No. 88-410

INTHE SUPREME COURTOF THE STATE OF MONTANA
1989

RUSSELL E. MEECH, Plaintiff,-vsHILLHAVENWEST, INC., and R. RON SEMINGSON, Defendants.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:

For Plaintiff:

Best Law Offices;Michael Best argued,Great Falls,Montana

For Respondent:
James,Gray & McCafferty;Robert F. James, Great Falls, Montana Jackson,Lewis, Schnitzlerand Krupman; Joel P. Kelly argued,and Elizabeth Platte Johnson on the brief, LosAngeles, California

ForAmicus Curiae: Church, Harris, Johnson & Williams; Cresap S. McCracken, Great Falls,Montana PatrickW. Shea;Paul, Hastings,Janofsky & Walker, Washington,D.C.



### JUN

## 231989 

# Filedzd sa;l#4
CLERKOFSUPRElblECOURT STATEOF MONTCZI" Submitted: April 11, 1989 De2ided: June 29, 1989

1

'

### ''ClerkMr. Justice R. C. McDonough delivered the Opinion of the Court.

This opinion concerns questions certified to this Court by the United States District Court for the District of Montana, Great Falls Division, Honorable Paul G. Hatfield presiding. The questions are as follows: (1) Is the Montana Wrongful Discharge From Employment Act, 55 39-2-901 to -914, MCA, unconstitutional in that it

serves towrongfully deprive an individual falling within the purview of the Act from his or her right to "full legal redress" within the meaning of Article 11, S 16 of the Montana Constitution? (2 Are those provisions of the Montana Wrongful Discharge From Employment Act which expressly prohibit recovery of noneconomic damages, and limit the recovery of punitivedamages,violativeof an individual's right to "full legal redress" within the meaning ofArticle 11, 5 16 of the Montana Constitution? We answer "No"to both questions. Petitioner Meech's action in the United StatesDistrict Court claims damages for wrongful termination from employment,breach of the implied covenant of good faith and fair dealing, and intentional or negligent infliction of emotional distress. Meech also seeks punitive damages for allegedlyoppressive,malicious, and unjustifiableconducton the part of Meech's former employer, respondent Hillhaven. The claims grew from the allegedwrongful discharge ofMeech by Hillhaven. Hillhavenmoved to dismiss asserting that the Montana Wrongful Discharge From Employment Act (Act) precluded Meech's common-law claims. Meech responded to the motion by contending that the Act violated Article 11, 

### 5 16 

### of the Montana Constitution. Certificationof the questionspresented here followed. Before fully answering the questions, a brief summary of the Act aids in understanding the issues. The Act provides the exclusive remedy and procedure for actions formerly governed to a great extent by common-law requirements:

Preemptionof common-lawremedies: Except as provided in this part, no claim for discharge may arise from tort or express or implied contract.

Section 39-2-913,MCA. The Act exempts from its provisions

causes of action for discharge governed by other state or federal statutory procedures for contesting discharge disputes. For example, theAct exempts from itsprovisions, discriminatorydischarges,and actions forwrongfuldischarge from employment covered by written collective bargaining agreements or controlledby awritten contract for a specific term. For other wrongful discharge claims,however, theAct provides the exclusive procedure. Sections 39-2-912 to -913, MCA. The Act repealsMontana statuteswhich formerlygranted to both employees and employers the right to terminate the employment relationship for fault on the part of the other party. Sections 39-2-504 to -505, MCA (1985). The Act's provisions on discharge also limit the operation of § 39-2-503, MCA, Montana's "at-will" statute. See 

### 5 39-2-902, MCA

# . In place of the prior governing statutes and the common-law causes of action it abrogates, the Act provides a statutorily defined cause of action for wrongful discharge. The Act broadly defines "discharge" to include constructive discharge. Section 39-2-903, MCA. Covered employees may sue for discharges defined as wrongful under the Act. Section 39-2-904,MCA. Three causes of action for "wrongful" discharge exist under the Act: discharge inretaliation for an employee's refusal to violate public policy or for reporting a violation of public policy, discharge in violation of the express provisions of the employer's written personnel policies, and discharge for reasons other thangood causeasdefined in the Act. The Act limits the time forbringing a cause under its provisions to

one year from the date of discharge. Section 39-2-904,MCA. The Act establishes the extent of employers' liability for wrongful discharge. Under the Act, plaintiffs have no claim to damages for "painand suffering, emotional distress, compensatory damages, or punitive damages, or any form of damages, except as provided for in subsections (1) and (2)

[of 8 39-2-905, MCA]

# ." Subsections (1) and (2) of S 39-2-905, MCA, provide damages for lost wages and fringe benefits, together with interest thereon for aperiod not to exceed four years from the date of discharge. The Act defines the value of employee paid pension plans, insurance coverage, vacation time, and sick time as fringe benefits. Subsection (2) provides for an award of punitive damages where claimants can show by clear and convincing evidence actual malice or actual fraud. Interim earnings, including those the claimant could have earned with reasonable diligence, are to be subtracted from the award for lost wages. Section 39-2-905(1)

## ,MCA. The Act also provides an incentive for arbitration as an alternative mechanism for settling employmentdisputes. Section 39-2-913,MCA. Meech in essence argues that the Act denies his fundamental right to full legal redress under Article 11, S 16 of theMontana Constitution. Meech also contends that the Act violates equal protection by denying the fundamental right to full legal redress to a class of claimants without demonstrating that the classification furthers a compelling state interest. See Corriganv. Janey (Mont. 1981), 626P.2d838, 38 St.Rep. 545; White v. State (1983), 203 Mont. 363, 661P.2d 1272;Pfostv. State (1986),219 Mont. 206, 713 P.2d 495. Hillhaven answers that the Act does not violate equal protection of the laws or infringe on a fundamental right to full legal redress because Article 11, S 16 of the Montana Constitution guarantees only a right of access to courts to seek a remedy for wrongs recognized by common-law or statutory authority,and the legislature may alter common-law

causesof action topromote a legitimate state interest. See Shea v. North Butte Mining Co. (1919), 55 Mont. 522, 179 P. 499; Stewartv. Standard PublishingCo. (1936),102Mont. 43, 55 P.2d 694; Reeves v. Ille ~lectric Co. (1976), 170 Mont. 104, 551 P.2d 647. We agree with Hillhaven and overrule Corrigan, White, and Pfost insofar as they hold thatArticle 11, § 16 of theMontana Constitution guaranteesa fundamental right to full legal redress. I. THE ACT DOESNOTVIOLATE THE FUNDAMENTAL RIGHT OF FULL LEGAL REDRESS, BECAUSE NO SUCH "FUNDAMENTAL RIGHT" IS CREATED BY ARTICLE 11,SECTION 16.

Summarized, this section covers the following points: A. The conclusion that Article 11, 

### 5 16 of the Montana Constitution doesnot create a fundamentalright results from examination of long-standing, fundamental principles of constitutional interpretation. B. The basic rule that the legislature may alter the common law harmonizes with an interpretationofArticle 11, § 16,as only amandate to the courts. C. It also follows from the words of the original guarantee,and the meaning intended for the 1972amendment to the original guarantee, that Article 11, S 16, does notguarantee a fundamental right to a particular cause of action, remedy,or redress. D. Judicial creationof such a fundamentalright in this context would also violate the elemental principle of separationofpowers. E. Meech's arguments on these points are inapposite.

A. Historically, Courts Have Construed Constitutional Guarantees in Light of the Particular Abuses Those Guarantees Seek to Prevent.

In construing a constitutional guarantee, courts "have looked to the object and purpose to be accomplished by the provision." C. J. Antieau, Constitutional Construction S 3.05 (1982)

# . A 

### "'veryuseful key to the construction [of]a constitutional guarantee is to inquire what was the evil to be removed,andwhat remedydid the new instrumentpropose;

# .

. . I #I C. J. Antieau, Constitutional Construction § 3.05 (1982)(quoting Miller, Lectures on Constitutional Law 82 (1891) 1. Construing our speedy remedy guarantee in light of the particular abuses the framers sought to correct supports the argument that the clause does not guarantee a fundamental right to "full legal redress." The predecessor to Article 11, 16, was Article 111, § 6 of the 1889 Montana Constitution, which reads as follows: 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 administeredwithout sale, denial, ordelay. The principal cases Hillhaven relies on, Shea, Stewart, and Reeves, concluded that Article 111, 5 6 of the 1889Constitutiondid not constrict legislativepowers because the article only provided a mandate to the courts to provide equal access to causes of action recognized at law. Shea, 179 P. at 502; Stewart, 55 P.2d at 696; Reeves, 551 P.2d at 651; cf. State ex rel. Carlin v. District Court (1945), 118 Mont. 127, 164 P.2d 155 (trial court's failure to convene jury for case long awaiting jury trial because of inconvenience to jurors violates the mandate in Montana's remedy guarantee requiring that courts provide a proper administration of justice); Tooke v. Miles City Production Credit Association (Mont. 1988), 763 P.2d 1111, 45 St.Rep. 1993 (fact that United States District Courts for the District of Montana deny federal subjectmatter jurisdiction of tort claims against production credit unions weighs for finding subject matter jurisdiction in Montana District Courts because Montana's remedy guarantee mandates a forum for claims cognizableaccording to applicable law). Legalhistory demonstrates that Shea and Stewartreached the correct conclusion. Article 111,S 6,was notplaced in the Constitution as a directive to the legislature. Rather, the guarantee was directed at the courts, and it was framed to provide for equality in the administration of justice. Prior to the decisions in Shea and Stewart,this Court traced the guarantee embodied inArticle 111,B 6,to Chapter 40 of the Magna Carta. Stephens v. Nacey (1913), 47 Mont. 479, 482-83, 133 P. 361, 362. TheMagna Carta's chapter 40,which contains language similar to the last segment of ~rticle 111, § 6,reads as follows:

To no one will We sell, to none will We deny or delay,right or justice.A. E. Howard, Magna Carta: Text and Commentary 43 (1964). The languageof the first part ofArticle 111, § 6,providing for a speedy remedy for injury to person, property, and character, resembles commentary on Chapter 40 by the influential 17th century expositor on the common law, Sir Edward Coke:

"And therefore every Subject of this Realm, for injury done to him in bonis, terris, vel persona [i.e., goods, lands, or person], by any other Subject,be he Ecclesiastical, or Temporal,Free or Bond, Man or Woman, Old or Young, or be he outlawed, excommunicated, or any other without exception, may takehis remedyby the course of the Law,andhave justice and right for the injurydone him, freelywithout sale,fullywithout anydenial, and speedilywithoutdelay."

Shuman, Oregon's Remedy Guarantee, 65 Or. L. Rev. 35, 39

(1986) (quoting E. Coke, Second Institute 55-56 (4th ed. 1671))

# . Coke's version of Chapter 40 influenced the content of remedy clauses inmany state constitutions:

The constitutions of thirty-seven states contain passages which, in substance, provide that the courts "shall be open to every person, and speedy and certain remedy afforded for everywrong and for every injury toperson, property, or reputation." 

# .

. . [Ilt appears most likely that the highly influential Sir Edward Coke, commenting on the Magna Carta more than four centuries after its adoption, was primarily responsible for the contemporary forms of the various certain-remedy provisions.
Note, Constitutional Guaranteesofa Certain Remedy, 49 Iowa L. Rev. 1202, 1202-03 (1964). Coke's interpretationof the Magna Carta is, in a broad sense, faithful to its origins. The English feudalnobility sought through Chapter 40 to eliminate abuses in the writsystem which governed King's courts. The abuses in the system made the price of the writ obtained by a would-be litigant a determinant of the quality of justice received. See generallyW. McKechnie,The Magna Carta: A Commentary on the Great Charter of King John (2d ed. 1914)

# . The goal of ending the abuses present in the English writ system eventually lead to the embodimentofa greater constitutional principle:

It is evident that theMagna Cartadid not putdown the practice of chargingheavy fees forwrits. Yet this chapter [Chapter 401, although so frequently misunderstood and exaggerated, is still of considerable importance. 

# . . . [Ilt has been interpreted as a universal guarantee of impartial justice to high and low; and because, when so interpreted, it hasbecome in thehands ofpatriots in many ages a powerful weapon in the cause of constitutional freedom.

