Opinion of the Justices

• Decision Date: 24 May 1985
• Docket Number: No. 85-141,85-141
• Parties: OPINION OF THE JUSTICES.
• Court: New Hampshire Supreme Court

Page 1182

493 A.2d 1182

126 N.H. 554

OPINION OF THE JUSTICES.

No. 85-141.

Supreme Court of New Hampshire.

May 24, 1985.

Stephen E. Merrill, Atty. Gen. (Bruce E. Mohl, Asst. Atty. Gen.), filed a memorandum on behalf of the State, in support of the constitutionality of House Bill 440, as amended.

Francis G. Murphy, Manchester, filed a memorandum on his own behalf, in opposition to the constitutionality of House Bill 440, as amended.

The following resolution adopted by the House of Representatives on March 30, 1985, was filed in this court on April 8, 1985:

"Whereas, in 1983 the New Hampshire Supreme Court stated that it should be reluctant to reconsider the validity of the doctrine of sovereign immunity 'until the legislature has been given an opportunity to correct the present procedural and financial inadequacies of statutes relating to sovereign immunity,' State v. Brosseau, 124 N.H. 184, 192, 470 A.2d 869 (1983); and

"Whereas, HB 440 has been introduced and amended by the judiciary committee of the house of representatives and is now pending before the house of representatives; and

"Whereas, HB 440, as amended, waives the immunity of the state with respect to claims against the state and its employees to a maximum recovery of $250,000 per claimant and $2,000,000 per incident with certain specified exceptions; and

"Whereas, the intention of HB 440, as amended, is to provide a comprehensive procedure for bringing claims against the state and its employees and to address the procedural and financial inadequacies of existing legislation, RSA 541-B; and

"Whereas, in the view of the house of representatives HB 440, as amended, provides a reasonable system of compensation to satisfy the claims of persons injured by the negligent acts of state officers or employees while preserving the integrity of necessary governmental functions and decision-making; and

"Whereas, questions have been raised concerning the constitutionality of this legislation; be it

"Resolved by the House of Representatives:

"That the justices of the Supreme Court are respectfully requested to give their opinion upon the following questions of law:

"1. Is it permissible under Part I, Article 14 of the New Hampshire Constitution for the state to impose limitations on recovery by a person injured by the negligent acts of a state official or employee?

"2. If the answer to question one is in the affirmative, are the limitations on recovery set forth in HB 440, as amended, permissible under the New Hampshire Constitution?

"That the clerk of the house of representatives transmit copies of this resolution to the justices of the New Hampshire Supreme Court."

The following answer was returned:

To the House of Representatives:

The undersigned Justices of the Supreme Court submit the following reply to your request for an opinion as to the constitutionality of the provisions of House Bill No. 440 (HB 440), as amended. Interested parties were permitted to file memoranda with the court until April 19, 1985.

I. Introduction

"The doctrine of sovereign immunity is deeply entrenched in this jurisdiction." Krzysztalowski v. Fortin, 108 N.H. 187, 188, 230 A.2d 750, 751 (1967). "[T]he State is ... immune from suit in its courts [unless it] consent[s]...." Sousa v. State, 115 N.H. 340, 342, 341 A.2d 282, 283 (1975). Hence, absent consent, the State is not subject to suit for the tortious conduct of its agents. See, e.g., Dunaisky v. State, 122 N.H. 280, 282, 444 A.2d 532, 534 (1982) (negligence claim of police officer against State hospital for injuries inflicted by escapee of hospital barred); Niles v. Healy, 115 N.H. 370, 371-72, 343 A.2d 226, 227-28 (1975) (negligence claim of State liquor store patron for injuries arising from slip on ice outside store barred); Sousa v. State, supra, 115 N.H. at 345, 341 A.2d at 285-86 (negligence claim for injuries resulting from collapse of State owned and maintained bridge barred). At common law, "municipal corporations [were similarly] immune from liability for torts arising out of negligence in the performance of governmental functions," Opinion of the Justices, 101 N.H. 546, 548, 134 A.2d 279, 280 (1957), but not of proprietary functions, Merrill v. Manchester, 114 N.H. 722, 726, 332 A.2d 378, 381 (1974).

