Tenth Circuit Judge Paul Kelly to take senior status.

The U.S. Courts’ list of future judicial vacancies now indicates that Tenth Circuit Judge Paul Kelly will take senior status on a date yet to be announced.

Judge Kelly was appointed to the Tenth Circuit in 1991 by President George H.W. Bush, and confirmed in April 1992.

Judge Kelly’s action will open a New Mexico seat on the Tenth Circuit for President Trump to fill. I have heard that U.S. District Judge James O. Browning may be interested in the appointment. I have not yet heard of any other possible candidates, so please let me know if you know who’s in the running!

And thanks to Judge Kelly for his long active service to our country!

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Electronic filing is now available at the New Mexico Supreme Court!

Today I received the following welcome announcement from Joey Moya, Clerk of the New Mexico Supreme Court:

As of today, electronic filing and service is​ ​available for use on a voluntary basis for all new and pending cases in the Supreme Court through the same File and Serve system used in state district courts throughout New Mexico.  Paper filings will continue to be accepted by the Supreme Court until July 1, 2017, at which time use of the electronic filing system for all proceedings in the Supreme Court will become mandatory.  ​To learn more about the Supreme Court’s new eFiling process and for information about training opportunities, please visit the Supreme Court’s website by clicking here

Thanks to all of those folks who have worked hard to make e-filing a reality. Let’s hope the New Mexico Court of Appeals is able to follow suit soon!

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NMCA: Expert failed to establish prima facie case that pharmacy satisfied standard of care

Earlier this month, the New Mexico Court of Appeals issued a decision (Oakey v. May Maple Pharmacy, Inc.) that should be required reading for all lawyers involved in professional negligence cases.

The lawsuit alleged that a pharmacy was negligent for prescribing excessive quantities of potentially addictive medications, such as Oxycodone, and ignoring signs that the patient was abusing them. The patient died of an overdose.

The pharmacy moved for summary judgment, supported by an expert affidavit stating generally that pharmacists satisfy the standard of care merely by filling facially valid prescriptions written by physicians, and that to impose any greater standard of care risked harmful interference with the physician-patient relationship. The affidavit “cited no statutes, regulations, or other authorities” in support of the expert’s proposed standard. The trial court granted summary judgment.

The Court of Appeals, in an opinion by Chief Judge Linda Vanzi, held that the expert’s affidavit did not establish a prima facie case for summary judgment. The Court noted that several New Mexico regulations imposed obligations on pharmacists to identify medication abuse and to take appropriate steps to resolve any problems, but the expert did not address any of these.

The Court held that “a party cannot establish a professional standard of care as a matter of law with an expert affidavit that fails to account for law applicable to the professional and/or to the particular circumstances in which the professional has acted or failed to act.”

The lesson from this case will likely apply to all professional negligence cases. If you want to move for summary judgment on the ground that your client has met the standard of care, your expert must address any applicable regulations or standards, and cannot simply say that in his or her opinion, the standard of care has been satisfied.


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Tenth Circuit upholds New Mexico’s challenge to DOI Indian gaming regulations

The Indian Gaming Regulatory Act requires states to negotiate in good faith with Indian tribes who seek to establish a gaming compact with the state, and sets forth procedures for the negotiation process, including mediation.

Ultimately, if the parties are unable to agree, the Act provides that the Secretary of the Interior “shall prescribe, in consultation with the Indian tribe, procedures … consistent with the proposed compact selected by the mediator … under which Class III gaming may be conducted.” In response to this language, the Department of the Interior enacted regulations at 25 C.F.R. Part 291.

As part of the ongoing dispute between the State of New Mexico and the Pueblo of Pojoaque over tribal gambling, the State sued the Department of the Interior, arguing that the Part 291 regulations were beyond its authority. The District Court agreed with the State.

On Friday, the Tenth Circuit issued its opinion in State of New Mexico v. DOI, affirming the trial court. The opinion, by Judge Holmes, holds that the State had standing, the dispute is ripe and justiciable, and that the Part 291 regulations exceeded the Department’s statutory authority.

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10th Circuit denies rehearing in case involving student essay that criticized lesbianism

I am reliably informed that the Tenth Circuit has denied the petition for rehearing en banc filed by a student who sued the University of New Mexico for First Amendment violations as a result of actions allegedly taken against her after she submitted an essay critical of lesbianism in one of her classes.

The Tenth Circuit issued its panel opinion in Pompeo v. Board of Regents of the University of New Mexico last month. I previously wrote about the case here and here.

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NM Supreme Court to hear writ petition challenging Governor Martinez’s budget vetoes

According to this story by Steve Terrell in the Santa Fe New Mexican, the New Mexico Supreme Court has announced that it will consider the Legislature’s petition challenging Governor Susana Martinez’s line-item vetoes of the Legislature’s own budget and the budget for higher education institutions.

The Governor will have until May 5 to file a response to the petition, and the Legislature will have until May 10 to file a reply.

The Supreme Court will hold oral argument on May 15.

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Legislature petitions NM Supreme Court to overturn Governor’s budget vetoes

The Legislature has filed an extraordinary writ petition in the New Mexico Supreme Court against Governor Susana Martinez, seeking to overturn her veto of funding for the Legislature itself and higher education institutions.

Andy Lyman of the New Mexico Political Report has this story about this legal conflict, which also contains a copy of the petition.

For further coverage, Dan Boyd has this story about the lawsuit in the Albuquerque Journal, and KRQE News 13 has this story.

And you can read about the Governor’s response in “New Mexico governor won’t be bullied by lawsuit” from KOAT Action News 7.


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10th Circuit rejects Osage tribal members’ claim that trust accounting should have covered longer time period

In Fletcher v. United States, the Tenth Circuit (in an opinion by Judge Paul Kelly) rejected claims by members of the Osage Tribe of Oklahoma that the district court improperly limited the government’s obligation to perform an accounting of revenues derived from the mineral estate beneath their former reservation.

The tribal members wanted a more detailed accounting stretching back to 1906, but the the Tenth Circuit said that trial court properly exercised its discretion to order a more limited accounting. In a 2013 opinion in this case, the Tenth Circuit said that the required accounting should not be a “green eye-shade death march through every line of every account over the last one hundred years.” (Unsurprisingly, this colorful language was written by now-Justice Neil Gorsuch).

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U.S. District Court to host premiere of a documentary: “Taming New Mexico”

The U.S. District Court for the District of New Mexico will host the premiere of a documentary called “Taming New Mexico,” a 56-minute film (narrated by Sam Donaldson) that, according to one announcement, “tells the story of now New Mexico transitioned from the Spanish-Mexican rule of law to the American legal system that New Mexico has today.” Here is the trailer.

This event (which is “black-tie-optional”) will occur on Wednesday, May 10, 2017 at 5:30 p.m. at the Pete V. Domenici United States Courthouse in Albuquerque. Please RSVP by writing to info@corazonevents.com.

As an aficionado of New Mexico history, it pains me that I will be out of state on May 10! But fortunately for me (and maybe for you),  the film will be shown on KNME, Channel 5.1 on Thursday, May 18 at 7:00 p.m.

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10th Circuit rejects UNM student’s First Amendment claim over anti-lesbian essay

At the end of March, the Tenth Circuit rejected a student’s claim that the University of New Mexico and two of its employees violated her First Amendment rights by actions they took in response to an essay she wrote criticizing lesbianism.

The opinion is Pompeo v. Board of Regents of the University of New Mexico, written by Judge Lucero. I previously wrote about this case here.

Although now-Justice Neil Gorsuch was on the panel for this case, he did not attend the oral argument, nor did he participate in writing the decision.


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