No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person. The effective date of this amendment shall be July 1, 1973. (As amended November 7, 1972, effective July 1, 1973).

ANNOTATIONS

The 1972 amendment, adding the last sentence, which was proposed by H.J.R. No. 2, § 1 (Laws 1972), was adopted at the general election held on November 7, 1972, by a vote of 155, 633 for and 64,823 against.

Cross references. — See Kearny Bill of Rights, cl. 7, on NMOneSource.com.

For inherent rights to life, liberty and property, see N.M. Const., art. II, § 4.

For taking property without just compensation, see N.M. Const., art. II, § 20.

For enacting general rather than special laws, see N.M. Const., art. IV, § 24.

For taxes being equal and uniform, see N.M. Const., art. VIII, § 1.

For human rights, see Chapter 28 NMSA 1978.

For rights under Children's Code, see 32A-1-16 and 32A-2-14 NMSA 1978.

Comparable provisions. — Idaho Const., art. I, § 13.

Montana Const., art. II, §§ 4, 17.

Utah Const., art. I, § 7.

Wyoming Const., art. I, §§ 3, 6.

I. GENERAL CONSIDERATION.

This section protects only the rights of "persons" and does not embrace the state. State ex rel. N.M. State Hwy. Comm'n v. Taira, 1967-NMSC-180, 78 N.M. 276, 430 P.2d 773.

Legislative council action not subject to the requirements of due process. — Where, in response to a pervasive health crisis occasioned by the COVID-19 pandemic and consistent with the governor's executive orders encouraging all governmental branches to take steps to curb the spread of the virus and the secretary of health's emergency stay-at-home orders, the New Mexico legislative council, the legislative body entrusted with the care and custody of the state capitol, promulgated a directive prohibiting on-site, public attendance at an upcoming special legislative session that was called to address COVID-19-related issues, and where petitioners sought a writ of mandamus declaring unconstitutional that portion of the council's directive prohibiting in-person attendance at the special session, asserting that the convening of a closed or non-public session constitutes a due process violation by the legislature, there was no colorable claim of denial of a constitutional right because all governmental action that involves purely legislative, as opposed to adjudicative, decisions is not subject to the notice and hearing requirements of procedural due process. Pirtle v. Legis. Council, 2021-NMSC-026.

II. DUE PROCESS.

A. GENERALLY.

Plaintiffs failed to establish a property interest protected by due process. — Where the governing body of the acequia mesa del medio (AMM) issued a new irrigation schedule, reducing plaintiffs' irrigation time from the acequia, and where plaintiffs brought a due process claim in which they argued that AMM's modification of the irrigation schedule deprived them of their water right without notice and an opportunity to be heard, and where the district court denied plaintiffs' claim because they did not establish that they were entitled to a certain number of hours of irrigation time, the district court did not err in denying plaintiffs' claim because to succeed on a procedural due process claim, a plaintiff must show that they were deprived of a legitimate liberty or property interest and that they were not afforded adequate procedural protections, and, in this case, plaintiffs did not prove that they were entitled to a certain number of hours of irrigation time, and therefore failed to carry their burden that they were deprived of a legitimate property interest. Lujan v. Acequia Mesa Del Medio, 2024-NMCA-043, cert. denied.

Due process is a rather malleable principle which must be molded to the particular situation, considering both the rights of the parties and governmental interests involved. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

It requires that enactment be within legislative competency. — "Due process," by which only the individual may be deprived of his liberty, does not have regard merely to enforcement of the law, but searches also the authority for making the law. By judicial decision, the first and fundamental step in the due process or procedure of depriving the individual of liberty is the enactment of a statute within legislative competency. State v. Henry, 1933-NMSC-080, 37 N.M. 536, 25 P.2d 204, 90 A.L.R. 805.

An enactment must be applied for purpose consonant with legislative purpose. — Substantive due process of law may be roughly defined as the constitutional guaranty that no person will be deprived of his life, liberty or property for arbitrary reasons. Such a deprivation is constitutionally supportable only if the conduct from which the deprivation flows is proscribed by reasonable legislation (that is, legislation the enactment of which is within the scope of legislative authority), reasonably applied (that is, applied for a purpose consonant with the purpose of the legislation itself). Schware v. Board of Bar Exam'rs, 1955-NMSC-081, 60 N.M. 304, 291 P.2d 607, rev'd, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d. 796 (1957).

It has no application to public rights. — Laws 1919, ch. 83 (repealed), regarding school budgets, did not violate this section, for the due process clause of this section has no application to public rights. McKinley Cnty. Bd. of Educ. v. State Tax Comm'n, 1922-NMSC-064, 28 N.M. 221, 210 P. 565.

Provision does not create a judicially enforceable individual right to any measure of pollution control. — Where plaintiffs, various advocacy organizations and individual New Mexicans, including several Indigenous people, filed suit against various executive agencies and officials, including the governor, the legislature, and the state of New Mexico itself, seeking various forms of declaratory and injunctive relief that call for the judiciary to declare that the current statutory and regulatory scheme controlling pollution from oil and natural gas fails to protect the environment, and claiming that defendants' authorization and management of oil and gas extraction and the resulting pollution violate due process as well as defendants' rights to life, liberty, property, safety, and happiness as recognized in the Due Process and Inherent Rights Clauses of the New Mexico constitution, the district court erred in denying defendants' motion to dismiss, because plaintiffs failed to present a claim upon which relief could be granted. The Due Process or Inherent Rights Clauses of the New Mexico Constitution do not recognize a judicially enforceable individual right to any measure of pollution control. Atencio v. State, 2026-NMCA-011, cert. granted.

"Liberty" embraces right to contract hours of employment. — "Liberty" embraces a man's right to contract as he will or can regarding his hours of employment. He, not the government, is to determine the matter. State v. Henry, 1933-NMSC-080, 37 N.M. 536, 25 P.2d 204, 90 A.L.R. 805.

Allowing reclamation district to contract does not deprive members of liberty. — A provision of a reclamation contract allowing a reclamation district to enter into a lawful contract with the United States for the improvement of the district and the increase of its water supply does not violate N.M. Const., art. II, § 4, and the due process clause of this section by depriving association members of the liberty to contract. Middle Rio Grande Water Users Ass'n v. Middle Rio Grande Conservancy Dist., 1953-NMSC-035, 57 N.M. 287, 258 P.2d 391.

Specific lack of due process must be alleged. — In attacking constitutionality of statute on due process grounds, it must be alleged in what respect it lacks due process. Hutchens v. Jackson, 1933-NMSC-051, 37 N.M. 325, 23 P.2d 355.

Impairment of complainer's rights must be shown. — Violation of due process can be urged only by those who can show an impairment of their rights thereby. Straus v. Foxworth, 231 U.S. 162, 34 S. Ct. 44, 58 L. Ed. 162 (1913); State v. Hines, 1967-NMSC-237, 78 N.M. 471, 432 P.2d 827.

Legislative enactments may be declared void for uncertainty if their meaning is so uncertain that the court is unable, by the application of known and accepted rules of construction, to determine what the legislature intended with any reasonable degree of certainty. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Statute may violate due process if it is so vague that persons of common intelligence must necessarily guess at its meaning. State ex rel. Health & Social Servs. Dep't v. Natural Father, 1979-NMCA-090, 93 N.M. 222, 598 P.2d 1182.

It is not a violation of due process for the prosecutor to withhold circumstantial exculpatory evidence from the grand jury; he is obligated to present only direct exculpatory evidence. Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.

As to where terms "reasonable" or "unreasonable" are used. — The use of such terms as "reasonable" or "unreasonable" in defining standards of conduct or in prescribing charges, allowances and the like have been held not to render a statute invalid for uncertainty and indefiniteness. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Absolute or mathematical certainty is not required in the framing of a statute. N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Statute, not vague, may be overbroad. — Although a statute may pass a vagueness challenge, it may nonetheless be held unconstitutional under overbreadth considerations. State v. Ramos, 1993-NMCA-089, 116 N.M. 123, 860 P.2d 765, cert. denied, 115 N.M. 795, 858 P.2d 1274.

Adoption of child conceived as result of rape. — Man convicted of criminal sexual penetration of a child had no constitutional right under the due process or equal protections clauses of the United States or New Mexico constitutions to withhold consent to adoption of the child conceived and born as a result of that act. Christian Child Placement Serv. of the N.M. Christian Children's Home v. Vestal, 1998-NMCA-098, 125 N.M. 426, 962 P.2d 1261.

Malicious abuse of process. — The tort of malicious abuse of process must be construed narrowly in order to protect the right of access to the courts. Devaney v. Thriftway Mktg. Corp., 1998-NMSC-001, 124 N.M. 512, 953 P.2d 277, cert. denied, 524 U.S. 915, 118 S. Ct. 2296, 141 L. Ed. 2d 157 (1998).

A public office is not property, and the right to hold it is not a vested one. State ex rel. Ulrick v. Sanchez, 1926-NMSC-060, 32 N.M. 265, 255 P. 1077.

Ordering performance of public duty does not injure personal or property right. — A public officer who is commanded to perform an official duty suffers neither in his personal nor his property rights, and these rights alone are safeguarded by the constitution. Board of Comm'rs v. District Court of Fourth Judicial Dist., 1924-NMSC-009, 29 N.M. 244, 223 P. 516.

Natural parents have no property right in their children, and the paramount issue in an adoption proceeding is the welfare of the child. Gutierrez v. N.M. Dep't of Pub. Welfare, 1964-NMSC-129, 74 N.M. 273, 393 P.2d 12.

Guardian may be appointed without notice to parent. — Appointment of a guardian of a minor without giving notice to parent does not violate the due process clause. State ex rel. Hockenhull v. Marshall, 1954-NMSC-045, 58 N.M. 286, 270 P.2d 702.

Allowance of alimony is not a denial of due process. Bardin v. Bardin, 1947-NMSC-003, 51 N.M. 2, 177 P.2d 167.

Navy retirement pay is earned property right. — Retirement plans and retirement pay are a mode of employee compensation and an earned property right which accrues by reason of an individual's years of service in the navy. LeClert v. LeClert, 1969-NMSC-049, 80 N.M. 235, 453 P.2d 755, overruled by Espinda v. Espinda, 1981-NMSC-098, 96 N.M. 712, 634 P.2d 1264.

Conservation laws may not deprive property owners of constitutional rights. — The legislature may provide by law for the conservation of game animals and birds, but only so long as such laws do not deny to one having rights in privately owned land the due process or equal protection of the laws that the constitution guarantees to all persons. Allen v. McClellan, 1965-NMSC-094, 75 N.M. 400, 405 P.2d 405.

The state game commission may not create a game refuge or migratory bird resting ground on private land without consent, or without acquiring the necessary interest in the land by eminent domain or in such other manner as is authorized by law. Were it otherwise, the owner would be deprived of the right, enjoyed by others in the vicinity but outside the refuge, to hunt game on his own property and thereby be in violation of the due process and equal protection clauses of the constitution. Allen v. McClellan, 1965-NMSC-094, 75 N.M. 400, 405 P.2d 405.

As to vested rights, there are none in a particular remedy or procedure. Gray v. Armijo, 1962-NMSC-082, 70 N.M. 245, 372 P.2d 821.

Red light camera ordinance. — Where a municipal red light camera ordinance provided that vehicle owners charged with a violation of the ordinance were entitled to receive notice of the violation along with detailed information about the basis for the charge; that vehicle owners were entitled to a hearing before an impartial hearing officer at no cost; that the municipality had the burden to prove the violation; that the vehicle owner was entitled to hear and challenge the evidence; that the hearing officer was required to render a decision in writing; and that the vehicle owner was entitled to appeal the hearing officer’s decision to district court and to recover costs if the appeal was successful, the ordinance did not violate the vehicle owner’s right to procedural due process. Titus v. City of Albuquerque, 2011-NMCA-038, 149 N.M. 556, 252 P.3d 780, cert. quashed, 2011-NMCERT-001, 300 P.3d 1182.

B. EXERCISE OF POLICE POWERS.

The police power of the state is paramount, and in the proper exercise thereof there may be a limitation in the use of or complete destruction of private property in order to advance public welfare without the necessity of compensation to the owner. Therefore, although utilities are permitted to locate their facilities within the public way and thereby obtain certain rights for limited purposes, these rights are subordinate to the rights of the traveling public and are subject to a reasonable exercise of the police power. State ex rel. State Hwy. Comm'n v. Town of Grants, 1960-NMSC-004, 66 N.M. 355, 348 P.2d 274.

Salus populi est suprema lex represents the highest power possessed by the state. When properly invoked, all other guaranties, public or private, must yield. Gomez v. City of Las Vegas, 1956-NMSC-021, 61 N.M. 27, 293 P.2d 984 (garbage collection ordinance upheld).

Police power must be exercised reasonably and not arbitrarily. — Former statutes dealing with licensing of contractors (Laws 1939, ch. 197, §§ 1, 3, 14 and 17, now repealed) were not unconstitutional under this section, since legislature may enact laws in exercise of its police powers which are not so unreasonable or arbitrary as to amount to confiscation of property or denial of right to engage in a particular trade, occupation or profession. Kaiser v. Thomson, 1951-NMSC-037, 55 N.M. 270, 232 P.2d 142.

All property and property rights are held subject to the fair exercise of the police power of a municipality, and a reasonable regulation enacted for the benefit of public health, convenience, safety or general welfare is not an unconstitutional taking of property without due process. Green v. Town of Gallup, 1941-NMSC-050, 46 N.M. 71, 120 P.2d 619 ("Green River" ordinance held valid); Mitchell v. City of Roswell, 1941-NMSC-007, 45 N.M. 92, 111 P.2d 41 (prohibiting keeping animals in restricted district held valid).

Section 77-17-12 NMSA 1978, requiring one killing a bovine to preserve its hide unmutilated for 30 days, is a reasonable police regulation and not a deprivation of property without due process. State v. Walker, 1929-NMSC-050, 34 N.M. 405, 281 P. 481.

Governor’s emergency orders addressing gun violence and drug abuse did not exceed the scope of the police power. — Where Petitioners, including New Mexico legislators, Bernalillo County gun and gun shop owners, two political parties, retired law enforcement officers, and a national advocacy group, petitioned for a writ of mandamus, arguing that the governor’s emergency orders addressing gun violence and drug abuse as public health emergencies exceeded the proper scope of the Public Health Emergency Response Act, the proper scope of the police power, and the separation-of-powers doctrine, Petitioners failed to meet their burden of showing the emergency orders violate the challenged scope of the police power, because gun violence and drug abuse are legitimate crises or emergencies upon which to base the governor’s exercise of the police power, and the emergency measures relating to firearm possession and public school wastewater testing were reasonably related to addressing gun violence and drug abuse. Amador v. Grisham, 2025-NMSC-024.

Governor’s emergency order suspending the juvenile detention alternatives initiative exceeded the scope of the police power. — Where Petitioners, including New Mexico legislators, Bernalillo County gun and gun shop owners, two political parties, retired law enforcement officers, and a national advocacy group, petitioned for a Writ of Mandamus, arguing that the governor’s emergency orders addressing gun violence and drug abuse as public health emergencies exceed the proper scope of the Public Health Emergency Response Act, the proper scope of the police power, and the separation-of-powers doctrine, the governor’s order requiring the children, youth and families department to suspend the juvenile detention alternatives initiative and evaluate juvenile probation protocols was not reasonably related to reducing gun violence or drug abuse, and therefore the governor’s emergency order fails as an exercise of the police power. Amador v. Grisham, 2025-NMSC-024.

Garbage collection. — Defendant was not deprived of his property without due process by being required to pay the assessments where he received benefits in the collection and disposal of garbage from other premises in the community. The problem involved being a health problem, its solution bound defendant as well as other members of the community. Under 3-48-3 NMSA 1978, plaintiff can enforce the general system. City of Hobbs v. Chesport, Ltd., 1966-NMSC-158, 76 N.M. 609, 417 P.2d 210.

Contract for garbage disposal. — The ordinance under which a city acted by resolution to authorize a contract for garbage disposal with a sanitation company was a police measure involving the health and welfare of all members of the community and not a violation of due process or equal protection as to persons engaged in the business of hauling garbage. Gomez v. City of Las Vegas, 1956-NMSC-021, 61 N.M. 27, 293 P.2d 984.

Public nuisance may be enjoined. — Equity has power to enjoin a public nuisance, even though in doing so it may incidentally restrain the violation of a penal provision, and the constitutional guarantees are not violated thereby. State ex rel. Marron v. Compere, 1940-NMSC-041, 44 N.M. 414, 103 P.2d 273 (unlawful practice of medicine).

Keeping citizens out of hospitals and off relief is proper. — Both hospitals and relief rolls are crowded, and it is a proper exercise of police power for the legislature to enact statutes which would tend to keep citizens out of the one and off of the other. City of Albuquerque v. Jones, 1975-NMSC-025, 87 N.M. 486, 535 P.2d 1337.

Motorcycle helmets. — A city ordinance which requires the operator of a motorcycle to wear an approved safety helmet is an appropriate exercise of the city's police power and therefore is constitutional. City of Albuquerque v. Jones, 1975-NMSC-025, 87 N.M. 486, 535 P.2d 1337.

Power to select type of helmet may be delegated. — The delegation to the commissioner of motor vehicles of the power to determine what type of helmet should be worn under an ordinance mandating the wearing of approved safety helmets by motorcycle operators did not deprive the appellee of due process, nor did the fact that the state commissioner of motor vehicles adopted the standards determined by the testing of a third person make such testing unreasonable. City of Albuquerque v. Jones, 1975-NMSC-025, 87 N.M. 486, 535 P.2d 1337.

Nondiscriminatory economic policy may be enforced. — A state is free to adopt an economic policy that may reasonably be deemed to promote the public welfare and may enforce that policy by appropriate legislation without violation of the due process clause so long as such legislation has a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory. Rocky Mt. Whsle. Co. v. Ponca Whsle. Mercantile Co., 1961-NMSC-015, 68 N.M. 228, 360 P.2d 643, appeal dismissed, 368 U.S. 31, 82 S. Ct. 145, 7 L. Ed. 2d 90 (1961).

Unreasonable regulation violates due process. — An act which, under guise of regulation, constitutes an unreasonable exercise of police power violates due process. State ex rel. N.M. Dry Cleaning Bd. v. Cauthen, 1944-NMSC-047, 48 N.M. 436, 152 P.2d 255.

Treatment of electric utility's interest in generating facility. — Exclusion of an electric utility's interest in a generating facility from its rate base, coupled with the public service commission's refusal to decertify the facility, did not violate the due process provisions or the takings clauses of the New Mexico and United States constitutions. Public Serv. Co. v. Public Serv. Comm'n, 1991-NMSC-083, 112 N.M. 379, 815 P.2d 1169.

Ordinance banning pit bulls. — Village ordinance banning possession of American pit bull terriers was reasonably related to protecting the health and safety of the residents of the village; thus, the ordinance did not violate substantive due process. Garcia v. Village of Tijeras, 1988-NMCA-090, 108 N.M. 116, 767 P.2d 355, cert. denied, 107 N.M. 785, 765 P.2d 758.

Village ordinance banning American pit bull terriers, being a proper exercise of the village's police power was not a deprivation of property without due process even though it allowed for the destruction of private property. Garcia v. Village of Tijeras, 1988-NMCA-090, 108 N.M. 116, 767 P.2d 355, cert. denied, 107 N.M. 785, 765 P.2d 758.

C. REGULATION OF BUSINESSES AND PROFESSIONS.

Statute fixing maximum hours may be unconstitutional. — Portion of Laws 1933, ch. 149, which prohibited labor by male employees in mercantile establishments for more than eight hours in a day or 48 hours in a week of six days was unconstitutional as violating liberty guaranteed by this provision. State v. Henry, 1933-NMSC-080, 37 N.M. 536, 25 P.2d 204, 90 A.L.R. 805 (1933), but see Sections 50-4-13 to 50-4-18 NMSA 1978 and notes thereto.

Terms of probation imposed on physician held not vague. — One of the terms of probation imposed by the board on a physician found guilty of unprofessional conduct for falsely prescribing demerol for the alleged use of another when in fact the drug was for his own use was that he not take or have in his possession "any dangerous drugs" without the consent of his psychiatrist. The physician thereafter prescribed the drug ritalin for a patient and diverted some of it for his own use. It was held that when the board revoked the physician's license for violating his probation, and that under the facts the terms thereof were not unconstitutionally vague. McDaniel v. N.M. Bd. of Med. Exam’rs, 1974-NMSC-062, 86 N.M. 447, 525 P.2d 374.

Enactments relating to health. — Statute authorizing fixing minimum prices for barber work (former 61-17-37 NMSA 1978) had a direct relation to fulfillment of sanitary conditions required in barbershops for health of public, and did not violate due process. Arnold v. Board of Barber Exam'rs, 1941-NMSC-003, 45 N.M. 57, 109 P.2d 779.

The right to practice a profession or vocation is a property right. Roberts v. State Bd. of Embalmers & Funeral Dirs., 1967-NMSC-257, 78 N.M. 536, 434 P.2d 61.

Business or profession affecting welfare and health may be regulated. — The question of monopoly and restraint of trade must yield to a more important consideration, that of reasonably exercising the police power over a business or profession having a vital relationship to public welfare and health. State v. Collins, 1956-NMSC-046, 61 N.M. 184, 297 P.2d 325.

Constitutionality of commission order relating to primary orders. — Commission's order to a telephone local exchange carrier imposing a state-wide standard of zero primary orders held over 30 days did not violate substantive due process, nor amount to an illegal taking of property or violation of equal protection under the federal or state constitutions. U.S. W. Commc'ns, Inc. v. N.M. SCC, 1997-NMSC-031, 123 N.M. 554, 943 P.2d 1007.

Commission order regarding cost accounting held valid. — State corporation commission's (now public regulation commission) order to a telephone local exchange carrier requiring that all costs of the carrier's service guarantee and alternative programs be booked below-the-line for rate-making purposes was supported by the evidence and was not a penalty. U.S. W. Commc'ns, Inc. v. N.M. SCC, 1997-NMSC-031, 123 N.M. 554, 943 P.2d 1007.

Professional license application procedures. — A constitutional due process analysis under 61-1-3 NMSA 1978, governing application for a professional or occupational license, must consider and balance three factors: (1) the private interest affected, (2) the risk of an erroneous deprivation of the interest with the procedures used, and (3) the government's interest, including the fiscal and administrative burdens of providing additional procedures. Rex, Inc. v. N.M. Mfg. Housing Committee, 2003-NMCA-134, 134 N.M. 533, 80 P.3d 470.

Due process was not violated by issuance of domestic well permits. — Where plaintiff owned adjudicated surface rights in the Mimbres basin to irrigate plaintiff’s farm; the Mimbres basin was a fully appropriated and adjudicated basin and the state engineer had declared the basin closed; plaintiff claimed that 72-12-1.1 NMSA 1978 violated due process, because it authorized the state engineer to issue domestic well permits without determining the availability of unappropriated water and that the domestic wells authorized by the permits would necessarily impair senior water users; the state engineer’s regulations provided that domestic well permits were subject to priority administration; and plaintiff failed to show how the issuance of domestic well permits caused, or would cause, any actual impairment of plaintiff’s water rights, 72-12-1.1 NMSA 1978 did not facially violate plaintiff’s due process rights. Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, aff’g 2011-NMCA-011, 149 N.M. 484, 252 P.3d 708.

Prohibiting banking by those not organized under law is constitutional. — Former State Banking Act (Laws 1915, ch. 67, now repealed) did not violate due process of law where it prohibited engaging in banking business to all except those organized under its provisions. First Thrift & Loan Ass'n v. State ex rel. Robinson, 1956-NMSC-099, 62 N.M. 61, 304 P.2d 582.

Limiting number of insurance agents in town violates due process. — Statute (Laws 1925, ch. 135, § 69) prohibiting more than one agent of fire insurance company in each town offended against due process and special privileges clauses of the constitution. Franklin Fire Ins. Co. v. Montoya, 1926-NMSC-055, 32 N.M. 88, 251 P. 390.

Right to practice law is not absolute. — Granting that membership in the legal profession is a species of property, as that word is employed in the constitution, the right to its enjoyment is not absolute and unfettered by any mode of regulation. Schware v. Board of Bar Exam'rs, 1955-NMSC-081, 60 N.M. 304, 291 P.2d 607, rev'd, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957).

Provision as to prescribing qualifications of municipal judges is not discriminatory. — Section 35-14-3 NMSA 1978 on its face is not discriminatory and does not present an equal protection problem, since New Mexico's scheme does not establish classes of municipalities, some of which must have attorney judges and others which do not, and once a New Mexican municipality has determined the minimum educational and other qualifications for its municipal court judges, all defendants in that municipality are tried by judges that have met these qualifications, so that at the individual municipal court level there is equal treatment for all defendants with respect to the judges having satisfied the same qualifications. Furthermore, in New Mexico there exists an ameliorative feature which insures that if defendants tried before a nonattorney municipal judge want to have an attorney judge, then after trial or upon a nolo contendere or a guilty plea they could seek an immediate trial de novo in district court before an attorney judge. Tsiosdia v. Rainaldi, 1976-NMSC-011, 89 N.M. 70, 547 P.2d 553.

Educational qualifications may be imposed on bar applicants. — The educational qualifications required of applicants before they are permitted to practice law in New Mexico do not violate the fourteenth amendment or this section, 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 Exam’rs, 1956-NMSC-001, 60 N.M. 393, 291 P.2d 1108.

Failure to pass examination justifies denying admission to bar. — When one fails to pass an appropriate and properly administered bar examination, it is not unreasonable to say that he has demonstrated his lack of proficiency in law so as to justify denying him the right to be admitted to the bar. Accordingly, there has been no denial of due process or equal protection. In re Pacheco, 1973-NMSC-101, 85 N.M. 600, 514 P.2d 1297.

Due process not denied without full hearing. — There is a rational basis for according an applicant a full due process hearing in the area of character determinations, and denying such full hearing on the matter of the validity of determinations as to intellectual and learning qualifications arrived at by examination or testing in accordance with recognized procedures and, therefore, petitioner was not denied due process or equal protection of the law by the lack of a full hearing concerning his failure of the bar examination. In re Pacheco, 1973-NMSC-101, 85 N.M. 600, 514 P.2d 1297.

Right to take bar examination may be denied for lack of good character. — The requirement of former Rule III of the rules governing admission to the bar of New Mexico, which provided "that the board of bar examiners may decline to permit any such applicant to take the [bar] examination when not satisfied of his good moral character," which in the same or similar language is universal in this country, could not seriously be challenged as unreasonable. Schware v. Board of Bar Exam'rs, 1955-NMSC-081, 60 N.M. 304, 291 P.2d 607, rev'd, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957) see now Rules 15-103 and 15-302 NMRA.

Applicant may be required to furnish character affidavit. — Applicant to take the New Mexico bar examination had to be shown to be a person of good moral character before he was eligible to take the bar examination, and requiring him to submit an affidavit of an attorney of New Mexico to that effect did not violate this section. Henington v. State Bd. of Bar Exam’rs, 1956-NMSC-001, 60 N.M. 393, 291 P.2d 1108; see now Rules 15-103 and 15-302 NMRA.

Qualifications required must be connected with fitness to practice. — Petitioner was refused admission to the New Mexico bar examination by the board of bar examiners. He later requested a formal hearing on the denial of his application. At the hearing, the board told him for the first time why it had refused permission. Its reasons were: (1) use of aliases by the applicant; (2) former connection with subversive organizations; and (3) his record of arrests, thus failing to satisfy the board as to the requisite moral character for admission to the bar of New Mexico. He appealed to the New Mexico supreme court; the denial was upheld. However, the United States supreme court reversed, holding that a state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the due process or equal protection clause of the fourteenth amendment. A state can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Schware v. Board of Bar Exam'rs, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796, 64 A.L.R.2d 288 (1957), rev’g 1955-NMSC-081, 60 N.M. 304, 291 P.2d 607.

Activity as attorney may be reviewed. — Respondent's contentions that, in some way, he had been denied procedural and substantive due process of law and equal protection of the law has no validity where the conduct charged against him is wholly and entirely concerned with his activity as an attorney. In re Nelson, 1969-NMSC-012, 79 N.M. 779, 450 P.2d 188.

Jockey's license is not vested right. — The license granted a jockey is a privilege similar to that granted to owners and trainers; it is not a vested right within the meaning of the due process clause of the state and federal constitutions. State Racing Comm'n v. McManus, 1970-NMSC-134, 82 N.M. 108, 476 P.2d 767.

Liquor license is not a vested right. — A liquor license is a privilege and not property within the meaning of the due process and contract clauses of the constitutions of New Mexico and the nation, and in them licensees have no vested property rights. Baca v. Grisolano, 1953-NMSC-028, 57 N.M. 176, 256 P.2d 792.

Door-to-door solicitation may be prohibited. — Frequent ringing of door bells of private residences by itinerant solicitors may in fact be a nuisance, and a local ordinance prohibiting such activity is not an unconstitutional taking of property. Green v. Town of Gallup, 1941-NMSC-050, 46 N.M. 71, 120 P.2d 619.

No denial of due process. — Where human services department executives contracted with managed care organizations in such a way that resulted in pharmacists being paid a dispensing fee of less than the statutory amount of $3.65, the pharmacists were not denied due process by the state because the pharmacists were being paid the dispensing fee under contracts the pharmacists voluntarily entered into with the managed care organizations, and because the violation of the substance of the state law is not a violation of a procedural guarantee. Starko, Inc. v. Gallegos, 2006-NMCA-085, 140 N.M. 136, 140 P.3d 1085, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142 P.3d 360.

No denial of due process at pre-termination stage. — Procedural due process does not require the state to provide an employee with an impartial decisionmaker at the pre-termination stage of proceedings, as long as the employee is given access to a neutral post-termination tribunal that can resolve charges of improper motive. Wood v. City of Alamogordo, 2015-NMCA-059.

Where plaintiff employee of the Alamogordo department of public safety elected early retirement rather than being terminated from his employment when he became the subject of domestic abuse allegations, plaintiff’s procedural due process rights were not violated even though his employer made statements demonstrating bias, because plaintiff was not entitled to an impartial decisionmaker at the pre-termination stage and plaintiff’s employer was the person in the best position to know the charges against plaintiff and whether termination was warranted. Wood v. City of Alamogordo, 2015-NMCA-059.

No denial of procedural due process. — Where plaintiff, who was a certified nurse aide, was terminated by a health care facility for abusing residents of the facility; the department of health notified plaintiff that it had found the allegation to be valid; a hearing officer found that plaintiff had abused residents of the facility; the secretary of the department reviewed the hearing officers' report and ordered that plaintiff's name be placed on the nurse registry, effectively ending plaintiff's ability to find employment as a certified nurse aide; the department's regulations applicable to employees required a determination of the severity of abuse for purposes of deciding if an employee was to be placed on the registry; the regulations applicable to nurse aides did not require a determination of the severity of abuse and defined "abuse" to include conduct likely to cause harm to residents; and plaintiff claimed that plaintiff had been denied procedural due process because the regulations did not provide for an assessment of the severity of the alleged abuse or the impact of the abuse on the residents which created a risk of erroneous deprivation of plaintiff's property interest in continuing employment as a nurse aide, the regulations did not deprive plaintiff of procedural due process because the definition of "abuse" was sufficiently specific to put plaintiff on notice of the conduct that constituted abuse and plaintiff's conduct underwent three stages of review before the finding of abuse was placed on the registry. Victor v. N.M. Dep't of Health, 2014-NMCA-012.

Summary suspension provision of the Liquor Control Act violates procedural due process guarantees. — Under the summary suspension provision, Laws 1981, ch. 39, § 103, of the Liquor Control Act, the director is given power to summarily suspend a license and shut down a business without giving notice or requiring a hearing. This provision violates procedural due process guarantees under the New Mexico Constitution. Chronis v. State ex rel. Rodriguez, 1983-NMSC-081, 100 N.M. 342, 670 P.2d 953.

D. TAXATION.

Notice as to the amount of taxation is an essential due process requirement in the collection of property taxes. In re Miller, 1975-NMCA-116, 88 N.M. 492, 542 P.2d 1182, rev’d, 1976-NMSC-039, 89 N.M. 547, 555 P.2d 142.

The guarantee against the taking of property without due process of law, in taxation proceedings, has to do with the essentials of taxation only. All other matters are for the legislature, subject only to the principle that the taxpayer must have notice and opportunity to be heard as to the amount of the charge, either before or after the tax lien is fixed. Maxwell v. Page, 1918-NMSC-002, 23 N.M. 356, 168 P. 492, 5 A.L.R. 155 (1917).

Due process does not require regulations listing procedures and methods of valuation. — Taxpayer was not denied due process because the former property tax department did not adopt regulations that listed the procedures to be followed and identified the methods of valuation in general use by the department and the applicable factors to be included in determining the value of property, since the amended statute did not require regulations, and taxpayer had the right of discovery by deposition of all the facts necessary to defend the assessed valuation of its property. Peterson Properties v. Valencia Cnty. Valuation Protests Bd., 1976-NMCA-043, 89 N.M. 239, 549 P.2d 1074.

Evidence as to one of two valuations methods may be excluded. — Where former 72-29-5 B, 1953 Comp., fixed two methods of determining market value, namely sales of comparable property and the application of generally accepted appraisal techniques, taxpayer's offer of evidence of a valuation of comparable property was not relevant and exclusion of such evidence did not deny taxpayer of due process. Peterson Properties v. Valencia Cnty. Valuation Protests Bd., 1976-NMCA-043, 89 N.M. 239, 549 P.2d 1074.

Distinction may be made in assessing subdivided and unsubdivided agricultural land. — Distinction drawn by former 72-2-14.1, 1953 Comp., between subdivided and unsubdivided agricultural land, for tax valuation purposes, did not offend N.M. Const., art. VIII, § 1, and did not violate due process. Property Appraisal Dep't v. Ransom, 1973-NMCA-015, 84 N.M. 637, 506 P.2d 794.

Due process not violated by tax officials. — Taxation and revenue department did not violate taxpayer's right to due process by: (1) making an assessment before the taxpayer provided pertinent records; (2) targeting the taxpayer because it had no history of reporting compensating taxes; and (3) delaying 18 months from the time of an audit notice to the time of the field audit. Vivigen, Inc. v. Minzner, 1994-NMCA-027, 117 N.M. 224, 870 P.2d 1382.

Reasonable classifications in imposing privilege or excise taxes are permissible. — Reasonable classifications allowing the imposition of privilege taxes by the legislature does not deny equal protection or due process. Sunset Package Store, Inc. v. City of Carlsbad, 1968-NMSC-105, 79 N.M. 260, 442 P.2d 572 (municipal license tax on sellers of alcoholic liquors).

It is for the legislature to adopt classifications for the imposition of excise taxes as it may deem proper, and any reasonable classification cannot be held to deny equal protection or due process. Edmunds v. Bureau of Revenue, 1958-NMSC-112, 64 N.M. 454, 330 P.2d 131.

Taxes on gasoline sales by both city and state are constitutional. — Former Municipal Code sections (Laws 1931, ch. 159) authorizing municipalities to levy tax on gasoline sales in addition to the state excise tax were not obnoxious to due process or equal protection or any other provision of the constitution as double taxation. Cont’l Oil Co. v. City of Santa Fe, 1932-NMSC-064, 36 N.M. 343, 15 P.2d 667.

Taxation of dividends from foreign subsidiaries. — As relevant to the right of a state to tax dividends from foreign subsidiaries, due process requires that the income attributed to a state for tax purposes be rationally related to values connected with the taxing state. F.W. Woolworth Co. v. Taxation & Revenue Dep't, 458 U.S. 354, 102 S. Ct. 3128, 73 L. Ed. 2d 819, reh’g denied, 459 U.S. 961, 103 S. Ct. 274, 74 L. Ed. 2d 213 (1982).

State may take property for failure to pay taxes. — When the requirements of notice and hearing have been met, there is no denial of due process where the title to property is taken by the state for failure of the taxpayer to pay taxes, and this is particularly true when there has been a failure to redeem within the period of grace allowed therefor. State v. Thomson, 1969-NMSC-006, 79 N.M. 748, 449 P.2d 656.

It is not a taking of property without due process to deed property to state after a delinquent tax sale. Yates v. Hawkins, 1942-NMSC-029, 46 N.M. 249, 126 P.2d 476.

Notice of tax sale. — When the state taxation and revenue division holds a tax sale, that is a taking of property by the government, and the notice of such taking must comply with minimum due process standards under the United States and New Mexico constitutions. Patrick v. Rice, 1991-NMCA-063, 112 N.M. 285, 814 P.2d 463, cert. denied, 112 N.M. 308, 815 P.2d 161.

Notice of tax sale was constitutionally inadequate where, although the state taxation and revenue division complied with statutory notice requirements, it failed to conduct a diligent search for the taxpayers' reasonably ascertainable new address. Patrick v. Rice, 1991-NMCA-063, 112 N.M. 285, 814 P.2d 463, cert. denied, 112 N.M. 308, 815 P.2d 161.

The notice of a tax sale was constitutionally inadequate under both the United States and New Mexico constitutions, since the notice was mailed only to the taxpayer's old address, the notice was returned with a stamp indicating that the forwarding address had expired, and the new location of the taxpayer was reasonably ascertainable since she had submitted a change of address to the county assessor. Hoffman v. State Taxation & Revenue Dep't, 1994-NMCA-032, 117 N.M. 263, 871 P.2d 27.

Notice to parties affected by tax sale. — Due process requires that the state must provide notice of sale to parties whose interest in property would be affected by a tax sale, as long as that information is reasonably ascertainable. Brown v. Greig, 1987-NMCA-096, 106 N.M. 202, 740 P.2d 1186, cert. denied, 106 N.M. 174, 740 P.2d 1158.

Where county tax officials and the property tax division were placed on notice that notices to a taxpayer were returned as undeliverable, but they did not check the estate tax records on file in the division's office, which would have indicated that the taxpayer had died and that a personal representative of the decedent's estate had been appointed, along with sufficient information whereby the name and address of the representative was readily ascertainable, the failure of the division to notify the representative invalidated the subsequent tax sale. Fulton v. Cornelius, 1988-NMCA-057, 107 N.M. 362, 758 P.2d 312.

E. NOTICE OF JUDICIAL AND ADMINISTRATIVE PROCEEDINGS.

Constitutionality of specific personal jurisdiction by civil conspiracy. — Under the Due Process Clause, a state may exercise personal jurisdiction over a defendant if the defendant possesses certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Conspiracy jurisdiction satisfies due process if tailored to focus on those aspects of the defendant's conduct that evidence the defendant's purposeful availment of the forum state through participation in a civil conspiracy. Shook v. Wilson, 2025-NMSC-022.

Personal jurisdiction on the basis of a civil conspiracy. — A plaintiff seeking to establish personal jurisdiction over a defendant on the basis of a civil conspiracy must allege with particularity or, on challenge, show that the defendant actively and voluntarily participated in a civil conspiracy, the defendant knew of a co-conspirator's acts in furtherance of the civil conspiracy that occurred in or were aimed at New Mexico, and these acts created minimum contacts with New Mexico such that the defendant could reasonably foresee being brought into court here. Shook v. Wilson, 2025-NMSC-022.

Plaintiffs failed to show grounds for specific personal jurisdiction over defendant law firms. — Where plaintiffs filed lawsuits against a cigarette manufacturer, their nonresident law firms, and several local cigarette retailers and distributors, alleging that the law firms conspired with the cigarette manufacturer and other tobacco industry organizations to misrepresent the dangers of cigarette smoking, leading to plaintiffs' personal injuries, and where the law firms filed motions to dismiss for lack of personal jurisdiction, asserting that plaintiffs could not show that they took any actions related to the suit that specifically occurred in or were aimed at New Mexico and that conspiracy jurisdiction is unconstitutional, the district court erred in denying the motions to dismiss, because although conspiracy jurisdiction is constitutional, there was an absence of specific allegations of fact showing the law firms' conduct in furtherance of the conspiracy. Plaintiffs therefore failed to prima facie show the law firms' active participation in a civil conspiracy to fraudulently misrepresent the health effects of tobacco use and also failed to demonstrate the law firms knew of acts in furtherance of the alleged civil conspiracy, which create minimum contacts with New Mexico. The district court, therefore, lacked jurisdiction over the law firms. Shook v. Wilson, 2025-NMSC-022.

Failure to provide notice of dates of noncompliance with court order. — Where, in a divorce action, the court entered an order which established the husband’s periods of responsibility with the party’s child, the husband filed a motion for an order to show cause why the wife should not be held in contempt for refusing to comply with the court’s order on specific dates; at the hearing on the order to show cause, the husband asserted that the wife had refused to comply with the court’s order on additional dates that were not included in the husband’s motion; the wife was not provided with notice prior to the hearing of the additional dates of noncompliance; and the district court found the wife in contempt for failing to comply with the court’s order on the additional dates, the wife’s due process right to notice was violated and the district court erred when it held the wife in contempt for failing to comply with the scheduling order. Papatheofanis v. Allen, 2009-NMCA-084, 146 N.M. 840, 215 P.3d 778.

Notice of proceeding on oil well spacing increase application. — A proceeding on an oil and gas estate lessee's application for an increase in oil well spacing was adjudicatory, and the lessor was entitled to actual notice under the due process requirements of the New Mexico and United States constitutions. Uhden v. New Mexico Oil Conservation Comm'n, 1991-NMSC-089, 112 N.M. 528, 817 P.2d 721.

Service of process statute may be applied retroactively. — Service of process statute is procedural in nature, and retrospective application does not affect substantial rights in violation of the constitution. Gray v. Armijo, 1962-NMSC-082, 70 N.M. 245, 372 P.2d 821.

Erroneous decision does not alone violate due process. — State cannot be deemed to have violated due process simply because one of its courts, while acting within its jurisdiction, has made an erroneous decision. State v. Orfanakis, 1916-NMSC-041, 22 N.M. 107, 159 P. 674.

All affected by decree must have notice and hearing. — Due process requires that all who may be bound or affected by a decree are entitled to notice and hearing, so that they may have their day in court. State ex rel. Reynolds v. Lewis, 1973-NMSC-035, 84 N.M. 768, 508 P.2d 577; State ex rel. Reynolds v. Allman, 1967-NMSC-078, 78 N.M. 1, 427 P.2d 886; City of Albuquerque v. Reynolds, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.

Lack of notice or hearing denies due process. — Court denied attorney due process of law by entering the judgment of contempt 26 days after the events involved, without notice or hearing. Wollen v. State, 1974-NMSC-009, 86 N.M. 1, 518 P.2d 960, overruled by State v. Stout, 1983-NMSC-094, 100 N.M. 472, 672 P.2d 645.

