author: WILKINS, Justice:

text:
    2003 UT 2
    STATE of Utah, Plaintiff and Respondent, v. Charles K. LEATHERBURY, Defendant and Petitioner.
    No. 20010424.
    Supreme Court of Utah.
    Feb. 11, 2003.

      Mark Shurtleff, Utah Att’y Gen., Kris C. Leonard, Asst. Att’y Gen., for plaintiff.
    Joan C. Watt, Daniel M. Torrence, Salt Lake, for defendant.
   WILKINS, Justice:

¶ 1 We granted Charles Leatherbury’s petition for certiorari to review the court of appeals’ decision in State v. Leatherbury, 2001 UT App 113U, 2001 WL 333079. The court of appeals held that it had appellate jurisdiction of the case. It also reversed the trial court’s order of dismissal, which was premised on section 77-29-1 of the Utah Code. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Leatherbury was charged by information with failing to respond to a police officer’s signal to stop, possession of drug paraphernalia, reckless driving, and other charges related to his alleged participation in a police chase on January 14, 1999. The information was authorized for presentment and filing by the Salt Lake County District Attorney’s Office on February 2,1999, sworn to a magistrate on February 12, 1999, and filed with the clerk of the Third District Court on March 26,1999.

¶ 3 On January 29, 1999, Leatherbury, then an inmate at the- Utah State Prison, signed a form entitled “Notice and Request for Disposition of Pending Charge(s)” requesting final disposition of any charges pending in the Third District Court related to his “fleeing a police officer.” The request was signed as received by the appropriate prison official on February 8, 1999 and forwarded to the Salt Lake County District Attorney’s Office. This form purportedly satisfies the requirements of section 77-29-1 of the Utah Code and invokes Leatherbury’s right to be tried within 120 days of the request.

¶ 4 On June 10, 1999, at the final pretrial conference, Leatherbury filed a motion to dismiss arguing that the 120 day period for bringing him to trial had expired on June 8, 1999 and that the charges must be dismissed. The State argued in response that Leather-bury’s request for disposition was premature and of no effect because no information was pending against Leatherbury at the time of its preparation. At a hearing held on June 21, 1999, the parties argued the motion and the trial court indicated its intention to dismiss the ease. However, the court ordered Leatherbury’s attorney to prepare findings of fact and conclusions of law (“findings”). The court’s intention to dismiss the case was memorialized in a signed minute entry.

¶ 5 On July 26, 1999, the trial court signed the findings, which had been prepared by Leatherbury’s attorney. Nearly two months later, on September 17, 1999, the trial court signed an order of dismissal prepared by the State. The State filed its notice of appeal on September 23,1999.

¶ 6 Before the court of appeals, Leather-bury argued that the court had no jurisdiction to hear the case because the notice of appeal was untimely filed. The State argued that the order of dismissal should be reversed because no information was pending, within the meaning of section 77-29-1, at the time Leatherbury made his request for disposition. In an unpublished memorandum decision, the court of appeals rejected Leath-erbury’s jurisdictional argument. It held that the State’s notice of appeal was timely filed because the order of dismissal, not the signed minute entry of June 21, 1999, was the final order. State v. Leatherbury, 2001 UT App 113U, 2001 WL 333079. The court of appeals reversed the case on the merits holding that at the time of Leatherbury’s request for disposition there was no pending information and his request had no legal effect. Id.

ANALYSIS

I. STANDARD OF REVIEW

¶ 7 On certiorari review “we review the court of appeals’ decision, not the opinion of the [trial] court.” State v. Weeks, 2002 UT 98, ¶ 10, 458 Utah Adv. Rep. 3, 61 P.3d 1000. That decision is then reviewed for correctness. Id.

II. JURISDICTION OF THE COURT OF APPEALS

¶8 Leatherbury argues that the State’s notice of appeal failed to vest the court of appeals with jurisdiction to hear the ease because it came more than thirty days after entry of the final order. If the final order in the case was, as Leatherbury contends, either the signed minute entry or the findings, he is correct and we must vacate the court of appeals’ decision. See Utah R. App. P. 4; State v. Bowers, 2002 UT 100, ¶ 5, 57 P.3d 1065 (noting 30 day filing requirement in rule is a jurisdictional requirement). Thus, our resolution of this point turns on whether either document was a final appeal-able order, or whether, as the State argues, the final order did not come until the order of dismissal was signed and entered.

¶ 9 Although Leatherbury is correct that a signed minute entry may constitute a final appealable order, he is incorrect that the minute entry in this case was such an order. A signed minute entry will not be considered a final order where its language indicates that it is not intended as final. Swenson Assocs. Architects, P.C. v. State ex rel. Div. of Facilities Constr., 889 P.2d 415, 417 (Utah 1994). Thus, where further action is contemplated by the express language of the order, it cannot be a final determination susceptible of enforcement. The court of appeals correctly concluded that the signed minute entry’s requirement that Leather-bury’s counsel “prepare Findings of Fact and Conclusions of Law” indicated that the trial court did not intend the minute entry as a final order. Leatherbury, 2001 UT App 113U, 2001 WL 333079. Further, Leather-bury’s argument that the findings constituted a final order is also incorrect. The findings merely explain the trial court’s rationale for and intent to dismiss the case, and contained no order. Thus, the final order in this case was the order of September 17, 1999, which incorporated the previously entered findings of fact and conclusions of law and specifically ordered dismissal of the charges against the defendant. As a result, the State’s notice of appeal was timely filed, and the court of appeals had jurisdiction to hear the ease.

III. AN INFORMATION WAS NOT PENDING

¶ 10 Leatherbury would have us reverse the court of appeals’ determination that there was no information pending against him at the time of his request for disposition under section 77-29-1 of the Utah Code. He argues that an information is pending once it is signed by a prosecuting attorney, even before filing with the court. We disagree.

¶ 11 Section 77-29-1 of the Utah Code provides:

(1) Whenever a prisoner is serving a term of imprisonment in the state prison ... and there is 'pending against the prisoner in this state any untried ... information, and the prisoner shall deliver to the warden ... a written demand specifying the nature of the charge and the court wherein it is pending and requesting disposition of the pending charge, he shall be entitled to have the charge brought to trial within 120 days of the date of delivery of written notice.

Utah Code Ann. § 77-29-1(1) (1999) (emphasis added). Section 77-29-1 also provides that failure to bring the matter to trial within the 120 day period, unless justified by good cause, shall result in dismissal. Id. at § 77-29-1(4). Under subsection (1) there are essentially two prerequisites to the filing of a request for disposition. First, a prisoner must be serving a term of imprisonment in a state penal institution, and second, there must be an untried indictment or information pending against that prisoner. Only the second requirement is at issue here.

¶ 12 “Information” is a statutorily defined term. It “means an accusation, in writing, charging a person with a public offense which is presented, signed, and filed in the office of the clerk [of the court] where the prosecution is commenced.” Utah Code Ann. § 77-1-3(3) (1999) (emphasis added). Pursuant to the statute, a written, signed accusation does not become an information until filed with the clerk of the court. Assuming but not deciding that Leatherbury’s request for disposition of the charges against him was made on February 8, 1999, the request was premature because there was no pending information until the clerk of the court received the signed document and filed it on March 26, 1999. Because there was no pending information, the request for disposition had no legal effect. We affirm the court of appeals’ decision.

CONCLUSION

¶ 13 Because the court of appeals correctly concluded that it had jurisdiction to consider the State’s appeal and it correctly held that filing was a precondition to a pending information under section 77-29-1, we affirm the court of appeals’ decision in State v. Leather-bury, 2001 UT App 113U, 2001 WL 333079 and remand for further proceedings.

¶ 14 Chief Justice DURHAM, Justice RUSSON, Judge BALDWIN, and Judge LOW concur in Justice WILKINS’ opinion.

¶ 16 Having disqualified himself, Associate Chief Justice DURRANT does not participate herein, and Justice HOWE did not participate herein; District Judge BALDWIN and District Judge LOW sat.

      . In his brief Leatherbury places the date of his request for disposition as February 8, 1999, when the designated agent at the prison signed her name to the request. This date is the latest of the dates on the request itself; Leatherbury signed it on January 29, 1999. For purposes of this opinion we apply the date offered by Leath-erbury in his brief.


source: Caselaw Access Project

license: Public Domain

text:
    2003 UT 3
    Rosalind CAZARES, as personal representative of the Estate of Rosemary Cosby, Plaintiff and Appellant, v. Robert C. COSBY, Annie L. Johnson, Chase Manhattan Mortgage Company, Headlands Mortgage Company, Headlands Home Equity Loan Trust, United Security Financial and John Does 1-10, Defendants and Appellees. Headlands Mortgage Company and Headlands Home Equity Loan Trust, Third-Party Plaintiffs and Appellants, v. Linda Weir and Western Surety Company, Third-Party Defendants and Appellees.
    No. 20010599.
    Supreme Court of Utah.
    Feb. 14, 2003.

