STATE of Wyoming ex rel. the WYOMING ASSOCIATION OF CONSULTING ENGINEERS AND LAND SURVEYORS, a Wyoming corporation; the Wyoming Chapter of the American Institute of Architects, a Wyoming association; the Wyoming Health Care Association, a Wyoming corporation; the Wyoming Hospital Association, a Wyoming corporation; the Wyoming Medical Society, a Wyoming corporation; John D. Bailey, M.D., individually; and the Wyoming Society of Certified Public Accountants, a Wyoming corporation, Petitioners, v. Michael J. SULLIVAN, Governor of the State of Wyoming, Respondent.
No. 90-28
Supreme Court of Wyoming.
Oct. 9, 1990.
798 P.2d 827
A grant of summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law.
The rights of the easement holder in another‘s land are determined by the purpose and character of the easement. Bard Ranch Co. v. Weber, 557 P.2d 722, 731 (Wyo.1976). The manner in which the easement is used does not become frozen at the time of grant. Id. An easement for a road or a highway does not limit its use to the movement of vehicles. Uses related to traffic movement are within the scope of the easement. The grant of a public road easement embraces every reasonable method of travel over, under and along the right-of-way. Herold v. Hughes, 141 W.Va. 182, 90 S.E.2d 451, 458 (1955). Thus, the running of power and telephone lines above the ground and pipelines underneath do not increase the burden on the servient estate and are permissible uses. E.g., Bentel v. County of Bannock, 104 Idaho 130, 656 P.2d 1383 (1983); Fisher v. Golden Valley Elec. Ass‘n, Inc., 658 P.2d 127 (Alaska 1983). See
The operation of a public mass transit system is also within the realm of permissible uses of a road easement. Indeed, like pipelines and transmission lines, the bus line provides an advancement in the more efficient use of transportation resources. Paramount to this use of the easement, as well as all others, is ensuring public safety. Ankrim v. South Carolina State Highway Dept., 251 S.C. 42, 159 S.E.2d 911, 914 (1968). It is incidental to this use that the bus have a safe place to load and unload passengers. Without that right, not only would the safety of the public be jeopardized, but the right of the public to use the easement would be unduly restricted. See Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964). The construction and operation of a bus turnout on the right-of-way is a legitimate use of the road easement held by the State.
As further proceedings in this matter would serve no useful purpose, on remand we direct entry of judgment in favor of the State. Oedekoven v. Oedekoven, 538 P.2d 1292, 1294 (Wyo.1975).
Reversed.
Joseph B. Meyer, Atty. Gen., and Sylvia Lee Hackl, Sr. Asst. Atty. Gen., for respondent.
George Santini of Graves, Santini & Villemez, P.C., Michael Bruce Rosenthal of Hathaway, Speight, Kunz, Trautwein & Barrett, and Robert W. Tiedeken of Wolf & Tiedeken, Cheyenne, for amicus curiae Wyoming Trial Lawyers Ass‘n.
Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.
MACY, Justice.
Petitioners seek the issuance of a writ of mandamus compelling Respondent Michael J. Sullivan, Governor of the State of Wyoming, to appoint a director to execute and implement the Wyoming Professional Review Panel Act.
We hold that the Wyoming Professional Review Panel Act is unconstitutional and deny Petitioners’ Petition for Writ of Mandamus.
Petitioners present the following dispositive issues in a memorandum in support of their petition:
I. Whether the Petitioners have standing to seek issuance of a Writ of Mandamus from this Court to compel the Respondent to execute and implement the Wyoming Professional Review Panel Act?
II. Whether the Wyoming Professional Review Panel Act is a violation of either the Constitution of the United States or of the Constitution of the State of Wyoming?
In 1988, this Court declared that the Wyoming Medical Review Panel Act,
“[T]here must be some difference which furnishes a reasonable basis for different legislation as to different classes, and the differences must not be arbitrary and without just relation to the subject of the legislation.”
Hoem, 756 P.2d at 782 (quoting Mountain Fuel Supply Company, 578 P.2d at 1354). We first examined the state interest intended to be furthered by the Wyoming Medical Review Panel Act and declared:
[T]he legislature has a legitimate interest in protecting the health of the citizens of Wyoming as well as the economic and social stability of the state.
Hoem, 756 P.2d at 783. Second, we examined the issue of whether the legislation was a “reasonable and effective means” of effectuating the legitimate state interest. Id. We emphasized the principle that “‘the continued availability and vitality of causes of action [against health care providers] serve an important public policy — the preservation of quality health care for the citizens of this state,‘” id. (quoting Greenwood v. Wierdsma, 741 P.2d 1079, 1088 (Wyo.1987)), and held that the Wyoming Medical Review Panel Act was not rationally related to the state‘s interest in protecting public health or economic and social stability.
