NO. 82-170 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

KARLA WHITE, Plaintiff and Respondent,

vs. STATE OF MONTANA, Defendant and Appellant.

Appeal from: District Court of the Eighth Judicial District, In and for the County of Cascade Honorable John McCarvel, Judge presiding. Counsel of Record:

For Appellant: John Bobinski and Michael Young argued, Dept. of Admin.,

Helena, Montana For Respondent: Hoyt and Trieweiler, Great Falls, Montana Erik B. Tueson argued, Great Falls, Montana

For Amicus Curiae: Anderson, Edwards & Molloy, Billings, Montana

Richard W-Anderson argued, Billings, Montana Anderson, Brown, Gerbase, Cebull & Jones, Billings, Montana

James L. Jones and Ann E. Wilcox, Billings, Montana Michael J. McKeon, (Donna Bartel) Anaconda, Montana Harold F. Hanser, County Attorney, Billings, Montana JimNugent, City Attorney, Missoula, Montana Peterson, Schofield & Leckie, Billings, Montana

Kenneth D. Peterson, Billings, Montana French, Grainey & Duckworth, Ronan, Montana

Edward K. Duckworth (Donna Bartel) Ronan, Montana J. Daniel Hoven, Legal Services Division, Helena, Montana David Gliko, City Attorney, Great Falls, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana Burgess, Joyce & Whelan, Butte, Montana

Thomas F. Joyce, Amy Foran, Butte, Montana Milodragovich, Dale & Dye, Missoula, Montana

Harold V. Dye, Missoula, Montana Alexander and Baucus, Great Falls, Montana

Neil Ugrin, Co. of Cascade & City of Great Falls, Great Falls, Montana

Submitted: February 3, 1983

Decided: April 8, 1983

Filed:

## 9PR

## 8 

## 1983

-.

### .

ClerkMr. JusticeFrank B. Morrison, Jr. delivered the Opinion of the Court. The State of Montana appeals from a summary judgment entered by the DistrictCourt of the Eighth Judicial District, Cascade County, which found section 2-9-104,MCA, limitation

on governmental liability fordamages in tort, and section 2-9-105,MCA, providing for state immunity from exemplary and punitive damages,both to be unconstitutional. Plaintiff filed an action seeking damages for personal injury alleging negligence on thepart of defendant State of Montana. The State filed an answer alleging that the government was immune from liability for noneconomic damages and for punitive damages. Plaintiff moved the court for summary judgmenton thesedefenses,claiming the limitations found in the State Tort Claims Act are unconstitutionaland void. Plaintiff KarlaWhite intends to prove that as a result of the reckless conduct of the Stateof Montana, shewas attacked by a violent and dangerous criminal,and that as a result, shehas sustained severe emotional injurieswhich will significantly affecther ability to live a happy and fulfilling life, althoughher demonstrable economic losses will be relatively insignificant. The allegation of gross negligence against the Stateof Montana ispremised upon the Statepermitting the allegedly violent and dangerous person to escape from themental hospital at Warm Springs and remain free for a period of fiveyears without serious attempts to locate and reincarcerate this individual. Plaintiffwas attacked in Great Falls,Montana, approximately five years after the inmate escaped fromWarm Springs. We find the following issues to be dispositive: 1. Do the limitationson recovery against the State of Montana asprovided for in section 2-9-104,MCA,violateconstitutional guarantees of equal protection? 2. Does the prohibition against exemplary and punitive damage assessments asprovided for in section 2-9-105,MCA, violate constitutional guarantees of equal protection and dueprocess? DOES SECTION 2-9-104,VIOLATE CONSTITUTIONAL GUARANTEES OF EQUAL PROTECTION? Section 2-9-104,MCA,provides as follows: "(1) Neither the state, a county, municipality, taxing district,nor any other political subdivision of the state is liable in tort action for: (a) noneconomic damages; or (b)economic damages suffered as a result of an actor omissionof an officer, agent, or employee of that entity in excess of $300,000 for each claimantand $1million dollars for each occurrence. (2) The legislature or the governing body of a county, municipality, taxing district,or other political subdivision of the statemay, in its solediscretion, authorize payments for noneconomic damages or economic damages in excess of the sum authorized in subsection (1)(b)of this section, or both, uponpetition of plaintiff following a final judgment. No insurer is liable for such noneconomicdamages or excess economic damages unless such insurer specifically agrees by written endorsement toprovide coverage to the governmental agency involved in amounts in excess of the limitation stated in this sectionor specifically agrees to provide coverage fornoneconomic damages, inwhich case the insurermay not claim the benefits of the limitation specificallywaived." Plaintiff attacks section 2-9-104(1), MCA, by arguing itviolates equal protection by classifyingpeople in three different ways: 1. It classifies victims of negligence who have sustained noneconomicdamageby whether they have been injuredby a nongovernment tort-feasoror a government tortfeasor. It totally denies any recovery to the latter class. 2. It classifies victims of government tort-feasorsby whether they have suffered economic damages or noneconomic damages. It allows recovery to the former group up to$300,000 while it totallydeniesrecovery to the latter group. 3. Itclassifiesvictims of government tort-feasors by the severityof thevictims' injuries. Itgrants recovery to those victimswho have not sustained significantinjury by allowing them torecover up to $300,000 ineconomic damages. Itdiscriminatesagainst the seriously injured victims by denying recovery forany injuriesover $300,000. The constitutionalguarantee of equalprotection requires allpersons tobe treated alikeunder likecircumstances. U.S. Const., Amend. XIV, Section 1; 1972Mont. Const., Art. 11, Section 4. If a statuteaffects a "fundamental right," itmust bemeasured by a strictscrutinytest. Dunn