Under former juvenile code father ordered to attend daughter's delinquency hearing as a witness was denied due process when he was ordered at that hearing to pay support, since he had neither been advised that a judgment might be rendered against him, nor given opportunity to be heard. In re Downs, 1971-NMSC-023, 82 N.M. 319, 481 P.2d 107.

The right to enjoin a party from seeking equitable relief in another court may be exercised in a proper case by a court having jurisdiction in order that its processes not be frustrated and to give complete relief, but it was error for the court in the instant case, without application or hearing, to restrain the appellant from proceeding in any other action in any other court as he may be advised under the circumstances disclosed by the record. Porter v. Robert Porter & Sons, 1961-NMSC-010, 68 N.M. 97, 359 P.2d 134 (not deciding whether any other circumstances would make injunction proper).

A proposed plan of distribution of community grant land disclosed a pronounced absence of primary and elemental concepts of due process and equal protection of the laws, in violation of constitutional guaranties existing in favor of owners of the beneficial interest in the common lands of the grant, where no appearance was entered by anyone representing absent "heirs", there was no authorization of the published notice nor compliance with the rules of civil procedure as to publication and no provision was made for determining who were the true owners or their "heirs". Armijo v. Town of Atrisco, 1957-NMSC-045, 62 N.M. 440, 312 P.2d 91.

Failure to give notice pursuant to Rule 55(b), N.M.R. Civ. P., (now Rule 1-055 B NMRA) providing for entry of a default judgment, coupled with the giving of a default judgment without hearing or notice of hearing, when matters stood at issue, constitutes a violation of the due process clause of this section. Adams & McGahey v. Neill, 1954-NMSC-116, 58 N.M. 782, 276 P.2d 913.

Lack of notice of default judgment. — A district court is not required by Rule 1-055(B), or by due process of law to set aside for lack of notice default judgments entered against a defendant who failed to appear in the action after being personally served with process. Rodriguez v. Conant, 1987-NMSC-040, 105 N.M. 746, 737 P.2d 527.

Notice of damages hearing. — Having failed to appear and to put matters in issue, defendant was not entitled to notice of the damages hearing on constitutional grounds. Rodriguez v. Conant, 1987-NMSC-040, 105 N.M. 746, 737 P.2d 527.

Prejudgment taking of property without notice and hearing is unconstitutional. — Former New Mexico replevin statutes, insofar as they provided for a prejudgment taking of property without notice and hearing, were unconstitutional as a violation of the constitutional prohibition of taking property without due process of law. Montoya v. Blackhurst, 1972-NMSC-058, 84 N.M. 91, 500 P.2d 176.

Modification of judgment not sought or consented to. — Notice and a fair hearing must be afforded both parties to meet the requirements of due process, and therefore a court cannot modify a judgment when neither party has sought such relief and the issue has not been implicitly or explicitly consented to by the parties. Where the husband did not seek a modification of alimony, and neither party consented to a modification, the trial court's improper modification of future alimony was reversible error. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Embodied in the term "procedural due process" is the opportunity to be heard and to present any defense. In re Miller, 1975-NMCA-116, 88 N.M. 492, 542 P.2d 1182, rev’d, 1976-NMSC-039, 89 N.M. 547, 555 P.2d 142.

Notice and hearing must be provided. — Laws relating to community ditches (Laws 1915 §§ 5739 to 5743) were unconstitutional in that they made no provision for notice to owner of meeting of appraisers for purpose of fixing damages, nor for opportunity to be heard thereon. Janes v. West Puerto de Luna Community Ditch, 1917-NMSC-080, 23 N.M. 495, 169 P. 309.

Statute may give adequate constructive notice. — A statute (Laws 1913, ch. 84, § 13) which fixed the time at which the state board of equalization should meet and which gave it power to increase or decrease values without giving actual notice to the persons affected thereby was constructive notice of legal or lawful action taken. W.S. Land & Cattle Co. v. McBridge, 1923-NMSC-010, 28 N.M. 437, 214 P. 576.

Constructive service proper where names and addresses of defendants are not reasonably ascertainable. — In a collateral attack on a 1948 quiet title judgment in San Juan county, in which service of process was accomplished by publication in a weekly newspaper, and where the plaintiffs in the 1948 complaint alleged that after diligent search and inquiry, they had been unable to learn or determine the names, places of residence, addresses and whereabouts of any unknown heirs of any deceased defendants or if any defendants were still living and residing in New Mexico, they could not be located because they had secreted themselves so that personal service of process could not be effected, and where the return of service completed by the sheriff of San Juan county indicated that after diligent search and inquiry, any predecessors-in-interest could not be located and personally served with process, the district court correctly found that the suit in this case constituted an improper collateral attack on the 1948 judgment quieting title in defendants’ predecessors-in-interest, because constructive notice given in the underlying case was sufficiently reasonably calculated under the circumstances as they existed in 1948; constructive service of process by publication satisfies due process if the names and addresses of the defendants to be served are not reasonably ascertainable. T.H. McElvain Oil & Gas Ltd. P’ship v. Benson-Montin-Greer Drilling Corp., 2017-NMSC-004, rev’g 2015-NMCA-004, 340 P.3d 1277.

F. JUDICIAL AND ADMINISTRATIVE PROCEEDINGS.

Amount of punitive damages. — Where the nineteen-year-old decedent backed into an unfenced, unprotected natural gas wellhead operated by the defendant and was burned to death and the defendant knew that there was a hazard of someone colliding with the wellhead, knew that if that happened excruciating bodily harm and death could result, knew that the well site was in a highly traveled area, and knew that erecting a barricade or fence would prevent the hazard, but chose not to barricade the well site, the defendant’s conduct evinced indifference and a reckless disregard for the safety of the public that warranted significant punitive damages and the ratio of punitive damages to compensatory damages of 6.76 to 1 did not violate due process. Jolley v. Energen Resources Corp., 2008-NMCA-164, 145 N.M. 350, 198 P.3d 376, cert. denied, 2008-NMCERT-011, 145 N.M. 531, 202 P.3d 124, cert. denied, 556 U.S. 1129, 129 S. Ct. 1633, 173 L. Ed. 2d 998 (2009).

Procedural defects in award of punitive damages. — Where plaintiffs brought claims against defendants for breach of a mortgage contract, wrongful foreclosure, breach of the covenant of good faith and fair dealing, violations of the Unfair Practices Act, violations of the Home Loan Protection Act (HLPA), and for attorney fees and punitive damages, in connection with a mortgage accidental death insurance policy and defendants' related misapplication of payments and foreclosure on the insured mortgage, and where, following a bench trial, the district court found in favor of plaintiffs on all claims except the HLPA claim, and awarded actual damages and costs as well as punitive damages in the amount of $2,500,000 and post-judgment interest of 15% on the punitive damage award, the district court abused its discretion in its award of punitive damages, because the district court did not address the relationship between plaintiffs' actual damages and the punitive damages awarded and failed to consider the amount that would accomplish but not exceed New Mexico's goals of punishment and deterrence. Dollens v. Wells Fargo Bank, 2021-NMCA-039.

Substantive due process requirements for an award of punitive damages. — Whether a punitive damages award meets substantive due process requirements takes into consideration the degree of reprehensibility of the defendant's misconduct, the disparity between the harm, or potential harm, suffered by the plaintiff and the punitive damages award, and the difference between the punitive damages awarded by the jury and the civil and criminal penalties authorized or imposed in comparable cases. The considerations are listed in descending order of importance: the first is the most important indicium of the reasonableness of a punitive damages award, and the last is the least important indicium. Dollens v. Wells Fargo Bank, 2021-NMCA-039.

Procedural defects in award of punitive damages. — Where plaintiffs brought claims against defendants for breach of a mortgage contract, wrongful foreclosure, breach of the covenant of good faith and fair dealing, violations of the Unfair Practices Act, violations of the Home Loan Protection Act (HLPA), and for attorney fees and punitive damages, in connection with a mortgage accidental death insurance policy, and defendants' related misapplication of payments and foreclosure on the insured mortgage, and where, following a bench trial, the district court found in favor of plaintiffs on all claims except the HLPA claim, and awarded actual damages and costs as well as punitive damages in the amount of $2,500,000 and post-judgment interest of 15% on the punitive damage award, defendants were on sufficient notice that they may be subject to a substantial punitive damages award in this state because defendants' mishandling of the mortgage account through assessing improper fees and misapplying payments was intentional, pervasive, and recidivist, supporting a finding of significant reprehensibility, and defendants' conduct was exploitative, deceptive, and willful, warranting a substantial punitive damages award. Dollens v. Wells Fargo Bank, 2021-NMCA-039.

An accused student does not have a constitutional right to cross-examine student accusers in a school disciplinary proceeding. Scanlon v. Las Cruces Pub. Schs., 2007-NMCA-150, 143 N.M. 48, 172 P.3d 185.

Person affected by class action. — Due process under both state and federal constitutions requires that a person affected by a class action be given notice of the action, and the absence of such notice requires a dismissal of the complaint. Eastham v. Public Employees' Retirement Ass'n Bd., 1976-NMSC-046, 89 N.M. 399, 553 P.2d 679.

Liberty or property may not be taken unfairly. — Under due process every citizen is guaranteed that his liberty or property will not be taken from him unfairly. It also insures that he will be informed of any claim against him and will have a chance to present his side of the case. In re Downs, 1971-NMSC-023, 82 N.M. 319, 481 P.2d 107.

Imposition of sanctions for failure to comply with discovery orders. — Where a party has been warned that failure to comply with the court's discovery orders may result in the imposition of sanctions under Rule 1-037B, N.M.R. Civ. P., and where the court, pursuant to Rule 1-043C, N.M.R. Civ. P., has determined that an evidentiary hearing under the circumstances is not necessary before ruling on a motion to impose sanctions, the imposition of such sanctions does not amount to a denial of due process. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, 26 A.L.R. 4th 705, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981).

It is only where the sanction invoked is more stern than reasonably necessary, so as to rise to the level of a reprisal, that a denial of due process results. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, 26 A.L.R. 4th 705, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981).

Opportunity to present proof on motion to reopen water rights adjudication is necessary. — Unless it can be said that appellants had an opportunity to present proof and failed to do so, or that their motions to reopen the adjudication of their water rights showed a lack of any possible merit on its face, there can be no question that hearing and overruling appellants' motions does not amount to a complete determination of the issues between the parties so as to satisfy the requirements of due process. State ex rel. Reynolds v. Lewis, 1973-NMSC-035, 84 N.M. 768, 508 P.2d 577; State v. Allman, 1967-NMSC-078, 78 N.M. 1, 427 P.2d 886.

The district court did not deprive appellants of due process in its forfeiture of water rights adjudication. — In consolidated appeals that arose from appellants' attempt to modify the point of diversion of water rights that had been dormant for decades, and where, in case 1, the district court, following an expedited inter se proceeding, concluded that appellants, through their predecessors, forfeited all Pecos river water rights in excess of 5,813.6 acre-feet per year and abandoned all but 150 acre-feet per year of the remaining water rights, and where, in case 2, the appellants appealed the district court's denial of their joint motion to intervene in writ of mandamus proceedings filed by appellees seeking that the office of the state engineer suspend or cancel preliminary authorizations for appellants to use the water rights pending the final determination of applications to change the point of diversion of their water rights, the district court did not deprive appellants of due process, because the procedure used in the expedited inter se proceeding properly safeguarded appellants' protected property rights by providing notice of the proceeding to all parties and providing appellants with an opportunity to be heard by allowing appellants to proffer evidence regarding its use of the water rights. Appellants also failed to argue that there was a risk of an erroneous deprivation of its water rights after the trial, and thus failed to demonstrate that there was a reasonable likelihood that the outcome might have been different with additional evidence. Carlsbad Irrigation Dist. v. D'Antonio, 2024-NMCA-024, cert. granted.

Rezoning decision did not violate due process. — Where Developer applied for the rezoning of nearly ten acres of land located adjacent to old Pecos trail in Santa Fe, New Mexico in order to allow a residential, low-density development, and where the governing body of the city of Santa Fe, on recommendation of the planning commission, approved the rezoning request, and where multiple community members and community organizations appealed the decision to the district court, claiming that they did not receive due process during the rezoning proceedings, the district court did not err in affirming the governing body's decision, because the governing body's decision was not contrary to the Santa Fe city code and was generally consistent with the Santa Fe city general plan based on policies regarding affordable housing, infill, and the zoning designation that was articulated in the map the governing body considered in the proceedings, and the procedures afforded the community members, which included a three-day hearing, with notice and an opportunity for the community members to be meaningfully heard by the governing body, both in writing and at the hearing, complied with due process protections . Throne v. Governing Body of City of Santa Fe, 2026-NMCA-029, cert. denied.

Seeking change of custody implicitly involves change of support. — The husband's action for a change of custody implicitly involved the consideration of future child support if a change of custody were made, and although it would have been better practice to plead for modification of child support when seeking a change of custody, failure to do so did not preclude consideration of the issue on due process grounds, since the questions of change of custody and child support are so inextricably related. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

There was no violation of due process at a change of custody hearing where the trial court first heard the husband's evidence regarding custody, including the testimony of the wife as a hostile witness, the wife's attorney extensively cross-examined the husband, and although the wife's attorney had waived his right to cross-examine the wife when she was called as a hostile witness by the husband, her testimony as to custody surfaced in her counterclaim for contempt; a full and fair opportunity to be heard was afforded both parties in this case. Corliss v. Corliss, 1976-NMSC-023, 89 N.M. 235, 549 P.2d 1070.

Neglect and abuse proceedings must be conducted in a manner that affords the parents constitutional due process. The opportunity to confront witnesses in a civil neglect and abuse proceeding is not an absolute right. Instead, the right requires that parents be given a reasonable opportunity to confront and cross-examine a witness, including a child witness. Campos v. Murray, 2006-NMSC-020, 139 N.M. 454, 134 P.3d 741.

Admission of child's hearsay statements in abuse and neglect proceeding. — Whether parents were given due process depends on whether the procedures used for admission of a child's hearsay statements increased the risk of an erroneous finding of abuse, which could lead to the deprivation of the parents' fundamental right to maintain their relationship with the child and whether additional procedural safeguards would eliminate or lower that risk. Campos v. Murray, 2006-NMSC-020, 139 N.M. 454, 134 P.3d 741.

Due process required during hearing on motion for writ of ne exeat. — Due process is required during a hearing on a motion for writ of ne exeat, and is provided when a defendant has timely notice, a reasonable opportunity to be heard, a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence, representation by counsel, and a hearing before an impartial decisionmaker. Atherton v. Gopin, 2015-NMCA-087.

Following entry of summary judgment for over $2,500,000 against defendant for violations of the New Mexico Unfair Practices Act, 57-12-1 NMSA 1978 et seq., the district court issued a writ of ne exeat and ordered defendant to post a ne exeat bond in the amount of $100,000 based on evidence that defendant was about to remove assets from the jurisdiction of the district court, and following a hearing where the district court found that there was evidence that defendant had engaged in complex financial transactions for the purpose of preventing collection of the judgment, that defendant had dissipated assets during the pendency of the case, including the sale of property, and that defendant, who failed to appear at the hearing, had previously testified under oath that he would attend all future hearings in the case and would not flee the jurisdiction, the district court increased the ne exeat bond to $500,000 to prevent further dissipation of assets within the jurisdiction of the court and to secure defendant’s appearance at future proceedings. Defendant’s right to due process of law was not violated where defendant filed a response in opposition to the motion for writ of ne exeat, in which he disputed that he was dissipating assets from the state, where defendant had notice of and was present and represented by counsel at the hearing on the initial motion, where there was no indication in the record that defendant was denied the opportunity to present witnesses at the hearing, and where defendant submitted exhibits for the district court’s review. Atherton v. Gopin, 2015-NMCA-087.

Workers' Compensation Act provision requiring use of the American medical association's guide to evaluate impairment is not violative of due process since it is not arbitrary and ensures a fair and impartial determination of disability. Madrid v. St. Joseph Hosp., 1996-NMSC-064, 122 N.M. 524, 928 P.2d 250.

Farm and ranch laborers exclusion does not survive rational basis review. — Section 52-1-6(A) NMSA 1978, which excludes farm and ranch laborers from the provisions of the Workers’ Compensation Act, creates differential treatment among injured farm and ranch laborers from other employees of agricultural employers, and such a classification is not supported by evidence in the record nor a firm legal rationale sufficient to establish a rational relationship between the exclusion and the purported interests of cost savings to the agricultural industry, the unique administrative challenges created by farm and ranch workers, the unique economic aspects of agriculture, the protection of New Mexico’s farming and ranching traditions, or in the application of tort law for injuries suffered by farm and ranch laborers, while any other workplace injury suffered by an employee of an agricultural employer goes through the workers’ compensation system. Rodriguez v. Brand West Dairy, 2016-NMSC-029, aff’g 2015-NMCA-097, 356 P.3d 546.

Appointment of counsel not always required. — Due process does not require the appointment of counsel in every case where an indigent faces the possibility of imprisonment if found to be in civil contempt for failure to comply with an order of support. State ex rel. Dep’t of Human Servs. v. Rael, 1982-NMSC-042, 97 N.M. 640, 642 P.2d 1099.

State-created procedure cannot vitiate right of access to courts. — When a plaintiff is required to resort to a state-created procedure, the procedure must not vitiate his right of access to the courts. Jiron v. Mahlab, 1983-NMSC-022, 99 N.M. 425, 659 P.2d 311.

Failure to follow constitutional requirements in zone changes. — Where landowners applied to the county commission for a zone change; one of the county commissioners was a first cousin to one of the landowners and the county commissioner refused to recuse from voting on the application, the kinship-based disqualification in Article VI, Section 18 of the New Mexico constitution applied to the county commissioner and the participation of the county commission in the adjudication of the zone change denied petitioners, who opposed the zone change, due process. Los Chavez Cmty. Ass’n v. Valencia Cnty., 2012-NMCA-044, 277 P.3d 475.

Failure to follow statutory procedure in neglect and abuse proceeding denied respondent due process. — Where the parent was charged with neglect and abandonment of the parent’s children; at the end of the hearing, after all evidence had been presented, CYFD asserted in its closing argument that there was sufficient evidence to support a finding of abuse; the court considered CYFD’s argument as a motion to amend to conform to the evidence pursuant to Rule 1-015 NMRA and granted the motion to amend the petition to include a claim of abuse; the court did not hear the issue of abuse; and the court found that the parent neglected and abused the children, the parent’s due process rights were violated by the amendment procedure because the court erred by relying on Rule 1-015 NMRA and by not holding a hearing on the abuse issue as required by Section 32A-1-18 NMSA 1978. State ex rel. CYFD v. Steve C., 2012-NMCA-045, 277 P.3d 484.

Failure to follow state statutory procedure does not necessarily amount to a violation of due process. Bird v. Lankford, 1993-NMCA-128, 116 N.M. 408, 862 P.2d 1267.

Competency determinations implicate due process. — Competency determinations implicate due process rights. A court violates a defendant’s due process rights when it fails to inquire into competency after the defendant presents enough evidence to entitle him to a hearing on the issue. A hearing on the defendant’s competency requires adequate notice, an adversarial hearing before an independent decision-maker, and a written statement from the fact finder clarifying the evidence relied upon and reasons for the decision. State v. Gutierrez, 2015-NMCA-082, cert. denied, 2015-NMCERT-008.

Where defendant was charged with numerous counts of attempted first-degree murder and other serious charges related to an incident where he trapped four adults and two children in a trailer and threatened them with firearms over several hours, the initial district judge, following a competency hearing, found that defendant was not competent to stand trial, that he was dangerous, and that he was not likely to become competent; defendant was then provided a hearing before a different district court judge for the sole purpose of determining whether defendant had mental retardation; the second district court judge found, on her own motion, without notice, and without any argument from the state, that defendant had been proved competent beyond a reasonable doubt; defendant was denied his procedural right to effective and timely notice and the opportunity to present arguments and evidence before having a decision rendered against him as to competency; moreover the district judge, in failing to examine the factors for determining competency, never provided defendant with any justification for the decision and subsequent actions. State v. Gutierrez, 2015-NMCA-082, cert. denied, 2015-NMCERT-008.

The prosecution of a defendant who is incompetent to stand trial violates due process. — Where defendant was tried and convicted of numerous counts of attempted first-degree murder and other serious charges related to an incident where he trapped four adults and two children in a trailer and threatened them with firearms over several hours, the initial district judge found, following a competency hearing prior to trial, that defendant was not competent to stand trial, that he was dangerous, and that he was not likely to become competent; defendant was later provided a hearing before a different district judge for the sole purpose of determining whether defendant had mental retardation; the second district court judge found that defendant had been proved competent beyond a reasonable doubt without making any findings as to whether defendant understood the nature and significance of the proceedings, whether defendant had a factual understanding of the charges or whether defendant was able to assist in his own defense, and, without any evidence presented regarding whether defendant had made or could make progress toward competency, disregarded the prior ruling made by the initial district judge that it was unlikely defendant would attain competency in the future; the evidence presented at the mental retardation hearing was insufficient to rebut the existing presumption that defendant was incompetent to stand trial. Defendant’s trial violated due process. State v. Gutierrez, 2015-NMCA-082, cert. denied, 2015-NMCERT-008.

Administrative proceedings must conform to fundamental principles of justice and the requirements of due process of law; a litigant must be given a full opportunity to be heard with all rights related thereto. In re Miller, 1975-NMCA-116, 88 N.M. 492, 542 P.2d 1182, rev'd, 1976-NMSC-039, 89 N.M. 547, 555 P.2d 142.

Under the Declaratory Judgment Act, an actual controversy must exist to confer jurisdiction on the district courts. — Under the Declaratory Judgment Act, 44-6-1 through 44-6-15 NMSA 1978, courts in New Mexico have jurisdiction to adjudicate and declare rights and legal relations only in cases of actual controversy. An actual controversy is not present unless the issue raised by the litigant is ripe for judicial determination and the litigant has standing. AFSCME v. Board of Cnty. Comm’rs of Bernalillo Cnty., 2016-NMSC-017, vacating 2015-NMCA-070, 352 P.3d 682.

Where union sought to file a prohibited practice claim with the public employees labor relations board rather than with the county labor board, as designated by the labor-management relations ordinances, claiming that filing with the county labor board would deprive the union and its members of due process because the county labor board’s decisions are subject to a biased review by the county commission, the union did not establish the existence of an actual controversy, because the fact that the due process injury would materialize only if the county labor board found a prohibited practice, giving the county commission the right to review, the union failed to satisfy the justiciability requirements of ripeness and the injury-in-fact component of standing, and therefore the district court lacked jurisdiction to decide the merits of the action. AFSCME v. Board of Cnty. Comm’rs of Bernalillo Cnty., 2016-NMSC-017, vacating 2015-NMCA-070, 352 P.3d 682.

Procedural due process in administrative proceedings. — Procedural due process requires a fair and impartial hearing before a trier of fact who is disinterested and free from any form of bias or predisposition regarding the outcome of the case. The inquiry is not whether the tribunal is actually biased or prejudiced, but whether, in the natural course of events, there is 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. There is a presumption that administrative adjudicators perform their duties with honesty and integrity. The burden of overcoming the presumption of impartiality rests on the party making the assertion of bias. AFSCME v. Board of Cnty. Comm’rs of Bernalillo Cnty., 2015-NMCA-070, cert. granted, 2015-NMCERT-006.

County’s dispute resolution procedures do not violate due process rights. — Where plaintiffs, the exclusive bargaining representatives for unionized public employees of Bernalillo county, claimed that the county’s dispute resolution procedures violated the employees’ procedural due process rights to a fair and impartial tribunal because the county commission has a vested interest in the adjudication of disputes and is inclined to favor management personnel over employees based on the facts that the county commission appoints the county manager and the county commission is not bound by the recommendations of the labor board in reviewing prohibited practice complaints, the court of appeals held that the county’s dispute resolution procedures do not violate plaintiffs’ due process rights to a fair and impartial tribunal because plaintiffs failed to present any evidence that the county’s oversight over the county manager indicated an interest sufficient to presume that the county commission is biased in favor of management personnel. AFSCME v. Board of Cnty. Comm’rs of Bernalillo Cnty., 2015-NMCA-070, cert. granted, 2015-NMCERT-006.

City's appeal process challenging the denial of public financing comports with due process. — Where the Albuquerque city clerk denied respondent's application for certification as a participating candidate for the office of mayor, citing two complaints he had received from an opposing candidate asserting improprieties on the part of respondent's campaign in connection with handling of qualifying contributions, and where, in accordance with the city's charter, a city hearing officer held a full day hearing, during which respondent and the city clerk presented documentary evidence and live testimony through direct and cross examination, and where the hearing officer, following the submission of written closing arguments, upheld the city clerk's decision, and where the district court, on direct appeal from the city clerk's decision, concluded that the city failed to provide respondent with minimum due process protections before declining certification and reversed the hearing officer's decision, and where the city clerk held a second hearing on remand from the district court and again denied certification, and where the district court entered a final order affirming the city clerk's decision to deny public funds, and where, on appeal, respondent claimed that due process required that the city provide him with an adversarial hearing with notice and an opportunity to be heard prior to denying public financing, defendant was not entitled to a pre-decision process in this context, because respondent was made fully aware of the complaints upon which the city clerk based his initial decision, the complaints were referred to the board of ethics and that process was ongoing when the city clerk entered his denial. A hearing outside the board of ethics process would not aid in avoiding error or further the search for accuracy as to the allegations in the complaint. Moreover, the city's appeal process allowed a hearing with a full opportunity to produce evidence, call and cross-examine witnesses and argue the facts and the law to as neutral a decision maker as can be obtained in the short time frame set out in the city's election code, and this process was sufficient to protect respondent's due process rights. Gonzales v. Watson, 2024-NMCA-033.

Adoption of conclusions from a previous proceeding denied due process. — Where the PRC entered an order in a case that determined the price floor for promotional offerings by the utility intervenor; in a second case, the PRC incorporated findings from the first case into the order entered in the second case; the findings were based on evidence in the first case, and appellant was a party to the second case but not to the first case, appellant’s due process rights were violated because appellant was denied the opportunity to present evidence and to examine and cross-examine witnesses regarding the PRC’s decision in the first case. TW Telecom of N.M., LLC v. New Mexico Pub. Reg. Comm'n, 2011-NMSC-029, 150 N.M. 12, 256 P.3d 24.

The essence of justice is largely procedural. — Procedural fairness and regularity are the indispensable essence of liberty. In re Miller, 1975-NMCA-116, 88 N.M. 492, 542 P.2d 1182, rev'd, 1976-NMSC-039, 89 N.M. 547, 555 P.2d 142.

Principles of fair and impartial tribunal apply to administrative proceedings as well as to trials; in fact, the rigidity of the requirement that the trier be impartial and unconcerned in the result applies more strictly to an administrative adjudication, where many of the customary safeguards affiliated with court proceedings have been relaxed in the interest of expedition and a supposed administrative efficiency. Reid v. New Mexico Bd. of Exam’rs in Optometry, 1979-NMSC-005, 92 N.M. 414, 589 P.2d 198.

Revocation of teacher’s license did not violate due process. — Where plaintiff was charged with engaging in inappropriate and improper sexual behavior with a fourteen-year-old victim at a charter school; a hearing officer found that the charges against plaintiff had not been proven by a preponderance of the evidence, based in part on the credibility of the witnesses, and recommended that the disciplinary action against plaintiff be dismissed; the secretary of public education reviewed the record and concluded that a preponderance of the evidence warranted revocation; the secretary’s conclusions were supported by the record and were based on the secretary’s analysis of the facts presented by the witnesses, the contradictions in the facts, and the victim’s written statement, plaintiff was not denied due process by the fact that the secretary failed to observe the witnesses’ demeanor or by the secretary’s failure to defer to the hearing officer’s proposed findings of fact. Skowronski v. New Mexico Pub. Educ. Dep’t, 2013-NMCA-034, 298 P.3d 469, cert. granted, 2013-NMCERT-003.

Trier of fact must be disinterested. — At a minimum, a fair and impartial tribunal requires that the trier of fact be disinterested and free from any form of bias or predisposition regarding the outcome of the case, and the inquiry is not whether he is actually biased or prejudiced but whether, in the natural course of events, there is an indication of a possible temptation to an average man sitting as a judge to try the case with bias for or against any issue presented to him. Reid v. New Mexico Bd. of Exam’rs in Optometry, 1979-NMSC-005, 92 N.M. 414, 589 P.2d 198.

Failure to disqualify biased trier of fact denies due process of law. Reid v. New Mexico Bd. of Exam’rs in Optometry, 1979-NMSC-005, 92 N.M. 414, 589 P.2d 198.

Any utilization of 61-1-7 NMSA 1978 which has the effect of allowing an administrative hearing, punitive in nature, to be conducted by a patently prejudiced tribunal must necessarily violate due process. Reid v. New Mexico Bd. of Exam’rs in Optometry, 1979-NMSC-005, 92 N.M. 414, 589 P.2d 198.

Procedural due process embodies right to present witnesses. — A notion of fairness is included within the concept of procedural due process, and accordingly in a hearing before an administrative agency, the agency must examine both sides of the controversy taking and weighing the evidence that is offered and finding facts based on a consideration of the evidence, in order to fairly protect the interests and rights of all who are involved; a refusal to allow witnesses to be called is a denial of procedural due process. In re Miller, 1975-NMCA-116, 88 N.M. 492, 542 P.2d 1182, rev’d, 1976-NMSC-039, 89 N.M. 547, 555 P.2d 142.

Where by unlawfully excluding evidence and denying the right to discovery, the county valuation protests boards curtail taxpayers' right to be heard and to present any defense, and in so doing, they deprived appellants of their constitutionally guaranteed right to procedural due process, taxpayers were entitled to new hearings, at which evidence of valuation of comparable properties or other properties of the same class would be admissible in evidence and would be weighed by the boards in arriving at their decisions. In re Miller, 1975-NMCA-116, 88 N.M. 492, 542 P.2d 1182, rev’d, 1976-NMSC-039, 89 N.M. 547, 555 P.2d 142.

Published procedures must be followed. — By failing to comply with its own published procedures, specifically by failing to give reasons for the proposed change, the environmental planning commission deprived petitioner of notice and the opportunity to prepare an adequate defense to the proposed downzoning, and this was a denial of procedural due process. Miller v. City of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665.

The environmental planning commission deprived petitioner of his right to a meaningful and impartial decision-maker by hearing its own application without providing him with the protection of the procedural safeguards implicit in compliance with existing standards, and this was a denial of procedural due process. Miller v. City of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665.

The city's environmental planning commission acted beyond its authority in initiating the zone change request, contrary to its own established procedures for accepting zone change applications, and as a consequence, denied petitioner, in violation of the requirements of due process, a meaningful and impartial hearing on his properly submitted zone change application; the same result is required even if the city planning department initiated the zone change application, since the planning department acted at the express direction of the planning commission, and, in any event, the application was made without the concurrence of any of the landowners whose interests were involved. Miller v. City of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665.

Even though a landowner has no vested right in a particular zoning classification for his property and his property is subject to rezoning, he still has a right to rely on the requirement that anyone seeking to rezone his property to a more restrictive zoning must show that either there was a mistake in the original zoning or that a substantial change has occurred in the character of the neighborhood since the original zoning to such an extent that the reclassification or change ought to be made, and before a piecemeal zoning change is sought, these principles must be taken into account, particularly when the zoning change of a piece of property is sought by the zoning authority instead of by the owner of the property affected. Miller v. City of Albuquerque, 1976-NMSC-052, 89 N.M. 503, 554 P.2d 665.

Temporary restraint of apparently dangerous and insane person is proper. — Temporary restraint of an apparently insane person, without legal process, prior to institution of proceedings to determine his mental condition, is not improper if his being at large appears dangerous to himself or others. Ex parte Romero, 1947-NMSC-034, 51 N.M. 201, 181 P.2d 811.

Statute requiring or authorizing detention may violate due process. — Statute which provided that a person received at a hospital for voluntary commitment because of some mental disorder shall be held for not more than 10 days after he gives notice in writing of his desire to leave (Laws 1939, ch. 43, § 1, now repealed) violated due process, as did provision that a person may be committed for up to 30 days on the certificate of a physician (Laws 1939, ch. 44, § 2, impliedly repealed by Laws 1941, ch. 75, § 3). Ex parte Romero, 1947-NMSC-034, 51 N.M. 201, 181 P.2d 811.

Effective treatment, not just custodial care, must be furnished. — Mental illness is not a crime, and thus patients must be afforded some type of effective treatment since their liberty is abridged; mere custodial care is not sufficient. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Some rights in criminal cases apply to civil commitments. — The civil commitment process, though technically a civil proceeding, has elements of both criminal and civil proceedings, a hybrid procedure, with some of the rights guaranteed to criminal defendants applicable to defendants in commitment hearings; thus, compliance with the due process requirements, as far as the burden of proof in commitment proceedings for the mentally ill is concerned, is mandated. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Preponderance of evidence standard is unacceptable. — A preponderance of the evidence is definitely constitutionally unacceptable for civil commitment hearings, in view of the fact that fundamental liberties of the patient are so often at stake. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

Clear and convincing proof, not beyond reasonable doubt, suffices. — In the civil commitment situation the interests of the state are pitted against restrictions on the liberty of the individual, in considering whether there exists sufficient state interests to counterbalance the loss of individual liberty; the language of former 34-2-5, 1953 Comp., indicated that the aim of the state is to first protect society from the mentally ill, a manifestation of the state's police power, and also protect the mentally ill from themselves, while at the same time providing care and treatment, as parens patriae. The state's interests are sufficient and the realities of treatment, though not ideal, are adequate to justify subjecting individuals to possible commitment based on a "clear and convincing" standard of proof. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818. See 43-1-2 NMSA 1978 et seq.

Although the highest standard of proof would be desirable, in the civil commitment process, proof beyond a reasonable doubt is too stringent a standard to be applied; proof that is clear, cogent and convincing is the highest standard of proof possible at the current state of the medical arts. For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

G. SPECIFIC STATUTES AND REGULATIONS.

Cap on medical malpractice damages does not violate due process. — The cap on medical malpractice damages in 41-5-6 NMSA 1978 does not violate the due process clause of the United States Constitution. Salopek v. Friedman, 2013-NMCA-087.

The definitions of "convenience store" and "convenience goods" in the environmental improvement board regulations addressing violence against convenience store workers are not unconstitutionally vague. New Mexico Petroleum Marketers Assn. v. New Mexico Envtl. Improvement Bd., 2007-NMCA-060, 141 N.M. 678, 160 P.3d 587.

Rational basis level of review. — No fundamental rights are implicated by the application of the Albuquerque Sex Offender Registration and Notification Act ordinance and a person challenging the ordinance has the burden of showing that the ordinance is not rationally related to a legitimate governmental interest, or the absence of a firm legal rationale for the challenged provisions. ACLU v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215.

The Energy Transition Act does not violate procedural due process. — Where the public regulation commission (Commission) gave leave for the public service company of New Mexico to issue energy transition bonds of up to $361,000,000 in connection with the abandonment of its interests in the San Juan generating station units one and four and to collect separate and non-bypassable energy transition charges from its customers in repayment of the bonds, pursuant to the Energy Transition Act (ETA), §§ 62-18-1 through 62-18-23 NMSA 1978, and where appellants, two organizations that represent energy consumers, claimed that the ETA deprives energy consumers of procedural due process by allowing a qualified public utility to recover its energy transition costs without Commission oversight, appellants procedural due process was without merit, because the ETA as written contemplates that energy consumers will be given sufficient notice of the utility's application and a meaningful opportunity to be heard upon lodging a protest establishing good cause for a formal hearing in front of the Commission. Citizens for Fair Rates & the Env't v. NMPRC, 2022-NMSC-010.

The Energy Transition Act does not violate substantive due process. — Where the public regulation commission (Commission) gave leave for the public service company of New Mexico to issue energy transition bonds of up to $361,000,000 in connection with the abandonment of its interests in the San Juan generating station units one and four and to collect separate and non-bypassable energy transition charges from its customers in repayment of the bonds, pursuant to the Energy Transition Act (ETA), §§ 62-18-1 through 62-18-23 NMSA 1978, and where appellants, two organizations that represent energy consumers, claimed that the ETA does not permit the Commission to review a utility's estimated energy transition costs before issuing a financing order, and that this limitation on the Commission's authority violates substantive due process protections, appellants substantive due process challenge failed, because under the modified rational basis standard, appellants have not brought forth sufficient record evidence, legislative facts, judicially noticeable materials, case law, or legal argument to establish that the ETA lacks a rational relationship to the interests expressed in § 62-3-1(B) NMSA 1978. Citizens for Fair Rates & the Env't v. NMPRC, 2022-NMSC-010.

Substantive due process challenge. — Substantive due process prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty; the appropriate level of scrutiny of a statute challenged under substantive due process grounds depends on the nature and importance of the individual interests asserted and the classifications created by the statute. State v. Murillo, 2015-NMCA-046.

Unconstitutional application of tampering with evidence statute. — Section 30-22-5(B)(4) NMSA 1978 cannot be constitutionally applied to impose greater punishment for commission of tampering where the underlying crime is indeterminate than the punishment prescribed under 30-22-5(B)(3) NMSA 1978 where the underlying crime is a misdemeanor or petty misdemeanor. State v. Radosevich, 2018-NMSC-028, rev'g 2016-NMCA-060, 376 P.3d 871, overruling State v. Jackson, 2010-NMSC-032, 237 P.3d 754 and State v. Alvarado, 2012-NMCA-089.

Where defendant was convicted of fourth-degree tampering with evidence pursuant to 30-22-5(B)(4) NMSA 1978, although the tampering jury instruction did not identify an underlying offense, defendant's conviction for fourth-degree felony tampering with evidence was a denial due process of law, because to impose a greater penalty for commission of tampering pursuant to Subsection (B)(4), where the evidence does not establish the underlying offense, than for commission of tampering pursuant to 30-22-5(B)(3) NMSA 1978, where the evidence establishes an underlying misdemeanor offense, is both a denial of due process of law and a violation of the accused’s right to have a jury determine guilt beyond a reasonable doubt on every element that may establish the range of permissible penalties. State v. Radosevich, 2018-NMSC-028, rev'g 2016-NMCA-060, 376 P.3d 871, overruling State v. Jackson, 2010-NMSC-032, 237 P.3d 754 and State v. Alvarado, 2012-NMCA-089.

Physician aid in dying is not a fundamental liberty interest protected by the due process clause. — Where petitioners, two doctors and their patient, sought declaratory and injunctive relief to the effect that either 30-2-4 NMSA 1978, New Mexico’s criminal statute prohibiting assisted suicide, did not apply to the conduct defined by petitioners as physician aid in dying, or even if the statute did apply to physician aid in dying, such an application would be unconstitutional, petitioners failed to establish a fundamental liberty interest protected by the due process clause of the New Mexico constitution, because there is a firm legal rationale behind the interest in protecting the integrity and ethics of the medical profession, the interest in protecting vulnerable groups, including the poor, the elderly, and disabled persons, from abuse, neglect, and mistakes due to the risk of subtle coercion and undue influence in end-of-life situations, and the legitimate concern that recognizing a right to physician aid in dying will lead to voluntary or involuntary euthanasia. Morris v. Brandenburg, 2016-NMSC-027, aff’g 2015-NMCA-100, 356 P.3d 564.

Aid in dying is not a fundamental liberty interest protected by the due process clause. — Where plaintiffs, two doctors and their terminally ill patient, sought a court declaration that they cannot be prosecuted under 30-2-4 NMSA 1978, alleging that the statute does not apply to aid in dying, and if it does, such application offends the substantive due process protections afforded by N.M. Const., Art. II, § 18, the district court erred in permanently enjoining the state from enforcing 30-2-4 NMSA 1978, because aid in dying is not a fundamental liberty interest protected by the due process clause of N.M. Const., Art. II, § 18 because aid in dying has not been recognized to exist under the due process clause as have other interests that are embedded in our democratic society; therefore a mentally competent, terminally ill patient’s interest in a physician’s assistance in dying is not a fundamental liberty interest under the state constitution Morris v. Brandenberg, 2015-NMCA-100, cert. denied, 2015-NMCERT-008.

Due process exception to medical malpractice statute of repose. — Due process requires that a plaintiff have a reasonable amount of time in which to commence suit after any late-accruing medical malpractice claim has accrued. The due process exception to 41-5-13 NMSA 1978 allows plaintiffs with late-accruing medical malpractice claims, i.e., claims accruing in the last twelve months of the three-year repose period, twelve months from the time of accrual to commence suit. Cahn v. Berryman, 2018-NMSC-002, aff’g 2015-NMCA-078, 355 P.3d 58 and overruling in part Garcia ex rel. Garcia v. LaFarge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428.

Where plaintiff discovered that she had a medical malpractice claim against defendant ten and one-half months before the three-year statute of repose expired, the due process exception to 41-5-13 NMSA 1978 provided plaintiff an additional twelve months in which to commence suit, but where twenty-one months elapsed between the accrual date of plaintiff’s medical malpractice claim and the date she filed suit, plaintiff’s claim was barred by 41-5-13 NMSA 1978. Cahn v. Berryman, 2018-NMSC-002, aff’g 2015-NMCA-078, 355 P.3d 58, overruling in part Garcia ex rel. Garcia v. LaFarge, 1995-NMSC-019, 119 N.M. 532, 893 P.2d 428.

Due process analysis applied to statute of repose. — The legislature may impose a statutory time deadline for commencing a cause of action as long as a reasonable time is provided for commencing suit. If a plaintiff is left with an unconstitutionally short period of time to file suit within the period of statute of repose, due process is violated. To fall under the due process exception to the statute of repose, the case must be unusual and involve exceptional circumstances resulting in an unusually short period of time within which to file suit. Cahn v. Berryman, 2015-NMCA-078, cert. granted, 2015-NMCERT-007.

Section 41-5-13 NMSA 1978 does not violate due process as applied. — Where plaintiff discovered she had a malpractice claim against defendant ten and one-half months before the statute of repose expired, and during the entire ten and one-half months period of time, the means for discovering defendant’s identity were available and within plaintiff’s control, plaintiff’s due process rights were not violated because the ten and one-half month period was a constitutionally reasonable amount of time for plaintiff to bring her medical malpractice suit against defendant; plaintiff’s claims against defendant were barred by 41-5-13 NMSA 1978 when plaintiff filed suit against defendant eleven months after the three-year statute of repose expired. Cahn v. Berryman, 2015-NMCA-078, cert. granted, 2015-NMCERT-007.

