Reese v. State , 106 N.M. 505 ( 1987 )

STOWERS, Justice,

dissenting.

In view of the fact that the majority opinion submitted in this case has been amended, I wish to amend my dissent to include the following pertinent points.

The lengthy review in this case was initiated by the district court’s October 3, 1985 order denying the State of New Mexico’s (the State) motion to conform an instruction to the Uniform Jury Instruction in the case of State v. Reese. The State then filed a petition for writ of superintending control in the Supreme Court on November 4, 1985. On December 4, 1985, the Supreme Court issued an alternative writ of superintending control restraining and prohibiting the district court from giving a jury instruction that did not conform to the Uniform Jury Instruction applicable to the criminal prosecution. On March 4, 1986, the Supreme Court issued an opinion and judgment making permanent the alternative writ of prohibition. Although the March 4, 1986 opinion was captioned Rutledge v. Fort, as the majority now concedes, the Rutledge case is the same case as Reese v. State; Thomas Rutledge, as the district attorney for the Fifth Judicial District, was named as petitioner for the State, and the Honorable Harvey W. Fort, as the district court judge hearing the case, was named as respondent. The real party in interest remained defendant Kenneth Reese (Reese).

It is my opinion that the doctrine of the law of the case precludes this Court from issuing a subsequent decision after the original March 4, 1986 judgment became final. The September 1, 1987 opinion and the current opinion in this case should be recalled and certiorari quashed.

“The doctrine of law of the case has long been recognized in New Mexico, since before statehood and since soon after statehood.” Ute Park Summer Homes Ass’n v. Maxwell Land Grant Co., 83 N.M. 558, 560, 494 P.2d 971, 973 (1972) (citations omitted).

A previous ruling by the Appellate Court upon a point distinctly made may be only authority in other cases, to be followed and affirmed, or to be modified or overruled according to its intrinsic merits, but in the case in which it is made it is more than authority; it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves.

State v. Montoya, 94 N.M. 704, 705, 616 P.2d 417, 418 (1980) (quoting Crary v. Field, 10 N.M. 257, 264, 61 P. 118, 119 (1900).

It has long been the rule that a final judgment is conclusive as to a claim in controversy between the parties as to every matter which was offered to sustain or defeat the claim. “Public policy requires that there be an end to litigation and that rights once established by a final judgment shall not again be litigated in any subsequent proceeding.” Ealy v. McGahen, 37 N.M. 246, 251, 21 P.2d 84, 87 (1933). This rule of law has been consistently followed.

Royal Int’l Optical Co. v. Texas State Optical Co., 92 N.M. 237, 243, 586 P.2d 318, 324 (Ct.App.), cert. denied, 92 N.M. 260, 586 P.2d 1089 (1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2860, 61 L.Ed.2d 297 (1979) (citations omitted). “[T]he need for attributing finality to considered judicial determinations compels adherence to the previous decision.” State v. Montoya, 94 N.M. 704, 705, 616 P.2d 417, 418 (1980) (citation omitted). “The law of the case, whether right or wrong, is controlling on the second appeal.” Royal Int’l Optical Co., 92 N.M. at 243, 586 P.2d at 324.

In its most recent opinion in this case, the majority quotes a 1925 case wherein this Court reversed a judgment contrary to the principles of the law of the case doctrine. However, in order to justify this diversion, the Court in Farmer’ State Bank v. Clayton National Bank, 31 N.M. 344, 245 P. 543 (1925) was forced to distinguish their case on two grounds. First, the Court stated that the doctrine had never been applied in New Mexico in a ease where the former holding was wrong; and second, it had never been applied in New Mexico except on a second appeal of the same case. Id. at 354, 245 P. at 547.

With respect to the second distinction, the Court noted:

While the two cases, which we are considering, are so interrelated that it is difficult to think of them otherwise than as the same case, still they are not technically such. Such a situation as this is not often likely to arise in our courts. Our search for precedents satisfies us that such a situation has not often arisen in other courts. We therefore feel that we are not endangering the orderly and expeditious administration of the law by refusing here to apply the doctrine of the law of the case.

Id. at 355, 245 P. at 548.

With respect to the first distinction, the courts of New Mexico have addressed the effect of an alleged error in a former appellate decision since the Farmers’ State Bank case. See, e.g., Royal Int’l Optical Co., 92 N.M. at 237, 586 P.2d at 318. Like New Mexico, many courts of other jurisdictions have taken the view that the law of the case doctrine “should be applied regardless of whether it is made to appear that the issues were mistakenly or erroneously decided on the original appeal, and, indeed, that it is only where the first decision was erroneous that there is any necessity for the doctrine to operate.” 5 Am. Jur.2d Appeal and Error § 750 (1962).

[Wjhere, upon an appeal, the Supreme Court, in deciding the appeal, states in its opinion a principle or rule of law, necessary to the decision, that principle or rule becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, ... although in its subsequent consideration, this court may be clearly of the opinion that the former decision is erroneous in that particular.

Tally v. Ganahl, 151 Cal. 418, 421, 90 P. 1049, 1050 (1907).

The doctrine of the law of the case presupposes error in the enunciation of a principle of law applicable to the facts of a case under review by an appellate tribunal. It presupposes error because, if the governing principle of law had been correctly declared, there would be no occasion for the invocation of the doctrine. The sole reason for the existence of the doctrine is that the court, having announced a rule of law applicable to a retrial of facts, both parties upon that retrial are assumed to have conformed to the rule, and to have offered their evidence under it, under which circumstances it would be a manifest injustice to either party to change the rule upon the second appeal.

Allen v. Bryant, 155 Cal. 256, 258, 100 P. 704, 705 (1909).

In its current opinion, the majority also quotes an Am.Jur.2d article which proposed a more flexible approach to the law of the case doctrine. The article also stated: “although an appellate court, on a subsequent appeal, has the ‘abstract power’ to reach a result inconsistent with its decision on the first appeal in the same case, this power should be exercised very sparingly and only under extraordinary conditions and that the law of the case will not be re-examined in the absence of unusual circumstances leading to injustice or unfairness.” 5 Am.Jur.2d Appeal and Error § 750 (1962).

The present case does not present unusual circumstances or extraordinary conditions. Further, neither the statute nor the facts of this case have changed since the original 1986 Reese opinion was filed. The only alteration since the first opinion is the composition of this Court, and as pointed out by Justice Ransom in his most recent special concurrence, the particular personalities of the bench should have no effect on the precedents binding on the Court.

Finally, for the reason stated in my first dissent in this case, it is my contention that regardless of the law of the case doctrine, the original Reese opinion should be affirmed as it correctly disposed of the issues in this case.