White v. State

NO. 82-170

I N THE SUPREME COURT OF THE STATE OF MONTANA

1983

KARLA WHITE,

Plaintiff and R e s p o n d e n t ,

vs.

STATE OF MONTANA,

Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court of the Eighth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County of Cascade
Honorable John McCarvel, Judge p r e s i d i n g .

Counsel of Record:

For Appellant:

John B o b i n s k i and Michael Young a r g u e d , Dept. of Admin.,
H e l e n a , Montana

For Respondent:

Hoyt a n d T r i e w e i l e r , G r e a t F a l l s , Montana
E r i k B . T u e s o n a r g u e d , G r e a t F a l l s , Montana

F o r Amicus C u r i a e :

Anderson, Edwards & Molloy, B i l l i n g s , Montana
R i c h a r d W-Anderson a r g u e d , B i l l i n g s , Montana
A n d e r s o n , Brown, G e r b a s e , C e b u l l & J o n e s , B i l l i n g s , Montana
J a m e s L. J o n e s a n d Ann E . W i l c o x , B i l l i n g s , M o n t a n a
M i c h a e l J . McKeon, ( D o n n a B a r t e l ) A n a c o n d a , M o n t a n a
H a r o l d F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
J i m N u g e n t , C i t y A t t o r n e y , M i s s o u l a , Montana
P e t e r s o n , S c h o f i e l d & L e c k i e , B i l l i n g s , Montana
K e n n e t h D . P e t e r s o n , B i l l i n g s , Montana
F r e n c h , G r a i n e y & Duckworth, Ronan, Montana
Edward K . Duckworth (Donna B a r t e l ) Ronan, Montana
J . D a n i e l Hoven, L e g a l S e r v i c e s D i v i s i o n , H e l e n a , Montana
David G l i k o , C i t y A t t o r n e y , G r e a t F a l l s , Montana
J . F r e d B o u r d e a u , C o u n t y A t t o r n e y , G r e a t F a l l s , Montana
B u r g e s s , J o y c e & Whelan, B u t t e , Montana
Thomas F . J o y c e , Amy F o r a n , B u t t e , M o n t a n a
M i l o d r a g o v i c h , D a l e & Dye, M i s s o u l a , M o n t a n a
H a r o l d V . Dye, M i s s o u l a , Montana
A l e x a n d e r a n d B a u c u s , G r e a t F a l l s , Montana
N e i l U g r i n , Co. o f C a s c a d e & C i t y o f G r e a t F a l l s , G r e a t
F a l l s , Montana

Submitted: February 3 , 1 9 8 3

Decided: April 8 , 1 9 8 3
9PR 8 1983
Filed: -. .

Clerk
 Mr. Justice Frank B. Morrison, Jr. delivered the Opinion

of the Court.
The State of Montana appeals from a summary judgment
entered by the District Court of the Eighth Judicial District,

Cascade County, which found section 2-9-104, MCA, limitation
on governmental liability for damages in tort, and section
2-9-105, MCA, providing for state immunity from exemplary

and punitive damages, both to be unconstitutional.
Plaintiff filed an action seeking damages for personal
injury alleging negligence on the part of defendant State of
Montana. The State filed an answer alleging that the govern-
ment was immune from liability for noneconomic damages and
for punitive damages. Plaintiff moved the court for summary
judgment on these defenses, claiming the limitations found
in the State Tort Claims Act are unconstitutional and void.
Plaintiff Karla White intends to prove that as a result
of the reckless conduct of the State of Montana, she was
attacked by a violent and dangerous criminal, and that as a
result, she has sustained severe emotional injuries which
will significantly affect her ability to live a happy and

fulfilling life, although her demonstrable economic losses

will be relatively insignificant. The allegation of gross

negligence against the State of Montana is premised upon the
State permitting the allegedly violent and dangerous person

to escape from the mental hospital at Warm Springs and
remain free for a period of five years without serious
attempts to locate and reincarcerate this individual.
Plaintiff was attacked in Great Falls, Montana, approximately
five years after the inmate escaped from Warm Springs.
We find the following issues to be dispositive:
1. Do the limitations on recovery against the State of

Montana as provided for in section 2-9-104, MCA, violate
constitutional guarantees of equal protection?
2. Does the prohibition against exemplary and punitive
damage assessments as provided for in section 2-9-105, MCA,

violate constitutional guarantees of equal protection and
due process?

DOES SECTION 2-9-104, VIOLATE CONSTITUTIONAL GUARANTEES OF
EQUAL PROTECTION?
Section 2-9-104, MCA, provides as follows:

"(1) Neither the state, a county, municipality,
taxing district, nor any other political sub-
division of the state is liable in tort action
for:
(a) noneconomic damages; or
(b) economic damages suffered as a result of an
act or omission of an officer, agent, or employee
of that entity in excess of $300,000 for each
claimant and $1 million dollars for each occurrence.

