Albert WOOSTER, Appellant (Plaintiff), v. CARBON COUNTY SCHOOL DISTRICT NO. 1, a local government entity; and Darlene Johanson, individually, Appellees (Defendants).
No. 04-146
Supreme Court of Wyoming
April 14, 2005
Rehearing Denied May 10, 2005.
2005 WY 47
“When an agency‘s determinations contain elements of law and fact, we will not treat them as findings of fact. We extend deference only to agency findings of ‘basic fact.’ When reviewing a finding of ‘ultimate fact,’ we divide the factual and legal aspects of the finding to determine whether the correct rule of law has been properly applied to the facts. If the correct rule of law has not been properly applied, we do not defer to the agency‘s finding but correct the agency‘s error in either stating or applying the law.”
Tollefson v. Wyo. State Ret. Bd., 2003 WY 150, ¶ 10, 79 P.3d 518, 110 (Wyo.2003) (citation omitted).
[¶ 22] The hearing examiner‘s conclusions erroneously characterize the statute as requiring the employer, as opposed to the employment, to be principally located in Wyoming. In a demonstration of similarly imprecise and misleading use of language, the Division‘s brief suggests the statute requires that the employer conduct “its primary business” in Wyoming. The clear requirement of the statute is simply that the “employment be principally localized” in Wyoming and that occurs when an employer has a (not the) principal place of business within the state established for legitimate business-related purposes and the employee regularly works at or from that place of business. The uncontested evidence Mr. Kunkle presented met that standard.
[¶ 23] Although not mentioned in the hearing examiner‘s findings and conclusions, the Division‘s determination to reject Mr. Kunkle‘s claim also referred to the employer‘s election not to obtain coverage as a basis for its ruling. While this issue is not directly before us, we note that a non-resident employer has certain obligations pursuant to the statute including to provide certain reports to the division and to file a surety bond.
CONCLUSION
[¶ 24] We hold that Mr. Kunkle‘s employment was principally located in Wyoming and, thus the act applied to his work-related injury. We reverse the district court‘s order and remand for further proceedings consistent with this opinion.
Representing Appellant: Robert W. Horn of Robert W. Horn, P.C., Jackson Hole, Wyoming; and Heather Noble, Jackson, Wyoming.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.
VOIGT, Justice.
[¶ 1] The district court granted summary judgment to the appellee in this negligence action because the appellant‘s notice of governmental claim did not meet constitutional and statutory requirements. We agree and dismiss this appeal for lack of subject matter jurisdiction.
[¶ 2] The dispositive issues in this appeal may be stated as follows:
- Does the district court have subject matter jurisdiction in a Wyoming Governmental Claims Act case where the claim does not meet the requirements of
Article 16, § 7 of the Wyoming Constitution ?1 - Can a defective notice of claim presented within the two-year period of limitation of
Wyo. Stat. Ann. 1-39-113(a) (LexisNexis 2003) be cured by presentment of a non-defective notice of claim after that period has passed?2 - Is the holding of Beaulieu v. Florquist, 2004 WY 31, ¶ 8, 86 P.3d 863, 866 (Wyo.2004) (Beaulieu II) that governmental claims, when presented, must meet the requirements of
Article 16, § 7 of the Wyoming Constitution , to be applied prospectively only?
STANDARD OF REVIEW
[¶ 3] Our standard of review of summary judgments is well known and will not be repeated here. See Beaulieu v. Florquist, 2001 WY 33, ¶¶ 8-10, 20 P.3d 521, 525-26 (Wyo.2001) (Beaulieu I).
DISCUSSION
[¶ 4] The material facts are undisputed. On September 18, 2001, the appellant was driving a tractor-trailer that collided with a school bus driven by the appellee‘s employee. On July 16, 2002, the appellant presented to the appellee a notice of claim alleging injuries and damage resulting from the collision. The notice of claim was signed only by the appellant‘s counsel. On November 4, 2002, the appellant filed a complaint in district court alleging, inter alia, presentment of the notice of claim.
