N.M. Ct. App. Summary Calendar Explanation

Court of Appeals Judge Lynn Pickard prepared this paper in 1982, when she was Chief Staff

Attorney of the Prehearing Division of the C ourt of Appeals. She revised and updated it

yearly through 1990. Subsequent revisions and updates have been prepared by Gina

Maestas, former Chief Staff Attorney and Bridget Gavahan, current Chief Staff Attorney of

the Prehearing Division of the Court of Appeal. (Rev. 8/2006)

DOCKETING AND CALENDARING1

The purpose of this paper is to explain how the New Mexico Court of Appeals

goes about calendaring cases. It is divided into four sections. The first section explains

the history of the Rules of Appellate Pr ocedure which allow for calendaring. The

second section explains the procedures the Court of Appeals uses to calendar cases. The

third section is a discussion of cases relating to the docketing statements in regard to the

calendaring process and rule vi olations. The fourth sec tion discusses the expedited

bench decision program.

1. INTRODUCTION

The New Mexico Rules of Appellate Procedure for Criminal Cases were drafted

in 1975 with two purposes in mind: (1) to expedite the flow of criminal cases through

the appellate courts by providing a docketing procedure allowing the Court to fast-track

certain categories of cases in the initial stage of the appeal, and (2) to cut down on

transcript volume and cost by attempting to eliminate the ordering of unnecessary

portions of the transcript.

At first, the rules applied only to criminal, delinquency, and need of supervision

cases. Beginning in 1983, the scope of the rules was increased to include other types of

cases, notably workers’ compensation and domestic relations cases. By 1987, the rules

allowing calendaring applied to all cases filed in the Court of Appeals. In 1995, contract

cases were transferred from the New Mexico Supreme Court to the New Mexico Court

of Appeals and are now subject to the calendaring process as well.

To the first end, i.e., expediting the flow of cases, the rules provide for the filing

of a docketing statement thirty days after the notice of appeal. Rule 12-208(B) NMRA.

The requirements of the docketing statement found in Rule 12-208(D)(1)-(8) should

allow the Court to learn everything it needs to know to calendar the case for a faster or

slower track.

The rule on calendars is Rule 12-210 NMRA. The basic differences between the

calendars are as follows:

Summary: No transcript; twenty-day briefing time; no oral

argument.

Legal: No transcript; thirty-day full briefing.

General: Transcript; forty-five-day full briefing.

With regard to oral argument, Rule 12-214(A) NMRA provides that all matters

will be decided without oral argument unless the Court otherwise directs. A party

desiring oral argument on a case assigned to a nonsummary calendar has to file a

separate and specific request before the time the reply brief is due.

To the second end, i.e., eliminating transcript volume and cost, the rules provide

for calendars without transcript, Rule 12-210(C) and (D), and a transcript designation

procedure, Rules 12-211 NMRA and 12-212 NMRA. In cases assigned to the general

calendar, the parties are able to order up any transcript and documentary exhibits they

want, subject to the proviso that “[t]he appellant shall designate all portions of the

proceedings material to the consideration of the issues presented in the docketing

statement, but shall designate only those portions of the proceedings that have some

relationship to the issues on appeal.” Rule 12-211(C)(1). Non-documentary exhibits

must be requested in and approved by the appellate court. Rule 12-212(B).

2. PROCEDURES FOR CALENDARING

Below are the procedures that the Court of Appeals Prehearing staff attorneys use

for calendaring cases. When the record proper from the district court or administrative

agency is received in the appellate clerk’s office, it and the Court of Appeals’ file,

containing the docketing statement, are routed to a Prehearing staff attorney, who writes

a memorandum recommending a calendar assignment. One judge is responsible for

calendaring. He or she will read the memorandum, adopt or reject the recommendation,

and assign the case to a calendar. Calendaring duties rotate among the judges in a

manner determined by them from time to time. In the past, judges have had calendaring

duties on a monthly rotation and on a longer basis. Presently, the judges are on a

three-month rotation, with one judge acting as calendar judge during the third month of

each rotation. Likewise, calendaring duties rotate among the staff attorneys, who

generally do calendaring for six months at a time. The staff attorney is responsible for

a single case until it is decided summarily or assigned to a non-summary calendar.

The following guidelines are given to the staff attorneys to use in calendaring

cases:

I. a) Check the record proper for a final appealable judgment or

order.

b) Determine whether jurisdiction is in the Court of Appeals.

c) Check the record proper for a timely and properly filed

notice of appeal.

II. Scan the issues raised.

III. Review the record proper.

IV. Verify the allegations in the docketing statement against the record

proper.

V. a) Critically read the docketing statement to determine

whether it conforms to the rules.

b) Analyze the docketing statement for the real legal problems

underlying the issues raised.

VI. Review authorities cited and do independent research if necessary.

VII. Let your recommendation reflect the practicalities of our procedures.

a) Is the issue raised covered by New Mexico precedent or

without merit?

b) If a Franklin [State v. Franklin, 78 N.M. 127, 428 P.2d 982

(1967)] issue is suggested, has counsel specified what the

defendant wishes to raise?

c) Is there an obvious issue for reversal?

d) Is the issue a purely legal question that does not require

review of the transcript and for which there is no New

Mexico authority?

e) Will a review of the proceedings below be required even

though counsel has drafted an adequate docketing

statement?

f) Will a review of the proceedings resolve the appeal easily

without extensive briefing?

Procedure I insures that there is jurisdiction in the Court of Appeals. Procedures

II through VI are what the staff in fact does. Procedures VII and V(a) suggest the

various calendars.

