author: Justice Dirk Sandefur delivered the Opinion of the Court. Justice Beth Baker, dissenting.

text:
    CITY OF HELENA, Plaintiff and Appellee, v. Ronald Scott PARSONS, Defendant and Appellant.
    DA 17-0576
    Supreme Court of Montana.
    Argued and Submitted: July 25, 2018 Decided: March 6, 2019
    For Appellant: Lance P. Jasper (argued), F. Peter Landsiedel, Reep, Bell, Laird & Jasper, P.C., Missoula, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General (argued), Helena, Montana, Thomas J. Jodoin, Helena City Attorney, Todd Douglas Baker, Deputy Helena City Attorney, Helena, Montana
   Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Ronald Scott Parsons appeals the judgment of the Montana First Judicial District Court, Lewis and Clark County, affirming his convictions for misdemeanor negligent endangerment and reckless driving in the City of Helena Municipal Court. We address the following restated issue on appeal:

Whether the Municipal Court erroneously precluded evidence, argument, and jury instruction on § 46-6-502, MCA (citizen arrest authority), as a fact defense relevant to the sufficiency of the State's proof of the elements of the offenses?

¶2 We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On a March morning in 2016, City of Helena police were engaged in an extended high-speed chase with a fleeing motorcycle rider through residential neighborhoods, school zones, and along main thoroughfares in Helena. While northbound on Benton Avenue toward Custer Avenue in a pickup truck with a boat trailer in tow, Parsons first encountered the chase as the motorcycle and pursuing police car were oncoming southbound. Parsons observed the motorcycle traveling at a high rate of speed with the police car in hot pursuit-emergency lights and siren activated. After turning eastbound onto Custer Avenue after the chase passed by, Parsons again saw the speeding motorcycle and pursuing police car, this time rapidly approaching him from behind as he proceeded on Custer toward Montana Avenue. Seeing the fleeing motorcycle as an imminent risk to public safety and intent on stopping it to allow the pursuing police to apprehend the driver, Parsons slowed and pulled his pickup across the oncoming westbound lane, thereby fully blocking both lanes in an attempt to force the motorcycle to stop. Not intent on stopping, the motorcyclist instead tried to drive up the curb to go around the roadblock on the sidewalk.

However, the motorcycle crashed on the curb, resulting in injury to the rider. The pursuing police immediately arrived, stopped, and arrested the injured motorcyclist, ultimately charging him with various offenses related to the chase. Police also later charged Parsons with misdemeanor negligent endangerment and reckless driving in violation of §§ 45-5-208(1) and 61-8-301(1), MCA.

¶4 At his subsequent jury trial, on the State's motion, the Municipal Court precluded Parsons from presenting evidence and argument that, rather than in negligent, willful, or wanton disregard for the safety of others as alleged by the State, he acted reasonably under the circumstances to assist police in apprehending the fleeing motorcyclist as authorized by § 46-6-502, MCA (citizen arrest authority). Ruling that the authority to make a citizen's arrest did not render Parsons immune from the charged offenses and that he lacked the requisite probable cause for a citizen's arrest in any event, the Municipal Court granted the State's motion in limine and further refused to instruct the jury on Parsons's authority to make a citizen's arrest. At the close of trial, the jury convicted Parsons of misdemeanor negligent endangerment and reckless driving as charged. After the District Court affirmed the Municipal Court judgment on intermediate appeal, Parsons timely appealed here.

STANDARD OF REVIEW

¶5 On appeal from a municipal court of record, district courts function as intermediate appellate courts with the scope of review "confined to review of the record and questions of law. ..." Sections 3-5-303, 3-6-110(1), MCA ; State v. Luke , 2014 MT 22, ¶ 9, 373 Mont. 398, 321 P.3d 70. On appeal of a lower court judgment following intermediate appeal, we review the record independently of the district court as if appealed directly to this Court without intermediate review. State v. Maile , 2017 MT 154, ¶ 7, 388 Mont. 33, 396 P.3d 1270 ; Stanley v. Lemire , 2006 MT 304, ¶¶ 25-26, 334 Mont. 489, 148 P.3d 643. Upon our independent review, we review lower court findings of fact for clear error, conclusions of law de novo for correctness, and discretionary rulings for an abuse of discretion. City of Missoula v. Kroschel , 2018 MT 142, ¶ 8, 391 Mont. 457, 419 P.3d 1208 ; State v. Davis , 2016 MT 206, ¶¶ 5-6, 384 Mont. 388, 378 P.3d 1192. Trial courts have broad discretion in formulating jury instructions on the applicable law.

State v. Kaarma , 2017 MT 24, ¶ 7, 386 Mont. 243, 390 P.3d 609. We review jury instructions as a whole for whether they fully, correctly, and fairly instruct the jury on the law applicable to the facts at issue in the case. State v. Dunfee , 2005 MT 147, ¶ 20, 327 Mont. 335, 114 P.3d 217.

DISCUSSION

¶6 Whether the Municipal Court erroneously precluded evidence, argument, and jury instruction on § 46-6-502, MCA (citizen arrest authority), as a fact defense relevant to the sufficiency of the State's proof of the elements of the offenses?

¶7 Parsons asserts that his authority and intent to make a citizen's arrest were critically relevant jury considerations as to whether he acted in negligent, willful, or wanton disregard for the safety of others as alleged by the State. The State contrarily asserts that Parsons's authority and intent to make a citizen's arrest was not relevant to whether he committed the charged offenses and that he lacked sufficient cause to make a citizen's arrest in any event. We agree with Parsons.

¶8 A person commits the offense of negligent endangerment if the person "negligently engages in conduct that creates a substantial risk of death or serious bodily injury to another...." Section 45-5-208(1), MCA. As pertinent here, a person acts "negligently" if the "person consciously disregards a risk" that the person's conduct will create a substantial risk of death or serious bodily injury to another. Section 45-2-101(43), MCA. In contrast to simple negligence, "[t]he risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe" under the circumstances. Section 45-2-101(43), MCA. In this context, a "gross deviation" is "a deviation that is considerably greater than lack of ordinary care." Section 45-2-101(43), MCA. As pertinent, a person commits the offense of reckless driving if the person "operates a vehicle in willful or wanton disregard for the safety of persons or property." Section 61-8-301(1)(a), MCA. As referenced in § 61-8-301(1), MCA, "willful or wanton disregard" means intentional or conscious disregard. See § 1-1-204(5), MCA ; State v. Stanko , 1998 MT 323, ¶ 65, 292 Mont. 214, 974 P.2d 1139. Except as to certain offenses not at issue here, the State must prove beyond a reasonable doubt that a criminal defendant acted with the requisite mental state as "to each element" of a charged offense. Sections 26-1-403(2), 45-2-103(1), MCA.

¶9 Against that backdrop, a "private person may arrest another when there is probable cause to believe that the [other] is committing or has committed an offense and the existing circumstances require the person's immediate arrest." Section 46-6-502(1), MCA. The arresting "private person may use reasonable force to detain the arrested person." Section 46-6-502(1), MCA (2009 Mont. Laws ch. 332, § 8 (HB 228)). Upon an arrest, the arresting citizen must "immediately notify the nearest available law enforcement agency or peace officer and give custody of the person arrested to the officer or agency." Section 46-6-502(2), MCA. In accord with the common law dating back to 1285, Montana's territorial and state legislatures have continually authorized citizens' arrests since 1872. See State v. Updegraff , 2011 MT 321, ¶¶ 27-33, 363 Mont. 123, 267 P.3d 28. The manifest purpose of § 46-6-502, MCA, is to enhance public safety by authorizing a private citizen "to take another into custody" on probable cause of criminal activity and to then turn the person over to "trained law enforcement personnel" as soon as possible to trigger "the normal processes and safeguards of the criminal justice system." Updegraff , ¶¶ 33-34. When a citizen acts within prescribed statutory parameters, the citizen arrest authority is "parallel to but distinct from" the arrest authority of peace officers. Updegraff , ¶ 34 (citing 1991 Commission Comments, internal punctuation omitted).

¶10 The term "arrest" means "taking a person into custody in the manner authorized by law." Section 46-1-202(3), MCA. In the case of a citizen's arrest, "arrest" means restraining a person in accordance with § 46-6-502(1), MCA, pending immediate notification and relinquishment of the person to a law enforcement officer or agency. See §§ 46-1-202(3), 46-6-104(1), -502, MCA. See also State v. May , 2004 MT 45, ¶ 13, 320 Mont. 116, 86 P.3d 42 (elements of an "arrest" include authority to arrest; assertion of the authority with intent to arrest; and restraint of the person).

