No. 85-07 INTHE SUPREMECOURTOF THE STATEOFMONTANA 1985

RICHARD B. PFOST, Plaintiffand Respondent,

THE STATE OF MONTANA,MISSOULA COUNTY, andMINERAL COUNTY,political subdivisions of the State of Montana, DefendantsandAppellants.

APPEAL FROM: DistrictCourt of the FourthJudicial District Inand for the County of Missoula, TheHonorableJamesB. Wheelis,Judgepresiding.

COUNSELOF RECORD: ForAppellant: J. Michael Young argued,Dept. of Administration, Helena,Montana ClaytonHerron,Dept. of Administration, Helena Boone,Karlberg & Haddon;Randy J. Coxargued for MissoulaCounty,Missoula, Montana M. ShaunDonovan,Mineral CountyAttorney, Superior, Montana ForRespondent: Green,MacDonald & Kirscher;JoanB. Nehman argued for Pfost, Missoula,Montana ForAmicus Curiae: Hon. Mike Greely,Attorney General, Helena,Montana Goetz,Madden & Dunn; JamesGoetz argued forLeslie Erickson, Bozeman,Montana MichaelW. Flanigan,for Erickson, Anchorage, Alaska CrohleyLan Firm;Randall Bishop for OscarL. Heinrich,Jr., Billings, Montana

Filed: Submitted: August 29,1985 Decided: December 31, 1985

ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

We hold in this case that 2-9-107, MCA, is unconstitutional, insofar as it limits the liability of the State or any political subdivision in tort actions for damages suffered from an act or omission of an officer, agent, or employee of the entity to amounts not in excess of $300,000 for each claimant and $1,000,000 for each

occurrence. Richard B. Pfost filed his complaint in the District Court, Fourth Judicial District, Missoula County, for personal injuries that he allegedwere due to the negligence of the State of Montana, Department of Highways, Montana Highway Patrol, and Missoula and Mineral Counties. Mineral Countywas subsequently dismissed from the suit. Pfost alleged that on April 6, 1981.,he was driving a 1977 Peterbilt tractor on Interstate 90 about 23 miles west of Missoula when he encountered a bridge on Nine Mile Hill. Thebridgewas extremely icy,dangerousand hazardousand had been left in such a condition for severalhours. He alleged

no precautions were taken by defendants despite the fact that three separate wrecks had occurred prior to Pfost's arrival. Pfost lost controlof his rig,crashed through the guardrail, and plummeted over thewestbank of thebridge. He sustained

a broken neck and is now a quadriplegic. He seeks compensatory damages of $6 million. On the same day as his complaint forpersonal injuries, Pfost filed an action for declaratory judgment in the same District Court alleging that 5 2-9-107, MCA, is unconstitutional. The District Court,afterholding ahearing and accepting briefs on the question of declaratory relief, granted Pfost's motion for summary judgment and declared 2-9-107, MCA, unconstitutional. The State and Missoula County appealed that ruling to this Court.

A review of the history inMontana of state governmental immunity in tort actions is helpful for perspective in this

case.There was no provision in the 1889 Montana Constitution directly bearing on governmental immunity. InArt. VII,5 20 of that Constitution, it was provided that

# ".

. .no claim against the state, except for salaries and compensation of officers fixed by law, [should] be passed upon by the legislativeassemblywithout firsthaving been considered and acted uponby [theBoard of Examiners]," which then consisted of the Governor, the Secretary of State, and the Attorney General. 1889 Mont. Const., Art. VII, S 20. It was held that Art. VII, 20 of the 1889 Constitution applied to unliquidated claims. State ex rel. Schneider v. Cunningham

(1909),39 Mont. 165, 172, 101 P. 962, 963. In 1907, the legislature provided a method for presenting unsettled claims against the state. Any person having a claim, the settlement of which wa.s not otherwise provided forby law, was required to present the same to the Board of Examiners, at least two months before the legislative assembly, accompanied by a verified statement showing the facts constituting the claim. The Board of Examinerswas to examine such claims and make a report to the legislature as to the facts found and its recommendations. It was then up to the legislature,if it accepted a claim, to make an appropriation for its payment. Once the claim wa.srejected either by the Board orby the legislature,a demand could not be made against the State again. There was, however, an appeal from an adverse decision of the Board to the legislative assembly itself. See sections 242 to 248 inclusive,R.C.M. 1935. The view of this Court respecting state immunity was expressed in Mills v. Stewart (19261,76 Mont. 429, 436, 247 P. 332, 333. That case involved the tort claim of George Rietz, a studentat the StateUniversity at Missoula,who had stepped through a door leading to an elevator shaft instead of to a bathroom as he surmised. He received injuries which were the basis of his claim against the State. ThisCourt sa.id: "If the contention advanced by Rietz is well founded in fact, his injuries resulted proximately from the negligence of the person responsible for the care and management of the dormitory building, and against such person he has a valid, legal claim which he might enforce in an appropriate action at law. Thedormitory building is theproperty of the state,and the state is chargedwith its management and control, and,while itdoes not have anymoral right to commit a tortious act, it has the same capacity to do so as any other corporation.

(Citingauthority.) Themaxim of the English law, 'theKing can do no wrong,' does not find.a place in the jurisprudence in this country. (Citing authority.) The state,likeany other corporation, can act only through its agents, and if the state of Montana were a private corporation, itwould be responsible to Rietz in an action at law for the damages resulting proximately from the negligence of its agent in charge of the dormitory building. Eut the state is a public corporation, and out of considerations of public policy the doctrine of respondeat superior-does not apply to it unless assumed voluntarily. In otherwords, the state is not liable for the negligent acts of its agents unless through the legislative department of government it assumes such liability." 76Mont. at 435-36, 247 P. at 333. In Mills, this Court held that the appropriation of money to pay the Rietz's claim was an appropriation for apublic and not a private purpose and therefore met the requirementsof the 1889Montana Constitution. Under this system of acting on tort claims against the State submitted by the Board of Examiners, the legislature found itself in the unpalatable position of acting as judge, jury, and responsibleparty in determiningand settling such tort claims. See for example, claim of Chamberlain, House Bill no. 55, at 1110, Laws of Montana (1959); claim of Jenkins,House Bill no. 458,at 901,Laws ofMontana (1965)

# . The sovereign immunity of the State was construed by thisCourt to prevent suitsagainst officers or agentsof the State individually when acting in their official capacity. In a claim and delivery action against the Fish and Game commissioners, a game warden and a deputy game warden, in their official capacities, to recover a confiscated shotgun, the suitwas an ex delicto action against the Stateand could 

### - not be maintained where the State had not consented to be sued. Heiserv. Severy (1945), 117Mont. 105, 158 P.2d 501. Theblanket immunity that was extended to the State, its officers, agents and employees by court decisions was not complete for counties, cities, or other entities which had authority less extensive than the State. For school districts and counties, it made a difference whether the activity of the district or county which gave rise to the tort action was considered governmental or proprietary. Cities did not enjoy immunity from suits, even if the tort arose fromwhat would be considered governmentaloperations. Thus, a city could be sued for injuries resulting from its failure to exercise an active vigilance to keep all of its streets in a safe condition suitable forpublic use, and to avoid the accumulation of snowand ice. O'Donnellv. City ofButte (1922), 65 Mont. 463, 211 P. 190. A city's liability for keeping the streets reasonably safe could not be delegated to the abutting landowner. Headley v. Hammon Building, Inc., et al. (1934), 97 Mont. 243, 33 P.2d 574. This Court explained the historical reasons for extending immunity to counties from tort actions but not to cities in Johnsonv. City of Billings. et al. (1936),101Mont. 462,54 P.2d 579. Nonetheless, while the city acted in its proprietary capacity in maintaining a fire department, when fireman were actually engaged in the performance of their duties as such, they were acting in a governmental capacity and in such cases the city was not liable for their torts. State ex rel. Kern v. Arnold (1935), 100 Mont. 346, 49 P.2d 976. The county was held liable to suit for tort on the ground thatmaintaining a ferry across theMissouri River was

a proprietary function. Jacoby v. Chouteau County (1941), 112 Elont. 70, 112 P.2d 1068. Likewise a county, working iointlywith a city in the construction of a drainditch,was acting in aproprietary function,and liable in a tort action although the action arose from the repair of a road which might ordinarily be considered a governmental function. Johnsonv. City of Billings, supra. In Longpre v. School District No. 2 (1968), 151 Mont. 345, 443 P.2d 1,itwas held that governmental immunity of a school district to tort actionwas waived by the legislature when it required school districts to purchase bodily injury and liability insurance in the operation of school buses to transport school children. In 1963,the legislatureadopted section 40-4402,R.C.M. 1947, which provided that when an insurer insured anypolitical subdivision of the state, municipality, or any public body for casua.ltyor liability insurance, neither the insured nor insurer could raise the defense of immunity from suit in a damage action brought against the insured or insurer. This statute provided that if the defendant could have successfully raised the defense of immunity, and the verdict exceeded the limits of applicable insurance, the court had the power to reduce the amount of judgment against the defendant to a sum equal to the limits stated in the policy. In Boettger v. Employers Liability Assurance Corp.

