Interview with Kerry Kiernan, candidate for NM Court of Appeals

Kerry Kiernan (Photo by Mark Holm © 2014)
Kerry Kiernan (Photo by Mark Holm © 2014)

Earlier this week I spoke with Kerry Kiernan, an appellate lawyer with the Sutin, Thayer & Browne law firm in Albuquerque. He is the Democratic Party’s nominee for the New Mexico Court of Appeals. His campaign website is here, and his campaign Facebook page is here.

Q. I’m here with Kerry Kiernan to talk with him about his campaign for the New Mexico Court of Appeals. Thanks for talking with me today.

A.  Thanks for having me.

Q.  Tell us about your family and background before going to law school.

A.  I spent the first 14 years of my life in New York. My dad was a police officer, and was the director of recruit training for the New York police. My parents decided to retire out here because of my mom’s health problems, and so when I was 14 we moved to Albuquerque. They had been out here previously and liked it, so we moved here, and I had two older brothers who did not move with us. I went to Cleveland junior high school, Sandia High School, and then the University of New Mexico for both undergraduate and law school. So I came here in 1968 and have been here ever since.

Q.  Why did you decide to attend law school, and where did you go?

A.  I went to UNM, and I wanted to go to law school because I had studied public administration, had studied political science and history in undergraduate school, and it seemed like the logical thing to do would be to go to law school because I liked the process of law, I enjoyed constitutional law. And also there was an employability issue. It seemed to be more likely that I would have a job as a lawyer than I would as a college teacher. So I picked law school. Continue reading

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Tenth Circuit to hold oral arguments in Albuquerque on November 13

Valles Caldera by Emil Kiehne, Copyright 2013
Valles Caldera by Emil Kiehne, Copyright 2013

On Thursday, November 13, the Tenth Circuit will hold oral arguments in a number of cases at the University of New Mexico School of Law in Albuquerque, according to this announcement.

The headliner is Pueblo of Jemez v. United States, a lawsuit in which the Pueblo is attempting to regain ownership of the Valles Caldera in northern New Mexico. If you have any interest in Native American law, this is an argument you won’t want to miss.

Last year, the federal district court in New Mexico dismissed the Pueblo’s lawsuit. I previously wrote about the case here and here, and my colleague Sarah Stevenson has written about the case in more detail at my firm’s Native American Law Watch. If you are interested in reading the briefs, the indispensable Turtle Talk blog has them here.

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“Ringside Seat: In a clean race, it’s a shame someone has to lose”

Milan Simonich has this article in the Santa Fe New Mexican about the race for the New Mexico Court of Appeals seat between incumbent Judge Miles Hanisee, the Republican candidate, and his Democratic challenger, appellate lawyer Kerry Kiernan.

The article notes that when Judge Hanisee was a lawyer in private practice, he represented former Democratic state senator Manny Aragon in a corruption case.

I agree with Mr. Simonich that Kerry Kiernan is to be commended for not turning Judge Hanisee’s representation of a controversial figure into a campaign issue. And Judge Hanisee is to be commended for taking on that representation.

When lawyers represent people who are accused of crimes, or are otherwise unpopular or controversial, they are not endorsing the client’s views, goals, or actions. Instead, they are defending the client’s legal rights. It would be much more difficult for our legal system to function if lawyers were not willing to do so. The fact that a lawyer is willing to take on controversial representations makes him or her more, not less, qualified to hold judicial office.

The winners here are New Mexico’s voters, who have a win-win choice in this particular election.


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Several New Mexico newspapers endorse Judge Hanisee for Court of Appeals

Several New Mexico newspapers have endorsed incumbent (and Republican candidate) Judge Miles Hanisee for the New Mexico Court of Appeals:

1.  The Santa Fe New Mexican’s is here.

2. The Las Cruces Sun-Times’ is here.

3. The Albuquerque Journal’s is here.

Judge Hanisee is being challenged by the Democratic candidate, long-time Albuquerque appellate lawyer Kerry Kiernan.

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What does the denial of the same-sex marriage petitions mean for New Mexico?

Yesterday the legal world was surprised by the Supreme Court’s denial of all seven petitions for certiorari challenging lower court decisions allowing same-sex marriage. SCOTUSblog has this roundup of news coverage and commentary on the denials.

So what does this mean for New Mexico? The answer is “not much.” Last year, when the New Mexico Supreme Court ruled in favor of same-sex marriage in Griego v. Oliver, its decision was based entirely on the Equal Protection Clause of the New Mexico Constitution, as I explained here.

State constitutions can provide greater rights and liberties than the United States Constitution. Thus, if SCOTUS takes up same-sex marriage in the future, and in the unlikely event that the Court decides that states do not have to allow it, that would have no effect on same-sex marriage in New Mexico.

