interpreting New Mexico state law and upholding the Governor's power to replace a member of the State Museum Board of Regents appointed to a fixed term
How later courts described this case
- interpreting New Mexico state law and upholding the Governor's power to replace a member of the State Museum Board of Regents appointed to a fixed term
- applying New Mexico law
- “A motion to dismiss under Fed. Rules Civ. Proc., rule 12(b)(6) admits all well-pleaded facts in the complaint as distinguished from conclusory allegations.”
- “A motion to dismiss under Fed. Rules Civ. Proc., rule 12(b) admits all well-pleaded facts in the complaint as distinguished from conclusory allegations.”
Written by the judges who cited it.
The opinion
BREITENSTEIN, Circuit Judge
(concurring in the result).
I concur in the result but cannot concur in much of the supportive reasoning. I am particularly disturbed by the discussion of thé decision of the Supreme Court in Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 , 44 LW 4337. The statement that, “the governmental action complained of must deprive the petitioner of a right which has its genesis in state law, and the protective shield of 1983 extends only to those interests” is followed by quotation *392 from Paul v. Davis which omits its footnote 5, at 710, 96 S.Ct. at 1165 , 44 LW at 4342. That footnote reads:
“There are other interests, of course, protected not by virtue of their recognition by the law of a particular State, but because they are guaranteed in one of the provisions of the Bill of Rights which has been ‘incorporated’ into the Fourteenth Amendment. Section 1983 makes a deprivation of such rights actionable independently of state law. See Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961).”
I agree with the quoted footnote and am fearful that its omission may lead to a misunderstanding of the extent of the rights protected by § 1983.
Judge BARRETT expresses his agreement with the observations contained herein interpretive of Paul v. Davis, supra.