RUSSELL E. MEECH, PLAINTIFF, v. HILLHAVEN WEST, INC., AND R. RON SEMINGSON, DEFENDANTS.
No. 88-410.
SUPREME COURT OF MONTANA
June 29, 1989
Submitted April 11, 1989.
238 Mont. 21 | 776 P.2d 488
James, Gray & McCafferty, Robert F. James, Great Falls, Jackson, Lewis, Schnitzler and Krupman, Joel P. Kelly argued, and Elizabeth Platte, Johnson on the brief, Los Angeles, Cal., for respondent.
Church, Harris, Johnson & Williams; Cresap S. McCracken, Great Falls, Patrick W. Shea, Paul, Hastings, Janofsky & Walker, Washington, D.C., for amicus curiae.
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,
(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
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
The Act provides the exclusive remedy and procedure for ac
“Preemption of common-law remedies: Except as provided in this part, no claim for discharge may arise from tort or express or implied contract.”
The Act broadly defines “discharge” to include constructive discharge.
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
Meech in essence argues that the Act denies his fundamental right to full legal redress under
I.
THE ACT DOES NOT VIOLATE THE FUNDAMENTAL RIGHT OF FULL LEGAL REDRESS, BECAUSE NO SUCH “FUNDAMENTAL RIGHT” IS CREATED BY ARTICLE II, SECTION 16.
Summarized, this section covers the following points:
A. The conclusion that
B. The basic rule that the legislature may alter the common
C. It also follows from the words of the original guarantee, and the meaning intended for the 1972 amendment to the original guarantee, that
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 § 3.05 (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; . . .” C.J. Antieau, Constitutional Construction § 3.05 (1982) (quoting Miller, Lectures on Constitutional Law 82 (1891)).
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
“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
Legal history demonstrates that Shea and Stewart reached the correct conclusion.
“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
“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.”
Schuman, 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.’ . . . [I]t 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 40], although so frequently misunderstood and exaggerated, is still of considerable importance . . . [I]t 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 (1979), 286 Or. 99, 593 P.2d 777, 789 (citing Davidson v. Rogers (1978) (Linde, J. concurring) 281 Or. 219, 574 P.2d 624); Goldberg v. Musim (1967), 162 Colo. 461, 427 P.2d 698; Shoemaker v. Mountain States Telephone and Telegraph Co. (1976), 38 Colo.App. 321, 559 P.2d 721; Twin Falls Clinic & Hospital Bldg. Corp. v. Hamill (1982), 103 Idaho 19, 644 P.2d 341; Harrison v. Schrader (Tenn. 1978), 569 S.W.2d 822. The concurring opinion in Davidson by Justice Linde set out the rationale for a limited interpretation of the guarantees in remedy clauses as follows:
“The guarantee in article I, § 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 of the stated kinds of interest, a guarantee that dates by way of the origi
nal state constitutions of 1776 back to King John‘s promise in Magna Carta 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
“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 government. It means no more nor less than that, under the provisions of the Constitution and laws constituting them, the courts must be accessible to all persons alike, without discrimination, at the time or times and the place or places for their sitting, and afford a speedy remedy for every wrong recognized by law as being 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
“[T]he 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 (1905), 32 Mont. 433, 438-39, 80 P. 1093, 1094. The general rule is also that no one has a vested interest in any rule of common law. Therefore, as a general proposition, the legislature, under its plenary power to act for the general welfare, may alter common-law causes of action. The legislative action may not, however, infringe on constitutional rights. We have already pointed out that historically,
A tort may be defined as:
“[A] civil wrong, other than breach of contract, for which the court will provide a remedy in the form of an action for damages. This, of course, says nothing more than that a tort is one kind of legal wrong, for which the law will give a particular redress . . .
“When it becomes clear that the plaintiff‘s interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy.
