Cook v. State

Utter, J.

(concurring) — The primary issue presented by the dismissal of plaintiff-appellant’s action for personal injury damages against the state is whether the 120-day filing period requirement of RCW 4.92.100 violates the constitutional protections of the equal protection and due process clauses of the Fourteenth Amendment. RCW 4.92.100 has never been constitutionally challenged in this court, although on one previous occasion we construed its provisions. O’Donoghue v. State, 66 Wn.2d 787 , 405 P.2d 258 (1965).

The 120-day filing period requirement is unconstitutional as a denial of equal protection and due process to those persons asserting causes of action against the state for alleged tortious acts. The provision has no legitimate state interest supporting it which is required to permit discriminatory classification. It also operates in an arbitrary and unreasonable manner, denying the citizen due process.

I agree with the result reached by the majority opinion, *607 but disagree with its refusal to find a broad violation of the equal protection and due process clauses.

The test to be met is whether, under equal protection, the 120-day filing period requirement creates a classification which is reasonably related to any legitimate state interest, and whether under the due process of law a non-arbitrary, equitable and reasonable classification exists. Nebbia v. New York, 291 U.S. 502 , 78 L. Ed. 940 , 54 S. Ct. 505 , 89 A.L.R. 1469 (1934); Lloyd Garretson Co. v. Robinson, 178 Wash. 601 , 35 P.2d 504 (1934); Clark v. Dwyer, 56 Wn.2d 425, 435 , 353 P.2d 941 (1960).

For these clauses of the Fourteenth Amendment to be invoked, there must be a single, identified class which is threatened by an invalid classification and there must be life, liberty, or property which is threatened by improper process. To identify the class of victims considered and the presence of any property right, the state’s waiver of governmental immunity for tort liability must be analyzed.

If the government has waived its immunity in tort and is like all other potential tort-feasors in this aspect, then there is only one class of victims of tortious acts, and not two classes, dependent on whether the identity of the tort-feasor is government or private. If the government has waived its immunity in tort, it has created a cause of action — a property right — and may no longer frustrate proven claims by this once permissible defense.

I believe the text of RCW 4.92.090 abolishing governmental immunity and the case law that has interpreted it, clearly establish that our state has waived its immunity from tort liability. By this statute, the state has given rise to a cause of action which had not existed prior to its enactment because of governmental immunity. Not only does this waiver of governmental immunity in tort create a vested right in victims of tortious conduct by the state, it also places the state upon the same legal plane and subject to the same legal rules as other tort-feasors.

RCW 4.92.090, entitled “Tortious conduct of state — Liability for damages” was enacted in Laws of 1961, ch. 136, § *608 1 and was amended by Laws of 1963, ch. 159, § 2. We first construed RCW 4.92.090 in Kelso v. Tacoma, 63 Wn.2d 913 , 390 P.2d 2 (1964). We there recognized our previous ruling that governmental immunity in tort existed, that it was for the legislature to change that condition, and found the legislature announced the change in our state’s public policy by enacting RCW 4.92.090 in 1961. Kilbourn v. Seattle, 43 Wn.2d 373 , 261 P.2d 407 (1953).

To further emphasize the clear change in policy as to tort immunity, we stated in Kelso , at page 918: “If there is any room for doubt as to what was intended by the 1961 statute, it has been removed by the amendment of the 1961 statute in the 1963 legislative session.” This in part, changed the 1961 language of “consents to the maintaining of a suit or action against it for damages” to “shall be liable for damages.” (Italics mine.) Kelso concluded by declaring the legislature had made its intention very clear to change the policy of the state and “[t]he doctrine of governmental immunity was not preserved . . Kelso v. Tacoma, supra at 918-19 . Hosea v. Seattle, 64 Wn.2d 678 , 393 P.2d 967 (1964).

