purposes rule in New Mexico

2023Next, 17 “because of the seriousness of criminal penalties, and because criminal punishment 18 usually represents the moral condemnation of the community, legislatures and not 19 courts should define criminal activity.” Id.; see also United States v. Simpson, 319 35 1 F.3d 81, 86 (2nd Cir. 2002) (applying the rule of lenity to sentencing guidelines 2 because one of the purposes of the rule of lenity is “to maintain the proper balance 3 between Congress, prosecutors, and courts” (internal quotation marks and citation 4 omitted)). 5 {56} Finally, in my view, the Court of Appeals’ reading of the

2023Next, 17 “because of the seriousness of criminal penalties, and because criminal punishment 18 usually represents the moral condemnation of the community, legislatures and not 19 courts should define criminal activity.” Id.; see also United States v. Simpson, 319 35 1 F.3d 81, 86 (2nd Cir. 2002) (applying the rule of lenity to sentencing guidelines 2 because one of the purposes of the rule of lenity is “to maintain the proper balance 3 between Congress, prosecutors, and courts” (internal quotation marks and citation 4 omitted)). 5 {56} Finally, in my view, the Court of Appeals’ reading of the

2016See Turner, 2015-NMCA-068, ¶ 6 ; Cordova v. Larsen, 2004-NMCA-087, ¶ 23 , 136 N.M. 87 , 94 P.3d 830 ; see also First State Bank v. Muzio, 1983-NMSC-057 , ¶ 9, 100 N.M. 98 , 666 P.2d 777 (recognizing claim preclusion in a default judgment context), overruled on other grounds by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051 , 116 N.M. 254 , 861 P.2d 935 ; Pielhau, 2013-NMCA-1 12, ¶ 8 (identifying the purposes of the claim preclusion doctrine). 2 As noted earlier in the background section, the district court appears to have ruled on issue preclusion sua sponte, and thus the parties did not have

2016See Turner, 2015-NMCA-068, ¶ 6 ; Cordova v. Larsen, 2004-NMCA-087, ¶ 23 , 136 N.M. 87 , 94 P.3d 830 ; see also First State Bank v. Muzio, 1983-NMSC-057 , ¶ 9, 100 N.M. 98 , 666 P.2d 777 (recognizing claim preclusion in a default judgment context), overruled on other grounds by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051 , 116 N.M. 254 , 861 P.2d 935 ; Pielhau, 2013-NMCA-1 12, ¶ 8 (identifying the purposes of the claim preclusion doctrine). 2 As noted earlier in the background section, the district court appears to have ruled on issue preclusion sua sponte, and thus the parties did not have

2016See Turner, 2015-NMCA-068, ¶ 6 ; Cordova v. Larsen, 2004-NMCA-087, ¶ 23 , 136 N.M. 87 , 94 P.3d 830 ; see also First State Bank v. Muzio, 1983-NMSC-057 , ¶ 9, 100 N.M. 98 , 666 P.2d 777 (recognizing claim preclusion in a default judgment context), overruled on other grounds by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051 , 116 N.M. 254 , 861 P.2d 935 ; Pielhau, 2013-NMCA-1 12, ¶ 8 (identifying the purposes of the claim preclusion doctrine). 2 As noted earlier in the background section, the district court appears to have ruled on issue preclusion sua sponte, and thus the parties did not have

2016See Turner, 2015-NMCA-068, ¶ 6 ; Cordova v. Larsen, 2004-NMCA-087, ¶ 23 , 136 N.M. 87 , 94 P.3d 830 ; see also First State Bank v. Muzio, 1983-NMSC-057 , ¶ 9, 100 N.M. 98 , 666 P.2d 777 (recognizing claim preclusion in a default judgment context), overruled on other grounds by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051 , 116 N.M. 254 , 861 P.2d 935 ; Pielhau, 2013-NMCA-1 12, ¶ 8 (identifying the purposes of the claim preclusion doctrine). 2 As noted earlier in the background section, the district court appears to have ruled on issue preclusion sua sponte, and thus the parties did not have

