No. 88-410 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

RUSSELL E. MEECH, 

Plaintiff, 

-vsHILLHAVEN WEST, 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, Schnitzler and Krupman; 

Joel P. Kelly argued, and Elizabeth Platte Johnson on 

the brief, Los Angeles, California 

For Amicus Curiae: 

Church, Harris, Johnson & Williams; Cresap S. McCracken, 

Great Falls, Montana 

Patrick W. Shea; Paul, Hastings, Janofsky & Walker, 

Washington, D.C. 

JUN 2 3 1989 Filedzd sa;l#4 CLERK OF SUPRElblE COURT 

STATE OF MONTCZI" 

Submitted: April 11, 1989 

De2ided: June 29, 1989 

1 

' '' Clerk 
Mr. 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 to wrongfully 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 

punitive damages, violative of an individual's right to "full 

legal redress" within the meaning of Article 11, 5 16 of the 

Montana Constitution? 

We answer "No" to both questions. 

Petitioner Meech's action in the United States District 

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 

allegedly oppressive, malicious, and unjustifiable conduct on 

the part of Meech's former employer, respondent Hillhaven. 

The claims grew from the alleged wrongful discharge of Meech 

by Hillhaven. Hillhaven moved 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. Certification of the questions 
presented 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: 

Preemption of common-law remedies: 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, the Act exempts from its provisions, 

discriminatory discharges, and actions for wrongful discharge 

from employment covered by written collective bargaining 

agreements or controlled by a written contract for a specific 

term. For other wrongful discharge claims, however, the Act 

provides the exclusive procedure. Sections 39-2-912 to -913, 

MCA. The Act repeals Montana statutes which formerly granted 

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 in 
retaliation 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 than good cause as defined in the Act. The Act 

limits the time for bringing 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 "pain and 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 a period 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 employment disputes. 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 the Montana 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 Corrigan v. Janey (Mont. 1981), 626 P.2d 
838, 38 St.Rep. 545; White v. State (1983), 203 Mont. 363, 

661 P.2d 1272; Pfost v. 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 

causes of action to promote a legitimate state interest. See 

Shea v. North Butte Mining Co. (1919), 55 Mont. 522, 179 P. 

499; Stewart v. Standard Publishing Co. (1936), 102 Mont. 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 that Article 

11, § 16 of the Montana Constitution guarantees a fundamental 

right to full legal redress. 

I. 

THE ACT DOES NOT VIOLATE 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 does not create a fundamental right 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 interpretation of Article 11, § 

16, as only a mandate to the courts. 

C. It also follows from the words of the original 

guarantee, and the meaning intended for the 1972 amendment to 

the original guarantee, that Article 11, S 16, does not 
guarantee a fundamental right to a particular cause of 

action, remedy, or redress. 

D. Judicial creation of such a fundamental right in this 

context would also violate the elemental principle of 

separation of powers. 

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 " 'very useful key to the construction [of] a 

constitutional guarantee is to inquire what was the evil to 

be removed, and what remedy did the new instrument propose; . . . 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 administered without sale, denial, 

or delay. 

The principal cases Hillhaven relies on, Shea, Stewart, and 

Reeves, concluded that Article 111, 5 6 of the 1889 
Constitution did not constrict legislative powers 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 subject matter 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 cognizable according to applicable law). 

Legal history demonstrates that Shea and Stewart reached 

the correct conclusion. Article 111, S 6, was not placed 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 in Article 111, B 6, to Chapter 40 of 

the Magna Carta. Stephens v. Nacey (1913), 47 Mont. 479, 

482-83, 133 P. 361, 362. The Magna 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 language of the first part of Article 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 take his remedy by the course of the 

Law, and have justice and right for the injury done 

him, freely without sale, fully without any denial, 

and speedily without delay." 

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 in many 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 every wrong and for 

every injury to person, 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 Guarantees of a Certain Remedy, 49 Iowa 

L. Rev. 1202, 1202-03 (1964). 

Coke's interpretation of the Magna Carta is, in a broad 

sense, faithful to its origins. The English feudal nobility 

sought through Chapter 40 to eliminate abuses in the writ 
system 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 generally W. 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 embodiment of a greater constitutional 

principle: 

It is evident that the Magna Carta did not put down 

the practice of charging heavy fees for writs. 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 has become in the hands of patriots 

in many ages a powerful weapon in the cause of 

constitutional freedom. 

W. McKechnie, The Magna Carta: A Commentary on the Great 

Charter of King John 397-98 (2d ed. 1914). 

