NM Stat § 44-6-2 (2021)
2021 New Mexico Statutes|Chapter 44 - Miscellaneous Civil Law Matters|Article 6 - Declaratory Judgments|Section 44-6-2 - Scope.

In cases of actual controversy, district courts within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect and shall have the force and effect of a final judgment or decree. History: 1953 Comp., § 22-6-5, enacted by Laws 1975, ch. 340, § 2. ANNOTATIONSI. GENERAL CONSIDERATION.Administrative rule-making proceedings. — A court may not intervene in administrative rule-making proceedings before the adoption of a rule or regulation because the separation of powers doctrine forbids a court from prematurely interfering with the administrative processes created by the legislature; only upon completion of administrative rule-making proceedings will a party be certain that it is aggrieved, since it is unknown whether a regulation will even be adopted by the agency; and since the administrative proceeding is not complete, there is no actual controversy to be resolved by a declaratory judgment action. New Energy Econ., Inc. v. Shoobridge, 2010-NMSC-049, 149 N.M. 42, 243 P.3d 746. Where plaintiffs filed a complaint for a declaratory judgment to enjoin the environmental improvement board from holding fact-finding hearings on a proposal to regulate green house emissions on the grounds that the board lacked statutory authority to consider the proposal, the question of whether the board's rule-making actions exceeded its legislative authority was not ripe for judicial review because no final rule-making action had occurred and there was not an actual controversy. New Energy Econ., Inc. v. Shoobridge, 2010-NMSC-049, 149 N.M. 42, 243 P.3d 746. Declaratory judgment action to determine authority to enact regulations. — A plaintiff may file an action under the Declaratory Judgment Act to raise a purely legal challenge to the environmental improvement board's authority under state law and may file the action independent of the administrative appeal process, with or without the environmental improvement board's consent. State ex rel. Hanosh v. State ex rel. King, 2009-NMSC-047, 147 N.M. 87, 217 P.3d 100, aff'g State ex rel. Hanosh v. N.M. Envtl. Improvement Bd., 2008-NMCA-156, 145 N.M. 270, 196 P.3d 970. "Actual controversy" and "interested party" required. — Under this section's predecessor there must have been an "actual controversy" and an "interested party" petitioning for judgment. State ex rel. Maloney v. Sierra, 1970-NMSC-144, 82 N.M. 125, 477 P.2d 301. Controversy assuring concrete adverseness is key ingredient of standing. — The "gist of the question of standing" is whether the party seeking relief has alleged such personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. State ex rel. Overton v. N.M. State Tax Comm'n, 1969-NMSC-140, 81 N.M. 28, 462 P.2d 613. Decision to accept declaratory judgment jurisdiction discretionary and reviewable. — Whether a court assumes, takes, entertains, accepts or exercises jurisdiction in a declaratory judgment action, or refuses so to do, it is acting within its discretionary power which is subject to review for an alleged abuse thereof. Allstate Ins. Co. v. Firemen's Ins. Co., 1966-NMSC-120, 76 N.M. 430, 415 P.2d 553. Determination of remedy may be had before hearing on merits. — Contention that it was mandatory on the district court to hear a case on the merits before it could exercise its discretion to determine whether a declaratory judgment was the appropriate remedy and whether a declaration should be granted or denied was without merit. Allstate Ins. Co. v. Firemen's Ins. Co., 1966-NMSC-120, 76 N.M. 430, 415 P.2d 553. Action contesting proposed expenditure's constitutionality not premature. — Because the bond issue money has not been raised, nor spent, does not make this a premature suit for declaratory judgment, seeking a declaration that proposed expenditure of money was unconstitutional. Gomez v. Board of Educ., 1971-NMCA-148, 83 N.M. 207, 490 P.2d 465. Stipulation may supply absent allegations of answer. — Where an action for a declaratory judgment is submitted upon a stipulation that completely covers the case, then the matter of pleadings becomes immaterial and the fact that the pleadings contain no allegation upon a certain issue involved will not be considered. A stipulation may supply absent allegations of an answer. A stipulation may supply the failure to allege the amount involved, if such amount is contained in the stipulation itself. Lyle v. Luna, 1959-NMSC-042, 65 N.M. 429, 338 P.2d 1060. Question not pleaded but argued will be considered. — Where a controversial question was not pleaded but argued pro and con in briefs of the parties, the supreme court considers it in the same