2016See Turner, 2015-NMCA-068, ¶ 6 ; Cordova v. Larsen, 2004-NMCA-087, ¶ 23 , 136 N.M. 87 , 94 P.3d 830 ; see also First State Bank v. Muzio, 1983-NMSC-057 , ¶ 9, 100 N.M. 98 , 666 P.2d 777 (recognizing claim preclusion in a default judgment context), overruled on other grounds by Huntington Nat’l Bank v. Sproul, 1993-NMSC-051 , 116 N.M. 254 , 861 P.2d 935 ; Pielhau, 2013-NMCA-112, ¶ 8 (identifying the purposes of the claim preclusion doctrine). 8 the apple” should the Bank be given when it has had a full and fair opportunity to litigate standing?

2016See Turner, 2015-NMCA-068, ¶ 6 ; Cordova v. Larsen, 2004-NMCA-087, ¶ 23 , 136 N.M. 87 , 94 P.3d 830 ; see also First State Bank v. Muzio, 1983-NMSC-057 , ¶ 9, 100 N.M. 98 , 666 P.2d 777 (recognizing claim preclusion in a default judgment context), overruled on other grounds by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051 , 116 N.M. 254 , 861 P.2d 935 ; Pielhau, 2013-NMCA-1 12, ¶ 8 (identifying the purposes of the claim preclusion doctrine). 2 As noted earlier in the background section, the district court appears to have ruled on issue preclusion sua sponte, and thus the parties did not have

2005Corp., 464 F.2d 444, 445 (7th Cir.1972) (discussing that the title of the case may not reflect the true dispute where a settlement has been accepted in the original action and the dispute relates to attorney fees). {16} Moffat also contends that the case of Bennett v. Kisluk, 112 N.M. 221, 224 , 814 P.2d 89, 92 (1991), instructs that an attorney seeking fees cannot be an adversary of his former client for the purposes of claim preclusion.

2005Corp., 464 F.2d 444, 445 (7th Cir.1972) (discussing that the title of the case may not reflect the true dispute where a settlement has been accepted in the original action and the dispute relates to attorney fees). {16} Moffat also contends that the case of Bennett v. Kisluk, 112 N.M. 221, 224 , 814 P.2d 89, 92 (1991), instructs that an attorney seeking fees cannot be an adversary of his former client for the purposes of claim preclusion.

2005Corp., 464 F.2d 444, 445 (7th Cir.1972) (discussing that the title of the case may not reflect the true dispute where a settlement has been accepted in the original action and the dispute relates to attorney fees). {16} Moffat also contends that the case of Bennett v. Kisluk, 112 N.M. 221, 224 , 814 P.2d 89, 92 (1991), instructs that an attorney seeking fees cannot be an adversary of his former client for the purposes of claim preclusion.

2005Corp., 464 F.2d 444, 445 (7th Cir.1972) (discussing that the title of the case may not reflect the true dispute where a settlement has been accepted in the original action and the dispute relates to attorney fees). {16} Moffat also contends that the case of Bennett v. Kisluk, 112 N.M. 221, 224 , 814 P.2d 89, 92 (1991), instructs that an attorney seeking fees cannot be an adversary of his former client for the purposes of claim preclusion.

2023According to the Baca Court, Devigne offered no 8 support for the proposition that Section 31-20-5(A) imposes a five-year cap on the 9 total probation that may be served because Devigne “stands for the principle that the 10 maximum period of probation that a district court may impose at sentencing is a total 11 of five years, . . . not that five years is the total amount of time a defendant can serve 12 on probation, regardless of the number of violations.” Baca, 2005-NMCA-001 , ¶ 18 13 (emphasis added). 14 {57} In Devigne, the defendant “was sentenced to three years imprisonment on each 15 of

2023According to the Baca Court, Devigne offered no support for the proposition that Section 31-20-5(A) imposes a five-year cap on the total probation that may be served because Devigne “stands for the principle that the maximum period of probation that a district court may impose at sentencing is a total of five years, . . . not that five years is the total amount of time a defendant can serve on probation, regardless of the number of violations.” Baca, 2005-NMCA-001, ¶ 18 (emphasis added). {57} In Devigne, the defendant “was sentenced to three years imprisonment on each of five counts.” 1981-NMC

2025See Wakeland, 2012-NMCA-021 , ¶ 16 (construing a docketing statement “liberally” for the purposes of this analysis).

