Decision Date28 April 2004
Docket NumberNo. 27,823.,27,823.
Citation135 N.M. 472,90 P.3d 491,2004 NMSC 16
CourtNew Mexico Supreme Court

Rhodes & Salmon, P.C., Hazen H. Hammel, Albuquerque, NM, for Petitioner.

Hinkle, Hensley, Shanor & Martin, L.L.P., Dana Simmons Hardy, Ellen Casey, Santa Fe, NM, for Respondent.


BOSSON, Justice.

{1} In Cockrell v. Board of Regents of New Mexico State University, 2002-NMSC-009, 132 N.M. 156, 45 P.3d 876, we acknowledged New Mexico's constitutional sovereign immunity, derived from both the federal Constitution and recent U.S. Supreme Court precedent. We continue to clarify the contours of that immunity by defining the limited circumstances under which a state official may be sued for prospective, injunctive relief. Consistent with federal law and our obligations as a state under the federalist compact, we apply the doctrine of Ex parte Young to such actions as a limited exception to constitutional sovereign immunity. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)



{2} In 1974, at the age of 49, James Gill joined the Hondo Volunteer Fire Department as a charter member. During his tenure, Gill served as an engineer, fireman, and Chief of the Department, and enjoyed all the benefits received by active members of the Department. After his retirement in February 1997, Gill applied for retirement benefits of $100 a month, based on his 22 years of service. See NMSA 1978, § 10-11A-5(B) (1983) (describing eligibility for retirement annuity). Shortly thereafter, the Public Employees Retirement Board (PERB), a state agency acting as the trustee for the various retirement funds handled by the Public Employees Retirement Association of New Mexico (PERA), denied Gill's claim for benefits, stating:

Because you were over the age of 45 in 1979, the year in which you first could have acquired a service credit, YOU DO NOT QUALIFY to be a member and therefore, do not qualify for the benefits under the Volunteer Firefighters Retirement Act.

{3} The Volunteer Firefighters Retirement Act (VFRA) straightforwardly defines an eligible "member" as a volunteer firefighter whose first year of service credit was accumulated "no later than the year which he attained the age of forty-five." NMSA 1978, § 10-11A-2(E) (1983, amended 2003). Although the New Mexico legislature has amended Section 10-11A-2(E) (2003) to apply to volunteer firefighters whose first year of service credit was accumulated during or after the year the firefighter attained the age of 16, Gill's claim is not moot because the amended statute refers to "an active member on the rolls of a fire department" and makes no mention of retroactive effect. "[T]he general rule is that statutes apply prospectively unless the [l]egislature manifests clear intent to the contrary." Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 33, 132 N.M. 207, 46 P.3d 668. As a result, the amended statute does not apply to current retirees, such as Gill.

{4} Gill filed charges with the Equal Employment Opportunity Commission (EEOC) and New Mexico Human Rights Division, and received a "Right to Sue" notice from the EEOC on February 28, 2000. Gill filed this lawsuit pro se and later retained counsel. Gill claims that Section 10-11A-2(E) of the VFRA violates the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (2000), which prohibits arbitrary discrimination against employees who are at least 40 years old, based solely on age. See §§ 623(a), 631(a). Gill sued PERB for declaratory relief, and an injunction that would require PERB to discontinue enforcement of Section 10-11A-2(E), the statutory provision declaring him ineligible for retirement benefits based upon his age. In response to Gill's complaint, PERB filed a motion to dismiss asserting sovereign immunity, and Gill filed a cross motion for summary judgment. The district court agreed with PERB and granted its motion to dismiss. The Court of Appeals affirmed, holding that the state had not waived its constitutional sovereign immunity, and PERB, as a state agency, was immune from suit. Gill v. Pub. Employees Ret. Bd., 2003-NMCA-038, ¶ 8, 133 N.M. 345, 62 P.3d 1227. The Court of Appeals rejected Gill's two principal theories: (1) that New Mexico's Declaratory Judgment Act, NMSA 1978, §§ 44-6-1 to -15 (1975, as amended through 2003), constituted a waiver of state sovereign immunity, and (2) that state courts can apply the Ex parte Young doctrine as a limited exception to state constitutional sovereign immunity so as to afford aggrieved citizens prospective equitable relief against state officials and curtail the violation of federal law. We agree with the Court of Appeals on the first point. However, for the reasons discussed below, we disagree with the Court of Appeals on its rejection of the Ex parte Young doctrine, which we regard as an important constitutional component to New Mexico's relationship with the United States Congress.

