Judge Cynthia Fry to retire at the end of 2015

by Emil J. Kiehne Posted on September 10, 2015

The September 9 issue of the New Mexico Bar Bulletin contains an announcement (at page 4) that Judge Cynthia A. Fry of the New Mexico Court of Appeals will be retiring effective December 31, 2015.

Judge Fry has had a long and distinguished legal career. She graduated from UNM Law School in 1981, and practiced at two Albuquerque law firms until 1990, when she went into solo practice. Judge Fry was an appellate lawyer before being elected to the Court of Appeals in 2000.

The Bar Bulletin announcement says that the Judicial Nominating Commission will meet in “late January 2016” to interview applicants to replace Judge Fry (when the application deadline is released I will post information here). The Commission will pass on one or more names to Governor Susana Martinez, who will appoint one of them to take Judge Fry’s seat. The newly-appoined judge will have to run in a partisan race during the 2016 general election.

Thanks very much to Judge Fry for her long years of service to New Mexico!

 

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NM Court of Appeals holds nursing home corporate veil should be pierced

by Emil J. Kiehne Posted on September 9, 2015

In Morrissey v. Krystopowicz, the Court of Appeals has held that where a plaintiff seeks to pierce the corporate veil, the causation-of-injury element can be satisfied by proof that an abuse of the corporate form has caused the plaintiff to be unable to recover for an underlying tort injury. The plaintiff need not show any causal connection between abuse of the corporate form and the tort itself.

In New Mexico, three elements are required to pierce the corporate veil. First, the subsidiary must be operated as a mere “instrumentality” of the dominant party. Second, the dominant party must have some “moral culpability,” “such as use of the subsidiary to perpetuate a fraud.” And third, there must be proximate causation of injury to the plaintiff.

In this case, the plaintiff sued several nursing home entities for the wrongful death of a nursing home resident and related claims. The nursing home entities failed to answer, and a default judgment was entered against them, and the district court ultimately awarded the plaintiff $4.8 million in damages.

Apparently unable to recover anything from the undercapitalized nursing home entities, the plaintiff sought to pierce the corporate veil to recover from an individual owner of those entities. The district court found that the owner had abused the corporate form, and thus the first two elements were established.

But the district court denied the plaintiff’s claim because there was no evidence that the owner’s abuse of the corporate form did anything to cause the wrongful death of the nursing home resident. Continue reading →

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NM Supreme Court to review assisted suicide case

by Emil J. Kiehne Posted on September 8, 2015

The New Mexico Supreme Court has granted certiorari in Morris v. Brandenburg, the case in which the plaintiffs are claiming that a right to assistance in committing suicide exists under the New Mexico Constitution. Last month, the Court of Appeals held, in a 2-1 decision, that the state constitution creates no such right.

The Supreme Court has established an unusually accelerated briefing schedule. Supplemental briefs from the parties are due on Wednesday, September 23, and the parties may respond to each other’s briefs by Monday, October 19. Oral argument will be heard on Monday, October 26.

The order does not address amicus briefs, but the Supreme Court is usually very liberal in allowing amicus briefs to be filed, and would likely appreciate hearing from amici in this important case. (Disclosure: I represented some of our state legislators in filing an amicus curiae brief in the Court of Appeals).

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Have lunch with Justice Chávez on September 25

by Emil J. Kiehne Posted on August 26, 2015

The Appellate Practice Section and Young Lawyers Division of the State Bar will be hosting a brown bag lunch with Justice Edward Chávez of the New Mexico Supreme Court at noon on Friday, September 25, 2015, at the State Bar Center in Albuquerque.

Justice Chávez was an accomplished trial lawyer before joining the Supreme Court in 2003, and is known for his incisive questions at oral argument, and this lunch is certain to be interesting.

If you’d like to attend, please RSVP by e-mail to [email protected].

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NM Supreme Court rejects former judge’s argument that she wasn’t up for retention in 2014

by Emil J. Kiehne Posted on August 20, 2015

After the voters declined to retain her in the 2014 general election, Judge Sheri Raphaelson of the First Judicial District Court took the position that she should not have been subjected to a retention election in the first place.

Judge Raphaelson took the bench in 2009 after being nominated to fill the seat vacated by now-Court of Appeals Judge Timothy Garcia. Judge Garcia’s term began in 2009 and would have expired at the end of 2014 had he remained on the district court.

The New Mexico Constitution provides that all appointed judges serve until the next general election, which is a partisan election. Thus, in 2010, Judge Raphaelson was on the ballot and survived a partisan election.

In Judge Raphaelson’s view, she should not have been up for retention until the 2016 election, because Article VI, Section 33 of the New Mexico Constitution provides that “each district judge shall be subject to retention or rejection in like manner at the general election every sixth year.”

Towards the end of last year, the New Mexico Supreme Court disagreed with her and removed her from office, but today the Court issued its opinion in State ex rel. King  v. Raphaelson to explain its reasoning.

According to Justice Bosson’s opinion, Article VI, Section 33 must be read in conjunction with Article VI, Section 35, which provides that “Any person appointed [to a judgeship] shall serve until the next general election. That person’s successor shall be chosen at such election and shall hold the office until the expiration of the original term.” (emphasis added).

The “original term” was Judge Garcia’s, so this meant that Judge Raphaelson was properly on the ballot in 2014. Moreover, the longstanding practice in New Mexico was contrary to Judge Raphaelson’s interpretation.

