Read the latest issue of Native American Law Watch

by Emil J. Kiehne Posted on January 13, 2014

For those of you who follow developments in Native American Law, you might be interested in a publication written by my colleagues, Native American Law Watch.

The latest issue has several interesting articles, including the following:

“Jurisdiction for Injuries Arising at Tribal Casinos: The Importance of Clear Dispute Resolution Terms,” by Brian Nichols, which discusses recent developments in New Mexico and Oklahoma law on this subject.

“Jemez Pueblo’s Aboriginal Title Claims to the Valles Caldera dismissed; Pueblo Appeals,” by Sarah Stevenson, discussing the Pueblo of Jemez’s struggle to regain ownership of the most beautiful place in New Mexico, which will now proceed to the Tenth Circuit. I have previously blogged about that lawsuit here and here.

“Grand Canyon Skywalk Update,” by Deana Bennett, regarding a structure that you don’t want to walk upon if you’re scared of heights.

There are several articles which are well worth your time if you practice in this area, or are interested in learning more about it.

Posted in Opinions and Analysis | Tagged , | Comments Off on Read the latest issue of Native American Law Watch

Understanding the form that supposedly exempts the Little Sisters of the Poor from the HHS contraceptive mandate

by Emil J. Kiehne Posted on January 6, 2014

As you may be aware, the Tenth Circuit recently denied the application to stay application of the Obama Administration’s contraceptive mandate filed by the Little Sisters of the Poor, but Justice Sotomayor granted the Little Sisters’ application. Since then, however, there has been a lot of confusion about the issues in the case.

To hear the Obama Administration tell it, the Little Sisters’ claimed injury — i.e. having to provide insurance that covers contraceptives and abortifacients to which they object on religious and ethical grounds — is entirely self-inflicted. All the Little Sisters have to do, they say, is sign a simple form, called ESBA Form 700, and they would be exempt from the mandate.

Fortunately, Prof. Kevin Walsh at Mirror of Justice has taken it on himself to explain why the government’s argument fails to correctly understand the Little Sisters’ argument. By signing EBSA Form 700, the Little Sisters would be authorizing their third-party administrator to provide the coverage that the Little Sisters strenuously object to providing. As the Little Sisters see it, they cannot take advantage of the government’s accommodation to them without facilitating the very acts to which they object. So the issue is at least more complicated than it might appear at first glance.

For more on this case, you should also check out the Wall Street Journal’s excellent editorial, “Little Sisters of the Government,” and Lyle Denniston’s characteristically comprehensive discussion of the issues at SCOTUSblog.

It will be interesting to see how this turns out. A further ruling could come from Justice Sotomayor or the full Court at any time.

 

Posted in Tenth Circuit, United States Supreme Court | Tagged , , | Comments Off on Understanding the form that supposedly exempts the Little Sisters of the Poor from the HHS contraceptive mandate

My Top Ten Most Popular Posts in 2013

by Emil J. Kiehne Posted on December 31, 2013

Here are the top ten most-read posts from the New Mexico Appellate Law Blog in 2013. Thanks again to all the readers of this blog, and I hope each of you has a Happy New Year!

1. Heroic off-duty police officer who died rescuing child is entitled to workers’ compensation benefits, says NM Court of Appeals.

The Court of Appeals’ August 19, 2013 decision in Schultz v. Pojoaque Tribal Police Department was a landmark in workers’ compensation law.

2.  Read the briefs in Griego v. Oliver, the same-sex marriage case in the New Mexico Supreme Court.

Contains links to the briefs in what is certainly the New Mexico Supreme Court’s most important decision of the year, Griego v. Oliver.

3.  New Mexico Supreme Court issues decision in high-profile Elane Photography case.

The high-profile First Amendment decision in Elane Photography, LLC v. Willock generated national attention, and may be reviewed by the Supreme Court of the United States.

4.   “A Bit of the Wild West Survives in New Mexico.”

