concurring in part and dissenting in part.
I concur with the result of the majority opinion. Based upon this Court’s decision in Crowell v. School Dist. No. 7 of Gallatin County, [247 Mont. 38,] 805 P.2d 522, 48 St.Rep. 81 [10 Ed.Law 8,] (Mont. 1991), hat this case should be remanded to the District Court for *330further proceedings consistent with that opinion. However, I disagree with the reasoning of the Crowell decision. It is clear to me that the legislature did not authorize the waiver of immunity when it authorized local governments to purchase insurance. It authorized local governments to purchase insurance because it never did create the kind of local governmental immunity that has been found to exist by this Court.
I also concur in that part of the majority’s opinion which remands this case to the District Court for proper consideration of the plaintiffs’ claims under 42 U.S.C. § 1983.
I dissent from that part of the majority’s opinion which holds that § 2-9-111, MCA, clearly and unambiguously provides immunity to the Missoula School District and its employees for the acts complained of by the plaintiffs.
To understand just how far we have come with this Court’s unique brand of judicial activism, it is necessary to put this holding in the proper perspective. The defendant, R.B., is accused of raping and sodomizing a four-year-old special education student, and in the process, causing serious physical and emotional injury. In order to immunize the school district and all of its employees, this Court had to conclude that the depraved conduct which is complained of was “action by the legislative body.” I am confident that the members of the Board for the Missoula School District will take no satisfaction in this appalling conclusion.
Section 2-9-111, MCA, is a poorly worded statute which provides different types of immunity to different defendants. Subsection (2) is relatively straightforward and provides that “[a] governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.” (Emphasis added.)
However, subsection (3), which pertains to governmental employees in their individual capacities, sets forth a completely different description of when immunity applies. It states:
“A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.” Section 2-9-111(3), MCA.
In this case, plaintiffs sued both the school district and several of its employees.
It is obvious from any reasonable interpretation of these two sections that liability of individual governmental employees is granted on a much more limited basis than liability for the *331governmental entity itself. If not, it would have been a simple matter for the legislature to provide in subsection (2) that “a governmental entity and its employees are immune from suit from an act or omission of its legislative body, or a member, officer, or agent thereof.” (Emphasis added.) The legislature chose not to do that. Therefore, this Court should not do so.
In his concurring opinion to Crowell, Chief Justice J.A. Turnage correctly points out that:
“ ‘In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.’ Section 1-2-101, MCA. This is the rule of law governing statutory construction, and it is an appropriate and proper rule. There is no place for individual preference or desire to become the rule of law when the Court interprets statutory language.”
I agree with Chief Justice Turnage’s conclusion regarding the proper role of this Court. However, I disagree that this Court has adhered to that rule of statutory construction when interpreting § 2-9-111, MCA. If it did, it could certainly not have concluded that the sodomization and rape of a four-year-old special education student by a teacher’s aide was “the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.”
The reason we are at the point we have reached with today’s decision is that this Court has ignored the statutory admonishment found in § 1-2-101, MCA, and substituted its collective personal preference for a literal application of the statutory language found in § 2-9-111(3), MCA. The misapplication of that statute will result in countless hardships to innocent victims throughout the State of Montana. I prefer not to be part of blind adherence to precedent which is both legally incorrect and morally indefensible.
Furthermore, I dissent from that part of the majority decision which refuses to address the constitutionality of § 2-9-111, MCA, as it has been applied by this Court.
The principal reason for which this Court exists is to enforce the Constitution of the State of Montana. When the legislature, through its statutes (as they are written or as this Court interprets them), violates the Constitution, this Court owes Montana’s citizens its judgment to that effect.
Article II, § 4, of the Montana Constitution provides in part that “no person shall be denied the equal protection of the laws.” That *332provision of our state constitution is similar to rights provided for in the 14th Amendment of the United States Constitution. The equal protection clauses of both constitutions go to the very heart of the reason for which this Court exists. They guarantee that all Montana citizens shall be treated fairly.
There is no greater example in the recent history of this Court of unfair treatment of Montana citizens than in this Court’s recent decisions on the issue of local governmental liability. Those decisions have been inconsistent and irrational. And yet, they deny Montana citizens the most fundamental rights that any citizen in a free country possesses. They deny Montanans the right to use their courts to seek redress from a government which injures them through irresponsible, negligent, or even intentional and unlawful conduct.
