Johnson v. Lally

• Decision Date: 12 October 1994
• Docket Number: No. 14960,14960
• Citation: 1994 NMCA 135,887 P.2d 1262,118 N.M. 795
• Parties: Neal JOHNSON, Plaintiff-Appellant, v. Joe LALLY, an Assistant District Attorney for the Second Judicial District, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1262

887 P.2d 1262

118 N.M. 795

Neal JOHNSON, Plaintiff-Appellant, v. Joe LALLY, an Assistant District Attorney for the Second Judicial District, Defendant-Appellee.

No. 14960.

Court of Appeals of New Mexico.

Oct. 12, 1994.

Phillip P. Baca, Kenneth R. Wagner & Associates, Albuquerque, for plaintiff-appellant.

Tom Udall, Atty. Gen., Joan M. Waters, Asst. Atty. Gen., Santa Fe, for defendant-appellee.

OPINION

BOSSON, Judge.

Plaintiff sues under 42 U.S.C. Section 1983 (1988) (Civil Rights Act), for violation of his civil rights by Defendant, an assistant district attorney, who allegedly initiated criminal proceedings against him maliciously and without cause. Because of absolute prosecutorial immunity, Defendant cannot be sued for monetary damages. See Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Instead, Plaintiff seeks a declaratory judgment, which is not precluded by prosecutorial immunity, declaring that his civil rights were violated by Defendant's past conduct. See Supreme Court of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719, 736-37, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980); Figueroa v. Clark, 810 F.Supp. 613, 615 (E.D.Pa.1992). The question before us on appeal is whether a declaratory judgment is an appropriate remedy solely to vindicate past grievances, when that judgment would have no significant, practical effect or purpose with regard to any future conduct of the parties. Under these circumstances the district court declined to issue declaratory relief, and on appeal, we affirm.

FACTS

Plaintiff, a pharmacist, is the owner of Clinical Pharmacy in Albuquerque. In September 1988, he reported to the Board of Pharmacy (Board) that patrons were soliciting forged prescriptions. An investigator for the Board initiated a full investigation. Plaintiff fully cooperated; he reported any suspicious prescriptions, and from a photo array identified individuals who presented forged prescriptions. As a result, several suspects were apprehended.

Once the investigation was completed, the same investigator filed a criminal complaint against Plaintiff accusing him of unlawfully filling forged prescriptions. Defendant presented the case against Plaintiff to the grand jury. Plaintiff was ultimately indicted. The state eventually dismissed the case against Plaintiff, after the district court suppressed documents illegally obtained from Plaintiff's pharmacy. Plaintiff then filed this Section 1983 action against Defendant seeking only declaratory relief and against the Board investigator seeking money damages. The action against the investigator is pending in district court and is not part of this appeal.

In his complaint, Plaintiff asserts that Defendant, as prosecutor, deliberately and intentionally withheld exculpatory evidence from the grand jury, including the fact of Plaintiff's own extensive cooperation with the investigation. Plaintiff further claims Defendant knew that the grand jury was receiving perjured testimony from the Board investigator. Because we are reviewing a motion to dismiss, we assume the truth of the allegations against Defendant, and that those allegations constitute a viable claim under the Civil Rights Act. Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 760, 750 P.2d 118, 121 (1988). We focus on the relief requested and whether Plaintiff is entitled to a declaratory judgment under widely accepted standards for that remedy.

DISCUSSION

In a similar situation, this Court recently held in Yount v. Millington, 117 N.M. 95, 869 P.2d 283 (Ct.App.1993), cert. denied, 117 N.M. 121, 869 P.2d 820 (1994), that declaratory relief, even for past constitutional violations, was not appropriate absent the likelihood of continuing, unconstitutional activity. In other words, a declaratory judgment will not issue to interpret the legality of a one-time occurrence, not likely to be repeated. Our holding in Yount could easily be applied to defeat Plaintiff's claim for declaratory relief, since there is no provable likelihood that Defendant would ever again prosecute Plaintiff on these or any other charges. However, the propriety of declaratory judgment was only one of several issues raised in Yount, and therefore, the discussion was necessarily abbreviated. We are not satisfied that Yount fully answers the issue posed in this case, and therefore, we take this opportunity to explain why, in light of its history and purpose, a declaratory judgment is not an appropriate remedy to address the kinds of wrongs alleged here, even when they may rise to the level of constitutional violations by a trusted public official.

