NO. 89-497
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
ROBERT W. KOCH, JEROME PRONOVOST,
MABEL LOGAN,
plaintiffs and Appellants,
YELLOWSTONE COUNTY, METRAPARK and
METRAPARK BOARD,
Defendants and Respondents.
APPEAL FROM: ~istrict Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jay F. Lansing, Billings, Montana (Koch)
Gary L Beiswanger, Billings, Montana (Pronovost)
.
Terry L. Seiffert, Billings, Montana (Logan)
For Respondent:
Doris M. Poppler, Billings, Montana
Anne Sheehy, David W. Hoefer, Deputy County
Attorneys, Billings, Montana
Submitted: May 23, 1990
Decided: July 12, 1990
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from an order of the Thirteenth Judicial
District, Yellowstone County granting summary judgment to the
defendants Yellowstone County, Metrapark, and Metrapark Board, in
a cause of action arising from the alleged wrongful termination by
the defendants of the plaintiff/employees. Summary judgment was
granted on the grounds that the defendants are immune from suit
pursuant to 5 2-9-111, MCA. We reverse and remand.
Appellants Koch, Logan, and Pronovost, plaintiffs below, raise
the following issues on appeal:
(1) Did the District Court err in determining that
Yellowstone County and MetraPark Board are immune from suit
pursuant to 5 2-9-111, MCA, and therefore were entitled to summary
judgment in their favor?
(2) Did the District Court err in determining that no genuine
issue of material fact existed thereby rendering the case
appropriate for disposition upon the defendantsf motion for summary
judgment?
'3) Did the decision of the District Court granting summary
judgment to Yellowstone County and MetraPark Board depri~.
appellants of a constitutional right to equal protection of the
law?
In January of 1980 the Yellowstone County Commissioners
created by resolution a joint commission known as the yellowst stone
Exhibition-METRA Commissionw, later known as the MetraPark Board.
I1MetraParkuis the name of the physical complex consisting of the
2
Yellowstone Exhibition (fairgrounds) and the Metra Arena building
(civic center), all of which is managed and governed by the
MetraPark Board.
On May 21, 1987 the MetraPark Board adopted a recommendation
of its executive committee to reorganize its employee structure.
The reorganization plan called for the elimination of eight
employment positions and the creation of five allegedly new
employment positions. On May 22, 1987, the MetraPark Board sent
letters to the eight existing employees terminating their positions
effective June 30, 1988. The positions held by plaintiffs Koch,
Logan, and Pronovost---maintenance manager, switchboard operator,
and assistant/operations manager, respectively---were among those
eliminated.
On May 28, 1987, the MetraPark Board personnel committee
proposed to the County Commissioners the creation of the five new
positions and the County Commissioners approved the recommendation
within a few days. On June 13, 1987, the commissioners approved
the eight previous employees1 termination and the hiring of the
five new employees. Pronovost was given the opportunity to apply
for the new position of "Operations Director1I but was not hired.
Subsequently, all eight terminated employees filed suit; three of
these suits were consolidated into the case at bar.
The District Court denied Yellowstone Countyls initial motion
for summary judgment based on the immunity provided by 5 2-9-111,
MCA. This Court then handed down its decision in Peterson v. Great
Falls School District No. 1 and A (Mont. 1989), 773 P.2d 316, 46
St.Rep. 880. Yellowstone County renewed its prior motion which
the court granted based on the immunity provided in 5 2-9-111, MCA
and Peterson.
The plaintiffs contend that 5 2-9-111 should be interpreted
as granting immunity to a legislative body only for legislative
acts. We disagree. It is well settled in the line of cases
decided under the statute that the language of the statute does not
distinguish between legislative and administrative acts:
Our recent decisions in Bieber [ (Mont.1988), 759 P.2d
145, 45 St.Rep. 12181 and Peterson [ (M0nt.1989)~773 P.2d
316, 46 St.Rep. 8801 clearly disposed of this issue.