Constitutionality of statute making it unlawful to possess a switchblade knife. — Where defendant claimed that prohibiting the possession of switchblade knives violated his right to bear arms guaranteed under U.S. Const., amend. II, as applied to the states under the due process clause of U.S. Const., amend. XIV, the New Mexico court of appeals, applying intermediate scrutiny to 30-7-8 NMSA 1978, held that the statute is not repugnant to the right to bear arms under a federal standard and that defendant’s federal substantive due process challenge fails. State v. Murillo, 2015-NMCA-046.

Practice of medicine. — Section 61-6-15 D(27) NMSA 1978, defining "unprofessional or dishonorable conduct" to include "conduct unbecoming in a person licensed to practice medicine, or detrimental to the best interests of the public" is not void for vagueness. McDaniel v. New Mexico Bd. of Med. Exam’rs, 1974-NMSC-062, 86 N.M. 447, 525 P.2d 374.

Teachers contracts. — Former 73-12-13, 1953 Comp., relating to teachers' contracts, was held not to violate the constitution as being vague, indefinite or uncertain. McCormick v. Board of Educ., 1954-NMSC-094, 58 N.M. 648, 274 P.2d 299, superseded by statute, Sanchez v. Board of Educ. of Town of Belen, 1961-NMSC-081, 68 N.M. 440, 362 P.2d 979.

Regulations may be flexible without being overbroad. — Regulations adopted under the Environmental Improvement Act (Chapter 74, Article 1 NMSA 1978),legislative justification for which is found in such broadly applied terms as public interest, social well-being, environmental degradation and the like, were required to hold the difficult line between overbreadth or vagueness on the one hand and inflexibility and unworkable restriction on the other, and where the difficulty with rigid standards in the field of environmental regulation was readily apparent, it was held that the terms complained of were capable of reasonable application and were sufficient to limit and define the duties of the individuals and entities which would be governed by them. New Mexico Mun. League, Inc. v. New Mexico Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Regulations adopted pursuant to the Environmental Improvement Act (Chapter 74, Article 1 NMSA 1978) requiring that storage facilities shall be fly proof, rodent proof and leak proof were neither unconstitutionally vague nor impossible of accomplishment. New Mexico Mun. League, Inc. v. New Mexico Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Regulations adopted under the Environmental Improvement Act (Chapter 74, Article 1 NMSA 1978) requiring that any vehicle employed in collection or transportation of waste and refuse be cleaned at such times and in such manner as to prevent offensive odors and unsightliness were not constitutionally repugnant for vagueness. The question to be asked is: what might a reasonable person of average sensibilities consider to be an offensive odor or unsightly condition, and the answer is capable of common understanding. New Mexico Mun. League, Inc. v. New Mexico Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Regulation adopted pursuant to the Environmental Improvement Act (Chapter 74, Article 1 NMSA 1978) which provides that prior to the creation or modification of a system for the collection, transportation or disposal of solid waste the person who is operating or will operate the system shall obtain a registration certificate from the agency, where "modification" is defined as any significant change in the physical characteristics or method of operation of a system for the collection, transportation or disposal of solid waste, was not unconstitutionally vague. New Mexico Mun. League, Inc. v. New Mexico Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Requirements of adequate means to prevent and extinguish fires at sanitary landfill sites and of one or more sanitary landfills or other disposal facilities, except modified landfills, for populations exceeding 3,000 and one or more sanitary landfills or other disposal facilities, not excluding modified landfills for populations under 3,000 and of those responsible for disposal of waste collected from parks, recreational areas and highway rest areas, "as necessary," found in regulations adopted under the Environmental Improvement Act (Chapter 74, Article 1 NMSA 1978), were not unconstitutionally vague. New Mexico Mun. League, Inc. v. New Mexico Envtl. Improvement Bd., 1975-NMCA-083, 88 N.M. 201, 539 P.2d 221, cert. denied, 88 N.M. 318, 540 P.2d 248.

Ninety-day torts claim notice provision constitutional. — The 90-day notice provision of the Tort Claims Act (41-4-1 NMSA 1978 et seq.) does not violate the constitutional right of access to the courts. Fulfilling the legislative purpose requires timely and reasonable notice to a governmental entity of potential claims which are rationally related to legitimate governmental interests in order to: (1) allow investigation of a matter while the evidence is fresh; (2) allow questioning of witnesses; (3) protect against stimulated or aggravated claims; and (4) allow consideration of whether a claim should be paid or not. Powell v. New Mexico State Hwy. & Transp. Dep't, 1994-NMCA-035, 117 N.M. 415, 872 P.2d 388, cert. denied, 117 N.M. 524, 873 P.2d 270.

There was nothing arbitrary or discriminatory in the Cigarette Fair Trade Practice Act (former 57-2-1 NMSA 1978 et seq.), denying a wholesaler the right to sell below cost to a direct buying retailer but permitting such wholesaler the right to sell below cost to another wholesaler. Rocky Mt. Whsle. Co. v. Ponca Whsle. Mercantile Co., 1961-NMSC-015, 68 N.M. 228, 360 P.2d 643, appeal dismissed, 368 U.S. 31, 82 S. Ct. 145, 7 L. Ed. 2d 90 (1961).

The Cigarette Fair Trade Practice Act (former 57-2-1 NMSA 1978 et seq.) constituted a reasonable attempt by the state, in the interest of the general welfare, to protect free competition and bore a reasonable relation to the legislative purpose. Rocky Mt. Whsle. Co. v. Ponca Whsle. Mercantile Co., 1961-NMSC-015, 68 N.M. 228, 360 P.2d 643, appeal dismissed, 368 U.S. 31, 82 S. Ct. 145, 7 L. Ed. 2d 90 (1961).

Notice of wrongful death claim against governmental entities. — Section 41-4-6 NMSA 1978, which requires those asserting a wrongful death claim against state or local public bodies to provide notice of the claim within six months, does not violate a claimant's equal protection or due process rights. Marrujo v. New Mexico State Hwy. Transp. Dep't, 1994-NMSC-116, 118 N.M. 753, 887 P.2d 747.

The right to sue the government is not a fundamental right. — Where doctor sued his employer, the board of regents of the university of New Mexico and the university of New Mexico health sciences center, claiming retaliatory violation of due process, and where doctor argued that the Tort Claims Act (TCA) violated his rights to equal protection and to due process because the TCA violated his fundamental right to access to the courts by denying him the right to sue defendants for monetary damages, the district court did not err in determining that plaintiff’s claim was barred by the TCA in that absent a waiver of immunity under the TCA, a person may not sue the state for damages for violation of a state constitutional right; the right to sue the government for tort damages is not a fundamental right, and the right of access to the courts does not create a right to unlimited governmental tort liability and does not guarantee the existence of a remedy. Wills v. Board of Regents of the Univ. of N.M., 2015-NMCA-105, cert. denied, 2015-NMCERT-009.

Tort Claims Act statute of limitations. — Where child was eight years old when she was assaulted and statute of limitations required that she file suit by age ten, it was unreasonable as a matter of law to expect the child to comply with the requirements of the statute of limitations at such a young age, and the application of the statute to the child violated her right to due process of law. Campos v. Murray, 2006-NMSC-020, 139 N.M. 454, 134 P.3d 741.

Corporate charter may be amended although character is changed. — Argument that a statute which attempted to change character of a legal entity from that of a corporation for the management of a community land grant to that of a domestic stock corporation was in violation of this section, in that it was an attempt by the legislature to divest the town of its vested rights without due process of law, was without merit since a state, through its police power, could make reasonable regulations of corporations, including alteration or amendment of corporate charters if that power had been duly reserved by the state, as was done in New Mexico. Westland Dev. Co. v. Saavedra, 1969-NMSC-123, 80 N.M. 615, 459 P.2d 141.

Whatever is meant by "sale" and "conveyance" in 49-2-7 NMSA 1978, the section does not include the procedure enacted to change the character of the corporation itself. To hold otherwise would produce the absurd implication that a land grant corporation could have been converted into a domestic stock corporation by 49-2-7 NMSA 1978 even before the enactment of 49-2-18 NMSA 1978. It would also produce a rather unexplainable conflict between the two provisions. Therefore, due process was not denied for failure to follow 49-2-7 NMSA 1978, since 49-2-18 NMSA 1978 was applicable statute. Westland Dev. Co. v. Saavedra, 1969-NMSC-123, 80 N.M. 615, 459 P.2d 141.

Without providing for personal service or absentee voting. — Argument that 49-2-18 NMSA 1978 lacks due process, because of its failure to require personal service or mailing of written notice of the meeting and its failure to provide for absentee voting, was without merit since there is no inherent right in a stockholder of a corporation to vote by proxy, and since reasonable notice and a fair opportunity are given to the "owners and proprietors" of the grant to attend the meeting at which the proposed corporation is considered. Westland Dev. Co. v. Saavedra, 1969-NMSC-123, 80 N.M. 615, 459 P.2d 141.

Compulsory arbitration is constitutional. — The procedures used in judicial tribunals need not be used in compulsory arbitration, so long as the arbitration procedures are sufficient to guarantee a fair proceeding. Therefore, the provisions of 22-10-17.1 NMSA 1978 mandating compulsory arbitration of the grievances of discharged school employees do not violate an employee's right of access to the courts, or right to jury trial; nor do these provisions unconstitutionally delegate power to a nonjudicial tribunal. Board of Educ. v. Harrell, 1994-NMSC-096, 118 N.M. 470, 882 P.2d 511.

Constitutional regulations and legislation. — Where the former health and social services department determined that plaintiff 's household was ineligible for food stamps, on the grounds that his "net food stamp income" exceeded the maximum allowable and in computing plaintiff 's income the department took into account certain disability insurance benefits which were being paid by the insurer directly to a finance company with whom plaintiff had two loans in accordance with a department regulation defining income to include payments made on behalf of the household by another, it was held that this regulation, as applied, did not deprive plaintiff of due process of law. Huerta v. Health & Social Servs. Dep't, 1974-NMCA-074, 86 N.M. 480, 525 P.2d 407.

The Horse Racing Act (Chapter 60, Article 1 NMSA 1978, repealed) [now Chapter 60, Article 1A NMSA 1978] and the regulations issued thereunder allowing suspension of a licensed jockey prior to a hearing provide constitutionally adequate due process of law. State Racing Comm'n v. McManus, 1970-NMSC-134, 82 N.M. 108, 476 P.2d 767.

Laws 1939, ch. 197, denying an unlicensed contractor redress in the courts of the state for the collection of compensation due under contract, did not contravene the due process clause or deny equal protection of law as guaranteed by this section. Fischer v. Rakagis, 1955-NMSC-057, 59 N.M. 463, 286 P.2d 312; see 60-13-30 NMSA 1978.

Laws 1931, ch. 131, § 1 (72-12-1 NMSA 1978), which declares ownership of underground waters to be in the public, does not violate N.M. Const., art. II, §§ 18 and 20, because patents from the United States issued after 1866, and particularly those issued after Desert Land Act of 1877, conveyed no interest in, or right to, the use of surface or underlying water with which lands could be irrigated, except such portions thereof as were used to reclaim the particular land applied for under the act. State ex rel. Bliss v. Dority, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007, appeal dismissed, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951).

Tax upon gasoline and motor fuel, authorized under portion of repealed Municipal Code (Laws 1947, ch. 122) to pay for special street improvement bonds, was not a taking without due process or a denial of equal protection of the laws. Stone v. City of Hobbs, 1950-NMSC-032, 54 N.M. 237, 220 P.2d 704.

Former 2% privilege tax (1937 amendment to 59-26-31 NMSA 1978) from which certain qualified benefit societies were exempted did not violate the due process and equal protection clauses of this section. Sovereign Camp, W.O.W. v. Casados, 21 F. Supp. 989 (D.N.M.), aff'd, 305 U.S. 558, 59 S. Ct. 79, 83 L. Ed. 352 (1938).

The clause of the Workmen's Compensation Act (Chapter 52, Article 1 NMSA 1978) making provision for allowance of reasonable attorney's fees, is not unconstitutional as repugnant to the due process and equal protection clauses of the federal constitution or this section. New Mexico State Hwy. Dep't v. Bible, 1934-NMSC-025, 38 N.M. 372, 34 P.2d 295.

Laws 1933, ch. 184 (38-3-10 NMSA 1978), as to disqualification of judges, does not deny due process of law or violate this provision. State ex rel. Hannah v. Armijo, 1933-NMSC-087, 38 N.M. 73, 28 P.2d 511.

Sections 73-14-1 to 73-17-24 NMSA 1978, relating to conservancy districts, do not violate the due process clause of this section. Gutierrez v. Middle Rio Grande Conservancy Dist., 1929-NMSC-071, 34 N.M. 346, 282 P. 1, 70 A.L.R. 1261, cert. denied, 280 U.S. 610, 50 S. Ct. 158, 74 L. Ed. 653 (1930).

Laws 1903, ch. 42 (repealed), the Provisional Order Improvement Law for the paving of streets and alleys, as amended, did not violate the due process clause of this section. Hodges v. City of Roswell, 1926-NMSC-016, 31 N.M. 384, 247 P. 310.

Section 36-1-22 NMSA 1978, permitting attorney general and district attorneys to compromise civil actions in which state or county is party, does not violate the due process and equal protection clauses of this section. State v. State Inv. Co., 1925-NMSC-017, 30 N.M. 491, 239 P. 741 (tax suits).

Laws relating to abatement of wasteful artesian wells as nuisances (Laws 1915, §§ 265 to 268) did not violate the due process clause of this section. Eccles v. Ditto, 1917-NMSC-062, 23 N.M. 235, 167 P. 726, 1918B L.R.A. 126; see 72-13-7 NMSA 1978.

Considered together, the pre- and post-termination procedures of the School Personnel Act (22-10A-27 and 22-10A-28 NMSA 1978) comport with due process requirements. West v. San Jon Bd. of Educ., 2003-NMCA-130, 134 N.M. 498, 79 P.3d 842, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

The limitation on attorney fees in 52-1-54 NMSA 1978 is rationally related to government interest in maximizing worker's award and minimizing litigation costs and does not violate equal protection or substantive due process. Wagner v. AGW Consultants, 2005-NMSC-016, 137 N.M. 734, 114 P.3d 1050.

Unconstitutional legislation. — The portion of the 1972 General Appropriation Act, Laws 1972, ch. 98, § 4 K, providing that no person who was classified as a "nonresident" for tuition purposes upon his initial enrollment in a public institution of higher education in the state, could have his status changed to that of a "resident" for tuition purposes unless he had maintained domicile in the state for a period of not less than one year, during which entire period he had not been enrolled, for as many as six hours, in any quarter or semester, as a student in any such institution, was unreasonable, arbitrary and violated the due process and equal protection clauses of the fourteenth amendment to the federal constitution and of this section. Robertson v. Regents of Univ. of N.M., 350 F. Supp. 100 (D.N.M. 1972).

Section 40-4-33, 1953 Comp. (repealed), concerning seizure and sale as estrays of calves or colts confined apart from their mothers and of confined freshly branded animals, was, prior to its amendment by Laws 1919, ch. 52, § 1, unconstitutional as authorizing the taking of private property without due process. Lacey v. Lemmons, 1916-NMSC-056, 22 N.M. 54, 159 P. 949, 1917A L.R.A. 1185.

Durational limits on benefits upheld. — A regulation imposing a 12-month durational limitation on the receipt of general assistance benefits did not violate the due process clause of the New Mexico constitution. Although the right to receive public assistance benefits is important, such right is a matter of statutory entitlement and is not explicitly or implicitly guaranteed by the New Mexico constitution. Moreover, the durational limit was rationally related to the human services department's purpose of conserving limited funds and was not retroactive merely because it utilized the characteristics of a defined group to describe the persons that the statute would affect, even though the defining characteristics arose before the regulation became effective. Howell v. Heim, 1994-NMSC-103, 118 N.M. 500, 882 P.2d 541.

Unemployment benefits are a property interest protected by due process. — New Mexico’s Unemployment Compensation Law, 51-1-1 to 51-1-59 NMSA 1978, creates a constitutionally protected property interest in unemployment benefits. N.M. Dep’t of Workforce Solutions v. Garduño, 2016-NMSC-002, rev’g 2014-NMCA-050, 324 P.3d 377.

Where employee was initially determined to be eligible for unemployment benefits and where she continued to receive benefits during the appeal process, but was unaware that her employer had appealed the award of unemployment benefits because she did not receive notice of the appeal until the department of workforce solutions sent a notice of hearing 130 days after the initial determination of eligibility, the late notice did violate due process because employee was not deprived of an opportunity to be heard, the late notice did not prevent employee from participating in the appeal, and when employee was initially determined to be eligible for benefits, she was given notice of the potential consequences that she may have to pay back benefits to which she was not entitled. N.M. Dep’t of Workforce Solutions v. Garduño, 2016-NMSC-002, rev’g 2014-NMCA-050, 324 P.3d 377.

H. CRIMINAL CASES.

1. IN GENERAL.

Suppression of statement made in police interview. — Where defendant, who was charged with criminal sexual contact of a minor, sought to suppress statements defendant made at a police interview; defendant voluntarily agreed to an interview and to permit a police officer to take defendant to the police station; at the interview, the officer informed defendant that defendant had not been charged with any crime, defendant was not under arrest; and defendant was free to leave at any time; the officer recited the Miranda warnings which defendant indicated that defendant understood; the officer presented defendant with a waiver form, reviewed it orally, and told defendant that defendant did not have to talk; and defendant signed the waiver, defendant’s fifth amendment rights were not violated, defendant’s statements were voluntary, and the district court did not err in denying defendant’s motion to suppress. State v. Garcia, 2013-NMCA-064, 302 P.3d 111, cert. denied, 2013-NMCERT-004.

Deviation from roadblock script. — Where officer, at a DWI roadblock, deviated from a supervisor-prepared script to ask defendant whether he had been drinking, the deviation was not a sufficient invasion into personal privacy and security to render defendant’s roadblock detention unreasonable under the fourteenth amendment. State v. Duarte, 2007-NMCA-012, 140 N.M. 930, 149 P.3d 1027.

Withdrawal of individual prison inmate's visitation privileges without affording that inmate advance notice of the charges against the inmate, an opportunity to be heard and a statement of the evidence and reasons supporting the discipline would violate due process. Cordova v. LeMaster, 2004-NMSC-026, 136 N.M. 217, 96 P.3d 778.

Mere conclusion that due process was denied is not sufficient basis for relief. State v. Crouch, 1967-NMSC-093, 77 N.M. 657, 427 P.2d 19.

There must be showing of prejudice. — Where claims of deprivation of due process are asserted, there must be a showing of prejudice. Deats v. State, 1969-NMSC-029, 80 N.M. 77, 451 P.2d 981, aff'g State v. Montoya, 1968-NMCA-069, 80 N.M. 64, 451 P.2d 557.

There must be a showing of injury. — Not only must there be shown an abuse of discretion, but it must also have been to the injury of the defendant. State v. Nieto, 1967-NMSC-142, 78 N.M. 155, 429 P.2d 353.

There must be a showing of impairment of rights. — A violation of due process can be urged only by those who can show an impairment of their rights in the application of the statute to them. State v. Hines, 1967-NMSC-237, 78 N.M. 471, 432 P.2d 827.

If total result is fair, constitutional right has not been invaded. — In determining whether the deprivation of constitutional rights amounts to a denial of due process, the inquiry on habeas corpus is directed to a review of the entire proceedings, and if the total result was the granting to accused of a fair and deliberate trial, then no constitutional right has been invaded and the proceedings will not be disturbed. Johnson v. Cox, 1963-NMSC-058, 72 N.M. 55, 380 P.2d 199, cert. denied, 375 U.S. 855, 84 S. Ct. 117, 11 L. Ed. 2d 82 (1963).

Nonenforcement of an inapplicable statute does not violate any right of defendant under the concept of due process. Defendant must show how he has been denied due process. State v. Lujan, 1968-NMCA-079, 79 N.M. 525, 445 P.2d 749.

Denial of a naked constitutional right does not invalidate all subsequent proceedings. State v. Selgado, 1967-NMSC-147, 78 N.M. 165, 429 P.2d 363.

Unfairness at first trial is not cured by fair de novo trial. — If two trials are afforded a defendant, then due process requires that fairness and impartiality exist at both trials, and unfairness or partiality at the first trial is not cured if the second de novo trial is fair and impartial. Tsiosdia v. Rainaldi, 1976-NMSC-011, 89 N.M. 70, 547 P.2d 553.

Due process of law does not prohibit classification for legislative purposes. State v. Thompson, 1953-NMSC-072, 57 N.M. 459, 260 P.2d 370 (statute providing penalty for act but excepting railroad employees upheld).

Vague statute violates due process. — The vagueness doctrine is based on notice and applies when a potential actor is exposed to criminal sanctions without a fair warning as to the nature of the proscribed activity, and therefore a statute violates due process if it is so vague that persons of common intelligence must necessarily guess at its meaning. State v. Najera, 1976-NMCA-088, 89 N.M. 522, 554 P.2d 983.

Any statute which forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process. State v. Silva, 1974-NMCA-072, 86 N.M. 543, 525 P.2d 903, cert. denied, 86 N.M. 528, 525 P.2d 888; State v. Orzen, 1972-NMCA-006, 83 N.M. 458, 493 P.2d 768; State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462; State v. Segotta, 1983-NMSC-092, 100 N.M. 498, 672 P.2d 1129.

A reasonable degree of certainty in a criminal statute is an essential of due process of law, and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. State v. Minns, 1969-NMCA-035, 80 N.M. 269, 454 P.2d 355, cert. denied, 80 N.M. 234, 453 P.2d 597; State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92.

Act constituting offense should be defined with certainty. — A penal statute should define the act necessary to constitute an offense with such certainty that a person who violates it must know that his act is criminal when he does it. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92.

Whole statute must be considered. — In determining the question of vagueness, the court will consider a statute as a whole. State v. Najera, 1976-NMCA-088, 89 N.M. 522, 554 P.2d 983; State v. Orzen, 1972-NMCA-006, 83 N.M. 458, 493 P.2d 768; State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462.

Determining degree of crime by amount of harm is not unconstitutional. — Determining the degree of a crime by the amount of the harm done to the victim does not make the statute unconstitutionally vague. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Criminal sexual penetration could be committed by the use of force or coercion without the victim suffering personal injury as a result thereof, and the distinction between second and third degree criminal sexual penetration based on personal injury to the victim is not void for vagueness as a matter of law. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Return to state without warrant or waiver of extradition does not deny due process. — Defendants were not denied due process of law by their arrest in Arizona and return to New Mexico without warrant or waiver of extradition. The power of a court to try a person for a crime is not impaired by the manner with which he is brought within the court's jurisdiction. State v. Millican, 1972-NMSC-064, 84 N.M. 256, 501 P.2d 1076.

Valid arrest brings defendant properly before court. — Where appellant was arrested by drugstore owner who apprehended appellant outside his store in early morning, then appellant was properly arrested without warrant on probable cause, and appellant was properly before the justice of the peace (now magistrate) regardless of validity of final complaint of the store owner. State v. Hudson, 1967-NMSC-164, 78 N.M. 228, 430 P.2d 386.

Intrusion into spouse's home to effect arrest. — Chief of police's unlawful intrusion into spouse's home to effect husband's arrest conducted without her consent violated her right to be free from the deprivation of her property rights without due process of law. Montes v. Gallegos, 812 F. Supp. 1165 (D.N.M. 1992).

Due process requires notice and an opportunity to be heard before bond can be revoked and a defendant remanded to custody. Tijerina v. Baker, 1968-NMSC-009, 78 N.M. 770, 438 P.2d 514.

Due process only requires fair and impartial tribunal. — When analyzed with respect to the tribunal hearing a case, due process generally only requires that the tribunal be fair and impartial. Tsiosdia v. Rainaldi, 1976-NMSC-011, 89 N.M. 70, 547 P.2d 553.

Conviction of an accused while he is legally incompetent violates due process of law. State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803.

Presumption of sanity does not deny a defendant due process of law. It merely gives the defendant the burden of going forward with evidence of insanity; if he meets this burden, his sanity must be proved by the state beyond a reasonable doubt; if he fails to meet this burden, by introducing no evidence of insanity, by offering evidence disbelieved by the jury, or by offering evidence insufficient to rebut the presumption, the presumption of sanity decides the issue. State v. Lujan, 1975-NMSC-017, 87 N.M. 400, 534 P.2d 1112, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 400 (1975).

Examination by defendant's psychiatrist suffices, and under such circumstances, the state has no duty by constitutional mandate to furnish additional mental examinations. State v. Walburt, 1967-NMSC-271, 78 N.M. 605, 435 P.2d 435.

Alibi rule does not violate due process. — Since New Mexico's alibi rule, Rule 32, N.M.R. Crim. P. (now Rule 5-508 NMRA), provides for reciprocal discovery rights and provides ample opportunity for an investigation of the facts, it does not violate due process. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834.

Holding wrongful administrative action. — There is no violation of due process if a state court interpreting a state statute holds that a wrongful administrative action is no defense to a criminal prosecution and requires the defendant to seek correction of the wrongful action in civil proceedings; assuming the curtailment of inspections at defendant's plant was unauthorized, defendant had the choice of complying with the curtailment and thus not slaughtering and selling contrary to the statute, or petitioning the district court to require the inspections to continue, and when he did neither, but proceeded to violate the law, his violation would not be excused on the basis that an administrative official proceeded improperly. State v. Pina, 1977-NMCA-020, 90 N.M. 181, 561 P.2d 43.

Entrapment involves due process. — Entrapment, whether subjective or objective, involves matters of due process under this section. State v. Vallejos, 1997-NMSC-040, 123 N.M. 739, 945 P.2d 957, aff'g in part, rev'g in part 1996-NMCA-086, 122 N.M. 318, 924 P.2d 727.

Entrapment is not a defense of constitutional dimension, and New Mexico is not therefore bound to apply the law as announced by the United States supreme court. State v. Fiechter, 1976-NMSC-006, 89 N.M. 74, 547 P.2d 557, rev'g 1975-NMCA-072, 88 N.M. 437, 540 P.2d 1326.

Entrapment justifies inquiry into defendant's predisposition. — In entrapment cases, the focal issue is the intent or predisposition of the defendant to commit the crime, and if the defendant seeks acquittal by reason of entrapment, he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. State v. Fiechter, 1976-NMSC-006, 89 N.M. 74, 547 P.2d 557, rev'g 1975-NMCA-072, 88 N.M. 437, 540 P.2d 1326.

Death penalty may be constitutional. — Under certain circumstances a citizen's life may be forfeited pursuant to due process of law and all other constitutionally guaranteed rights. State ex rel. Serna v. Hodges, 1976-NMSC-033, 89 N.M. 351, 552 P.2d 787, overruled by State v. Rondeau, 89 N.M. 408, 553 P.2d 688 (former mandatory and fully discretionary death penalty statutes violated prohibition against cruel and unusual punishment).

Juvenile must not be denied any of the protections guaranteed to adults by the constitution. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949.

When a juvenile is transferred to district court for criminal proceedings, all of the rights and safeguards in such cases required by law and the constitution of the United States and the constitution of New Mexico must be accorded him. Williams v. Sanders, 1969-NMSC-124, 80 N.M. 619, 459 P.2d 145.

Juvenile has no right to more protections than adult. — If the procedure is sufficient for adults, the supreme court does not understand that a juvenile has a constitutional right to more. Nothing constitutionally requires that a juvenile receive anything more or better than is accorded an adult. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949.

2. PRETRIAL PROCEEDINGS.

Twenty-seven month charging period. — Where defendant was convicted of first degree criminal sexual penetration and third degree criminal sexual contact of a minor; the charging period was twenty-seven months; the crimes were alleged to have occurred while the victim was between five and seven years old; the victim did not have the capacity to provide particular dates or time periods for the incidents; the incidents occurred on a continuous basis and were not a few isolated events; defendant was often present in the same residence as the victim during the daytime and overnight; the nature of the offenses were such that they did not occur in the presence of other witnesses; because the victim suffered no physical injury, the offenses were not likely to be discovered immediately; according to the victim, defendant had vaginal intercourse with the victim "lots of times" and anal intercourse "about three times", defendant touched the victim’s genitalia "about ten times" and made the victim touch the defendant’s penis "about four times"; and defendant failed to demonstrate that defendant was prejudiced by the lengthy charging period, the charging period was not unreasonable and did not violate defendant’s right to due process. State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 227 P.3d 92, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

Preaccusation delay in juvenile delinquency proceedings. — The due process standard set forth in Gonzales v. State, 11 N.M. 363, 805 P.2d 630 (1991) apples to juveniles. State v. Lorenzo P., 2011-NMCA-013, 149 N.M. 373, 249 P.3d 85, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 262 P.3d 900.

Where a petition was filed against the child nine months after the police received a complaint and seven months after police initially suspected the child; the child presented no evidence of prejudice or intent to delay; the child argued that the child was prejudiced because the delay deprived the child of access to rehabilitative services; the district court had approximately three months between the time the petition was filed and the child turned twenty-one within which to provide rehabilitation services; and the child’s other arguments of prejudice were mere conjectures, the delay between the incident and the filing of the petition did not violate due process. State v. Lorenzo P., 2011-NMCA-013, 149 N.M. 373, 249 P.3d 85, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 262 P.3d 900.

Involuntary antipsychotic drug treatment. — The due process standard to determine whether appropriate circumstances exist to support an order requiring the defendant to submit to unwanted antipsychotic drug treatment solely for the purpose of establishing the defendant’s trial competency is that important governmental interests are at stake; involuntary medication will significantly further the government’s concomitant state interests of trying the defendant for a serious crime and providing the defendant with a fair trial; voluntary medication is necessary to further those interests; and administration of the drugs is medically appropriate. State v. Cantrell, 2008-NMSC-016, 143 N.M. 606, 179 P.3d 1214.

Factually indistinguishable counts. — An indictment that lists a series of identical counts denies the defendant adequate notice of the charges against him and fails to protect him from double jeopardy if the counts cannot be linked to particular, distinguishable criminal acts. State v. Dominguez, 2008-NMCA-029, 143 N.M. 549, 178 P.3d 834, cert. denied, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 672.

Preindictment delay is not grounds for dismissal unless prejudicial. — Where charges against defendant in Bernalillo county were dismissed without prejudice on June 7, 2007 on defendant's motion to dismiss for improper venue; defendant was indicted in Sandoval county for the same charges on December 4, 2008; and defendant provided no evidence or argument to show how defendant was prejudiced by the preindictment delay or that the state intentionally delayed the indictment to gain a tactical advantage, defendant's right to due process was not violated by the pre-indictment delay. State v. Fierro, 2014-NMCA-004, cert. denied, 2013-NMCERT-012.

To obtain a dismissal for preindictment delay defendant must show that he has been substantially prejudiced. Here the contentions of prejudice in the trial court were: (1) that a nine-month delay, between arrest and indictment, was a showing of prejudice, and (2) that because defendant was intoxicated at the time of the offense he had a memory problem which had been compounded by the nine-month delay. Neither claim was a showing of substantial prejudice, and the delay was not a violation of due process. State v. Tafoya, 1977-NMCA-115, 91 N.M. 121, 570 P.2d 1148, modified, Kilpatrick v. State, 1985-NMSC-064, 103 N.M. 52, 702 P.2d 997.

Delay of 40 days between the commission of the offense and the arrest of defendant was not in itself suggestive of prejudice. State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, cert. denied, 82 N.M. 377, 482 P.2d 241, cert. denied, 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 2d 662 (1972).

Where there is nothing in the record indicating that appellant was prejudiced in the delay in arraignment, the delay in holding a preliminary hearing is not a denial of due process. State v. Olguin, 1968-NMSC-012, 78 N.M. 661, 437 P.2d 122.

Unless the preliminary delay in some way deprives an accused of a fair trial, there is no denial of due process of law. This is the rule in the federal as well as in the state courts. State v. Henry, 1967-NMSC-265, 78 N.M. 573, 434 P.2d 692.

Absent prejudice in the fact that 22 days elapsed from the time minor was arrested until he appeared before the juvenile court, when counsel was appointed for him, he has not been denied due process of law. State v. Henry, 1967-NMSC-265, 78 N.M. 573, 434 P.2d 692.

Some personal discomfort, occasioned by being jailed for a few hours awaiting preliminary examination, does not constitute a denial of due process or equal protection, nor can it be said to constitute cruel and unusual punishment. Christie v. Ninth Judicial Dist., 1967-NMSC-236, 78 N.M. 469, 432 P.2d 825.

Undeniably, delay in charging a person as a habitual criminal involves due process. State v. Santillanes, 1982-NMCA-118, 98 N.M. 448, 649 P.2d 516.

Where a defendant was arrested and released, and was indicted approximately 21 months later, and all of his alibi witnesses had died in the interim, any prejudice to the defendant was outweighed by the reasons for the delay. State v. Gonzales, 1990-NMCA-040, 110 N.M. 218, 794 P.2d 361, aff'd, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630.

Defendant failed to establish prejudice to his defense despite thirty-three month preindictment delay. — Where defendant was charged with escape from jail after he failed to return to jail from a release furlough following a probation revocation, and where the record indicated that the state filed a motion seeking enforcement of the sentence imposed at the revocation hearing, but took no further action in the case for two years and nine months when it filed an indictment against defendant, defendant’s constitutional right to due process was not denied because defendant failed to establish prejudice to his defense. State v. Grubb, 2020-NMCA-003.

Information not stating date of offense may be void. — The information charging defendant with sodomy was void for failure to give him notice of the charges against him where it failed to state the date of the offense so as to specify which of three different acts subsequently testified to by the state's principal witness was charged, and defendant's conviction was reversed. State v. Foster, 1974-NMCA-150, 87 N.M. 155, 530 P.2d 949.

Using initials to identify offense denies due process. — The use of initials instead of words in a criminal complaint to identify the offense deprives defendant of due process of law. State v. Raley, 1974-NMCA-024, 86 N.M. 190, 521 P.2d 1031, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Stating common name of offense, date and place suffices. — Where defendant's indictment for criminal trespass charged him with violation of a specific statutory section, stating the common name of the offense, a specific date of the offense, and that the offense occurred in McKinley county, New Mexico, it sufficiently informed defendant of what he must be prepared to meet and did not deprive him of due process. State v. Cutnose, 1974-NMCA-130, 87 N.M. 307, 532 P.2d 896, cert. denied, 87 N.M. 299, 532 P.2d 888.

Reference to repealed section where offense otherwise charged does not violate rights. — Defendant was not deprived of liberty without due process of law nor denied equal protection of the law under this section merely because the information charging him with embezzlement incorrectly referred to a repealed section, since the offense was otherwise sufficiently charged. Smith v. Abram, 1954-NMSC-061, 58 N.M. 404, 271 P.2d 1010.

There is nothing unfair about charging the defendant in the alternative with fraud or embezzlement, particularly where the charges arose out of the same events and carry the same penalties, and defendant is furnished with a most detailed statement of fact, including the complete district attorney's file, police reports and a citation of authorities the state is relying on in support of each of the alternative charges. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.

Waiver of rights in Spanish may satisfy due process. — Where the record reflected defendant's waiver in Spanish of his constitutional rights, the court of appeals took judicial notice of its English interpretation, and agreed with the trial court that the language of the waiver satisfied the requirements of due process. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by City of Albuquerque v. Haywood, 1998-NMCA-029, 124 N.M. 661, 954 P.2d 93.

Waiving jury trial by voluntary guilty plea does not deny rights. — Where the record showed that defendant acknowledged his guilt and the trial court accepted his guilty plea, the court held defendant had waived his right to a jury trial and the execution of that waiver did not deny defendant due process or equal protection. State v. Brill, 1970-NMCA-093, 81 N.M. 785, 474 P.2d 77, cert. denied, 81 N.M. 784, 474 P.2d 76.

Involuntary guilty plea is void. — A judgment and sentence cannot stand if based upon an involuntary plea of guilty induced by an unkept promise of leniency. A guilty plea induced by either promises or threats which deprive it of the character of a voluntary act is void and subject to collateral attack. To withhold the privilege of withdrawing a guilty plea in order to reassume the position occupied prior to its entry would constitute a denial of due process of law. State v. Ortiz, 1967-NMSC-104, 77 N.M. 751, 427 P.2d 264.

Defendant was denied due process where he was deprived of his right to a knowing and voluntary plea. — Where defendant pleaded guilty to second-degree criminal sexual penetration, and where the district court, in the first judgment and sentence (J&S), erred in ordering that defendant serve two years of parole, resulting in an unlawfully short period of mandatory parole, and where, thirteen days later, the district court attempted to correct the sentencing error by entering a second amended J&S, which replaced defendant’s parole period of two years with five-to-twenty years, both of which were illegal sentences, as 31-21-10.1(A)(2) NMSA 1978, requires a sex offender convicted of CSP in the second degree to serve an indeterminate period of supervised parole for not less than five years and up to the natural life of the sex offender, and where defendant challenged the revised parole period in a petition for writ of habeas corpus, and where the district court determined that it had no jurisdiction to correct the illegal parole sentence in the first J&S and accordingly granted defendant’s habeas petition, invalidated and voided the second amended J&S, and reinstated the original two-year parole period, and where the New Mexico supreme court held that a district court has the inherent authority to correct a sentence that is illegal due to clear error, defendant was denied due process because the increased parole period implicated more onerous consequences than the district court’s plea advisement, and therefore defendant’s plea was not knowing and voluntary. Defendant is entitled to an opportunity for plea withdrawal. State v. Romero, 2023-NMSC-008, overruling State v. Torres, 2012-NMCA-026, 272 P.3d 689, overruled by State v. Romero, 2023-NMSC-008.

Plea of nolo contendere. — If a plea of nolo contendere is entered under circumstances which render its acceptance fundamentally unfair or shocking to a sense of justice, the resulting conviction violates the due process clause. State v. Raburn, 1966-NMSC-174, 76 N.M. 681, 417 P.2d 813.

Provisions for certification of juvenile to district court held valid. — The provisions for certification of a juvenile to district court for trial as an adult (see 32A-2-13 NMSA 1978 et seq.) were not so vague, indefinite and lacking in any recognizable standard or criterion for a determination of certification as to deny him equal protection and due process afforded by this section. State v. Jimenez, 1972-NMSC-073, 84 N.M. 335, 503 P.2d 315.

Preliminary hearing is not constitutionally required before delinquency trial. — Under former Juvenile Code, preliminary hearing prior to trial by jury to determine delinquency status was not constitutionally required, since code itself contained adequate safeguards to assure due process and fair treatment, and since proceedings and consequences of conviction under Juvenile Code were significantly different from proceedings and consequences of conviction under criminal law. Williams v. Sanders, 1969-NMSC-124, 80 N.M. 619, 459 P.2d 145.

3. TRIAL PROCEEDINGS.

Standard for courtroom closure. — New Mexico has adopted the "overriding interest" standard for any type of courtroom closure. State v. Turrietta, 2013-NMSC-036, rev’g 2011-NMCA-080, 150 N.M. 195, 258 P.3d 474.

Requirements of overriding interest standard for courtroom closure. — The overriding interest standard for closure of a courtroom requires that the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader that necessary to protect that interest, the district court must consider all reasonable alternatives to closing the proceedings, and the district court must make findings adequate to support the closure. State v. Turrietta, 2013-NMSC-036, rev’g 2011-NMCA-080, 150 N.M. 195, 258 P.3d 474.

Right to public trial was violated. — Where defendant, who was a member of a gang, shot and killed a member of another gang; the state requested that the courtroom be closed during the testimony of cooperating witnesses who were former gang members, because the state believed that gang members would pack the courtroom and intimidate the witnesses so that they would not testify; the witnesses testified that they had experienced threats and violence prior to trial; the state never offered sufficient proof that the threats and violence were directly related to defendant’s case or that a link existed between the threats and violence and the witnesses’ ability or willingness to testify; although the witnesses named gang members who had threatened or intimidated them, the district court excluded more than thirty people from the courtroom, including members of defendant’s family and friends, without knowing whether the excluded people were gang affiliated; the district court did not consider all alternatives to closure, such as increased security or the wait-and-see method; and the district court’s justification for the closure, which was based on the danger to the witnesses and the fact that a gang etching had been found outside the courtroom door, failed to mention any specific threat or possibility of intimidation, defendant’s right to a public trial was violated. State v. Turrietta, 2013-NMSC-036, rev’g 2011-NMCA-080, 150 N.M. 195, 258 P.3d 474.

Failure to determine competency to stand trial. — Where defense counsel raised the issue of defendant’s competency at defendant’s preliminary hearing in magistrate court; the case was then transferred to district court; the district court ordered a competency evaluation of defendant; based on the results of the evaluation, defense counsel was satisfied that defendant was competent to stand trial, and the court entered an order finding defendant competent to stand trial; defense counsel again raised the issue of defendant’s competency on the day of trial, prior to the start of trial; the court took no action and proceeded to trial; during the trial, defendant made noises, talking to someone who was not present in the courtroom; the court admonished defendant not to disrupt the trial; defense counsel attempted, but the court refused, to allow defense counsel to raise the issue of defendant’s competency; the jury returned a verdict of guilty; defense counsel again raised the issue of defendant’s competency; the court then permitted defense counsel to fully raise the issue and instructed defense counsel to request a competency evaluation; based on the evaluation, the court found defendant to be incompetent, but declined to dismiss the charges and proceeded to sentence defendant, defendant was denied due process of law because the court erred when it refused to permit defense counsel to raise the issue of defendant’s competency prior to and during trial, when it failed to stay the proceedings pending a determination of whether a reasonable doubt existed as to defendant’s competency to stand trial, and after finding defendant incompetent. State v. Montoya, 2010-NMCA-067, 148 N.M. 495, 238 P.3d 369, cert. denied, 2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.

No mistrial for defendant’s outburst during trial and subsequent restraint. — Where, during defendant’s trial, defendant had an outburst in court where defendant abruptly stood up and stated, "I’m going to have to go somewhere, man. I can’t handle this"; the outburst occurred as the court was recessing the trial; officers had to restrain defendant; some jurors witnessed the incident; the court polled the jurors individually to determine what they saw and heard and asked them whether what they witnessed would impact their ability to be fair and impartial; more than half of the jurors witnessed the incident; each juror stated that neither the incident nor shackling defendant in the courtroom during the remainder of the trial would affect their fairness and impartiality in deciding the case; and defendant was bound and shackled for the remainder of the trial, the trial court did not abuse its discretion in denying defendant’s motion for mistrial. State v. Swick, 2012-NMSC-018, 279 P.3d 747, aff’g 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462.

