Gill v. PUBLIC EMPLOYEES RETIREMENT BD.

• Decision Date: 21 November 2002
• Docket Number: No. 21,818.,21,818.
• Citation: 133 N.M. 345,62 P.3d 1227
• Parties: James GILL, Plaintiff-Appellant, v. PUBLIC EMPLOYEES RETIREMENT BOARD OF THE PUBLIC EMPLOYEES RETIREMENT ASSOCIATION OF NEW MEXICO, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

62 P.3d 1227

133 N.M. 345

James GILL, Plaintiff-Appellant, v. PUBLIC EMPLOYEES RETIREMENT BOARD OF THE PUBLIC EMPLOYEES RETIREMENT ASSOCIATION OF NEW MEXICO, Defendant-Appellee.

No. 21,818.

Court of Appeals of New Mexico.

November 21, 2002.

Certiorari Granted February 4, 2003.

Hazen H. Hammel, Cates & Hammel, P.C., Albuquerque, for Appellant.

Ellen S. Casey, JeanAnne Chesek, Hinkle, Hensley, Shanor & Martin, L.L.P., Santa Fe, for Appellee.

Certiorari Granted, No. 27,823, February 4, 2003.

OPINION

PICKARD, Judge.

{1} This case is a sequel to Cockrell v. Board of Regents of New Mexico State University, 2002-NMSC-009, 132 N.M. 156, 45 P.3d 876. There, the Supreme Court canvassed the authorities leading to Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), and held that constitutional sovereign immunity required dismissal of the plaintiff's suit to enforce his rights under the federal Fair Labor Standards Act because the New Mexico legislature had not specifically waived such immunity by statute. Cockrell, 2002-NMSC-009, ¶¶ 4-8, 11, 15, 24,132 N.M. 156,45 P.3d 876. Plaintiff here sued to enforce rights under the federal Age Discrimination in Employment Act (ADEA). Defendant had denied Plaintiff's, a volunteer firefighter's, claim for retirement benefits because the pertinent statute required him to be forty-five years of age or less when he first acquired service credit, and Plaintiff was fifty-four at that time. See NMSA 1978, § 10-11A-2(E) (1983). Plaintiff claims that the doctrine of sovereign immunity set forth in Cockrell and Alden does not apply because he sued under the New Mexico Declaratory Judgment Act, NMSA 1978, §§ 44-6-1 to -15 (1975), which waives such immunity, and because he can sue for declaratory and injunctive relief under the doctrine set forth in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). We disagree with Plaintiff's arguments and therefore affirm the dismissal of his suit.

Declaratory Judgment Act

{2} Plaintiff states that "Section 44-6-13 of the Declaratory Judgment Act plainly waives state sovereign immunity[,]" citing New Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-005, ¶ 23, 126 N.M. 788, 975 P.2d 841. In making this argument, however, Plaintiff has ignored a long history of jurisprudence under the Declaratory Judgment Act and has read New Mexico Right to Choose/NARAL entirely too broadly.

{3} Section 44-6-13 states:

For the purpose of the Declaratory Judgment Act ..., the state of New Mexico, or any official thereof, may be sued and declaratory judgment entered when the rights, status or other legal relations of the parties call for a construction of the constitution of the state of New Mexico, the constitution of the United States or any of the laws of the state of New Mexico or the United States, or any statute thereof.

The predecessor statute to Section 44-6-13 read:

"For the purpose of this act, the state of New Mexico, or any official thereof, may be sued and declaratory judgment entered when the rights, status or other legal relations of the parties call for a construction of the Constitution of the state of New Mexico, or any statute thereof."

In re Bogert's Will, 64 N.M. 438, 443, 329 P.2d 1023, 1026 (1958) (citation omitted). It can be readily seen that the only material difference between these sections of the 1975 Act and the earlier Act is that the 1975 version allows declaratory judgments to be entered on construction of federal, as well as state, law.

{4} In In re Bogert's Will, the Court reiterated the rule established in Taos County Board of Education v. Sedillo, 44 N.M. 300, 307, 101 P.2d 1027, 1032 (1940), and stated,

"We take this first opportunity to correct any impression that [what is now Section 44-6-13] is a general consent on the part of the state to be sued under its provisions. We are agreed that it has no such meaning and has no greater effect, in so far as this consideration is concerned, than merely to permit parties to sue the state under the act where the state's consent to be sued otherwise exists and the facts warrant suit."

In re Bogert's Will, 64 N.M. at 443, 329 P.2d at 1026 (quoting Taos County Bd. of Educ., 44 N.M. at 307, 101 P.2d at 1032) (emphasis added). The Declaratory Judgment Act creates no substantive rights. Am. Linen Supply v. City of Las Cruces, 73 N.M. 30, 32, 385 P.2d 359, 360 (1963); see Sangre de Cristo Dev. Corp. v. City of Santa Fe, 84 N.M. 343, 346, 503 P.2d 323, 326 (1972) (stating, in a suit for injunctive relief, that "this Court has consistently held [that] the State of New Mexico may not be sued in the courts without its permission or consent").

