Pfost v. State

No. 85-07
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985

RICHARD B. PFOST,
Plaintiff and Respondent,

THE STATE OF MONTANA, MISSOULA COUNTY,
and MINERAL COUNTY, political subdivisions
of the State of Montana,
Defendants and Appellants.

APPEAL FROM: District Court of the Fourth Judicial District
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
J. Michael Young argued, Dept. of Administration,
Helena, Montana
Clayton Herron, Dept. of Administration, Helena
Boone, Karlberg & Haddon; Randy J. Cox argued for
Missoula County, Missoula, Montana
M. Shaun Donovan, Mineral County Attorney, Superior,
Montana
For Respondent:
Green, MacDonald & Kirscher; Joan B. Nehman argued for
Pfost, Missoula, Montana
For Amicus Curiae:
Hon. Mike Greely, Attorney General, Helena, Montana
Goetz, Madden & Dunn; James Goetz argued for Leslie
Erickson, Bozeman, Montana
Michael W. Flanigan, for Erickson, Anchorage, Alaska
Crohley Lan Firm; Randall Bishop for Oscar L.
Heinrich, Jr., Billings, Montana

Submitted: August 29, 1985
Decided: December 31, 1985

Filed:

Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

We hold in this case that 2-9-107, MCA, is
unconstitutional, insofar as it limits the liability of the
State or any political subdivision in tort actions for
damages suffered from an act or omission of an officer,
agent, or employee of the entity to amounts not in excess of
$300,000 for each claimant and $1,000,000 for each

occurrence.
Richard B. Pfost filed his complaint in the District
Court, Fourth Judicial District, Missoula County, for
personal injuries that he alleged were due to the negligence
of the State of Montana, Department of Highways, Montana
Highway Patrol, and Missoula and Mineral Counties. Mineral
County was subsequently dismissed from the suit.
Pfost alleged that on April 6, 1981., he was driving a
1977 Peterbilt tractor on Interstate 90 about 23 miles west
of Missoula when he encountered a bridge on Nine Mile Hill.
The bridge was extremely icy, dangerous and hazardous and had
been left in such a condition for several hours. He alleged
no precautions were taken by defendants despite the fact that
three separate wrecks had occurred prior to Pfost's arrival.
Pfost lost control of his rig, crashed through the guardrail,
and plummeted over the west bank of the bridge. He sustained
a broken neck and is now a quadriplegic. He seeks
compensatory damages of $6 million.
On the same day as his complaint for personal injuries,
Pfost filed an action for declaratory judgment in the same
District Court alleging that 5 2-9-107, MCA, is
unconstitutional. The District Court, after holding a
hearing and accepting briefs on the question of declaratory
relief, granted Pfost's motion for summary judgment and
declared 2-9-107, MCA, unconstitutional. The State and
Missoula County appealed that ruling to this Court.

A review of the history in Montana of state governmental
immunity in tort actions is helpful for perspective in this
case.
There was no provision in the 1889 Montana Constitution
directly bearing on governmental immunity. In Art. VII, 5 20
of that Constitution, it was provided that ". . . no claim
against the state, except for salaries and compensation of
officers fixed by law, [should] be passed upon by the
legislative assembly without first having been considered and
acted upon by [the Board of Examiners]," which then consisted
of the Governor, the Secretary of State, and the Attorney
General. 1889 Mont. Const., Art. VII, S 20. It was held
that Art. VII, 20 of the 1889 Constitution applied to
unliquidated claims. State ex rel. Schneider v. Cunningham
(1909), 39 Mont. 165, 172, 101 P. 962, 963.
In 1907, the legislature provided a method for

presenting unsettled claims against the state. Any person
having a claim, the settlement of which wa.s not otherwise
provided for by law, was required to present the same to the
Board of Examiners, at least two months before the
legislative assembly, accompanied by a verified statement
showing the facts constituting the claim. The Board of
Examiners was to examine such claims and make a report to the
legislature as to the facts found and its recommendations.
It was then up to the legislature, if it accepted a claim, to

make an appropriation for its payment. Once the claim wa.s
rejected either by the Board or by the legislature, a demand
could not be made against the State again. There was,
however, an appeal from an adverse decision of the Board to
the legislative assembly itself. See sections 242 to 248
inclusive, R.C.M. 1935.
The view of this Court respecting state immunity was
expressed in Mills v. Stewart (19261, 76 Mont. 429, 436, 247
P. 332, 333. That case involved the tort claim of George
Rietz, a student at the State University at Missoula, who had
stepped through a door leading to an elevator shaft instead
of to a bathroom as he surmised. He received injuries which
were the basis of his claim against the State.
This Court sa.id:
"If the contention advanced by Rietz is well
founded in fact, his injuries resulted proximately
from the negligence of the person responsible for
the care and management of the dormitory building,
and against such person he has a valid, legal claim
which he might enforce in an appropriate action at
law. The dormitory building is the property of the
state, and the state is charged with its management
and control, and, while it does not have any moral
right to commit a tortious act, it has the same
capacity to do so as any other corporation.
(Citing authority.) The maxim of the English law,
'the King can do no wrong,' does not find. a place
in the jurisprudence in this country. (Citing
authority.) The state, like any other corporation,
can act only through its agents, and if the state
of Montana were a private corporation, it would be
responsible to Rietz in an action at law for the
damages resulting proximately from the negligence
of its agent in charge of the dormitory building.
Eut the state is a public corporation, and out of
considerations of public policy the doctrine of
respondeat superior- does not apply to it unless
assumed voluntarily. In other words, the state is
not liable for the negligent acts of its agents
unless through the legislative department of
government it assumes such liability." 76 Mont. at
435-36, 247 P. at 333.
In Mills, this Court held that the appropriation of
money to pay the Rietz's claim was an appropriation for a
public and not a private purpose and therefore met the
requirements of the 1889 Montana Constitution.
Under this system of acting on tort claims against the
State submitted by the Board of Examiners, the legislature
found itself in the unpalatable position of acting as judge,
jury, and responsible party in determining and settling such
tort claims. See for example, claim of Chamberlain, House
Bill no. 55, at 1110, Laws of Montana (1959); claim of
Jenkins, House Bill no. 458, at 901, Laws of Montana (1965) .
The sovereign immunity of the State was construed by
this Court to prevent suits against officers or agents of the
State individually when acting in their official capacity.
In a claim and delivery action against the Fish and Game
commissioners, a game warden and a deputy game warden, in
their official capacities, to recover a confiscated shotgun,
the suit was an - delicto action against the State and could
ex
not be maintained where the State had not consented to be
sued. Heiser v. Severy (1945), 117 Mont. 105, 158 P.2d 501.
The blanket immunity that was extended to the State, its
officers, agents and employees by court decisions was not
complete for counties, cities, or other entities which had
authority less extensive than the State. For school
districts and counties, it made a difference whether the
activity of the district or county which gave rise to the
tort action was considered governmental or proprietary.
Cities did not enjoy immunity from suits, even if the tort
arose from what would be considered governmental operations.
Thus, a city could be sued for injuries resulting from its
failure to exercise an active vigilance to keep all of its
streets in a safe condition suitable for public use, and to
avoid the accumulation of snow and ice. O'Donnell v. City of
Butte (1922), 65 Mont. 463, 211 P. 190. A city's liability
for keeping the streets reasonably safe could not be
delegated to the abutting landowner. Headley v. Hammon
Building, Inc., et al. (1934), 97 Mont. 243, 33 P.2d 574.
This Court explained the historical reasons for extending
immunity to counties from tort actions but not to cities in
Johnson v. City of Billings. et al. (1936), 101 Mont. 462, 54
P.2d 579. Nonetheless, while the city acted in its
proprietary capacity in maintaining a fire department, when
fireman were actually engaged in the performance of their
duties as such, they were acting in a governmental capacity
and in such cases the city was not liable for their torts.
State ex rel. Kern v. Arnold (1935), 100 Mont. 346, 49 P.2d
976.
The county was held liable to suit for tort on the
ground that maintaining a ferry across the Missouri River was
a proprietary function. Jacoby v. Chouteau County (1941),
112 Elont. 70, 112 P.2d 1068. Likewise a county, working
iointly with a city in the construction of a drain ditch, was
acting in a proprietary function, and liable in a tort action

although the action arose from the repair of a road which
might ordinarily be considered a governmental function.
Johnson v. City of Billings, supra.
In Longpre v. School District No. 2 (1968), 151 Mont.
345, 443 P.2d 1, it was held that governmental immunity of a
school district to tort action was waived by the legislature
when it required school districts to purchase bodily injury
and liability insurance in the operation of school buses to
transport school children.
In 1963, the legislature adopted section 40-4402, R.C.M.
1947, which provided that when an insurer insured any
political subdivision of the state, municipality, or any
public body for casua.lty or liability insurance, neither the
insured nor insurer could raise the defense of immunity from
suit in a damage action brought against the insured or
insurer. This statute provided that if the defendant could
have successfully raised the defense of immunity, and the
verdict exceeded the limits of applicable insurance, the
court had the power to reduce the amount of judgment against
the defendant to a sum equal to the limits stated in the
policy. In Boettger v. Employers Liability Assurance Corp.
(1971), 158 Mont. 258, 490 P.2d 717, this Court stated. that
if the amount of liability after jud-gmentexceeded the amount
of insurance, the policy should be delivered by the claimant
to the District Court to apply the limitation required by §

