State Ex Rel. Hanosh v. State Ex Rel. King

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-047

Filing Date: September 10, 2009

Docket No. 31,363

STATE OF NEW MEXICO ex rel. GEORGE J. HANOSH,
JOHN ARTHUR SMITH, TIMOTHY Z. JENNINGS,
JIM R. TRUJILLO, BENDER DEALER GROUP, INC.,
a New Mexico corporation, BORMAN MOTOR
COMPANY LAS CRUCES, L.L.C., a New Mexico
limited liability company, DESERT SUN MOTORS, INC.,
a Delaware corporation, JACK KEY MOTOR COMPANY, INC.,
a New Mexico corporation, JACK KEY MOTOR COMPANY OF
ALAMOGORDO, L.L.C., a New Mexico limited liability
company, and SCOTT PIPKIN,

Plaintiffs-Respondents,

v.

STATE OF NEW MEXICO, ex rel., GARY K. KING,
ATTORNEY GENERAL, and NEW MEXICO
ENVIRONMENTAL IMPROVEMENT BOARD,

Defendants-Petitioners.

ORIGINAL PROCEEDING ON CERTIORARI
Robert Eugene Robles, District Judge

Gary K. King, Attorney General
Tania Maestas, Assistant Attorney General
Santa Fe, NM

for Petitioners

Victor R. Marshall & Associates, P.C.
Victor R. Marshall
Albuquerque, NM

for Respondents

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New Mexico Environmental Law Center
R. Bruce Frederick
Santa Fe, NM

for Amicus Curiae
New Mexico Physicians for Social Responsibility

OPINION

BOSSON, Justice.

BACKGROUND

{1} Plaintiffs filed a complaint in district court seeking a declaratory judgment against
the New Mexico Environmental Improvement Board (EIB). Plaintiffs argued that EIB
lacked statutory authority under New Mexico law to promulgate certain regulations relating
to automobile emissions. See 20.2.88.2 to 20.2.88.112 NMAC (12/31/2007) (adopting
automobile emission standards for new vehicles in accordance with California code of
regulations, Title 13). According to Plaintiffs, certain state statutes prohibited EIB from
adopting those regulations, and Plaintiffs requested declaratory and injunctive relief to that
effect from the court. See NMSA 1978, § 74-2-5(C)(1)(a) (2007) (EIB regulations shall be
no more stringent than required by federal law); § 74-2-5(D) (vehicle emission regulations
shall be consistent with federal law). Plaintiffs filed no claims under federal law.

{2} Plaintiffs elected not to participate in EIB administrative proceedings pertaining to
the issuance of those regulations. Instead, they filed this lawsuit directly in district court,
claiming that it presented a pure question of law, challenging not the wisdom of those
regulations, but EIB’s authority under state law to even consider them. The district court
dismissed the complaint on procedural grounds; namely, that Plaintiffs had to pursue an
administrative appeal to the Court of Appeals, under NMSA 1978, Section 74-2-9 (1992)
from the EIB proceedings, and could not file a separate declaratory judgment action in the
district court.

{3} The Court of Appeals reversed, applying this Court’s recent opinion in Smith v. City
of Santa Fe, 2007-NMSC-055, 142 N.M. 786, 171 P.3d 300, to permit Plaintiffs,
independent of an administrative appeal, to raise a purely legal challenge to EIB’s statutory
authority by way of declaratory judgment. State ex rel. Hanosh v. N.M. Envtl. Improvement
Bd., 2008-NMCA-156, ¶ 13, 145 N.M. 269, 196 P.3d 970. In its petition for a writ of
certiorari with this Court, EIB challenges whether Smith authorizes declaratory relief in lieu
of an administrative appeal. Secondarily, EIB claims that it is immune from suit under
common-law sovereign immunity and cannot be sued even for declaratory relief without its
express consent.

{4} We granted certiorari, and now affirm the Court of Appeals in all respects regarding

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the use of declaratory judgment to test the statutory authority of EIB to issue these
automobile emissions regulations under state law. The Court of Appeals correctly applied
our holding in Smith, and we adopt the stated reasoning so well articulated in that opinion.
We agree that Smith authorizes the use of declaratory judgment in this instance to raise a
purely legal challenge to EIB’s statutory authority, and that Plaintiffs may file for
declaratory relief independent of the administrative appeal process. Accordingly, we remand
this case in its entirety to the district court to decide the issues raised in Plaintiffs’
declaratory judgment action.

