Carrillo v. Rostro , 114 N.M. 607 ( 1992 )

BACA, J.,

specially concurring.

APPENDIX: HISTORY OF THE WRIT OF ERROR IN NEW MEXICO

The writ of error is one of several methods of appellate review and is derived from the common law. Armijo v. Neher, 11 N.M. 354, 357-58, 68 P. 914, 916 (1902). Ordinarily, the writ is directed by an appellate court to a lower court, commanding the lower court to send the record of an action to the appellate court for the purpose of correcting an alleged error in the proceedings. 4 C.J.S. Appeal & Error § 9 (1957). Originally, writs of error were only available to review proceedings at law, whereas appeals were only available to review proceedings in equity. See 4 Am. Jur.2d Appeal & Error § 2 (1962).

Although our Constitution provides for writs of error, their use long antedates adoption of the Constitution in 1911. The Kearny Code contained references to the writ, as did early territorial statutes and the Organic Act of the territory.¹ In 1880, the territorial Supreme Court held that the law of the territory prohibited use of writs of error in equity cases, stating “a writ of error does not lie in chancery cases.” Kidder v. Bennett, 2 N.M. 37, 39 (1880).

In response to Kidder, the territorial legislature enacted a statute authorizing appeals and writs of error in all cases, either at law or in equity. Farish v. New Mexico Mining Co., 5 N.M. 234, 236, 21 P. 82, 83 (1889) (referring to 1880 N.M. Laws, ch. 10, § 1). In 1891, however, the territorial legislature returned to the law-equity distinction between writs of error and appeals,² and the Supreme Court held that by the 1891 Act the legislature had intended to limit review in common law cases to writs of error. Atchison, T & S.F.R.R. v. Martin, 7 N.M. 158, 161, 34 P. 536, 536 (1893), aff'd, on other grounds, 166 U.S. 399, 17 S.Ct. 603, 41 L.Ed. 1051 (1897). Then, in 1897, the territorial legislature again changed the method of appellate review by abolishing the distinction between an action at law and an equitable action and by authorizing a party aggrieved by a final judgment or decision either to take an appeal or to sue out a writ of error, at the party’s election.³ Thereafter and until 1915, appeals and writs of error were provided for in the same section of the law, “each of equal efficacy.” See In re Morrow’s Will, 41 N.M. 117, 122, 64 P.2d 1300, 1303 (1937).

In 1915, the legislature amended the statutes governing appellate procedure to provide for writs of error and appeals in separate sections.⁴ Those sections were the predecessors to today’s statutes governing appeals and writs of error,⁵ although the legislature made minor changes in 1917 and 1927.⁶ This Court later rejected an argument that the 1927 version of the statute restricted issuance of writs of error to cases at law and held that review by writ of error was coextensive with review by appeal. Milosevich v. Board of County Comm’rs, 46 N.M. 234, 235-37, 126 P.2d 298, 299-300 (1942). The 1927 version was repromulgated by the legislature with a few changes in the 1986 recodification of statutes relating to various aspects of procedure,⁷ and the 1966 writ of error statute remains in effect today as Section 39-3-5.

The history of our appellate rule relating to writs of error is not as long as that of the statute, though it does go back a good many years. The current rule, Rule 12-503, is essentially the same as Supreme Court Rule 10, promulgated on April 1, 1974, which amended the earlier version of the rule to require a showing that the remedy by way of appeal was inadequate.⁸ The earlier version, Supreme Court Rule 4, originated in 1928 and was patterned after Section 3 of the 1915 Laws. Neither the early rule nor the statute from which it was taken distinguished between the circumstances in which an appeal could be taken or a writ of error applied for. In 1974, this Court, in interpreting the appellate rules in effect prior to April 1, 1974, ruled that there was no difference in the degree of finality of judgments that could be reviewed on appeal and those reviewable by writ of error. Angel v. Widle, 86 N.M. 442, 443, 525 P.2d 369, 370 (1974). It thus appears that the 1974 amendment was intended to expand the scope of review under a writ of error by making such review available in cases in which the remedy by appeal was inadequate.

