NO. 90-184
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
S.M., J.A.M., M.M., J.K.M., and
Plaintiffs and Appellants,
-vs-
R.B., an individual, and MISS
political subdivision of the State of Montana,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James P. OIBrien and Randolph J. Stevens; OIBrien
Law Offices, Missoula, Montana.
For Respondent:
Larry Jones; Garlington, Lohn & Robinson, Missoula,
Montana.
Submitted on briefs: M ~ 21,1991
Y
Decided: May 23, 1991
Filed:
I
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
The complaint alleges that R.B., an educational aide for the
Missoula School District, sexually assaulted four-year-old
plaintiff S.M., who was enrolled in the Missoula School District
special education program for the developmentally disabled. The
defendants include the School District and the School District
personnel involved in the special education program. The District
Court for the Fourth Judicial District, Missoula County, granted
defendants' motion to dismiss the Amended Complaint of the
plaintiffs on the grounds of immunity, and subsequently grantedthe
motion to dismiss the Second Amended Complaint on the same grounds.
Plaintiffs appeal. We affirm in part and reverse in part.
The issues are:
1. Have the Montana statutes and case law interpretations
resulted in an ambiguity requiring a reversal of the District Court
holding that the defendants are immune under 5 2-9-111, MCA?
2. Does the purchase of insurance waive immunity?
3. Did the District Court improperly fail to rule on
plaintiffs' claims under 42 U.S.C. 5 1983?
4. Is 5 2-9-111, MCA, unconstitutional?
The facts as alleged in the Amended Complaint and the Second
Amended Complaint are as follows:
Plaintiffs included S.M., her two parents, and the other two
minor children in her family. S.M. was a four-year-old suffering
developmental disabilities and was enrolled in the School
District's special education program when the acts occurred.
Plaintiffs allege that the special education program established
a special relationship between S.M., her family, and the School
District.
R.B. was an educational aide for the School District, who
helped in the education and training of developmentally disabled
children attending the School District's program.
The School District maintained a policy of liability insurance
insuring against liabilities arising from its negligence.
Plaintiffs contend the procurement of such insurance constitutes
a waiver of sovereign immunity to the extent of the insurance
coverage.
Plaintiffs alleged that on or about April 16, 1987, R.B.
sexually assaulted S.M. and committed sodomy and attempted rape.
S.M. received vaginal lacerations of such severity that
reconstructive surgery will be required at adulthood. She suffers
continual nightmares, and has become fearful of school.
Plaintiffs alleged that the School District and its employees
were negligent in the hiring, controlling and supervising of R.B.
as an educational aide. Plaintiffs maintain the School District
knew or should have known that R.B. had Itapredatory predisposition
toward young developmentally disabled children by virtue of prior
reports" that warned the School District of R.B. Is ttantisocial
and
dangerous behaviortt.
Plaintiffs alleged seven different causes of action with
various theories of liability which will be discussed where
appropriate. In substance the defendants assert that plaintiffs1
claims are barred by the following defenses:
doctrine of sovereign immunity;
doctrine of respondeat superior;
doctrine of exhaustion of remedies;
failure to seek administrative review;
lack of jurisdiction;
claims for monetary damages barred by 5 2-9-108, MCA;
claims for punitive damages barred by 5 27-1-221, MCA;
and
claims barred by 42 U.S.C. 5 1983 (1981).
Following the failure of R.B. to appear, plaintiffs moved for
default judgment which was entered against him on September 8,
The School District filed a Rule 12, M.R.Civ.P., motion to
dismiss the plaintiffs1 complaint. On January 25, 1990, the
District Court granted the motion to dismiss the plaintiffs1
Amended Complaint on the grounds of immunity. Subsequently, the
District Court also granted defendants' motion to dismiss
plaintiffs1 Second Amended Complaint on the same grounds. From
that order, plaintiffs appeal.
Have the Montana statutes and case law interpretations
resulted in an ambiguity requiring a reversal of the District Court
holding that the defendants are immune under 5 2-9-111, MCA?
