Rodriguez v. Brand West Dairy

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 16:43:49 2016.08.23

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-029

Filing Date: June 30, 2016

Docket No. S-1-SC-35426

NOE RODRIGUEZ,

Worker-Respondent,

v.

BRAND WEST DAIRY, Uninsured Employer,

Employer-Respondent,

and

NEW MEXICO UNINSURED EMPLOYERS’ FUND,

Insurer-Petitioner,

Consolidated With:

MARIA ANGELICA AGUIRRE,

Worker-Respondent,

v.

M.A. AND SONS, INC.

Employer-Respondent,

and

FOOD INDUSTRY SELF INSURANCE
FUND OF NEW MEXICO,

Insurer-Respondent.

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And

Docket No. S-1-SC-35438

NOE RODRIGUEZ,

Worker-Respondent,

v.

BRAND WEST DAIRY, Uninsured Employer,

Employer-Petitioner,

and

NEW MEXICO UNINSURED EMPLOYERS’ FUND,

Insurer,

Consolidated With:

MARIA ANGELICA AGUIRRE,

Worker-Respondent,

v.

M.A. AND SONS, INC.

Employer-Petitioner,

and

FOOD INDUSTRY SELF INSURANCE
FUND OF NEW MEXICO,

Insurer-Petitioner.

ORIGINAL PROCEEDINGS ON CERTIORARI
Victor S. Lopez and David L. Skinner, Workers’ Compensation Judges

Hector H. Balderas, Attorney General

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Richard P. Bustamante, Special Assistant Attorney General
Santa Fe, NM

for Insurer-Petitioner New Mexico Uninsured Employers’ Fund

Maestas & Suggett, P.C.
Paul Maestas
Albuquerque, NM

for Employer-Respondents and Employer-Petitioners Brand West Dairy, M.A. and Sons,
Inc. and Insurer-Respondent and for Insurer-Petitioner Food Industry Self Insurance
Fund of New Mexico

New Mexico Center on Law and Poverty
Gail Evans
Albuquerque, NM

for Worker-Respondents Noe Rodriguez and Maria Angelica Aguirre

Modrall Sperling Roehl Harris & Sisk
Emil J. Kiehne
Sarah M. Stevenson
Albuquerque, NM

for Amicus Curiae New Mexico Farm and Livestock Bureau

Rachel A. Bayless, Special Assistant Attorney General
Albuquerque, NM

for Amicus Curiae New Mexico Workers’ Compensation Administration

Michael B. Browde
David J. Stout
Albuquerque, NM

for Amicus Curiae New Mexico Trial Lawyers Association

OPINION

CHÁVEZ, Justice.

{1} The New Mexico Workers’ Compensation Act (Act), NMSA 1978, §§ 52-1-1 to -70
(1917, as amended through 2015), has never required employers to provide workers’
compensation coverage to farm and ranch laborers. These consolidated appeals require us

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to resolve whether this exclusion violates the rights of those workers under the Equal
Protection Clause of Article II, Section 18 of the New Mexico Constitution in light of the
fact that other agricultural workers are not singled out for exclusion. The Equal Protection
Clause mandates that, “in order to be legal,” ostensibly discriminatory classifications in
social and economic legislation “must be founded upon real differences of situation or
condition, which bear a just and proper relation to the attempted classification, and
reasonably justify a different rule” for the class that suffers the discrimination. Burch v. Foy,
1957-NMSC-017, ¶ 10, 62 N.M. 219, 308 P.2d 199.

{2} When litigants allege that the government has unconstitutionally discriminated
against them, courts must decide the merits of the allegation because if proven, courts must
resist shrinking from their responsibilities as an independent branch of government, and
refuse to perpetuate the discrimination–regardless of how long it has persisted–by
safeguarding constitutional rights. Such is the constitutional responsibility of the courts.
Griego v. Oliver, 2014-NMSC-003, ¶ 1, 316 P.3d 865. We conclude that there is nothing
to distinguish farm and ranch laborers from other agricultural employees and that purported
government interests such as cost savings, administrative convenience, and other
justifications related to unique features of agribusiness bear no rational relationship to the
Act’s distinction between these groups. This is nothing more than arbitrary discrimination
and, as such, it is forbidden by our Constitution. Accordingly, we hold that the farm and
ranch laborer exclusion contained in Section 52-1-6(A) of the Act is unconstitutional, and
we remand these cases for further proceedings. The Legislature is at liberty to offer
economic advantages to the agricultural industry, but it may not do so at the sole expense
of the farm and ranch laborer while protecting all other agricultural workers. We also
determine that our holding should be given modified prospective application to the cases of
Ms. Aguirre and Mr. Rodriguez and to all cases involving an injury that manifests, as
defined under the Act, after the date that our mandate issues in this case pursuant to Rule 12-
402(B) NMRA.

I. BACKGROUND

{3} In 2012, Maria Angelica Aguirre worked as a chile picker in Doña Ana County for
M.A. and Sons, Inc. (M.A. & Sons) for a weekly wage of approximately $300.1 Ms. Aguirre
claims that she slipped in a field and broke her wrist while picking chiles. Ms. Aguirre
claims that her injury required surgery and rehabilitative therapy, she still has trouble with
her wrist, and she is limited in her ability to do farm work. M.A. & Sons had workers’
compensation insurance at the time of the alleged injury.

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M.A. & Sons disputes that Ms. Aguirre was its “employee” under the Act.
However, for the purposes of this appeal, they agree that we should treat Ms. Aguirre as
though she would otherwise be eligible for workers’ compensation benefits except for the
Section 52-1-6(A) exclusion.

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{4} In March 2013, Ms. Aguirre filed a workers’ compensation complaint seeking
compensation for temporary total disability, permanent partial disability, medical benefits,
and attorney fees. M.A. & Sons and its insurer, the Food Industry Self Insurance Fund of
New Mexico (Self Insurance Fund), raised several defenses to Ms. Aguirre’s complaint,
including the contention that her claims were barred by the farm and ranch laborer exclusion
in Section 52-1-6(A), which provides that the Act “shall not apply to employers of . . . farm
and ranch laborers.” In January 2014, Ms. Aguirre filed a motion for partial summary
judgment, asking the workers’ compensation judge (WCJ) to conclude that the farm and
ranch laborer exclusion had been declared unconstitutional; therefore, it did not bar her case.
To support her argument, Ms. Aguirre attached materials related to the 2012 judgment in
Griego v. New Mexico Workers’ Compensation Administration, No. CV 2009-10130, a case
that was brought by New Mexico farm laborers in the Second Judicial District Court. In
Griego, the district court declared that the farm and ranch laborer exclusion violated the
constitutional equal protection rights of the claimants in that case and entered an order
against the Workers’ Compensation Administration (the Administration). The
Administration then appealed the district court’s ruling on jurisdictional grounds and, in an
unpublished memorandum opinion, the Court of Appeals dismissed the claim as moot, and
further stated that because the Administration had not sought review of the constitutional
issue, the Court would not “examine []or draw any conclusions about it,” other than to say
that the Administration “cannot now escape the effect of unchallenged parts of the district
court’s decision.” Griego v. N.M. Workers’ Comp. Admin., No. 32,120, mem. op. ¶¶ 1, 11
(N.M. Ct. App. Nov. 25, 2013) (non-precedential). The WCJ took judicial notice of the
materials from Griego and admitted them for purposes of Ms. Aguirre’s motion for partial
summary judgment. The WCJ then denied her motion and dismissed her claim with
prejudice on the basis of the farm and ranch laborer exclusion.

{5} In 2012, Noe Rodriguez worked as a dairy worker and herdsman at Brand West
Dairy, earning just under $1000 every two weeks for working six days a week for eight
hours per day. Mr. Rodriguez alleges that he was pushed up against a door by a cow and
then head-butted by the cow, which caused him to fall face first onto a cement floor. He
alleges that he suffered a traumatic brain injury, a neck injury, and facial disfigurement and
that he was in a coma for two days. According to Mr. Rodriguez, as of July 2013, he had
still not been cleared by a doctor to return to work. He alleges that his employer, which did
not have workers’ compensation insurance, provided him with two checks for $600 after the
accident.

{6} In February 2013, Mr. Rodriguez filed a workers’ compensation complaint seeking
compensation for temporary total disability, permanent partial disability, disfigurement,
medical benefits, and attorney fees. In July 2013, the New Mexico Uninsured Employers’
Fund (the UEF), which acts as the insurer for businesses without workers’ compensation
insurance, see § 52-1-9.1, moved to dismiss Mr. Rodriguez’s claims because of the farm and
ranch laborer exclusion. Mr. Rodriguez responded by arguing that the WCJ was obligated
to follow the district court’s ruling in Griego and that the exclusion was unconstitutional.
He attached a large quantity of materials from Griego to his motion, some of which were

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admitted by the WCJ. The WCJ granted the UEF’s motion and dismissed Mr. Rodriguez’s
case based on the exclusion.

{7} Pursuant to NMSA 1978, Section 52-5-8(A) (1989), Ms. Aguirre and Mr. Rodriguez
(collectively “Workers”) appealed directly to the Court of Appeals, where their appeals were
consolidated. Rodriguez v. Brand W. Dairy, 2015-NMCA-097, ¶ 1, 356 P.3d 546, cert.
granted, 2015-NMCERT-008. Applying rational basis review, the Court of Appeals struck
down the farm and ranch laborer exclusion as a violation of Workers’ equal protection rights
under Article II, Section 18 of the New Mexico Constitution. Rodriguez, 2015-NMCA-097,
¶¶ 11, 31. The Court then applied its holding on a modified prospective basis to any workers
whose claims were pending as of March 30, 2012, and any claims filed after the date of the
district court’s final judgment in Griego. Rodriguez, 2015-NMCA-097, ¶ 37.

{8} The UEF appealed to this Court only on the issue of the Court of Appeals’ modified
prospective application of its holding. Brand West Dairy, M.A. & Sons, and the Self
Insurance Fund (collectively “Employers”) appealed to this Court to seek review of both the
constitutional issue and the modified prospective application of the holding. We granted
both petitions.

II. THE FARM AND RANCH LABORER EXCLUSION VIOLATES ARTICLE
II, SECTION 18 OF THE NEW MEXICO CONSTITUTION

{9} Workers contend that the farm and ranch laborer exclusion contained in Section 52-
1-6(A) violates their equal protection rights under the New Mexico Constitution and does
not survive under any level of scrutiny. Article II, Section 18 of the New Mexico
Constitution provides that no person “shall . . . be denied equal protection of the laws.”
“Like its federal equivalent, this is essentially a mandate that similarly situated individuals
be treated alike, absent a sufficient reason to justify the disparate treatment.” Wagner v.
AGW Consultants, 2005-NMSC-016, ¶ 21, 137 N.M. 734, 114 P.3d 1050. Under our equal
protection analysis, we must first determine “whether the legislation creates a class of
similarly situated individuals and treats them differently.” Griego, 2014-NMSC-003, ¶ 27.
If so, “we then determine the level of scrutiny that applies to the challenged legislation and
conclude the analysis by applying the appropriate level of scrutiny to determine whether the
legislative classification is constitutional.” Id.

{10} We review the constitutionality of legislation de novo. See Rodriguez v. Scotts
Landscaping, 2008-NMCA-046, ¶ 8, 143 N.M. 726, 181 P.3d 718. During that review, we
will not “question the wisdom, policy, or justness of legislation enacted by our Legislature,”
and will presume that the legislation is constitutional. Madrid v. St. Joseph Hosp.,
1996-NMSC-064, ¶ 10, 122 N.M. 524, 928 P.2d 250. The party challenging the legislation
therefore bears the burden of demonstrating that the law is unconstitutional. Id. To that end,
“[a] statute will not be declared unconstitutional unless the court is satisfied beyond all
reasonable doubt that the legislature went outside the constitution in enacting the challenged
legislation.” Benavides v. E. N.M. Med. Ctr., 2014-NMSC-037, ¶ 43, 338 P.3d 1265

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(internal quotation marks and citation omitted).

A. The farm and ranch laborer exclusion results in dissimilar treatment of
similarly situated individuals

{11} To determine whether the farm and ranch laborer exclusion in Section 52-1-6(A)
violates Workers’ equal protection rights, we must first decide “whether the legislation at
issue results in dissimilar treatment of similarly-situated individuals.” Madrid,
1996-NMSC-064, ¶ 35. This inquiry requires us to “look beyond the classification to the
purpose of the law.” Oliver, 2014-NMSC-003, ¶ 30 (internal quotation marks and citations
omitted); see also Stanton v. Stanton, 421 U.S. 7, 13-14 (1975) (“The [Federal Equal
Protection] Clause . . . denies to States the power to legislate that different treatment be
accorded to persons placed by a statute into different classes on the basis of criteria wholly
unrelated to the objective of that statute.” (internal quotation marks and citation omitted)).
For example, in Oliver, this Court determined that same-gender couples seeking to marry in
New Mexico were similarly situated to opposite-gender couples seeking to marry because
both groups shared common purposes that were essential to New Mexico’s marriage laws.
2014-NMSC-003, ¶¶ 36-38. Similarly, in New Mexico Right to Choose/NARAL v. Johnson,
1999-NMSC-005, ¶ 44, 126 N.M. 788, 975 P.2d 841, we held that men and women who
qualified for Medicaid were similarly situated for the purposes of both state and federal
Medicaid laws because those laws were intended to provide qualifying individuals with
access to necessary medical care. Therefore, a rule prohibiting the use of state funds to pay
for medically necessary abortions improperly treated men and women differently. Id. ¶¶ 45-
47. By contrast, in City of Albuquerque v. Sachs, 2004-NMCA-065, ¶¶ 11-16, 135 N.M.
578, 92 P.3d 24, the Court of Appeals determined that men and women were not similarly
situated under a local ordinance prohibiting public nudity because men and women possess
different physical characteristics which make the exposure of a woman’s breast “nudity,” but
not the exposure of a man’s breast. The law’s classification that distinguished men from
women was therefore “properly based on a unique characteristic” of women. Id. ¶ 11. In
other words, the reliance on differences in classifying men and women under the ordinance
was essential to accomplishing the law’s purpose: “to prohibit any person from knowingly
or intentionally being nude in a public place.” Id. ¶ 14.