Despite the firmly established position of the sovereign immunity doctrine, this court increasingly has criticized and expressed doubts as to the validity of its various aspects. Chief Justice Kenison writing for the court in Krzysztalowski v. Fortin, supra, 108 N.H. at 189, 230 A.2d at 752, stated, "the writer of this opinion ... takes a dim view of governmental immunity." In Merrill v. Manchester, supra, 114 N.H. at 729, 332 A.2d at 383, this court significantly altered the common law immunity of municipalities by abolishing the governmental-proprietary function distinction. Most recently, in State v. Brosseau, 124 N.H. 184, 193-203, 470 A.2d 869, 875-81 (1983), Justices Douglas and Batchelder in a special concurrence urged the court to hold unconstitutional the statutes conferring immunity on the State.

In State v. Brosseau supra, the opinion of the court stated that judicial action on the validity of the doctrine of sovereign immunity should be deferred "until the legislature has been given an opportunity to correct the present procedural and financial inadequacies of statutes relating to sovereign immunity." State v. Brosseau, supra at 192, 470 A.2d at 874. Similarly, in Tilton v. Dougherty, 126 N.H. 294, ---, 493 A.2d 442, 446 (1985), Justice Brock, writing for the court, stated, "whatever future the [sovereign immunity] doctrine may have depends on the merits of the legislative response to the widespread dissatisfaction with it."

As the resolution certifying the bill to our consideration makes clear, HB 440 is a legislative response to the increasing criticism of the sovereign immunity doctrine. HB 440 addresses this criticism by, among other things: (1) preserving the sovereign immunity of the State and the official immunity of its officials and employees except where the bill or other legislation waives the immunities; (2) waiving these immunities for claims by persons injured by negligent acts of State employees, subject to certain exceptions and restrictions; (3) establishing procedures for the adjudication of such claims; and (4) limiting the damages recoverable against the State to a maximum of $250,000 per claimant and $2,000,000 per incident.

In certifying HB 440 for our opinion, the House of Representatives asks us the following two questions:

"1. Is it permissible under Part I, Article 14 of the New Hampshire Constitution for the state to impose limitations on recovery by a person injured by the negligent acts of a state official or employee?

"2. If the answer to question one is in the affirmative, are the limitations on recovery set forth in HB 440, as amended, permissible under the New Hampshire Constitution?"

In presenting our opinion, we address, first, the constitutional principles at issue, and, second, the specific provisions of HB 440.

II. The Constitution

Part I, article 14 of the State Constitution provides:

"Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws."

"The purpose of [this provision is] to make civil remedies readily available, and to guard against arbitrary and discriminatory infringements on access to courts." Estate of Cargill v. City of Rochester, 119 N.H. 661, 665, 406 A.2d 704, 706 (1979).

Our constitution guarantees State citizens equal protection under the law. N.H. CONST. pt. I, arts. 2 and 12. Principles of equal protection are intended to ensure that persons similarly situated are similarly treated by government. See Gazzola v. Clements, 120 N.H. 25, 29, 411 A.2d 147, 151 (1980). Under the equal protection provisions, "the right to recover for personal injuries is ... an important substantive right." Carson v. Maurer, 120 N.H. 925, 931-32, 424 A.2d 825, 830 (1980). Accordingly, legislative classifications of that right " 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation' in order to satisfy State equal protection guarantees." Id. at 932, 424 A.2d at 830-31 (quoting State v. Scoville, 113 N.H. 161, 163, 304 A.2d 366, 369 (1973)) (citations omitted).

"The continued existence of any application of the doctrine of sovereign immunity depends upon whether the restrictions it places on an injured person's right to recovery be not so serious that [they] outweigh[ ] the benefits sought to be conferred upon the general public." State v. Brosseau, 124 N.H. 184, 197, 470 A.2d 869, 878 (1983) (Douglas and Batchelder, JJ., concurring specially). We therefore identify the policy considerations that support and those that oppose the continuation of the immunity doctrine.

Four considerations support continuation of the immunity doctrine. First, exposure to liability would force the State to obtain funds to satisfy, process, and insure against claims against the State by either increasing revenues or diverting funds from other uses. See State v. Brosseau, supra at 197-98, 470 A.2d at 878 (Douglas and Batchelder, JJ., concurring specially); W. Prosser, Handbook of the Law of Torts § 131, at 975 (4th ed. 1971). If the State incurred significant liability, the payment of these costs could impair the financial ability of the State to render governmental services. Second, exposure to liability for the State's tortious performance of functions that it alone can perform, such as law enforcement, in a sense, would penalize the State for undertaking these obligations. See State v. Brosseau...