U.S. Chamber of Commerce files amicus brief in 10th Circuit arguing against excessive punitive damages

by Emil J. Kiehne Posted on May 4, 2015

According to this post from the Mayer Brown law firm’s terrific Punitive Damages Blog, the U.S. Chamber of Commerce has filed an amicus curiae brief in Lompe v. Sunridge Partners, LLC, arguing that a federal district court in Wyoming incorrectly applied the U.S. Supreme Court’s principles for keeping punitive damages awards within constitutional limits.

The brief identifies errors that are all too often committed by trial courts in evaluating whether a punitive damages award is unconstitutionally excessive: (1) the tendency to defer to the jury’s view of the case, or even to findings the jury did not make, although the Supreme Court has called for “exacting,” de novo review; (2) incorrectly applying the State Farm ratio guidepost by considering the entire compensatory damages award as the denominator, although part of it was attributable to the plaintiff’s own negligence; (3) by refusing to reduce the punitive damages award to a 1:1 ratio with compensatory damages, although the compensatory award in Lompe ($2.7 million against the defendants) was unquestionably a substantial award.

This is an area of the law where New Mexico’s trial and appellate courts can improve, and I hope that some of our judges will take the time to read this excellent amicus brief.

Posted in News, Tenth Circuit | Tagged , , | Comments Off on U.S. Chamber of Commerce files amicus brief in 10th Circuit arguing against excessive punitive damages

I’ve joined the board of the New Mexico Foundation for Open Government

by Emil J. Kiehne Posted on May 4, 2015

I’m pleased to announce that I’ve been elected to the board of the New Mexico Foundation for Open Government.

The Foundation is a non-profit organization dedicated to helping the public understand and exercise its rights under the First Amendment and under New Mexico’s “sunshine” laws — i.e. the Inspection of Public Records Act, the Open Meetings Act, and the Arrest Record Information Act.

I look forward to helping promote the cause of open and accountable government in New Mexico.

 

Posted in News | Tagged | Comments Off on I’ve joined the board of the New Mexico Foundation for Open Government

10th Circuit: Appellant must actually explain how the trial court erred to win on appeal

by Emil J. Kiehne Posted on April 30, 2015

“The first task of an appellant is to explain to us why the district court’s decision was wrong.”

So begin’s today’s opinion in Nixon v. City and County of Denver, in which the Tenth Circuit again had the unfortunate task of explaining how not to handle an appeal. (For an earlier lesson along these lines, see last month’s post on this case).

Ricky Nixon was a Denver police officer who was accused of using excessive force, and fired for allegedly lying about the incident. Nixon sued, claiming among other things that his firing was in retaliation for his decision to speak out on other matters of public concern, but the district court dismissed his claims.

The Tenth Circuit affirmed because Nixon’s lawyer apparently failed to address the district court’s reasons for dismissing his client’s claims.

As Judge Hartz explained, “It is unfortunately commonplace that an issue on appeal is waived because it is not adequately developed in a party’s brief. This, however, is a (fortunately rare) case in which no pertinent issue is adequately developed.”

I expect that the lawyer’s discussion with the client about this result won’t be a pleasant one.

Posted in Appellate Practice, Tenth Circuit | Tagged , | 1 Comment

Former NM public officials can be sued for whistleblower violations

by Emil J. Kiehne Posted on April 24, 2015

In 2010, New Mexico Secretary of State Mary Herrera fired two employees of her office, James Flores and Manny Vildasol, after they reported to the FBI what they considered to be criminal activity by Herrera. At the time, she was running for re-election, and the firings garnered her some unfavorable media attention (see, for example, here and here). Herrera ultimately lost her re-election bid.

The employees sued Herrera under the Whistleblower Protection Act, but the trial court dismissed Flores’ lawsuit because: (1) it lacked “subject-matter jurisdiction” since Herrera was no longer the Secretary of State at the time Flores filed his lawsuit; and (2) because it found that Flores could not recover against Herrera in her individual capacity.

In Flores v. Herrera (April 7, 2015) the Court of Appeals reversed. Judge Sutin’s opinion is based on the following salient points: Continue reading →

Posted in New Mexico Court of Appeals, Opinions and Analysis | Tagged , , | Comments Off on Former NM public officials can be sued for whistleblower violations

Learn about Magna Carta at Albuquerque’s Law Day Luncheon on May 1

by Emil J. Kiehne Posted on April 22, 2015

The Albuquerque Bar Association will be hosting its annual Law Day Luncheon at the Hyatt Regency Downtown on Friday, May 1, at noon.

