Amicus Curiae Brief — London v. Patterson

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CLARK COUNTY, A POLITICAL SUBDIVISION OF THE

STATE OF NEVADA, Petitioner,

BRIEF OF THE STATES OF NEVADA, ARIZONA,

COLORADO, CONNECTICUT, DELAWARE,

HAWAII, KENTUCKY, NEBRASKA, NORTH CARO-

LINA, RHODE ISLAND, SOUTH CAROLINA, TEXAS,

UTAH, AND WASHINGTON, AS AMICI CURIAE IN

SUPPORT OF PETITION FOR WRIT OF CERTIO-

RARI TO THE SUPREME COURT OF THE STATE

OF NEVADA

Ropert List

Attorney General

Joun P. Moore JaMEs H. THOMPSON

General Chief Deputy Attorney

State of Colorado

104 State Capitol State of Nevada

Denver, Colorado 80203 Supreme Court B

Carson City, Nevada

Ropert K. KILLIAN 89701

Attorney General

State of Connecticut Gary K. NELSON

30 Street Attorney General

Hartford, Connecticut State of Arizona

066410 State Capitol Building

Phoenix, Arizona 85007

nena RE RRNSA TARRaRSETRS mRNA AES

SPO, Canson Crry, Nevapa, 1973 a

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INTEREST OF AMICI CURIAE

ARGUMENT

I. The decision below voiding a state statute as a

denial of Equal Protection should be based on

applicable decisions of this court....................-.--.- 4

II. Only the legislature may prescribe the conditions

on which state may be sed...........................000-0.200 7

III. The effect of the decision below renders provi-

sion of Nevada Constitution inoperative as con-

travening the equal protection clause.................... 9

IV. The decision below needlessly draws into ques-

tion application of equal protection clause to

provision of state Constitution...................0.2.:0++ 12

V. Precedent of the decision below will be counter-

productive to the trend of states to waive their

SUT COIS css isis sccensstcesssvccanoindennocinniataaes 13

CODE I ive vcnciictasritede acts aciciccexiteisnsaaetecn tea 15

TABLE OF AUTHORITIES

CASES:

Apfelbacher v. State, 152 MW. 146 ..n..cosecncecsevensesessenasoseness 8

Atchison, T. & S. F. Rwy. Co. v. Matthews, 174 U.S. 96...... $

Chisholm v. Georgia, 2 U.S. (Dall.) 419..........000.00..22.--222- ye

Crown Coat Front Co. v. United States, 386, U.S. 503.......... 14

Deroven v. City of Reno, 87 Nev. 606, 491 P.2d 989............ 2

Friedman y. United States, 310 F.2d 381, cert. denied,

be BU A. - SNe eee NEM Mn ret LMC Cie 6

Geheon v. Bian: S Dae, Be setcclccca pase ects 13

Bees v. Ping, F GO, Biv cccteecrepicneiebenrnckaonacane 8

Holytz v. City of Milwaukee, 115 N.W.2d 618...................... 8

Kendall v. United States, 107 U.S. 123...........0..0.22.22222eeeee- 14

McAndrews v. Mularchuk, 162 A.2d 820...........20..0.002...... ae

Missouri Pacific Rwy. v. Austin, 292 F.2d 415..............--.....- 7

ii INDEX—Continued

PAGE

Muskoph v. Corning Hosp. Dist., 11 Cal.Rptr. 89, 359

P.2d 457 8

Pierce v. Yakima Valley Mem. Hosp. Assn., 260 P.2d 765.... 8

Reich v. State Highway Dept., 194 N.W.2d 700.............. 5, 6, 11

San Antonio Indep. Sch. Dist. v. Rodriguez, 93 §.Ct. 1278..... 5

Sun Oil Co. v. Burford, 130 F.2d 10......222..2.2..2...2......2--eeeee 3

United States v. Sherwood, 312 U.S. 584 14

Vance v. Vance, 108 U.S. 514 6

Whitfield v. Roth, 107 Cal.Rptr. 207 41,12

Williams v. L. A. Metro. Trans. Auth., 440 P.2d 497............ 12

CONSTITUTIONS:

Constitution of the United States, Eleventh Amendment......7, 13

Constitution of the United States, Fourteenth Amendment.... 4

Constitution of Nevada, Art. IV, § 22........................0000-- 5,9, 10

STATUTES:

Nevada Revised Statute 41.031 et Seq..........-.---c-osecseeeeseeeeees 1,8

Nevada Revised Statute 11.250......................cccccccoccceeeseeeeeeees 7

MISCELLANEOUS:

C.J.S. Vol. 81, States, § 214-a, p. 1304...............c.-cscessseeneess 7

Jaffee, Suits against Governments and Officers: Sovereign

Femmmmalitn, TT TER Dig De 1 ..2o..n<-c.nceescecssnosneseeee 7, 8, 13

Mathis, The Eleventh Amendment: Adoption and Inter-

pretation, 2 Geo.L.Rev., Pp. 207.........-.0-c-.s-cseseees Se csataiaodh 13

=

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-489

CLARK COUNTY, A POLITICAL SUBDIVISION OF THE

STATE OF NEVADA, Petitioner,

Vv.

MARGARET TURNER, As LEGAL GUARDIAN OF LIONEL

EUGENE HOLLINS, YOLANDA K. HOLLINS anp

MARVAR ADAMS, Respondents.

BRIEF OF THE STATES OF NEVADA, ARIZONA,

COLORADO, CONNECTICUT, DELAWARE,

HAWAII, KENTUCKY, NEBRASKA, NORTH CARO-—

LINA, RHODE ISLAND, SOUTH CAROLINA, TEXAS,

UTAH, AND WASHINGTON, AS AMICI CURIAE IN

SUPPORT OF PETITION FOR WRIT OF CERTIO-—

RARI TO THE SUPREME COURT OF THE STATE

OF NEVADA

STATEMENT OF THE CASE

In 1965, the Nevada Legislature waived Nevada's and its

political subdivisions’ immunity from suit. Nevada Revised

Statute 41.031 et. seq. The Legislature further prescribed that

a claimant could not bring suit unless a timely notice of the claim

was filed with the State or political subdivision.

Thereafter, the Supreme Court of Nevada consistently upheld

these notice of claim requirements and developed a substantial

2

body of case law dealing with timeliness and substantial com-

pliance with the legislative scheme of waiver of immunity from

suit. (See Appendix A, page 28.)

Only eighteen months prior to its decision in Turner v. Staggs,

89 Nev. ...... , Advance Opinion 78, the Supreme Court of

Nevada unanimously upheld, in Derouen v. City of Reno, 87

Nev. 606, 491 P.2d 989, that there was no constitutional

restriction upon the Legislature’s power to restrict a right of

action. Against this background, Turner v. Staggs came before

the Court. The fabric of predictability of the law woven by

these prior and recent decisions came apart in 7 urner v. Staggs.

