Noll v. City of Bozeman

No. 12883

I N THE SUPRW COURT O THE STATE OF M N A A
F OTN

1975

V I R G I N I A NOLL,
P l a i n t i f f and Appellant,
-vs -
CITY O BOZEMAN,
F
Defendants and Respondents,
and
IDA K N A Y ,
EED
P l a i n t i f f and A p p e l l a n t ,
-vs -
THE CITYOF BOZEMAM,
Defendants and Respondents.

Appeal from: D i s t r i c t Court o f t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
Honorable W. W. L e s s l e y , Judge p r e s i d i n g .

Counsel o f Record:

For A p p e l l a n t s :

Douglas D. Das i n g e r argued, K a l i s p e l l , Montana

For Respondents:

Anderson, Symmes , Forbes, P e e t e and Brown, B i l l i n g s ,
Montana
Richard F. Cebull argued, B i l l i n g s , Montana
Brown and G i l b e r t , Bozeman, Montana

F o r Amicus Curiae

Paore, McKenzie and Roth, B u t t e , Montana
Urban L. Roth argued, B u t t e , Montana
Knight, Dahood , Mackay and McLean, Anaconda, Montana
Wade J. Dahood argued, Anaconda, Montana

Submitted: A p r i l 11, 1975

Decided : k f . 2 ! 1977'
~,
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

In 1972,the Constitutional Convention and the people
of the State of Montana abolished the concept of sovereign im-
munity by constitutional declaration. Article 11, Section 18
of the 1972 Montana Constitution provides:
"The state, counties, cities, towns, and all
other governmental entities shall have no
immunity from suit for injury to a person or
property. This provision shall apply only to
causes of action arising after July 1, 1973."
In 1973, the Legislature enacted the Montana Comprehensive
State Insurance Plan and Tort Claims Act, Ch. 380, Laws of 1973,
now codified as sections 82-4301 through 82-4327, R.C.M. 1947.
Among its provisions are these claim requirements:
Section 82-4311:
"All claims against the state arising under the
provisions of this act shall be presented to
and filed with the secretary of state within one
hundred twenty (120) days from the date of the
occurrence from which the claim arose or when
the injury should reasonably have been discovered,
whichever is later."
Section 82-4314:
"No claim or action shall be allowed against a
governmental entity unless the claim has been
presented and filed within the time limits pre-
scribed by this act."
This appeal challenges the constitutionality of the quoted
statutory claim requirements. The suit arose from personal in-
juries allegedly caused by operation of government equipment by
government employees in the City of Bozeman. The particulars of
the incident are detailed in State ex rel. The City of Bozeman v.
32 St.Rep. 205,
District Court, Mont ., 531 P.2d 1343,/and will not be
repeated here. This appeal is brought from the district court's
dismissal of pl.aintiffsl complaints for failure to comply with
the quoted claim requirements.
On appeal, plaintiffs concede they did not comply with
the statutory requirement that their claims be presented to the
secretary of state within 120 days. Section 82-4311, R.C.M.
1947. However, they argue the statute is unconstitutional, vio-
lating ~rticle11, Section 18, 1972 Montana Constitution, hereto-
fore quoted, and the equal protection guarantees of the Montana
and United States Constitutions.

The parties agree that, prior to the adoption of the new
constitution, the legislature clearly had the power to limit or
expand governmental immunity at its discretion. Mills v. Stewart,
76 Mont. 429, 247 P. 332, supports that proposition. Under the
1889 Montana Constitution, this Court upheld the validity of
statutes requiring notice of injury within sixty days of an acci-
dent. Floyd v. City of Butte, 147 Mont. 305, 412 P.2d 823; Section
11-1305, R.C.M. 1947.
Plaintiffs argue that Article 11, Section 18, 1972 Mon-
tana Constitution, has limited that power of the legislature by
creating a constitutional mandate which supersedes legislative
discretion. It is urged that the constitutional change created
a right to sue the government which cannot be limited by the claim
requirements of section 82-4311, R.C.M. 1947.
In determining the constitutionality of the claim require-
ments, we are governed by a number of well established rules.
Every doubt must be resolved in favor of the constitutional val-
idity of the legislative acts; State Highway Commission v. Chapman,
152 Mont. 79, 446 P.2d 709. No statute will be held unconstitution-
al unless its violation of the fundamental law is clear and palpable;
Harrison v. City of Missoula, 146 Mont. 420, 407 P.2d 703. with
reference to the subjects upon which the Constitution speaks, its
declarations are binding upon the legislature; State ex rel. Pierce
v. Gowdy, 62 Mont. 119, 203 P. 1115. Constitutional provisions
are conclusive upon the legislature and prevent the enactment of
any law which extinguishes or limits the powers conferred by
the Constitution; State ex rel. Bonner v, ~ i x o n , Mont. 58,
59
195 P. 841; State ex. rel. DuFresne v. ~eslie,100 Mont. 449,
50 P.2d 959.
In appellate arguments and briefs, the parties exten-
sively debated whether the 1972 Constitution created a right to
sue or merely denied the government the defense of sovereign
immunity. The inescapable fact is that the government no longer
enjoys protection from suit under the 1972 constitutional mandate.
The challenged statutes purport to provide immunity if a claim
is not presented within 120 days of the occurrence. Whether the
statutes are viewed as a limitation on a constitutional right or
a violation of a constitutional prohibition, they cannot be sus-
tained. The terminology employed is unimportant in light of the
unconstitutional result.
A reading of the record of the 1972 Constitutional Con-
vention clearly indicates the framers intended to provide redress
for all persons, whether victims of governmental or private torts.
In referring to the concept of sovereign immunity, the Eill of
Rights Committee reported to the Convention:
"The committee finds this reasoning repugnant
to the fundamental premise of the American
justice: a11 parties should receive fair and just
redress whether the injuring party is a private
citizen or a governmental agency."
The chairman of that committee, speaking from the Convention
floor, told the delegates:

"We submit it's an inalienable right to have
remedy when someone injures you through negligence
and through wrong-doing, regardless of whether he
has the status of a governmental servant or not."
The Convention had before it a similar provision which
had been proposed by the North Dakota Constitutional Convention
of 1972. That provision granted the North Dakota Legislative
Assembly the power to "provide for reasonable limitations"
upon the bringing of suits against the government. (Article I,
Section 22, of the proposed 1972 North Dakota Constitution)-
Although Montana's Convention discussed the possible addition
of that qualifying phrase, it was never adopted.
The record, as cited, clearly indicates the framers
wished to preclude limitations upon the waiver of sovereign
immunity. The claim requirements of the Tort Claims Act, if
permitted to stand, would contravene the clear purpose of the
constitutional provision. Sections 82-4311 and 82-4314, R.C.M.
1947, insofar as they purport to impose a 120 day claim require-
ment, are violative of Article 11, Section 18, 1972 Montana
Constitution.
Defendant's argument that statutes of limitation are
within the power of the legislature to enact is conceded. How-
ever, the argument that the claim requirements are nothing more
than statutes of limitation is not persuasive. The Tort Claims
Act provides what clearly is a statute of limitations in section
82-4317, R.C.M. 1947. Section 82-4311, R.C.M. 1947, creates a
condition precedent to the government's waiver of immunity. Such
restrictions on the abolition of sovereign immunity destroy the
constitutional grant itself and are clearly unconstitutional.
The statutes challenged here do not conform to the tradition-
al concept of statutes of limitation. A true statute of limi-
tation establishes a time period within which suit must be
brought. 51 Am Jur 2d, Limitation of Actions, 813. Its object
is to suppress stale and fraudulent claims after the facts con-
cerning them have become obscure from lapse of time, defective
memory, or death or removal of witnesses. Eby v. City of Lewis-
town, 55 Mont. 113, 173 P. 1163. Section 82-4317, R.C.M. 1947,
fulfills these criteria, section 82-4311, R.C.M. 1947, does not.
 I n f i n d i n g t h a t the c h a l l e n g e d s t a t u t e s v i o l a t e A r t i c l e

LI, S e c k i o n 1 8 , 1972 Montana C o n s t i t u t i o n , w e need n o t r e a c h

t h e q u e s t i o n of d e n i a l o f e q u a l p r o t e c t i o n . Accordingly, w e

e x p r e s s no o p i n i o n a s t o w h e t h e r o r n o t t h e d i s c r i m i n a t i o n be-

tween v i c t i m s o f g o v e r n m e n t a l and p r i v a t e t o r t f e a s o r s v i o l a t e s

equal protection guarantees. N e i t h e r do w e r e a c h a d e t e r m i n -

a t i o n o f t h e i m p a c t o f t h e s u b s e q u e n t amendment t o A r t i c l e 11,

S e c t i o n 1 8 , which i s e f f e c t i v e on J u l y 1, 1975. T h a t amendment

would p e r m i t t h e l e g i s l a t u r e by a t w o - t h i r d s v o t e t o impose

limitations.
The d i s t r i c t c o u r t ' s d i s m i s s a l o f p l a i n t i f f s ' a c t i o n s i s

1-eversed. They a r e remanded t o t h e d i s t r i c t c o u r t f o r f u r t h e r

proceedings not i n c o n s i s t e n t with t h i s opinion.

Justice

W e concur:
i

Chief J u s t i c e