Begay v. State

summary judgment. There was no error in 723 P.2d 252 Furthermore, finding. this even BEGAY, Hanogani Bitsie, Ruth Y. Nez plaintiffs had failed to move summary for Conn, Harry Harrison, Minnie K. Rex judgment, the court would not be barred Yazzie, Harrison and David Plaintiffs- granting summary judgment in their Appellants, favor there because were no material fac tual in dispute. issues See Moore v. 1099, Georgeson, 679 P.2d (Colo.App. The STATE of New Mexico and Dr. 1983); Ediger, 724, Brummett v. 106 Idaho Smialek, John the State Medical 682 P.2d 1271 Juker v. American Investigator, Defendants-Appellees. Co., Livestock Insurance 102 Idaho 637 P.2d 792 Boggs See also No. 7949. Anderson, (1963) 72 N.M. 381 P.2d 419 Appeals Court of of New Mexico. (summary judgment given sponte was sua court). argues Defendant that he Dec. 1985. prejudiced by was having speculate Rehearing Denied Jan. whether arguing were a Rule 56 argument motion. This despite is made reply

defendant’s to the re

sponse, indicating that he was well aware arguing were their entitle

ment summary judgment. Defendant prejudiced by any

was not lack of notice.

Finally, argues the defendant

the trial court in awarding erred $406

attorney plaintiffs. fees to Attorney fees

are not recoverable statutory absent or authority.

case law Martinez, Martinez v. Plain argue

tiffs attorney that the fees in this supported by law,

case are citing case

McCoy Alsup,

(Ct.App.1980). McCoy only discussed special damages;

award of attorney fees Gardner,

were not an issue. In Gregg v. this Court attorney

noted that ap fees have been

proved in rare instances. This case does

not fall into exceptions to the

general rule. See at Id. 388 P.2d at

77-78. foregoing reasons,

For judgment

of the trial court respects, is affirmed in all

except special for damage award to fees, attorney portion which

is reversed.

IT IS SO ORDERED.

FEDERICI, WALTERS, JJ., concur.

ly, original The six lack of George plaintiffs are all relatives of Nel son, Hanogani deceased. Nez Bitsie was mother; the decedent’s the other five tiffs were brothers or sisters of decedent appeal. and are parties sought damages alleged on the basis of an wrongful perform autopsy decision to an George type damages on Nelson. The recoverable, any, are discussed in the pertinent appeal. are not brief but motion, ruling In its on defendant’s court ruled that Count I of com (the plaint perform autopsy decision an to body George on the Nelson was made negligently adequate and without reason or upon justification) failed to state a claim granted. which relief could be The court further ruled that the decedent’s standing pursue not and sisters did have to (defendants autopsy II Count violated the requiring statute consent of the next of kin); (interference III Count with religion tiffs’ free exercise of in violation of II, 11); N.M. Const. art. and Count IV § (the alleged conduct constituted a violation rights giving rise of federal constitutional to a cause of action under U.S.C. 1983). Decedent’s mother was allowed § proceed against defendants with her to II, III IV. claims under Counts appealable Sep- filed final order was A timely appeal- 1984. Plaintiffs tember cross-ap- have not filed a ed. Defendants however, have, jurisdic- peal. They briefed relating governmental im- matters tional as affirm- munity which were raised below part, in We affirm reverse ative defenses. trial court. part in and remand to the Mettler, Shiprock, plaintiffs-ap- for Earl pellants. ISSUES Civerolo, Butkus, Paul L. Carl J. Civero- for presented to this court The issues P.A.,

lo, Wolf, Albuquerque, Hansen & are: resolution defendants-appellees. 1). court was correct Whether the trial dismissing I for failure to state a in Count

