No. 85-07 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

RICHARD B. PFOST, 

Plaintiff and Respondent, 

THE STATE OF MONTANA, MISSOULA COUNTY, 

and MINERAL COUNTY, political subdivisions 

of the State of Montana, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Michael Young argued, Dept. of Administration, 

Helena, Montana 

Clayton Herron, Dept. of Administration, Helena 

Boone, Karlberg & Haddon; Randy J. Cox argued for 

Missoula County, Missoula, Montana 

M. Shaun Donovan, Mineral County Attorney, Superior, 

Montana 

For Respondent: 

Green, MacDonald & Kirscher; Joan B. Nehman argued for 

Pfost, Missoula, Montana 

For Amicus Curiae: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Goetz, Madden & Dunn; James Goetz argued for Leslie 

Erickson, Bozeman, Montana 

Michael W. Flanigan, for Erickson, Anchorage, Alaska 

Crohley Lan Firm; Randall Bishop for Oscar L. 

Heinrich, Jr., Billings, Montana 

Filed: 

Submitted: August 29, 1985 

Decided: December 31, 1985 

Clerk 
Mr. 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 alleged were due to the negligence 

of the State of Montana, Department of Highways, Montana 

Highway Patrol, and Missoula and Mineral Counties. Mineral 

County was 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. 

The bridge was extremely icy, dangerous and hazardous and had 

been left in such a condition for several hours. He alleged 

no precautions were taken by defendants despite the fact that 

three separate wrecks had occurred prior to Pfost's arrival. 

Pfost lost control of his rig, crashed through the guardrail, 

and plummeted over the west bank of the bridge. He sustained 

a broken neck and is now a quadriplegic. He seeks 

compensatory damages of $6 million. 

On the same day as his complaint for personal 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, after holding a 
hearing 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 in Montana 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. In Art. 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 

legislative assembly without first having been considered and 

acted upon by [the Board 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 for by 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 

Examiners was 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.s 
rejected either by the Board or by 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 student at the State University 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. 

This Court 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. The dormitory building is the property of the 

state, and the state is charged with its management 

and control, and, while it does not have any moral 

right to commit a tortious act, it has the same 

capacity to do so as any other corporation. 

(Citing authority.) The maxim of the English law, 

'the King can do no wrong,' does not find. a place 

in the jurisprudence in this country. (Citing 

authority.) The state, like any other corporation, 

can act only through its agents, and if the state 

of Montana were a private corporation, it would 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 other words, the state is 

not liable for the negligent acts of its agents 

unless through the legislative department of 

government it assumes such liability." 76 Mont. 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 a 
public and not a private purpose and therefore met the 

requirements of the 1889 Montana 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 responsible party in determining and 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 of Montana (1965) . 

The sovereign immunity of the State was construed by 

this Court to prevent suits against officers or agents of 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 suit was an - ex delicto action against the State and could 

not be maintained where the State had not consented to be 

sued. Heiser v. Severy (1945), 117 Mont. 105, 158 P.2d 501. 

The blanket 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 from what would be considered governmental operations. 

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 for public use, and to 

avoid the accumulation of snow and ice. O'Donnell v. City of 
Butte (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 

Johnson v. City of Billings. et al. (1936), 101 Mont. 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 that maintaining a ferry across the Missouri River was 

a proprietary function. Jacoby v. Chouteau County (1941), 

112 Elont. 70, 112 P.2d 1068. Likewise a county, working 

iointly with a city in the construction of a drain ditch, was 

acting in a proprietary 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. 

Johnson v. City of Billings, supra. 

In Longpre v. School District No. 2 (1968), 151 Mont. 

345, 443 P.2d 1, it was held that governmental immunity of a 

school district to tort action was 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 legislature adopted section 40-4402, R.C.M. 

1947, which provided that when an insurer insured any 
political subdivision of the state, municipality, or any 

public body for casua.lty or 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-gment exceeded the amount 

of insurance, the policy should be delivered by 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 

Court held 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 amount of available insurance. 

