No. 87-472
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
WILLIAM KOPPEN and KIMBERLY KOPPEN,
Individually; and WILLIAM KOPPEN, as
Personal Representative of the Estate
of CALLY JANE KOPPEN, Deceased; and
ALAN R. BUCK and SUSAN K. BUCK,
Individually; and ALAN R. BUCK, as
Personal Representative of the Estate
of MELISA SUE BUCK, Deceased,
Plaintiffs and Appellants,
BOARD OF MEDICAL EXAMINERS and STATE
OF MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Trieweiler Law Firm; Terry N. Trieweiler argued,
Whitefish, Montana
For Respondent :
Harrison, Loendorf & Poston; John Poston and Stephen
McCue argued, Helena, Montana
John H. Maynard, Dept. of Administration, Helena,
Montana
Submitted: April 281 1988
Decided: August 11, 1988
Filed : bU 6 2 1
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Plaintiffs William and Kimberly Koppen (Koppens) and
Alan and Susan Buck (Bucks) appeal from the order of the
District Court of the Eleventh Judicial District, Flathead
County, dismissing their complaint against defendants Board
of Medical Examiners (Board) and State of Montana. We affirm.
The appellants present one issue on appeal:
"Does Section 2-9-112, M.C.A., which provides fox
judicial immunity, extend to executive agencies, such as the
Montana Board of Medical Examiners, for negligent failure to
perform their statutory duties?"
Plaintiffs Kimberly Koppen and Susan Buck both became
pregnant during the summer of 1983 and contracted with Dr.
David V. Kauffman for assistance with the delivery of their
babies, expected during March of 1984. The baby born to the
Koppens died after a short period of survival. The baby born
to the Bucks died at the age of 84 months.
The Koppens and the Bucks filed suit against the Board
and the State on February 18, 1987, alleging the Board was
negligent in failing to limit or revoke Dr. Kaufman's license
to practice medicine, or otherwise prevent him from
practicing obstetrics. According to the complaint, the Board
had received complaints about Dr. Kaufman's fitness to
practice medicine but failed to respond to them. The
complaint characterized this as a failure by the Board to
discharge its duty under 5 37-3-202, MCA, to ensure that all
physicians licensed in Montana maintain standards of conduct
in the greatest public interest. The complaint alleged that
because of the Board's failure, Dr. Kauffman's treatment was
below the level of care and skill required of physicians in
Montana, which caused avoidable complications in the two
pregnancies and resulted in the deaths of both infants.
On April 1, 1987, the Board and the State filed a motion
to dismiss based on the contention that the Board performs a
quasi-judicial function, thereby entitling both defendants to
absolute immunity from suit. The District Court granted the
motion by its order of September 28, 1987, and thereafter
entered judgment in favor of the Board and the State.
The rationale in the District Court's Order began by
quoting portions of 5 2-9-112, MCA:
(1) The State and other governmental units are
immune from suit for acts or omissions of the
judiciary.
(2) ...
(3) The Judiciary includes those courts established
in accordance with Article VII of the Constitut-ion
of the State of Montana.
The court pointed out that the term "includes" in
subparagraph 3 of the statute is not a "limiting term."
According to the court, if the legislature had wanted to
limit the immunity, it could have drafted the provision to
mean specifically only those courts established under Article
VII. Because the word used was "includes," the court
determined that the legislature's grant of immunity extended
to admini-strative agencies exercising "quasi-judicial"
authority.
The court cited Butz v. Economou, 438 U.S. 478, 98 S.Ct.
2894 (1978), as stating the correct rationale for
quasi-judicial immunity. In Rutz , the TJ. S. Supreme Court
began its analysis of quasi-judicial immunity by stating the
rationale for judicial immunity:
[ C l ontroversies sufficiently intense to erupt in
litigation are not easily capped by a judicial
decree. The loser in one forum will frequently seek
another, charging the participants in the first
with unconstitutional animus. [citation omitted.]
Absolute immunity is thus necessary to assure that
judges, advocates, and witnesses can perform their
respective functions without harassment or
intimidation.
Butz, 98 S.Ct. at 2913. The court then examined the nature of
administrative proceedings and the controversies involved,
and concluded:
We think that adjudication within a federal
administrative agency shares enough of the
characteristics of the judicial process that those
who participate in such adjudication should also be
immune from suits for damages.
Butz, 98 S.Ct. at 2914. In this case, the District Court
applied the rule in Butz to the Board, a state administrative
agency, and concluded that the Board's adjudicatory function
would warrant quasi-judicial immunity, which the court found
to be afforded by 5 2-9-112, MCA.