A case falling under V(a) may call for a rejection of the docketing statement and

a request that it be refiled in conformity with the rules. Cases falling under VII(a)

through (c) suggest a summary calendar, which would mean that the Court would issue

a calendar notice or notice of proposed disposition either for affirmance or reversal.

Cases falling under VII(d) suggest a legal calendar, although this calendar is rarely used.

Cases falling under VII(e) suggest a general calendar. An example of a case falling

under VII(e) is where potentially reversible evidentiary issues are raised but a review of

the proceedings is warranted to eliminate the possibility of harmless error. Another

example is where sufficiency of the evidence is raised and the factual recitation in the

docketing statement appears complete but shows arguably insufficient evidence. Cases

falling under VII (f) suggest assignment to the expedited bench decision program.

It should be noted that the procedures are merely guidelines and that, as a

practical matter, many cases have their individual quirks which warrant departure from

the guidelines. Calendaring is, in large part, an intuitive matter. On summary calendar

cases, the Court attempts to express its analysis in order to allow any memorandum in

opposition to meet the Court’s thinking head-on. Thus, in the calendar notice the Court

explains its understanding of the facts, its perception of the issues raised, and its

rationale for proposing to affirm, reverse, or dismiss the appeal. Because the Court’s

understanding of the facts is limited to what is contained in the docketing statement and

the record proper, the summary calendar notice may contain specific requests for

additional information from the parties. The summary calendar notice may also attempt

to restate the issues on appeal in order to give the parties the opportunity to correct any

misunderstandings that the Court may have regarding the issues presented. In short, the

calendaring process is intended to be a sort of discourse between the attorneys and the

Court about the issues.

The initial calendaring in summary cases is not final. State v. Gonzales, 110

N.M. 218, 227, 794 P.2d 361, 370 (Ct. App. 1990) (stating that calendar notice is a

preliminary and tentative indication of how a panel might resolve the issues on appeal

and may be issued for tactical reasons, such as to elicit more facts from the prevailing

party). Thus, it is written with tentative language intended to convey that the Court will

revise its view of the case if the parties provide the Court with additional facts or legal

authority that would warrant a different disposition or calendar assignment. It is an

invitation to engage in a discussion with the Court about the proper disposition of the

appeal.

Thus, the party against whom the proposed disposition is made may file a

memorandum in opposition to the proposal. That memorandum in opposition should

clearly point out the errors in fact and law to the Court. Hennessy v. Duryea, 1998-

NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683. A failure to file a memorandum in

opposition constitutes acceptance of the disposition proposed in the calendar notice.

Frick v. Veazey, 116 N.M. 246, 247, 861 P.2d 287, 288 (Ct. App. 1993). A

memorandum in support of the proposed disposition may also be filed. However, such

memoranda are rarely filed. Memoranda, either in opposition or in support, should be

used to respond to the Court’s notice, not to engage in a war of words with the other

side.

After the Court considers the memoranda, it may issue a further notice of

assignment to the summary calendar, to the nonsummary calendar, or dispose of the case

by opinion.

For the past several years, the Court of Appeals has disposed of between fifty and

sixty percent of its cases summarily. The Court keeps statistics on the percentage of

cases, civil and criminal, that are disposed of summarily. Those statistics are kept on a

monthly basis, based on the month in which the case was first calendared. Complete

statistics are available when all cases calendared during a particular month have either

been disposed of summarily or assigned to a nonsummary calendar.

3. DISCUSSION OF CASES

A. DOCKETING STATEMENT - RESPONSIBILITY

Rule 12-208(A) states that trial counsel is responsible for filing the docketing

statement. In Loverin v. Debusk, 114 N.M. 1, 1-2, 833 P.2d 1182, 1182-83 (Ct. App.

1992), the Court explained the reason for that requirement: trial counsel is in a better

position to know what evidence and facts were presented below. The Court’s

calendaring system depends on a thorough and accurate statement of the facts. See State

v. Ibarra, 116 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993). Thus, it is ultimately

trial counsel’s responsibility to prepare and file the docketing statement.

B. DOCKETING STATEMENT-ISSUES

The Rules of Appellate Procedure provide that the docketing statement states the

issues and how they were preserved in the trial court, Rule 12-208(D)(4), and that trial

counsel determines the issues to raise, Rule 12-208(A). There are provisions for

amending docketing statements, Rule 12-208(F), and errors being raised for the first

time on appeal, Rule 12-216 NMRA. The rules used to provide that only the issues

raised in the docketing statement could be briefed when the case was assigned to the

general calendar. Thus, there is a line of older Court of Appeals and Supreme Court

cases holding that issues not presented in the docketing statements will not be

considered on appeal. See, e.g., State v. Vogenthaler, 89 N.M. 150, 153, 548 P.2d 112,

115 (Ct. App. 1976).

However, the appellate rules were amended so that for appeals filed after July 1,

1990, the rule restricting argued issues to those listed in the docketing statement applies

only to cases on a summary calendar. See Rules 12-210, and -213 NMRA. Thus, once

a case has been assigned to a nonsummary calendar, the docketing statement no longer

limits the issues that can be briefed. State v. Salgado, 112 N.M. 537, 538, 817 P.2d 730,

731 (Ct. App. 1991). Nevertheless, the issues generally must still have been raised in

the trial court. Id. Once a case has been reassigned to a nonsummary calendar, issues

that may have been considered abandoned by failure to argue them during the summary

calendaring process, see State v. Martinez, 97 N.M. 585, 586, 642 P.2d 188, 189 (Ct.

