Passengers Liable in DWI Fatalities? Lovato case.

The Alfred Lovato case has, at least temporarily, focused attention on the legal theory of accessory liability. Right now, public enthusiasm for holding passengers responsible ranges from lukewarm to adamantly against. Attorney General King is very clear about his stance in this case.

“Our perspective on what happened is straightforward---two adult men decided they were going to get stinking drunk together; both decided they should drive despite being severely impaired; then they stopped to get snacks together; and both were in the car when they struck and killed a pedestrian. We are disappointed that the judge did not let the jury deliberate on our evidence because we believe they would have agreed with us that both men are responsible for William Tenorio’s death that tragic evening in Santa Fe," said Attorney General King. He added, “It is never a waste of time and resources to try to get justice for a man who was run over and killed by a couple of drunks.”

Lovato's acquittal on all charges is understandable but not discouraging to those who continue the fight against drunk driving in New Mexico. Why? One need only look back at our state's progress over the years to see and understand that most people's acceptance and behaviors concerning DWI have changed, albeit slowly.

In 1987 it was still legal to drive anywhere in the state with a cold beer in your lap until our 'open container' law was passed by the legislature. The public outcry contained statements like, "Hard working folks deserve a chance to unwind with a brewski on their way home..what's wrong with that?" Then in the 1990s, drive-up liquor sales were banned statewide, even though the citizens of McKinley County had the sense to ban them much earlier. Before that happened, some people measured how long it would take to drive somewhere in New Mexico by how many stops it would require to buy more booze or by how many beers they could consume along the way. Example: "Let's see...Albuquerque to Farmington? That's at least a twelve pack."

Today, more people than ever utilize a 'designated driver' or decide not to drink alcohol if they plan to drive a vehicle. DWI fatalities have steadily been dropping and driving drunk has increasingly become socially unacceptable. In short, New Mexico's acceptance of DWI has dwindled while behaviors that used to lead to DWI have changed. That is good news and something to build on for those who have consistently been working to keep our streets and highways safer for all New Mexicans.

AG Secures Two Legal Settlements to Help New Mexico Families

Attorney General Gary King officially signed New Mexico on to a landmark agreement with the nation's largest mortgage servicers to address New Mexico foreclosure abuses and fraudulent practices. The settlement provides real relief to affected New Mexico borrowers and eliminates many of the unfair practices that contributed to mortgage-related financial losses in our. The agreement does not grant any immunity from related criminal offenses and will not prevent potential New Mexico criminal prosecutions in the future. Additionally, the pact does not prevent homeowners or investors from pursuing individual, institutional, or class action civil cases against the five servicers; Bank of America, Citi, JP Morgan Chase, Ally (GMAC), and Wells Fargo.

• $1 million for the State Financial Institutions Division.New Mexico borrowers will benefit from approximately:
• $63 million in homeowner relief through loan term modifications, principal reduction, and other direct relief.
• $12.5 million for refinancing for borrowers who are underwater and current on loans.
• $16 million for state payments designated to:

a)---Payments to borrowers for mortgage servicing abuse [$4.5 million].
b)---Payments for state foreclosure prevention efforts, homeowner hotline, outreach and housing counseling [$11.7 million].

Mortgage servicer phone numbers for their customers who want to inquire about the settlement:

BofA: 1-877-488-7814

Citi: 1-866-272-4749

Chase: 1-866-372-6901

GMAC: 1-800-766-4622

Wells Fargo: 1-800-288-3212

More information will be made available as the settlement programs are implemented. For more New Mexico information on the proposed agreement:

New Mexico Attorney General’s Office: 1-800-678-1508
Information Form for NM Homeowners: nmag.gov

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INFORMATION for Investors in New Mexico 529 College Savings Programs operated by OppenheimerFunds.

Late last week Attorney General King announced that another settlement, negotiated in part by his office, has begun returning money lost by NM account holders.

In 2009 AG King began the investigation into losses related to the New Mexico 529 savings plans, along with the AGs of several other states. A settlement was reached in mid-2010 that provided New Mexico more than $67 million that was to be distributed by the state Education Trust Board. Subsequently, several separate lawsuits were filed by NM 529 plan investors that held up distribution of the settlement monies until now.

The good news is that account holders will be receiving their money as early as next month, depending on when the account holders send in their releases.
Notices to affected investors have begun to go out, accompanied by a release letter. Once those release letters are returned, the families will receive distribution funds via one of three approved methods within 40 days.

