Meech v. Hillhaven West, Inc.

No. 88-410
IN THE SUPREME COURT OF THE STATE OF MONTANA

1989

RUSSELL E. MEECH,
Plaintiff,
-vs-
HILLHAVEN WEST, INC., and R. RON
SEMINGSON,
Defendants.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:
For Plaintiff:
Best Law Offices; Michael Best argued, Great Falls, Montana
For Respondent:
James, Gray & McCafferty; Robert F. James, Great Falls,
Montana
Jackson, Lewis, Schnitzler and Krupman;
Joel P. Kelly argued, and Elizabeth Platte Johnson on
the brief, Los Angeles, California
For Amicus Curiae:
Church, Harris, Johnson & Williams; Cresap S. McCracken,
Great Falls, Montana
Patrick W. Shea; Paul, Hastings, Janofsky & Walker,
Washington, D.C.

Submitted: April 11, 1989
De2ided: June 29, 1989
JUN 2 3 1989
Filedzd ;l#4
sa
CLERK OF SUPRElblE COURT
STATE OF MONTCZI"
1

' '' Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.

This opinion concerns questions certified to this Court
by the United States District Court for the District of
Montana, Great Falls Division, Honorable Paul G. Hatfield
presiding. The questions are as follows:
(1) Is the Montana Wrongful Discharge From Employment
Act, 55 39-2-901 to -914, MCA, unconstitutional in that it
serves to wrongfully deprive an individual falling within the
purview of the Act from his or her right to "full legal
redress" within the meaning of Article 11, S 16 of the
Montana Constitution?
(2 Are those provisions of the Montana Wrongful
Discharge From Employment Act which expressly prohibit
recovery of noneconomic damages, and limit the recovery of
punitive damages, violative of an individual's right to "full
legal redress" within the meaning of Article 11, 5 16 of the
Montana Constitution?
We answer "No" to both questions.
Petitioner Meech's action in the United States District
Court claims damages for wrongful termination from
employment, breach of the implied covenant of good faith and
fair dealing, and intentional or negligent infliction of
emotional distress. Meech also seeks punitive damages for
allegedly oppressive, malicious, and unjustifiable conduct on
the part of Meech's former employer, respondent Hillhaven.
The claims grew from the alleged wrongful discharge of Meech
by Hillhaven. Hillhaven moved to dismiss asserting that the
Montana Wrongful Discharge From Employment Act (Act)
precluded Meech's common-law claims. Meech responded to the
motion by contending that the Act violated Article 11, 5 16
of the Montana Constitution. Certification of the questions
presented here followed. Before fully answering the
questions, a brief summary of the Act aids in understanding
the issues.
The Act provides the exclusive remedy and procedure for
actions formerly governed to a great extent by common-law
requirements:

Preemption of common-law remedies: Except as
provided in this part, no claim for discharge may
arise from tort or express or implied contract.

Section 39-2-913, MCA. The Act exempts from its provisions
causes of action for discharge governed by other state or
federal statutory procedures for contesting discharge
disputes. For example, the Act exempts from its provisions,
discriminatory discharges, and actions for wrongful discharge
from employment covered by written collective bargaining
agreements or controlled by a written contract for a specific
term. For other wrongful discharge claims, however, the Act
provides the exclusive procedure. Sections 39-2-912 to -913,
MCA. The Act repeals Montana statutes which formerly granted
to both employees and employers the right to terminate the
employment relationship for fault on the part of the other
party. Sections 39-2-504 to -505, MCA (1985). The Act's
provisions on discharge also limit the operation of §
39-2-503, MCA, Montana's "at-will" statute. See 5 39-2-902,
MCA. In place of the prior governing statutes and the
common-law causes of action it abrogates, the Act provides a
statutorily defined cause of action for wrongful discharge.
The Act broadly defines "discharge" to include
constructive discharge. Section 39-2-903, MCA. Covered
employees may sue for discharges defined as wrongful under
the Act. Section 39-2-904, MCA. Three causes of action for
"wrongful" discharge exist under the Act: discharge in
retaliation for an employee's refusal to violate public
policy or for reporting a violation of public policy,
discharge in violation of the express provisions of the
employer's written personnel policies, and discharge for
reasons other than good cause as defined in the Act. The Act
limits the time for bringing a cause under its provisions to
one year from the date of discharge. Section 39-2-904, MCA.
The Act establishes the extent of employers' liability
for wrongful discharge. Under the Act, plaintiffs have no
claim to damages for "pain and suffering, emotional distress,
compensatory damages, or punitive damages, or any form of
damages, except as provided for in subsections (1) and (2)
[of 8 39-2-905, MCA] ." Subsections (1) and (2) of S
39-2-905, MCA, provide damages for lost wages and fringe
benefits, together with interest thereon for a period not to
exceed four years from the date of discharge. The Act
defines the value of employee paid pension plans, insurance
coverage, vacation time, and sick time as fringe benefits.
Subsection (2) provides for an award of punitive damages
where claimants can show by clear and convincing evidence
actual malice or actual fraud. Interim earnings, including
those the claimant could have earned with reasonable
diligence, are to be subtracted from the award for lost
wages. Section 39-2-905 (1), MCA. The Act also provides an
incentive for arbitration as an alternative mechanism for
settling employment disputes. Section 39-2-913, MCA.
Meech in essence argues that the Act denies his
fundamental right to full legal redress under Article 11, S
16 of the Montana Constitution. Meech also contends that the
Act violates equal protection by denying the fundamental
right to full legal redress to a class of claimants without
demonstrating that the classification furthers a compelling
state interest. See Corrigan v. Janey (Mont. 1981), 626 P.2d
838, 38 St.Rep. 545; White v. State (1983), 203 Mont. 363,
661 P.2d 1272; Pfost v. State (1986), 219 Mont. 206, 713 P.2d
495. Hillhaven answers that the Act does not violate equal
protection of the laws or infringe on a fundamental right to
full legal redress because Article 11, S 16 of the Montana
Constitution guarantees only a right of access to courts to
seek a remedy for wrongs recognized by common-law or
statutory authority, and the legislature may alter common-law
causes of action to promote a legitimate state interest. See
Shea v. North Butte Mining Co. (1919), 55 Mont. 522, 179 P.
499; Stewart v. Standard Publishing Co. (1936), 102 Mont. 43,
55 P.2d 694; Reeves v. Ille ~lectricCo. (1976), 170 Mont.
104, 551 P.2d 647. We agree with Hillhaven and overrule
Corrigan, White, and Pfost insofar as they hold that Article
11, § 16 of the Montana Constitution guarantees a fundamental
right to full legal redress.
I.
THE ACT DOES NOT VIOLATE THE FUNDAMENTAL RIGHT OF FULL LEGAL
REDRESS, BECAUSE NO SUCH "FUNDAMENTAL RIGHT" IS CREATED BY
ARTICLE 11, SECTION 16.

Summarized, this section covers the following points:
A. The conclusion that Article 11, 5 16 of the Montana
Constitution does not create a fundamental right results from
examination of long-standing, fundamental principles of
constitutional interpretation.
B. The basic rule that the legislature may alter the
common law harmonizes with an interpretation of Article 11, §
16, as only a mandate to the courts.
C. It also follows from the words of the original
guarantee, and the meaning intended for the 1972 amendment to
the original guarantee, that Article 11, S 16, does not
guarantee a fundamental right to a particular cause of
action, remedy, or redress.
D. Judicial creation of such a fundamental right in this
context would also violate the elemental principle of
separation of powers.
E. Meech's arguments on these points are inapposite.

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

In construing a constitutional guarantee, courts "have
looked to the object and purpose to be accomplished by the
provision." C. J. Antieau, Constitutional Construction S
3 . 0 5 (1982) .
A " 'very useful key to the construction [of] a
constitutional guarantee is to inquire what was the evil to
be removed, and what remedy did the new instrument propose; .
.. I#I C. J. Antieau, Constitutional Construction § 3 . 0 5
(1982)(quoting Miller, Lectures on Constitutional Law 82
(1891)1 .
Construing our speedy remedy guarantee in light of the
particular abuses the framers sought to correct supports the
argument that the clause does not guarantee a fundamental
right to "full legal redress." The predecessor to Article
11, 16, was Article 111, § 6 of the 1889 Montana
Constitution, which reads as follows:
Courts of justice shall be open to every person,
and a speedy remedy afforded for every injury of
person, property, or character; and that right and
justice shall be administered without sale, denial,
or delay.
The principal cases Hillhaven relies on, Shea, Stewart, and
Reeves, concluded that Article 111, 5 6 of the 1889
Constitution did not constrict legislative powers because the
article only provided a mandate to the courts to provide
equal access to causes of action recognized at law. Shea,
179 P. at 502; Stewart, 55 P.2d at 696; Reeves, 551 P.2d at
651; cf. State ex rel. Carlin v. District Court (1945), 118
Mont. 127, 164 P.2d 155 (trial court's failure to convene
jury for case long awaiting jury trial because of
inconvenience to jurors violates the mandate in Montana's
remedy guarantee requiring that courts provide a proper
administration of justice); Tooke v. Miles City Production
Credit Association (Mont. 1988), 763 P.2d 1111, 45 St.Rep.
1993 (fact that United States District Courts for the
District of Montana deny federal subject matter jurisdiction
of tort claims against production credit unions weighs for
finding subject matter jurisdiction in Montana District
Courts because Montana's remedy guarantee mandates a forum
for claims cognizable according to applicable law).
Legal history demonstrates that Shea and Stewart reached
the correct conclusion. Article 111, S 6, was not placed in
the Constitution as a directive to the legislature. Rather,
the guarantee was directed at the courts, and it was framed
to provide for equality in the administration of justice.
Prior to the decisions in Shea and Stewart, this Court traced
the guarantee embodied in Article 111, B 6, to Chapter 40 of
the Magna Carta. Stephens v. Nacey (1913), 47 Mont. 479,
482-83, 133 P. 361, 362. The Magna Carta's chapter 40, which
contains language similar to the last segment of ~rticle111,
§ 6, reads as follows:

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

"And therefore every Subject of this Realm, for
injury done to him in bonis, terris, vel persona
[i.e., goods, lands, or person], by any other
Subject, be he Ecclesiastical, or Temporal, Free or
Bond, Man or Woman, Old or Young, or be he
outlawed, excommunicated, or any other without
exception, may take his remedy by the course of the
Law, and have justice and right for the injury done
him, freely without sale, fully without any denial,
and speedily without delay."

Shuman, Oregon's Remedy Guarantee, 65 Or. L. Rev. 35, 39
(1986) (quoting E. Coke, Second Institute 55-56 (4th ed.
1671)) .
Coke's version of Chapter 40 influenced the content
of remedy clauses in many state constitutions:

The constitutions of thirty-seven states contain
passages which, in substance, provide that the
courts "shall be open to every person, and speedy
and certain remedy afforded for every wrong and for
every injury to person, property, or reputation." .
. . [Ilt appears most likely that the highly
influential Sir Edward Coke, commenting on the
Magna Carta more than four centuries after its
adoption, was primarily responsible for the
contemporary forms of the various certain-remedy
provisions.

Note, Constitutional Guarantees of a Certain Remedy, 49 Iowa
L. Rev. 1202, 1202-03 (1964).
Coke's interpretation of the Magna Carta is, in a broad
sense, faithful to its origins. The English feudal nobility
sought through Chapter 40 to eliminate abuses in the writ
system which governed King's courts. The abuses in the
system made the price of the writ obtained by a would-be
litigant a determinant of the quality of justice received.
See generally W. McKechnie, The Magna Carta: A Commentary on
the Great Charter of King John (2d ed. 1914) . The goal of
ending the abuses present in the English writ system
eventually lead to the embodiment of a greater constitutional
principle:

It is evident that the Magna Carta did not put down
the practice of charging heavy fees for writs. Yet
this chapter [Chapter 401, although so frequently
misunderstood and exaggerated, is still of
considerable importance. . . . [Ilt has been
interpreted as a universal guarantee of impartial
justice to high and low; and because, when so
interpreted, it has become in the hands of patriots
in many ages a powerful weapon in the cause of
constitutional freedom.
W. McKechnie, The Magna Carta: A Commentary on the Great
Charter of King John 397-98 (2d ed. 1914).
The recognition of the historical meaning of guarantees
derived from Chapter 40 as mandating that the courts provide
equal access to justice, led to limited interpretations of
remedy clauses when plaintiffs claimed the provisions
constricted the legislature. Wheeler v. Green (Ore. 1979) ,
593 P.2d 777, 789 (citing Davidson v. Rogers (Ore. 1978)
(Linde, J. concurring) 574 P.2d 624); Goldberg v. Musim
(Colo. 1967), 427 P.2d 698; Shoemaker v. ~ountain States
Telephone and Telegraph Co. (Colo. App. 1976), 559 P.2d 721;
Twin Falls Clinic & Hospital Bldg. Corp. v. Hamill (1d.
1982), 644 P.2d 341; Harrison v. Schrader (Tenn. 1978), 569
S.W.2d 822. The concurring opinion in Davidson by ~ustice
Linde set out the rationale for a limited interpretation of
the guarantees in remedy clauses as follows:
 The guarantee in article I, section 10, of a
"remedy by due course of law for injury done [one]
in his person, property, or reputation" is part of
a section dealing with the administration of
justice. It is a plaintiffs' clause, addressed to
securing the right to set the machinery of the law
in motion to recover for harm already done to one
- the
of - stated kinds of interest, a guarantee that
dates by way of the original state constitutions of
1776 back to King John's promise in Magna Charta
chapter 40: . . . It is concerned with securing a
remedy from those who administer the law, through
courts or otherwise.

