Nash v. Bd. of Cnty. Comm'rs of Catron Cnty. and Belen Consol. Sch. Dist. v. Valencia Cnty.

Office of the Director New Mexico
08:16:54 2021.02.25 Compilation
'00'07- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2021-NMSC-005

Filing Date: October 19, 2020

No. S-1-SC-37692

GREGORY A. NASH and SUSIE K. NASH,

Plaintiffs-Petitioners,

v.

GROUP I: BOARD OF COUNTY
COMMISSIONERS
OF CATRON COUNTY, NEW
MEXICO, a political subdivision
of the State of New Mexico, and
ELENA GELLERT,

and

GROUP II: ALL UNKNOWN
CLAIMANTS OF INTEREST
IN THE PREMISES ADVERSE
TO THE PLAINTIFFS,

Defendants-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Shannon Murdock, District Judge

And

No. S-1-SC-37778

BELEN CONSOLIDATED
SCHOOL DISTRICT,

Plaintiff-Petitioner,

v.

THE COUNTY OF VALENCIA,
Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
James Lawrence Sanchez, District Judge

Released for Publication March 2, 2021.

Turner Law Firm, LLC
Scott E. Turner
Albuquerque, NM

for Plaintiffs-Petitioners Gregory A Nash and Susie K. Nash

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Arthur D. Melendres
Zachary L. McCormick
Albuquerque, NM

for Plaintiff-Petitioner Belen Consolidated School District

Nance, Pato & Stout, LLC
Adren Robert Nance
David Matthew Pato
Socorro, NM

for Defendants-Respondents Board of County Commissioners of the County of Catron
and Board of County Commissioners of the County of Valencia

OPINION

THOMSON, Justice

{1} In a consolidated opinion, the Court of Appeals determined that New Mexico
counties generally have statutory immunity from suits to quiet title and held that “there is
no [applicable] statutory exception” to that immunity. Belen Consol. Sch. Dist. v. Cnty. of
Valencia, 2019-NMCA-044, ¶ 1, 447 P.3d 1154 (consolidating Belen Consol. Sch. Dist.
v. Cnty. of Valencia, A-1-CA-35474, and Nash v. Bd. of Cnty. Comm’rs of Catron Cnty.,
A-1-CA-37081). The parties who were plaintiffs in the two district court cases separately
petitioned this Court to issue its writ of certiorari. We granted both petitions pursuant to
NMSA 1978, Section 34-5-14 (1972), and Rule 12-502 NMRA. The parties in both
cases participated in an oral argument before this Court. We now address whether
statutory immunity protects counties from being named in quiet title actions or whether a
valid waiver to that immunity exists. We exercise our discretionary authority under Rule
12-317(B) NMRA to issue a consolidated opinion, and we affirm the Court of Appeals.

I. BACKGROUND
{2} The issue addressed in this opinion arises from the evolution, abolition, and
resurrection of governmental immunity in New Mexico. In 1958, this Court recognized
that common law sovereign immunity protects the state and its political subdivisions
from being named in an action to quiet title “to extinguish the state’s fee simple title in
the property.” Maes v. Old Lincoln Cnty. Mem’l Comm’n, 1958-NMSC-115, ¶¶ 9-12, 64
N.M. 475, 330 P.2d 556. The Maes Court’s holding was based on its construction of the
limited waiver of common law sovereign immunity that the Legislature enacted in 1947,
which is now codified as NMSA 1978, § 42-6-12 (1947). 1 The Maes Court construed
Section 42-6-12 to waive common law sovereign immunity “for the limited purpose of
aiding a mortgagee who discovers that the State has acquired an interest in the
mortgaged property and [who] is unable to pass a marketable title to the purchaser at a
foreclosure sale unless the state can be joined in the foreclosure suit.” See 1958-
NMSC-115, ¶ 10.

