Don’t forget to register for tomorrow’s New Mexico Appellate Practice Institute

by Emil J. Kiehne Posted on November 21, 2013

This is just a reminder that the New Mexico State Bar’s 24th Annual Appellate Practice Institute will be held tomorrow (November 22) at the New Mexico State Bar’s offices in Albuquerque.

The program looks spectacular:

  • Judge Stephanie Seymour of the U.S. Court of Appeals for the Tenth Circuit will discuss her experience on that court.

 

  • Justice Barbara Vigil of the New Mexico Supreme Court, and Judge Linda Vanzi of the New Mexico Court of Appeals will discuss what it’s like to go from being a district court judge to serving on an appellate court.

 

  • Ed Ricco and Sue Herrmann will give their annual update on developments in New Mexico appellate practice.

 

  • Alice Lorenz and Margaret Caffey-Moquin will discuss supersedeas bonds.

 

  • Present candidate for the New Mexico Court of Appeals, Kerry Kiernan, and Larry Montaño of Holland & Hart, will give a presentation about preservation of error in bench trials.

 

  • Steve Tucker and Mark Hirsch will give a talk called “The Ethics of Wearing Two Hats – Original and Appellate Jurisdiction.”

 

  • And finally, you can learn everything you could possibly want to know about docketing statements and petitions for certiorari from Paul Fyfe, chief of the New Mexico Court of Appeals’ Prehearing Division, Andrew Montgomery, and Nancy L. Simmons.

 

 

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New Mexico adopts disclosure requirement for amicus curiae briefs

by Emil J. Kiehne Posted on November 6, 2013

The New Mexico Supreme Court has announced a new disclosure requirement for amicus curiae briefs in the state appellate courts.

Effective on December 31, all amicus curiae briefs “shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such a monetary contribution.” You can view a redline version of the amendment to New Mexico Rule of Appellate Procedure 12-215(F) here.

As the Appellate Rules Committee’s Commentary explains, the new language is modeled after U.S. Supreme Court Rule 37.6, and is not intended to deter the filing of any amicus brief, but to increase transparency in amicus curiae filings. The concern that this rule addresses is that parties may fund amicus briefs as an end run around the page limits for appellate briefs, or to create the appearance of widespread support for a party’s position. Certainly, if an organization does not feel strongly enough about a case to fund its own amicus brief, that is something the appellate courts should be able to consider in evaluating the brief’s credibility.

Please note that the new rule is also not meant to deter coordination between a party and an amicus curiae who supports that party’s position. In fact, that sort of coordination is valuable to ensure that the appellate courts do not receive “me too” amicus briefs which merely state the party’s position. An amicus curiae brief is most valuable when it provides arguments or insights that a party’s brief does not or cannot provide.

In the interest of full disclosure, I should say that I proposed this amendment to the Appellate Rules Committee. I believe that the disclosure requirement will promote the integrity of the appellate process, and am happy that our Supreme Court has seen fit to adopt it.

 

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NM Court of Appeals restricts scope of child abuse reporting statute

by Emil J. Kiehne Posted on November 3, 2013

Last week, in State v. Strauch (Oct. 28, 2013), the Court of Appeals held that New Mexico’s child abuse reporting statute imposes obligations only on certain listed professionals, despite the statute’s language saying that it applies to “every person.” This decision sharply limits the scope of the statute, and I think the decision is mistaken.

The defendant was accused of sexually abusing his daughter, and the State sought to question a social worker from whom the defendant obtained counseling, and from the defendant’s wife, who attended some of the counseling sessions.

The defendant claimed that his discussions with the social worker were privileged under Rule of Evidence 11-504(B), which provides that a “patient” has a privilege not to disclose communications made for the purpose of “diagnosis and treatment,” but that privilege does not apply to communications “that the physician, psychotherapist or patient is required by statute to report to a public employee or state agency.”

New Mexico’s child abuse reporting statute, NMSA 1978, Sec. 32(A)-4-3(A), provides that “[e]very person, including a licensed physician” and several other categories of professionals, such as school teachers and law enforcement officers, has an obligation to report a “reasonable suspicion” of child abuse to the authorities.

The State argued that this case was very simple — because “every person” has an obligation to report child abuse, the privilege did not apply. Period, end of story. The Court of Appeals, however, did not agree. Continue reading →

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NM Supreme Court same-sex marriage arguments will be streamed on the Internet

by Emil J. Kiehne Posted on October 22, 2013

According to Steve Terrell of Roundhouse Roundup, tomorrow the New Mexico Supreme Court will take a bold step into the 21st Century, and will stream the oral arguments on same-sex marriage live over the Internet. As far as I know, this is the first time that the Court has done so.

