              IN THE SUPREME COURT OF THE STATE OF M O & @ m i iy') :
                                                                    '




NOLAN C. DAVIS, et al.,                        No. 96-163

            Plaintiffs and Respondents         On Appeal From the Second Judicial
                                               District, In and for the County of
      v.                                       Silver Bow, The Honorable
                                               James E. Purcell, Judge Presiding.
UNION PACIFIC RAILROAD COMPANY,

            Defendant and Appellant.


ROBERT W. HULL,                                NO.96-031

            Plaintiff and Appellant,           On Appeal From the Eighth Judicial
                                               District, In and for the County of
      v.                                       Cascade, The Honorable Robert Goff,
                                               Judge Presiding.
BURLINGTON NORTHERN RAILROAD
COMPANY, a corporation,

            Defendant and Respondent.


MICHAEL P. MIESEN, KYLE J. POINTER,            NO. 96-1 15
and JOHN T. SAMTER,
                                               On Appeal From the Second Judicial
            Plaintiffs and Respondents,        District, In and For the County of
                                               Silver Bow, The Honorable
      v.                                       John W. Whelm, Judge Presiding.

BURLINGTON NORTHERN RAILROAD
COMPANY, a corporation,

            Defendant and Appellant.
COUNSEL OF RECORD:

         For Appellants:

                J. Daniel Hoven (argued); Browning, Kaleczyc, Berry & Hoven;
                Helena, Montana; and Thomas R. Jayne; Thompson & Mitchell;
                St. Louis, Missouri (for appellant Union Pacific Railroad Company)

                Jeff Hedger; Kroschel and Yerger; Billings, Montana
                (for appellant Burlington Northern Railroad Company)

                Alexander Blewett I11 (argued); Hoyt & Blewett; Great Falls,
                Montana; and Chas. C. Dearden; Attorney at Law; Whitefish,
                Montana (for appellant Robert W. Hull)

         For Respondents:

                Frank B. Morrison, Jr. (argued) and Larry M. Elison; Morrisons,
                McCarthy & Moore; Whitefish, Montana; and James J. Shea;
                Bricker, Zakovics & Querin; Portland, Oregon
                (for respondents Davis, et al., Miesen, Pointer, and Samter)

                Erik B. Thueson (argued), Micheal F. Lamb, and John A. Kiitzman;
                Thueson & Lamb; Helena, Montana (for respondents Nelson and Carter)

         For Arnici Curiae:

                Elizabeth A. Brennan and William A. Rossbach; Rossbach & Whiston;
                Missoula, Montana (for Montana Trial Lawyers Association)

                Thomas E. Hattersley and Teri A. Walter; Gough, Shanahan,
                Johnson & Waterman; Helena, Montana (for Pegasus Gold
                Corporation, TVX Mineral Hill, Inc., Golden Sunlight Mines, Inc.,
                Luzenac America, Inc., Stillwater Mining Company, Phelps Dodge
                Corporation, and Canyon Resources Corporation)


                                                            Submitted: January 14,1997

                                                                 Decided: April 16, 1997
Filed:
Justice Jim Regnier delivered the opinion of the Court.

       The cases of Davis, et al. v. Union Pacific Railroad Company (hereinafter Union

Pacific) and Hull, Miesen, Pointer, Samter, Nelson, and Carter v. Burlington Northern

Railroad Company (hereinafter Burlington Northern) have been consolidated for our

consideration since similar issues are raised in each case. These consolidated appeals involve

railroad workers who have sued their employers for personal injuries under the Federal

Employers Liability Act (FELA), 45 U.S.C. $8 51-60 (1994).

       The 1995 Montana Legislature amended Montana's venue statutes by adding

subsection (2) to $ 25-2-122, MCA, which provides specific venues for tort suits brought

against nonresident corporations. In each case, the defendant, relying on the amended

$ 25-2-122, MCA, moved for a change of venue. Some district courts have granted the

defendants' motions for change of venue and others have denied them, depending upon their

respective interpretations of the amended statute.

       The following issue is on appeal:

       Does fj 25-2-122(2), MCA, providing specific venues for tort suits brought against

nonresident corporate defendants, violate constitutional guarantees of equal protection?

                               FACTUAL BACKGROUND

       In 1995, the Montana Legislature amended Montana's venue statutes by adding

subsection (2) to 5 25-2-122, MCA, restricting the choice of venue for plaintiffs bringing tort

suits against nonresident corporate defendants. The statute at issue in this appeal provides:
       If the defendant is a corporation incorporated in a state other than Montana, the
       proper place of trial for a tort action is:
               (a)   the county where the tort was committed;
               (b)   the county in which the plaintiff resides; or
               (c)   the county in which the corporation's resident agent is located,
       as required by law, or in the first judicial district.

Section 25-2-122(2), MCA.

       Before the enactment of the 1995 amendment, 5 25-2- 118, MCA, the general venue

statute, controlled the place of venue for a tort action against an out-of-state defendant,

including a corporate defendant. Section 25-2-1 18, MCA, reads:

       Unless otherwise specified in this part:
                (1)    except as provided in subsection (3), the proper place of trial for
       all civil actions is the county in which the defendants or any of them reside at
       the commencement of the action;
                (2)    if none of the defendants reside in the state; the proper place of
       trial is any county the plaintiff designates in the complaint . . . .