¶11 Here, the State acknowledges that Parsons "pulled his truck and trailer across Custer Avenue to aid law enforcement and stop the fleeing motorcyclist." It nonetheless asserts that the citizen's arrest statute did not apply because, rather than attempting to effect a citizen's arrest, Parsons was merely trying to set up a roadblock in accordance with § 46-5-502(1)(a), MCA (temporary law enforcement roadblocks for "apprehen[sion of] persons known to be wanted" for a violation of law). However, pursuant to its express language, § 46-5-502, MCA, is merely an affirmative grant of authorization for law enforcement roadblocks. By its terms, § 46-5-502, MCA, has no application to private citizens and thus no application here. Even by negative implication, nothing in the language of § 46-5-502, MCA, evinces any legislative intent to preclude a citizen from using a vehicle or other physical means to temporarily block a road as the mechanism of force to effect an arrest authorized by § 46-6-502(1), MCA. Without limitation other than circumstantial reasonableness, § 46-6-502(1), MCA, expressly authorizes a private person attempting to effect an arrest upon probable cause to "use reasonable force to detain the arrested person." In the current absence of a narrower statutory definition, what is or is not "reasonable force" in degree or mechanism is an open-ended question of fact dependent on the unique facts and circumstances of each case.

¶12 Here, the record clearly manifests substantial, uncontradicted evidence that, upon observing a fast-approaching motorcyclist fleeing from police at high speed through town at imminent risk to public safety, Parsons attempted to stop the motorcycle by temporarily blocking the road with his vehicle until the pursuing police could arrive, stop, and arrest the rider as so obviously intended. Moreover, it is further uncontradicted and beyond material dispute on the record that, regardless of whether the police desired his assistance or would have eventually apprehended the motorcyclist on their own, Parsons's roadblock did in fact immediately stop and detain the fleeing suspect long enough for the pursuing police to stop and physically arrest him. It is certainly conceivable that, with knowledge that § 46-6-502, MCA, authorizes citizens to use reasonable force to effect a citizen's arrest until police arrive, the jury could have at least found reasonable doubt as to whether Parsons acted in negligent, willful, or wanton disregard of the safety of others under the totality of the circumstances. Thus, Parsons's asserted authority and intent to make a citizen's arrest was a materially relevant factual consideration, inter alia , as to whether he acted in negligent, willful, or wanton disregard for the safety of others beyond a reasonable doubt as alleged by the State.

¶13 Even if Parsons's authority to make a citizen's arrest might otherwise be relevant, the State further asserts, as concluded by the Municipal Court, that he in any event lacked the requisite probable cause to make a citizen's arrest on the particular facts of this case. In support of this assertion, the State correctly asserts that Parsons had no idea why police were chasing the fleeing motorcycle. However, by its express language, § 46-6-502(1), MCA, does not necessarily require in every circumstance that the citizen know the specific offense committed or the specifics of the offense. It merely requires that the citizen have "probable cause to believe that the person is committing or has committed an offense" and that "the existing circumstances require the person's immediate arrest." Section 46-6-502(1), MCA. Probable cause is not talismanic. It is no more than knowledge of facts and circumstances "sufficient to warrant a reasonable person to believe that another person is committing or has committed an offense." City of Missoula v. Iosefo , 2014 MT 209, ¶ 10, 376 Mont. 161, 330 P.3d 1180 ; State v. Schubert , 2010 MT 255, ¶ 18, 358 Mont. 286, 244 P.3d 748.

¶14 Here, Parsons personally observed a motorcycle fleeing at high speed from pursuing police-lights flashing, siren blaring. Those facts alone were sufficient for an objectively reasonable belief that the motorcyclist had not only committed an offense, but further, that he or she was then in the process of committing additional offenses by attempting to elude pursuing police. Probable cause is inherently a question of fact under the totality of the circumstances known. On the record here, a jury could have reasonably concluded that Parsons had probable cause to believe that the motorcyclist had committed an offense and that circumstances required his or her immediate arrest. The jury could have thus further found reasonable doubt as to whether Parsons acted in negligent, willful, or wanton disregard of the safety of others as alleged by the State or, as he asserts, reasonably under the circumstances.

¶15 In further tacit acknowledgement of the relevance of Parsons's citizen's arrest authority and intent, the State asserts that the Municipal Court did not err in any event because Parsons's conduct was clearly unreasonable under the circumstances. However, like probable cause, the question of what constitutes "reasonable force" as referenced in § 46-6-502(1), MCA, is inherently a question of fact under the totality of the circumstances. Regardless of other supportable jury views, the record reflects substantial evidence upon which a jury could have reasonably concluded that Parsons was attempting to effect a citizen's arrest of the fleeing motorcyclist using a mechanism and degree of force reasonable under the circumstances. If so, that factual consideration would have been materially relevant to whether he acted in negligent, willful, or wanton disregard for the safety of others beyond a reasonable doubt as alleged by the State.

¶16 Finally, though acknowledging that Parsons was not attempting to assert his citizen's arrest authority and intent as an affirmative defense, the State repeatedly asserts that the Municipal Court did not err in any event because the authority to make a citizen's arrest did not "immunize" Parsons from criminal liability. While we agree, that point of law does not necessarily preclude Parsons's authority and intent to make a citizen's arrest as a factual consideration relevant to the sufficiency of the State's proof of the elements of the charged offenses.

¶17 As a matter of law, proof of the elements of an affirmative defense completely negates otherwise sufficient proof of the essential elements of a charged offense. See State v. Nicholls , 200 Mont. 144, 150, 649 P.2d 1346, 1350 (1982) (defining affirmative defenses). In contrast to an affirmative defense, Parsons merely sought to present evidence and argument on his authority and intent to make a citizen's arrest as a non-affirmative fact defense, i.e., as a relevant factual consideration among others to undermine or rebut the State's proof on the elements of the charged offenses. In particular, Parsons sought to present evidence and argument supported by jury instruction that, rather than in negligent, willful, or wanton disregard of the safety of others, he acted reasonably under the circumstances within his lawful authority to make a citizen's arrest using reasonable force. With appropriate instruction that the authority to make a citizen's arrest does not necessarily preclude criminal liability but is nonetheless a factual matter the jury may consider, inter alia , in determining whether Parsons acted in negligent, willful, or wanton disregard of the safety of others beyond a reasonable doubt as alleged, the jury could have fairly assessed the sufficiency of the State's evidence as a matter of fact without prejudice to either party. Consequently, as a matter of law on the record in this case, Parsons's contemplated assertion of his authority and intent to make a citizen's arrest was not an assertion of an affirmative defense or immunity from criminal liability.

¶18 The Dissent correctly asserts that § 46-6-502(2), MCA ("private person making an arrest shall immediately notify the nearest available law enforcement agency or ... officer and give custody of the person" thereto), "does not authorize a private citizen ... to involve himself in an active law enforcement action." True. But nor does § 46-6-502(2), MCA, expressly or implicitly preclude a citizen's arrest when police are pursuing a suspect with intent to arrest but have yet to apprehend him or her under circumstances where, as here, it is uncertain that they will be able to do so. The Dissent erroneously relies on a clearly distinguishable case where the purported private citizen (i.e., out-of-jurisdiction police officer) exceeded any citizen arrest authority by continuing with field sobriety testing of a stopped suspect in custody after local police had arrived and were standing by. In stark contrast, the pursuing police in this case were hardly "at the scene" when Parsons stopped the fleeing motorcyclist-they were still chasing and had yet to catch him. If the Legislature is inclined to limit the citizen's arrest authority to better conform to the demands, concerns, or preferences of modern law enforcement, it is certainly free to do so. In the meantime, we must simply construe § 46-6-502, MCA, as clearly and unequivocally written.

¶19 Trial courts have broad discretion in formulating jury instructions which we will affirm as long the instructions as a whole fully, correctly, and fairly instruct the jury on the applicable law. State v. Erickson , 2014 MT 304, ¶¶ 21, 35, 377 Mont. 84, 338 P.3d 598 ; State v. Robbins , 1998 MT 297, ¶ 36, 292 Mont. 23, 971 P.2d 359, overruled on other grounds by State v. LaMere , 2000 MT 45, ¶¶ 25, 61, 298 Mont. 358, 2 P.3d 204. Trial courts must accordingly instruct the jury on all materially relevant theories and issues supported by the evidence. Erickson , ¶ 35 ; Kaarma , ¶ 23 ; State v. Johnson , 1998 MT 289, ¶ 35, 291 Mont. 501, 969 P.2d 925 ; State v. Grant , 221 Mont. 122, 131-32, 717 P.2d 562, 569 (1986). See also Billings Leasing Co. v. Payne , 176 Mont. 217, 225, 577 P.2d 386, 391 (1978) (trial court duty to "fully and correctly" instruct jury on "applicable law" to "guide, direct, and assist" in "an intelligent understanding of the legal and factual issues involved in their search for truth" (citing Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure : Civil § 2556 (1971) )). On the record in this case, Parsons's asserted authority and intent to make a citizen's arrest to aid law enforcement in the apprehension of the fleeing motorcyclist would have been a materially relevant factual consideration, inter alia , as to whether he acted in negligent, willful, or wanton disregard of the safety of others beyond a reasonable doubt as alleged. His defense theory was thus legally and factually sufficient for jury consideration as to whether the State proved the essential elements of the charged offenses beyond a reasonable doubt. For that purpose, we hold that the Municipal Court erroneously precluded evidence, jury instruction, and argument on § 46-6-502(1), MCA.