(2) The legislature or the governing body of a
county, municipality, taxing district, or other
political subdivision of the state may, in its
sole discretion, authorize payments for noneconomic
damages or economic damages in excess of the sum
authorized in subsection (1)(b) of this section,
or both, upon petition of plaintiff following a
final judgment. No insurer is liable for such
noneconomic damages or excess economic damages
unless such insurer specifically agrees by written
endorsement to provide coverage to the governmental
agency involved in amounts in excess of the
limitation stated in this section or specifically
agrees to provide coverage for noneconomic damages,
in which case the insurer may not claim the benefits
of the limitation specifically waived."
Plaintiff attacks section 2-9-104(1), MCA, by arguing
it violates equal protection by classifying people in three
different ways:
1. It classifies victims of negligence who have
sustained noneconomic damage by whether they have been
injured by a nongovernment tort-feasor or a government tort-
feasor. It totally denies any recovery to the latter class.

2. It classifies victims of government tort-feasors by

whether they have suffered economic damages or noneconomic
damages. It allows recovery to the former group up to
 $300,000 w h i l e i t t o t a l l y d e n i e s r e c o v e r y t o t h e l a t t e r
group.

3. I t c l a s s i f i e s v i c t i m s o f government t o r t - f e a s o r s by
t h e severity of t h e victims' i n j u r i e s . I t g r a n t s recovery

t o t h o s e v i c t i m s who h a v e n o t s u s t a i n e d s i g n i f i c a n t i n j u r y

by a l l o w i n g them t o r e c o v e r up t o $300,000 i n economic

damages. It discriminates against the seriously injured

v i c t i m s by d e n y i n g r e c o v e r y f o r any i n j u r i e s o v e r $300,000.

The c o n s t i t u t i o n a l g u a r a n t e e o f e q u a l p r o t e c t i o n

r e q u i r e s a l l p e r s o n s t o b e t r e a t e d a l i k e u n d e r l i k e circum-

stances. U.S. C o n s t . , Amend. X I V , S e c t i o n 1; 1972 Mont.

Const., A r t . 11, S e c t i o n 4 . I f a s t a t u t e a f f e c t s a "fundamental

r i g h t , " i t must b e measured by a s t r i c t s c r u t i n y t e s t . Dunn

v . B l u m s t e i n ( 1 9 7 2 ) , 405 U.S. 330, 92 S . C t . 995, 3 1 L.Ed.2d

274, 284; S h a p i r o v . Thompson ( 1 9 6 9 ) , 394 U.S. 618, 89

S.Ct. 1322, 22 L.Ed.2d 600; M a t t e r o f E s t a t e o f Merkel

(1980) , Mont. , 618 P.2d 872, 37 S t . R e p . 1782.

A p p l i c a t i o n o f t h i s t e s t r e q u i r e s t h a t t h e s t a t u t o r y scheme

b e found u n c o n s t i t u t i o n a l u n l e s s t h e S t a t e c a n d e m o n s t r a t e

t h a t s u c h law i s n e c e s s a r y " t o promote a c o m p e l l i n g government

interest." Dunn v . B l u m s t e i n , s u p r a .

The S t a t e a r g u e s t h a t t h e r i g h t t o b r i n g a c i v i l a c t i o n

f o r p e r s o n a l i n j u r i e s i s n o t a f u n d a m e n t a l r i g h t and t h a t

t h e s t a t u t o r y scheme must b e judged by t h e less burdensome

r a t i o n a l b a s i s test. W e r e j e c t t h e S t a t e ' s a r g u m e n t and

adopt t h a t of t h e p l a i n t i f f .

A r t i c l e 11, s e c t i o n 1 6 o f t h e Montana C o n s t i t u t i o n

g u a r a n t e e s t h a t a l l p e r s o n s s h a l l h a v e a " s p e e d y remedy . . .
f o r every i n j u r y of person, property, o r character." In

Corrigan v. Janney, (1981) , Mont. , 626 P. 2d 5 3 5 ,

38 St.Rep. 545, t h i s C o u r t h e l d t h a t i t i s " p a t e n t l y u n c o n s t i t u -

t i o n a l " f o r t h e l e g i s l a t u r e t o p a s s a s t a t u t e which d e n i e s a c e r t a i n
class of Montana citizens their causes of action for personal
injury and wrongful death. We affirm and refine 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 compensable components of injury, including
the right to be compensated for physical pain and mental
anguish and the loss of enjoyment of living. Therefore,
strict scrutiny attaches.

