial prejudice to the defendant’s rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. Courts are required to consider the reasons for the delay as well as prejudice to the accused. State v. Gonzales, 1990-NMCA-040, 110 N.M. 218, 794 P.2d 361, 1990 N.M. App. LEXIS 45 (N.M. Ct. App. 1990), aff'd, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630, 1991 N.M. LEXIS 59 (N.M. 1991).

U.S. Const. amends. V and U.S. Const. amends. XIV forbid comment by the prosecution on the accused’s silence. State v. Miller, 1966-NMSC-041, 76 N.M. 62, 412 P.2d 240, 1966 N.M. LEXIS 2599 (N.M. 1966).

There neither exists nor was anticipated that condition of public health, safety, morals, or preponderant opinion making former § 41-4519, 1941 Comp. (now 30-16-8 NMSA 1978) immediately necessary for the public welfare, and no additional power is conferred by the statute, unless it has for its purpose to embrace within its ambit the guilty and innocent alike, which would afford no reasonable ascertainable standard of guilt and thus make it too vague and uncertain to be enforced. State v. Prince, 1948-NMSC-003, 52 N.M. 15, 189 P.2d 993, 1948 N.M. LEXIS 615 (N.M. 1948).

1919 N.M. Laws ch. 93, p. 182, which assess an excise tax on gasoline sold or used, can be applied to gasoline sold by an oil company in its business without violating U.S. Const. amend XIV or the commerce clause because of the divisible nature of the tax according to whether the sales or use is in domestic as opposed to interstate commerce. Bowman v. Continental Oil Co., 256 U.S. 642, 41 S. Ct. 606, 65 L. Ed. 1139, 1921 U.S. LEXIS 1548 (U.S. 1921).

Construction with other law.

Provisions of former 67-7-13M, 1953 Comp. (now 61-2-13 NMSA 1978), did not violate the Commerce Clause or the due process provisions of the Fourteenth Amendment and of N.M. Const. art II § 18, because the limitations under the statute reasonably related to preventing the deterioration in the quality of optometric services that a price war could have caused; the Commerce Clause’s regulation of interstate commerce did not preclude the state from reasonably exercising its police power in a way that had some indirect impact on interstate commerce and that did not conflict an area occupied by federal law. New Mexico Bd. of Examiners in Optometry v. Roberts, 1962-NMSC-053, 70 N.M. 90, 370 P.2d 811, 1962 N.M. LEXIS 1548 (N.M. 1962), aff'd, 374 U.S. 424, 83 S. Ct. 1759, 10 L. Ed. 2d 983, 1963 U.S. LEXIS 977 (U.S. 1963).

Contracts.

It was a violation of a telephone company’s due process rights under N.M. Const. art II § 18 and the U.S. Const. amends. XIV for a court to order it to accept a franchise offered by a town to operate within the town’s corporate limits and to use the streets, alleys, and public ways for constructing and maintaining its poles, wires, and equipment; the telephone company had been operating under a 99-year franchise that had been granted to it by the board of county commissioners prior to the town’s incorporation, and the franchise was a valid contract that the town could not disturb. Mountain States Tel. & Tel. Co. v. Belen, 1952-NMSC-053, 56 N.M. 415, 244 P.2d 1112, 1952 N.M. LEXIS 928 (N.M. 1952).

Conversations with jurors.

While U.S. Const. amends. VI §§ and XIV, as well as N.M. Const. art II § 14, and former NMSA 1978, Crim.P. Rule 47(a) (now Rule 5-612 NMRA), all entitled a defendant to be present at every stage of his trial, including the impaneling of the jury, a trial judge’s conversations with jurors outside the presence of defendant was a procedure invited by defense counsel and which did not prejudice defendant. State v. Henry, 1984-NMCA-040, 101 N.M. 277, 681 P.2d 62, 1984 N.M. App. LEXIS 644 (N.M. Ct. App. 1984).

Custody.

Where a mother’s parental rights in her children was terminated after a hearing that she was unable to attend because she had been deported, and the court and her counsel had been informed of the deportation, but the mother’s counsel did not request, and the trial court did not suggest, a continuance, the termination of parental rights violated the mother’s constitutionally protected due process right to custody of her children. State ex rel. Children, Youth, & Families Dept. v. Steven, 1999-NMCA-141, 128 N.M. 304, 992 P.2d 317, 1999 N.M. App. LEXIS 117 (N.M. Ct. App. 1999).

Evidence in a termination of parental rights case indicated that it was in the best interests of the children of a mother who was suffering from paranoid-type schizophrenia, with the probability of a bipolar personality disorder and low average to borderline intelligence, to be adopted by their grandfather, who had provided the only stable environment that the children had known, rather than to be placed in a permanent guardianship situation, and was therefore sufficient to allow the trial court to terminate the mother’s parental rights where the mother’s fundamental right to parent her children was not the only interest at stake in those proceedings, where the children had rights that were even more significant than the mother’s interest, and where the trial court was not constitutionally required to leave open the possibility that the mother could become able, at some undetermined point in the future, to parent the children adequately. State ex rel. Children, Youth & Families Dep't v. T.J., 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293, 1997 N.M. App. LEXIS 7 (N.M. Ct. App. 1997).

Damages.

In fraud action by purchasers of mobile home, Supreme Court of New Mexico held that, given the truly reprehensible behavior of a mobile home company, the relatively low compensatory damage award, and the intangible nature of the harm that the low income purchasers suffered, a substantial punitive damages award was appropriate; aside from the surviving Unfair Practices Act violations, several criminal statutes potentially applied to the fraudulent and deceitful conduct. Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, 140 N.M. 478, 143 P.3d 717, 2006 N.M. LEXIS 491 (N.M. 2006).

Where a buyer had no reason for leaving a broker out of a transaction other than to divert commissions, punitive damages awarded did not violate the Eighth or Fourteenth Amendments based on the degree of reprehensibility of the conduct, the modest punitive damages awarded, and the fact that the award given was smaller than the statutory ratio for similar conduct under 57-12-10B NMSA 1978. Bogle v. Summit Inv. Co., L.L.C., 2005-NMCA-024, 137 N.M. 80, 107 P.3d 520, 2005 N.M. App. LEXIS 2 (N.M. Ct. App. 2005).

Evidence that the insurer’s poor claims handling practices were in bad faith and that the insurer wilfully and wrongfully drew down on a letter of credit supported a punitive damage award of $500,000; the punitive damages awarded were not constitutionally disproportionate to the actual loss. Allsup's Convenience Stores, Inc. v. North River Ins. Co., 1999-NMSC-006, 127 N.M. 1, 976 P.2d 1, 1998 N.M. LEXIS 465 (N.M. 1998).

Defenses.

Despite the fact that a woman who drove her car into a family, killing one member and injuring two others, had a history of mental illness, a verdict of guilty but mentally ill, as permitted by 31-9-3 NMSA 1978, did not violate her rights under the due process clauses or the equal protection clauses of U.S. Const. amends. V, U.S. Const. amends. XIV, N.M. Const. art II § 14 or N.M. Const. art II § 18, nor did it constitute cruel and unusual punishment under U.S. Const. amends. VIII §§ and XIV or N.M. Const., arts. II, §§ 14, 18, and her sentence for murder was proper under 31-9-4 NMSA 1978; 31-9-3 NMSA 1978 as applied did not violate her constitutional rights either. State v. Neely, 1991-NMSC-087, 112 N.M. 702, 819 P.2d 249, 1991 N.M. LEXIS 330 (N.M. 1991).

Because the fair comment exemption and constitutional privilege protected a disputed advertisement, and the use of words in a loose pejorative sense was protected opinion under U.S. Const. amends. I, court properly granted summary judgment for a newspaper and others in a defense attorney’s action for libel. Marchiondo v. New Mexico State Tribune Co., 1981-NMCA-156, 98 N.M. 282, 648 P.2d 321, 1981 N.M. App. LEXIS 835 (N.M. Ct. App. 1981), cert. quashed, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 2948 (N.M. 1982).

Where, in an earlier trial, a defendant’s insanity, an affirmative defense under former 41-23-35, 1953 Comp. (repealed), was actually litigated, was absolutely necessary to a decision in that trial, and was decided in his favor, under the principle of collateral estoppel, which was embodied in the guaranty against double jeopardy in U.S. Const. amends. V and was applicable to the states under U.S. Const. amends. XIV, and which was also included in N.M. Const. art II § 15, his convictions arising out of events that occurred 16 hours before events underlying the earlier trial were barred by collateral estoppel. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, 1975 N.M. App. LEXIS 646 (N.M. Ct. App.), cert. denied, 87 N.M. 450, 535 P.2d 657, 1975 N.M. LEXIS 816 (N.M. 1975).

Deprivation of liberty.

In New Mexico, a parent has a privilege to use moderate or reasonable physical force, without criminal liability, when engaged in the discipline of his or her child. Discipline involves controlling behavior and correcting misbehavior for the betterment and welfare of the child; the physical force cannot be cruel or excessive if it is to be justified. The parent’s conduct is to be measured under an objective standard. State v. Lefevre, 2005-NMCA-101, 138 N.M. 174, 117 P.3d 980, 2005 N.M. App. LEXIS 90 (N.M. Ct. App. 2005).

Discovery denial.

Police lieutenant’s due process rights were not violated by denial of access to the disciplinary records of fellow police officers in his post-demotion hearing before the city’s grievance review board because he was afforded a full post-determination hearing on the record, with counsel, and he had a reasonable opportunity to present his case. Furthermore, the city had an interest in removing a police officer from a supervisory position to prevent him from engaging in future negligent conduct and dereliction of duty where public safety and the city’s liability would be at risk. Archuleta v. Santa Fe Police Dep't ex rel. City of Santa Fe, 2005-NMSC-006, 137 N.M. 161, 108 P.3d 1019, 2005 N.M. LEXIS 118 (N.M. 2005).

Distinguished felonies.

Former 40A-4-1A, 1953 Comp. (now 30-4-1 NMSA 1978), which permitted the jury to specify that defendant was guilty only of a second degree felony rather than a capital felony, did not deny defendant equal protection under the law, as provided for by U.S. Const. amend XIV. State v. Sharpe, 1970-NMCA-078, 81 N.M. 637, 471 P.2d 671, 1970 N.M. App. LEXIS 612 (N.M. Ct. App. 1970).

Double jeopardy.

It was clear from the different elements required that the offenses of tampering with evidence, conspiracy to commit tampering with evidence, and contributing to the delinquency of a minor were not the same offense as larceny or obstructing an officer under the Blockburger test; thus, the Double Jeopardy Clause was not implicated by the prosecution for those offenses in a separate proceeding in the district court. State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92, 2005 N.M. LEXIS 334 (N.M. 2005).

New Mexico supreme court limits the application of the jurisdictional exception to the double jeopardy clause in New Mexico, holding that the exception cannot be applied in the event of an acquittal of a lesser included offense; in addition, the prosecution of a greater offense over which an initial court lacked jurisdiction cannot include a lesser included offense for which a defendant was convicted. Finally, the exception will not apply in cases in which a successive prosecution violates the core concerns of the double jeopardy clause; otherwise, the exception would countenance the type of rehearsal of proof, and the accompanying risk of erroneous conviction, that is one of the chief evils double jeopardy seeks to prevent. State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92, 2005 N.M. LEXIS 334 (N.M. 2005).

Defendant’s plea in municipal court only two days after his arrest ensured that the state did not have the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. Thus, the second prosecution in the district court did not implicate any of the core concerns of double jeopardy; as a result, the jurisdictional exception precluded defendant from using double jeopardy as a sword to prevent a full and fair opportunity to convict him of the crimes he committed. State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92, 2005 N.M. LEXIS 334 (N.M. 2005).

Because the municipal court had no jurisdiction over felonies, such as the felony of theft of a credit card, and because municipal ordinances could not be inconsistent with state law, defendant’s conviction of larceny in the municipal court had to have been based on the theft of the purse and cash rather than on the theft of the credit card. Thus, the municipal court prosecution for larceny did not involve the same offense as the district court prosecution for theft of a credit card; therefore, there was no violation of defendant’s double jeopardy rights. State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92, 2005 N.M. LEXIS 334 (N.M. 2005).

Where defendant pled guilty to a criminal complaint charging him with, inter alia, driving while under the influence (DWI) and reckless driving, prosecution on an indictment charging him with vehicular homicide in that he killed a human being while operating a vehicle under the influence of intoxicating liquor violated the defendant’s double jeopardy rights under N.M. Const. art II § 15, and U.S. Const. amends. V §§ and XIV, because the reckless driving and DWI charges were lesser included offenses of the homicide by vehicle charge. STATE v. MANZANARES, 100 N.M. 621, 674 P.2d 511, 1983 N.M. App. LEXIS 755 (N.M. Ct. App. 1983).

Driver’s license.

Necessity for procedural due process applies to the suspension of one’s driver’s license by the state. Notice and opportunity for hearing are required by the Due Process Clause of the Fourteenth Amendment before termination of driving privileges, except in emergency situations; the process must be appropriate to the nature of the case. Albuquerque v. Juarez, 1979-NMCA-084, 93 N.M. 188, 598 P.2d 650, 1979 N.M. App. LEXIS 756 (N.M. Ct. App. 1979), overruled, State v. Herrera, 1991-NMCA-005, 111 N.M. 560, 807 P.2d 744, 1991 N.M. App. LEXIS 121 (N.M. Ct. App. 1991).

Administrative suspension of a driver’s license under 66-5-30 NMSA 1978 is not invalid because of failure to meet due process standards, where the notice of suspension sent under 66-2-11 NMSA 1978 is reasonably calculated to reach the intended recipient while not imposing an undue burden on the New Mexico Transportation Department, Motor Vehicle Division. Albuquerque v. Juarez, 1979-NMCA-084, 93 N.M. 188, 598 P.2d 650, 1979 N.M. App. LEXIS 756 (N.M. Ct. App. 1979), overruled, State v. Herrera, 1991-NMCA-005, 111 N.M. 560, 807 P.2d 744, 1991 N.M. App. LEXIS 121 (N.M. Ct. App. 1991).

Defendant’s conviction for driving with a suspended license was reversed because the notice given to defendant of the sentence did not comply with the due process requirements of the Fourteenth Amendment. The notice mailed by the state was returned unclaimed, defendant had no knowledge of the suspension, defendant did not avoid the notice, and it was not an undue burden to expect the New Mexico Motor Vehicle Division to attempt personal service. Albuquerque v. Juarez, 1979-NMCA-084, 93 N.M. 188, 598 P.2d 650, 1979 N.M. App. LEXIS 756 (N.M. Ct. App. 1979), overruled, State v. Herrera, 1991-NMCA-005, 111 N.M. 560, 807 P.2d 744, 1991 N.M. App. LEXIS 121 (N.M. Ct. App. 1991).

Due process.

