EASTHAM v. PUBLIC EMPLOYEES' RETIREMENT ASS'N BD., 89 N.M. 399 (1976)

"5. The Defendants R. C. Morgan, Frank Bateman and Lilburn Homan are former legislators now retired and receiving annuities as legislative members of the Public Employees Retirement Association.

"6. In addition to the Defendants Morgan, Bateman and Homan, there are thirty-one additional persons who are retired members of the New Mexico Legislature receiving annuities as legislative members of the Public Employees Retirement Association.

"7. There are twenty additional legislative members of the Public Employees Retirement Association who qualify in all respects for retirement, except that they have not reached retirement age.

"8. That all legislative members of the Public Employees Retirement Association who have either retired or who have completed all requirements for retirement, except that all reaching retirementPage 401age, are subject to the jurisdiction of this Court.

"9. There has been no notification of the existence of the action given to any of the thirty-one additional individuals who fall within the same class as the Defendants Morgan, Bateman and Homan, or to the twenty individuals who are legislative members of the Public Employees Retirement Association, and have completed all requirements for retirement except that of age."

"4. The fifty-one additional persons who are either retired legislators or persons eligible to retire as soon as they reach the required age are not so numerous as to make it impracticable to bring them on before the Court as required by Rule 23 of the Rules of Civil Procedure, and therefore a class action is not authorized.

"5. Due process of law as guaranteed by the Federal and State Constitutions requires a person affected by a class action be given notice thereof, which has not been done in this case, the absence of which notice requires a dismissal of the Complaint."

"* * * (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest, or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. * * *"

"It was settled in this jurisdiction as early as 1924 that all persons whose interests will necessarily be affected by any judgment or order in a particular case are necessary and indispensable parties, and that the court cannot proceed to a judgment without such party.American Trust Sav. Bank of Albuquerque v.Scobee,29 N.M. 436,453,224 P. 788. That position has been consistently followed by this court.Burguete v. Del Curto,49 N.M. 292,163 P.2d 257;State ex rel. Del Curto v. District Court,51 N.M. 297,183 P.2d 607;Sullivan v. Albuquerque Nat'lTrust Sav. Bank,51 N.M. 456,188 P.2d 169;Keirsey v.Page 402Hirsch,58 N.M. 18,265 P.2d 346, 43 A. L.R.2d 929;Swayze v. Bartlett,58 N.M. 504,273 P.2d 367;State ex rel. Skinner v. District Court,60 N.M. 255,291 P.2d 301;Sellman v. Haddock,62 N.M. 391,310 P.2d 1045;State ex rel. Reynolds v. W. S.Ranch Co.,69 N.M. 169,364 P.2d 1036;StateGame Comm'n v. Tackett,71 N.M. 400,379 P.2d 54; Rule of Civil Procedure 19 (§21-1-19, N.M.S.A. 1953)."

"InAmerican Trust Savings Bank of Albuquerquev. Scobee,29 N.M. 436,453,224 P. 788,790, we stated:

" 'There is a general rule that all persons, whose interests will necessarily be affected by any decree is [in] a given case, are necessary and indispensable parties, and the court will not proceed to a decree without them. Where such necessary parties cannot for any reason be brought before the court, there is nothing to be done except to dismiss the bill, for the suit is inherently defective. * * *'

Other decisions to like effect areState GameCommission v. Tackett,71 N.M. 400,379 P.2d 54;Sellman v. Haddock,62 N.M. 391,310 P.2d 1045;Keirsey v. Hirsch,58 N.M. 18,265 P.2d 346, 43 A. L.R.2d 929;Hugh K. Gale Post No. 2182 v. Norris,53 N.M. 58,201 P.2d 777;Page v. Town of Gallup,26 N.M. 239,191 P. 460."

"Rule 23(c)(2) provides that, in any class action maintained under subdivision (b)(3), each class member shall be advised that he has the right to exclude himself from the action on request or to enter an appearance through counsel, and further that the judgment, whether favorable or not, will bind all class members not requesting exclusion. To this end, the court is required to direct to class members 'the best notice practicable under the circumstances,includingindividual notice to all members who can beidentified through reasonable effort.' We think the import of this language is unmistakable. Individual notice must be sent to all class members whose names and addresses may be ascertained through reasonable effort.

"The Advisory Committee's Note to Rule 23 reinforces this conclusion. See 28 U.S.C. App., p. 7765. The Advisory Committee described subdivision (c)(2) as 'not merely discretionary' and added that the 'mandatory notice pursuant to subdivision (c)(2) . . . is designed to fulfill requirements of due process to which the class action procedure is of course subject.' Id., at 7768. The Committee explicated its incorporation of due process standards by citation toMullane v. Central HanoverBank Trust Co.,339 U.S. 306[70 S.Ct. 652,94 L.Ed. 865] (1950), and like cases.

