CYFD part of ‘groundbreaking’ collaborative settlement

New Mexico’s Children Youth and Families Department along with the state’s Human Services Department settled in federal court last week with a group of plaintiffs that include children in foster care. The suit alleged that the state’s foster program was severely lacking in services and resources. 

Both CYFD Secretary Brian Blalock and the plaintiff’s legal team are touting the settlement agreement as the first of its kind as it incorporates changes to the system through a collaborative effort. 

Kathryn Eidmann, with national pro bono law firm Public Counsel, is part of the plaintiff’s legal team. Eidmann called the collaborative settlement agreement “groundbreaking and the first of its kind in the nation.”

“[The agreement] centers the impact that trauma has on young people in the foster system and designs a system that is trauma responsive at every stage and every step of the process,” Eidmann said. “That truly does make New Mexico a national leader and a national model that other reformers in this area can look to as they think about reforming their own system to better meet the needs of children in care.”

The settlement stipulates a time table and benchmarks for changes to the state’s foster care program. For example, by the end of this year, the state will ensure no children are housed in hotels or state offices.

A balance between liberty and safety during a pandemic

Current state restrictions, and more looming, due to the emergence of COVID-19 in New Mexico raises the question for some people: Is this legal? Since Gov. Michelle Lujan Grisham declared an emergency earlier this month, she has ordered purchasing restrictions, limited group gatherings and ordered restaurants to limit service to take-out only. 

While at least one New Mexico scholar and the New Mexico American Civil Liberties Union agree that the governor’s actions can be justified, an Albuquerque attorney does not and has said he is working towards challenging the order in court. 

Matthew Simpson, who teaches political theory at the University of New Mexico, said there’s a balance in U.S. government between public safety and personal freedoms, and in times of crisis, safety usually wins.  

“The measures that might be best for promoting people’s well being isn’t really compatible with maximizing their liberties and so government officials have to try to balance those two and have to weigh them against each other,” Simpson said. “I think at the end of the day protection of life has to take precedence, and usually does take precedence, over the protections of liberty, just because you can’t have liberty if you’re not alive.”

Simpson added that even though New Mexicans are currently restricted from physically gathering in groups of more than ten, their right to assemble is arguably not being violated. “The government isn’t saying you can’t talk to people about your common concerns, they’re just saying you can’t engage in these behaviors that are going to be vectors for this deadly disease,” Simpson said. 

But that doesn’t mean putting public safety above rights always works out, he said. The Supreme Court sided with President Franklin Delano Roosevelt when faced with whether U.S. Japanese internment camps during World War II violated personal rights. 

“I think with the benefit of hindsight, almost everybody thinks that that was just a fundamental violation of rights,” Simpson said.

Bernalillo County DA to halt in-person hearings to protect attorneys from COVID-19

Starting Monday there will be significantly fewer prosecutors in Bernalillo County’s district court. Raul Torrez, the 2nd Judicial District Attorney, issued a letter to the state Supreme Court Thursday notifying justices that Torrez’s staff will not appear in person to any proceedings that can be done over video conferencing.  

“As of Monday, March 23, 2020, my attorneys and staff will not appear in person for any hearings which can be constitutionally conducted by video conference technology,” Torrez wrote. 

His announcement came days after the state Supreme Court added additional restrictions for court proceedings amid a growing number of positive COVID-19 tests in the state. 

In his letter, Torrez said his office took part in a test video conference with public defenders and a state district court judge. He argued that the test was proof that current technology will allow courts to preserve constitutional rights and public safety. 

“Unfortunately, despite viable technological alternatives, in-person hearings continue to be set for routine matters that do not legally require the physical presence of any of the parties involved,” Torrez wrote. “Courtrooms continue to gather too many people into confined spaces, unnecessarily placing my employees, their families, defendants, court personnel, and the entire community at risk.” 

Torrez’s letter echoed concerns he and others in the justice system sent to the Supreme Court last week. Both the state’s District Attorney’s Association and the Law Offices of the Public Defender issued their own letters to the Supreme Court.

ABQ council approves public health emergency proposal

The Albuquerque City Council voted Monday night 6-3 to approve a measure that would allow the city’s mayor to declare a public health emergency and receive federal and state funds. The measure would also give authority to the mayor to limit large gatherings and limit the amount of supplies consumers purchase during a public health crisis. 