40-4402.
In Cassady v. City of Billings (1959), 135 Mont. 390,
340 P.2d 509, it was conceded that the operation of an ice
skating rink by a city was a proprietary function, but this
Court held against the plaintiff on other grounds.
Such was the state of the law when the framers met in
1972 to consider a new Montana Constitution. The state and
its agents enjoyed. total immunity from suit for tort action
unless a policy of liability insurance existed which covered
the activity giving rise to the tort. In that event the
insured could not raise the defense of immunity, and the
District Court after judgment could reduce the iudgment to
the amount of available insurance.
Counties enjoyed complete immunity for governmental
functions but not for proprietary functions. Cities did not
enjoy immunity. Any governmental agency whose authority was
less extensive than the state could protect itself by
obtaining liability insurance, and if the entity was entitl-ed
to immunity in the particular field, again the District Court
could reduce any judgment to a figure within the limits of
the insurance coverage.
In 1972, the constitutional framers swept aside all

notions of governmental immunity, and provided in the
original version of Art. 11, § 18, 1972 Montana Constitution
the following:
"Section 18. State Subject - -
to Suit. The state,
counties, cities, towns, and all other local
governmental entities shall have no immunity from
suit for injury to a person or property. This
provision shall apply only to causes of action
arising after July 1, 1973."
If there was any doubt as to the intentions of the
framers with respect to the language of Art. 11, § 18, that
doubt was removed by this Court in No11 and Keneady v.
Bozeman (1975), 166 Mont. 504, 534 P.2d 880. There this
Court said:
"A reading of the record of the 1972 Constitutional
Convention clearly indicates the framers intended
to provide redress for all persons, whether victims
of governmental or private torts. In referring to
the concept of sovereign immunity the Bill of
Rights Committee reported to the Convention:
'The committee finds this reasoning repugnant to
the fundamental premise of the American justice:
all parties should receive fair and just redress
whether the injuring party is a private citizen or
a governmental agency.'
"The chairman of that committee, speaking from the
Convention floor, told the delegates:
'We submit it's an halienable right to have remedy
when someone injures you through negligence and
through wrongdoing, regardless of whether he has
the status of a governmental servant or not.'" 166
Mont. at 507-08, 534 P.2d at 882.
On November 5, 1974, at its general election, the people
of the State of Montana amended Art. 11, S 18, by adopting
proposed constitutional amendment No. 2 by a vote of 108,704
to 76,252. After the adoption of the Constitutional
amendment, effective July 1, 1975, Art. 11, § 18, of the 1972
Montana Constitution now reads as follows:
"Section 18. State Subiect - -
to Suit. The state,
counties, cities, towns, and all other local
governmental entities shall have no immunity from
suit for injury to a person or property, except as
may be specifically provided by law by a 2/3 vote
of each house of the legislature."
In 1977, the legislature adopted § 2-9-104, MCA, which
provided a limitation in government liability for damages and
tort as follows:
"2-9-104. Limitation on governmental liability for
damages - t~rt--~etitTon
in for relief - excess of
in
limits. ( 1.)
. Neither the state, a county,
municipality, taxing district, nor any other
political subdivision of the state is liable in
tort action for:
" (a) noneconomic damages; or
" (b) economic damages suffered as a result of an
act or omission of an officer, agent, or employee
of that entity in excess of $300,000 for each
claimant and $1 million for each occurrence.
"(2) The legislature or the governing body of a
county, municipality, taxing district, or other
political subdivision of the state may, in its sole
discretion, authorize payments for noneconomic
damages or economic damages in excess of the sum
authorized in subsection (1)(b) of this section, or
both, upon petition of plaintiff following a final
judgment . No insurer is liable for such
noneconomic damages or excess economic damages
unless specifically authorized in the contract of
insurance."
The validity of 5 2-9-104, MCA, came before us in White
v. State of Montana (Mont. 1983), 661 P.2d 1272, 40 St.Rep.
507. This Court held that the limitations of state liability
provided in 2-9-104 were unconstitutional. We shall
discuss this case later in this opinion.
Within two weeks after our opinion jn White v. State,
.
supra, the legislature met and passed, and the Governor
signed 2-9-107, MCA, the language of which we set out
hereafter. It should be mentioned that a further provision
of a the new law provides that § 2-9-107 is to apply
retroactively "to all claims, lawsuits and causes of action
arising after July 1, 1977." (Ch. 675, S 7, Laws of Montana
(1983).) Section 2-9-107 became effective on April 29, 1.983.

11.
The words and figures of S 2-9-107, MCA, the statute we
today find invalid, follow:
"2-9-107. Limitation on governmental liability -
for
damages - -
in tort. (1) Neither the state, a county,
municipality, taxing district, nor any other
~olitical subdivision of the state is liable in
*
tort action for damages suffered as a result of an
act or omission of an officer, agent, or employee
of that entity in excess of $300,000 for each
claimant and $1 million for each occurrence.

" (2) No insurer is liable for excess damages
unless such insurer specifically agrees by written
endorsement to provide coverage to the governmental
agency involved in amounts in excess of a
limitation stated in this section, in which case
the insurer may not claim the benefits of the
limitation specifically waived."
On its face, the statute is discriminatory. That point
should be beyond argument. It discriminates in that any
person who sustains damages of less than $300,000 in value
will be fully redressed if the tortfea.sor is the State, but
any person with catastrophic damages in excess of $300,000
will not have full redress. Of course, if the statute were
not discriminatory, there would be no need for any further
inquiry into its constitutionality. There is tacit
concession on all sides, however, that because the statute
prevents full redress for those persons whose damages exceed
$300,000 in state tort actions, an equal protection inquiry
is triggered. For that reason the State and County have
principally based their contentions here on whether §

2-9-107, MCA, can be found valid either on rationality or on
both rationality and compelling state interest
considerations.
Art. 11, 5 4, of our State Constitution provides in part
that "[nlo person shall be denied the equal protection of the
laws." Art. 11, S 4, 1972 Mont. Const. That provision of
our State Constitution, though similar in wording to the last
clause of the Fourteenth Amendment of the Federal
Constitution provides a separate ground on which rights of
persons within this state may be founded, and under accepted
principles of constitutional law such rights must be at least
the same as and may be greater than rights founded on the
federal clause. Thus, states may interpret their own
constitutions to afford greater protections than the Supreme
Court of the United States has recognized in its
interpretations of the federal counterparts to state
constitutions. City and County of Denver v. Nielson 11977) ,
194 Colo. 407, 572 P.2d 484. Federal rights are considered
minimal and a state constitution may be more demanding than
the equivalent federal constitutional provision. Washakie
Co. Sch. Dist. No. One v. Herschler (Wyo. 1980), 606 P.2d
310, cert.den. 449 U.S. 824, 101 S.Ct. 86, 66 Ir.Ed.2d 28.
This is true even though our state constitutional language is
substantially similar to the language of the Federal
Constitution. Deras v . Myers (1975), 272 Or. 47, 535 P.2d
541, 549 n.17.
This is not to say that we fear that a different result
would be demanded in this case if we founded our
constitutional interpretation of S 2-9-107, MCA, strictly
upon the equal protection clause of the Fourteenth Amendment
of the Federal Constitution. What we advance here is that we
have state constitutional provisions which, properly
interpreted, command the result that we reach today and that
such result, founded on state constitutional interpretation,
does not countervail the minimal federal rights guaranteed by
the Fourteenth Amendment.
It is perfectly proper for us to use criteria developed
in federal cases to determine whether our state statute
passes equal protection muster under our State Constitution.
Thus we determine first whether the challenged statute
affects a fundamental interest, see for e.g. Dunn v.
Blumstein (1972), 405 U.S. 330, 336-42, 92 S.Ct. 995,
999-1003, 31 L.Ed.2d 274, 280-84; Shapiro v. Thompson (1969),
394 U.S. 618, 629-31, 89 S.Ct. 1322, 1328-30, 22 L.Ed.2d 600,
612-13; or contains a classification based upon a suspect