(1971), 158 Mont. 258, 490 P.2d 717, this Court stated.that if the amount of liability after jud-gmentexceeded the amount of insurance, the policy should be deliveredby the claimant to the District Court to apply the limitation required by § 40-4402. In Cassady v. City of Billings (1959)

### , 135 Mont. 390, 340 P.2d 509, it was conceded that the operation of an ice skating rink by a city was a proprietary function, but this Courtheld against the plaintiff on other grounds. Such was the state of the law when the framers met in 1972 to consider a new Montana Constitution. The state and its agents enjoyed.total immunity from suit for tort action unless a policy of liability insurance existed which covered the activity giving rise to the tort. In that event the insured could not raise the defense of immunity, and the District Court after judgment could reduce the iudgment to the amountof available insurance. Counties enjoyed complete immunity for governmental functions but not forproprietary functions. Cities did not enjoy immunity. Any governmental agency whose authority was less extensive than the state could protect itself byobtaining liability insurance,and if the entitywas entitl-ed to immunity in the particular field,again the District Court could reduce any judgment to a figure within the limits of the insurance coverage. In 1972, the constitutional framers swept aside all notions of governmental immunity, and provided in the original version of Art. 11, § 18, 1972Montana Constitution the following: "Section 18. State Subject 

### -- to Suit. The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property. This provision shall apply only to causes of action arising after July 1, 1973." If there was any doubt as to the intentions of the framers with respect to the language of Art. 11, § 18, that doubt was removed by this Court in No11 and Keneady v. Bozeman (1975), 166 Mont. 504, 534 P.2d 880. There this Court said: "Areadingof the record of the 1972Constitutional Convention clearly indicates the framers intended toprovide redress for all persons, whether victims of governmental or private torts. In referring to the concept of sovereign immunity the Bill of Rights Committee reported to the Convention:

'The committee finds this reasoning repugnant to the fundamental premise of the American justice: all parties should receive fair and just redress whether the injuring party is a private citizen or a governmentalagency.' "The chairman of that committee, speaking from the Convention floor,told thedelegates:

'Wesubmit it's an halienable right tohave remedy when someone injures you through negligence and through wrongdoing, regardless of whether he has the status of a governmental servant or not.'" 166 Mont. at 507-08, 534 P.2d at 882. On November 5, 1974,at itsgeneral election, the people of the State of Montana amended Art. 11, S 18,by adopting proposed constitutional amendmentNo. 2by 

### a vote of 108,704to 76,252. After the adoption of the Constitutional amendment, effective July 1,1975,Art. 11, § 18,of the 1972 Montana Constitutionnow readsas follows: "Section 18. State Subiect to Suit. The state, 

### -- counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of eachhouse of the legislature." In 1977, the legislature adopted § 2-9-104, MCA, which provided a limitation in government liability fordamages and tortas follows: "2-9-104. Limitation on governmental liability for damages 

### - in t~rt--~etitTon for relief 

### - in excess of limits. (1) Neither the state, a county,

. . municipality, taxing district, nor any other political subdivision of the state is liable in tortaction 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 claimantand $1 million foreach occurrence. "(2) The legislature or the governing body of a county, municipality, taxing district, or other political subdivisionof the statemay, 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 followinga final judgment

# . No insurer is liable for such noneconomic damages or excess economic damages unless specifically authorized in the contract of insurance." The validity of 

### 5 2-9-104,MCA, came before us inWhite

v. State of Montana (Mont. 1983), 661 P.2d 1272, 40 St.Rep. 507. ThisCourtheld that the limitations of state liability provided in 2-9-104 were unconstitutional. We shall discuss this case later in this opinion. Within two weeks after our opinion j.n White v. State, supra, the legislature met and passed, and the Governor signed 2-9-107, MCA, the language of which we set outhereafter. It should be mentioned that a further provision of a the new law provides that § 2-9-107 is to apply retroactively "to all claims, lawsuits and causes of action arising after July 1, 1977." (Ch. 675,S 7,Laws of Montana

(1983).) Section 2-9-107 became effective onApril 29, 1.983. 11. The words and figures of S 2-9-107,MCA, the statutewe today find invalid, follow: "2-9-107. Limitation on governmental liability 

### - for damages

### -- in tort. (1)Neither the state, a county, municipality, taxing district, nor any other ~oliticalsubdivision of the state is liable in * tort action for 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) No insurer is liable for excess damages unless such insurer specifically agrees by written endorsement to provide coverage to the governmental agency involved in amounts in excess of a limitation stated in this section, in which case the insurer may not claim the benefits of the limitation specificallywaived." On its face, the statute is discriminatory. Thatpoint should be beyond argument. It discriminates in that any person who sustains damages of less than $300,000 in value will be fully redressed if the tortfea.soris the State,but any person with catastrophic damages in excess of $300,000 will not have full redress. Of course, if the statutewere not discriminatory, there would be no need for any further inquiry into its constitutionality. There is tacit concession on all sides, however, that because the statute prevents full redress for those personswhose damages exceed $300,000 in state tort actions, an equal protection inquiry is triggered. For that reason the State and County have principally based their contentions here on whether § 2-9-107,MCA, can

### be found valid either on rationality or onboth rationality and compelling state interest considerations. Art. 11,5 4,of our State Constitution provides inpart that "[nlo person shall be denied the equalprotection of the laws." Art. 11, S 4, 1972 Mont. Const. That provision of our State Constitution, though similar inwording to the last clause of the Fourteenth Amendment of the Federal Constitution provides a separate ground on which rights of persons within this statemay be founded,and under accepted principles of constitutional law such rightsmust be at least the same as and may be greater than rights founded on the federal clause. Thus, states may interpret their own constitutions to afford greater protections than the Supreme Court of the United States has recognized in its interpretations of the federal counterparts to state constitutions. City and County of Denver v. Nielson 11977)

## , 194 Colo. 407, 572 P.2d 484. Federal rights are considered minimal and a state constitutionmay be more demanding than the equivalent federal constitutional provision. Washakie Co. Sch. Dist. No. One v. Herschler (Wyo. 1980), 606 P.2d 310, cert.den. 449 U.S. 824, 101 S.Ct. 86, 66 Ir.Ed.2d 28. This is true even though our state constitutional language is substantially similar to the language of the Federal Constitution. Deras v. Myers (1975), 272 Or. 47, 535 P.2d 541,549 n.17. This is not to say thatwe fear that a different result would be demanded in this case if we founded our constitutional interpretation of S 2-9-107, MCA, strictly upon the equal protection clause of the Fourteenth Amendment of the FederalConstitution. Whatwe advancehere is thatwe have state constitutional provisions which, properlyinterpreted, command the result thatwe reach today and that such result, founded on state constitutional interpretation, does not countervail theminimal federal rights guaranteed by the FourteenthAmendment. It is perfectly proper forus to use criteria developed in federal cases to determine whether our state statute passes equal protection muster under our State Constitution. Thus we determine first whether the challenged statute affects a fundamental interest, see for e.g. Dunn 