RANSOM, Chief Justice

(specially concurring).

I concur in the foregoing opinion, except for the direction contained in footnote 16 that it is not the jury but is the court that is to decide the factual issue of whether, under the circumstances within the community of Bernalillo, the public teacher’s interest in speaking out was greater or lesser than that of the Board of Education in promoting the efficiency of public school services. The teacher will adduce evidence to explain and justify her exercise of the right to speak, to characterize the tone of her speech and her demeanor in making it. If the court finds as a matter of law that the speech fell within the protection of the First Amendment, the school board will go forward with evidence from which the fact-finder will be asked to infer that the teacher’s speech at the March 1987 meeting, made in the presence of other school district employees, tended to undermine the board’s authority, disrupt working relationships, and encourage disloyalty to the board’s policies. That the balancing of such evidence is fact specific is conceded without debate. That the finding will be dispositive of the cause of action is likewise conceded. The factfinder will not decide the policy or law of balancing, it will decide the balance in fact, without the effect of precedent in law.

I recognize that interlocutory constitutional issues of fact that are collateral to and perhaps avert a decision on the merits may be resolved by the court at both trial and appellate levels. See Work v. State, 111 N.M. 145, 150-51, 803 P.2d 234, 239-40 (1990) (Ransom, J., specially concurring) (court to decide ultimate question of voluntariness of confession; significance of facts in speedy trial claims is for the court). However, when a balancing of the evidence effectively decides ultimate issues of fact that are dispositive of the case, such as whether violation of a party’s civil rights did or did not occur so as to preclude or give rise to immunity from liability for that wrong, then a party’s right to trial by jury demands resolution by a jury. I see no good reason that, in a Section 1983 action at law, dispositive fact issues of a constitutional dimension should be distinguishable from dispositive fact issues arising under statute or the common law.

In footnote 16, it is noted that there is an “apparent consensus in the federal courts that the balancing process is an inquiry of law for the court, not a factual issue for the jury.” From my reading of the seminal federal case, Connick v. Myers, it was not the balancing process but rather the threshold determination of protected speech that was a question of law for the court. Because Connick involved a bench trial, there was no discussion as to who should balance the interests of the parties. The Supreme Court did decide that the court was to determine as a matter of law whether the speech was protected. Subsequent cases (cited in footnote 16) have made unfortunate footnote references to Connick as having decided that a court, rather than a jury, must do the balancing test.

Here, what is equally persuasive to me is that the question of who is to decide the case factually is not one of federal substantive law. It is a question of procedural law and state constitutional law governing the process of factfinding. That the balancing test must be done is a matter of federal substantive law; whether the court or jury resolves the facts is not. I believe we should follow Adams v. United Steelworkers of America, AFL-CIO, 97 N.M. 369, 372, 640 P.2d 475, 478 (1982), that “[w]e must apply federal substantive law but state procedural law.” In New Mexico, it has been decided quite properly that the determinative factual issues should be submitted to the jury. Jacobs v. Stratton, 94 N.M. 665, 667-68, 615 P.2d 982, 984-85 (1980).

BACA, Justice

(Specially Concurring).

While I agree with much of what the majority espouses today and join the Court’s opinion, I write separately to emphasize the extremely limited reach of the collateral order doctrine. I do so in the hope of stemming the tide of appeals that I anticipate will flood this court in the wake of today’s opinion from those parties who either misread the opinion or ignore our admonitions as to the narrowness of the collateral order doctrine.

As today’s opinion recognizes, except under very limited circumstances, we lack “jurisdiction to review an order or decision that is not final.” Maj. at 612, 845 P.2d at 135 (citing NMSA 1978, § 39-3-2 (Repl. Pamp.1991)). The purposes underlying this requirement of finality have been reiterated in numerous cases:

[The rule] emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of “avoidpng] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 [101 S.Ct. 669, 673, 66 L.Ed.2d 571] (1981), quoting Cobbledick v. United States, 309 U.S. 323, 325 [60 S.Ct. 540, 541, 84 L.Ed. 783] (1940).

Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 n. 3, 108 S.Ct. 1945, 1949 n. 3, 100 L.Ed.2d 517 (1988) (alterations in original). In addition, the finality requirement fosters judicial economy by eliminating the delays caused by interlocutory appeals. Catlin v. United States, 324 U.S. 229, 233-34, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945).

In accordance with the purposes underlying the finality requirement, the collateral order doctrine exempts only a “small class” of decisions from the final-judgment rule. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). To fall within the “small class” of decisions in which the collateral order rule may be appropriately invoked, “the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978). The doctrine must be narrowly construed, “ ‘lest the exception swallow the basic finality requirement and swamp dockets with collateral order appeals.’ ” Maj. at 613, 845 P.2d at 136 (quoting 15A Charles A. Wright et al., Federal Practice & Procedure § 3911.2, at 353 (2d ed. 1992)).

Today’s-opinion recognizes that the heart of the collateral order doctrine is “the requirement that the order sought to be reviewed implicates rights that will be irretrievably lost, absent immediate review and regardless of the outcome of an appeal from the final judgment.” Maj. at 616, 845 P.2d at 139. While I agree with this assessment, I wish to emphasize that the second requirement of the doctrine, i.e., that the order appealed must be collateral to the merits of the action, also narrows the doctrine. “The decision offered for review must not be a step toward a final judgment in which it will merge, since the purpose of the final judgment rule is to combine in one appeal all questions ‘that effectively may be reviewed if and when a final judgment results.’ ” Wright et al., supra, § 3911.2, at 379 (quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1225). The narrowness of the collateral order doctrine forecloses its use as a supplementary avenue of appeal in all but the most limited circumstances. As Judge Aldisert has so aptly noted,

We have detected what appears to be an irresistible impulse on the part of appellants to invoke the “collateral order” doctrine whenever the question of appealability arises. Were we to accept even a small percentage of these sometime exotic invocations, this court would undoubtedly find itself reviewing more “collateral” than “final” orders.

Borden Co. v. Sylk, 410 F.2d 843, 845-46 (3d Cir.1969).

Moreover, our choice of the writ of error as the procedural avenue to raise appeals of collateral orders further constricts the application of the doctrine. As our opinion recognizes, a writ of error will issue only if the movant shows that “the remedy by way of appeal is inadequate.” SCRA 1986, 12-503 (Repl.Pamp.1992). This requirement supplements the collateral order doctrine’s requirement that the order is “effectively unreviewable on appeal from a final judgment.” In addition, a writ of error “will be issued or not in our discretion.” Maj. at 617, 845 P.2d at 140. Thus, our adoption of the writ of error as the procedural device to implement the collateral order doctrine effectively limits its applicability.

In summary, the collateral order doctrine must be narrowly construed to discourage piecemeal appeals while fostering judicial economy. Because I read the Court’s opinion today to be extremely narrow and having application in only a “small class” of cases, I concur.

1 . See Kearny Code, Courts & Judicial Powers, §§ 13, 14, 17 (1846); Compiled Laws of 1865, ch. 16, §§ 6, 7, 9; Organic Act, ch. 49, § 10, 9 Stat. 446 (1850).

2 . 1891 N.M. Laws, ch. 66, § 5.

3 . 1897 N.M. Laws, ch. 73, §§ 1, 161.

4 . 1915 N.M. Laws, ch. 77, §§ 1, 3.

5 . Section 1 of the 1915 Laws became what is now Section 39-3-2, and Section 3 became what is now Section 39-3-5.

6 . 1917 N.M. Laws, ch. 43, §§ 1, 2, 4; 1927 N.M. Laws, ch. 93, § 2.

7 . 1966 N.M. Laws, ch. 28, § 37.

8 . N.M.Sup.Ct.R. 10 (1974) (amending N.M.Sup. Ct.R. 6 (1949) & (1936)).