Abuse of licensing statute to stifle unwanted criticism violates 1st Amendment, says NM Court of Appeals

by Emil J. Kiehne Posted on May 13, 2013

A recent case from the New Mexico Court of Appeals demonstrates that professional licensing statutes exist to protect consumers and members of the public, not to shield the tender feelings of government officials from unwelcome criticism.

William Turner, a board member of the Middle Rio Grande Conservancy District, was asked by one of his constituents to inspect the District’s irrigation ditches. Turner, who has taken courses in civil engineering, but is not a licensed engineer, did so and produced a report which criticized the District’s management of the irrigation ditches, and in particular criticized the conduct of the District’s chief engineer, Subhas Shah. Turner presented his report at a District board meeting, while saying that he wasn’t a licensed engineer, and wasn’t pretending to be one. Turner had no client and received no payment for his report, which expressed his own opinions.

A District “contract employee” then reported Turner to the New Mexico Board of Licensure for Professional Engineers and Professional Surveyors, complaining that he was engaging in the forbidden practice of engineering without a license. After all, you can’t have just any old riff-raff expressing opinions without a piece of paper from the government saying they’re qualified to do so.  Continue reading →

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NM Supreme Court adopts rule from Hadley v. Baxendale in a case that proves Murphy’s Law is alive and well

by Emil J. Kiehne Posted on April 29, 2013
Hydroponic Tomato Farm Copyright, Giancarlo Dessi Used With Permission Under Creative Commons License
Hydroponic Tomato Farm
Copyright, Giancarlo Dessi
Used With Permission Under Creative Commons License

Don’t forget to pay your electric bill.

That’s one lesson to be learned from Sunnyland Farms, Inc. v. Central New Mexico Electric Cooperative, Inc., a recent decision from the New Mexico Supreme Court written by Justice Edward Chavez, which settles the rule on consequential damages in New Mexico.

Sunnyland Farms, which operated a hydroponic tomato-growing facility in Estancia, did not pay its electric bill, apparently due to some confusion about the billing. Central New Mexico Electric Cooperative then cut off electric power on September 8, 2003, but without providing the usual 15-day notice to Sunnyland Farms to pay the overdue bill.

The very next day, as bad luck would have it, Sunnyland Farms employees engaged in welding near some flammable materials, which started a fire. The employees attempted to put out the fire with hoses, but with no electricity going to the pumps, there was no running water, nor did Sunnyland Farms think to have any back-up source of power. The fire department similarly had no access to well water due to the lack of electricity. The fire ultimately destroyed several buildings.

Sunnyland Farms then sued the Cooperative in tort and contract, claiming that it suffered $21.4 million in damages from having its electricity cut off, including $13.7 million in consequential damages for the net value of the lost crops it would have been able to grow and sell had the buildings not been destroyed. Continue reading →

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NM Court of Appeals reinstates “green” building codes

by Emil J. Kiehne Posted on April 12, 2013

Several news reports, including this one from KRQE, state that the New Mexico Court of Appeals has reinstated the “green” building code regulations enacted during the last days of Governor Bill Richardson’s administration. The regulations were revoked in 2011 after Governor Susana Martinez took office, but the Court of Appeals, in an opinion written by Judge Michael Bustamante, held that the Construction Industries Commission did not offer any reasons for revoking the regulations. New Mexico law requires that administrative agencies explain the reasons for their decisions, and holds that the separation of powers doctrine prohibits a reviewing court from supplying reasons to uphold an agency’s decision. Continue reading →

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NM Court of Appeals holds oral argument at Grants High School

by Emil J. Kiehne Posted on April 2, 2013

Continuing with its program of holding oral arguments in high schools throughout New Mexico, last week the Court of Appeals heard argument at Grants High School in a case (State v. Judith Dean) involving methamphetamine trafficking, according to this report in the Cibola Beacon.

The report notes that the Court ruled in favor of the defendant at the hearing. I assume the Court issued its ruling on the spot so that students in the audience would not have to wait several weeks, or months, to learn its decision.

The Court of Appeals is scheduled to hear oral argument on April 26 at another high school, the New Mexico Military Institute, in the case of State v. Samantha Garcia.

 

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Tenth Circuit Grants Hobby Lobby En Banc Hearing

by Emil J. Kiehne Posted on April 2, 2013

This past Friday, the Tenth Circuit issued this order granting Hobby Lobby’s petition for an initial en banc hearing in Hobby Lobby Stores, Inc. v. Sebelius.  This means that instead of being heard by a three-judge panel, as usually occurs, the appeal will be heard by the entire court.

Hobby Lobby is challenging the Obama Administration’s controversial contraceptive mandate. I hope to have a post here soon explaining why Hobby Lobby should, and probably will, prevail because the mandate clearly violates the federal Religious Freedom Restoration Act.

Hobby Lobby’s attorneys from the Becket Fund for Religious Liberty have set up this page with more information about the case. If you know of any other parties, or amici, who have set up informational pages about the case, please let me know.