CONCLUSION

¶20 In contrast to an affirmative defense or assertion of immunity from criminal liability, Parsons's asserted authority and intent to make a citizen's arrest were factual considerations materially relevant on the record in this case to whether he acted in negligent, willful, or wanton disregard for the safety of others beyond a reasonable doubt as alleged by the State. We hold that the Municipal Court erroneously precluded evidence, jury instruction, and argument on Parsons's authority to make a citizen's arrest under § 46-6-502(1), MCA.

¶21 Reversed and remanded for a new trial.

We concur:

LAURIE McKINNON, J.

INGRID GUSTAFSON, J.

LUKE BERGER, J.

District Court Judge Luke Berger

Sitting for Justice Jim Rice

Justice Beth Baker, dissenting.

¶22 The Municipal Court properly excluded Parsons's requested jury instruction regarding § 46-6-502, MCA, because the statute has no application to the facts of this case. Read in its entirety, the plain language of the statute provided Parsons with no authority to inject himself into an active police pursuit by creating a roadblock. Parsons was allowed to challenge the mental state requirements of the charged offenses-as he did-by arguing that he thought he was assisting law enforcement and protecting the public. But he was not entitled to have a jury instruction or to have the trial court take judicial notice of an inapplicable statute.

¶23 Statutory interpretation is a " 'holistic endeavor' and must account for the statute's text, language, structure, and object." State v. Heath , 2004 MT 126, ¶ 24, 321 Mont. 280, 90 P.3d 426 (quoting S.L.H. v. State Comp. Mut. Ins. Fund , 2000 MT 362, ¶ 16, 303 Mont. 364, 15 P.3d 948 ). "[S]tatutes must be read and considered in their entirety and the legislative intent may not be gained from the wording of any particular section or sentence, but only from a consideration of the whole." Heath , ¶ 27 (quoting Home Bldg. & Loan Ass'n of Helena v. Fulton , 141 Mont. 113, 115, 375 P.2d 312, 313 (1962) ).

¶24 Section 46-6-502, MCA, provides:

(1) A private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person's immediate arrest. The private person may use reasonable force to detain the arrested person.
(2) A private person making an arrest shall immediately notify the nearest available law enforcement agency or peace officer and give custody of the person arrested to the officer or agency.

¶25 This Court has long required that these provisions be read together. See Kroeger v. Passmore , 36 Mont. 504, 510-11, 93 P. 805, 807-08 (1908) (holding that the predecessor statutes to § 46-6-502(1) and (2), MCA, must be read together and describing that the predecessor to subsection (2) "may rightly be said to be a limitation upon the provision of" subsection (1)). The plain language of subsection (2) does not authorize a private citizen to interject himself in circumstances in which law enforcement officers already are involved. As we explained in State v. Hendrickson , 283 Mont. 105, 111, 939 P.2d 985, 988 (1997) (overruled in part on other grounds by State v. Updegraff , 2011 MT 321, 363 Mont. 123, 267 P.3d 28 ), "when a citizen ... makes a stop or arrest, his or her authority to proceed ceases once a peace officer with jurisdiction arrives at the scene." In this case, law enforcement was already "at the scene," because they were engaged in active pursuit of the suspect.

¶26 Section 46-6-402, MCA, further supports this conclusion. That section allows "[a] peace office making a lawful arrest" to "command the aid of persons 18 years of age or older." A person commanded to aid a peace officer under § 46-6-402, MCA, "has the same authority to arrest as that officer." Section 46-6-402(2)(a), MCA. Sections 46-6-402 and -502, MCA, together, allow citizens to make arrests when there is no peace officer present in limited circumstances, and to aid law enforcement in making an arrest when "command[ed]" to assist. No statute authorizes a private citizen to choose to involve himself in an active law enforcement action. Such an interpretation invites additional risk, both to law enforcement and-as the facts of this case demonstrate-to the public. In an active pursuit situation when there is no request from law enforcement for a private citizen to intervene, a peace officer already is "at the scene," and § 46-6-502, MCA, thus does not authorize a private citizen to take any actions to secure the arrest of the suspect. Because § 46-6-502, MCA, has no application to the facts of this case, Parsons was not entitled to a jury instruction or to judicial notice of the statute.

¶27 I would affirm the trial court.

Chief Justice Mike McGrath and District Court Judge Yvonne Laird join in the dissenting Opinion of Justice Baker.

MIKE McGRATH, C.J.

YVONNE LAIRD, J.

District Court Judge Yvonne Laird, sitting for Justice James Jeremiah Shea

      The City of Helena Municipal Court is a court of record as defined by § 3-6-101(1), MCA.

      As distinct from criminal negligence, simple or ordinary negligence is the failure to use reasonable care under the circumstances (i.e., the degree of care that a reasonable and prudent person would use under similar circumstances) to avoid injury to persons or property. See Fisher v. Swift Transp. Co., Inc. , 2008 MT 105, ¶ 16, 342 Mont. 335, 181 P.3d 601. See also §§ 1-1-204(4), 27-1-701, and 28-1-201, MCA (1895 Field Code formulations of common law negligence).

      See also 4 William Blackstone, Commentaries *376 (private arrest authority at common law).

      Nor has the State asserted that, but for § 46-5-502, MCA, law enforcement would have no authority to temporarily block a road to effect an arrest under these or similar circumstances.

      Other than cursory assertion of a non-specific risk to public safety, the State cites no record evidence on appeal indicating that Parsons's conduct caused any scene-specific particularized risk to third-parties in the vicinity. If such evidence in fact exists, it is merely another factual matter for jury consideration in the totality of the circumstances.

      While, as here, the authority and intent to make a citizen's arrest may be a relevant factual consideration, to the sufficiency of the State's proof of the essential elements of a charged offense in a particular case, we emphasize that nothing in our analysis or ultimate holding suggests that the authority to make a citizen's arrest provides or implies either a right to interfere or intervene in official law enforcement operations or immunity from criminal liability for independently defined criminal offenses such as, for example, obstructing a peace officer (§ 45-7-302, MCA ), obstructing justice (§ 45-7-303, MCA ), unlawful restraint (§ 45-5-301, MCA ), or kidnapping (§ 45-5-302, MCA ).

      In so holding, and upon due consideration of the Municipal Court record, we summarily reject the State's additional assertion that Parsons procedurally waived his right to appeal the matters addressed herein by failing to sufficiently preserve them on the record below.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF: B.A.F., Respondent and Appellant.
    DA 17-0567
    Supreme Court of Montana.
    Submitted on Briefs: January 16, 2019 Decided: March 12, 2019
    For Appellant: Chad Wright, Appellate Defender, Kristen L. Peterson, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Kent M. Sipe, Fergus County Attorney, Craig R. Buehler, Deputy County Attorney, Lewistown, Montana
   Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 B.A.F. appeals from a June 6, 2017 Tenth Judicial District Court order extending his commitment to the Montana Mental Health Nursing Care Center (Care Center). We affirm.

¶2 We restate the issue on appeal as follows:

Whether the requirements of § 53-21-119(1), MCA, applied when B.A.F. requested a hearing to stipulate to the extension of his involuntary commitment.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 B.A.F. is a sixty-six-year-old man with a long-standing history of mental illness. B.A.F. suffers from schizophrenia, paranoid type, and antisocial personality disorder. In 2015, B.A.F. was committed to the Montana State Hospital (MSH) for the thirteenth time. On April 27, 2016, after several months at MSH, B.A.F. stabilized and transitioned to a community setting in Helena, Montana. However, B.A.F.'s condition quickly deteriorated when he quit taking his medication and, on May 10, 2016, B.A.F. returned to MSH. On March 11, 2016, B.A.F.'s commitment to MSH was extended for a period of one year. In September 2016, B.A.F. was transferred to Care Center in Lewistown, Montana.

¶4 On February 21, 2017, Susan Stevens (Stevens), a mental health professional at Care Center, petitioned the Tenth Judicial District Court to extend B.A.F.'s commitment. The District Court appointed B.A.F. counsel and appointed Stephen Cummings as B.A.F.'s friend. The Court appointed Stevens to examine B.A.F. and submit a mental health assessment.

