New Mexico Law Review publishes issue dedicated to “Breaking Bad”

by Emil J. Kiehne Posted on May 20, 2015

Chief Justice John Roberts has criticized law reviews for their tendency to publish boring, theoretically-focused articles that have little relevance to the practice of law.

As if in answer to the good Chief Justice’s criticisms, the New Mexico Law Review has published an issue with articles that lawyers and judges might actually want to read — the latest issue is entirely dedicated to the television show “Breaking Bad.”

The law school’s press release summarizing the contents of the issue is here, and you can read the articles here. The Wall Street Journal’s coverage of this issue is here.

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Have lunch with Justice Richard Bosson

by Emil J. Kiehne Posted on May 20, 2015

As part of its series of lunches with New Mexico’s appellate judges, the Appellate Practice Section of the New Mexico State Bar will be sponsoring a brown-bag lunch with Justice Richard C. Bosson at the State Bar Center on Friday, June 5, at 12:30 p.m.

To register for this event, please send an e-mail to [email protected]

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Check out the (relatively) new appellate blog, “I Object!”

by Emil J. Kiehne Posted on May 18, 2015

I recently learned of the very helpful I Object! A Blog on Preservation of Error, which was started in October 2014 by the Florida law firm of Carlton Fields Jorden Burt.

As the name implies, the blog addresses the finer points of error preservation, and although I Object! naturally focuses on appellate decisions in Florida and the Eleventh Circuit, the matters addressed are almost always generally applicable.

It’s worth checking out.

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Agency’s failure to review record was abuse of discretion, says NM Court of Appeals

by Emil J. Kiehne Posted on May 15, 2015

Patricia Vigil, a state government employee, claimed she was disabled as a result of her work. A hearing officer of the Public Employees Retirement Board conducted a hearing, concluded she was disabled, and found that no pre-existing condition had significantly contributed to her disability.

This last finding was important, because under the Public Employees Retirement Act, disability benefits would have been denied if a pre-existing condition substantially contributed to Ms. Vigil’s disability.

The Board, however, reversed the decision, but without reviewing the transcript of the hearing.

Not surprisingly, the Court of Appeals held that the Board’s decision, made without reviewing all of the evidence, was arbitrary and capricious. The Court also looked at the record, found that it did not support the Board’s decision, and remanded to the Board with instructions to implement the hearing officer’s decision. In other words, the Court didn’t give the Board a second chance to get it right.

The decision is Vigil v. Public Employees Retirement Board (May 4, 2015), written by Judge Cynthia Fry.

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NM Court of Appeals: 10.5 months was sufficient time to file medical malpractice lawsuit

by Emil J. Kiehne Posted on May 13, 2015

The New Mexico Medical Malpractice Act creates a statute of repose, not a statute of limitations. This means that a medical negligence lawsuit against a qualified healthcare provider must be filed within three years of the malpractice, regardless of whether the patient has discovered the malpractice.

The New Mexico Supreme Court, however, has held that where a patient discovers the injury within the three-year period, the due process clause of the New Mexico Constitution requires that the patient be given a sufficient time in which to file suit. The Supreme Court has held that a patient who discovered an injury only 85 days before the statute of repose had a constitutionally insufficient time to file suit, but in another case that 18 months was sufficient.

In this case, Sara Cahn alleged that the defendant, Dr. Berryman, negligently failed to inform her of an ultrasound finding of a “complex mass” on one of her ovaries. Over two years later, she discovered that this mass was ovarian cancer. At that time, Ms. Cahn had 10.5 months left to sue Dr. Berryman.

But Ms. Cahn did not remember Dr. Berryman’s name, and her efforts (and those of her attorney) to discover his name were unsuccessful before the three-year deadline expired. She later found his name and sued him, but the trial court dismissed her claims based on the statute of repose.

The Court of Appeals, in a majority opinion (Cahn v. Berryman) by Chief Judge Michael Vigil, held that 10.5 months was a constitutionally sufficient time in which to file a lawsuit. The information that could have led Ms. Cahn to timely discover Dr. Berryman’s name was under her control the entire time, and her failure to discover his name did not mean that the time period was unconstitutionally short.

Judge Monica Zamora dissented, arguing that Ms. Cahn faced numerous obstacles which prevented her from discovering Dr. Berryman’s name, despite her diligent efforts to do so. This meant that 10.5 months was too short a period of time.

The lesson here seems pretty clear — if you’re a plaintiff’s lawyer contemplating a medical malpractice action, you’ve got to do everything you can to figure out who all of your client’s medical providers were.

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10th Cir.: Remand order under McCarran-Ferguson Act isn’t appealable

by Emil J. Kiehne Posted on May 11, 2015

When an insurer becomes insolvent, state law (not federal bankruptcy law) controls the proceedings. A Utah insurer became insolvent, and the liquidator sued several affiliate companies in state court to recover funds that the insurer transferred to them before going belly up.

The defendants removed to federal court, asserting that diversity jurisdiction existed. The receiver moved to remand the case to state court under the McCarran-Ferguson Act, which preempts federal laws that interfere with state insurance laws (this is called “reverse preemption”). The receiver argued that the exercise of federal jurisdiction would interfere with the Utah insurance receivership law’s provision allowing recovery from the affiliates.