      Edward M. Garrett, James D. Garrett, Salt Lake City, for plaintiff.
    J. Bruce Reading, Lisa A. Jones, William G. Wilson, Salt Lake City, for defendants Robert C. Cosby, Annie L. Johnson and United Security Financial.
    John B. Wilson, Laura S. Scott, Salt Lake City, for defendant Chase Manhattan Mortgage Co.
    David E. West, Salt Lake City, for defendants Headlands Mortgage Co. and Headlands Home Equity Loan Trust.
    John N. Braithwaite, Robert C. Olsen, Salt Lake City, for defendants Linda Weir and Western Surety Co.
   WILKINS, Justice:

¶ 1 The plaintiff, Rosalind Cazares (“Ca-zares”), appeals the trial court’s decision to conduct a hearing, pursuant to rule 104 of the Utah Rules of Evidence, to determine the admissibility of handwriting evidence offered to prove forgery of deeds to real property. She also challenges the trial court’s grant of defendants’ motion to preclude the introduction of that handwriting evidence and the trial court’s order of dismissal. Cazares challenges the trial court’s decisions as violating her rights under the Utah Constitution, article I, sections 7, 10, and 11. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

I. FACTUAL BACKGROUND

¶ 2 Cazares, in her capacity as the personal representative of the estate of Rosemary Cosby (the “decedent”), sued the various defendants in this case for their roles in an alleged conspiracy to fraudulently obtain title to four parcels of real property owned by the decedent. The properties are all in Salt Lake County and are located on Deer Hollow Drive (“Deer Hollow property”), in the Zion Summit Condominiums (“Zion Summit property”), in the Park Crest Subdivision (“Park Crest property”), and on Libby Way (“Libby Way property”). In her complaint Cazares alleged that the decedent’s widower, Robert Cosby (“Cosby”), and another defendant, Annie Johnson (“Johnson”), forged or oversaw the forgery of deeds to the above properties. The other defendants were allegedly aware of or benefitted from the forgeries. These alleged forgeries affect each of the properties.

A Deer Hollow Property

¶ 3 Cazares alleges that signatures of the decedent on deeds to the Deer Hollow property dated November 2, 1994 and August 18, 1995 were forged by or at the direction of Cosby. The November 2, 1994 deed, a quitclaim deed, purported to transfer the property from the decedent to Cosby and the decedent together as joint tenants. Cazares offers a handwriting expert’s opinion that the signature of the decedent on the quitclaim deed was not genuine. A deed of trust was apparently contemporaneously executed on November 2, 1994 by both the decedent and Cosby to secure a loan of $420,000 from United Security Financial (“USF”). Nothing in the complaint challenges this deed. The August 18, 1995 deed of trust was allegedly forged to enable Cosby to borrow $595,000 against the property from another defendant, Chase Manhattan Mortgage Company (“Chase Manhattan”). A subsequent deed of trust was granted by Cosby on May 5, 1997 to yet another defendant, Headlands Mortgage Company, to secure $168,000 borrowed by Cosby. No forgery is alleged on this deed as it is in the name of Cosby alone, having been executed after the decedent’s January 1997 death. Each of the deeds on the Deer Hollow property was stamped with a notary’s seal and recorded.

¶ 4 In sum, Cazares alleges that two deeds were forged in connection with the Deer Hollow property: the November 2,1994 quitclaim deed and the August 18, 1995 trust deed. The challenged November 2, 1994 deed was acknowledged by Linda Weir (“Weir”), a notary public. The August 18, 1995 deed was acknowledged by Tarei East-burn (“Eastburn”), also a notary public. Ca-zares’s complaint seeks to quiet title in the Deer Hollow property against Cosby, Chase Manhattan, Headlands Mortgage Company, and Headlands Home Equity Trust, another defendant.

B.Zion Summit Property

¶ 5 Cazares alleges that Cosby forged a quitclaim deed and a deed of trust to the Zion Summit property in order to borrow $105,000 from USF. The quitclaim deed, dated December 16, 1996, purportedly conveyed the condominium from the decedent to both Cosby and the decedent “as joint tenants with full rights of survivorship.” Cazares again offered the opinion of a handwriting expert as proof of the forgeiy of this quitclaim deed. A trust deed, dated the same day, was offered as security for the loan from USF. Both deeds were recorded and bear the acknowledgment of Patricia Tunson (“Tunson”), a notary. Because the two deeds to the Zion Summit property are forgeries, alleges Cazares, title to the property should be quieted in her as the decedent’s personal representative.

C. Park Crest Property

¶ 6 A quitclaim deed to the Park Crest property, dated August 16, 1996, allegedly conveyed the property from the decedent to both Cosby and the decedent “as joint tenants with full rights of survivorship.” Ca-zares’s handwriting expert offered his opinion that the decedent’s signature on this deed was also a forgery. This deed was acknowledged by Weir and recorded. Cosby has since conveyed the property to Scott Bryce. Cazares does not seek to quiet title to this property but instead alleges fraud and conversion against Cosby on this property.

D. Libby Way Property

¶ 7 Johnson was accused of forging or overseeing the forgery of a quitclaim deed dated March 25, 1994 on the Libby Way property. The decedent’s signature on this deed was also a forgery according to Ca-zares’s handwriting expert. This deed was recorded and bears the acknowledgment of Weir. Johnson later conveyed this property to USF in a deed dated December 12, 1994. Cazares seeks to quiet title in the Libby Way property against Johnson and USF.

II. PROCEEDINGS BELOW

• ¶ 8 Before trial, it became apparent that Cazares planned to introduce testimony of lay and expert witnesses regarding the handwriting of the decedent to show forgery of the challenged deeds. To resolve questions of admissibility of handwriting evidence, the trial court conducted a hearing pursuant to Utah Rule of Evidence 104. After the hearing, the court granted a motion in limine to exclude evidence of handwriting to prove forgery holding that no handwriting evidence would be allowed so long as the acknowledging notary was available to testify concerning the deed. The authorities cited by the court for its ruling were sections 57-2-10 and -14 of the Utah Code (1994), which list types of evidence allowed to prove an instrument affecting real property. The court then offered Cazares an opportunity to challenge the credibility of the notaries to the questioned deeds. At a hearing on May 21, 2001, two of the notaries testified regarding their acknowledgment of the deeds and the court had before it the affidavit of the third notary.

¶ 9 As to the Zion Summit quitclaim deed, Tunson admitted that she had not witnessed the execution of the deed in person, but acknowledged it at the request of the decedent with whom she spoke on the telephone. As to the Deer Hollow, Park Crest, and Libby Way quitclaim deeds, Weir testified that she had acknowledged each deed but could not recall whether the decedent had personally appeared before her to execute the documents or later acknowledged that she had signed them. She testified that both scenarios occurred at various times in her relationship with the decedent. The affidavit of Eastburn, who was the acknowledging notary to deeds to the Deer Hollow property, indicates that she could not specifically recall whether the decedent was personally before her when the deed was executed or whether she merely verified the decedent’s signature later.

¶ 10 Finding that Cazares had not discredited the notaries, the court held that Cazares had not overcome the requirements of sections 57-2-10 and -14 and could not introduce handwriting evidence. Without this evidence and with the finding that the notaries’ testimony was credible, the court held that Cazares could not meet her burden under Utah Code Ann. section 57-4A-4 (2000) to show that the recorded deeds were forged, and dismissed the case. The trial court’s stated reason for dismissing the claims was for “no cause of action.”

ANALYSIS

I.STANDARD OF REVIEW

¶ 11 Regarding whether the trial court was permitted to conduct a hearing pursuant to rule 104 of the Utah Rules of Evidence to determine admissibility of evidence, we inquire whether the trial court abused its discretion. Morton v. Cont’l Baking Co., 938 P.2d 271, 274-75 (Utah 1997) (noting judge’s latitude in conducting court business). Because the trial court’s order excluding handwriting evidence was based on the interpretation of a statute, that ruling will be reviewed for correctness. State v. Pena, 869 P.2d 932, 936 (Utah 1994). Whether the trial court properly dismissed the case for failure to state a claim is a question of law, reviewed for correctness. Stokes v. Van Wagoner, 1999 UT 94, ¶ 6, 987 P.2d 602. Because of our disposition of the above issues, it is not necessary to reach Cazares’s constitutional challenges.

