N.M. Stat. § 44-6-2 (2026)

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.
                                      ANNOTATIONS

                           I.     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.

District court properly exercised jurisdiction. — Where the board of pharmacy
(board) notified defendants that they needed a pharmacy license to maintain their
children, youth and families department (CYFD) licenses because they were considered
"custodial care facilities" under the Pharmacy Act, §§ 61-11-1 through 61-11-28 NMSA
1978, and where defendants responded that they were not required to hold a pharmacy
license because they were not "custodial care facilities" but rather "community homes,"
and where defendants filed a complaint in district court seeking declaratory and
injunctive relief to prevent the Pharmacy Act and the board's regulations from applying
to defendants, and where the pharmacy board asserted that no actual controversy
existed and therefore the district court lacked subject matter jurisdiction to issue a
decision on the complaint for declaratory judgment and permanent injunction, the district
court did not err in exercising jurisdiction over defendants' complaint, because CYFD's
threats that defendants' licenses may be suspended or revoked demonstrated that the
complaint was ripe and demonstrated a direct and imminent harm to defendants due to
the pharmacy board's regulations, sufficient to establish standing. N.M. Boys & Girls
Ranch v. N.M. Bd. of Pharmacy, 2022-NMCA-047, cert. denied.

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.