The recognition of the historical meaning of guarantees 

derived from Chapter 40 as mandating that the courts provide 

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. ~ountain States 

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 interpretation of 

the guarantees in remedy clauses as 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 the machinery of the law 

in motion to recover for harm already done to one 

-- of the stated kinds of interest, a guarantee that 

dates by way of the original state constitutions of 

1776 back to King John's promise in Magna Charta 

chapter 40: . . . It is concerned with securing a 

remedy from those who administer the law, through 

courts or otherwise. 

Davidson, 574 P.2d at 625-26 (Linde J., concurring) (emphasis 

added) . Put another 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 

interfere with the administration of justice. 

Schuman, Oregon's Remedy Guarantee, 65 Or. L. Rev. 35, 67 

(1986) (emphasis in 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 the qovernment. It means ----- no-more nor less than 

that, under the provzions -- of the Constitution and 

laws constituting them, the courts must be 

accessible to - all- 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 a mandate aimed exclusively at the courts, does 

not constrict legislative powers. 

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 

administration of 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 fundamental right 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. No One Has a Vested Right to a Rule of Common Law. 

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 authority of state legislatures is that: 

[Tlhe people, 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 also that 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 causes of action. The legislative action may not, 

however, infringe on constitutional rights. We have 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 is whether 

the legislature may alter or abrogate causes of action 

sounding in tort. 

A tort may be defined as: 

[A] civil wrong, other than breach of contract, for 

which the court will provide a remedy in the form 

of an action for damages. This, of course, says 

nothing more than that a tort is one kind of legal 

wrong, for which the law will give a particular 

redress. . . . 

When it becomes clear that the plaintiff's 

interests are entitled to legal protection against 

the conduct of the defendant, the mere fact that 

the claim is novel will not of itself operate as a 

bar to the remedy. 

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 will recognize 

as "harm" to another, or as "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, for which the law will give 

no remedy, although the defendant has been clearly 

at fault. . . . It is legal justification which 
must be looked to: the law will hold the defendant 

responsible for what the law regards as 

unjustified---and so stated, the broad rule [remedy 

for every wrong] means little, or nothing. 

W. L. Prosser, W. P. Keeton, Prosser and Keeton on Torts 5 1, 

at 2-4 (5th ed. 1984) (emphasis in original). Prosser also 

explains: 

Tort law is overwhelmingly common law, developed in 

case-by-case decisionmaking by courts. It is also 

influenced by 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, Prosser and Keeton on Torts 5 1, 

at 19 (5th ed. 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 

legislation altering 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 the United States or the constitution or laws of 

this state, is the rule of decision in all the 

courts of this state. (Emphasis added.) 
Similarly, Montana law provides that there "is no 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 to promote 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, or damages obtainable in various causes of 

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 examples undoubtedly 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 statutes that take away causes 

of action and/or constrict liability. The following are 

examples: abolition of a cause of action for alienation of 

affection (S 27-1-601, MCA), abolition of a cause for breach 
of promise to marry (S 27-1-602, 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 (S 27-1-716, MCA), liability limitations for 

agents and volunteers of nonprofit 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 parties who 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 

individuals making recreational use of surface waters flowing 

over or through the landowner's property. 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 statutes constrain liability and 

limit remedies and redress available 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 dealing 
arising from obligations in a lease justified an award of 

punitive damages. Nicholson v. United Pacific Insurance Co. 

(1985), 219 Mont. 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 evidence of emotional harm to a shareholder where 

the tort was committed against the shareholder's corporation. 

Moats Trucking Co. v. Gallatin Dairies (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 of policy 

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 Law Dictionary 345 (4th ed. 1979). The 

legislation at issue here similarly alters common-law rights 

and duties and arguably denies a cause of action, 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 legislature would 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 

negligence of another. 
It is true the legislature cannot destroy vested 

rights. Where an injury has already occurred for 

which the injured person has a right of action, the 

legislature cannot deny him a remedy. But at this 

late day it cannot be controverted that the 

remedies recognized by 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 extent of destroying actions for injuries or 

death arising from negligent accident, so long as 

there is no impairment of rights already accrued. 

Shea, 179 P. at 503. As Shea demonstrates, if Article 111, § 

6, is read as only a directive to the courts to provide for 

equal administration of justice, then the rule that the 

legislature may 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 TO ARTICLE 111, § 6, DID NOT 

RECOGNIZE OR CREATE A FUNDAMENTAL RIGHT TO FULL 

LEGAL REDRESS. 

In 1972, Article 111, § 6 of the 1889 Constitution was 

amended and inserted in the current Constitution as Article 

11 16. The amendment added to the Article 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 shall be 

deprived --- of this full legal redress for injury 

incurred in employment for which another person may 

- be liable-except - as - to fellow employees -- and his 

immediate employer - who hired --- him if such immediate 

employer provides coverage under the Workmen's 

Compensation --- Laws of this state. ~ightand justice 
shall be administered without sale, denial, or 

delay. 