Defendant secured in leg irons during trial. — Where defendant was in leg irons for the duration of the trial; defendant did not object to the use of leg irons, other than to request that they be removed if defendant testified; defendant did not testify; there was no indication that the jury saw the leg irons; and the district court stated that it would not remove the leg irons citing safety concerns and recent violent incidents in other states involving unsecured defendants, defendant’s fundamental right to due process was not violated. State v. Johnson, 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523.

District court did not commit fundamental error by keeping the defendant in shackles for the duration of the trial. — Where defendant stood trial for first-degree murder and attempted first-degree murder, the trial court did not commit fundamental error by keeping the defendant in shackles for the duration of the trial where there was no showing that the jury had seen the defendant’s shackles; where a defendant is restrained in a manner not visible to the jury, prejudice is not presumed. State v. Torres, 2018-NMSC-013.

A defendant does not have a right to join his counsel for sidebar conferences with the court. — Where defendant stood trial for first-degree murder and attempted first-degree murder, and where the trial court kept defendant in shackles for the duration of the trial so that defendant was unable to attend sidebar conferences during trial, defendant was not denied a fair trial, because defendant was represented by his attorney at all sidebar conferences, the shackles did not prevent defendant from communicating with counsel, and there is no constitutional right to join defense counsel at sidebar conferences. State v. Torres, 2018-NMSC-013.

Conviction of indistinguishable counts. — Where defendant was convicted of two counts of first degree criminal sexual penetration of a minor for vaginal penetration and two counts of first degree criminal sexual penetration of a minor for anal penetration; the state factually alleged that the charges arose out of one of four specific incidents; and at trial, the victim only described a pattern of vaginal CSPM and anal CSPM and said that each happened "lots of times", without relating any act to a specific incident, defendant’s convictions violated defendant’s right to due process, because the counts of vaginal CSPM were factually indistinguishable and the counts of anal CSPM were factually indistinguishable. State v. Tafoya, 2010-NMCA-010, 147 N.M. 602, 227 P.3d 92, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

Due process requires adequate notice of the charges against a defendant. — Where the state charged defendant with twenty-four individual counts of child abuse based upon the child victim’s allegations that defendant and his sons assaulted him with a stun gun numerous times between August and October 2010, the indictment did not provide notice as to any specific instance in which defendant was alleged to be the principal abuser nor did it provide notice as to any specific instance in which defendant was alleged to be an accomplice to abuse inflicted by others. Defendant’s constitutional rights to due process were violated. State v. Vargas, 2016-NMCA-038.

Sharing interpreters. — Where the trial court used a single interpreter to interpret for both the defendant, who was Vietnamese, and a Vietnamese juror; the interpreter was available to the defendant at all times; the defendant did not show prejudice; and the defendant’s attorney suggested the procedure, there was neither structural nor fundamental error. State v. Nguyen, 2008-NMCA-073, 144 N.M. 197, 185 P.3d 368, cert. denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932.

Courts have power and duty to provide fair trial. — The courts of general jurisdiction have the inherent power to do whatever may be done under the general principles of jurisprudence to insure to the citizen a fair trial, whenever his life, liberty, property or character is at stake. The possession of such power involves its exercise as a duty whenever public or private interests require. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

Facts of prior convictions. — Defendant is not entitled to have a jury find the facts of his prior convictions beyond a reasonable doubt under this section. State v. Sandoval, 2004-NMCA-046, 135 N.M. 420, 89 P.3d 92, cert. denied, 2004-NMCERT-004, 135 N.M. 562, 91 P.3d 603.

Multiplicity of counts held not unfair. — Where four of the eight counts against defendant were dismissed, and the jury acquitted on two counts and convicted on two counts, his argument that the multiplicity of counts and the evidence introduced in connection with those counts deprived him of a fair trial was not supported by the record. State v. Lucero, 1977-NMCA-021, 90 N.M. 342, 563 P.2d 605, cert. denied, 90 N.M. 636, 567 P.2d 485.

Municipal judge need not be attorney. — Fairness is not so inextricably tied to the education of an attorney that without a legal education a municipal court judge cannot be fair. Tsiosdia v. Rainaldi, 1976-NMSC-011, 89 N.M. 70, 547 P.2d 553.

Allowing nonattorney police court judges to preside over criminal cases arising from violations of municipal ordinances which are punishable by incarceration does not violate rights guaranteed by the state and federal constitutions. Tsiosdia v. Rainaldi, 1976-NMSC-011, 89 N.M. 70, 547 P.2d 553.

Peremptory challenges by multiple defendants. — In a prosecution for first degree murder, the defendant was not denied due process of law because the trial court failed to permit him to exercise 12 peremptory challenges for himself, but instead allowed the defendant and codefendant a total of 14 challenges. Multiple defendants have no constitutional right to more peremptory challenges than given them by rule, provided they are given a fair trial by an impartial jury. State v. Sutphin, 1988-NMSC-031, 107 N.M. 126, 753 P.2d 1314.

Due process requires proof beyond reasonable doubt. — Proof beyond a reasonable doubt is the traditional burden which our system of criminal justice deems essential, and the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged; this standard applies not only to factual determinations of guilt, but also to the factual determination that a firearm was used, because that fact is a predicate for enhancing defendant's sentence. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd in part, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

Court's failure to call eyewitnesses itself does not deny due process. — Refusal of trial court to call eyewitnesses to a killing as witnesses of the court did not deny due process to defendant. Absent a rare instance, such as where the prosecuting attorney informed the court that a witness was available, but the prosecutor declined to call him because he could not vouch for his truthfulness and veracity, the trial court should not call a witness in a criminal case, particularly where the case is being tried before a jury. State v. McFerran, 1969-NMCA-084, 80 N.M. 622, 459 P.2d 148, cert. denied, 80 N.M. 731, 460 P.2d 261.

No right to demand immunity for defense witness. — A defendant has no sixth amendment right to demand that any witness he chooses be immunized, and the prosecution's refusal to grant immunity to a defense witness who would allegedly offer exculpatory testimony to a defendant does not amount to a denial of due process or a violation of sixth amendment rights. State v. Sanchez, 1982-NMCA-105, 98 N.M. 428, 649 P.2d 496, cert. denied, 98 N.M. 478, 649 P.2d 1391, overruled by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.2d 783.

A ruling on a motion for continuance rests within the sound discretion of the court and will not be interfered with unless the record shows an abuse of such discretion. State v. Nieto, 1967-NMSC-142, 78 N.M. 155, 429 P.2d 353.

Improper comment upon consequences of verdict. — Judge who was critical of the legal system during voir dire, implying that the system is governed by legislative whim rather than by well-settled principles, and who told the jury during trial of the consequences of their verdict, in terms of the mandated sentences for first- and second-degree murder, committed reversible error by depriving defendant of a fair trial. State v. Henderson, 1998-NMSC-018, 125 N.M. 434, 963 P.2d 511.

Trial judge's remarks held not to prevent fair trial. — Comments by the trial court to defense counsel that "you shouldn't be calling people like that as a witness," referring to an individual who had not been called by the defense, and that "if you don't want your witnesses cross-examined, don't call them," although indicative of impatience, did not display bias against or in favor of a party, nor did they amount to an undue interference by the trial court or show such a severe attitude that proper presentation of the cases was prevented, and consequently, the remarks did not deprive defendant of a fair trial. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485.

The evidentiary basis for the indictment was not a matter for argument to the trial jury because it was irrelevant to the question of guilt or innocence, and the trial court could properly interrupt counsel's argument and require that the argument stay within matters pertinent to the trial; the interruption did not amount to judicial misconduct nor deny defendant a fair trial. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485.

Instructions held to justify overruling objections to prosecutor's argument. — The trial court had wide discretion in dealing with counsel's argument, and did not abuse its discretion in overruling defendant's objections to the prosecutor's closing remarks about collateral offenses committed by defendant where the jury was instructed on three occasions - during the cross-examination of the psychologist, the cross-examination of the psychiatrist and upon final submission of the case to them - that references to such collateral offenses and to the fingerprint went only to the credibility of the experts and were not to be considered on the question of guilt. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720.

Reading law on pardon and parole to jury does not deny due process. — That the trial court, in response to a question by the jury during the course of their deliberations, read to the jury the constitutional provision and the laws concerning pardon and parole did not deprive petitioner of a fair and impartial trial or of life and liberty without due process of law. Nelson v. Cox, 1960-NMSC-005, 66 N.M. 397, 349 P.2d 118.

General intent instruction involves no presumption. — The existence or nonexistence of general criminal intent is a question of fact for the jury, and the general intent instruction submitted the issue to the jury as a question of fact; no presumption was involved in the instruction given. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd in part, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

Instructions on effect of voluntary intoxication on intent may be refused. — Defendant's argument that since voluntary intoxication is not a defense to the existence of a general criminal intent, a general criminal intent is always conclusively presumed from the doing of the prohibited act, that conclusive presumptions are unconstitutional and thus the refusal of requested instructions on the effect of intoxication on defendant's ability to form a general criminal intent denied defendant the right to put on a defense was patently meritless. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, rev'd in part, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

Instruction on exculpatory statements in confession held properly refused. — The trial court was not in error when it refused to give a requested instruction on exculpatory statements contained in defendant's confession, where the court adequately instructed as to self defense and defendant voluntarily took the stand and his own testimony corresponded to the exculpatory matter contained in the confession introduced by the state. State v. Casaus, 1963-NMSC-194, 73 N.M. 152, 386 P.2d 246.

Jury instructions as to accomplice testimony. — Trial court's refusal to use jury instruction tendered by defendant admonishing the jury to weigh accomplice testimony with greater care than other testimony, was proper under New Mexico law and practice, and did not violate defendant's constitutional right to due process. State v. Sarracino, 1998-NMSC-022, 125 N.M. 511, 964 P.2d 72.

Inquiry as to the numerical division of a jury is error in itself, because the error goes to a fair and impartial trial, and thus violates due process. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284 (giving rule prospective operation).

Where the jury had been deliberating from 3:10 p.m. until midnight, with a break for dinner, and after the trial court inquired and was informed that the numerical division was 11 to one, it gave the shotgun instruction over defendant's objection, this instruction was a lecture to one juror; within 25 minutes of this lecture, a guilty verdict was returned, and the court of appeals held that the inquiry as to numerical division followed by the shotgun instruction was coercive conduct requiring reversal. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284.

Communication with juror is presumptively prejudicial. — In a criminal case any private communication, contact or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, under due process deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. State v. Gutierrez, 1967-NMCA-024, 78 N.M. 529, 433 P.2d 508.

Probable or inherent prejudice requires new trial. — If the situation involves probable prejudice or inherent prejudice, there must be a new trial. State v. Gutierrez, 1967-NMCA-024, 78 N.M. 529, 433 P.2d 508.

Disqualification of jurors on basis of gender prohibited. — New Mexico Const., art. II, §§ 14 and 18 preclude the state from using its peremptory challenges to strike jurors because of gender in a criminal case. State v. Gonzales, 1991-NMCA-007, 111 N.M. 590, 808 P.2d 40, cert. denied, 111 N.M. 416, 806 P.2d 65, modified, State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

To raise and resolve allegations of intentional discrimination on the basis of gender, a defendant must make a prima facie showing that the prosecution has used its peremptory challenges to purposefully discriminate against an excluded group. This prima facie showing may be made by showing 1) that the state has exercised its peremptory challenges to remove members of a cognizable group from the jury panel, and 2) that these facts and any other relevant circumstances raise an inference that the state used its challenges to exclude members of the panel solely on account of their membership in the excluded group. State v. Gonzales, 1991-NMCA-007, 111 N.M. 590, 808 P.2d 40, cert. denied, 111 N.M. 416, 806 P.2d 65, modified, State v. Dominguez, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147.

Denying mistrial is decision that presumption was overcome. — It was for the trial court to determine whether the presumption of prejudice arising from unauthorized contact indirect or otherwise with the jury had been overcome. In denying the motion for a mistrial, the trial court, in effect, ruled that the presumption of prejudice had been overcome. State v. Gutierrez, 1967-NMCA-024, 78 N.M. 529, 433 P.2d 508.

"Make a wise decision" is not prejudicial. — No probable or inherent prejudice exists in the communication "make a wise decision". State v. Gutierrez, 1967-NMCA-024, 78 N.M. 529, 433 P.2d 508.

"Return a verdict" is not prejudicial. — Under standards of due process, any unauthorized communication with a juror is presumptively prejudicial, but the record affirmatively showed no prejudice and overcame the presumption of prejudice where the jury was "ready to return a verdict", it informed the judge of this fact and, in addition, that one juror feared reprisal, and where the judge said no more than "return a verdict". State v. Maes, 1970-NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, 81 N.M. 588, 470 P.2d 309.

Communication after verdict has been returned. — Conversation between judge and one juror concerning juror's fear of reprisal could not prejudice verdict which had already been received. State v. Maes, 1970-NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, 81 N.M. 588, 470 P.2d 309.

Combination of factors invading rights. — Failure to grant a continuance to allow defendant a reasonable time to prepare and present a defense, denial of his rights to subpoena witnesses and to have medical records produced, and granting the state's motion to suppress any evidence going to defendant's mental or physical condition, invaded defendant's constitutional rights to due process and a fair trial. March v. State, 1987-NMSC-020, 105 N.M. 453, 734 P.2d 231.

Mistrial not necessitated by juror's comment, following presentation of evidence, regarding defendant's dangerousness. — A juror's comment in open court that defendant should not be allowed close proximity to a gun and shells did not necessitate a mistrial since the juror's comment clearly came after most of the evidence in the case had been presented and where there was ample evidence to support juror's conclusion that defendant was a dangerous person and the trial court immediately gave curative instructions. State v. Price, 1986-NMCA-036, 104 N.M. 703, 726 P.2d 857, cert. quashed, 104 N.M. 702, 726 P.2d 856, modified, State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.

Omitted necessary instruction on specific intent fundamental error. — The failure to instruct as to specific intent, when the conviction for the crime requires proof of specific intent, amounts to fundamental, reversible error. In such circumstances, the omitted instruction as to specific intent is a substantial and material omission. State v. Shade, 1986-NMCA-072, 104 N.M. 710, 726 P.2d 864, cert. quashed, 104 N.M. 702, 726 P.2d 856, overruled by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92.

Summary contempt proceeding is proper for refusal to testify. — A refusal to answer questions in the presence of the court is a proper matter to be dealt with summarily, particularly where the witness is given opportunity to explain the basis of her refusal to the court, and there was no violation of due process on the basis that the court proceeded summarily. State v. Sanchez, 1976-NMCA-104, 89 N.M. 673, 556 P.2d 359.

Where the trial court took great care to make sure that a witness understood the question posed by the prosecution which she refused to answer and understood that she could be held in contempt if she persisted in her refusal to answer, even allowing her time to confer with her attorney, and made it clear that she could purge herself of the contempt by answering the questions in the presence of the jury, the summary contempt proceeding did not violate her right to due process. State v. Sanchez, 1976-NMCA-104, 89 N.M. 673, 556 P.2d 359.

Summary proceeding is proper even if proceeding is not labeled criminal. — Where a witness sentenced for contempt had notice that her refusal to answer would be a contempt and that sanctions in the form of a jail sentence or fine might be imposed, she was not deprived of due process on a theory of lack of notice because the court failed to label the contempt proceedings criminal. State v. Sanchez, 1976-NMCA-104, 89 N.M. 673, 556 P.2d 359.

4. SENTENCING, APPEALS, PROBATION.

Confrontation of witnesses at probation revocation hearings. — The right to confront and cross-examine witnesses at probation revocation hearings is guaranteed by the due process clause of the fourteenth amendment, not by the confrontation clause of the sixth amendment. State v. Guthrie, 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, rev’d, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.

Before revoking a defendant’s probation based on hearsay, the district court must make a specific finding of good cause for not requiring confrontation by specifically addressing the state’s problems in securing the presence of an absent witness or specifically stating the reasons that the hearsay evidence offered has particular indicia of accuracy and reliability such that it has probative value. State v. Guthrie, 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, rev’d, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.

Where the defendant’s probation officer did not appear at the hearing to revoke the defendant’s probation; the only witness who testified at the hearing was the probation officer’s supervisor who was the custodian of probation violation reports filed by probation officers; the supervisor had no personal knowledge of the defendant’s case except for what was contained in the probation officer’s file; the supervisor read into evidence statements that were in the defendant’s probation file; and the district court did not state any reasons why the evidence was sufficiently accurate or reliable so as to excuse the presence of the defendant’s probation officer, the district court failed to make a specific finding of good cause for not calling the defendant’s probation officer as a witness and the revocation of the defendant’s probation based on the supervisor’s testimony about statements included in the defendant’s file violated the defendant’s due process rights. State v. Guthrie, 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, rev’d, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.

Where defendant was placed under supervised probation on the condition that defendant complete a sex offender specific therapy program to include polygraph testing as deemed necessary by the therapist; at defendant’s probation revocation hearing for failure to complete the program, the head of the forensic therapy service at the sex offender treatment center at which defendant was a patient, rather than the individual who actually administered and interpreted the polygraph test, was allowed to testify about the results of defendant’s polygraph examination; and the polygraph test was central to proving the probation violation, because defendant was terminated from the program based on the interpretation and judgment-based determination of the individual who administered the polygraph test that defendant failed to admit the sexual offenses with which defendant was charged and could not be treated, defendant’s fourth amendment right to due process was violated. State v. Castillo, 2012-NMCA-116, 290 P.3d 727, cert. denied, 2012-NMCERT-010.

Sex Offender Registration and Notification Act does not violate either the federal or the state due process clause. State v. Druktenis, 2004-NMCA-032, 135 N.M. 223, 86 P.3d 1050.

Sex offender registration for kidnapping and false imprisonment. — The inclusion of kidnapping and false imprisonment as convictions requiring registration as a sex offender under the Albuquerque Sex Offender Registration and Notification Act ordinance is not rationally related to the legitimate interest of the city in protecting victims or potential victims of sex offenders because there is no firm legal rationale for including offenses with no sexual motivation as sex offenses and violates due process. ACLU v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215.

Public dissemination of sex offender information. — The requirement of the Albuquerque Sex Offender Registration and Notification Act ordinance that sex offender registration be included on city's website is rationally related to the city's interest in allowing the public and authorities to identify sex offenders accurately and to know their whereabouts and does not violate due process. ACLU v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215.

Sex offender location. — The provision of the Albuquerque Sex Offender Registration and Notification Act ordinance that, after the effective date of the ordinance, sex offenders are prohibited from occupying a residence within 1,000 feet of a school is rationally related to the city's interest in protecting children from sex offenders by preventing them from living within 1,000 feet of places where children congregate and does not violate due process. ACLU v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215.

Different sex offender registration requirements for residents and non-residents. — Where provisions of the Albuquerque Sex Offender Registration and Notification Act ordinance do not require registration of convicted sex offenders who reside in New Mexico and who are most likely to have the means and opportunity to re-offend in the city, but require registration of offenders who were convicted of sex offenses outside of New Mexico, who reside outside the state, and who are in the city only a limited number of days, the provisions are not rationally related to the city's interest in protecting citizens from sex offenders and violate equal protection guarantees. ACLU v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215.

Discrimination between sex offenders who are related to a child. — Where provisions of the Albuquerque Sex Offender Registration and Notification Act ordinance permit a grandparent sex offender to be alone with a grandchild, but prohibit a stepfather, brother or sister sex offender from being alone with a stepchild, brother or sister, the provisions are not rationally related to a legitimate governmental interest and violate equal protection guarantees. ACLU v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215.

Preservation of constitutional claim. — By tendering a proposed jury instruction to the court, defendant adequately preserved his right to appeal on the grounds that the instructions used violated his right to due process under the state constitutional claim. State v. Sarracino, 1998-NMSC-022, 125 N.M. 511, 964 P.2d 72.

Only constitutionality of statute under which convicted may be challenged. — Where defendant was convicted of violating 30-22-25 NMSA 1978, which is a lesser included offense of 30-22-23 NMSA 1978, which was charged in the indictment, his rights under the latter statute were not at issue, and he had no standing to challenge its constitutionality. State v. Bojorquez, 1975-NMCA-075, 88 N.M. 154, 538 P.2d 796, cert. denied, 88 N.M. 318, 540 P.2d 248.

If conviction was of lower crime, vagueness in distinguishing higher crime not considered. — Defendant's claims that definitional distinctions which go to the difference between first and second degree criminal sexual penetration are unconstitutionally vague were not considered by the court of appeals when defendant was convicted of second degree criminal sexual penetration. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Indeterminate sentence is not void. — The discretion vested in the probation and parole officials in determining reductions from the maximum sentence do not make an indeterminate sentence void for vagueness as a general proposition. State v. Deats, 1971-NMCA-136, 83 N.M. 154, 489 P.2d 662.

Aggravation of DWI conviction. — Aggravation of the defendant's DWI conviction under 66-8-102 NMSA 1978 for his refusal to submit to a chemical test even though he was not advised of the criminal consequences of that refusal did not violate federal or state due process provisions. State v. Kanikaynar, 1997-NMCA-036, 123 N.M. 283, 939 P.2d 1091; Kanikaynar v. Sisneros, 190 F.3d 1115 (10th Cir. 1999), cert. denied, 528 U.S. 1090, 120 S. Ct. 821, 145 L. Ed. 2d 691 (2000).

Lack of good-time credit for presentence confinement constitutional. — New Mexico's statutory scheme, which does not allow good-time credit for presentence confinement, does not offend the equal protection and due process guarantees of the New Mexico and United States constitutions. Enright v. State, 1986-NMSC-070, 104 N.M. 672, 726 P.2d 349.

No constitutional liberty interest in prisoner's good-time credits. – The unilateral revocation of a prisoner's erroneously granted good-time credits did not violate the due process clause of the constitution; because the granting of those credits was error in the first place, the petitioner did not have a liberty interest in them. Compton v. Lytle, 2003-NMSC-031, 134 N.M. 586, 81 P.3d 39 (decided under federal constitution), superseded by statute, State v. Tafoya, 2010-NMSC-019, 237 P.3d 693.

Not crediting time served under void sentence does not deny due process. — Time served by a defendant under a void conviction and sentence will not be credited upon another sentence imposed upon defendant under a conviction for a different offense, and failure to give him such credit does not deprive him of his liberty without due process of law in violation of this section. State v. Rhodes, 1967-NMSC-052, 77 N.M. 536, 425 P.2d 47.

Good-time credit scheme. — State's statutory scheme making prisoners eligible for awards of good time credits for the periods of their post-sentencing confinement in correction department facilities and county jails but not for the periods of their presentence confinement in county jails does not offend the due process guarantees of the New Mexico and United States constitutions. State v. Aqui, 1986-NMSC-048, 104 N.M. 345, 721 P.2d 771, cert. denied, 479 U.S. 917, 107 S. Ct. 321, 93 L. Ed. 2d 294 (1986).

Risk of greater sentence upon trial de novo is not unfair. — The hazard of a greater sentence upon trial de novo for violation of municipal ordinance is not fundamentally unfair. City of Farmington v. Sandoval, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.

A greater sentence imposed by a district court for violation of certain municipal ordinances after a trial de novo does not deprive defendant of due process, nor does it amount to double jeopardy. City of Farmington v. Sandoval, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.

Risk of greater sentence does not have unconstitutional "chilling effect" on right of appeal. — There was no "chilling effect" on defendant's right to appeal his conviction for violation of certain municipal ordinances where he took an appeal to the district court, and requiring defendant to choose between accepting the risk of a greater sentence or foregoing his appeal was not constitutionally impermissible under the facts of the case, since the choice was defendant's. City of Farmington v. Sandoval, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.

Vindictive or retaliatory punishment. — The mere imposition of a longer sentence after a defendant voluntarily rejects a plea bargain does not, without more, constitute vindictive or retaliatory punishment. State v. Dyke, 2020-NMCA-013, cert. denied.

Defendant failed to establish a presumptive or actual vindictiveness claim. — Where defendant was charged with five counts of first degree criminal sexual penetration of a minor (CSPM) under thirteen, six counts of second degree criminal sexual contact of a minor (CSCM) under the age of thirteen, and one count of third degree CSCM, and where defendant was sentenced to thirty-six years in prison after entering a written plea and disposition agreement in which he agreed to plead guilty to three counts of first degree CSPM and one count of second degree CSCM, and where defendant successfully moved to withdraw his guilty plea, was tried and convicted of five counts of CSPM and seven counts of CSCM under the age of thirteen, and sentenced to sixty-nine years imprisonment, defendant failed to show that the sentence imposed by the district court was based on a desire to punish defendant for exercising his constitutional right to a trial. State v. Dyke, 2020-NMCA-013, cert. denied.

Deprivation of due process not considered for first time on appeal. — Where record does not disclose that trial court was given opportunity to hear objections or exceptions on ground that accused was deprived of liberty without due process of law or that judgment ordering that driver's license be taken up for one year exceeded trial court's authority, the matter will not be considered on appeal. State v. Williams, 1946-NMSC-012, 50 N.M. 28, 168 P.2d 850.

Indigent's appeal right conditioned on bonding requirement. — The right of an indigent defendant to an appeal cannot be conditioned upon a statutory bonding requirement. Mitchell v. County of Los Alamos, 1991-NMSC-062, 112 N.M. 215, 813 P.2d 1013.

Denying motion to dismiss counsel immediately before post-conviction hearing held proper. — The denial of defendants' motions to dismiss counsel and grant a continuance so they could retain counsel immediately prior to post-conviction hearing was not an abuse of discretion nor was it a denial of due process. Bobrick v. State, 1972-NMCA-048, 83 N.M. 657, 495 P.2d 1104.

Right of indigent defendant to stay pending appeal. — An indigent defendant is entitled to a stay pending appeal, and a failure to post a supersedeas bond does not extinguish that right. Mitchell v. City of Farmington Police Dep't, 1991-NMSC-035, 111 N.M. 746, 809 P.2d 1274.

Delay in enforcing sentence. — Under the totality of circumstances analysis to determine whether or not a delay in the enforcement of a sentence violates the defendant’s due process rights, the courts consider factors that include the length of time of the delay and the nature of the defendant’s circumstances at the time the state attempts to enforce the sentence, as well as whether the delay arose from a negligent mistake on the part of the court or from deliberate or grossly negligent action, whether the defendant bears any responsibility for the delay, and whether the defendant attempted to remedy the delay without success. State v. Calabaza, 2011-NMCA-053, 149 N.M. 612, 252 P.3d 836.

Where the court delayed enforcing defendant’s sentence for thirteen months due to a mistake as to whether defendant was serving the sentence during and after two appeals; defendant had been sentenced and knew that defendant could lose the appeals and would then have to serve the sentence; the delay was not caused by deliberate action of the court; defendant made no attempt to learn the status of the appeals as time progressed; and when the delay was discovered, the court permitted defendant to serve the sentence in a community custody program, the delay in enforcing defendant’s sentence did not violate defendant’s due process rights. State v. Calabaza, 2011-NMCA-053, 149 N.M. 612, 252 P.3d 836.

Due process analysis for a delay in sentencing. — The question of whether a delay in sentencing violates a defendant’s due process rights under the fourteenth amendment is determined by looking at the reasons for the delay and what prejudice the defendant has suffered as a result of the delay. State v. Lopez, 2018-NMCA-002, cert. denied.

Two hundred-day delay between conviction and sentencing did not violate due process. — Where defendant was convicted of aggravated battery with a deadly weapon, but where there was a 209-day delay in sentencing, defendant’s due process rights under the fourteenth amendment were not violated when defendant failed in his burden of showing that he was prejudiced by the delay. State v. Lopez, 2018-NMCA-002, cert. denied.

Inordinate delay in the appellate proceedings implicates due process. — Due process protects a criminal defendant against inordinate delay in direct appeal proceedings. To determine whether a criminal defendant's due process rights have been violated by appellate delay, an appellate court looks to the due process principles of prejudice and fundamental fairness, with the predominant concern being prejudice. State v. Garcia, 2019-NMCA-056, cert. denied.

Defendant was not prejudiced by delay in appeal process. — Where defendant was convicted of child abuse, kidnapping, contributing to the delinquency of a minor, battery against a household member, two counts of bribery of a witness, and four counts of conspiracy, and where defense counsel failed to file a brief-in-chief in defendant's appeal, which resulted in a dismissal and eventual reinstatement of his appeal and a nine-year and four-month delay, defendant's constitutional right to due process was not violated where defendant made no claim that his ability to assert arguments on appeal has in any way been prejudiced and made no argument pertaining to his ability to defend himself on retrial; defendant did not suffer prejudice from the delay of his appeal. State v. Garcia, 2019-NMCA-056, cert. denied.

Notice and hearing necessary to revoke suspended sentence. — The supreme court has said that a suspended sentence gives a defendant his right of personal liberty and that due process requires a notice and hearing before such suspension can be revoked. Tijerina v. Baker, 1968-NMSC-009, 78 N.M. 770, 438 P.2d 514.

In an action to invoke a suspended sentence, a mere criminal charge was not evidence and affords no legal basis for the reinstatement of a sentence. A party defendant is entitled to be heard on the question whether she had violated the conditions of the suspension and on the question of identity. State v. Peoples, 1961-NMSC-121, 69 N.M. 106, 364 P.2d 359, overruled by State v. Mendoza, 1978-NMSC-048, 91 N.M. 688, 579 P.2d 1255.

Notice and hearing necessary to revoke probation. — The right of personal liberty is one of the highest rights of citizenship, and this right cannot be taken from a defendant in a probation revocation proceeding without notice and an opportunity to be heard without invading his constitutional rights. State v. Brusenhan, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174 (proceedings to revoke probation and impose sentence).

The district court did not violate defendant's due process rights by denying her motion to appear in person at a probation revocation hearing during a public health emergency. — Where the state filed a motion to revoke defendant's probation, alleging defendant's various failures to comply with her probation requirements, and where, following the state's filing of the petition to revoke probation, the COVID-19 pandemic was declared a public health emergency in New Mexico, and where the New Mexico supreme court set forth procedures related to the function of judicial proceedings in light of the public health emergency, specifically providing for criminal cases that any criminal procedure rules requiring the presence of the defendant may be accomplished through remote, audio-visual appearance in the discretion of the judge, and where defendant filed a motion to appear in person at an upcoming adjudicatory hearing on the state's motion, the district court did not err in denying defendant's motion to appear because defendant's motion did not assert an emergency need to appear in person, and under the provisions of the supreme court order, the district court had discretion to deny a defendant's motion for in-person proceedings where such motion fails to present an emergency need. State v. Peru, 2022-NMCA-018, cert. denied.

Notice and hearing not necessary to revoke parole. — A sentenced prisoner released on probation has no constitutional right to a hearing prior to its revocation, and any such right depends entirely upon the existence of a statutory provision. Robinson v. Cox, 1966-NMSC-210, 77 N.M. 55, 419 P.2d 253 (prisoner sentenced and paroled to detainer).

A parole revocation hearing may be summary in nature. Due process does not require a different result. Robinson v. Cox, 1966-NMSC-210, 77 N.M. 55, 419 P.2d 253 (prisoner sentenced and paroled to detainer).

Parole revocation hearing may be deferred. — Deferral of a parole revocation hearing following service of an intervening sentence is without prejudice and does not violate a defendant's due process rights where the parole violation was established by an intervening conviction. Moody v. Quintana, 1976-NMSC-070, 89 N.M. 574, 555 P.2d 695.

A parolee was not entitled to an immediate parole revocation hearing following the issuance and lodging of a detainer warrant with an incarcerating institution and the fact that the paroling jurisdiction and the incarcerating jurisdiction were not the same did not create due process concerns. McDonald v. New Mexico Parole Bd., 955 F.2d 631 (10th Cir. 1991), cert. denied, 504 U.S. 920, 112 S. Ct. 1968, 118 L. Ed. 2d 568 (1992).

Jurisdiction to enforce original sentence is not lost by agreement to parole to detainer. — Where prisoner specifically agreed to parole to detainer in Arizona and to conditions set forth in parole agreement, state does not lose jurisdiction over prisoner to enforce the original sentence upon violation of the parole terms, and exercise of such jurisdiction does not constitute a denial of due process. Snow v. Cox, 1966-NMSC-082, 76 N.M. 238, 414 P.2d 217.

Commitment to girls' home "until further order" violates due process. — Commitment to "girls' welfare home at Albuquerque until the further order of the court in the premises" was not that required by Laws 1919, ch. 86, § 2 (repealed), and violated due process. Robinson v. State, 1930-NMSC-001, 34 N.M. 557, 287 P. 288 (remanded for resentencing).

5. EVIDENCE, IDENTIFICATION, CONFESSIONS.

Right to public trial not violated. — Where defendant was involved in a gang-related shooting in which the victim was killed; the state called four confidential informants who were current or former gang members; prior to trial, the state informed the court that the informants freely gave information with no promise in return and that the informants were not paid; defendant claimed that the state suppressed evidence that the informants received or expected to receive compensation in exchange for their testimony; at trial, the state informed defendant that one of the informants had struck a deal to get released from jail in exchange for the informants’ testimony; the other informants testified that they were motivated to become informants by the hope that they would receive favorable treatment from the state in exchange for their cooperation; and there was no evidence that the informants’ hope was ever realized or that a deal with the state was ever reached, the state did not suppress material evidence and defendant was not deprived of due process. State v. Turrietta, 2011-NMCA-080, 150 N.M. 195, 258 P.3d 474, rev’d, 2013-NMSC-036.

Admitting testimony without proper foundation was harmless error. — Where the defendant was convicted of tampering with evidence because he had swiped a portion of white powder on a laminated card that was found in his wallet with his thumb and ate the powder; the trial court permitted a police officer to testify that a field test established that the white powdery substance was cocaine without a proper foundation; the defendant’s actions were videotaped and the videotape was shown to the jury; and a police officer testified that he saw the defendant swipe the powder with his thumb and put it in his mouth, the admission of testimony about the results of the field test was harmless error. State v. McClennen, 2008-NMCA-130, 144 N.M. 878, 192 P.3d 1255.

Evidence will be excluded for unfair conduct of police. — Where police conduct offends standards of fundamental fairness under the due process clause, the evidence is excluded. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Hospital-bed admission not involuntary when there is no evidence of police misconduct. — Where defendant was charged with vehicular homicide after crashing her car while under the influence of alcohol, her hospital-bed admission to police that she was driving the vehicle at the time of the crash did not violate her due process rights under the fourteenth amendment where testimony indicated that defendant was lucid and not otherwise specifically susceptible to coercion during the ten-minute interview at the hospital, where there was no evidence that police tried to exploit her medical condition, and where defendant failed to show that police officers obtained her admission using intimidation, coercion, deception, assurances, or other police misconduct that constituted overreaching. State v. Bregar, 2017-NMCA-028, cert. denied.

Evidence from search incident to lawful arrest. — The trial court properly denied defendant's motion to suppress evidence seized from his person, where defendant was arrested for public drunkenness (prior to repeal of the offense of drunkenness), and the police officer searched defendant, finding a marijuana cigarette and a glasses case which contained heroin, since the full search of the person of the suspect made incident to a lawful custodial arrest does not violate the constitution, and having authority to search for the glasses case, the right to open it naturally followed. State v. Barela, 1975-NMCA-117, 88 N.M. 446, 541 P.2d 435.

There is no right to warning concerning consequences of refusing blood test. — Miranda-type warnings are necessary only in situations of either testimonial or communicative evidence, and New Mexico has consistently excluded physical evidence from the scope of the protection. It follows that an accused has no constitutional right to a warning concerning the consequences of refusing a blood test. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.

Failure to give warnings is not prejudicial if statement is not made. — Failure of the police to advise the petitioner of his right to counsel or of his right to remain silent prior to their interrogation of him has not been shown to have prejudiced him at the trial, where no statement was in fact made, nor was any testimony offered at the trial concerning any statement asserted to have been made by him, and there is nothing showing that the officers may have obtained evidence of any nature as a result of petitioner's statements. State v. Selgado, 1967-NMSC-147, 78 N.M. 165, 429 P.2d 363.

Admitting statement on form containing warnings is not prejudicial. — Where petitioner had no attorney when the statement was given and claims that he had not been advised that he did not have to make any statement at all, and that if he did make a statement, it could be used against him in a trial, no prejudice is shown where it was typed on the form that he did not have to make any statement and a codefendant who was at the time represented by counsel also gave a statement which was admitted in evidence by the trial court after a foundation as to its voluntary character had been ruled on by the judge. Pece v. Cox, 1964-NMSC-237, 74 N.M. 591, 396 P.2d 422.

Statements induced by promise not kept invalidate proceedings. — When after petitioners gave statements to police upon reliance of a police detective, who after consultation with an assistant district attorney represented to the petitioners that if they would give the signed statements to the police department setting forth the nature and extent of their involvement, knowledge and other activities in connection with the murder of decedent, they would not be charged with the murder if they did not actually kill her, if petitioners were charged with murder, such a proceeding was invalid as it denied defendants due process of law. State ex rel. Plant v. Sceresse, 1972-NMSC-070, 84 N.M. 312, 502 P.2d 1002.

Confession not shown voluntary may not be used for impeachment. — Admission of evidence of prior confession to impeach a defendant represents a denial of due process where voluntariness of such confession has not been shown and defendant denies or claims inability to recall the statement. State v. Turnbow, 1960-NMSC-081, 67 N.M. 241, 354 P.2d 533, 89 A.L.R.2d 461.

Minority alone is not enough to require a conclusion that confessions are involuntary and inadmissible, but rather the age of the defendants is a factor to be considered when appraising the character of the confessions as voluntary or not. State v. Ortega, 1966-NMSC-185, 77 N.M. 7, 419 P.2d 219.

Failure to advise of juvenile rights with other warnings does not taint confessions. — Where juveniles were advised of their rights guaranteed in criminal proceedings without any qualifications concerning age or representations with regard to rights to be treated as juveniles, if any illegality was present because the confessions were taken while the defendants were technically in the custody of the juvenile court, such fact did not taint the confessions to such an extent as to make them involuntary or to make their use "fundamentally unfair". State v. Ortega, 1966-NMSC-185, 77 N.M. 7, 419 P.2d 219.

Failure to notify parents or provide counsel immediately to drunk juveniles does not taint confessions. — That the parents of juvenile defendants were not advised of the juveniles' arrest, nor were the defendants immediately turned over to the juvenile authorities or provided legal counsel, and, furthermore, evidence of defendant's drinking and general physical conditions at the time of arrest did not necessitate a conclusion that defendant's confession was obtained by a denial of due process. State v. Ortega, 1966-NMSC-185, 77 N.M. 7, 419 P.2d 219.

Article II, Sec. 18 provides broader due process protections than the United States constitution in the context of admission of eyewitness identification evidence. — Article II, Section 18 of the New Mexico constitution affords broader due process protection than the United States constitution in the context of admission of eyewitness identification evidence because the federal reliability standard, the Manson rule, is both scientifically and jurisprudentially unsound, and hence flawed under an interstitial review, and therefore does not satisfy due process under the New Mexico constitution. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.

New standard for determining whether eyewitness identification evidence is admissible at trial. — Under New Mexico's new standard for determining whether eyewitness identification evidence is admissible at trial, if a witness makes an identification of a defendant as a result of a police identification procedure that is unnecessarily suggestive and conducive to misidentification, the identification and any subsequent identification by the same witness must be suppressed. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.

Burden of proof for admitting evidence of eyewitness identifications. — Under New Mexico's approach to admitting eyewitness identifications, the initial burden falls on the accused to establish prima facie that some aspect of the identification procedure employed by the police was suggestive in nature. If the accused does not meet that burden, suppression is not required. However, if the accused demonstrates that the identification procedure contained one or more suggestive elements, the burden shifts to the state to prove by clear and convincing evidence either that (1) the procedure employed was not so suggestive as to materially taint the identification made by the eyewitness, which is to say that any departure from proper procedure could not have increased the risk of misidentification, or (2) good reason existed for the police to employ the suggestive procedure in the first instance. If the state fails to carry its responsive burden, the identification evidence and any subsequent in-court identification must be suppressed. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.

New Mexico courts abandon the independent source doctrine in the context of disputed eyewitness identifications. — Pursuant to the independent source doctrine, an in-court identification which is independent of and not tainted by an out-of-court identification is admissible at trial. The independent source doctrine in the context of due process and disputed eyewitness identification evidence lacks legal justification and is contrary to existing science. New Mexico therefore abandons the doctrine in the context of disputed eyewitness identifications. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.

Suppression not required where defendant failed to establish prima facie that some aspect of the identification procedure used was suggestive in nature. — Where defendant was charged with two counts of murder in the first degree, and where, during the investigation, detectives showed an eyewitness five or six photos of different individuals, including a picture of defendant, and where the eyewitness identified defendant in one of the photographs as the person he saw at the scene of the shooting, and where, two days later, detectives assembled a photo array and requested that the eyewitness view the array which was composed of six photographs, some of which were the same photos shown to the eyewitness two days before as well as some photos that were new to him, and where the eyewitness again identified defendant in a photo as the person he saw at the scene of the shooting, the district court did not err in admitting evidence of the eyewitness's identification, because defendant failed to establish prima facie that some aspect of the identification procedure used by the detectives was suggestive in nature. State v. Martinez, 2021-NMSC-002, overruling Patterson v. LeMaster, 2001-NMSC-013, 130 N.M. 179, 21 P.3d 1032, State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, and State v. Baca, 1983-NMSC-049, 99 N.M. 754, 664 P.2d 360.

Due process not violated where there was no improper police conduct surrounding an identification. — In defendant’s trial for first-degree murder, the in-court, eyewitness identifications were not the result of impermissible, suggestive, pretrial, law enforcement-orchestrated procedures, and therefore defendant’s due process rights were not violated, because due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. State v. Ramirez, 2018-NMSC-003.

Due process concerns are not implicated by in-court identifications if identity is not at issue. — Where child was adjudicated delinquent as having committed first-degree felony murder, attempted armed robbery, conspiracy to commit armed robbery, abuse of a child, and aggravated assault with a deadly weapon, and where child challenged three collateral witnesses' in-court identifications as impermissibly suggestive and thereby violating his due process right to a fair trial, the admission of the identification testimony did not implicate defendant's due process rights because defense counsel's theory of the case did not contest child's identity within the scope of the collateral witnesses' testimony. Where identity is not at issue as to the charges, an in-court identification does not implicate due process concerns to constitute plain error. State v. Antonio M., 2023-NMSC-022, rev'g 2022-NMCA-041, 516 P.3d 193.

