Arrest Warrant v. Mexican Lawmaker Julio Cesar Godoy-Toscano Can Now Be Executed.

29 12 2010

Mexico’s Lower Chamber of Congress,  the Cámara de Diputados, voted overwhelmingly (384-2-21) last Dec. 14 to strip Mexican Lawmaker Julio Cesar Godoy Toscano from the Constitutional Protection from prosecution. Godoy-Toscano has an arrest warrant for his alleged commission of drug offenses, money laundering and organized crime (see the note by CNN) to. The vote allows the Procuraduría General de la República (the Attorney General’s Office) to execute the warrant issued by the federal court.

The case is not exempt from controversy and alleged political implications, but this step will allow the courts and not the press settle it down… provided Godoy-Toscano is found (he previously succeeded in evading arrest for 15 months, before swearing-in as lawmaker and enjoying the Constitutional protection that was recently removed from him).





One BIG Step Gets All Closer Toward Class Actions in Mexico

6 10 2010

 

SCtMX

The Suprema Corte de Justicia, Mexico's highest court and head of the Federal Judiciary. Federal courts would have exclusive jurisdiction for class actions in MX.

 

Special thanks to  good  friend & colleague Cecilia Ibarra  for bringing the topic to my attention


42 words. Congress in Mexico amended article 17 of the Federal Constitution (CPEUM, Constitución Política de los Estados Unidos Mexicanos) by adding just 42 words. But the — hopefully positive — impact can be enormous: it sets the stage for the introduction of class actions — denominated acciones colectivas or collective actions, per its literal translation — in federal courts of the country.

Class actions — or Collective actions are “lawsuit[s] filed by one or more people on behalf of themselves and a larger group of people “who are similarly situated,”” as defined by LAW.COM Dictionary.

The amendment, published in the Official Gazette (DOF, Diario Oficial de la Federación) on July 29, 2010, entered into force the day after, and gives Congress one year from the latter date to enact implementing legislation that make class actions practicable in Mexico. The added paragraph reads:

El Congreso de la Unión expedirá las leyes que regulen las acciones colectivas. Tales leyes determinarán las materias de aplicación, los procedimientos judiciales y los mecanismos de reparación del daño. Los jueces federales conocerán de forma exclusiva sobre estos procedimientos y mecanismos.

[Free translation: “Congress will pass laws regulating collective actions. Such laws will determine the subject–matter in which collective actions will apply, the court proceedings and mechanisms for payment of damages. Federal judges will have exclusive jurisdiction over this proceedings and mechanisms.”]

The constitutional amendment gives exclusive jurisdiction for class actions to the federal judiciary. Main reasons could be uniformity in the process, and the fact that the Federal Judiciary Branch has by far more resources than any or all of the local courts.

The practice of law in Mexico may change with a new niche. Lawyers in MX will probably turn to their North–of–the–Border colleagues for inspiration and example. Implementing legislation would probably touch on attorney’s fees and related issues; I would not be surprised if they even go to the detail of capping contingency fees.

A probable side effect of the change is that American courts may be more willing to dismiss a case before them based in forum non conveniens motions by defendants, now that Mexican courts would be able to offer an additional remedy that will be familiar to the U.S. judges — even though not applicable to the instant case entertained by the American court.

Success or failure of class actions in Mexico will depend in good measure on the amendments to the Federal Code of Civil Procedure and all secondary legislation by Congress. One of the main challenges for the Mexican judiciary on the issue will be to have an effective case management infrastructure to deal with class actions with potentially thousand of case members acting in a case.

New opportunities will come for plaintiffs and attorneys. We will keep an eye on it.

To think list:

  • Congress decided to vest exclusive jurisdiction for class actions in Mexico on Federal judges — presumably District Judges. States are purposely left out, probably for uniformity’s sake and better resources by the Federal Judiciary.
  • The practice of law in Mexico may change with a new practice niche.
  • Will MX Congress mirror US Class Action legislation when implementing the constitutional amendment? If so, which one?
  • One of the main challenges for the Mexican judiciary on the issue will be to have an effective case management infrastructure to deal with class actions with potentially thousand of case members acting in a case.




Mexico, Its Full Faith & Credit Clause and Same-Sex Marriage

23 08 2010
Supreme Court

The Plenary Room of the Supreme Court of Mexico

Earlier this month in Mexico City, the Suprema Corte de Justicia de la Nación (Supreme Court of Justice of the Nation, MXSCt), Mexico’s highest court, debated and voted 9-2 not to declare unconstitutional certain amendments to the Civil Code of the Federal District (Mexico City) that allow same-sex marriage and adoption made by such married couples. The Procuraduría General de la República (Mexico’s Attorney General, PGR) had challenged the amendments. The opinion is still to be published; the debates were transmitted live via web and cable TV and closely followed by the public and press, and the transcripts are available at the MXSCt’s website.

One aspect of the Ministros (Mexico’s counterpart to the U.S. Supreme Court’s ( SCOTUS) Justices) of the MXSCt ruling orders that same-sex marriages – and adoptions made by such married couples – validly executed in Mexico City shall be recognized as valid in all states of the country (Mexico is a federation composed by 31 states and one Federal District: Mexico City. Currently, only the Federal District (Mexico City) performs same–sex marriages – and only one state (Coahuila) performs same-sex civil unions).

The MXSCt made a direct interpretation of article 121.IV – Mexico’s Full Faith & Credit Clause (MXFF&CC) – of the Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the Mexican United States, MXConst).  The Mexican version of the Full Faith & Credit Clause is more detailed and extended than the one in article IV.1 (USFF&CC) of the U.S. Constitution as interpreted by U.S. courts to date.

Article 121.IV of the MXConst establishes that “[all] acts related to the civil status [of individuals] executed in accordance to the laws of one state shall be valid in the others.” Marriage and adoptions are clearly acts of such nature.

[On a note irrelevant to this post but crucial to attorneys licensed to practice in Mexico (as myself), article 121 also command states to recognize professional titles and licenses issued validly in any state or Mexico City: this nicety of the MXConst means once admitted to one jurisdiction, we’re admitted to all!]

Coincidently, the argument used by the MXSCt is similar to those advanced by Harvard Professor Joseph Singer and others in the context of the USFF&CC. It will ultimately be up to the SCOTUS to define whether the USFF&CC compels all states within the U.S. to give legal effects to same-sex marriages executed in one of the states that allow it. If they do so, it may probably happen in similar terms to those set up by the MXSCt in the instant case.

Abbreviations:

Mexico’s Full Faith & Credit Clause               MXFF&CC

Procuraduría General de la República         PGR

Suprema Corte de Justicia de la Nación      MXSCt

United States’ Full Faith & Credit Clause     USFF&CC