v. Blumstein (1972), 405 U.S. 330, 92 S.Ct. 995, 31L.Ed.2d 274, 284; Shapirov. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; Matter of Estateof Merkel (1980), Mont. 

### , 618 P.2d 872, 37 St.Rep. 1782. Application of thistest requires thatthe statutory scheme be found unconstitutional unless the Statecan demonstrate that such law isnecessary "topromote a compelling government interest." Dunn v. Blumstein, supra. The Stateargues thattheright tobring a civilaction forpersonal injuriesisnot a fundamental right and that the statutory schememust be judged by the less burdensome rationalbasis test. Werejectthe State's argument and adopt thatof theplaintiff. Article 11, section 16of theMontana Constitution guarantees thatallpersons shallhave a "speedyremedy 

# . .. for every injuryof person, property, orcharacter." In Corrigan v. Janney, (1981)

### , Mont. 

### , 626 P.2d 535, 38 St.Rep. 545, thisCourtheld thatit is "patentlyunconstitutional" forthe legislature topass a statutewhich denies a certainclass ofMontana citizens their causes of action forpersonal injury and wrongful death. We affirm and refine our holding inCorriganv. Janney, supra;we hold that the Montana Constitution guarantees that allpersons have a speedy remedy for every injury. The language "every injury" embraces all recognized compensable components of injury, including the right to be compensated for physical pain andmental anguish and the loss of enjoyment of living. Therefore, strict scrutinyattaches. The Stateargues that ithas shown a compelling state interest in "insuring that sufficient public fundswill be available to enable the State and local governments to provide those serviceswhich they believe benefit their citizensand which their citizensdemand." The State further argues that the governmenthas to engage in a wide variety of activities, some of which are extremely dangerous and not confronted by private industry. TheDistrict Court found that, "this 'bare assertion',however, 'falls far shortof justifying'a discrimination which infringes upon fundamental rights." We agree. The government has avalid interest inprotecting its treasury. However,payment of tort judgments is simply a cost of doing business. There is no evidence in the record that the payment of such claimswould impair the State's ability to function as a governmental entity or create a financial crisis. In fact, the State of Montana does have