You will apparently be able to watch the argument at this link from KOAT. The argument is scheduled to begin at 9:00 a.m. MDT, and is scheduled to last for two hours.

Let’s hope that 2014 will bring e-filing to our appellate courts too . . .

 

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Defendant can recover attorney’s fees even where insurer provides defense, says NM Court of Appeals

by Emil J. Kiehne Posted on October 21, 2013

After buying a home in Elephant Butte, Star Varga discovered construction defects and sued the seller, the seller’s broker, and her own brokers. The trial court granted summary judgment to Ms. Varga’s own brokers. Those brokers then asked to be awarded over $71,000 in attorney’s fees for defending the lawsuit, based on a clause in the purchase agreement which provided that in the event of a dispute, the prevailing party would be entitled to recover reasonable attorney’s fees.

At the attorney’s fee hearing, the trial judge asked whether an insurer had provided the brokers with a defense. The brokers’ attorney answered that an insurer had indeed provided a defense, and that any award of attorney’s fees would be turned over to the insurer. The trial judge refused to award any attorney’s fees because the brokers themselves had not incurred any attorney’s fees. The trial judge said he would have considered awarding fees if the brokers had had to shell out attorney’s fees from their own pockets. Continue reading →

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Jemez Pueblo will ask 10th Circuit to review claim to ownership of Valles Caldera

by Emil J. Kiehne Posted on October 14, 2013
Valles Caldera by Emil Kiehne, Copyright 2013
Valles Caldera by Emil Kiehne, Copyright 2013

T.S. Last has this story in the Albuquerque Journal, reporting that Jemez Pueblo will appeal the decision by U.S. District Judge Robert Brack to dismiss the Pueblo’s lawsuit to recover ownership of the Valles Caldera. Last year I wrote about the lawsuit here.

I have not read the judge’s decision myself, but according to the story the court held that Jemez Pueblo’s claim is barred by a statute of limitations. The Valles Caldera was deeded to the Baca family in 1860, and they sold it to the United States in 2000. The court apparently said that the Indian Claims Commission Act set up a commission in 1946 to consider tribal land claims that had accrued as of that time, and because the Pueblo waited till 2012 to bring their lawsuit, that was too late.

The Valles Caldera is, by common consent, one of the most beautiful places in New Mexico, and one can certainly understand the Pueblo’s desire to reclaim ownership of it. This appeal will doubtless be an extremely interesting one to watch.

 

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Law-related events in Albuquerque this week

by Emil J. Kiehne Posted on October 8, 2013

This Friday, October 11, two significant law-related events will be occurring here in Albuquerque:

1.  The Federal Bar Association will be hosting prominent legal scholar Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University. Prof. Turley will talk about “The History, Reform, and Proposed Expansion of the U.S. Supreme Court.”

This event will begin with lunch at 11:30 a.m., with the program to follow. The location is Room 2401 at UNM Law School, 1117 Stanford Drive NE. You can register for the event here ($15 for members of the FBA, $30 for non-members), and the deadline for doing so is tomorrow, October 9.  One hour of CLE credit is available.

By the way, Prof. Turley also maintains the Res Ipsa Loquitur law blog, which is well worth reading.

2.  The New Mexico Defense Lawyers Association will hold its Annual Meeting from 11:30 a.m. to 5:00 p.m. at the Hotel Andaluz, 125 South Second Street NW.

The program will begin with awards to the Outstanding Civil Defense Lawyer of the Year, William P. Slattery of the Hinkle Hensley law firm, and to the Young Lawyer of the Year, Erica R. Neff of O’Brien & Padilla.  I have never met Ms. Neff, but I have worked with Mr. Slattery, and can say that he absolutely deserves this award.  Mr. Slattery is one of the most highly-regarded medical malpractice defense lawyers in the state, and is known for his zealous, ethical, and highly competent work.

The new dean of UNM Law School, David J. Herring, will speak during lunch.

The lunch will be followed by two CLE programs:

The first program, from 1:30 to 3:00 p.m., will feature Douglas R. Richmond of Aon Risk Services, whose presentation is titled “Pants on Fire: False Testimony by Clients and Witnesses.”

The second program, from 3:15 to 4:15 p.m., is titled “Decorum and Civility in the Modern Courtroom,” and will feature three judges from the Second Judicial District Court – the Hon. Carl J. Butkus, the Hon. Valerie A. Huling, and the Hon. Denise Barela Shepard. The moderator will be my law partner, Lorena Olmos.

I hope you can make it to one of these terrific events.

