1998 -NMCA- 90, Williams v. Board of County Com'rs of San Juan County, 18007

• Citation: 125 N.M. 445,963 P.2d 522,1998 NMCA 90
• Decision Date: 16 April 1998
• Docket Number: No. 18007,18007
• Parties: , 1998 -NMCA- 90 Bruce WILLIAMS, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF SAN JUAN COUNTY, Navajo Nation, Gerald Cly, in his individual and official capacity, Jane Doe, in her individual and official capacity, and Peterson Zah, in his individual and official capacity, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 522

963 P.2d 522

125 N.M. 445, 1998 -NMCA- 90

Bruce WILLIAMS, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF SAN JUAN COUNTY, Navajo

Nation, Gerald Cly, in his individual and official capacity,

Jane Doe, in her individual and official capacity, and

Peterson Zah, in his individual and official capacity,

Defendants-Appellees.

No. 18007.

Court of Appeals of New Mexico.

April 16, 1998.

Certiorari Denied July 6, 1998.

Lana E. Marcussen, Albuquerque, for Appellant.

Christian C. Doherty, Albuquerque, for Appellee Board of County Commissioners of San Juan County.

James Jay Mason, Mason, Isaacson & Macik, P.A., Gallup, for Appellee Navajo Nation.

OPINION

APODACA, Judge.

¶1 Plaintiff sued Defendants for alleged civil rights violations and various torts arising from the issuance of a traffic ticket. We first address whether this Court has jurisdiction to consider Plaintiff's appeal from the October 16, 1996, order. We then consider Plaintiff's appeals from two orders of the district court: (1) one dated October 16, 1996 dismissing his claims against the San Juan County Defendants based on improper venue; and (2) the other dated November 7, 1996 granting summary judgment in favor of the Navajo Nation and individual Navajo Defendants based on lack of jurisdiction and immunity. We affirm dismissal of Plaintiff's claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 Plaintiff, a non-Indian, was driving his vehicle on State Highway 666. Highway 666 is a state right of way located within the boundaries of the Navajo Nation. Navajo police officer Gerald Cly stopped Plaintiff for speeding. Cly was cross-deputized as a San Juan County Sheriff's deputy and commissioned as a Bureau of Indian Affairs Special Deputy Police Officer. He also was certified by the New Mexico State Police.

¶3 Officer Cly issued a Navajo speeding ticket to Plaintiff, citing Navajo law. Plaintiff refused to sign the ticket but stated he would sign a state traffic citation issued by a state certified officer. When Plaintiff refused to cooperate, Officer Cly called another Navajo police officer for backup; Plaintiff was then arrested and taken to the San Juan County Detention Center.

¶4 Plaintiff later filed this lawsuit in Santa Fe County. He challenged the Navajo police officers' authority to issue a Navajo citation and to arrest him under a mutual aid agreement with San Juan County. See NMSA 1978, §§ 29-8-1 to -3 (1971). Plaintiff claimed that the mutual aid agreement was invalid because it lacked the approval of the Governor of New Mexico. Plaintiff also challenged the officers' authority to handcuff him and to transport him by a Navajo police vehicle to the San Juan County Detention Center.

¶5 Plaintiff sued various government actors and entities, some of which are not involved in this appeal because they were previously dismissed as parties. Plaintiff alleged various federal civil rights violations and torts by the Board of County Commissioners of San Juan County. See 42 U.S.C. §§ 1983, 1985 (1994 & Supp.1996). Plaintiff also sued the Navajo Nation for various civil rights violations and for the commission of a tort. See 25 U.S.C. § 1302 (1983). Plaintiff sued the Navajo police officers, both in their official and individual capacities, for alleged violations of 42 U.S.C. § 1983 and for various torts. Finally, Plaintiff sued the Navajo Nation President, Peterson Zah (Nation's President), both in his individual and official capacity, for an alleged violation of 42 U.S.C. § 1983.

¶6 The San Juan County Commissioners filed a motion to dismiss for improper venue. In an order dated October 16, 1996, the district court granted this motion. The Navajo Defendants filed a motion for summary judgment, which was granted on November 7, 1996, based on immunity and lack of jurisdiction.

II. DISCUSSION

A. Adequacy Of The Notice Of Appeal

¶7 Plaintiff appeals from orders that were final pursuant to Rule 1-054(C)(2) NMRA 1998 ("When multiple parties are involved, judgment may be entered adjudicating all issues as to one or more, but fewer than all parties. Such judgment shall be a final one unless the court, in its discretion, expressly provides otherwise ...."). See also Bracken v. Yates Petroleum Corp., 107 N.M. 463, 463, 760 P.2d 155, 155 (1988) (although not an adjudication on the merits, a dismissal of the complaint for lack of venue is nonetheless a final order for purposes of appeal). Our calendar notice requested that Plaintiff and the San Juan County Commissioners address the timeliness and place of filing of Plaintiff's notice of appeal of the October 16, 1996 order. This issue affects our jurisdiction. See Rules 12-201(A), -202(A) NMRA 1998.

