War Powers Clause does not authorize abrogation of state sovereign immunity, holds NM Court of Appeals

by Emil J. Kiehne Posted on March 5, 2014

It’s not often that our state courts have an opportunity to address the War Powers Clause of the Constitution (otherwise known as Article I, Section 8, Clause 11), but the Court of Appeals has held, in Ramirez v. State of N.M. ex rel. Children, Youth and Families Department (March 3, 2014), that while this clause makes Congress supreme in matters of war and peace, it gives Congress no power to authorize a lawsuit against the State of New Mexico.

The plaintiff was employed by New Mexico’s Children, Youth and Families Department (CYFD), but filed a lawsuit alleging that the agency had discriminated against him because of his military service in the national guard, in violation of the Uniformed Services Employment and Reemployment Rights Act (– USERRA).

CYFD asserted a state sovereign immunity defense, and argued that Congress cannot use its Article I powers to abrogate that immunity. Congress enacted — USERRA using the authority granted to it by the War Powers Clause, which is located in Article I of the Constitution.

It is true that the Supreme Court made broad statements, in cases like Seminole Tribe of Florida v. Florida (1996) and Alden v. Maine (1999), to the effect that Congress could not use its Article I powers to abrogate state sovereign immunity, but just a few years later, the Court said that Congress could abrogate state sovereign immunity under the Bankruptcy Clause, an Article I power. See Central Virginia Community College v. Katz (2006). Continue reading →

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New Mexico Supreme Court issues four published decisions in February 2014

by Emil J. Kiehne Posted on March 3, 2014

Below is my summary of the four published decisions the New Mexico Supreme Court issued in February 2014:

1.   Rayellen Resources, Inc. v. New Mexico Cultural Properties Review Committee (Feb. 6, 2014). The Court affirmed the decision of the New Mexico Cultural Properties Review Committee to recognize 400,000 acres of land on Mount Taylor as a registered cultural property. Justice Daniels wrote the opinion. Because my firm is involved in the case, I won’t be commenting on the merits, but this story by Scott Sandlin in the Albuquerque Journal has further details.

2.  Bank of New York v. Romero (Feb. 13, 2014). This opinion, by Justice Daniels, addresses what a mortgage lender has to do to establish standing in a foreclosure case, and also holds that the loan at issue violated the New Mexico Loan Protection Act, which prohibits home mortgage financing that does not provide a “reasonable, tangible net benefit” to the borrower. The implication is that home mortgage lenders may be obligated to determine whether borrowers will experience a “reasonable, tangible net benefit” before extending a loan. For more on this decision, see this article by Joey Peters in the Santa Fe Reporter, and this story by Scott Sandlin and T.S. Last in the Albuquerque Journal.

3.  Bernalillo County Health Care Corp. v. New Mexico Public Regulation Commission (Feb. 20, 2014). In another rebuke for the PRC, the Supreme Court reversed the Commission’s decision to authorize a company to provide non-emergency transport services in Bernalillo County.

In an opinion by Chief Justice Maes, the Court held that there was insufficient evidence presented that the new company would be a fit provider of ambulance services, but did hold that the evidence demonstrated a “need” for more ambulance services. The Court thus upheld the objections of the protestors, i.e. providers of competing ambulance services.

The notion that a business should have to demonstrate that a “need” for its services exists before beginning operations makes no sense. As Paul Gessing recently noted with respect to a similar case, these anti-competitive laws obstruct the growth of New Mexico’s economy. Of course, that’s not a criticism of the Supreme Court. It’s not the justices’ fault if the Legislature enacts crazy laws for them to interpret.

4.  Montoya v. Driggers (Feb. 27, 2014). Montoya was convicted of both first-degree kidnapping and criminal sexual penetration (CSP), but the latter conviction was vacated on appeal to avoid violating double jeopardy principles. Montoya then argued that because his CSP conviction was vacated, he should not be required to register as a sex offender.

Justice Chavez’s opinion makes short work of this claim, holding that Montoya is still required to register as a sex offender because his CSP conviction was vacated due to double jeopardy issues, not because there was insufficient evidence to show that he had committed a sexual assault.

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NM Court of Appeals holds argument at Grants High School

by Emil J. Kiehne Posted on February 26, 2014

Dana Martinez has this story in the Cibola Beacon about an oral argument the Court of Appeals held last week at Grants High School in Grants, New Mexico. The case concerned a man who was placed on probation for driving while intoxicated and theft, but he allegedly drove while intoxicated again, this time injuring a woman who was with him.

In recent years, the Court of Appeals has held oral arguments at high schools and other locations around the state. This was apparently the third oral argument to be held at Grants High School. Perhaps these arguments will inspire some students to become appellate advocates themselves.

