Brann v. State

• Decision Date: 14 January 1981
• Citation: 424 A.2d 699
• Parties: Barry A. BRANN v. STATE of Maine.
• Court: Maine Supreme Court

Page 699

424 A.2d 699

Barry A. BRANN v. STATE of Maine.

Supreme Judicial Court of Maine.

Argued Sept. 16, 1980.

Decided Jan. 14, 1981.

Richard M. Morton (orally), Holman & Cullenberg, Ronald J. Cullenberg, Farmington, for plaintiff.

Steven F. Wright (orally), Asst. Atty. Gen., Charles D. Devoe, Asst. Atty. Gen., Augusta, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN, ROBERTS and CARTER, JJ.

CARTER, Justice.

The plaintiff, Barry Brann, filed suit in Superior Court against the State of Maine, pursuant to a Private Resolve enacted by the Maine Legislature in 1979. ¹ His complaint alleged permanent personal injuries received in September, 1975, as a result of the State's negligence, while he was an inmate at the State Prison in Thomaston. According to the plaintiff's complaint and the statement of facts in the private resolve, the plaintiff received disabling permanent injuries to his right hand and arm when he fell through a window while participating in a basketball game organized and supervised by members of the prison staff. Brann alleged that the prison staff organized the basketball game, knowing that the gymnasium was unsafe because the windows' protective screens had been removed for painting, knowing that the prison administration had prohibited use of the basketball court until the screens were replaced, but failing to provide any warnings or other safeguards for the prisoners' protection. The private resolve authorized Brann to sue the state for damages from this incident and authorized and designated the attorney general to "appear, answer, and defend" the action.

The Superior Court granted the state's motion to dismiss, pursuant to M.R.Civ.P. 12(b)(1), holding that the court lacked jurisdiction because the private resolve violated the equal protection clause and the special legislation clause of the Maine Constitution.

We conclude that the private resolve is valid, the court does have jurisdiction, and the Superior Court erred in granting the motion to dismiss.

I.

In Davies v. City of Bath, Me., 364 A.2d 1269 (1976), we held that sovereign immunity would no longer be a bar to tort actions against the state for causes of action arising on or after February 1, 1977. Since Brann's alleged injuries occurred prior to that date, the state's sovereign immunity would bar this suit, but for the private resolve in which the state specifically gave its consent to be sued.

The state argues that the waiver of sovereign immunity is invalid because the private resolve violates the state constitution. We will not speculate as to whether the legislature intended that the Attorney General attack the constitutionality of the resolve or merely confine himself to defending the case on its merits. Since the plaintiff has not raised the issue, we do not consider whether the state is estopped to question the validity of its own legislative act. See Sweeney v. State, 251 N.Y. 417, 167 N.E. 519 (1929); State ex rel. Clemmer & Johnson v. Turner, 93 Ohio St. 379, 113 N.E. 327 (1916).

We do question whether the state has standing to attack the constitutionality of the private resolve. One who attacks the constitutionality of a legislative act must be actually deprived of a constitutional right by that legislation. State v. Van Reenan, Me., 355 A.2d 392, 394 (1976). Since the state has no constitutional rights that will be affected by the operation of this private resolve, ordinary rules of standing would preclude it from challenging the resolve's validity and from raising equal protection issues that do not affect any parties to this litigation. ²

Even if the state does not have standing to attack the validity of the private resolve, it may direct the court's attention to our possible lack of jurisdiction. The court must always take note of matters raising questions as to its own jurisdiction. Dillon v. Johnson, Me., 322 A.2d 332 (1974).

The constitutional validity of a private resolve's waiver of sovereign immunity is a jurisdictional question. Nadeau v. State, Me., 395 A.2d 107, 111 (1979); Look v. State, Me., 267 A.2d 907, 908 (1970). ³ If the legislation in which the state waives its sovereign immunity is unconstitutional, then its consent to suit has not been validly given, and the court has no jurisdiction to entertain the suit. Since the jurisdiction of both the trial court and this court depend upon the validity of the private resolve, we will examine its constitutionality upon our own initiative, and we need not determine the precise boundaries of the state's standing.

II.