In Meech v. Hillhaven, 238 Mont. 21, 776 P.2d 488 (1989), this Court held that there is no fundamental right in Montana to full legal redress for injuries or damages caused by the unlawful or negligent act of another. Therefore, according to that decision, classifications which give different rights to different classes of tort victims need not pass the strict scrutiny test and need not be justified by a compelling governmental interest. The state need only establish that the disparate treatment of similar claims is rationally related to a state interest. While I disagree with this Court’s decision in Meech, I am satisfied that the patchwork of arbitrary classifications created by this Court’s decisions on local governmental liability cannot meet the most liberal rational basis analysis.
According to this Court’s decisions, if a person is seriously injured due to the negligent maintenance and signing of roads in Fallon County, that person has no recourse against local government. Miller v. Fallon County, 240 Mont. 241, 783 P.2d 419 (1989). However, if that same person sustains the same injuries under the exact same circumstances in the City of Billings, he may be fully compensated. Irion v. Peterson, [247 Mont. 459,] 807 P.2d 714, 48 St.Rep. 258 [10 Ed.Law 83,] (Mont. 1991). What is the rational basis for such a distinction?
Under this Court’s application of the law, if a local citizen is paralyzed because a county road crew digs a ten foot ditch across the road and leaves it unmarked at night, that victim is without any remedy. Miller. However, if a member of the same road crew gets into a county truck, rims a red light and strikes another local citizen, that citizen can be fully compensated, no matter how minor his or her injury. § 2-9-111(4), MCA. What is the rational basis for such a distinction?
*333Under this Court’s series of decisions, if a local citizen is injured because he or she slips on the steps at the University of Montana, that person may be fully compensated. Mitchell v. University of Montana, 240 Mont. 261, 783 P.2d 1337, [8 Ed.Law 147,] (1989). However, if that same person is injured because he slips and falls on the steps of the local junior high school, he is without a remedy. State ex rel. Ecceleston v. District Court, 240 Mont. 44, [8 Ed.Law 146g,] 783 P.2d 363 (1989). What is the rational basis for such a distinction?
Under this Court’s decisions, if a Montana citizen is injured due to the negligence or illegal conduct of a member of the park board which is appointed by the county commission in Yellowstone County, that person may be fully compensated. Koch v. Yellowstone County, 243 Mont. 447, 795 P.2d 454, (1990). However, if that same person is injured due to the negligence of the road foreman hired by the commissioners for Yellowstone County, that person is without a remedy. Miller.
Under this Court’s recent decisions, if a citizen of Montana is injured due to the negligence of an employee of the Town of Whitefish, and if that town is responsible enough to purchase liability insurance for the protection of its citizens, then that injured victim can be fully compensated for his injuries. Crowell. However, if that person’s spouse is injured by the same conduct and under the same circumstances, by public officials in Kalispell, and if that town is irresponsible enough to go without liability insurance, then that person is entitled to no compensation, no matter how disabling or catastrophic his injuries. What is the rational basis for any of these distinctions?
If this Court can conceive for a rational basis for the arbitrary classifications of tort victims that have been established by its series of decisions set forth above, then it has rendered the important constitutional guarantee of “equal protection” meaningless, and no one in Montana is protected from the arbitrary whims that create discrimination among its citizens.
If the equal protection clause is so meaningless, then the legislature can decide that doctors can be sued, but that lawyers are immune; that plumbers can be sued, but that carpenters are immune; and that women can be sued, but that men are immune. The ultimate test will be who has the most influential lobby at the legislature.
To avoid such situations is exactly why we have a constitution and a judicial branch of government. However, the majority has abdicated *334its responsibility to address this critical issue based on speculation that plaintiffs were not that serious about it in the first place.
On appeal, the plaintiffs have clearly raised the fact that they, as victims of abuse in a public school, are being treated differently than if they had suffered the same abuse in a private school. There is no question about the fact that if a four-year-old preschool student was sodomized and raped in a private school, she and her family would be entitled to reasonable compensation for the terrible physical and emotional injuries that she had sustained. On appeal, the plaintiffs have asked this Court to justify that arbitrary class distinction. This Court obviously cannot do so, and so, has, in effect, told the plaintiffs, “don’t bother us with constitutional technicalities.”
It is ironic that during the same year that Montana became the 48th state to honor slain civil rights symbol, Martin Luther King, Jr., this Court refuses to recognize the civil rights of its private citizens when in conflict with local bureaucrats and their agents.
I would accept this Court’s obligation to decide the constitutionality of § 2-9-111, MCA, as it has been applied, and I would find that, as it has been applied, it violates the equal protection clause of the Montana and federal Constitutions.
For these reasons I dissent from the majority opinion.