In Reeves, the amended version of Article 111, $ 6 of the 

1889 Constitution was held not to constrict the legislature's 

decision to alter common law: 

As indicated in Shea and Stewart, the legislature 

is not constitutionally prohibited from eliminating 

common law rights which have not accrued or vested. 

The Constitution does not freeze common law rights 

in perpetuity. 

Reeves, 551 P.2d at 652. There was no comment in Reeves on 

the amendment to Article 111, § 6. 

1. The Wording 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 

immunity and equal protection. 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 

(emphasis added). White then concluded that the legislation 

violated the guarantee because no compelling state interest 

justified denying the fundamental right to full legal redress 

for all injuries. White, 661 P.2d at 1275. 

In Pfost, this Court faced an equal protection challenge 

to an amended version of the damages cap at issue in White. 

Pfost cited White and again held 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 important role in this determination: 
The use of the clause "this full legal redress" has 

major significance. It obviously and grammatically 

refers to the "speedy remedy afforded for every 

injury of person, property, or character. '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 statute that restricts, 

limits, or modifies full legal redress for injury 

to person, property or character therefore affects 

a fundamental right and the state must show a 

compelling state interest. 

Pfost, 713 P.2d at 503. 

There are flaws in this reasoning. As pointed out by 

Justice Weberls dissent 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 (4th ed. 1973)). If "this full legal redress" 

refers to the speedy remedy in the first clause, 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 third party actions in workers1 compensation 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 statutory or common law, . . . 

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

1979) (emphasis added) . 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, 

65 Or. L. Rev. 35, 67 (1986). 

Similarly, the redress referred to is legal redress. 

Legal means: 

Conforming to the law; according to law; required 

or permitted by law; not forbidden or 

discountenanced by 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 "cause of 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 person who may be wronged the right to seek redress to be 

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 defines what constitutes the facts 

which must be established to obtain remedy and redress in the 

context of wrongful discharge. 

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 

made whole again by what the law defines as a cause of action 

and its elements. Legal requirements and restrictions, as 

discussed more fully below, 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 establish what constitutes available causes of 

action, remedies, and redress. Thus, we disagree with the 

notion that the proper grammatical and definitional 

construction of the words in Article 11, 5 16 of the Montana 

Constitution supports the existence of a fundamental right 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 or 
underpinning of a cause of action and remedy as defined by 

the lawmakers before one arrives at the point of redress. 

2. The "Intent of the Framers." Basic rules of 

construction favor deriving the meaning of Article 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 of Article 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 

initial conclusion. 

White ' s and Pfost Is 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 explanation of the amendment in 

the Official Text with Explanation of the Proposed 1972 

Constitution, a document circulated to inform voters of the 

content of the Constitution prior to the vote on its adoption 

in 1972. Our beginning discussion focuses on the proceedings 

at the Constitutional Convention. 

The record from the Constitutional Convention of 1972 

demonstrates that the addition to Article 111, B 6, was meant 

to address a specific problem created by this Court's 

interpretation of a workers' compensation statute: 

DELEGATE MURRAY: The committee voted unanimously 

to retain this section with one important addition. 

The provision as it stands in the present 

Constitution guarantees justice and a speedy remedy 

for all without sale, denial or delay. The 

Committee felt, in light of a recent interpretation 

of the Workmen's Compensation law, that this remedy 
needed to be explicitly guaranteed to persons who 

may be employed by one covered by Workmen's 

Compensation to work on the facilities of another. 

Under Montana law, as announced in the recent 

decision of Ashcraft versus Montana Power Company, 

[I56 Mont. 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 

(emphasis added). Following Delegate Murray's explanation of 

the Ashcraft amendment, Delegate Habedank moved for its 

deletion: 

DELEGATE HABEDANK: Mr. President [Chairman] , ladies and gentlemen. I have 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 of Montana. All that is necessary 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' injuries beyond correcting the 

decision in Ashcraft: 

As I view this amendment, it will not allow anyone 

to recover from anyone else without negligence on 
the 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 that you will not be 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: 

I have heard this argument in the Supreme Court, an 

argument that had no basis in logic. I have heard 

it by several defense counsel who represent the 

best of corporate interests, that 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 the wording has 

been very precisely selected to make sure ----- that it 

-- does nothing more, than place the injured working 

man back in the status that he enjoyed prior to 

1971, a very basic constitutional right which he 

enjoyed for 80 years in the State of Montana. . . Regardless of all this conflict, this 

technicality, having to use the word "Workmen's 

Compensation" in this particular section, which we 

didn't want to do, because the minute we did it we 

knew that somebody would jump up and say it's 

legislative, but if you're going to draft something 

with precision and you want to make sure that all -- 

that you're doing is returning ----- the law to what it 

was prior -- to thisdecision a year ago, you are 

compelled, sometimes, in fasKioning this precise 

language to use language that may be seized upon by 

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 

(emphasis added). 

