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