This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper vers ion filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 MARNA TRAMMELL, as a 2 citizen, an elector, taxpayer, and 3 licensed attorney in and for the County 4 of Curry, State of New Mexico, 5 Petitioner-Appellant, 6
vs. No. 33,483 7

HONORABLE RICHARD L. 8 HOLLIS, magistrate for Curry 9 County, New Mexico, Division II; 10 HONORABLE DUANE KINDRICK 11 CASTLEBERRY, magistrate for 12 Curry County, New Mexico, Division I, 13 Respondents-Appellees. 14

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 15 Sarah M. Singleton, District Judge 16 Eric D. Dixon 17 Portales, NM 18 for Appellant 19 Gary K. King, Attorney General 202 Nicholas M. Sydow, Assistant Attorney General 1 Santa Fe, NM 2 for Appellees. 3

MEMORANDUM OPINION 4 HANISEE, Judge. 5
{1} Petitioner Marna Trammell appeals a decision dismissing a portion of her 6 complaint with prejudice for failure to st ate a claim upon which relief can be granted. 7 In our notice of proposed summary dispositi on, we proposed to affirm. In response to 8 this Court’s notice, Trammell has filed a memorandum in opposition, which we have 9 duly considered. As we do not find Trammell’s arguments to be persuasive, we affirm. 10
{2} Trammell contends that the district court erred in concluding that the statutory 11 scheme providing that magistrates need not be attorneys in counties with a population 12 of less than 200,000 violates due process. [DS 6] In this Court’s notice of proposed 13 summary disposition, we proposed to affirm because Tsiosdia v. Rainaldi , 14 1976-NMSC-011, ¶¶ 3-5, 89 N.M. 70, 547 P.2d 553, held that such a scheme is not 15 violative of due process principles, and this Court is bound by the decisions of our 16 Supreme Court. In Trammell’s memorandum in opposition, she attempts to 17 distinguish Tsiosdiaon several grounds, none of which are persuasive. 183 {3} Trammell first makes an argument based on a non-precedential opinion from 1 this Court in which we held that the defe ndant waived any claim of error with respect 2 to his municipal court proceedings because he did not challenge those proceedings by 3 writ, and instead chose to appeal and receivea trial de novo in the district court. [MIO 4 2] Trammell argues that, based on this decisi on, the statutory scheme deprives people 5 who appear before the magistrate court of due process and a fair hearing. [MIO 2] 6 However, we cannot see how a person is deprived of due process when he fails to 7 challenge by writ claimed defects in a municipal court proceeding and who then 8 receives a properly conducted trial de novo in a district court presided over by a judge 9 who is a licensed attorney. Accordingly, we are not persuaded by this line of 10 reasoning. 11
{4} Second, Trammell argues that Tsiosdiainvolved the question of whether non12 attorney judges could preside over criminal cases arising from violations of municipal 13 ordinances, whereas in the present case, the issue is whether non-attorney magistrates 14 can properly preside over substantive issues of criminal and constitutional law. [MIO 15 2] This argument presents no meaningful distinction. Cases i nvolving violations of 16 municipal ordinances also involve substantiv e issues regarding the ordinances that the 17 defendant is charged with vi olating, and also require non- attorney judges to deal with 18 constitutional matters such as the right to counsel, the right to be free of unreasonable 194 searches and seizures, the privilege against se lf-incrimination, the right to confront the 1 witnesses against a defendant, and other such constitutional protections. 2
{5} Trammell then argues that in Tsiosdia , the defendant did not raise the issue of 3 whether the particular judge was fair and impartial, whereas here, Trammell asserts 4 that Defendants Hollis and Castleberry “can[not] be fair and impartial because of their 5 educational deficiencies.” [MIO 2] This argument is frivolous. Trammell’s assertion 6 on appeal is not that these particular j udges are biased against her; it is that everynon7 attorney judge lacks the education and tr aining required to properly carry out his or 8 her duties by virtue of the fact that he or she is not an attorney. This is precisely the 9 argument that was rejected in Tsiosdia . There our Supreme Court stated that: 10 The judge’s major function is to determine which of two espoused 11 viewpoints—the [defense] attorney’s or the prosecutor’s—is applicable 12 to the facts of the case before him. An unbiased and reasonably 13 intelligent person should be able to choose fairly between such espoused 14 viewpoints. Fairness in this contex t is not critically dependent upon the 15 judge being a member of the bar; a judge must have wisdom and 16 common sense which are at least as dependable as an education in 17 guaranteeing the defendant a fair trial. As with district court judges, as 18 a last resort the appellate process is able to correct the mistakes of law 19 of a municipal court judge. 20 Id. ¶ 5. 21
{6} Finally, Trammell asserts that the use of non-attorney magistrates violates due 22 process because, unlike the non-attorney muni cipal judges who were the subject of the 23 due process challenge in Tsiosdia , magistrate judges can sentence a defendant to up 245 to 364 days in jail, and they can find a person guilty of offenses such as DWIs and 1 stalking that may be subsequently used to raise subsequent offenses to the level of a 2 felony. [MIO 3-4] However, Tsiosdia ’s holding did not depend on the sentencing 3 authority of the municipal courts and wa s instead based on reasoning regarding a 4 judge’s proper role in the adversarial process, as well as the fact that parties have a 5 right to appeal to a court that is presidedover by a judge who is a licensed attorney in 6 order to correct any errors of law. See Tsiosdia , 1976-NMSC-011, ¶¶ 3-5. In addition, 7 we note that municipal judges also have jurisdiction to sentence a defendant to 364 8 days in jail if the defendant’s convicti on is for is driving while intoxicated, see NMSA 9 1978, § 3-17-1(C)(2) (1993), and so we do notbelieve that the differences between 10 the sentencing authority of municipal and magistrate judges is significant enough for 11 this Court to conclude that Tsiosdiadoes not apply. We th erefore conclude that 12 Tsiosdiacontrols our resolution of this appeal. 13
{7} Accordingly, for the reasons stated here and in our notice of proposed summary 14 disposition, we affirm. 15
{8} IT IS SO ORDERED. 16

_____________________________ 17 J. MILES HANISEE, Judge 18 WE CONCUR: 196 __________________________________ 1 RODERICK KENNEDY, Chief Judge 2

__________________________________ 3 M. MONICA ZAMORA, Judge 4