Garcia v. Albuquerque Public Schools Board of Education ( 1981 )

OPINION

LOPEZ, Judge.

This case was brought in the District Court of Bernalillo County to recover damages for personal injuries suffered by a twelve year old student who was struck by his public school teacher. Because the New Mexico Tort Claims Act accords govern-? mental immunity to the defendants, the Court dismissed the complaint. We affirm.

Plaintiffs assert the Tort Claims Act, § 41-4-1 et seq., N.M.S.A.1978 violates Art. II, §§ 4 and 18 of the New Mexico Constitution and the 14th Amendment of the United States Constitution. They argue that the Tort Claims Act denies injured parties equal protection of the law since only those parties may recover damages who were injured by the negligence of state and public employees performing their duties in any of eight enumerated areas of governmental activity.

The Tort Claims Act reinstates governmental immunity, previously abolished by the New Mexico Supreme Court in Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), except in the eight following classes of activity: 1) the operation or maintenance of motor vehicles, aircraft, and watercraft; 2) the operation or maintenance of any building, public park, machinery, equipment or furnishings; 3) the operation of airports; 4) the operation of certain public utilities and services; 5) the operation of certain medical facilities; 6) health care services; 7) the maintenance and existence of highways, streets and certain appurtenances; 8) certain unlawful acts of law enforcement officers. Sections 41-4-5 through 41-4-12, N.M.S.A.1978. Plaintiffs argue that, rather than grant blanket immunity with specified exceptions, the Legislature should have enacted blanket liability with specified exceptions. They maintain that to disallow liability in most, but not all, of the areas of governmental activity is to discriminate arbitrarily among persons injured by a government entity or employee.

We do not agree. The standards for violation of the equal protection clauses of the United States and New Mexican Constitutions are the same. Anaconda Co. v. Property Tax Dept., 94 N.M. 202, 608 P.2d 514 (Ct.App.1979), cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Unless the challenged statute trammels fundamental personal rights or is drawn upon inherently suspect classifications, such as race, religion, or alienage, the court presumes the constitutionality of the statutory discrimination and requires only that the classification challenged be rationally related to a legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). See, Espanola Housing Authority v. Atencio, 90 N.M. 787, 568 P.2d 1233 (1977); McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975); Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965); see also, Anaconda, supra. If any state of facts can reasonably be conceived which will sustain the classification, the statute is valid. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Atencio, supra. Further, every presumption is in favor of the validity of legislative enactments. Id.; McGeehan, supra. The court will not enquire into the wisdom, policy, or justness of the legislation. Id. We cannot substitute our view in selecting and classifying for that of the legislature. Michael J. Maloof & Co. v. Bureau of Revenue, 80 N.M. 485, 458 P.2d 89 (1969).

In 1976, the Supreme Court of Kansas considered a case very similar to the one before us. After the courts had abolished sovereign immunity, the Kansas legislature, just like our own, reinstated it. Their law reimposed governmental immunity, but excepted certain governmental entities and local governments. In rejecting plaintiff’s claim that the statutory scheme violated the equal protection clause of the 14th Amendment because it discriminated arbitrarily, the court aptly observed that any scheme which retained some governmental immunity would be discriminatory.

Regardless of the classification scheme used by the courts or by the legislatures, if some immunity is retained certain persons injured by the government will recover, while others injured, to an equal or greater degree, will not recover. This allegedly discriminatory situation will occur whether the governmental immunity is based on the “governmental-propriety” distinction, the “discretionary-nondiscretionary” distinction, or an “open-ended” or a “close-ended” statute.

[S]ome classification scheme is necessary, and ... any classification scheme adopted is a policy decision. If the court declares the policy judgment made by the legislature ... unconstitutional, then any classification scheme which retains any governmental immunity is unconstitutional.

Brown v. Wichita State University, 219 Kan. 2, 18-19, 547 P.2d 1015, 1029, appeal dismissed, 429 U.S. 806, 97 S.Ct. 41, 50 L.Ed.2d 67 (1976).

