Erwin Chemerinsky to speak in Santa Fe on April 30

Dean Erwin Chemerinsky will be giving a talk called “An Amazing Time in the Supreme Court” on Thursday, April 30 at noon at the La Fonda Hotel in Santa Fe.

The event is hosted by the New Mexico Chapter of the Federal Bar Association. You can register for it here.

I have heard Dean Chemerinsky speak about the Supreme Court several times. He is a noted scholar who is most well-known for his treatises on federal jurisdiction and constitutional law. His most recent book is The Case Against the Supreme Court, which was published last September.

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Copper Rule affirmed by New Mexico Court of Appeals

Yesterday, in an opinion by Judge Jonathan Sutin, the New Mexico Court of Appeals affirmed the Water Quality Control Commission’s adoption of regulations governing the protection of groundwater at copper mines. See Gila Resources Information Project v. N.M. Water Quality Control Commission.

These regulations, popularly known as the “Copper Rule,” have attracted considerable attention in the news media. I won’t comment on the merits, however, since I represent several parties in this ongoing matter.

UPDATE (April 9, 2015): The Albuquerque Journal has this story about the opinion.

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10th Circuit explains how not to handle an appeal

Yesterday the Tenth Circuit issued a non-precedential order, written by Judge Neil Gorsuch, dismissing the appeal in Alejandre-Gallegos v. Holder, an immigration case.

The order describes the remarkable conduct of appellant’s counsel, who apparently did not cite the record or any legal authority to support his client’s claims, and committed other sundry errors.

Concerned about this performance, the Tenth Circuit looked at other appeals the lawyer had handled, and discovered a pattern of similar conduct. The Court then ordered the clerk’s office to open a disciplinary proceeding against the lawyer.

David Lat discusses the case in more detail at Above the Law.


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Jess Bravin to speak at UNM Law School on April 2

Jess Bravin, the Wall Street Journal’s Supreme Court correspondent, will deliver the John Field Simms, Sr. Memorial Lecture at UNM Law School in Albuquerque on Thursday, April 2, beginning at 4:30 p.m. (The lecture is named for a founding member of my law firm, who later became a justice of the New Mexico Supreme Court).

Mr. Bravin will speak about his acclaimed book, The Terror Courts: Rough Justice at Guantanamo Bay.

Advance registration for this event is required.



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NM Supreme Court denies emergency petition to fill state Senate vacancy

Due to the recent resignation of state Senator Phil Griego, there has been a push to replace him before the current legislative session comes to an end.

Senator Griego represented District 39, a large district that includes parts of six counties. Each of those county commissions has the right to recommend a replacement to Governor Martinez. Because Senator Griego was a Democrat, Governor Martinez would presumably like to quickly appoint a Republican to fill the seat.

Earlier this week, a petition was filed with the New Mexico Supreme Court asking for a writ of mandamus to compel several county commissions to hold emergency meetings to nominate replacements. (Hat tip to Joe Monahan for the link to the petition).

Today, the Supreme Court denied the petition without explanation, according to this report by Matthew Reichbach of the New Mexico Political Report.

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NM Court of Appeals: Dismissal “without prejudice” can have res judicata effect

James and Tracy Turner borrowed money from First New Mexico Bank to finance the purchase and construction of a dairy. Later, the Turners filed a lender liability lawsuit against the Bank.

The Bank filed a motion to dismiss for failure to state a claim, which the trial court granted. The trial court’s order, however, said the Turners’ claims were being dismissed “without prejudice.”

The Turners then filed a new complaint, which the Bank moved to dismiss on claim preclusion grounds (“claim preclusion” is also known as “res judicata”). The Turners appealed, arguing that the first trial court’s dismissal of their complaint “without prejudice” meant that the dismissal could not have res judicata effect. The trial court agreed with the Bank, and the Turners appealed.

As it turns out, the words “without prejudice” don’t necessarily mean that an order has no preclusive effect. Continue reading

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Public trust doctrine does not allow courts to second-guess greenhouse gas regulations

The New Mexico Court of Appeals has rejected a claim that the common-law “public trust doctrine” allows courts to second-guess decisions by the Legislature or administrative agencies about whether, and how, to regulate greenhouse gases.

The Court’s opinion in Sanders-Reed v. Martinez, written by Judge Timothy Garcia, rejected the claim for three reasons:

  • The common law has been superseded by statute. The Air Quality Control Act creates a framework for regulating air pollution, and empowers the Environmental Improvement Board to do so.


