No. 80-19 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

BRUCE LINDER, Plaintiff,

C. W. SMITH, M.D. ; ROGER MURRAY, M.D. ; and the MONTANA MEDICAL ASSOCIATION, a Montana corporation, Defendant.

ORIGINAL PROCEEDING: Counselof Record: For Plaintiff: Hon. Mike Greely, Attorney General, Helena, Montana Douglas R. Drysdale, Bozeman, Montana R. P. Ryanargued, Billings, Montana For Defendants: Gerald Neelyargued, Billings, Montana BruceToole, Billings, Montana For Amicus Curiae: Luxanand MurfittLawFirm, Helena, Montana

Submitted: March 23, 1981 Decided:

# dull10 Filed: 

# dpk!$.Oa8l

rnM,O&Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff Linder seeks a determination of the constitutionalityof the Montana Medical MalpracticePanel Act, sections 27-6-101 et seq., MCA. This Court accepted original jurisdiction of the cause in a declaratoryjudgment proceeding. We find that the act is constitutional with one exception 

### as hereafter noted. Plaintiff Linder allegedly suffered an injurywhile he 

### was

a patient of Dr. Roger Murray. His

### claim against the doctor constitutes a "malpractice claim" within the definitionof 

### section 27-6-103(2), MCA, and by statutoryrequirement should have been filedwith the panel. Section 27-6-105, MCA. Plaintiff refused tosubmit his

### claim to the panel, arguing that the Panel Act 

### is unconstitutional on 

### its face. The panel 

### was created by the 1977legislature and is 

### composed of three lawyers and three health 

### care providers. The articulated purposes of the panel 

### are to screen malpractice 

### claims inorder 

### to prevent the filing incourt of actions which donot "permit at

### least a reasonable inference of malpractice" and 

### to promote settlement of meritorious 

### claims. Section 27-6-102, MCA. A claimant must submit his

### claim 

### to the panel prior to filing in court, section 27-6-301, MCA, but the claimant 

### is not bound by the decision of the panel, section 27-6-606, MCA,

nor is the decision admissible in a subsequentjudicial action, section 27-6-704, MCA. Plaintiff challenges the constitutionalityof the 

### act on 

### its face, alleging violations of: (1)the right to a jury trial; (2)the right of 

### access to the courts; (3) substantive and procedural due process; (4)the prohibition against special legislation; (5)equal protection of the 

### laws; (6)the principle of separation of powers;(7) the taxing powers; (8)the right of public participation and the right 

### to know; (9)freedom of speech and freedom from libel. Plaintiff's firstcontention is that the mandatory submission of claims 

### to the panel unconstitutionally interferes with hisright 

### to trial by jury, asguaranteed by 1972Mont. Const., Art 11, § 26. Defendants argue that a claimant is free to continue 

### to jury trial no 

### matter what the decision of the panel, and the jury remains the final determiner of fact. Further, the panel decision is not binding, nor is it admissible at trial. Thus, there is no interferencewith the jury trial process. Defendants argue that submission 

### to the panel is merely a permissible delay in the path to the ultimatejury verdict. We agree. The Montana Constitution guarantees the litigant the right to trialby jury. This Court has held that the right to trial by jury in this 

### state is the 

### same as that guaranteed by the Seventh Amendment. Consolidated Gold & Sapphire Mining Co

# .v

# . Struthers (1910), 41Mont. 565, 571, 111 P. 152, 155. In determining the extent of thisright, the federal courtshave focused on preserving the rightof trial by jury, rather than the incidents involved in carrying out thatright; it 

### is a matter of substance, rather than form. Colgrove v. Battin (1973), 413 U.S. 149, 155-156, 93 S.Ct. 2448, 2452, 37 L.Ed.2d 522, 528. The purpose of the jury in civil cases is to assure a fair and equitable resolution of factual issues. Colgrove

## , supra, 413 U.S. at 157, 93 S.Ct. at 2453, 37 L.Ed.2d at 529. Therefore, changes which affect the form, but not the substance of the right may pass constitutionalmuster. Justice Brandeis, inapproving the use of an auditor to narrow the issues of fact for a jury and toexpress an opinion on the facts, noted:"The command of the 7th Amendment that 'the right of trial by jury shall be preserved' does not require thatold forms of practice and procedure be retained. Walker v. New Mexico & SouthernPacific R. R. Co., 165U.S. 593, 596. Compare Twining v. New Jersey, 211U.S. 78, 101. It does not prohibit the introduction of new methods fordetermining what facts 

