New Mexico Right to Choose/NARAL v. Johnson, No. 23239.

• Docket Nº: No. 23239.
• Citation: 986 P.2d 450, 1999 NMSC 28, 127 N.M. 654
• Case Date: June 23, 1999
• Court: Supreme Court of New Mexico

986 P.2d 450
127 N.M. 654
1999 NMSC 28

NEW MEXICO RIGHT TO CHOOSE/NARAL, Abortion and Reproductive Health Services, Planned Parenthood of the Rio Grande, Curtis Boyd, M.D., Lucia Cies, M.D., Bruce Ferguson, M.D., and Lewis Koplik, M.D., Plaintiffs-Appellees and Cross-Appellants,
v.
William JOHNSON, Secretary of the New Mexico Human Services Department, Defendant-Appellant and Cross-Appellee, and
Eugene E. Klecan and Donald Schaurete, Defendants-in-Intervention and Appellants and Cross-Appellees

No. 23239.

Supreme Court of New Mexico.

June 23, 1999.

986 P.2d 451

Crider, Calvert & Bingham, P.C., Stevan Douglas Looney, Special Assistant Attorney General, Albuquerque, White, Koch, Kelly & McCarthy, P.A., M. Karen Kilgore, Santa Fe, Charles J. Milligan, General Counsel, New Mexico Human Services Department, Santa Fe, for Appellant and Cross-Appellee, William Johnson, Secretary of Human Services Department

Eugene E. Klecan, Albuquerque, for Appellants and Cross-Appellees Eugene E. Klecan and Donald Schaurete.

Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, J. Michele Guttmann, Albuquerque, Louise Melling, Catherine Weiss, Reproductive Freedom Project, American Civil Liberties Union Foundation, New York, NY, Cynthia A. Fry, Albuquerque, Priscilla Smith, Catherine Albisa, Center for Reproductive Law & Policy, New York, NY, Ann Scales, Albuquerque, Maureen Sanders, Albuquerque, Philip B. Davis, ACLU of New Mexico, Albuquerque, Roger Evans, Legal Action for Reproductive Rights, Planned Parenthood Federation of America, New York, NY, Carpenter & Chavez, Ltd., David J. Stout, Albuquerque, for Appellees and Cross-Appellants.

Paul Benjamin Linton, Acting General Counsel, Americans United for Life, Chicago, IL, for Amici Curiae Senator Duncan Scott, Representative Frank Bird, and Other Members of the New Mexico Legislature.

Bopp, Coleson & Bostrom, James Bopp, Jr., John K. Abegg, Terre Haute, IN, for Amicus Curiae Right to Life Committee of New Mexico.

Hon. Tom Udall, Attorney General, Martha A. Daly, Elizabeth A. Glenn, Assistant Attorneys General, Santa Fe, for Amicus Curiae New Mexico Attorney General.

Michael B. Browde, Christian G. Fritz, Albuquerque, for Amici Curiae New Mexico Leagues of Women Voters and New Mexico Legislators.

Martha F. Davis, Deborah A. Ellis, Now Legal Defense and Education Fund, New York, NY, Rondolyn R. O'Brien, Albuquerque, for Amici Curiae New Mexico Women's Bar Association and New Mexico Public Health Association.

OPINION

MINZNER, Chief Justice.

{1} In their cross-appeal from a district court decision denying them attorney fees, Plaintiffs New Mexico Right to Choose/NARAL and others (collectively "Plaintiffs") urge this Court to adopt an additional exception to our rule that litigants ordinarily are responsible for their own attorney fees. We decline to do so in this case. We therefore affirm the district court's decision. We award no costs on appeal.

I.

{2} In the district court, Plaintiffs sought injunctive relief against the Secretary of the Human Services Department. Plaintiffs alleged that the Department had adopted new rules for its medical assistance program that violated their constitutional rights under Article II, Sections 4 and 18 of the New Mexico Constitution. The district court enjoined the Department from enforcing its new rules, and awarded Plaintiffs costs.

{3} The Department, joined by intervenors Klecan and Schaurete, appealed the ruling on Plaintiffs' state constitutional claims.

986 P.2d 452

We affirmed that ruling in a prior opinion. See New Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-005, ¶ 61, 126 N.M. 788, 975 P.2d 841, cert. denied sub nom. Klecan v. New Mexico Rights to Choose/NARAL, ___ U.S. ___, 119 S.Ct. 1256, 143 L.Ed.2d 352 (1999) [hereinafter Johnson I]. Plaintiffs cross-appealed the district court's decision granting Klecan and Schaurete's motion to intervene and the court's decision denying them attorney fees, but Plaintiffs moved this Court prior to briefing to stay the portion of their cross-appeal that concerned attorney fees. Id. In our prior opinion, we reversed the district court's ruling allowing Klecan and Schaurete to intervene. Id. After we filed Johnson I, Plaintiffs moved for an award of costs on appeal. We then set a briefing schedule on the attorney fees issue

{4} Plaintiffs had argued at trial that they were entitled to fees under the "private attorney general doctrine." See, e.g., Arnold v. Arizona Dep't of Health Servs., 160 Ariz. 593, 775 P.2d 521, 536-37 (1989) (en banc). Plaintiffs also maintained that they were entitled to the fees under the "bad-faith exception." See State ex rel. N.M. State Highway & Transp. Dep't v. Baca, 120 N.M. 1, 6, 896 P.2d 1148, 1153 (1995). The district court declined to award attorney fees on either ground. On appeal, Plaintiffs now argue only that this Court should adopt the "private attorney general doctrine." For the following reasons, we decline to adopt this doctrine. We conclude that Plaintiffs are not entitled to an award of attorney fees or costs on appeal. We first address the attorney fees issue.

