Pike v. Arizona Department of Transportation

KIRK D. PIKE and MARY IRENE PIKE, Plaintiffs-Appellants, v. ARIZONA DEPARTMENT OF TRANSPORTATION; DAVID RAY SEMM and JANE DOE SEMM, husband         and wife, Defendants-Appellees. 1 CA-CV 96-0443 DEPARTMENT A IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE Filed February 10, 1998 Appeal from the Superior Court of Maricopa County Cause No. CV 95-10616
        The Honorable Paul Katz, Judge AFFIRMED

Law Office of Douglas B. Price, P.C.
by Douglas B. Price
Tempe
and
Law Office of Theodore E. Carver
by Theodore E. Carver
Phoenix
        Attorneys for Appellants        

Grant Woods, Arizona Attorney General
by Deborah J. Spinner and Thomas J. Dennis,
Assistant Attorneys General
        Attorneys for Appellees         Phoenix

RYAN, Judge
        Appellants filed their personal injury action against appellees about twenty-three months after their cause of action accrued. The trial court dismissed the action, ruling that the one-year statute of limitations in Arizona Revised Statutes Annotated ("A.R.S.") section 12-821 applied to and barred their complaint against the state. Appellants challenge the constitutionality of that statute of limitations on equal protection grounds.
        We hold that the statute of limitations in A.R.S. section 12-821, which applies to governmental entities and employees, does not violate equal protection rights and is constitutional. We also conclude that the statute was not referred to or repealed by voters in the November 1994 referendum election, and therefore, the statute applied in this case.

BACKGROUND         On August 2, 1993, appellant Kirk Pike was injured in a collision with a street cleaning vehicle owned by Arizona Department of Transportation ("ADOT") and driven by ADOT employee David Semm. On August 1, 1994, Pike served a notice of claim on the state. Pike and his wife filed their lawsuit against ADOT and Semm (collectively "ADOT") on June 20, 1995.
        ADOT moved to dismiss the complaint, arguing that it had not been filed within the one-year statute of limitations period imposed by A.R.S. section 12-821. The Pikes argued that the implementation of section 12-821, which had been revised by the legislature in 1993, was stayed by the referendum decided by voters in the November 1994 election, and thus the previous two-year statute of limitations applied to their action. They also argued that imposing a shorter statute of limitations for claims against the state than for claims against private tortfeasors violated both the Arizona and United States Constitutions.
        The trial court granted ADOT's motion and entered judgment dismissing the action. After the court denied the Pikes' motion for reconsideration, they timely appealed from the judgment. This court has jurisdiction. A.R.S. § 12-2101(B).