2023See State v. Kerby, 2007-NMSC-014, ¶ 18 , 141 N.M. 413 , 156 P.3d 704 (determining for the purposes of waiver “that the statute of limitations is a substantive right” of a criminal defendant); Morales, 2010-NMSC-026, ¶ 13 (distinguishing between criminal and civil limitation periods and observing that criminal statutes of limitation periods “are ‘to be liberally construed in favor of a defendant because their purpose is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the [L]egislature has decided to punish by criminal sanctions

2023See State v. Kerby, 2007-NMSC-014, ¶ 18 , 141 N.M. 413 , 156 P.3d 704 (determining for the purposes of waiver “that the statute of limitations is a substantive right” of a criminal defendant); Morales, 2010-NMSC-026, ¶ 13 (distinguishing between criminal and civil limitation periods and observing that criminal statutes of limitation periods “are ‘to be liberally construed in favor of a defendant because their purpose is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the [L]egislature has decided to punish by criminal sanctions

2023See State v. Kerby, 2007-NMSC-014, ¶ 18 , 141 N.M. 413 , 156 P.3d 704 (determining for the purposes of waiver “that the statute of limitations is a substantive right” of a criminal defendant); Morales, 2010-NMSC-026, ¶ 13 (distinguishing between criminal and civil limitation periods and observing that criminal statutes of limitation periods “are ‘to be liberally construed in favor of a defendant because their purpose is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the [L]egislature has decided to punish by criminal sanctions

2023Next, “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.” Id.; see also United States v. Simpson, 319 F.3d 81, 86 (2nd Cir. 2002) (applying the rule of lenity to sentencing guidelines because one of the purposes of the rule of lenity is “to maintain the proper balance between Congress, prosecutors, and courts” (internal quotation marks and citation omitted)). {56} Finally, in my view, the Court of Appeals’ reading of the probation statutes in

2016See Turner, 2015-NMCA-068, ¶ 6 ; Cordova v. Larsen, 2004-NMCA-087, ¶ 23 , 136 N.M. 87 , 94 P.3d 830 ; see also First State Bank v. Muzio, 1983-NMSC-057 , ¶ 9, 100 N.M. 98 , 666 P.2d 777 (recognizing claim preclusion in a default judgment context), overruled on other grounds by Huntington Nat’l Bank v. Sproul, 1993-NMSC-051 , 116 N.M. 254 , 861 P.2d 935 ; Pielhau, 2013-NMCA-112, ¶ 8 (identifying the purposes of the claim preclusion doctrine). 8 the apple” should the Bank be given when it has had a full and fair opportunity to litigate standing?

2010See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496 , 745 P.2d 717 , 12 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it must appear that 13 appellant fairly invoked a ruling of the trial court on the same grounds argued in the 14 appellate court.”); see also State v. Lopez, 2008-NMCA-002, ¶ 8 , 143 N.M. 274 , 175 15 P.3d 942 (filed 2007) (stating that the primary purposes for the requirement of 16 preservation are to specifically alert the trial court to claimed error so any mistake can 17 be corrected, to allow the opposing party an opportunity to respond to the claim of 18 er

2010See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496 , 745 P.2d 717 , 12 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it must appear that 13 appellant fairly invoked a ruling of the trial court on the same grounds argued in the 14 appellate court.”); see also State v. Lopez, 2008-NMCA-002, ¶ 8 , 143 N.M. 274 , 175 15 P.3d 942 (filed 2007) (stating that the primary purposes for the requirement of 16 preservation are to specifically alert the trial court to claimed error so any mistake can 17 be corrected, to allow the opposing party an opportunity to respond to the claim of 18 er

2010See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496 , 745 P.2d 717 , 12 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it must appear that 13 appellant fairly invoked a ruling of the trial court on the same grounds argued in the 14 appellate court.”); see also State v. Lopez, 2008-NMCA-002, ¶ 8 , 143 N.M. 274 , 175 15 P.3d 942 (filed 2007) (stating that the primary purposes for the requirement of 16 preservation are to specifically alert the trial court to claimed error so any mistake can 17 be corrected, to allow the opposing party an opportunity to respond to the claim of 18 er