### v. Blumstein (1972), 405 U.S. 330, 336-42, 92 S.Ct. 995, 999-1003,31 L.Ed.2d 274, 280-84; Shapirov. Thompson (1969), 394U.S. 618, 629-31,89 S.Ct. 1322, 1328-30, 22 L.Ed.2d 600, 612-13; or contains a classification based upon a suspect criterion, see, e.g., Graham v. Richardson (1971)

## , 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534; McLaughlin v. ~lorida (1964), 379 U.S. 184, 191-92, 85 S.Ct. 283, 288-89, 13 L.Ed.2d 222, 228-29. If so,the state must showa compelling state interest to sustain such a statute. If instead the statute involves only a regulation of economic or commercial matters, e.g. Western and SouthernLife Insurance Company v. State Board of Equalization (1981), 451 U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514; Minnesota v. Clover Leaf Creamery Company (1981), 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659, the lenient standard of rationality is applied. Such fed-era1 criteria are routinely used to determine equal protection questions under state constitutions. For example, in Washakie Co. Sch. Dist. No. One v. Herschler, 606 ~.2d at 333, it is stated: "The reasoning which we approve of and which we have applied to the instant case involves two different tests which are designed to determine if statutory classifications meet equal protection requirements. The first test is employed where theinterest affected is an ordinary one and the second where fundamental interests are at issue. When an ordinary interest is involved, then a court merely examines to determine whether there is a rational relationship between a classification made by the statute or statutesbeing viewed, and a legitimate state objective. When a fundamental interest is affected or if a classification is inherently suspect, then the classification must be subjected to strict scrutiny to determine if it isnecessary to achieve a compelling state interest. In addition, this test requires that the state establish that there isno less onerous alternative by which its objectivemay be achieved."

Missoula County concedes in its brief that

# ".

. . it is established that, in Montana, the right to bring a civil action forpersonal injuries is a fundamentalright." White

v. state of Montana (1983), 661 P.2d 1272, 40 St-Rep-507. The State of Montana likewise concedes: 

# ".

. . that statutory denial of any right to be compensated for any component of injury, including physical pain, mental anguish,loss of enjoyment of living,would be an effect on a 'fundamentalright' whichwould be required tobe measured by a 'strict scrutiny' test in order to pass constitutional muster, and that the Karla White case soheld. It may also be conceded here that in such a case, in order for the strict scrutiny test to result in a conclusion of constitutionality, there must be a demonstration that the law is necessary to promote a compelling governmental interest, and the Karla White caseruled thatalso." In White we had before us the constitutionality of § 2-9-104, MCA. That statute provided that neither the state

nor any political subdivision of the statewas liable in tort action for noneconomic damages, nor for economic damages in

excess of $300,000 for each claimant and $1 million for each

occurrence. This Court struck down 2-9-104, MCA, as unconstitutional, holding that the right to bring an action for personal injuries was a fundamental right and that any statutory abridgment of that fundamental rightmust pass the test of strict scrutiny. We relied on Art. 11, 5 16 of the1972 Montana Constitution, and upon our decision in Corrigan

v. Janney (Mont. 1981), 626 P.2d 838, 38 St.Rep. 545,tohold that the right to sue for persona.1 injuries embraced "all recognized compensable components of injury, including the right to be compensated forphysical pain and mental anguish and the loss of enjoyment of living." White v. State, 661 P.2d at 1275, 40 St.Rep. at 510. We further found that the interest of the state 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 citizensand which their citizens demand"was a "bare assertion" which failed to justify a d-iscrimination which infringed.upon fundamentalrights. 

### - Id. The pricking point upon which the State and County seek to distinguish White from the case at bar is that while the right to sue for personal injuries is a fundamental right, the right to recover damages is not; or as encapsulated by the State, the "lower court sustains the proposition that a monetary limitation as to amount of damage recovery is the denial of some fundamental right. This is, precisely, the point atwhich error is brought intobeing." The State contends that there is no fundamental constitutional right to recover all amounts of damages and that we cannot create substantive constitutional rights in the name of guaranteeing equal protection of the laws. It relies for authority on the case of San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. What the State failed to note,however, the San Antonio School District case was one in which the United States Supreme Court examined the Federal Constitution in the light 

### of the Fourteenth Amendment. In San AntonioSchool District, the United States Supreme Court held that the right to education was not explicitly guaranteed by the Constitution of the United States. In a later California case, Serrano

### v. Priest (1976), 18 Cal.3d 728, 135 ~al.~ptr. 345, 557 P.2d 929, (rehearing denied as modified 1977), cert.den. 432 U.S. 907, 97 S.Ct. 2951, 53 L.Ed.2d 1079, the California Court abandoned Fourteenth Amendment and other federal concepts because of the decision in San Antonio School District, and found that under the California Constitution therewas a fundamental right to educationwhich could not be discriminatorily affected on the basis of availablewealth in taxing districts. Pertinent to this case are state constitutional provisions in addition to the equal protection clause found in Art. 11, 4. The legislature, in enacting S 2-9-107, MCA,purported to actunderArt. 11, § 18which states: "The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for an injury to a person or property, except as may be specifically provided by a 2/3 vote of eachhouse of the legislature." However,Art. 11, § 16 of the State Constitution gives a constitutional right of full legal redress for injury. That section of the state constitutionprovides: "Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shallbe deprived of 

### -- this full legal redress for injury incurred in employment for which anotherpersonmay be liable except as to fellow employees and his immediate employer who hired. him if such an immediate employer provides coverage under Workman's Compensation Laws of this state. 

# .."

The use of the clause "this full legal redress" has major significance. Itobviously and grammatically refers to the "speedy remedy afforded for every injury of person, property, or character. " The adjective "this" means theperson, thing,or idea that ispresent or near inplace, time

or thought or that has just been mentioned. WebsterrsNew Collegiate Dictionary (1981)

# . The constitutional framers thus construed a "speedyremedy"as comprehending "full legal redress." A state constitutional right to full legalredress

was thereby created. Any state statute that restricts, limits, ormodifies full legal redress for injury to person, property or character therefore affects a fundamental right and the state must show a compelling state interest if it is to sustainthe constitutionalvalidity of the statute. In enacting 5 2-9-107 the legislature made findings which the state contends establish a compelling state interest. It contends that constitutionality must be presumed, that all facts necessary to susta.inthe statute must be taken as conclusively foundby the legislature,that the correctnessof the findings is conclusiveunless an abuse of discretion can be shown and that courts do not have jurisdictionorpower to reopen,correctormake new findings of fact. Wehave shown above that the state constitution provides

a speedy judicial remedy for every injury ofperson,property

or character, and that such speedy remedy includes a full legal redressas a fundamental interest. Sincea fundamental interest is involved, 

### 5 2-9-107, MCA, must be subjected to strict judicial scrutiny in determining whether it complies with our state equal protection provisions and other provisions of our State Constitution. Under this standard the presumption of constitutionality normally attaching to the state legislative classifications falls away and the State must shoulder the burden of establishing that the classification in question is necessary to achieve acompelling state interest. Serrano, supra, 557 P.2d at 952; Washakie Co. Sch. Dist.No. Onev. Herschler, supra. We set out here in full the legislative findings codified in 5 2-9-106, MCA. On these the State relies to sustainthe validity of § 2-9-107: "2-9-106. Legislative findings. (1) The legislature recognizes and reaffirms the report of the subcommittee on judiciary, contained in the interim study on limitations on the waiver of sovereign immunity (December 1976)