II.104 HEARING

¶ 12 The text of rule 104 of the Utah Rules of Evidence explicitly provides that the court will determine “[preliminary questions concerning ... the admissibility of evidence.” Utah R. Evid. 104(a). The discretion to do so rests solely with the trial court. Thus, the court’s decision in this case to hold a hearing to determine the admissibility of handwriting evidence was not an abuse of discretion.

III.TRIAL COURT’S DISMISSAL

¶ 13 The trial court’s dismissal in this case was improper. As we note above, the trial court apparently premised its dismissal on rule 12(b)(6) of the Utah Rules of Civil Procedure. “[W]hen ‘determining whether a trial court properly dismissed an action under rule 12(b)(6), we assume that the factual allegations in the complaint are true and we draw all reasonable inferences in the light most favorable to the plaintiff.’ ” Valley Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361, 362 (Utah 1997) (internal citation omitted). Doing so, it is apparent that the dismissal in this case was not justified.

¶ 14 A rule 12(b)(6) dismissal is merely a recognition by a trial court that a plaintiffs claim for relief is formally deficient. Id. at 362. Cazares’s case was improperly dismissed because her complaint was sufficient, alleging as it did that the challenged deeds were forgeries. The defendants below never argued that the complaint was inadequate.

¶ 15 Instead of reviewing “the formal sufficiency of the claim for relief,” id., the trial court in this case apparently applied the findings of fact from the evidentiary hearing to what was to be the ultimate issue at trial and concluded that Cazares could not prevail. However, the evidentiary hearing was for the limited purpose of determining the admissibility of evidence, not the trial of the case. Rather than viewing the factual allegations of the complaint in the light most favorable to the plaintiff, the trial court applied its own findings of fact from the evidentiary hearing to resolve any doubts about the evidence. One court discussing judicial findings of fact in pretrial evidentiary hearings has noted that although “[t]he preliminary question ... may also coincide with an ultimate question of fact for the jury ... the trial judge is ruling on the admissibility of evidence, not [the ultimate outcome of the trial].” United States v. Enright, 579 F.2d 980, 985 (6th Cir.1978). In this case the trial court inappropriately relied on factual determinations from the evidentiary hearing, and we reverse.

IV. EXCLUSION OF HANDWRITING EVIDENCE

¶ 16 We turn now to the trial court’s ruling that evidence of the decedent’s handwriting was inadmissible to show forgery where the deeds in question had been acknowledged by a notary. We reverse the trial court’s broad ruling that the notaries in this case were all subscribing witnesses.

A. Historical Background of Subscribing Witness Statute

¶ 17 Section 57-2-10 of the Utah Code establishes a hierarchy of admissible evidence for proving the execution of an instrument affecting real property. Utah Code Ann. § 57-2-10 (2000). It requires that a subscribing witness, if available, testify to establish proof of execution. In the event a subscribing witness is unavailable, it allows the use of handwriting evidence to prove execution. Id. § 57-2-10(2). This hierarchy is reinforced by section 57-2-14, which prohibits handwriting evidence when a subscribing witness is available. Id. § 57-2-14. The order of proof found in section 57-2-10 has been essentially untouched for over 125 years. Compare 1876 Utah Laws 638, with Utah Code Ann. § 57-2-10 (2000).

¶ 18 Despite the stability of sections 57-2-10 and -14, the requirements for a validly executed conveyance of real estate have changed. In 1876, a valid conveyance required the signatures of the grantor or an agent and “one or more credible witnesses.” 1876 Utah Laws 617. This requirement had disappeared by 1888. 1888 Utah Laws 3916. Although the requirement for a subscribing witness to deeds to real property has disappeared, subscribing witnesses, where present, remain the preferred method of proving due execution of a deed.

B. Modem Application of Subscribing Witness Statute

¶ 19 The hierarchy of proof favoring the testimony of subscribing witnesses remains in effect and we must enforce it. This is because this court assumes that the legislature, in repealing the requirement that a subscribing witness sign every deed for it to be valid, yet retaining the provision now found in section 57-2-10, was mindful of the retained provision and its related subject matter and wished it to be given effect. See Murray City v. Hall, 663 P.2d 1314, 1318 (Utah 1983) (citing 2A C. Sands, Sutherland Statutory Construction § 51.02 (4th ed.1973) for the proposition that legislatures know of statutes of related subject matter and have them in mind when enacting new statutes).

¶ 20 Accordingly, we hold that when a notary acknowledges the execution of a deed, having personally witnessed that execution, the notary qualifies as a subscribing witness within the meaning of section 57-2-10. We reverse the ruling of the trial court to the extent it prohibited introduction of handwriting evidence on deeds acknowledged by a notary who did not contemporaneously witness the execution of the deed. We remand on those deeds where it is not apparent in the record whether the acknowledging notary personally witnessed the execution of the questioned deed. See infra Part IV.C.

¶21 Our holding is in accord with the definition of subscribing witness found in Black’s Law Dictionary and with good public policy. A subscribing witness is “[o]ne who witnesses the signatures on an instrument and signs at the end of the instrument to that effect.” Black’s Law Dictionary 1597 (7th ed.1999). Requiring a notary to personally witness the execution of an instrument for her acknowledgment to be given the weight of a subscribing witness’s signature reflects both the desire to effectuate, in a modern context, the strong presumption of proof given subscribing witnesses’ signatures and the need to guard against the potential for mischief that follows from granting that same presumption to a notarial acknowledgment of a previously executed instrument.

C. Application of Subscribing Witness Statute to Challenged Deeds

¶ 22 For purposes of today’s holding, evaluation of Cazares’s argument for the introduction of handwriting evidence to prove forgery of the challenged deeds must begin and end with determining whether the acknowledging notaries of each deed qualify as subscribing witnesses.

¶ 23 Tunson, the notary to both challenged deeds on the Zion Summit property, admitted that her acknowledgments followed a telephonic request by the decedent, not Tun-son’s presence during execution. Accordingly, evidence of the decedent’s handwriting on the December 16, 1996 deeds to the Zion Summit property, if otherwise admissible, cannot be excluded under sections 57-2-10 and -14.

¶24 Cazares has challenged four other deeds as forgeries: the November 2, 1994 quitclaim deed and the August 18,1995 trust deed to the Deer Hollow property, the March 25, 1994 quitclaim deed to the Libby Way property, and the August 16, 1996 quitclaim deed to the Park Crest property. All but the August 18, 1995 deed on the Deer Hollow property were acknowledged by Weir. The trial court made no finding as to whether the three challenged deeds acknowledged by Weir were executed in her presence. As to these three deeds, therefore, we remand for the trial court to make this determination and proceed accordingly. Likewise, no finding was made regarding whether the execution of the August 18, 1995 deed was personally witnessed by Tarci Eastbum, the acknowledging notary; we remand that issue for the trial court’s resolution.

CONCLUSION

¶ 25 We agree with the trial court that notaries public who acknowledge the execution of deeds to real property may be subscribing witnesses within the meaning of sections 57-2-10 and -14 of the Utah Code. However, we reverse the trial court’s determination that Patricia Tunson, the acknowledging notary to the Zion Summit deeds, qualifies as a subscribing witness because we hold that a notary may only be a subscribing witness to a deed if she personally witnesses its execution, which Tunson did not. As the record is devoid of a finding or sufficient evidence to determine whether the notaries to the remaining deeds personally witnessed their execution by the decedent, we remand to the trial court for further proceedings consistent with this opinion.

¶ 26 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice RUSSON, and Judge GREENWOOD concur in Justice WILKINS’ opinion.

¶ 27 Justice HOWE did not participate herein; Court of Appeals Judge PAMELA T. GREENWOOD sat.

      . Based on the language of the trial court's order, we assume the dismissal was premised on rule 12(b)(6) of the Utah Rules of Civil Procedure. At oral argument, however, counsel for Cosby, Johnson, and USF conceded that he could find no rule that would support the trial court's dismissal in this case.


author: PER CURIAM:

text:
    2003 UT App 60
    STATE of Utah, Plaintiff and Appellee, v. Jose R. VALDEZ, Defendant and Appellant.
    No. 20010146-CA.
    Court of Appeals of Utah.
    Feb. 27, 2003.
    Michael L. Humiston, Heber City, for Appellant.
    Mark L. Shurtleff and Joanne C. Slotnik, Asst. Attys. Gen., Salt Lake City, for Appel-lee.
    Before JACKSON, P.J., BILLINGS, Associate P.J., and BENCH, J.
   MEMORANDUM DECISION

PER CURIAM:

¶ 1 Appellant Jose R. Valdez appeals his conviction of Driving Under the Influence of Alcohol, a class A misdemeanor.