{3} The judicially-created doctrine of common law sovereign immunity that the Maes
Court applied in actions to quiet title existed until 1978, when this Court explicitly
acknowledged the abolition of the doctrine’s application in New Mexico. Brosseau v.
N.M. State Highway Dep’t, 1978-NMSC-098, ¶¶ 10-12, 92 N.M. 328, 587 P.2d 1339.
Despite the abolition of the doctrine of common law sovereign immunity, the limited
waiver of immunity now codified as Section 42-6-12 was not repealed, nor was Maes
overruled.

{4} In the following year, the Legislature statutorily resurrected governmental
immunity in actions concerning real property. See 1979 N.M. Laws, ch. 110, § 1
(codified as NMSA 1978, § 42-11-1 (1979)). That enactment prohibited 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.” Id.

{5} Regardless of the Brosseau Court’s abolition of common law sovereign immunity
and the Legislature’s imposition of statutory governmental immunity, Section 42-6-12
was not repealed or amended. Although application of sovereign immunity can produce
inequitable results, we will not judicially repeal an immunity that the Legislature lawfully
created unless such immunity violates the United States or the New Mexico
Constitution.

{6} With this context in mind, we turn to the factual and procedural background for
each case, which we present separately.

A. The Valencia County Case

1NMSA 1978, Section 42-6-12 (1947), was formerly compiled as NMSA 1941, Section 25-1312 (1947),
NMSA 1953, § 22-14-12 (1947), and finally as Section 42-6-12. See Belen, 2019-NMCA-044, ¶ 2 n.1. The
statute remains unchanged since its enactment in 1947. Compare 1947 N.M. Laws, ch. 150, § 1, with §
42-6-12. We refer to the statute using the contemporary compilation citation except where analyzing the
enacting legislation’s title as it pertains to the construction of the statute by this Court in Maes, 1958-
NMSC-115, ¶¶ 9-10.
{7} Belen Consolidated School District (Belen) decided to sell real property, in which
it holds the title, in order to “fund school activities” and initiated an action to quiet title in
order to obtain marketable title. Belen initiated a quiet title action to remove the cloud on
the title to the property and named the Board of County Commissioners of Valencia
County (Valencia) along with other persons, governmental entities, and
nongovernmental entities as defendants. In its complaint, Belen described the property
and alleged that Valencia “claimed an interest in the property and sought conveyance of
the property to [Valencia]” in 2010.

{8} Instead of answering and asserting it had superior title to the property, Valencia
moved the district court to dismiss the complaint. Although it avoided directly claiming
any title to the subject property, Valencia’s motion asserted an interest in the property.

Notwithstanding [Belen’s] vague reference to [Valencia] County’s interest,
the County has for decades and continues to maintain the real property as
a park and sports facility for the benefit of the youth of the County. The
County has continuously expended funds and man-hours to provide for
improvements, fencing and maintenance. [Valencia] desires that the real
property continue to be utilized as a park for the County’s youth. 2

Regardless of who claims or has superior title, Valencia argued that Section 42-11-1
prohibited naming Valencia as a defendant in an action to quiet title because it was a
political subdivision of the State. 3

{9} Belen responded that Section 42-6-12 waives statutory immunity created by
Section 42-11-1. Belen argued that because Brosseau abolished common law
sovereign immunity, the limited waiver established by Section 42-6-12 should be
broadened to permit quiet title suits against the State and its political subdivisions.
Belen also requested that, if the district court was inclined to dismiss its claim based on
immunity, Belen be allowed to amend its complaint to “assert a claim for inverse
condemnation.”

{10} At the hearing on its motion to dismiss, Valencia argued that Section 42-11-1
granted Valencia broad immunity and that the limited waiver of immunity in Section 42-
6-12 did not apply in this case. Valencia also argued that allowing Belen to amend the
complaint to assert a claim for inverse condemnation would be futile because Belen was
now barred from bringing any claim by the three-year statute of limitations. See NMSA