“At the opposite extreme is the bold attempt to reduce the entire law of torts to a single broad principle, that any harm done to another is a wrong, and calls for redress, unless ‘justification’ for it can be shown. . . [T]he rule does not tell us what the law will recognize as ‘harm’ to another, or as ‘justification’ for it. There are many interferences with the plaintiff‘s interests, including many instances of negligently causing mere mental suffering without physical consequences or depriving the plaintiff of the benefit of a contract, for which the law will give no remedy, although the defendant has been clearly at fault. . . It is legal justification 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 § 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 § 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. O.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,
“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.”
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
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 (
In actions governed by the common law, this Court has also established limitations and expansions of liability. For example, in Miller v. Fallon County (1986), 222 Mont. 214, 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
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), [231 Mont. 474,] 753 P.2d 883, 45 St.Rep. 772. Another case held that the guarantee under
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
“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, 79 P. at 503. As Shea demonstrates, if
C. The 1972 Amendment to Article III, § 6, Did Non Recognize or Create a Fundamental Right to Full Legal Redress.
In 1972,
“Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen‘s Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay.”
In Reeves, the amended version of
“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
1. The Wording Itself.
White and Pfost, without discussing governing precedent, reached the opposite conclusion construing
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
“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. 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.”
There are flaws in this reasoning. As pointed out by Justice Weber‘s 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 § 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 Shea‘s 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 lawmakers’ power in restricting third party actions in workers’ 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 § 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:
“‘[T]he 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 (1962), 173 Ohio St. 203, 181 N.E.2d 31, 36 (quoting Norwood v. McDonald (1943), 142 Ohio St. 299, 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 ” [t]he means by which a right is enforced or the violation of a right is prevented, redressed, or compensated.” 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
2. The “Intent of the Framers.”
Basic rules of construction favor deriving the meaning of
White‘s and Pfost‘s 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 (Turnage, 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
“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, [156 Mont. 368, 480 P.2d 812] 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, and this one only, that the committee 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 to make sure that it does nothing more, than place the injured
working man back in the status that he enjoyed prior to 1971, a very basic constitutional right which he enjoyed for 80 years in the State of Montana . . . 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 the law to what it was prior to this decision a year ago, you are compelled, sometimes, in fashioning 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
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.”
In summary, the history of our remedy guarantee, the rule that the legislature may alter the common law, and the wording of
D. Deriving A New Fundamental Right From Article II, § 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
“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
“[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 as a limitation upon the legislative branch of the government where the legislation involved deals with rightful subjects of legislation.”
16A Am. Jur. 2d Constitutional Law § 616, at 564 (2d ed. 1979) (Emphasis added.); and see Salt Lake City v. Utah Light & Traction Co. (1918), 52 Utah 210, 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
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
“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 III, § 1 of the Montana Constitution .”
Pfost, 713 P.2d at 514 (Turnage, C.J., dissenting).
E. Meech‘s Arguments Are Inapposite.
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 Citizens’ Rights v. Waltermire (Mont. 1987), [227 Mont. 85,] 738 P.2d 1255, 44 St.Rep. 913, this Court declared null and void the effect of a voter initiative passed in 1986 amending
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
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
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,
In conclusion, we answer, “No” to the first question submitted by the United States District Court.
II.
THE ACT SURVIVES EQUAL PROTECTION SCRUTINY BE
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
White and Pfost interpreted
“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
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
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 rule 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 that ‘otherwise settled expectations’ may be upset thereby.”
Duke Power, 438 U.S. at 88, n. 32, 98 S.Ct. at 2638, n. 32. The California Supreme Court also emphasized that where the legislature
“[O]ur 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 (1985), 38 Cal.3d 137, 211 Cal.Rptr. 368, 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 omitted] 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 omitted] Applying these tests,
§ 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), [234 Mont. 109,] 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 enact
ment, 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. Hammond 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).”
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 § 239, at 326 (2d ed. 1965). See also White, 661 P.2d at 1276 (tort claimants have no constitutional right to pu
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), [224 Mont. 318,] 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), [230 Mont. 468,] 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, 98 S.Ct. at 2640. The same sort of analysis applies to the Act‘s limitations on damages for pain and suffering and emotional
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.,
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.
“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 § 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 it could have been anticipated or not.”
