specially concurring.
I agree with the majority in result only— that we hold the attorneys’ fee cap in NMSA 1978, Section 52-l-54(G) (Repl.Pamp.1991) (Effective until January 1, 1991) unconstitutional and reverse. I disagree with the majority, however, on how we reach this result. I believe that intermediate scrutiny, or “middle-tier” review, should be applied to evaluate the constitutionality of the attorneys’ fee cap. Under an intermediate scrutiny analysis, the cap is facially unconstitutional.
A Level of Scrutiny
Initially, I am not convinced of the vitality in New Mexico of the “heightened-rational basis” test (the fourth-tier review analysis) applied by the majority in this case. Although this Court adopted such an analysis in Alvarez v. Chavez, 118 N.M. 732, 886 P.2d 461 (Ct.App.1994), I believe that decision may have misinterpreted various United States Supreme Court cases as implicitly recognizing such a level of review. Specifically, Alvarez cited City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), and other federal cases, for the proposition that the United States Supreme Court used a “heightened-rational basis” test in some cases. The United States Supreme Court, however, later expressly denied that it had either created or utilized a new, fourth-tier level of review, stating that it did not “purport to apply a different standard of rational-basis review.” Heller v. Doe by Doe, — U.S. -, -, 113 S.Ct. 2637, 2643, 125 L.Ed.2d 257 (1993).
More importantly, approximately one month after this Court decided Alvarez, our Supreme Court issued its opinion in Marrujo v. New Mexico State Highway Transportation Department, 118 N.M. 753, 757, 887 P.2d 747, 751 (1994), which stated that “the Court will apply one of three standards of review: strict scrutiny; intermediate scrutiny (also known as substantial, heightened, or high review); and minimal scrutiny (also known as the rational basis test).” (Emphasis added.) The Court made no mention of a “heightened-rational basis” test or of four levels of review. To the contrary, the Court expressly recognized only three levels of review. Thus, in light of these statements by our own Supreme Court, I am unsure of the viability in our state of the fourth-tier review announced in Alvarez. Nevertheless, irrespective of the viability of the “heightened-rational basis” test in New Mexico, I do not believe that any “rational basis type” analysis is appropriate in this ease. Rather, the proper test should be intermediate scrutiny.
I have so concluded based on our Supreme Court’s decisions in Trujillo v. City of Albuquerque, 110 N.M. 621, 798 P.2d 571 (1990), and Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 763 P.2d 1153 (1988). Equal protection challenges to legislative classifications that infringe on “substantial and important individual interest[s]” or that impose burdens on a class of individuals sufficiently “ ‘sensitive’ ... to the injustice [being] wrought,” must be analyzed under intermediate scrutiny. Intermediate scrutiny is “aimed at legislative classifications infringing important but not fundamental rights, and involving sensitive but not suspect classes.” Richardson, 107 N.M. at 693, 763 P.2d at 1158. As our Supreme Court recognized in Richardson, the right of access to the courts is an implicit fundamental right. Id. at 692, 763 P.2d at 1157. Additionally, the Supreme Court indicated that one aspect of the right of access to the courts or of the right to petition for redress of grievances is the right to recover monetary damages. See Trujillo, 110 N.M. at 624, 798 P.2d at 574. Similarly, I believe that a worker’s right to retain and compensate counsel is another aspect of the fundamental right of access to the courts. Applying our Supreme Court’s holdings in Richardson and Trujillo, I would hold that Worker’s right to retain and compensate the counsel of her choosing is one aspect of the right of access to the courts, and as such, it is an important and substantial right that is entitled to intermediate-level review.
My conclusion that intermediate scrutiny is the appropriate level of review is supported by our Supreme Court’s recent decision in Coleman v. United Engineers & Constructors, Inc., 118 N.M. 47, 878 P.2d 996 (1994). There, the Court explained that Richardson and Trujillo were cases “involving ‘a limitation on the potential amount of recovery, rather than ... purely procedural matters impinging on the right of access to the courts.’ ” Coleman, 118 N.M. at 50, 878 P.2d at 999 (citations omitted). Under Coleman, cases involving the potential amount of recovery should be analyzed under the intermediate scrutiny test, while cases involving procedural limitations, such as a statute of repose, should be analyzed under the rational basis test. Because this case concerns a limitation on the recovery, rather than a procedural limitation, Coleman dictates that we apply the intermediate scrutiny test.
In its amicus brief, the Workers’ Compensation Administration (Administration) recognized that workers have a substantial and important right to have counsel represent them in workers’ compensation proceedings. Because Worker has been represented by counsel to the present, however, the Administration suggests that the cap has not infringed on her right to have counsel represent her. However, Worker has demonstrated that her workers’ compensation claim contemplates additional proceedings; in fact, her claim has already resulted in some proceedings following the Compensation Order at issue in this appeal. Because she has already exceeded the attorneys’ fee cap provision of Section 52-l-54(G), the cap is impacting on her access to the courts even though she has already had some access to the courts. Therefore, I would conclude that the effect that the cap has in limiting access to the courts justifies intermediate scrutiny in the same way that the damages cap in Trujillo and Richardson received intermediate scrutiny as related “access to the courts” rights of ample importance and substantial interest. See Trujillo, 110 N.M. at 624-26, 798 P.2d at 574-76; Richardson, 107 N.M. at 698, 763 P.2d at 1163.
