White v. State

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 *1315otherwise 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, *1316707 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 the courts, contrary to Article 1, § 8 of the Wyoming Constitution. Justice Thomas noted the similarity between this section and a provision of Kansas’ constitution discussed in Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058, 74 A.L.R.4th 1 (1987). He agreed with the analysis of that court that statutory constraints on such a specific equal protection right demanded greater justification than deferential, “rational” scrutiny. Thus, he suggested that this court, in such an instance, no longer presume that the legislature acted rationally but that it conduct a more penetrating examination and determine whether the contested classification actually and substantially furthered the asserted legislative goals. Hoem, 756 P.2d at 784-87 (Thomas, J., specially concurring, with whom Urbigkit, J., joins).

Such heightened scrutiny is reminiscent of the analysis of this court in Nehring. As noted above, that case dealt with a challenge to Wyoming’s guest statute. We determined that the language of our constitution’s equal protection provision, requiring “uniform operation” of laws, demanded that the statute bear a substantial relationship to its asserted purpose. While Article 1, § 8 was never expressly mentioned in that decision, it should be noted that the only constitutional issue in the case was whether the guest statute denied citizens uniform access to the remedial powers of the courts. Nehring, 582 P.2d at 78-79. Thus at bottom, both Nehring and Justice Thomas’ concurrence in Hoem manifest the belief that our constitution provides a heightened equal protection guaranty of uniform access to judicial relief. We need not decide, however, whether that belief and the concomitant support for adoption of an intermediate level of scrutiny are presently shared by a majority of this court. The present case is clearly distinguishable from both prior decisions.

We have held that the requirement of Article 1, § 34, that all general laws operate uniformly, provides for equal protection equivalent to that provided by the Fourteenth Amendment to the Constitution of the United States. Washakie County School District, 606 P.2d at 332. We have also noted that the prohibition against special laws, contained in Article 3, § 27, is a more specific equal protection guaranty which enlarges the protections of Article 1, § 34. Phillips, 611 P.2d at 826. Appellant urges, in effect, that we adopt a similar analysis regarding Article 1, § 8. That is, he asserts that, while the general guaranty of equal protection demands that the legislature establish only arguably reasonable classifications, these more specific protections require some greater justification before the legislature may enact a special law or impede the people’s access to the courts. *1317However, he neglects the limited nature of the right granted by Article 1, § 8.

That section provides:

“All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.” (emphasis added)

We have long held that the second sentence of that section grants the legislature the power to determine the extent to which the State and its subdivisions are subject to suit. Troyer, 722 P.2d at 162-63; Worthington v. State, 598 P.2d 796, 800-04 (Wyo.1979); Hjorth Royalty Co. v. Trustees of University of Wyoming, 30 Wyo. 309, 222 P. 9 (1924). For us to hold otherwise would be tantamount to holding the constitution unconstitutional. It is noteworthy that the framers of the Wyoming Constitution did not include the grant of that power in Article 3 which generally sets out the powers, limitations on powers, and duties of the legislature. Rather, they chose to establish that power in the Declaration of Rights of Article 1. That power was established as a direct limitation on a right of the people, as declared in the first sentence of Article 1, § 8.

Nehring and Hoem dealt with an individual’s right to have access to the courts with respect to relief sought from another person. Appellant, however, seeks such access to bring suit against the State of Wyoming. Article 1, § 8 clearly gives no unconditional right to sue the State. Because the specific expansion of substantive due process and equal protection arguably granted by Article 1, § 8 does not exist with respect to suits against the State, legislative decisions concerning the retention or abrogation of governmental immunity to suit are only subject to the reasonableness standard of Article 1, § 34. Thus, appellant cannot rely on the rationale of Nehring and the concurrence in Hoem to obtain a heightened level of scrutiny.

OTHER CONSTITUTIONAL PROVISIONS

Other provisions of the Wyoming Constitution on which appellant relies similarly constrain legislative action only to the extent that it is unreasonable. None of those provisions warrants resort to an intermediate level of scrutiny to determine the legitimacy of W.S. 1-39-120. Those provisions state, in pertinent part:

Article 1, § 2:

“In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.”