{5} Having clarified our support for the Court of Appeals opinion, we write solely to
address one remaining issue pertaining to common law sovereign immunity. The Court of
Appeals stated that, “Nevertheless, declaratory judgment actions are not without limit. For
example, declaratory judgments are not permitted against the state unless the state has
specifically consented to suit or waived its sovereign immunity.” Hanosh, 2008-NMCA-
156, ¶ 6 (citing Gill v. Pub. Employees Ret. Bd., 2004-NMSC-016, 135 N.M. 472, 90 P.3d
491). We have concerns that our opinion in Gill may have been misperceived. Archaic
notions of common-law sovereign immunity were put to rest by this Court in Hicks v. State,
88 N.M. 588, 544 P.2d 1153 (1975). Nothing in Gill resurrects that vestige of the common
law. For the reasons that follow, EIB is not immune from this declaratory judgment action,
with or without its consent. Accordingly, we correct that one reference to common-law
sovereign immunity in the Court of Appeals opinion, which is otherwise affirmed in all
respects.

DISCUSSION

{6} We begin our discussion with Gill, in which this Court explored the contours of
constitutional sovereign immunity as that principle has emerged in U.S. Supreme Court
opinions over the past 15 years or so. 2004-NMSC-016, ¶¶ 5-6. See generally Erwin
Chemerinsky, The Federalism Revolution, 31 N.M. L. Rev. 7 (2001). In both Gill, 2004-
NMSC-016, ¶¶ 5-6, and its predecessor, Cockrell v. Bd. of Regents of N.M. State Univ.,
2002-NMSC-009, ¶ 14, 132 N.M. 156, 45 P.3d 876, this Court made clear that constitutional
sovereign immunity is rooted in concepts of federalism, the Eleventh Amendment, and the
compact between states and the federal government inherent in the U.S. Constitution, all of
which reserve to the states certain inherent powers of sovereignty. As a principle of
federalism, constitutional sovereign immunity circumscribes the power of the U.S. Congress
to create statutory rights and enforce them against the states absent their consent. In
Cockrell, we held that the state’s constitutional sovereign immunity, a derivative of the U.S.
Constitution, can only be waived by our state legislature and not the courts. 2002-NMSC-
009, ¶ 14.

{7} Common-law sovereign immunity on the other hand, being a creation of the common
law, is court-made law. As this Court made clear in Hicks, courts are very much able to
expand, contract, or eliminate altogether common-law sovereign immunity, subject of course
to the power of the state legislature to codify immunity in its place. 88 N.M. at 589-90, 544

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P.2d at 1154-55. Without digressing into a full-fledged discussion of the difference between
constitutional sovereign immunity and common-law sovereign immunity, it is apparent from
both Cockrell and Gill that the two are distinct in their meaning, origin, and effect.

{8} Both Gill and Cockrell arose from federal statutes that created enforceable rights
against the states; both cases asked whether the state had constitutional sovereign immunity
from suit without its consent. In Gill, the plaintiff sought to infer such consent from the New
Mexico Declaratory Judgment Act. NMSA 1978, §§ 44-6-1 to -15 (1975). Correctly, this
Court responded in the negative. Importantly, however, whatever we said in Gill, limiting
the use of declaratory judgment actions against the state without its consent, arose solely in
the context of constitutional sovereign immunity. Neither Gill nor Cockrell arose from or
had any effect upon common-law actions under state law or whether the state could be sued
at common law without its consent. Indeed, in Gill, this Court authorized a suit for
prospective injunctive or declaratory relief against state officials to vindicate federally-
created rights with or without the consent of the state.

{9} In contrast, the present action for declaratory judgment makes no claim under federal
law or asserts any right to sue the state under federal law. The present action leaves the
state’s constitutional sovereign immunity intact. The present declaratory action arises solely
under state statute, and the defense of sovereign immunity is asserted, not under federal law
or principles of federalism, but under what EIB perceives to be vestigial remains of our state
common-law sovereign immunity. Accordingly, any reliance on Gill by EIB, or by the
Court of Appeals, is clearly in error.

