1 IN THE COURT OF APPEALS STATE OF NEW MEXICO

2 Opinion Number: __________________

3 Filing Date: August 30, 2018

4 NO. A-1-CA-35762

5 MELINDA L. WOLINSKY,

6 Plaintiff-Appellant,

7 v.

8 NEW MEXICO CORRECTIONS

9 DEPARTMENT,

10 Defendant-Appellee.

11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

12 Francis J. Matthew, District Judge

13 Daniel M. Faber

14 Albuquerque, NM 

15 for Appellant

16 Keleher & McLeod, P.A.

17 Zachary R. Cormier

18 Sean Olivas

19 Albuquerque, NM 

20 for Appellee
1 OPINION

2 FRENCH, Judge.

3 {1} This case requires this Court to resolve whether the Fair Pay for Women Act 

4 (the FPWA) provides state employees the same right to pursue sex-based wage 

5 discrimination claims that persons employed by private employers possess. We 

6 answer this question affirmatively, and therefore reverse the order of the district 

7 court dismissing Plaintiff’s case.

8 BACKGROUND

9 {2} Melinda Wolinsky (Plaintiff) sued her employer, the New Mexico 

10 Corrections Department (Defendant), for sex-based pay discrimination in violation 

11 of the FPWA. She alleged that her salary was approximately $8,000 less than that 

12 of a male employee also employed as a “Lawyer-A” in Defendant’s Office of 

13 General Counsel. Defendant moved to dismiss under Rule 1-012(B)(1) NMRA and 

14 Rule 1-012(B)(6) NMRA. Defendant first argued that the FPWA does not apply to 

15 Defendant because, in providing a cause of action against an employer, the FPWA 

16 does not define “employer” to include the state and its agencies. Defendant 

17 contrasted the language of the FPWA with that of other employment-related 

18 statutes, such as the New Mexico Human Rights Act (the NMHRA), wherein the 

19 definition of “employer” expressly includes the state.
2

1 See NMSA 1978, § 28-1-2(A), (B) (2007). Second, Defendant argued that the 

2 “general grant of immunity” in the Tort Claims Act (the TCA) applies. See NMSA 

3 1978, § 41-4-4(A) (2001) (stating that “[a] governmental entity and any public 

4 employee while acting within the scope of duty are granted immunity from liability 

5 for any tort” except as waived by the provisions of the TCA and other named 

6 statutes). The district court granted Defendant’s motion to dismiss, concluding that 

7 Defendant is not subject to the FPWA. 

8 DISCUSSION

9 A. Standard of Review

10 {3} Dismissals for lack of subject matter jurisdiction pursuant to Rule 1-

11 012(B)(1) based on Defendant’s claim of sovereign immunity and for failure to 

12 state a claim upon which relief can be granted pursuant to Rule 1-012(B)(6) are 

13 reviewed de novo. Ping Lu v. Educ. Tr. Bd. of N.M., 2013-NMCA-010, ¶ 7, 293 

14 P.3d 186; Moriarty Mun. Schs. v. Pub. Schs. Ins. Auth., 2001-NMCA-096, ¶¶ 5, 17

15 131 N.M. 180, 34 P.3d 124. This appeal also involves interpretation of the FPWA. 

16 “Statutory interpretation is an issue of law, which we review de novo.” N.M. Indus. 

17 Energy Consumers v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 19, 142 

18 N.M. 533, 168 P.3d 105. We address Defendant’s argument that Plaintiff’s claim is 

19 barred by sovereign immunity and then turn our attention to the FPWA itself.
3

1 B. Common Law Sovereign Immunity Has Been Abolished in New Mexico

2 {4} In Hicks v. State, the New Mexico Supreme Court abolished common law

3 sovereign immunity for tort actions. 1975-NMSC-056, ¶ 9, 88 N.M. 588, 544 P.2d 

4 1153 (stating that “[c]ommon law sovereign immunity may no longer be 

5 interposed as a defense by the [s]tate, or any of its political subdivisions, in tort 

6 actions”), superseded by statute as stated in Upton v. Clovis Mun. Sch. Dist., 2006-

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

8 Kemble, 1990-NMSC-061, ¶ 13, 110 N.M. 173, 793 P.2d 855 (recognizing the 

9 abolishment of the common law doctrine of sovereign immunity); Lucero v. 

10 Richardson & Richardson, Inc., 2002-NMCA-013, ¶ 7, 131 N.M. 522, 39 P.3d 739

11 (“The legal landscape changed in 1975, however, when our Supreme Court 

12 abolished common law sovereign immunity[.]”). In Hicks, our Supreme Court 

13 concluded that, in the context of tort claims, sovereign immunity was “causing a 

14 great degree of injustice[,]” to such an extent that it rendered the doctrine 

15 unjustifiable. 1975-NMSC-056, ¶ 10. 

16 {5} In response to Hicks, the Legislature enacted the TCA the following year. 