It is perhaps ironic that the convention delegates 

amended the Constitution to correct this Court's restrictive 
interpretation 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 

discussion presupposes the existence of legislative powers to 

alter causes of 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 coverage under workmens [sic] compensation 

laws. 

Proposed 1972 Constitution for the State of Montana, Official 

Text with Explanation, at 6. 

In summary, the history of our remedy guarantee, the 

rule that the legislature may alter the common law, and the 

wording of Article 11, 5 16, support Hillhaven's assertions 
that no fundamental right exists to the common-law claims 

asserted by Meech. The role the judiciary must maintain in 

interpreting constitutional limitations affecting the plenary 

power possessed by the people through their legislature, and 

through their initiative and referendum powers, also supports 

Hillhaven's assertions. 

D. Deriving A New Fundamental Right From Article 11, 

S 16, Violates Separation Of Powers. 

Both courts and legislatures make the substantive law. 

The Montana Legislature derives its power to make law from 

the Constitution's grant of plenary power in Article 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 

the powers of initiative and 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] constitutional provision that courts of justice 

shall be open to every person, and speedy and 

certain remedy afforded for every wrong and for 

every injury to person, property, or reputation, is 

- not intended - as - a limitation upon the legislative 

branch of the government 2 where the leaislation 2 - - - 

involved deals with rightful subjects of 

legislation. 
16A Am. Jur. 2d Constitutional Law 5 616, at 564 (2d ed. 

1979) (emphasis added); and see Salt Lake 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 interpretation of Article 11, Section 16, called for 

by Meech would prevent the legislature and the people 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 field of law governing important 

social and economic rights and duties. It could exclude the 

legislature from deciding: What are injuries to an 

individual's person, property, or reputation; what wrongs are 

actionable; what remedies are available; and what redress 

will be given. The present appeal presents this separation 

of powers issue. 

Gates expanded the law of wrongful discharge by defining 

as an injury the breach of the implied covenant of good 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 in 
such determinations could only be accomplished through 

constitutional amendment. We agree with Chief Justice 

Turnage's dissent in Pfost on this aspect of the issue: 

There further can be no question that our courts 

are open to every person and speedy remedy afforded 

for every injury of person, property, or character; 

however, this does not mean that the people have 

been denied the right to act through their 

legislature in providing a system of law that may 

set forth the scope and extent of the remedies 

provided by law. For this Court to decide 

otherwise requires a denial of the doctrine of 

separation of powers in Article 111, Section 1, of 

the Montana Constitution. 

Pfost, 713 P.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 initiative passed in 1986 amending Article 

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 the Act 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 

Shea must be distinguished from the Act. Meech asserts that 

in Shea, the modification of common law benefited workers, 

but here, according to Meech, the legislation only "creates 

employers' defenses and eliminates many 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 a mandate 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 Constitutional Rights did 

Montanans Surrender - in Hopes - of Securing Liability Insurance, 

48 Mont. L. Rev. 53, 66 (1987). Even if Montana 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 

submitted by the United States District Court. Article 11, S 

16, does not render the Act unconstitutional as depriving an 

individual, in this case Meech, of a fundamental right to the 

common-law actions he alleges. 
11. 

THE ACT SURVIVES EQUAL PROTECTION SCRUTINY BECAUSE IT IS 

RATIONALLY RELATED 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 question necessarily extends to an analysis 

of the equal protection guarantee found in Article 11, 5 4 of 

the Montana Constitution. 

White and Pfost interpreted Article 11, S 16, as 

guaranteeing a fundamental right of full legal redress for 

"all recognized compensable components of in jury, 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 then went on to hold that the 

legislation at issue violated the equal protection guarantee 

because no compelling state interest justified denying the 

fundamental right found in Article 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, and more properly framed as: 

Do the limitations on the recovery of certain 

damages in the Act violate equal protection 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 under Article 11, S 16. 

Meech alleges no other infringement of fundamental rights by 
operation of the Act, and no suspect classifications are 

involved. The strict scrutiny test applies only where 

legislative classifications infringe on a fundamental right, 

or where the legislature employs suspect classifications such 

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 employ middle 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 interest at issue here from the 

interests at stake in those cases. 

We determine that the proper level of scrutiny for the 

classifications created by the Act's limitation on employers' 

liability is provided by the rational basis 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 contract 
law. 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), 438 U.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 

legislative purpose." Boyd v. Bulala (W.D. Va. 1986), 647 F. 

Supp. 781, 786 (finding heightened scrutiny inappropriate for 

reviewing liability-limitation under requirements of 

Virginia's remedy guarantee). 