OPINION claim; 2) correct GARCIA, the trial court was Judge. Whether dece- dismissing the brothers and sisters of appeal from the court’s This is an trial standing; II for lack of dent from Count ruling on defendants’ motion to dismiss 3) trial court was correct pursuant Civ.P.Rule Whether NMSA. dismissing and sisters of dece- 12(b)(6) the brothers (Repl.Pamp.1980), and altemative- IMMUNITY, COUNTS I & III and for lack of SOVEREIGN dent Counts IV II governmental The issue of immuni FACTS jurisdictional, Spray City Albu ty Nelson, 60-year-old body George The querque, Indian, alleyway in an Navajo was found and, such, parties may as be raised Farmington, New Mexico a bar in behind at time or the court on its own Farmington police on March Mexico Livestock Board v. New motion. people in connection questioned several Dose, P.2d seen Mr. Nelson was with the death. Development Corp., Sangre de Cristo Inc. individuals earlier drinking with other Fe, City Santa 503 P.2d time, decedent had cash day. At that Wallace, (1972); Bumpers purchased a bottle of person his and had on 462, 245 P.2d 383 Later, found in the whiskey. decedent was sovereign immunity law Common pocket his right front of alley with the by for tort actions was abolished the Su hat and loose pulled inside out. His pants State, in Hicks v. preme Court body. the Mr. change found near were following year, The on his forehead and Nelson had scratches Legislature responded by the New Mexico was miss- on his face. His wallet bruises passing the Tort Act which reinstat Claims having ing. reported seen some- A witness immunity except eight in governmental ed lay as he on the one kick Mr. Nelson specifically are classes of activities which his wallet. The ground and then remove exemptions set out as within the Act. identity of the de- the police ascertained Company Fireman’s Fund Insurance v. detoxification center. ceased from a local Tucker, (Ct.App. N.M. 95 kin, were notified a few plaintiffs, Next of 1980). provides 41-4-2 of the Act Section body. By discovery of the the hours after public the part: in is declared to be “[I]t Farmington early time arrived governmental Mexico that policy of New body Mr. Nelson’s had morning, the next only public employees shall be entities and autopsy. Albuquerque for an of the Tort been sent to liable the limitations within * * Further, 41- Farming- Act Section body When the was returned Claims governmental entities and 4-4 declares that ton, sister, Begay, Mr. Nelson’s Ruth acting employees, while within the public body the which bore viewed and identified duties, be scope shall immune of their incisions as Y-shaped torso cut and other a any except as waived liability for tort autopsy. a result of the Tompkins Irrigation v. Carlsbad the Act. and are decedent’s mother five Plaintiffs District, (Ct. P.2d 767 630 They brought an ac- and sisters. public policy declaration of App.1980). damages arising from emotional tion for 41-4-2, proviso immunities and the Section by family members be- distress suffered 41-4-4, together, require taken of Section George was not body cause the of Nelson cause of action must fit that Navajo re- according to traditional handled exceptions to the immuni one of the within ligious beliefs. governmental entities and ty granted to immunity public employees. If has been Mexico name the State of New waived, agency that caused particular the Smialek, the state medical and Dr. John negli for the may be held liable the harm investigator, defendants. In their an- as public employ gent act or omission of the swer, immunity under the raise defendants ee. Act, 41- NMSA Section Tort Claims & Cum. through (Repl.Pamp.1982 4-1 -27 whether the We first determine also Supp.1985) proper party. as a defense. Defendants It is axiomatic that state is a consent, in their without its sovereign immunity issue a cannot be sued the state raise Ohio, v. Palmer State U.S. appeal brief. of -8, Sangre de through inap- 41-4-11 are and Section 63 L.Ed. S.Ct. Corp. Development the plicable Similarly, Under Section 41- Cristo case. agency particular applies Claims Act 4-12 is not in that it Tort involved to law party that must be the harm is the caused enforcement officers. Dr. Smialek not a complaint against in the whom named See Anchondo law enforcement officer. Lopez may entered. judgment be a Department, Corrections Mexico, New State of (Ct.App.1985), P.2d 190 overruled on other immunity Section 41-4-9 waives for dam- Lopez, In grounds, see 24 SBB 1095. ages negligence public caused the Re cause of action was tiffs employees operation hospital, University of New Mexico. gents of institution, clinic, infirmary, dispen- mental Yet, simply named the State of plaintiff sary, medical care home or like facilities. Mexico and various individuals as de New allegation There is no that Dr. Smialek was nothing said: “There is indi fendants. We operation in the involved particular entity responsible cating that the facilities, may operation listed nor state, regents than the or that the is other investigator’s the state medical office be regents, any responsi apart from the has exception. Redding City read into this Id. bility.” at 195. We determined that Consequences. Truth or failing to dismiss the trial court erred party-defend of New Mexico as a the State provides Section 41-4-10 a waiver analogous. There is ant. This case is no damages by public employees caused of New Mexico did claim State providing health care services. No cases wrong any responsibility anything or has argument support are cited to the that the by plaintiffs. alleged for the harm suffered complained this action of falls within waiv holding Lopez, to in deter Pursuant our we er, logic support proposition but would the mine that the State of New Mexico should perform autopsy that the decision to an See also case. be dismissed this not health care. No health does involve Mexico, v. New Wittkowski State of 103 provided Mr. care services were to Nelson 526, 93, (Ct.App. 710 24 N.M. P.2d SBB 846 family To any nor to of his members. 1985). any to sue under of these allow next determine whether immuni We exceptions would to read into the Act be ty against has been waived for the claim language right not there. The to which is may Dr. Consent to sued not Smialek. be is limited to those sue state defendants implied, one the be but must come within of presented rights expressly and conditions exceptions immunity Tort under County Eddy. v. in the Act. Methola of Redding City v. Truth See Claims Act. of allegation negligent that an of We conclude 226, Consequences, or N.M. 693 P.2d 102 decision-making by investigator the medical (Ct.App.1984). public Dr. Smialek is a exception does not fall within an to the 41-4-3(E) (Cum.Supp. employee. Section legislative grant sovereign immunity of 1985). charge Dr. Smialek with in the Tort Act. The trial contained Claims negligence, performance not in the dismissed I for failure to state court Count autopsy, deciding perform in an au but a claim. The district court will be affirmed topsy. public Because Dr. Smialek is a reason. Scott v. if it is correct for employee, acting in the course of his em 697, Murphy Corporation, Mexico, ployment with the State of New (1968). P.2d 803 We affirm dismissal plaintiffs’ right to recover a suit grounds. jurisdictional this claim on of him is limited to the prescribed conditions complaint, In Count II of the involv County Eddy, Methola v. See the Act. of 1978, ing plaintiffs’ claim under Sec If NMSA no (Repl.Pamp.1981) (providing 24-12-4 immunity tion specific waiver of can be found examinations), Act, post-mortem plaintiffs’ complaint for consent for the Tort Claims trial court dismissed herein must be dismissed. Section 41-4-5 religious practic- in the relevant standing. Because the issue of cient stake of for lack case, prior in the give them As es to sovereign immunity is central counts, plaintiffs of New jurisdictional named State discussion of because our and II, as defendants. court Mexico and Dr. Smialek applies to Count this also defects properly state is II should be dis- We consider whether the that Count determines party as a in this constitutional plaintiffs for failure to named missed as to all relief can be claim. upon which state a claim II, neces- dismissing In Count we granted. allegations There are two that 24-12-4 sarily that even Section decide party a can state a must be made before action, private it cause does create under 42 U.S.C. cause action § investigator’s medical not override the does First, allege complainant must Tort immunity under the Claims grant of deprived him of a federal person some has 41-4-2(A) -4(A); 41-4-