W. McKechnie, The Magna Carta: A Commentary on the Great Charter ofKing John 397-98 (2ded. 1914). The recognition of the historical meaning ofguarantees derived from Chapter 40 asmandating that the courtsprovide equal access to justice, led to limited interpretations of remedy clauses when plaintiffs claimed the provisions constricted the legislature. Wheeler v. Green (Ore. 1979)

## , 593 P.2d 777, 789 (citing Davidson v. Rogers (Ore. 1978) (Linde, J. concurring) 574 P.2d 624); Goldberg v. Musim (Colo. 1967), 427 P.2d 698; Shoemaker v. ~ountainStates Telephone and Telegraph Co. (Colo.App. 1976), 559 P.2d 721; Twin Falls Clinic & Hospital Bldg. Corp. v. Hamill (1d. 1982), 644 P.2d 341; Harrison v. Schrader (Tenn. 1978), 569 S.W.2d 822. The concurring opinion in Davidson by ~ustice Linde set out the rationale for a limited interpretationof the guarantees in remedy clausesas follows:The guarantee in article I, section 10, of a "remedy by due course of law for injury done [one] in his person, property, or reputation" is part of a section dealing with the administration of justice. It is a plaintiffs' clause,addressed to securing the right to set themachinery of the law in motion to recover for harm already done to one of the stated kinds of interest, a guarantee that 

### -- datesbyway of the original state constitutions of 1776 back to King John's promise in Magna Charta chapter 40: 

# . . . It is concernedwith securing a remedy from those who administer the law, through courts or otherwise.
Davidson, 574 P.2d at 625-26 (LindeJ., concurring) (emphasis added)

# . Putanother way:

The guarantee tells those who apply the law when and how they must do so. It says nothing to lawmakers, except insofar as they attempt to interferewith the administration of justice. Schuman, Oregon'sRemedy Guarantee, 65 Or. L. Rev. 35, 67

(1986) (emphasisin original). In Shea, this Court succinctly explained this point holding that Article 111, 6, did not constrict the legislature's power to replace common-law personal injury actions with actions provided by workers' compensation legislation:

A reading of the section discloses that it is addressed exclusively to the courts. The courts are its sole subject-matter, and it relates directly to the duties of the judicial department of theqovernment. Itmeans 

### ----- no-morenor less than that, under the provzions 

### -- of the Constitutionand laws constituting them, the courts must be all- accessible to 

### - ersE alike, without 

## discrimination^---- at the tfme or times 

### -- and the place or places for their sitting, and afford a speedy - -remedy for every wrong recognized by law as being 

### --- remedial.

Shea, 179 P. at 502 (emphasis added). Both Stewart and Reeves quoted Shea for the proposition that the remedy guarantee,as amandate aimed exclusively at the courts,does not constrict legislativepowers. We agree with Shea, Stewart, and Reeves on this point. The history of the guarantee indicates that framers of state constitutions inserted remedy clauses to insure equal administration of justice. Clauses insuring equal administrationof justice are aimed at the judiciary, not the legislature. Therefore, the history of our provision supports Hillhaven's argument that our remedy guarantee does not create a fundamentalright to full legal redress. Such a reading of the remedy guarantee also accords with another rule recognized in Shea: No one has a vested right to any rule of common law.

B. NoOne Has aVested Right to a Rule ofCommonLaw.

The controversy posed by the first question from the United States District Court hinges also on whether Article 11, 16, prohibits the legislature from exercising its plenary power to abrogate the common-law tort causes of action alleged by Meech. The general rule on the constitutional authorityof state legislaturesis that:

[Tlhepeople, through the legislature,have plenary power, except in so far as inhibited by the Constitution, and the person who denies the authority in any given instance must be able to point out distinctly the particular provision of the Constitution which limits or prohibits the power exercised.Missouri River Power Co. v. Steele (1905), 32 Mont. 433, 438-39, 80 P. 1093, 1094. The general rule is alsothat no

one has a vested interest in any rule of common law. Therefore, as a general proposition, the legislature, under its plenary power to act for the general welfare, may alter common-law causesof action. The legislativeactionmay not, however, infringe on constitutional rights. Wehave already pointed out that historically, Article 11, 5 16, does not constrict the power of the legislature to alter common-law

causes of action. The more specific issue here iswhether the legislature may alter or abrogate causes of action sounding in tort. A tortmay be defined as:

[A] civilwrong, otherthanbreach of contract, for which the court willprovide a remedy inthe form of an action for damages. This, of course, says nothing more than that a tort isone kind of legal wrong, for which the law will give a particular redress. 

# .. . When it becomes clear that the plaintiff's interests are entitled tolegal protection against the conduct of the defendant, the mere fact that the claim isnovel willnot of itself operate as a bar totheremedy.

At the opposite extreme is the bold attempt to reduce the entire law of torts to a single broad principle, that any harm done to another is a wrong, and calls for redress, unless "justification" for it can be shown. 

# .. . [Tlhe rule does not tell us what the law willrecognize as "harm" toanother, oras "justification'' for it. There are many interferences with the plaintiff's interests, including many instances of negligently causing mere mental suffering without physical consequences or depriving the plaintiff of the benefit of a contract, forwhich the lawwillgive no remedy, although the defendant has been clearly at fault. 

# . . 

# . It is legal justification whichmustbe looked to: the lawwillhold thedefendant responsible for what the law regards as unjustified---and so stated,thebroad rule [remedy for everywrong] means little,ornothing.

W. L. Prosser,W. P. Keeton,Prosserand Keeton on Torts 5 1, at 2-4 (5th ed. 1984) (emphasis in original). Prosser also explains:

Tort law isoverwhelmingly common law,developed in case-by-case decisionmaking by courts. It is also influencedby statute. Early in the development of American tort law, doctrines emerged with respect to enforcement in tort law of standards derived from criminal statutes. Tort law is affected also by statutes explicitly aimed at changing substantive law rules previously developed by courts. Survival acts and wrongful death acts are examples.

W. L. Prosser,W. P. Keeton,Prosserand Keeton onTorts 

### 5 1, at 19 (5thed. 1984). As Prosser demonstrates,wrongs recognized at law are corrected as provided by law. Legislatures in the Anglo-American system have long been held to possess the authority to expand or reduce claims and remedies available at common law. 0. W. Holmes, The Common Law 112 (1881). The law of Montana has long recognized that the courts and the legislature establish the substantive law governing tort claims. Early Montana statutes contemplated passage of legislationaltering the common law. For example, § 1-1-109, MCA, first enacted as part of the Bannack Statutes, states:

The common law of England, so far as it is not repugnant to or inconsistent with the constitution of theUnited States or the constitution or laws of this state, is the rule of decision in all the courts of this state. (Emphasisadded.)Similarly,Montana lawprovides that there "isno common law in any case where the law is declared by statute." Section 1-1-108, MCA. And statutes in derogation of the common law

are "to be liberally construed with a view to effect their objects and topromote justice." Section 1-2-103,MCA. The legislature's exercise of its power to alter the common law supports in a large part our legal system. And as pointed out by Hillhaven, much of the legislation altering the common law concerns the legislature's decisions on the remedies, redress,ordamages obtainable invarious causesof action. For example, the legislature has arguably expanded liability in adopting comparative negligence in $ 27-1-702, MCA. Similarly, in S 27-1-715, MCA, the legislature has provided a remedy where none previously existed by ordering courts to hold owners of vicious dogs strictly liable in particular circumstances. Recognition of human rights violations under Title 49 of the Montana Code Annotated, prohibition of certain trade practices in the insurance industry under Title 33 of the Montana Code Annotated, and expansion of parents' liability for children's torts (S 40-6-237, MCA) are also instances where the legislature has acted to expand available causes of action, remedies, redress, and damages. Other examplesundoubtedly exist, and where these legislative expansions govern causes of action, courts and administrative bodies are bound to follow their mandate. Legislative decisions to expand liability to further various policy objectives are debated and passed almost routinely. In a like manner, for policy reasons, the Legislature debates and passes statutesthat take away causes of action and/or constrict liability. The following are examples: abolition of a cause of action for alienation of affection (S27-1-601,MCA), abolition of a cause for breachofpromise tomarry (S27-1-602,MCA), protection for certain persons against a cause of action for libel ( 27-1-804, MCA), liability limitations for those rendering emergency

care at an accident scene ( 27-1-714, MCA), liability limitations for those furnishing alcoholic beverages (§ 27-1-710, MCA)

## , liability limitations for persons donating food for charity (S27-1-716,MCA), liability limitations for agents and volunteers ofnonprofit corporations, (§ 27-1-732, MCA)

## , and liability limitations for nonprofit organizations sponsoring rodeos and other events, (B 27-1-733,MCA)

# . Laws

on livestock in open range constitute another legislative limit on liability of partieswho are arguably tort-feasors. Section 60-7-202, MCA. Landowners also benefit from legislative limits on liability. For example, under § 23-2-321, MCA, a landowner owes only a duty for acts or omissions that constitute willful or wanton misconduct to individualsmaking recreational use of surface waters flowing

over or through the landowner'sproperty. Similarly,from a remedy and redress standpoint,property owners benefit from statutory provisions exempting certain property from execution. The Index to the Montana Code Annotated lists

over sixty types of property statutorily exempt from execution. These and other statutesconstrain liabilityand limit remediesand redressavailable at law. In actions governed by the common law, this Court has also established limitations and expansions of liability. For example, in Miller v. Fallon County (Mont. 1986), 721 P.2d 342, 43 St.Rep. 1185,this Court abrogated interspousal tort immunity. Similarly,this Court,acting in its role as lawmaker, recently imposed on employers the duty of good faith and fair dealing. Gates v. Life of Montana Insurance Company (1982), 196 Mont. 178, 638 P.2d 1063. In another decision, breach of the duty of good faith and fair dealingarising from obligations in a lease justified an award of punitive damages. Nicholson 

### v. United Pacific InsuranceCo.

(1985),219Mont. 32, 710 P.2d 1342. This Court has also refused to expand common law. For example, this Court has affirmed a trial court's decision disallowing evidenceof emotionalharm to a shareholderwhere the tortwas committed against the shareholder'scorporation. Moats Trucking Co. v. GallatinDairies (Mont. 1988), 753 P.2d 883, 45 St.Rep. 772. Another case held that the guarantee under Article 11, S 16, does not abrogate a statute of limitations defense. State v. Perry (Mont. 1988), 758 P.2d 268, 45 St.Rep. 1192. The above cited examples of legislative and judicial limitations illustrate that the law, for a variety ofpolicy
reasons, refuses to provide a cause of action, remedy and redress for every injury. This proposition is expressed in Latin as damnum absque injuria,meaning a "loss which does not give rise to an action for damages against the person causing it." Black's LawDictionary 345 (4thed. 1979). The legislation at issue here similarly alters common-law rights and duties and arguablydenies a causeofaction, remedy,and redress for injuries recognized at common law. If Article 11, 16, guarantees a fundamental right to full legal redress as embodied in common-law causes of action, then a myriad of legislation altering common law in a restrictive
manner, as well as the Act, denies this fundamental right. Shea addressed this issue:

If the contention of counsel should be upheld, the consequence would be that the legislaturewould be stripped of all power to alter or repeal any portion of the common law relating to accidental injuries or the death of one person by the negligenceof another.It is true the legislature cannot destroy vested rights. Where an injury has already occurred for which the injured person has a rightofaction,the legislature cannot deny him a remedy. But at this late day it cannot be controverted that the remedies recognizedby the common law in this class of cases, together with all rights of action to arise in [sic] future may be altered or abolished to the extentofdestroying actions for injuriesor death arising from negligent accident, so long as there is no impairment of rights already accrued. Shea,179 P. at 503. As Sheademonstrates, ifArticle 111, § 6, is read as only a directive to the courts to provide for equal administration of justice, then the rule that the legislaturemay alter the common law does not conflict with the speedy remedy guarantee. Therefore, the general rule that no one has a vested interest in a rule of common law refutes Meech's argument that the Act unconstitutionally deprives him of his fundamental right to full legal redress.

C. THE 1972 AMENDMENT TOARTICLE 111, § 6,DIDNOT RECOGNIZEOR CREATEA FUNDAMENTALRIGHT TO FULL LEGALREDRESS.

In 1972,Article 111, § 6 of the 1889 Constitutionwas amended and inserted in the current Constitution as Article 11 16. The amendment added to theArticle as underscored below:

Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person,property,or character. No person shallbe deprived 

### --- of this full legal redress for injury incurred in employment forwhich anotherpersonmay 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. ~ightand justiceshall be administered without sale, denial, or delay.