### are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may be made. New devices may be used 

### to adapt the ancient institution

### to present needs and 

### to make of it an efficient instrument in the administration of justice. Indeed, such changes 

### are essential 

### to the preservation of the right. The limitation imposed by theAmendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determinationof issues of fact by the jury be not interfered with." Ex 

### parte Peterson (1920), 253 U.S. 300, 309-310, 40 S.Ct. 543, 546, 64 L.Ed 919, 923-924. The Montana Court and other courts have approved various pretrial procedures which burden the claimant inhiseffortsto get into court. The requirement of a pretrial conference does not violate the jury trial right. State ex re1

# . Kennedy v. District Court (1948), 121Mont. 320, 194 P.2d 256; submitting a

case to a 

### master prior to giving it 

### to the jury does not violate the Seventh Amendment. Crateo, Inc. v. Intermark, Inc. (9th Cir. 1976), 536 F.2d 862, 867-868, cert.denied 429 U.S. 896, 97 S.Ct. 259, 50 L.Ed.2d 180; Rule 53, M.R.Civ.P. Several jurisdictions have addressed the problem of allowing the panel's findings into evidence in a subsequent trial, questioning whether thispractice interfereswith the jury's fact-finding 

### role. A 

### New York Supreme Court determined thatthe jury is still the final arbiter, with the panel's opinion being treated asmerely another expert opinion. Comiskey v. Arlen (1976), 55 A.D.2d 304, 390 N.Y.S. 122, 127-128. See also Woods 

### v. Holy Cross Hospital (5th Cir. 1979), 591 F.2d 1164, 1179-1180. In Montana, the panelIsdecision is not admissible, thus precluding the claim that there is any usurpation of the jury function. We find no violation of the right 

### to a jury trial.Claimant gets a fulland final determination of his 

### claim in a jury trial setting. Requiring plaintiff to begin the process by submitting his claim to the panel 

### is a permissible interference with the jury trial right. See North Central Services, Inc. v Hafdahl (1981), Mont

# . , 625 P.2d 56, 58-59, 38 St.Rep. 372, 374-375. See 

### alsoWoods, supra; Johnson v. St. Vincent Hospital, Inc. (1980), Ind

# . ,404 N.E.2d 585, 591-593; Eastin v. Broomfield (1977), 116Ariz. 576, 570 P.2d 744, 748-749; Paro v. Longwood Hospital (1977), Mass. 

## ,369 N.E.2d 985, 991. Plaintiff next contends that the Panel Act denies him his rightof 

### access to the courts, in violation of 1972Mont. Const. Art. 11 16. Defendants argue that the delays and 

### costs are not so substantial so 

### as to deny 

### access, and that the delays and 

### costs are imposed for rational reasons. Many other jurisdictions have considered thisquestion, and with the exception of the Missouri Act,

### allotherpanel acts have been upheld against thischallenge. See Paro, supra, 369 N.E.2d at 989-990; Stateex 

### rel. Strykowski 

### v. Wilkie (1978), 81 Wis.2d 491, 261N.W.2d 434, 444; Prendergast 

### v. Nelson (1977), 199Neb. 97, 256 N.W.2d 657, 663-664; Woods, supra, 591 F.2d at 1173, fn. 16; Johnson, supra, 404 N.E.2d at 592, and 593-596; Carter v. Sparkman (1976), Fla

# .- 

## ,335 So.2d 802, 805-806. The courts addressing this issue have noted that 

### access 

### to the courts is not an independent fundamental right; 

### access is onlygiven such a statuswhen another fundamental right--such as the right 

### to dissolve the 

### marital relationship--is at issue, and

no alternative forum exists inwhich 

### to enforce that right. 

# M dcx44-ev. Connecticut (1971), 401 U.S. 371, 91S.Ct. 780, 28

L.Ed.2d 113. In 

### cases not involving a fundamental right, access may be hindered if there existsa rational basis fordoing so. Woods, supra; Paro, supra; Ortwein v. Schwab (1973), 410 U.S.656, 93 S.Ct. 1172, 35 L.Ed.2d 572. Thus the panel 

### acts have been upheld against the 

### access challenge, because the courtshave found find a rational basis for the delays and expense. In 

### all instances, the articulated basis for the panel acts has been the malpractice 

### crisis existing inmany states, with thislegislation intended as a means to limitmalpractice filingsto those which areclearlymeritorious. We find thatthe Montana Actwas enacted by the legislature for the 

