when can you sue individuals who work for the government?

[Mankotto]

Jurisdiction

New Mexico

Hi there. After almost one year of dealing the the dysfunction of a building department in New Mexico, I finally decided I have to go to court to get injunctive relief and to get the court to order them to process my building permit. There just is no other way and they will not respond telling me what the problem is and how to fix it. There are 2 people in that agency who should be held accountable. Under what circumstances is it legal to name them personally as defendants (in addition to the department)? I know that they work for the local government and thus can "hide behind" that but I feel that they personally made the decisions to obstruct our process and that this is not normal behavior for that agency. Thank you for the advice.

 

[adjusterjack]

Posting on multiple sites isn't going to change the answers.

After almost one year of dealing the the dysfunction of a building department in New Mexico, I finally decided I have to go to court to get injunctive relief and to get the court to order them to process my building permit.

Building departments are typically parts of a city's government. You would have to sue the city for the acts of the department and its employees.

Governments are immune to lawsuits unless the lawsuits comply with the applicable tort claims statutes which have rigorous requirements. If you don't comply with those requirements within the applicable time frame you pretty much automatically lose.

If you file against only the two individuals you are likely to hit a brick wall.

I suggest you consult an attorney before you put your foot in the bear trap and have it chewed off.

they will not respond telling me what the problem is and how to fix it.

They have absolutely no obligation to tell you what the problem is.

It's entirely up to you to figure it out by studying the building codes and zoning laws.

You're not going to win on that basis.

Maybe you should be consulting a licensed contractor or architect, either of whom would know how to fix your permit application to comply with building codes and zoning laws.

 

[Tax Counsel]

Hi there. After almost one year of dealing the the dysfunction of a building department in New Mexico, I finally decided I have to go to court to get injunctive relief and to get the court to order them to process my building permit. There just is no other way and they will not respond telling me what the problem is and how to fix it. There are 2 people in that agency who should be held accountable. Under what circumstances is it legal to name them personally as defendants (in addition to the department)? I know that they work for the local government and thus can "hide behind" that but I feel that they personally made the decisions to obstruct our process and that this is not normal behavior for that agency. Thank you for the advice.

It's not injunctive relief you'd need to seek in your lawsuit. You'd sue for a writ of mandamus. "Ordinarily the legal action of mandamus is the proper remedy to compel the performance of an official act by a public officer." Heron v. Garcia, 1944-NMSC-058, ¶ 9, 48 N.M. 507, 153 P.2d 514, 515.

You would generally sue the state or local official or the board that is charged with the legal duty to carry out the requested action and the action sought must be ministerial in nature, i.e. it must be one in which the official has no discretion in undertaking. That means you sue the person or board that would be the one who has the power to grant the building permit and you are suing for that person or board to do some act that the law compels them to do when the requirements for that act have been satisfied. If the official has any discretion in approving or denying the request the writ will fail.

Note that in NM if you sue a state agency official for the writ you must file your writ petition with the state Supreme Court, if is it city, country, other local agency, that petition must be filed in state district court.

Whether to grant or deny a building permit is an act of discretion. Therefore, you can't seek the writ to compel the building department or the official who determines whether to grant the permit to give you that permit. If NM sets a firm deadline for when the building department must render its decision, you likely may seek mandamus to require the person or department to issue its decision.

A writ of mandamus is not a good DIY project for someone who is not an attorney. There are detailed requirements you need to meet for the writ to succeed. I strongly recommend you seek an attorney in your area who handles building permit matters. There may be some action you can do to get the building department to act without resorting to a lawsuit. A letter from the attorney might be all that is needed to get a response. If there isn't any administrative action you can take, the attorney can tell you what court action, if any, you may take to get the department to act.

 

[Tax Counsel]

Governments are immune to lawsuits unless the lawsuits comply with the applicable tort claims statutes which have rigorous requirements.

As the OP has described the problem, this is not a tort issue. The problem is simply that the Building Department hasn't taken any action on the request for 2+ years and the OP wants to get the court to order that the Building Department issue that determination now rather than waiting any further. Put another way, the OP wants the court to order the building department or the particular employee of the building department who is the ultimate decision maker to issue the decision. That is done by a writ of mandamus, not a tort claim. It's difficult to succeed on a mandamus action even with an attorney. A person doing it pro se is likely to fail just in meeting the pleading requirements for this kind of action. This is one of those things that if you want it to succeed, you need a lawyer.