App. 1982), are revived and may be briefed. State ex rel. State Police Dep’t v. One

1984 Pontiac 6000, 111 N.M. 85, 90, 801 P.2d 667, 672 (Ct. App. 1990), aff’d on other

grounds, In re Forfeiture of $2,730, 111 N.M. 746, 809 P.2d 1274 (1991).

The rules that have developed over time regarding issues being limited to those

raised in the docketing statement or proper amendment thereto, are still valid for cases

being disposed of on a summary calendar. As far as construing the issues in the

docketing statement is concerned, Eller v. State, 90 N.M. 552, 554, 566 P.2d 101, 103

(1977), stands for the proposition that docketing statements are not read like long form

indictments. If the basic issue is revealed, the Court will reach that issue even though

it is not in the proper place or form. Id.

State v. Jacobs, 91 N.M. 445, 450, 575 P.2d 954, 959 (Ct. App. 1978), was the

first case to recognize the possibility of amending the docketing statement, but its tone

is to discourage new appellate counsel from raising new issues, not thought of by trial

counsel and not included in the docketing statement, on appeal. Jacobs’ holding, that

a motion to amend the docketing statement filed well into an extension of briefing time

will be denied, has been overruled by State v. Moore, 109 N.M. 119, 129, 782 P.2d 91,

101 (Ct. App. 1989). However, nothing in Moore or the more recent cases indicates any

intent to relax the substantive requirements for amending docketing statements, which

now apply only to cases on summary calendars. Dicta in State v. Ramming, 106 N.M.

42, 43-44, 738 P.2d 914, 915-16 (Ct. App. 1987), also discourages the raising of new

issues. Although the Ramming Court decided the new issues on their merits and thus

did not find it necessary to decide whether to allow amendment to raise them, the Court

did note that there is not hing unconstitutional or unfai r about denying a criminal

defendant the right to raise non-meritorious issues. Id. at 44, 738 P.2d at 916. While

Ramming was decided on a nonsummary calendar, the dicta will proba bly be held to

apply to summary cases.

In State v. Rael, 100 N.M. 193, 668 P.2d 309 (Ct. App. 1983), the Court of

Appeals stated it would not grant motions to amend the docketing statement where the

issues were so without merit as not to be viable. Id. at 197, 668 P.2d at 313. It also

clarified the procedure to be followed in moving to amend a docketing statement. Id.

The following rule was set forth: a motion to amend to raise new issues will be granted

only if

1. the motion is timely;

2. it states all facts material to a consideration of the issues;

3. it states the issues and how they were preserved or shows why they

need not be preserved;

4. it states the reason why the issues were not originally raised and

shows just cause or excuse for not originally raising them; and

5. it complies in other respects with the appellate rules insofar as

necessary under the circumstances of the case.

Id.

Moore clarified what is meant by issues that are so without merit as not to be

viable, instructed counsel that the Rael criteria must be addressed in each and every case

in which a docketing statement amendment is sought, and explained some of the reasons

for the criteria. Moore, 109 N.M. at 129, 782 P.2d at 101. Both Moore and Rael should

be read and studied before any attempt is made to amend the docketing statement in

cases on a summary calendar. Compare State v. Gallegos, 109 N.M. 55, 65, 781 P.2d

783, 793 (Ct. App. 1989), reaffirmed in Moore, in which the Court held that good cause

was not shown for an amendment when the reason the issue was not originally raised

was mere “inadvertence,” and State v. Lara, 109 N.M. 294, 296, 784 P.2d 1037, 1039

(Ct. App. 1989), where a docketing statement amendment was denied because the issue

was so without merit as not to be viable, but where the Court noted that it appeared trial

counsel had not raised the issue in the docketing statement because it had not been

preserved in the trial court, with State v. Baca, 111 N.M. 270, 804 P.2d 1089 (Ct. App.

1990), in which the Court suggested that a clerical error might be an appropriate reason

for allowing amendment where trial counsel, who was distracted at the time that he filed

the docketing statement by his representation of a client in a capital case, admitted that

he overlooked the issues that appellate counsel sought to raise. Id. at 273, 804 P.2d at

1092.

The question of timeliness of a motion to amend on a summary calendar was

further elucidated in State v. Smith, 102 N.M. 350, 695 P.2d 834 (Ct. App. 1985),

overruled on other grounds by Gillespie v. State, 107 N.M. 455, 456, 760 P.2d 147, 148

(1988). There, upon a receipt of a calendar notice for summary affirmance, defendant

filed a memorandum in opposition and a motion to amend. Smith, 102 N.M. at 352, 695

P.2d at 836. The motion to amend was granted and summary affirmance was again

proposed. Id. Defendant filed another motion to amend, seeking to raise an issue

neither raised in the original docketing statement nor in the first motion to amend. Id.

The Court denied the second motion to amend on grounds of untimeliness because the

rules do not contemplate multiple motions to amend the docketing statement. Id. at 353,

695 P.2d at 837. Rather, all proposed amendments should be stated in the first motion

to amend. See Ramming, 106 N.M. at 43, 738 P.2d at 915.

There is an exception to some of the foregoing rules for matters that may be

raised for the first time on appeal. One example is the constitutionality of a statute.