### same reason. Because of the complexity of this

### case, and inview of the fact thatwe accepted originaljurisdiction, 

### we appointed a Master to 

### act as fact-finder for this Court. He heard testimony and accepted exhibits, and issued findingswhich 

### were subsequently adopted by this Court. Hisreport shows that a medical malpractice 

### crisis exists in the Stateof Montana, noting that Montana's insurance rate 

### is cited as 17thhighest in the United States, and that there is an enormous increase inphysicians carrying no insurance. He determined that the legislation was enacted in response to this

### crisis and to guarantee quality health 

### care to Montanans. Additionally, 

### we note that in 1976the legislatureauthorized an interim legislative

### committee to report tothe 1977legislatureon the medical situation inMontana. That committee compiled a report indicating that although the medical situation inMontana "appears to be less 

### critical than in many other 

### states," yet premium 

### costs are ever increasing and the availability of coverage is of "pressing concern." The hearings of the 1977 legislature indicate that the panel act 

### was enacted inresponse to this situation. The findings of the Master and the evidence presented to the legislature convinces us that the Panel Act is a reasonable response to the medical situation inMontana. Because the delays and expense arenot unreasonable in lightof the aims of the statute

### we find no impermissible burden on 

### access.This Court has upheld various other legislative enactments which delay orburden the rightof access. Without defining the statusof the right of access, nor specifically setting out the permissible legislativereasons for restricting access, this Court approved the requirement of a pretrial conference. Carlin v. District Court (1945), 118Mont. 127, 164 P.2d 155. See also Souders v. District Court (1932), 92 Mont. 272, 12P.2d 852, inwhich thisCourt approved the statute requiring plaintiff to make a deposit with the court before prosecuting a tax deed action. Other states have noted that it is reasonable to require parties to seek administrative resolutions before going to court, Strykowski, supra, 261 N.W.2d at444, and thata bond may be constitutionallyrequired before a claimant takes a malpractice 

### claim to court. Paro, supra 369 N.E. 2d at 989-990. The Florida court determined inCarter, supra, thatthe costs and delays involved in the panel procedure 

### are primarily related to discoveryand would be necessary inpreparing 

### to go to court anyway, and thus are reasonable. The plaintiff urges thisCourt 

### to followMadison v. Yunker (1978)1 Mont

# . ,589 P.2d 126, 35 St.Rep. 1311, in which 

### we found an unconstitutional denial of access in the requirement that a plaintiff demand a retraction from an alleged libelerbefore filing suit. We find that case 

### to be distinguishable from the instant case in that the Montana Constitution provides everyperson with an independent right of expression subject to being responsible for allabuses of thatliberty. The statute inMadison alsochanged the remedy for libelwhich 

### was provided elsewhere in the Constitution. 1972Mont. Const., Art. 11, S$ 7and 16. The MalpracticePanel Actdoes not offend such constitutional provisions. One court has struckdown its statute finding that the requirements of the 

### act imposed "useless and arbitrary delay."The Missouri court determined that the delay could destroy the plaintiff's remedies by abridging the right to file suit 

### immediately, which could result in 

### loss of personal serviceover defendants. See Stateex 

### re1

# . Cardinal Glennon Memorial Hospital v. Gaertner (1979), Mo

# . , 583 S.W.2d 107, 110. Plaintiff here also argues that there could be problems with the statuteof limitationsbecause 

### of the necessity of filingwith the panel before going to court. We 

### are not unmindful of these problems. However, 

### we do not find that the statutes inMontana would necessarilybring about these unfortunate results. Section 27-6-702, MCA, 

### states thatthe statuteof limitations is tolled upon receipt of the application to the panel and does not begin again until entryof and service on the partiesof the panel's decision. We construe that statute to apply to defendants both known and unknown atthe 

### time the application 

### is filedwith the panel. Additionally, the Montana Rules of Civil Procedure 

### allow the deposition of a potential witness 

### to be taken prior 

### to filing suit in court. Rule 27, M.R.Civ.P. A plaintiff, fearing thata defendantmay leave the jurisdiction, can petition the court for

an order allowing him to preserve such testimony. In sum, 

### we find sufficient safeguards within the act to protect the plaintiff's right of 

### access to the court. The burdens imposed are rationally related to the aims of the act and the act constitutes a reasonable response 

