NMCA: Underground water rights may be partially forfeited

by Emil J. Kiehne Posted on August 14, 2019

A landowner contended that he owned 394.85 acre-feet of underground water rights in the now-abandoned town of Cutter, New Mexico. The evidence at trial showed that a railroad had previously used the water, but that for 34 years the water was not used for anything other than livestock use. A special master found, and the district court agreed, that all non-livestock water rights had been forfeited under NMSA 1978, Section 72-12-8(A). That statute provides that a water right owner who makes no beneficial use of the water right for four years forfeits that right. The landowner appealed, apparently arguing that the underground water right could not be partially forfeited.

In State of N.M. v. Office of the State Engineer (opinion by Judge Julie Vargas), the Court of Appeals held that Section 72-12-8(A) allows the partial forfeiture of underground water rights. The Court first noted that statutes governing surface water rights explicitly provide for the partial forfeiture of those rights. Although Section 72-12-8(A) does not include a reference to partial forfeiture, the Court relied on background principles of water law — e.g. that one does not have a right to water in excess of actual use — in holding that the statute does allow for partial forfeiture. The Court then held that substantial evidence supported the special master’s findings that there had been a partial forfeiture.

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NMCA: Fundamental error to instruct jury on element of crime that has been repealed

by Emil J. Kiehne Posted on August 13, 2019

In this case, the defendant, Marcos Figueroa, was charged with criminal sexual penetration of a minor for abusing his son and stepson. At trial, the district court granted the State’s request that the jury be instructed that the defendant had used his “position of authority” over the victims to coerce them to submit to the acts. The instruction was taken from Uniform Jury Instruction 14-945, although the Use Note for that UJI states that it is only to be used for crimes that occurred before the amendment. The defendant’s trial counsel did not object.

But as the Court of Appeals held in State v. Figueroa (opinion by Judge Zachary Ives), the Legislature deleted the “position of authority” language from the relevant statute before the dates on which the defendant committed the offenses. Therefore, it was fundamental error to allow the convictions to stand, and a new trial was ordered.

This case serves as a good reminder that in New Mexico state-court cases, it is not sufficient to look for a Uniform Jury Instruction with language that fits your case. Nor should you simply agree to an opponent’s proposed jury instruction just because it is taken from the UJI. Instead, one should carefully read the Use Notes and commentary for guidance on whether the instruction is actually proper.

It’s also a good idea to read the case law on the topic of the instruction. Despite the best efforts of the committees that work on the UJIs, sometimes appellate decisions or legislative action will change the law, but those changes may not be reflected at all, or reflected accurately, in the UJIs. In those situations, of course, the case law or statutes control.

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10th Circuit denies habeas relief in high-profile 1984 Utah murder case

by Emil J. Kiehne Posted on August 12, 2019

Today, in Lafferty v. Benson, the Tenth Circuit (in an order signed by Judge Briscoe) denied a certificate of appealability in the high-profile murder case of Ron Lafferty, who was convicted of murdering his sister-in-law, Brenda Lafferty, and her fifteen-month-old daughter, Erica. He was sentenced to death.

The case is receiving media attention. You can read more about it in this story by Nate Carlson in the Salt Lake Tribune, which notes that as a result of this decision, Lafferty may face a firing squad within months.

Lafferty’s crimes were featured in Jon Krakauer’s 2004 book, Under the Banner of Heaven. Lafferty blamed Brenda for his divorce and was also resentful over his excommunication from the Latter-Day Saints church. Lafferty and some of his brothers formed a group called the “School of the Prophets,” who claimed to receive revelations from God. In 1984, he claimed to receive a revelation that several people, including Brenda and Erica, were to be “removed.” He and his brother, Dan, then murdered Brenda and Erica in July 1984.

In an earlier proceeding, Lafferty was granted habeas relief, but was sentenced to death again at his new trial in 1996. Today, the Tenth Circuit rejected several claims raised by Lafferty — i.e. that the Utah state court lacked jurisdiction to retry him in 1996, that his retrial violated double jeopardy, that he received ineffective assistance at sentencing, and that the state trial court erred in finding him competent to stand trial.

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10th Circuit: Sentence of imprisonment is final judgment although restitution issues remain open

by Emil J. Kiehne Posted on August 12, 2019

Michelle Paup was convicted in a jury trial in federal magistrate court of theft of government property of less than $1,000 for shoplifting at an exchange store on an air force base in Colorado. She appealed to the district court, which upheld her conviction but vacated the restitution award and remanded for further proceedings. She then appealed her conviction and sentence.