Wife did not substantially comply with the requirements of 10-11-14.5A NMSA 1978 so as to require the Public Employees Retirement Association (PERA) to pay her benefits, and her right to survivor benefits was governed by the terms of the Public Employees’ Retirement Act (Act) and terminated when she failed to comply with the Act’s application requirements within one year of her husband’s death; the requirements of § 10-11-14.5(A) are reasonably related to the legitimate purposes of PERA and are, therefore, constitutional under U.S. Const. amends. XIV and N.M. Const. art II § 18. Martinez v. Public Emples. Ret. Ass'n, 2012-NMCA-096, 286 P.3d 613, 2012 N.M. App. LEXIS 71 (N.M. Ct. App. 2012), cert. quashed, 300 P.3d 1182, 2013 N.M. LEXIS 97 (N.M. 2013).

Due process protections of the state and federal constitutions, this provision and N.M. Const. art II § 18, as well as the language regarding judicial recusal in N.M. Const. art VI § 18, required the county commissioner to recuse herself from voting on an application for a zoning map amendment where she was a first cousin to the applicant; there was no reason to apply the constitutional prohibitions to judges but not to board members who were acting in an adjudicatory capacity. Los Chavez Cmty. Ass'n v. Valencia County, 2012-NMCA-044, 277 P.3d 475, 2012 N.M. App. LEXIS 16 (N.M. Ct. App. 2012).

Charges against defendant had to be reinstated where 66-8-120 NMSA 1978 clearly sets out that it is a crime for a person to aid and abet in a violation of the Motor Vehicle Code, and 66-8-101C NMSA 1978, vehicular homicide while under the influence of intoxicating liquor or drug, is part of the Motor Vehicle Code; § 66-8-120 provided fair notice that the conduct defendant engaged in could expose him to criminal prosecution. State v. Lovato, 2011-NMCA-065, 150 N.M. 39, 256 P.3d 982, 2011 N.M. App. LEXIS 16 (N.M. Ct. App.), cert. denied, 150 N.M. 666, 265 P.3d 717, 2011 N.M. LEXIS 222 (N.M. 2011).

In an abuse and neglect proceeding, a father argued that his rights under the Fourteenth Amendment were violated because the Fourteenth Amendment required the application of the exclusionary rule to a search of the father’s home; however, the father failed to preserve this argument for appeal because the father did not argue due process under the Fourteenth Amendment in his written motion to a district court or during the hearing on the motion. State ex rel. Children, Youth & Families Dep't. v. Michael T., 2007-NMCA-163, 143 N.M. 75, 172 P.3d 1287, 2007 N.M. App. LEXIS 139 (N.M. Ct. App. 2007).

Corporation’s arguments related to the composition of the New Mexico water control commission did not demonstrate a violation of due process where there was no evidence indicating that the commissioners had prejudged the case or that the corporation had made a sufficient showing that one commissioner’s participation denied it due process. Phelps Dodge Tyrone, Inc. v. N.M. Water Quality Control Comm'n, 2006-NMCA-115, 140 N.M. 464, 143 P.3d 502, 2006 N.M. App. LEXIS 113 (N.M. Ct. App.), cert. denied, 140 N.M. 542, 144 P.3d 101, 2006 N.M. LEXIS 460 (N.M. 2006), cert. denied, 140 N.M. 542, 144 P.3d 101, 2006 N.M. LEXIS 468 (N.M. 2006).

Portion of the Albuquerque Sex Offender Registration and Notification Act stating that sex offenders shall not acquire, or newly occupy any real property, acquire any real property by lease or otherwise or establish a place of lodging within 1000 feet of a school serves its intended purpose, to prevent sex offenders from newly occupying a residence within 1000 feet of a school, and is constitutional. The provision is rationally related to the city’s interest in protecting children from sex offenders by preventing them from living within 1000 feet of places where children congregate. ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215, 2006 N.M. App. LEXIS 53 (N.M. Ct. App. 2006).

Notification provisions of the Albuquerque Sex Offender Registration and Notification Act are constitutional, as they are rationally related to the city’s interest in allowing the public and authorities to identify sex offenders accurately, and to know their whereabouts. ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215, 2006 N.M. App. LEXIS 53 (N.M. Ct. App. 2006).

Registration provision of the Albuquerque Sex Offender Registration and Notification Act that requires registration for offenders with convictions of kidnapping or false imprisonment, without any sexual component, violates due process and is therefore unconstitutional. ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215, 2006 N.M. App. LEXIS 53 (N.M. Ct. App. 2006).

District court properly granted a city summary judgment on a former police officer’s due process claim brought pursuant to 42 U.S.C.S. § 1983 where the officer failed to show that the city’s reasons for firing him, i.e., he was involved in illegally obtaining satellite television, were pretextual given that no other officer under investigation for the same conduct was involved in reprogramming, obtaining illegally reprogrammed cards, or ordering cards from Canada. Salguero v. City of Clovis, 366 F.3d 1168, 2004 U.S. App. LEXIS 8931 (10th Cir. N.M. 2004), superseded by statute as stated in Porras v. Qwest Corp., No. 10-565 BB/WPL, 2011 U.S. Dist. LEXIS 157460 (D.N.M. May 9, 2011).

While a prosecutor’s questions, in attempting to impeach defendant’s testimony about when and why defendant stopped answering a police officer’s questions, did comment improperly on defendant’s invocation of defendant’s right to remain silent, the prosecutor’s statements when viewed in context did not prejudice defendant; there was substantial evidence of defendant’s guilt of vehicular homicide and there were other references to defendant’s invocation of defendant’s right to counsel without objection. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, 2003 N.M. App. LEXIS 66 (N.M. Ct. App.), cert. denied, 134 N.M. 179, 74 P.3d 1071, 2003 N.M. LEXIS 211 (N.M. 2003).

Any lack of notice to defendant of the trial court’s intention to make a finding of whether defendant’s crime of vehicular homicide was a serious violent offense under 33-2-34L(4) NMSA 1978 was not a violation of due process; defendant had an opportunity to be heard, and the finding only affected defendant’s ability to earn incarceration credit rather than affecting the length of defendant’s sentence. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, 2003 N.M. App. LEXIS 66 (N.M. Ct. App.), cert. denied, 134 N.M. 179, 74 P.3d 1071, 2003 N.M. LEXIS 211 (N.M. 2003).

Where a competing local exchange carrier (CLEC) claimed that the imposition of a costing docket rate, rather than the rate in its interconnection agreement with an incumbent local exchange carrier (ILEC) violated its rights to substantive due process, the CLEC had not alleged a protectible property interest and could not survive rational basis review. The CLEC showed nothing more than a unilateral expectation that the interim rate would apply indefinitely, but the CLEC did not have a protectible property interest in the interim rate after the commission set a permanent rate and even if the CLEC had established a fundamental property interest in the application of the interim rate for an indefinite period, the denial of that interest did not violate due process. e.spire Communs., Inc. v. Baca, 269 F. Supp. 2d 1310, 2003 U.S. Dist. LEXIS 11293 (D.N.M. 2003), aff'd, 392 F.3d 1204, 2004 U.S. App. LEXIS 26548 (10th Cir. N.M. 2004).

Mother’s due process rights were not violated when a district court denied a motion to continue a termination of parental rights proceeding; the district court attempted to ensure the mother’s participation in the proceedings, it was not in the best interest of the minor children to continue the proceedings indefinitely, and there was clear and convincing evidence to support the termination. State ex rel. Children, Youth & Families Dep't v. Mafin M. (In re Chance M.), 2003-NMSC-015, 133 N.M. 827, 70 P.3d 1266, 2003 N.M. LEXIS 172 (N.M. 2003).

Defendant’s due process rights were violated where the trial court’s intent to “put him in jail” for “the rest of his sentence” evinced an unequivocal, definite finding, made on the record before the revocation hearing, indicating that the trial judge prejudged defendant before defendant had an opportunity to be heard; on remand, a different judge had to preside over defendant’s hearing. State v. Orquiz, 2003-NMCA-089, 134 N.M. 157, 74 P.3d 91, 2003 N.M. App. LEXIS 45 (N.M. Ct. App. 2003).

Defendant’s right to due process was violated when his alleged violation of his probation was introduced by the prosecutor at the revocation hearing and defendant had not received notice of the alleged violation; it was undisputed that defendant did not receive notice of the alleged violation prior to the revocation hearing and his lack of notice prejudiced his ability to prepare for and to advance arguments at his revocation hearing. State v. Orquiz, 2003-NMCA-089, 134 N.M. 157, 74 P.3d 91, 2003 N.M. App. LEXIS 45 (N.M. Ct. App. 2003).

Defendant’s conviction for first-degree child abuse under 30-6-1C NMSA 1978 was reversed as violative of his due process right where the trial court apparently concluded that the State only had to prove ordinary civil negligence as an element of the offense. Defendant had a constitutional right to have the State prove each element of a criminal offense beyond a reasonable doubt, and the term “negligently” under 30-6-1C NMSA 1978 required a showing of criminal negligence. Lopez v. Williams, 59 Fed. Appx. 307, 2003 U.S. App. LEXIS 2996 (10th Cir. 2003).

The statutory language “as soon as practicable” in the life enhancement statute, 31-18-26B NMSA 1978 means that the life enhancement proceeding must be conducted without undue delay but there is no indication from the statutory language that the legislature intended to impose a specific time limitation on the commencement of life enhancement proceedings; thus, in a prosecution of defendant for criminal sexual penetration of a child, a trial court did not err by granting a continuance of the life enhancement proceeding against defendant under 31-18-25F NMSA 1978 based on defendant’s previous convictions for lewd acts on a child because defendant failed to demonstrate that he suffered actual prejudice in connection with the continuance of the life enhancement proceeding or that the delay violated his rights to due process or a speedy trial under U.S. Const. amends. V §§ VI, XIV and N.M. Const. art II § 14, 18. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62 P.3d 354, 2002 N.M. App. LEXIS 114 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 126, 61 P.3d 835, 2003 N.M. LEXIS 3 (N.M. 2003).

Federal agent’s promise to inform the United States Attorney about defendant’s cooperation with the federal investigation did not render his confession involuntary. State v. Sanders, 2000-NMSC-032, 2000-NMSC-032, 129 N.M. 728, 13 P.3d 460, 2000 N.M. LEXIS 387 (N.M. 2000).

New Mexico Capital Felony Sentencing Act does not violate the eighth and fourteenth amendments to the United States constitution or the New Mexico constitution because it does not constitute cruel and unusual punishment. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793, 1999 N.M. LEXIS 278 (N.M. 1999).

Trial judge’s comments during voir dire that implied that the legal system was determined by the whims of the Legislature rather than well-settled principles, his improper comments on the evidence, witness credibility, and the actions of defense counsel, and his statements urging the jury to consider the consequences of their verdict deprived defendant of a fair trial in violation of U.S. Const. amends. XIV and N.M. Const. art II § 18. State v. Henderson, 1998-NMSC-018, 125 N.M. 434, 963 P.2d 511, 1998 N.M. LEXIS 244 (N.M. 1998).

Right to due process does not include the right to a jury trial in termination of parental rights cases. State ex rel. Children, Youth & Families Dep't v. T.J., 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293, 1997 N.M. App. LEXIS 7 (N.M. Ct. App. 1997).

Although the Public Employees Retirement Act, 10-11-1 to 10-11-141 NMSA 1978, conferred property rights that vested upon accumulating the minimum earned service credits, those rights did not include the right to receive pension benefits exempt from tax, and the repeal of the tax exemption for such benefits did not violate N.M. Const. art II § 18 and 20 or U.S. Const. amends. V §§ and XIV, § 1. Pierce v. State, 1996-NMSC-001, 121 N.M. 212, 910 P.2d 288, 1995 N.M. LEXIS 406 (N.M. 1995).

32A-2-20 NMSA 1978, which provides a children’s court judge with the discretion to sentence a youthful offender as an adult, is not arbitrary or discriminatory and adequately provides for the elemental due process rights of the child. State v. Ernesto M. (In re Ernesto M.), 1996-NMCA-039, 121 N.M. 562, 915 P.2d 318, 1996 N.M. App. LEXIS 16 (N.M. Ct. App.), cert. denied, 121 N.M. 444, 913 P.2d 251, 1996 N.M. LEXIS 103 (N.M. 1996).

Where a school employee was suspended with pay until his arbitration hearing regarding his termination, the employee was not denied his due process rights because the hearing procedure was fundamentally fair and the employee received procedural safeguards. Board of Educ. v. Harrell, 1994-NMSC-096, 118 N.M. 470, 882 P.2d 511, 1994 N.M. LEXIS 360 (N.M. 1994).

Where a prison warden gave probationary correctional officers notice that they were being investigated for possible use and/or possession of marijuana, and each was given an opportunity to present his side of the story before a fact-finding committee, and each was represented by counsel before the committee, and each was given 10 days to appeal his dismissal, the officers were afforded sufficient procedural consideration and were not deprived of any liberty or property interest without due process in violation of U.S. Const. amends. XIV. Barreras v. New Mexico Corrections Dep't, 1992-NMSC-059, 114 N.M. 366, 838 P.2d 983, 1992 N.M. LEXIS 259 (N.M. 1992).

Defendant’s right to a speedy trial under U.S. Const., amend XIV and N.M. Const. art II § 18 was not violated by a seven month pre-indictment delay where defendant failed to demonstrate that he was prejudiced by the delay, which was due to investigative problems and limited resources. State v. Gonzales, 1990-NMCA-040, 110 N.M. 218, 794 P.2d 361, 1990 N.M. App. LEXIS 45 (N.M. Ct. App. 1990), aff'd, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630, 1991 N.M. LEXIS 59 (N.M. 1991).

Trial court violated N.M. Const. art VI § 2 and the due process and equal protection clauses of U.S. Const. amends. XIV by conditioning an indigent defendant’s right to appeal his conviction for driving while intoxicated on his compliance with the bond requirement of 35-15-7A NMSA 1978. Mitchell v. County of Los Alamos, 1991-NMSC-062, 112 N.M. 215, 813 P.2d 1013, 1991 N.M. LEXIS 242 (N.M. 1991).

Actions to terminate parental rights must be conducted with scrupulous fairness, including the providing of fair notice to the parent(s), and such a proceeding should be conducted openly, with the widest possible disclosure of the State’s intentions given to all concerned parties so that a parent’s custodial rights may be adjudicated only after full notice to the parent and to the parent’s legal representative in any case pertaining to the same child. In re Ronald A., 1990-NMSC-071, 110 N.M. 454, 797 P.2d 243, 1990 N.M. LEXIS 272 (N.M. 1990).

Father was denied procedural due process in a proceeding to terminate his parental rights where (1) the State failed to give notice to the attorney appointed to protect the father’s rights in a child abuse and neglect action that it was simultaneously proceeding to terminate the father’s right in a second action, (2) where the State relied on substantially the same grounds in both actions, (3) where the State alleged that the father was of limited intelligence, (4) where the State stipulated to an order agreeing to return the children contingent with the father’s compliance with a court-ordered parenting plan, and (5) where, thus, the State’s omission violated fundamental fairness. In re Ronald A., 1990-NMSC-071, 110 N.M. 454, 797 P.2d 243, 1990 N.M. LEXIS 272 (N.M. 1990).