### to the medical situation. Next, plaintiff challenges the act as being violative of plaintiff's rights to substantive and procedural due process. He does not specifically set forthhisdue process claims but he appears todispute that any basiswas shown to existwhich would justify thistype of legislation. There is agreement among all courtsconsidering thislegislation, saveNorth Dakota, thatthelegislation was adopted to meet a crisis inmedical care, and thatthe legislation appears to be a rational response to that crisis. SeeWoods, supra, 591 F.2d at1175-1176; Prendergast, supra, 256 N.W.2d at 667-669. The North Dakota Supreme Court found that no such crisis had been shown to exist inNorth Dakota, and invalidated the 

### state statute in part on thisbasis. Arneson v. Olson (1978), N.D. 

## ,270 N.W.2d 125, 136. The standard articulated by most courts in considering the legislation in lightof the substantive due process claim is the "rational basis standard," i.e., the legislationwillbe upheld if the laws have a reasonable relation to a proper legislative purpose. Woods, supra, 591 F.2d at 1176; Nebbia v. New York (1934), 291 U.S. 502, 536-537, 54 S.Ct. 505, 515-516, 78 L.Ed. 940, 956-957. But 

### see Arneson, supra, 270 N.W.2d at132-133, utilizing a standard falling somewhere between "strict scrutiny" and "rational basis

# ." We subscribe to the rational basis standard and find that the Panel Actmeets this

### test in lightof the situation existing in Montana, as identified by the Master and the legislature. As

### we noted in our discussion above, 

### we 

### are satisfied that sufficient evidence was considered by the legislature in determining that therewas a near-crisis situation inMontana. We willnot substitute our judgment for thatof the legislature. Aside from the access problem which 

### is inherently a procedural due process problem, plaintiff 

### asserts a denial of due pro

### cess by reason of the existence of doctors on the panel. He claims a built-in bias in the system, which prevents a claimant from receiving a fairhearing. We note at the outset that the Montana Panel Act, unlike the legislation in other jurisdictions, precludes the introduction into evidence ata subsequent trial, of the panelIsfindings



### or decisions. Thus the onlyeffect of the panel's decisionon aplaintiffIs

### case would be 

### to discourage him from taking his

### claim tocourt. Even in those 

### states inwhich the decision 

### is admissible 

### at a 

### later trial, the courts considering thisissue have found an insufficient showing of bias

### or prejudice to amount to a denial of due process. And, inorder to effectuate the purposes of the panel, it is advisable to have medical personnel on the panel. Strykowski, supra, 261N.W.2d at446. Additionally, it is totally speculative 

### to allege that

### allhealth 

### care providers 

### are incapable of rendering an unbiased decision, and a claimant has the opportunity 

### to disqualify anymember who is in fact subject to the charge of bias. Section 27-6-404(2), MCA. See 

### alsoJohnson, supra, 404 N.E.2d at 593; Hines v. Elkhart General Hospital (N.D. Ind. 1979), 465F.Supp. 421, 429. We find claimant's due process contentions to be without 

### merit, particularlywhen considered inview of the limited effect which the panel's decision can have inMontana in subsequent litigation. We do address one issue, though, which 

### was not initiallyraised by the parties to the litigation, but which came 

### to our attention during the hearing inthis

### case. Section 27-6-704(2), MCA, provides that 

### "[no] statementmade by any person during a hearing before the panel may be used as impeaching evidence in court

# ." In order to uphold the constitutionalityof the panel act, 

### we determine that this sectionmust be severed from the act. It is fundamental 

### to our adversarial system that litigantsretain the right 

### to impeach the sworn testimony of a 

### witness testifying against them. We 

### are mindful that thisprovision



### was enacted to aid the fact-finding by the panel and 

### to preserve the confidentiality of the proceedings. But 

### we cannot say that a litigantwillreceive a fulland fairhearing if he is unable to fullycross-examine incourt the witnesses that testified inthe priorhearing

# . Thisdefect 

### is not fatal 

### to the 

### act. We find that the 

### actis still complete in itself and capable of being executed in accordancewith the legislative intent. Claimant's next contention is that the Panel Act constitutes special legislation and that it violates the equal protection guarantee of the 1972Montana Constitution and the Fourteenth Amendment. He does not pinpoint the basis of his challenge, but apparentlyhe is arguing that the medical profession as a group of potential tort defendants is getting special treatment not accorded toother tortdefendants, and thatmedically-injured plaintiffs 

