The opinion
BRIGHTMIRE, Judge,
concurring in result.
I concur in the result reached by the majority but I cannot agree that notice by publication, or posting in a public place of a city activity agenda relating to the denial of a tort claim, satisfies the fundamental due process requirements of the .federal or state constitutions.
Lack of due process may be raised for the first time on appeal. Pettit v. American Nat’l Bank of Austin, 649 P.2d 525 (Okl.1982). At stake in this case is the statutory right of a citizen to seek redress for tortious injury inflicted by the government — in this case a municipality. The Governmental Tort Claims Act, 51 O.S.1991 and Supp.1992 §§ 151 through 172, creates a liberty interest entitling an injured victim to due process protection while in pursuit of a remedy granted by the Act. Phillips v. Williams, 608 P.2d 1131 (Okl.1980), cert, denied, 449 U.S. 860 , 101 S.Ct. 162 , 66 L.Ed.2d 76 (1980).
Here the city advocates a construction of the Act which, in my opinion, was not intended by the legislature. The effect of this is to unfairly and arbitrarily ensnare an unwary tort victim which in essence deprives him of “substantive due process of law.” It is settled law in this state that all governmental actions are required to have a fair and reasonable impact on the life, liberty or property of the person affected. In other words, arbitrary action is proscribed. City of Edmond v. Wakefield, 537 P.2d 1211 (Okl.1975).
Our constitutional due process and equal protection clauses are designed to protect citizens against arbitrary acts of the state and secure to all persons equal and impartial justice. Umholtz v. City of Tulsa, 565 P.2d 15 (Okl.1977).
I can understand the “actual denial,” “deemed denial” distinction well enough. But what I cannot understand or agree with is the city’s position that if and when it does act on a tort claim, it is not obliged to give the claimant actual notice of a time-triggering denial by means reasonably assured of apprising the claimant of such action, thus affording him an opportunity to file suit and be heard.
Finally, it is my opinion that this is what the legislature really intended and that the composition of § 157(A) and (B) resulted in an unintended notice hiatus. The object was not to lay a trap for an unwary claimant but to eliminate those created by a governmental entity’s failure to timely act.
For these reasons, I would hold that when the government denies a claim, it is obliged to give the claimant timely actual notice in a manner reasonably calculated to reach him so that he has a fair opportunity to have his claim heard by a court. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 , 70 S.Ct. 652 , 94 L.Ed. 865 (1950).