State v. Aranda, 94 N.M. 784, 787, 617 P.2d 173, 176 (Ct. App. 1980). Others are

certain types of fundamental error. See State v. Coates, 103 N.M. 353, 356 n.1, 707

P.2d 1163, 1166 n.1 (1985), overruled on other grounds by State v. Brule, 1999-

NMSC-026, ¶ 3, 127 N.M. 368, 981 P.2d 782, where issues of failure to amend the

criminal information to conform to the bind-over order and prosecutorial vindictiveness

were found to involve fundamental rights to due process; State v. Sanchez, 98 N.M. 781,

782, 652 P.2d 1232, 1233 (Ct. App. 1982), where the issue of ineffective assistance of

counsel was not listed in the docketing statement; and State v. Hughes, 108 N.M. 143,

151, 767 P.2d 382, 390 (Ct. App. 1988), where an untimely motion to amend raised a

double jeopardy issue. On the other hand, the giving of lesser-included offense

instructions is not the type of issue that can be raised for the first time on appeal. State

v. Hernandez, 95 N.M. 125, 126, 619 P.2d 570, 571 (Ct. App. 1980).

While it is true that the Court may address fundamental and jurisdictional issues

on its own motion and thus one can question whether a docketing statement amendment

is even necessary in that situation, Moore states that all Rael criteria should be addressed

in each and every case because argument on the Rael criteria helps the Court assess

whether the issue is of the sort that may be raised without procedural formalities.

Moore, 109 N.M. at 128-29, 782 P.2d at 100-01.

C. DOCKETING STATEMENT AND CALENDARING -

PROCEDURAL MATTERS

If a docketing statement cannot be timely filed, the district court has no

jurisdiction to extend the time for filing it. Only the appellate court may extend the time

for filing the docketing statement. State v. Brionez, 90 N.M. 566, 567, 566 P.2d 115,

116 (Ct. App. 1977).

The Court in Brionez also decided that a timely docketing statement is one filed

on or before the tenth day following the filing of a notice of appeal. Id. at 568, 566 P.2d

at 117. (Brionez was decided under former appellate rules with ten-day rather than

thirty-day filing time.) The three-day mailing rule, Rule 12-308(B), did not apply

because it only applies when something is served on a party by mail, which service then

triggers the time running for what the party must do. Brionez, 90 N.M. at 568, 566 P.2d

at 117. Trujillo v. State, 90 N.M. 666, 667, 568 P.2d 192, 193 (1977), appears

inconsistent with Brionez, insofar as application of the three-day mailing rule is

concerned. However, one can view the cases consistently because the triggering event

in Brionez was the filing of the notice of appeal performed by the same person required

to file the docketing statement, whereas in Trujillo it was the Court’s calendar

assignment, usually mailed to counsel. The current rules clarify matters by stating that

memoranda in opposition are due within twenty days of service of the calendar notice.

Rule 12-210(D)(3). Also, the rules specifically state that the three-day mailing rule does

not apply, unless the calendar notice is mailed. Rule 12-210(A).

In cases that have been assigned to the summary calendar, the parties opposing

summary disposition often argue that theirs are cases of first impression, necessitating

a formal opinion, and thereby precluding disposition summarily. Despite the fact that

approximately two dozen formal opinions had issued from summary cases, it was not

until Garrison v. Safeway Stores, 102 N.M. 179, 180, 692 P.2d 1328, 1329 (Ct. App.

1984), that the Court expressly approved of this procedure. The Court therein set forth

the standard that, if it believed the application of legal principles to the undisputed facts

of the case to be clear, then the case was appropriate for summary disposition. Id.

Similar holdings are found in State v. Mondragon, 107 N.M. 421, 424, 759 P.2d 1003,

1006 (Ct. App. 1988); State v. Johnson, 107 N.M. 356, 357-58, 758 P.2d 306, 307-08

(Ct. App. 1988); and Arias v. AAA Landscaping, 115 N.M. 239, 241, 849 P.2d 382, 384

(Ct. App. 1993).

D. DOCKETING STATEMENT AND CALENDARING -

FACTS AND ISSUES: LEGAL CALENDAR

As far as the facts on a legal calendar are concerned, the Court in State v. Pohl,

89 N.M. 523, 524, 554 P.2d 984, 985 (Ct. App. 1976), held that when a case is assigned

to the legal calendar and there is no objection to the recitation of the facts, the facts

recited in the docketing statement become the facts of the case. State v. Clark, 89 N.M.

695, 696, 556 P.2d 851, 852 (Ct. App. 1976), and State v. Rivera, 92 N.M. 155, 156, 584

P.2d 202, 203 (Ct. App. 1978), followed Pohl.

As noted above, the issues presented for review used to be limited to those raised

in the docketing statement. See State v. Alderete, 88 N.M. 619, 620, 544 P.2d 1184,

1185 (Ct. App. 1976), for a case applying this rule to the legal calendar. Because the

briefing rule now allows argument on any issues regardless of the docketing statement,

the question arises whether new issues can be raised on a legal calendar. Because there

is no transcript, Rule 12-210(C)(1), and because it will be unlikely that the docketing

statement will contain facts not relevant to the issues raised in the docketing statement,

there will probably not be any cases where new issues are sought to be raised in cases

on the legal calendar.

Another question that could arise in cases assigned to a legal calendar concerns

whether the docketing statement contains sufficient facts for an appellee to raise issues

not raised by appellant for the purpose of affirming the judgment. Because the Court

decided cases such as Alderete on a legal calendar, it had no transcript to review;

therefore, the Court was unable to determine if the appeal might be resolved by

application of the settled principle that the trial court will be affirmed if right for the

wrong reason. If that principle could apply to a case assigned to a legal calendar, it

should probably be immediately called to the Court’s attention.

E. DOCKETING STATEMENT AND CALENDARING -

FACTS: GENERAL CALENDAR

State v. Calanche, 91 N.M. 390, 392, 574 P.2d 1018, 1020 (Ct. App. 1978), is the

seminal case dealing with facts established by the docketing statement where a transcript

is also involved. Where a trial transcript is not authorized (summary or legal calendar),

unchallenged factual recitations in the docketing statement are the facts of the case.