Counties enjoyed complete immunity for governmental 

functions but not for proprietary functions. Cities did not 

enjoy immunity. Any governmental agency whose authority was 

less extensive than the state could protect itself by 
obtaining liability insurance, and if the entity was 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, 1972 Montana 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: 

"A reading of the record of the 1972 Constitutional 

Convention clearly indicates the framers intended 

to provide 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 governmental agency.' 

"The chairman of that committee, speaking from the 

Convention floor, told the delegates: 

'We submit it's an halienable right to have 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 its general election, the people 

of the State of Montana amended Art. 11, S 18, by adopting 

proposed constitutional amendment No. 2 by a vote of 108,704 
to 76,252. After the adoption of the Constitutional 

amendment, effective July 1, 1975, Art. 11, § 18, of the 1972 

Montana Constitution now reads as 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 each house of the legislature." 

In 1977, the legislature adopted § 2-9-104, MCA, which 

provided a limitation in government liability for damages and 

tort as 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 

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 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 specifically authorized in the contract of 

insurance." 

The validity of 5 2-9-104, MCA, came before us in White 

v. State of Montana (Mont. 1983), 661 P.2d 1272, 40 St.Rep. 

507. This Court held 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 out 
hereafter. 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 on April 29, 1.983. 

11. 

The words and figures of S 2-9-107, MCA, the statute we 

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 

* ~olitical 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 employee 

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

claimant and $1 million 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 specifically waived." 

On its face, the statute is discriminatory. That point 

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.sor is the State, but 

any person with catastrophic damages in excess of $300,000 

will not have full redress. Of course, if the statute were 

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 persons whose 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 on 
both rationality and compelling state interest 

considerations. 

Art. 11, 5 4, of our State Constitution provides in part 

that "[nlo person shall be denied the equal protection of the 

laws." Art. 11, S 4, 1972 Mont. Const. That provision of 

our State Constitution, though similar in wording to the last 

clause of the Fourteenth Amendment of the Federal 

Constitution provides a separate ground on which rights of 

persons within this state may be founded, and under accepted 

principles of constitutional law such rights must 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 constitution may 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 that we 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 Federal Constitution. What we advance here is that we 

have state constitutional provisions which, properly 
interpreted, command the result that we reach today and that 

such result, founded on state constitutional interpretation, 

does not countervail the minimal federal rights guaranteed by 

the Fourteenth Amendment. 

It is perfectly proper for us 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; Shapiro v. Thompson (1969), 

394 U.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 show a 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 Southern Life 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 the 
interest 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 statutes being 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 is necessary 

to achieve a compelling state interest. In 

addition, this test requires that the state 

establish that there is no less onerous alternative 

by which its objective may be achieved." 

Missoula County concedes in its brief that ". . . it is 

established that, in Montana, the right to bring a civil 

action for personal injuries is a fundamental right." 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 'fundamental right' 

which would be required to be measured by a 'strict 

scrutiny' test in order to pass constitutional 

muster, and that the Karla White case so held. 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 case ruled that also." 

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 state was 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 right must pass the 

test of strict scrutiny. We relied on Art. 11, 5 16 of the 
1972 Montana Constitution, and upon our decision in Corrigan 

v. Janney (Mont. 1981), 626 P.2d 838, 38 St.Rep. 545, to hold 

that the right to sue for persona.1 injuries embraced "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." 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 citizens and which their citizens demand" was a 

"bare assertion" which failed to justify a d-iscrimination 

which infringed. upon fundamental rights. - 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 at which error is brought into being." 

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 Antonio 
School 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 there was a fundamental right to education which 

could not be discriminatorily affected on the basis of 

available wealth 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 act under Art. 11, § 18 which 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 each house 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 constitution 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 be 

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 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. It obviously and grammatically refers to 

the "speedy remedy afforded for every injury of person, 

property, or character. " The adjective "this" means the 
person, thing, or idea that is present or near in place, time 

or thought or that has just been mentioned. Websterrs New 

Collegiate Dictionary (1981) . The constitutional framers 

thus construed a "speedy remedy" as comprehending "full legal 

redress." A state constitutional right to full legal redress 

was thereby created. Any state statute that restricts, 

limits, or modifies 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 sustain the constitutional validity 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.in the statute 

must be taken as conclusively found by the legislature, that 

the correctness of the findings is conclusive unless an abuse 

of discretion can be shown and that courts do not have 

jurisdiction or power to reopen, correct or make new findings 

of fact. 

