IN THE COURT OF APPEALS STATE OF NEW MEXICO

1 Opinion Number: __________________ 2 Filing Date: August 30, 2018 3
NO. A
- 1
- CA
- 35 762 4
MELINDA L. WOLINSKY , 5
Plaintiff

- Appell ant , 6

v. 7
NEW MEXICO CORRECTIONS 8 DEPARTMENT , 9
Defendant

- Appell ee
. 10
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 11 Francis J. Matthew , District Judge 12
Daniel M

. Faber 13 Albuquerque, NM 14 for Appellant 15 Keleher & McLeod, P.A. 16 Zachary R. Cormier 17 Sean Olivas 18 Albuquerque, NM 19 for Appellee 20OPINION

1 FRENCH , Judge. 2

{1} This case requires this Court to resolve whether the Fair Pay for Women Act 3 (the FPWA) provides state employees the same right to pursue sex

- based wage 4 discrimination claims that persons employed by private employers possess. We 5 answer this question affirmatively, and therefore reverse the order of the district 6 court dismissing Plaintiff’s case. 7
BACKGROUND 8

{ 2 } Melinda Wolinsky (Plaintiff) sued her employer, the New Mexico 9 Corrections Department (Defendant), for sex

- based pay discrimination in violation 10 of the FPWA. She alleged that her salary was approximately $8,000 less than that 11 of a male employee also employed as a “Lawyer

- A” in Defendant’s Office of 12
General Counsel. Defendant moved to dismiss under Rule 1

- 012(B)( 1 ) NMRA and 13
Rule 1

- 012(B)( 6 ) NMRA . Defendant first argued tha t the FPWA does not apply to 14 Defendant because, in providing a cause of action against an employer, the FPWA 15 does not define “employer” to include the s tate and its agencies. Defendant 16 contrasted the language of the FPWA with that of other employm ent

- relat ed 17 statutes, such as the New Mexico Human Rights Act ( the NM HRA), wherein the 18 definition of “employer” expressly includes the s tate. 192

See NMSA 1978, § 28

- 1

- 2 (A) , (B) (2007)

. Second, Defendant argued that the 1 “general grant of immunity ” in the Tort Claims Act (the TCA) applies. See NMSA 2 1978, § 41

- 4

- 4(A) ( 2001 ) (stating that “[a] governmental entity and any public 3 employee while acting within the scope of duty are granted immunity from liability 4 for any tort ” except as waived by the provisions of the TCA and other named 5 statutes). The district court granted Defendant’s motion to dism iss, concluding that 6 Defendant is not subject to the FPWA. 7
DISCUSSION 8
A. S tandard of Review 9

{ 3 } Dismissals for lack of subject matter jurisdiction pursuant to Rule 1

- 10 012(B)(1) based on Defendant ’s claim of sovereign immunity and for failure to 11 state a claim upon which relief can be granted pursuant to Rule 1

- 012(B)(6) are 12
reviewed de novo. Ping Lu v. Educ. Tr. Bd. of N

. M

. , 2013

- NMCA

- 010, ¶ 7 , 293 13 P.3d 186; Moriarty Mun . Schs

. v. Pub. Schs

. Ins. Auth. , 2001

- NMCA

- 096, ¶ ¶ 5 , 17 14 131 N.M. 180, 34 P.3d 124

. T his appeal also involves interpretation of the FPWA. 15 “Statutory interpretation is an issue of law, which we review de novo.” N.M. Indus. 16 Energy Consumers v. N.M. Pub. Regulation Comm’n , 2007

- NMSC

- 053, ¶ 19 , 142 17 N.M. 533, 168 P.3d 105 . We address Defendant’s argument that Plaintiff’s claim is 18 barred by sovereign immunity and then turn our attention to th e FPWA itself

. 193

B. Common L aw S overeign I mmunity H as B een A bolished in New Mexico 1

{ 4 } In Hicks v. State , the New Mexico Supreme Court abolished common law 2 sovereign immunity for tort actions. 1975

