Save the date for the 2017 New Mexico Appellate Practice Institute

This year’s entire day of appellate goodness and CLE credits will take place on Friday, September 15 at the State Bar Center in Albuquerque.

We are thrilled to have, as our keynote speaker, the Honorable James E. Graves, Jr. of the U.S. Court of Appeals for the Fifth Circuit. Judge Graves served as a justice of the Mississippi Supreme Court before President Obama appointed him to the Fifth Circuit.

The rest of the program will be released soon, and I’ll post again when registration opens. I hope to see you there!

Posted in Events, News | Tagged , , | Leave a comment

NMSC: Tort Claims Act waives sovereign immunity for loss of consortium claims

Today the New Mexico Supreme Court issued its decision in Thompson v. City of Albuquerque, holding that the Tort Claims Act waives the state government’s sovereign immunity for loss of consortium claims. The case was brought by the minor children of a man who was shot and killed by Albuquerque police.

Justice Chávez’s opinion for the unanimous court also holds that the children may assert their loss of consortium claim although their father’s estate did not file a wrongful death claim.

The Supreme Court’s decision affirms last year’s Court of Appeals decision in this case, which reached the same conclusion.

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

Judge Jim Wechsler to retire from NM Court of Appeals

After more than 22 years of service on the New Mexico Court of Appeals, Judge Jim Wechsler has announced that he will be retiring on July 31, 2017, according to this story by Phaedra Haywood in the Santa Fe New Mexican. Ms. Haywood’s story says that Judge Wechsler’s tenure is the second-longest of any appellate judge in New Mexico history.

As one of the most respected and hard-working judges in the state, Judge Wechsler certainly deserves his retirement, but this is a real loss to the people of New Mexico. Judge Wechsler’s opinions are full of both legal erudition and common sense. Also, he is unassuming and respectful towards everyone he meets. I can attest to this as the recipient of kindness, encouragement, and advice from Judge Wechsler since meeting him while I was a lowly law student in the late 1990s.

His shoes will be hard — perhaps impossible — to fill.

 

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

Nakamura sworn in as New Mexico’s Chief Justice

Chief Justice Judith Nakamura

Yesterday, the New Mexico Supreme Court’s newest member, Judith Nakamura, was sworn in as Chief Justice. She succeeds Justice Charles Daniels in that post.

The swearing-in ceremony took place yesterday at the New Mexico Judicial Conclave here in Albuquerque. You can read the details in this story by Katy Barnitz in the Albuquerque Journal.

Chief Justice Nakamura was a longtime judge on Albuquerque’s Metropolitan Court until Governor Martinez appointed her to the Supreme Court in 2015. She is a hot-air balloon pilot, and a cancer survivor.

Congratulations to the Chief!

Also, thanks and appreciation are in order for Charles Daniels’ work as chief justice. He has worked long and tirelessly to improve New Mexico’s judicial system.

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

Have lunch with Judge Vargas of the NM Court of Appeals

Judge Julie Vargas

Tomorrow, Friday, June 2, the Appellate Practice Section of the New Mexico State Bar will host a brown-bag lunch with Judge Julie Vargas of the New Mexico Court of Appeals. This is an opportunity to learn more about the Court of Appeals, and ask any questions you may have.

The lunch begins at noon tomorrow, and will be held at the State Bar Center in Albuquerque.

If you’d like to attend, please RSVP with Zach Ives at zach@ginlawfirm.com.

 

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

10th Cir. Chief Judge Tymkovich speaks on judicial independence at University of Chicago.

Recently, Tenth Circuit Chief Judge Timothy Tymkovich spoke at the University of Chicago Law School on “Judicial Independence From Jay to Roberts.”

Here is a report on his talk. Hat tip to How Appealing.

Posted in Uncategorized | Leave a comment

Tenth Circuit Judge Paul Kelly to take senior status.

The U.S. Courts’ list of future judicial vacancies now indicates that Tenth Circuit Judge Paul Kelly will take senior status on a date yet to be announced.