The next case reviewing RCW 4.92.090 was Evangelical United Brethren Church v. State, 67 Wn.2d 246 , 407 P.2d 440 (1965), where we again emphasized, at page 252:

There can be no question but that by the enactment of Laws of 1961, ch. 136, § 1 (RCW 4.92.090) the legislature intended to abolish on a broad basis the doctrine of sovereign tort immunity in this state, and we have so held

There are limitations in the Evangelical case but these limitations are substantive in character and pertain to the scope to be given the meaning of tort (discretionary and ministerial, for example) and do not refer at all to the procedural conditions established in an altogether different statutory provision (section .100), which relate to consent to suit only.

Based on our own previous conclusions and the unequivocal language of section .090, there can be no other conclu *609 sion but that governmental immunity for tort liability has been waived in this state. This conclusion permits an application of the Fourteenth Amendment guarantees by which the 120-day filing period is under attack because we deal with a single class of victims and a property right in this cause of action.

The relationship of the waiver of tort immimity with the consent to be sued has been previously discussed in O’Donoghue v. State, supra. In deciding the question before it, the court noted, at page 788, that two distinct things occurred in the passage of chapter 136, Laws of 1961 (RCW 4.92). First, “the State of Washington waived its sovereign immunity and [second] consented to action against it for damages arising out of its tortious conduct.” (Italics mine.) The court then provided the history of the filing period requirements, found the filing period which is now under constitutional attack was passed in 1963 and is a prerequisite to the beginning of the suit or action and is enacted pursuant to Const. art. 2, § 26. Thus, section .100 was not found to be a prerequisite to the waiver of tort immunity, but rather it conditions the beginning of the suit or action.

By so characterizing the filing period requirement, as enacted pursuant to article 2, section 26, the court recognized in O’Donoghue , at page 790, that the issue in interpreting section .100 was “procedural or remedial rather than one affecting a substantive right.” The right referred to is the claim against the state, and the remedy is the means of enforcing the right to redress the injury. In this case the right is recognized by the waiver of tort immunity and we are then concerned only with the validity of limita 0ans on the remedy procedures. In essence then, remedy is a procedure by law to enforce a right.

This difference between right and remedy, between waiver of tort immunity and consent to suit, is explicitly and forthrightly stated in O’Donoghue , at pages 790-91: “RCW 4.92.090 provides the right . . . [and] RCW 4.92.100 and 4.92.110 provide the procedure for the realiza *610 tion of that right.” The filing claim and the filing period are procedural requirements which may not be interpreted as conditions imposed on the substantive waiver of tort immunity.

Our case law first gave clear recognition to the difference between the state’s waiver of tort immunity and its consent to suit in Billings v. State, 27 Wash. 288 , 67 P. 583 (1902). In Billings , we affirmed a superior court dismissal of an action to recover in contract, damages caused by the misconduct of a state agent. The action was brought under an 1895 law which permitted suits against the state. The appellant argued that the provision permitting suit was not only the state’s consent to suit, but was also the state’s waiver of immunity in all business transactions. Finding the provision at issue was enacted pursuant to article 2, section 26, the court rejected appellant’s contention and held, at page 293, “The state, by consenting to be sued, did not waive the right to defend” and “has retained all its legal rights” and “has not consented ... to become responsible for the misconduct or negligence of its officers or agents”. What was being emphasized in Billings was that article 2, section 26, directing the legislature to establish procedures for suing the state, did not impose new liabilities or responsibilities upon the state, nor was it a waiver of any legal defenses. .

In Riddoch v. State, 68 Wash. 329 , 123 P. 450 (1912), we had the first action against a governmental unit for damages for personal injuries. The action was dismissed by the superior court for lack of jurisdiction, and dismissal was affirmed by the Supreme Court. The court began its analysis by affirming the view in Northwestern & Pac. Hypotheek Bank v. State, 18 Wash. 73 , 50 P. 586 (1897) and Billings v. State, supra, that article 2, section 26

creates no cause of action — imposes no liability, as against the state, where none would exist' independently of it. It merely directs the legislature to provide a remedy for causes of action recognized at common law as against the sovereign or created by statute.