- NMSC

- 056, ¶ 9 , 88 N.M. 588, 544 P.2d 3
1153 ( stating that “[c] ommon law sovereign immunity may no longer be 4 interposed as a defense by the [s] tate, or any of its political subdivisions, in tort 5 actions”) , superseded by statute as stated in Upton v. Clovis Mun. Sch. Dist. , 2006

- 6
NMSC

- 040, ¶ 8, 140 N.M. 205, 141 P.3d 1259 ; see Hydro Conduit Corp. v. 7
Kemble , 1990

- NMSC

- 061, ¶ 13 , 110 N.M. 173 , 793 P. 2 d 855 ( recognizing the 8 abolishment of the common law doctrine of sovereign immunity ); Lucero v. 9 Richardson & Richardson, Inc. , 2002

- NMCA

- 013, ¶ 7 , 13 1 N.M. 522, 39 P.3d 739 10 (“The legal landscape changed in 1975, however, when our Supreme Court 11 abolished common law sovereign immunity [

. ] ”). In Hicks , our Supreme Court 12 concluded that, in the context of tort claims, sovereign immunity was “causing a 13

gre at degree of injustice [ , ] ” to such an extent that it rendered the doctrine 14 unjustifiable. 1975

- NMSC

- 056, ¶ 10. 15

{ 5 } In response to Hicks , the Legislature enacted the TCA the following year. 16
See NMSA 1978, §§ 41

- 4

- 1 to

- 27 (1976, as amended through 2015) ; Smith v. Vill. 17 of Corrales , 1985

- NMCA

- 121, ¶ 5 , 103 N.M. 734, 713 P.2d 4 (describing the 18 enactment of the TCA as a response to the decision in Hicks ) . The TCA expressly 19
reinstated the s tate’s sovereign imm unity for tort claims, but then expressly waived 204

im munity in several specifically enumerated circumstances. See §§ 41

- 4

- 5 to

- 12; 1
Smith , 1985

- NMCA

- 121, ¶ 5; see also Upton , 2006

- NMSC

- 040, ¶ 8 (“The TCA 2 grants all government entities and their employees general immunity from actions 3 in tort, but waives that immunity in certain specified circumstances.”). 4

{ 6 } The same year that it enacted the TCA , the L egislature enacted another 5 statute addressing the s tate’s liability for contract claims. See NMSA 1978, § 37

- 1

- 6 23 (1976); Hydro Conduit Corp. , 1990

- NMSC

- 061, ¶ 13. Section 37

- 1

- 23 (A) 7 grants immunity to the s ta te in actions based on contract except for claims based 8 upon a valid, written contract. S ee Hydro Conduit Corp. , 1990

- NMSC

- 061, ¶ 17 9 (explaining that the legislative history of the st atute indicates that the purpose of 10 enacting Section 37

- 1

- 23 “was to reinstate the sovereign immunity which had been 11 abolished by Hicks

. . . , subject to certain exceptions [ , ] ” including “the acceptance 12 of liability for claims based on valid written contr acts”). 13

{ 7 } Our Supreme Court has since read Hicks as “generally abolish[ing] the 14 common law doctrine of sovereign immunity in all its ramifications , whether in 15 tort or contract or otherwise[.]” Torrance Cty. Mental Health Program v. N.M. 16 Health and Env’t Dep’t , 1992

- NMSC

- 026, ¶ 14 , 113 N.M. 593, 830 P.2d 145 17 (emphasis added); see also State ex rel. Hanosh v. State ex rel. King , 2009

- NMSC

18 047, ¶ 10 , 147 N.M. 87, 217 P.3d 100 (“Although [ Hicks ] specificall y challenged 19
the state’s common [] law immunity from actions in tort, no one should doubt the 205

broader scope of what this Cou rt has previously described as Hicks’s sweeping 1
abolition of sovereign immunity.”) (internal quotation marks and citations 2 omitted) ; Methola v. C ty. of Eddy , 1980

- NMSC

- 145, ¶ 9 , 95 N.M. 329, 622 P.2d 3
234 (describing the holding in Hicks broadly as abolishing judicially recognized 4 sovereign immunity in New Mexico). The breadth of Hicks is bolstered by the fact 5 that the “opinion itself pr efaced its holding by citing to a variety of New Mexico 6 opinions and not just cases sounding in tort. ” Hanosh , 2009

