10th Circuit rejects habeas claim in Ryder death penalty case

by Emil J. Kiehne Posted on January 12, 2016

James Chandler Ryder believed that the apocalypse would occur on January 1, 2000, and planned to flee to the Yukon, where he believed he could survive that event. Daisy Hallum and her son, Sam, were storing supplies that Mr. Ryder had acquired in anticipation of the catastrophe, but they had a dispute with him and refused to return them. Upset that the Hallums were interfering with his chances of survival, Mr. Ryder killed them. As it turns out, the world did not end in 2000, and Mr. Ryder was eventually sentenced to death.

Yesterday the Tenth Circuit rejected Mr. Ryder’s claims that he was incompetent to stand trial; that Oklahoma’s procedures for assessing his competency were unconstitutional; that his trial counsel was ineffective for not fully investigating his mental health history; and that appellate counsel was ineffective.

The opinion is Ryder v. Warrior, by Judge McHugh.

Posted in News, Opinions and Analysis, Tenth Circuit | Tagged , , , | Comments Off on 10th Circuit rejects habeas claim in Ryder death penalty case

10th Circuit rules against officers who allegedly procured false confession from mentally disabled man

by Emil J. Kiehne Posted on January 12, 2016

The Tenth Circuit has affirmed a trial court’s denial of qualified immunity to several Colorado police officers, who are being sued for allegedly using a confession they knew to be false to charge plaintiff Tyler Sanchez, a man with cognitive and developmental disabilities, with burglary and the sexual assault of an 8-year-old girl.

The Court held that Sanchez adequately pled the claim, because his complaint alleged that the officers knew that the victim’s description of her attacker was strikingly different from Sanchez; that Sanchez was unable to give them any details of the supposed crime; and that Sanchez had given details that the officers knew to be false.

The opinion is Sanchez v. Hartley, written by Judge Bacharach.

Posted in Opinions and Analysis, Tenth Circuit | Tagged , , , | Comments Off on 10th Circuit rules against officers who allegedly procured false confession from mentally disabled man

“NM vs. Texas — Whose law wins?”

by Emil J. Kiehne Posted on January 11, 2016

Scott Sandlin has this article in today’s Albuquerque Journal about the Montaño v. Frezza case pending before the New Mexico Supreme Court. I’ve previously written about this case here.

The plaintiff is a New Mexico resident who underwent gastric bypass surgery at Texas Tech University hospital in 2004. She later filed a lawsuit in New Mexico state court alleging that the surgeon, Dr. Eldo Frezza, committed malpractice. Dr. Frezza argued that the case should be dismissed because, as an employee of the State of Texas, he is entitled to sovereign immunity. Both the trial court and the Court of Appeals refused his request for dismissal, but allowed him the same “immunity” from liability that a qualified healthcare provider would enjoy under the New Mexico Medical Malpractice Act.

As Ms. Sandlin’s article notes, several amici have filed briefs in this case. Healthcare providers argue that affirming the decision will exacerbate the shortage of medical care available to New Mexicans in the eastern and southern parts of the state, because Texas medical providers may decline to provide non-emergency medical care.

Plaintiffs’ lawyers argue that these concerns are exaggerated. They also argue that many New Mexicans are required by their insurers to obtain care in Texas, and should not be deprived of a remedy should they receive substandard care.

This case could also be affected by another case pending in the Supreme Court of the United States this term. The reason that Texas government employees can be sued in New Mexico in the first place is due to the Supreme Court’s 1979 decision in Nevada v. Hall, which permits states to be sued in the courts of other states without their consent.

But last month the Supreme Court heard oral argument in Franchise Tax Board of California v. Hyatt, a case which asks whether Nevada v. Hall should be overruled. If that decision is overruled, it could upend the ability of New Mexicans to sue physicians who are employed by the State of Texas in our state courts.

Posted in New Mexico Supreme Court, News | Tagged , | Comments Off on “NM vs. Texas — Whose law wins?”

“Our lovely Supreme Court Building” in Santa Fe

by Emil J. Kiehne Posted on January 6, 2016
The New Mexico Supreme Court Building in Santa Fe
The New Mexico Supreme Court Building in Santa Fe. Photo copyright Emil J. Kiehne, 2016.

