No. 93-451
IN THE SUPREME COURT OF THE STATE OF MONTANA
DAVID K. CLARK, Missoula County
Justice of the Peace,
Petitioner and Respondent,
-vs-
ANN MARY DUSSAULT, BARBARA EVANS and
JANET STEVENS, Missoula County Commissioners. JUL 1 2 1994
~espondentsand ~ ~ ~ & l a n t s ,
and C L E W OF 3UBEXMiE COURL
STATE OF :ulDi\iTANA
ANNE P. GUEST,
Intervenor and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Intervenor and Appellant:
Larry Jones, Attorney at Law, Missoula, Montana
For Petitioner and Respondent:
Stacey Weldele-Wade; Milodragovich, Dale & Dye,
Missoula, Montana
For Respondents and Appellants:
Nancy K. Moe; Ellingson & Moe, Missoula, Montana
Michael W. Sehestedt, Deputy County Attorney,
Missoula, Montana
For Amici Curiae:
Jim Nuqent, City Attorney, City of Missoula,
Missoula, Montana (Missoula and League of Cities
and Towns)
Submitted on Briefs: May 23, 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Anne Guest (Guest) and the Missoula County Board of
commissioners (County Commissioners) appeal from the grant of
summary judgment to David Clark (Clark) by the Fourth Judicial
District Court, Missoula County. The summary adjudication was
based on the court's conclusion that Clark was not bound by the
grievance procedures applicable to county employees because of his
inherent authority as Justice of the Peace and the doctrine of
judicial immunity. Clark cross-appeals the court's denial of his
motion to amend the judgment to add an award of attorneys' fees.
We reverse the court's grant of summary judgment and affirm its
denial of the motion to amend the judgment.
Guest was employed by Missoula County as office manager for
the Missoula County Justice Court (Justice Court). The Justice
Court is comprised of Courts 1 and 2, presided over by Clark and
Michael Morris (Morris), respectively. In May of 1991, Clark
presented a "supervisory plan1' to Guest, setting forth new
guidelines and priorities to be followed by her and the clerical
staff in Court 1. Morris declined to implement the plan in court
2.
Several weeks later, Clark felt that Guest was not attempting
to institute the desired changes and verbally reprimanded her.
Guest submitted a six-page memorandum responding to the verbal
reprimand and, while Clark was on vacation during the last part of
June, detailed her role as manager under the supervisory plan to
the clerical staff.
Early in July, County Commissioners Ann Mary Dussault
(Dussault), Barbara Evans (Evans) and Janet Stevens (Stevens)
requested Clark to attend a meeting to address concerns raised by
his clerical staff. Before that meeting could be held, Clark
scheduled a meeting with his staff to resolve their differences.
Stevens and Dussault advised Clark that they would attend any such
meeting. Two meetings were held; one was attended by Dussault,
Stevens, Clark and his clerical staff, including Guest, and the
other by all three County Commissioners, Clark, members of the
Personnel Department, and Deputy County Attorney John Devore.
Subsequent to the meetings, Clark placed a written reprimand
in Guest's personnel file. In the reprimand, Clark stated that
Guest was insubordinate because she failed to implement the
supervisory plan, made unconscionable misrepresentations in her
six-page memorandum, and disrupted the clerical staff. He also
indicated that further disciplinary action was being contemplated.
Clark remained unhappy with Guest's implementation of his
supervisory plan. On August 12, 1991, he suspended Guest without
pay for seven days. Morris refused to acknowledge the suspension
and directed Guest to continue working. The Missoula County
Personnel Department also directed Guest to ignore the suspension
absent an agreement by both justices of the peace.
Guest filed a grievance to contest the suspension on August
16, 1991, pursuant to the Missoula County Personnel Policies Manual
(county Manual). She sought to have the notice of suspension and
all related documents removed from her file. A grievance hearing
before the County Commissioners was scheduled for December 19,
1991. The County Commissioners refused Clark's request to recuse
themselves from hearing the grievance.
On December 17, Clark filed separate petitions for a writ of
prohibition and an alternative writ of prohibition requesting the
District Court to order the County Commissioners to stop
interfering with his operation of Court 1. The District Court
immediately issued the alternative writ, cancelling the grievance
hearing scheduled two days later. The court also ordered the
County Commissioners to appear at a January lo, 1992, hearing and
show cause why a permanent writ should not be issued. The show
cause hearing subsequently was continued and, apparently, never
held.
In January of 1992, Guest filed a motion to intervene in the
District Court proceeding pursuant to Rule 24(a), M.R.Civ.P. She
argued that she was entitled to a hearing regarding Clark's
disciplinary action under notions of due process and that her
participation in the litigation was necessary to protect that
interest in light of the court's cancellation of the grievance
hearing. Clark opposed the motion.