VERY IMPORTANT INFORMATION: For account holders who still have open accounts, their share will be placed into their accounts after receipt and processing of their release letter, which is being distributed with notice of the settlement. For account holders who have closed their accounts, they may choose one of three methods: (1) by re-opening a closed New Mexico 529 account; (2) by direct rollover to a qualified 529 Plan account that designated by the account holder; or (3) by check mailed directly to the account holder.

Attorney General’s Office Proposed Legislation for 2012

Attorney General King is asking the Governor to allow a number of important pieces of legislation onto the agenda for the upcoming legislative session. The list is comprised of bills that, for one reason or another, did not get heard or acted upon during the previous session. Here are a few of our proposals.

Under the category Ethics & Campaign Finance Reform, one of the bills for consideration is called “Electioneering Communications Contributions Disclosures,” previously HB 491. This bill creates campaign disclosure requirements for third parties that campaign for or against political candidates. Given recent U. S. Supreme Court decisions expanding the rights of corporations and others to engage in "electioneering", our laws should at least provide for full disclosure of where all the money is coming from.

Under the category of Civil-General Fund Recoveries; one bill addresses complicated tobacco settlement payments to the state and another deals with fraud against taxpayers. The bill we call the “Cigarette Stamp to Determine Escrow Payments,” previously SB 397, seeks to level the playing field for all cigarette manufacturers by requiring that they all pay their fair share of the health care costs their products cause in New Mexico. Representative Gail Chasey, who co-chairs the Tobacco Settlement Revenue Oversight Committee, has gone on record saying, “It is estimated that an additional $7.5 million annually would be available to the state under Senate Bill 397. That additional money could help a lot of New Mexicans who suffer from smoking related diseases.” A similar measure was vetoed last session by the Governor but we are encouraging her to reconsider this time around. And the “Fraud Against Taxpayers Act Revisions” bill, previously HB 314, amends current law to enable the Attorney General’s Office to expedite litigation in cases where the State has been defrauded.

Two of our Consumer Protection bills will be back for consideration by Legislators. The first is the Mortgage Fair Foreclosure Act, SB 1; Senator Michael Sanchez has once again agreed to sponsor our bill, which is an attempt to reform foreclosure procedures in New Mexico. The bill states, “The legislature finds it to be the public policy of New Mexico that homeowners should be given reasonable notice of the fact of and basis for an alleged default on their mortgage, apprised of all loss mitigation methods available to them in connection with their home loans prior to the loss of their home and afforded a meaningful opportunity to participate in loss mitigation to prevent the loss of homeownership.” UNM Professor Nathalie Martin has stated that in 2008, New Mexico was 36th in the nation for the number of foreclosures...now it is 11th in the nation. Currently, she says, one in every 452 Santa Fe homes and one in every 550 Albuquerque homes is in foreclosure, and about 15,000 cases are filed each year, about half in Albuquerque.

The bill we call “Regulations on Certain Loans,” previously SB 305, would address predatory lending practices involving small loans that continue to plague low income New Mexicans, many of whom are often victimized by exorbitant interest rates and never ending rollovers of their original small loan. These types of loans are clearly designed to circumvent current payday loan regulations.

Another bill creates alternatives for allowing criminal defense counsel to view child pornography without having to duplicate the images. The bill will also help protect victims of sexual exploitation from being re-victimized.

We are again pushing for the proposed “Local Option Liquor Tax”...an effort to address alcohol abuse by allowing all State counties to have the authority to ask voters to approve alcohol tax increases to pay for substance abuse programs. McKinley County, the only county granted the local option, has successfully used the voter-approved authority for 20 years to pay for alcohol abuse programs.

And we continue to advocate for legislation that allows minors to seek temporary restraining orders against boyfriends and girlfriends who engage in domestic violence against them.

Writing and proposing legislation designed to protect New Mexico families is a major priority for AG King’s administration and we will continue with our determination and tenacity to work for passage of these important legislative measures.

Pedobear...Awareness or Hysteria?

The Attorney General's Office issued an alert last week about reported sightings of the Pedobear decal on NM vehicles...here is the news release.

Wednesday, November 23, 2011 Follow us on Facebook

AG’s Internet Crimes Against Children Unit on Alert

“Pedobear” Sightings Concern Local Law Enforcement

(ALBUQUERQUE)---Attorney General Gary King says depictions of a cartoon-like bear that is linked to pedophiles could be an indication of increased child sex offender activity in the Albuquerque area.

