The Court of Appeals of the State of New Mexico Bruce
Total Page：16
File Type：pdf, Size：1020Kb
THE COURT OF APPEALS OF THE STATE OF NEW MEXICO BRUCE THOMPSON. as rersonai Wrongful Death Estate ofRICHARD BRO\VN Plaintiff-Appellants, vs. Court ofAppeals Case No: 30537 TORRANCE COlJNTY BOARD OF COMJvlISSIONERS, SHERIFF CLARENCE GIBSON, DOROTHY GIBSON, JEANINE ARNOLD, MICHAEL STACK, JAMES LEDBETTER, and DEPUTY JOH DOE, individually and as Torrance County Sheriffs officers and employees, and THE STATE OF NEW MEXICO, NEW MEXICO STATE POLICE, a division ofthe NEW MEXICO DEPARTMENT OF PUBLIC SAFETY, FARON SEGOTTA, CHIEF OF POLICE, SHARON DOE DISPATCHER, And OFFICER CHRIS COLEY, Individually and as New Mexico State Police Officers and employees, Defendants-Appellees. ON APPEAL FROM THE SEVENTHJUDICIAL DISTRICT COURT TORRANCE COUNTY, NEW MEXICO HON JUDGE KEVIN R. SWEAZEA APPELLANT'S REPLY BRIEF Rachel Higgins 509 Roma NW (505) 247-9339 110 facsimile Attorneys Plaintiff-Appellant TABLE OF CONTENTS Statement of Compliance ii Table of Authorities iii Introduction 1 Argument 3 1. Appellees have identified no evidence sufficient to support their claim that 911 dispatchers do not come within the waiver provision of section 41-4- 12 3 a. 911 dispatchers' principal duties are to maintain public order 3 b. If any questions of fact remain as to whether the 911 dispatchers' duties are of a "traditional law enforcement" nature, Appellant should have been allowed to conduct additional discovery 7 II. Appellees have identified no evidence sufficient to support their claim that 911 dispatchers do not come within the waiver provision ofsection 41-4-6......8 a. 911 dispatcher equipment is statutorily defined as governmental "equipmen. t"use d t 0 protect publiIC salec. ty .. 8 b. There is no support for the position that claims under §41-4-6 are limited to claims occurring on or in the immediate vicinity of governmental equipment. 11 ~VH'-'J,UJ.JVU .. ................................................................. 13 STATEMENTOFCOMPUANCE As required by Rule 12-213(0), undersigned counsel certifies this brief was prepared in 14-point Times New Roman typeface using Microsoft Word, and the body of 3 10 words. TABLE OF AUTHORITIES New Mexico Cases Baca v.State, 1996-NlVlCA-021, 121 NJv1.395,911 P.2d 1199 12 Bober v. New Mexico State Fair, 111 N.M. 644, 653, 808 P.2d 614, 623 (1991) 12 Callaway v. New Mexico Dept. ofCorrections, 117 N.M. 637, 642, 875 P.2d 393, 398 (Ct. App. 1994) 12 Castillo v. County ofSanta Fe, 107 N.M. 204, 207, 755 P.2d 48,51 (1988).......12 Cobos v. Dona Ana County Housing Auth., 1998-NMSC-049, 126 N.M. 418, 970 P.2d 1143 12 Coyazo v, State, 120 N.M. 47, 897 P.2d 234 (Ct. App. 1995) .4, 5 Dunn v. McFeeley, 1999-NMCA-084, ~25, 127 N.M. 513, 520, 984 P.2d 760, 767 3, 4,5 Fanners, Inc. v. Dal Mach. & Fabricating, Inc., III N.M. 6,9, 800 P.2d 1063, 1066 (1990) 10 In re Mokiligan, 2005-NMCA-021,137 N.M. 22, 24-25, 106 P.3d 584, 586- 87 1 Jemko, Inc. v. Liaghat, 106 N.M. 50, 54, 738 P.2d 922,927 (Ct.App.1987) 1 Leitneaa v. 1997-NlVlCA-041, 1 N.M. 3 ,3 ,940 P.2d 459, 1 12 v. Swift i\:feats, 91 N.M. 359, 3 74 , 286 (1978) 10 Pemberton v. Cordova, 105 N.M. 476, 478, 734 P.2d 254, 256 (Ct. App. 1987) 12 Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822,825 (1983) 12 133 N.M. 756,760 (NIv12003) .12, 13 Seal v. Carlsbad Indep. Sch. Dist., 116 N.tvL 101, 105, 860 P.2d 743, 747 (1993) 12 Weiss v. New Mexico Ed. of Dentistry, 110 N.M. 574, 581, 798 P.2d 175, 182 (1990) 10 Williams v. Central Consol. Sch. Dist., 1998-N1v1SC-006, 124 N.M. 488, 952 P.2d 978 12 United States District Court for the District of New Mexico Cases Garrison v. Polisar, et al., No. ClV 96-1801 LH/DJS (D.N.M. March 12, 1999 J. Hansen 3 Johnson v. Holmes, 377 F. Supp. 2d 1069,1078-81 (D.N.M. 2004) 12 United States Supreme Court Cases Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) 4 Statutes The Enhanced 911 Act (NMSA 1978 Section 63-9D-l, et seq. 1989)) 1, 2, 6, 9, 12 Mexico Tort Claims (NMSA 1978, §§ 41 1, et passim Public Telecommunicator (Ntv1SA 1 1 7C-9 (2003))................. , 4, 5 Rule 12-213(F)(4) NMRA 1 Rule 1-008(A) NMRA , 10 INTRODUCTION In his Brief-in-Chief, Appellant fairly assumed that the dispatchers in this case were not operating under an "enhanced" dispatch system, and therefore not subject to the law governing "Enhanced 91111 systems, since there was nothing in the record to indicate otherwise. On that state of the record, Appellant's Brief-in- Chief merely suggested that the 2005 amendment to the Enhanced 911 Act supported his argument that the legislature did not intend