Some criticism of Mora County’s ordinance banning oil and gas drilling

by Emil J. Kiehne Posted on February 18, 2015

In the Weekly Standard, Joseph Bottum has written a story called “Fracking the Constitution: Secessionism on the Left,” which criticizes the Mora County ordinance banning oil and gas drilling. (Hat tip to Overlawyered).

Among other things, the ordinance purports to deprive corporations (and individuals who oppose the ordinance) of their rights under the First and Fifth Amendments, and to confer rights on geologic features such as aquifers and streams. Unsurprisingly, the ordinance was recently struck down by federal district court judge James O. Browning. If you have some spare time, the 199-page opinion in SWEPI, LP v. Mora County makes for some interesting reading. 

But what Bottum finds most interesting is Section 11 of the ordinance, which provides that if “other units and levels of government” try to overturn the ordinance, the Mora County Commission may consider “actions to separate the County from the other levels of government….”

Somehow I doubt that we’ll see an independent Mora County in the future, but it will be interesting to see if Mora County appeals the decision to the Tenth Circuit.

 

 

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“Meet the New Mexico judge who sentences more people than any other”

by Emil J. Kiehne Posted on February 18, 2015

Joe Palazzolo of the Wall Street Journal’s Law Blog has this interesting post about Judge Robert C. Brack, a federal district court judge in Las Cruces, and reports that he has sentenced 6,708 criminal defendants over the past five years, more than any other federal judge in the country.

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Cop-killer Michael Astorga’s convictions upheld by NM Supreme Court

by Emil J. Kiehne Posted on February 17, 2015

In March 2006, Michael Astorga shot Bernalillo County Sheriff’s Deputy James McGrane during a traffic stop. On Friday, in an opinion by Justice Chavez, the New Mexico Supreme Court rejected Astorga’s arguments on appeal and upheld his conviction for first-degree murder and other crimes.

On appeal, Astorga raised five arguments: (1) that he had suffered from ineffective assistance of counsel; (2) that the trial court improperly excluded evidence of a prosecution witness’s prior inconsistent statement; (3) that the prosecutor improperly asked an alibi witness about another murder that Astorga was allegedly involved in; (4) that the evidence was insufficient to support a finding that Astorga acted with the deliberation required for first-degree murder; and (5) that the trial court should have granted a change of venue.

In addition, Scott Sandlin has this report on the decision in the Albuquerque Journal, and Elizabeth Reed and Blair Miller have this report at KOB.com.

 

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Chief Justice Vigil: Judiciary Needs More Funding

by Emil J. Kiehne Posted on February 13, 2015

Chief Justice Barbara Vigil has published this editorial in the UNM Daily Lobo, making the case for an increase in funding to the state judiciary. Among other things, she proposes creating two new judgeships in Las Cruces and Albuquerque, and paying jurors the minimum wage.

 

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Does Ted Cruz’s legal work in New Mexico mean he’s a hypocrite? Nope.

by Emil J. Kiehne Posted on February 12, 2015

Yesterday, David Corn of Mother Jones Magazine published the following article: “As a Lawyer, Ted Cruz Defended Huge Jury Awards. As a Politician, He Opposed Them.”

The article describes Ted Cruz’s involvement in two New Mexico appellate cases while in private practice, Keith v. ManorCare, Inc. and Selk v. Res-Care New Mexico, Inc. In those cases, Cruz represented the plaintiffs, and defended huge punitive damages awards in nursing home negligence cases; $50 million in Keith, and $49.2 million in Selk. (Disclosure: I was part of the legal team that overturned the Keith verdict on appeal, and fought against Cruz).

Corn implies that Cruz is a hypocrite, and says his involvement in Keith and Selk “does raise a question: How could the senator who hails tort reform argue in favor of preserving the megamillion-dollar jury awards that tort reform advocates decry and seek to eliminate?”

The answer is that when attorneys represent clients, they are presenting the clients’ positions and arguments, and not necessarily their own. New Mexico Rule of Professional Conduct 16-102(B) explicitly provides that “A lawyer’s representation of a client … does not constitute an endorsement of the client’s political economic , social or moral views or activities.” Indeed, Cruz would have acted unethically if he had done anything other than zealously argue to reinstate the punitive damages awards that his clients obtained.

Reasonable people can disagree with Ted Cruz’s political positions, and there may be many good reasons not to support him for President, should he choose to seek that office, but his representation of the plaintiffs in Keith and Selk is not one of them.

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NM Court of Appeals to decide whether “public trust” doctrine requires state to regulate greenhouse emissions

by Emil J. Kiehne Posted on January 28, 2015

According to this report by Staci Matlock in the Santa Fe New Mexican, the Court of Appeals heard oral argument in a case brought by a teenager, Akilah Sanders-Reed, asking the Court to hold that the “public trust” doctrine requires the New Mexico government to regulate greenhouse gases.