In United States v. Paup (opinion by Judge Harris Hartz), the Tenth Circuit joined a number of other circuits in holding that a sentence of imprisonment is final and appealable even where restitution issues remain unresolved. Requiring that restitution issues be set before appeal “would frustrate a defendant’s need to promptly challenge her conviction or sentence of imprisonment.”

The Court also upheld the magistrate court’s exclusion of defendant’s expert witness, who was apparently going to testify that defendant had mental health problems that precluded her from having the required mens rea to commit shoplifting. Defense counsel at trial offered a number of insufficient excuses — such as a supposed inability to use PACER — for the late disclosure, which the magistrate court properly rejected.

Finally, the Court upheld a two-level enhancement of the defendant’s offense level for perjury. Ms. Paup testified at trial, and offered a number of patently implausible excuses for her conduct. For example, she hid two Coach bags in her purse and then claimed that she put them beneath her purse “so that [she could] keep track of [them],” and then later claimed that she had bought them at another store.

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NMCA: Reversing conviction of middle school student who said he was making a “kill list”

by Emil J. Kiehne Posted on August 12, 2019

A 14-year-old student at Capitan Middle School told another student he was making a “kill list.” Then, when the school’s principal asked whether he had a “hit list,” the student corrected her and said it was a “kill list.” The student was ultimately convicted of violating NMSA 1978, Section 30-20-13(D), which criminalizes willful interference with the educational process. You can read more about the arrest and charges in this story by Dianne Stallings in the Ruidoso News.

In State v. Quintin C. (opinion by Judge Megan Duffy), the Court of Appeals reversed the conviction because the district court improperly applied a general-intent mens rea to reach its decision. The Court held that Section 30-20-13(D) is actually a specific-intent crime, and that the conviction had to be reversed.

The Court then held that there was sufficient evidence to convict the student under the specific-intent standard (if there had not been, then double jeopardy would’ve barred a retrial), and remanded for a new trial using the proper standard.

This is the first New Mexico appellate decision to interpret Section 30-20-13(D). Federal courts have applied the statute before, most notably in A.M. v. Holmes, where a student was arrested under the statute for fake-burping in class. Then-judge Neil Gorsuch’s dissent in that case attracted some attention at his SCOTUS confirmation hearing.

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Justices Bacon and Thomson kick off their election campaigns next week

by Emil J. Kiehne Posted on August 9, 2019

In New Mexico, judges who are appointed to fill a vacancy must run to keep their seats in the next general election. These judicial races are partisan ones. If you are appointed and don’t win, you will be back in private practice (just like me).

Thus, Justice Shannon Bacon and Justice David Thomson, who were appointed to the Supreme Court by Governor Lujan Grisham earlier this year, must run in the November 2020 general election.

Their first campaign event (as far as I’m aware) will be next Thursday evening in Santa Fe at the law firm of Brian Egolf, Speaker of the New Mexico House of Representatives.

Justice Bacon and Justice Thomson have also set up their campaign websites here and here. Their websites make clear that each of them will be seeking public financing for their elections.

I do not know of anyone who has declared an intent to run against them, but there’s still plenty of time for that. It’s possible that they could face primary challenges from fellow Democrats, or a challenge in the general election from Republicans or Libertarians, or both. But when I do hear news, I’ll post it here.

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NMSC: Public Regulation Commission’s approval of PNM’s 2018 renewable energy procurement plan affirmed

by Emil J. Kiehne Posted on August 8, 2019

Today the New Mexico Supreme Court issued its unanimous opinion in New Mexico Industrial Energy Consumers v. New Mexico Public Regulation Commission (opinion by Justice Shannon Bacon).

The issue in the case is whether the Public Service Company of New Mexico (PNM), in asking for bids on a solar power project, unfairly favored turnkey bidders over purchased-power-agreement (PPA) bidders by requiring only the latter “to determine transmission and interconnection costs for their bids,” while using predetermined information for the turnkey bidders. The PPA bidders argued that, in combination with the 30-day deadline for submitting bids, they were disadvantaged because it can take significantly longer than 30 days to gather the required cost information.

Justice Bacon’s opinion held that the evidence in the record supported the PRC’s decision that PNM’s request for proposal was fair. The opinion notes that there was evidence that renewable energy developers often can provide cost information quickly, and that the appellants could have, but did not, request an extension of the 30-day deadline.

If you’re interested in this case, you can also listen to the oral argument, which was held on May 7, 2019, and read this article about the background of the case by Leah Cantor in the Santa Fe Reporter.