We have shown above that the state constitution provides 

a speedy judicial remedy for every injury of person, property 

or character, and that such speedy remedy includes a full 

legal redress as a fundamental interest. Since a 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 a 
compelling state interest. Serrano, supra, 557 P.2d at 952; 

Washakie Co. Sch. Dist. No. One v. Herschler, supra. 

We set out here in full the legislative findings 

codified in 5 2-9-106, MCA. On these the State relies to 

sustain the 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 for governments to purchase adequate 

insurance coverage at reasonable costs. 

"(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 of miles of highways; 

the operation of municipal transportation systems 

and airport terminals; and the operation and 

maintenance of schools, playgrounds, and athletic 

facilities are only a few of those obligations. 

"(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 resources and competition 

for those resources between 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 in 
governmental revenues. Unlimited liability would, 

because of the requirement for a balanced state 

budget contained in Article VIII, 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 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 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 

liability and damages provided in parts 1 through 3 

of this chapter." 

Bearing in mind that in White 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 legislative plea not to 

require the legislature and other political entities to 

provide the funds necessary to pay the just obligations of 

those entities. In White, we also stated that the payment 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 a balanced 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." Section 
2-9-106, MCA. That statement is so wild in speculation as to 

be on its face unacceptable. 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 State whose 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 retained by the people." 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 legal redress. Our decision 

in White therefore controls the outcome of this case--the 

legislature has invaded a fundamental right granted to 

individuals, and it has 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 fundamental 
right, 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 see no substance in the State's contention, echoed in 

the legislative findings, that limitations on damages against 

governmental entities are necessary 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 such a statement. The federal government carries on 

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 

compensatory and punitive, as part of their cost of business. 

It is a novel argument indeed for a party to complain that it 

is too big and complex, or its employees too poorly trained 

and unchecked, for the party to be able to respond in damages 

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.te had 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 basis 
test 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-ause in 

the State Constitution, adopted. by a referendum vote of the 

people, empowers the legislature to fix immunity limits by a 

two thirds vote of each house of the legislature, that power 

is in effect part 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 

system based upon this mechanism 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-ways remains subject to general 

constitutional requirements governing all 

legislation unless the intent of the Constitution 

to exempt it from such requirements plainly 

appears." 557 P.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 

legislature to amend 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 

unconstitutional invasion by the legislature on a fundamental 

right granted under the State Constitution to sue 

governmental entities for full legal redress. 

In view of our decision, it is not necessary to discuss 

other issues raised by the parties. The judgment of the 

We Concur: 

Chief Justice 
Mr. 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 the majority. This specially concurring opinion 

is written for the purpose of addressing the dissents of Mr. 

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 therefore proceeds 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 courthouse door been 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.nd denies 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 are 
fully compensated but under the statutory limitation he 

receives practically nothing. Pfost is a quadriplegic. The 

$300,000 limitation will not pay the medical expenses for his 

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-aims against the State of Montana. However, 

the statute does have a disparate impact upon people such as 

Pfost who suffered catastrophic injuries. The tort victim 

who fractures a leg receives full compensation. On the other 

hand a quadriplegic, under the limitation imposed, would not 

recoup medical expenses and would be denied any compensation 

for the other aspects of 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 not per se unconstitutional. The next step in equal 

protection analysis is to determine whether the 

discriminatory legislation can he 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 "rationale basis" or "strict scrutiny." 

Some courts have engaged a middle tier analysis. In this 

case e have adopted the "strict scrutiny" test for the 
reason 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 

filed by the Chief Justice just misses the mark. 

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 aspects of injury including pain 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 relevant part 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-east arguably, 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 has 
attempted to determine whether such a limitation affords a 

speedy remedy for every injury as that language was intended 

in Art. 11, Sec. 16. We looked to the next sentence in the 

section which commences "no person shall be 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 clear by the language of delegate DaHood quoted in 

the Chief Justice's dissent. DaHood said: 

We say, in the first sentence, that every citizen 

shall have the right to full legal redress. 