The appellants argue that the District Court's reading
of S 2-9-112, MCA, is too liberal. Appellants' brief outlines
general rules of statutory construction stating that any
statute in derogation of rights otherwise guaranteed by a
constitution must be strictly construed. The right involved
in this case, according to appellants, is the right to sue
state government entities in tort, whi.ch they assert is
conferred by Article 11, Section 18 of the Montana
Constitution:
The state, counties, cities, towns, and all other
local governmental entities, shall have no immunity
from suit for injury to a person or property,
except as may be specifically provided by law by a
2/3 vote of each house of the legislature.
Appellants argue that the grant of judicial immunity in §
2-9-112, MCA, is in derogation of this right, and must
therefore be construed strictly. The brief notes that the
Board is an executive agency created pursuant to Art. VI of
the constitution rather than Art. VII, which in appellants'
view places the Board outside the scope of the judicial
immunity found in § 2-9-112, MCA. The conclusion drawn from
this by appellants is that they have the right to sue the
Board and the State for negligence, and the District Court
was in error when it dismissed their suit.
The decision of the District Court was rendered on a
motion to dismiss. The judge sat without a jury, no testimony
was taken and the facts are relatively uncontested. In cases
such as this, our scope of review is much broader, and we are
free to make our own examination of the entire case and make
a determination in accordance with our findings. Shimsky v.
Valley Credit Union (1984), 208 Mont. 186, 189-90, 676 P.2d
1308, 1310. However, we will affirm the result reached by the
District Court if it is correct, even if the reasons given
for that result are incorrect. Shimsky, 676 P.2d at 1310.
The District Court was correct in concluding that the
Board is entitled to quasi-judicial immunity from suit.
However, we do not need to read § 2-9-112, MCA, as providing
for quasi-judicial immunity. The Board's quasi-judicial
immunity is derived from the common law, which we hold to be
controlling here.
Article 11, Section 18 of the Montana Constitution
abolished sovereign immunity in Montana. The Bill of Rights
Committee of the 1972 Constitutional Convention stated in its
Comments accompanying the proposed text of Section 18 that
its purpose was to abolish "the archaic doctrine of sovereign
immunity." 2 Mt. Leg. Council, Montana Constitutional
Convention, 1971-72, 637. In reporting Section 18 to the full
convention for approval, Delegate Murray of the Bill of
Rights Committee stated, "We feel that the doctrine of
sovereign immunity, which we are attempting to do away with
by this particular provision, really means that the king can
do whatever he wants but he doesn't have to pay for it; and
we'd like to do away with that doctrine." 5 Mt. Leg. Council,
Montana Constitutional Convention, 1971-72, 1760. This Court
duly recognized the demise of sovereign immunity when the
question first came before us in No11 v. City of Bozeman
(1975), 166 Mont. 504, 534 P.2d 880.
However, sovereign immunity is not at issue here. We are
instead dealing with the doctrine of quasi-judicial immunity.
As we have previously held, there were and are immunities
separate and distinct from sovereign immunity, unaffected by
the language of Art. 11, Sec. 18. As a particularly relevant
example, in State ex rel. Dept. of Justice v. District Court
(1977), 172 Mont. 88, 560 P.2d 1328, and more recently in
Ronek v. Gallatin County (Mont. 1987), 740 P.2d 1115, 44
St.Rep. 1275, this Court held that Art. 11, Sec. 18 did not
abolish the common-law doctrine of prosecutorial immunity.
As with prosecutorial immunity, quasi-judicial immunity
is not a subject of Montana statutory law. Section 1-1-108,
MCA, provides where the law is not declared by statute, the
common law shall be the rule of a decision. The common law
rule of quasi-judicial immunity was reviewed by the U.S.
Supreme Court in the Butz decision, which in turn was cited
by the District Court. The opinion in Butz squarely addressed
the issue raised by appellants that executive officials or
agencies are not judicial bodies and should not be immunized
as such. Expanding on its statement quoted above that
administrative adjudications have enough in common with
judicial process to warrant immunity, the U.S. Supreme Court
said,
Judges have absolute immunity not because of their
particular location within the Government but
because of the special nature of their
responsibilities. This point is underlined by the
fact that prosecutors--themselves members of the
Executive Branch--are also absolutely immune.
We also believe that agency officials performing
certain functions analogous to those of a
prosecutor should be able to claim absolute
immunity with respect to such acts. The decision to
initiate administrative proceedings against an
individual or corporation is very much like the
prosecutor's decision to initiate or move forward
with a criminal prosecution.
The discretion which executive officials exercise
with respect to the initiation of administrative
proceedings might be distorted if their immunity
from damages arising from that decision was less
than complete.
Butz, 98 S.Ct. at 2913, 2915. The Butz court thus
characterized quasi-judicial immunity as the logical
descendant of prosecutorial immunity, which this Court
recognized in Dept. - Justice and Ronek. Both are founded
of
upon the nature of the functions carried out by agencies or
officials. See Ronek, 740 P.2d at 1116.