In Reeves, the amended version of Article 111, $ 6 of the 1889 Constitutionwasheld not to constrict the legislature's decision to alter common law:

As indicated in Shea and Stewart, the legislature isnot constitutionallyprohibited from eliminating common lawrights which have not accrued orvested. The Constitution does not freeze common law rights inperpetuity. Reeves, 551 P.2d at 652. There was no comment in Reeves on the amendment toArticle 111, § 6. 1. TheWording Itself. White and Pfost, without discussing governing precedent, reached the opposite conclusion construing Article 11, Section 16 of the 1972 Montana Constitution on issues involving governmental immunityand equalprotection. White held that Article 11, § 16, "guarantees that all persons have a speedy remedy for every injury," and thus the classification resulting from a cap on tort damages awarded against state governmental entities violated equal protection. White, 661 P.2d at 1275

(emphasisadded). White then concluded that the legislation violated the guarantee because no compelling state interest justified denying the fundamental right to full legal redress forall injuries. White, 661P.2d at 1275. In Pfost,thisCourt faced an equalprotection challenge to an amended version of the damages cap at issue in White. PfostcitedWhite and againheld that Article 11,Section 16, provides a "constitutional right to full legal redress for injury." The phrase "full legal redress" from Article 11,5 16,played an importantrole in this determination:The use of the clause "this full legal redress"has major significance. Itobviouslyand grammatically refers to the "speedy remedy afforded for every injury of person, property, or character.'I 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. Webster's 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 statutethatrestricts, 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.

Pfost, 713 P.2d at 503. There are flaws in this reasoning. As pointed out by Justice Weberlsdissent in White, rules on the construction of constitutional guarantees favor interpretations of the guarantees in line with former judicial decisions where a constitutional convention has approved a similar or identical provision in a new constitution. White, 661 P.2d at 1279

(citing 2A C. Sands, Sutherland Statutory Construction S 45.12, at 37 (4thed. 1973)). If "this full legal redress" refers to the speedy remedy in the firstclause,then the two references are identical and the Convention approved Sheals and Stewart's definition of the guarantee. Shea and Stewart leave little doubt that our remedy provision does not guarantee a fundamental right to a particular cause of action, remedy, or redress. As discussed below, the delegates narrowly drafted the amendment to accomplish the single purpose of limiting the lawmakers1 power in restricting thirdparty actions inworkers1compensation law. Reliance in Pfost on the definitional and grammatical construction of the guarantee is flawed in other ways as well. For example, the word:"injury" as employed in such a constitutional declaration implies the doing of some act which constitutes an invasion of a legal right as established by statutoryor common law,

# ..

# .
16A Am. Jur. 2d Constitutional Law S 616 at 562-63 (2d ed. 1979) (emphasisadded)

# . Or, as stated by one commentator,a "recognized, pre-existing injury is the predicate, not the subject of the clause.

### " Schuman,Oregon's Remedy Guarantee, 65Or. L. Rev. 35, 67 (1986). Similarly, the redress referred to is legal redress. Legalmeans: Conforming to the law; according to law; required or permitted by law; not forbidden or discountenancedby law; good and effectual in law.
Black's Law Dictionary 803 (5th ed. 1979). Legal redress, then, is redress as provided by law, and redress and remedy

are necessarily connected to what the law defines as a cause of action. The words "actions,

### " "cause of action,

### " "right, 

### " "remedy," and "redress" are often used in a legal sense so that one implies the other. In fact, they are so related that at times one necessarily implies the other. However, there are some important distinctions which must be maintained. The term "causeof action" has been defined as follows: 

### "[Tlhe fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief." The cause of action itself is distinguishable from the form it assumes in its prosecution in the courts. The facts constitute the cause of action, and the legal form used to enforce the action is the remedy.State v. Preston (Ohio 1962), 181 N.E.2d 31, 36 (quoting Norwood v. McDonald (Ohio 1943), 52 N.E.2d 67, 72). The maxim, "For every wrong there is a remedy" thus bestows upon the personwhomay be wronged the right to seek redress tobe made whole again in an action, whereas the facts which entitle a claimant to legal redress is denominated the "cause of action." Remedy is neither "redress" nor "relief." Remedy is "[tlhe means by which a right is enforced or the violation of a right is prevented, redressed, or compensated.I' Black's Law Dictionary 1163 (5th ed. 1979)

# . Therefore, the Act does not deny full legal redress or a speedy remedy. It simply defineswhat constitutes the facts whichmustbe established to obtain remedy and redress in the contextofwrongfuldischarge. Similarly, the guarantee of a "speedy remedy" in the first clause of Article 11, 5 16, means such remedy as is provided by law. This "full legal redress," following the guarantee of a speedy remedy,refers to the equal right to be madewhole againbywhat the lawdefines as a cause of action and its elements. Legal requirements and restrictions, as discussed more fullybelow,may be part of the entire package the law calls a cause of action, remedy,and redress. These restrictions and requirements are not established by our Constitution. Rather, it is the duty of the courts and the legislature to establishwhat constitutesavailable causesof action, remedies, and redress. Thus, we disagree with the notion that the proper grammatical and definitional construction of thewords inArticle 11, 5 16 of the Montana Constitution supports the existence of a fundamentalright to redress so that the legislature may not alter causes of actions except by a showing that the legislation serves a compelling state interest. There must be the basis orunderpinning of a cause of action and remedy as defined by the lawmakers before one arrives at the point of redress. 2. The "Intentof the Framers." Basic rules of construction favor deriving themeaning ofArticle 11, 

### 5 16, from its face. From our discussion above, and apart from what is referred to later in this opinion as the Ashcraft amendment,it is apparent that the words ofArticle 11, 5 16, only mandate that the courts provide equal access to causes of action and remedies established by the courts or the legislature. However, even if an ambiguity exists, the debates at the 1972 Constitutional Convention reinforce our initialconclusion. White

### 's and PfostIs interpretation of the effect of the 1972 amendment to the remedy provision ignores the specific meaning ascribed to the provision during debates at the 1972 Constitutional Convention. Pfost, 713 P.2d at 508 

## u urn age, C.J., dissenting)

# . Moreover, the majority's analysis in these decisions overlooks the explanationof the amendment in the Official Text with Explanation of the Proposed 1972 Constitution, a document circulated to inform voters of the contentof the Constitutionprior to the vote on its adoption in 1972. Ourbeginning discussion focuseson the proceedings at the ConstitutionalConvention. The record from the Constitutional Convention of 1972 demonstrates that the addition to Article 111,B 6,wasmeant to address a specific problem created by this Court's interpretationof aworkers' compensation statute:

DELEGATE MURRAY: The committee voted unanimously to retain this section with one importantaddition. The provision as it stands in the present Constitution guarantees justice and a speedyremedy for all without sale, denial or delay. The Committee felt,in light ofa recent interpretation of theWorkmen's Compensation law, that this remedyneeded to be explicitly guaranteed to persons who may be employed by one covered by Workmen's Compensation to work on the facilitiesof another. Under Montana law, as announced in the recent decision ofAshcraft versus Montana Power Company,

[I56Mont. 368, 480 P.2d 8121 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: [Delegate Murray reads the amendment]


# . Montana Constitutional Convention, Vol. V, at 1753-54

(emphasisadded). Following DelegateMurray's explanation of the Ashcraft amendment, Delegate Habedank moved for its deletion:

DELEGATE HABEDANK: Mr. President [Chairman]

## , ladies and gentlemen. Ihave no objection to this being in here if you put it in here with full knowledge of what you are doing. The decision in the Ashcraft case, which I heard and which was brilliantly argued by Mr. Dahood, made quite a change in what a lot of us thought the law was. However, they were interpreting a specific statute of the State ofMontana. All that isnecessary to change their interpretation is to amend the statute of the State of Montana. And you, if you adopt this particular provision, are writing into the Constitution by vote of a majority of this group what I consider to be strictly statutory matter.

Montana Constitutional Convention,Vol. V,at 1755. Delegate Habedank also expressed concern that the addition would extend liability for workers' injuriesbeyond correcting the decision in Ashcraft:

As I view this amendment,itwill not allow anyone to recover from anyone else without negligence onthe part of the person being charged. However, it will eliminate the ability of you as an owner to hire an independent contractor, require him to carry Workmen's Compensation as a part of the coverage,and be assured thatyouwill notbe sued on a third party claim. Montana Constitutional Convention,Vol. V,at 1275. Delegate Dahood, Chairman of the Convention's Bill of Rights Committee, responded to both arguments made by Habedank:

Ihave heard this argument in the SupremeCourt,an argument that had no basis in logic. I have heard it by several defense counsel who represent the best of corporate interests, that this 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 it totally untrue. This section is doing nothing more, and thewording 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 80years in the State ofMontana. 

# . . 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 theminute we did itwe knew that somebody would jump up and say it's legislative,but if you're going todraft 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 thisdecision a year ago, you are 

### -- compelled, sometimes, in fasKioning this precise language to use language that may be seizeduponby someone else as legislative. It is not. It is giving back a basic constitutional right that the citizen of Montana had prior to that particular decision.

Montana Constitutional Convention, Vol. V, at 1255-57

(emphasisadded). It is perhaps ironic that the convention delegates amended the Constitution to correct this Court's restrictiveinterpretation of a legislative enactment, and subsequently this Court in White and Pfost interpreted the addition to constrict the power of the legislature to alter the common law. At any rate, the testimony before the Convention demonstrates that the amendment to Article 11, Section 16,

was to operate in only one particular area of law. Specifically, the addition prevents lawmakers, that is both the courts and the legislature, from denying workers' compensation claimants a cause of action against negligent 

### - third parties for job related injuries. The amendment did not seek to define "full legal redress" as a fundamental right which could not be altered by the legislature. The delegates sought to overturn Ashcraft, not Shea. The entire discussionpresupposes the existenceof legislative powers to alter causesof action,remedies,and redress. The narrow purpose the delegates ascribed to the change in the remedy guarantee is further reflected in the Proposed 1972 Constitution for the State of Montana, Official Text with Explanation, circulated to the voters prior to the vote on adopting the 1972 Constitution. According to the explanation in the voters' information pamphlet, the amendment:

Adds to 1889 constitution by specifically granting to a person injured in employment the right to sue a third party causing the injury, except his employer or fellow employee when his employer provides coverageunderworkmens [sic]compensation laws.
Proposed 1972 Constitution for the State ofMontana, Official Text with Explanation, at 6. In summary, the history of our remedy guarantee, the rule that the legislaturemay alter the common law, and the wording of Article 11, 5 16, support Hillhaven's assertionsthat no fundamental right exists to the common-law claims asserted by Meech. The role the judiciarymust maintain in interpreting constitutional limitationsaffecting the plenary power possessed by the people through their legislature,and through their initiative andreferendumpowers,also supports Hillhaven'sassertions.

D. DerivingANew FundamentalRight FromArticle 11, S 16,Violates SeparationOf Powers.

Both courts and legislatures make the substantive law. The Montana Legislature derives its power to make law from the Constitution's grant ofplenary power inArticle V, S 1:

The legislative power is vested in a legislature consisting of a senate and a house of representatives. The people reserve to themselves thepowers of initiativeand referendum. One conclusion which could be drawn from an application of White and Pfost to the legislation at issue in this case is that while the legislature may play a role in expanding common-law causes of action, its attempts to restrict causes of action newly created by this Court fails under the guarantee in Article 11, § 16. Yet, the general rule states otherwise:

[A]constitutionalprovision that courtsof justice shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury toperson, property, or reputation, is not intended as a limitation upon the legislative 

## - - - branch of the government where the leaislation

2 2 - - - involved deals with rightful subjects of legislation.16A Am. Jur. 2d Constitutional Law 

### 5 616, at 564 (2d ed. 1979) (emphasisadded); and see SaltLake City v. Utah ~ight
& Traction Co. (Utah 1918), 173 P. 556 (provision only applies to judicial questions, not meant to allow courts to usurp legislative power); Wagoner County Election Board v. Plunkett (Okla. 1956)

### , 305 P.2d 525 (provision provides mandate to judiciary, not intended as a limitation on legislative branch)


# . The interpretationofArticle 11, Section 16,called for by Meechwould prevent the legislatureand thepeople through the initiative process from restricting or modifying the

common law relative to injuries of person, property, or character. Only this Court's reasoning (good or bad), however,would restrict this Court

## 's own lawmaking function. Our decision to limit a cause of action would withstand the strict scrutiny mandated by Article 11, S 16; we would be applying the test. But a similar decision made by the legislature could be subject to much closer scrutiny. This Court would act as the ultimate authority in a vast, expanding,and ever changing fieldof lawgoverning important social and economic rights and duties. Itcould exclude the legislature from deciding: What are injuries to an individual's person, property, or reputation;whatwrongs are actionable; what remedies are available; and what redress will be given. The present appeal presents this separation ofpowers issue. Gates expanded the lawofwrongfuldischargeby defining

as an injury the breach of the implied covenantofgood faith and fair dealing. Similarly, Nicholson defined the same injury in the context of a leasehold dispute. Under White's and Pfost's interpretation of Article 11, 5 16, those recently recognized injuries would remain a part of our law despite a legislative mandate to the contrary. Any change insuch determinations could only be accomplished through constitutional amendment. We agree with Chief Justice Turnage's dissent in Pfost on this aspectof the issue:

There further can be no question that our courts are open to every person and speedyremedy afforded for every injury ofperson, 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 inArticle 111, Section 1,of the Montana Constitution. Pfost, 713P.2d at 514 (Turnage,C.J., dissenting).