 

 

 

 

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Celebrate the First Monday in October by listening to these SCOTUS previews

by Emil J. Kiehne Posted on October 7, 2013

For the appellate lawyer, the First Monday in October is a day that makes the heart sing, a day when the world seems fresh again. The opening of the Supreme Court’s new term is like Christmas and the Fourth of July rolled into one.

Today should be a holiday. After all, the executive branch has President’s Day, but the Supreme Court and Congress don’t have their own special days. That doesn’t seem very co-equal to me … but I digress.

In homage to this great day, and to help you prepare for this term’s coming attractions, here are links to some interesting Supreme Court previews for your daily commute or workout (most, if not all, of these talks can also be found on iTunes). Of course, if you know of any others that I should post here, please let me know:

1.  The American Constitution Society, an organization made up primarily of liberal lawyers, judges, and academics, has this preview which features the following participants:

  • Pamela Harris, Visiting Professor of Law, Georgetown University Law Center (moderator)
  • Randy Barnett, Georgetown University Law Center
  • Joshua Civin, NAACP Legal Defense and Educational Fund, Inc.
  • Andrew Pincus, Mayer Brown LLP; Co-Founder and Co-Director, Yale Law School Supreme Court Advocacy Clinic
  • David Strauss, University of Chicago Law School; Editor, Supreme Court Review

2.  The Brennan Center for Justice at NYU Law School hosted this preview featuring the following participants:

  • Andrew Cohen (moderator)
  • Amy Howe, Editor, SCOTUS Blog
  • Nicole Austin-Hillery, Brennan Center
  • Prof. Garrett Epps, University of Baltimore Law School

3.  The Cato Institute, a libertarian think tank, sponsored this preview featuring the following participants:

  • Ilya Shapiro, Cato Institute
  • Howard Bashman of the famed How Appealing blog.
  • Tom Goldstein of the equally famous SCOTUS Blog.
  • Marcia Coyle, reporter for the National Law Journal.

4.  The Federalist Society, the famed organization for conservative and libertarian lawyers and judges, sponsored this preview which features the following participants:

  • Mr. Michael A. Carvin, Partner, Jones Day
  • Hon. Mary Beth Buchanan, Ethics and Reputational Risk Officer, United Nations
  • Ms. Megan L. Brown, Partner, Wiley Rein LLP
  • Prof. Neal K. Katyal, Georgetown University Law Center
  • Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center
  • Moderator: Ms. Jan Crawford, CBS News Chief Legal Correspondent

5.  The Heritage Foundation, a conservative think tank, sponsored this preview featuring:

  • Paul Clement, former Solicitor General and partner, Bancroft PLLC
  • John Elwood, Partner, Vinson & Elkins LLP

6.  Smithsonian Associates hosted this preview featuring:

  • Donald Verrilli, Solicitor General of the United States
  • Jess Bravin, Wall Street Journal
  • Tom Goldstein of SCOTUS Blog
  • Allison Zieve, Director, Public Citizen
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Comments on changes to New Mexico’s judge excusal rule

by Emil J. Kiehne Posted on October 4, 2013

In an earlier post, I discussed the New Mexico Supreme Court’s proposed amendments to the rule governing the peremptory excusal of judges. The Court invited comments from the bar, and the period for submitting comments closed on September 27.

You can read the comments here. As expected, the proposed amendments have attracted a great deal of interest. While some members of the bar are in favor of the proposal, many more have expressed concerns, with a preponderance of criticism coming from civil and criminal defense lawyers (my own firm submitted comments too).

Concerns about the proposed amendments generally focus on several themes:

1.  The proposal would treat all parties on one side of the “v.” as a single side entitled to only one excusal, regardless of whether their interests are in conflict with one another.

2.  The Court is concerned about abuses of the present rule, but the proposed rule would open other avenues for abuse. As just one example, the new rule prevents parties from excusing a judge after he or she has presided over a case for more than 90 days. A plaintiff could sue several defendants, and wait 91 days to serve them, thus preventing any of the defendants from filing an excusal.

3.  The new rule does not address third-party practice at all, so it is unclear how it would apply to such cases.

4.  Several commenters express concern that the proposed limits on peremptory excusals will lead to an increase in motions for recusal, with all of the unpleasantness and consumption of time that such motions entail.

5.  Other commenters, including a district judge, argue that if certain judges are routinely excused from cases, that is not the result of an abuse of the rule, but rather indicates that some judges are simply not fair or qualified.

In the appellate courts, where most of my work occurs, there is no peremptory excusal rule, so I don’t have a great deal of experience in how the rule works in practice. But it does appear that the commenters have expressed valid concerns about the proposed amendments, and in light of those concerns, any changes to the rule should be made slowly.

Do you have any thoughts about the proposed amendments? If so, please feel free to leave a comment.

 

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