State ex rel. Wyoming Ass'n of Consulting Engineers and Land Surveyors v. Sullivan

• Decision Date: 09 October 1990
• Docket Number: No. 90-28,90-28
• Parties: STATE of Wyoming ex rel. the WYOMING ASSOCIATION OF CONSULTING ENGINEERS AND LAND SURVEYORS, a Wyoming corporation; the Wyoming Chapter of the American Institute of Architects, a Wyoming association; the Wyoming Health Care Association, a Wyoming corporation; the Wyoming Hospital Association, a Wyoming corporation; the Wyoming Medical Society, a Wyoming corporation; John D. Bailey, M.D., individually; and the Wyoming Society of Certified Public Accountants, a Wyoming corporation, Petitioners, v. Michael J. SULLIVAN, Governor of the State of Wyoming, Respondent.
• Court: Wyoming Supreme Court

Page 826

798 P.2d 826

STATE of Wyoming ex rel. the WYOMING ASSOCIATION OF CONSULTING ENGINEERS AND LAND SURVEYORS, a Wyoming corporation; the Wyoming Chapter of the American Institute of Architects, a Wyoming association; the Wyoming Health Care Association, a Wyoming corporation; the Wyoming Hospital Association, a Wyoming corporation; the Wyoming Medical Society, a Wyoming corporation; John D. Bailey, M.D., individually; and the Wyoming Society of Certified Public Accountants, a Wyoming corporation, Petitioners, v. Michael J. SULLIVAN, Governor of the State of Wyoming, Respondent.

No. 90-28.

Supreme Court of Wyoming.

Oct. 9, 1990.

Richard Rideout of Herschler, Freudenthal, Salzburg, Bonds & Rideout, P.C., Cheyenne, for petitioners.

Joseph B. Meyer, Atty. Gen., and Sylvia Lee Hackl, Sr. Asst. Atty. Gen., for respondent.

George Santini of Graves, Santini & Villemez, P.C., Michael Bruce Rosenthal of Hathaway, Speight, Kunz, Trautwein & Barrett, and Robert W. Tiedeken of Wolf & Tiedeken, Cheyenne, for amicus curiae Wyoming Trial Lawyers Ass'n.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

MACY, Justice.

Petitioners seek the issuance of a writ of mandamus compelling Respondent Michael J. Sullivan, Governor of the State of Wyoming, to appoint a director to execute and implement the Wyoming Professional Review Panel Act. Wyo.Stat. §§ 9-2-1801 to -1812 (1977).

We hold that the Wyoming Professional Review Panel Act is unconstitutional and deny Petitioners' Petition for Writ of Mandamus.

Petitioners present the following dispositive issues in a memorandum in support of their petition:

I. Whether the Petitioners have standing to seek issuance of a Writ of Mandamus from this Court to compel the Respondent to execute and implement the Wyoming Professional Review Panel Act?

II. Whether the Wyoming Professional Review Panel Act is a violation of either the Constitution of the United States or of the Constitution of the State of Wyoming?

In 1988, this Court declared that the Wyoming Medical Review Panel Act, Wyo.Stat. §§ 9-2-1501 to -1511 (1977), was unconstitutional, because it violated equal protection rights guaranteed by the Wyoming Constitution. Hoem v. State, 756 P.2d 780 (Wyo.1988). We employed the equal protection analysis utilized in Mountain Fuel Supply Company v. Emerson 578 P.2d 1351 (Wyo.1978), where this Court stated:

"[T]here must be some difference which furnishes a reasonable basis for different legislation as to different classes, and the differences must not be arbitrary and without just relation to the subject of the legislation."

Hoem, 756 P.2d at 782 (quoting Mountain Fuel Supply Company, 578 P.2d at 1354). We first examined the state interest intended to be furthered by the Wyoming Medical Review Panel Act and declared:

[T]he legislature has a legitimate interest in protecting the health of the citizens of Wyoming as well as the economic and social stability of the state.

Hoem, 756 P.2d at 783. Second, we examined the issue of whether the legislation was a "reasonable and effective means" of effectuating the legitimate state interest. Id. We emphasized the principle that " '[t]he continued availability and vitality of * * * causes of action [against health care providers] serve an important public policy--the preservation of quality health care for the citizens of this state,' " id. (quoting Greenwood v. Wierdsma, 741 P.2d 1079, 1088 (Wyo.1987)), and held that the Wyoming Medical Review Panel Act was not rationally related to the state's interest in protecting public health or economic and social stability.

The Wyoming Legislature subsequently enacted legislation which was designed to establish a pretrial screening procedure for a broader scope of malpractice claims. 1989 Wyo.Sess.Laws ch. 262. Section 1 of that chapter provided for a screening procedure which could be established by the Wyoming Supreme Court. Wyo.Stat. § 1-1-124 (1977). Section 5(b) of that chapter stated that the Wyoming Professional Review Panel Act would be effective on January 1, 1990, if the Supreme Court did not previously promulgate rules for a screening procedure for malpractice claims. We declined to establish such a screening procedure.