E. Meech's Arauments Are Ina~~osite.

Meech has several contentions addressing the arguments supporting Hillhaven's position. First, Meech points out that in State ex rel. Montana Citizens for the Preservation of Citizens1 Rights 

### v. alterm mire (Mont. 1987), 738 P.2d 1255, 44 St.Rep. 913, this Court declared null and void the effect of a voter initiativepassed in 1986 amendingArticle 11, 16, to overrule White and Pfost. The amendment was held invalid because of an error in the voter information pamphlet. Montana Citizens, 738 P.2d at 1264. Meech asserts that the fundamental right to full legal redress remains in Montana law because the legislature passed theAct under the authority of the invalid amendment. This proposition depends on the continued vitality of White and Pfost. We are overruling White and Pfost and any decisions relying on White and Pfost to the extent that they hold Article 11, $ 16, guarantees a fundamental right to a particular cause of action, remedy, or redress.Meech further contends that the legislation at issue in Sheamust be distinguished from theAct. Meech asserts that in Shea, the modification of common law benefited workers, but here, according to Meech, the legislation only "creates employers' defensesand eliminatesmany employees' claims for recovery." We disagree that the Act must be distinguished from the legislation at issue in Shea for the purpose of 

# - testing its constitutionality under Article 11, § 16. Shea analyzed the trade-off in employees' and employers' interests

as a result of the passage of workers' compensation legislation, but the holding rested on an interpretation of Article 111, § 6, as only amandate to the courts to provide for the equal administration of justice. Shea, 179 P. at 502. Thus, Shea does not require this Court to analyze whether the Act provides an adequate trade for the loss of common-law wrongful termination claims. However, this Court's decision in Corrigan could be construed as placing this jurisdiction in with those that require an adequate substitute for legislative acts abrogating common-law remedies. See B. R. Burke, Constitutional Initiative 30: What ConstitutionalRights did -- Montanans Surrender 

### - in Hopes - of Securing Liability Insurance, 48Mont. L. Rev. 53, 66 (1987). Even ifMontana law required an adequate substitute for legal remedies abrogated by the legislature,as explained below,we disagree that no adequate remedy for common-law wrongful discharge exists under the Act. Therefore,we do not reach the issue. In conclusion, we answer, "No" to the first question submittedby the United States DistrictCourt. Article 11,S 16,does not render theAct unconstitutionalas depriving an individual, in this caseMeech,of a fundamental right to the common-lawactionshe alleges.11. THE ACT SURVIVES EQUAL PROTECTION SCRUTINY BECAUSE IT IS RATIONALLYRELATED TO A LEGITIMATE STATE INTEREST.

The second question certified from the United States District Court concerns the validity of the Act's specific: limitations on damages. The issue as framed is whether the Act's prohibition on the recovery of noneconomic damages and punitive damages violates Article 11, 

### 5 16. Our discussion in answer to this questionnecessarily extends to an analysis of the equal protection guarantee found in Article 11,5 4of theMontana Constitution. White and Pfost interpreted Article 11, S 16, as guaranteeing a fundamental right of full legal redress for "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, 661 P.2d at 1275. These decisions thenwent on tohold that the legislation at issue violated the equal protection guarantee because no compelling state interest justified denying the fundamental right found inArticle 11,S 16,to the class of claimants affected by the damages limitation at issue. Here, the question involving the Act's damages limitation is similar,andmore properly framed as:

Do the limitations on the recovery of certain damages in theAct violate equalprotection because the Act unconstitutionally burdens a class of claimants seeking damages for wrongful discharge? Selection of the proper equal protection test is our first task in determining this issue. As discussed in the previous section, no fundamental right to "full legal redress" exists underArticle 11,S 16. Meech alleges no other infringementof fundamental rights byoperation of the Act, and no suspect classifications are involved. The strict scrutiny test applies only where legislative classifications infringe on a fundamentalright, or where the legislature employs suspect classificationssuch

as race or national origin to define the benefited or burdened class. See J. E. Nowak, R. D. Rotunda, & J. N. Young, Constitutional Law Ch. 16, 5 I, at 596-98 (2d ed. 1983). Therefore, the strict scrutiny test does not apply. We also refuse to employmiddle tier scrutiny to analyze classifications created under the Act. The United States Supreme Court has employed the middle tier criterion in only a few situations which are not applicable here. See generally Butte Community Union 

### v. Lewis (1986), 219 Mont. 426, 432-33, 712 P.2d 1309, 1312. This Court's decisions have applied the test only where specific directives in the Montana Constitution protected interests in education and welfare. See Butte Community Union, 712 P.2d at 1314; Deaconess Medical Center of Billings Inc. v. Department of Social and Rehabilitation Services (Mont. 1986)

## , 720 P.2d 1165, 43 St.Rep. 1112; State ex rel. Bartmess v. Board of Trustees (Mont. 1986), 726 P.2d 801, 43 St.Rep. 1713. Our interpretation of Article 11, $ 16, as only a directive to the courts distinguishes the interestat issuehere from the interestsat stake in those cases. We determine that the proper level of scrutiny for the classifications createdby the Act's limitation on employers' liability is provided by the rationalbasis test. We further find that the Act's provisions on damages pass equal protection muster because the Act's disparate treatment of similar claims is rationally related to a legitimate state interest. Until recently, the fundamental body of law governing available damages in the employment area has been contractlaw. Courts, by virtue of their power to alter the common law, have expanded employers' liability by recognizing tort claims in the employment context. The legislature has now acted to reverse this trend by restricting damages for wrongful discharge. This decision to limit liability "emerges as a classic example of an economic regulation--a legislative effort to structure and accommodate 'the burdens and benefits of economic life.'" Duke Power Co. v. Carolina Environmental Study Group (1978), 438U.S. 59, 83, 98 S.Ct. 2620, 2636, 57 L.Ed.2d 595, 617-18. A statutory "limitation on recovery is a classic economic regulation,

# . . . [which] must be upheld if it is reasonably related to a valid legislativepurpose." Boyd v. Bulala (W.D.Va. 1986),647F. Supp. 781, 786 (finding heightened scrutiny inappropriate for reviewing liability-limitation under requirements of Virginia's remedyguarantee). The Court in Duke Power pointed out that use of the rational basis test harmonizes with the ru1.e that the legislaturemay alter the common law:

Our cases have clearly established that "[a] person has no property, novested interest,in any rule of the common law." [citation omitted]. The "Constitution does not forbid the creation of new rights,or the abolition of old ones recognizedby the common law, to attain a permissible state object," [citation omitted], despite the fact that "otherwise settled expectations" may be upset thereby.
Duke Power, 438 U.S. at 88,

### n. 32. The California Supreme Court also emphasized that where the legislature may alter the common law, the rational basis test applies to testing liability-limitations:[Olur past cases make clear that the Legislature retains broad control over themeasure, aswell as 

## the timing, of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that the Legislature may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest. Fein v. Permanente Medical Group (Cal. 19851, 695 P.2d 665, 680 (emphasis in original). This Court, too, in Reeves, recognized that the rationalbasis test applied to analyzing whether liability-limitations imposed through a special statute of limitations for architects and builders violated equalprotection:

The test of the constitutionality of class legislation is whether the classificationhas some reasonable, just and practical basis and whether the law operates equally upon every person within the class. [citationsomittedl A statute will not be stricken down upon constitutional grounds unless its violation of the fundamental law is clear and palpable, and the classification it makes is illusory and unreal. [citationomittedl Applying these tests, section 93-2619, R.C.M. 1947,does not violate equal protection of the laws.
Reeves, 551 P.2d at 652. We hold that these decisions provide the proper rule on which equal protection test applies to analyzing theAct. Initially, in applying the rational basis test, it is importantto note that

[i]t has long been the general rule of this Court that statutes carry a presumption of constitutionality. [citation omitted] Generally, "whenever there are differing possible interpretations of [a] statute, a constitutional interpretation is favored over one that is not."Brewer v. Ski Lift, Inc. (Mont. 1988), 762P.2d 226, 228, 45 St.Rep. 1769, 1772 (quoting Department of State Lands v. Pettibone (1985), 216 Mont. 361, 374, 702 P.2d 948, 956). Another rule pertaining to testing legislation under minimal scrutiny analysis mandates that this Court

must not be concerned with the expediency of the statute: "What a court may think as to the wisdom or expediency of the legislation is beside the question and does not go to the constitutionality of the statute. We must assume that the Legislaturewas in a position and had the power to pass upon the wisdom of the enactment, and in the absence of an affirmative showing that therewasno valid reason behind the classification, we are powerless todisturb it." McClanathan v. Smith (1980),186 Mont. 56, 66,606 P.2d 507, 513 (quotingStateex rel. Harnmond v. Hager (1972),160Mont. 391, 399, 503P.2d 52, 56). Moreover, in "applying the equal protection clause to social and economic legislation, great latitude is given to state legislatures in making classifications." McClanathan, 606P.2d at 513. The remedy provision in theAct, setoutbelow,arguably classifies wrongful. discharge claimants based on the magnitude ofharm:

Remedies. (1) If an employer has committed a wrongful discharge, the employee may be awarded lost wages and fringe benefits for a period not to exceed 4years from the date ofdischarge,together with interest thereon. Interimearnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amountawarded for lostwages. (2) The employee may recover punitive damages otherwise allowed by law if it is established by clear and convincing evidence that the employer engaged in actual fraud or actual malice in thedischarge of the employee in violation of 39-2-904(1). (3) There is no right under any legal theory to damages for wrongful discharge under this part for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in subsections (1)and (2).

Section 39-2-905, MCA. Claimants alleging only wage loss within a four year period, and only noneconomic damages, are not adversely affected by the Act's remedy provision. Claimants seeking damages extending beyond four years, or claimants suffering from noneconomic harm such as emotional distress, are foreclosed from pursuing their claims by the Act's remedy provision. Meech asserts that this difference in available remedies violates equal protection guarantees. In addition, Meech argues that the Act unconstitutionally limits the availabilityofpunitive damages. Thegeneral rule on the plenarypower of the legislature in determining the availability of punitive damages refutes Meech's argument that the Act unconstitutionally limits such damages:

There is no vested right to exemplary damages and the legislaturemay, at itswill, restrict or deny the allowance of such damages.
22

### Am. Jur. 2d Damages5 239,at 326 (2ded. 1965). See also White, 661 P.2d at 1276 (tort claimants have no constitutionalright to punitive damages). We hold that the Act's provision onpunitive damages is constitutional. We also hold that theAct's classification of claimsby available remedies passes equal protection muster. Again, these types of limitations are not new to law. Limitations

on recovery for wrongful death, for recovery against common carriers, and limits for damages on baggage claims areclassic examples of liability-limitations. As explained below, we conclude that that the Act rationally relates to promoting a legitimate state interest. The legislative history of the Act demonstrates that lawmakers perceived an unreasonable financial threat to Montana employers from large judgments in common-law wrongful discharge claims. Testimony in legislative hearings also indicated to legislators that large judgments in common-law wrongful discharge cases could discourage employers from locating their businesses in Montana. The Act's limitation on damages is intended to alleviate these threats. Therefore, the Act passes muster on this leg of the test because promoting the financial interests of businesses in the State or potentially in the State to improve economic conditions in Montana constitutes a legitimate state goal. Buckman v. Deaconess Hospital (Mont. 1986), 730 P.2d 380, 386, 43 St.Rep. 2216, 2223. We also conclude that the Act relates rationally to promoting Montana's economic interests. Some awards for common-law wrongful discharge have included wages which extend far into the claimant's employment future. See Stark

v. Circle K Corp. (Mont. 1988), 751 P.2d 162,45 St.Rep. 371. The effect of theAct's limitations on damages to fouryears lost wages rationally relates to reducing this potential liability. Moreover, the limit itself is not irrational or

so arbitrary that the classification it creates violates equal protection. As a matter of policy, the legislature determined that four years should be the maximum period for consideration of wage loss reasoning that claimants could generally be expected to find similar employment by the end of this period. The time period in any given claim is necessarily speculative. However, statistics before the legislature supported the conclusion that most wrongfuldischarge claimants with reasonable diligence will obtain other employment within the four year period. Therefore, judicial deference for the time period at issue is appropriate. See e.g., Duke Power, 438U.S. at 91. The same sort of analysis applies to theAct's limitations on damages for pain and suffering and emotional distress; the restriction on recovery rationally relates to the legislature's legitimate purpose of limiting employers' liability for wrongful discharge. Itcould be surmised too that this particular limitation relates rationally to another legitimate legislative aim, that is, it provides for greater certainty in defining an employer's duties by recalling a contract law limitation on damages for pain and suffering. See e.g., S 27-1-310,MCA. As a corollary to this purpose, a greater certainty of the rights of employees also exists under theAct as a result of the "good cause" requirement. For example, in computing contract damages according to the contemplationof theparties,recovery for

mental anguish is not, as a general rule,allowed.