2Valencia also moved for dismissal based on an argument that Belen’s complaint did not state Valencia’s
claim of interest “with sufficient factual detail to give [Valencia] reasonable notice of the basis of the
claim.” The Court of Appeals did not address this argument, and Valencia did not pursue this argument
before this Court, and so we consider the argument abandoned. See Elane Photography, LLC v. Willock,
2013-NMSC-040, ¶ 70, 309 P.3d 53 (observing that this Court has discretion to decline to address
arguments that are not fully briefed and supported on appeal).
3Belen’s complaint describes the property in question as “Tracts 38-A-1-B and 40-A-1, as shown on Map
114 of the Surveys of the Middle Rio Grande Conservancy District.” We observe that although the
property is classified as tax-exempt, according to online records of the Valencia County Assessor, the
property’s taxable value is assessed, with Belen shown as owner of the property.
1978, § 42A-1-31(B) (1981) (establishing a three-year statute of limitations “from the
date of the taking or damaging”). Regardless of whether it had title to the property,
Valencia’s position was that it has the right to use the property without initiating a
condemnation action and without providing compensation. This position clearly
frustrated the district court. As a result, in denying Valencia’s motion to dismiss, the
district court colorfully, but perhaps not entirely inaccurately, opined that 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.”4

{11} Valencia petitioned the Court of Appeals for a Writ of Error pursuant to Rule 12-
503 NMRA. The Court of Appeals reversed the district court, determined that the
governmental immunity created by Section 42-11-1 barred quieting title against
Valencia and that there was no applicable statutory waiver, and remanded the Valencia
case “for entry of an order dismissing the action against Valencia.” Belen, 2019-NMCA-
044, ¶¶ 1, 14. Belen petitioned this Court for certiorari.

B. The Catron County Case

{12} Gregory A. Nash and Susie K. Nash (collectively “Nash”) filed a complaint to
quiet title to real property and named the Board of County Commissioners of Catron
County (Catron) as one of a number of defendants, who “may claim an [adverse]
interest in the Property.” The complaint alleged that Catron “may claim an interest in the
Property pursuant to that certain Warranty Deed recorded in the Office of the County
Clerk for Catron County, on October 9, 1968, in Book #2, at Page 52,” and that Catron
“may not agree with the location of the boundary line” between their respective
properties. In response, Catron filed a motion to dismiss “pursuant to Rule 1-012
NMRA” based on the immunity created by Section 42-11-1 and stated, “Notwithstanding
[Nash’s] vague reference to [Catron’s] interest, [Catron] has for decades and continues
to maintain the real property as part of its courthouse complex.” 5

{13} Catron acknowledged that this Court abolished the practice of applying the
common law doctrine of sovereign immunity in actions to quiet title. Nevertheless, like
Valencia, Catron argued that Section 42-11-1 reestablished a broad grant of
governmental immunity in response to the Brosseau Court’s abolition of common law

4We observe that other governments have recognized the benefit of permitting an action to quiet title
against the government. In England, although the common law recognized the doctrine of sovereign
immunity, the sovereign was nonetheless subject to the “petition of right” which permitted quieting title
against the sovereign. See United States v. Lee, 106 U.S. 196, 205, 208 (1882) (discussing the use of the
petition of right as a means to resolve a subject’s claim against the crown to quiet title). Further, the
federal government recognized the benefit of resolving claims of title to real property that have been
clouded when one of the claimants is the federal government by enacting the federal Quiet Title Act. See
28 U.S.C. § 2409a(a) (1986) (“The United States may be named as a party defendant in a civil action
under this section to adjudicate a disputed title to real property in which the United States claims an
interest, other than a security interest or water rights.”).
5Catron also initially argued that dismissal was proper because the complaint was not properly served.
However, prior to the hearing on the motion to dismiss, Catron withdrew improper service as a basis for
dismissal of the complaint.
sovereign immunity. Catron consequently concluded that Section 42-11-1 prohibited
naming it as a defendant in this case.

{14} Nash responded, as Belen had, that following Brosseau, Section 42-6-12 should
be construed as a broad waiver of immunity that permits quieting title against Catron.
Nash argued alternatively that even if Section 42-6-12 remains as a limited waiver of
immunity, due process prohibits applying immunity to bar naming Catron as a defendant
in this action to quiet title.

