White v. State

WHITE, Appellant Eugene M.

(Plaintiff), Wyoming Wyoming; and

STATE of Department, Highway (Defendants). Appellees 88-291.

No. Wyoming. Court

Supreme

Dec. Mackey and

Terry W. Tiedeken Robert P.C., Terry Mackey, Chey- (argued), W. enne, appellant. Santini, amicus cu-

George Cheyenne, for Lawyers Trial Ass’n. riae Vines, Gusea Kenneth G. Vines of & White, Cheyenne, appellees. CARDINE, C.J., equal protection guar- and process the due and Before Wyoming anties of the Constitution. URBIGKIT, THOMAS, MACY GOLDEN, JJ. provides: W.S. 1-39-120

“(a) liability imposed by 1-39- The W.S. through 1-39-112 does not include CARDINE, Chief Justice. by: damages for caused White, brought an ac- Eugene Appellant, “(i) plan design A defect in the or damages personal injury tion to recover culvert, highway, roadway, bridge, Highway Depart- Wyoming area; street, alley, parking or sidewalk granted High- court The district ment. “(ii) construct or recon- The failure to summary judgment mo- way Department’s culvert, highway, any bridge, struct tion, appellant’s cause of ac- holding that street, park- roadway, alley, sidewalk negligent maintenance of tion for area; ing 1-39-120. highway barred W.S. maintenance, “(iii) including The mainte- challenges the constitution- Appellant now compensate condi- nance to for weather ality of that statute. tions, culvert, highway, any bridge, street, roadway, park- We affirm. alley, sidewalk or ing area.” resurfaced Highway Department Appellant has not advanced a federal County, Wyoming Highway 212 in Crook challenge statutory constitutional to this on the road. painted a fresh centerline grant immunity, presumably due to the However, repaint the neglected white challenges by limited review afforded such resurfacing operations edge line which its Supreme the decision of the United States 7, 1986, Prior to October had obliterated. California, Court Martinez v. U.S. returned to Highway Department crews 62 L.Ed.2d 481 S.Ct. Highway sprayed 212 and a tar-like sealant Appellant Wyoming contends Con- the road. On the along the shoulder of places greater stitution constraints on our 7,1986, approximate- evening of October legislature’s power to immunize state and his tractor- ly p.m., appellant 10:00 steered and, government from tort actions local the southbound trailer to the outside of therefore, upon state constitutional relies passing room for an lane to create more prohibition. and, approaching allegedly vehicle mistak- regard We have observed in this that the ing pavement, the dark colored sealant process equal protection guaran due jackknifed truck. ran off the road and his Rights Bill ties of the federal serve as Highway Appellant asserted that the De- protection minimum standard for the partment negligent had in its mainte- been Wyoming individual liberties and that the Highway operation in its nance of may legitimately expand Constitution those of state-owned motor vehicles. Airport safeguards. Cheyenne Board v. Highway Department moved to dis- (Wyo.1985); Rogers, 707 P.2d miss, arguing alleged facts Russell, that the would (Wyo. Nehring v. support negligent opera- 1978). have, fact, recognized an action We such vehicle, protection that an in a tion of a motor action increased number of cases. example, particularized For the more negligent highway of a maintenance specific language of our constitution has was barred W.S. 1-39-120. After con- recognition led to the of a fundamental summary verting that motion to one for wholly interest education which is absent judgment, hearing appellant’s and after jurisprudence. in federal constitutional challenge to 1-39-120 of constitutional § County District No. Washakie School Act, Governmental Claims Herschler, 332-33 One Highway granted the district court De- (Wyo.1980). partment’s Appellant motion. now reas- serts his contention that the immu- spoken State’s This court has also of certain nity contrary specific rights, under 1-39-120 and detailed which would suit § with those must penumbra fall fed- State’s interference within otherwise they accomplishment if equal protection guaranties, necessary of a eral indepen- compelling constitutional stature had some interest. equal protection analy- of traditional dent Appellant Wyo- not contend does that the Builders, Inc., Phillips v. ABC sis. See ming provides him Constitution with (statutory (Wyo.1980) 611 P.2d unique protection magnitude. of this He from suit for and archi- builders does, however, by specifically contend that injured persons the to tects closes courts rights, enumerating certain which would class, in violation of the

by protected safeguarded by gen- otherwise be its more protection right by equal granted specific process equal protection provi- eral due Wyoming 8 of the Constitu- Article § sions, pro- that provides document him with vein, tion). we have Much the same beyond tection somehow afforded special the more significance to accorded equal process protection normal due process particularized wording our due analysis. agree. We cannot In order to protection provisions and have equal subject something to more W.S. 1-39-120 rigorous employed a more stan- implicitly stringent than traditional “rational basis” alleged scrutiny for statutes dard scrutiny, have to we would find that rights. Nehring, those contravene either such Constitution forbids (constitutional guaranty 77-80 P.2d at appellant grants an enactment or such a requires guest operation laws” “uniform significant pen- right as to demand a more substantially legis- related to statute to etrating scrutiny. level of As intermediate despite purpose, announced consti- lature’s following we will in our show discussion tutionality federal under deferential stan- authority Article to immunize § equal protection). dard from suit is for- entities Effectively conceding the constitutionali- is, contrary, To the con- bidden. process ty 1-39-120 under federal due of § stitution, granted legisla- expressly to the standards, protection appellant equal to adopt ture. Even if we were a three-ti- find have us some substantive state would scrutiny, an intermediate ered standard of right protection of his sue constitutional inappropriate scrutiny level of would be Furthermore, Department. Highway where, case, as in constitutional Nehring, in reliance on he would have us granted appellant right was conditioned 1-39-120, allegedly review contraven- § legislative upon the exercise of reasonable protections, by such tion of constitutional authority. pro- None of the constitutional traditional, stringent than more standard appellant such visions warrant cited We will do scrutiny. “rational basis” nei- scrutiny. ther. largely adopted This court The constitutional substantive scrutiny employed by the federal two-tiered equal protection process and under the due analyzing process courts in substantive due general guaranty operates as a that no law is, challenges. equal protection That property entitlement to either individual’s in where a affects a fundamental statute liberty can be taken the State unless inherently suspect clas terest creates an rationally is at action least related such sification, strictly the court must scrutinize people. of all its concern for- welfare necessary if it that statute to determine is however, entitlements, sig- so Certain compelling to achieve a state interest. compelling require nificant that we a more However, only ordi if statute affects justification for State’s interference nary social interests in the economic and rights. case those That is the with an with area, welfare the court need determine privacy and as- individual’s interests in rationally legitimate related to that it family. with his It is sociation also objective. Troyer Department state respect right to be free to his case Services, Health and Social Division discriminatory classifications based Rehabilitation, race, color, 722 P.2d origin. or national Those Vocational Board, significant (Wyo.1986); Cheyenne Airport are so entitlements Hoem, goals. P.2d at serted 727; County School 707 P.2d at Washakie District, (Thomas, J., concurring, at 333. specially 784-87 J., Urbigkit, joins). with whom that no fundamental

Appellant concedes is at issue suspect classification interest or scrutiny reminiscent heightened Such Therefore, scrutiny inappro- strict here. analysis Nehring. of this court in and, to the two-ti- we to adhere priate were above, with a As noted that case dealt need analysis, W.S. 1-39-120 scrutiny ered guest We challenge Wyoming’s statute. legis- a reasonable relation only bear language of our consti- determined that preserving interest legitimate lature’s provision, requir- equal protection tution’s stability of and social the economic laws, ing operation” of demanded “uniform highly defer- a standard state. Such relation- that the statute bear a substantial constitutionality the statute. ential to the ship purpose. While Article its asserted exists is, basis That if conceivable 1, expressly 8 was never mentioned § although arguably, reasonably, will which decision, that it should be noted that enactment, that will assume support the we only constitutional issue the case was non-arbitrary acted in a legislature manner, guest hold the stat- denied citizens and will whether statute and rational State, Hoem v. ute to constitutional. powers uniform access to the remedial (Wyo.1988); Chey- 782-83 756 P.2d Nehring, the courts. 582 P.2d at 78-79. 727; Board, P.2d at Airport enne bottom, Nehring Thus at both and Justice Emerson, Supply Co. Mountain Fuel Thomas’ concurrence in Hoem manifest the (Wyo.1978). In order provides that our constitution belief probable result of such defer- to avoid the heightened equal protection guaranty of ence, urges adopt that we appellant uniform access to relief. We need scrutiny as advanced intermediate level decide, however, that whether belief concurring specially in Justice Thomas’ support adoption concomitant However, appellant’s re- opinion in Hoem. scrutiny of an intermediate level of misguided. opinion liance on that by majority presently shared of this present clearly case is distin- court. ARTICLE § prior guishable from both decisions. At issue in Hoem was the constitutionali- ty Wyoming Panel Medical Review requirement We have held that the Act, required screening pro- which 1, 34, general oper- Article that all laws § spective malpractice medical suits. The uniformly, provides equal protection ate screening plaintiff asserted' that such vio- equivalent provided by Four- equal protection by right lated her teenth Amendment to the Constitution of courts, contrary impeding her access to the County the United States. Washakie Wyoming to Article 8 of the Constitu- § District, 606 P.2d at 332. School We have similarity tion. Justice Thomas noted the prohibition against spe- that the also noted provision between this section and laws, 3, 27, in Article cial contained § in Farley Kansas’ constitution discussed specific equal protection guaranty more 1058, 74 Engelken, 241 Kan. 740 P.2d enlarges protections of Article agreed A.L.R.4th 1 He with the Phillips, Appellant at 826. § analysis statutory con- of that court effect, urges, adopt that we a similar specific equal protection straints on such a is, analysis regarding Article 8. That § right justification than greater demanded that, general guaranty he asserts while the deferential, Thus, scrutiny. he “rational” equal protection legis- demands that the court, suggested that in such an in- only arguably lature establish reasonable stance, longer presume legisla- that the classifications, protec- specific these more rationally ture acted that it conduct a require greater justification tions some be- penetrating more examination and deter- legislature may special fore enact a law mine whether the contested classification actually substantially impede people’s furthered the as- or access to the courts. However, neglects limited nature of OTHER CONSTITUTIONAL he PROVISIONS by Article right granted § provides:

That section provisions of the Consti- Other appellant similarly tution on which relies open every per- “All courts shall be action to the ex- constrain person, reputa- for an done son None of tent that is unreasonable. those justice shall have admin- property tion or provisions to an warrants resort interme- sale, delay. denial or istered without scrutiny diate level of to determine the brought against the state may be Suits legitimacy provi- of W.S. 1-39-120. Those and in such courts such manner state, pertinent part: sions may by law direct.” legislature added) Article 2: (emphasis § life, “In inherent liberty their long held that the second sen We have pursuit happiness, and the all mem- grants

tence of that section equal.” human bers of the race are to which power to determine the extent subject are the State and its subdivisions 3: Section 162-63; Troyer, suit. 722 P.2d at Wor equality enjoyment in the of natu- “Since 796, State, 598 P.2d 800-04 thington v. rights ral and civil made sure (Wyo.1979); Hjorth Royalty Co. v. Trust through political equality, the laws of Wyoming, Wyo. University ees affecting political rights state of of 309, 222 P. 9 For us to hold other privileges and of its citizens shall be holding wise would be tantamount race, color, sex, without distinction of or constitution unconstitutional. is note any or condition whatsoev- circumstance worthy that the framers of the incompetency, er other than individual or grant Constitution did not include the duly by a unworthiness ascertained court power generally in Article 3 which sets competent jurisdiction.” powers, powers, out the limitations on and Section 6: Rather, they legislature. duties of the life, person deprived “No lib- shall power chose to establish that in the Decla erty property process due without Rights power ration of of Article 1. That law.” as a direct limitation on a was established Section 7: right people, in the as declared first “Absolute, arbitrary power over the 1, sentence of Article 8.§ lives, liberty property of freemen republic, exists nowhere not even

Nehring and Hoem dealt with an majority.” largest right have individual’s access to respect sought to relief from courts Section 34: however, person. Appellant, another seeks general “All laws of a nature shall have bring against access suit such the State operation.” a uniform 1, gives Wyoming. clearly Article 8§ 3, Article 27: § to sue the no unconditional State. pass legislature “The shall not local or expansion specific Because the of substan special any following laws enu process equal protection argu tive due * * * cases, say: merated that is to ably granted Article 8 does not § * * * actions; granting limitation of civil respect exist with to suits any corporation, association individ State, legislative concerning decisions * * * any special privi ual- or exclusive abrogation retention or * * lege, immunity or franchise *. In all only subject to suit are general other cases where a law can be Article reasonableness standard of § special applicable made law shall be Thus, appellant rely cannot on the rationale enacted.” Nehring and the concurrence Hoem heightened scrutiny. level of Article 4: obtain § limiting proscribe “No law shall be enacted sions do not reasonable classifica- damages tions; they only require amount of to be recovered for a statute to any per- causing or death operate upon per- manner a similar all son.” Meyer sons in the same circumstances. Kendig, (Wyo.1982); P.2d personal held that the We have 1356; Supply, Mountain Fuel 578 P.2d at equal protec political rights secured Laramie, May City Wyo. Article provisions tion §§ (1942). Furthermore, P.2d 305-06 it is absolute, that those sections do not appellant’s obvious that reliance on these imposing rea preclude the provisions nothing more than a restate- such in the sonable restrictions on equal protection argument, ment of his public interest. Haskins v. State ex rel. argue he does not that the contested stat- 1173-74, Harrington, 516 prohibited special ute constitutes a law. (Wyo.1973). Similarly, we A.L.R.3d 1171 merely that, law, He argues general as a have held that restrictions on operate uniformly. Therefore, must our rights satisfy those our constitutional stan only concern provisions under these process dard of substantive due unless whether accomplished by classification they arbitrary. are unreasonable reasonably statute was related to a Board, Airport Cheyenne P.2d at 726- legitimate legislative goal. Id. Thus, a statute which would be deemed constitutional under “reason Finally, appellant asserts that W.S. 1-39- ableness” standard Fourteenth 120, by denying action, his cause of Amendment to the United States Constitu damages amounts to a limitation on in con- complies requirements tion also with the 10, Wyo- travention of Article 4 of the § 1, Laude, Article State v. § ming expressly rejected Constitution. We 1223, (Wyo.1982). general argument this in Meyer, 641 P.2d Additionally, speaking specifically at 1239. reach the same result We when ana Act, of the Governmental Claims we have lyzing according such a statute to the stan 10, held that “Art. 4 may prevent the § 1, 7, dard of Article for much of the § legislature imposing arbitrary limits substantive content of 6 is derived from § damages, on prevent but it does not limita- language the generally See § types tions on the actions which Wyo. v. Langley, 53 770- brought against Troyer, the State.” (1938)(the separate inclusion of both 6§ Thus, provision inappli- P.2d at 163. represented and 7 in our constitution § present cable to the case. understanding concept framers’ that the process only due consisted not of the his therefore, Appellant, has cited no torically accepted procedural element evi provision Constitution dent on the face of but also entailed § provides protections him with inde passage restraints on the of substantive pendent process of substantive due majority laws such that the could exercise equal protection analysis. Neither has he against its will an individual to the established that he is anything entitled to extent that such an exercise was reason scrutiny more than traditional rational arbitrary); able and not Weaver v. Public 1-39-120. § Commission, Wyo. Service 278 P. (1929) (Article 1, 547-48 2 and 7 §§ RATIONAL RELATION TO general police power and the nature of LEGISLATIVE PURPOSE provided in the content of Article § require legislative reasonable, actions to be Although appellant expends much operate to equality, in to be energy disputing appropriate standard welfare). public’s service of the statute, of review of this contested he as

Appellant’s reliance on prevail, event, Article 34 serts that he must § and Article upon is also unfounded. We even application of the deferential § provi- have held that these complementary scrutiny. “reasonableness” standard of governmental all subdivi largely his concluso- disagree. Against We left history Admittedly, sions. Collins much to be regard, the argument in this ry retrospect, it was fact a Act and histo- desired. In Claims the Governmental gov to the trust response stopgap mere based our that legislature’s of our ry crisis,” to ballyhooed “tort/insurance entities would continue insure much ernmental effort to serve clearly against liability reasonable and on our trust that the reveals particular plain- That public comprehensive interest. take would more served may occasionally be less well satisfactory tiffs measures to resolve efforts, be de- of these cannot as a result problem. that, However, deny can neither we nied. This court’s disenchantment with doing, legislature has also at- in so immunity, along governmental doctrine of insur- viability of an tempted ensure the abrogate pressures judicially with the compen- system funds tort that most ance doctrine, largely had been in check held that the attempted to ensure sation and legislature’s proper our to the deference liability jeop- not prospective would State’s Indeed, determining role in such issues. much needed ability provide its ardize Raper clearly noted the Jivelekas Justice

