Governor appoints Zachary Ives to the NM Court of Appeals

by Emil J. Kiehne Posted on February 1, 2019

According to this story in the Albuquerque Journal, Governor Lujan Grisham has appointed Albuquerque lawyer Zachary Ives to the vacant seat on the New Mexico Court of Appeals.

Mr. Ives received his law degree from UNM, and clerked for the late Justice Pamela Minzner on the New Mexico Supreme Court. He has extensive appellate experience in both state and federal courts, especially in the area of criminal defense. He’s earned a reputation as a super-smart lawyer and a good writer. You can check out his resume for more information (it’s on his law firm website, which may not be online much longer).

As with any other appointed judge in New Mexico, Judge Ives will have to run in a partisan race in the 2020 general election.

Congratulations, Judge Ives!

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Governor appoints Judges Shannon Bacon and David Thomson to the NM Supreme Court

by Emil J. Kiehne Posted on February 1, 2019

Last week, Governor Lujan Grisham appointed District Judges Shannon Bacon and David Thomson to fill the two vacant seats on the New Mexico Supreme Court.

Judge Bacon is on the Second Judicial District Court in Albuquerque. According to this story by Rick Nathanson in the Albuquerque Journal, she graduated from St. Pius X High School, and received her bachelor’s and law degrees from Creighton University in Omaha. She clerked for Judge A. Joseph Alarid on the Court of Appeals, and then worked in private practice before Governor Richardson appointed her to the district court. Her biography on the district court website reads as follows:

Judge C. Shannon Bacon was appointed to the Second Judicial District Court in 2010. Judge Bacon presides over a civil docket. Currently, Judge Bacon is the co-chair of the Second Judicial District’s pro bono committee, a Commissioner on the Access to Justice Commission, the Chair of the Supreme Court’s Rules of Evidence and serves on the Supreme Court Personnel Committee. She is also the President of the District and Metropolitan Court Judges Association. Outside of Court, Judge Bacon serves on a non-profit board that serves LBGTQ youth experiencing homelessness.

She has also been involved in efforts to reform the state’s troubled guardianship system. In addition, here is a video interview with Judge Bacon, recorded during her 2010 campaign to stay on the district court bench, in which she talks more about her personal and professional background.

Judge David Thomson was elected to the First Judicial District Court (which serves Santa Fe, Los Alamos, and Rio Arriba counties) in 2014. He attended Santa Fe High School, received his law degree from the University of Denver, and clerked for Judge Bruce Black on the federal district court in New Mexico. He then served as director of litigation and deputy attorney general under Attorneys General Patricia Madrid and Gary King. Here’s an interview that Judge Thomson gave in 2014 when he was running for the bench.

Both of the new justices will have to run to keep their seats in the 2020 general election, which will be a partisan race.

Congratulations to Justice Bacon and Justice Thomson!

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Congratulations to the new chief judge of the New Mexico Court of Appeals, M. Monica Zamora

by Emil J. Kiehne Posted on January 25, 2019

Earlier this week, Judge M. Monica Zamora was sworn in to begin serving a two-year term as Chief Judge of the New Mexico Court of Appeals. She replaces Judge Linda Vanzi, who served as Chief Judge from 2017 to 2019.

Chief Judge M. Monica Zamora

Chief Judge Zamora was elected to the Court of Appeals in 2012. To find out more about her background, you can this interview, which was conducted before the election.

Congratulations to Chief Judge Zamora!

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10th Circuit: Securities laws apply to fraud defendant’s sales to foreign customers

by Emil J. Kiehne Posted on January 25, 2019

The SEC brought a civil enforcement action against Charles Scoville, a resident of Utah, and his company, Traffic Monsoon, alleging that they ran a Ponzi scheme which raked in tens of millions of dollars. About 90% of his customers were located in relatively poor countries. The SEC obtained a TRO freezing the defendants’ assets and preventing them from continuing to operate the business.

Mr. Scoville argued that the federal securities laws did not reach his sales to customers outside the United States. The Tenth Circuit, in SEC v. Scoville (written by Judge Ebel) rejected this claim, and held that under the 2010 Dodd-Frank Act, Mr. Scoville’s conduct fell within the scope of the federal securities laws because he engaged in “significant conduct” within the United States to make the overseas sales. The court thus affirmed the district court’s preliminary orders.

Judge Briscoe filed a concurring opinion. In her view, the court did not need to address the extraterritorial application of the securities laws because defendants’ sales — even to foreign customers — also constituted sales within the United States.

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“Foreclosure case could change NM homeowner protections”

by Emil J. Kiehne Posted on January 24, 2019

This story by Ryan Laughlin of KOB News describes Nava v. Wells Fargo Bank, a case now before the New Mexico Supreme Court. Apparently, the story was prompted by the filing of petitioner’s brief earlier this week.