DISCUSSION         A.         Constitutionality of the One-Year Statute of Limitations of A.R.S. Section 12-821
        We begin with the well-established principle that statutes are presumed to be constitutional. Republic Inv. Fund I v. Town of Surprise, 166 Ariz. 143, 148, 800 P.2d 1251, 1256 (1990). The party asserting that a statute is unconstitutional has the burden of clearly demonstrating that it is. State v. Cameron, 185 Ariz. 467, 469, 916 P.2d 1183, 1185 (App. 1996); see also Landgraff v. Wagner, 26 Ariz. App. 49, 53, 546 P.2d 26, 30 (1976).
        The Pikes argue that A.R.S. section 12-821, as enacted by the Arizona Legislature in 1993, is unconstitutional because it violates the equal protection clauses of the Arizona and United States Constitutions. See U.S. CONST. amend. XIV; ARIZ. CONST. art. 2, § 13. This is so, they contend, because persons with personal injury claims against private parties have two years after their causes of action accrue in which to file their lawsuits. See A.R.S. § 12-542. Persons with personal injury claims against the state, on the other hand, must file their lawsuits within one year after accrual. A.R.S. § 12-821. ¹
        We first note that the constitutional right to bring an action to recover damages for injury guaranteed by article 18, section 6, is subject to a reasonable statute of limitations. Rutledge v. State, 100 Ariz. 174, 180, 412 P.2d 467, 472 (1966); Landgraff, 26 Ariz. App. at 54, 546 P.2d at 31. Additionally, the Arizona Constitution grants the legislature the power to "direct by law in what manner and in what courts suits may be brought against the State." ARIZ. CONST. art. 4, pt. 2, § 18. "The legislature may restrict an individual's right to sue the state and the manner in which a suit may be maintained." Landry v. Superior Ct., 125 Ariz. 337, 338, 609 P.2d 607, 608 (App. 1980). Likewise, the legislature may constitutionally classify persons and things or pass laws that apply only to persons within a designated class as long as that classification is neither arbitrary nor unreasonable. Landgraff, 26 Ariz. App. at 55, 546 P.2d at 32; see also Kenyon v. Hammer, 142 Ariz. 69, 87, 688 P.2d 961, 979 (1984) ("Classification of claims for limitation purposes has traditionally been a legislative prerogative."). Such restrictions do not necessarily abrogate the constitutional right to recover damages for injury. Landgraff, 26 Ariz. App. at 54, 546 P.2d at 31.
        When deciding whether a statute violates equal protection, we must first determine the appropriate standard of review to apply: the rational basis test, intermediate scrutiny, or strict scrutiny. Kenyon, 142 Ariz. at 78-79, 688 P.2d at 970-71. Our choice depends on the nature of the classification and the type of state interest affected by the statute. Id. If no suspect class is involved, the determination rests on the nature of the right at issue. Id. at 79, 688 P.2d at 971.
        For example, a challenge to a statute regulating a fundamental right is subject to a strict scrutiny analysis. See id. Under strict scrutiny, a discriminatory statute is valid only if it serves a "compelling state interest" and is necessary to achieve the legislative objective of the statute. Id. at 78-79, 688 P.2d at 970-71. The Pikes maintain that the right to bring a cause of action for recovery of damages for personal injury is a fundamental right under Arizona Constitution article 18, section 6. See id. at 83, 688 P.2d at 975; accord Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 104, 692 P.2d 280, 283 (1984). Therefore, they argue, the one-year statute of limitations of A.R.S. section 12-821 should be subject to strict scrutiny review. See Kenyon, 142 Ariz. at 79, 688 P.2d at 971.
        ADOT, on the other hand, argues that A.R.S. section 12-821 permissibly limits the means by which a party sues the state, but does not abolish the constitutional right to sue. See ARIZ. CONST. art. 4, pt. 2, § 18; Landry, 125 Ariz. at 338, 609 P.2d at 608. ADOT notes that no suspect class is involved here and asserts that although the statute regulates a fundamental right, it does not abrogate the right or affect it enough to justify using strict scrutiny. ² Therefore, ADOT urges us to use the "rational basis" test.
        The rational basis test is used when the statute in question neither burdens a suspect classification, such as race or religion, nor impinges upon a fundamental right. See Kenyon, 142 Ariz. at 79, 688 P.2d at 971. To survive the rational basis test, the statute must serve a legitimate state interest, and the facts must permit the court to conclude that the classification rationally furthers the interest. Id. at 78, 688 P.2d at 970; Eastin v. Broomfield, 116 Ariz. 576, 583, 570 P.2d 744, 751 (1977). Under this test, equal protection is violated "'only if the classification rests on grounds wholly irrelevant to the achievement of the state's objective.'" Kenyon, 142 Ariz. at 78, 688 P.2d at 970 (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).
        We do not believe the holding from Kenyon requires us to apply strict scrutiny to determine the constitutionality of A.R.S. section 12-821. The Kenyon court applied a strict scrutiny test to analyze whether the "abolition of the discovery rule for some medical malpractice claimants" was constitutional. Id. at 83, 688 P.2d at 975. The challenged statute essentially precluded the right to bring and pursue a medical malpractice cause of action before the claim could have been discovered.
        Here, however, the suit is against the state. The history of the sovereign immunity doctrine and case law developments lead us to conclude that the constitutional right to recover for injuries does not include a fundamental right to sue the state for negligence.
        A right of action against the state was not recognized in the common law when the Arizona Constitution was adopted; the common law doctrine of sovereign immunity served to shield governmental entities from tort liability. State v. Sharp, 21 Ariz. 424, 426, 189 P. 631, 631 (1920). The doctrine, which originated in eighteenth century England, was first applied in the United States in Massachusetts in 1812. Stone v. Arizona Highway Comm'n, 93 Ariz. 384, 389, 381 P.2d 107, 110 (1963) (citing Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812)). The Sharp court applied the doctrine in Arizona in 1920, explaining:

        [I]t is well settled by the great weight of authority that the state, in consequence of its sovereignty, is immune from prosecution in the courts and from liability to respond in damages for negligence, except in those cases where it has expressly waived immunity or assumed liability by constitutional or legislative enactment.

21 Ariz. at 426, 189 P. at 631. The Arizona Constitution was adopted in 1910, ten years before Sharp was decided. This language from Sharp indicates, however, that the common law rule of sovereign immunity was so well settled that had the issue come before an Arizona court earlier, it would have been applied by the court.
        In 1963 in Stone, the Arizona Supreme Court abolished the common law doctrine of governmental immunity from tort liability in Arizona law. Since Stone, the legislature has adopted several statutes concerning immunity of public entities and employees and the requirement for notice of claims. See A.R.S. §§ 12-820 to -826; see also Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178 (1990); Evenstad v. State, 178 Ariz. 578, 875 P.2d 811 (App. 1993).
        Because the state may legislate limited governmental tort immunity as well as set time limits for bringing actions against it, we conclude that the Arizona Constitution does not grant a fundamental right to sue the state. Our conclusion does not contradict the statements in Kenyon, Barrio, and Anson v. American Motors Corp., 155 Ariz. 420, 423, 747 P.2d 581, 584 (App. 1987), that in Arizona the right to recover damages for bodily injuries is a fundamental right. None of those cases involved an action against a governmental entity, and those courts did not consider whether such a fundamental right exists against the government. Furthermore, in Evenstad, we concluded that there was no fundamental right to a cause of action against public entities that enjoyed absolute immunity, and we applied the rational basis test to an equal protection challenge to the immunity statute. 178 Ariz. at 586, 875 P.2d at 819. Because the Pikes have no fundamental right to sue the state, we consider their challenge to A.R.S. section 12-821 under the rational basis test.
        We acknowledge that courts in some jurisdictions have found that notice of claim statutes and short statute of limitations periods for tort actions against governmental entities violate equal protection. See Miller v. Boone County Hosp., 394 N.W.2d 776 (Iowa 1986) (sixty-day notice period/six-month statute of limitations); Kossak v. Stalling, 277 N.W.2d 30 (Minn. 1979) (one-year statute of limitations); Turner v. Staggs, 510 P.2d 879 (Nev. 1973) (six-month notice period); Hunter v. North Mason High Sch., 539 P.2d 845 (Wash. 1975) (120-day notice period); O'Neil v. City of Parkersburg, 237 S.E.2d 504 (W. Va. 1977) (thirty-day notice period). ³ However, most jurisdictions that have considered such a constitutional challenge have concluded that notice of claim and statute of limitations rules placed on persons bringing tort actions against governmental entities are rationally related to reasonable legislative purposes and thus do not violate equal protection. See, e.g., Tammen v. San Diego County, 426 P.2d 753 (Cal. 1967); Fritz v. Regents of Univ. of Colo., 586 P.2d 23 (Colo. 1978); McCann v. City of Lake Wales, 144 So. 2d 505 (Fla. 1962); Newlan v. State, 535 P.2d 1348 (Idaho 1975); King v. Johnson, 265 N.E.2d 874 (Ill. 1970); Johnson v. Maryland State Police, 628 A.2d 162 (Md. 1993); Campbell v. City of Lincoln, 240 N.W.2d 339 (Neb. 1976); Espanola Housing Auth. v. Atencio, 568 P.2d 1233 (N.M. 1977); Herman v. Magnuson, 277 N.W.2d 445 (N.D. 1979); Reirdon v. Wilburton Bd. of Educ., 611 P.2d 239 (Okla. 1980); James v. Southeastern Pa. Transp. Auth., 477 A.2d 1302 (Pa. 1984); Budahl v. Gordon and David Assoc., 287 N.W.2d 489 (S.D. 1980); City of Waco v. Landingham, 157 S.W.2d 631 (Tex. 1941); Sears v. Southworth, 563 P.2d 192 (Utah 1977). We agree with the conclusion reached by these courts.
        One reason for upholding increased protection of governmental entities through shorter notice of claim or statute of limitations periods is that the number of claims against governmental entities is significantly greater than against individual private tortfeasors. See generally Dennis P. Blackhurst, Governmental Immunity in Arizona--The Stone Case, 6 ARIZ. L. REV. 102, 107-08 (1964). Governments engage in a much greater range of activities than most private defendants, and must continue these activities despite the risk involved. Newlan, 535 P.2d at 1352; Johnson, 628 A.2d at 167. As noted by the court in Budahl:

        [T]here are real and vital differences between the situations of governmental units and of private parties as potential tort defendants . . . . [N]o private party has a tort responsibility comparable to the governmental unit's responsibility for injuries allegedly caused by defective or unsafe conditions of highways. . . . Taking into account the extent of the governmental unit's liability exposure where public ways and public buildings are concerned, and of the difficulties of keeping in current touch with all those conditions that might become a source of liability, surely there is nothing constitutionally unreasonable about a notice requirement that is not applicable to other tortfeasors and other claimants.

287 N.W.2d at 492-93 (quoting Luke Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 MICH. L. REV. 187, 272 (1973)). We believe the one-year statute of limitations of A.R.S. section 12-821 is rationally related to the purpose of enabling the state to respond to and resolve actions against it in a timely manner, given its vast responsibility for acts of its employees and conditions in and on its far-ranging operations, properties, buildings, and roadways.
        Other reasons for the legislature to require that actions against the state be filed no later than a year after an action accrues are (1) to foster prompt investigations and discovery while the evidence is still fresh; (2) to encourage repair of any dangerous conditions; (3) to enable prompt settlement of meritorious claims; and (4) to allow fiscal planning to prepare for any possible liability. See Reirdon, 611 P.2d at 240. These reasons provide rational grounds for adopting a shorter statute of limitations period for claims against the state than for claims against private tortfeasors. Accordingly, A.R.S. section 12-821 as applied to the Pikes does not violate equal protection concerns.

        B. Effect of the Referendum on A.R.S. Section 12-821
        For their second issue, the Pikes argue that the 1993 version of A.R.S. section 12-821 (which was applied in their case) was submitted to Arizona citizens by referendum and was rejected by the voters in the November 1994 election as part of Proposition 301. ADOT argues that the 1993 version of section 12-821 was not included in Proposition 301, but the Pikes assert that the text of Proposition 301 indicates otherwise. ⁴
        We agree with the Pikes that the text of the title of Proposition 301 might lead the reader to believe that the changes to A.R.S. section 12-821 were among the measures submitted to voters in the referendum. However, several facts show that section 12-821 was not among the statutes affected by the referendum.
        The proposition text is, as it indicates, merely the entire official title of the tort reform act passed by the legislature in 1993 as Senate Bill 1055. See Laws 1993, Ch. 90. The referendum and the publicity pamphlet indicate that some of the sections of Senate Bill 1055 were not referred to the ballot. Among those sections are sections 7 and 8, which repealed A.R.S. section 12-821 and added a new section 12-821. See STATE OF ARIZ. 1994 BALLOT PROPOSITIONS PUBLICITY PAMPHLET 95-96 (showing sections 7 and 8 shaded and explaining that shaded sections "were not referred to the ballot"); see also Ward v. Stevens, 86 Ariz. 222, 229, 344 P.2d 491, 495 (1959) (information in publicity pamphlet is "entitled to some weight" when determining meaning and purpose of constitutional amendment).
        That the 1993 version of A.R.S. section 12-821, as well as other sections of the 1993 tort reform act, was excluded from the referendum is confirmed by referring to the 1994 volume containing A.R.S. sections 12-1101 to -2703. Statutes such as A.R.S. sections 12-2505 and -2506 note that changes made in the statutes by Laws 1993, Chapter 90, are subject to a 1994 general election ballot referendum, and they do not show an effective date for the changes because the timely filing of a referendum petition prevents the referred law from taking effect. See Direct Sellers Ass'n v. McBrayer, 109 Ariz. 3, 5, 503 P.2d 951, 953 (1972). The 1996 pocket part to the volume notes that purported amendments of sections 12-2505 and -2506 were rejected by voters in the 1994 general election ballot referendum.
        On the other hand, no such notation for A.R.S. section 12-821 exists. The current version of this statute shows that it was added by Laws 1993, Chapter 90, section 8, and Laws 1994, Chapter 162, section 1. Thus, the annotated statutes confirm that section 12-821 was not subject to the 1994 referendum and that it took effect in July 1993. Accordingly, the one-year statute of limitations applied to the Pikes' action against ADOT.