¶ 2 Valdez unsuccessfully moved to dismiss the case for lack of state court jurisdiction, claiming both that the alleged offense occurred in Indian country and that Valdez was Indian. The district court denied the motion based upon its conclusion that Valdez is not Indian. Valdez appealed his conviction, raising the jurisdictional issue and other claims of error. After Valdez filed his opening brief, the State filed a motion to dismiss the appeal for lack of jurisdiction because the record established that the offense occurred in Indian country and the victim was Indian. Valdez opposed the motion on the procedural ground that the State sought dismissal of the appeal, but it did not concede that the conviction should be summarily reversed.

¶ 3 The State now candidly concedes that its motion did not clearly articulate the requested remedy resulting from its concession that the district court lacked jurisdiction. Accordingly, the State clarifies that “the district court’s lack of jurisdiction should result in reversal of defendant’s conviction and dismissal of the case.” The State, therefore, “renews its concession that the district court lacked jurisdiction because the victim who was injured as a direct result of defendant’s criminal conduct [is] clearly an Indian for jurisdictional purposes.”

¶ 4 It is well-settled that subject matter jurisdiction may be raised at any time, by either party or the court. See State v. Perank, 858 P.2d 927, 930 (Utah 1992). The State has identified the jurisdictional issue, not raised in district court, that Valdez’s spouse is an Indian victim of a crime committed in Indian country. Valdez’s spouse testified that she is an enrolled member of the federally-recognized Ute Tribe. The State correctly concedes that state jurisdiction over crimes committed in Indian country is limited to criminal acts committed “by non-Indians against non-Indians ... and victimless crimes by non-Indians.” Solem v. Bartlett, 465 U.S. 463, 465 n. 2, 104 S.Ct. 1161, 1163 n. 2, 79 L.Ed.2d 443 (1984). The State’s concession is dispositive and makes it unnecessary to reach the other assignments of error.

¶ 5 Accordingly, we reverse the district court’s judgment because it lacked jurisdiction over the case, and we remand for dismissal of the case.

      . The crime was charged as a class A misdemeanor because Defendant "inflicted bodily injury upon another as a proximate result" of driving under the influence. Utah Code Ann. § 41-6-44(3)(a)(ii)(A) (1998).


author: LEHMAN, Justice.

text:
    2003 WY 43
    Roger C. NYBERG, Appellant (Plaintiff), v. STATE of Wyoming MILITARY DEPARTMENT; Major General Ed Boenisch, Individually and in his Official Capacity as Adjutant General, State of Wyoming, Appellees (Defendants).
    No. 02-117.
    Supreme Court of Wyoming.
    March 31, 2003.

      C.M. Aron of Aron and Hennig, LLP, Laramie, WY, Representing Appellant. Argument by Mr. Aron.
    Hoke MacMillan, Attorney General; John W. Renneisen, Deputy Attorney General; and John D. Rossetti, Senior Assistant Attorney General, Representing Appellee. Argument by Mr. Rossetti.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] Roger Nyberg (Nyberg) appeals the district court’s dismissal of his complaint in which he sought damages and reinstatement as a Wyoming Air National Guard (WANG) technician based on, among other things, wrongful termination and deprivation of civil rights under 42 U.S.C. § 1983. The district court dismissed both these claims for lack of subject matter jurisdiction. We affirm.

ISSUES

[¶ 2] Nyberg presents two issues for review:

1. Whether a National Guard order based on federal authority, and on the recommendations of a federal administrative board under federal regulations, is a state agency action subject to judicial review by a Wyoming District Court.
2. Whether the federal Feres doctrine, by which the federal government is immune from tort claims by soldiers, grants civil rights claims immunity to conduct of the Wyoming Adjutant General where:
(a) the federal military determines the conduct to be in dereliction of military duty; and
(b) the Adjutant General claims the conduct to be state agency action.

The State of Wyoming, Military Department (State) and Ed Boeniseh as Adjutant General (Boenisch) phrase the issues as follows:

1. Did the District Court correctly determine that it lacked jurisdiction over Ny-berg’s wrongful termination claim for the reason that Nyberg failed to seek judicial review of final agency action under the Administrative Procedure Act and the Wyoming Rules of Appellate Procedure?
2. Was the dismissal of Nyberg’s 42 U.S.C. § 1983 claim against the State and Boenisch proper pursuant to the Feres doctrine?

FACTS

[¶ 3] Nyberg was a Lieutenant Colonel in WANG. In order to maintain his state officer appointment, Nyberg was required to maintain his federal recognition as a military officer. Nyberg was also employed as a National Guard technician in the Wyoming Guard. A condition of his technician employment was that he remain a member of WANG. On October 14, 1997, the Wing Commander, Colonel Robert D. Rodekohr, recommended to Boenisch that Nyberg be separated from WANG on the basis of misconduct.

[¶4] On October 14, 1997, Nyberg received a letter of Notification of Recommendation for Separation or Discharge. The letter informed him that it was being recommended that he be separated from WANG and as a reserve officer in the United States Air Force in accordance with AFI 36-3209, Chapter 2, Section C. A discharge board was convened and hearings were held. Nyberg was present at the hearing and utilized both military and civilian counsel. Nyberg was allowed to introduce evidence, call witnesses, and cross examine the witnesses against him.

[¶ 5] The discharge board deciding the issue consisted of three officers, superior in rank to Nyberg, from outside the command. The board concluded that misconduct occurred and recommended that Nyberg be discharged from both WANG and as a reserve officer in the United States Air Force. The record of the board’s proceedings was forwarded to Major Paula Zaleski for legal review and recommendations. Zaleski completed a detailed legal review and issued a report to Boeniseh. This report recommended acceptance of the board’s findings. Boeniseh decided to separate Nyberg from WANG. Boeniseh then forwarded the record to the Secretary of the Air Force for a determination of whether Nyberg would be separated as a reserve officer in the United States Air Force. Nyberg’s federal recognition was never withdrawn; but, because he was no longer a member of WANG, Nyberg’s military technician employment was terminated.

[¶ 6] On September 13, 2000, Nyberg filed an action against the State and Boen-isch for money damages, a permanent injunction, and reinstatement. In his complaint, Nyberg alleged that as a National Guard technician he could only legally be terminated by proper application of federal procedures, in this case Air Force Instruction (AFI) 36-3209, or if he was discharged from WANG in compliance with Wyo. Stat. Ann. § 19-2-301(b) (Michie 1997). This statute requires that the discharge be either for cause on the recommendation of an efficiency board or upon conviction by court martial for violation of military law. Nyberg alleged that these procedures were not followed because a state efficiency board was never convened, a court martial never took place, and AFI 36-3209 was not followed. Instead, he contends the discharge board deciding the issue was a Withdrawal of Federal Recognition Board, which only allowed the Adjutant General to recommend withdrawal of Ny-berg’s federal recognition, not discharge Ny-berg from WANG.

[¶ 7] The State and Boeniseh filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim pursuant to W.R.C.P. 12(b)(1) and 12(b)(6). On January 14, 2002, the district court dismissed the wrongful termination claim for lack of subject matter jurisdiction. The district court found that the defendants were an agency within the scope of the Wyoming Administrative Procedure Act and that the order separating Nyberg from WANG was a final agency action. Because Nyberg failed to file a petition for review of the final administrative action, the district court found that judicial review was time barred. On March 20, 2002, the court further dismissed the civil rights claim for lack of subject matter jurisdiction based on the Feres doctrine ruling that the claims were nonjusticiable. These orders are the subject of this appeal.

STANDARD OF REVIEW

[¶ 8] The ultimate question for our review is whether the district court has subject matter jurisdiction over Nyberg’s wrongful termination claim and his 42 U.S.C. § 1983 claim. The district court found that it lacked subject matter jurisdiction to hear the claims. A court has jurisdiction when it has the “power to hear and determine a matter in controversy.” Garnett v. Brock, 2 P.3d 558, 561 (Wyo.2000) (citing In Interest of MFB, 860 P.2d 1140, 1146 (Wyo.1993)). We review jurisdictional questions de novo pursuant to our power and duty to address jurisdictional defects. Id. (citing Pawlowski v. Pawlowski 925 P.2d 240, 242 (Wyo.1996)).

Wrongful

DISCUSSION Termination

[¶ 9] Although not presented by either party, our determination of this issue requires a brief review of the body of case law involving the military and military personnel. A fairly well established principle from this body of law is claims brought by military personnel for injuries arising from or in the course of activity incident to military service are nonjusticiable. Texas Adjutant General’s Dep’t v. Amos, 54 S.W.3d 74, 77 (Tex.App.2001) (citing United States v. Stanley, 483 U.S. 669, 683-84,107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Chappell v. Wallace, 462 U.S. 296, 305,103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950); Holdiness v. Stroud, 808 F.2d 417, 423 (5th Cir.1987); Crawford v. Texas Army Nat’l Guard, 794 F.2d 1034, 1035 (5th Cir.1986); Newth v. Adjutant General’s Dep’t, 883 S.W.2d 356, 357 (Tex.App.1994)). We are called on to decide whether the reach and purpose of this well established principle is applicable to the ease before us.