Davidson, 574 P.2d at 625-26 (Linde J., concurring) (emphasis
added) . Put another way:

The guarantee tells those who apply the law when
and how they must do so. It says nothing to
lawmakers, except insofar as they attempt to
interfere with the administration of justice.
Schuman, Oregon's Remedy Guarantee, 65 Or. L. Rev. 35, 67
(1986) (emphasis in original).
In Shea, this Court succinctly explained this point
holding that Article 111, 6, did not constrict the
legislature's power to replace common-law personal injury
actions with actions provided by workers' compensation
legislation:

A reading of the section discloses that it is
addressed exclusively to the courts. The courts
are its sole subject-matter, and it relates
directly to the duties of the judicial department
of the qovernment. It means - - - - -
no-more nor less than
that, under the provzions - - Constitution and
of the
laws constituting them, the courts must be
accessible to -
al
l- ersE alike, without
discrimination^ - - - - or times - - place
at the tfme and the
- places for their sitting, and afford - speedy
or a
 remedy for every wrong recognized - - - being
by law as
remedial.

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

B. No One Has a Vested Right to a Rule of Common Law.

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

[Tlhe people, through the legislature, have plenary
power, except in so far as inhibited by the
Constitution, and the person who denies the
authority in any given instance must be able to
point out distinctly the particular provision of
the Constitution which limits or prohibits the
power exercised.
Missouri River Power Co. v. Steele ( 1 9 0 5 ) , 32 Mont. 433,
438-39, 80 P . 1093, 1094. The g e n e r a l r u l e i s a l s o t h a t no
one has a vested interest in any rule of common law.
Therefore, a s a general proposition, t h e l e g i s l a t u r e , under
i t s p l e n a r y power t o a c t f o r t h e g e n e r a l w e l f a r e , may a l t e r
common-law c a u s e s o f a c t i o n . The l e g i s l a t i v e a c t i o n may n o t ,
however, i n f r i n g e on c o n s t i t u t i o n a l r i g h t s . W e have a l r e a d y
pointed out that historically, Article 11, 5 16, does n o t
c o n s t r i c t t h e power of t h e l e g i s l a t u r e t o a l t e r common-law
causes of action. The more s p e c i f i c i s s u e h e r e i s w h e t h e r
the legislature may alter or abrogate causes of action
sounding i n t o r t .
A t o r t may b e d e f i n e d a s :

[A] c i v i l wrong, o t h e r t h a n b r e a c h o f c o n t r a c t , f o r
which t h e c o u r t w i l l p r o v i d e a remedy i n t h e form
o f a n a c t i o n f o r damages. This, of course, says
n o t h i n g more t h a n t h a t a t o r t i s one k i n d o f l e g a l
wrong, f o r which t h e law w i l l g i v e a p a r t i c u l a r
redress. ...
When it becomes clear that the plaintiff's
interests are entitled t o legal protection against
t h e conduct of t h e defendant, t h e m e r e f a c t t h a t
t h e claim i s novel w i l l not of i t s e l f operate a s a
b a r t o t h e remedy.

At t h e o p p o s i t e extreme i s t h e bold attempt t o
reduce t h e e n t i r e law of t o r t s t o a s i n g l e broad
p r i n c i p l e , t h a t any harm done t o a n o t h e r i s a
wrong, and calls for redress, unless
" j u s t i f i c a t i o n " f o r it c a n b e shown. . . . [Tlhe
r u l e d o e s n o t t e l l u s what t h e law w i l l r e c o g n i z e
a s "harm" t o a n o t h e r , o r a s " j u s t i f i c a t i o n ' ' f o r i t .
T h e r e a r e many i n t e r f e r e n c e s w i t h t h e p l a i n t i f f ' s
i n t e r e s t s , i n c l u d i n g many i n s t a n c e s o f n e g l i g e n t l y
c a u s i n g mere m e n t a l s u f f e r i n g w i t h o u t p h y s i c a l
consequences o r d e p r i v i n g t h e p l a i n t i f f of t h e
b e n e f i t o f a c o n t r a c t , f o r which t h e law w i l l g i v e
no remedy, a l t h o u g h t h e d e f e n d a n t h a s b e e n c l e a r l y
a t fault. . . . I t i s l e g a l j u s t i f i c a t i o n which
 must be looked to: the law will hold the defendant
responsible for what the law regards as
unjustified---and so stated, the broad rule [remedy
for every wrong] means little, or nothing.
W. L. Prosser, W. P. Keeton, Prosser and Keeton on Torts 5 1,
at 2-4 (5th ed. 1984) (emphasis in original). Prosser also
explains:

Tort law is overwhelmingly common law, developed in
case-by-case decisionmaking by courts. It is also
influenced by statute. Early in the development of
American tort law, doctrines emerged with respect
to enforcement in tort law of standards derived
from criminal statutes. Tort law is affected also
by statutes explicitly aimed at changing
substantive law rules previously developed by
courts. Survival acts and wrongful death acts are
examples.
W. L. Prosser, W. P. Keeton, Prosser and Keeton on Torts 5 1,
at 19 (5th ed. 1984).
As Prosser demonstrates, wrongs recognized at law are
corrected as provided by law. Legislatures in the
Anglo-American system have long been held to possess the
authority to expand or reduce claims and remedies available
at common law. 0 . W. Holmes, The Common Law 112 (1881).
The law of Montana has long recognized that the courts and
the legislature establish the substantive law governing tort
claims. Early Montana statutes contemplated passage of
legislation altering the common law. For example, § 1-1-109,
MCA, first enacted as part of the Bannack Statutes, states:

The common law of England, so far as it is not
repugnant to or inconsistent with the constitution
of the United States or the constitution or laws of
this state, is the rule of decision in all the
courts of this state. (Emphasis added.)
Similarly, Montana law provides that there "is no common law
in any case where the law is declared by statute." Section
1-1-108, MCA. And statutes in derogation of the common law
are "to be liberally construed with a view to effect their
objects and to promote justice." Section 1-2-103, MCA.
The legislature's exercise of its power to alter the
common law supports in a large part our legal system. And as
pointed out by Hillhaven, much of the legislation altering
the common law concerns the legislature's decisions on the
remedies, redress, or damages obtainable in various causes of
action. For example, the legislature has arguably expanded
liability in adopting comparative negligence in $ 27-1-702,
MCA. Similarly, in S 27-1-715, MCA, the legislature has
provided a remedy where none previously existed by ordering
courts to hold owners of vicious dogs strictly liable in
particular circumstances. Recognition of human rights
violations under Title 49 of the Montana Code Annotated,
prohibition of certain trade practices in the insurance
industry under Title 33 of the Montana Code Annotated, and
expansion of parents' liability for children's torts ( S
40-6-237, MCA) are also instances where the legislature has
acted to expand available causes of action, remedies,
redress, and damages. Other examples undoubtedly exist, and
where these legislative expansions govern causes of action,
courts and administrative bodies are bound to follow their
mandate.
Legislative decisions to expand liability to further
various policy objectives are debated and passed almost
routinely. In a like manner, for policy reasons, the
Legislature debates and passes statutes that take away causes
of action and/or constrict liability. The following are
examples: abolition of a cause of action for alienation of
affection ( S 27-1-601, MCA), abolition of a cause for breach
of promise to marry ( S 27-1-602, MCA), protection for certain
persons against a cause of action for libel ( 27-1-804,
MCA), liability limitations for those rendering emergency
care at an accident scene ( 27-1-714, MCA), liability
limitations for those furnishing alcoholic beverages ( §
27-1-710, MCA) , liability limitations for persons donating
food for charity ( S 27-1-716, MCA), liability limitations for
agents and volunteers of nonprofit corporations, ( § 27-1-732,
MCA) , and liability limitations for nonprofit organizations
sponsoring rodeos and other events, ( B 27-1-733, MCA). Laws
on livestock in open range constitute another legislative
limit on liability of parties who are arguably tort-feasors.
Section 60-7-202, MCA. Landowners also benefit from
legislative limits on liability. For example, under §
23-2-321, MCA, a landowner owes only a duty for acts or
omissions that constitute willful or wanton misconduct to
individuals making recreational use of surface waters flowing
over or through the landowner's property. Similarly, from a
remedy and redress standpoint, property owners benefit from
statutory provisions exempting certain property from
execution. The Index to the Montana Code Annotated lists
over sixty types of property statutorily exempt from
execution. These and other statutes constrain liability and
limit remedies and redress available at law.
In actions governed by the common law, this Court has
also established limitations and expansions of liability.
For example, in Miller v. Fallon County (Mont. 1986), 721
P.2d 342, 43 St.Rep. 1185, this Court abrogated interspousal
tort immunity. Similarly, this Court, acting in its role as
lawmaker, recently imposed on employers the duty of good
faith and fair dealing. Gates v. Life of Montana Insurance
Company (1982), 196 Mont. 178, 638 P.2d 1063. In another
decision, breach of the duty of good faith and fair dealing
arising from obligations in a lease justified an award of
punitive damages. Nicholson v. United Pacific Insurance Co.
(1985), 219 Mont. 32, 710 P.2d 1342.
This Court has also refused to expand common law. For
example, this Court has affirmed a trial court's decision
disallowing evidence of emotional harm to a shareholder where
the tort was committed against the shareholder's corporation.
Moats Trucking Co. v. Gallatin Dairies (Mont. 1988), 753 P.2d
883, 45 St.Rep. 772. Another case held that the guarantee
under Article 11, S 16, does not abrogate a statute of
limitations defense. State v. Perry (Mont. 1988), 758 P.2d
268, 45 St.Rep. 1192.
The above cited examples of legislative and judicial
limitations illustrate that the law, for a variety of policy
reasons, refuses to provide a cause of action, remedy and
redress for every injury. This proposition is expressed in
Latin as damnum absque injuria, meaning a "loss which does
not give rise to an action for damages against the person
causing it." Black's Law Dictionary 345 (4th ed. 1979). The
legislation at issue here similarly alters common-law rights
and duties and arguably denies a cause of action, remedy, and
redress for injuries recognized at common law. If Article
11, 16, guarantees a fundamental right to full legal
redress as embodied in common-law causes of action, then a
myriad of legislation altering common law in a restrictive
manner, as well as the Act, denies this fundamental right.
Shea addressed this issue:

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

C. THE 1972 AMENDMENT TO ARTICLE 111, § 6, DID NOT
RECOGNIZE OR CREATE A FUNDAMENTAL RIGHT TO FULL
LEGAL REDRESS.

In 1972, Article 111, § 6 of the 1889 Constitution was
amended and inserted in the current Constitution as Article
1 1 16. The amendment added to the Article as underscored
below:

Courts of justice shall be open to every person,
and speedy remedy afforded for every injury of
person, property, or character. No person shall be
deprived - - - full legal redress for injury
of this
incurred in employment for which another person may
- liable-except
be - - fellow employees - -
as to and his
immediate employer - hired - - -
who him if such immediate
employer provides coverage under the Workmen's
Compensation - -of this state. ~ i g h t a n djustice
Laws -
 shall be administered without sale, denial, or
delay.
In Reeves, the amended version of Article 111, $ 6 of the
1889 Constitution was held not to constrict the legislature's
decision to alter common law:

As indicated in Shea and Stewart, the legislature
is not constitutionally prohibited from eliminating
common law rights which have not accrued or vested.
The Constitution does not freeze common law rights
in perpetuity.
Reeves, 551 P.2d at 652. There was no comment in Reeves on
the amendment to Article 111, § 6.
1. The Wording Itself. White and Pfost, without
discussing governing precedent, reached the opposite
conclusion construing Article 11, Section 16 of the 1972
Montana Constitution on issues involving governmental
immunity and equal protection. White held that Article 11, §
16, "guarantees that all persons have a speedy remedy for
every injury," and thus the classification resulting from a
cap on tort damages awarded against state governmental
entities violated equal protection. White, 661 P.2d at 1275
(emphasis added). White then concluded that the legislation
violated the guarantee because no compelling state interest
justified denying the fundamental right to full legal redress
for all injuries. White, 661 P.2d at 1275.
In Pfost, this Court faced an equal protection challenge
to an amended version of the damages cap at issue in White.
Pfost cited White and again held that Article 11, Section 16,
provides a "constitutional right to full legal redress for
injury." The phrase "full legal redress" from Article 11, 5
16, played an important role in this determination:
 The use of the clause "this full legal redress" has
major significance. It obviously and grammatically
refers to the "speedy remedy afforded for every
injury of person, property, or character. ' I The
adjective "this" means the person, thing or idea
that is present or near in place, time or thought
or that has just been mentioned. Webster's New
Collegiate Dictionary (1981). The constitutional
framers thus construed a "speedy remedy" as
comprehending "full legal redress." A state
constitutional right to full legal redress was
thereby created. Any state statute that restricts,
limits, or modifies full legal redress for injury
to person, property or character therefore affects
a fundamental right and the state must show a
compelling state interest.

