Garcia Ex Rel. Estate of Garcia v. Mt. Taylor Millwork, Inc. , 111 N.M. 17 ( 1989 )

HARTZ, Judge

(specially concurring).

I do not share the majority’s view of the applicability of NMSA 1978, Section 52-5-1 (Repl.Pamp.1987). Nevertheless, Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973) compels this court to follow the New Mexico Supreme Court’s interpretation of NMSA 1978, Section 52-1-19 (Repl.Pamp. 1987) in Dupper v. Liberty Mutual Insurance Co., 105 N.M. 503, 734 P.2d 743 (1987). Because I believe that the Dupper court would have upheld the application of the premises exception in the circumstances of this case, I concur in the result.

I agree with the majority that statutes ordinarily are presumed to operate prospectively rather than retroactively. I disagree with the majority’s interpretation of that maxim. A statute is applied retroactively only if it affects causes of action arising before the effective date of the statute. In Wilson v. New Mexico Lumber and Timber Co., 42 N.M. 438, 81 P.2d 61 (1938) our supreme court wrote:

“As applied to statutes the words ‘retroactive’ and ‘retrospective’ may be regarded as synonymous and may broadly be defined as having reference to a state of things existing before the act in question. A retrospective law may be defined more specifically as one ‘which is made to affect acts or transactions occurring before it came into effect, or rights already accrued, and which imparts to them characteristics, or ascribes to them effects, which were not inherent in their nature in the contemplation of the law as it stood at the time of their occurrence.’ Black on Interpretation of Laws, 247.”

Id. at 440, 81 P.2d at 62 (quoting Ashley v. Brown, 198 N.C. 369, 372, 151 S.E. 725, 727 (1930)). There is no precedent for the view apparently held by the majority that a statute is retroactive if it overturns a judicial decision predating the effective date of the statute. Because the accident in this case occurred after the effective date of Section 52-5-1, that statutory provision applies.

The majority opinion suggests that the legislature did not intend Section 52-5-1 to cause the judiciary to re-examine its precedents under the Workers’ Compensation Act. Yet that may well have been precisely the legislative intent. The pertinent language of Section 52-5-1 first appeared in the House Business and Industry Committee substitute for House Bill 347 on the thirty-fourth day of the 1987 Legislative Session, about three weeks after the Dupper decision. In any event, by definition of “effective date,” Section 52-5-1 should be applied to any cause of action arising after its effective date. There is nothing peculiar about the judiciary’s re-examining its precedents. Dupper itself overruled New Mexico precedents. See, e.g., McDonald v. Artesia Gen. Hosp., 73 N.M. 188, 386 P.2d 708 (1963) (worker denied recovery for accident occurring while worker still on employer’s premises but while worker was returning home after her work for the employer had ceased). Surely the legislature that enacted Section 52-5-1 did not intend to enshrine all prior decisions of the New Mexico Supreme Court interpreting the Workers’ Compensation Act and forbid any future reconsideration of those decisions. The intent of Section 52-5-1 was to provide the courts with legislative guidance in interpreting the Workers’ Compensation Act in future decisions, whether those decisions involve matters of first impression or matters that had been considered in earlier opinions.

Claimant’s answer brief contends that Section 52-5-1 is inapplicable because it is unconstitutional. I disagree. The statute does not violate the separation-of-powers doctrine. The same branch of government that enacts the statute can enact definitions, statements of policy, and canons of interpretation as well. An interpretive statute would infringe on the province of the judicial branch only if it attempted to “correct” a prior judicial interpretation by imposing the new interpretation on cases arising before the effective date of the statute. A retroactive statute of that type “would make the legislature a court of last resort.” 1A N. Singer, Sutherland Statutory Construction § 27.04, at 464 (Sands 4th ed. 1985 rev.) (footnote omitted).

A more difficult issue is the applicability of Article IV, Section 18 of the New Mexico Constitution, which states: “No law shall be revised or amended, or the provisions thereof extended by reference to its title only; but each section thereof as revised, amended or extended shall be set out in full.” Although two New Mexico appellate decisions have voided statutes for violating this constitutional provision, both relied on the language prohibiting a law from being “extended”: Yeo v. Tweedy, 34 N.M. 611, 286 P. 970 (1929) (extending laws relating to appropriation of water); State v. Armstrong, 31 N.M. 220, 243 P. 333 (1924) (extending National Prohibition Act). That language is not applicable here. The question is whether Section 52-5-1 constitutes an improper revision or amendment.