U.S. Const., amends. 5, 14 require reversal of any conviction obtained in a proceeding in which the cumulative impact of irregularities is so prejudicial to a defendant that he is deprived of his fundamental right to a fair trial. State v. Wilson, 1990-NMSC-019, 109 N.M. 541, 787 P.2d 821, 1990 N.M. LEXIS 44 (N.M. 1990).

Presence of a law enforcement official without judicial process during a self-help repossession was an unconstitutional deprivation of the debtor’s rights under U.S. Const. amends. V §§ and XIV. Waisner v. Jones, 1988-NMSC-049, 107 N.M. 260, 755 P.2d 598, 6 U.C.C. Rep. Serv. 2d (CBC) 1374, 1988 N.M. LEXIS 166 (N.M. 1988).

Pre-indictment delay was not unreasonable so as to violate defendant’s right of due process under U.S. Const. amends. XIV, or under N.M. Const. art II § 14, or his right to a speedy or fair trial where a showing of reasonable delay in defendant’s prosecution for distribution of a controlled substance, 30-31-22A(2) NMSA 1978, by reason of an ongoing narcotics undercover operation, was a permissible basis for pre-indictment delay. State v. Lewis, 1988-NMCA-015, 107 N.M. 182, 754 P.2d 853, 1988 N.M. App. LEXIS 61 (N.M. Ct. App. 1988).

Both the United States and New Mexico constitutions prohibit a state from depriving a person of life, liberty, or property without due process of law. Jiron v. Mahlab, 1983-NMSC-022, 99 N.M. 425, 659 P.2d 311, 1983 N.M. LEXIS 2248 (N.M. 1983).

Constitutional right to a speedy trial, as provided by U.S. Const. amends. VI, arises under, or becomes applicable, only upon the initiation of formal prosecution proceedings, and pre-arrest, or pre-formal prosecution delays may, however, constitute a denial of due process as guaranteed by U.S. Const. amends. XIV §§ 1, and N.M. Const. art II § 18. State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, 1971 N.M. App. LEXIS 652 (N.M. Ct. App. 1971), cert. denied, 82 N.M. 377, 482 P.2d 241, 1971 N.M. LEXIS 1655 (N.M. 1971), cert. denied, 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 2d 662, 1972 U.S. LEXIS 4041 (U.S. 1972).

Former 40A-9-9A, 1953 Comp., which makes it a crime to indecently handle or touch a girl under the age of 16, is not unconstitutionally vague in violation of the due process required by N.M. Const. art II § 18 and U.S. Const. amends. XIV because the statute provides adequate warning of the proscribed conduct to satisfy constitutional standards of certainty in that a person of common understanding can comprehend the behavior that is criminalized. State v. Minns, 1969-NMCA-035, 80 N.M. 269, 454 P.2d 355, 1969 N.M. App. LEXIS 558 (N.M. Ct. App.), cert. denied, 80 N.M. 234, 453 P.2d 597, 1969 N.M. LEXIS 1732 (N.M. 1969).

The due process clause of U.S. Const. amends. XIV protects only the rights of “persons” and does not embrace the state. State ex rel. New Mexico State Highway Comm'n v. Taira, 1967-NMSC-180, 78 N.M. 276, 430 P.2d 773, 1967 N.M. LEXIS 2783 (N.M. 1967).

Relief Act, Laws 1940 (1st SS), ch. 1, which divided the agricultural lands of a Conservancy District into two classes, offended the due process, the equal protection, and the contract clauses of the United States Constitution; therefore, it was void. Durand v. Middle Rio Grande Conservancy Dist., 1941-NMSC-041, 46 N.M. 138, 123 P.2d 389, 1941 N.M. LEXIS 67 (N.M. 1941).

Relief Act (Act), which divided the agricultural lands of a Conservancy District into two classes, and changed the repayment terms of bond obligations for one of the classes violated the due process clause where the Act eased the burden of the uncultivated land at the expense of the cultivated lands and did not give the owners affected by the Act an opportunity to be heard. Durand v. Middle Rio Grande Conservancy Dist., 1941-NMSC-041, 46 N.M. 138, 123 P.2d 389, 1941 N.M. LEXIS 67 (N.M. 1941).

Information charging a drug store owner with violating 149, 1933 Comp. which prohibited labor of male employees in mercantile establishments more than eight hours in a day or 48 hours in a week of six days was quashed on appeal because the statute bore no evidence of a legislative purpose to safeguard health, morals, or safely and there was no question involved of any emergency powers the state had to preserve the peace and safety of the people. State v. Henry, 1933-NMSC-080, 37 N.M. 536, 25 P.2d 204, 1933 N.M. LEXIS 79 (N.M. 1933).

Former 1915 Code, § 2820, which prohibited an insurance company from paying a fee to any nonresident person or firm for obtaining, placing, or writing an insurance policy covering risks in the state, violated the due process clause of the U.S. Const. amends. XIV by attempting to regulate a company’s payments outside the state. Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 46 S. Ct. 331, 70 L. Ed. 664, 1926 U.S. LEXIS 422 (U.S. 1926).

Education.

Pierce v. State, 1996-NMSC-001, 121 N.M. 212, 910 P.2d 288, 1995 N.M. LEXIS 406 (N.M. 1995).

University board of regents was entitled to a directed verdict in a professor’s § 1983 action alleging deprivation of the professor’s liberty interests protected by the Fourteenth Amendment based on statements made by the university president to individual members of the administration about the professor’s handling of responsibility for the university’s Title II programs because the statements were not made public and, therefore, did not affect the professor’s reputation or employability. Lux v. Board of Regents, 1980-NMCA-164, 95 N.M. 361, 622 P.2d 266, 1980 N.M. App. LEXIS 969 (N.M. Ct. App. 1980), cert. denied, 454 U.S. 816, 102 S. Ct. 92, 70 L. Ed. 2d 84, 1981 U.S. LEXIS 3108 (U.S. 1981).

Education qualifications required by the state before applicants were permitted to practice law in New Mexico did not violate U.S. Const. amends. XIV or N.M. Const., art. 2, § 18 either in regard to the clause requiring due process of law or that providing for equal protection of the laws. Henington v. State Bd. of Bar Examiners, 1956-NMSC-001, 60 N.M. 393, 291 P.2d 1108, 1956 N.M. LEXIS 1149 (N.M. 1956).

Elections.

In order to comply with the Equal Protection Clause, the district court appropriately exercised its equitable powers to insist on the consolidation of districts in the underpopulated regional areas of north central and southeastern New Mexico, as well as central Albuquerque. A problem with the central Albuquerque consolidation was not the fact that the consolidation occurred, but the manner in which it was accomplished. Maestas v. Hall, 2012-NMSC-006, 274 P.3d 66, 2012 N.M. LEXIS 119 (N.M. 2012).

U.S. Const. amends. XIV §§ 2 allows states to prohibit persons convicted of crimes from voting or holding state or local offices. Lopez v. Kase, 1999-NMSC-011, 126 N.M. 733, 975 P.2d 346, 1999 N.M. LEXIS 54 (N.M. 1999).

Candidates for various offices in a New Mexico primary election were entitled to recover the filing fees which they paid under protest and which were held in a fund awaiting the outcome of their § 1983 action against New Mexico’s Secretary of State, where a federal district court had declared former 3-8-26, 1953 Comp., to be unconstitutional as to candidates for the office of United States Senator and where, thus, the application of that statute to candidates for other offices would deny those candidates equal protection of the laws in violation of the Fourteenth Amendment. Gallagher v. Evans, 536 F.2d 899, 1976 U.S. App. LEXIS 8747 (10th Cir. N.M. 1976).

Eligibility.

State v. Prince, 1948-NMSC-003, 52 N.M. 15, 189 P.2d 993, 1948 N.M. LEXIS 615 (N.M. 1948).

So-called “moral character” rule does not violate the Due Process Clauses of U.S. Const. amends. XIV or N.M. Const. art II § 18 because the right to take an examination to practice law is a qualified right, and one who seeks permission to take such examination must be prepared to satisfy reasonable requirements as to good moral character and training. The possession of good moral character is a condition precedent, and the requirement that an applicant furnish the board of bar examiners a certificate from an attorney of the state touching on his moral character is not unreasonable. Henington v. State Bd. of Bar Examiners, 1956-NMSC-001, 60 N.M. 393, 291 P.2d 1108, 1956 N.M. LEXIS 1149 (N.M. 1956).

Eminent domain.

Where a waste company’s right to collect garbage was governed by a settlement agreement, the waste company had no vested, legal interest to continue business and a city had the right to limit waste company’s collection rights, as the term minimum was not ambiguous; thus, there was no taking and the waste company was not entitled to just compensation. Envtl. Control, Inc. v. City of Santa Fe, 2002-NMCA-003, 131 N.M. 450, 38 P.3d 891, 2001 N.M. App. LEXIS 107 (N.M. Ct. App. 2001), cert. denied, 131 N.M. 564, 40 P.3d 1008, 2002 N.M. LEXIS 10 (N.M. 2002).

Corporation commission’s order requiring a telecommunication company to provide consumers with telephone service within 30 days of request or face penalties was not an unlawful taking of the company’s property because there was no proof that the order would require crippling capital investments or impair the company’s financial integrity, waivers were available upon a showing of unusual circumstances, many rural applications were exempt from the order, and the company was not precluded from seeking a rate increase. U.S. West Communs. v. New Mexico State Corp. Comm'n (In re Held Orders of U. S. West Communs.), 1997-NMSC-031, 123 N.M. 554, 943 P.2d 1007, 1997 N.M. LEXIS 282 (N.M. 1997).

In a case in which the public-service company applied for regulatory abandonment and decertification of its interest in a unit of a generating station, the company did not make the required factual showing of an uncompensated taking as nothing in the record showed with particularity whether or how the alleged taking occurred, and, assuming arguendo a taking, nothing showed that the taking was uncompensated or if it were compensated how the compensation was deficient constitutionally. Public Serv. Co. v. New Mexico Pub. Serv. Comm'n, 1991-NMSC-083, 112 N.M. 379, 815 P.2d 1169, 1991 N.M. LEXIS 314 (N.M. 1991).

Railroad’s taking of a landowner’s property through condemnation did not violate the landowner’s rights under U.S. Const. amends. V and U.S. Const. amends. XIV, although the landowner was only paid from the date of the notice of condemnation and she alleged that the railroad had entered the land four years earlier. Atchison, T. & S. F. Ry. v. Richter, 20 N.M. 278, 148 P. 478, 1915 N.M. LEXIS 33, 1915 N.M. LEXIS 34 (N.M. 1915).

Employees.

“Property” under the fourteenth amendment includes government benefits such as public employment; a public employee has a constitutionally protected interest in continued employment where he has a reasonable expectation that he will continue to be employed. Lovato v. Albuquerque, 1987-NMSC-086, 106 N.M. 287, 742 P.2d 499, 1987 N.M. LEXIS 3727 (N.M. 1987).

Equal protection.

School district employees adequately stated an equal protection claim against the school district based on their Mormon faith where they alleged that the restructuring was a discriminatory adverse employment action taken because of their religion and that the district’s policy or custom of discrimination against Mormons was the moving force behind the discriminatory adverse employment action. Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp. 2d 1136, 2013 U.S. Dist. LEXIS 90275 (D.N.M. 2013).

District court properly found that many of the legal fees incurred by appellant candidate were for unnecessary or unreasonable tactics — tactics that apparently only caused delay and expense for appellee water and sanitation district (district); even if the candidate had been similarly situated, his decisions to pursue tactics contrary to the interests of the district were adequate to provide a rational basis for the district to treat him differently, and the district court did not err in denying the candidate’s equal protection claim. Gentry v. Shug, 2012-NMCA-019, 270 P.3d 1286, 2011 N.M. App. LEXIS 138 (N.M. Ct. App. 2011).

Appellate court held that, in regard to the passenger’s argument of arbitrary discrimination as to classes of minors, the manner in which the district court and appellate court have construed 37-1-8 and 37-1-10 NMSA 1978 did not violate any substantive due process or equal protection rights; the passenger had more than one year after he reached eighteen within which to sue, and the district court’s application of the statutes was not arbitrary, unjust, or unreasonable. Gomez v. Chavarria, 2009-NMCA-035, 146 N.M. 46, 206 P.3d 157, 2009 N.M. App. LEXIS 8 (N.M. Ct. App.), cert. quashed, 147 N.M. 601, 227 P.3d 91, 2009 N.M. LEXIS 786 (N.M. 2009).

Registration requirement for out-of-state offenders, contained in the Albuquerque Sex Offender Registration and Notification Act violates equal protection guarantees and is unconstitutional. ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215, 2006 N.M. App. LEXIS 53 (N.M. Ct. App. 2006).

“Alone with a Child” provision of the Albuquerque Sex Offender Registration and Notification Act is not rationally related to a legitimate governmental interest, violates equal protection guarantees, and therefore is unconstitutional. ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215, 2006 N.M. App. LEXIS 53 (N.M. Ct. App. 2006).

Where a competing local exchange carrier (CLEC) claimed that the imposition of a costing docket rate, rather than the rate in its interconnection agreement with an incumbent local exchange carrier (ILEC) violated its rights to equal protection under the United States and New Mexico Constitutions, the CLEC’s equal protection claims could not survive rational basis review; the commission’s imposition of the costing docket rate was rationally related to the legitimate state interests in setting just and reasonable rates and ensuring greater competition in the local telephone services market. e.spire Communs., Inc. v. Baca, 269 F. Supp. 2d 1310, 2003 U.S. Dist. LEXIS 11293 (D.N.M. 2003), aff'd, 392 F.3d 1204, 2004 U.S. App. LEXIS 26548 (10th Cir. N.M. 2004).

Section 66-8-101D NMSA 1978, the enhancement provision, does not violate the Fourteenth Amendment, U.S. Const. amends. XIV, because there is a rational basis for the differing punishments prescribed by 66-8-101D NMSA 1978 and 66-8-102G NMSA 1978. It is rational to treat a repeat drunk driver more harshly when his or her DWI-related conduct kills or injures someone, than another driver whose recidivist conduct, by luck or miracle, leaves others unhurt. State v. House, 2001-NMCA-011, 130 N.M. 418, 25 P.3d 257, 2001 N.M. App. LEXIS 3 (N.M. Ct. App.), cert. denied, 130 N.M. 167, 21 P.3d 36, 2001 N.M. LEXIS 88 (N.M. 2001).

A criminal defendant did not make out an equal protection violation under federal law, where (1) the court assumed that under federal constitutional law, the mere existence of alternative means of prosecution (such as 30-15-1 NMSA 1978 and 66-3-506 NMSA 1978) did not violate equal protection; and (2) the defendant made no allegation that prosecutorial discretion was exercised discriminatorily in her case on an impermissible basis. State v. Arellano, 1997-NMCA-074, 123 N.M. 589, 943 P.2d 1042, 1997 N.M. App. LEXIS 61 (N.M. Ct. App. 1997), cert. quashed, 124 N.M. 589, 953 P.2d 1087, 1998 N.M. LEXIS 48 (N.M. 1998).