absolute immunity for 911 dispatchers. See BIC at 24-26. In response, and without any support in the record below, Appellees contend that the Enhanced 911 law does apply to the Torrance County dispatcher in this case-a fact which they seek to prove in this Court by the attachment of documents to their Answer Brief, contrary to the Appellate Rules. l If, in fact, Torrance County has deployed enhanced 911 technology, Appellant's claim that the legislature did not intend absolute TCA immunity for 911 dispatchers is strengthened, see BIC at 24-26, because there 1 In support ofthe declaration that the 911 Dispatch Systems at issue in this case are "Enhanced" Systems, Appellees attach for the first time on appeal voluminous exhibits. Rule 1 13(F)(4) NMRA explicitly prohibits attachments to appellate brief because "[ijt is improper to attach to a brief documents which are not part of the record on appeal." In re Mokiligan, 2005-NMCA 021,137 N.M. 22, 24-25, 106 P.3d 584, 586-87; Jemko, Inc. v. Liaghat, 106 N.M. 50, 54, 738 P.2d (Ct.App.1987). The documents should be stricken and counsel, no stranger to willful disregard would have been no need for the Enhanced 911 Act's grant of qualified immunity if, as Appellees contend, there was already absolute immunity under the TCA. In any event, whether or not Torrance County was a part of the Enhanced 911 system at the time of the events in this case becomes directly relevant only once the TeA issues are resolved in Appellant's favor and the case is returned to the trial court for a trial on the merits. At that juncture, the trial court, as the proper fact-finder, must determine the factual question of whether the Enhanced 911 Act applies, in order to determine the standard of proof which applies to a determination of dispatcher liability-Le., whether ordinary negligence under the TCA or the standard under the Enhanced 911 Act, requiring proof of "willful or wanton negligence or intentional acts." § 63-9D-10, NMSA 1978.3 The only question before this COUlt is whether the trial court erred in its finding that 911 dispatchers do not fall within a waiver of immunity under the TCA, and in failing to allow further discovery on certain factual questions. On 1978 § 63-9D-1O Enhanced 911 provides a limited immunity, "except for willful or wanton negligence or intentional acts." 3 Thus, Appellees' substantive Point IV based on the Enhanced 911 Act, see AB at 6-11, is both not relevant and inappropriate in the absence of district court fact-finding. It is also patently incorrect because that Act does not provide the absolute immunity that Appellees are claiming under the TCA. Also, Appellees' so-called "public policy" argument in Point III, see AB at 4-6, is also misplaced because whatever the budgetary difficulties that may currently be confronting the State do not answer the questions presented here. Our Tort Claims Act does not mean one a those points, as the following argument makes clear, Appellees' contentions are not well founded. ARGUMENT I. Appellees have identified no evidence sufficient to support their claim that 911 dispatchers do not come within the waiver provision of section 41-4-12 a. 911 dispatchers' principal duties are to maintain public order Appellant established in his Brief-in-Chief that by statutory definition, 911 dispatchers' principal duty is to "maintain the public order" by making "decisions affecting the life, health or welfare of the public or safety employees." NMSA 1978 §29-7C-2(F). Appellant further established that by statute 911 dispatchers are regularly engaged in activities related to police protection and constitute an important and indispensable component of the law enforcement function. Appellant established in his Brief-in-Chief that 911 dispatchers "directly impact public order." Dunn v. 1l1cFeeley, 1999-NMCA-084, ~25, 127 N.M. 513, 520, 984 760,767. In response, Appellees relied upon an unpublished Federal District of New Mexico opinion. In that opinion, Judge C. LeRoy Hansen acknowledged that "[n]either party has alerted the Court to any New Mexico case that addresses whether police dispatchers or 911 operators are law enforcement officers under the the Court has found none... " Garrison at pp. 29-30. Thus, Judge Hansen made an "Erie,,4 guess as to how the New Mexico appellate courts would rule on the issue. Judge Hansen's opinion is neither binding nor persuasive authority, and his analysis is incorrect, 911 dispatchers are not "secretaries or administrative assistants," as he believed, and are not analogous to any of the other officials discussed in the other cases cited by Appellees.