[¶ 5] On March 25, 2004, this Court issued its decision in Beaulieu II.3 On the following day, the appellee filed a motion for summary judgment alleging that the appellant had not signed his notice of claim and it was not signed under penalty of perjury. The appellant responded on March 31, 2004, by presenting to the appellee an amended notice of claim, duly signed by the appellant and certified under penalty of perjury. Clearly, the amended notice of claim was presented more than two years after the date of the collision.
[¶ 6] Further detailed analysis of this case is unnecessary. The ruling of the district court is correct. The law is as follows: (1) when presented to the governmental entity, a notice of claim must be signed by the claimant and certified under penalty of perjury, as required by the Wyoming Constitution; (2) such presentment, and the allegation thereof, is a condition precedent to suit and is, therefore, jurisdictional; (3) the limitation period of
The requirement is clear that an itemized statement in writing is to be filed, which is certified under penalty of perjury. Such a statement must be signed by the claimant or the charge of perjury could not lie. In addition, it is to be filed with the officer or officers charged with the duty to audit the claim.
[¶ 8] This Court has always required that governmental claims comply with
[¶ 9] The collision that occasioned this lawsuit occurred approximately six months after the publication of Beaulieu I, which opinion clearly stated that governmental claims must be signed by the claimant under penalty of perjury. The appellant‘s notice of claim was presented to the appellee nearly ten months later—sixteen months after the publication of Beaulieu I. Thus, the later publication of Beaulieu II did not establish a new principle of law that was relevant to this determinative issue, making prospective application inappropriate.5 See Hanesworth v. Johnke, 783 P.2d 173, 177 (Wyo.1989).
[¶ 10] In response to the dissent‘s earnest plea for equity in the form of prospective application of Beaulieu II, we feel compelled
[¶ 11] In Utah Const. Co., 19 P.2d at 955 (quoting Gates v. State, 128 N.Y. 221, 228, 28 N.E. 373 (1891)), we made clear that, because the State cannot be sued except as it has, itself, allowed, compliance with the constitution and the statutes implementing the constitution‘s mandates is ” ‘a question of jurisdiction [and] could be raised at any time, and could not be waived....’ ” Thus, “[t]he objection that the plaintiff has failed to perform a condition that would have given him a right to sue raises a question of jurisdiction.” Id. Furthermore, while the specific issue before the court was the failure to present a governmental claim, rather than to verify it, this Court held that implementing statutes “cannot be given a meaning that would permit an evasion of the mandatory constitutional provision[.]” Id. at 953. Carried into the present controversy, that means that the courts cannot interpret governmental claims statutes to allow less than the constitution requires; courts cannot give themselves jurisdiction over claims that are not signed or certified to under penalty of perjury.
[¶ 12] In Price, 167 P.2d at 312, we sustained the dismissal with prejudice of an amended petition because the governmental claim had never been presented to the state auditor. We did not use the phrase “subject matter jurisdiction,” but we described compliance with constitution and statute as “a condition to the right to sue[.]” Id. The same result was obtained in Awe, 534 P.2d at 99. Although Awe once again involved the failure to present a claim to the state auditor, we went beyond presentment and noted that “no sworn or certified claim of any sort” was presented. Id. at 98. We repeatedly stated the need for “a formal claim, in proper form,” “[a] formal claim fitting the requirements of
We are not here, however, deciding questions of sovereign immunity, except peripherally. We are discussing and deciding questions of serious and important prerequisite jurisdictional procedures, without which we might as well abandon all rules of orderly conduct of lawsuits, disregard the mandates of the legislature and place everything upon an equitable basis of what we, as judges, might think the arrangement from day to day ought to be. Plaintiffs’ claim of estoppel is without merit; we cannot set up a government or court of men and not of law.