Pfost, 713 P.2d at 503.
There are flaws in this reasoning. As pointed out by
Justice Weberls dissent in White, rules on the construction
of constitutional guarantees favor interpretations of the
guarantees in line with former judicial decisions where a
constitutional convention has approved a similar or identical
provision in a new constitution. White, 661 P.2d at 1279
(citing 2A C. Sands, Sutherland Statutory Construction S
45.12, at 37 (4th ed. 1973)). If "this full legal redress"
refers to the speedy remedy in the first clause, then the two
references are identical and the Convention approved Sheals
and Stewart's definition of the guarantee. Shea and Stewart
leave little doubt that our remedy provision does not
guarantee a fundamental right to a particular cause of
action, remedy, or redress. As discussed below, the
delegates narrowly drafted the amendment to accomplish the
single purpose of limiting the lawmakers1 power in
restricting third party actions in workers1 compensation law.
Reliance in Pfost on the definitional and grammatical
construction of the guarantee is flawed in other ways as
well. For example, the word:
 "injury" as employed in such a constitutional
declaration implies the doing of some act which
constitutes an invasion of a legal right as
established by statutory or common law,...
16A Am. Jur. 2d Constitutional Law S 616 at 562-63 (2d ed.
1979) (emphasis added). Or, as stated by one commentator, a
"recognized, pre-existing injury is the predicate, not the
subject of the clause. " Schuman, Oregon's Remedy Guarantee,
65 Or. L. Rev. 35, 67 (1986).
Similarly, the redress referred to is legal redress.
Legal means:
Conforming to the law; according to law; required
or permitted by law; not forbidden or
discountenanced by law; good and effectual in law.
Black's Law Dictionary 803 (5th ed. 1979). Legal redress,
then, is redress as provided by law, and redress and remedy
are necessarily connected to what the law defines as a cause
of action.
The words "actions," "cause of action," "right,"
"remedy," and "redress" are often used in a legal sense so
that one implies the other. In fact, they are so related
that at times one necessarily implies the other. However,
there are some important distinctions which must be
maintained. The term "cause of action" has been defined as
follows:
" [Tlhe fact or facts which establish or give rise
to a right of action, the existence of which
affords a party a right to judicial relief." The
cause of action itself is distinguishable from the
form it assumes in its prosecution in the courts.
The facts constitute the cause of action, and the
legal form used to enforce the action is the
remedy.
State v. Preston (Ohio 1962), 181 N.E.2d 31, 36 (quoting
Norwood v. McDonald (Ohio 1943), 52 N.E.2d 67, 72). The
maxim, "For every wrong there is a remedy" thus bestows upon
the person who may be wronged the right to seek redress to be
made whole again in an action, whereas the facts which
entitle a claimant to legal redress is denominated the "cause
of action." Remedy is neither "redress" nor "relief."
Remedy is "[tlhe means by which a right is enforced or the
violation of a right is prevented, redressed, or
compensated.I' Black's Law Dictionary 1163 (5th ed. 1979) .
Therefore, the Act does not deny full legal redress or a
speedy remedy. It simply defines what constitutes the facts
which must be established to obtain remedy and redress in the
context of wrongful discharge.
Similarly, the guarantee of a "speedy remedy" in the
first clause of Article 11, 5 16, means such remedy as is
provided by law. This "full legal redress," following the
guarantee of a speedy remedy, refers to the equal right to be
made whole again by what the law defines as a cause of action
and its elements. Legal requirements and restrictions, as
discussed more fully below, may be part of the entire package
the law calls a cause of action, remedy, and redress. These
restrictions and requirements are not established by our
Constitution. Rather, it is the duty of the courts and the
legislature to establish what constitutes available causes of
action, remedies, and redress. Thus, we disagree with the
notion that the proper grammatical and definitional
construction of the words in Article 11, 5 16 of the Montana
Constitution supports the existence of a fundamental right to
redress so that the legislature may not alter causes of
actions except by a showing that the legislation serves a
compelling state interest. There must be the basis or
underpinning of a cause of action and remedy as defined by
the lawmakers before one arrives at the point of redress.
2. The "Intent of the Framers." Basic rules of
construction favor deriving the meaning of Article 11, 5 16,
from its face. From our discussion above, and apart from
what is referred to later in this opinion as the Ashcraft
amendment, it is apparent that the words of Article 11, 5 16,
only mandate that the courts provide equal access to causes
of action and remedies established by the courts or the
legislature. However, even if an ambiguity exists, the
debates at the 1972 Constitutional Convention reinforce our
initial conclusion.
White ' s and Pfost Is interpretation of the effect of the
1972 amendment to the remedy provision ignores the specific
meaning ascribed to the provision during debates at the 1972
Constitutional Convention. Pfost, 713 P.2d at 508 u urn age,
C. J., dissenting). Moreover, the majority's analysis in
these decisions overlooks the explanation of the amendment in
the Official Text with Explanation of the Proposed 1972
Constitution, a document circulated to inform voters of the
content of the Constitution prior to the vote on its adoption
in 1972. Our beginning discussion focuses on the proceedings
at the Constitutional Convention.
The record from the Constitutional Convention of 1972
demonstrates that the addition to Article 111, B 6, was meant
to address a specific problem created by this Court's
interpretation of a workers' compensation statute:

DELEGATE MURRAY: The committee voted unanimously
to retain this section with one important addition.
The provision as it stands in the present
Constitution guarantees justice and a speedy remedy
for all without sale, denial or delay. The
Committee felt, in light of a recent interpretation
of the Workmen's Compensation law, that this remedy
 needed to be explicitly guaranteed to persons who
may be employed by one covered by Workmen's
Compensation to work on the facilities of another.
Under Montana law, as announced in the recent
decision of Ashcraft versus Montana Power Company,
[I56 Mont. 368, 480 P.2d 8121 the employee has no
redress against third parties for injuries caused
by them if his immediate employer is covered under
the Workmen's Compensation law. The committee
feels that this violates the spirit of the
guarantee of a speedy remedy for all injuries of
person, property or character. It is this specific
denial, - - one only, that the committee
and this
intends to alter with the following additional
wording: [Delegate Murray reads the amendment] .

Montana Constitutional Convention, Vol. V, at 1753-54
(emphasis added). Following Delegate Murray's explanation of
the Ashcraft amendment, Delegate Habedank moved for its
deletion:

DELEGATE HABEDANK: Mr. President [Chairman],
ladies and gentlemen. I have no objection to this
being in here if you put it in here with full
knowledge of what you are doing. The decision in
the Ashcraft case, which I heard and which was
brilliantly argued by Mr. Dahood, made quite a
change in what a lot of us thought the law was.
However, they were interpreting a specific statute
of the State of Montana. All that is necessary to
change their interpretation is to amend the statute
of the State of Montana. And you, if you adopt
this particular provision, are writing into the
Constitution by vote of a majority of this group
what I consider to be strictly statutory matter.
Montana Constitutional Convention, Vol. V, at 1755. Delegate
Habedank also expressed concern that the addition would
extend liability for workers' injuries beyond correcting the
decision in Ashcraft:

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

I have heard this argument in the Supreme Court, an
argument that had no basis in logic. I have heard
it by several defense counsel who represent the
best of corporate interests, that this is going to
affect the individual property owner, and if he
hires a contractor, he is going to be exposed to a
liability that is unprecedented and they did not
experience before. This it totally untrue. This
section is doing nothing more, and the wording has
been very precisely selected - - - sure that it
to make - -
does nothing more, than place the injured working
--
man back in the status that he enjoyed prior to
1971, a very basic constitutional right which he
enjoyed for 80 years in the State of Montana. . .
Regardless of all this conflict, this
technicality, having to use the word "Workmen's
Compensation" in this particular section, which we
didn't want to do, because the minute we did it we
knew that somebody would jump up and say it's
legislative, but if you're going to draft something
with precision and you want to make sure - -
that all
that you're doing is returning - - - to what it
the law - -
was prior - -
to thisdecision a year ago, you are
compelled, sometimes, in fasKioning this precise
language to use language that may be seized upon by
someone else as legislative. It is not. It is
giving back a basic constitutional right that the
citizen of Montana had prior to that particular
decision.
Montana Constitutional Convention, Vol. V, at 1255-57
(emphasis added).
It is perhaps ironic that the convention delegates
amended the Constitution to correct this Court's restrictive
interpretation of a legislative enactment, and subsequently
this Court in White and Pfost interpreted the addition to
constrict the power of the legislature to alter the common
law. At any rate, the testimony before the Convention
demonstrates that the amendment to Article 11, Section 16,
was to operate in only one particular area of law.
Specifically, the addition prevents lawmakers, that is both
the courts and the legislature, from denying workers'
compensation claimants a cause - action against negligent
of
third parties for job related injuries. The amendment did
not seek to define "full legal redress" as a fundamental
right which could not be altered by the legislature. The
delegates sought to overturn Ashcraft, not Shea. The entire
discussion presupposes the existence of legislative powers to
alter causes of action, remedies, and redress.
The narrow purpose the delegates ascribed to the change
in the remedy guarantee is further reflected in the Proposed
1972 Constitution for the State of Montana, Official Text
with Explanation, circulated to the voters prior to the vote
on adopting the 1972 Constitution. According to the
explanation in the voters' information pamphlet, the
amendment:

Adds to 1889 constitution by specifically granting
to a person injured in employment the right to sue
a third party causing the injury, except his
employer or fellow employee when his employer
provides coverage under workmens [sic] compensation
laws.

Proposed 1972 Constitution for the State of Montana, Official
Text with Explanation, at 6.
In summary, the history of our remedy guarantee, the
rule that the legislature may alter the common law, and the
wording of Article 11, 5 16, support Hillhaven's assertions
that no fundamental right exists to the common-law claims
asserted by Meech. The role the judiciary must maintain in
interpreting constitutional limitations affecting the plenary
power possessed by the people through their legislature, and
through their initiative a n d referendum powers, also supports
Hillhaven's assertions.