In-court identification under unnecessarily suggestive circumstances violated right to due process. — Where the state filed a delinquency petition against child, alleging that he committed first-degree felony murder for his involvement in the robbery and killing of victim, and where, at the time of child's adjudicatory hearing, a supreme court order was in place due to the COVID-19 pandemic that required everyone present to wear a mask and limited the number of individuals in the courtroom, and where the state asked three witnesses at the hearing to identify child, and where the district court permitted child to briefly remove his mask each time, and subsequently, the three witnesses positively identified child, and where the child argued that these in-court identifications were unnecessarily suggestive and violated his due process rights under both the United States and New Mexico constitutions, the district court committed plain error in admitting the three identifications, because the state used child's name while asking each witness to identify him, the state asked two of the witnesses to "please look at this young man," instead of asking the witnesses if they saw child in the courtroom, and the state singled child out by asking him to remove his mask, which is comparable to asking child to identify himself by raising his hand or turning around. Under the circumstances of this case, the state's acts triggered a due process concern when eyewitness evidence was procured in-court under unnecessarily suggestive circumstances. Identity was a central issue in the case, and the state's actions tending to suggest the identification of child for these witnesses in court constituted an injustice that creates doubts about the validity of the verdict and violated child's right to due process. State v. Antonio M., 2022-NMCA-041, 516 P.3d 193, rev'd by 2023-NMSC-022.

Admitting evidence of suggestive identification denies due process. — The manner of an extra-judicial identification affects the admissibility of identification evidence at trial. If the extra-judicial identification, such as a lineup, was unnecessarily suggestive and conducive to irreparable mistaken identification, a defendant would be denied due process if evidence concerning such an extra-judicial identification was admitted at his trial. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

All circumstances must be considered. — A claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. The fairness of the lineup requires consideration of the totality of the circumstances. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Evidentiary hearing on fairness. — Where there is an issue as to an "illegal taint," the issue is to be resolved by a consideration of the totality of the circumstances surrounding the out-of-court identification. This requires an evidentiary hearing. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720.

Where defendant had informed the trial court that he would call additional witnesses concerning the fairness of a lineup procedure, but the trial court ruled without permitting the additional witnesses to testify, the trial court did not decide whether under all the circumstances the lineup procedure was so unfair that evidence as to the lineup identification should have been excluded. Accordingly, court of appeals vacated the conviction and sentence pending the trial court's determination. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

No hearing required where it is clear no claim of unfairness could be made. — Where during preparations for a lineup, there was a confrontation between defendant and the victim, and the victim identified defendant as the perpetrator of the crime immediately after this confrontation, but where both parties agreed that the confrontation was inadvertent, defendant's claim that he was entitled to an evidentiary hearing to determine whether the victim's in-court identification of defendant was tainted by the identification made after the inadvertent confrontation was without merit, since, on the basis of defendant's own representations to the court, no claim could be made of the presence or the influence of any improper suggestion exerted by the police. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720.

In-court identification procedures did not violate defendant's due process rights. — Where defendant was convicted of possession of a stolen motor vehicle, and where, during trial, the trial court asked defendant to remove his mask for a few seconds so the arresting officer could testify as to whether defendant was the man who had been driving the stolen truck, defendant's due process rights were not violated because the defense theory of the case did not put defendant's identity at issue and did not challenge the in-court identification by the arresting officer, and therefore, any alleged suggestiveness in the relevant in-court identification procedures did not violate defendant's due process rights. State v. Carbajal, 2026-NMCA-030, cert. denied.

The one-to-one confrontation is not an unwarranted practice, because, under some circumstances, it may tend to insure accuracy in the identification, and there is no basis for a per se exclusionary rule because such confrontations are not per se violative of due process; absent special elements of unfairness, prompt on-the-scene confrontations do not violate due process. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Identification from driver's license photo may be shown. — Where victim's testimony was to the effect that intruder was in her presence for approximately an hour and 40 minutes and at the police station she described the intruder by height, style of haircut and "big lips", the fact that a policeman showed the victim a driver's license photograph when victim knew the driver's license came from the wallet she had taken from the rapist's pocket did not make it error to admit evidence of the out-of-court identification of defendant from the photographs, and the victim's in-court identification of the defendant was not inadmissible because of taint by an illegal pretrial identification. State v. Baldonado, 1971-NMCA-068, 82 N.M. 581, 484 P.2d 1291.

Improper extra-judicial identification does not require exclusion of untainted in-court identification. — Even where there has been an improper extra-judicial identification, this fact does not require the exclusion of an in-court identification which is independent of and not tainted by the extra-judicial identification. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Showing counsel was present does not require mistrial. — Where the state elicited the fact that defendant engaged in constitutionally protected conduct (having a lawyer present at a lineup) only to show the fairness of the lineup procedure, defendant was not harmed by testimony that defendant had a right to counsel, and the trial court properly denied his motion for a mistrial. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.

Lack of evidence on crucial element violates due process. — A conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged violates due process. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

Where the record disclosed absolutely no evidence of knowledge by juvenile respondents, adjudged delinquent because of alleged possession of marijuana, of the character of the item they allegedly possessed, it was held that their fundamental rights were violated, in that serious questions as to their innocence were raised; consequently, the causes against the respondents were dismissed and all records thereof were ordered destroyed. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

It is a fundamental right of a party to be convicted of a crime, which is a necessary prerequisite to a determination of delinquency, based upon evidence of the elements of the crime, and in a prosecution for a violation of 30-31-23 NMSA 1978, the state must prove that the respondents had knowledge of the presence and character of the item possessed; a degree of furtiveness on the parts of juvenile respondents, in doing their smoking and passing a pipe around between buildings while changing classes, in light of a school regulation prohibiting the smoking of tobacco, was not conduct sufficient to imply that the smokers knew the character of the substance they were using. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Generally, evidence of other crimes is prejudicial. — A person put on trial for an offense is to be convicted, if at all, on evidence showing he is guilty of that offense. The defendant is not to be convicted because, generally, he is a bad man, or has committed other crimes. Evidence of other offenses tends to prejudice the jury against the accused and predispose the jury to a belief in defendant's guilt. Thus, the established New Mexico procedure, with certain exceptions, is that proof of separate criminal offenses is not admissible, and it is prejudicial error to admit such proof. State v. Garcia, 1971-NMCA-121, 83 N.M. 51, 487 P.2d 1356.

Admission of codefendant’s plea agreement as substantive evidence violated defendant’s rights to due process and fair trial. — Where defendant was charged with receiving or transferring a stolen vehicle, conspiracy to receive or transfer a stolen vehicle, possession of burglary tools, and two counts of harboring a felon, and where the district court admitted, without any limiting instruction, a co-defendant’s plea and disposition agreement in order to prove elements of the crime against defendant, including knowledge that the co-defendant had committed felonies and that defendant had reason to believe that the automobile in question was stolen, defendant was denied her constitutional rights to due process and fair trial, because a codefendant’s guilty plea may not be used as substantive evidence to prove a defendant’s guilt. State v. Flores, 2018-NMCA-075.

Video of confession referred to drug use. — Where defendant was charged with sexual exploitation of children; the DVD recording of defendant’s confession was played at trial for the jury; in the video, defendant was heard making references to defendant’s past drug use on three occasions; the context of the drug references was that defendant had been clean since rehabilitation; defendant’s statements had not been elicited by the state; the parties agreed to redact references to other misconduct because defendant faced additional charges based on pornographic images in a separate case; defendant did not specifically move to redact the drug references; defendant did not review the redacted version of the DVD; the trial court gave a cautionary instruction after the first reference to drug use; and defendant did not immediately object to the two subsequent references, the court did not abuse its discretion in denying defendant’s motion for a mistrial. State v. Leeson, 2011-NMCA-068, 149 N.M. 823, 255 P.3d 401, cert. denied, 2011-NMCERT-005, 150 N.M. 667, 265 P.3d 718.

Accused may be impeached by criminal record if he testifies. — An accused may hesitate to take the witness stand if his past criminal record is such that his credibility will probably be completely destroyed in the eyes of the jury if this record is made known to the jury. However, this in no way impairs his right against self-incrimination, his right not to be deprived of his life, liberty or property without due process of law, nor his right to a public trial by an impartial jury. State v. Duran, 1972-NMCA-059, 83 N.M. 700, 496 P.2d 1096, cert. denied, 83 N.M. 699, 496 P.2d 1095.

Evidence of another crime is admissible to establish his identity. — Prior to enactment of the Rules of Evidence, evidence of other crimes was admissible if it served to establish the identity of the person charged. Therefore, evidence of defendant's fingerprint at scene of another crime was admissible for impeachment purposes on the issue of identity, since it tended to establish that identity by characteristic conduct. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720.

Experts in lie detection may be asked about collateral offenses. — Prior to enactment of the Rules of Evidence, it was not error to allow prosecution to ask experts who administered certain deception tests (polygraph, hypnosis, sodium amytol) whether they had been informed of certain collateral offenses committed by defendant and how they had evaluated such information in reaching their conclusions concerning defendant's guilt or innocence. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720.

Admitting polygraph tests is proper. — The rule that polygraph test results are inadmissible except when inter alia the tests are stipulated to by both parties to the case and no objection is offered at trial is: (1) mechanistic in nature; (2) inconsistent with the concept of due process; (3) repugnant to the announced purpose and construction of the New Mexico Rules of Evidence; and (4) particularly incompatible with the purposes and scope of Rules 401, 402, 702 and 703, N.M.R. Evid. (now Rules 11-401, 11-402, 11-702 and 11-703 NMRA). State v. Dorsey, 1975-NMSC-040, 88 N.M. 184, 539 P.2d 204, aff'g 1975-NMCA-022, 87 N.M. 323, 532 P.2d 912.

Where the unchallenged findings of the trial court in a murder trial recognized that defendant's profferred polygraph results were attended by circumstances of considerable reliability and the testimony was crucial to the defense on the question of intent and provocation, due process required the admission of the polygraph evidence. State v. Dorsey, 1975-NMCA-022, 87 N.M. 323, 532 P.2d 912, aff'd, 1975-NMSC-040, 88 N.M. 184, 539 P.2d 204.

Loss of rock allegedly used by murder victim against defendant. — In murder case, where defendant allegedly shot decedent in a fight, and where it was not disputed that decedent struck defendant with a rock, the only dispute being whether defendant pulled the gun before or after being hit with the rock, the loss of the rock did not deprive defendant of due process. State v. McFerran, 1969-NMCA-084, 80 N.M. 622, 459 P.2d 148, cert. denied, 80 N.M. 731, 460 P.2d 261.

When the deprivation of evidence denies due process. — The deprivation of evidence constitutes reversible error where the prosecution either breached some duty or intentionally deprived the defendant of evidence, the evidence of which the defendant was deprived was material, and the defendant was prejudiced by the deprivation of the evidence. State v. Mendoza, 2016-NMCA-002.

Where defendant was convicted of child solicitation by electronic device, defendant claimed that he was denied his due process right to a fair trial because the state failed to preserve or destroyed electronic versions of the e-mail correspondence between him and the persona of a fifteen-year-old child when agents used an e-mail account that automatically deleted emails after a period of inactivity. Defendant was not denied his due process right to a fair trial because all of the emails between defendant and the "fifteen-year-old child" had been printed and the printed versions were disclosed to defendant prior to trial; the state did not intentionally delete the electronic version of the correspondence, the state satisfied its duty of preserving the evidence by printing the emails, making the electronic versions of the emails not material, and the destruction of the electronic version of the correspondence was not prejudicial to defendant. State v. Mendoza, 2016-NMCA-002.

Use of testimony from first trial held unfair under circumstances. — Where defendant was tried for murder for second time, use of the deceased witness's first trial testimony at the new trial violated this constitutional provision, because of the uncontradicted showing that at the first trial counsel proceeded under an arrangement which considered only the question of defendant's sanity, and gave no consideration to defendant's guilt or innocence, that the deceased witness had been questioned largely as a role-playing exercise by defense attorney, and that the trial judge later rejected the agreement between counsel about the insanity defense and found defendant guilty; use of deceased witness's testimony concerning guilt was fundamentally unfair under these circumstances because under the arrangement between counsel there was to be no meaningful inquiry concerning guilt. State v. Slayton, 1977-NMCA-051, 90 N.M. 447, 564 P.2d 1329.

Blood sample from unconscious defendant is admissible. — The admission in a prosecution for involuntary manslaughter of evidence based on the results of a blood test made of a blood sample taken from the defendant while he was unconscious, the use of which was protested both at the preliminary hearing and at the trial in district court, was not a denial of due process. Breithaupt v. Abram, 58 N.M. 385, 1954-NMSC-065, 271 P.2d 827, aff'd, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957).

Proof of accuracy of testing machine by lay witnesses. — Defendant was afforded due process where the accuracy of the testing machine was supported by lay testimony, subject to full rights of cross-examination by defendant, and his right to cross-examine and confront the witnesses against him was not abridged. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.

When admitting improper evidence without objection is fundamental error. — Defendant's assertion that the admission of irrelevant and prejudicial evidence that defendant wrecked the automobile he was accused of taking and that he refused medical treatment so deprived him of due process of law that his conviction should be reversed despite the fact that no objection was made was without merit, since the doctrine of fundamental error is to be resorted to in criminal cases only if the innocence of the defendant appears indisputable, the question of his guilt being so doubtful that it would shock the conscience to permit his conviction to stand, and the record did not disclose the presence of these elements. State v. Gomez, 1971-NMCA-009, 82 N.M. 333, 481 P.2d 412.

Insufficient evidence of endangerment by medical neglect. — Where defendant, whose six-month-old baby died from a loss of blood associated with blunt abdominal trauma and a lacerated liver, was found not guilty of inflicting the injuries, but was convicted of negligently permitting endangerment by medical neglect, the state was required to put forth substantial evidence that defendant’s neglect, failing to obtain medical care earlier, resulted in the child’s death, but the state failed to present any evidence that defendant’s neglect contributed to the child’s death. Without some evidence to establish a causal connection between defendant’s neglect and the death of the child, there was insufficient evidence to support defendant’s conviction for endangerment by medical neglect. State v. Nichols, 2016-NMSC-001, rev’g 2014-NMCA-040, 321 P.3d 937.

Exclusion of evidence involving a collateral matter. — Where defendant, whose six-month-old baby died from a lacerated liver that was caused by blunt force trauma, was charged with child abuse due to medical negligence resulting in death; as part of defendant’s defense that a third party was guilty, defendant wanted to introduce evidence that, in the days immediately following the death of the baby, defendant’s spouse asked defendant’s friend to pose as defendant and withdraw money from defendant’s retirement account because the spouse planned to go to Mexico, which indicated the spouse’s consciousness of guilt; and the district court refused to allow the friend to testify, the district court’s ruling did not infringe on defendant’s constitutional right to present a defense to the crime on which defendant was convicted because the excluded evidence did not support a defense that defendant did not negligently endanger the baby by failing to obtain medical treatment for the baby. State v. Nichols, 2014-NMCA-040, cert. granted, 2014-NMCERT-003.

6. PROSECUTOR CONDUCT.

Where the defendant claimed self-defense based on the violent character of the victim; the state failed to disclose the entire contents of a national crime information center report on the victim’s criminal history to the defendant prior to trial; on the second day of trial, the state stipulated to the introduction into evidence of the entire NCIC report; and the defendant used the contents of the NCIC report during closing argument, the defendant’s due process rights were not violated by the failure of the state to disclose the entire NCIC report prior to trial. State v. Balenquah, 2009-NMCA-055, 146 N.M. 267, 208 P.3d 912, cert. denied, 2009-NMCERT-004, 146 N.M. 642, 213 P.3d 792.

Withholding evidence from grand jury. — It is not a violation of due process for the prosecutor to withhold circumstantial exculpatory evidence from the grand jury; he is obligated to present only direct exculpatory evidence. Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.

Material false evidence in grand jury proceeding violates due process. — The knowing use of false evidence or the failure to correct false evidence at grand jury proceeding is a violation of due process where the evidence was material to the guilt or innocence of the accused. Where the only grand jury witness upon whose testimony the indictment was based gave false testimony, indictment based on such evidence violated defendant's right to due process. State v. Reese, 1977-NMCA-112, 91 N.M. 76, 570 P.2d 614.

Due process is violated when the prosecution suppresses material evidence favorable to the defense. — A defendant seeking dismissal for a Brady violation must prove that evidence was suppressed by the prosecution, the suppressed evidence was favorable to the defendant, and the suppressed evidence was material to the defense. In order to be material under Brady, there must be a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. State v. Huerta-Castro, 2017-NMCA-026.

Due process not violated where suppression of favorable evidence does not call into question the fairness of the entire trial. — Where defendant was charged with criminal sexual penetration of a minor, and where defendant claimed that his due process rights were violated when the prosecutor failed to either acknowledge the existence of or provide copies of a report written by the pediatrician who examined the child victims until just before trial started and failed to disclose that the victims’ mother had applied for a visa that, because of her participation in the case and cooperation with law enforcement, would allow her to remain in the country legally during the pendency of the trial, defendant’s due process rights were not violated because the pediatrician’s report was not favorable to the defense, and with regard to the visa application, although the suppression of the evidence may have deprived defendant of an opportunity to impeach one of the state’s main witnesses by providing evidence that mother had a strong motive for fabricating charges against defendant, defendant failed to demonstrate that the suppression of the visa evidence impeded defendant’s effective use of it in such a way that the fairness of the trial was called into question. State v. Huerta-Castro, 2017-NMCA-026.

No Brady violation where suppressed statement was merely cumulative of other evidence and was not materially exculpatory. — Where defendant was convicted of first-degree felony murder and criminal sexual penetration, and where defendant petitioned for a writ of habeas corpus alleging that the prosecution failed to turn over an audio recording or transcript of a witness's statement to law enforcement and that the failure violated his constitutional right to due process, the district court erred in granting defendant's petition for writ of habeas corpus, because although the witness's statement, in which he admitted lying about his relationship to the victim, may have been favorable to the defense because it could have affected the jury's assessment of the witness's credibility, the statement was only cumulative evidence that the witness did not always tell the truth, and the statement was not materially exculpatory as defendant claimed, because evidence that another person had a motive to commit the crime for which a defendant is on trial is generally inadmissible, absent direct or circumstantial evidence linking the third person to the crime. When viewed in context, there is not a reasonable probability that the suppressed statement, if it had been produced and effectively used by defense counsel, would have delivered a different verdict. State v. Worley, 2020-NMSC-021.

No Brady violation where defense fails to show that state suppressed evidence. — Where defendant was convicted of two counts of attempted first degree murder and two counts of shooting at or from a motor vehicle, and where defendant argued that the state committed a Brady violation by failing to send gunshot residue swabs collected from defendant’s person and vehicle after the shooting to the forensic lab for testing, claiming that had the swabs been tested, the results would have shown that he was not the shooter, and the state’s failure to share these results resulted in the suppression of material evidence, there was no fundamental error, because the fact that defendant listed the gunshot residue swabs in his disclosure of evidence filed before trial demonstrated that he was aware of the swabs’ existence and that the state did not commit a Brady violation by failing to disclose evidence. State v. Bryant, 2023-NMCA-016, cert. denied.

Defendant could be denied due process by a prosecutor withholding exculpatory evidence from the jury, since the grand jury has a duty to protect a citizen against unfounded accusation, and only specified persons are authorized by statute to present matters to the grand jury. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.

Circumstances show deprivation of fundamental fairness by withholding exculpatory evidence. — Failure to inform the grand jury that in two of the robberies of which defendant was accused, fingerprints were found which did not match defendant's fingerprints, where in connection with these robberies there was positive identification that defendant was the robber and testimony by a detective that a victim had identified defendant in a lineup where she had not done so and stated that she was not sure by the faces but was by the voices, did not amount to a deprivation of fundamental fairness on the basis of evidence withheld from the grand jury, and there was no denial of due process. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.

Trickery and subornation of perjury by state denies due process. — In a criminal trial denial of due process is the failure to observe the fundamental fairness essential to the very concept of justice, and in order to declare a denial of it there must be found that the absence of that fairness fatally infected the trial. If, by fraud, collusion, trickery and subornation of perjury on the part of those representing the state, the trial of an accused person results in his conviction, he has been denied due process of law. State v. Morris, 1961-NMSC-131, 69 N.M. 244, 365 P.2d 668.

Personal projection of prosecutor into case denies due process. — Where the prosecuting attorney repeatedly projected himself personally into the trial events and upon one occasion the trial court engaged in a colloquy with the defendant upon a personal basis, although appellant failed to make timely objection to the conduct of the prosecutor or to the remarks of the court, prejudice resulted and denied appellant his right to a fair and impartial trial. Edgington v. United States, 324 F.2d 491 (10th Cir. 1963).

Commenting on the demeanor of a non-testifying defendant. — Where defendant was charged with criminal sexual penetration, kidnapping, armed robbery, aggravated burglary, and criminal sexual contact, and where, during the state’s closing argument at defendant’s trial, the prosecutor commented on defendant’s demeanor during the victim’s testimony, it was improper for the prosecutor to comment on the demeanor of a non-testifying defendant, because it is neither probative of innocence or guilt, nor is it evidence that an appellate court can properly review. The error, however, did not warrant reversal because the prosecutor's brief comments were confined to closing argument, the court advised the jury that its consideration of defendant's courtroom demeanor should be limited to its own observations, and, in the context of the entire trial, the state presented significant evidence of defendant's guilt. State v. Sena, 2018-NMCA-037, rev'd in part by 2020-NMSC-011.

Deliberate use of material false evidence. — The deliberate use of false evidence knowingly by a prosecuting officer in a criminal case constitutes a denial of due process of law if such evidence is material to the guilt or innocence of the accused, and the same result obtains when the state, although not soliciting false evidence, allows it to go uncorrected when it appears. It was held that the state's failure to correct false evidence which it had elicited concerning alleged bribes, which the state acknowledged was material as it went to the defense of entrapment, required that defendant be granted a new trial. State v. Hogervorst, 1975-NMCA-028, 87 N.M. 458, 535 P.2d 1084, cert. denied, 87 N.M. 457, 535 P.2d 1083, cert. denied, 423 U.S. 1048, 96 S. Ct. 773, 46 L. Ed. 2d 636 (1976).

Suppression of requested favorable evidence. — Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. State v. Turner, 1970-NMCA-054, 81 N.M. 571, 469 P.2d 720.

If evidence is material and defendant is prejudiced. — The deliberate suppression of evidence or the use of false evidence knowingly by a prosecuting officer in a criminal case constitutes a denial of due process of law if such evidence is material to the guilt or innocence of the accused, or to the penalty to be imposed, but the failure to show materiality of the suppressed evidence, that the prosecution's chief witness had married prior to trial but after preliminary hearing and had sworn and testified under maiden name, or prejudice resulting therefrom, renders the rule inapplicable. State v. Morris, 1961-NMSC-131, 69 N.M. 244, 365 P.2d 668.

Brady obligation for material information in a U-Visa or T-Visa application. — In consolidated cases, where both defendants learned of, and sought disclosure of, their alleged victims' U-Visa and T-Visa applications, which allow crime victims to obtain lawful residency in the United States, and where, in both cases, the victims sought to protect those documents from disclosure, and where the district courts in each case ultimately ordered production of the respective documents for in-camera review and disclosure to the defendants, the district courts erred in ordering disclosure, because if the prosecution is in possession of the U/T-Visa application itself, Brady is implicated to the extent information within the application is material either to guilt or to punishment, but if information within the U/T-Visa application is material, then the information, not the application, should be disclosed to the defendant. Ramirez v. Marsh, 2025-NMSC-050.

Negligent investigation does not amount to suppression. — That the sheriff and the other investigating officers negligently failed to properly investigate and to preserve evidence at the scene of the homicide, or to make certain tests and measurements, does not amount to suppression of evidence bearing on self-defense or justification and deny due process of law. State v. Rose, 1968-NMSC-091, 79 N.M. 277, 442 P.2d 589, cert. denied, 393 U.S. 1028, 89 S. Ct. 626, 21 L. Ed. 2d 571 (1969).

State's failure to gather evidence. — Defendant's due process rights were not violated by the police only photographing the rock allegedly used to batter the defendant's girlfriend, rather than actual collecting it as physical evidence. State v. Ware, 1994-NMSC-091, 118 N.M. 319, 881 P.2d 679, rev'g 1993-NMCA-080, 118 N.M. 326, 881 P.2d 686.

Test for cases in which the state fails to collect evidence. — The test for cases in which the evidence at issue is never collected by the state first requires that the evidence that the state failed to gather from the crime scene must be material to the defendant’s defense. If the evidence is material, the district court must determine whether the failure to collect the evidence was done in bad faith, or in an attempt to prejudice the defendant’s case. Such a finding may result in suppression of the evidence. State v. Salas, 2017-NMCA-057, cert. denied.

State’s failure to gather evidence was not done in bad faith or in an attempt to prejudice the defendant. — Where defendant was charged with battery on a peace officer following an altercation between defendant and a corrections officer, during which defendant head-butted the officer in the mouth, causing a chipped tooth and a lacerated lip, the district court did not abuse its discretion in denying defendant’s motion to dismiss due to the state’s failure to collect any potential video recording of the incident, because defendant presented no evidence that the surveillance system captured video of either the alleged battery or the immediately preceding interaction, and even if the surveillance system did capture material evidence, defendant did not direct the court to any indication that the failure to collect such evidence was the result of bad faith or an attempt to cause prejudice to defendant. State v. Salas, 2017-NMCA-057, cert. denied.

Failure to introduce evidence referred to in opening statement. — Where prosecutor in his opening statement indicated the jury would hear testimony as to the blood type of defendant and of the victim of the assault, but where no attempt was made to prove either of the blood types, this did not amount to misconduct on the part of the prosecutor requiring a reversal unless the prosecutor acted in bad faith. State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct. App.), cert. denied, 81 N.M. 506, 469 P.2d 151 (1970).

Questioning witnesses, knowing they will invoke privilege not to answer. — Where the prosecutor knew that nondefendant witnesses would invoke their constitutional privilege when questioned as to their misconduct, and where the trial court in its discretion decided that the legitimate effect of such questioning - the attack on credibility - was not outweighed by prejudice to the defendant, the prosecutor's questioning was not improper and defendant was not denied due process. State v. McFerran, 1969-NMCA-084, 80 N.M. 622, 459 P.2d 148, cert. denied, 80 N.M. 731, 460 P.2d 261.

Invoking fifth amendment privilege in presence of jury. — Where prosecution did not know that prosecution witness, who invoked the fifth amendment privilege not to testify in the presence of the jury, would invoke the fifth amendment privilege, there was no conscious prosecutorial misconduct and defendant was not prejudiced by the trial court's refusal to declare a mistrial. State v. Henderson, 2006-NMCA-059, 139 N.M. 595, 136 P.3d 1005, cert. denied, 2006-NMCERT-005, 139 N.M. 567, 136 P.3d 568, cert. denied, 549 U.S. 999, 127 S. Ct. 503, 166 L. Ed. 2d 376 (2006).

Improper questioning by prosecutor. — Asking the defendant whether another witness is mistaken or lying is strictly prohibited. State v. Duran, 2006-NMSC-035, 140 N.M. 94, 140 P.3d 515.

The state's comment on defendant's exercise of his right to counsel and right to remain silent as proof of defendant's state of mind resulted in fundamental error. — Where defendant was charged with perjury based on his testimony in a separate criminal case for intentional child abuse resulting in the death of his two-year-old son, and where at trial, the prosecutor elicited testimony and advanced argument about the fact that, while in custody on the child abuse case, defendant invoked his right to counsel instead of answering officers' accusatory questions as proof that defendant's mental state did not prevent him from knowingly making a false statement, defendant's constitutional rights were violated because due process protects defendant's post-Miranda silence regardless of whether the state utilized this silence as substantive evidence of guilt or to impeach an exculpatory explanation given by defendant at trial. State v. Soto, 2026-NMCA-058, cert. denied.

Where a defendant does not initiate any comment on the truthfulness of the testimony of other witnesses, the action of a prosecutor who asks the defendant whether another witness is mistaken or lying is prosecutorial misconduct. State v. Duran, 2006-NMSC-035, 140 N.M. 94, 140 P.3d 515.

Where the defendant accused witnesses of making false accusations about him, defendant provoked the prosecutor's improper questions to defendant about the truthfulness of the testimony of the witnesses, and where the prosecutor's questions were a minimal part of the total trial, the prosecutor's questions were not fundamental error. State v. Duran, 2006-NMSC-035, 140 N.M. 94, 140 P.3d 515.

Prosecutor’s questions about defendant’s refusal to answer drug recognition expert’s questions violated defendant’s Fifth Amendment privilege against self-incrimination and due process. — Where defendant was arrested for DWI after a traffic stop, in which the officer smelled a strong odor of marijuana coming from the vehicle, and where the officer called a drug recognition expert (DRE) to examine defendant after defendant passed a breathalyzer test, but performed poorly on field sobriety tests, and where, at trial, the DRE testified, without objection, that defendant refused to answer his questions, defendant’s Fifth Amendment rights were violated where it was undisputed that at the time defendant was questioned by the DRE, she was under arrest and in police custody, that the DRE gave defendant standard Miranda warnings immediately after introducing himself, that these warnings included advising defendant that she had the right to remain silent and that her silence would not be used against her, and that defendant invoked her right to remain silent; allowing the prosecution to introduce evidence that a defendant exercised their Fifth Amendment right and remained silent in the face of police questioning, after having been assured by a Miranda warning that there would be no penalty for doing so, would be a violation of due process. City of Las Cruces v. Carabajal, 2023-NMCA-036.

Admonishment of prosecutor and proper instructions held to give due process. — Where there were three instances of improper remarks by the prosecutor, but where in each instance the prosecutor was admonished, the instructions told the jury that remarks of counsel were not to be considered as evidence, the jury was instructed not to consider what would have been the answers to questions which the court ruled could not be answered, it was instructed not to consider the court's reasons for its rulings, and it was instructed that it must follow the law as stated by the court, the prosecutor's misconduct did not deprive defendant of due process. State v. McFerran, 1969-NMCA-084, 80 N.M. 622, 459 P.2d 148, cert. denied, 80 N.M. 731, 460 P.2d 261.

Filing of amended information not vindictive prosecution. — The filing of an amended information following the defendant's successful motion for a mistrial did not amount to vindictive prosecution, even though the amended information added two counts not contained in the original information, since it appeared that the prosecutor added these counts because they were inadvertently omitted from the original written magistrate's bind over order and from the original information. State v. Coates, 1985-NMSC-091, 103 N.M. 353, 707 P.2d 1163.

Proper for prosecutor to argue that death penalty protects people. — Prosecution's arguments during rebuttal that imposition of the death penalty would protect people both inside and outside of the prison was proper argument the effect of which was to merely point out to the jury the future dangerousness of this particular defendant. State v. Compton, 1986-NMSC-010, 104 N.M. 683, 726 P.2d 837, cert. denied, 479 U.S. 890, 107 S. Ct. 291, 93 L. Ed 2d265 (1986).

Prosecutorial discretion in determining cases warranting the death penalty. — The necessary and unavoidable discretion of prosecutors in determining which cases warrant the death penalty does not violate the New Mexico constitution. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793.

Where death penalty decision clearly jury's responsibility, adverse prosecutorial comments alleviated. — Any adverse impact of comments by the prosecution during punishment phase of trial was alleviated because throughout both the closing and rebuttal arguments the prosecution made it perfectly clear that the decision concerning the death penalty was for the jury and further, defense counsel also made it unmistakably clear that the jury had sole responsibility for deciding defendant's fate. State v. Compton, 1986-NMSC-010, 104 N.M. 683, 726 P.2d 837, cert. denied, 479 U.S. 890, 107 S. Ct. 291, 93 L. Ed. 2d 265 (1986).

7. RIGHT TO COUNSEL.

The right to counsel at a lineup is essential to due process. State v. Garcia, 1969-NMSC-017, 80 N.M. 21, 450 P.2d 621 (rule not retroactive and so inapplicable).

For former rule, see State v. Tipton, 1967-NMSC-270, 78 N.M. 600, 435 P.2d 430.

Defendant’s plea of no contest was void where defendant was denied his right to counsel at the guilt-determination stage. — Where defendant was charged with criminal damage to property of a household member, and where, at arraignment in magistrate court, defendant asked to be represented by a public defender, and where the magistrate court judge entered an order conditionally appointing the Law Offices of the Public Defender (LOPD), finding that "the defendant was unable to obtain counsel and desires representation by the LOPD", and where, in that same proceeding while defendant stood accused of a crime and had requested but had not yet received legal representation, the magistrate court judge accepted defendant’s plea of no contest and adjudicated defendant’s guilt, and where on de novo appeal to the district court, the district court judge dismissed the appeal for lack of prosecution, finding that defendant had not taken action on the case in more than 180 days, the district court erred in dismissing defendant’s de novo appeal, because after the Sixth Amendment right to counsel has attached, courts may not adjudicate a person’s guilt in the absence of counsel or valid waiver of counsel, and in this case, defendant’s right to counsel had attached at the arraignment in magistrate court, and the magistrate court judge’s deprivation of defendant’s right to counsel at the guilt-determination stage was reversible error. Defendant’s plea is void because the magistrate court deprived defendant of the right to counsel and due process by accepting his plea of no contest without providing him with counsel. State v. Cruz, 2021-NMSC-015, rev’g A-1-CA-37581, mem. op. (May 24, 2019) (non-precedential).

Where defendant was not harmed by evidence. — Defendant's argument that if the exercise of defendant's right to counsel lacked significant probative value, any reference to the exercise of the right had an intolerable prejudicial impact requiring reversal, was without merit since the relevant question is whether the particular defendant has been harmed by the state's use of the fact that he engaged in constitutionally protected conduct, not whether, for the particular defendant or for persons generally, the state's reference to such activity has burdened or will burden the exercise of the constitutional right. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.

Delay in appointing counsel. — Where the record does not show any prejudice from delays in the appointment of counsel or in holding the preliminary examination, and no prejudice is claimed, there was no denial of due process. State v. Paul, 1972-NMCA-024, 83 N.M. 527, 494 P.2d 189.

The taking of handwriting exemplars is not a "critical" stage of the criminal proceedings entitling the accused to the assistance of counsel. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768.

Infringement of right to counsel depends on circumstances of case. — The obligation of the state court trial judge to fully safeguard the right to counsel has been stated many times by the United States supreme court. That court has stated that no hard and fast rule may be promulgated whereby it can be determined that a defendant's constitutional right to due process of law has been infringed. Rather, this determination must turn on the particular facts of each case, the circumstances present which shall include consideration of the background, training, experience and conduct of the defendant. State v. Coates, 1967-NMSC-199, 78 N.M. 366, 431 P.2d 744.

Limitation upon appointed counsel's fee is constitutional. — Defendant's argument that the statutory attorney fee limitation of $400 in defense of indigent criminal cases (31-16-8 NMSA 1978) was a denial of equal protection and due process was without merit where there was no claim that the defendant was poorly represented, nor were there any facts indicating how the statutory fee limitation so deprived the defendant. State v. Silver, 1971-NMCA-112, 83 N.M. 1, 487 P.2d 910.

Right only denied when trial becomes "sham" or "farce". — Mere improvident strategy, bad tactics, mistake, carelessness or inexperience do not amount to ineffective assistance of counsel, unless taken as a whole the trial was a "mockery of justice". Otherwise expressed, counsel is presumed competent, and a defendant is denied his right only when the trial becomes a "sham" or a "farce". State v. Walburt, 1967-NMSC-271, 78 N.M. 605, 435 P.2d 435.

Advice to plead guilty and inexperience are not incompetence. — The constitutional guarantee of assistance of counsel in a criminal action implies the "effective assistance of counsel". The fact, however, that an attorney advises his client to plead guilty in the hope of obtaining a lighter sentence is not an indication of incompetence, nor can inexperience be treated as the equivalent of incompetence. State v. Walburt, 1967-NMSC-271, 78 N.M. 605, 435 P.2d 435.

Adequacy of representation in prior trial is issue under habitual criminal statute. — Question of the adequacy of representation so as to meet the requirements of due process in a prior trial and conviction in another state may be raised as an issue under the habitual criminal statute. State v. Dalrymple, 1965-NMSC-124, 75 N.M. 514, 407 P.2d 356.

Factors considered in time necessary to prepare defense. — The nature of the offense, the number of witnesses and the skill of the attorney are all variables to be taken into consideration in each case in considering the amount of time necessary to prepare a defense. State v. Nieto, 1967-NMSC-142, 78 N.M. 155, 429 P.2d 353.

Police regulation prohibiting consulting attorney for four hours. — Where defendant, accused of driving while intoxicated, was refused permission to contact his attorney and personal physician following booking by reason of police regulation that would not permit person arrested for intoxication to consult an attorney for four hours after arrest, but was treated by physician at county hospital within 30 minutes after reaching police headquarters, constitutional right to due process was not denied. City of Albuquerque v. Patrick, 1957-NMSC-084, 63 N.M. 227, 316 P.2d 243.

Attorney, not judge, is chief guardian of defendant's rights. — The legal system is primarily of an adversary nature, the guardianship of the defendant's rights lying chiefly with his attorney, not the judge, and rights not asserted by the defendant's attorney generally are waived. Tsiosdia v. Rainaldi, 1976-NMSC-011, 89 N.M. 70, 547 P.2d 553.

Voluntary guilty plea on advice of counsel is binding. — An involuntary plea of guilty is inconsistent with the constitutional guarantee of due process, but when a plea of guilty is made voluntarily after proper advice of counsel and with a full understanding of the consequences, the plea is binding. State v. Robbins, 1967-NMSC-091, 77 N.M. 644, 427 P.2d 10, cert. denied, 389 U.S. 865, 88 S. Ct. 130, 19 L. Ed. 2d 137.

The trial court is not obligated to explain the effect of a guilty plea entered by a defendant represented by counsel. State v. Tipton, 1967-NMSC-270, 78 N.M. 600, 435 P.2d 430.

Counsel may be waived without deprivation of due process. — In case where sentencing court repeatedly cautioned appellant concerning gravity of habitual criminal charge, and where appellant's answers to questions by the court were by his own admission voluntarily given and where each of the prior convictions was freely acknowledged, the waiver of counsel was intelligently made, the appellant was not deprived of due process and, therefore, the district court's denial of the motion to vacate sentence made under Rule 93, N.M.R. Civ. P. (now Rule 5-802 NMRA) (which only applies to post-conviction motions made prior to September 1, 1975), was correct. State v. Coates, 1967-NMSC-199, 78 N.M. 366, 431 P.2d 744.

Counsel need not be appointed for appeal to United States supreme court. — Habeas corpus relief was refused on grounds that there was no constitutional compulsion requiring the supreme court of New Mexico to appoint counsel to assist defendant in taking an appeal in a criminal case from that court to the supreme court of the United States. Peters v. Cox, 341 F.2d 575 (10th Cir. 1965), cert. denied, 382 U.S. 863, 86 S. Ct. 126, 15 L. Ed. 2d 101 (1965).

Counsel is not required at parole revocation hearing. — Neither due process nor the applicable statutes require that parolees be provided with appointed counsel or represented by employed counsel when they appear before the parole board in a revocation hearing. Robinson v. Cox, 1966-NMSC-210, 77 N.M. 55, 419 P.2d 253 (prisoner sentenced and paroled to detainer).

8. SPECIFIC STATUTES.

Withdrawal of the six-month rule did not violate due process as an ex post facto law. — Where the district court dismissed defendant’s case under the six-month rule without engaging in a speedy trial analysis because the state had failed to show exceptional circumstances for filing a motion for an extension of time to commence trial well beyond the deadlines required under Rule 5-604 NMRA; and the state’s appeal from the order of dismissal was pending on May 12, 2010, the withdrawal of the six-month rule in defendant’s case did not violate due process as an ex post facto law. State v. Romero, 2011-NMSC-013, 150 N.M. 80, 257 P.3d 900.

Phrase "use of force or coercion" is not unconstitutionally vague. — The language in Section 30-9-11 NMSA 1978, "perpetrated by the use of force or coercion", is not unconstitutionally vague, since the crime is defined in terms of a result that defendant causes, and if a defendant causes such a result by the use of force or coercion, force or coercion was the method which caused the result, that is, the crime. State v. Jiminez, 1976-NMCA-096, 89 N.M. 652, 556 P.2d 60.

Legislation held too vague. — Portion of city vagrancy ordinance proscribing either loitering in, about or on any street, land, avenue, alley, any other public way, public place, at any public gathering or assembly or in or about any store, shop or business or commercial establishment, or on any private property or place without lawful business there; or loitering about or on any public, private or parochial school, college, seminary grounds or buildings, either on foot or in or on any vehicle, without lawful business there, was unconstitutional upon its face for vagueness and overbreadth, because it condemned acts as criminal to which no reasonable person would attribute wrongdoing or misconduct. Balizer v. Shaver, 1971-NMCA-010, 82 N.M. 347, 481 P.2d 709.

The provisions of 30-36-5 NMSA 1978, concerning the "totaling" of amounts of worthless checks, are so vague that they offend due process and are void. Not all of the section, however, is unconstitutional. Only the "totaling" provisions are void, and those provisions are severable. Severing the "totaling" provisions from the section leaves the remaining portion of that section consistent with 30-36-4 NMSA 1978, which makes an offense out of each worthless check issued. Where defendant was convicted of issuing four worthless checks, he could have been sentenced for each offense under the remaining portion of 30-36-5 NMSA 1978. Therefore, the trial court erred in dismissing the information. State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462.

The term "lewdness" in 40-34-15, 1953 Comp., now repealed, if dissociated from "assignation or prostitution", would be too vague and indefinite to comply with the due process of law requirements. State ex rel. Murphy v. Morley, 1957-NMSC-087, 63 N.M. 267, 317 P.2d 317 (holding term not intended to be dissociated).

Legislation held not too vague. — Section 30-6-2 NMSA 1978, making the abandonment of a dependent a criminal offense, is not unconstitutionally vague and does not violate due process, as the statute contains no requirement that affirmative action be taken to obtain public welfare benefits. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Section 30-20-13C NMSA 1978, prior to the 1975 amendment thereof, allowed control of campus disturbances in terms marked by flexibility and reasonable breadth, rather than meticulous specificity, and was not void for vagueness. State v. Silva, 1974-NMCA-072, 86 N.M. 543, 525 P.2d 903, cert. denied, 86 N.M. 528, 525 P.2d 888.

The term "constructive transfer" in the definition of "deliver" in the Controlled Substances Act, 30-31-2 G NMSA 1978, is not void under the due process clause on the grounds of vagueness. State v. McHorse, 1973-NMCA-144, 85 N.M. 753, 517 P.2d 75.