public services. legislature’s obligation fund tort both legislature’s actions in history many services demanded specific area legis- by our citizens and cautioned dialogue with the a continual is marked weigh lature be time its difficult given this court. Collins v. Me- decisions sys- economic choices and devise a uniform Hospital County, 521 Sheridan morial handling liability. tort Id. 433- tem that such (Wyo.1974),we held P.2d 1339 (Raper, J., concurring part and dis- that a waived the extent senting part). Unfortunately, circum- entity used funds to longer permit stances that would no arose liability. Although we insure itself complete such deference. speak directly general issue did say That not to that the criticisms immunity, application we noted In the Jivelekas went unheeded. disrepute into and had fallen wide laudable Forty-fourth Legislature enacted House upon ineq- specifically commented the and 186, which, like present Bill the Govern Wyoming’s ap- rather piecemeal of uities Act, provided for a mental Claims broad problem. the Id. 1340-43. At proach to at immunity yet of to tort suits limited waiver session, following legislative our hold- the balancing the policy and articulated a of by ing in Collins enacted into law 1975 was against victims responsibility State’s to tort 197, 1, accompanied Wyo.Sess.Laws, ch. § That many responsibilities. its fiscal other pur- requirement by both that the state act, gubernatori however, by was defeated liability for all law enforce- chase insurance Digest of House Journals al veto. 1977 by and a broad authorization ment officers act, 231-33. With the defeat of all purchase of insurance for for the immunity entities governmental retained Id.; providers. Wyo.Sess. care health extent, Collins, they except per Thus, Laws, legislature ch. the § against liability. had insured themselves to question immunity largely the left the of upon called to decide We were then Oroz governmental of enti- discretion individual County Car Board Commissioners ties, option providing for of waiver the of of (Wyo.1978) County, bon authorizing insurance purchase the State, (Wyo. P.2d Worthington v. selectively immunity re- waiving state 1979). cases, alleged In both a victim specific to covered quiring activities negligence squarely chal insurance. lenged immunity gov uninsured the of an problem, the how Such treatment of entity. ernmental ever, fell under the criticism of Justice Oroz, abrogated In we impassioned dicta in Rose’s Jivelekas actions, governments ground- to Worland, (Wyo. local tort City authority upon 1976), calling abrogation ing our to do so the deter- for a broad liability, provided peri- ance to cover its immunity of such entities that the mination history claim doctrine that we were odic review of the State’s a court created was amend or overrule. freely empowered coverage, required under however, we declined Worthington, manage- actuarial and risk State to conduct abrogate the similarly Wyo.Sess.Laws, ch. ment studies. 1979 that Article in that case State. We noted safeguard Additionally, as a §§ Wyoming Constitution “left of the claims, § the act from unwarranted areas and legislature to determine what inception sharply restricted the abil- it would consent under conditions what claims ity entities settle damages an individual suit for suffered investigation an and a determina- without might had recovery and under which the claimant entitled to relief. tion that wrongs for the by an individual 1-39-115 and its attendant histo- See W.S. P.2d at 803. Worthington, State.” act, immuni- ry. Thus the in its waiver of recent at- Noting legislature’s also ty, heavily on the maintenance of has relied orderly provide cure for tempts to sought insurance and has to control in the doc- unfairness inherent through the costs of that insurance both trine, appropriate to defer to found it we litigation prevention risks and the interfering and refrain those efforts claims. baseless prerogative. Id. with the however, management techniques, These 803-04. gradually inadequate became to the task of efforts, interim during the be- Those providing funding affordable insurance Worthington, culminated- tween Oroz potential By liabilities. State’s tort comprehensive of a Govern- passage Forty-eighth Legislative time the Session mental Act. The concerns Claims had im- convened been attempted to balance legislature pacted by the so-called “tort/insurance cri- expressed in W.S. through that act are best sis,” sweeping then nation. Governor 1-39-102, part: which states Herschler, in his address to both houses of recognizes the Wyoming legislature “The legislature, inability noted the of both inherently inequitable results unfair private and the sector to main- application in the strict which occur coverage against tain affordable insurance governmental immunity the doctrine of governor urged potential liability. tort cognizant Su- permanent mea- consider preme Court decision of Oroz v. Board might sures which make the extent of such 575 P.2d 1155 County Commissioners liability predictable specifically more and recognized that the It is further variety called for a of interim actions which political state and its subdivisions as problems by created the would address public are constitut- trustees of revenues Among Act. Governmental Claims such the state of ed to serve the inhabitants of suggestions were the elimination of liabili- Wyoming and furnish certain services ty related to the construction and mainte- and, through private parties not available highways gov- nance of and the creation of state, in the case of the state revenues ernmental self-insurance funds. 1986 Di- may only expended upon legislative gest legisla- of House 7-10. Journals appropriation. adopted by the This act is variety ture answered this call on legislature respective equi- the to balance fronts. injured by govern- persons ties between taxpayers the mental actions and the specifi- In addition to measures directed Wyoming state revenues are whose cally governmental liability, towards tort governmental utilized on be- entities by Forty-eighth Legislature the enacted a taxpayers.” half of those designed expe- number of “tort to reforms” and, litigation limiting purpose, dite either liabili- the service of this the act set liability ty exposure making predictable, it more governmental out the limits of and However, Among certain procedures. established claim it make risks more insurable. required purchase Wyo- also the to insur- the reforms enacted into the 1986 expressed the intent that following: the ch. Consistent with ming Laws are Session merely an interim the submit- fund function (providing sanctions this for pleadings); (providing purchase ch. 5 the of commercial tal of alternative to baseless insurance, legislature of actions on the basis provided for dismissal for the non-involvement, pro- repeal a defendant’s affidavit automatic the self-insurance an affidavit providing that such However, gram, June effective answer, permitting and filed lieu of unavailability of insurance the continued discovery purpose plaintiff limited for the program until required the extension of the affidavit); (repeal- rebutting that ch. Wyo.Sess.Laws, chs. June (clari- liability); ing joint and several ch. 19, 63. proof standard of fying the burden of Finally, pertinent and most malprac- care be established medical present case, legislature responded also cases); (limiting ch. 48 tice elimi- Governor Herschler’s address sponsored amateur rodeos nating governmental liability for defects in organizations); ch. non-profit schools and design, construction and maintenance screening mal- (requiring of medical Wyo.Sess. highways. of streets and suit); filing and ch. practice prior claims Laws, regard ch. 89. We note in this (eliminating liability for executive governor’s opinion in that address that governmental agencies decisions of such a reinstatement of would non-profit corporations). preclude legislature from later problem directed specifically More waiving specific claimants liability, Wyoming injuries allegedly were caused whose Laws, chs. 74 and established Session highways. negligent maintenance of program of self-insurance the State opinion played any that not certain this program in that avail- participation made part legislature’s in the final decision. It able to entities. local certainly not relevant issue raised legislature respect with intent of the this case. to our decision 1-41- program that is articulated W.S. observe, however, the con- do that We provides: address, governor’s when read tents of the recognizes that certain legislature “The conjunction with the contents policies liability insurance of the state specif- considering appellate record cancelled, Wyoming have been ic of tort law which the areas responsive have been received bids reform, ripe amply reveal considered develop a exists a need to there legislature's rein- the reasonableness brought claims under method to handle respect statement Act Governmental Claims reveals, The record highway maintenance. legis- arising under federal law. The period passage concerning the between the appropriate that the rem- lature declares Act and Claims the Governmental edy is an account for self-insur- to create session, following note- provide and to for a loss ance of the state worthy items: prevention program. intent of is the majority of claims filed 1. The the ac- legislature the that self-insurance (75%-90%) the related to de- the State actuarially operated count on an shall be maintenance of sign, construction and legislature de- sound The further basis. highway system. the State’s intent is availabili- clares that its that the insurance, to purchasing 2. In addition liability ty of insurance cov- commercial $750,000 legislature appropriated to the considering the erage explored be shall Attorney pay office to General’s the industry the insurance possibility that Act, the Claims one-third of claims under provide coverage in future that can litigation set cover which was aside to provid- expensive less than the costs of expenses. fees and ing pay- prevention program a loss and period, July During that and as of ing for claims out of the self-insurance 1988, Highway Department defended account.” lawsuits, monetary litigation the related claiming a total of costs of and eighty-six Seventy $100,333,158.22 damages. diverting of of the human resources of costs or settle- en- awards from otherwise beneficial those suits resulted $1,654,485.22. of Sixteen It is totalling ments also be calculated. not deavors must exposing pending, legislature suits still deter- were to unreasonable for $9,398,- liability of potential to a outweigh that costs the benefits mine these 203.67. mainte- liability highway for of continued High- period, the say it During that same nance. We cannot is unreasonable an additional Department legislature handled way to decide that most for $7,864,- a of thirty-five total claims as- requires efficient monies use of result in a lawsuit. 051.80 that did of sertion these circumstances. in a amount of total pending, Two were hold, therefore, passage We that the of $23,210.92. resulted in The other claims 1-39-120, providing W.S. $10,000. payment total a design, and mainte- suit construction claims that hundred three 5. Of the one highways, bears a rela- nance reasonable finalized, fifty-eight claimants had been legitimate legislative objectives tion nothing. received preserving funds conserving public expanse our state’s While sheer system compensating fair and a viable ac- system might to extent highway some injured persons actions. disproportionate amount of count infirmity in There is no constitutional that govern- this one area of relating claims to statute. activity, the fact that the State has mental Affirmed. many liability on so of those claims avoided When one suggests different conclusion. Justice, URBIGKIT, dissenting. liability still joint and several considers that people Wyoming under- should period that under during existed someday stand what this decision could State, though percent one this doctrine the give day them. If the a school comes when required pay a total negligent, might be young Wyoming bus loaded with students it not judgment, we think unreasonable snowplow operator is hit careless that, many to assume many injured of those children are killed or cases, merely had these the State become badly they so will medical atten- need pocket. deep convenient lives, their tion for the rest of the state highway are aware that a We all too may permitted deny any remedy damages costing far in accident cause injured.1 permit those I would refuse to injured their insur- excess what the injured parents or their students policies capable Under paying. ance locked out at the courthouse door. original provisions Governmental Lincoln, fighting more Abraham battles however, Act, an often faultless Claims secession, simply slavery and than said: Highway Department was hauled into duty “It is as much the of Government all of court held answerable for prompt justice against to render itself in claimed shows loss. While record as it is favor citizens to administer the the State avoid able instances, private same great the costs to the between individuals. number of investigation adjudication taxpayer vulnerability cannot be claims such department.” belong in their merely by tallied reference to the cases nature ] successfully by the defended State. The [2 1-39-105, Compare example, two-way 1. W.S. motor vehicle liabili- Consider for construction barricading l-39-120(a)(iii), repair ty, sites on the interstate. with W.S. exclusion for responsibility promotes is axiomatic that atten- highways, weather maintenance of and then in- safety. tion to 1-39-118(b), terject providing W.S. “covering any to limit insurance acts or risks.” Minge, Immunity Damage From Governmental safety today important Is it was before as Wyoming, VII Actions Land & Water L.Rev. responsibility damage fiscal was removed? (1972) Message (quoting 229 First Annual

1323 majority governmental This Worland, claims City (Wyo.1976); P.2d 419 of recently passed by statute the Davis v. Board County Com’rs Car of of Wyoming legislature does not violate the County, (1972), bon 495 P.2d 21 overruled Wyoming rights equal protec- citizen’s sub nom. Collins v. Hospital Memorial tion, process due or access to the courts. County, Sheridan 521 P.2d (Wyo. of For the reasons which follow and form the 1974); Incorporated Town Maffei of my dissent, basis of I the majority believe Kemmerer, Wyo. 33, 338 P.2d reh’g gravely mistaken. Wyo. 33, denied 80 (1959), 340 P.2d 759

overruled sub nom. Collins v. Memorial I. INTRODUCTION Hospital Sheridan County, 521 P.2d (Wyo.1974); Price v. State Highway majority speaks The of an “individual’s Commission, Wyo. 167 P.2d 309 property liberty entitlement” to or when (1946); and Evans v. Board County locating the assigned functions to our con- Com’rs El Paso County, 174 Colo. stitutional assurances to process due and (1971); 482 P.2d 968 Stovall, with State equal protection of the laws. That lan- (Wyo.1982); 648 P.2d 543 Oroz v. Board guage telegraphs alone the outcome before County Com’rs Carbon County, 575 rights arrives at the conclusion. When (Wyo.1978); P.2d 1155 and Chey South equal protection laws, pro- of the due enne Stundon, Water and Sewer Dish v. cess, prohibition access to courts and the (Wyo.1971). 483 P.2d 240 against special legislation, designed to fore- close jury decision to set the In broad thesis for majori- dissent as the remedy, are recharacterized as “entitle- ty directly displaces progression ments,” the result is automatic. That the optimism Stovall, 543; Oroz, 648 P.2d government can legal wrong appears do no 1155; Jivelekas, to be common sense jurispru- under the old (1) I dissent governmen- for three reasons: simply dential notion that one has no sovereign tal and immunity in broad cate- to “entitlements.” gories are anachronisms and particularly so where as now either first created or I see the recent- liberty property interest to ly restored and cannot fit within the right, as a not basic some “entitlement” be- principles government; (2) of constitutional upon government. stowed the citizen wrong standard of Many argued have review is used to throughout history that permit deny remedy government was instituted to secure the wrongful injury death; rights people.3 I am among those 89) Wyo.Sess.Laws (Chapter ch. 89 so, should agree. doing who I understand such fail even under the loosest standard of prior government, gifts not review—the rational relationship test. Its government, prop- and therefore not invidiously classifications, discriminatory erly characterized as “entitlements.” designed to withhold remedies for The State of by government, caused justified cannot be vanguard progression to answer the ana constitutionally. sovereign chronism of immunity;4 legislation its current simple. issue this case is Should decision, buttressed Wyoming the victims bear the financial burdens position point achieves at the wrongdoing near or should the solitary regression. Compare government? Jivelekas v. Economic convenience is no Richardson, Congress, Messages Papers bility including Wy Almost Never Undertaken” (1897)). states; the Presidents oming Alstyne, seven other Van Liability: Governmental Tort Change, A Decade of (U.S. Comment, Independence para. (1966); Declaration of 1966 U.Ill.L.F. 919 1776). Party Abrogation The State as a Defendant: Sovereign Immunity Maryland, in Tort in Kantrowitz, Note, (1977); example, 4. See for Leflar and Md.L.Rev. 653 Tort Administration of States, Liability Against Sovereign Survey 29 N.Y.U.L.Rev. Claims —Á “Responsi Techniques, with the classification of 68 Harv.L.Rev. 506 remedy opinion’s scope enough is deny to a or not broad license constitutional State, nevertheless, injured. include the justice to the to slowly surely falling curtain is but jurisprudence to than fundamental More chapter illogical this inexcusable and immunity notion governmental history legal Wyoming. in Whether the wrong a reme- suffers without the law tragic final lines of this drama will be philo- dy. cannot be countenanced It upon by this read and acted court or sophically constitutionally that the bro- or seen, legislature to but in remains be body destroyed legal life is no ken to who are hurt fairness those governmental em- wrong by a when caused agents but still left Chapter and ployee. I dissent because day remedy, of their relief without (1) majority opinion: violates ba- approving away. cannot far (2) justice; ig- principles of American sic Wyoming’s constitution- nores and offends injustice My long against life battle guarantees wrongfully for the rights al liability decoupling which comes with from to injured; retreats an outdated began litigation Davis, in negligence — rejected for constitutional vali- standard University Wyo- P.2d 21 and Awe rights body for dation fundamental (Wyo.1975); P.2d ming, 534 continued Chapter given life. The construction of the until the enactment Wyoming judi- majority by the makes this act, state claims W.S. 1-39- ciary protector against an property Stovall, 1-39-120, through see involuntary taking, protector not the 543; adjudica- appellate to now negligent person’s body or life injustice tion. The observable affront of maiming killing. This me incredi- to change perspective. does not with the ble. disagreement ma- With such total with the necessary expressively jority, to dis- immu- justification The utter lack of scope complexi- cern the and constitutional expressed nity articulately by Justice packaged of W.S. 1-39-120 as into ties Rose, Jivelekas, Robert R. Jr. in claim Bill No. state torts act House special again in concurrence at 429-31 and Chapter the so-called tort crisis of the Oroz, P.2d at 1161: mid-decade.5 Jivelekas, Furthermore, explained 429-431, 1, Wyoming Article supra, § THE II. STATISM. ISSUE IS ADJUDI- Constitution, prevent should not such A CATION FOR POLITICAL light of the thrust of abrogation total PHILOSOPHY of this provision and decisions encircling impe- statism —the have touched and concerned issue is court which Notwithstanding majesty authority applicability. rial the central within its through speak responsibility to the which its actions majority failure of the agents of that are not answer for abrogation of the State’s crown that, decision, damage if citizens.6 The I am confident even Amar, Federalism, jour- Perhaps Sovereignty 6. See well-considered recent law Of government- L.J. 1425 “Victims of subject Yale nal reviews have been written on the sponsored lawlessness have come to dread the crisis, only generally the tort but the validated ** * Simply govern- put, word 'federalism.' sponsored by that the crisis as conclusion is 'immunity' ‘sovereignty’ ments have neither nor psychological was more than economic interests violate the Id. at 1425-27. Constitution^].” the "cures" have altered rational and none of therefore seems evident that least except where the increase of insurance rates cases, some blanket rights eliminated for innocent victims have been conflicts with the Constitution's then, payments, but even reduce direct claim principle of remedies for viola- structural full proportional been reduction in rate has not legal rights against government. tions of elimination of the amount denied What, then, possibly justify can the invocation injuries sus- citizens to recover Surely sovereign in those cases? Priest, tained, e.g., Insurance Crisis Current Constitution, text have not the we Law, L.J. and Modern Tort 96 Yale already seen that claims to sov- ereign immunity have no textual basis.

1325 majority legisla- con- does so now when the my concern is distaste further says responsible ture the state is not when advanced in construction now stitutional government agents negligently careless- only protects majority result ly cause or death.7 body property, or life. sanctity of old as the societies conflicts are as These judicial governmental The notion of and dogmas accurately confined within and not sovereign immunities is found in Russell v. wrong. king It encom- that the can do Devon, Rep. Eng. 2 Men Term 100 political conflict be- passes a fundamental (1788). Rep. apologists 359 The current ephemer- those directed towards the tween argue who continue to government and the eternal power al open- sovereign despite and immunities with more property as contrasted ly injustices perhaps note admitted should of the individual Eng- modernized ideas that Men Devon was overruled imperative Jaffe, liberty Against life and as a territorial land in 1890. Suits Sovereign defended Governments and Im- ego and self to be Officers: (1963); Reeves, 77 Harv.L.Rev. 1 priority two-pronged by property munity, invasion Sovereign Immunity Leviathan Prag- all-dominating government. and Bound — World, in a Modern 43 Ya.L.Rev. 529 matically paradigms cost-bene- confined (1957). Sovereign immunity as a declara- safety and inflict loss on deny fit criteria authority of the tion of the state differs hardly fit into constitutional injured given from as government for access to responsibility government justifica- local units of both protection for redress equal and justice Likewise, composition. historical tion and injury. govern- differentiations are found between sovereign and Governmental proprietary and functions and some- mental justify pre- manipulated symbols to become distinguishable discre- what offset are the by preconceived ec- results desired dictable tionary and ministerial activities and the persuasions. The and societalistic onomic comparisons logical and realistic and more protect jury state from over- wail planning activity from separations of the injured its cre- compensation to the reached govern- preservation the maintenance fail- atop legislative scendo Recognition is also re- mental function. inequities in admitted ure to correct the sovereign quired of the difference between justice. failure of state, immunity for the while times, employees this court has been ac- In recent of state cannot be or absolution to enforce the state constitution corded an identical insulation called University Louisville constitutionally. and has not significant regard four times O’Bannon, (Ky.1989). S.W.2d 215 770 It is unfortunate previously flinched. 1987); Jackson, County (Wyo. School Supreme 221 Washakie P.2d See also Id. at 1489. Amendment, Herschler, Court, (Wyo.), Sov- and State 606 P.2d 310 the Eleventh Dist. No. One v. (1988). ereign Immunity, Yale LJ. 1 Springs County 98 denied sub nom. Hot cert. Cranch) (1 Marbury v. Madison U.S. [5 County District Number 1 v. Washakie School (1803)] proclaimed the es- 60 2 L.Ed. 101 S.Ct. Number 449 U.S. School District 86, liberty, of laws civil of a sence of (1980); Witzenburger v. State 66 L.Ed.2d 28 men, availability of a was the and not of Development Community Au ex rel. governmental wrongdoing judicial remedy for 1100, reh’g thority, denied 577 575 P.2d legal rights. Against private that invaded (Wyo.1978). Comparably immersed 1386 principle stood a common law of this force tradition of required was the denial of shame immunity, sovereign a tradition reapportionment, ex rel. Whitehead v. transposi- English in its law misunderstood Note, Wyoming Gage, (Wyo.1963); 377 P.2d 299 States, but reinforced tion to the United (?) Light Legislative Reapportionment in the young republic. early political battles of Carr, (1963). Wyo.L.J. Cran 23 See Baker v. Sovereign Immunity, Duffy, Id. at 126. Cf. Thomson, (Wyo.1975); Bak 530 P.2d 726 ston v. Fiction, Benefits, Entitlement Suit Officer Carr, 7 L.Ed.2d U.S. 82 S.Ct. er v. Massey, State Sov- U.Chi.L.Rev. ereignty Thomson, (1962); Amend- Schaefer the Tenth and Eleventh (D.Wyo.1964). Harris v. F.Supp. See also ments, 56 Chi.L.Rev. Shanahan, Kan. State, (Wyo.1988); P.2d 780 Hoem v. State, Rocky Ass'n v. Mountain Oil and Gas 1326 Newcastle, (1926) Wyo. 249 P. 799 35 justified a reinstat- in O’Bcmnon

