In Re DPO
- Reporters:
- , ,
- Before:
- Kapsner
Opinion of the Court by Kapsner, Justice.
Kapsner, Justice.
[¶1] Joan Mann, Ken Danks, doing business as TEK Industries, Tracy Wilkie and Christa Monette (“plaintiffs“) appealed from a district court order denying reconsideration of an earlier memorandum opinion and order, and from that earlier memorandum opinion and order dismissing all named plaintiffs except Danks from their action against the State Tax Commissioner and the State Treasurer (“State“) seeking a permanent injunction barring imposition of state motor vehicle fuels excise taxes on Native Americans in certain North Dakota Indian reservations and seeking a refund of the taxes already paid. The State cross-appealed from the order denying reconsideration of the district court‘s earlier memorandum opinion and order holding the State may not impose the motor vehicle fuels excise tax on Native Americans in those Indian reservations and issuing a permanent injunction prohibiting collection of the taxes on the reservations. The State also cross-appealed from findings of fact, conclusions of law and order for judgment declaring the tax illegal when imposed on Native Americans in those reservations. Under the circumstances, we conclude we do not have jurisdiction to consider the appeals. We further conclude the exercise of our supervisory jurisdiction is not appropriate under the circumstances. We dismiss the appeals.
I
[¶2] The plaintiffs are Native Americans. Mann is a member of the Three Affiliated Tribes, owns Mann Enterprises, and lives on the Fort Berthold Indian Reservation. Danks is also a member of the Three Affiliated Tribes, owns TEK Industries, and lives on the Reservation. Wilkie and Monette are members of the Turtle Mountain Band of Chippewa Indians and reside on the Turtle Mountain Reservation.
[¶3] In August 2003, the plaintiffs sued the State under federal and state law seeking a declaration that it is illegal for the State to impose the 21 cent motor vehicle fuels tax under
[¶4] On January 23, 2004, the State moved for “reconsideration” of the court‘s January 12 order, arguing it was “denied the opportunity to file an Answer to the Original Complaint” and was “not given an opportunity to address the merits of their case before the Court.” The State also sought a stay of the court‘s order pending appeal. On January 27, 2004, the plaintiffs also filed a motion for reconsideration challenging the dismissal of the federal claims and of all plaintiffs except Danks. They also moved for refunds and for certification of the class action. On April 29, 2004, the court denied the State‘s motion for reconsideration, but granted its request for a stay pending appeal. The court also denied the plaintiffs’ motion for reconsideration and postponed determination of refunds and class certification. The court consolidated its rulings in “findings of fact, conclusions of law and order for judgment” dated April 29, 2004, and filed on May 7, 2004. Although the document concludes, “LET JUDGMENT BE ENTERED ACCORDINGLY,” no judgment has been entered.
[¶5] The plaintiffs appealed from the April 29 order denying their motion for reconsideration and from the January 12 memorandum opinion and order dismissing all plaintiffs except Danks. The State cross-appealed from the April 29 order denying its motion for reconsideration and from that part of the April 29 findings, conclusions and order for judgment declaring the tax was illegally imposed.
II
[¶6] We must address the appealability of the district court‘s orders. Although the State does not challenge the plaintiffs’ right to appeal, the plaintiffs argue this Court lacks jurisdiction over the State‘s appeal.
[¶7] The right of appeal is governed solely by statute in this state, and without any statutory basis to hear an appeal, we must take notice of the lack of jurisdiction and dismiss the appeal. State v. Gohl, 477 N.W.2d 205, 207 (N.D. 1991). In Dietz v. Kautzman, 2004 ND 164, ¶ 6, 686 N.W.2d 110, we said:
This Court must have jurisdiction before we can consider the merits of an appeal. Kostrzewski v. Frisinger, 2004 ND 108, ¶ 8, 680 N.W.2d 271. In Gast Constr. Co., Inc. v. Brighton P‘ship, 422 N.W.2d 389, 390 (N.D. 1988) (citations omitted), this Court set forth the two-part test for determining whether jurisdiction over an appeal exists:
First, the order appealed from must meet one of the statutory criteria of appealability set forth in
NDCC § 28-27-02 . If it does not, our inquiry need go no further and the appeal must be dismissed. If it does, thenRule 54(b), NDRCivP , must be complied with. If it is not, we are without jurisdiction.
[¶8] Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable. Lang v. Bank of Steele, 415 N.W.2d 787, 789 (N.D. 1987). An order which “grants, refuses, modifies, or dissolves an injunction or refuses to modify or dissolve an injunction” is appealable under
A
[¶9] In this case, the State appealed from that part of the April 29 findings, conclusions and order for judgment declaring the motor vehicle fuels tax could not be imposed on the plaintiffs’ Indian reservations and from the April 29 order denying reconsideration of the prior January 12 memorandum opinion and order granting the permanent injunction. This Court has long held that an order for judgment, as distinguished from the judgment itself, is not an appealable order under
[¶10] The State also appealed from the district court‘s April 29 order denying its motion for reconsideration of the court‘s January 12 memorandum opinion and order granting the permanent injunction. An order denying a motion for reconsideration is appealable if it is “clearly intended to be final.” Austin v. Towne, 1997 ND 59, ¶ 7, 560 N.W.2d 895. Unlike the findings, conclusions and order for judgment, the order denying the motion for reconsideration does not call for preparation of a judgment and demonstrates it was intended to be the final order of the court on the reconsideration issues. However, there are unadjudicated claims remaining in the district court and the court did not certify this order as final under
[¶11] We do not view the exception to the
[¶12] Moreover, even assuming for purposes of argument that the district court had granted
[¶13] We conclude we have no jurisdiction to consider the State‘s appeal, and we therefore dismiss the appeal.