While the statute is entitled "Immunity from suit for
legislative acts and omission^,^ we held in Peterson and
Bieber that the plain meaning of the statute's actual
language is much broader in that ''action by the
legislative body need not be legislative in nature to
afford immunity. Peterson, 773 P.2d at 318.
Accordingly, we decline to give credence to the
plaintiff's distinction between administrative and
legislative acts "because the plain language of the
statute makes no such distinction." Bieber, 759 P.2d at
147. We will not delve outside the plain meaning of the
words used in a statute. W.D. Construction, 707 P.2d
at 1113, Barnes v. Koepke (M0nt.1987)~226 Mont. 470, 736
P.2d 132, 134.
State ex rel. Eccleston v. Third Judicial District Court (Mont.
1989), 783 P.2d 363, 367, 46 St.Rep. 1929, 1934. Accordingly, in
determining whether immunity is afforded to the defendants in this
case, we look to the plain meaning of the language of the immunity
statute, 5 2-9-111, MCA. The statute provides:
2-9-111. Immunity from suit for legislative acts and
omissions. (1) As used in this section:
(a) the term Itgovernmental entityw includes the
state, counties, municipalities, and school districts;
(b) the term "legislative body" includes the
legislature ... 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.
(4) the immunity provided for in this section does
not extend to any tort committed by the use of a motor
vehicle, aircraft, or other means of transportation.
We now examine the nature of the entities named as defendants
in this case---Yellowstone County, MetraPark, and MetraPark Board-
--to determine if and to whom statutory immunity applies.
Yellowstone County is clearly a governmental entity under
subsection (1). According to the plain meaning of subsection (2),
the County is immune from suit if the MetraPark Board is a
legislative body of the County or an agent thereof.
Subsection (1)(b) of § 2-9-111, MCA defines lglegislative
bodyvv
as "the legislature . . . and any local governmental entity given
legislative powers by statute, including school boards.
Legislative power includes the power to make, alter, or repeal laws
or rules for the future, 16 C.J.S. Constitutional Law 5 113, pp.
377-378; Springer v. Philippine Islands, (1927), 277 U.S. 189, 201-
202, 72 L.Ed. 845, 849, 48 S.Ct. 480, 482; as well as the power to
control fiscal matters, such budgets, appropriations and levy
of taxes.
The statutory powers of the separate fair commission and the
civic center or building commission constituting the MetraPark
Board are found in chapter 8 and 21 of title 7, Montana Code
Annotated. Section 7-8-2103, MCA, authorizes the County
Commissioners to create a county building commission for
... the management of such civic center, youth center,
park buildings, museums, county parks, recreation
centers, hospitals, or any combination of two or more
thereof. Such commission shall be composed of the
chairman of the board of county commissioners and five
lay members to be appointed by the board. In cases where
a commission has been appointed, the commission, together
with the board, shall have the power to employ a manager.
Section 7-8-2103, MCA. Sections 7-21-3401 et seq., MCA,
authorizes the County Commissioners to create county fair
commissions and sets forth the terms of office of such
commissioners, 5 7-21-3402; the necessary qualifications, 5 7-21-
3403; the organization of the commission, 5 7-21-3404; and the
compensation of the commissioners, 9 7-21-3405. The county fair
commission also has specific statutory powers:
7-21-3406. Powers of county fair commission. BY
resolution of the board of county commissioners, the
county fair commissioners shall have control and
operation of the fair and the supervision and management
of the fairgrounds ...
The fair commission also has specific duties:
7-21-3407. Duties of county fair commission. (1) The
commission shall do all things necessary to hold a
successful annual county agricultural fair . . .
including:
(a) employment of labor;
...
(el everything necessary in conducting the
continuing operation of the county fairgrounds and
buildings.
(2) The commission shall have charge of all
fairgrounds and fair property.
