No. 90-552 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

RUSSELL DEWEY ALLMARAS, 

Plaintiff and Appellant, 

YELLOWSTONE BASIN PROPERTIES, a Montana corp., and PATTEN 

CORPORATION, a foreign corp., 

Defendants and Respondents, 

RICHARD RIOS, 

Plaintiff and Appellant, JUN - 4 1991 

-vsYELLOWSTONE BASIN PROPERTIES, a Montana 

CORPORATION, a foreign corp., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Walter H. Madden, Livingston, Montana; Karl Knuchel, 

Livingston, Montana. 

For Respondent: 

Todd R. Hillier; Josephson & Fredricks, Big Timber, 

Montana ; John F. Sullivan; Hughes, Kellner, 

Sullivan & Alke, Helena, Montana; Gene I. Brown; 

Landoe, Brown Law Firm, Bozeman, Montana. 

Submitted on briefs : April 11, 1991 

Decided: June 4, 1991 

Filed: 
Justice Fred J. Weber delivered the opinion of the Court. 

Plaintiffs, Russell Dewey Allmaras and Richard Rios, initiated 

this suit in the District Court for the Eighteenth Judicial 

District, Gallatin County, alleging statutory wrongful discharge 

(Count I), common law discharge (Count 11), and violation of the 

implied covenant of good faith and fair dealing (Count 111). The 

District Court granted the defendantst motion for partial summary 

judgment on Counts I1 and 111. The consolidated cases were then 

tried to a jury on Count I only. The jury found that plaintiffs 

had not been wrongfully discharged. Plaintiffs appeal, presenting 

five constitutional challenges to the Wrongful Discharge Act found 

in Title 39, Chapter 2, Part 9, MCA. We find no merit in any of 

the constitutional claims, and affirm the District Court's grant 

of partial summary judgment on Countts I1 and 111. 

The issues are: 

1. Does the Wrongful Discharge Act violate the right of trial 

by jury under the Montana Constitution? 

2. Does the Wrongful Discharge Act violate the privileges and 

immunities clause and the equal protection clause of the Montana 

Constitution? 

3. Does the Wrongful Discharge Act impair the obligation of 

contracts in violation of the Montana Constitution? 

4. Does the Wrongful Discharge Act violate substantive due 

process in violation of the Montana Constitution? 

Yellowston Basin Properties, Inc. (Yellowstone Basin) is a 

Montana corporation and wholly owned subsidiary of Patten 
Corporation. Yellowstone Basin hired plaintiffs as real estate 

sales representatives for the company. Yellow Basin terminated 

both plaintiffst employment with the company and this suit 

followed. 

I 

Does the Wrongful Discharge Act violate the right of trial by 

jury under the Montana Constitution? 

Plaintiffs argue that because the Wrongful Discharge Act 

places a cap on the amount of damages recoverable for wrongful 

discharge, the right to have a jury determine damages has been 

infringed in violation of Article 11, 5 26, of the Declaration of 

Rights of the Montana Constitution. It is a well-established 

principle that a party does not have standing to challenge the 

constitutionality of a statute unless he has been adversely 

affected by the challenged statute. Jones & Herriott v. Judge 

(1978), 176 Mont. 251, 253, 577 P.2d 846, 847-48; Chovanak v. 

Matthews (1948), 120 Mont. 520, 526, 188 P.2d 582, 585. This Court 

declines consideration of constitutional issues which are rendered 

moot by jury verdicts or court judgments. See Stelling v. 

Rivercrest Ranches, Inc. (1986), 224 Mont. 313, 316, 730 P.2d 388, 

390-91. 

The jury determined that Allmaras and Rios were not wrongfully 

discharged. Based on this jury verdict, Allmaras and Rios are not 

entitled to damages under the Wrongful Discharge Act, and therefore 

cannot claim to be injured by the cap on damages contained in the 

Act. Stellinq, 224 Mont. at 317, 730 P.2d at 391. We hold that 

Allmaras and Rios do not have standing to challenge the 

3 
constitutionality of the cap on damages under the theory that the 

Wrongful Discharge Act violates the right of trial by jury under 

the Montana Constitution. 

Does the Wrongful Discharge Act violate the privileges and 

immunities clause and the equal protection clause of the Montana 

Constitution? 

Allmaras and Rios argue that the Wrongful Discharge Act 

creates classifications that discriminate in violation of the 

privileges and immunities clause and the equal protection clause 

of the Montana Constitution. Article 11, 5 31, reads: 

No ex post facto law nor any law impairing the obligation 

of contracts, or making any irrevocable grant of special 

privileges, franchises, or immunities, shall be passed 

by the legislature. 

Article 11, 5 4, reads in part: 

. . . No person shall be denied the equal protection of 

the laws . . . 