{12} In this case, we will first examine the Act’s text to ascertain its purposes. NMSA
1978, Section 52-5-1 (1990) states the Legislature’s intent that the Act “assure the quick and
efficient delivery of indemnity and medical benefits to injured and disabled workers at a
reasonable cost to . . . employers . . . .” We have previously interpreted this provision to
encompass three of the Act’s objectives: “(1) maximizing the limited recovery available to
injured workers, in order to keep them and their families at least minimally financially
secure; (2) minimizing costs to employers; and (3) ensuring a quick and efficient system.”
Wagner, 2005-NMSC-016, ¶ 25. The Act also instructs that it is “not to be given a broad
liberal construction in favor of the claimant or employee on the one hand, nor are the rights
and interests of the employer to be favored over those of the employee on the other hand.”
Section 52-5-1. This provision requires us to “balance equally the interests of the worker

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and the employer without showing bias or favoritism toward either.” Salazar v. Torres,
2007-NMSC-019, ¶ 10, 141 N.M. 559, 158 P.3d 449.

{13} With these general principles in mind, we will also examine the structure and
operation of the entire Act as an indicator of its purposes. See Oliver, 2014-NMSC-003, ¶¶
34-35 (examining New Mexico’s marriage laws together to ascertain their collective
underlying purposes). For workers subject to the Act, the statute provides the exclusive
remedy for injuries or death “caused by accident” and which arise out of the course of the
worker’s employment, § 52-1-9, including accidents caused by an employer’s negligence,
Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 12, 131 N.M. 272, 34 P.3d 1148.
The exclusivity of workers’ compensation remedies for accidents and negligence is
advantageous to employers because it limits their potential liability for workplace injuries
by preventing workers from pursuing “the unpredictable damages available outside [the
Act’s] boundaries.” Id. ¶ 12. Instead, workers receive a predictable recovery amount
because it is highly regulated by statute. See, e.g., §§ 52-1-26 to -26.4 (establishing detailed
guidelines for determining award amounts for a partial disability covered under the Act).
In exchange, “[t]he injured worker receives compensation quickly, without having to endure
the rigors of litigation or prove [an employer’s] fault[.]” Delgado, 2001-NMSC-034, ¶ 12.
Additionally, the workers’ compensation system eliminates employer defenses that
frequently prevented injured workers from recovering for workplace injuries under the
common law. See § 52-5-1; see also Hisel v. Cty. of Los Angeles, 238 Cal. Rptr. 678, 682
(Ct. App. 1987) (“From the beginning, it was a principal purpose of workers’ compensation
laws to eliminate . . . common law defenses that had prevented recovery for injuries received
on the job . . . .”). We have also previously recognized the Act’s “design[] to . . . protect[]
society by shifting the burden of caring for injured workers away from society and toward
industry[,]” and thus “to prevent the worker from becoming a public charge and to assist the
worker in returning to work . . . .” Breen v. Carlsbad Mun. Sch., 2005-NMSC-028, ¶ 36, 138
N.M. 331, 120 P.3d 413 (internal quotation marks and citation omitted).

{14} We must also consider the history of New Mexico’s workers’ compensation laws to
fully understand their current exclusion of farm and ranch laborers. See Oliver, 2014-
NMSC-003, ¶¶ 30-31 (examining the history of New Mexico marriage laws for clues
regarding the purposes of those laws). Farm and ranch laborers have never been included
in New Mexico’s workers’ compensation system. The Act’s initial version, passed in 1917,
only applied to “extra-hazardous occupations or pursuits” which were specifically
enumerated by the Legislature and did not include any kind of agricultural labor. See 1917
N.M. Laws, ch. 83, §§ 2, 10. In 1937, the Legislature added an explicit exclusion of “farm
and ranch laborers.” 1937 N.M. Laws, ch. 92, § 2. Because the Act still only applied to
certain “extra-hazardous occupations or pursuits[,]” id. § 1, farm and ranch laborers were
therefore doubly excluded from the workers’ compensation system. In 1975, the Legislature
repealed the workers’ compensation system’s limitation to extra-hazardous pursuits or
occupations, see 1975 N.M. Laws, ch. 284, § 14, and instead applied the Act more broadly
to include private employers employing four or more workers, see id. § 3. Employers of
farm and ranch laborers were still explicitly excluded from the Act. Id. Today the Act is

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generally mandatory for private employers with three or more employees, except for
employers of private domestic servants and farm and ranch laborers. See § 52-1-6(A).
Employers of farm and ranch laborers can instead affirmatively elect to provide workers’
compensation coverage for those workers. Section 52-1-6(B).

{15} The exclusion now provides that “[t]he provisions of the Workers’ Compensation Act
shall not apply to employers of . . . farm and ranch laborers.” Section 52-1-6(A). Because
a “literal interpretation” of this language would lead to “absurd results[,]” the provision has
long been applied only to workers employed as farm and ranch laborers and not to every
individual employee working for an employer of farm and ranch laborers. Cueto v.
Stahmann Farms, Inc., 1980-NMCA-036, ¶ 6, 94 N.M. 223, 608 P.2d 535; see also Holguin
v. Billy the Kid Produce, Inc., 1990-NMCA-073, ¶ 19, 110 N.M. 287, 795 P.2d 92 (“[T]he
determination of whether a particular worker is a farm laborer is based on the nature of the
employee’s primary job responsibilities, not the nature of the employer’s business.”).
Otherwise, employers could “exempt their entire work force from the act by employing a
few farm and ranch laborers[,]” which would thwart the Legislature’s intent to “exempt
agricultural labor” from the workers’ compensation system. Cueto, 1980-NMCA-036, ¶ 6.
In other words, a worker who occasionally performs the tasks of a farm or ranch laborer is
not necessarily classified as such if he or she is primarily employed for a different purpose,
and likewise, a worker working as a farm or ranch laborer, is still classified as a farm or
ranch laborer even when he or she is performing a work-related duty that would normally
be performed by a non-excluded worker, such as driving a truck or packaging the product.
See Holguin, 1990-NMCA-073, ¶ 9 (“[T]he general character of the employment is
controlling, even though the worker may in fact have been injured while performing a
service that is not farm labor.”).

{16} A worker is classified as a farm or ranch laborer for purposes of the Act when “the
worker’s primary responsibility is performed on the farming premises and is an essential part
of the cultivation of the crop[.]” Id. For instance, in Holguin, the Court of Appeals
determined that a worker who primarily filled and stacked sacks of onions in an onion shed
was not a farm laborer under Section 52-1-6(A). 1990-NMCA-073, ¶¶ 3-5, 20. Several
years later, the Court of Appeals held that a beekeeper’s assistant, whose primary duties
involved harvesting honey by helping to extract it from bee hives, was a farm laborer under
Section 52-1-6(A). Tanner v. Bosque Honey Farm, Inc., 1995-NMCA-053, ¶¶ 2-3, 12, 119
N.M. 760, 895 P.2d 282; see also Cueto, 1980-NMCA-036, ¶¶ 1, 3, 9 (holding that a worker
whose primary duty was manufacturing fertilizer by maintaining a compost heap, a process
that was “an essential part of the cultivation of pecans[,]” was a farm laborer under Section
52-1-6(A)). Therefore, under the exclusion, the same agricultural employer could be exempt
from providing mandatory workers’ compensation coverage for a worker who harvests an
agricultural product in the field, but still be required to provide workers’ compensation to
workers who process and package that same product because that task is merely “incidental”
to farming. See Tanner, 1995-NMCA-053, ¶¶ 7, 11.

{17} We hold that the farm and ranch laborers who are excluded by Section 52-1-6(A) are

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similarly situated to other employees of agricultural employers with respect to the purposes
of the Act. In light of the purposes of the Act discussed above, we conclude that there is no
unique characteristic that distinguishes injured farm and ranch laborers from other
employees of agricultural employers, and such a distinction is not essential to accomplishing
the Act’s purposes. Cf. Sachs, 2004-NMCA-065, ¶¶ 13-16 (distinguishing men from women
to accomplish the objective of a city ordinance). Rather, the same mutually beneficial trade-
off in rights between employers and employees apply equally to farm and ranch laborers and
their employers. See Oliver, 2014-NMSC-003, ¶¶ 36-38 (determining that same-gender and
opposite-gender couples were similarly situated with respect to the benefits associated with
marriage in New Mexico); see also Stanton, 421 U.S. at 15 (holding that boys and girls were
similarly situated for the purposes of a statute specifying the age of majority for child
support payments because “[i]f a specified age of minority is required for the boy in order
to assure him parental support while he attains his education and training, so, too, is it for
the girl”). Indeed, the classification resulting from the exclusion is contrary to the Act’s goal
of balancing the rights of employees and employers because it allows the employers of only
this excluded class of workers to unilaterally opt into or out of the workers’ compensation
system—a choice that the same employers do not have with respect to any other employees.
See § 52-1-6(A), (B). Workers also have shown that it does not further the Act’s purposes
defined in Section 52-5-1 to impose a negligence standard on accidental workplace injuries
suffered by employees who work primarily as farm and ranch laborers, while applying a no-
fault system to all other workplace accidents suffered by employees of agricultural
employers, including those who occasionally perform the tasks of farm and ranch laborers.
See Holguin, 1990-NMCA-073, ¶¶ 9-10.

{18} Employers argue that the Act’s classification of farm and ranch laborers is a
“distinction . . . [which] does not come directly from the challenged legislation, but, instead,
comes from the [Court of Appeals’] interpretation and application” of the exclusion.
Employers further contend that to define the classification in this manner would be
inappropriate and contrary to our prior case law, “where the challenged distinction came
directly from the provisions of the Act.” Employers’ argument does not convince us that the
distinction between farm and ranch laborers exempt from the Act and other employees of
agricultural employers in New Mexico was “created by” the Court of Appeals rather than
the Act.

{19} Contrary to Employers’ contention, our equal protection jurisprudence requires us
to consider how courts have interpreted legislative language to define classifications created
by a statute. For example, in Oliver we had to determine whether, when read as a whole,
New Mexico’s marriage laws authorized or prohibited same-gender marriage, “despite the
lack of an express legislative prohibition against same-gender marriage . . . .” 2014-NMSC-
003, ¶ 24. Even though New Mexico’s marriage statutes contained a mixture of gender-
neutral and gender-specific language, we interpreted the statutory scheme to reflect a
legislative intent to prohibit same-gender marriages. Id. ¶ 23. We then considered whether
same-gender couples seeking to marry were similarly situated to opposite-gender couples
seeking to marry based on the distinction between those two groups created by the

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interpretation of prohibition. See id. ¶¶ 28-38. Similarly, courts have interpreted the farm
and ranch laborer exclusion to create a distinction between employees whose work is
essential to cultivating crops or who work directly with livestock and other employees whose
work is not essential to those goals by reasoning that any other interpretation would be
absurd to the extent that it would not be in accord with the Legislature’s wishes. See Cueto,
1980-NMCA-036, ¶ 6.

{20} The Legislature’s failure to change or clarify judicial interpretations of the exclusion
indicates its intent that the exclusion should be applied to a distinct subset of employees as
defined by case law. In the context of the Act and its predecessors, this Court has long
interpreted agricultural labor to include only workers whose primary responsibilities were
directly related, not incidental, to agricultural pursuits.2 See Koger v. A. T. Woods, Inc.,
1934-NMSC-020, ¶¶ 17-20, 38 N.M. 241, 31 P.2d 255. Cueto further clarified that a
worker’s primary responsibilities had to be essential to cultivating crops for his or her work
to be directly related to agriculture. 1980-NMCA-036, ¶ 9. Because the Legislature has not
taken any steps in the interim to correct or change these long-standing interpretations related
to the exclusion, their inactivity is an endorsement of the case law, absent any evidence to
the contrary. See State v. Chavez, 2008-NMSC-001, ¶ 21, 143 N.M. 205, 174 P.3d 988
(“The Legislature's continuing silence on the issue we confront herein is further evidence
that it was both aware of and approved of the existing case law . . . . If the Legislature had
intended to modify or clarify those rules, it would have done so expressly . . . .”). Further,
the only recent amendment related to the exclusion, see 1984 N.M. Laws, ch. 127, § 988.3,
also acknowledged that certain employees should be classified as farm and ranch laborers
based on whether they directly work with crops or animals in an agricultural setting. See §
52-1-6.1.

{21} Employers next argue that New Mexico courts have already determined that farm and

2
The dissent places substantial emphasis on Williams v. Cooper, 1953-NMSC-050,
57 N.M. 373, 258 P.2d 1139. See diss. op. ¶¶ 73-74, 76, 81. Williams interpreted the since-
repealed provision that applied workers’ compensation only to those employers engaged in
extra-hazardous occupations or pursuits under NMSA 1941, Section 57-910 (1941). See
1953-NMSC-050, ¶ 12. Significantly, the phrase “occupations or pursuits” was given
further context by NMSA 1941, Section 57-902 (1941), which limited the Act’s application
to private businesses “engaged in carrying on for the purpose of business, trade or gain . . .
either or any of the extra-hazardous occupations or pursuits named or described” by the Act
and to injuries suffered “by accident arising out of and in the course of [a worker’s]
employment in any such occupation or pursuit.” Yet, as we have already described, see
supra, maj. op. ¶ 14, the extra-hazardous occupations limitation was excised from the Act
more than four decades ago, and the modern version of the Act does not broadly restrict its
application based on the occupations or pursuits of the employer. See § 52-1-2. In any
event, workers whose primary responsibilities were directly related, not incidental, to
agricultural pursuits have always been a part of the test.

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ranch laborers are not similarly situated to New Mexico workers in Holguin and Tanner who
are not exempt from the Act. In other words, according to Employers, the Court of Appeals’
determination in those cases that some workers were farm and ranch laborers for purposes
of Section 52-1-6(A) while others were not was tantamount to holding that workers who
harvest crops or directly participate in farming activities are “not similarly situated” for
equal protection purposes to workers who perform tasks such as processing and packaging
crops. This definition of “similarly situated” based on assigned tasks would eviscerate equal
protection rights. Indeed, the logical extension of Employers’ argument is that no class
defined by legislation can ever be similarly situated to individuals outside that class because
those outside the class do not possess the trait that defines the class. “[S]imilarly situated
cannot mean simply similar in the possession of the classifying trait. All members of any
class are similarly situated in this respect and consequently, any classification whatsoever
would be reasonable by this test.” N.M. Right to Choose/NARAL, 1999-NMSC-005, ¶ 39
(emphasis added) (internal quotation marks and citation omitted). Thus, there is no merit
to Employers’ argument that prior cases determining the scope of Section 52-1-6(A) are
dispositive of whether injured farm and ranch laborers are similarly situated to other injured
workers of agricultural employers.