The decision in Turner v. Staggs is set forth in Appendix A.

The decision of the Supreme Court of Nevada voided as a

denial of equal protection Nevada's statutes requiring timely

presentment of claim as precondition to suing the state or its

political subdivisions.

The State of Nevada was not a party to the proceedings in

the Nevada Courts.! Consequently, Nevada had no knowledge

of the pendency before the Supreme Court of Nevada of the

constitutionality of the notice requirements of the claim statutes.

The constitutional challenge did not arise at trial but came up

during oral argument on appeal. Indeed, as the State reads the

opinion, the Nevada Supreme Court sua sponte questioned the

constitutionality of the claim statutes. The case was remanded to

the District Judge for determining their constitutionality. The

District Judge ruled that the Nevada Supreme Court’s upholding

of the validity of the claims statutes in recent decisions was prece-

. dent and obligatory upon him. The Supreme Court thereafter

5 rendered its decision without further oral argument.

'The case was not an action for declaratory judgment challenging

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4 the constitutionality of a state statute in which the attorney general is

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Although not a party, the State of. Nevada nonetheless moved

the Nevada Supreme Court for leave to file a petition in inter-

vention in the nature of a petition for rehearing.” Nevada's

motion and Clark County’s petition for rehearing were denied.

INTEREST OF AMICI CURIAE

The State of Nevada is in the uncommon, perhaps unparalled,

position of having one of its laws regulating a vital area of the

State’s relations with its citizens struck down without ever having

had an opportunity to present the State’s views and arguments on

behalf of the people to the Supreme Court of Nevada.

In short, the people of Nevada have been foreclosed access

to their own state court of last resort. They now look to the

Supreme Court of the United States for the opportunity to be

heard as amicus curiae on the constitutionality of the notice

requirements of the state claims statute.

Another more important interest of Nevada and its thirteen

sister states® appearing as amici curiae is the fundamental ques-

tion of whether a state legislature may prescribe conditions

precedent to suit against the state or its political subdivisions.

Underlying this inquiry is the consideration of the court-created

rule of governmental immunity from tort liability vis-a-vis the

legislatively-created rule of government immunity from suit as

they bear on the principle of separation of powers.

The concern of amici curiae further extends to the recent

trend of more and more state legislatures waiving the state's

immunity from suit, and the effect an unbridled decision such as

*Precedent for such a motion is Sun Oil Co. v. Burford, 130 F.2d

10, 19, reversed on other grounds. 319 U.S. 315.

‘Other states have expressed interest in filing briefs on the merits

as amicus curiae if certiorari is granted.

SPSL ERTIES

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Turner v. Staggs could have thereon. This immunity of the

states from suit has now been waived by some eleven States. In

so waiving, the legislatures have attached restrictive conditions

to be met by a citizen before a cause of action accrues against

the state.

The amici curiae strongly believe that the accelerated trend of

recent waivers of immunity from suit will be slowed, if not

reversed altogether, and more likely reinstated by state legisla-

tures, if a State cannot constitutionally classify itself differently

for purposes of suit where state treasury liability may be imposed.

Another grave infirmity of the Turner decision, and one which

the amici curiae view with marked apprehension, is the statement

of the majority opinion, Appendix A, page 22, that claims

statutes serve no beneficial use in our scheme of state government.

The implications this view bodes for the separation of powers

are, to say the least, disquieting.

ARGUMENT

1.

THE DECISION BELOW VOIDING A STATE STATUTE AS

A DENIAL OF EQUAL PROTECTION SHOULD BE

BASED ON APPLICABLE DECISIONS

OF THIS COURT.

The Supreme Court of Nevada grounds its decision in 7urner

v. Staggs upon a denial of the equal protection of the laws under

the Fourteenth Amendment. This basis of the majority’s decision

raises the more fundamental question of whether a state may,

without denying equal protection of the law, classify itself dif-

ferent from its citizens when waiving the state’s immunity from

suit.

Significantly, the majority proceeds to answer this pervasive

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question without citing or reviewing one decision of the Supreme

Court of the United States in support of its holding that the

statute offends the Equal Protection Clause.

Unquestionably, whenever a court, particularly a state court

of last resort, has before it an equal protection challenge to a

statute arising under the Constitution of the United States, the

court should turn for guidance to the pronouncements of the

United States Supreme Court on the constitutional provision in

question.

The majority opinion not only does not consider or apply

either the test of “strict judicial scrutiny” or “‘does the statute

rationally further some legitimate state interest”, San Antonio

Indep. Sch. Dist. v. Rodriguez, 1278, 1287, 1288 and

1300, the majority opinion does not apply any test or judicial

criteria. Instead, the majority relied on two Michigan decisions,

culminating in Reich v. State Highway Dept., 194 N.W.2d,

700. The Reich case is illustrative of the court abrogating the

court-created rule of government immunity from tort liability.

The Constitution of Nevada, as do the constitutions of most

states, authorizes the Legislature to provide for suit against the

state.* The waiver of immunity from suit is to be by law of gen-

eral application to everyone similarly situated with respect to the

state.

The scope of the Equal Protection Clause forbids a legisla-

ture to select any person and impose discrimination not cast upon

others similarly situated. Atchison, T. & S. F. Rwy. Co. v.

Matthews, 174 U.S. 96. And it is well settled that a state may

classify persons and objects for the purpose of legislation. Mr.

*“Provision may be made by general law for bringing suit against

the state as to all liabilities originating after the adoption of this Con-

stitution.” Article IV, Section 22.

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Justice Stewart, concurring with the majority in San Antonio

Indep. Sch. Dist. v. Rodriguez, 93 S.Ct. 1278, stated:

Unlike other provisions of the Constitution, the Equal Pro-

tection Clause confers no substantive rights and creates no

substantive liberties. The function of the Equal Protection

Clause, rather, is simply to measure the validity of classi-

fications created by state laws.

There is hardly a law on the books that does not affect

some people differently from others. But the basic concern

of the Equal Protection Clause is with state legislation

whose purpose or effect is to create discrete and objectively

identifiable classes. [Page 1310.]

Nowhere does the majority in Turner v. Staggs undertake a

review of the reasons for the Legislature’s classification of a

claimant’s right to sue private tort-feasors differently from his

right to sue governmental tort-feasors.

Nor does the majority approach the matter from the stand-

point of whether the Legislature can prescribe different treatment

for the accrual of, and bringing suit upon, a cause of action when

the government is the tort-feasor.

Nor does the majority examine whether minors have rights

under the United States Constitution different from adult citizens.

The Constitution of the United States does not give to minors

special rights beyond others. Vance v. Vance, 108 U.S. 514,

521. And yet the majority simply concludes that it is a denial of

equal protection to treat minors differently from others.