Federalism and State Constitutional Sovereign Immunity

{5} The subject of federalism, and specifically the balance between the powers of our national government and the powers of the several states, has been a source of debate throughout our nation's history. Recently, the United States Supreme Court has charted a new course, altering the federalist balance to extend the doctrine of state constitutional sovereign immunity and limit the power of Congress to abrogate, or override, that immunity. See Erwin Chemerinsky, The Federalism Revolution, 31 N.M. L.Rev. 7 (2001); Daan Braveman, Enforcement of Federal Rights Against States: Alden and Federalism Non-Sense, 49 Am. U.L.Rev. 611 (2000); see also U.S. Const. amend. XI.

{6} In its seminal opinion, Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court held that Congress can only authorize suits against non-consenting states when acting within its power under Section 5 of the Fourteenth Amendment, not under another source of constitutional authority such as the Commerce Clause. Section 5 of the Fourteenth Amendment contains an express grant of power authorizing Congress to enforce the Constitution "by appropriate legislation."

{7} Since that time, the Court has determined that a number of valid federal statutes could not be enforced against states, absent their consent, because Congress exceeded its power under Section 5 of the Fourteenth Amendment. For example, the Supreme Court determined that the ADEA, the statute at issue in this case, did not validly abrogate the states' constitutional sovereign immunity from suit so as to permit an aggrieved individual to enforce that statute against a state agency. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)

(holding that Congress exceeded its Fourteenth Amendment, § 5 authority, in enacting the enforcement provisions of the ADEA). Accordingly, we start from the undeniable premise that, absent their consent, states may not be sued by private individuals in federal court to enforce rights granted them under the ADEA. See also, e.g., Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (holding that Congress exceeded its Fourteenth Amendment, § 5 authority, by enacting the enforcement provisions of the Americans with Disabilities Act (ADA) to be applicable against the states).

{8} The Supreme Court has expanded the scope of state constitutional sovereign immunity to include such claims filed in state, as well as federal court. In Alden v. Maine, 527 U.S. 706, 711, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), probation officers filed a claim for overtime wages and damages against their state employer, pursuant to the federal Fair Labor Standards Act (FLSA). See also 29 U.S.C. §§ 201-219 (2000). The action against the state, initially brought in federal court, was dismissed after a determination that the FLSA did not abrogate the state's constitutional sovereign immunity. Alden, 527 U.S. at 712, 119 S.Ct. 2240. The probation officers then filed the same action in state court. Id. For the first time, the Supreme Court held that Congress also lacked the authority to subject a non-consenting state to an FLSA claim brought in state court. Id.

Limitations on the State Constitutional Sovereign Immunity Recognized in Alden

{9} Although Alden expanded the doctrine of constitutional state sovereign immunity to actions in state courts, the United States Supreme Court limited the scope of that immunity and its exceptions. For example, a state may be sued when it consents to suit. Additionally, citizens may sue an entity that is not considered an "arm of the state." Alden, 527 U.S. at 756, 119 S.Ct. 2240. Thirdly, aggrieved citizens may sue state officers for prospective, injunctive relief through the Ex parte Young doctrine. Id. at 747, 119 S.Ct. 2240.

{10} These three exceptions to state constitutional sovereign immunity describe limited circumstances under which, in the opinion of the United States Supreme Court, a federal statutory claim does not unduly encroach upon a state's autonomy or core sovereign interests. Thus, when the facts no longer support the very reason for constitutional sovereign immunity, then the doctrine must give way and state courts must allow claims to proceed in deference to federal law and the Supremacy Clause of the United States Constitution. "The principle of sovereign immunity as reflected in our jurisprudence strikes the proper balance between the supremacy of federal law and the separate sovereignty of the states." Alden, 527 U.S. at 757,119 S.Ct. 2240; see also U.S. Const. art. VI, § 2 (Supremacy Clause). Although entitled to the immunity necessary to preserve their autonomy as separate sovereigns, states are bound to recognize the...

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