Nash v. Bd. of Cnty. Comm'rs of Catron Cnty. and Belen Consol. Sch. Dist. v. Valencia Cnty.Nash v. Bd. of Cnty. Comm'rs of Catron Cnty. and Belen Consol. Sch. Dist. v. Valencia Cnty.
Case Information
*1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: October 19, 2020
No. S-1-SC-37692
GREGORY A. NASH and SUSIE K. NASH,
Plaintiffs-Petitioners,
v.
GROUP I: BOARD OF COUNTY
COMMISSIONERS
OF CATRON COUNTY, NEW
MEXICO, a political subdivision
of the State of New Mexico, and
ELENA GELLERT,
and
GROUP II: ALL UNKNOWN
CLAIMANTS OF INTEREST
IN THE PREMISES ADVERSE
TO THE PLAINTIFFS,
Defendants-Respondents.
ORIGINAL PROCEEDING ON CERTIORARI
Shannon Murdock, District Judge
And
No. S-1-SC-37778
BELEN CONSOLIDATED
SCHOOL DISTRICT,
Plaintiff-Petitioner,
v.
THE COUNTY OF VALENCIA,
Defendant-Respondent.
ORIGINAL PROCEEDING ON CERTIORARI
James Lawrence Sanchez, District Judge
Released for Publication March 2, 2021.
Turner Law Firm, LLC
Scott E. Turner
Albuquerque, NM
for Plaintiffs-Petitioners Gregory A Nash and Susie K. Nash
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Arthur D. Melendres
Zachary L. McCormick
Albuquerque, NM
for Plaintiff-Petitioner Belen Consolidated School District
Nance, Pato & Stout, LLC
Adren Robert Nance
David Matthew Pato
Socorro, NM
for Defendants-Respondents Board of County Commissioners of the County of Catron and Board of County Commissioners of the County of Valencia
OPINION
THOMSON, Justice
In a consolidated opinion, the Court of Appeals determined that New Mexico
{1}
counties generally have statutory immunity from suits to quiet title and held that “there is
no [applicable] statutory exception” to that immunity.
Belen Consol. Sch. Dist. v. Cnty. of
Valencia
,
I. BACKGROUND
{2}
The issue addressed in this opinion arises from the evolution, abolition, and
resurrection of governmental immunity in New Mexico. In 1958, this Court recognized
that common law sovereign immunity protects the state and its political subdivisions
from being named in an action to quiet title “to extinguish the state’s fee simple title in
the property.”
Maes v. Old Lincoln Cnty. Mem’l Comm’n
,
Court applied in actions to quiet title existed until 1978, when this Court explicitly
acknowledged the abolition of the doctrine’s application in New Mexico.
Brosseau v.
N.M. State Highway Dep’t
,
{4} In the following year, the Legislature statutorily resurrected governmental immunity in actions concerning real property. See 1979 N.M. Laws, ch. 110, § 1 (codified as NMSA 1978, § 42-11-1 (1979)). That enactment prohibited naming the State as “a defendant in any suit, action, case or legal proceeding involving a claim of title to or interest in real property except as specifically authorized by law.” Id. Regardless of the Court’s abolition of common law sovereign immunity and the Legislature’s imposition of statutory governmental immunity, Section 42-6-12 was not repealed or amended. Although application of sovereign immunity can produce inequitable results, we will not judicially repeal an immunity that the Legislature lawfully created unless such immunity violates the United States or the New Mexico Constitution. With this context in mind, we turn to the factual and procedural background for
each case, which we present separately.
A. The Valencia County Case
1NMSA 1978, Section 42-6-12 (1947), was formerly compiled as NMSA 1941, Section 25-1312 (1947),
NMSA 1953, § 22-14-12 (1947), and finally as Section 42-6-12.
Belen
,
it holds the title, in order to “fund school activities” and initiated an action to quiet title in order to obtain marketable title. Belen initiated a quiet title action to remove the cloud on the title to the property and named the Board of County Commissioners of Valencia County (Valencia) along with other persons, governmental entities, and nongovernmental entities as defendants. In its complaint, Belen described the property and alleged that Valencia “claimed an interest in the property and sought conveyance of the property to [Valencia]” in 2010. Instead of answering and asserting it had superior title to the property, Valencia
{8} moved the district court to dismiss the complaint. Although it avoided directly claiming any title to the subject property, Valencia’s motion asserted an interest in the property.