       In the action against Union Pacific, the plaintiffs allege that due to the negligence of

Union Pacific, they have been exposed to loud noise in their workplace resulting in hearing

loss. All plaintiffs reside outside of the state of Montana, and none of the acts or occurrences

which form the bases of the complaints occurred in Montana. Defendant Union Pacific, is

incorporated in the state of Utah, operating its railroad business in several Montana counties

and has its registered agent for Montana located in Lewis and Clark County.

       Each of the plaintiffs' FELA claims were filed in Silver Bow County, Montana. The

defendant filed a motion for a change of venue based on the Legislature's amendment to

4 25-2-122(2), MCA. This amendment became effective October 1, 1995. The plaintiffs all
filed their complaints in Silver Bow County after that date. The Second Judicial District

Court ruled that Silver Bow County was an appropriate venue for their causes of action to

be filed. The defendant then filed a motion for reconsideration and request for hearing.

Following argument, the District Court reaffirmed the plaintiffs' right to bring the action in

Silver Bow County, finding that the 1995 amendment to 5 25-2-122, MCA, supplemented

the more general venue provisions in fj 25-2-1 18, MCA, to provide additional counties in

which to file tort actions against nonresident defendants.

       The cases that involve Burlington Northern share a similar procedural history to the

Union Pacific cases. In the first case, plaintiff Robert Hull was a resident of Flathead

County, where the alleged injury occurred. Burlington Northern is incorporated in Delaware

and has its registered agent for Montana located in Lewis and Clark County.

       Hull filed his FELA action in Cascade County on August 14, 1995. Burlington

Northern filed a motion to change venue under the terms of       5 25-2-122(2), MCA.      Hull

argued that since his complaint was filed prior to October 1, 1995, his case should be entitled

to proceed in Cascade County. The Eighth Judicial District Court granted the motion for a

change of venue to Flathead County under the terms of        25-2-122(2), MCA, holding the

change in the venue statute was procedural and not substantive. Thus, 5 25-2-122(2), MCA,

could be applied retroactively to a complaint filed before the effective date of the

amendment.
       In the second case, plaintiffs Meisen, Pointer, and Samter filed their FELA actions

in Silver Bow County on September 26, 1995. Meisen was a resident of Flathead County,

where his alleged injury occurred. Pointer and Samter were not residents of Montana and

allege that they were injured in Nebraska and Idaho respectively. Burlington Northern filed

a motion to change venue in each case. The Second Judicial District Court denied the motion

for a change of venue on the grounds that 6 25-2-122, MCA, provided an alternative to the

more general venue provisions in 6 25-2- 118, MCA. On reconsideration, the District Court

held that the amendment to the venue statute affected substantive rights and could not be

applied retroactively to actions filed before the amendment became effective.

       In the next case, plaintiffs Donnie Nelson and Larry Carter filed FELA actions against

Burlington Northern in Cascade County. Nelson was injured on January 26, 1991, in Hill

County, which was also where he resided at the time. Carter was injured on February 9,

1993, in Flathead County where he resided. Nelson filed his lawsuit on May 19, 1995.

Carter filed his lawsuit on October 16, 1995. Burlington Northern filed motions to change

venue based on the 1995 amendment to § 25-2-122, MCA, in both cases. In Nelson's case,

the railroad argued that the 1995 amendment was retroactive and that it applied to Nelson's

case, even though that case had been filed prior to the October 1, 1995, effective date. The

Eighth Judicial District Court granted the railroad's motions in both cases pursuant to

5 25-2-122(2), MCA.
       For purposes of the following discussion, Davis, Hull, Miesen, Pointer, Samter,

Nelson, Carter, and others will be referred to as "railroad workers." Union Pacific Railroad

Company and Burlington Northern Railroad Company will be referred as the "railroad

companies."

                               STANDARD OF REVIEW

      A legislative enactment is presumed to be constitutional and will be upheld on review

except when proven to be unconstitutional beyond a reasonable doubt. State v. Lilburn

(1994), 265 Mont. 258,262,875 P.2d 1036, 1039 (citing Ct o Billings v. Laedeke (199 I),
                                                       iy f

247 Mont. 151, 154, 805 P.2d 1348, 1349).

      There are limitations governing a court's ability to declare a statute unconstitutional.

We take cognizance of the following cautions:

      [I]t is our sacred duty to measure the Act by the terms of our constitutional
      limitations, as we interpret them. "It must be evident to anyone that the power
      to declare a legislative enactment void is one which the judge, conscious of the
      fallibility of the human judgment, will shrink from exercising in any case
      where he can conscientiously and with due regard to duty and official oath
      decline the responsibility. The legislative and judicial are co-ordinate
      departments of the government of equal dignity; each is alike supreme in the
      exercise of its proper functions, and cannot directly or indirectly while acting
      within the limits of its authority be subjected to the control or supervision of
      the other without an unwarrantable assumption by that other of power which,
      by the Constitution, is not conferred upon it. The Constitution apportions the
      powers of governments but it does not make any one of the three departments
      subordinate to another when exercising the trust committed to it. The courts
      may declare legislative enactments unconstitutional and void in some cases,
      but not because the judicial power is superior in degree or dignity to the
      legislative. Being required to declare what the law is in the cases which come
       before them, they must enforce the Constitution as the paramount law,
       whenever a legislative enactment comes in conflict with it."

State, ex rel. Mills v. Dixon (1923), 66 Mont. 76, 84-85,2 13 P. 227,229.