Section 52-1-24A NMSA 1978 did not violate the equal protection clause of N.M. Const. art II § 18 or U.S. Const. amends. XIV by imposing a mandatory application of the most recent edition of the AMA Guide in evaluating impairments as of the date a workers’ compensation claimant reaches maximum medical improvement (MMI), because categorizing workers according to the date of MMI ensures that similarly-injured workers who achieve MMI on the same date will be evaluated the same based on current medical advances. Madrid v. St. Joseph Hosp., 1996-NMSC-064, 122 N.M. 524, 928 P.2d 250, 1996 N.M. LEXIS 431 (N.M. 1996).

The different standards use in prostitution and patronizing statutes, 30-9-2 NMSA 1978 and 30-9-3 NMSA 1978, respectively, did not violate a prostitute’s equal protection rights under U.S. Const. amends. XIV and N.M. Const. art II § 18, where allegedly all prostitutes were female and customers male, because the statutes were both gender neutral on their face and because either males or females could be arrested and convicted under either statute. State v. Sandoval, 1982-NMCA-091, 98 N.M. 417, 649 P.2d 485, 1982 N.M. App. LEXIS 931 (N.M. Ct. App. 1982).

Former 40A-15-3, 1953 Comp. (now 30-15-4 NMSA 1978), which criminalized the desecration of a church, did not violate the equal protection clause of U.S. Const. amends. XIV by making it a greater crime to desecrate a church than to destroy other kinds of property, as proscribed in former 40A-15-1, 1953 Comp. (now 30-15-1 NMSA 1978), where the differences in the elements of the offenses provided a rational basis for the difference in penalties. State v. Vogenthaler, 1976-NMCA-030, 89 N.M. 150, 548 P.2d 112, 1976 N.M. App. LEXIS 564 (N.M. Ct. App. 1976).

Taxation of an outdoor billboard advertising service pursuant to former 72-16A-4, 1953 Comp. (now 7-9-4 NMSA 1978) did not violate the equal protection clauses of the U.S. and New Mexico constitutions, where a rational basis existed for the state to discriminate between the broadcast industry and the outdoor advertising industry, in that the billboards were entirely within the confines of the state, and broadcasters usually engaged in interstate transmission of their messages. Markham Advertising Co. v. Bureau of Revenue, 1975-NMCA-071, 88 N.M. 176, 538 P.2d 1198, 1975 N.M. App. LEXIS 689 (N.M. Ct. App.), cert. denied, 88 N.M. 318, 540 P.2d 248, 1975 N.M. LEXIS 901 (N.M. 1975).

Receipts from telephone service provided by a taxpayer telephone company to organizations exempt from federal income tax under former 72-16A-14.9 and 72-16A-14.15, 1953 Comp. (now 7-9-54 and 7-9-60 NMSA 1978) were not properly deductible as sales of tangible personal property and did not deprive the taxpayer of equal protection of the law because the taxpayer was authorized to deduct receipts from those organizations for gross receipts tax purposes only if there was a sale of tangible personal property, and although telephone communication required electricity and former 72-16A-3I, 1953 Comp. defined tangible personal property to include electricity, there was a reasonable basis for differentiating between electricity and the telephone communication it provided. Leaco Rural Tel. Coop., Inc. v. Bureau of Revenue, 1974-NMCA-076, 86 N.M. 629, 526 P.2d 426, 1974 N.M. App. LEXIS 706 (N.M. Ct. App. 1974).

Defendant was properly convicted of driving while intoxicated where 64-22-2, 1953 Comp. (now 66-8-102 NMSA 1978) did not violate his right to equal protection even though it provided that a defendant could plead guilty before a justice of the peace due to the fact that 64-22-2, 1953 Comp. (now 66-8-102 NMSA 1978) was severable. State v. Klantchnek, 1955-NMSC-036, 59 N.M. 284, 283 P.2d 619, 1955 N.M. LEXIS 1019 (N.M. 1955).

Error.

Defendant’s felony convictions were reversed because a trial court erred in substituting a second alternate juror after jury deliberations had begun and the alternates were excused, and the error was prejudicial to defendant’s right to a fair trial. State v. Sanchez, 2000-NMSC-021, 2000-NMSC-021, 129 N.M. 284, 6 P.3d 486, 2000 N.M. LEXIS 226 (N.M. 2000).

Pursuant to U.S. Const. amends. VI and XIV and N.M. Const. art II § 14, an appellate court has to reverse any conviction obtained in a proceeding in which the cumulative impact of irregularities is so prejudicial to a defendant that he is deprived of his fundamental right to a fair trial. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, 1999 N.M. App. LEXIS 121 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 338 (N.M. 1999).

Where the judge who presided over defendant’s trial on the charge of sexual contact with a minor hugged the victim’s grandmother in the presence of the jury, defendant was deprived of his right to a fair trial as guaranteed by U.S. Const. amends. VI and XIV and N.M. Const. art II § 14. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, 1999 N.M. App. LEXIS 121 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 338 (N.M. 1999).

Defendant’s first-degree murder conviction was reversed because the cumulative impact of several errors deprived defendant of his fundamental right to a fair trial pursuant to N.M. Const. art II § 14 and U.S. Const. amends. VI and XIV. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937, 1984 N.M. LEXIS 1677 (N.M. 1984).

Evidence.

—Admissible.

In a prosecution of defendant for criminal sexual penetration and abuse of a child by endangerment, admission under the medical diagnosis or treatment exception, Rule 11-803D NMRA of the child’s out-of court statements to the doctor and nurse who examined her shortly after the alleged offenses took place did not violate defendant’s constitutional right to confrontation under U.S. Const. amends. V §§ VI, XIV and N.M. Const. art II § 14, 18; the statements had sufficient particularized guarantees of trustworthiness to protect defendant’s constitutional rights because they were virtually identical to the statements that the child made to her parents, and the child made the statements in a non-suggestive context. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62 P.3d 354, 2002 N.M. App. LEXIS 114 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 126, 61 P.3d 835, 2003 N.M. LEXIS 3 (N.M. 2003).

Victim impact witness’ testimony or a prosecutor’s remark regarding a victim was allowable so long as it did not infect the sentencing proceeding so as to render it fundamentally unfair; defendant could seek appropriate relief under the Due Process Clause of the Fourteenth Amendment and 31-26-4 NMSA 1978, both granted the representatives of a murder victim the right to make a statement to the court at sentencing and at any post-sentencing hearings for the accused. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793, 1999 N.M. LEXIS 278 (N.M. 1999).

Confession of an 18-year old high school graduate was not rendered involuntary by the fact that the federal agents drove him to a parking lot near his house and by the fact that one agent stayed in the front seat while the other got in the back with defendant during the interview; defendant voluntarily accompanied the agents and was not placed under arrest or searched. State v. Munoz, 1998-NMSC-048, 126 N.M. 535, 972 P.2d 847, 1998 N.M. LEXIS 443 (N.M. 1998).

—Insufficient.

Federal agents’ communication of a credible threat made by a drug organization on defendant’s life did not constitute sufficient coercion under the circumstances to render defendant’s resulting confession involuntary, where the agents made no offer of protection in exchange for defendant’s cooperation and where all of the other circumstances supported the voluntariness of his confession. State v. Sanders, 2000-NMSC-032, 2000-NMSC-032, 129 N.M. 728, 13 P.3d 460, 2000 N.M. LEXIS 387 (N.M. 2000).

Where no evidence existed to show that other applicants were treated differently than a corporation after the Environment Department started enforcing its own regulations, the corporation’s equal protection rights were not violated. Moongate Water Co. v. State, 1995-NMCA-084, 120 N.M. 399, 902 P.2d 554, 1995 N.M. App. LEXIS 83 (N.M. Ct. App. 1995).

—Sufficient.

Defendant was not denied due process of law under U.S. Const. amends. XIV or N.M. Const. art II § 18 and was not denied his right to a speedy trial where there was a delay between the entry of his nolo contendere plea to a larceny charge and the filing of a supplemental information charging him as a habitual offender because the trial was held in compliance with former Rule 37(b), now Rule 5-604 NMRA; defendant had not established the existence of actual prejudice, and the delay was neither oppressive or unreasonable. State v. Santillanes, 1982-NMCA-118, 98 N.M. 448, 649 P.2d 516, 1982 N.M. App. LEXIS 903 (N.M. Ct. App. 1982).

Exemption.

Former 72-16-5D, 1953 Comp., which provided an exemption from an emergency school tax imposed on gross receipts from any lump sum or unit price contract for a particular project entered into before the effective date of the tax where the contract did not by its terms allow the contractor to increase his price to cover the tax, was a valid use of legislative power and did not violate the U.S. Const. amends. XIV. Gruschus v. Bureau of Revenue, 1965-NMSC-013, 74 N.M. 775, 399 P.2d 105, 1965 N.M. LEXIS 1497 (N.M. 1965).

Expert.

Trial court violated defendant’s right to confrontation under U.S. Const. amends. VI §§ and XIV, and N.M. Const. art II, § 14 by refusing to allow defendant to cross-examine the state’s expert witness who was an emergency room physician who testified that in his professional opinion and based upon the complainant’s mental state the complainant had been raped. Sanchez v. State, 103 N.M. 25, 702 P.2d 345, 1985 N.M. LEXIS 1971 (1985), overruled in part on other grounds, State v. Tollardo, 2012-NMSC-008, N.M. LEXIS 130.

Fair warning.

Statute must give fair warning of proscribed conduct in order to avoid arbitrary and discriminatory enforcement. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).

Familial integrity.

Under the Fourteenth Amendment, there is a clearly established right to familial integrity. Oldfield v. Benavidez, 1994-NMSC-006, 116 N.M. 785, 867 P.2d 1167, 1994 N.M. LEXIS 36 (N.M. 1994).

Garageman’s lien.

Garageman’s lien statute, former 61-3-1, 1953 Comp. (now 48-3-1 NMSA 1978), which permits the retention of property under specified circumstances is not an unconstitutional deprivation of property and did not violate U.S. Const. amends. XIV §§ 1. De Marsh v. Landreth, 1976-NMCA-080, 89 N.M. 494, 553 P.2d 1301, 1976 N.M. App. LEXIS 606 (N.M. Ct. App. 1976).

Governmental immunity.

Purported abrogation of states’ sovereign immunity by the federal Age Discrimination in Employment Act was not a valid exercise of congressional power under U.S. Const. amends. XIV. Gill v. Public Emples. Ret. Bd., 2003-NMCA-038, 133 N.M. 345, 62 P.3d 1227, 2002 N.M. App. LEXIS 129 (N.M. Ct. App. 2002), rev'd, 2004-NMSC-016, 135 N.M. 472, 90 P.3d 491, 2004 N.M. LEXIS 232 (N.M. 2004).

Section 37-1-23A NMSA 1978, which grants governmental entities immunity from all contract actions but those on a “valid written contract,” does not violate the due process clause of the Fourteenth Amendment to the United States Constitution, U.S. Const. amends. XIV. Sena School Bus Co. v. Board of Educ., 1984-NMCA-014, 101 N.M. 26, 677 P.2d 639, 1984 N.M. App. LEXIS 623 (N.M. Ct. App. 1984).

Argument that New Mexico Tort Claims Act violated N.M. Const. art II § 4 and 18, and U.S. Const. art. 14 on the grounds that the Act denied injured parties equal protection in that only those parties who were injured by the negligence of state and public employees performing their duties in any of the eight enumerated areas of governmental activity could recover damages was without merit; any classification scheme involving sovereign immunity was a policy decision, it was not the function of the courts to dictate policy, the classification adopted offended no fundamental right or suspect classes, and there were rational bases for the reinstatement of partial sovereign immunity. Garcia v. Albuquerque Pub. Sch. Bd. of Educ., 1980-NMCA-081, 95 N.M. 391, 622 P.2d 699, 1980 N.M. App. LEXIS 902 (N.M. Ct. App. 1980).

Governmental powers.

New Mexico’s felony-murder statute, requiring as it does both causation attributable to a defendant, who may be acting through an accomplice, and an intent to kill or to do an act greatly dangerous to the lives of others or with knowledge that the act creates a strong probability of death or great bodily harm, is a valid exercise of the legislature’s authority to prescribe serious punishment for killings committed with the requisite criminal intent and that occur during the commission or attempted commission of a first degree or other inherently dangerous felony. State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196, 1991 N.M. LEXIS 331 (N.M. 1991), abrogated as stated in Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, 2010 N.M. LEXIS 256 (N.M. 2010).

Allegations that the Multistate Tax Commission, established by the Multistate Tax Compact, former 72-15A-37, 1953 Comp. (now 7-5-1 NMSA 1978), had abused its powers by conducting a campaign of harassment against members of plaintiff class of taxpayers failed to establish that the compact was in violation U.S. Const. amends. XIV. United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 98 S. Ct. 799, 54 L. Ed. 2d 682, 1978 U.S. LEXIS 58 (U.S. 1978).

There was no merit to a claim by plaintiff, a supermarket corporation, that, by denying it the right to install and use an incinerator, while permitting another business establishment to use an incinerator for similar purposes, which business had, by ordinance, been granted an exclusive franchise to collect, remove, and dispose of garbage from locations within the corporate limits of defendant City of Grants, New Mexico, the City was denying the corporation the equal protection of the laws in derogation of U.S. Const. amends. XIV and N.M. Const. art II § 18. Barber's Super Mkts. v. Grants, 1969-NMSC-115, 80 N.M. 533, 458 P.2d 785, 1969 N.M. LEXIS 1671 (N.M. 1969).

Former statute that authorized a city to pledge the proceeds of a gasoline license tax for the payment of special street improvements was not constitutionally objectionable as the taking of property without due process of law or denial of equal protection of law, within the meaning of N.M. Const. art II § 18 or U.S. Const. amends. XIV. Stone v. Hobbs, 1950-NMSC-032, 54 N.M. 237, 220 P.2d 704, 1950 N.M. LEXIS 623 (N.M. 1950).

Reasonable regulation enacted for the benefit of public health, convenience, safety or general welfare is not unconstitutional taking of property in violation of the contract clause, due process clause or equal protection clause of the Federal Constitution. Green v. Gahup, 1941-NMSC-050, 46 N.M. 71, 120 P.2d 619, 1941 N.M. LEXIS 64 (N.M. 1941).

Town ordinance prohibiting door-to-door solicitors from canvassing in residential areas was constitutional because it was a valid exercise of the town’s police power to abate nuisances. Green v. Gahup, 1941-NMSC-050, 46 N.M. 71, 120 P.2d 619, 1941 N.M. LEXIS 64 (N.M. 1941).

Barbers Price Fixing Act did not violate the U.S. Const. amends. XIV because it was not arbitrary, discriminatory, or unreasonable; The regulation of barber shops was necessary to protect the public and to maintain sanitary conditions. Arnold v. Board of Barber Examiners, 1941-NMSC-003, 45 N.M. 57, 109 P.2d 779, 1941 N.M. LEXIS 2 (N.M. 1941).