manner as a cause of action properly pleaded. Laughlin v. Laughlin, 1944-NMSC-062, 49 N.M. 20, 155 P.2d 1010. Dispute turning upon fact question still considered. — That the dispute turns upon question of fact does not withdraw it from judicial cognizance. National Liberty Ins. Co. of Am. v. Silva, 1939-NMSC-023, 43 N.M. 283, 92 P.2d 161; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617, reh'g denied, 300 U.S. 687, 57 S. Ct. 461, 81 L. Ed. 617 (1937). Judgment not disturbed where evidence conflicts and corroboration available. — Where land had been left out of a deed by mutual mistake, a finding to that effect and a determination of the value of the land would not be disturbed on appeal, where the evidence adduced in the declaratory judgment suit was conflicting and corroboration on the part of a disinterested witness was available. Collier v. Sage, 1947-NMSC-025, 51 N.M. 147, 180 P.2d 242. Trial court may properly grant declaratory and nondeclaratory relief in a single action when such relief is requested in the pleadings by the parties. Sunwest Bank v. Clovis IV, 1987-NMSC-065, 106 N.M. 149, 740 P.2d 699. II. ACTUAL CONTROVERSY.An actual controversy must exist to confer jurisdiction on the district courts. — Under the Declaratory Judgment Act, courts in New Mexico have jurisdiction to adjudicate and declare rights and legal relations only in cases of actual controversy. An actual controversy is not present unless the issue raised by the litigant is ripe for judicial determination and the litigant has standing. AFSCME v. Board of Cnty. Comm'rs of Bernalillo Cnty., 2016-NMSC-017, vacating 2015-NMCA-070, 352 P.3d 682. Where union sought to file a prohibited practice claim with the public employees labor relations board rather than with the county labor board, as designated by the labor-management relations ordinances, claiming that filing with the county labor board would deprive the union and its members of due process because the county labor board's decisions are subject to a biased review by the county commission, the union did not establish the existence of an actual controversy, because the fact that the due process injury would materialize only if the county labor board found a prohibited practice, giving the county commission the right to review, the union failed to satisfy the justiciability requirements of ripeness and the injury-in-fact component of standing, and therefore the district court lacked jurisdiction to decide the merits of the action. AFSCME v. Board of Cnty. Comm'rs of Bernalillo Cnty., 2016-NMSC-017, vacating 2015-NMCA-070, 352 P.3d 682. In order to confer jurisdiction on court to enter declaration an actual controversy must exist. Allstate Ins. Co. v. Firemen's Ins. Co., 1966-NMSC-120, 76 N.M. 430, 415 P.2d 553. An actual controversy must exist to confer jurisdiction. Taos County Bd. of Educ. v. Sedillo, 1940-NMSC-026, 44 N.M. 300, 101 P.2d 1027. Question must be real and real interests on both sides. — The only controversy necessary to invoke action of the court and have it declare rights under declaratory judgment provisions is that the question must be real, and not theoretical; the person raising it must have a real interest, and there must be someone having a real interest in the question who may oppose the declaration sought. Taos Cnty. Bd. of Educ. v. Sedillo, 1940-NMSC-026, 44 N.M. 300, 101 P.2d 1027. Remedy available if threat of unconstitutional deprivation of personal rights. — This remedy is only available under circumstances where one seeking relief is actually threatened with an unconstitutional deprivation of personal rights. Balizer v. Shaver, 1971-NMCA-010, 82 N.M. 347, 481 P.2d 709. Prerequisites of "actual controversy" warranting consideration in declaratory judgment action are: a controversy involving rights or other legal relations of the parties seeking declaratory relief; a claim of right or other legal interest asserted against one who has an interest in contesting the claim; interests of the parties must be real and adverse; and the issue involved must be ripe for judicial determination. Sanchez v. City of Santa Fe, 1971-NMSC-012, 82 N.M. 322, 481 P.2d 401. Subject matter jurisdiction cannot be waived or conferred by consent. — There must be an "actual controversy" before jurisdiction is obtained. Jurisdiction of the subject matter cannot be conferred by consent of the parties, much less waived by them. Absent jurisdiction over the parties or absent the power or authority to decide the particular matter presented, and the lack of any essential element, is just as fatal to the judgment. If sensed by the court, even though not raised by the parties, the question of jurisdiction compels an answer. There must be a real and