Section 3:

“Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.”

Section 6:

“No person shall be deprived of life, liberty or property without due process of law.”

Section 7:

“Absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

Section 34:

“All laws of a general nature shall have a uniform operation.”

Article 3, § 27:

“The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * for limitation of civil actions; * * * granting to any corporation, association or individual- * * * any special or exclusive privilege, immunity or franchise * * *. In all other cases where a general law can be made applicable no special law shall be enacted.”

Article 10, § 4:

*1318“No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.”

We have held that the personal and political rights secured by the equal protection provisions of Article 1, §§ 2 and 3, are not absolute, and that those sections do not preclude the legislature from imposing reasonable restrictions on such rights in the public interest. Haskins v. State ex rel. Harrington, 516 P.2d 1171, 1173-74, 70 A.L.R.3d 1171 (Wyo.1973). Similarly, we have held that legislative restrictions on those rights satisfy our constitutional standard of substantive due process unless they are unreasonable and arbitrary. Cheyenne Airport Board, 707 P.2d at 726-27. Thus, a statute which would be deemed constitutional under the “reasonableness” standard of the Fourteenth Amendment to the United States Constitution also complies with the requirements of Article 1, § 6. State v. Laude, 654 P.2d 1223, 1228 (Wyo.1982).

We reach the same result when analyzing such a statute according to the standard of Article 1, § 7, for much of the substantive content of § 6 is derived from the language of § 7. See generally State v. Langley, 53 Wyo. 332, 84 P.2d 767, 770-71 (1938) (the separate inclusion of both § 6 and § 7 in our constitution represented the framers’ understanding that the concept of due process consisted not only of the historically accepted procedural element evident on the face of § 6, but also entailed restraints on the passage of substantive laws such that the majority could exercise its will against an individual only to the extent that such an exercise was reasonable and not arbitrary); Weaver v. Public Service Commission, 40 Wyo. 462, 278 P. 542, 547-48 (1929) (Article 1, §§ 2 and 7 and the general nature of the police power provided in the content of Article 1, § 6, require legislative actions to be reasonable, to operate with equality, and to be in the service of the public’s welfare).

Appellant’s reliance on Article 1, § 34 and Article 3, § 27 is also unfounded. We have held that these complementary provisions do not proscribe reasonable classifications; that they only require a statute to operate in a similar manner upon all persons in the same circumstances. Meyer v. Kendig, 641 P.2d 1235, 1240 (Wyo.1982); Mountain Fuel Supply, 578 P.2d at 1356; May v. City of Laramie, 58 Wyo. 240, 131 P.2d 300, 305-06 (1942). Furthermore, it is obvious that appellant’s reliance on these provisions is nothing more than a restatement of his equal protection argument, for he does not argue that the contested statute constitutes a prohibited special law. He merely argues that, as a general law, it must operate uniformly. Therefore, our only concern under these provisions is whether any classification accomplished by the statute was reasonably related to a legitimate legislative goal. Id.

Finally, appellant asserts that W.S. 1-39-120, by denying his cause of action, amounts to a limitation on damages in contravention of Article 10, § 4 of the Wyoming Constitution. We expressly rejected this general argument in Meyer, 641 P.2d at 1239. Additionally, speaking specifically of the Governmental Claims Act, we have held that “Art. 10, § 4 may prevent the legislature from imposing arbitrary limits on damages, but it does not prevent limitations on the types of actions which may be brought against the State.” Troyer, 722 P.2d at 163. Thus, this provision is inapplicable to the present case.

Appellant, therefore, has cited no provision of the Wyoming Constitution which provides him with protections independent of substantive due process and equal protection analysis. Neither has he established that he is entitled to anything more than traditional rational scrutiny of § 1-39-120.