Where a transcript is authorized (general calendar), the facts in the transcript are the

facts of the case. Thus, a transcript will override factual assertions in a docketing

statement. Udall v. Townsend, 1998-NMCA-162, ¶ 8, 126 N.M. 251, 968 P.2d 341; see

also In re Application of Metro. Invs., Inc., 110 N.M. 436, 440, 796 P.2d 1132, 1136

(Ct. App. 1990) (appellate court will strike portions of the docketing statement not

supported by the record). Similarly, material attached to the docketing statement that

is not part of the record will not be considered. State v. Lucero, 90 N.M. 342, 345, 563

P.2d 605, 608 (Ct. App. 1977). Although Calanche was decided on a limited calendar,

that calendar has since been abolished, having been replaced by the general calendar.

There will be few principles applicable to the limited calendar that will not now apply

to the general calendar that replaced it.

State v. Padilla, 95 N.M. 86, 619 P.2d 190 (Ct. App. 1980), should be noted at

this point. There, the docketing statement asserted that the defendant testified at trial.

Id. at 87, 619 P.2d at 191. The testimony was not, however, included in the transcript.

Id. The issue raised by Padilla required review of all evidence produced at trial, but

because his testimony was not before the appellate court, that Court affirmed the trial

court for lack of a record. Id. at 87-88, 619 P.2d at 191-92. It is unclear why the Court

accepted Padilla’s docketing statement assertion that he had testified at trial. It is further

unclear whether the case stands for the proposition that a complete transcript is always

required whenever review of the entire proceedings is appropriate, e.g., on search and

seizure issues or issues that may call for a harmless error analysis. However, later cases

cite Padilla for the sweeping proposition that, “it is the appellant’s responsibility to

provide the [C]ourt with the record on appeal, and when a record is incomplete, this

[C]ourt assumes the missing portions would support the trial court’s determination.”

Eldridge v. Aztec Well Servicing Co., 105 N.M. 660, 662, 735 P.2d 1166, 1168 (Ct. App.

1987). Section H also discusses appellants’ responsibilities in regard to the record.

F. DOCKETING STATEMENT AND CALENDARING -

FACTS: SUMMARY CALENDAR

The summary calendar proceeds on the assumption that the facts recited in the

docketing statement are the facts of the case. On these facts, if the case may be decided

on the basis of settled legal principles, it is assigned to the summary calendar. Taylor

v. Van Winkle IGA Farmer’s Market, 1996-NMCA-111, ¶ 1, 122 N.M. 486, 927 P.2d

41. If the party adversely affected by the calendar assignment disputes facts or wishes

to add further facts, this may be done in a memorandum in opposition as there is no

provision in the appellate rules for a response to a docketing statement. However,

parties may not speculate about facts to raise issues the trial transcript might develop or

support. State v. Roybal, 100 N.M. 155, 157, 667 P.2d 462, 464 (Ct. App. 1983).

In Maldonado v. State, 93 N.M. 670, 672, 604 P.2d 363, 365 (1979), the Court

of Appeals had summarily affirmed an issue dealing with allegedly inadmissible

evidence before the grand jury. Because this was not an issue for this Court’s review,

the facts were accepted and the Supreme Court affirmed. Id. State v. Rhea, 94 N.M.

168, 608 P.2d 144 (1980), appeared to severely limit the use of the summary calendar.

However, Rhea was itself severely limited in State v. Olloway, 95 N.M. 167, 168, 619

P.2d 843, 844 (Ct. App. 1980).

Two Supreme Court cases respectively approved and disapproved of the Court

of Appeals’ use of the summary calendar under the facts of those cases. State v.

Sisneros, 98 N.M. 201, 202, 647 P.2d 403, 404 (1982), involved a plea bargain with an

alleged promise of an illegal sentence. The Court of Appeals accepted the docketing

statement assertion that the promise was made by the prosecutor and relied upon by

defendant. Id. The case was assigned to the summary calendar with summary reversal

proposed. Id. The state responded, asserting that the facts were not correct and urging

a calendar reassignment so that it could be determined whether the written plea bargain

contained this alleged promise. Id. The Supreme Court held that the state’s response

did not show cause why there should not be a summary reversal on this issue. Id. “The

opposing party to summary disposition must come forward and specifically point out

errors in fact and in law.” Id.; see Hennessy, 1998-NMCA-036, ¶ 24; State v. Greg R.,

104 N.M. 778, 779, 727 P.2d 86, 87 (Ct. App. 1986).

At issue in State v. Anaya, 98 N.M. 211, 212, 647 P.2d 413, 414 (1982), was the

sufficiency of the evidence to sustain a charge of second degree murder. The Court of

Appeals summarily reversed because the factual recitation in the docketing statement

showed self-defense. Id. The state’s memorandum in opposition opposed the reversal

and pointed out additional facts which cast doubt on the self-defense claim. Id. The

Supreme Court appeared disturbed by the summary reversal of a jury verdict on grounds

of sufficiency of the evidence and held that the jury verdict, together with the additional

facts provided by the state, required a reassignment to a nonsummary calendar. Id. at

212-13, 647 P.2d at 414-15.

In the same vein, the Supreme Court decided that the sufficiency of the evidence

in other cases could not be adequately reviewed except on a limited or general calendar.

State v. Leal, 103 N.M. 299, 299-300, 706 P.2d 510, 510-11 (1985); Garcia Lopez v.