## , that unlimited. liability of the state and local governments for civil damages makes it increasingly difficult if not impossible forgovernmentstopurchase adequate insurance coverageat reasonablecosts. "(2) The legislature finds that the obligations imposed upon governmental entities must be performed, even though the risks inherent in performing absolute obligations are great. The responsibility for confining, 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 ofmiles 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. "(3) The legislature finds that there are many functions and services both governmental and proprietary in nature traditionally offered by the state and other governmental entities which, because of the size of government operations and the inherent nature of certain functions and services, entail a potential for civil liability for tortious conduct far beyond the potential for Liability of corporations and other persons in the private sector. Despite this potential for liability unparalleled in the private sector, the legislature finds that these functions of government are necessary components of modern life and that,despite limited resourcesand competition for those resourcesbetween necessary programs and entities, all functions and services both governmental and proprietary in nature are deserving of conscious and deliberate continuation or retirement by the people through their elected representatives. The legislature further finds that liability for damages resulting from tortious conduct by a government or its employees is more than a cost of doing business and has an effect upon government far beyond a simple reduction ingovernmental revenues. Unlimited liabilitywould, because of the requirement for a balanced state budget contained inArticleVIII, section 9,of the Montana constitution and because bankruptcy is a remedy unavailable to the state and most other governmental entities, result initially in increased taxes to pay judgments for damages and would eventually have the effect of reallocating state resources to a degree that would result in involuntary choices between critical state and local programs. The legislature finds these potential results of unlimited liability for tort damages to be unacceptable and further finds that, given the realities of modern government and the litigiousness of our society,there is nopractical way of completely preventing tortious injuryby and tort damages against the state and other governmental entities. The legislature therefore expressly finds that forced reduction in critical governmental services that could result from unlimited liability of the state and other governmental entities for damages resulting from tortious conduct of those governments and their employees constitutes a compelling state interest requiring the application of the limitations on liabilityand damagesprovided inparts 1 through 3 of this chapter." Bearing inmind that inWhite v. State,supra,we upheld the provisions of § 2-9-105, MCA, to the effect that state and political entities are immune from awards of punitive damages, we find. little more in the quoted legislative findings supporting § 2-9-107 than a legislativeplea not to require the legislature and other political entities to provide the funds necessary to pay the just obligations of those entities. InWhite,we also stated that thepayment of tort judgments by political entities was simply a cost of doing business. 661 P.2d at 1275, 40 St.Rep. 510. The legislature in its findings contends that paying a judgment is more than the cost of doing business, and would, because of the constitutional requirements of abalanced state budget "result initially in increased taxes to pay judgments for damages and would eventually have the effect of reallocating state resources to a degree that would result in involuntary choices between critical state and local programs." Section2-9-106, MCA. That statement is so wild in speculationas to be on its faceunacceptable. Having to provide funds to pay judgments is not a sufficient excuse logically or legally. The legislature would place the burden of catastrophic damages not on the Statewhose agent caused them,but on the unfortunate person who received them. If the state constitutional framers in 1972 were concerned with any particular subject, they were certainly concerned with the importance of the individual. They detailed important individual rights in 35 sections of Art. I1 of the State Constitution, being careful to provide in S 34 that the specific enumeration of rights did not "deny, impair, or disparage other rights retainedby thepeople." The findings of the legislature denigrate the right of the individual to full legal redress in favor of not raising taxes. Such a concept does not constitute either an acceptable or a compelling state interest. As we analyze S 2-9-107,MCA,we find little difference between it and the statute we found invalid in White, that prohibited recovery against governmental entities for noneconomic damages. Section 2-9-107, permits some recovery from noneconomic damages, but limits the amount that can be recovered. In legal effect, S 2-9-107, is but S 2-9-104 in another guise. In each case the injured party suffers a restriction of his right to full legalredress. Our decision in White therefore controls the outcome of this case--the legislature has invaded a fundamental right granted to individuals,and ithas not shown a compelling state interest for doing so. In addition to the necessity that the State show a compelling state interest for an invasion of a fundamentalright, the state, to sustain the validity of such invasion, must also show that the choice of legislative action is the least onerous path that can be taken to achieve the state objective. Washakie County, supra. Here the state has not attempted to make any such showing. We seeno substance in the State's contention,echoed in the legislative findings, that limitations on damages against governmental entities arenecessary because the functions and services of such entities "entail a potential for civil liability for tortious conduct far beyond the potential for liability of corporations and other persons in the private sector." Section 2-9-106, MCA. There is no foundation in fact for sucha statement. The federal government carrieson governmental functions and services immensely greater in complexity and more far flung, yet it provides redress for victims of federal government torts under the Federal Tort Claims Act. See 28 U.S.C. 2674. Several large corporations in this state carry on their business functions a.nd activities, and respond in full in damages, both compensatoryand punitive,aspart of their costof business. It is anovel argument indeed for aparty to complain that it is too big and complex, or its employees too poorly trained and unchecked, for theparty tobe able to respond indamages for its tortious acts. Both the State and the County in this case centered their arguments on the proposition that there was no fundamental interest involved in this case and therefore the Sta.tehad only to meet the test of a rational nexus between the legislation and the state objective in enacting the legislation. Under the record in this case,we doubt that the legislation could pass even the lenient rational basistest but we do not reach that argument here. Since a fundamental interest is involved,we have examined the case from the viewpoint that the legislation requires strict judicial scrutiny to be sustained under our State Constitution. Further argument advanced by both the State and the county is that since the amendment to the immunity cl-ausein the State Constitution, adopted.by a referendum vote of the people, empowers the legislature to fix immunity limitsby a two thirds vote of each house of the legislature, thatpower is in effectpart of the constitution itself and not subject to challenge. We reject out of hand that the legislature has the power, under Art. 11, § 18, as amended, to act under that amended clause without regard to other provisions of the State Constitution. We agree with the rationale of the California Supreme Court in Serrano, supra, where it said: "It seems to be argued, however, that because article XXIII, section 21 authorizes the financing of schools by a county levy of school district taxes, the Legislature is free to structure a systembased upon thismechanism in any way that it chooses. Such a notion,we hasten to point out is manifestly absurd. A constitutional provision creating the duty and power to legislate in a particular area al-waysremains subject to general constitutional requirements governing all legislation unless the intent of the Constitution to exempt it from such requirements plainly appears." 557P.2d at 956.We do not reach, because it is not necessary here, whether the grant to the legislature under the amended version of Art. 11, S 18, is an impermissible grant to the legislaturetoamend the constitution. The grounds upon which we hold today that S 2-9-107 is unconstitutional are somewhat different from those grounds utilized by the District Court in this case. The result, however, must be the same under our examination of the statute. We therefore hold that S 2-9-107, MCA, is an unconstitutionalinvasionby the legislatureon a fundamental right granted under the State Constitution to sue governmental entities for full legalredress. Inview of our decision, it is not necessary to discuss other issues raised by the parties. The judgment of the

We Concur:

ChiefJusticeMr. Justice Frank R. Morrison, Jr., specially concurs as follows:

I unequivocally concur in the constitutional analysis engaged by my learned brother, Justice John C. Sheehy, speaking for themajority. This specially concurring opinion is written for the purpose of addressing the dissents ofMr. Chief Justice J. A. Turnage and Mr. Justice Fred J. Weber. The Chief Justice has filed a dissent in which he states: The majority opinion centers upon Article 11, Section 16, of the Montana of the 1972 Montana Constitution

# . . . The Chief Justice's dissent fails to grasp the constitutions.,- issue in this case and thereforeproceeds upon

a faulty premise. The issue is whether the statute in question offends Art. 11, Sec. 4, of our State Constitution which provides in part that "no person shall be denied the equal protection of the 1-aws. 

