No. 88-19
IN THE SUPREM-ECOURT OF THE STATE OF MONTANA
1988
JAMES NATHAN BIEBER,
Plaintiff and Appellant,
-vs-
BROADWATER COUNTY and WILLIAM DUEDE
as County Commissioner and Individually,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Broadwater,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Reynolds & Motl; David K.W. Wilson, Jr., Helena,
Montana
For Respondent :
Jardine, Stephenson, Blewett & Weaver; Sue Ann Love,
Great Falls, Montana
Submitted on Briefs: May 19, 1988
Decided: July 8, 1988
F i led :
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Plaintiff appeals from a summary judgment of the
District Court, First Judicial District, County of
Broadwater. We affirm.
Appellant Bieber lists the following as issues on
appeal:
1. Does 2-9-11 2 , MCA, grant Broadwater County
immunity for the actions of one of its commissioners in
firing appellant Bieber?
2. Does 5 2-9-lll(3) MCA, grant County Commissioner
Duede immunity for his actions in firing Bieber?
Following is a summary of the pertinent facts of this
case. More facts will be revealed as needed within the body
of the opinion. We wish to note that County Commissioner
Duede has died since this case was submitted to the Court for
appellate review. Since no motion for substitution of his
personal representative has been made pursuant to Rule 37(a),
M.R.App.P., we will assume he has none and will proceed with
rendering this opinion as if Duede were still living. We are
given this authority pursuant to Rule 37(a).
Bieber was hired by Broadwater County as a seasonal
member of the road crew in September, 1983. This position
became full-time in April, 1984. The county road crew
repairs and maintains county roads under the direct
supervisory control of the County Commissioners.
Commissioner Duede became the primary supervisor of the road
crew partly because of his physical proximity to the county
shop. He was primarily responsible for assigning work,
disciplining and hiring and firing of employees. It was
Duede who hired Bieber in 1983. Bieber was apparently
performing satisfactorily until Duede discovered that county
equipment was being damaged by Bieber. On February 28, 1986,
Duede fired Bieber. There is some dispute whether Bieber had
been forwarned that his alleged abuse of county equipment
could cost him his job. Duede did not consult with the other
two commissioners but later told them of his action with
which they both concurred. Bieber now claims that the
commissioners violated their own personnel policy as well as
their contractual obligations and obligation to deal in good
faith.
Bieber filed suit alleging breach of the employment
contract, bad faith and violation of the employment at will
statute. He later added a wrongful discharge count. When
respondents filed a motion for summary judgment on the
grounds that they were immune from suit under 5 2-9-111, MCA,
the court dismissed the action on those grounds. Bieber
appeals from this judgment.
Rieber initially argues that the District Court
incorrectly assessed the meaning of § 2-9-111, MCA, and its
applicability to the Commissioners1 action. He asserts that
the statute represents a narrow exception to the
constitutionally mandated rule of no sovereign immunity and
as such its protection is limited to purely "legislative"
acts and excludes day to day "administrative"
responsibilities such as the firing of a county employee.
The statute reads in pertinent part:
2-9-111. Immunity - - -
from suit for legislative acts
and omissions. (1) As used in this section:
(a) the term "governmental entity" includes the
state, counties, municipalities, and school
districts;
(b) the term "legislative body" includes the
legislature vested with legislative power by
Article 77 of The Constitution of the State of
Montana and any local governmental entity given
legislative powers by statute, including school
boards.
(2) A governmental entity is immune from suit for
an act or omission of its legislative body or a
member, officer, or agent thereof.
(3) 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.
It is clear that the Broadwater County Commissioners are
a legislative body of the governmental entity of Broadwater
County under the language of the statute. The decision to
fire Bieber, although initially made by only one
Commissioner, Duede, was later ratified by the rest of the
commission. It was an act of a member of a legislative body
and is covered under the express language of the statute. We
have previously held that acts of a County Commission are
immune under $ 2-9-111, MCA and do so again in this case.
See, Barnes v. Koepke (Mont. 1987), 736 P.2d 132, 44 St.Rep.
810; W. D. Construction, Inc. v. Bd. of County Commissioners
(Mont. 1985), 707 P.2d 1111, 42 St.Rep. 1638.