The Court in Duke Power pointed out that use of the 

rational basis test harmonizes with the ru1.e that the 

legislature may alter the common law: 

Our cases have clearly established that "[a] person 

has no property, no vested 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 recognized by 

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 the measure, as well 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 rational basis test applied to analyzing 

whether liability-limitations imposed through a special 

statute of limitations for architects and builders violated 

equal protection: 

The test of the constitutionality of class 

legislation is whether the classification has some 

reasonable, just and practical basis and whether 

the law operates equally upon every person within 

the class. [citations omittedl 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. [citation omittedl 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 the Act. 

Initially, in applying the rational basis test, it is 

important to 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), 762 P.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 

Legislature was in a position and had the power to 

pass upon the wisdom of the enactment, and in the 

absence of an affirmative showing that there was no 

valid reason behind the classification, we are 

powerless to disturb it." 

McClanathan v. Smith (1980), 186 Mont. 56, 66, 606 P.2d 507, 

513 (quoting State ex rel. Harnmond v. Hager (1972), 160 Mont. 

391, 399, 503 P.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, 606 P.2d at 513. 

The remedy provision in the Act, set out below, arguably 

classifies wrongful. discharge claimants based on the 

magnitude of harm: 

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 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 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 the 
discharge 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 availability of punitive damages. 

The general rule on the plenary power 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 legislature may, at its will, restrict or deny 

the allowance of such damages. 

22 Am. Jur. 2d Damages 5 239, at 326 (2d ed. 1965). See also 

White, 661 P.2d at 1276 (tort claimants have no 

constitutional right to punitive damages). We hold that the 

Act's provision on punitive damages is constitutional. 

We also hold that the Act's classification of claims by 

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 are 
classic 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 the Act's limitations on damages to four years 

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 wrongful 
discharge 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, 438 U.S. at 91. The same 

sort of analysis applies to the Act'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. 

It could 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 the Act as a result of 

the "good cause" requirement. 

For example, in computing contract damages according to 

the contemplation of the parties, recovery for 

mental anguish is not, as a general rule, allowed. . . . the courts evidently believe that the mental 

suffering which accompanies a breach of contract is 

too remote for compensation. 

22 Am. Jur. 2d Damages § 195 (2d ed. 1965). Montana follows 

the general rule by prohibiting damages for emotional or 

mental distress in most contract actions. Section 27-1-310, 

MCA . In contrast, the law generally permits a broader 

measure of damages in personal 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 different 
cases, even where the physical injury is the same, 

especially where the injury is permanent, or where 

pain and suffering are involved. When a plaintiff 

suffers pain, fright, or humiliation because of a 

tort, dollars are awarded as "compensation" but not 

as the equivalent of what was suffered. Because of 

this lack of equivalence in a major portion of many 

personal injury awards, precise rules of damages 

are impossible to state. 

22 Am. Jur. 2d Damages S 86 (2d ed. 1965) (emphasis in 

original). Montana also follows the general rule on damages 

for personal 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 (emphasis added). 

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, 638 P.2d at 

1066. Employers, however, are unable to plan for the 

extensive liability which may arise from damages 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 "good 
employees' cause" requirement. The Act, in making this 

trade, is in no 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 legislature to provide adequate substitutes 

for causes of action abrogated by statute. The Court in Duke 

Power faced a similar contention based on the Due Process 

Clause of the United States Constitution: 

The District Court held that the Price-Anderson Act 

contravened the Due Process Clause because " [tlhe 

amount of recovery is not rationally related to the 

potential losses"; because " [tlhe Act tends to 

encourage irresponsibility in matters of safety and 

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 in Duke Power resolved 

the argument for requiring a -- quid pro quo as 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 law remedies it replaces. 

Duke Power, 438 U.S. at 88. 

Here, too, the benefits of the Act for employees are not 

illusory. Therefore, we need not reach the issue as posed 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. For 
example, 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 let go 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 fire without 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 cause defined 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. Section 
39-2-903(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 

explained by one commentator: 

[Tlhe employees who benefit [under common-law cause 

of action] are few and far between, 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 doctrines adopted 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 

injuries as provided by governing law. It does not, 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 

not another, is the rational basis 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, the Act provid-es a reasonable 
substitute. Thus, we answer "No" to both questions posed by 

the United States District Court. 

We Concur: 

/')' 

'Chief Justice 

&if'&~M$& Justice 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

This is the blackest judicial day in the eleven years 

that I have sat on this Court. Indeed it may be the blackest 

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 Employment Act" the whole of 

the Act must be set out. The legislation passed 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 4 of the Act [§ 39-2-904, MCA] grounds for 

wrongful discharge are limited to three possibilities: 

(1) It was in retaliation for the employees 

refusal to violate public policy or for reporting a 

violation of public policy; 

(2) The discharge was not for good cause and the 

employee had completed the employers probationary 

period of employment; [under the Act, a probationer 
has absolutely no right of recourse for a wrongful 

discharge] or 

(3) The employer violated the express provisions 

of its own written personnel policy. 