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10th Circuit affirms convictions in the NM Secretary of State scandal, but orders resentencing

by Emil J. Kiehne Posted on August 20, 2015

Last month, as I reported here, the Tenth Circuit affirmed the tax evasion convictions of Elizabeth Kupfer, who was a participant in the scandal involving the New Mexico Secretary of State’s office, which broke in 2010.

Yesterday, it was her husband’s turn. A federal jury convicted Joseph Kupfer of tax evasion, and another jury convicted him of stealing and conspiracy to steal government property.

In an opinion by Judge Bacharach, the Tenth Circuit affirmed all of Mr. Kupfer’s convictions, but remanded for resentencing. See United States v. Joseph Kupfer.

Some of Mr. Kupfer’s arguments were the same as those his wife raised in her appeal, and the Court rejected them on the same grounds. Mr. Kupfer also claimed that evidence of transactions was improperly admitted because there was no allegation that he committed any misconduct in them, but the Court held that those events provided necessary context for the jury to understand Mr. Kupfer’s participation in the criminal acts.

The Court did agree with Mr. Kupfer’s challenge to his sentence. As with Mrs. Kupfer, the Court held that it was improper to increase the offense level for willfully obstructing the investigation, when all that Mr. Kupfer did was fail to tell the investigators about his own misconduct. In addition, the Tenth Circuit held that the district court applied the wrong offense guideline.

The case will be remanded for resentencing, and I presume Mr. Kupfer will receive a reduced sentence.

 

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NM Supreme Court upholds city’s rule barring its employees from seeking or holding elective office

by Emil J. Kiehne Posted on August 13, 2015

Today the New Mexico Supreme Court issued its ruling in Kane v. City of Albuquerque, upholding provisions of the City Charter and the City Personnel Rules which prohibit city employees from seeking or holding elective office.

Emily Kane, a captain with the Albuquerque Fire Department, sought and received the Democratic Party’s nomination for a seat in the New Mexico House of Representatives in 2012, and ultimately won the seat. The City objected, and Kane then filed a lawsuit challenging the City’s prohibition on constitutional and statutory grounds. The District Court ruled in her favor. For more background on the case, see this story by Milan Simonich in the Santa Fe New Mexican.

Kane was defeated in the 2014 election by Republican Sarah Maestas Barnes, but the litigation proceeded to the Supreme Court after the Court of Appeals certified the case.

In an opinion by Justice Chavez, the Court rejected Kane’s argument that the City’s prohibition violates the First Amendment “because they regulate conflicts of interest, and are therefore rationally related to the legitimate government purpose of promoting administrative efficiency.” Justice Chavez also rejected her argument that the City’s prohibition violated the New Mexico Constitution by adding qualifications to those needed to seek elective office; the City’s rules only imposed conditions of employment. The Court also held that the City had statutory authority to enact the prohibition.

Justice Bosson filed a specially concurring opinion in which he agreed that the New Mexico Constitution does not prohibit the City’s rule, but questions whether the rule is consistent with the spirit of our state constitution’s creation of a citizen legislature, which envisioned that ordinary citizens from all walks of life would serve in the legislature, and which is not well-served by excluding an entire category of citizens from such service.

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Register now for the 2015 New Mexico Appellate Practice Institute

by Emil J. Kiehne Posted on August 13, 2015

The 26th Annual New Mexico Appellate Practice Institute will be held on Friday, September 11, 2015 at the State Bar Center in Albuquerque.

The full agenda has now been released, and highlights include:

1.  A keynote address by Judge Jimmie Reyna of the Federal Circuit.

2.  A look at practice before the New Mexico Supreme Court, by Justice Richard Bosson and Joey Moya, Chief Clerk of the Supreme Court.

3.  A presentation on appeals from bench trials by Judge Linda Vanzi and appellate lawyer Alice Lorenz.

4. And an interesting-sounding presentation entitled “Remand Nightmares–Be Careful What You Ask For” by Judge Michael Bustamante and appellate lawyer Thomas Bird.

You can register for this highly-recommended CLE seminar here.

 

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New Mexico Court of Appeals rejects right to assisted suicide

by Emil J. Kiehne Posted on August 11, 2015

Today, the New Mexico Court of Appeals issued its long-awaited decision in Morris v. Brandenburg, and has held that the New Mexico Constitution creates no right to assisted suicide.

This ruling is great news. The New Mexico Constitution says nothing whatever about assisted suicide, and whether or not to approve it is quintessentially a legislative matter. Substantively, the practice would threaten the elderly, the poor, and minorities, and would corrupt the medical profession.

Judge Garcia wrote the lead opinion for the Court, which states “We reverse the district court’s ruling that aid in dying [i.e. assisted suicide] is a fundamental liberty interest under the New Mexico Constitution.”

Judge Hanisee wrote an opinion concurring in part, and Judge Vanzi wrote a dissenting opinion.

Together, the opinions run to over 140 pages, so it will take awhile to digest this decision. Because I represent some amici curiae who argued in favor of reversal, I probably will not provide my own detailed analysis of the merits, because I anticipate continuing to participate in this case should the New Mexico Supreme Court decide to hear it.

You can read my previous posts about this case here and here.

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Tenth Circuit holds worker can’t convert early retirement pension to a disability pension

by Emil J. Kiehne Posted on July 30, 2015

For those of you who like ERISA, yesterday the Tenth Circuit decided Martinez v. Plumbers & Pipefitters National Pension Plan, affirming a decision that an employee was not entitled to convert an early retirement pension to a disability pension.

Judge Tymkovich wrote the opinion for a unanimous panel.

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