       Additionally:

               When a legislative course of action expressed in statutes or budgetary
       laws is tested for constitutionality under the State Constitution, our review is
       circumscribed by certain principles. We must give the state constitutional
       provision a broad and liberal construction consistent with the intent of the
       people adopting it to serve the needs of a growing state. The constitutional
       provision should receive a reasonable and practical interpretation in accord
       with common sense. 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.

Fallon County v. State (1988), 231 Mont. 443, 445-46, 753 P.2d 338, 339-40 (citations

omitted). Furthermore, every possible presumption must be indulged in favor of the

constitutionality of the Act. See State v. Safeway Stores, Inc. (1938), 106 Mont. 182, 199,



       Notwithstanding the deference that must be given to the Legislature when it enacts

a law, it is the express function and duty of this Court to ensure that all Montanans are

afforded equal protection under the law. Article 11, Section 4, of the 1972 Montana

Constitution states that:

       The dignity of the human being is inviolable. No person shall be denied equal
       protection of the laws. Neither the State nor any person, firm, corporation, or
       institution shall discriminate against any person in the exercise of his civil or
       political rights on account of race, color, sex, culture, social origin or
       condition, or political or religious ideas.

The principal purpose of the Equal Protection Clause, Article 11, Section 4, of the Montana

Constitution, is to ensure that persons who are citizens are not subject to arbitrary and

discriminatory state action. Godpey v. State F s & Game Comm 'n (198 I), 193 Mont. 304,
                                              ih



                                        DISCUSSION

       Does $ 25-2-122(2), MCA, providing specific venues for tort suits brought against

nonresident corporate defendants, violate constitutional guarantees of equal protection?

       The railroad workers contend that the 1995 amendment to the venue statute,

$ 25-2-122(2), MCA, conflicts with Article 11, Section 16, of the Montana Constitution,

stating that the "[c]ourts of justice shall be open to every person." This part of Article 11,

Section 16, is commonly known as the "open access to the courts" provision. They challenge

$25-2-122(2), MCA, and assert that, without any showing of a compelling state interest, the

statute denies a person's fundamental right to open access to the courts.

       The railroad companies counter that, although the State Constitution guarantees a right

of access to the courts, the Legislature retains the power to define the scope and extent of that

right. The companies contend that the venue statute does not leave the railroad workers

without access to the courts of Montana, but merely specifies available venues within the
state court system where they may bring tort lawsuits against nonresident corporate

defendants.

       When scrutinizing the constitutionality of legislation under an equal protection attack,

this Court reviews the legislation under one of three recognized levels of scrutiny. The most

stringent standard, strict scrutiny, is used when the action complained of infringes upon the

exercise of a fundamental right or discriminates against a suspect class, such as race or

national origin. Gulbrandson v. Carey (1995), 272 Mont. 494, 502, 901 P.2d 573, 579.

Strict scrutiny has been limited to those instances when either a fundamental right has been

infringed or a suspect classification has been established. Strict scrutiny requires the

government to show a compelling state interest for its action. Butte Community Union v.

Lewis (1986), 219 Mont. 426,430,712 P.2d 1309, 1311.

       Middle-tier scrutiny has been used in limited situations, including those where the

rights at issue have some origin in the Montana Constitution, such as welfare, but are not

found in the Declaration of Rights. Middle-tier scrutiny requires the state to demonstrate that

its classification is reasonable and that its interest in the classification is greater than that of

the individual's interest in the right infringed. Butte Community Union, 2 19 Mont. at 434,712

P.2d at 1314.

       When the right under examination is not determined to be hndamental and does not

warrant middle-tier scrutiny, it is reviewed under a rational basis test. This test requires the

government to show that the objective of the statute was legitimate and bears a rational
relationship to the classification used by the Legislature. Cottrill v. Cottrill Sodding Service

(1987), 229 Mont. 40, 744 P.2d 895.

       The railroad workers strongly urge this Court to analyze the amendment to the venue

statute under a strict scrutiny, or at the very least, a middle-tier test. They argue that

restricting venue choices, especially to FELA claimants, limits their access to the courts and

violates Article 11, Section 16, of the Montana Constitution. Alternatively, if this Court

concludes that venue rights are not the proper subject matter for strict scrutiny, the workers

urge that their constitutional rights are at the very least "implicated" by the amendment and

our analysis should proceed under a middle-tier test. State ex rel. Bartmess v. School Dist.

No. 1 (1986), 223 Mont. 269, 726 P.2d 801. The railroad companies argue that the

classification at issue in   5 25-2-122(2), MCA, involves neither a fundamental right nor a
suspect class so the appropriate standard for review is the rational basis test.

       In Ford v. Burlington Northern R.R. (1991), 250 Mont. 188,819 P.2d 169, a f d ,504

U.S. 648, 112 S. Ct. 2184 (1992), we applied the rational basis test when determining

whether 5 25-2-1 18, MCA, another venue statute, violated the Equal Protection Clause of the

Fourteenth Amendment of the United States Constitution by treating nonresidents differently

from residents for purposes of venue. We see no reason to adopt a different test in the

present case. Limiting venue does not affect access to the courts, but rather specifies the

appropriate venues available. Neither does venue implicate rights which require the

application of the middle-tier test. Therefore, the Legislature may, in its discretion, fix the
venue or place of tial of civil actions so long as the statue it enacts does not violate equal

protection of the laws and does not arbitrarily and unreasonably discriminate against a

particular person. Fraser v. Smith (1954), 128 Mont. 160,273 P.2d 105.

