No. 90-552
IN THE SUPREME COURT OF THE STATE OF MONTANA
RUSSELL DEWEY ALLMARAS,
Plaintiff and Appellant,
YELLOWSTONE BASIN PROPERTIES, a Montana corp., and PATTEN
CORPORATION, a foreign corp.,
Defendants and Respondents,
RICHARD RIOS,
Plaintiff and Appellant, JUN - 4 1991
-vs-
YELLOWSTONE BASIN PROPERTIES, a Montana
CORPORATION, a foreign corp.,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Walter H. Madden, Livingston, Montana; Karl Knuchel,
Livingston, Montana.
For Respondent:
Todd R. Hillier; Josephson & Fredricks, Big Timber,
Montana ; John F. Sullivan; Hughes, Kellner,
Sullivan & Alke, Helena, Montana; Gene I. Brown;
Landoe, Brown Law Firm, Bozeman, Montana.
Submitted on briefs : April 11, 1991
Decided: June 4, 1991
Filed:
Justice Fred J. Weber delivered the opinion of the Court.
Plaintiffs, Russell Dewey Allmaras and Richard Rios, initiated
this suit in the District Court for the Eighteenth Judicial
District, Gallatin County, alleging statutory wrongful discharge
(Count I), common law discharge (Count 11), and violation of the
implied covenant of good faith and fair dealing (Count 111). The
District Court granted the defendantst motion for partial summary
judgment on Counts I1 and 111. The consolidated cases were then
tried to a jury on Count I only. The jury found that plaintiffs
had not been wrongfully discharged. Plaintiffs appeal, presenting
five constitutional challenges to the Wrongful Discharge Act found
in Title 3 9 , Chapter 2, Part 9, MCA. We find no merit in any of
the constitutional claims, and affirm the District Court's grant
of partial summary judgment on Countts I1 and 111.
The issues are:
1 Does the Wrongful Discharge Act violate the right of trial
.
by jury under the Montana Constitution?
2. Does the Wrongful Discharge Act violate the privileges and
immunities clause and the equal protection clause of the Montana
Constitution?
3. Does the Wrongful Discharge Act impair the obligation of
contracts in violation of the Montana Constitution?
4. Does the Wrongful Discharge Act violate substantive due
process in violation of the Montana Constitution?
Yellowston Basin Properties, Inc. (Yellowstone Basin) is a
Montana corporation and wholly owned subsidiary of Patten
Corporation. Yellowstone Basin hired plaintiffs as real estate
sales representatives for the company. Yellow Basin terminated
both plaintiffst employment with the company and this suit
followed.
I
Does the Wrongful Discharge Act violate the right of trial by
jury under the Montana Constitution?
Plaintiffs argue that because the Wrongful Discharge Act
places a cap on the amount of damages recoverable for wrongful
discharge, the right to have a jury determine damages has been
infringed in violation of Article 11, 5 26, of the Declaration of
Rights of the Montana Constitution. It is a well-established
principle that a party does not have standing to challenge the
constitutionality of a statute unless he has been adversely
affected by the challenged statute. Jones & Herriott v. Judge
(1978), 176 Mont. 251, 253, 577 P.2d 846, 847-48; Chovanak v.
Matthews (1948), 120 Mont. 520, 526, 188 P.2d 582, 585. This Court
declines consideration of constitutional issues which are rendered
moot by jury verdicts or court judgments. See Stelling v.
Rivercrest Ranches, Inc. (1986), 224 Mont. 313, 316, 730 P.2d 388,
390-91.
The jury determined that Allmaras and Rios were not wrongfully
discharged. Based on this jury verdict, Allmaras and Rios are not
entitled to damages under the Wrongful Discharge Act, and therefore
cannot claim to be injured by the cap on damages contained in the
Act. Stellinq, 224 Mont. at 317, 730 P.2d at 391. We hold that
Allmaras and Rios do not have standing to challenge the
3
constitutionality of the cap on damages under the theory that the
Wrongful Discharge Act violates the right of trial by jury under
the Montana Constitution.
Does the Wrongful Discharge Act violate the privileges and
immunities clause and the equal protection clause of the Montana
Constitution?
Allmaras and Rios argue that the Wrongful Discharge Act
creates classifications that discriminate in violation of the
privileges and immunities clause and the equal protection clause
of the Montana Constitution. Article 11, 5 31, reads:
No ex post facto law nor any law impairing the obligation
of contracts, or making any irrevocable grant of special
privileges, franchises, or immunities, shall be passed
by the legislature.
Article 11, 5 4, reads in part:
... No person shall be denied the equal protection of
the laws .
. .
Allmaras and Rios contend that the Wrongful Discharge Act creates
a discriminatory classification by excluding from the scope of the
Act wrongful discharge claims brought by employees covered by
collective bargaining agreements or other written employment
contracts and claims covered by other specific statutory remedies
such as the Montana Human Rights Act. In sum, Allmaras and Rios
argue that because they are in the class that is covered by the
Act, they are denied the right to bring the common law tort actions
found in Counts I1 and I11 of their complaint. Count I1 claimed
common law wrongful discharge and Count I11 claimed breach of the
implied covenant of good faith and fair dealing.
