NM Supreme Court: Texas doctor’s sovereign immunity will be upheld in medical malpractice case

Yesterday, the New Mexico Supreme Court issued its decision in the closely-watched case of Montaño v. Frezza. The case arose out of medical treatment that a New Mexico resident, Kimberly Montaño, received from a physician at Texas Tech University Hospital in Lubbock. Ms. Montaño later filed suit in New Mexico alleging that he committed malpractice.

The physician argued that he would have been entitled to sovereign immunity under Texas law, and asked the New Mexico courts to extend comity to Texas’ interests, and dismiss the case. The lower courts refused.

In a 4-1 opinion written by Justice Chavez, the Court agreed with the physician, holding that it would not violate New Mexico public policy to give effect to the Texas sovereign immunity statute as a matter of comity. Justice Vigil wrote a solo dissent, arguing that New Mexico’s interest in providing relief to its residents should have overcome Texas’ interest in sovereign immunity for its employees. (Chief Judge Linda Vanzi of the Court of Appeals sat by designation in place of Chief Justice Daniels, who did not participate in the case).

You can also read about the decision in this story by Martin Salazar in the Albuquerque Journal. I have previously written about this case here, here, and here.

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Have lunch with Judge French of the NM Court of Appeals

This Friday, March 3, the Appellate Practice Section of the New Mexico State Bar is hosting a brown-bag (i.e. bring-your-own) lunch with Judge Stephen French of the New Mexico Court of Appeals.

If you have any questions about practice before our Court of Appeals, this event provides an excellent chance to ask them in an informal setting.

The lunch will begin at noon. Please RSVP to Zach Ives at zach@ginlawfirm.com if you’d like to attend.

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Sen. Udall of New Mexico floats plan to confirm both Gorsuch and Garland to SCOTUS

U.S. Senator Tom Udall of New Mexico has proposed a plan to confirm both Judge Neil Gorsuch and Judge Merrick Garland to the Supreme Court of the United States, according to this story by Ashley Killough of CNN.

Whatever its merits, this idea strikes me as … not likely to succeed.

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Investiture ceremony for Judge Julie Vargas to be held on February 17

Judge Julie Vargas
Judge Julie Vargas

The investiture ceremony for Judge Julie Vargas of the New Mexico Court of Appeals will be held tomorrow afternoon, beginning at 4:00 p.m., at the National Hispanic Cultural Center’s Bank of America Theater, located at 1701 4th Street SW in Albuquerque. A reception will follow. I plan to attend, and hope to see you there!

If you would like to know more about Judge Vargas, please read my interview with her.



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Judge Linda Vanzi elected as Chief Judge of the New Mexico Court of Appeals

Today’s Bar Bulletin announces (at p. 9) that Linda Vanzi has been unanimously elected as Chief Judge of the New Mexico Court of Appeals. She replaces Judge Michael Vigil, who swore her into office on January 17.

Chief Judge Vanzi has served on the Court of Appeals since 2009. Before that, she served as a trial judge on the Second Judicial District Court. In both positions she has developed a reputation as a decisive, fair, and hard-working judge.

Congratulations to Chief Judge Vanzi!


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Roundup of links discussing the Gorsuch nomination

As you have doubtless heard by now, President Trump has nominated Judge Neil Gorsuch, of our very own Tenth Circuit, to fill the Supreme Court seat held by Justice Antonin Scalia until his death last February.

About five years ago I began a practice of reading every Judge Gorsuch opinion because they are so well-written. The impression I’ve formed of him is that he’s incredibly brilliant, impartial, serious, and devoted to the Constitution.

Here’s a roundup of links about this nomination. Naturally, conservatives are more enthusiastic about Judge Gorsuch than liberals (the latter probably disagree with Judge Gorsuch’s jurisprudence, and are unhappy with how Senate Republicans treated President Obama’s nominee, Judge Merrick Garland). But I’ll post links from all sides that I can find (if you know of any that I’ve missed and should include here, please e-mail me!):

Trump Nominates Neil Gorsuch to the Supreme Court by Julie Hirschfeld Davis and Mark Landler of the New York Times.

Trump picks Colo. appeals court judge Neil Gorsuch for Supreme Court by Robert Barnes of the Washington Post.

Trump nominates Gorsuch to fill Scalia vacancy by Amy Howe at SCOTUSblog.

Neil Gorsuch: A Worthy Heir to Scalia by Ramesh Ponnuru in National Review.

Donald Trump nominates Colorado’s Neil Gorsuch to the Supreme Court by Mark K. Matthews, John Frank, and David Migoya in the Denver Post.