¶8 Rule 12-201(A) requires the filing of a notice of appeal within thirty days after the judgment or order appealed from is filed. Rule 12-202(A) requires the filing of a notice of appeal with the district court clerk. The record reflects that Plaintiff filed his notice of appeal "in open court," not in the district court clerk's office, on November 15, 1996. According to the record, however, the notice of appeal was later filed in the clerk's office on November 22, 1996. The November 22, 1996, notice of appeal satisfied both Rule 12-201(A) and Rule 12-202(A) regarding the November 7, 1996 order.

¶9 November 15, however, was the thirtieth day from the October 16, 1996, order. As a result, Plaintiff timely appealed the October 16, 1996, order only if the November 15, 1996, "open court" filing satisfied Rule 12-202(A).

¶10 Plaintiff contends that he mailed his notice of appeal to the district court clerk's office on November 10, within the requisite thirty-day period. Plaintiff's counsel stated that she received the returned and unfiled notice of appeal on November 16, 1996, one day after the deadline. Plaintiff alleges that the clerk's office rejected the notice because it did not state that Plaintiff was appealing to this Court. See Rule 12-202(B)(4). These contentions, however, are not of record and this Court will therefore not consider them. See State ex rel. Alleman v. Shoats, 101 N.M. 512, 517, 684 P.2d 1177, 1182 (Ct.App.1984) (holding that appellate court will not review matters not of record). Plaintiff had the obligation to supplement the record with the allegedly rejected notice of appeal. See Dillard v. Dillard, 104 N.M. 763, 765, 727 P.2d 71, 73 (Ct.App.1986) (appellant has a duty of providing an adequate record sufficient to review the issue on appeal).

¶11 Govich v. North American Systems, Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991), held that appellate rule requirements are properly characterized as "mandatory," as opposed to "jurisdictional" requirements. Plaintiff did not file his notice of appeal in the district court clerk's office until November 22, 1996. He did, however, file his notice of appeal in open court on November 15, 1996. Because the clerk is merely an arm of the court, filing with the court rather than its agent constituted substantial compliance with Rule 12-202(A). See Halfen v. United States, 324 F.2d 52, 54 (10th Cir.1963); Boykin v. Huff, 121 F.2d 865, 873 (D.C.Cir.1941). We therefore address the merits of Plaintiff's appeal of the October 16, 1996 order, as well as the November 7, 1996 order.

B. Dismissal Of Plaintiff's Suit Against The Navajo Nation And The Native-American Defendants ¶1 Standard Of Review

¶12 Summary judgment is proper if no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. See Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992).

¶2 Navajo Nation

¶13 Case law establishes that Indian tribes are generally immune from suit in state courts without their consent. See Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 172, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977) ("Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe."); Sac & Fox Nation v. Hanson, 47 F.3d 1061, 1065 (10th Cir.1995) (without an explicit waiver, the Nation is immune from suit in state courts, even if suit results from commercial activity occurring off the Nation's reservation); DeFeo v. Ski Apache Resort, 120 N.M. 640, 642, 904 P.2d 1065, 1067 (Ct.App.1995).

¶14 Although sovereign immunity may be waived, see Puyallup Tribe, 433 U.S. at 172, 97 S.Ct. 2616; DeFeo, 120 N.M. at 642, 904 P.2d at 1067, Plaintiff has not alleged an express waiver by the Navajo Nation or its officials and employees. We note that the mutual aid agreement between the Navajo Nation and San Juan County states, "[N]othing in this Agreement ... shall be construed as a waiver of sovereign immunity by the Nation...." We therefore hold that the district court properly dismissed Plaintiff's suit against the Navajo Nation.

¶3 Official Capacities

¶15 We also affirm the district court's ruling that sovereign immunity barred Plaintiff's suit against the Navajo police officers and the Nation's President in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity"); Monell v. Department of Soc. Servs., 436 U.S. 658, 691 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (official-capacity suits "generally represent only another way of pleading an action against an entity of which an officer is an agent"); United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 512-13, 60 S.Ct. 653, 84 L.Ed. 894 (1940) (scope of Indian Nations' immunity is co-extensive with federal common law governmental immunity); DeFeo, 120 N.M. at 642, 904 P.2d at 1067; Ford v. New Mexico Dep't of Pub. Safety, 119 N.M. 405, 410-11, 891 P.2d 546, 551-52 (Ct.App.1994).

¶16 We believe that the district court properly dismissed Plaintiff's suit against the Navajo police officers and the Nation's President in their official capacities....