D. Deriving A New Fundamental Right From Article 11,
S 16, Violates Separation Of Powers.

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

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

[A] constitutional provision that courts of justice
shall be open to every person, and speedy and
certain remedy afforded for every wrong and for
every injury to person, property, or reputation, is
-
not intended - - limitation upon the legislative
as a
branch of the government where the leaislation - -
2 2 -

i n v o l v e d deals with rightful subjects of
legislation.
16A Am. Jur. 2d Constitutional Law 5 616, at 564 (2d ed.
1979) (emphasis added); and see Salt Lake City v. Utah ~ i g h t
& Traction Co. (Utah 1918), 173 P. 556 (provision only
applies to judicial questions, not meant to allow courts to
usurp legislative power); Wagoner County Election Board v.
Plunkett (Okla. 1956) , 305 P. 2d 525 (provision provides
mandate to judiciary, not intended as a limitation on
legislative branch) .
The interpretation of Article 11, Section 16, called for
by Meech would prevent the legislature and the people through
the initiative process from restricting or modifying the
common law relative to injuries of person, property, or
character. Only this Court's reasoning (good or bad),
however, would restrict this Court ' s own lawmaking function.
Our decision to limit a cause of action would withstand the
strict scrutiny mandated by Article 11, S 16; we would be
applying the test. But a similar decision made by the
legislature could be subject to much closer scrutiny. This
Court would act as the ultimate authority in a vast,
expanding, and ever changing field of law governing important
social and economic rights and duties. It could exclude the
legislature from deciding: What are injuries to an
individual's person, property, or reputation; what wrongs are
actionable; what remedies are available; and what redress
will be given. The present appeal presents this separation
of powers issue.
Gates expanded the law of wrongful discharge by defining
as an injury the breach of the implied covenant of good faith
and fair dealing. Similarly, Nicholson defined the same
injury in the context of a leasehold dispute. Under White's
and Pfost's interpretation of Article 11, 5 16, those
recently recognized injuries would remain a part of our law
despite a legislative mandate to the contrary. Any change in
such determinations could only be accomplished through
constitutional amendment. We agree with Chief Justice
Turnage's dissent in Pfost on this aspect of the issue:

There further can be no question that our courts
are open to every person and speedy remedy afforded
for every injury of person, property, or character;
however, this does not mean that the people have
been denied the right to act through their
legislature in providing a system of law that may
set forth the scope and extent of the remedies
provided by law. For this Court to decide
otherwise requires a denial of the doctrine of
separation of powers in Article 111, Section 1, of
the Montana Constitution.
Pfost, 713 P.2d at 514 (Turnage, C.J., dissenting).

E. Meech's Arauments Are I n a ~ ~ o s i t e .

Meech has several contentions addressing the arguments
supporting Hillhaven's position. First, Meech points out
that in State ex rel. Montana Citizens for the Preservation
of Citizens1 Rights v. alterm mire (Mont. 1987), 738 P.2d
1255, 44 St.Rep. 913, this Court declared null and void the
effect of a voter initiative passed in 1986 amending Article
11, 16, to overrule White and Pfost. The amendment was
held invalid because of an error in the voter information
pamphlet. Montana Citizens, 738 P.2d at 1264. Meech asserts
that the fundamental right to full legal redress remains in
Montana law because the legislature passed the Act under the
authority of the invalid amendment.
This proposition depends on the continued vitality of
White and Pfost. We are overruling White and Pfost and any
decisions relying on White and Pfost to the extent that they
hold Article 11, $ 16, guarantees a fundamental right to a
particular cause of action, remedy, or redress.
 Meech further contends that the legislation at issue in
Shea must be distinguished from the Act. Meech asserts that
in Shea, the modification of common law benefited workers,
but here, according to Meech, the legislation only "creates
employers' defenses and eliminates many employees' claims for
recovery." We disagree that the Act must be distinguished
-
from the legislation at issue in Shea for the purpose of
testing its constitutionality under Article 11, § 16. Shea
analyzed the trade-off in employees' and employers' interests
as a result of the passage of workers' compensation
legislation, but the holding rested on an interpretation of
Article 111, § 6, as only a mandate to the courts to provide
for the equal administration of justice. Shea, 179 P. at
502. Thus, Shea does not require this Court to analyze
whether the Act provides an adequate trade for the loss of
common-law wrongful termination claims.
However, this Court's decision in Corrigan could be
construed as placing this jurisdiction in with those that
require an adequate substitute for legislative acts
abrogating common-law remedies. See B. R. Burke,
Constitutional Initiative - - Constitutional Rights did
30: What
Montanans Surrender - Hopes - Securing Liability Insurance,
in of
48 Mont. L. Rev. 53, 66 (1987). Even if Montana law required
an adequate substitute for legal remedies abrogated by the
legislature, as explained below, we disagree that no adequate
remedy for common-law wrongful discharge exists under the
Act. Therefore, we do not reach the issue.
In conclusion, we answer, "No" to the first question
submitted by the United States District Court. Article 11, S
16, does not render the Act unconstitutional as depriving an
individual, in this case Meech, of a fundamental right to the
common-law actions he alleges.
 11.
THE ACT SURVIVES EQUAL PROTECTION SCRUTINY BECAUSE IT IS
RATIONALLY RELATED TO A LEGITIMATE STATE INTEREST.

The second question certified from the United States
District Court concerns the validity of the Act's specific:
limitations on damages. The issue as framed is whether the
Act's prohibition on the recovery of noneconomic damages and
punitive damages violates Article 11, 5 16. Our discussion
in answer to this question necessarily extends to an analysis
of the equal protection guarantee found in Article 11, 5 4 of
the Montana Constitution.
White and Pfost interpreted Article 11, S 16, as
guaranteeing a fundamental right of full legal redress for
"all recognized compensable components of injury, including
the right to be compensated for physical pain and mental
anguish and the loss of enjoyment of living." White, 661
P. 2d at 1275. These decisions then went on to hold that the
legislation at issue violated the equal protection guarantee
because no compelling state interest justified denying the
fundamental right found in Article 11, S 16, to the class of
claimants affected by the damages limitation at issue. Here,
the question involving the Act's damages limitation is
similar, and more properly framed as:

Do the limitations on the recovery of certain
damages in the Act violate equal protection because
the Act unconstitutionally burdens a class of
claimants seeking damages for wrongful discharge?
Selection of the proper equal protection test is our first
task in determining this issue.
As discussed in the previous section, no fundamental
right to "full legal redress" exists under Article 11, S 16.
Meech alleges no other infringement of fundamental rights by
operation of the Act, and no suspect classifications are
involved. The strict scrutiny test applies only where
legislative classifications infringe on a fundamental right,
or where the legislature employs suspect classifications such
as race or national origin to define the benefited or
burdened class. See J. E. Nowak, R. D. Rotunda, & J. N.
Young, Constitutional Law Ch. 16, 5 I, at 596-98 (2d ed.
1983). Therefore, the strict scrutiny test does not apply.
We also refuse to employ middle tier scrutiny to analyze
classifications created under the Act. The United States
Supreme Court has employed the middle tier criterion in only
a few situations which are not applicable here. See
generally Butte Community Union v. Lewis (1986), 219 Mont.
426, 432-33, 712 P.2d 1309, 1312. This Court's decisions
have applied the test only where specific directives in the
Montana Constitution protected interests in education and
welfare. See Butte Community Union, 712 P.2d at 1314;
Deaconess Medical Center of Billings Inc. v. Department of
Social and Rehabilitation Services (Mont. 1986) , 720 P. 2d
1165, 43 St.Rep. 1112; State ex rel. Bartmess v. Board of
Trustees (Mont. 1986), 726 P.2d 801, 43 St.Rep. 1713. Our
interpretation of Article 11, $ 16, as only a directive to
the courts distinguishes the interest at issue here from the
interests at stake in those cases.
We determine that the proper level of scrutiny for the
classifications created by the Act's limitation on employers'
liability is provided by the rational basis test. We further
find that the Act's provisions on damages pass equal
protection muster because the Act's disparate treatment of
similar claims is rationally related to a legitimate state
interest.
Until recently, the fundamental body of law governing
available damages in the employment area has been contract
law. Courts, by virtue of their power to alter the common
law, have expanded employers' liability by recognizing tort
claims in the employment context. The legislature has now
acted to reverse this trend by restricting damages for
wrongful discharge. This decision to limit liability
"emerges as a classic example of an economic regulation--a
legislative effort to structure and accommodate 'the burdens
and benefits of economic life.'" Duke Power Co. v. Carolina
Environmental Study Group (1978), 438 U.S. 59, 83, 98 S.Ct.
2620, 2636, 57 L.Ed.2d 595, 617-18. A statutory "limitation
on recovery is a classic economic regulation, . . . [which]
must be upheld if it is reasonably related to a valid
legislative purpose." Boyd v. Bulala (W.D. Va. 1986), 647 F.
Supp. 781, 786 (finding heightened scrutiny inappropriate for
reviewing liability-limitation under requirements of
Virginia's remedy guarantee).
The Court in Duke Power pointed out that use of the
rational basis test harmonizes with the ru1.e that the
legislature may alter the common law:

Our cases have clearly established that "[a] person
has no property, no vested interest, in any rule of
the common law." [citation omitted]. The
"Constitution does not forbid the creation of new
rights, or the abolition of old ones recognized by
the common law, to attain a permissible state
object," [citation omitted], despite the fact that
"otherwise settled expectations" may be upset
thereby.
Duke Power, 438 U.S. at 88, n. 32. The California Supreme
Court also emphasized that where the legislature may alter
the common law, the rational basis test applies to testing
liability-limitations:
 [Olur past cases make clear that the Legislature
retains broad control over the measure, as well as
the timing, of damages that a defendant is
obligated to pay and a plaintiff is entitled to
receive, and that the Legislature may expand or
limit recoverable damages so long as its action is
rationally related to a legitimate state interest.
Fein v. Permanente Medical Group (Cal. 19851, 695 P.2d 665,
680 (emphasis in original). This Court, too, in Reeves,
recognized that the rational basis test applied to analyzing
whether liability-limitations imposed through a special
statute of limitations for architects and builders violated
equal protection:

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

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

must not be concerned with the expediency of the
statute:
"What a court may think as to the wisdom or
expediency of the legislation is beside the
question and does not go to the constitutionality
of the statute. We must assume that the
Legislature was in a position and had the power to
pass upon the wisdom of the enactment, and in the
absence of an affirmative showing that there was no
valid reason behind the classification, we are
powerless to disturb it."
McClanathan v. Smith (1980), 186 Mont. 56, 66, 606 P.2d 507,
513 (quoting State ex rel. Harnmond v. Hager (1972), 160 Mont.
391, 399, 503 P.2d 52, 56). Moreover, in "applying the equal
protection clause to social and economic legislation, great
latitude is given to state legislatures in making
classifications." McClanathan, 606 P.2d at 513.
The remedy provision in the Act, set out below, arguably
classifies wrongful. discharge claimants based on the
magnitude of harm:

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

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

There is no vested right to exemplary damages and
the legislature may, at its will, restrict or deny
the allowance of such damages.
22 Am. Jur. 2d Damages 5 239, at 326 (2d ed. 1965). See also
White, 661 P.2d at 1276 (tort claimants have no
constitutional right to punitive damages). We hold that the
Act's provision on punitive damages is constitutional.
We also hold that the Act's classification of claims by
available remedies passes equal protection muster. Again,
these types of limitations are not new to law. Limitations
on recovery for wrongful death, for recovery against common
carriers, and limits for damages on baggage claims are
classic examples of liability-limitations. As explained
below, we conclude that that the Act rationally relates to
promoting a legitimate state interest.
The legislative history of the Act demonstrates that
lawmakers perceived an unreasonable financial threat to
Montana employers from large judgments in common-law wrongful
discharge claims. Testimony in legislative hearings also
indicated to legislators that large judgments in common-law
wrongful discharge cases could discourage employers from
locating their businesses in Montana. The Act's limitation
on damages is intended to alleviate these threats.
Therefore, the Act passes muster on this leg of the test
because promoting the financial interests of businesses in
the State or potentially in the State to improve economic
conditions in Montana constitutes a legitimate state goal.
Buckman v. Deaconess Hospital (Mont. 1986), 730 P.2d 380,
386, 43 St.Rep. 2216, 2223.
We also conclude that the Act relates rationally to
promoting Montana's economic interests. Some awards for
common-law wrongful discharge have included wages which
extend far into the claimant's employment future. See Stark
v. Circle K Corp. (Mont. 1988), 751 P.2d 162, 45 St.Rep. 371.
The effect of the Act's limitations on damages to four years
lost wages rationally relates to reducing this potential
liability. Moreover, the limit itself is not irrational or
so arbitrary that the classification it creates violates
equal protection. As a matter of policy, the legislature
determined that four years should be the maximum period for
consideration of wage loss reasoning that claimants could
generally be expected to find similar employment by the end
of this period. The time period in any given claim is
necessarily speculative. However, statistics before the
legislature supported the conclusion that most wrongful
discharge claimants with reasonable diligence will obtain
other employment within the four year period. Therefore,
judicial deference for the time period at issue is
appropriate. See e.g., Duke Power, 438 U.S. at 91. The same
sort of analysis applies to the Act's limitations on damages
for pain and suffering and emotional distress; the
restriction on recovery rationally relates to the
legislature's legitimate purpose of limiting employers'
liability for wrongful discharge.
It could be surmised too that this particular limitation
relates rationally to another legitimate legislative aim,
that is, it provides for greater certainty in defining an
employer's duties by recalling a contract law limitation on
damages for pain and suffering. See e.g., S 27-1-310, MCA.
As a corollary to this purpose, a greater certainty of the
rights of employees also exists under the Act as a result of
the "good cause" requirement.
For example, in computing contract damages according to
the contemplation of the parties, recovery for

mental anguish is not, as a general rule, allowed.
... the courts evidently believe that the mental
suffering which accompanies a breach of contract is
too remote for compensation.
22 Am. Jur. 2d Damages § 195 (2d ed. 1965). Montana follows
the general rule by prohibiting damages for emotional or
mental distress in most contract actions. Section 27-1-310,
MCA. In contrast, the law generally permits a broader
measure of damages in personal injury actions:

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

For the breach of an obligation not arising from
contract, the measure of damages, except where
otherwise expressly provided by this code, is the
amount which will compensate for all the detriment
proximately caused thereby, whether - could -
it -
have
been anticipated - -
or not.
Section 27-1-317, MCA (emphasis added).
The differences in calculating personal injury damages
and contract damages points out a problem with the emergence
of tort claims in the employment relationship. Tort claims
for at-will employees compensate for these workers' inability
to control the term of their employment. Gates, 638 P.2d at
1066. Employers, however, are unable to plan for the
extensive liability which may arise from damages available in
these claims. Testimony in legislative hearings indicated
that this is a source of great discontent in the Montana
business community. The Act's limitation on noneconomic
damages applies long-standing contract law in an attempt to
solve this problem by dictating a more objective measure of
damages. Under the Act, employers benefit because their
potential liability is made more certain. Meanwhile,
employees' control over the manner in which they are
discharged remains, in part, as a result of the Act's "good
employees' cause" requirement. The Act, in making this
trade, is in no sense irrational. Therefore, classifications
in the Act satisfy the requirements of the rational basis
test.
Finally, we address the argument mentioned above that
Shea requires the legislature to provide adequate substitutes
for causes of action abrogated by statute. The Court in Duke
Power faced a similar contention based on the Due Process
Clause of the United States Constitution:

The District Court held that the Price-Anderson Act
contravened the Due Process Clause because " [tlhe
amount of recovery is not rationally related to the
potential losses"; because " [tlhe Act tends to
encourage irresponsibility in matters of safety and
environmental protection . . .
"; and finally
because " [tlhere is no quid pro quo" for the
liability limitations. 4 3 1 F. Supp. at 2 2 2 - 2 2 3 .

Duke Power, 4 3 8 U.S. at 8 2 . The Court in Duke Power resolved
the argument for requiring a -- quo as follows:
quid pro

Initially, it is not at all clear that the Due
Process Clause in fact requires that a
legislatively enacted compensation scheme either
duplicate the recovery at common law or provide a
reasonable substitute remedy. However, we need
not resolve the question here since the
Price-Anderson Act does, in our view, provide a
reasonably just substitute for the common law or
state law remedies it replaces.
Duke Power, 4 3 8 U.S. at 8 8 .
Here, too, the benefits of the Act for employees are not
illusory. Therefore, we need not reach the issue as posed by
Meech because the Act provides a reasonably just substitute
for the common-law causes it abrogates.
In some situations the Act may benefit employees by
eliminating common-law defenses formerly available. For
example, in Prout v. Sears (Mont. 1989), 772 P.2d 288, 46
St.Rep. 257, a majority of this Court explained that under
prior Montana law, an employer could defend a discharge suit
by claiming that the employee was let go for no cause:

At the same time we give effect to the employment
application and record time card. These give the
employer the right to fire without cause.
Prout, 7 7 2 P. 2d at 2 9 2 (emphasis added) . Under the Act, the
no-cause defense for discharging an employee who has worked
beyond the probationary period is unavailable to most
employers. Instead, employers may be subject to discharge
only for good cause defined as:

"Good Cause" means reasonable job-related grounds
for dismissal based on failure to satisfactorily
perform job duties, disruption of the employer's
operation, or other legitimate business reason.
Section 39-2-903 (5), MCA. Similarly, the good-cause
provision may provide greater protection for an employee
whose employer has carefully avoided giving objective
manifestations of continued employment, a requirement for
maintaining a cause of action for violation of the covenant
of good faith and fair dealing under the former law. Stark,
751 P.2d at 166. Imposition of a good-cause requirement in
discharge may also provide greater employee protection in
situations, as in Prout, where employers sought to disclaim
in the employment contract any objective manifestations of
continued employment. The Act's provision allowing claims
for prejudgment interest also betters the prior common-law
provisions for recovery.
In addition to the amount awarded for lost wages,
pensions, insurance benefits, and vacation time may be
considered as fringe benefits under the statute. Section
39-2-903(4), MCA. All fringe benefits which would have
accrued during the four year period following the discharge
are available as damages under the Act. Therefore, the Act
contemplates allowing some recovery for wrongful discharges
which would otherwise deny retirement benefits, and more.
To summarize, greater certainty in the law may alleviate
problems experienced by both employers and employees. As
explained by one commentator:

[Tlhe employees who benefit [under common-law cause
of action] are few and far between, first, because
of the difficulties involved in staying the course
of a lengthy and expensive judicial process, and
second, because of limitations inherent in the
legal doctrines adopted by the courts.
Gould, Stemming the Wrongful Discharge - - - -
Tide: A Case for
Arbitration, 13 Emp. Rel. L.J. 404, 413 (1988). Therefore,
Meech's argument that the Act provides an inadequate trade
for prior common-law actions fails to provide authority for
finding the Act unconstitutional.
In conclusion, Montana's remedy clause seeks to
guarantee equal access to courts to obtain remedies for
injuries as provided by governing law. It does not, however,
impart a definition of what the law considers a remedy or
full legal redress. Nor does it empower this Court to
exclude the legislature from defining what are legal
injuries.
Finally, we make clear here that the proper test to
apply to the Act's classifications burdening one class and
not another, is the rational basis test. The classifications
created under the Act at issue here survive scrutiny under
this test, and even if Montana law required a quid - quo
pro
for the old causes of actions, the Act provid-es a reasonable
substitute. Thus, we answer "No" to both questions posed by
the United States District Court.

&if'&~M$&
Justice
We Concur:
/'
'
)

'Chief Justice

Justices
Mr. Justice John C. Sheehy, dissenting:

This is the blackest judicial day in the eleven years
that I have sat on this Court. Indeed it may be the blackest
judicial day in the history of the state. Certainly this
decision is more regressive than the ill-boded Ashcraft v.
Montana Power Company (1971), 156 Mont. 368, 480 P.2d 812
case, which deprived injured workers of their full legal
redress against third party tortfeasors. The decision today
cleans the scalpel for the legislature to cut away
unrestrainedly at the whole field of tort redress. Perhaps
worse by this decision today, the Court throws in the sponge
as a co-equal in our tripartite state government.
I.
For the reader to understand the drastic ramifications
of the "Wrongful Discharge From Employment Act" the whole of
the Act must be set out. The legislation passed as Ch. 641,
Laws of Montana (1987). A full copy of the text is attached
to this dissent as Exhibit A. The bracketed numbers thereon
indicate the present number of the code sections of the Act
as they now appear in Montana Code Annotated.
The contraction of what was once in this state the tort
of wrongful discharge is found principally in three sections
of the Act, Section 4 [ § 39-2-904, MCA], Section 5 [ §
39-2-905, MCA] and Section 8 [ B 39-2-913, MCA].
Under Section 4 of the Act [ § 39-2-904, MCA] grounds for
wrongful discharge are limited to three possibilities:
(1) It was in retaliation for the employees
refusal to violate public policy or for reporting a
violation of public policy;
(2) The discharge was not for good cause and the
employee had completed the employers probationary
period of employment; [under the Act, a probationer
 has absolutely no right of recourse for a wrongful
discharge] or
(3) The employer violated the express provisions
of its own written personnel policy.
The attorneys in this case supporting the Wrongful
Discharge From Employment Act filed briefs claiming that it
provided great new rights for discharged workers. Not true.
Each of the elements listed above was established by this
Court in decisions heretofore made and each was fully
available to wrongfully discharged. employees, including
probationers. Thus, the first element was recognized in
Kenneally v. Orgain (1979), 186 Mont. 1, 606 P.2d 127, where
we said:
... It is only when a public policy is violated
in connection with the wrongful discharge that the
cause of action arises. Examples given by the
courts are: refusal to perjure himself in the case
of one employee; firing of another employee for
asserting a right to obtain Workers' Compensation
benefits to which he was statutorily entitled.; and
refusal of sexual relations.

- 186 Mont. at 6, 606 P.2d at 129.
Id.,
As to the second element, where the discharge of the
employee was not for good cause, we had protected the
employee in cases before the adoption of this Act. In
Ameline v. Pack and Company (1971), 127 Mont. 301, 45 P.2d
689, this Court found that the employer had not established
good cause in the termination of an employee before the end
of his one-year contract. Our recent cases of Prout v. Sears
Roe Buck and Co., (No. 88-117, Mont. Decided February 16,
1989), 772 P.2d 288, 46 St.Rep. 257, and Hobbs v. Pacific
~ide and Fur (No. 84-437, Mont. ~ecidedMarch 31, 1989), 771
P.2d 125, 46 St.Rep. 544, confirmed that a discharge must be
for good cause after the probationary period has elapsed.
These and other cases relied on the implied covenant of good
faith and fair dealing.
The third element for which wrongful discharge is
granted under the Act is if the employer violates the express
provisions of its own written personnel policy. Here again,
the legislature granted nothing that had not already been
firmly established in our decisions. In Dare v. Montana
Petroleum Marketing Company (1984), 212 Mont. 274, 687 P.2d
1015 (Weber, J.) , we held that even an employment handbook
promulgated by the employer was not essential for a cause of
action for a breach of the implied covenant of good faith and
fair dealing stating that:
... [A]n employee is protected from bad faith or
unfair treatment by the employer to which the
employee may be subject due to the inherent
inequality of bargaining power present in many
employment relationships.. . .
- 668 P.2d at 1020, 212 Mont. at 282.
Id.,
violation of the employer's handbook procedures for
termination which gave rise to a wrongful discharge action
was firmly established in Gates v. ~ i f e Montana Insurance
of
Company (1982), 196 Mont. 178, 638 P.2d 1063, and Gates v.
Life of Montana Insurance Company (1983), 205 Mont. 304, 668
P.2d 213. We followed that rule in Stark v. Circle K
Corporation (1988), - Mont . -, 751 P.2d 162; and Kerr v.
Gibson's Products Company of Bozeman (19871, - Mont . I