*611 (Italics mine.) Riddoch v. State, supra at 332. Thus, that legislation, enacted pursuant to the constitutional mandate, only provides a remedy and does not impose new liability or waive any defense. As in Billings , the Riddoch opinion distinguishes the consent to suit established pursuant to article 2, section 26, and the waiver of any immunities or defenses.

The Riddoch court then proceeded to announce the rule of nonliability for torts which was found to be based upon absence of obligation and not upon mere absence of remedy. The dismissal was then affirmed, at page 340, because

There is no statute whereby this state has assumed a liability for the negligence or misfeasance of its officers or agents, and we find no established principle of law sustaining such a liability in the absence of such statutory assumption.

We now, however, have the legislative assumption of liability in tort due to the waiver of tort immunity in RCW 4.92.090, which if in existence in Riddoch’s case, would have permitted the cause of action.

In State ex rel. Pierce County v. Superior Court, 86 Wash. 685 , 151 P. 108 (1915), article 2, section 26 was again recognized as an authorization to the legislature to control and regulate the right of suit, a matter separate and distinct from whatever legal defenses might be raised by the state once suit was commenced. This interpretation of the constitutional authority for consent to suit provisions has been consistently affirmed. State ex rel. Robinson v. Superior Court, 182 Wash. 277, 279, 282-83 , 46 P.2d 1046 (1935); Weber v. School Dist. 7, 185 Wash. 697, 701-02 , 56 P.2d 707 (1936); State ex rel. Shomaker v. Superior Court, 193 Wash. 465, 469-70 , 76 P.2d 306 (1938); State ex rel. Price v. Peterson, 198 Wash. 490, 498-99 , 88 P.2d 842 (1939); State ex rel. Hamilton v. Superior Court, 200 Wash. 632, 633-34 , 94 P.2d 505 (1939); State ex rel. Thielicke v. Superior Court, 9 Wn.2d 309, 312-15 , 114 P.2d 1001 (1941).

Columbia Steel Co. v. State, 34 Wn.2d 700 , 209 P.2d 482 *612 (1949), provides a demonstration of the difference between the waiver of immunity as a defense and consent to suit. In Columbia Steel the court found no statute which imposed liability on the state for interest upon awards to private parties for tax refunds, and thus denied such interest recovery though the suit was permitted. The court reasoned:

The right to sue the state, when accorded by statute, extends no farther than to grant the plaintiff the right to bring his action and, if the evidence introduced before the trial court is sufficient to establish the state’s liability, to recover against the state a judgment for the amount due ...

Columbia Steel Co. v. State, supra at 712. Thus, the state may permit itself to be a defendant (consent to suit) yet reserve the right to raise all lawful defenses (immunities). Pape v. Armstrong, 47 Wn.2d 480 , 287 P.2d 1018 (1955); Bond v. State, 70 Wn.2d 746, 749 , 425 P.2d 10 (1967).

Gross v. Washington State Ferries, 59 Wn.2d 241 , 367 P.2d 600 (1961), provides yet another example of our previous recognition of the distinction between immunity waiver and consent to suit. An entirely different set of statutory provisions was being evaluated (Laws of 1951, ch. 259, RCW 47.60 et seq.) but they established conditional rights of action against the Toll Bridge Authority under a scheme of provisions similar, yet unlike those of RCW 4.92.

In its analysis, the Gross court recognized, at page 250, “There is a distinction between immunity from process, which goes to the question of jurisdiction, and immunity from liability, which deals with the substantive law.” (Italics mine.) Section 5 of chapter 259 was a consent to liability as given under the remaining provisions of the act, and section 6 was a consent to suit. The critical section 10 provided that, as a condition to recovery, a claim must be filed within 30 days after the claim accrued. The failure to meet the requirement of section 10 was held to deny the operation of section 5 because the provision conditioned recovery itself. However, the filing period of section .100 does not condition recovery or refer to the waiver of tort *613 immunity in section .090 at all, but merely conditions its own terms dealing with the consent to suit.

