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In re Neal11/26/2003
ir further directed that if respondent received orders placing him on active military duty, he should fax a copy of his orders to the chair within twenty-four (24) hours. Although respondent agreed to do so, nothing was filed on behalf of respondent, including notice that respondent had been deployed on active military duty. When the hearing reconvened nothing had been filed on respondent's behalf and neither respondent nor his attorney attended. The hearing was concluded without respondent and the hearing committee subsequently issued its decision recommending that respondent be disbarred.
In accordance with §520 of the Soldiers and Sailors' Civil Relief Act, 50 U.S.C. app §§501-593 (1941) and this Court's March 25, 2003, order for compliance with that act, disciplinary counsel tendered to this Court an affidavit concerning military service. The affidavit showed that respondent could no longer be contacted at his address of record and that a research inquiry to the Department of Defense Human Resource Activity, Defense Manpower Data Center, had resulted in a report that respondent was not in the military. The affidavit also disclosed, however, that shortly before this matter was set for oral argument before this Court, disciplinary counsel learned that respondent was on active duty with a National Guard unit in Clovis, New Mexico.
Attached to disciplinary counsel's affidavit was a copy of a memorandum faxed by disciplinary counsel to respondent at the National Guard unit in Clovis. The memorandum informed respondent of the status of the disciplinary proceeding, including the scheduled hearing before this Court, and the fact that respondent's attorney of record had been suspended from the practice of law. Approximately one hour before the hearing was set to begin, respondent faxed a Motion for Stay of Proceedings to the clerk of this Court. This motion was based upon the Soldiers' and Sailors' Civil Relief Act and respondent's active deployment. The affidavit and its attachments revealed, however, that respondent did not receive orders for active duty until January 27, 2003, and was not deployed until January 30, 2003. Contrary to respondent's understanding, as stated in his motion, the Soldiers' and Sailors' Civil Relief Act does not stay all legal action during his active duty. A stay may be appropriate only if a person's active military duty places them at a disadvantage in a legal proceeding.
The previous occasion on which this Court considered the Soldiers' and Sailors' Civil Relief Act, Jaramillo v. Sandoval, 78 N.M. 332, 431 P.2d 65 (1967), illustrates that military service will not stay every action. Jaramillo was a paternity and child support case. A jury trial was held on the issue of paternity with defendant present and testifying that he was not the child's father. The jury found that he was the father. A hearing was then scheduled to determine the remaining issues including child support. Prior to the second hearing, defendant's attorney filed an affidavit stating the defendant was on active military service. The hearing was held with the attorney for defendant present, but without the defendant, and the amount of support to be paid by defendant was set by the court. On appeal, defendant argued the trial court had erred in determining the monetary issues in his absence, and that the Soldiers' and Sailors' Civil Relief Act operated as a bar to the proceedings in his absence. This Court disagreed, stating that the Soldiers' and Sailors' Civil Relief Act permits a stay of proceedings unless the court determines that the military service will not affect the ability of the litigant to present his case. The Court held that it had not been shown that defendant's presence wou
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