The sponsor of the proposal, Council President Pat Davis, said he began working on the measure last month to update the city’s emergency provision law that has remained mostly the same since the late 1960s.  

“It was clear that we needed an update,” Davis said. 

During his opening statement on the legislation, Davis said the city law that allows a mayor to declare a state of emergency was developed during a time of war protests that often led to violence and riots.  

But the measure was met by heavy scrutiny by Councilor Brook Bassan, who offered 10 amendments that she said were aimed at being less restrictive to citizens. Only three passed. Bassan referenced a famous quote from Benjamin Franklin regarding giving up rights in the name of safety and raised concerns that the proposal might go too far. 

“We are considering surrendering our freedoms,” Bassan said. The overarching theme from Bassan was that even if social distancing and limiting large gatherings is needed to stop the spread of a disease, it doesn’t need to be dictated by city leaders. 

“Even though we need to have these measures in place, even though we need to be able to be capable of enacting these laws to protect our society, guess what?

Cannabis legalization bill passes first committee on party lines

A cannabis legalization bill passed its first committee Tuesday. The Senate Public Affairs voted 4-3 along party lines to pass SB 115 after hours of public comment and debate between lawmakers. 

Even though a number of people spoke against legalization, they were largely outnumbered by those in favor of it. 

For the most part, those who spoke out in opposition said they were concerned about safety and health issues like driving while impaired and addiction. 

The bill’s sponsor and the committee chair, Sen. Jerry Ortiz y Pino, D-Albuquerque, did not present the bill. Instead, legalization proponent and medical cannabis patient Sen. Jacob Candelaria, D-Albuquerque, took the lead on selling the bill to the committee

Candelaria answered some concerns about testing drivers for cannabis use. There is no test for levels of cannabis like there is for alcohol. “Just because there is no test, doesn’t mean people won’t get caught for DWI,” Candelaria said.

Cannabis legalization looms large in session

The 2020 legislative session starts tomorrow and besides the standard 30-day budgetary issues, many eyes are on cannabis and whether this is the year it becomes legal to use recreationally. Last week, two lawmakers filed bills aimed doing just that. 

Rep. Javier Martinez and Sen. Gerald Ortiz y Pino, both Albuquerque Democrats, are cosponsors of the Senate version of the Cannabis Regulation Act. Martinez is the sponsor of the House version of the bill. 

The bills are largely based on recommendations from a legalization work group and a legalization bill that failed to get to the governor’s desk last year. Both bills are 175 pages long and prescribe how recreational should be taxed, age limits for possessing or consuming cannabis and which state entities will be involved. 

Gov. Michelle Lujan Grisham announced last year that she would support a comprehensive legalization bill and added to “the call” this year. It is nearly unheard of for legislation to make it to the governor’s desk without some amendments, so these two bills will likely change in the next 30 days, but here are some key points of the bills. 

Possible heartburn

Various different lawmakers have tried to pass recreational legalization bills over the years, but 2019 marked the farthest in the process a proposal made it in recent history.

DOH set to finalize rules on cannabis consumption areas, new testing standards

New Mexico is one step closer to establishing sanctioned, legal areas for medical cannabis patients to use their medicine. 

The Department of Health’s Medical Cannabis Program held a public hearing Thursday to hear comments from the public regarding department rule changes. Those changes include higher testing standards for cannabis producers and manufacturers, reciprocity for medical cannabis patients already enrolled in a medical program in another state and consumption areas. 

Most comments from the public were about the testing standards, but some medical cannabis patients said they would like to see more leniency on who can open a consumption area and where they can open it. 

Erica Rowland, a founding member of the Albuquerque-based cannabis producer Seven Clover, said the opportunity to open a consumption area should not be limited to those who already produced the cannabis. 

“Consumption areas should not be limited to [Licensed Non Profit Producers],” Rowland said. 

But because the state’s cannabis law is specifically written and leaves little room for interpretation, the Legislature would need to act to change consumption area requirements. After changes made during the 2019 legislative session, the Lynn and Erin Compassionate Use Act allows for consumption areas, but requires that they are owned and operated by a Licensed Non Profit Producer, effectively barring someone from starting a new business solely for cannabis consumption. 

The statute, not the proposed rule change, also requires that anyone consuming cannabis at a consumption area have a safe ride home. It’s still unclear who would be held liable for someone who leaves a consumption area and drives themselves. Medical Cannabis Program Director Dominick Zurlo said that is more of a legal question and out of the DOH’s purview. 

