As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children. In State v. Myers, 2011-NMSC-028, the New Mexico Supreme Court rejected the Court of Appeals' chastisement, and concluded that the Sexual Exploitation of Children Act, NMSA §§ 30-6A-1 et seq. applies to taking covert pictures of the genitals of female minors' while they used the restroom.
In what was an unusual twist, the Court of Appeals, on remand, had concluded that the State Supreme Court had impermissibly expanded the scope of the Act. Specifically, it
concluded
concluded
- there was no way a defendant could reasonably have been put on notice that the Act would prohibit installing a hidden camera in a restroom that was trained on and photographed minors' genital areas,
- because there was no way a defendant would understand the resulting pictures of minors--which Defendant conceded were taken for the purpose of sexual gratification--would constitute a "lewd and sexually explicit exhibition" under the Act.
Wow. That's all I have to say. There may be a reason why N.M. regularly appears on the list of "Judicial Hell Holes." See http://www.atra.org/reports/hellholes/report.pdf.
Of course, the State Supreme Court may not be entirely blameless. Prior to remand, it had waxed poetical about how the images were lewd because of the combination of "focus on the minors' genitals," and also "the upward angle, the peephole-like framing, the grainy quality," etc. What?? How about, they were lewd because intentionally taken for the admitted purpose of sexual gratification? Or would photos of minors' genitals for sexual gratification purposes not be lewd if crisp and clean, framed only by thighs or panties, and/or taken from a downward or straight-on angle??
A very competent but grounded Second Judicial District Children's Court Judge, the Honorable Monica M. Zamora, has applied for the Court of Appeals vacancy created by the resignation of Judge Robles, after his DUI arrest. She recently told a group of CASA (Court Appointed Special Advocates) workers, including myself, that she had felt good about her recent interview with the Governor. Unlike Richardson in a prior run for appellate appointment, Governor Martinez actually asked Judge Zamora about her qualifications, what she could bring to the bench, and such.
Judge Zamora then went on to speak to the CASA group very eloquently about her ability to bring a greater understanding of children's issues to the Court of Appeals. As the Judge noted, there is no Judge sitting on the Court of Appeals who has a background and experience in children's' law. Although Judge Zamora did not say it, many practitioners today tend to feel appellate courts are out of touch with reality, and their decisions tend to be too academic. This may be especially obvious in their decisions dealing with children's issues.
I know it's trite, but children really ARE our most precious resource, as our present Governor clearly knows and understands. Thus, I for one do hope Governor Martinez decides to appoint Judge Zamora to fill this very critical void on the Court of Appeals.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
Pilar Vaile, P.C.
UPDATE, 9/6/11: Judge Zamora ultimately did not receive the appointment to the Court of Appeals. We involved in the Bernalillo County Children's Court are very happy to retain her here, although the Court of Appeals and its child protection jurisprudence would have been vastly improved by her presence.