# . . . the courts evidently believe that the mental suffering which accompaniesabreach of contract is too remote for compensation.
22Am. Jur. 2d Damages § 195 (2ded. 1965). Montana follows the general rule by prohibiting damages for emotional or mental distress inmost contract actions. Section 27-1-310, MCA

# . In contrast, the law generally permits a broader

measure ofdamages inpersonal injury actions:

There is no fixed rule or exact standard by which damages can be measured in personal injury cases. The law does not assume that a particular injury calls for a definite amount of compensation, for just compensation may vary widely in differentcases, even where the physical injury is the same, especially where the injury is permanent,orwhere pain and suffering are involved. When aplaintiff suffers pain, fright, or humiliation because of a tort,dollars are awarded as "compensation"but not as the equivalentofwhatwas suffered. Because of this lack of equivalence in amajor portion ofmany personal injury awards, precise rules of damages are impossibleto state.
22 Am. Jur. 2d Damages S 86 (2d ed. 1965) (emphasis in original). Montana also follows the general rule on damages forpersonal injury:

For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether - it could -- have been anticipated or not. -- Section 27-1-317,MCA (emphasisadded). The differences in calculating personal injury damages and contract damages points out a problem with the emergence of tort claims in the employment relationship. Tort claims for at-will employees compensate for these workers' inability to control the term of their employment. Gates, 638P.2d at 1066. Employers, however, are unable to plan for the extensive liabilitywhichmay arise fromdamages available in these claims. Testimony in legislative hearings indicated that this is a source of great discontent in the Montana business community. The Act's limitation on noneconomic damages applies long-standing contract law in an attempt to solve this problem by dictating a more objective measure of damages. Under the Act, employers benefit because their potential liability is made more certain. Meanwhile, employees' control over the manner in which they are discharged remains, in part, as a result of the Act's "goodemployees' cause" requirement. The Act, in making this trade, is inno sense irrational. Therefore,classifications in the Act satisfy the requirements of the rational basis test.Finally, we address the argument mentioned above that Shea requires the legislatureto provide adequate substitutes for causes ofaction abrogated by statute. The Court in Duke Power faced a similar contention based on the Due Process Clause of theUnited StatesConstitution:

TheDistrictCourtheld that the Price-AndersonAct contravened the Due Process Clause because 

### "[tlhe amountof recovery is notrationallyrelated to the potential losses"; because 

### "[tlhe Act tends to encourage irresponsibility inmatters of safetyand environmental protection 

# . . ."; and finally because 

### "[tlhere is no quid pro quo" for the liability limitations. 431 F. Supp. at 222-223.
Duke Power, 438 U.S. at 82. The Court inDuke Power resolved the argument for requiringaquid pro

### quoas follows: 

### -- Initially, it is not at all clear that the Due Process Clause in fact requires that a legislatively enacted compensation scheme either duplicate the recovery at common law or provide a reasonable substitute remedy. However, we need not resolve the question here since the Price-Anderson Act does, in our view, provide a reasonably just substitute for the common law or state lawremedies it replaces.
Duke Power,438 U.S. at 88. Here,too, thebenefits of the Act for employees are not illusory. Therefore,we need not reach the issue asposed by Meech because the Act provides a reasonably just substitute for the common-law causes it abrogates. In some situations the Act may benefit employees by eliminating common-law defenses formerly available. Forexample, in Prout v. Sears (Mont. 1989), 772 P.2d 288, 46 St.Rep. 257, a majority of this Court explained that under prior Montana law, an employer could defend a discharge suit by claiming that the employee was letgo for no cause:

At the same time we give effect to the employment application and record time card. These give the employer the right to firewithout cause. Prout, 772 P.2d at 292 (emphasis added)


# . Under the Act, the no-cause defense for discharging an employee who has worked beyond the probationary period is unavailable to most employers. Instead, employers may be subject to discharge only for good causedefined as:

"Good Cause" means reasonable job-related grounds for dismissal based on failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason. Section 39-2-903(5)

## , MCA. Similarly, the good-cause provision may provide greater protection for an employee whose employer has carefully avoided giving objective manifestations of continued employment, a requirement for maintaining a cause of action for violation of the covenant of good faith and fair dealing under the former law. Stark, 751 P.2d at 166. Imposition of a good-cause requirement in discharge may also provide greater employee protection in situations, as in Prout,where employers sought to disclaim in the employment contract any objective manifestations of continued employment. The Act's provision allowing claims for prejudgment interest also betters the prior common-law provisions for recovery. In addition to the amount awarded for lost wages, pensions, insurance benefits, and vacation time may be considered as fringe benefits under the statute. Section39-2-903(4), MCA. All fringe benefits which would have accrued during the four year period following the discharge

are available as damages under the Act. Therefore, the Act contemplates allowing some recovery for wrongful discharges which would otherwise deny retirement benefits, and more. To summarize,greater certainty in the law may alleviate problems experienced by both employers and employees. As explainedby one commentator:
[Tlheemployeeswho benefit [undercommon-law cause of action] are few and farbetween, first, because of the difficulties involved in staying the course of a lengthy and expensive judicial process, and second, because of limitations inherent in the legal doctrinesadopted by the courts. Gould, Stemming the Wrongful Discharge 

### - Tide: --- A Case for Arbitration, 13 Emp. Rel. L.J. 404, 413 (1988). Therefore, Meech's argument that the Act provides an inadequate trade for prior common-law actions fails to provide authority for finding the Act unconstitutional. In conclusion, Montana's remedy clause seeks to guarantee equal access to courts to obtain remedies for injuriesas provided by governing law. Itdoesnot,however, impart a definition of what the law considers a remedy or full legal redress. Nor does it empower this Court to exclude the legislature from defining what are legal injuries. Finally, we make clear here that the proper test to apply to the Act's classifications burdening one class and notanother, is the rationalbasis test. The classifications created under the Act at issue here survive scrutiny under this test, and even if Montana law required a quid 

### - pro 

### quo for the old causes of actions,theAct provid-esa reasonablesubstitute. Thus, we answer "No" to both questions posed by the United States District Court.

We Concur: /')'

'ChiefJustice 

# &if'&~M$& Justice

JusticesMr. JusticeJohn C. Sheehy,dissenting:

This is the blackest judicial day in the eleven years that Ihave sat on thisCourt. Indeed itmay be theblackest judicial day in the history of the state. Certainly this decision is more regressive than the ill-boded Ashcraft v. Montana Power Company (1971), 156 Mont. 368, 480 P.2d 812
case, which deprived injured workers of their full legal redress against third party tortfeasors. The decision today cleans the scalpel for the legislature to cut away unrestrainedly at the whole field of tort redress. Perhaps

worse by this decision today, the Court throws in the sponge

as a co-equal in our tripartite state government. I. For the reader to understand the drastic ramifications of the "Wrongful Discharge From EmploymentAct" the whole of the Act must be set out. The legislationpassed as Ch. 641, Laws of Montana (1987)

# . A full copy of the text is attached to this dissent as Exhibit A. The bracketed numbers thereon indicate the present number of the code sections of the Act

as they now appear in Montana Code Annotated. The contraction of what was once in this state the tort of wrongful discharge is found principally in three sections of the Act, Section 4 [§ 39-2-904, MCA], Section 5 [§ 39-2-905,MCA] and Section 8 [B 39-2-913,MCA]. Under Section 4of theAct [§ 39-2-904,MCA] grounds for wrongfuldischarge are limited to threepossibilities: (1) It was in retaliation for the employees refusal to violate public policy or for reportinga violation of public policy;

(2) The discharge was not for good cause and the employee had completed the employers probationary period of employment; [undertheAct, a probationerhas absolutely no right of recourse for a wrongful discharge] or

(3) The employer violated the express provisions of its ownwrittenpersonnelpolicy.
The attorneys in this case supporting the Wrongful Discharge From Employment Act filed briefs claiming that it provided great new rights for discharged workers. Not true. Each of the elements listed above was established by this Court in decisions heretofore made and each was fully available to wrongfully discharged. employees, including probationers. Thus, the first element was recognized in Kenneally 

### v. Orgain (1979),186 Mont. 1, 606 P.2d 127,where

we said:



# .. . It is only when a public policy is violated in connection with the wrongful discharge that the cause of action arises. Examples given by the courts are: refusal toperjure himself in the case of one employee; firing of another employee for asserting a right to obtain Workers' Compensation benefits to which he was statutorily entitled.;and refusal of sexualrelations. Id., 186Mont. at 6,606 P.2d at 129. 

### - As to the second element, where the discharge of the employee was not for good cause, we had protected the employee in cases before the adoption of this Act. In Ameline 

### v. Pack and Company (1971),127 Mont. 301, 45 P.2d 689, this Court found that the employer had not established good cause in the termination of an employee before the end of his one-year contract. Our recent cases of Proutv. Sears Roe Buck and Co., (No. 88-117, Mont. Decided February 16, 1989), 772 P.2d 288, 46 St.Rep. 257, and Hobbs v. Pacific ~ide and Fur (No. 84-437,Mont. ~ecided March 31, 1989), 771 P.2d 125, 46 St.Rep. 544, confirmed that a dischargemust be for good cause after the probationary period has elapsed.These and other cases relied on the implied covenant of good faithand fairdealing. The third element for which wrongful discharge is granted under theAct is if the employer violates the express provisions of its ownwrittenpersonnel policy. Here again, the legislature granted nothing that had not already been firmly established in our decisions. In Dare v. Montana Petroleum Marketing Company (1984), 212 Mont. 274, 687 P.2d 1015 (Weber,J.)

## , we held that even an employment handbook promulgated by the employer was not essential for a cause of action for abreach of the implied covenant of good faith and fair dealing stating that:



# . .

# . [A]n employee is protected from bad faith or unfair treatment by the employer to which the employee may be subject due to the inherent inequality of bargaining power present in many employment relationships..