The State argues that it has shown a compelling state

interest in "insuring that sufficient public funds will be
available to enable the State and local governments to
provide those services which they believe benefit their
citizens and which their citizens demand." The State further

argues that the government has to engage in a wide variety

of activities, some of which are extremely dangerous and not
confronted by private industry. The District Court found

that, "this 'bare assertion', however, 'falls far short of
justifying' a discrimination which infringes upon fundamental
rights." We agree.

The government has a valid interest in protecting

its treasury. However, payment of tort judgments is simply a
cost of doing business. There is no evidence in the record

that the payment of such claims would impair the State's

ability to function as a governmental entity or create a
financial crisis. In fact, the State of Montana does have
an interest in affording fair and reasonable compensation to
citizens victimized by the negligence of the State. Therefore,

the strict scrutiny test mandated by the implication of a
fundamental right has not been satisfied and the statute
prohibiting recovery for noneconomic damage is uncon~tituti~nal
under the Montana State Constitution.
We recognize that some limit on the State's liability
may comport with the constitutional guarantees of equal
protection. However, such a limitation cannot discriminate
between those who suffer pain and loss of life quality and
those who primarily suffer economically.
We are left, in reviewing the constitutionality of
section 2-9-104, MCA, with the question of whether the
limitation on economic damages of $300,000 for each claimant
and $1,000,000 for each occurrence is constitutional. If we
were to leave intact that portion of section 2-9-104, MCA,
which limits economic damages to the sum of $300,000 for
each clailnant and one million dollars for each occurrence,
we would then be left with a situation where recovery for
pain and suffering was unlimited and recovery for economic
damages was limited as prescribed by the statute. New discrimination
problems would then exist; those whose primary loss was
intangible could recover without limit but those who suffer
tangible losses would be limited. Furthermore, at this point
the state has failed to demonstrate a compelling state interest
which would justify any limitation. We therefore declare
section 2-9-104, MCA, in its entirety, to be unconstitutional.
DOES THE PROHIBITION AGAINST EXEMPLARY AND PUNITIVE DAMAGES
FOUND IN SECTION 2-9-105, MCA, VIOLATE EQUAL PROTECTION?
The punitive damage question is different from the
issue of limiting compensatory damages. Plaintiff has a
constitutional right to redress for all of her injuries but
she does not have a constitutional right to recover punitive
damages. In reviewing the constitutionality of a statute
immunizing the State from punitive damage assessments, we
apply the "rational basis" test rather than the "strict
scrutiny" test.
There exists a rational basis for distinguishing
governmental entities from others in the application of
punitive or exemplary damage law. The primary purpose of
assessing punitives is to punish the wrongdoer and through
that punishment, deter future unlawful conduct of the tort-
feasor and others who might be inclined to engage in like

conduct. The problem with assessing punitive damages against

the government is that the deterrent effect is extremely
remote and innocent taxpayers are, in fact, the ones punished.

Those taxpayers have little or no control over the actions
of the guilty tort-feasor.
This problem was addressed by the United States Supreme
Court in City of Newport v. Fact Concerts, Inc. (1981), 453
U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616, wherein the Court

stated:
"Punitive damages by definition are not intended
to compensate the injured party, but rather to
punish the tortfeasor whose wrongful action was
intentional or malicious, and to deter him and
others from similar extreme conduct. See Restate-
ment (Second) of Torts, S908 (1979); W. Prosser,
Handbook of the Law of Torts 9-10 (4th ed. 1971).
Regarding retribution, it remains true that an
award of punitive damages against a municipality
'punishes' only the taxpayers, who took no part in
the commission of the tort. These damages are
assessed over and above the amount necessary to
compensate the injured party. Thus, there is no
question here of equitably distributing the losses
resulting from official misconduct. Cf. Owen v.
City of Independence, 445 U.S., at 657, 100 S.Ct.,
at 1418. Indeed, punitive damages imposed on a
municipality are in effect a windfall to a fully
compensated plaintiff, and are likely accompanied
by an increase in taxes or a reduction of public
services for the citizens footing the bill.
Neither reason nor justice suggest that such
retribution should be visited upon the shoulders
of blameless or unknowing taxpayers." 453 U.S. at
266-67, 101 S.Ct. at 2759-60, 69 L.Ed.2d at 632.
We find that section 2-9-105, MCA, constitutionally
creates immunity from punitive damage assessments for govern-
mental entities.
Amicus curiae has presented the issue of whether the

limitations set forth in section 2-9-104, MCA, are unconstitutional

in that the limitations were not voted upon by the people
but were adopted by the legislature. Amicus argues that, by

adopting the limitations the legislature amended the constitution.
We find this argument interesting but not dispositive in
light of our holding that the questioned section violates
equal protection of law.

