In Miller v. Bank of America, N.A. (June 15, 2015), the New Mexico Supreme Court has held that trustees who engage in self-dealing transactions are required both to pay restoration damages (for any losses sustained) and to disgorge any profits obtained.
Justice Daniels’ opinion rejects the notion that restoration and disgorgement are mutually exclusive remedies, and states that a beneficiary’s recovery is not limited to his or her losses.
On Monday, in New Mexico Building & Construction Trades Council v. Dean, the New Mexico Supreme Court granted a writ of mandamus against the Labor Relations Division of the state’s Department of Workforce Solutions, requiring it to set prevailing wage rates and prevailing fringe benefit rates for workers on public works projects consistent with those set forth in collective bargaining agreements in each locality.
Justice Maes’s opinion notes that the Legislature amended the Public Works Minimum Wage Act in 2009 to require the Labor Relations Division to do so, but that it still had not done so. The Court rejected the government’s argument that the statute allows it to consider factors other than collective bargaining agreements in setting the prevailing rates.
For press coverage of this decision, including commentary from the unions and the state on what this decision means, see this report by Susan Montoya Bryan of KRQE News 13.
Peter Krumholz of the Rocky Mountain Appellate Blog has this post about an interesting Second Amendment case recently briefed in the Tenth Circuit.
The appellants are challenging a Colorado statute that (a) bans magazines with more than 15 rounds and (b) “requires, among other things, that if a law-abiding citizen wishes to loan a firearm to a friend, they must first go to a gun store together for a background check; when the firearm is returned, they must repeat the process.” The district court rejected their Second Amendment challenge.
Apparently, this will be the Tenth Circuit’s first opportunity to consider a Second Amendment challenge to generally applicable gun laws since the Supreme Court’s landmark decision in District of Columbia v. Heller.
We’ll be watching this appeal with great interest…
The New Mexico Constitution provides greater protection to citizens than the Fourth Amendment when it comes to searches and seizures. For example, in State v. Cardenas-Alvarez, the New Mexico Supreme Court held that at interior border control checkpoints (such as those found in southern New Mexico), an official must have reasonable suspicion to detain a motorist once basic questions about citizenship have been answered.
The Supreme Court recently held, however, in State v. Aide Zamora Sanchez, that the New Mexico Constitution does not provide any greater protection than the Fourth Amendment at the international border with Mexico. Thus, evidence seized under the federal border search doctrine may be used in criminal prosecutions in New Mexico state courts.
Justice Chavez’s opinion distinguished the Court’s earlier decision in Cardenas-Alvarez, noting that interior border checkpoints require all motorists to stop, whether or not they’ve been outside the country, and thus there needs to be some protection for New Mexicoans who are lawfully going about their business on New Mexico’s highways.
By contrast, “traffic passing through international border checkpoints do not contain domestic travelers who have heightened expectations of privacy that are idiosyncratic to the state in which they are traveling; all international travleers have a lessened expectation of privacy because they present themselves at the border for entry into the United States.”
Justice Richard Bosson has announced that he will be retiring this November. He made this announcement towards the end of last week at both the Judicial Conclave and the brown-bag lunch sponsored by the Appellate Practice Section of the State Bar.
Justice Bosson has had a long and distinguished legal career in New Mexico. He graduated from the Georgetown University Law Center in 1969. He worked for the Mexican American Legal Defense and Education Fund and with the Legal Aid Society in Albuquerque in the early 1970s, and spent a year on a teaching fellowship at the Universidad de los Andes in Bogota, Colombia. During this time period he co-authored an article with Steven K. Sanders, “The Writ of Prohibition in New Mexico,” which is essential reading for those interested in extraordinary writ practice before the Supreme Court.
After that he served in the Consumer Protection Division of the New Mexico Attorney General’s Office, and then went into private practice until 1994, when he was appointed to the New Mexico Court of Appeals. He served as an appellate judge on that Court until 2002, when he was elected to the New Mexico Supreme Court.
We wish the very best to Justice Bosson in his retirement, and good luck to his successor, who will have some big shoes to fill.
Todd Cahill was sued by his former employer. Mr. Cahill removed the case to federal district court, argued that the lawsuit was subject to an arbitration agreement, and asked the lawsuit be stayed so that the dispute could be arbitrated.
For reasons that are unclear, Mr. Cahill refused to pay the arbitration fees, so the district court lifted the stay, thus allowing the lawsuit against him to proceed in court. The Tenth Circuit affirmed the trial court’s decision in Pre-Paid Legal Services, Inc. v. Cahill (the opinion is by Judge Scott Matheson).
This seems correct to me, because otherwise a party could obtain an order sending a case to arbitration, and then obstruct the case’s progress by refusing to pay the arbitration fees.
Anyone who’s used Uber knows why it is so highly popular — it’s usually cheaper than using a taxi, you can summon a ride easily by using the Uber app, you’re given an estimate of the cost (no more “broken meters”), and your ride is automatically charged to your credit card.
Recently, however, the New Mexico Public Regulation Commission adopted onerous and burdensome rules governing ridesharing services, causing one of them, Lyft, to shut down in New Mexico.
Now, according to this story by Steve Terrell in the Santa Fe New Mexican, Uber is appealing the new regulations to the New Mexico Supreme Court. Taxi cab companies are also appealing, arguing that the regulations are too lenient.