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New Mexico Court of Appeals holds that Anti-SLAPP Statute does not apply to judicial proceedings

by Emil J. Kiehne Posted on March 14, 2013

A “strategic lawsuit against public participation,” or SLAPP, is a lawsuit that is intended to punish members of the public for criticizing or opposing actions that the plaintiff wants a public body to take. The usual objective of such a lawsuit is not necessarily to win, but rather to silence one’s opponents.

These lawsuits take many forms. For example, some people consider the recent defamation lawsuit filed by Beef Products, Inc. against ABC News over its “pink slime” reporting to be an example of such a lawsuit.

In response to the perceived problem posed by SLAPPs, many states, including New Mexico, have enacted “anti-SLAPP” statutes. New Mexico’s statute, NMSA 1978, § 38-2-9.1, allows defendants who believe they are being sued in retaliation for protected speech to file an expedited motion to dismiss.

This brings us to Cordova v. Cline, a unanimous decision issued earlier this week, and written by Chief Judge Roderick Kennedy. Continue reading →

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NM Attorney General Gary King signs amicus brief supporting same-sex marriage

by Emil J. Kiehne Posted on February 28, 2013

New Mexico Attorney General Gary King has joined the attorneys general of the District of Columbia and 12 other states today in filing this amicus brief urging the Supreme Court of the United States to affirm the Ninth Circuit’s judgment striking down California’s ban on same-sex marriage.

Hat tip to SCOTUSblog for this news. You can read more about the amicus brief here, and SCOTUSblog’s page on the Hollingsworth v. Perry case, which contains links to all other briefs filed in the case, is here.

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Senate confirms Judge Robert Bacharach to the Tenth Circuit

by Emil J. Kiehne Posted on February 26, 2013

The Blog of the Legal Times has this report on the Senate’s 93-0 vote to confirm U.S. Magistrate Judge Robert Bacharach to the Tenth Circuit.  Although Judge Bacharach’s nomination seems to have been uncontroversial, he still had to wait over 260 days for a floor vote.  Jennifer Palmieri of the White House Blog expresses the Obama administration’s opinion of this delay here.

Although Democrats decry the nature of the judicial confirmation process, they are also quick to obstruct highly-qualified nominees (e.g. Miguel Estrada) when the President is not of their party.

Congratulations to Judge Bacharach on surviving this process!

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Tenth Circuit holds that 2nd Amendment does not protect right to concealed carry

by Emil J. Kiehne Posted on February 25, 2013

On Friday, the Tenth Circuit held, in Peterson v. Martinez, that the Second Amendment does not protect a right to carry a concealed firearm. The plaintiff, a resident of Washington state, also claimed that Colorado’s concealed carry statutory scheme, which effectively prevented him from obtaining a concealed carry license because he was an out-of-state resident, violated the Constitution’s Privileges and Immunities Clause, but the Tenth Circuit rejected that claim as well.

If you are wondering whether the New Mexico Constitution provides any greater protection for a right to carry a concealed firearm, I think the answer is “no.” Article II, Section 6 provides that “No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.” (emphasis added). In my opinion, the language in italics pretty clearly means that the New Mexico Constitution does not protect a right to carry a concealed firearm.

This language does not, however, mean that concealed carry is prohibited.  The New Mexico Supreme Court held, in State ex rel. New Mexico Voices for Children, Inc. v. Denko, 2004-NMSC-011, 135 N.M. 439, 669 P.3d 458, that Article II, Section 6 does not prohibit the legislature from enacting laws allowing the carrying of concealed weapons.  And indeed, the Legislature has enacted such a law.  See NMSA 1978, § 29-19-1 et seq.

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10th Circuit holds that corporate entities likely can’t bring hostile work environment claims

by Emil J. Kiehne Posted on February 8, 2013
Denver International Airport ©2007 Sox23, used with permission in accord with Creative Commons Attribution-Share Alike 3.0 Unported license.
Denver International Airport
©2007 Sox23, used with permission in accord with Creative Commons Attribution-Share Alike 3.0 Unported license.

The Tenth Circuit held yesterday, in Allstate Sweeping, LLC v. Black, that an artificial entity likely cannot bring a hostile work environment claim under the Equal Protection Clause or 42 U.S.C. § 1981.

The plaintiff, Allstate Sweeping, LLC, was owned by two white women. It had a contract to perform pressure-washing services at Denver International Airport. The Airport assigned Calvin Black, an African-American man, to supervise Allstate Sweeping’s performance under the contract.

Allstate Sweeping alleged that Mr. Black engaged in an unremitting course of hostile conduct against it and its employees, which was based on his supposed hostility to the race and gender of its owners. Among other things, Allstate Sweeping alleged that Mr. Black’s conduct created a hostile work environment that caused it to lose money under the contract. Mr. Black moved for summary judgment on this claim, arguing that he was entitled to qualified immunity because it was not clearly established that § 1981 or the Equal Protection Clause recognized such a claim.  Continue reading →

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