B
[¶14] The plaintiffs appealed from the original January 12 memorandum opinion and order imposing the permanent injunction and dismissing all named plaintiffs except Danks, and from the April 29 order denying their motion for reconsideration. Although a timely motion for reconsideration is treated as a motion to alter or amend the judgment under
[¶15] First, the January 12 memorandum opinion and order reveals that the district court did not intend this decision to be its final order. Plaintiffs’ counsel was “directed to prepare Findings of Fact, Conclusions of Law, Order for Judgment and Judgment consistent with this Memorandum Opinion and present same to the Court within thirty (30) days of the date of this Memorandum Opinion.” Although the April 29 findings of fact, conclusions of law and order for judgment were filed on May 7, no consistent judgment appears in the record. The plaintiffs have attempted to appeal from an interlocutory memorandum opinion and order. Memorandum opinions are not appealable. See Riemers v. Anderson, 2004 ND 109, ¶ 1 n.1, 680 N.W.2d 280; Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 4 n.2, 660 N.W.2d 558; Hallock v. Mickels, 1997 ND 156, ¶ 4 n.1, 568 N.W.2d 277.
[¶16] Second, the district court dismissed all plaintiffs except Danks from the action, “without prejudice,” because Danks was the only plaintiff who had complied with
[¶17] Finally, assuming for purposes of argument that the January 12 memorandum opinion and order was a final judgment, compliance with
[¶18] The plaintiffs’ attempted appeal from the April 29 order denying the motions for reconsideration fails for the same reasons the State‘s appeal from the April 29 order is defective. Assuming
[¶19] We conclude we have no jurisdiction over the plaintiffs’ appeal, and we therefore dismiss their appeal.
III
[¶20] This Court may examine a district court decision by invoking our supervisory authority. See Hilgers v. Hilgers, 2004 ND 95, ¶ 16, 679 N.W.2d 447. In Saefke v. Stenehjem, 2003 ND 202, ¶ 20, 673 N.W.2d 41 (quoting Olsen v. Koppy, 1999 ND 87, ¶ 17, 593 N.W.2d 762), we said:
Our power to issue supervisory writs is discretionary and cannot be invoked as a matter of right. [Mitchell v.] Sanborn, 536 N.W.2d [678,] 682-83 [(N.D. 1995)]; B.H. v. K.D., 506 N.W.2d 368, 372-73 (N.D. 1993); City of Fargo v. Dawson, 466 N.W.2d 584, 585 (N.D. 1991); Odden v. O‘Keefe, 450 N.W.2d 707, 708 (N.D. 1990). We exercise our supervisory jurisdiction over lower courts rarely to rectify errors or to prevent injustice where no adequate alternative remedies exist. Sanborn, 536 N.W.2d at 682-83; B.H., 506 N.W.2d at 372-73; Dawson, 466 N.W.2d at 585; Odden, 450 N.W.2d at 708. Our jurisdiction to issue supervisory writs is, in a sense, both appellate and original in character, because supervisory proceedings are independent in nature with process directed to a trial court, but our decision reviews the trial court‘s judicial act. See [Thomas J.] Burke, [The Prerogative Jurisdiction of the Supreme Court,] 32 N.D.L.Rev. [ ] 199-201 [(1956)] (comparing original supervisory jurisdiction and original jurisdiction to issue prerogative writ in publici juris cases).
[¶21] We decline to exercise our supervisory authority to consider the plaintiffs’ argument that the district court erred in dismissing, without prejudice, all of them from the action except Danks. Because the plaintiffs may either bring another action, or if not, appeal from a properly entered final judgment, adequate alternative remedies exist to resolve the disputed dismissals. See Roe v. Rothe-Seeger, 2000 ND 63, ¶ 5, 608 N.W.2d 289 (declining to exercise supervisory authority where any harm could be remedied in an appeal from an adverse judgment).
[¶22] We also decline to exercise our supervisory authority to consider the State‘s argument that the district court erred in ruling the Hayden-Cartwright Act,
[¶23] The plaintiffs have conceded that the injunction prohibits collection of the motor vehicle fuels tax only from enrolled Native Americans on their own respective Indian reservations. Although the feasibility of enforcing the injunction prohibiting collection of the motor vehicle fuels tax from Native Americans on their own reservations is questionable, the plaintiffs have indicated they would be satisfied if a refund procedure similar to the procedure provided in
[¶24] We decline to exercise our supervisory jurisdiction in this case.
IV
[¶25] The appeals are dismissed.
[¶26] Carol Ronning Kapsner
Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom
Gerald W. VandeWalle, C.J.