Defendant's argument as to unconstitutional vagueness of 30-31-23 B NMSA 1978 which makes possession of more than eight ounces of marijuana in the forms set out by statute a felony, was not well taken, since the language of definitional 30-31-2 O NMSA 1978, coupled with 30-31-23 B(3) NMSA 1978, is not so indefinite that men of common intelligence have to guess at its meaning and scope. State v. Olive, 1973-NMCA-131, 85 N.M. 664, 515 P.2d 668, cert. denied, 85 N.M. 639, 515 P.2d 643.

Sections 30-19-3F and 30-19-4 B NMSA 1978 are not void for vagueness because they provide different punishment for the same act, since the two statutes do not relate to the same activity. Section 30-19-3 F NMSA 1978 requires a positive act by an accused relating to commercial gambling, while 30-19-4 B NMSA 1978 connotes mere passive acquiescence in permitting a gambling device to be set up for use for the purpose of gambling in a place under his control. State v. Marchiondo, 1973-NMCA-137, 85 N.M. 627, 515 P.2d 146, cert. denied, 85 N.M. 639, 515 P.2d 643.

Defendant's contention that the words "held to service against the victim's will" in 30-4-1 NMSA 1978 have no general meaning which the public can comprehend was not supported by argument or authority and cannot find support in reason, and therefore the statute is not so vague as to violate due process. State v. Aguirre, 1972-NMSC-081, 84 N.M. 376, 503 P.2d 1154.

Section 30-16-32 NMSA 1978 is not unconstitutionally vague, the language "signs the name of another" (which defendant argued is vague and ambiguous because it can reasonably be interpreted in two distinct ways) has but one meaning, and that is that "another" means "other than oneself". State v. Sweat, 1972-NMCA-162, 84 N.M. 416, 504 P.2d 24.

Former 40A-9-9, 1953 Comp., defining sexual assault as the indecent handling of or indecent exposure in the presence of a person under the age of 16, when considered in light of statute as a whole, was sufficiently precise to meet due process standards. State v. Minns, 1969-NMCA-035, 80 N.M. 269, 454 P.2d 355, cert. denied, 80 N.M. 234, 453 P.2d 597.

Since criminal intent is construed to be a necessary element of crime of possession of burglary tools, Laws 1925, ch. 63, § 1, was not void for indefiniteness and uncertainty under the constitution. State v. Lawson, 1955-NMSC-069, 59 N.M. 482, 286 P.2d 1076. See Section 30-16-5 NMSA 1978.

Section 30-16-5 NMSA 1978, as to possession of burglary tools, gives notice that one is exposed to criminal sanctions if one: (1) possesses an instrument or device, (2) the instrument or device is designed or commonly used to commit burglary, and (3) the instrument or device is possessed under circumstances evincing an intent to use the instrument or device in committing burglary, and thus the statute is not void for vagueness, since it gives fair warning that possession of the type of instrument described in the statute, and under the circumstances described in the statute, is a crime. State v. Najera, 1976-NMCA-088, 89 N.M. 522, 554 P.2d 983.

Neither 30-9-11 nor 30-9-13 NMSA 1978 is unconstitutionally vague or overbroad, nor do the statutes encourage arbitrary or discriminatory prosecution. State v. Pierce, 1990-NMSC-049, 110 N.M. 76, 792 P.2d 408.

The terms "without good cause", "protracted period", "maliciously", "detaining" and "deprive permanently" as used in 30-4-4 NMSA 1978, the custodial interference statute, are of such well recognized meaning that individuals are placed on notice of the conduct sought to be proscribed and, therefore, the statute and indictments brought thereunder are not unconstitutionally vague. State v. Luckie, 1995-NMCA-075, 120 N.M. 274, 901 P.2d 205, cert. denied, 120 N.M. 184, 899 P.2d 1138.

Child solicitation by electronic communication device statute is not void for vagueness. — Where defendant was charged with two counts of child solicitation by electronic communication device, and where defendant argued that § 30-37-3.2 NMSA 1978 should be declared void for vagueness because the statute does not provide clear notice of what is prohibited or there are no clear standards as to what is prohibited and, as such, violates his due process rights, defendant's constitutional rights were not violated because the conduct prohibited by the statute, solicitation of minors through electronic communications, is straightforward such that a person of ordinary intelligence using common sense would understand that § 30-37-3.2 prohibits an individual from using an electronic device to knowingly and intentionally solicit a child under sixteen years of age, to engage in the identified sexual acts, and when the individual is at least four years older than the child. As applied in this case, § 30-37-3.2 provided fair warning that defendant's conduct of sending the undercover officer, whom he believed to be a fourteen-year-old girl, messages with instructions on how to masturbate and making arrangements to meet with the child in order to engage in specific sexual acts, was prohibited. State v. Julg, 2021-NMCA-058, cert. denied.

Implied consent to sobriety test is constitutional. — The Implied Consent Act (66-8-105 to 66-8-112 NMSA 1978), framed upon the premise that when a person obtains a license to operate a motor vehicle, he impliedly consents to the sobriety test, violates neither due process nor equal protection. Commissioner of Motor Vehicles v. McCain, 1973-NMSC-023, 84 N.M. 657, 506 P.2d 1204.

Abortion statute violates due process in part. — Portions of abortion statute, 30-5-1 NMSA 1978, which define "justified medical termination" (30-5-3 NMSA 1978 proscribes terminations that are not "justified medical terminations") as only existing where physician uses acceptable medical procedures in accredited hospitals upon certification by special hospital board that either continuation of pregnancy would result in death or grave injury to mother, child is likely to have grave physical or mental defects or pregnancy has resulted from rape or incest, are unconstitutional as violative of due process by virtue of holdings in Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), reh’g denied, 410 U.S. 959, 93 S. Ct. 1410, 35 L. Ed. 2d 694 (1973), and Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), reh’g denied, 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973). State v. Strance, 1973-NMCA-024, 84 N.M. 670, 506 P.2d 1217.

City noise ordinance not overly vague. — The examples as set out in a city ordinance proscribing certain unreasonably loud noises were not so vague that men of common intelligence must guess at their meaning. City of Farmington v. Wilkins, 1987-NMCA-088, 106 N.M. 188, 740 P.2d 1172, cert. denied, 106 N.M. 174, 740 P.2d 1158.

III. EQUAL PROTECTION.

A. GENERALLY.

A partisan gerrymandering claim is justiciable under N.M. Const., Art. II, Sec. 18. — Where plaintiffs filed suit in the district court alleging that the congressional districting maps enacted in 2021 violate New Mexico’s equal protection clause and sought a declaration that the challenged map is an unconstitutional partisan gerrymander, and where petitioners, defendants in the district court, moved to dismiss plaintiffs’ lawsuit, arguing that the lawsuit raised a nonjusticiable political question, and where the district court denied the motion, reasoning that plaintiffs had alleged a valid case that the challenged map is an unlawful political gerrymander that dilutes Republican votes in congressional races in New Mexico but also denied plaintiffs’ preliminary injunction, and where, following the district court’s orders denying the motion to dismiss and for preliminary injunction, petitioners, in their capacities as elected officials, filed a petition seeking a stay of proceedings and a writ of superintending control to resolve whether N.M. Const., Art. II, Sec. 18 provides a remedy for a claim of alleged partisan gerrymandering and whether the issue of alleged partisan gerrymandering is a justiciable issue, the New Mexico supreme court held that a partisan gerrymandering claim is justiciable under N.M. Const., Art. II, Sec. 18, because the right to vote is of paramount importance in New Mexico and vote dilution can rise to a level of constitutional harm for which Art. II, Sec. 18 provides a remedy. Grisham v. Van Soelen, 2023-NMSC-027.

Three-part test for an equal protection claim asserting a partisan gerrymander. — Where plaintiffs filed suit in the district court alleging that the congressional districting maps enacted in 2021 violate New Mexico’s equal protection clause and sought a declaration that the challenged map is an unconstitutional partisan gerrymander, and where petitioners, defendants in the district court, moved to dismiss plaintiffs’ lawsuit, arguing that the lawsuit raised a nonjusticiable political question, and where the district court denied the motion, reasoning that plaintiffs had alleged a valid case that the challenged map is an unlawful political gerrymander that dilutes Republican votes in congressional races in New Mexico but also denied plaintiffs’ preliminary injunction, and where, following the district court’s orders denying the motion to dismiss and for preliminary injunction, petitioners, in their capacities as elected officials, filed a petition seeking a stay of proceedings and a writ of superintending control to resolve whether N.M. Const., Art. II, Sec. 18 provides a remedy for a claim of alleged partisan gerrymandering and whether the issue of alleged partisan gerrymandering is a justiciable issue, the New Mexico supreme court held that for an equal protection claim asserting a partisan gerrymander under N.M. Const., Art. II, Sec. 18, the plaintiffs challenging a districting plan must prove that state officials’ predominant purpose in drawing a district’s lines was to entrench their party in power by diluting the votes of citizens favoring its rival, and must establish that the lines drawn in fact have the intended effect by substantially diluting their votes, and, if established, the state must come up with a legitimate, non-partisan justification to save its map. Grisham v. Van Soelen, 2023-NMSC-027.

Plaintiffs' claim that defendants' failure to adequately regulate oil and gas production and pollution failed to allege a classification that results in discriminatory treatment. — Where plaintiffs, various advocacy organizations and individual New Mexicans, including several Indigenous people, filed suit against various executive agencies and officials, including the governor, the legislature, and the state of New Mexico itself, seeking various forms of declaratory and injunctive relief that call for the judiciary to declare that the current statutory and regulatory scheme controlling pollution from oil and natural gas fails to protect the environment, and claiming that defendants' failure to adequately regulate oil and gas production and pollution has resulted in unconstitutionally disparate treatment of frontline community members, Indigenous people, and New Mexico's youth, in violation of the equal protection clause of the New Mexico constitution, the district court erred in denying defendants' motion to dismiss, because plaintiffs failed to establish a viable equal protection claim. Plaintiffs failed to allege a classification that results in discriminatory treatment and therefore failed to present an equal protection claim upon which relief can be granted. Atencio v. State, 2026-NMCA-011, cert. granted.

Intermediate scrutiny is the proper level of scrutiny for adjudication of a partisan gerrymandering claim under N.M. Const., Art. II, Sec. 18. — Where plaintiffs filed suit in the district court alleging that the congressional districting maps enacted in 2021 violate New Mexico’s equal protection clause and sought a declaration that the challenged map is an unconstitutional partisan gerrymander, and where petitioners, defendants in the district court, moved to dismiss plaintiffs’ lawsuit, arguing that the lawsuit raised a nonjusticiable political question, and where the district court denied the motion, reasoning that plaintiffs had alleged a valid case that the challenged map is an unlawful political gerrymander that dilutes Republican votes in congressional races in New Mexico and also denied plaintiffs’ preliminary injunction, and where, following the district court’s orders denying the motion to dismiss and for preliminary injunction, petitioners, in their capacities as elected officials, filed a petition seeking a stay of proceedings and a writ of superintending control to resolve whether N.M. Const., Art. II, Sec. 18 provides a remedy for a claim of alleged partisan gerrymandering and whether the issue of alleged partisan gerrymandering is a justiciable issue, the New Mexico supreme court held that intermediate scrutiny is the proper level of scrutiny for adjudication of a partisan gerrymandering claim under N.M. Const., Art. II, Sec. 18, because intermediate scrutiny properly balances the competing constitutional interests of a partisan gerrymandering claim. Therefore, when applying intermediate scrutiny, a court must examine the governmental interests served by the restriction of the right affected, and whether the restriction of the right affected under the statute bears a substantial relationship to any such important interests. Grisham v. Van Soelen, 2023-NMSC-027.

Guidance for courts considering a partisan gerrymandering claim. — To satisfy the effects prong of the partisan gerrymandering test, a plaintiff must provide sufficient evidence that the plaintiff’s own district was either packed or cracked, depending on the allegations, and that the resultant dilution of the plaintiff’s vote is substantial. For a district court to find a violation of N.M. Const., Art. II, Sec. 18, such district-specific evidence of disparate treatment should be as objective as possible, by comparing such evidence as voter registration percentages or data for the political party affiliation of the individual plaintiffs under the prior districting map against parallel percentages or data under the challenged districting map. Further, a district court adjudicating a partisan gerrymandering claim must determine whether the evidence shows the challenged redistricting map substantially diluted the votes of plaintiffs within their district, though statewide evidence may also be relevant. Grisham v. Van Soelen, 2023-NMSC-027.

Cap on medical malpractice damages does not violate equal protection. — The cap on medical malpractice damages in 41-5-6 NMSA 1978 does not violate the equal protection clause of the United States Constitution. Salopek v. Friedman, 2013-NMCA-087.

Restrictions on engaging in business or profession must apply to all. — It is undoubtedly the right of every citizen to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons. State v. Collins, 1956-NMSC-046, 61 N.M. 184, 297 P.2d 325.

Federal and state provisions correspond. — There is a close correspondence in meaning and purpose between the principles underlying the equal protection clauses of the U.S. Const., amend. XIV, and of this section and the general versus special law provisions of the Springer Act, former 48 U.S.C. § 1471, and of N.M. Const., art. IV, § 24. Board of Trustees v. Montano, 1971-NMSC-025, 82 N.M. 340, 481 P.2d 702.

The standards for a violation of the equal protection clauses of the United States and New Mexico constitutions are the same. Garcia v. Albuquerque Pub. Schools Bd. of Educ., 1980-NMCA-081, 95 N.M. 391, 622 P.2d 699, cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981).

The three standards of review and a suggested fourth level of review, used in equal protection cases. Alvarez v. Chavez, 1994-NMCA-133, 118 N.M. 732, 886 P.2d 461, overruled on other grounds, Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305, overruling 1995-NMSC-027, 119 N.M. 602, 893 P.2d 1006.

Attorney fee award not warranted in proceeding to enforce a provision of 42 U.S.C. § 1983. — Where plaintiffs petitioned the district court for a temporary restraining order and injunctions against the board of trustees of the Anton Chico land grant (board), asserting that they were heirs and qualified voting members of the land grant, and asserted that the board violated plaintiffs' rights under the equal protection clauses of the federal and state constitutions and Voting Rights Act of 1965, invoking 42 U.S.C. § 1983, which establishes liability for civil rights violations, and 42 U.S.C. § 1988(b), which provides that a court may award a reasonable attorney fee to the prevailing party in an action to enforce § 1983, and where, several years later, plaintiffs and the board entered into a settlement agreement that left the amount of attorney fees to which plaintiffs were entitled as the only outstanding issue, the district court did not err in denying plaintiffs' motion for attorney fees, because in lawsuits resolved by settlement agreement, prevailing party status for § 1988 purposes is available only when a party secures judicial relief, and this relief must take the form of a material alteration of the legal relationship between the party and its adversary. The parties in this case entered into a settlement agreement which was not enforced through a consent decree, and therefore the litigation in this case did not produce the court-ordered change in the legal relationship between plaintiffs and the board necessary to receive a fee award under § 1988. Marquez v. Bd. of Trustees for the Anton Chico Land Grant, 2019-NMCA-075.

Only members of class discriminated against can complain. — Denial of equal rights can be urged only by those who can show that they belong to class discriminated against. State v. Hines, 1967-NMSC-237, 78 N.M. 471, 432 P.2d 827; Wiggs v. City of Albuquerque, 1952-NMSC-013, 56 N.M. 214, 242 P.2d 865; McKinley Cnty. Bd. of Educ. v. State Tax Comm'n, 1922-NMSC-064, 28 N.M. 221, 210 P. 565; Pueblo of Isleta v. Tondre, 1913-NMSC-067, 18 N.M. 388, 137 P. 86 (opinion on motion for rehearing).

Person who did not suggest that he might become purchaser of any bond under proposed bond issue could not complain that statute authorizing issuance and sale of revenue bonds to raise funds for building a municipal auditorium was discriminatory. Wiggs v. City of Albuquerque, 1952-NMSC-013, 56 N.M. 214, 242 P.2d 865.

Since plaintiff does not assert that it is a member of a suspect class or was denied a fundamental right, a state regulation need only be rationally related to a legitimate government purpose. E. Spire Communications, Inc. v. New Mexico Pub. Regulation Comm'n, 392 F.3d 1204 (10th Cir. 2004), aff'g 269 F. Supp. 2d 1310 (D.N.M. 2003).

Equal protection does not prohibit classification for legislative purposes, provided that there is a rational and natural basis therefor, that it is based on a substantial difference between those to whom it does and those to whom it does not apply, and that it is so framed as to embrace equally all who may be in like circumstances and situations. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238; Rust Tractor Co. v. Bureau of Revenue, 1970-NMCA-107, 82 N.M. 82, 475 P.2d 779, cert. denied, 82 N.M. 81, 475 P.2d 778; Michael J. Maloof & Co. v. Bureau of Revenue, 1969-NMSC-100, 80 N.M. 485, 458 P.2d 89.

The fact that the legislature is entitled to enact statutes which apply only to limited subjects or persons without having the effect of making them special legislation is well recognized. Airco Supply Co. v. Albuquerque Nat'l Bank, 1961-NMSC-031, 68 N.M. 195, 360 P.2d 386.

Classification must be reasonable. — There is no denial of the equal protection of the laws where a reasonable classification is made by the legislature and all persons within a given class are treated alike. Aragon v. Cox, 1965-NMSC-132, 75 N.M. 537, 407 P.2d 673, overruled in part, State v. Chavez, 1966-NMSC-217, 77 N.M. 79, 419 P.2d 456.

Judicial inquiry under the equal protection clause does not end with a showing of equal application among the members of the class defined by the legislation; the courts must also reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

A classification must be reasonable and not arbitrary, and the classification attempted, in order to avoid the constitutional prohibition, must be founded upon pertinent and real differences as distinguished from artificial ones. Mere difference, of itself, is not enough. City of Raton v. Sproule, 1967-NMSC-141, 78 N.M. 138, 429 P.2d 336.

Classification, in order to be legal, must be rational; it must be founded upon real differences of situation or condition, which bear a just and proper relation to the attempted classification, and reasonably justify a different rule. Burch v. Foy, 1957-NMSC-017, 62 N.M. 219, 308 P.2d 199.

It is competent for the legislature to classify and adapt a law general in nature to a class, but such classification must be a natural, and not an arbitrary or fictitious one, and the operation of such general law must be as general throughout the state as is the genera therein provided for. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

Equal protection does not prohibit legislatively created classifications that are rationally based. State v. Neely, 1991-NMSC-087, 112 N.M. 702, 819 P.2d 249.

All members of class must be treated alike. — Given a reasonable classification of subjects, "equal protection of the laws" is had if all within any given class are treated alike. All such classifications must be based upon some reasonable distinction. Pueblo of Isleta v. Tondre, 1913-NMSC-067, 18 N.M. 388, 137 P. 86 (opinion on motion for rehearing).

The test as to whether legislation is general, and therefore constitutional, depends upon the reasonableness of the classification and whether the statute is general to the class it embraces, operating uniformly on all members of that class. Airco Supply Co. v. Albuquerque Nat'l Bank, 1961-NMSC-031, 68 N.M. 195, 360 P.2d 386.

If legislation makes no arbitrary or unreasonable distinction within the sphere of its operation and accords substantially equal and uniform treatment to all persons similarly situated, the law complies with the equality provisions of state and federal constitutions. Weiser v. Albuquerque Oil & Gasoline Co., 1958-NMSC-061, 64 N.M. 137, 325 P.2d 720; State v. Thompson, 1953-NMSC-072, 57 N.M. 459, 260 P.2d 370.

While classification is proper, there must always be uniformity within the class. If persons under the same circumstances and conditions are treated differently, there is arbitrary discrimination, and not classification. Burch v. Foy, 1957-NMSC-017, 62 N.M. 219, 308 P.2d 199.

The reasonableness of a classification is in the first instance a legislative question. — The legislature is vested with a wide discretion in distinguishing, selecting and classifying. State v. Pacheco, 1969-NMCA-127, 81 N.M. 97, 463 P.2d 521; Romero v. Tilton, 1967-NMCA-035, 78 N.M. 696, 437 P.2d 157, cert. denied, 78 N.M. 704, 437 P.2d 165 (1968), overruled by McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

The legislature of a state has necessarily a wide range of discrimination in distinguishing, selecting and classifying; it is sufficient to satisfy the demands of the constitution if the classification is practical and not palpably arbitrary. City of Raton v. Sproule, 1967-NMSC-141, 78 N.M. 138, 429 P.2d 336.

It is in the first instance a legislative question as to whether a classification is reasonable. The policy reasons behind judicial reluctance to overturn statutes on other than grounds involving fundamental constitutional values involves separation of powers considerations whereby the judiciary defers to legislative determination as to whether a particular classification is rational. State v. Edgington, 1983-NMCA-036, 99 N.M. 715, 663 P.2d 374, cert. denied, 99 N.M. 644, 662 P.2d 645, cert. denied, 464 U.S. 940, 104 S. Ct. 354, 78 L. Ed. 2d 318 (1983).

Facts sustaining classification will be presumed. — The fact that the legislature has enacted laws applicable to only one community land grant, and has thus classified some of the grants differently, is entitled to great weight. Only if a statutory classification is so devoid of reason to support it, as to amount to mere caprice, will it be stricken down. If any state of facts can be reasonably conceived which will sustain a classification, there is a presumption that such facts exist. Board of Trustees v. Montano, 1971-NMSC-025, 82 N.M. 340, 481 P.2d 702.

If any state of facts can reasonably be conceived which will sustain a statutory classification, the statute is valid. Garcia v. Albuquerque Pub. Schs. Bd. of Educ., 1980-NMCA-081, 95 N.M. 391, 622 P.2d 699, cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981).

Under the rational basis test, a statute will not be set aside if any state of the facts may be reasonably conceived to justify it, and any redeeming value of the classification is sufficient to render the statute constitutional. State v. Edgington, 1983-NMCA-036, 99 N.M. 715, 663 P.2d 374, cert. denied, 99 N.M. 644, 662 P.2d 645, cert. denied, 464 U.S. 940, 104 S. Ct. 354, 78 L. Ed. 2d 318 (1983).

Legislature's failure to compile legislative history does not mean that statute must fall. Different classifications are permitted and the court may glean the reason for those classifications from extrinsic sources. State v. Edgington, 1983-NMCA-036, 99 N.M. 715, 663 P.2d 374, cert. denied, 99 N.M. 644, 662 P.2d 645, cert. denied, 464 U.S. 940, 104 S. Ct. 354, 78 L. Ed. 2d 318 (1983).

Court will not inquire into wisdom of statute. — In keeping with the traditional self-restraint of the supreme court regarding constitutional challenges, it refuses to inquire into the wisdom, the policy or the justness of an act of the legislature, and only when the court is satisfied that the legislature has wandered outside the confines of the constitution by enacting unequal, oppressive and arbitrary legislation will such legislation be struck down. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

Court cannot substitute its view in selecting and classifying for that of legislature. Anaconda Co. v. Property Tax Dep't, 1979-NMCA-158, 94 N.M. 202, 608 P.2d 514, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980).

Unless the classification is clearly arbitrary and capricious or void for uncertainty, a court cannot substitute its views in selecting and classifying for those of the legislature. Michael J. Maloof & Co. v. Bureau of Revenue, 1969-NMSC-100, 80 N.M. 485, 458 P.2d 89.

Any redeeming value of classification is sufficient. — The test as to whether a statute is unconstitutional under the equal protection clauses is very strict since any redeeming value of the classification is sufficient. Espanola Hous. Auth. v. Atencio, 1977-NMSC-074, 90 N.M. 787, 568 P.2d 1233, rev'g1977-NMCA-073, 90 N.M. 799, 569 P.2d 1245.

Certain classifications and interests require strict scrutiny. — When a statute is challenged on the basis of the equal protection clause, specific tests are applicable. Where legislation involves "suspect classifications" (race, etc.) or touches "fundamental interests" (right to vote), it is subject to strict scrutiny. But where no such concerns are present, legislation is subject to a more liberal critique. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

Classification must be capricious to be stricken down. — Only if a classification is so devoid of any semblance of reason as to amount to mere caprice, depending on legislative fiat alone for support, is a court justified in striking down a legislative act as violative of constitutional guarantees. State v. Pacheco, 1969-NMCA-127, 81 N.M. 97, 463 P.2d 521; Romero v. Tilton, 1967-NMCA-035, 78 N.M. 696, 437 P.2d 157, cert. denied, 78 N.M. 704, 437 P.2d 165 (1968), overruled by McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

Is it so wholly devoid of any semblance of reason to support it, as to amount to mere caprice, depending on legislative fiat alone for support? If so, it will be stricken down as violating constitutional guarantees. But the fact that the legislature has adopted the classification is entitled to great weight. City of Raton v. Sproule, 1967-NMSC-141, 78 N.M. 138, 429 P.2d 336.

To show a violation of equal protection, it must be demonstrated that legislation is clearly arbitrary and unreasonable, not just that it is possibly arbitrary and unreasonable. Gallegos v. Homestake Mining Co., 1982-NMCA-052, 97 N.M. 717, 643 P.2d 281.

Only rational classification required unless personal rights trammeled or suspect classification. — Unless a challenged statute trammels fundamental personal rights or is drawn upon inherently suspect classifications, such as race, religion or alienage, the court presumes the constitutionality of the statutory discrimination and requires only that the classification challenged be rationally related to a legitimate state interest. Garcia v. Albuquerque Pub. Schs. Bd. of Educ., 1980-NMCA-081, 95 N.M. 391, 622 P.2d 699, cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981).

Class-of-one equal protection. — A class-of-one exists when a plaintiff alleges that the plaintiff has been intentionally treated differently from other similarly situated and that there is no rational basis for the difference in treatment. The two elements that must be proven are that a public official inflicts a cost burden on one person without imposing it on those who are similarly situated in material respects and that there is no conceivable basis other than a wholly illegitimate motive for the official’s actions. Gentry v. Timberon Water and Sanitation Dist., 2012-NMCA-019, 270 P.3d 1286.

Absolute precision in classification is not required. — The basis underlying the equal protection doctrine is that persons similarly situated shall receive like treatment; it does not require absolute precision or mathematical nicety in the designation of classifications, but it does not tolerate classifications which are so grossly overinclusive as to defy notions of fairness and reasonableness. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

In the area of economics and social welfare, a state does not violate the equal protection clause merely because the classifications made by its laws are imperfect. If the classification has some reasonable basis, it does not offend the constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality. Musgrove v. Department of Health & Social Servs., 1972-NMCA-091, 84 N.M. 89, 499 P.2d 1011, cert. denied, 84 N.M. 77, 499 P.2d 999.

Absolutely equal treatment of parties performing similar service is not demanded in order for a legislative act to withstand an attack on its constitutionality, but it is nevertheless imperative that where classification is attempted, the same must be reasonable and based on real differences bearing a proper relationship to the classification, and there must be uniformity of treatment within each class. Community Pub. Serv. Co. v. New Mexico Pub. Serv. Comm'n, 1966-NMSC-053, 76 N.M. 314, 414 P.2d 675, cert. denied, 385 U.S. 933, 87 S. Ct. 292, 17 L. Ed. 2d 213 (1966).

Power to classify carries with it power to establish different sets of rules applicable to the different classes, and it is not fatal that the particular rules within the set may result in some inequality when applied to specific instances. De Soto Motor Corp. v. Stewart, 62 F.2d 914 (10th Cir. 1932).

Changed circumstances may make fair classification unfair. — A classification that may once have had a fair and substantial relation to the objectives of the statute because of an existing factual setting may lose its relationship due to altered circumstances. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

Unequal administration of apparently fair law violates constitution. — Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. However, unequal administration of the law or ordinance, so as to violate the state and United States constitutions, will not result unless an intentional or purposeful discrimination is shown, and this cannot be presumed. One must prove more than mere nonenforcement against other violators and present something which in effect amounts to an intentional violation of the essential principle of practiced uniformity. Barber's Super Mkts., Inc. v. City of Grants, 1969-NMSC-115, 80 N.M. 533, 458 P.2d 785.

Classification based solely on time element is unreasonable. — To avoid constitutional prohibition, classification must be founded upon some pertinent or real differences as distinguished from artificial ones, and a legislative classification based wholly upon the time element when the time selected bears no reasonable relationship to object of the legislation is unreasonable and repugnant to constitution. State v. Sunset Ditch Co., 1944-NMSC-004, 48 N.M. 17, 145 P.2d 219.

Statute which applied only to corporations organized under territorial law and not to corporations organized after statehood (Laws 1921, ch. 185) was unconstitutional because it denied equal protection of the law and impaired an obligation of contract. State v. Sunset Ditch Co., 1944-NMSC-004, 48 N.M. 17, 145 P.2d 219.

Classification based upon possibility of fraud in some cases. — Although the prevention of fraud and collusion is a valid state interest, and the courts should take notice of fraud and collusion when found to exist in a particular instance, nevertheless the fact that there may be greater opportunity for fraud or collusion in one class of cases than another does not warrant courts of law in closing the door to all cases of that class, and courts must depend upon the efficacy of the judicial processes to ferret out the meritorious from the fraudulent in particular cases. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

Right to vote may be reasonably restricted. — The state of New Mexico has the power to impose reasonable residence and other restrictions on the right to vote, so long as the restrictions are not discriminatory and are based on a reasonable classification. City of Raton v. Sproule, 1967-NMSC-141, 78 N.M. 138, 429 P.2d 336.

Classification must serve valid state interest. — If a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the court must determine whether the exclusions are necessary to promote a compelling state interest. As long as the election in question is not one of special interest, any classification restricting the franchise on grounds other than residence, age and citizenship cannot stand unless the district or state can demonstrate that the classification serves a compelling state interest. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176.

Discriminatory use of peremptory challenges violates equal protection in civil cases. — In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that racial discrimination in selecting a jury in a criminal case violates the equal protection clause of the United States constitution. The same approach described in Batson for determining the existence of racial discrimination in the jury selection of criminal cases also applies in civil cases. Bustos v. City of Clovis, 2016-NMCA-018, cert. denied, 2016-NMCERT-001.

Test to establish discriminatory use of peremptory challenges. — A three-part test is utilized to establish discriminatory use of peremptory challenges. First, the opponent of a peremptory challenge has the burden to establish a prima facie case indicating that the peremptory challenge has been exercised in a discriminatory way. To establish a prima facie case, the challenging party must show that a peremptory challenge was used to remove a member of a protected group from the jury panel, and the facts and other related circumstances raise an inference that the individual was excluded solely on the basis of his or her membership in a protected group. Second, if a prima facie showing is made, the burden then shifts to the proponent of the challenge to come forward with a race-neutral explanation for the challenge. If the explanation offered is not neutral, then a finding of purposeful discrimination may be made without any further showing by the opponent to the challenge. Third, if a neutral explanation is tendered, the district court then determines whether the opponent of the strike has proved purposeful discrimination. Bustos v. City of Clovis, 2016-NMCA-018, cert. denied, 2016-NMCERT-001.

In a civil trial against defendant law enforcement officers, where claims were made for wrongful death, negligent infliction of emotional distress, loss of consortium, battery, and excessive force, and where defendants used three of their five peremptory challenges against prospective jurors with Hispanic surnames and used their one peremptory strike against a prospective alternate juror with a Hispanic surname, defendants’ challenges indicated a pattern of conduct and a motive to keep Hispanics off of the jury. Plaintiffs established a prima facie case of discriminatory conduct in the exercise of peremptory challenges, but defendants failed to rebut the prima facie case by failing to articulate a race-neutral explanation for excusing one of the jurors. The jury selection in this case violated Batson. Bustos v. City of Clovis, 2016-NMCA-018, cert. denied, 2016-NMCERT-001.

District court erred in rejecting defendant’s Batson claim. — Where defendant was indicted for aggravated battery with a deadly weapon, and where, during jury selection at trial, the state used a peremptory strike to exclude a potential juror from serving as an alternate, and where defense counsel objected, arguing that allowing the strike would violate Batson when the excluded juror was the only black person in the venire, had not spoken during voir dire, and the state had not directed any questions to her, and where the prosecutor responded that his reason for striking the juror was that she had not spoken during voir dire and she had legal experience as a paralegal, and where the district court overruled the Batson challenge, stating that the court did not have an issue with the state’s explanation and reasoning and that because the juror would have been seated as the second alternate juror, it was unlikely she would have deliberated on the case, the district court erred by rejecting defendant’s Batson claim, because defendant made a prima facie case of racial discrimination by showing that the state struck a member of a protected racial group and who was the only black person in the venire, raising a presumption of discriminatory motive in the state’s decision to exclude her from the jury, and although the state provided race-neutral explanations for the strike, defendant proved the state’s race-neutral explanations were pretextual by showing that at least two other venire members who had not spoken during voir dire were empaneled as jurors and the state did not strike other potential jurors who also had legal experience. When a prosecutor’s proffered reasons for striking a black panelist applies just as well to an otherwise similar, non-black panelist who is permitted to serve, that is evidence tending to prove purposeful discrimination. State v. Blanton, 2023-NMCA-028, cert. denied.

Facially race-neutral reasons for exercising peremptory strikes. — Where the state, in defendant's trial for assault on a peace officer and disorderly conduct, used all three of its peremptory strikes against prospective jurors with Hispanic surnames, defendant failed to carry his burden of proving purposeful discrimination under Batson where, although defendant established a prima facie case of discriminatory conduct by the state, the state's reasons for striking the prospective jurors, that they displayed unfavorable body language and that they were close in age to defendant and lived in the same small city as defendant, were facially race-neutral and not inherently prejudicial. State v. Dorado, 2019-NMCA-037, cert. denied.

Defendant failed to make a prima facie showing of racial discrimination. — Where, following his conviction for first-degree felony murder, defendant argued that he should be given a new trial because the prosecutor improperly struck a black juror from the venire, the district court did not err in denying defendant's challenge, because defendant failed to offer any facts or other related circumstances that raise an inference that the individual was excluded solely on the basis of his or her membership in a protected group. State v. Revels, 2025-NMSC-021, abrogating State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174 and State v. Baca, 1997-NMSC-059, 124 N.M. 333, 950 P.2d 776.

B. SPECIFIC CLASSIFICATIONS.

Same-gender marriages. — Barring individuals from marrying and depriving them of the rights, protections and responsibilities of civil marriage solely because of their sexual orientation violates the equal protection clause of Article II, Section 18 of the New Mexico constitution. The state of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections and responsibilities that derive from civil marriage under New Mexico law. Griego v. Oliver, 2014-NMSC-003.

Capital felons and lesser offenders are not similarly situated for sentencing purposes. — Where defendant pled guilty to one count of first-degree, willful and deliberate murder, and where, prior to sentencing, defendant filed a motion seeking the opportunity to present mitigating evidence which could eventually shorten his sentence, arguing that 31-18-14 NMSA 1978 is unconstitutional because it does not provide for the opportunity for capital felons to present evidence of mitigating circumstances at sentencing and 31-18-15.1 NMSA 1978 requires the district court to hold a sentencing hearing for lesser offenses, defendant’s equal protection rights were not violated, because first-degree murderers are not similarly situated to lesser offenders, in that first-degree murderers are guilty of a categorically more serious offense. It is a lawful exercise of legislative authority to impose distinct sentencing schemes for first-degree murder and lesser offenses, and the language of 31-18-14 NMSA 1978 reflects an intent that those convicted of first-degree murder be treated differently from less serious offenders, regardless of the maximum possible penalty. State v. Franklin, 2018-NMSC-015.

City of Albuquerque ordinance which prohibits public nudity does not make an invidious gender classification that operates to the disadvantage of women and does not violate the New Mexico equal rights amendment. City of Albuquerque v. Sachs, 2004-NMCA-065, 135 N.M. 578, 92 P.3d 24, cert. denied, 2004-NMCERT-006, 135 N.M. 787, 93 P.3d 1292.

City of Albuquerque ordinance which prohibits public nudity does not discriminate against women in violation of the equal rights amendment in the New Mexico constitution because it prohibits a women from showing her breast in a public place without a fully opaque covering of her entire nipple when there is no such prohibition against men. City of Albuquerque v. Sachs, 2004-NMCA-065, 135 N.M. 578, 92 P.3d 24, cert. denied, 2004-NMCERT-006, 135 N.M. 787, 93 P.3d 1292.

Standard of review of decisions of the commissioners of acequias. — The standard of review in an appeal to the district court from a decision by the commissioners of an acequia pursuant to 73-2-21 NMSA 1978, which permits the district court to set aside, reverse or remand the decision if the district court determines that the commissioners acted fraudulently, arbitrarily or capriciously, or that the commissioners did not act in accordance with law, does not violate the equal protection clause of N.M. Const., art. II, § 18. Pena Blanca Partnership v. San Jose de Hernandez Cmty. Ditch, 2009-NMCA-016, 145 N.M. 555, 202 P.3d 814, cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.

Statute exempting county from requirement of single-member districts does not violate equal protection rights of residents. Montano v. Los Alamos Cnty., 1996-NMCA-108, 122 N.M. 454, 926 P.2d 307, cert. denied, 122 N.M. 416, 925 P.2d 882.

Limitation of city electors to county qualified property owners is reasonable. — The limitation of electors voting on municipal debt or bonds to those property owners who are otherwise qualified to vote in the county is based upon the practical and reasonable consideration that in New Mexico the voter registration records are kept and maintained by the county clerk, are readily available for use in checking qualifications of electors and are used by the municipalities in the county in the conduct of municipal elections. City of Raton v. Sproule, 1967-NMSC-141, 78 N.M. 138, 429 P.2d 336. See 3-30-2, 3-30-3 and 3-30-6 NMSA 1978.

Right to vote for legislature and constitutional amendment may not be distinguished. — There is no rational basis to distinguish between voting on representatives in the legislature, and voting on constitutional amendments. One is no more a necessary ingredient of the democratic process than the other. Nor can it be said that an equal voice in selection of the legislature is of greater importance to a citizen than equality of weight in expression of views on changes in the basic charter, the constitution. State ex rel. Witt v. State Canvassing Bd., 1968-NMSC-017, 78 N.M. 682, 437 P.2d 143.

Requirement of two-thirds vote in each county for amendment is invalid. — A requirement of a two-thirds favorable vote in every county for the adoption of an amendment, when there is a wide disparity in population among counties, must result in greatly disproportionate values to votes in the different counties. Where a vote in one county outweighs 100 votes in another, the "one person, one vote" concept announced in Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963), certainly is not met. State ex rel. Witt v. State Canvassing Bd., 1968-NMSC-017, 78 N.M. 682, 437 P.2d 143. See N.M. Const., art. VII, § 3 and art. XIX, § 1.

Tort Claims Act constitutional. — The Tort Claims Act (41-4-1 to 41-4-27 NMSA 1978) does not violate the equal protection clauses of the United States and New Mexico constitutions. Garcia v. Albuquerque Pub. Schs. Bd. of Educ., 1980-NMCA-081, 95 N.M. 391, 622 P.2d 699.

Educational qualifications may be imposed on bar applicants. — The educational qualifications required of applicants before they are permitted to practice law in New Mexico do not violate the fourteenth amendment or this section, 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 Exam’rs, 1956-NMSC-001, 60 N.M. 393, 291 P.2d 1108.

Failure to pass examination justifies denying admission to bar. — When one fails to pass an appropriate and properly administered bar examination, it is not unreasonable to say that he has demonstrated his lack of proficiency in law so as to justify denying him the right to be admitted to the bar. Accordingly, there has been no denial of due process or equal protection. In re Pacheco, 1973-NMSC-101, 85 N.M. 600, 514 P.2d 1297.

Equal protection not denied without full hearing. — There is a rational basis for according an applicant a full due process hearing in the area of character determinations, and denying such full hearing on the matter of the validity of determinations as to intellectual and learning qualifications arrived at by examination or testing in accordance with recognized procedures and, therefore, petitioner was not denied due process or equal protection of the law by the lack of a full hearing concerning his failure of the bar examination. In re Pacheco, 1973-NMSC-101, 85 N.M. 600, 514 P.2d 1297.

Educational qualifications may be imposed on bar applicants. — The educational qualifications required of applicants before they are permitted to practice law in New Mexico do not violate the fourteenth amendment or this section, 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 Exam’rs, 1956-NMSC-001, 60 N.M. 393, 291 P.2d 1108.

Failure to pass examination justifies denying admission to bar. — When one fails to pass an appropriate and properly administered bar examination, it is not unreasonable to say that he has demonstrated his lack of proficiency in law so as to justify denying him the right to be admitted to the bar. Accordingly, there has been no denial of due process or equal protection. In re Pacheco, 1973-NMSC-101, 85 N.M. 600, 514 P.2d 1297.

Due process not denied without full hearing. — There is a rational basis for according an applicant a full due process hearing in the area of character determinations, and denying such full hearing on the matter of the validity of determinations as to intellectual and learning qualifications arrived at by examination or testing in accordance with recognized procedures and, therefore, petitioner was not denied due process or equal protection of the law by the lack of a full hearing concerning his failure of the bar examination. In re Pacheco, 1973-NMSC-101, 85 N.M. 600, 514 P.2d 1297.

Right to take bar examination may be denied for lack of good character. — The requirement of former Rule III of the Rules Governing Admission to the Bar of New Mexico, which provided "that the board of bar examiners may decline to permit any such applicant to take the [bar] examination when not satisfied of his good moral character," which in the same or similar language is universal in this country, could not seriously be challenged as unreasonable. Schware v. Board of Bar Exam'rs, 1955-NMSC-081, 60 N.M. 304, 291 P.2d 607, rev'd on other grounds, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957). See now Rules 15-103 and 15-302 NMRA.

Applicant may be required to furnish character affidavit. — Applicant to take the New Mexico bar examination had to be shown to be a person of good moral character before he was eligible to take the bar examination, and requiring him to submit an affidavit of an attorney of New Mexico to that effect did not violate this section. Henington v. State Bd. of Bar Exam’rs, 1956-NMSC-001, 60 N.M. 393, 291 P.2d 1108. See now Rules 15-103 and 15-302 NMRA.

Qualifications required must be connected with fitness to practice. — Petitioner was refused admission to the New Mexico bar examination by the board of bar examiners. He later requested a formal hearing on the denial of his application. At the hearing, the board told him for the first time why it had refused permission. Its reasons were: (1) use of aliases by the applicant; (2) former connection with subversive organizations; and (3) his record of arrests, thus failing to satisfy the board as to the requisite moral character for admission to the bar of New Mexico. He appealed to the New Mexico supreme court; the denial was upheld. However, the United States supreme court reversed, holding that a state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the due process or equal protection clause of the fourteenth amendment. A state can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Schware v. Board of Bar Exam'rs, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796, 64 A.L.R.2d 288 (1957), rev'g 1955-NMSC-081, 60 N.M. 304, 291 P.2d 607.

