Koch v. Yellowstone County

                            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:


'
3
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