The court (now present apparently by this university, superceded the immunity to sovereign ed legislation), liability approved for fail- to the medical was the extension held that unconstitutionally im- to city ure in use the of reasonable care facility involve would existing public common In keep of the safe for travel. absolution streets permissible injury. personal v. Commission rights of action Weaver Public Service law of (Fla.1989) Kolb, 462, 479, 732 Wyo. 543 So.2d 278 P. 542 Wyoming, Kaisner v. 40 Comment, the in (1929), Role Courts recited: and The Chief Justice Blume Immunity, Abolishing Governmental highways the does not own the But state importance The L.J. 888 1964 Duke exist, or at least capacity; in that these application Chap- broad derived from the maintained, solely reason of the the fact that part in from ter 89 comes made, by paid, and contributions taxes compar- had before Wyoming never in- private corporations, and individuals ably scope within broad Highways exist cluding private carriers. system. justice delivery tort Wyoming of the members of the for the benefit only great day is a new but a This right large, only which at and reapportionment, injustice. No less than regulate prohibit their the state has singularly of citizen’s this denial sought police power in must use regrettable. promote safety, peace state general people. of the and welfare LAW III. HISTORY OF WYOMING conceptualizing this question critical The clear Wyoming Constitution makes The of Chief Justice Blume Weaver thesis government is not an end in itself—it obligation of the state accords whether as found- rightful existence derivative responsibility for its failure compensable people and upon power of the ex- ed history then performance. Case follows only constitutional tended in structure Company cases with the Utah Construction justification. authorization pay obligation as questioning people, in the power All is inherent required. v. construction Utah Const. Co. governments are founded on all free Commission, Wyo. Highway State authority, their and instituted their (1933) Highway 19 P.2d 951 and State safety happiness; for the ad- peace, Co., 278 U.S. v. Utah Const. Commission they of these ends have all vancement 73 L.Ed. S.Ct. indefeasible an inalienable and times review, modern Compare in more State alter, reform or abolish v. & Highway Wyoming Brasel Com’n of they may government in such manner Co., Inc., (Wyo. Sims Const. proper. think Co., 1984) & Inc. and Brasel Sims Const. Wyo. art. Const. § Highway Wyoming, Com’n State result, (Wyo.1982). P.2d 265 majority This which constitution- remedy wrong of a for a alizes the denial depression years Wyoming state, hardly only can at the hands legislation pervasive fair trade inevitably laby- from the said to follow generally then enacted called Chief sover- rinth Blume, Langley, Justice I am astounded eign case law. (1938), again Wyo. P.2d 767 judicial to a vic- ear can be how deaf society analyze the foundations our justice. cries for tim’s responsibility. The judicial our basis circulating the so- Crewdson, anxiety today about Wyo. In Ricketts compared recog- insurance crisis cannot be originally called P. 1042 this court everyone enveloping trouble in tax the level of nized exercise of discretion as- years. Wyo- during depression re- sessment to be absolved that era did not allow that ming justices of arbitrary or dishonest view where navigational anxiety to detract their litigable heavy issues. could raise conduct Thereafter, City fix the constitution. Opitz v. Town Nearly abridges Wyo. 67, law every individual P. determined that freedom of to a action more less ex- City Cheyenne responsible could be nearly all instances one is tent. when damage in a negligent award for the main- enacted, rise, rise, gives may give it or swing tenance of public park. a in the a conflict between such freedom on the This court observed: hand, power legisla- the one of the of the courts of country, this on [M]ost abridge ture to it on the other. The ground another, one or have held cities solution of conflict is in its the negligence failing liable for in keep be, are, nature. Courts must wheth- their streets in a safe condition for trav- not, willingly er or arbiters ultimate el. liability While such is sometimes de- is, partic- as whether or not there in a statute, clared imposed it is often in case, ular an unwarranted of the invasion statute, absence of the latter guaranteed rights above mentioned. 11 class of damages cases is They Am.Jur. that 1087. have found so- usually exception sustained as an lution, just only possible one un- —the general exempts rule city that from der the circumstances—in the standard liability negligence perform- for in the 236; of reasonableness. R.C.L. Am. ance public duties. That Jur. 1073-1074. standard indefi- at nite. What is reasonable Id. 241 P. depends facts and circumstances. 11 Am.Jur. Following Ramirez, Opitz and this court 1074; 236, 239; 6 R.C.L. 19 R.C.L. 807. again municipal liability considered in Wil- that, thought Paine’s as civilization Laramie, Wyo. 234, v. City son progresses, reg- men will more more (1948), P.2d 119 where a Caterpillar tractor proved ulate their affairs own has not in performing “governmental used func- proceed- itself correct. Altruism has not lowering tion” of grade got street loose History replete ed far. with the causing and rolled the hill injury. down wreckage private of rules of law. That the unfortunate accidents to the be no than if surprising, would less children involved this case to be in the were otherwise field of law. deplored goes saying. without That increases, As the of people number as there is great deal of merit in the as develops, trade civic centers become contention crowded, society more com- becomes negligence for part govern- on the plex, problems more and more arise ments and agencies should solved,

which must be and the freedom questioned. be abolished cannot be But movement and of action of the individ- whether the courts should do so on their must equal uals be harmonized with grave own motion a matter of doubt. always This easy all. is not at Id. 199 P.2d 119. do. Certain rules have been laid down to help. This ease for equip- establishes constructing ment valid, roads where order that a statute bemay aim, usage roads and their not purpose, or end did exist. thereof must be Adding to purview Wyoming’s law on scope police within immunities is thereof; Wyo. 45, power, Bishop, and in Merrill v. furtherance (1951), adopted against means must where be reasonable and action the constitu- appropriate arbitrary, and must be tional state water commissioner and other the accomplishment end in of the state water officials was not an action view; words, against other there must be a the state but a maintainable pur- substantial connection between the action based on the tort of the officials pose provisions view and actual themselves. law. But in Ellis v. Wyoming Game & Fish 343-44, at P.2d

Id. Commission, Wyo. 286 P.2d 597 (1955), carefully analysis, against In a constructed action the Governor and City Cheyenne, court damages Ramirez 34 other state officials for during proof neglect that such pelts was determined whatever of beaver

the seizure plaintiffs injury. caused gov- in a the state against an action to be and, lacking approval function ernmental Id. 309 P.2d 152. state, maintained. See not be could sequence Wyoming first cases This Royalty v. Trustees Hjorth Co. likewise Maffei, 338 808 as an ended with Wyo. University Wyoming, wrongful of decedent action death quiet title through negligence where a action could

P. 9 contended directing officer him to town’s assist maintained citizen not be of a felon. A to the pursuit demurrer interest in their university to determine sustained, plaintiff appealed, complaint was property. was affirmed on the basis and the decision then, Unfortunately driver automobile municipality was immune from that Wyo- Price, 13, 1944, a ran into on March exercising liability when Department snowplow ming Highway immunity function with unwaived even complaint was sus- to the after a demurrer procurement liability of insurance. Conse- tained, reappeared before this quently, company escaped li- the insurance consent suit legislative lack of court. A ability responsibility within its stated insur- par- the state as of justified the deletion govern- coverage ance assertion of This then Price, 167 court ty. P.2d mental defense. matter contributory negligence as a added again forthcoming: platitudes were for the dismissal to justification of law for must that in the Although we hold highway claims also include State, present state of the law of this snowplow driver. See superintendent and of from liabil- town Kemmerer immune Lawson, 374 P.2d 201 likewise Osborn deceased, family ity to the of we A decision in Harri- (Wyo.1962). curious may ineq- that this be not insensible Commission, Liquor son may The deceased have natural- uitable. 13, 177 defined Wyo. ly joined policeman in aid of the local the state proprietary of activities consequence. In this suffered death as actually liquor of were sale view, acting in a com- Mr. Maffei was legislation, lacking permissive ren- might de- manner and as mendable agency immune from the business dered not good of citizens. In dissimi- sired all legislature has suit. lar circumstances our fit of shortcom- seen to take notice some Wyo. Lander, 77 Savage v. Town of sepa- law enacted ings our and have plaintiff, after 309 P.2d 152 the relief of fami- rate laws for bereaved gut- car stepped out of the into parking, in a It is our misfortune case such lies. inlet, severely in- and was ter drain fell privileged we are not as this that brought verdict jured. The directed sympathies, respond to the dictate our governmental immunity escape of it. stay must with the as we find law analysis an differentiat- supreme court for opinion did Id. 818. The author pub- planning criteria of a ing between constitutionality special not consider negligence in mainte- improvement lic legislation the relief of fami- “for bereaved nance so that: X of this lies.” Id. at 818. See Section gutter that the recapitulate, To we find dissent, infra, Wyo- addresses plan ap- according to a was built drain ming prohibition special constitutional Lander, that the proved by the town legislation. inherently dangerous plan was so IV. OF MODERNIZATION aas matter of that the trial court could WYOMING LAW negli- law deem its construction gent, only that there was some evidence scope Chapter 89 can The broad scope operation in the mainte- to all negligence be related to its defendant’s government. I not secrete units will gutter drain but there nance of it, warning should be a arena which the the limited from its text prefer- It is properly proba- action be well-advised. have legislature should plan, design de- able to start with a sound such as constitutionally addressed bly by crite- Tort example, obsolescence an the Federal Claims and functional fects Act, it,” subjects say, of those “do changes. Neither than for this court ria repair machinery place failure of a anything to do with have absence edge narrow and change mark the of this effect. crew to ordered into sensible highway so that recently resurfaced Governmental was abolished edge of nighttime driver can tell where (footnote omitted) Oroz, 575 P.2d at 1158 sweep of this ends. The broad the road continuing schol- Chief Justice Guthrie’s immunity accord- in creation of legislation arship: similarly requires a broad ing place immunity from tort We hold that the judicial review. analysis proper judicially conferred heretofore rec- it has to be perspective, Within (municipal upon corporations, counties number of histor- ognized significant that a districts, school and other subdivisions deci- emplaced and existent ically Henceforth, government) abrogated. parking and sidewalk driveway, sions as to liability exception is im the rule is —the legisla- now reversed are liabilities Milwaukee, munity, City Holytz v. of responsibility for of withdrawal tive supra Wis.2d 115 N.W.2d [17 negligence. government’s immunity, of how The removal 620]. ever, governmental mean that a special concur- does not

I am also attentive Jivelekas, entity is for all harm that results liable Justice Guthrie rence of Chief impose not from its activities. does at 433: 546 P.2d merely liability, absolute or strict hereof based I in the result concur private subjects the same rules as it to plaintiffs prove failure of upon the duty if a has persons corporations or city of the were that actions and a tort has been com violated been agree of the proximate cause * * * decision, however, is This mitted. loquitur does ipsa of res the doctrine interpreted imposing as not to be agree- my I withhold plaintiffs. aid body for acts or views, upon ment, expression my of without exercise of its omissions opinion which portion of the from that quasi-ju quasi-legislative or judicial or or sovereign immunity for the discusses functions, v. Town Hargrove and un- dicial improper I deem it reason that of 133; Beach, Ho supra, 96 So.2d at ques- reach this Coca necessary of decision to Milwaukee, supra, 115 City upon lytz made disposal tion because * * * specifically 618. We herein I N.W.2d at grounds. Nor am first two these court decisions of this prior all as reverse doctrine satisfied that county subdivisions, suggest which hold applied has or districts, political subdivision counties, other such school as such liability. immunity from tort enjoys an origin and has the same municipalities, to, as, that of the or is identical roots recognized the tide Raper also Justice State, and immunity of the sovereign events: this no view thereon at express would join in court does not While the whole time. time, ap- so, point saying dissent in Jiv Raper, handwriting his is on Even Justice me that the pears to 434, recognized the elekas, legislature might 546 P.2d at and the the wall change: appropriateness prepare well advised proper claims arrange funding of tort function of duty nor the It is not opinion is The court against it. legislature how any court to tell a this or county. immunity away from the taking legislative function. perform its arm of State county is a unit and A opinion, of Justice Rose’s strength many functions by which government, disagree that should allow though I we decentralized, disposal as for trash and was liable as administration state corporation have would been. and collection as tax assessment such county assessor and treasur- through the incon- Admittedly, the case law been laws, of the State’s er; enforcement Davis, county In sistent. 495 P.2d county prosecut- and a sheriff through a by governmental shielded supervision elections attorney; ing injuries it had responsibility clerk; support county through the attempt- negligently Retail clerks caused. through system, the State’s declaratory judgment ed an unsuccessful furnishing of court University Wyoming court and in a clerks commissioners; county dispute a lo- in Retail Local 187 labor Clerks facilities roads, part University Wyoming, 531 forming a of AFL-CIO v. cal network conclu- (Wyo.1975). This court’s through system, highway the State’s no statu- in that case was there was sion commissioners; legislative appor- county tory litigation. permitting this waiver by county and combinations tionment Awe, 97, dormitory was rented counties, etc., court have etc. visiting families for the summer season to through county. reached the State Sovereign im- attendance. for classroom Id. at 1161. adjudi- munity improper notice denied blowing change The winds of were college dangerousness of the cation of the gov- legislative analysis period second facility a serious window fall which caused sovereign immunity arrived ernmental and injury. Conversely Collins v. Memorial fashion until now in a definable continue County, 521 Hospital P.2d Sheridan of develops with this full retreat reversed as (Wyo.1974), we determined that the present Douglas, In Lore v. Town case. of a purpose of insurance constituted waiver (Wyo.1960), city the was liable 355 P.2d 367 at to the amount of the immunity, of least maintenance of sewer lines. negligent for coverage, recognized in that insurance v.Co. Zale Next followed Bulova Watch response Maffei, a statute had been en- Cheyenne, 371 P.2d 409 Jewelry Co. directly contrary acted. case was of (Wyo.1962), Langley, reversed which change perhaps explained the as Maffei holding that another fair trade P.2d in membership the court that had oc- in of violative due law unconstitutional as of was Jivelekas, 546 P.2d 419 was the curred. v. process equal protection. Bell with the academic and beginning of the end (Wyo.1963) 377 P.2d 924 determined Gray, Rose, al- enthusiastic attack Justice exemption that salesman consti- insurance immunity his was not though opposition discrimination. panel tuted unconstitutional of decision within the basis case Laramie, However, City v. sitting. in Chavez In of court then Town Jack- of of (Wyo.1964),road Shaw, (Wyo.1977), 389 P.2d construction a 569 P.2d 1246 son v. plaintiff damage falsely and invaded caused for the arrested successful verdict governmental govern- for which the mu- plaintiff a function affirmed. The end to was immunity Oroz, in not answerable tort then came in nicipality was mental Directly damage. specifically caused which reversed negligently their Laramie, Davis, City governmen- v. 495 P.2d 21 and contrary Fanning in buried of duty immunity as an and discarded (Wyo.1965),a discerned tal outdated 402 P.2d 460 conception. Sovereign immunity sign immunity judicial waived to maintain a street question, although in Justice remained Cheyenne defense. Water South concurrence, Rose, ob- persuasively Dist., a 483 P.2d followed that Sewer ending period as now served a of time instrumentality governmental of sewer Chapter of 89: enactment backup dam- district was liable sewer York, however, age. opinion In Douglas my judgment, Town of court found the such (Wyo.1968), specifically P.2d 760 this embraced should have Douglas range fire abrogation Town of liable for a and sover- fire the town would include eign which was started as stands, charged opinion now Douglas Wyoming. Town of had As dump. The subject summary judgment. is not State’s Connett v. Fremont considered, though the precisely County even School Dist. No. Fremont language enough may be broad to abro County, (Wyo.1978) required P.2d 1097 sovereign gate immunity. the State’s of summary judgment appeal reversal on sufficiently My subject views this analysis duty super of the school to City forth in set Jivelekas Wor vise activities of the student raising as land, Wyo., 546 P.2d and need not question negligence. O’Donnell v. say reiterated here. Suffice City Casper, (Wyo.1985), 696 P.2d recognize I am unable to substantive a street invoking maintenance obvious distinction between the so-called doc danger potential rule of the sovereign im trines municipality. Stovall, was a munity justify separate which would segment of facilities the tort claims See, Muskopf treatment this court. act discerned and determined that District, v. CorningHospital 55 Cal.2d highway public facility. constituted a Cal.Rptr. 89, 359 P.2d 457 Conversely, State, Hurst v. 698 P.2d 1130 (1961)]; City and Holytz v. Milwau [ (Wyo.1985) discretionary aspect was a kee, 17 Wis.2d 618. Fur 115 N.W.2d parole responsibility invoking gov board thermore, Jivelekas, explained su immunity justification. ernmental 429-431, 8, Wyoming pra, Article § require Two final cases of this court rec Constitution, prevent should not such a State, ognition. Troyer Dept. Health abrogation light of the thrust of total Services, Social Div. Vocational provision and the decisions of this Rehabilitation, (Wyo.1986) 722 P.2d 158 court which have touched and concerned presented the inquiry whether the con applicability. Notwithstanding struction of an elevator the handi speak majority failure of the capped constituted a function as a abrogation health State’s also, provider. care decision, that, The court current I am if confident even analysis, found that closed-end opinion’s scope immuni enough is not broad approach adopted State, nevertheless, ty Wyoming in as to include the the similar surely New Mexico slowly falling curtain is but on to was constitutional. The illogical concept chapter this and inexcusable issue answered in or ratio deci- whether, legal history Wyoming. in Whether is to the dendi recover for after negligently final lines of drama tragic given this will be inflicted have been upon by by statutory extinguishment read acted this court or by immunity, legislature seen, the be in remains to recreate the can then the defen to by fairness those who are hurt the justice barrier irrationally seg sive to agents of the State but still be left Finally mented activities. Hoem v. remedy, day

without the of their relief State, (Wyo.1980), this far away. cannot be court, application by as now denied in review, majority present adopted Oroz, (emphasis origi- 575 P.2d at heightened scrutiny apparent test. It is nal). disregards majority that this what in Wyoming is sad to observe that Hoem, year ago trinsic 756 P.2d at 785 Act, Governmental Claims W.S. 1-39-101 special under the concurrence Justice 1-39-119, through subjected has been to a Thomas: barrage legislative to efforts diminish standard, “heightened scrutiny” The delivery justice negligently to applied, presumption which it eschews a State, injured. See Worthington of constitutionality, which must over- (Wyo.1979) Wyo.Sess. be State, challenges come ch. 24. one who the statute Oyler Laws 618 P.2d 1042 when the rational test is (Wyo.1980) development invoked basis invoked a factual requires greater justification discretionary of a ministerial test as to the for the employee of the and re classification. At other end of state quired previously granted spectrum, reversal of the the standard also eschews the M. platitudes soundly denuded Edwin proof placed on the

heavy burden perhaps 500 other writers compelling Borchard state demonstrate state articles, journal but a new and law text interest, scrutiny” stan- which the “strict Wyoming now called Instead, summons explained by as requires. dard legis- constitutionally face this reversed [Farley Engelken, court the Kansas authority central lative direction toward “height- (Kan.1987)], the P.2d 1058 wrong- interest of and statism requires “the scrutiny” standard ened injured fully individual. substantially statutory classification legislative purpose.” legitimate further a dissent, principle thesis of this borne The determination, reaching In monarchy, dictatorship or by an aversion to requires scrutiny” analysis “heightened as autocracy a feudalistic any centralized the burdened class that the interests of society question how bureaucracy, is a against those of the benefit- balanced be constitutionally step into the mo- back can class, context of the ed in the clear commands rass. the face peculiarly ap- This standard purpose. Constitution, I Wyoming conclude this, as plicable in instance such way. it cannot done this question any political does not involve Chapter it ve- as relates to this one essentially state but importance to the highway patching after activi- hicle rollover upon private interests. Utiliza- touches ties, pulled out constitutionally cannot be “heightened scrutiny" stan- tion of the scope excluded from the statu- eminently fair. in this case seems dard deny generally tory intercession used Thomas in I with Justice potential any injured highway concurred relief to challenged legislation in Hoem, but user. by even a was unconstitutional that case Governmental Claims applied Chap- now basis test as rational in the 1979 proudly Act8 announced ter 89 that enactment, Wyo.Sess.Laws ch. “height- under cannot be sustained part: stated in Setting apart vic- scrutiny” test. ened Purposes 1-39-102. of act. from victims [highway tims of accidents] (a) recog- Wyoming legislature separate as a conduct of other tortious ineq- inherently nizes unfair and patently reason- class is unrelated results which occur the strict uitable purpose, nor can it able or rational state governmen- application of the doctrine of by any of facts that justified state Wy- cognizant tal reasonably Of a might be conceived. oming Supreme decision of Court Oroz legisla- certainty, legitimate there is Commissioners, County Board of for this classification that purpose tive recog- P.2d 1155 It is further “heightened scrutiny” survive the would political sub- nized that the state test. public as of revenues divisions trustees

