# Opposition Brief — New Mexico Taxation & Revenue Department v. Ramah Navajo School Board, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2429%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 479 U.S. 940 ## Text ( Supreme Court, U.S, \d FILED No. 86-367 | SEP 20 068 JOSEPH F-SPAITOL IR, IN THE CLERK UNITED STATES SUPREME COURT October Term, 1987 NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Petitioner, V. RAMAH NAVAJO SCHOOL BOARD, INC. AND LEMBKE CONSTRUCTION COMPANY, INC. Respondents. ON CERTIORARI TO THE COURT OF APPEALS OF NEW MEXICO RESPONDENT RAMAH NAVAJO SCHOOL BOARD INC.'S BRIEF IN OPPOSITION MICHAEL PAUL GROSS ROTH, VAN AMBERG, GROSS, AMARANT & ROGERS 347 East Palace Avenue Post Office Box 1447 Santa Fe, New Mexico 87504 (505) 988-8979 Counsel for Respondent October 1986 SO” mn ——————— EE = = — QUESTION PRESENTED Did the New Mexico Court of Appeals err in holding that attorney's fees were properly awarded by the district court under 42 U.S.C. §1988 because the Petition- er Tax Department had violated rights conferred on Respondent Ramah Navajo School Board by treaty, general federal statutes, and a comprehensive Indian education scheme -- The Indian Self-Determination And Education Assistance Act, 25 U.S.C. §§450 et. seq. -- as well as a series of direct appropriations by Congress to Respondent Board for construction of the Ramah Navajo School? TABLE OF CONTENTS QUESTIONS PRESENTED TABLE OF AUTHORITIES ADDITIONAL STATUTES AND TREATY INVOLVED REGULATIONS INVOLVED ADDITIONS TO STATEMENT OF THE CASE REASONS FOR DENYING THE WRIT (1) (2) (3) (4) The Principal Issue Addressed By The Petition Has Already Been Settled. The Instant Case Does Not Present An Appropriate Vehicle For Examining THe Question Presented. Even Within The Parameters Of Existing Section 1983 Law, The Case Presents No Novel Question Or Issue. The Only Indien Tax Decision Involving Attorney's Fees Cited By Petitioner Was Incorrect In Its Holding And Easily Distinguished On Its Facts. CONCLUSION APPENDIX A = Order and Motion For Correction Of Record Below (Excerpt) ii 12 15 19 24 CC E'’~S ne APPENDIX B - Decision in Central Machinery oo. . State of Arizona, No. CA-CIvV 7779, June a7, 1985, Arizona Court of Appeals, 12 Indian Law Reporter 5073, cert. bending Arizona Supreme Court 7a APPENDIX ¢c . Regulations Involveqd- Indian Self-Determination Act Regulations, 25 C.F.R. Parts 27) and 274 22a APPENDIX p - Regulations Involved 25 C.F.R, Part 32 27a iii TABLE OF AUTHORITIES CASES Brown v. Board of Education, 347 U.S. 483 (1954) Bryan v. Itasca County, 426 U.S. 373 (1976) Busby School v. United States, 8 Ci. CE. 596 (1965) Central Machinery Co. v. Arizona State Tax Comm'n, 448 U.S. 160 (1980) Central Machinery Co. v. Arizona State Tax Comm'n, No. CA-CIV 7779, June 27, 1985, 12 Indian Law Reporter 5073 (Arizona Court of Appeals), cert. granted, Arizona Supreme Court Chase v. McMasters, 573 F.2d 1011 (8th Cir. 1978), cert. den., 439 U.S. 965 (1978) Confederated Salish and Kootenai Tribes v. Moe, 392 F.Supp. 1297 (D.Mont. 1974), aff'd other grounds, 425 U.S. 463 (1976) Consolidated Freightways Vv Kassel, 556 F.Supp. 740 (S.D. Iowa 1983), aff'd, 730 F.zd 1139 (8th Cir.), cert. denied, 105 S.Ct. 126 (1984) Maine v. Thiboutot, 448 U.S. 1 (1980) iv Page 22 14 22 14 21 21 20 14, 15, 16, 19 McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973) Mescalero Apache Tribe v. Jo es, 411 U.S. 145 (1973) Middlesex Cty. Sewerage Aut orit v. National Sea Clammers, 453 U.S. 1 (1981) Natonabah v. Gallup-McKinley cty. Sch. Bd., 355 F.Supp. 716 (D.N.M. 1973) Pennhurst State School and Hospital _v. Halderman, 451 U.S. 832 (1982) Ramah Navajo School Board, Inc. v. Bureau of Rev., 458 U.S. 832 (1982) Rockbridge v. inc , 449 F.2a 567 (9th Cir. 1971) United States v,. Mitchell, 463 U.S. 206 (1983) Warren Trading Post Ca. -, Arizona Tax Comm'n, 380 U.S. 685 (1965) Washington v. . ibes o Colville Res., 447 U.S. 134 (1980) ite ountain ache ibe v. Bracker, 448 U.S. 136 (1980) White Mountain ache ribe v. Williams, No. 81-5348 (9th Cir. 1986) Vv 9, 10, 24, 34, a?, 20 14 14 22, 23 14, 16, a7, ad Passim 20 20 a0, ii 14 14, 23 19, 20, 21 Sa, 22 Wi iams V. e, 358 U.S. 217 (1959) akima Gian Nation v. White- side, 617 F.Supp. 735 (E.D. Wash. 1985) UNITED STATES CONSTITUTION Indian Commerce Clause, Art. I, §8, cl. 3 TREATY 1868 Treaty between the United States and the Navajo Tribe, 15 