The majority opinion also fails to distinguish between the time

when a cause of action accrues against the state and the time

within which suit must be brought. This distinction is not aca-

demic as it is the timely notice of the claim by which the right to

sue accrues, and a cause of action is held to accrue only at the

time a suit may be maintained thereon. Friedman v. United

States, 310 F.2d 381, 385-386, cert. denied, 373 U.S. 932.

Mo

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7

Once a cause of action accrues, the period of limitation begins

to run. Missouri Pacific Rwy. v. Austin, 292 F.2d 415, and the

period is tolled by reason of a disability such as minority. Nevada

Revised Statute 11.250 provides for tolling of limitation of

action during minority.

Thus, for the purpose of when a cause of action accrues

against Nevada or its political subdivisions, minors are not

treated, nor classified, any differently at all. All citizens of

Nevada are in the same class, whether minors or adults.

But assuming, arguendo, that ‘the Nevada Legislature has

classified minors differently for purposes of accruing the right to

sue the state, then the majority should have considered if the

classification is so discriminatory or invidious as to deny minors

equal protection of the laws. But, instead, the majority concludes

that notice of claim requirements constitute a denial of equal

protection, not to minors only, but as applied to every potential

claimant.

ONLY THE LEGISLATURE MAY PRESCRIBE THE

CONDITIONS ON WHICH STATE MAY BE SUED.

The provisions of state constitutions authorizing suit against

the state recognize a fundamental attribute of a State’s sover-

eignty that it cannot be sued without consent of the state. The

doubts expressed in Chisholm v. Georgia, 2 U.S. (Dall.) 419,

as to whether a State of the United States was sovereign so as

to enjoy immunity from suit were laid to rest by adoption of the

Eleventh Amendment. Jaffe, Suits Against Governments and

Officers: Sovereign Immunity, 77 Har.L.Rev., pp. 19-20. These

constitutional provisions have generally been held not to be self-

executing and no suit may be maintained until the legislature

provides therefor. 81 C.J.S., States, Section 214-a, p. 1304.

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viPhe: Nevada Legislaturehas, by: enacting NRS 41.031 et.

deq., provided by law for suit against the State and has required

the giving of notice of claims by potential suitors. The -majority

opinion does not share the Legislature's view that the claim stat-

utes are needful and would read into the State Constitution’ the

“Supreme Court may by decision provide for suit against the

State.”” This view of the majority nullifies a power delegated to

the Legislature by the people—a power to decide for the people

what is best or is wise and expedient policy. An earlier Supreme

Court of Nevada observed in Hess v. Pegg, 7 Nev. 23, 31, the

solution to impolitic or unwise laws lies “in the more careful

selection of the members of that branch of state government to

which they have . . . . vested the Legislative authority of this

state.”

To be sure, the majority in Turner v. Staggs may have abro-

gated the notice of claim requirements from a failure to distin-

guish governmental immunity from tort liability with sovereign

immunity from suit although neither doctrine is discussed. The

two doctrines are distinct and unrelated. Apfelbacher v. State,

152 N.W. 144; Holytz v. City of Milwaukee, 115 N.W.2d

618; Muskoph v. Corning Hosp. Dist., 11 Cal.Rptr., 89, 359

P.2d, 457, 460; Jaffe, Har.L.Rev. pp. 3-4, supra.

The doctrine of governmental immunity from tort liability had

~ its genesis in the court-created doctrine that “the King could do

no wrong” and since it was created by the court, it could be

abolished by the Court: Pierce v. Yakima Valley Mem. Hosp.

Assn., 260 P.2d, 765, Muskoph v. Corning Hosp. Dist., supra,

Holytz v. City of Milwaukee, supra, McAndrews v. Mularchuk,

162 A.2d 820, 832.

The doctrine of sovereign immunity from suit exists in Nevada

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and in most states not as a creation of courts, but as a constitu-

‘tional principle chosen by the people and subject a

by amendment adopted by: the people. han

_. Aequiescense in the majority's viewpoint that it decides what

is beneficial and best serves the people effectively enjoins the

Nevada Legislature from discharging its constitutional. authority

to prescribe by general law for suits against the state. And it

would avail the State nothing if the Legislature were again to

pass another notice statute as long as the Supreme Court of

Nevada persists in the premise that it can prescribe the terms and

conditions upon which the State may be sued.

THE EFFECT OF THE DECISION BELOW RENDERS

PROVISION OF NEVADA CONSTITUTION INOP-

ERATIVE AS CONTRAVENING THE

EQUAL PROTECTION CLAUSE.

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| In waiving sovereign immunity from suit, the Nevada Legis-

lature acted pursuant to constitutional authority to do so set

forth in Article IV, Section 22. Consistent with this mandate,

the Legislature enacted a general law applicable to everyone

having a claim against the State. No exceptions or restrictions

pertaining to special or favored persons or classes were enacted

or prescribed.

The Legislature did set the State and its political subdivisions

apart from private tort-feasors by prescribing procedural steps to

be followed precedent to claimants’ right to maintain a suit

against the State.

One procedural step is the requirement of timely filing a notice

of the particulars of a claim with the State or political subdivision.

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It is this requirement the majority in Turner v. Staggs voided as a

denial of equal protection.

Other restrictions on the right to sue the State were imposed

by the Legislature such as limiting the liability of the State to

$25,000.00 per claimant, prohibiting awards of punitive dam-

ages or interest, establishing exceptions to liability when acting

in a discretionary capacity or acting pursuant to statute or regu-

lations and others.

The majority's statement in Turner v. Staggs, that claims stat-

utes serve no beneficial use within the scheme of state govern-

ment is at war with the keystone of representative government in

America, i.e., the principle of separation of powers. The state-

ment, if left standing, nullifies Section 22 of Article IV of the

Nevada Constitution and serves as precedent for nullification of

similar constitutional provisions of other states providing that the

Legislature may authorize suit against the State.

If the majority is correct in its holding that one restriction is

a denial of equal protection because claimants having claims

against private tort-feasors are not similarly restricted, then it is

a short step to voiding all conditions precedent which the Leg-

islature deemed necessary to protect the State against financial

irresponsibility of unlimited suit against the State. Turner vy.

Staggs sets the stage upon which courts will soon act to invali-

_ date the Legislature’s constitutional perogative of providing for

» suit.

There can be no doubt that Section 22, Article IV, of the

Constitution of Nevada has been negated effectively as though

it were excised and transferred to the Article enumerating the

powers of the judicial department.

Thus, it is the will of the people, not merely as expressed in

- statute, but as expressed in the organic document of Nevada

government, its Constitution, that is set aside.