An example of the above analysis applied in the statutory scheme presently before us is presented in Nelson v. Dunkin, 69 Wn.2d 726 , 419 P.2d 984 (1966). There, the court noted, at page 729, that in 1963 when the legislature waived “its governmental immunity as to tort claims . . . it required, as a prerequisite to suit against the state, the filing of a claim . . The filing of the claim was not found to condition the waiver of tort immunity but was a condition precedent to the maintenance of an action.

Finally, in Kelso v. Tacoma, 63 Wn.2d 913, 918 , 390 P.2d 2 (1964), in which we first recognized the section .090 waiver of tort immunity, the state had asserted that the section .090 waiver “specifies that the state merely consents to be sued and this does not create any liability . . .” We declined to adopt this “technical construction” of section .090 which clearly stated the legislative intent to waive its tort immunity.

In summation, our previous case law has differentiated between the state’s consenting to be sued and its substantive liability as affected by waivers of immunity. These cases have made the differentiation because article 2, section 26 gave the legislature the right to consent to be sued but does not waive any defenses or immunities. Consistent with this long line of case law analysis, we must hold that our constitution provides merely for legislative consent to suit, as enacted in sections .100 and .110, which is distinct from the legislative waiver of immunity, as in tort in section .090. See Muskopf v. Corning Hosp. Dist., 55 Cal. 2d 211 , 359 P.2d 457 , 11 Cal. Rptr. 89 (1961).

Given that the waiver of tort immunity is unbridled by procedural conditions pertaining to the consent to be sued, we may then apply the equal protection and due process tests to the 120-day filing requirement to decide whether it is unconstitutional. Therefore, the cause of action in this case is entitled, under equal protection and due process, to *614 the same protection against discriminatory or arbitrary interference as any other right or as if brought by any other victim of tortious conduct.

The plaintiff’s cause of action involved an accrued vested right — the right to proceed against the governmental tortfeasor — which the legislature may not divest or burden in violation of equal protection or due process.

I believe there is no legitimate state interest supporting the 120-day filing period requirement under an equal protection analysis because by waiving immunity from tort liability the state has placed itself on the same legal footing with other tort-feasors. The reasons usually advanced for the differential treatment exercised in section .100 are no longer valid. The basic reason advanced to justify treating the state differently is to provide the prompt submission of notice of a pending claim so as to enable the state to conveniently make an investigation of facts, witnesses, and to obtain other information. See S. Jour. 928 (1967). Modernly, such rationale, especially when the state has waived such argument as to its liability, ceases to be legitimate because the state has the same capability of investigation and defense as any other potential defendant. This denies it the right to impose special notice requirements.

The state has investigators — civilian and police — and also, many full-time attorneys assigned to departments and to the Attorney General. This personnel, in fact, makes the' state in most instances better equipped to investigate and defend negligence suits than most private tort-feasors, for whom no special notice privileges are provided by law.

The reality of the above is apparent in this case. The plaintiff was injured in a one-automobile accident to which the state patrol responded and from which the injured party received hospitalization in a state facility. Thus, in fact, various instrumentalities of the state had notice of an accident and thereby of a potential claim against the state. Yet, under section .100 this in-fact notice is ignored and a duty is placed on the plaintiff to provide written notice *615 within a set time frame. There being no legitimate state interest to support this special privilege to the state, its continued operation denies equal protection of the law to those victimized by state tortious conduct.

In addition, absent any legitimate state interest, the filing period requirement becomes purely arbitrary and capricious and denies those with rights against the state any remedy if the required notice of claim is violated. Due process of law does not countenance the variance of treatment to state victims of tort, as compared to the other members of the natural class of victims of tort, the private victims.

What is involved in this case is no less than a citizen seeking to secure redress in the courts of a jurisdiction that no longer raises the discredited defense of governmental immunity in tort. Special burdens in classification may often be necessary but they are null and void where they are not directed at the elimination of some social evil or the advancement of some public good. Finding neither, I believe the 120-day filing period requirement is unconstitutional.

Finley and Wright, JJ., concur with Utter, J.