Montana Constitutional Convention Transcript, 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's command. 

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, in not addressing the equal protection issue, leaves 

us in the dark about whether he would apply a rational basis 
test 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 

of people from tort liability. The only significance of this 

constitutional provision is that it requires a two thirds 

vote instead of a majority vote in order to immunize the 

State of Montana from liability. 

Where Justice Weber'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.1 provisions. 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 Justice J. A. Turnage dissenting: 

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, or de1a.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 except as to fell-ow 

employees and his immediate employer who 

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, or delay. 

The first and 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, Section 
Fo person shall be 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 employer who hired him 

if such immediate employer provides 

coverage under the Workmen's Compensation Laws 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. The proceedings 

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 

delegates had a singular and sole purpose in this regard: To 

assure that no person shall be deprived of full legal redress 

for injury incurred in employment for which another person 

may be liable. 

Examination of the proceedings of the Montana Constitutional Conventj-on from 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.on guarantees 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 this remedy 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 

Ashcraft v. Montana Power Co., 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 

specific denial--and this one only--that 

the committee intends to alter with the 

following additional wording: "no person 

shall be 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 employer who hired. him if 

such immediate employer provides coverage under the Workmen's Compensation 

Laws of this state." In other words the 

committee wants to insure that the 

Workmen's Compensation Laws 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 the Workmen's Compensation Law 

and constitutes a mis-application of 

that law to protect persons who are 

negligent. 

The committee commends this provision to 

the convention with the belief that it 
is an important, i.f technical, aspect of 

the administration of justice. 

Montana Constitutional Convention, Vol. 11, a.t 636-367. 

On March 8, 1972, the Convention resolved itself into a 

Committee of the Whole and delegate Murray in recommending 

Section 16 of Article I1 stated: 

DELEGATE MURRAY: [After reading the 

entirety of the above committee report.] 

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 which we should establish in our 

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 decision which 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 that we 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 section be adopted. 

CHAIRNAN GRAYBILL : Mrs. B0wma.n. 

DELEGATE BOWMAN: Mr. Chairman, I wonder 

if Mr. Murray would yield to a question. 

CHAIRMAN GRAYBILL: Mr. Murray, will you 

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--one of 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 

that pole, it broke and it fell with him 
to 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 

coverage of the contractor. Ordinarily, 

if it were 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 this one instance? 

Montana Constitutional Convention, Vol. V, at 1753-1754. 

Delegate Dahood stated: 

DELEGATE DAHOOD: Mr. Chairman, I had 

intended not to speak on this particular 

section simply because I was trial 

counsel on behalf of Charles Ashcraft, 

who is permanently 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 it by 

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 to be exposed to a 

liability that is unprecedented 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 

very basic constitutional right which he 

enjoyed for 80 years in the State of 

Montana. What happened in the Ashcraft 

case? The Montana Trial Lawyers Association, 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 injured working man in the 

State of Montana, and I understand that 

the corporate interest that specifically 

are involved in this have decided that 
they 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 contractor having no connection with the Montana Power Company. 

The Montana Power Company made what we 

call an independent contract to have a. 

new phase placed upon their power 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, through a failure to 

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 the University 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. This was a lodgepole pine; it 

was not as required by statute. This 

was a lodgepole pine that has a useful 

life of from 17 to 20 years at the most. 

This pole had been in place for more 

than 23 years and had not been inspected 

for more than 5 years before the accident occurred. As a consequence, the 

rotting that took place took place below 

the ground level where the lineman, 

before climbing the pole, could not 

detect it, even though in this instance 

Charles Ashcraft did what he was trained 

to do--took a shovel and dug around the 

base of the pole. And as a consequence, 

through the negligence of the Montana 

Power Company, he suffered this permanent injury. IJp until this decision by 

the Supreme Court, there was no question 

that in that situation the injured 

citizen, the injured working man had a 

right for proper redress. The Workmen's 

Compensation law, which is inadequate at 

best, has certain public reasons for its 
existence. 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 injured within your work premises was not entitled to Workmen's Compensation from you because he was employed 

by an independent contractor unless you 

insisted that that independent contractor carry Workmen's Compensation. The 

legislators that were behind that amendment 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 Montana decision. The legal community 

was shocked. None of us were able to 

explain the result to the unions, 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 

bicameral or a unicameral argument here. 