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 to perjure 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 sexual relations. 

- Id., 186 Mont. 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 Prout v. 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 discharge must be 

for good cause after the probationary period has elapsed. 
These and other cases relied on the implied covenant of good 

faith and fair dealing. 

The third element for which wrongful discharge is 

granted under the Act is if the employer violates the express 

provisions of its own written personnel 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 a breach 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., 668 P.2d at 1020, 212 Mont. 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 of Montana Insurance 

Company (1982), 196 Mont. 178, 638 P.2d 1063, and Gates v. 

Life of Montana Insurance Company (1983), 205 Mont. 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; 

Krenshaw v. Bozeman Deaconess ~ospital (1984), 213 Mont. 488, 

693 P.2d 487; 

The elements of wrongful discharge, as found in the Act, 

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 those 
three elements of wrongful discharge, it took care to provide 

that - no significant amount of damages 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 that period. 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 form of 

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 the Act itself. The real purpose of Section 8 is 

to negate by elimination any possible employee claim of tort 

based upon an implied covenant of good faith and fair dealing 

in the employment contract. This provision takes Montana out 

of the mainstream of American 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), 149 Mont. 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, 

687 P.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 real property 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 fair dealing is measured in any particular contract 
by 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 recovery of punitive damages. Although the Act 

here in question provides [Section 5(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 can be 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 Employment Act. The 

legislature refused, 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. The Nevada 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 dependent 
on the good faith indemnity promised by the 

insurance carrier. The special relationships of 

trust between 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 

damages as 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 do was to pay contract damages for 

this kind of conduct, it would allow and even 

encourage dismissals of employees on the eve of 

retirement with virtual impunity. ~aving to 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 retirement benefits 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 in bad faith breached 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 

implications of 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 economic 
result 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 clout of the 

unorganized workers, although they may comprise a majority 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 law can do no right 

[Then] it be lawful that law can bar no wrong. 

-~illiam Shakespeare, ~inq John (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 the Act. 

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" under Art. 11, Sec. 16, Montana 

State Constitution. So holding, the majority 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 premises were 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 cases 
of this Court, decided that there was no cause of action by a 

tenant against the landlord for such a defect and granted 

summary judgment. his Court held (~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 Constitution and went 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 action were to be taken away, 

a substitute remedy would have to be provided. 

Arguably, the repair and deduct statute provides an 

alternative remedy for damage to the leasehold 

interest. However, in no way can it be considered 

an alternative remedy for damages caused by 

personal injury or a wrongful death. (Emphasis 

supplied. ) 

- Id., 626 P.2d at 840. 

Justice Harrison then noted a controlling statute and 

went on to state: 

In summary, we overrule Dier v. Mueller, supra, and 

hold that our Constitution requires that plaintiff 

have a form of redress for wrongful death and 

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 wrongful death case, and that Art. 

11, Sec. 16 constitutionally guaranteed the right of redress 

in that case. Why the majority overrules that case is beyond 

my conjecture. 

In White - v. State, supra, Karla white sued the State of 

Montana alleging that the State was grossly negligent in 
permitting an allegedly violent and dangerous person to 

escape from the mental hospital at Warm springs and 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 insignificant economic damages, would be 

effectively wiped out. The District Court held that the 

statutory limitation on governmental liability for damages 

was unconstitutional and 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 7- to be compensated for physlcal 

pain - and mental angulsh ---- and the loss of enjoyment 

- of llvlng. hes sf ore, strict scrutiny attaches. 

(Emphasis supplied. ) 

- Id., 661 P.2d at 1275. 

In white, this Court found no compelling state interest 

to classify tortfeasor victims on whether they had been 
injured 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 

tortfeasors by 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 shall be 

deprived of this full a redress for injury 

incurred in employment for which another person may 

be liable except as to fellow employees and his 

immediate employer who hired him if such immediate 

employer provides coverage under Workmens' 

Compensation Laws of this state. Right and justice 

shall be administered without sale, denial, or 

delay. (Emphasis added. ) 

Pfost - v. State involved a plaintiff who had been injured 

when his truck-tractor collided with 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 eventually made him a 

quadriplegic. He sought compensatory damages of 6 million 
dollars. In the meantime, the legislature had adopted a new 

statute regarding the liability of the State in tort cases, 

limiting any or all recovery to $300,000 for a single person. 

