Sierra County’s attorney wins New Mexico Supreme Court case on sovereign immunity

by Kathleen Sloan | October 29, 2020
6 min read
Headshot of David Pato
David Pato Photograph courtesy of Nance, Pato & Stout

David Pato, Sierra County’s attorney for many years, recently won a New Mexico Supreme Court case that affirms counties’ immunity from “quiet title” suits that threaten their real estate holdings.

“The holding is meaningful to the state and all its political subdivisions, municipalities and school districts,” Pato said, “because now all these public bodies are secure in their facilities.”

Pato said the ruling came down on Oct. 15, the end of a five-year legal battle that started in two different district courts and went on to two different appellate courts, with the two cases ultimately combined by the New Mexico Supreme Court.

Pato is a partner in the Nance, Pato & Stout law firm in Socorro. Adren Nance was also a litigator in the case.

Pato and Nance, according to the law firm’s website, are board-certified local government law specialists. Pato not only represents Sierra County, but also Valencia, Socorro, Catron and Cibola counties.

Pato represented Catron and Valencia counties as the cases worked their way through the court system.

New Mexico Supreme Court Justice David K. Thomson wrote the decision for the court, with Chief Justice Michael Vigil, Senior Justice Barbara J. Vigil and Justice C. Shannon Bacon concurring. Thomson and Bacon are on the Nov. 3 ballot for re-election.

Thomson’s opinion is a recapitulation of the state’s court and statutory history on the concept of “sovereign immunity”—or governmental immunity from lawsuits—as it relates to real estate.

The concept of sovereign immunity in the United States is inherited from English common law, according to Wikipedia’s “Sovereign Immunity in the United States” entry. The basis of that “legal maxim,” is “the king can do no wrong.”

Sovereign immunity was not in the U.S. Constitution, but there is the “logical inference.” Paraphrasing John Lobato and Jeffrey Theodore in a 2006 Harvard Law School article, “Federal Sovereign Immunity,” Wikipedia states, “the government cannot be compelled by the courts because it is the power of the government that creates the courts in the first place.”

The U.S. Constitution’s 11th Amendment recognized states’ sovereign immunity, with counties as state agencies being included in those protections.

New Mexico had common-law sovereign immunity, as it relates to real estate, until 1978, Thomson said, “when this Court explicitly acknowledged the abolition of the doctrine’s application in New Mexico,” in the Brosseau v. New Mexico State Highway Department decision.

Three months later, Thomson said, the legislature recreated sovereign immunity statutorily. It enacted state law 42-11-1, “prohibiting 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.’”

One state law, enacted in 1947 by the legislature, 42-6-12, does limit sovereign immunity against quiet title suits:

42-6-12. [Consent of state in quiet title and foreclosure suits.]

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.

Thomson examined the law’s original bill to aid him in interpreting the legislature’s intention. He also cites the narrow interpretation the New Mexico Supreme Court gave the law in the 1958 case, Maes v. Old Lincoln County. The state can only be named in a quiet title suit if “mortgages can’t pass marketable title to a purchaser at a foreclosure sale without the state being joined in a foreclosure suit,” Thomson said.

“Although sovereign immunity can produce inequitable results,” Thomson said, “we will not judicially repeal an immunity that the legislature lawfully created unless such immunity violates the United States or New Mexico Constitution.”  

In the first case argued by Pato, Belen Consolidated School District brought a quiet title suit naming Valencia County as a defendant. It wanted to sell a park to “fund school activities.” The county had been maintaining and expending public funds on the park for many years. 

Pato filed a motion to dismiss, claiming the county couldn’t be named in the suit and the narrow exception to immunity carved out in state law 42-6-12 didn’t apply.

The district court wouldn’t dismiss the case, because the judge, as quoted by Thomas, opined “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.’”

Pato petitioned the appellate court, which ordered the lower court to dismiss the case. Belen Consolidated School District petitioned the state supreme court, which upheld the appellate court’s decision.

In the second case, Gregory and Susie Nash of Catron County filed a quiet title suit, naming the county as the defendant. They claimed the county’s court complex impinged on their land.

Pato again filed a motion to dismiss the case, and the district court granted the dismissal—but reluctantly. Thomson quoted the district judge in his opinion: “It is disturbing sometimes to think that the county can just come in and take somebody’s property. . . it sounds like there were other remedies . . . that could have happened in this case.”

The Nashes petitioned the appellate court, which upheld the district court’s ruling. They petitioned the supreme court, which upheld the appellate court ruling.

Both the Nashes and Belen Consolidated School District said their rights under the 14th Amendment were being violated by their not being able to name the counties in a quiet title suit. The amendment provides “no person shall be deprived of life, liberty or property without due process of law.”

Pato argued successfully due process was served because all the plaintiffs had another remedy. They could have filed an “inverse condemnation” suit against their respective counties.

Inverse condemnation suits examine government takings without just compensation.  

All the plaintiffs had missed the three-year statute of limitations for filing such a suit, however.

Supreme Court Justice Thomson agreed, stating neither “Nash nor Belen established an actual deprivation of property . . . neither made timely assertion or claim for inverse condemnation, which is the proper and exclusive remedy.”  

The larger issue revealed in this state supreme court case, beyond the power of the state in aquiring public lands, may be the court’s deference to the legislature in following the letter of the law in making its unanimous decision.

“It is the particular domain of the legislature,” Thomson wrote in his opinion, “as the voice of the people, to make public policy.”

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Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at kathleen.sloan@gmail.com or 575-297-4146.
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Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies 

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.

H.E.L.P.

This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.

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