Appellant asks that we recognize the distinction between
administrative acts which should not be protected and
legislative acts which should be protected. We decline to
give credence to appellant's argument because the plain
language of the statute makes no such distinction. As we
have stated, this Court will not delve outside the plain
meaning of the words used in a statute. See, - -
W. D.
Construction, 707 P.2d at 1113 and Barnes, 736 P.2d at 134.
Appellant contends, as his second issue that Duede, as
an individual defendant, is not protected under § 2-9-111(3)
because Duede was not discharging an official duty associated
with "the introduction or consideration of legislation or
action by the" County Commissioners. We disagree. Duede
clearly had an official duty to oversee and administer the
maintenance and repair of county roads in his capacity as a
County Commissioner. Within this responsibility is the
ability to fire and hire road crew members. In firing
Bieber, Duede was discharging his lawful duty as
commissioner. He cannot be sued for that action under the
current law.
As a final point of argument, Bieber challenges the
constitutionality of 5 2-9-111, MCA. In response, the County
argues that this issue was not raised at trial and thus
cannot be heard by the Court upon appeal. We find sufficient
reference to the issue in Bieber's plaintiff's brief in
opposition to defendant's motion for summary judgment. Thus,
we will address this issue.
Bieber's claim is that the statute creates two classes
of county employees, those under the County Commissioners'
direct supervision who cannot sue the county and all other
county employees who can sue the county. Thus 5 2-9-111,
violates the equal protection clause, Art. 11, 5 4 of the
Montana Constitution. For this proposition, Bieber, directs
our attention to the case, Lovell v. Wolf (Mont. 1982), 643
P.2d 569, 39 St.Rep. 710, in which a county clerk and
recorder successfully sued the city-county manager for
wrongful discharge. Bieber, in essence, argues that since
the city-county manager was not protected under 5 2-9-114,
MCA, governing immunity for local executive officers, the
county should not be immune from suits under 5 2-9-111, MCA.
This argument is meritless. Nowhere in the Lovell case is
the issue of governmental immunity discussed. And because it
would have involved 5 2-9-114, not § 2-9-111, the case is not
'
relevant for the purposes of this issue.
The standard applicable to equal protection analysis can
be found in the case of Small v. McRae (19821, 200 Mont. 497,
Turning to the issue of equal protection, that
issue is analyzed by using a two-step process.
Initially, the Court must consider the nature of
the classification and the individual interests
affected, to determine what level of scrutiny is
applicable to the classifications. Memorial
Hospital - Maricopa County (1974), 415 U.S. 250,
v.
94 S.Ct. 1076, 39 L.Ed.2d 306. Unless the
classification touches on a fundamental right (such
as religious freedom, freedom of speech or
association, privacy or right to travel), or is
drawn upon an inherently suspect distinction (such
as race, religion or alienage) , the
constitutionality of the statutory discrimination
is presumed; the only requirement being that the
classification be rationally related to a
legitimate state interest. N ~ WOrleans v. ~ u k e s
(1976), 427 U.S. 297, 96 S . C ~ 2513, 49L.Ed.2d
511. "Rationally related" means that the
classification will be upheld if it has any
rational basis. See, Lindsley v. Natural Carbonic
Gas - (1911), 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed.
- Co.
369.
651 P.2d at 996.
Bieber argues that the fundamental right involved here
is the right to full legal redress provided in Art. 11, § 16
of the 1972 Montana Constitution. We disagree.
Art. 11, $ 16 of the Montana Constitution guarantees
citizens access to the courts of this state for the redress
of wrongs done to them. This Court has said that access to
the courts is not an independent fundamental right. We so
stated in Linder v. Smith (Mont. 1981) , 629 P.2d 1187, 1190,
38 St.Rep. 912, 915 and consequently used a rational basis
analysis to conclude that the Montana Medical Malpractice
Panel Act did not violate Art. 11, 5 16. This is the
appropriate standard to use for t-he purposes of equal
protection analysis in this case. The oft articulated
rationale for retaining government immunity (specifically in
this case legislative immunity) is to insulate a decision or
law making body from suit in order to prevent its decision or
law making processes from being hampered or influenced by
frivolous lawsuits. This reason satisfies the rational basis
test. The County Commission is entrusted with the
responsibility to supervise the maintenance and repair of
county roads. This includes the power to decide whom to hire
and fire. To allow suit against them for the performance of
their duties would hinder this performance. We conclude that
equal protection is not violated by S 2-9-111, MCA.
Affirmed.