criterion, see, e.g., Graham v. Richardson (1971), 403 U.S.
365, 91 S.Ct. 1848, 29 L.Ed.2d 534; McLaughlin v. ~ l o r i d a
(1964), 379 U.S. 184, 191-92, 85 S.Ct. 283, 288-89, 13
L.Ed.2d 222, 228-29. If so, the state must show a compelling
state interest to sustain such a statute. If instead the
statute involves only a regulation of economic or commercial
matters, e.g. Western and Southern Life Insurance Company v.
State Board of Equalization (1981), 451 U.S. 648, 101 S.Ct.
2070, 68 L.Ed.2d 514; Minnesota v. Clover Leaf Creamery
Company (1981), 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659,
the lenient standard of rationality is applied. Such fed-era1
criteria are routinely used to determine equal protection
questions under state constitutions. For example, in
Washakie Co. Sch. Dist. No. One v. Herschler, 606 ~ . 2 dat
333, it is stated:
"The reasoning which we approve of and which we
have applied to the instant case involves two
different tests which are designed to determine if
statutory classifications meet equal protection
requirements. The first test is employed where the
 interest affected is an ordinary one and the second
where fundamental interests are at issue. When an
ordinary interest is involved, then a court merely
examines to determine whether there is a rational
relationship between a classification made by the
statute or statutes being viewed, and a legitimate
state objective. When a fundamental interest is
affected or if a classification is inherently
suspect, then the classification must be subjected
to strict scrutiny to determine if it is necessary
to achieve a compelling state interest. In
addition, this test requires that the state
establish that there is no less onerous alternative
by which its objective may be achieved."

Missoula County concedes in its brief that ". . . it is
established that, in Montana, the right to bring a civil
action for personal injuries is a fundamental right." White
v. state of Montana (1983), 661 P.2d 1272, 40 St-Rep- 507.

The State of Montana likewise concedes:
". . . that statutory denial of any right to be
compensated for any component of injury, including
physical pain, mental anguish, loss of enjoyment of
living, would be an effect on a 'fundamental right'
which would be required to be measured by a 'strict
scrutiny' test in order to pass constitutional
muster, and that the Karla White case so held. It
may also be conceded here that in such a case, in
order for the strict scrutiny test to result in a
conclusion of constitutionality, there must be a
demonstration that the law is necessary to promote
a compelling governmental interest, and the Karla
White case ruled that also."
In White we had before us the constitutionality of §

2-9-104, MCA. That statute provided that neither the state
nor any political subdivision of the state was liable in tort
action for noneconomic damages, nor for economic damages in
excess of $300,000 for each claimant and $1 million for each
occurrence. This Court struck down 2-9-104, MCA, as
unconstitutional, holding that the right to bring an action
for personal injuries was a fundamental right and that any
statutory abridgment of that fundamental right must pass the
test of strict scrutiny. We relied on Art. 11, 5 16 of the
1972 Montana Constitution, and upon our decision in Corrigan
v. Janney (Mont. 1981), 626 P.2d 838, 38 St.Rep. 545, to hold
that the right to sue for persona.1 injuries embraced "all
recognized compensable components of injury, including the
right to be compensated for physical pain and mental anguish
and the loss of enjoyment of living." White v. State, 661
P.2d at 1275, 40 St.Rep. at 510. We further found that the
interest of the state in "insuring that sufficient public

