10th Circuit proposes changes to its local rules for 2020

The Tenth Circuit has released its proposed changes to its local rules for 2020, and has invited public feedback on them. The deadline to submit comments is October 25, 2019.

The principal proposed changes are as follows, and consist of minor improvements that will make life easier for the Court and lawyers:

  • Lawyers will now be required to include both the volume and page number for cites to the appendix. This will make it easier for the judges and their clerks to find your record cites. (Although not required by rule, you should also include the record proper volume number in briefs filed with New Mexico’s appellate courts; from experience I can tell you this makes it MUCH easier on the judges).
  • Lawyers will no longer be required to mail hard copies of briefs to the clerk’s office at the same time that they are filed electronically. Instead, the clerk’s office will review electronically-filed briefs for deficiencies, and if none are found, will send an email to the lawyer with a deadline to file hard copies. “The goal is to reduce and/or eliminate the need to submit hard copies more than once when deficiencies are identified in the briefs.”
  • The deadline to file motions to extend the time to file a brief will be shortened from five to three days before the briefing deadline.
  • The new local rules will require disclosure statements to be filed by organizational crime victims and bankruptcy debtors in addition to corporations, and will require supplemental disclosure statements to be filed when information changes.

If you practice in the Tenth Circuit, be sure to read all of them.

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The New Mexico Court of Appeals has changed the way it assigns panels and authorships

In an effort to overcome the present backlog of cases, the Court of Appeals has changed the way it is assigning cases to panels, at least for awhile.

In the past, the clerk’s office would assign each judge nine cases on the first of each month. In three of those cases, the judge would be designated as the author, and in the remaining six, he or she would be a panel member (known as a “participant”). But the panels were entirely different. For example, when I was on the Court, on Opinion No. 1, I would be the assigned author, and Judges Hanisee and Vargas would be the participants. On Opinion No. 2, I would be the assigned author, but the participants would be entirely different. And so forth. Of course, there’s always one judge assigned to be the “calendaring” judge, who does not receive the normal caseload.

Beginning on September 1, 2019, however, the Court has started a Division Pilot Project. Under the new system, nine of the judges will be assigned to serve with the same panel for four months. Authorships will no longer be randomly assigned. Instead, the clerk’s office will assign a number of cases to the panel, and the panel will then meet to discuss the cases and divide the work amongst themselves. One of the judges will still be the calendaring judge.

An interesting feature of the system is that the panel assignments will not be entirely random. Instead, each panel will have a presiding judge, who will be one of the four most senior judges (i.e. Chief Judge Zamora, Judge Vanzi, Judge Hanisee and Judge Vargas). In other words, it will be rare for two of the more senior judges to serve on the same panel.

The Court is working very hard, and trying out now ways of processing cases, to overcome the backlog. Only time will tell if this experiment will work.

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NMCA: Albuquerque police are immune from claims that they botched an investigation of the death of prominent lawyer Mary Han

Mary Han was a prominent civil rights lawyer in Albuquerque whose untimely death has attracted both attention and litigation. In this lawsuit, Ms. Han’s daughter, and the personal representative of her estate, sued the City of Albuquerque and some of its police officials. They claimed that the defendants’ alleged failure to properly secure the scene of her death (she was found in a car in her garage) made it impossible to truly determine what (or possibly who) caused her death. They also claimed that this failure allowed some unknown person to make off with some valuable rings that Ms. Han often wore.

The district court dismissed the lawsuit on the ground that these claims did not fall within the Tort Claims Act’s waiver of immunity for “property damage” resulting from a number of listed torts. See NMSA 1978, Sec. 41-4-12. The district court concluded that “property damage” required physical damage to property, and neither the alleged spoliation of evidence nor the disappearance of Ms. Han’s rings qualified.

In Han-Noggle v. City of Albuquerque, a non-precedential opinion (written by Chief Judge Monica Zamora), the Court of Appeals affirmed the dismissal. But instead of relying on the district court’s “physical damage” analysis, the Court relied on the complaint’s failure to allege sufficient facts explaining what claim they would have been able to pursue had the investigation been conducted properly, and failure to allege any facts suggesting that the police investigation was responsible for the rings’ disappearance.

It would not surprise me if plaintiffs were to seek review in the New Mexico Supreme Court.