These duties and powers are by their nature executive or
administrative. The Metrapark Board is a joint commission created
by resolution of the County Commissioners combining the powers of
the civic center and fair boards. With regard to the powers of
the Metra Park Board, plaintiffs cite a September 4, 1987 Attorney
General's Opinion as authority that the Yellowstone County
Commissioners had no authority to create a joint commission
comprised of the fair board and the civic center board that
empowers these individual boards to vote on matters pertaining to
the statutory authority vested in the other. See 5 5 7-8-2103 and
7-21-3401, MCA, supra. Although we find it unnecessary to
specifically address this issue to dispose of this case, it is
worth noting that the 1989 Legislature, apparently in response to
an Attorney General's opinion, enacted legislation authorizing a
county board of commissioners to create a joint fair and civic
center commission, as already existed for ten years in Yellowstone
County:
7-21-3451. Authorization to create a joint fair and
civic center commission. (1) the board of county
commissioners shall have the power to create a joint
fair and civic center commission for the management and
operation of the fairgrounds and civic centers within the
county.
(2) The board of county commissioners of a county
upon application fromthe regularly appointed county fair
commission and county building commission, may by
resolution create a joint fair and civic center
commission.
(3) The joint fair and civic center commission is
vested with the full powers granted to the county fair
commission and the county building commission.
See, crenerallv, 5 5 7-21-3451 through -3458. The duties of the
joint commission are also the same as the combined duties of the
county fair commission and the county building commission. Section
It is evident from these statutes that the statutory powers
of the MetraPark Board are limited to the management and operation
of the Metra Civic Center and do not include any authority to make,
alter, or repeal laws or rules. Clearly the MetraPark Board is
not vested with the legislative power of a school board as in
Peterson and Eccleston nor does it have the legislative power of
a board of county commissioners as in Bieber and Miller v. Fallon
County (Mont. 1989), 783 P.2d 419, 46 St.Rep. 2087. The MetraPark
Board clearly performs statutory executive functions and is not
a legislative body.
The second part of our analysis under subsection (2) of 5 2-
9-111, MCA, is to determine whether MetraPark Board is an agent of
the Board of County Commissioners of Yellowstone County, the per
se legislative body of Yellowstone County. While the District
Court relied Peterson granting summary judgment the
defendants, our recent decision in Eccleston more clearly
addresses the relationship between agency and the immunity of 2-
9-111, MCA. In Eccleston we held that a school principal and
janitors were agents of the school board within the meaning of 5
2-9-111, MCA, providing them immunity from suit for an alleged
negligent failure to remove ice and snow from steps at the school
gymnasium. In Eccleston, we relied on the Restatement 2d of
Agency. Under the Restatement, the crucial factor in this agency
determination is control by the principal:
8 1. Agency; P r i n c i p a l ; Agent.
(1) Agency is the fiduciary relation which results
from the manifestation of consent by one person to
another that the other shall act on his behalf and
subject to his control. ...
(Emphasis added.)
Restatement 2d of Agency, 5 1. In Eccleston we recognized that the
school boards are expressly given the right to control principals
and janitors, including the right to employ and dismiss them as
deemed necessary, by statute. See § 20-3-324, MCA.