Why Liberals Should Back Neil Gorsuch by Neal Katyal in the New York Times.

Neil Gorsuch Is Not a Villain by Mark Joseph Stern at Slate.com.

Is It Payback Time For Blocking Merrick Garland? by Kevin Drum in Mother Jones.

Neil Gorsuch, Elite Conservative by Prof. Noah Feldman at Bloomberg.com.

Numerous posts about Gorsuch by Ed Whelan at National Review’s Bench Memos blog.

And here’s a list of other links of to reactions by people and organizations, in support of and opposition to the nomination, posted at SCOTUSblog.



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Justice Alito to visit Albuquerque on February 14

Justice Samuel Alito of the Supreme Court of the United States will be visiting Albuquerque on Tuesday, February 14, where he will hold a “Fireside Chat.”

The event will be held at the old Federal Courthouse Building at 421 Gold Avenue SW in downtown Albuquerque. Lunch will be served at 11:15 a.m. The program will begin at noon and conclude around 1:00 p.m.

The Inns of Court, the Federalist Society, and the Federal Bar Association are co-sponsoring this event. You can register through the Federalist Society at this link. It may also be possible to register through the Inns of Court or the FBA, but if so I don’t have links to those! Space is limited, so if you are interested in attending, you should register soon.

Justice Harris Hartz of the Tenth Circuit will be posing questions to Justice Alito. If you’d like to submit a question for consideration, please e-mail them to hvpinnofcourt@gmail.com.

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NM Supreme Court: Probation term does not expire if defendant absconds

When a term of probation expires, it means the defendant has satisfied all criminal liability, and is entitled to a certificate from a court saying so. See NMSA 1978, sec. 31-20-8. The term of probation is tolled, however, if the defendant is a fugitive from justice. See NMSA 1978, sec. 31-21-15(C).

Last January, the Court of Appeals issued a controversial decision in State v. Begay, holding Section 31-21-15(C) applies only to sentences imposed by a district court, not a magistrate court (where defendant Begay was sentenced).

The upshot was that if a defendant violated his probation, and managed to avoid capture until after the original term of probation expired, then he would get off scot-free, since his probation could no longer be revoked.

The legislature and governor found this to be … less than satisfactory, and immediately amended the tolling statute to clarify that it applies to probation sentences imposed by magistrate courts too.

Yesterday the Supreme Court also pronounced itself less than satisfied, and reversed the Court of Appeals’ decision. The unanimous opinion in State v. Begay, written by Justice Nakamura, acknowledges that the plain language of Section 31-20-8 does not say that a term of probation doesn’t expire while a defendant is on the lam. But interpreting the statute in that way would lead to absurd results, because doing so would incentivize defendants to violate the terms of their probation and then attempt to evade the reach of the court until their probationary terms ended.

Thus, employing the “absurdity canon,” the Supreme Court held that a term of probation does not expire under Section 31-20-8 where a defendant becomes a fugitive from justice while on probation. I agree that this is the right result.

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Gov. Martinez appoints Henry “Hank” Bohnhoff to the NM Court of Appeals

This afternoon Governor Martinez announced the appointment of Henry “Hank” Bohnhoff to fill the seat on the New Mexico Court of Appeals vacated by Judge Roderick Kennedy.

Mr. Bohnhoff is a highly-regarded lawyer and has enjoyed a distinguished career for over 30 years. He graduated from Stanford University in 1978, and from Columbia Law School in 1982. He clerked for Chief Judge Howard C. Bratton of the federal district court here in New Mexico, and then served as Chief Assistant and Deputy Attorney General for the State of New Mexico from 1987 to 1989.

Since then, he has practiced law at the Rodey Law Firm in Albuquerque, where he has focused on commercial and real estate litigation, with particular expertise in land use and zoning. The people of New Mexico are fortunate that they will now enjoy his services on the Court of Appeals.

Once he takes office, Mr. Bohnhoff will be required to run in a partisan race in the 2018 general election.

Congratulations to Judge Bohnhoff!


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Gov. Martinez reappoints Stephen French to the NM Court of Appeals

I’m a little late to the party on this, as I haven’t been blogging for a while, but on December 22, Governor Martinez reappointed Judge Stephen French to the Court of Appeals to fill the seat vacated by Judge Michael Bustamante.

Judge French was originally appointed to the Court in early 2016, but was defeated by incoming Judge Julie Vargas in the November 2016 general election.

Congratulations to Judge French, and to a great new year for the Court!

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