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NMCA: Underground water rights may be partially forfeited

A landowner contended that he owned 394.85 acre-feet of underground water rights in the now-abandoned town of Cutter, New Mexico. The evidence at trial showed that a railroad had previously used the water, but that for 34 years the water was not used for anything other than livestock use. A special master found, and the district court agreed, that all non-livestock water rights had been forfeited under NMSA 1978, Section 72-12-8(A). That statute provides that a water right owner who makes no beneficial use of the water right for four years forfeits that right. The landowner appealed, apparently arguing that the underground water right could not be partially forfeited.

In State of N.M. v. Office of the State Engineer (opinion by Judge Julie Vargas), the Court of Appeals held that Section 72-12-8(A) allows the partial forfeiture of underground water rights. The Court first noted that statutes governing surface water rights explicitly provide for the partial forfeiture of those rights. Although Section 72-12-8(A) does not include a reference to partial forfeiture, the Court relied on background principles of water law — e.g. that one does not have a right to water in excess of actual use — in holding that the statute does allow for partial forfeiture. The Court then held that substantial evidence supported the special master’s findings that there had been a partial forfeiture.

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NMCA: Fundamental error to instruct jury on element of crime that has been repealed

In this case, the defendant, Marcos Figueroa, was charged with criminal sexual penetration of a minor for abusing his son and stepson. At trial, the district court granted the State’s request that the jury be instructed that the defendant had used his “position of authority” over the victims to coerce them to submit to the acts. The instruction was taken from Uniform Jury Instruction 14-945, although the Use Note for that UJI states that it is only to be used for crimes that occurred before the amendment. The defendant’s trial counsel did not object.

But as the Court of Appeals held in State v. Figueroa (opinion by Judge Zachary Ives), the Legislature deleted the “position of authority” language from the relevant statute before the dates on which the defendant committed the offenses. Therefore, it was fundamental error to allow the convictions to stand, and a new trial was ordered.

This case serves as a good reminder that in New Mexico state-court cases, it is not sufficient to look for a Uniform Jury Instruction with language that fits your case. Nor should you simply agree to an opponent’s proposed jury instruction just because it is taken from the UJI. Instead, one should carefully read the Use Notes and commentary for guidance on whether the instruction is actually proper.

It’s also a good idea to read the case law on the topic of the instruction. Despite the best efforts of the committees that work on the UJIs, sometimes appellate decisions or legislative action will change the law, but those changes may not be reflected at all, or reflected accurately, in the UJIs. In those situations, of course, the case law or statutes control.

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10th Circuit denies habeas relief in high-profile 1984 Utah murder case

Today, in Lafferty v. Benson, the Tenth Circuit (in an order signed by Judge Briscoe) denied a certificate of appealability in the high-profile murder case of Ron Lafferty, who was convicted of murdering his sister-in-law, Brenda Lafferty, and her fifteen-month-old daughter, Erica. He was sentenced to death.

The case is receiving media attention. You can read more about it in this story by Nate Carlson in the Salt Lake Tribune, which notes that as a result of this decision, Lafferty may face a firing squad within months.

Lafferty’s crimes were featured in Jon Krakauer’s 2004 book, Under the Banner of Heaven. Lafferty blamed Brenda for his divorce and was also resentful over his excommunication from the Latter-Day Saints church. Lafferty and some of his brothers formed a group called the “School of the Prophets,” who claimed to receive revelations from God. In 1984, he claimed to receive a revelation that several people, including Brenda and Erica, were to be “removed.” He and his brother, Dan, then murdered Brenda and Erica in July 1984.

In an earlier proceeding, Lafferty was granted habeas relief, but was sentenced to death again at his new trial in 1996. Today, the Tenth Circuit rejected several claims raised by Lafferty — i.e. that the Utah state court lacked jurisdiction to retry him in 1996, that his retrial violated double jeopardy, that he received ineffective assistance at sentencing, and that the state trial court erred in finding him competent to stand trial.

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10th Circuit: Sentence of imprisonment is final judgment although restitution issues remain open

Michelle Paup was convicted in a jury trial in federal magistrate court of theft of government property of less than $1,000 for shoplifting at an exchange store on an air force base in Colorado. She appealed to the district court, which upheld her conviction but vacated the restitution award and remanded for further proceedings. She then appealed her conviction and sentence.