State, 107 N.M. 450, 450, 760 P.2d 142, 142 (1988). However, the Court of Appeals

does decide many cases raising sufficiency of the evidence as an issue on the summary

calendar. See Udall, 1998-NMCA-162, ¶ 3. The standard used is whether, in the

Court’s opinion, the recitation of facts in the docketing statement shows that the

evidence was sufficient. State v. Sheldon, 110 N.M. 28, 28, 791 P.2d 479, 479 (Ct. App.

1990). This is a judgment call, on which different judges on the appellate courts are

bound to occasionally differ. Thus, for example, in Sheldon, both the Court of Appeals

and Supreme Court believed the docketing statement was sufficient and the case could

be decided summarily. On the other hand, in Garcia Lopez, the Court of Appeals

believed the docketing statement was sufficient while the Supreme Court did not. 107

N.M. at 451, 760 P.2d at 143. What this means is that opposition to a summary calendar

should probably be argued on the facts of the particular case, rather than on the blanket

proposition that sufficiency of the evidence issues should never be decided on the

summary calendar. However, a mere suggestion that the statement of facts in the

docketing statement may be deficient does not justify assignment to the general

calendar. State v. Charlton, 115 N.M. 35, 37, 846 P.2d 341, 343 (Ct. App. 1992) (where

there were no allegations that there were relevant facts of which the court was unaware).

The summary calendar was challenged on due process grounds in Ibarra, 116

N.M. 486, 864 P.2d 302. The Court of Appeals reaffirmed its prior holding in Sheldon

that appeals challenging the sufficiency of the evidence to support a conviction can be

disposed of on the summary calendar when the docketing statement and memoranda in

response to the calendar notice provide sufficient undisputed facts for review of the

issues. Ibarra, 116 N.M. at 489, 864 P.2d at 305. The Court of Appeals further held

that the New Mexico summary calendar system does not violate the Fourteenth

Amendment due process clause. Id.

G. BRIEFING - PROCEDURAL MATTERS RELATING TO

CALENDARING

As noted above, in One 1984 Pontiac 6000, 111 N.M. at 90, 801 P.2d at 672, the

Court of Appeals held that in cases reassigned from the summary to a nonsummary

calendar, all issues properly raised during the summary calendaring process are revived

and may be briefed, regardless of whether they would have been deemed abandoned had

the case been decided summarily.

A related issue is whether it is necessary to fully brief all issues a party wants

raised when counsel feels these issues were adequately addressed during the summary

calendaring process. In State v. Urban, 108 N.M. 744, 745, 779 P.2d 121, 122 (Ct. App.

1989), the Court of Appeals addressed the merits of issues, that were simply restated in

the brief in chief in a case reassigned to a nonsummary calendar, by affirming for the

reasons stated in the calendar notice. However, the later case of State v. Aragon, 109

N.M. 632, 634, 788 P.2d 932, 934 (Ct. App. 1990), refused to consider issues restated

in the brief, incorporating by reference prior arguments made while the case was on a

summary calendar. The reasons given for this are that it is unfair to expect counsel for

the appellee and the Court to wade through the entire Court of Appeals file looking for

appellant’s contentions and it could allow violations of the page limits on briefs. When

a case is reassigned to a nonsummary calendar, all the parties’ contentions should be

contained in one set of manageable briefs as provided for in Rule 12-213. Both the

Court of Appeals and Supreme Court continue to follow the practice of requiring that

all of the parties’ contentions be raised in the briefs. State v. Clark, 1999-NMSC-035,

¶ 3, 128 N.M. 119, 990 P.2d 793; United Nuclear Corp. v. State ex rel. Martinez, 117

N.M. 232, 233, 870 P.2d 1390, 1391 (Ct. App. 1994).

H. RULE VIOLATIONS

Shortly after the rules allowing calendaring were first adopted in 1975, the Court

of Appeals utilized Rule 12-312 to dismiss cases for what appeared to be technical rule

violations. A series of Supreme Court cases limited dismissals for rule violations to

extreme cases, as expressly provided in the rule. The proper remedy now for technical

violations is to hold the offending attorney in contempt. Vigil v. State, 89 N.M. 601,

602, 555 P.2d 901, 902 (1976); Linam v. State, 90 N.M. 302, 303, 563 P.2d 96, 97

(1977); Olguin v. State, 90 N.M. 303, 305, 563 P.2d 97, 99 (1977); Eller, 90 N.M. at

554, 566 P.2d at 103. The Court of Appeals, however, did dismiss State v. Laran, 90

N.M. 295, 296-96, 562 P.2d 1149, 1149-50 (Ct. App. 1977), which involved both the

attorney’s failure to timely order the transcript and, perhaps more significantly, his

failure to appear at an order to show cause hearing. In Martinez v. Roscoe, 2001-

NMCA-083, ¶¶ 1-2, 131 N.M. 137, 33 P.3d 887, the Court of Appeals dismissed an

appeal filed by a non-attorney individual on behalf of a corporation of which he was the

manager. An appellant opposed the dismissal on the basis that Rule 12-312 did not give

this reason as a ground for dismissal. Id. ¶ 13. The Court pointed out that it had

dismissed numerous appeals on grounds not specifically listed in Rule 12-312. Id.

In In re Avallone, 91 N.M. 777, 778, 581 P.2d 870, 871 (1978), the Supreme

Court affirmed an order of the Court of Appeals holding counsel in contempt and fining

him $250 for violations of the rules regarding transcripts. The Supreme Court, in an

original disciplinary proceeding, has held attorneys in contempt and fined them for

failing to file a timely docketing statement in a criminal case. In re Palafox, 100 N.M.