{22} Having decided that the exclusion creates differential treatment among similarly
situated employees, we will now determine the appropriate level of scrutiny to apply. See
Breen, 2005-NMSC-028, ¶ 11.

B. Rational basis review is appropriate

{23} “There are three levels of equal protection review based on the New Mexico
Constitution: rational basis, intermediate scrutiny and strict scrutiny.” Id. “In analyzing
which level of scrutiny should apply in an equal protection challenge, a court should look
at all three levels to determine which is most appropriate based on the facts of the particular
case.” Id. ¶ 15. “What level of scrutiny we use depends on the nature and importance of the
individual interests asserted and the classifications created by the statute.” Wagner,
2005-NMSC-016, ¶ 12. “Rational basis review applies to general social and economic
legislation that does not affect a fundamental or important constitutional right or a suspect
or sensitive class.” Breen, 2005-NMSC-028, ¶ 11. Under rational basis review, the
challenger must demonstrate that the legislation is not rationally related to a legitimate
government purpose. Id. However, legislation can trigger a review under intermediate
scrutiny where it “either (1) restrict[s] the ability to exercise an important right or (2) treat[s]
the person or persons challenging the constitutionality of the legislation differently because
they belong to a sensitive class.” Id. ¶ 17. Under intermediate scrutiny, the party supporting
the legislation must show that it is substantially related to an important government interest.
Id. ¶ 13. Finally, strict scrutiny applies when “a law draws suspect classifications or impacts
fundamental rights.” Wagner, 2005-NMSC-016, ¶ 12. In that instance, the party supporting
the legislation must demonstrate that “that the provision at issue is closely tailored to a
compelling government purpose.” Id.

12
{24} The Act is general social and economic legislation, and the benefits that it confers
do not rise to the level of important or fundamental rights. See Breen, 2005-NMSC-028, ¶
17. Further, Workers have not provided any argument for classifying farm or ranch laborers
as a sensitive or suspect class before this Court. Therefore, we will apply rational basis
review in this case. See State ex rel. Human Servs. Dep’t v. Staples (In re Doe),
1982-NMSC-099, ¶ 3, 98 N.M. 540, 650 P.2d 824 (courts should strive to avoid deciding
legal arguments not raised by the parties).

C. The exclusion fails rational basis review

{25} In Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 32, 125 N.M. 721, 965 P.2d
305, we adopted a rational basis test different than the federal rational basis test. We
rejected a fourth tier of “heightened” rational basis analysis and instead adopted a “modern
articulation” of the rational basis test that “subsum[ed] that fourth tier” of review and
“address[ed] the concerns” of heightened rational basis analysis. Id. (internal quotation
marks and citations omitted). In Wagner, we clarified that the rational basis test adopted by
Trujillo requires the challenger to “demonstrate that the classification created by the
legislation is not supported by a firm legal rationale or evidence in the record.” Wagner,
2005-NMSC-016, ¶ 24 (internal quotation marks and citation omitted). The New Mexico
rational basis test is therefore similar to the federal heightened rational basis test. See, e.g.,
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).

{26} However, for claims under the United States Constitution, we still follow the federal
rational basis test, which only requires a reviewing court to divine “the existence of a
conceivable rational basis” to uphold legislation against a constitutional challenge. Kane v.
City of Albuquerque, 2015-NMSC-027, ¶ 17, 358 P.3d 249 (internal quotation marks and
citation omitted). Under the federal test, “those attacking the rationality of the legislative
classification have the burden to negative every conceivable basis which might support it.”
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993) (internal quotation marks and
citation omitted). Accordingly, a law “must be upheld against equal protection challenge
if there is any reasonably conceivable state of facts that could provide a rational basis for the
classification.” Id. at 313. Legislation can therefore survive a constitutional challenge under
the federal test based solely on a judge’s “rational speculation [that is] unsupported by
evidence or empirical data.” Id. at 315.

{27} In Trujillo, we rejected this version of the rational basis test and noted that critics had
fairly characterized it as “toothless” and “a virtual rubber-stamp[.]” 1998-NMSC-031, ¶ 30
(internal quotation marks and citations omitted). Our opinion in Trujillo implicitly
addressed Justice Stevens’ concern in Beach Communications that the federal test “sweeps
too broadly, for it is difficult to imagine a legislative classification that could not be
supported by a ‘reasonably conceivable state of facts[,]’ ” and his statement that judicial
review under this test is therefore “tantamount to no review at all.” 508 U.S. at 323 n.3
(Stevens, J., concurring); see also Clark Neily, No Such Thing: Litigating Under the
Rational Basis Test, 1 N.Y.U. J.L. & Liberty 898, 905-913 (2005) (arguing that the federal

13
rational basis test invites dishonest and entirely speculative defenses of legislation;
“[s]addl[es] . . . plaintiffs with a technically unattainable burden of proof and requir[es] them
to construct a trial court record sufficient to rebut arguments that have not even been made
yet”; and is particularly subject to inconsistent, result-based interpretations). Thus, while
we remain highly deferential to the Legislature by presuming the constitutionality of social
and economic legislation, our approach is also cognizant of our constitutional duty to protect
discrete groups of New Mexicans from arbitrary discrimination by political majorities and
powerful special interests. See Steven M. Simpson, Judicial Abdication and the Rise of
Special Interests, 6 Chap. L. Rev. 173, 174, 188-204 (2003) (arguing that discriminatory
“special interest legislation flourishes when courts refuse to play their proper role of policing
the political branches of government”); Austin Raynor, Note, Economic Liberty and the
Second-Order Rational Basis Test, 99 Va. L. Rev. 1065, 1093-1101 (2013) (arguing that
federal rational basis review is insufficient to protect discrete groups with little chance to
influence changes in the law from certain “vested interests” that have “powerful economic
incentives” to discriminate against those discrete groups in the pursuit of “inflated profits”).
To that end, our more robust standard establishes rational basis review in arguments and
evidence offered by the challengers or proponents of a law rather than requiring the
challengers to anticipate and address every stray speculation that may pop into a judge’s
head at any point in the case. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 442 (1982)
(Blackmun, J., separate opinion) (concluding that “[t]he State’s rationale must be something
more than the exercise of a strained imagination; while the connection between means and
ends need not be precise, it, at the least, must have some objective basis[,]” and rejecting a
proffered basis for legislation where it had “so speculative and attenuated a connection to
its goal as to amount to arbitrary action”).

{28} Returning to the case before us, the classification of farm and ranch laborers must be
upheld unless Workers prove it is “not rationally related to a legitimate government
purpose.” Wagner, 2005-NMSC-016, ¶ 12. To prove the lack of a rational relationship, they
“must demonstrate that the classification created by the legislation is not supported by a firm
legal rationale or evidence in the record.” Id. ¶ 24 (internal quotation marks and citation
omitted). In practical terms, our rational basis standard requires the challenger to bring
forward record evidence, legislative facts, judicially noticeable materials, case law, or legal
argument to prove that the differential treatment of similarly situated classes is arbitrary, and
thus not rationally related to the articulated legitimate government purposes. Proponents of
the classification are, of course, free to draw a court’s attention to similar evidence to rebut
the challengers’ arguments or to set forth additional government purposes that the
challengers must then prove are not supported by a firm legal rationale or evidence in the
record.

{29} For example, one approach available for challengers to prove the lack of a rational
relationship under our test is by demonstrating that the classification is grossly over- or
under-inclusive with respect to an articulated government purpose, such that the relationship
between the classification and its purpose is too attenuated to be rational, and instead
amounts to arbitrary discrimination. For example, in City of Cleburne, the United States

14
Supreme Court applied a heightened rational basis standard similar to our test and struck
down a zoning ordinance imposing special administrative hurdles on group homes for the
intellectually and developmentally disabled. See 473 U.S. at 449-50. The Court rejected
several purported rational bases offered by the law’s proponents because the law did not
provide a close enough fit with those bases. See id. Proponents of the zoning law argued
that there was a legitimate government interest in requiring a permit for the facility in that
case because it would be located on a flood plain. Id. at 449. The Court determined that the
ordinance was not rationally related to the government interest in protecting people from
floods because that concern would apply equally to a variety of other group facilities housing
vulnerable populations, none of which would have been required to obtain a permit, and
therefore could “hardly be based on a distinction between [a home for the intellectually and
developmentally disabled] and, for example, nursing homes, homes for convalescents or the
aged, or sanitariums or hospitals . . . .” Id. The Court also rejected an argument that “the
ordinance is aimed at avoiding concentration of population and at lessening congestion of
the streets[,]” since those concerns would apply equally to other group housing such as
“apartment houses, fraternity and sorority houses, hospitals and the like,” none of which
were singled out in the same manner by the zoning law. Id. at 450. In other words, despite
the existence of legitimate government interests in protecting people from floods and
preventing overpopulation and congestion, and despite the fact that there was likely some
relationship between requiring special permits for group homes for the intellectually and
developmentally disabled and those interests, singling out one particular group among other
similarly-situated groups was grossly under-inclusive with respect to these interests, and
therefore the challengers had proved the absence of a rational relationship.

{30} The United States Supreme Court similarly has not found a rational relationship
when a law is grossly over-inclusive in addressing a purported government interest. See U.S.
Dep’t of Agric. v. Moreno, 413 U.S. 528, 536-38 (1973) (striking down related-household
limitations on food stamp eligibility under the Food Stamp Act as not rationally related to
the purpose of preventing fraud because the provision appeared to largely exclude from the
food stamp program individuals who were not committing fraud, but rather were too poor
to alter their living arrangements); see also Barletta v. Rilling, 973 F. Supp. 2d 132, 138 (D.
Conn. 2013) (“The statute, in other words, is both grossly over-inclusive and grossly
under-inclusive as a proxy for serving the State’s stated goals. To survive even rational basis
review, the defendants and the State must do more than suggest that some felons would be
unsuitable for licensure. Most irrational classifications, for example, left-handed people,
obese people, people with tattoos, people born on the first day of the month, divorced people
and college dropouts, will include some persons properly excluded from licensure. Such
occasional coincidence between membership in the excluded class and the purpose of the
licensing requirement is not sufficient to advance a legitimate government interest.” (internal
quotation marks and citation omitted)). Therefore, inclusiveness can be a valuable rubric
for evaluating the relationship between a classification and a government purpose under our
rational basis test.

{31} We will now apply our rational basis test to this case. The following rationales have

15
been articulated for the Section 52-1-6(A) classification of farm and ranch laborers: (1) cost
savings for agricultural employers; (2) administrative convenience; (3) unique economic
aspects of agriculture; (4) protection of New Mexico’s farming and ranching traditions; and
(5) the application of tort law to workplace injuries suffered by farm and ranch laborers. We
hold that Workers have demonstrated that there is neither evidence in the record nor firm
legal rationale sufficient to establish a rational relationship between the exclusion and any
of these purposes.

{32} First, Workers have demonstrated that there is neither evidence in the record nor
firm legal rationale showing a rational relationship between the exclusion’s classification of
farm and ranch laborers and a purported interest in reducing overhead costs to the New
Mexico agricultural industry. According to Employers, the exclusion is intended to reduce
costs to farmers and consumers by saving the cost of providing workers’ compensation
insurance to farm and ranch laborers. On appeal, amicus curiae New Mexico Farm and
Livestock Bureau (the Bureau) introduced Fiscal Impact Reports (FIRs) to support the
argument that the exclusion saves overhead costs for farm and ranch employers. See FIR
for H.B. 80 (Jan. 19, 2007) (2007 FIR), available at
http://www.nmlegis.gov/Sessions/07%20Regular/ firs/HB0080.pdf (last viewed June 1,
2016); FIR for H.B. 62 (Feb. 5, 2009) (2009 FIR), available at
http://www.nmlegis.gov/Sessions/ 09%20Regular/firs/HB0062.pdf (last viewed June 1,
2016). Employers also contend that this Court’s analysis in Wagner requires us to consider
lowering costs to employers as a legitimate government purpose to effectuate the
Legislature’s intent that the Act be interpreted to balance the rights of employers and
employees. See § 52-5-1. However, the statement in Wagner that reducing employer costs
is a purpose of the Act referred to reducing employer costs within the workers’ compensation
system; it did not stand for the self-contradictory proposition that one of the Act’s purposes
is to reduce costs for employers by exempting them from the Act entirely. See
2005-NMSC-016, ¶ 25.

{33} As to the more general cost savings argument, Workers have met their burden by
demonstrating that there is neither firm legal rationale nor evidence in the record to establish
a rational relationship between this purpose and the differential treatment of farm and ranch
laborers under the Act. This Court has previously recognized that while “lowering employer
costs” is a “valid legislative goal” of the Act, rational basis review, at a minimum, still
requires that a cost-saving classification “be based upon some substantial or real distinction,
and not artificial or irrelevant differences.” Schirmer v. Homestake Mining Co.,
1994-NMSC-095, ¶ 9, 118 N.M. 420, 882 P.2d 11. In Schirmer, we upheld a challenge to
a statute barring claims for compensation based on injuries resulting from occupational
exposure to radioactive or fissionable materials that was brought more than ten years after
the employee’s last day of work. Id. ¶¶ 3-4, 10. In striking down the law as a violation of
substantive due process under rational basis review, we determined that while the
provision’s bar on certain claims “probably reduce[d] costs to employers by eliminating
claims[,]” it did so by “arbitrarily discriminat[ing]” against a discrete group of claimants.
Id. ¶¶ 9-10.