Notwithstanding [Belen’s] vague reference to [Valencia] County’s interest, the County has for decades and continues to maintain the real property as a park and sports facility for the benefit of the youth of the County. The County has continuously expended funds and man-hours to provide for improvements, fencing and maintenance. [Valencia] desires that the real property continue to be utilized as a park for the County’s youth. [2]
Regardless of who claims or has superior title, Valencia argued that Section 42-11-1 prohibited naming Valencia as a defendant in an action to quiet title because it was a political subdivision of the State. [3] Belen responded that Section 42-6-12 waives statutory immunity created by
Section 42-11-1. Belen argued that because abolished common law sovereign immunity, the limited waiver established by Section 42-6-12 should be broadened to permit quiet title suits against the State and its political subdivisions. Belen also requested that, if the district court was inclined to dismiss its claim based on immunity, Belen be allowed to amend its complaint to “assert a claim for inverse condemnation.” At the hearing on its motion to dismiss, Valencia argued that Section 42-11-1
granted Valencia broad immunity and that the limited waiver of immunity in Section 42-
6-12 did not apply in this case. Valencia also argued that allowing Belen to amend the
complaint to assert a claim for inverse condemnation would be futile because Belen was
now barred from bringing any claim by the three-year statute of limitations.
See
NMSA
2Valencia also moved for dismissal based on an argument that Belen’s complaint did not state Valencia’s
claim of interest “with sufficient factual detail to give [Valencia] reasonable notice of the basis of the
claim.” The Court of Appeals did not address this argument, and Valencia did not pursue this argument
before this Court, and so we consider the argument abandoned.
Elane Photography, LLC v. Willock
,
3Belen’s complaint describes the property in question as “Tracts 38-A-1-B and 40-A-1, as shown on Map 114 of the Surveys of the Middle Rio Grande Conservancy District.” We observe that although the property is classified as tax-exempt, according to online records of the Valencia County Assessor, the property’s taxable value is assessed, with Belen shown as owner of the property.
1978, § 42A-1-31(B) (1981) (establishing a three-year statute of limitations “from the date of the taking or damaging”). Regardless of whether it had title to the property, Valencia’s position was that it has the right to use the property without initiating a condemnation action and without providing compensation. This position clearly frustrated the district court. As a result, in denying Valencia’s motion to dismiss, the district court colorfully, but perhaps not entirely inaccurately, opined that Valencia’s position amounted to “tyranny[,] for the government to say we’re the government, you have no rights and you can’t even challenge us in court.” [4] Valencia petitioned the Court of Appeals for a Writ of Error pursuant to Rule 12-
503 NMRA. The Court of Appeals reversed the district court, determined that the governmental immunity created by Section 42-11-1 barred quieting title against Valencia and that there was no applicable statutory waiver, and remanded the Valencia case “for entry of an order dismissing the action against Valencia.” Belen , 2019-NMCA- 044, ¶¶ 1, 14. Belen petitioned this Court for certiorari.
B. The Catron County Case Gregory A. Nash and Susie K. Nash (collectively “Nash”) filed a complaint to
quiet title to real property and named the Board of County Commissioners of Catron
County (Catron) as one of a number of defendants, who “may claim an [adverse]
interest in the Property.” The complaint alleged that Catron “may claim an interest in the
Property pursuant to that certain Warranty Deed recorded in the Office of the County
Clerk for Catron County, on October 9, 1968, in Book #2, at Page 52,” and that Catron
“may not agree with the location of the boundary line” between their respective
properties. In response, Catron filed a motion to dismiss “pursuant to Rule 1-012
NMRA” based on the immunity created by Section 42-11-1 and stated, “Notwithstanding
[Nash’s] vague reference to [Catron’s] interest, [Catron] has for decades and continues
to maintain the real property as part of its courthouse complex.”
[5]
Catron acknowledged that this Court abolished the practice of applying the
common law doctrine of sovereign immunity in actions to quiet title. Nevertheless, like
Valencia, Catron argued that Section 42-11-1 reestablished a broad grant of
governmental immunity in response to the Court’s abolition of common law
4We observe that other governments have recognized the benefit of permitting an action to quiet title
against the government. In England, although the common law recognized the doctrine of sovereign
immunity, the sovereign was nonetheless subject to the “petition of right” which permitted quieting title
against the sovereign.
See United States v. Lee
,
5Catron also initially argued that dismissal was proper because the complaint was not properly served. However, prior to the hearing on the motion to dismiss, Catron withdrew improper service as a basis for dismissal of the complaint.
sovereign immunity. Catron consequently concluded that Section 42-11-1 prohibited naming it as a defendant in this case.
{14} Nash responded, as Belen had, that following Brosseau , Section 42-6-12 should be construed as a broad waiver of immunity that permits quieting title against Catron. Nash argued alternatively that even if Section 42-6-12 remains as a limited waiver of immunity, due process prohibits applying immunity to bar naming Catron as a defendant in this action to quiet title.