The differences in calculating personal injury damages and con
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
“The District Court held that the Price-Anderson Act contravened the Due Process Clause because ‘[t]he amount of recovery is not rationally related to the potential losses‘; because ‘[t]he Act tends to encourage irresponsibility in matters of safety and environmental protection . . .‘; and finally because ‘[t]here is no quid pro quo’ for the liability limitations. 431 F. Supp. at 222-223.”
Duke Power, 438 U.S. at 82, 98 S.Ct. at 2635. The Court in Duke Power resolved the argument for requiring a quid pro quo as follows:
“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, 438 U.S. at 88, 98 S.Ct. at 2638.
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
“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, 772 P.2d at 292 (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.”
In addition to the amount awarded for lost wages, pensions, insurance benefits, and vacation time may be considered as fringe benefits under the statute.
To summarize, greater certainty in the law may alleviate problems experienced by both employers and employees. As explained by one commentator:
“[T]he 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,
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 pro quo for the old causes of actions, the Act provides a reasonable substitute. Thus, we answer “No” to both questions posed by the United States District Court.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON and WEBER concur.
MR. JUSTICE 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
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 [
Under Section 4 of the Act [
“(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 Keneally 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.”
Id., 186 Mont. at 6, 606 P.2d at 129.
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), 157 Mont. 301, 485 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., (Mont. 1989), [236 Mont. 152,] 772 P.2d 288, 46 St.Rep. 257, and Hobbs v. Pacific Hide and Fur (Mont. 1989), [236 Mont. 503,] 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 . . .”
Id., 68 P.2d at 1020, 212 Mont. at 282.
Violation of the employer‘s handbook procedures for termination which gave rise to a wrongful discharge action was firmly established in Gates v. Life of Montana Insurance 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), [230 Mont. 468], 751 P.2d 162; and Kerr v. Gibson‘s Products Company of Bozeman (Mont. 1987), [226 Mont. 69], 733 P.2d 1292 (Turnage, J.); Flanigan v. Prudential Savings and Loan Association (1986), 221 Mont. 419, 720 P.2d 257; Krenshaw v. Bozeman Deaconess Hospital (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 no significant amount of damages could be recovered by a wrongfully discharged employee even under those elements. A wronged employee‘s remedies are nearly emasculated under the Act.
Section 5 of the Act [
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 [
Restatement (Second) of Contracts, § 205, provides:
“Duty of good faith and fair dealing. 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 [
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, § 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)] 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 Discharge 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.
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. Having 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 should 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.)
It is evident that the Wrongful Discharge 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.”
— William Shakespeare, King John (Magna Carta‘s John) Act III, Scene i.
Four centuries ago William Shakespeare 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
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. This Court held (Harrison, 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
“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.)
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
§ 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.”
Thus Corrigan held that
In White v. State, supra, Karla White sued the State of 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 escapee. Karla was brutally attacked by this individual about 5 years after he had escaped from Warm Springs.
The legislature meanwhile had passed
“Article II, 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, [192 Mont. 99,] 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 compensable components of injury including the right to be compensated for physical pain and mental anguish and the loss of en
joyment of living. Therefore, strict scrutiny attaches.” (Emphasis supplied.)
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
Before adverting to Pfost v. State, supra, we set out for the convenience of the reader the full text of
“Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress 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 v. State involved a plaintiff who had been injured 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.
“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 Dictionary (1981). The constitutional framers thus construed a ‘speedy remedy’ as comprehending ‘full legal redress.’ A state constitutional right to full legal redress was thereby created. Any state statute that restricts, limits, or modifies full legal redress for injury to person, property, or character therefore affects a fundamental right and the State must show a compelling state interest if it is to sustain the constitutional validity of the statute.”
Pfost, 13 P.2d at 503.
The majority object to our grammatical interpretation in Pfost of
Speaking in the vein of grammatical construction, the majority ask us to construe the term “full legal redress” in the second sentence of
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
When the provisions of
“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 something that can‘t be corrected by the legislature. You have it in your power 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 Transcript, page 1758.
Even more interesting in connection with the Constitutional Con
“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 Transcript, pages 1757, 1758.