### " Had the courthousedoorbeen completely closed to Pfost, then Art. 11, Sec. 16, which forms the core of the Chief Justice's dissent, would likely be addressed rather than equal protection. The statute here in question does not institute a State immunity but rather provides a scheme for compensating litigants where a limited recovery of $300,000 is afforded. Pfost argues that such a scheme discriminates against him a.nddenies equal protection of the law. Pfost's argument has not been addressed by the Chief Justice's dissent. The first step in properly analyzing the Pfost claim is to determine whether the legislation discriminates. Pfost argues that people with claims worth less than $300,000 arefully compensated but under the statutory limitation he receives practically nothing. Pfost is a quadriplegic. The $300,000limitationwill notpay the medical expenses forhis lifetime. The result of the limitation is that Pfost will receive nothing for loss of income, destruction of his established course of life, or for physical pain and mental anguish. The statute is facially neutral in that every one receives the same treatment. All tort victims are limited to $300,000 in cl-aimsagainst the State of Montana. However, the statute does have a disparate impactuponpeople such as Pfost who suffered catastrophic injuries. The tort victim who fracturesa leg receives fullcompensation. On the other hand a quadriplegic, under the limitation imposed, would not recoup medical expenses and would be denied any compensation for the other aspectsof injury. In view of the disparate impact suffered by catastrophically injured tort victims, it seems clear that Pfost, and those similarly situated, suffer discrimination under the State limitation. However, discrimination in this

case is notper se unconstitutional. The next step in equal protection analysis is to determine whether the discriminatory legislation canhe sanctioned without denying equal protection of the law as it is guaranteed under our state constitution. In making that determination, we must decide what level of scrutiny attaches. Equal protection analysis is usually accomplished by appellate courts through judging the legislative classifications using "rationalebasis" or "strictscrutiny." Some courts have engaged a middle tier analysis. In this

case e have adopted the "strict scrutiny" test for thereason that a fundamental right is implicated in imposing a $300,000 limitation. There is no claim in this case that the $300,000 limitation imposed by the legislature violates Art. 11, Sec. 16, of the State Constitution. For that reason the dissent filedby the Chief Justice justmisses themark. The only relevance of Art. 11, Sec. 16, is in determining what ].eve1 of scrutiny to attach in making an equal protection analysis. We must determine whether the $300,000 limitation infringes upon rights addressed in Art. 11, Sec. 16. If so, then in making an equal protection analysis, strict scrutiny attaches and the State must show a compelling State interest in justification of the limitation. In White v. State of Montana (Mont. 1983), 661 P.2d 1272, 40 St.Rep. 507, this Court held that Art. 11, Sec. 16, afforded redress for all aspectsof injury includingpain and suffering and that the State Tort Claims Law, which denied compensation for pain and suffering,would be subjected to a strict scrutiny analysis. Art. 11, Sec. 16,provides in relevantpart as follows: Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property,or character. No person shall be deprived of this full legal redress

# . . . In White we determined that the language "every injury" included pain and suffering and that by denying any compensation for pain and suffering the State would be required to show there was a compelling State interest to justify the denial. In this case, at 1-eastarguably, there is some compensation for every injury. On the face of the statute one can recover for all legally cognizable elements of damage but there is a $300,000 cap. The majority hasattempted to determine whether such a limitation affords a speedy remedy for every injury as that languagewas intended in Art. 11, Sec. 16. We looked to the next sentence in the section which commences "noperson shallbe deprived of this full legal redress

# . .." The word "this" clearly refers to

an antecedent. When the language of the section is construed harmoniously, it appears clear that the constitutional delegates intended that "remedy afforded for every injury" provides for full legal redress. That intent is made abundantly clearby the language

### of delegateDaHood quoted in the Chief Justice's dissent. DaHood said: We say, in the first sentence, that every citizen shallhave the right to full legalredress. Montana Constitutional ConventionTranscript,Vol. V at 1757. The first sentence of Section 16 does not specifically state that full legal redress is afforded,but the language found in the next sentence, shows the full breath of the first sentence'scommand. Once we have determined that the $300,000 limi-tation discriminates against a class including the claimant Pfost and that such discrimination implicates a fundamental right found in Art. 11, Sec. 16, we then require the State to justify the limitation by showing a compelling State interest. In White v. State, supra,we clearly stated that saving money did not constitute a compelling State interest. As in White, no compelling State interest has here been shown. Therefore, the statute in question fails to pass constitutional muster and must be stricken. The Chief Justice, innotaddressing the equal protection issue, leaves

us in the dark about whether he would apply a rational basistest or a middle tier analysis. He does not say if the present statute would pass either test,and if so,why. Justice Weber argues that Art. TI, Sec. 18, has application in this case. That section states: State subject 

### -- to suit. The State, counties, cities, towns, and all other local go~rernmental entities shall have no immunity from suit for injury to a person or property, except as may be specially provided by law by a two thirds vote of each house of the legislature. Under this provision of the Constitution, the legislature is authorized to enact State immunity by a two thirds vote. Of course, the legislature could do that anyway. The legislature could.immunize any person or group ofpeople from tort liability. The only significanceof this constitutional provision is that it requires a two thirds vote instead of a majority vote in order to immunize the StateofMontana from liability. Where JusticeWeber's dissent goes astray is in failing to consider that any legislation passed by the legislature must be subjected to the other provisions of the Constitution. Certainly the legislation itself does not become a part of the Constitution and therefore cannot be balanced against other constitutiona.1provisions. If the legislation passed by the legislature violates the equal protection clause of the Constitution, it still must be stricken. I believe the majority opinion is scholarly and constitutionally sound. However, that opinior,was drafted prior to the drafting of the dissents. The purpose of this concurring opinion is to show the weaknesses in the dissents and reinforce the lucid analysis found in the majority opinion.Mr. Chief JusticeJ. A. Turnagedissenting: I dissent to the majority opinion. I would hold that S 2-9-107, MCA, is constitutional and reverse the District Court.The majority opinion centers upon Article 11, Section 16, of the 1972 Montana Constitution and its application as articulated in White v. State of Montana (~ont. 1983), 661

This Court should reexamine its interpretation of Article 11,Section 16. Montana's 1889 Constitution, Article 111, Section 6, provided: 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 sa.le, denial,orde1a.y. Montana's 1.972 Constitution, Article 11, section 16, provides: Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall he deprived of this full legal reeress for injury incurred in employment for which another person may be liable exceptas to fell-ow employeesand his immediate employerwho hired him if such immediate employer provides coverage under the Workmen's Compensation Laws of this state. Right and justice shall be administered without sale, denial,ordelay. The firstand third sentence of Article 11,Section 16, with the exception of the omission of the adjective "a" in the first sentence, are identical to the 1889 Constitution, Article 111, Section 6. The drafters of the 1972 Constitution added only the second sentence of Article 11, SectionFoperson shallbe deprived.of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employerwho hired him if such immediate employer provides coverage under the Workmen's CompensationLaws of this state. A careful examination into the intent of the drafters of the 1972 Constitution is essential and critical to this Court's correct interpretation of the second sentence of Article 11, Section 16. Evidence of their intent is to be found in official proceedings of the Constitutional Convention. The second sentence of Article 11, Section 16, first appeared at the 1972 Constitutional Convention as delegate proposal 133 introduced February 3, 1972, and now appears verbatim as introduced in our Constitution. Theproceedings of the delegates to the 1972 Constitutional Convention relating to the amendment of Article 111, Section 6,of the 1889 Constitution by the addition of the second.sentence in what is now Article 11, Section 16, clearly establishes that the delegateshad a singularand solepurpose in thisregard: To

assure thatnoperson shallbe deprived of full legal redress for injury incurred in employment for which another person may be liable. Examinationof theproceedings of theMontana Constitutional Conventj-onfrom January 17, 1972, to March 24, 1.972, leaves no doubt as to the delegates' purpose and intent in Article 11, Section 16, nor does the plain language of this Article and Section. On February 22, 1.972, the Bill of Rights Committee submitted a committee report with these comments: The commj-ttee voted unanimous1.y 

### to retain this section with one addition.The provision as it stands in the present Constituti.onguarantees justice and a speedy remedy for all without sale, denial or delay. The committee felt, in light of a recent interpretation of the Workmen's Compensation Law, that thisremedy needed to be explicitly guaranteed to persons who may be employed by one covered by Workmen's Compensation to work on the facilities of another. Under Montana law, as announced in the recent decision of Ashcraftv. Montana PowerCo., the employee has no redress against third parties for injuries caused by them if his immediate employer is covered under the Workmen's Compensation Law. The committee feels that this violates the spirit of the guarantee of a speedy remedy for 

### - all injuries of person, property or character. It is this specificdenial--and this one only--that the committee intends to alter with the following additionalwording: "noperson shall be deprived of this full legal redress for injury incurred in employment for which another person may be liableexceptas to fellow employeesand his immediate employerwho hired.him ifsuch immediate employer provides coverage under the Workmen's Compensation Laws of this state." Inotherwords the committee wants to insure that the Workmen's CompensationLaws of the state will be used for their original purpose--to provide compensation to injured workmen--rather than to deprive an injured worker of redress against negligent third parties (beyond his employer and fellow employees) because his immediate employer is covered by Workmen's Compensation. The committee believes that clarifying this remedy would have a salutary effect on the conscientiousness of persons who may contract out work to be done on their premises. To permit no remedy against third parties in cases where the employer is covered by Workmen's Compensation is to encourage persons with rundown premises to contract out work without improving the quality of the premises. The committee urges that this is an abuse of theWorkmen's Compensation Law and constitutes a mis-application of that law to protect persons who are negligent. The committee commends thisprovision to the convention with the belief that 