funds will be available to enable the State and local
governments to provide those services which they believe
benefit their citizens and which their citizens demand" was a
"bare assertion" which failed to justify a d-iscrimination
which infringed. upon fundamental rights. -
Id.
The pricking point upon which the State and County seek
to distinguish White from the case at bar is that while the
right to sue for personal injuries is a fundamental right,
the right to recover damages is not; or as encapsulated by
the State, the "lower court sustains the proposition that a
monetary limitation as to amount of damage recovery is the
denial of some fundamental right. This is, precisely, the
point at which error is brought into being."
The State contends that there is no fundamental
constitutional right to recover all amounts of damages and
that we cannot create substantive constitutional rights in
the name of guaranteeing equal protection of the laws. It
relies for authority on the case of San Antonio Independent
School District v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct.
1278, 36 L.Ed.2d 16. What the State failed to note, however,
the San Antonio School District case was one in which the
United States Supreme Court examined the Federal Constitution
in the light of the Fourteenth Amendment. In San Antonio
School District, the United States Supreme Court held that
the right to education was not explicitly guaranteed by the
Constitution of the United States. In a later California
case, Serrano v. Priest (1976), 18 Cal.3d 728, 135 ~ a l . ~ p t r .
345, 557 P.2d 929, (rehearing denied as modified 1977),
cert.den. 432 U.S. 907, 97 S.Ct. 2951, 53 L.Ed.2d 1079, the
California Court abandoned Fourteenth Amendment and other
federal concepts because of the decision in San Antonio
School District, and found that under the California
Constitution there was a fundamental right to education which
could not be discriminatorily affected on the basis of
available wealth in taxing districts.
Pertinent to this case are state constitutional
provisions in addition to the equal protection clause found
in Art. 11, 4. The legislature, in enacting S 2-9-107,
MCA, purported to act under Art. 11, § 18 which states:
"The state, counties, cities, towns, and all other
local governmental entities shall have no immunity
from suit for an injury to a person or property,
except as may be specifically provided by a 2/3
vote of each house of the legislature."
However, Art. 11, § 16 of the State Constitution gives a
constitutional right of full legal redress for injury. That
section of the state constitution provides:
"Courts of justice shall be open to every person,
and speedy remedy afforded for every injury of
person, property, or character. No person shall be
deprived of - - legal redress for injury
this full
incurred in employment for which another person may
be liable except as to fellow employees and his
immediate employer who hired. him if such an
immediate employer provides coverage under
Workman's Compensation Laws of this state. . ."
The use of the clause "this full legal redress" has
major significance. It obviously and grammatically refers to
the "speedy remedy afforded for every injury of person,
property, or character. " The adjective "this" means the
person, thing, or idea that is present or near in place, time
or thought or that has just been mentioned. Websterrs New
Collegiate Dictionary (1981) . The constitutional framers
thus construed a "speedy remedy" as comprehending "full legal
redress." A state constitutional right to full legal redress
was thereby created. Any state statute that restricts,
limits, or modifies full legal redress for injury to person,
property or character therefore affects a fundamental right
and the state must show a compelling state interest if it is
to sustain the constitutional validity of the statute.
In enacting 5 2-9-107 the legislature made findings
which the state contends establish a compelling state
interest. It contends that constitutionality must be
presumed, that all facts necessary to susta.in the statute
must be taken as conclusively found by the legislature, that
the correctness of the findings is conclusive unless an abuse
of discretion can be shown and that courts do not have
jurisdiction or power to reopen, correct or make new findings
of fact.
We have shown above that the state constitution provides
a speedy judicial remedy for every injury of person, property
or character, and that such speedy remedy includes a full
legal redress as a fundamental interest. Since a fundamental
interest is involved, 5 2 - 9 - 1 0 7 , MCA, must be subjected to
strict judicial scrutiny in determining whether it complies
with our state equal protection provisions and other
provisions of our State Constitution. Under this standard
the presumption of constitutionality normally attaching to
the state legislative classifications falls away and the
State must shoulder the burden of establishing that the
classification in question is necessary to achieve a
compelling state interest. Serrano, supra, 557 P.2d at 952;
Washakie Co. Sch. Dist. No. One v. Herschler, supra.
We set out here in full the legislative findings
codified in 5 2-9-106, MCA. On these the State relies to
sustain the validity of § 2-9-107:
"2-9-106. Legislative findings. (1) The
legislature recognizes and reaffirms the report of
the subcommittee on judiciary, contained in the
interim study on limitations on the waiver of
sovereign immunity (December 1976) , that unlimited.
liability of the state and local governments for
civil damages makes it increasingly difficult if
not impossible for governments to purchase adequate
insurance coverage at reasonable costs.
"(2) The legislature finds that the obligations
imposed upon governmental entities must be
performed, even though the risks inherent in
performing absolute obligations are great. The
responsibility for confining, housing, and
rehabilitation of persons convicted of criminal
activity; the treatment and supervision of mental
patients at government institutions or under
government programs; the planning, construction,
and maintenance of thousands of miles of highways;
the operation of municipal transportation systems
and airport terminals; and the operation and
maintenance of schools, playgrounds, and athletic
facilities are only a few of those obligations.
"(3) The legislature finds that there are many
functions and services both governmental and
proprietary in nature traditionally offered by the
state and other governmental entities which,
because of the size of government operations and
the inherent nature of certain functions and
services, entail a potential for civil liability
for tortious conduct far beyond the potential for
Liability of corporations and other persons in the
private sector. Despite this potential for
liability unparalleled in the private sector, the
legislature finds that these functions of
government are necessary components of modern life
and that, despite limited resources and competition
for those resources between necessary programs and
entities, all functions and services both
governmental and proprietary in nature are
deserving of conscious and deliberate continuation
or retirement by the people through their elected
representatives. The legislature further finds
that liability for damages resulting from tortious
conduct by a government or its employees is more
than a cost of doing business and has an effect
upon government far beyond a simple reduction in
 governmental revenues. Unlimited liability would,
because of the requirement for a balanced state
budget contained in Article VIII, section 9, of the
Montana constitution and because bankruptcy is a
remedy unavailable to the state and most other
governmental entities, result initially in
increased taxes to pay judgments for damages and
would eventually have the effect of reallocating
state resources to a degree that would result in
involuntary choices between critical state and
local programs. The legislature finds these
potential results of unlimited liability for tort
damages to be unacceptable and further finds that,
given the realities of modern government and the
litigiousness of our society, there is no practical
way of completely preventing tortious injury by and
tort damages against the state and other
governmental entities. The legislature therefore
expressly finds that forced reduction in critical
governmental services that could result from
unlimited liability of the state and other
governmental entities for damages resulting from
tortious conduct of those governments and their
employees constitutes a compelling state interest
requiring the application of the limitations on
liability and damages provided in parts 1 through 3
of this chapter."
Bearing in mind that in White v. State, supra, we upheld
the provisions of § 2-9-105, MCA, to the effect that state
and political entities are immune from awards of punitive
damages, we find. little more in the quoted legislative
findings supporting § 2-9-107 than a legislative plea not to
require the legislature and other political entities to
provide the funds necessary to pay the just obligations of
those entities. In White, we also stated that the payment of
tort judgments by political entities was simply a cost of
doing business. 661 P.2d at 1275, 40 St.Rep. 510. The
legislature in its findings contends that paying a judgment
is more than the cost of doing business, and would, because
of the constitutional requirements of a balanced state budget
"result initially in increased taxes to pay judgments for
damages and would eventually have the effect of reallocating
state resources to a degree that would result in involuntary
choices between critical state and local programs." Section
2-9-106, MCA. That statement is so wild in speculation as to
be on its face unacceptable. Having to provide funds to pay
judgments is not a sufficient excuse logically or legally.
The legislature would place the burden of catastrophic
damages not on the State whose agent caused them, but on the
unfortunate person who received them. If the state
constitutional framers in 1972 were concerned with any
particular subject, they were certainly concerned with the
importance of the individual. They detailed important
individual rights in 35 sections of Art. I1 of the State
Constitution, being careful to provide in S 34 that the
specific enumeration of rights did not "deny, impair, or
disparage other rights retained by the people." The findings
of the legislature denigrate the right of the individual to
full legal redress in favor of not raising taxes. Such a
concept does not constitute either an acceptable or a
compelling state interest.
As we analyze S 2-9-107, MCA, we find little difference
between it and the statute we found invalid in White, that
prohibited recovery against governmental entities for
noneconomic damages. Section 2-9-107, permits some recovery
from noneconomic damages, but limits the amount that can be
recovered. In legal effect, S 2-9-107, is but S 2-9-104 in
another guise. In each case the injured party suffers a
restriction of his right to full legal redress. Our decision
in White therefore controls the outcome of this case--the
legislature has invaded a fundamental right granted to
individuals, and it has not shown a compelling state interest
for doing so.
In addition to the necessity that the State show a
compelling state interest for an invasion of a fundamental
right, the state, to sustain the validity of such invasion,
must also show that the choice of legislative action is the
least onerous path that can be taken to achieve the state
objective. Washakie County, supra. Here the state has not
attempted to make any such showing.
We see no substance in the State's contention, echoed in
the legislative findings, that limitations on damages against
governmental entities are necessary because the functions and
services of such entities "entail a potential for civil
liability for tortious conduct far beyond the potential for
liability of corporations and other persons in the private
sector." Section 2-9-106, MCA. There is no foundation in
fact for such a statement. The federal government carries on
governmental functions and services immensely greater in
complexity and more far flung, yet it provides redress for
victims of federal government torts under the Federal Tort
Claims Act. See 28 U.S.C. 2674. Several large
corporations in this state carry on their business functions
a.nd activities, and respond in full in damages, both
compensatory and punitive, as part of their cost of business.
It is a novel argument indeed for a party to complain that it
is too big and complex, or its employees too poorly trained
and unchecked, for the party to be able to respond in damages
for its tortious acts.
Both the State and the County in this case centered
their arguments on the proposition that there was no
fundamental interest involved in this case and therefore the
Sta.te had only to meet the test of a rational nexus between
the legislation and the state objective in enacting the
legislation. Under the record in this case, we doubt that
the legislation could pass even the lenient rational basis
test but we do not reach that argument here. Since a
fundamental interest is involved, we have examined the case
from the viewpoint that the legislation requires strict
judicial scrutiny to be sustained under our State
Constitution.
Further argument advanced by both the State and the
county is that since the amendment to the immunity cl-ause in
the State Constitution, adopted. by a referendum vote of the
people, empowers the legislature to fix immunity limits by a
two thirds vote of each house of the legislature, that power
is in effect part of the constitution itself and not subject
to challenge.
We reject out of hand that the legislature has the
power, under Art. 11, § 18, as amended, to act under that

amended clause without regard to other provisions of the
State Constitution. We agree with the rationale of the
California Supreme Court in Serrano, supra, where it said:
"It seems to be argued, however, that because
article XXIII, section 21 authorizes the financing
of schools by a county levy of school district
taxes, the Legislature is free to structure a
system based upon this mechanism in any way that it
chooses. Such a notion, we hasten to point out is
manifestly absurd. A constitutional provision
creating the duty and power to legislate in a
particular area al-ways remains subject to general
constitutional requirements governing all
legislation unless the intent of the Constitution
to exempt it from such requirements plainly
appears." 557 P.2d at 956.
 We do not reach, because it is not necessary here,
whether the grant to the legislature under the amended
version of Art. 11, S 18, is an impermissible grant to the
legislature to amend the constitution.
The grounds upon which we hold today that S 2-9-107 is
unconstitutional are somewhat different from those grounds
utilized by the District Court in this case. The result,
however, must be the same under our examination of the
statute. We therefore hold that S 2-9-107, MCA, is an
unconstitutional invasion by the legislature on a fundamental
right granted under the State Constitution to sue
governmental entities for full legal redress.
In view of our decision, it is not necessary to discuss
other issues raised by the parties. The judgment of the

We Concur:

Chief Justice
Mr. Justice Frank R . Morrison, Jr., specially concurs as
follows:

I unequivocally concur in the constitutional analysis

engaged by my learned brother, Justice John C. Sheehy,
speaking for the majority. This specially concurring opinion
is written for the purpose of addressing the dissents of Mr.
Chief Justice J. A. Turnage and Mr. Justice Fred J. Weber.
The Chief Justice has filed a dissent in which he

states:
The majority opinion centers upon Article 11,
Section 16, of the Montana of the 1972 Montana
Constitution ...
The Chief Justice's dissent fails to grasp the

constitutions.,- issue in this case and therefore proceeds upon

a faulty premise. The issue is whether the statute in
question offends Art. 11, Sec. 4, of our State Constitution
which provides in part that "no person shall be denied the
"
equal protection of the 1-aws.
Had the courthouse door been completely closed to Pfost,
then Art. 11, Sec. 16, which forms the core of the Chief
Justice's dissent, would likely be addressed rather than
equal protection. The statute here in question does not
institute a State immunity but rather provides a scheme for
compensating litigants where a limited recovery of $300,000
is afforded. Pfost argues that such a scheme discriminates
against him a.nd denies equal protection of the law. Pfost's
argument has not been addressed by the Chief Justice's
dissent.
The first step in properly analyzing the Pfost claim is
to determine whether the legislation discriminates. Pfost
argues that people with claims worth less than $300,000 are
fully compensated but under the statutory limitation he
receives practically nothing. Pfost is a quadriplegic. The
$300,000 limitation will not pay the medical expenses for his
lifetime. The result of the limitation is that Pfost will
receive nothing for loss of income, destruction of his
established course of life, or for physical pain and mental
anguish.
The statute is facially neutral in that every one
receives the same treatment. All tort victims are limited to
$300,000 in cl-aims against the State of Montana. However,
the statute does have a disparate impact upon people such as
Pfost who suffered catastrophic injuries. The tort victim
who fractures a leg receives full compensation. On the other
hand a quadriplegic, under the limitation imposed, would not
recoup medical expenses and would be denied any compensation
for the other aspects of injury.
In view of the disparate impact suffered by
catastrophically injured tort victims, it seems clear that
Pfost, and those similarly situated, suffer discrimination
under the State limitation. However, discrimination in this
case is not per se unconstitutional. The next step in equal
protection analysis is to determine whether the
discriminatory legislation can he sanctioned without denying
equal protection of the law as it is guaranteed under our
state constitution. In making that determination, we must
decide what level of scrutiny attaches.
Equal protection analysis is usually accomplished by
appellate courts through judging the legislative
classifications using "rationale basis" or "strict scrutiny."
Some courts have engaged a middle tier analysis. In this
case e have adopted the "strict scrutiny" test for the
reason that a fundamental right is implicated in imposing a
$300,000 limitation.
There is no claim in this case that the $300,000
limitation imposed by the legislature violates Art. 11, Sec.
16, of the State Constitution. For that reason the dissent
filed by the Chief Justice just misses the mark.
The only relevance of Art. 11, Sec. 16, is in
determining what ].eve1 of scrutiny to attach in making an
equal protection analysis. We must determine whether the