an interest in affording fair and reasonable compensation to citizensvictimized by the negligence of the State. Therefore, the strict scrutiny testmandated by the implication of a fundamental righthas notbeen satisfied and the statute prohibiting recovery fornoneconomicdamage isuncon~tituti~nalunder the Montana State Constitution. We recognize that some limit on the State's liability may comportwith the constitutional guarantees of equal protection. However, sucha limitationcannotdiscriminate between those who sufferpain and loss of life quality and thosewho primarily suffer economically. We are left, in reviewing the constitutionality of section 2-9-104,MCA, with the question ofwhether the limitation on economic damages of $300,000 for each claimant and $1,000,000 for each occurrence is constitutional. Ifwe

were to leave intact thatportion of section 2-9-104,MCA, which limits economic damages to the sum of $300,000 for each clailnant and onemillion dollars for each occurrence,

we would thenbe left with a situationwhere recovery for pain and sufferingwas unlimited and recovery for economic damageswas limited asprescribed by the statute. New discrimination problems would then exist; those whose primary losswas intangiblecould recoverwithout limit but thosewho suffer tangible losseswould be limited. Furthermore,at this point the state has failed to demonstrate a compelling state interest which would justify any limitation. We therefore declare section 2-9-104,MCA, in its entirety, to be unconstitutional. DOES THE PROHIBITION AGAINST EXEMPLARYAND PUNITIVE DAMAGES FOUND IN SECTION 2-9-105, MCA,VIOLATE EQUAL PROTECTION? Thepunitive damagequestion is different from the issue of limiting compensatorydamages. Plaintiffhas a constitutional right to redress for all of her injuries but shedoesnothave a constitutionalright to recover punitive damages. Inreviewing the constitutionality of a statute immunizing the State frompunitive damage assessments,we apply the "rationalbasis" test rather than the "strict scrutiny"test. There exists a rationalbasis fordistinguishinggovernmental entities from others in the application of punitive or exemplary damage law. Theprimary purpose of assessing punitives is to punish thewrongdoer and through that punishment, deter future unlawful conductof the tortfeasor and otherswho might be inclined to engage in like conduct. Theproblemwith assessing punitive damages against the government is that the deterrent effect is extremely remote and innocent taxpayersare, in fact, the onespunished. Those taxpayershave littleor no control over the actions of the guilty tort-feasor. This problemwas addressed by the United States Supreme Court in City of Newport v. FactConcerts, Inc. (1981),453 U.S. 247, 101S.Ct. 2748, 69 L.Ed.2d 616,wherein the Court stated: "Punitivedamages by definition are not intended to compensate the injuredparty,but rather to punish the tortfeasorwhosewrongful actionwas intentionalormalicious, and to deter him and others from similar extreme conduct. SeeRestatement (Second) of Torts, S908 (1979);W. Prosser, Handbook of the Law of Torts 9-10 (4thed. 1971). Regarding retribution,it remains true that an award of punitive damages against amunicipality

'punishes' only the taxpayers,who took no part in the commission of the tort. Thesedamages are assessed over and above the amountnecessary to compensate the injured party. Thus, there is no questionhere of equitably distributing the losses resulting from officialmisconduct. Cf. Owen v. City of Independence, 445U.S., at 657, 100S.Ct., at 1418. Indeed,punitive damages imposed on a municipality are in effect awindfall to a fully compensatedplaintiff,and are likely accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill. Neither reason nor justice suggest that such retribution shouldbevisited upon the shoulders of blameless or unknowing taxpayers." 453U.S. at 266-67, 101 S.Ct. at 2759-60, 69 L.Ed.2d at 632. We find that section 2-9-105,MCA, constitutionally creates immunity from punitive damage assessments for governmental entities. Amicus curiae has presented the issue of whether the limitations set forth in section 2-9-104,MCA, are unconstitutional in that the limitationswere notvoted upon by the peoplebut were adopted by the legislature. Amicus argues that,by adopting the limitations the legislature amended the constitution. We find this argument interesting but not dispositive in light of our holding that the questioned section violates equal protection of law. The judgment of the District Court finding section 2-9- 104,MCA, unconstitutional is affirmed. The judgment of the DistrictCourt finding section 2-9-105,MCA, unconstitutional is vacated. We remand this case for trial to be conducted in conformity with the views herein expressed.