The judgment of the District Court finding section 2 - 9 -
104, MCA, unconstitutional is affirmed. The judgment of the

District Court finding section 2-9-105, MCA, unconstitutional
is vacated.
We remand this case for trial to be conducted in conformity

with the views herein expressed.

We concur:

Justices
Mr. J u s t i c e L . C. G u l b r a n d s o n c o n c u r r i n g i n p a r t a n d
dissenting i n part:

I concur with t h e h o l d i n g of the majority opinion t h a t the
s t a t e and o t h e r g o v e r n m e n t a l e n t i t i e s are immune from e x e m p l a r y

and p u n i t i v e damages and t h a t noneconomic damages a r e r e c o v e r -

a b l e , b u t I r e s p e c t f u l l y d i s s e n t from t h e h o l d i n g t h a t s e c t i o n
2-9-104, MCA, is, i n its e n t i r e t y , u n c o n s t i t u t i o n a l .
That holding, i n my o p i n i o n , is somewhat g r a t u i t o u s inasmuch

a s s e c t i o n 2 - 9 - 1 0 4 ( 1 ) ( b ) , MCA, w a s not r a i s e d o r argued b e f o r e
t h e District Judge. Counsel f o r p l a i n t i f f , in h i s reply brief

below, f i l e d F e b r u a r y 25, 1982, s t a t e d : " P l a i n t i f f s damages a r e ,

for all intents and purposes, noneconomic." Section
2-9-104(1)(b), s e t t i n g a l i m i t o n t h e r e c o v e r y f o r e c o n o m i c dama-

ges at $300,000 for each claimant and $1 million for each
o c c u r r e n c e , was not, theref ore, properly before the District

Court.

By constitutional amendment, the legislature was clearly

g i v e n a u t h o r i t y to s t r u c t u r e governmental immunity by t w o - t h i r d s
vote of each house. The l e g i s l a t u r e , in setting the l i m i t s a t
$ 3 0 0 , 0 0 0 and $ 1 m i l l i o n and i n d e v i s i n g t h e p o s t - j u d g m e n t proce-

d u r e s (2-9-104(2) ) , a p p a r e n t l y w a s b a l a n c i n g t h e c o n c e p t of i d e a l
j u s t i c e and t h e need f o r f i s c a l s e c u r i t y , n e c e s s a r y f o r g o v e r n -

mental e n t i t i e s t o , i n f a c t , p r o v i d e o b l i g a t o r y s e r v i c e s to t h e

public. The Wisconsin Supreme Court, in Sambs v. City of
Brookfield (1980), 97 Wis.2d 356, 293 N.W.2d 504, used the
f o l l o w i n g language to d e s c r i b e t h e problem.

" I t is t h e l e g i s l a t u r e I s f u n c t i o n t o e v a l u a t e
t h e r i s k , t h e e x t e n t of e x p o s u r e to l i a b l i t y ,
t h e need t o c o m p e n s a t e c i t i z e n s f o r i n j u r y ,
t h e a v a i l a b i l i t y o f and c o s t of i n s u r a n c e , and
t h e f i n a n c i a l c o n d i t i o n of t h e governmental
units. I t is t h e l e g i s l a t u r e ' s f u n c t i o n to
s t r u c t u r e t h e s t a t u t o r y p r o v i s i o n s , which w i l l
p r o t e c t the public i n t e r e s t i n reimbursing the
v i c t i m and i n m a i n t a i n i n g g o v e r n m e n t s e r v i c e s
a n d w h i c h w i l l be f a i r and r e a s o n a b l e to t h e
v i c t i m and a t t h e same t i m e w i l l be r e a l i s t i c
r e g a r d i n g t h e f i n a n c i a l b u r d e n t o be p l a c e d o n
t h e taxpayers."
The obligations imposed upon g o v e r n m e n t a l e n t i t i e s m u s t be

performed, even though t h e r i s k s i n h e r e n t i n performing a b s o l u t e

obligations are great. The responsibility for con£ i n i n g ,
housing, and rehabilitation of persons convicted of criminal
activity; the t r e a t m e n t and supervision of mental patients at

government institutions or under government programs; the
planning, c o n s t r u c t i o n , and m a i n t e n a n c e of t h o u s a n d s o f m i l e s of
highways ; t h e o p e r a t i o n of municipal t r a n s p o r t a t i o n s y s tems and

a i r p o r t t e r m i n a l s ; and t h e o p e r a t i o n and m a i n t e n a n c e of s c h o o l s ,
playgrounds, and athletic facilities are o n l y a few of those
obligations.