Paul Weideman has this story in the Santa Fe New Mexican about our Supreme Court’s distinctive building in Santa Fe, which was built in 1937 by the Public Works Administration as part of the New Deal. The story also includes some nice photos of the building’s exterior and interior.

The story quotes Justice Charles Daniels, who describes some of the building’s history, and notes that he races Formula 1 cars in his spare time, is the first justice since statehood to wear a beard, and is a blues-rock bassist in a local band called Lawyers, Guns, and Money. Who said that appellate lawyers and judges have to be boring?

As an appellate law nerd, I get chills whenever I enter the building. In 2004 I had the honor of being sworn into the New Mexico Bar in the main courtroom by former Justice Patricio M. Serna. The Supreme Court Law Library is filled with volumes on New Mexico’s legal history, and is a lovely place to research, write, and think. If you love the law, and are ever in Santa Fe, you should make it a point to stop and visit.

Also, Happy New Mexico Statehood day!

Posted in Uncategorized | Tagged , | Comments Off on “Our lovely Supreme Court Building” in Santa Fe

10th Circuit: Arbitration agreement did not allow plaintiff effective vindication of rights

by Emil J. Kiehne Posted on January 6, 2016

In Nesbitt v. FCNH, Inc., the Tenth Circuit has affirmed a trial court’s decision refusing to enforce an arbitration agreement because it did not allow the plaintiff to effectively vindicate her rights.

Rhonda Nesbitt sued defendants, claiming that they violated the Fair Labor Standards Act by requiring her to perform free massage services while attending their massage therapy school. The defendants moved to compel arbitration based on an agreement that plaintiff had signed. Ms. Nesbitt provided an affidavit that she could not afford the required arbitral fees and costs. The trial court denied the motion because the agreement did not allow Ms. Nesbitt to effectively vindicate her rights.

The Supreme Court has suggested, in at least two cases, that an arbitration agreement may be invalid on public policy grounds if it requires a plaintiff to participate in an arbitration forum whose fees and costs “make access to the forum impracticable.” For example, arbitration agreements sometimes require the parties to split payment of the arbitration fees, while the parties to a lawsuit in court don’t have to pay the judge’s salary. If such fees are higher than a plaintiff can afford, the arbitral forum wouldn’t be an effective means of vindicating the plaintiff’s rights.

The Tenth Circuit, in an opinion by Judge Briscoe, affirmed and rejected each of the defendant’s arguments as follows: Continue reading →

Posted in Opinions and Analysis, Tenth Circuit | Tagged , , | Comments Off on 10th Circuit: Arbitration agreement did not allow plaintiff effective vindication of rights

Tenth Circuit upholds rafting company’s liability waiver in wrongful death case

by Emil J. Kiehne Posted on January 6, 2016

Sue Ann Apolinar signed up for a rafting trip on the Arkansas River in Colorado. Tragically, while her raft was passing through a rapid called Seidel’s Suck Hole, it capsized. Other passengers were pulled out, but Ms. Apolinar became stuck in a logjam, and drowned despite multiple efforts to save her.

Ms. Apolinar’s son sued the rafting company for negligence per se and fraud, but the rafting company moved for summary judgment because Ms. Apolinar signed a waiver of liability for negligence, and because the release she signed provided adequate warning of the dangers, thus defeating her fraud claim.

In Espinoza v. Arkansas Valley Adventures, LLC, the Tenth Circuit affirmed. Judge Gorsuch’s opinion notes that the Colorado Supreme Court has approved the validity of liability waivers for negligence in the context of recreational businesses, which do not provide “essential” services to the public.

The plaintiff also argued that the rafting company misrepresented the risks of the trip on its website, but the Court rejected this claim because even if there were a dispute of material fact about whether the dangers were initially misrepresented, the release that Ms. Apolinar signed provided a vivid description of the risks: “a party cannot — as a matter of law — continue to rely on a previously expressed false statement after the truth is aired.”

Judge Harris Hartz dissented from the ruling on the fraud claim because although the rafting company’s warning listed the potential risks, “the description of the rapids is what would convey the probability of those risks. It is not enough to list a risk if the customer has been misled about its probability.”