Id. at 105. The point is that there is not a hint in any of these cases that compliance with all of the requirements of
[¶ 13] In Napolitano, 578 P.2d at 1345-49, we reiterated the “condition precedent” principles of Utah Const. Co., Price, and Awe, and applied those principles to an inverse condemnation claim. Five years later, in Board of Trustees of University of Wyoming v. Bell, 662 P.2d 410, 415 (Wyo.1983), we added emphasis to our recognition that compliance with claim-presentment requirements is jurisdictional by dismissing an appeal on our own motion for lack of subject matter jurisdiction. Three months later, we did the same in Dee v. Laramie County, 666 P.2d 957, 959 (Wyo.1983). In Dye by Dye v. Fremont County School Dist. No. 24, 820
[¶ 14] Ten years after Bell and Dee were published, and two years after Dye, this Court took an even stronger stance. In Amrein v. Wyoming Livestock Bd., 851 P.2d 769, 771 (Wyo.1993), we held that, to gain the jurisdiction of the district court in a governmental claims case, the complaint must allege not only presentment of the claim, but timely presentment under
[¶ 15] Amrein was followed in 1996 by two cases, Boyd v. Nation, 909 P.2d 323, 325-26 (Wyo.1996), and Allen v. Lucero, 925 P.2d 228, 230 (Wyo.1996), where district courts were found to lack subject matter jurisdiction due to claim presentment deficiencies. Both cases applied Amrein‘s “with specificity” rule. Similarly, in Routh v. State ex rel. Wyoming Workers’ Compensation Div., 952 P.2d 1108, 1116-17 (Wyo.), cert. denied, 525 U.S. 814 (1998), we held that the Wyoming Governmental Claims Act, being in derogation of the common law, had to be strictly construed, and required claim presentment compliance. Later, Allen, Amrein, and Bell were again followed in Garnett v. Brock, 2 P.3d 558, 561 (Wyo.2000). And in Campbell County School Dist. v. Catchpole, 6 P.3d 1275, 1281 (Wyo.2000), we reaffirmed the jurisdictional nature of the condition precedent of a timely presentment of a notice of claim to the state auditor.
[¶ 16] As mentioned above, the focus of these cases was upon the presentment or filing requirement of
[¶ 17] The line of cases just described led up to Beaulieu II. Beaulieu II is the case characterized by the dissent as a “bombshell.” In truth, Beaulieu II is entirely consistent with the jurisprudence reviewed above, from Houtz in 1902, through Beaulieu I, 99 years later. There is, however, one case “out of whack” with all the others. That case is Martinez. In 1990, this Court declared that the constitutional signature and certification requirements were non-jurisdictional and could be waived. Martinez, 791 P.2d at 958. There is nothing in the precedent of this Court to explain this aberrant decision. Perhaps, as we noted in Beaulieu II, 2004 WY 31, ¶ 13, 86 P.3d at 868, the decision is aberrant because the Martinez holding relied upon In re Bear River Irr. Dist., 51 Wyo. 343, 65 P.2d 686 (1937), a case that had nothing whatever to do with governmental claims or
[¶ 18] The dissent contends that the erroneous holding of Martinez should be applied
[¶ 19] The second reason that we decline to validate the appellant‘s invalid claim via Martinez is that, even if the appellant had been aware of Martinez, which has not been shown, Martinez did not tell the appellant not to sign and certify his claim. Rather, Martinez merely held that such could be waived if not raised in the district court. Inasmuch as these requirements were raised in the district court, waiver is not even available to the appellant.
[¶ 20] Third, we decline to apply our holding herein prospectively only because, with the exception of Martinez, we have for decades considered compliance with
[¶ 21] Finally, if we are to concern ourselves with stare decisis, as we should, then we should refuse to deviate again from the law, as we did in Martinez. Martinez, not Beaulieu II, was the bombshell. Never before, or since, have we said that a governmental claim need not be in compliance with the constitution.9 We must be especially careful that the siren song of equity does not cause us to abandon the law in jurisdictional
CONCLUSION
[¶ 22] The appellant did not present to the appellee, during the mandatory two-year period of
BURKE, Justice, dissenting, with whom KITE, Justice, joins.