- NMSC

- 047, ¶ 11. 7

{ 8 } Thus, the existence and extent of the state ’s immunity post

- Hicks now 8 depends upon the Legislature. “The common law now recognizes a constitutionally 9 valid statutory imposition of sovereign immunity, and such immunity must be 10 honored by the courts where the [L]egislature has so mandated.” Torrance Cty. , 11
1992

- NMSC

- 026, ¶ 16 ( alteration, internal quotation marks , and citatio n omitted); 12

see e. g. Hydro Conduit Corp. , 1990

- NMSC

- 061 , ¶ 22 (holding that a claim ag ainst 13
the s tate for restitution based on unjust enrichment was barred by sovereign 14 immunity as reinstated by Section 37

- 1

- 23). The availability of the s tate’s defense 15 of sovereign immunity does not depend on whether the Legislature provided a 16
waiver of immunity within a statute. Rather, the s tate may defend a suit based on 17 sovereign immunity only insofar as the Legislature has invoked immunity within or 18

o therwise in connection with the statute under which the plaintiff brings its suit 19 against the s ta te

. See Torrance Cty

. , 1992

- NMSC

- 026, ¶ 23

. S overeign immunity 206

now exists only “as implemented by statute or as might otherwise be interposed by 1 judicial decis ion for sound policy reasons.” Id. ¶ 14; see also Hanosh , 2009

- 2
NMSC

- 047, ¶ 7 (discussing Hicks and noting that “courts are very much able to 3 expand, contract, or eliminate altogether common [] law sovereign immunity, 4 subject of course to the power of the sta te legislature to codify immunity in its 5 place ”) (emphasis added); Smith , 1985

- NMCA

- 121, ¶ 5 (“In New Mexico, 6 sovereign immunity is a statutory creation.”); Marrujo v. N

. M

. State Highway 7 Transp. Dep’t , 1994

- NMSC

- 116, ¶ 24 , 118 N.M. 753, 887 P.2d 747 (“The right to 8 sue the government is a statutory right and the [L] egislature can reasonably restrict 9 that right.”). 10
C. The FPWA 11

{ 9 } Plaintiff’s claim here arises solely under one state statut e: the FPWA. 12
Defendant asserts sovereign immunity, “not under federal law or principles of 13 federalism,” but “under what [ Defendant ] perceives to be vestigial remains of our 14

state common [] law sovereign immunity.” Hanosh , 2009

- NMSC

- 047, ¶ 9. 15 However, common law sovereign immunity no longer exists. Therefore, we must 16
determine wh ether the Legislature invoked the s tate’s sovereign immunity in the 17 FPWA. Alternatively, even in the absence of an express statutory invocation, we 18 must determine whether the Legislature intended the s tate t o be subject to the 197

statute. See Lucero , 2002

- NMCA

- 013, ¶¶ 3, 7, 9 (recognizing the need to 1 determine whether a statutory cause of action applies to government entities). 2
1. The FPWA D oes N ot E xpressly I nvoke S overeign I mmunity 3

{ 10 } When the Legislature invokes the s tate’s sovereign immunity, it does so 4 expressly. Other statutes that invoke the s tate’s sovereign immunity

— namely, the 5
TCA and Section 37

- 1

- 23

— demonstrate a clear invocation of immunity. The TCA 6 straightforwardly provides that “[a] government al entity and any public employee 7 while acting within the scope of duty are granted immunity from liability for any 8
tort.” Section 41

- 4

- 4(A). Similarly, in Section 37

- 1

- 23 (A) , the Legislature clearly 9
invokes the s tate’s immunity for con tract claims by stating that “[g]overnmental 10 entities are granted immunity from actions based on contract [

. ] ” The FPWA does 11 not contain any similar language, and it does not refer to sovereign immunity at all. 12
See NMSA 1978, §§ 28