The argument doesn’t sound very plausible — a federal court should be just as capable as a state court in administering a Utah statute — but the district court agreed with it, and remanded the case.

The affiliates appealed, but in an opinion by Chief Judge Briscoe, the Tenth Circuit held that a remand order that is based on the McCarran-Ferguson is based on a lack of subject matter jurisdiction, and 28 U.S.C. § 1447(d) prohibits appellate courts from exercising jurisdiction over orders based on a purported lack of subject-matter jurisdiction. See Western Insurance Co. v. A&H Insurance, Inc. (April 24, 2015).

Thus, even if the district court’s order were wrong, it can’t be appealed.

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DEA steals $16,000 from man traveling through Albuquerque

by Emil J. Kiehne Posted on May 6, 2015

The front page of today’s Albuquerque Journal carries this disturbing story by Joline Gutierrez Kruger.

According to the story, Joseph Rivers, a 22-year old African-American man from Michigan, was traveling from Michigan to Los Angeles to make a music video.

Rivers was carrying $16,000 in cash with him, but the cash was seized by a DEA agent who apparently suspected it might be connected with illegal narcotics activity. Rivers was left completely destitute while hundreds of miles from home, but fortunately was aided by a Good Samaritan.

The U.S. Government has not charged Rivers with any crime, nor does it have to do so. Under civil asset forfeiture laws, it can simply steal the property, and the burden will be on Rivers to prove that the cash is not connected with any crime.

While Governor Martinez and the Legislature worked together this year to reform New Mexico’s civil asset forfeiture laws, which now require the government to actually prove you guilty of a crime before it takes your stuff. But that won’t have any effect on the federal law enforcement agencies in our midst.

Now, carrying around $16,000 in cash may not be the most prudent thing to do, but it is perfectly legal. That civil asset forfeiture laws allow law enforcement to seize property without proving guilt of any crime is outrageous. Last year the Washington Post ran an excellent, and frightening, investigative series on the abuses that these laws allow.

The DEA should either “put up,” and charge Rivers with a crime if it has the proof, or “shut up” and return the money that it stole. (But don’t hold your breath waiting for the federal government to do the right thing).

And remember, if any law enforcement agent asks for consent to search your person, belongings, automobile or home, you should “Just Say No.”

 

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10th Circuit: New Mexico county’s challenge to election injunction is moot

by Emil J. Kiehne Posted on May 6, 2015

A lot of problems occurred in the City of Rio Rancho during the 2012 general election. Long lines as a result of too few voting locations drove many potential voters to give up in frustration.

Several voters filed a Section 1983 lawsuit against Sandoval County, asking for injunctive relief to require the County to fix the problems that occurred in 2012. The district court granted a preliminary injunction establishing requirements for the 2014 general election. The voters’ request for permanent injunctive relief is still pending. Sandoval County appealed the preliminary injunction.

Yesterday, the Tenth Circuit issued its opinion in Fleming v. Gutierrez, holding that the County’s appeal from the preliminary injunction is moot because the 2014 election is over. As Judge Tymkovich explained, “We cannot turn back the clock and create a world in which the County does not have to administer the 2014 election under the strictures of the injunction.”

The County argued that the Court should consider its appeal under the exception to the mootness doctrine for issues which are capable of repetition yet evading review. Judge Tymkovich explained that the voters’ request for a permanent injunction was based on the same grounds as the preliminary injunction. Because the request for a permanent injunction remained pending, and would be subject to appellate review once a final judgment was entered, the voters’ claims would not evade review.

The Court also rejected the County’s claim that the voters’ request for attorney’s fees related to the preliminary injunction rendered its appeal non-moot, because as a practical matter, if the County prevailed on the request for a permanent injunction, no attorney’s fees would be due to the voters.

The case will now return to the district court for consideration of the merits of the voters’ request for a permanent injunction.

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NM Court of Appeals: Removing screen from window supported breaking-and-entering conviction

by Emil J. Kiehne Posted on May 5, 2015

A defendant removed a window screen at a home, when he noticed a woman inside, and realized that she had spotted him. He then left. Was this breaking and entering?

By a 2-1 vote, the Court of Appeals upheld defendant’s conviction. See State v. Anthony Holt (April 27, 2015).

Judge Michael Bustamante wrote for the majority, upholding the conviction because the defendant’s placement of his fingers into the space between the screen and the window constituted an “unauthorized entry of any … dwelling or other structure.” Judge Roderick Kennedy dissented, because he thought that the statutory language did not cover this sort of situation.

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Possession of “The Girl With the Dragon Tattoo” violated probation, says NM Court of Appeals

by Emil J. Kiehne Posted on May 5, 2015

A defendant was on probation for sex offenses. The conditions of his probation prohibited him from possessing “any sexually oriented or sexually stimulating material.”

The New Mexico Court of Appeals held that defendant violated the conditions of his probation by possessing general release, R-rated films such as The Girl With the Dragon Tattoo, which evidently contain some (horrific-sounding) sexually-related content.

The opinion is State v. Robert Dinapoli, and written by Judge James Wechsler, and provides an interesting window into just how much one’s liberty can be restricted while on probation.

UPDATE (May 6, 2015): Mike Gallagher has this story about this case in today’s Albuquerque Journal.

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