¶1Specially concurring.
¶2I join fully in Judge Alarid’s opinion for the Court.
¶3I write separately only to suggest the demise of the construction given to Article IV, Section 34, of the New Mexico Constitution by Bradbury & Stamm Construction Co. v. Bureau of Revenue, 70 N.M. 226, 372 P.2d 808 (1962). The constitutional provision reads: “No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.” Bradbury & Stamm held that the provision does not restrict the legislature’s authority to reduce the interest rate paid by the state on tax refunds arising from pending cases because “[t]he requirement that the state pay interest creates no right in the taxpayer, but only a privilege subject to being changed.” Id. at 238, 372 P.2d at 817.
¶4Thus, Bradbury & Stamm distinguished the state from private litigants with respect to the application of the constitutional provision. That distinction was not firmly rooted even in 1962; Bradbury & Stamm was a three-to-two decision. Today the roots are weak indeed. I suspect that most present readers of Bradbury & Stamm would find the dissent of Justice Moise to be much the more persuasive opinion. Particularly in light of the elimination of sovereign immunity for torts by Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), any reason for distinguishing the state from other litigants is substantially undermined. Even before Hicks the New Mexico Supreme Court suggested its discomfort with Bradbury & Stamm by citing Justice Moise’s dissent as authority in a per curiam opinion on rehearing in State ex rel. Bare-la v. New Mexico State Board of Education, 80 N.M. 220, 223, 453 P.2d 583, 586 (1969).
¶5I do not read Hillelson v. Republic Insurance Co., 96 N.M. 36, 627 P.2d 878 (1981) as reinvigorating Bradbury & Stamm. The opinion in Hillelson did not approve of Bradbury & Stamm; the opinion merely distinguished Bradbury & Stamm on the obvious ground that the case then before the Court involved claims between private parties. Id. at 38, 627 P.2d at 880.
¶6Judge Alarid’s opinion today properly limits Bradbury & Stamm. When the time comes, I am confident that Bradbury & Stamm will be overruled in its interpretation of Article IV; Section 34, of the New Mexico Constitution.