NO. 82-170 

IN THE 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 

Jim Nugent, 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 -. . 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion 

of the Court. 

The State of Montana appeals from a summary judgment 

entered by the District Court of the Eighth Judicial District, 

Cascade County, which found section 2-9-104, MCA, limitation 

on governmental liability for damages 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 the part 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 

judgment on these defenses, claiming the limitations found 

in the State Tort Claims Act are unconstitutional and void. 

Plaintiff Karla White intends to prove that as a result 

of the reckless conduct of the State of Montana, she was 

attacked by a violent and dangerous criminal, and that as a 

result, she has sustained severe emotional injuries which 

will significantly affect her ability to live a happy and 

fulfilling life, although her demonstrable economic losses 

will be relatively insignificant. The allegation of gross 

negligence against the State of Montana is premised upon the 

State permitting the allegedly violent and dangerous person 

to escape from the mental hospital at Warm Springs and 

remain free for a period of five years without serious 

attempts to locate and reincarcerate this individual. 

Plaintiff was attacked in Great Falls, Montana, approximately 

five years after the inmate escaped from Warm Springs. 

We find the following issues to be dispositive: 

1. Do the limitations on recovery against the State of 

Montana as provided for in section 2-9-104, MCA, violate 
constitutional guarantees of equal protection? 

2. Does the prohibition against exemplary and punitive 

damage assessments as provided for in section 2-9-105, MCA, 

violate constitutional guarantees of equal protection and 

due process? 

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 

act or omission of an officer, agent, or employee 

of that entity in excess of $300,000 for each 

claimant and $1 million dollars for each occurrence. 

(2) The legislature or the governing body of a 

county, municipality, taxing district, or other 

political subdivision of the state may, in its 

sole discretion, authorize payments for noneconomic 

damages or economic damages in excess of the sum 

authorized in subsection (1) (b) of this section, 

or both, upon petition of plaintiff following a 

final judgment. No insurer is liable for such 

noneconomic damages or excess economic damages 

unless such insurer specifically agrees by written 

endorsement to provide coverage to the governmental 

agency involved in amounts in excess of the 

limitation stated in this section or specifically 

agrees to provide coverage for noneconomic damages, 

in which case the insurer may not claim the benefits 

of the limitation specifically waived." 

Plaintiff attacks section 2-9-104(1), MCA, by arguing 

it violates equal protection by classifying people in three 

different ways: 

1. It classifies victims of negligence who have 

sustained noneconomic damage by whether they have been 

injured by a nongovernment tort-feasor or a government tortfeasor. It totally denies any recovery to the latter class. 

2. It classifies victims of government tort-feasors by 

whether they have suffered economic damages or noneconomic 

damages. It allows recovery to the former group up to 
$300,000 while it totally denies recovery to the latter 

group. 

3. It classifies victims of government tort-feasors by 

the severity of the victims' injuries. It grants recovery 

to those victims who have not sustained significant injury 

by allowing them to recover up to $300,000 in economic 

damages. It discriminates against the seriously injured 

victims by denying recovery for any injuries over $300,000. 

The constitutional guarantee of equal protection 

requires all persons to be treated alike under like circumstances. U.S. Const., Amend. XIV, Section 1; 1972 Mont. 

Const., Art. 11, Section 4. If a statute affects a "fundamental 

right," it must be measured by a strict scrutiny test. Dunn 

v. Blumstein (1972), 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 

274, 284; Shapiro v. Thompson (1969), 394 U.S. 618, 89 

S.Ct. 1322, 22 L.Ed.2d 600; Matter of Estate of Merkel 

(1980) , Mont. , 618 P.2d 872, 37 St.Rep. 1782. 

Application of this test requires that the statutory scheme 

be found unconstitutional unless the State can demonstrate 

that such law is necessary "to promote a compelling government 

interest." Dunn v. Blumstein, supra. 

The State argues that the right to bring a civil action 

for personal injuries is not a fundamental right and that 

the statutory scheme must be judged by the less burdensome 

rational basis test. We reject the State's argument and 

adopt that of the plaintiff. 