Act. See § §§ second, allege per right; he must that the City Las Compare Cole v. Cruc- 17(A). acted under color of state law. Gomez son es, Toledo, 446 U.S. 100 S.Ct. (1980). The New L.Ed.2d 572 State of III COUNT person meaning Mexico is not a within the III Plaintiffs’ Count concerns Quern rights of the federal civil statutes. plaintiffs’ free exer alleged an violation Jordan, 440 U.S. 99 S.Ct. guaranteed by religion the New cise of State, DeVargas ex L.Ed.2d 358 We have determined Mexico Constitution. Department Mexico Correc rel. New may the state with not sue tions, (Ct.App. express there is no out its consent and that 1981). Thus, of New Mexi as to the State under the for the medical examiner waiver co, allegation plaintiffs have not made an reasoning ap Act. This same Tort Claims In to their Section 1983 claim. essential complaint. plies III of to Count allegation, plaintiffs’ of this the absence given The state has no consent to be sued DeVargas, must fail. In this court claim Article II 11 of the New Mexico under § ruled that because the state was not sub Act Constitution. The Tort Claims State original ject to suit under Section specifically constitutional vi includes state complaint nullity was a as to the state. by public officers and olations committed Quern found that the Eleventh Amend governmental entities within the torts for effectively ment foreclosed a Section 1983 found, liability may provided be that which suscep against the state. The state’s suit by entity are committed an or the violations tibility jurisdictional. to suit is The federal See Act’s waivers. officer included the against claims the State of constitutional Accordingly, III should 41-4-4. Count § plaintiffs are as to all New Mexico barred plaintiffs jurisdic on be dismissed as to all jurisdic to state a claim. The for failure grounds. tional against to a Section 1983 suit tional bar not, however, dispose does state THE TRIAL COURT WAS WHETHER against 1983 claim the medi tiffs’ Section IN PLAIN- CORRECT DISMISSING investigator. cal AGAINST TIFFS’ SECTION 1983 CLAIM STANDING THE STATE FOR LACK OF THE PLAINTIFFS’ STANDING TO SUE IV, claim, concerns Plaintiffs’ last Count UN- STATE MEDICAL INVESTIGATOR alleged of the First Amendment violations 1983 DER SECTION The trial court to the federal constitution. discussion, as- standing purposes to as- For of our we plaintiffs found that lacked decide, sume, but do not that the medical violations under the fed- sert constitutional argue investigator “person” is a within the mean- Plaintiffs that the eral constitution. ing of Section 1983. We confine our dis- prematurely court declared that trial a cussion here to the issue and sisters did not have suffi-