{5} Furthermore, the legislature has specifically indicated an intent that the New Mexico Declaratory Judgment Act be interpreted uniformly with other similar statutes and, in particular, with federal law on the subject of declaratory judgments. Section 44-6-15. Under federal law, too, the Declaratory Judgment Act is solely a procedural statute that allows enforcement of otherwise established rights; i.e., it does not create either jurisdiction or rights that do not exist by virtue of other law. B. Braun Med., Inc. v. Abbott Labs., Inc., 124 F.3d 1419, 1428 (Fed. Cir.1997) ("The Declaratory Judgment Act neither expands a court's jurisdiction nor creates new substantive rights.").

{6} Nor do we believe that New Mexico Right to Choose/NARAL, 1999-NMSC-005, ¶ 23, 126 N.M. 788, 975 P.2d 841, helps Plaintiff here. We do not consider the brief, one-paragraph discussion of sovereign immunity in that sixty-two-paragraph, important opinion to be dispositive of the issue in this case. First, the issue of immunity was raised by two citizens who were not permitted to intervene and whose issues were addressed as if they were presented by an amicus. Id. ¶¶ 21-22. It is settled law that amici must take the issues as they find them and may not raise issues not raised by the parties. Wacondo v. Concha, 117 N.M. 530, 533, 873 P.2d 276, 279 (Ct.App.1994). In New Mexico Right to Choose/NARAL, the state admitted the jurisdictional allegations and did not assert that it was immune. Id. ¶ 23. Second, the Court described a jurisdictional basis other than the Declaratory Judgment Act pursuant to which it ordinarily hears issues such as those raised in the case. Id. Thus, the Declaratory Judgment Act was not the only basis for jurisdiction, as it would be in this case. Finally, we do not believe that the Supreme Court intended to overturn decades of established law without so much as a mention of it.

{7} Therefore, we read New Mexico Right to Choose/NARAL as consistent with previous law; i.e., the Declaratory Judgment Act waives immunity only to the extent that other statutes allow the claims to be brought in other procedural contexts. For similar reasons, we do not read the discussion in Ramah Navajo School Board, Inc. v. Bureau of Revenue, 104 N.M. 302, 309-10, 720 P.2d 1243, 1250-51 (Ct.App.1986), abrogated on other grounds by Will v. Mich. Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), without mention of cases such as In re Bogert's Will, Taos County Board of Education, or American Linen Supply, to be an enforceable holding that the Declaratory Judgment Act contains a general waiver of immunity for any declaratory judgment action. See also Ramah Navajo Sch. Bd., Inc. v. Tax. & Rev. Dep't, 1999-NMCA-050, ¶ 31, 127 N.M. 101, 977 P.2d 1021 (indicating that Court of Appeals is ordinarily bound by Supreme Court precedent).

{8} In addition, in Cockrell, the Supreme Court emphasized that any waiver of constitutional immunity must be clear, unambiguous, and not left to inference. Cockrell, 2002-NMSC-009, ¶¶ 19-24, 132 N.M. 156, 45 P.3d 876. It also ruled that it would not find a waiver of immunity under circumstances in which the United States Supreme Court had found that Congress was powerless to act. Id. ¶ 23. In Kimel v. Florida Board of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), the Supreme Court held that the ADEA's abrogation of states' sovereign immunity was not a valid exercise of Congressional power under the Fourteenth Amendment. Accordingly, we reject Plaintiff's contention that the Declaratory Judgment Act waives sovereign immunity for his suit alleging a violation of the ADEA.

Ex Parte Young

{9} Plaintiff contends that his suit for declaratory and prospective injunctive relief is permitted by the doctrine set forth in Ex parte Young and analyzed pursuant to the four factors used by the federal courts. The doctrine holds that certain suits against state officers for prospective relief are not barred by sovereign immunity. See Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The four factors are (1) whether the action is against state officials, as opposed to the state itself; (2) whether the alleged conduct violates federal law; (3) whether the relief sought is permissible prospective relief, as opposed to being in actuality a retroactive award of damages; and (4) whether the suit implicates special sovereignty interests or is the functional equivalent of legal relief that would be otherwise barred. See Elephant Butte Irrigation Dist. v. Dep't of Interior, 160 F.3d 602, 609 (10th Cir.1998). Defendant contends that Ex parte Young does not apply in state courts and that Plaintiff has not satisfied the four factors in any event. Defendant also points out that Kimel involved suits that included prayers for declaratory and injunctive relief, 528 U.S. at 69, 70,120 S.Ct. 631, and the United States Supreme Court affirmed the entire dismissal of the suits, stating that, "[b]ecause the ADEA does not validly abrogate the States' sovereign immunity, however, the present suits must be dismissed." Id. at 92, 120 S.Ct. 631.

{10} Apart from the difficulties in ascertaining whether Plaintiff's claim for relief is in reality a claim for past and future damages or...