(specially concurring).
I believe the majority correctly concludes that the statute of limitations set out in SDCL 15-2-22.1 is unconstitutional. However, the majority opinion prematurely concludes that the classification is arbitrary. Nearly every legislative scheme involves line drawing by the legislature. The fact that such lines are drawn or classifications created does not make the legislation arbitrary unless there is no rational basis for the classification.
The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. It does not reject the government’s ability to classify persons or “draw lines” in the creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals. If the government classification relates to a proper governmental purpose, then the classification will be upheld.
2 R. Rotunda, J. Nowak, J. Young, Treatise On Constitutional Law § 18.2 (1986).
The majority claims to apply the rational basis review to the statute. However, the two-prong test set out by the majority is not the test traditionally applied in rational basis analysis. “The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985). The majority relies upon City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975), which in turn cites Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949), in support of the two-prong test set out in the majority opinion. However, a review of Railway Express shows that there is no such test set out. Instead, the Court in Railway Express found that the statute was valid by stating “the classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection.” Railway Express, supra, 336 U.S. at 110, 69 S.Ct. at 465.
*773The majority seems to conclude that the legislation is unconstitutional before applying the proper standard of review, which is whether there is a rational relationship between the classifications and some legitimate legislative purpose. I do not believe the legislative classification can be considered arbitrary until it is first determined that there is no rational basis. To do otherwise would place the burden on the legislature to show that every line drawn is constitutional. “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 175, 101 S.Ct. 453, 459, 66 L.Ed.2d 368, 376 (1980) (citing Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed. 2d 491, 501-02 (1970)). Thus, the classification is not arbitrary because the legislature has drawn such a line, but rather is arbitrary because the classification is not rationally related to the stated purpose of curbing malpractice claims.