Wagner v. AGW Consultants5/24/2005
Trujillo, Trujillo subsumed the "heightened rational basis" analysis from those cases in the modern rational basis test. Thus, in the majority's words: "To successfully challenge the statute under this standard of review, Worker must demonstrate that the classification created by the legislation is not supported by a `firm legal rationale' or evidence in the record." Maj. Op. 24.
{39} I believe the language from Cleburne in fact creates a different test than the type of minimal scrutiny we usually associate with the rational basis test. See City of Cleburne, 473 U.S. at 455-60 (Marshall, J., concurring) (noting that the Court's analysis was at odds with traditional rational basis by seeming to require that the legislature has the burden to prove an act was constitutional, that the Court could sift through the record to find a firm factual foundation for an act's policy, and that legislation could not proceed incrementally). The traditional rational basis test is simply that the party challenging the legislation has the burden to prove "that the statute's classification is not rationally related to the legislative goal." Trujillo, 1998-NMSC-031, 14. "In rational basis scrutiny, `a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.'" State v. Druktenis, 2004-NMCA-032, 112, 135 N.M. 223, 86 P.3d 1050 (quoting FCC v. Beach Communications, 508 U.S. 307, 315 (1993)).
{40} I do not object to giving our rational basis test more teeth in some situations, if we clearly identify what triggers heightened scrutiny, just as the Court of Appeals did in Alvarez, 118 N.M. at 740, 886 P.2d at 469 (applying heightened rational basis when legislation implicated a significant interest). But I do not believe it is desirable or appropriate to do so at the expense of the traditional deferential test. If the majority really intends to read Trujillo as adopting a single, but broader rational basis test, I think the Court should provide a detailed explanation.
{41} On the other hand, if this Court feels constrained by the traditional rational basis test, I would prefer not to follow the lead of the United States Supreme Court. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne, 473 U.S. 432; Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985). In a confusing array of cases, the Court professes to have only one rational basis test, but sometimes appears to apply heightened scrutiny. See Laurence H. Tribe, American Constitutional Law ยง 16-33, at 1614 (2d ed. 1988) (concluding there is no coherent explanation for when heightened scrutiny is triggered). It seems to me that a better approach would be to give more flexibility to our intermediate scrutiny standard, and to forthrightly acknowledge that we are doing so.
Level of Scrutiny
{42} Equal protection challenges to legislative classifications that infringe on important, but not fundamental rights, or involve sensitive, but not suspect classes, must be analyzed under intermediate scrutiny. See Alvarez, 118 N.M. at 736, 886 P.2d at 465.
{43} This Court has recognized that the right of access to the courts is an implicit fundamental right. See Richardson v. Carnegie Library Rest., Inc., 107 N.M. 688, 696, 763 P.2d, 1153, 1161 (1988), overruled on other grounds by Trujillo, 1998-NMSC-031, 32; Otero v. Zouhar, 102 N.M. 482, 486, 697 P.2d 482, 486 (1985), overruled on other grounds by Grantland v. Lea Reg'l Hosp., Inc., 110 N.M. 378, 380, 796 P.2d 599, 601 (1990); Jiron v. Mahlab, 99 N.M. 425, 426, 659 P.2d 311, 312 (1983). In addition, and of utmost importance in thi
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