Section 2-9-107, MCA. Pfost's medical expenses alone 

exceeded that sum. The District Court held the statute to be 

unconstitutional as a denial of equal protection and the 

State appealed. In Pfost, we followed White - v. State, supra, 

holding that Art. 11, Sec. 16, 1972 of Montana constitution, 

granted a fundamental right to access to courts for a full 

legal redress and on the basis of equal protection found that 

S 2-9-107, MCA, discriminated improperly between those with 

minor injuries and those with catastrophic injuries resulting 

from the tort of a government agent. In passing on the 

language of Art. 11, Sec. 16, supra, we stated: 

The use of the clause "this full legal redress" has 

major significance. It obviously and grammatically 

refers to the "speedy remedy afforded for every 

injury of person, property, or character." The 

adjective "this" means the person, thing, or idea 

that is present or near in place, time, or thought 

or that has just been mentioned. 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 

to person, property, or character therefore affects 

a fundamental right and the State must show a 

compelling state interest if it is to sustain the 

constitutional validity of the statute. 

Pfost, 713 P.2d at 503. 

The majority object to our grammatical interpretation in 

Pfost of Art. 11, Sec. 16, as "flawed." Perhaps the majority 

have rules of grammar of which this writer is unaware, but we 

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 legal redress." 

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. The majority contend that the purpose of the 

inclusion of the second sentence was 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 that Workers' Compensation claimants had the right of 

full legal redress, too. Ashcraft was a laborer working for 

a construction company which as an independent contractor was 

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. 

16 was considered by the constitutional framers in 1972. The 

second sentence of Art. 11, Sec. 16 was inserted specifically 

to overrule Ashcraft. 

When the provisions of Art. 11, Sec. 16 came before the 

Constitutional convention for eventual adoption, Delegate 

Habedank, as indicated in the majority opinion, made a motion 

to strike the second sentence of the section upon the grounds 

that the sentence was merely legislative, and its subject was 

better left to the legislature. Delegate Habedank's 

amendment to delete the second sentence was defeated in the 

convention, but before the amendment was submitted to a vote, 

Delegate Habedank made a comment that 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, I do not particularly oppose this particular 

amendment, but I have been told that we lawyers are 

writing the Constitution, trying to slip matters 

into this Constitution for our own personal gain. 

You have had the pro of the con given to you. This 

is somethinq that can't be corrected by the 

legislature. - ---- You have it in your power --- to be the 

supreme Legislature, as the committee has requested 

you to do. I leave it to you, but I do think that 

when you do it, you should do it knowing what you 

do and not accuse the lawyers of pulling the wool 

over your eyes. (Emphasis supplied.) 

verbatim h ran script, page 1758. 

Even more interesting in connection with the 

Constitutional Convention is that the author of the majority 

opinion here, a respected member of the Constitutional 

Convention, stood and opposed Delegate Habedank's motion to 

delete the second sentence of Art. 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 

should be 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 

legal redress, the legislature could make 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 

commendable efforts of Delegate McDonough to support Art. 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) when he 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. 

(Emphasis added.) 
(See No11 and Kenneady v. Bozeman (1975), 166 Mont. 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 let us state exactly 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 statute was fundamental. White and 

Pfost established that when a statute discriminated 

invidiously between injured plaintiffs, the courts under Art. 

11, Sec. 16 would apply exacting scrutiny to determine the 

necessity, if any, for the discrimination. Those results 

were commanded by the language of Art. 11, Sec. 16. 

A major premise of the majority opinion is that Art. 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 a minimal rational test. 

That concept ignores the last sentence of Art. 11, Sec. 16, 

which tells the courts that "right and justice shall be 

administered without denial.'' 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 

from grievances is meaningless. State protection of citizens 

from injustice, - a fortiori, is also a fundamental right; else 

the right of petition 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 justice 
delivers also the balance of a working lifetime of 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 legislature has the power 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 

legislative action within constitutional limits. That design 

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 the public in state constitutional disputes. 

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 this 
appellate 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 arbiter of what the state law in Montana shall 

be is this Court, under Art. 11, Sec. 16, not the 

legislature. We are given that power, to be used judicially. 

The Justices in the majority 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 its duty, is making law and 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 justice are not denied. 
111. 

Having determined that Meech 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 is rational to make 

the state safe for unscrupulous employers. 

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 from written 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 law we 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 in Montana. 

We should also put out of the way 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 the Act 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 persons 
similarly situated and it discriminates vertically as well as 

horizontally. 

Equal protection permits reasonable classifications only 

if those similarly situated in relevant respects are treated 

similarly. An Act is excessively underinclusive if it 

excludes persons 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 

Employment Act. 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 result of a violation 

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, 183 Mont. 410, 

600 P.2d 191. 

3. The Act discriminates against long term employees by 

severely limiting their damages which might be large in 

magnitude. See ~lanigan v. prudential Federal savings and 

Loan (1986), 221 Mont. 419, 720 P.2d 257. 

