NM Supreme Court: Whistleblowers can’t sue state officials in their personal capacities

Former New Mexico Secretary of State Mary Herrera allegedly fired two employees of her office in 2010 for speaking with the FBI, which was investigating her conduct. The employees sued Herrera under the New Mexico Whistleblower Protection Act. Last year, the Court of Appeals held that the plaintiffs could sue Herrera in her personal capacity. I wrote about that decision here.

In a unanimous decision, the Supreme Court reversed. See Flores v. Herrera.

Justice Nakamura’s opinion explains that although the statute makes “public employers” liable, and the statute’s definition of that term includes “every office or officer” of a governmental entity, the Whistleblower Protection Act does not allow lawsuits against an officer in his or her individual capacity.

First, she said, the Act does not explicitly make government officials liable in their individual capacities, and the Act’s language including “officer” within the term “public employer” does not do so because “[t]hose persons who occupy the offices of state government clearly do not act in their individual capacities when they take actions affecting the employment of public employees.”

Second, some of the statute’s remedies — such as injunctive relief reinstating an employee — could only apply to a state agency, not to an individual, like Herrera, who has left office.

Third, it is unnecessary to impose individual liability to fulfill the Act’s remedial purposes.

Finally, allowing recovery against a government official’s personal assets would discourage people from entering government service.Today’s Albuquerque Journal also has this story about the decision.

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Judges Bustamante & Kennedy to retire from NM Court of Appeals

According to the Judicial Nominating Commission, Judge Michael Bustamante will retire from the New Mexico Court of Appeals on October 31, 2016, and Judge Roderick Kennedy will retire from the Court on November 30, 2016.

Andrew Oxford has this comprehensive article about the retirements in today’s Santa Fe New Mexican, in which he explains the judge’ reasons for retiring, and other interesting details.

The Judicial Nominating Commission will meet on December 1, 2016 in Santa Fe to interview applicants to replace Judge Bustamante. A separate commission will meet later in December to interview applicants to replace Judge Kennedy.

The commissions will then send the names of applicants they’ve determined to be qualified to Governor Martinez, who will then appoint replacements. Governor Martinez’s appointees will have to run for election in the 2018 general election.

Whoever replaces these judges will have big shoes to fill.

Judge Bustamante graduated from UNM Law School in 1974, and after a career in private practice, he was appointed to the Court by Governor Bruce King in 1994. He is known for his interest and expertise in New Mexico history (legal and non-legal), and for his pointed questions at oral argument.

Judge Kennedy graduated from the University of Toledo (Ohio) Law School in 1980, and was elected to Albuquerque’s Metropolitan Court in 1988. Governor Gary Johnson appointed him to the Court of Appeals in 1999, and again in 2001, and he has remained there ever since. Judge Kennedy is known for his expertise and interest in scientific evidence.

Many thanks to Judge Bustamante and Judge Kennedy for their years of service to the people of New Mexico!

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NM Supreme Court rejects right to assisted suicide

The New Mexico Supreme Court has issued a unanimous opinion (written by Justice Chavez) in Morris v. Brandenburg rejecting the claim that the New Mexico Constitution creates a right to assisted suicide.

Because the plaintiffs based their claim solely on the state constitution, they cannot petition the Supreme Court of the United States for review.

Justice Nakamura did not participate in this decision, which was argued before she was appointed to the court. District Judge James Hudson sat by designation to fill the seat vacated by Justice Bosson’s retirement.

Blair Miller of KOB has this report about the decision, and Scott Sandlin of the Albuquerque Journal has this report. The ACLU of New Mexico, which supported the plaintiffs’ challenge, issued this press release expressing disappointment at the decision. (I suspect there will be many more reactions to this decision over the next few days, and I’ll do my best to update this post later on.)

I’ve written about this case in previous posts: here, here, here, here, here, and here.

In the interests of full disclosure, I filed an amicus brief on behalf of a number of New Mexico state legislators opposing the recognition of any right to assisted suicide.

 

 

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NM Supreme Court restricts judges’ use of social media. Did it go too far?

Yesterday the New Mexico Supreme Court issued an opinion in State v. Thomas, reversing a murder conviction because an expert witness for the prosecution testified via Skype, which the Court held violated the Confrontation Clause.

But the Court, in an opinion by Chief Justice Charles Daniels, also took the opportunity to address judges’ use of social media.

