Newsome v. Farer
| Citation | 1985 NMSC 96,103 N.M. 415,708 P.2d 327 |
| Decision Date | 30 October 1985 |
| Docket Number | No. 15647,15647 |
| Parties | , 28 Ed. Law Rep. 634 Thomas Ray NEWSOME, Jr., Petitioner-Appellant, v. Tom J. FARER, President University of New Mexico Respondent-Appellee. |
| Court | Supreme Court of New Mexico |
The suit below was dismissed by the trial court. Appellant states that on appeal he "challenges":
1. The court's refusal to consider and decide the issues presented in the motion creatively entitled "Writ of Habeas Data."
2. The court's adopted findings of fact, embodied in its dismissal order of 29 August 1984.
3. The court's refusal to conduct the scheduled Habeas Data hearing, and to clarify its dismissal order.
4. The court's denial of his motion for a Vaughn Index.
5. The court's refusal to relieve Newsome from the order of dismissal because of the misconduct of defense counsel.
Despite appellant's identification of those matters as appealable issues (and his accompanying brief containing, with table of contents and appendices, 109 pages, as well as his unauthorized, untimely addendum of 16 pages of additional authorities), we consider it necessary to state at the outset those which matters we are persuaded are not issues for consideration.
Notwithstanding plaintiff's prolix exhortations, this case is not in a posture that calls for a discussion of legal philosophies or precepts concerning a trial judge's demeanor or his obligation to "seek the truth" during the course of a trial. No comment is required on the purpose, application, scope or extent of the Administrative Procedures Act. It does not present us with necessity for a decision on what evidence is discoverable or admissible in Freedom of Information lawsuits, or the purpose for which the Freedom of Information Act was passed, or whether any such extraordinary writ as one for "habeas data" exists. Nor is there any justiciable issue in this appeal concerning the University's duty to maintain specific records according to any specific system.
The sole issue on this appeal is the propriety of the trial court's dismissal upon plaintiff's deliberate failure or refusal to follow the discovery procedures directed by the court, made upon plaintiff's petition for production of certain University records.
We are urged to reverse the dismissal on grounds that the sanction was too harsh; that it was imposed upon one who appeared pro se below (and does so here, as well); that appellant satisfactorily explained his non-appearance to inspect the documents ordered to be produced; and that the trial court's findings concerning his non-compliance are clearly erroneous.
We dispose of the last point first. It is not necessary under NMSA 1978, Civ.P.Rule 41(b) (Repl.Pamp.1980), that the court make findings and conclusions to support an order of dismissal for failure to comply with a court order. 5A J. Moore and J. Lucas, Moore's Federal Practice p 52.08 (2d ed. 1985). Even though findings were entered, the order of dismissal was not an adjudication on the merits; it was a sanction imposed for the unexcused arrogance of petitioner's position that, as he states in his brief, he "was free to ignore" attendance at the time and place of production of documents ordered by the court to be produced.
The chronology of this case discloses that Newsome filed a suit on January 10, 1984, presumably in Mandamus and pursuant to the New Mexico Inspection of Public Records Act, NMSA 1978 Secs. 14-2-1, 14-2-3. Thereafter, he wrote two letters to the then-President of the University requesting, the first time, certain record-management and written policy records and "all indexes pertaining to the within named public records," and in the second request, all records concerning an internal audit of the University basketball "scandal." The University offered to produce for inspection all documents examined by the auditors. Newsome, instead, moved for a "Vaughn Index" (a tool to identify discovery objections that has been used in some federal courts for cases arising under the Freedom of Information Act). The motion was denied.
On March 22, 1984, the court ordered the University officials to produce all they had offered, plus those records requested in petitioner's pleadings, or to index and give reasons for not producing any documents requested by Newsome--an order not completely unlike the "Vaughn Index" procedure.
The University advised Newsome of the place and time and general nature of the records to be produced and requested that he give notice if he wished to postpone inspection to another mutually agreeable time. Newsome neither answered the University's letter nor appeared at the production of documents.
