Brenda Vortice v. Kirk Fordice ( 1997 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-CA-00414-SCT
BRENDA VORTICE, ADMINISTRATRIX OF THE
ESTATE OF HENRY VORTICE, SR., AND HENRY
EARL VORTICE, JR., JERIMIAH VORTICE
POLLARD AND JERRIKA VORTICE, MINORS
v.
KIRK FORDICE, GOVERNOR; JIM INGRAM,
COMMISSIONER OF DEPARTMENT OF PUBLIC
SAFETY; AND JIMMY STRINGER, DIRECTOR OF
DEPARTMENT OF PUBLIC SAFETY
DATE OF JUDGMENT: 02/26/97
TRIAL JUDGE: HON. ELZY JONATHAN SMITH JR.
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: AZKI SHAH
ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL
BY: JIM FRAISER
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 5/14/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 6/4/98
BEFORE PRATHER, C.J. , ROBERTS AND MILLS , JJ.
MILLS, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE AND FACTS
¶1. In September 1995, Henry Vortice, a highway patrolman, was questioned by officials at the
Highway Patrol headquarters in Jackson, Mississippi, regarding his alleged participation in armed
robbery as well as illegal distribution of drugs. Vortice was also asked to resign from the highway
patrol. During the interrogation Vortice agreed that he would wear a "wire" to help the officials
obtain evidence against an accomplice. Vortice committed suicide shortly after making the requested
tape.
¶2. On September 26, 1996, Vortice's wife and administratrix of his estate, Brenda Vortice, instituted
a wrongful death action against the Mississippi Department of Public Safety claiming that the
Department should have known about Vortice's suicidal tendencies and should have kept him in
protective custody. The Plaintiff failed to furnish written notice to the Defendant ninety days prior to
filing suit as required by statute. The Department filed a motion to dismiss Mrs. Vortice's suit for
failure to comply with the notice requirements of the Tort Claims Act, Mississippi Code Annotated
§ 11-46-11. The Circuit Court of Cohoma County granted the motion to dismiss. Aggrieved, Mrs.
Vortice appeals assigning the following issue as error:
I. WHETHER MISSISSIPPI CODE ANNOTATED § 11-46-11 VIOLATES THE
EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION?
ARGUMENT
¶3. Vortice claims that the notice provision of the Tort Claims Act , Miss. Code Ann. § 11-46-11
(Supp. 1997), violates the Equal Protection Clause of the Constitution because it requires a person to
give ninety days notice to the head of a government entity before suing that entity whereas this type
of notice is not required when suing an individual. She therefore asserts that the Tort Claims Act
discriminates against individuals.
ANALYSIS
¶4. We will apply the rational relation test when reviewing Constitutional issues unless a fundamental
right or suspect class is involved. Wells v. Panola County Bd. of Educ., 645 So. 2d 883, 893 (Miss.
1994). There is no fundamental right to bring suit against the state of Mississippi or a political
subdivision of Mississippi, Wells, 645 So. 2d at 893, nor is Mrs. Vortice a member of a suspect class.
Thus, the applicable standard of review is the rational relation test. This means that the state must
show that the ninety day mandatory notice required by Miss. Code Ann. § 11-46-11 is rationally
related to a proper legislative purpose.
¶5. In Wells, we held that an Accident Contingent Fund was Constitutional because the legislature
was attempting to conserve scarce financial resources of the school systems. Wells, 645 So. 2d at
894. Similarly, in the case sub judice, the legislature has an interest in conserving state funds. By
enactment of the Mississippi Tort Claims Act, the legislature elected to waive sovereign immunity.
However, this waiver was qualified by specifying certain procedural requirements which must be met
before an action was filed. City of Jackson v. Lumpkin, 697 So. 2d 1179 (Miss. 1997). As we noted
in Lumpkin, there are many valid reasons underscoring the legislative requirement of notice to a
governmental entity prior to filing suit. Id. at 1181. Notice provisions encourage settlement of claims
prior to entering litigation, therefore conserving valuable governmental resources. Further, notice to
the governmental entity encourages corrective actions, where necessary, prior to litigation, therefore
benefitting public health and welfare. Although the Tort Claims Act waives sovereign immunity to a
certain extent, it is still concerned with conserving government funds and protecting the public health
and welfare at the earliest possible moment. Since these reasons serve a valid state purpose, the Tort
Claims Act, including the notice provision, meets the rational basis test, and is therefore,
Constitutional.
CONCLUSION
¶6. We find that the Torts Claim Act does not violate the Equal Protection Clause of the Constitution
and we therefore affirm the lower court dismissal of this action.
¶7. AFFIRMED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH AND
WALLER, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.