Schlieter v. Carlos

• Decision Date: 15 June 1989
• Docket Number: No. 18303,18303
• Citation: 1989 NMSC 37,775 P.2d 709,108 N.M. 507
• Parties: Christina SCHLIETER, Plaintiff, v. Christine CARLOS, M.D., et al., Defendants.
• Court: New Mexico Supreme Court

Page 709

775 P.2d 709

108 N.M. 507

Christina SCHLIETER, Plaintiff, v. Christine CARLOS, M.D., et al., Defendants.

No. 18303.

Supreme Court of New Mexico.

June 15, 1989.

James A. Branch, Jr., Albuquerque, for plaintiff.

[108 N.M. 508] Rodey, Dickason, Sloan, Akin & Robb, W. Robert Lasater, Jr., Patrick M. Shay, Albuquerque, for defendant Carlos.

Miller, Stratvert, Torgerson & Schlenker, Margo J. McCormick, Alice Tomlinson Lorenz, Albuquerque, for defendant Eilert.

Farlow, Simone, Roberts & Weiss, LeRoi Farlow, Jana S. Perry, Albuquerque, for defendant Los Alamos Medical Center.

Montgomery & Andrews, Richard L. Puglisi, Deborah J. Van Vleck, Albuquerque, for defendant Los Alamos Obstetrical & Gynecological Services.

William L. Lutz, U.S. Atty., Douglas C. Henson, Asst. U.S. Atty., Albuquerque, for defendant U.S. Dept. of Energy.

OPINION

PER CURIAM.

Plaintiff filed a medical malpractice action in the United States District Court for the District of New Mexico, naming several defendants, some of whom are covered as health care providers under the New Mexico Medical Malpractice Act, NMSA 1978, 41-5-1 to -28 (Repl.Pamp.1986), and others of whom are not. One of the defendants covered under the Act moved to sever for separate trial certain future medical expense issues involving only the defendants not covered under the Act. Plaintiff opposed this motion, arguing inter alia that the Act violates provisions for equal protection, due process, and privileges and immunities under the New Mexico and United States Constitutions, and the provision for separation of powers under the New Mexico Constitution.

In light of this challenge to the constitutionality of the Act, and on motion of the plaintiff, the federal court, pursuant to NMSA 1978, Section 34-2-8 (Repl.Pamp.1981) and SCRA 1986, 12-607, has certified to this Court fourteen separate constitutional questions involving novel propositions of New Mexico law. Under Section 34-2-8(A) and Rule 12-607(A), we may undertake at our discretion to answer such questions when the answers are "determinative" of the cause before the federal court. For the reasons discussed below, we decline to accept the certification.

The voluminous federal court record, absent transcripts of depositions, has been delivered to us for our perusal; the certification request, however, contained neither a statement of relevant facts nor a stipulation of such facts by the parties. Consequently, we first consider the significance of the determinative answer requirement in conjunction with Rule 12-607(C)(3), which provides that a certification request shall set forth "either a statement by the certifying court of the facts relevant to the question certified, showing the nature of the controversy in which the questions arose, or a stipulation of such facts by the parties, which has been approved by the certifying court."

Avoidance of advisory opinions. The intent of the certification of facts and determinative answer requirements is that this Court avoid rendering advisory opinions. Relative to the first requirement, it is sufficient if the certification of facts and the record contain the necessary factual predicates to our resolution of the question certified, and it is clear that evidence admissible at trial may be resolved in a manner requiring application of the law in question. Relative to the second requirement, our answer must be determinative in that it resolves the issue in the case out of which the question arose, and the resolution of this issue materially advances the ultimate termination of the litigation.

A survey of our previous opinions on certification of questions from the federal district court illustrates the interplay of these two criteria. To date, we by and large have limited our acceptance of certifications prior to judgment to those cases in which there is no dispute over the factual predicates to the Court's determination of the questions certified, and our answer either disposes of the entire case or controversy, see Western Sav. & Loan Ass'n v. CFS Portales Ethanol I, Ltd., 107 N.M. 143, 754 P.2d 520 (1988); Continental Ins. Co. v. Fahey, 106 N.M. 603, 747 P.2d 249 (1987); Hamilton Test Systems, Inc. v. City of Albuquerque, 103 N.M. 226, 704 [108 N.M. 509] P.2d 1102 (1985); Taylor v. Delgarno Transp., Inc., 100 N.M. 138, 667 P.2d 445 (1983); Atencio v. Board of Educ. of Penasco Indep. School Dist. No. 4, 99 N.M. 168, 655 P.2d 1012 (1982); or disposes of a pivotal issue that defines the future course of the case. See Tondre v. Thurmond-Hollis-Thurmond, Inc., 103 N.M. 292, 706 P.2d 156 (1985); Anchondo v. Corrections Dep't, 100 N.M. 108, 666 P.2d 1255 (1983); Wells v. County of Valencia, 98 N.M. 3, 644 P.2d 517 (1982); Security Trust v. Smith, 93 N.M. 35, 596 P.2d 248 (1979).

Defendants resisting the certification here argue that this Court lacks jurisdiction because the questions certified are not "determinative" in the sense that our answers will not determine the existence of a cause of action, nor put an end to litigation in this case. See In re Richards, 223 A.2d 827 (Me.1966); In re Certified Question, 549 P.2d 1310 (Wyo.1976). Contrary to the construction urged by defendants, Rule 12-607 does not contemplate a showing of no genuine issue as to any material fact to the end that our pretrial answer to novel questions of New Mexico law would be "determinative" in this narrow sense. For example, in United States v. Martinez, 101 N.M. 423, 684 P.2d 509 (1984), we held that a New Mexico judge could represent himself in civil proceedings without engaging in the practice of law as proscribed by the Canons of Judicial Conduct. This holding, although determinative of a major procedural question, i.e., who would conduct the defense at trial, was not dispositive of the existence of a claim or defense on the merits and did not put an end to the criminal proceedings.

Nevertheless, as discussed in the following sections of this opinion, the questions certified to us in this case are not accompanied by sufficient nonhypothetical, evidentiary facts to allow us to adequately determine the constitutionality of the Act; moreover, we conclude that even if we were able to answer the questions certified, our answer would not be determinative of the issue out of which they arose--i.e., the motion to bifurcate.

Inadequate development of the record. Plaintiff asserts that important individual interests and fundamental rights are implicated by the constitutional questions raised. Accordingly, Dr. Carlos and other defendants who support the constitutionality of the Act may well have the burden of proving that the legislation in question has a "substantial relationship to a legitimate or important governmental purpose." See Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 699, 763 P.2d 1153, 1164 (1988) (dram shop act limitation on recovery of damages implicated a substantial and important individual interest calling for heightened scrutiny of constitutional validity). In reply to plaintiff's motion for certification, Carlos requested of the federal court that should it intend to determine the constitutionality of the Act:

* * * it do so through a fully developed record, whereby the parties can present evidence as to the impact of the limits of recovery contained in the New Mexico Malpractice Act, and the relevant state interests involved. Such a showing cannot be made absent a full evidentiary hearing before the Court where testimony can be taken.

To this reply were attached affidavits tending to establish that a crisis in obtaining...