{15} Catron responded to Nash’s due process argument by asserting that constitutional due process was satisfied because Nash had a remedy: “inverse condemnation.” Catron argued that inverse condemnation was Nash’s exclusive remedy to satisfy due process, regardless of whether Nash failed to exercise that exclusive remedy within the three-year statute of limitations. The district court stated that it believed that Section 42-6-12 and Section 42-11-1
were “in conflict,” but granted Catron’s motion to dismiss, reluctantly observing that although it was “disturbing sometimes to think that the county can just come in and take somebody’s property . . . it sounds like there are other remedies . . . that could have happened in this case.” The Court of Appeals affirmed the district court. Belen , 2019- NMCA-044, ¶¶ 1, 14. Nash petitioned this Court for certiorari.
II. ANALYSIS “The well-being of every community requires that the title to real estate therein
shall be secure, and that there be convenient and certain methods of determining any
unsettled questions respecting it.”
Arndt v. Griggs
,
the respective district courts. Valencia and Catron argue that the State lawfully
exercised its power to regulate property when it enacted Section 42-11-1 in response to
the
Brosseau
Court’s abolition of the judicially created doctrine of sovereign immunity.
Belen and Nash argue that this Court should apply
Brosseau
to broadly construe
Section 42-6-12 to allow a plaintiff to quiet title against the State and its political
subdivisions because the public interest requires “that such clouds be removed in order
that land be put to its full potential use.”
Brosseau
,
{19} Although it appears that title to the respective properties may have been clouded by Valencia and Catron, unless the immunity created by statute violates the constitution, the Legislature has lawfully acted within its power to regulate the tenure of property within New Mexico. Regarding Nash’s and Belen’s constitutional argument, neither party fully developed a constitutional claim. We therefore decline to address their due process argument in this opinion.
A. Standard of Review
{20}
“We review de novo a district court’s order granting or denying a motion to
dismiss under Rule 1-012(B)(6) NMRA” for the failure to state a legally viable claim.
State Engineer of N.M. v. Diamond K Bar Ranch, LLC
,
B. The Legislature Lawfully Imposed Statutory Governmental Immunity in
Actions to Quiet Title
“In
Hicks v. State
,
the
Brosseau
Court explicitly acknowledged the abolition as it pertained to actions to
quiet title. The
Brosseau
Court observed that “the doctrine of sovereign immunity was
an out-moded, archaic doctrine” and that “[t]here are presently in New Mexico no
conditions or circumstances which could rationally support the doctrine of sovereign
immunity.”
1. The Legislature reacted to the abolition of common law sovereign immunity
and imposed a broad grant of statutory immunity
{24}
Less than three months after the holding of
Brosseau
was announced, the
Legislature in its next session enacted a new law entitled: “RELATING TO
GOVERNMENTAL IMMUNITY; GRANTING IMMUNITY FROM CERTAIN SUITS,
ACTIONS, CASES OR LEGAL PROCEEDINGS INVOLVING REAL PROPERTY;
PROVIDING EXCEPTIONS.”
See
1979 N.M. Laws, ch. 110, § 1. This law was codified
under Article VI (“Quieting Title”) as Section 42-11-1 (“Granting immunity; providing for
exceptions”). We presume that the enactment of Chapter 110, Section 1 of New Mexico
Laws of 1979 was a reaction to .
See State v. Chavez
,
{25} broad immunity to the State and its political subdivisions.
The state of New Mexico and its political subdivisions or any of their branches, agencies, departments, boards, commissions, instrumentalities or institutions are granted immunity from and may not be named a defendant in any suit, action, case or legal proceeding involving a claim of title to or interest in real property except as specifically authorized by law . Section 42-11-1 (emphasis added). We observe that by including the term “any” the Legislature enacted a broad
grant of immunity. We also observe that by including the phrase “except as specifically
authorized by law” the Legislature recognized that the waiver in Section 42-6-12, which
was not repealed, now applies to the immunity created by Section 42-11-1.
See Noice
v. BNSF Ry. Co.
,
of that waiver.
2.
The Legislature intended Section 42-6-12 to be a limited waiver
As previously stated, since 1958 this Court has recognized that the scope of the
Section 42-6-12 waiver is limited to “aiding a mortgagee who discovers that the State
has acquired an interest in the mortgaged property and [who] is unable to pass a
*9
marketable title to the purchaser at a foreclosure sale.”
Maes
,
intent of the Legislature. It is the high duty and responsibility of the judicial branch of
government to facilitate and promote the legislature’s accomplishment of its purpose.”
State v. Smith
,
Upon the conditions herein prescribed for the protection of the state of New Mexico, the consent of the state is given to be named a party in any suit which is now pending or which may hereafter be brought in any court of competent jurisdiction of the state to quiet title to or for the foreclosure of a mortgage or other lien upon real estate or personal property, for the purpose of securing an adjudication touching any mortgage or other lien the state may have or claim on the premises or personal property involved.
