Judge Timothy Tymkovich to be new Chief Judge of the Tenth Circuit

This morning Chief Judge Mary Beck Briscoe announced that she will step down as chief judge of the Tenth Circuit, effective September 30, 2015, according to this news release on the Tenth Circuit’s website.

Judge Timothy Tymkovich will serve as the Tenth Circuit’s new chief judge.

I’m sure the entire legal community in the Tenth Circuit is grateful for Chief Judge Briscoe’s service. Congratulations to Judge Tymkovich!

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Little Sisters seek relief from SCOTUS, and an op-ed gets their claims wrong

The Little Sisters of the Poor have asked the Supreme Court of the United States for relief from the Tenth Circuit’s ruling earlier this month rejecting their challenge to the “accommodation” from HHS’ contraceptive mandate.

Paul Clement is counsel of record on their petition for writ of certiorari. (Hat tip to How Appealing).

Also, yesterday in the Albuquerque Journal carried this op-ed by Erin Armstrong, a lawyer for the ACLU of New Mexico, defending the Tenth Circuit’s ruling.

Unfortunately, Ms. Armstrong is mistaken about some of the issues presented by the case. For example, she says “[a]ll the law asks is that those organizations fill out a simple form stating their objection.” As I explained here, and as Mr. Clement explains much more eloquently in the petition, this is not “all the law asks.” Instead, the Little Sisters’ claim is  that even filling out the form involves them in cooperation with acts they believe to be immoral.

Ms. Armstrong also asserts that “[w]e all have the right to our religious beliefs, but that freedom does not entitle us to discriminate or decide what kind of health care others will or will not receive.” This statement is of no relevance to the case. The Little Sisters are not acting out of some kind of discriminatory animus against others, but instead seek to avoid participating in acts they consider to be immoral.

Also, they’re not attempting to “decide what kind of health care others” will get. Even if the Little Sisters prevail, their employees remain free to buy contraceptives, which are widely available in our society. And of course, if an employee wants to work for an employer that maintains an insurance plan that covers contraceptives, there are plenty of workplaces that do so. No one’s forcing anyone to work for the Little Sisters.

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Watch this interview with Justice Samuel Alito

Now that October Term 2014 is over, a lot of appellate law nerds may be feeling a bit SCOTUS-deprived.

But never fear, respite is at hand. Bill Kristol has conducted an in-depth interview with Justice Samuel Alito, which you can watch here.

Even if you disagree with Justice Alito on some issues (such as his regrettable decision to be a Philadelphia Phillies fan), this interview is well worth watching.

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Santa Fe trial court upholds $165.5M verdict against FedEx

In a case that is surely headed to the New Mexico Court of Appeals, District Judge Francis Mathew yesterday denied FedEx’s post-judgment motions seeking to overturn the astounding $165.5 million verdict that a Santa Fe jury returned in a wrongful death case.

You can read about the ruling in this story by Robert Nott in the Santa Fe New Mexican.

According to the story, the trial court determined that there was no indication that the jury reached its verdict through passion and prejudice. But the jury awarded $165.5 million in compensatory damages for a wrongful death case, which is excessive by any standard. If this wasn’t a runaway jury, it’s hard to imagine what would be.

 

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“The Art of Appellate Advocacy”

Jay O’Keeffe, who publishes “De Novo: A Virginia Appellate Law Blog,” has this post on a videotaped forum with six justices of the Supreme Court of Virginia, in which they discuss appellate practice.

Although some of the content naturally focuses on Virginia practice, much of it will be of interest to appellate lawyers everywhere.

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10th Circuit rules against Little Sisters of the Poor on contraceptive mandate “accommodation”

Today the 10th Circuit issued its long-awaited (and just plain long) opinion in Little Sisters of the Poor v. Burwell, in which several religious groups are challenging the so-called accommodation that the Department of Health and Human Services is providing to non-profit religious groups. As I explained here, the religious groups claim that the accommodation is unsatisfactory because, as structured, it still requires them to facilitate access to contraceptives and abortifacients, in violation of their deeply-held moral convictions.

The Court, in a 2-1 opinion written by Judge Scott Matheson, joined several other federal appellate courts in rejecting the religious groups’ challenge. Judge Bobby Baldock wrote a dissenting opinion.

The opinion clocks in at 98 pages, and the dissent at 25 pages, so I haven’t had time to digest them, and probably won’t have time to do so today, but I hope to add links to commentary by others, so check back later today.