"InMullanethe Court addressed the constitutional sufficiency of publication notice rather than mailed individual notice to known beneficiaries of a common trust fund as part of a judicial settlement of accounts. The Court observed that notice and an opportunity to be heard were fundamental requisites of the constitutional guarantee of procedural due process. It further stated that notice must be 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' * * *"

"1. Plaintiffs are citizens and taxpayers of the State of New Mexico.

"2. Plaintiff Eastham was a member of the Legislature of the State of New Mexico during the calendar years 1957 and 1958 and 1967 through 1972, inclusive.

"3. Plaintiff Eastham is a legislative member of the Public Employees Retirement Association, but has no paid, service credit standing to his name.

"4. Plaintiff Hoover is a member of the State Legislature of the State of New Mexico, and has been continuously since 1965 when his term of office will expire December 31, 1974, and he is notPage 404running for re-election. Plaintiff Hoover is a legislative member of the Publice Employees Retirement Association and has three years of service credit.

"10. Neither Plaintiff has any reasonable expectation of receiving an annuity as a legislative member of the Public Employees Retirement Association.

"11. Neither Plaintiff has the required number of years of contributing service credit to entitle him to receive an annuity at the required age as a legislative member of the Public Employees Retirement Association.

"12. Neither Plaintiff has entered into a binding agreement to pay additional moneys to the Public Employees Retirement Association to bring their paid contributing service credit to a total of five years each."

"2. Plaintiffs' only interest in the constitutionality or interpretation of the Public Employees Retirement Act as it affects legislative members is as citizens and taxpayers.

"3. As citizens and taxpayers, Plaintiffs have no standing to sue."

"* * *. We hold that to attain standing in a suit arguing the unlawfulness of governmental action, the complainant must allege that he is injured in fact or is imminently threatened with injury, economically or otherwise. We therefore overruleRuidoso State Bank v. Brumlow, supra, [81 N.M. 379,467 P.2d 395(1970)], and its progeny,Southern Union Gas Co. v. New Mexico Pub. Serv.Com'n.,82 N.M. 405,482 P.2d 913(1971), andHubbard Broadcasting, Inc. v. City of Albuquerque,82 N.M. 164,477 P.2d 602(1970)."

"* * *. It is not the duty of this or any other court to sit in judgment upon the action of the legislative branch of the government, except when the question is presented by a litigant claiming to be adversely affected by the legislative act on the particular ground complained of.Schmidt v.Indianapolis,168 Ind. 631,80 N.E. 633, 14 L.R.A. (N.S.) 787, 120 Am.St.Rep. 385;Matter of Damon,10 Cal.App. 542,102 P. 684;Cram v. Chicago, etc.,R. Co.,85 Neb. 586,123 N.W. 1045, 26 L.R.A. (N.S.) 1028, 19 Ann.Cas. 170, and note. * * *"

"It does not appear from the complaint that appellant will be affected by the acts sought to be enjoined in any other manner than any other taxpayer of the state. Nor does it appear what effect, if any, the proposed action will have, either to increase or decrease the taxes of the appellant, or of any taxpayer of the state; nor that any personal, property, or civil right of any individual is threatened with injury by the proposed acts, unless it can be said to be an individual right to prevent the violation of the Constitution, * * *. Does this situation call for or warrant the interference of a court of equity at the behest of a citizen taxpayer?"

"The constitutionality of a statute is not in itself a cause of action, nor a head of equity jurisdiction. [Citations omitted.]

"So we concluded that, as a citizen, appellant is without standing to question the constitutionality of the act in question, and we proceed to the consideration of the other question. Has a taxpayer such an interest as entitles him to an injunction to restrain devastavit of public funds?"

"Not having found any legal or logical principle to support a taxpayer's suit to enjoin the expenditure of state funds, we are constrained to hold that he has no such right in this state. * * *"

"Although we are not inclined to extend the doctrine inHannett, supra, particularly in view of the apparent trend to enlarge the area in which taxpayer suits are permitted, neither are we ready to overrule this decision.State ex rel. Castillov. New Mexico State Tax Comm., [79 N.M. 357,443 P.2d 850(1968)], and the footnote on page 359."

"As desirable as it may be to have our opinion on questions of public importance as soon as possible, it is always dangerous to 'function in the abstract.' Borchard on Declaratory Judgments at 34 and 35 (2d ed. 1941). We must avoid 'ill-defined controversies over constitutional issues.'United Public Workers of America v.Mitchell,330 U.S. 75,67 S.Ct. 556,91 L.Ed. 754(1947). 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.'Baker v. Carr,369 U.S. 186,204,82 S.Ct. 691,7 L.Ed.2d 663(1962). CompareFlast v. Cohen,392 U.S. 83,88 S.Ct. 1942,20 L.Ed.2d 947(1968); andProtestants andOther Americans, etc., et al. v. Watson[132 U.S.App.D.C. 329]407 F.2d 1264(1968). Although a determination of what constitutes the necessary personal stake depends as much on the issues involved as on the parties plaintiff, here the required nexus is not present; nor do we believe that either the plaintiff or the intervenor could allege by amendments to their complaints the 'personal stake' required."