17 See NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2015); Smith v. Vill. 

18 of Corrales, 1985-NMCA-121, ¶ 5, 103 N.M. 734, 713 P.2d 4 (describing the 

19 enactment of the TCA as a response to the decision in Hicks). The TCA expressly 

20 reinstated the state’s sovereign immunity for tort claims, but then expressly waived 
4

1 immunity in several specifically enumerated circumstances. See §§ 41-4-5 to -12;

2 Smith, 1985-NMCA-121, ¶ 5; see also Upton, 2006-NMSC-040, ¶ 8 (“The TCA 

3 grants all government entities and their employees general immunity from actions 

4 in tort, but waives that immunity in certain specified circumstances.”). 

5 {6} The same year that it enacted the TCA, the Legislature enacted another 

6 statute addressing the state’s liability for contract claims. See NMSA 1978, § 37-1-

7 23 (1976); Hydro Conduit Corp., 1990-NMSC-061, ¶ 13. Section 37-1-23(A)

8 grants immunity to the state in actions based on contract except for claims based 

9 upon a valid, written contract. See Hydro Conduit Corp., 1990-NMSC-061, ¶ 17 

10 (explaining that the legislative history of the statute indicates that the purpose of 

11 enacting Section 37-1-23 “was to reinstate the sovereign immunity which had been 

12 abolished by Hicks . . . , subject to certain exceptions[,]” including “the acceptance 

13 of liability for claims based on valid written contracts”). 

14 {7} Our Supreme Court has since read Hicks as “generally abolish[ing] the 

15 common law doctrine of sovereign immunity in all its ramifications, whether in 

16 tort or contract or otherwise[.]” Torrance Cty. Mental Health Program v. N.M. 

17 Health and Env’t Dep’t, 1992-NMSC-026, ¶ 14, 113 N.M. 593, 830 P.2d 145

18 (emphasis added); see also State ex rel. Hanosh v. State ex rel. King, 2009-NMSC19 047, ¶ 10, 147 N.M. 87, 217 P.3d 100 (“Although [Hicks] specifically challenged 

20 the state’s common[]law immunity from actions in tort, no one should doubt the 
5

1 broader scope of what this Court has previously described as Hicks’s sweeping 

2 abolition of sovereign immunity.”) (internal quotation marks and citations 

3 omitted); Methola v. Cty. of Eddy, 1980-NMSC-145, ¶ 9, 95 N.M. 329, 622 P.2d 

4 234 (describing the holding in Hicks broadly as abolishing judicially recognized 

5 sovereign immunity in New Mexico). The breadth of Hicks is bolstered by the fact 

6 that the “opinion itself prefaced its holding by citing to a variety of New Mexico 

7 opinions and not just cases sounding in tort.” Hanosh, 2009-NMSC-047, ¶ 11. 

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

9 depends upon the Legislature. “The common law now recognizes a constitutionally 

10 valid statutory imposition of sovereign immunity, and such immunity must be 

11 honored by the courts where the [L]egislature has so mandated.” Torrance Cty., 

12 1992-NMSC-026, ¶ 16 (alteration, internal quotation marks, and citation omitted); 

13 see e.g. Hydro Conduit Corp., 1990-NMSC-061, ¶ 22 (holding that a claim against 

14 the state for restitution based on unjust enrichment was barred by sovereign 

15 immunity as reinstated by Section 37-1-23). The availability of the state’s defense 

16 of sovereign immunity does not depend on whether the Legislature provided a 

17 waiver of immunity within a statute. Rather, the state may defend a suit based on 

18 sovereign immunity only insofar as the Legislature has invoked immunity within or 

19 otherwise in connection with the statute under which the plaintiff brings its suit 

20 against the state. See Torrance Cty., 1992-NMSC-026, ¶ 23. Sovereign immunity 
6

1 now exists only “as implemented by statute or as might otherwise be interposed by 

2 judicial decision for sound policy reasons.” Id. ¶ 14; see also Hanosh, 2009-

3 NMSC-047, ¶ 7 (discussing Hicks and noting that “courts are very much able to 

4 expand, contract, or eliminate altogether common[]law sovereign immunity, 

5 subject of course to the power of the state legislature to codify immunity in its 

6 place”) (emphasis added); Smith, 1985-NMCA-121, ¶ 5 (“In New Mexico, 

7 sovereign immunity is a statutory creation.”); Marrujo v. N.M. State Highway 

8 Transp. Dep’t, 1994-NMSC-116, ¶ 24, 118 N.M. 753, 887 P.2d 747 (“The right to 

9 sue the government is a statutory right and the [L]egislature can reasonably restrict 

10 that right.”).

11 C. The FPWA

12 {9} Plaintiff’s claim here arises solely under one state statute: the FPWA. 

13 Defendant asserts sovereign immunity, “not under federal law or principles of 

14 federalism,” but “under what [Defendant] perceives to be vestigial remains of our 

15 state common[]law sovereign immunity.” Hanosh, 2009-NMSC-047, ¶ 9.

16 However, common law sovereign immunity no longer exists. Therefore, we must 

17 determine whether the Legislature invoked the state’s sovereign immunity in the 

18 FPWA. Alternatively, even in the absence of an express statutory invocation, we 

19 must determine whether the Legislature intended the state to be subject to the 
7

1 statute. See Lucero, 2002-NMCA-013, ¶¶ 3, 7, 9 (recognizing the need to 

2 determine whether a statutory cause of action applies to government entities).

