Category Archives: Opinions and Analysis

NM Court of Appeals affirms dismissal due to government’s use of false document

by Emil J. Kiehne Posted on April 29, 2014

When you’re litigating a case, it sometimes happens that your client will lose, or will not have kept, copies of relevant documents. When that situation arises, what do you do? I guess it would depend on the circumstances, but here’s a protip … Continue reading →

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Tenth Circuit: plaintiff cannot manufacture diversity jurisdiction by assigning claims to corporation

by Emil J. Kiehne Posted on April 25, 2014

The federal district court in Utah found that J. Hoyt Stephenson was a resident of Utah, and therefore dismissed his counterclaims and third-party claims against a number of other Utah residents. Mr. Stephenson then incorporated National Fitness Holdings, Inc. in … Continue reading →

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Borrower who failed to make payments can’t be criminally charged for damaging property

by Emil J. Kiehne Posted on April 4, 2014

In 2006 Wyatt Earp (no, not that Wyatt Earp) bought a home on a real estate contract. (In New Mexico, “real estate contract” is a term of art, which refers to an arrangement in which the buyer agrees to pay … Continue reading →

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Tenth Circuit reverses order granting new trial to Deming, NM’s Reese family in gun case

by Emil J. Kiehne Posted on March 21, 2014

The saga of the Reese family, who owned a gun store in Deming, New Mexico, has become something of a cause célèbre among Second Amendment advocates. They were charged with conspiracy, aiding and abetting straw purchases of firearms, gun smuggling, … Continue reading →

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“Contrary to sound principles of judicial and common sense, we are required to hear this direct appeal….”

by Emil J. Kiehne Posted on March 20, 2014

So said Justice Bosson today in a non-precedential decision, Town of Silver City v. Ferranti, commenting on a statute (NMSA 1978, sec. 35-15-11) which provides a municipality with a right of direct appeal to the New Mexico Supreme Court “from any … Continue reading →

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Tenth Circuit holds that Guarantee Clause claim is justiciable

by Emil J. Kiehne Posted on March 10, 2014

The Guarantee Clause (or “Guaranty” Clause) is located in Article IV, Section 4, and provides that “The United States shall guarantee to every State in this Union a Republican Form of Government….” It’s one of those clauses of the Constitution that … Continue reading →

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War Powers Clause does not authorize abrogation of state sovereign immunity, holds NM Court of Appeals

by Emil J. Kiehne Posted on March 5, 2014

It’s not often that our state courts have an opportunity to address the War Powers Clause of the Constitution (otherwise known as Article I, Section 8, Clause 11), but the Court of Appeals has held, in Ramirez v. State of … Continue reading →

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New Mexico Supreme Court issues four published decisions in February 2014

by Emil J. Kiehne Posted on March 3, 2014

Below is my summary of the four published decisions the New Mexico Supreme Court issued in February 2014: 1.   Rayellen Resources, Inc. v. New Mexico Cultural Properties Review Committee (Feb. 6, 2014). The Court affirmed the decision of the New … Continue reading →

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With restrictive covenants, it’s better to beg permission than ask forgiveness

by Emil J. Kiehne Posted on February 11, 2014

The Court of Appeals has upheld enforcement of a restrictive covenant against a woman who opened a dog training and boarding business in a residential area. See Myers v. Armstrong (Feb. 5, 2014), opinion by Judge James Wechsler. The moral … Continue reading →

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Tenth Circuit rejects New Mexico’s view that unbalanced arbitration agreements are unenforceable

by Emil J. Kiehne Posted on February 11, 2014

New Mexico’s appellate courts have held that arbitration agreements are unconscionable if they allow one party to bring its most likely claims in court, while requiring the other party to bring its most likely claims in arbitration. This view is reflected … Continue reading →

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