Brite tarp net Serenne onions

Whenever a state court boldly assumes the legislative power of

deciding the wisdom or expediency of legislation then review by

certiorari is the only available means of preserving the powers of

each of the three branches of government in some semblance of

equilibrium. The amici curiae earnestly submit that this is a case

for review by certiorari.

As Justice Brennan, dissenting in Reich v. State Highway

Dept., 194 N.W.2d, 700, supra, prophetically observed:

The process of judicial repeal of legislative enactmenis set

in motion with this decision will run as far as judicial caprice

will carry it. It will now be the fashion for judges to throw

out all differentials in statutes of limitations. * * * There

is no limitation, it seems, to the ingenuity of judges who

disagree with the legislature. What a pity that the Ameri-

can experiment in self-government has in 200 years fallen

upon such bad times. [Page 703.]

Indeed, the Reich decision, aside from its being embraced in

Turner v. Staggs, has been cited by another jurisdiction, W hit-

field v. Roth, 107 Cal.Rptr. 207. There, the Court heeded

Justice Brennan's admonition, saying:

On the other hand, there is a good deal to be said for the

proposition that judicial repeal of legislation through the

elastic expedient of the constitutional concept of equal pro-

tection of the laws is hazardous. While the executive and

legislative branches are directly answerable to the electorate

and are thereby prevented from ignoring the doctrine of

separation of powers, the judicial branch, particularly at the

appellate level, is generally not so restricted. Therefore, the

full vitality of the doctrine, as envisaged by the founding

fathers, is, to a very great extent, dependent upon the

scrupulous and conscientious self-imposed discipline of

judicial restraint. [See Reich v. State Highway Dept.,

supra, 194 N.W.2d 700, p. 703, dissenting opinion of

Brennan, J.]

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TION CLAUSE TO PROVISION OF

STATE CONSTITUTION

“The « decision i in — v. Staggs exceeds ne bounds of judi

cial restraint which Whitfield v. Roth, supra, so aptly discerned

and stayed within. The majority states that it could dispose of the

case on the grounds rights of a minor were involved and would

excuse compliance with the notice requirement. Appendix A, page

25. The Supeme Court of California did stop at this juncture in

Williams v. L.A. Metropolitan Trans. Auth., 440 P.2d 497,

when it held the six months’ limitation period after rejection of a

claim was tolled during minority.

However, the Nevada Supreme Court chose not to decide

the case on these grounds, but went far beyond the necessities of

the case. In so doing, the majority opinion fell into the unacus-

tomed, and certainly unserving, role of legislating. One is hard

put to conclude other than its straying beyond these limits was

not inadvertent.

It is also apparent that the majority opinion in Turner v. Staggs

is an abrupt departure from the historic posture and treatment

of constitutional issues by an appellate court.

As noted, the State was not a party to the proceedings, and

the question of constitutionality under the equal protection clause

was raised by the Court itself. Secondly, after the Court stated

it could decide the appeal on more narrow grounds, i.e., the

involvement of minor’s rights, the Court proceeded anyway to

decide the equal protection question.

Next, it did not decide whether minors were denied equal

protection but decided all persons, without classification, were

13

denied equal protection. And finally, the Court voided the stat-

utes without resort whatsoever to the pronouncements of the

Supreme Court of the United States in securing the guarantees

of equal protection.

Moreover, the majority abandoned decisions of the Supreme

Court of Nevada which for one hundred years continually hewed

to the mold of Gibson v. Mason, 5 Nev. 283-294-295, holding

the power to legislate necessarily carried with it the right to

determine expediency, wisdom and justice of law, and courts

have no power to annul or set aside a statute because of consid-

erations of natural justice, wisdom or expediency.

Vv.

PRECEDENT OF THE DECISION BELOW WILL BE

COUNTER-PRODUCTIVE TO THE TREND OF

STATES TO WAIVE THEIR IMMUNITY

FROM SUIT.

Each state enjoys immunity from suit except that portion

delegated to the national government, and partly returned to it

by the Eleventh Amendment.

Some Courts, beginning with Chisholm v. Georgia, supra, legal

writers, and journals, have criticized the doctrine of state immun-

ity from suit as incompatible with popular sovereignty vis-a-vis

a regal sovereignty. Some authorities have questioned whether

the doctrine ever really existed at common law except in name

only.®

These criticisms aside however, the doctrine of state immun-

ity from suit has enjoyed a viable existence in the United States.

‘Jaffe, Suits Against Governments And Officers: Sovereign Immun-

ity, 77 Har. L. Rev. 1; Mathis, The Eleventh Amendment: Adoption

and Interpretation. 2 Georgia L. Rev. p. 207-209.

20 II LOLI AERIAL ALIA IE ABI AA IELTS

«414

Although in recent times, many state Legislatures have enacted

statutes pursuant to state constitution waiving immunity from suit.

These waivers are generally conditioned upon measures deemed

by the Legislature necessary to limit liability and unlimited

financial drain on the state treasury. It cannot be seriously main-

tained that it is not the perogrative of the Legislature to impose

restrictions upon the right to sue the state.

It is well settled that the United States is ordinarily immune

from suit and that there is no question of the power of Congress

to define the limits of its waiver of sovereign immunity. Kendall

v. United States, 107 U.S. 123; United States v. Sherwood,

312 U.S. 584. Crown Coat Front Co. v. United States, 386

U.S. 503, 520.

A decision as the one in question which strips the Legislature

; of its constitutional perogative on an undemonstrated conflict

with the United States Constitution can only be regarded with

grave misgivings by those mindful of the delicate balance of

powers among the three branches of government.

There can be little doubt that Turner v. Staggs, left

unchecked, and its progeny sure to follow, will give those states

which have not waived their immunity ample reason to pause

and reflect upon the consequences of doing so. Prospects of the

state treasury being held in no more regard than the pocketbook

of any of its citizens is chilling indeed to those states which have

conditionally permitted suit. It would not be surprising to find

these states taking another look at their previously-supposed

enlightened approach of allewing their citizens a remedy, albeit

a limited one, when wronged by the state.

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CONCLUSION

For the foregoing reasons, we respectfully submit this is a case

most providently suited for review by this Court and the petition

for certiorari should be granted.

Respectfully submitted,

PN LOE ELEY: SOME I

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ROBERT LIsT ROBERT MORGAN

Attorney General Attorney General

James H. THOMPSON State of North Carolina

Chief Deputy Attorney

RICHARD J. ISRAEL

Attorney General

W. SLATER ALLEN, Jr.

General

State of Nevada

Gary K. NELSON Assistant Attorney General

Attorney General State of Rhode Island and

State of Arizona Providence Plantations

JOHN P. Moore DANIEL R. McLEop

Attorney General Attorney General

State of Colorado C. ToLBerT Gootssy, Jr.