  • The Air Quality Control Act allows citizens to propose regulations to the Board, and to appeal the Board’s decisions if they disagree with them. The plaintiffs did not claim that these tools were unavailable to them.


  • Separation of powers principles counsel in favor of rejecting the plaintiffs’ claims, because “the practical effect of a judgment granting Plaintiffs’ requested relief would be to reverse the EIB’s action,” thereby intruding on the powers that the Legislature has granted to the executive branch.

This decision seems correct to me. When the Legislature or administrative agency has not enacted a party’s preferred policy, the party’s remedy should be to ask the Legislature to change the law, or to ask the agency to enact new regulations, not to ask the courts to enact an alternative regulatory scheme.

You can see my earlier coverage of the briefs and oral argument here. In addition, Mark Oswald has this story about the Court of Appeals’ decision in the Albuquerque Journal.

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Ten tips for preserving your record on appeal

Marcia J. Silvers, an attorney from Florida, has published a useful article entitled “How Not to Regret Your Appeal: Ten Tips for Soothing Your Appellate Lawyer” in the Winter 2015 issue of Litigation.

I’m not a huge fan of the title, which seems to imply that we appellate lawyers are out to criticize trial lawyers (we’re not), but the ten tips serve as good reminders of what good trial lawyers can do to help get their cases into appeal-ready shape.

All of the tips are good, but I’ll add a few comments derived from my experience in New Mexico practice:

Tip #1: “Objection, Your Honor!” Ms. Silvers suggests that one way to avoid alienating the jury, and your trial judge, is to “ask the court for a continuing objection.” This can indeed work, but in the past I’ve seen trial lawyers simply state that they’re “taking” a continuing objection. That’s not sufficient. Under New Mexico law, the trial judge must specifically grant you a continuing objection. If she doesn’t, then keep those objections rolling.

Tip #4: “File motions in limine.” I would add that if the trial court denies your motion in limine, it doesn’t necessarily mean you’ve preserved the issue for appeal. Remember to raise the issue again when the objectionable evidence is offered at trial, and explain both why the evidence is improper and how it is causing unfair prejudice to your client.

Tip #9: “Don’t shy away from objecting to improper closing argument.” Over the past six or seven years, I’ve seen a number of cases where blatantly improper arguments were made in closing argument, but where no one objected. While it is theoretically possible for a New Mexico appellate court to address an unpreserved objection under the fundamental error doctrine, this is highly unlikely! Request a sidebar conference, state your objection, and then ask for a curative instruction or mistrial.

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NM court rejects man’s claim that neighbor’s use of wi-fi and cell phone harmed him

The New Mexico Court of Appeals, in an opinion by Judge Jonathan Sutin, has decided Firstenberg v. Monribot, a case that has generated considerable attention in the news media and on some blogs. See here, here, and here.

The plaintiff, Arthur Firstenberg, claims that he suffers from electromagnetic sensitivity (EMS). He sued his neighbor, Raphaela Monribot, for nuisance and prima facie tort, alleging that her use of a cell phone and wi-fi in her own home was damaging his health. He asked for $1,430,000 in damages and an injunction to prevent Ms. Monribot from using any equipment that emits electromagnetic radiation. (Mr. Firstenberg also helped found an organization, the Cellular Phone Task Force, which “is dedicated to halting the expansion of wireless technology because it cannot be made safe.” Good luck with that.)

Not surprisingly, the trial court granted summary judgment against Mr. Firstenberg, and the Court of Appeals affirmed, because he failed to offer scientific evidence establishing that exposure to electromagnetic radiation caused, or is even capable of causing, the injuries that he claimed.

One supposes the trial court could also have based summary judgment on public policy grounds, since declaring electromagnetic radiation to be a nuisance prohibited by tort law would bring our society to a grinding halt. Maybe next time…

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Have lunch with Judge Michael Bustamante

The New Mexico State Bar’s Appellate Practice Section and Young Lawyers division are hosting a brown-bag lunch with Judge Michael Bustamante of the New Mexico Court of Appeals.

The lunch will begin at noon on Friday, March 13, 2015 at the State Bar Center in Albuquerque. Please RSVP with Dolph Barnhouse at

Unfortunately, I will be out of state at that time, but if you’re interested in New Mexico appellate practice, I encourage you to attend.

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