$300,000 limitation infringes upon rights addressed in Art.
11, Sec. 16. If so, then in making an equal protection
analysis, strict scrutiny attaches and the State must show a
compelling State interest in justification of the limitation.
In White v. State of Montana (Mont. 1983), 661 P.2d
1272, 40 St.Rep. 507, this Court held that Art. 11, Sec. 16,
afforded redress for all aspects of injury including pain and
suffering and that the State Tort Claims Law, which denied
compensation for pain and suffering, would be subjected to a
strict scrutiny analysis.
Art. 11, Sec. 16, provides in relevant part as follows:
Courts of justice shall be open to every person,
and speedy remedy afforded for every injury of
person, property, or character. No person shall be
deprived of this full legal redress ...
In White we determined that the language "every injury"
included pain and suffering and that by denying any
compensation for pain and suffering the State would be
required to show there was a compelling State interest to
justify the denial. In this case, at 1-east arguably, there
is some compensation for every injury. On the face of the
statute one can recover for all legally cognizable elements
of damage but there is a $300,000 cap. The majority has
attempted to determine whether such a limitation affords a
speedy remedy for every injury as that language was intended
in Art. 11, Sec. 16. We looked to the next sentence in the
section which commences "no person shall be deprived of this
full legal redress . . ." The word "this" clearly refers to
an antecedent. When the language of the section is construed
harmoniously, it appears clear that the constitutional
delegates intended that "remedy afforded for every injury"
provides for full legal redress. That intent is made
abundantly clear by the language of delegate DaHood quoted in
the Chief Justice's dissent. DaHood said:
We say, in the first sentence, that every citizen
shall have the right to full legal redress.
Montana Constitutional Convention Transcript, Vol. V at 1757.
The first sentence of Section 16 does not specifically
state that full legal redress is afforded, but the language
found in the next sentence, shows the full breath of the
first sentence's command.
Once we have determined that the $300,000 limi-tation
discriminates against a class including the claimant Pfost
and that such discrimination implicates a fundamental right
found in Art. 11, Sec. 16, we then require the State to
justify the limitation by showing a compelling State
interest. In White v. State, supra, we clearly stated that
saving money did not constitute a compelling State interest.
As in White, no compelling State interest has here been
shown. Therefore, the statute in question fails to pass
constitutional muster and must be stricken. The Chief
Justice, in not addressing the equal protection issue, leaves
us in the dark about whether he would apply a rational basis
test or a middle tier analysis. He does not say if the
present statute would pass either test, and if so, why.
Justice Weber argues that Art. TI, Sec. 18, has
application in this case. That section states:
State subject - -
to suit. The State, counties,
cities, towns, and all other local go~rernmental
entities shall have no immunity from suit for
injury to a person or property, except as may be
specially provided by law by a two thirds vote of
each house of the legislature.
Under this provision of the Constitution, the
legislature is authorized to enact State immunity by a two
thirds vote. Of course, the legislature could do that
anyway. The legislature could. immunize any person or group
of people from tort liability. The only significance of this
constitutional provision is that it requires a two thirds
vote instead of a majority vote in order to immunize the
State of Montana from liability.
Where Justice Weber's dissent goes astray is in failing
to consider that any legislation passed by the legislature
must be subjected to the other provisions of the
Constitution. Certainly the legislation itself does not
become a part of the Constitution and therefore cannot be
balanced against other constitutiona.1 provisions. If the
legislation passed by the legislature violates the equal
protection clause of the Constitution, it still must be
stricken.
I believe the majority opinion is scholarly and
constitutionally sound. However, that opinior, was drafted
prior to the drafting of the dissents. The purpose of this
concurring opinion is to show the weaknesses in the dissents
and reinforce the lucid analysis found in the majority
opinion.
Mr. Chief Justice J. A. Turnage dissenting:
I dissent to the majority opinion. I would hold that
S 2-9-107, MCA, is constitutional and reverse the District
Court.
The majority opinion centers upon Article 11, Section
16, of the 1972 Montana Constitution and its application as
articulated in White v. State of Montana ( ~ o n t .1983), 661