not a theoretical question, and the party raising it must have a real interest in the question before a declaratory judgment action will lie. State ex rel. Overton v. N.M. State Tax Comm'n, 1969-NMSC-140, 81 N.M. 28, 462 P.2d 613. Actual controversy when administrative stalemate detrimental to public interest exists. — Where there was an administrative stalemate detrimental to public interest, in which attorney general claimed that entire chapter on liquor sales was unconstitutional contrary to assertion of director of department of alcoholic beverage control, and attorney general construed a separate chapter on liquor sales to allow sale of alcoholic beverages by the drink on Sundays but director denied such an interpretation, there existed an actual controversy between interested parties rendering suit proper for declaratory judgment relief even though a licensed dispenser of alcoholic beverages was not a party. State ex rel. Maloney v. Sierra, 1970-NMSC-144, 82 N.M. 125, 477 P.2d 301. Deprivation of constitutional rights and prior arrests create actual controversy. — Where complaint alleged that by the use of the color of city vagrancy ordinance, the defendants had deprived and threatened to deprive the plaintiffs of the constitutional privileges and immunities granted to citizens of the United States, such language, coupled with the alleged facts relating to prior arrests of plaintiffs by defendants under vagrancy ordinance, adequately disclosed a fact situation from which it could properly be said that plaintiffs were actually threatened with deprivation of their personal constitutional rights, and consideration of the constitutionality of the ordinance under this section's predecessor was warranted as against the contention that no actual controversy was present, even where both named plaintiffs were acquitted of the charges of vagrancy by the municipal court. Balizer v. Shaver, 1971-NMCA-010, 82 N.M. 347, 481 P.2d 709. Actual controversy where municipality requires and subdivider refuses. — In case where municipality required subdivider to pay a $50.00 fee per lot to be used for subdivision maintenance and improvements, but the subdivider refused to do so, an actual controversy within the ambit of this section existed between the parties. Sanchez v. City of Santa Fe, 1971-NMSC-012, 82 N.M. 322, 481 P.2d 401. No actual controversy found in child custody case. — In an action brought pursuant to the federal Civil Rights Act (42 U.S.C. § 1983), because of a social worker's extraterritorial seizure of the plaintiff's child in California based on an ex parte order issued in New Mexico, the court did not err in denying declaratory relief, since full legal and physical custody of the child had been returned to the plaintiff. It is improper to grant declaratory relief in the absence of any actual case or controversy. Yount v. Millington, 1993-NMCA-143, 117 N.M. 95, 869 P.2d 283, cert. denied, 117 N.M. 121, 869 P.2d 820 (1994). III. APPLICABILITY.Venue for declaratory judgment action involving administrative appeals. — Where a statutory procedure existed for seeking judicial review of an administrative decision and the plaintiff initiated the administrative appeals process, the plaintiff could not circumvent the restrictions on where an administrative appeal could be filed by filing a declaratory judgment action. State ex rel. ENMU Regents v. Baca, 2008-NMSC-047, 144 N.M. 530, 189 P.3d 663. Review of administrative actions. — A declaratory judgment action provides an alternative means of challenging an administrative entity's authority to make a decision if the action involves purely legal issues that do not require fact finding by the administrative entity and if the action does not circumvent established time frames for seeking appellate review of an administrative action. Smith v. City of Santa Fe, 2007-NMSC-055, 142 N.M. 786, 171 P.3d 300. Exhaustion of administrative remedies not required for district court to rule on a purely legal issue. — Exhaustion of administrative remedies was not required for the district court to rule on the purely legal issue of the ex post facto application of a 2009 amendment to 66-5-33.1 NMSA 1978, which required a minimum of six months of driving with an ignition interlock device before reinstatement of a revoked license. Yepa v. N.M. Taxation & Revenue Dep't, 2015-NMCA-099, cert. denied, 2015-NMCERT-008. Action lies to determine propriety of attorney general's action. — County board of education may properly file suit under this section's predecessor for a declaratory judgment as to the merits of refusal of attorney general to approve issuance of bonds for the purpose of erecting and furnishing school buildings in certain school districts. Taos