Common Law in New Mexico: Is New Mexico a Common Law State?

What is Common Law?

Common law refers to a body of unwritten laws based on legal precedents established by the courts. It is developed by judges and is based on prior decisions in similar cases. Statutory law, on the other hand, is law enacted by legislative bodies. After a court’s interpretation of a statute becomes precedent for lower courts, the common law becomes codified.
The common law is said to have originated in England, when King Henry II established royal courts of justice beginning in 1154. To establish rule of law, the king’s courts followed precedents established in previous rulings. The decisions from these court cases then became part of the law, thus the term, "common law." Later, if a legislature set forth a statute that was in conflict with the common law, the statute would take precedence. However , the courts maintained the power to judicially review the statute and render it moot.
Common law is distinguished from civil law, which is based more heavily on statutes. Because common law is derived from case-by-case precedent, judges are more law-makers than judges who primarily apply statutes to cases. For example, while statutory law may be definitive in its regulation of speeding limits, what is reasonable or unreasonable is generally a matter of common law, rather than statutory law.
Common law also stands in contrast to equity, which applies equity (fairness and justice) to matters under judicial review. English common law was supplemented by equity beginning around the 14th century. In England, the Lord Chancellor applied equity-based decisions to conflicts of law where there were no statutes or common law to address the issues. Today, equity decisions by the Lord Chancellor are governed by the Court of Chancery.

Is New Mexico a Common Law or a Civil Law State?

According to the treatise on The Law of New Mexico, "New Mexico is not a common law state in the sense that Georgia, for instance, is or Wisconsin is; but it is a state which is governed to a large extent by the self-restraint of its citizens." This was as recently as 1946, and more than twenty years later, however despite the fact the New Mexico State Supreme Court has said since 1953 in the case of Schwendemann v. Pacific Indem. Co. that "[T]he State of New Mexico is a common law jurisdiction where the common law prevails, except where superseded by statute", the question remains as to whether New Mexico is indeed a common law state.
The theory of the common law is simply that the law comes from the usage and customs of the people in which the judicial decisions were made and is expounded by judges expressing the common consent of the bench and bar of the State. A civil law system on the contrary is theoretical in nature and the legislature is the main source of law. In essence it is a top down approach where lawmakers begin with rules and explanations, while with a common law system judges base decisions on customs, usages and other court decisions. In both instances the prominent way in which law is made is through case law.
Essentially, a hybrid of the two approaches, New Mexico has been said to have jurisprudential characteristics that contain elements of both a civil law system and a common law system. It has sometimes been stated that New Mexico’s "jurisprudence is that kind of responsibility of judges which gives enough authority to the judiciary to create or modify the law according to the needs of the State." It has been said that the New Mexico Supreme Court is the main contributor to the state’s "body of law," the will of the people having been expressed chiefly through the court and the legislature.
Regardless of whether New Mexico can or cannot truly be called a common law state, there are a number of sources that may be cited as evidence of its ability to be classified. One example is the case of Stelle v. Albuquerque, 56 N.M. 664 (1959) where in determining that the trial court erred in refusing to allow a good faith mistake of law instruction to the jury, it was said that "[t]he basis for this type of instruction lies in the fact that ignorance of the law is no excuse. Therefore, if the jury believes a mistake as to law was made in good faith; that it was made by Stelle and not his counsel; and that Stelle, as well as many reasonable people, could have been mislead by the erroneous legal advice of an attorney with as long experience and reputation as his counsel, then Stelle should have been entitled to an instruction defining the defense of good faith mistake of law on his part."
Regardless of your opinion of whether New Mexico is or is not a common law state, as can be seen from the above, the looks at ultimate responsibility for law in New Mexico would seem to be best summarized by the New Mexico Legislation "The judicial function is to expound the law as a whole… and to develop the law so as to stimulate social progress."

How Does Common Law Affect New Mexico’s Legal System?

The principles of common law weave through a variety of legal practices in New Mexico, even though the state isn’t technically a common law state. Adherence to common law rules and regulations can be seen throughout the delegation of authority among governing bodies and their individual agencies.
In the New Mexico Constitution, Article VI Section 27 of the 1910 New Mexico Constitution states, "The legislature, each house by a vote of a majority of all the members elected to that house, may at any time amend any section or sections of this constitution, or any part thereof, in any manner that it may deem proper." Since New Mexico has adopted a policy of revision, essentially any law passed by the legislature (the "hoary rule") has been repealed, but even if a law is constitutional—and therefore shouldn’t stand—there is no way to force removal, so the law, although not necessarily pertinent, may remain on the books and used as precedent.
In practice courts have generally turned to common law rules and principles to ensure that resolution is met in a fair manner since the state has no enacted procedural code for evidentiary issues. For example, if there is no particular statute in place for the process of an unlawful search and seizure, courts will refer to the common law ruling. Even though courts are allowed to make rules of procedure, if there is a conflict between these as they relate to the Constitution, the latter overrides the former.
Similar to other common law states, New Mexico allows for common law marriages. The courts have been established to recognize marriages and end marriages. In 1943, the Supreme Court of New Mexico struck down a law passed by the legislature, which required a marriage license for all couples wishing to marry in the state. This allowed for marriages to be conducted without a license and without a ceremony, or without a blood test, legal documentation, parenting or waiting period. Common law couples can end their marriages if the parties can prove that they were married; however, once a common law couple is legally decreed divorced, they cannot remarry in a common law union.