We concur:

JusticesMr. Justice L. C. Gulbrandsonconcurringinpartand dissentinginpart:

I concur with the holding of the majority opinion that the state and other governmental entities are immune from exemplary and punitive damages and that noneconomic damages are recoverable, but I respectfully dissent from the holding that section 2-9-104, MCA, is, in its entirety, unconstitutional. That holding, in my opinion, is somewhat gratuitous inasmuch

as section 2-9-104(1) (b), MCA, was not raised or argued before the District Judge. Counsel for plaintiff, in his reply brief below, filedFebruary 25, 1982, stated: "Plaintiffsdamages are, for all intents and purposes, noneconomic." S e c t i o n 2-9-104(1)(b), settinga limiton the recovery for economic damages at $300,000 for each claimant and $1 million for each

occurrence

## , was not, therefore, properly before the District Court. By constitutional amendment, the legislature was clearly given authority to structure governmental immunity by two-thirds vote of each house. The legislature, in setting the limits at $300,000 and $1million and in devising the post-judgment procedures (2-9-104(2) )

## , apparentlywas balancing the concept of ideal justice and the need for fiscal security, necessary for governmental entities to, in fact, provide obligatory services to the public. The Wisconsin Supreme Court, in Sambs v. City of Brookfield (1980), 97 Wis.2d 356, 293 N.W.2d 504, used the following language to describe the problem. "It is the legislatureIsfunction to evaluate the risk, the extent of exposure to liablity, the need to compensate citizens for injury, the availabilityof and cost of insurance, and the financial condition of the governmental units. It is the legislature's function to structure the statutoryprovisions, which will protect the public interest inreimbursing the victim and in maintaining government services and which will be fair and reasonable to the victim and at the same timewillbe realistic regarding the financial burden to be placed on the taxpayers." The obligations imposed upon governmental entities must be performed, even though the risks inherent in performing absolute obligations are great. The responsibility for con£ining

## ,housing, and rehabilitation of persons convicted of criminal activity; the treatment and supervision of mental patients at government institutions or under government programs; the planning, construction, and maintenance of thousands of miles of highways; the operation of municipal transportation systems and airport terminals; and the operation and maintenance of schools, playgrounds, and athletic facilities are only a few of those obligations. Section 2-9-104(2) 

## , now declared unconstitutional by the majority

### , contains language limiting the exposure of insurers. Undoubtedly, there are insurance contracts in exis tence

## , which

now should be rewritten to provide coverage for the unlimited liabilityfacing governmental entities

# . In my view, this Court could, and should, find that the $300,000 and $1million limitsapply to economic and noneconomic losses, and that the post-judgment procedures for excess judgments should be retained, because those procedures include entitiesother than the legislature. 

# fPL * JusticeMr. Justice Fred J. Weber concurs and dissents as follows: I concur in the holding of the majority that section 2-9-105, MCA, creates immunity from punitive damage assessments for governmental entities. I dissent from the remainder of themajority holding. The majority concludes that Article 11, Section 16 of the Montana Constitution guarantees that all persons have a speedy remedy for every injury. A review of the history of this constitutional provision, alongwith the interpretations of this Court, raises serious challenges to that conclusion. Article 111, Section 6 of the 1889 Montana Constitution stated: "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shallbe administeredwithout sale, denial, 6rdelay.

### " Article 11, Section 16 of the 1972 Montana Constitution ("Section 16") used the same wording regarding courts of justice and speedy remedy, placing a period following the word "character." The 1972 Constitution then inserted a new sentence providing that no person should be deprived of full legal redress for injury incurred in employment with certain exceptions in connection with Workmen's Compensation, which is not applicable. The last sentence of the provision is identical to the final clause in the 1889 paragraph regarding the administrationof justice. A review of the 1972 Constitutional Convention proceedings shows that the only stated intent to broaden or change the 1889 Constitutional provision concerned the question on Workmen's Compensation. We must conclude that the 1972 Convention did not intend to change the existing constitutional provisionwith regard to courts of justice and speedy remedy.Initially the decisions of this Courtwere consistent in the analysis of "Section 16" and its constitutional predecessor. In Shea v. North-Butte Mining Co. (1919), 55 Mont. 522, 179 P. 499, the plaintiff miner sought recovery forpersonal injury alleged to have been suffered through the negligence of the defendants in the course of plaintiff's employment as a miner. The claim of plaintiff in Shea is directly comparable to thepresent case. Plaintiff contended that the limited right of recovery through the Industrial Accident Board deprived him of access to the courts as guaranteed under the constitution. This Court stated the contentionof the plaintiff as follows: 