Since 2015 marks the 800th anniversary of Magna Carta, special guest Prof. Renee Lettow Lerner of George Washington University Law School will be presenting a talk called “Ancient Liberties: Magna Carta and Trial by Jury in America.”

You can register for the luncheon here.

Posted in Events, News | Tagged , | Comments Off on Learn about Magna Carta at Albuquerque’s Law Day Luncheon on May 1

Erwin Chemerinsky to speak in Santa Fe on April 30

by Emil J. Kiehne Posted on April 17, 2015

Dean Erwin Chemerinsky will be giving a talk called “An Amazing Time in the Supreme Court” on Thursday, April 30 at noon at the La Fonda Hotel in Santa Fe.

The event is hosted by the New Mexico Chapter of the Federal Bar Association. You can register for it here.

I have heard Dean Chemerinsky speak about the Supreme Court several times. He is a noted scholar who is most well-known for his treatises on federal jurisdiction and constitutional law. His most recent book is The Case Against the Supreme Court, which was published last September.

Posted in Events | Tagged | Comments Off on Erwin Chemerinsky to speak in Santa Fe on April 30

Copper Rule affirmed by New Mexico Court of Appeals

by Emil J. Kiehne Posted on April 9, 2015

Yesterday, in an opinion by Judge Jonathan Sutin, the New Mexico Court of Appeals affirmed the Water Quality Control Commission’s adoption of regulations governing the protection of groundwater at copper mines. See Gila Resources Information Project v. N.M. Water Quality Control Commission.

These regulations, popularly known as the “Copper Rule,” have attracted considerable attention in the news media. I won’t comment on the merits, however, since I represent several parties in this ongoing matter.

UPDATE (April 9, 2015): The Albuquerque Journal has this story about the opinion.

Posted in New Mexico Court of Appeals, News, Opinions and Analysis | Tagged , , , , , | Comments Off on Copper Rule affirmed by New Mexico Court of Appeals

10th Circuit explains how not to handle an appeal

by Emil J. Kiehne Posted on March 27, 2015

Yesterday the Tenth Circuit issued a non-precedential order, written by Judge Neil Gorsuch, dismissing the appeal in Alejandre-Gallegos v. Holder, an immigration case.

The order describes the remarkable conduct of appellant’s counsel, who apparently did not cite the record or any legal authority to support his client’s claims, and committed other sundry errors.

Concerned about this performance, the Tenth Circuit looked at other appeals the lawyer had handled, and discovered a pattern of similar conduct. The Court then ordered the clerk’s office to open a disciplinary proceeding against the lawyer.

David Lat discusses the case in more detail at Above the Law.

 

Posted in Opinions and Analysis, Tenth Circuit | Tagged , | 1 Comment

Jess Bravin to speak at UNM Law School on April 2

by Emil J. Kiehne Posted on March 23, 2015

Jess Bravin, the Wall Street Journal’s Supreme Court correspondent, will deliver the John Field Simms, Sr. Memorial Lecture at UNM Law School in Albuquerque on Thursday, April 2, beginning at 4:30 p.m. (The lecture is named for a founding member of my law firm, who later became a justice of the New Mexico Supreme Court).

Mr. Bravin will speak about his acclaimed book, The Terror Courts: Rough Justice at Guantanamo Bay.

Advance registration for this event is required.

 

 

Posted in Events, News | Tagged | Comments Off on Jess Bravin to speak at UNM Law School on April 2

NM Supreme Court denies emergency petition to fill state Senate vacancy

by Emil J. Kiehne Posted on March 19, 2015

Due to the recent resignation of state Senator Phil Griego, there has been a push to replace him before the current legislative session comes to an end.

Senator Griego represented District 39, a large district that includes parts of six counties. Each of those county commissions has the right to recommend a replacement to Governor Martinez. Because Senator Griego was a Democrat, Governor Martinez would presumably like to quickly appoint a Republican to fill the seat.

Earlier this week, a petition was filed with the New Mexico Supreme Court asking for a writ of mandamus to compel several county commissions to hold emergency meetings to nominate replacements. (Hat tip to Joe Monahan for the link to the petition).

Today, the Supreme Court denied the petition without explanation, according to this report by Matthew Reichbach of the New Mexico Political Report.

Posted in New Mexico Supreme Court, News | Tagged , | Comments Off on NM Supreme Court denies emergency petition to fill state Senate vacancy