Flores v. Herrera
| Decision Date | 07 April 2015 |
| Docket Number | 33,413.,No. 35,286.,32,693,35,286. |
| Citation | 352 P.3d 695 |
| Parties | James FLORES, Plaintiff–Appellant, v. Mary HERRERA, individually and as Secretary of State of the State of New Mexico, Defendant–Appellee, and Manny Vildasol, Plaintiff–Appellee, v. State of New Mexico, Secretary of State's Office and Mary Herrera, Defendants–Appellants. |
| Court | Court of Appeals of New Mexico |
Garcia Ives Nowara, Matthew L. Garcia, Albuquerque, NM, for Appellant Flores.
Cuddy & McCarthy, LLP, M. Karen Kilgore, Evelyn A. Peyton, Santa Fe, NM, for Appellee (No. 32,693).
Law Offices of Michael E. Mozes, P.C., Michael E. Mozes, Albuquerque, NM, for Appellee Vildasol.
Hinkle Shanor LLP, Ellen S. Casey, Jaclyn M. McLean, Loren S. Foy, Santa Fe, NM, for Appellants (No. 33,413).
{1} We address two appeals that raise issues concerning the scope of the Whistleblower Protection Act (the Act), NMSA 1978, §§ 10–16C–1 to –6 (2010). During her term as Secretary of State, Defendant Mary Herrera terminated the employment of James Flores and Manny Vildasol. Separately, Mr. Flores and Mr. Vildasol sued Ms. Herrera claiming that, in relevant part, by terminating their employment, Ms. Herrera violated the Act. The two cases were decided by different district judges sitting in the First Judicial District. Ms. Herrera lost the general election in November 2010 and left office at the end of 2010. Mr. Flores filed his lawsuit December 22, 2010. Mr. Vildasol filed his lawsuit in April 2011, after Ms. Herrera had left office. In Cause No. 32,693, Mr. Flores appeals the district court's dismissal of his lawsuit. Cause No. 33,413 is an interlocutory appeal in which Ms. Herrera appeals the district court's denial of her motion to dismiss Mr. Vildasol's lawsuit against her, individually.
{2} At issue is whether Ms. Herrera may be sued pursuant to the Act in her “individual capacity.” We conclude that Ms. Herrera's status as a former officer does not exclude her from the purview of the Act. We further conclude that she may be sued pursuant to the Act in her individual capacity. Accordingly, we affirm the district court's order denying Ms. Herrera's motion to dismiss Mr. Vildasol's claim under the Act, and we reverse the district court's order dismissing Mr. Flores's claim under the Act.
{3} Section 10–16C–3 provides that “[a] public employer shall not take any retaliatory action against a public employee because the public employee” engaged in specified protected activity1 . The Act defines a “public employee” as “a person who works for or contracts with a public employer [.]” Section 10–16C–2(B). A “public employer” includes “every office or officer” within “state government[.]” Section 10–16C–2(C)(1), (4).
{5} Ms. Herrera served as Secretary of State from January 2007 through December 2010. Mr. Flores worked as Ms. Herrera's public information officer from January 2007, when Ms. Herrera took office, until September 2010, when Ms. Herrera terminated his employment. Mr. Vildasol was appointed by Ms. Herrera to the position of office administrator in January 2007. Ms. Herrera terminated Mr. Vildasol's employment in September 2010. The details underlying Mr. Flores's and Mr. Vildasol's respective terminations are not relevant to this appeal, except to say that each of them claimed that their employment was terminated in retaliation for having, in good faith, reported to the FBI and, in Mr. Vildasol's case, to other authorities, what they perceived as criminal activity by Ms. Herrera and the Office of the Secretary of State.
{6} Mr. Flores filed a complaint against Ms. Herrera “individually and as Secretary of State” for having violated the Act. Mr. Vildasol filed a complaint against the Secretary of State's Office and Ms. Herrera claiming, in relevant part, that the Secretary of State's Office and Ms. Herrera had violated the Act.
{7} In each case, Ms. Herrera moved to dismiss the complaint for lack of subject matter jurisdiction, claiming that she could not be sued in her individual capacity for violating the Act, and also claiming that because she was no longer Secretary of State she could not be sued in her official capacity.
The district court in Mr. Flores's case granted Ms. Herrera's motion to dismiss on the ground that it lacked subject matter jurisdiction over the complaint because Ms. Herrera was no longer Secretary of State. The court further reasoned that Mr. Flores could not recover against Ms. Herrera in her individual capacity because “such recovery is inconsistent with the statute which protects ‘public’ employees from the acts of their ‘public’ employers.” As to Mr. Vildasol's complaint, the district court denied Ms. Herrera's motion to dismiss.