       Using the rational basis test, this Court must determine if there is a legitimate

governmental objective which bears some identifiable rational relationship to the

discriminatory classification. Godfrey, 193 Mont. at 307, 63 1 P.2d at 1267.

               A classification that is patently arbitrary and bears no rational
       relationship to a legitimate governmental interest offends equal protection of
       the laws. As we have previously held, equal protection of the laws requires
       that all persons be treated alike under like circumstances.

Tipco Corp., Inc. v. City o Billings (1982), 197 Mont. 339, 346, 642 P.2d 1074, 1078
                           f

(citations omitted). In this instance, we must determine whether the amendment to the venue

statute has a sufficiently reasonable relation to a proper legislative purpose so as not to be

deemed arbitrary. A classification having some reasonable basis does not deny equal

protection merely because it is not made with precise mathematical nicety or results in some

inequality. State v. Jack (1979, 167 Mont. 456, 539 P.2d 726.

       When analyzing equal protection claims under the rational basis test, this Court has

struck down laws creating arbitrary classifications without a legitimate state interest as

unconstitutional. See, e.g., McKamey v. State (1994), 268 Mont. 137, 885 P.2d 5 15 (holding

requirement that firefighters be members of the military violative of equal protection);

Arneson v. State (1993), 262 Mont. 269, 864 P.2d 1245 (holding that statute regarding
post-retirement increases in pension violated equal protection); Brewer v. Ski-Lift, Inc.

(1988), 234 Mont. 109, 762 P.2d 226 (holding that portions of the "skier's responsibility"

statutes violated equal protection); Cottrill v. Cottrill Sodding Service (1987), 229 Mont. 40,

744 P.2d 895 (holding workers' compensation statute requiring family members to elect

special coverage unconstitutional); Oberg v. City o Billings (1983), 207 Mont. 277,674 P.2d
                                                  f

494 (holding statute prohibiting polygraph tests except for law enforcement violated equal

protection).

       There is no question that under    5 25-2-122(2), MCA, tort victims are not treated
equally. Tort victims injured by nonresident corporations are subject to the restrictive venue

limitations of   5    25-2-122(2), MCA.     Tort victims injured by individuals or other

unincorporated, nonresident defendants are not subject to the venue limitations of

  25-2-122(2), MCA. They may still file their action in any county they wish, pursuant to

5 25-2-1 18(2), MCA.     The legislation clearly discriminates against the tort victim injured

by a corporate nonresident. The question is whether or not there is a rational basis to make

the classification.

       The statute's constitutional defects are revealed when reviewed in light of its practical

application. Jack, 167 Mont. at 462,539 P.2d at 729. The following example illustrates how

the classification leads to arbitrary results. If two Montana residents traveling west toward

Missoula on 1-90 were involved in separate car accidents, each as a result of an out-of-state

defendant's negligence, both victims would have the option of filing a tort claim and suing
for damages in state court. If one defendant was an out-of-state individual, the victim may

sue that person in any county in Montana. However, if the other defendant was an

out-of-state corporation, the victim's choice of venue would be limited to (I) the county of

his residence, (2) the county where the tort occurred, (3) the county where the out-of-state

corporation has its resident agent, or (4) Lewis and Clark County.

       In the example above, similarly situated plaintiffs are given vastly different venue

options by the state. The statute, 5 25-2-122(2), MCA, operates unequally on two different

classes of people. One victim has the opportunity to file a tort action in any of Montana's

fifty-six counties. However, the other victim's choice of venue is limited to a maximum of

four counties, solely due to the corporate status of the defendant.

       The railroad companies argue that the Legislature acted reasonably in distinguishing

nonresident corporations as a class from other nonresident defendants. The railroads assert

that as nonresident corporations, they are required to have a registered agent in Montana, pay

license fees and other taxes to the state, and many of the corporations provide a livelihood

to many Montanans. In contrast they argue that nonresident, noncorporate entities typically

have only a transitory connection to the state, and thus, they can be reasonably distinguished

from the class of nonresident defendants as a whole.

       We do not find this argument persuasive. Corporations are not the only nonresidents

that contribute substantially to the Montana economy. Both nonresident individuals, limited

partnerships, and partnerships pay taxes, own property, and employ Montanans. It does not
appear that the statute was intended to benefit nonresidents because of their contributions to

the state economy. By its operation, the statute discriminates against victims of nonresident

corporations. The railroad companies have failed to show some legitimate state objective for

the statute. When the Legislature changes venue statutes in such a way as to discriminate

among plaintiffs as to their choice of forum, there must be a rational basis for that

discriminatory impact. Here, there is no reasonable basis to the classification that permits

a plaintiff injured by a nonresident individual to be able to file a claim in any county, while

restricting plaintiffs who have been injured by a nonresident corporation to bring suit in a

limited number of counties.

       The railroad companies assert that 5 25-2-122(2), MCA, does not deprive plaintiffs

of equal protection by limiting their choice of venue. The railroad companies rely upon Ford

v. Burlington Northern R.R. (1991), 250 Mont. at 197,819 P.2d at 175, where this Court held

that the venue statutes that discriminated between domestic and foreign corporations did not

violate equal protection. Our analysis in Ford, however, focused on a class of corporate

defendants. The defining distinction in the class was not the form in which they chose to do

business, but their residency. Justice Souter pointed out in his opinion affirming this Court's

decision that the Legislature arguably had a rational basis for the distinction.

