NM Supreme Court issues opinion explaining its suspension of attorney Eric Dixon

In November 2018, the New Mexico Supreme Court suspended prominent Portales lawyer Eric Dixon from the practice of law for at least nine months.

Yesterday, the Court issued a unanimous opinion explaining its decision. The Court stated that Mr. Dixon made false statements to a state district court and breached his duty of competence in representing a client. An aggravating circumstance was that Mr. Dixon had previously been censured for driving his car at a state district court judge.

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I’m back!

I’m happy to announce that my law blog is back in business. I took the blog offline after being sworn in as a judge on the New Mexico Court of Appeals in October 2017. I campaigned to keep my seat, but was washed away in the Blue Tsunami of 2018. My term in office expired at the end of December 2018.

Although it was a great experience to put on these robes, I’m now back in private practice!

It was a great experience to work on an appellate court, and to meet hundreds of people all over our great state while on the campaign.

I’ve now rejoined the Modrall Sperling law firm as a shareholder, and plan to continue my appellate practice. A happy result of the election is that I can now restart this website.

I look forward to discussing events in New Mexico’s appellate courts, and in the Tenth Circuit, with you!

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RIP: Former New Mexico Supreme Court Justice Dan Sisk

I regret to report that former Justice Daniel A. Sisk, who served on the New Mexico Supreme Court in 1970, has passed away.

Mr. Sisk was also a “name” partner at my law firm. Unfortunately, I never had the opportunity to practice with him, but many of my colleagues did, and they say that he was the “consummate gentleman lawyer.”

My condolences to Justice Sisk’s family.

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E-filing starts at the New Mexico Court of Appeals on August 21!

The long-awaited day is finally at hand! On Monday, August 21, e-filing begins at the New Mexico Court of Appeals. It may be a coincidence that this is the date of the total solar eclipse, but then again, it may not be…

You can (and should) read all about e-filing here.

It looks like e-filing will be mandatory right away, except for pro se litigants. When e-filing started at our Supreme Court earlier this year, there was a grace period of a couple of months, in which one could file documents via e-filing or in person. But since the Court of Appeals has waited so long for e-filing, it is jumping into the deep end right away.

Also, if you have cases pending at the Court, you should add yourself to the service list for those cases so that you will receive notice of any filings.

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NMCA: Corpus delicti rule satisfied by circumstantial evidence

The Court of Appeals, in State v. Platero, has overturned a trial court order dismissing a vehicular homicide charge before trial because the State did not plan to offer any expert testimony that the rollover car crash at issue killed the victim. No one (except the defendant) witnessed the accident, and the victim was found some distance away from the vehicle. The defendant claimed that he had not been driving the vehicle.

The corpus delicti rule “reflects the simple principle that a crime must be proved to have occurred before anyone can be convicted for having committed it.” Black’s Law Dictionary (10th ed. 2014).

Judge Timothy Garcia’s opinion explains that a pretrial motion is not usually a proper method of testing the factual sufficiency of the State’s evidence before trial, and expert testimony is not necessarily required. Here, there was circumstantial evidence that the defendant was driving (his blood was found on the driver’s side of the vehicle) and that the crash killed the victim (she was found with visible signs of trauma a short distance from the vehicle).

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Register now for the 2017 New Mexico Appellate Practice Institute

Registration is now open for this year’s New Mexico Appellate Practice Institute, the annual all-day CLE program sponsored by the Appellate Practice Section. The seminar will take place on Friday, September 15, at the State Bar Center in Albuquerque.

Until August 15, you can register (at this link) for the early-bird rate of $239. After that, the price goes up. I’m not sure how high … but do you really want to find out?

As usual, this year’s program is excellent:

  • Our keynote speaker is Judge James Graves of the U.S. Court of Appeals for the Fifth Circuit.
  • A distinguished panel will show you how to make use of extraordinary writs in your practice.
  • As usual, we will have updates on recent appellate developments in caselaw, and hear from the clerks of our Court of Appeals and Supreme Court.
  • And finally, legendary appellate mediator Robert Rambo will talk about ethical issues on appeal.

I hope to see you there!

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Save the date for the 2017 New Mexico Appellate Practice Institute

This year’s entire day of appellate goodness and CLE credits will take place on Friday, September 15 at the State Bar Center in Albuquerque.

We are thrilled to have, as our keynote speaker, the Honorable James E. Graves, Jr. of the U.S. Court of Appeals for the Fifth Circuit. Judge Graves served as a justice of the Mississippi Supreme Court before President Obama appointed him to the Fifth Circuit.

The rest of the program will be released soon, and I’ll post again when registration opens. I hope to see you there!

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NMSC: Tort Claims Act waives sovereign immunity for loss of consortium claims

Today the New Mexico Supreme Court issued its decision in Thompson v. City of Albuquerque, holding that the Tort Claims Act waives the state government’s sovereign immunity for loss of consortium claims. The case was brought by the minor children of a man who was shot and killed by Albuquerque police.

Justice Chávez’s opinion for the unanimous court also holds that the children may assert their loss of consortium claim although their father’s estate did not file a wrongful death claim.

The Supreme Court’s decision affirms last year’s Court of Appeals decision in this case, which reached the same conclusion.

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Judge Jim Wechsler to retire from NM Court of Appeals

After more than 22 years of service on the New Mexico Court of Appeals, Judge Jim Wechsler has announced that he will be retiring on July 31, 2017, according to this story by Phaedra Haywood in the Santa Fe New Mexican. Ms. Haywood’s story says that Judge Wechsler’s tenure is the second-longest of any appellate judge in New Mexico history.

As one of the most respected and hard-working judges in the state, Judge Wechsler certainly deserves his retirement, but this is a real loss to the people of New Mexico. Judge Wechsler’s opinions are full of both legal erudition and common sense. Also, he is unassuming and respectful towards everyone he meets. I can attest to this as the recipient of kindness, encouragement, and advice from Judge Wechsler since meeting him while I was a lowly law student in the late 1990s.

His shoes will be hard — perhaps impossible — to fill.


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Nakamura sworn in as New Mexico’s Chief Justice

Chief Justice Judith Nakamura

Yesterday, the New Mexico Supreme Court’s newest member, Judith Nakamura, was sworn in as Chief Justice. She succeeds Justice Charles Daniels in that post.

The swearing-in ceremony took place yesterday at the New Mexico Judicial Conclave here in Albuquerque. You can read the details in this story by Katy Barnitz in the Albuquerque Journal.

Chief Justice Nakamura was a longtime judge on Albuquerque’s Metropolitan Court until Governor Martinez appointed her to the Supreme Court in 2015. She is a hot-air balloon pilot, and a cancer survivor.

Congratulations to the Chief!

Also, thanks and appreciation are in order for Charles Daniels’ work as chief justice. He has worked long and tirelessly to improve New Mexico’s judicial system.

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