There is an inconsistency between the statements of Delegate McDonough in support of
The fundamental right to remedy was expressed to the Constitutional Convention by the chairman of the Bill of Rights Committee, supporting
“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 Noll 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 Dictionary (1981)].
Now let us state exactly what Corrigan, White, and Pfost stood for. Corrigan established 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 stat
A major premise of the majority opinion is that
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, a fortiori, is also a fundamental right; else 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. Especially must an appellate court (in Montana
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
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,
III.
Having determined that Meech has no fundamental right to a full legal redress here, the majority sustain the equal protection implica
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 Discharge 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
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
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:
- A union worker is not affected by the Act; only non-union workers are covered. Thus a union worker who is discharged for “whistle blowing” has larger rights of recovery than a non-union worker discharged for the same reason.
- Workers whose discharge is the result of a violation of the Human Rights Act, 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 Discharge From Employment Act. Such employees’ full rights of recovery are not taken away under this Act (see for example, Drinkwalter v. Shipton Supply Company, Inc. (Mont. 1987), [225 Mont. 380], 732 P.2d 1335; Breese v. Steel Mountain Enterprises, Inc. (1986), 220 Mont. 454, 716 P.2d 214; and Strong v. State (1979), 183 Mont. 410, 600 P.2d 191). - The Act discriminates against long term employees by severely limiting their damages which might be large in magnitude. See Flanigan v. Prudential Federal Savings and Loan (1986), 221 Mont. 419, 720 P.2d 257.
- 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.”
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
As stated in Richardson v. Carnegie Library Restaurant, Inc. (1988), 107 N.M. 688, 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 all 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. Florida, 379 U.S. 184, 190, 85 S.Ct. 283, 287, 13 L.Ed.2d 222 (1964)” “...” 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 quo, 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 Flanigan, supra, Strong v. State, supra, and Stark v. The Circle K Corporation (1988), [230 Mont. 468,] 751 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.
V.
If
I would hold the Wrongful Discharge 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.
MR. JUSTICE HUNT concurs in the dissent of MR. JUSTICE SHEEHY.
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 Legislature of the State of Montana:
Section 1. Short title. [ §§ 1 through 9] may be cited as the “Wrongful Discharge From Employment Act“. [
Section 2. Purpose. [ §§ 1 through 9] set forth certain rights and remedies with respect to wrongful discharge. Except as limited in [ §§ 1 through 9], 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 [ § 7], [ §§ 1 through 9] provide the exclusive remedy for a wrongful discharge from employment. [
Section 3. Definitions. In [ §§ 1 through 9], 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) “Discharge” 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) “Fringe benefits” means the value of any employer-paid vacation leave, sick leave, medical insurance plan, disability insurance
(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. [
Section 4. Elements of wrongful discharge. A discharge is wrongful only if:
(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. [
Section 5. 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 [ § 4(1)].
(3) There is no right under any legal theory to damages for wrongful discharge under [ §§ 1 through 9] 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 6. Limitation of actions. (1) An action under [ §§ 1 through 9] must be filed within 1 year after the date of discharge.
(2) If an employer maintains written internal procedures, other than those specified in [ § 7], under which an employee may appeal a discharge within the organization structure of the employer, the
(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) [
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. [
Section 8. Preemption of common-law remedies. Except as provided in [ §§ 1 through 9], no claim for discharge may arise from tort or express or implied contract [
Section 9. Arbitration. (1) Under a written agreement of the parties, a dispute that otherwise could be adjudicated under [ §§ 1 through 9] 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:
(b) The arbitration must be governed by the Uniform Arbitration Act, Title 27, chapter 5. If there is a conflict between the Uniform Arbitration Act and [ §§ 1 through 9], [ §§ 1 through 9] apply.
(c) The arbitrator is bound by [ §§ 1 through 9].
(3) If a complaint is filed under [ §§ 1 through 9], the offer to arbitrate 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 [ §§ 1 through 9] 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 [ §§ 1 through 8]. The arbitrator‘s award is final and binding, subject to review of the arbitrator‘s decision under the provisions of the Uniform Arbitration Act. [
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 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.