Hoem, at 785. the are constituted to serve inhabitants and furnish Wyoming of the state of IT TO V. CHAPTER 89—WHAT DOES through not available certain services GOVERNMENTAL THE WYOMING and, parties case of the private the CLAIMS ACT state, may only ex- state revenues upon legislative appropriation. progress pended way back stood legislature to adopted by This the deterrent of immuni- act parasitic eliminate respective equities between justice for ty which withheld fairness and balance injured by individual, persons governmental actions but the state now injured Wyo- taxpayers the state of against the tide for field to move reverses ming by gov- injustice. the old revenues are utilized It is not whose restoration attorney session, objection by governmental following the office of a the 1977 Journal, act, Forty-Fourth Digest passed general. also of House claims House Bill had been Legislature Wyoming legislature by governor be vetoed entities on behalf those tax- exelusions from waiver of ernmental were adopted: payers. This act is intended to retain a Section 1. W.S. 1-39-120 is

any common law defenses which defen- created to read: dant have virtue decisions 1-39-120. jurisdictions. this or Exclusions from waiver of from other immunity; highways, etc. state, (b) In the ease this act (a) liability The imposed by W.S. 1-39- judicially categories all abolishes created through 1-39-112 does not include “governmental” “proprietary” such or liability damages by: caused “discretionary” or functions and “minis- (i) A plan defect in the design or previously acts used terial” courts culvert, bridge, any highway, roadway, liability. to determine This street, area; alley, parking sidewalk or impose imposi- act not nor does allow (ii) The failure to construct or recon- govern- tion of strict for acts culvert, any bridge, highway, struct public employees. mental entities or roadway, street, alley, or park- sidewalk act, rocky pathway after a from area; ing conception passage, to ultimate achieved (iii) maintenance, including main- effort, only by unrelenting continued compensate tenance to for weather condi- subject to since almost annual dilu- been tions, culvert, any bridge, highway,

tion 9. roadway, street, alley, park- sidewalk or ing area. act, The initial claims Wyo.Sess.Laws ch.

Wyo.Sess.Laws § ch. embraced drive- ways walkways city, in highway, coun- Then, for whatever reason not discerni- ty available, and educational institutions within a ble in record act in sec- public facility repealed tion category: three also W.S. 1-39-111 non-immunity which created the category Liability; public 1-39-111. facilities. public Consequently, facilities. a unless governmental entity A is liable for dam- culvert, street, bridge, highway, roadway, ages resulting bodily injury, wrong- alley, parking put sidewalk or area can be ful or property damage death caused vehicles, within motor aircraft or water- public negligence employees while craft, 1-39-105; building, W.S. a recreation scope acting within the of their duties in public 1-39-106; park, area or W.S. public operation or maintenance of 1-39-107; airport, utility, W.S. jurisdiction within the facilities 1-39-108, water, gas, W.S. which includes governmental entity. employing collection, electric, liquid solid or waste Stovall, See 648 P.2d 543. The heating ground transportation; or attacking to redress of 1-39-109; facility, medical W.S. there negligent the citizen for fault of (except perhaps plows little snow (as instrumentality buses) present upon school available in law act), year, good one for the basic did exemptions provided 1- W.S. one, First, things.

two in section can of symptomatic material 39-120 react.10 This is 9. See 46; Wyo.Sess.Laws Wyo. provision Chapter completely ch. 1981 of is 1980 nificant 89 15; 142; Wyo.Sess.Laws ignored. example, terminology ch. ch. Sess.Laws 1986 As an the of 19; Wyo.Sess. Wyo.Sess.Laws original ch. 1986 1986 W.S. 1-39-111 in enactment had 74; 89; Wyo.Sess.Laws Chapter changed public alleys Laws 1986 and ch. from streets facili- 181; 142; Wyo.Sess.Laws change ch. 1986 ch. 1987 ties. The related to inclusion of rest 93; Wyo.Sess.Laws Wyo.Sess.Laws by highway depart- ch. 1988 facilities constructed the adjacent highway system. ch. 45. ment to the See Di- Journal, gest Forty-Fifth Legisla- House of State Wyoming repeal ture record public of for 10. The of as the W.S. 1-39-111 Stovall, appeal, apparently P.2d 543. Now facilities section for the closed-end door, immunity; infinitely outside of the latrine inside of complexities statute has more and ef- 1-39-106, (un- building, exception immunity expul- responsibility fect W.S. than litigation, highway W.S. is as Strangely sions of 1-39-120. in less one to define rest facilities areas). appeal majority opinion, sig- now the most recreation Lines, P.2d protect reh’g left to citi- con denied 701 residue

the moribund (Wyo.1985). P.2d 1139 negligent deprecations zens from justifi- is government. There agents of joint in minutes of the It is indicated comparison. for serve levels cation to in committee which are included original purpose of this record that Oroz, repealed 1986 act Specifically, the Chapter governmental to restore 89 was justification 1155 from which for 575 P.2d highway maintenance and de- obtained, act had been passage of the basic sign. justification If that for what was though philosophical standard and even done, the tools used included both was still remain in the citation of Oroz the case places ax and as meat chain saw all rejected text. Also broad cate- statutory driving walking in this state be- driveways of gory walkways our came included the created immunized recogni- statutory society further was the irresponsibility. zone That reach tion: potholes.11 windrowed snow summer political subdivisions state and [T]he Chapter The effect of excise out revenues are consti- as trustees recovery wrong- of a citizen’s of the the inhabitants tuted to serve injury by agents government place ful Wyoming and furnish certain state of exception, unfortunately but one where the through private not available services greatest exposure to harm where exists state, and, state parties in the case you can walk or drive outside. This cre- expended upon may only be revenues exception has a ated classification basis This act legislative appropriation. place related to door im- —outside legislature to balance adopted by munity liability. the door It does —inside persons in- respective equities between present design consideration of versus by governmental actions and the jured defects, anticipate nor maintenance does taxpayers of the state of governmental or the difference between by govern- are utilized whose revenues propriety functions and discretion or minis- taxpay- on behalf of those mental entities acts, characters of terial since those differ- This act is intended retain ers. scope responsibility entiation of of socie- law defenses which defendant common ty specifically have eliminated been from this may have virtue of decisions initial claims act itself. The jurisdictions. other placement responsibility for excused Wyo.Sess.Laws ch. § negligence fault and lacks absence of philoso progressive No funeral for analysis passive difference between good phy provided even the sense negligence wrongfulness and active statutory the case reference when delete sounding within the character of a lack of legis pursued. cases the repeal was Other compared gross to willful and miscon- care Furthermore, for denial of further liabili Chapter lature reversed 89 discrimina- duct. O’Donnell, ty 696 P.2d would include: torily creates a character of Stovall, 543; 1278; as well as the immunity, which had never existed prior Douglas, state, 445 P.2d restoring cases Town time while at same 460; Quest 760; Fanning, Highway 402 P.2d sovereign to the State 1,Wyo. P. Upton, Department separate Final- Town function. (1927); Oyler, craftsmanship statutory composition P. Opitz, ly, 799. Cf. question 1042; leaving reflected Dieringer, is absent agent for (Wyo.1985); absolution from and Hamlin v. Trans anticipate concept challenge is to with institutions confinement where outside The geographical Wyo.Sess.Laws to confines of what in addition do ch. activities occur. See 1975 by walkways driveways was immunized incongruities may pres result are 171. The liability as well as what W.S. 1-39-120 from happens unimaginable ently to all circum when related roads, bridges and sidewalks in to body negli injury where from stances Outdoor parks other recreational facilities. employee gence can occur. guard perhaps apply facilities could national nothing There immediately replaced. is theory a related to negligence as his own requirement to as a wrong defend with governmen- for the institutional for the citizen to as- salutary opportunity employed. In he be tal unit which a justice. applying his claim to sert text, within the employee exclusion reapplied created and place test for both requires duty 1-39-104 scope of of W.S. se- immunity, legislature Chapter 1-39-120, only in- relation to W.S. define a lected an irrational difference to exceptions applied to W.S. 1-39-105 cludes justification ex- result without functional through 1-39-112. deny justice within cept as directed to territory identified for that insula- special REVIEW VI. STANDARD OF responsibility walkways and tion from — necessary challenge the is not to buildings. driveways outside of system adopted claims closed-end tort in dis- challenge I first this court would 1979 to eliminate the state scrutiny requiring heightened that a sent in sovereign immunity constitutionally to now recovery responsibility applied be when reject Chapter This is true matter is injury person a to be for death or as well as unjustified or unreasonable how com- cognitively protection involved to recovery the indi- illogical the denial unques- pared property which remains body deprecations upon his for the vidual scrutiny re- tionably most strict within the might agents be immunity to take sovereign When view. an existence applied since trucking equipment property ranch decisis. How- recitation stare historical I justified, could relate payment without or an outdated ever, stump like rotten for only a reasonable basis test of use, non-conforming this re- building as a damaged equal- life physical injury or to be irresponsible concept need not jected and Otherwise, I do not. This ly protected. destroyed. immediately removed comprehensively procedurally and court However, recreated nor it should neither be heightened scruti- perceives by the test press against a constitu- back restored validity of a medical review ny to test the society to membership of tional important is the absolution panel. No less compensa- from detachment require their responsibility for the government for Secondly, injury or death. bodily tion for injury negligent infliction death. in the enact- as set forth the entrenchment cre- problem from the generic broadcast justification to ed lacks sufficient statute addressing the test of cases scendo inquiry when ex- constitutional withstand of denial of basic consti- question review justice provided upon the table of amined process including rights, due tutional Wyoming Constitution by limitations in the disguised poorly is the equal protection, to harm or legislature can do what chosen, test, if first fact that as immunization injure citizens. Just dispositional intended. result justify promotes irresponsibili- responsibility from analysis be- Consequently, the in cases negligence ty, absolution that this contention gins comment moralizes carelessness and justifies or minimal justifies the modest denial “only else one for someone and death and communi- support of reasonableness re- things” which tortfeasor of those involved, sup- no matter what cates foreclosed. sponsibility is heightened If plicant has been denied. test, in this as found case rational- scrutiny circumstance is addressed as analysis totality given exists cannot be highway ity will be narrow drop off no- highest scrutiny to install denomination

compared to failure the third or perceived to warn the for discrimination differentiating markers means a basis tices or relief. by judicial resurfacing creates obvious exists to be corrected when user example rights to edu- driving cus- danger Compare greater zone of cation, system Independent ex- School highway San Antonio whom the tomer for 1, 93 411 U.S. S.Ct. Rodriquez, can be Dist. v. Similarly, a sidewalk ists. broken 16, 411 U.S. 1278, reh’g denied if 36 L.Ed.2d signs even by patching or safer rendered 1336

959, 1919, (1973) 93 S.Ct. 36 L.Ed.2d 418 context creates a claim in tort. David Cf. (White Marshall, JJ., dissenting), Cannon, son v. which 344, 668, 474 U.S. 106 S.Ct. reaches the fundamental societal existence 88 L.Ed.2d 677 and Daniels v. enterprise system of either a free of indus Williams, 327, 662, 474 U.S. 106 S.Ct. 88 try organization or a repre democratic (1986). L.Ed.2d 662 Here we have a stat equal rights sentative dispossesses ute which Wyoming judi person a female to serve as executor or ciary from affording relief to the victims which, representative although right al tortious conduct where happens the harm denied, will never be the future of the in a circumstance by place selected and the Reed, nation is not invested. Reed v. 404 type actor is some of state employee. Al 71, 251, U.S. 92 S.Ct. 30 L.Ed.2d 225 though the continuity of the United States right I do not differentiate to freedom Supreme relating Court cases to constitu compensation from or for loss of limb or rights tional to recover for and death important right life as less than the to vote. unprotected minimal or property while Redhail, 374, Zablocki v. 434 U.S. 98 S.Ct. rights given have been a broad constitu 673, (1978); right 54 L.Ed.2d 618 respect, tional it makes little or no sense in procedures governments fairness before metaphysical recognition of body. self and may deny liberty property; life, The direct logic failure here is to sustain Sugarman Dougall, v. 634, 413 U.S. 93 the constitutionality of this character of 2842, (1973); United S.Ct. 37 L.Ed.2d 853 justice denied for the individual. See De Kras, 434, States v. 631, 409 U.S. 93 S.Ct. Ayala v. Florida Farm Bureau Cas. Ins. (1973) (Stewart J., 34 L.Ed.2d 626 dissent Co., (Fla.1989). 543 So.2d 204 Like denial Connecticut, Boddie v. ing); 371, 401 U.S. compensation there, worker’s benefits 780, (1971), require S.Ct. 28 L.Ed.2d 113 right denied justifies to recover here indigent ment for prepay pro divorce judicial heightened scrutiny. fees; ceeding filing although divorce is justify Efforts to immunization fundamental, not; negli Goldberg bankruptcy gence 254, by public when Kelly, 397 U.S. 1011, committed officials S.Ct. (1970); their Shapiro Thompson, responsibilities L.Ed.2d 287 exercise of for road 618, 1322, ways walkways 394 U.S. logically S.Ct. L.Ed.2d cannot be re (1969), Harper right marry; lated to the Vir processes discretional inextrica ginia Elections, State Bd. 663, bly 383 U.S. in dealing involved with the minds of 1079, (1966), 86 S.Ct. 16 L.Ed.2d right people by parole probation officers McLaughlin v. speech; freedom of uncertainty where is the constant. Florida, 184, 379 U.S. 85 S.Ct. Hurst, 1130; Martinez v. State 283, (1964), 13 L.Ed.2d 222 prohibiting in California, 277, 553, 444 U.S. 100 S.Ct. cohabitation; National Ass’n terracial 481, ’g reh denied 445 U.S. 920, L.Ed.2d for People Advancement Colored v. State 1285, one, S.Ct. L.Ed.2d 606 Alabama, 357 U.S. 78 S.Ct. we consider fault and carelessness as mea (1958), right L.Ed.2d 1488 to travel inter generally sured activity. The other is Likewise, here, state. I can in life and decisional in function without standards of body, equivalency find with employment of wrong intangibles in the of exer a residential alien in the competitive state’s professional responsibility. cised I can find classified civil service or to take the bar discriminatory denial of access to the examination, Hospital Memorial v. Mari compensation courts and to have copa County, 415 U.S. 94 S.Ct. wrongfully injuries caused prohibited as a (1974); 39 L.Ed.2d 306 Application of territory legislation when within its Griffiths, 413 U.S. 93 S.Ct. upon specif face the enactment encroaches year’s L.Ed.2d 910 or a residence in prohibitions ic Constitution county hospitalization or medical inquiry and that the requires the more ex county care at expense. acting judicial scrutiny initially conceived in

The issue at stake is not whether Co., due United States v. Carolene Products process in federal or state constitutional 304 U.S. 152 n. 58 S.Ct. 784 n. Law, Trial, July Fox, Century (1938). A Tort 4, A construc 82 L.Ed. 1284 liberal 78, goal— a at 87. I would add third justified, citizens is of the tion . protection you and me Administration, Region Housing Federal 488, 242, Burr, scruti- years v. 309 U.S. S.Ct. After the which strict No. 4 “ scrutiny-non- (1940). ny-invalidation minimal It is a ‘wholesome 84 L.Ed. * * * virtually were answering intervention correlations sight [government] ” to see perfect, pattern suddenly become every responsible for act for its torts’ and during an era which unsettled. After legal justification. Great done without rationality” requirement sym- the “mere Read, U.S. Ins. v. Northern Co. Life abdication, the bolized virtual 879, 47, 873, 59, 88 L.Ed. 64 S.Ct. personnel changes in a following (1944)(Frankfurter, J., dissenting) (quoting Court— noninterventionist direction—has sudden- Maitland, 263). Papers, See Collected repeated ly found occasions to intervene Casualty and v. Aetna also United States on basis of the deferential standard. 207, Co., 70 S.Ct. Surety 338 U.S. Gunther, Supreme L.Ed. 171 Court 1971 Term Evolving In Doc- —Foreword: Search of in his cita agree I Justice Stevens Changing “ A Model trine a Court: Judge Cardozo that quoting tion ‘[n]o Protection, 86 Equal a Newer Harv.L.Rev. imagined why the can be sensible reason sued, State, having to be should consented ” remedy.’ Finley paralyze the thus OUTDATED, VII. OUTWEIGHED AND — —, States, 109 S.Ct. U.S. United REINCARNATION OF UNJUSTIFIED (1989) (quoting L.Ed.2d 593 PAST MISTAKES Co., Hayes L. Const. Anderson John Supreme Justice United States Court (1926)). N.E. 243 N.Y. John Marshall wrote: guided I also to be wisdom of choose (p. the 3d vol. his Commentaries quoted Finley. Further Judge Cardozo 23), states two cases Blackstone which more, speak strongly recognition I of the operation remedy is afforded mere a validity present challenge: philosophic cases,” says, he “it law. “In all other only deprives it “The freshness of error not rule, general indisputable that long-established respect of the legal right, is a there is also where there entitled, that practice is but also counsels law, suit, legal remedy by or action at opportunity of correction be seized And that is invaded.” whenever once, state and federal laws and before vol.), he (p. of the same afterwards embody adjusted to it.” practices have been says, injuries next to such “I am consider — U.S. —, Gathers, Carolina South cognisable the courts 2207, 2218, reh’g 104 L.Ed.2d 109 S.Ct. shall, I for the law. And herein common — —, 24, 106 110 S.Ct. denied U.S. only remark, possible that all present, (Scalia, J., dissenting). L.Ed.2d 636 whatsoever, fall that did not injuries principled approach more A most] [or cognisance of either exclusive within the goals look at would brief involve ecclesiastical, military or maritime law of unintentional tort law. For the reason, are, very tribunals, with- harms, major goals. One are two there cognisance the common-law in the individuals who have compensate is to justice; for it is a settled and courts were injured accidents who been Eng- principle in the laws invariable the accident in responsible for not withheld, land, right, every when Thus, injured significant indi sense. remedy, every injury must have a forces, viduals are victims of external proper redress.” ** * compensation. they deserve of the United States govern- goal emphatically is to influence termed major The second has been here, laws, and of men. It will ment of actors—often businesses [or ap- high ways certainly that so- cease deserve government] behave —to remedy furnish no if the laws pellation, ciety desires. * * * legal right. of a violation vested A presupposes suit de- obloquy juris- If this is to be cast on the subject fendants are to the law invoked. prudence country, it of our must arise Of course it cannot be maintained unless peculiar from the character of the case. they are so. But that is not the case us, then, inquire behooves wheth- territory States, with a of the United composition in its any ingredi- er there be Territory because the itself is the foun- exempt legal ent which shall it from in- rights ordinarily tain from which flow. vestigation, injured party or exclude the Any logic dispelled vision that law is legal pursuing from redress. In this in- journey through history the forensic quiry, question presents first which spectacle case law. The is, arranged itself whether can this be misapplied unjustified legal dictum and the- with that class of cases which un- come ories demonstrates that exists description der the absque of damnum despite the fact that it historically is not injuria; injury. loss without an justified moralistically sustainable. Madison, (1 Marbury Cranch) 5 U.S. subject There is no in the law which has 137, 163-64, 2 L.Ed. 60 weight accumulated such of scholastic con- States, Langford It was v. United 11 demnation for unnumbered decades. Yet 341, 343, Otto 101 U.S. 25 L.Ed. 1010 spore virus, like a or a it refuses to die. rejected English the old notion curiosity in a democratic royalty King of the that “the can do no society is that it survives in the fashion it wrong” creating immunity. as a basis for has, Wyoming, and now in mutates to rede- easy “It is not to see proposi- how the first velop scholarship justifi- without logical any place tion can system have in our cation, except repetition a continued as if government. king We have no whom by restatement the concept initial achieves applied.” can be Id. at 343. validity unsupportable concept within the Lee, 196, 220, United States 106 U.S. itself. Characterized from the Men De- 240, 260, (1882), S.Ct. L.Ed. 171 limit- von,12 provided the menu is that somehow ed to taking unconstitutional sub nom. logic there is no harm remedy unless a Bowdoin, Malone v. 369 U.S. 82 S.Ct. exists. (1962), 8 L.Ed.2d 168 that court said: Pain, bodily damage or death as an activ- justice established, Courts of not ity only actuality exists in the adjudi- upon to decide the controverted catory system if wrongdoer, in im- as against of the citizens as each munity, state, the instrumentalities of the other, upon rights also controver- respond can be called to for fault. It is sy government; between them and the curious that against those who rail and the docket of this court is crowded state, individual, in favor of the become with controversies of the latter class. strangly silent when that individual who The extended dissent in Lee was not to be has been maimed asks lightly relinquished. Lee was followed justice. slogan Their no doubt be- Polyblank, Kawananakoa v. 205 U.S. comes, your “Ask not country what bills 526, 527, 27 S.Ct. 51 L.Ed. 834 pay you, can ask you pay what bills can where Justice Holmes asserted: your country.” A sovereign suit, exempt from The critical failure is the misunderstand-