During the trial, the district court judge (who was then running for election) posted two comments on his campaign Facebook page. The first, made during trial, said “I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.” The second, made after the jury’s guilty verdict, but before sentencing, stated “In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.”

The defendant moved for a new trial, arguing that these comments evidenced judicial bias, but a (successor) trial court judge denied it. Because the Supreme Court granted the defendant a new trial on Confrontation Clause grounds, it did not have to address this claim, but it took the opportunity to provide the following guidance for judges:

  • Judges have an obligation to avoid impropriety and its appearance. The Court cited an opinion from its own Advisory Committee on the Code of Judicial Conduct, which states that “a judge may not communicate on a social media site in a manner that the judge could not otherwise communicate.
  • The Court then cited cases discussing instances of alleged misconduct on social media by actors in the legal system.
  • While the Court was not willing to prohibit judges from using social media, it warned that conduct such as “friending,” online postings, and other social media activity “can easily be misconstrued and create an appearance of impropriety.”
  •  While social media is useful in judicial elections, campaign social media sites should be maintained by the judge’s campaign committee, and not the judge personally.
  • Perhaps most controversially, the Court clarified “that a judge who is a candidate should post no personal messages on the pages of these campaign websites other than a statement regarding qualifications, should allow no posting of public comments, and should engage in no dialogue, especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.”
  • The Court also warned that judges should regard all social media postings as public communications, and should not be lulled into complacency by reliance on privacy settings.

Most of the Court’s guidance is pure common sense. Judges should indeed be extremely careful on social media, and must always be mindful of their obligation to avoid even the appearance of impropriety. Chief Justice Daniels’ warning that all social media postings should be regarded as public, and that judges should not over-rely on privacy settings, is spot-on.

But other aspects of the Court’s guidance are problematic, and raise more questions than they resolve: Continue reading

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Tenth Circuit: Hot dispute over Hatch chile trademark case leads to ruling that documents may be obtained from non-parties without a deposition

Hatch Chile, the real fruit of the gods (photo obtained at https://commons.wikimedia.org/wiki/File:Hatch_green_chile.jpg)
Hatch Chile, the real fruit of the gods (photo obtained from Wikimedia Commons)

It’s an understatement to say that chile peppers are an important part of New Mexico’s cuisine and culture. And, as the Tenth Circuit said last week in El Encanto, Inc. v. Hatch Chile Company, Inc., New Mexico’s “Hatch Valley may be to chiles what the Napa Valley is to grapes.”

Thus, many distributors and restaurants, in New Mexico and elsewhere, advertise their use of genuine Hatch chile products. While plenty of good chile peppers are grown in other New Mexico locales, Hatch chile is the gold standard, or perhaps I should say, the “green & red” standard, for chile peppers. (Colorado also claims to grow chile peppers, but as a patriotic New Mexican, I decline to dignify those allegations with a response). But I digress…

Lately, a private corporation, the Hatch Chile Company, Inc., has attempted to trademark the word “Hatch” for its own exclusive use, an action which was certain to provoke controversy and litigation. And it did. Another chile producer, El Encanto, Inc., objected, as did the Hatch Chile Association. They argued before the Trademark Trial and Appeal Board (TTAB) that “Hatch” should not be trademarked because it refers to a geographical area, and all who sell chile products from that area should be allowed to say so.

They also argued that the Hatch Chile Company, Inc. uses the term in a misleading manner because it actually sells chiles that aren’t from the Hatch Valley. To prove this claim, El Encanto sought to compel documents from Hatch Chile Company’s suppliers in federal court by using subpoenas under Federal Rule of Civil Procedure 45 (which parties to TTAB proceedings are allowed to do).

Hatch Chile Company, apparently wishing to keep the source of its chiles a secret, objected to the subpoena, arguing that El Encanto was required to notice a deposition to obtain the documents, despite the fact that no one really wanted to conduct a deposition. The District Court agreed with Hatch Chile Company, and quashed the subpoena.

Well, on appeal you know that things aren’t going your way when the court refers to your preferred procedure as requiring a “pointless process.” As Judge Neil Gorsuch’s opinion explains, Hatch Chile Company’s argument would require “[m]onths of motion practice followed by a new subpoena and a deposition that one one really wants just to secure documents the relevance of which no one seriously disputes.”