(Laughter) Promptly the lobby of the 

vested corporate interests when across 

the hall--and we determined this to be 

true--and made sure that it did not pass 

in the House. So we're now at 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 have 
some particular tough job that you want 

done on your premises where there may be 

some danger connected with it, what you 

do, you go out and you hire an independent contractor. Don't have your employees in that dangerous area, because 

if they're hurt or there's an accident, 

you have to pay them Workmen'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, you hire someone on 

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 the people that are 

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's Compensation." Maybe you have 

a wife and seven children, but it's $65 

a week for awhile and it's 60, and now, 

of course, the Legislature has raised 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 legal mind could really and truly 

justify what had happened, which has 

resulted in this, that in a particular 

area of industry now we need not have a 

safe environment for the working man. 

The vested corporate interest has imrnunity without paying anything for it. 

Now, how does it work if we return this 

basic right that the injured working man 

had for 80 years? Simply this. Let's 

assume--let's take the Charles Ashcraft 

situation. Charles Ashcraft is injured. 

He proves all these factors about the 

negligence of the Montana Power Company. 

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 the Workmen'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 almost 
useless because of this particular 

interpretation. So what has happened? 

Regardless of all this conflict, this 

technicality, having to use the word 

"Workmen's Compensation" in this particular section, which we didn't want to 

do, because the minute we did it we knew 

that somebody would jump up 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 is not. 

Tt is giving back a basic constitutional 

right that the citizen of Montana had 

prior to that particular decision. And 

we submit to you that by this particular 

provision, all that we are doing is 

returning that right to 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 

are here to make sure that the rights of 

the citizen are protected, and this is 

nothing more than a step forward to make 

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. 

Thank you, Mr. Chairman. 

Montana Constitutional Convention, Vol. V, at 1755-1757. 

Delegate Johnson then inquired of Delegate Dahood: 

DELEGATE JOHNSOPJ: Wade, I'm a cattle 

rancher down in southeastern Montana and 

we live way back in the hills, off the 

road. We have to maintain our own road; 

in fact, it's 12 miles there. We built 

what kind of a road we have, and we try 

to get by on it. We have some homemade 

bridges there, and this and that. As a 

point of clarification, I wanted to ask 

you, where we would contract somebody to 

do some work on this road and perhaps 
one of them with a piece of heavy 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? 

DELEGATE DAHOOD: Torrey, you would not 

be responsible. This amendment does 

nothing more than return the law to what 

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 residence up to some 

type of lawsuit, is simply, absolutely 

not true. That's why 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 situation wouid be no different that it's been in all the years gone 

by, Torrey. 

Montana Constitutional Convention, Vol. V, at 1758. 

In the clear and bright light of this record, there 

should be no reason for disagreement on what the intention of 

the Constitutional Convention delegates was and what they had 

in mind when they adopted Article 11, Section 16, or what the 

citizens understood when they voted upon this provision. 

The majority opinion ir, its interpretation of Article 

11, Section 18, of the Montana Constitution and 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.nding with relation to other constitutional articles does a subsequent constitutional amendment 

have? What power do the people have to respond to any amendment through their Legislature? 

Article 11, Section 1, provides: 
All pol-itical power is vested in and 

derived from the people. 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 

form of government 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 1972 Constitution, when adopted by the people, 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. 

In a given factual context, each Article of our Constitution must have equal and recognized standing. If such were 

not the case, and the document not read to harmonize each of 

its provisions, interpretive chaos may well result. 

Amendments amend amendments and. this must be recognized 

by the Court. 

The original Article 11, Section 18, of the 1972 Constitution provided: 

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. 

An amendment to this Section was presented to the 

people by legislative referendum and in 1974 the people 

amended Article 11, Section 18, which now provides: 

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 in White, 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 employee of 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 

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 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 equal protection under 

Article 11, Section 4, of the Montana Constitution. 