- 23

- 1 to

- 6 (2013) (lackin g language addressing the s tate’s 13 immunity from suits alleging violation of the conduct prohibited). We therefore 14
conclude that Defendant has no sovereign immunity from liability under the TCA 15 or the FPWA. We next examine the language of the FPWA to determ ine whether 16 the Legislature intended the s tate to be a liable party. 17
2. The State I s an “ E mployer” S ubject to C laims B rought U nder the 18 FPWA by P ublic E mployees 19

{ 1 1 } The FPWA prohibits an “ employer ” from discriminating between employees 20 on the basis of sex by paying wages to employees at a rate less than the rate that 218

the employer pays wages to employees of the opposite sex for equal work. Section 1
28

- 23

- 3(A). The FPWA defines “employer” as “a person employing four or more 2 employees and any person acting for an employer.” Section 28

- 23

- 2(E). The 3 FPWA does not, however, define “person.” 4

{ 1 2 } In the absence of contradictory language in the FPWA, the provisions of the 5 Uniform Statute and Rule Construction Act (the USRCA) apply. See NMSA 1978, 6 § 12

- 2A

- 1(B) (1997)

. “The [USRCA] applies to a statute enacted or rule adopted 7
on or after the effective date of that act unless the statute or rule expressly provides 8 otherwise, the context of its language requires otherwise[,] or the application of 9
that act to the statute or rule would be infeasible.” Id. The Legislature enacted the 10 FPWA sixteen years afte r the passage of the USRCA. Section 28

- 23

- 1; Section 12

- 11
2A

- 1. The FPWA does not provide that the USRCA does not apply; the context of 12 the FPWA does not require that the USRCA does not apply; and the application of 13
the USRCA to the FPWA is feasible . Therefo re, the USRCA supplies the meaning 14
of terms not defined in the FPWA. 15

{ 1 3 } The USRCA defines “person” as “ an individual, corporation, business trust, 16
estate, trust, partnership, limited liability company, association, joint venture or 17 any legal or commerci al entity [

. ] ” NMSA 1978, Section 12

- 2A

- 3(E) (1997) . A 18

“ legal entity ” is “[a] body, other than a natural person, that can function legally, 19 sue or be sued, and make decisions through agents.” Black’s Law Dictionary 1031 209

(10th ed. 2014). The s tate, an entity capable of suing and being sued, is, therefore, 1 a legal entity that falls within the definition of “person” and thus is subject to suit 2 for violating the terms of the FPWA. See , e.g. , NMSA 1978, § 10

- 16C

- 4 (2010) 3 (providing a cause of action against the s tate); State v. Davisson , 1923

- NMSC

- 045, 4 ¶ 11, 28 N.M. 653, 217 P. 240 ( explaining that the board of county commissioners 5 is entitled to sue for sums due to the county). 6

{ 1 4 } Finally, we address Defendant’s argument that the Legislature must not have 7 intended the USRCA’s definition of “person” to include the s tate because the 8 USRCA separately defines “state.” See § 12

- 2A

- 3 (E), (M). Defendant reasons that 9 if “person” included th e s tate, there would have been no need to provide a 10 definition for “state.” We are not persuaded by this argument. The USRCA defines 11 “state” as “a state of the United States, the District of Columbia, the 12 Commonwealth of Puerto Rico or any territory or ins ular possession subject to the 13 jurisdiction of the United States.” Id. All items within the definition of “state” are 14 geographic locations. Section 12

- 2(A)

- 3(M). The items within the definition of 15 “person” are different in kind; all but one of the items in the definition is a body or 16 an entity created by law. As a result, the definition of “state” is not superfluous. It 17 simply defines the geographic locations that are included by use of the term “state” 18 on its own in a statute, whether or not the statute al so uses the term “person.” 1910

CONCLUSION 1

{ 1 5 } We conclude that the Legislature intended for the state to be subject to 2 claims brought under the FPWA and we reverse the order of the district court 3 granting Defendant’s motion to dismiss. 4

{ 1 6 } IT IS SO ORDERED.

__________________________ _ 5 STEPHEN G. FRENCH , Judge 6
WE CONCUR: 7

___________________________________ 8 M. MONICA ZAMORA , Judge 9

___________________________________ 10 HENRY M. BOHNHOFF , Judge 11