Oberson v. United States Department of Agriculture, Forest Service , 339 Mont. 519 ( 2007 )

November 7 2007
No. OP 06-0232
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 293____________________________________
LORI OBERSON, Legal Guardian for BRIAN MUSSELMAN,
an incapacitated person; KIMBERLEE MUSSELMAN,
individually and as the Natural Mother of DEVON MUSSELMAN,
a minor,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE,
Defendant.
____________________________________
ORIGINAL PROCEEDING: Certified Question, U.S. Court of Appeals Ninth Circuit
The Hon. William W. Schwarzer, Senior District Judge;
Hon. Ronald M. Gould and Hon. Marsha S. Berzon, Circuit Judges
COUNSEL OF RECORD:
For Plaintiffs:
Andrew D. Huppert (argued), Attorney at Law, Missoula, Montana
Tom L. Lewis and J. David Slovak, Lewis, Slovak & Kovacich, Great
Falls, Montana
For Defendant:
H. Thomas Byron, III (argued), U.S. Dept. of Justice, Civil Division,
Washington, D.C.
Peter D. Keisler, U.S. Dept. of Justice, Civil Division, Washington, D.C.
William W. Mercer, U.S. Attorney for the District of Montana, Billings,
Montana
Victoria Laeder Francis, U.S. Attorney’s Office, Billings, Montana
For Amicus Montana Fish, Wildlife & Parks:
Robert N. Lane, Chief Counsel, Fish, Wildlife & Parks, Helena, Montana
For Amicus Montana Trial Lawyers Association:
Michael G. Eiselein, Lynaugh, Fitzgerald, Eiselein & Grubbs, Billings,
Montana
Lawrence A. Anderson, Attorney at Law, Great Falls, Montana
For Amicus Montana Defense Trial Lawyers Association:
Mikel L. Moore (argued), Christensen, Moore, Cockrell, Cummings &
Axelberg, P.C., Kalispell, Montana
____________________________________
Argued: April 20, 2007
Submitted: May 1, 2007
Decided: November 7, 2007
Filed:
_____________________________________________
Clerk
2
Justice Brian Morris delivered the Opinion of the Court.
¶1 Lori Oberson, as legal guardian for Brian Musselman (Musselman), and others,
(collectively Oberson), brought an action in the United States District Court for the
District of Montana under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680,
alleging that the United States Forest Service (Forest Service) negligently had failed to
correct or warn of a dangerous condition on the snowmobile trail where Brian
Musselman was injured. Oberson and the Forest Service cross-appealed to the United
States Court of Appeals for the Ninth Circuit from the judgment of the District Court
following a bench trial.
¶2 The Ninth Circuit certified three questions of law to this Court pursuant to Rule
44(c) of the Montana Rules of Appellate Procedure. We accepted the following three
questions in our order dated April 5, 2006:
¶3 Does the gross negligence standard of care in the snowmobile liability statute,
Mont. Code Ann. § 23-2-653 (1996), violate the Montana equal protection clause, Mont.
Const. art. II, § 4?
¶4 If the snowmobile liability statute’s gross negligence standard is unconstitutional,
does the recreational use statute’s willful or wanton misconduct standard of care, Mont.
Code Ann. § 70-16-302(1) (1996), apply in its place?
¶5 If neither the snowmobile liability statute nor the recreational use statute provide
an applicable standard of care, does the ordinary care standard, Mont. Code Ann. § 27-1-
701, apply?
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FACTUAL AND PROCEDURAL HISTORY
¶6 In February 1996 Musselman, Patrick Kalahar (Kalahar), Tim Johnson (Johnson),
and Jamie Leinberger (Leinberger) were riding their snowmobiles at night on the Big Sky
Trail, a trail maintained by the Forest Service on Forest Service land, outside West
Yellowstone, Montana. The group came upon a sudden, unmarked, steep decline in the
trail. Musselman reached the decline first and safely negotiated the hill, but stopped his
snowmobile after Johnson had wrecked. Musselman dismounted from his snowmobile
and began to walk across the trail when Kalahar and Leinberger roared over the hill at
approximately 55 mph. One of their two snowmobiles struck Musselman in the head,
causing him catastrophic brain injuries.
¶7 Oberson brought suit in federal court against the Forest Service under the FTCA.
She alleged that the Forest Service negligently had failed to correct or warn of the danger
posed by the hill where Musselman was injured, and that its negligence was the
proximate cause of Musselman’s injuries. The Forest Service filed a third-party
complaint against Leinberger, Kalahar, and Johnson, alleging that their negligence had
caused Musselman’s injuries. Kalahar settled and the court entered a default judgment
against Johnson. The case proceeded to trial against the Forest Service with Leinberger
as the sole third-party defendant.
¶8 The Forest Service argued in pre-trial proceedings that it was immune to liability
in light of the fact that its decision not to mark the hazardous hill was “discretionary”
within the meaning of 28 U.S.C. § 2680(a). It also argued that §§ 23-2-651, 653-54,
MCA (1995) (the snowmobile liability statute), relieved it from a duty to warn of the
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hazardous hill because “a snowmobile area operator has no duty to eliminate, alter,
control, or lessen the risk inherent in the sport of snowmobiling,” § 23-2-653(3), MCA.
The court rejected both affirmative defenses. The court concluded with respect to the
latter that the hill at issue was not one of the risks “inherent in the sport of
snowmobiling.”
¶9 The District Court looked next to Montana negligence law to determine the
substantive law governing Oberson’s FTCA claim. The court refused the Forest
Service’s invitation to apply the “gross negligence” standard found in the snowmobile
liability statute in light of the fact that this Court in Brewer v. Ski-Lift, Inc., 234 Mont.
109, 762 P.2d 226 (1988), had found a similar provision relating to ski area operators to
violate the Equal Protection Clause of the Montana Constitution.
¶10 The court also barred the Forest Service from arguing that the “willful or wanton”
conduct standard found in §§ 70-16-301, 302, MCA (1995) (recreational use statute)
applied in place of the “gross negligence” provision in the snowmobile liability statute.
The court concluded that the more specific snowmobile liability statute had preempted
the willful or wanton standard in the recreational use statute. The court determined, in
the absence of any other governing statute, that it would apply the catch-all “ordinary
care” standard found at § 27-1-701, MCA. The court applied the ordinary care standard
to apportion 40% of the responsibility for Musselman’s damages to the Forest Service,
10% to Musselman, and 50% to Kalahar and Leinberger jointly.
¶11 The Forest Service appealed the District Court’s determination of negligence and
its refusal to apply the discretionary function exception of the FTCA. Oberson cross-
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appealed from the court’s liability allocation of 50% to Kalahar and Leinberger. The
Ninth Circuit affirmed the District Court “in all respects except that [it left] for future
resolution the determinative question of the appropriate standard of care pending the
disposition “of this request for certification.”
DISCUSSION
¶12 Does the gross negligence standard of care in the snowmobile liability statute,
Mont. Code Ann. § 23-2-653 (1996), violate the Montana equal protection clause, Mont.
Const. art. II, § 4?
¶13 Oberson challenges the provisions in the snowmobile liability statute that apply a
gross negligence standard of care to snowmobile area operators. The statute provides, in
relevant part, that a “snowmobile area operator is liable for death or injury to a
snowmobiler or other person or property only for an act or omission that constitutes gross
negligence.” Section 23-2-653(2), MCA (1995). It also provides that a “snowmobile
area operator who attempts to eliminate, alter, control, or lessen the risk inherent in the
sport of snowmobiling is liable only for an act or omission that constitutes gross
negligence.” Section 23-2-653(3), MCA (1995).
¶14 We presume that “all statutes are constitutional, and we attempt to construe them
in a manner that avoids unconstitutional interpretation.” State v. Trull, 2006 MT 119, ¶
30, 332 Mont. 233, ¶ 30, 136 P.3d 551, ¶ 30. This Court requires a party challenging a
statute to prove, beyond a reasonable doubt, that the statute is unconstitutional. Trull, ¶
30.
¶15 Oberson contends that this Court’s decision in Brewer requires us to hold that the
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snowmobile liability statute’s gross negligence provisions violate equal protection. This
Court in Brewer held that various provisions in §§ 23-2-731 through 737, MCA (1995)
(the skier responsibility statutes), violated the “constitutional guarantee of equal
protection.” Brewer, 234 Mont. at 116, 762 P.2d at 231. The Court summarized the
unconstitutional provisions as “prohibit[ing] the skier from obtaining legal recourse
against an operator even if the injury is proximately caused by the negligent or even
intentional actions of the operator.” Brewer, 234 Mont. at 114, 762 P.2d at 230.
¶16 The Court determined that the skier responsibility statutes sought to “protect[] the
ski industry from frivolous lawsuits and liability over which the operator has no control.”
Brewer, 234 Mont. at 113, 762 P.2d at 229. The Court held that “there is no rational
relationship between this purpose and requiring that skiers assume all risks for injuries
regardless of the cause and regardless of the presence of negligence or intentional
conduct on the part of the ski area operator.” Brewer, 234 Mont. at 115, 762 P.2d at 230.
The Court held that these provisions were “needlessly over broad [, going] . . . far beyond
the stated purposes of the statutes . . . .” The Court concluded that the provisions could
not “pass even a minimum rationality test.” Brewer, 234 Mont. at 115, 762 P.2d at 230.
¶17 The snowmobile liability statute’s statement of purpose closely mirrors the skier
responsibility statute’s statement of purpose that this Court analyzed in Brewer.
Compare § 23-2-651, MCA (1995) with § 23-2-731, MCA (1979). The snowmobile
liability statute’s purpose is stated fairly as “protecting [snowmobile area operators] from
frivolous lawsuits and liability over which the operator has no control.” Brewer, 234
Mont. at 113, 762 P.2d at 229. Its gross negligence standard of care bears no rational
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relationship to this purpose for the same reasons we described in Brewer. The statute
relieves snowmobile area operators of liability for their “negligen[t] or intentional
conduct” that is, by definition, within their control. Brewer, 234 Mont. at 115, 762 P.2d
at 230.
¶18 The Forest Service correctly points out that “the first prerequisite to a meritorious
claim under the equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly situated groups in an unequal manner.”
Powell v. State Compensation Ins. Fund, 2000 MT 321, ¶ 22, 302 Mont. 518, ¶ 22, 15
P.3d 877, ¶ 22. It argues that the “legislature here treated all snowmobilers identically,
and thus created no distinction or classification that warrants equal protection review.”
The Forest Service attempts to distinguish this situation from skiing. It argues that the
legislature was justified in treating snowmobilers as a unique class in light of the fact that
snowmobilers are “unlike skiers and horeseback riders and hikers (for example), . . .
because snowmobilers use motorized equipment for high speeds in a natural
environment.” It also contends that the legislature was particularly concerned with the
economic well being of snowmobiling as it has a major effect on the state’s economy.
¶19 The basic rule of equal protection “is that persons similarly situated with respect to
a legitimate governmental purpose of the law must receive like treatment.” Rausch v.
State Compensation Ins. Fund, 2005 MT 140, ¶ 18, 327 Mont. 272, ¶ 18, 114 P.3d 192, ¶
18. We do not operate on a blank slate, however, regarding the appropriate classification
for our equal protection analysis. We resolved the classifications at issue here in Brewer
where this Court looked to the statute’s purpose in order to determine the threshold
8
question of whether the statute created a discriminatory classification—i.e. a
classification that treats two or more similarly situated groups in an unequal manner.
Brewer, 234 Mont at 112-15, 762 P.2d at 228-30. This Court determined in Brewer that
all inherently dangerous sports, including skiing, were similarly situated with respect to
the skier responsibility statute’s purpose of immunizing area operators from liability for
the inherent risks of the sport for which they provide a venue. Brewer, 234 Mont at 112,
762 P.2d at 230. The Court concluded that the skier responsibility statute “classif[ied]
skiers and treat[ed] them differently than those who engage in other sports activities
which are inherently dangerous.” Brewer, 234 Mont at 112, 762 P.2d at 228.
¶20 We discern no difference between the snowmobile liability statute’s purpose and
the skier responsibility statute’s purpose. Both statutes seek to prevent frivolous lawsuits
by immunizing area operators from the inherent risks of the sport over which the operator
has no control. All operators who provide a venue for any inherently dangerous sport are
similarly situated with respect to the mischief these statutes propose to remedy. The
snowmobile liability statute thus classifies snowmobile area operators and snowmobilers
and treats them differently from other similarly situated groups. Brewer, 234 Mont at
112, 762 P.2d at 228. These other similarly situated groups, including “ski area
operator[s],” § 23-2-733, MCA (1995), “persons responsible for equines,” § 27-1-725,
MCA (1995), and “outfitters, guides and professional guides,” § 37-47-402, MCA
(1995), operate pursuant to a general negligence standard. We fail to see how either the
unique economics of the snowmobile industry or the addition of a motor distinguishes the
snowmobilers from other inherently dangerous sports with respect to the snowmobile
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liability statute’s purpose.
¶21 The Forest Service lastly attempts to distinguish Brewer on the grounds that the
Brewer Court focused on the fact that the skier responsibility statute had relieved the ski
area operators of “all duties otherwise owed by a ski area operator to skiers . . . .” We
disagree. The Brewer Court focused on the fact that the statute immunized the ski area
operator from liability that was within the operator’s control—e.g. their own
negligence—despite the legislature’s expressed intent to protect the area operator only
from liability for risks inherent in the sport. Brewer, 234 Mont. at 115, 762 P.2d at 230;
Mead v. M.S.B., Inc., 264 Mont. 465, 472, 872 P.2d 782, 787 (1994) (noting that “we
concluded [in Brewer] that protecting the operators of ski areas from liability for their
own negligence bore no relationship to protecting them from liability from inherent risks
in the sport of skiing.”) (Emphasis added).
¶22 We conclude that Oberson has proven, beyond a reasonable doubt, that the “gross
negligence” provision in § 23-2-653, MCA (1995), is “over broad,” extends “beyond” its
stated purpose and fails to pass rational basis review. Brewer, 234 Mont at 115, 762 P.2d
at 230; Trull, ¶ 30. The gross negligence standard of care in the snowmobile liability
statute, Mont. Code Ann. § 23-2-653 (1996), violates the Montana equal protection
clause, Mont. Const. art. II, § 4.
¶23 If the snowmobile liability statute’s gross negligence standard is unconstitutional,
does the recreational use statute’s willful or wanton misconduct standard of care, Mont.
Code Ann. § 70-16-302(1) (1996), apply in its place?
¶24 We next determine what standard of care governs the Forest Service’s conduct in
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the absence of the gross negligence standard. The parties’ disagreement on this issue
centers around three different statutes, all of which have a different scope of application,
and all of which provide a different standard of care. The snowmobile liability statute
applies a gross negligence standard to “snowmobile area operators.” The “recreational
use” statute, § 70-16-302(1), MCA (1995), applies a “willful or wanton” standard to
“landowners” who allow individuals to use their land, free of charge, for “recreational
uses,” such as snowmobiling. Finally, § 27-1-701, MCA, applies an “ordinary care”
standard to everyone, “[e]xcept as otherwise provided by law . . . .”
¶25 The parties correctly point out that the gross negligence standard in the
snowmobile liability statute would govern the actions of the Forest Service if it were
constitutional, in light of the fact that the snowmobile liability statute is the most specific
of the three statutes with respect to “snowmobile area operators.” See § 1-2-102, MCA
(“[w]hen a general and particular provision are inconsistent, the latter is paramount to the
former . . . .”); see also Whalen v. Montana Right To Life Ass’n, 2002 MT 328, ¶ 9, 313
Mont. 204, ¶ 9, 60 P.3d 972, ¶ 9 (“[t]his Court has repeatedly held that ‘when a general
statute and a specific statute are inconsistent, the specific statute governs, so that a
specific legislative directive will control over an inconsistent general provision.’”). The
Forest Service argues, however, that the willful or wanton standard described in
Montana’s recreational use statute, § 70-16-302(1), MCA (1995), should apply in the
absence of the snowmobile liability statute’s gross negligence standard. It argues that “if
the snowmobile statute was unconstitutional, and hence a nullity, at the time of the
incident in this case,” then the recreational use statute would provide the governing
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standard of care in light of the fact that it represents the next most specific statute with
respect to snowmobilers and snowmobile area operators. The Forest Service’s argument
hinges, however, upon this Court declaring the entire snowmobile liability statute
unconstitutional.
¶26 Our decision does not void the entire snowmobile liability statute. A statute “‘is
not destroyed in toto because of an improper provision unless such provision is necessary
to the integrity of the statute or was the inducement to its enactment.’” Montana Auto
Ass’n v. Greely, 193 Mont. 378, 399, 632 P.2d 300, 311 (1981) (quoting Hill v. Rae, 52
Mont. 378, 389-90, 158 P. 826, 831 (1916)). We cannot say that removing the gross
negligence standard destroys the integrity of the snowmobile liability statute in light of
the fact that the legislature amended the statute in 1999, following the federal district
court’s decision in Riska v. USDA, CV-96-63-BU-DWM (D. Mont. Oct 14, 1997). The
federal court held that the gross negligence standard violated equal protection pursuant to
our decision in Brewer. The legislature’s amended version contains a general negligence
standard. We likewise cannot determine that the gross negligence provision induced the
legislature to enact the snowmobile liability statute when the legislature enacted the skier
responsibility statute, the equine liability statute, §§ 27-1-725 through 727, MCA (1995),
and the outfitter and guide liability statute, §§ 37-47-401 through 404, MCA (1995), with
a general negligence standard. As a result, we strike only those provisions that apply a
gross negligence standard of care to snowmobile area operators. We leave the remainder
of the statute intact, including those provisions in §§ 23-2-653(1) and (3), MCA (1995),
12
describing the duties of snowmobile area operators, and in § 23-2-654, MCA (1995),
describing the responsibilities of snowmobilers.
¶27 This Court took a similar approach in Brewer, 234 Mont. at 116, 762 P.2d at 231,
when we left the remainder of the skier responsibility statute in force after striking
several sections of the statute as unconstitutional. The snowmobile liability statute
otherwise continues to control the duties and responsibilities of the Forest Service in this
case. The more general recreational use statute’s willful or wanton misconduct standard
of care, Mont. Code Ann. § 70-16-302(1), MCA (1995), has no application under these
circumstances.
¶28 If neither the snowmobile liability statute nor the recreational use statute provide
an applicable standard of care, does the ordinary care standard, Mont. Code Ann. § 27-
1-701, apply?
¶29 We address finally the question of what standard to apply to the Forest Service’s
conduct now that we have declared unconstitutional the only explicit standard of care in
the snowmobile liability statute. This Court faced a similar situation in Mead where the
plaintiff brought a negligence claim against a ski resort for injuries that he sustained
when he struck a rock outcropping while skiing. Mead, 264 Mont. at 468, 872 P.2d at
784.
¶30 The plaintiff claimed that the ski resort negligently had designed, constructed, and
maintained the ski trail on which he was injured. Mead, 264 Mont. at 468, 872 P.2d at
784. The ski resort responded that its duties were limited to those duties enumerated in
the 1989 skier responsibility statute. The ski resort noted specifically that the legislature
13
had failed to list the duty of ordinary care among the duties enumerated in the statute.
Mead, 264 Mont. at 471, 872 P.2d at 786. This Court determined that the general
statutory duty of ordinary care, as defined in § 27-1-701, MCA, applied to ski area
operators even though the skier responsibility statute enumerated no such duty. Mead,
264 Mont. at 474, 872 P.2d at 788.
¶31 Our decision at ¶¶ 13-22 to strike the gross negligence standard in the snowmobile
liability statute leaves the statute in a state similar to the skier responsibility statute that
we construed in Mead. The snowmobile liability statute now enumerates the duties and
responsibilities of the snowmobile area operators and snowmobilers without a specified
standard of care. Our holding in Mead requires, under these circumstances, that the
general statutory duty of due care, set forth in § 27-1-701, MCA, provides the standard of
care to govern the Forest Service’s actions in this case. Mead, 264 Mont. at 474, 872
P.2d at 788.
¶32 For the reasons set forth we answer, “yes,” “no,” and “yes,” respectively, to the
three questions certified to this Court by the Ninth Circuit.
/S/ BRIAN MORRIS
We Concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
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Justice W. William Leaphart concurring.
¶33 I specially concur only to point out that in ¶ 22, the Court notes that “Oberson has
proven, beyond a reasonable doubt, that the ‘gross negligence’ provision in § 23-2-653,
MCA (1995), is ‘overbroad,’ extends ‘beyond’ its stated purpose and fails to pass rational
basis review.” This Court has applied this “beyond a reasonable doubt” standard to
constitutional challenges for over 100 years, beginning with State v. Camp Sing, 18
Mont. 128, 44 P. 516 (1896). The standard is applied by many of our sister states, too
numerous to cite. It also finds support in a very early decision from the United States
Supreme Court:
“It must be remembered that, for weighty reasons, it has been assumed as a
principle, in construing constitutions, by the Supreme Court of the United
States, by this court and by every other court of reputation in the United
States, that an act of the legislature is not to be declared void unless the
violation of the Constitution is so manifest as to leave no room for
reasonable doubt;” and, in Fletcher v. Peck, Chief Justice Marshall said, “It
is not on slight implication and vague conjecture that the legislature is to be
pronounced to have transcended its powers and its acts to be considered
void. The opposition between the Constitution and the law should be such
that the judge feels a clear and strong conviction of their incompatibility
with each other.” It is incumbent, therefore, upon those who affirm the
unconstitutionality of an act of Congress to show clearly that it is in
violation of the provisions of the Constitution. It is not sufficient for them
that they succeed in raising a doubt.
Legal Tender Cases, Knox v. Lee, Parker v. Davis, 79 U.S. 457, 531 (1870).
¶34 Despite t h i s time-honored and well accepted standard of proving
unconstitutionality, I nonetheless find this to be an incongruous standard to apply to the
proving of a legal proposition as opposed to an issue of fact. I agree with the New York
Federal District Court’s observation that the “beyond a reasonable doubt” standard is an
15
“absurd standard of decision” for a question of law. Blue Sky Entertainment, Inc. v.
Town of Gardiner, 711 F. Supp. 678, 698 n. 19 (N.D.N.Y. 1989). In Branson School
District RE-82 v. Romer, 161 F.3d 619, 636-37, n. 15 (10th Cir. 1998), the Tenth Circuit
elaborated:
The court below, and the plaintiffs themselves, assumed on the basis
of district court precedent that the plaintiffs must prove the
unconstitutionality of Amendment 16 “beyond a reasonable doubt.”
[Citations omitted.] This circuit has never applied such a standard of proof
to a purely legal question of whether a statute is facially unconstitutional.
Cf. Blue Sky Entertainment, Inc. v. Town of Gardiner, 711 F.Supp. 678, 698
n. 19 (N.D.N.Y. 1989) (“In essence, the ‘beyond a reasonable doubt’
standard is suited to resolving questions which involve some element of
fact. A question of law is not decided by any standard of decision
prescribed for a trier of fact.”).
¶35 I suggest that the Court adopt a standard whereby we invalidate a legislative
enactment only upon a plain showing by the challenger that the legislation in question
lacks a rational basis. See U.S. v. Mugan, 441 F.3d 622, 627 (8th Cir. 2006); U.S. v.
Suarez, 263 F.3d 468, 476 (6th Cir. 2001); and Benning v. Georgia, 391 F.3d 1299, 1303
(11th Cir. 2004).
¶36 However, when reviewing a constitutional challenge under strict scrutiny or
middle-tier analysis, the burden to sustain the legislation would be upon the government.
For example, to withstand strict scrutiny analysis, the government must demonstrate that
the legislation at issue is justified by a compelling state interest and that it is narrowly
tailored to effectuate only that interest. Valley Christian School v. High School, 2004 MT
41, ¶ 29, 320 Mont. 81, ¶ 29, 86 P.3d 554, ¶ 29. Similarly, middle-tier scrutiny requires
the State to demonstrate that the law in question is reasonable and its interest in the
16
resulting classification outweighs the value of the right of the individual. Snetsinger v.
Montana University System, 2004 MT 390, ¶ 18, 325 Mont. 148, ¶ 18, 104 P.3d 445,
¶ 18. Both of these burdens are the State’s—not the challenger’s.
¶37 Therefore, I would apply the “plain showing of unconstitutionality” burden in
challenges reviewed for rational basis, but I would continue to hold the State to its
different burdens where it is the government’s obligation to demonstrate that the
challenged statute withstands middle-tier or strict scrutiny analysis.
/S/ W. WILLIAM LEAPHART
Justice James C. Nelson and Justice Patricia Cotter join in the concurring opinion of
Justice Leaphart.
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
Justice Jim Rice, dissenting.
¶38 The Court fails to properly apply rational basis review, inappropriately relies on
Brewer to support its holding, and usurps the role of the legislature to create its own
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broad classification encompassing all “inherently dangerous sports.” For these reasons, I
dissent.
¶39 Despite purporting to apply a rational basis review to the snowmobile liability
statute, the Court fails to either enunciate or apply the proper standards for an equal
protection challenge.
“The constitutionality of a legislative enactment is prima facie presumed,
and every intendment in its favor will be presumed, unless its
unconstitutionality appears beyond a reasonable doubt. The question of
constitutionality is not whether it is possible to condemn, but whether it is
possible to uphold the legislative action which will not be declared invalid
unless it conflicts with the constitution, in the judgment of the court,
beyond a reasonable doubt.” Every possible presumption must be indulged
in favor of the constitutionality of a legislative act. The party challenging a
statute bears the burden of proving that it is unconstitutional beyond a
reasonable doubt and, if any doubt exists, it must be resolved in favor of the
statute.
Powell v. State Compensation Ins. Fund, 2000 MT 321, ¶ 13, 302 Mont. 518, ¶ 13, 15
P.3d 877, ¶ 13 (citations omitted) (emphasis added) (quoting Stratemeyer v. Lincoln
County, 259 Mont. 147, 150, 855 P.2d 506, 508-09 (1993)). We are to declare a statute
to be valid “unless the constitutional violation is ‘clear and palpable.’” Linder v. Smith,
193 Mont. 20, 31, 629 P.2d 1187, 1193 (1981) (citing Noll & Kenneady v. Bozeman, 166
Mont. 504, 507, 534 P.2d 880, 881 (1975)).
¶40 The Court glosses over the proper rational basis standard of review, never
applying it in the subsequent discussion. “As explained by the United States Supreme
Court, to survive scrutiny under the rational basis test, classifications must be reasonable,
not arbitrary, and they must bear a fair and substantial relation to the object of the
legislation, so that all persons similarly circumstanced shall be treated alike.” Montana
18
Stockgrowers Assoc. v. State Dept. of Revenue, 238 Mont. 113, 117-18, 777 P.2d 285,
288 (1989) (citing Eisenstadt v. Baird, 405 U.S. 438, 447, 92 S. Ct. 1029, 1035 (1972)).
Such a review, by definition, allows for the utmost deference to our legislature’s
decision: any conceivable purpose will satisfy rational basis review. See Johnson v.
Sullivan, 174 Mont. 491, 498, 571 P.2d 798, 802 (1977) (citations and internal quotation
marks omitted) (“[I]n applying this rational basis test, a discrimination will not be set
aside if any state of facts reasonably may be conceived to justify it.”). “The burden is
therefore on the one attacking the classification to negative every conceivable basis
which might support it, at least where no fundamental right is imperiled.” Montana
Stockgrowers Assoc., 238 Mont. at 119, 777 P.2d at 289 (quoting American Mobile Home
Assoc. v. Dolan, 553 P.2d 758, 762 (Colo. 1976)).
¶41 In my view, the Court has not engaged in the aforementioned analysis, and no
such showing has been made by the parties that the snowmobile liability statute
represents a “clear and palpable violation” of the Constitution. Rather than apply rational
basis review and acknowledge that the legislature is entitled to significant deference
under that standard, the Court jumps straight to the conclusion that because “[t]he
snowmobile liability statute’s statement of purpose closely mirrors the skier
responsibility statute’s statement of purpose,” and because this Court found the skier
liability statute in Brewer unconstitutional, the same must be true of the snowmobile
liability statute at issue here. However, the Court’s reliance on Brewer is inappropriate,
because an essential component to the holding in Brewer was the Court’s finding that the
skier liability statute eliminated all duties a ski area operator owed to its users. Such is
19
not the case here, where the legislature has decided to limit, but not eliminate, the duties a
snowmobile area operator owes to its users. To the contrary, an elementary rational basis
review leads to the conclusion that the legislature did have a conceivable basis for
limiting the liability of snowmobile area operators, including reducing the cost of liability
insurance and preventing frivolous lawsuits. As Justice McDonough noted in his dissent
to Brewer, such purposes have long been recognized by other courts as a valid basis for
classification. Brewer, 234 Mont. at 117, 762 P.2d at 232 (McDonough, J., dissenting)
(citing cases). Furthermore, the statute still provides an avenue for compensating
snowmobilers who are injured due to gross negligence. A proper rational basis review
clearly distinguishes Brewer and clearly satisfies the rational basis test.
¶42 It is not supposed to be this Court’s role to decide how to classify various groups
for the purposes of equal protection. “A legislature must have substantial latitude to
establish classifications that roughly approximate the nature of the problem perceived,
that accommodate competing concerns both public and private, and that account for
limitations on the practical ability of the State to remedy every ill.” Plyler v. Doe, 457
U.S. 202, 216, 102 S. Ct. 2382, 2394 (1982). Such classifications need not be perfect or
ideal. See Marshall v. U.S., 414 U.S. 417, 428, 94 S. Ct. 700, 707 (1974) (“The line
drawn by Congress at two felonies . . . might, with as much soundness, have been drawn
instead at one, but this was for legislative, not judicial choice.”). Nonetheless, the Court
has taken it upon itself to lump all “inherently dangerous sports” into one broad category.
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¶43 The Court fails to acknowledge that within the spectrum of outdoor recreational
activities, some activities are more dangerous than others. As Justice McDonough said in
Brewer:
Risk distinctions between sports exist, and rational choices based on the
perceived distinctions are made everyday. Sky diving and bull riding are to
some people considered dangerous, while football is not. The legislature
should be free to recognize the degrees of such risk and impose duties and
obligations where needed.
Brewer, 234 Mont. at 117, 762 P.2d at 231-32 (McDonough, J., dissenting). It is the
province of the legislature, not this Court, to draw those lines. See Meech v. Hillhaven
West, Inc., 238 Mont. 21, 31-33, 776 P.2d 488, 493-95 (1989). Traditionally, the
legislature has been free to draw those lines in a way that might expand or limit tort
liability as it sees fit. As we said in Meech, “[l]egislative 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.” Meech, 238 Mont. at 33, 776 P.2d at 495.
This exercise in line drawing obviously includes the task of setting aside particular
classes so as to expand or limit tort liability. Provided the classification has a
conceivable basis, it does not offend the Constitution “merely because it is not made with
mathematical nicety, or because in practice it results in some inequality.” Lindsley v.
Nat. Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340 (1911).
¶44 The class at issue in this case should be “snowmobilers,” rather than all
“inherently dangerous sports,” a label for which no definition exists and for which no line
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has been drawn.1 The reason the legislature should be allowed to distinguish
snowmobiling from other dangerous activities is the same reason that snowmobiling is
such a popular winter activity: snowmobiles have motors. People want to snowmobile
because the machine allows them to go faster, usually over snow, up steeper inclines
(possibly resulting in avalanches), and jump farther through the air. Among wintertime
activities, snowmobiles are uniquely equipped for these pursuits. Take off the motor, and
snowmobiles become considerably less attractive as a recreational device. This one
fundamental fact not only draws people to snowmobiling (rather than, say, cross-country
skiing), but also warrants and justifies a different classification. Snowmobilers are not
“similarly situated” to skiers, horseback riders, or outfitters and guides, as the Court
contends. Rather, it is the unique dangers inherent only in snowmobiling that led the
legislature to exempt snowmobile area operators from liability, provided they were not
guilty of gross negligence. The distinction between snowmobiling and other sports is
conceivable and thus capable of satisfying rational basis review—and is precisely the sort
of line-drawing the legislature—not this Court—should undertake. To classify all
“inherently dangerous activities” as “similarly situated” offends that role which our
Constitution has given to the legislature separate and apart from this Court.
¶45 The Court, in offering an analysis which relies almost exclusively on Brewer, has
failed to give any deference to the conceivable purpose behind the snowmobile liability
1
Is swimming “inherently dangerous” to the same extent that downhill skiing is?
What about cross-country skiing? Skydiving? Freestyle motorcycle dirt jumping?
Kayaking? And are all such sports as “inherently dangerous” as riding a snowmobile?
One who would answer these questions should sit in a legislator’s seat.
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statute, and thus has failed to properly exercise rational basis review. For these reasons, I
would answer the Circuit Court’s question of whether the gross negligence standard of
care in the snowmobile liability statute violates the Montana Constitution’s equal
protection clause in the negative, and would not reach the remaining two issues.
/S/ JIM RICE
Chief Justice Karla M. Gray and Justice John Warner join the dissenting opinion of
Justice Rice.
/S/ KARLA M. GRAY
/S/ JOHN WARNER
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