This Court should reexamine its interpretation of
Article 11, Section 16.
Montana's 1889 Constitution, Article 111, Section 6,
provided :
Courts of justice shall be open to every
person, and a speedy remedy afforded for
every injury of person, property, or
character; and that right and justice
shall be administered without sa.le,
denial, or de1a.y.
Montana's 1.972 Constitution, Article 11, section 16,
provides :
Courts of justice shall be open to every
person, and speedy remedy afforded for
every injury of person, property, or
character. No person shall he deprived
of this full legal reeress for injury
incurred in employment for which another
person may be liable except as to fell-ow
employees and his immediate employer who
hired him if such immediate employer
provides coverage under the Workmen's
Compensation Laws of this state. Right
and justice shall be administered with-
out sale, denial, or delay.
The first and third sentence of Article 11, Section 16,
with the exception of the omission of the adjective "a" in
the first sentence, are identical to the 1889 Constitution,
Article 111, Section 6. The drafters of the 1972 Constitu-
tion added only the second sentence of Article 11, Section
 Fo person shall be deprived. of this full
legal redress for injury incurred in
employment for which another person may
be liable except as to fellow employees
and his immediate employer who hired him
if such immediate employer provides
coverage under the Workmen's Compensa-
tion Laws of this state.
A careful examination into the intent of the drafters
of the 1972 Constitution is essential and critical to this
Court's correct interpretation of the second sentence of
Article 11, Section 16. Evidence of their intent is to be
found in official proceedings of the Constitutional
Convention.
The second sentence of Article 11, Section 16, first
appeared at the 1972 Constitutional Convention as delegate
proposal 133 introduced February 3, 1972, and now appears
verbatim as introduced in our Constitution. The proceedings
of the delegates to the 1972 Constitutional Convention relat-
ing to the amendment of Article 111, Section 6, of the 1889
Constitution by the addition of the second. sentence in what
is now Article 11, Section 16, clearly establishes that the
delegates had a singular and sole purpose in this regard: To
assure that no person shall be deprived of full legal redress
for injury incurred in employment for which another person
may be liable.
Examination of the proceedings of the Montana Constitu-
tional Conventj-on from January 17, 1972, to March 24, 1.972,
leaves no doubt as to the delegates' purpose and intent in
Article 11, Section 16, nor does the plain language of this
Article and Section.
On February 22, 1.972, the Bill of Rights Committee
submitted a committee report with these comments:
The commj-ttee voted unanimous1.y to
retain this section with one addition.
The provision as it stands in the
present Constituti.on guarantees justice
and a speedy remedy for all without
sale, denial or delay. The committee
felt, in light of a recent interpreta-
tion of the Workmen's Compensation Law,
that this remedy needed to be explicitly
guaranteed to persons who may be em-
ployed by one covered by Workmen's
Compensation to work on the facilities
of another. Under Montana law, as
announced in the recent decision of
Ashcraft v. Montana Power Co., the
employee has no redress against third
parties for injuries caused by them if
his immediate employer is covered under
the Workmen's Compensation Law. The
committee feels that this violates the
spirit of the guarantee of a speedy
remedy for - injuries of person,
all
property or character. It is this
specific denial--and this one only--that
the committee intends to alter with the
following additional wording: "no person
shall be deprived of this full legal
redress for injury incurred in employ-
ment for which another person may be
liable except as to fellow employees and
his immediate employer who hired. him if
such immediate employer provides cover-
age under the Workmen's Compensation
Laws of this state." In other words the
committee wants to insure that the
Workmen's Compensation Laws of the state
will be used for their original
purpose--to provide compensation to
injured workmen--rather than to deprive
an injured worker of redress against
negligent third parties (beyond his
employer and fellow employees) because
his immediate employer is covered by
Workmen's Compensation. The committee
believes that clarifying this remedy
would have a salutary effect on the
conscientiousness of persons who may
contract out work to be done on their
premises. To permit no remedy against
third parties in cases where the employ-
er is covered by Workmen's Compensation
is to encourage persons with rundown
premises to contract out work without
improving the quality of the premises.
The committee urges that this is an
abuse of the Workmen's Compensation Law
and constitutes a mis-application of
that law to protect persons who are
negligent.
The committee commends this provision to
the convention with the belief that it
 is an important, i.f technical, aspect of
the administration of justice.
Montana Constitutional Convention, Vol. 11, a t 636-367.
.
On March 8, 1972, the Convention resolved itself into a
Committee of the Whole and delegate Murray in recommending
Section 16 of Article I1 stated:
DELEGATE MURRAY: [After reading the
entirety of the above committee report.]
Those are the remarks which are con-
tained in the booklet. Let me amplify
them by saying basically this: we feel
that the right to third party action is
a right which we should establish in our
Constitution. It is a right which
working men and women who are unfortu-
nate enough to be injured have had for
nearly 80 years in this state. We feel
that it was wrongly taken away from
these people by the Supreme Court deci-
sion which was mentioned. We feel that
we perhaps are legislating in asking
that this be written into our Constitu-
tion, but we of the committee really
believe that we are acting in a judicial
manner in asking that it be written in
the Constitution for we feel that this
Convention, perhaps, is the court of
last resort for injured working men and
women in Montana with respect to the
third party lawsuit, and we recommend
that the section be adopted.
CHAIRNAN GRAYBILL : Mrs. B0wma.n.
DELEGATE BOWMAN: Mr. Chairman, I wonder
if Mr. Murray would yield to a question.
CHAIRMAN GRAYBILL: Mr. Murray, will you
yield?
DELEGATE MURRAY: Yes, Mr. Chairman.
DELEGATE BOWMAN: Mr. Murray, I don't
understand what this means and I wonder
if you would explain it, giving us a
specific example of what happened so
we'd know that you're taking about.
DELEGATE MURRAY: Mrs. Bowman, in the
case in question, the--one of the impor-
tant utilities in this state hired a
contractor to repair some of its
powerlines and. the employee of the
contractor that was hired crawled up a
power pole and, while there working on
that pole, it broke and it fell with him
 to the ground and he was injured. In
the case in question, because of the
decision of the Supreme Court, the
injured employee was limited. to Work-
men's Compensation benefits through the
coverage of the contractor. Ordinarily,
if it were not for this interpretation,
the injured employee would be entitled
to sue the important utility in this
state and recover in addition to his
Workmen's Compensation benefits. Those
benefits or a portion of those benefits
recovered under Workmen's Compensation,
were the injured workman--did he--or
were he to make a recovery against the
important utility, would be paid back
under the theory of subrogation to the
Industrial Accident Fund of Montana.
But does that explain basically what
occurred, at least in this one instance?
Montana Constitutional Convention, Vol. V, at 1753-1754.
Delegate Dahood stated:
DELEGATE DAHOOD: Mr. Chairman, I had
intended not to speak on this particular
section simply because I was trial
counsel on behalf of Charles Ashcraft,
who is permanently disabled for the rest
of his life and shall never work at his
trade. 5: have heard this argument in
the Supreme Court, an argument that had
no basis in logic. I have heard it by
several defense counsel who represent
the best of corporate interests, that
thi.s is going to affect the individual
property owner, and if he hires a con-
tractor, he is going to be exposed to a
liability that is unprecedented and they
did not experience before. This is
totally untrue. This section is doing
nothing more, and the wording has been
very precisely selected to make sure
that it does nothing more, than place
the injured working man back in the
status that he enjoyed prior to 1971, a
very basic constitutional right which he
enjoyed for 80 years in the State of
Montana. What happened in the Ashcraft
case? The Montana Trial Lawyers Associ-
ation, 150 members strong, to a man,
without a dissent, believes that this
Constitutional Convention must return
this right to the injured working man.
The unions, without exception, believe
that a very basic right has been taken
away from the injured working man in the
State of Montana, and I understand that
the corporate interest that specifically
are involved in this have decided that
they will not ask anyone to offer oppo-
sition to it on the Convention floor.
Here is what happened in the Ashcraft
case. Charles Ashcraft worked for an
independent contractor having no connec-
tion with the Montana Power Company.
The Montana Power Company made what we
call an independent contract to have a .
new phase placed upon their power poles.
Charles Ashcraft went 35 feet into the
air. He was there for 20 minutes.
Without warning, without any chance to
protect himself, that pole gave way
below ground level and carried Charles
Ashcraft 35 feet to the ground. He was
90-some days in the hospital, but he
survived; but he will not work at his
trade again. What were the real facts?
And keep this in mind: we are only
talking about a situation where someone,
through negligence, through a failure to
use due care, has brought about the
injury. There is nothing automatic.
You may still suffer injury that is not
fault of anyone else--not recover. We
are not talking about that. So what
were the facts? Dr. Clancy Gordon, one
of the environmental advocates, was
retained by us. He is a professor of
botany at the University of Montana. He
examined the pole and found several
apparent things about it. One, it
violated the statute of the State of
Montana that's been on the statute books
for more than 50 years, that power
companies must construct their poles of
cedar-quality or other standardized
material. This was a lodgepole pine; it
was not as required by statute. This
was a lodgepole pine that has a useful
life of from 17 to 20 years at the most.
This pole had been in place for more
than 23 years and had not been inspected
for more than 5 years before the acci-
dent occurred. As a consequence, the
rotting that took place took place below
the ground level where the lineman,
before climbing the pole, could not
detect it, even though in this instance
Charles Ashcraft did what he was trained
to do--took a shovel and dug around the
base of the pole. And as a consequence,
through the negligence of the Montana
Power Company, he suffered this perma-
nent injury. I p until this decision by
J
the Supreme Court, there was no question
that in that situation the injured
citizen, the injured working man had a
right for proper redress. The Workmen's
Compensation law, which is inadequate at
best, has certain public reasons for its
existence. It applies only between the
employer and the employee. So clever
legal counsel for the Montana Power
Company, and very able, decided maybe
there's some way to get away from this
case. So they went back to 1965, when
the Legislature amended the independent
contractor law to provide that you no
longer could defend on the ground that
someone injured within your work premis-
es was not entitled to Workmen's Compen-
sation from you because he was employed
by an independent contractor unless you
insisted that that independent contrac-
tor carry Workmen's Compensation. The
legislators that were behind that amend-
ment were interviewed. They said, "We
had no intention whatsoever of bringing
about the results that were brought
about by this Supreme Court decision,
and you have to strain the reading of
that particular section to come up with
that particular position. " But never-
theless, the Supreme Court--and there's
a very bitter dissent on that case--a
long and. well-reasoned dissent--but in
any event, in that case they fastened
upon that as a justification and an
excuse for denying this working man his
remedy. When that happened--and this
was after Judge Battin of the Federal
Court in a similar case had ruled in
Montana that this amendment does not do
that--he then had to change his mind,
because under federal law, he's bound by
a Montana decision. The legal community
was shocked. None of us were able to
explain the result to the unions, to the
working people. This particular right
was taken away from the working man
after 80 years, so promptly legislators