16
{34} Similarly, other jurisdictions have agreed that while cost savings are a legitimate
government interest, they cannot be achieved through arbitrary means because if they were
the “sole reason for disparate treatment[,] . . . cost containment alone could justify nearly
every legislative enactment without regard for . . . equal protection.” Caldwell v. MACo
Workers’ Comp. Tr., 2011 MT 162, ¶ 34, 256 P.3d 923 (internal quotation marks and
citations omitted); see also Harris v. Millenium Hotel, 330 P.3d 330, 337 (Alaska 2014)
(rejecting cost savings justification under rational basis review of workers’ compensation
provision that excluded same-gender couples from receiving death benefits); Caldwell, 2011
MT 162, ¶ 35 (“We must scrutinize attempts to disguise violations of equal protection as
legislative attempts to ‘contain the costs’ or ‘improve the viability’ of the worker’s
compensation system. Cost alone does not justify the disparate treatment of similar
classes.” (emphasis added) (citation omitted)); Arneson v. State ex rel. Dep’t of Admin.,
Teachers’ Ret. Div., 864 P.2d 1245, 1248 (Mont. 1993) (“[E]ven if the governmental
purpose is to save money, it cannot be done on a wholly arbitrary basis. The classification
must have some rational relationship to the purpose of the legislation.”); State ex rel.
Patterson v. Indus. Comm’n, 672 N.E.2d 1008, 1012-13 (Ohio 1996) (holding that
conserving funds cannot be the sole reason for a classification denying workers’
compensation benefits to a particular group of workers).

{35} Likewise, in this case, even assuming that agricultural operations would face
additional costs without the exclusion, these cost savings are only achieved through arbitrary
discrimination against farm and ranch laborers. The exclusion does not apply to farm and
ranch employers, but rather to employees whose primary job responsibilities fit the definition
of “farm and ranch laborers” under Section 52-1-6(A). See Holguin, 1990-NMCA-073, ¶
19 (stating that despite the Act’s plain language, “the determination of whether a particular
worker is a farm laborer is based on the nature of the employee’s primary job
responsibilities, not the nature of the employer’s business” (emphasis added)). Therefore,
agricultural employers are not fully exempted from the Act because they are still required
to cover any employees whose primary responsibilities are not essential to cultivating crops,
such as employees who sort or package crops. See id. ¶ 20. As a result, the exclusion saves
overhead costs for agricultural employers by arbitrarily excluding only farm and ranch
laborers, a discrete subset of their potential employees, from coverage. Here we again reject
the argument that achieving cost savings for employers by arbitrarily discriminating against
a particular group of employees is a legitimate government purpose. See Schirmer,
1994-NMSC-095, ¶¶ 9-10.

{36} Second, Workers have met their burden by demonstrating that there is neither
evidence in the record nor firm legal rationale showing that the classification of farm and
ranch laborers is rationally related to unique administrative challenges created by workers’
compensation claims from those workers. According to Employers, farm and ranch laborers
are “often seasonal and, as such, are inherently transient.” Employers argue that the
transience of these workers creates unique difficulties for insurers, including not knowing
where to send benefit checks and not knowing where to provide the worker with medical
care. Additionally, Employers contend that “some farm and ranch workers . . . are

17
undocumented,” which makes them “difficult to locate” and prone to “avoid[ing] contact
with governmental authorities,” and administering their claims would therefore present a
challenge. In support of this argument, the Bureau cites the FIRs from 2007 and 2009. The
2007 FIR repeated the Administration’s belief at that time that removing the exclusion would
significantly increase the Administration’s caseload, require additional staffing, and present
logistical challenges due to the transitory nature of some seasonal farm and ranch laborers.
Id. at 2. Similarly, in the 2009 FIR, the Administration asserted that it would need three
more full-time employees to handle an estimated 475 additional claims and estimated that
it would need to pay the UEF an additional $24,000 per year due to the increased claims.
Id. at 2-3.

{37} However, the Administration later contradicted its earlier positions through
stipulations entered in Griego.3 In Griego, the Administration agreed that “[i]t would be
administratively feasible to administer the workers’ compensation system with the addition
of farm and ranch laborers,” including temporary or seasonal workers. The Administration
also agreed that coverage of these workers would likely lead to a 1.4% increase in covered
workers and a less than 1% increase in caseload. Further, the Administration agreed that
“[i]t is no more difficult to administer workers’ compensation to farm and ranch laborers
than it is to administer the program to other covered workers, some of whom are migrant and
seasonal, work for multiple employers or are employed by farm labor contractors.” The
Administration additionally conceded that farm and ranch laborers whose employers already
provided voluntary coverage under the Act “do not pose any special difficulties for the . . .
Administration.” Finally, the Administration agreed that the additional administrative costs
associated with covering more workers “would be covered by fees collected from workers

3
Employers do not directly argue that the Griego stipulation should be rejected, but
do refer to the “lack of a developed factual record that contains findings that were truly
litigated between the parties and made by an independent fact finder.” We agree, and
therefore do not treat these facts as if Employers have stipulated to them. However, we have
considered this stipulation with respect to the administrative convenience rationale because
the Administration’s statements in Griego regarding the feasibility of administering these
claims for farm and ranch laborers directly relate to earlier statements attributed to the
Administration in the FIRs. These are legislative facts that “do not concern individual
parties” in this case, but are rather a “non-evidentiary source[]” of universally-applicable
information to help us “determine the content of law and policy.” Quynh Truong v. Allstate
Ins. Co., 2010-NMSC-009, ¶¶ 25-26, 147 N.M. 583, 227 P.3d 73 (internal quotation marks
and citations omitted). Notably, Employers could have also entered competing general
factual evidence into the record for purposes of appeal, such as the FIRs, or argued that the
stipulation was irrelevant or outdated. See Jarita Mesa Livestock Grazing Ass’n v. U.S.
Forest Serv., 305 F.R.D. 256, 290 (D.N.M. 2015) (concluding that it is appropriate to
consider legislative facts contained in a report authored by the U.S. Forest Service, but the
U.S. Forest Service was still free to argue that the facts were inapposite or being misused by
plaintiffs).

18
and employers” pursuant to the Act. Therefore, the Administration’s most recent statements
regarding the exclusion severely undermine earlier statements in the record regarding the
administrative convenience rationale for the exclusion.

{38} Workers have demonstrated that the exclusion does not rationally relate to
administrative convenience in the workers’ compensation system. The Section 52-1-6(A)
exclusion is grossly under- and over-inclusive with respect to the purported government
interest of avoiding administrative difficulties in the workers’ compensation system so that
it is not rationally related to the goal of ensuring the Act’s quick and efficient administration.
See Wagner, 2005-NMSC-016, ¶ 25 (emphasizing the particularly important goal of
maximizing workers’ recovery among the Act’s goals that also include “ensuring a quick and
efficient system”); § 52-5-1 (articulating the goal of “quick and efficient” administration).
As Workers observe, “the [Administration] and private insurance companies already
administer claims in the construction, service and roofing industries, which, like agriculture,
sometimes involve sub-contractors, part-time employees, multiple employers, seasonality
and frequent changes in employers,” and presumably undocumented employees as well.
Indeed, the Act does not exclude any other employees who work in industries that rely on
substantial seasonal or temporary labor. It is arbitrary to exclude a subset of workers from
just one industry based on concerns regarding administrative convenience that are not even
remotely unique to that industry. The exclusion is thus so grossly under-inclusive in
addressing any purported problems with administering claims that it is not rationally related
to that interest. See Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 472 (Ky. 2011) (“Nor
can the disparate treatment of coal workers be justified as a[n administrative] cost-saving
measure, as it is axiomatic that, if the enhanced procedure saves money, the state would save
more money by subjecting all occupational pneumoconiosis claimants to the more exacting
procedure and higher rebuttable standard.”); Walters v. Blair, 462 S.E.2d 232, 234 (N.C. Ct.
App. 1995), aff’d, 476 S.E.2d 105 (N.C. 1996) (per curiam) (striking down a statute
regarding disability and death benefits for silicosis or asbestosis under workers’
compensation because it was “grossly underinclusive” since similar government interests
would presumably be equally served by the same treatment of any number of other serious
diseases).

{39} Additionally, it is unclear why concerns regarding administrative difficulties raised
by seasonal or temporary laborers should bar all farm and ranch laborers from the Act when
some of those employees work year-round for the same employer. The exclusion is, in this
sense, so grossly over-inclusive as to undermine any rational relationship between the
exclusion and administrative convenience. In this case, for example, Mr. Rodriguez asserts
that he worked full-time for Brand West Dairy for four years prior to his injury. The
proponents of the exclusion do not explain why his claim, or other similar claims brought
by full-time farm and ranch laborers, would be more difficult to administer than a claim
brought by a full-time employee in any other industry.

{40} In conclusion, the combined under- and over-exclusiveness of the farm and ranch
laborer exclusion renders it so attenuated from the purported government interest of

19
administrative convenience as to be arbitrary discrimination.

{41} Third, Workers have demonstrated that there is neither evidence in the record nor
firm legal rationale to support a rational relationship between federal regulations of
agricultural prices and differential treatment of farm and ranch laborers under the Act. To
support this rationale, the Bureau cites 7 U.S.C. § 608c (2012), which sets certain minimum
prices for milk and other dairy products, and 7 U.S.C. § 1421 (2012), under which the United
States Secretary of Agriculture may sometimes set price supports for agricultural
commodities. Notably, the provisions set minimum prices or price supports in excess of
minimum prices for agricultural products. This belies any implication that federal
regulations hold down the prices of agricultural commodities, because the price regulations
cited by the Bureau are designed to provide special assistance to farmers by stabilizing
markets for agricultural commodities. The Bureau also asserts that farmers are generally
“price-takers,” which means that they have little ability to increase prices and must generally
accept prevailing market rates, and that without the exclusion, New Mexico farmers would
be at a competitive disadvantage.

{42} However, only a small minority of states still allow the complete exemption of farm
workers from workers’ compensation. For instance, just among states bordering New
Mexico, neither Arizona nor Colorado treats farm and ranch laborers differently than any
other workers for purposes of workers’ compensation, see Ariz. Rev. Stat. Ann. §§ 23-901
to -1104 (1964, as amended through 2015); Colo. Rev. Stat. §§ 8-40-101 to -55-104 (West
1990, as amended through 2014), and Oklahoma and Utah both require limited mandatory
coverage that is designed to exclude only small farms and family farms, see Okla. Stat. tit.
85A, § 2(18)(b) (2013) (excluding farms with an annual payroll of less than $100,000); Utah
Code Ann. § 34A-2-103(5) (2016) (excluding farms with an annual payroll of less than
$50,000, which does not include payroll payments to members of the families owning the
small farms). However, farmers and ranchers from these neighboring states, as well as a
significant minority of New Mexico farmers and ranchers who have elected to provide
coverage to their workers under Section 52-1-6(B), are subject to the same price regulations
and compete in the same markets as New Mexico farmers who elect not to provide coverage.
Thus, Workers have met their burden.

{43} Fourth, Workers have also met their burden in demonstrating that there is neither
firm legal rationale nor evidence in the record to support a rational relationship between the
differential classification of farm and ranch laborers under the Act and the government
purpose of helping New Mexico’s small, rural farms and protecting their traditions. To
support this purported justification, the Bureau cites statistics which show that a great
majority of New Mexico’s farms are small, family-run operations, and demonstrate that the
average New Mexico farm carries a thin or negative profit margin. However, the Act is only
mandatory for private employers of three or more workers, see § 52-1-2, and therefore the
exclusion only benefits farms and ranches that employ three or more employees. According
to the 2012 Census of Agriculture created by the United States Department of Agriculture,
1,864 of the 24,721 “farms” in New Mexico employ three or more workers, which means

20
that only approximately the largest 7.5% of farms in New Mexico benefit from the exclusion.
U.S. Dep’t of Agriculture, 2012 Census of Agriculture: United States Summary and State
Data, Vol. 1 at Tables 1 & 7 (May 2014), available at
http://www.agcensus.usda.gov/Publications/2012/Full_Report/Volume_1,_ Chapter_
1_US/usv1.pdf (last reviewed June 1, 2016). Therefore, the exclusion does not even apply
to approximately 92.5% of the farms in the state because they have fewer than three
employees. Furthermore, the additional costs to the remaining 7.5% would be proportional
to the number of employees and would not fall disproportionately on smaller operations
because workers’ compensation is payroll-based. Finally, the Bureau contends that the
exclusion protects “the culture of ‘neighboring’—in which farmers and ranchers help
perform work on their neighbors’ farms and ranches,” which it claims “is a critical part of
the culture of rural communities,” and preserves the tradition of children or other family
members performing “farm and ranch duties as chores.” However, volunteer or unpaid
workers are generally not entitled to workers’ compensation benefits, see Jelso v. World
Balloon Corp., 1981-NMCA-138, ¶ 31, 97 N.M. 164, 637 P.2d 846, so the practices of
“neighboring” and children performing chores are not affected by the exclusion. Therefore,
Workers have met their burden by demonstrating that there is no rational relationship
between this government interest and the exclusion of farm and ranch laborers from the Act.

{44} Fifth and finally, Workers have proved that there is no legitimate government
interest in subjecting only workplace injuries suffered by farm and ranch laborers to the
common law tort system, while any other workplace injury suffered by an employee of an
agricultural employer goes through the workers’ compensation system. Because all workers
subject to the Act lose any common law negligence claims that they may have had otherwise,
see § 52-1-6(D), (E), the Bureau argues that the Legislature merely intended to preserve the
availability of tort remedies for workplace injuries suffered by farm and ranch laborers. The
Bureau also claims that the exclusion of farm and ranch laborers from the workers’
compensation system and their employers’ ability to voluntarily elect into or out of the
system is beneficial to both parties. However, contrary to these assertions, the trade-off
between common law negligence claims and no-fault remedies under the Act, see Salazar,
2007-NMSC-019, ¶ 11, does not create equality between tort claims and workers’
compensation claims or provide any reason for drawing a distinction between workplace
injuries suffered by farm and ranch laborers and those suffered by any other employee of an
agricultural employer. Further, it does not explain why this is a legitimate government
purpose. This distinction imposes a negligence standard of fault on agricultural employers
for a particular class of their employees while establishing a no-fault standard for all others.
Additionally, as the parties observed at oral argument, farm and ranch laborers are engaged
in a risky profession where workplace accidents frequently result from inherently
unpredictable working conditions. For example, in this case, Ms. Aguirre slipped and fell
in a field and Mr. Rodriguez suffered a devastating injury when he was “head-butted” by a
cow. It is extremely unlikely that either of these injuries could be the basis for a common
law claim since both apparently resulted from unpredictable working conditions. Workers
have rightly indicated that there is neither any articulated reason for this policy nor a
government interest in it.