In this regard, the case at bar differs from Eccleston. While
the Board of County Commissioners has the authority to supervise
all county officers in the performance of their duties, relative
to assessins, collectins, safekeepins, manasement or disbursement
of the public revenues, the Board does not have the power to
perform county officers' statutory duties for them or direct the
manner in which duties are performed. Section 7-4-2110, MCA,
Arnold v. Custer County (1928), 83 Mont. 130, 146-47, 269 P. 396,
401; Hicks v. Orange County Board of Supervisors (1977), 138
Cal.Rptr. 101, 109, 69 Cal.App.3d 228, 242; People v. Langdon
(1976), 126 Cal.Rptr. 575, 578, 54 Cal.App.3d 384, 390; see
senerally 20 C.J.S. Counties, 5 85, p.854. Here, there is no
specific statutory grant of power to the Board of County
Commissioners giving it the right to control the civic center
board, the fair board, or the MetraPark Board relative to the
employment function. With respect to the employment of personnel,
the MetraPark Board has independently derived statutory powers
granted by the legislature and thus is not subject to the control
of the Board of County Commissioners regarding the exercise of that
function under these facts. Therefore, under the Restatement the
MetraPark Board is not the agent of the County Commissioners with
respect to the employment of plaintiffs here. Accordingly, the
MetraPark Board is not immune from suit under 5 2-9-111 (2), MCA,
as an agent of a legislative body. We are not however, detracting
from the powers of the Board of County Commissioners to fix the
number of employees, the salaries and benefits, or adopt personnel
policies, when such is a facet of its statutory authority to adopt
a county budget and levy taxes to finance the same.
Furthermore, although it is not an agent of the County
Commissioners, the Board and the members of the Board are
nevertheless officers of Yellowstone County, just as the County
Superintendent of Schools, the County Clerk and Recorder, and other
statutorily created executive officers are, and the County is
subject to indemnify such officers for their torts while acting as
a Board under 5 2-9-305, MCA.
The MetraPark Board is neither a legislative body or an agent
thereof, therefore it is not immune from suit under 5 2-9-111, MCA.
Having concluded that immunity does not extend to the MetraPark
Board, we need not address the other issues raised on this appeal
as the lower court did not rule upon them.
REVERSED AND REMANDED.
We Concur:
'
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fristrict Judge Larry W. Moran specially concurring:
Mr. Justice McDonough's Opinion is an exhaustive and
entirely appropriate analysis of the facts and law in the case,
and I concur in the result. Even so, the style, content, and
length of the Opinion is representative of difficulties
encountered in a departure from traditional common law procedure.
Historical developrrient of the common law has proceeded from
court recognition of facts and theory, to enunciation of legal
principles, thence to establishment of precedent. This
progression has been the strength and flexibility of judge made
law, and the primary reason for its effectiveness and durability.
However, this sequence is not apparent in recent decisions
regarding the issue of governmental immunity and the effect of
S 2-9-111, MCA. In fact, the exact reverse has occurred.
Instead of moving forward to the establishment of precedent, the
movement has been to a self-perpetuating case by case pattern of
decision.
It is respectfully suggested that a case by case
determination of the complex and important issue of governmental
immunity and applicability of § 2-9-111, MCA, tends to create
confusion and instability. Many fine and intricate distinctions
(such as those reflected in Justice McDonough's Opinion) will,
inevitably, become finer, more intricate, and more complex as the
struggle to maintain logic intensifies; there will be
distinctions within distinctions, and the reasons for decisions
will becume, essentially, inscrutable; and, precedent will becume
more elusive.
In the evolution of tort liability, primary emphasis has
been directed to the act or conduct producing a cause of action.
It is proper in a democracy where the law must be on guard when
extending special rights, privileges, or immunities, that
liability be based on acts or conduct, not on the nature or
character of the actor. Unfortunately, in fixing liability in
cases involving governmental immunity and 5 2-9-111, MCA,
attention has been misdirected to a matter deserving only passing
interest - - the nature or character of the actor - - with act and
conduct generally ignored. This, too, seems to be a departure
from the tested and proven way of the common law.
How beneficial i.t would be to see (or to write) an opinion
on governmental immunity considering provisions of § 2-9-111,
MCA, simply concluding: "the act giving rise to the cause of
action is clearly administrative or executive, not legislative.
Hence, governmental immunity does not attach" -- or the reverse,
in applicable situations.
Hon. &rry\~. fi
~istrict-%i?d~e, sitting for
the Hon. Justice John C.
Sheehy
We concur in the faregcling specially cancurring opinion ef
District Judge Moran.
i?!Lewa
Hon. Thomas A. Olson
District Judge sitting for
the Hon. Justice Diane G. Barz