*1 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. *2 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
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
*4
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.
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
*5
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,
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 *6 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
*7
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
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
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.
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
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
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.
Id.
Commission,
Wyo.
the seizure
plaintiffs injury.
caused
gov-
in a
the state
against
an action
to be
and, lacking approval
function
ernmental
Id.
P. 9
contended
directing
officer
him to
town’s
assist
maintained
citizen
not be
*15
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,
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
*17
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
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
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 *19 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
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 *21 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 *22 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.
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.
*23
Law, Trial, July
Fox,
Century
(1938).
A
Tort
4,
A
construc
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- *25 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.
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
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
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.
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
ernmental
Oroz,
justified
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.
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,
*33
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.
eign king
and
not
claim
Comm.,
through
your
(1963),
no fault of
injuries received
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.
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,
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 *38 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
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
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
*41
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
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
*42
1155,
Oroz,
Kaisner,
judiciary,
575 P.2d
becomes
created.
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).
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
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.