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Arguments in Florida v. Georgia to be heard in Albuquerque in December

by Emil J. Kiehne Posted on August 7, 2019

Tenth Circuit Judge Paul Kelly, whom the Supreme Court of the United States appointed as special master in Florida v. Georgia, has entered an order setting oral argument on December 16, 2019, at 10 a.m., at the Pete V. Domenici United States Courthouse in Albuquerque.

You can read more about this water dispute in this post by Lara Fowler at SCOTUSblog, and in this story by WFSU News. You can also read case documents in the online docket.

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10th Circuit upholds $60M breach of contract verdict in natural gas pricing dispute

by Emil J. Kiehne Posted on August 6, 2019

Antero Resources Company entered an eight-year contract to sell natural gas from the Marcellus Shale formation to South Jersey Gas Company. They agreed that South Jersey would pay a price in accord with a gas price index published by a respected third party.

At some point, South Jersey came to believe that the composition of the index had changed, and tried to renegotiate the contract with Antero. South Jersey relied on a provision of the contract that allowed for renegotiation if the index was discontinued or unavailable, or if both parties agreed that a material change in the index had occurred.

Antero disagreed that renegotiation was required and South Jersey unilaterally started paying a lower price. Antero sued for breach of contract, and a jury awarded it $60 million.

In Antero Resources Corp. v. South Jersey Resources Group, LLC (opinion by Chief Judge Tymkovich), the Tenth Circuit upheld the verdict, holding that South Jersey’s interpretation of the contract turned on fact questions, which were for the jury to resolve. And sufficient evidence supported the jury’s resolution.

This case illustrates the problems that arise when parties to a contract agree to base a contractual term on an index or rules created by a third party. This can occur in a variety of contexts. For example, sometimes parties to a contract will agree to arbitrate any disputes before a third-party arbitrator, or in accord with arbitration rules created by a third-party organization. In many instances, however, the parties do not fully flesh out what will happen if the rules change in some way, or if the designated arbitrator decides it will no longer conduct arbitrations. This can lead to disputes about how to apply the contract in situations that the parties did not anticipate.

Here, while South Jersey’s contract contemplated that the index might change, its ability to renegotiate the contract depended on an agreement by both parties that a material change in the index had occurred. Here, Antero did not agree. This dispute might have been avoided if the contract had included language stating that renegotiation could occur if the index changed in some objectively-measurable way.

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10th Circuit: Prisoner who was victim of unprovoked assault by Denver sheriff’s deputy failed to allege Section 1983 municipal liability claim

by Emil J. Kiehne Posted on August 5, 2019

Anthony Waller, a criminal defendant, was at a hearing in a courtroom inside the Denver city jail. He politely and calmly addressed the judge about his disagreement with the State’s case against him. Suddenly, a deputy sheriff spun Mr. Waller around and threw him into a glass wall and metal post, inflicting injuries on him. You can see footage of the incident in this story by Justin Joseph of KDVR in Denver.

Mr. Waller sued the deputy under Section 1983 and won an excessive force judgment against him. But the district court dismissed Mr. Waller’s municipal liability claims against Denver, based on its allegedly inadequate hiring practices and failure to train the deputy, because the complaint did not state sufficient facts to support those claims.

In Waller v. City and County of Denver (opinion by Judge McKay), the Tenth Circuit affirmed. First, it restated the bedrock principal that a municipality is not liable in respondeat superior for the acts of its employees. Instead, a municipality is only liable if the plaintiff shows that the government’s “policy or custom” caused the injury.

Here, Mr. Waller generally alleged that the City of Denver has inadequate hiring policies, and that the deputy who assaulted him was hired due to nepotism. But he failed to allege that if adequate hiring practices had been followed, they would have shown that hiring this particular deputy presented a known or obvious risk of harm.

As for Mr. Waller’s “failure to train” theory, the Court observed that it is usually hard to prove this sort of claim, and normally requires proof of a pre-existing, similar pattern of constitutional violations. Mr. Waller alleged only one similar assault by a Denver sheriff’s deputy, which was insufficient to show a “pattern.” He also alleged that a number of inmates died or were injured while in custody, but did not allege that these incidents were the result of any use of force by sheriff’s deputies. Finally, Mr. Waller’s complaint mentioned a number of excessive-force incidents that occurred after his injury, but those were insufficient to show a pre-existing pattern.

This case is a reminder that municipal liability claims under Section 1983 are hard to establish. If you are a plaintiff’s lawyer, it isn’t sufficient to generally allege the existence of a policy or custom. Instead, careful investigation of the municipality’s history of previous incidents is required to find those that might support your case.

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