Telephonic approval of search warrants okay in New Mexico

by Emil J. Kiehne Posted on June 10, 2013

The New Mexico Constitution does not prohibit law enforcement officers from obtaining telephonic approval of search warrants. So the New Mexico Supreme Court held in State v. Boyse.

Law enforcement officers went to Defendants’ property to investigate a report of a dead horse, and after one of Defendants admitted having several dead horses and cats, an officer typed out a search warrant to investigate Defendants’ apparent cruelty to animals. The magistrate court was closed, so the officer spoke with a magistrate by telephone, and read the affidavit verbatim to the judge, who approved the warrant. Ultimately, the officers found evidence that led them to charge Defendants with over 100 counts of felony and misdemeanor cruelty to animals.

Defendants claimed that telephonic approval of the search warrant violated Article II, Section 10 of the New Mexico Constitution, which provides that no search warrant shall issue “without a written showing of probable cause, supported by oath or affirmation. Defendants argued that the words “a written showing” mean that a search warrant must be physically shown to a judge, and that telephonic approval is not sufficient. The Court of Appeals agreed with Defendants. See State v. Boyse, 2011-NMCA-113. Continue reading →

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“Tenth Circuit Allows Foreclosure on Purchase-Money Resulting Trust”

by Emil J. Kiehne Posted on June 10, 2013

Prof. Gerry W. Beyer of Texas Tech Law School has this post at the Wills, Trusts & Estates Prof Blog on the Tenth Circuit’s recent decision in United States v. Tingey (May 29, 2013). Judge Harris Hartz wrote the Court’s opinion.

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Medical malpractice damages cap is constitutional, says NM Court of Appeals

by Emil J. Kiehne Posted on June 7, 2013

A plaintiff suffered severe and painful injuries, and required subsequent surgeries, as a result of errors made during a colonoscopy. A jury awarded the plaintiff $1,000,000 in damages, but the trial court reduced the award to $600,000 to comply with the damages cap in the Medical Malpractice Act, which limits damages in a medical malpractice action against a qualified medical provider to $600,000 (punitive damages, plus “medical care and related benefits” are not included within the cap).

In Salopek v. Friedman, Chief Judge Kennedy, writing for a unanimous panel, first rejected a number of challenges to the judgment by the defendant doctor, including contentions that the jury instructions were erroneous, or that the damages award was excessive and should have been remitted even below $600,000. The opinion’s discussion of the truly awful consequences suffered by this plaintiff is pretty convincing.

Of more lasting significance, at least as far as the development of the law is concerned, is that the Court rejected the plaintiff’s cross-appeal, holding that the damages cap is indeed constitutional. Continue reading →

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In “perfect First Amendment storm,” 10th Circuit rules against anti-Bush protesters

by Emil J. Kiehne Posted on June 5, 2013

 

Anti-Bush Sign Copyright David Shankbone Used by permission under Creative Commons Attribution-Share Alike 3.0 Unported License
Anti-Bush Sign
Copyright David Shankbone
Used by permission under Creative Commons Attribution-Share Alike 3.0 Unported License

In 2007, President George W. Bush came to Los Ranchos de Albuquerque for a political fundraiser at the home of Larry Abraham, the mayor of Los Ranchos. Protestors opposed to Bush’s policies sought to demonstrate against him, but were required to remain over 150 yards away from the route traveled by the President’s motorcade. At the same time, demonstrators who supported Bush were allowed to stand on private property across from the entrance to Mr. Abraham’s driveway.

Several of the anti-Bush protestors brought a Bivens action against a Secret Service official, and a Section 1983 claim against two officers from the Bernalillo County Sheriff’s Office, alleging that these law enforcement officers violated the First Amendment by engaging in viewpoint discrimination. The defendants moved for summary judgment on qualified immunity grounds, but the district court denied the request.

Yesterday, in Pahls v. Thomas, the Tenth Circuit reversed. In a lengthy opinion, Judge Jerome Holmes explained that the district court erred by viewing the defendants’ conduct in the aggregate rather than examining the conduct of each individual defendant to determine whether they did anything to violate the protestors’ First Amendment rights. Continue reading →

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Two new NM Court of Appeals decisions — paternity and insurance coverage edition

by Emil J. Kiehne Posted on June 4, 2013

Yesterday the New Mexico Court of Appeals issued two decisions:

1.  The Court held that the personal representative of a deceased man (who died six months before the mother gave birth to his putative child) had standing to seek a determination of paternity under the New Mexico Uniform Parentage Act. The opinion in Estate of Swift v. Bullington was written by Judge Linda Vanzi.

