Herrera v. Sedillo

• Citation: 740 P.2d 1190,106 N.M. 206,1987 NMCA 98
• Decision Date: 14 July 1987
• Docket Number: No. 9419,9419
• Parties: Mariano H. HERRERA, Plaintiff-Appellant, v. Raul A. SEDILLO, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1190

740 P.2d 1190

106 N.M. 206

Mariano H. HERRERA, Plaintiff-Appellant, v. Raul A. SEDILLO, Defendant-Appellee.

No. 9419.

Court of Appeals of New Mexico.

July 14, 1987.

[106 NM 206] James R. Beam, Mark Shapiro, Albuquerque, for plaintiff-appellant.

Jonathan E. Zorn, Butt, Thornton and Baehr, P.C., Albuquerque, for defendant-appellee.

OPINION

MINZNER, Judge.

Plaintiff appeals from summary judgment in an action for legal malpractice. The district court found defendant immune from suit under the Public Defender Act, see NMSA 1978, Sections 31-15-1 to 31-15-12 (Repl.Pamp.1984 & Cum.Supp.1986), and the Indigent Defense Act, see NMSA 1978, Sections 31-16-1 to 31-16-10 (Repl.Pamp.1984). We affirm.

Defendant represented plaintiff in a criminal case in 1983. Plaintiff was convicted. Plaintiff's complaint alleged that as a result of defendant's negligence in reviewing the judgment and sentence, and failing to correct errors in the judgment and sentence entered by the court, plaintiff was incarcerated unnecessarily for a period of approximately one year. No issue is raised by the pleadings other than assertions of professional negligence.

Defendant answered that he was appointed to represent plaintiff under the Indigent Defense Act and is immune from civil suit under the terms of that act. Sec. 31-16-10. Plaintiff argues that in fact defendant was retained under contract to the Public Defender and was representing plaintiff under the Public Defender Act, which contains no provision with respect to immunity. Plaintiff contends the immunity provided by Section 31-16-10 does not apply. Section 31-16-10 provides that "[n]o attorney assigned or contracted with to perform services under the Indigent Defense Act shall be held liable in any civil action respecting his performance or nonperformance of such services."

We note that the record contains both an order appointing defendant as counsel and a copy of a contract between defendant and the Public Defender Department. Under that contract defendant agreed to render legal services to indigents for whom the Public Defender has responsibility under "the Public Defender Act, Indigent Defense Act, other New Mexico or federal authority, and/or Order of the New Mexico Supreme Court." We assume, but need not decide, that when defendant represented plaintiff he was acting under the authority of the Public Defender Act.

Statutes which relate to the same class of things are in pari materia. State ex rel. State Park & Recreation Comm'n v. New Mexico State Auth., 76 N.M. 1, 411 P.2d 984 (1966). A reading of the Indigent Defense Act and the Public Defender Act indicates that the two acts together provide a statutory scheme for providing counsel to indigent criminal defendants. The Indigent Defense Act gives indigent defendants the right to free counsel, thereby recognizing their sixth amendment rights. The Public Defender Act, enacted later, provides an administrative agency for accomplishing...