[¶ 10] The current climate of nonjusticia-bility for suits brought by military personnel can be traced back in large part to the case of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the Supreme Court held that the waiver of sovereign immunity provided by the Federal Tort Claims Act (FTCA) is subject to an exception. This exception, known now as the Feres doctrine, generally stands for the proposition that the federal government cannot be sued by members of the armed services for injuries that “arise out of or are in the course of activity incident to service.” Feres, 340 U.S. at 146, 71 S.Ct. at 159.

[¶ 11] In a later decision, the United States Supreme Court explained that the Feres doctrine is based on concern for the “peculiar and special relationship” between the soldier to his superiors, the effect such suits have on discipline, and the extreme results that might follow if suits under the FTCA were allowed for orders given or acts committed in the course of military duty. Amos, 54 S.W.3d at 77 (citing United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954)). In a subsequent decision, the United States Supreme Court articulated three factors supporting the Feres doctrine: 1) state law should not affect the government’s liability to military members because the relationship between the parties is distinctly federal; 2) no fault compensation schemes exist to compensate military members; and 3) the negative effect judicial review would have on military discipline. Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 672-73, 97 S.Ct. 2054, 2058-59, 52 L.Ed.2d 665 (1977).

[¶ 12] Although Feres is often thought of only in connection with claims under the FTCA, the United States Supreme Court expanded the doctrine in Chappell v. Wallace, holding that military personnel may not seek to remedy alleged constitutional violations committed by their superior officers by pursuing a Bivens type action for damages. Amos, 54 S.W.3d at 77 (citing Chappell v. Wallace, 462 U.S. at 305, 103 S.Ct. at 2362). In the course of its holding, the Court explained that the Feres doctrine is-founded, at least in part, on the notion that the military relies on a unique “hierarchical structure of discipline and obedience to command” not found in civilian settings. Chappell v. Wallace, 462 U.S. at 300, 103 S.Ct. at 2366. The Court concluded that if service members were permitted to expose their superior officers to personal liability, “[t]he special nature of military life — the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel — would be undermined.” Chappell, 462 U.S. at 304, 103 S.Ct. at 2367. In discussing its holding, the Court noted that it was not adopting a per se rule that military personnel could never seek redress in civilian courts for all wrongs suffered in the course of military service. Chappell, 462 U.S. at 304,103 S.Ct. at 2368. The Court did however dictate that “[c]ivilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the Military Establishment.” Amos, 54 S.W.3d at 77-78 (quoting Chappell, 462 U.S. at 300, 103 S.Ct. at 2366; Newth, 883 S.W.2d at 357).

[¶ 13] After Chappell, courts broadly applied the Feres doctrine. For instance, courts have applied the Feres doctrine to FTCA claims, claims under 42 U.S.C. § 1983, and Bivens claims. Watson v. Arkansas Nat’l Guard, 886 F.2d 1004, 1005-08 (8th Cir.1989). Court decisions in this area seemed to be “guided by an increasing sense of awe for things military.” Persons v. United States, 925 F.2d 292, 295 (9th Cir.1991) (quoting United States v. Johnson, 481 U.S. 681, 691, 107 S.Ct. 2063, 2069, 95 L.Ed.2d 648 (1987)). “[P]ractically any suit that ‘implicates the military judgments and decisions’ ... runs the risk of colliding with Feres.” Id. One court has concluded, “the permissible range of lawsuits by present or former servicemen against their superior officers is, at the very least, narrowly circumscribed.” Crawford v. Texas Army Nat’l Guard, 794 F.2d at 1035.

[¶ 14] In 1987, the United States Supreme Court again revisited Feres in United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), in response to confusion about when exactly the Feres doctrine as analyzed in Chappell applied. The Court held that the Chappell approach applies to all activities performed “incident to service.”

A test for liability that depends on the extent to which particular suits would call into question military discipline and deci-sionmaking would itself require judicial inquiry into, and hence intrusion upon, military matters. Whether a case implicates those concerns would often be problematic, raising the prospect of compelled depositions and trial testimony by military officers concerning the details of their military commands. Even putting aside the risk of erroneous judicial conclusions (which would becloud military decisionmaking), the mere process of arriving at correct conclusions would disrupt the military regime. The “incident to service” test, by contrast, provides a line that is relatively clear and that can be discerned with less extensive inquiry into military matters.

Stanley, 483 U.S. at 682-83, 107 S.Ct. at 3063. In sum, as a general rule the Feres doctrine is applicable “whenever a legal action ‘would require a civilian court to examine decisions regarding management, discipline, supervision, and control of members of the armed forces of the United States.’ ” Hodge v. Dalton, 107 F.3d 705, 710 (9th Cir.1997) (quoting McGowan v. Scoggins, 890 F.2d 128,132 (9th Cir.1989)).

[¶ 15] Even though all three factors supporting Feres as articulated in Sten-cel are not present in state actions, the third and possibly most important factor weighs heavily in favor of the nonjusticiability of these claims. See Stencel, 431 U.S. at 672-73, 97 S.Ct. at 2058-59. Judicial review of National Guard personnel decisions certainly creates the potential for a negative effect on military discipline. We therefore hold that state courts cannot entertain suits by Guard personnel arising out of Guard employment except in two narrow circumstances. We have several reasons for doing so.

[¶ 16] First, decisions regarding the discharge of members of the military are precisely the type of military decisions civilian courts should refrain from reviewing. Amos, 54 S.W.3d at 78. The “special relationships that define military life have ‘supported the military establishment’s broad power to deal with its own personnel’ ” instead of involving civilian courts in such decisions. Chappell, 462 U.S. at 305, 103 S.Ct. at 2368. The climate of discipline and unquestioned obedience present in the military requires that people familiar with military needs, not civilian courts, determine military personnel issues.

[¶ 17] Allowing soldiers to sue superior officers and the military department would be imprudent. Such action would “require commanding officers to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary deei-sions such as whether to overlook a particular incident or episode and whether to discharge a serviceman.” Amos, 54 S.W.3d at 79 (citing United States v. Shearer, 473 U.S. 52, 58, 105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985)). Suits by Guard personnel regarding Guard employment would destroy the legitimacy and authority of command. Surely the legislature did not intend the disruption that would occur upon judicial review of discretionary military personnel decisions. We are, as noted by the Court in Chappell, ill-equipped to evaluate the impact of such court actions on military discipline and must therefore defer to the military on such matters. See Chappell, 462 U.S. at 305, 103 S.Ct. at 2368. We, like many other civilian courts, are particularly unqualified to assess the correctness of military personnel actions.

[¶ 18] Second, we consider that the test for application of the Feres doctrine is whether the harm occurred incident to service. We have no trouble concluding that the injuries Nyberg claims resulted incident to military service. The United States Supreme Court noted in United States v. Shearer, 473 U.S. at 58-59, 105 S.Ct. at 3043, that the decision to discharge a serviceman is essentially a professional decision and that the attempt to hale military officials into court to account for their decision must fail.

[¶ 19] Third, we consider the role the National Guard plays in the nation’s defense force and the degree to which the National Guard is regulated by the federal government. The National Guard has been described as an organization with both state and federal characteristics. Courts have explained that the National Guard does not fit completely within the scope of either state or national concerns. Bowen v. Oistead, 125 F.3d 800, 802 n. 1 (9th Cir.1997) (citing Knut-son v. Wisconsin Air Nat’l Guard, 995 F.2d 765, 767 (7th Cir.1993); New Jersey Air Nat’l Guard v. Federal Labor Relations Auth, 677 F.2d 276, 279 (3d Cir.1982)). Instead, the National Guard is a hybrid organization serving the state in which it is located as well as the federal government in times of need. Knutson, at 767. At the state level, the National Guard is a state agency, under state authority and control. At the same time, federal law provides for a large part of the activity, makeup, and function of the Guard. New Jersey Air Nat’l Guard, at 279. Describing the relationship between the state and federal authority governing the National Guard, the First Circuit Court of Appeals stated the following:

The Defense Department, the Secretaries of the Army and Air Force, and the National Guard Bureau prescribe regulations and issue orders to organize, discipline, and govern the Guard. 32 U.S.C § 110. States that fail to comply with federal regulations risk forfeiture of federal funds allocated to organize, equip, and arm state Guards. Id. §§ 101, 107, 108, 501; Knutson, 995 F.2d at 767.