{15} Catron responded to Nash’s due process argument by asserting that
constitutional due process was satisfied because Nash had a remedy: “inverse
condemnation.” Catron argued that inverse condemnation was Nash’s exclusive remedy
to satisfy due process, regardless of whether Nash failed to exercise that exclusive
remedy within the three-year statute of limitations.

{16} The district court stated that it believed that Section 42-6-12 and Section 42-11-1
were “in conflict,” but granted Catron’s motion to dismiss, reluctantly observing that
although it was “disturbing sometimes to think that the county can just come in and take
somebody’s property . . . it sounds like there are other remedies . . . that could have
happened in this case.” The Court of Appeals affirmed the district court. Belen, 2019-
NMCA-044, ¶¶ 1, 14. Nash petitioned this Court for certiorari.

II. ANALYSIS

{17} “The well-being of every community requires that the title to real estate therein
shall be secure, and that there be convenient and certain methods of determining any
unsettled questions respecting it.” Arndt v. Griggs, 134 U.S. 316, 321 (1890). Under
general principles of sovereignty, “‘[t]he power of the state to regulate the tenure of real
property within her limits, and the modes of its acquisition and transfer, and the rules of
its descent, and the extent to which a testamentary disposition of it may be exercised by
its owners, is undoubted.’” Id. at 321 (quoting United States v. Fox, 94 U.S. 315, 320
(1876)).

{18} The parties’ arguments on appeal are substantially similar to those presented to
the respective district courts. Valencia and Catron argue that the State lawfully
exercised its power to regulate property when it enacted Section 42-11-1 in response to
the Brosseau Court’s abolition of the judicially created doctrine of sovereign immunity.
Belen and Nash argue that this Court should apply Brosseau to broadly construe
Section 42-6-12 to allow a plaintiff to quiet title against the State and its political
subdivisions because the public interest requires “that such clouds be removed in order
that land be put to its full potential use.” Brosseau, 1978-NMSC-098, ¶ 11. Belen and
Nash alternatively argue that, if Section 42-6-12 does not constitute a waiver of
governmental immunity in actions to quiet title, Section 42-11-1 violates due process
insofar as it allows Valencia and Catron to avoid the quiet title action. See Brosseau,
1978-NMSC-098, ¶ 12 (opining that “sovereign immunity may not be interposed to bar
quiet title actions if its effect is to deny one a remedy for the taking of his property
without compensation”).
{19} Although it appears that title to the respective properties may have been clouded
by Valencia and Catron, unless the immunity created by statute violates the constitution,
the Legislature has lawfully acted within its power to regulate the tenure of property
within New Mexico. Regarding Nash’s and Belen’s constitutional argument, neither
party fully developed a constitutional claim. We therefore decline to address their due
process argument in this opinion.

A. Standard of Review

{20} “We review de novo a district court’s order granting or denying a motion to
dismiss under Rule 1-012(B)(6) NMRA” for the failure to state a legally viable claim.
State Engineer of N.M. v. Diamond K Bar Ranch, LLC, 2016-NMSC-036, ¶ 12, 385 P.3d
626. Whether the Legislature waived governmental immunity is an issue of statutory
construction that we also review de novo. Ramirez v. N.M. Children, Youth & Families
Dep’t, 2016-NMSC-016, ¶ 13, 372 P.3d 497.

B. The Legislature Lawfully Imposed Statutory Governmental Immunity in
Actions to Quiet Title

{21} “In Hicks v. State, 1975-NMSC-056, ¶ 9, 88 N.M. 588, 544 P.2d 1153,
superseded by statute as recognized by Upton v. Clovis Mun. Sch. Dist., 2006-NMSC-
040, ¶ 8, 140 N.M. 205, 141 P.3d 1259, this Court abolished the common law doctrine
of sovereign immunity. As the counties acknowledge, “In New Mexico . . . common-law
sovereign immunity—as opposed to statutory immunity—has been repealed for over 30
years since this Court’s landmark decision in Hicks. . . . [N]o one should doubt the
broader scope of what this Court has previously described as Hicks’s sweeping
abolition of sovereign immunity.” State ex rel. Hanosh v. State ex rel. King, 2009-
NMSC-047, ¶ 10, 147 N.M. 87, 217 P.3d 100 (internal quotation marks and citation
omitted).