Cnty. Bd. of Educ. v. Sedillo, 1940-NMSC-026, 44 N.M. 300, 101 P.2d 1027. To determine validity of state engineer regulations. — Where there was no statutory right to appeal or other avenue for review of the state engineer's adoption of active water resource management regulations affecting water rights, the proper avenue to challenge the rule-making was through a declaratory judgment action. Tri-State Generation and Transmission Ass'n,. Inc. v. D'Antonio, 2011-NMCA-014, 149 N.M. 386, 249 P.3d 924. To determine validity of ordinance. — An action to determine the validity of a municipal ordinance prohibiting the keeping of livestock in certain areas was brought under these provisions. Mitchell v. City of Roswell, 1941-NMSC-007, 45 N.M. 92, 111 P.2d 41. To determine corporation's rights under unauthorized contract. — Action to determine rights of corporation under a contract made by its general manager without authority was brought under this section's predecessor. Burguete v. G.W. Bond & Bro. Mercantile Co., 1938-NMSC-075, 43 N.M. 97, 85 P.2d 749. To determine governmental agency's insurer's liability. — Where New Mexico department of highways was immune from suit when liability insurance did not cover auto collision for which recovery was sought, declaratory judgment against department's insurer as to coverage, absent which action against department was improper, was proper even though no judgment had been obtained against department. Baca v. N.M. State Hwy. Dep't, 1971-NMCA-087, 82 N.M. 689, 486 P.2d 625. To determine whether insured destroyed own property. — Where liability of an insurer for destruction of property by fire depends upon the disputed fact of whether the insured burned his own property, a suit by the insurer under these provisions is authorized. Nat'l. Liberty Ins. Co. of Am. v. Silva, 1939-NMSC-023, 43 N.M. 283, 92 P.2d 161. To determine if wages paid according to bargaining agreement. — The president of a union has sufficient interest to bring suit for a declaratory judgment as to whether employer was required to pay employees, members of union, in accordance with scale set up in collective bargaining agreement. Key v. George E. Breece Lumber Co., 1941-NMSC-037, 45 N.M. 397, 115 P.2d 622. IV. RELATIONSHIP TO OTHER ACTIONS.Main characteristic of declaratory judgment which distinguishes it from other judgments is the fact that it conclusively declares the preexisting rights of the litigants without the appendage of any coercive decree, and does not seek execution or performance from the defendant or opposing party, for no executory process follows as of course. Savage v. Howell, 1940-NMSC-078, 45 N.M. 527, 118 P.2d 1113. These provisions do not enlarge jurisdiction of courts over subject matter and parties, but provide an alternative means of presenting controversies to courts having jurisdiction thereof. Allstate Ins. Co. v. Firemen's Ins. Co., 1966-NMSC-120, 76 N.M. 430, 415 P.2d 553. Unless valid cause of action is stated under rules of substantive law, there can be no recourse to declaratory judgment procedure to reach the desired end. No new substantive rights were created by the Declaratory Judgment Act. American Linen Supply of N.M., Inc. v. City of Las Cruces, 1963-NMSC-176, 73 N.M. 30, 385 P.2d 359. Declaratory actions are governed by same limitations applicable to other forms of relief, since the nature of the right sued upon, and not the form of action or relief demanded, determines the applicability of the statute of limitations. Taylor v. Lovelace Clinic, 1967-NMSC-234, 78 N.M. 460, 432 P.2d 816. No cause of action where complaint seeks to obtain evidence. — Where complaint seeks the aid of the court to obtain evidence which plaintiff considers necessary to establish an asserted claim or cause of action, and the costs thereof be charged to defendants if plaintiff's position is found to be correct, even though the defendant has agreed to the test if no obligation to pay therefor is placed upon it, trial court was correct in sustaining the motion to dismiss since the complaint stated no cause of action cognizable under this section's predecessor. American Linen Supply of N.M., Inc. v. City of Las Cruces, 1963-NMSC-176, 73 N.M. 30, 385 P.2d 359. Action not substitute for discovery procedures. — A declaratory judgment is not the proper means nor was it intended to provide a manner of developing proof otherwise not available. It is not a substitute for discovery procedures. It is designed for the determination of issues in recognized causes of action between parties in the light of evidence that each may present without any coercive decree being sought, at least in the first instance. American Linen Supply of N.M., Inc. v. City of Las Cruces, 1963-NMSC-176, 