### are being subjected to barriers 

### to the judicial system, not put in the way of other tortplaintiffs. This Court has indicated thatreasonable classifications of persons willbe upheld against a "special legislation" challenge, 

### or against an equal protection challenge. Stateex rel. Sparling v. Hitsman (1935), 99 Mont. 521, 532, 44 P.2d 747, 752; Statev. Craig (1976), 169Mont. 150, 156, 545 P.2d 649, 652-653. A 

### lawwhich operates in the 

### same manner upon allpersons in likecircumstances is not "special" in the constitutional sense. Sparling, supra. Other courts considering thischallenge have determined that this type of legislation is not special legislation, nor is it violative of equal protection, because it operates uniformly on a given 

### class which has been distinguished forrational reasons. Eastin, supra, 570 P.2d at 752; Johnson, supra, 404 N.E.2d at596-597. Those courts considering these questions in relation 

### to the panel acts have dealtwith the special legislation and equal protection arguments on a similar basis--looking for a rational basis for the classifications which rests on a ground of difference having a fairand substantial relation to the object of the legislation. Leuthold v. Brandjord et al. (1935), 100Mont. 96, 105, 47 P.2d 41, 45; Paro, supra, 369 N.E.2d at 987-89 and footnote 6; Eastin, supra, 570 P.2d at 750-751; Johnson, supra,404 N.E.2d at 596-597, citingRoyster Guano Co. v. Virginia (1920), 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989. We agree that thisis theproper 

### test 

### to apply in this

### case. There is no allegationof



### a fundamental right at stake, nor 

### is there a suspect classification involved. Therefore

### we need onlydetermine whether the discrimination is rationallyrelated to a legitimate 

### state interest. Statev. Craig, supra, 169Mont. at 155-157, 545 P.2d at 652-653. The burden is on the party challenging the legislationto show that the factsdo not support the legislativeenactment. Statev. Craig, supra. Wewillpresume a statute's validity, unless the constitutional violation is 

### "clear and palpable

# ."

No11 & Kenneady v. Bozeman (1975), 166Mont. 504, 507, 534 P.2d 880, 881. See 

### also Paro, supra, 369N.E.2d at 988. We conclude here thatthe claimant did not sustainhisburden of proof. Our previous discussion of the findingsof the Master and of the evidence presented 

### to the legislature convinces us that the legislatureresponded 

### to a medical situation in a rational manner. We find that the classifications 

### rest on distinctions between the groups of 

### tort plaintiffs and 

### tort defendants involved which have

a fair and rational relationship 

### to the object of the legislation. The 

### most persuasive equal protection arguments have been challenges to the limitations on recovery--a provision not included in the Montana 

### law. The Illinoiscourt struckdown a $500,000 limitation, while Nebraska upheld the same limitagainst

a special legislation and equal protection challenge, again finding 

### a rational basis for this

### limit. SeeWright v. Central Du Page Hospital Association (1976), 63 111.2d 313, 347 N.E.2d 

## 13L Prendergast, supra, 256 N.W.2d at 668-69. The objection to such a limitation is the possibility that the most seriously injured plaintiffs 

### are those who 

### arebeing prevented 

### from full recovery.No such discrimination is present in the Montana 

### law. All plaintiffsmay pursue their remedies to the fullest, conditional onlyon submitting the claim to the panel. And, again, because the panel decision is not binding nor even admissible ina subsequent court proceeding, there is no possibility of any influence on the jury. Health careproviders remain subject 

### to suit, and gain no advantage over any other group of defendants. A jury willnever be 

### aware of any decision for oragainst these defendantsby the panel. Any discrimination 

### comes only from the possibilityof discouraging suit, a result which 

### is reasonable in lightof the medical situation. We find no violation of equal protection 

### or the prohibition against special legislation. One additional argument advanced by plaintiff is that the Panel Actviolates the prohibitions in the Montana Constitution against unlawful delegation of judicial and legislativepower and infringes on the doctrineof separation of powers. 1972 Mont. Const. Art. 111, § 1, Art. V, § 1, Art. VII, § 1. Plaintiff contends that the panel has been given hearing and decisional powers, but that it cannot render a judicial decision



### or utilizeprotective discoveryprocedures. This, he contends, impedes his access 

### to the courts, and constitutes an unlawful usurpation of power by non judicial bodies. Defendants contend that the panel is atmost an advisory body and exercises no true judicial functions. Thus there is no separation 