The Wrongful Discharge Act does not change the common law in
recognizing that a general statutory remedy for wrongful discharge
should not apply to those classes of cases in which the employees
enjoy other specific contractual or statutory remedies. Under
common law, tort claims for wrongful discharge and breach of the
implied covenant of good faith and fair dealing were available only
to at-will employees. These tort remedies were developed
specifically to provide redress for employees who had no legal
protection against wrongful discharge. See Dare v. Montana
Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015;
Brinkman v. State (1986), 224 Mont. 238, 729 P.2d 1301. Persons
employed under term contracts or collective bargaining agreements
were not allowed to sue in tort, but rather were required to seek
remedies under their contracts or collective bargaining agreements.
Brinkman, 224 Mont. 238, 729 P.2d 1301; Fellows v. Sears, Roebuck
and Co. (1990), 795 P.2d 484; Nordlund v. School Dist. No. 14
(1987), 227 Mont. 402, 738 P.2d 1299. Likewise, claims arising
under discrimination statutes such as the Human Rights Act and the
Governmental Code of Fair Practices may not form the basis of a
tort claim. 5 49-2-509(7) and 49-3-312(7), MCA; Harrison v.
Chance, (1990) 797 P.2d 200.
Plaintiffs' argument that the codification of the common law
tort of wrongful discharge denies them the right to claim the
common law tort of wrongful discharge is without merit for the same
reasons that plaintiffs did not have standing to challenge the
constitutionality of the limitations on damages. As already stated
under Issue I, a party does not have standing to challenge the
constitutionality of a statute unless he has been adversely
affected by the challenged statute. Jones & Herriott, 176 Mont.
at 253, 577 P.2d at 847-48. Since the classifications established
in the Act are the same as those under common law, plaintiffs
cannot claim that they have been adversely affected by the loss of
the common law tort claim. We hold that Allmaras and Rios have no
standing to challenge the constitutionality of the Wrongful
Discharge Act's elimination of the common law tort of wrongful
discharge under the theory that the Act creates discriminatory
classifications in violation of the privileges and immunities
clause and the equal protection clause of the Montana Constitution.
The Wrongful Discharge Act does however prevent plaintiffs1
claims of breach of the implied covenant of good faith and fair
dealing. 5 39-2-912, MCA. In 1982, this Court set forth the
employer's duty of good faith and fair dealing. Gates v. Life of
Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063. Plaintiffs
apparently are asserting that it is a violation of their
constitutional rights for the legislature to eliminate this common
law cause of action. "No one has a vested interest in any rule of
common lawt' and as a general rule, "the legislature, under its
plenary power to act for the general welfare, may alter common law
causes of action. 'I Meech v. Hillhaven West, Inc. (1989), 238 Mont.
21, 31, 776 P.2d 488, 494. For policy reasons, the Legislature has
debated and passed statutes in a number of legal areas that take
away causes of action or constrict liability. Meech, 238 Mont. at
33, 776 P.2d at 495. The general rule that no one has a vested
interest in a rule of common law refutes the plaintiffs1 argument
6
that the Act unconstitutionally deprives them of the fundamental
right to a claim of breach of the implied covenant of good faith
and fair dealing. Meech, 238 Mont. at 34-35, 776 P.2d at 496.
We hold that there is no merit in plaintiffs' claim that the
Wrongful Discharge Act's elimination of breach of the common law
tort claim of the implied covenant of good faith and fair dealing
violates the privileges and immunities clause and the equal
protection clause of the Montana Constitution
I11
Does the Wrongful Discharge Act impair the obligation of
contracts in violation of the Montana Constitution?
The Wrongful Discharge Act became effective on July 1, 1987.
Plaintiff, Allmaras, claims that he went to work on or about July
1, 1987, and that the parties of necessity would have had to come
to an agreement on his contract prior to that date. Therefore
imposing the limitations found in the Act impairs the obligation
of his contract in violation of Article 11, 5 31, which reads:
No ex post facto law nor any law impairing the obligation
of contracts, or making any irrevocable grant of special
privileges, franchises, or immunities, shall be passed
by the legislature.
Allmaras presented no evidence that the parties entered into an
agreement prior to July 1, 1987. The only evidence before the
trial court on this point was the affidavit of the person who hired
Allmaras as a sales representative for Yellowstone Basin. The
company's records show that Allmaras began his employment on or
about July 20, 1987. We hold that Allmaras failed to present any
evidence to support his contention that the Wrongful Discharge Act
impaired the obligations under his contract in violation of the
Montana Constitution.
IV
Does the Wrongful Discharge Act violate substantive due
process in violation of the Montana Constitution?
Plaintiffs cite no legal authority, nor do plaintiffs explain
how the Wrongful Discharge Act violates substantive due process
beyond a reiteration that it is discriminatory, which has already
been addressed under Issue 11. Rule 23 (a)(4), M.R.App. P. requires
the appellant to file a brief containing "the contentions of the
appellant with respect to the issues presented, and the reasons
therefor, with citations to the authorities . . . relied on."
Plaintiffs1 due process argument fails to comply with this
requirement and this Court will not address this issue.
Affirmed.
//
We Concur:
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