This morning the New Mexico Supreme Court will hear oral argument in Morris v. Brandenburg, which presents the question whether the New Mexico Constitution creates a right to assisted suicide.
I had hoped to attend, but will not be able to do so. However, I will post links to news stories about today’s argument as soon as they become available.
One thing that I love about being an attorney is that the law is intertwined with history, by which I mean that studying the past helps one to understand the law’s meaning and purposes.
The link between law and history seems especially strong in New Mexico because of our state’s compelling and unique past and culture. In New Mexico, history is never over.
Fortunately, there is an abundance of good reading about our beloved state. If you have never delved into New Mexico’s history and culature, I recommend to you this list of good books compiled by our State Historian, Rick Hendricks. I’ve read some of these titles, and look forward to adding more of these titles to my bedside table.
Jackie Johnson has this story in the Clovis News Journal about yesterday’s visit by Chief Justice Barbara Vigil to students at Eastern New Mexico University in Portales.
In March 2013, the Maresca family — wife, husband, and three children — were returning from a hiking excursion in their red 2004 Ford-150 pickup truck when two Bernalillo County sheriff’s deputies pulled their vehicle over.
The Marescas had not violated any traffic law, but Deputy J. Fuentes had mis-typed their vehicle’s license plate number into the NCIC crime database, causing her to think that their vehicle was stolen. Deputy Fuentes failed to notice that the stolen vehicle was reported to be a four-door Chevrolet Sedan with expired plates, and thus completely different from the Maresca’s pickup truck.
Deputy Fuentes and another officer, Deputy Grundhoffer, ordered the Maresca family members out of the vehicle at gunpoint and ordered them to lie down on the highway. The Marescas allege that sheriff’s deputies pointed guns at their heads, including the children, while they were lying down (the deputies deny that they pointed their loaded weapons at them). The Marescas sued, and the district court granted summary judgment in the defendants’ favor.
In Maresca v. County of Bernalillo, the Tenth Circuit affirmed in part and reversed in part. Judge David Ebel’s opinion explains that Deputy Fuentes had no possible ground for thinking the vehicle was stolen, and thus summary judgment should be granted against her on the wrongful arrest claim, with a remand for a trial on damages. The order granting qualified immunity to Deputy Grundhoffer was affirmed, because he reasonably relied on Deputy Fuentes’ report that the vehicle might be stolen. The excessive force claims were remanded for trial, because there was conflicting evidence about whether the deputies pointed their guns at the Marescas although they were fully compliant with the deputies’ commands.
Joe Monahan asks that question on his blog, New Mexico Politics with Joe Monahan, and sets forth reasons why she could be an attractive candidate for the Republican Party in the 2016 general election.
As a follow-up to yesterday’s post about the New Mexico Supreme Court’s decision in State v. Norman Davis, which held that aerial surveillance by helicopter without a warrant can violate the Fourth Amendment, I thought you might be interested in this commentary on the case by Prof. Eugene Volokh of UCLA Law School at his celebrated blog, the Volokh Conspiracy.
Yesterday, the New Mexico Supreme Court issued its opinion in the closely-watched case of State v. Norman Davis. The case began in 2006, when a police helicopter spotted marijuana plants in a greenhouse owned by Mr. Davis in Taos County. The question presented was whether aerial surveillance constitutes a search requiring a warrant.
Justice Bosson, writing for the majority, held that the warrantless aerial surveillance of Mr. Davis’ property violated the Fourth Amendment, and thus found it unnecessary to decide whether the search also violated the New Mexico Constitution.
Justice Chavez concurred with the result, but he did not agree that the search violated the Fourth Amendment. He would have held that the search violated the New Mexico Constitution.
The Court’s decision to base its holding on the Fourth Amendment creates the possibility of review by the Supreme Court of the United States.
I have previously written about this case here, here, and here.