The discretion vested in the Board to weigh the
information relative to Dr. Kauffman rendered it a
quasi-judicial body. This is also evident from the statutes
dictating the procedures to be followed. The Board cannot
revoke or suspend a license to practice medicine without
giving notice and opportunity for hearing, a hearing at which
the doctor concerned may be represented by counsel and offer
evidence. Section 37-3-323, MCA. Such a hearing is governed
by the Montana Administrative Procedure Act, and the decision
reached is subject to judicial review. Sections 2-4-702 and
2-4-631, MCA. The task performed by the Board thus comes
within the statutory definition of "quasi-judicial function"
found at B 2-15-102(10), MCA.
The action or inaction by the Board under attack in this
case is its decision not to strip Dr. Kauffman of his license
when faced with complaints concerning his professional
conduct. The Board's decision whether to initiate
administrative proceedings against a doctor is analogous to a
prosecutor's decision whether to initiate court proceedings
against an alleged criminal. We concur with the reasoning in
Butz that the Board's discretion might be distorted if it is
not immune from suit for damages arising from such a
decision. We hold, therefore, that in the exercise of its
quasi-judicial authority, the Board is entitled to the
absolute immunity afforded executive officials under the rule
in the Butz decision. We also hold that the quasi-judicial
immunity afforded the Board must encompass the State. The
Board's discretion would be equally subject to distortion by
considerations of possible litigation against the State
arising from its actions. See Ronek, 740 P.2d at 1116-17;
Dept. of Justice, 560 P.2d at 1330.
The opinions in Ronek, Dept. Justice and Butz stand
for the proposition that entities called upon to function
judicially should be immunized in order to facilitate the
proper execution of their duties. However, the basis for
these decisions, as discussed above, is the common law.
We affirm the decision of the District Court.
We Concur:
Chief Justice
Justices
Mr. Justice John C. Sheehy, concurring in part and dissenting
in part:
I concur with the result in this case. The complaint in
this case should have been dismissed by the District Court,
not for the reasons utilized by the District Court in
assuming that quasi judicial functions of state boards were
encompassed in statutory judicial immunity, but rather that
the complaint fails to show that the unfortunate deaths and
resulting damages to the plaintiffs were proximately caused
by the State of Montana, through its Board of Medical
Examiners.
The inaction of the Board of Examiners in failing to
lift the license of Dr. Kauffman because of complaints made
about him cannot be equated as a proximate cause with the
direct acts of Dr. Kauffman in attending to the pregnant
mothers, which, as the complaint alleges, were the proximate
cause of their injuries. The theory of plaintiff's counsel
to establish liability on the part of the state has too many
"ifsW--if the Board had initiated proceedings against the
doctor to lift his license to practice medicine; if the
subsequent hearing and proceedings against the doctor
unqualifiedly showed his incompetence to practice; if the
evidence generated under the complaints against him stood up
to show such incompetence; if the proceedings against the
doctor would withstand judicial review. In my view,
proximate cause cannot be attenuated to that extent.
Thus, the District Court properly granted a motion to
dismiss the complaint, but not upon the grounds utilized by
the District Court--that of judicial immunity, but rather
because of lack of proximate cause.
Nonetheless, I cannot agree with the majority of this
Court that the state as an entity is free from liability here
on some ground of official immunity applying to government
agents. I eschew especially the notion that the discretion
of the Board of Examiners would be "equally subject to
distortion by consideration of possible litigation against
the State arising from its actions." That reason for
immunity has been expressly waived by this state in its
constitution and in its statutes.
The first factor to remember here is that the State of
Montana in its governmental capacity is the defendant in this
case, for acting through its governmental arm, the Board of
Medical Examiners. The persons who are members of the Board.
are not defendants. No question is presented in this case
that relates to the personal liability of the Board members
who allegedly failed to act to lift Dr. Kauffman's license.
When there is no risk of personal liability for damages to
the government officials involved, the reason for common law
official liability evaporates. When the reason for a rule
ceases, so should the rule itself. Section 1-3-201, MCA.
It is from the viewpoint of the personal liability of
governmental agents that Butz v. Economou (19781, 438 U.S.
478, at 480, 98 S.Ct. 2894, at 2897, 57 L.Ed.2d 895, at 899,
should be examined. The first sentence of that opinion
begins :
This case concerns the personal immunity of federal
officials in the Executive Branch from claims for
damages arising from their violations of citizens '
constitutional rights ...
The vicarious liability of the United States government
for its agents was not involved in Butz. The federal
government may not be sued to redress the wrongs of its
agents unless the government has specifically waived its
immunity from suit as for example, in the Federal Tort Claims
Act, where it applies.