County was required to transfer delinquent taxes that were indisputably levied and collected for the city’s ordinary governmental purposes to the city because, although N.M. Laws 1909, ch. 57 provided that all delinquent taxes that were collected were to have been deposited in one of two county funds, a literal interpretation of the statute would have led to a result that would have imposed an undue hardship on the city by depriving it of revenue to which it was entitled and would have violated the equal protection provisions in the Fourteenth Amendment by effectively requiring the individuals from whom the delinquent taxes were collected to pay double county taxes. Territory ex rel. Albuquerque v. Pinney, 1910-NMSC-056, 15 N.M. 625, 114 P. 367, 1910 N.M. LEXIS 56 (N.M. 1910).

Guest statute.

Guest Statute, former 64-24-1, 1953 Comp., in effect when an accident occurred, but later struck as violative of equal protection under U.S. Const. amends. XIV and N.M.Const., art. II, § 18, did not apply to the action, which was filed after the decision and so arose in the future within the modified prospectivity given the decision. Navajo Freight Lines v. Baldonado, 1977-NMSC-025, 90 N.M. 264, 562 P.2d 497, 1977 N.M. LEXIS 1032 (N.M. 1977).

Habeas corpus.

Prisoner’s motion for a writ of habeas corpus seeking a discharge from custody was improperly granted because parole to detainers was specifically authorized in New Mexico and the inmate voluntarily executed a parole agreement, thus he was not denied due process. Snow v. Cox, 1966-NMSC-082, 76 N.M. 238, 414 P.2d 217, 1966 N.M. LEXIS 2643 (N.M. 1966).

Hearing.

By requiring a respondent attorney to pay for the transcript of a disciplinary hearing in advance, prior to a determination on the merits by the New Mexico supreme court, former 21-2-1(12), 1953 Comp. could result in a denial of proper presentation and trial, and thus it was a denial of constitutional due process guarantees under U.S. Const. amends. V §§ XIV. In re Nelson, 1968-NMSC-028, 78 N.M. 739, 437 P.2d 1008, 1968 N.M. LEXIS 1892 (N.M. 1968).

Hearing presence.

Due Process Clause of U.S. Const. amends. XIV does not require a judge to have a convicted person present for a hearing on a motion to set aside a sentence. State v. Brinkley, 1967-NMSC-124, 78 N.M. 39, 428 P.2d 13, 1967 N.M. LEXIS 2733 (N.M. 1967).

Trial court did not abuse its discretion in not requiring defendants’ presence at a hearing on their motions filed pursuant to former N.M. R. Civ. P. 93, 21-1-1(93), 1953 Comp., to set aside sentences imposed upon them because the Due Process Clause of U.S. Const. amends. XIV did not require a judge to have a convicted person present for the hearing on the motion. State v. Brinkley, 1967-NMSC-124, 78 N.M. 39, 428 P.2d 13, 1967 N.M. LEXIS 2733 (N.M. 1967).

Hearsay.

Parents’ due process rights were not violated in a child abuse and neglect case by admission of hearsay statements of child through the testimony of the foster mother, social worker, and therapist because (1) the parents received proper notice of the intent to use the child’s statements; (2) they were each represented by able attorneys who argued vigorously on their behalf and carefully cross-examined the witnesses about the reliability and credibility of the child’s statements; (3) the children’s court initially admitted the testimony about the hearsay statements conditionally, and at the close of evidence, was satisfied that the statements were reliable and admitted them; (4) and the children’s court determined that there was clear and convincing evidence to support the amended petition before it held that the child was abused and neglected. State ex rel. Children, Youth & Families Dep't v. Frank G., 2005-NMCA-026, 137 N.M. 137, 108 P.3d 543, 2004 N.M. App. LEXIS 149 (N.M. Ct. App. 2004).

Identification process.

Although the pre-trial identification procedure used by police was impermissibly suggestive, the identification was reliable under the circumstances; the court noted that the convenience store where the robbery occurred was well lit, the victim had ample opportunity to view the perpetrator, and the identification occurred within a few hours after the robbery. State v. Nolan, 1979-NMCA-116, 93 N.M. 472, 601 P.2d 442, 1979 N.M. App. LEXIS 717 (N.M. Ct. App.), cert. denied, 93 N.M. 683, 604 P.2d 821, 1979 N.M. LEXIS 1323 (N.M. 1979).

Immunity.

Provision of immunity to a public defender’s office against an inmate’s claim of malpractice did not violate the former inmate’s equal protection rights under U.S. Const. amends. XIV §§ 1, and N.M. Const. art II § 18. Coyazo v. State, 1995-NMCA-056, 120 N.M. 47, 897 P.2d 234, 1995 N.M. App. LEXIS 49 (N.M. Ct. App. 1995).

Indictment.

Defendant was entitled to a determination of whether the state could have reasonably provided greater specificity on the times of the alleged sexual assaults of a minor where the indictment contained a two-year charging period. State v. Baldonado, 1998-NMCA-040, 124 N.M. 745, 955 P.2d 214, 1998 N.M. App. LEXIS 16 (N.M. Ct. App. 1998).

Because criminal proceedings need not have been based upon a grand jury indictment, but could properly have been based upon an information under N.M. Const. art II § 14, defendant’s rights under the Fifth and Fourteenth Amendments to the United States Constitution were not violated where the state proceeded against defendant by criminal information filed by the district attorney. State v. Vaughn, 1971-NMSC-015, 82 N.M. 310, 481 P.2d 98, 1971 N.M. LEXIS 1522 (N.M.), cert. denied, 403 U.S. 933, 91 S. Ct. 2262, 29 L. Ed. 2d 712, 1971 U.S. LEXIS 1563 (U.S. 1971).

Indigent assistance.

To determine whether the due process clause of the 14th Amendment entitles the indigent to assistance of appointed counsel, the private interests at stake, the risk that the procedures used will lead to erroneous decisions, and the government’s interest must all be evaluated and their net weight balanced against that historical presumption. State ex rel. Department of Human Servs. v. Rael, 1982-NMSC-042, 97 N.M. 640, 642 P.2d 1099, 1982 N.M. LEXIS 2821 (N.M. 1982).

Instructions.

Use of jury instructions taken from the New Mexico Uniform Jury Instructions-Criminal in defendant’s first degree murder trial, although his information was filed before the date on which their use became mandatory, did not violate N.M. Const. art IV § 32, U.S. Const. art I § 9, U.S. Const. amends. XIV, or an order of the New Mexico Supreme Court; nothing in the order prevented use of the instructions before the required date. State v. Valenzuela, 1976-NMSC-079, 90 N.M. 25, 559 P.2d 402, 1976 N.M. LEXIS 865 (N.M. 1976).

Intent, knowledge.

Construing 30-2-1A(2) NMSA 1978 as requiring proof that a defendant intended to kill a victim or that the defendant was knowingly heedless that his or her acts created a strong probability of death or great bodily harm removes 30-2-1A(2) NMSA 1978 from the threat of unconstitutionality under the due process clause. State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196, 1991 N.M. LEXIS 331 (N.M. 1991), abrogated as stated in Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, 2010 N.M. LEXIS 256 (N.M. 2010).

Where punishment imposed is only for an act knowingly done with the purpose of doing that which a statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).

Jurisdiction.

Out-of-state signing of a guaranty of a debt owed to a resident creditor did not in and of itself constitute a sufficient contact with New Mexico upon which to base in personam jurisdiction over the nonresident guarantors; because the guarantors merely stepped into an established business arrangement and did not purposefully avail themselves of the privilege of conducting activities within New Mexico, there were insufficient contacts to satisfy due process concerns. FDIC v. Hiatt, 1994-NMSC-044, 117 N.M. 461, 872 P.2d 879, 1994 N.M. LEXIS 163 (N.M. 1994).

Where a patent filed a medical malpractice action agaisnt a doctor who was about to leave the country, without exhausting all administrative remedies as set out in the the Medical Malpractice Act, 41-5-1 NMSA 1978 et seq., dismissal of the action was improper because the Act unconstitutionally denied her right to access to the courts as guaranteed by U.S. Const. amends. XIV §§ 1, and N.M. Const. art II § 18. The patient would be prejudiced by the undue delay of going before the medical review commission prior to filing an action because it created an inability to acquire personal jurisdiction over the doctor, who would be unavailable for service of process. Jiron v. Mahlab, 1983-NMSC-022, 99 N.M. 425, 659 P.2d 311, 1983 N.M. LEXIS 2248 (N.M. 1983).

Although a boy was only 14 years, 6 months old when he shot to death his stepmother and half-sister, a district court had jurisdiction to hold him for trial rather than remanding the case to the juvenile court pursuant to former 13-8-9, 1953 Comp., which was not unconstitutional. State v. Doyal, 1955-NMSC-060, 59 N.M. 454, 286 P.2d 306, 1955 N.M. LEXIS 1048 (N.M. 1955).

Jurors.

Juvenile defendant challenging the state’s exercise of a peremptory challenge of a Native American from the jury pool failed to carry his burden of showing sufficient evidence to support a finding of discriminatory intent where the state provided a credible non-discriminatory reason for use of the challenge, namely that the potential juror seemed to be falling asleep. State v. Gerald B., 2006-NMCA-022, 139 N.M. 113, 129 P.3d 149, 2006 N.M. App. LEXIS 4 (N.M. Ct. App. 2006).

Prohibition against the State using peremptory challenges to eliminate prospective jurors on the basis of race protects not only a defendant’s right to an impartial jury but also protects prospective jurors from discriminatory exclusion. State v. Guzman, 1994-NMCA-149, 119 N.M. 190, 889 P.2d 225, 1994 N.M. App. LEXIS 164 (N.M. Ct. App. 1994), cert. denied, 119 N.M. 20, 888 P.2d 466, 1995 N.M. LEXIS 26 (N.M. 1995).

Rule 1-038 NMRA does not authorize an “equalization” of peremptory challenges and does not violate a party’s rights to equal protection under the New Mexico or federal constitutions. Gallegos by & Through Gallegos v. Southwest Community Health Servs., 1994-NMCA-037, 117 N.M. 481, 872 P.2d 899, 1994 N.M. App. LEXIS 38 (N.M. Ct. App.), cert. denied, 118 N.M. 311, 875 P.2d 383, 1994 N.M. LEXIS 172 (N.M. 1994).

Exclusion for cause of three veniremen from defendant’s felony murder jury on the grounds of their attitudes toward the death penalty did not violate his rights under U.S. Const. amends. VI §§ or XIV; the veniremen testified that their opposition to the death penalty would have prevented them from finding defendant guilty of the offense with which he was charged. State v. Trivitt, 1976-NMSC-004, 89 N.M. 162, 548 P.2d 442, 1976 N.M. LEXIS 794 (N.M. 1976).

Juveniles.

A juvenile is not entitled to a jury trial after being charged with the commission of a petty misdemeanor offense because the offense is only a misdemeanor and an adult is also not entitled to a jury trial if charged with the same offense. State v. Doe, 1977-NMCA-092, 90 N.M. 776, 568 P.2d 612, 1977 N.M. App. LEXIS 650 (N.M. Ct. App. 1977).

Legal malpractice.

Providing immunity to the public defender’s office from a legal malpractice claim under the Tort Claims Act did not violate a former inmate’s equal protection rights under U.S. Const. amends. XIV and N.M. Const. art II § 18. Coyazo v. State, 1995-NMCA-056, 120 N.M. 47, 897 P.2d 234, 1995 N.M. App. LEXIS 49 (N.M. Ct. App. 1995).

Liability.

Nonresident owner of personalty who returns it for taxation to himself and fails to question in any manner an assessment and levy of his property cannot deny personal liability on the ground that he is denied due process of law. State v. Baker, 1930-NMSC-050, 35 N.M. 55, 289 P. 801, 1930 N.M. LEXIS 57 (N.M.), cert. denied, 282 U.S. 807, 51 S. Ct. 105, 75 L. Ed. 724, 1930 U.S. LEXIS 52 (U.S. 1930).

License.

Statute, which prohibited the issuance of a liquor license to any saloon within five miles of a government sanatorium, was constitutional; it did not create a monopoly in violation of U.S. Const. amends. XIV §§ 1. Rapp v. Venable, 1910-NMSC-041, 15 N.M. 509, 110 P. 834, 1910 N.M. LEXIS 41 (N.M. 1910).

Former § 51-1901, 1941 Comp. et seq. does not violate N.M. Const. art II § 18 nor U.S. Const. amends. XIV, as a denial of due process of law. That the legislature may enact laws in the exercise of its police powers is fully recognized, except that it may not be so unreasonably or arbitrarily exercised as to amount to confiscation of property or a denial of the right to engage in a particular trade, occupation or profession. Kaiser v. Thomson, 1951-NMSC-037, 55 N.M. 270, 232 P.2d 142, 1951 N.M. LEXIS 740 (N.M. 1951).

Former 1903 Laws, ch. 40, § 6, which prohibited the practice of medicine for gain without a license, did not violate the equal protection rights of defendant, who contended he was a drugless healer, by separating the class of people who practiced medicine for gain from those who did not. Territory v. Newman, 1905-NMSC-015, 13 N.M. 98, 79 P. 706, 79 P. 813, 1905 N.M. LEXIS 14 (N.M. 1905).

Military income taxes.

State of New Mexico could not levy, assess, and collect income tax from a Texas resident who was employed at a U.S. military installation located in New Mexico, because former 72-15-21, 1953 Comp., which imposed tax on every resident and non-resident, and the failure of former 72-15-23, 1953 Comp., to grant non-residents the same personal exemptions granted to New Mexico residents violated U.S. Const. art IV § 2 and U.S. Const. amend XIV, § 1. State ex rel. McCulloch v. Ashby, 1963-NMSC-217, 73 N.M. 267, 387 P.2d 588, 1963 N.M. LEXIS 2077 (N.M. 1963).

Minors.

Language of former 13-8-27, 1953 Comp., is more precise in its method of certification of juveniles to be handled as adults than was the language of the former Juvenile Delinquency Act. Where defendant, a 17-year-old juvenile convicted of murder in the first degree, contended that the provisions of former 13-8-27, 1953 Comp. were too vague and indefinite, thereby violating N.M. Const. art II § 18, N.M. Const. art IV § 16, and U.S. Const. amends. XIV, the constitutionality of the provisions were upheld because the title of the act containing former 13-8-27, 1953 Comp. gave adequate notice that provisions for certification of a juvenile to the district court would reasonably be found within the act. State v. Jimenez, 1972-NMSC-073, 84 N.M. 335, 503 P.2d 315, 1972 N.M. LEXIS 906 (N.M. 1972).

Municipal debt voting.

Former 14-29-1 to 14-29-9, 1953 Comp. (now 3-30-1 to 30-30-9 NMSA 1978), and particularly former 14-29-1 to 14-29-4, 1953 Comp. (now 30-30-1 to 30-30-4 NMSA 1978), were not in conflict with and repugnant to the clear meaning and requirements of N.M. Const. art VII § 1 and N.M. Const. art IX § 1, nor did they violate U.S. Const. amends. XIV §§ 1 or N.M. Const. art II § 18. Raton v. Sproule, 1967-NMSC-141, 78 N.M. 138, 429 P.2d 336, 1967 N.M. LEXIS 2747 (N.M. 1967).