I think it’s unsurprising that Colorado gives effect to liability waivers for recreational activities, given that such activities bring a lot of business into the state. I would also not be surprised if out-of-state plaintiffs were to try to bring claims in their own states (assuming personal jurisdiction could be obtained over the defendant) and argue that Colorado’s policy favoring liability waivers violate their own states’ public policies.

Posted in Opinions and Analysis, Tenth Circuit | Tagged , , , , , | Comments Off on Tenth Circuit upholds rafting company’s liability waiver in wrongful death case

Tenth Circuit rejects architectural copyright infringement claim

by Emil J. Kiehne Posted on January 6, 2016

In Savant Homes, Inc. v. Collins, the Tenth Circuit affirmed summary judgment for the defense on a homebuilder’s claim that the defendants built two homes based on its copyrighted architectural design.

The design, called the Anders Plan, consists of “a ranch house with two bedrooms on one side and a master suite on the other, separated by a combined family room, dining room, and kitchen.” The defendants (and their contractor) toured an Anders Plan home and obtained a brochure about it, and later built two homes with similar features.

The district court granted summary judgment because the plaintiff failed to show that the Anders Plan had any protectable content. The plaintiff’s expert offered testimony that the designs were similar, but did not offer any testimony that the Anders Plan contained original elements. The defense expert, on the other hand, provided uncontested evidence that the Anders Plan’s features were quite common, and therefore not protectable.

Judge Scott Matheson’s opinion affirmed the trial court’s findings, noting that while the Copyright Act protects architectural works, the “individual standard elements” are not protected, but only the “original selections or arrangements of such elements.” And because the plaintiff failed to prove that the Anders Plan contained such “original selections or arrangements,” the trial court properly granted summary judgment.

Posted in Opinions and Analysis, Tenth Circuit | Tagged , , , | Comments Off on Tenth Circuit rejects architectural copyright infringement claim

Deadline to apply for vacant NM Court of Appeals seat is January 19

by Emil J. Kiehne Posted on January 5, 2016

The New Mexico Judicial Nominating Commission has announced that applications to fill the vacancy on the Court of Appeals caused by Judge Cynthia Fry’s retirement are due on Tuesday, January 19, 2016, at 5:00 p.m.

You can get a copy of the application here.

The Commission will meet to interview the applicants on Wednesday, January 27, 2016 at 9:00 a.m. at the Supreme Court Building in Santa Fe. The meeting is open to the public.

Posted in New Mexico Court of Appeals | Tagged , | Comments Off on Deadline to apply for vacant NM Court of Appeals seat is January 19

NM Supreme Court denies Belen’s hospital appeal

by Emil J. Kiehne Posted on January 4, 2016

Deborah Fox has this story in the Valencia County News-Bulletin, reporting that the New Mexico Supreme Court has denied the City of Belen’s request to review a recent Court of Appeals decision, which held that the Village of Los Lunas has standing to challenge a decision by Valencia County to locate a hospital in Belen.

Los Lunas sued Valencia County, arguing that one of the county commissioners who voted in Belen’s favor was ineligible. The district court ruled that Los Lunas lacked standing, but the Court of Appeals disagreed.

You can read my earlier report on this case here.

Posted in New Mexico Supreme Court | Tagged , | Comments Off on NM Supreme Court denies Belen’s hospital appeal

Supreme Court asked to review Oklahoma license plate compelled speech case

by Emil J. Kiehne Posted on January 4, 2016

In August 2015, in Cressman v. Thompson, the Tenth Circuit rejected Keith Cressman’s claim that the State of Oklahoma violated his First Amendment right to freedom of speech by requiring him to use a license plate depicting a Native American shooting an arrow towards the sky. You can see a picture of the license plate after the majority opinion.

The Tenth Circuit rejected this compelled speech claim because a reasonable person would not view the license plate as conveying the pantheistic message to which Mr. Cressman objected, but “would likely connect the image to Oklahoma’s Native American history and culture.”

Mr. Cressman is now asking the Supreme Court to review his case. This post by Ilya Shapiro and Jayme Weber of the Cato Institute explains why they think the Tenth Circuit got it wrong. You can read the amicus brief the Cato Institute filed in support of Mr. Cressman’s petition for certiorari here.

Posted in Tenth Circuit | Tagged | Comments Off on Supreme Court asked to review Oklahoma license plate compelled speech case