White v. State

Decision Date19 December 1989
Docket NumberNo. 88-291,88-291
PartiesEugene M. WHITE, Appellant (Plaintiff), v. STATE of Wyoming; and Wyoming State Highway Department, Appellees (Defendants).
CourtWyoming Supreme Court

Terry Mackey and Robert W. Tiedeken (argued), of Terry W. Mackey, P.C., Cheyenne, for appellant.

George Santini, Cheyenne, for amicus curiae Wyoming Trial Lawyers Ass'n.

Kenneth G. Vines of Vines, Gusea & White, Cheyenne, for appellees.

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

CARDINE, Chief Justice.

Appellant, Eugene White, brought an action to recover damages for personal injury against the Wyoming Highway Department. The district court granted the Highway Department's summary judgment motion, holding that appellant's cause of action for the negligent maintenance of a highway was barred by W.S. 1-39-120. Appellant now challenges the constitutionality of that statute.

We affirm.

The Highway Department resurfaced Highway 212 in Crook County, Wyoming and painted a fresh centerline on the road. However, it neglected to repaint the white edge line which its resurfacing operations had obliterated. Prior to October 7, 1986, Highway Department crews returned to Highway 212 and sprayed a tar-like sealant along the shoulder of the road. On the evening of October 7, 1986, at approximately 10:00 p.m., appellant steered his tractor-trailer to the outside of the southbound lane to create more passing room for an approaching vehicle and, allegedly mistaking the dark colored sealant for pavement, ran off the road and jackknifed his truck. Appellant asserted that the Highway Department had been negligent in its maintenance of Highway 212 and in its operation of state-owned motor vehicles.

The Highway Department moved to dismiss, arguing that the facts alleged would not support an action for negligent operation of a motor vehicle, and that an action for negligent maintenance of a highway was barred by W.S. 1-39-120. After converting that motion to one for summary judgment, and after hearing appellant's constitutional challenge to § 1-39-120 of the Wyoming Governmental Claims Act, the district court granted the Highway Department's motion. Appellant now reasserts his contention that the State's immunity to suit under § 1-39-120 is contrary to the due process and equal protection guaranties of the Wyoming Constitution.

W.S. 1-39-120 provides:

"(a) The liability imposed by W.S. 1-39-105 through 1-39-112 does not include liability for damages caused by:

"(i) A defect in the plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area;

"(ii) The failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; or

"(iii) The maintenance, including maintenance to compensate for weather conditions, of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area."

Appellant has not advanced a federal constitutional challenge to this statutory grant of immunity, presumably due to the limited review afforded such challenges by the decision of the United States Supreme Court in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). Appellant contends that the Wyoming Constitution places greater constraints on our legislature's power to immunize state and local government from tort actions and, therefore, relies upon state constitutional prohibition.

We have observed in this regard that the due process and equal protection guaranties of the federal Bill of Rights serve as a minimum standard for the protection of individual liberties and that the Wyoming Constitution may legitimately expand those safeguards. Cheyenne Airport Board v. Rogers, 707 P.2d 717, 726 (Wyo.1985); Nehring v. Russell, 582 P.2d 67, 77 (Wyo.1978). We have, in fact, recognized such increased protection in a number of cases. For example, the more particularized and specific language of our constitution has led to the recognition of a fundamental interest in education which is wholly absent in federal constitutional jurisprudence. Washakie County School District No. One v. Herschler, 606 P.2d 310, 332-33 (Wyo.1980).

This court has also spoken of certain specific and detailed rights, which would otherwise fall within the penumbra of federal equal protection guaranties, as if they had some constitutional stature independent of traditional equal protection analysis. See Phillips v. ABC Builders, Inc., 611 P.2d 821, 831 (Wyo.1980) (statutory immunity from suit for builders and architects closes the courts to persons injured by the protected class, in violation of the specific equal protection right granted by Article 1, § 8 of the Wyoming Constitution). Much in the same vein, we have accorded special significance to the more particularized wording of our due process and equal protection provisions and have implicitly employed a more rigorous standard of scrutiny for statutes alleged to contravene those rights. Nehring, 582 P.2d at 77-80 (constitutional guaranty of "uniform operation of laws" requires guest statute to be substantially related to legislature's announced purpose, despite constitutionality under deferential federal standard of equal protection).