Unsurprisingly, the Tenth Circuit held that El Encanto did not have to notice a deposition to obtain the non-party documents. The case will now return to the District Court to consider Hatch Chile Company’s objections to the scope of the subpoena, and after that dispute is resolved, this dispute will probably be resolved by the TTAB on the merits. I’ll do my best to provide further updates about this case, which is of such obvious interest to all patriotic New Mexicans.

 

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NM Court of Appeals: Police not immune from loss of consortium claims

In Thompson v. City of Albuquerque, the Court of Appeals has held that the Tort Claims Act does not shield law enforcement officers from loss of consortium claims.

The unanimous opinion in this case was written by Judge Michael Bustamante.

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NM Supreme Court: Flat fees for contract public defenders don’t violate right to effective assistance

Your paycheck is constitutional, Mr. McGill
Your paycheck is constitutional, Mr. McGill

In the first episode of Better Call Saul‘s first season, Jimmy McGill complains about the $700 paycheck he received for representing three teenagers accused of indecent acts as a New Mexico contract public defender.

While that scene was played for laughs on the show, the relatively low level of pay that contract public defenders receive is a serious issue, as yesterday’s decision by the New Mexico Supreme Court in Kerr v. Parsons demonstrates.

Contract public defender work is not a lucrative field. As Justice Judith Nakamura’s opinion for the Court notes, flat fees for contract public defenders in Lincoln County in 2014 were $180 for misdemeanor cases, $250 per juvenile case, $540 per fourth-degree felony case, $595 per third-degree felony case, $650 per second-degree felony case, and $700 per first-degree felony case.

In 2015, the Legislature rejected a proposal that contract public defenders be paid at an hourly rate. Later that year, in a criminal case in Lincoln County, a state district court judge held that the flat fees were not sufficient to satisfy the State’s obligation to provide counsel for indigent defendants under Gideon v. Wainwright, and therefore violated the defendant’s federal and state constitutional rights to effective assistance of counsel. The trial court entered a remedial order directing that contract public defenders be paid $85 per hour.

The Supreme Court overturned the trial court’s order. To prove that the flat fees are unconstitutional, a defendant must show that they “are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” The Court held that such a factual basis had not been shown in this case, and said “We cannot assume that any contract attorney in New Mexico who represents an indigent defendant under the current flat-fee arrangement necessarily will be unable to subject the prosecution’s case to meaningful adversarial testing.” Thus, while rejecting the constitutional challenge in this case, the Court noted that “[f]uture cases … presenting other record facts, could precipitate our duty to enforce those same constitutional rights.”

Justice Barbara Vigil filed a concurring opinion, expressing concern over the low level of compensation offered to contract public defenders.

I doubt we’ve heard the last of this important issue.

 

 

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Have lunch with Chief Judge Michael Vigil

On Friday, June 10, the Appellate Practice Section will be hosting a brown-bag lunch with Chief Judge Michael Vigil of the Court of Appeals. The lunch will begin at noon at the State Bar Center in Albuquerque. Space is limited, so please RSVP by emailing Tim Atler at tja@atlerfirm.com.

Chief Judge Vigil graduated from Georgetown University Law School in 1976, and served as a staff attorney in the Court of Appeals’ prehearing division from 1976 to 1979. He then entered private practice until his appointment to the Court of Appeals in 2003 by Governor Bill Richardson.

My understanding is that Chief Judge Vigil will be the Democratic Party’s nominee for the New Mexico Supreme Court in this year’s general election. He will be challenging Justice Judith Nakamura, whom Governor Martinez appointed to the Supreme Court at the end of 2015.

I’m planning to attend this lunch, and hope to see you there!

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NM Supreme Court: Fraudulent concealment doctrine applies to wrongful death claims

The New Mexico Supreme Court has held that the doctrine of fraudulent concealment can toll the statute of limitations for wrongful death claims.

The opinion is Estate of Brice v. Toyota Motor Corporation, written by Justice Maes (Justice Nakamura did not participate).

Chelo Rivera of KRQE has this story about the decision.

 

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10th Circuit declines to revisit Utah polygamy decision

Today the Tenth Circuit denied a petition for en banc review in Brown v. Buhman, the challenge to Utah’s anti-bigamy statute brought by reality television star Kody Brown and his four “sister wives.”

Last month, the Tenth Circuit found that the plaintiffs’ challenge was moot, and vacated the judgment in their favor.

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