{22} Even though Hicks abolished the doctrine of sovereign immunity in all respects,
the Brosseau Court explicitly acknowledged the abolition as it pertained to actions to
quiet title. The Brosseau Court observed that “the doctrine of sovereign immunity was
an out-moded, archaic doctrine” and that “[t]here are presently in New Mexico no
conditions or circumstances which could rationally support the doctrine of sovereign
immunity.” 1978-NMSC-098, ¶¶ 10-11 (internal quotation marks and citation omitted).

{23} That said, “[t]he common law now recognizes a constitutionally valid statutory
imposition of sovereign immunity, and such immunity must be honored by the courts
where the legislature has so mandated.” Torrance Cnty. Mental Health Program, Inc. v.
N.M. Health & Env’t Dep’t, 1992-NMSC-026, ¶ 16, 113 N.M. 593, 830 P.2d 145 (internal
quotation marks and citation omitted). Within limits, it is clear that the Legislature may
statutorily impose sovereign immunity, so this Court must resolve whether the scope of
the immunity created by Section 42-11-1 and the waiver of immunity established by
Section 42-6-12 permit the present actions to quiet title against the counties.
1. The Legislature reacted to the abolition of common law sovereign immunity
and imposed a broad grant of statutory immunity

{24} Less than three months after the holding of Brosseau was announced, the
Legislature in its next session enacted a new law entitled: “RELATING TO
GOVERNMENTAL IMMUNITY; GRANTING IMMUNITY FROM CERTAIN SUITS,
ACTIONS, CASES OR LEGAL PROCEEDINGS INVOLVING REAL PROPERTY;
PROVIDING EXCEPTIONS.” See 1979 N.M. Laws, ch. 110, § 1. This law was codified
under Article VI (“Quieting Title”) as Section 42-11-1 (“Granting immunity; providing for
exceptions”). We presume that the enactment of Chapter 110, Section 1 of New Mexico
Laws of 1979 was a reaction to Brosseau. See State v. Chavez, 2008-NMSC-001, ¶ 21,
143 N.M. 205, 174 P.3d 988 (“This Court presumes that the Legislature is aware of
existing case law and acts with knowledge of it.”).

{25} It is clear from the language of the statute that the Legislature intended to grant
broad immunity to the State and its political subdivisions.

The state of New Mexico and its political subdivisions or any of their
branches, agencies, departments, boards, commissions, instrumentalities
or institutions are granted immunity from and may not be named 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.

Section 42-11-1 (emphasis added).

{26} We observe that by including the term “any” the Legislature enacted a broad
grant of immunity. We also observe that by including the phrase “except as specifically
authorized by law” the Legislature recognized that the waiver in Section 42-6-12, which
was not repealed, now applies to the immunity created by Section 42-11-1. See Noice
v. BNSF Ry. Co., 2016-NMSC-032, ¶ 13, 383 P.3d 761 (“[T]he only permissible
justification for a repeal by implication is when the earlier and later statutes are
irreconcilable. Repeals by implication are rare and should be found only if necessary to
make the later-enacted law work, and even then only to the minimum extent necessary.”
(internal quotation marks and citation omitted)); see also N.M. Bldg. & Constr. Trades
Council v. Dean, 2015-NMSC-023, ¶ 15, 353 P.3d 1212 (observing that this Court
“operate[s] from a working assumption that the Legislature . . . is well informed about
the law”(omission in original)).

{27} The parties agree that Section 42-6-12 is the only relevant waiver of immunity.
See Belen, 2019-NMCA-044, ¶¶ 10-12. The parties, however, disagree about the scope
of that waiver.