At a subsequent hearing Newsome was asked why he had not attended the production of documents. He responded that there was no evidence that the University had produced the documents listed in its certificate of compliance and that he knew the records offered to be produced were not the ones he had requested. Following that hearing, the court issued a letter-order to Newsome requiring that he respond within 15 days and set out why his suit should not be dismissed in view of his "failure to take advantage of the disclosures that were to be made as a result of the Order of March 22."
Newsome's 107-page reply, tendered 18 days from the date of the court's letter, did not explain why he did not attend production of the documents requested. Instead, it attacked the accuracy and veracity of the University's Certificate of Compliance and supporting affidavit, complained about the court's denial of the "Vaughn Index" motion, and asserted that the University's refusal to waive its affirmative defenses rendered its partial disclosure of documents meaningless. Newsome's written response further asserted that "Petitioner exercised his best judgment that if he accepted partial disclosure of such records as a matter of grace, rather than as a legal right, it would be an issue 'capable of repetition, yet evading review,' that requires an authoritative judicial determination, as a matter of law." (Emphasis in Newsome's response.)
Thereafter, Newsome was given three additional opportunities at three separate hearings to show cause why his suit should not be dismissed. At the first of those hearings, the University moved for dismissal pursuant to Rule 41(b). At each hearing, Newsome reiterated his initial argument that he believed the production of documents would not contain all of the material he desired, and that he was not willing to "waste his time" on it.
On August 29, 1984 the trial court issued its order, dismissing the suit with prejudice, "pursuant to Civ.P.R. 41(b) of the rules of Civil Procedure and the court's inherent authority."
From Newsome's voluminous briefs we glean two basic arguments relevant to the issue of dismissal: First, he claims that he is not guilty of refusing to comply with the court's order because: (1) his attendance at document production was optional or excusable, and (2) he fully complied with the trial court's letter-order to explain his absence. Second, he argues that even if his conduct amounted to non-compliance, the trial court abused its discretion in dismissing the case with prejudice.
It was and is Newsome's position that without a "Vaughn Index", neither he nor the court could determine exactly which documents were not produced or whether the University was justified in withholding them. He also implies that a "Vaughn Index" would have simplified the task of inspecting those documents that were produced. For these reasons, says Newsome, he "made a judgment call" and "declined to go on a wild goose chase."
This argument demonstrates Newsome's insistence that only he would dictate the progress of this action. Even if there should exist a legal basis for Newsome's "Vaughn Index" motion, his response to the court's denial of that motion should not have been to ignore the court's order on production. A litigant is not free to disregard an order of the court simply because he disagrees with it.
Newsome also excuses his absence from the production of documents on the ground that the court's order required him to pay the costs of production. He did not raise that objection below; it cannot be raised here, particularly since the University subsequently volunteered to produce the great bulk of the records free of charge.
Finally, Newsome asserts his belief that he was not required to attend production of documents because the court did not affirmatively order him to do so. We view this argument as a disingenuous attempt to invoke special privilege because of his pro se status. He did not claim ignorance or misunderstanding in the trial court, and the assertion here conveniently overlooks the rule that a pro se litigant must comply with the rules and orders of the court, enjoying no greater rights than those who employ counsel. State ex rel. State Highway Commission v. Sherman, 82 N.M. 316, 319, 481 P.2d 104, 107 (1971); Wilson v. Albuquerque Board of Realtors, 82 N.M. 717, 719-20, 487 P.2d 145, 147-48 (Ct.App.1971). Although pro se pleadings are viewed with tolerance, Birdo v. Rodriguez, 84 N.M. 207, 209, 501 P.2d 195, 197 (1972), a pro se litigant, having chosen to represent himself, is held to the same standard of conduct and compliance with court rules, procedures, and orders as are members of the bar.
Production of documents was ordered upon Newsome's request. Even though one may not be legally trained, common sense dictates that when a party petitions the court to enforce a right to inspect public records, and the court responds by ordering that requested documents be produced, the petitioner is not then free to disregard the arrangements made to comply with the relief ordered, simply because the court did...
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