No. 90-094
IN THE SUPREME COURT OF THE STATE OF MONTANA
CLINTON LOVE and ROSEMARY LOVE,
Plaintiffs and Appellants,
HARLEM IRRIGATION DISTRICT, LARY
MOHAR and GILBERT L. ANDERSON,
Defendants and Respondents,
CLINTON LOVE and ROSEMARY LOVE,
Plaintiffs and Appellants,
KNUTE KULBECK,
Defendant and Respondent.
APPEAL FROM: District Court ofthe Seventeenth Judicial District,
In and for the County of Blaine,
The Honorable B. W. Thomas, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David L. Irving, Glasgow, Montana
For Respondent:
Robert D. Morrison and Kathleen H. Richardson;
Morrison, Young, Melcher, Brown & Richardson; Havre,
Montana
Submitted on Briefs: September 27, 1990
Decided:
Q
December 4, 1990
Filed:
~usticeFred J. Weber delivered the opinion of the Court.
When the Harlem Irrigation District discontinued delivery of
water to the Loves for failure to pay water assessments, Loves
brought suit against the ~rrigationDistrict for failure to give
adequate notice. The District Court of the Seventeenth Judicial
~istrict,~laine
County, granted the defendants motion for summary
judgment based on immunity. From that order, plaintiffs appeal.
We affirm.
The sole issue for our review is: Did the ~istrictCourt err
in granting summary judgment in favor of defendants on the basis
of immunity?
plaintiffs (Loves) owned and operated a family farming and
ranching operation located within the Harlem Irrigation District
(~rrigation ~istrict) located in Blaine County, Montana. The
~rrigationDistrict was established pursuant to § 85-7-101, MCA,
and is a public corporation for the promotion of the public
we1 fare. The comrnissioners of the Irrigation District are
qualified and elected pursuant to state law. 8 s 85-7-1501 and 85-
7-1702, MCA. The individual defendants, Larry Mohar (Mohar),
Gilbert L. Anderson (Anderson) and Knute Kulbeck (Kulbeck) were
the commissioners for the Irrigation District at the time relevant
to this litigation.
The Loves were members of the Irrigation District since 1967.
As such members they were assessed bi-yearly taxes for the
operation of the Irrigation District. The Loves paid their
assessment up to and including the installment for the first half
2
of 1980. However, the second installment for 1980 and all
subsequent installments up to the time of this litigation were not
paid.
On May 12, 1983, the Irrigation District sent a certified
letter to the Loves which read:
Dear Mr. and Mrs. Love:
It was brought to the attention of the Board, during the
State audit which was completed in March, 1983, that
water assessments on your property are more than two
years in arrears. Pursuant to Montana Law Section 85-
7-1902, the Harlem Irrigation District wishes to advise
you that as of May 25, your water service will be
terminated unless delinquent water assessments are paid.
We regret that this action has become necessary. We also
wish to advise you that delinquent water assessments may
be paid separately when county taxes are also delinquent.
If payment has been made since May 9, please disregard
this notice.
Sincerely yours,
Gilbert L. Anderson
President
The letter was not picked up by the Loves and was returned to the
Irrigation District. The water assessment was not paid and water
was not delivered to the Loves. The Lovest claim that their crops
failed as a result.
Loves filed suit on August 5, 1983, alleging that the
Irrigation District and the individual commissioners were liable
for crop losses and pfinitive damages. On November 28, 1983, the
District Court ruled that the Loves were not in fact two years
delinquent in their water assessments until 5:00 pm, May 31, 1983.
The Irrigation District erred in its position that the Loves were
delinquent prior to that date.
Discovery and litigation continued, and six years later, on
November 9, 1989, the District Court entered its order allowing
the defendants to amend its answer to raise immunity as an
affirmative defense. Final judgment was entered on November 20,
1989, granting defendants motion for summary judgment on the
grounds of immunity.
On December 4, 1989, the Loves made a motion to amend the
order and for new trial based, in part, upon newly discovered
evidence. The District Court ruled that the new evidence was
incompetent, and declined to reverse its summary judgment. This
appeal followed.
Did the District Court err in granting summary judgment in
favor of defendants on the basis of immunity?