        C. The Dissent
        In our view the dissent overlooks two important points. One, Stone expressly abolished the defense of sovereign immunity. 93 Ariz. at 393, 381 P.2d at 113. If no such defense had existed, there would have been no need for the supreme court to expressly abolish it. Two, under the dissent's analysis, statutes such as A.R.S. sections 12-820.01 (absolute immunity for judicial and legislative functions and for administrative functions involving the determination of fundamental governmental policy); -820.02 (bestowing qualified immunity for public employees for nine different governmental functions); and -820.04 (no public agency or public employee can be liable for punitive damages) are unconstitutional because they abrogate the right to sue for injuries. Such a sweeping rule is not the law in Arizona. See Evenstad, 178 Ariz. at 586, 875 P.2d at 817.
        The dissent also argues that the notice of claims statute, A.R.S. section 12-821.01, protects the state. This is not a persuasive argument for holding section 12-821 unconstitutional. It is persuasive in that it is right--section 12-821.01 does protect the state. First, it contains its own limitations period, which the dissent does not criticize. Section 12-821.01 bars an action if a notice of claim is not filed within 180 days of accrual of the cause of action. Thus, section 12-821 extends the time to file an action, assuming a claim was filed first. Second, a notice of claims statute gives the state early warning of problems that may be subject to immediate repair, although it does not provide the detailed notification a lawsuit does about complex liability situations. The one-year statute of limitations in section 12-821 serves a rational purpose by permitting the state an opportunity to budget for any settlements or potential judgments. See A.R.S. § 41-622(D); State Dep't of Admin. Risk Mgt. v. University Physicians, 182 Ariz. 262, 266, 895 P.2d 1025, 1029 (App. 1994) ("[T]he state insurance program is funded on an annual basis.").
        Finally, the dissent contends that upholding the constitutionality of section 12-821 resurrects sovereign immunity. This is wrong. Sovereign immunity means not only freedom from liability but also freedom from suit. Statutes of limitations, on the other hand, not only do not preclude an injured person from bringing a lawsuit, but also the time periods are subject to such doctrines as waiver, estoppel, the discovery rule, and tolling. See, e.g., Pritchard, 163 Ariz. at 432, 788, P.2d at 1183. Thus, far from immunizing the state from suit, section 12-821 merely requires that an action against it be brought within one year of accrual.

CONCLUSION         In summary, we hold that the one-year statute of limitations contained in A.R.S. section 12-821 does not violate equal protection and thus is constitutional. We also conclude that the 1993 version of section 12-821 was not subject to referendum and did apply to the Pikes' cause of action against ADOT. Therefore, we affirm the trial court judgment in favor of ADOT and Semm.