Section 2-9-104(2) , now declared unconstitutional by the
majority , contains language limiting t h e e x p o s u r e of insurers.
Undoubtedly, t h e r e are insurance contracts i n ex i s t e n c e , which

now s h o u l d be rewritten to p r o v i d e coverage for the unlimited
l i a b i l i t y facing governmental e n t i t i e s .
In my view, this Court could, and should, find that the
$ 3 0 0 , 0 0 0 and $ 1 m i l l i o n l i m i t s a p p l y t o e c o n o m i c and noneconomic
losses, and that the post-judgment procedures for excess
judgments s h o u l d be retained, because those procedures include

e n t i t i e s other than the legislature.

f
J u s t ice
P L *
Mr. Justice Fred J. Weber concurs and dissents as follows:
I concur in the holding of the majority that section
2-9-105, MCA, creates immunity from punitive damage
assessments for governmental entities. I dissent from the
remainder of the majority holding.
The majority concludes that Article 11, Section 16 of
the Montana Constitution guarantees that all persons have a
speedy remedy for every injury. A review of the history of
this constitutional provision, along with the interpretations
of this Court, raises serious challenges to that conclusion.
Article 111, Section 6 of the 1889 Montana Constitution
stated:
"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,
6r delay. "
Article 11, Section 16 of the 1972 Montana Constitution
("Section 16") used the same wording regarding courts of
justice and speedy remedy, placing a period following the
word "character." The 1972 Constitution then inserted a new
sentence providing that no person should be deprived of full
legal redress for injury incurred in employment with certain
exceptions in connection with Workmen's Compensation, which
is not applicable. The last sentence of the provision is
identical to the final clause in the 1889 paragraph regarding
the administration of justice.
A review of the 1972 Constitutional Convention
proceedings shows that the only stated intent to broaden or
change the 1889 Constitutional provision concerned the
question on Workmen's Compensation. We must conclude that
the 1972 Convention did not intend to change the existing
constitutional provision with regard to courts of justice and
speedy remedy.
 Initially the decisions of this Court were consistent in
the analysis of "Section 16" and its constitutional
predecessor. In Shea v. North-Butte Mining Co. (1919), 55
Mont. 522, 179 P. 499, the plaintiff miner sought recovery
for personal injury alleged to have been suffered through the
negligence of the defendants in the course of plaintiff's
employment as a miner. The claim of plaintiff in Shea is
directly comparable to the present case. Plaintiff contended
that the limited right of recovery through the Industrial
Accident Board deprived him of access to the courts as
guaranteed under the constitution. This Court stated the
contention of the plaintiff as follows:
" [Wle gather from the brief of counsel that their
objection is that, though the Act is elective, it
in effect closes access to the courts by the
injured employee and compels him to seek relief, if
he can obtain any at all, through the Industrial
Accident Board. In other words, since the section
declares in expressed terms that there shall be a
judicial remedy for every wrong suffered by one
person at the hands of another, it is beyond the
power of the legislature to provide any other
remedy, though such other remedy is entirely
optional." Shea, 55 Mont. at 530, 179 P. at 501.
In response to this contention, the Court then reached a
conclusion directly contrary to the holding of the majority
in the present case. This Court stated:
"But counsel are in error in supposing that for
this reason the Compensation Act is repugnant to
the section of the Constitution quoted. Their
contention is based upon a misconception of the
scope of the guaranty therein contained. A reading
of the section discloses that it is addressed
exclusively - - courts. The courts are its sole
to the
subject matter, and it relates directly to the
duties of the judicial department of the
government. It means no more nor less than that
under the provisions of the Constitution and laws
constituting them, the courts must be accessible to
all persons alike, without discrimination, at the
time or times and the place or places appointed for
their sitting, and afford a speedy remedy for every
wrong recognized by law as being remediable in a
court. The term 'injury' as therein used, means
such an injury as the law recognizes or declares to
be actionable. Many of the state Constitutions
contain similar provisions, and the courts,
 including our own, have held either expressly or
impliedly that their meaning is that above stated.
(cases cited) ...
[Alt this late day it cannot be
controverted - - remedies recogn=ed
that the & t E
common law in this class of cases, together with
all rights of action to arise in future may be
altered - abolished - - extent - destroying
or to the of
actions - injuries - death arising from
for or
negligent accident, so long - there - no
as is
impairment - rightsalready
of accrued. T~ G
necessarily follows from the proposition, well
established by the courts everywhere, that no one
has a vested right in any rule of the common-law."
Shea, 55 Mont. at 532-34, 179 P. at 502-03.
(emphasis added)
The holdinq in Shea was restated in Reeves v. Ille