{8} On appeal, Mr. Flores argues that the district court erroneously differentiated between Ms. Herrera's individual and official capacities which, according to Mr. Flores, in the context of the Act is a meaningless distinction. Additionally, he argues that, contrary to the district court's interpretation, the Act applies to former public officials and that the district court's narrow interpretation of the Act was inconsistent with the liberal construction afforded to whistleblower statutes, generally.
{9} In her appeal from the court's denial of her motion to dismiss Mr. Vildasol's lawsuit, Ms. Herrera argues that the Act does not permit claims against former officers, generally, nor does it permit claims against them in their individual capacity. Additionally, Ms. Herrera argues that because Mr. Vildasol does not now, nor did he ever, qualify as a “public employee” who “works for or contracts with a public employer[,]” he was ineligible to bring a lawsuit pursuant to the Act.
{10} We conclude that notwithstanding the fact that Ms. Herrera is a former officer, the Act permits an individual-capacity lawsuit against her for allegedly violating the Act while she was in office. We reject Ms. Herrera's argument that Mr. Vildasol was not a public employee. We reverse the district court's dismissal of Mr. Flores's complaint, and we affirm the district court's order denying Ms. Herrera's motion to dismiss Mr. Vildasol's complaint.
{11} At the outset, before we discuss the arguments raised by the parties, we address Ms. Herrera's and, in Mr. Flores's case, the district court's invocation of subject matter jurisdiction as a basis for dismissal of these matters. Pursuant to Rule 1–012(B)(1) NMRA, a party may move to dismiss a complaint for a lack of subject matter jurisdiction. “Subject matter jurisdiction” is the “power or authority to decide the particular matter presented.” Sundance Mech. & Util. Corp. v. Atlas, 1990–NMSC–031, ¶ 12, 109 N.M. 683, 789 P.2d 1250 (internal quotation marks and citation omitted). The district court is vested with the power and authority to decide claims arising under the Act. Section 10–16C–4(A) (); see also N.M. Const. art. VI, §§ 1, 13 ().
{12} Having reviewed Ms. Herrera's motions to dismiss, we conclude that, notwithstanding her use of the phrase “subject matter jurisdiction,” the issue raised in the dismissal motions was actually whether, pursuant to Rule 1–012(B)(6), Mr. Flores and Mr. Vildasol stated claims under the Act upon which relief could be granted. Similarly, although the district court's dismissal of Mr. Flores's case was ostensibly premised upon Rule 1–012(B)(1), the court's reasoning clearly invoked Rule 1–012(B)(6). A party's failure to state a claim upon which relief can be granted has no effect upon a court's subject matter jurisdiction.See Sundance Mech. & Util. Corp., 1990–NMSC–031, ¶ 15, 109 N.M. 683, 789 P.2d 1250. In sum, we conclude that the use of the phrase “subject matter jurisdiction” in the context of these cases was a misnomer, and Rule 1–012(B)(1) has no bearing on the issues now before us.
{13} “A motion to dismiss for failure to state a claim under Rule 1–012(B)(6)... tests the legal sufficiency of the complaint[.]” Cordova v. Cline, 2013–NMCA–083, ¶ 18, 308 P.3d 975, cert. granted,2013–NMCERT–007, 308 P.3d 134. Dismissal under Rule 1–012(B)(6) “is proper only when the law does not support a claim under the facts presented.” Vigil v. State Auditor's Office, 2005–NMCA–096, ¶ 4, 138 N.M. 63, 116 P.3d 854. We review de novo the district court's decision to grant or deny a motion to dismiss, and in so doing, we accept all well-pleaded factual allegations as true. Id.
{14} As well, issues of statutory construction present legal questions that we review de novo. Bank of N.Y. v. Romero, 2014–NMSC–007, ¶ 40, 320 P.3d 1. Finally, because the Act reflects a remedial purpose, we construe its provisions “liberally to facilitate and accomplish its purposes and intent.” Lohman v. Daimler–Chrysler Corp., 2007–NMCA–100, ¶ 31, 142 N.M. 437, 166 P.3d 1091 (internal quotation marks and citation omitted); Janet v. Marshall, 2013–NMCA–037, ¶¶ 26, 32, 296 P.3d 1253 (Fry, J., dissenting) (), cert. dismissed, 2013–NMCERT–005, 302 P.3d 1163.
{15} Ms. Herrera argues that a “former officer” is not a “public employer” as that phrase is...
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