# .

# . Id., 668P.2d at 1020, 212Mont. at 282. 

### - violation of the employer's handbook procedures for termination which gave rise to a wrongful discharge action

was firmly established in Gates v. ~ife ofMontana Insurance Company (1982), 196 Mont. 178, 638 P.2d 1063, and Gates v. Life of Montana InsuranceCompany (1983),205Mont. 304, 668 P.2d 213. We followed that rule in Stark v. Circle K Corporation (1988)

## , -Mont

# . - 

## , 751 P.2d 162; and Kerr v. Gibson's Products Company of Bozeman (19871, -Mont

# . I 733 P.2d 1292 (Turnage,J.; ~lanigan v. prudential savings and Loan ~ssociation(1986), 221 Mont. 419, 720 P.2d 257; Krenshawv. Bozeman Deaconess~ospital(1984),213Mont. 488, 693 P.2d 487; The elements ofwrongful discharge,as found in theAct, therefore, are but restatements of cases based on some judicial policy heretofore promulgated by this Court. While perforce, the legislature had to recognize at least thosethree elementsofwrongful discharge, it took care toprovide that

### - no significant amount

## ofdamages could 

### - be recovered

### by 

### - a wrongfully discharged employee even under those elements. A wronged employee's remedies are nearly emasculated under the Act. Section 5 of the Act [S 39-2-905, MCA] describes the recoverable remedies for a wrongfully discharged employee. He or she may recover no more than four years of lost wages and fringe benefits 

### --- from both of which are deducted amounts the employees earned or could have earned with reasonable diligence during thatperiod. Since Section 6 of the Act [S 39-2-911, MCA] limits suits to one year from the date of discharge, the employee's loss is wholly speculative. Section 5 of the Act completely wipes out any right of any discharged employee to damages for pain and suffering, emotional distress,compensatory damages or any other formof damages except the four years of mitigated lost wages and fringe benefits. These stricken elements of damages are traditionally allowed against tortfeasors, elements which we have supported in any number of cases, as proper items of recovery. Finally, to make certain that a wronged employee would have to take his or her lumps without a legal basis for proper recovery, the legislature adopted Section 8 [S 39-2-913, MCA] which states that no claim for discharge may arise from a tort or express or implied contract except as provided in theAct itself. The realpurpose of Section 8 is to negate by elimination any possible employee claim of tort based upon an implied covenant of good faithand fair dealing in the employment contract. Thisprovision takes Montana out of themainstream ofAmerican legal thought. Restatement (Second) of Contracts, 205, provides:Duty of good faith and fair dealing. 

### -- Every contract Imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.
The duty of "good faith" is incorporated in the Uniform Commercial Code [S 30-1-201(19); S 30-1-208,MCAI. A large and important body of oil and gas law is based upon implied covenants contained in oil and gas leases and other instruments. This Court has recognized that an implied covenant of good faith and fair dealing attends insurance policies. First security Bank of Bozeman v. Goddard (1979), 181 Mont. 407, 593 P.2d 1040; State ex rel. Larson v. ~istrict Court (1967),149Mont. 131, 136, 423 P.2d 598, 600. We have also found a remedy for the breach of the implied covenant in the employment cases noted above, in Dare v. Montana Petroleum Marketing Company (19841, 212 Mont. 274, 687P.2d 1015; in the attorney-client relationship, Morsen v. Espeland (1985), 

### -Mont

# . , 696 P.2d 428; and in the - dealings by banks with their customers, 

### ribb by v. Northwestern Bank of Great Falls (1985), -Mont. - 

## , 704 P.2d 409; First~ational Bank in ~ibby v. Twombly (1984),213 Mont. 66, 689 P.2d 1226. We found an implied covenant of good faith and fair dealing in realproperty lease agreements in ~icholson 

### v. United pacific Insurance Company (1985),

### - Mont

# . - 

## , 710 P.2d 1342. The implied element of "good faith" connotes a moral quality "honesty of person, freedom from fraudulent intent, and faithfulness to duty or obligation." Raab v. Casper

(1975), 124 Cal.Rptr. 590, 51 Cal.3d 866; Restatement (Second)of Contracts,S 205. The nature and extent of an implied covenant of good faith and fairdealing is measured in anyparticular contractby the justifiable expectations of the parties to the contract. Nicholson, supra. The approval by this Court in this case of the elimination by the legislature of the element of good faith and fair dealing in employment contracts has the effect of reversing all of the employment cases this Court has handed down in the last decade. The elimination has a profound effect on the recoveryofpunitive damages. Although theAct here in questionprovides [Section5(2)1 for punitive damages in case of actual fraud or actual malice on the part of the employer,unless an employee can show an implied covenant of good faith and fair dealing in his employment contract, he will find no basis upon which punitive damages canbe awarded to him. The legislature, in effect, has converted the tort of wrongful discharge into a sort of contract action by the adoption of the Wrongful 

### isc charge From EmploymentAct. The legislaturerefused,nonetheless,to provide all the elements of the damages allowable for breach of contract which ordinarily would compensate the party aggrieved for all of the detriment proximately caused by the breach and in the ordinary course of things likely to result therefrom. Section 27-1-311,MCA. In a recent case, the Supreme Court of Nevada in K-Mart Corporation v. Ponsock (Nev. 1987), 732 P.2d 1364, found the implied covenant of good faith and fair dealing in the employment contract, and stated that even contract damages were inadequate in this type of case. TheNevada Court said: In this case we have a contract in which the relationship with the parties is in many ways analogous to those present in an insurance contract. Ponsock was just as dependent in "specially relying" on K-Mart's commitment to his extended employment and subsequent retirement benefits as is an insurance policyholder dependenton the good faith indemnity promised by the insurance carrier. The special 

### relationships of trustbetween this employer and this employee under this contract under this kind of abusive and arbitrary dismissal cries out for relief and for a - remedy beyond that traditionally flowing from breach of contract. To permit only contract damagesas the sole remedy for this kind of conduct would be to render K-Mart totally unaccountable for these kinds of actions. If all a large corporate employer had to dowas to pay contractdamages for this kind of conduct, it would allow and even encourage dismissals of employees on the eve of retirement with virtual impunity. ~avingto pay only contract damages would offer little or no determent to the types of practice apparently engaged in by K-Mart In this case. Further, an aggrieved employee, relying on, and anxiously awaiting his retirementbenefits would not be made whole by an award of contract damages resulting from wrongful discharge, even if he were awarded the expected retirement benefit 

# . . . After involving itself in a relationship of trust and special reliance between itself and its employee and allowing the employee to rely and depend upon continued employment and retirement benefits, the company, to serve its own financial ends, wrongfully and inbad faithbreached the employment agreement. The jury specifically found this reliance and concluded that K-Mart was guilty of bad faith


# .

# . . (Emphasis in original.) Id.,732 P.2d at 1372. - It is evident that the Wrongful 

### isc charge From Employment Act adopted by the Montana legislature purporting to give a wronged employee some rights, instead, took away any possible right of meaningful recovery. The ominous implicationsof this Act for all employees not working under a union contract cannot be overstated. The longer the employee works for an employer, the greater reliance the employee places upon the employer's proffer of fringe benefits and retirement allowances, then the more the employee is at risk to be discharged, because the economicresult of a wrongful discharge to the employer, even if the employee's suit under the Act should be successful, is nothing but paltry damages to the employee and possible profit to the employer. The lack of legislative cloutof the unorganized workers, although theymay compriseamajority of the workers in this state, is demonstrated in that this patently unfair legislation in 1987 passed the State Senate without a no vote on third reading, and with but 16 no votes out of 100 in the State House of Representatives.

When lawcandono right

[Then] it be lawful that law can bar no wrong. -~illiamShakespeare, ~inqJohn (Magna ~arta's John)Act 111,Scene i.

Four centuries ago~illiam Shakespeare stated in capsule the view of the majority of this Court in upholding theAct. The majority view is that the legislature can abolish any right of recovery and when it does courts are barred from awarding "full legal redress"underArt. 11, Sec. 16,Montana State Constitution. Soholding, themajority airily overrule Pfost v. State (1986),219 Mont. 206, 713 P.2d 494;white v. State (1983), 203 Mont. 363, 661 P.2d 1272 and 

### orr rig an v. Janney (1981),

### -Mont

# . , 626 P.2d 838. We submit that - not only are these reversals overbroad, but they are clearly in error. First let us examine the overruled cases. Corrigan v. 

### - Janney, supra, involved an appeal from a summary judgment granted in the District Court against a plaintiff in a wrongful death case. Janneys had leased living quarters to the Corrigans,and the leased premiseswere defectively wired

so that Max Corrigan came in contact with the faucet on a bathtub and received an electrical shock which ultimately caused his death. The District Court, reading earlier casesof this Court,decided that therewas no causeof actionby a tenant against the landlord for such a defect and granted summary judgment. 

### his Courtheld (~arrison, J.) that there is in modern day usage a need for rental houses to be suitable for human occupation and that a cause of action for wrongful death in this case did exist. The Court cited Art. 11,Sec. 16 of the Constitutionandwent on to state: It would be patently unconstitutional to deny a tenant 

## all the causes of action for personal injuries or wrongful death arising out of the alleged negligent management of rental premises by a landlord. If this actionwere to be taken away, a substitute remedy would have to be provided. Arguably,the repair and deduct statuteprovides an alternative remedy for damage to the leasehold interest. However, in no way can it be considered an alternative remedy for damages caused by personal injury or a wrongful death. (Emphasis supplied.) Id., 626P.2d at 840. 

### - Justice Harrison then noted a controlling statute and went on to state: In summary,we overruleDierv. Mueller, supra,and hold that our Constitution requires that plaintiff have a form of redress for wrongful death and survivor damages. We hold that 

### 5 58-607 R.C.M. (1947), is controlling and that one is responsible for injury occasioned to another by want of ordinary care subject to the defenses and contributory negligence or assumption of risk. Id., 626 P.2d at 841. - Thus Corrigan held that S 58-607 provided a statutory basis for recovery in this wrongfuldeath case,and thatArt. 11, Sec. 16 constitutionallyguaranteed the right of redress in that case. Why the majority overrules that case isbeyond my conjecture. In White 

### - v. State, supra,Karlawhite sued the State of Montana alleging that the State was grossly negligent inpermitting an allegedly violent and dangerous person to escape from themental hospitalatWarm springsand to remain free for a period of 5 years without serious attempts to locate and reincarcerate the escaper. Karla was brutally attacked by this individual about 5 years after he had escaped from Warm springs. The legislature meanwhile had passed S 2-9-104, MCA, which provided that any governmental unit, including the State, was not liable for noneconomic damages, nor for any economic damages in excess of $300,000 for any one claimant. If this statute were upheld, Karla's right of recovery, premised upon severe emotional injuries which she received from the attack but insignificanteconomic damages,would be effectively wiped out. The District Court held that the statutory limitation on governmental liability for damages

was unconstitutionaland granted summary judgment in favor of Karla. The State appealed to this Court,which said: Article 11, Section 16 of the Montana Constitution guarantees that all persons shall have a "speedy remedy

# .. . for every injury of person, property, or character.

### " In Corrigan v. Janney (1981), Montana, 626 P.2d 838, this Court held that it is "patently unconstitutional" for the legislature to pass a statute which denies a certain class of Montana Citizens their causes of action for personal injury and wrongful death. We affirm and redefine our holding in Corrigan v. Janney, supra; we hold that the Montana Constitution guarantees that all persons have a speedy remedy for every injury. The language "every injury" embraces all recognized cornpensable components of injury including the right to be compensated forphyslcal

7- pain and mental angulsh and the loss of enjoyment 

### - 

### ---- of llvlng. 

## hes sf ore, strict scrutiny attaches. 

### - (Emphasissupplied.) Id., 661P.2d at 1275. - In white, this Court found no compelling state interest to classify tortfeasor victims on whether they had beeninjured by a nongovernment tortfeasor or by a government tortfeasor. The Court struck down a statute which allowed recovery to plaintiffs damaged economically up to $300,000, but totally denied recovery for noneconomic damages; and further, the statute classified victims of government tortfeasorsby the severity of the victim's injuries. It should be clear to all that 5 2-9-104, MCA, denied the equal protection of the law to white because the statute discriminated between tortfeasors injured by government agents or by private defendants; and as between persons injured by government tortfeasors, it discriminated on the basis of economic and noneconomic damages. Certainly this Court in white enforced the state constitutional mandate to courts that "Right and justice shall be administered without