I believe S 2-9-107, MCA, meets the test of rationality 

and compelling State interest. 

The majority 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 its provisions. They 
are not mere bare assertions or only a legislative plea not 

to require government to pr0vid.e funds. They are carefully 

considered and a.rticulated reasons why government of the 

people must be protected from unlimited liability. 

The result of the majority opinion not only affects the 

State government, which arguably may have a deep pocket, but 

every County, City, School District, Irrigation District, 

Fire District, and. many other small governmental entities as 

well, which unarguably do not have a deep pocket. 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 the people in 1974 adopted Article 11, Section 18, 

they authorized the legislature to specifically provide 

immunity from suit to governmental entities for injury to 

persons or property. This is precisely what 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 or property 

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-e 11, Section 16, does 

not support this interpretation. 

The clear intent of the 1972 delegates to the Constitutional Convention does not support this interpretation. 

In adopting the second sentence of Article 11, Section 

16, they intended and did provide full legal redress for 
injury incurred in employment for which others may 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 to decide otherwise requires a denial 

of the doctrine of separation of powers in Article 111, 

Section 1, of the Montana Constitution. 

This Court should reexamine its interpretation of 

Article 11, Section 16, articulated in White and the cases 

controlled by that decision. 

-4 J[,-T-- 

Chief Justice 

-,A- 
Mr. Justice Fred J. Weber dissents as 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 the majority opinion here. 

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. 

[Emphasis supplied.] - 

The underscored portion was added by a constitutional 

amendment and approved by referendum vote of the people in 

1974. As pointed out in the majority opinion, prior to that 

amendment, the state and various governmental entities had no 

immunity from suit under the 1972 Constitution. The constitutional referendum 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 normal majority 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 legislature and was also approved by the governor. The adoption of that statute appears to satisfy the 
requirements 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 

legislature and the governor, in particular, that they could 

not provide for immunity under section 18 by limiting 

recovery to certain types of damages or components of injury. 

The majority opinion in Pfost now tells the people, 

members of the legislature and 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 of damages for which 

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 an unsettled 

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 Constitution provided 

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 

as Art. 11, § 16 of the 1972 Montana 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 action unless a policy of liability insurance existed. If the rationale of the majority in 

this case were applied, such total immunity would have been 

constitutionally improper. In a similar manner, 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. I disagree. 

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 assist by giving any sense of 

direction. If I understand the thinking of the majority 

correctly, legislation which in any 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 all other local governmental entities. If such a 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 2/3 
b 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 

choice which 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 general provisions. See Jones v. Judge (1978), 176 

Mont. 251, 255, 577 P.2d 846, 849. 

In construing the two constitutional provisions here, 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 the government. Section 2-9-107, MCA, was adopted in 

accordance with 5 18. The result is that the various 

governmental entities became immune from damages 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 

constitutionally authorized limitation under Art. 11, S 18 of 

the Constitution. 

v 

Even if I were to accept the holding of White 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 extensive 
legislative findings set forth in § 2-9-106, MCA, to be 

compelling. The legislature recognized that unlimited liability makes it increasingly difficult, if not impossible, to 

purchase insurance coverage. The legislature emphasized 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 resources and competition for these resources 

between various programs, the services should be 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 far beyond 

a simple reduction in governmental revenues. 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 

litigiousness of 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 services that could 

result in unlimited liability of the 

state and other governmenta.1 entities . . . constitutes a compelling state 

interest requiring the application of 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, understandable and cogent explanation 

for the conduct of the legislature and the governor in 

passing this bill. These findings express major policy 

decisions which are peculiarly within legislative competence. 

For example, the financial impact of abolishing the monetary 

limit on sovereign immunity is a matter which could be clarified by legislative hearings. That process 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, I would 

conclude that even under the equal protection analysis of the 

Mr. Justice L. C. Gulbrandson: 

I join in the dissents of Mr. Chief Justice Turnage and 

,7 Mr. Justice Fred J. Weber. 

v&dPJustice 1'