{10} In New Mexico, of course, common-law sovereign immunity—as opposed to
statutory immunity—has been repealed for over 30 years since this Court’s landmark
decision in Hicks. Although that case specifically challenged the state’s common-law
immunity from actions in tort, no one should doubt the broader scope of what this Court has
previously described as “Hicks’s sweeping abolition of sovereign immunity.” Torrance
County Mental Health Program, Inc. v. N.M. Health & Env’t Dep’t, 113 N.M. 593, 597, 830
P.2d 145, 149 (1992). As we said in that subsequent opinion, describing Hicks,

[t]he holding in Hicks, of course, was that the common law defense of
sovereign immunity for claims in tort against the state would no longer
(absent statutory authorization) be available, but we agree with [plaintiff] that
the case generally abolished the common law doctrine of sovereign immunity
in all its ramifications, whether in tort or contract or otherwise, except as
implemented by statute or as might otherwise be interposed by judicial
decision for sound policy reasons.

Id. (second emphasis added).

{11} Indicative of its broad scope, the Hicks opinion itself prefaced its holding by citing
to a variety of New Mexico opinions and not just cases sounding in tort. 88 N.M. at 590-91,

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544 P.2d at 1155-56. Indeed, one such declaratory judgment action cited in Hicks, Arnold
v. State, 48 N.M. 596, 154 P.2d 257 (1944), relied on an earlier case, Taos County Bd. of
Educ. v. Sedillo, 44 N.M. 300, 313, 101 P.2d 1027, 1036 (1940), in which this Court, while
limiting declaratory judgments against the state, expressly permitted their use, with or
without the state’s consent, where mandamus would otherwise lie. The present dispute, in
which Plaintiffs seek to impose upon EIB what they claim to be a clear mandatory duty to
comply with state law, would appear to fit comfortably within either mandamus or
declaratory judgment, and thus, declaratory relief against EIB would appear to be
appropriate even under the hoary common-law distinctions of 1940. See N.M. Right to
Choose/NARAL v. Johnson, 1999-NMSC-005, ¶ 23, 126 N.M. 788, 975 P.2d 841
(“Therefore, sovereign immunity does not shield the Department from appearing in court as
a defendant in this [declaratory judgment] case.”). But we need not dwell on the past. All
such common-law notions were swept aside in Hicks when this Court made clear that archaic
and medieval notions of common-law sovereign immunity (“the King can do no wrong”) no
longer serve the public interest of our state. 88 N.M. at 591, 544 P2d at 1156.

{12} Relief is appropriate for still another reason. In the event they are proven right on
the law, Plaintiffs seek to hold a state agency accountable to statutory limitations allegedly
imposed upon executive authority by the legislative branch. Such accountability goes to the
heart of constitutional separation of powers, just as it is the exclusive province of the judicial
branch to ascertain what the law is and afford appropriate relief. That relief certainly
includes, in a proper case, the judiciary’s ability to define the law and injunction to enforce
it. Anything less would encroach upon the constitutional powers reserved to the judiciary;
anything less would place state agencies above the law. Whatever immunity of this kind
executive agencies may have enjoyed in the past, belongs to the past.

CONCLUSION

{13} We affirm the Court of Appeals and remand to the district court for further
proceedings.

{14} IT IS SO ORDERED.

____________________________________
RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

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____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
CHARLES W. DANIELS, Justice

Topic Index for State of NM, ex rel Hanosh v. State of NM, ex rel King, No. 31,636

AL ADMINISTRATIVE LAW AND PROCEDURE
AL-AA Administrative Appeal
AL-JR Judicial Review
AL-LI Legislative Intent

AE APPEAL & ERROR
AE-CF Certiorari

CT CONSTITUTIONAL LAW
CT-IM Immunity
CT-SP Separation of Powers

GV GOVERNMENT
GV-SI Sovereign Immunity

JM JUDGMENT
JM-DJ Declaratory Judgment

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