In my earlier post about this morning’s Judicial Nominating Commission meeting, I noted that I had to leave at lunch time, so I did not get to see who was selected, but according to this story by Scott Sandlin in the Albuquerque Journal, the Commission has forwarded the following names to Governor Martinez for her consideration:
1. Judge Gary Clingman of the Fifth Judicial District Court.
2. Judge Judith Nakamura of the Second Judicial District Court.
3. Judge Linda Vanzi of the Court of Appeals.
4. Chief Judge Michael Vigil of the Court of Appeals.
Governor Martinez will have 30 days to make her decision.
UPDATE (October 20, 2015): You can read an updated version of Scott Sandlin’s story at this link, which contains some detail about the Commission’s interviews with Judge Clingman and Judge Vanzi.
This morning I had the pleasure of attending the New Mexico Judicial Nominating Commission’s meeting in Santa Fe to interview applicants for the Supreme Court seat that Justice Bosson will vacate at the end of the month.
The meeting started at 9:00 a.m. Members of the Commission were sworn in, and Dean Alfred Mathewson of UNM Law School reported on the Commission’s efforts to notify the public of the vacancy and to solicit qualified applicants.
Before the applicant interviews begin, the public is allowed to comment. Sometimes colleagues or former clients will appear to recommend an applicant, and often no one will comment at all.
Not today. At this morning’s meeting, the Commission heard from Stuart L. Stein, a former estate planning lawyer who was disbarred by the New Mexico Supreme Court in 2007. The Supreme Court then issued an opinion in February 2008 explaining its decision and detailing Mr. Stein’s multiple violations of the Rules of Professional Conduct. See In re Stuart L. Stein.
The Supreme Court found that “[t]here is ample evidence to prove that [Mr. Stein] knowingly and intentionally violated the Rules of Profession Conduct,” (paragraph 62), that Mr. Stein’s insistence that he did nothing wrong, as well as his “attitude” and his “answers to questions” about his conduct, “give cause for alarm,” (paragraph 67), and noted his “denial and refusal to account for his actions.” (paragraph 70).
The Supreme Court’s opinion did, however, leave open the possibility that Mr. Stein might be reinstated someday. See Paragraph 73. However, his comments at this morning’s Commission meeting probably did little to advance his cause. (In fact, I suspect the Stuarts may have a better chance of being restored to the throne of Great Britain, but I digress….)
As the Supreme Court’s opinion explains (paragraph 2), Mr. Stein’s conduct was reported to the Disciplinary Board by then-District Judge Linda Vanzi, now on the Court of Appeals, who is one of today’s applicants. Evidently, Mr. Stein has not forgotten this, since he used his public comment time this morning to repeatedly impugn Judge Vanzi’s integrity, and to accuse her of trampling his due process rights during the case that ultimately led to his disbarment. No contrition here.
At first I was shocked and angered by what he was saying. I was also saddened, because when people impugn a judge’s integrity, the judge usually cannot actively defend himself or herself. And accusations like this, even if completely unfounded, can leave the public with lingering questions or doubts about a judge’s integrity.
Well, I’m here to tell you there should be no lingering doubts whatsoever. I was not involved in the case that led to Mr. Stein’s disbarment, and have no personal knowledge of it. However, I appeared before Judge Vanzi multiple times when she was a district judge, and in several appeals since she became an appellate judge. Sometimes she has decided cases in my clients’ favor, and sometimes not. I agree with some of her appellate opinions, and disagree with some.
But I have never once doubted, and don’t see how anyone could doubt, that she is a person of integrity who works hard and does her best to decide cases impartially and in conformity with the law. Mr. Stein would do well to emulate her example.
Well, on to the interviews… Continue reading
The Santa Fe New Mexican has this story about the eight judges and lawyers who applied for the upcoming vacancy on the New Mexico Supreme Court by yesterday’s deadline.
The New Mexico Judicial Nominating Commission will interview the applicants on Monday, October 19, at the Supreme Court Building in Santa Fe, starting at 9:00 a.m. The meeting is open to the public. You can see who’s on the Nominating Commission at this link.
