Electronic Privacy Information Center files amicus brief asking NM Supreme Court to limit aerial surveillance

Earlier this year I wrote about the Court of Appeals’ decision in State v. Davis, which held that under the New Mexico Constitution, aerial surveillance by police constitutes a search requiring a warrant, or an exception to the warrant requirement.

The case arises from the 2006 arrest of Norman Davis, a man in his 70s who was growing marijuana in his greenhouse. A police helicopter flying overhead spotted the plants, and heavily armed law enforcement officers carrying A-15 semi-automatic weapons confronted Mr. Davis and asked for permission to search the premises, while the helicopter hovered overhead. Mr. Davis “consented” to the search, and police seized the plants.

The New Mexico Supreme Court granted certiorari to hear the case. Earlier this week, the Electronic Privacy Information Center, a preeminent defender of privacy rights, filed this interesting amicus curiae brief in support of Mr. Davis, arguing that the proliferation of aerial surveillance technology (especially in the form of drones) poses a threat to privacy and property interests.

If anyone has access to the briefs filed by the Attorney General or Mr. Davis, I will gladly post them too.

Posted in New Mexico Supreme Court | Tagged , , , | Leave a comment

NM Supreme Court lifts stay, allows recount to continue in Land Commissioner’s race

On Wednesday, the New Mexico Supreme Court denied a petition by the incumbent Commissioner of Public Lands, Ray Powell, challenging the procedures being used to recount the votes in that closely-contested race.

The Supreme Court also lifted a stay it had imposed, and the recount has now resumed. According to this report by Deborah Baker in the Albuquerque Journal, results are expected next week.

The Republican challenger, Aubrey Dunn, presently holds a slim, 700-vote lead over Powell.

Posted in New Mexico Supreme Court, News | Tagged | Leave a comment

Judge Miles Hanisee appears to have prevailed in the Court of Appeals race; other N.M. appellate judges easily win retention

In the latest results from the Secretary of State’s office, Judge Miles Hanisee, the incumbent and Republican candidate, holds a lead over his Democratic challenger, Kerry Kiernan. As of the time of this writing, Judge Hanisee has 242,367 votes to Mr. Kiernan’s 232,677 votes.

I’m not an election law aficionado, so I don’t know how certain this result is, or whether there will be a recount, or whether Mr. Kiernan has conceded.

But if this result holds, then it appears that Judge Hanisee has pulled off an unusual feat for a Republican — winning a statewide judicial race. Congratulations are certainly in order!

I think we should all appreciate the fact that Kerry Kiernan, a talented lawyer, ran a good, respectful, and ethical race. This is one election where the citizens of New Mexico had a win-win choice.

Finally, our state appellate judges who were up for retention easily prevailed, winning over 70% of the vote in each case. Congratulations to Justice Edward Chavez of the New Mexico Supreme Court, and to Judges Linda Vanzi, Cynthia Fry, and Jim Wechsler of the Court of Appeals!

Posted in New Mexico Court of Appeals, New Mexico Supreme Court | Tagged , , , , , , | Leave a comment

Interview with Judge Miles Hanisee of the NM Court of Appeals (2014)

Judge Miles Hanisee
Judge Miles Hanisee

Earlier this week I spoke with Judge Miles Hanisee of the New Mexico Court of Appeals. He was appointed to the Court by Governor Martinez in 2011, and again after the 2012 election.

In addition, he is the Republican Party’s nominee for the New Mexico Court of Appeals that he presently holds. His campaign website is here.

I previously interviewed Judge Hanisee about his personal and professional background when he was running in the 2012 election, so I’ve tried to come up with some different questions this time:

Q.  I’m here at the New Mexico Court of Appeals with Judge Miles Hanisee to ask him a few questions about his race for the Court of Appeals. Thanks for talking with me today.

A.  Thanks for again coming in to interview me, and thanks for continuing to care for the appellate judiciary.

Q.  In this election, why should the voters of New Mexico choose you to remain at the Court of Appeals?

A.  Well, first of all I hope people know that I’m now in my fourth year as a judge on the Court of Appeals. I am as firmly enmeshed in the day-to-day activities of this Court as any of its members right now. I’ve participated in hundreds and hundreds of decisions. I’ve authored over 100 myself. About thirty to thirty-five of those were formal opinions that in some way modify or create precedent here in New Mexico.

You’re also aware that I’ve been endorsed by all three of the major newspapers in New Mexico – not easy in a state-wide race – the Las Cruces Sun-News, the Albuquerque Journal, and the Santa Fe New Mexican. The Taos News endorsed me yesterday, some smaller ones are coming along.