Plaintiffs argue there is a statutory ambiguity which is
apparent upon a comparison of Ij 2-9-111, MCA, the immunity section,
and 5 20-3-331, MCA, which authorizes the trustees of a school
district to purchase insurance coverage against liability for
death, injury or disability of any person. Essentially plaintiffs
argue there is no purpose in authorizing a school district to
purchase liability insurance if there is immunity. This contention
is cared for in Part I1 of this opinion in which we conclude that
the purchase of liability insurance in this case does constitute
a waiver of immunity.
Plaintiffs contend there is ambiguity as a result of the
various cases previously decided in Montana. In particular,
plaintiffs rely upon B.M. v. State (1982), 200 Mont. 58, 649 P.2d
425. Plaintiffs argue that in B.M. this Court found there was no
governmental immunity for negligence committed under a special
education program and that such theory should be applied in the
present case. In considering the cases, it is necessary that we
first set forth the provisions of 5 2-9-111, MCA:
Immunity from suit for legislative acts and
omissions. (1) As used in this section:
(a) the term ffgovernmentalentityff includes the
state, counties, municipalities, and school districts;
(b) the term fflegislative bodyff includes the
legislature vested with legislative power by Article V
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 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.
Plaintiffs have not discussed the cases subsequent to B.M.
which must be considered. In State ex rel. Eccleston v. Montana
Third Judicial Dist. Ct. (1989), 240 Mont. 44, 53, 783 P.2d 363,
369, the Court set forth the contentions of the plaintiffs in B.M.
and stated:
In B.M., the plaintiffs sued the State for negligence in
placing a six-year old child in a special education
program for educable mentally retarded children. The
State was granted summary judgment based on immunity
under 5 2-9-111, MCA. We reversed on the grounds that
the legislature had not enacted legislation to limit the
liability of school boards in the administration of
special education programs. We held that in the absence
of a clear statutory declaration granting immunity it is
this Court's duty to permit rather than to deny an action
for negligence. B.M., 649 P.2d at 427.
However, Eccleston pointed out that 5 2-9-111, MCA, was not
discussed in B.M. In concluding that under the decisions, the
plain language of the statute constitutes a clear statutory
declaration granting immunity, the Court said in Eccleston:
The plain meaning of the actual language used in 5
2-9-111, MCA, was not discussed in our decision in B.M.
v. State. We have decided several other immunity cases
since our 1982 decision in B.M. In the process, we have
arrived at the current construction of 5 2-9-111, MCA,
on a case-by-case basis. B.M.'s rule of strict
construction still holds true. However it is now clear,
particularly after our decisions in Bieber and Peterson,
that the plain language of the statute constitutes a
clear statutory declaration granting immunity to the
relators in this case.
Eccleston, 783 P.2d at 369. The Court then analyzed further and
pointed out that the statute granted immunity to both the school
district and its individual employees, and stated:
In this regard, we are not asserting in this opinion
that the statute is unequivocally clear at first glance.
Indeed, several interpretations of 5 2-9-111, MCA, have
been argued in the line of cases that have come before
us since the statute's adoption. However, it is this
line of cases, particularly our recent decisions in
Bieber and Peterson that has given a specific and
reasonable interpretation to the statute based on the
plain meaning of the actual language used. Moreover,
this interpretation of 5 2-9-111, MCA, leads us to but
one conclusion: the statute grants immunity to both the
school district and its individual employees in this
case.
I . at 369.
d It is clear that Eccleston disposes of the argument
made by the plaintiff. This interpretation was approved in
Hayworth v. School Dist. No. 19 (1990), 243 Mont. 503, 795 P.2d
470, in which this Court affirmed the Eccleston rationale and its
interpretation of B.M., and reached the conclusion that the claims
of the plaintiffs in Havworth were barred by the immunity found in
5 2-9-111, MCA.
In a similar manner, in Crowell v. School Dist. No. 7 (Mont.
1991), 805 P.2d 522, 48 St.Rep. 81, this Court affirmed the
rationale of Eccleston, holding that the school district in Crowell
was immune from suit for an act or omission of its agent and that
the physical education teacher was the agent of the school
district. Further the Court concluded that the claim for damages
arose from the lawful discharge by the teacher of an official duty
associated with actions of the school district and its legislative
body. The Court held that the physical education teacher was
immune under 5 2-9-111, MCA.