       In contrast to Ford, the classification in this case is based upon the form in which the

defendants chose to do business. The complaining class is a group of plaintiffs who were

injured by nonresident corporations. How can there be a rational basis to distinguish one
class of tort victims from another on the basis of the legal status in which the tort-feasor

chose to do business? Furthermore, the cases cited by the railroad companies focused on the

defendants' right to venue which is more limited than the rights of plaintiffs. Under

Montana's venue statutes, plaintiffs have the right, within certain limits, to choose the venue

when filing an action.

       This Court also recognizes that there is a commonly accepted historical justification

for allowing railroad workers greater flexibility than other litigants when choosing a forums.

See Ford, 250 Mont. at 197, 819 P.2d at 175. In these tort actions, the plaintiffs are all

railroad employees suing out-of-state corporate defendants for alleged injuries under FELA.

Relying upon the statutory language of FELA and its humanitarian and remedial purposes,

the United States Supreme Court has repeatedly noted that FELA is to be given a liberal

construction in favor of injured railroad workers so that it may accomplish Congress's

objectives. ConsolidatedRail Corporation v. Gottshall(1994),512 U.S. 532,543,114 S. Ct.

2396,2404; Urie v. Thompson (1949), 337 U.S. 163, 180,69 S. Ct. 1018, 1030.

       In this Court's analysis of FELA claims, we have followed federal case law in giving

a liberal construction in favor of injured railroad workers so that FELA may accomplish its

humanitarian and remedial purposes. See Haug v. Burlington Northern, Inc. (1989), 236

Mont. 368,770 P.2d 517; Bevacqua v. Burlington Northern, Inc. (1979), 183 Mont. 237,598

P.2d 1124;LaBella v. Burlington Northern, Inc. (1979), 182 Mont. 202,595 P.2d 1184. One

area of FELA that this Court has liberally construed in order to hrther the objectives of
FELA is a plaintiffs selection of forum in actions brought under the Act. We have found as

"highly persuasive" the policy favoring the injured worker's choice of forum. See Haug;

LaBella.

          In summary, we find that 8 25-2-122(2), MCA, is unconstitutional because it violates

the Equal Protection Clause of the Montana Constitution. There is no rational basis for

treating tort victims injured by nonresident corporate tort-feasors differently than tort victims

injured by all other nonresident tort-feasors.

          In light of our ruling, there is no need to address the retroactivity or special legislation

issues.

          The above cases are remanded to the District Courts for proceedings consistent with

our decision.




We Concur:




                     :f Justice         //
Justices
Justice Terry N. Trieweiler specially concurring.

        I concur with the majority's conclusion that tj 25-2- 122, MCA, which restricts venue

in actions against nonresident corporate defendants, violates the Equal Protection Clause

found at Article 11, Section 4, of the 1972 Montana Constitution.

        I disagree with the majority's conclusion that the appropriate level of scrutiny of

5 25-2-122(2), MCA, as it is applied to the parties in this case, is the rational basis test.
        In cases brought by railroad workers pursuant to the Federal Employers' Liability Act,

45 U.S.C. $5 51-60, choice of venue for the injured worker has unique significance, which

in the past has been equated with access to the courts guaranteed by Article 11, Section 16,

of the Montana Constitution. Any erosion of the right, therefore, necessarily implicates a

fundamental right and, when done in discriminatory fashion as was done by tj 25-2-122(2),

MCA, requires our strict scrutiny.

        The fundamental nature of an injured railroad worker's right to choose venue is

evident from the FELA itself. Section 5 of that Act, codified at 45 U.S.C.       5 56, provides
that:

               Under this chapter an action may be brought in a district court of the
        United States, in the district of the residence of the defendant, or in which the
        cause of action arose, or in which the defendant shall be doing business at the
        time of commencing such action. The jurisdiction of the courts of the United
        States under this chapter shall be concurrent with that of the courts of the
        several States.

(Emphasis added.)
       In Akerly v. New York Central Railroad Co. (6th Cir. 1948), 168 F.2d 8 12, the U.S.

Court of Appeals for the Sixth Circuit explained that the venue provision in the Federal

Employers' Liability Act was more than procedural. That court concluded that it was a

substantive part of those rights guaranteed to injured railroad workers pursuant to the FELA.

       In Akerly, the railroad sought to limit the injured worker's choice of venue as a

condition to advancing "living expenses" while he was out of work as a result of a

work-related injury. In holding that such a contract provision was void, the Court of Appeals

pointed out that the venue provision found at   5 56 was first enacted in 1910 because "the
general venue provisions worked injustices to employees." Akerly, 168 F.2d at 814. That

court provided the following explanation of its conclusion that the rights provided for in the

FELA venue statute are substantive and not merely procedural:

       Section 6 creates new and important rights in the employee and it created
       corresponding liabilities against the employer. . . . In fact this new venue
       statute creates, within the ordinary meaning of the word, liability against the
       employer in states and districts, where he could not have been sued prior to the
       amendment. The paragraph is broad and sweeping, and as pointed out in
       Duncan v. Thompson, 3 15 U.S. 1. 62 S.Ct. 422, 424, 86 L.Ed. 575, the
       adoption of the section in its present form "argues persuasively that Congress
       wanted Section 5 to have the full effect that its comprehensive phraseology
       implies." As specifically held in the cited case, tj 5 is applicable to existing
       causes of action.