I haven’t studied the legal issues here, and it may well be that the regulations should be upheld under the current state of the law. It’s possible that the taxi companies have a decent, or even meritorious, legal argument.
But from a public policy perspective, our laws ought to give Uber and similar companies the maximum freedom to operate and to compete with the taxi companies. If taxi cab companies don’t like Uber, they should focus on providing better prices and better service to customers, rather than attempting to stamp out competition to benefit themselves at the public’s expense.
So here’s hoping that there’s a legally meritorious way for our Supreme Court to rule in Uber’s favor.
We should also consider what the anti-business attitude that pervades so many of our laws and regulations means for New Mexico. Why do businesses and investors seem to prefer states like Arizona, Texas, and Colorado over New Mexico? You don’t have to look very far to find the answer. And if our lawmakers and regulatory agencies continue to express a narrow-minded hostility to innovation, New Mexico’s economy will continue to suffer.
According to this report by Eriq Gardner in the Hollywood Reporter, the Conan Doyle Estate has filed a lawsuit in New Mexico’s federal district court against Miramax, author Mitch Cullin, and others for alleged copyright violations in the upcoming film Mr. Holmes, which stars Gandalf … I mean Sir Ian McKellen … as Sherlock Holmes. (The story also helpfully includes a copy of the complaint).
The Conan Doyle Estate’s quest to protect its interest in the Sherlock Holmes stories led to headlines last year, when the Seventh Circuit, in an opinion by Judge Richard Posner, rejected the Estate’s argument that all of the stories are protected by copyright law (only the last 10 are).
In a later ruling awarding attorney’s fees against the Estate, Judge Posner also criticized the Estate’s business strategy, which he said was to “charge a modest license fee for which there is no legal basis, in the hope that the ‘rational’ writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand.” The Seventh Circuit called this “a disreputable business practice–a form of extortion.”
I don’t know what the legal merits of the Estate’s current copyright claims are, but my personal, non-legal sympathies are with the defendants. It seems wrong for the Conan Doyle heirs to demand a share of the creative works of others, to which they appear to have contributed absolutely nothing, merely because they have the good fortune of being related to a genius like Sir Arthur Conan Doyle.
Now that the game is afoot, I wish Miramax, Mr. Cullin, and others the best of luck in solving this case.
Peter W. Martin, the Jane M. G. Foster Professor of Law (Emeritus) at Cornell Law School, has a blog which is a law nerd’s delight.
The blog is called Citing Legally: Occasional observations concerning the citation of legal authorities by lawyers and judges, and contains posts about all sorts of citation-related subjects, such as the proper placement of citations in briefs, vendor-neutral citation, the origins of the Bluebook, and so forth.
Citing Legally came to my attention because Professor Martin has written an interesting, detailed, and comprehensive post about New Mexico’s case citation system, which you can find here.
In New Mexico, each appellate decision is assigned a cite that identifies the case by year, court, and decision number, and each paragraph in the decision is assigned a number. So, for example, if you wanted to cite a particular sentence in Paragraph 10 of Potter v. Pierce, a case decided by the New Mexico Supreme Court earlier this year, you would cite it as 2015-NMSC-002, ¶ 10. In 2013, the rule was changed to assign case and paragraph numbers to all New Mexico cases, from 1852 to the present. I love this system, because it makes it very easy to find and read the exact portions of cases that are being cited.
If you, like me, are a law nerd, then this terrific blog belongs on your reading list.
In New Mexico, one can easily pass back and forth between Indian tribal lands and non-tribal lands, often without knowing it. Under federal law, Indian tribal police officers have extremely limited authority to enforce state and tribal criminal laws against non-Indians. Thus, many New Mexico counties will commission tribal police officers to act as county sheriff’s deputies to enable them to enforce the laws against non-Indians who may be present on Indian lands.
Last week, the New Mexico Supreme Court issued its decision in Loya v. Gutierrez, which considered whether a county has an obligation to defend and indemnify a tribal police officer who is sued in tort for arresting a non-Indian in his capacity as a county deputy sheriff.
The case arose when the non-Indian plaintiff, Jose Loya, was arrested by Officer Glen Gutierrez of the Pojoaque Pueblo police department for reckless driving. Officer Gutierrez had the power to arrest Loya because Santa Fe County had commissioned him as a deputy sheriff. When Loya brought a Section 1983 lawsuit against Officer Gutierrez, the County declined to provide a defense for him, arguing primarily that he was not a County employee. Loya brought a claim against the County, which the lower courts rejected.
As Justice Richard Bosson explained, the New Mexico Tort Claims Act obligates a governmental body to provide a defense and indemnity not only for employees on the County’s payroll, but also for any “public employee,” which the statute defines as any “person[ ] acting on behalf of or in service of a governmental entity in any official capactiy, whether with or without compensation.”
Justice Bosson’s opinion also contains an interesting discussion of the common-law powers of sheriffs and deputy sheriffs, explains how New Mexico governments and Indian tribes have shared law enforcement duties, and rejects the County’s counter-arguments based on the negative public policy consequences that would follow from them.
If you’re interested in law enforcement and New Mexico history, you should put this opinion on your reading list.