Activity as attorney may be reviewed. — Respondent's contentions that, in some way, he had been denied procedural and substantive due process of law and equal protection of the law has no validity where the conduct charged against him is wholly and entirely concerned with his activity as an attorney. In re Nelson, 1969-NMSC-012, 79 N.M. 779, 450 P.2d 188.

License fee may be imposed on attorneys. — Enforcement of the former penalty provision of State Bar Act, Laws 1927, ch. 113, § 2 (deleted in 1949), did not deny to an attorney the equal protection of the laws. If power to impose a license fee is conceded, as it must be, then penalty which is designed solely to enforce payment of fee and which may be avoided altogether by payment is not arbitrary or unreasonable. In re Gibson, 1931-NMSC-042, 35 N.M. 550, 4 P.2d 643, abrogated, In re Bristol, 2006-NMSC-041, 140 N.M. 317, 142 P.2d 905.

A license to operate a motor vehicle is a mere privilege and not a property right and is subject to reasonable regulation under the police power in the interest of public safety and welfare. Johnson v. Sanchez, 1960-NMSC-029, 67 N.M. 41, 351 P.2d 449 (and an operator's license may be suspended on showing of habitual recklessness).

There may justly be classification between employer and employee; each may be made a class, and a different rule applied, because there are differences of situation and in the considerations applicable to the various classes. Burch v. Foy, 1957-NMSC-017, 62 N.M. 219, 308 P.2d 199.

Different minimum wages cannot be set for directly competing employers. — The former Wage and Hour Act (Laws 1955, ch. 200) constituted class legislation of the most objectionable kind insofar as it referred to drugstore employees. The classification was arbitrary and oppressive and without any valid reason for its basis. Burch v. Foy, 1957-NMSC-017, 62 N.M. 219, 308 P.2d 199.

Under the provisions of § 3(a)(1) of the former Wage and Hour Act (Laws 1955, ch. 200), the owner of a variety store was required to pay his employees the minimum wage of $.75 per hour. On the other hand, his competitors' employees, because they worked in drugstores, whether they served food and drink for consumption on the premises or not were declared to be "service employees" and needed only be paid $.50 per hour. Thus, the variety store owner's competitors obtained a competitive advantage because they were entitled to pay a lower minimum wage to their employees performing the same functions as in direct competition with the variety store owner's employees. Burch v. Foy, 1957-NMSC-017, 62 N.M. 219, 308 P.2d 199.

Liability of hotelkeeper for theft or negligence may be limited. — A statute limiting liability of a hotelkeeper as to property of guest for theft or negligence of hotelkeeper or his servants, 57-6-1 NMSA 1978, is not unconstitutional under this section, which provides for equal protection of the laws. Weiser v. Albuquerque Oil & Gasoline Co., 1958-NMSC-061, 64 N.M. 137, 325 P.2d 720.

Elections in certain counties as to drive-up windows for alcohol sales. — Subsection F (now G) of 60-7A-1 NMSA 1978, which provides for an election in eligible counties on the question: "Shall a retailer or dispenser be allowed to sell or deliver alcoholic beverages at any time from a drive-up window?" does not violate the equal protection clauses of the federal and state constitutions. Thompson v. McKinley Cnty., 1991-NMSC-076, 112 N.M. 425, 816 P.2d 494.

Sovereign immunity doctrine is justified. — Plaintiff's novel argument that the doctrine of sovereign immunity arbitrarily and unreasonably creates two classes of plaintiffs (one that can be made whole for negligently inflicted injuries and one that cannot) was found to be without merit by the court of appeals, which believed there were substantive differences justifying the special treatment of states and their political subdivisions when carrying on their governmental functions. Dairyland Ins. Co. v. Board of Cnty. Comm'rs, 1975-NMCA-086, 88 N.M. 180, 538 P.2d 1202.

Different limitations may apply to suits against cities, counties and state. — Section 37-1-24 NMSA 1978 does not violate this section, since the fact that cities are limited in their expenditures and that the ability of cities to raise money to meet such expense is restricted, provides a rational basis for limiting the time period in which a suit may be brought against a city to one year, as opposed to a three-year period for suits against the county or state. Espanola Hous. Auth. v. Atencio, 1977-NMSC-074, 90 N.M. 787, 568 P.2d 1233, rev'g 1977-NMCA-073, 90 N.M. 799, 568 P.2d 1245.

Rational basis review of state liability cap. — Because the cap on tort recoveries against the state, provided in 41-4-19 NMSA 1978, affects economic interests, not fundamental rights, the appropriate level of constitutional scrutiny in an equal protection challenge is rational basis review, not the intermediate scrutiny necessary for statutes affecting fundamental rights. Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305, overruling 1995-NMSC-027, 119 N.M. 602, 893 P.2d 1006.

Rational basis review of home rule charter under Municipal Charter Act and home rule amendment. — Where petitioner sought to have the San Miguel county commission appoint a charter commission providing for "home rule" government of the county, and where petitioner argued that the inclusion of Los Alamos county, and the failure to include San Miguel county, in the term "municipality" under the home rule amendment and the Municipal Charter Act would infringe on petitioner’s right to local self-government in a manner that violates equal protection; court of appeals held that there is no fundamental right that is violated by a statutory and constitutional scheme that allows the residents of Los Alamos county to engage in county-based home rule while residents of other counties cannot; it is a rational policy choice for the legislature and the people of New Mexico to treat Los Alamos county differently from other counties on the basis of its size and its unique history and characteristics; under rational basis review, the legislative scheme challenged by petitioner does not violate equal protection guarantees. Einer v. Rivera, 2015-NMCA-045, cert. denied, 2015-NMCERT-003.

Limitations on governmental tort liability. — The New Mexico constitution's guarantee of access to the courts is not a guarantee of unlimited governmental tort liability. Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305, overruling 1995-NMSC-027, 119 N.M. 602, 893 P.2d 1006.

Intermediate scrutiny of cap on tort damages. — A tort victim's interest in full recovery of damages calls for a form of scrutiny somewhere between minimum rationality and strict scrutiny. Therefore, intermediate scrutiny should be applied to determine the constitutionality of the cap on damages in Subsection A(2) of 41-4-19 NMSA 1978 of the Tort Claims Act. Trujillo v. City of Albuquerque, 1990-NMSC-083, 110 N.M. 621, 798 P.2d 571.

Protection of utility interests. — The preference in 62-9-1 NMSA 1978 indicated by its protection of mutual domestic water consumer associations from invasion by a regulated utility but not from an unregulated utility does not lack a rational basis, and an argument that it unconstitutionally discriminates against the invaded utility solely on the basis of the status of the invader was without merit. Morningstar Water Users Ass'n v. New Mexico Pub. Util. Comm'n, 1995-NMSC-062, 120 N.M. 579, 904 P.2d 28.

Telephone order standard. — State corporation commission's (now public regulation commission's) order to a telephone local exchange carrier imposing a state-wide standard of zero primary orders held over 30 days did not violate equal protection under the federal or state constitutions. U.S. West Communications, Inc. v. New Mexico SCC, 1997-NMSC-031, 123 N.M. 554, 943 P.2d 1007.

Conservation laws may not deprive property owners of constitutional rights. — The legislature may provide by law for the conservation of game animals and birds, but only so long as such laws do not deny to one having rights in privately owned land the due process or equal protection of the laws that the constitution guarantees to all persons. Allen v. McClellan, 1965-NMSC-094, 75 N.M. 400, 405 P.2d 405.

The state game commission may not create a game refuge or migratory bird resting ground on private land without consent, or without acquiring the necessary interest in the land by eminent domain or in such other manner as is authorized by law. Were it otherwise, the owner would be deprived of the right, enjoyed by others in the vicinity but outside the refuge, to hunt game on his own property and thereby be in violation of the due process and equal protection clauses of the constitution. Allen v. McClellan, 1965-NMSC-094, 75 N.M. 400, 405 P.2d 405.

The classification imposed by the guest statute is unreasonable and arbitrary and does not rest upon some ground of difference having a fair and substantial relation to either of the objects of the legislation; as between those who are denied and those who are permitted recovery for negligently inflicted injuries, the classifications do not bear a substantial and rational relation to the statute's purposes of protecting the hospitality of the host driver and of preventing collusive lawsuits, and therefore the New Mexico guest statute is unconstitutional and void as a denial of equal protection of the law under U.S. Const., amend. XIV, and this section. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238 (applicable to pending and future cases); see Laws 1935, ch. 15, §§ 1 and 2, compiled as 64-24-1 and 64-24-2, 1953 Comp., and recompiled by Laws 1978, ch. 35, §§ 275, as 64-5-102 and 64-5-103, 1953 Comp., all omitted from NMSA 1978.

No matter how laudable the state's interest in promoting hospitality, the former guest statute was irrational in allowing the host to abandon ordinary care and in denying to nonpaying guests the common-law remedy for negligently inflicting injury. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

The protection of hospitality rationale which asserts that the classification scheme merely provides a higher standard of care for those who pay than for those who do not has been recognized by the courts in the case of common carriers, but cannot reasonably be applied to guests in passenger cars since there is no principle in our general legal scheme which dictates that one must pay for the right of protection from negligently inflicted injury. The classification fails not because it draws some distinction between paying and nonpaying guests, but because it penalizes nonpaying guests by depriving them completely of protection from ordinary negligence. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

The "prevention of collusion" premise is unquestionably a legitimate state interest; however, compensation is not the distinguishing factor between collusive and noncollusive lawsuits, and the former guest statute was an impermissible means to achieve the prevention of collusion. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

The prevention of collusion rationale was insufficient to support the former guest statute: it is unreasonable and arbitrary, and thus unconstitutional, to do away with negligence actions for an entire class of persons solely because some undefined portion of the class may instigate fraudulent lawsuits. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

In terms of preventing collusion the former guest statute was both overinclusive and underinclusive: overinclusive in that it eliminated lawsuits between relatives and close friends even though collusion was absent, along with causes of action where no reasonable likelihood of collusion existed (i.e., those between driver and hitchhiker), and underinclusive in that it permits negligence suits by many who had no less reason to collude than those barred from suing. McGeehan v. Bunch, 1975-NMSC-055, 88 N.M. 308, 540 P.2d 238.

Wrongful death statute classifications are reasonable. — Guarantee of equal protection of the laws does not deny to legislature the right to classify along reasonable lines; the wrongful death statute (41-2-1 to 41-2-4 NMSA 1978) does not violate this section. De Soto Motor Corp. v. Stewart, 62 F.2d 914 (10th Cir. 1932) (decided when statute provided for fixed amount of damages from carriers).

Where wrongful death statute limits recovery against an individual or business corporation to such damages as are fair and just, its constitutional rights are not violated because another section of the statute, dealing with another class, common carriers, provides that a fixed sum shall be paid in case of negligent death. De Soto Motor Corp. v. Stewart, 62 F.2d 914 (10th Cir. 1932).

Favoring nonresidents denies residents equal protection. — Discrimination favorable to nonresidents deprives residents of state of equal protection of the laws where distinction does not rest upon some real and substantial basis, and distinction in Laws 1939, ch. 236, § 1001(d) limiting importation of alcoholic liquor by residents was arbitrary and unreasonable. State v. Martinez, 1944-NMSC-032, 48 N.M. 232, 149 P.2d 124, 155 A.L.R. 811.

Automobiles may be distinguished from other vehicles. — The objection that a statute like Laws 1912, ch. 28 (repealed), providing for state automobile licenses, is a special law, because it legislates only upon automobiles and does not attempt to legislate upon all vehicles using the public highways has been rejected; such an act applies to and affects alike all members of a class and is therefore a general and not a special law. State v. Ingalls, 1913-NMSC-068, 18 N.M. 211, 135 P. 1177.

Nonresident motor vehicle owners or operators are one indivisible class. — Nonresident owners or operators of motor vehicles constitute a general class, and a statute which divides such class within itself by imposing a license fee on those gainfully employed and exempting those who are not is discriminatory and invalid. State v. Pate, 1943-NMSC-007, 47 N.M. 182, 138 P.2d 1006.

Required use of passenger restraint device does not violate equal protection provisions. — Section 66-7-373B, (now A) NMSA 1978 which provides that failure to be secured by a child passenger restraint device or by a safety belt as required by the Safety Belt Use Act shall not in any instance constitute fault or negligence and shall not limit or apportion damages, does not violate the equal protection provisions of the United States and New Mexico constitutions. Armijo v. Atchison, T. & S.F. Ry., 754 F. Supp. 1526 (D.N.M. 1990), rev'd, 19 F.3d 547 (10th Cir. 1994).

Welfare benefits are not constitutionally required. — There is no constitutional requirement that New Mexico provide financial assistance to the needy. The authority for such assistance is statutory. New Mexico has considerable latitude to set its own standard of need and determine the level of benefits by the amount of funds devoted to the program. Padilla v. Health & Social Servs. Dep't, 1972-NMCA-103, 84 N.M. 140, 500 P.2d 425.

Insufficient assistance for shelter does not deny equal protection. — The former health and social services department did not deprive recipient of equal protection of the law in providing financial assistance for shelter in an amount insufficient to cover her unmet need for housing, since there was a rational basis for financial assistance, the amount of which was determined by the conveniences in the dwelling. Padilla v. Health & Social Servs. Dep't, 1972-NMCA-103, 84 N.M. 140, 500 P.2d 425.

Denying credit for rent paid relative does not deny equal protection. — A regulation is not unreasonable and unlawful when it denies a credit for rent actually paid to a relative and does not set up an unreasonable and arbitrary classification based upon no reasonable distinction between relatives and nonrelatives and is thus not discriminatory. Musgrove v. Department of Health & Social Servs., 1972-NMCA-091, 84 N.M. 89, 499 P.2d 1011, cert. denied, 84 N.M. 77, 499 P.2d 999.

Time limitation on benefits to temporarily disabled persons without children does not deny equal protection. — A regulation of the former state health and social services department placing a six-month limitation on general assistance benefits paid to temporarily disabled needy persons with no minor children did not violate state and federal equal protection clauses, since it treated all temporarily disabled and needy persons exactly the same. Equal protection does not require but one classification based solely upon the length of time a temporary disability is suffered, and does not prohibit a single classification related to the availability of funds and a time period less than the entire period of the temporary disability, so long as the classification treats all who fall therein equally. Health & Social Servs. Dep't v. Garcia, 1976-NMSC-003, 88 N.M. 640, 545 P.2d 1018, rev'g 1975-NMCA-090, 88 N.M. 419, 540 P.2d 1308.

Equalization of peremptory challenges unauthorized. — Rule 1-038E NMRA does not authorize an "equalization" of peremptory challenges and does not violate the right to equal protection under the New Mexico or federal constitutions. Gallegos ex rel. Gallegos v. Southwest Cmty. Health Servs., 1994-NMCA-037, 117 N.M. 481, 872 P.2d 899, cert. denied, 118 N.M. 311, 881 P.2d 56.

Constitutional regulations and legislation. — Where the former health and social services department determined that plaintiff 's household was ineligible for food stamps, on the grounds that his "net food stamp income" exceeded the maximum allowable and in computing plaintiff 's income the department took into account certain disability insurance benefits which were being paid by the insurer directly to a finance company with whom plaintiff had two loans in accordance with a department regulation defining income to include payments made on behalf of the household by another, it was held that this regulation, as applied, did not deprive plaintiff of due process of law. Huerta v. Health & Social Servs. Dep't, 1974-NMCA-074, 86 N.M. 480, 525 P.2d 407.

The Horse Racing Act, Chapter 60, Article 1 NMSA 1978 (repealed) [now Chapter 60, Article 1A NMSA 1978], and the regulations issued thereunder allowing suspension of a licensed jockey prior to a hearing provide constitutionally adequate due process of law. State Racing Comm'n v. McManus, 1970-NMSC-134, 82 N.M. 108, 476 P.2d 767.

Laws 1939, ch. 197, denying an unlicensed contractor redress in the courts of the state for the collection of compensation due under contract, did not contravene the due process clause or deny equal protection of law as guaranteed by this section. Fischer v. Rakagis, 1955-NMSC-057, 59 N.M. 463, 286 P.2d 312. See 60-13-30 NMSA 1978.

Laws 1931, ch. 131, § 1 (72-12-1 NMSA 1978), which declares ownership of underground waters to be in the public, does not violate N.M. Const., art. II, §§ 18 and 20, because patents from the United States issued after 1866, and particularly those issued after Desert Land Act of 1877, conveyed no interest in, or right to, the use of surface or underlying water with which lands could be irrigated, except such portions thereof as were used to reclaim the particular land applied for under the act. State ex rel. Bliss v. Dority, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007, appeal dismissed, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951).

Tax upon gasoline and motor fuel, authorized under portion of repealed Municipal Code (Laws 1947, ch. 122) to pay for special street improvement bonds, was not a taking without due process or a denial of equal protection of the laws. Stone v. City of Hobbs, 1950-NMSC-032, 54 N.M. 237, 220 P.2d 704.

Former 2% privilege tax (1937 amendment to 59-26-31 NMSA 1978) from which certain qualified benefit societies were exempted did not violate the due process and equal protection clauses of this section. Sovereign Camp, W.O.W. v. Casados, 21 F. Supp. 989 (D.N.M.), aff'd, 305 U.S. 558, 59 S. Ct. 79, 83 L. Ed. 352 (1938).

The clause of the Workmen's Compensation Act, 52-1-54 NMSA 1978, making provision for allowance of reasonable attorney's fees, is not unconstitutional as repugnant to the due process and equal protection clauses of the federal constitution or this section. New Mexico State Hwy. Dep't v. Bible, 1934-NMSC-025, 38 N.M. 372, 34 P.2d 295.

Laws 1933, ch. 184 (38-3-10 NMSA 1978), as to disqualification of judges, does not deny due process of law or violate this provision. State ex rel. Hannah v. Armijo, 1933-NMSC-087, 38 N.M. 73, 28 P.2d 511.

Sections 73-14-1 to 73-17-24 NMSA 1978, relating to conservancy districts, do not violate the due process clause of this section. Gutierrez v. Middle Rio Grande Conservancy Dist., 1929-NMSC-071, 34 N.M. 346, 282 P. 1, 70 A.L.R. 1261, cert. denied, 280 U.S. 610, 50 S. Ct. 158, 74 L. Ed. 653 (1930).

Laws 1903, ch. 42 (repealed), the Provisional Order Improvement Law for the paving of streets and alleys, as amended, did not violate the due process clause of this section. Hodges v. City of Roswell, 1926-NMSC-016, 31 N.M. 384, 247 P. 310.

Section 36-1-22 NMSA 1978, permitting attorney general and district attorneys to compromise civil actions in which state or county is party, does not violate the due process and equal protection clauses of this section. State v. State Inv. Co., 1925-NMSC-017, 30 N.M. 491, 239 P. 741 (tax suits).

Laws relating to abatement of wasteful artesian wells as nuisances (Laws 1915, §§ 265 to 268) did not violate the due process clause of this section. Eccles v. Ditto, 1917-NMSC-062, 23 N.M. 235, 167 P. 726, 1918B L.R.A. 126; see 72-13-7 NMSA 1978.

Considered together, the pre- and post-termination procedures of the School Personnel Act, 22-10A-27 and 22-10A-28 NMSA 1978, comport with due process requirements. West v. San Jon Bd. of Educ., 2003-NMCA-130, 134 N.M. 498, 79 P.3d 842, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

The ordinance under which a city acted by resolution to authorize a contract for garbage disposal with a sanitation company was a police measure involving the health and welfare of all members of the community and not a violation of due process or equal protection as to persons engaged in the business of hauling garbage. Gomez v. City of Las Vegas, 1956-NMSC-021, 61 N.M. 27, 293 P.2d 984.

Section 40-4-5 C NMSA 1978, establishing for jurisdiction in divorce cases involving the military different residency requirements than for the population in general, was held not violative of this section, as the requirements have a uniform operation throughout the state and they therefore need not affect every individual, every class or every community alike. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

The classification of irrigation ditches made by 73-9-1 NMSA 1978 was not repugnant to fourteenth amendment to United States constitution, nor to this section, as being class legislation. Davy v. McNeill, 1925-NMSC-040, 31 N.M. 7, 240 P. 482.

Establishment of surviving parents as a separate class for purposes of awarding death benefits, apart from that of surviving spouses and dependent children, is not an unconstitutional distinction, nor violative of equal protection of the laws. Gallegos v. Homestake Mining Co., 1982-NMCA-052, 97 N.M. 717, 643 P.2d 281.

The distinction between federal reclamation projects and other areas of water use in 72-9-4 NMSA 1978 is neither unreasonable nor arbitrary and the section does not deny equal protection. City of Raton v. Vermejo Conservancy Dist., 1984-NMSC-037, 101 N.M. 95, 678 P.2d 1170.

The distinction between conservancy districts and other water users in 73-17-21 NMSA 1978 is neither unreasonable nor arbitrary and does not deny equal protection as there is an entire body of law applying to conservancy districts for the purpose of providing and maintaining flood protection, river control, drainage and water storage for irrigation needs and for distribution systems. City of Raton v. Vermejo Conservancy Dist., 1984-NMSC-037, 101 N.M. 95, 678 P.2d 1170.

The operation of off-highway motorcycles is a potentially dangerous activity and the singling out of these vehicles in 66-3-1013 NMSA 1978 is not precluded by the equal protection clause. Vandolsen v. Constructors, Inc., 1984-NMCA-023, 101 N.M. 109, 678 P.2d 1184, cert. denied, 101 N.M. 77, 678 P.2d 705.

Section 60-7A-1 NMSA 1978, regulating the sale of alcoholic beverages and allowing local option districts to prohibit Sunday sales, is a proper exercise of legislative power and does not violate equal protection of the laws under U.S. Const., amend. XIV, § 1 and this section, nor the prohibitions of the furtherance and establishment of religion clause of U.S. Const., amend. I and N.M. Const., art. II, § 11. Pruey v. Department of Alcoholic Beverage Control, 1986-NMSC-018, 104 N.M. 10, 715 P.2d 458.

Village's classification, whereby owners of American pit bull terriers were treated differently than owners of other breeds of dog, was not violative of equal protection. Garcia v. Village of Tijeras, 1988-NMCA-090, 108 N.M. 116, 767 P.2d 355, cert. denied, 107 N.M. 785, 765 P.2d 758.

City ordinance limiting the selling of goods in the city's historic zone to New Mexico residents who were members of the Navajo Nation or of a federally recognized Indian tribe or pueblo violated the equal protection clause, where there was no factual predicate to suggest that the ordinance remedied past discrimination as to licensing in the zone. Tafoya v. City of Albuquerque, 751 F. Supp. 1527 (D.N.M. 1990).

The failure of 41-4-15 NMSA 1978 to provide a tolling provision for persons under a legal disability with claims against governmental entities does not violate the right of a mentally handicapped plaintiff to equal protection of the laws. Jaramillo v. State, 1991-NMCA-008, 111 N.M. 722, 809 P.2d 636, cert. denied, 111 N.M. 416, 806 P.2d 65.

A definition in the regulations of the mining commission that classified mining operations into different categories did not violate the dictates of equal protection. Old Abe Co. v. New Mexico Mining Comm'n, 1995-NMCA-134, 121 N.M. 83, 908 P.2d 776, cert. denied, 120 N.M. 828, 907 P.2d 1009.

The workers' compensation permanent total disability benefit statute, 52-1-25 NMSA 1978, does not violate equal protection under the federal and state constitutions. Valdez v. Wal-Mart Stores, Inc., 1998-NMCA-030, 124 N.M. 655, 954 P.2d 87, cert. denied, 124 N.M. 589, 953 P.2d 1087.

The limitation on attorney fees in 52-1-54(I) NMSA 1978 is rationally related to government interest in maximizing worker's award and minimizing litigation costs and does not violate equal protection or substantive due process. Wagner v. AGW Consultants, 2005-NMSC-016, 137 N.M. 734, 114 P.3d 1050.

The small-business exemption in the Santa Fe minimum wage ordinance does not violate the equal protection guarantee contained in this section. New Mexicans for Free Enter. v. City of Santa Fe, 2006-NMCA-007, 138 N.M. 785, 126 P.3d 1149.

Unconstitutional legislation. — The portion of the 1972 general appropriation act, Laws 1972, ch. 98, § 4 K, providing that no person who was classified as a "nonresident" for tuition purposes upon his initial enrollment in a public institution of higher education in the state could have his status changed to that of a "resident" for tuition purposes unless he had maintained domicile in the state for a period of not less than one year during which entire period he had not been enrolled, for as many as six hours, in any quarter or semester, as a student in any such institution, was unreasonable, arbitrary and violated the due process and equal protection clauses of the fourteenth amendment to the federal constitution and of this section. Robertson v. Regents of Univ. of N.M., 350 F. Supp. 100 (D.N.M. 1972).

Section 40-4-33, 1953 Comp. (repealed), concerning seizure and sale as estrays of calves or colts confined apart from their mothers and of confined freshly branded animals, was, prior to its amendment by Laws 1919, ch. 52, § 1, unconstitutional as authorizing the taking of private property without due process. Lacey v. Lemmons, 1916-NMSC-056, 22 N.M. 54, 159 P. 949, 1917A L.R.A. 1185.

A section of the Fair Trade Act, Laws 1937, ch. 44, § 2 (repealed), was unconstitutional and void as an arbitrary and unreasonable exercise of the police power without any substantial relation to the public health, safety or general welfare insofar as it concerned persons who were not parties to contracts provided for in Laws 1937, ch. 44, § 1 (repealed). Skaggs Drug Center v. General Elec. Co., 1957-NMSC-083, 63 N.M. 215, 315 P.2d 967.

The cap on damages mandated by the Dramshop Act, 41-11-1 NMSA 1978 (alcohol licensee's liability), is constitutionally invalid as violative of the equal protection clause. Richardson v. Carnegie Library Restaurant, Inc., 1988-NMSC-084, 107 N.M. 688, 763 P.2d 1153, overruled by Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305.

County officers as bail bondsmen. — The prohibitions against county officers acting as bail bondsmen in 59A-51-4 and 59A-51-13C NMSA 1978 does satisfy heightened rational-basis scrutiny; thus, that element of the statutes is invalid under the equal protection clause of the New Mexico constitution. Alvarez v. Chavez, 1994-NMCA-133, 118 N.M. 732, 886 P.2d 461, overruled by Trujillo v. City of Albuquerque, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305.

Employment discrimination claim. — The law in New Mexico is unsettled as to whether a claim of discrimination in employment that is asserted under the New Mexico Human Rights Act (Chapter 28, Article 1 NMSA 1978) can also be maintained under the equal protection clause of the New Mexico constitution. Roybal v. City of Albuquerque, 653 F. Supp. 102 (D.N.M. 1986).

Workers' Compensation Act provision requiring use of the American medical association's guide to evaluate impairment is not violative of equal protection since it is rationally related to its purpose and does not result in dissimilar treatment of similarly-situated individuals. Madrid v. St. Joseph Hosp., 1996-NMSC-064, 122 N.M. 524, 928 P.2d 250.

The compensation limits imposed by the Workers' Compensation Act on the duration of disability benefits for a secondary mental impairment violate the equal protection clause. — The Worker's Compensation Act (act), 52-1-1 to 52-1-70 NMSA 1978, creates a class of similarly situated individuals, workers with secondary mental impairments and workers with subsequent physical impairments, but treats them differently, in that the act treats a subsequent physical impairment, whether scheduled or non-scheduled, as a distinct and separate injury from the original physical injury arising out of and in the course of employment, but the act does not treat a secondary mental impairment as a separate and distinct injury from the original physical injury for compensation purposes, but rather tethers the benefits duration to the initial physical injury. Applying intermediate scrutiny to classifications based on mental disabilities, petitioner failed to meet its burden to demonstrate that the disparate treatment occasioned by 52-1-41(C) NMSA 1978 and 52-1-42(A)(4) NMSA 1978 was substantially related to any important governmental interest. Aztec Mun. Schs. v. Cardenas, 2024-NMSC-015, aff'g 2022-NMCA-038, 516 P.3d 169.

The Workers' Compensation Act's disparate limits imposed on the duration of disability benefits for secondary mental impairments and secondary physical impairments violates equal protection guarantees. — Where worker appealed from a workers' compensation judge's order limiting the duration of worker's disability benefits for a secondary mental impairment to 150 weeks for compensation for the primary scheduled injury to worker's knee, claiming that capping the duration of benefits for a secondary mental impairment resulting from a scheduled physical injury, when a secondary physical impairment resulting from a scheduled physical injury is not similarly capped, violates the New Mexico constitution's equal protection guarantee, the provisions set forth in Sections 52-1-41(C) NMSA 1978 and 52-1-42(A)(4) NMSA 1978 of the Workers' Compensation Act violate the equal protection clause of the New Mexico constitution, because workers with secondary mental impairments are similarly situated to workers with secondary physical impairments, the act's limits on the duration of benefits are different for workers with secondary mental impairments than they are for similarly situated workers with secondary physical impairments, and employer has not carried its burden of showing that the act's disparate treatment of mentally impaired workers, a sensitive class, is substantially related to an important government interest. Cardenas v. Aztec Mun. Schs., 2022-NMCA-038, cert. granted.

Constitutionality of farm and ranch laborer exclusion from Workers’ Compensation Act. — Section 52-1-6(A) NMSA 1978, which excludes farm and ranch laborers from the provisions of the Workers’ Compensation Act, violates the guarantee of equal protection where farm and ranch laborers seeking compensation for work-related injuries or disabilities are similarly situated to, but are treated differently than, other workers in the state who are likewise seeking compensation. The government’s purported interests in the efficient administration of workers’ compensation cases and in protecting the agricultural industry from the cost of providing workers’ compensation coverage are without any rational basis and do not justify the arbitrary classification created by the exclusion. Rodriguez v. Brand West Dairy, 2015-NMCA-097, cert. granted, 2015-NMCERT-008, and cert. granted, 2015-NMCERT-008.

Workers' Compensation Act treatment of survivor's wrongful death actions not violative of equal protection. — Barring nondependent survivors of a deceased workman from pursuing a wrongful death action, while permitting nondependent survivors of a tort victim fatally injured outside the course and scope of his employment to bring such an action, is not violative of equal protection because the Workers' Compensation Act (Chapter 52, Article 1 NMSA 1978) provides for expeditious payment to the workman or his dependents without a showing of the employer's fault; it requires, in return, a limitation on the liability of the employer from common-law tort actions. Sanchez v. M.M. Sundt Constr. Co., 1985-NMCA-087, 103 N.M. 294, 706 P.2d 158.

Greater workers' compensation benefits for dependents not unconstitutional. — Setting a different, and more expansive, remedy provision in the Workers' Compensation Act (Chapter 52, Article 1 NMSA 1978) for dependent survivors of a deceased workman than for nondependents, is well within legislative prerogatives and is not violative of equal protection. Sanchez v. M.M. Sundt Constr. Co., 1985-NMCA-087, 103 N.M. 294, 706 P.2d 158.

Statutory limitation on attorney fees. — The statutory limitation on attorney fees that may be awarded in workers' compensation cases does not violate the due process or equal protection guarantees of the federal or state constitutions. Mieras v. Dyncorp, 1996-NMCA-095, 122 N.M. 401, 925 P.2d 518, cert. denied, 122 N.M. 279, 923 P.2d 1164.

Serious youthful offenders convicted of first-degree, felony murder are not similarly situated to youthful offenders convicted of second-degree murder. — Where defendant was charged and convicted of three counts of first-degree, felony murder and conspiracy to commit aggravated burglary, based on evidence that defendant, who was sixteen years old at the time, killed three members of a family with a pickaxe after he and two co-conspirators planned to burglarize the family in order to get money, and where, prior to sentencing, defendant filed a motion arguing that the constitutional guarantee of equal protection requires an amendability hearing in conjunction with the court's sentencing because amendability hearings are available to youthful offenders who commit second-degree murder but not to serious youthful offenders who commit first degree, felony murder, defendant's equal protection rights were not violated because an equal protection claim cannot be sustained by simply identifying disparate treatment of juvenile offenders, but can only be mandated if those juvenile offenders are similarly situated. An individual who is convicted of first-degree, felony murder is not situated similarly to an individual convicted of second-degree murder. Further, the legislature has legitimate reasons for distinguishing a serious youthful offender who commits first-degree, felony murder from one who commits second-degree murder because first-degree, felony murder is not equivalent to second-degree murder. State v. Ortiz, 2021-NMSC-029.

Compulsory school attendance law must bear rational relation to legitimate state interest. — In the application of equal protection principles, the standard for reviewing the compulsory school attendance law is whether it bears some rational relation to a legitimate state interest. State v. Edgington, 1983-NMCA-036, 99 N.M. 715, 663 P.2d 374, cert. denied, 99 N.M. 644, 662 P.2d 645, cert. denied, 464 U.S. 940, 104 S. Ct. 354, 78 L. Ed. 2d 318 (1983).

State may constitutionally prohibit home instruction by parent, guardian or custodian. — The exclusion of home instruction by a parent, guardian or custodian of a child from satisfying the requirements of the compulsory school attendance law does not violate equal protection as guaranteed in the United States and New Mexico constitutions. State v. Edgington, 1983-NMCA-036, 99 N.M. 715, 663 P.2d 374, cert. denied, 99 N.M. 644, 662 P.2d 645, cert. denied, 464 U.S. 940, 104 S. Ct. 354, 78 L. Ed. 2d 318 (1983).

Immunity of public defenders from malpractice claims. — Public defenders, whether regular employees of the public defender's office or performing as contractors, are immune from malpractice claims, and statutes providing such immunity did not violate the equal protection rights of a represented defendant. Coyazo v. State, 1995-NMCA-056, 120 N.M. 47, 897 P.2d 234.

C. TAXATION.

Tax on resident vendor without tax on importations by nonresident is constitutional. — The failure of the legislature to protect resident vendor against the unfair competitions of importations into New Mexico, without the payment of a sales tax, of chemical reagents did not offend the equal protection clause of the constitution of either the United States or of New Mexico so as to invalidate the former school tax against him. Edmunds v. Bureau of Revenue, 1958-NMSC-112, 64 N.M. 454, 330 P.2d 131.

The legislature possesses great freedom in classification for tax purposes. Property Appraisal Dep't v. Ransom, 1973-NMCA-015, 84 N.M. 637, 506 P.2d 794 (distinction for tax assessment between subdivided and unsubdivided agricultural land upheld).

In the exercise of its taxing power the state may select its subjects of taxation, and so long as the tax is equal and uniform on all subjects of a class and the classifications for taxation are reasonable, such legislation does not offend the state or federal constitutions. Rust Tractor Co. v. Bureau of Revenue, 1970-NMCA-107, 82 N.M. 82, 475 P.2d 779, cert. denied, 82 N.M. 81, 475 P.2d 778.

Power of legislature to classify for purposes of taxation and to impose tax in question must be conceded if any reasonable or sound basis can be found to sustain it. Sovereign Camp, W.O.W. v. Casados, 21 F. Supp. 989 (D.N.M.), aff'd, 305 U.S. 558, 59 S. Ct. 79, 83 L. Ed. 352 (1938).

Including exemptions. — Inequalities which result from a singling out of one particular class for taxation or exemption infringe no constitutional limitation. Dikewood Corp. v. Bureau of Revenue, 1964-NMSC-057, 74 N.M. 75, 390 P.2d 661.

Former act providing exemption for sales of tangible personal property to United States government but not for sales of services did not violate equal protection clause of this section. Dikewood Corp. v. Bureau of Revenue, 1964-NMSC-057, 74 N.M. 75, 390 P.2d 661.

Every conceivable basis for tax classification must be negatived for successful attack. — In the field of taxation, more than in other fields, the legislature possesses the greatest freedom in classification, and to attack such a classification places the burden on the one attacking to negative every conceivable basis which might support the classification, and unless the classification is clearly arbitrary and capricious or void for uncertainty, the appellate court cannot substitute its views in selecting and classifying for those of the legislature. New Mexico Newspapers, Inc. v. Bureau of Revenue, 1971-NMCA-022, 82 N.M. 436, 483 P.2d 317; Rust Tractor Co. v. Bureau of Revenue, 1970-NMCA-107, 82 N.M. 82, 475 P.2d 779cert. denied, 82 N.M. 81, 475 P.2d 778.

In considering the equal protection issue it must be recognized that the legislature possesses great freedom in classifications in the tax field, and the taxpayer has the burden of negating every conceivable basis which might support the classification; unless the classification is clearly arbitrary and capricious, it cannot be held unconstitutional. Halliburton Co. v. Property Appraisal Dep't, 1975-NMCA-123, 88 N.M. 476, 542 P.2d 56.

Violations of constitutional uniform taxation requirements frequently result in violations of equal protection clauses. Ernest W. Hahn, Inc. v. County Assessor, 1978-NMSC-094, 92 N.M. 609, 592 P.2d 965.

Lease limitation exemption. — Constitutional guarantees of equal protection and uniform taxation are not violated by the provision of 7-36-4 NMSA 1978 for a 75-year limitation on leases qualifying for exemption. Welch v. Sandoval Cnty. Valuation Protests Bd., 1997-NMCA-086, 123 N.M. 722, 945 P.2d 452, cert. denied, 123 NM. 627, 944 P.2d 275.

Taxpayer must show that taxing statute patently arbitrary and capricious or void for uncertainty in order to defeat the statute on constitutional grounds. C & D Trailer Sales v. Taxation & Revenue Dep't, 1979-NMCA-151, 93 N.M. 697, 604 P.2d 835.

Taxation of percentage of income. — New Mexico was not taxing an out-of-state activity where it included gain from the cutting of timber treated by the taxpayer as a sale or exchange for federal tax purposes, under the election offered by 26 U.S.C. § 631, in the apportionable business income of the corporation; the tax was not levied on the particular business activity of the taxpayer carried on within the borders of the taxing state, but on a percentage of the taxpayer's business income from all its business activity, and the taxation was not beyond the state's taxing authority; unrealized gain can be included in "net income" for state tax purposes. Champion Int'l Corp. v. Bureau of Revenue, 1975-NMCA-106, 88 N.M. 411, 540 P.2d 1300.

Reasonable classifications in imposing privilege or excise taxes are permissible. — Reasonable classifications allowing the imposition of privilege taxes by the legislature does not deny equal protection or due process. Sunset Package Store, Inc. v. City of Carlsbad, 1968-NMSC-105, 79 N.M. 260, 442 P.2d 572 (municipal license tax on sellers of alcoholic liquors).

It is for the legislature to adopt classifications for the imposition of excise taxes as it may deem proper, and any reasonable classification cannot be held to deny equal protection or due process. Edmunds v. Bureau of Revenue, 1958-NMSC-112, 64 N.M. 454, 330 P.2d 131.

There is a substantial difference between those classes of persons who acquire title and ownership of property and those who acquire only the interest of a bailee under a lease agreement, and such a classification is not arbitrary or capricious and does not warrant the conclusion that the legislation is subject to constitutional objection. Rust Tractor Co. v. Bureau of Revenue, 1970-NMCA-107, 82 N.M. 82, 475 P.2d 779 (gross receipts and compensating taxes), cert. denied, 82 N.M. 81, 475 P.2d 778.

A classification of commodities, businesses or occupations for excise tax purposes, under which the classes are taxed at unequal rates or one class is taxed and another is exempted, will be upheld as constitutional if it is neither arbitrary nor capricious and rests upon some reasonable basis of difference or policy. Beatty v. City of Santa Fe, 1953-NMSC-110, 57 N.M. 759, 263 P.2d 697.

Tobacco taxes are valid. — In almost every case in which the question has arisen the courts have sustained the validity of statutes or ordinances imposing a tax on cigars, cigarettes and other forms of tobacco, as against objections based on violation of the rule requiring uniformity of taxation or constitutional provisions guaranteeing equal protection of the law. Beatty v. City of Santa Fe, 1953-NMSC-110, 57 N.M. 759, 263 P.2d 697.

Taxes on gasoline sales by both city and state are constitutional. — Former Municipal Code sections (Laws 1931, ch. 159) authorizing municipalities to levy tax on gasoline sales in addition to the state excise tax were not obnoxious to due process or equal protection or any other provision of the constitution as double taxation. Continental Oil Co. v. City of Santa Fe, 1932-NMSC-064, 36 N.M. 343, 15 P.2d 667.

Gross receipts tax on sale of mobile homes constitutional. C & D Trailer Sales v. Taxation & Revenue Dep't, 1979-NMCA-151, 93 N.M. 697, 604 P.2d 835.

Gross receipts tax on franchise fees constitutional. — The imposition of gross receipts tax on franchise fees received from this state's dealers does not violate the due process clause or commerce clause and is proper where the franchisor is in the business of selling franchises, developing and marketing parts, receiving its primary source of income from the sale of franchises, collecting a percentage of the franchisee's gross receipts as a lease payment for use of the trademark and trade name and where its leased trademarks and trade names and their businesses are protected by the laws of this state; thus, franchisor is engaged in business in this state. AAMCO Transmissions v. Taxation & Revenue Dep't, 1979-NMCA-092, 93 N.M. 389, 600 P.2d 841, cert. denied, 93 N.M. 205, 598 P.2d 1165, superseded by statute, Sonic Industries, Inc. v. State, 2000-NMCA-087, 129 N.M. 657, 11 P.3d 1219.

Different tax treatment cannot be based on reporting values to different offices. — A classification based solely on the use of machinery and equipment in more than one county is patently unreasonable, and cannot be defended on the basis of assessment procedures; administrative convenience in arriving at a valuation of the property involved does not show a rational basis for taxing inventories of contractors who report value to the property appraisal department rather than to the county assessor; the fact that taxpayers may reasonably be required to report their property values to different government offices because of differences in geographic operations does not provide a reasonable basis for a difference in tax treatment on the values reported. Halliburton Co. v. Property Appraisal Dep't, 1975-NMCA-123, 88 N.M. 476, 542 P.2d 56.

Where the effect of former 7-36-9 NMSA 1978 and former 72-6-4, 1953 Comp. (predecessor of 7-36-2 NMSA 1978), was that contractors whose machinery and equipment was used in more than one county were subject to property tax on sales inventories, and contractors whose machinery and equipment was not used in more than one county were not subject to property tax on sales inventories, it was held that this difference in tax treatment based solely on whether a contractor uses his equipment in more than one county was arbitrary and resulted in a denial of equal protection of the law, and therefore to the extent that valuation by the former property appraisal department deprived the taxpayer of the exemption in former 7-36-9 NMSA 1978, that statute was unconstitutional. Halliburton Co. v. Property Appraisal Dep't, 1975-NMCA-123, 88 N.M. 476, 542 P.2d 56.