RATIONAL RELATION TO LEGISLATIVE PURPOSE

Although appellant expends much energy disputing the appropriate standard of review of this contested statute, he asserts that he must prevail, in any event, even upon the application of the deferential “reasonableness” standard of scrutiny. *1319We disagree. Against his largely concluso-ry argument in this regard, the history of the Governmental Claims Act and the history of our legislature’s response to the much ballyhooed “tort/insurance crisis,” reveals a clearly reasonable effort to serve the public interest. That particular plaintiffs may occasionally be less well served as a result of these efforts, cannot be denied. However, neither can we deny that, in so doing, the legislature has also attempted to ensure the viability of an insurance system that funds most tort compensation and has attempted to ensure that the State’s prospective liability would not jeopardize its ability to provide much needed public services.

The history of the legislature’s actions in the specific area of governmental immunity is marked by a continual dialogue with the decisions of this court. In Collins v. Memorial Hospital of Sheridan County, 521 P.2d 1339 (Wyo.1974), we held that such immunity was waived to the extent that a governmental entity used public funds to insure itself against liability. Although we did not speak directly to the general issue of immunity, we noted that its application had fallen into wide and laudable disrepute and commented specifically upon the inequities of Wyoming’s rather piecemeal approach to the problem. Id. at 1340-43. At the following legislative session, our holding in Collins was enacted into law by 1975 Wyo.Sess.Laws, ch. 197, § 1, accompanied both by a requirement that the state purchase liability insurance for all law enforcement officers and by a broad authorization for the purchase of liability insurance for health care providers. Id.; 1975 Wyo.Sess. Laws, ch. 16, § 1. Thus, the legislature left the question of immunity largely to the discretion of individual governmental entities, providing for the option of waiver by authorizing the purchase of insurance and selectively waiving state immunity by requiring specific activities to be covered by insurance.

Such a treatment of the problem, however, fell under the criticism of Justice Rose’s impassioned dicta in Jivelekas v. City of Worland, 546 P.2d 419, 425 (Wyo.1976), calling for a broad abrogation of immunity for all governmental subdivisions. Admittedly, Collins left much to be desired. In retrospect, it was in fact a mere stopgap based on our trust that governmental entities would continue to insure against liability and on our trust that the legislature would take more comprehensive and satisfactory measures to resolve the problem.

This court’s disenchantment with the doctrine of governmental immunity, along with the pressures to judicially abrogate the doctrine, had been held in check largely by our deference to the legislature’s proper role in determining such issues. Indeed, in Jivelekas Justice Raper clearly noted the legislature’s obligation to fund both tort liability and the many services demanded by our citizens and cautioned that the legislature be given time to weigh its difficult economic choices and devise a uniform system for handling tort liability. Id. at 433-34 (Raper, J., concurring in part and dissenting in part). Unfortunately, circumstances arose that would no longer permit such complete deference.

That is not to say that the criticisms in Jivelekas went unheeded. In 1977, the Forty-fourth Legislature enacted House Bill 186, which, like the present Governmental Claims Act, provided for a broad yet limited waiver of immunity to tort suits and articulated a policy of balancing the State’s responsibility to tort victims against its many other fiscal responsibilities. That act, however, was defeated by gubernatorial veto. 1977 Digest of House Journals 231-33. With the defeat of that act, all governmental entities retained immunity except to the extent, as per Collins, they had insured themselves against liability. We were then called upon to decide Oroz v. Board of County Commissioners of Carbon County, 575 P.2d 1155 (Wyo.1978) and Worthington v. State, 598 P.2d 796 (Wyo.1979). In both cases, a victim of alleged governmental negligence squarely challenged the immunity of an uninsured governmental entity.

In Oroz, we abrogated the immunity of local governments to tort actions, grounding our authority to do so upon the deter*1320mination that the immunity of such entities was a court created doctrine that we were freely empowered to amend or overrule. In Worthington, however, we declined to similarly abrogate the immunity of the State. We noted in that case that Article 1, § 8, of the Wyoming Constitution “left to the legislature to determine what areas and under what conditions it would consent to suit for damages suffered by an individual and under which a recovery might be had by an individual for the wrongs of the State.” Worthington, 598 P.2d at 803. Noting also the legislature’s recent attempts to provide an orderly cure for the unfairness inherent in the immunity doctrine, we found it appropriate to defer to those efforts and refrain from interfering with the legislative prerogative. Id. at 803-04.