Electric Company (1976), 170 Mont. 104, 551 P.2d 647.
Plaintiff sought damages for the death of a student
electrocuted in a whirlpool bath in the Montana State
University Fieldhouse at Bozeman. The architect and the
builder contended that plaintiff was barred from suit under
an architects and builders statute, which limited actions for
damages to commencement within ten years after completion of
the improvement. Plaintiff contended that the statute was
unconstitutional under "Section 16" because it denied the
plaintiff access to the courts and a speedy remedy for
in-juries and damages. This Court quoted the above portions
of the Shea opinion, as well as other provisions, then
concluded:
"Assuming arguendo, that plaintiff would have a
claim under common law, the legislature - - is not
constitutional1 rohibited from eliminatinq a
common law rigit sa
' it did in Shea and ~tewarf
[Stewart v. Standard Publishing Co. (1936), 102
Mont. 43, 55 P.2d 694.1 In Section 93-2619, the
legislature did not interfere with any vested right
of plaintiff, but simply cut off accrual of the
right to sue after ten years." 170 Mont. at
110-111, 551 P.2d at 651. (emphasis added)
In Reeves, this Court affirmed the judgment of dismissal
in favor of the architect and the summary judgment in favor
of the electrical contractor, thereby affirming the statement
in Shea that the legislature may eliminate a remedy
recognized by the common law, together with all rights of
action for an injury or death, nothwithstanding the
constitutional provisions of "Section 16."
This Court again considered the question in Linder v.
Smith (1981), Mont . , 629 P.2d 1187, 38 St.Rep. 912,
in which the plaintiff sought a determination of the
constitutionality of the Montana Medical Malpractice Panel
Act. The plaintiff contended that the effect of the Act was
to deny him right of access to the courts in violation of
"Section 16" of the Constitution. In holding against the
plaintiff on this issue, this Court stated:
"The courts addressins this issue have noted that
access to - courts - - - independent
the is not an
fundamentT1 right; access js only given such a
status when another fundamental right - such as the
right to dissolve the marital relationship - is at
issue, and no alternative forum exists in which to
enforce that right. Boddie v. Connecticut (1971),
401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113. In
cases not involving a fundamental right, access may
be hindered if there exists a rational basis for
doing so. Woods [v. Holy Cross Hospital (5th Cir.
1979) , 591 F. 2d 11641 ; Paro [v. Longwood Hospital
(Mass. 1977), 369 N.E.2d 9851; Ortwein v. Schwab
(1973), 410 U.S. 656, 93 St.Ct. 1172, 35 L.Ed.2d
572." Linder, 629 P.2d at 1190, 38 St.Rep. at 915.
(emphasis added)
Up to 1981, the holdings of this Court were consistent
in the interpretation of the 1889 constitutional Article 111,
Section 6 and the 1972 constitutional Article 11, Section 16.
We would also note that by enactment of the original
provisions of the 1889 Constitution in 1972, the
Constitutional Convention is considered to have adopted the
interpretations of those constitutional provisions by the
Montana Supreme Court. A general rule is stated in 16 C. J.S.
Constitutional Law 535 (1956):
"Where a constitutional provision similar ox
identical to that contained in a prior constitution
or statute, or in the constitution of another
state, is adopted, it is presumed that such
provision was adopted with the construction
previously placed on it."
 No Montana case has addressed the question of a prior
constitutional provision. With regard to the theory of
statutory interpretation and approval- of prior
interpretations, 2A C. Sands, Sutherland Statutory
Construction S45.12 (4th ed. 19731, p. 37:
"Judicial interpretation of statutes is conditioned
by various additional presumptions which the courts
indulge on the basis of a belief in their essential
reasonableness. Thus, legislative language will be
interpreted on the assumption that the legislature
was aware of existing statutes, the rules of
statutory construction, and judicial decisions that
if a change occurs in legislative language a change
was intended in lesislative result, and that
reenactment of a statute without change - - in its
language indTcaces approval of interpretations
rendered o r - - reenactment.
to the On similar
grounds, it is not presumed that the common law is
changed by statutory enactment; and statutes in
derogation of the common law are strictly
construed." (emphasis added)
This rule of statutory construction is applicable to the
interpretation of the constitutional provisions of Montana.
See State v. Cardwell (1980), Mont . , 609 P.2d 1230,
1232, 37 St. Rep. 750, 751-752; Keller v. Smith (1976), 170
Mont. 399, 404, 553 P.2d 1002, 1006; School Dist. No. 12,
Phillips County v. Hughes (19761, 170 Mont. 267, 552 P.2d

In Corrigan v. Janney (1981), Mont , 626 P.2d
838, 38 St.Rep. 545, which was decided two months prior to
Linder v. Smith, we find a contradictory position to have
been taken by this Court. In Corrigan, pertaining to the
electrocution of a man in a bathtub, we reached the decision
which is relied upon by the majority. After quoting "Section
16" with regard to speedy remedy, we (including the
undersigned) stated :
"It would be patently unconstitutional to deny a
tenant all 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 wrongful death.

