NM Court of Appeals clarifies standards for reverse discrimination claims

In Garcia v. Hatch Valley Public Schools, the plaintiff, a female school bus driver of German descent (with a Hispanic surname by marriage), alleges her firing was the result of racial and national origin discrimination. She sued the defendant school district under New Mexico’s Human Rights Act, but lost in the trial court.

The Court of Appeals reversed in an opinion by Judge Zamora. First, the Court held that “national origin discrimination claims based on the ethnic distinction between Hispanics and non-Hispanics are actionable” under the Human Rights Act, rejecting the school district’s argument that because it was unaware of plaintiff’s German origin, it could not have engaged in national origin discrimination.

More interestingly, the Court addressed the standard for proving a reverse discrimination claim. Ordinarily, in discrimination cases, the plaintiff must prove that he or she is a member of a racial minority, but that obviously won’t work in cases of reverse discrimination, where the plaintiff is by defination a member of the racial majority.

Some federal courts of appeals hold that a reverse discrimination plaintiff must instead prove that “background circumstances” show that the defendant engaged in racial discrimination by a member of the majority. This standard is higher than that in ordinary discrimination cases, requiring the reverse discrimination plaintiff to demonstrate “intentional discrimination at the outset.”

The Court of Appeals rejected this test, and instead held that a reverse discrimination plaintiff need only show that he or she is a member of a “protected group,” which includes whites. The Court rejected the heightened test for reverse discrimination because it is unclear what “background circumstances” consist of, and because it treats reverse discrimination plaintiffs differently, which is contrary to the principle that all racial discrimination is abhorrent, whether directed at minorities or at members of the majority. Moreover, the “protected group” standard “is more workable in regions where it is becoming more common for a white person to be in the majority.

This result seems correct to me. Anti-discrimination laws exist to promote racial equality, so it makes little sense to treat some victims of racial discrimination less favorably than others.

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The lawsuit challenging Judge Nakamura’s appointment to the NM Supreme Court lacks merit

Complaint against Judge NakamuraAccording to this report by Phaedra Haywood in the Santa Fe New Mexican, disbarred lawyer Stuart Stein has filed a lawsuit challenging Judge Judith Nakamura’s appointment to the New Mexico Supreme Court on the ground that the Judicial Nominating Commission could not meet until after Justice Richard Bosson left office on October 31. The Commission met on October 19 (I wrote about that meeting, and Mr. Stein’s participation in it, here).

In my opinion, this lawsuit is completely without merit:

Although I haven’t seen a copy of the complaint, Mr. Stein’s claim appears to be based on Article VI, Section 35 of the state constitution, which governs the selection of judges to New Mexico’s appellate courts. The relevant language is as follows:

“Upon the occurrence of an actual vacancy in the office of justice of the supreme court or judge of the court of appeals, the commission shall meet within thirty days and within that period submit to the governor the names of persons qualified for the judicial office and recommended for appointment to that office by a majority of the commission.”

Evidently, Mr. Stein’s allegation is that until Justice Bosson retired on October 31, there was no “actual vacancy” on the Supreme Court, and the Nominating Commission could not meet until after that date.

But this argument overlooks the principle that constitutional provisions are not read in isolation, but as a whole. Article VI, Section 35 also provides as follows:

The governor shall fill a vacancy or appoint a successor to fill an impending vacancy in the office of justice of the supreme court or judge of the court of appeals within thirty days after receiving final nominations from the commission by appointing one of the persons nominated by the commission for appointment to that office.” (emphasis added).

The reference to “an impending vacancy” plainly contemplates that the Judicial Nominating Commission may meet before a justice of the Supreme Court actually leaves office. Rather, the Commission may act when a judicial vacancy is “impending.”

In addition, Article VI, Section 33 provides in part that judicial office “becomes vacant upon the date of the death, resignation or removal by impeachment of the justice or judge.” (emphasis added). Thus, the vacancy at the Supreme Court occurred when Justice Bosson submitted his resignation to Governor Martinez, not when he actually packed up his office and left the Supreme Court building.

As Mr. Barry Massey of the Administrative Office of the Courts explains in Ms. Haywood’s article, the traditional view has been that an “actual vacancy” occurs when a justice submits his or her resignation to the governor, and this allows a replacement judge to be selected promptly so that disruption to the Supreme Court’s work is minimized.

Although no appellate court has construed what “actual vacancy” means, the traditional view is by far the better one. Dean Mathewson and the Judicial Nominating Commission acted properly here. Mr. Stein’s lawsuit should be swiftly dismissed.

(UPDATE, Nov. 17, 2015): Here is a copy of Mr. Stein’s complaint against Judge Nakamura. Nothing in it changes my opinion that it should be swiftly dismissed.

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Judge Judith Nakamura appointed to the New Mexico Supreme Court

According to this report by Blair Miller of kob.com, Governor Susana Martinez has appointed Judge Judith Nakamura of the Second Judicial District Court to fill the vacant seat on the New Mexico Supreme Court. Here is Governor Martinez’s official announcement.

This is a historic occasion — with this appointment by our state’s first female governor, a majority of the justices on our Supreme Court will be women for the very first time.

Congratulations to soon-to-be Justice Nakamura!