Deputy Attorney General

RoBeRT K. KILLIAN State of South Carolina

Attorney General

State of Connecticut Joun L. HILe

Att G 1

W. LAIRD STABLER, JR. ‘Seseiteus

Attorney General

State of Delaware VERNON B. ROMNEY

Attorney General

GEORGE Pal State of Utah

Attorney General

State of Hawaii SLADE GORTON

Attorney General

ANGELO R. PETRUSS

Assistant Attorney General

State of Washington

Ep. W. HANCOCK

Attorney General

Commonwealth of Kentucky

CLARENCE A. H. MEYER

Attorney General

State of Nebraska

Attorneys for Amici Curiae

Shes UTES TAS Ra ANE ATES AEE LAT

16

APPENDIX A

89 Nev., Advance Opinion 78

IN THE SUPEME COURT OF THE

STATE OF NEVADA

MARGARET TURNER, as LEGAL GUARDIAN OF LIONEL

EUGENE HOLLINS, YOLANDA K. HOLLINS anp

MARVAR ADAMS, APPELLANT, v. JACK STAGGS,

DR. H. Q. ADAMS anp CLARK COUNTY, REsPoND-—

ENTS.

No. 6770

June 6, 1973

Appeal from summary judgment, judgment of dismissal and

judgment entered pursuant to a jury verdict. Eighth Judicial Dis-

trict Court, Clark County; Joseph S. Pavlikowski, and Howard

W. Babcock, Judges.

Affirmed in part; reversed and remanded in part.

THOMPSON, C. J., and Mowsray, J., dissented in part.

Charles L. Kellar, of Las Vegas, for Appellant.

Beckley, DeLanoy & Jemison, of Las Vegas, for Respond-

ents Jack Staggs and Clark County.

James F. Pico, of Las Vegas, for Respondent Dr. H. Q.

Adams.

OPINION

By the Court, BATJER, J.:

On October 1, 1966, Barbara Adams was admitted to the

Southern Nevada Memorial Hospital with a chronic kidney

infection and hypertensive cardiovascular disease, and she was

discharged on October 14, 1966. She was readmitted and again

discharged November 14, 1966, with the understanding that

she would be transferred to Los Angeles, California, for further

treatment. Three days later she became ill and died while being

transported by ambulance to the hospital. James Y. Clarke, M.D.,

BRR ee ertticcgeeenuenmumrenc macnn emt penis eet ¢

EA AEE I DITA Ca Me pl a THES

17

who performed the postmortem examination, diagnosed the

immediate cause of death to be pulmonary edema and congestion

due to probable acute renal insufficiency with uremia and elec-

trolyte imbalance.

A claim was filed on behalf of the minor children of Barbara

Adams with the Board of County Commissioners of Clark

County, Nevada, on November 2, 1967. After rejection of the

claim a complaint was filed on December 21, 1967, by Margaret

Turner, as legal guardian for the minors’ against the Clark

County Board of Commissioners, Southern Nevada Memorial

Hospital,’ Jack Staggs, Administrator thereof, Clark County and

Dr. H. Q. Adams, for the wrongful death of Barbara Adams.

The cause of action against the board of county commis-

sioners in their individual capacity was dismissed by summary

judgment dated January 13, 1970, and no appeal has been

taken from that judgment. The complaint against Clark County

was dismissed on motion for summary judgment on August 6,

1971, for failure to present a timely claim pursuant to NRS

244.245 and NRS 244.250.* See also, NRS 41.031 and NRS

‘In her answer to interrogatories subscribed and sworn to on Febru-

ary 23, 1968, and filed in this action on February 25, 1968, Margaret

Turner alleges that she was appointed the legal guardian of the minors by

the Eighth Judicial District Court; however, this court finds nothing in the

record before it to verify that allegation.

*This court has held that county hospitals, established pursuant to stat-

utory authority [NRS 450. et seq.], are without legal entity, and thus not

subject to suit for tort. Bloom v. So. Nev. Hospital, 70 Nev. 533, 275

P.2d 885 (1954); McKay v. Washoe General Hospital, 55 Nev. 336, 33

P.2d 755 (1934). Thus, the dismissal of Southern Nevada Memorial Hos-

pital from the suit appears to have been mandated by this court's prior

decisions.

"NRS 244.245: “1. No person shall sue a county in any case for any

demand, unless he shall first present his claim or demand to the board of

county commissioners and the county auditor for allowance and approval,

and if they fail or refuse to allow the same, or some part thereof, the per-

son feeling aggrieved may sue the county.

“2. If the party suing recover in the action more than the board

allowed, or offered to allow, the board and the county auditor shall allow

the amount of the judgment and costs as a just claim against the county.

If the party suing shall not recover more than the board and the county

auditor shall have offered to allow him, then costs shall be recovered

against him by the county, and may be deducted from the demand.”

NRS 244.250: “1. All unaudited claims or accounts against any county

shall be presented to the board of county commissioners within 6 months

from the time such claims or accounts become due or payable.

“2. No claim or account against any county shall be audited, allowed

EERE ELE TIPE ED TOES OLR EI,

ae E>: be * i —- -

SORTA LEAT IN

18

41.036. On August 25, 1971, the complaint against Jack

was dismissed pursuant to NRCP 41(b). A trial was

held on the alleged malpractice of Dr. H. Q. Adams and the

jury returned a defense verdict.

In this appeal it is contended that the district court erred

(1) in granting summary judgment in favor of Clark County

and its hospital; (2) in dismissing the complaint against Jack

Staggs as administrator of Southern Nevada Memorial Hos-

pital;* and (3) in giving certain instructions to the jury.

1. We cannot consider issues 2 and 3 because we have not

been favored with a transcript of the proceedings in the district

court, nor has the appellant submitted a settled and approved

statement of the evidence or proceedings. NRCP 75(n).

2. We direct our attention to the summary judgment. The

) claim against Clark County was not filed until 13 months had

elapsed after the death of Barbara Adams. NRS 244.250

requires that a claim against a county must be filed within 6

months after a cause of action arises.

In Barney v. County of Clark, 80 Nev. 104, 389 P.2d 392

(1964), this court held that the timely filing of a claim was a

condition precedent to the commencement of an action against

a county. Barney relied upon the reasoning in Artukovich v.

Astendorf, 131 P.2d 831 (Cal. 1942). Artukovich in turn

relied in part on the principle that neither the state nor any

‘ of its political subdivisions may be sued in the absence of spe-

cific statutory permission. In 1965 the State of Nevada, acting

through its legislature, waived its immunity from liability and

action and consented to have its liability determined in accord-

ance with the same rules of law as are applied to civil actions

against individuals and corporations. Stats. of Nev., 1965, ch.

505, p. 1413, codified as NRS 41.031. Furthermore the enact-

ment placed all political subdivisions in a similar position. NRS

41.031.°

a ae REAL Ct

RAAT ree

or paid by the board of eo ‘aty commissioners, or any other officer of the

county, unless the provisions of subsection 1 are strictly complied with.”

