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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NM Supreme Court hears case on aerial search with implications for drones

by Emil J. Kiehne Posted on January 16, 2015

The New Mexico Supreme Court held oral argument earlier this week in the case of State v. Norman Davis, which asks whether aerial surveillance by police constitutes a search requiring a warrant.

The Las Cruces-Sun News has published this account of the oral argument, by Russell Contreras.

This case began in 2006, when police in a helicopter spotted marijuana plants in a greenhouse owned by Norman Davis in Taos County. In January 2014, the Court of Appeals issued an opinion holding that under the New Mexico Constitution, aerial surveillance constitutes a search that requires a warrant or an exception to the warrant requirement.

I’ve previously written about this case here, here, and here. Here are links to the briefs, which were posted by the Electronic Privacy Information Center:

1.  Attorney General’s Brief-in-Chief.

2.  Defendant Norman Davis’ Answer Brief.

3.  Amicus Curiae Brief filed by the Electronic Privacy Information Center.

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Can the Governor reappoint a judge who lost his retention election?

by Emil J. Kiehne Posted on January 15, 2015

Tomorrow at 2:30 p.m., the New Mexico Supreme Court will hear argument on a petition to nullify Governor Martinez’s reappointment of Judge Albert Mitchell of the Tenth Judicial District Court, according to this report by Steven Hansen of the Clovis News Journal.

Judge Mitchell failed to obtain sufficient votes in the November 4 election to be retained in office. But he immediately applied to the Judicial Nominating Commission to fill the post, which recommended him and a former judge, Don Schutte, to Governor Martinez.

I haven’t seen the briefs, but presumably the Supreme Court will be asked to decide whether it was proper for the Judicial Nominating Commission, and Governor Martinez to appoint, a candidate who was just rejected by the voters.

 

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My top 10 most popular posts in 2014

by Emil J. Kiehne Posted on January 15, 2015

Here are the top ten most-read posts from the New Mexico Appellate Law Blog in 2014. Thanks again to all the readers of this blog!

1.  New Mexico Supreme Court adopts reciprocity in bar admissions.

Reciprocity is set to go into effect on June 1, 2015, and has the potential to significantly change the practice of law in New Mexico.

2.  Should the word limit for federal appellate briefs be decreased?

Yes.

3.  Justice Ruth Bader Ginsburg to speak in Santa Fe on August 15.

Notorious RBG is a big fan of New Mexico!

4.  New Mexico Supreme Court establishes new standard for peremptory excusals of judges.

If you have multiple parties on one side of a case, read this post before you try to excuse a judge.

5.  It’s time for reciprocity in New Mexico.

Fortunately, our Supreme Court agreed (see above).

6.  “A Bit of the Wild West Survives in New Mexico”

This 2012 post about New Mexico’s “fence-out” laws is still going strong.

7.  Interview with Justice Paul Kennedy, Republican nominee for the NM Supreme Court

Another still-popular post from 2012 about one of the best lawyers in the State.

8.  Is “independent intervening cause” alive in New Mexico?

Yes, for now, but be careful about relying on it.

9.  Motion to compel arbitration is not a Get-Out-Of-Discovery-Free card, says NM Court of Appeals.

Discovery, that trouble-maker.

10.  NM Court of Appeals holds that workers’ compensation covers medical marijuana.

Another step on the road to legalization.

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Electronic Privacy Information Center files amicus brief asking NM Supreme Court to limit aerial surveillance

by Emil J. Kiehne Posted on December 12, 2014

Earlier this year I wrote about the Court of Appeals’ decision in State v. Davis, which held that under the New Mexico Constitution, aerial surveillance by police constitutes a search requiring a warrant, or an exception to the warrant requirement.

The case arises from the 2006 arrest of Norman Davis, a man in his 70s who was growing marijuana in his greenhouse. A police helicopter flying overhead spotted the plants, and heavily armed law enforcement officers carrying A-15 semi-automatic weapons confronted Mr. Davis and asked for permission to search the premises, while the helicopter hovered overhead. Mr. Davis “consented” to the search, and police seized the plants.

The New Mexico Supreme Court granted certiorari to hear the case. Earlier this week, the Electronic Privacy Information Center, a preeminent defender of privacy rights, filed this interesting amicus curiae brief in support of Mr. Davis, arguing that the proliferation of aerial surveillance technology (especially in the form of drones) poses a threat to privacy and property interests.

If anyone has access to the briefs filed by the Attorney General or Mr. Davis, I will gladly post them too.

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NM Supreme Court lifts stay, allows recount to continue in Land Commissioner’s race

by Emil J. Kiehne Posted on December 12, 2014

On Wednesday, the New Mexico Supreme Court denied a petition by the incumbent Commissioner of Public Lands, Ray Powell, challenging the procedures being used to recount the votes in that closely-contested race.

The Supreme Court also lifted a stay it had imposed, and the recount has now resumed. According to this report by Deborah Baker in the Albuquerque Journal, results are expected next week.

The Republican challenger, Aubrey Dunn, presently holds a slim, 700-vote lead over Powell.

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