I think it is very noteworthy that the job I’ve done has warranted the editorial board endorsements. And I hope people pay attention to the service I’ve put in, not only here on the Court, but also state-wide. I’ve served on somewhere between seven and ten nominating commissions for district court judges. I’ve traveled the state speaking to bar organizations, bar groups, and worked very, very hard to interact with the community of New Mexico.

Q.  You have been critical of New Mexico’s method of appointing judges and then requiring them to stand in a partisan election. If you could redesign New Mexico’s judicial selection process from the ground up, what would it look like?

A.  Well, it would be anything that doesn’t affix labels to the names of judicial candidates for the job that is perhaps the most non-partisan of any public sector job there is. That’s the answer. I’d be happy with anything.

We start out getting it right. As you know, we start out with commissions filled with the best lawyers in the communities, judges from the court to which there’s to be a new judge, a justice from the Supreme Court, and a judge from the state Court of Appeals. Only those people qualified to serve are forwarded to whoever is the governor at the time.

We then turn around and make those selectees, new judges, into partisan politicians the next day. We’re the only state that does it that way. It’s very much a shame that we do. There are seven states left, and only seven, according to Judgepedia, that still partisanize upper judicial races. By “upper” I mean above the district court.

There is nothing about a non-partisan selection system, which I advocate for, elections that are non-partisan, or elections that are retention-only for appointees. Either one of those systems is fine. Those candidates can still get out in the community, just the same as if they had a label stuck on their names.

But this job is not about partisan affiliation. It is a place where partisan affiliation is banned from your work product, and rightfully so. And we should get into the progressive manner of picking judges for reasons of merit and merit alone. I’ve written about it, I’ve talked about it, and my opponent opposes it. Continue reading

Posted in Interview, New Mexico Court of Appeals | Tagged , | Leave a comment

Interview with Kerry Kiernan, candidate for NM Court of Appeals


Kerry Kiernan (Photo by Mark Holm © 2014)
Kerry Kiernan (Photo by Mark Holm © 2014)

Earlier this week I spoke with Kerry Kiernan, an appellate lawyer with the Sutin, Thayer & Browne law firm in Albuquerque. He is the Democratic Party’s nominee for the New Mexico Court of Appeals. His campaign website is here, and his campaign Facebook page is here.

Q. I’m here with Kerry Kiernan to talk with him about his campaign for the New Mexico Court of Appeals. Thanks for talking with me today.

A.  Thanks for having me.

Q.  Tell us about your family and background before going to law school.

A.  I spent the first 14 years of my life in New York. My dad was a police officer, and was the director of recruit training for the New York police. My parents decided to retire out here because of my mom’s health problems, and so when I was 14 we moved to Albuquerque. They had been out here previously and liked it, so we moved here, and I had two older brothers who did not move with us. I went to Cleveland junior high school, Sandia High School, and then the University of New Mexico for both undergraduate and law school. So I came here in 1968 and have been here ever since.

Q.  Why did you decide to attend law school, and where did you go?

A.  I went to UNM, and I wanted to go to law school because I had studied public administration, had studied political science and history in undergraduate school, and it seemed like the logical thing to do would be to go to law school because I liked the process of law, I enjoyed constitutional law. And also there was an employability issue. It seemed to be more likely that I would have a job as a lawyer than I would as a college teacher. So I picked law school.

Q.  Tell us about your experience as a lawyer. I know you’re an appellate lawyer, and tell us about any other experience you have that qualifies you for the Court of Appeals.

Well, I started out in private practice at the Keleher firm for two years when I first got out of law school, doing both appeals and general civil litigation of every type. I did antitrust, I did RICO litigation, I did insurance defense. But at the time I didn’t think I was probably suited to continue in private practice because I was finding myself more and more attuned to appellate issues. I loved the research and writing.

And actually, a clerkship came open for Judge [A. Joseph] Alarid, who was moving up from district court to the Court of Appeals in 1984. And I thought I would actually enjoy that more. So I applied and became his first clerk. And really at that point I grew to love the appellate process. I loved the research, the writing. He gave us a lot of responsibility. He helped us write opinions. He reviewed what we wrote. Of course he always had the final say, but he gave us a lot of responsibility.

And at that time, I said to myself, “This is what I want to do, I would one day want to be an appellate judge.” But I realized back then that I would need years of qualifications so I could become a credible candidate.

After I left the clerkship, I worked for the appellate public defender for two years doing nothing but criminal appeals, which satisfied me greatly. Then I went back into private practice in Albuquerque, and in that private practice I’ve done almost every kind of civil litigation that there is and civil appeals that there are. I went back into private practice in 1987, and am still in private practice, and have been at various firms. Continue reading

Posted in Interview, New Mexico Court of Appeals | Tagged , | Leave a comment

Tenth Circuit to hold oral arguments in Albuquerque on November 13

Valles Caldera by Emil Kiehne, Copyright 2013
Valles Caldera by Emil Kiehne, Copyright 2013

On Thursday, November 13, the Tenth Circuit will hold oral arguments in a number of cases at the University of New Mexico School of Law in Albuquerque, according to this announcement.