“One of the big issues of course is New Mexico is one of the states that has a huge issue with DUIs and we want to ensure people are able to get home safely,” Zurlo said.

Medical cannabis patient asks judge to allow cannabis on house arrest

An Albuquerque-based attorney, who also serves in the state Senate, wants a judge to weigh-in on whether those on house arrest should have access to medical cannabis. 

The attorney and state lawmaker Jacob Candelaria, on behalf of his client Joe Montaño, filed a writ of mandamus, or a request for a ruling, in state district court, asking a judge to order Bernalillo County to allow those in custody to use medical cannabis if they are part of the state’s program. 

In his court filing, Candelaria argued that Montaño has a right to “adequate and reasonable medical care” while in custody. Candelaria also argued that state law says, “Medical Cannabis shall be considered the equivalent of the use of any other medication under the direction of a physician and shall not be considered to constitute the use of an illicit substance,” and therefore his client should be allowed access to his medical cannabis. 

According to New Mexico’s Lynn and Erin Compassionate Use Act, which was updated during last year’s legislative session, medical cannabis patients are protected—with some exceptions—from discrimination for using medical cannabis. When mentioning incarceration though, the law seems open to interpretation.    

“A person who is serving a period of probation or parole or who is in the custody or under the supervision of the state or a local government pending trial as part of a community supervision program shall not be penalized for conduct allowed under the Lynn and Erin Compassionate Use Act.” NM Stat § 26-2B-10

Sen. Jerry Ortiz y Pino, D-Albuquerque, sponsored the Senate bill that added sweeping changes to the state’s medical cannabis law. He previously told NM Political Report that the custody provision was aimed at those in pretrial services or those on probation or parole, and Gov. Michelle Lujan Grisham’s office agreed. 

Now Candelaria, who is also a medical cannabis patient, is challenging that thinking with the financial help of one of New Mexico’s more prominent medical cannabis producers, which is led by one of the state’s Medical Cannabis Program’s most vocal critics.

Shifting, filling legislative spots before session starts

A legislative appointment from the Bernalillo County Commission Tuesday marked the last vacancy to be filled before the upcoming legislative session. County commissioners voted unanimously to appoint Democrat Marian Matthews to fill a vacant spot left by Democrat Rep. William Pratt after he died last month. 

Matthews, a former prosecutor and college educator, announced late last year that she planned to run for Pratt’s seat since Pratt announced he would not run for election. Pratt himself was appointed to the seat after former Rep. Larry Larrañaga died in 2018. Pratt then won the general election that November. Matthews told commissioners she would like to address Albuquerque’s crime rate. 

The special meeting was the first for newly appointed commissioner James Collie, a Democrat who was sworn in just before the meeting started.

Judge finds state senator guilty of DWI, reckless driving

A district judge found state Sen. Richard Martinez guilty of driving while intoxicated and reckless driving on Tuesday. 

This past summer, Martinez, D-Española, was driving when he hit the car of a couple waiting at a stoplight in Española. After the state senator was taken to a hospital, police arrested him for DWI and reckless driving. 

The ruling on Tuesday came at the end of a two-day bench trial where Martinez’s lawyer, David Foster, argued that the arresting officer didn’t follow protocols for field sobriety tests and that signs of impairment by Martinez could have been from a head injury sustained in the crash. 

During their closing arguments, prosecutors from the Attorney General’s Office argued that police lapel camera footage showed Martinez struggling with the sobriety tests and admitting that he had at least two alcoholic drinks that night. 

In that footage Martinez was inconsistent on how much he had to drink and about the type of drinks he had. Martinez refused any sort of breath test, and replied, “I can’t believe you’re doing this to me,” when the officer asked for his consent. Prosecutors argued that comment was a “consciousness of guilt.” 

“No one is above the law, not even a senator, not even this defendant,” one prosecutor told the judge. 

In his closing arguments, Foster criticized police for not following protocol and for inconsistencies in their reports. 

“How can you believe anything [the arresting officer] is saying?” Foster asked. 

He also criticized prosecutors for pointing out a dark spot on Martinez’s shorts that can barely be seen in the police footage. During the first day of trial, prosecutors argued that the dark spot was urine and a sign that Martinez was too intoxicated to drive a car.