Brown v. Wichita State University

Kaul, J.,

dissenting: I cannot agree with the complete about-face of the majority concerning the constitutional authority of the legislature to deal with governmental immunity.

Time does not permit nor is a discussion of the pros and cons of governmental immunity pertinent to my dissent. Concededly, there are valid arguments on both sides of the issue. In my view the critical question confronting us herein is simply whether this court should assume the ultimate and exclusive power to deal with the subject. Prior to today’s decision the constitutional authority of the legislature to deal with governmental immunity has been recognized many times and never questioned by this court. (Neely v. St. Francis Hospital <b School of Nursing, 192 Kan. 716 , 391 P. 2d 155 , dealt with immunity of charitable institutions, a clearly distinguishable doctrine based upon different considerations.)

In Woods v. Kansas Turnpike Authority, 205 Kan. 770 , 472 P. 2d 219 , this court unqualifiedly accepted the legislature’s enactment of K. S. A. 46-901 and 46-902 in response to our decision in Carroll v. Kittle, 203 Kan. 841 , 457 P. 2d 21 . In an abrupt and complete re *311 versal of its previous position the court today has declared 46-901 and 46-902 to be constitutionally void.

My position and the previous status of the law in this jurisdiction are well-expressed by Justice O’Connor speaking for a unanimous court, in response to the legislature’s enactment of K. S. A. 46-901 and 46-902, in Woods . In the opinion it is stated:

“In practically every opinion on the subject of governmental immunity we have suggested to the legisldture that the extent to which the doctrine is to be applied lies within its province. This court, through Carroll , issued an open invitation to the lawmakers to give consideration to the whole area of governmental immunity instead of satisfying themselves, as in the past, with a series of sporadic statutes operating in separate, isolated areas of activity. At the same time we unequivocally recognized the authority of the legislature to control the entire field of governmental immunity, including matters covered by judicial decision, and suggested that body was in a better position than this court to do so. The 1970 legislature promptly accepted the challenge and responded with the enactment of Senate Bill No. 465 (L. 1970, ch. 200 [now K. S. A. 46-901 and 46-902]). . . .

“By this enactment the legislature, in its wisdom, has expressed the public policy of this state in the field of governmental immunity pertaining to the state and its various agencies. . . .” (p. 773.) (Emphasis supplied.)

Further in the opinion it is stated:

“Certainty and stability in the law are always desirable and in the long run best serve the bench, the bar and the citizens of the state. Now that the legislature has spoken in a comprehensive manner on the subject of immunity for the state and its agencies — something lacking at the time of Carroll — we believe sound judicial policy dictates that further inroads by this tribunal into the immunity doctrine as it relates to liability of the state is neither warranted nor justified. . . .” (p.774.)

Subsequent to the Woods case Chief Justice Price speaking for a unanimous court in Daniels v. Kansas Highway Patrol, 206 Kan. 710 , 482 P. 2d 46 , again referred to our decision in Carroll v. Kittle, supra, and the aftermath thereof in these words:

“. . . The decision did, however, (syl. 4) recognize the authority of the legislature to control the entire field of governmental immunity — including matters covered by judicial decisions. The broad-sweeping effect of the decision was of short duration, however, for, as pointed out in Woods v. Kansas Turnpike Authority, 205 Kan. 770, 773 , 472 P. 2d 219 , the next session of the legislature promptly accepted the challenge by enacting Chapter 200, Laws of 1970, now appearing at K. S. A. 1970 Supp. 46-901, et seq., effective March 26, 1970." (p.713.)

Although Allen v. City of Ogden, 210 Kan. 136 , 499 P. 2d 527 , did not directly deal with the constitutionality of the statutes in *312 question, Chief Justice Fatzer, again speaking for a unanimous court, referred to the Carroll decision in these words:

. . Carroll recognized the authority of the Legislature to control the entire field of governmental immunity, including matters covered by judicial decision. . . (p. 138.)

Obviously, constitutional authority of the legislature to control the entire field of governmental immunity as a public policy matter was, prior to today’s decision, settled law in this state. The majority opinion severely limits, if it does not totally obliterate, legislative prerogative. As indicated in the Woods opinion, the previous position of this court was based upon the proposition that governmental immunity was a matter of basic public policy encompassing far-reaching consequences — fiscal and otherwise — and that the legislature was in a better position than this court to express the policy of the people of the state concerning the same. Implicit in prior decisions is the principle that, for purposes of tort liability, the state, its agencies and other governmental entities may, because of multivarious differences, be reasonably classified differently from private persons — thus satisfying constitutional prerequisites of equal protection and due process. I know of no reasons of public policy which dictate or justify this sudden about-face in judicial attitude concerning a matter of such far-reaching consequences.

Moreover, I cannot agree that the record before us shows that the transportation, by Wichita State of students engaged in university athletics, to be a proprietary function within the boundaries of that concept delineated by prior decisions of this court.

I therefore respectfully dissent.

The judgment of the trial court should be affirmed.

Fromme, J., joins in the foregoing dissent.