Steve Terrell’s Roundhouse Roundup has this post announcing that Judge Roderick Kennedy will be sworn in as the new Chief Judge of the New Mexico Court of Appeals tomorrow. He will be replacing Chief Judge Celia Foy Castillo, who is retiring today.
Congratulations to Chief Judge Kennedy!
Recently legal writing guru Bryan Garner had an interesting piece on when you can ignore a point raised by your opponent on appeal.
While that may be possible in some circumstances, it’s probably not a good idea to ignore an opponent’s argument that your appeal should be dismissed entirely. But apparently, that’s what the appellant did in New Mexico Cattle Growers’ Association v. New Mexico Water Quality Control Commission. In an opinion by Judge Roderick Kennedy, the Court of Appeals dismissed an appeal by the New Mexico Cattle Growers’ Association.
The Cattle Growers had opposed a rule regarding waters on Forest Service lands that several state administrative agencies proposed to the Water Quality Control Commission. The Commission adopted the rule, but exempted cattle ranchers with grazing permits from the new requirements. The Cattle Growers appealed.
The state agencies moved to dismiss the appeal on the ground that only a party “adversely affected” by a new rule is entitled to appeal, and argued that because the Cattle Growers’ members were exempt from the new rule, the Cattle Growers’ Association could not appeal.
For reasons not disclosed in the opinion, the Cattle Growers’ Association did not respond to this argument. Although not obligated to do so, the Court nevertheless reviewed the testimony presented by the Cattle Growers’ witnesses at the agency rulemaking hearing, and did not find any evidence that the new rule would negatively affect the Cattle Grower’s members.
It may well be that no evidence of adverse effect existed, such that the appeal would have been dismissed even if the Cattle Growers had responded to the argument. But in most cases it’s a bad idea to ignore an effort to dismiss your appeal. It creates the damaging impression that you have no good argument to make, and you can’t depend on the appellate court to search the record for you (appellate judges are busy and will probably not be inclined to do so). And even where the Court’s judges do examine the record on their own, as they did here, they may well overlook some piece of evidence or legal argument that might have saved the appeal.
In ranching terms, a motion to dismiss your appeal should be treated like a bull getting ready to charge in your general direction. You may have various options, but ignoring the bull is not one of them.
According to this story in the Las Cruces Sun-News, Governor Susana Martinez has appointed Judge J. Miles Hanisee to the Court of Appeals seat being vacated by Chief Judge Celia Foy Castillo.
Governor Martinez appointed Judge Hanisee to the Court of Appeals in 2011, but he was defeated by Judge Monica Zamora in last month’s general election. Judge Hanisee will have to run in the 2014 general election to keep his new seat.
Congratulations to Judge Hanisee on this second chance.
The Supreme Court has announced that the investiture of District Court Chief Judge Barbara Vigil as a new justice on the New Mexico Supreme Court is scheduled for this Friday, December 4, at 4:00 p.m. at the Supreme Court Building in Santa Fe. The ceremony will be followed by a reception in the Supreme Court Library. The public is invited to attend.
If you would like to know more about Justice-elect Vigil, here’s my interview with her a few weeks ago.
Yesterday the New Mexico Judicial Nominating Commission met in Santa Fe to interview seven applicants for the New Mexico Court of Appeals seat being vacated by Chief Judge Celia Foy Castillo. The Commission voted to send the following three candidates to Governor Susana Martinez:
1. Judge Miles Hanisee, who presently sits on the Court of Appeals, but whose seat will soon be taken by Judge Monica Zamora, who prevailed in last month’s election.
2. Chief Judge Judith Nakamura of the Bernalillo County Metropolitan Court.
3. Arthur Pepin, Director of the New Mexico Administrative Office of the Courts.
Governor Martinez will have until January 3 to name one of these three to the open seat.
Last Wednesday was the deadline for interested lawyers to file applications with the Judicial Nominating Commission to fill the seat being vacated by Chief Judge Celia Foy Castillo, who is not only entering upon a well-deserved retirement, but is also thrilled that her beloved Fighting Irish are 12-0.
So who are the hopeful applicants? Let’s take a look…
David K. Brooks. According to the Bar Bulletin, he is an attorney at the New Mexico Department of Energy, Minerals and Natural Resources. I’m afraid I was unable to find out much about him on the internet.
John H. “Jack” Clough, until recently the town attorney for Taos. This article in the Taos News contains some interesting information about his long career, including that he once argued a case before the Supreme Court of the United States. That case was Lindsey v. Normet, 405 U.S. 56 (1972), which involved a constitutional challenge to Oregon’s statutory procedure for the eviction of residential tenants.
Judge Ned Fuller was the Republican nominee for the Court of Appeals in 2010, but was defeated by Robert Robles. Fortunately, a biographical page from his campaign website is still active, from which we learn that he learned to speak Japanese while serving as a Mormon missionary in Nagoya, Japan, later graduated with honors from BYU Law School, and served for three years as a Workers’ Compensation Judge. More information about him is available in this story in the Santa Fe New Mexican about his 2010 campaign.
Judge Miles Hanisee is presently a judge on the Court of Appeals, but was defeated in this year’s general election by District Judge Monica Zamora. I had the opportunity to interview him before the election, which you can read here.
Michelle Hernandez is one of my law partners (her Modrall Sperling profile is here), and at the risk of sounding biased, I can tell you she is a hard-working and very talented lawyer. She is a graduate of UCLA Law School, and an expert in health law. Recently she unsuccessfully sought the Democratic nomination for the New Mexico Supreme Court, but you can watch an interview of her here, and her remarks to Democratic central committee members here, here, here, here, here, and here.
Judge Judith Nakamura of the Bernalillo County Metropolitan Court, a Republican who was appointed to that post by former Governor Gary Johnson. In 2010, when she last faced the voters, the Judicial Performance Evaluation Commission recommended that she be retained. I have never appeared before her, but she seems to be a tough person – she had a run-in with Governor Richardson, barred police from carrying guns in the courthouse, and the Wall Street Journal had this article about her successful battle with cancer.
Correction: I referred to Judith Nakamura as a “Judge” of the Bernalillo County Metropolitan Court, when in fact she is the Chief Judge. In addition, Chief Judge Nakamura sent me a very nice e-mail to explain that Governor Johnson did not appoint her to the Metropolitan Court. Rather, she defeated Governor Johnson’s nominee in the Republican primary, and then won the general election. Chief Judge Nakamura also explained that the courthouse where she works was designed with a gun room for storing weapons carried by law enforcement officers, and that the judges of the Court enacted the gun policy.
Arthur W. Pepin is the Director of New Mexico’s Administrative Office of the Courts. This online interview about his work also contains a biographical sketch, which states that Mr. Pepin is a graduate of the University of Washington Law School, served in the Army JAG Corps, and worked in Philadelphia and New Jersey before coming to New Mexico, where he was head of the Attorney General’s Appeals Division under Patricia Madrid.
Good luck to all of the applicants! The Judicial Nominating Commission will interview all of the applicants on Tuesday, December 4, beginning at 9:00 a.m. in the Court of Appeals courtroom in the Supreme Court Building in Santa Fe. The public is invited to attend.
Milan Simonich has this report in the Carlsbad Current-Argus, stating that Governor Susana Martinez plans to file an amicus brief in the Supreme Court of the United States in Maryland v. King.
The question the justices face is whether the Fourth Amendment allows states to collect and analyze DNA from people arrested and charged with serious crimes, but who have not yet been convicted. Governor Martinez plans to support the constitutionality of Maryland’s practice of collecting DNA from suspects.
SCOTUSblog has this page devoted to the case. The Court only granted review on November 9, so it will be some weeks or months before Governor Martinez’s amicus brief is posted there, but I will link to it when it becomes available.
And by the way, if SCOTUSblog is not on your daily reading list, it should be.
Earlier this month the NM Court of Appeals, in Vinyard v. Palo Alto, Inc., decided the proper method for calculating the weekly average in a workers’ compensation case when the injured employee has two jobs. The proper method, according to Judge Roderick Kennedy, is to calculate the average wage for each job separately, and then average those results to arrive at “a single aggregate average weekly wage.”
The Court also considered an award of attorney’s fees in favor of the worker. The award seems to have been justified — the worker’s attorney was awarded $15,000 for obtaining just over $86,000 in benefits. The employer argued that worker’s attorney should have been required to submit evidence itemizing the hours spent on the case.
The Court rejected this argument, instead holding that all thiat is required is “evidentiary support for a fee award requires the presentation of sufficient facts for the WCJ [i.e.workers’ compensation judge] to rule whether at a hearing or not.” While the opinion does not explain in detail, it appears that the Court believed that the workers’ compensation judge had ample opportunity to view the work done by worker’s attorney, as well as the positive results, and therefore the workers’ compensation judge did not need to review the attorney’s timesheets to arrive at a fair award.
I interpret this decision as holding that a worker’s attorney need not always submit timesheets in order to justify a fee award, but nothing in Judge Kennedy’s opinion forecloses the possibility that there may be situations in which a worker’s fee request may need to be supported by attorney timesheets, or in which an employer might be justified in asking to review them.
District Judge Ross Sanchez has this profile of retired Justice Patricio Serna in today’s Albuquerque Journal, which recounts his rise from rural poverty in Catron County to the height of New Mexico’s legal profession.
I would just like to echo what others have said about Justice Serna — he’s a thoroughly decent human being; his integrity and humility are examples to all of us; and his acts of personal kindness (which he never discusses) to those around him are legendary. (Full disclosure: My family’s roots are also in Catron County, and we’ve known and liked him for a long time!).
Tomorrow night, a retirement tribute will be held to honor Justice Serna’s service to New Mexico and to establish a scholarship in his name at the University of New Mexico Law School. The event will be held at the Hotel Albuquerque, with a reception beginning at 6 p.m. and a dinner from 7-9 p.m. Tickets are $100 per person. If you are interested in attending (and you should be), call the State Bar at 505-797-6034 to find out if any tickets are still available.
Yesterday, Chief Judge Celia Foy Castillo announced her retirement from the New Mexico Court of Appeals, according to this report.
Chief Judge Castillo, who hails from Silver City, was elected to the Court in November 2000, and since then has been a highly-respected and hard-working judge. Her retirement, while well-deserved, will be a loss to the citizens of New Mexico.
The Judicial Nominating Commission has posted its official announcment of the vacancy here. Applications for the seat will be due on November 21, and the Commission will meet to consider any applicants on Tuesday, December 4, 2012 at 9:00 a.m. at the Court of Appeals Building in Albuquerque.
UPDATE: Either the location of the interviews was changed, or I got it wrong the first time, but in any event, the Judicial Nominating Commission will be meeting at the Court of Appeals courtroom in the Supreme Court Building in Santa Fe, not the Court of Appeals Building in Albuquerque, as I indicated above.