21
III. OUR HOLDING IN THIS CASE WILL APPLY ON A MODIFIED
PROSPECTIVE BASIS

{45} The UEF, Employers, and various amici urge this Court to enter a prospective or
modified prospective holding in this case that the exclusion is unconstitutional. Under our
prospectivity analysis, we first presume that a new civil rule operates retroactively, but that
presumption may then be overcome by “a sufficiently weighty combination” of the three
factors described by the United States Supreme Court in Chevron Oil Co. v. Huson, 404 U.S.
97, 106-07 (1971), overruled by Harper v. Va. Dep’t of Taxation, 509 U.S. 86 (1993).
Beavers v. Johnson Controls World Servs., Inc., 1994-NMSC-094, ¶¶ 20-22, 118 N.M. 391,
881 P.2d 1376.

{46} Under the first Chevron factor, we consider the degree to which our decision in this
case “establish[es] a new principle of law, either by overruling clear past precedent on which
litigants may have relied, or by deciding an issue of first impression whose resolution was
not clearly foreshadowed.” Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, ¶ 31,
147 N.M. 678, 228 P.3d 462 (internal quotation marks and citations omitted). Farm and
ranch laborers have been explicitly excluded from the Act since 1937. See 1937 N.M. Laws,
ch. 92, § 2. This long-standing exclusion has been consistently enforced by New Mexico
appellate courts, see Tanner, 1995-NMCA-053, ¶ 12; Cueto, 1980-NMCA-036, ¶¶ 9-10;
Varela v. Mounho, 1978-NMCA-086, ¶ 9, 92 N.M. 147, 584 P.2d 194, and our holding in
this case was not clearly foreshadowed by case law or otherwise.

{47} Further, substantial reliance interests would be upset by retroactive application of our
holding here. The farm and ranch laborer exclusion primarily affects contracts between
employers and employees in the workplace. See Beavers, 1994-NMSC-094, ¶ 28 (“The
reliance interest to be protected by a holding of nonretroactivity is strongest in commercial
settings, in which rules of contract and property law may underlie the negotiations between
or among parties to a transaction.”). Also, some employers acted in reliance on the
exclusion and did not purchase workers’ compensation insurance; however, the ruling in this
case will require them to do so and to assume various other new duties related to providing
workers’ compensation coverage to farm and ranch laborers. See Lopez v. Maez, 1982-
NMSC-103, ¶ 17, 98 N.M. 625, 651 P.2d 1269 (applying new rule prospectively because it
imposed a new duty and “the imposition of this new liability on tavernowners may subject
[them] to liability when they are not properly insured”).

{48} Additionally, we do not agree with Workers’ argument that it was unreasonable and
a risk for employers to continue to rely on the exclusion rather than purchasing insurance
that would cover farm and ranch laborers after the district court’s final judgment in Griego
in 2012. By following this reasoning, we would effectively bind all farm and ranch
employers to a single district court decision to which they were not parties. See Rule 12-
405(A)-(C) NMRA (unpublished opinions are non-precedential); NMSA 1978, § 44-6-12
(1975) (No declaratory judgment “shall prejudice the rights of persons not parties to the
proceeding.”). Accordingly, we hold that the first Chevron factor weighs heavily in favor

22
of prospective application of our holding in this case.

{49} Under the second Chevron factor, we must “weigh the merits and demerits” of
retroactive application “by looking to the prior history of the rule in question, its purpose and
effect, and whether retrospective operation will further or retard its operation.” Marckstadt,
2010-NMSC-001, ¶ 31 (internal quotation marks and citations omitted). Despite the equal
protection interests weighing in favor of retroactivity, we weigh this factor in favor of
prospective application. The numerous impracticalities a retroactive holding could create
within the New Mexico workers’ compensation scheme may significantly hinder the Act’s
purpose of creating “a quick and efficient system” of workers’ compensation. See Wagner,
2005-NMSC-016, ¶ 25. For example, the Administration and the UEF convincingly argue
that a retroactive holding would create a number of disputes regarding whether employers
and workers should have complied with various mandatory provisions of the Act and as to
the scope of the UEF’s duties to uninsured employers. Additionally, it would be contrary
to the purposes of the Act to impose “quasi-criminal sanctions” on previously uninsured
employers, Wegner v. Hair Prods. of Tex., 2005-NMCA-043, ¶ 10, 137 N.M. 328, 110 P.3d
544, based on an obligation to provide workers’ compensation insurance that originated with
this case. See § 52-1-9.1(G)(2) (outlining a mandatory minimum 15% penalty against
uninsured employers).

{50} Under the third Chevron factor, we must “weigh[] the inequity imposed by
retroactive application” to determine whether the “decision . . . could produce substantial
inequitable results if applied retroactively . . . .” Marckstadt, 2010-NMSC-001, ¶ 31
(internal quotation marks and citations omitted). This Court has previously recognized that
“[t]he greater the extent a potential defendant can be said to have relied on the law as it stood
at the time he or she acted, the more inequitable it would be to apply the new rule
retroactively.” Beavers, 1994-NMSC-094, ¶ 38. We therefore weigh the third Chevron
factor in favor of prospective application due to the long-standing, substantial, and
reasonable reliance of employers on the exclusion’s validity and the inequities that would
arise from the practical difficulties of retroactive application.

{51} Weighing the Chevron factors together, we conclude that the reliance interests of
employers combined with the practical difficulties that would result from retroactive
application are sufficient to overcome our presumption of retroactivity in this case.
Accordingly, we hold that the Act’s farm and ranch laborer exclusion is unconstitutional and
direct that our holding be prospectively applied to any injury that manifests after the date
that our mandate issues in this case pursuant to Rule 12-402(B). See Montell v. Orndorff,
1960-NMSC-063, ¶ 9, 67 N.M. 156, 353 P.2d 680 (concluding that the “occurrence of
injury” refers to “when disability appears—in other words, when the injury . . . becomes
manifest.” (internal quotation marks and citation omitted)); De La Torre v. Kennecott
Copper Corp., 1976-NMCA-108, ¶¶ 18-19, 89 N.M. 683, 556 P.2d 839 (clarifying that the
version of workers’ compensation law applicable to a claim is the law as of the date when
the compensable disability should have been reasonably apparent to the worker). Further,
we modify our prospective holding by applying it to the litigants in this case, Ms. Aguirre

23
and Mr. Rodriguez, “for having afforded us the opportunity to change an outmoded and
unjust rule of law.” Lopez, 1982-NMSC-103, ¶ 18.

IV. CONCLUSION

{52} We remand these consolidated cases to their respective WCJs for resolution without
reliance on the farm and ranch laborer exclusion in Section 52-1-6(A). We also order that
the Court of Appeals’ opinion in Rodriguez v. Brand West Dairy, 2015-NMCA-097 be
republished. Because of our disposition and its prospective application, Respondents’
motion for leave to file a reply dated April 13, 2016 and any other outstanding motions in
the two consolidated cases before this Court are denied.

{53} IT IS SO ORDERED.

____________________________________
EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
BARBARA J. VIGIL, Justice

JUDITH K. NAKAMURA, Justice, dissenting

Nakamura, J. (dissenting).

{54} Since 1917, when the Workers’ Compensation Act (WCA), NMSA 1978, §§ 52-1-1
to -70 (1917, as amended through 2015), was originally enacted, the Legislature has allowed
employers of farm and ranch laborers to decide for themselves whether to participate in the
workers’ compensation scheme. See NMSA 1978, § 52-1-6(A)-(B) (1990); Laws 1917, ch.
83 §§ 2, 10. For nearly 100 years, the Legislature has maintained its view that the best
policy for New Mexico is that each farm and ranch employing more than three workers
decides for itself whether to incur the costs of workers’ compensation or to face the costs of
potential tort liability. To that end, Section 52-1-6(A) excludes employers of farm and ranch
laborers from the Legislature’s requirement subjecting employers of three or more workers
to the provisions of the WCA.

{55} Today, the majority opinion exercises this Court’s power of judicial review and holds

24
that this 99-year-old statutory scheme violates the New Mexico Constitution. By
invalidating Section 52-1-6(A)’s exclusion of farms and ranches from mandatory
participation in the state workers’ compensation scheme, the majority opinion has supplanted
the Legislature’s view of what, all things considered, is best for New Mexico. But this Court
has neither the necessary facts nor the institutional mission to substitute our judgment for
that of the Legislature regarding what is best for any particular industry within the State’s
economy.

{56} The farm-and-ranch exclusion may be perceived as unfair, unwise, or improvident
in its treatment of laborers who work for farms and ranches electing exemption from the
WCA, but this Court may exercise its greatest power to invalidate a statute only if the statute
contravenes the federal Constitution or the New Mexico Constitution. This case raises no
federal claim, and, under well-established law, the Legislature’s decision to allow employers
of farm and ranch laborers to decide for themselves whether to be subject to the WCA or to
face tort liability does not violate any right guaranteed by the New Mexico Constitution.
Because Section 52-1-6 is socioeconomic legislation, the Worker-Respondents have a right
against the disparate treatment allowed by this statute only if the statute does not rationally
further a legitimate legislative purpose. The Worker-Respondents simply cannot make that
showing. By enacting Section 52-1-6, the Legislature designed a statutory scheme that
rationally controls costs for New Mexico farms and ranches. The statute creates a choice
which allows these employers to elect the option that entails the lowest expected costs, and
29% of New Mexico farms and ranches (including many of the largest agricultural firms in
the State) have elected to provide workers’ compensation. This statute survives an equal
protection challenge. Additionally, by nullifying the Legislature’s statutory scheme, the
majority opinion threatens to detrimentally impact small, economically fragile farms in New
Mexico. Therefore, I respectfully dissent.

I. SECTION 52-1-6(A) IS CONSTITUTIONAL

{57} This is not a complex case. Noe Rodriguez and Maria Aguirre were injured on the
job. Rodriguez and Aguirre were employed by a ranch and a farm, respectively, that had
elected not to provide workers’ compensation benefits and which, under Section 52-1-6(A),
were not required to do so. Rodriguez and Aguirre claim that the Legislature’s exclusion of
employers of farm and ranch laborers from mandatory participation in the workers’
compensation scheme violates their rights to equal protection under Article II, Section 18
of the New Mexico Constitution.

{58} Equal protection doctrine requires that Rodriguez and Aguirre “first prove that they
are similarly situated to another group but are treated dissimilarly.” Breen v. Carlsbad Mun.
Sch., 2005-NMSC-028, ¶ 8, 138 N.M. 331, 120 P.3d 413. That showing is easily met.
Rodriguez and Aguirre are similar to all other workers in New Mexico who suffer work-
related injuries and are in need of benefits. But Aguirre’s and Rodriguez’s employers
elected exemption from the WCA, and, therefore, Aguirre and Rodriguez are treated
dissimilarly from other workers whose employers participate in the workers’ compensation

25
scheme. Whereas injured workers in the latter group receive workers’ compensation
benefits, injured workers in the former group do not, even though they may seek other forms
of recovery such as damages in tort. Thus, Section 52-1-6(A) results in dissimilar treatment
of workers injured on the job.

{59} Upon a showing of dissimilar treatment, this Court determines what level of scrutiny
applies to the challenged legislation. Breen, 2005-NMSC-028, ¶ 8. Section 52-1-6(A) is
economic legislation that does not subject a suspect or sensitive class to different treatment,
and, therefore, rational basis review applies. See Griego v. Oliver, 2014-NMSC-003, ¶ 39,
316 P.3d 865; Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 12, 137 N.M. 734, 114 P.3d
1050 (“Ordinarily we defer to the Legislature’s judgment in enacting social and economic
legislation such as the WCA.”). Rational basis review is the most deferential standard that
a court applies when reviewing the constitutionality of legislation, “and the burden is on the
party challenging the legislation to prove that it ‘is not rationally related to a legitimate
government[al] purpose.’” Breen, 2005-NMSC-028, ¶ 11 (alteration in original) (quoting
Wagner, 2005-NMSC-016, ¶¶ 12, 24). Under rational basis review, our task is to decide,
first, whether the Legislature enacted a statute to further a permissible legislative purpose
and, second, whether the challenged statutory provision is rationally related to that purpose.
Kane v. City of Albuquerque, 2015-NMSC-027, ¶¶ 17-22, 358 P.3d 249.

{60} In considering the Legislature’s purpose when enacting and maintaining Section 52-
1-6(A)’s farm-and-ranch exclusion, the record evidence and legislative history indicate that
the Legislature was motivated to contain regulatory costs incurred by economically
precarious farms and ranches in New Mexico. For instance, in 2009, the Legislature
considered bills that would have removed the WCA’s exclusion for employers of farm and
ranch laborers. See H.B. 62, 49th Leg., Reg. Sess. (N.M. 2009); S.B. 9, 49th Leg., Reg.
Sess. (N.M. 2009). In considering these bills, the Legislature had available the Fiscal Impact
Report (FIR) for House Bill 62. Members of the House Business and Industry Committee
relied on the FIR in rejecting House Bill 62 by a vote of 10-2.

{61} According to the FIR for House Bill 62, the “N.M. Department of Agriculture stated
the proposed legislation would introduce a significant financial strain on the farming and
ranching part of the industry.” FIR for H.B. 62, at 3 (Feb. 05, 2009) (2009 FIR). The FIR
also included cost projections to farm and ranch employers submitted by the Workers’
Compensation Administration, the National Council of Compensation Insurance (NCCI),
and New Mexico State University agricultural economists. See id. The Workers’
Compensation Administration had projected the annual cost of the bill “to farm and ranch
employers to be an additional $10.5 million annually. . . [which] represents a cost increase
of approximately 1.5 percent.” Id. The NCCI had similarly estimated that House Bill 62
“would increase New Mexico payroll costs by 0.4 percent and increase premiums up to 1.1
percent.” Id. The FIR additionally indicated that, according to Workers’ Compensation
Administration data, the average cost per claim was approximately $16,876. Id. In contrast,
the FIR reported that the average net income per farm in the 2002 census of agriculture was
$19,373—only slightly more than the average cost per workers’ compensation claim. Id.