The Federal Declaratory Judgment Act, 28 U.S.C. Section 2201 (1982), in language nearly identical to the New Mexico Declaratory Judgment Act, NMSA 1978, Section 44-6-2, requires an "actual controversy" between the parties: "In a case of actual controversy within its jurisdiction ... any court ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." In an effort to avoid the "actual controversy" requirement of these acts, Plaintiff asserts, without authority, that his declaratory action need not be brought pursuant to the federal or the state declaratory judgment acts but instead can be based on Section 1983 alone. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (issues unsupported by cited authority do not need to be considered on appeal). We believe Plaintiff is mistaken. Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

(Emphasis added.) Unlike Plaintiff, we do not interpret this language to authorize a declaratory judgment or any other, particular relief. The statute simply allows a "suit in equity" to redress the alleged deprivation; it does not create the different types of suits in equity which may be brought.

There is not a case specifically on point, but if Section 1983 were itself an independent source for declaratory judgment, then the Federal Declaratory Judgment Act would be rendered largely redundant, at least for suits involving state action. Support is drawn from the many courts that have struggled to emphasize the independent role of the Federal Declaratory Judgment Act in Section 1983 actions and the "different considerations" that enter, for example, into issuing injunctive relief under equitable powers, as opposed to declaratory relief under 28 U.S.C. Sections 2201, 2202 (1982). Roe v. Wade, 410 U.S. 113, 166, 93 S.Ct. 705, 733, 35 L.Ed.2d 147 (1973); see Perez v. Ledesma, 401 U.S. 82, 93-130, 91 S.Ct. 674, 681-700, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part, dissenting in part); Zwickler v. Koota, 389 U.S. 241, 245-47, 252-55, 88 S.Ct. 391, 394-95, 398-99, 19 L.Ed.2d 444 (1967). Furthermore, the Federal Declaratory Judgment Act was created decades after the post-civil war Civil Rights Act specifically to provide "an alternative to the strong medicine of the injunction." Steffel v. Thompson, 415 U.S. 452, 466, 94 S.Ct. 1209, 1219, 39 L.Ed.2d 505 (1974). Therefore, just as a declaratory judgment was not available historically for civil rights actions until the subsequent enactment of the Federal Declaratory Judgment Act, it is equally unavailing to Plaintiff today without satisfying the requirements of the federal Act.

It is also clear that a Section 1983 action brought in state court is subject to federal remedies in order to promote uniformity and to protect federally created interests. See Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation Sec. 4.03, at 275 (3d ed. 1991). Likewise, the standards governing the issuance of a declaratory judgment in a Section 1983 claim are best interpreted in a consistent manner. Therefore, our duty is to enforce Section 1983 by applying the "actual controversy" requirement of the Federal Declaratory Judgment Act in a manner consistent with other courts.

Plaintiff argues vigorously that an "actual controversy" does exist respecting the legality of Defendant's past conduct, regardless of whether that conduct may be repeated. According to his complaint, Plaintiff's constitutional rights were violated by prosecutorial abuse resulting in injuries to his reputation, a consequence of Defendant's actions, which, unlike Yount, continue to this day. Plaintiff is adamant that he deserves a declaratory judgment to show the world that he was unjustly accused, and thereby clear his name. Defendant's denial of these allegations would seem to create a "controversy" of some weight, which arguably could be settled by a declaration of whether or not Plaintiff was prosecuted unjustly. To Plaintiff, the controversy is all the more live and "actual," because all the operative facts have already occurred leaving nothing to speculation or conjecture. Plaintiff cites to Professor Wright for authority:

There is little difficulty in finding an actual controversy if all of the acts that are alleged to create liability already have occurred. The court is then merely asked, as in any litigation, to determine the legal consequences of past events and it is immaterial that it may be the one allegedly liable, rather than the person to whom he would be liable, who asks for the judicial declaration.

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