because of conception formal or ob ing of society the essence of a free theory, logical prac solete and the but on the ground right tical individual’s legal society that there can within the authority protected unjustified that makes harm right depends. * * *government law on which which those individuals have

created and now maintain.13 The errone- King wrong. 12. Or can do no sovereign immunity of Borchard, Liability (parts Government in Tort Unquestionably, the classic and most com- 1-3), 1, 129, Borchard, (1924); 34 Yale L.J. prehensive subject intrinsic examination of the ignoble justi- security, cial compensation ous historical basis and moral worker’s given unemployment compensation, fication of immunities not men- body dependent children, guarantees tion parcel of the of law heaviest aid to subject disapproval opportunity, and of for educational as well criticism as equal jurisprudence. opportunities rights within modern confined Described at and of abnormality as an or it is all vote. absurdity, Immunity beyond best citizens to that ministerial, commonly recognized necessary as an discretionary, more anachron- society. legislative, modern ism for functions is more past than a reincarnation of mistakes—now then, theory, As a result of feudal we judicial. both and present- have the for much of the basis day theory irresponsibility of of the VIII. AVAILABLE PRECEDENT theory, holding This State. FOR COMPARISON King wrong; can do no that he is irre- comprehensive persuades A review me man; sponsible before the law of that he in constitutional accommodation and sued; right cannot be but that of government democratic idealism of the exists, supplication bears a close resem- individual, Wyoming improvi- worth of the contemporary blance certain ideas dently precipitously and moves backwards presently. will be discussed justification. and out of constitutional justify explain In order to and the im- portant changes Highway Stone v. Arizona that resulted from the Commis- sion, 93 Ariz. system, downfall of the feudal with the Court, Supreme abolishing Arizona

waning power great of the nobles and governmental immunity, first initiated in power sovereign, the increased of the County Hernandez v. County, Yuma ingenious developed doctrines were of (1962),quot- 91 Ariz. theorists, political theologians, and ed: judges. The chief of these defined sover-

eignty, personified requires “It slight appreciation the Crown as the but a of state, applied principle and if that the facts to realize that the individual King wrong. can do no citizen is left to bear all risk almost defective, negligent, a perverse or er- Oatman, Blachly Approaches and to Gov- administration of the roneous state’s Compara- Liability ernmental in Tort: A functions, unjust will burden become Contemp.Probs. Study, tive 9 Law and govern- frequent graver and more as (1942). surely is established for expanded ment’s activities are and be- immunity, and sover- both more come diversified.” eign, that the head waters of its utilization inertia, logic considering and retention is not See also in a standard of re —it courts, greed Kenyon political philosophy. and For a wide view for access to the (1984). reasons, Hammer, variety of remnants 142 Ariz. 688 P.2d 961 its residual Annotation, Municipal Immunity and contrails outlast modern theories of Rule of Liability responsibility social which have so- From For Acts in invoked Performance 4-6), concept Responsibility (parts application at best de- in Tort feudalistic Govemmental 1, 757, Borchard, (1926-1927); underpinnings is statehood. The Yale L.J. nied before 7), governmental autocracy Responsibility (part in Tort thesis of federated Governmental Borchard, perceived (1928); central theme that the welfare Colum.L.Rev. Theo- majority justifies (part system the sacrifice of the Responsibility ries 8), in Tort Governmental unlucky among membership of the 28 Colum.L.Rev. 734 See also fault, unjustified injury thoroughly from fail- definitive and and care- who sustain researched fully neglect negligence analyzed Wyo- of that central ure and review as individualized crossing authority. Curiously philosophic ming Minge, supra, & L.Rev. Land Water VII autocracy suprema- Minge, Immunity thesis of centralized 229 and Damage From Governmental II, wrong, cy responsibility for to be isolated from Actions in VII Land —Part standard that or death is a maintained & Water L.Rev. 617 A course of edu- bench, protection property constitutional legislator retains cation for bar would not life, validity, unhealthy might recognition protection limb and health do advance the only validity generic not. that the Applicable Governmental Functions as recovery denial of the Injury in Case Personal or Death today’s society. As- Nuisance, 1196, 1196 75 A.L.R. Result suming that sovereign there was immuni- a classic observation for ty Kings England, our fore- aspects sovereign sociological immunity: Revolutionary bears won the War to rid The whole doctrine im- themselves sovereign preroga- of such munity upon for tort rests tives. * * * a rotten foundation. It is almost incredi- sovereign doctrines of [T]he age compara- in this ble that modern governmental immunity have been made sociological enlightenment, tive and in a and, the courts when appears republic, the sup- medieval absolutism wrong these rules were when made and maxim, posed implicit be “the wrong currently, the courts should abol- King wrong,” exempt can do no should ish the rule. government the various branches of the In Washington, sovereign immunity * * torts, for their *. generally repealed by enlightened legis- Supreme agreed: The New Mexico Court lature. See County, Paulson v. Pierce ample We concede that there was author- 645, (1983), Wash.2d 664 P.2d 1202 even ity predecessors which influenced our in though the court only applied thereafter a adopting upholding the doctrine of minimum scrutiny test for classification. injustice. there is better overturn it. We continuance is sovereign immunity. ^[*] ‘ “ ‘It is fundamental to our common n causing great degree ^[*] simply reasoned We also n a conclude that its authority ^[*] say n that See however Hunter v. North to School, (1972): quoting on American Constitutional History 18 (1975) assessing invalidity 85 Wash.2d from L. of a non-claims statute in Levy, Judgments: equal protection 810, 539 P.2d Mason 845, Essays terms High “The system

law that one Constitution great pow- seek redress deals with ers, every wrong. many undefined, substantial “The them they decentralized, best statement of the rule separated is that a and distrib- wrongdoer uted, responsible balanced, for the natu checked and limited and proximate ral consequences prohibited. time, of his At the same most nota- State, misconduct....”’ bly through Battalla v. Rights the Bill of and the 237, 240, 34, 10 N.Y.2d 219 N.Y.S.2d great amendments, Reconstruction ’ 36, 729, (1961).” 176 N.E.2d requires Constitution game that the shall played freely fairly, judi- with the State, Hicks v. N.M. 544 P.2d ciary umpire. great as the ‘The ideals of (1975) (quoting 1156-57 Niederman v. liberty equality,’ wrote Justice Car- 401, 403, Brodsky, 436 Pa. 261 A.2d dozo, preserved against ‘are (1970)). assaults opportunism, expediency of the apparent that some retreat did occur hour, passing the erosion of small en- by passage New Mexico of the closed- croachments, the scorn and derision of act, end state tort claims but even that patience those general who have no regression justify could not serve to principles, by enshrining them consti- doubly regressive jus- effect ulcerated onto tutions, consecrating to the task of injuries tice for the now whenever inflicted ” protection body their of defenders.’ by this Albuquerque state. v. Garcia Ed., Public Schools N.M. Bd. The Idaho singularly courts have been 622 P.2d 699 The Colorado court in forthright in denunciation and decision on Evans, (footnotes 482 P.2d at 969-70 omit- State, the immunities. In Smith 93 Ida- ted) related: ho 473 P.2d (quoting The monarchical philosophies City Omaha, to Brown v. invented 183 Neb. problems solve the marital Henry (1968)), VIII N.W.2d 805 the immunities “ are not justification sufficient judicially for the except were excised ‘what or a valid interest in might termed “ministerial discretion- has However, legis- pay- ary protecting treasury. nor on the exercise of functions” qua- quasi-legislative judgments simply ment of tort cost lative or Holytz City functions. See is no si-judicial doing business. There evidence Milwaukee, Wis.2d 115 N.W.2d payment in the record that the such 618] [17 ” supra.’ impair ability to claims would the State’s governmental entity function as a or cre- Johnson, In 104 Idaho Leliefeld fact, ate financial crisis. the State the court used the Montana in af- does have an interest tier of “means-focus” standard —the middle fording compensation fair and reasonable equal protection their three standards —for negligence to citizens victimized analysis. “means This test examines the Therefore, State. strict scru- legislation specified and searches for tiny implication test mandated relation' between the a ‘fair and substantial * * * been legitimate fundamental means selected and the prohibiting and the re- statute legislation.” purpose of the Id. 659 satisfied covery damage for noneconomic is uncon- Technically, legislature the Idaho stitutional under the Montana State Con- government sovereign immu- abolished stitution. judicially nity in advance of the effective Smith, recognize that limit on the in We some date scheduled established 937, by comport with the so the State’s P.2d at that abolition equal mandatory guarantees pro- a constitutional legislature in advance of date However, by judiciary. a limitation affixed the tection. such can- not discriminate between those who suf- overlay philosophic of citi- The pain quality and those fer and loss life protection against zens the torts of the for primarily economically. suffer who pursued comprehensive in state is detail distinguishing duty that court from discre- principal examinations within Bloom, 211, Sterling tion. Idaho region advancing development of 723 P.2d 755 One of members responsibility law of central soci- Hall, Sovereign of that court in Im- noted negli- its ety people for its harm to Re-Emergence munity and the Gov- is gence provided or tortious misconduct ernmental/Proprietary Distinction: A has Kansas and California. Kansas since in Liabili- Setback Idaho’s Governmental by legislative to an air- regressed reaction 197, (1984): Law, 20 ty Idaho L.Rev. in killed col- plane which crash Colorado case, briefing Thus, team. In in this lege football when acts arbi- rely heavily dealings majority trarily unfairly in its with the the state and now in on the Kansas disaster defined real people, the basic foundations of the de- reject the humanisti- mocracy illusionary To extent a terms are weakened. adaptations of per- cally directed California. government wrongs citizens and Kansas, only part entire wrong go redress it Even mits that to without story adaptation is of citations govern. told part its license to loses used. Comment, Lately King” “The See also Right: Do Idaho Governmen- Kansas,

Can Little jurisdictions, like most Immunity tal in Wake history Doctrine litigation, troubled Bloom, 24 Idaho L.Rev. 291 Sterling writing, impressive is in quality in of case (1987-88). difference, deeply in logic, acrimonious closely morality frequent in directed recog- scrutiny particularized Strict law of Kan- decisions. modern divided nition of the effect of the constitutional in the case of sas commenced Carroll every guarantees remedy of a speedy 21, Kittle, 841, 457 P.2d 203 Kan. found injury of the Montana constitution (1969): State, full enforcement White v. majority (1983) (em- After careful consideration

Mont. 661 P.2d it added): opinion now of the of the court is phasis process appropriate for this court to abolish due constitutional test failures Bell, Manzanares v. negligence, 214 Kan. governmental agen- the state or its when P.2d 1291 activities, engaged proprietary cies are litigation Then came the for the 1970’s failure legislature’s in the absence of the university virtue of the crash of a char- adopt corrective measures. airplane carrying tered the Wichita State However, abolishing governmental in Brown v. football team. The court suggested, immunity to the extent we University, Wichita State 217 Kan. recog- that we clearly want it understood (1975), opinion vacated 540 P.2d 81-83 legislature to authority nize the part appeal 219 Kan. including that control the entire field dismissed sub nom. Bruce v. Wichita opinion. part by this We would covered University, 429 U.S. 97 S.Ct. is in a much suggest added) (emphasis 50 L.Ed.2d 67 said: position than this court to restrict better present law, regard Under Kansas it application doctrine because given injury facts and cir- supplement prop- the restriction with can surrounding cumstances events legislation provisions in the form of er which caused the type is the —it insurance, etc., stated in 61 Colum- governmental agency activity and the Review, Lawmaking, p. bia Law Judicial engaged that determines 889: aggrieved party whether the will find the however, “There is a limitation on open doors of the court or closed. Such judicial making inherent in the law na- unreal, a classification is forced and and ture of the function. Courts greater imposed burdens on some upon can and indeed are called to ad- than others of the same desert. findWe just rights in and liabilities accordance the classification contained Kan- [the changing public policy. with canons of only “baffling,” sas are not statutes] develop they But because the law on a arbitrary, discriminatory and unreason- case-by-case they can not as can basis able. legislature, undertake the estab- institution, legal

lishment of a new ‘an The doctrine of immuni- procedure investigation elaborate ty is an historical anachronism which eventuating consideration public policy manifests an inefficient particular approval of a form of words injustice upon everyone works concerned. ” as law.’ thereto, The exceptions doctrine and the operate illogical in such an manner as to changed by legislative reap- First to be inequality. Liability result serious is Carroll, proachment which followed negligent the rule for or tortious con- Neely Hospital v. St. Francis & School of duct, exception. But Inc., Nursing, 192 Kan. 391 P.2d 155 when the tortfeasor is a (1964), non-profit where hos- agency, liability, immunized from in- pitals rejected by had when created been jured person forego right must his unconstitutionally statute as declared dis- specific excep- redress unless within a Carroll criminatory. was then followed Equality tion. is not achieved artifi- Turnpike Woodsv. Authority, Kansas exceptions indiscriminately cial which (1970), Kan. provid- 472 P.2d 219 grant injured persons some recourse in ed protecting turnpike au- arbitrarily deny the courts and such re- thority against negligently tort claims for (Winters Myers, lief to others. personal inflicted injuries. con- Inverse 1033.) operative Kan. 140 P. The sup- demnation from the removal of lateral port arbitrary was not effect of such distinctions are similarly from liabili- shielded ty incompatible when negligently by the state. the constitutional safe- done Commission, Sanders v. Highway guards established both the federal Kan. Accordingly, P.2d 981 No and Kansas Constitutions. fault equal protection insurance met we hold Kansas are uncon- [the statutes] statutory utilization immunity, but equal tal and void as denial stitutional providing invidious discrimination. the Four- the law under protection of States United my teenth Amendment majority cites cases 2 of the 1 and good Sections Constitution none which remain research reveals Rights. Leg Kansas Bill authority proposition that jective sufficient to standard convenience weigh injuries Hospital appellants access to sated for nience is Rptr. the state. We do not subscribe an individual ^[******] suffered. individual’s Dist., completely actual Convenience is a pervasive which to 55 Cal.2d damages sustained and (Muskopf 457.) totally unacceptable as a balance to the belief courts. should not out To hold conve the interest to be legislative ob deprive the the rights Corning compen Conve Cal. Study Brown, quoting King trine Court some liability in tort. That such action N.E.2d 573. islature statutorily grant or Clyde Park Can stated: rationality 547 P.2d at the United States Claims, 22 Admin.L.Rev. Do No possesses subject Sherry, Sovereign Wrong: Dist., 32 Ill.2d illustrated unlimited 1034. The deny governmental Immunity A Myth requirement Comparative by Harvey New power to That author, York Doc- legislative objec permissible nience is doctrine’s survival is but ... a] “[The tive, govern insulate the spectre sufficient to by the of mind conditioned state negligence, engage is to ment from bankrupt relinquishment will reasoning, logic, incredulous void sovereign governmental pa- and result very principles which undermines theory may well have ralysis. Such was, upon which this nation founded. justifiable in colonial times. But been today agreement that is universal there rehearing in order Brown I lasted far usefulness immunity has outlived its post-1970 the effect of the to consider past is a relic of the not discredited state which crash session the soci- with the needs civilized consonant that directed to assure families was ety.” players football would not be deceased government. compensated by state Brown Brown, analyzed in P.2d at 1037. And University, Kan. v. Wichita State response that: 1015, 1027, appeal P.2d dismissed sub necessity protecting state The University, v. Wichita State nom. Bruce treasury justification as rational fails L.Ed.2d 67 U.S. S.Ct. persons discriminating those between (Brown II) (emphasis (1976) original), classes cre- fall within the different who im to recreate validated the statute which Kansas ated statutes]. [the holding: munity in justify- as cited The second “interest” suspect In the of a classification absence discriminatory classifications ing the right, a of a fundamental or a violation say To that equally indefensible. not be statutory discrimination should operate to be able government needs reasonably aside if state set offacts legal ac- unhampered the threat justify it. conceived be should not intimates that the state tions majority found justification, injured In that fact it has bothered be protected: important three favorable interests has more people because it (1) (2) money, avoid investment save things do. (3) legal proceedings, employee time ‘of, by government and for A “... high from risk activ- protection of the state strength people’ derives ities. not irre- being and reasonable and just dealings peo- II, sponsible in its which was The dissent Brown submit, justification ‘To I, ple ... majority recognized that in Brown gove rule, immunity is neces- that the issue was not the doctrine rnmen of * * * proper functioning statute], sary appel- Kansas which [The deny lee contends recovery the obvi- would [government], propound is to turnpike cannot motorists be constitu- agency ous contradiction tionally group valid as to that view under protect society is formed to legislation other specifically which itself, pro- active obligation, when ” grants recovery to all other society.’ member tect an individual motorists. Blades Comment on Governmen- [A Kansas, Immunity in following tal Tort The rule of Harvey Flax as [(1968)]. District, Clyde Kan.L.Rev. 267-68 Park 32 Ill.2d 265] constitutionality N.E.2d 573 denied legal say To that the threat of actions by place. based classification This intolerably hamper government will ac- course of could Kansas cases not then be alone, say government tivities is to properly recognizing concluded without institutions, proper- among all our cannot Farley Engelken, Kan. 740 P.2d if ly responsibility it shoulders function statutorily attending a created for its actions. panel which medical review was declared Id. at 1038. unconstitutional. not alone that Far applying critique a similar of inval- After was a ley principle authority on our suc idity “high justification,” risk to a Chief ceeding Hoem, decision in Justice concluded: Fatzer the case served as a foundation for the test But all three “interests” fail reason- equal protection review under the re justifications making able distinc- quirement intrinsically involved in our later classes, tion between the created succeeding conclusions in the medical re statute for even more basic reason: panel unconstitutionality view conclusion. arguments supporting discrimination The Kansas court observed that “[a]s apply equally favor of state well to illustrates, above review the level of scruti other entities. If the state ny applied often determines the con treasury protection, why needs do the stitutionality Farley, of the statute.” lesser units of treasuries of at 1063. A heightened scrutiny re even need it more? for the view undertaken access to the presented. court foundational issues Id. at 1039. conclusion was that the Kansas Bill of operational difference Kansas Rights provided persons that all through II Brown was that the recreated injuries person, reputation suffered in immunity did not include historical areas remedy property shall have the due local government, units justice course law and administered present as is the Consequently, case here. delay. without Our court then followed Kansas on a broadly pos- stands different analysis heightened that with the similar ture Wyoming. from scrutiny Hoem, in 780 756 P.2d for determi appeal We this have in an even more that the nation medical review invalidity exacerbated discrimination by panel was In also unconstitutional. some place negligent where the act occurs. In present application reasoned of stare deci- Turnpike Authority, Flax v. Kansas 226 sis, I observe that and Farley Flax should 446, 1, (1979), Kan. 451 the agency 596 P.2d require also decide this case to a similar unconstitutionally relearned it was that ex- Chapter result for Consistently for the by immunity liability: cluded statute, malpractice Kansas Kansas Mal To paraphrase Carroll practice Bell, [457 21]: Victims Coalition v. 243 state, why 333, difficult see coun- (1988), 757 cap Kan. P.2d 251 ties, townships performing pre- and cities of recovery limitation malprac on medical cisely e.g., the same the mainte- tice claims failed the constitutional tests of acts — nance of a thoroughfare process to due by jury. and trial —should roadways liable for defective and the recognizing invalidity, that court further turnpike Kansas authority not. should observed that after abolition a modifica

