Interview with Kerry Kiernan, candidate for NM Court of Appeals


Kerry Kiernan (Photo by Mark Holm © 2014)
Kerry Kiernan (Photo by Mark Holm © 2014)

Earlier this week I spoke with Kerry Kiernan, an appellate lawyer with the Sutin, Thayer & Browne law firm in Albuquerque. He is the Democratic Party’s nominee for the New Mexico Court of Appeals. His campaign website is here, and his campaign Facebook page is here.

Q. I’m here with Kerry Kiernan to talk with him about his campaign for the New Mexico Court of Appeals. Thanks for talking with me today.

A.  Thanks for having me.

Q.  Tell us about your family and background before going to law school.

A.  I spent the first 14 years of my life in New York. My dad was a police officer, and was the director of recruit training for the New York police. My parents decided to retire out here because of my mom’s health problems, and so when I was 14 we moved to Albuquerque. They had been out here previously and liked it, so we moved here, and I had two older brothers who did not move with us. I went to Cleveland junior high school, Sandia High School, and then the University of New Mexico for both undergraduate and law school. So I came here in 1968 and have been here ever since.

Q.  Why did you decide to attend law school, and where did you go?

A.  I went to UNM, and I wanted to go to law school because I had studied public administration, had studied political science and history in undergraduate school, and it seemed like the logical thing to do would be to go to law school because I liked the process of law, I enjoyed constitutional law. And also there was an employability issue. It seemed to be more likely that I would have a job as a lawyer than I would as a college teacher. So I picked law school.

Q.  Tell us about your experience as a lawyer. I know you’re an appellate lawyer, and tell us about any other experience you have that qualifies you for the Court of Appeals.

Well, I started out in private practice at the Keleher firm for two years when I first got out of law school, doing both appeals and general civil litigation of every type. I did antitrust, I did RICO litigation, I did insurance defense. But at the time I didn’t think I was probably suited to continue in private practice because I was finding myself more and more attuned to appellate issues. I loved the research and writing.

And actually, a clerkship came open for Judge [A. Joseph] Alarid, who was moving up from district court to the Court of Appeals in 1984. And I thought I would actually enjoy that more. So I applied and became his first clerk. And really at that point I grew to love the appellate process. I loved the research, the writing. He gave us a lot of responsibility. He helped us write opinions. He reviewed what we wrote. Of course he always had the final say, but he gave us a lot of responsibility.

And at that time, I said to myself, “This is what I want to do, I would one day want to be an appellate judge.” But I realized back then that I would need years of qualifications so I could become a credible candidate.

After I left the clerkship, I worked for the appellate public defender for two years doing nothing but criminal appeals, which satisfied me greatly. Then I went back into private practice in Albuquerque, and in that private practice I’ve done almost every kind of civil litigation that there is and civil appeals that there are. I went back into private practice in 1987, and am still in private practice, and have been at various firms.

Q.  Why did you decide to seek a seat on the New Mexico Court of Appeals, and why should the voters choose you?

A.  I’ve wanted the job for 25 years, and I’ve tried to actually structure my practice to get to that point. I’ve done, as I’ve said, an innumerable number of civil appeals. I was fortunate enough to have been certified as an appellate practice specialist by the State Bar, one of only eight lawyers in the state doing that. And I think my background is unique. I’ve done both civil and criminal, and I’ve done almost every kind of civil appeal there is, whether it is personal injury, whether it is antitrust, whether it’s class action appeals, Indian gaming appeals, in both federal and state courts. Plus, I’ve had a wide variety of experience in criminal appeals, from misdemeanors to a capital murder case.

So I think that experience means I can hit the ground running and not need a lot of on-the-job training in the issues at the Court of Appeals.

Q.  What, if anything, do you think could be improved about the Court of Appeals?

A.  Well, like you and I have been talking, I know the Court of Appeals does a good job, and I know it has a very heavy caseload. A couple of things that I would ask the Court to focus on more heavily is the certification issue. As you know, cases can be certified to the New Mexico Supreme Court if they’re of substantial public importance. Of course the Supreme Court has to agree to take those cases, but I believe there were two cases certified in the 2013-14 time period, and if I were on the Court, I would urge the other judges on the Court of Appeals to look more heavily at certification issues, because it would save a year and a half or two years of litigation if the case were taken up by the Supreme Court. That’s one thing I would do.