Charles v. Rice, 28 F.3d 1312, 1315-1316 (1st Cir.1994). Our own statutes require that beyond state law, the laws, regulations, and customs covering the United States Army and Air Force govern the National Guard. Wyo. Stat. Ann § 19-9-101(a) (LexisNexis 2001).

[¶ 20] Command of the National Guard at the state level is vested in the governor of each state, and his appointee, the Adjutant General. Charles, 28 F.3d at 1315; 32 U.S.C. § 314. The Adjutant General is a state officer appointed by the governor but he is also an agent of the United States in his capacity as an administrator for federal technicians. Williams v. Colorado Air Nat’l Guard, 821 P.2d 922, 924 (Colo.App.1991) (citing Costner v. Oklahoma Army Nat’l Guard, 833 F.2d 905 (10th Cir.1987)). Therefore, while the Wyoming National Guard appears to fit the definition of a state agency found in Wyo. Stat. Ann. § 16-3-101(b)© (LexisNexis 2001), it is not a pure state agency because of its required compliance with federal military regulation. The Adjutant General also serves in a dual role, as he is both a state appointee and an administrator of federal programs.

[¶ 21] Because the National Guard is governed in part by the federal military, we find federal decisions to be relevant in determining the proper scope of judicial inquiry into claims by Guard members. Federal courts have applied the Feres doctrine to the National Guard. “It is beyond question that the Feres doctrine generally applies to claims brought by National Guard members.” Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.1988); see also Wright v. Park, 5 F.3d 586, 588 (1st Cir.1993); Uhl v. Swanstrom, 79 F.3d 751 (8th Cir.1996); Lovell v. Heng, 890 F.2d 63 (8th Cir.1989); Estate of Himsel v. State, 36 P.3d 35, 45 n. 13 (Alaska 2001) (Matthews, Chief Justice, dissenting, collecting cases). Several state courts have applied the Feres doctrine as well. Estate of Himsel, 36 P.3d at 40 and n. 21 (citing Mangan v. Cline, 411 N.W.2d 9, 11-12 (Minn.App.1987); Zaceara v. Parker, 169 Misc.2d 266, 645 N.Y.S.2d 985, 990-91 (1996), Wade v. Gill, 889 S.W.2d 208, 209-10, 214-15 (Tenn.1994); Newth v. Adjutant General’s Dep’t, 883 S.W.2d 356, 357 (Tex.App.1994)). Three states have declined to adopt Feres including Montana, Washington, and Alaska. Estate of Himsel, 36 P.3d at 40 (citing Trankel v. State, Dep’t of Military Affairs, 282 Mont. 348, 938 P.2d 614, 621 (1997); Emsley v. Army Natl Guard, 106 Wash.2d 474, 722 P.2d 1299, 1302 (1986); but see the dissent in Himsel, 36 P.3d at 45 n. 14 asserting that these courts reject the doctrine of intra-mili-tary immunity but nonetheless make clear that claims by Guard personnel arising out of their Guard employment against the state are not permitted for other reasons).

[¶ 22] We follow the vast majority of federal courts and those state courts that apply this body of law to suits involving the National Guard. The same policies that support the nonjusticiability of claims in the United States Armed Forces arena support the non-justiciability of claims in the National Guard arena. Judicial review would undermine the military in the performance of its duties. In fact, Nyberg recognizes in his brief that actions taken by the National Guard are generally not subject to judicial review. He states “[i]f judicial review could be sought for a unilateral personnel decision by the State of Wyoming Military Department, this Court would be inundated with petitions for review of each such action. Every demotion, every denied promotion and every disciplinary action by a National Guard officer could be subject to judicial review.”

[¶ 23] Having recognized the general rule and its applicability to suits involving the National Guard, we now must recognize that exceptions to the Feres doctrine exist. The Eighth Circuit recognizes two such exceptions. First, facial challenges to the constitutionality of a military regulation or statute are not barred. Second, limited judicial review of final agency action is permitted if the official has acted beyond the scope of his statutory and regulatory authority. Watson v. Arkansas Nat’l Guard, 886 F.2d 1004, 1010-11 (8th Cir.1989). The United States Supreme Court has entertained many suits involving facial constitutional challenges to military regulations and statutes. Watson, 886 F.2d at 1010 (citing Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) (free exercise challenge to the application of an Air Force regulation restricting the wearing of headgear); Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (Fifth Amendment challenge to all-male draft registration); Brown v. Glines, 444 U.S. 348,100 S.Ct. 594, 62 L.Ed.2d 540 (1980) (First Amendment challenge to regulations concerning the circulation of petitions on Air Force bases); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (vagueness and over-breadth challenges to criminal provisions of the military code); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (Fifth Amendment challenge to statutes claimed to discriminate against women in military benefits)). As these cases demonstrate, on a federal level, a military member is able to challenge the constitutionality of a particular statute or regulation related to the military regardless of the Feres doctrine. We hold the same to be true on the state level. National Guard members are able to challenge the constitutionality of particular state statutes or regulations.

[¶24] An explanation of the second exception can be seen by examining Texas court decisions. Courts in Texas have adopted Feres and have held that state law claims would undermine military decision making as surely as the federal claims held to be nonjustieiable. See Newth v. Adjutant General’s Dep’t, 883 S .W.2d at 357. However, Texas also recognizes the second exception in which civilian courts may review military decisions. Amos, 54 S.W.3d at 78. This narrow exception is recognized “to prevent executive officers of government from causing injury by administrative actions taken by them in excess of their authority.” Id. (quoting Cole v. Texas Army Nat’l Guard, 909 S.W.2d 535, 538 (Tex.App.1995)).

[¶ 25] In Cole, a National Guard member brought suit against the Texas Army National Guard and the Adjutant General claiming that his discharge was illegal because the Adjutant General had failed to convene an efficiency board before his dismissal. Cole, 909 S.W.2d at 536-37. The Texas government code, similar to our statute, allowed the officer to hold his position until he reached the age of sixty-four or until among other things he was discharged by a court martial or efficiency board. Id. When discharging Cole, the Adjutant General had failed to convene either a court martial or an efficiency board and had made the discharging decision unilaterally without a hearing. The court held that Cole could bring suit because it was the court’s responsibility to make sure the Adjutant General did not exceed his power.

[IT 26] In making its decision the court stated:

‘What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.” Sterling, 287 U.S. at 401, 53 S.Ct. at 196 (emphasis added). Thus, there can be no question of the district court’s power to inquire whether a military officer’s administrative order exceeds his or her authority. See, e.g., State v. Sparks, 27 Tex. 627 (1864).
The courts do not interfere with most military decisions and actions, however, because they are ordinarily taken within the limits of military power and discretion. The courts do not wish to hamper military efficiency and they ordinarily have no familiarity with applicable “military law,” that is to say the law applicable to military justice, the law of war, martial law, and military government. See Alfred Avins, State Court Review of National Guard Courts Martial and Military Board Proceedings, 41 Cornell L.Q. 457, 470-71 (1956).

Cole, 909 S.W.2d at 538 n. 3.

[¶27] This court has held in a similar manner. In State ex rel. Pearson v. Hansen, 401 P.2d 954 (Wyo.1965), this court had the opportunity to consider a discharging decision within the National Guard. In Hansen, the newly elected governor removed Pearson as the Adjutant General without convening an efficiency board or a court martial contrary to the statute at the time. Pearson claimed that the governor had wrongly relieved him of his duties because he had not held a court-martial or an efficiency board. Id. at 955-56. We stated: “It is our duty to take the statutory law as we find it and to see to it that the powers conferred upon public officials are not abused.” Id. at 957. Because the governor had not complied with the requirements of the statute, this court held that the governor exceeded his powers and reinstated the adjutant general to his position. Id. at 960.

[¶ 28] We therefore agree with the well-reasoned discussion of the Texas courts and recognize this second narrow exception to the principle of judicial deference for military decisions. The district court has the power to construe the relevant statutes and determine if the Adjutant General exceeded his powers. “[W]here a [statutory] power is granted, and the method of its exercise prescribed, the prescribed method excludes all others, and must be followed.” Cole, 909 S.W.2d at 539 (quoting, Foster v. City of Waco, 113 Tex. 352, 255 S.W. 1104, 1105 (1923)).

[¶ 29] In looking at the face of Nyberg’s complaint, it appears the portion of his claim that asserts that his discharge was not in compliance with Wyo. Stat. Ann. § 19-2-301(b) may have fit within this narrow exception. As we noted, however, in ¶ 19, the National Guard is a hybrid organization and to the extent the National Guard is a state entity it is an agency. As such, when contesting the exercise of the Adjutant General’s authority, one must do so within the confines of the Wyoming Administrative Procedure Act.