563, 564, 673 P.2d 1296, 1297 (1983). In State v. Baca, 92 N.M. 743, 745, 594 P.2d

1199, 1201 (Ct. App. 1979), the Court of Appeals dismissed the state’s appeal because

it considered the state’s three-month delay in beginning the required procedures for

ordering the transcript to be extreme. The Court noted that it was doubtful whether the

same considerations of leniency applicable to a criminal defendant as appellant would

be applicable to the state as appellant. Id. The case was not, however, decided on this

ground, and that statement has since been called into question. See State v. Alingog. 116

N.M. 650, 654, 866 P.2d 378, 382 (Ct. App. 1993), rev’d on other grounds, 117 N.M.

756, 877 P.2d 562 (1994).

The foregoing cases dealt mainly with timeliness and the burden on the appellant

to take steps to insure that his appeal progressed. A number of cases have dealt with rule

violations which affect the ability of the Court to understand and decide the case. The

Court in State v. Reese, 91 N.M. 76, 80, 570 P.2d 614, 618 (Ct. App. 1977), stated that

it would refuse to consider a party’s contention where the citations to the transcript were

sparse and improper. In State v. Lovato, 94 N.M. 780, 782, 617 P.2d 169, 171 (Ct. App.

1980), however, the Court reached the merits of the party’s contentions despite the same

rule violation. See also State v. Sparks, 102 N.M. 317, 319, 694 P.2d 1382, 1384 (Ct.

App. 1985); but see State v. McCall, 101 N.M. 616, 630-31, 686 P.2d 958, 972-73 (Ct.

App. 1983), reversed on other grounds, 101 N.M. 32, 677 P.2d 1068 (1984). The Court

of Appeals has refused to consider a challenge to the sufficiency of the evidence where

the appellant failed to include the substance of all the evidence bearing upon a

proposition. See Maloof v. San Juan County Valuation Protests Bd., 114 N.M. 755, 759,

845 P.2d 849, 853 (Ct. App. 1992). The Court of Appeals has held that failure to

comply with Rule 12-213(A)(3), requiring a summary of proceedings with citation to

the record, can result in affirmance of challenges to the sufficiency of the evidence.

Martinez v. Southwest Landfills, Inc., 115 N.M. 181, 184-86, 848 P.2d 1108, 1111-13

(Ct. App. 1993). The Court of Appeals continues to hold that the failure to include the

substance of evidence bearing on a proposition can result in a finding that the party has

waived the contention. Murillo v. Payroll Express, 120 N.M. 333, 338, 901 P.2d 751,

756 (Ct. App. 1995).

More recently, the Court of Appeals dismissed three companion cases due to the

failure of appellant’s counsel to file a brief that complied with Rule 12-213(A)(4), as the

brief failed to include citations to the record in support of factual assertions contained

in the brief. See Martinez v. State ex rel. Taxation and Revenue Dep’t, 1999-NMCA-

103, ¶¶ 1, 5-6, 127 N.M. 600, 985 P.2d 770. Although the Court held a contempt

hearing in Martinez, the attorney representing the Motor Vehicle Division (MVD) of the

New Mexico Taxation and Revenue Department was not held in contempt because the

Court determined that there were extenuating circumstances and the underlying problem

was overwork of the attorney assigned to handle MVD cases. Id. ¶ 3. Nevertheless, the

Court of Appeals concluded that

dismissal is the only responsible sanction in this case. To strike the brief

but consider the appeal would require this Court to do the Department’s

work. To order the Department to file a new brief would be too mild a

deterrent to prevent a recurrence, and such an order would not be fair to

the appellees. We are not in the practice of providing appellants with

multiple opportunities to submit a persuasive brief.

Martinez, 1999-NMCA-103, ¶ 5. Although dismissal of a case for failure to follow the

Rules of Appellate Procedure is a severe sanction, the Martinez case illustrates that the

Court of Appeals will use this sanction in cases it deems appropriate. See also Udall,

1998-NMCA-162, ¶ 8 (dismissing a pro se appellant’s appeal for his refusal to file a

brief-in-chief).

The Supreme Court in In re Chakeres, 101 N.M. 684, 685, 687 P.2d 741, 742

(1984), disciplined counsel for making false and misleading statements of fact in his

brief to the Court of Appeals by a fine of $1,000 and costs. See also In re Robert

Richards, Esq., ¶¶ 17-18, 1997-NMSC-035, 123 N.M. 579, 943 P.2d 1032 (publically

censuring attorney for making false statement of fact in his brief). In State v. Fulton, 99

N.M. 348, 350, 657 P.2d 1197, 1199 (Ct. App. 1983), trial counsel was ordered to show

cause why he should not be held in contempt for dereliction in his conduct as an officer

of the court. Trial counsel’s conduct offended the Court in two ways. First, relying on

a provision which tolls the time for taking an appeal, he delayed for some months before

proceeding with his client’s appeal. Id. Second, he omitted material facts from his

docketing statement. Id. The Court has since indicated that it will sanction attorneys

if a case is assigned to the general calendar and the transcript reveals that a party

misrepresented the record in the docketing statement. Udall, 1998-NMCA-162, ¶ 4.

Another case dealing with material facts is Thornton v. Gamble, 101 N.M. 764, 769, 688

P.2d 1268, 1273 (Ct. App. 1984), clarifying the rule that, since the appellate court

reviews evidence in the light most favorable to the decision below, the docketing

statement should recite any evidence supporting the trial court’s findings.