### itisan important, i.ftechnical, aspect of the administrationof justice. Montana ConstitutionalConvention,Vol. 11,a.t 636-367. OnMarch 8, 1972,the Convention resolved itself into a Committee of the Whole and delegate Murray in recommending Section 16 ofArticle I1 stated: DELEGATE MURRAY: [After reading the entirety of the above committeereport.] Those are the remarks which are contained in the booklet. Let me amplify them by saying basically this: we feel that the right to third party action is a right whichwe shouldestablish inour Constitution. It is a right which working men and women who are unfortunate enough to be injured have had for nearly 80 years in this state. We feel that it was wrongly taken away from these people by the Supreme Court decisionwhich was mentioned. We feel that we perhaps are legislating in asking that this be written into our Constitution, but we of the committee really believe thatwe are acting in a judicial manner in asking that it be written in the Constitution for we feel that this Convention, perhaps, is the court of last resort for injured working men and women in Montana with respect to the third party lawsuit, and we recommend that the sectionbe adopted. CHAIRNANGRAYBILL: Mrs. B0wma.n. DELEGATEBOWMAN: Mr. Chairman, Iwonder ifMr. Murraywould yield to a question. CHAIRMANGRAYBILL: Mr. Murray, willyou yield? DELEGATE MURRAY: Yes, Mr. Chairman. DELEGATE BOWMAN: Mr. Murray, I don't understand what this means and I wonder if you would explain it, giving us a specific example of what happened so we'd know that you're taking about. DELEGATE MURRAY: Mrs. Bowman, in the case in question,the--oneof the important utilities in this state hired a contractor to repair some of its powerlines and. the employee of the contractor that was hired crawled up a power pole 

### and, while there working on thatpole, it broke and it fellwith himto the ground and he was injured. In the case in question, because of the decision of the Supreme Court, the injured employee was limited. to Workmen's Compensation benefits through the coverageof the contractor. Ordinarily, 

### if itwere not for this interpretation, the injured employee would be entitled to sue the important utility in this state and recover in addition to his Workmen's Compensation benefits. Those benefits or a portion of those benefits recovered under Workmen's Compensation, were the injured workman--did he--or were he to make a recovery against the important utility, would be paid back under the theory of subrogation to the Industrial Accident Fund of Montana. But does that explain basically what occurred,at least in thisone instance? Montana Constitutional Convention, Vol. V, at 1753-1754. DelegateDahood stated: DELEGATE DAHOOD: Mr. Chairman, I had intendednot to speakon this particular section simply because I was trial counsel on behalf of Charles Ashcraft, who ispermanently disabled for the rest of his life and shall never work at his trade. 5: have heard this argument in the Supreme Court, an argument that had no basis in logic. I have heard itby several defense counsel who represent the best of corporate interests, that thi.s is going to affect the individual property owner, and if he hires a contractor,he is going tobe exposed to a liability that isunprecedented and they did not experience before. This is totally untrue. This section is doing nothing more, and the wording has been very precisely selected to make sure that it does nothing more, than place the injured working man back in the status that he enjoyed prior to 1971,a verybasic constitutionalrightwhichhe enjoyed for 80 years in the State of Montana. What happened in the Ashcraft case? TheMontana Trial LawyersAssociation, 150 members strong, to a man, without a dissent, believes that this Constitutional Convention must return this right to the injured working man. The unions, without exception, believe that a very basic right has been taken away from the injuredworkingman in the State of Montana, and Iunderstand that the corporate interestthat specifically are involved in this have decided thatthey will not ask anyone to offer opposition to it on the Convention floor. Here is what happened in the Ashcraft case. Charles Ashcraft worked for an independent contractorhaving no connection with the Montana Power Company. The Montana Power Company made what we call an independent contract to have a. newphase placed upon theirpower poles. Charles Ashcraft went 35 feet into the air. He was there for 20 minutes. Without warning, without any chance to protect himself, that pole gave way below ground level and carried Charles Ashcraft 35 feet to the ground. He was 90-some days in the hospital, but he survived; but he will not work at his trade again. What were the real facts? And keep this in mind: we are only talking about a situation where someone, through negligence, througha failureto use due care, has brought about the injury. There is nothing automatic. You may still suffer injury that is not fault of anyone else--not recover. We are not talking about that. So what were the facts? Dr. Clancy Gordon,one of the environmental advocates, was retained by us. He is a professor of botany at theUniversity of Montana. He examined the pole and found several apparent things about it. One, it violated the statute of the State of Montana that's been on the statute books for more than 50 years, that power companies must construct their poles of cedar-quality or other standardized material. Thiswas a lodgepolepine; it was not as required by statute. This was a lodgepole pine that has a useful life of from 17 to 20yearsat themost. This pole had been in place for more than 23yearsandhad notbeen inspected for more than 5 years before the accident occurred. As a consequence, the rotting that took place tookplace below the ground level where the lineman, before climbing the pole, could not detect it, even though in this instance CharlesAshcraft did whathewas trained to do--took a shovel and dug around the base of thepole. And as a consequence, through the negligence of the Montana Power Company, he suffered this permanent injury. IJp until this decisionby the SupremeCourt, therewas no question that in that situation the injured citizen, the injured working man had a right forproper redress. TheWorkmen's Compensation law,which is inadequateat best, has certainpublic reasons for itsexistence. It applies only between the employer and the employee. So clever legal counsel for the Montana Power Company, and very able, decided maybe there's some way to get away from this case. So they went back to 1965,when the Legislature amended the independent contractor law to provide that you no longer could defend on the ground that someone injuredwithinyourwork premiseswas not entitled toWorkmen's Compensation fromyou because he was employed by an independent contractor unless you insisted that that independent contractor carry Workmen's Compensation. The legislators thatwerebehind thatamendment were interviewed. They said, "We had no intention whatsoever of bringing about the results that were brought about by this Supreme Court decision, and you have to strain the reading of that particular section to come up with that particular position." But nevertheless, the Supreme Court--and there's a very bitter dissent on that case--a long and. well-reasoned dissent--but in any event, in that case they fastened upon that as a justification and an excuse for denying this working man his remedy. When that happened--and this was after Judge Battin of the Federal Court in a similar case had ruled in Montana that this amendment does not do that--he then had to change his mind, because under federal law,he's bound by a Montanadecision. The legal community was shocked. None of us were able to explain the result to theunions,to the working people. This particular right was taken away from the working man after 80 years, so promptly legislators introduced in the Senate a bill to overcome that. It passed the Senate--and I don't want to make a bicameralor a unicameral argumenthere.