2. The Legislature intended Section 42-6-12 to be a limited waiver

{28} As previously stated, since 1958 this Court has recognized that the scope of the
Section 42-6-12 waiver is limited to “aiding a mortgagee who discovers that the State
has acquired an interest in the mortgaged property and [who] is unable to pass a
marketable title to the purchaser at a foreclosure sale.” Maes, 1958-NMSC-115, ¶ 10.
Belen and Nash urge this Court to revisit the Maes Court’s construction in light of
Brosseau. We do so and decline to overrule the Maes Court’s interpretation of Section
42-6-12. Although this construction may produce an inequitable result, expanding the
scope of the waiver would contravene the legislative intent of Section 42-11-1 and
Section 42-6-12.

{29} “Our ultimate goal in statutory construction is to ascertain and give effect to the
intent of the Legislature. It is the high duty and responsibility of the judicial branch of
government to facilitate and promote the legislature’s accomplishment of its purpose.”
State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.2d 1022 (internal quotation
marks and citations omitted). This Court “begin[s] by looking at the language of the
statute itself.” Id. ¶ 9. However, when necessary to determine the intent of the
Legislature, “we also consider the history and background of the statute.” Id. ¶ 10
(internal quotation marks and citation omitted).

{30} Section 42-6-12 provides,

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.

Reviewing the plain language, we cannot say that it manifests a clear, singular
construction. Depending on how a reader interprets the arrangement of the words,
Section 42-6-12 could be construed to be (1) a broad waiver of immunity for the
purpose of ascertaining title and the purpose of adjudicating foreclosure of a mortgage
or other lien or (2) a narrow waiver of immunity “for the limited purpose of aiding a
mortgagee who discovers that the State has acquired an interest in the mortgaged
property and [who] is unable to pass a marketable title to the purchaser at a foreclosure
sale.” See Maes, 1958-NMSC-115, ¶ 10 (construing Section 42-6-12 to be a narrow
waiver of immunity). Nash and Belen argue for the first construction. Valencia and
Catron argue for the second construction. Regardless of the argument, the plain
language does not unquestionably evince the Legislature’s intent. We must therefore
also consider the history and background of the statute.

{31} When the statute was compiled under Article VI (“Quieting Title”), the compiler
added a heading to Section 42-6-12 that states, “Consent of state in quiet title and
foreclosure suits,” which could be read to suggest that the Legislature waived statutory
immunity in two types of suits: actions to quiet title and foreclosure actions. However,
we have previously stated that “[a]ny editorial comment or headnote by the compiler of
a compilation statute is not part of the law.” Miller v. Doe, 1962-NMSC-113, ¶ 5, 70 N.M.
432, 374 P.2d 305. Because an editorial comment or headnote by the compiler is
created in the process of compilation and was not created by the Legislature, it is of little
to no use in determining legislative intent. See id. 6 However, a full title of the 1947
enrolled and engrossed bill was drafted and enacted by the Legislature. Therefore, this
Court will consider this enacted title when construing the Legislature’s intent in enacting
the 1947 statute. See State ex rel. State Corp. Comm’n v. Old Abe Co., 1939-NMSC-
046, ¶ 27, 43 N.M. 367, 94 P.2d 105 (“We take it that the title is quite properly to be
considered a part of an act, particularly where it is a constitutional requirement that
every act have a title, as is true in this state.”); see also Harriett v. Lusk, 1958-NMSC-
006, ¶ 15, 63 N.M. 383, 320 P.2d 738 (“The preamble may be used to clarify an act and
aid in its interpretation. The title may also be utilized as an aid in determining the
intention of the legislature and to resolve doubts as to meanings.” (emphasis added)
(citation omitted)). “The subject of every bill shall be clearly expressed in its title, and no
bill embracing more than one subject shall be passed except general appropriation bills
and bills for the codification or revision of the laws[.]” N.M. Const. art. IV, § 16. (“[B]ut if
any subject is embraced in any act which is not expressed in its title, only so much of
the act as is not so expressed shall be void.”).

{32} The enrolled and engrossed bill, Chapter 150 of New Mexico Laws of 1947, was
titled,

AN ACT GIVING THE CONSENT OF THE STATE OF NEW MEXICO TO
BE SUED RESPECTING THE ADJUDICATION OR FORECLOSURE OF
ANY LIEN AGAINST REAL OR PERSONAL PROPERTY AGAINST
WHICH THE STATE HOLDS OR CLAIMS A LIEN; PROVIDING THE
PROCEDURE THEREFOR AND THE NATURE OF THE RELIEF THAT
MAY BE GRANTED.