"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 survival damages." Corrigan, 626 P.2d at
840-841, 38 St.Rep. at 548-549.
Unfortunately, in Corrigan we failed to analyze any of
the above-cited cases, and also failed to distinguish or
overrule the same. In addition, we did not consider the
effect of reenactment of "Section 16" in the 1972
Constitution. Unfortunately our constitutional statements in
Corrigan were not supported, and we could have overruled Dier

- Mueller without a constitutional foundation.
v. It now

becomes particularly unfortunate when the unsupported holding
of Corrigan is expanded to form the foundation for the
present majority opinion.
Section 2-9-104, MCA, adopted in 1977, with a
modification by amendment in 1979, has been found
unconstitutional by the majority opinion. It is important to
analyze the history and background of this section. It was
enacted as a result of power given to the Legislature under
Article 11, Section 18 of the Montana Constitution. As
originally adopted in 1972, Section 18 said only the
following:
"The state, counties, cities, towns, and all other
local governmental entities shall have no immunity
from suit for injury to a person or property."
The proceedings of the Constitutional Convention show an
almost universal approval of total elimination of sovereign
immunity. However, that viewpoint was expressly rejected by
the vote of the people. An amendment was proposed by Senate
Joint Resolution No. 64, laws of 1974, which was adopted by
the people at the general election of November 5, 1974. The
amendment added the following exception to Section 18:
". . . except as may be specifically provided by
law by a 2/3 vote of each house of the
legislature."
The grant of power to the Legislature contained in that
exception was made two years after the Constitutional
Convention, and is the most recent expression contained in
the Constitution of the will of the majority of the voters of
Montana regarding sovereign immunity. Following this
referendum vote, in 1977 the Legislature by a 2/3 vote of
both houses adopted Section 2-9-104, MCA. In a similar
manner, it amended that section in 1979. There must be a
balancing of Sections 16 and 18, Article I1 of the Montana
Constitution. "All constitutional provisions have equal
dignity." 16 C.J.S. Constitutional Law S23. Unless Section
2-9-104, MCA violates federal constitutional provisions, I do
not see how the majority can disregard Section 18 and
conclude that "Section 16" grants remedies which
unquestionably override the specific grant of legislative
authority in Section 18.
The test to be applied to determine if equal protection
has been given was recently enunciated in Matter of Estate of
Merkel (1980) Mont . , 618 P.2d 872, 874, 37 St.Rep.

"The legislature is empowered to classify persons
for purposes of legislation, State v. craiq (1976),
169 Mont. 150, 156, 545 P.2d 649, 653, and in
reviewing a statute, this Court pre.sumes that the
statute is constitutional. Great Falls - -
Nat. Bk.
v. McCormick (1968) 152 Mont. 319, 323, 448 P.2d
991, 993. Appellant admits that this
classification does not involve a 'fundamental
right' or a 'suspect class ' , which would require a
finding by this Court of a compelling state
interest in order to uphold the class. State v.
Jack (1975), 167 Mont. 456, 461, 539 P.2d 726, 729.
Rather, this Court need only determine that the
'classification [is] reasonable, not arbitrary, and
must rest upon some ground of difference having a
 fair and substantial relation to the object of the
legislation, so that all persons similarly
circumstanced shall be treated alike. .I .
State v. Craig, supra, 169 Mont. at 156, 545 P.2d
at 653.
"The appellant has the burden of proving that the
classification is arbitrary, State v. Jack, supra,
167 Mont. at 461, 539 P.2d at 729, a burden which
appellant has not sustained here."
In accordance with the constitutional provisions and
interpretations of this Court as previously cited, I would
hold that "Section 16" does not contain a grant of a
fundamental right. As a result the plaintiff has the burden
of proving that the classification is arbitrary. Plaintiff
has not met that burden. In view of the provisions of Article
11, Section 18 of the Montana Constitution, under which the
Legislature was specifically granted the right to provide for
sovereign immunity by a 2/3 vote of each house, I would.
reverse the District Court's holding that Section 2-9-104,
MCA, is unconstitutional. Examples of statutory limitations
on damage awards which have withstood equal protection
challenges are contained in the following: Sambs v. City of
Brookfield (1980) 97 Wis.2d 356, 293 N.W.2d 504,cert. denied,
449 U.S. 1035, 101 S.Cf;, 611, 66 L.Ed.2d 497; Estate of
Cargill v. City of Rochester (1979) 119 N.H. 661, 406 A.2d
704, appeal dism'd. 445 U.S. 921, 100 S.Ct. 1304, 63 L.Ed.2d
754; State v. Silva, (1971) 86 Nev. 911, 478 P.2d 591;
L
-4-ii.1&
Siefert v. Standard Paving Co. (1976) 64 I11.2d 109, 355
N.E.2d 537; and Johnson v. St. Vincent Hospital, Inc. (1980)
Ind. , 404 N.E.2d 585. Based upon the rules
described in the majority opinion, I conclude that the right
to bring the present civil action for personal injuries is
not a fundamental right and that the rational basis test
therefore should be applied. I would find that there is a
rational basis for the distinction between non-economic
I . ' . L , .