The Court of Appeals’ opinion that the Supreme Court will be reviewing is here. Full disclosure: I was on the panel that decided the case, so I’ll be interested to see how this goes.

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NMCA: Officer’s tap on car window was not a seizure

by Emil J. Kiehne Posted on January 23, 2019

Jennifer Simpson parked her car in a lot at a city park at 11:00 p.m. and turned off the car’s lights. A police officer saw this and believed her actions were suspicious because the park had closed an hour earlier (though the closing time was not posted). As the officer walked towards the car, Ms. Simpson turned on the car’s lights and began to drive away. The officer then reached out and tapped on the car window. Ms. Simpson stopped and rolled down her window. The officer smelled a strong odor of alcohol coming from the car, which ultimately led to a guilty plea to DWI (while reserving the right to appeal).

On appeal, Ms. Simpson argued that the officer seized her by tapping on her car window, that he lacked reasonable suspicion, and that the evidence that the officer gathered should therefore be suppressed.

In State v. Simpson, an opinion written by Judge Pro Tempore Daniel Gallegos (who is now a district judge on the Second Judicial District Court), rejected this claim, concluding that the initial encounter between Ms. Simpson and the officer was not a seizure, but was consensual.

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10th Circuit: REAL ID Act deprives courts of jurisdiction to consider untimely habeas petitions

by Emil J. Kiehne Posted on January 23, 2019

Lina Thoung came to the United States illegally in 2002, and fraudulently obtained citizenship here in 2007. In 2012, her fraud came to light, and she pleaded guilty and stipulated to a removal order, but could not then be deported to her native Cambodia.

Five years later, she filed a petition for writ of habeas corpus to challenge the removal order. Yesterday, in Thoung v. United States, an opinion by Chief Judge Tymkovich, the Tenth Circuit held that the REAL ID Act deprived the district and appellate courts or jurisdiction to consider her untimely-filed petition.

Judge Phillips dissented, arguing that removal was not authorized for the crime of which she was convicted in the first place.

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Ken Starr to speak in Albuquerque on January 23 (tomorrow)

by Emil J. Kiehne Posted on January 22, 2019

Ken Starr, a former judge on the D.C. Circuit who also served as solicitor general under the first President Bush, also known as the independent counsel who investigated President Bill Clinton, will be speaking at two events in Albuquerque tomorrow.

At noon, Judge Starr will be speaking about his new book, Contempt: A Memoir of the Clinton Investigation, at a luncheon at the Embassy Suites hotel in Albuquerque. The Rio Grande Foundation is sponsoring the talk, and you can register here. The cost is $55.

At 5:30 p.m., Judge Starr will be delivering the John Fields Simms, Sr. Memorial Lecture at UNM Law School. His lecture is entitled “Investigating the President, Now and Then: Living in a Constitutional Quagmire,” and has been approved for 1.0 hours of New Mexico CLE credit. Attendance at this lecture is free, but if you want to attend, you have to register here.

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10th Circuit: BLM not entitled to key to inspect well sites on private land

by Emil J. Kiehne Posted on January 22, 2019

In Maralex Resources, Inc. v. Barnhardt, the Tenth Circuit reversed a district court’s order that had granted the Bureau of Land Management (BLM) authority to require a private landowner to provide it with a key to access and inspect oil and gas wells. Although located on private land, the wells produced oil and gas that originated, in part, from tribal mineral interests as a result of a communitization agreement among several landowners.

BLM relied on a statute granting it authority to “inspect lease sites on Federal or Indian lands,” and argued that the statute was ambiguous because it did not address BLM’s authority to inspect wells on private land that are producing oil and gas from tribal mineral interests. BLM thus argued that the courts should defer to its interpretation of the statute.

In an opinion by Judge Mary Beck Briscoe, the Tenth Circuit held that the statute’s silence did not render it ambiguous, and that authority to require the landowner to provide BLM with a key could only be provided by statute. The Court thus reversed and directed judgment in the landowner’s favor.

This opinion is also interesting because it provides a rare instance of the Tenth Circuit exercising its discretion to review an arguably unpreserved claim. A federal appellate court has the discretion to do so, especially when (1) a purely legal claim is at issue; (2) when the parties had a full opportunity to brief the issue and develop the factual record; and (3) when the district court has either made factual findings or the facts are undisputed.

Of course, it’s far better to preserve a claim in the trial court (or agency) than to rely on the appellate court’s discretion to reach an unpreserved claim. But in the right case it can lead to appellate victory, as it did here.

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Chief Justice Nakamura delivers “state of the judiciary” address to the Legislature

by Emil J. Kiehne Posted on January 18, 2019

Yesterday, Chief Justice Judith Nakamura addressed a joint session of the Legislature to address the state of the New Mexico judiciary. You can read about it here and here.

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