Borrower who failed to make payments can’t be criminally charged for damaging property

by Emil J. Kiehne Posted on April 4, 2014
Wyatt Earp, the Sheriff, not the borrower.
Wyatt Earp, the deputy town marshal of Tombstone, not the borrower.

In 2006 Wyatt Earp (no, not that Wyatt Earp) bought a home on a real estate contract.

(In New Mexico, “real estate contract” is a term of art, which refers to an arrangement in which the buyer agrees to pay the seller in installments. If the buyer fails to make a payment, the seller can terminate the contract and repossess the property.)

In any event, Mr. Earp apparently did not make a required payment in 2009, and the seller terminated the contract.

But before vacating the property, Mr. Earp allegedly removed appliances and fixtures from the home, and left it in a state of disrepair. The State, who made these accusations, charged him with criminal damage to property and embezzlement, and obtained a conviction on both counts.

The problem for the State was that New Mexico law has long recognized that a buyer under a real estate contract has an equitable ownership interest in the property. To be convicted of criminal damage to property, however, one must damage the “property of another” without the owner’s consent, and the embezzlement statute also requires the conversion of another’s property.

Thus, the Court of Appeals, in an opinion (State v. Wyatt Earp) written by Judge Monica Zamora, held (without, of course, approving of the alleged conduct) that Mr. Earp could not have violated these statutes, because he was an owner of the property.

While this decision may have the unfortunate effect of sparing frustrated defaulters who damage property from criminal sanction, that is a consequence of the language in the statutes. The Legislature may want to consider amending the criminal statutes to make it unlawful for purchasers of real estate contracts to damage the property if they default on their obligations. Also, the fact that a buyer is not subject to criminal punishment does not mean that he or she will get off scot free. The seller may have claims in contract or tort.

Do you agree or disagree with this decision? Leave a comment and let us know!

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New Mexico Supreme Court adopts reciprocity in bar admissions

by Emil J. Kiehne Posted on April 3, 2014

Today the New Mexico Supreme Court announced its approval of amendments to the Rules Governing Admission to the Bar, which will allow attorneys who are already admitted to practice law in other states to be admitted to the New Mexico bar without taking the bar exam. The rules go into effect on June 1, 2015 (N.B. as of the time of this writing, the Compilation Commission’s website erroneously states that the amendments will go into effect on June 1, 2014, but I expect that error will be corrected soon).

Kudos are due to our Justices for deciding to join the 40 or so other states which allow admission by motion to attorneys who have already passed the bar exam elsewhere. As I explained in this post last July, requiring experienced attorneys to take the bar exam all over again was an antiquated, unnecessary requirement.

Below is the text of an e-mail from Joey D. Moya, Clerk of the Supreme Court, announcing the change:

“Dear Members of the New Mexico Bench and Bar:

“The Supreme Court of New Mexico announced today the adoption of a new process for admitting experienced attorneys from other jurisdictions into the New Mexico bar without requiring those attorneys to take the New Mexico bar exam.  By adopting this new method for admitting attorneys, New Mexico joins the majority of other states in the country who have adopted similar procedures.  The new process, known as reciprocal admission by motion (sometimes also called reciprocity for short), does not go into effect until June 1, 2015, to allow those entities responsible for administering the new process adequate time to prepare.

“The Court’s decision to adopt reciprocal admission by motion is the culmination of an extensive process that began almost one year ago when the Court’s Board of Bar Examiners submitted a recommendation to adopt reciprocity in New Mexico.  The Court published the Board’s proposal last year for an extended period of public comment and received a large volume of comments from attorneys and the general public.  The Court then sent the comments back to the Board of Bar Examiners for further review and a final recommendation, which was submitted to the Court at the end of last year.  After a careful review of the comments received and the Board’s final proposal, the Court announced today its intention to implement reciprocity in New Mexico next year with some minor revisions to the final proposal submitted by the Board of Bar Examiners.