‘In Hughey v. Washoe County, 73 Nev. 22, 306 P.2d 1115 (1957),

this court held that a county is the party legally responsible for the obli-

gations of a county hospital. Under the doctrine of respondeat superior, it

would appear that dismissal of the complaint against Jack Staggs, Admin-

istrator of the Southern Nevada Memorial Hospital, was proper.

*"NRS 41.031: “The State of Nevada hereby waives its immunity from

liability and action and hereby consents to have its liability determined in

accordance with the same rules of law as are applied to civil actions

i Sa Oetts PONY RITE oN RCA URN RY Ces gmap:

19

The requirement of giving notice presupposes the existence

of an individual capable of giving it. McCrary v. City of

Odessa, 482 S.W.2d 151 (Tex. 1972). To hold otherwise

would be to disregard reality. Cf. Walgreen Co. v. Industrial

Commission, 153 N.E. 831 (Ill. 1926); Lineberry v. Town of

Mebane, 13 S.E.2d 429 (N.C. 1941). NRS 244.245 contains

no provision for the filing of a claim by anyone other than the

claimant. At the time of their mother’s death the minor chil-

dren were between the ages of 5 and 13 years. In many juris- ,

dictions children of tender years, because they are powerless to

act, have been excused from compliance with notice provi-

sions. Simpson v. City of Abilene, 388 S.W.2d 760 (Tex.Civ.

App. 1965), (7 years old). See also, City of Barnesville v.

Powell, 183 S.E.2d 55 (Ga.App. 1971), (4 years old);

McDonald v. City of Spring Valley, 120 N.E. 476 (Ill. 1918),

(7 years old); Lazich v. Belanger, 105 P.2d 738 (Mont.

1940), (7 years old); Murphy v. Village of Ft. Edward, 107

N.E. 716 (N.Y. 1915), (5 years old); Webster v. City of

Charlotte, 22 S.E.2d 900 (N.C. 1942), (8 years old); 18 E.

McQuillin, The Law of Municipal Corporations § 53.159 (3rd

rev. ed. 1963).

We could conclude that minority alone will excuse compli-

ance with the notice requirements of NRS 244.245 and NRS

244.250 (City of Houston v. Bergstrom, 468 S.W.2d 588

(Tex.Civ.App. 1971); McCrary v. City of Odessa, supra; Gru-

baugh v. City of St. Johns, 180 N.W.2d 778 (Mich. 1970))

and dispose of this case upon the ground that the notice

requirements of our claim statutes violate the rights of these

minors to due process guaranteed by the Fourteenth Amend-

ment of the United States Constitution. However, we believe

that the notice of claim requirements found in NRS 244.245

against individuals and corporations, except as otherwise proved in NRS

41.032 to 41.038. inclusive, provided the claimant complies with the lim-

itations of NRS 41.032 to 41.036, inclusive, or the limitations of NRS

41.010. The State of Nevada further waives the immunity from liability

and action of all political subdivisions of the state, and their liability shal!

be determined in the same manner, except as otherwise provided ' NRS

41.032 to 41.036, inclusive, provided the claimant complies with the lim-

itations of NRS 41.032 to 41.036, inclusive. An action may be brought

under this section against the State of Nevada, any agency of the state, or

any political subdivision of the state. In an action against the state or any

agency of the state, the State of Nevada shall be named as defendant, and

the summons shall be served upon the secretary of state.” [Emphasis

added.]

ae

-

ee

¥

20

and ‘NRS. 244.250 ‘as applied to governmental torts deny equal

protection guaranteed by the United States Constitution.’ -

Within our present scheme of government, claim statutes

serve no real beneficial use. (Grubaugh v. City of St. Johns,

supra) but they are indeed a trap for the unwary. NRS

41.038(1). If we follow Barney, the minor’s cause of action

will be barred. They will be precluded from enforcing a liabil-

ity’ created by statute for their benefit. Such construction of

NRS 244.245 creates invidious discrimination and amounts to

a denial of due process and equal protection of the law.

‘The court in Artukovich claims to have been following the

“great weight of authority,” and that may have been true in

1942, but since then, many jurisdictions have limited or aban-

doned the doctrine of sovereign immunity, either by legisla-

tive enactments or judicial decisions. Likewise, claim statutes

have been found to violate the equal protection provision of

the Fourteenth Amendment of the United States Constitution

and have been declared unconstitutional. Reich v. State High-

way Department, i194 N.W.2d 700 (Mich. 1972); Friedman

v. Farmington Township School District, 198 N.W.2d 785

(Mich.App. 1972); Crook v. Patterson, 201 N.W.2d 676

(Mich.App. 1972).

The stated object of NRS 41.031 is to waive the immunity

of governmental units and agencies from liability for injuries

caused by their negligent conduct, thus putting them on an

equal footing with private tort-feasors. However, the notice

provisions of NRS 244.245 and NRS 244.250 have the effect

of arbitrarily dividing all tort-feasors into classes of tort-

feasors: (1) private tort-feasors to whom no notice of claim is

owed and (2) governmental tort-feasors to whom notice is

owed.

In Reich v. State Highway Dept., supra, the Michigan

Supreme Court said: “This diverse treatment of members of a

class along the lines of governmental or private tort-feasors

bears no reasonable relationship under today’s circumstances

to the recognized purpose of the act. It constitutes an arbitrary

*The question of constitutionality of the claim statute was not properly

raised before this court, and had not been ruled upon below. After the

question was urged in oral argument we remanded the case to the trial

court for a decision on that issue. The briefs filed on remand did not con-

vince the lower court that Barney v. County of Clark, supra, need be

reviewed as to that point. We deem otherwise.

oo ANIA REN NT NY CI NER Nene RRONRN ENE CCEA ren » ie

WOR rn ae a

21

and unreasonable variance in the treatment of both

of can notte ctu -anb ty tonslonn, Sere Sy.to0 Somat

tional guarantees of equal protection.

“Just as the notice requirement by its operation divides the

natural class of negligent tort-feasors, so too the natural class

of victims of negligent conduct is also arbitrarily split into two

subclasses; victims of governmental negligence who must meet

requirement, and victims of private negligence who are subject

to no such requirement.” 194 N.W.2d at 702.

Contrary to the mandate of Art. 8, § 5 of the Nevada Con-

stitution’ and the intention of the legislature to place victims

of negligent conduct on equal footing (NRS 41.031), failure

to give the 6 month statutory notice arbitrarily bars the victims

of governmental tort while the victims of private tort suffer no

such bar.

Such arbitrary treatment clearly violates the equal protection

guarantees of the United States Constitution. See Art. 1, § 2,

Nevada Constitution.

