Journals
Volume 33, No. 3, Summer 2003
Intentional Infliction of Emotional Distress between Spouses: New Mexico’s Excessively High Threshold for Outrageous Conduct
Tiffany Oliver
Courts in New Mexico have made it prohibitively difficult for a spouse to recover for intentional infliction of emotional distress (IIED). Pursuant to the Restatement (Second) of Torts, "[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Although New Mexico recognizes the tort of intentional infliction of emotional distress, there has never been a reported case in which a mentally or emotionally abused spouse received compensatory damages for this tort claim. Over ten years ago, in Hakkila v. Hakkila, the New Mexico Court of Appeals overturned a district court’s judgment awarding damages for a spouse’s intentional infliction of emotional distress, and since that time this claim has not been recognized in the spousal context. As a result of the Hakkila case, New Mexico has fallen out of step with developing law in the rest of the nation and fails to protect spouses who are mentally and emotionally abused by their significant others. This comment will argue that New Mexico’s high threshold for outrageous conduct creates a difficult, if not impossible, standard of proof for intentional infliction of emotional distress in the context of marriage. The initial problem this comment addresses is that of interspousal immunity, which once barred all tort actions between spouses. This comment will go on to examine the development of the tort of intentional infliction of emotional distress both in the United States and in the State of New Mexico. It then analyzes New Mexico’s rationale for its failure to recognize this claim in the marital context. Next, this comment details how other jurisdictions deal with this issue of law by exploring the types of conduct these jurisdictions consider sufficiently outrageous to recover for intentional infliction of emotional distress. This comment will conclude with a critique of New Mexico’s legal inconsistencies with both the case law of others states and its own judicially created body of law.
The Death of Implied Causes of Action: The Supreme Court’s Recent Bivens Jurisprudence and the Effect on State Constitutional Tort Jurisprudence: Correctional Services Corp. v. Malesko
Andrea Robeda
The Federal Bill of Rights was designed to codify the civil rights of the citizens of a newly founded nation and guarantee protection from the government’s invasion of those rights. Those rights were codified and essentially guaranteed, but they served as a check on the government, not as a mechanism for individuals to assert violations of their rights against the government in the courts. The idea that an individual could assert a cause of action and collect damages against a government official for violation of constitutional rights is a relatively recent phenomenon. The Supreme Court provided for recovery against government officials for violation of individual constitutional rights in Bivens v. Six Unknown Federal Narcotics Agents. Since that decision, the Court has reluctantly implied causes of action for damages directly under the Constitution. This note seeks to analyze the reasoning for this reluctance through an analysis of the Court’s decision in Correctional Services Corp. v. Malesko.
Why Gunaji v. Macias Matters to Candidates and Voters: Its Impact on New Mexico Election Law
Ocean Munds-Dry
In Gunaji v. Macias, the New Mexico Supreme Court interpreted Article Two, Section Eight, of the New Mexico Constitution for the first time in an election contest. The court held that while the election was not "free and open," the proper remedy was not to hold a new election, as the Contestants requested, but to reject the votes in the precinct where the improper votes were cast. In order to reach this decision, the court first addressed three preliminary issues: mootness, standing, and source of remedy. The court held that although the case was moot, it was an issue of substantial public interest and capable of repetition. The court also found that the candidates had standing to assert the constitutional claim on behalf of voters. And finally, because the court did not find a provision in the Election Code that addressed the circumstances in this case, it held that it could fashion a remedy outside of the statute. This note will examine the court’s findings on mootness and standing, the court’s interpretation and holding of the "free and open" elections clause of the New Mexico Constitution, the court’s analysis of the power to fashion a remedy beyond a statute and chosen remedy, the court’s rationale, and the implications of this decision on future New Mexico election contest cases.
Are There Any Limits on Judicial Candidates’ Political Speech after Republican Party of Minnesota v. White?
Catherine Ava Begaye
Republican Party of Minnesota v. White is the anticipated collision of two powerful forces present during state judicial elections: constraints imposed to protect the value of an independent, impartial judiciary, versus the value of a judicial candidate’s freedom of speech during those judicial elections. While the state has an interest in both, it is often more willing to forfeit the informative value of what a candidate may say for the elevated interest of protecting the value of an independent and impartial judiciary. In White, the Supreme Court of the United States has rejected the state’s choice. In a five-to-four split, White supported a state’s decision to elect its bench but made clear that the state must also take the bitter with the sweet; that is, a state must follow the constitutional consequences of its choice by forfeiting some of its interest in an impartial and independent state judiciary. The Court deemed the restraints through the Minnesota Judicial Speech Codes, which were intended to prevent a judicial candidate from giving voice to personal beliefs and private biases, an unconstitutional means of preventing candidates from attempting to inform the voters of their qualifications for judicial office. A state forfeits its interest in an impartial, and the appearance of an impartial, judiciary when it decides to elect its bench, and the state must now allow candidates to fully exercise their First Amendment political speech right.
The Sarbanes-Oxley Act: Is the Investing Public Really Any Better Off?
