Jury can decide whether DOT had constructive notice of tire debris on highway, although no one knows how long it was there

Interstate 25 approaching Santa Fe
Interstate 25 approaching Santa Fe. Photo by John Phelan. Used by permission under Creative Commons Attribution 3.0 Unported License.

Peggy Lujan-Silva was driving on Interstate 25 near Santa Fe, when her car struck tire debris on the highway. Her car rolled over several times, and she was killed. No one knows how long the debris was on the highway.

Ms. Lujan-Silva’s estate sued the New Mexico Department of Transportation for negligently failing to clear the debris from the highway. The Department argued that the estate could not show it had constructive notice, because no one knew how long the debris had been there. The trial court agreed and granted summary judgment.

The Court of Appeals reversed. See Lujan v. N.M. Department of Transportation (Aug. 4, 2014). Judge Vigil‘s opinion explains that although it is unknown when the debris was left on the highway, the Department has a duty to inspect the roads and keep them safe for the public, and “[w]hen there is a duty to inspect, evidence showing that there was a failure to inspect within a reasonable period of time under the circumstances is evidence that the dangerous condition could or should have been discovered but for the untimely inspection.”

The opinion describes testimony from Department employees that they had not received training on removal of litter or debris from the roads, and while Department employees were instructed to remove debris whenever they saw it, there were apparently no regular patrols to look for it. The Court of Appeals determined that this evidence was sufficient to create an issue of fact about whether the Department had failed to inspect I-25 within a reasonable period of time before the accident, and therefore about whether the Department had constructive notice.

The lesson here, for all businesses and organizations that may be targets of lawsuits for injuries caused by dangerous conditions on property (e.g. merchants whose customers may slip and fall; construction site owners who fence out properties to keep out curious kids, etc.), is that it’s important to conduct, and document, regular inspections for dangerous conditions. Doing so will probably not protect you against all lawsuits, but you’ll be better off than if you hadn’t.

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A trip to Justice Serna’s home town

The famous log cabin in Reserve, New Mexico, where Justice Serna was raised
The famous log cabin in Reserve, New Mexico, where Justice Pat Serna was raised

Those who know former New Mexico Supreme Court Justice Patricio “Pat” Serna may, on rare occasions, hear him mention that he hails from the small, western New Mexico town of Reserve, which has a population of between 300 and 400.

Reserve is the seat of Catron County, which is New Mexico’s largest county in land area.

Although larger than Connecticut, Catron County has a population of only 3,725.

I traveled to Reserve this weekend for a sad occasion (the funeral of my great-uncle), but I did make an appellate pilgrimage to the log cabin where Justice Serna was raised along with his seven siblings.

Justice Serna and me at the Catron County Fairgrounds in Reserve, New Mexico
Justice Serna and me at the Catron County Fairgrounds in Reserve, New Mexico

From this humble dwelling, and through his own hard work, Justice Serna rose to the top of the legal profession in our state.

If you are ever in Reserve, do stop by to take a look. The cabin is just south of Reserve’s “downtown” area, on the west side of the road.

At the funeral, I ran into the good justice himself, in his best western attire. He seems to be thoroughly enjoying his well-deserved retirement.


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Timothy Sandefur to speak in Albuquerque on July 31

Timothy Sandefur, a Principal Attorney at the libertarian Pacific Legal Foundation (which sometimes files amicus curiae briefs in New Mexico’s appellate courts), and frequent commentator on legal issues, will speak on July 31 about his new book, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty. The book discusses whether the Constitution’s highest value is liberty or democracy.

The event is sponsored by the Rio Grande Foundation to celebrate Milton Friedman’s 102nd birthday, and is scheduled to begin at 6:00 p.m., and conclude at 7:30 p.m., in Room 2401 at UNM Law School, 1117 Stanford Drive NE, Albuquerque.

You can register here. There is a fee of $10 for light appetizers, non-alcoholic drinks, and a birthday cake.

You should also check out Mr. Sandefur’s blog, Freespace.

As always, if you know of any events that may be of interest to the New Mexico legal community, please drop me a line!