Murder.

Defendant’s convictions for second degree murder with a firearm enhancement, and shooting from a motor vehicle with great bodily harm did not violate double jeopardy because the acts did not involve unitary conduct where defendant shot into the car and then shot again when the victim got out of the car. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, 2004 N.M. App. LEXIS 77 (N.M. Ct. App.), cert. denied, 100 P.3d 197, 2004 N.M. LEXIS 454 (N.M. 2004).

Non-resident taxpayers.

New Mexico Bureau of Revenue’s adoption of a regulation that created a personal exemption for non-resident taxpayers did not overcome the fact that the failure of former 72-15-23, 1953 Comp. to include such exemptions violated U.S. Const. art IV § 2 and U.S. Const. amends. XIV §§ 1, because a regulation adopted by an administrative agency creating an exemption not contemplated by the act or included within the exemption specified therein was void, and the legislature could not delegate authority to a board or commission to adopt rules or regulations that abridged, enlarged, extended, or modified the statute that created aright or imposed a duty. State ex rel. McCulloch v. Ashby, 1963-NMSC-217, 73 N.M. 267, 387 P.2d 588, 1963 N.M. LEXIS 2077 (N.M. 1963).

Notice.

Under 22-10A-27 NMSA 1978 and this section, the teacher was given notice of the arbitrator’s intention to recommend discharge as he was able to defend the student’s allegations, and the difference between language in notice and arbitrator’s decision did not infringe upon the teacher’s due process rights; the notice was sufficient to apprise the teacher of the charges so as to afford him the opportunity to present his evidence contravening the charges, and the teacher did so. Larsen v. Bd. of Educ., 2010-NMCA-093, 148 N.M. 920, 242 P.3d 487, 2010 N.M. App. LEXIS 91 (N.M. Ct. App.), cert. denied, 149 N.M. 49, 243 P.3d 753, 2010 N.M. LEXIS 458 (N.M. 2010).

Prosecution is not required to formally notify a defendant in a charging instrument of either the defendant’s firearm use or that the State may seek firearm enhancement under 31-18-16 NMSA 1978. In a murder trial, defendant received sufficient notice of the use of a firearm as a consideration under section 31-18-16 NMSA 1978 where his firearm use was a fact used to establish an element of a murder and an attempted murder, where the firearm was mentioned in the fourth count of the criminal information charging defendant with tampering with evidence, where defendant used a theory of self-defense which he fully articulated in his opening statement, where the State’s opening also clearly stated that it would prove that defendant shot the victims, where throughout the trial, there was extensive testimony by defendant about his gun, where there was considerable testimony from the State’s witnesses about the shootings, and where, at defendant’s first trial, a special verdict was given to the jury on firearm use beyond a reasonable doubt in the commission of the crimes charged. State v. Badoni, 2003-NMCA-009, 133 N.M. 257, 62 P.3d 348, 2002 N.M. App. LEXIS 103 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 126, 61 P.3d 835, 2003 N.M. LEXIS 1 (N.M. 2003).

Property owner did not have a legal right under the constitution, as opposed to statute, to any particular kind of notice and an opportunity to be heard in response to the county’s enactment of a comprehensive zoning ordinance. Therefore, because the county did not deprive the property owner of any identifiable constitutional right, he had no claim to damages under 42 U.S.C.S. § 1983 or to attorney’s fees under 42 U.S.C.S. § 1988, regardless of whether the county’s notice was legal under state statute. Miles v. Board of County Comm'rs, 1998-NMCA-118, 125 N.M. 608, 964 P.2d 169, 1998 N.M. App. LEXIS 97 (N.M. Ct. App.), cert. denied, 126 N.M. 107, 967 P.2d 447, 1998 N.M. LEXIS 298 (N.M. 1998).

Where a corporation’s petition for a well permit was denied, the corporation’s due process rights were not denied by the failure to give proper notice or conduct a fair hearing because any failures on the part of the government did not rise to the level of constitutional deprivation. Moongate Water Co. v. State, 1995-NMCA-084, 120 N.M. 399, 902 P.2d 554, 1995 N.M. App. LEXIS 83 (N.M. Ct. App. 1995).

Defendant failed to show that 58-13B-2(V) NMSA 1978 and 58-13B-30 NMSA 1978 were unconstitutionally vague under either U.S. Const. amends. V §§ and XIV or N.M. Const. art II § 18, as the statutes, when read in conjunction, were sufficient to place defendant and others on notice that the actions involved fraudulent practices contract to 58-13B-30 NMSA 1978. State v. Ramos, 1993-NMCA-089, 116 N.M. 123, 860 P.2d 765, 1993 N.M. App. LEXIS 82 (N.M. Ct. App.), cert. denied, 115 N.M. 795, 858 P.2d 1274, 1993 N.M. LEXIS 266 (N.M. 1993).

Son’s claim that if the probate code did not require that he receive notification of his rights and duties in a pending litigation involving his father’s will, it violated due process, U.S. Const. amends. XIV, was without merit because the son had received notice sufficient to comply with 45-3-412A(1) NMSA 1978 and the requirements of due process. In re Estate of Gaines, 1992-NMCA-027, 113 N.M. 652, 830 P.2d 569, 1992 N.M. App. LEXIS 22 (N.M. Ct. App. 1992).

Where a lessor was not personally served with notice of the operator/lessee’s application for a larger spacing order but was provided with notice by publication as provided under 70-2-7 NMSA 1978, lack of actual notice of the pending state proceeding deprived her of property without due process in contravention of U.S. Const. amends. XIV. The hearing on the application was adjudicatory, not rulemaking, and the lessor had a property right in the oil and gas lease affected by the spacing order that was worthy of constitutional protection, regardless that the lessor had contractually granted the lessee the right extract oil and gas from the leased land and pool the lessor’s interest. Uhden v. New Mexico Oil Conservation Comm'n, 1991-NMSC-089, 112 N.M. 528, 817 P.2d 721, 1991 N.M. LEXIS 402 (N.M. 1991).

Both under U.S. Const. amends. XIV and N.M. Const. art II § 18, due process notice requirements require that when the Property Tax Division of the State Taxation and Revenue Department has reason to know that the owner of real property subject to delinquent tax sale is deceased, then reasonable notice of the proposed tax sale must be given to decedent’s personal representative whereo ne has been appointed and where record of that fact is reasonably ascertainable by the Division. Fulton v. Cornelius, 1988-NMCA-057, 107 N.M. 362, 758 P.2d 312, 1988 N.M. App. LEXIS 53 (N.M. Ct. App. 1988).

Notice in English.

English-language notice of license revocation proceeding which was personally served on the Spanish-speaking petitioner when he was arrested for driving under the influence of alcohol satisfied due process, even though petitioner did not read English, because a reasonable person who received the notice during an arrest for driving while intoxicated would inquire further and have the notice translated. Petitioner failed to preserve his argument that the Due Process Clause of N.M. Const. art II § 18 should be interpreted to provide greater protection than that recognized under the Due Process Clause of the U.S. Const. amends. XIV, and petitioner conceded that the federal due process clause did not require a hand-delivered notice of license revocation to be printed in both English and Spanish. Maso v. State Taxation & Revenue Dep't, Motor Vehicle Div., 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286, 2004 N.M. LEXIS 371 (N.M. 2004).

Physician license.

New Mexico Board of Medical Examiners revocation of a physician’s license to practice medicine violated the physician’s right to due process of law under U.S. Const. amends. XIV, where the Board failed to render a decision within 90 days after hearing the matter as required by 61-1-13B NMSA 1978, because the procedures set forth in that statute constituted a vital property right, the deprivation of which was a deprivation of due process. Lopez v. New Mexico Bd. of Medical Examiners, 1988-NMSC-039, 107 N.M. 145, 754 P.2d 522, 1988 N.M. LEXIS 142 (N.M. 1988).

Pleadings.

Trial court did not err by denying a motion to quash a subpoena duces tecum issued by the Governor’s Organized Crime Prevention Commission pursuant to the Organized Crime Act, former 39-1-1 NMSA 1978 et seq. (now 29-1-1 NMSA 1978) because the subpoena did not violate U.S. Const. amends. IV §§ and XIV, as the Commission was an investigatory body rather than an accusatory body and its subpoenas were administrative and not subject to the search and seizure protections of the Fourth Amendment. In re Investigation No. 2 of Governor's Organized Crime Prevention Comm'n, 1978-NMSC-022, 91 N.M. 516, 577 P.2d 414, 1978 N.M. LEXIS 919 (N.M. 1978).

Practice and procedure.

Right to a speedy trial is grounded in the sixth and fourteenth amendments of the United States Constitution and in N.M. Const. art II § 14. State v. Mendoza, 1989-NMSC-032, 108 N.M. 446, 774 P.2d 440, 1989 N.M. LEXIS 188 (N.M. 1989).

Presumptions.

Any presumption which establishes a fact essential for conviction of the crime by proof of another fact, or which shifts to a defendant the burden of persuasion that the essential fact is not true, runs afoul of the Due Process Clause by conflicting with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196, 1991 N.M. LEXIS 331 (N.M. 1991), abrogated as stated in Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, 2010 N.M. LEXIS 256 (N.M. 2010).

Prior restraint of press.

Where a theatre owner was enjoined from showing allegedly immoral motion pictures, pursuant to former 40-34-15 to 40-34-19, 1953 Comp., the injunction constituted a prior restraint of the press and was impermissible under N.M. Const. art. 11, § 17, and the U.S. Const. amends. I and XIV because “lewdness” as used in former 40-34-15 to 40-34-19, 1953 Comp. did not apply to the showing of motion pictures in a regular business establishment, as it did not include acts not connected with assignation or prostitution. State ex rel. Murphy v. Morley, 1957-NMSC-087, 63 N.M. 267, 317 P.2d 317, 1957 N.M. LEXIS 966 (N.M. 1957).

Procedure.

—Pretrial.

Where defendant’s indictment was handed down more than one year after his arrest, but he did not show any actual prejudice or that his case would have been more successful except for the delay, his conviction was affirmed. State v. Duran, 1978-NMSC-052, 91 N.M. 756, 581 P.2d 19, 1978 N.M. LEXIS 938 (N.M. 1978).

—Trial.

When a defendant’s medical records referred to schizophrenia and a brain tumor which may have existed at the time of his offense, and his newly-appointed attorney had less than a month to prepare for trial, trial court rulings which denied a continuance for an evaluation of defendant’s possible lack of capacity, precluded admission of the medical records and denied the subpoena of a treating physician to authenticate those records, were reversed and defendant was entitled to a new trial; the rulings violated defendant’s rights to due process and to a fair trial under U.S. Const. amends. XIV §§ 1 and N.M. Const. art II § 14,18. March v. State, 1987-NMSC-020, 105 N.M. 453, 734 P.2d 231, 1987 N.M. LEXIS 3524 (N.M. 1987).

Prosecutorial discretion.

Statute imposing criminal penalties for failing to disclose facts or change of circumstances to obtain public assistance was not unconstitutionally vague in allowing prosecutor discretion as to whether to charge acts individually or in aggregate, as it provided clear notice of the conduct that it makes criminal. State v. Fleming, 2006-NMCA-149, 140 N.M. 797, 149 P.3d 113, 2006 N.M. App. LEXIS 140 (N.M. Ct. App.), cert. denied, 141 N.M. 104, 151 P.3d 65, 2006 N.M. LEXIS 635 (N.M. 2006).

Public utilities.

None of the due process challenges made by a phone company under U.S. Const. amends. XIV §§ 1 in regard to the deficiency of the notice it was given, or the adequacy of its opportunity to be heard, or the impartiality of the New Mexico state corporation commission, supported the allegation that the phone company was deprived of the due process in proceedings that resulted in an interim rate reduction imposed by authority of former N.M. Const. art XI § 7. U.S. West Communs., Inc. v. New Mexico State Corp. Comm'n (In re Commission Investigation into the 1997 Earnings of U.S. West Communs., Inc.), 1999-NMSC-016, 127 N.M. 254, 980 P.2d 37, 1999 N.M. LEXIS 87 (N.M. 1999).

Where the record showed that a telecommunications company unreasonably delayed in providing telephone service to consumers upon request, the corporation commission’s order imposing a statewide standard of no pending telephone service orders held over 30 days and requiring the company to book the costs of alternative services to shareholders did not violate the equal protection clause because there was no evidence that the telecommunications company was similarly situated with other telecommunications service providers who had no such severe held order problems. U.S. West Communs. v. New Mexico State Corp. Comm'n (In re Held Orders of U. S. West Communs.), 1997-NMSC-031, 123 N.M. 554, 943 P.2d 1007, 1997 N.M. LEXIS 282 (N.M. 1997).

Rate.

Failure of a regulatory commission to provide for rates that will provide a reasonable rate of return to a utility constitutes a violation of due process, and failure to increase rates commensurate with a reasonable rate of return is an unconstitutional confiscation of the utility’s property without due process of law. In re Application of General Tel. Co., 1982-NMSC-106, 98 N.M. 749, 652 P.2d 1200, 1982 N.M. LEXIS 2901 (N.M. 1982).

State corporation commission (SCC) may not demand rate forfeitures on service deficiencies from a regulated company for noncompliance with its after-the-fact determination of a fair and reasonable rate of return; to the contrary, the SCC has a constitutional duty in a rate case to adopt rates that will allow the utility to operate successfully, maintain its financial integrity, attract capital, and compensate its investors for the risk assumed. In re Application of General Tel. Co., 1982-NMSC-106, 98 N.M. 749, 652 P.2d 1200, 1982 N.M. LEXIS 2901 (N.M. 1982).

Deduction by the state corporation commission (SCC) of 41 percent from a rate of return that it had determined to be just and reasonable in a telephone utility’s application for a rate increase was in conflict with the SCC’s own findings and exceeded the SCC’s authority; once the SCC had arrived at a fair and reasonable rate of return, it had no authority to penalize the utility for reasons relating to the quality of service in a rate-making proceeding. In re Application of General Tel. Co., 1982-NMSC-106, 98 N.M. 749, 652 P.2d 1200, 1982 N.M. LEXIS 2901 (N.M. 1982).

Relationship to other laws.

Neither the Full Faith and Credit clause, nor the Due Process clause were violated in certifying plaintiff’s breach of contract action against an insurer as a class action because the district court did not err in its assessment that breach of contract law was uniform enough that the traditional notions of fair play and justice would not be offended by litigating the issue under New Mexico law in that there was no significant variation in the cases from the standard approach to interpretation of insurance contracts. However, the law related to the duty of good faith was not sufficiently uniform to allow New Mexico law to be applied nationwide, and certification on this issue was reversed. Berry v. Fed. Kemper Life Assur. Co., 2004-NMCA-116, 136 N.M. 454, 99 P.3d 1166, 2004 N.M. App. LEXIS 101 (N.M. Ct. App. 2004), cert. denied, 100 P.3d 672, 2004 N.M. LEXIS 410 (N.M. 2004), cert. denied, 544 U.S. 920, 125 S. Ct. 1640, 161 L. Ed. 2d 477, 2005 U.S. LEXIS 2463 (U.S. 2005), overruled in part, Ferrell v. Allstate Ins. Co., 2007-NMCA-017, 141 N.M. 72, 150 P.3d 1022, 2006 N.M. App. LEXIS 169 (N.M. Ct. App. 2006).