Stat. 668, 669, Art. II and Art. VI STATUTES 42 U.S.C. §1983 oe F 7, 42 U.S.C. §1988 The Indian Self-Determination And Education Assistance Act, 25 U.S.C. §§450 et. seg. Johnson O'Malley Act, 25 U.S.C. §452 Snyder Act, 25 U.S.C. §13 Buck Act, 4 U.S.C. §§105 et. seq. New Mexico Enabling Act, 36 Stat. 558-559, §2(B) Ramah Navajo School Appropriation Acts, Public Laws 92-369; 93-120; 93-245; 93-404; 94-165; 95-74 vi 14, 19, 10 21 10, 14, 15 1, i, 2, il 15, 16, as, 229 a, 19 be By 4, 8, 13, 22 4, 5 5 6, di 5, il i, 1, 2, 7, 8, 13, di5 25 U S.C. §2010, Pub. L. 95-561, Title Ix, §1130, 92 Stat. 2321 Developmentally Disabled Act, 42 U.S.C. §§6000 et. seq. REGULATIONS 25 C.F.R. Parts 271 and 274 25 C.F.R. Part 32 OTHER House Report No. 98-748 vii Sy ae at, 18, 19 6 6 12, 13 ADD ON TES ATY INVOLVED 1868 Treaty between the United States and the Navajo Tribe, 15 Stat. 668 and 669: Art. II ... and the United States agrees that no persons except those herein so authorized to do, and except such officers, soldiers, agents and employés of the govern- ment, or of the Indians, as may be authorized to enter upon Indian reservations in discharge of duties imposed by law, or the orders of the President, shall ever be permitted to pass over, settle upon, or reside in, the territory described in this article. Art. VI. In order to insure the civili- zation of the Indians entering into this treaty, the necessity of education is admitted.... Public Law 92-369, 86 Stat. 508, 510 (1972): For construction, ee Of sev buildings and other facilities; Provided further, that not to exceed $950,000 shall be for assistance to the Ramah School on the Navajo Indian Reservation, New Mexico; Public Law 93-120, 87 Stat. 431: For construction, major repair and improvements of irrigation and power systems, buildings, utilities, and other facilities; acquisition of lands and interests in lands; preparation of lands for farming; and architectural and engineering 1 services contract, $53,703,000 to remain available until expended.... Public. Law 93-245, 87 Stat. 1073: Provided further, That $2,700,000 of the amount appropriated under this heading in the Department of Interior and Related Agencies Appropriation Act, 1974, shall be available for assistance to the Ramah Navajo School Board, Incorporated, New Mexico, for the construction of school facili- ties. Public Law 93-404, 88 Stat. 810: Provided further, That not to exceed $1,195,000 shall be available to assist the Ramah Navajo Board, Inc., including not to exceed $800,000 for construction of school facilities and not to exceed $395,000 for purchase of school equipment. Public Law 94-165, 89 Stat. 985: Provided further, That not to exceed $2,229,000 shall be available for assistance to the Ramah Navajo School Board, Incorporated, New Mexico, for the construction of school facili- ties. Public Law 95-74, 91 Stat. 293: Provided further That not to exceed $2,062,000 shall be available for assistance to the Ramah Navajo School Board, Incorporated, New Mexico, for the construction of an Instructional Media Center. Additional relevant portions of the Indian Gel f-Determination Act, 25 U.S.C. $$450 et seq., January 4, 1975, 88 Stat. 2203-2217: § 450n. Sovereign immunity and trusteeship rights unaffected Nothing in this Act shall be con- strued as -~ (1) affecting, modifying, dimini- shing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe; or (2) authorizing or requiring the termination of any existing trust responsibility of the United States with respect to the Indian people. § 458. School construction, acquisi- tion, or renovation contracts-- Authorization; prerequisites (a) The Secretary is authorized to enter into a contract or contracts with any State education agency or school district for the purpose of assisting such agency or district in the acquisition of sites for, or the construction, acquisition, or renovation of facilities (including all necessary equipment) in school districts on or adjacent to or in close proximity to any Indian reservation or other lands held in trust by the United States for Indians, if such facilities are necessary for the education of Indians residing on any such reser- vation or lands. Eligibility of private schools to receive funds; maximum amount 3 (c) The Secretary may expend not more than 25 per centum of such funds as may be authorized and appropriated pursuant to this section on any