CONCURRING:
        PHILIP E. TOCI, Judge


GRANT, J., dissenting.
        I respectfully dissent from the majority decision. I believe that A.R.S. section 12-821 is unconstitutional because it violates the right to equal protection guaranteed by both the United States and Arizona Constitutions. The statute of limitations contained in A.R.S. section 12-821 applies to defendants who are governmental entities and employees and, for those defendants, reduces the normal tort statute of limitations from two years to one year. See A.R.S. section 12-542 (1992). Therefore, plaintiffs who have tort claims against governmental entities suffer a curtailed right to bring claims, while plaintiffs who have claims against all other defendants do not.
        I agree with the majority that the constitutional right to bring an action to recover damages for injury guaranteed by Arizona Constitution, article 18, section 6, is subject to a reasonable statute of limitations. However, nothing in the constitutional provision exempts suits against governmental entities:

The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.

        Our supreme court has decreed that this is a specific and strong requirement. Kenyon v. Hammer, 142 Ariz. 69, 74, 688 P.2d 961, 966 (1984). The majority discusses the nature of discriminatory classification and the type of state interest affected by the statute, holding that, under strict scrutiny, a discriminatory statute is valid only if it serves a "compelling state interest." The majority also states that "[t]he history of the sovereign immunity doctrine and case law developments lead us to conclude that the constitutional right to recover for injuries does not include a fundamental right to sue the state for negligence." Slip op. ¶ 14. That statement is erroneous.
        The majority premises its conclusion on its belief that a right of action against the State was not recognized at common law when the Arizona Constitution was adopted, and that the common law doctrine of sovereign immunity served to shield governmental entities from tort liability. See Sharp, 21 Ariz. at 426, 189 P. at 631. The majority continues its analysis by stating, "The doctrine, which originated in eighteenth century England, was first applied in the United States in Massachusetts in 1812." That doctrine was known in England as "the King can do no wrong." However, the people who founded this country were seeking relief and freedom from the tyrannical power of English monarchs. Therefore, I do not believe our founding fathers had any intention to perpetuate sovereign immunity, nor was there a sovereign to enjoy that immunity. Rather, in the United States, the people are sovereign. There appears to have been a misinterpretation of early American case law which unfortunately has been perpetuated.
        Furthermore, the Arizona Constitution clearly did not intend to perpetuate this misinterpretation, for it stated unequivocally that there would be NO abrogation of the right to sue for injuries. The Arizona Constitution did not limit this right by adding the words "except against the State or its entities." I see no reason for this court to add such language judicially.
        The majority cites Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812) to support the existence of the common law doctrine of sovereign immunity. Mower is difficult to understand given the antiquated wording; however, it is a case in which a plaintiff brought an action against the town of Leicester for the loss of his horse due to the failure of the town to keep a certain bridge in repair. The Mower court held that a town is liable if negligence is proved; but, no negligence was charged in the case. The action was at common law, and the incorporated town would have been liable except that plaintiff sought double damages (apparently similar to punitive damages), which the court held would not lie unless allowed by statute. This was not a case for common law damages for negligence and, therefore, does not support the majority's proposition that sovereign immunity existed at common law when the Arizona Constitution was adopted.
        Oddly, the majority ignores Arizona's own common law on the issue of sovereign immunity in Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982). The Arizona Supreme Court held:

        We are well aware that some of the inconsistencies in our previous opinions in this area of law have made the task of the lower courts more difficult. A full resolution of the many questions in a broad sweeping opinion is also fraught with danger. However, a return to Stone v. Arizona Highway Comm'n, 93 Ariz. 384, 381 P.2d 107 (1963), would make a good starting point. The Court in that opinion said:

        "[T]he substantive defense of governmental immunity is now abolished not only for the instant case, but for all other pending cases,

those not yet filed which are not barred by the statute of limitations and all future causes of action. All previous decisions to the contrary are overruled.["]

        "There is perhaps no doctrine more firmly established than the principle that liability follows tortious wrongdoing; that where negligence is the proximate cause of injury, the rule is liability and immunity is the exception . . . ."