“Our ICAC unit has received reports that the Pedobear window sticker has been sighted in Albuquerque on at least two vehicles recently,” says AG King. “We are very concerned about the potential link between the Pedobear symbol and pedophiles; we also want to increase public awareness of the potential danger to children, especially young girls.”

The concept of the Pedobear began on the Internet as a digital representation of a bear that has a sexual interest in underage girls. Pedobear symbology has spread from the online subculture to mainstream depictions all over the world in the last couple of years.

Recently, a man dressed as the Internet-based Pedobear was escorted by police from the San Diego Comic Con event, where he had been distributing candy to children.

A photograph (see below) of a vehicle in Albuquerque sporting a Pedobear window sticker was forwarded to the Attorney General’s Office by the New Mexico Department of Corrections. Also attached is an information flyer for parents and other concerned adults with more details about the Pedobear history.

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The news release caused quite a commotion amongst Pedobear sympathizers and others who think it was irresponsible for the AG's Office and media to even talk about the potential link to real-life pedophiles..(as opposed to wannabes?). Even some of the journalists who covered the story were hesitant or scared off the story because a few vocal people were adamant in their claims that the whole Pedobear thing was a big joke that the media and AGO had been duped into reporting about. Thanks to the media folks who had the courage to report the story, I realize you put your hard-earned credibility on the line. You did the right thing. Some people thought it would cause a backlash of vigilantism against anyone who displayed a Pedobear sticker or flag or T-shirt. For the record, of course our investigators know that the Pedobear symbology began as an Internet meme joke, poking fun at pedophiles, and yes, we know that anyone who has the bad taste to display a Pedobear symbol is not necessarily a pedophile...emphasis on the word "necessarily." If you are a parent of a three year old, can you really take a chance? This is most assuredly NOT fear-mongering by "well meaning government officials," as one journalist seemed to wonder about. Law enforcement personnel across the country know about Pedobear, they are also concerned. This is the Attorney General's Office simply trying to make New Mexicans aware that the Pedobear symbol is out there and we think the general public, especially those who are not clued in to today's Internet culture, deserve to know what the Pedobear symbol is about and how it is interpreted by law enforcement. Individuals can make their own conclusions as to the relative importance of this information. You don't have to drink the Kool-Aid to know what's in it, right? Lastly, if the Attorney General's Office is lambasted for being too cautious by doing anything and everything we can to help protect children from pedophiles...we're OK with that.

Today was budget hearing day for the NM Attorney General's Office. AG King and office staff appeared before the Legislative Finance Committee to present the AGO FY13 budget request and answer questions from committee members. Below is the cover letter and budget request that included a short accounting of the agency's recent accomplishments. This is information that the public rarely sees, although it is all public record. AG King believes it is vitally important that the public knows how their tax dollars are put to work by the Attorney General's Office.
November 2011_LFC Cover Letter

November 2011_LFC Handout

Facts in the Block Prosecution

The past two weeks have been very productive for the New Mexico Attorney General's Office. The government corruption case involving Public Regulation Commissioner Jerome Block, Jr. was a successful prosecution by the AGO's Government Accountability Division and a resolution in the best interests of justice and the general public.

As always, not everyone is satisfied with the end results. We have heard from a few who think Jerome Block, Jr. should have faced a firing squad or that the Attorney General be flogged for going "too easy" on the defendant. And as usual, these sanguinary-minded few are lacking the basic facts. 

Perhaps everyone can benefit from the rest of the story in this case and maybe, just maybe...gain a better understanding of what has taken place in the Jerome Block, Jr. case.  


First, the state legislature appropriated one million dollars during the just concluded Special Session for the express purpose of impeaching the commissioner...one million of yours and my tax dollars, the majority of that sum would have gone to the Special Prosecutor as legal fees. That is a fact...not an assertion.

Secondly, Jerome Block, Jr. plead guilty to about eight thousand dollars in improper state credit card usage. If you or I had committed the same crime it is highly unlikely we would serve prison time if we also agreed to pay the money back like he has.  He was treated no differently than any other person who committed the same crimes.

Let me further break it down and repeat some of the penalties Block now faces.