Article 11, section 16 of the Montana Constitution 

guarantees that all persons shall have a "speedy remedy . . . 

for every injury of person, property, or character." In 

Corrigan v. Janney, (1981) , Mont. , 626 P. 2d 535, 

38 St.Rep. 545, this Court held that it is "patently unconstitutional" for the legislature to pass a statute which denies a certain 
class of Montana citizens their causes of action for personal 

injury and wrongful death. We affirm and refine our holding 

in Corrigan v. Janney, supra; we hold that the Montana 

Constitution guarantees that all persons 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 and mental 

anguish and the loss of enjoyment of living. Therefore, 

strict scrutiny attaches. 

The State argues that it has shown a compelling state 

interest in "insuring that sufficient public funds will be 

available to enable the State and local governments to 

provide those services which they believe benefit their 

citizens and which their citizens demand." The State further 

argues that the government has to engage in a wide variety 

of activities, some of which are extremely dangerous and not 

confronted by private industry. The District Court found 

that, "this 'bare assertion', however, 'falls far short of 

justifying' a discrimination which infringes upon fundamental 

rights." We agree. 

The government has a valid interest in protecting 

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 claims would 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 

citizens victimized by the negligence of the State. Therefore, 

the strict scrutiny test mandated by the implication of a 

fundamental right has not been satisfied and the statute 

prohibiting recovery for noneconomic damage is uncon~tituti~nal 
under the Montana State Constitution. 

We recognize that some limit on the State's liability 

may comport with the constitutional guarantees of equal 

protection. However, such a limitation cannot discriminate 

between those who suffer pain and loss of life quality and 

those who primarily suffer economically. 

We are left, in reviewing the constitutionality of 

section 2-9-104, MCA, with the question of whether the 

limitation on economic damages of $300,000 for each claimant 

and $1,000,000 for each occurrence is constitutional. If we 

were to leave intact that portion of section 2-9-104, MCA, 

which limits economic damages to the sum of $300,000 for 

each clailnant and one million dollars for each occurrence, 

we would then be left with a situation where recovery for 

pain and suffering was unlimited and recovery for economic 

damages was limited as prescribed by the statute. New discrimination 

problems would then exist; those whose primary loss was 

intangible could recover without limit but those who suffer 

tangible losses would 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 EXEMPLARY AND PUNITIVE DAMAGES 

FOUND IN SECTION 2-9-105, MCA, VIOLATE EQUAL PROTECTION? 

The punitive damage question is different from the 

issue of limiting compensatory damages. Plaintiff has a 

constitutional right to redress for all of her injuries but 

she does not have a constitutional right to recover punitive 

damages. In reviewing the constitutionality of a statute 

immunizing the State from punitive damage assessments, we 

apply the "rational basis" test rather than the "strict 

scrutiny" test. 

There exists a rational basis for distinguishing 
governmental entities from others in the application of 

punitive or exemplary damage law. The primary purpose of 

assessing punitives is to punish the wrongdoer and through 

that punishment, deter future unlawful conduct of the tortfeasor and others who might be inclined to engage in like 

conduct. The problem with assessing punitive damages against 

the government is that the deterrent effect is extremely 

remote and innocent taxpayers are, in fact, the ones punished. 

Those taxpayers have little or no control over the actions 

of the guilty tort-feasor. 

This problem was addressed by the United States Supreme 

Court in City of Newport v. Fact Concerts, Inc. (1981), 453 

U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616, wherein the Court 

stated: 

"Punitive damages by definition are not intended 

to compensate the injured party, but rather to 

punish the tortfeasor whose wrongful action was 

intentional or malicious, and to deter him and 

others from similar extreme conduct. See Restatement (Second) of Torts, S908 (1979); W. Prosser, 

Handbook of the Law of Torts 9-10 (4th ed. 1971). 

Regarding retribution, it remains true that an 

award of punitive damages against a municipality 

'punishes' only the taxpayers, who took no part in 

the commission of the tort. These damages are 

assessed over and above the amount necessary to 

compensate the injured party. Thus, there is no 

question here of equitably distributing the losses 

resulting from official misconduct. Cf. Owen v. 