Given the importance of the issues, I think we should expect the appellants to seek en banc review.

UPDATE (July 15, 2015): The Becket Fund for Religious Liberty, which represented some of the religious groups, have released this statement in reaction to the decision.

The Hill has a story entitled “Court: Nuns must comply with ObamaCare’s birth control mandate.”

The Denver Post a story entitled “Denver’s Little Sisters of the Poor lose contraception coverage ruling.”

The Huffington Post has a story entitled “Nuns Lose Case Against Birth Control Mandate.”

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Save the date for the 26th annual New Mexico Appellate Practice Institute

The New Mexico State Bar has announced that the 26th annual New Mexico Appellate Practice Institute will be held on Friday, September 11, 2015 at the State Bar Center in Albuquerque.

This year’s keynote speaker will be the Honorable Jimmie V. Reyna of the U.S. Court of Appeals for the Federal Circuit, who is a native of New Mexico.

The full program for this CLE seminar has not yet been released, and registration is not yet open, but I’ll post that information when it becomes available.

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10th Circuit affirms Windstream’s win in sex and age discrimination case

The Tenth Circuit has affirmed a summary judgment that Windstream Communications obtained against the plaintiff, Susan Bennett, who alleged that the company had engaged in sex and age discrimination. See Bennett v. Windstream Communications, Inc. 

One wonders why this case was brought at all. As Judge Kelly’s opinion explains, Ms. Bennett utterly failed to make out a prima facie case of sex or age discrimination. From the facts, Ms. Bennett’s termination was pretty clearly caused by her failure to respect her employer’s rules — e.g. she often arrived at work two hours late. Disciplining an employee for failing to come to work on time hardly demonstrates any discriminatory animus.

Other allegedly discriminatory acts were also anything but. For example, when Ms. Bennett went on leave for a short-term disability, Windstream retrieved the company-owned vehicle and tools that Ms. Bennett had been using, so that other employees could use them. Again, it’s hard to see what’s wrong with that.

The lesson here seems obvious —  to prove a case of discrimination, it’s not enough to show that your employer has done things you don’t like; you’ve got to prove that they took those actions because of some prohibited discriminatory animus.

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Justice Harry Stowers, RIP

Today brings with it the sad news that former New Mexico Supreme Court Justice Harry Stowers has passed away. Ryan Boetel has this story in today’s Albuquerque Journal.

Justice Stowers served on the Court from 1982 to 1989. My condolences to his family, colleagues, and friends.

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NM Court of Appeals explains how to resolve land-use conflicts between state governmental bodies

What should courts do when governmental entities have land use fights?

The Legislature created the Eastern New Mexico Water Utility Authority to construct a water delivery system from the Ute Reservoir to nearby local governments. The Authority planned to construct a facility within the Village of Logan, but when it decided to expand the project, the Village told the Authority that its plans would violate the Village’s zoning ordinance, and that the Authority needed to apply for a special use permit.

The Authority said that the Village’s zoning ordinance did not apply to it, and refused to seek the special use permit. Of course, litigation followed, and the trial court agreed that the Authority was immune from the Village’s ordinance.

The Court of Appeals affirmed. As Judge Hanisee explained, when state government entities are in conflict over land use, lower courts should apply the “statutory guidance test,” which means that courts should “review the statutory powers assigned to each entity to ascertain whether the Legislature intended that one entity’s local zoning ordinances apply to the other entity’s activities.” See Village of Logan v. Eastern New Mexico Water Utility Authority (July 6, 2015).

The Court adopted this test based on the primary importance of giving effect to legislative intent. In this case allowing the Village to enforce its zoning ordinance against the Authority would interfere with the Legislature’s intent that the Authority construct a water delivery system that would serve a large area of the state.

The Court rejected the Village’s argument that the “balancing of factors” test should apply, which would require courts to consider not only the statutes governing the entities, but a host of other factors. Other New Mexico cases gave precedence to the Legislature’s intent, and the “statutory guidance test” is more consistent with that principle.

I think this result is correct. A focus on statutory language makes it more likely that the Legislature’s intent will be carried out. That should be the goal, because the Legislature is responsible for setting policy. And if a trial court gets it wrong, an appellate court can correct it via de novo review.

On the other hand, applying a mushy, free-wheeling, multi-factor test could tempt judges to apply their own policy preferences, and lead to inconsistent results that would be more difficult to correct on appeal, since multi-factor tests are often reviewed under a more deferential abuse-of-discretion standard.

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