“Contrary to sound principles of judicial and common sense, we are required to hear this direct appeal….”

So said Justice Bosson today in a non-precedential decision, Town of Silver City v. Ferranti, commenting on a statute (NMSA 1978, sec. 35-15-11) which provides a municipality with a right of direct appeal to the New Mexico Supreme Court “from any decision of the district court in every case brought for the violation of an ordinance of said municipality.”

This only goes to show that there are all kinds of obscure and unusual provisions buried in the New Mexico Statutes, waiting to be used, for good or for mischief, depending on your point of view…

The decision itself arose from a situation where a police officer arrested the defendant for smoking marijuana and drinking alcohol from an open container in public. A Silver City ordinance allowed the officer the choice of issuing a citation or making an arrest, and the officer chose the latter option, apparently as a sort of training exercise for a new police officer who was with him.

The defendant argued that the ordinance was unconstitutionally vague because the choice of whether to arrest or issue a citation is left to the officer’s discretion. Understandably, and correctly, the Supreme Court rejected this argument, since it is common for statutes to afford police this sort of discretion, and because of the apparent lack of authority supporting this novel theory.

I expect this sort of argument, if accepted, would have some unintended consequences. Probably more statutes and ordinances would simply require officers to arrest when they have probable cause to do so.

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