Ken Starr to speak in Albuquerque on January 23 (tomorrow)

Ken Starr, a former judge on the D.C. Circuit who also served as solicitor general under the first President Bush, also known as the independent counsel who investigated President Bill Clinton, will be speaking at two events in Albuquerque tomorrow.

At noon, Judge Starr will be speaking about his new book, Contempt: A Memoir of the Clinton Investigation, at a luncheon at the Embassy Suites hotel in Albuquerque. The Rio Grande Foundation is sponsoring the talk, and you can register here. The cost is $55.

At 5:30 p.m., Judge Starr will be delivering the John Fields Simms, Sr. Memorial Lecture at UNM Law School. His lecture is entitled “Investigating the President, Now and Then: Living in a Constitutional Quagmire,” and has been approved for 1.0 hours of New Mexico CLE credit. Attendance at this lecture is free, but if you want to attend, you have to register here.

Posted in Events | Tagged , | Leave a comment

10th Circuit: BLM not entitled to key to inspect well sites on private land

In Maralex Resources, Inc. v. Barnhardt, the Tenth Circuit reversed a district court’s order that had granted the Bureau of Land Management (BLM) authority to require a private landowner to provide it with a key to access and inspect oil and gas wells. Although located on private land, the wells produced oil and gas that originated, in part, from tribal mineral interests as a result of a communitization agreement among several landowners.

BLM relied on a statute granting it authority to “inspect lease sites on Federal or Indian lands,” and argued that the statute was ambiguous because it did not address BLM’s authority to inspect wells on private land that are producing oil and gas from tribal mineral interests. BLM thus argued that the courts should defer to its interpretation of the statute.

In an opinion by Judge Mary Beck Briscoe, the Tenth Circuit held that the statute’s silence did not render it ambiguous, and that authority to require the landowner to provide BLM with a key could only be provided by statute. The Court thus reversed and directed judgment in the landowner’s favor.

This opinion is also interesting because it provides a rare instance of the Tenth Circuit exercising its discretion to review an arguably unpreserved claim. A federal appellate court has the discretion to do so, especially when (1) a purely legal claim is at issue; (2) when the parties had a full opportunity to brief the issue and develop the factual record; and (3) when the district court has either made factual findings or the facts are undisputed.

Of course, it’s far better to preserve a claim in the trial court (or agency) than to rely on the appellate court’s discretion to reach an unpreserved claim. But in the right case it can lead to appellate victory, as it did here.

Posted in Opinions and Analysis, Preservation of Error, Tenth Circuit | Tagged , , , | Leave a comment

Chief Justice Nakamura delivers “state of the judiciary” address to the Legislature

Yesterday, Chief Justice Judith Nakamura addressed a joint session of the Legislature to address the state of the New Mexico judiciary. You can read about it here and here.

Posted in News | Leave a comment

NM Supreme Court issues opinion explaining its suspension of attorney Eric Dixon

In November 2018, the New Mexico Supreme Court suspended prominent Portales lawyer Eric Dixon from the practice of law for at least nine months.

Yesterday, the Court issued a unanimous opinion explaining its decision. The Court stated that Mr. Dixon made false statements to a state district court and breached his duty of competence in representing a client. An aggravating circumstance was that Mr. Dixon had previously been censured for driving his car at a state district court judge.

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

I’m back!

I’m happy to announce that my law blog is back in business. I took the blog offline after being sworn in as a judge on the New Mexico Court of Appeals in October 2017. I campaigned to keep my seat, but was washed away in the Blue Tsunami of 2018. My term in office expired at the end of December 2018.

Although it was a great experience to put on these robes, I’m now back in private practice!

It was a great experience to work on an appellate court, and to meet hundreds of people all over our great state while on the campaign.

I’ve now rejoined the Modrall Sperling law firm as a shareholder, and plan to continue my appellate practice. A happy result of the election is that I can now restart this website.

I look forward to discussing events in New Mexico’s appellate courts, and in the Tenth Circuit, with you!

Posted in Uncategorized | Leave a comment

RIP: Former New Mexico Supreme Court Justice Dan Sisk

I regret to report that former Justice Daniel A. Sisk, who served on the New Mexico Supreme Court in 1970, has passed away.

Mr. Sisk was also a “name” partner at my law firm. Unfortunately, I never had the opportunity to practice with him, but many of my colleagues did, and they say that he was the “consummate gentleman lawyer.”

My condolences to Justice Sisk’s family.

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

E-filing starts at the New Mexico Court of Appeals on August 21!

The long-awaited day is finally at hand! On Monday, August 21, e-filing begins at the New Mexico Court of Appeals. It may be a coincidence that this is the date of the total solar eclipse, but then again, it may not be…

You can (and should) read all about e-filing here.

It looks like e-filing will be mandatory right away, except for pro se litigants. When e-filing started at our Supreme Court earlier this year, there was a grace period of a couple of months, in which one could file documents via e-filing or in person. But since the Court of Appeals has waited so long for e-filing, it is jumping into the deep end right away.

Also, if you have cases pending at the Court, you should add yourself to the service list for those cases so that you will receive notice of any filings.

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

NMCA: Corpus delicti rule satisfied by circumstantial evidence

The Court of Appeals, in State v. Platero, has overturned a trial court order dismissing a vehicular homicide charge before trial because the State did not plan to offer any expert testimony that the rollover car crash at issue killed the victim. No one (except the defendant) witnessed the accident, and the victim was found some distance away from the vehicle. The defendant claimed that he had not been driving the vehicle.

The corpus delicti rule “reflects the simple principle that a crime must be proved to have occurred before anyone can be convicted for having committed it.” Black’s Law Dictionary (10th ed. 2014).

Judge Timothy Garcia’s opinion explains that a pretrial motion is not usually a proper method of testing the factual sufficiency of the State’s evidence before trial, and expert testimony is not necessarily required. Here, there was circumstantial evidence that the defendant was driving (his blood was found on the driver’s side of the vehicle) and that the crash killed the victim (she was found with visible signs of trauma a short distance from the vehicle).

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

Register now for the 2017 New Mexico Appellate Practice Institute

Registration is now open for this year’s New Mexico Appellate Practice Institute, the annual all-day CLE program sponsored by the Appellate Practice Section. The seminar will take place on Friday, September 15, at the State Bar Center in Albuquerque.

Until August 15, you can register (at this link) for the early-bird rate of $239. After that, the price goes up. I’m not sure how high … but do you really want to find out?

As usual, this year’s program is excellent:

  • Our keynote speaker is Judge James Graves of the U.S. Court of Appeals for the Fifth Circuit.
  • A distinguished panel will show you how to make use of extraordinary writs in your practice.
  • As usual, we will have updates on recent appellate developments in caselaw, and hear from the clerks of our Court of Appeals and Supreme Court.
  • And finally, legendary appellate mediator Robert Rambo will talk about ethical issues on appeal.

I hope to see you there!

Posted in Appellate Practice, Events | Tagged | Leave a comment

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