¶5 In March 2017, B.A.F. requested a hearing through counsel. In the request, his counsel asserted: "[B.A.F.] wishes to stipulate to the petition for commitment, but requests a hearing to put on the record that he is capable of making an intelligent and knowing decision." The State did not object and the District Court set a hearing to approve the stipulation for two and a half months later, ordering the commitment extended in the meantime. On June 6, 2017, the District Court heard testimony from B.A.F. and Mr. Cummings. Below is B.A.F.'s testimony in its entirety:

B.A.F.'s Counsel: And just for the record Your Honor I have met with [B.A.F.] a couple times and he has indicated that he is willing to stipulate and continue his care here as long as his social worker is working with him to explore other options .... [B.A.F.] will you state your name please for the record?
B.A.F.: [B.A.F.]
Counsel: And how are you doing right now?
B.A.F.: Fine. I can't think or comprehend very well though because of this certain (unintelligible) of the needle injections instead of the tablet form.
Counsel: And so you've ... we've discussed that you request that the staff work with you and maybe try to transition you back to taking tablets instead of the injections that you receive?
B.A.F.: Yes because I lost my memory pattern taking that the injection form and my thought processes, my memory pattern from day to day I've lost.
Counsel: And are the ... does the staff treat you well here?
B.A.F.: They talk behind my back here.
Counsel: Okay.
B.A.F.: Some of them do, not all of them.
Counsel: But for the most part they work well with you?
B.A.F.: Yeah.
Counsel: And so you've indicated that you would like to work with your social worker and that's Teresa, to explore other options is that correct?
B.A.F.: Yeah.
Counsel: And specifically where would you like to go right now?
B.A.F.: Missoula, Montana.
Counsel: Okay. And so, you're willing to continue your care here while Teresa works on filling out applications for you for facilities in Missoula?
B.A.F.: Yes, she's sure taking her time helping me out though.
Counsel: Okay. And at this point you're willing to continue taking your meds?
B.A.F.: Yes.
Counsel: And do you feel that those medications are helpful for your mental health and your physical health?
B.A.F.: I don't know. I ruined my central nervous system taking this medication. Sometimes my left and right arm shake extremely bad.
Counsel: And so you'd like to see if you could get some medical treatment for your shaking arms as well?
B.A.F.: I've talked to two doctors already. They don't know what's going on in my arms because they shake like this.
Counsel: Okay. Well is there anything else that you want the Court to know right now [B.A.F.]?
B.A.F.: I think they gave me some type of poisoning that ruined my central nervous system and my blood veins in my arms have all disappeared, shriveled up, shrunk up. Some type of poisoning they are giving me through medication.
Counsel: Okay.
B.A.F.: They want me to die off gradually I guess.
Counsel: But you're willing to continue your stay here and work with the staff correct?
B.A.F.: Yes.
Counsel: Okay. I have nothing further from [B.A.F.] Your Honor.

At the conclusion of the hearing the District Court entered an oral order recommitting B.A.F. to the Care Center for one year "unless released sooner," with authorization to administer medications involuntarily. The District Court issued a written order on June 29, 2017, further explaining the order based on the record, B.A.F.'s stipulation, and the evidence presented. B.A.F. now appeals.

STANDARD OF REVIEW

¶6 We review a district court's civil commitment order to determine whether the court's findings of fact are clearly erroneous and its conclusions of law are correct. In re T.S.D ., 2005 MT 35, ¶ 13, 326 Mont. 82, 107 P.3d 481. We view the evidence in the light most favorable to the prevailing party when determining whether substantial credible evidence supports the district court's findings.

In re C.V ., 2016 MT 307, ¶ 15, 385 Mont. 429, 384 P.3d 1048. Whether a district court's findings of fact satisfy statutory requirements is a question of law reviewed for correctness. In re D.L.B ., 2017 MT 106, ¶ 7, 387 Mont. 323, 394 P.3d 169.

DISCUSSION

¶7 Title 53, chapter 21, MCA, provides specific procedural and substantive requirements for involuntary civil commitment proceedings. The statutes provide that at least two weeks before an involuntary commitment expires the responsible health care professional may petition the court to extend commitment upon a specified showing of need for the extension. Section 53-21-128(1)(a), MCA. Absent the right to a jury trial, the extension procedure "must be the same in all respects as the procedure" required for an initial mental health commitment. Section 53-21-128(1)(c), MCA ; In re D.L.B ., ¶ 8.

¶8 If the district court finds that the individual continues to suffer from a mental disorder and requires commitment under any of the criteria of § 53-21-126(1), MCA, then the court shall order commitment in accordance with § 53-21-127, MCA. Section 53-21-128(1)(d), MCA ; In re D.L.B ., ¶ 9. To extend a prior involuntary mental health commitment the statutes require district courts to make specific findings of fact. In re D.L.B ., ¶ 10. Section 53-21-119(1), MCA, also provides, "A person may waive the person's rights, or if the person is not capable of making an intentional and knowing decision, these rights may be waived by the person's counsel and friend of respondent ...."

¶9 Here, it is clear that the parties and the Court were proceeding under a stipulation. This Court has previously held that a district court "may not accept a stipulation to an involuntary commitment without first making an affirmative determination on the record-based upon the evidence presented, including the representations of the respondent and/or his attorney and friend-that the person to be committed understands his procedural rights, and that he waives those rights intentionally and knowingly." In re A.M ., 2014 MT 221, ¶ 15, 376 Mont. 226, 332 P.3d 263. The sufficiency of the record depends on the facts and circumstances of each case. In re A.M ., ¶ 11. It is clear from the exchange with the Court that B.A.F. was aware of who and where he was, and the nature and purpose of the proceeding. His goal was to obtain a new placement in Missoula, and he understood he would remain at the Care Center until a new arrangement was made. B.A.F.'s attorney and his friend confirmed his intent.

¶10 On appeal, B.A.F. argues that the District Court's recommitment should be reversed because the record lacked evidence demonstrating B.A.F. understood his statutory rights, the nature of the proceeding, and intentionally and knowingly waived those rights.

¶11 The key consideration here is whether the requirements of § 53-21-119(1), MCA, apply in this case. If they do, this Court agrees with B.A.F. that the District Court did not obtain a valid waiver of rights. However, we conclude that the statute does not apply because the June 6, 2017 hearing was not a hearing on the State's petition for recommitment.

¶12 Section 53-21-128(1)(b), MCA, allows the patient, the patient's next of kin, the court-appointed friend, or the patient's counsel to request a hearing upon receipt of notice of a petition for extension of the commitment period. "[W]hen a hearing has been requested," the procedure on the petition for extension "must be the same in all respects as the procedure on the petition for the original 3-month commitment," with the exception of the right to a jury trial. Section 53-21-128(1)(c), MCA. "If a hearing is not requested," § 53-21-128(1)(b), MCA, authorizes the court to order the recommitment without a hearing. The statute plainly triggers the procedural requirements for commitment hearings-which include § 53-21-119 's requirements for obtaining a valid waiver of rights at such hearings-only when a patient seeks a hearing on the recommitment petition .

¶13 B.A.F. did not seek a hearing on Stevens' petition to extend his commitment. He sought a hearing only to put on the record that he was capable of making a knowing decision to stipulate to his commitment. The recommitment statute does not require such a hearing, nor did it require the District Court at that hearing to follow the procedure on the petition for the original three-month commitment.

CONCLUSION

¶14 The District Court's order extending B.A.F.'s commitment was not required to conform to the standard set forth in § 53-21-119(1), MCA, and B.A.F. made it clear to the Court that he understood his circumstances and intentionally agreed to the extension of care.

¶15 Affirmed.

We Concur:

JAMES JEREMIAH SHEA, J.

INGRID GUSTAFSON, J.

BETH BAKER, J.

