New Mexico Statutes
Article 6 - Declaratory Judgments
Section 44-6-13 - State or official may be sued; construction of constitution or statute.

For the purpose of the Declaratory Judgment Act [44-6-1 to 44-6-15 NMSA 1978], the state of New Mexico, or any official thereof, may be sued and declaratory judgment entered when the rights, status or other legal relations of the parties call for a construction of the constitution of the state of New Mexico, the constitution of the United States or any of the laws of the state of New Mexico or the United States, or any statute thereof.
History: 1953 Comp., § 22-6-16, enacted by Laws 1975, ch. 340, § 13.
Cross references. — For declaratory judgment proceedings where state a party, see Rule 1-057B NMRA.
Action against the state was not barred by the eleventh amendment sovereign immunity. — Where the public education department reduced the amount of state revenues paid each month to the school district as an offset for funds received by the school district under the federal impact aid statute, 20 U.S.C. § 7709; the federal statute permitted the state to offset federal revenue as long as the state had been granted certification to do so by the federal department of education; the public education department implemented the offset before it had received federal certification; and the school district sued for reimbursement of state funds that had been offset before federal certification had been issued, the action did not violate sovereign immunity under the eleventh amendment because the basis of the action was to compel the public education department to give the school district its full share of state funds in accordance with Section 22-8-25 NMSA 1978 without reduction for federal aid. Zuni Pub. School Dist. #89 v. N.M. Pub. Educ. Dep't, 2012-NMCA-048, 277 P.3d 1252, cert. denied, 2012-NMCERT-004.
Action against the state for money damages was not barred by sovereign immunity under New Mexico law. — Where the public education department reduced the amount of state revenues paid each month to the school district as an offset for funds received by the school district under the federal impact aid statute, 20 U.S.C. § 7709; the federal statute permitted the state to offset federal revenue as long as the state had been granted certification to do so by the federal department of education; and the public education department implemented the offset before it had received federal certification, the school district's action against the public education department for monetary damages in the amount of state revenues that had been deducted before federal certification had been issued was not barred by sovereign immunity under New Mexico law. Zuni Pub. School Dist. #89 v. N.M. Pub. Educ. Dep't, 2012-NMCA-048, 277 P.3d 1252, cert. denied, 2012-NMCERT-004.
This section's predecessor was not a general consent by state to be sued. Taos County Bd. of Educ. v. Sedillo, 1940-NMSC-026, 44 N.M. 300, 101 P.2d 1027.
State's consent to sue must otherwise exist. — It could be argued that this section's predecessor was a general consent on the part of the state to be sued under its provisions. However, it has no such meaning and has no greater effect, insofar as this consideration is concerned, than merely to permit parties to sue the state under the act where the state's consent to be sued otherwise exists and the facts warrant suit. In re Bogert, 1958-NMSC-104, 64 N.M. 438, 329 P.2d 1023.
Employee's action against a State retirement board under the Age Discrimination in Employment Act, 29 U.S.C.S. § 621 et seq., was barred by the doctrine of sovereign immunity because the ADEA's abrogation of sovereign immunity was not a valid exercise of Congressional power under the Fourteenth Amendment; moreover, the New Mexico Declaratory Judgment Act, 44-6-1 to 44-6-15 NMSA 1978, did not operate to waive immunity. Gill v. Public Employees Ret. Bd., 2003-NMCA-038, 133 N.M. 345, 62 P.3d 1227, rev'd, 2004-NMSC-016, 135 N.M. 472, 90 P.3d 491.
The Declaratory Judgment Act does not have the effect of general consent to be sued; it merely permits parties to sue the state when the state's consent to be sued otherwise exists. Gill v. Public Employees Ret. Bd., 2004-NMSC-016, 135 N.M. 472, 90 P.3d 491, rev'g 2003-NMCA-038, 133 N.M. 345, 62 P.3d 1227.
And the facts must justify the suit. — Under this section's predecessor parties could sue the state only in those situations where the state's consent to be sued otherwise already existed and the facts justified the suit, and it did not provide for a general consent to be sued under the Declaratory Judgment Act. Arnold v. State, 1944-NMSC-068, 48 N.M. 596, 154 P.2d 257.
Statutes which authorize suits against state must be construed strictly and where a suit to declare a statute unconstitutional is brought against the state it must be dismissed in the absence of express statutory authority for bringing it. Arnold v. State, 1944-NMSC-068, 48 N.M. 596, 154 P.2d 257.
Where mandamus and prohibition lie declaratory judgment also issues. — Where other remedies such as mandamus or prohibition will lie against a state agency, declaratory judgment should also issue and would not be an enlargement of actions against the state. Harriett v. Lusk, 1958-NMSC-006, 63 N.M. 383, 320 P.2d 738.
Actual controversy when administrative stalemate detrimental to public interest exists. State ex rel. Maloney v. Sierra, 1970-NMSC-144, 82 N.M. 125, 477 P.2d 301.
Injured party has standing to sue under Declaratory Judgment Act on any genuine question involving the constitutionality or construction of a statute. Harriett v. Lusk, 1958-NMSC-006, 63 N.M. 383, 320 P.2d 738.
Administrative remedies must be exhausted before action lies. — Where taxpayer does not make timely application for protest before state tax commission (now property tax division) prior to seeking a declaratory judgment in the courts, it is precluded from presenting the case to the courts for review. Associated Petroleum Transp., Ltd. v. Shepard, 1949-NMSC-002, 53 N.M. 52, 201 P.2d 772.
Opinion not precedent on justiciable controversy issue if not presented. — When the jurisdiction of the court to render a declaratory judgment has not been questioned for want of a justiciable controversy, but might have been, the opinion of the supreme court is not stare decisis on the question whether such controversy is presented. Taos Cnty. Bd. of Educ. v. Sedillo, 1940-NMSC-026, 44 N.M. 300, 101 P.2d 1027.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 22A Am. Jur. 2d Declaratory Judgments §§ 68 to 70, 209, 210.
Federal question jurisdiction in declaratory judgment suit challenging state statute or regulation on grounds of federal preemption, 69 A.L.R. Fed. 753.
26 C.J.S. Declaratory Judgments §§ 44 to 47, 130.