City of Independence, 445 U.S., at 657, 100 S.Ct., 

at 1418. Indeed, punitive damages imposed on a 

municipality are in effect a windfall to a fully 

compensated plaintiff, 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 should be visited upon the shoulders 

of blameless or unknowing taxpayers." 453 U.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 limitations were not voted upon by the people 
but 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 

District Court 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: 

Justices 
Mr. Justice L. C. Gulbrandson concurring in part and 

dissenting in part: 

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, filed February 25, 1982, stated : "Plaintiffs damages are, 

for all intents and purposes, noneconomic." S e c t i o n 

2-9-104(1)(b), setting a limit on the recovery for economic damages at $300,000 for each claimant and $1 million for each 

occurrence , was not, theref ore, 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 $1 million and in devising the post-judgment procedures (2-9-104(2) ) , apparently was 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 legislature Is function to evaluate 

the risk, the extent of exposure to liablity, 

the need to compensate citizens for injury, 

the availability of and cost of insurance, and 

the financial condition of the governmental 

units. It is the legislature's function to 

structure the statutory provisions, which will 

protect the public interest in reimbursing the 

victim and in maintaining government services 

and which will be fair and reasonable to the 

victim and at the same time will be 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 sys tems 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 ex is tence , which 

now should be rewritten to provide coverage for the unlimited 

liability facing governmental entities . In my view, this Court could, and should, find that the 

$300,000 and $1 million limits apply to economic and noneconomic 

losses, and that the post-judgment procedures for excess 

judgments should be retained, because those procedures include 

entities other than the legislature. 

fPL * 

Just ice 
Mr. 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 the majority 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, along with 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 shall be administered without sale, denial, 

6r delay. " 

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 administration of 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 provision with regard to courts of justice and 

speedy remedy. 
Initially the decisions of this Court were 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 

for personal 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 the present 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 

contention of 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 the place or places 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 recognizes or 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) . . . [Alt this late day it cannot be 

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. 

(emphasis added) 

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 architects and 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 

legislature did not interfere with 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. (emphasis added) 

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 remedy 
recognized 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. 

Smith (1981), Mont . , 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 

access to - the courts - is - not - an independent 

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 in which 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, access may 

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. 

(emphasis added) 

Up to 1981, the holdings of this Court were consistent 

in the interpretation of the 1889 constitutional Article 111, 

Section 6 and 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 (4th ed. 19731, p. 37: 

"Judicial interpretation of statutes is conditioned 

by various additional presumptions which the courts 

indulge on the basis of a belief in their essential 

reasonableness. Thus, legislative language will 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." (emphasis added) 

This rule of statutory construction is applicable to the 

interpretation of the constitutional provisions of Montana. 

See State v. 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 the majority. 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 statute provides 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 form of redress for wrongful 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 

unconstitutional by the majority 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 amendment was proposed by Senate 

Joint Resolution No. 64, laws of 1974, which was adopted by 
the people at the general election of November 5, 1974. The 

amendment added 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 the will of the majority 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. Constitutional Law S23. Unless Section 

2-9-104, MCA violates federal constitutional provisions, I do 

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 given was recently enunciated in Matter of Estate of 

Merkel (1980) Mont . , 618 P.2d 872, 874, 37 St.Rep. 

"The legislature is empowered to classify persons 

for purposes of legislation, State v. 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 a 
fair and substantial relation to the object of the 

legislation, so that all persons similarly 

circumstanced shall be treated alike. . .I 

State v. Craig, supra, 169 Mont. at 156, 545 P.2d 

at 653. 

"The appellant has the burden of proving that the 

classification is arbitrary, State v. Jack, supra, 

167 Mont. at 461, 539 P.2d at 729, a burden which 

appellant has not sustained here." 

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 that burden. 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) 97 Wis.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 Johnson v. 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-economic 
I.'. 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 discrimination between those who 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. Assln v. 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 accordance with the apparent 
legislative 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 

claimant and $1 million for each occurrence. 

(2) The legislature or the governing body of a 

county, municipality, taxing district, or other 

political subdivision of the state may, 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-eg this section, e~ 

bethi upon petition of plaintiff following a 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 exclude non-economic damages. Certainly such 

an interpretation recognizes legislative intent as contrasted 

to a declaration of unconstitutionality for the entire 

section. In addition such an interpretation recognizes the 
right 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