              We think that the inclusion of this section in the Employers' Liability
      Act, with its creation of new obligations against the employer, makes the
      venue provision an inherent part of the employer's liability. An attempt to
      limit it by contract is an attempt to exempt the railroad from liability, and is
      void.

Akerly, 168 F.2d at 814-15.
       The substantial nature of the right provided for by the FELA's venue provision was

acknowledged by the U.S. Supreme Court in Boyd v. Grand Trunk Western Railroad Co.

(1949), 338 U.S. 263.

       This Court has, since 1979, acknowledged that any effort to limit a railroad worker's

choice of venue in a FELA action beyond those limitations found at 5 56 has constitutional

implications pursuant to Article 11, Section 16. See LaBella v. Burlington Northern, Inc.

(1979), 182 Mont. 202,595 P.2d 1184.

       In State ex rel. Burlington Northern Railroad Co. v. District Court (1995), 270 Mont.

146, 891 P.2d 493, we summarized our holding in LaBella as follows:

       We first pointed out that this state's public policy, dictated by Article 11,
       Section 16, of our Constitution, requires that our courts "shall be open to every
       person, and speedy remedy afforded for every injury to person, property or
       character." We noted that constitutional right was unrestricted by reference to
       citizenship or residence and that any such qualification could not pass muster
       under the Privileges and Immunities Clause of Article IV, Section 2 of the
       Unites States Constitution. LaBella, 595 P.2d at 1187. We then cited
       fj 49-1-204, MCA, which mandates equality of rights and duties for United
       States citizens who are not citizens of Montana; and we found "highly
       persuasive" the policy favoring the injured railroad worker's choice of forum.

State ex rel. BN, 270 Mont. at 151, 89 1 P.2d at 497

       In State ex rel. BN, we reaffirmed that in the unique case of injured railroad workers,

because of the strong national policy favoring choice of venue in which to bring FELA

actions, in combination with our constitutional obligation to assure that our courts are open

to every person, an injured railroad worker's choice of venue could not be limited by the

doctrine of forum non conveniens. We held that:
               The clear reauirements of Article 11, Section 16 of Montana's
       Constitution and of fj 49-1-204, MCA, and the important policy reasons
       supporting a liberal construction of the Act in favor of the injured worker and
       the FELA plaintiffs choice of forum simply cannot be denigrated to a
       secondary position because of the impact--whether theoretical or real--of the
       filing of these types of cases on the dockets of local Montana courts. When
       balanced against the mandates of our Constitution, our statute and the policies
       underpinning the Act which are adopted and expressed in our own cases
       spanning three and one-half decades, applyingforum non conveniens to FELA
       actions because of docket overcrowding is simply non sequitur. That we
       opened such a door in the first place and then allowed it to remain open for so
       long, speaks not so much to the merits of the argument, as it does to our simple
       failure to concede its obvious infirmity.

               We again hold, as we clearly did in LaBella, that a district court in this
       state may not dismiss a FELA action because it deems itself to be an
       inconvenient forum. We again hold, as we clearly did in Haug [v. Burlington
       Northern (1989), 236 Mont. 368, 770 P.2d 5171, that a district court in this
       State is not empowered to change the place of trial of a FELA action based on
       the doctrine of forum non conveniens, whether the common law variety or,
       arguendo, as codified in 9 25-2-201, MCA. Moreover, in light of the mandates
       of Article 11. Section 16 of our Constitution, 49-1-204, MCA, and the
       policies underpinning the Act which are adopted and expressed in our own
       cases spanning more than thirty years, we will not, henceforth, reexamine this
       issue on the basis of the numbers of out-of-state FELA cases filed in
       Montana's district courts.

State ex rel. BN, 270 Mont. at 156, 891 P.2d at 499-500 (emphasis added).

       Based on the historical significance of an injured railroad worker's right to choose

venue, except as limited by 45 U.S.C. fj 56, based on the substantive nature of that right

pursuant to federal case law, and based on our own long history of repeated conclusions that

    erosion of that right also diminishes the right of access to Montana's courts guaranteed

by Article 11, Section 16, of the Bill of Rights in Montana's Constitution, I conclude that an

injured railroad worker's choice of venue is a fundamental right; that limitation of that right
based on statutory classifications requires strict scrutiny and proof of a compelling state

interest; and that no compelling state interest, nor any interest of any kind, has been

established by the proof in this case for eroding an injured railroad worker's right to choose

the venue in which he or she brings a FELA claim.

       Therefore, while I concur in the majority's conclusion that 5 25-2-122, MCA, violates

the Equal Protection Clause of Montana's Constitution, I disagree with the process by which

the majority arrived at that conclusion.

       It goes without saying that, for the reasons set forth in this opinion, I disagree with the

conclusions expressed in the dissent. While the dissent sets forth an interesting academic

exercise, it is unfounded in reality and unsupported by the experience of any lawyer who has

litigated cases throughout the state of Montana. I am certain that those lawyers would,

without exception, believe that choice of venue is the most significant right involved in the

litigation of a case.