(Laughter) Promptly the lobby of the vested corporate interests when across the hall--and we determined this to be true--and made sure that itdid notpass in theHouse. Sowe're nowat the court of last resort. We allowed in our Bill of rights an amendment to a clean and healthy environment. By this provision and this amendment, we are going to provide for the working man a safe environment. How does the law stand at the moment? Let me tell you how it stands. And some of the big vested corporate interests are now using independent contractors because it's reduced their cost of operation. If you havesome particular tough job that youwant doneonyour premiseswhere theremay be some danger connected with it,what you do,you go out and youhire an independent contractor. Don't have your employees in that dangerous area,because if they're hurt or there's an accident, youhave topay themWorkmen's Compensation. So here's the way you do it now that we have immunity from the Supreme Court--an immunity neither intended by the people nor intended by the Legislature. What you do,youhire someoneon an independent contractor basis and their employees are in this dangerous area. You don't have to worry about safety anymore. You don't have to do anything to make your premises safe. You don't have to be concerned about a safe environment for thepeople thatare working there to benefit your interest. If they're injured,even though it's the most blatant type of negligence and carelessness, all you have to say is, "Well, we're sorry, but you have your Workmen'sCompensation." Maybe youhave a wife and seven children,but it's $65 a week for awhile and it's 60,and now, of course,the Legislaturehasraised it and you can get more money, but that's it. The Workmen's Compensation people were astounded at the decision. They sent their lawyers up to petition for rehearing. I do not think that any strong legalmind could reallyand truly justify what had happened, which has resulted in this, that in a particular area of industry nowwe need nothave a safe environment for the working man. The vested corporate interesthas imrnunity without paying anything for it. Now, how does itwork ifwe return this basic rightthat the injuredworkingman had for 80 years? Simply this. Let's assume--let's take the CharlesAshcraft situation. CharlesAshcraft is injured. He proves all these factors about the negligence of theMontana PowerCompany. He is paid his Workmen's Compensation, so he files what the lawyers call a third party lawsuit. The Montana Power Company then is compelled to acknowledge its obligation. They make payment. He then pays back to theWorkmen's Compensation carrier. We have a provision in Montana in the Workmen's Compensation Law that provides for these actions--that the working man doesn't bring it, the Industrial Accident Board does. That law has never been changed. But how about now? That law is almostuseless because of this particular interpretation. So what has happened? Regardless of all this conflict, this technicality, having to use the word "Workmen'sCompensation" in thisparticular section, which we didn't want to do,because theminutewe did itwe knew that somebodywould jumpup and say it's legislative, but if you're going to draft something with precision and you want to make sure that all that you're doing is returning the law to what it was prior to this decision 2 year ago, you are compelled, sometimes, in fashioning this precise language to use language that may be seized upon by someone else as 1egisla.tive. It isnot. Tt is givingback abasic constitutional right that the citizen of Montana had prior to that particular decision. And we submit toyou thatby this particular provision, all that we are doing is returning that rightto the working man; and how can anyone truly, justly object to doing that and only that? Now that is what happened in that particular situation. This is a constitutional provision. We say, in the first sentence,that every citizen shall have the right to full legal redress. We've taken away full legal redress in that particular area. We want to give full legal redress back in that one specific area, and that is why it is framed in that particular fashion. And we submit to you, our fellow delegates, that we arehere tomake sure that the rights of the citizen are protected, and this is nothingmore than a step forward tomake sure that they will continue to have a protection that existed for 80 years. We submit it's a constitutional matter and that the amendment i.s required to have a progressive Bill of Rights. Thankyou,Mr. Chairman. Montana Constitutional Convention, Vol. V, at 1755-1757. Delegate Johnson then inquired of Delegate Dahood: DELEGATE JOHNSOPJ: Wade, I'm a cattle rancherdown in southeasternMontana and we live way back in the hills, off the road. Wehave tomaintain our own road; in fact, it's 12miles there. We built what kind of a roadwe have, and we try to get by on it. We have some homemade bridges there, and this and that. As a point of clarification, Iwanted to ask you,wherewewould contract somebody to do some work on this road and perhapsone of themwith apiece ofheavy equipment were doing some shaling or graveling of this or that and one of these bridges would collapse and one of those men. would be hurt, then I would be responsible? DELEGATEDAHOOD: Torrey,youwould not be responsible. This amendment does nothing more than return the law towhat it was about a year ago. Please recall what I said. The only time that someone would be responsible, such as the Montana Power Company, is when they are negligent, they are guilty of some type of civil wrongdoing. And this other argument that's been used, that it's going to open you up or it's going to open the owner of a residenceup to some type of lawsuit, is simply, absolutely not true. That'swhy we fashioned this language precisely as we have. We're doing nothing more than trying to return the law to what it was prior to a year ago. Your situationwouid be nodifferent that it's been inall theyearsgone by,Torrey. Montana Constitutional Convention,Vol. V, at 1758. In the clear and bright light of this record, there should be no reason for disagreementonwhat the intentionof the Constitutional Convention delegateswas andwhat theyhad inmind when they adopted Article 11,Section 16, orwhat the citizens understood when they voted upon this provision. The majority opinion ir, its interpretation of Article 11,Section 18,of theMontana Constitutionand of § 2-9-107, MCA, raises other, and perhaps more serious, constitutional questions. What political power do the people have to amend their Constitution? What sta.ndingwith relation to other constitutional articles does a subsequent constitutional amendment have? Whatpower do the peoplehave to respond to any amendment through theirLegislature? Article 11,Section 1,provides:All pol-iticalpower is vested in and derived from thepeople. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Article 11,Section 2,provides: The people have the exclusive right of governing themselves as a free, sovereign, and independent state. They may alter or abolish the constitution and formofgovernment whenever they deem it necessary. Article 111,Section 1,provides: The power of the government of this state is divided into three distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others except as in this constitution expressly directed or permitted. The 1972Constitution,when adopted by thepeople,was an amendment to their 1889 Constitution, and there should be

no dispute that amendments to the Constitution must and do have a direct effect upon any prior existing Article of the Constitution which the amendment has an obvious and intended purpose in addressing. To hold otherwise may render any attempt by the people to amend their Constitution a nullity. Ina given factualcontext,each Article of ourConstitutionmust have equal and recognized standing. If suchwere not the case,and the document not read to harmonize each of its provisions, interpretive chaosmay well result. Amendments amend amendmentsand.thismustbe recognized by the Court. The original Article 11, Section 18, of the 1972 Constitutionprovided: The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit forinjury to a person or property. This provision shall apply only to causes of action arising after July 1, 1973. An amendment to this Section was presented to the people by legislative referendum and in 1974 the people amendedArticle 11, Section 18,which nowprovides: The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature. In 1983, the legislature in response to this Court.'s decision inWhite,adopted § 2-9-107,MCA: (1)Neither the state, a county,municipality, taxing district, nor any other political subdivision of the state is liable in tort action for damages suffered as a result of an act or omission of an officer,agent or employeeof that entity in excess of $300,000 for each claim and $1. million for each occurrence.

(2)No insurer is liable for excess damages unless such insurer specifically agreesby written endorsementtoprovide coverage to the governmental agency involved in amounts in excess of a limitation stated in this section, in which case the insurer may not claim the benefits of the limitation specifically waived. The majority of this Court now finds this statute invalid and unconstitutional in failing to meet a test of rationality or compelling State interest, and therefor discriminatory, and therefor a denial of equalprotection under Article 11,Section 4,of theMontanaConstitution. Ibelieve S 2-9-107,MCA,meets the testof rationality and compelling State interest. Themajority opinion sets forth in full the provisions of S 2-9-106, MCA, which will not he repeated here, but I commend the reader to further consider itsprovisions. Theyare not mere bare assertions or only a legislativeplea not to require government to pr0vid.efunds. They are carefully considered and a.rticulated reasons why government of the peoplemustbe protected from unlimited liability. The result of themajority opinionnotonly affects the State government, which arguably may have a deeppocket,but every County, City, School District, Irrigation District, Fire District, and.many other small governmental entities as well,which unarguably do nothave a deeppocket. It is the people of this State, not government, who bear the cost of government, which of course is extracted from them by taxes and fees. When thepeople in 1974adoptedArticle 11, Section 18, they authorized the legislature to specifically provide immunity from suit to governmental entities for injury to persons or property. This is preciselywhat the legislature has d.one in 1983 by passing 5 2-9-107, MCA. They did not provide for total immunity but specifically limited damages as to amount. Legal redress for injury to person orproperty

can only be measured in money damages. Article 11, Section 18, authorizes the legislature to provide for this limited immunity. The majority opinion.cites White and Article 11, Section 16, for the proposition that there is a fundamental right to full legal redress under the facts of this case. A grammatical reading of Articl-e11, Section 16, does not supportthis interpretation. The clear intent of the 1972delegates to the ConstitutionalConventiondoesnot support this interpretation. In adopting the second sentenceofArticle 11,Section 16, they intended and did provide full legal redress forinjury incurred in employment forwhich othersmay be liable, except as to fellow employees and the immediate employer. There is no question as to the need for this protection for the employees in this State. There further can be no question that our courts are open to every person and speedy remedy afforded for every injury of person, property or character; however, this does not mean that the people have been denied the right to act through their legislature in providing a system of law that may set forth the scope and extent of the remedies provided by law. For this Court todecide otherwise requiresa denial of the doctrine of separation of powers in Article 111, Section 1,of theMontana Constitution. This Court should reexamine its interpretation of Article 11, Section 16, articulated in White and the cases controlledby thatdecision. 