In United States v. Paup (opinion by Judge Harris Hartz), the Tenth Circuit joined a number of other circuits in holding that a sentence of imprisonment is final and appealable even where restitution issues remain unresolved. Requiring that restitution issues be set before appeal “would frustrate a defendant’s need to promptly challenge her conviction or sentence of imprisonment.”

The Court also upheld the magistrate court’s exclusion of defendant’s expert witness, who was apparently going to testify that defendant had mental health problems that precluded her from having the required mens rea to commit shoplifting. Defense counsel at trial offered a number of insufficient excuses — such as a supposed inability to use PACER — for the late disclosure, which the magistrate court properly rejected.

Finally, the Court upheld a two-level enhancement of the defendant’s offense level for perjury. Ms. Paup testified at trial, and offered a number of patently implausible excuses for her conduct. For example, she hid two Coach bags in her purse and then claimed that she put them beneath her purse “so that [she could] keep track of [them],” and then later claimed that she had bought them at another store.

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NMCA: Reversing conviction of middle school student who said he was making a “kill list”

A 14-year-old student at Capitan Middle School told another student he was making a “kill list.” Then, when the school’s principal asked whether he had a “hit list,” the student corrected her and said it was a “kill list.” The student was ultimately convicted of violating NMSA 1978, Section 30-20-13(D), which criminalizes willful interference with the educational process. You can read more about the arrest and charges in this story by Dianne Stallings in the Ruidoso News.

In State v. Quintin C. (opinion by Judge Megan Duffy), the Court of Appeals reversed the conviction because the district court improperly applied a general-intent mens rea to reach its decision. The Court held that Section 30-20-13(D) is actually a specific-intent crime, and that the conviction had to be reversed.

The Court then held that there was sufficient evidence to convict the student under the specific-intent standard (if there had not been, then double jeopardy would’ve barred a retrial), and remanded for a new trial using the proper standard.

This is the first New Mexico appellate decision to interpret Section 30-20-13(D). Federal courts have applied the statute before, most notably in A.M. v. Holmes, where a student was arrested under the statute for fake-burping in class. Then-judge Neil Gorsuch’s dissent in that case attracted some attention at his SCOTUS confirmation hearing.

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Justices Bacon and Thomson kick off their election campaigns next week

In New Mexico, judges who are appointed to fill a vacancy must run to keep their seats in the next general election. These judicial races are partisan ones. If you are appointed and don’t win, you will be back in private practice (just like me).

Thus, Justice Shannon Bacon and Justice David Thomson, who were appointed to the Supreme Court by Governor Lujan Grisham earlier this year, must run in the November 2020 general election.

Their first campaign event (as far as I’m aware) will be next Thursday evening in Santa Fe at the law firm of Brian Egolf, Speaker of the New Mexico House of Representatives.

Justice Bacon and Justice Thomson have also set up their campaign websites here and here. Their websites make clear that each of them will be seeking public financing for their elections.

I do not know of anyone who has declared an intent to run against them, but there’s still plenty of time for that. It’s possible that they could face primary challenges from fellow Democrats, or a challenge in the general election from Republicans or Libertarians, or both. But when I do hear news, I’ll post it here.

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NMSC: Public Regulation Commission’s approval of PNM’s 2018 renewable energy procurement plan affirmed

Today the New Mexico Supreme Court issued its unanimous opinion in New Mexico Industrial Energy Consumers v. New Mexico Public Regulation Commission (opinion by Justice Shannon Bacon).

The issue in the case is whether the Public Service Company of New Mexico (PNM), in asking for bids on a solar power project, unfairly favored turnkey bidders over purchased-power-agreement (PPA) bidders by requiring only the latter “to determine transmission and interconnection costs for their bids,” while using predetermined information for the turnkey bidders. The PPA bidders argued that, in combination with the 30-day deadline for submitting bids, they were disadvantaged because it can take significantly longer than 30 days to gather the required cost information.

Justice Bacon’s opinion held that the evidence in the record supported the PRC’s decision that PNM’s request for proposal was fair. The opinion notes that there was evidence that renewable energy developers often can provide cost information quickly, and that the appellants could have, but did not, request an extension of the 30-day deadline.

If you’re interested in this case, you can also listen to the oral argument, which was held on May 7, 2019, and read this article about the background of the case by Leah Cantor in the Santa Fe Reporter.

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