Ms. Sanders-Reed’s claims were rejected by the district court on the ground that the State’s ordinary regulatory process is where greenhouse gas regulations should be enacted, if at all.

The case is captioned Sanders-Reed v. Susana Martinez, and the Court’s oral argument notice states that this case will be decided by Judges Michael Vigil, Timothy Garcia, and Miles Hanisee.

If you would like to read the briefs, an organization called Our Children’s Trust has helpfully posted links to Ms. Sanders-Reed’s brief-in-chief, the State’s answer brief, and Ms. Sanders-Reed’s reply brief.

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NM Court of Appeals holds oral argument in assisted suicide case

by Emil J. Kiehne Posted on January 27, 2015

Yesterday afternoon, before a packed courtroom, the New Mexico Court of Appeals held oral argument in the assisted suicide case, Morris v. King. In no particular order, here are my impressions of the oral argument:

1.  The Attorney General’s office, represented by Scott Fuqua, defended the statute banning physician-assisted suicide, arguing that the decision to approve, or not approve, the practice of physician-assisted suicide is “quintessentially a legislative decision,” and not one for the courts.

2. Mr. Fuqua at first seemed to concede that an individual has some sort of right to end his or her own life, but not a right to a physician’s aid in committing suicide. This argument was a bit confusing, and drew some questions from the panel attempting to clarify it. For example, Judge Vanzi cited Roe v. Wade and said it would not make much sense to say that a woman has a right to an abortion, but not to the assistance of a physician in obtaining one; similarly, what sense would it make to say that a person has a fundamental right to commit suicide, but not to obtain a doctor’s help in doing so?

3.  Eventually, Mr. Fuqua said that the Attorney General’s office agreed with the U.S. Supreme Court’s 9-0 decision in Washington v. Glucksberg, 521 U.S. 702 (1997), which rejected the existence of a constitutional right to commit suicide or to obtain anyone else’s assistance in committing suicide. He asked the Court to reject the recognition of a similar right under the New Mexico state constitution. Continue reading →

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Oral argument in New Mexico assisted suicide appeal to be heard on January 26

by Emil J. Kiehne Posted on January 23, 2015

One of the more controversial cases pending before New Mexico’s appellate courts is Morris v. King (which will likely be renamed soon as Morris v. Balderas), which asks whether New Mexico’s statute banning physician-assisted suicide, NMSA 1978, section 30-2-4, violates the New Mexico Constitution.

Last year, Judge Nan Nash found that the statute violated Article II, section 4 of the New Mexico Constitution, which protects rights to liberty, safety, and happiness.

The Attorney General’s Office appealed this decision, and the Court of Appeals will hear oral argument at 2:00 p.m. on Monday, January 26, at the Pamela B. Minzner Law Center, 2211 Tucker NE., Albuquerque, NM 87106.

I hope to attend the argument, and will report back if I’m able to attend. (Disclosure: I filed an amicus curiae brief on behalf of some state legislators who support the Attorney General’s position that the statute is constitutional).

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Reies Lopez Tijerina, leader of the Tierra Amarilla courthouse raid, dies at 88

by Emil J. Kiehne Posted on January 20, 2015

Reies Lopez Tijerina, the land grant advocate who led the infamous raid on the Tierra Amarilla courthouse in 1967, died yesterday at age 88.

The Albuquerque Journal has this obituary, written by Colleen Heild and Thom Cole.

If you would like to know more about Mr. Tijerina and the land grant movement, I recommend Tijerina and the Courthouse Raid by Peter Nabokov, which I read last year. The book describes the background of the land grant movement in northern New Mexico, and Mr. Tijerina’s organization, the Alianza Federal de Mercedes, which sought to restore ownership of the land grants to the descendants of the original owners.

In New Mexico, history is never over.

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NM Supreme Court affirms reappointment of judge who lost retention election

by Emil J. Kiehne Posted on January 20, 2015

According to this report in the Albuquerque Journal, on Friday the New Mexico Supreme Court rejected a petition to nullify Governor Martinez’s reappointment of Judge Albert Mitchell to a seat on the Tenth Judicial District Court.

The Journal story says that Chief Justice Vigil explained that the New Mexico Constitution “doesn’t prohibit a nominating commission from considering — or the governor from appointing — an otherwise qualified applicant for a judicial vacancy based on the applicant’s non-retention to the office in the preceding election.”

In November, Judge Mitchell failed to obtain sufficient votes to be retained in office, but he applied to fill the vacancy, and the Judicial Nominating Commission sent his name to the governor.

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