Moreover, the majority draw more fulsomely on the
opinion in Butz than the opinion itself warrants. In
discussing the functions of agency officials analogous to
those of a prosecutor in deciding whether to initiate
administrative proceedings against an individual, the court
saw little chance of personal liability arising out of
inaction. The Butz opinion states:
The discretion which executive officials exercise
with respect to the initiation of administrative
proceedings might be distorted if their immunity
from damages arising from that decision was less
than complete. (Citing authority.) While there is
not likely to be anyone willing and legally able to
seek damages from the officials if they do - not
authorize the administrative proceeding (refering
to authority), there is serious danger that the
decision to authorize proceedings will provoke a
retaliatory response .. . (Emphasis in original.)
438 U.S. at 515, 98 S.Ct. at 2915, 57 L.Ed.2d at 921-922.
The point is, however, that the Butz court was deciding
the personal liability of the government agents involved.
That is not true in this case where the state alone is the
defendant.
The purpose of common law official immunity is to allow
government officials to be
Free to exercise their duties unembarrassed by the
fear of damage suits in respect to acts done in the
course of those duties--suits which would consume
time and energies which would otherwise be devoted
to governmental service and the threat of which
might appreciably inhibit the fearless, vigorous
and effective administration of policies of
government.
Davis v. Knud-Hansen Memorial Hospital (3d Cir. 1980), 635
F.2d 179, 186, 203 n. 20 quoting from Ferri v. Ackerman
(1979), 444 U.S. 193, 100 S.Ct. 402, 409, 62 ~.Ed.2d 355,
363. The threat of personal liability was enough to lead
Judge Learned Hand to come down in favor of official immunity
in balancing between eliminating the constant dread of
retaliation for their discretionary functions and the rights
of the injured from dishonest official acts. Judge Hand said
that unless immunity was granted, it would "dampen the ardor
of all but the most resolute, or the most irresponsible, in
the unflinching discharge of their duties." Greqoire v.
Biddle (9th Cir. 1949), 177 F.2d 579, 581.
The State of Montana, through its 1972 Constitution, and
by statutes enacted under its Constitution, has removed the
reasons for common law immunity for state governmental
agents. The public policy of Montana is that the state
itself is subject to suit for the torts of its officials and
employees. The statutes enacted by the legislature have
immunized governmental agents from any personal liabilitys
for damages, including court costs and attorney fees, arising
out of the governmental torts. The State Constitution
provides in Art. 11, § 18, as follows:
State subject to suit. The state, counties,
cities, towns and all local governmental entities
shall - -no immunity from suit for injury to a
have
person or property, except as may be specifically
provided by law by a 2/3 vote of each house of the
legislature. (Emphasis added.)
The statutes of this state declare our public policy
that public officers and employees such as the individual
members of the Board of Medical Examiners shall be immunized,
defended and indemnified when civilly sued for their actions
taken within the course and scope of their employment.
Section 2-9-305 (11, MCA. The term "employee" means an
officer or employee, an elected or appointed official and
persons acting on behalf of a governmental entity in any
official capacity. Section 2-9-101 (2), MCA. When such
government officials or employees are acting within the
course and scope of their duties, they may require the state
to defend a noncriminal action against them, may require
indemnification for any money judgment or legal expenses,
including attorney fees and costs, and any recovery against
the governmental entity is a complete bar to any further
action for recovery of damages by claimants against the
officers or employees. Sections 2-9-305 (2), - ( 3 ) , - ( 4 ) , and
- ( 5 1 , MCA.
Thus, under our constitutional and statutory scheme, the
public policy of this state to remove all possibility of
personal damages against governmental officials for their
torts in office serves to eliminate the need for any
application of common law official immunity in the case at
bar. Apparently the plaintiffs recognize this, because they
sue only the State of Montana and not the individual members
of the Board of Examiners in their personal capacities.
Thus, the liability of the state here should be decided on
principles other than cases applying only to personal
liability. Here, the state, by constitution and by statute,
is not immune from suit. The state is liable to persons who
suffer injuries proximately caused by state governmental
torts as a matter of public policy and as a constitutional
right.
It is, therefore, quite illogical for the majority to
hold that the state is exempt from suit in this case because
of the possibility that the Board's discretion would be
subject to distortion by considerations of possible
litigation against the state arising from the actions of the
Board of Medical Examiners. The state, without question, has
accepted that risk in assuming liability, and in subjecting
itself to suit.
State immunity from suit, arising from the alleged torts
of its agents should not be an issue in this case at all.
That issue is removed by the public policy of this state.
The only question we should decide here is whether the
complaint, on well-settled tort rules can survive a motion to
dismiss. As I said earlier, imate cause is missing.
Justice
,
Mr. Justice William E. Hunt, Sr., joins in the foregoing
concurrence and dissent of Mr. Justice John C. Sheehy.
/
Justice