### of powers problem and no unlawful delegation of power. The Montana Constitution demands that the three branches of government remain separate and distinct, 1972Mont

# . Const

# ., Art. 11 

## , 1,inorder tokeep each branch accountable to the people, and to prevent too much power from being lodged in any one branch of government. OINeillv. Yellowstone Irr. Dist. et al. (1912), 44 Mont. 492, 505, 121P. 283, 286. A similar provision exists inthe constitutionsof 

### most states, and 

### most states consideringthisquestionhave upheld the panel 

### acts in the face of this challenge. Eastin, supra, 570 P.2d at750; Johnson, supra, 404 N.E.2d at597-598; Prendergast, supra, 256 N.W.2d at 666-667. But 

### see Arneson, supra, 270 N.W.2d at 131-132, for a contrary holding. By the 

### terms of most panel 

### acts, the decision of the panel is admissible in court, but it is not binding inany way. Thus many courtshave found no violation of the doctrineof separation of powers, because the actions of the panel 

### are at

### most advisory and the panel has no power 

### to render an enforceable decision. The resulthas no 

### more weight than an expert opinion. Prendergast, supra; Eastin, supra. The Arizona Supreme Court noted inEastin, supra, that "I[jludicial power 

### is the power of the court 

### to decide and pronounce 

### a judgment and carry it into effectbetween persons and parties who bring a 

### case before it for decision. 

### " The Montana Court recognizes the 

### same definitionof judicial power, and has upheld other administrative bodies against thischallenge, where those bodies 

### are unable 

### to render enforceable judgments. Shea v. North-Butte Min. Co. 

### eta1

# . (1919), 55Mont. 522, 536-537, 179 P. 499, 504. The decision of the Montana panel 

### is not enforceable, and unlike the panel decisions in

### most states, it 

### is not even admissible attrial

# . Sections 27-6-606, 27-6-704 (2), MCA. Consequently, 

### we find no 

### merit inplaintiff's arguments. There



### are no constitutional violations under the Montana Act. Weneed not address the remaining issues raised by plaintiff. He contends that the panel act violates 1972Mont. Const., Art 11, S$ 7, 8 and 9, which give to the public a right toparticipate, a right to know, and give everyperson a right to

sue for slander orlibel. He additionally alleges that the legislaturehas violated 1972Mont. Const., ArtVIII, §§ 1and 2, which require that taxes shallbe levied by general 

### laws forpublic purposes, and which forbid the legislature from surrendering 

### or contracting away the power to tax. Linder has not appeared before the panel. He has not been subjected 

### to the possibility of libel 

### or slander, and he may

never be. Thus 

### we find that thisquestion is not properly before thisCourt under the factsof this

### case. Nor can he 

### assert that the public 

### is denied the right to participate 

### or the right to know. The 

### Master found: "Plaintiff Linder has not yet requested and been denied any participation inpanel proceedings 

### or any records of any proceedings, nor has plaintiff Linder yet issued and served upon the panel a subpoena for such records, nor has plaintiff Linder yet requested thatan official transcript be made of the sworn testimonyof any witness 

### or anyproceeding before the panel, nor has plainti£ f Linder yet been harmed 

### or injured by any failure orrefusal of the panel 

### or its administrativeofficers to 

### so act." Finding No. 14 Hehas not been affected by the operation of these statutes and therefore he lacks standing 

### to challenge them. Thompson v. Tobacco Root Co-op (1948), 121Mont. 445, 453, 193P.2d 811, 816. Additionally, forpurposes of this

### case

## ,Linder is not a member of the excluded public. He 

### is a necessary participant and thus 

### is not in a position 

### to assert thisright on behalf of the general public. Finally, with regard 

### to plaintiff's allegations that health 

### care providers cannot be taxed inorder 

### to fund this panel, section 27-6-206, MCA, 

### we note thatplaintiff is not a health 

### care provider. He 

### is not among those being taxed. The statute in question does not apply 

### to him and he is not affected by it. He 

### is therefore not in a position to challenge its constitutional validity on thisground. Chovanak v. Matthews (1948), 120Mont. 520, 527, 188P.2d 582, 585. Wehold the Medical Malpractice Panel Act to be constitutional, with the exception of the firstsentence of subsection 2, section 27-6-704. After severing that section from theact, 

### we find that the 

### act remains complete and 

### is constitutional.

Chief Justice