# ...denial

# ..." Art. 11,Sec. 16. Before adverting to Pfost 

### 1. State, supra,we set out for the convenience of the reader the full text of Art. 11, Sec. 16,of the State Constitution: Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shallbe deprived of this full a redress for injury incurred in employment forwhich anotherpersonmay be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under Workmens' Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay. (Emphasisadded.)
Pfost - v. State involved aplaintiff who had been injured when his truck-tractor collidedwith a bridge on an extremely icy and hazardous highway. He alleged no precautions had been taken by the State to remedy the hazardous condition although three separate wrecks had occurred prior to Pfost's arrival. Pfost suffered injuries which eventuallymade him a quadriplegic. He sought compensatory damages of 6 milliondollars. In themeantime, the legislaturehad adopted a new statute regarding the liability of the State in tort cases, limiting any or all recovery to $300,000 for a singleperson. Section 2-9-107, MCA. Pfost's medical expenses alone exceeded that sum. The District Courtheld the statute tobe unconstitutional as a denial of equal protection and the State appealed. In Pfost,we followedWhite - v. State, supra, holding thatArt. 11, Sec. 16, 1972 ofMontana constitution, granted a fundamental right to access to courts for a full legal redressand on thebasis of equalprotection found that S 2-9-107, MCA, discriminated improperly between those with minor injuriesand thosewith catastrophic injuries resulting from the tort of a government agent. In passing on the language ofArt. 11,Sec. 16, supra, we stated: The use of the clause "this full legal redress"has major significance. Itobviously and grammatically refers to the "speedy remedy afforded for every injury of person, property, or character." The adjective "this"means the person, thing, or idea that is present or near in place, time, or thought or that has just been mentioned. Websters New Collegiate ~ictionary(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 toperson, property,or character therefore affects a fundamental right and the State must show a compelling state interest if it is to sustain the constitutionalvalidity of the statute. Pfost, 713 P.2d at 503. Themajority object to our grammatical interpretation in PfostofArt. 11,Sec. 16,as "flawed." Perhaps the majority have rules of grammar ofwhich thiswriter isunaware,butwe will leave it to the teachers of English that the clause "this full legal redress" refers in Art. 11, Sec. 16 to the "speedy remedy afforded for every injury of a person,property, or character." Grammatically, we insist that "speedy remedy" comprehended "full legalredress." Speaking in the vein of grammatical construction, the majority ask us to construe the term "full legal redress" in the second sentence of Art. 11, Sec. 16 as applying only to injured workmen who have claims against third parties for their injuries. Themajority contend that thepurpose of the inclusion of the second sentencewas only to protect injured workmen and had no effect on the remainder of Art. 11, Sec. 16. In this sense, the majority grammatically misconstrue the article. Under its plain language the right of "full legal redress" is not given only to Workers' Compensation claimants. Rather, the right of "full legal redress" is emphatically granted to Workers' Compensation claimants too. The framers intended to make certain that included in Art. 11, Sec. 16 was a specific provision which also extended the speedy remedy comprehending full legal redress to Workers' Compensation claimants who might have separate causes of action against third parties, not their employers or fellow employees. Ashcraft v. The Montana Power Company (1971)

## , 156 Mont. 368, 480 P.2d 812 was the reason for the insertion by the framers of the second sentence in Art. 11, Sec. 16, to make certain thatWorkers' Compensation claimantshad the rightof full legal redress,too. Ashcraftwas a laborerworking for

a construction company which as an independent contractorwas performing work on the job for the general employer,Montana Power Company. Ashcraft was injured through the alleged negligence of the Montana Power Company. He recovered Workers' Compensation benefits through his employer, and sought to sue Montana Power Company as a third party tortfeasor. This Court held that Ashcraft had no cause of action for his injuries against the third party tortfeasor,Montana Power Company. Ashcraft and several cases of its progeny following, were at the forefront when Art. 11, Sec. 16was considered by the constitutional framers in 1972. The second sentenceofArt. 11,Sec. 16was inserted specifically to overruleAshcraft. When the provisions ofArt. 11, Sec. 16 came before the Constitutional convention for eventual adoption, Delegate Habedank, as indicated in the majority opinion,made amotion to strike the second sentenceof the section upon the grounds that the sentencewasmerely legislative,and its subjectwas better left to the legislature. Delegate Habedank's amendment to delete the second sentence was defeated in the convention,but before the amendmentwas submitted to a vote, DelegateHabedankmade a commentthat is interesting in light of this case: DELEGATE HABEDANK: Yes, Mr. president [Chairman] you have had the matter very fairly presented to

- - you by Mr. Dahood. As I told you in the first place, Idonotparticularly oppose thisparticular amendment, but Ihave been told thatwe lawyersare writing the Constitution, trying to slip matters into this Constitution for our own personal gain. Youhave had thepro of the con given toyou. This is somethinq that can't be corrected by the legislature.- You have it in your power to be the 

### ---- --- supreme Legislature,as the 

### committeehas requested you to do. I leave it toyou,but I do think that when you do it, you should do it knowingwhat you do and not accuse the lawyers of pulling the wool overyour eyes. (Emphasissupplied.) verbatim

### h ran script,page 1758. Even more interesting in connection with the Constitutional Convention is that the author of themajority opinion here, a respected member of the Constitutional Convention, stood and opposed Delegate Habedank's motion to delete the second sentence ofArt. 11, Sec. 16. He stated:DELEGATE McDONOUGH: Mr. Chairman, I also support the committee's proposal. In Eastern Montana there's a lot of accidents in the oil field, and practically all the work is subcontracted out or contracted out, and we never dreamed--and Mr. Habedank, I am sure, admits himself he never dreamed, because he's defended these law suits--that the Supreme Court would rule in this manner. And I support the committee proposal because it just--it was a very bad law and it shouldbe restored. verbatim

### rans script, pages 1757,1758. There is an inconsistency between the statements of Delegate McDonough in support of Art. 11, Sec. 16, and the his statements as the author of the majority opinion as expressed today. If, as he now espouses, Art. 11, Sec. 16 gives only a right of access to the courts,but not to a full legalredress,the legislaturecouldmake the second sentence of Art. 11, Sec. 16, meaningless by simply abolishing the remedies available to third party plaintiffs as they have abolished the tort remedies of the employees in this case. Such a view was unexpressed by any delegate to the Convention. In the light of his opinion today, the commendableefforts ofDelegate McDonough to supportArt. 11, Sec. 16 were not worth the candle. The injured workman now has no more guaranty of a legislature allowing full legal redress than the merest employee relying on implied covenants. The fundamental right to remedy was expressed to the Constitutional Convention by the chairman of the sill of Rights Committee, supporting Art. 11, Sec. 18 (governmental immunity) whenhe said: We submit it's an inalienable 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. (Emphasisadded.)(SeeNo11 andKenneady v. Bozeman (1975),166Mont. 504, 507, 534 P.2d 880, 882)

# . The Jeffersonian word "inalienable"

means incapable of being surrendered or transferred.

[Webster's New Collegiate~ictionary(198l)l. Now letus stateexactly what Corrigan,white,and Pfost stood for. ~orriqan established that when a cause of action is grounded on statute the right of a plaintiff to a full legal redress under that statutewas fundamental. White and Pfost established that when a statute discriminated invidiouslybetween injuredplaintiffs,the courtsunderArt. 11, Sec. 16 would apply exacting scrutiny to determine the necessity, if any, for the discrimination. Those results were commandedby the language ofArt. 11, Sec. 16. A major premise of the majority opinion is thatArt. 11, Sec. 16 is addressed to the courts, and because the section is not addressed to the legislature,the legislature is free to act without restraint except for aminimal rational test. That concept ignores the last sentence of Art. 11, Sec. 16, which tells the courts that "right and justice shall be administered withoutdenial.'' The courts must consider first the right and then justice,and neither must be denied. A full legal remedy, state the majority, is not a fundamental right; and so bring themselves to deny the

essence of a fundamental right. The right of a citizen to claim justice from his state, is, we should agree, a fundamental right; else the right of petition for redress fromgrievances ismeaningless. Stateprotection of citizens from injustice,

### - a fortiori, isalso a fundamental right; else the rightofpetition is toothless. A legal remedy that delivers only 25% justice automatically also delivers 75% injustice. Assuming a wrong-doing employer, a legal remedy that delivers to the long-term employee only four working years of justicedelivers also thebalance of aworking lifetimeof injustice. For justice is not divisible. Either the result is just or it is unjust, just as a single fact is true or else it is untrue. There is no middle to justice, for injustice takes up where partial justice ends. In defining justice,we do not mess with Mr. In-Between. As surely as there are fundamental rights, there are surely no fundamental half-rights. The right of access to courts is only part of the fundamental right; the right to a full legal remedy completes the part to make a whole. The two, access to the courts and full redress, indivisibly make one fundamental right, and together they are the essence of justice. They must coexist to complete the fundamental right to justice. The least plausible argument of the majority in this

case is that the legislaturehas thepower to limit remedies, and that this Court may not interfere if the legislature so acts. If this were true in all cases, the public in this state would have no protection from free-wheeling legislatures. Fortunately, if the Court does its job, our state constitutional system is designed to contain legislativeactionwithin constitutional limits. Thatdesign requires the state courts to rein in a rampant legislature. 

### specially must an appellate court (in Montana the only appellate court is this Court) be watchful to safeguard the rights of thepublic in state constitutionaldisputes. Our appellate jurisdiction has a two-fold purpose: First,we assure state litigants that the decision makers at the first level, the district courts, will make correct decisions, not in isolation, but with the connected support of the state legal system. The review for correctness reinforces the dignity and acceptability of the trial court's decisions,and controls any adverse effects of shortcomings at the first level. The second purpose of thisappellate court is equally important. Our institutional review of the workings of trial courts serves to announce, clarify and harmonize the rules of decision and the application of laws in the state legal system. Necessarily, institutional review is both creative and political; to say that legislatures,and not courts, make law ignores the facts of appellate life. The final arbiterofwhat the state law inMontana shall be is this Court, under Art. 11, Sec. 16, not the legislature. We are given that power, tobe used judicially. The Justices in themajority do not seem to realize it,but in approving without objection or by inaction the Wrongful Discharge From Employment Act of 1987, they are making law. They have blessed what should be repugnant to a court--a savage curtailment of redress for wrongs, and they excuse their inaction by ceding overall power to the legislature. Though the State Constitution requires courts of justice (not the legislature) to afford a speedy remedy for every injury of person, of property, or of character, the majority have taken a detour from the road to remedy. They have declined to insist on not only a speedy remedy, but on full legal redress for wrongfully discharged employees. They have made law by being passive, and deserve no praise. A toothless court, when abstaining from itsduty, ismaking lawand is as great a threat to a just government as an unrestrained legislature. This is not to say that this Court sits as a super legislature, governing by its discretion the policy,wisdom, and direction of legislative acts. When, however, the legislature acts invidiously to discriminate between persons similarly situated, as will be demonstrated below, Art. 11, Sec. 16 imposes a duty upon this Court to make certain that right and justiceare not denied.111. Having determined thatMeech has no fundamental right to

a full legal redress here, the majority sustain the equal protection implications of the Wrongful Discharge From Employment Act by applying the rational test. This leads the majority to the irrational result that it isrationaltomake the state safe forunscrupulousemployers. The legislature made no findings to accompany the Act, nor does the Act itself articulate its purpose. The statements by the majority as to the purpose of the Act are extrapolated fromwritten statements of proponents submitted to the committees considering the Act, and not the whole legislature. At its core, the Wrongful 

### l is charge From Employment Act is nothing more than a cap on recoverable damages available to wronged employees. In that sense,the type of lawwe are looking at here is no different than the types presented to us in White and Pfost,supra. To begin with, the at-will statute which formerly governed employee relationships in Montana is not really repealed in the Act. The same language as existed in S 39-2-504, MCA, is included in S 2 of the Act. At-will employees still exist inMontana. We should also put out of theway any argument that the Act discriminates with respect to punitive damages to the extent that they are allowed under the Act. The test of punitive damages in 5(2) of theAct is the same test faced by any plaintiff claiming punitive damages under S 27-1-221, MCA

# .The Wrongful Discharge From Employment Act cannot be sustained as an equal protection under the rational basis
test because it discriminates adversely between personssimilarly situated and it discriminatesvertically as well as horizontally. Equalprotectionpermits reasonable classifications only if those similarly situated in relevant respects are treated similarly. An Act is excessively underinclusive if it excludespersons who are similarly situated. The majority opinion does not begin to state the number of ways in which employees similarly situated are discriminated against under the Wrongful Discharge From EmploymentAct. Horizontally,the discriminations include at least these: 1. A union worker is not affected by the Act; only non-union workers are covered. Thus a union worker who is discharged for "whistle blowing1' has larger rights of recovery than a non-union worker discharged for the same

reason. 2. Workers whose discharge is the resultof aviolation of the Human ~ights Act, the Equal Employment Opportunity Act, the Pension Reform Act of 1974 (ERISA), the Pregnancy Disability Act and any number of other state or federal acts are not covered under the Wrongful

### isc charge From Employment Act. Such employees' full rights of recovery are not taken away under this Act (see for example, ~rinkwalter v. shipton Supply Company, Inc. (1987