733 P.2d 1292 (Turnage, J . ; ~laniganv. prudential savings
and Loan ~ssociation (1986), 221 Mont. 419, 720 P.2d 257;
Krenshaw v. Bozeman Deaconess ~ospital (1984), 213 Mont. 488,
693 P.2d 487;
The elements of wrongful discharge, as found in the Act,
therefore, are but restatements of cases based on some
judicial policy heretofore promulgated by this Court. While
perforce, the legislature had to recognize at least those
three elements of wrongful discharge, it took care to provide
that - significant amount of damages could - recovered by -
no be a
wrongfully discharged employee even under those elements. A
wronged employee's remedies are nearly emasculated under the
Act.
Section 5 of the Act [ S 39-2-905, MCA] describes the
recoverable remedies for a wrongfully discharged employee.
He or she may recover no more than four years of lost wages
and fringe benefits - -both of which are deducted amounts
from -
the employees earned or could have earned with reasonable
diligence during that period. Since Section 6 of the Act [ S
39-2-911, MCA] limits suits to one year from the date of
discharge, the employee's loss is wholly speculative.
Section 5 of the Act completely wipes out any right of
any discharged employee to damages for pain and suffering,
emotional distress, compensatory damages or any other form of
damages except the four years of mitigated lost wages and
fringe benefits. These stricken elements of damages are
traditionally allowed against tortfeasors, elements which we
have supported in any number of cases, as proper items of
recovery.
Finally, to make certain that a wronged employee would
have to take his or her lumps without a legal basis for
proper recovery, the legislature adopted Section 8 [ S
39-2-913, MCA] which states that no claim for discharge may
arise from a tort or express or implied contract except as
provided in the Act itself. The real purpose of Section 8 is
to negate by elimination any possible employee claim of tort
based upon an implied covenant of good faith and fair dealing
in the employment contract. This provision takes Montana out
of the mainstream of American legal thought.
Restatement (Second) of Contracts, 205, provides:
 Duty of good faith - - dealing.
and fair Every
contract Imposes upon each party a duty of good
faith and fair dealing in its performance and its
enforcement.
The duty of "good faith" is incorporated in the Uniform
Commercial Code [ S 30-1-201(19); S 30-1-208, MCAI. A large
and important body of oil and gas law is based upon implied
covenants contained in oil and gas leases and other
instruments. This Court has recognized that an implied
covenant of good faith and fair dealing attends insurance
policies. First security Bank of Bozeman v. Goddard (1979),
181 Mont. 407, 593 P.2d 1040; State ex rel. Larson v.
~istrict Court (1967), 149 Mont. 131, 136, 423 P.2d 598, 600.
We have also found a remedy for the breach of the implied
covenant in the employment cases noted above, in Dare v.
Montana Petroleum Marketing Company (19841, 212 Mont. 274,
687 P.2d 1015; in the attorney-client relationship, Morsen v.
. ,
Espeland (1985), - Mont - 696 P.2d 428; and in the
dealings by banks with their customers, ribb by v.
Northwestern Bank of Great Falls (1985), - Mont. - 704 ,
P.2d 409; First ~ationalBank in ~ i b b yv. Twombly (1984), 213
Mont. 66, 689 P.2d 1226. We found an implied covenant of
good faith and fair dealing in real property lease agreements
in ~icholsonv. United pacific Insurance Company (1985), -
Mont . - 710 P.2d 1342.
,
The implied element of "good faith" connotes a moral
quality "honesty of person, freedom from fraudulent intent,
and faithfulness to duty or obligation." Raab v. Casper
(1975), 124 Cal.Rptr. 590, 51 Cal.3d 866; Restatement
(Second) of Contracts, S 205.
The nature and extent of an implied covenant of good
faith and fair dealing is measured in any particular contract
by the justifiable expectations of the parties to the
contract. Nicholson, supra.
The approval by this Court in this case of the
elimination by the legislature of the element of good faith
and fair dealing in employment contracts has the effect of
reversing all of the employment cases this Court has handed
down in the last decade. The elimination has a profound
effect on the recovery of punitive damages. Although the Act
here in question provides [Section 5 ( 2 ) 1 for punitive damages
in case of actual fraud or actual malice on the part of the
employer, unless an employee can show an implied covenant of
good faith and fair dealing in his employment contract, he
will find no basis upon which punitive damages can be awarded
to him.
The legislature, in effect, has converted the tort of
wrongful discharge into a sort of contract action by the
adoption of the Wrongful isc charge From Employment Act. The
legislature refused, nonetheless, to provide all the elements
of the damages allowable for breach of contract which
ordinarily would compensate the party aggrieved for all of
the detriment proximately caused by the breach and in the
ordinary course of things likely to result therefrom.
Section 27-1-311, MCA.
In a recent case, the Supreme Court of Nevada in K-Mart
Corporation v. Ponsock (Nev. 1987), 732 P.2d 1364, found the
implied covenant of good faith and fair dealing in the
employment contract, and stated that even contract damages
were inadequate in this type of case. The Nevada Court said:
In this case we have a contract in which the
relationship with the parties is in many ways
analogous to those present in an insurance
contract. Ponsock was just as dependent in
"specially relying" on K-Mart's commitment to his
extended employment and subsequent retirement
benefits as is an insurance policyholder dependent
 on the good faith indemnity promised by the
insurance carrier. The special relationships of
trust between this employer and this employee under
this contract under this kind of abusive and
arbitrary dismissal cries out for relief and for a
-
remedy beyond that traditionally flowing from
breach of contract. To permit only contract
damages as the sole remedy for this kind of conduct
would be to render K-Mart totally unaccountable for
these kinds of actions. If all a large corporate
employer had to do was to pay contract damages for
this kind of conduct, it would allow and even
encourage dismissals of employees on the eve of
retirement with virtual impunity. ~ a v i n g to pay
only contract damages would offer little or no
determent to the types of practice apparently
engaged in by K-Mart In this case. Further, an
aggrieved employee, relying on, and anxiously
awaiting his retirement benefits would not be made
whole by an award of contract damages resulting
from wrongful discharge, even if he were awarded
the expected retirement benefit ... After
involving itself in a relationship of trust and
special reliance between itself and its employee
and allowing the employee to rely and depend upon
continued employment and retirement benefits, the
company, to serve its own financial ends,
wrongfully and in bad faith breached the employment
agreement. The jury specifically found this
reliance and concluded that K-Mart was guilty of
bad faith . .. (Emphasis in original.)
Id.,732 P.2d at 1372.
-
It is evident that the Wrongful isc charge From
Employment Act adopted by the Montana legislature purporting
to give a wronged employee some rights, instead, took away
any possible right of meaningful recovery. The ominous
implications of this Act for all employees not working under
a union contract cannot be overstated. The longer the
employee works for an employer, the greater reliance the
employee places upon the employer's proffer of fringe
benefits and retirement allowances, then the more the
employee is at risk to be discharged, because the economic
result of a wrongful discharge to the employer, even if the
employee's suit under the Act should be successful, is
nothing but paltry damages to the employee and possible
profit to the employer. The lack of legislative clout of the
unorganized workers, although they may comprise a majority of
the workers in this state, is demonstrated in that this
patently unfair legislation in 1987 passed the State Senate
without a no vote on third reading, and with but 16 no votes
out of 100 in the State House of Representatives.

When law can do no right
[Then] it be lawful that law can bar no wrong.
-~illiam Shakespeare, ~ i n q John (Magna ~arta's
John) Act 111, Scene i.
Four centuries ago ~illiamShakespeare stated in capsule
the view of the majority of this Court in upholding the Act.
The majority view is that the legislature can abolish any
right of recovery and when it does courts are barred from
awarding "full legal redress" under Art. 11, Sec. 16, Montana
State Constitution. So holding, the majority airily overrule
Pfost v. State (1986), 219 Mont. 206, 713 P.2d 494; white v.
State (1983), 203 Mont. 363, 661 P.2d 1272 and orr rig an v.
Janney (1981), - Mont . - 626 P.2d 838. We submit that
,
not only are these reversals overbroad, but they are clearly
in error.
First let us examine the overruled cases. Corrigan - v.
Janney, supra, involved an appeal from a summary judgment
granted in the District Court against a plaintiff in a
wrongful death case. Janneys had leased living quarters to
the Corrigans, and the leased premises were defectively wired
so that Max Corrigan came in contact with the faucet on a
bathtub and received an electrical shock which ultimately
caused his death. The District Court, reading earlier cases
of this Court, decided that there was no cause of action by a
tenant against the landlord for such a defect and granted
summary judgment. his Court held (~arrison, J.) that there
is in modern day usage a need for rental houses to be
suitable for human occupation and that a cause of action for
wrongful death in this case did exist. The Court cited Art.
11, Sec. 16 of the Constitution and went on to state:
It would be patently unconstitutional to deny a
tenant all the causes of action for personal
injuries or wrongful death arising out of the
alleged negligent management of rental premises by
a landlord. If this action were to be taken away,
a substitute remedy would have to be provided.
Arguably, the repair and deduct statute provides an
alternative remedy for damage to the leasehold
interest. However, in no way can it be considered
an alternative remedy for damages caused by
personal injury or a wrongful death. (Emphasis
supplied.)

- 626 P.2d at 840.
Id.,
Justice Harrison then noted a controlling statute and
went on to state:
In summary, we overrule Dier v. Mueller, supra, and
hold that our Constitution requires that plaintiff
have a form of redress for wrongful death and
survivor damages. We hold that 5 58-607 R.C.M.
(1947), is controlling and that one is responsible
for injury occasioned to another by want of
ordinary care subject to the defenses and
contributory negligence or assumption of risk.
Id., 626 P.2d at 841.
-
Thus Corrigan held that S 58-607 provided a statutory
basis for recovery in this wrongful death case, and that Art.
11, Sec. 16 constitutionally guaranteed the right of redress
in that case. Why the majority overrules that case is beyond
my conjecture.
In White - State, supra, Karla white sued the State of
v.
Montana alleging that the State was grossly negligent in
permitting an allegedly violent and dangerous person to
escape from the mental hospital at Warm springs and to remain
free for a period of 5 years without serious attempts to
locate and reincarcerate the escaper. Karla was brutally
attacked by this individual about 5 years after he had
escaped from Warm springs.
The legislature meanwhile had passed S 2-9-104, MCA,
which provided that any governmental unit, including the
State, was not liable for noneconomic damages, nor for any
economic damages in excess of $300,000 for any one claimant.
If this statute were upheld, Karla's right of recovery,
premised upon severe emotional injuries which she received
from the attack but insignificant economic damages, would be
effectively wiped out. The District Court held that the
statutory limitation on governmental liability for damages
was unconstitutional and granted summary judgment in favor of
Karla. The State appealed to this Court, which said:
Article 11, Section 16 of the Montana Constitution
guarantees that all persons shall have a "speedy
remedy ... for every injury of person, property,
or character. " In Corrigan v. Janney (1981),
Montana, 626 P.2d 838, this Court held that it is
"patently unconstitutional" for the legislature to
pass a statute which denies a certain class of
Montana Citizens their causes of action for
personal injury and wrongful death. We affirm and
redefine our holding in Corrigan v. Janney, supra;
we hold that the Montana Constitution guarantees
that all persons have a speedy remedy for every
injury. The language "every injury" embraces all
recognized cornpensable components of injury
including the right to be compensated for physlcal
7 -
pain - mental angulsh - - -loss of enjoyment
and and the -
of llvlng.
- hes sf ore, strict scrutiny attaches.
(Emphasis supplied.)
Id., 661 P.2d at 1275.
-
In white, this Court found no compelling state interest
to classify tortfeasor victims on whether they had been
injured by a nongovernment tortfeasor or by a government
tortfeasor. The Court struck down a statute which allowed
recovery to plaintiffs damaged economically up to $300,000,
but totally denied recovery for noneconomic damages; and
further, the statute classified victims of government
tortfeasors by the severity of the victim's injuries.
It should be clear to all that 5 2-9-104, MCA, denied
the equal protection of the law to white because the statute
discriminated between tortfeasors injured by government
agents or by private defendants; and as between persons
injured by government tortfeasors, it discriminated on the
basis of economic and noneconomic damages. Certainly this
Court in white enforced the state constitutional mandate to
courts that "Right and justice shall be administered
without ... denial . . ."
Art. 11, Sec. 16.
Before adverting to Pfost 1 State, supra, we set out
.
for the convenience of the reader the full text of Art. 11,
Sec. 16, of the State Constitution:
Courts of justice shall be open to every person,
and speedy remedy afforded for every injury of
person, property, or character. No person shall be
deprived of this full a redress for injury
incurred in employment for which another person may
be liable except as to fellow employees and his
immediate employer who hired him if such immediate
employer provides coverage under Workmens'
Compensation Laws of this state. Right and justice
shall be administered without sale, denial, or
delay. (Emphasis added. )
Pfost - State involved a plaintiff who had been injured
v.
when his truck-tractor collided with a bridge on an extremely
icy and hazardous highway. He alleged no precautions had
been taken by the State to remedy the hazardous condition
although three separate wrecks had occurred prior to Pfost's
arrival. Pfost suffered injuries which eventually made him a
quadriplegic. He sought compensatory damages of 6 million
dollars. In the meantime, the legislature had adopted a new
statute regarding the liability of the State in tort cases,
limiting any or all recovery to $300,000 for a single person.
Section 2-9-107, MCA. Pfost's medical expenses alone
exceeded that sum. The District Court held the statute to be
unconstitutional as a denial of equal protection and the
State appealed. In Pfost, we followed White - State, supra,
v.
holding that Art. 11, Sec. 16, 1972 of Montana constitution,
granted a fundamental right to access to courts for a full
legal redress and on the basis of equal protection found that
S 2-9-107, MCA, discriminated improperly between those with
minor injuries and those with catastrophic injuries resulting
from the tort of a government agent. In passing on the
language of Art. 11, Sec. 16, supra, we stated:
The use of the clause "this full legal redress" has
major significance. It obviously and grammatically
refers to the "speedy remedy afforded for every
injury of person, property, or character." The
adjective "this" means the person, thing, or idea
that is present or near in place, time, or thought
or that has just been mentioned. Websters New
Collegiate ~ictionary (1981). The constitutional
framers thus construed a "speedy remedy" as
comprehending "full legal redress." A state
constitutional right to full legal redress was
thereby created. Any state statute that restricts,
limits, or modifies full legal redress for injury
to person, property, or character therefore affects
a fundamental right and the State must show a
compelling state interest if it is to sustain the
constitutional validity of the statute.