Reviewing the plain language, we cannot say that it manifests a clear, singular
construction. Depending on how a reader interprets the arrangement of the words,
Section 42-6-12 could be construed to be (1) a broad waiver of immunity for the
purpose of ascertaining title
and
the purpose of adjudicating foreclosure of a mortgage
or other lien or (2) a narrow waiver of immunity “for the limited purpose of aiding a
mortgagee who discovers that the State has acquired an interest in the mortgaged
property and [who] is unable to pass a marketable title to the purchaser at a foreclosure
sale.”
Maes
,
added a heading to Section 42-6-12 that states, “Consent of state in quiet title and
foreclosure suits,” which could be read to suggest that the Legislature waived statutory
immunity in two types of suits: actions to quiet title and foreclosure actions. However,
we have previously stated that “[a]ny editorial comment or headnote by the compiler of
a compilation statute is not part of the law.”
Miller v. Doe
,
titled,
AN ACT GIVING THE CONSENT OF THE STATE OF NEW MEXICO TO BE SUED RESPECTING THE ADJUDICATION OR FORECLOSURE OF ANY LIEN AGAINST REAL OR PERSONAL PROPERTY AGAINST WHICH THE STATE HOLDS OR CLAIMS A LIEN; PROVIDING THE PROCEDURE THEREFOR AND THE NATURE OF THE RELIEF THAT MAY BE GRANTED.
This title clarifies the legislative intent to create a limited waiver of immunity, which is to
say consent of the state to be named in a lawsuit where the state holds or claims a lien
against real or personal property and where that lien is being adjudicated or foreclosed.
The full title of the enrolled and engrossed bill was included as an annotation
when the law was originally codified in Volume 2 of the 1951 supplement to the 1941
compilation of the New Mexico Statutes Annotated.
See
NMSA 1941, § 25-1312 (1947).
That annotation was likewise included without alteration or amendment when the statute
was recompiled.
See
NMSA 1953, § 22-14-12 (1947). Although the
Maes
Court did not
directly comment on the title of the enrolled and engrossed bill, it specifically determined
that the statute did not include actions “to extinguish the state’s fee-simple title.”
See
{34}
Although specifically acknowledged the abolition of common law
sovereign immunity as applied to actions to quiet title,
Brosseau
did not alter the
Legislature’s intent for Section 42-6-12 to create a limited waiver of immunity.
See
C. We Decline to Address the Undeveloped Constitutional Argument
A state “has control over property within its limits; the condition of ownership of
real estate therein . . . is subject[] . . . to obligations, private or public, and the modes of
establishing titles thereto.”
Arndt
,
violated if neither can assert a claim to quiet title against the respective county. Both procedural and substantive concerns can arise in a due process claim. Bounds , 2013- NMSC-037, ¶ 50. “Procedural due process requires the government to give notice and an opportunity to be heard before depriving an individual of liberty or property.” Id. (internal quotation marks and citation omitted). “Substantive due process cases inquire whether a statute or government action shocks the conscience or interferes with rights implicit in the concept of ordered liberty.” Id. (internal quotation marks and citation omitted). However, “[t]he threshold question in evaluating a due process challenge is whether there is a deprivation of liberty or property .” Id. ¶ 51 (alteration in original) (emphasis added) (internal quotation marks and citation omitted). Neither Nash nor Belen established an actual deprivation of property. Assuming that Nash’s or Belen’s property was “taken or injured,” neither appears
to have timely asserted a claim for inverse condemnation, which is the proper and
exclusive remedy.
Mesich v. Bd. of Cnty. Comm’rs of McKinley Cnty.
, 1942-NMSC-
054, ¶ 15,
undeveloped due process argument. Belen contended that it might be unable to assert
an inverse condemnation claim against Valencia because (1) Belen’s property, as public
land, might not be subject to constitutional protection from takings and (2) Belen may
not be a “person” authorized to bring a claim under the Eminent Domain Code, NMSA
1978, §§ 42A-1-1 to -34 (1981, as amended through 2001). We are not convinced and
note that
United States v. 50 Acres of Land
,
of right” was used as “a practical and efficient remedy for the invasion by the sovereign
power of individual rights,” we do not adjudge the wisdom of the Legislature’s choice to
create governmental immunity from being named a defendant in actions to quiet title.
Lee
,
III. CONCLUSION Based on the foregoing, we affirm the Court of Appeals.
{42} IT IS SO ORDERED.
DAVID K. THOMSON, Justice
WE CONCUR:
MICHAEL E. VIGIL, Chief Justice
BARBARA J. VIGIL, Justice
C. SHANNON BACON, Justice