(specially concurring and dissenting).
{28} I dissent from the proposition that we may assume without deciding that the district court had jurisdiction to entertain Plaintiffs’ declaratory judgment action. “Subject matter jurisdiction gives a court power and authority to act. Without it, the court has no power or authority to act.” Amica Mut. Ins. Co. v. McRostie, 2006-NMCA-046, ¶ 17, 139 N.M. 486, 134 P.3d 773, 2006 WL 1161392, cert. denied, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120 [No. 29,723]. However, because existing precedent leads me to conclude that the district court lacked jurisdiction, I agree with the conclusion of the majority to reverse the judgment of the district court. My reasoning follows.
{29} Smiths filed applications for well permits from the City. The City Manager denied the applications and Smiths appealed as provided in the City’s appeal process. On September 19, 2001, the City Council rendered the final decision upholding the decision of the City Manager to deny the permits. Trusts never applied for a permit.
{30} The sole method of obtaining judicial review of the City’s final administrative decision is by way of a writ of certiorari because no appeal or other mode of review is allowed or provided for the district court to review the decision of the City Council. Article VI, Section 13 of the New Mexico Constitution authorizes district courts to issue writs of certiorari to an inferior court or tribunal. “A writ of certiorari ... lies when it is shown that an inferior court or tribunal has exceeded its jurisdiction or has proceeded illegally, and no appeal or other mode of review is allowed or provided.” Rainaldi v. Pub. Employees Ret. Bd., 115 N.M. 650, 654, 857 P.2d 761, 765 (1993). Masterman v. State Taxation & Revenue Department, 1998-NMCA-126, 125 N.M. 705, 964 P.2d 869, specifically states that since the applicable statute in that case did not provide for a right to appeal the administrative decision, “a writ of certiorari provided the only mode of review.” Id. ¶ 11.
{31} Rule 1-075 governs writs of certiorari when there is no statutory right to an appeal or other statutory right of review. Under Subsection (D) of the Rule, a petition for writ of certiorari “shall” be filed in the district court within thirty days after the date of the filed decision or order of the agency. The City Council issued the final order on September 19, 2001. The deadline for filing a petition for writ of certiorari in the district court to review the administrative decision was thirty days later on October 19, 2001. No petition was filed by that date. Instead, well after the deadline expired on January 7, 2002, Smiths and Trusts filed a complaint for declaratory judgment. The complaint for declaratory judgment appears to be an attempt to circumvent the time requirement for filing a petition for writ of certiorari.
{32} I therefore respectfully submit that under well-settled precedent, the district court lacked jurisdiction to rule on the complaint for declaratory judgment. In Master-man, a “Petition for Judicial Review” was filed seeking judicial review of an administrative decision when no statutory right to appeal the administrative decision was provided for. 1998-NMCA-126, ¶¶ 1, 10, 125 N.M. 705, 964 P.2d 869. This Court analyzed the petition as a writ of certiorari. Since the petition for judicial review failed to allege the necessary jurisdictional prerequisites as provided in Rule 1-075, we held that the district court’s jurisdiction was not properly invoked and we sua sponte reversed the order of the district court on grounds it had no jurisdiction to issue the order in the first place. Masterman, 1998-NMCA-126, ¶¶ 12-14, 125 N.M. 705, 964 P.2d 869. Similarly, in City of Albuquerque v. Ryon, 106 N.M. 600, 747 P.2d 246 (1987), the City of Albuquerque failed to timely appeal a final administrative decision to the district court as provided in the applicable ordinance. Instead, “the City attempted to reach by a declaratory judgment suit what it had waived by failure to timely appeal.” Id. at 603, 747 P.2d at 249. Our Supreme Court first said that, “declaratory judgment actions are not intended to provide a substitute for other available actions.” Id. Then, our Supreme Court specifically held that since the right to appeal had expired, the time for filing a declaratory judgment likewise had expired because “declaratory judgment actions are subject to the same limitations as the nature of the action sued upon in the underlying case.” Id. In coming to this conclusion, the Supreme Court cited Taylor v. Lovelace Clinic, 78 N.M. 460, 432 P.2d 816 (1967), in which the Court affirmed dismissal of a declaratory judgment action because the statute of limitations had run on the underlying action. Id. at 461, 432 P.2d at 817. Therefore, held the Supreme Court, since the city’s right to appeal had expired, so did its right to seek a declaratory judgment to obtain the identical relief that it could have obtained in an appeal. Ryon, 106 N.M. at 603, 747 P.2d at 249. The foregoing decisions are directly applicable here.
{33} If there is a basis for concluding that the district court did have jurisdiction over the declaratory judgment action, then we should say what that basis is. The majority cites Pan American Petroleum Corp., Moriarty Municipal Schools, Grand Lodge of Ancient & Accepted Masons of New Mexico, and Taos Municipal Schools Charter School, together with Sections 44-6-2, 44-6-4, and 44-6-14, in paragraph 5 to suggest that the district court had jurisdiction. Without belaboring the point, the cases are distinguishable and do not resolve the jurisdictional question presented. The majority acknowledges this fact by not answering whether there was jurisdiction, choosing instead to assume without deciding that the district court had jurisdiction. The majority does so for the purpose of reaching the merits of the case. However, no standards are provided for determining when and under what circumstances any court, including this Court, may properly do so.
{34} The City vigorously argued in the district court and on appeal that there was no jurisdiction in the district court to hear the declaratory judgment action. However, since the majority has ruled in favor of the City on the merits, it has no incentive to seek a determination from the Supreme Court about whether the district court had jurisdiction in the first place. Therefore, the jurisdictional issue remains unresolved. This leaves the impression that our courts are able to pick and choose when they have jurisdiction over an administrative appeal depending on whether they wish to address the merits. I am unwilling to leave this impression.
{35} For the foregoing reasons, I concur only in the result reached to reverse the judgment of the district court, and I dissent from assuming without deciding that the district court had jurisdiction to entertain the declaratory judgment action. I therefore express no opinion about the merits.