Montana now has a number of consistent interpretations of 5
2-9-111, MCA, which are controlling on the present issue. We
conclude that there is no basis for a reversal of the holding of
the District Court that the defendants were immune under the
provisions of 5 2-9-111, MCA.
Does the purchase of insurance waive immunity?
Plaintiffs maintain that even if the School District and its
employees are immune, such immunity is waived to the extent of
existing liability insurance coverage. The School District argues
that the grant of immunity is a public right which cannot be
waived.
In Crowell this Court concluded that the purchase of insurance
may constitute a waiver of immunity by a school district. In
Crowell, the plaintiff alleged that the negligence of the physical
education teacher and the school district caused her injuries.
Summary judgment was granted to the defendants based on immunity.
On appeal plaintiff contended that any such immunity was waived by
the school district's purchase of an insurance policy specifically
covering teachers and physical training instructors. After an
extensive review of Montana legislative history and the case law
of other jurisdictions, this Court concluded:
We emphasize that Montana's statutory provisions are
unique. We conclude that the Montana Legislature has
reached the following conclusion: while a school
district is granted immunity of various types, a school
district still is granted authorityto purchase insurance
which may have the effect of waiver of immunity to the
extent of the insurance proceeds. We do not find it
necessary to imply a waiver, as the intention of the
Legislature is clear. That intention is reemphasized by
its authorization of tax levies sufficient to pay for
insurance premiums. That intention is consistent with
the legislative theory that a claim against a school
district should be paid in a manner similar to payment
required of a private party. We conclude that the
Legislature has declared its intent to allow a school
district to waive immunity to the extent of the insurance
proceeds.
Crowell, 805 P.2d at 533. This Court then made the following
holding:
Balancing all applicable factors, we hold that the
purchase by the School District of liability insurance
waives its immunity to the extent of the coverage granted
by the pertinent insurance policy.
Crowell, 805 P.2d at 534.
In accordance with the holding in Crowell, we hold that the
purchase by the School District of liability insurance waives its
immunity to the extent of the coverage granted by the pertinent
insurance policies. We remand to the District Court for further
proceedings consistent with this holding.
Did the District Court improperly fail to rule on plaintiffs'
claims under 42 U.S.C. 5 1983?
By its Opinion and Order dated January 25, 1990, the District
Court granted defendantsv motion to dismiss the Amended Complaint
with prejudice on the grounds that the named defendants were immune
from suit for damages under 5 2-9-111, MCA, and cases interpreting
that section. The District Court did not specifically rule on the
5 1983 claims. Plaintiffs contend that the District Court abused
its discretion by dismissing those claims. The defendants urge
that the doctrine of implied findings should be used to reach the
conclusion that the District Court did rule on the federal claims.
In a consideration of the 5 1983 claims of the plaintiffs, the
District Court was required to analyze the complaint, the facts
presented to it, and to apply the law in reaching a decision as to
whether or not 5 1983 claims were barred. The court did not make
such an analysis. Apparently it assumed that the 5 1983 claims
would be barred under 5 2-9-111, MCA. We note that Howlett v. Rose
(1990), 110 S.Ct. 2430, is a case in which the United States
Supreme Court concluded that a state immunity defense was not
available in a 5 1983 action brought in a state court, when such
a defense would not be available if the action were brought in a
federal court. Howlett precludes any implication on our part that
the District Court properly dismissed 5 1983 claims.
We therefore remand this issue for consideration and
determination by the District Court.
IV
Is 5 2-9-111, MCA, unconstitutional?
In their pleadings the plaintiffs briefly alleged deprivation
of constitutional rights. In a similar manner, plaintiffs' briefs
contain only a limited argument on theories of unconstitutionality.
It appears that the plaintiffs added constitutional arguments in
the hope that if previous contentions failed, there might be some
basis for a reversal on theories of unconstitutionality. In view
of our remand to the District Court on the issues of waiver of
immunity by insurance and also 42 U.S .C. 5 1983, it may be that the
plaintiffs will choose no longer to urge the constitutional issues.