[¶ 30] This requires compliance with W.R.A.P. 12.04, i.e., a petition for a writ of review of a final agency action must be filed within 30 days. Nyberg failed to comply with this rule. He waited two years to contest the discharge decision. Even though Nyberg has a colorable argument that his complaint fit the exception, he is time barred from asserting such an argument. The portion of Nyberg’s argument regarding AEI 36-3209 does not fit within either exception and is barred by the Feres doctrine. If Boenisch violated federal military rules, it is the military that must provide an avenue of relief not a civilian court. We therefore hold that the district court did indeed lack the subject matter jurisdiction to hear Nyberg’s claim.

42 U.S.C. § 1983 Claim

[¶ 31] Nyberg asserted claims against both the Wyoming Military Department and Boenisch under 42 U.S.C. § 1983 for deprivation of his civil rights. At this time it is worth noting that Nyberg makes no constitutional attack on any statute or regulation. Rather, he challenges the constitutionality of a discrete personnel action, i.e., whether he was denied due process when being discharged. Therefore, he does not fall within either of the exceptions previously noted.

[¶ 32] As with the first issue, we find federal decisions interpreting this issue helpful. Many federal courts have extended the ban on Bivens actions set forth by Chappell to 42 U.S.C. § 1983 actions against state National Guard officials. Watson v. Arkansas Nat’l Guard, 886 F.2d at 1007 (citing Brown v. United States, 739 F.2d 362, 367 (8th Cir.1984); Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.1984); Holdiness, 808 F.2d at 423; Jorden v. Nat’l Guard Bureau, 799 F.2d 99, 107-108 (3d Cir.1986); Crawford v. Texas Army Nat’l Guard, 794 F.2d at 1036).

[¶ 33] In Wright v. Park, 5 F.3d 586, 591 (1st Cir.1993), the First Circuit stated “there is no principled basis for according state actors sued under 42 U.S.C. § 1983 a different degree of immunity than would be accorded federal actors sued for an identical abridgement of rights under Bivens.” We agree and can think of no basis for such a decision either. The difference in the claims is due solely to the identity of the defendant. Martelon v. Temple, 747 F.2d at 1350-51. In this case the defendants are state officers so relief must be sought under § 1983, whereas with Bivens claims the defendants are federal officers. Id. All the policies and reasons for the Feres doctrine discussed in the first section of this opinion apply to this issue as well. To the extent Feres protects federal military personnel from Bivens claims, it should also shield state military officers from constitutional claims brought under 42 U.S.C. § 1983. Bowen, 125 F.3d at 803, n. 2.

[t 34] Lastly we would note that a purpose of the Feres doctrine is to provide for the proper relationship between the courts, Congress, and the military. It is a judicial doctrine deferring the resolution of matters “incident to service” to the military. Bowen, 125 F.3d at 805 (citing Stauber, 837 F.2d at 399). Our interference and meddling in internal National Guard matters would undermine the respect and loyalty each military member must have for their commanding officer as surely as a federal court meddling in the matters of Army would.

[Jjudges are not given the task of running the Army. The responsibility for setting up channels through which ... grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.

Chappell, 462 U.S. at 301, 103 S.Ct. at 2366 (citing Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842 (1953)).

[¶ 35] Entertaining a 42 U.S.C. § 1983 claim would surely require a civilian court to interfere in legitimate military matters. We therefore hold that the district court did not err in dismissing Nyberg’s 42 U.S.C. § 1983 claim for lack of subject matter jurisdiction based on the Feres doctrine.

CONCLUSION

[¶36] For the above stated reasons we affirm the district court’s order of dismissal' for lack of subject matter jurisdiction.

      . Wyo. Stat. Ann. § 19-2-301(b) (Michie 1997) reads:
      (b) All officers appointed in the national guard of Wyoming except the adjutant general shall hold their appointments until they have reached sixty four (64) years of age unless retired prior to that time by reason of resignation, disability, withdrawal of federal recognition, transfer to armed forces reserves or for cause to be determined by a court-martial or efficiency board legally convened for that purpose.
      This statute has subsequently been amended and renumbered. The comparable statute now reads:
      (b) All officers appointed in the national guard of Wyoming except the adjutant general shall hold their appointments until they have reached sixty-four (64) years of age unless retired prior to that time by reason of resignation, disability, withdrawal of federal recognition, transfer to armed forces reserves or for cause to be determined by a courts-martial or administrative board legally convened for that purpose.
      Wyo. Stat. Ann § 19-90-301(b) (Lexis Nexis 2001).

      . In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the United States Supreme Court held that victims of constitutional violations may sue in federal court the federal official committing the violations despite the absence of explicit statutory authorization for such a suit.

      . This case does not present the issue of how Feres would apply with respect to tort claims under the Wyoming Governmental Claims Act, which is much different than the FTCA. We, therefore, do not decide such an issue today, but do adopt the doctrine as it relates to suits by Guard personnel arising out of Guard employment.

      . At that time the exception of the adjutant general from the requirements of the statute was not provided as it is now. Hansen, 401 P.2d at 957 (citing Wyo. Stat. Ann. § 9-19 (1957)).


text:
    2003 WY 44
    Travis Lee CURETON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-52.
    Supreme Court of Wyoming.
    March 31, 2003.

      Kenneth Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Assistant Appellate Counsel; Jason M. Tangeman, Interim Director, Wyoming Defender Aid Program; Lindsay A. Hoyt, Student Director; and Douglas Stevens, Student Intern., Representing Appellant. Argument by Mr. Stevens.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Hugh Kenny, Senior Assistant Attorney General, Representing Appellee. Argument by Mr. Kenny.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] After trial, a jury convicted appellant Travis Cureton of burglary. Appellant appeals the judgment and sentence imposed upon his conviction claiming only that insufficient evidence was presented to the jury to sustain his conviction for burglary. Upon our review, we find sufficient evidence and, therefore, affirm.

FACTS

[¶ 2] At approximately 8:00 p.m. on Saturday, May 5, 2001, a bartender at the American Legion in Sheridan, Wyoming observed appellant in front of the safe holding a bank bag. Upon being noticed, appellant immediately fled the premises and headed in a northerly direction. About four hours later, Michelle Baldwin arrived at her Sheridan residence located north of the American Legion to find the door open and a half eaten piece of pizza on the floor. Because Ms. Baldwin believed someone had illegally entered her home and her husband was at work, she summoned the police. The police responded to the call and searched the house but found no one. The police then left without collecting any evidence but asked Ms. Baldwin to search her home to see if anything was missing. Later, Ms. Baldwin reported that various items were missing from her home.

[¶ 3] On Monday, May 7, 2001, Lieutenant Glen Wright began looking for appellant as a suspect in the American Legion incident, as appellant had been identified by the bartender in a photo lineup. While looking for appellant, Lt. Wright spotted a white automobile in which he believed appellant was a passenger. Upon stopping the vehicle, appellant was positively identified. However, when officers tried to take appellant into custody, appellant ran. Shortly thereafter, appellant was caught and arrested. When he was advised that he was being arrested for his participation in the American Legion incident, he denied any knowledge of this event.

[¶4] After the arrest, Lt. Wright took appellant back to the vehicle so appellant could gather his possessions from the automobile. Appellant identified that certain items were his, and both he and these possessions were transported to the detention center. Later, the driver of the vehicle in which appellant was riding when arrested contacted the police and asked if he could view the property taken when appellant was arrested to ensure that the police had not taken any of the driver’s property. When this person viewed the property, he indicated that two bottles of shampoo, some change, and a CD belonged to him. The police noticed that some of the remaining property matched the description of the Baldwins’ missing property. The Baldwins subsequently identified that four shirts, a sweatshirt, a DVD case, three Play Station games, a flashlight, a black case with a Play Station II, and a hand held tape recorder in appellant’s possession belonged to them.

[¶ 5] Appellant was charged -with petit larceny with respect to the American Legion incident and burglary stemming from what had occurred at the Baldwin residence. Initially, appellant pled not guilty to both charges. However, appellant subsequently pled guilty to the petit larceny charge regarding the American Legion incident. Appellant was convicted of the burglary charge concerning the Baldwin home following a trial by jury.

STANDARD OF REVIEW

[¶ 6] The standard of review for sufficiency of the evidence claims is well established. We must assess whether all the evidence, when viewed in a light most favorable to the State, is adequate to form the basis for an inference of guilt beyond a reasonable doubt drawn by the finder of fact. We do not consider the evidence presented by the unsuccessful party which conflicts with the successful party’s evidence, and we afford the successful party’s evidence every favorable inference which may be reasonably and fairly drawn from that evidence. Even though it is possible to draw other inferences from the evidence presented, it is the jury which has the responsibility to resolve conflicts in the evidence. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result the jury actually did. Black v. State, 2002 WY 72, ¶ 4, 46 P.3d 298, ¶ 4 (Wyo., 2002); Vanvorst v. State, 1 P.3d 1223, 1228 (Wyo.2000); Harris v. State, 933 P.2d 1114, 1123 (Wyo.1997); Blake v. State, 933 P.2d 474, 480 (Wyo.1997).