Who knew that so many people were interested in New Mexico’s fence-out law?

5.  It’s time for reciprocity in New Mexico.

We have yet to learn whether the New Mexico Supreme Court will bring our state into the 21st Century, and allow experienced lawyers from other states to join New Mexico’s bar (and vice versa) without having to take the bar exam again.

6.  NM Supreme Court denies petitions seeking recognition of same-sex marriage.

This order must have disappointed same-sex marriage advocates in August, but they ultimately prevailed in December.

7.  “Governor tapes Santa Fe attorney for vacant First District judge seat”

Governor Martinez’s appointment of Francis Mathew to the district court bench generated some interest.

8.  Motion to compel arbitration is not a Get-Out-Of-Discovery-Free card, says NM Court of Appeals.

Efforts to enforce arbitration agreements usually provide fodder for several New Mexico appellate decisions each year.

9.  Interview with Justice Paul Kennedy, Republican nominee for the NM Supreme Court.

Although this interview was posted in November 2012, lots of folks are still interested in reading about Justice Kennedy, who is now back in private practice as one of the most capable lawyers in New Mexico.

10.  Read the briefs filed yesterday in New Mexico’s same-sex marriage cases.

I posted these briefs in July, when the same-sex marriage cases were first before the New Mexico Supreme Court.

 

 

Posted in Everything Else, New Mexico Court of Appeals, New Mexico Supreme Court, News | Tagged , | Comments Off on My Top Ten Most Popular Posts in 2013

Tenth Circuit: College Edition!

by Emil J. Kiehne Posted on December 30, 2013
Don't mess with New Mexico State!
Don’t mess with New Mexico State!

Just as the Jeopardy! gameshow has an annual College Championship, so too our federal appellate courts apparently have special days when they issue opinions addressing events on our nation’s college campuses.

Last Monday, December 23, 2013, was one of those days here in the Tenth Circuit, and the Court made it a Daily Double.

The first decision, United States v. Anwar, stands for the proposition that Harvard is not the only place where students make bomb threats to avoid taking examinations. Of course, one wonders why the accused Harvard student felt the need to make such a threat, given the rampant grade inflation at the country’s oldest institution of higher learning…

But I digress. In Anwar, the defendant, a student at New Mexico State University, wished to avoid sitting for an examination, and sent two e-mails and made four telephone calls conveying bomb threats. One of the calls led to the evacuation of 240 people from the engineering building, which interrupted 14 classes then in progress. In addition, several police officers and firefighters had to sweep the building for explosives.

The district court applied a sentencing enhancement due to the “substantial disruption” caused by Mr. Anwar’s threat, and sentenced him to 24 months’ imprisonment. The issue on appeal was whether the disruption was substantial enough to warrant the enhancement. Judge Scott Matheson’s opinion affirmed the district court’s decision and held that, yes, disrupting the activities of more than 240 people does indeed warrant more prison time. (If the First Circuit follows the Tenth Circuit’s reasoning on this point, then things don’t look good for the accused Harvard student if he is convicted — the bomb threats there led to the evacuation of four buildings).

The other (entirely unrelated) case involves the University of New Mexico. In Diversey v. Schmidly, a graduate student sued UNM and several of its officials for copyright infringement for copying his Ph.D. dissertation, and depositing it in the University’s main library, thus making it available to anyone who wanted to browse or check it out.

The issue on appeal was whether the plaintiff’s copyright infringement claims were barred by the statute of limitations. The Tenth Circuit, in an opinion by Judge Terrence O’Brien, held that the copying claim was barred. The plaintiff knew in 2008 that the copying had occurred, but did not file suit till 2012, and that claim failed to meet the 3-year statute of limitations. The Tenth Circuit, joining the majority of circuits to have considered the issue, rejected the plaintiff’s argument that a “continuing wrong” exception should apply.