By basing their challenge solely on the state constitution, New Mexico’s same-sex marriage advocates ensured that our state Supreme Court’s marriage decision would be immune to review by the Supreme Court of the United States. The only way to change the status of same-sex marriage here would be to amend the New Mexico Constitution.

I think the lesson here is to keep the New Mexico Constitution in mind when deciding what claims and defenses to assert, even in “ordinary” civil litigation. In the right case it can be a powerful tool with which to accomplish your client’s goals.

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Are there any New Mexico judges on Twitter?

Last week Jesse Wegman had this article in the New York Times about Texas Supreme Court Justice Don Willett, and his famous and funny Twitter feed, which you can (and should) follow.

I do not know of any New Mexico judges on Twitter, but if you are aware of any, please leave a comment or drop me a line.

If there aren’t any, then I hope some of our judges will consider joining Twitter and sharing their insights, experience, and photos of beautiful New Mexico sunsets (while, of course, avoiding any mention of pending cases).

Justice Willett shows that judges can tweet successfully. And if a Texas judge can do it, then it stands to reason that our New Mexico judges will be even better at it!

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Read the latest issue of “Appellate Issues,” from the ABA’s Council of Appellate Lawyers

Don’t say I never did anything for you. This is a Friday, and you need something to do over the weekend, right?

Well, I’ve got you covered. The ABA’s Council of Appellate Lawyers has published the Summer 2014 issue of “Appellate Issues,” which features a number of articles about amicus curiae practice.

Print it out and take it home with you. Then, pour out a glass of your favorite libation, curl up on the couch, and enjoy. (Of course, you’ll want to finish reading before 5:30 p.m. tomorrow, when Notre Dame takes on Purdue. Go Irish!).

Hat tip to Howard Bashman of How Appealing.

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DWI lawyer Ron Bell prevails on appeal in his own DWI case

Ron BellVirtually everyone in Albuquerque has seen Ron Bell’s billboards and television commercials proclaiming his willingness to sue malefactors of all sorts; many of these include his catchphrase “I sue drunk drivers!”

So some people experienced a fair amount of schadenfreude when Mr. Bell was arrested for alleged driving while impaired in Albuquerque in 2010.

But it is Mr. Bell who appears to be having the last laugh. The Court of Appeals, in an opinion by Judge Hanisee, has held that the District Court properly suppressed evidence  that was used to convict him in Metropolitan Court. See State v. Ron Bell (Sept. 9, 2014).

As the Court explains, the Supreme Court has interpreted the state constitution as providing greater protection to citizens during traffic stops than does the Fourth Amendment. Under New Mexico law, all questions asked during a traffic stop must be either related to the reason for the stop, or otherwise supported by reasonable suspicion.

The police officer who stopped Mr. Bell did so because he observed him, among other things, speeding and driving partially in the shoulder. The officer asked Mr. Bell if he was “under the influence,” which seems to have been proper, but then bizarrely asked him if he had any grenades, rocket launchers, or dead bodies. Mr. Bell answered “no” while shaking his head. This was a constitutional violation because the officer had no reason whatsoever to think Mr. Bell had any of these things in his car. Continue reading

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“It is enough to present a defense; harping on it is not required.”

I thought you might enjoy this quote from Judge Frank Easterbrook’s opinion in Jentz v. ConAgra Foods, Inc. (7th Cir., Sept. 9, 2014), at page 6.

Judge Easterbrook was responding to an appellee who argued that the defendant did not “feature” a particular defense at trial. Although it may not have played a significant role at trial, that defense ended up winning the day on appeal.

This quote is a reminder to every appellant’s counsel to carefully examine the record to discover what issues can be raised on appeal. The winning issue may not be the one that made the greatest splash at trial.

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NM Court of Appeals: State may prosecute identity theft occurring entirely in other states, where victim is in New Mexico

Christopher Allen was convicted of stealing the identity of a New Mexico resident, and using it to obtain an Arizona driver’s license, to rent cars in Arizona, Nevada, and Georgia, and provided the stolen identity as his own when he was arrested in Georgia. None of his acts were committed in New Mexico.

In an interesting discussion of the territorial limits of a state’s criminal jurisdiction, the New Mexico Court of Appeals held on Monday that New Mexico does have jurisdiction over the defendant because the effects of his crimes were felt here (this is called the “detrimental effects” theory of jurisdiction). The Court also held that New Mexico does not have to enact a statute specifically authorizing the State to exercise this jurisdiction.

The opinion is State v. Allen, a unanimous decision written by Judge Michael Vigil. It also contains a useful discussion of the difference between jurisdiction and venue.

So if any out-of-staters are thinking of committing crimes against a New Mexican, think again, because you can run, but you can’t hide.

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