DISCUSSION

[¶ 7] Appellant contends the evidence is insufficient to convict him of burglary. He argues that he was never placed at or near the scene of the crime, that he never fled the scene because he never left Sheridan, and that he made no effort to hide from law enforcement authorities because he was driving around with his friend when he was apprehended. He also asserts there was no evidence of forced entry into the Baldwin residence and no fingerprints or other evidence were found in that residence identifying him. He posits that he was never seen near the Baldwin residence, he did not live near this residence, and he had never visited this residence. Appellant contends, therefore, that no evidence was presented connecting him directly to the Baldwin home, as no “slightly corroborative” evidence was introduced.

[¶ 8] Appellant further asserts that his possession of property stolen from the Baldwin residence is insufficient, in and of itself, to support his conviction. He argues that the items were found in his friend’s ear, not his car, and he only identified the stolen property as his because he had recently been maced by the police and was under pressure of the watchful eye of the police when he identified this property. He also contends that his flight from the officers at the time he was stopped was not indicative of guilt because his flight was in response to his involvement in the American Legion incident and not the Baldwin burglary. He claims the fact that the Baldwin residence was north of the American Legion and in the same direction in which he fled does not satisfy adequate “proximity” evidence.

[¶ 9] Finally, appellant argues that the State failed to show any nexus between the American Legion incident and the Baldwin burglary. Appellant claims the American Legion incident is dissimilar from the Baldwin residence incident because the former situation was an attempt to steal money, while particular property items were taken from the Baldwin residence. Appellant asserts that the State’s entire case is based on appellant’s involvement in the American Legion incident on the same night as the Baldwin residence burglary. Nevertheless, there was not a sufficient nexus between these two crimes to link appellant to both crimes.

[¶ 10] Viewing the evidence in a light most favorable to the State under the applicable standard of review, rather than from the viewpoint most advantageous to appellant as urged by appellant, we conclude that sufficient evidence existed to support appellant’s conviction for the crime of burglary.

[¶ 11] Upon being confronted by Officer Hill and told he was under arrest without any farther explanation, appellant struggled free and ran in an attempt to avoid arrest. We have held that flight is admissible as evidence of guilt and is admissible as tending to show consciousness of guilt. Baler v. State, 891 P.2d 754, 760 (Wyo.1995); Gentry v. State, 806 P.2d 1269, 1275 (Wyo.1991); Smizer v. State, 752 P.2d 406, 411 (Wyo.1988); Jones v. State, 568 P.2d 837, 845 n. 10 (Wyo.1977). Flight by itself is not sufficient to establish guilt, but it may be considered together with other factors as tending to show a consciousness of guilt. Miller v. State, 830 P.2d 419, 427 (Wyo.1992) (citing Jones v. State, 568 P.2d at 845 n. 10).

[¶ 12] Although appellant tries to dismiss his flight as pertaining only to his admitted actions at the American Legion, there remains a competing inference that his flight may have been in response to his fear of being arrested for the Baldwin residence burglary. The State is not required to prove the purpose of appellant’s flight. Rather, it is up to the jury to fairly draw reasonable inferences as to the purpose of appellant’s actions. Even though it is possible to draw other inferences from the evidence presented, the jury has the responsibility to resolve conflicts in the evidence. This court will not substitute its judgment for that of the jury. Henderson v. State, 976 P.2d 203, 208 (Wyo.1999) (citing Sutherland v. State, 944 P.2d 1157, 1160-61 (Wyo.1997)). Simply stated, the jury was free to consider appellant’s flight as showing consciousness of guilt for the Baldwin burglary.

[¶ 13] Furthermore, the jury was presented with appellant’s possession of the Baldwin property and appellant, himself, claimed ownership of this property. After a brief chase, appellant was apprehended and arrested and advised that he was being arrested for his participation in the American Legion incident. Appellant denied any knowledge of this event. Subsequently, Lt. Wright took appellant back to the vehicle so appellant could gather his possessions from the automobile. Appellant identified that certain items, including those items that were later identified as property of the Baldwins, were his and both he and these possessions were transported to the detention center.

[¶ 14] In particular, on some occasions, appellant personally pointed out the item as being his possession whereupon the officer would hold it out for confirmation again by appellant before it was placed in a separate pile for items identified as appellant’s property. On other occasions, appellant personally grabbed items which he stated belonged to him. Still, with smaller items, the police officers went through each item with appellant whereupon he would identify it as his possession or not. For instance, this process was utilized with respect to DVD discs. Eventually appellant identified every item that was removed from the vehicle as his property.

[¶ 15] Explicit declaration of ownership qualifies as corroboration and is an explanation which the jury could find to be false. Doums v. State, 581 P.2d 610, 616 (Wyo.1978); Newell v. State, 548 P.2d 8, 14 (Wyo.1976). Further,

[w]e have stated that the possession of stolen goods alone is not sufficient evidence to convict for burglary_However, we have also concluded with regard to burglary that, “ ‘[t]he most significant and material evidence of defendant’s guilt is his possession of the stolen property. Possession is a strong circumstance tending to show guilt and only slight corroborative evidence of other inculpatory circumstances is required’ ” to convict. Sutherland v. State, 944 P.2d 1157, 1161 (Wyo.1997) (quoting Newell, 548 P.2d at 13).

McGarvey v. State, 2002 WY 149, ¶ 14, 55 P.3d 703, ¶ 14 (Wyo.2002).

[¶ 16] Similar to the circumstances that existed in the McGarvey case wherein McGarvey was found to be in possession of the stolen items approximately sixteen hours after the burglary occurred, appellant was found to be in possession of stolen items taken from the Baldwin residence just a few days previously. A defendant’s dealing with the property as his own in proximate time to a theft is a corroborating circumstance of burglary. McGarvey, at ¶ 15. See also Downs v. State, 581 P.2d at 616.

[¶ 17] Likewise, the trial evidence showed that appellant was in proximity to the burglarized Baldwin home around the time that the burglary occurred. As noted above, the American Legion incident occurred at approximately 8:00 p.m. on Saturday, May 5, 2001, just hours before the Baldwin burglary was discovered. Upon his discovery within the American Legion, appellant fled this premises in a northerly direction. The Baldwin home is located north of the American Legion.

[¶ 18] This evidence established that appellant was in proximity to the Baldwin home both in time and space. A defendant’s presence in the neighborhood of a burglary is an important circumstance that is not to be treated merely as coincidence. Placing a defendant in the area of the scene of the crime, coupled with his possession of the victim’s property, is sufficient to sustain a conviction. Because appellant was in proximity of the burglary, he had the opportunity to commit the crime. “Evidence of opportunity to commit the crime is a link which considered with other incriminating facts may establish the guilt of the defendant.” McGarvey, at ¶ 16 (quoting Downs v. State, 581 P.2d at 616).

[¶ 19] In addition, appellant’s credibility was placed before the jury. As noted previously, upon his being advised that he was being arrested concerning the American Legion incident, appellant denied any knowledge of this event. Yet, appellant eventually pled guilty to petit larceny stemming from the American Legion incident. Of course, appellant was also positively identified as taking part in the American Legion incident.

[¶20] Finally, the record clearly establishes that the jury knew that it needed to find corroborative evidence to convict because it sent a note to the court during deliberations asking what comprised “slight corroborative evidence” and requested examples and clarification. The trial court properly responded to the jury’s inquiry by indicating that these were questions that the jury must decide on its own. Upon deliberating further, the jury determined that sufficient evidence existed to satisfy it of appellant’s guilt of the alleged crime of burglary and issued a guilty verdict. Moreover, review of the record evidences that appellant’s counsel made the very same arguments as are now presented before this court on appeal. Nevertheless, the jury rejected these arguments.

[¶ 21] We hold that adequate evidence existed in this case for the jury to form the basis of an inference of guilt beyond a reasonable doubt when such evidence is viewed in the light most favorable to the State as required. As stated previously, we will not substitute our judgment for that of the jury; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. Black v. State, at ¶ 4; Vanvorst v. State, 1 P.3d at 1228. See also Blake v. State, 933 P.2d at 480 and Harris v. State, 933 P.2d at 1123. We determine that a quorum of reasonable individuals could have come to the same result reached by the jury in this case.

CONCLUSION

[¶22] For the foregoing reasons, appellant’s conviction for burglary is affirmed.