Strict scrutiny also applies under an equal protection analysis if the statute focuses upon inherently suspect classifications such as race, national origin, religion, or status as a resident alien. Nowak et al., supra, at 448-49; Tribe, supra, § 16-13, at 1465-66; Garcia v. Albuquerque Pub. Schs. Bd. of Educ., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct.App. 1980) (citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976)), writ quashed, 95 N.M. 426, 622 P.2d 1046 (1981). Under this analysis, the burden is placed upon the state to show that the restriction of a fundamental right or the delineation of suspect classes supports a compelling state interest, and that the legislation accomplishes its purposes by the least restrictive means.
In concluding that the legislature was merely being consistent in waiving immunity for public employees on the same basis as for public entities, the court noted a rational basis: 95 N.M. 391, 622 P.2d 699 (N.M.Ct.App. 1980). 95 Wis.2d 357, 290 N.W.2d 524.
See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); see also Torres v. Village of Capitan, 92 N.M. 64, 69, 582 P.2d 1277, 1282 (1978); Vandolsen v. Constructors, Inc., 101 N.M. 109, 112, 678 P.2d 1184, 1187 (Ct.App.), cert. denied, 101 N.M. 77, 678 P.2d 705 (1984).Sanchez v. M.M. Sundt Constr. Co., 103 N.M. 294, 297, 706 P.2d 158, 161 (Ct.App. 1985); Garcia v. Albuquerque Pub. Schools Bd. of Educ., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct.App. 1980), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981). We have observed that a statute infringing fundamental rights or involving suspect classes must support a compelling state interest to escape judicial invalidation.
It is only when a public employee is acting within the scope of his employment and in furtherance of the business of a public entity that immunity and the Tort Claims Act have any relevance. See Garcia v. Albuquerque Pub. Schools Bd. of Educ., 95 N.M. 391, 622 P.2d 699 (Ct. App. 1980)(Sutin, J., specially concurring), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981); cf. Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct. App. 1980). Therefore, it is only when the public entity is itself acting through its employee with the right to control the manner in which the details of work are to be done, SCRA 1986, 13-403, that the Tort Claims Act comes into play.
Our research has disclosed that almost all, if not all, of the reported precedents from the other jurisdictions, applying a "rational basis" equal protection analysis, have rejected equal protection challenges to comprehensive, statewide governmental tort claims acts, where the challenges were based upon the argument that the broad immunity granted to governmental tortfeasors, as opposed to nongovernmental tortfeasors, is not a rationally based distinction in furtherance of a legitimate state interest. See, e.g., Stone v. State, 106 Cal.App.3d 924, 165 Cal.Rptr. 339, 343 (1980) (involving alleged failure to provide sufficient police protection to public), opinion as modified; Sadler v. New Castle County, 524 A.2d 18, 24-25 (Del.Super.Ct. 1987), aff'd, 565 A.2d 917, 923-24 (Del. 1989); Davis v. Chicago Housing Authority, 136 Ill.2d 296, 144 Ill.Dec. 224, 226-27, 555 N.E.2d 343, 345-46 (1990); syl. pt. 4, Cross v. City of Kansas City, 230 Kan. 545, 638 P.2d 933 (1982); Garcia v. Albuquerque Public Schools Board of Education, 95 N.M. 391, 622 P.2d 699, 702 (Ct.App. 1980), writ quashed, 95 N.M. 426, 622 P.2d 1046 (1981); Carroll v. County of York, 496 Pa. 363, 437 A.2d 394, 396-97 (1981); Robson v. Penn Hills School District, 63 Pa.Cmwlth. 250, 437 A.2d 1273, 1276 (1981); Stout v. Grand Prairie Independent School District, 733 S.W.2d 290, 295-96, 297-98 (Tex.Ct.App. 1987), writ of error ref'd (no reversible error) (Tex. Oct. 7, 1987), cert. denied, 485 U.S. 907, 108 S.Ct. 1082, 99 L.Ed.2d 241 (1988).
It is apparent that some retreat did occur in New Mexico by passage of the closed-end state tort claims act, but even that regression could not serve to justify the doubly regressive effect ulcerated onto justice for the injuries whenever now inflicted by this state. Garcia v. Albuquerque Public Schools Bd. of Ed., 95 N.M. 391, 622 P.2d 699 (1980). The Colorado court in Evans, 482 P.2d at 969-70 (footnotes omitted) related:
It is only when a public employee is acting within the scope of his employment and in furtherance of the business of a public entity that immunity and the Tort Claims Act have any relevance. See Garcia v. Albuquerque Pub. Schools Bd. of Educ., 95 N.M. 391, 622 P.2d 699 (Ct.App. 1980) (Sutin, J., specially concurring), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981); cf. Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct.App. 1980). Therefore, it is only when the public entity is itself acting through its employee with the right to control the manner in which the details of work are to be done, SCRA 1986, 13-403, that the Tort Claims Act comes into play.
The Legislature responded in 1976 by enacting the Act, 1976 N.M. Laws, ch. 58 § 1 (Sections 41-4-2 through 41-4-27, N.M.S.A. 1978), to retain governmental immunity except in eight enumerated classes of activity. Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980); Garcia v. Albuquerque Public Schools Bd., 95 N.M. 391, 622 P.2d 699 (Ct.App. 1980), cert. quashed, (January 27, 1981). See generally Kovnat, TORTS: SOVEREIGN AND GOVERNMENTAL IMMUNITY IN NEW MEXICO, 6 N.M.L.Rev. 249 (1976).
Important policies underlying enactment of the Tort Claims Act were to protect the public treasury, to enable the government to function unhampered by the threat of legal actions that would inhibit the administration of traditional state activities, and to enable the government to effectively carry out its services. Garcia v. Albuquerque Pub. Schs. Bd. of Educ., 95 N.M. 391, 394, 622 P.2d 699, 702 (Ct.App. 1980). Other legislative purposes underlying the Tort Claims Act were expressed in Jaramillo in the context of an equal protection issue.
Also, numerous New Mexico cases, although not addressing the question, have included an action under the Tort Claims Act naming various governmental entities. See, e.g., Wells v. County of Valencia, 98 N.M. 3, 644 P.2d 517 (1982); Tompkins v. Carlsbad Irrigation District, 96 N.M. 368, 630 P.2d 767 (Ct.App. 1981); Sugarman v. City of Las Cruces, 95 N.M. 706, 625 P.2d 1223 (Ct.App. 1980); Garcia v. Albuquerque Public Schools Board of Education, 95 N.M. 391, 622 P.2d 699 (Ct.App. 1980); O'Brien v. Middle Rio Grande Conservancy District, 94 N.M. 562, 613 P.2d 432 (Ct.App. 1980). We erred in implying that a governmental entity cannot be a named defendant, and to the extent that Silva and Wittkowski state otherwise, they are hereby modified.