Emily Williams
On July 30, 2002, President Bush signed legislation intended to address the corporate accounting issues that arose in the corporate scandals of late 2001 and 2002. The Sarbanes-Oxley Act, designed to "protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to securities law," passed Congress in the wake of the Enron bankruptcy and other corporate accounting scandals. The Act attempts to address a number of the issues related to publicly traded corporations by creating a new federal oversight agency, establishing auditor independence rules, creating new laws to address corporate responsibility, enhancing financial disclosure requirements, addressing analyst conflicts of interest, creating new corporate and criminal fraud laws, and enhancing penalties for white collar crime. One of the key ways the Sarbanes-Oxley Act attempts to protect investors and restore confidence is by addressing corporate accounting issues. The Act creates a new federal agency to oversee accounting firms that perform audits, the Public Company Accounting Oversight Board (PCAOB). The Act also establishes new rules and procedures for auditors and issuers. This comment analyzes the provisions of the Sarbanes-Oxley Act that attempt to improve corporate accounting and examines how the Act fits into the already complicated statutory and regulatory scheme designed to protect and inform the investing public. This comment argues that, although the Sarbanes-Oxley Act is a noteworthy attempt at accounting reform, it is largely a compilation of mild reforms, many of which previously existed as Securities Exchange Commission (SEC) rules. While the Act contains a few valuable provisions, the legislation’s bark is much greater than its bite. Furthermore, the legislation leaves to the resource-strapped SEC and the newly formed PCAOB the duty to enforce and monitor the majority of the provisions.
Summary Judgment in New Mexico Following Bartlett v. Mirabal
Christopher David Lee
In 1986, the U.S. Supreme Court issued the Celotex trilogy of decisions and established a new approach to summary judgment procedure in the federal courts. In 2000, the New Mexico Court of Appeals declined to adopt this approach in Bartlett v. Mirabal. The Bartlett decision followed a two-part analysis of the relationship between summary judgment procedure in New Mexico and the federal courts. First, the Bartlett court examined whether New Mexico courts had already adopted the federal standard. Concluding that New Mexico had not adopted the Celotex approach to summary judgment, the Bartlett court proceeded to consider the question of whether New Mexico should adopt the Celotex approach. The Bartlett court ultimately concluded that policy considerations favored retaining New Mexico’s "traditional" approach to summary judgment over adopting the standard articulated for the federal courts in the Celotex trilogy. Judge Alarid, specially concurring in Bartlett, found, however, that New Mexico courts had exhibited a tendency to treat the New Mexico and federal summary judgment standards as interchangeable and suggested that New Mexico would benefit from the adoption of the Celotex standard.
Freedom of Speech and Freedom from Student-on-Student Sexual Harassment in Public Schools
Lynn Mostoller
Two recent cases emphasize the difficulty public school administrators face in walking the line between sexual harassment liability and the unconstitutional suppression of student speech. On February 14, 2001, the Third Circuit ruled that the State College Area School District (SCASD) anti-harassment policy was unconstitutionally overbroad. The challenge was brought by two Christian students and their legal guardian, David Saxe, a member of the Pennsylvania State Board of Education, because "they feared they were likely to be punished under the Policy for speaking out about their religious beliefs, engaging in symbolic activities reflecting those beliefs, and distributing religious literature." Of particular concern was their "right to speak out about the sinful nature and harmful effects of homosexuality."
Two weeks later, a U.S. District Court in Nevada ruled that gay high school student Derek Henkle may have a constitutionally protected right to disclose his sexuality. Henkle alleged that other students had repeatedly and severely harassed him. School administrators responded to the problem by transferring him to new schools with instructions not to talk about his sexual orientation. In addition to possible First Amendment violations, the court further held that both the individual school administrators and the school district could be held liable for punitive damages under a Title IX sexual harassment claim. On August 28, 2002, this case settled, with Henkle receiving $451,000 from the school district. In addition, the school district implemented numerous policy changes in response to the ruling, most notably an express recognition that "students’ freedom of expression includes the rights to disclose their sexual orientation at school and to discuss issues related to sexual orientation in school settings." Fifteen additional changes were made to the district policy on discrimination, harassment, and sexual harassment, all in response to Henkle’s suit.
The source of legal support for these two cases sparks additional interest in these issues. Derek Henkle was represented by Lambda Legal Defense Fund, "a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgendered people, and people with HIV or AIDS through impact litigation, education, and public policy work." In Saxe v. State College Area School District, David Saxe was represented by the American Family Association Center for Law and Policy. The Center represents Christian litigants in cases "involving first amendment free speech and free exercise rights as well as the constitutional issues involved in the continuing battle against pornography and obscenity." Adding the perspectives of the litigation support organizations to the oppositional posture of the cases particularly intensifies the contrary holdings. These courts are moving in opposite directions with respect to harassment on the basis of sexual orientation and interest in the decisions extends far beyond the individual litigants.
From a First Amendment perspective, however, the cases are reconcilable. In both cases, protected speech in the public school setting is expanding: gay teens are empowered to discuss their sexual orientation at school without interference and Christian students may voice their religious opposition to the homosexual lifestyle. This comment will explore the tension between First Amendment and peer-sexual harassment law and the difficulties that tension poses for public school administrators.