       More important, the significance of an injured railroad worker's choice of venue in

litigation against his or her employer is recognized by eighty-seven years of federal

legislation and case law, and more than thirty years of this Court's precedent. To argue, as

the dissent does, that "the law assumes that anyone or all four of the venues will provide a

forum where the laws will be equally administered" ignores not only reality, but the

legislative history of 45 U.S.C. 5 56, the substance of 5 56, and the federal and state case law

which has applied fj 56. It ignores the fact that some venues are economically impacted by
the railroad industries and justifiably perceived as unfavorable locations for the enforcement

of injured railroad workers' rights. It ignores the fact that some venues throughout Montana

have been historically considered hostile to the rights of employees in general. Finally, it

ignores the fact, which should be known to anyone who has reviewed the hundreds of

appeals that come to this Court every year, that not all district judges are equal. Some are

more knowledgeable than others about the complex and unique features of FELA law. Some

are more committed than others to the strict enforcement of the rights guaranteed by that law.

All of these factors were taken into consideration by Congress when injured railroad workers

were, by statute, given greater flexibility than other litigants to choose the venue most

favorable for the prosecution of their claims.

       In conclusion, the law does not, and never has assumed that some arbitrary number

of limited venue options will afford even-handed administration of justice to injured railroad

workers. The dissent's conclusions to the contrary are unfounded in either fact or law.




Justice William E. Hunt, Sr., joins in the foregoing concurring opinion.




                                                         Justice
Justice W. William Leaphart, dissenting.


       I dissent. The Court holds that since a party who is injured by a nonresident person

has a choice of fifty-six different venues in the state of Montana, 5 25-2- 118(2), MCA, a

person injured by an out-of-state corporation and whose venue choices are limited to fewer

than all fifty-six counties is being denied equal protection of the law. Thus, 5 25-2-122(2),

MCA, which limits venue in suits against nonresident corporations to four counties is

unconstitutional.

       Unless there is some evidence that none of the four venues provided for in      5 25-2-
122(2), MCA, will administer the law in a just and equal manner, we must assume that there

is even handed administration ofjustice throughout the district courts in the state of Montana.

Given that assumption, the fact that some other litigant may have the ability to choose

between five, ten or fifty-six venues which will also administer the law in a fair and just

manner makes no difference.

       Cincinnati Street Ry. Co. v. Snell(1904), 193 U.S. 30,36,24 S.Ct. 3 19,321,48 L.Ed.

604,607, involved a statute which allowed a party litigating with a corporation the right to

change the venue out of the county in which the corporation kept its principal place of

business. The railway company challenged the statute for the reason that it did not afford the

corporate party the same right to change venue. The Court characterized the issue as follows:

       That although the protection of equal laws equally administered has been
       enjoyed, nevertheless there has been a denial of the equal protection of the law
       within the purview of the 14th Amendment, only because the state has allowed
        one person to seek one forum and has not allowed another person, asserted to
        be in the same class, to seek the same forum, although as to both persons the
        law has afforded a forum in which the same and equal laws are applicable and
        administered.

        In rejecting the proposition that if A only has access to one forum where the law is

equally administered, the fact that B has access to more than one forum where the law is

equally administered, means that A has been denied equal protection of the laws, the court

held:

        But it is fundamental rights which the 14th Amendment safeguards, and not
        the mere forum which a state may see proper to designate for the enforcement
        and protection of such rights. Given, therefore, a condition where fundamental
        rights are equally protected and preserved, it is impossible to say that the rights
        which are thus protected and preserved have been denied because the state has
        deemed best to provide for a trial in one forum or another. It is not, under any
        view. the mere tribunal into which a person is authorized to proceed by a state
        which determines whether the equal protection of the law has been afforded,
        but whether in the tribunals which the state has provided equal laws prevail.

        It follows that the mere direction of the state law that a cause, under given
        circumstances, shall be tried in one forum instead of another, or may be
        transferred when brought from one forum to another, can have no tendency to
        violate the guaranty of the equal protection of the laws where in both the
        forums equality of law governs and equality of administration prevails.

Cincinnati Street Ry. Co., 193 U.S. at 36-37 (emphasis added).

        In Bain Peanut Co. v. Pinson (1931), 282 U.S. 499, 51 S.Ct. 228, 75 L.Ed. 482, a

corporation filed an equal protection challenge to a venue statute which allowed plaintiffs

to sue a private corporation in the county where an action arose. The statute, however,

limited suit against unincorporated individuals to the county in which they were domiciled.

In upholding the statute, the Court stated:
       In deciding whether a corporation is denied the equal protection of the laws
       when its creator establishes a more extensive venue for actions against it than
       are [sic] fixed for private citizens we have to consider not a geometrical
       equation between a corporation and a man but whether the difference does
       iniustice to the class ~enerally,even though it bear hard in some particular
       case, which is not alleged or proved here.

Bain Peanut Co., 282 U.S. at 501 (emphasis added) (citations omitted).

       The Court looked to its decision in Cincinnati Street Ry. Co. for the answer.

       The question seems to be answered by Cincinnati Street Ry. Co. v. Snell,
       [citation omitted] which lays down that if the protection of fundamental rights
       by eaual laws equally administered is enjoyed, the Constitution does not forbid
       allowing one person to seek a forum from which another in the same class is
       excluded.

Bain Peanut Co., 282 U.S. at 501 (emphasis added) .