### "[Wle gather from the brief of counsel that their objection is that, though the Act is elective, it in effect closes access to the courts by the injured employee and compels him to seek relief, if he can obtain any at all, through the Industrial Accident Board. In other words, since the section declares in expressed terms that there shall be a judicial remedy for every wrong suffered by one person at the hands of another, it is beyond the power of the legislature to provide any other remedy, though such other remedy is entirely optional." Shea, 55 Mont. at 530, 179 P. at 501. In response to this contention, the Court then reached a conclusion directly contrary to the holding of the majority in the present case. This Court stated: "But counsel are in error in supposing that for this reason the Compensation Act is repugnant to the section of the Constitution quoted. Their contention is based upon a misconception of the scope of the guaranty therein contained. A reading of the section discloses that it is addressed exclusively 

### -- to the courts. The courts are its sole subject matter, and it relates directly to the duties of the judicial department of the government. It means no more nor less than that under the provisions of the Constitution and laws constituting them, the courts must be accessible to all persons alike, without discrimination, at the time or times and theplace orplaces appointed for their sitting,and afford a speedy remedy for every wrong recognized by law as being remediable in a court. The term 'injury' as therein used, means such an injury as the law recognizesor declares to be actionable. Many of the state Constitutions contain similar provisions, and the courts,including our own, have held either expressly or impliedly that their meaning is that above stated. (cases cited)

# . . . [Altthis lateday it cannotbe controverted 

### - that 

### - the remedies recogn=ed 

### & tE common law in this class of cases, together with all rights of action to arise in future may be altered 

### - or abolished 

### -- to the extent of destroying 

### - actions 

### - for injuries 

### - or death arising from negligent accident, so long 

## - as there 

### - is no impairment 

### - of rightsalready accrued. 

## T~G necessarily follows from the proposition, well established by the courts everywhere, that no one has a vested right in any rule of the common-law." Shea, 55 Mont. at 532-34, 179 P. at 502-03.

(emphasisadded) The holdinq in Shea was restated in Reeves v. Ille Electric Company (1976), 170 Mont. 104, 551 P.2d 647. Plaintiff sought damages for the death of a student electrocuted in a whirlpool bath in the Montana State University Fieldhouse at Bozeman. The architect and the builder contended that plaintiff was barred from suit under an architectsand builders statute, which limited actions for damages to commencement within ten years after completion of the improvement. Plaintiff contended that the statute was unconstitutional under "Section 16" because it denied the plaintiff access to the courts and a speedy remedy for in-juries and damages. This Court quoted the above portions of the Shea opinion, as well as other provisions, then concluded: "Assuming arguendo, that plaintiff would have a claim under common law, the legislature 

## -- is not constitutional1 rohibited from eliminatinq a common law rigit'as it did in Shea and ~tewarf [Stewart 

### v. Standard Publishing Co. (1936), 102 Mont. 43, 55 P.2d 694.1 In Section 93-2619, the legislaturedid not interferewith any vested right of plaintiff, but simply cut off accrual of the right to sue after ten years." 170 Mont. at 110-111, 551 P.2d at 651. (emphasisadded) In Reeves, this Court affirmed the judgment of dismissal in favor of the architect and the summary judgment in favor of the electrical contractor,thereby affirming the statement in Shea that the legislature may eliminate a remedyrecognized by the common law, together with all rights of action for an injury or death, nothwithstanding the constitutional provisions of "Section 16." This Court again considered the question in Linder v. Mont