Other courts, too, have refused to uphold constitutional challenges to legislative enactments of partial sovereign immunity on the basis of denial of equal protection. Sullivan v. Midlothian Park District, 51 Ill.2d 274, 281 N.E.2d 659 (1972); Aubertin v. Board of County Commissioners, 588 F.2d 781 (10th Cir. 1978). In California, Justice Traynor authored an opinion holding constitutional legislation which allowed suits, in certain circumstances, against public medical facilities, unless they were mental institutions. County of Los Angeles v. Superior Court, 62 Cal.2d 839, 44 Cal.Rptr. 796, 402 P.2d 868 (1965). The legislation was constitutional because a rational basis could be found for the classification. In both Michigan and Wisconsin, the courts have held that state law which applies sovereign immunity to some governmental functions, but not to others, does not offend the equal protection clause. Anderson v. City of Detroit, 54 Mich.App. 496, 221 N.W.2d 168 (1974); Cords v. State, 62 Wis.2d 42, 214 N.W.2d 405 (1974). Again, the statutes were upheld because there was a rational basis for the classification they employed.

The following reasons justify the Legislature’s determination to partially retain governmental immunity: 1) There is a need to protect the public treasuries. Kovnat, Torts: Sovereign and Governmental Immunity in New Mexico, 6 N.M.L.Rev. 349 (1976). 2) Partial immunity enables the government and its various subdivisions to function unhampered by the threat of time and energy consuming legal actions which would inhibit the administration of traditional state activities. Brown, supra. 3) In order to effectively carry out its services, many of which are financially unprofitable and which would not be provided at a reasonable cost by private enterprise, the government needs the protection provided by some immunity. Id.

Because, 1) any classification scheme involving sovereign immunity is a policy decision, Brown, supra, 2) it is not the function of the courts to dictate policy to the Legislature, Maloof, supra, and 3) the classification adopted offends no fundamental rights or suspect classes and there are rational bases for the reinstatement of partial sovereign immunity, we hold the Tort Claims Act does not violate the equal protection clauses of the United States and New Mexico Constitutions.

Plaintiffs next argue that the Tort Claims Act is arbitrary and unreasonable in granting immunity to certain public employees, but not to others, depending on the governmental activity in which they are engaged. Section 41 — 4—4 (A), N.M.S.A.1978 (Supp.1979). This is essentially the same argument that we just rejected. In waiving immunity for public employees on the same basis as for public entities, the Legislature is merely being consistent. Subsection (C) of § 41^4 — 4 provides in part:

A governmental entity shall pay any settlement or any final judgment entered against a public employee for:

(1) any tort which was committed by the public employee while acting within the scope of his duty; or

(2) a violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico, which occurred while the public employee was acting within the scope of his duty.

Thus, if public employees were not immune from liability, the government would be responsible for all claims against the public employees and there would be no governmental immunity. Immunity for public employees is also essential to insure the unhampered performance of their governmental duties. If every action taken by a public employee is subject to judicial review, he will be reluctant to take actions v/hich are necessary for the good of the general public. The United States Supreme Court recently upheld the constitutionality of a California statute which provided immunity for public employees who determine when to parole or release a prisoner. The court found that the statute rationally furthered a reasonable policy on which it did not have authority to pass judgment. Martinez v. State of California, 44 U.S. 277,100 S.Ct. 553, 62 L.Ed.2d 481 (1980). The New Mexico Legislature acted within its powers in limiting the liability of public employees in the same manner as it limited the liability of the entity for whom they work.

Lastly, plaintiffs claim that the Act, as amended, is unconstitutional because it does not distinguish between malicious and negligent torts. This argument is essentially the same as the main argument advanced by plaintiffs. We have answered it above.

The lower court’s order dismissing plaintiffs’ complaint is affirmed, but to make clear the nature of the dismissal we amend the order dismissing plaintiffs’ complaint to read “without prejudice”. See, Telephonic, Inc. v. Montgomery Plaza Company, Inc., 87 N.M. 407, 534 P.2d 1119 (Ct.App.1975).

IT IS SO ORDERED.

SUTIN, J., specially concurs. WALTERS, J., dissents.