489 controversy require proposition religious that objec- case or or moral fact, injury in standing by is one of family autopsy tions a member to an ment injury in fact or otherwise. This economic will be sufficient to override a medical ex- constitu called the “irreducible has been autopsy aminer’s decision to unless that present in minimum which must be tional autopsy “necessary” is under the relevant (Citation omitted). Ana every case.” Tax Teasley statutes. 204 Thompson, Ark. Blumenthal, 566 F.2d Advocates v. lysts & 959, 165 specifically S.W.2d 940 (D.C.Cir.1977). equally 137 Another dep- states that the cause of action for the requirement injury important is that opportunity provide rivation of the causally related to complained of must be belongs Christian burial for to the decedent behavior of defendants. Cia Petrolera surviving spouse, ifor waived the sur- Carribbean, Inc., Caribe, Inc. v. Arco viving spouse, person to the who can be (1st Cir.1985). F.2d 404 denominated as next of kin. alleged they Plaintiffs have adopt is no There basis for this court to Navajo religion practice and adhere to the reasoning defendants’ as to the constitu- performance autopsy and that the of an By tional violations. the traditional tests religious and violated violated their beliefs standing, alleged inju- have an rights practice their their as individuals to ry religion. to their free exercise of Plain- religion. allege injury has an only allege tiffs need defendant’s ac- due to defendants’ been suffered them practice had a tion coercive effect on Company conduct. unlawful Duke Power Price, religion. their Robinson v. 615 F.2d Study Group, v. Carolina Environmental (5th Cir.1980). This, Inc., 438 U.S. 98 S.Ct. 57 L.Ed.2d have done. It will be left to the trial court (1978). to determine if free exercise ground plaintiffs’ Defendants seek to right outweighed by the state’s interest standing to assert federal constitu- their authorizing autopsy an under the facts quasi-property right claim in a tional Brashear, 92 of this case. See State v. Johnson, body. decedent’s See Matter of (Ct.App.1979). N.M. (1980); Barela We determine that have stand- Company, v. Frank A. Hubbelt ing proceed constitution- on their federal Cope, Infield sum, In al claim Dr. Smialek. we 270 P.2d Defend- trial dismissal of Count I affirm the court’s Hospital, Snyder Holy ants cite Cross II complaint. Similarly, Counts Md.App. 352 A.2d 334 In principles III are dismissed under the Snyder, the court found that the relief sought by sovereign immunity. The effect of the tri- the father of decedent could properly predicated ruling be on the free exercise motion to al court’s on defendants’ Hanogani clause the state and federal constitu- dismiss was to allow Nez Bitsie apparently tions. The court relied on the II, III, proceed on and IV and to to Counts quasi-property right father’s in the case. all other from the case. dismiss argue Defendants that since the brothers By jurisdictional of our determina- virtue possess and sisters of Mr. do not Nelson tion, this case is remanded to the trial court quasi-property right, they this have no Hanogani Nez with directions to dismiss standing to assert their own constitutional III, II and and Bitsie’s claims under Counts practice rights religion. their to dismiss the Section 1983 claim plaintiffs. as to all the State of New Mexico Plaintiffs direct to a number of the court All a claim for relief have stated they opposition cases claim are in which against Dr. under at Smialek Section Snyder. by plaintiffs The cases cited do standing requirements at least as to the not address the issue of the basis for stand- appeal. in this Inasmuch as the trial ing to assert a of the free exercise issue violation Rather, for the court dismissed claims advanced clause. these cases stand under and sisters Section portion is as to that court reversed the trial GRAHAM, Josephine only claim thus surviv- of its decision. Plaintiff-Appellant, plain- the claim advanced all ing bewill against Dr. Smia- tiffs under Section CENTER, PRESBYTERIAN HOSPITAL lek. Defendant-Appellee. costs party shall bear its own on Each No. 8810. appeal. this ORDERED. IT IS SO Appeals of New Mexico. Court July BIVINS, JJ., concur. WOOD “B” Exhibit FOR