This title clarifies the legislative intent to create a limited waiver of immunity, which is to
say consent of the state to be named in a lawsuit where the state holds or claims a lien
against real or personal property and where that lien is being adjudicated or foreclosed.

{33} The full title of the enrolled and engrossed bill was included as an annotation
when the law was originally codified in Volume 2 of the 1951 supplement to the 1941
compilation of the New Mexico Statutes Annotated. See NMSA 1941, § 25-1312 (1947).
That annotation was likewise included without alteration or amendment when the statute
was recompiled. See NMSA 1953, § 22-14-12 (1947). Although the Maes Court did not
directly comment on the title of the enrolled and engrossed bill, it specifically determined
that the statute did not include actions “to extinguish the state’s fee-simple title.” See
1958-NMSC-115, ¶¶ 9-10, 12 (ordering the district court to dismiss the complaint

6The Legislature subsequently adopted the Uniform Statute and Rule Construction Act, NMSA 1978, §§
12-2A-1 to -20 (1997), which generally applies to statutes and rules enacted after the date of the uniform
act. See § 12-2A-1(B). Although the Uniform Statute and Rule Construction Act does not apply in this
instance because Section 42-6-12 was enacted before adoption of this uniform act, we note that the
Legislature agreed with the common law canon of construction stated in Miller and specifically chose to
codify it. See NMSA 1978, § 12-2A-13 (1997) (“Headings and titles may not be used in construing a
statute or rule unless they are contained in the enrolled and engrossed bill or rule as adopted.”).
seeking to quiet title because “[w]e find no omnibus legislative consent to bring suit
against the State to quiet title”).

{34} Although Brosseau specifically acknowledged the abolition of common law
sovereign immunity as applied to actions to quiet title, Brosseau did not alter the
Legislature’s intent for Section 42-6-12 to create a limited waiver of immunity. See
1978-NMSC-098, ¶¶ 6, 10-11. When the Legislature enacted Section 42-11-1 to
effectively establish statutory immunity, it did so aware of the limited waiver it had
previously granted. See Chavez, 2008-NMSC-001, ¶ 21 (observing that this Court
presumes the Legislature is aware of “existing [statutory and] case law and acts with
knowledge of it”). Section 42-11-1 and Section 42-6-12 are not in conflict, and the Maes
Court’s construction of Section 42-6-12 remains good law. This Court must honor the
Legislature’s imposition of statutory immunity. See Torrance Cnty. Mental Health
Program, Inc., 1992-NMSC-026, ¶ 16.

C. We Decline to Address the Undeveloped Constitutional Argument

{35} A state “has control over property within its limits; the condition of ownership of
real estate therein . . . is subject[] . . . to obligations, private or public, and the modes of
establishing titles thereto.” Arndt, 134 U.S. at 320-21. “[T]here can be no legal right . . .
against the authority that makes the law on which that right depends.” Kawananakoa v.
Polyblank, 205 U.S. 349, 353 (1907). Even so, the Fifth Amendment to the United
States Constitution and Article II, Section 20 of the New Mexico Constitution prohibit the
government from taking property “for public use “without just compensation.” And both
the Fourteenth Amendment to the United States Constitution and Article II, Section 18
of the New Mexico Constitution provide that no person shall be deprived “‘of life, liberty
or property without due process of law.’” Bounds v. State ex rel. D’Antonio, 2013-
NMSC-037, ¶ 50, 306 P.3d 457.

{36} Belen and Nash independently assert that their due process rights have been
violated if neither can assert a claim to quiet title against the respective county. Both
procedural and substantive concerns can arise in a due process claim. Bounds, 2013-
NMSC-037, ¶ 50. “Procedural due process requires the government to give notice and
an opportunity to be heard before depriving an individual of liberty or property.” Id.
(internal quotation marks and citation omitted). “Substantive due process cases inquire
whether a statute or government action shocks the conscience or interferes with rights
implicit in the concept of ordered liberty.” Id. (internal quotation marks and citation
omitted). However, “[t]he threshold question in evaluating a due process challenge is
whether there is a deprivation of liberty or property.” Id. ¶ 51 (alteration in original)
(emphasis added) (internal quotation marks and citation omitted). Neither Nash nor
Belen established an actual deprivation of property.