# . Smith (1981), 

## , 629 P.2d 1187, 38 St.Rep. 912, in which the plaintiff sought a determination of the constitutionality of the Montana Medical Malpractice Panel Act. The plaintiff contended that the effect of the Act was to deny him right of access to the courts in violation of "Section 16" of the Constitution. In holding against the plaintiff on this issue, this Court stated: "The courts addressins this issue have noted that the courts is not an independent access to 

### - - 

## - - fundamentT1 right; access js only given such a status when 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. Boddie v. Connecticut (1971)

## , 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113. In cases not involving a fundamental right,accessmay be hindered if there exists a rational basis for doing so. Woods [v. Holy Cross Hospital (5th Cir. 1979)

## , 591 F.2d 11641 ; Paro [v. Longwood Hospital (Mass. 1977), 369 N.E.2d 9851; Ortwein v. Schwab (1973), 410 U.S. 656, 93 St.Ct. 1172, 35 L.Ed.2d 572." Linder, 629 P.2d at 1190, 38 St.Rep. at 915. (emphasisadded) Up to 1981, the holdings of this Court were consistent in the interpretation of the 1889 constitutional Article 111, Section 6and the 1972 constitutional Article 11, Section 16. We would also note that by enactment of the original provisions of the 1889 Constitution in 1972, the Constitutional Convention is considered to have adopted the interpretations of those constitutional provisions by the Montana Supreme Court. A general rule is stated in 16 C. J.S. Constitutional Law 535 (1956): "Where a constitutional provision similar ox identical to that contained in a prior constitution or statute, or in the constitution of another state, is adopted, it is presumed that such provision was adopted with the construction previously placed on it."No Montana case has addressed the question of a prior constitutional provision. With regard to the theory of statutory interpretation and approval- of prior interpretations, 2A C. Sands, Sutherland Statutory Construction S45.12 (4thed. 19731,p. 37: "Judicial interpretationof statutes is conditioned by various additionalpresumptionswhich the courts indulge on the basis of abelief in their essential reasonableness. Thus, legislative languagewill be interpreted on the assumption that the legislature was aware of existing statutes, the rules of statutory construction,and judicial decisions that if a change occurs in legislative language a change was intended in lesislative result, and that reenactment of a statute without change in its 

### -- language indTcaces approval of interpretations rendered or to the reenactment. On similar 

### -- grounds, it is not presumed that the common law is changed by statutory enactment; and statutes in derogation of the common law are strictly construed." (emphasisadded) This rule of statutory construction is applicable to the interpretation of the constitutional provisions of Montana. See Statev. Cardwell (1980), Mont

# . , 609 P.2d 1230, 1232, 37 St. Rep. 750, 751-752; Keller v. Smith (1976), 170 Mont. 399, 404, 553 P.2d 1002, 1006; School Dist. No. 12, Phillips County v. Hughes (19761, 170 Mont. 267, 552 P.2d

In Corrigan 

### v. Janney (1981), Mont 

## , 626 P.2d 838, 38 St.Rep. 545, which was decided two months prior to Linder v. Smith, we find a contradictory position to have been taken by this Court. In Corrigan, pertaining to the electrocution of a man in a bathtub,we reached the decision which is relied upon by themajority. After quoting "Section 16" with regard to speedy remedy, we (including the undersigned) stated: "It would be patently unconstitutional to deny a tenant all causes of action for personal injuries or wrongful death arising out of the alleged negligent management of rental premises by a landlord. If this action were to be taken away, a substitute remedy would have to be provided.Arguably, the repair and deduct statuteprovides an alternative remedy for damage to the leasehold interest. However, in no way can it be considered an alternative remedy for damages caused by personal injury or wrongful death.

"In summary, we overrule Dier v. Mueller, supra, and hold that our Constitution requires that plaintiff have a formof redress forwrongful death and survival damages." Corrigan, 626 P.2d at 840-841, 38 St.Rep. at 548-549. Unfortunately, in Corrigan we failed to analyze any of the above-cited cases, and also failed to distinguish or overrule the same. In addition, we did not consider the effect of reenactment of "Section 16" in the 1972 Constitution. Unfortunately our constitutional statements in Corrigan were not supported,and we could have overruled Dier

v. Mueller without a constitutional foundation. 