[¶ 23] In Beaulieu II, this Court held that failure to comply with the constitutional certification and execution requirements of
[¶ 24] This Court has on several occasions considered whether a change in law should operate retrospectively or prospectively. In Nehring v. Russell, 582 P.2d 67, 80 (Wyo.1978), this Court declared Wyoming‘s guest statute unconstitutional and limited its holding to prospective application. Further, cognizant that the determination is ours to make, we conclude that in consideration of all the factors and any prior reliances involved, our holding should be applied prospectively only, i.e., to this action and all causes of action accruing after 30 days following the date of this decision. (citations omitted).
[¶ 25] We determined in Ostwald v. State, 538 P.2d 1298 (Wyo.1975), that a prior decision of the Court declaring a criminal statute unconstitutional should be applied prospectively only.
Linkletter v. Walker, 1965, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601, (footnote 10 omitted) brought to a climax and explained the entire field of retroactivity, bringing into focus the actuality and practicality of prospective rather than retroactive application, of court decisions declaring a fundamental phase of the criminal law unconstitutional, in any sphere. It laid to rest as out of tune with the times the concept of Norton v. Shelby County, supra [1886, 118 U.S. 425, 6 S. Ct. 1121, 30 L. Ed. 178]. It settled most matters of controversy and concluded that, with respect to reaching a determination of whether a decision should be retrospective or prospective: there is no distinction drawn between civil and criminal litigation; a ruling may be prospective only and it may apply to the invalidity of statutes (footnote 11 omitted) as well as to the effect of a decision overturning long-established common law rules; the constitution neither prohibits nor requires retrospective effect and the federal Constitution has no voice upon the subject; and, the accepted rule today is that in appropriate cases in the interests of justice, a court may make its decision prospective.
[¶ 26] In Oroz v. Board of County Commissioners of Carbon County, 575 P.2d 1155, 1159 (Wyo.1978), this Court prospectively applied its holding abolishing governmental immunity.
The final question herein is the application of this decision. The court is fully cognizant that a long reliance has been placed upon the rule of immunity and that it will raise certain problems which must be considered and proper arrangements
[¶ 27] In McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.1983), this Court recognized a cause of action against liquor vendors in favor of persons injured by an intoxicated driver. Two years later, in Adkins v. Sky Blue, Inc., 701 P.2d 549, 552 (Wyo.1985), we held that such cause of action is limited to prospective application. In reaching its determination the Court noted:
It has been repeatedly stated that where a decision might produce substantial inequitable results if applied retroactively, it is appropriate to avoid such hardship or injustice by providing for prospective operation only.
[¶ 28] In Hanesworth v. Johnke, 783 P.2d 173, 177 (Wyo.1989) (emphasis in original), we adopted a three part test for determination of prospective application.
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, [381 U.S. 618, 629, 85 S. Ct. 1731, 1737, 14 L. Ed. 2d 601 (1965)]. Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Cipriano v. City of Houma, [395 U.S. 701, 706, 89 S. Ct. 1897, 1900, 23 L. Ed. 2d 647 (1969)].
We must apply these standards in order to determine if the “subject matter jurisdiction” holding of Beaulieu II, should be applied prospectively only.
[¶ 29] Initially, we must determine “if the new rule explicitly overruled a past precedent of this court.” Id. at 177 (quoting Griffith v. Kentucky, 479 U.S. 314, 325, 107 S. Ct. 708, 714, 93 L. Ed. 2d 649 (1987)). According to the majority, “... the holding in Beaulieu II that a notice of claim must meet the requirements of
[¶ 30] I do not take issue with the concept that this Court has previously required compliance with the constitutional requirements of
[¶ 31] Prior to Beaulieu II, an execution defect that violated
In the last issue asserted in its appeal, the State contends that the trial court did not have jurisdiction to proceed because Fleetwood failed to comply with
This particular contention by the State is raised for the first time in this appeal. The point was never argued to the district court. The State agrees that this is true, but it contends that an omission of the correct certification results in a failure of subject matter jurisdiction, and the issue can be raised at any time in the proceeding. We do not agree with this contention. The failure to verify or certify as the constitution now reads is nothing more than a defect or an irregularity that is not jurisdictional. In re Bear River Irrigation District, 51 Wyo. 343, 65 P.2d 686 (1937). The effect of that decision is that this alleged defect is not jurisdictional and, for that reason, the defense cannot be raised for the first time on appeal.