Repairs.

Former 1915 Code, §§ 265, 266, 267, and 268, under which a well supervisor repaired landowners’ wells which had become a nuisance, were not violative of U.S. Const. amends. V §§ or XIV, nor N.M. Const. arts. II, § 18 or II, § 20, as the common law right to summarily abate a nuisance did not conflict with constitutional provisions protecting property rights. Eccles v. Ditto, 1917-NMSC-062, 23 N.M. 235, 167 P. 726, 1917 N.M. LEXIS 65 (N.M. 1917).

Requirements.

Due process clauses of the U.S. Const. amends. VI §§ and XIV, and N.M. Const. art II § 18, require that criminal statutes be drafted so that they provide fair warning of the conduct sought to be proscribed, and so that the statutes do not encourage arbitrary or discriminatory enforcement. State v. Luckie, 1995-NMCA-075, 120 N.M. 274, 901 P.2d 205, 1995 N.M. App. LEXIS 70 (N.M. Ct. App.), cert. denied, 120 N.M. 184, 899 P.2d 1138, 1995 N.M. LEXIS 298 (N.M. 1995).

Resident vendor preference.

Legislature’s selection of a resident vendor for imposition of a school tax under former 72-16-4, 1953 Comp., and of a purchaser for imposition of a compensating tax under former 72-17-3, 1953 Comp., is reasonable in view of the impossibility of subjecting the nonresident vendor, one who is out of the territorial jurisdiction of the legislature, to the school tax. The Emergency School Tax Act does not offend U.S. Const. amends. XIV or N.M. Const. art II § 18 so as to invalidate the school tax against resident vendors. Edmunds v. Bureau of Revenue, 1958-NMSC-112, 64 N.M. 454, 330 P.2d 131, 1958 N.M. LEXIS 1360 (N.M. 1958).

Review.

—Standards.

Annexation of contiguous land is permitted where the owners of a majority of the acreage sought to be annexed consent to the annexation, did not implicate the landowners’ right to vote, and thus was subject to rational basis review; one rational basis for this majority rule was that taxes would be apportioned according to property ownership, so the statute was not violative of the landowner’s equal protection rights under the U.S. Const. amends. XIV. Torres v. Capitan, 1978-NMSC-065, 92 N.M. 64, 582 P.2d 1277, 1978 N.M. LEXIS 956 (N.M. 1978).

Right to counsel.

Defendant’s conviction for passing a worthless check over $50 could not be used, pursuant to 31-18-17 NMSA 1978, to enhance his sentence for a subsequent fraud conviction where defendant was not represented by counsel on the worthless check charge and did not waive his right to such representation and, thus, his rights under U.S. Const. amends. VI §§ and XIV were violated. State v. Thornton, 1997-NMCA-108, 124 N.M. 214, 947 P.2d 171, 1997 N.M. App. LEXIS 101 (N.M. Ct. App. 1997).

A mother accused of civil neglect with the risk of criminal prosecution, incarceration, and loss of custody of her child asserts a violation of her due process right when New Mexico Human Services Department workers did not advise her of her right to counsel in the combined custody and neglect hearing as required under Rule 10-302 NMRA; the workers are entitled to qualified immunity because the mother’s due process entitlement to counsel is not clearly established because she was not directly threatened with a loss of physical liberty, and the State’s interest in the health and welfare of the child is great. Garramone v. Romo, 94 F.3d 1446, 1996 U.S. App. LEXIS 22622 (10th Cir. N.M. 1996).

Defendant’s motion under former 21-1-1(93), 1953 Comp., motion to vacate a judgment and sentence previously imposed on his guilty plea to being a habitual criminal, which was based on his claim that because the sentencing court did not advise him of the possible defenses that could be raised, he could not intelligently waive his rights to the aid of counsel, was denied because the waiver of counsel was intelligently made and he was not denied his right to counsel, as guaranteed by U.S. Const. amends. VI §§ and XIV. The sentencing court repeatedly cautioned defendant concerning the gravity of the charge and his answers to questions by the court were, by his own admission, voluntarily given and each of his prior convictions were freely acknowledged. State v. Coates, 1967-NMSC-199, 78 N.M. 366, 431 P.2d 744, 1967 N.M. LEXIS 2801 (N.M. 1967).

Right to testify.

Sale of alcohol.

60-7A-1 NMSA 1978, a law which prohibited the sale of alcoholic beverages on Sunday, was constitutional and not violative of U.S. Const. amends. I, U.S. Const. amends. XIV §§ 1, N.M. Const. art II § 11, or N.M. Const. art II § 18; thus, retailers were not entitled to prevail in their action for declaratory and injunctive relief against the Department of Alcoholic Beverage Control of New Mexico and certain government officials. Pruey v. Department of Alcoholic Beverage Control, 1986-NMSC-018, 104 N.M. 10, 715 P.2d 458, 1986 N.M. LEXIS 2849 (N.M. 1986).

Search.

Blood test that was conducted by a surgeon upon an officer’s request constituted a search of a person and because the blood test was done by the state without consent, the search was impermissible and violated defendant’s constitutional rights against unreasonable searches and against self-incrimination. State v. Richerson, 1975-NMCA-027, 87 N.M. 437, 535 P.2d 644, 1975 N.M. App. LEXIS 647 (N.M. Ct. App.), cert. denied, 87 N.M. 450, 535 P.2d 657, 1975 N.M. LEXIS 817 (N.M. 1975).

Search and seizure.

Where stopping an automobile and detaining its occupants constitutes a seizure under the Fourth Amendment and the Fourteenth Amendment and because detaining defendant in a patrol car for at least 45 minutes while the crime of which he was suspected of committing was investigated and at least 30 minutes after probable cause to arrest him existed was a de facto arrest that deprived him of his freedom in a significant way, that detention was an unlawful seizure under the Fourth Amendment. State v. Werner, 1994-NMSC-025, 117 N.M. 315, 871 P.2d 971, 1994 N.M. LEXIS 120 (N.M. 1994).

Because a search warrant did not meet the statutory requirements for the form and contents of search warrants and the defects could not be classified as minor, a defendant was granted a new trial free of any evidence seized under the search warrant; the seized evidence violated defendant’s right of unreasonable searches and seizures and his right against self-incrimination. State v. Montoya, 1974-NMCA-017, 86 N.M. 119, 520 P.2d 275, 1974 N.M. App. LEXIS 631 (N.M. Ct. App. 1974).

Self-incrimination.

Trial court could not condition defendant’s right to appeal his conviction for driving while intoxicated on his obtaining a pre-sentence evaluation, even though 31-21-9 NMSA 1978 permitted the trial court to order a pre-sentence evaluation, because requiring defendant to participate in a potentially self-incriminating procedure infringed his rights under the due process and equal protection clauses of U.S. Const. amends. XIV. Mitchell v. County of Los Alamos, 1991-NMSC-062, 112 N.M. 215, 813 P.2d 1013, 1991 N.M. LEXIS 242 (N.M. 1991).

Sentence.

Defendant’s due process rights were not violated by a 13-month delay in enforcement of a sentence because there was no indication that defendant had any reason to affirmatively, but incorrectly, believe that defendant was free of further restraint on his liberty State v. Calabaza, 2011-NMCA-053, 149 N.M. 612, 252 P.3d 836, 2011 N.M. App. LEXIS 28 (N.M. Ct. App. 2011).

Discretion sentencing courts exercise in fashioning sentences for serious youthful offenders, including the discretion to award good time credit eligibility, is rationally related to the goals of punishment as well as rehabilitation; in the present case defendant’s equal protection rights were not violated. State v. Tafoya, 2010-NMSC-019, 148 N.M. 391, 237 P.3d 693, 2010 N.M. LEXIS 254 (N.M. 2010).

—Generally.

The enhancement provision of 66-8-101A NMSA 1978 did not unconstitutionally violate principles of equal protection; the enhancement provision applied solely to those convicted of killing or seriously hurting others, while 31-18-17 NMSA 1978 applied universally to recidivist felons, many of whom were guilty of non-violent crimes, and such distinction was a valid basis for disparate treatment. State v. House, 2001-NMCA-011, 130 N.M. 418, 25 P.3d 257, 2001 N.M. App. LEXIS 3 (N.M. Ct. App.), cert. denied, 130 N.M. 167, 21 P.3d 36, 2001 N.M. LEXIS 88 (N.M. 2001).

Where defendant was sentenced to death for the kidnapping and murder of a nine-year-old girl, resentencing was necessary where the prosecutor had stressed defendant’s future dangerousness to the jury when he would have been parole ineligible. Clark v. Tansy, 1994-NMSC-098, 118 N.M. 486, 882 P.2d 527, 1994 N.M. LEXIS 363 (N.M. 1994).

Former 21-1-1(93), 1953 Comp. (now Rule 1-093 NMRA), which permitted the trial court to rule on a motion to set aside a sentence without the defendant being present, did not violate U.S. Const. amends. XIV. State v. Brinkley, 1967-NMSC-124, 78 N.M. 39, 428 P.2d 13, 1967 N.M. LEXIS 2733 (N.M. 1967).

—Not excessive.

Where defendant was convicted of kidnapping with firearm enhancement, sexual penetration with firearm enhancement, and first degree murder, defendant was properly sentenced to death based upon the jury’s finding of aggravating circumstances; the trial court’s automatic exclusion for cause of potential jurors based on their views of capital punishment was not error. State v. Gilbert, 1983-NMSC-083, 100 N.M. 392, 671 P.2d 640, 1983 N.M. LEXIS 2353 (N.M. 1983), cert. denied, 465 U.S. 1073, 104 S. Ct. 1429, 79 L. Ed. 2d 753 (U.S. 1984).

District attorney’s policy of seeking enhancement of punishment under the Habitual Criminal Act, former 40A-29-6, 1953 Comp., only against persons having prior convictions in New Mexico did not deny defendant equal protection of the laws in violation of the Fourteenth amendment of the U.S. constitution. State v. Baldonado, 1968-NMCA-025, 79 N.M. 175, 441 P.2d 215, 1968 N.M. App. LEXIS 452 (N.M. Ct. App. 1968).

Sodomy.

Judgment convicting defendant of sodomy was reversed because the information charging defendant was void for failure to give defendant notice of the charges against him and denied him due process of law in violation of U.S. Const. amends. VI and U.S. Const. amends. XIV. The record reflected that defendant did not in fact know which act of sodomy was charged because despite evidence revealing more than one offense the information did not specify the date of the offense pursuant to former 41-23-8A(1), 1953 Comp. (now Rule 5-202 NMRA) and failed to charge defendant with a specific act or specific acts pursuant to former 41-23-5C, 1953 Comp. (now Rule 5-201 NMRA). State v. Foster, 1974-NMCA-150, 87 N.M. 155, 530 P.2d 949, 1974 N.M. App. LEXIS 765 (N.M. Ct. App. 1974).

Sovereign immunity.

Mine owners’ Takings Clause claim against state mining regulatory agencies that their land interest was taken from them through the application of state mining regulations without just compensation was not barred by sovereign immunity. Also, Takings Clause was self-executing as applied to the states, and there was no requirement for a specific waiver of sovereign immunity. Manning v. Mining & Minerals Div. of the Energy, Minerals & Natural Res. Dep't, 2006-NMSC-027, 140 N.M. 528, 144 P.3d 87, 2006 N.M. LEXIS 280 (N.M.), cert. denied, 549 U.S. 1051, 127 S. Ct. 663, 166 L. Ed. 2d 513, 2006 U.S. LEXIS 9015 (U.S. 2006).

Speedy trial.

Appellate court balanced four factors in determining whether defendant’s right to a speedy trial, as guaranteed under U.S. Const. amends. VI §§ XIV, and N.M. Const. art II § 14 were violated: (1) the length of the delay, (2) reasons for the delay, (3) defendant’s assertion of his right, and (4) prejudice to defendant. State v. Ortiz-Burciaga, 1999-NMCA-146, 128 N.M. 382, 993 P.2d 96, 1999 N.M. App. LEXIS 121 (N.M. Ct. App.), cert. denied, 128 N.M. 149, 990 P.2d 823, 1999 N.M. LEXIS 338 (N.M. 1999).

In determining whether defendant was denied a speedy trial in violation of U.S. Const. amends. VI §§ and XIV and N.M. Const. art II § 14, the appellate court examines four factors: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. Town of Bernalillo v. Garcia, 1994-NMCA-111, 118 N.M. 610, 884 P.2d 501, 1994 N.M. App. LEXIS 112 (N.M. Ct. App.), cert. denied, 118 N.M. 585, 883 P.2d 1282, 1994 N.M. LEXIS 354 (N.M. 1994).

Fourteen-month delay in trying defendant for speeding and driving while intoxicated was not a denial of defendant’s right to a speedy trial under U.S. Const. amends. VI §§ and XIV and N.M. Const. art II § 14 because defendant’s pretrial incarceration was not oppressive, his defense was not prejudiced, and the delay was not due to the prosecution’s negligence or bad faith. Most all of the delay was a result of defendant’s filing numerous motions, including motions to recuse the judge and various motions to dismiss. Town of Bernalillo v. Garcia, 1994-NMCA-111, 118 N.M. 610, 884 P.2d 501, 1994 N.M. App. LEXIS 112 (N.M. Ct. App.), cert. denied, 118 N.M. 585, 883 P.2d 1282, 1994 N.M. LEXIS 354 (N.M. 1994).

Spousal visitation.

Suspension of an inmate’s spousal visitation privileges indefinitely without notice or a hearing constituted a violation of his due process rights. The inmate should have been given notice and an opportunity to confront the persons who accused his wife of helping him with drug activity within the prison during visitation. Cordova v. LeMaster, 2004-NMSC-026, 136 N.M. 217, 96 P.3d 778, 2004 N.M. LEXIS 377 (N.M. 2004).

Standing.

Where a defendant’s alleged acts of sodomy were committed with force and without the consent of the prosecutrix, the defendant did not have standing to challenge constitutionality of the sodomy statute, former 40A-9-6, 1953 Comp., on the theory that the statute assertedly was overbroad and might have been used to punish as crimes private sexual acts between consenting adults. State v. Armstrong, 1973-NMCA-081, 85 N.M. 234, 511 P.2d 560, 1973 N.M. App. LEXIS 731 (N.M. Ct. App. 1973), cert. denied, 85 N.M. 228, 511 P.2d 554, 1973 N.M. LEXIS 1337 (N.M. 1973), overruled, State v. Elliott, 1975-NMCA-087, 88 N.M. 187, 539 P.2d 207, 1975 N.M. App. LEXIS 693 (N.M. Ct. App. 1975).

Statute compliance.