If they conclude that they wish to present such issues, then both
sides may present their theories and briefs to the District Court
and request an appropriate determination by that court. We note
that the District Court did not rule on this issue. We conclude
it is not appropriate in this case to consider the issue of
unconstitutionality of 5 2-9-111, MCA.
We reverse the orders of dismissal of the District Court and
remand for further proceedings consistent with this opinion.
If
/
1
6hief Justice
Justices
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
I concur with the result of the majority opinion. Based upon
this Court's decision in Crowell v. School Dist. No. 7 of Gallatin
County, 805 P.2d 522, 48 St.Rep. 81 (Mont. 1991), I agree that this
case should be remanded to the District Court for further
proceedings consistent with that opinion. However, I disagree with
the reasoning of the Crowell decision. It is clear to me that the
legislature did not authorize the waiver of immunity when it
authorized local governments to purchase insurance. It authorized
local governments to purchase insurance because it never did create
the kind of local governmental immunity that has been found to
exist by this Court.
I also concur in that part of the majority's opinion which
remands this case to the District Court for proper consideration
of the plaintiffs' claims under 42 U.S.C. 5 1983.
I dissent from that part of the majority's opinion which holds
that § 2-9-111, MCA, clearly and unambiguously provides immunity
to the Missoula School District and its employees for the acts
complained of by the plaintiffs.
To understand just how far we have come with this Court's
unique brand of judicial activism, it is necessary to put this
holding in the proper perspective. The defendant, R.B., is accused
of raping and sodomizing a four-year-old special education student,
and in the process, causing serious physical and emotional injury.
In order to immunize the school district and all of its employees,
12
this Court had to conclude that the depraved conduct which is
complained of was "action by the legislative body." I am confident
that the members of the Board for the Missoula School District will
take no satisfaction in this appalling conclusion.
Section 2-9-111, MCA, is a poorly worded statute which
provides different types of immunity to different defendants.
Subsection (2) is relatively straightforward and provides that
"[a] governmental entity is immune from suit for an act or omission
of its legislative body or a member, officer, or agent thereof . "
(Emphasis added.)
However, subsection (3), which pertains to governmental
employees in their individual capacities, sets forth a completely
different description of when immunity applies. It states:
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.
Section 2-9-111(3), MCA.
In this case, plaintiffs sued both the school district and
several of its employees.
It is obvious from any reasonable interpretation of these two
sections that liability of individual governmental employees is
granted on a much more limited basis than liability for the
governmental entity itself. If not, it would have been a simple
matter for the legislature to provide in subsection (2) that
"a governmental entity and its emplovees are immune from suit from
an act or omission of its legislative body, or a member, officer,
13
or agent thereof. (Emphasis added. ) The legislature chose not
to do that. Therefore, this Court should not do so.
In his concurring opinion to Crowell, Chief Justice J. A.
Turnage correctly points out that:
I1In the construction of a statute, the office of the
judge is simply to ascertain and declare what is in terms
or in substance contained therein, not to insert what has
been omitted or to omit what has been inserted.I1 Section
1-2-101, MCA. This is the rule of law governing
statutory construction, and it is an appropriate and
proper rule. There is no place for individual preference
or desire to become the rule of law when the Court
interprets statutory language.
I agree with Chief Justice Turnage1s conclusion regarding the
proper role of this Court. However, I disagree that this Court has
adhered to that rule of statutory construction when interpreting
§ 2-9-111, MCA. If it did, it could certainly not have concluded
that the sodomization and rape of a four-year-old special education
student by a teacher's aide was Ifthe lawful discharge of an
official duty associated with the introduction or consideration of
legislation or action by the legislative body."
The reason we are at the point we have reached with today's
decision is that this Court has ignored the statutory admonishment
found in 5 1-2-101, MCA, and substituted its collective personal
preference for a literal application of the statutory language
found in 5 2-9-111(3), MCA. The misapplication of that statute
will result in countless hardships to innocent victims throughout
the State of Montana. I prefer not to be part of blind adherence
to precedent which is both legally incorrect and morally
indefensible.
Furthermore, I dissent from that part of the majority decision
which refuses to address the constitutionality of 5 2-9-111, MCA,
as it has been applied by this Court.