1345 persuasion and the humanistic The moral remedy, there was law of a common tion Muskopf led numerous other states logic remedy provided. The adequate substitute follow, including finally this state. included. quo was not required quid pro gov- of such Only vestigial remains Note, Damages Caps on and Statutory survived; immunity its have ernmental Trial, 54 Mo.L.Rev. 471 Right Jury long been foreshadowed. requiem has law, compare general (1989). For Missouri gov- years process of erosion of For Comment, Immunity: A Sovereign ly, gone on unabat- ernmental Applying Mis Current Framework for Legislature has contributed ed. The Law, 51 Mo.L.Rev. 535 souri courts, by mightily to that erosion. The jurisprudence moved faster California extension, and have removed distinction emphatically. The continued more and Thus, in much of the force the rule. rec case which philosophically foundational holding governmen- that the doctrine of invalidity of the immuni ognized the social tal for torts which its Traynor’s in seminal comes ties Justice agents place has no in our law are liable Hospital Muskopf Corning in opinion startling past break with the we make no 211, 11 District, step Cal.Rptr. merely take final 55 Cal.2d an carries to its conclusion established recognized in The author P.2d 457 and trend. divergent court that the decision gov development paths Cal.Rptr. had led to at 359 P.2d at 463. Our Id. Muskopf persuasion utilization of or local immunities as contrasted

ernmental Oroz, justified 575 P.2d 1155 evaluation sovereign immunity, and that “[t]he logical its content cannot be that moral for tort rule reviewing disregarded properly basis, anachronism, rational without present actions of court for what inertia,” only by the id. has existed force today. good law should (citing at Cal.Rptr. at 359 P.2d Angeles Superior County Los Borchard, Responsibility Governmental County, Cal.2d Angeles Los Court of 229; Tort, L.J. Casner 34 Yale Cal.Rptr. 402 P.2d 868 Fuller, Municipal Liability Tort persuasion Muskopf forward the carries 437; Rep Operation, Harv.L.Rev. equal protection by testing of in current ko, Municipal Tort Lia Commentary scrutiny review stan of the reasoned use 214), bility, Contemp.Probs. Law Priest, Serrano v. dard. See likewise judicially abolished other has been “[i]t Cal.Rptr. Cal.3d Cal.Rptr. Muskopf, jurisdictions.” monumentally im which became 92, 359 P.2d at 460. way led the portant case on education and developments Wyoming He concluded that Was for later County Dist. No. One v. School hakie [njone of the reasons for continuance Herschler, (Wyo.), de 606 P.2d 310 cert. analysis. No can withstand one defends Springs County nom. Hot sub nied immunity. fact, In it total v. Number 1 Washakie District School It does not exist. has become riddled 1, County * * * District Number 449 School exceptions, legislative both 824, 86, (1980). S.Ct. 66 L.Ed.2d 28 U.S. 101 * * *, exceptions the Merlo, in v. 8 The California court Brown operate illogically so as to cause serious Cal.Rptr. 506 P.2d 212 106 Cal.3d inequality. injured by Some who (1973), Wyoming Nehring v. like Rus recover, governmental agencies can oth- sell, (Wyo.1978) years five 582 P.2d 67 la injured attending one while ers cannot: ter, uncon guest declared the statute be community public park may theater in a vice of Overinclusion was the stitutional. * * *, injured in a chil- recover but one Brown, 106 statute to be observed. * * *. playground may not dren’s at 227. See Cal.Rptr. at tenBroek, Cal.Rptr. Equal 11 359 P.2d at 460 Id. Protec Tussman Laws, (citations omitted). Cal.L.Rev. 351-52 tion of Governmental (1949) Alstyne, Subject and Van to the limitations above an- Liability: Policy Prospec A Public nounced, Tort merely we here hold that when tus, direct, personal Erratic individual suffers a 10 UCLA L.Rev. injury proximately operation negli- of statute denied caused and fortuitous gence equal protection, municipal in of employee of while act- requirements Harvey, ing scope employment, within his citation of 203 N.E.2d 573 of cluding injured place individual entitled to rejection of a classification as re- and its dress for the wrong support To discretionary. done. constitutionally The court we the rule hearken Brown, original back to our (emphasis 216-17 506 P.2d at precedent, City Tallahassee v. Florida original) said: of Fortune, supra Fla. 19 Our [3 reasonable, ]. be A “must classification judicial forbears there held that where an arbitrary, upon and must rest special personal individual suffers a dam- ground having some of difference fair age not common to community object and substantial relation of proximately resulting from negli- legislation, persons so all that sim- gence municipal corporation acting of shall be ilarly circumstanced treated through employees, its such individual is alike.” gener- entitled to redress. We think this American & v. See also Bank Trust Co. al rule was sound when it announced Community Hospital Los Gatos-Sara in 1850 and it should be reestablished as Inc., toga, Cal.App.3d 163 Cal. law Florida. Within the frame- Rptr. my persuasion work above announced limitations that the authorities demonstrate rea that present opinion. this is the rule of our rationality as a test cannot ful sonable vein, point we therefore out that filled the determinant where accident disregarding instead of the rule of stare place. decisis, merely we now restore the origi- judiciary early progression The Florida concepts nal jurisprudence of our to a justice problem solved the position priority in order to eradicate in part by in Hargrove at least recision the deviations that have in our view de- Beach, Town Cocoa So.2d justice tracted from the of the initial (Fla. 1957): rule. Assuming that the rule had (footnote omitted). Id. at 133-34 See also inception case, in the Men of Devon Thompson City Jacksonville, legal agree and most historians (Fla.App.1961), So.2d 105 cert. denied did, it should be noted this case was (Fla.1962), So.2d 530 limited later to ex years decided twelve some after clude municipal intentional torts of employ Independence. our Declaration of Be ees. may, feeling that as it our own is that Alabama likewise recognized the incon the courts should be alive the demands gruity discriminatory justice of a denial of justice. necessity We can see no Hospital Chandler v. Authority City insisting action in a matter Huntsville, (Ala.1986) So.2d originated. courts themselves and Peddycoart City Birmingham, problem in Florida has become (Ala.1978) judicial So.2d 808 even confusing more because of an effort ly unacceptable application under the. of a prune pare rule of immunity likewise, See rational basis standard. uproot bodily rather than to it lay and it Jackson Demag Corp., v. Mannesmann as we aside should other archaic and (Ala.1983), 435 So.2d 725 court access. See concept. pruning ap- outmoded This Sweeney State, also v. 768 S.W.2d 253 proach produced strange numerous (Tenn.1989), dangerous highway with no incongruous and results. City Donovan, tice and Dallas v. 768 Excluding legislative judicial func- S.W.2d (Tex.App.1989), missing 905 stop might tion that be exercised with signs immuni- and actual notice determinants of ty, that court held: liability. Case law in Mis

1347 Pitts, 244 429 Parish v. Ark. for instant support affords scant souri High v. Jones court in abolished The S.W.2d 45 and decision. Commission, n. 1 way 557 S.W.2d involving judgment or except conduct for comprehensive and well-rea (Mo.1977), aas judicial or activi discretion or immu opinion, abrogated sovereign soned legislature by reinstitution The acted ties. recognized liability and nity tort structure was en general twenty-nine states that footnote Bluff, City v. Devalls Hardin acted. had, by judicial deci District of Columbia Sulli (1974); 256 Ark. S.W.2d degree, done the same.14 to some sion County, v. 247 Ark. van Pulaski duty is that That court reflected “[o]ur Kentucky, In a bill for a S.W.2d 94 claims which come before us respond recovery capped total principles consistent with the in a manner justified in Com. v. single incident was constitution, statutes, and embedded in our Daniel, Ky. 98 S.W.2d 897 precedents. requires, This on rare judicial special to a bill is A converse result as occasions, reject today, it does that we McCoun, v. Com. found in 313 S.W.2d 585 Id. citing earlier rule.” at As an (Ky.1958), special bill was where a invali nature of contem earlier discussion general en dated since a statute had been Jones, judicial processes, porary legislature had enacted a acted. Judges Why Day, at 227 n. cites S.W.2d University Ken Law, See claims act code. Make 26 Case W.L.Rev. 563 Must Cases, tucky Guynn, Dworkin, (Ky.1963). Hard (1976); 88 Harv.L. 372 S.W.2d 414 Hart, in the Law (1975); Rev. City of Rosedale, Pruett So.2d 1776-1976, Perspective Philosophy: (Miss.1982), supreme court abol (1976). Subsequent au N.Y.U.L.Rev. 538 recogniz immunity perspectively by ished Reorga Winston thority suggested is judi ing creation and beneficial R-2, County, School Dist. Lawrence nized Mississippi then one abrogation. cial was Miller, Mo., (Mo.1982) after 636 S.W.2d 324 states without some action. six adopted state had tort now, good many years state af- For a express was claim code. Where principle has decided that ter state arising from “as to tort claims ly waived King wrong can do operation motor vehicles [state] or from proper principle that should receive a public entity’s legal not a of a the condition place dis times. ty,” application law did not create modern blanket by Chap criminatory here affixed inequi- attribute examples of the many There are original). Id. at (emphasis ter 89. principle. Under ties in this involved times, disadvantageous modern recognized: That court public and members of the members both taken in the can be selection Care layman, sovereign state. For of the persons op- supervision of authorized example would be where appropriate an plans and detailed erate motor vehicles on business officer while developed Similar a conservation to control their use. persons as to uninsured may operating

care exercised who an for the state property, vehicle, trying maintain the entities’ process of in the state dangerous condi- notice of a and once on violator, negli- apprehend a and for some tion, action be undertaken remedial reason, gent control of the state lost to correct it. person, injures an innocent vehicle Id. the state injured person and both the All the deep employee are in trouble. similarly considered

The Arkansas court the sover- say, to do is “we are municipalities state has immunity for origination thesis of im thoughtful persuasion anticipatory cerned that 14. decisional, munity examined the reasons developments presaged dissent which later dispositively adaptation and elimi Finch in advanced for the consideration Justice found in justification. remained on He Independence, nated retention Dist. 521 O’Dell v. School of 865, years required to find his (Mo.), the for two cert. denied U.S. 96 court S.W.2d 403 423 Jones, 125, (1975,). 225. adopted in 557 S.W.2d He first dis thesis S.Ct. 46 L.Ed.2d 94 1348 v. (1961); Highway Stone Arizona you do have a for

eign king and not claim Comm., through your (1963), no fault of injuries received 93 Ariz. 384 P.2d 107 381 Furthermore, employ- state yours.” by and in others statutes which consent subject personal ee is to a suit and the provided ed suit in courts or for great a have chance entire matter would legisla relief before an administrative or ruining both persons, of two the state body. tive employee and the innocent member Department v. Willis Conservation public. Development, and Economic 534, N.J. 55 legislature by Id. The reacted a 34, (1970). consequent 264 A.2d 36 In ac- partial and remission general moratorium comply theory, immunity tion to with liability with where insurance was obtained expression eliminated of “an without ulti- 1, July end the moratorium to on or after Co., mate doctrine.” See Frank Briscoe 1, and the state 1987 as October Rutgers University Inc. v. the State v. subdivisions. See McFadden political College Dentistry Medicine and New State, (Miss.1989); Region 542 So.2d 871 493, Jersey, N.J.Super. 327 A.2d 687 VII, Retardation Mental Health-Mental (1974). Special legislation challenged the Isaac, (Miss.1988) v. So.2d 1013 Center equal Connecticut court consideration Waterway v. and Strait Pat Harrison protection voiding Sunday constraints a Dist., 523 So.2d 36 (Miss.1988). law, Caldor’s, Bedding Inc. v. closing blue recognized The Island court Rhode Barn, Inc., 304, 177 Conn. 417 A.2d 343 municipal corpora immunization of “[t]he (1979), then a rejecting discriminatory liability tions from for tortious conduct place in Ryszkiewicz City v. New law engaged their officers or servants Britain, 589, 193 Conn. 479 A.2d 793 during performance of a (1984), recovery limited for the torts repudiated repeatedly function has been city. apply of that did The limitation during the last decade.” Becker v. Beau municipalities other in citing of the state doin, 562, 896, (1970). 106 R.I. 261 A.2d approval Peddycoart, 354 So.2d 808 immunity then That court held that Flax, place 596 P.2d 446. The classifi- abrogated per- conferred the courts was differentiating cation as towns could not be spectively. Jersey Supreme The New constitutionally justified.15 similarly Court observed: Supreme Court Indiana con- plainly unjust It is to refuse relief to immunity sidered its standard in state persons injured wrongful by the conduct case, Perkins v. contaminated beach No one seems to defend State. State, Ind. 251 N.E.2d 32-33 that refusal as has fair. There been (1969): steady away immunity. movement plain, unequivocal There jurisdictions, In statement change some Mus by judicial decision, achieved the Constitution that been State of District, kopf Corning Hospital Indiana shall be immune suits Cal.Rptr. Cal.2d imposing 359 P.2d 457 damages; only Rochester, Hampshire New court had more trouble. 119 N.H. 406 A.2d 704 A Justices, Opinion adopted inquiry 101 N.H. rational basis was the test (1957), immunity special recovery cap A.2d 279 for an indi the limitation on as a dollar as a authority airport statutory excepted. Cargill's vidual was held to be constitu limit In dissent in Estate, Following City (emphasis original), tional. thereafter Merrill v. 406 A.2d at 709 Manchester, (1974), Douglas legisla 332 A.2d N.H. Justice reaffirmed that “[t]he judicially saying conferred cities ture seems to be our citizens that it abrogated except persons towns was prop values their less than it does their planning erty functions patent and executive and He character.” found a violation remedy activities in the injuries nature exercised discretion. of denied constitutional sovereign person, That did property not include the Surprisingly or character. thesis, absolution Sousa state itself. then in a reversal in a court State, case, Maurer, 115 N.H. 341 A.2d 282 Carson N.H. 424 A.2d Merrill, Responding had 825 litigative invalidated as unconstitutional adopted provision a tort claims which was held comprehensive constraints of a medi Cargill's City practice constitutional in Estate v. cal act. in or business engages industrial the above state might be drawn from inference purely enterprises distinguished section it oc- from we read this section. As activities, liability the framers of Consti- tort at curs to us that ” at common law Perkins, tution assumed that at 34-35. 251 N.E.2d taches.’ passed for the benefit We rized that ple of common law which tion State was immune ple of stare decisis ity ties. and hence could not be principles decades considerable tive to have mon ciple of consideration with reference confine our society to such velopment: this statement with reference changes The common law Circumstances ing history at the will become yet been absorbed always approaching, and ing, Oliver Wendell “ * * * when it not law. early n £ prohibition, been within the last Law, no ancient common law Law”, warranted some of the rather law active and However, the extent new held consistency. sovereign and charitable immuni- dealing private frozen mold sovereign immunity. forms Blackstone’s Commentaries always found in the ^[*] The truth is that principles Gavit’s meet its ceases to “The thinking pp. acts the common here consistent entirely 36, 37, but ^[*] it King can do no Holmes, in a discussion retains old ones other, Ed., p. 111. times and from suit changes. needs. rather with from life at one of ancient not with constitu- It is forever in grow.” bygone ages may should not of some individual. modify such liabil- dynamic ^[*] common sued special see revaluation sloughed which have has two or three fit, providing in his “Com- case. There never reach- law of in any Ed., ^[*] and autho- growth acts were ideas, to its de- and thus law England a princi- roots wrong” off. always makes law princi- adopt- today court strict ^[*] prin- rela- end, in parable Inc., mental actions and functions. See where the medical That court then injured tions for stitutionally ever, national was authored for Illinois law Molitor Kaneland ment tort land Eng.Rep. denied 362 U.S. the dissatisfaction 18 Ill.2d Molitor, ed basis of As was stated One of the wrong,’ should plicit dation. medieval absolutism this modern branches cal liability for tort rests burden who suffers doctrine ty for their wrongful acts of the which the [CJourts abolish that “divine City enlightenment, imposed upon Johnson Revolutionary party’s in the question of trend (1943)). Ind. recovery and diminution of the Santa Community law It have immunity, justified theory N.E.2d at leading damage is 163 N.E.2d age maxim, the court had been overruled recognizing for Illinois and right torts, v. St. left almost incredible that overlooked the fact that Fe, malpractice act was con government from with continuation: 404 N.E.2d 585 injury one exempt is based. immunity for unanswered comparative 47 N.M. cases War in ‘the continued Men of resulting supposed to be im S.Ct. upon rotten foun Vincent Unit Dist. No. jury. court, surveyed providing limita single (quoting King that the assert addressing , in the various republic, * Devon, 100 “The recognized the entire kings” on can do fought Hospital, 4 L.Ed.2d individual from sociologi the com govern govern Barker (1980), should liabili whole * * * how from Eng cert. provid- recognized that The Illinois court quoting the Califor That court then held ing responsibility negligence, abol- People Superior nia case Court of Francisco, immunity, would secure the ishing City County San “ 754, 178 increasing safety: ‘[wjhere good by P.2d 1 Cal.2d 1350 municipal principal “A cor- Ohio a in immuni