The headliner is Pueblo of Jemez v. United States, a lawsuit in which the Pueblo is attempting to regain ownership of the Valles Caldera in northern New Mexico. If you have any interest in Native American law, this is an argument you won’t want to miss.

Last year, the federal district court in New Mexico dismissed the Pueblo’s lawsuit. I previously wrote about the case here and here, and my colleague Sarah Stevenson has written about the case in more detail at my firm’s Native American Law Watch. If you are interested in reading the briefs, the indispensable Turtle Talk blog has them here.

Posted in News, Tenth Circuit | Tagged | 1 Comment

“Ringside Seat: In a clean race, it’s a shame someone has to lose”

Milan Simonich has this article in the Santa Fe New Mexican about the race for the New Mexico Court of Appeals seat between incumbent Judge Miles Hanisee, the Republican candidate, and his Democratic challenger, appellate lawyer Kerry Kiernan.

The article notes that when Judge Hanisee was a lawyer in private practice, he represented former Democratic state senator Manny Aragon in a corruption case.

I agree with Mr. Simonich that Kerry Kiernan is to be commended for not turning Judge Hanisee’s representation of a controversial figure into a campaign issue. And Judge Hanisee is to be commended for taking on that representation.

When lawyers represent people who are accused of crimes, or are otherwise unpopular or controversial, they are not endorsing the client’s views, goals, or actions. Instead, they are defending the client’s legal rights. It would be much more difficult for our legal system to function if lawyers were not willing to do so. The fact that a lawyer is willing to take on controversial representations makes him or her more, not less, qualified to hold judicial office.

The winners here are New Mexico’s voters, who have a win-win choice in this particular election.


Posted in New Mexico Court of Appeals, News | Tagged , , | Leave a comment

Several New Mexico newspapers endorse Judge Hanisee for Court of Appeals

Several New Mexico newspapers have endorsed incumbent (and Republican candidate) Judge Miles Hanisee for the New Mexico Court of Appeals:

1.  The Santa Fe New Mexican’s is here.

2. The Las Cruces Sun-Times’ is here.

3. The Albuquerque Journal’s is here.

Judge Hanisee is being challenged by the Democratic candidate, long-time Albuquerque appellate lawyer Kerry Kiernan.

Posted in New Mexico Court of Appeals, News | Tagged | Leave a comment

What does the denial of the same-sex marriage petitions mean for New Mexico?

Yesterday the legal world was surprised by the Supreme Court’s denial of all seven petitions for certiorari challenging lower court decisions allowing same-sex marriage. SCOTUSblog has this roundup of news coverage and commentary on the denials.

So what does this mean for New Mexico? The answer is “not much.” Last year, when the New Mexico Supreme Court ruled in favor of same-sex marriage in Griego v. Oliver, its decision was based entirely on the Equal Protection Clause of the New Mexico Constitution, as I explained here.

State constitutions can provide greater rights and liberties than the United States Constitution. Thus, if SCOTUS takes up same-sex marriage in the future, and in the unlikely event that the Court decides that states do not have to allow it, that would have no effect on same-sex marriage in New Mexico.

By basing their challenge solely on the state constitution, New Mexico’s same-sex marriage advocates ensured that our state Supreme Court’s marriage decision would be immune to review by the Supreme Court of the United States. The only way to change the status of same-sex marriage here would be to amend the New Mexico Constitution.

I think the lesson here is to keep the New Mexico Constitution in mind when deciding what claims and defenses to assert, even in “ordinary” civil litigation. In the right case it can be a powerful tool with which to accomplish your client’s goals.

Posted in New Mexico Supreme Court, United States Supreme Court | Tagged , | Leave a comment

Are there any New Mexico judges on Twitter?

Last week Jesse Wegman had this article in the New York Times about Texas Supreme Court Justice Don Willett, and his famous and funny Twitter feed, which you can (and should) follow.

I do not know of any New Mexico judges on Twitter, but if you are aware of any, please leave a comment or drop me a line.

If there aren’t any, then I hope some of our judges will consider joining Twitter and sharing their insights, experience, and photos of beautiful New Mexico sunsets (while, of course, avoiding any mention of pending cases).

Justice Willett shows that judges can tweet successfully. And if a Texas judge can do it, then it stands to reason that our New Mexico judges will be even better at it!

Posted in Everything Else | Tagged | Leave a comment