Thriftway Marketing Corp. v. State

810 P.2d 349, 111 N.M. 763
CourtNew Mexico Court of Appeals
DecidedOctober 18, 1990
Docket12351
StatusPublished
Cited by7 cases

This text of 810 P.2d 349 (Thriftway Marketing Corp. v. State) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thriftway Marketing Corp. v. State, 810 P.2d 349, 111 N.M. 763 (N.M. Ct. App. 1990).

Opinion

OPINION

ALARID, Judge.

The issue in this case is whether this court should, in our discretion, allow intervention of a third party in this appeal. Respondents (the state) appealed a writ of mandamus issued by the district court, ordering the state to approve a liquor license transfer requested by Thriftway Marketing Corporation (Thriftway). This court issued a calendar notice proposing to affirm the district court. The Nageezi Chapter (the Chapter), a political subdivision of the Navajo Tribe, was allowed amicus curiae status by this court, and filed a memorandum opposing the proposed affirmance. The state subsequently decided not to pursue the matter and moved to dismiss the appeal. At that point the Chapter moved to change its status from amicus to intervenor. We requested briefs from the Chapter and Thriftway regarding the intervention issue. After consideration of those briefs, we grant the motion to intervene for the reasons that follow.

A party attempting to intervene must file a timely application to do so. SCRA 1986, 1-024(B). In addition, that party must have a sufficient interest in the outcome of the action to warrant intervention, and must show its interests will be jeopardized if intervention is not allowed. See United States v. Imperial Irrigation Dist., 559 F.2d 509 (9th Cir.1977) (discussing interest necessary for intervention); Securities Exchange Comm’n v. Everest Management Corp., 475 F.2d 1236 (2d Cir. 1972) (affirming denial of request to intervene, in part on basis that would-be intervenors had other means of protecting interests). We address the timeliness and interests issues separately.

TIMELINESS

An attempt to intervene after final judgment has been issued by the district court should not be allowed in the absence of extraordinary or unusual circumstances. Cooper v. Albuquerque City Comm’n, 85 N.M. 786, 518 P.2d 275 (1974). One circumstance often cited as a reason for allowing such intervention occurs when a named party decides not to pursue an appeal of a judgment, and another person or entity will be adversely affected by the judgment. Id.; see also 3B J. Moore & J. Kennedy, Moore’s Federal Practice § 24.13 (2d ed.1987) [hereinafter Moore’s\ Normally the attempt to intervene occurs at the trial court level, because the would-be intervenor discovers at that level that the named party will not appeal. See generally cases cited in Moore’s, § 24.13. Intervention may be allowed even at the appellate level, however, in appropriate cases. Id. at 24.159. A key consideration in determining timeliness is whether the effort to intervene occurred shortly after the would-be intervenor discovered such action was necessary to protect its interests. See Cooper v. Albuquerque City Comm’n (intervention of amicus allowed after judgment, where amicus had no reason to seek intervention until he learned the city did not intend to appeal the adverse judgment).

In this case, the Chapter was granted amicus curiae status on appeal because its interests in the matter coincided with those of the state; in other words, it wished to argue on behalf of the state’s position on appeal. The Chapter requests that the writ of mandamus issued by the district court be reversed, which is the same relief requested by the state in the docketing statement. Until the state indicated its wish to abandon the appeal, the Chapter had no reason to suspect its interests would not be protected by the state. As soon as the Chapter discovered the state would no longer pursue the appeal, the Chapter moved to intervene. Under these circumstances, we hold that the motion to intervene was timely filed. See Cooper v. Albuquerque City Comm’n.

THE CHAPTER’S INTERESTS IN APPEAL

This action arose when Thriftway applied for a transfer of a liquor license. The state held hearings on the application and gave preliminary approval to the transfer. See NMSA 1978, § 60-6B-2, -3, and -4 (procedures for obtaining transfer). The matter was then referred to the San Juan County Commission for action by that entity. § 60-6B-4(F) (local governing body may disapprove transfer if, e.g., transfer of the license would be detrimental to the public health, safety, or morals of residents). The Commission failed to take action on the application within 30 days of a public hearing held to allow comment on the application. Pursuant to statute, therefore, the application was returned to the state. § 60-6B-4(G). The state indicated that it wished to hold another public hearing to enable it to properly consider the issues of the effect of the transfer on public health, safety, and morals. The state notified Thriftway that its preliminary approval encompassed only a limited review, which had not addressed whether transfer of the license would be detrimental to the public. For that reason, the state declined to simply approve the transfer.

Thriftway then filed an action for writ of mandamus in the district court, requesting that the state be ordered to approve the transfer. In the district court and on appeal, the state argued that, upon the failure of a local governing body to take action on an application, the applicable statute gives the director of the alcoholic beverage control department (director) discretion to approve or refrain from approving a transfer. This is also the Chapter’s position. The crux of the position espoused by the state and the Chapter is that to date there has not been a consideration of the effect of the transfer on public health, safety, and morals, and that such a consideration is necessary prior to approval of the transfer.

The Nageezi Chapter is a local governmental unit of the Navajo Tribe. Thriftway’s brief, in one sentence, appears to raise a question as to the Chapter’s ability to sue or be- sued as an entity. Thriftway did not argue the issue or cite to any authority bearing on the question. See In re Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984) (issues not supported by cited authority need not be considered by this court). A one-sentence statement that “[i]t may very well be that the Navajo Nation has not authorized the Chapter to participate in actions such as the present * * * ” is not sufficient to raise the issue for our consideration. A party desiring this court to consider an issue should at least provide argument in support of its position, even if no analogous authority can be found. Cf. id. In addition, we note that the Navajo tribal court system has implicitly recognized chapters’ ability to participate in lawsuits as organizations. See Sweetwater Chapter v. Teec Nos Pos Chapter, 2 Nav.R. 13 (1979) (suit between named chapters involving border dispute). For purposes of this case only, therefore, we assume the Chapter is an entity that can file suit in the courts of this state.

Information provided by Thriftway in its transfer application, and maps submitted by the Chapter with its brief in support of intervention, show that the proposed transfer site is located within the geographical boundaries of the Chapter. See Trujillo v. Dimas, 61 N.M. 235, 297 P.2d 1060 (1956) (court may take judicial notice of geographical facts provable by reference to maps). The site is not located on land owned by the Chapter or by any Navajo individual or group.

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Bluebook (online)
810 P.2d 349, 111 N.M. 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thriftway-marketing-corp-v-state-nmctapp-1990.