Those efforts, during the interim between Oroz and Worthington, culminated-in the passage of a comprehensive Governmental Claims Act. The concerns which the legislature attempted to balance through that act are best expressed in W.S. 1-39-102, which states in part:

“The Wyoming legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of governmental immunity and is cognizant of the Wyoming Supreme Court decision of Oroz v. Board of County Commissioners 575 P.2d 1155 (1978). It is further recognized that the state and its political subdivisions as trustees of public revenues are constituted to serve the inhabitants of the state of Wyoming and furnish certain services not available through private parties and, in the case of the state, state revenues may only be expended upon legislative appropriation. This act is adopted by the legislature to balance the respective equities between persons injured by governmental actions and the taxpayers of the state of Wyoming whose revenues are utilized by governmental entities on behalf of those taxpayers.”

In the service of this purpose, the act set out the limits of governmental liability and established claim procedures. However, it also required the State to purchase insurance to cover its liability, provided for periodic review of the State’s claim history under that coverage, and required the State to conduct actuarial and risk management studies. 1979 Wyo.Sess.Laws, ch. 157, §§ 1, 7. Additionally, as a safeguard against unwarranted claims, the act from its inception has sharply restricted the ability of governmental entities to settle claims without an investigation and a determination that the claimant was entitled to relief. See W.S. 1-39-115 and its attendant history. Thus the act, in its waiver of immunity, has relied heavily on the maintenance of insurance and has sought to control the costs of that insurance both through the prevention of risks and the litigation of baseless claims.

These management techniques, however, gradually became inadequate to the task of providing affordable insurance funding for the State’s potential tort liabilities. By the time the Forty-eighth Legislative Session convened in 1986, the State had been impacted by the so-called “tort/insurance crisis,” then sweeping this nation. Governor Herschler, in his address to both houses of the legislature, noted the inability of both government and the private sector to maintain affordable insurance coverage against potential tort liability. The governor urged the legislature to consider permanent measures which might make the extent of such liability more predictable and specifically called for a variety of interim actions which would address problems created by the Governmental Claims Act. Among such suggestions were the elimination of liability related to the construction and maintenance of highways and the creation of governmental self-insurance funds. 1986 Digest of House Journals 7-10. The legislature answered this call on a variety of fronts.

In addition to measures directed specifically towards governmental tort liability, the Forty-eighth Legislature enacted a number of “tort reforms” designed to expedite litigation and, by either limiting liability exposure or making it more predictable, make certain risks more insurable. Among the reforms enacted into the 1986 Wyo*1321ming Session Laws are the following: ch. 4 (providing for sanctions against the submit-tal of baseless pleadings); ch. 5 (providing for the dismissal of actions on the basis of a defendant’s affidavit of non-involvement, providing that such an affidavit may be filed in lieu of an answer, and permitting a plaintiff limited discovery for the purpose of rebutting that affidavit); ch. 24 (repealing joint and several liability); ch. 45 (clarifying the burden of proof and standard of care to be established in medical malpractice cases); ch. 48 (limiting liability for amateur rodeos sponsored by public schools and non-profit organizations); ch. 92 (requiring the screening of medical malpractice claims prior to filing suit); and ch. 100 (eliminating liability for the executive decisions of governmental agencies and non-profit corporations).

More specifically directed at the problem of governmental liability, 1986 Wyoming Session Laws, chs. 74 and 81, established a program of self-insurance for the State and made participation in that program available to local governmental entities. The intent of the legislature with respect to that program is articulated in W.S. 1-41-101, which provides:

“The legislature recognizes that certain liability insurance policies of the state of Wyoming have been cancelled, that no responsive bids have been received and that there exists a need to develop a method to handle claims brought under the Wyoming Governmental Claims Act and arising under federal law. The legislature declares that the appropriate remedy is to create an account for self-insurance of the state and to provide for a loss prevention program. It is the intent of the legislature that the self-insurance account shall be operated on an actuarially sound basis. The legislature further declares that its intent is that the availability of commercial liability insurance coverage shall be explored considering the possibility that the insurance industry can provide coverage in the future that is less expensive than the costs of providing a loss prevention program and paying for claims out of the self-insurance account.”