93 Ariz. at 393, 381 P.2d at 107 [emphasis added].
        It can be said that in subsequent cases we have not always been true to the spirit of the Stone decision that "the rule is liability and immunity is the exception." (Emphasis added in Ryan.)
134 Ariz. at 309, 656 P.2d at 598.
        The Ryan court went on to hold that sound public policy requires public officers and employees to be held accountable for their negligent acts in the performance of their official duties. "Thus the parameters of duty owed by the state will ordinarily be coextensive with those owed by others." Ryan, 134 Ariz. at 310, 656 P.2d at 599. The majority thus appears to be making an end run around Ryan as well as attempting to resurrect sovereign immunity--if, indeed, it ever was a living doctrine in Arizona at all.
        The Notice of Claim Statute, A.R.S. section 12-821.01, affords the State ample fiscal protection. The State does not need additional protection in the form of a shortened statute of limitations. It will receive notice, within 180 days after the cause of action accrues, that the claim exists and of the general amount of damages requested. The Notice of Claim Statute thus allows the State to pay or settle claims early and avoid legal expenses, or to begin its investigation and preparation for litigation. If the plaintiff fails to comply with A.R.S. section 12-821.01, plaintiff is barred from bringing an action against the State or public entity. Crum v. Superior Court, 186 Ariz. 351, 353, 922 P.2d 316, 318 (App. 1996).
        I find no valid reason, therefore, to shorten the statute of limitations in those cases brought against the State or its agent. This is merely an attempt to reach the non-existent doctrine of sovereign immunity by another path.
        I would hold A.R.S. section 12-821 unconstitutional as violative of equal protection. I would reverse the summary judgment in favor of ADOT and Semm and remand this case for trial on the merits.



¹          1. The version of A.R.S. section 12-821 in effect before 1993 was deleted by the legislature in its 1993 First Regular Session. Laws 1993, Ch. 90, § 7. The legislature adopted a new section 12-821, which provided: "All personal injury actions against any public entity or public employee involving acts that are alleged to have occurred within the scope of the public employee's employment shall be brought within one year after the cause of action accrues and not afterward." Laws 1993, Ch. 90, § 8. The new statutory language went into effect on July 17, 1993; thus, it applies to Pike's August 2, 1993, accident. Section 12-821 was amended in 1994 to read: "All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward." Laws 1994, Ch. 162, § 1.
         ² . An intermediate test, known as the "means-scrutiny analysis," has been used by the United States Supreme Court for classifications such as those based upon gender and illegitimacy of birth. See Kenyon, 142 Ariz. at 78, 688 P.2d at 970. At least one state court has used this intermediate standard of review to determine whether a statute requiring a notice of claim against a governmental entity violated equal protection. See James v. Southeastern Pa. Transp. Auth., 477 A.2d 1302, 1307 (Pa. 1984). Because neither party before us argues that it should be applied, we do not consider whether this standard of review is appropriate for this case.
         ³ . Although many of the cases from other jurisdictions that we cite concern equal protection challenges to notice of claim statutes and the statute at issue here is a statute of limitations, the notice of claim statutes analysis applies because notice provisions operate like statutes of limitations: a timely claim must be filed before filing suit. See Pritchard, 163 Ariz. at 430, 788 P.2d at 1181 (timely claim filing requirement is analogous to statute of limitations).
         ⁴ . The lengthy text of the "official title" of Proposition 301 as it appeared on the ballot and in the Proclamation from the 1994 General Election included the following language:

        Ordering the submission to the people of an act amending Sections 9-500.02 and 12-550, Arizona Revised Statutes; . . . amending Section 12-820.02, Arizona Revised Statutes; repealing Sections 12-820.03 and 12-821, Arizona Revised Statutes; amending Title 12, Chapter 7, Article 2, Arizona Revised Statutes, by adding a new Section 12-821; amending Section 12-822, Arizona Revised Statutes; . . . changing the designation of Title 33, Chapter 12, Arizona Revised Statutes, to "Liabilities and Duties on Property Used for Education and Recreation;" amending Section 48-818, Arizona Revised Statutes; relating to tort reform. (Emphasis added.)