2010See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496 , 745 P.2d 717 , 12 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, it must appear that 13 appellant fairly invoked a ruling of the trial court on the same grounds argued in the 14 appellate court.”); see also State v. Lopez, 2008-NMCA-002, ¶ 8 , 143 N.M. 274 , 175 15 P.3d 942 (filed 2007) (stating that the primary purposes for the requirement of 16 preservation are to specifically alert the trial court to claimed error so any mistake can 17 be corrected, to allow the opposing party an opportunity to respond to the claim of 18 er

2001See Liparota, 471 U.S. at 427 , 105 S.Ct. 2084 ; State v. Mabry, 96 N.M. 317, 321 , 630 P.2d 269, 273 (1981) ("It has long been recognized in this state that it is solely within the province of the Legislature to establish penalties for criminal behavior."); cf. Batchelder, 442 U.S. at 121-22 , 99 S.Ct. 2198 (declining to apply the rule of lenity because the defendant "unquestionably violated" the applicable statute and the penalty provision "unquestionably permits five years' imprisonment for such a violation," and observing that the fact that another statute "provides different penalties for

2001See Liparota, 471 U.S. at 427 , 105 S.Ct. 2084 ; State v. Mabry, 96 N.M. 317, 321 , 630 P.2d 269, 273 (1981) ("It has long been recognized in this state that it is solely within the province of the Legislature to establish penalties for criminal behavior."); cf. Batchelder, 442 U.S. at 121-22 , 99 S.Ct. 2198 (declining to apply the rule of lenity because the defendant "unquestionably violated" the applicable statute and the penalty provision "unquestionably permits five years' imprisonment for such a violation," and observing that the fact that another statute "provides different penalties for

2001See Liparota, 471 U.S. at 427 , 105 S.Ct. 2084 ; State v. Mabry, 96 N.M. 317, 321 , 630 P.2d 269, 273 (1981) ("It has long been recognized in this state that it is solely within the province of the Legislature to establish penalties for criminal behavior."); cf. Batchelder, 442 U.S. at 121-22 , 99 S.Ct. 2198 (declining to apply the rule of lenity because the defendant "unquestionably violated" the applicable statute and the penalty provision "unquestionably permits five years' imprisonment for such a violation," and observing that the fact that another statute "provides different penalties for

2001See Liparota, 471 U.S. at 427 , 105 S.Ct. 2084 ; State v. Mabry, 96 N.M. 317, 321 , 630 P.2d 269, 273 (1981) ("It has long been recognized in this state that it is solely within the province of the Legislature to establish penalties for criminal behavior."); cf. Batchelder, 442 U.S. at 121-22 , 99 S.Ct. 2198 (declining to apply the rule of lenity because the defendant "unquestionably violated" the applicable statute and the penalty provision "unquestionably permits five years' imprisonment for such a violation," and observing that the fact that another statute "provides different penalties for

1999Similarly, we have previously held “that the issue of governmental immunity [under Section 37-1-23(A) ] is jurisdictional in nature,” Spray v. City of Albuquerque, 94 N.M. 199, 201 , 608 P.2d 511, 513 (1980), and that one of the purposes of immunity for actions based on unwritten contracts rests on the difficulty of determining, without reférence to a written instrument, whether a governmental agency is authorized to enter into the contract, see Garcia v. Middle Rio Grande Conservancy Dist., 1996-NMSC-029 , 1117, 121 N.M. 728 , 918 P.2d 7 .

1999Similarly, we have previously held “that the issue of governmental immunity [under Section 37-1-23(A) ] is jurisdictional in nature,” Spray v. City of Albuquerque, 94 N.M. 199, 201 , 608 P.2d 511, 513 (1980), and that one of the purposes of immunity for actions based on unwritten contracts rests on the difficulty of determining, without reférence to a written instrument, whether a governmental agency is authorized to enter into the contract, see Garcia v. Middle Rio Grande Conservancy Dist., 1996-NMSC-029 , 1117, 121 N.M. 728 , 918 P.2d 7 .