## , -Mont. 

## , 732 P.2d 1335; 

### - Breese v. Steel Mountain ~nterprises,Inc. (1986)

## , 220 Mont. 454, 716 P.2d 214;and Strong

### v. State (19791,183Mont. 410, 600P.2d 191. 3. TheAct discriminates against long term employeesby severely limiting their damages which might be large in magnitude. See ~laniganv. prudential Federal savings and Loan (1986),221Mont. 419, 720 P.2d 257. 4. A worker onprobation is entirely precluded fromany action forwrongfuldischarge.In addition, the Act is vertically discriminatory in that it imposes upon wrongfully discharged employees the burden of subsidizing a better business climate for wrongdoing employers. It is not a legitimate state purpose to protect employers from their unscrupulous acts as against the traditional rights of individuals to earn their livelihood. Our state constitution includes among inalienable rights "pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawfulways. In enjoying these rights, all persons recognize corresponding responsibilities." Art. 11, § 3,1972Mont. Const. Thus,no case canbe made on a rationalbasis to sustain

a law theprincipal purpose of which is to subsidize,protect or enhance the actsofwrongdoers. Because of its manifest discrimination, because it serves no legitimate state purpose, and because it cannot survive a proper balancing test as between the rights of employers and of individuals to pursue life's basic necessities, the Wrongful Discharge From Employment Act of 1987 violates the Equal protection Clause of the 1972Montana Constitution,Art. 11,S 4. As stated in Richardson

### v. ~arnegie ~ibrary Restaurant, Inc. (NM1988), 763 P.2d 1153: We commence our examination by repeating that the court of appeals erred in its equal protection analysis of the damage limitation. A legislative classification not only must affect equally a11 persons within the class to which the legislation applies but, to begin with, the legislature must have a legitimate purpose for creating the class, and a constitutionally permissible reason for treatingpersons within that classdifferently from thosewithout. SeeMcLaughlinv. ~lorida, 379 U.S.Id., 763 P.2d at 1164. - IV. Generally, when a legislative act is invalid because of

a discrimination, the act also violates other provisions of the state constitution. That is true in this case. The majority dismisses without proper discussion the due process implications of the Wrongful Discharge From Employment Act. It is usually a due process argument that an Act which limits the rightsof recoveryof injured partiesmustprovide

a reasonably adequate substitute, or quid pro ~uo, - as the majority calls it. The majority, having adopted the irrational conclusion that the Wrongful Discharge From Employment Act was valid, is driven to a further irrationality in determining that the substitution of mitigated recovery provided to wronged employees in the Act

was adequate. Not unlike Polonious in Hamlet, themajority

can find in a cloud a camel's shape,aweasel's, orvery like

awhale. In determining the adequacy of the substituted recovery in the Act, the majority confined itself to examination of the mitigated fouryears of damages as againstwhatmight be recovered for loss of wages or fringebenefits. Themajority paid no attention in determining adequacy to the elimination of compensatory damages, damages for emotional or mental distress, and damages arising from the breach of the implied covenant of good faith and fair dealing. By so examining, the majority managed to escape the best indication of the inadequacyof the recoverable damages in theAct demonstrated by the cases that have come to this Court. The results in such cases as ~laniqan,supra, Stronq 

### - v. 

### - State, supra, and Stark v. The circle K Corporation (1988), 751P.2d 162, showthe injury done by the Act to plaintiffs through the elimination of common law tort remedies. TheAct simplydoes not survivean adequacy test whenproperly admeasured against the former law inMontana. Other constitutionalprovisions probably affected by the majority decision but not referred toby themajority opinion and thusnotpertinent to this dissent are the right to trial by jury, and the privilege and immunity clauses of the state constitution. Art. 11, S 26; Art. 11, S 31, 1972 Mont. Const. Oregon looks to Art. I, S 20 of its constitutional privileges and ~rnmunities Clause rather than to equal protection tests to determine the validity of a statute. There the court inquires into whether the challenged statute affects a "privilege or immunityw--thatis, "someadvantage" towhich aperson "wouldbe entitled but for a choice made by government authority." Salemv. Bruner (Ore.1985), 702P.2d 70, 74. In a recent case inwashington, sophiev. 

### ireb board corporation (Wash. 1989), 771 P.2d 711, the Supreme Court of that state found, because of the language in washington's Tort Reform Act, a violation of the state constitutional provision of the right to trial by jury. Arguments with respect to similar clauses in our state constitutioncould be made in this case,but were not raised in briefs nor decided by the majority. They are therefore open to future discussions. 

### v. If Art. 11, 16 of the Montana Constitution does anything,it imposesupon the judiciary the duty to guard the state constitution. In its decision today, this Court sidesteps that duty and reversesnot only the casesmentioned in themajority opinion but a long line of cases in the past 15years that have established solid boundaries for employers and employees, while adhering to the at-will principledeclared in our statutes. In yielding our duty to the vagaries of the legislature, we have disadvantaged a large portion of the Montana labor market in the guise of a better business climate. TheWrongful Discharge FromEmploymentAct of 1987 is economically and socially regressive. The majority opinion is legally regressive. Because of the unwillingness of the majority to act properly in a constitutional case, regressiveness is the order of the day. Iwould hold the Wrongfulisc charge From Employment Act of 1987 to be invalid on the basis that under an equal protection test it cannot meet even a rational scrutiny. The only basis for the Act that I can find is that as between business and the workers, the legislature discriminatingly prefers business. That is not a constitutional basis on which to found a statute.

' -\

i

# .,'

I concur in the dissent of Mr. Justice John C. Sheehy. /EXHIBITA

CHAPTERNO. 641 AN ACT PROVIDING A PROCEDURE AND REMEDIES FOR WRONGFUL DISCHARGE; AUTHORIZING ARBITRATION AS AN ALTERNATIVE; ELIMINATING COMMON-LAW REMEDIES; REPEALING SECTIONS 39-2-504 AND 39-2-505,MCA; AND PROVIDINGAN APPLICABILITY CLAUSE AND AN EFFECTIVE DATE.

Be in enacted by the ~egislatureof the State of Montana: section 1. Short title. [Sections1 through 91 may be cited as the "Wrongful 

### isc charge From EmploymentAct". [539-2-9011 Section 2. Purpose. [Sections 1 through 91 set forth certain rights and remedieswith respect to wrongful discharge. Except as limited in

[sections 1 through 91, employment having no specified term may be terminated at the will of either the employer or the employee on notice to the other for any reason considered sufficient by the terminating party. Except as provided in

[section 71, [sections 1 through 91 provide the exclusive remedy for a wrongful discharge from employment. [S39-2-9021 Section 3. ~efinitions. In [sections 1 through 91,the following definitions apply: (1) "Constructive discharge" means the voluntary termination of employment by an employee because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative. Constructive discharge does not mean voluntary termination because of an employer's refusal to promote the employee or improve wages, responsibilities,or other terms and conditions of employment. (2) 

### isch charge" includes a constructive discharge as defined in subsection (1) and any other termination of employment, includingresignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimatebusiness reason. (3) "Employee" means a person who works for another for hire. The term does not include a personwho is an independent contractor. (4) "~ringe benefits" means the value of any employer-paid vacation leave, sick leave, medical insurance plan, disability insurance plan, life insurance plan, and pension benefit plan in force on the date of the termination. (5) "Good cause" means reasonable, job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimatebusiness reason. (6) "Lost wages" means the gross amount of wages that would have been reported to the internal revenue service as gross income on Form W-2 and includes additional compensation deferred at the option of the employee. (7) "Public policy" means a policy in effect at the time of the discharge concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule. [§ 39-2-903(1) 

### -(7), inc.

## I
Section 4. Elements of wrongful discharge. A discharge iswrongful only?£: (1) it was in retaliation for the employee's refusal to violatepublic policy or for reporting a violation ofpublic policy; (2) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or (3) the employer violated the express provisions of its ownwritten personnel policy. [§ 39-2-9041section 5. ~emedies. (1) Ifan employerhas committed a wrongful discharge,the employee may be awarded lostwages and fringebenefits for aperiod not to exceed 

### 4 years from the date of discharge, together with interest thereon. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages. (2) The employeemay recoverpunitive damages otherwise allowed by law if it is established by clear and convincing evidence that the employer engaged in actual fraud or actual malice in the discharge of the employee in violation of [S

### 4(1) 

### I.
(3) There is no right under any legal theory to damages forwrongfuldischarge under [sections1 through 91 for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in subsections (1)and (2). [S39-2-9051 Section 6. Limitation of actions. (1) An action under [sections 1 throuqh 91 must be filed within 1 yearafter the date of-discharge.

(2) If an employer maintains written internal procedures, other than those specified in [section71

## ,under which an employee may appeal a discharge within the organization structure of the employer, the employee shall first exhaust those procedures prior to filing an action under [sections 1 through 91

# . The employee's failure to initiate or exhaust available internal procedures is a defense to an action brought under [sections 1 through 9!



## . If the employer's internal procedures are not completed within 90 days from the date the employee initiates the internal procedures, the employee may file an action under [sections 1 through 91 for purposes of this subsection the employer's internal procedures are considered exhausted. The limitation period in subsection (1) is tolled until the procedures are exhausted. In no case may the provisions ofthe employer's internal procedures extend the limitation period in subsection (1)more than 120days.

(3) If the employer maintains written internal procedures under which an employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days of the date of the discharge notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of them. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (2) [S39-2-9111

Section 7. Exemptions. [sections 1 through 9 do not apply to a discharge:

(1) that is subject to any other state or federal statute that provides a procedure or remedy for contesting the dispute. Such statutes include those that prohibit discharge for filing complaints, charges, or claims with administrative bodies or that prohibit unlawful discrimination based on race, national origin, sex, age, handicap, creed, religion, political belief, color, marital status,and other similargrounds.

(2) of an employee covered by a written collective bargaining agreement or a written contract of employment for

a specific term. [§ 39-2-9121

section 8. preemption of common-law remedies. Except - asprovided in [sections1 through 91,no claim fordischarge may arise from tort or express or implied contract [B 39-2-9131Section 9. Arbitration. (1) Under awritten agreement of theparties,adispute that otherwisecould be adjudicated under [sections 1 through 91 may be resolved by final and binding arbitration asprovided in this section.

(2) An offer to arbitrate must be in writing and contain the following provisions:

(a) A neutral arbitrator must be selected by mutual agreement or, in the absence of agreement, as provided in 27-5-211.

(b) The arbitration must be governed by the Uniform Arbitration Act, Title 27,chapter 5. If there is a conflict between the uniform ~rbitration Act and [sections 1 through 91

## , [sections1 through 91 apply.

(c) The arbitrator is bound by [sections1 through 91

# .

(3) If a complaint is filed under [sections 1 through 91, the offer to artibratemust be made within 60days after service of the complaint and must be accepted in writing within 30days after the date the offer ismade.

(4) A party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under [sections1 through 91 is entitled as an element of costs to reasonable attorney fees incurred subsequent to the date of the offer.

(5) A discharged employee who makes a valid offer to arbitrate that is accepted by the employer and who prevailsin such arbitration is entitled to have the arbitrator's fee and all costsof arbitrationpaid by the employer.

(6) If avalid offer to arbitrate ismade and accepted, arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue

a lawsuit under [sections 1 through 81. The arbitrator's award is final and binding, subject to review of the arbitrator's decision under the provisions of the Uniform ArbitrationAct. [S39-2-9141

Section 10. Repealed. sections 39-2-504 and 39-2-505, MCA, are repealed.

Section 11. Severability. If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid in

one or more of its applications, the part remains in effect in allvalid applications that are severable from the invalid applications.

Section 12. Applicability. This act applies to claims arising after the effectivedate of this act.

Section 13. Effectivedate. This act is effective July 1, 1987.

Approved May 11, 1987.Mr. Justice JohnConway Harrison,dissenting.

While Iagreewith much that is saidby themajority in this opinion, the totality of this opinion in reversing so many cases this Courthas previouslydecided,necessitates my filing this dissent. I cannot concur with all that has been said in the dissent of Mr. Justice John C. Sheehy, yet I find I must agree with Justice Sheehy regarding Corrigan

### v. Janey (Mont. 1981), 626 P.2d 838, 38 St.Rep. 545. I feel that it is totally unnecessary to reverse Corrigan which established that when a cause of action is grounded on statute the plaintiff has a fundamentalright to full-legal redressunder that statute.