LAURIE McKINNON, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.


text:
    Holly LABAIR and Robert Labair, individually and on behalf of Dawson R. Labair, deceased minor child, Plaintiffs, v. Steve CAREY, Esq., and Carey Law Firm, and Jane Does 1-4, Defendants.
    Tina Morin, Appellant, v. Holly Labair, Robert Labair, and Paul Warren, Appellees.
    DA 18-0334
    Supreme Court of Montana.
    Submitted on Briefs: January 3, 2019 Decided: March 19, 2019
    Affirmed.


text:
    STATE of Montana, Plaintiff and Appellee, v. Chalon Michael KINHOLT, Defendant, v. Asap Bail Bonds, Appellant.
    DA 17-0749
    Supreme Court of Montana.
    Submitted on Briefs: February 13, 2019 Decided: March 19, 2019
    Affirmed.


text:
    CITY OF GREAT FALLS, Plaintiff and Appellee, v. Joseph K. TAGGART, Defendant and Appellant.
    DA 17-0471
    Supreme Court of Montana.
    Submitted on Briefs: December 12, 2018 Decided: March 26, 2019
    Affirmed.


text:
    In the MATTER OF: C.J.G., A Youth in Need of Care.
    DA 18-0337
    Supreme Court of Montana.
    Submitted on Briefs: January 30, 2019 Decided: March 19, 2019
    Affirmed.


author: VANZI, Chief Judge.

text:
    STATE of New Mexico EX REL. Hector BALDERAS, Attorney General, Plaintiff-Appellee, v. BRISTOL-MYERS SQUIBB COMPANY, Sanofi-Aventis U.S. LLC, Sanofi US Services, Inc. f/k/a Sanofi-Aventis U.S. Inc., Sanofi-Synthelabo Inc., and Doe Defendants 1 to 100, Defendants-Appellants.
    NO. A-1-CA-36906
    Court of Appeals of New Mexico.
    Filing Date: October 24, 2018 Certiorari Granted, March 11, 2019, S-1-SC-37430
    Office of the Attorney General, Consumer & Environmental Protection, P. Cholla Khoury, Assistant Attorney General, Santa Fe, NM, Robles, Rael and Anaya, P.C., Marcus J. Rael, Jr., Albuquerque, NM, Baron & Budd, P.C., Daniel Alberstone, Jonas P. Mann, Peter KlausnerEncino, CA, Russell Budd, Dallas, TX, Jules Burton LeBlanc IV, Baton Rouge, LA for Appellee.
    Arnold & Porter Kaye Scholer LLP, Kirk Ogrosky, Murad Hussain, Washington, DC, Anand Agneshwar, New York, NY, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Earl E. DeBrine, Jr., Timothy C. Holm, Albuquerque, NM, for Appellants.
   VANZI, Chief Judge.

{1} In this interlocutory appeal, we consider whether a federal district court's dismissal of qui tam claims for failure to state a claim bars the State from pursuing different claims arising from similar facts, where the State had not intervened in the qui tam action. We conclude that it does not and, therefore, affirm the denial of Defendants' motion to dismiss.

BACKGROUND

Qui Tam Actions

{2} In order to situate the facts leading to this appeal, we begin with an overview of qui tam actions generally and the relevant statutes that establish and govern them. "In a 'qui tam action,' a private plaintiff, ... known as a 'relator,' brings suit on behalf of the government to recover a remedy for a harm done to the government." 36 Am. Jur. 2d Forfeitures and Penalties § 83 (2018) (footnotes omitted). "He or she pursues the government's claim against the defendant and asserts the injury in fact suffered by the government, which confers standing on the relator to bring the action as a representative of the [s]tate and as a partial assignee of the government's claim." Id. (footnotes omitted). A qui tam action arises only by statute, specifically authorizing a private party to sue on behalf of the government. Id. The federal False Claims Act (FCA) and state laws similar to it are typical qui tam statutes. See United Seniors Ass'n v. Philip Morris USA , 500 F.3d 19, 24 (1st Cir. 2007) (stating that the FCA is a "typical and commonly-invoked qui tam action").

The FCA and the New Mexico Medicaid False Claims Act

{3} "The [FCA] prohibits false or fraudulent claims for payment to the United States, and authorizes civil actions to remedy such fraud to be brought by the Attorney General or by private individuals in the government's name." 32 Am. Jur. 2d False Pretenses § 85 (2018) ; 31 U.S.C. §§ 3729 - 3733 (2012). Under the FCA, "[t]he Attorney General diligently must investigate a violation of the false claims statute[,]" and "[i]f the Attorney General finds that a person has violated or is violating such statute, the Attorney General may bring a civil action against the person." 32 Am. Jur. 2d False Pretenses § 85 ; 31 U.S.C. § 3730(a). In addition, the FCA permits relators to "file qui tam civil actions on behalf of the United States for the making of a false claim against government funds." 32 Am. Jur. 2d False Pretenses § 85 ; 31 U.S.C. § 3730(b).

{4} Similarly, the New Mexico Medicaid False Claims Act (MFCA), NMSA 1978, §§ 27-14-1 to -15 (2004), provides for liability where a person presents "a claim for payment under the medicaid program knowing that such claim is false" or otherwise defrauds the state through the state medicaid program. Section 27-14-4. Like the FCA, the MFCA requires the Human Services Department (HSD) to investigate suspected violations and permits HSD to bring a civil action. Section 27-14-7(A). In addition, the MFCA contains a qui tam provision that permits "[a] private civil action [to] be brought by an affected person for a violation of the [MFCA] on behalf of the person bringing suit and for the state." Section 27-14-7(B).

{5} Both the FCA and MFCA require a relator to provide a copy of the complaint and written disclosure of material evidence possessed by the relator to the government so that the government may determine whether there is substantial evidence that a violation has occurred. 31 U.S.C. § 3730(b)(2) ; § 27-14-7(C). The complaint is sealed for at least sixty days to allow the government to undertake such an investigation. 31 U.S.C. § 3730(b)(2) ; § 27-14-7(C). Upon completion of the investigation, the government may either "proceed with the action, in which case the action shall be conducted by the [g]overnment[,]" or decline to take over the action. 31 U.S.C. § 3730(b)(4) ; § 27-14-7(E). If the government declines to pursue the claims in the relator's complaint, "the person who initiated the action shall have the right to conduct the action." 31 U.S.C. § 3730(c)(3) ; § 27-14-8(D). Regardless of whether the government intervenes in the action, the relator may receive a portion of any ensuing recovery. 31 U.S.C. § 3730(d) ; § 27-14-9.

{6} The FCA and MFCA differ in that, under the MFCA, the relator may continue the action only "[i]f the department determined that there is substantial evidence that a violation of the [MFCA] has occurred" and that "[i]f the department determines that there is not substantial evidence that a violation has occurred, the complaint shall be dismissed." Section 27-14-7(C), (E)(2).

The First Suit: In re Plavix Marketing, Sales Practice & Products Liability Litigation

{7} The first suit at issue was initiated in March 2011 by relator Elisa Dickson (Relator), who filed a complaint alleging that Bristol-Myers Squibb Company, Sanofi-Aventis U.S., LLC; Sanofi-Aventis U.S., Inc.; and Sanofi-Synthelabo, Inc., (Defendants), manufacturers and marketers of the prescription drug Plavix, promoted Plavix in violation of the FCA and various states' similar fraud statutes, including New Mexico's MFCA. See In re Plavix Mktg., Sales Practice & Prods. Liab. Litig. (No. II) v. Bristol-Myers Squibb Co. , 332 F.Supp.3d 927, 932-37, 2017 WL 2780744, at *1-4 (D.N.J. 2017). Pursuant to the provisions of the MFCA, Relator served New Mexico with "a copy of the complaint and written disclosure of substantially all material evidence and information [Relator] possesses." Section 27-14-7(C). New Mexico declined to intervene in Relator's suit and, therefore, declined to take over litigation of the MFCA claim. In re Plavix Mktg. , 332 F.Supp.3d at 933-35, 2017 WL 2780744, at *2.

{8} Relator filed several amended complaints. Id. In August 2015, the federal district court dismissed the New Mexico MFCA claim, among others, for failure to state a claim for relief. Id. A year later, in August 2016, Relator filed a fourth amended complaint reasserting the MFCA claim, among others. Id. at 935-36, 2017 WL 2780744, at *3. On Defendants' motion, the federal district court dismissed Relator's fourth amended complaint in June 2017. Id. at 932-33, 935-36, 2017 WL 2780744, at *1, *3. Relator did not appeal the dismissal or request permission to amend the complaint again. This final dismissal is central to Defendants' claim preclusion argument.

The Second Suit: State of New Mexico ex rel. Hector Balderas, Attorney General v. Bristol-Myers Squibb, et al .

{9} Shortly after Relator filed the fourth amended complaint in In re Plavix Marketing , but before its final dismissal, the New Mexico Attorney General (the State) brought the present action in the First Judicial District Court. The complaint alleges that "Defendants' false, deceptive, and unfair labeling and promotion of their prescription antiplatelet drug Plavix" violated the New Mexico Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, as amended through 2009); the New Mexico Medicaid Fraud Act (MFA), NMSA 1978, §§ 30-44-1 to - 8 (1989, as amended through 2004); and the New Mexico Fraud Against Taxpayers Act (FATA), NMSA 1978, §§ 44-9-1 to -14 (2007, as amended through 2015), as well as common law and equitable causes of action. The complaint did not allege violations of the MFCA.

{10} Defendants moved to dismiss the State's complaint, arguing that the State had failed to state its claims. They also maintained that the suit should be dismissed without prejudice or stayed pending resolution of the In re Plavix Marketing action and that the State was inappropriately splitting its claims. Without ruling on the substantive arguments in the motion, the state district court stayed the action pending the outcome of Defendants' motion to dismiss in In re Plavix Marketing . Once the federal district court dismissed Relator's fourth amended complaint, the state district court lifted the stay and ordered supplemental briefing on the impact of the dismissal of Relator's claims on the State's complaint and Defendants' motion to dismiss. In supplemental briefing, Defendants argued that the doctrine of claim preclusion bars the State's complaint. They also argued that, even if claim preclusion did not bar the State's claims in their entirety, the claims based on the MFA and FATA should be dismissed for failure to state a claim for the same reasons relied on by the federal district court.