“The Supreme Court considered adopting reciprocity several years ago but decided not to adopt the practice at that time.  Since then, with advances in technology and communications along with the expansion of the global economy, the transboundary nature of the practice of law has continued to grow and fostered support for the adoption of reciprocity in New Mexico.  By allowing experienced attorneys from other states to be admitted in New Mexico without having to take the bar exam again, the Court has also made it possible for New Mexico attorneys to seek admission in reciprocal states without having to take another bar exam.  Ultimately, by making it easier for attorneys to practice law in multiple jurisdictions, the Court hopes to improve the quality and quantity of legal services available to New Mexico citizens in need of help.

“While the public comments received by the Court revealed widespread support among members of the bar and the business community for the proposal, a significant number of comments from members of the bar also voiced strong opposition to allowing reciprocity in New Mexico.  Among the concerns expressed were fears that an influx of attorneys from surrounding states would have an adverse economic impact on the legal market in New Mexico, but those comments were countered by many other members of the bar pointing out that increased competition and mobility within the legal profession would enhance the quality and quantity of legal services provided to New Mexico citizens while at the same time enhancing the opportunities available to New Mexico attorneys. Some opposed to reciprocity also expressed concern that allowing permanent admission to out-of-state attorneys unfamiliar with the local customs and courtesies of the New Mexico bar would be detrimental to the collegiality and professionalism enjoyed by New Mexico attorneys.  Others also expressed concerns that out-of-state attorneys who do not take the New Mexico bar exam but are allowed to practice here might not be competent to provide legal representation in matters involving unique provisions of New Mexico law.  To address these concerns, the new reciprocity process will require out-of-state attorneys to complete a special educational component to address matters unique to New Mexico law and norms of practice before they can be admitted to the New Mexico bar.  The new reciprocity process also will enhance the Supreme Court’s ability to enforce its ethics rules and disciplinary authority over out-of-state attorneys who practice law in New Mexico.

“The new reciprocity rule amendments and Supreme Court order can be viewed on the New Mexico Compilation Commission’s website at http://www.nmcompcomm.us/nmrules/nmruleset.aspx?rs=15, and the original proposal and public comments can be viewed on the Supreme Court’s website at https://nmsupremecourt.nmcourts.gov/rules/archive.php.”

Joey D. Moya
Clerk of Court and
Chief Counsel
Supreme Court of New Mexico
P.O. Box 848
Santa Fe, NM 87504
505-827-4860

 

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Barbara Vigil to be installed as Chief Justice of the New Mexico Supreme Court

by Emil J. Kiehne Posted on April 2, 2014

 

Chief Justice Barbara J. Vigil
Chief Justice Barbara J. Vigil

This Friday, April 4, Justice Barbara Vigil will become the Chief Justice of the New Mexico Supreme Court.

Her investiture ceremony will take place at 3:00 p.m. in the Supreme Court Courtroom, at 237 Don Gaspar in Santa Fe, with a reception immediately following in the Hall of Chief Justices.

The event is open to the public, but seating is limited.

If you would like to know more about our new Chief Justice, here is my interview with her, conducted during her campaign for election to the Supreme Court.

Congratulations to soon-to-be Chief Justice Vigil!

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Elane Photography relisted for second time

by Emil J. Kiehne Posted on April 1, 2014

The Supreme Court of the United States has relisted Elane Photography for the second time. According to the docket, the nine justices will again consider the case at their conference on this Friday, April 4, and may (or may not) address the case in the order list, which will issue on Monday, April 7, at 7:30 a.m. New Mexico time.

My understanding is that there are all kinds of reasons why a case can be relisted, and of course, nobody outside One First Street knows why.

In any event, for those of you who are following this important case, here are some items to tide you over while waiting for a decision on the cert. petition:

1.  The Harvard Law Review has published this case comment, criticizing the New Mexico Supreme Court’s decision.

2.  Two prominent legal minds, Prof. Michael Dorf of Cornell Law School, and Prof. Richard Epstein of New York University Law School, debated this case at the National Constitution Center in Philadelphia. You can listen to a podcast of the debate here.

