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

by Emil J. Kiehne Posted on August 16, 2013

Steve Terrell’s excellent Roundhouse Roundup blog reports that the New Mexico Supreme Court has denied the petitions for writ of mandamus in Hanna v. Salazar and Griego v. Oliver, which asked the Court to recognize a right to same-sex marriage in New Mexico.

The Supreme Court’s denial is “without prejudice” to the petitioners’ right to pursue their claims in state district court (the Griego petitioners filed a case there some time ago), or potentially in federal district court.  In other words, the Supreme Court has not decided against a right to same-sex marriage, but is simply ordering that these cases proceed in the lower courts, just like any other cases. Once the cases are resolved there, the losing parties will have a right to appeal, and at that time I think the Supreme Court would likely agree to consider this issue.

For more background on writs of mandamus, you can check out my earlier post, in which I listed several reasons why a writ of mandamus was likely not proper in these cases.

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

by Emil J. Kiehne Posted on August 15, 2013

Officer Kevin Schultz of the Pojoaque tribal police department died a hero. While acting as a chaperone for a church youth group, he jumped in the Rio Grande to save a child who was drowning, but was unable to save himself.

Although the Pojoaque tribal government initially told Officer Schultz’s widow that it would help her obtain any benefits, including workers’ compensation benefits, to which she might be entitled, the tribal government apparently had a change of heart, and argued that she was not entitled to workers’ compensation benefits. This case has spawned four previous appellate decisions, two from the Court of Appeals, and two by the Supreme Court.

Yesterday, in an opinion by Judge Cynthia Fry, the Court of Appeals held in Schultz v. Pojoaque Tribal Police Department that Officer Schultz’s widow is entitled to recover workers’ compensation benefits. (N.B., I printed the opinion yesterday, but for some reason it is not on the Court’s website this morning.  I will post a link when it becomes available again). UPDATE (Aug. 22, 2013): I’ve now linked to the opinion. Continue reading →

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NM Supreme Court reaffirms right of non-English speakers to serve on juries

by Emil J. Kiehne Posted on August 13, 2013

One of today’s headlines at Drudge Report is “You can serve on jury even if you don’t understand english” (sic), referring to yesterday’s decision by the New Mexico Supreme Court in State v. Samora, which reaffirmed that proposition.

Juror service by non-English speakers is, however, not sensational news around here. After all, when the United States wrested control of the Land of Enchantment from Mexico back in the 1840s, the vast majority of New Mexico’s residents spoke Spanish or Native American languages. There was no practical alternative but to include non-English speakers on juries, and their right to serve is now enshrined in Article VII, Section 3 of the New Mexico Constitution, which provides that the right of a citizen to serve on a jury “shall never be restricted, abridged or impaired on account of … [the] inability to speak, read or write the English or Spanish languages….”

The New Mexico Supreme Court has previously held that a district court judge must make “every reasonable effort” to make it possible for a non-English speaking juror to serve, chiefly by making arrangements to secure an interpreter.

In this case, as Justice Daniels’ opinion explains, the district court’s efforts were not satisfactory. Continue reading →

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District court’s advice about immigration consequences of guilty plea can’t take the place of good advice from counsel

by Emil J. Kiehne Posted on August 13, 2013

During the guilty plea colloquy for a defendant who was a Mexican national, the district judge advised him that deportation would be a likely result of his guilty plea, and the defendant said he understood. In a later habeas corpus proceeding, the defendant unsuccessfully tried to withdraw his plea, alleging that his attorney had not properly advised him about the immigration consequences of his guilty plea.

The State argued that the trial judge’s advice that deportation was likely, combined with the defendant’s statement that he understood what the judge had told him, “cured” any inadequate advice the defendant might have received from his attorney.  Continue reading →

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“Supreme Court to take up suit against recall group”

by Emil J. Kiehne Posted on August 3, 2013

According to this report by Matthew van Buren in the Taos News, the New Mexico Supreme Court has agreed to hear Cordova v. Cline, a case involving the interpretation of New Mexico’s anti-SLAPP statute.

Arsenio Cordova, an former board member of the Taos Municipal Schools, sued several people, accusing them of civil conspiracy and malicious abuse of process for filing a recall petition against him in district court.  The Court of Appeals held that the anti-SLAPP statute does not protect people who initiate judicial proceedings, like the recall petition in district court, but only those who participate in quasi-judicial meetings, such as those before boards or commissions.

You can read my earlier coverage of this case here, where I noted the anomalous and dubious results that could be caused by the Court of Appeals’ narrow interpretation of the anti-SLAPP statute.

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“NM Supreme Court decides licensing board improperly revoked counselor’s license”

by Emil J. Kiehne Posted on August 3, 2013

Milan Simonich has this report in the Carlsbad Current-Argus about this week’s non-precedential decision by the New Mexico Supreme Court in Avalos v. New Mexico Counseling and Therapy Practice Board.

The Supreme Court, in an opinion written by Justice Charles Daniels, held that the Counseling and Therapy Practice Board denied Homer Avalos his constitutional right to due process.  A teenaged client accused Mr. Avalos of committing a sexual assault, and a hearing officer found the allegations not supported by the evidence, but the Board nevertheless revoked Mr. Avalos’ license at a meeting where neither Mr. Avalos or his lawyer were present.