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Elane Photography files reply brief in support of its cert. petition

by Emil J. Kiehne Posted on February 26, 2014

The briefing is now complete on Elane Photography’s petition for certiorari in the Supreme Court of the United States, which seeks review of the New Mexico Supreme Court’s decision in Elane Photography, LLC v. Willock:

1.  Respondent Vanessa Willock’s Brief in Opposition to the petition was filed on February 7.

2.  Yesterday we filed Elane Photography’s Reply Brief.

My understanding is that the Supreme Court will likely set this case for conference on Friday, March 21, and issue a decision on the petition for certiorari on Monday, March 24. You can read my previous posts in this important First Amendment case from New Mexico here, here, and here.

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Have lunch with Chief Judge Roderick Kennedy of the NM Court of Appeals

by Emil J. Kiehne Posted on February 25, 2014

The New Mexico State Bar’s Appellate Practice Section is sponsoring a brown bag lunch with Chief Judge Roderick Kennedy of the New Mexico Court of Appeals.

The event will occur at the State Bar Center in Albuquerque on Friday, March 7, at noon. If you’d like to attend, please RSVP to Dolph Barnhouse at [email protected].

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The Spring 2014 edition of NM’s appellate practice section newsletter is out

by Emil J. Kiehne Posted on February 19, 2014

The Spring 2014 edition of Appellate News, the newsletter of the State Bar of New Mexico Appellate Practice Section, is now out, and contains an interesting interview with Justice Barbara Vigil. You can also read my own interview with Justice Vigil here.

As a bibliophile and New Mexico history enthusiast, I was intrigued by the fact that Justice Vigil is reading Black-Robed Justice by Arie Poldervaart, which describes the colorful history of the New Mexico judiciary during territorial days. I had not heard of it, and look forward to getting my hands on a copy.

Do you know of any good books that focus on New Mexico’s legal history? If so, please offer any recommendations in the comments.  I’m always looking for good books to read!

As for my own suggestion, I’ve recently acquired a copy of Sagebrush Lawyer, by Arthur T. Hannett, who practiced law in Gallup during the first half of the 20th Century, and served as Governor in 1925 and 1926. It looks like it will be an interesting read.

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It’s a bird, it’s a plane … no, it’s Superjudge!

by Emil J. Kiehne Posted on February 13, 2014

Yesterday’s edition of the Albuquerque Journal contained this story, by Andy Stiny, about First Judicial District Court Judge Sheri Raphaelson.

On her way to hear the criminal docket in Tierra Amarilla, Judge Raphaelson saw an overturned pickup truck and stopped to help its injured occupant, Isaac Martinez, who was a defendant set to appear in her courtroom that morning. She rendered aid and comforted Mr. Martinez until medical attention arrived.

Several other defendants, who were also scheduled to appear before Judge Raphaelson that morning, stopped to assist. One told the judge, “I knew I was supposed to be in court but I thought someone’s life was more important than court.”

In addition to rescuing people, Judge Raphaelson is a midwife who spent her Christmas vacation in Haiti to deliver babies there. She has also published a memoir of sorts, called A Complicated Heart: How Working as a Judge, Lawyer, and Midwife Taught Me What Really Matters.

Given this record, I also assume, or at least, would not be surprised to hear, that Judge Raphaelson spends her weekends visiting and helping the poor and sick!

In addition, Judge Raphaelson has earned some well-deserved national attention for her actions, at Above the Law, the ABA Journal, and the Washington Post.

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With restrictive covenants, it’s better to beg permission than ask forgiveness

by Emil J. Kiehne Posted on February 11, 2014

The Court of Appeals has upheld enforcement of a restrictive covenant against a woman who opened a dog training and boarding business in a residential area. See Myers v. Armstrong (Feb. 5, 2014), opinion by Judge James Wechsler.

The moral of this story is that if you want to do something on your land that might violate a restrictive covenant, you’d better get permission from all your neighbors, or a court order allowing your activity, before you sink a lot of money into it.

The defendant, Armstrong, opened a dog training business on her property in 2000, added a dog boarding business in 2003, and built a 3,000-square foot metal building in 2009 for use in the business. After the building was completed, some neighbors sued to have the building removed. The trial court decided that the building violated the subdivision’s restrictive covenants.

On appeal, Armstrong argued that the all improvements required approval from the subdivision’s architectural control committee, but because the committee hadn’t operated since 1984, the restrictive covenants were unenforceable.

Judge Wechsler rejected this argument, holding that the covenants were binding on the landowners, and that in the absence of a committee, a court can provide an equitable solution. The lack of a committee didn’t give Armstrong a license to violate the covenants; if she wanted a decision on whether her building was proper, she could’ve sought it from a court.