26
Indeed, in 2012, the average net cash income from farming operations in New Mexico was
only $9,501. See United States Department of Agriculture, National Agricultural Statistics
Service, 2015 State Agricultural Overview New Mexico, http://tinyurl.com/jjpx7ch (last
viewed June 28, 2016). Therefore, legislative facts demonstrate a legislative concern to
maintain Section 52-1-6(A) in order to contain costs incurred by fiscally vulnerable farms
and ranches. See Oliver, 2014-NMSC-003, ¶ 47 n. 7 (“[T]his Court . . . may take judicial
notice of legislative facts by resorting to whatever materials it may have at its disposal
establishing or tending to establish those facts.” (alteration in original) (internal quotation
marks and citation omitted)).

{62} Under rational basis review, the Legislature’s purpose to safeguard farms and ranches
in New Mexico from the imposition of additional overhead costs is permissible. There can
be no dispute that the Legislature may pursue the legitimate purpose to protect certain
industries from additional costs or to lower overhead costs. See, e.g., Garcia v. La Farge,
1995-NMSC-019, ¶ 24, 119 N.M. 532, 893 P.2d 428 (finding under rational basis review
that lowering the costs of malpractice insurance for health care providers was a legitimate
legislative purpose); Schirmer v. Homestake Min. Co., 1994-NMSC-095, ¶ 8, 118 N.M. 420,
882 P.2d 11 (“[T]he legislative goal of maintaining reasonable costs to employers is a
legitimate legislative goal . . . .”); Marrujo v. N.M. State Highway Transp. Dep’t, 1994-
NMSC-116, ¶ 23, 118 N.M. 753, 887 P.2d 747 (finding under rational basis review that the
reduction of costs to local governments is a valid legislative goal); Terry v. N.M. State
Highway Comm’n, 1982-NMSC-047, ¶ 8, 98 N.M. 119, 645 P.2d 1377 (citing Howell v.
Burk, 1977-NMCA-077, ¶ 8, 90 N.M. 688, 568 P.2d 214 (upholding a statute as rationally
related to the permissible legislative goal of guarding against the imposition of costs on firms
in the construction industry)). The majority opinion does not suggest otherwise.

{63} The only remaining question, then, is whether Section 52-1-6(A) is rationally related
to the legitimate purpose of insulating New Mexico farms and ranches from additional costs.
It is. Section 52-1-6(A), in conjunction with Subsection (B), creates an architecture by
which employers in the agricultural industry choose which costs they incur. There are costs
involved with being subject to the WCA. Those costs include insurance premiums and fees
collected pursuant to NMSA 1978, § 52-5-19 (2004). Yet, despite these costs, there are good
reasons why a farm or ranch would voluntarily elect to be subject to the WCA, as permitted
by Section 52-1-6(B). The WCA provides a predictable schedule of benefits and makes
those benefits the exclusive remedy for an injured worker. As the record in this case reflects,
“[t]here is a benefit to having insurance in place to take care of the injured worker and it
might be an incentive to get a higher quality worker if they are aware of the benefits.
Employers are no longer exposed to possible tort lawsuits.” Griego v. N.M. Workers’
Comp. Admin., No. CV 2009-10130, 20, ¶ 141 (N.M. 2nd Jud. D., Oct. 17, 2011) (final
pretrial order).4 Likewise, there are risks associated with a farm or ranch’s decision to

4
As the majority opinion notes, materials related to Griego v. New Mexico Workers’
Compensation Administration were attached by Aguirre before the Workers’ Compensation

27
forego WCA participation: such employers risk the possibility of unpredictable tort
judgments and other costs associated with employee injury.

{64} In other words, Subsections (A) and (B) allocate to each farm and ranch the choice
whether to pay the costs of being subject to the WCA or to face potential tort liability. The
Legislature’s allocation of this choice to each farm and ranch is rationally related to its goal
to contain the costs for the farming and ranching industry because each farm and ranch is in
the best position to know whether it would be more cost-effective to participate in the
workers’ compensation scheme or to incur the risk of tort liability and associated litigation
costs. New Mexico farms and ranches that employ more than three employees vary greatly
in the number of employees hired, the positions hired for, other fixed and marginal costs,
products produced, annual sales, and profitability. See, e.g., United States Department of
Agriculture, National Agricultural Statistics Service, 2015 State Agricultural Overview New
Mexico, http://tinyurl.com/jjpx7ch (last viewed June 28, 2016); see also 2014 New Mexico
Agricultural Statistics Bulletin, 18, http://tinyurl.com/zahewua (last viewed June 28, 2016).
Because of that variety, it is far from arbitrary for the Legislature to allow each farm and
ranch to decide for itself whether to pay the costs of the WCA or to risk tort liability. Each
farm and ranch will very likely elect the option that entails the lowest expected costs, thereby
furthering the Legislature’s legitimate goal to support New Mexico’s economically
precarious farms and ranches.

{65} In fact, the record demonstrates that 29% of farms and ranches that employ more than
three workers have voluntarily elected to be subject to the WCA. This Court heard at oral
argument that, of the farms and ranches who have elected to participate in the WCA, the
majority are the largest agribusinesses who hire the largest number and largest variety of
workers. It comes as no surprise that larger firms in New Mexico’s farming and ranching
industry have decided that it is best for their businesses to be subject to the WCA. By doing
so, these businesses fix costs and eliminate exposure to unpredictable tort liability.
Conversely, the smaller farms and ranches have decided that, given their smaller economies
of scale and smaller profit margins, it is best for their businesses to avoid the costs (and
forgo the benefits) of the WCA and to risk tort liability instead. So, while the majority
opinion may purport to correct a power disparity between workers and the largest firms in
the agricultural industry, its decision will likely have the effect of raising costs for the most
economically precarious, smaller New Mexico farms and ranches. By protecting against
such circumstance, Section 52-1-6(A) rationally furthers the legitimate legislative purpose.

II. THE MAJORITY OPINION ERRS IN CONCLUDING THAT SECTION 52-1-
6(A) IS UNCONSTITUTIONAL

{66} The majority opinion asserts that it “remain[s] highly deferential to the Legislature
by presuming the constitutionality of social and economic legislation.” Maj. Op. ¶ 27. But

Judge and accordingly form a part of the record in this case. See Maj. Op., ¶ 4.

28
it is difficult to see how. Instead of interpreting Section 52-1-6 according to its plain
language and then employing the traditional doctrine of rational basis review, the majority
opinion does something quite different. First, the majority opinion misinterprets Section 52-
1-6 to create a distinction that the Legislature neither drew nor intended. Maj. Op. ¶¶ 15-20.
The majority opinion then misapplies rational basis scrutiny to hold Section 52-1-6(A)
unconstitutional and relies on inapposite case law to support that holding. Maj. Op. ¶¶ 28-
33. Such analysis is neither deferential to the Legislature nor willing to presume the
constitutionality of social and economic legislation. And the majority opinion departs from
the reasoning and the traditional equal protection analysis employed by myriad other state
appellate courts and the United States Supreme Court to uphold analogous farm-and-ranch
exceptions to mandatory workers’ compensation statutes against identical state and federal
constitutional challenges.5

5
See, e.g., Collins v. Day, 644 N.E.2d 72, 82 (Ind. 1994) (holding that exemption for
agricultural employers and employees from mandatory workers’ compensation coverage did
not violate the equal privileges and immunities guarantee of the state constitution); Haney
v. N.D. Workers Comp. Bureau, 518 N.W.2d 195, 202 (N.D. 1994) (holding that statutory
provision excluding agricultural employees from mandatory workers’ compensation
coverage did not violate state equal protection guarantee); Baskin v. State ex rel. Worker’s
Comp. Div., 722 P.2d 151, 156 (Wyo. 1986) (holding “exception of ‘ranching and
agriculture’ from extra-hazardous occupations of teaming and truck driving and motor
delivery” subject to mandatory workers compensation’ coverage did not violate state or
federal equal protection guarantees); Eastway v. Eisenga, 362 N.W.2d 684, 689 (Mich.
1984) (holding that exemption for some agricultural employers from mandatory participation
in workers’ compensation scheme did not violate either federal or state equal protection
guarantees); Ross v. Ross, 308 N.W.2d 50, 53 (Iowa 1981) (rejecting federal equal protection
challenge to statute exempting employers of familial farmworkers from compulsory
participation in workers’ compensation scheme); Otto v. Hahn, 306 N.W.2d 587, 592 (Neb.
1981) (rejecting federal equal protection challenge to statute excluding employers of
farmworkers from mandatory participation in workers’ compensation scheme); Fitzpatrick
v. Crestfield Farm, Inc., 582 S.W.2d 44, 45 (Ky. App. 1978) (holding that exemption for
employers “engaged solely in agriculture” from mandatory participation in workers’
compensation scheme did not violate state or federal equal protection guarantees); Anaya v.
Indus. Comm’n, 512 P.2d 625, 626 (Colo. 1973) (holding that the “exclusion of farm and
ranch labor” from mandatory workers’ compensation benefits did not violate equal
protection (citing Romero v. Hodgson, 319 F. Supp. 1201, 1203 (N.D. Cal. 1970) (per
curiam, three-judge court), aff’d 403 U.S. 901 (1971) (holding that exclusion of agricultural
labor from the definition of employment in both California and federal unemployment
compensation statutes did not violate the federal equal protection guarantee)); State ex rel.
Hammond v. Hager, 563 P.2d 52, 57 (Mont. 1972) (holding that exclusion for “employers
engaged in farming and stock raising” from workers’ compensation scheme did not violate
the federal equal protection guarantee); Sayles v. Foley, 96 A. 340, 344 (R.I. 1916) (holding
that exclusion for farm laborers and other laborers involved in agricultural pursuits from

29
A. The majority opinion misinterprets Section 52-1-6 in concluding that the statute
is unconstitutional

{67} This Court may not interpret a statute in ways that render it constitutionally infirm.
See, e.g., State v. Flores, 2004-NMSC-021, ¶ 16, 135 N.M. 759, 93 P.3d 1264 (“When
construing a statute we are to construe it, if possible, so that it will be constitutional.”
(internal quotation marks and citation omitted)); accord Huey v. Lente, 1973-NMSC-098,
¶ 6, 85 N.M. 597, 514 P.2d 1093 (“[I]f a statute is susceptible to two constructions, one
supporting it and the other rendering it void, a court should adopt the construction which will
uphold its constitutionality.”). Yet, that is what the majority opinion has done.

{68} According to the majority opinion, Section 52-1-6(A) draws a line between, on the
one hand, “farm and ranch laborers,” and, on the other hand, all other employees of farms
and ranches. Maj. Op. ¶¶ 15-20. Not every employee of a farm or ranch is a “farm and
ranch laborer.” Some larger farms and ranches also hire, for example, staff who work
primarily in the packaging of crops, sales, and administration. The majority opinion
interprets Section 52-1-6(A) to allow farms and ranches to exclude “farm and ranch
laborers” from workers’ compensation, but not other employees, such as administrative or
sales staff. Maj. Op. ¶¶ 15-20. The majority opinion concludes that distinction is irrational
and, therefore, holds that Section 52-1-6(A) violates the New Mexico Constitution. Maj. Op.
¶¶ 28-33.

{69} Irrespective of whether it would be irrational for the Legislature to allow farms and
ranches to exclude “farm and ranch laborers” from workers’ compensation while not
permitting farms and ranches to exclude other employees, this is not a distinction that the
Legislature drew. The distinction that the majority opinion focuses on is simply not in the
statute. “The text of a statute or rule is the primary, essential source of its meaning.” NMSA
1978, § 12-2A-19 (1997). And the text of Section 52-1-6(A) does not remotely suggest that
the Legislature intended to permit farms and ranches to exclude laborers who primarily work
with the crops and livestock, but not other employees.

state workers’ compensation scheme did not violate state or federal constitutions); Hunter
v. Colfax Consol. Coal Co., 154 N.W. 1037, 1052-53 (Iowa 1915) (same); In re Opinion of
Justices, 96 N.E. 308, 315 (Mass. 1911) (concluding that exclusion of farm laborers from
provision of workers’ compensation act provision modifying common law defenses to
common law negligence claims did not violate the federal constitution); see also Middleton
v. Tex. Power & Light Co., 249 U.S. 152, 162 (1918) (concluding that Texas Employer’s
Liability Act’s exclusion from mandatory insurance coverage for injuries sustained by, inter
alia, farm laborers did not violate the federal equal protection guarantee); New York Central
R.R. Co. v. White, 243 U.S. 188, 208 (1916) (concluding that the exclusion of farm laborers
from New York workers’ compensation scheme did not violate the federal equal protection
guarantee).

30
{70} Rather, Section 52-1-6(A) indicates that the Legislature permits farms and ranches
to exclude themselves from mandatory participation in the workers’ compensation scheme.
The statute unambiguously provides an exemption for employers, not certain subsets of their
employees. Section 52-1-6 plainly states that “[t]he provision of the [WCA] . . . shall not
apply to employers of . . . farm and ranch laborers.” § 52-1-6(A). The statute also says
“employers of . . . farm and ranch laborers” can make “[a]n election to be subject to the
[WCA].” § 52-1-6(B). Accordingly, the statute’s exclusion from mandatory participation
in the workers’ compensation scheme applies to employers, and the choice to participate also
resides with employers. See § 52-1-6(A)-(B).