Examples of Common Law in Action Within New Mexico

Examining specific instances of the common law’s application in New Mexico helps to further underscore its vitality. For example, in Ricketts v. Gila Monster Products, LLC, the New Mexico Court of Appeals considered the retention of water on public roads. The court began its analysis with a 1708 English land case "resolving the question whether a landowner could be liable for the damage that might result if his water ran over his neighbor’s land and resulted in flooding." Then, it cited modern cases as well. And in Nunn v. New Mexico State Police, a common law negligence analysis allowed a police officer, in a case involving citizen’s arrest, to retain qualified immunity, despite a statutory grant of the retention of such immunity being denied him.
Common law notions are evident in many other areas. The common law right of freedom of speech underlies the New Mexico constitution; the regulation of mortgage transactions by regulation is predominately common law; the New Mexico constitution recognizes common law property rights in its Community Property act; an established common law regarding mutuality in contracts and which focuses on the intent of the parties including the granting of a power of attorney; precepts of common law are incorporated into the constitution relative to workmen’s compensation; the use of common law concepts of trust and estate law in the New Mexico Probate Code , and so on.
A major aspect of the common law involves the evolution of the law through precedent. A sometimes overlooked key feature of the common law is its flexibility. The common law, according to the Arizona Supreme Court in Arizona v. Evans, is the law developed by the courts, independent of statutory authority; it is that body of law which derives authority solely from the standards articulated and applied by judicial decisions. Like the New Mexico system, the Arizona common law continues to be a vibrant and central force in the legal system. The Arizona case also stated, according to Black’s Law Dictionary, that the common law represents the balance of reason and experience. However, like the law itself, the vitality of the common law system in Arizona is dependent on its being properly invoked by the courts.

How Common Law States Compare With New Mexico

When comparing New Mexico’s legal system against other states that are unequivocally common law states, there are significant differences. Two of them are the inability to contract for liability waivers and absent witness requirements under the dead man’s statute.
Liability Waivers
Regulation of liability waivers are not uniform from state to state. Some states may allow participants or people using services in "inherently dangerous" activities to sign pre-injury liability waivers that could absolve providers like ski resorts of liability. But New Mexico courts have refused to enforce such liability waivers regardless of the parties’ commercial bargaining power or the extent to which each party is sophisticated or informed, as long as the waiver applies to negligence or ordinary negligence.
For example, New Mexico plaintiffs have successfully sued the School of Breath Air Rafting (SBAR) after signing a pre-injury liability waiver because the waiver purported to waive liability for gross negligence.
The Court held that "a release cannot relieve a tortfeasor from liability for damages arising from gross negligence." The Court found that the definition of gross negligence included an act or omission "which a reasonable person would recognize as constituting a careless disregard for the rights or safety of others." Thus, the court in SBAR found that the waiver of liability signed by the plaintiff did not apply to the ski resort’s alleged grossly negligent behavior.
Dead Man’s Statute
Some New Mexico courts have recognized the importance of testimony from witnesses who are directly involved in a lawsuit when they rule on the application of the Dead Man’s Statute. New Mexico’s Dead Man’s Statute states that when an individual has died, testimony by one or more witnesses which inures to the benefit of the deceased’s estate is deemed inadmissible. In civil lawsuits, testimony of witnesses who are interested in the outcome of the lawsuit is likewise declared inadmissible. The Dead Man’s Statute is intended to protect the estate from prejudicial testimony.
One major difference between some states and New Mexico regarding the Dead Man’s is the application of the law to claims against the deceased which run solely through the deceased estate. For example, suppose Lisa, the owner of restaurant Lima’s, dies in an auto accident. Lisa’s estate hires Chuck to operate the restaurant. One week later, Timmy hurts himself in a slip-and-fall at Lima’s, claims his fall was due to a defective floor mat and sues Lisa’s estate for negligence.
In states like Georgia, courts have applied the Dead Man’s statute to protect the estate because the claim runs solely against the estate and not against Chuck, who is acting within the scope of his employment. New Mexico courts have rejected that analysis. In a case where a craft show called "Merry Christmas on Broadway" was sued for an injury at the fair and then it was discovered that the craft fair did not exist and was merely a marketing gimmick (but nobody wanted to tell the injured party, apparently), the defendant claimed that it was entitled to the protection of the dead man’s statute because it did not exist and therefore its defense to the claim ran directly through the defendant and it would not exist in the absence of the dead man’s statute.
The New Mexico court concluded that it is not enough (or at least was not enough in that case) to merely assert that the defense of the deceased’s status exists. Rather, the defendant must show that the testimony of the deceased could have provided evidence to help support its claim. Here, the defendant was unable to identify any evidence the deceased would have provided and the Court held the defendant was not entitled to protection under the dead man’s statute.

Legal Guidance for Interacting With New Mexico’s Legal System

When faced with a legal issue in New Mexico, particularly one regarding the applicability of common law or statutory law, it is crucial to seek the counsel of a licensed attorney well-versed in the state’s legal system. Given the nuances of both common and civil law, individuals are not advised to make significant decisions without first discussing the matter with a legal counsel. Not only can they provide clarity on how common law may affect the outcome of a particular situation, but they can also frame this advice within the broader context of other laws that may apply when considering legal action.
Statutes, constitutions, and case laws all hold great significance in New Mexico, and even more so in the context of common law. Case law, or the body of former judicial opinions, is particularly important because it defines the limits and scope of the law . Case law is developed when judges interpret laws and then hand down rulings that become precedent for future decisions in similar contexts. While New Mexico judges are not obliged to follow past rulings, they often choose to do so, and those which are binding carry the additional guarantee that the interpretation set forth will stand — making it vital for anyone attempting to educated themselves on state law prior to seeking legal services in New Mexico.
If you are not versed in New Mexico laws, or are unfamiliar with the amount of variation between states, it may be difficult to discern what is truly necessary for a successful case down the road. An attorney with experience in your circumstances can better assess the situation than general sources such as lawyers without specific practice areas. The importance of obtaining proper legal advice is critical in even the most seemingly trivial circumstances, as it can have a significant impact on the outcomes of future decisions.