introduced in the Senate a bill to
overcome that. It passed the
Senate--and I don't want to make a
bicameral or a unicameral argument here.
(Laughter) Promptly the lobby of the
vested corporate interests when across
the hall--and we determined this to be
true--and made sure that it did not pass
in the House. So we're now at the court
of last resort. We allowed in our Bill
of rights an amendment to a clean and
healthy environment. By this provision
and this amendment, we are going to
provide for the working man a safe
environment. How does the law stand at
the moment? Let me tell you how it
stands. And some of the big vested
corporate interests are now using inde-
pendent contractors because it's reduced
their cost of operation. If you have
some particular tough job that you want
done on your premises where there may be
some danger connected with it, what you
do, you go out and you hire an indepen-
dent contractor. Don't have your em-
ployees in that dangerous area, because
if they're hurt or there's an accident,
you have to pay them Workmen's Compensa-
tion. So here's the way you do it now
that we have immunity from the Supreme
Court--an immunity neither intended by
the people nor intended by the Legisla-
ture. What you do, you hire someone on
an independent contractor basis and
their employees are in this dangerous
area. You don't have to worry about
safety anymore. You don't have to do
anything to make your premises safe.
You don't have to be concerned about a
safe environment for the people that are
working there to benefit your interest.
If they're injured, even though it's the
most blatant type of negligence and
carelessness, all you have to say is,
"Well, we're sorry, but you have your
Workmen's Compensation." Maybe you have
a wife and seven children, but it's $65
a week for awhile and it's 60, and now,
of course, the Legislature has raised it
and you can get more money, but that's
it. The Workmen's Compensation people
were astounded at the decision. They
sent their lawyers up to petition for
rehearing. I do not think that any
strong legal mind could really and truly
justify what had happened, which has
resulted in this, that in a particular
area of industry now we need not have a
safe environment for the working man.
The vested corporate interest has imrnu-
nity without paying anything for it.
Now, how does it work if we return this
basic right that the injured working man
had for 80 years? Simply this. Let's
assume--let's take the Charles Ashcraft
situation. Charles Ashcraft is injured.
He proves all these factors about the
negligence of the Montana Power Company.
He is paid his Workmen's Compensation,
so he files what the lawyers call a
third party lawsuit. The Montana Power
Company then is compelled to acknowledge
its obligation. They make payment. He
then pays back to the Workmen's Compen-
sation carrier. We have a provision in
Montana in the Workmen's Compensation
Law that provides for these
actions--that the working man doesn't
bring it, the Industrial Accident Board
does. That law has never been changed.
But how about now? That law is almost
 useless because of this particular
interpretation. So what has happened?
Regardless of all this conflict, this
technicality, having to use the word
"Workmen's Compensation" in this partic-
ular section, which we didn't want to
do, because the minute we did it we knew
that somebody would jump up and say it's
legislative, but if you're going to
draft something with precision and you
want to make sure that all that you're
doing is returning the law to what it
was prior to this decision 2 year ago,
you are compelled, sometimes, in fash-
ioning this precise language to use
language that may be seized upon by
someone else as 1egisla.tive. It is not.
Tt is giving back a basic constitutional
right that the citizen of Montana had
prior to that particular decision. And
we submit to you that by this particular
provision, all that we are doing is
returning that right to the working man;
and how can anyone truly, justly object
to doing that and only that? Now that
is what happened in that particular
situation. This is a constitutional
provision. We say, in the first sen-
tence, that every citizen shall have the
right to full legal redress. We've
taken away full legal redress in that
particular area. We want to give full
legal redress back in that one specific
area, and that is why it is framed in
that particular fashion. And we submit
to you, our fellow delegates, that we
are here to make sure that the rights of
the citizen are protected, and this is
nothing more than a step forward to make
sure that they will continue to have a
protection that existed for 80 years.
We submit it's a constitutional matter
and that the amendment i.s required to
have a progressive Bill of Rights.
Thank you, Mr. Chairman.
Montana Constitutional Convention, Vol. V, at 1755-1757.
Delegate Johnson then inquired of Delegate Dahood:
DELEGATE JOHNSOPJ: Wade, I'm a cattle
rancher down in southeastern Montana and
we live way back in the hills, off the
road. We have to maintain our own road;
in fact, it's 12 miles there. We built
what kind of a road we have, and we try
to get by on it. We have some homemade
bridges there, and this and that. As a
point of clarification, I wanted to ask
you, where we would contract somebody to
do some work on this road and perhaps
 one of them with a piece of heavy equip-
ment were doing some shaling or gravel-
ing of this or that and one of these
bridges would collapse and one of those
men. would be hurt, then I would be
responsible?
DELEGATE DAHOOD: Torrey, you would not
be responsible. This amendment does
nothing more than return the law to what
it was about a year ago. Please recall
what I said. The only time that someone
would be responsible, such as the Mon-
tana Power Company, is when they are
negligent, they are guilty of some type
of civil wrongdoing. And this other
argument that's been used, that it's
going to open you up or it's going to
open the owner of a residence up to some
type of lawsuit, is simply, absolutely
not true. That's why we fashioned this
language precisely as we have. We're
doing nothing more than trying to return
the law to what it was prior to a year
ago. Your situation wouid be no differ-
ent that it's been in all the years gone
by, Torrey.
Montana Constitutional Convention, Vol. V, at 1758.
In the clear and bright light of this record, there
should be no reason for disagreement on what the intention of
the Constitutional Convention delegates was and what they had
in mind when they adopted Article 11, Section 16, or what the
citizens understood when they voted upon this provision.
The majority opinion ir, its interpretation of Article
11, Section 18, of the Montana Constitution and of § 2-9-107,
MCA, raises other, and perhaps more serious, constitutional
questions.
What political power do the people have to amend their
Constitution? What sta.nding with relation to other constitu-
tional articles does a subsequent constitutional amendment
have? What power do the people have to respond to any amend-
ment through their Legislature?
Article 11, Section 1, provides:
 All pol-itical power is vested in and
derived from the people. All government
of right originates with the people, is
founded upon their will only, and is
instituted solely for the good of the
whole.
Article 11, Section 2, provides:
The people have the exclusive right of
governing themselves as a free, sover-
eign, and independent state. They may
alter or abolish the constitution and
form of government whenever they deem it
necessary.
Article 111, Section 1, provides:
The power of the government of this
state is divided into three distinct
branches--legislative, executive, and
judicial. No person or persons charged
with the exercise of power properly
belonging to one branch shall exercise
any power properly belonging to either
of the others except as in this consti-
tution expressly directed or permitted.
The 1972 Constitution, when adopted by the people, was
an amendment to their 1889 Constitution, and there should be
no dispute that amendments to the Constitution must and do
have a direct effect upon any prior existing Article of the
Constitution which the amendment has an obvious and intended
purpose in addressing. To hold otherwise may render any
attempt by the people to amend their Constitution a nullity.
In a given factual context, each Article of our Consti-
tution must have equal and recognized standing. If such were
not the case, and the document not read to harmonize each of
its provisions, interpretive chaos may well result.
Amendments amend amendments and. this must be recognized
by the Court.
The original Article 11, Section 18, of the 1972 Con-
stitution provided:
The state, counties, cities, towns, and
all other local governmental entities
shall have no immunity from suit for
 injury to a person or property. This
provision shall apply only to causes of
action arising after July 1, 1973.
An amendment to this Section was presented to the
people by legislative referendum and in 1974 the people
amended Article 11, Section 18, which now provides:
The state, counties, cities, towns, and
all other local governmental entities
shall have no immunity from suit for
injury to a person or property, except
as may be specifically provided by law
by a 2/3 vote of each house of the
legislature.
In 1983, the legislature in response to this Court.'s
decision in White, adopted § 2-9-107, MCA:
(1) Neither the state, a county, munici-
pality, taxing district, nor any other
political subdivision of the state is
liable in tort action for damages suf-
fered as a result of an act or omission
of an officer, agent or employee of that
entity in excess of $300,000 for each
claim and $1. million for each
occurrence.
(2) No insurer is liable for excess
damages unless such insurer specifically
agrees by written endorsement to provide
coverage to the governmental agency
involved in amounts in excess of a
limitation stated in this section, in
which case the insurer may not claim the
benefits of the limitation specifically
waived.
The majority of this Court now finds this statute
invalid and unconstitutional in failing to meet a test of
rationality or compelling State interest, and therefor dis-
criminatory, and therefor a denial of equal protection under
Article 11, Section 4, of the Montana Constitution.
I believe S 2-9-107, MCA, meets the test of rationality
and compelling State interest.
The majority opinion sets forth in full the provisions
of S 2-9-106, MCA, which will not he repeated here, but I
commend the reader to further consider its provisions. They
are not mere bare assertions or only a legislative plea not
to require government to pr0vid.e funds. They are carefully
considered and a.rticulated reasons why government of the
people must be protected from unlimited liability.
The result of the majority opinion not only affects the
State government, which arguably may have a deep pocket, but
every County, City, School District, Irrigation District,
Fire District, and. many other small governmental entities as
well, which unarguably do not have a deep pocket. It is the
people of this State, not government, who bear the cost of
government, which of course is extracted from them by taxes
and fees.
When the people in 1974 adopted Article 11, Section 18,
they authorized the legislature to specifically provide
immunity from suit to governmental entities for injury to
persons or property. This is precisely what the legislature
has d.one in 1983 by passing 5 2-9-107, MCA. They did not
provide for total immunity but specifically limited damages
as to amount. Legal redress for injury to person or property
can only be measured in money damages. Article 11, Section
18, authorizes the legislature to provide for this limited
immunity.
The majority opinion. cites White and Article 11, Sec-
tion 16, for the proposition that there is a fundamental
right to full legal redress under the facts of this case.
A grammatical reading of Articl-e 11, Section 16, does
not support this interpretation.
The clear intent of the 1972 delegates to the Constitu-
tional Convention does not support this interpretation.
In adopting the second sentence of Article 11, Section
16, they intended and did provide full legal redress for
injury incurred in employment for which others may be liable,
except as to fellow employees and the immediate employer.
There is no question as to the need for this protection for
the employees in this State.
There further can be no question that our courts are
open to every person and speedy remedy afforded for every
injury of person, property or character; however, this does
not mean that the people have been denied the right to act
through their legislature in providing a system of law that
may set forth the scope and extent of the remedies provided
by law. For this Court to decide otherwise requires a denial
of the doctrine of separation of powers in Article 111,
Section 1, of the Montana Constitution.
This Court should reexamine its interpretation of
Article 11, Section 16, articulated in White and the cases
controlled by that decision.

