(concurring in part and dissenting in part).
I agree that this court has jurisdiction over this appeal but would hold that Moel-ler’s claim is clearly barred by SDCL 21-32-2, which states: “Action on any claim on contract or tort against the state shall be commenced within one year after same has arisen.” (Emphasis added.) In the absence of fraud, continuing treatment or representation, South Dakota recognizes the occurrence rule, not the discovery rule. Kurylas, Inc. v. Bradsky, 452 N.W.2d 111, 114-15 (S.D.1990); Schoenrock v. Tappe, 419 N.W.2d 197, 199-200 (S.D.1988); Wells v. Billars, 391 N.W.2d 668, 672-73 (S.D.1986) (Morgan, J., dissenting). See also Deutz & Crow v. State Cement Plant Com’n, 466 N.W.2d 631, 636-37 (S.D.1991); Alberts v. Giebink, 299 N.W.2d 454, 456 (S.D.1980).
Since Moeller’s claim against the state occurred while he was a minor, he had until majority plus one year to assert same. SDCL 15-2-22(1); 26-1-1. Moeller turned nineteen on September 1, 1979, and his claim has been barred since that date. SDCL 21-32-2.
A claim arises when an event occurs, or is discovered, not when a court subsequently recognizes the event and vacates a judgment concerning that event. This court has never before held that a claim did not arise until the date a court subsequently vacated a judgment concerning a prior event as opposed to the date of the event itself. The majority opinion discards all prior case law concerning the “occurrence rule” and the “discovery rule” and adopts a previously unknown rule presumably to be called the “vacation of judgment rule.” I want no part of this new rule and respectfully dissent therefrom.*
The irony of this case is exceeded only by the disruption to settled law:
1. The settled law is tossed out like an old pair of shoes.
2. The “new rule" could haunt this court for years if attempts are made to apply it to contracts, torts and other obligations.
3. Writing specially, the author of the majority opinion, dissents from his own work on the basis of the doctrine of separation of powers, constitutionality of the claims statute, and lack of statutory grounds for appeal.
4. He does so despite his writing in Sharp v. Sharp, 422 N.W.2d 443, 445 (S.D. 1988), where he states for the majority:
We have consistently held that the constitutionality of a statute cannot be raised for the first time on appeal. Carr v. Core Industries, 392 N.W.2d 829 (S.D.1986); Bayer v. Johnson, 349 N.W.2d 447 (S.D. 1984); Mayrose v. Fend-rich, 347 N.W.2d 585 (S.D.1984). For an appellate court to consider an issue and make a decision on an incomplete record on questions raised before it for the first time would, in many instances, result in injustice, and for that reason courts ordinarily decline to review questions raised for the first time in the appellate court.