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.
Public school teachers are considered public employees covered by the NMTCA. Garcia v. Albuquerque Pub. Schs. Bd. of Educ., 622 P.2d 699, 701-02 (N.M. Ct. App. 1980). A public employee acts within the scope of his duties, even if he or she engages in tortious or criminal activity, so long as "a connection between the public employee's actions at the time of the incident and the duties the public employee was requested, required or authorized to perform."
The Legislature responded in 1976 by enacting the [New Mexico Tort Claims] 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).Cole v. City of Las Cruces, 99 N.M. 302, 303, 657 P.2d 629, 630 (1984).
Instead, Petitioners cite two New Mexico Court of Appeals cases and one federal district court case that itself cites a third New Mexico Court of Appeals case. SeeE. Spire Commc'ns, Inc. v. Baca , 269 F. Supp. 2d 1310, 1323 (D.N.M. 2003) (citing Valdez v. Wal-Mart Stores, Inc., 1998-NMCA-030, ¶ 6, 124 N.M. 655, 954 P.2d 87 ); Mieras v. Dyncorp , 1996-NMCA-095, ¶ 16, 122 N.M. 401, 925 P.2d 518 ; Garcia v. Albuquerque Pub. Schs. Bd. of Educ. , 1980-NMCA-081, ¶ 4, 95 N.M. 391, 622 P.2d 699. The Real Parties in reply make the apt observation that the cited Court of Appeals cases predate Breen and Griego .
Id. at 758, 887 P.2d at 752. See also Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 693, 763 P.2d 1153, 1158 (1988); Espanola Housing Authority v. Atencio, 90 N.M. 787, 788, 568 P.2d 1233, 1234 (1977); Board of Trustees of Las Vegas v. Montano, 82 N.M. 340, 343, 481 P.2d 702, 705 (1971); Garcia v. Albuquerque Pub. Sch. Bd., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct.App. 1981). This line of cases is still valid as an expression of the minimum scrutiny test for equal protection challenges to classifications.
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: