TEXT

Constitution of Montana -- Article II -- DECLARATION OF RIGHTS. Section 16. The administration of justice. 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.Mont. Const. art. II, § 16 (1972) (http://leg.mt.gov/bills/mca/CONSTITUTION/II/16.htm).

HISTORY

Sources

Montana Constitution of 1884 (Proposed)

Art. III, § 6 (1884): “That 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 should be administered without sale, denial or, delay."Mont. Const. art. III, § 6 (1884) at 4 (https://archive.org/stream/montanaconstitutmontrich#page/4/mode/2up/search/Article+III%2C+Section+6) (last accessed May 11, 2018).

Montana Constitution of 1889

Art. III, § 6 (1889): “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 should be administered without sale, denial, or delay.”Mont. Const. art. III, § 6 (1889) at 2 (https://archive.org/details/constitutionofst00montrich) (last accessed May 11, 2018).

Other Sources

According to Larry Alison and Fritz Snyder, “[t]he substance of the first and last sentences is derived from and identical to Article III, section 6 of the 1889 Montana Constitution and has roots tracing to the Magna Carta. The second sentence is new and was added at the urging of a lawyer-delegate to the 1972 Constitution Convention to reverse a decision previously rendered by the Montana Supreme Court [Ashcraft v. Mont. Power Co., 480 P.2d 812 (Mont. 1971)]. This part of the section is uniquely detailed for a constitutional provision and should be read in conjunction with the case it overruled.”Larry M. Elison & Fritz Snyder, The Montana State Constitution: A Reference Guide 58–60 (2001).

Drafting

Delegate Proposal No. 133

Delegate Proposal No. 133, introduced on Feb. 3, 1972 by Bob Campbell: “A proposal amending Article III, Section 6 of the Montana Constitution of the State of Montana to permit an injured person full remedies against all parties who may be liable for his injury excepting his fellow employees and his immediate employer, provided such immediate employer provides coverage under the Workmen’s Compensation Laws of the State of Montana.”

Section 1. Article III, Section 6 of the present constitution is amended to read as follows:

“Section 6. Courts of justice shall be open to every person, and a 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: and that right and justice shall be administered without sale, denial, or delay.”

Signed by Bob Campbell, Lyle R. Monroe, John M. Schiltz, Cedor B. Aronow, Chet Blaylock, Jerome J. Cate, Thomas M. Ask, Geoffrey L. Brazier, and George B. Heliker.Montana Constitutional Convention 1971-1972, Vol. I, Delegate Proposal No. 133, at 263 (1979).

Delegate Proposal No. 169

Delegate Proposal No. 169, introduced on Feb. 4, 1972 by Robert Lee Kelleher:

“A proposal for a new constitutional section guaranteeing access to the courts for the redress of a wrong.”

Section 1. There shall be a new Constitutional Section to provide as follows:

“Section ______. The legislature shall not deprive any citizen of access to the courts for the redress of any grievance or injury.”Montana Constitutional Convention 1971-1972, Vol. I, Delegate Proposal No. 169, at 318 (1979).

Bill of Rights Committee Proposal

Section 16. THE ADMINISTRATION OF JUSTICE. 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; and that right and justice shall be administered without sale, denial, or delay.Montana Constitutional Convention 1971-1972, Vol. II, Bill of Rights Committee Proposal, at 622 (1979).

Bill of Rights Committee Proposal (Comments)

“The committee voted unanimously to retain this section with one addition. The provision as it stands in the present Constitution [1889] 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 v. Montana Power Co., 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 intents to alter with the following additional wording: “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.” In other words the committee wants to insure that the Workmen’s Compensation Laws of the state will be used for their original purpose—to provide compensation to injured workmen—rather than to deprive an injured worker of redress against negligent third parties (beyond his employer and fellow employees) because his immediate employer is covered by Workmen’s Compensation. The committee believes that clarifying this remedy would have a salutary effect on the conscientiousness of persons who many contract out work to be done on their premises. To permit no remedy against third parties in cases where the employer is covered by Workmen’s Compensation is to encourage persons with rundown premises to contract out work without improving the quality of the premises. The committee urges that this is an abuse of the Workmen’s Compensation Law and constitutes a mis-application of that law to protect persons who are negligent."Montana Constitutional Convention 1971-1972, Vol. II, Bill of Rights Committee Proposal, at 636–37 (1979).

"The committee commends this provision to the convention with the belief that it is an important, if technical, aspect of the administration of justice.”Montana Constitutional Convention 1971-1972, Vol. II, Bill of Rights Committee Proposal, at 636–37 (1979).

Floor Debate

Verbatim transcript on March 8, 1972

Much of the debate surrounding Section 16 concerned the Ashcraft v. Mont. Power Co., 480 P.2d 812 (Mont. 1971) case and the scope of the section. Most of the delegates who spoke strongly supported the section and expressed that they felt the ruling in Ashcraft was unjust. A few delegates brought up specific examples of contractors and independent contractors who were injured in oilfield and ranching accidents.

Delegate Murray: “Mr. Chairman. I move that when this committee does rise and report, after having had under consideration Section 16 of Proposal 8, it recommend that the same be adopted. Mr. Chairman.”

Chairman Graybill: “Mr. Murray.”

Delegate Murray: . . . “[W]e feel that the right to third party action is a right which we should establish in our Constitution. It is a right which working men and women who are unfortunate enough to be injured have had for nearly 80 years in this state. We feel that it was wrongly taken away from these people by the Supreme Court decision which we mentioned [Ashcraft v. Mont. Power Co., 480 P.2d 812 (Mont. 1971)]. We feel that perhaps we are legislating in asking that this be written into our Constitution, but we of the committee really believe that we are acting in a judicial manner in asking that it be written in the Constitution for we feel that this Convention, perhaps, is the court of last resort for injured working men and women in Montana with resect to the third party lawsuit, and we recommend that the section be adopted.”

. . .

Delegate Dahood: “Mr. Chairman, I had intended not to speak on this particular section simply because I was trial counsel on behalf of Charles Ashcraft, who is permanently disabled for the rest of his life and shall never work against at his trade. 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 is 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.” . . .

. . .

Delegate Eck: “I rise to support our committee’s recommendation for this section. I admit that when it first came up from—for discussion, I was appalled at the idea of having something like this in the Bill of Rights. Since that time, I’ve talked to a good many lawyers. I’ve only run into a couple of them who don’t feel that this Supreme Court case [Ashcraft v. Mont. Power Co., 480 P.2d 812 (Mont. 1971)] was just—was grossly unfair, that an injustice was done to the state, and that the best way to remedy it would be to put it into the Constitution. I did talk with one district judge who suggested that, given a period of time, the climate and the character of the Supreme Court probably would change and they would—probably would reverse this. But I think that in the meantime a good many Montanans are going to suffer an injustice, and I think that, for the most part, our Bill of Rights is really to prevent injustice, even to the few. I also hesitated seeing it come up on the floor, because I think that it really represents a slap in the face to our Supreme Court. And this has been discussed with a great many people. But I think that in this case, the Constitutional Convention does have an opportunity to correct a most unfortunate situation.”Montana Constitutional Convention 1971-1972 Verbatim Transcript, Vol. V, at 1753–58 (1981).

Adoption

Final considerations for Article II, § 16 were taken on March 18, 1972. 76 delegates voted in favor of its adoption, while 21 delegates voted not to adopt it. Section 16 was adopted on March 22, 1972 along with the other 35 sections of Article II. 92 delegates voted in favor of adopting Article II, while 3 delegates voted not to adopt it.Montana Constitutional Convention 1971-1972 Verbatim Transcript, Vol. V, at 2643–44, 2933–34 (1981).

Ratification

Vote

Article II, § 16 of the 1972 Constitution was adopted by the 100 delegates to the Constitutional Convention on March 22, 1972, and was ratified by the citizens of Montana on June 6, 1972, through Referendum No. 68.

1972 Voter Information Pamphlet

The 1972 Voter Information Pamphlet states of § 16: “Adds to the 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.”The Proposed 1972 Constitution for the State of Montana Official Text with Explanation (Voter’s Information Pamphlet), at 6 (http://www.umt.edu/law/library/files/1972voterspamphlet) (last accessed May 12, 2018).

Montana News & Unofficial Commentary

1972 Montana Constitution Newspaper Supplement, Campbell Collection

“Most of the revisions did not elicit much different of opinion in the Convention. One exception to this is the new portion of section 16. A new sentence restores the workman’s compensation law to what is was before passage of Chapter 49, Laws of 1995 as interpreted by the state Supreme Court. Those who opposed inclusion of this sentence maintained that it was statutory in nature and should have been left to the legislature. Supporters of its inclusion felt that the worker’s right to pursue adequate compensation for industrial accidents is a basic right which should be recognized in the Constitution.”1972 Montana Constitution Newspaper Supplement, Campbell Collection, at 3, (http://www.umt.edu/media/law/library%5CMontanaConstitution%5CCampbell/1972MTConstNewspaperSupp.pdf) (last accessed May 11, 2018).

INTERPRETATION

• Ashcraft v. Mont. Power Co., 480 P.2d 812 (Mont. 1971) (holding that a general contractor was absolved from liability under the independent contractor defense in a lineman's negligence claim because the lineman's immediate employer was an independent contractor who was required to obtain workmen's compensation insurance by the general contractor). This case is not an interpretation of Art. II, § 16, but instead inspired its newly enacted form in 1972 which differed from the 1889 version.

• Constitutional Initiative No. 30. This sought to amend Section 16 “by narrowing or reversing decisions that had held legislative attempts to limit recovery for injuries unconstitutional.” It was approved by the electorate on November 4, 1986 but never became law. The language of the proposed amendment was as follows: “This section shall not be construed as a limitation upon the authority of the legislature to enact statutes establishing, limiting, modifying, or abolishing remedies, claims for relief, damages, or allocations of responsibility for damages in any civil proceeding; except that any express dollar limits on compensatory damages for actual economic loss for bodily injury must be approved of by a 2/3 vote of each house of the legislature.”

• State ex rel. Mont. Citizens for Pres. of Citizen's Rights v. Waltermire, 738 P.2d 1255 (Mont. 1987) (holding that the proposed amendment (Constitutional Initiative No. 30, 1986) was defective in the manner it was submitted to the electors).

COMMENTARY

• Larry M. Elison & Fritz Snyder, The Montana State Constitution: A Reference Guide 58–60 (2001).