school eligible to receive funds under section 458d of this title. §458d. Same, eligibility for funds of tribe oor tribal organization controlling or managing private schools; report to Congressional Committees The Secretary is authorized and directed to provide funds, pursuant to this Act; the Act of April 16, 1934; or any other authority granted to him to any tribe or tribal organization which controls and manages any previously private school. The Secretary shall transmit annually to the Committees on Interior and Insular Affairs of the United States Senate and House of Representatives a report on the educational assistance program conducted pursuant to this section. 25 U.S.C. 2010, Public Law 95-561, Title XI, §1130, November 1, 1978, 92 Stat. 2321: It shall be the policy of the Bureau in carrying out the functions of the Bureau, to facilitate Indian control of Indian affairs in all matters relating to education. The Johnson O'Malley Act 25 U.S.C. 452, April 16, 1934 c. 147, §1, 48 Stat. 596; June 4, 1936, c. 490, 49 Stat. 1458: The Secretary of the Interior is authorized, in his discretion, to * enter into a contract or contracts with any State or Territory, or political subdivision thereof, or with any State university, college, er school, or with any appropriate State or private corporation, agency, er institution, for the education, medical attention, agricultural assistance, and social welfare, including relief of distress, of Indians in such State or Territory, through the agencies of the State of Territory or of the corporations and organizations, herein before named and to expend under such contract or contracts, moneys appropriated by Congress for the education, medical attention, agricultural assistance and social welfare, including relief of distress, of Indians in such State or Territory. The Snyder Act, 25 U.S.C. Sec. 13, Nov. 2, 2921, C. 435, %2 Stat. 208: The Bureau of Indian Affairs under the supervision of the Secretary cf the Interior, shall direct, super- vise, and expend such moneys aS Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians throughout the United States for the following purposes: General support and civilization, including education.... New Mexico Disclaimer of Jurisdiction over Indian Lands, Enabling Act, Sec. 2(B), 36 Stat. 558-559, N.M. Const., Art. XXI, sec. 2: _..but nothing herein provided for, 5 shall preclude the said state from taxing, as other lands and other property are taxed, any lands and other property outside of an Indian reservation owned or held by any Indian, save and except such lands as have been granted or acquired as aforesaid or as may be granted or confirmed to any Indian or Indians under any act of congress; but said ordinance shall provide that all such lands shall be exempt from taxation by said state so long as to such extent as congress has prescribed or may hereafter prescribe; The Buck Act, 4 U.S.C. §109, 61 Stat. 645: Nothing in Sections 105 and 106 of this title shall be deemed to authorize the levy or collections of any tax on or from any Indian that otherwise taxed. REGULATIONS INVOLVED y The relevant portions of the regulations implementing the Indian Self- Determination Act, supra, found at 25 C.F.R. Parts 271 and 274, are reproduced in Appendix C. 2. The relevant portions of the regula- tions implementing Title XI of Public Law 95-561, supra, found at 25 C.F.R. Part 32, are reproduced in Appendix D. ADDITIONS TO STATEMENT OF THE CASE Respondent Ramah Navajo School Board, Inc. is a Navajo tribal school board and is incorporated under New Mexico law. The State of New Mexico failed to prov~ ide educational! services to the Ramah Navajo community starting in 1968 when y & A closed a public high school serving the community and failed to make proper provision for Ramah Navajo children elsewhere. Among the laws which the Board alleged had been violated by the Petitioner's tax was a series of Congressional appropria- tions specifically earmarked to this Respondent for the purpose of constructing this particular school. Pub. L. 92-369, 86 Stat. 510 (1972); Pub. L. 93-245, 87 Stat. 1073 (1973) (amending Pub. L. 93-120, 87 Stat. 431 (1973))# Pub. L. 937-404, 88 Stat. 810 (1974); Pub. L. 94-165, 89 Stat. 985 (1975); Pub. L. 95-74, 91 Stat. 293 (1977). These appropriations were conveyed to Respondent Board through a series of contracts with the Bureau of Indian Affairs