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“Last Chance? 10th Circuit Court could decide fate of defunded New Mexico agencies”

by Emil J. Kiehne Posted on August 3, 2013

Dennis Grantham has this report at Behavioral Healthcare about the recent and controversial decision by the New Mexico Human Services Department to defund several mental health care providers over allegations of fraud.

United States District Judge Christina Armijo denied the providers’ request for an injunction against HSD, and the providers are appealing the denial of injunctive relief to the Tenth Circuit.  According to the report, HSD was required to file a response to the appeal yesterday.

 

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President Obama nominates Kansas Supreme Court Justice Nancy Moritz to the Tenth Circuit

by Emil J. Kiehne Posted on August 2, 2013

Yesterday, the White House announced President Obama’s appointment of Kansas Supreme Court Justice Nancy L. Moritz to the Tenth Circuit.

The Topeka Capital-Journal has this report on Justice Moritz’s nomination.  If confirmed, Justice Moritz will take the seat vacated by former Judge Deanell Reece Tacha, who is now the dean of Pepperdine University School of Law.

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It’s time for reciprocity in New Mexico

by Emil J. Kiehne Posted on July 30, 2013

(UPDATE, April 3, 2014: The Supreme Court has decided to allow reciprocity, see here).

When I graduated from law school in 2000, I took a job as a prosecutor in Philadelphia, and was therefore required to spend a great deal of time, and a significant amount of money, to study for the Pennsylvania bar exam.

After practicing there for several years, I wanted to return to New Mexico (which, I think we can all agree, is the best state in the country). If I had wanted to practice in almost 39 other states, I could have been admitted on motion, since I had already passed a bar exam and had practiced law. But New Mexico maintains an antiquated, thoroughly irrational requirement that one must take the bar exam to practice here.  I had to spend significant amounts of money and time to take the New Mexico bar exam just so I could return home.

Fortunately, the New Mexico Supreme Court presently is considering a petition to discard this unnecessary barrier to practice, and we should all hope that the Supreme Court will allow New Mexico to enter the 21st Century. Continue reading →

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

by Emil J. Kiehne Posted on July 23, 2013

(UPDATE, Sept. 24, 2013: Please note that the following post is from July 23, 2013. If you would like to read the briefs filed in the latest stage of Griego v. Oliver, please see this more recent post.)

Yesterday (July 22, 2013) was the deadline for response briefs in Hanna v. Salazar, the writ of mandamus proceeding presently pending in the New Mexico Supreme Court in which petitioners (two gay men) are asking the Court to compel the Santa Fe County Clerk to issue them a marriage license. Such a ruling would effectively legalize same-sex marriage in New Mexico.

The City of Santa Fe also submitted an amicus brief yesterday, and I expect that other groups or organizations may also have filed amicus briefs, or may still seek to file them. To the extent that I can obtain copies of all the briefs, I will post them here, so check back later if you don’t see the brief you want to read listed below (or if you have a brief and would like me to post it, please send it to me at [email protected]):

1.  Attorney General King’s Response to Petition for Writ of Mandamus: In this brief, the Attorney General argues that there is a constitutional right to same-sex marriage, that New Mexico law presently does not allow same-sex marriage, and that mandamus is not a proper remedy for petitioners. Therefore, the Attorney General is asking that the petition be denied. (Thanks to Assistant Attorney General Scott Fuqua for sending this to me).

2.  Santa Fe County Clerk’s Response to Petition for Writ of Mandamus: In this brief, the County Clerk argues that mandamus is improper against county officials, that New Mexico’s marriage laws do not contemplate same-sex marriage, and that the County Clerk has not violated the state constitution’s Equal Rights Amendment or Equal Protection provisions.  The Clerk asks that the petition be denied. (Note that the version of this brief I’m posting here does not contain the attachments indicated within the brief.  If I receive a version with attachments, I will post it here.)

3.  Brief of Amici Curiae New Mexico State Legislators in Support of Respondent: In this brief, several state legislators argue that mandamus is not a proper remedy for petitioners, and that the petition should be denied because limiting marriage to opposite-sex marriage is entirely constitutional. I believe a nearly identical amicus brief has also been submitted in Griego v. Oliver, the mandamus proceeding filed by the ACLU. The Court has not yet ruled on whether to grant the motion to file this brief, but the Court’s usual practice is to liberally allow the filing of amicus briefs.

This brief was filed on behalf of State Senators Ron Griggs, Carroll H. Leavell, Mark Moores, Steven Neville, Cliff R. Pirtle, William E. Sharer, and Pat Woods; and on behalf of State Representatives David M. Gallegos, Jimmie C. Hall, Yvette Herrell, Dennis J. Roch, James R.J. Stickler, and Bob Wooley.  (Thanks to Alliance Defending Freedom for sending this to me).

4.  City of Santa Fe’s Amicus Curiae Brief in Support of Petitioners: The City’s brief argues in support of petitioners that mandamus is a proper remedy, that New Mexico’s marriage laws already allow same-sex marriage, and that any prohibition on same-sex marriage would violate the equal rights guarantees of the New Mexico Constitution.  (Thanks to City Attorney Geno Zamora for sending this to me).

As with the legislators’ amicus brief, I don’t think the Court has yet granted the City’s motion to file this brief, but I expect it will do so.

If you know of any other briefs that have been filed in this important case, please let me know.  Or if you file one in the future, please feel free to send it to me, and I’ll be glad to post it here.

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