### - It now becomes particularly unfortunate when the unsupported holding of Corrigan is expanded to form the foundation for the present majority opinion. Section 2-9-104, MCA, adopted in 1977, with a modification by amendment in 1979, has been found unconstitutionalby themajority opinion. It is important to analyze the history and background of this section. It was enacted as a result of power given to the Legislature under Article 11, Section 18 of the Montana Constitution. As originally adopted in 1972, Section 18 said only the following: "The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property." The proceedings of the Constitutional Convention show an almost universal approval of total elimination of sovereign immunity. However, that viewpoint was expressly rejected by the vote of the people. An amendmentwas proposed by Senate Joint Resolution No. 64, laws of 1974, which was adopted bythe people at the general election of November 5, 1974. The amendmentadded the following exception to Section 18: 

# ".

.

# . except as may be specifically provided by law by a 2/3 vote of each house of the legislature." The grant of power to the Legislature contained in that exception was made two years after the Constitutional Convention, and is the most recent expression contained in the Constitution of thewill of themajority of the voters of Montana regarding sovereign immunity. Following this referendum vote, in 1977 the Legislature by a 2/3 vote of both houses adopted Section 2-9-104, MCA. In a similar manner, it amended that section in 1979. There must be a balancing of Sections 16 and 18, Article I1 of the Montana Constitution. "All constitutional provisions have equal dignity." 16 C.J.S. ConstitutionalLaw S23. Unless Section 2-9-104, MCA violates federal constitutional provisions, Ido not see how the majority can disregard Section 18 and conclude that "Section 16" grants remedies which unquestionably override the specific grant of legislative authority in Section 18. The test to be applied to determine if equal protection has been givenwas recently enunciated inMatter of Estate of Merkel (1980) Mont

# . , 618 P.2d 872, 874, 37 St.Rep.

"The legislature is empowered to classify persons forpurposes of legislation, Statev. craiq (1976), 169 Mont. 150, 156, 545 P.2d 649, 653, and in reviewing a statute, this Court pre.sumes that the statute is constitutional. Great Falls Nat. Bk. 

### -- v. McCormick (1968) 152 Mont. 319, 323, 448 P.2d 991, 993. Appellant admits that this classification does not involve a 'fundamental right' or a 'suspect class

### '

## ,which would require a finding by this Court of a compelling state interest in order to uphold the class. State v. Jack (1975),167 Mont. 456, 461, 539 P.2d 726, 729. Rather, this Court need only determine that the

'classification [is]reasonable,not arbitrary,and must rest upon some ground of difference having afair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.

# . .I Statev. Craig, supra, 169 Mont. at 156, 545 P.2d at 653. "The appellant has the burden of proving that the classification is arbitrary, Statev. Jack, supra, 167 Mont. at 461, 539 P.2d at 729, a burden which appellanthas not sustainedhere." In accordance with the constitutional provisions and interpretations of this Court as previously cited, I would hold that "Section 16" does not contain a grant of a fundamental right. As a result the plaintiff has the burden of proving that the classification is arbitrary. Plaintiff has not met thatburden. In view of the provisions of Article 11, Section 18 of the Montana Constitution,under which the Legislature was specifically granted the right to provide for sovereign immunity by a 2/3 vote of each house, I would. reverse the District Court's holding that Section 2-9-104, MCA, is unconstitutional. Examples of statutory limitations on damage awards which have withstood equal protection challenges are contained in the following: Sambs v. City of Brookfield (1980)97Wis.2d 356, 293 N.W.2d 504,cert. denied, 449 U.S. 1035, 101 S.Cf;,611, 66 L.Ed.2d 497; Estate of Cargill 

### v. City of Rochester (1979) 119 N.H. 661, 406 A.2d 704, appeal dism'd. 445 U.S. 921, 100 S.Ct. 1304, 63 L.Ed.2d 754; State v. Silva, (1971) 86 Nev. 911, 478 P.2d 591;

L -4-i i.1& Siefert v. Standard Paving Co. (1976) 64 I11.2d 109, 355 N.E.2d 537; and Johnsonv. St. Vincent Hospital, Inc. (1980) Ind. 