2.  In an insurance coverage dispute, the Court held that State Farm had no obligation to provide a defense to its insured. The policy at issue said that State Farm would provide a defense for claims of malicious abuse of process. The insured was sued for a number of claims, but not malicious abuse of process. The insured argued that State Farm was still obligated to provide a defense, because the plaintiff’s complaint alleged that the insured had used the threat of baseless litigation to accomplish its ends. The Court of Appeals noted that a mere threat to engage in litigation does not constitute malicious abuse of process, which requires some that some improper act be committed in a judicial proceeding. Thus, State Farm had no duty to defend.

The Court’s opinion in Hinkle v. State Farm Fire & Casualty Company was written by Judge James Wechsler.

UPDATE: I forgot to insert a link to the Estate of Swift opinion in my original post. That is fixed now. Thanks to David Walther for bringing that error to my attention.

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New Mexico Supreme Court rules against Barnes & Noble in internet sales tax dispute

by Emil J. Kiehne Posted on June 3, 2013

Today the New Mexico Supreme Court held, in New Mexico Department of Taxation & Revenue v. Barnesandnoble.com, LLC, that the State may impose New Mexico gross receipts tax on Barnes & Noble’s online sales transactions.

In an opinion by Justice Edward Chavez, the Court held that although Barnes & Noble’s website (bn.com) and its physical store locations (of which there are three in New Mexico) are owned by two separate corporations, and although the website has no physical presence in New Mexico, internet sales transactions are nevertheless subject to state taxation, and do not violate the federal constitution’s Commerce Clause. Continue reading →

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New Mexico gun dealers can be made to report multiple rifle sales to ATF

by Emil J. Kiehne Posted on June 3, 2013

According to this report in the Washington Post, the U.S. Court of Appeals for the D.C. Circuit has upheld the Bureau of Alcohol, Tobacco, Firearms and Explosive’s (ATF) authority to demand that gun dealers in New Mexico, and the three other southwestern border states, report to ATF “when anyone buys — within a five-day period — two or more semi-automatic weapons capable of accepting a detachable magazine and with a caliber greater than .22.”

The requirement is intended to help track or stop the sale of firearms to Mexican drug cartels (presumably, other than those that ATF allows to be sold to them).

The ruling can be found at National Shooting Sports Foundation v. Jones.

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Good news for Governor Martinez, as SCOTUS upholds Katie’s Law

by Emil J. Kiehne Posted on June 3, 2013

Governor Susana Martinez is an advocate of Katie’s Law, which was named after slain NMSU student Katie Sepich, and which allows police to take DNA samples from those arrested for crimes, but who have not yet been convicted. She therefore filed this amicus brief at the Supreme Court to support Maryland’s version of the law.

This morning, the Supreme Court upheld the law against a Fourth Amendment challenge in Maryland v. King. Justice Kennedy wrote the majority opinion, being joined by Chief Justice Roberts and Justices Thomas, Breyer, and Alito. Justice Scalia wrote a dissenting opinion, in which he was joined by Justices Ginsburg, Sotomayor, and Kagan.

UPDATE: For more on this story, including Governor Martinez’s reaction, Milan Simonich has this post on his blog for the El Paso Times.

 

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NM Appellate Practice Section Newsletter for Spring 2013 now available

by Emil J. Kiehne Posted on May 31, 2013

Appellate News, the quarterly newsletter of the State Bar of New Mexico Appellate Practice Section, is now available here.

This issue contains:

1.  A message from Ed Ricco, chair of the section, in which he announces that Judge Jimmy V. Reyna of the U.S. Court of Appeals for the Federal Circuit will be speaking at the New Mexico Appellate Practice Institute this November.

2.  An interview with New Mexico Court of Appeals Judge Miles Hanisee, conducted by Jocelyn Drennan and Elizabeth Martinez.

3.  And finally, an article that I wrote, “A Guide to Blogs for the Appellate Lawyer.”

 

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NM Supreme Court rules against Halliburton in dispute over employment arbitration agreement

by Emil J. Kiehne Posted on May 31, 2013

Yesterday, in Flemma v. Halliburton Energy Services, Inc., the New Mexico Supreme Court ruled that an employment arbitration agreement was unconscionable under New Mexico law.

As explained in Justice Barbara Vigil‘s opinion, the arbitration agreement in question allowed Halliburton to unilaterally modify the arbitration agreement, or the rules under which an arbitration would be conducted, except when an arbitration proceeding has already begun. Continue reading →

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