State v. Druktenis1/30/2004
involves an important right, certainly one more important and sensitive than rights restricted by primarily social and economic legislation. See Trujillo III, 1998-NMSC-031, 15. We think the interests asserted by Defendant here can be considered important ones.
That said, however, the interest contemplated under intermediate scrutiny must involve, and has not in United States Supreme Court or New Mexico cases developed beyond involvement of, a "sensitive" class, which, thus far, is limited to gender and illegitimacy. See id.; Marrujo, 118 N.M. at 757, 887 P.2d at 751; Richardson, 107 N.M. at 693-94, 763 P.2d at 1158-59; Pinnell, 1999-NMCA-074, 27; Rotunda & Nowak, supra, § 18.3, at 223, § 18.19, at 514 (illegitimacy), § 18.23, at 549 (gender). Even assuming the interest at stake is an important one, intermediate scrutiny is not required in this case. The interest cannot fit into "sensitive" classification required to bring such scrutiny into play. Convicted sex offenders are clearly not the type of the sensitive class of persons for whom the United States Supreme Court or our New Mexico courts have engaged intermediate scrutiny. Cf. Howell, 118 N.M. at 506, 882 P.2d at 547 (stating that, " hile the right to receive public assistance benefits is important, such right is a matter of statutory entitlement, and is not explicitly or implicitly guaranteed by the New Mexico Constitution" (citations omitted)).
Further, even though an important right is at stake, we do not believe it appropriate to attempt a heightened scrutiny coverage, shift the burden of proof, and require the State to lay an adequate evidentiary foundation to support its restriction of the right. Federal courts have employed a heightened scrutiny that places the burden on the state to prove a substantial government interest and requires a narrow tailoring of the government restriction (such as, for example, an individualized hearing) in certain cases in which fundamental rights are not involved. See Tribe, supra, § 16-32, at 1602-04. One such instance is when irrebuttable presumptions exist. Id. § 16-34, at 1618; see also Rotunda & Nowak, supra, § 18.3, at 222 n.28 (noting the problems in applying standards or tests to governmental action regulating important areas of human activity that have not been declared fundamental rights). Tribe notes that the United States Supreme Court has used "a range of intermediate approaches . . . when neither minimal nor strict review seems entirely appropriate," permitting consideration of "a variety of intermediate remedies." Tribe, supra, § 16-34, at 1618. " he Court itself has not always been candid about its use of intermediate review." Tribe, supra, § 16-33, at 1610. This type of heightened scrutiny was introduced in Richardson, 107 N.M. at 694-98, 763 P.2d at 1159-63, and in Trujillo I, 110 N.M. at 623-24, 798 P.2d at 573-74, in order to address what our Supreme Court perceived was an important enough right to shift the burden to the State to justify the restriction on what the Court perceived was a Fourteenth Amendment right. However, the heightened scrutiny appears to have been rejected in Trujillo III, 1998-NMSC-031, 17, 19, 36-38, where the Court overruled "the intermediate scrutiny analysis adopted in Richardson and Trujillo I," primarily, it appears, because it was "unduly burdensome so as to be intolerable," and because "evidence issues posed substantial problems for the district courts."
3. Under Rational Basis Scrutiny, the Notification Requirements Survive
When a fundamental right is not implicated, we must determine whether the statute is rationally related to a legitimate governmental purpose. See Howell, 118 N.M. at 505-06, 882 P.2d at 5
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|