The Wyoming Professional Review Panel Act mandates that the "panel shall have a director who shall be appointed by and serve at the pleasure of the governor." Section 9-2-1805(b). Because Governor Sullivan has failed to activate the provisions of the Wyoming Professional Review Panel Act by appointing a director of the panel, Petitioners petitioned this Court for issuance of a writ of mandamus requiring Governor Sullivan to execute and implement the Wyoming Professional Review Panel Act or, in the alternative, to show cause why the Wyoming Professional Review Panel Act has not been effectuated. ¹

We must begin by addressing Governor Sullivan's contention that Petitioners lack standing to seek the issuance of a writ of mandamus. In Washakie County School District Number One v. Herschler, 606 P.2d 310, 317 (Wyo.), cert. denied 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980), we stated:

Standing is a concept used to determine whether a party is sufficiently affected to insure that a justiciable controversy is presented to the court. It is a necessary and useful tool to be used by courts in ferreting out those cases which ask the courts to render advisory opinions or decide an artificial or academic controversy without there being a palpable injury to be remedied. However, it is not a rigid or dogmatic rule but one that must be applied with some view to realities as well as practicalities. Standing should not be construed narrowly or restrictively.

(Citation omitted.) We have also recognized an exception to the standing requirement when we are faced with a matter of great public interest or importance. Brimmer v. Thomson, 521 P.2d 574 (Wyo.1974). ² Without deciding whether Petitioners have standing to seek the issuance of a writ of mandamus which requires Governor Sullivan to implement the Wyoming Professional Review Panel Act, we hold that the issue of whether the Wyoming Professional Review Panel Act is constitutional is of great public importance and, therefore, merits a decision from this Court. ³

The review panel created by the Wyoming Professional Review Panel Act is almost identical to the review panel created in the Wyoming Medical Review Panel Act. The most significant differences are: (1) The Wyoming Professional Review Panel Act provides for a director appointed by the governor while the director of the medical review panel was the attorney general or his designee; and (2) the Wyoming Professional Review Panel Act applies to "professionals" and not to just health care providers as provided by the Wyoming Medical Review Panel Act. The term "professional" is defined as "a person licensed under W.S. 33-1-101 through 33-38-110 for whom the normal qualifications for licensure include at least a year of specialized post secondary education, or a hospital or nursing care facility." Section 9-2-1803(a)(iii). The purpose of the Wyoming Professional Review Panel Act is to:

(i) Reduce the costs of professional malpractice claims to both plaintiffs and defendants by a less formal professional review of claims before litigation is pursued in the courts; and

(ii) Improve the ability of the state to regulate professions and ensure professional competence.

Section 9-2-1802(a).

Similar to the Wyoming Medical Review Panel Act, the Wyoming Professional Review Panel Act provides that "[n]o complaint alleging malpractice shall be filed in any court against a professional before a claim is made to the panel and its decision is rendered." Section 9-2-1806(a). Once the director receives a claim, a hearing must be held within 120 days unless the panel finds good cause to delay the hearing. Section 9-2-1809(a). The Wyoming Professional Review Panel Act states that the hearing shall be informal and that the Wyoming Rules of Evidence do not apply. Section 9-2-1809(b). The panel must determine the existence of:

(i) Substantial evidence that the acts complained of occurred and that they constitute malpractice; and

(ii) A reasonable probability that the claimant was injured as a result of the acts complained of.

Section 9-2-1810(a). No decision by the director or the panel is subject to review by a court. Section 9-2-1809(b). The panel's decision "is not binding upon any party," § 9-2-1810(d), and the decision "is not admissible as evidence in any action." Section 9-2-1811(c).

The Wyoming Professional Review Panel Act violates the equal protection guarantees of the Wyoming Constitution in the same manner as the previously enacted Wyoming Medical Review Panel Act. Hoem, 756 P.2d 780. The legislature's expansion of the class of professionals to which the Wyoming Professional Review Panel Act applies does not cure the constitutional defect explained in Hoem. We decline to reverse Hoem. We hold that the Wyoming Professional Review Panel Act is unconstitutional and deny Petitioners' Petition for Writ of Mandamus.

URBIGKIT, C.J., filed a specially concurring opinion.

THOMAS, J., filed a specially concurring opinion, in which URBIGKIT, C.J., joined.

GOLDEN, J., filed a specially concurring opinion.

CARDINE, J., filed a dissenting opinion.

URBIGKIT, Chief Justice, concurring generally and with special concurrence.

I concur with the majority and join in the special concurrence of Justice Thomas. I write further to reflect that in spotlighted certainty for this bicentennial year, due process and equal protection, especially under the Wyoming Constitution, should not be unattained and the ephemeral rights not ever to be available to the average citizen. When faced with the inquiry "why not justice?", I become dissatisfied by assumption that the legislature can amend those rights out of the Constitution for this or another special interest proposition.

Current...