mandated by The Indian Self-Determination And Education Assistance Act. See, Ramah Navajo School Bd. v. Bureau of Rev.., 458 U.S. 832, at 835 and 841 (1982). The Board has already paid the legal fees at issue in this petition from the tax refund resulting after mandate issued in Ramah, supra. Only fees incurred in connection with the instant motion for fees have not yet been paid. (See Appendix A.) Recovery of the fees at issue here would therefore make the Board whole. REASONS FOR DENYING THE WRIT The respondent, Ramah Navajo School Board, Inc., respectfully requests that this Court deny the Petition for Writ of Certiorari, seeking review of the New Mexico Court of Appeals' decision in this case. That opinion is reported at —— EN N.M. , 720 P.2a 1243 and is printed at Appendix A to the Petition. (1) The Principal Issue Addressed By The Petition Has Already Been Settled. Petitioner's whole argument proceeds on the assumption that this Court in deciding Ramah Navajo School Bd. v. Bureau of Rev., supra, failed to find a State violation of an individual right conferred or guaranteed by federal law. Yet less than ten years earlier, in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, at 181 (1973), this Court unanimously found just such a violation in the case of a Navajo living and working on the Navajo reservation who had been assessed an Arizona income tax: Finally, we cannot accept the notion that it is irrelevant "whether the state income tax infringes on {appell- ant's] rights as an jndividual Navajo Indian," as the State Court of Appeals maintained. 14 Ariz. App. at 454, 484 P.2d at 223. To be sure, when Congress has legislated on Indian matters, it has, most often, dealt with the tribes as collective entities. But _ Yet even if this assumption were true, using an Indian tax case to refine or clarify the meaning of the phrase "Constitution or . Among those in this line are: Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973); Bryan v. Itasca County, 426 U.S. 373 (1976); Washington v. Conf. Tribes of Colville Res., 447 U.S. 134 (1980); Central Machinery Co. v. Arizona State Tax Comm'n, 448 U.S. 160 (1980); White Mountain Machinery Co. v. Bracker, 448 U.S. 136 (1980); and Ramah Navajo School Bd. v. Bureau of Rev., 458 U.S. 832 (1982) 3 Maine v. Thiboutot, 448 U.S. 1 (1980); Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1 (1981); Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981). 14 laws" in Section 1983 would be disadvan- tageous because so much of the Indian law in this area depends on a special linkage between the Indian Commerce Clause and the body of Indian statutes and case law which has built up over more than a century. In Indian tax cases, the distinction between the Constitution and laws of the United States has in some senses been blurred, rendering Indian cases quite ineffective as vehicles for examining broader questions focussing on that distinction. (3) Even Within The Parameters of Existing Section 1983 Law, The Case Presents No Novel Question Or issue. The instant case falls squarely within the holding of Maine v. Thiboutot, supra, where federal social security welfare benefits had been denied by State action in violation of federal law. The benefits conferred on Plaintiff in that case, like the appropriations here, became legal entitlements after they were enacted by 15 Congress. See the lower court's discus- sion, Appendix A to Petition, pp. 19a-23a, 720 P.2d, at 1253-1255. This Court in Pennhurst, supra, recognized this point when it said: [R]espondents here, unlike the plaintiff j iboutot who da at state law prevented him from receiving federal funds to which he is entitled, can only Claim that the State plan has not provided adequate ‘assurances' to the Secretary. It is at least an open question whether an individual's interest in having a State provide these 'assurances' is a ‘right secured' by the laws of the United States within the meaning of Section 1983. (emphasis added) Pennhurst State School and Hospital ov. Halderman, 451 U.S. 1, at 28 (1981). By necessary implication, then, this Court has already accepted that an individual's claim to a discrete federal appropriation constitutes a "right" within the meaning of Section 1983. That is exactly what we have here. Nothing more is needed. However, to make the point even more clearly, Pennhurst may be distinguished on 16 several other grounds