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.
The New Mexico legislature enacted the New Mexico Tort Claims Act (NMTCA), N.M. S. A. § 41-4-1 et. seq. in response to the New Mexico Supreme Courts ruling in Hicks v. State, 544 P.2d 1153 (1975), which abolished governmental immunity. See Garcia v. Albuquerque Pub. Schs., 622 P.2d 699, 701 (N.M.Ct.App. 1980). The Act grants governmental entities and public employees, acting within the scope of their duties, immunity from tort liability unless it is specifically waived in eight classes of activities:
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).
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.
As such, the Legislature may reasonably restrict that right, as it has done in the TCA. Seeid. ¶ 24 (stating that the Legislature may reasonably restrict the right to sue the government for tort damages); Garcia v. Albuquerque Pub. Sch. Bd. of Educ., 1980–NMCA–081, ¶ 9, 95 N.M. 391, 622 P.2d 699 (recognizing that creating exceptions to sovereign immunity via the TCA is a function of the Legislature, not of the courts). {30} In sum, Plaintiff has failed to demonstrate that the absence of a TCA exception that would permit him to seek monetary damages from Defendants under the circumstances of this case renders the TCA unconstitutional.
Coyazo naturally urges us to apply the intermediate standard articulated by our Supreme Court in Trujillo v. City of Albuquerque, 110 N.M. 621, 623, 798 P.2d 571, 573 (1990) and Richardson v. Carnegie Library Restaurant, 107 N.M. 688, 698, 763 P.2d 1153, 1163 (1988). Defendants, just as naturally urge us to apply the rational basis test used by this court in Garcia v. Albuquerque Public Schools Board of Education, 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct.App. 1980) (holding that under a rational basis approach the Tort Claims Act grant of complete immunity to teachers and public school districts for claims arising from student disciplinary actions is constitutional), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981). The contours of the various standards used by the courts to test the constitutionality of legislative enactments are fully explained in the very recent case of Alvarez v. Chavez, 118 N.M. 732, 886 P.2d 461 (Ct.App. 1994) and need not be repeated here.