“Editorial: Selections for Supreme And Appeals Courts”

by Emil J. Kiehne Posted on October 19, 2012

Earlier this week, the editors at the Albuquerque Journal issued their endorsements for the contested races in the New Mexico Supreme Court and New Mexico Court of Appeals, endorsing present Justice Paul Kennedy and present Judge J. Miles Hanisee, both of whom were appointed by Governor Martinez.

The paper also recommends that Justice Richard Bosson, as well as Judges Michael Vigil and Roderick Kennedy be retained.

My understanding is that judges up for retention must obtain 57% of the vote, though I don’t know why that is the magic number.  Can anyone enlighten me on this?

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Programming Note

by Emil J. Kiehne Posted on October 18, 2012

As you may have noticed, I haven’t posted in a while.  I went on a family vacation for over two weeks, and arranged for a guest blogger to take over, but he ended up not being able to do so.  In any event, I’m back now and plan to post new content very soon!

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Court of Appeals holds interlock devices are required for drug-impaired drivers

by Emil J. Kiehne Posted on September 24, 2012

Tara Valdez was convicted of driving while intoxicated.  No proof existed that she had drunk any alcohol, but a blood test detected the presence of oxycodone, diazepam, and nordiazepam in her system.

A New Mexico statute requires that anyone convicted of DWI be required to obtain an ignition interlock device and install it in his or her vehicle.  When the device is installed, the vehicle cannot be started until the driver blows into it, and if the device detects a blood-alcohol level above a certain limit, then the vehicle will not start.  (I believe the device is fairly expensive to purchase and install, and having an interlock device in one’s car would surely be inconvenient, not to say embarrassing.)

“But hold on,” Valdez said, “interlock devices can only detect alcohol; they cannot tell whether a driver is impaired by other drugs.  And because I was not convicted of driving under the influence of alcohol, forcing me to install the device in my vehicle would be utterly useless.  The law irrationally treats me in the same way that it treats those who have been convicted of driving while drunk on alcohol.  Therefore, the statutory requirement violates my constitutional right to the equal protection of the laws.”  (Of course, I’m paraphrasing here). Continue reading →

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“Supreme Court Mulls Affirmative Action, Class Actions In Fall Docket”

by Emil J. Kiehne Posted on September 19, 2012

Daniel Fisher at Forbes has this interesting preview of some of the cases that businesses will be watching at the U.S. Supreme Court this fall.  You should also check out his blog, Full Disclosure.

This reminds me that the first Monday in October — the equivalent of Opening Day to us appellate nerds — is only 12 days away!

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You’ve got to know when to fold ’em: Tenth Circuit slaps down EEOC for frivolous lawsuit

by Emil J. Kiehne Posted on September 18, 2012
This hand was better than the EEOC’s

The first paragraph of the Tenth Circuit’s recent decision in EEOC v. TriCore Reference Laboratories says: “Substantiating the old saw that no good deed goes unpunished, the EEOC persisted in litigating this case in spite of clear evidence that TriCore went well beyond ADA requirements in trying to oblige an employee.”

When an appellate court talks about you like that at the beginning, it’s a good bet that the rest of the opinion isn’t going to be pleasant either.  And for the EEOC, it certainly wasn’t.  Continue reading →

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“The tangled web of conflicting rights”

by Emil J. Kiehne Posted on September 17, 2012

National op-ed columnist George Will has this column in the Washington Post about Elane Photography, LLC v. Willock, which was decided by the New Mexico Court of Appeals in May.  The New Mexico Supreme Court has granted Elane Photography’s petition for certiorari.  I am helping to represent Elane Photography in this matter, so what I can say is limited, but Will’s column is worth reading.

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“Candidate picked for Supreme Court seat”

by Emil J. Kiehne Posted on September 17, 2012

Due to the press of business, I’ve been a little remiss in posting here lately.  In the interest of catching up on recent developments, Crystal Gutierrez has this story reporting that the Republican Party has selected Justice Paul Kennedy as its nominee for the New Mexico Supreme Court seat recently vacated by Justice Patricio Serna.

Justice Kennedy, who was sworn in as a justice last week, will face the Democratic nominee, Chief Judge Barbara Vigil of the First Judicial District Court, in the general election on November 6.

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Governor Martinez appoints Paul Kennedy to New Mexico Supreme Court

by Emil J. Kiehne Posted on September 6, 2012

According to this report in the Albuquerque Journal, Governor Susana Martinez has appointed Albuquerque lawyer Paul Kennedy to the open seat on the New Mexico Supreme Court.

Justice Kennedy (who previously served as a justice on the Court in 2002) is highly-respected in the legal community.  I have worked with him on several matters, and can say from that experience that he is a terrific lawyer who will be an asset to the Court.

So congratulations are in order for Justice Kennedy!  He will serve until at least December 31.  If he chooses to seek the Republican nomination, then he will run against the Democratic nominee, Chief Judge Barbara Vigil of the First Judicial District Court, in the November election.

UPDATE: According to this report by Whitney Jones at KOB.com, Justice Kennedy does plan to seek the Republican nomination.  The Republicans will choose their nominee on Saturday.

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

by Emil J. Kiehne Posted on September 5, 2012

Don’t Fence Me In! Photo Credit: Public Domain from Wikimedia Commons

One aspect of New Mexico law that surprises city slickers from Back East (besides the fact that we are actually part of the United States) is that livestock owners are generally not responsible for damages caused by their animals to the unfenced property of others.  Thus, if you don’t want your neighbor’s cattle to trample on your vegetable garden, then you had better build a good fence, because it’s not your neighbor’s responsibility to keep his cows from eating the tops of your carrot plants.

Well, the good folks on the Bernalillo County Commission, perhaps thinking that this rule is not very neighborly, passed an ordinance making it illegal to allow one’s animals to run at large on streets, public property, or private property without the owner’s permission.  Later, the County filed criminal charges against Ivan Benavidez, accusing him of allowing six of his cattle to run free on a public road and other public property. Continue reading →

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“You Forgot to Swear In the Jury? No Prob”

by Emil J. Kiehne Posted on September 3, 2012
Swear them in! Photo Credit: Dalisays at Wikimedia Commons

Joe Palazzolo has this report from the Wall Street Journal’s Law Blog about the Tenth Circuit’s decision in United States v. Turrietta, which reinforces the lesson that a lawyer usually cannot sit by while error occurs and successfuly take advantage of it later.  What makes this case interesting is that the error at issue occurred at a point in the trial that nearly all participants take for granted — the swearing-in of the jury.

Turrietta was charged with assaulting a law enforcement officer.  At his trial in federal court, the jury was not sworn.  Turrietta’s attorney noticed this, but decided not to say anything about it, hoping to assert the failure as error warranting a new trial should the jury decide that Turrietta was guilty.

The jury found that Turrietta was guilty as charged. After the verdict was read and the jury discharged, defense counsel claimed the jury’s verdict was a nullity because the jury was not sworn.  The district court did not grant relief, and on appeal Turrietta asserted that the district court’s failure to swear in the jury deprived him of his Sixth Amendment right to a jury trial. Continue reading →

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