{11} The state district court granted in part and denied in part Defendants' motion to dismiss for failure to state a claim. It found that the State's MFA claim failed as a matter of law and that the economic loss doctrine barred the State's negligence claim. It therefore dismissed those claims with prejudice. It found that the State had inadequately pleaded the UPA and equitable tolling claims but dismissed those claims without prejudice and ordered the State to file an amended complaint if it chose to rectify the deficiencies in the first complaint. The court found the remaining claims adequately pleaded. The State then filed its first amended complaint, which includes claims for violations of the UPA and FATA, as well as common law claims for fraud and unjust enrichment.

{12} In a separate order, the state district court denied Defendants' motion to dismiss the State's complaint on claim preclusion grounds. Although it stated that Relator's claims had been dismissed "with prejudice," it found that "[claim preclusion] does not apply here because the causes of action are not the same in the two suits" and that "[R]elator in [ In re Plavix Marketing ] did not assert any of the claims the State asserts in this case, but rather only a single New Mexico [MFCA] claim." It also stated that "while [R]elator ... stood in the shoes of the State of New Mexico for purposes of the New Mexico [MFCA] claim, [R]elator did not stand in the State's shoes for purposes of the claims asserted by the State here." Finally, the state district court concluded that "in a case such as this, where [R]elator's claims were dismissed based on a failure to comply with the heightened pleading requirements of [Federal Rule of Civil Procedure] 9(b), and not based on the merits of the claim, it would be inappropriate to bar the State's claims."

{13} However, the state district court also found that "[r]egarding the application of [claim preclusion] only," its order "(1) does not practically dispose of the merits of the action, (2) involves a controlling question of law as to which there is substantial ground for difference of opinion, and (3) an immediate appeal from this order or decision may materially advance the ultimate termination of the litigation." See NMSA 1978, § 39-3-4(A), (B) (1999) (providing for interlocutory appeal of district court orders pursuant to this Court's appellate jurisdiction). It therefore certified for interlocutory appeal the portion of the order pertaining to application of claim preclusion. This Court granted Defendants' application for interlocutory appeal. See Rule 12-203 NMRA (governing interlocutory appeals).

DISCUSSION

{14} The issue before the Court is whether the federal court's dismissal of Relator's MFCA claim precludes the State's claims for violations of the UPA and FATA, as well as common law fraud and unjust enrichment. We review such questions of law de novo. Bank of N.Y. v. Romero , 2016-NMCA-091, ¶ 15, 382 P.3d 991. In addition, "[b]ecause the prior action was in federal court, federal law determines the preclusive effect of a federal judgment." Moffat v. Branch , 2005-NMCA-103, ¶ 11, 138 N.M. 224, 118 P.3d 732 ; see Restatement (Second) of Judgments § 87 (1982) ("Federal law determines the effects under the rules of [claim preclusion] of a judgment of a federal court."). However, this Court may rely on both federal and New Mexico law on claim preclusion because "[f]ederal law and New Mexico law are not divergent on claim preclusion doctrine, and both find the Restatement (Second) of Judgments ... persuasive." Moffat , 2005-NMCA-103, ¶ 11, 138 N.M. 224, 118 P.3d 732.

General Claim Preclusion Law

{15} "[Claim preclusion] prevents a party or its privies from repeatedly suing another party for the same cause of action when the first suit involving the parties resulted in a final judgment on the merits." Rosette, Inc. v. U.S. Dep't of the Interior , 2007-NMCA-136, ¶ 33, 142 N.M. 717, 169 P.3d 704. Generally, the doctrine applies where "three elements are met: (1) a final judgment on the merits in an earlier action, (2) identity of parties or privies in the two suits, and (3) identity of the cause of action in both suits." Id. When these elements are satisfied, the defense of claim preclusion bars relitigation not only of claims actually brought by the plaintiff and its privies, but also claims that could have been brought in the first action. Kirby v. Guardian Life Ins. Co. of Am. , 2010-NMSC-014, ¶ 61, 148 N.M. 106, 231 P.3d 87.

{16} For claim preclusion to apply, the first suit must have ended in a "judgment on the merits." Rosette, Inc. , 2007-NMCA-136, ¶ 33, 142 N.M. 717, 169 P.3d 704. Generally, a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a "judgment on the merits" for purposes of claim preclusion. Federated Dep'tStores, Inc. v. Moitie , 452 U.S. 394, 399 n.3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). Although this general rule is often stated broadly, it is not without nuance. Because "[a] motion to dismiss for failure to state a claim under Rule 1-012(B)(6) ... tests the legal sufficiency of the complaint, not the facts that support it[,]" Wallis v. Smith , 2001-NMCA-017, ¶ 6, 130 N.M. 214, 22 P.3d 682, the designation of such a dismissal as "on the merits" is something of a misnomer. In Kirby , the New Mexico Supreme Court explained that "[a] dismissal with prejudice is an adjudication on the merits only to the extent that when a claim has been dismissed with prejudice, the [final judgment on the merits] element of [claim preclusion] ... will be presumed so as to bar a subsequent suit." 2010-NMSC-014, ¶ 66, 148 N.M. 106, 231 P.3d 87 (emphasis added). This is so because "[i]f this were otherwise, plaintiffs could simply ignore dismissals and file the same claim as many times as they wished, so long as the claim never progressed to a determination of the substantive issues." Id. Thus, the intent behind considering a Rule 12(b)(6) dismissal as "on the merits" is practical: to limit repetitive filings. See Kirby , 2010-NMSC-014, ¶ 66, 148 N.M. 106, 231 P.3d 87. Such a dismissal obviously does not involve "a judicial determination of" the actual merits. See id. ¶ 67. Conversely, "[t]he words 'without prejudice' when used in an order or decree generally indicate that there has been no resolution of the controversy on its merits and leave the issues in litigation open to another suit as if no action had ever been brought." Bralley v. City of Albuquerque , 1985-NMCA-043, ¶ 18, 102 N.M. 715, 699 P.2d 646.

Defendants' Arguments

{17} Defendants contend that the elements of claim preclusion are met here. Defendants argue that the In re Plavix Marketing dismissal was "on the merits" because Relator either failed to plead the requisite materiality under Universal Health Services, Inc. v. United States ex rel. Escobar , --- U.S. ----, 136 S.Ct. 1989, 2001-03, 195 L.Ed.2d 348 (2016), or failed to allege conduct recognized as violative of the FCA. See United States ex rel. Petratos v. Genentech Inc. , 855 F.3d 481, 487 (3d Cir. 2017) ("A [FCA] violation includes four elements: falsity, causation, knowledge, and materiality."); In re Plavix Mktg. , 332 F.Supp.3d at 941, 2017 WL 2780744, *8 (same). They also claim that the State was in privity with Relator because Relator represented the State's interests in the In re Plavix Marketing action. Finally, they argue that the State's claims "arise out of a common nucleus of operative facts" related to Defendants' marketing practices and, therefore, constitute the "same cause of action" as in In re Plavix Marketing . In sum, Defendants maintain that, as a privy to Relator, the State was required to bring all of its claims in In re Plavix Marketing , and having failed to do so, the State must be barred from bringing them in a different suit.

Claim Preclusion in the Context of Qui Tam Actions

{18} We first observe that, as a general proposition, "[i]f [the relator] had litigated a qui tam action to the gills and lost, neither another relator nor the [government] could start afresh." United States ex rel. Lusby v. Rolls-Royce Corp. , 570 F.3d 849, 853 (7th Cir. 2009). This is true because the relator sues on behalf of the government to vindicate the government's interests, and, although the government is not a named party to the relator's suit, it is a real party in interest. United States ex rel. Eisenstein v. City of New York , 556 U.S. 928, 934, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009) (stating that the government, although a real party in interest, is not a "party" to a qui tam action).

{19} However, courts have also recognized that, under certain circumstances, the government's role in vindicating public interests militates against preclusion of its claims. Cf. Nathan D. Sturycz, The King and I?: An Examination of the Interest Qui Tam Relators Represent and the Implications for Future False Claims Act Litigation , 28 St. Louis U. Pub. L. Rev. 459, 462-63 (2009) (noting that even though "[i]n the non-FCA context, the concepts of preclusion would normally prevent duplicative litigation[, a]pplication of preclusion [in FCA cases] is muddled ... by the distinction between the interests represented in a prior private cause of action and those represented in FCA litigation"). Thus, courts have repeatedly found that suits by or on behalf of the government should not be precluded by certain actions of a private party, even when that party acts as a qui tam relator. This is especially true when the first suit is dismissed for reasons unrelated to the merits of the claims.