II.

{5} Plaintiffs and the Department disagree about the appropriate standard of review on this cross-appeal. The Department asserts that we review the trial court's decision to deny attorney fees for an abuse of discretion. Plaintiffs ask, however, that we review de novo "the threshold question of whether the private attorney general doctrine should be adopted." We agree with both positions, which we reconcile as follows.

{6} "This court reviews the award of attorney fees for an abuse of discretion." Gardner v. Gholson (In re Estate of Gardner), 114 N.M. 793, 804, 845 P.2d 1247, 1258 (Ct.App.1993). This appears to be the traditional statement of the standard of review on appeal. See, e.g., id.; Baca, 120 N.M. at 8-9, 896 P.2d at 1155-56; Lenz v. Chalamidas, 113 N.M. 17, 18, 821 P.2d 355, 356 (1991); Montoya v. Villa Linda Mall, Ltd., 110 N.M. 128, 130-31, 793 P.2d 258, 260-61 (1990). We have previously explained that "[a] trial court abuses its discretion when its decision is contrary to logic and reason." Roselli v. Rio Communities Serv. Station, Inc., 109 N.M. 509, 512, 787 P.2d 428, 431 (1990); accord Jaramillo v. Fisher Controls Co., 102 N.M. 614, 622-23, 698 P.2d 887, 895-96 (Ct.App. 1985).

{7} Nevertheless, even when we review for an abuse of discretion, "our review of the application of the law to the facts is conducted de novo." State v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209. Accordingly, we may characterize as an abuse of discretion a discretionary decision that "[is] premised on a misapprehension of the law." Id.; accord State v. Barnett, 1998-NMCA-105, ¶ 13, 125 N.M. 739, 965 P.2d 323; cf. State v. Torres, 1999-NMSC-010, ¶¶ 27-28, 127 N.M. 20, 976 P.2d 20 (explaining that although the admission of expert testimony is reviewed for an abuse of discretion, "the initial determination of whether to apply the [evidentiary] standard [for the admissibility of scientific evidence] entails a conclusion of law that is subject to de novo review").

{8} In this case, the district court rejected the private attorney general doctrine as a matter of law. Thus, the dispositive issue on appeal is a legal question, and we review the district court's answer to this question de novo. Because we conclude that the district court did not misapprehend the law in declining to adopt the private attorney general doctrine advocated by Plaintiffs, we would reverse the district court's decision only if it were "contrary to logic and reason." Roselli, 109 N.M. at 512, 787 P.2d at 431. Because we do not adopt the private attorney general doctrine advocated by Plaintiffs, and

986 P.2d 453

because Plaintiffs have waived their claim to an award of attorney fees on any other grounds, we cannot say that the district court's exercise of its discretion in declining to award attorney fees in this matter was illogical or unreasonable. As a matter of course, then, we conclude that the district court did not abuse its discretion in denying Plaintiffs' motion for an award of attorney fees

III.

{9} "New Mexico adheres to the so-called American rule that, absent statutory or other authority, litigants are responsible for their own attorney's fees." Montoya, 110 N.M. at 129, 793 P.2d at 259. The American rule recognizes the authority of statute, court rule, or contractual agreement. See 1 Robert L. Rossi, Attorneys' Fees § 7:1, at 336 (2d ed.1995). We have strictly adhered to this rule since our territorial days. See, e.g., City of Farmington v. L.R. Foy Constr. Co., 112 N.M. 404, 407, 816 P.2d 473, 476 (1991); Central Adjustment Bureau, Inc. v. Thevenet, 101 N.M. 612, 614, 686 P.2d 954, 956 (1984); Aboud v. Adams, 84 N.M. 683, 691-92, 507 P.2d 430, 438-39 (1973); Riggs v. Gardikas, 78 N.M. 5, 8, 427 P.2d 890, 893 (1967); Banes Agency v. Chino, 60 N.M. 297, 302, 291 P.2d 328, 331 (1955); State ex rel. Stanley v. Lujan, 43 N.M. 348, 349, 93 P.2d 1002, 1003 (1939); Goode v. Colorado Inv. Loan Co., 16 N.M. 461, 466, 117 P. 856, 857 (1911); Atchison, Topeka & Santa Fe Ry. Co. v. Citizens Traction & Power Co., 16 N.M. 163, 169-71, 113 P. 813, 814-815 (1911); cf. Dame v. Cochiti Reduction & Improvement Co., 13 N.M. 10, 15, 79 P. 296, 298 (1905) ("There is no allegation that the defendant undertook to pay attorney's fees in case of suit, and the bond attached to the complaint contains no such stipulation. In the absence of such an agreement, counsel fees cannot be awarded either as costs or otherwise.").

{10} Plaintiffs do not dispute our historical adherence to the American rule. Rather, they argue that "[t]his Court has previously articulated ... exceptions to the American Rule based on the Court's inherent, equitable powers" and that "[t]his Court has the inherent power to recognize an additional exception to the American Rule and should do so in this case." They...