Judge Kelly was appointed to the Tenth Circuit in 1991 by President George H.W. Bush, and confirmed in April 1992.

Judge Kelly’s action will open a New Mexico seat on the Tenth Circuit for President Trump to fill. I have heard that U.S. District Judge James O. Browning may be interested in the appointment. I have not yet heard of any other possible candidates, so please let me know if you know who’s in the running!

And thanks to Judge Kelly for his long active service to our country!

Posted in News, Tenth Circuit | Tagged , | Leave a comment

Electronic filing is now available at the New Mexico Supreme Court!

Today I received the following welcome announcement from Joey Moya, Clerk of the New Mexico Supreme Court:

As of today, electronic filing and service is​ ​available for use on a voluntary basis for all new and pending cases in the Supreme Court through the same File and Serve system used in state district courts throughout New Mexico.  Paper filings will continue to be accepted by the Supreme Court until July 1, 2017, at which time use of the electronic filing system for all proceedings in the Supreme Court will become mandatory.  ​To learn more about the Supreme Court’s new eFiling process and for information about training opportunities, please visit the Supreme Court’s website by clicking here

Thanks to all of those folks who have worked hard to make e-filing a reality. Let’s hope the New Mexico Court of Appeals is able to follow suit soon!

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

NMCA: Expert failed to establish prima facie case that pharmacy satisfied standard of care

Earlier this month, the New Mexico Court of Appeals issued a decision (Oakey v. May Maple Pharmacy, Inc.) that should be required reading for all lawyers involved in professional negligence cases.

The lawsuit alleged that a pharmacy was negligent for prescribing excessive quantities of potentially addictive medications, such as Oxycodone, and ignoring signs that the patient was abusing them. The patient died of an overdose.

The pharmacy moved for summary judgment, supported by an expert affidavit stating generally that pharmacists satisfy the standard of care merely by filling facially valid prescriptions written by physicians, and that to impose any greater standard of care risked harmful interference with the physician-patient relationship. The affidavit “cited no statutes, regulations, or other authorities” in support of the expert’s proposed standard. The trial court granted summary judgment.

The Court of Appeals, in an opinion by Chief Judge Linda Vanzi, held that the expert’s affidavit did not establish a prima facie case for summary judgment. The Court noted that several New Mexico regulations imposed obligations on pharmacists to identify medication abuse and to take appropriate steps to resolve any problems, but the expert did not address any of these.

The Court held that “a party cannot establish a professional standard of care as a matter of law with an expert affidavit that fails to account for law applicable to the professional and/or to the particular circumstances in which the professional has acted or failed to act.”

The lesson from this case will likely apply to all professional negligence cases. If you want to move for summary judgment on the ground that your client has met the standard of care, your expert must address any applicable regulations or standards, and cannot simply say that in his or her opinion, the standard of care has been satisfied.

 

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

Tenth Circuit upholds New Mexico’s challenge to DOI Indian gaming regulations

The Indian Gaming Regulatory Act requires states to negotiate in good faith with Indian tribes who seek to establish a gaming compact with the state, and sets forth procedures for the negotiation process, including mediation.

Ultimately, if the parties are unable to agree, the Act provides that the Secretary of the Interior “shall prescribe, in consultation with the Indian tribe, procedures … consistent with the proposed compact selected by the mediator … under which Class III gaming may be conducted.” In response to this language, the Department of the Interior enacted regulations at 25 C.F.R. Part 291.

As part of the ongoing dispute between the State of New Mexico and the Pueblo of Pojoaque over tribal gambling, the State sued the Department of the Interior, arguing that the Part 291 regulations were beyond its authority. The District Court agreed with the State.

On Friday, the Tenth Circuit issued its opinion in State of New Mexico v. DOI, affirming the trial court. The opinion, by Judge Holmes, holds that the State had standing, the dispute is ripe and justiciable, and that the Part 291 regulations exceeded the Department’s statutory authority.

Posted in News, Opinions and Analysis, Tenth Circuit | Tagged , , , , | Leave a comment