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State v. Druktenis1/30/2004
ase under the strictures of constitutional scrutiny, we are not willing under Fourteenth Amendment analyses to consider placing those interests at the level of a fundamental right and, therefore, they are placed at a level requiring rational basis scrutiny.
We are fully aware how this decision may impact the lives of those who are plainly not recidivists or a danger to society, although we suspect that will likely constitute relatively few. As to those individuals, it is at least arguable that constitutional scrutiny ought to require the burden to be on the State to show a substantial government interest, with concomitant factual support. There unquestionably has been a concern in the United States Supreme Court about employing rational basis scrutiny when the interest at stake is an important one and the legislation at hand is not simply social or economic in nature. See Rotunda & Nowak, supra, ยง 18.3, at 254 (discussing the United States Supreme Court's approach historically in regard to scrutiny and deference to legislative judgments, and suggesting "it is possible that the Court is moving towards converting the rationality test into a `reasonableness' test similar to that employed during the 1900-1936 era"). Our Supreme Court appears to have attempted to meet this concern in Richardson and Trujillo I through a tweaked intermediate scrutiny standard, as noted earlier in this opinion.
Further, this Court also attempted in Alvarez, 118 N.M. 732, 886 P.2d 461, and Corn v. N.M. Educators Fed. Credit Union, 119 N.M. 199, 889 P.2d 234 (Ct. App. 1994), to adopt a new scrutiny standard. Between Trujillo I and Trujillo III, this Court in Alvarez adopted a "heightened rational-basis review" that, we felt, was consistent with the scrutiny standard developed in Richardson and Trujillo I. Alvarez, 118 N.M. at 738, 886 P.2d at 467. The standard used in Richardson and Trujillo I was purportedly in line with the United States Supreme Court's heightened standard under which that Court would require the government to prove a substantial interest based on a "firm factual foundation." Alvarez, 118 N.M. at 738, 886 P.2d at 467 (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 458 (1985)). The heightened rational basis scrutiny adopted in Alvarez was different than the "traditional rational-basis review" in that under the traditional review "a statute will be upheld if there is any conceivable basis to support it whether or not that basis has a foundation in the record, whereas under the [heightened form], there must be either a factual foundation in the record to support the basis or a firm legal rationale to support the basis." Corn, 119 N.M. at 203-04, 889 P.2d at 238-39.
Trujillo III, however, "expressly overrule Alvarez and Corn to the extent that they adopt a fourth tier of review that ha not been utilized in [New Mexico Supreme Court] cases." Trujillo III, 1998-NMSC-031, 32. Yet Trujillo III went on to state: "However, the rational basis test that we articulate today subsumes that fourth tier and addresses the concerns that caused the Court of Appeals to adopt a fourth tier of review." Id. We are unable to discern what our Supreme Court meant by this statement. Having overruled Richardson's and Trujillo I's intermediate scrutiny analysis that was based on the United States Supreme Court's heightened scrutiny, and having overruled Alvarez's and Corn's heightened rational basis scrutiny, the statement that "the rational basis test that we articulate today subsumes that fourth tier" makes the status of rational basis scrutiny in New Mexico less than clear, particularly because the only rational basis test "articulated" by our Supreme Court in Trujillo III is nothing
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