Tenth Circuit rejects challenge to donor disclosure requirement in Colorado election law

The Independence Institute wanted to run a television ad right before the 2014 general election that criticized Colorado’s failure to audit its health insurance exchange, and which asked viewers to contact the governor (who was then up for re-election) to express their views.

The Institute was concerned that this ad might be considered an “electioneering communication” under Colorado law, which would require it to disclose the names of donors who gave money to support running the ad. It filed suit to challenge the disclosure requirement, arguing that because the ad did not urge viewers to vote for or against the governor, it was unrelated to a campaign, and the First Amendment prohibited Colorado from requiring it to disclose the names of donors who supported the ad.

Yesterday, in Independence Institute v. Williams, the Tenth Circuit rejected these claims. Chief Judge Tymkovich’s opinion explains that the Colorado law, as applied to the advertisement, satisfied the exacting scrutiny standard set forth in Citizens United. The disclosure requirement was supported by the interest in informing the public about who is financing ads that mention political candidates, and it was narrowly tailored to require disclosure only of donors who provided funds specifically earmarked to pay for the advertisement.

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NM Court of Appeals: Attorney-client arbitration contracts must be supported by informed consent

When Ray Castillo retained lawyers to represent him in his personal injury case, he signed a contract with them which provided that “[s]hould any dispute arise, Client and Attorney agree to submit their dispute to arbitration.” When Castillo later sued his lawyers for malpractice, the trial court ordered that the arbitration clause be enforced, despite a dispute of fact about whether the lawyers had explained the clause’s meaning and effect to Castillo.

In Castillo v. Arrieta, the Court of Appeals held (in a unanimous opinion written by Judge Linda Vanzi) that lawyers and clients may agree to arbitrate malpractice claims, but an arbitration clause will not be enforced unless the lawyer can prove that the client gave informed consent. This means that “[a]t a minimum the attorney should inform his client that arbitration will constitute a waiver of important rights, including, the right to a jury trial, potentially the right to broad discovery, and the right to an appeal on the merits.”

The Court explained that this conclusion flows from the lawyer’s fiduciary obligation to his or her client. In other words, unlike in arms-length relationships, a lawyer cannot simply ask a client to agree to arbitration without explaining the pros and cons.

In this case, the lawyers submitted affidavits saying that they explained the clause to Castillo, but Castillo signed an affidavit saying they hadn’t. The case is being remanded to resolve this factual dispute, but this serves as a reminder that if a lawyer wants to enforce an arbitration agreement with a client, it’s far better to explain the advantages and disadvantages of the agreement in writing, and advise the client, in writing, that he or she should seek independent legal advice about the agreement.

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Panel sends all three Court of Appeals applicants to Governor Martinez

My apologies for the lack of posting last week, but I was feeling a bit under the weather.

Last week the Judicial Nominating Commission sent the names of all three applicants for the presently vacant Court of Appeals–Stephen French, Julie Vargas, and Ned Fuller–to Governor Martinez.

For a good account of the interviews, read this report by Robert Nott in the Santa Fe New Mexican.

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Tenth Circuit “judges press Utah about polygamy ban in ‘Sister Wives’ case”

Donna Bryson of the Associated Press has this report on yesterday’s Tenth Circuit oral argument in Brown v. Buhman, where the State of Utah is challenging a district court’s ruling striking down parts of a state law banning polygamy. The case was brought by reality television personality Kody Brown and his four wives.

It will be interesting to see whether the courts will extend the rationale of Obergefell to hold that marriage is not limited to two persons. I’m not sure whether that precise question is presented by this case — the news report mentions that the plaintiffs are raising claims based on religious liberty and the right to privacy — but that question is bound to arise sooner or later.

Hat tip to How Appealing.

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“Editorial: Subjecting out-of-state M.D.s to NM law risky”

Yesterday the Albuquerque Journal ran this editorial about Montaño v. Frezza, which is pending in the New Mexico Supreme Court. The case involves a New Mexico plaintiff who allegedly suffered malpractice at the hands of a physician in Texas who worked at a state-owned hospital, and asks whether the physician should be able to rely on Texas’ sovereign immunity while being sued in New Mexico state court. I’ve previously written about this case here and here.

The editorial acknowledges that the plaintiff should be able to recover damages if the physician committed malpractice, but expresses the fear that allowing this lawsuit will encourage Texas medical providers to stop giving non-emergency care to New Mexico residents.

If you know of any other editorials or commentary on this case, please e-mail me, because I would be glad to link to them here.

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Three apply for vacant seat on NM Court of Appeals

Three lawyers have submitted applications to the Judicial Nominating Commission, seeking to fill the seat vacated by Judge Cynthia Fry at the end of 2015. Here they are in alphabetical order:

1. Stephen G. French is a an experienced and respected defense lawyer at French & Associates in Albuquerque, specializing in civil rights matters. He obtained his undergraduate degree at the University of New Mexico, and his J.D. at California Western School of Law (earlier I said that he graduated from United States International University — that was the product of some misinformation on the web; my apologies to Mr. French and to my readers!).