Consistent with the expressed intent that this fund function merely as an interim alternative to the purchase of commercial insurance, the legislature provided for the automatic repeal of the self-insurance program, effective June 30, 1988. However, the continued unavailability of insurance required the extension of the program until June 30, 1990. 1988 Wyo.Sess.Laws, chs. 19, 63.

Finally, and most pertinent to the present case, the legislature also responded to Governor Herschler’s address by eliminating governmental liability for defects in the design, construction and maintenance of streets and highways. 1986 Wyo.Sess. Laws, ch. 89. We note in this regard the governor’s opinion in that address that such a reinstatement of immunity would not preclude the legislature from later waiving immunity for specific claimants whose injuries were allegedly caused by the negligent maintenance of highways. It is not certain that this opinion played any part in the legislature’s final decision. It certainly is not relevant to any issue raised or to our decision in this case.

We do observe, however, that the contents of the governor’s address, when read in conjunction with the contents of this appellate record and considering the specific areas of tort law which the legislature considered ripe for reform, amply reveal the reasonableness in the legislature's reinstatement of immunity with respect to highway maintenance. The record reveals, concerning the period between the passage of the Governmental Claims Act and the 1986 legislative session, the following noteworthy items:

1. The majority of claims filed against the State (75%-90%) related to the design, construction and maintenance of the State’s highway system.
2. In addition to purchasing insurance, the legislature appropriated $750,000 to the Attorney General’s office to pay claims under the Claims Act, one-third of which was set aside to cover litigation fees and expenses.
3. During that period, and as of July 21, 1988, the Highway Department defended *1322eighty-six lawsuits, claiming a total of $100,333,158.22 in damages. Seventy of those suits resulted in awards or settlements totalling $1,654,485.22. Sixteen of the suits were still pending, exposing the State to a potential liability of $9,398,-203.67.
4. During that same period, the Highway Department handled an additional thirty-five claims for a total of $7,864,-051.80 that did not result in a lawsuit. Two were pending, in a total amount of $23,210.92. The other claims resulted in a total payment of $10,000.
5. Of the one hundred three claims that had been finalized, fifty-eight claimants received nothing.

While the sheer expanse of our state’s highway system might to some extent account for the disproportionate amount of claims relating to this one area of governmental activity, the fact that the State has avoided liability on so many of those claims suggests a different conclusion. When one considers that joint and several liability still existed during this period and that under this doctrine the State, though one percent negligent, might be required to pay a total judgment, we think it not unreasonable for the legislature to assume that, in many of these cases, the State had merely become a convenient deep pocket.

We are all too aware that a highway accident may cause damages costing far in excess of what the injured and their insurance policies are capable of paying. Under the original provisions of the Governmental Claims Act, however, an often faultless Highway Department was hauled into court and held answerable for all of the claimed loss. While the record shows that the State was able to avoid liability in a great number of instances, the costs to the taxpayer of such vulnerability cannot be tallied merely by reference to the cases successfully defended by the State. The monetary costs of litigation and the related costs of diverting the human resources of government from otherwise beneficial endeavors must also be calculated. It is not unreasonable for the legislature to determine that these costs outweigh the benefits of continued liability for highway maintenance. We cannot say it is unreasonable for the legislature to decide that the most efficient use of public monies requires assertion of immunity in these circumstances.

We hold, therefore, that the passage of W.S. 1-39-120, providing immunity from suit for design, construction and maintenance of highways, bears a reasonable relation to the legitimate legislative objectives of conserving public funds and preserving a fair and viable system of compensating persons injured by governmental actions. There is no constitutional infirmity in that statute.

Affirmed.