According to this report by Blair Miller of kob.com, Governor Susana Martinez has appointed Judge Judith Nakamura of the Second Judicial District Court to fill the vacant seat on the New Mexico Supreme Court. Here is Governor Martinez’s official announcement.
This is a historic occasion — with this appointment by our state’s first female governor, a majority of the justices on our Supreme Court will be women for the very first time.
Congratulations to soon-to-be Justice Nakamura!
Today the New Mexico Supreme Court issued its decision in Moses v. Skandera, holding that the Instructional Materials Law, under which the state loans secular textbooks to children attending private schools, violates Article XII, Section 3 of the New Mexico Constitution.
The opinion by Justice Chavez reverses the Court of Appeals’ opinion, which had upheld the statute.
I represented some private schools and private school students who intervened and argued that the statute should be upheld, so I won’t comment on the merits, but of course I’m disappointed with this result.
Federal agents suspected Zachary Krueger, who lived in Kansas, of distributing child pornography on the internet. They obtained a warrant from a magistrate judge in Kanasas for his home, but discovered that neither he nor his computer was at home. His roommate told the agents that Krueger was in Oklahoma City, and the Kansas agents contacted their Oklahoma counterparts and arranged to have the warrant executed there. Agents also obtained another warrant from the Kansas judge purporting to authorize the search in Oklahoma. Child pornography was found on the computer.
The district court suppressed the evidence on the ground that a magistrate judge in one district lacks authority to authorize a search in another district. The Tenth Circuit affirmed in United States v. Krueger, an opinion by Judge Ebel. In addition, Judge Gorsuch wrote an opinion concurring in the judgment, which you should not miss.
Ben Gould of Seattle’s Keller Rohrback firm has this post about the case at his blog, Appellate Briefs. This looks like another blog worth adding to your regular reading list. And a hat tip to Howard Bashman of How Appealing for pointing me to Mr. Gould’s post.
Since our Supreme Court’s decision in Bank of New York v. Romero in 2014, New Mexico’s appellate courts have applied increased scrutiny to foreclosure lawsuits.
The latest example of this trend is last week’s decision by the Court of Appelas in BAC Home Loans Servicing LP v. Smith, holding (in an opinion by Judge Zamora) that a lender failed to establish it had standing at the time its foreclosure lawsuit was filed, because it failed to show it actually owned the note at that time.
The obvious takeaway here is that lenders filing foreclosure actions must be careful to ensure that all paperwork needed to establish standing is in order before such a lawsuit is filed.
Today the Supreme Court of the United States agreed to hear the Little Sisters of the Poor’s challenge to the accommodation provision of the federal contraceptive mandate. The order list is here.
In July, a panel of the Tenth Circuit rejected the challenge in Little Sisters of the Poor v. Burwell, holding that the accommodation does not substantially burden the nuns’ religious beliefs. In September, five judges of the Tenth Circuit dissented from the Court’s refusal to rehear the case en banc in this opinion by Judge Harris Hartz.
The Little Sisters of the Poor run the Villa Guadalupe in Gallup, New Mexico, where they provide care for the elderly poor.
I have previously written about this case here.
Earlier this week, the Tenth Circuit held that the citizenship of a master limited partnership for diversity jurisdiction purposes is that of all its unitholders, explaining that the Supreme Court’s decision in Carden v. Arkoma Associates, 494 U.S. 185 (1990) dictates that result.
The rules of complete diversity are technical and unforgiving. Make sure you understand how they work in any case involving newfangled partnerships and entities.
The opinion is Grynberg v. Kinder Morgan Energy Partners, L.P., written by Judge Matheson.
UPDATE (November 7, 2015): I came across this report that the ABA House of Delegates is urging Congress to amend the diversity statute so that unincorporated business entities would have the citizenship of their state of organization and the state where their principal place of business is located, like incorporated entities.
I have been remiss in noting that Justice Bosson’s retirement took effect this past weekend. The Albuquerque Journal carried this story by Scott Sandlin marking the occasion and describing the highlights of Justice Bosson’s career.
As a book nerd, I am happy to learn of Justice Bosson’s “old-fashioned but fervent preference for books over online searches.” There is just no substitute for real books.
Thank you, Justice Bosson, for your service to the people of New Mexico, and best wishes for a happy retirement!
Today the Tenth Circuit issued its decision in United States v. Thomas Rodella, affirming the convictions of the former Rio Arriba County (N.M.) sheriff arising from a road rage incident in which he threatened a young motorist with a firearm. Sheriff Rodella was convicted of violating the young man’s right to be free from unreasonable force and seizure, and for using a dangerous weapon while doing so, and was sentenced to just over 10 years in prison.
Judge Briscoe’s opinion rejects Rodella’s claims: (1) that the evidence was insufficient to support his conviction for violating the victim’s right to be free from unreasonable force and seizure; (2) that the jury should have been instructed that the victim suffered more than de minimis physical or emotional injury; (3) that the trial court improperly admitted evidence of other incidents in which Sheriff Rodella allegedly abused his power; (4) that the prosecutor committed misconduct by arguing that the other incidents were evidence of Rodella’s alleged propensity for violence; and (5) that the trial court improperly admitted evidence of Rodella’s training in the pursuit of a suspect’s vehicle.
Due to an apparent shortage of qualified physicians in southern and eastern New Mexico, many residents of our state must seek medical care in Texas (usually in El Paso, Amarillo, and Lubbock).
Earlier this year, the Court of Appeals held, in Montaño v. Frezza, that a physician, Dr. Eldo Frezza, who is employed by a state-owned hospital in Lubbock, Texas, could be sued in New Mexico. The Court further held that Dr. Frezza was not entitled to full sovereign immunity protection that Texas law provides to its state employees. The case could have implications for Texas physicians who work for private employers, because Texas apparently law provides greater liability protections to Texas physicians in malpractice lawsuits than are provided by New Mexico law.
The New Mexico Supreme Court has agreed to review the case.
According to this report at Walter Olson’s Overlawyered blog, some Texas physicians are considering not accepting New Mexico residents as patients. Mr. Olson links to this report by Josie Ortegon at El Paso’s KVIA news, to this website with an amicus brief filed by the New Mexico Medical Society and other organizations, and to this article by Samuel Walker of the McGinn, Carpenter, Montoya, and Love law firm, which presents a pro-plaintiff view of the arguments.
Russell Contreras has this report about this morning’s oral argument before the New Mexico Supreme Court in the assisted suicide case, Morris v. Brandenburg.