       Likewise, in the present case, we cannot address the equal protection question by

merely looking at the geometrical equation (plaintiffs hurt by out-of-state corporations get

four venue choices while plaintiffs hurt by out-of-state individuals get fifty-six venue

choices) and concluding, a priori, there must be a denial of equal protection. Rather, we

must determine whether the difference, in fact, "does an injustice."

       The United States Supreme Court has held that a person challenging a statute on equal

protection grounds must show a "discrimination against them of some substance." American

Party of Texas v. White (1974), 415 U.S. 767,781, 94 S.Ct. 1296, 1306, 39 L.Ed.2d 744,

760. " 'Statutes create many classifications which do not deny equal protection; it is only

"invidious discrimination" which offends the Constitution.' " American Partv of Texas, 415

U.S. at 781 (citing Ferguson v. Skrupa (1963), 372 U.S. 726,732, 83 S.Ct. 1028, 1032, 10
L.Ed.2d 93, 98). "The prohibition of the Equal Protection Clause goes no further than the

invidious discrimination." Williamson v. Lee Optical of Oklahoma (1955), 348 U.S. 483,



       Additionally, as the United States Supreme Court recognized in American Motorists

Ins. Co. v. Starnes (1976), 425 U.S. 637,96 S.Ct. 1800,48 L.Ed.2d 263,

       We are not confined to the language of the statute under challenge in
       determining whether that statute has any discriminatory effect. Just as a
       statute nondiscriminatory on its face may be grossly discriminatory in its
       operation, [citations omitted] so may a statute discriminatory on its face be
       nondiscriminatory in its operation. There being no discriminatory effect
       achieved by the aspects of the Texas venue provisions calling for
       establishment of a cause of action, we have no difficulty in concluding that
       appellant's equal protection challenge to Exception 27 must be rejected.

American Motorists Ins. Co., 425 U.S. at 645 (emphasis added).

       Although   5   25-2-122(2), MCA, may appear discriminatory on its face when one

contrasts fifty-six venue choices with four venue choices, the real question is not one of

numerical discrepancy. Rather, the inquiry is whether that discrepancy creates a substantive,

invidious discrimination.

       In my view, the venue statute is discriminatory in its operation only if it can be shown

that it does an injustice to plaintiffs injured by out-of-state corporations by (1) denying them

any choice in selecting venue, or (2) denying such plaintiffs a venue in which they can enjoy

equal laws equally administered. Section 25-2-122(2), MCA, does neither. It allows a

plaintiff injured by an out-of-state corporation to file suit in any one of four venues: the

county where the tort was committed; the county in which the plaintiff resides, the county
in which the corporation's resident agent is located, or the first judicial district.

       In reaching its conclusion, the Court presents a hypothetical situation where two

Montana resident drivers were hurt in separate car accidents both involving out-of-state

defendants. Both residents would be able to file tort claims in state court. If one resident

were injured by an out-of-state individual, that resident could sue in any county in Montana.

However, if the other resident were injured by an employee of an out-of-state corporation,

that resident would be restricted to four venue choices. Based upon this analogy, the Court

concludes that 5 25-2- 122(2), MCA, operates unequally on two different classes of people

and thus denies equal protection of the laws. The Court's conclusion, however, is based

entirely upon the numerical discrepancy. The opinion fails to analyze whether that

discrepancy actually creates a substantive discrimination, i.e., whether it works an injustice.

       The Court assumes that a plaintiff injured by an out-of-state corporation, will, despite

four venue choices, somehow be denied a forum where equal laws will be equally

administered. There is no basis for making such an assumption. If a party can demonstrate

that there is reason to believe that an impartial trial cannot be had in a venue, or that the

convenience of witnesses and the ends of justice would be promoted by a change of venue,

then the Court "must" change the place of trial. Section 25-2-201, MCA. Absent such a

showing, the law assumes that any one or all four of the venues will provide a forum where

the laws will be equally administered.

       If, as the Court assumes, a limitation of four venue choices works an injustice on a
plaintiff, then what does that say about $25-2-122(1), MCA, which limits Montana residents

who sue Montana corporations to a mere two venue choices: the defendant's residence or the

place where the tort occurred?

       The Court has fallen prey to a facile argument that if A has more choices than B, B

has necessarily been denied equal protection. We should not reach such a conclusion absent

a showing that B does not still enjoy equal laws equally administered. If B has four venue

choices and can force a change of venue if there is reason to believe an impartial trial cannot

be had, then the law is not working an injustice on B and there is no denial of equal

protection.

       The majority puts much store in the special status of FELA plaintiffs. Indeed, this

Court has recognized that FELA plaintiffs have a right of choice in selecting a venue. Haug

v. Burlington Northern R. (1989), 236 Mont. 368, 374, 770 P.2d 517, 520. However, we

have never stated that FELA plaintiffs have a right to a certain number of venue choices or

that the legislature cannot limit the choices to a number less than fifty-six. It cannot be said

that $ 25-2- 122(2), MCA, denies the FELA plaintiff a choice in venue. Rather it gives the

plaintiff four choices.    The only question is whether the fact that plaintiffs suing

noncorporate, nonresident defendants have more venue choices, means that the FELA

plaintiff is being denied equal protection. I think not. If the FELA plaintiff has four choices

and each of the four venue choices is presumed to afford even handed administration of

justice, there is no substantive, invidious discrimination. I would hold that $ 25-2-122(2),
MCA, does not deny the equal protection of the laws.




                                                        Justice -   -   1


Justice Karla M. Gray joins in the foregoing dissent.