damages and economic damages as contained in section 2-9-104,
MCA .
Further, even if we accept the majority conclusion that
there has been a denial of equal protection under the United
States Constitution, a different conclusion should be
reached. The strongest argument under the majority theory is
the claim of discrimination between those who suffer economic
damages and those who suffer non-economic damages. Having
reached the conclusion that the classification between those
two types of damages justifies a declaration of
unconstitutionality under the equal protection clause, the
majority could still give effect to the intent of the
Legislature. This could be done without a declaration that
the entire section is unconstitutional. This Court has
previously held that if a part of a statute is invalid but
severable, the portion which is constitutional may stand
while the unconstitutional part is stricken. In Montana
Auto. Assln v. Greely (1981) Mont. , 632 P.2d 300,
311, 38 St.Rep. 1174, 1187, this Court stated:
"If an invalid part of a statute is severable from
the rest, the portion which is constitutional may
stand while that which is unconstitutional is
stricken out and rejected. State v. Fire
Department Relief Association, Etc. (1960) 138
Mont. 172, 178, 355 P.2d 670, 6 7 3 7 statute 'is
~
not destroyed in toto because of an improper
provision, unless such provision is necessary to
the integrity of the statute or was the inducement
to its enactment.' Hill v. Rae (1916), 52 Mont.
378, 389-90, 158 ~ 7 8 2 6 ,831. If, when an
unconstitutional portion of an act is eliminated,
the remainder is complete in itself and capable of
being executed in accordance with the apparent
legislative intent, it must be sustained.
Gullickson v. Mitchell (1942), 113 Mont. 359, 375,
126 P.2d 1106, 1114."
Applying this principle to section 2-9-104, MCA, we find that
it is possible to eliminate from section 2-9-104, MCA, those
portions which are lined through, leaving the balance of the
section capable of execution in accordance with the apparent
legislative intent. The following sets out such changes
which could be made in section 2-9-104, MCA:
"(1) Neither the state, a county, municipality,
taxing district, nor any other political
subdivision of the state is liable in tort action
fort

fbj--Eeenemie damages suffered as a result of an
act or omission of an officer, agent, or employee
of that entity in excess of $300,000 for each
claimant and $1 million for each occurrence.
(2) The legislature or the governing body of a
county, municipality, taxing district, or other
political subdivision of the state may, in its sole
discretion, authorize payments for nen-eeenemie
damages-er-eee~em*e damages in excess of the sum
authorized in subseetie~-4&+4bj-eg this section, e~
bethi upon petition of plaintiff following a final
judgment. No insurer is liable for such
en-eeenemie damages er eneess eeenemie damages
unless such insurer specifically agrees by written
endorsement to provide coverage to the governmental
agency involved in amounts in excess of the
limitations stated in this section, er speeihiea&&y
agrees te previde eeverage fer ne~-eee~emie
damages? in which case the insurer may not claim
the benefits of the limitations specifically
waived. "
If we were to eliminate the portions of the section
which are lined through, the remaining portion contains the
essential elements of the section, that being that the State
or other political subdivision is not liable in tort action
for damages in excess of $300,000 for each claimant and one
million dollars for each occurrence, with the further
provisions as to legislative authorization of payments or
payments under insurance coverage which may exceed the
previous limits. It seems to me that we can properly
conclude that this is the action which the Legislature would
have taken had it been aware of a constitutional limitation
on its right to exclude non-economic damages. Certainly such
an interpretation recognizes legislative intent as contrasted
to a declaration of unconstitutionality for the entire
section. In addition such an interpretation recognizes the
right on the part of the people of Montana to allow some

degree of sovereign immunity as contrasted to the
reinstatement of a ban on sovereign immunity.

I concur in the foregoing dissent of Justice Weber.

"p&.$\.Wd&9
Chief Justice