The Loves argue that under Montana law, the immunity issue is
considered an affirmative defense. They maintain that the defenses
of laches and estoppel should control since defendants had never
raised the immunity defense through six and one-half years of
litigation. Loves further contend that defendants are not immune
because they did not act as a legislative body.
Summary judgment is proper only when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P. Any
inferences to be drawn from the factual record must be resolved in
favor of the party opposing summary judgment and summary judgment
is never a substitute for a trial on the merits. Hoven v. First
Bank (N.A.) - Billings (1990), 797 P.2d 915, 47 St.Rep. 1563.
In this case there are no genuine issues of material fact.
The Irrigation District is clearly a "governmental entitynt
within
the meaning of 5 2-9-111, MCA. As defendants point out,
llgovernmental
entityrr
includes rrpolitical
subdivisionsw as defined
in 5 2-9-101(5), MCA:
ItPoliticalsubdi~ision~~
means any county, city, municipal
corporation, school district, special improvement or
taxina district, or any other political subdivision or
public corporation. (emphasis added).
Section 85-7-109, MCA, provides:
Every irrigation district so established is a public
corporation for the promotion of the public welfare, and
the lands included therein shall constitute all the
taxable and assessable property of such district for the
purposes of this chapter. (emphasis added).
Under 5 2-9-111(2), MCA, a Irgovernmentalentity is immune from suit
for an act or omission of its legislative body or a member,
officer, or agent thereof." Harlem Irrigation District is clearly
a governmental entity immune from suit under these definitions.
Under 5 2-9-111 (3) , MCA, the commissioners individually are immune
as members of a legislative body who are immune from suit for
damages arising from action by the legislative body.
The Loves urge that defendants waited too long to raise
immunity as a defense. We disagree. Rule 15(a), M.R.civ.P.
empowers the district courts with broad discretion to grant leave
to amend. In Priest v. Taylor (1987), 227 Mont. 370, 378, 740 P.2d
648, 653, this Court stated:
Rule 15(a) declares that leave to amend shall be freely
given when justice so requires; this mandate is to be
heeded .... If the underlying facts or circumstances
relied upon by a [party] may be a proper subject of
relief, he ought to be afforded an opportunity to test
his claim on the merits.
Here, the District Court allowed the amendment "in the furtherance
of justicew and Itin order that all issues could be given full
consideration." The District Court pointed out that at no time did
the Loves ask for time for further discovery. In addition, the
Loves failed to submit evidence showing they were prejudiced by the
amendment.
We hold that the District Court correctly granted summary
judgment in favor of defendants on the basis of immunity.
Therefore, we conclude that we need not discuss the other issues
raised by the parties.
Affirmed.
We Concur: -.
A
?
chierfJustice
Justices
Justice John C. Sheehy, dissenting:
I dissent as vigorously as I can from this reckless court-
grant of immunity to irrigation districts and their commissioners.
The majority decision is a follow-up from Bieber v. Broadwater
County (1988), 232 Mont. 487, 759 P.2d 145; Peterson v. Great Falls
School District No. 1 (1989), 237 Mont. 376, 773 P.2d 316; and
State ex rel. Eccleston v. District Court (1989), 240 Mont. 44,
783 P.2d 363. In Eccleston, in my dissent, I stated that the
immunity trilogy was the most extensive, even of monarchical
history, and that the majority had excused the king's men, his
feudal lords and all their vassals, 783 P.2d at 370 (Sheehy, J.
dissenting). This case demonstrates the dire results from granting
immunity to the feudal lords.
Section 2-9-111, MCA, is a grant of leqislative immunity.
Neither the irrigation district nor its commissioners were acting
legislatively in this case. In holding non-discretionary functions
of administrative decisions to be legislative in character, and
therefore entitled to immunity, the majority have stretched to a
greater extent than any other court the concept of the legislative
activity. In Utah, where the Supreme Court of that state holds
that state discretionary functions of governmental agents are
entitled to immunity, ordinary routine matters at the operational
level are not considered to be discretionary functions. That court
has recently said in Hansen v. Salt Lake County (Utah 1990), 794
P.2d 838, 846 (Durham, J.) :
Because we do not know which of defendant's arguments the
trial court accepted in granting defendantlsfirst motion
to dismiss, we must also address Hansen s contention that
defendant's actions were not discretionary functions for
which the immunity generally waived for negligence is
specifically retained. Utah Code Ann., 5 63-30-10(1)(a).