4. A worker on probation is entirely precluded from any 

action for wrongful discharge. 
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 lawful ways. In enjoying these rights, all 

persons recognize corresponding responsibilities." Art. 11, 

§ 3, 1972 Mont. Const. 

Thus, no case can be made on a rational basis to sustain 

a law the principal purpose of which is to subsidize, protect 

or enhance the acts of wrongdoers. 

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 1972 Montana 

Constitution, Art. 11, S 4. 

As stated in Richardson v. ~arnegie ~ibrary Restaurant, 

Inc. (NM 1988), 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 

treating persons within that class differently from 

those without. See McLaughlin v. ~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 rights of recovery of injured parties must provide 

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, the majority 

can find in a cloud a camel's shape, a weasel's, or very like 

a whale. 

In determining the adequacy of the substituted recovery 

in the Act, the majority confined itself to examination of 

the mitigated four years of damages as against what might be 

recovered for loss of wages or fringe benefits. The majority 

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 

inadequacy of the recoverable damages in the Act 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), 751 P.2d 162, show 
the injury done by the Act to plaintiffs through the 

elimination of common law tort remedies. The Act simply does 

not survive an adequacy test when properly admeasured against 

the former law in Montana. 

Other constitutional provisions probably affected by the 

majority decision but not referred to by the majority opinion 

and thus not pertinent 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--that is, "some advantage" 

to which a person "would be entitled but for a choice made by 

government authority." Salem v. Bruner (Ore. 1985), 702 P.2d 

70, 74. In a recent case in washington, sophie v. 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 constitution could 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 imposes upon the judiciary the duty to guard the 

state constitution. In its decision today, this Court 

sidesteps that duty and reverses not only the cases mentioned 

in the majority opinion but a long line of cases in the past 

15 years that have established solid boundaries for employers 

and employees, while adhering to the at-will principle 
declared 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. The Wrongful Discharge From Employment Act 

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. 

I would hold the Wrongful isc 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. 

/ 
EXHIBIT A 

CHAPTER NO. 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 

PROVIDING AN APPLICABILITY CLAUSE AND AN EFFECTIVE 

DATE. 

Be in enacted by the ~egislature of the State of 

Montana: 

section 1. Short title. [Sections 1 through 

91 may be cited as the "Wrongful isc charge From 

Employment Act". [5 39-2-9011 

Section 2. Purpose. [Sections 1 through 91 

set forth certain rights and remedies with 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. [S 39-2-9021 

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, including 
resignation, 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 

legitimate business reason. 

(3) "Employee" means a person who works for 

another for hire. The term does not include a 

person who 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 

legitimate business 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 is wrongful only?£: 

(1) it was in retaliation for the employee's 

refusal to violate public policy or for reporting a 

violation of public 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 own written personnel policy. [§ 

39-2-9041 
section 5. ~emedies. (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 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 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 the 

discharge of the employee in violation of [S 4 (1) I. 

(3) There is no right under any legal theory 

to damages for wrongful discharge under [sections 1 

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). [S 39-2-9051 

Section 6. Limitation of actions. (1) An 

action under [sections 1 throuqh 91 must be filed 

within 1 year after the date of-discharge. 

(2) If an employer maintains written internal 

procedures, other than those specified in [section 71 , 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 of 
the employer's internal procedures extend the limitation 

period in subsection (1) more than 120 days. 

(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) [S 39-2-9111 

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 similar grounds. 

(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 

as provided in [sections 1 through 91, no claim for discharge 

may arise from tort or express or implied contract [B 

39-2-9131 
Section 9. Arbitration. (1) Under a written agreement 

of the parties, a dispute that otherwise could be adjudicated 

under [sections 1 through 91 may be resolved by final and 

binding arbitration as provided 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 , [sections 1 through 91 apply. 

(c) The arbitrator is bound by [sections 1 through 91 . 

(3) If a complaint is filed under [sections 1 through 

91, the offer to artibrate must be made within 60 days after 

service of the complaint and must be accepted in writing 

within 30 days after the date the offer is made. 

(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 [sections 1 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 prevails 
in such arbitration is entitled to have the arbitrator's fee 

and all costs of arbitration paid by the employer. 

(6) If a valid offer to arbitrate is made 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 

Arbitration Act. [S 39-2-9141 

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 all valid applications that are severable from the invalid 

applications. 

Section 12. Applicability. This act applies to claims 

arising after the effective date of this act. 

Section 13. Effective date. This act is effective July 

1, 1987. 

Approved May 11, 1987. 
Mr. Justice John Conway Harrison, dissenting. 

While I agree with much that is said by the majority in 

this opinion, the totality of this opinion in reversing so 

many cases this Court has previously decided, 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 fundamental right to full- legal redress under 

that statute.