## , 404 N.E.2d 585. Based upon the rules described in the majority opinion, I conclude that the right to bring the present civil action for personal injuries is not a fundamental right and that the rational basis test therefore should be applied. I would find that there is a rational basis for the distinction between non-economicI.'. L,

### .

damages and economic damages as contained in section 2-9-104, MCA

# .Further, even if we accept the majority conclusion that there has been a denial of equal protection under the United States Constitution, a different conclusion should be reached. The strongest argument under the majority theory is the claim of discriminationbetween thosewho suffer economic damages and those who suffer non-economic damages. Having reached the conclusion that the classification between those two types of damages justifies a declaration of unconstitutionality under the equal protection clause, the majority could still give effect to the intent of the Legislature. This could be done without a declaration that the entire section is unconstitutional. This Court has previously held that if a part of a statute is invalid but severable, the portion which is constitutional may stand while the unconstitutional part is stricken. In Montana Auto. Asslnv. Greely (1981) Mont. 

## , 632 P.2d 300, 311, 38 St.Rep. 1174, 1187,this Court stated: "If an invalid part of a statute is severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected. State 

### v. Fire Department Relief Association, Etc. (1960) 138 Mont. 172, 178, 355 P.2d 670, 6737~ statute 'is not destroyed in toto because of an improper provision, unless such provision is necessary to the integrity of the statute or was the inducement to its enactment.' Hill v. Rae (1916), 52 Mont. 378, 389-90, 158 ~7826, 831. If, when an unconstitutional portion of an act is eliminated, the remainder is complete in itself and capable of being executed in accordance with the apparent legislative intent, it must be sustained. Gullickson v. Mitchell (1942)

## , 113 Mont. 359, 375, 126 P.2d 1106, 1114." Applying this principle to section 2-9-104, MCA, we find that it is possible to eliminate from section 2-9-104, MCA, those portions which are lined through, leaving the balance of the section capable of execution in accordancewith the apparentlegislative intent. The following sets out such changes which could be made in section 2-9-104,MCA: "(1) Neither the state, a county, municipality, taxing district, nor any other political subdivision of the state is liable in tort action fort

fbj--Eeenemie damages suffered as a result of an act or omission of an officer, agent, or employee of that entity in excess of $300,000 for each claimantand $1million for each occurrence. (2) The legislature or the governing body of a county, municipality, taxing district, or other political subdivision of the statemay, in its sole discretion, authorize payments for nen-eeenemie damages-er-eee~em*e damages in excess of the sum authorized in subseetie~-4&+4bj-egthis section,e~ bethi uponpetition ofplaintiff followinga final judgment. No insurer is liable for such 

### en-eeenemie damages er eneess eeenemie damages unless such insurer specifically agrees by written endorsement to provide coverage to the governmental agency involved in amounts in excess of the limitations stated in this section,er speeihiea&&y agrees te previde eeverage fer ne~-eee~emie damages? in which case the insurer may not claim the benefits of the limitations specifically waived.

### " If we were to eliminate the portions of the section which are lined through, the remaining portion contains the essential elements of the section, that being that the State

or other political subdivision is not liable in tort action for damages in excess of $300,000 for each claimant and one million dollars for each occurrence, with the further provisions as to legislative authorization of payments or payments under insurance coverage which may exceed the previous limits. It seems to me that we can properly conclude that this is the action which the Legislature would have taken had it been aware of a constitutional limitation

on its right to excludenon-economic damages. Certainly such

an interpretation recognizes legislative intentas contrasted to a declaration of unconstitutionality for the entire section. In addition such an interpretation recognizes theright on the part of the people of Montana to allow some degree of sovereign immunity as contrasted to the reinstatement of a ban on sovereign immunity.

I concur in the foregoing dissent of Justice Weber. 

# "p&.$\.Wd&9 Chief Justice