{37} Assuming that Nash’s or Belen’s property was “taken or injured,” neither appears
to have timely asserted a claim for inverse condemnation, which is the proper and
exclusive remedy. See Mesich v. Bd. of Cnty. Comm’rs of McKinley Cnty., 1942-NMSC-
054, ¶ 15, 46 N.M. 412, 129 P.2d 974 (observing that “‘owner’ as used in statutes
providing for eminent domain proceedings includes all persons who have an interest or
estate in the property taken or injured” (citation omitted)); Townsend v. State ex rel.
State Highway Dep’t, 1994-NMSC-014, ¶¶ 6-9, 117 N.M. 302, 871 P.2d 958
(recognizing “that inverse condemnation is an exclusive remedy to recover damages
when property is taken for public use . . . without paying just compensation” and
identifying “the applicable statute of limitations” to bar some of the claims for inverse
condemnation).

{38} Belen advanced two additional reasons why this Court should consider its
undeveloped due process argument. Belen contended that it might be unable to assert
an inverse condemnation claim against Valencia because (1) Belen’s property, as public
land, might not be subject to constitutional protection from takings and (2) Belen may
not be a “person” authorized to bring a claim under the Eminent Domain Code, NMSA
1978, §§ 42A-1-1 to -34 (1981, as amended through 2001). We are not convinced and
note that United States v. 50 Acres of Land, 469 U.S. 24, 31 (1984), holds that the
“most reasonable” construction of the “reference to ‘private property’ in the Takings
Clause of the Fifth Amendment . . . encompass[es] the property of state and local
governments . . . .” In so holding, the United States Supreme Court observed that “the
loss to the public entity, to the persons served by it, and to the local taxpayers may be
no less acute than the loss in a taking of private property.” Id. In addition, the Eminent
Domain Code clearly states that person “includes . . . governmental entity,” which is “the
state or local public body,” and local public body is “a political subdivision of the state.”
NMSA 1978, § 42A-1-2(E), (G), (H) (defining the terms governmental entity, local public
body, and person).

{39} Although we observe that in England, the origin of our common law, the “petition
of right” was used as “a practical and efficient remedy for the invasion by the sovereign
power of individual rights,” we do not adjudge the wisdom of the Legislature’s choice to
create governmental immunity from being named a defendant in actions to quiet title.
See Lee, 106 U.S. at 205, 208 (internal quotation marks and citation omitted) (“In all
cases where the title to property came into controversy between the crown and a
subject, . . . the petition of right presented a judicial remedy . . . .”); see also State ex rel.
Taylor v. Johnson, 1998-NMSC-015, ¶ 21, 125 N.M. 343, 961 P.2d 768 (“It is the
particular domain of the legislature, as the voice of the people, to make public policy.”
(brackets omitted) (internal quotation marks and citation omitted)); State ex rel. Clark v.
Johnson, 1995-NMSC-048, ¶ 20, 120 N.M. 562, 904 P.2d 11 (“[I]t is not within the
province of this Court to evaluate the wisdom of an act of either the legislature or the
Governor.”); cf. GandyDancer, LLC v. Rock House CGM, LLC, 2019-NMSC-021, ¶ 23,
453 P.3d 434 (acknowledging that this Court “should refrain from creating policy”).

{40} We decline to exercise our discretionary authority under Rule 12-321(B) NMRA
to reach the constitutional argument, because neither Belen nor Nash presents an
appropriately developed case—one where sovereign immunity, interposed to bar quiet
title actions, has denied the plaintiff a remedy for the taking of property without
compensation.

III. CONCLUSION
{41} Based on the foregoing, we affirm the Court of Appeals.

{42} IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice