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 1         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2   MARNA TRAMMELL, as a
 3   citizen, an elector, taxpayer, and
 4   licensed attorney in and for the County
 5   of Curry, State of New Mexico,

 6                   Petitioner-Appellant,


 7           vs.                                                           No. 33,483


 8   HONORABLE RICHARD L.
 9   HOLLIS, magistrate for Curry
10   County, New Mexico, Division II;
11   HONORABLE DUANE KINDRICK
12   CASTLEBERRY, magistrate for
13   Curry County, New Mexico, Division I,

14                   Respondents-Appellees.


15 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
16 Sarah M. Singleton, District Judge

17 Eric D. Dixon
18 Portales, NM

19 for Appellant

20 Gary K. King, Attorney General
 1 Nicholas M. Sydow, Assistant Attorney General
 2 Santa Fe, NM

 3 for Appellees.


 4                             MEMORANDUM OPINION

 5 HANISEE, Judge.

 6   {1}   Petitioner Marna Trammell appeals a decision dismissing a portion of her

 7 complaint with prejudice for failure to state a claim upon which relief can be granted.

 8 In our notice of proposed summary disposition, we proposed to affirm. In response to

 9 this Court’s notice, Trammell has filed a memorandum in opposition, which we have

10 duly considered. As we do not find Trammell’s arguments to be persuasive, we affirm.

11   {2}   Trammell contends that the district court erred in concluding that the statutory

12 scheme providing that magistrates need not be attorneys in counties with a population

13 of less than 200,000 violates due process. [DS 6] In this Court’s notice of proposed

14 summary disposition, we proposed to affirm because Tsiosdia v. Rainaldi,

15 1976-NMSC-011, ¶¶ 3-5, 89 N.M. 70, 547 P.2d 553, held that such a scheme is not

16 violative of due process principles, and this Court is bound by the decisions of our

17 Supreme Court. In Trammell’s memorandum in opposition, she attempts to

18 distinguish Tsiosdia on several grounds, none of which are persuasive.




                                               2
 1   {3}   Trammell first makes an argument based on a non-precedential opinion from

 2 this Court in which we held that the defendant waived any claim of error with respect

 3 to his municipal court proceedings because he did not challenge those proceedings by

 4 writ, and instead chose to appeal and receive a trial de novo in the district court. [MIO

 5 2] Trammell argues that, based on this decision, the statutory scheme deprives people

 6 who appear before the magistrate court of due process and a fair hearing. [MIO 2]

 7 However, we cannot see how a person is deprived of due process when he fails to

 8 challenge by writ claimed defects in a municipal court proceeding and who then

 9 receives a properly conducted trial de novo in a district court presided over by a judge

10 who is a licensed attorney. Accordingly, we are not persuaded by this line of

11 reasoning.

12   {4}   Second, Trammell argues that Tsiosdia involved the question of whether non-

13 attorney judges could preside over criminal cases arising from violations of municipal

14 ordinances, whereas in the present case, the issue is whether non-attorney magistrates

15 can properly preside over substantive issues of criminal and constitutional law. [MIO

16 2] This argument presents no meaningful distinction. Cases involving violations of

17 municipal ordinances also involve substantive issues regarding the ordinances that the

18 defendant is charged with violating, and also require non-attorney judges to deal with

19 constitutional matters such as the right to counsel, the right to be free of unreasonable


                                               3
 1 searches and seizures, the privilege against self-incrimination, the right to confront the

 2 witnesses against a defendant, and other such constitutional protections.

 3   {5}   Trammell then argues that in Tsiosdia, the defendant did not raise the issue of

 4 whether the particular judge was fair and impartial, whereas here, Trammell asserts

 5 that Defendants Hollis and Castleberry “can[not] be fair and impartial because of their

 6 educational deficiencies.” [MIO 2] This argument is frivolous. Trammell’s assertion

 7 on appeal is not that these particular judges are biased against her; it is that every non-

 8 attorney judge lacks the education and training required to properly carry out his or

 9 her duties by virtue of the fact that he or she is not an attorney. This is precisely the

10 argument that was rejected in Tsiosdia. There our Supreme Court stated that:

11         The judge’s major function is to determine which of two espoused
12         viewpoints—the [defense] attorney’s or the prosecutor’s—is applicable
13         to the facts of the case before him. An unbiased and reasonably
14         intelligent person should be able to choose fairly between such espoused
15         viewpoints. Fairness in this context is not critically dependent upon the
16         judge being a member of the bar; a judge must have wisdom and
17         common sense which are at least as dependable as an education in
18         guaranteeing the defendant a fair trial. As with district court judges, as
19         a last resort the appellate process is able to correct the mistakes of law
20         of a municipal court judge.

21 Id. ¶ 5.

22   {6}   Finally, Trammell asserts that the use of non-attorney magistrates violates due

23 process because, unlike the non-attorney municipal judges who were the subject of the

24 due process challenge in Tsiosdia, magistrate judges can sentence a defendant to up

                                                4
 1 to 364 days in jail, and they can find a person guilty of offenses such as DWIs and

 2 stalking that may be subsequently used to raise subsequent offenses to the level of a

 3 felony. [MIO 3-4] However, Tsiosdia’s holding did not depend on the sentencing

 4 authority of the municipal courts and was instead based on reasoning regarding a

 5 judge’s proper role in the adversarial process, as well as the fact that parties have a

 6 right to appeal to a court that is presided over by a judge who is a licensed attorney in

 7 order to correct any errors of law. See Tsiosdia, 1976-NMSC-011, ¶¶ 3-5. In addition,

 8 we note that municipal judges also have jurisdiction to sentence a defendant to 364

 9 days in jail if the defendant’s conviction is for is driving while intoxicated, see NMSA

10 1978, § 3-17-1(C)(2) (1993), and so we do not believe that the differences between

11 the sentencing authority of municipal and magistrate judges is significant enough for

12 this Court to conclude that Tsiosdia does not apply. We therefore conclude that

13 Tsiosdia controls our resolution of this appeal.

14   {7}   Accordingly, for the reasons stated here and in our notice of proposed summary

15 disposition, we affirm.

16   {8}   IT IS SO ORDERED.



17                                                 _____________________________
18                                                 J. MILES HANISEE, Judge

19 WE CONCUR:

                                               5
1 __________________________________
2 RODERICK KENNEDY, Chief Judge




3 __________________________________
4 M. MONICA ZAMORA, Judge




                                  6