as well. The issue in that case concerned a so-called "Bill of Rights" in legislation for the handicapped. Plaintiffs there claimed that Section 6010 of the Developmentally Disabled Act, 42 U.S.C. §§ 6000, et. seqd-, created substan- tive rights enforceable through Section 1983 requiring affirmative state action to provide programs for the handicapped. Nothing in the Act expressly stated this intent nor was any money granted under the Act for this purpose. Plaintiffs were thus arguing that an affirmative state obli- gation to spend an unknown amount of money arose under the Act as an implied condition for receipt of federal funds granted under the Act for other purposes. The affirm- ative nature of the obligation sought to be imposed on states in Pennhurst contrasts completely with the prohibition against state action found in McClanahan and Ramah. As the Court noted in Pennhurst: 17 The case for inferring intent is at its weakest where, as here, the rights asserted impose affirmative obligations on the states to fund certain services, since we may assume that Congress will not implicitly attempt to impose massive financial obligations on the States. 451 U.S., at 16. It also contrasts with the presumption in Indian tax cases that the absence of explicit Congressional prohibitions against state taxation is not an expression of Congressional consent. When the Tax Department in this very case argued earlier that the presumption should go against the Board and in favor of the State, as is true in non-Indian situations, the Court replied: "This argument is clearly foreclosed by our precedents." 458 U.S., at 843. In short, in Pennhurst this Court held that the language in Section 6010 of the Disabled Act was “intended to be hortatory, not mandatory". 451 U.S., at Wiis It held this way precisely because Pennhurst differed so radically on its 18 facts from Thiboutot; no federal funds were at issue in Section 6010 whereas social security funds, like the construction funds here, were at issue in Thiboutot. (4) he ndia ax ecision Involving Attorney's Fees Cited By Petitioner Was Incorrect in Its Holding And Easily Distinguished On Its Facts. White Mountain Apache Tribe v. Williams, No. 81-5348 (Ninth Circuit, Slip Opinion, August 20, 1986), is the only case cited by Petitioner for the proposition that 42 U.S.C. §§1983 and 1988 do not extend to Indian preemption and related tax cases. First, that case was incorrectly decided because it fails ‘to recognize that the tribe in question had enforceable rights under the timber regulations at issue there. Had the United States failed to enforce the timber scheme the tribe ccvld presumably have sued for breach of trust or breach of administrative obligations to enforce those rights. See, e€.G-, United 19 States v. chell, 463 U.S. 206 (1983); and ockb Vv. j , 449 F.2d 567 (9th Cir. 1972). And see, Appendix B, pp. 17a- 18a. Given the doctrine announced in McClanahan v. rizona te Tax Comm'n, supra, the Ninth Circuit erred in not recognizing the tribe's right to be free from state coercion including taxation. McClanahan, supra, 411 U.5., at 181. Congressional accommodation of the timber interests of the Apache Tribe in that case easily distinguish it from the trucking company in the dormant Commerce Clause case Consolidated Freightways v. Kassel, 556 F. Supp. 740 (S.D. Iowa 1983), aff'd 730 F.2d 1139 (8th Cir.), cert. denied, 105 S.Ct. 126 (1984), principally relied upon by the majority in White Mountain. No legislation protecting truckers existed and thus there were no statutory rights involved in Kassel. More generally, White Mountain contrasts 20 with several other Indian decisions, each of which held or implied that tax chal- lenges by Indian tribes or individuals against state tax agencies or officiais coula be framed and prosecuted under 42 U.S.C. §1983. Confederated Salish and Kootenai Tribes v. Moe, 392 F. Supp. 1297, at 1304-5 (D. Mont. 1974), aff'd other grounds, 425 U.S. 463 (1976); Chase _ Vv. McMasters, 573 F.2d 1011, 1014-16 (8th Cir. 1978), cert. denied, 439 U.S. 965 (1978); and see especially, Cent al Machine Co. v. State of Arizona, No. CA-CIV 7779, June 27, 1985, 12 Indian Law Reporter 5073, cert. pending Arizona Supreme Court, which discusses the issues involved here at length. (Reproduced in Appendix B.) (But, see, the non-tax decision in Yakima Indian Nation v. Whiteside, 617 F.Supp. 735 (E.D.Wash. 1985)). yet, even if all this were not true, White Mountain clearly involves facts which 21 differ fundamentally from the instant case on the peint at issue here. Thus: White Mountain involved no _ contracts between the federal government and an Indian tribe or organization. White Mountain involved no direct appropriation of funds creating a corpus earmarked for a particular Indian entity. White Mountain did not involve education, "perhaps the most important function of state and local government," Brown v. Board of Education, 347 U.S. 483, at 493 (1954), quoted in the decision below, Appendix A to the Petition, at 22a, 720 P.2d, at 1255. Finally, White Mountain involved no third-party beneficiaries, such as_ the Indian children here whose rights have been recognized under contracts awarded pursuant to The Indian Self-Determination Act. Busby School of the Northern Cheyenne Tribe v. United States, 8 Cl.Ct. 596, at 602 (1985) and see, e.g., Natonabah v. Gallup-McKinley 22 oun : | 355 F. Supp. 716 (D.N.-M. 1973) (holding that individual rights were violated in the case of Navajo children when federal grants to 4 public school district were misused.) All of these points were considered by the court below and demonstrate that as regards Section 1983 White Mountain and the instant case are vastly different. The points of similarity which made them "indistinguishable" in terms of state taxing powers (Petition at 13) have little bearing on the question presented here, which in any case was neither addressed nor decided in either Bracker or Ramah. 23 ONCLUSION For the foregoing reasons the Petition for Writ of Certiorari should be denied. Respectfully submitted: MICHAEL PAUL GROSS Roth, Van Amberg, Gross, Amarant & Rogers Post Office Box 1447 Santa Fe, NM 87504-1447 (505) 988-8979 Counsel for Respondent October 1986. 24 APPENDIX A IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Friday, February 14, 1986 NO. 16,235 BUREAU OF REVENUE, STATE OF NEW MEXICO, Petitioner, vs. RAMAH NAVAJO SCHOOL BOARD, INC. and LEMBKE CONSTRUCTION, Respondents. This matter: coming on for consideration by the Court upon Motion of Respondent to correct the record and for leave to file a response, and the Court having considered said motion and being sufficiently advised; NOW, THEREFORE, IT IS ORDERED that Motion to correct the record and for the leave to file a response is hereby granted. ATTEST: Rose Marie Alderete Clerk of the Supreme Court of the State of New Mexico la IN THE SUPREME COURT STATE OF NEW MEXICO RAMAH NAVAJO SCHOOL BOARD, INC. AND LEMBKE CONSTRUCTION CO., INC. Petitioners-Appellees, vs. No. 16,235 BUREAU OF REVENUE, STATE OF Court of Appeals NEW MEXICO, No. 7960 Respondent-Appellant. MOTION TO CORRECT RECORD AND R V om 4 S COMES NOW the Appellee, Ramah Navajo School Board, Inc., by and through Michael P. Gross, its attorney, and moves this Court under Civil Appellate Rules 8/(f) and 16, in order to effect substantial justice that it grant leave to correct the record by inclusion of the attorney's affidavit in support of Plaintiffs' motion for attor- ney's fees considered by the trial court and for leave to file a short response to the Petition for Certiorari out of time.... 2a er Respectfully submitted: ROTH, VAN AMBERG, GROSS, AMARANT & ROGERS By_/s/ Michael P. Gross Michael P. Gross 347 East Palace Ave. Post Office Box 1447 Santa Fe, NM 87504-1447 505/988-8979 CERTIFICATE OF SERVICE I, the undersigned, certify that a true and correct copy of the foregoing Motion tc Correct Record ana for Leave to File Response was maielad first class postage prepaid to Gerald B. Richardson, P.O. Box 630, Santa Fe, New Mexico, 87509 on this 13th day of February, 1986. /s/ Michael P. Gross MICHAEL P. GROSS 3a EXHIBIT "A" STATE OF NEW MEXICO COUNTY OF SANTA FE IN THE DISTRICT COURT FIRST JUDICIAL DISTRICT RAMAH NAVAJO SCHOOL BOARD, INC. and LEMBKE CONSTRUCTION CO., INC., Petitioners, Vv. Civ. No. SF 78-438 BUREAU OF REVENUE OF NEW MEXICO, Respondent. ATTORNEY'S AFFIDAVIT IN SUPPORT OF MOTION FOR ATTORNEY'S FEES I, the undersigned, being first duly sworn hereby depose and state: 1. I am the attorney of record for the Ramah Navajo School Board, Inc. and Lembke Construction Co., Inc., the Petitioners in the above-styled action. 4. By agreement between the Petitoners, all legal costs connected with this action have been assumed by the Ramah Navajo 4a —— a —<