3. Prof. Eugene Volokh of UCLA Law School, and Ilya Shapiro of the Cato Institute, published an op-ed in the Wall Street Journal entitled “Choosing What to Photograph Is a Form of Speech.” (The WSJ’s website requires a subscription, but you can obtain access to the entire article by searching for it on Google News).

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Tenth Circuit reverses order granting new trial to Deming, NM’s Reese family in gun case

by Emil J. Kiehne Posted on March 21, 2014
Pro tip for gun shop owners -- if a customer says he plans to take a gun to Mexico to sell it, the correct response is NOT "I don't need to know that."
Pro tip for gun shop owners — if a customer says he plans to take a gun to Mexico to sell it, the correct response is NOT “I don’t need to know that.”

The saga of the Reese family, who owned a gun store in Deming, New Mexico, has become something of a cause célèbre among Second Amendment advocates. They were charged with conspiracy, aiding and abetting straw purchases of firearms, gun smuggling, and money laundering.

Although I didn’t follow the Reeses’ case closely, I gather that some people believe that the federal government targeted them unfairly. And perhaps the government did overreach, because the jury acquitted the Reeses on 24 of the 28 charges against them.

Three of the family members were convicted on four counts of aiding and abetting straw purchases of firearms. A straw purchase occurs when a person falsely represents that he or she is the buyer of a firearm, when in reality it is being bought for someone else.

The federal district court in New Mexico granted the Reese family a new trial because the government withheld favorable information from them. It turned out that one of the witnesses against the Reeses, a sheriff’s deputy, was being investigated by the FBI for his alleged involvement in criminal activities. (The prosecutors didn’t know about it either, but their lack of knowledge was irrelevant). If this information had been disclosed, the Reese family could have impeached him at trial.

This week, however, the Tenth Circuit, in an opinion written by Judge Gregory Phillips, reversed the new trial order, finding that even if this information had been disclosed, there was no reasonable probability that the trial’s result would have been any different. See United States v. Reese.

At pages 6-10 and 17-23 of the opinion, Judge Phillips describes the evidence in detail, and to my mind, it is utterly convincing of their guilt on those charges. The deputy only had a peripheral role at the beginning of the investigation, but the government’s case on the straw purchaser charges was really based on what can only be described as damning, overwhelming evidence. Government agents video-recorded members of the Reese family repeatedly and actively assisting obvious straw purchasers.

Here’s a pro tip for gun shop owners — if a customer who buys a firearm at your store says he plans to take it to Mexico and sell it, the correct response is not “I don’t need to know that.”

But again, like I said before, I didn’t follow this case closely. If you’re a supporter of the Reese family, and think the Court missed something, or think the Reeses are innocent of these charges, please leave a comment and let us know why.

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“Contrary to sound principles of judicial and common sense, we are required to hear this direct appeal….”

by Emil J. Kiehne Posted on March 20, 2014

So said Justice Bosson today in a non-precedential decision, Town of Silver City v. Ferranti, commenting on a statute (NMSA 1978, sec. 35-15-11) which provides a municipality with a right of direct appeal to the New Mexico Supreme Court “from any decision of the district court in every case brought for the violation of an ordinance of said municipality.”

This only goes to show that there are all kinds of obscure and unusual provisions buried in the New Mexico Statutes, waiting to be used, for good or for mischief, depending on your point of view…

The decision itself arose from a situation where a police officer arrested the defendant for smoking marijuana and drinking alcohol from an open container in public. A Silver City ordinance allowed the officer the choice of issuing a citation or making an arrest, and the officer chose the latter option, apparently as a sort of training exercise for a new police officer who was with him.

The defendant argued that the ordinance was unconstitutionally vague because the choice of whether to arrest or issue a citation is left to the officer’s discretion. Understandably, and correctly, the Supreme Court rejected this argument, since it is common for statutes to afford police this sort of discretion, and because of the apparent lack of authority supporting this novel theory.

I expect this sort of argument, if accepted, would have some unintended consequences. Probably more statutes and ordinances would simply require officers to arrest when they have probable cause to do so.

