Under separation of powers, courts may not inquire into statutory policy and may not substitute their views in the formulation of legislative provisions or classifications for those of the legislature. Garcia v. Albuquerque Public Schools Board of Education, 95 N.M. 391, 622 P.2d 699 (Ct.App.), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981). As held in Espanola Housing Authority v. Atencio, 90 N.M. 787, 568 P.2d 1233 (1977), there is a presumption of the validity and regularity of legislative enactments.
(See ยงยง 41-4-2, 41-4-22, N.M.S.A. 1978 (1982 Repl. Pamph.)). A divided panel of this court held, in Garcia v. Albuquerque Public Schools Bd., 95 N.M. 391, 622 P.2d 699 (Ct.App. 1980), that the limitation of liability to special kinds of governmental activity did not violate the equal protection clause because of arbitrary or unreasonable classification. The New Mexico Supreme Court, by quashing its writ of certiorari, declined to review that decision.
The Legislature responded in 1976 by enacting the Act, 1976 N.M. Laws, ch. 58 ยง 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).
Accordingly, our standard for reviewing the attendance law is whether it bears some rational relation to a legitimate state interest. Garcia v. Albuquerque Public Schools Bd., 95 N.M. 391, 622 P.2d 699 (Ct.App. 1980); see also Note, Home Instruction: An Alternative to Institutional Education, 18 J.Fam.L. 353 (1979); Note, Home Education in America: Parental Rights Reasserted, 49 UMKC L.Rev. 191 (1981); Stocklin-Enright, The Constitutionality of Home Education: The Role of the Parent, The State and The Child, 18 Willamette L.Rev. 563 (1982). It is in the first instance a legislative question as to whether a classification is reasonable.
The tests to determine the validity of a statute challenged under the United States and New Mexico equal protection clauses are the same. Garcia v. Albuquerque Public Schools Bd., 95 N.M. 391, 622 P.2d 699 (Ct.App. 1980). The test here, where the classification is not suspect and the statute does not go to fundamental rights, is whether the classification is reasonable.
Unless the challenged statute adversely affects fundamental personal rights, i.e., voting, or is drawn upon suspect classifications, i.e., race, religion, or alienage, the reviewing court presumes the constitutionality of the statutory discriminations and requires only that the classification challenged be rationally related to a legitimate State interest. Torres v. Village of Capitan, 92 N.M. 64, 582 P.2d 1277 (1978); Garcia v. Albuquerque Public Schools Bd., 95 N.M. 391, 622 P.2d 699 (Ct.App. 1980), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981). A court is not to inquire into the wisdom, policy, or justness of the classification, and is not to substitute its views in selecting and classifying for those of the Legislature.
Thus, we follow the vast majority of courts which have held that statutes limiting or barring government liability are measured by the rational basis test. See, e.g., Aubertin v. Board of County Commissioners of Woodson County, Kansas, 588 F.2d 781 (10th Cir. 1978); Boyce v. United States, 523 F. Sup. 1012 (E.D.N.Y. 1981); Peddycoart v. Birmingham, 354 So.2d 808 (Ala. 1978); Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983); Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979); Winston v. Reorganized School District R-2, 636 S.W.2d 324 (Mo. 1982); Garcia v. Albuquerque Public Schools Board of Education, 95 N.M. 391, 622 P.2d 699 (Ct.App. 1981); Paulson v. County of Pierce, 99 Wash.2d 645, 664 P.2d 1202 (1983); Binder v. Madison, 72 Wis.2d 613, 241 N.W.2d 613 (1976). Under the rational basis test, "[t]he court's function . . . is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way."
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.
The Tort Claims Act was enacted in response to the judicial abolition of sovereign immunity and acts to protect the public treasury. Garcia v. Albuquerque Pub. Schools Bd. of Educ., 95 N.M. 391, 622 P.2d 699 (Ct.App. 1980). In so protecting the treasury, immunity is reenacted, subject to a number of limited exceptions, Sections 41-4-5 to -12, and governed by a number of procedural and substantive provisions, Sections 41-4-4 and -13 to -25.
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.