The Court held, however, that the plaintiff’s claim for improper distribution of his dissertation did not accrue till 2009, when the plaintiff first learned that the University had listed the dissertation in its library catalogue. The case was remanded for further consideration of this claim.

And now, as Alex Trebek would say, “So long, everybody…”

Posted in Opinions and Analysis, Tenth Circuit | Tagged , , , , , , | Comments Off on Tenth Circuit: College Edition!

Tenth Circuit rules that New Mexico’s limits on contributions to independent groups violate First Amendment

by Emil J. Kiehne Posted on December 23, 2013

Last week, in Republican Party of New Mexico v. King (Dec. 18, 2013), the Tenth Circuit upheld an injunction against enforcement of a New Mexico statute (NMSA 1978, § 1-19-34.7(A)(1)) which prevents individuals from making contributions to political committees in excess of $5,000.

The opinion, written by Judge Timothy Tymkovich, states that under the Supreme Court’s decision in Citizens United v. Federal Election Commission (2010), the only constitutional basis for campaign finance restrictions is to prevent actual or apparent quid pro quo corruption. Citizens United also held that there was no anti-corruption interest in limiting independent expenditures by groups (such as political action committees) that do not coordinate with any candidate.

The Tenth Circuit joined several other circuits which have held that if there is no anti-corruption interest in limiting expenditures by independent political action committees, then there can be no such interest in limiting individual contributions to such groups.

I am by no means a campaign finance law junkie, but I’m inclined to favor more speech rather than less speech, so this seems like a good decision. But I know that lots of people are critical of Citizens United, and believe that the government should have a freer hand to limit all manner of campaign expenditures. If you have a strong opinion on this issue, whether you favor or oppose Citizens United, please feel free to leave a comment.

Also, a Merry Christmas to all of my readers!

Posted in Opinions and Analysis, Tenth Circuit | Tagged , | Comments Off on Tenth Circuit rules that New Mexico’s limits on contributions to independent groups violate First Amendment

New Mexico Supreme Court rules in favor of same-sex marriage

by Emil J. Kiehne Posted on December 19, 2013

In what will surely be regarded as the most important decision issued this year, the New Mexico Supreme Court today issued its decision in Griego v. Oliver, holding that the state constitution requires that same-sex couples be allowed to marry.

I read Justice Edward Chavez’s opinion over the lunch hour, and I think the principal points from the 31-page opinion are as follows:

1.  In enacting New Mexico’s marriage statutes, from 1862 forward, the Legislature did not intend to allow same-sex couples to marry.

2.  The Court analyzed the marriage statutes under the Equal Protection Clause of Article II, Section 18 of the New Mexico Constitution.

3.  Intermediate scrutiny applies to the legislative classification restricting marriage to opposite-sex couples. The Court therefore declined to apply strict scrutiny, as same-sex marriage proponents had urged, and it rejected the argument advanced by opponents of same-sex marriage that rational basis scrutiny should be applied.

4. To survive intermediate scrutiny, opponents of same-sex marriage needed to demonstrate that restricting marriage to opposite-sex couples was “substantially related to an important government interest.”

5.  The Court rejected the justifications put forward by the opponents, and held that limiting marriage to opposite-sex couples violated the New Mexico Constitution’s Equal Protection Clause. Among other things, Justice Chavez states that the purpose of New Mexico’s marriage laws is not principally to promote responsible procreation, but rather “to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property.” Para. 6.

6.  “Our holding will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious beliefs.” Para. 3.

7.  This decision is based entirely on the New Mexico Constitution, not the United States Constitution. Thus, it is not subject to review by the Supreme Court of the United States.

I’m sure there will be a lot of commentary about this decision, but some has already appeared. For favorable views of the decision, see this jubilant announcement from the ACLU of New Mexico, which helped to litigate the case, and this commentary from the New Civil Rights Movement blog. For a critical view, see this blog post from Ed Whelan. Also, here’s a report from Steve Terrell in the Santa Fe New Mexican.