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E-Discovery Expert Maura Grossman to Speak in Albuquerque

by Emil J. Kiehne Posted on March 17, 2014

Well-known e-discovery expert Maura R. Grossman, of the law firm Wachtell, Lipton, Rosen & Katz in New York, will be conducting a CLE seminar this Wednesday, March 19, at the State Bar Center here in Albuquerque.

The seminar’s title is “Fundamentals of Technology Assisted Review,” and you can sign up to attend it at the Federal Bar Association’s registration link.

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Senate confirms Judge Carolyn McHugh to Tenth Circuit

by Emil J. Kiehne Posted on March 12, 2014

Today the Senate voted 98-0 to confirm Utah Court of Appeals Judge Carolyn McHugh to the Tenth Circuit. Thomas Burr has this story about today’s events in the Salt Lake Tribune. For my previous posts on Judge McHugh’s nomination, please see here, here, and here.

Congratulations to Judge McHugh!

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Tenth Circuit holds that Guarantee Clause claim is justiciable

by Emil J. Kiehne Posted on March 10, 2014
The Guarantee Clause means that no monarchy can be established in the USA, but what else does it mean?
The Guarantee Clause means that no monarchy can be established in the USA, but what else does it mean?

The Guarantee Clause (or “Guaranty” Clause) is located in Article IV, Section 4, and provides that “The United States shall guarantee to every State in this Union a Republican Form of Government….”

It’s one of those clauses of the Constitution that receives little attention, mostly because of its uncertain meaning, and because there haven’t been many occasions on which it could be invoked. The Guarantee Clause could probably be invoked if a state were to install a hereditary monarchy, or abolish the right to vote, but aside from such examples, it’s difficult to say whether or how it could apply in litigation.

On Friday, however, the Tenth Circuit rocked the world of law nerds who are interested in the more obscure clauses of the Constitution, holding in Kerr v. Hickenlooper that a Guarantee Clause claim is justiciable. Judge Carlos Lucero wrote the unanimous panel opinion.

The case involves the Colorado Taxpayer’s Bill of Rights (known as TABOR), a part of the Colorado Constitution that was enacted in 1992, and which requires voter approval of any new tax or tax increase. Some plaintiffs, many of them politicians (who apparently don’t like the idea of any obstacle to sticking their hands in the taxpayer’s pocket) challenged the law on several grounds, including a claim that it has deprived our neighbors to the north (Colorado = New Mexico’s Canada) of their right to enjoy a republican form of government.

But despite acknowledging that several U.S. Supreme Court opinions “include language suggesting that Guarantee Clause litigation is categorically barred by the political question doctrine,” the Tenth Circuit held that the challenge to TABOR is not barred by that doctrine. The Tenth Circuit stressed that it was expressing no opinion on the merits.

I’m not an expert on the Guarantee Clause, but it doesn’t seem obvious to me that requiring voter approval of tax increases deprives Coloradans of a republican form of government.

If you have an opinion on this case, by all means please leave a comment. Was the Tenth Circuit right or wrong?

In addition, if you are interested in exploring this interesting issue further, here are some resources you might want to check out:

The TABOR Lawsuit page, which contains links to the pleadings, including some interesting amicus curiae briefs.

This commentary on the Guarantee Clause, from the Heritage Foundation’s Guide to the Constitution.

This law review article by Dean Erwin Chemerinsky: “Cases Under the Guarantee Clause Should Be Justiciable.”   Dean Chemerinsky filed an amicus brief in this case supporting the plaintiffs.

This series of posts by Rob Natelson of the Independent Institute, vigorously arguing that TABOR does not violate the Guarantee Clause.

Commentary here and here by Prof. Derek T. Muller of Pepperdine University Law School, at his Excess of Democracy blog, addressing Kerr v. Hickenlooper.

Commentary here and here by Prof. Michael Ramsey of the University of San Diego School of Law at the Originalism Blog.

(If you know of any other articles or blog posts about this case to which I should link, please e-mail me or leave a comment).

 

 

 

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