The principal reason for which this Court exists is to enforce
the Constitution of the State of Montana. When the legislature,
through its statutes (as they are written or as this Court
interprets them), violates the ~onstitution, this Court owes
Montana's citizens its judgment to that effect.
Article 11, § 4, of the Montana constitution provides in part
that ''no person shall be denied the equal protection of the laws.I'
That provision of our state constitution is similar to rights
provided for in the 14th Amendment of the United States
Constitution. The equal protection clauses of both constitutions
go to the very heart of the reason for which this Court exists.
They guarantee that all Montana citizens shall be treated fairly.
There is no greater example in the recent history of this
Court of unfair treatment of Montana citizens than in this Court's
recent decisions on the issue of local governmental liability.
Those decisions have been inconsistent and irrational. And yet,
they deny Montana citizens the most fundamental rights that any
citizen in a free country possesses. They deny Montanans the right
to use their courts to seek redress from a government which injures
them through irresponsible, negligent, or even intentional and
unlawful conduct.
In Meech v. Hillhaven, 238 Mont. 21, 776 P.2d 488 (1989), this
Court held that there is no fundamental right in Montana to full
legal redress for injuries or damages caused by the unlawful or
negligent act of another. Therefore, according to that decision,
classifications which give different rights to different classes
of tort victims need not pass the strict scrutiny test and need not
be justified by a compelling governmental interest. The state need
only establish that the disparate treatment of similar claims is
rationally related to a state interest. While I disagree with this
Court's decision in Meech, I am satisfied that the patchwork of
arbitrary classifications created by this Court's decisions on
local governmental liability cannot meet the most liberal rational
basis analysis.
According to this Court's decisions, if a person is seriously
injured due to the negligent maintenance and signing of roads in
Fallon County, that person has no recourse against local
government. Miller v. Fallon County, 240 Mont. 241, 783 P.2d 419
(1989). However, if that same person sustains the same injuries
under the exact same circumstances in the City of Billings, he may
be fully compensated. Irion v. Peterson, 807 P.2d 714, 48 St.Rep.
258 (Mont. 1991). What is the rational basis for such a
distinction?
Under this Court's application of the law, if a local citizen
is paralyzed because a county road crew digs a ten foot ditch
across the road and leaves it unmarked at night, that victim is
without any remedy. Miller. However, if a member of the same road
crew gets into a county truck, runs a red light and strikes another
local citizen, that citizen can be fully compensated, no matter how
16
minor his or her injury. 5 2-9-111(4), MCA. What is the rational
basis for such a distinction?
Under this Court's series of decisions, if a local citizen is
injured because he or she slips on the steps at the University of
Montana, that person may be fully compensated. Mitchell v.
University of Montana, 240 Mont. 261, 783 P.2d 1337 (1989).
However, if that same person is injured because he slips and falls
on the steps of the local junior high school, he is without a
remedy. Eccleston v. District Court, 240 Mont. 44, 783 P.2d 363
(1989). What is the rational basis for such a distinction?
Under this Court's decisions, if a Montana citizen is injured
due to the negligence or illegal conduct of a member of the park
board which is appointed by the county commission in Yellowstone
County, that person may be fully compensated. Koch v. Yellowstone
County, 243 Mont. 447, 795 P.2d 454 (1990). However, if that same
person is injured due to the negligence of the road foreman hired
by the commissioners for Yellowstone County, that person is without
a remedy. Miller.
Under this Court's recent decisions, if a citizen of Montana
is injured due to the negligence of an employee of the Town of
Whitefish, and if that town is responsible enough to purchase
liability insurance for the protection of its citizens, then that
injured victim can be fully compensated for his injuries. Crowell.
However, if that person's spouse is injured by the same conduct
and under the same circumstances, by public officials in Kalispell,
and if that town is irresponsible enough to go without liability
17
insurance, then that person is entitled to no compensation, no
matter how disabling or catastrophic his injuries. What is the
rational basis for any of these distinctions?
If this Court can conceive for a rational basis for the
arbitrary classifications of tort victims that have been
established by its series of decisions set forth above, then it has
rendered the important constitutional guarantee of "equal
protectionl1 meaningless, and no one in Montana is protected from
the arbitrary whims that create discrimination among its citizens.