Pfost, 713 P.2d at 503.
The majority object to our grammatical interpretation in
Pfost of Art. 11, Sec. 16, as "flawed." Perhaps the majority
have rules of grammar of which this writer is unaware, but we
will leave it to the teachers of English that the clause
"this full legal redress" refers in Art. 11, Sec. 16 to the
"speedy remedy afforded for every injury of a person,
property, or character." Grammatically, we insist that
"speedy remedy" comprehended "full legal redress."
Speaking in the vein of grammatical construction, the
majority ask us to construe the term "full legal redress" in
the second sentence of Art. 11, Sec. 16 as applying only to
injured workmen who have claims against third parties for
their injuries. The majority contend that the purpose of the
inclusion of the second sentence was only to protect injured
workmen and had no effect on the remainder of Art. 11, Sec.
16. In this sense, the majority grammatically misconstrue
the article. Under its plain language the right of "full
legal redress" is not given only to Workers' Compensation
claimants. Rather, the right of "full legal redress" is
emphatically granted to Workers' Compensation claimants too.
The framers intended to make certain that included in Art.
11, Sec. 16 was a specific provision which also extended the
speedy remedy comprehending full legal redress to Workers'
Compensation claimants who might have separate causes of
action against third parties, not their employers or fellow
employees.
Ashcraft v. The Montana Power Company (1971), 156 Mont.
368, 480 P.2d 812 was the reason for the insertion by the
framers of the second sentence in Art. 11, Sec. 16, to make
certain that Workers' Compensation claimants had the right of
full legal redress, too. Ashcraft was a laborer working for
a construction company which as an independent contractor was
performing work on the job for the general employer, Montana
Power Company. Ashcraft was injured through the alleged
negligence of the Montana Power Company. He recovered
Workers' Compensation benefits through his employer, and
sought to sue Montana Power Company as a third party
tortfeasor. This Court held that Ashcraft had no cause of
action for his injuries against the third party tortfeasor,
Montana Power Company. Ashcraft and several cases of its
progeny following, were at the forefront when Art. 11, Sec.
16 was considered by the constitutional framers in 1972. The
second sentence of Art. 11, Sec. 16 was inserted specifically
to overrule Ashcraft.
When the provisions of Art. 11, Sec. 16 came before the
Constitutional convention for eventual adoption, Delegate
Habedank, as indicated in the majority opinion, made a motion
to strike the second sentence of the section upon the grounds
that the sentence was merely legislative, and its subject was
better left to the legislature. Delegate Habedank's
amendment to delete the second sentence was defeated in the
convention, but before the amendment was submitted to a vote,
Delegate Habedank made a comment that is interesting in light
of this case:
DELEGATE HABEDANK: Yes, Mr. president [Chairman]
you have had the matter very fairly presented to
- -
you by Mr. Dahood. As I told you in the first
place, I do not particularly oppose this particular
amendment, but I have been told that we lawyers are
writing the Constitution, trying to slip matters
into this Constitution for our own personal gain.
You have had the pro of the con given to you. This
is somethinq that can't be corrected by the
legislature. - - - - - in your power - - -
You have it to be the
supreme Legislature, as the committee has requested
you to do. I leave it to you, but I do think that
when you do it, you should do it knowing what you
do and not accuse the lawyers of pulling the wool
over your eyes. (Emphasis supplied.)
verbatim h ran script, page 1758.
Even more interesting in connection with the
Constitutional Convention is that the author of the majority
opinion here, a respected member of the Constitutional
Convention, stood and opposed Delegate Habedank's motion to
delete the second sentence of Art. 11, Sec. 16. He stated:
 DELEGATE McDONOUGH: Mr. Chairman, I also support
the committee's proposal. In Eastern Montana
there's a lot of accidents in the oil field, and
practically all the work is subcontracted out or
contracted out, and we never dreamed--and Mr.
Habedank, I am sure, admits himself he never
dreamed, because he's defended these law
suits--that the Supreme Court would rule in this
manner. And I support the committee proposal
because it just--it was a very bad law and it
should be restored.
verbatim rans script, pages 1757, 1758.
There is an inconsistency between the statements of
Delegate McDonough in support of Art. 11, Sec. 16, and the
his statements as the author of the majority opinion as
expressed today. If, as he now espouses, Art. 11, Sec. 16
gives only a right of access to the courts, but not to a full
legal redress, the legislature could make the second sentence
of Art. 11, Sec. 16, meaningless by simply abolishing the
remedies available to third party plaintiffs as they have
abolished the tort remedies of the employees in this case.
Such a view was unexpressed by any delegate to the
Convention. In the light of his opinion today, the
commendable efforts of Delegate McDonough to support Art. 11,
Sec. 16 were not worth the candle. The injured workman now
has no more guaranty of a legislature allowing full legal
redress than the merest employee relying on implied
covenants.
The fundamental right to remedy was expressed to the
Constitutional Convention by the chairman of the sill of
Rights Committee, supporting Art. 11, Sec. 18 (governmental
immunity) when he said:
We submit it's an inalienable right to have remedy
when someone injures you through negligence and
through wrongdoing, regardless of whether he has
the status of a governmental servant or not.
(Emphasis added.)
 (See No11 and Kenneady v. Bozeman (1975), 166 Mont. 504, 507,
534 P. 2d 880, 882) . The Jeffersonian word "inalienable"
means incapable of being surrendered or transferred.
[Webster's New Collegiate ~ictionary (198l)l.
Now let us state exactly what Corrigan, white, and Pfost
stood for. ~orriqanestablished that when a cause of action
is grounded on statute the right of a plaintiff to a full
legal redress under that statute was fundamental. White and
Pfost established that when a statute discriminated
invidiously between injured plaintiffs, the courts under Art.
11, Sec. 16 would apply exacting scrutiny to determine the
necessity, if any, for the discrimination. Those results
were commanded by the language of Art. 11, Sec. 16.
A major premise of the majority opinion is that Art. 11,
Sec. 16 is addressed to the courts, and because the section
is not addressed to the legislature, the legislature is free
to act without restraint except for a minimal rational test.
That concept ignores the last sentence of Art. 11, Sec. 16,
which tells the courts that "right and justice shall be
administered without denial.'' The courts must consider first
the right and then justice, and neither must be denied.
A full legal remedy, state the majority, is not a
fundamental right; and so bring themselves to deny the
essence of a fundamental right. The right of a citizen to
claim justice from his state, is, we should agree, a
fundamental right; else the right of petition for redress
from grievances is meaningless. State protection of citizens
from injustice, - fortiori, is also a fundamental right; else
a
the right of petition is toothless.
A legal remedy that delivers only 25% justice
automatically also delivers 75% injustice. Assuming a
wrong-doing employer, a legal remedy that delivers to the
long-term employee only four working years of justice
delivers also the balance of a working lifetime of injustice.
For justice is not divisible. Either the result is just or
it is unjust, just as a single fact is true or else it is
untrue. There is no middle to justice, for injustice takes
up where partial justice ends. In defining justice, we do
not mess with Mr. In-Between. As surely as there are
fundamental rights, there are surely no fundamental
half-rights. The right of access to courts is only part of
the fundamental right; the right to a full legal remedy
completes the part to make a whole. The two, access to the
courts and full redress, indivisibly make one fundamental
right, and together they are the essence of justice. They
must coexist to complete the fundamental right to justice.
The least plausible argument of the majority in this
case is that the legislature has the power to limit remedies,
and that this Court may not interfere if the legislature so
acts. If this were true in all cases, the public in this
state would have no protection from free-wheeling
legislatures. Fortunately, if the Court does its job, our
state constitutional system is designed to contain
legislative action within constitutional limits. That design
requires the state courts to rein in a rampant legislature.
specially must an appellate court (in Montana the only
appellate court is this Court) be watchful to safeguard the
rights of the public in state constitutional disputes.
Our appellate jurisdiction has a two-fold
purpose: First, we assure state litigants that the decision
makers at the first level, the district courts, will make
correct decisions, not in isolation, but with the connected
support of the state legal system. The review for
correctness reinforces the dignity and acceptability of the
trial court's decisions, and controls any adverse effects of
shortcomings at the first level. The second purpose of this
appellate court is equally important. Our institutional
review of the workings of trial courts serves to announce,
clarify and harmonize the rules of decision and the
application of laws in the state legal system. Necessarily,
institutional review is both creative and political; to say
that legislatures, and not courts, make law ignores the facts
of appellate life.
The final arbiter of what the state law in Montana shall
be is this Court, under Art. 11, Sec. 16, not the
legislature. We are given that power, to be used judicially.
The Justices in the majority do not seem to realize it, but
in approving without objection or by inaction the Wrongful
Discharge From Employment Act of 1987, they are making law.
They have blessed what should be repugnant to a court--a
savage curtailment of redress for wrongs, and they excuse
their inaction by ceding overall power to the legislature.
Though the State Constitution requires courts of justice (not
the legislature) to afford a speedy remedy for every injury
of person, of property, or of character, the majority have
taken a detour from the road to remedy. They have declined
to insist on not only a speedy remedy, but on full legal
redress for wrongfully discharged employees. They have made
law by being passive, and deserve no praise. A toothless
court, when abstaining from its duty, is making law and is as
great a threat to a just government as an unrestrained
legislature.
This is not to say that this Court sits as a super
legislature, governing by its discretion the policy, wisdom,
and direction of legislative acts. When, however, the
legislature acts invidiously to discriminate between persons
similarly situated, as will be demonstrated below, Art. 11,
Sec. 16 imposes a duty upon this Court to make certain that
right and justice are not denied.
 111.
Having determined that Meech has no fundamental right to
a full legal redress here, the majority sustain the equal
protection implications of the Wrongful Discharge From
Employment Act by applying the rational test. This leads the
majority to the irrational result that it is rational to make
the state safe for unscrupulous employers.
The legislature made no findings to accompany the Act,
nor does the Act itself articulate its purpose. The
statements by the majority as to the purpose of the Act are
extrapolated from written statements of proponents submitted
to the committees considering the Act, and not the whole
legislature.
At its core, the Wrongful l is charge From Employment Act
is nothing more than a cap on recoverable damages available
to wronged employees. In that sense, the type of law we are
looking at here is no different than the types presented to
us in White and Pfost, supra.
To begin with, the at-will statute which formerly
governed employee relationships in Montana is not really
repealed in the Act. The same language as existed in S
39-2-504, MCA, is included in S 2 of the Act. At-will
employees still exist in Montana.
We should also put out of the way any argument that the
Act discriminates with respect to punitive damages to the
extent that they are allowed under the Act. The test of
punitive damages in 5(2) of the Act is the same test faced
by any plaintiff claiming punitive damages under S 27-1-221,
MCA.
The Wrongful Discharge From Employment Act cannot be
sustained as an equal protection under the rational basis
test because it discriminates adversely between persons
similarly situated and it discriminates vertically as well as
horizontally.
Equal protection permits reasonable classifications only
if those similarly situated in relevant respects are treated
similarly. An Act is excessively underinclusive if it
excludes persons who are similarly situated.
The majority opinion does not begin to state the number
of ways in which employees similarly situated are
discriminated against under the Wrongful Discharge From
Employment Act. Horizontally, the discriminations include at
least these:
1. A union worker is not affected by the Act; only
non-union workers are covered. Thus a union worker who is
discharged for "whistle blowing1' has larger rights of
recovery than a non-union worker discharged for the same
reason.
2. Workers whose discharge is the result of a violation
of the Human ~ i g h t sAct, the Equal Employment Opportunity
Act, the Pension Reform Act of 1974 (ERISA), the Pregnancy
Disability Act and any number of other state or federal acts
are not covered under the Wrongful isc charge From Employment
Act. Such employees' full rights of recovery are not taken
away under this Act (see for example, ~rinkwalterv. shipton
Supply Company, Inc. (1987 , - Mont. - 732 P.2d 1335;
,
Breese v. Steel Mountain ~nterprises,Inc. (1986), 220 Mont.
454, 716 P.2d 214; and Strong v. State (19791, 183 Mont. 410,
600 P.2d 191.
3. The Act discriminates against long term employees by
severely limiting their damages which might be large in
magnitude. See ~lanigan v. prudential Federal savings and
Loan (1986), 221 Mont. 419, 720 P.2d 257.
4. A worker on probation is entirely precluded from any
action for wrongful discharge.
 In addition, the Act is vertically discriminatory in
that it imposes upon wrongfully discharged employees the
burden of subsidizing a better business climate for
wrongdoing employers.
It is not a legitimate state purpose to protect
employers from their unscrupulous acts as against the
traditional rights of individuals to earn their livelihood.
Our state constitution includes among inalienable rights
"pursuing life's basic necessities, enjoying and defending
their lives and liberties, acquiring, possessing and
protecting property, and seeking their safety, health and
happiness in all lawful ways. In enjoying these rights, all
persons recognize corresponding responsibilities." Art. 11,
§ 3, 1972 Mont. Const.