ORDER DENYING MOTION

REHEARING MATTER comes before the court

THIS rehearing. defendant’s motion for De-

on requests

fendant that we reconsider three

issues. After consideration of defendant’s

motion, we determine that issues one and sufficiently

three have been elucidated in opinion.

our raises, point,

In his second defendant time, immunity

the first Dr. Smialek’s

based on non-involvement. Defendant as- knowledge

serts that it is “common in the

legal community” that Dr. Smialek suc- alleges

ceeded Dr. Weston whom defendant perform the au-

made final decision to Accordingly,

topsy. defendant asserts that investiga-

Dr. Smialek was not the medical question;

tor at time of the incident possibility there is no that he can be injured plaintiffs;

found to have and that is, therefore, controversy

there no case or

between the and Dr. Smialek. assertions, true, may provide

These de- requested.

fendant with the relief It however,

inappropriate, to raise such factu- appellate

al determinations in the court on rehearing.

a motion for These matters are

properly presented to the trial court

appropriate motion.

IT the motion for IS ORDERED that

rehearing be denied.

IT IS SO ORDERED.

Case Details

Case Name: Begay v. State

Court Name: New Mexico Court of Appeals

Date Published: Dec 10, 1985

Citation: 723 P.2d 252

Docket Number: 7949

Court Abbreviation: N.M. Ct. App.