NMSC Rescinds Abolishment of Spousal Privilege


Several months ago, I wrote about State v. Gutierrez, in which New Mexico became the first state to abolish the spousal privilege. Last week, the Court issued a short order retracting that ruling and ordering the Committee on the Rules of Evidence to investigate what changes, if any, should be made.

In the original opinion, the Court concluded that although some testimony had been admitted in error, that error was harmless. Accordingly, the conviction was affirmed. Although this order retracts the portion of the opinion abolishing the spousal privilege, the portion affirming Gutierrez’s conviction stands.

The fate of the spousal privilege will now be taken up by the Rules of Evidence committee. Under Rule 23-106, the Court has the power to form standing committees to assist it on drafting and revising rules, including the Rules of Evidence. The Court directed the committee to perform a comprehensive study and robust public discussion, taking into account the majority and dissent in the original opinion.

The order also contains an interesting paragraph of the Court’s treatment of motions to reconsider. Rule 12-404 allows the Court to hear such motions, and states that they can be granted on the votes of three justices. The voting justices do not have to have participated in the original opinion. That was relevant here, since two of the original Justices (Justices Maes and Clingman) were no longer on the Court, and Justice Daniels had since passed away.

Nakamura’s Dissent

Justice Nakamura dissented from the order. As the author of the original opinion, she was understandably disappointed to see it gutted. But her dissent focused on what she viewed as the improper use of Rule 12-404.

According to Justice Nakamura, “Rule 12-404(A) provides for rehearing where the movant alleges that the Court has misapprehended an issue of law or fact or has relied upon an argument not briefed by the parties.” But the Court actually used Rule 12-404 to retract an opinion in order to refer it to committee, a measure that she notes the original panel had considered and rejected. The majority did not respond to this argument.

Justice Nakamura was also concerned, probably correctly, that the Court’s use of the rule would encourage future litigants to try for second bites at the apple whenever the composition of the Court changes after an opinion is issued. This concern is no doubt justified. The cost of moving to reconsider is negligible in comparison to the time and money necessary to take a case all the way to the Supreme Court. It will almost always be worth trying.

Justice Nakamura’s last point was that such reversals generate mistrust. The result of a case should not depend greatly on which judges are on the panel. Many people already seem to believe this is a problem at the U.S. Supreme Court. Hopefully, Justice Nakamura’s fears are unwarranted, and this will not become a problem in New Mexico.

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