If you come across any news stories or commentary, representing any point of view, and you think the readers of this blog would be interested, please drop me a line!

(UPDATE: December 20, 2013) — Here is a roundup of links to news stories about the ruling:

Albuquerque Journal: “Same-sex marriage is legal in New Mexico.”

Chicago Tribune: “New Mexico becomes latest state to legalize gay marriage.”

The Guardian (U.K.): “New Mexico becomes 17th US state to legalise same-sex marriage.”

KUNM: “NM Supreme Court: Same-Sex Marriage Is Legal in New Mexico.”

Las Cruces Sun-News: “New Mexico’s highest court rules same-sex marriage legal.”

New Mexico Telegram: “State Supreme Court rules same-sex marriage legal in New Mexico.”

New York Times: “New Mexico Becomes 17th State to Allow Gay Marriage.”

Taos News: “Supreme Court rules same-sex couples can marry in New Mexico.”

Posted in New Mexico Supreme Court, Opinions and Analysis | Tagged , , | 1 Comment

Read the amicus briefs filed in support of Elane Photography’s cert. petition

by Emil J. Kiehne Posted on December 19, 2013

In November, we filed this petition for certiorari in the Supreme Court of the United States, asking the Court to review the New Mexico Supreme Court’s decision in Elane Photography, LLC v. Willock.

Last week, several state attorneys general, as well as other organizations and individuals, filed amicus curiae briefs asking the Supreme Court to take the case, and to protect the First Amendment right of business owners not to be compelled to engage in expression with which they disagree.

In case you are interested in reading them, here are links to the briefs:

1. Brief of Alabama, Arizona, Kansas, Michigan, Montana, Oklahoma, South Carolina, and Virginia as Amici Curiae Supporting Petitioner.

This amicus brief points out, among other things, that no state has a legitimate interest in compelling people to create expression with which they disagree.

2. Brief of Amici Curiae Cato Institute, Eugene Volokh, and Dale Carpenter in Support of Petitioner.

This brief was written by Prof. Eugene Volokh of UCLA Law School (and chief conspirator of the Volokh Conspiracy), and Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute. Mr. Shapiro has also written a blog post about this case, Antidiscrimination Law Can’t Trump the Freedom of Speech, at the Cato at Liberty blog.

3. Brief of Wedding Photographers as Amicus Curiae in Support of Petitioner.

In the state courts, our opponents suggested that wedding photography is not sufficiently expressive to merit First Amendment protection. This brief should put those suggestions to rest.

Posted in United States Supreme Court | Tagged , , | Comments Off on Read the amicus briefs filed in support of Elane Photography’s cert. petition

NM Court of Appeals decisions during the first half of December 2013

by Emil J. Kiehne Posted on December 17, 2013

I apologize for the lack of posts recently. Over the past two weeks I’ve been assisting with a trial in Santa Fe. Now that it’s over, I’m glad to be back with you all.

The New Mexico Court of Appeals issued four published opinions during the first half of this month:

1.  Arias v. Phoenix Indemnity Insurance Company (December 5, 2013). In an opinion by Chief Judge Roderick Kennedy, the Court held that where an insured’s rejection of uninsured/underinsured motorist coverage was legally defective, the insured was also entitled to have her coverage on two automobiles stacked.

2.  Miller v. Bank of America, N.A. (December 10, 2013). In an opinion by Judge Timothy Garcia, the Court upheld a judgment for breach of fiduciary duty against a bank as trustee for improper management of the trust. The opinion contains an interesting discussion of the various damage remedies that are, and are not, available to beneficiaries in such a case.

3.  Snow v. Warren Power & Machinery, Inc. (December 12, 2013). The plaintiffs in a products liability suit sought to add two new defendants. They filed their motion to amend their complaint one day before the statute of limitations expired, but the trial court did not grant the motion till after it expired. In another opinion by Judge Timothy Garcia, the Court held that the claims against the newly-added defendants were barred by the statute of limitations.