{71} Instead of following the plain text of the statute, the majority opinion adopts an
erroneous reading offered by the Court of Appeals in Cueto v. Stahmann Farms, Inc., 1980-
NMCA-036, 94 N.M. 223, 608 P.2d 535, and Holguin v. Billy the Kid Produce, Inc., 1990-
NMCA-073, 100 N.M. 287, 795 P.2d 92. See Maj. Op. ¶¶ 15-18. Cueto and Holguin read
Section 52-1-6(A)’s exclusion to turn, not on the business of the employer, but rather on the
primary job duties of the employee. See Holguin, 1990-NMCA-073, ¶ 19; Cueto, 1980-
NMCA-036, ¶ 6. The majority opinion reasons that Section 52-1-6(A) must mean something
other than what it says because a “‘literal interpretation’” of the statute would lead to
“‘absurd results.’” Maj. Op. ¶ 15 (quoting Cueto, 1980-NMCA-036, ¶ 6). According to the
majority opinion, a literal reading of the text would allow any employer—despite the
industry in which it operates—to exclude its entire workforce from workers’ compensation
coverage simply by hiring a couple of farm or ranch laborers. Maj. Op. ¶ 15. Imagine, for
example, a semiconductor chip manufacturing facility planting an adjacent pecan orchard.
No court in New Mexico could reasonably interpret Section 52-1-6(A) to provide that such
a factory could exclude itself from the provisions of the WCA. But a court need not interpret
the statute as the majority opinion does in order to deny the hypothetical factory the benefit
of the farm-and-ranch exclusion.

{72} Contrary to the majority opinion’s suggestion, its interpretation of Section 52-1-6(A)
is not the only interpretation that avoids the absurd result. Section 52-1-6(A) should be read
not as allowing the exclusion of only farm and ranch laborers from the mandatory provisions
of the WCA, but rather as allowing the exclusion of employers whose workforce is mainly
comprised of farm and ranch laborers. In other words, if an employer mainly employs farm
and ranch laborers (i.e., if an employer is a farm or a ranch), then under Subsections (A) and
(B), that employer is not required to participate in the workers’ compensation scheme,
although it may voluntarily elect to do so.

{73} Not only is this interpretation available to avoid the absurd result the majority
opinion envisions, it also reflects this Court’s precedent. This Court has previously
determined that the farm-and-ranch exclusion protects a farmer or rancher against workers’
compensation claims brought by employees who are not farm and ranch laborers. See
Williams v. Cooper, 1953-NMSC-050, ¶¶ 10-13, 57 N.M. 373, 258 P.2d 1139. In Williams,
this Court reversed an award of workers’ compensation because the statute excluded the
workers’ compensation claim of an employee who was injured while constructing an

31
addition to a dance hall that a rancher operated. 1953-NMSC-050, ¶¶ 10-13. This Court
emphasized “‘the fact that it is not the nature of the particular work in which the employee
is engaged at the time of his injury but rather the character of his employer’s occupation
which controls . . . .’” Id. ¶ 7 (emphasis added) (quoting Rumley v. Middle Rio Grande
Conservancy Dist., 1936-NMSC-023, ¶ 16, 40 N.M. 183, 57 P.2d 283). Accordingly, this
Court held that “the occupation or pursuit of the defendant [which was ranching] did not
subject him to liability under the act, even if at the moment the [non-ranching] work being
done by the [non-ranch-laborer] plaintiff with a different factual background would have
rendered his injury compensable [i.e. had the plaintiff worked for a non-rancher].” Id. ¶ 10.
Williams is guiding precedent regarding the interpretation of the farm-and-ranch exclusion,
yet the majority opinion avoids it.

{74} Based on the text of the statute and our own precedent, this Court is compelled to
read Section 52-1-6(A) as allowing the exclusion, not of farm and ranch laborers themselves,
but of employers whose workforce is mainly comprised of farm and ranch laborers. This
interpretation faithfully adheres to the text of Section 52-1-6(A). It effectuates the
Legislature’s purpose to contain costs incurred by New Mexico’s farms and ranches. It
avoids the absurd result of permitting any employer from excluding itself from the
provisions of the WCA by hiring a few farm or ranch laborers. It follows this Court’s
previous readings of the statute. See Williams, 1953-NMSC-050, ¶ 10. And, most
importantly, it does not create a constitutionally infirm distinction. See Huey, 1973-NMSC-
098, ¶ 6 (“[I]f a statute is susceptible to two constructions, . . . a court should adopt the
construction which will uphold its constitutionality.”).

{75} Yet, for unconvincing reasons, the majority opinion adopts an alternative reading.
First, the majority opinion relies on Griego v. Oliver to support its view that, contrary to the
plain text of the statute, it may nevertheless adopt Cueto’s dubious interpretation in order to
hold the statute unconstitutional. Maj. Op. ¶ 19 (citing Oliver, 2014-NMSC-003, ¶ 24). But
Oliver is inapposite. The marriage statutes under review in Oliver could not be interpreted
to authorize marriage between same-gender couples, which would have saved the statutes
from constitutional challenge. See Oliver, 2014-NMSC-003, ¶¶ 19-24. By contrast, the
plain text of Section 52-1-6(A) and this Court’s precedents support an interpretation that not
only materially differs from the interpretation reached by Cueto and adopted by the majority
opinion but which also saves Section 52-1-6(A) from the constitutional challenge at issue.

{76} Second, the majority opinion’s reliance on Koger v. A.T. Woods, Inc. is misplaced.
See Maj. Op. ¶ 20 (citing 1934-NMSC-020, ¶¶ 17-20, 38 N.M. 241, 31 P.2d 255). While
Koger seemed to apply the exclusion based upon “the general nature of the object of
employment [of the employee],” 1934-NMSC-020, ¶ 17, after Koger was decided, the
Legislature amended the WCA to create an explicit exclusion for “employers . . . of farm and
ranch laborers.” Laws 1937, ch. 92, § 2 (emphasis added). Looking to that statute, this
Court in Williams focused not on the employee’s primary job duties, nor on the particular
work the employee was engaged in when injured, but rather expressly said that it is “the
character of his employer’s occupation which controls . . . .” 1953-NMSC-050, ¶ 7

32
(emphasis added) (internal quotation marks and citation omitted). On that basis, this Court
reversed an award of workers’ compensation benefits. Id. ¶ 13.

{77} Third, the majority opinion erroneously grounds its interpretation on legislative
silence. See Maj. Op. ¶ 20. Notwithstanding this Court’s own precedent, the majority
opinion notes that the Cueto Court of Appeals interpreted Section 52-1-6(A) to allow the
exclusion of only farm and ranch laborers from workers’ compensation coverage. The
majority opinion then reasons that, because the Legislature did not subsequently amend the
statute, the Legislature therefore intended a meaning different than what the text of the
statute expressly provides. Maj. Op. ¶ 20 (citing Cueto, 1980-NMCA-036, ¶¶ 6-7). This
reasoning is unpersuasive.

{78} Inferences based on the Legislature’s silence subsequent to a court’s decision are an
exceptionally weak method of statutory interpretation. See Zuber v. Allen, 396 U.S. 168, 185
(1969) (“Legislative silence is a poor beacon to follow in discerning the proper statutory
route.”); Norman J. Singer and J.D. Shambie Singer, 2B Sutherland Statutory Construction
§ 49.9, at 124 (7th ed. 2012) (noting that legislative silence is “a weak reed upon which to
lean” (internal quotation marks omitted)). Legislative silence is consistent with any number
of judicial interpretations, no matter how erroneous. Further, the use of legislative silence
as a method of statutory interpretation in this case is inappropriate. When the text of a
statute is clear and unambiguous, as here, this Court gives effect to the text and refrains from
further statutory interpretation. See, e.g., State v. Rivera, 2004-NMSC-001, ¶ 10, 134 N.M.
768, 82 P.3d 939.

{79} Even if it were sound to interpret Section 52-1-6(A) by drawing conclusions from the
Legislature’s silence following Cueto, this is not a case where silence speaks volumes. In
Cueto, the Court of Appeals enforced Section 52-1-6(A)’s exclusion, denying that a
farmworker had a cause of action for workers’ compensation. Cueto, 1980-NMCA-036, ¶
9. The Court of Appeals also summarily rejected the claim that the exclusion violated equal
protection. Cueto, 1980-NMCA-036, ¶ 8 (citing Espanola Hous. Auth. v. Atencio, 1977-
NMSC-074, 90 N.M. 787, 568 P.2d 1233). Given that the Court of Appeals not only
properly rejected a workers’ compensation claim but also upheld the statute from an equal
protection challenge, it is uncertain why the Legislature would have felt pressed to clarify
its already unambiguous exclusion for employers of farm and ranch laborers.

B. The majority opinion relies on inapposite if not questionable case law to
conclude that the Legislature acted arbitrarily

{80} Based on its interpretation of Section 52-1-6(A), the majority opinion concludes that
the Legislature cannot allow farms and ranches to exclude farm and ranch laborers from
workers’ compensation coverage while at the same time requiring farms and ranches to
provide coverage for those employees who are not farm and ranch laborers (such as
administrative staff). Maj. Op. ¶¶ 31-35. The majority opinion reasons that such an instance
of line drawing, which it incorrectly imputes to the Legislature, would arbitrarily further the

33
permissible legislative goal of containing costs for New Mexico farms and ranches. Maj.
Op. ¶¶ 32-35. And the majority opinion reaons that such arbitrariness in serving the goal of
cost containment renders Section 52-1-6(A) unconstitutional. Maj. Op. ¶¶ 32-35.

{81} Assuming arguendo that Section 52-1-6(A) means what the majority opinion reads
it to mean and that the Legislature allocated a choice to farms and ranches only with respect
to their laborers, the statute is still not unconstitutional. This Court has already deferred to
similar instances of legislative line-drawing with respect to the farm-and-ranch exclusion.
In Williams, which rejected the workers’ compensation claim of a non-ranch laborer injured
while performing non-ranch work for a rancher, this Court recognized that it was bound to
defer to the Legislature’s policy, even as we perceived that the line drawing was harsh.
1953-NMSC-050, ¶ 7.

{82} What legal basis does the majority opinion have for taking the opposite approach?
The majority opinion cites a single New Mexico case to support its view that the Legislature
could not draw the line which the majority imputes to it: Schirmer v. Homestake Mining Co.
See Maj. Op. ¶ 33 (citing Schirmer, 1994-NMSC-095, ¶¶ 9-10). Schirmer held that a ten-
year statute of repose that extinguished employees’ claims for injuries resulting from
occupational exposure to radioactive materials violated equal protection because the statute
was arbitrarily related to “the valid legislative goal of lowering employer costs.” 1994-
NMSC-095, ¶ 9. Some injuries caused by the occupational exposure to radiation, the
Schirmer Court reasoned, were equally deserving of recovery even though they develop and
accrue after the ten-year repose date. Id. Because of Schirmer, the majority opinion
concludes that the Legislature, to lower costs to farms and ranches, could not allow farms
and ranches to exclude the claims of only farm and ranch laborers. Maj. Op. ¶ 33.

{83} But Schirmer was almost certainly incorrect when decided. See Coleman v. United
Eng’rs & Constructors, Inc., 1994-NMSC-074, ¶ 10, 118 N.M. 47, 878 P.2d 996 (upholding
a 10-year statute of repose from an equal-protection challenge); Terry, 1982-NMSC-047, ¶
8 (same). Even if Schirmer were not incorrectly decided, the persuasiveness of its holding
is wholly eroded by Garcia, 1995-NMSC-019, ¶¶ 17-18 (upholding the Medical Malpractice
Act’s three-year statute of repose from an equal protection challenge).

{84} In any event, Schirmer is distinguishable. Even if the Legislature drew a line
between farm and ranch laborers who may be excluded from mandatory workers’
compensation and other agribusiness employees for whom coverage is required, that
distinction would not be arbitrary in the same way that the 10-year repose statute in Schirmer
is arbitrary. Section 52-1-6(A), unlike any statute of repose, does not itself necessarily bar
some set of claims. In fact, Section 52-1-6(A) does not necessarily bar any claim. Rather,
the statute allows, and has always allowed, each farm and ranch in New Mexico to decide
for itself whether to provide workers’ compensation coverage for its employees who are
farm and ranch laborers.

{85} Further, the distinction that the majority opinion imputes to the Legislature is not

34
arbitrarily related to the permissible legislative goal of containing costs for farms and
ranches. Unlike the largest firms in agribusiness, not every farm or ranch in New Mexico
employs a variety of workers. Many smaller farms and ranches in our State may only
employ workers who could only be classified as “farm or ranch laborers.” To contain costs
for those smaller operations, the Legislature may permissibly allow each farm and ranch to
choose whether to participate in the workers’ compensation scheme. Again, because of the
great diversity of farms and ranches operating in New Mexico’s agricultural industry, and
because each is best positioned to know its cost structure and its tolerance for the risk of tort
liability, the Legislature’s putative allocation of the choice to each farm and ranch to provide
workers’ compensation coverage only for its farm and ranch laborers would advance its goal
to aid New Mexico farms and ranches in a rational and efficient way. I repeat: 29% of New
Mexico’s farms and ranches have elected to be subject to the WCA; 71% have not. As this
Court heard at oral argument, the majority of the 29% of farms that have elected to be
subject to the WCA are large operations. The Legislature’s decision to allocate a choice to
farms to be subject to the WCA reflects “substantial and real distinction[s]” between the
farms and ranches who choose to provide workers’ compensation coverage and those that
do not. Schirmer, 1994-NMSC-095, ¶ 9. Those real and substantial distinctions track
whether the farm is relatively large or small.

{86} Therefore, Schirmer, even if it were not bad law, is so distinguishable as to provide
no support for the majority opinion’s conclusion. The majority opinion treats Section 52-1-
6(A) as though it furthered cost savings for farms and ranches by, for example, necessarily
excluding workers’ compensation claims of left-handed farm and ranch laborers. But the
legislation under review is nothing like that. The arbitrariness that the majority opinion
perceives is simply not present either in the interpretation that the majority opinion imputes
to the Legislature or in the statutory scheme that the Legislature actually enacted.