As Dean Harno said: became state and virile today an active poration ty litigation substantively pursued is as at an inflicting much State, capable of harm. creature Raudabaugh in 96 Ohio early date responsibility civil should be co-exten- Its (1917). 118 N.E. St. 102 A constitu looms municipal corporation sive. fairly sen tional clause similar to the last “ law, up definitely emphatically in our ‘Suits Wyo. tence of Const. art. § more, is it can and does commit and what state, brought against in such may be so, wrongs. being it must assume This manner, and in such be courts as ” it occu- responsibilities position of the law,’ provided in de was considered (Harno, Immunity society.” in Tort pies termining provision whether or not Ill.L.Q. 28, 4 Municipal Corporations, Raudabaugh, self-executing in character. 42.) at art. (quoting 118 N.E. Ohio Const. reversing sum- Id. 163 N.E.2d at 95-96. In 16) (emphasis original). case held § court, trial mary denial of relief provision “that the of the Ohio Constitution * * * rule of school tribunal concluded “that the self-executing, legisla is and that unjust, unsup- immunity tort is district authority by required as a tive statute is reason, by any and has no ported valid prerequisite bringing to the an action Id. society.” place day rightful modern Id. at against state in its own courts.” 96. Despite recognition 103. a a “wide park a similar resolution followed for A criticism,” spread restated decision was Harvey, 203 N.E.2d immunity in district State, Krause v. the case of An could not irrational classification (1972). 285 N.E.2d A Ohio St.2d denial justified for constitutional of the general elimination of for the remedy injury negligently inflicted. for operation of motor vehicles as strained Many frequently of the activities that exception duty operation po of active liability rise to common to give tort lice and firemen was validated for constitu operation of all units. The Village tional classification Nanna v. example. automobiles is an obvious McArthur, App.2d 22, 44 Ohio 335 N.E.2d injured par- perspective From the of the (1974). ty, point ability or from the of view Indiana, Contrary provisions of the negligent op- insure practice Ohio medical act were invalidated eration, why there one is no reason who improper classification on a constitu injured by park is truck should district “[tjhere perspective. tional The court held recovery, barred from while one who satisfactory separate is no reason for this injured by village city is truck is unequal treatment” between medical recover, injured by allowed to and one litigation pro malpractice and other tort school district truck is allowed recover ceedings. Graley Satayatham, prescribed within a limit. And to (Ohio 1976). Furthermore, N.E.2d permitted extent recovery “[ejven remaining basis, within the area arbitrary special denied on an professions, special it is privilege granted notable that in violation of section given profes 22 of article consideration IV. medical given sion these statutes is not to law Furthermore, Id. improper pat at 576. yers subject or dentists or others who are tern of agency discrimination based Id. at 837. Hav malpractice suits.” In responsibility logically comparable Homes, Portage Inc., erlack v. 2 Ohio St.3d place-defined-patehwork Chap effect of (1982), 442 N.E.2d 749 held the court Sul ter See the effect of insurance applied abolition Dist., that the livan Midlothian Park 51 Ill.2d corporations municipal abrogated the also See also N.E.2d 659 Baum, Tort Liability Local Govern doctrine ments and Their Employees: An Intro Marrek v. Cleveland park districts. Act, Com’rs, duction to the Bd. Immunity Metroparks Illinois 9 Ohio St.3d 1966 U.Ill.L.F. N.E.2d 873 a differentiation (1962)by prospectively overrul- leg exercise of a N.W.2d was established between immunity respect ing the doctrine of with the exercise judicial function or islative Fur- against school districts. compared to tort claims planning function of executive or concluded that a claim stat- perform ther attention employees in the negligence of discriminatory, Mil- Glassmann v. super ute was their activities. Failure ance of (Minn.1984), ler, denial conduct not 356 N.W.2d sledding area evoked vise a com- right any recipient of worker’s immunity. of by governmental protected City improper, Bernthal v. However, pensation for all was statutory (Minn.1985). Paul, 376 N.W.2d 422 under the circumstance St. property owners of In Bernthal, po- the considered two as a court apply to the claimant was said to purposes which tentially identifiable Consequently, the dis recreational user. process: elimi- keep have fueled the enactment duty to the user to

trict did not owe a insurance carrier nation of benefit to an of this premises safe for use. Citation government entity protection of the immunity perspective is authority for an However, law, responsibility. directly to from financial improvident. Related Ohio say: provided by opinion went on interesting comparison is an Howarth, Immunity Ar Sovereign purposes identified Assuming the two —An (1973) Pro, 22 Clev.St.L.Rev. gument statute], legitimate, ques- are of [the Sindell, Ar Sovereign Immunity the classification tion remains whether —An (1973). Con, 22 gument Clev.St.L.Rev. permissibly furthers the statute creates Murray Murray, The constitutional, Uncon See also purposes. To be these Immunity in stitutionality Sovereign legis- reasonable for the must have been Illegitimate Stand Ohio—Last that use of the classifi- lators to believe 77, (1986): King, 18 U.Tol.L.Rev. pur- identified promote the cation would Furthermore, classification, poses. long courts have witnessed as Ohio purpose, can- doctrine of even it does fierce a battle over the further if rationality analysis in the not withstand sovereign immunity as courts if upon “crite- is based Victory passed between nation. classification objective to the wholly ria unrelated citizens and the bal- of’ Reed, 404 U.S. sovereign power and individual the statute. Reed ance of 251, 254, 30 L.Ed.2d 225 upon contemporary no- 92 S.Ct. rights dependent (1971). “must rest The classification justice. tions of having a upon ground some of difference Note, Liability Interpreting the Tort See object and substantial relation fair State, 48 Reynolds v. the State Ohio: persons legislation, so that all of the (1987). Hardy v. Ohio St.L.J. 577 VerMeu treated similarly circumstanced shall be len, 512 N.E.2d 626 32 Ohio St.3d Virginia, Royster alike.” Guano Co. 108 S.Ct. cert. denied 484 U.S. 561-62, 412, 415, 40 S.Ct. 253 U.S. (1988) persuasive L.Ed.2d 993 64 L.Ed. statutory addressing malpractice medical added). (emphasis at 425-26 remedy. to a Id. denial of a Detroit, 364 Mich. City principal opinions reject- Williams Another of the provided a similar 111 N.W.2d validity ing continued on a anticipatory elimination provided by Spanel v. Mounds View Cooperrider, closely divided vote.16 See 264 Minn. District No. School 16. The determined spective: ing political distinct Brethren. He is rogue one team or the When to what concurring in the opinion lines, a court of last resort divides accord- case, eyes the lone writer of a usually reading other; vote of Justice supposed affords of his failing finds himself a sort of divisively —so which the dain- interesting per- I looks Black, twig separate lined —to upon join up ty cast reluctant Holmes law," too, ness. once * * * vestments there upon settled. Out of such that "ideas become ^[******] It’s a nuisance " called "one of the misfortunes to admit ‘Judges, him. plain of delicate ostracism * * * like doctors and they old-fashioned to revise what made mistakes. laziness comes what encysted animal others, are you phrases primly Then, have lazi- Law, of Tort latures in the Reform Court, Legislature, and Govern- Minn.L.Rev. 265. Liability Michigan, mental Tort Mich.L.Rev. Sic ^{[*] [*] [*] [*]} Sc supreme “The dozen or so state courts modernizing trend, Ne- Within recently abrogated the immuni- that have municipal first directed to braska court was ty recognized that an un- doctrine have immunity: just principle cannot be and irrational during years, Particularly past 10 persist ground on the hollow allowed to increasing opinions volume judicial rule antiquated job is a changing rea- pointed out fact that the have legislature.” for the 16 Kan.L.Rev. 265 underlying the traditional wide- sons page at immunity sweeping sovereign rule of Brown, 806-07. 160 N.W.2d at virtually disappeared in so- modern have pro- That court determined to Nebraska today longer just, The rule is no ciety. ceed action reasonable, judicial nor defensible. The effectively to a more directed solution govern- on the traditional rule of attack specific narrowly limited to facts more immunity judicial mental resulted Any framed litigated cases. modifica- abrogation of the doctrine in several ultimately shaped by tion this court California, [Citing Il- cases from states. should limited to torts and should not be Florida, linois, Michigan, Jersey, New liability imposing any be construed as on also, See, Hink and Wisconsin Arizona.] governmental body in the of exercise Schulter, Thoughts on the and Some might what termed “ministerial or be Lia- American Law of Governmental Tort discretionary functions” nor the exer- (1966); A Rutgers L.Rev. bility, 20 quasi-leg- cise of or or Immunity on Government Tort Comment quasi-judicial islative functions. (Jan.1968). Kansas, 16 Kan.L.Rev. 265 then held Id. 808. That court that cities longer is no major The conflict wheth- and and other subdivisions governmen- doctrine er the traditional public local were not from bodies immune liability tort immunity tal is obso- liability arising ownership tort out of the but, instead, unjust, and lies in the lete operation use and of motor vehicles. responsibility power of area of the and the university Brown followed track it. courts to reform For a discussion Municipal meet accident of Johnson responsibility courts Omaha, of the relative 184 Neb. University of area, see, (1969): legislatures in this The N.W.2d in Abolishing Role of the Courts Govern- The issue issue (1964), 888; Immunity, Duke complete mental L.J. are two distinct Peck, Legis- Role of the Courts and issues. The removal The

very eyes; injustice by judges who knew injustice Jerome authority, tors and like gently protracted voke further here—of at the powerless to ing by, What indeed are thereafter for a primarily pp. ^[******] plight of the courts? constructed totally Frank, continues totally life of cause analysis.” act, disinterested or appliances 273.” innocent victims? Are responsible legislators Princeton a rule made at common law judges to repetitious unremittingly occasioned naught year long ’ maintained Courts On which, after time cease to University do as inexcusable politely modern eleva- sufferings year goes by being negli- before their by public the over- Trial, amused judges stand- Press, —as pro- immunized original). Williams, commission. As Dante cold-blooded omission Court. day stranger always life’s City weighed greater teachings; Final Detroit, better 111 N.W.2d To see police error than in different the law. Action of answer is Judgment than total what officer Mich.App. teachings happened at 10-12 invariably average sins of the same as arrives in our conduct, scales when tells inaction. Sins of us, warm-hearted thereafter (emphasis see Anderson any 221 N.W.2d given by two will Highest kind is great out specifically at bar relates tort ac- rule. case specified in a area of however, liability in impose city; we consider ab- tions does not absolute to a gov- only makes a place immunity. applies to all rogation the doctrine subject to the same entity state, ernmental the state: public bodies within nongovernmental apply to rules which towns, counties, cities, villages, school corporations who do not have persons or districts, districts, drainage dis- sewer sovereign governmental im- the shield of tricts, political subdivisions other posture of the case be- munity. In the they incorporat- the state —whether us, petition can demurrer to the fore rule of By reason of the ed or not. gov- if the doctrine be sustained superior body respondeat shall this case applies to ernmental damages for the torts of its be liable for sweep. in its full traditional officers, occurring agents employees Comment, The Doc- See no. The court said in the course of the of such business Immunity in Ne- trine Governmental of body. public braska, Creighton 1 L.Rev. 79 of Wisconsin and its So far as state Iowa, intervened dis- concerned, various arms careful in general tort claims act passage of a be made between the ab- tinction must purpose perceived by the court: immunity doctrine and rogation of the General “We can conclude private party to sue the of advantage to Assembly no ultimate saw state. continuing upon to cast the state Holytz, 115 N.W.2d (emphasis at 625 add- the full unfortunate individuals some ed). damage by the tortious burden of done justice officers, pathway smooth agents or em- No conduct of state injured in Wisconsin was to be ployees.” negligently recognized by the sov found as witnessed State, 904, 910 Hubbard v. 163 N.W.2d State, Cords v. immunity in 62 ereign Worthing v. 1969) (quoting Graham (Iowa 42, (1974), 405 and the Wis.2d 214 N.W.2d 626, ton, 845, 860-61, 146 N.W.2d 259 Iowa Sambs constitutionality liability cap in of (1966)). open- The Iowa act was an 636-37 Brookfield, 97 Wis.2d City v. 293 end tort claim act with stated of State, 101 cert. denied 449 U.S. exceptions. Lloyd v. 251 N.W.2d N.W.2d State, v. (Iowa 1977); Saxton Stan 206 497 551 66 L.Ed.2d S.Ct. (Iowa 1973). 823, 280 County, hope v. Brown

N.W.2d 85 90 Wis.2d (1979). Conversely, the coro N.W.2d subroga- Wisconsin moved from denied responsibility immunized from ner was not damage by applied immu- relief for car tion exercised discretion fault without Newark, N.J. Firemen’s Ins. Co. of nity County, 96 Wis.2d Scarpaci v. Milwaukee County, Wis.2d v. Washburn (1980), public and a N.W.2d 816 (1957),17 to elimination of N.W.2d 840 unconstitutionally take accord could Holytz City v. lake immunity absolution of State, Milwaukee, ing to Zinn v. Wis.2d 115 N.W.2d 618 17 Wis.2d (1983). Finally, the Milwaukee N.W.2d 67 review team merited Brewer’s baseball re- problem which we foresee Another contended unconstitutional protection from scope decision is the garding the of this adjacent permit could legislation which of what bodies determination Milwaukee Brewers abrogation prison to be built. scope of the within contract, integrity only property but not as otherwise This case included a statement body life. Like a injury or maintenance of the concepted consti- in the character of case hanging acknowledgement today generic involving immunity inquiries "[v]ested tutional property peg very immunity adjudication of Men on the in a and contract stand justified logic approved nor category is neither remedies for Devon different from inchoate Any application for law in social conscientiousness. acts which are not actionable at common differentiating rights approval Co. are made so statute.” Firemen’s Ins. but Newark, N.J., property body is at least outmod- and life from N.W.2d at 846. This feudal- of ists person. today’s worth of a realities of the perception constitutional terms ed in values in public property upon dependent where Dept. v. Wisconsin Baseball Club might occur. Services, 130 Wis.2d Health and Social (1986). North Dakota commonality 387 N.W.2d this character cri- arbitrary profu- inde inspired immunity and no statute to found sis pro- malpractice enactments among sion of medical tort victims fensible classification analysis persuasive logic vides government agencies with differentiate Hoem, American law. direction of modern Sebelius, insurance, Patch or without example not isolated (N.D.1982), a medical 320 N.W.2d 511 reflecting a of that constitutional character pro quid quo malpractice act denied a development. repose The statutes of law which invaded constitu classification creating constitutionally provid- a denial of in consequently protection and was tional identically em- ed access the courts Olson, 270 N.W.2d Ameson valid placed similarly statutory created (N.D.1978). Lyons also Lederle See by ap- injured affected here bar to the Laboratories, Cyan A Div. American immunity. plied (S.D.1989). Co., 440 N.W.2d 769 amid Note, analysis, singularly perceptive In a aversion Consequently, demonstrated Unconstitutionality Medical Mal- delivery justice changed with of courts Repose: practice Statutes Judicial immunity nearly concepts to the denial Will, Legislative Versus Conscience unanimous. the author traces the Vill.L.Rev. progress constitutional law as

current emerging trend to find such statutes to 89 TO IX. FAILURE OF CHAPTER The author identifies be unconstitutional. THE MEET CONSTITUTIONAL an direction earlier achieved identical AT ITS TESTS. IRRATIONALITY Comment, guest litigation. statute See WORST Constitutionality Automobile The Re- Roadmap A to the Guest Statutes: by It now unencumbered becomes time Equal Challenges, Protection 1975 cent or illusions to medieval anachronism Comment, (1975) and B.Y.U.L.Rev. 99 Const, Wyo. English kings to look at what Guest Common Law Basis Automobile says: really art. 8§ Statutes, U.Chi.L.Rev. open every person All for shall be pervasive as enacted Those statutes then reputation to injury person, an done or depression outgrowth as were for an property justice shall have administered ap- by adjudicatory long time satisfied sale, delay. may denial Suits without or proval unanimously are almost now brought against the state in such including Wyoming. Nehring, rejected, legisla- in such as the manner and courts 582 P.2d 67. may by ture law direct. newly in- This understood constitutional quali- right quantified That basic is not or right access the courts— terest of maybe fied with sometimes or limitations right remedy provision to a accommo- —as expand availability nor does text process equal protection dating due rights denying any choice when engineering now crescendo cases speaking only obligation provide invalidating dehabilitary repose. statutes of also process. forum and I will consider brings to our attention a climactic This non-self-executing that the characterization whole redirection the courts series ingredient discussion cases, many arise in states with of which subject of singu- cases as an outdated dissertation modernized to a the more attention special legislation bar, apply emplaced immunity cannot which invali- larly which preclusive repose.18 presently justice denial of date statutes authorizes the 961; Litvak, (1983); Kenyon, 298 S.E.2d 484 Strahler v. St. Luke’s Austin 1984); (Mo.1986); (Colo. Hanft, Hosp., P.2d 41 So.2d 706 S.W.2d 7 Carson v. Maur Phelan er, (1980); (Fla.App.1985), appeal vacated So.2d 120 N.H. 424 A.2d 825 Gaines v. Preterm-Cleveland, Inc., (Fla.1986); Stroup, 33 Ohio St.3d Shessel v. 253 Ga. 626; (1984); (1987); Singer, Hardy, Ga. N.E.2d 316 S.E.2d 155 Clark v. N.E.2d 709 Obviously malpractice says injure in- state it can them the medical and whether denied access to jured claimant who was they compensated depend or not are will justice by passage statutory of a time be- good place they fortune of the where injured he he was or a claim fore knew that (or not) injured. are might exist is no different from the travel- singular concept produc- that is now negligently injury er inflicted with by statutory ed deletion of these remedies public official and denied access to the then injury recovery majority opin- and this perpetrator courts the character of the prop- ion in construction absolution through newly of that created erty protection destroyed valued when applied immunity. by government, damaged or taken despite equal protec- well be body destroyed unprotect- life should be tion, process rights jury due to a con- negligence agents ed from and fault of the provisions premier stitutional that the ob- government. disintegra- As a further jection to enforcement of statutes such as principle recovery tion of reasoned Chapter 89 arise from denial of the consti- protec- within the umbrella assertable courts, guaran- tutional access to the provided constitution, urgent- tion I ty Wyoming by Wyo. is enumerated for ly dissent. Not does the result lack Const, Inevitably, guest if art. stat- § practical moralism in individual join repose utes dodo birds and statutes of protection society, justi- but historical extinction, passenger pigeon follow the precedential fication and realism cannot be prohibition remedy by unconstitutional persuasively applied to authenticate the re- specialized immunity indefinitely cannot compare sult achieved. We should consti- morally legally jus- maintained as either inquiry tutional for the to sell tified.19 used interest, property cars as a Roslindale Mo- general There system should be a Sales, Boston, tor Inc. v. Police Com’r of justice generally that is followed instead of 79, (1989), 405 N.E.2d 312 Mass. 538 with erratically irrationally applied pi- for protection negligent injury body for to or geon-hole results. There should also be a life itself here. evidenced It is not too predominating concept, if not to foundation right price competi- different from the to every rationally system constituted of tort tively right as the or the constitutional size law, assuring recovery injured per- newspaper, body sanctity of a but not of Wyo- son where fault is found. How are ming’s Kamps, and existence. Pirie v. 68 justice citizens to understand the See 83, (1951), delivery system they paying Wyo. for? The 229 P.2d 927 as well as 270, Scherbarth, ing Harriger, Mominee v. 28 Ohio St.3d 503 the earlier case of Ohio 99 Kintz 240, (1986); Porter, 168, (1919); Reynolds N.E.2d 717 760 P.2d St. 124 N.E. Nelson, (Okl.1988); Neagle 685 S.W.2d 11 Ohio, "1. The Constitution of Bill of (Tex.1985); Krusen, Nelson v. 678 S.W.2d 918 16, Rights, provides, among Section other (Tex.1984); Votteler, Sax v. 648 S.W.2d 661 things, ‘Every injury for an done him person, (Tex.1983); Kohnke v. St. Paul Fire & Marine land, goods, person, reputation, in his or shall Co., 80, 585, Ins. review Wis.2d N.W.2d remedy by have due course of law.’ granted 141 Wis.2d 416 N.W.2d 296 duty primary "2. It is the of to sus- courts remanded, grounds on other aff'd Wis.2d right remedy, tain this declaration (Wis.1988). 424 N.W.2d 191 See wrongfully wherever the same has been in- Builders, Inc., Phillips also v. ABC vaded.” (Wyo.1980). That court then considered the test for constitu- tionality: boundary repose A statute of marks the of a right-to-a-remedy provision of Section right. substantive A inter- statute limitation analysis require Article I does not poses only procedurally remedy itself to bar the pro- used to decide due rational-basis that is right Reynolds, after a substantive vested. arguments equal protection 816; Note, cess or supra, Vill.L.Rev. at 400. constitutionality legislation. The fault Lyons, 440 N.W.2d stat- unconstitutional Cf. legal remedy is that it denies [the statute] malpractice ute of limitation for medical reme- bodily injury. who has suffered This one dies. legislature may not do even if it acted interesting analysis 19. An is made the Ohio awith rational basis. Hardy, quot- Hardy, court in 512 N.E.2d at in first N.E.2d at 629. general All laws of a nature shall have Bulova Watch 84 P.2d 767 and Langley, cf. operation. a uniform Quality Co., Oil P.2d 409. also See Const, Co.,& du De Nemours v. E.I. Pont Co. art. Wyo. 34. § (1958). I cannot 322 P.2d 731 182 Kan. prohibited. Special and local laws scrutiny to the degree accommodate pass local legislature shall or body recovery injury to or right for following in any of the enu- special laws * * * significance lesser of life with a destruction cases, say: is to merated * * laws. trade acceptance of fair than In of civil *. all limitation actions can general cases law be other where a invoking or standard for present This shall applicable special made law be according place waiving enacted. irrationali- injury boundaries extends Const, Wyo. art. deny rights citizens ty used § when public facilities. On the users personal as the Damages injuries death parking lot across the and onto the limited; compen- streets not to workmen’s sidewalk, injury inflict government can sation. building, immunity; into the limiting the No law shall be enacted expelled from statism re- government is damages to be recovered for amount any other build- responsibility like acquire any per- causing death of