[¶ 32] In Beaulieu I, we reiterated the distinction, from a subject matter jurisdiction perspective, between the execution and certification requirements of
While the court has ruled that the execution requirements of
art. 16, § 7 can be waived by failing to assert the issue in the trial court, it has not held that the requirement of filing or presenting the claim is subject to waiver. Instead, we have treated the allegation of the filing of a claim as jurisdictional.
Beaulieu I, ¶ 14. In Beaulieu II, this Court elevated compliance with the signature and certification requirements of
We have, in fact, previously stated [in Martinez] that the constitutional signature and certification requirements, unlike the statutory filing requirements, are not jurisdictional: ... We now believe that Martinez was wrongly decided and that it must be overruled.
[¶ 33] The new subject matter jurisdiction status established in Beaulieu II is significant. The lack of subject matter jurisdiction is a fundamental defect which cannot be cured by waiver, consent of the parties or the passage of time. Weller v. Weller, 960 P.2d 493, 496 (Wyo.1998). Subject matter jurisdiction can be challenged at any stage of the proceedings by a party or by the court. Brunsvold v. State, 864 P.2d 34, 36 (Wyo.1993). A court that does not have subject matter jurisdiction “... lacks any authority to proceed and any decision, judgment or other order is, as a matter of law, utterly void and of no effect for any purpose.” Routh v. State ex rel. Workers’ Comp. Div., 952 P.2d 1108, 1114 (Wyo.1998).1
[¶ 34] In summary, prior to Beaulieu II, signature and certification defects in the claim could be waived if not raised in a timely manner by the governmental entity. After Beaulieu II, such defect could not be waived. Beaulieu II explicitly overruled clear past precedent of this Court. It established a new principle of law.
[¶ 35] In order to satisfy the second prong of the Hanesworth test, we must determine if the purpose of the new rule would be satisfied by retrospective application. This second prong analysis is inextricably intertwined with the “hardship” and “injustice” criteria set forth in the third part of the Hanesworth test. In Hanesworth, we treated the issue as follows:
The purpose of the actual notice requirement is to satisfy the due process requisite stated in Tulsa Professional Collection Services, Inc. v. Pope, [485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988)] and established in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). While that purpose may be furthered by retroactive application of the Tulsa Professional Collection Services, Inc. decision, we conclude that the benefit of avoiding hardships created by retroactivity is an ample basis for nonretroactive application.
[¶ 36] The stated purpose of requiring certification and execution compliance is taxpayer protection. Beaulieu II, ¶ 13. In governmental claim cases which come before this Court, the governmental entity has had the opportunity to contest the validity of the claim and assert all defenses which it might have to the claim. Taxpayers are protected. Even if it is assumed that the new subject matter jurisdiction classification created in Beaulieu II increases taxpayer protection, this Court should properly recognize, as it did in Hanesworth, “... that the benefit of avoiding hardships created by retroactivity is an ample basis for non-retroactive application.” Hanesworth, 783 P.2d at 177.
[¶ 37] The third prong of the Hanesworth test requires an examination of the hardship or injustice generated by retroactive application. Id. The hardship and injustice to claimants by retroactive application is dramatically illustrated by the facts of this case.