The Wyoming Legislature subsequently enacted legislation which was designed to establish a pretrial screening procedure for a broader scope of malpractice claims. 1989 Wyo.Sess.Laws ch. 262. Section 1 of that chapter provided for a screening procedure which could be established by the Wyoming Supreme Court.
The Wyoming Professional Review Panel Act mandates that the “panel shall have a director who shall be appointed by and serve at the pleasure of the governor.”
We must begin by addressing Governor Sullivan‘s contention that Petitioners lack standing to seek the issuance of a writ of mandamus. In Washakie County School District Number One v. Herschler, 606 P.2d 310, 317 (Wyo.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980), we stated:
Standing is a concept used to determine whether a party is sufficiently affected to insure that a justiciable controversy is presented to the court. It is a necessary and useful tool to be used by courts in ferreting out those cases which ask the courts to render advisory opinions or decide an artificial or academic controversy without there being a palpable injury to be remedied. However, it is not a rigid or dogmatic rule but one that must be applied with some view to realities as well as practicalities. Standing should not be construed narrowly or restrictively.
(Citation omitted.) We have also recognized an exception to the standing requirement when we are faced with a matter of great public interest or importance. Brimmer v. Thomson, 521 P.2d 574 (Wyo.1974).2
The review panel created by the Wyoming Professional Review Panel Act is almost identical to the review panel created in the Wyoming Medical Review Panel Act. The most significant differences are: (1) The Wyoming Professional Review Panel Act provides for a director appointed by the governor while the director of the medical review panel was the attorney general or his designee; and (2) the Wyoming Professional Review Panel Act applies to “professionals” and not to just health care providers as provided by the Wyoming Medical Review Panel Act. The term “professional” is defined as “a person licensed under
(i) Reduce the costs of professional malpractice claims to both plaintiffs and defendants by a less formal professional review of claims before litigation is pursued in the courts; and
(ii) Improve the ability of the state to regulate professions and ensure professional competence.
Similar to the Wyoming Medical Review Panel Act, the Wyoming Professional Review Panel Act provides that “[n]o complaint alleging malpractice shall be filed in any court against a professional before a claim is made to the panel and its decision is rendered.”
(i) Substantial evidence that the acts complained of occurred and that they constitute malpractice; and
(ii) A reasonable probability that the claimant was injured as a result of the acts complained of.
The Wyoming Professional Review Panel Act violates the equal protection guarantees of the Wyoming Constitution in the same manner as the previously enacted Wyoming Medical Review Panel Act. Hoem v. State, 756 P.2d 780 (Wyo.1988). The legislature‘s expansion of the class of professionals to which the Wyoming Professional Review Panel Act applies does not cure the constitutional defect explained in Hoem. We decline to reverse Hoem. We hold that the Wyoming Professional Review Panel Act is unconstitutional and deny Petitioners’ Petition for Writ of Mandamus.
URBIGKIT, C.J., filed a specially concurring opinion.
THOMAS, J., filed a specially concurring opinion, in which URBIGKIT, C.J., joined.
GOLDEN, J., filed a specially concurring opinion.
CARDINE, J., filed a dissenting opinion.
That concurrence follows the principle that the issuance of a writ of mandamus is appropriate “to command the performance of a ministerial duty which is plainly defined and required by law.” Williams v. Stafford, 589 P.2d 322, 324 (Wyo.1979).
I concur with the majority and join in the special concurrence of Justice Thomas. I write further to reflect that in spotlighted certainty for this bicentennial year, due process and equal protection, especially under the Wyoming Constitution, should not be unattained and the ephemeral rights not ever to be available to the average citizen. When faced with the inquiry “why not justice?“, I become dissatisfied by assumption that the legislature can amend those rights out of the Constitution for this or another special interest proposition.
Current history clearly reveals that reduction of rights available to the injured involves losses monumentally higher than benefits to the wrongdoer in reduced insurance premiums. Justice may be priced, but surely not in constitutional terms of loss of due process and equal protection.
I would even be more incensed by application of the principal of insulation from responsibility for fault-caused injury to be provided by the newest enactment, 1989 Wyo.Sess.Laws ch. 262,
Strangely we omit educators, ministers, insurance agents and librarians by the accident of placement within the Wyoming statutes. 1989 Wyo.Sess.Laws ch. 262 is immeasurably worse than its predecessor,
A justice system with the availability of effective jury inquiry is incomprehensibly preferable to idiomatic obstructions denying expeditious determination of fault and responsibility.
THOMAS, Justice, concurring specially, with whom URBIGKIT, Chief Justice, joins.
I concur in the disposition of this case according to the majority opinion. I am troubled that the Legislature of the State of Wyoming apparently read the opinion of the court in Hoem v. State, 756 P.2d 780 (Wyo.1988), as addressing the narrowness of the class of defendants in the context of equal protection of the law. Read carefully, I am satisfied that, in the Hoem case, this court made it clear that the equal protection violation was found in the disparity in treatment of injured persons, some of whom were required to submit their cases to the medical review panel while others did not encounter that impediment to pursuing their claims. Obviously, this new legislation does not even address that same deficiency.