{20} For example, federal courts have relied on the fact that a Rule 12(b)(6) dismissal is based only on the relator's complaint, not the factual bases underlying the allegations, to hold that such a dismissal does not preclude the government's claims when the government has not intervened. See, e.g. , United States ex rel. Williams v. Bell Helicopter Textron, Inc. , 417 F.3d 450, 455-56 (5th Cir. 2005).

{21} In Williams , the district court dismissed the relator's FCA claims because the relator failed to plead them with sufficient particularity under Rules 12(b)(6) and (9)(b). Williams , 417 F.3d at 455. The district court dismissed the complaint with prejudice as to both the relator and the government, stating that it was "dismissing the claims against the government with prejudice because it believed 'the United States has had ample opportunity to participate in the prosecution of those claims if [it] had any notion that any of them has the slightest merit,' " suggesting that the government's failure to intervene indicated that it found the claims meritless. Id.

{22} The United States Court of Appeals for the Fifth Circuit reversed and modified the dismissal to be without prejudice as to the government. Id. at 456. First, the court dismissed as "unreasonable" any speculation about the government's reasons for not intervening and the district court's inference that the government would have intervened if it found the relator's FCA claims "meritorious." Id. at 455. It observed that the FCA requires the Attorney General to conduct an investigation of the relator's allegations, but the FCA "does not require the government to proceed if its investigation yields a meritorious claim." Id. "Indeed, absent any obligation to the contrary, it may opt out for any number of reasons. For example, a decision not to intervene may 'not necessarily be an admission by the [government] that it has suffered no injury in fact, but rather the result of a cost-benefit analysis.' " Id. (alterations omitted) (quoting United States ex rel. Berge v. Bd. of Trs. of the Univ. of Ala. , 104 F.3d 1453, 1458 (4th Cir. 1997) ). The court concluded, "[G]iven the Rule 9(b) deficiencies, the government may have determined that the costs associated with proceeding based on a poorly drafted complaint outweighed any anticipated benefits." Williams , 417 F.3d at 455.

{23} The Williams court then noted that a dismissal with prejudice as to the government would give private parties "perverse incentives" to file poorly drafted or improperly pleaded qui tam actions. Id. "By essentially requiring the government to intervene in order to avoid forfeiting any future claims against the defendant, private parties would have the added incentive to file FCA suits lacking in the required particularity, knowing full well that the government would be obligated to intervene and ultimately 'fill in the blanks' of the deficient complaint." Id. It went on to state that the district court's approach would allow "a relator, in the most egregious of circumstances, to make sweeping allegations that, while true, he is unable to effectively litigate, but which nonetheless bind the government, via [claim preclusion], and prevent it from suing over those concerns at a later date when more information is available." Id. (internal quotation marks and citation omitted). It therefore concluded that the district court had abused its discretion by dismissing the complaint with prejudice as to the government. Id. at 456.

{24} Without deciding the preclusive effect of a Rule 12(b)(6) dismissal on future related actions, but relying on Williams , the Eleventh Circuit also modified a district court's dismissal for failure to state a claim to be without prejudice to the government. Urquilla-Diaz v. Kaplan Univ. , 780 F.3d 1039, 1057 (11th Cir. 2015). A number of federal district courts have also followed Williams and held that a dismissal of a relator's complaint for insufficient pleading should be without prejudice to the government. In each of these cases, the government had declined to intervene in the relators' actions. See, e.g. , United States v. KForce Gov't Sols., Inc. , No. 8:13-cv-1517-T-36TBM, 2014 WL 5823460, at *6 n.2, *9 (M.D. Fla. Nov. 10, 2014) (dismissing an FCA complaint for failure to satisfy the Rule 9 pleading requirements and stating that dismissal is without prejudice to the government); United States ex rel. Boros v. Health Mgmt. Assocs. (Health Mgmt. I ), No. 4:10-cv-10013-KMM, 2013 WL 12077816, at *1-2 (S.D. Fla. July 26, 2013) (clarifying that dismissal was without prejudice to the government after the relator's FCA complaint was dismissed for failure to state a claim); United States ex rel. Banigan v. Organon USA, Inc. , Civil Action H-08-3314, 2013 WL 12142351, at *34 (S.D. Tex. Feb. 1, 2013) (agreeing that "the dismissal [for inadequate pleadings] should be without prejudice to the [government] because it has no involvement in preparing the complaint" and stating that "if the [c]ourt dismisses [the r]elators' complaint on insufficient pleading grounds, the dismissal would not preclude the government from bringing or continuing an action involving the same or similar claims"); United States ex rel. Rostholder v. Omnicare, Inc. , No. CCB-07-1283, 2012 WL 3399789, at *15 (D. Md. Aug. 14, 2012) (stating that "[t]he government's decision not to intervene ... does not suggest that the government necessarily believed that no FCA case was viable ... [and a]ccordingly, it would be inappropriate to dismiss with prejudice as to the [government] or as to the states or localities on whose behalf relator brought this claim" (emphasis added) ), aff'd , 745 F.3d 694 (4th Cir. 2014). But see Lusby , 570 F.3d at 853 (stating that the district court erred in ordering a qui tam complaint dismissed with prejudice to the plaintiff and without prejudice to the government, but holding that judgment in a private suit did not bar a later qui tam action).

{25} Similarly, courts have dismissed a complaint with prejudice to the relator, but without prejudice to the government, where the relator failed to prosecute or acted improperly in litigation. See, e.g. , United States ex. rel. Prince v. Va. Res.Auth. , 2014 WL 3405657, at *3 (W.D. Va. July 10, 2014) (failure to prosecute), aff'd , 593 Fed. App'x 230 (4th Cir. 2015) ; United States ex rel. King v. DSE, Inc. , No. 8:08-CV-2416-T-23EAJ, 2013 WL 610531, at *11 (M.D. Fla. Jan. 17, 2013) (litigation misconduct); cf . United States ex rel. Vaughn v. United Biologics, L.L.C. , 907 F.3d. 187, 193, 2018 WL 5000074, at *5 (5th Cir. 2018) (stating that "when the case's outcome is decided by the relator's voluntary decision to quit, courts tend not to bind the [g]overnment to that decision automatically" and collecting cases).

{26} Although distinguishable on its facts, State ex rel. Peterson v. Aramark Correctional Services, LLC , 2014-NMCA-036, 321 P.3d 128, echoes the reasoning in Williams . In Peterson , this Court considered whether a summary judgment in the plaintiff's personal injury suit barred the same plaintiff's later qui tam action against the same defendant. 2014-NMCA-036, ¶¶ 1-2, 321 P.3d 128. Holding that it did not, this Court noted that, as a qui tam relator, the plaintiff represented the state, rather than himself, and therefore, his capacity in the two suits was not the same and the "same parties or their privies" element of claim preclusion was not met. Id. ¶¶ 24, 33. In its analysis, this Court, like Williams , recognized that claim preclusion in the qui tam context could operate adverse to the public interest. Peterson , 2014-NMCA-036, ¶ 30, 321 P.3d 128. It stated that " 'it would be inappropriate to snuff out the government's interest [in the qui tam action] just because a potential relator thoughtlessly omitted a qui tam claim from a[n earlier] personal suit.' " Id. (alterations omitted) (quoting Lusby , 570 F.3d at 852 ). "[W]ere a personal lawsuit held to preclude a qui tam suit on claim preclusion grounds, the government would be incapable of vindicating its interest by bringing a new qui tam suit, either on its own or through another relator" because the government would be bound by the judgment in the personal lawsuit. Id.

{27} Defendants argue that the Williams holding is inapposite for three reasons. Defendants first argue that the United States Supreme Court's decision in Eisenstein supersedes Williams . Defendants rely on the statement in Eisenstein that "the [government] is bound by the judgment in all FCA actions regardless of its participation in the case." 556 U.S. at 936, 129 S.Ct. 2230. But the Eisenstein Court was not considering the issue here; rather, the issue there was whether the government was a "party" to a privately initiated FCA action such that the private party could benefit from the longer period in which to appeal provided to the government under Federal Rule of Appellate Procedure 4(a)(1)(B). Eisenstein , 556 U.S. at 931, 129 S.Ct. 2230. "The general rule is that cases are not authority for propositions not considered." Sangre de Cristo Dev. Corp. v. City of Santa Fe , 1972-NMSC-076, ¶ 23, 84 N.M. 343, 503 P.2d 323.

