# Cook v. State > Washington Supreme Court · April 18, 1974 · 83 Wash. 2d 599 URL: https://www.frixlaw.com/law-library/cases/9599540 ## Case - **Full name:** John P. Cook, as Guardian, Appellant, v. the State of Washington, Respondent - **Court:** Washington Supreme Court - **Decided:** April 18, 1974 - **Citations:** 83 Wash. 2d 599; 521 P.2d 725; 1974 Wash. LEXIS 937 - **Precedential status:** Published - **Opinion:** Concurring in part by Stafford - **Judges:** Hamilton, Utter, Stafford - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9599540 ## Opinion text Stafford, J. (concurring in part and dissenting in part) —I agree with the majority’s holding that the doctrine of sovereign immunity is still viable and that appellant’s constitutional challenge is without merit, based as it was on the grounds advanced in Reich v. State Highway Dep't 386 Mich. 617 , 194 N.W.2d 700 (1972). However, I do not agree with the holding that, under RCW 4.92.100, “where the facts of incapacity justify it, we would deem that 120 days from removal of the disability would constitute a reasonable time within which a claim could be filed.” To that extent I dissent. The majority’s attempt to reach a happy compromise for this tragic case is clearly result-oriented judicial legislation. It is conceived in total disregard of the explicit language in article 2, section 26 of the state constitution as well as the *616 clear wording of RCW 4.92.100 enacted pursuant thereto. Const. art. 2, § 26 provides: The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state. (Italics mine.) Clearly, the power to direct the manner in which suits may be brought against the state is given solely to the legislature. The judiciary is not authorized to assume or even to share that power. To do so is pure usurpation of a power that is not ours. Pursuant to Const. art. 2, § 26, the legislature enacted RCW 4.92.100 which reads in part: All claims against the state for damages arising out of tortious conduct shall be presented to and filed with the state auditor within one hundred twenty days from the date that the claim arose. ... If the claimant is incapacitated from verifying, presenting, and filing his claim in the time prescribed or if the claimant is a minor . . . the claim may be verified, presented, and filed on behalf of the claimant by any relative, attorney, or agent representing him. (Italics mine.) The statute specifically requires the filing of all tort claims against the state “within one hundred twenty days from the date that the claim arose.” No exception is provided for minors. Nevertheless, the majority bases its holding on the tenuous ground that “the legislature in enacting the . . . proviso to RCW 4.92.100 could not have intended such a harsh and unjust result . . .” The weakness of this approach is found in the statute’s explicit language. It leaves no room for either statutory construction or interpretation. Yet, the majority contends the legislature did not mean what it explicitly said. Whether the legislature acted wisely by creating the challenged restriction is not a proper subject for judicial determination. McKinney v. Estate of McDonald, 71 Wn.2d 262, 264 , 427 P.2d 974 (1967); Port of Tacoma v. Parosa, 52 Wn.2d 181, 192, 324 , P.2d 438 (1958). The fact that the legislature made no exception for minors does not give rise to some latent judicial power to do so by means of a volunteered additional proviso. This is true even if it could be *617 said the legislative omission was inadvertent. State v. Roth, 78 Wn.2d 711, 715 , 479 P.2d 55 (1971); Boeing v. King County, 75 Wn.2d 160, 166 , 449 P.2d 404 (1969); State ex rel. Hagan v. Chinook Hotel, Inc., 65 Wn.2d 573, 578 , 399 P.2d 8 (1965); Vannoy v. Pacific Power & Light Co., 59 Wn.2d 623, 629 , 369 P.2d 848 (1962). If there is a need for such an exception, it must be initiated by the legislature, not by the courts. Boeing v. King County, supra; State ex rel. Hagan v. Chinook Hotel, Inc., supra. Finally, the solution volunteered by the majority will create a new, unworkable nonclaim statute that will virtually destroy the nonclaim concept by indirection. If, as the majority holds, the period of limitation does not begin to run until removal of the disability, when will that event occur? The so-called limitation is completely open ended. It is entirely probable that alleged damages will occur which will give rise to a tort claim against the state, wholly unknown to any state agency (i.e./ a one-car accident on an allegedly negligently designed section of highway). If no claim is filed for 10 to 20 years (or even longer in the case of mental incompetency), how could that state possibly defend against the allegations? The legislature has provided a sensible, workable approach to this perplexing problem. The state has been protected from stale and possibly unknown claims. On the other hand, minors have been protected by providing them with a wide range of persons authorized to file the requisite claim. In short, the legislature has attempted to balance the equities. If the 120-day filing period is too short, or if a wider range of persons should be authorized to file claims, the legislature, not the judiciary, is constitutionally empowered to make the necessary adjustment. This dissent is not inconsistent with our recent decision in Thomas v. Przbylski, 83 Wn.2d 118 , 516 P.2d 207 (1973). In Przbylski , the court reasoned that, if a claim is made against a governmental entity for contribution or indemnification, it cannot be said that a claim has arisen until a claimant has had a judgment rendered against him or he *618 has made payment in an action against him. In that case,, the court properly held the 120-day limitation period would begin to run at the time the claim, as thus defined, arises. The result in Przbylski was reached by means of proper judicial interpretation (i.e., a resolution of the date on which a claim is deemed to arise). In Przbylski , it was clear, however, that the parties were at least limited by the overriding statute of limitations for torts. The time for filing claims was not left indefinite and potentially unresolvable, as in the instant case. For the reasons stated, I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9599540. Public record. Not legal advice.