Here is a list of the applicants in alphabetical order (if you know of any other interesting facts about these applicants, please drop me an e-mail):
1. Judge Gary L. Clingman of the Fifth Judicial District Court, which covers Lea, Eddy, and Chaves counties in southeastern New Mexico. He has served on that court since 1997. He obtained his undergraduate degree at the University of Texas, and his law degree from Texas Tech Law School. I wrote about Judge Clingman and his candidacy here. He is a Republican.
2. Paul W. Grace, a lawyer in Santa Fe. I’m afraid I don’t know anything about Mr. Grace, other than what I’ve read in this story about his application earlier this year for a seat on the First Judicial District Court. Mr. Grace is originally from New York City, graduated from law school in Los Angeles in 1978, and worked on the east coast before practicing law in Santa Fe. I do not know his party affiliation, if any.
3. Diana Martwick is the District Attorney of New Mexico’s Twelfth Judicial District, which encompasses Otero and Lincoln counties. I also don’t know much about Ms. Martick, but this article in Alamogordo Daily News notes that she was victorious in a battle with cancer, so obviously she is someone with perseverance. Ms. Martwick is a Republican.
4. Judge Judith Nakamura of the Second Judicial District Court in Albuquerque. She formerly served as the energetic Chief Judge of the Bernalillo County Metropolitan Court, and has faced personal adversity, overcoming a battle with cancer (see this article in the Wall Street Journal about her). In 2012 she applied for a seat on the Court of Appeals, and I wrote about her application here and here. Governor Martinez appointed Judge Miles Hanisee to that seat, but also appointed Judge Nakamura to her present position on the district court. Judge Nakamura is a Republican.
5. Frank Susman is a lawyer at Spencer Fane, a St. Louis, Missouri law firm. He also resides in Santa Fe. According to his law firm website profile, he has argued six cases in the Supreme Court of the United States. These include arguing in favor of abortion rights in Webster v. Reproductive Health Services, Singleton v. Wulff, Poelker v. Doe, Planned Parenthood Association of Kansas City v. Ashcroft, and Planned Parenthood of Central Missouri v. Danforth. Interestingly, Mr. Susman is not a member of the New Mexico State Bar, but Article VI, Section 8 of the New Mexico Constitution doesn’t require that he be one. The provision requires only that: (1) a justice be at least 35 years old; (2) he or she must have been in the “actual practice of law” for at least 10 years preceding assumption of office; and (3) he or she must have resided in New Mexico “for at least three years immediately preceding” assumption of office. I don’t know his party affiliation.
6. Judge Linda M. Vanzi of the New Mexico Court of Appeals. After graduating from UNM Law School in 1995, she entered private practice until 2004, when Governor Richardson appointed her to the Second Judicial District Court. In 2009 she was appointed to the Court of Appeals. Judge Vanzi has a varied background: born in Pakistan, she graduated from college in 1977, worked as a health and safety engineer, and also owned a small business before trying her hand at the law. Judge Vanzi is a Democrat.
7. Chief Judge Michael E. Vigil of the New Mexico Court of Appeals, who has served there since 2003, when Governor Richardson appointed him to the post. After graduating from Georgetown Law School in 1976, he served as a staff attorney on the Court of Appeals, then moved into private practice where he gained extensive litigation experience in civil and criminal law. Chief Judge Vigil is a Democrat.
8. Hon. Samuel L. Winder, who formerly worked at my law firm, and also served as one of Governor Martinez’s appointees on the Second Judicial District Court, though he did not win his electoral race in 2014. He is a member of the Southern Ute Indian Tribe, received his undergraduate education at Stanford University, his J.D. from UNM Law School, and also previously worked as a prosecutor in the U.S. Attorney’s Office. He is a Republican.
UPDATE (Oct. 13, 2015): Does anyone know whether there has been a Native American justice on the New Mexico Supreme Court? I’m just wondering whether former Judge Winder would be the first Native American justice on the Court if he were appointed. I’ve also been informed that he is half African-American, and I’m pretty confident he would be the first African-American justice.