1. He will resign from office, savings to taxpayers $90,000/yr.

2. He can never again hold any public office.

3. He pleaded guilty to multiple felonies.

4. He is required to successfully complete rehab and drug court for his substance abuse problems.

5. He must repay between 8-10 thousand dollars involved in the state credit card offense.

6. His impeachment trial is now moot, savings to taxpayers about a $1,000,000.

And yes, charges against his father Block, Sr. will be dropped in relation to the misuse of campaign finance money from several years back...why? Because Jerome Block, Jr. took responsibility for committing the crime. 

Here is one more fact...Jerome Block, Jr. is a first time offender.  I think any reasonable person would agree that this was the best possible outcome for the state of New Mexico and for the cause of justice. Unfortunately, some folks still subscribe to the theory that facts should not get in the way of a story. 

Ready!...FIRE!...Aim!

Finally, congratulations to the AGO Consumer Protection Division for a major victory against a lawyer in Las Cruces who was found to be victimizing his own clients. As Attorney General King put it, "The ruling was very significant and a good beginning for the people who ended up being victims of a lawyer who was supposed to be protecting them. Our next focus is to help these consumers get back some, if not all, the money they paid in legal fees." 

AG Responds to Criticism in Records Case

More often than not, Attorney General King does not respond in kind to attacks against him and the Office, resorting to tu quoque is not his style. Occasionally, however, the verbal assaults are so egregious, misinformed, and outright wrong that at least setting the record straight is needed. The following is the unedited version of AG King's Letter to the Editor in an Albuquerque newspaper.

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In a series of editorial articles, the Journal has been critical of the Attorney General's Office (AGO) for pursuing our legal rights under the Inspection of Public Records Act (IPRA). Most recently our actions were called absurd. Such an editorial conclusion is, however, an oversimplification that does a great disservice to an understanding of IPRA. Here is the rest of the story.

The AGO is indeed tasked with enforcement of IPRA. Our office does this in many ways, including training of public officials in compliance, investigation of complaints and advice to agencies we believe are non-compliant, and enforcement through litigation.

Enforcement of IPRA is also personally important to me because I drafted, sponsored and passed the modern version of the Act while in the Legislature in 1993. Therefore, no one understands the irony of a finding of violation of IPRA against my agency more than I do myself. So, how does the AGO find itself in court, defending against a claim that it is in violation of IPRA?
At no time has my office argued that the documents requested are not public records. This battle is exclusively about the propriety of delivering the records to a specific attorney who has been ordered by a Federal Court to refrain from filing such a request with the AGO. Journal reporter Thom Cole was provided with substantially similar documents in a request he filed in a parallel case without delay or incident. The important difference, Mr. Cole is not subject to any court orders, that I am aware of, prohibiting him from such a request.

In the State action, Judge Brickhouse based her finding of violation on the fact that there is no specific exemption to IPRA that fits the facts of this case. We believe the judge should have applied the exemption within IPRA that is available when there is a sound public policy reason for a denial. As the drafter of the legislation, I included this provision because I knew that it would be impossible to foresee every reason for exemption that could be thought of and listed in the bill in 1993. I can assure you that I never intended for the law to be used as a tool to thwart a court's discovery order. Nor was the law intended to allow forum shopping by a Plaintiff for collateral attack on a valid court order from a different jurisdiction.

In the underlying Federal case here, the Judge ordered the Plaintiffs' lawyer to stop (or "stay") their requests for information (discovery) from the AGO for good reason. Many of the claims brought against the office in the federal suit were clearly prohibited by the U.S. Constitution. In fact, the Federal Magistrate cautioned the Plaintiff's lawyer at the initial scheduling conference that the prohibited claims would likely result in a motion and order staying discovery and urged him to drop the claims, which he refused to do.  Consequently, the order staying discovery was entered. When opposing counsel used an IPRA request in State Court to subvert the Federal Court's order, he was found to be in contempt and fined. This cavalier attitude toward the Federal Court order should not be taken lightly.

In order to mask his true reason for making this IPRA request, the Plaintiffs' attorney represented to the State court that he was not using the Act to subvert the order of the Federal Court. However, when we delivered the documents for review recently, he had all three of his clients in tow. Clearly he misled the State court judge to support his IPRA request. Upon learning of his subterfuge, my office asked the Federal Court judge to find that opposing counsel continues to be in contempt of the discovery stay that is currently in effect and issue a penalty that will ensure compliance. We are asking for a significant penalty this time because he has continued to violate the court’s order even though he was previously fined for contempt.

I believe the question of application of discovery stays to IPRA requested information is very important and worth the litigation we are pursuing. I certainly do not believe it is absurd for the State of New Mexico to have its day in court.

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