Have lunch with Justice Chávez on September 25

The Appellate Practice Section and Young Lawyers Division of the State Bar will be hosting a brown bag lunch with Justice Edward Chávez of the New Mexico Supreme Court at noon on Friday, September 25, 2015, at the State Bar Center in Albuquerque.

Justice Chávez was an accomplished trial lawyer before joining the Supreme Court in 2003, and is known for his incisive questions at oral argument, and this lunch is certain to be interesting.

If you’d like to attend, please RSVP by e-mail to LVera@indiancountrylaw.com.

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NM Supreme Court rejects former judge’s argument that she wasn’t up for retention in 2014

After the voters declined to retain her in the 2014 general election, Judge Sheri Raphaelson of the First Judicial District Court took the position that she should not have been subjected to a retention election in the first place.

Judge Raphaelson took the bench in 2009 after being nominated to fill the seat vacated by now-Court of Appeals Judge Timothy Garcia. Judge Garcia’s term began in 2009 and would have expired at the end of 2014 had he remained on the district court.

The New Mexico Constitution provides that all appointed judges serve until the next general election, which is a partisan election. Thus, in 2010, Judge Raphaelson was on the ballot and survived a partisan election.

In Judge Raphaelson’s view, she should not have been up for retention until the 2016 election, because Article VI, Section 33 of the New Mexico Constitution provides that “each district judge shall be subject to retention or rejection in like manner at the general election every sixth year.”

Towards the end of last year, the New Mexico Supreme Court disagreed with her and removed her from office, but today the Court issued its opinion in State ex rel. King  v. Raphaelson to explain its reasoning.

According to Justice Bosson’s opinion, Article VI, Section 33 must be read in conjunction with Article VI, Section 35, which provides that “Any person appointed [to a judgeship] shall serve until the next general election. That person’s successor shall be chosen at such election and shall hold the office until the expiration of the original term.” (emphasis added).

The “original term” was Judge Garcia’s, so this meant that Judge Raphaelson was properly on the ballot in 2014. Moreover, the longstanding practice in New Mexico was contrary to Judge Raphaelson’s interpretation.

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10th Circuit affirms convictions in the NM Secretary of State scandal, but orders resentencing

Last month, as I reported here, the Tenth Circuit affirmed the tax evasion convictions of Elizabeth Kupfer, who was a participant in the scandal involving the New Mexico Secretary of State’s office, which broke in 2010.

Yesterday, it was her husband’s turn. A federal jury convicted Joseph Kupfer of tax evasion, and another jury convicted him of stealing and conspiracy to steal government property.

In an opinion by Judge Bacharach, the Tenth Circuit affirmed all of Mr. Kupfer’s convictions, but remanded for resentencing. See United States v. Joseph Kupfer.

Some of Mr. Kupfer’s arguments were the same as those his wife raised in her appeal, and the Court rejected them on the same grounds. Mr. Kupfer also claimed that evidence of transactions was improperly admitted because there was no allegation that he committed any misconduct in them, but the Court held that those events provided necessary context for the jury to understand Mr. Kupfer’s participation in the criminal acts.

The Court did agree with Mr. Kupfer’s challenge to his sentence. As with Mrs. Kupfer, the Court held that it was improper to increase the offense level for willfully obstructing the investigation, when all that Mr. Kupfer did was fail to tell the investigators about his own misconduct. In addition, the Tenth Circuit held that the district court applied the wrong offense guideline.

The case will be remanded for resentencing, and I presume Mr. Kupfer will receive a reduced sentence.

 

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NM Supreme Court upholds city’s rule barring its employees from seeking or holding elective office

Today the New Mexico Supreme Court issued its ruling in Kane v. City of Albuquerque, upholding provisions of the City Charter and the City Personnel Rules which prohibit city employees from seeking or holding elective office.

Emily Kane, a captain with the Albuquerque Fire Department, sought and received the Democratic Party’s nomination for a seat in the New Mexico House of Representatives in 2012, and ultimately won the seat. The City objected, and Kane then filed a lawsuit challenging the City’s prohibition on constitutional and statutory grounds. The District Court ruled in her favor. For more background on the case, see this story by Milan Simonich in the Santa Fe New Mexican.

Kane was defeated in the 2014 election by Republican Sarah Maestas Barnes, but the litigation proceeded to the Supreme Court after the Court of Appeals certified the case.

In an opinion by Justice Chavez, the Court rejected Kane’s argument that the City’s prohibition violates the First Amendment “because they regulate conflicts of interest, and are therefore rationally related to the legitimate government purpose of promoting administrative efficiency.” Justice Chavez also rejected her argument that the City’s prohibition violated the New Mexico Constitution by adding qualifications to those needed to seek elective office; the City’s rules only imposed conditions of employment. The Court also held that the City had statutory authority to enact the prohibition.

Justice Bosson filed a specially concurring opinion in which he agreed that the New Mexico Constitution does not prohibit the City’s rule, but questions whether the rule is consistent with the spirit of our state constitution’s creation of a citizen legislature, which envisioned that ordinary citizens from all walks of life would serve in the legislature, and which is not well-served by excluding an entire category of citizens from such service.