I also adhere to the additional rationale to support a conclusion of unconstitutionality set forth in the concurring opinion in Hoem that I authored and in which Justice Urbigkit joined.
GOLDEN, Justice, specially concurring.
I concur since Hoem appears controlling. Were that not so, I would prefer a more searching and rigorous examination of the equal protection issue, as well as the other constitutional issues raised. In the context of constitutional analysis, I find it difficult to argue with some of the principles set out by the Hoem dissenters.
CARDINE, Justice, dissenting.
I fail to see how the Wyoming Professional Review Panel Act (PRPA) is constitutionally defective “in the same manner as the previously enacted Wyoming Medical Review Panel Act.” Majority opin. at 4. The majority‘s summary dismissal of this issue does not explain that statement. I found no problem with the constitutionality of the Medical Review Panel Act and would have upheld it against the challenge. Hoem v. State, 756 P.2d 780, 787-94 (Wyo.1988) (Cardine, J., dissenting, with whom Brown, C.J., joined). I advocate reversing Hoem for the reasons explained in my dissent in that case. Yet even if this court allows Hoem to remain good law, Hoem should not control the outcome of this action. I dissent.
The majority takes the approach that this case is Hoem revisited.1 In doing this, it ignores the proper posture in which this court must review the legislation in question in this case. Statutes are presumed to be constitutional, and the burden is on the attacker of the statute to demonstrate its unconstitutionality beyond a reasonable doubt. O‘Brien v. State, 711 P.2d 1144, 1147 (Wyo.1986).
Hoem held that the Medical Review Panel Act was not rationally related to a legitimate state interest. The Act‘s stated purpose was:
“to prevent where possible the filing in court of actions against health care providers and their employees for professional liability in situations where the facts do not permit at least a reasonable inference of malpractice and to make possible the fair and equitable disposition of such claims against health care providers as are, or reasonably may be, well founded.”
W.S. 9-2-1502 (Cum.Supp.1986) (declared unconstitutional in Hoem v. State, 756 P.2d 780 (Wyo.1988)).
The Medical Review Panel Act‘s purpose contrasts sharply with the stated purpose of the PRPA.
“(a) The purpose of this act is to:
“(i) Reduce the costs of professional malpractice claims to both plaintiffs and defendants by a less formal professional review of claims before litigation is pursued in the courts; and
“(ii) Improve the ability of the state to regulate professions and ensure professional competence.”
The Professional Review Panel Act‘s first purpose is to reduce the cost involved in resolving professional malpractice claims regardless of merit of the claim. The Professional Review Panel Act has a second purpose: to improve the ability of the State to regulate professions and ensure professional competence.
The majority, through its reliance on Hoem, implicitly applies the rational basis test to deny the constitutionality of the Professional Review Panel Act. It apparently finds no fundamental interest involved in the PRPA. Although a short delay in access to the courts is involved in the act, access is not denied. The fact that under
In his specially concurring opinion in Hoem, Justice Thomas advocated the adoption of a “heightened scrutiny” test requiring “the statutory classification to substantially further a legitimate legislative purpose.” 756 P.2d at 785 (Thomas, Justice, concurring, with whom Urbigkit, Justice, joined). Justice Thomas found this test applicable to the Medical Review Panel Act because it did “not involve any political question of importance to the state but essentially touch[ed] upon private interests.” Id. This Act does not contain the same infirmity but presents a compelling state interest. Additionally, the majority has not embraced the heightened scrutiny test. Justice Thomas’ special concurrence also concluded that the class of claimants was too small — the result being unconstitutional special legislation. Id. at 786. That claimed infirmity likewise does not exist in the PRPA, for the legislature, by expanding that act to include essentially all professionals, also expanded by great numbers the class of claimants affected.
I expressed concern in my Hoem dissent that the Medical Review Panel Act was declared unconstitutional because the majority of the court simply did not like the statute. 756 P.2d at 790. I question again whether the same motive prompted the majority to unconstitutionality in this case. We should not concern ourselves with the wisdom of enacting this statute, only its constitutionality. 756 P.2d at 791; Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 2780, 77 L.Ed.2d 317 (1983). With the holding in Hoem and its unjustified application to the PRPA, I fear the constitutionality of any legislation allowing for administrative pre-hearing processing of all professional liability claims is presently an impossibility. Absent reversing Hoem or sustaining the constitutionality of this Act, this type of legislation will never satisfy this court as constitutional. Thus, a constitutional amendment is now required for the legislature to even attempt to deal with this perceived problem. If this court had reviewed this Act under the standards we had adopted, such a drastic measure would be unnecessary.