B. Application of Intermediate Scrutiny
Application of intermediate scrutiny requires this Court to determine if the classification at issue is “substantially related to an important state interest.” Richardson, 107 N.M. at 695, 763 P.2d at 1160. Therefore, when applying intermediate scrutiny, this Court must examine (1) the governmental interests served by the Section 52-l-54(G) attorneys’ fee cap, and (2) whether the classifications under the statute bear a substantial relationship to any such important interests.
Despite the amicus New Mexico Trial Lawyers’ Association’s (NMTLA) argument to the contrary, I believe that the state interests that may be promoted by the attorneys’ fee cap, as identified by the Administration, are “important” state interests under an intermediate scrutiny analysis. Specifically, I find that the legislature’s desire to limit the amount of litigation in workers’ compensation cases and its desire to enable insurance companies to predict the payments they must make for a worker’s attorney’s fees are important state interests in light of the widely perceived “workers’ compensation crisis” in this state and nationally. Even though I. believe that the attorneys’ fee cap is aimed at furthering important state ... interests, that “does not necessarily imply that the classification is ‘substantially related’ to interest)» so identified.” Trujillo, 110 N.M. at 628, 798 P.2d at 578. Thus, the real question in this appeal narrows down to whether the attorneys’ fee cap is substantially related to achieving the important state interests noted-above.
Intermediate scrutiny requires this Court to assess “ ‘the importance of the state interesas] by balancing it against the burdens imposed on the individual and on society.’ ” Id. at 629, 798 P.2d at 579 (quoting Laurence H. Tribe, American Constitutional Law § 16-32, at 1602 (2d ed. 1988)). “An indirect means by which courts may assess this balance is to determine whether alternatives', exist that would not burden protected interests as heavily as the classification scheme chosen.” Id. Indeed, our Supreme Court-has recognized that “perhaps the most objective method by which a court may assess the balance struck by the legislature consists in determining the extent to which the government’s goals might be advanced by means that burden protected interests less than the means chosen.” Id. at 630, 798 P.2d at 580.
When a less restrictive means analysis is applied to this case, it becomes apparent that the attorneys’ fee cap is not substantially related to the important state interests that it was designed to address. In essence, the attorneys’ fee cap attempts to achieve its goals by limiting only the amount of attorneys’ fees that Worker may pay her attorney. In effect, the cap prohibits injured workers from paying the general market rate for legal services, while permitting defendant employers and insurance companies to pay whatever is necessary to obtain high quality representation. What this does is to place a worker at a competitive disadvantage, and the legal contest becomes a lopsided mismatch with injured workers on the losing end. As the workers’ compensation judge found below, one of the largest impacts of the attorneys’ fee cap is that it discourages attorneys from practicing in the workers’ compensation field. See Texas Workers’ Compensation Comm’n v. Garcia, 862 S.W.2d 61, 100 (Tex.Ct.App.1993) (similar attorneys’ fee cap statute found unconstitutional because the workers’ compensation act effectively created a system that required legal representation, but then effectively denied such representation to workers through an attorneys’ fee cap).
There is no justification for a classification that seeks to achieve the state’s interests by burdening the legal fees paid on behalf of workers, while immunizing the legal fees paid to employers from any such burden. In my view, for a cap to be substantially related to the goals of reducing litigation and predicting attorneys’ fee payments by insurers, the legislature should have imposed the cap on both workers and employers as it did in the 1991 Workers’ Compensation Act. Since the cap only seeks to achieve its goals by burdening the vulnerable class of workers, while immunizing the more powerful class of employers from the effects of the cap, the cap fails to reflect “a reasoned judgment consistent with the ideal of equal protection” and should be ruled unconstitutional. See Richardson, 107 N.M. at 697, 763 P.2d at 1162. Therefore, I would hold that Section 52-l-54(G) is unconstitutional on its face because it fails to serve “state interest[s] of sufficient weight” to counterbalance the serious encroachments on “principles of equal protection and equal access to the courts.” Trujillo, 110 N.M. at 627, 798 P.2d at 577.
Additionally, I do not believe there is any “legislative quid pro quo” with the attorneys’ fee cap decision that would tip the balance in favor of finding the cap constitutional. Although it is true that workers derive some benefit from a no-fault system of benefits and that the legislature may believe it is appropriate to offset that benefit with a cap on attorneys’ fee awards, employers also benefit from the no-fault system by not having to pay larger negligence awards that would probably result without a workers’ compensation system that focuses on subsistence level benefits rather than on making a person whole. Since employers also receive benefits from the no-fault system, but do not have an attorneys’ fee cap, I do not believe that there is “legislative quid pro quo” that would tip the balance in favor of the cap.
For these reasons, I specially concur.