10th Circuit affirms injunction against ban aimed at jury nullification advocacy outside courthouse

by Emil J. Kiehne Posted on April 11, 2016

On Friday, the Tenth Circuit has affirmed a preliminary injunction entered against a Colorado state trial court to prevent it from enforcing a rule prohibiting expressive activities in a plaza outside the courthouse.

The rule was targeted at advocates of jury nullification — i.e. the belief that jurors may refuse to convict a defendant if they believe the law under which she is charged is immoral or should not be enforced — who had been distributing pamphlets outside the courthouse, including persons called for jury duty.

Plaintiffs (including the Fully Informed Jury Association, an advocacy group that supports nullification) sued, arguing that the rule violated their First Amendment rights, and the district court granted a preliminary injunction.

The lengthy opinion in Verlo v. Martinez was written by Judge Carolyn McHugh, and while it affirms the preliminary injunction, it provides further guidance to the lower court on remand, and takes no position on whether a permanent injunction should be entered.

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Stephen French’s investiture as a judge on the NM Court of Appeals to be held on April 21

by Emil J. Kiehne Posted on April 11, 2016

The Court of Appeals has announced that Judge Stephen French’s investiture ceremony will occur on Thursday, April 21, 2016, at 4:30 p.m., at the Court of Appeals building in Albuquerque, the Pamela B. Minzner Law Center at 2211 Tucker NE.

Judge French was actually sworn into office on February 19, shortly after his appointment as I noted in this post, but this is a public ceremony to welcome him to the Court.

A reception will follow the ceremony at Flamez Bistro, 9821 Montgomery Blvd. NE.

I plan to attend, and hope to see all members of the New Mexico appellate community there.

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10th Circuit reduces $25.5 million punitive award to $1.95 million

by Emil J. Kiehne Posted on April 5, 2016

Last week, the Tenth Circuit issued its decision in a closely-watched punitive damages case, Lompe v. Sunridge Partners, LLC.

The case arose from a lawsuit filed by Amber Lompe, a 20-year old college student in Wyoming, who suffered carbon monoxide poisoning while living in an apartment complex. She claimed that the apartment complex’s owner, and its property manager, were negligent.

In an opinion by Judge Carolyn McHugh, the Court reduced the jury’s award of $25.5 million in punitive damages against two defendants to $1.95 million against one of them. The Court found that insufficient evidence supported any punitive award against the property’s owner, and that the award against the property management company was unconstitutionally excessive.

The Court explained that in reviewing the punitive damages award on post-judgment motions, the trial court improperly applied a deferential standard to the jury’s award, rather than the “exacting” de novo standard required by the Due Process Clause of the federal constitution.

The opinion contains a discussion of the factors that make a defendant’s conduct sufficiently reprehensible to warrant punitive damages, and also corrects the trial court’s improper calculation of the ratio of punitive to compensatory damages — the trial court erroneously compared the punitive award against each defendant to the total award of compensatory damages, rather than to each defendant’s share of compensatory damages. The Court reduced the punitive damages award against the management company to a 1:1 ratio with the compensatory damages award against it.

Judge Robert Bacharach dissented. He believed that the evidence was sufficient to support a punitive damages award against the property owner, and while he agreed that the punitive award against the management company was unconstitutional, he would have held that a 4:1 ratio of punitive to compensatory damages satisfied the constitutional standard.

 

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New Mexico Court of Appeals celebrates 50th anniversary

by Emil J. Kiehne Posted on April 5, 2016

On Friday, April 1, the New Mexico Court of Appeals celebrated 50 years of existence.

Some of the Court’s history is recounted in this op-ed by Judge Zamora and Judge Bustamante, which ran in the Santa Fe New Mexican. A more detailed version can be found in History of the New Mexico Court of Appeals, by Judges Thomas A. Donnelly and Pamela B. Minzner, who were then serving on the Court (Judge Minzner, of course, went on to serve on our Supreme Court, and the Court of Appeals’ building in Albuquerque is named after her), at 22 N.M. L. Rev. 595 (1992).

Happy birthday to the Court! May it enjoy 50 more years of distinguished service to New Mexico.

 

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Save the date for the 10th Circuit’s 2016 Bench & Bar Conference

by Emil J. Kiehne Posted on March 28, 2016

The Tenth Circuit has announced that it will hold its Bench & Bar Conference from August 31 through September 3, 2016 at The Broadmoor resort in Colorado Springs.

Registration for this event will open sometime in May 2016.

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Exemplary legal writing from 2015

by Emil J. Kiehne Posted on March 25, 2016

The Green Bag has published a list of its exemplary legal writing honorees for 2015.

The list contains opinions, law review articles, and books that you’ll enjoy reading, especially if you’re a law nerd like me.

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Read the March 2016 edition of “Appellate Issues.”

by Emil J. Kiehne Posted on March 23, 2016

The ABA’s Council of Appellate Lawyers has published the March 2016 of Appellate Issues, which is full of articles that will be of interest to any appellate lawyer.

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Former NM AG Hal Stratton explains why “civil asset forfeiture is wrong”

by Emil J. Kiehne Posted on March 21, 2016

The Cato Institute has published this interview with former New Mexico Attorney General Hal Stratton, discussing our state’s elimination of civil asset forfeiture.

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Help the NM Court of Appeals celebrate its 50th Anniversary on April 1

by Emil J. Kiehne Posted on March 18, 2016

On Friday, April 1, the New Mexico Court of Appeals will hold a reception to celebrate the fiftieth anniversary of its existence.

The celebration will be held at the Court of Appeals building in Albuquerque, from 4:00 p.m. to 6:00 p.m. (Unfortunately, I’ll be out of town on that date and unable to attend!).

To RSVP, please contact the clerk’s office at (505) 841-4618, or e-mail Aletheia Allen at [email protected] by March 25.

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NM Supreme Court: Prison guard’s employers are vicariously liable for sexual assaults on inmates

by Emil J. Kiehne Posted on March 15, 2016

Anthony Townes, a guard at a privately-operated prison, used his power to rape several female inmates. He pled guilty to criminal charges arising from those assaults (and, hopefully, will spend a long time in prison himself).

The inmates sued in federal court, and a jury awarded them compensatory and punitive damages. On appeal, the Tenth Circuit asked the New Mexico Supreme Court whether, in cases where a corrections officer sexually assaults an inmate, the defense of comparative fault allows a jury to compare the employer’s alleged negligence with the inmate’s alleged fault.

Justice Daniels’ opinion answers that question in the negative. While an employer is generally not liable for an employee’s intentional tort under principles of respondeat superior, under the “aided-in-agency” theory, an employer may be liable without fault where the employee’s commission of the tort was aided by the agency relationship.

The Court recognized that this theory is subject to abuse, since there are many situations “in which the commission of a tort is facilitated by the tortfeasor’s employment.” The Court therefore limited this theory to “cases where an employee has by reason of his employment substantial power or authority to control important elements of a vulnerable tort victim’s life or livelihood.” Whether the theory is appropriate in a given case is a question of law for the trial court.

The opinion is Spurlock v. Townes.

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