{28} In addition, the statement relied on by Defendants was a statement of the appellant's argument, not a statement of law by the Court. See Eisenstein , 556 U.S. at 936, 129 S.Ct. 2230 ("[P ]etitioner relies on the fact that the [government] is bound by the judgment in all FCA actions regardless of its participation in the case." (emphasis added) ). "[I]n light of Eisenstein 's narrow holding-that the [g]overnment was not a 'party' for the purposes of [ Rule] 4(a)(1)(B) -it would be inappropriate to interpret this passing observation so broadly." Vaughn , 907 F.3d at 195, 2018 WL 5000074, at *6 (rejecting an argument that Eisenstein abrogated Williams ); accord USA ex rel. Mastej v. Health Mgmt. Assocs. (Health Mgmt. II ), No. 2:11-cv-89-FtM-29DNF, 2014 WL 12616929, at *2 (M.D. Fla. June 10, 2014) ; Health Mgmt. I , 2013 WL 12077816, at *1. Finally, as shown above, a number of federal courts have relied on Williams after Eisenstein was decided in 2009. But see Lusby , 570 F.3d at 853 (stating that Eisenstein foreclosed dismissal without prejudice as to the government).

{29} Defendants next argue that the policy considerations in Williams are inapposite because the MFCA "required New Mexico to determine whether there was substantial evidence of a violation ... and to dismiss the claim if none existed." They argue that this "obligation means that no qui tam complaint brought under the [MFCA] should ever receive the State's approval to proceed if, like the [ Williams ] complaint, it is so facially deficient that it lacks substantial evidentiary support." It is true that Section 27-14-7 requires that, when a claim is supported by substantial evidence, the state must either pursue the claim or permit the relator to pursue it. See § 27-14-7(E) (providing that if there is substantial evidence, the state "shall :

(1) proceed with the action, in which case the action shall be conducted by the department; or (2) notify the court and the person who brought the action that it declines to take over the action" (emphasis added) ). However, Defendants' argument conflates a determination of evidence supporting a claim with a determination of the adequacy of the relator's complaint. The state is required to determine only whether "there is substantial evidence that a violation has occurred," not whether the relator's complaint adequately alleges a violation. Section 27-14-7(C); see Wallis , 2001-NMCA-017, ¶ 6, 130 N.M. 214, 22 P.3d 682 (stating that "[a] motion to dismiss for failure to state a claim under Rule 1-012(B)(6)... tests the legal sufficiency of the complaint, not the facts that support it"). To hold that the state is required to involve itself in the articulation of the relator's claims in the complaint is tantamount to requiring the state to intervene in the action. Such a result is contrary to the clear intent of the MFCA to deputize private parties to seek recovery on the state's behalf. See Berge , 104 F.3d at 1458 (stating that "the plain language of the [FCA] clearly anticipates that even after the [government] has 'diligently' investigated a violation ..., the [g]overnment will not necessarily pursue all meritorious claims; otherwise there is little purpose to the qui tam provision permitting private attorneys general"); see Vaughn , 2018 WL 5000074, at *5 (citing Williams for the proposition that "the non-intervening [g]overnment should not be bound by the fate of an incompetent relator, lest it be forced to intervene in every action"); see also § 27-14-8(D) ("If the state elects not to proceed with the action, the person bringing the action shall have the right to conduct the action."); cf. Williams , 417 F.3d at 455 (stating that the government might decline to intervene, even if there is evidence of a violation, because "the costs associated with proceeding based on a poorly drafted complaint [by the relator] outweighed any anticipated benefits").

{30} Finally, Defendants contend that Williams is factually distinguishable from the circumstances here. They argue that in Williams , the qui tam complaint was dismissed because it was "so deficient [under Rule 9(b) ] that the court never reached the merits of the claim[,]" Williams , 417 F.3d at 456, whereas here Relator's claim was instead dismissed based on the "heightened pleading standard for materiality under the FCA," rather than the pleading requirements for fraud under Rule 9(b). In re Plavix Mktg. , 332 F.Supp.3d at 944, 2017 WL 2780744, *10. They point out that the federal district court found that Relator had "pleaded herself out of court" by alleging facts that negated an essential element of an FCA claim. Thus, because Relator "could not plead the required element of 'materiality' as a matter of law[,]" the dismissal was on the merits.

{31} We do not read Williams as narrowly as Defendants. The Williams holding was not limited to the Rule 9(b) pleading standard. Instead, the core of the Williams holding is the failure to adequately plead an FCA claim under Rule 12(b)(6), regardless of the standard applied. See Williams , 417 F.3d at 453 (stating that the defendant "moved to dismiss under Rule 12(b)(6) for failure to state a claim because the complaint did not comply with the requirements of Rule 9(b)"). The reasoning for the holding was that the government should not be bound by the relator's weaknesses in pleading what might be a valid claim, whatever those weaknesses are. In other words, "[w]hy would Congress want [a poorly plead but meritorious] earlier suit to bar a later potentially successful suit that might result in a large recovery for the [g]overnment?" Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter , --- U.S. ----, 135 S.Ct. 1970, 1979, 191 L.Ed.2d 899 (2015) ; see id. (rejecting an argument that "a first-filed suit would bar all subsequent related suits even if that earlier suit was dismissed for a reason having nothing to do with the merits"). Hence, even if the In re Plavix Marketing dismissal was not based on Rule 9(b), an issue we need not decide, Williams would still apply here. See KForce Gov't Sols. , 2014 WL 5823460, at *9 (dismissing the relator's complaint where "the facts ... plead ... preclude a claim under the FCA" with prejudice, but without prejudice as to the government).

Dismissal of Relator's Qui Tam Action Does Not Bar the State's Claims

{32} The dismissal order in In re Plavix Marketing does not specify whether it is with or without prejudice to Relator or the government. In re Plavix Mktg. , 332 F.Supp.3d at 932-33, 960, 2017 WL 2780744, at *1, *23. Nevertheless, because the order did not provide for a fifth amendment and disposed of all of Relator's claims, we construe it as an adjudication on the merits as to Relator, consistent with the general rule that a dismissal under Rule 12(b)(6) is an adjudication on the merits for claim preclusion purposes. Moitie , 452 U.S. at 399 n.3, 101 S.Ct. 2424 (stating that "[t]he dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits" (internal quotation marks and citation omitted) ); see Kirby , 2010-NMSC-014, ¶ 66, 148 N.M. 106, 231 P.3d 87 (stating that this approach prevents repetitive suits); Bralley , 1985-NMCA-043, ¶ 14, 102 N.M. 715, 699 P.2d 646 ("An order dismissing a party's entire complaint without authorizing or specifying a definite time for leave to file an amended complaint, is a final order for purposes of appeal.").

{33} However, for the reasons stated in Williams and its progeny, we construe the order as without prejudice to the government. Cf. Bralley , 1985-NMCA-043, ¶ 18, 102 N.M. 715, 699 P.2d 646 (stating that "[t]he words 'without prejudice' when used in an order or decree generally indicate that there has been no resolution of the controversy on its merits and leave the issues in litigation open to another suit as if no action had ever been brought"). Thus, as to the State, the federal district court's dismissal of Relator's fourth amended complaint is not a "final judgment on the merits" for claim preclusion purposes. "Because the claim preclusion doctrine does not bar a subsequent lawsuit unless all [of the claim preclusion] elements are met, we do not consider the parties' remaining claim preclusion arguments." Peterson , 2014-NMCA-036, ¶ 33, 321 P.3d 128.

CONCLUSION

{34} Consistent with federal FCA and claim preclusion law, we construe the In re Plavix Marketing dismissal as without prejudice to the State's claims, and, therefore, hold that the dismissal does not bar the State's present claims under the UPA and FATA, as well as common law claims for fraud and unjust enrichment. Accordingly, we affirm the state district court's denial of Defendants' motion to dismiss.

{35} IT IS SO ORDERED.

WE CONCUR:

J. MILES HANISEE, Judge

JULIE J. VARGAS, Judge

      Relator filed the initial complaint in Illinois, but the suit was transferred to the United States District Court for the District of New Jersey to be part of the Plavix Multi-District Litigation. Id. at *2, 2017 WL 2780744.

      "Because the language of Rule 1-012 [NMRA ] closely parallels that of its federal counterpart, Rule 12 of the Federal Rules of Civil Procedure, we find federal authority interpreting Rule 12... instructive." Doe v. Roman Catholic Diocese of Boise, Inc. , 1996-NMCA-057, ¶ 5, 121 N.M. 738, 918 P.2d 17. We also cite to Rule 1-012(B)(6) NMRA and Federal Rule of Civil Procedure 12(b)(6) interchangeably.

      Notably, although it was unnecessary for the Peterson Court to discuss this fact under the circumstances of that case, "the district court granted [the defendant's] motion for summary judgment, and dismissed, with prejudice, all claims brought on behalf of [the qui tam p]laintiff, stating, however, that its order did not prejudice the [s]tate's ability to bring a related action based on the same facts." Id. ¶ 20.