4.  New Mexico Department of Workforce Solutions v. Perez (December 12, 2013). In an opinion by Judge Jonathan Sutin, the Court held that the director of the State Personnel Board was a political appointee, and thus not entitled to collect unemployment benefits after her employment was terminated. Judge Michael Bustamante filed a dissenting opinion.

 

Posted in New Mexico Court of Appeals, Opinions and Analysis | Tagged , , , , , , | Comments Off on NM Court of Appeals decisions during the first half of December 2013

Don’t forget to register for tomorrow’s New Mexico Appellate Practice Institute

by Emil J. Kiehne Posted on November 21, 2013

This is just a reminder that the New Mexico State Bar’s 24th Annual Appellate Practice Institute will be held tomorrow (November 22) at the New Mexico State Bar’s offices in Albuquerque.

The program looks spectacular:

  • Judge Stephanie Seymour of the U.S. Court of Appeals for the Tenth Circuit will discuss her experience on that court.

 

  • Justice Barbara Vigil of the New Mexico Supreme Court, and Judge Linda Vanzi of the New Mexico Court of Appeals will discuss what it’s like to go from being a district court judge to serving on an appellate court.

 

  • Ed Ricco and Sue Herrmann will give their annual update on developments in New Mexico appellate practice.

 

  • Alice Lorenz and Margaret Caffey-Moquin will discuss supersedeas bonds.

 

  • Present candidate for the New Mexico Court of Appeals, Kerry Kiernan, and Larry Montaño of Holland & Hart, will give a presentation about preservation of error in bench trials.

 

  • Steve Tucker and Mark Hirsch will give a talk called “The Ethics of Wearing Two Hats – Original and Appellate Jurisdiction.”

 

  • And finally, you can learn everything you could possibly want to know about docketing statements and petitions for certiorari from Paul Fyfe, chief of the New Mexico Court of Appeals’ Prehearing Division, Andrew Montgomery, and Nancy L. Simmons.

 

 

Posted in Appellate Practice, News | Tagged | Comments Off on Don’t forget to register for tomorrow’s New Mexico Appellate Practice Institute

New Mexico adopts disclosure requirement for amicus curiae briefs

by Emil J. Kiehne Posted on November 6, 2013

The New Mexico Supreme Court has announced a new disclosure requirement for amicus curiae briefs in the state appellate courts.

Effective on December 31, all amicus curiae briefs “shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person other than the amicus curiae, its members, or its counsel, who made such a monetary contribution.” You can view a redline version of the amendment to New Mexico Rule of Appellate Procedure 12-215(F) here.

As the Appellate Rules Committee’s Commentary explains, the new language is modeled after U.S. Supreme Court Rule 37.6, and is not intended to deter the filing of any amicus brief, but to increase transparency in amicus curiae filings. The concern that this rule addresses is that parties may fund amicus briefs as an end run around the page limits for appellate briefs, or to create the appearance of widespread support for a party’s position. Certainly, if an organization does not feel strongly enough about a case to fund its own amicus brief, that is something the appellate courts should be able to consider in evaluating the brief’s credibility.

Please note that the new rule is also not meant to deter coordination between a party and an amicus curiae who supports that party’s position. In fact, that sort of coordination is valuable to ensure that the appellate courts do not receive “me too” amicus briefs which merely state the party’s position. An amicus curiae brief is most valuable when it provides arguments or insights that a party’s brief does not or cannot provide.

In the interest of full disclosure, I should say that I proposed this amendment to the Appellate Rules Committee. I believe that the disclosure requirement will promote the integrity of the appellate process, and am happy that our Supreme Court has seen fit to adopt it.

 

Posted in New Mexico Supreme Court, News | Tagged , | Comments Off on New Mexico adopts disclosure requirement for amicus curiae briefs