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Heiat v. Eastern Montana College3/4/1996
lity opinion with regard to overruling Kenyon. A majority of this Court is opposed to overruling Kenyon, yet apparently this Court is being forced down an entirely new path by virtue of three of its members stating that they can overrule a case with less than a majority vote.
I recognize that, as a practical matter, it makes little difference in this case whether Kenyon is merely clarified or overruled since either would produce the same result. Here, however, it is the plurality's attitude toward precedent and stare decisis — and where that attitude will lead us in the future — which is important. Can three votes really overrule a case? In a four to three decision, will the dissenters "overrule" cases relied on by the majority? Are such approaches sufficiently cognizant of the importance of stability, continuity and clarity in the law?
Applying Kenyon, I would conclude that Nafisseh met her burden in this case. Accordingly, I would reverse the District Court.
I have resisted the temptation to count my own special concurrence as yet another vote for the opinion.
JUSTICE LEAPHART specially concurring.
In pointing out that there are only three votes to reverse Kenyon, Justice Gray's special concurrence characterizes the present decision as a "plurality" decision. That is not an accurate characterization of our holding in this case. Including the special concurrences of Justice Nelson and Justice Gray,
there are five votes for the new test adopted in the present case. Thus, as to the adoption of that test, there is clearly a majority. Those same five Justices, however, disagree as to what effect the new test has on the test previously enunciated in Kenyon. No more than three Justices were able to agree on any one characterization. That is, has Kenyon been overruled, clarified or modified? As is apparent from the opinion, three of the Justices did agree that, since the Court had changed Kenyon both procedurally and substantively, Kenyon was, in effect, overruled. The disagreement as to how the result in this opinion affects Kenyon, does not alter the fact that, in the final analysis, a majority of the Court has adopted a new test which replaces the Kenyon test.
JUSTICE ERDMANN dissenting.
I respectfully dissent. I am not convinced that the new standard adopted by the majority for summary judgment motions in discrimination cases is necessary, nor do I believe it is necessary to overrule our recent decision in Kenyon v. Stillwater County (1992), 254 Mont. 142, 835 P.2d 742. I would continue to utilize the standard established in McDonnell Douglas v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, as applied in the summary judgment context in Foster v. Arcata Associates, Inc. (9th Cir. 1985), 772 F.2d 1453, which was adopted by this Court in Kenyon. Under either the traditional standard or the new standard adopted by the majority, however, I would affirm the District Court.
As recognized by the majority, this Court has adopted the test articulated in McDonnell Douglas and further developed in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207, for analyzing discrimination cases. See Kenyon, 835 P.2d 742; Taliaferro v. State (1988), 235 Mont. 23, 764 P.2d 860; European Health Spa v. Human Rights Comm'n (1984), 212 Mont. 319, 687 P.2d 1029; Martinez v. Yellowstone County Welfare Dept. (1981), 192 Mont. 42, 626 P.2d 242.
In McDonnell Douglas, the U.S. Supreme Court set forth the shifting burdens and order of proof in discrimination cases. The plaintiff must first establish a prima facie case of discriminat
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