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Tenth Circuit denies en banc review in Guarantee Clause case

Yesterday the Tenth Circuit voted to deny en banc review in Kerr v. Hickenlooper. Judges Hartz, Tymkovich, Holmes, and Gorsuch dissented.

To recap, the Guarantee Clause is located in Article IV, Section 4 of the United States Constitution, and provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government….”

Other than ensuring that no hereditary monarchy can be established in any of the States, it’s not clear what else the Guarantee Clause does, and the Supreme Court has previously held Guarantee Clause claims to be non-justiciable under the political question doctrine.

In March, however, the Tenth Circuit ruled that the political question doctrine did not bar a Guarantee Clause challenge to Colorado’s Taxpayer Bill of Rights (known as TABOR), which requires voter approval of any new tax or tax increase. The challengers’ claim is that TABOR is unconstitutional because it removes the core legislative power of raising taxes from the state legislature and grants it to the people. The Court also ruled that five Colorado state legislators have standing to challenge TABOR because it dilutes their power. I wrote about the decision here.

You should also read this post by Prof. Derek Muller of Pepperdine Law School, who discusses yesterday’s decision at his excellent Excess of Democracy blog.

It’s not clear to me why voter approval of new taxes and tax increases would be “un-republican.” Many states allow their citizens to vote on ballot measures to enact ordinary laws or state constitutional amendments. Will ballot initiatives and referenda now be subject to challenge in federal court? If not, how can we say that initiatives and referenda are “republican” while TABOR is “un-republican”? Judge Gorsuch makes this point (much more eloquently) in his dissent, arguing that there are simply no judicial standards by which a Guarantee Clause claim can be evaluated.

Judge Tymkovich’s dissent makes the point that the panel’s logic could subject almost any state constitutional amendment to a challenge by disgruntled legislators arguing that the provision dilutes or nullifies their legislative power. Thus, for example, Judge Tymkovich cites the Colorado Constitution’s protection of the recreational use of marijuana. Legislators could attack that amendment “on the theory that the provision infringes on the legislative core function of codifying the criminal law.”

I am surprised that en banc review was denied. The Tenth Circuit’s decision strikes at the heart of the relationship between the federal government and the States, and opens the door for federal courts to supervise and overrule the States’ legislative processes in previously unimagined ways. I think this case has a good chance of ending up at SCOTUS.

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Anti-Defamation League’s SCOTUS review is tomorrow

I am a big fan of Dean Erwin Chemerinsky’s yearly review of the Supreme Court’s decisions. I’ve seen his live presentations at the Tenth Circuit Bench & Bar Conference, which are truly impressive because of Prof. Chemerinsky’s deep command of the facts and issues, and his ability to speak at length without any notes.

Tomorrow you can watch Prof. Chemerinsky in action by tuning in to the Anti-Defamation League’s “Supreme Court Review 2014,” which will be livestreamed over the Internet from 10:00 a.m. to 11:30 a.m. Mountain time, directly from the National Constitution Center in Philadelphia.

Dean Chemerinsky will be joined by Frederick Lawrence, the president of Brandeis University, and Deborah Lauter, the ADL’s Civil Rights Director.

In addition to discussing the U.S. Supreme Court’s most interesting decisions from the just-concluded October 2013 Term, the panelists will also be discussing the legacy of Brown v. Board of Education, which was decided 60 years ago.

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NM Court of Appeals, NM AG candidates speak at forum

On Tuesday, July 1, the Albuquerque Bar Association held a forum for the two candidates for the New Mexico Court of Appeals, incumbent Judge Miles Hanisee, the Republican nominee, and his challenger, appellate lawyer Kerry Kiernan, the Democratic nominee. The forum also included the candidates for New Mexico Attorney General, State Auditor Hector Balderas, the Democratic nominee, and former judge Susan Riedel, the Republican nominee. Jason Bousliman of Lewis & Roca moderated the discussion (and gave this blog a kind shout-out).