### -4 

# J[,-T--

ChiefJustice 

# -,A-Mr. JusticeFred J. Weber dissentsas follows:

I commend the majority for its historical analysis and careful presentation of the constitutional principles which apply in equal protection cases. However, I strongly disagree with the conclusion that, under the facts of this case, there is a fundamental right to full legal redress which has been offended. I concur in the dissent of Chief Justice Turnage and agree that this Court should re-examine its interpretation of Art. 11, 5 16, Mont. Const. 1972, as contained in White and themajority opinionhere.

Article 11, § 18,Mont. Const. 1972,provides: The state. counties, cities, towns, and all othe; governmental entities shall have no immunity from suit for injury to a person or property, except

# as ma be specifically provided

# a law

## 9 2?vo~ of each house of thelegislature. 

### - - [Emphasissupplied.] 

### - The underscored portion was added by a constitutional amendment and approved by referendum vote of the people in 1974. As pointed out in themajority opinion,prior to that amendment,the stateand various governmental entitieshad no immunity from suitunder the 1972 Constitution. The constitutionalreferendum added the exception. It is apparent that the people intended that the state could make specific provisions for immunity so long as those provisions were adopted by a 2/3 vote of each house. By requiring the 2/3 vote rather than the normalmajority vote, the people demonstrated their requirement for broad agreement as to any immunity adopted. Section 2-9-107, MCA, was adopted by 2/3 vote of each house of the legislatureandwas also approved by 

### the governor. The adoption of that statute appears to satisfy therequirements for immunity under Art. 11, 8,Mont. Const. 1972. However, White and Pfost hold that no such immunity exists. White held unconstitutional 

### S 2-9-107, MCA 1983,which limited recovery to economic damages and eliminated the right to recover other types of damages from the state. White thereby advised the people of Montana, the members of the legislatureand the governor, in particular, that they could not provide for immunity under section 18 by limiting recovery to certain types ofdamages or componentsof injury. The majority opinion in Pfost now tells the people, members of the legislatureand the governor that they cannot adopt a statute that in any bray limits the dollar amount of recovery from the State as legal redress for injury to person,property or character. If limited sovereign immunity is to be granted, it requires either a limitation on the type ofdamages forwhich compensation can be paid, or a dollar limitation upon the total amount of recovery. Both of these alternatives have

now been effectively eliminated by the opinions of this Court. Absolute immunity appears to be the only remaining alternative. However, whether a statute that grants total sovereign immunity would still be permissible is anunsettled question. The effect of White and Pfost appears to be an improper judicial repeal of the exception in Art. 11, 18, Mont. Const.

## , as adopted by the people of Montana in 1974. I1 Art. 111, S 6 of the 1889 Montana Constitutionprovided that courts of justice "shall be open to every person, and a speedy remedy afforded for every injury of person, property

or character.

# .." This is substantially the same provision

asArt. 11, § 16 of the 1972Montana Constitution.The majority points out that prior to adoption of the 1972 constitution, the State and its agents enjoyed total immunity from suit for tort actionunless apolicy of liability insurance existed. If the rationale of the majority in this case were applied, such total immunitywould have been constitutionallyimproper. In a similarmanner,the statutory reference to liability insurance, under which a court could reduce any judgment to a figure within the limits of insurance coverage,would also have been improper. Certainly the reduction of a judgment to the amount of available insurance would be unconstitutional under the majority analysis in the present case. I point briefly to our constitutional history in order to emphasize how the majority's conclusion suggests that for many years prior to White, the thinking on the part of this Court and the people of Montana was constitutionally off base. Idisagree. I11 What choices do the Legislature and the people of Montana have in the event they desire to adopt immunity from suit, as authorized by Art. 11, S 18, Mont. Const. 1972? Unfortunately I am not able to assistby giving any sense of direction. If I understand the thinking of the majority correctly, legislationwhich inany way restricts recovery of any damages claimed by an injured party would be impermissible. That seems to leave only one alternative: the adoption by a 2/3 vote of each house of a statute which grants total immunity to the state, counties, cities, towns and allother localgovernmentalentities. If sucha statute

were enacted, it apparently could not contain any limitation with regard to insurance limits because of the holding in this case. Apparently absolute immunity adopted by a 2/3b I,. .* *i

,

vote of each house is the only choice that has not been rejected by this Court. I regret that this is the tragic choicewhich remains. IV I find that Art. 11, 

### 5 16

## , Mont. Const., must be compared to 

### 5 18 of that same article. The canons of constitutional construction to be applied in comparing two different provisions require that the constitution be considered as a whole, that all provisions bearing upon the

same subject matter receive appropriate attention and be construed together, and that specific provisions control broad and generalprovisions. SeeJonesv. Judge (1978),176 Mont. 251, 255, 577P.2d 846, 849. In construingthe two constitutional provisionshere,we note that the people of Montana properly adopted an exception. They amended Art. 11, 5 18 several years after they adopted 5 16. We also note that S 16 is the broad and general provision guaranteeing access to the courts and a remedy for every injury. Section 18, on the other hand, is a specific provision allowing limitations on legal redress against thegovernment. Section 2-9-107,MCA,was adopted in accordance with 

### 5 18. The result is that the various governmental entities became immune fromdamages in excess of $300,000 for each claimant and $1,000,000 for each

occurrence. I conclude that 

### 5 2-9-107, MCA, is a constitutionallyauthorized limitationunderArt. 11,S 18 of the Constitution. 

### v Even if Iwere to accept the holding ofWhite and apply the strict scrutiny test to the legislation as required by the majority here, I would not reach a conclusion that 

### 5 2-9-107, MCA, is unconstitutional. I find the extensivelegislative findings set forth in § 2-9-106, MCA, to be compelling. The legislature recognized that unlimited liability makes it increasingly difficult, ifnot impossible,to purchase insurance coverage. The legislatureemphasized the high risk activities which must be performed by governmental entities and pointed out that all of such functions and services entail a potential for civil liability far beyond the potential liability of corporations or other persons in the private sector. The legislature further found that these functions are necessary components of government and that despite limited resourcesand competition for these resources betweenvarious programs, the services shouldbe furnished to the people of this state. The legislature found that liability for damages for tort is more than a cost of doing business, and that its effect upon government goes farbeyond

a simple reduction in governmentalrevenues. The legislature concluded that unlimited liability would precipitate severe budget problems. Of particular significance are the following:



# ..

# . The legislature finds these potential results of unlimited liability for tort damages to be unacceptable and further finds that, qiven the realities of modern government and the litigiousnessof our society, there is no practical way of completely preventing tortious injury by and tort damages against the state and other governmental entities. The legislature therefore expressly finds that forced reduction in critical governmental servicesthat could result in unlimited liability of the state and other governmenta.1 entities



## .

# .. constitutes a compelling state interestrequiring the applicationof the limitations on liability and damages provided in parts 1 through 3 of this chapter. The governor concurred in these findings when he signed the legislation.I find these legislative findings and statements of purpose to be a clear,understandableand cogent explanation for the conduct of the legislature and the governor in passing this bill. These findings express major policy decisionswhich arepeculiarlywithin legislativecompetence. For example, the financial impact of abolishing themonetary limiton sovereignimmunity is amatter which could be clarified by legislative hearings. Thatprocess is not available to this Court. Unlike the legislature, we have no 

### way of studying the economic and social trade-offs which might be involved if the State is subjected to unlimited liability. I would hold that the legislative findings are sufficient to establish a compelling state interest. As a result, Iwould conclude that even under the equal protection analysisof the

Mr. Justice L. C. Gulbrandson: I join in the dissents of Mr. Chief Justice Turnage and ,7 Mr. JusticeFred J. Weber.



### v&dPJustice 

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