Allmaras and Rios contend that the Wrongful Discharge Act creates 

a discriminatory classification by excluding from the scope of the 

Act wrongful discharge claims brought by employees covered by 

collective bargaining agreements or other written employment 

contracts and claims covered by other specific statutory remedies 

such as the Montana Human Rights Act. In sum, Allmaras and Rios 

argue that because they are in the class that is covered by the 

Act, they are denied the right to bring the common law tort actions 

found in Counts I1 and I11 of their complaint. Count I1 claimed 

common law wrongful discharge and Count I11 claimed breach of the 

implied covenant of good faith and fair dealing. 
The Wrongful Discharge Act does not change the common law in 

recognizing that a general statutory remedy for wrongful discharge 

should not apply to those classes of cases in which the employees 

enjoy other specific contractual or statutory remedies. Under 

common law, tort claims for wrongful discharge and breach of the 

implied covenant of good faith and fair dealing were available only 

to at-will employees. These tort remedies were developed 

specifically to provide redress for employees who had no legal 

protection against wrongful discharge. See Dare v. Montana 

Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015; 

Brinkman v. State (1986), 224 Mont. 238, 729 P.2d 1301. Persons 

employed under term contracts or collective bargaining agreements 

were not allowed to sue in tort, but rather were required to seek 

remedies under their contracts or collective bargaining agreements. 

Brinkman, 224 Mont. 238, 729 P.2d 1301; Fellows v. Sears, Roebuck 

and Co. (1990), 795 P.2d 484; Nordlund v. School Dist. No. 14 

(1987), 227 Mont. 402, 738 P.2d 1299. Likewise, claims arising 

under discrimination statutes such as the Human Rights Act and the 

Governmental Code of Fair Practices may not form the basis of a 

tort claim. 5 49-2-509(7) and 49-3-312(7), MCA; Harrison v. 

Chance, (1990) 797 P.2d 200. 

Plaintiffs' argument that the codification of the common law 

tort of wrongful discharge denies them the right to claim the 

common law tort of wrongful discharge is without merit for the same 

reasons that plaintiffs did not have standing to challenge the 

constitutionality of the limitations on damages. As already stated 

under Issue I, a party does not have standing to challenge the 
constitutionality of a statute unless he has been adversely 

affected by the challenged statute. Jones & Herriott, 176 Mont. 

at 253, 577 P.2d at 847-48. Since the classifications established 

in the Act are the same as those under common law, plaintiffs 

cannot claim that they have been adversely affected by the loss of 

the common law tort claim. We hold that Allmaras and Rios have no 

standing to challenge the constitutionality of the Wrongful 

Discharge Act's elimination of the common law tort of wrongful 

discharge under the theory that the Act creates discriminatory 

classifications in violation of the privileges and immunities 

clause and the equal protection clause of the Montana Constitution. 

The Wrongful Discharge Act does however prevent plaintiffs1 

claims of breach of the implied covenant of good faith and fair 

dealing. 5 39-2-912, MCA. In 1982, this Court set forth the 

employer's duty of good faith and fair dealing. Gates v. Life of 

Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063. Plaintiffs 

apparently are asserting that it is a violation of their 

constitutional rights for the legislature to eliminate this common 

law cause of action. "No one has a vested interest in any rule of 

common lawt' and as a general rule, "the legislature, under its 

plenary power to act for the general welfare, may alter common law 

causes of action. 'I Meech v. Hillhaven West, Inc. (1989), 238 Mont. 

21, 31, 776 P. 2d 488, 494. For policy reasons, the Legislature has 

debated and passed statutes in a number of legal areas that take 

away causes of action or constrict liability. Meech, 238 Mont. at 

33, 776 P. 2d at 495. The general rule that no one has a vested 

interest in a rule of common law refutes the plaintiffs1 argument 

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that the Act unconstitutionally deprives them of the fundamental 

right to a claim of breach of the implied covenant of good faith 

and fair dealing. Meech, 238 Mont. at 34-35, 776 P.2d at 496. 

We hold that there is no merit in plaintiffs' claim that the 

Wrongful Discharge Act's elimination of breach of the common law 

tort claim of the implied covenant of good faith and fair dealing 

violates the privileges and immunities clause and the equal 

protection clause of the Montana Constitution 

I11 

Does the Wrongful Discharge Act impair the obligation of 

contracts in violation of the Montana Constitution? 

The Wrongful Discharge Act became effective on July 1, 1987. 

Plaintiff, Allmaras, claims that he went to work on or about July 

1, 1987, and that the parties of necessity would have had to come 

to an agreement on his contract prior to that date. Therefore 

imposing the limitations found in the Act impairs the obligation 

of his contract in violation of Article 11, 5 31, which reads: 

No ex post facto law nor any law impairing the obligation 

of contracts, or making any irrevocable grant of special 

privileges, franchises, or immunities, shall be passed 

by the legislature. 

Allmaras presented no evidence that the parties entered into an 

agreement prior to July 1, 1987. The only evidence before the 

trial court on this point was the affidavit of the person who hired 

Allmaras as a sales representative for Yellowstone Basin. The 

company's records show that Allmaras began his employment on or 

about July 20, 1987. We hold that Allmaras failed to present any 

evidence to support his contention that the Wrongful Discharge Act 
impaired the obligations under his contract in violation of the 

Montana Constitution. 

IV 

Does the Wrongful Discharge Act violate substantive due 

process in violation of the Montana Constitution? 

Plaintiffs cite no legal authority, nor do plaintiffs explain 

how the Wrongful Discharge Act violates substantive due process 

beyond a reiteration that it is discriminatory, which has already 

been addressed under Issue 11. Rule 23 (a) (4) , M.R.App. P. requires 

the appellant to file a brief containing "the contentions of the 

appellant with respect to the issues presented, and the reasons 

therefor, with citations to the authorities . . . relied on." 

Plaintiffs1 due process argument fails to comply with this 

requirement and this Court will not address this issue. 

Affirmed. 

// We Concur: 

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