3 1. The FPWA Does Not Expressly Invoke Sovereign Immunity

4 {10} When the Legislature invokes the state’s sovereign immunity, it does so 

5 expressly. Other statutes that invoke the state’s sovereign immunity—namely, the 

6 TCA and Section 37-1-23—demonstrate a clear invocation of immunity. The TCA 

7 straightforwardly provides that “[a] governmental entity and any public employee 

8 while acting within the scope of duty are granted immunity from liability for any 

9 tort.” Section 41-4-4(A). Similarly, in Section 37-1-23(A), the Legislature clearly 

10 invokes the state’s immunity for contract claims by stating that “[g]overnmental 

11 entities are granted immunity from actions based on contract[.]” The FPWA does 

12 not contain any similar language, and it does not refer to sovereign immunity at all. 

13 See NMSA 1978, §§ 28-23-1 to -6 (2013) (lacking language addressing the state’s 

14 immunity from suits alleging violation of the conduct prohibited). We therefore 

15 conclude that Defendant has no sovereign immunity from liability under the TCA 

16 or the FPWA. We next examine the language of the FPWA to determine whether 

17 the Legislature intended the state to be a liable party.

18 2. The State Is an “Employer” Subject to Claims Brought Under the 

19 FPWA by Public Employees

20 {11} The FPWA prohibits an “employer” from discriminating between employees 

21 on the basis of sex by paying wages to employees at a rate less than the rate that 
8

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

2 28-23-3(A). The FPWA defines “employer” as “a person employing four or more 

3 employees and any person acting for an employer.” Section 28-23-2(E). The 

4 FPWA does not, however, define “person.”

5 {12} In the absence of contradictory language in the FPWA, the provisions of the 

6 Uniform Statute and Rule Construction Act (the USRCA) apply. See NMSA 1978,

7 § 12-2A-1(B) (1997). “The [USRCA] applies to a statute enacted or rule adopted 

8 on or after the effective date of that act unless the statute or rule expressly provides 

9 otherwise, the context of its language requires otherwise[,] or the application of 

10 that act to the statute or rule would be infeasible.” Id. The Legislature enacted the 

11 FPWA sixteen years after the passage of the USRCA. Section 28-23-1; Section 12-

12 2A-1. The FPWA does not provide that the USRCA does not apply; the context of 

13 the FPWA does not require that the USRCA does not apply; and the application of

14 the USRCA to the FPWA is feasible. Therefore, the USRCA supplies the meaning 

15 of terms not defined in the FPWA. 

16 {13} The USRCA defines “person” as “an individual, corporation, business trust, 

17 estate, trust, partnership, limited liability company, association, joint venture or 

18 any legal or commercial entity[.]” NMSA 1978, Section 12-2A-3(E) (1997). A 

19 “legal entity” is “[a] body, other than a natural person, that can function legally, 

20 sue or be sued, and make decisions through agents.” Black’s Law Dictionary 1031
9

1 (10th ed. 2014). The state, an entity capable of suing and being sued, is, therefore, 

2 a legal entity that falls within the definition of “person” and thus is subject to suit 

3 for violating the terms of the FPWA. See, e.g., NMSA 1978, § 10-16C-4 (2010) 

4 (providing a cause of action against the state); State v. Davisson, 1923-NMSC-045, 

5 ¶ 11, 28 N.M. 653, 217 P. 240 (explaining that the board of county commissioners 

6 is entitled to sue for sums due to the county).

7 {14} Finally, we address Defendant’s argument that the Legislature must not have 

8 intended the USRCA’s definition of “person” to include the state because the 

9 USRCA separately defines “state.” See § 12-2A-3(E), (M). Defendant reasons that 

10 if “person” included the state, there would have been no need to provide a 

11 definition for “state.” We are not persuaded by this argument. The USRCA defines 

12 “state” as “a state of the United States, the District of Columbia, the 

13 Commonwealth of Puerto Rico or any territory or insular possession subject to the 

14 jurisdiction of the United States.” Id. All items within the definition of “state” are 

15 geographic locations. Section 12-2(A)-3(M). The items within the definition of 

16 “person” are different in kind; all but one of the items in the definition is a body or 

17 an entity created by law. As a result, the definition of “state” is not superfluous. It 

18 simply defines the geographic locations that are included by use of the term “state” 

19 on its own in a statute, whether or not the statute also uses the term “person.” 
10

1 CONCLUSION

2 {15} We conclude that the Legislature intended for the state to be subject to 

3 claims brought under the FPWA and we reverse the order of the district court 

4 granting Defendant’s motion to dismiss.

{16} IT IS SO ORDERED.

5 ___________________________

6 STEPHEN G. FRENCH, Judge

7 WE CONCUR:

8 ___________________________________

9 M. MONICA ZAMORA, Judge

10 ___________________________________

11 HENRY M. BOHNHOFF, Judge