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Register now for the New Mexico Appellate Practice Institute

The 26th Annual New Mexico Appellate Practice Institute will be held on Friday, September 11, 2015 at the State Bar Center in Albuquerque.

The full agenda has now been released, and highlights include:

1.  A keynote address by Judge Jimmie Reyna of the Federal Circuit.

2.  A look at practice before the New Mexico Supreme Court, by Justice Richard Bosson and Joey Moya, Chief Clerk of the Supreme Court.

3.  A presentation on appeals from bench trials by Judge Linda Vanzi and appellate lawyer Alice Lorenz.

4. And an interesting-sounding presentation entitled “Remand Nightmares–Be Careful What You Ask For” by Judge Michael Bustamante and appellate lawyer Thomas Bird.

You can register for this highly-recommended CLE seminar here.

 

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New Mexico Court of Appeals rejects right to assisted suicide

Today, the New Mexico Court of Appeals issued its long-awaited decision in Morris v. Brandenburg, and has held that the New Mexico Constitution creates no right to assisted suicide.

This ruling is great news. The New Mexico Constitution says nothing whatever about assisted suicide, and whether or not to approve it is quintessentially a legislative matter. Substantively, the practice would threaten the elderly, the poor, and minorities, and would corrupt the medical profession.

Judge Garcia wrote the lead opinion for the Court, which states “We reverse the district court’s ruling that aid in dying [i.e. assisted suicide] is a fundamental liberty interest under the New Mexico Constitution.”

Judge Hanisee wrote an opinion concurring in part, and Judge Vanzi wrote a dissenting opinion.

Together, the opinions run to over 140 pages, so it will take awhile to digest this decision. Because I represent some amici curiae who argued in favor of reversal, I probably will not provide my own detailed analysis of the merits, because I anticipate continuing to participate in this case should the New Mexico Supreme Court decide to hear it.

You can read my previous posts about this case here and here.

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Tenth Circuit holds worker can’t convert early retirement pension to a disability pension

For those of you who like ERISA, yesterday the Tenth Circuit decided Martinez v. Plumbers & Pipefitters National Pension Plan, affirming a decision that an employee was not entitled to convert an early retirement pension to a disability pension.

Judge Tymkovich wrote the opinion for a unanimous panel.

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Tenth Circuit says woman’s statements may constitute “true threats” against abortion doctor

In United States v. Dillard, the Tenth Circuit has reversed the dismissal of a civil enforcement action under the Freedom of Access to Clinic Entrances Act, which prohibits (among other things) using threats of force to interfere with abortion clinics.

Angel Dillard, a Kansas anti-abortion activist, learned that Dr. Mila Means intended to perform abortions in Wichita (the previous abortion doctor in that city, Dr. George Tiller, was murdered in 2009). Ms. Dillard then wrote a letter to Dr. Means in which she warned of “consequences” that could follow from her decision and said “You will be checking under your car everyday–because maybe today is the day someone places an explosive under it.”

The government filed a civil enforcement lawsuit under the Act, and Ms. Dillard moved for summary judgment, arguing that the First Amendment protected her statements. Continue reading

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Judge Timothy Tymkovich to be new Chief Judge of the Tenth Circuit

This morning Chief Judge Mary Beck Briscoe announced that she will step down as chief judge of the Tenth Circuit, effective September 30, 2015, according to this news release on the Tenth Circuit’s website.

Judge Timothy Tymkovich will serve as the Tenth Circuit’s new chief judge.

I’m sure the entire legal community in the Tenth Circuit is grateful for Chief Judge Briscoe’s service. Congratulations to Judge Tymkovich!

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Little Sisters seek relief from SCOTUS, and an op-ed gets their claims wrong

The Little Sisters of the Poor have asked the Supreme Court of the United States for relief from the Tenth Circuit’s ruling earlier this month rejecting their challenge to the “accommodation” from HHS’ contraceptive mandate.

Paul Clement is counsel of record on their petition for writ of certiorari. (Hat tip to How Appealing).

Also, yesterday in the Albuquerque Journal carried this op-ed by Erin Armstrong, a lawyer for the ACLU of New Mexico, defending the Tenth Circuit’s ruling.

Unfortunately, Ms. Armstrong is mistaken about some of the issues presented by the case. For example, she says “[a]ll the law asks is that those organizations fill out a simple form stating their objection.” As I explained here, and as Mr. Clement explains much more eloquently in the petition, this is not “all the law asks.” Instead, the Little Sisters’ claim is  that even filling out the form involves them in cooperation with acts they believe to be immoral.

Ms. Armstrong also asserts that “[w]e all have the right to our religious beliefs, but that freedom does not entitle us to discriminate or decide what kind of health care others will or will not receive.” This statement is of no relevance to the case. The Little Sisters are not acting out of some kind of discriminatory animus against others, but instead seek to avoid participating in acts they consider to be immoral.

Also, they’re not attempting to “decide what kind of health care others” will get. Even if the Little Sisters prevail, their employees remain free to buy contraceptives, which are widely available in our society. And of course, if an employee wants to work for an employer that maintains an insurance plan that covers contraceptives, there are plenty of workplaces that do so. No one’s forcing anyone to work for the Little Sisters.

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