In Nadeau v. State, Me., 395 A.2d 107 (1978), the state raised the same constitutional challenge to a private resolve waiving sovereign immunity. We stated that a private resolve that singles out one person for special legislative attention must survive scrutiny under both the equal protection clause, Me.Const., art. 1, § 6-A, and the special legislation clause, Me.Const., Art. 4, Pt. 3, § 13. Although we found that Nadeau's complaint should be dismissed for failure to state a claim, we upheld the constitutionality of his private resolve.

The Superior Court below, citing our decision in Nadeau, found Brann's resolve unconstitutional because "this Court is unable to say that it is highly improbable that there are other prisoners injured in a state institution while serving a sentence, unable to say that the circumstances and facts are highly unique." Our decision in Nadeau did involve a very unusual factual situation, but we did not set forth the language quoted by the Superior Court as the standard for testing the constitutionality of a private resolve. The Superior Court erred in failing to recognize that a private resolve like every act of the legislature is presumed to be constitutional. Nadeau, 395 A.2d at 111; Orono-Veazie Water District v. Penobscot County Water Co., 348 A.2d 249, 253 (1975). The burden of showing a constitutional violation is on the party who asserts an infirmity. Union Mutual Life Insurance v. Emerson, Me., 345 A.2d 504, 507 (1975). In this case, the defendant was permitted to raise the constitutional issues for purposes of questioning the court's jurisdiction, but it provided no evidence at all from which the Superior Court could have found a constitutional violation.

A

In reviewing the state's equal protection challenge to the private resolve in Nadeau, we used the same rational basis test that applies to general legislation where no fundamental right or suspect classification is involved. The law need not operate uniformly on all individuals "as long as those affected are reasonably different from those excluded and there is a rational basis for treating them differently." Nadeau, 395 A.2d at 113; McNicholas v. York Village Corp., Me., 394 A.2d 264, 269 (1978).

The state argues that the plaintiff's status as a prisoner is not a rational basis for distinguishing him from the class of other persons injured by the state's tortious conduct prior to the abrogation of sovereign immunity. We disagree. We can readily attribute to the legislature a rational basis for this distinction. A prisoner living under state custody and control, who is injured under circumstances alleged to constitute gross negligence or misuse of authority, is in a significantly different position from that of other persons injured by the state's ordinary negligence in areas routinely used by the general public. The state may rationally, because of this difference, decide to assume a greater responsibility for the prisoner's injuries. The legislature may waive sovereign immunity for as limited a class as it sees fit as long as the limitation is not arbitrary and there is equality of right to all persons similarly situated. Nadeau, 395 A.2d at 113.

Before the court can find an equal protection violation, it must at least have some indication that there exist similarly situated persons who have not been treated equally. The only similarly situated persons would be prison inmates injured under similar circumstances after June, 1974 the date before which the statute of limitations would bar tort claims and before February 1, 1977 the date after which tort claims would no longer be barred by sovereign immunity. Since the state has made no such evidentiary showing, we can only speculate as to whether there are other persons in that class.

Even if we assume that there are other persons in the plaintiff's class, there is no evidence that they have been arbitrarily denied equal treatment. The legislature could legitimately prefer to deal with prisoners' claims on a case-by-case basis and to waive sovereign immunity only after considering the specific circumstances of each case. Since the Superior Court was given no indication that any similarly injured prisoner has applied for and been denied the legislative dispensation granted to Barry Brann, it should not have assumed that any violation of equal protection occurred. The impact of such a legislative denial may be determined, if and when it occurs, with specific reference to the rights of any person thereby denied relief.

In this case, there has been no challenge to the private resolve from any party whose rights are directly affected. The state has made no showing that there exist any similarly situated persons who have been denied equal protection. Therefore, with respect to the equal protection clause, the presumption of constitutionality should stand.

B

The private resolve also activates the special legislation clause, Me.Const., Art. IV, Pt. 3, § 13, which states:

The Legislature shall, from time to time, provide, as far as practicable, by general laws, for all matters usually appertaining to special or private legislation.

We have construed this clause as a mandatory provision, so that special legislation is unconstitutional if a general law has been enacted or could have been made applicable. Nadeau, 365 A.2d at 112. We have found this clause to...