Effectively conceding the constitutionality of § 1-39-120 under federal due process and equal protection standards, appellant would have us find some substantive state constitutional protection of his right to sue the Highway Department. Furthermore, in reliance on Nehring, he would have us review § 1-39-120, allegedly in contravention of such constitutional protections, by a more stringent standard than traditional, "rational basis" scrutiny. We will do neither.

The constitutional right to substantive due process and equal protection under the law operates as a general guaranty that no individual's entitlement to either property or liberty can be taken by the State unless such action is at least rationally related to a concern for the welfare of all its people. Certain entitlements, however, are so significant that we require a more compelling justification for the State's interference with those rights. That is the case with an individual's interests in privacy and the association with his family. It is also the case with respect to his right to be free from discriminatory classifications based on race, color, or national origin. Those entitlements are so significant that the State's interference with those rights must be necessary to the accomplishment of a compelling interest.

Appellant does not contend that the Wyoming Constitution provides him with any unique protection of this magnitude. He does, however, contend that by specifically enumerating certain rights, which would otherwise be safeguarded by its more general due process and equal protection provisions, that document provides him with protection somehow beyond that afforded by normal due process and equal protection analysis. We cannot agree. In order to subject W.S. 1-39-120 to something more stringent than traditional "rational basis" scrutiny, we would have to find that the Wyoming Constitution either forbids such an enactment or grants appellant such a significant right as to demand a more penetrating intermediate level of scrutiny. As we will show in our following discussion of Article 1, § 8, the authority to immunize governmental entities from suit is not forbidden. To the contrary, it is, by the constitution, expressly granted to the legislature. Even if we were to adopt a three-tiered standard of scrutiny, an intermediate level of scrutiny would be inappropriate where, as in this case, the constitutional right granted to appellant was conditioned upon the reasonable exercise of legislative authority. None of the constitutional provisions cited by appellant warrant such scrutiny.

This court has largely adopted the two-tiered scrutiny employed by the federal courts in analyzing substantive due process and equal protection challenges. That is, where a statute affects a fundamental interest or creates an inherently suspect classification, the court must strictly scrutinize that statute to determine if it is necessary to achieve a compelling state interest. However, if the statute only affects ordinary interests in the economic and social welfare area, the court need only determine that it is rationally related to a legitimate state objective. Troyer v. Department of Health and Social Services, Division of Vocational Rehabilitation, 722 P.2d 158, 165 (Wyo.1986); Cheyenne Airport Board 707 P.2d at 727; Washakie County School District, 606 P.2d at 333.

Appellant concedes that no fundamental interest or suspect classification is at issue here. Therefore, strict scrutiny is inappropriate and, were we to adhere to the two-tiered scrutiny analysis, W.S. 1-39-120 need only bear a reasonable relation to the legislature's legitimate interest in preserving the economic and social stability of the state. Such a standard is highly deferential to the constitutionality of the statute. That is, if any conceivable basis exists which will reasonably, although arguably, support the enactment, we will assume that the legislature has acted in a non-arbitrary and rational manner, and will hold the statute to be constitutional. Hoem v. State, 756 P.2d 780, 782-83 (Wyo.1988); Cheyenne Airport Board, 707 P.2d at 727; Mountain Fuel Supply Co. v. Emerson, 578 P.2d 1351, 1355 (Wyo.1978). In order to avoid the probable result of such deference, appellant urges that we adopt an intermediate level of scrutiny as advanced in Justice Thomas' specially concurring opinion in Hoem. However, appellant's reliance on that opinion is misguided.

ARTICLE 1, § 8

At issue in Hoem was the constitutionality of the Wyoming Medical Review Panel Act, which required the screening of prospective medical malpractice suits. The plaintiff asserted that such screening violated her right to equal protection by impeding her access to ...

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