The other thing I would do is, oftentimes, a motion to dismiss is filed in the Court of Appeals based on the reason that there’s no final judgment. And briefing is done regarding that motion, and yet the Court holds that decision in abeyance until full briefing on the merits of the appeal is done. And I think that can be a waste of judicial resources because I think the Court has all the information it needs as to whether or not there was a final judgment, rather than have to wait another year, when the Court may make the same decision after getting the merits briefing. So I would really focus on trying to deal with motions to dismiss appeals more quickly.

Q.  Please describe what your philosophy would be as an appellate judge.

My philosophy as an appellate judge would be to read the cases and the law, to pay attention to standards of review, to pay attention to the precedents of the New Mexico Supreme Court, and to define the issues from both sides, and try to make the best and correct legal guess as to what the answer is.

I don’t have a philosophy. I think if you go in with an ideology you will skew the results of the case. I would point to the U.S. Supreme Court as an example of that. I think it’s too ideological. I think a judge has to look at the facts and the law, and put aside, certainly, any personal opinions that he or she might have. So my philosophy is to do complete research, to understand the issues, and to write an opinion that is as guided by the law as possible.

Q.  What past or present appellate judge, living or dead, do you most admire, and why?

A.  Well, from New Mexico, I clerked with Judge Alarid, who I admired, and Judge [Joe] Wood and Judge [William] Hendley. I admire them very much, because they knew the law, and they were very succinct in their opinion writing. Sometimes I think that we’ve lost that succinctness and clarity in opinions. And I would go back to a style of opinion writing where, if an earlier case had decided an issue, I would refer back to that earlier case. For instance, there were many criminal and workers’ compensation cases that Judges Wood and Hendley wrote, where they would describe the facts and say “This case is controlled by State v. So-and-so. Go see that case, and here’s our decision.”

And I think there’s a real point to being succinct. And I also think the Court sometimes goes into too much detail regarding standards of review, the standards of summary judgment. Sometimes the opinions can be more succinct.

I think Judge Hendley, Judge Wood, Justice [Richard] Ransom, and Justice [Seth] Montgomery on the Supreme Court. Those are four judges that I think about.

Q.  What book, or books, have had the most influence on you?

A.  For some reason, I really like The Scarlet Letter, by Nathaniel Hawthorne. I really like the way he presented the concepts of guilt and innocence. And I think the history books about Lincoln have been very good. The Team of Rivals book has had a lot of influence on me in terms of the collaborative process, because of course a judge has to be part of that collaborative process. But I was very interested in all of the books about Lincoln, especially the book on Lincoln at Gettysburg, about the composition of that speech. I really loved how, in terms of going back to the issue of succinctness, look what he did with such a small amount of time. And that’s what I think is so great.

And those historical books have had a lot of influence on me. I’ve tried in my own writing to be as clear and succinct as possible, because I know, I think that one thing practitioners forget is, they sometimes think that appellate judges have all the time in the world to peruse long briefs, and they don’t. If anything else, judges on the Court of Appeals, on the Supreme Court, are under time pressures, are under docket pressures, and they want you to get to the point. So succinctness in brief writing is as important to me as succinctness in opinion writing.

Q.  What do you do for enjoyment in your spare time, if you have any spare time?

A.  There is no spare time! But I have spent a lot of time trying to garden. Taking walks. Hanging out with the family. I have two children, a daughter and a son. The son’s in college, and the daughter’s about to go to college. My wife’s a lawyer here. But to get out, especially at this time of year, into the garden, that’s a good thing.

Q.  Red or green? And whichever you choose, where do you like to eat it?

A.  Duran’s red is really good. I will have green too, but I like the taste of red more, so if that bothers some voters, I’m sorry about that.

Q.  Thank you for your time, Mr. Kiernan. I appreciate it.

A.  Thank you!

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