There are two reasons that Section 52-5-1 does not violate Article IV, Section 18. First, the constitutional provision should not be applied to interpretive statutes (discussed in 1A N. Singer, supra, Chapter 27), as opposed to amendatory statutes (discussed in id. Chapter 22). Absurdly burdensome consequences would flow from construing Article IV, Section 18 to require that every bill enacting an interpretive statute must recite in full all the statutes to which it applies. Consider, for example, Chapter 12, Article 2, of the New Mexico Statutes, entitled “Statutory Construction.” Among other provisions, that article contains rules of construction which define common terms such as “shall,” “person,” and “age of majority.” NMSA 1978, § 12-2-2 (Repl.Pamp.1988). Certainly a bill enacting such a provision should not have to “set out in full” virtually every statute in New Mexico on the ground that virtually every statute would be “revised” or “amended” by the new rule of construction. “[I]t will not be presumed that the people have intended to limit [the legislature’s] power or practice by unreasonable or arbitrary restrictions.” State v. Armstrong, 31 N.M. at 255, 243 P. at 347. Tondre v. Garcia, 45 N.M. 433, 440, 116 P.2d 584, 588 (1941) upheld against a challenge pursuant to Article IV, Section 18, a legislative practice that “is widely prevalent and has been much employed in this state and ought not to be destroyed or curtailed unless clearly unconstitutional.”

Second, the provisions of Article IV, Section 18 relating to revisions or amendments were not intended to apply to statutes in the form of Section 52-5-1. Section 22.16 of Sutherland Statutory Construction, supra, discusses such constitutional prohibitions. The text states:

In the absence of such limitations an act may be amended by merely referring to its title and providing that certain words, phrases, or provisions shall be inserted, or stricken out, or both. It must only state the place in the prior act where the change should be introduced. Such an amendment requires an examination and comparison of the prior act to understand what change was effected. Such an enactment is properly termed a “blind” amendment.

In the period prior to the adoption of these constitutional provisions, due to the absence of frequent revisions or codifications, this method of amendment resulted in considerable confusion on the state of the law, especially after one act had been amended several times. Moreover, it was often used intentionally to secure the enactment of laws whose effect a large part of the legislature did not understand or contemplate. The constitutional provisions discussed above were adopted to remedy this situation. [Footnotes omitted.]

Language to the same effect in People ex rel. Drake v. Mahaney, 13 Mich. 481 (1865) was quoted by our supreme court in Armstrong, 31 N.M. at 257-58, 243 P. at 348. The Armstrong court appeared to agree with Mahaney insofar as it applied constitutional restrictions on revisions or amendments, but distinguished Mahaney because the additional language in the New Mexico Constitution relating to extensions governed the result in Armstrong. Thus, the constitutional restrictions on amendments and revisions apparently are intended to prevent legislation, such as that which still occasionally emanates from the United States Congress, consisting of a series of words or phrases to insert in or delete from an existing statute. No purpose would have been served by requiring 1987 N.M. Laws, Chapter 235, Section 45, which enacted Section 52-5-1, to recite the New Mexico Workers’ Compensation Act in its entirety. See State v. Trivitt, 89 N.M. 162, 548 P.2d 442 (1976) (Art. IV, § 18 not violated by statute imposing death penalty for every “capital felony” without identifying what crimes are capital felonies; legislature presumed to know the laws in existence). Article IV, Section 18 should not be stretched to wreak havoc on the legislative process. Therefore, Section 52-5-1 is constitutional and can be applied in this case to determine whether recovery is barred by Section 52-1-19.

That task, however, is for the supreme court. This court has the authority to interpret new statutory language; but in the present case we would be interpreting statutory language identical to language already interpreted by the state supreme court. Although using the new lenses provided by Section 52-5-1, we would be looking at the same words in Section 52-1-19. Our supreme court has instructed us that we are “governed by the precedents of this Court[,] Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973) * * * even when a [subsequent] United States Supreme Court decision seems contra.” State v. Manzanares, 100 N.M. 621, 622, 674 P.2d 511, 512 (1984), cert. denied, 471 U.S. 1057, 105 S.Ct. 2123, 85 L.Ed.2d 487, reh’g denied, 472 U.S. 1013, 105 S.Ct. 2715, 86 L.Ed.2d 729 (1985). United States Supreme Court precedent is certainly as compelling as a legislative enactment that may alter a canon of statutory construction. Thus, it would be contrary to the direction of our supreme court for this court to overrule the construction of the language of Section 52-1-19 provided by Dupper.