Thus, no case can be made on a rational basis to sustain
a law the principal purpose of which is to subsidize, protect
or enhance the acts of wrongdoers.
Because of its manifest discrimination, because it
serves no legitimate state purpose, and because it cannot
survive a proper balancing test as between the rights of
employers and of individuals to pursue life's basic
necessities, the Wrongful Discharge From Employment Act of
1987 violates the Equal protection Clause of the 1972 Montana
Constitution, Art. 11, S 4.
As stated in Richardson v. ~arnegie~ibraryRestaurant,
Inc. (NM 1988), 763 P.2d 1153:
We commence our examination by repeating that the
court of appeals erred in its equal protection
analysis of the damage limitation. A legislative
classification not only must affect equally a11
persons within the class to which the legislation
applies but, to begin with, the legislature must
have a legitimate purpose for creating the class,
and a constitutionally permissible reason for
treating persons within that class differently from
those without. See McLaughlin v. ~lorida, 379 U.S.
Id., 763 P.2d at 1164.
-
IV.
Generally, when a legislative act is invalid because of
a discrimination, the act also violates other provisions of
the state constitution. That is true in this case. The
majority dismisses without proper discussion the due process
implications of the Wrongful Discharge From Employment Act.
It is usually a due process argument that an Act which
limits the rights of recovery of injured parties must provide
-
a reasonably adequate substitute, or quid pro ~ u o ,as the
majority calls it. The majority, having adopted the
irrational conclusion that the Wrongful Discharge From
Employment Act was valid, is driven to a further
irrationality in determining that the substitution of
mitigated recovery provided to wronged employees in the Act
was adequate. Not unlike Polonious in Hamlet, the majority
can find in a cloud a camel's shape, a weasel's, or very like
a whale.
In determining the adequacy of the substituted recovery
in the Act, the majority confined itself to examination of
the mitigated four years of damages as against what might be
recovered for loss of wages or fringe benefits. The majority
paid no attention in determining adequacy to the elimination
of compensatory damages, damages for emotional or mental
distress, and damages arising from the breach of the implied
covenant of good faith and fair dealing. By so examining,
the majority managed to escape the best indication of the
inadequacy of the recoverable damages in the Act demonstrated
by the cases that have come to this Court. The results in
such cases as ~laniqan,supra, Stronq - - supra, and
v. State,
Stark v. The circle K Corporation ( 1 9 8 8 ) , 7 5 1 P.2d 162, show
the injury done by the Act to plaintiffs through the
elimination of common law tort remedies. The Act simply does
not survive an adequacy test when properly admeasured against
the former law in Montana.
Other constitutional provisions probably affected by the
majority decision but not referred to by the majority opinion
and thus not pertinent to this dissent are the right to trial
by jury, and the privilege and immunity clauses of the state
constitution. Art. 11, S 26; Art. 11, S 31, 1972 Mont.
Const. Oregon looks to Art. I, S 20 of its constitutional
privileges and ~rnmunities Clause rather than to equal
protection tests to determine the validity of a statute.
There the court inquires into whether the challenged statute
affects a "privilege or immunityw--that is, "some advantage"
to which a person "would be entitled but for a choice made by
government authority." Salem v. Bruner (Ore. 1985), 702 P.2d
70, 74. In a recent case in washington, sophie v. ireb board
corporation (Wash. 1989), 771 P.2d 711, the Supreme Court of
that state found, because of the language in washington's
Tort Reform Act, a violation of the state constitutional
provision of the right to trial by jury. Arguments with
respect to similar clauses in our state constitution could be
made in this case, but were not raised in briefs nor decided
by the majority. They are therefore open to future
discussions.
v.
If Art. 11, 16 of the Montana Constitution does
anything, it imposes upon the judiciary the duty to guard the
state constitution. In its decision today, this Court
sidesteps that duty and reverses not only the cases mentioned
in the majority opinion but a long line of cases in the past
15 years that have established solid boundaries for employers
and employees, while adhering to the at-will principle
declared in our statutes. In yielding our duty to the
vagaries of the legislature, we have disadvantaged a large
portion of the Montana labor market in the guise of a better
business climate. The Wrongful Discharge From Employment Act
of 1987 is economically and socially regressive. The
majority opinion is legally regressive. Because of the
unwillingness of the majority to act properly in a
constitutional case, regressiveness is the order of the day.
I would hold the Wrongful isc charge From Employment Act
of 1987 to be invalid on the basis that under an equal
protection test it cannot meet even a rational scrutiny. The
only basis for the Act that I can find is that as between
business and the workers, the legislature discriminatingly
prefers business. That is not a constitutional basis on
which to found a statute.
-\
'

.'
i,
I concur in the dissent of Mr. Justice John C. Sheehy.
/
 EXHIBIT A

CHAPTER NO. 641
AN ACT PROVIDING A PROCEDURE AND REMEDIES FOR
WRONGFUL DISCHARGE; AUTHORIZING ARBITRATION AS AN
ALTERNATIVE; ELIMINATING COMMON-LAW REMEDIES;
REPEALING SECTIONS 39-2-504 AND 39-2-505, MCA; AND
PROVIDING AN APPLICABILITY CLAUSE AND AN EFFECTIVE
DATE.
Be in enacted by the ~egislature of the State of
Montana:
section 1. Short title. [Sections 1 through
91 may be cited as the "Wrongful isc charge From
Employment Act". [5 39-2-9011
Section 2. Purpose. [Sections 1 through 91
set forth certain rights and remedies with respect
to wrongful discharge. Except as limited in
[sections 1 through 91, employment having no
specified term may be terminated at the will of
either the employer or the employee on notice to
the other for any reason considered sufficient by
the terminating party. Except as provided in
[section 7 1 , [sections 1 through 91 provide the
exclusive remedy for a wrongful discharge from
employment. [ S 39-2-9021
Section 3. ~efinitions. In [sections 1
through 91, the following definitions apply:
(1) "Constructive discharge" means the
voluntary termination of employment by an employee
because of a situation created by an act or
omission of the employer which an objective,
reasonable person would find so intolerable that
voluntary termination is the only reasonable
alternative. Constructive discharge does not mean
voluntary termination because of an employer's
refusal to promote the employee or improve wages,
responsibilities, or other terms and conditions of
employment.
(2) isch charge" includes a constructive
discharge as defined in subsection (1) and any
other termination of employment, including
resignation, elimination of the job, layoff for
lack of work, failure to recall or rehire, and any
other cutback in the number of employees for a
legitimate business reason.
(3) "Employee" means a person who works for
another for hire. The term does not include a
person who is an independent contractor.
(4) "~ringebenefits" means the value of any
employer-paid vacation leave, sick leave, medical
insurance plan, disability insurance plan, life
insurance plan, and pension benefit plan in force
on the date of the termination.

(5) "Good cause" means reasonable,
job-related grounds for dismissal based on a
failure to satisfactorily perform job duties,
disruption of the employer's operation, or other
legitimate business reason.
(6) "Lost wages" means the gross amount of
wages that would have been reported to the internal
revenue service as gross income on Form W-2 and
includes additional compensation deferred at the
option of the employee.

(7) "Public policy" means a policy in effect
at the time of the discharge concerning the public
health, safety, or welfare established by
constitutional provision, statute, or
administrative rule. [ § 39-2-903 (1)- (7), inc. I

Section 4. Elements of wrongful discharge. A
discharge is wrongful only?£:
(1) it was in retaliation for the employee's
refusal to violate public policy or for reporting a
violation of public policy;

(2) the discharge was not for good cause and
the employee had completed the employer's
probationary period of employment; or
( 3 ) the employer violated the express
provisions of its own written personnel policy. [ §
39-2-9041
 section 5. ~emedies. (1) If an employer has
committed a wrongful discharge, the employee may be
awarded lost wages and fringe benefits for a period
not to exceed 4 years from the date of discharge,
together with interest thereon. Interim earnings,
including amounts the employee could have earned
with reasonable diligence, must be deducted from
the amount awarded for lost wages.
(2) The employee may recover punitive damages
otherwise allowed by law if it is established by
clear and convincing evidence that the employer
engaged in actual fraud or actual malice in the
discharge of the employee in violation of [ S 4 (1)I .
(3) There is no right under any legal theory
to damages for wrongful discharge under [sections 1
through 91 for pain and suffering, emotional
distress, compensatory damages, punitive damages,
or any other form of damages, except as provided
for in subsections (1) and (2). [ S 39-2-9051
Section 6. Limitation of actions. (1) An
action under [sections 1 throuqh 9 1 must be filed
within 1 year after the date of-discharge.

(2) If an employer maintains written internal
procedures, other than those specified in [section 71 , under
which an employee may appeal a discharge within the
organization structure of the employer, the employee shall
first exhaust those procedures prior to filing an action
under [sections 1 through 91 . The employee's failure to
initiate or exhaust available internal procedures is a
defense to an action brought under [sections 1 through 9 . !
If the employer's internal procedures are not completed
within 90 days from the date the employee initiates the
internal procedures, the employee may file an action under
[sections 1 through 91 for purposes of this subsection the
employer's internal procedures are considered exhausted. The
limitation period in subsection ( 1 ) is tolled until the
procedures are exhausted. In no case may the provisions of
the employer's internal procedures extend the limitation
period in subsection (1) more than 120 days.

(3) If the employer maintains written internal
procedures under which an employee may appeal a discharge
within the organizational structure of the employer, the
employer shall within 7 days of the date of the discharge
notify the discharged employee of the existence of such
procedures and shall supply the discharged employee with a
copy of them. If the employer fails to comply with this
subsection, the discharged employee need not comply with
subsection (2) [ S 39-2-9111

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

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

(2) of an employee covered by a written collective
bargaining agreement or a written contract of employment for
a specific term. [ § 39-2-9121

section 8. preemption - common-law remedies. Except
of
as provided in [sections 1 through 91, no claim for discharge
may arise from tort or express or implied contract [ B
39-2-9131
 Section 9. Arbitration. (1) Under a written agreement
of the parties, a dispute that otherwise could be adjudicated
under [sections 1 through 91 may be resolved by final and
binding arbitration as provided in this section.

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

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

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

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

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

(4) A party who makes a valid offer to arbitrate that
is not accepted by the other party and who prevails in an
action under [sections 1 through 91 is entitled as an element
of costs to reasonable attorney fees incurred subsequent to
the date of the offer.

(5) A discharged employee who makes a valid offer to
arbitrate that is accepted by the employer and who prevails
in such arbitration is entitled to have the arbitrator's fee
and all costs of arbitration paid by the employer.

(6) If a valid offer to arbitrate is made and accepted,
arbitration is the exclusive remedy for the wrongful
discharge dispute and there is no right to bring or continue
a lawsuit under [sections 1 through 81. The arbitrator's
award is final and binding, subject to review of the
arbitrator's decision under the provisions of the Uniform
Arbitration Act. [ S 39-2-9141

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

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

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

Section 13. Effective date. This act is effective July
1, 1987.

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

While I agree with much that is said by the majority in
this opinion, the totality of this opinion in reversing so
many cases this Court has previously decided, necessitates my
filing this dissent.
I cannot concur with all that has been said in the
dissent of Mr. Justice John C. Sheehy, yet I find I must
agree with Justice Sheehy regarding Corrigan v. Janey (Mont.
1981), 626 P.2d 838, 38 St.Rep. 545. I feel that it is
totally unnecessary to reverse Corrigan which established
that when a cause of action is grounded on statute the
plaintiff has a fundamental right to full- legal redress under
that statute.