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NM Supreme Court strikes down law that provides free textbooks to private school students

Today the New Mexico Supreme Court issued its decision in Moses v. Skandera, holding that the Instructional Materials Law, under which the state loans secular textbooks to children attending private schools, violates Article XII, Section 3 of the New Mexico Constitution.

The opinion by Justice Chavez reverses the Court of Appeals’ opinion, which had upheld the statute.

I represented some private schools and private school students who intervened and argued that the statute should be upheld, so I won’t comment on the merits, but of course I’m disappointed with this result.

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10th Circuit: Magistrate in one district can’t authorize search in another

Federal agents suspected Zachary Krueger, who lived in Kansas, of distributing child pornography on the internet. They obtained a warrant from a magistrate judge in Kanasas for his home, but discovered that neither he nor his computer was at home. His roommate told the agents that Krueger was in Oklahoma City, and the Kansas agents contacted their Oklahoma counterparts and arranged to have the warrant executed there. Agents also obtained another warrant from the Kansas judge purporting to authorize the search in Oklahoma. Child pornography was found on the computer.

The district court suppressed the evidence on the ground that a magistrate judge in one district lacks authority to authorize a search in another district. The Tenth Circuit affirmed in United States v. Krueger, an opinion by Judge Ebel. In addition, Judge Gorsuch wrote an opinion concurring in the judgment, which you should not miss.

Ben Gould of Seattle’s Keller Rohrback firm has this post about the case at his blog, Appellate Briefs. This looks like another blog worth adding to your regular reading list. And a hat tip to Howard Bashman of How Appealing for pointing me to Mr. Gould’s post.

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NM Court of Appeals: Lender failed to establish standing to foreclose

Since our Supreme Court’s decision in Bank of New York v. Romero in 2014, New Mexico’s appellate courts have applied increased scrutiny to foreclosure lawsuits.

The latest example of this trend is last week’s decision by the Court of Appelas in BAC Home Loans Servicing LP v. Smith, holding (in an opinion by Judge Zamora) that a lender failed to establish it had standing at the time its foreclosure lawsuit was filed, because it failed to show it actually owned the note at that time.

The obvious takeaway here is that lenders filing foreclosure actions must be careful to ensure that all paperwork needed to establish standing is in order before such a lawsuit is filed.

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U.S. Supreme Court will hear Little Sisters of the Poor case

Today the Supreme Court of the United States agreed to hear the Little Sisters of the Poor’s challenge to the accommodation provision of the federal contraceptive mandate. The order list is here.

In July, a panel of the Tenth Circuit rejected the challenge in Little Sisters of the Poor v. Burwell, holding that the accommodation does not substantially burden the nuns’ religious beliefs. In September, five judges of the Tenth Circuit dissented from the Court’s refusal to rehear the case en banc in this opinion by Judge Harris Hartz.

The Little Sisters of the Poor run the Villa Guadalupe in Gallup, New Mexico, where they provide care for the elderly poor.

I have previously written about this case here and here.


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10th Circuit: Master limited partnership has citizenship of all its unitholders for diversity purposes

Earlier this week, the Tenth Circuit held that the citizenship of a master limited partnership for diversity jurisdiction purposes is that of all its unitholders, explaining that the Supreme Court’s decision in Carden v. Arkoma Associates, 494 U.S. 185 (1990) dictates that result.

The rules of complete diversity are technical and unforgiving. Make sure you understand how they work in any case involving newfangled partnerships and entities.

The opinion is Grynberg v. Kinder Morgan Energy Partners, L.P., written by Judge Matheson.

UPDATE (November 7, 2015): I came across this report that the ABA House of Delegates is urging Congress to amend the diversity statute so that unincorporated business entities would have the citizenship of their state of organization and the state where their principal place of business is located, like incorporated entities.

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“Justice Bosson ends 21 years on the bench”

I have been remiss in noting that Justice Bosson’s retirement took effect this past weekend. The Albuquerque Journal carried this story by Scott Sandlin marking the occasion and describing the highlights of Justice Bosson’s career.

As a book nerd, I am happy to learn of Justice Bosson’s “old-fashioned but fervent preference for books over online searches.” There is just no substitute for real books.

Thank you, Justice Bosson, for your service to the people of New Mexico, and best wishes for a happy retirement!

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Former Sheriff Thomas Rodella loses appeal in Tenth Circuit

Today the Tenth Circuit issued its decision in United States v. Thomas Rodella, affirming the convictions of the former Rio Arriba County (N.M.) sheriff arising from a road rage incident in which he threatened a young motorist with a firearm. Sheriff Rodella was convicted of violating the young man’s right to be free from unreasonable force and seizure, and for using a dangerous weapon while doing so, and was sentenced to just over 10 years in prison.

Judge Briscoe’s opinion rejects Rodella’s claims: (1) that the evidence was insufficient to support his conviction for violating the victim’s right to be free from unreasonable force and seizure; (2) that the jury should have been instructed that the victim suffered more than de minimis physical or emotional injury; (3) that the trial court improperly admitted evidence of other incidents in which Sheriff Rodella allegedly abused his power; (4) that the prosecutor committed misconduct by arguing that the other incidents were evidence of Rodella’s alleged propensity for violence; and (5) that the trial court improperly admitted evidence of Rodella’s training in the pursuit of a suspect’s vehicle.

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