Mr. Kiernan talked about his clerkship for former Court of Appeals Judge A. Joseph Alarid, and said he has known for a long time that he would like to be an appellate judge. Mr. Kiernan stressed the need to decide cases quickly, noting that it is often stressful for clients to wait long months and even years for a decision. If elected, his priorities would be to write short, concise opinions with clear directions for lower courts, lawyers, and the public. He also thinks the Court of Appeals should consider certifying more cases to the New Mexico Supreme Court.

Judge Hanisee agreed that deciding cases is a priority, but said getting them right is more important. When asked about his judicial philosophy, he said he doesn’t think it is a good thing for a judge to bring a philosophy to a case, whether that be originalism or living constitutionalism. The focus has to be on getting the right result in each case. He also said that the Court of Appeals either is, or is close to being caught up on its work (I didn’t catch exactly what he said on this last point).

After that, the candidates for Attorney General spoke. Susan Riedel stressed her long experience as a prosecutor, as well as her more recent experiences as a judge and as a member of the Public Defender Commission. She said that the AG’s office needs “serious leadership,” and that the primary goal of the office has to be to protect the public. As AG, she would defend the state’s laws, even if she did not personally agree with some of them. She also stressed that she has no further political ambitions, and thus will carry out the duties of the office without an eye towards how her positions will affect her political prospects.

Hector Balderas talked about how he grew up in the northeastern New Mexico community of Wagon Mound. He talked about his experience in fighting governmental corruption in the State Auditor’s office, and stressed his bipartisanship, mentioning several times when he has worked alongside Republicans to investigate corruption. If he elected, his top three priorities would be protecting children, transforming the AG’s Office into a “premier” criminal and civil law enforcement organization, and advocating the creation of a Solicitor General’s office.

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New Mexico Supreme Court upholds “tax lightning” statute

In New Mexico, a state statute provides that residential property taxes cannot be raised more than 3% per year, unless the home is sold, in which case the next property tax assessment can be for the home’s full value.

This means that when a home is sold, the buyers can be subjected to a sharp increase in the property tax, i.e. they get struck by “tax lightning.” It also means that if a home has been sold recently, then the property tax on that home can be much higher than neighboring homes that have not changed hands over the years. This perceived unfairness attracted a legal challenge to the statute.

Yesterday, in Zhao v. Montoya, the New Mexico Supreme Court upheld the statute in an opinion by Justice Petra Jimenez Maes. For more on this decision, read this report by Dan McKay in the Albuquerque Journal.

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Tenth Circuit Scorecard, October Term 2013

The Supreme Court’s October 2013 Term concluded yesterday, so now it’s time to take a look at how our beloved Tenth Circuit fared.

The answer is “pretty well.” The Supreme Court reviewed four cases from the Tenth Circuit, affirming two and reversing two, for a 50% success rate. Also, Judge Timothy Tymkovich has a right to feel good today — he wrote the opinions in both cases that the Supremes affirmed.

For a look at how other the other circuits made out, take a look at the Circuit Scorecard in SCOTUSblog’s Stat Pack for this term. Let’s just say the First, Third, and Eighth Circuits are feeling the pain today, with 100% reversal rates. Perennial contenders, the Ninth and Sixth Circuits, clocked in with 91% and 82% reversal rates, respectively. The winner was the Seventh Circuit, which was affirmed 75% of the time.

And now let’s take a look at the Tenth Circuit cases that the Supreme Court reviewed, in alphabetical order: Continue reading

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10th Circuit rules in favor of same-sex marriage; Judge Kelly of N.M. dissents

This morning the Tenth Circuit issued its much-anticipated decision in Kitchen v. Herbert, affirming the decision of a federal district court striking down Utah’s marriage law, which restricted marriage to one man and one woman, and holding that the United States Constitution requires states to allow same-sex couples to get married.

Judge Carlos Lucero wrote the Court’s opinion, and Judge Paul Kelly wrote an opinion concurring in the Court’s conclusion that the plaintiffs have standing, but dissenting from the holding that the Fourteenth Amendment requires states to allow same-sex marriages. I haven’t had time to read through these opinions, but hope to soon.

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