The statutory provisions of this state which provide that no

person shall sue a governmental entity of this state for a

demand arising out of governmental tort unless they first pre-

sent a claim within 6 months from the time such tort occurred

are void and of no effect.

The judgment of the district court dismissing the complaint

against Clark County is reversed and the cause is remanded for

further proceedings.

The judgment dismissing the complaint against Jack Staggs

and the judgment entered in favor of H. Q. Adams, pursu-

ant to a jury verdict, are affirmed.

GUNDERSON, J., concurs.

ZENOFF, J., concurring:

I agree with Justices Batjer and Gunderson that the ques-

tioned statute is unconstitutional. I add, however, my addi-

tional thoughts for I believe that we can consider this case and

reach the same result for the further reasons stated. For the

In Lincoln County v. Luning, 133 U.S. 529, 531 (1890), the High

Court, specifically referring to Art. 8, § 5, of the Nevada Constitution,

held: “[T]hat this section is not to be limited to private corporations is

evident not alone from the generality of its language and from the title of

the article, but also from several sections therein in which municipal cor-

porations are expressly named.”

Ags PATROL TVS TI NOIRE, TOA LTP IE PND Sr a eemnene oer or gs

oe OE TTT

—- “alt eta 5

8S ele ae at te CP Pe Ge

22

purpose of these stated reasons I respectfully recite the facts in

my own manner in order to provide the posture which will be

explained.

A complaint was filed December 21, 1967 against the Clark

County missioners, Southern Nevada Memorial Hospital,

Jack Staggs, Administrator thereof, and Dr. H. Q. Adams, for

the wrongful death of one Barbara Adams, mother of the real

minor plaintiffs by their legal guardian.

Barbara Adams was admitted to the hospital on October 1,

1966 with chronic kidney infection and hypertensive cardio-

vascular disease; she was discharged on October 14, 1966. A

second time she was admitted; she was discharged November

14, 1966 in an improved condition with the understanding that

she would be transferred to Los Angeles for further treatment.

Three days later she became ill and died while being trans-

ported by ambulance to the hospital. The postmortem exam-

ination by Dr. Clarke attributed the immediate cause of death

to be pulmonary edema and congestion due to probable acute

renal insufficiency with uremia and electrolyte imbalance. Bar-

bara was pronounced dead on arrival at the hospital on

November 17, 1966.

A claim was filed on behalf of the minor children of Barbara

with the appropriate county board on November 2, 1967.

After rejection, a civil action against the respondents and

others was commenced on December 21, 1967.

The claim against the county commissioners in their indi-

vidual capacity was dismissed by summary judgment dated

January 13, 1970 and the action against Clark County was

dismissed on motion for summary judgment on August 6, 1971

for failure to present a timely claim pursuant to NRS 244,245

and NRS 244.250.’ On August 25, 1971, a dismissal pursuant

to NRCP 41(b) was entered as to Jack Staggs. A trial was had

'244.245 Condition precedent to suit against county for claim.

1. No person shall sue a county in any case for any demand, unless

he shall first present his claim or demand to the board of county commis-

sioners and the county auditor for allowance and approval, and if they

fail or refuse to allow the same, or some part thereof, the person feeling

aggrieved may sue the county,

. If the party suing recover in the action more than the board

allowed, or offered to allow, the board and the county auditor shall allow

the amount of the judgment and costs as a just claim against the county,

If the party suing shall not recover more than the board and the county

OSs CRE

23

as to the alleged malpractice of Dr. H. Q. Adams wherein the

jury returned a defense verdict.

Three main issues were raised for my consideration.’

1. Did the court err in granting summary judgment as to

Clark County and its hospital?

2. Did the court err in dismissing the claim against Jack

Stages as Administrator of Nevada Southern Memorial Hos-

ital?

: 3. Did the court err in giving certain instructions to the

ury?

We have no transcript presented to us, thus I cannot con-

sider Issues 2 and 3. The central issue now is directed to the

first point.

1. I glean from this record that the deceased was black,

sick and impoverished when she died leaving three children in

their early minority. The claim against the county and the hos-

pital was not filed for 13 months after her death. NRS 244.250

requires that a claim against a county must be filed within 6

months and under Barney v. County of Clark, 80 Nev. 104,

389 P.2d 392 (1964), a claim must be filed as a condition

precedent to the commencement of an action against the

county. That case was founded upon Artukovich v. Astendorf,

131 P.2d 831 (Cal. 1942), which marked by a spirited divi-

sion of the California Supreme Court (4-3) affirmed the estab-

lished weight of authority that an action against a public entity

cannot be filed even by a minor unless the claim statute, if

there be one, is first observed.

This case, however, poses a different problem. A claim was

filed but not within the statutory 6 months. No reason is given

auditor shall have offered to allow him, then costs shall be recovered

against him by the county, and may be deducted from the demand,

244,250 Unaudited claims to be presented within 6 months,

1, All unaudited claims or accounts against any county shall be pre-

sented to the board of county commissioners within 6 months from the

time such claims or accounts become due or payable,

2. No claim or account against any county shall be audited, allowed

or paid by the board of county commissioners, or any other officer of the

county, unless the provisions of subsection | are strictly complied with,

"The question of the constitutionality of the claim statute was not

properly raised before this court, and had not been ruled upon below, We

therefore remanded the case to the trial court for a decision on that

issue, The briefs filed on remand did not convince the lower court that

Barney v, County of Clark, infra, need be reviewed as to that point,

ef

3

:

i

:

z

i

, Supra, and I therefore

feel compelled to maintain the continuity established by the

respected a Court of California. That court later estab-

iams v. Los Angeles Metropolitan Transit Auth.,

440 P.2d 497 (Cal. 1968), that where the filing of a claim in

advance of suit is required, that requirement is suspended dur-

ing the period of minority if the action is “mentioned” in the

limitation statute as one the person could bring. It is so men-

tioned in Nevada's statutes, NRS 41.036(3)" and NRS

11,190(5)(b).*

In Williams v. Los Angeles Metropolitan Transit Auth.,

supra, the plaintiff filed the required claim within the prescribed

time but failed to file his action against the public entity within

the 6 months required after rejection of the claim. I accept, by

analogy, the holding in Williams v. Los Angeles Metropolitan

Transit Auth., supra, since California's tolling statute during

minority is the same as ours.

2. Iam not disturbed by the language of Barney v. County

of Clark, supra, which emphasizes timely filing since the question

2

i

*41.036(3):

3. Every claim against any other political subdivision of the state

shall be presented, within 6 months from the time the cause of action

accrues, to the governing body of that political subdivision. No action

may be brought unless the governing body refuses to approve or fails

within 90 days to act upon the claim.