This ruling seems entirely sensible to me. Restrictive covenants are property rights belonging to each landowner within a subdivision. An individual landowner may have bought his or her property after the architectural control committee lapsed, or may have had no power to keep the committee in operation without cooperation from others. That landowner, however, should not lose his or her property rights due to causes outside his or her control.

The opinion doesn’t make clear whether Armstrong will merely be required not to operate the dog boarding business in the building, or whether she will have to remove the building, but whatever the case, it seems that she will have to bear some significant expenses that possibly could have been avoided if she had obtained permission from her neighbors, or a court order, allowing her to construct the building before investing more resources.

 

 

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Tenth Circuit rejects New Mexico’s view that unbalanced arbitration agreements are unenforceable

by Emil J. Kiehne Posted on February 11, 2014

New Mexico’s appellate courts have held that arbitration agreements are unconscionable if they allow one party to bring its most likely claims in court, while requiring the other party to bring its most likely claims in arbitration. This view is reflected in cases like Cordova v. World Finance Corp. of New Mexico and Figueroa v. THI of New Mexico at Casa Arena Blanca LLC (about which I blogged here).

Under the Federal Arbitration Act, arbitration agreements are enforceable “save upon grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. New Mexico’s courts, however, believe that the FAA does not preempt state law requiring that arbitration agreements apply (more or less) equally to both parties, because unconscionability is a ground on which any contract could be revoked.

But in THI of New Mexico at Hobbs Center, LLC v. Patton, the Tenth Circuit held that the FAA preempts New Mexico’s fair-balance requirement. The case involved a nursing home arbitration agreement that allowed the nursing home to bring the claims it was most likely to have against a resident in court, but required the resident to bring his most likely claims (e.g. personal injury claims) in arbitration.

As Judge Harris Hartz’s opinion explains, the notion that a contract is unconscionable if it allows one party to bring some claims in court, while requiring another to bring his or her claims in arbitration, assumes “the inferiority of arbitration to litigation.” But this sort of analysis, Judge Hartz noted, is exactly what the FAA prohibits: “A court may not invalidate an arbitration agreement on the ground that arbitration is an inferior means of  dispute resolution.”

This decision opens up a split between the Tenth Circuit, and New Mexico’s state courts, about whether the FAA preempts the fair-balance principle. It is possible that New Mexico’s appellate courts will adopt Judge Hartz’s analysis on the next occasion they have to consider the issue.

If New Mexico’s appellate courts will not reconsider the rule in Cordova and Figueroa, this increases the likelihood that the U.S. Supreme Court will review the issue. The U.S. Supreme Court denied the petition for writ of certiorari in Figueroa.  A similar petition in Toll Brothers, Inc. v. Noohi, a case from the Fourth Circuit, was thought to have a good chance of being granted, but it apparently settled while the petition was pending.

Do you agree, or disagree, with the Tenth Circuit’s decision? Please feel free to leave a comment with your thoughts.

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New Mexico Court of Appeals holds that aerial surveillance by police constitutes a search requiring a warrant

by Emil J. Kiehne Posted on January 20, 2014
New Mexico police will need search warrants to play with these toys.
New Mexico police will likely need search warrants to play with these toys.  (This photo has been released into the public domain.)

In an age when people are increasingly concerned about government’s use of various forms technology to spy on them, the Court of Appeals has signaled that there will be limits to police use of such technology.

Last week, in an important expansion of New Mexico’s departure from the U.S. Supreme Court’s Fourth Amendment jurisprudence, the Court of Appeals held in State v. Davis that aerial surveillance by police constitutes a search requiring a warrant, or an exception to the warrant requirement.

This case is something of a saga. In 2006, a police helicopter spotted marijuana plants in the 72-year-old Mr. Davis’ greenhouse. Heavily armed law enforcement officers carrying A-15 semi-automatic weapons confronted Mr. Davis and asked for his consent to search the premises, while a police helicopter hovered overhead and police vehicles surrounded his property. Mr. Davis “consented,” and the search revealed marijuana plants.

Although it would be hard to imagine anyone feeling perfectly free to refuse the officers’ request, the New Mexico Supreme Court nevertheless held that Mr. Davis voluntarily consented to the search.  (See my earlier post on that decision). This case has also  attracted criticism from Drug War opponents due to the military-style nature of the raid on Mr. Davis’ property.

While Mr. Davis lost that battle, it now seems he may have won the war. The Court of Appeals, in an opinion by Judge Cynthia Fry, has held that the aerial surveillance of Mr. Davis’ property was a search requiring a warrant, or an exception to the warrant requirement. And because Mr. Davis’ consent to the search was not sufficiently attenuated from the illegal search, the Court ordered the evidence suppressed. Continue reading →

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