[¶ 38] Mr. Wooster was allegedly injured in a motor vehicle collision caused by the negligence of appellee‘s employee. On November 4, 2002, Mr. Wooster filed his complaint. The answer was filed November 21, 2002. Appellee‘s answer failed to set forth any allegation that Mr. Wooster had failed to comply with the governmental claims act or
[¶ 39] On March 25, 2004, this Court dropped the Beaulieu II bombshell. The next day, appellee filed its motion for summary judgment asserting, for the first time, a claim of lack of subject matter jurisdiction for failure to meet the execution and certification requirements of
[¶ 40] At the time appellee filed its answer, Martinez set forth the applicable law. Pursuant to Martinez, certification and execution defects in a claim could be waived. Appellee failed to challenge Mr. Wooster‘s compliance with the execution and certification requirements of
[¶ 41] The majority‘s justification for its decision is also troubling in a broader and more fundamental context. The majority refuses to limit Beaulieu II to prospective application because “such has always been the law.” This assertion is difficult, if not impossible, to reconcile with the doctrine of stare decisis.
[¶ 42] The doctrine of stare decisis embodies a concept that serves as “the basis of Anglo-American common law.” Borns ex. rel Gannon v. Voss, 2003 WY 74, ¶ 24, 70 P.3d 262, 24 (Wyo.2003). We have emphasized the importance of the doctrine. Stare decisis is:
... the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. That doctrine permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.
Id. at ¶ 25. We have observed:
... stare decisis “furthers the ’ “even-handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” ’ ”
Id. (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d 720 (1991)).
[¶ 43] We have also recognized that stare decisis is not a law, but a policy and that we should depart from precedent when necessary “to vindicate plain, obvious principles of law and remedy continued injustice...” Id. However, such departure from prior precedent “should occur slowly, deliberately after much experience, and if possible so as not to affect vested rights.” Id. at 272.
[¶ 44] In Martinez, this Court held that failure to comply with the execution and certification requirements of
[¶ 45] Our past precedent also includes that body of case law epitomized by Hanesworth which allows prospective application of new rules of law in appropriate cases. Proper application of the Hanesworth principles nurtures stare decisis because it allows development in the common law as occurred in Beaulieu II without negatively impacting those affected by Martinez.
[¶ 46] The common thread running through our decisions involving issues of prospective application is evaluation of the potential inequities resulting from retroactive application of the new rule of law. Summary judgment undoubtedly resulted in hardship and injustice to Mr. Wooster. He was deprived of the opportunity to have his claim determined on the merits by the unfortunate timing of the Beaulieu II decision. Retrospective application will cause similar problems for other claimants in Mr. Wooster‘s position. Such harsh results can, and should, be avoided by limiting Beaulieu II to prospective application.
[¶ 47] Prospective application will not prejudice any governmental entity which, pursuant to the Martinez requirements, timely raised the issue of claimant‘s failure to comply with
[¶ 48] Two other issues deserve comment. The majority notes that Mr. Wooster‘s claim was presented to appellee 16 months after publication of Beaulieu I. It is difficult to understand the relevancy of that factor in determining whether Beaulieu II should be limited to prospective application. As previously indicated, Beaulieu I did not hold that a certification defect was jurisdictional. More significantly, such reasoning ignores the reality that retroactive application of Beaulieu II will also negatively impact claims which predate Beaulieu I. At least three such cases are pending before the Court.
[¶ 49] The majority also relies upon the fact that appellee eventually raised the issue of compliance at the district court level to support its holding. Merely raising the defense is not sufficient. The defense must be asserted in a timely fashion. Prejudice to the opposing party is a factor that must be weighed in determining whether the defense was timely. “The controlling consideration is whether the adverse party is prejudiced by the moving party‘s delay in raising the defense.” Pickle at 264. Reversal of summary judgment would allow the district court to determine if appellee‘s late assertion of the defense unduly prejudiced Mr. Wooster.
[¶ 50] In conclusion, this Court in Beaulieu II created a new rule of law by overruling Martinez and elevating compliance with the certification and execution requirements of
[¶ 51] The decision of the district court should be reversed.
ty timely raised lack of compliance with