*11,190(5)(b): Periods of limitations prescribed. Actions other than

those for the recovery of real property, unless further limited by NRS

11.205 or by or pursuant to the Uniform Commercial Code, can only be

commenced as follows:

5. ‘Within 1 year:

(b) Actions or claims against a county, incorporated city, town or

other political subdivision of the state which have been rejected by the

board of county commissioners, city council or other governing body, as

the case may be, after the first rejection thereof by such board, city

council or other governing body, or the expiration of the time limited for

failure to act by subsection 3 of NRS 41.036.

Oreo nme nen

25

of timeliness was not an issue in that case any

Kelleher v. Ephrata School District, 355 P.2d 989

1960), cited therein. The point involved in both cases was

whether a claim must be at all, Timeliness was not the

question.

3. Nor am I concerned with the fine-line distinction of

whether the claim statute is a statute of limitation or a proce-

dural roadblock as a condition precedent to suit. That question

was considered in Myers v. Stevenson, 270 P.2d 885, 889 (Cal.

App. 1954), and discarded as not being controlling as to the

merits of the case. The trend is to construe statutes in such man-

ner as to effectuate the long-recognized — e that children

are to be protected during their minority from the destruction of

their rights by the running of the statutes of limitation. Williams

v. Los Angeles Metropolitan Transit Auth., supra; Los Angeles

City School District v. Superior Court, 88 Cal.Rptr. 286 (Cal.

App. 1970). The majority will argue that the Williams case,

supra, does not apply, that there is a difference between a statute

of limitation and a condition precedent to suit. The minors here

are entitled to the benefits of the tolling statute. Whether the

claim statute be called a statute of limitations or a condition

precedent is of no moment. A review of other authorities reflects

the foretold positive trend against the rigidity of the claim stat-

utes, particularly as they affect the rights of minors.

THOMPSON, C, J., with whom Mowsray, J., agrees, dissenting

in part:

I would affirm the summary judgment for Clark County and,

therefore, dissent from that aspect of the Court's opinion.

1. The timely filing of claims with the Board of County

Commissioners is a precondition to the existence of a cause of

action against the County. Barney v. County of Clark, 80 Nev.

104, 389 P.2d 392 (1964). The minority of the children of the

decedent does not excuse noncompliance nor extend the time for

compliance, since proper claims could have been timely filed by

their legal representative. Although it is true that the period of

disability of a minor shall not be part of the time limited for the

commencement of an action, NRS 11.250; Parker v. Chrysler

Motors Corp., 88 Nev. 560, 502 P.2d 111 (1972), that provi-

sion applies only when considering the affirmative defense of the

statute of limitations, and does not bear upon the duty of minor

claimants through their legal representative, to timely file their

claims as a condition precedent to the existence of a cause of

Be

26

action. As noted in Barney v. County of Clark, supra, “[w]e are

not concerned therefore with a statute in the nature of a statute

of limitations; rather we are concerned with the performance of a

necessary condition precedent to suit.” Id. at 106.

2. The majority opinion voids all statutes precluding suit

against a governmental entity for any tort demand unless a claim

is first presented. This sweeping declaration nullified NRS

41.036, NRS 244.245 to 244.255, NRS 268.020 and, perhaps,

others. Barney v. County of Clark, supra, and Hart v. City of

Las Vegas, 73 Nev. 29, 307 P.2d 617 (1957), are silently over-

ruled. Moreover, it renders meaningless, so far as a claim statute

is concerned, a substantial body of case law dealing with time-

liness and substantial compliance with the intendment of the

statute. Derouen v. City of Reno, 87 Nev. 606, 491 P.2d 989

(1971); Kaminski v. Woodbury, 85 Nev. 667, 462 P.2d 45

(1969); City of Boulder City v. Miles, 85 Nev. 46, 449 P.2d

1003 (1969): Rogers v. State, 85 Nev. 361, 445 P.2d 172

(1969); Rice v. Clark County, 79 Nev. 253, 382 P.2d 605

(1963); City of Reno v. Fields, 69 Nev. 300, 250 P.2d 140

(1952), and Las Vegas v. Schultz, 59 Nev. 1, 83 P.2d 1040

(1938). These cases preserved the integrity of the legislative

scheme and at the same time honored the rights of claimants who

had met the underlying purposes of the statute. Their rights were

not denied for technical or insubstantial reasons. Whenever a

sensible explanation was offered for failing to comply with a

claim statute requirement, that explanation was accepted.

It is not per se bad for a court to set aside statutes and ignore

case precedent. It is, however, conduct calling for extreme cau-

tion. Solid reasons must exist. I perceive no such reasons in the

matter at hand. The majority of this Court find that claim stat-

utes violate the command of the Equal Protection Clause of the

Federal Constitution. With due deference, I suggest that the

Equal Protection Clause does not bear upon the matter.

The legislature has a wide discretion to enact laws which

affect some groups of citizens differently than others. A statutory

discrimination will not be set aside if any state of facts reason-

ably may be conceived to justify it. McGowan v. United States,

366 U.S. 420 (1961). The purpose of a claim statute is to

enable the governmental agency to make an early investigation of

the claim, of the claimant, and to marshal evidence promptly at

a time when it is possible to do so. City of Reno v. Fields, 69

Nev. 300, 250 P.2d 140 (1952); Brown v. Board of Trustees,

27

Etc., 104 N.E.2d 866 (N.Y. 1952). This purpose surely is rea-

sonable and not an arbitrary exercise of legislative power. I can-

not find it to be irrational nonsense.

All persons injured through the negligence of the state or its

political subdivisions have been granted the right to bring suit

(except where immunity is retained) and this right is granted

equally and without discrimination on any basis whatsoever.

NRS 41.031; State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970).

This is equality under the same conditions and among persons

similarly situated. Boyne v. State ex rel. Dickerson, 80 Nev. 160,

390 P.2d 225 (1964). And, contrary to the view of the majority,

the Equal Protection Clause does not requise equal treatment of

private persons and the State. Tustin Heigiits Ass’n. v. Board of

Supervisors, 339 P.2d 914 (Cal.App. 1959). This is the thrust

of Derouen v. City of Reno, 87 Nev. 606, 491 P.2d 989

(1971), where we upheld a city claim statute against the con-

tention that a city should not be treated differently than a private

corporation. It also is the teaching of State v. Silva, supra, where

we held that the State could limit recovery to $25,000 for each

claimant without violating the concept of equal protection. Are

these recent decisions no longer viable? Have they also been cast

aside sub silentio? If it is constitutionally permissible for the

State to limit recovery (State v. Silva, supra) how can it be con-

stitutionally impermissible for the State to require that a claim

be filed?

As I read the majority opinion it voids the claim statutes

insofar as they apply to governmental torts. Are these statutes

still operative otherwise? This wholesale slaughter of a complete

statutory scheme and of case precedent, both old and recent, is

conduct unsuited to the function of this Court. Respectfully, I

dissent.

@

acs we hth mo