In a juvenile delinquency proceeding, a juvenile court judge violated a father’s due process rights under both N.M. Const. art II § 18 and U.S. Const. amend XIV where the judge ordered the father to pay $75 a month for his daughter’s support where the hearing accorded him failed to comply with the requirements of former 13-8-50, 1953 Comp. in that the father was not advised of the powers of the juvenile court to order and decree that he make payments for the support and treatment of his daughter as provided in former 13-8-57, 1953 Comp., and in that he was not given reasonable opportunity to be heard as required by former 13-8-50, 1953 Comp. and former 13-8-57, 1953 Comp. In re Downs, 1971-NMSC-023, 82 N.M. 319, 481 P.2d 107, 1971 N.M. LEXIS 1527 (N.M. 1971).

Taxation.

New Mexico Taxation and Revenue Department’s (TRD) efforts in attempting to locate the property owner fell short of the “reasonable diligence” standard; TRD failed to contact the Torrance County Electric Cooperative, which would have given TRD contact information for the tenants, who knew how to get in touch with the owner, and TRD failed to tag any part of the property, which would have alerted the tenants to the tax deficiency, and TRD was reasonably certain that the owner resided in Kansas City, Missouri, but it failed to follow up by attempting to access any public records from Missouri that could have revealed the owner’s current contact information; the owner’s contact information was reasonably ascertainable and TRD was not reasonably diligent in attempt to contact him before taking the drastic step of auctioning the property to pay for his tax debts. Gates v. State, 2008-NMCA-023, 143 N.M. 446, 176 P.3d 1178, 2007 N.M. App. LEXIS 162 (N.M. Ct. App. 2007).

Physical presence test of Quill Corp. v. North Dakota, 504 U.S. 298, is intended to apply to sales and use taxes only; it was not intended to apply to other taxes such as a state income tax. Kmart Props., Inc. v. Taxation & Revenue Dep't, 2006-NMCA-026, 139 N.M. 177, 131 P.3d 27, 2001 N.M. App. LEXIS 133 (N.M. Ct. App. 2001), cert. quashed, 2006-NMSC-006, 139 N.M. 172, 131 P.3d 22, 2005 N.M. LEXIS 603 (N.M. 2005).

Commerce Clause analysis of New Mexico income tax is controlled, not by the physical presence test of Quill Corp. v. North Dakota, 504 U.S. 298, but by the overarching substantial nexus test announced in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, and the assessment of state income tax on a subsidiary’s royalty revenues was not an undue burden on interstate commerce within the meaning of the United States Constitution. Kmart Props., Inc. v. Taxation & Revenue Dep't, 2006-NMCA-026, 139 N.M. 177, 131 P.3d 27, 2001 N.M. App. LEXIS 133 (N.M. Ct. App. 2001), cert. quashed, 2006-NMSC-006, 139 N.M. 172, 131 P.3d 22, 2005 N.M. LEXIS 603 (N.M. 2005).

Under both the Due Process Clause and Commerce Clause of the U.S. Constitution, each state can not tax permissibly value earned outside its borders when imposing an income-based tax; the unitary-business concept is designed to meet the constitutional considerations of apportioning out-of-state multinational and multistate corporate income. Kewanee Indus. v. Reese, 1993-NMSC-006, 114 N.M. 784, 845 P.2d 1238, 1993 N.M. LEXIS 28 (N.M. 1993).

Applying the gross receipts tax under former 72-16A-1 to 72-16A-19, 1953 Comp. (now 7-9-1 to 7-9-91 NMSA 1978) to the advertising income that the taxpayer, which was an in-state newspaper, received from the advertising that out-of-state businesses purchased via contracts that were entered in other states as part of the businesses’ national advertising efforts was not unconstitutional even though no such tax was imposed on the comparable income that television a-> radio broadcasters received; former 72-16A-14.10, 1953 Comp. (now 7-9-55 NMSA 1978) allows for taxing income from out-of-state advertisers to the extent that doing so is constitutional, taxing the taxpayer’s advertising income did not violate the Commerce Clause by placing an undue burden on interstate commerce because sufficient activities that related to the generation of the income occurred in New Mexico to justify taxing the income there and the taxpayer did not show that that income had been subjected to multiple taxation, and the tax did not violate the Equal Protection Clause because every newspaper was taxed uniformly and because the broadcasters reached a much broader audience that extended well beyond New Mexico’s borders. New Mexico Newspapers v. Bureau of Revenue, 1971-NMCA-022, 82 N.M. 436, 483 P.2d 317, 1971 N.M. App. LEXIS 664 (N.M. Ct. App. 1971).

Imposition of a compensating use tax, former 72-17-2, 72-16A-3, 1953 Comp., upon equipment that was rented or leased even though gross receipts tax was paid upon the rentals was proper given that the “use” was the incident upon which the compensating tax was imposed, former 72-17-3, 72-16A-7, 1953 Comp., and the receipt of money from the leasing of property was the incident that gave rise to the imposition of the gross receipts and sales tax, former 72-16-4.5, 72-16A-3, 1953 Comp.. The tax scheme was not unreasonable in violation of N.M. Const. art VIII § 1 nor did it violate the equal protection clauses of U.S. Const. amends. XIV and N.M. Const. art II § 18. Rust Tractor Co. v. Bureau of Revenue, 1970-NMCA-107, 82 N.M. 82, 475 P.2d 779, 1970 N.M. App. LEXIS 639 (N.M. Ct. App.), cert. denied, 82 N.M. 81, 475 P.2d 778, 1970 N.M. LEXIS 1485 (N.M. 1970).

Time limitations.

Defendant raised a Batson challenge after the venire panel had been dismissed and the petit jury sworn and preliminarily instructed, but the objection was untimely because it was too late to cure any alleged error; there was no fundamental error because there was substantial evidence to support defendant’s convictions. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, 1993 N.M. App. LEXIS 160 (N.M. Ct. App. 1993).

Four days to respond to a decision discharging a developmentally disabled child from a group home did not satisfy even a minimal pretermination due process requirement. LaBalbo v. Hymes, 1993-NMCA-010, 115 N.M. 314, 850 P.2d 1017, 1993 N.M. App. LEXIS 26 (N.M. Ct. App.), cert. denied, 115 N.M. 359, 851 P.2d 481, 1993 N.M. LEXIS 95 (N.M. 1993).

Defendant’s conviction for raping his 10-year old stepdaughter was affirmed where the tolling provision of 30-1-9A NMSA 1978 applicable to defendant’s voluntary absence from New Mexico did not violate the privileges and immunities clause pursuant to U.S. Const. art IV § 2 and to equal protection pursuant to U.S. Const. amends. XIV; after the crime, defendant resided in Texas for 11 years, and the statute of limitations was properly tolled for the period defendant concealed himself out of state. State v. Cawley, 1990-NMSC-088, 110 N.M. 705, 799 P.2d 574, 1990 N.M. LEXIS 329 (N.M. 1990).

Transcript.

Docketing statement contained sufficient evidence to sustain defendant’s conviction of abusing a 13-month old by inflicting her with a fatal brain injury; thus, defendant was not constitutionally entitled to a transcript. Defendant’s argument that Fourteenth Amendment denied indigent defendants the right to review the transcript to support their argument when their case was on the summary calendar failed. State v. Sheldon, 1990-NMCA-039, 110 N.M. 28, 791 P.2d 479, 1990 N.M. App. LEXIS 30 (N.M. Ct. App.), cert. denied, 498 U.S. 969, 111 S. Ct. 435, 112 L. Ed. 2d 418, 1990 U.S. LEXIS 5757 (U.S. 1990).

Underlying offense.

Denial of defendant’s motion for post-conviction relief filed pursuant to former N.M. R. Crim. P. 93, 21-1-1(93), 1953 Comp. was proper with respect to his conviction for escape contrary to former 40A-22-8, 1953 Comp. (now 30-22-8 NMSA 1978) because defendant’s argument that his underlying conviction of violating ordinances against drunkenness violated U.S. Const. amends. VI §§ and XIV was no defense to the charge of escape. State v. Lopez, 1968-NMSC-098, 79 N.M. 235, 441 P.2d 764, 1968 N.M. LEXIS 1950 (N.M. 1968).

Vagueness.

Statute is unconstitutionally vague, and thus offends due process, if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly, men of common intelligence must not have guess at its meaning. Absolute precision is not a constitutional requirement. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).

Voluntary statements.

Where there were no facts to indicate that defendant’s statement was made in response to “interrogation,” but was volunteered, the admission of the statements into evidence was not prohibited by U.S. Const. amends. V §§ XIV, and, because the admissibility of a gun turned entirely on the legality of the interrogation which led to its recovery, the trial court’s suppression of the gun was reversed and remanded for reconsideration along with the statement that led to its recovery. State v. Greene, 1977-NMSC-111, 91 N.M. 207, 572 P.2d 935, 1977 N.M. LEXIS 1112 (N.M. 1977), disapproved as stated in Solem v. Stumes, 465 U.S. 638, 104 S. Ct. 1338, 79 L. Ed. 2d 579, 1984 U.S. LEXIS 36 (U.S. 1984).

Waiver.

Defendant was properly convicted of robbery, a violation of former 40A-16-2, 1953 Comp. (now 30-16-2 NMSA 1978), where he was not denied due process under the sixth and fourteenth amendments when his confession was admitted; defendant was not inexperienced, illiterate, or otherwise not of normal intelligence, and he knowingly waived his rights. State v. Gammons, 1966-NMSC-044, 76 N.M. 85, 412 P.2d 256, 1966 N.M. LEXIS 2602 (N.M. 1966).

Waiver of right to testify.

Pursuant to U.S. Const. amends. VI, applied to the states by U.S. Const. amends. IV, and N.M. Const. art II § 14, a defendant has the right to testify at his own trial regardless of his counsel’s advice, but that right can be waived. A defendant may be deemed to have waived his right to testify where it is clear defendant was aware of such right, and he acquiesces in his trial counsel’s statement that he will not testify. State v. Henry, 1984-NMCA-040, 101 N.M. 277, 681 P.2d 62, 1984 N.M. App. LEXIS 644 (N.M. Ct. App. 1984).

While, pursuant to U.S. Const. amends. VI, applied to the states by U.S. Const. amends. IV, and N.M. Const. art II § 14, defendant had the right to testify at his own trial regardless of his counsel’s advice, defendant waived that right where his counsel announced that defendant had decided not to testify and defendant expressed no objection to that announcement. Under such circumstances, the trial court was not required to halt the proceedings and to interrogate defendant or his counsel to determine whether defendant had knowingly and intelligently waived the right. State v. Henry, 1984-NMCA-040, 101 N.M. 277, 681 P.2d 62, 1984 N.M. App. LEXIS 644 (N.M. Ct. App. 1984).

Warrant.

—Exceeded.

Defendant was entitled to a new trial on three counts of first degree criminal sexual penetration in violation of 30-9-11A NMSA 1978 where the trial court erred in denying defendant’s motion to suppress evidence because seizure of tapes found in a drawer and a recorder exceeded the scope of a search warrant for marijuana and nude photographs; because the tapes and recorder were seized in violation of the U.S. Const. amends. IV §§ and XIV, they were inadmissible in evidence at defendant’s trial. State v. Turkal, 1979-NMSC-071, 93 N.M. 248, 599 P.2d 1045, 1979 N.M. LEXIS 1217 (N.M. 1979).

Water Law.

Judgment enjoining landowners from using water from underground reservoirs and artesian basins located under their land pursuant to former § 77-1101, 1941 Comp. et seq. (now 72-12-1 NMSA 1978) was proper where former 77-1101, 1941 Comp. (now 72-12-1 NMSA 1978), which declared that the public owned the water found in underground reservoirs and artesian basins and that such water was reserved to the state as public trustee, did not violate U.S. Const. amends. XIV, N.M. Const. art II § 18, and N.M. Const. art II § 20 because the federal patents under which the owners claimed the land overlying the water did not carry rights to the use of the water. State ex rel. Bliss v. Dority, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007, 1950 N.M. LEXIS 652 (N.M. 1950).

Witnesses.

Due to the timing of the competitive response case final order, the parties were denied the opportunity to substantively address the impact of the competitive response case final order on the pending proceeding through the presentation of evidence or the examination and cross-examination of witnesses; the company’s opportunity to be heard was violated. TW Telecom of N.M., L.L.C. v. N.M. Pub. Regulation Comm'n, 2011-NMSC-029, 150 N.M. 12, 256 P.3d 24, 2011 N.M. LEXIS 310 (N.M. 2011).

Workers’ compensation.

Because the periodic payment provision of 52-5-12 NMSA 1978 was rationally related to the achievement of the legislative purpose of avoiding lump-sum payments except in exceptional circumstances in order to avoid the risk of workers becoming dependent on welfare, the statute did not violate equal protection under the U.S. or New Mexico constitutions. Rodriguez v. Scotts Landscaping, 2008-NMCA-046, 143 N.M. 726, 181 P.3d 718, 2008 N.M. App. LEXIS 15 (N.M. Ct. App. 2008).

Scheduled injury provisions of 52-1-43 NMSA 1978 are not unconstitutional and do not deny workers equal protection of the law simply because they receive an injury to a bodily member listed in 52-1-43. Hise Constr. v. Candelaria, 1982-NMSC-109, 98 N.M. 759, 652 P.2d 1210, 1982 N.M. LEXIS 2903 (N.M. 1982).

OPINIONS OF ATTORNEY GENERAL

Analysis

Constitutionality.

Employees.

Constitutionality.

The Carlsbad curfew ordinance, which made it unlawful for any minor under age 17 “to be upon any street, alley, road or public place within the city” between the hours of midnight and daylight on Saturday and between 11:00 p.m. and daylight on all other days, and provided exceptions for accompanied minors, minors on certain errands, at church, or attending a play, show or other exhibition, was unconstitutionally vague and overbroad. 1989 N.M. Op. Att'y Gen. No. 1989-33.

Employees.

If a city council, in a manner consistent with the requirements of its charter, or if a county commission in a manner provided by law establishes child care as a fringe benefit or compensation for its employees, this would not violate the state constitution. Howver, the provision of child care services to metropolitan court employees would require that the legislature enact legislation that grants child care as a fringe benefit, which might be subject to attack under the fourteenth amendment, if extended only to metropolitan court employees. 1983-1986 N.M. Op. Att'y Gen. No. 138.

Research References and Practice Aids

New Mexico Law Review.

Note: Statutes of Limitations Applied to Minors: The New Mexico Court of Appeals’ Balance of Competing State Interests to Favor Children, Charlotte Tonetta Rich, 35 N.M. L. Rev. 535 (2005).

Note: For This Right There Is a Remedy: The New Mexico Supreme Court’s Application of Ex Parte Young to Allow Suits Against the State in Gill v. Public Employees Retirement Board, Jaime R. Fontaine, 35 N.M. L. Rev. 501 (2005).

Article: Criminal Justice and the 2003-2004 United States Supreme Court Term, Christopher E. Smith, Michael McCall and Madhavi McCall, 35 N.M. L. Rev. 123 (2005).

Section 5. Power to Enforce This Article

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Annotations

Annotations