C. The majority opinion’s application of a more stringent version of rational basis
review confuses equal protection doctrine

{87} Lastly, I disagree with the majority opinion’s application of the so-called “modern
articulation” of the rational basis test that this Court first referenced in Trujillo v. City of
Albuquerque. See 1998-NMSC-031, ¶ 32, 125 N.M. 721, 965 P.2d 305 (overruling, yet
“subsuming” a heightened, less deferential form of rational basis analysis applied in Alvarez
v. Chavez, 1994-NMCA-133, ¶¶ 16-23,118 N.M. 732, 886 P.2d 461, and Corn v. N.M.
Educators Fed. Credit Union, 1994-NMCA-161, ¶¶ 9-14, 119 N.M. 199, 889 P.2d 234). In
Wagner, this Court explained that under the heightened form of rational basis review the
party challenging a statute must show that it is not rationally related to a legitimate
governmental purpose by “demonstrat[ing] that the classification created by the legislation
is not supported by a ‘firm legal rationale’ or evidence in the record.’” 2005-NMSC-016,
¶ 24 (quoting Corn, 1994-NMCA-161, ¶ 14). Wagner did not apply the heightened standard
to invalidate legislation; instead, Wagner upheld the WCA’s attorney fee limitation from an
equal protection challenge. 2005-NMSC-016, ¶ 32. Nevertheless, Wagner’s dicta regarding
the emergence of a heightened form of rational basis review prompted a member of this

35
Court to write separately. See 2005-NMSC-016, ¶¶ 37-40 (Bosson, C.J., concurring in part
and dissenting in part). Justice Bosson noted that the Wagner majority failed to explain this
“modern articulation” and, moreover, that the Wagner majority’s departure from traditional
rational basis review was neither desirable nor appropriate. Id.

{88} After Wagner, the “modern articulation” of rational basis review was buried for some
years. Since that decision, this Court has employed rational basis review without reference
to this heightened standard both in analyzing federal and state constitutional claims. See
Kane, 2015-NMSC-027, ¶¶ 17-22 (analyzing a First Amendment challenge and concluding
that the City of Albuquerque’s regulations prohibiting city employees from holding elective
office “are rationally related to legitimate government purposes”); State v. Tafoya, 2010-
NMSC-019, ¶ 26, 148 N.M. 391, 237 P.3d 693 (analyzing state and federal equal protection
challenges and holding that a sentencing court’s discretion to award good time credit
eligibility “is rationally related to the goals of punishment as well as rehabilitation”). This
Court even explained New Mexico’s equal protection doctrine in detail and described
rational basis review in its traditional form without so much as mentioning the so-called
“modern articulation.” See Oliver, 2014-NMSC-003, ¶ 39. Also, in Morris v. Brandenburg,
2016-NMSC-___, ¶ 56, __ P.3d ___, this Court determined that NMSA 1978, Section 30-2-
4, which makes it a crime to deliberately aid another in the taking of his or her own life,
satisfied rational basis review because the statute rationally served legitimate state interests
that this Court deemed to be “firm legal rationale[s];” however, the Morris Court merely
repeated this talisman, again without explaining when a statute is, in fact, supported by a
“firm legal rationale” (as opposed to any conceivable basis). And, now, for the first time,
the majority opinion exercises the “modern articulation” to invalidate longstanding
legislation.

{89} As best as I can discern, the difference between the traditional and the “modern”
versions of rational basis review lies in what is required to demonstrate that a legislative
classification is rationally related to a legitimate governmental purpose. See Corn, 1994-
NMCA-161, ¶ 14. Under traditional rational basis review, for a statute to serve a legitimate
government purpose, the proponent of constitutionality “need only establish the existence
of a conceivable rational basis” for the statute. Kane, 2015-NMSC-027, ¶ 17 (second
emphasis added) (internal quotation marks and citation omitted); see also State v. Cawley,
1990-NMSC-088, ¶ 9, 110 N.M. 705, 799 P.2d 574 (“The party objecting to the legislative
classification has the burden to demonstrate that the classification bears no rational
relationship to a conceivable legislative purpose.”); accord Heller v. Doe, 509 U.S. 312, 320
(1993) (“[A] classification must be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational basis for the
classification.” (internal quotation marks and citations omitted)); Sullivan v. Stroop, 496 U.S.
478, 485 (1990) (“This sort of statutory distinction does not violate the Equal Protection
Clause ‘if any state of facts reasonably may be conceived to justify it.” (internal quotation
marks and citation omitted)). Accordingly, “a legislative choice . . . may be based on
rational speculation unsupported by evidence or empirical data.” Heller, 509 U.S. at 320
(quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1970)); see also Wagner, 2005-

36
NMSC-016, ¶ 39 (Bosson, C.J., concurring in part and dissenting in part).

{90} By contrast, the majority opinion states that a statutory classification must be
supported either by a “firm legal rationale” or “evidence in the record.” Maj. Op. ¶ 28. The
majority opinion reasons that this standard separates New Mexico’s form of rational basis
review for state equal protection claims from rational basis review for federal constitutional
claims. See Maj. Op. ¶¶ 25-27. But it is not clear why the equal protection guarantee of the
New Mexico Constitution should grant this Court more discretion to invalidate
socioeconomic legislation than the federal constitutional analogue. Under New Mexico’s
interstitial approach to determining state constitutional claims that have federal analogues
(such as equal protection), this Court departs from the federal constitutional analysis only
if the federal analysis is flawed or undeveloped or if there are characteristics distinctive to
New Mexico that warrant a different constitutional analysis. State v. Gomez, 1997-NMSC-
006, ¶ 20, 122 N.M. 1777, 932 P.2d 1. There is nothing distinctive or structurally different
about New Mexico such that our judiciary should have a greater power to invalidate
socioeconomic legislation. And I do not agree with the implicit premise that the traditional
form of rational basis review used by every federal and state court—including this Court
when considering federal constitutional challenges—is flawed. See, e.g., Kane, 2015-
NMSC-027, ¶¶ 17-22 (applying traditional rational basis review). The majority opinion’s
analysis overlooks that when a court, in employing traditional rational basis review,
perceives that governmental regulation harbors an animus toward a particular group, rational
basis review suddenly has a “bite.” Thus, rational basis review is a constitutionally
discerning form of scrutiny, and not a flawed “rubber stamp.” Therefore, our interstitial
approach does not permit the majority opinion’s departure from traditional rational basis
review in this case.

{91} There are additional problems with the majority opinion’s use of the “modern
articulation” of rational basis review. To repeat Justice Bosson’s observation in Wagner, the
majority opinion does not explain what differentiates a “firm legal rationale” from any
conceivable basis in the traditional form of rational basis review, as the bench and bar know
it. The majority opinion even seemingly retreats from its own “evidence in the record”
condition, as the majority opinion allows a justification for a statutory classification to be
supported by outside-of-the-record, legislative facts of which a court can take judicial notice.
See Maj. Op. ¶ 28. So, we are left with “firm legal rationale” as the only condition in the
heightened standard that separates the “modern articulation” of rational basis review from
its traditional counterpart. And there is simply no indication of what would constitute a
“firm legal rationale” or how a “firm legal rationale” differs from any conceivable basis
justifying a legislative choice. By requiring a “firm legal rationale,” the majority opinion
overlooks that when the Legislature enacts socioeconomic legislation, the classifications and
distinctions it creates may simply be the result of compromise and “are often impossible of
explanation in strictly legal terms.” Romero, 319 F. Supp. at 1203. Accordingly, under
traditional rational basis review, any conceivable basis justifying a legislative classification
simply is a firm legal rationale to uphold a statute against an equal protection challenge. See,
e.g., Heller, 509 U.S. at 320; Beach Commc’ns, 508 U.S. at 313.

37
{92} Further, the majority opinion’s explanation of the “evidence in the record” condition
is in tension with its requirement for a “firm legal rationale.” By permitting a court to
consider sua sponte legislative facts outside of the record, the so-called heightened standard
suggests that a court may, in fact, attempt to conceive of any permissible legislative purpose
that the statute under review rationally serves. Hence, there is nothing to the “modern
articulation” that should separate it from traditional rational basis review, and because
Section 52-1-6(A) conceivably serves the legislative purpose of cost containment, it survives
rational basis review.

{93} Instead of explaining the “modern articulation,” the majority opinion simply uses the
words “firm legal rationale” as a license to determine that Section 52-1-6(A) is
unconstitutional because it is “underinclusive” with respect to its putative purpose. Maj. Op.
¶¶ 29-35. According to the majority opinion, because Section 52-1-6(A) allows for the
exclusion of farm and ranch laborers (but not other farm and ranch employees) from
workers’ compensation coverage, it is underinclusive with respect to the permissible
legislative purpose of cost containment. See Maj. Op. ¶¶ 32-35. The majority opinion
implies that if the Legislature really had wanted to control costs for New Mexico’s farms and
ranches, it would have allowed farms and ranches to exclude all of their employees, not just
their farm and ranch laborers. See id. The irony, of course, is that this is exactly what the
Legislature did. But, again assuming the majority opinion’s statutory interpretation
arguendo, such underinclusiveness does not call into question the constitutionality of the
statute.

{94} It is the longstanding law of rational basis scrutiny—both in the federal and state
constitutional context—that a legislative body, when enacting socioeconomic legislation, can
solve a problem piecemeal and that such underinclusiveness with respect to that purpose
poses no constitutional flaw.6 By contrast, when applying intermediate scrutiny and strict

6
See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981)
(rejecting an equal protection challenge because “a legislature need not ‘strike at all evils at
the same time or in the same way’” (quoting Semler v. Or. State Bd. of Dental Exam’rs, 294
U.S. 608, 610 (1935)); Vance v. Bradley, 440 U.S. 93, 108 (1979) (rejecting an equal
protection challenge because “[e]ven if the classification involved here is to some extent
both underinclusive and overinclusive, and hence the line drawn by Congress imperfect, it
is nevertheless the rule that in a case like this ‘perfection is by no means required’” (internal
citation omitted)); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“Legislatures
may implement their program step by step, in such economic areas, adopting regulations that
only partially ameliorate a perceived evil and deferring complete elimination of the evil to
future regulations.” (internal citations omitted)); Erznoznik v. City of Jacksonville, 422 U.S.
205, 215 (1975) (“This Court frequently has upheld underinclusive classifications on the
sound theory that a legislature may deal with one part of a problem without addressing all
of it.” (internal citations omitted)); Williamson v. Lee Optical of Okl., 348 U.S. 483, 489
(1955) (“[T]he reform may take one step at a time, addressing itself to the phase of the

38
scrutiny, courts check to determine if a statutory classification is narrowly tailored to a
legislative purpose—i.e., whether the statutory classification is under- or overinclusive with
respect to its putative purpose. See, e.g., In re Vincent, 2007-NMSC-056, ¶ 15, 143 N.M.
56, 172 P.3d 605 (“[F]or a challenged provision to be narrowly tailored to serve a
compelling state interest under a strict scrutiny analysis, it must not be under-inclusive.”).

{95} To be sure, a tailoring analysis can be useful to discern whether the Legislature
created a discriminatory classification with animus toward a particular, discrete group and
disguised that animus with a socioeconomic rationale. See, e.g., Romer v. Evans, 517 U.S.
620, 632 (1996) (“[The] sheer breadth [of Colorado’s Amendment 2 prohibiting
governmental action designed to protect gay and lesbian persons from discrimination] is so
discontinuous with the reasons offered for it that the amendment seems inexplicable by
anything but animus toward the class it affects; it lacks a rational relationship to legitimate
state interests.”); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 449-50 (1985)
(holding that a city’s requirement of a special use permit for the operation of a home for the
mentally disabled was under-inclusive with respect to the city’s putative purposes and,
therefore, rested “on an irrational prejudice against the mentally [disabled]”). If a statutory
classification is highly under- or overinclusive with respect to an ostensible legislative goal,
then there exists good reason to believe that the legislative body had an ulterior,
impermissible motive. See, e.g., Romer, 517 U.S. at 632; City of Cleburne, 473 U.S. at 449-
50. Because rational basis review demands and searches for a permissible governmental
purpose, it is not a rubber stamp for state action. But apart from determining a statute’s
legislative purpose (and thus whether that purpose is permissible), an inspection for
underinclusiveness has no place in rational basis review. Otherwise, our doctrinal categories
provide no guarantee of the separation of powers, and a court may apply a more stringent
standard of review simply because it disagrees with the policy of the statute under review.
See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 31 (1973) (finding that if
the degree of judicial scrutiny of legislation fluctuated depending solely on a court’s
preference for a statute’s purpose and effect, then the court would assume “a legislative role”
for which it lacks “both authority and competence”).

{96} The majority opinion’s inspection for underinclusiveness does not even justify its

problem which seems most acute to the legislative mind. The legislature may select one
phase of one field and apply a remedy there, neglecting the others. The prohibition of the
Equal Protection Clause goes no further than the invidious discrimination.” (internal
citations omitted)); Ry. Express Agency v. New York, 336 U.S. 106, 110 (1949) (“It is no
requirement of equal protection that all evils of the same genus be eradicated or none at
all.”); see also, e.g., Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 32, as corrected (Mar.
4, 2016) (“A mere overinclusiveness or underinclusiveness in statutory classification will
not necessarily show a failure to satisfy a rational-basis review.”); Lonaconing Trap Club,
Inc. v. Md. Dep’t of Env’t, 978 A.2d 702, 713 (Md. 2009) (“Underinclusiveness does not
create an equal protection violation under the rational basis test.”).

39
holding. Here, the majority opinion’s tailoring analysis simply does not result in a
conclusion that the Legislature, since 1917, has acted with animus toward farm and ranch
laborers. A statutory scheme that permits 29% of farms and ranches—most of which are
large firms, likely employing hundreds of farm and ranch laborers—to voluntarily provide
workers’ compensation coverage to their employees is not a statute that harbors an ulterior
motive to discriminate against farm and ranch workers. Neither the statutory scheme nor the
record indicates that for 99 years the Legislature has acted with an impermissible,
discriminatory animus against farmworkers. Rather, the Legislature has rationally acted to
contain costs for New Mexico’s economically precarious farms and ranches so that they may
continue to operate.

III. CONCLUSION

{97} The law of statutory interpretation and the law governing judicial review of
legislation safeguard the separation of powers. This Court may not contort these areas of
law to nullify validly-enacted legislation simply because we happen to believe that a statute
is unfair or that its unfairness outweighs any other consideration that bears on the
Legislature’s decision. While I understand the unfairness that may be perceived in the
treatment of laborers who work for farms and ranches electing exemption from the WCA,
I also understand the burden that may fall upon small New Mexico farms and ranches in
having to incur regulatory costs more easily borne by their large competitors in the
agricultural industry. The Legislature enacted a statutory scheme that encompasses both
employer and employee concerns and is eminently constitutional. I respectfully dissent.

____________________________________
JUDITH K. NAKAMURA, Justice

40