J[,-T--
-,A-
-4

Chief Justice
Mr. Justice Fred J. Weber dissents as follows:

I commend the majority for its historical analysis and
careful presentation of the constitutional principles which
apply in equal protection cases. However, I strongly
disagree with the conclusion that, under the facts of this
case, there is a fundamental right to full legal redress
which has been offended. I concur in the dissent of Chief
Justice Turnage and agree that this Court should re-examine
its interpretation of Art. 11, 5 16, Mont. Const. 1972, as
contained in White and the majority opinion here.

Article 11, § 18, Mont. Const. 1972, provides:
The state. counties, cities, towns, and
all othe; governmental entities shall
have no immunity from suit for injury to
a person or property, except as ma be
specifically provided
of - house of thelegislature.
each
a
law 9 2?vo~
-
[Emphasis supplied.] -
The underscored portion was added by a constitutional
amendment and approved by referendum vote of the people in
1974. As pointed out in the majority opinion, prior to that
amendment, the state and various governmental entities had no
immunity from suit under the 1972 Constitution. The consti-
tutional referendum added the exception.
It is apparent that the people intended that the state
could make specific provisions for immunity so long as those
provisions were adopted by a 2/3 vote of each house. By
requiring the 2/3 vote rather than the normal majority vote,
the people demonstrated their requirement for broad agreement
as to any immunity adopted.
Section 2-9-107, MCA, was adopted by 2/3 vote of each
house of the legislature and was also approved by the gover-
nor. The adoption of that statute appears to satisfy the
requirements for immunity under Art. 11, 8 , Mont. Const.
1972. However, White and Pfost hold that no such immunity
exists.
White held unconstitutional S 2-9-107, MCA 1983, which
limited recovery to economic damages and eliminated the right
to recover other types of damages from the state. White
thereby advised the people of Montana, the members of the
legislature and the governor, in particular, that they could
not provide for immunity under section 18 by limiting
recovery to certain types of damages or components of injury.
The majority opinion in Pfost now tells the people,
members of the legislature and the governor that they cannot
adopt a statute that in any b a limits the dollar amount of
ry
recovery from the State as legal redress for injury to
person, property or character.
If limited sovereign immunity is to be granted, it
requires either a limitation on the type of damages for which
compensation can be paid, or a dollar limitation upon the
total amount of recovery. Both of these alternatives have
now been effectively eliminated by the opinions of this
Court. Absolute immunity appears to be the only remaining
alternative. However, whether a statute that grants total
sovereign immunity would still be permissible is an unsettled
question. The effect of White and Pfost appears to be an
improper judicial repeal of the exception in Art. 11, 18,
Mont. Const. , as adopted by the people of Montana in 1974.
I1

Art. 111, S 6 of the 1889 Montana Constitution provided
that courts of justice "shall be open to every person, and a
speedy remedy afforded for every injury of person, property
or character. . ." This is substantially the same provision
as Art. 11, § 16 of the 1972 Montana Constitution.
 The majority points out that prior to adoption of the
1972 constitution, the State and its agents enjoyed total
immunity from suit for tort action unless a policy of liabil-
ity insurance existed. If the rationale of the majority in
this case were applied, such total immunity would have been
constitutionally improper. In a similar manner, the statuto-
ry reference to liability insurance, under which a court
could reduce any judgment to a figure within the limits of
insurance coverage, would also have been improper. Certainly
the reduction of a judgment to the amount of available
insurance would be unconstitutional under the majority
analysis in the present case.
I point briefly to our constitutional history in order
to emphasize how the majority's conclusion suggests that for
many years prior to White, the thinking on the part of this
Court and the people of Montana was constitutionally off
base. I disagree.

I11
What choices do the Legislature and the people of
Montana have in the event they desire to adopt immunity from
suit, as authorized by Art. 11, S 18, Mont. Const. 1972?
Unfortunately I am not able to assist by giving any sense of
direction. If I understand the thinking of the majority
correctly, legislation which in any way restricts recovery of
any damages claimed by an injured party would be
impermissible. That seems to leave only one alternative: the
adoption by a 2/3 vote of each house of a statute which
grants total immunity to the state, counties, cities, towns
and all other local governmental entities. If such a statute
were enacted, it apparently could not contain any limitation
with regard to insurance limits because of the holding in
this case. Apparently absolute immunity adopted by a 2/3
 b
. *I ,
*.
i
,

vote of each house is the only choice that has not been
rejected by this Court. I regret that this is the tragic
choice which remains.
IV
I find that Art. 11, 5 16 , Mont. Const., must be
compared to 5 18 of that same article. The canons of
constitutional construction to be applied in comparing two
different provisions require that the constitution be
considered as a whole, that all provisions bearing upon the
same subject matter receive appropriate attention and be
construed together, and that specific provisions control
broad and general provisions. See Jones v. Judge (1978), 176
Mont. 251, 255, 577 P.2d 846, 849.
In construing the two constitutional provisions here, we
note that the people of Montana properly adopted an
exception. They amended Art. 11, 5 18 several years after
they adopted 5 16. We also note that S 16 is the broad and
general provision guaranteeing access to the courts and a
remedy for every injury. Section 18, on the other hand, is
a specific provision allowing limitations on legal redress
against the government. Section 2-9-107, MCA, was adopted in
accordance with 5 18. The result is that the various
governmental entities became immune from damages in excess of
$300,000 for each claimant and $1,000,000 for each
occurrence. I conclude that 5 2-9-107, MCA, is a
constitutionally authorized limitation under Art. 11, S 18 of
the Constitution.
v
Even if I were to accept the holding of White and apply
the strict scrutiny test to the legislation as required by
the majority here, I would not reach a conclusion that
5 2-9-107, MCA, is unconstitutional. I find the extensive
legislative findings set forth in § 2-9-106, MCA, to be
compelling. The legislature recognized that unlimited lia-
bility makes it increasingly difficult, if not impossible, to
purchase insurance coverage. The legislature emphasized the
high risk activities which must be performed by governmental
entities and pointed out that all of such functions and
services entail a potential for civil liability far beyond
the potential liability of corporations or other persons in
the private sector. The legislature further found that these
functions are necessary components of government and that
despite limited resources and competition for these resources
between various programs, the services should be furnished to
the people of this state. The legislature found that
liability for damages for tort is more than a cost of doing
business, and that its effect upon government goes far beyond
a simple reduction in governmental revenues. The legislature
concluded that unlimited liability would precipitate severe
budget problems. Of particular significance are the
following:
... The legislature finds these
potential results of unlimited liability
for tort damages to be unacceptable and
further finds that, qiven the realities
of modern government and the
litigiousness of our society, there is no
practical way of completely preventing
tortious injury by and tort damages
against the state and other governmental
entities. The legislature therefore
expressly finds that forced reduction in
critical governmental services that could
result in unlimited liability of the
state and other governmenta.1 entities
.
. . constitutes a compelling state
interest requiring the application of the
limitations on liability and damages
provided in parts 1 through 3 of this
chapter.
The governor concurred in these findings when he signed the
legislation.
 I find these legislative findings and statements of
purpose to be a clear, understandable and cogent explanation
for the conduct of the legislature and the governor in
passing this bill. These findings express major policy
decisions which are peculiarly within legislative competence.
For example, the financial impact of abolishing the monetary
limit on sovereign immunity is a matter which could be clari-
fied by legislative hearings. That process is not available
to this Court. Unlike the legislature, we have no way of
studying the economic and social trade-offs which might be
involved if the State is subjected to unlimited liability. I
would hold that the legislative findings are sufficient to
establish a compelling state interest. As a result, I would
conclude that even under the equal protection analysis of the

Mr. Justice L. C. Gulbrandson:
I join in the dissents of Mr. Chief Justice Turnage and
,7
Mr. Justice Fred J. Weber.

v&dP-
Justice 1'