In another case involving both the non-filing of a docketing statement and the

Court’s inability to understand and decide the case, the Court ordered trial counsel to

show cause why he should not be held in contempt for failing to file a docketing

statement in an appeal which trial counsel felt had no merit. State v. Talley, 103 N.M.

33, 38, 702 P.2d 353, 358 (Ct. App. 1985). The docketing statement had not been filed

and the Court had earlier ordered trial counsel to show cause why he should not be held

in contempt for his failure to file it. Id. Trial counsel responded that he believed he was

under no obligation to file it, as it was his opinion that the appeal was frivolous. Id.

Further, it was trial counsel’s opinion that the obligation in such a case was on the

appellate court to order and review the record, pursuant to Franklin, 78 N.M. 127, 428

P.2d 982. Talley, 103 N.M. at 38-39, 702 P.2d at 358-59. In a published order, the

Court of Appeals again ordered that counsel show cause why he should not be held in

contempt. Id. at 39, 702 P.2d at 359. The Court explained that Franklin was decided

in the context of Rules of Appellate Procedure that contemplate a verbatim transcript of

proceedings. Talley, 103 N.M. at 39, 702 P.2d at 359. The New Mexico Rules of

Appellate Procedure do not now contemplate such a transcript. Id. Thus:

[r]eading Franklin and Rule [12-208] together, it is obvious that trial

counsel’s responsibility in a case where he believes the appeal is

frivolous, is nonetheless to prepare a docketing statement of sufficient

completeness to afford adequate appellate review. . . . This means that

counsel should state the contentions advanced by a defendant. . . [and]

should also include in the docketing statement a statement of all facts

material to those contentions. . . .

Talley, 103 N.M. at 39, 702 P.2d at 359. The Court affirmed the Talley rules in State

v. Boyer, 103 N.M. 655, 658, 712 P.2d 1, 4 (Ct. App. 1985).

Appellate practitioners need to be aware that the appellate courts may either hold

them in contempt and fine them or dispose of their issues adversely based on their

violations of appellate rules. State ex rel. Educ. Assessments Sys. v. Coop. Educ. Servs.

of N.M. Inc., 110 N.M. 331, 333, 795 P.2d 1023, 1025 (Ct. App. 1990). In addition, the

Court may decide to refer offending attorneys to disciplinary counsel. See Garcia v.

City of Albuquerque, 99 N.M. 746, 750, 663 P.2d 1203, 1207 (Ct. App. 1983) (referring

plaintiff’s attorney to disciplinary counsel because of a false statement of facts in his

brief).

4. EXPEDITED BENCH DECISION PROGRAM

In March of 1993, the Court of Appeals initiated an experimental program called

the expedited bench decision program. The program was formally adopted and

expanded by order of the Court of Appeals in October of 1995. See In the Matter of the

Court of Appeals Caseload, No. 1-21 (filed October 17, 1995) (describing the expedited

bench decision program). This order is attached as an appendix in Rosen v. Lantis,

1997-NMCA-033, 123 N.M. 231, 236, 938 P.2d 729, 734 (Ct. App. 1997), and State v.

Curley, 1997-NMCA-038, 123 N.M. 295, 300, 939 P.2d 1103, 1108.

Pursuant to the expedited bench decision program, cases are assigned to the

program at the time of calendaring a case to the general or legal calendar, or by motion

of any party or parties. Any case on the Court’s docket may be assigned to this program.

Parties may file written objections to their case being assigned to the program; however,

the decision as to whether the case shall remain in the program is made by the Court.

Once a case is assigned to this program, transcript and exhibit preparation

proceeds under the usual Rules of Appellate Procedure. The key differences between

cases assigned to the expedited bench decision program and cases assigned to the

general calendar are as follows. Under the expedited bench decision program the

briefing time is 20 days versus 45 days for the major briefs, and there is a 20-page versus

35-page limit for major briefs, and a 10-page versus 15-page limit for reply briefs. Once

the case is briefed, it is expedited and submitted to a panel for decision at the Court’s

next available submission date. Every case assigned to this program is set for oral

argument and the panel decides the case from the bench after oral argument, unless it is

removed from the program by the Court because of the importance of the issues. See

Curley, 1997-NMCA-038, ¶ 1. A brief written opinion is filed before 5:00 p.m. the next

business day, but not later than seven days after oral argument, unless the case is

removed from the program after oral argument. Even if the case is removed from the

program, it is still given the highest priority and a decision is rendered at the earliest

possible date. This program is oftentimes used for cases where a transcript review is

necessary to decide the issues raised, but the issues are not unique or complex. Judges’

views about the efficiency of this program vary, in light of the time it can take parties

and judges to thoroughly prepare for oral argument. Thus, the use of the program varies

among the judges. A party should consider requesting that a case be assigned to this

program if time is of the essence, and having a fast decision is essential in the case.

CONCLUSION

Docketing and calendaring of cases in the New Mexico Court of Appeals is a

unique and interesting, but not so simple, process. Therefore, it is essential that

practitioners review the relevant appellate rules and case annotations when handling an

appeal before the Court of Appeals. The Rules of Appellate Procedure are designed to

give direction and guidance to attorneys regarding how to ensure that their appeal

proceeds quickly, efficiently, and appropriately through the appellate courts. A key

requirement is that the factual recitation contained in any pleading filed be specific,

accurate, and complete. Pleadings should also be filed within the time limits set out in

the rules, or extensions of time should be sought from the appellate court before the time

deadline has run. Familiarity and compliance with the Rules of Appellate Procedure

will ensure that your appeal proceeds as smoothly as possible.