73 N.M. 30, 385 P.2d 359. Applicable prior determinations made by supreme court cannot be avoided by the expedient of seeking a declaratory judgment. Collier v. Sage, 1947-NMSC-025, 51 N.M. 147, 180 P.2d 242. Administrative remedies must be exhausted. — 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. Am. Jur. 2d, A.L.R. and C.J.S. references. — 22A Am. Jur. 2d Declaratory Judgments §§ 1, 33, 35 to 40, 238 to 242. Declaration of rights or declaratory judgments, 12 A.L.R. 52, 19 A.L.R. 1124, 50 A.L.R. 42, 68 A.L.R. 110, 87 A.L.R. 1205, 114 A.L.R. 1361, 142 A.L.R. 8 Questions or controversy between public officers as within contemplation of Declaratory Judgment Act, 103 A.L.R. 1094. Right to quiet title or remove cloud on title to personal property by suit in equity or under Declaratory Judgment Act, 105 A.L.R. 291. Determination of constitutionality of statute or ordinance, or proposed statute or ordinance, as proper subject of judicial decision under Declaratory Judgment Act, 114 A.L.R. 1361. Application of Declaratory Judgment Act to questions in respect of insurance policies, 123 A.L.R. 285, 142 A.L.R. 8 Action under Declaratory Judgment Act to test validity or effect of a decree of divorce, 124 A.L.R. 1336. Questions regarding rights of inheritance or other rights in respect of another's estate after death as proper subject of declaratory action before latter's death, 139 A.L.R. 1239. Application of Declaratory Judgment Act to questions in respect of insurance policies, 142 A.L.R. 8 Justiciable controversy within Declaratory Judgment Act as predicable upon advice, opinion or ruling of public administrative officer, 149 A.L.R. 349. Statute of limitations or doctrine of laches in relation to declaratory actions, 151 A.L.R. 1076. Validity and effect of former judgment or decree as proper subject for consideration in declaratory action, 154 A.L.R. 740. May declaratory and coercive or executory relief be combined in action under Declaratory Judgment Act, 155 A.L.R. 501. Release as proper subject of action for declaratory judgment, 167 A.L.R. 433. Labor dispute as proper subject of declaratory action, 170 A.L.R. 421. Custody of child as proper subject of declaratory action, 170 A.L.R. 521. Right to declaratory relief as affected by existence of other remedy, 172 A.L.R. 847. Determination of seniority rights of employee as proper subject of declaratory suit, 172 A.L.R. 1247. Interest necessary to maintenance of declaratory determination of validity of statute or ordinance, 174 A.L.R. 549. "Actual controversy" under declaratory judgment statute in building restriction cases, 174 A.L.R. 853. Declaratory or advisory relief respecting future interest, 174 A.L.R. 880. Declaratory judgments as to relief against covenant restricting right to engage in business or profession, 10 A.L.R.2d 743. Extent to which res judicata principles apply to actions for declaratory relief, 10 A.L.R.2d 782. Tax questions as proper subject of action for declaratory judgment, 11 A.L.R.2d 359. Declaratory relief with respect to unemployment compensation, 14 A.L.R.2d 826. Suspension or expulsion from social club or similar society and the remedies therefor, 20 A.L.R.2d 344. Suspension or expulsion from church or religious society and the remedies therefor, 20 A.L.R.2d 421. Suspension or expulsion from professional association and the remedies therefor, 20 A.L.R.2d 531. Remedy for refusal of corporation or its agent to register or effectuate transfer of stock, 22 A.L.R.2d 12. Burden of proof in actions under general declaratory judgment acts, 23 A.L.R.2d 1243. Negligence issue as a proper subject for declaratory judgment, 28 A.L.R.2d 957. Declaratory judgments as to partnership or joint-venture matters, 32 A.L.R.2d 970. Validity of lease of real property, 60 A.L.R.2d 400. Declaratory judgment, during lifetime of spouses, as to construction of antenuptial agreement dealing with property rights of survivor, 80 A.L.R.2d 941. Declaratory judgment to determine validity or existence of common-law marriage, 92 A.L.R.2d 1102. Availability and scope of declaratory judgment actions in determining rights of parties, or powers and exercise thereof by arbitrators, under arbitration agreements, 12 A.L.R.3d 854. 26 C.J.S. Declaratory Judgments §§ 1, 5, 24, 159. Determination of price is actual controversy. — The state highway commission (now state transportation commission) can properly bring an action for declaratory judgment to determine the amount to be paid for sand and gravel removed for public highway purposes. The determination of price is an actual controversy as contemplated by the declaratory judgment law, and declaratory judgment is a proper means of resolving the questions. 1961 Op. Att'y Gen. No. 61-12.