Factors in determining discrimination in property revaluation plan. — In determining whether a property revaluation plan constitutes intentional and arbitrary discrimination in violation of N.M. Const., art. VIII, § 1 and this section, all relevant circumstances should be taken into consideration. Such factors should include, but not be limited to, the resources realistically available to the assessing authority, the time limitations involved in the plan, the availability of other alternatives and the amount of temporary inequalities in valuations which result from the cyclical implementation of the plan. Ernest W. Hahn, Inc. v. County Assessor, 1978-NMSC-094, 92 N.M. 609, 592 P.2d 965.

Taxpayer must not be subjected to discrimination in imposition of property tax burden which results from systematic, arbitrary or intentional revaluation of some property at a figure greatly in excess of the undervaluation of other like properties. Ernest W. Hahn, Inc. v. County Assessor, 1978-NMSC-094, 92 N.M. 609, 592 P.2d 965.

Inequality in yearly reappraisals of property unconstitutional. — Singling out one or a few taxpayers for reappraisals for several years in succession while virtually all other owners of comparable properties do not undergo a single reappraisal in the same period is an inequality that is neither temporary nor constitutional. Ernest W. Hahn, Inc. v. County Assessor, 1978-NMSC-094, 92 N.M. 609, 592 P.2d 965.

Temporary inequalities constitutional. — Temporary inequalities which result from the practicalities of carrying out a county-wide systematic and definite property appraisal program are inevitable and constitutional. Dale Bellamah Land Co. v. County of Bernalillo, 1978-NMSC-095, 92 N.M. 615, 592 P.2d 971.

Assessment based on invalid automatic carry-over, unconstitutional. — Where a taxpayer's 1975 assessment is not based on any new reappraisal, but is the result of an automatic carry-over of a 1974 assessment which was constitutionally invalid, the 1975 assessment is unconstitutional. Dale Bellamah Land Co. v. County of Bernalillo, 1978-NMSC-095, 92 N.M. 615, 592 P.2d 971.

There is a substantial difference between underground and open-pit mines sufficient to support a distinction between them for tax purposes. Anaconda Co. v. Property Tax Dep't, 1979-NMCA-158, 94 N.M. 202, 608 P.2d 514, cert. denied, 94 N.M. 628, 614 P.2d 545.

Exemption based on time of residence. — Section 7-37-5C(3)(e) NMSA 1978 violates equal protection by limiting a tax exemption to those Vietnam veterans who resided in the state before May 8, 1976. Hooper v. Bernalillo County Assessor, 472 U.S. 612, 105 S. Ct. 2862, 86 L. Ed. 2d 487 (1985), rev'g 1984-NMCA-027, 101 N.M. 172, 679 P.2d 840 (decided prior to 1986 amendment of 7-37-5 NMSA 1978, which eliminated residency requirement).

D. CRIMINAL CASES.

Requiring interlock devices for driving while under the influence of drugs. — Subsection N of 66-8-102 NMSA 1978, mandating installation of an interlock device on vehicles driven by persons convicted of driving while intoxicated does not violate the equal protection clause of the United States and New Mexico constitutions as applied to DWI offenders whose impairment is not caused by alcohol, but by drugs. State v. Valdez, 2013-NMCA-016, 293 P.3d 909, cert. denied, 2012-NMCERT-012, 299 P.3d 422-423.

Where defendant pled guilty to a first time offense of driving while intoxicated; the results of blood tests showed the presence of prescription drugs, but no alcohol, in defendant’s system; and the district court ordered defendant to install in defendant’s vehicle an ignition interlock device, which detected only alcohol, not drugs, the district court’s order did not violate equal protection. State v. Valdez, 2013-NMCA-016, 293 P.3d 909, cert. denied, 2012-NMCERT-012, 299 P.3d 422-423.

Making cattle rustling a felony regardless of value is constitutional. — The portion of larceny statute, 30-16-1 NMSA 1978, which made it a felony to steal livestock regardless of its value, applied to all persons who steal livestock in the state of New Mexico and did not constitute special legislation contrary to N.M. Const., art. IV, § 24, nor did it deny defendant equal protection under the law. State v. Pacheco, 1969-NMCA-127, 81 N.M. 97, 463 P.2d 521.

Statute proscribing child abuse does not deny equal protection simply because it makes a distinction between those persons who batter a child and those persons who batter an adult, since children, who are oftentimes defenseless, are in need of greater protection than adults, and a stricter penalty is one means of attaining this greater degree of protection. State v. Lucero, 1975-NMCA-007, 87 N.M. 242, 531 P.2d 1215, cert. denied, 87 N.M. 239, 531 P.2d 1212. See 30-6-1 NMSA 1978.

Statute penalizing failure to support dependent. — Section 30-6-2 NMSA 1978 does not violate equal protection because the statute does not provide that public welfare benefits must be sought or because the statute applies only to those persons who leave minor children dependent on public support, as the partial correction of the social evil has a rational relation to the object of the legislation. State v. Villalpando, 1974-NMCA-020, 86 N.M. 193, 521 P.2d 1034, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Credit card fraud statute. — Section 30-16-32 NMSA 1978 is directed to the prevention of fraud in connection with credit cards, sales slips or agreements and applies when a person, with the requisite intent, signs a name other than his own or the name of a fictitious person. Thus, defendant's argument that the statute denies to defendant and others in his class the equal protection of the laws because the class of people who use the credit card of another with the same name as theirs, and sign that name, which is both theirs and the cardholder's, are exempt from prosecution under the statute, since they are not signing "the name of another," is without merit. State v. Sweat, 1972-NMCA-162, 84 N.M. 416, 504 P.2d 24.

Statute as to harboring or aiding felon. — The exemptions from the application of 30-22-4 NMSA 1978, as to harboring or aiding a felon, of certain named groups of persons on the basis of relationship to the felon are reasonable classifications and do not violate the equal protection clauses of the New Mexico and United States constitutions. State v. Lucero, 1975-NMSC-061, 88 N.M. 441, 541 P.2d 430.

Failure of Controlled Substances Act to say when marijuana must be weighed. — The fact that Controlled Substances Act (Chapter 30, Article 31 NMSA 1978) did not specifically state when weighing of marijuana was to be done did not mean that 30-31-23 B(3) NMSA 1978, as applied to defendant convicted of possession of more than eight ounces of "green" marijuana, was a violation of his rights to equal protection, since it was the possession of marijuana on the date of the offense which was the prohibited act and not the amount in some subsequent form suitable to a particular defendant. State v. Olive, 1973-NMCA-131, 85 N.M. 664, 515 P.2d 668, cert. denied, 85 N.M. 639, 515 P.2d 643.

Implied consent to sobriety test is constitutional. — The Implied Consent Act (66-8-105 to 66-8-112 NMSA 1978), framed upon the premise that when a person obtains a license to operate a motor vehicle, he impliedly consents to the sobriety test, violates neither due process nor equal protection. Commissioner of Motor Vehicles v. McCain, 1973-NMSC-023, 84 N.M. 657, 506 P.2d 1204.

Slight delay does not deny equal protection. — Some personal discomfort, occasioned by being jailed for a few hours awaiting preliminary examination, does not constitute a denial of due process or equal protection, nor can it be said to constitute cruel and unusual punishment. Christie v. Ninth Judicial Dist., 1967-NMSC-236, 78 N.M. 469, 432 P.2d 825.

Failure to apply rules retroactively as to dismissal for delay. — Where a prior mistrial was declared, the case was reset for trial, but in the interim the New Mexico supreme court and legislature adopted rules and statutes providing for dismissal of indictments in certain unduly delayed trials, and the state declined to hold these provisions retroactive, the failure to apply these new rules retroactively was not a denial of equal protection. New Mexico v. Torres, 461 F.2d 342 (10th Cir. 1972).

In criminal trials a state cannot discriminate against a defendant on account of his poverty. Such discrimination would be a denial of equal protection of the law. State v. Apodaca, 1969-NMCA-038, 80 N.M. 244, 453 P.2d 764.

State must provide free transcript to indigent. — If the defendant is indigent, the state may not deny him a free transcript of the testimony at a preliminary hearing. State v. Apodaca, 1969-NMCA-038, 80 N.M. 244, 453 P.2d 764.

When transcript is necessary for effective defense or appeal. — The state must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. There can be no doubt that the state must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. Two factors that are relevant to the determination of need are: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought and (2) the availability of alternative devices that would fulfill the same functions as a transcript. This rule should be construed liberally in favor of a defendant's right to equal protection of the law and effective cross-examination. State v. Romero, 1975-NMCA-017, 87 N.M. 279, 532 P.2d 208.

Where defendant's basic defense was to persuade the jury that certain statements relied on heavily by the state were involuntary, and that the officer who testified about the circumstances of these statements testified differently at trial than at the suppression hearing, a copy of the prior hearing transcript would have been invaluable, and where there were different judges, court reporters and attorneys in the hearing on the motion to suppress, on the motion for a transcript and at trial there were no reasonable alternatives to a transcript of the prior hearing. State v. Romero, 1975-NMCA-017, 87 N.M. 279, 532 P.2d 208.

Limitation upon appointed counsel's fee is constitutional. — Defendant's argument that the statutory attorney fee limitation of $400 in defense of indigent criminal cases (31-16-8 NMSA 1978) was a denial of equal protection and due process was without merit where there was no claim that the defendant was poorly represented, nor were there any facts indicating how the statutory fee limitation so deprived the defendant. State v. Silver, 1971-NMCA-112, 83 N.M. 1, 487 P.2d 910.

Waiving jury trial by voluntary guilty plea does not deny rights. — Where the record showed that defendant acknowledged his guilt and the trial court accepted his guilty plea, the court held defendant had waived his right to a jury trial and the execution of that waiver did not deny defendant due process or equal protection. State v. Brill, 1970-NMCA-093, 81 N.M. 785, 474 P.2d 77, cert. denied, 81 N.M. 784, 474 P.2d 76.

State may not have choice of which statute to prosecute under. — Where two statutes condemn certain conduct, the state does not have a choice in selecting the statute to be employed in a prosecution for violation. That view would permit the law enforcement authorities to subject one person to the possibility of a greater punishment than another who has committed an identical act and would do violence to the equal protection clauses of the state and federal constitutions. State v. Chavez, 1966-NMSC-217, 77 N.M. 79, 419 P.2d 456.

Last amended penalty provision will control if two condemn same act. — Where two statutes condemn the same act, they are in pari materia. If the penalty provisions are different, they are irreconcilable, but if the legislature has amended one of the penalty provisions and not amended the other penalty provision, it impliedly intended that its last expression would control. Accordingly, the prosecution is properly conducted under the amended statute. State v. Chavez, 1966-NMSC-217, 77 N.M. 79, 419 P.2d 456.

Where both penalty provisions are amended, special statute will be operative. State v. Riley, 1970-NMCA-126, 82 N.M. 235, 478 P.2d 563.

Defendant must be charged under special statute. — Where two statutes condemn the same offense and one is a special statute and one is a general statute, the accused should be charged under the general statute. State v. Riley, 1970-NMCA-126, 82 N.M. 235, 478 P.2d 563.

Prosecution under special, not general, statute does not deny equal protection. — Defendant's contention that he was denied equal protection because at time of conviction there existed two separate penalty provisions for possession of LSD, one constituting a felony, the other constituting a misdemeanor, thus giving the opportunity to enforce the laws without uniformity, was without merit, as one provision included "hallucinogenic drugs" but did not specifically define LSD as such, while the other section, under which defendant was charged, specifically proscribed the possession of LSD, and where there are two laws covering the same act, one being general and the other being specific, it is not a denial of equal protection to prosecute defendant under the special statute (since repealed). Campion v. State, 1972-NMCA-111, 84 N.M. 137, 500 P.2d 422.

Alleged discriminatory use of peremptory challenges. — Although the defendant established a prima facie case of discrimination involving the state's use of one of its peremptory challenges against the only black juror on the panel, the state rebutted the prima facie case by providing a racially-neutral explanation for its challenge. The juror had previously been on a jury that had failed to reach a verdict. State v. Goode, 1988-NMCA-044, 107 N.M. 298, 756 P.2d 578, cert. denied, 107 N.M. 308, 756 P.2d 1203.

The prosecution's peremptory challenge to remove the only black juror who could have served on the jury panel based on the prospective juror's failure to make eye contact and lack of assertiveness was not shown to be purposeful discrimination or to be unsupported by substantial evidence. State v. Jones, 1996-NMCA-020, 121 N.M. 383, 911 P.2d 891, aff'd, 1997-NMSC-016, 123 N.M. 73, 934 P.2d 267.

Disallowance of juries in metropolitan court for petty criminal offenses. — Because of the legislature's requirement that magistrate judges in metropolitan court be attorneys and magistrates elsewhere throughout the state need not meet that qualification, the disallowance of juries in metropolitan court for petty criminal offenses is not arbitrary, unreasonable nor unrelated to a legitimate legislative purpose. Meyer v. Jones, 1988-NMSC-011, 106 N.M. 708, 749 P.2d 93.

Guilty but mentally ill verdicts. — New Mexico statutory provisions authorizing a verdict of guilty but mentally ill do not impinge upon a defendant's right to a fair trial and do not violate the equal protection clauses of the United States and New Mexico constitutions. State v. Neely, 1991-NMSC-087, 112 N.M. 702, 819 P.2d 249.

Lack of good-time credit for presentence confinement constitutional. — New Mexico's statutory scheme, which does not allow good-time credit for presentence confinement, does not offend the equal protection and due process guarantees of the New Mexico and United States constitutions. Enright v. State, 1986-NMSC-070, 104 N.M. 672, 726 P.2d 349.

Failure to give retroactive effect to presentence confinement credit statute. — Failure to give 31-20-12 NMSA 1978, allowing credit for presentence confinement, retroactive effect did not violate the equal protection provisions of the state and federal constitutions. State v. Dalrymple, 1968-NMCA-083, 79 N.M. 670, 448 P.2d 182.

State's good time credit statutory scheme does not offend the constitutional guarantee of equal protection of the law; it is reasonable not to award good time credits for presentence confinement to detainees who are presumed innocent and therefore are not yet subject to rehabilitation efforts or to compulsory labor requirements, especially when they are held without systematic evaluation in county jails lacking rehabilitation programs. State v. Aqui, 1986-NMSC-048, 104 N.M. 345, 721 P.2d 771, cert. denied, 479 U.S. 917, 107 S. Ct. 321, 93 L. Ed. 2d 294 (1988).

Failure to give credit for the time served under a void sentence when the defendant is retried and convicted and given a new sentence does not violate the equal protection clause of the New Mexico and United States constitutions. New Mexico allows credit for time served where the trial itself is valid, but the sentence alone is erroneous, but refuses credit where the trial itself is constitutionally defective, although the sentence is correct. Newman v. Rodriguez, 375 F.2d 712 (10th Cir. 1967).

Defendant may not be imprisoned solely for inability to pay costs. — A defendant may not be imprisoned beyond the maximum statutory sentence because of his inability to pay the costs assessed against him, as to do such would deprive defendant of equal protection of the law. State v. Chavez, 1974-NMCA-021, 86 N.M. 199, 521 P.2d 1040, cert. denied, 86 N.M. 189, 521 P.2d 1030.

Nonuniformity in sentencing is not deprivation of equal protection. — Lack of uniformity in enforcement of the law does not excuse a particular defendant's violation of the law and does not deprive a particular defendant of equal protection of the law. Campion v. State, 1972-NMCA-111, 84 N.M. 137, 500 P.2d 422; State v. Lujan, 1968-NMCA-079, 79 N.M. 525, 445 P.2d 749.

Defendant was not denied equal protection of the law because he received a sentence while others, similarly situated, did not. Campion v. State, 1972-NMCA-111, 84 N.M. 137, 500 P.2d 422.

Defendant was not denied equal protection of the law because he received an enhanced sentence as an habitual offender while others, similarly situated, did not. State v. Lujan, 1968-NMCA-079, 79 N.M. 525, 445 P.2d 749.

Nonuniformity in time served under same indeterminate sentence. — The fact that another prisoner may serve less, or more, time under the same indeterminate sentence does not violate equal protection, because this constitutional provision does not require identical punishments and does not protect defendant from the consequences of his crime. State v. Deats, 1971-NMCA-136, 83 N.M. 154, 489 P.2d 662.

Repeated prosecutions against one person only. — Fact that defendant was the first person in 24 years to be tried three times for the same offense in his judicial district did not deny him equal protection, since state and federal constitutions did not require uniform enforcement of the law and did not protect defendant from the consequences of his crime. State v. Lunn, 1975-NMCA-051, 88 N.M. 64, 537 P.2d 672, cert. denied, 88 N.M. 318, 540 P.2d 248, cert. denied, 423 U.S. 1058, 96 S. Ct. 793, 46 L. Ed. 2d 648 (1976).

Prohibition against carrying concealed weapon. — Section 30-7-2 NMSA 1978, the prohibition against carrying a concealed weapon, does not violate equal protection on the basis that it impermissibly distinguishes between rich and poor in that home and vehicle owners may properly conceal weapons, but poor people do not own a residence or vehicle in which to conceal a weapon. State v. McDuffie, 1987-NMCA-077, 106 N.M. 120, 739 P.2d 989.

Counsel need not be appointed for appeal to United States supreme court. — Habeas corpus relief was refused on grounds that there was no constitutional compulsion requiring the supreme court of New Mexico to appoint counsel to assist defendant in taking an appeal in a criminal case from that court to the supreme court of the United States. Peters v. Cox, 341 F.2d 575 (10th Cir. 1965), cert. denied, 382 U.S. 863, 86 S. Ct. 126, 15 L. Ed. 2d 101 (1965).

IV. EQUAL RIGHTS AMENDMENT.

City of Albuquerque ordinance which prohibits public nudity does not make an invidious gender classification that operates to the disadvantage of women and does not violate the New Mexico equal rights amendment. City of Albuquerque v. Sachs, 2004-NMCA-065, 135 N.M. 578, 92 P.3d 24, cert. denied, 2004-NMCERT-006, 135 N.M. 789, 93 P.3d 1292.

City of Albuquerque ordinance which prohibits public nudity does not discriminate against women in violation of the equal rights amendment in the New Mexico constitution because it prohibits a women from showing her breast in a public place without a fully opaque covering of her entire nipple when there is no such prohibition against men. City of Albuquerque v. Sachs, 2004-NMCA-065, 135 N.M. 578, 92 P.3d 24, cert. denied, 2004-NMCERT-006, 135 N.M. 789, 93 P.3d 1292.

Restrictions on funding for abortions. — Rule of the human services department prohibiting the use of state funds to pay for abortions for Medicaid-eligible women except when necessary to save the life of the mother, to end an ectopic pregnancy, or when the pregnancy resulted from rape or incest violates the equal rights amendment. New Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-005, 126 N.M. 788, 975 P.2d 841, cert. denied, 526 U.S. 1020, 119 S. Ct. 1256, 143 L. Ed. 2d 352 (1999).

There is no absolute right of man and woman to associate. — The right of association has never been held to apply to the right of one individual to associate with another, and certainly it has never been construed as an absolute right of association between a man and woman at any and all places and times. Futrell v. Ahrens, 1975-NMSC-044, 88 N.M. 284, 540 P.2d 214. See notes to N.M. Const., art. II, § 17.

Conditions governing alimony not prescribed, except equal protection. — The equal rights amendment (amendment to this section by H.J.R. No. 2, § 1 (Laws 1972)) does not prescribe conditions governing when and why alimony should be granted, beyond the requirement of equal protection, particularly when the award of alimony includes support for the children. Schaab v. Schaab, 1974-NMSC-072, 87 N.M. 220, 531 P.2d 954.

United States supreme court decisions are applicable to due process matters. — In view of the fact that the provisions of this section concerning due process and N.M. Const., art. II, § 20, concerning the taking of private property without just compensation, are worded exactly as those contained in U.S. Const., amend. V, the holdings of the United States supreme court are applicable to the issues presented in determining whether the graduated income tax provided for under the statutes, 7-2-1 NMSA 1978 et seq., does not violate either the due process clause or art. II, § 20. 1968 Op. Att'y Gen. No. 68-09 (tax not unconstitutional).

Serious problems may justify restrictions. — If a police measure is directed to a public interest of minor concern, while imposing serious restrictions in regulation or law of guaranteed rights to accomplish the interest, it tends to show it is unreasonable. On the other hand, the more insistent the public need, the more may private rights be restricted. 1961 Op. Att'y Gen. No. 61-13.

Nonparticipation by commissioner does not violate due process. — If an order of the corporation commission (now public regulation commission) is reasonable and based upon evidence adduced at public hearing, there is little merit to contention that the utility affected by the order has been deprived of due process of law because of nonparticipation of any member of the commission at the hearing proper. 1952 Op. Att'y Gen. No. 52-5473.

Laws 1937, ch. 168 (former 13-3-1 to 13-3-5 NMSA 1978), which was commonly referred to as the Public Printing Bill, was constitutional. 1937 Op. Att'y Gen. No. 37-1704.

Constitutional regulations and legislation. — Where an act of the legislature increases hunting or fishing license fees as of a certain date, any discrimination between persons on the basis of when they purchase a license is permissible, rational and unavoidable. 1964 Op. Att'y Gen. No. 64-91.

Unconstitutional legislation. — The citizenship requirements imposed by the Dental Act (former 61-5-1 NMSA 1978 et seq.) cannot be enforced consistently with constitutional guarantees of equal protection. 1980 Op. Att'y Gen. No. 80-20.

Immunity of public defenders from malpractice claims. — Neither the guarantee of the equal protection of the laws or the provision against local or special laws deny to the legislature the right to classify along reasonable lines. 1969 Op. Att'y Gen. No. 69-08.

The classification must rest on some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. 1961 Op. Att'y Gen. No. 61-68.

Prohibiting professionals from continuing present activities is arbitrary. — An act which would effectively prohibit architects, architect engineers and registered professional engineers from engaging in activities which they presently legally perform, involves an arbitrary division of a general class in violation of the constitution. 1967 Op. Att'y Gen. No. 67-34.

License may not be suspended without sufficient proof of fault. — A statute authorizing suspension of a driver's license is unconstitutional if it fails to require sufficient evidence of fault on the part of a driver involved in an accident resulting in the death or personal injury of another or serious property damage, in that the failure to include such a requirement denies to licensees the equal protection of the laws, contrary to this section. 1960 Op. Att'y Gen. No. 60-194. See 66-5-30 A(2) NMSA 1978, authorizing suspension when driver "has been . . . convicted in any accident. . . ."

Magistrates. — The requirement of 35-2-1 NMSA 1978 that magistrates in magistrate districts having a population of 100,000 (now 200,000) persons or more be lawyers is a reasonable legislative classification and does not violate this section or N.M. Const., art. IV, § 24. 1969 Op. Att'y Gen. No. 69-08.

Hunting and fishing fees. — There is no discrimination in an act which increases hunting or fishing license fees as of a certain effective date except that which may result from an individual's own action or inaction. 1964 Op. Att'y Gen. No. 64-91.

Teachers salaries. — Classification of teachers for salary purposes, based on residency, per se, bears no reasonable relationship to the teaching qualifications of the teacher, and on its face it is unreasonable and arbitrary. 1964 Op. Att'y Gen. No. 64-85.

Municipal clean indoor air ordinance did not violate the guarantee to equal protection of the laws because its smoking restrictions applied to some public places but not to others. 1989 Op. Att'y Gen. No. 89-03.

Present graduated income tax provisions do not conflict with the equal protection clause of this section. 1968 Op. Att'y Gen. No. 68-09. See 7-2-1 NMSA 1978 et seq.

Arbitrary classification between incomes would be invalid. — A statute making an arbitrary classification between incomes to be taxed and those in part or in whole exempt from or not subject to taxation is invalid. 1961 Op. Att'y Gen. No. 61-68.

Excluding women from military institute cadets is unconstitutional. — The exclusion of women from New Mexico military institute's cadet program violates the equal rights amendment. 1975 Op. Att'y Gen. No. 75-74.

Law reviews. — For note, "Police Power and the Design of Buildings," see 5 Nat. Resources J. 122 (1965).

For article, " 'To Purify the Bar': A Constitutional Approach to Non-Professional Misconduct," see 5 Nat. Resources J. 299 (1965).

For comment, "Land Use Planning - New Mexico's Green Belt Law," see 8 Nat. Resources J. 190 (1968).

For note, "Student Discipline Cases at State Universities in New Mexico - Procedural Due Process," see 1 N.M. L. Rev. 231 (1971).

For note, "Due Process, Equal Protection and the New Mexico Parole System," see 2 N.M. L. Rev. 234 (1972).

For symposium, "The New Mexico Equal Rights Amendment: Introduction and Overview," see 3 N.M. L. Rev. 1 (1973).

For comment, "Criminal Procedure - Preventive Detention in New Mexico," see 4 N.M. L. Rev. 247 (1974).

For article, "The Community Property Act of 1973: A Commentary and Quasi-Legislative History," see 5 N.M. L. Rev. 1 (1974).

For survey, "The Statute of Limitations in Medical Malpractice Actions," see 6 N.M. L. Rev. 271 (1976).

For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M. L. Rev. 5 (1976-77).

For note, "McGeehan v. Bunch - Invalidating Statutory Tort Immunity Through a New Approach to Equal Protection Analysis," see 7 N.M. L. Rev. 251 (1977).

For comment, "In-Migration of Couples from Common Law Jurisdictions: Protecting the Wife at the Dissolution of the Marriage," see 9 N.M. L. Rev. 113 (1978-79).

For note, "Conservation, Lifeline Rates and Public Utility Regulatory Commissions," see 19 Nat. Resources J. 411 (1979).

For comment, "Statutory Notice in Zoning Actions: Nesbit v. City of Albuquerque," see 10 N.M. L. Rev. 177 (1979-1980).

For note, "Contingent Remainders; Rule of Destructibility Abolished in New Mexico," see 10 N.M. L. Rev. 471 (1980).

For note, "Community Property - Transmutation of Community Property: A Preference for Joint Tenancy in New Mexico?" see 11 N.M. L. Rev. 421 (1981).

For note, "Criminal Procedure - Grand Jury - Inadmissible Evidence, Due Process," see 11 N.M. L. Rev. 451 (1981).

For article, "Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice," see 12 N.M. L. Rev. 747 (1982).

For article, "Sexual Equality, the ERA and the Court - A Tale of Two Failures," see 13 N.M. L. Rev. 53 (1983).

For comment, "Procedural and Substantive Rights to the Media Govern Requests to Restrict News Coverage of Criminal Cases: State ex rel. New Mexico Press Ass'n v. Kaufman," see 14 N.M. L. Rev. 401 (1984).

For comment, "Compulsory School Attendance - Who Directs the Education of a Child? State v. Edgington," see 14 N.M. L. Rev. 453 (1984).

For comment, "An Equal Protection Challenge to First Degree Depraved Mind Murder Under the New Mexico Constitution," see 19 N.M. L. Rev. 511 (1989).

For article, "Delinking Disproportionality From Discrimination: Procedural Burdens as Proxy for Substantive Visions," see 23 N.M. L. Rev. 87 (1993).

For note, "Family Law - New Mexico Expands Due Process Rights of Parents in Termination of Parental Rights: In Re Ruth Anne E.," see 31 N.M. L. Rev. 439 (2001).

Parent's mental illness or mental deficiency as ground for termination of parental rights — constitutional issues, 110 A.L.R. 5th 579.

Constitutional and statutory validity of judicial videoconferencing, 115 A.L.R. 5th 509.

Application of workers' compensation laws to illegal aliens, 121 A.L.R. 5th 523.

Federal and state constitutional provisions and state statutes as prohibiting employment discrimination based on heterosexual conduct or relationship, 123 A.L.R. 5th 411.

Validity, construction, and application of governmental or private regulation of breast-feeding, 5 A.L.R. 6th 485.

Right of jailed or imprisoned parent to visit from minor child, 6 A.L.R. 6th 483.

Immunity of states in private actions for damages under Family and Medical Leave Act (29 U.S.C.A. §§ 2601 et seq.), 180 A.L.R. Fed. 579.

Propriety of federal court's abstention, under Railroad Commission of Tex. v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), as to federal constitutional due process or equal protection claim, 183 A.L.R. Fed. 379.

Validity, construction, and application of mandatory predeportation detention provision of Immigration and Nationality Act (8 U.S.C.A. § 1226(c)) as amended, 187 A.L.R. Fed. 325.

Forcible administration of antipsychotic medication to pretrial detainees — federal cases, 188 A.L.R. Fed. 285.

Validity, construction, and application of hardship standard for cancellation of removal of address under 8 U.S.C.A. § 1229b(b)(1)(D), including Jurisdictional Issues, 196 A.L.R. Fed. 337.

Marriage between persons of same sex — limited States and Canadian cases, 1 A.L.R. Fed. 2d 1.

Validity, construction, and application of Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), 42 U.S.C.A. § 1973ff et seq., 1 A.L.R. Fed. 2d 251.

Constitutional issues concerning punitive damages — Supreme Court cases, 1 A.L.R. Fed. 2d 529.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15 Am. Jur. 2d Civil Rights § 1 et seq.; 16A Am. Jur. 2d Constitutional Law §§ 552 to 600, 735 to 854; 45A Am. Jur. 2d Job Discrimination § 146 et seq.

Fair employment statutes designed to eliminate racial, religious or national discrimination in private employment, 37 A.L.R.5th 349.

Blood grouping tests, 46 A.L.R.2d 1000, 43 A.L.R.4th 579.

Right to and appointment of counsel in juvenile court proceedings, 60 A.L.R.2d 691, 25 A.L.R.4th 1072.

Zoning regulations as affecting churches, 74 A.L.R.2d 377, 62 A.L.R.3d 197.

Incompetency of counsel chosen by accused as affecting validity of conviction, 74 A.L.R.2d 1390, 34 A.L.R.3d 470, 2 A.L.R.4th 27, 2 A.L.R.4th 807, 13 A.L.R.4th 533, 15 A.L.R.4th 582, 18 A.L.R.4th 360, 26 A.L.R. Fed. 218, 53 A.L.R. Fed. 140.

Procedural due process requirements in proceedings involving applications for admission to bar, 2 A.L.R.3d 1266.

Preconviction procedure for raising contention that enforcement of penal statute or law is unconstitutionally discriminatory, 4 A.L.R.3d 404.

Validity, as a matter of due process, of state statutes or rules of court conferring in personam jurisdiction over nonresidents or foreign corporations on the basis of isolated business transactions, 20 A.L.R.3d 1201.

Suppression of evidence by prosecution in criminal case as vitiating conviction under principles of due process of law, 34 A.L.R.3d 16.

Violation of due process or equal protection of law by exclusion of or discrimination against physician or surgeon by hospital authorities, 37 A.L.R.3d 645.

Discrimination on basis of illegitimacy as denial of constitutional rights, 38 A.L.R.3d 613.

Validity and construction of statute requiring defendant in criminal case to disclose matter as to alibi defense, 45 A.L.R.3d 958.

Incapacity caused by accident in suit as affecting notice of claim required as condition of holding local government unit liable for personal injury, 44 A.L.R.3d 1108.

Statute or ordinance respecting employment of women in places where intoxicating liquors are sold as class legislation or denial of equal protection of law, 46 A.L.R.3d 369.

Validity of municipal ordinance imposing income tax or license upon nonresidents employed in taxing jurisdiction, 48 A.L.R.3d 343.

Validity of statutes authorizing asexualization or sterilization of criminals or mental defectives, 53 A.L.R.3d 960.

Validity of statute imposing durational residency requirements for divorce applicants, 57 A.L.R.3d 221.

Necessity of notice and hearing before revocation or suspension of motor vehicle driver's license, 60 A.L.R.3d 361.

Application of state law to sex discrimination in employment advertising, 66 A.L.R.3d 1237.

Application of state law to sex discrimination in sports, 66 A.L.R.3d 1262.

Validity under state law of self-help repossession of goods as per U.C.C. § 9-503, 75 A.L.R.3d 1061.

Validity of exception for specific kind of tort action in survival statute, 77 A.L.R.3d 1349.

Right of illegitimate child, after Levy v. Louisiana, to recover under wrongful death statute for death of putative father, 78 A.L.R.3d 1230.

Use of peremptory challenges to exclude from jury persons belonging to race or class, 79 A.L.R.3d 14, 20 A.L.R.5th 398.

Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 80 A.L.R.3d 1141.

Construction and application of state equal rights amendments forbidding determination of rights based on sex, 90 A.L.R.3d 158.

Validity of statutory classifications based on population - zoning, building, and land use statutes, 98 A.L.R.3d 679.

Validity, construction, and effect of state statutes affording preferential property tax treatment to land used for agricultural purposes, 98 A.L.R.3d 916.

Validity of statutory classifications based on population - tax statutes, 98 A.L.R.3d 1083.

Constitutionality of rape laws limited to protection of females only, 99 A.L.R.3d 129.

Validity of statutes or rule providing that marriage or remarriage of woman operates as revocation of will previously executed by her, 99 A.L.R.3d 1020.

Constitutionality of assault and battery laws limited to protection of females or which provide greater penalties for males than for females, 5 A.L.R.4th 708.

Validity of statutes or ordinances requiring sex-oriented businesses to obtain operating licenses, 8 A.L.R.4th 130.

Validity, construction, and effect of "Sunday closing" or "blue" laws - modern status, 10 A.L.R.4th 246.

Sex discrimination in treatment of jail or prison inmates, 12 A.L.R.4th 1219.

Validity of law criminalizing wearing dress of opposite sex, 12 A.L.R.4th 1249.

Constitutionality of gender-based classifications in criminal laws proscribing nonsupport of spouse or child, 14 A.L.R.4th 717.

Statutes limiting time for commencement of action to establish paternity of illegitimate child as violating child's constitutional rights, 16 A.L.R.4th 926.

On-the-job sexual harassment as violation of state civil rights law, 18 A.L.R.4th 328.

Validity of state statutes and regulations limiting or restricting public funding for abortions sought by indigent women, 20 A.L.R.4th 1166.

Sufficiency of access to legal research facilities afforded defendant confined in state prison or local jail, 23 A.L.R.4th 590.

Right of accused to be present at suppression hearing or other hearings between court and attorneys concerning evidentiary questions, 23 A.L.R.4th 955.

Validity of statutes or regulations denying welfare benefits to claimants who transfer property for less than its full value, 24 A.L.R.4th 215.

In personam jurisdiction, under long-arm statute, over nonresident physician, dentist, or hospital in medical malpractice action, 25 A.L.R.4th 706.

Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.

Refusal to rent residential premises to persons with children as unlawful discrimination, 30 A.L.R.4th 1187.

Enforceability of agreement by law enforcement officials not to prosecute if accused would help in criminal investigation or would become witness against others, 32 A.L.R.4th 990.

Applicability and application of zoning regulations to single residences employed for group living of mentally retarded persons, 32 A.L.R.4th 1018.

Propriety of automobile insurer's policy of refusing insurance, or requiring advanced rates, because of age, sex, residence, or handicap, 33 A.L.R.4th 523.

Effect of juror's false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family, 38 A.L.R.4th 267.

Propriety of governmental eaves-dropping on communications between accused and his attorney, 44 A.L.R.4th 841.

Drunk driving: motorist's right to private sobriety test, 45 A.L.R.4th 11.

Propriety and prejudicial effect of comments by counsel vouching for credibility of witness - state cases, 45 A.L.R.4th 602.

Podiatry or chiropody statutes: validity, construction, and application, 45 A.L.R.4th 888.

Validity and construction of terroristic threat statutes, 45 A.L.R.4th 949.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.

Validity, construction, and application of state relocation assistance laws, 49 A.L.R.4th 491.

Paternity proceedings: right to jury trial, 51 A.L.R.4th 565.

Court appointment of attorney to represent, without compensation, indigent in civil action, 52 A.L.R.4th 1063.

Local government tort liability: minority as affecting notice of claim requirement, 58 A.L.R.4th 402.

AIDS infection as affecting right to attend public school, 60 A.L.R.4th 15.

Validity, construction, and effect of statutes establishing shoplifting as separate criminal offense, 64 A.L.R.4th 1088.

Homicide: cremation of victim's body as violation of accused's right, 70 A.L.R.4th 1091.

Nonconsensual treatment of involuntarily committed mentally ill persons with neuroleptic or antipsychotic drugs as violative of state constitutional guaranty, 74 A.L.R.4th 1099.

Validity of charitable gift or trust containing gender restrictions on beneficiaries, 90 A.L.R.4th 836.

Validity, construction, application, and effect of statute requiring conditions, in addition to expiration of time, for reinstatement of suspended or revoked driver's license, 2 A.L.R.5th 725.

Liability of church or religious society for sexual misconduct of clergy, 5 A.L.R.5th 530.

Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties, 18 A.L.R.5th 1.

Validity and application of statute or regulation authorizing revocation or suspension of driver's license for reason unrelated to use of, or ability to operate, motor vehicle, 18 A.L.R.5th 542.

Sufficiency, as to content, of notice of garnishment required to be served upon garnishee, 20 A.L.R.5th 229.

Validity of state or local gross receipts tax on gambling, 21 A.L.R.5th 812.

Application of statute denying access to courts or invalidating contracts where corporation fails to comply with regulatory statute as affected by compliance after commencement of action, 23 A.L.R.5th 744.

Right to compensation for real property damaged by law enforcement personnel in course of apprehending suspect, 23 A.L.R.5th 834.

Validity, construction, and application of state statutory provisions limiting amount of recovery in medical malpractice claims, 26 A.L.R.5th 245.

Zoning authority as estopped from revoking legally issued building permit, 26 A.L.R.5th 736.

Validity, construction, and application of state statutes prohibiting sale or possession of controlled substances within specified distance of schools, 27 A.L.R.5th 593.

Prejudicial effect, in civil case, of communications between judges and jurors, 33 A.L.R.5th 205.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities, 36 A.L.R.5th 161.

Judicial construction and application of state legislation prohibiting religious discrimination in employment, 37 A.L.R.5th 349.

Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions-post-connelly cases, 48 A.L.R.5th 555.

Duty of prosecutor to present exculpatory evidence to state grand jury, 49 A.L.R.5th 639.

Voir dire exclusions of men from state trial jury or jury panel - post-J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, cases, 88 A.L.R.5th 67.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process, 93 A.L.R.5th 527.

Failure of state prosecutor to disclose fingerprint evidence as violating due process, 94 A.L.R.5th 393.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process, 95 A.L.R.5th 611.

Federal and state constitutional provisions as prohibiting discrimination in employment on basis of gay, lesbian, or bisexual sexual orientation or conduct, 96 A.L.R.5th 391.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process, 101 A.L.R.5th 187.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process, 102 A.L.R.5th 327.

Validity, construction, and operation of municipal ordinances proscribing or restricting smoking in restaurants, 103 A.L.R.5th 333, §§ 3, 5.

Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - federal cases, 41 A.L.R. Fed. 10.

Refusal to hire, or dismissal from employment, on account of plaintiff's sexual lifestyle or sexual preference as violation of federal constitution or federal civil rights statutes, 42 A.L.R. Fed. 189.

What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in federal criminal proceedings, 45 A.L.R. Fed. 732.

Validity, under First Amendment and 42 USC § 1983, of public college or university's refusal to grant formal recognition to, or permit meetings of, student homosexual organizations on campus, 50 A.L.R. Fed. 516.

Sex discrimination in law enforcement and corrections employment, 53 A.L.R. Fed. 31.

Actions, under 42 USC § 1983, for violations of federal statutes pertaining to rights of handicapped persons, 63 A.L.R. Fed. 215.

Effect of customer's interest or preference on establishing bona fide occupational qualification under Title VII of Civil Rights Act of 1964 (42 USC § 2000e-2(e)), 63 A.L.R. Fed. 402.

Constitutionality of provision, in Rule B, Supplemental Rules for Certain Admiralty and Maritime Claims, allowing attachment of goods and chattels without prior notice, 63 A.L.R. Fed. 651.

Propriety of search involving removal of natural substance or foreign object from body by actual or threatened force, 66 A.L.R. Fed. 119.

Disparate impact test for sex discrimination in employment under Title VII of Civil Rights Act of 1964 (42 USC § 2000e et seq.), 68 A.L.R. Fed. 19.

Propriety of federal court's ordering state or local tax increase to effectuate civil rights decree, 76 A.L.R. Fed. 504.

What constitutes violation of 18 U.S.C. § 245(b), prohibiting interferences with civil rights, 76 A.L.R. Fed. 816.

Eligibility of illegitimate child for survivor's benefits under Social Security Act, pursuant to § 216(h)(2)(A) of act (42 USCS § 416(h)(2)(A)), where state intestacy law denying inheritance right, or application of that state law to § 216(h)(2)(A), may violate child's right to equal protection of laws, 116 A.L.R. Fed. 121.

When may person not named as respondent in charge filed with Equal Employment Opportunity Commission (EEOC) be sued under Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.), 121 A.L.R. Fed. 1

Validity, construction, and application of 18 USCS § 1956, which criminalizes money laundering, 121 A.L.R. Fed. 525.

Who is "prevailing party" for purposes of awards of attorneys' fees under 42 USCS § 1973l(e), providing for such awards to prevailing parties in actions or proceedings to enforce voting guarantees under fourteenth or fifteenth amendment, 127 A.L.R. Fed. 1

Stranger's alleged communication with juror, other than threat of violence, as prejudicial in federal criminal prosecution, 131 A.L.R. Fed. 465.

Right of Prevailing Plaintiffs to Recover Attorneys' Fees Under § 706(k) of Civil Rights Act of 1964 (42 USCS § 2000e5(k)), 132 A.L.R. Fed. 345.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes - nonemployment cases, 152 A.L.R. Fed. 1

What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes - public employment cases, 153 A.L.R. Fed. 609.

Sex discrimination in public education under Title IX - supreme court cases, 158 A.L.R. Fed. 563.

Actions brought under 42 U.S.C.A. §§ 1981-1983 for racial discrimination - supreme court cases, 164 A.L.R. Fed. 483.

What constitutes reverse sex or gender discrimination against males violative of federal constitution or statutes - nonemployment cases, 166 A.L.R. Fed. 1

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes - public employment cases, 168 A.L.R. Fed. 1

Equal protection and due process clause challenges based on racial discrimination - supreme court cases, 172 A.L.R. Fed. 1

Equal protection and due process clause challenges based on sex discrimination - Supreme Court cases, 178 A.L.R. Fed. 25.

14 C.J.S. Supp. Civil Rights § 1 et seq.; 16B C.J.S. Constitutional Law §§ 700 to 870; 16C C.J.S. Constitutional Law §§ 871 to 1138; 16D C.J.S. Constitutional Law §§ 1139 to 1427.