If the equal protection clause is so meaningless, then the
legislature can decide that doctors can be sued, but that lawyers
are immune; that plumbers can be sued, but that carpenters are
immune; and that women can be sued, but that men are immune. The
ultimate test will be who has the most influential lobby at the
legislature.
To avoid such situations is exactly why we have a constitution
and a judicial branch of government. However, the majority has
abdicated its responsibility to address this critical issue based
on speculation that plaintiffs were not that serious about it in
the first place.
On appeal, the plaintiffs have clearly raised the fact that
they, as victims of abuse in a public school, are being treated
differently than if they had suffered the same abuse in a private
school. There is no question about the fact that if a four-year-
old preschool student was sodomized and raped in a private school,
she and her family would be entitled to reasonable compensation for
18
ths t e r r i l ~ l c physical and enotional injuries that she had
sustained. On appeal., t h e p l a i n t i f f s have asked t h i s C o u r t t o
justify that arbitrary class distinction. Tnis Court obviously
c a n n o t do s o , and s o , h a s , i n e f f e c t , t o l d t h e p l a i n t i f f s , ''don't
bother us with c o n s t i t u t i o n a l t e ~ h n i c a l i t i e s . ~ ~
I t i s i r o n i c t h a t d u r i n g t h e s a m e y e a r t h a t Montana became t h e
4 8 t h s t a t e t o honor s l a i n c i v i l r i g h t s symbol, M a r t i n L u t h e r King,
Jr., this Court refuses t o recognize t h e civil rights of its
p r i v a t e c i t i z e n s when i n c o n f l i c t w i t h l o c a l b u r e a u c r a t s and t h e i r
agents.
I would accept this Court's obligatioi~ t o decide the
c o n s t i t u t i o n a l i t y of 5 2 - 9 - 1 1 1 , MCA, as it h a s heen a p p l i e d , and
I wculc? f i n d t h a t , 3s i t h a s been a p p l i e d , it v i o l a t e s the e q u a l
p r o t e c t i o l ? c l a u s e of t21e P!~:?ta:la ~ n c ? e d e r a l C o n s t i t u t i o n s .
f
For t h e s e r e a s o n s I d i s s e n t f r o n t h e m a j o r i t y o p i n i o n .
I c o n c u r i n t h e f o r e g o i n g c o n c u r r e n c e and d i s s e n t of J u s t i c e
Justice Karla M. Gray, concurring in part and dissenting in part.
I agree with the result of the majority opinion in remanding
to the District Court for further proceedings in light of the
availability of insurance coverage, although I disagree with its
rationale in Crowell v. School Dist. No. 7 (Mont. 1991), 805 P.2d
522, 48 St.Rep. 81, that the availability of the coverage is
predicated upon a waiver of immunity. I also agree with the
majority's remand for consideration and determination of the § 1983
claims. I must, however, respectfully dissent from the Court's
interpretation of § 2-9-111, MCA, as it applies to this case and
fromthe Court's refusal to address the constitutional issue before
it.
With regard to the immunity issue, I am not blind to the
importance of precedent. However, I cannot assent to the
application of this Court's precedents in the area of so-called
legislative immunity as it relates to this case. For the Court to
expand its previous holdings which were, in my view, legally
incorrect to begin with, to provide immunity to an employee who (if
the allegations herein are taken as true) rapes and sodomizes a
four-year-old special education student on the basis that the
employee was engaged in the lllawful
discharge of an official duty
associated with action by the legislative body" is beyond the
bounds of reason, legal or otherwise.
Finally, it is my view that the Court has an obligation to
address the equal protection issue which is before it. The
classifications which have resulted from the Court's immunity
rulings are troubling, at best, and may be constitutionally infirm.
I have not determined whether I believe those classifications can
meet the rational basis test. I am, however, convinced that it is
time for the Court as a whole to address the question. If it is
the Court's view that additional briefing or argument is needed,
the Court need only direct such a course of action. We should not
careen further down the immunity path without determining whether
we have been a party, through our interpretations of legislative
enactments, to depriving the citizens of Montana of their
constitutional rights.