2. Ned Fuller is the former director of the Workers’ Compensation Administration, and was the Republican nominee for the Court of Appeals in 2010 (he lost to Robert Robles). You can still see his campaign spot on YouTube. Later, Governor Martinez appointed him to the district court bench in Albuquerque, but he was defeated in the election by Judge Victor Lopez. He obtained his undergraduate degree from Arizona State University, and his J.D. from Brigham Young University.

3. Julie Vargas is shareholder at the Hunt & Davis law firm in Albuquerque, and will be seeking the Democratic nomination for the seat, according to her campaign’s Facebook page. My understanding is that she has a background in commercial litigation and real estate matters. She has served on the New Mexico Disciplinary Board and the New Mexico Board of Bar Commissioners. Ms. Vargas obtained her undergraduate degree from Brown University, and her J.D. from the University of New Mexico.

The Judicial Nominating Commission will meet at 9:00 a.m. on Wednesday, January 27, 2016 at the Supreme Court Building in Santa Fe to consider the applications and interview the three applicants (you can see a list of members here). The meeting is open to the public. The Commission will then vote on which applicants to forward to Governor Martinez, who will then have 30 days to appoint one of them, or to ask that additional names be sent to her.

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Valerie Plame to speak at NM State Bar on January 19

Valerie Plame, the well-known former CIA officer and resident of Santa Fe, will be speaking on national security issues at the New Mexico State Bar Center in Albuquerque at noon on Tuesday, January 19, 2016.

This talk is sponsored by the Solo and Small Firm Section of the State Bar. Lunch will be provided to all those who RSVP in advance to Evann Kleinschmidt at ekleinschmidt@nmbar.org.


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10th Circuit rejects habeas claim in Ryder death penalty case

James Chandler Ryder believed that the apocalypse would occur on January 1, 2000, and planned to flee to the Yukon, where he believed he could survive that event. Daisy Hallum and her son, Sam, were storing supplies that Mr. Ryder had acquired in anticipation of the catastrophe, but they had a dispute with him and refused to return them. Upset that the Hallums were interfering with his chances of survival, Mr. Ryder killed them. As it turns out, the world did not end in 2000, and Mr. Ryder was eventually sentenced to death.

Yesterday the Tenth Circuit rejected Mr. Ryder’s claims that he was incompetent to stand trial; that Oklahoma’s procedures for assessing his competency were unconstitutional; that his trial counsel was ineffective for not fully investigating his mental health history; and that appellate counsel was ineffective.

The opinion is Ryder v. Warrior, by Judge McHugh.

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10th Circuit rules against officers who allegedly procured false confession from mentally disabled man

The Tenth Circuit has affirmed a trial court’s denial of qualified immunity to several Colorado police officers, who are being sued for allegedly using a confession they knew to be false to charge plaintiff Tyler Sanchez, a man with cognitive and developmental disabilities, with burglary and the sexual assault of an 8-year-old girl.

The Court held that Sanchez adequately pled the claim, because his complaint alleged that the officers knew that the victim’s description of her attacker was strikingly different from Sanchez; that Sanchez was unable to give them any details of the supposed crime; and that Sanchez had given details that the officers knew to be false.

The opinion is Sanchez v. Hartley, written by Judge Bacharach.

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“NM vs. Texas — Whose law wins?”

Scott Sandlin has this article in today’s Albuquerque Journal about the Montaño v. Frezza case pending before the New Mexico Supreme Court. I’ve previously written about this case here.

The plaintiff is a New Mexico resident who underwent gastric bypass surgery at Texas Tech University hospital in 2004. She later filed a lawsuit in New Mexico state court alleging that the surgeon, Dr. Eldo Frezza, committed malpractice. Dr. Frezza argued that the case should be dismissed because, as an employee of the State of Texas, he is entitled to sovereign immunity. Both the trial court and the Court of Appeals refused his request for dismissal, but allowed him the same “immunity” from liability that a qualified healthcare provider would enjoy under the New Mexico Medical Malpractice Act.

As Ms. Sandlin’s article notes, several amici have filed briefs in this case. Healthcare providers argue that affirming the decision will exacerbate the shortage of medical care available to New Mexicans in the eastern and southern parts of the state, because Texas medical providers may decline to provide non-emergency medical care.

Plaintiffs’ lawyers argue that these concerns are exaggerated. They also argue that many New Mexicans are required by their insurers to obtain care in Texas, and should not be deprived of a remedy should they receive substandard care.

This case could also be affected by another case pending in the Supreme Court of the United States this term. The reason that Texas government employees can be sued in New Mexico in the first place is due to the Supreme Court’s 1979 decision in Nevada v. Hall, which permits states to be sued in the courts of other states without their consent.

But last month the Supreme Court heard oral argument in Franchise Tax Board of California v. Hyatt, a case which asks whether Nevada v. Hall should be overruled. If that decision is overruled, it could upend the ability of New Mexicans to sue physicians who are employed by the State of Texas in our state courts.

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