ing owner.20 son. Const, art. Wyo. assessing the of the 1986 § creation government bodies de- immunities Dealing we to do are called this maintenance of sign, construction and appeal with the freedom need to reaf- driveways walkways, we employees kill to maim or meaning to constitution. firm our by negligent upon misconduct road citizens walkways, ways or I cannot fit result Equality of all. achieved into the constitutional limita to be life, liberty In their inherent opposed array Wyo tions happiness, all mem- pursuit and the ming protection. constitutional As uni equal. of the human race are bers principle, provisions Wy versal these Const, Wyo. art. 2.§ power of oming Constitution limit the process Due of law. body and no can act of life, person deprived of No shall be them. sustained which conflicts with At process liberty property or due without Ry. Ry. Street v. Missouri Pac. chison Co. of law. Co., 31 Kan. 3 P. Const, art. Wyo. 6.§ Likewise, Hoem, as we 756 P.2d said absolute, arbitrary power. No requires denial proper examination degree Absolute, of near aimless venture arbitrary power over the guarantees into denial of lives, liberty of freemen property injuries citizens. Victims of tortious republic, nowhere in a not even in exists no less if caused protected should be largest majority. employees be the public than would victims Const, Wyo. art. 7.§ malpractice. medical No less than Compensation property taken. for there, Hoem, again at we Private not be taken or property shall here, strange have bedfellows directed use with- damaged public private for deny negligently interest to relief to those just compensation. out injured. transgressed This enactment Const, Wyo. art. § Wyoming Constitution. Id. at 782. The really absurd result is now achieved. Sto operation general law. Uniform pose park. Consequently parking building public area 20. A lot does recreational within 1-39-120, also, safety problem. Compare parking for the W.S. directed town has user, municipal buildings immunity, area exclusion from with W.S. 1—39— of its for the streets, 106, eliminating immunity any building, alleys parking lots. from so for vail, Lacking capacity gives heed 648 P.2d scant of its applied rationality, I security public- there to construe citizens and voters constitutionality conclude that the test ly imposed Again, tortious harm.21 al- unachievable here. though origin of the variant theories of “ immunity may my- have been ‘one of the prayer forcefully of Justice Rose so ” evolution,’ Oroz, legal steries of Jivelekas, stated in 546 P.2d at 427-29 can- Borchard, (quoting at 1158 Government casually so discarded: not be 13), (parts Liability in Tort 34 Yale L.Rev. writing against age-old In his ac- (1924)), mistaking there should no ceptance of the traditional mistakes of emplacement what the current does for he found the law which moribund justice in access to cases where those are legal doctrinaire, Benja- chains of Justice unfortunately injured by negligent acts min N. Cardozo said in “Law and Litera- government employees of certain defined ture,” published in 1931: provide driveways walkways who ripe “The time is for betterment. ‘Le example, use. See for Recent epoques,’ says Droit a ses Pascal in Decision, Tort Law—Governmental Lia- words which Professor Hazeltine has bility Injuries by Open Caused recently recalled to us. The law has Dangers, Obvious 27 Ariz.L.Rev. 285 epochs of ebb and flow.’ One ‘its upon Men the flood seasons us. before,

insisting, perhaps never I accept handwringing cannot for the law shall be made true to its ideal of negligently injured.

justice. gather up Let us the drift- persistence Due to the of the doctrine wood, pure.” and leave the waters corollaries, sovereignty and its and to

[*] ^[*] # n ^{[*] [*]} the various judicial doctrines that have grown up respect responsibility longer conscience must no officers, great injus- state and its permit principle us to tolerate a of hu- many tice is done to individuals in con- which, hand, man behavior out of denies functioning nection with the of the mod- injured, the maimed and the loved ern state. Most of difficulties that ones of the dead a of action past have arisen in the could avoided wrongdoing just wrongdoer because the proper the establishment of a ethical municipality. is a servant of the state or legal responsibility. basis for expose If the state and its entities are people property negli- and their Oatman, Blachly supra, 9 Law and acts, gent expect then must Contemp.Probs. at 213. respond to suit. say do I my perception It is not nor governmental activity The anachronism of as first endangers rights the inertia citizens can created and maintained of which ever 1155, Oroz, Kaisner, judiciary, 575 P.2d becomes created. 543 So.2d 732. Cf. 18, Lawton, injured City no less unfair to the or killed when v. McCracken (Okl.1982); n. University reinstated a crisis directed Hershel v. cannot, citizens, judges, lawyers Murray Murray, supra, 21. We as or authors in give proper expression (quoting Marbury, in our work to anarchis- U.Tol.L.Rev. at 122 5 U.S. at 163) (footnote omitted) concept appropriately tic of natural law for which we are conclud- Richards, give unable to a rational basis. D. ed: (1986). sovereign immunity Toleration and the Constitution at 7 The new act alters merely question, the form of the not the con- applicable is Where also tort law to business that, clusion. If it remains true as Chief Jus- conduct, general goals I would find the two wrote, very tice essence of "[t]he Marshall compensation of victims and deterrents of liberty every in the indi- civil consists persuasively significant. Immunity misconduct laws, protection of the vidual to claim the irresponsibility have an intrinsic character injury,” civil liberties commonality whenever he receives when directed to human behav- society proclaims people sover- Responsiveness responsibility equally in a ior. Calabresi, eign government ac- Optimal attend directed conduct. De- demands that the stand Accidents, (1975). terrence 84 Yale L.J. 656 countable. per- 237, protection equal process and due Foundation, P.2d In

Hospital spectives, justice attacks have J., concurring). (Okl.1980)(Opala, specially sovereign immunity usually failed where Nevertheless, pulled cannot be Chapter 89 if claim sounded tort was invoked guarantees to extri through constitutional except private for the bill disconsonance of legislative act. Practical valid cate out a application. Had the text of constitutional require do not this problems of been confined issues Chapter 89 Dan injustice accommodation. kind of sovereign immunity, then we would have 471, Williams, 397 U.S. 90 S.Ct. dridge v. spe- irrationality case confined to this 398 U.S. reh’g denied 25 L.Ed.2d applied immu- interest classification cial (1970). 26 L.Ed.2d 80 90 S.Ct. thesis that nity and somewhat relatable rationally I find a Nor can distinction original injustice may be unconstitu- legitimate purpose, address a drawn to until eliminated then reinstated tional v. Ins. Co. and Southern Western Life O’Bannon, succeeding legislation. Cf. Equalization California, Bd. This calls to consider 770 S.W.2d 215. us 648, 101 2070, 68 L.Ed.2d 514 451 U.S. S.Ct. original injustice was though even (1981); Bradley, U.S. Vance unchallengeable, its as rein- reinstitution (1979), except to 59 L.Ed.2d 171 S.Ct. pro- elimination can be statement after justice at an rights reduce of citizens constitutionally. is Tested scribed anticipated saving by negligent absolved question socially struc- whether absurd government. No more funda conduct of injustice and denied when ture perceived than free mental interest can be society forsaken can then be con- once unjustified negligent activity dom from stitutionally directly infect restored to due life. body denying or continued damaging process, equal rights of ac- protection and premium insurance Certainly, neither life opposite judicial system. An cess to age nor is intrinsic to main tax retirement almost that Brown v. view would believe Wyoming’s guar tenance of constitutional Education, might be written out Board of life is less Injury antees. or loss of knowledge and that of our collective resulting simple from effacious whether prior separate equal restored idiom White, negligence gross or misbehavior. nation for practice to the social at 1275. Pain after cannot education and existence. perpetrators. differentiate the intent of context, we are called to a broader Morris, 236 Va. 372 S.E.2d Lentz Cf. recognize Rasputin not dead. Im again not ad Justification unjustified munity’s invalidity, intrinsic litigation by comparison vanced result political constitutionality, yet resiliency ing congressional promote efforts analysis. rational Com confounds See power. nuclear See Duke Power Co. ment, Sovereign Immuni Doctrine of Study Group, Environmental Carolina ty Wyoming: Current Status of Inc., 98 S.Ct. 57 L.Ed.2d 438 U.S. Abrogation, Arguments Doctrine and granted remedy where XX Land & Water L.Rev. 221 See equal protection provide process and due 1; Borchard, L.J. supra, 34 Yale also rem on the monstrous difference where no Minge, supra, VII Land & Water L.Rev. at edy injury. provided will for death 229-62, 618-62; Comment, Wyoming’s liability and Neither can absolution from Sovereign Act: Governmental Claims Im Chapter responsibility provided by 89 be Exceptions Statutory munity With — A discretionary compared function with XV L.Rev. Analysis, Land & Water immunity since dis differentiation between (1980); Note, Immunity Sovereign already cretionary ministerial conduct has Wyoming. Oroz v. Board State of by 1-39-102(b). been abolished See W.S. County Commissioners Coun Carbon Davis, (Ala.1988). Grant v. 537 So.2d 7 Land (Wyo.1978), 575 P.d 1155 XIV & ty, Cf. Sovereign Buick, Pearson, Note, Denver Inc. (1979); L.Rev. 271 and Water (Wyo.1970), distinguished munity Concept which Potent Still — A Im Wyoming, Wyo.L.J. difference now abolished. ing, willingness legislators ig- irrationality of of most is the problem second defects-discre- combining planning-design special imposed nore bill limitations in the making decision tionary governmental and injustice and to avoid created constitution protected gov- accomplish a character of deterrent earlier by the out-dated created plain negligence from activity ernmental immunity. by judiciary called is of the facilities and maintenance operation unfortunate, record, reflected in this injury to its citizens. society which cause approach is that this unconstitutional now Likewise, recognize unjustified is failure to suggested as an alternative to a uniform comparisons differing invoked in thesis adjudicatory system as a basis and fair proprietary action and ministerial between jus- recreated upon which this responsibility. legislation. tified in present- Perhaps major problem now improper suggest that unconstitu It is logic justification lack and ed is the appropria private tional bills as waiver character of ac- protected attends a in the fu should continue to be used tion roadways, parking and side- tivities rather than a rational and even-handed ture buildings, recreation fa- not for walks but plan encompassing a dissection of state cilities, of other or the multitude schools morality responsibility and constitutional is the activities within which eager provide effort to individual I citizen is the user. performer and the persons fortunate justice for those ized government retain- rationalize the cannot legislative con enough to have the needed on the roads but ing liability for vehicles I cannot assent process, tacts. such a With upon which liability for the roads escaping past join. in the ever not now as will all of that rationali- the vehicles ride. How 171, ch. serious Wyo.Sess.Laws. the constitutional See justified despite zation prob- Wyoming Indus escapes me. The broadened to an inmate at mandate $100,- 1970, not end with the Chapter lem 89 does authorization with trial Institute lia- sovereign immunity since the 61, state and 000; Wyo.Sess.Laws ch. Wor bility charged to descend also denial is 796, highway construc thington, 598 P.2d the local units $500,000; accident, appropriation site tion immunity may past government wherein 24, high serious Wyo.Sess.Laws ch. paved If a road can be have existed. never $500,000 accident, appropriation way injury, stopped sew- uncompensated Wyo.Sess. immunity; and 1983 waiver of immunization. plugged with er can also be highway Laws ch. serious $250,000 accident, and waiver appropriation X. BILLS PRIVATE art. immunity.22 Wyo. Const. See that has in recent to conscience The salve law; general operation of uniform § by Wyoming time been used Const, special, local laws art. Wyo. § of im- injustice operation to absolve Const, art. Wyo. prohibited; § act, immunity by private munity has been appropriations. prohibited clearly appropriation, waiver subject private bills specific violate These enactments unconstitutional. immunity for one remove special acts to the uni- expressed limitations and both act of the injured this state’s constitu- formity philosophy of directly Rector v. agent was addressed Marcus, Local Special and tion. Cloe and (Okl.1972) (quoting State, (1936). Never- Ky.L.J. Legislation, Const.), V, Section Okla. Article theless, process door hand-out this back Wyo- analysis provision of a similar times legislature four used has been lobby- ming Constitution: expertise of recognition of the as a private to em- bills is similar consistently The trouble with Only legislators voted "no” two legis- you do what is waiver first choose to four back door bezzlement. Once to these although generally speaking, gambits; to do it wrong, lative easier to continue it becomes recognized legislators the constitutional most irresponsibility regularity thereafter. justice. attempting provide

1360 Corp., Through Berry a v. general nature shall have Beech “Laws Aircraft (Utah 1985). State, 670, Deferring P.2d 676 throughout the 717 operation

uniform can amount to abdi- general law can be made and where duty protect of our special shall be enacted.”cation law applicable, 3] [2 rights guaranteed the constitution state, legisla- source and limit of this “the special law emplacement of premier v. judicial power.” as well as Nelson tive 67, Nehring, 582 P.2d came proscription 918, Krusen, (Tex.1984). 923 678 S.W.2d forty-seven- Wyoming’s which invalidated of its basis year-old guest invidiously statute 89 finding Chapter In legislation after dozen special nature as pollutes Wyoming’s constitu- demeans and validating appellate decisions. prior rights justice, respectfully I dis- tional for sent.

XI. CONCLUSION of human con- an attribute

Negligence is Justice are inevitable.

duct and accidents operation which will a standard

deserves for citizens.

provide protection by United States

That announced standard John Marshall

Supreme Court Justice life remedy body for should right and GREEN, Appellant Michael H. anxiety the level not overwhelmed (Defendant), v. pass Chapter legislature to which drove the 89. Wyoming, STATE anachronism Immunity is an outmoded (Plaintiff). Appellee parentage. history and questional applies unjusti- appeal, majority No. 89-47. irra- of review an fiably limited standard Wyoming. Supreme Court of disturbance of basic tionally created justice injury or death. reparation 26, Dec. 1989. constitution- This when listed classification

ally given life in the never be should I appertains. refuse

or death to which injured at the courthouse door.

lock out the Co-Op Bldg. Supply v. Baltic

Daugaard (S.D.1984); Hardy,

Ass’n, 419 349 N.W.2d guar- constitutional

512 N.E.2d 626. Our should for access to the courts

antees appendage” at “useless

be converted into legislature. Berry By and whim 43, (1923). Wyo. Phillips, Highway P. 484 See also State 215 also Lucero v. New Mexico See 157, (1951); (Wyo.1980); County Jack v. Dept., N.M. 228 P.2d 945 P.2d Washakie 55 611 821 (1937); State, 310; One, P.2d 1033 183 Okl. 82 No. 606 P.2d Mountain School Dist. State, S.C. 128 S.E. 172 Emerson, v. 132 Sirrine Supply Co. v. P.2d 1351 Fuel 578 Sanchez, Keiderling N.M. See v. 91 also (Wyo.1978); County Commis Miller Board of (1977); Reynolds, 760 P.2d 572 545 County, Wyo. 337 sioners Natrona 79 Club, 816; 387 Milwaukee Brewers Baseball Harston, (1959); Wyo. Ludwig v. P.2d 262 254; Department R. N.W.2d Soo Line Co. (1948); May City Lara 197 P.2d 252 Highways, Transp., 101 Wis.2d Division of mie, (1942); Wyo. 131 P.2d 300 State v. Marcus, (1981); Cloe & N.W.2d 626 LeBarron, (1917); Wyo. 162 P. Mai, however, Ky.L.J. supra, Compare, Note, Limita Limitation Actions — Statute Constitutionality Special Re Bills Private Legis Special tions Architects Builders lief, Wyo.LJ. obli and the moral Builders, Inc., Phillips v. lation. ABC decision, gation State ex thesis of result-oriented (Wyo.1980), XVI & Water L.Rev. 313 Land Carter, Wyo. P. 477 rel. McPherren v. Carter, (1923); and ex rel. Hanson v.

Case Details

Case Name: White v. State

Court Name: Wyoming Supreme Court

Date Published: Dec 19, 1989

Citation: 784 P.2d 1313

Docket Number: 88-291

Court Abbreviation: Wyo.