As early as Carrol v. State Road Commission, 27 Utah.2d
384, 496 P.2d 888 (1972), we held that discretionary
functions are those requiring evaluation of basic
governmental policy matters and do not include acts and
decisions at the operational level--those everyday,
routine matters not requiring Itevaluation broad policy
of
factors.I1 27 Utah.2d at 389, 496 P.2d at 891. We noted
in Frank that the discretionary function exception is
"intended to shield those governmental acts and decisions
impacting on large numbers of people in a myriad of
unforeseeable ways from individual and class legal
actions, the continual threat which would make public
administration all but imp~ssible.~~ Frank, 613 P.2d at
520.
In Doe v. Arsuelles, 716 P.2d 279, 283 (Utah 1985), we
held that a "decision or action implementing a pre-
existing policy is operational in nature and is
undeserving of protection under the discretionary
function exception." In that case, a 14-year-old was
sexually assaulted by a juvenile offender who was on
placement in the community but had not been discharged
from the Youth Detention Center. The victim's guardian
sued the juvenile offender, the state, and the
supervising probation officer, the latter two defendants
on the theory of negligent supervision. Although we
recognize that "a probation officer's policy decisions
are discretionary," we held that "acts implementing the
policy must be considered by a case-by-case basis to
determine whether they are ministerial and thereby
outside the immunity protection^.^^ I . The case had
d
been decided below on summary judgment and reversed and
remanded for trial.
The County argues that in its efforts to remove obstacles
from the natural channel of Big Cottonwood Creek as part
of its flood control program, its conduct necessarily
involved an exercise of judgment and constituted a
discretionary function. We disagree. We rejected this
literal interpretation of ltdiscretionarygl our earliest
in
cases involving section 63-30-lO(1) (a). (Citing a case.)
The majority of this Court has persisted in considering that
routine everyday matters of administering governmental agencies or
public corporations are legislative acts, and covered under the
legislative immunity provisions of 5 2-9-111, MCA. That erroneous
concept has created a flood of decisions now rising to this Court
from the District Courts, all because the District Courts are
taking the majority at their word, and applying legislative
immunity to every possible act of government.
In this case, the implications of immunity are frightening.
Although 5 85-7-1913, MCA, requires the Board of Commissioners of
an irrigation district to keep a complete book and record of all
of its actions, minutes of meetings and Ifother matters of every
kind pertaining to or belonging to the irrigation districtIrno such
record was kept here. No order or resolution of the Board of
Commissioners exists which would show an official action on the
part of the Board to discontinue the water to the Loves. The
District Court in this case had already decided that when the water
was cut off from the Loves by the persons acting in the purported
role of the Commissioners, their tax assessments were not
delinquent so as to require the suspension of the water rights.
In consequence, their farm did not receive the water it needed and
they lost an entire crop year and perhaps other losses not now
detailed before us.
The majority ought to be thinking what this decision means to
every water user in an irrigation district in Montana: Under this
decision, the district and its agents are immune not only for their
negligent acts but for their willful and wanton acts which
constitute a tort.
The right of an irrigation district to regulate, supervise and
apportion water under 5 85-7-1922, MCA, does not apply to users in
the district who have water rights or ditch rights established by
court decree, use, appropriation or otherwise. Yet, under this
decision, the negligent or wanton refusal of the District to supply
the water to which the member of the District may otherwise be
lawfully entitled will subject the irrigation district and its
agents to no liability, in spite of such water rights.
Thus, all water users within an irrigation district face the
same risk of ruin that the Loves in this case have endured. The
Commissioners apparently wrongfully deprived them of their water,
and this Court says they have no recourse at law.
Well might public officials and commissioners of irrigation
districts salute the majority of this Court. Immunity is never
having to say you're sorry.
I concur with the foregoing dissent of Justice John C. Sheehy.
Justice '