N.M. R. App. P. 12-405
N.M. R. App. P. 12-405
Committee commentary. - "Non-precedential dispositions" referred to in this rule are also commonly described as unpublished opinions or dispositions. In addition to the citation requirements in Paragraph D of this rule, all citations to unpublished orders, decisions, and memorandum opinions must comply with the applicable provisions in Rule 23-112 NMRA and the most current edition of The Bluebook: A Uniform System of Citation. For purposes of this rule, the New Mexico Compilation Commission's web site is a publicly accessible electronic database that provides free access to some unpublished orders, decisions, and memorandum opinions issued by the New Mexico Supreme Court and Court of Appeals. A publicly accessible electronic database also includes pay-for-access sites like Westlaw and Lexis.
[Adopted by Supreme Court Order No. 11-8300-031, effective for cases pending or filed on or after September 12, 2011.]
.ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-006, effective March 1, 2012, eliminated the requirement that opinions be published in the New Mexico Reports; required that opinions be published in an authenticated, digital format by the New Mexico Compilation Commission; and in Paragraph C, in the third sentence, after "shall be published in", deleted "the New Mexico Reports" and added "an authenticated, digital format by the New Mexico Compilation Commission and collectively known as the New Mexico Appellate Reports". The 2011 amendment, approved by Supreme Court Order No. 11-8300-031, effective September 12, 2011, in Paragraph A, categorized dispositions as precedential and non-precedential; provided that disposition by order, decision or memorandum does not mean that the disposition is not precedent; permitted non-precedential dispositions to be cited for any persuasive value and under the doctrines of law of the case, claim preclusion and issue preclusion; in Paragraph B, provided that orders, decisions and memorandum opinion disposed of under Paragraph B are non-precedential; in Paragraph C, provided that opinions, except non-precedential orders, decisions and memorandum opinions, become precedent when filed and that a writ of certiorari does not affect the precedential value of Court of Appeals' opinions unless otherwise ordered by the Supreme Court; and added Paragraph C to require that citations of non-precedential dispositions indicate that the disposition is non-precedential or unpublished and that a party file and serve a copy of any cited non-precedential disposition that is not available in a publicly accessible electronic database with the paper in which the disposition is cited. Non-published order not valid precedent. - Where the supreme court cited no authority for its order and did not state the principle upon which it relied, and the order was not intended for publication, under Paragraph C, it would not be used as precedent. 1987 Op. Att'y Gen. No. 87-41. Unpublished opinions of this court have no precedential value and should not be cited as authoritative in briefs to this court. Coslett v. Third St. Grocery, 1994-NMCA-046, 117 N.M. 727, 876 P.2d 656. While an unpublished opinion of the Court of Appeals is of no precedential value, it may be presented to the Court of Appeals for consideration if a party believes it persuasive. Gormley v. Coca-Cola Enter., 2004-NMCA-021, 135 N.M. 128, 85 P.3d 252, cert. granted, 2004-NMCERT-001. Calendar notice not valid precedent. - It is inappropriate to cite a calendar notice as controlling authority; however, if counsel concludes that language in a memorandum opinion or calendar notice is persuasive, we see no reason why it cannot be presented to the court for consideration if the language is presented without reference to its source. State v. Gonzales, 1990-NMCA-040, 110 N.M. 218, 794 P.2d 361, aff'd, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630. Where no cause shown against summary affirmance, conviction summarily affirmed. - Where the parties are notified that the court of appeals proposes summary affirmance and the defendant submits a memorandum in opposition to summary affirmance but nothing in the memorandum shows cause why there should not be a summary affirmance, then the defendant's conviction is summarily affirmed. State v. Albertson, 1976-NMCA-062, 89 N.M. 557, 555 P.2d 380, rev'd on other grounds, 1976-NMSC-056, 89 N.M. 499, 554 P.2d 661. Memorandum opinion does not deny a petitioner's constitutional right to appeal as guaranteed by N.M. Const., art. VI, § 2. Hudson v. State, 1976-NMSC-084, 89 N.M. 759, 557 P.2d 1108, cert. denied, 431 U.S. 924, 97 S. Ct. 2198, 53 L. Ed. 2d 238 (1977). Defendant not entitled to new trial where overwhelming evidence of guilt exists. - Where the evidence, exclusive of any improperly admitted exhibits, points so overwhelmingly to the guilt of the defendant of the crime of which he was convicted that there is no reasonable possibility that the admission into evidence of such improperly received exhibits contributed to his conviction, the defendant is not entitled to a new trial. State v. Gray, 1968-NMCA-059, 79 N.M. 424, 444 P.2d 609. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 973 et seq.; 20 Am. Jur. 2d Courts § 152. Precedential effect of unpublished opinions, 105 A.L.R.5th 499. 5 C.J.S. Appeal and Error § 962 et seq.