While Guest's motion was pending, Clark filed an amended
petition. In addition to the permanent writ of prohibition
previously requested, Clark sought declaratory relief. He
requested the court to determine that he had the inherent authority
to suspend Guest under 5 5 3-1-111 and 3-1-113, MCA, without
interference by the County Commissioners and that judicial
immunity, codified at 5 2-9-112(2), MCA, precluded Guest's
grievance. He also requested reimbursement of his attorneys' fees
and court costs.
On February 12, 1992, the District Court granted Guest's
motion to intervene. Shortlythereafter, the court issued an order
dissolving the alternative writ of prohibition and establishing
interim operating procedures for the Justice Court. Pursuant to
the order, Guest's employment as office manager continued, but only
in relation to the operation of Morris' court. The order
prohibited all contact between Clark and Guest.
Following the filing of stipulated facts in October of 1992,
Clark moved for summary judgment. Respondents and Guest opposed
the motion and, in November, filed separate cross-motions for
summary judgment. On May 10, 1993, the District Court granted
Clark's motion for summary judgment, concluding that he did not
have to comply with the grievance procedures because they
interfered with his inherent authority to ensure the proper
functioning of the Justice Court. The court also concluded that
judicial immunity precluded Guest from maintaining her grievance
against Clark.
The judgment entered by the court on its grant of summary
judgment did not award attorneys' fees and costs to Clark. He
subsequently moved the court to amend the judgment pursuant to Rule
59(g), M.R.Civ.P., to include such an award. The motion was
denied.
Guest and the Commissioners appeal the District Court's grant
of summary judgment to Clark. Clark cross-appeals, asserting error
in the court's denial of his motion to amend the judgment. The
Montana League of Cities and Towns and the City of Missoula appear
as amici curiae.
As a threshold matter, we address Clark's contention that this
case is moot because Guest left county employment in June of 1993.
A case may become moot for the purpose of appeal where it has lost
any practical importance to the parties because of a change in
circumstances prior to the appellate decision. Matter of T.J.F.
(1987), 229 Mont. 473, 475, 747 P.2d 1356, 1357. A party seeking
to establish that an issue raised on appeal is moot has a heavy
burden. Butte-Silver Bow Local Gov't v. Olsen (1987), 228 Mont.
77, 82, 743 P.2d 564, 567.
Pursuant to Clark's request for declaratory relief, the
District Court determined he had the inherent authority to
discipline and discharge court personnel without consulting with
the County Commissioners. It also determined that judicial
immunity barred the filing of a grievance against Clark, the final
step of which is a review by the County Commissioners. Guest's
departure from county employment does not negate the legal effect
of the District Court's judgment on Clark's relationship with the
Commissioners and, therefore, does not render the case moot as to
them.
Nor is this appeal moot as to Guest. She filed her grievance
when she was a county employee pursuant to the grievance provisions
of the County Manual. Clark cites no authority for his position
that Guest's right to maintain the grievance terminated when she
left county employment. Thus, the District Court's judgment
barring a grievance against Clark pursuant to judicial immunity
remains of practical importance to Guest. We conclude that this
case is not moot.
Did the District Court err by granting summary judgment to
Clark?
Our standard for reviewing a grant of summary judgment is the
same as that used by the District Court. Emery v. Federated Foods
(Mont. l993), 863 P.2d 426, 431, 50 St.Rep. 1454, 1456. We
determine whether there is an absence of genuine issues of material
fact and whether the moving party is entitled to judgment as a
matter of law. Minnie v. City of Roundup (1993), 257 Mont. 429,
431, 849 P.2d 212, 214. Here, summary judgment was based on
stipulated facts filed by the parties. Thus, we focus on the
court's conclusions supporting the summary adjudication. Our
review of legal conclusions is plenary. Steer, Inc. v. Deplt of
Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
Inherent Power
According to the District Court, a justice of the peace has
the inherent power to take steps necessary to ensure the proper
functioning of the justice court, including the authority to make
personnel decisions. Although the court recognized established
personnel procedures are to be followed Ifasmuch as possible," it
stated that a justice of the peace could exercise inherent power
when the established procedures failed, citing Hillis v. Sullivan
(1913), 48 Mont. 320, 137 P. 392, and its progeny.
Applying those principles to the case before it, the District
Court determined that Clark had adequately complied with the
personnel procedures in the County Manual by following the
progressive disciplinary steps. It concluded, however, that Clark
did not have to comply with the grievance procedures because they
were inconsistent with his inherent power.
Appellants contend the established personnel procedures that
Clark was required to follow before exercising his inherent
authority under Hillis included the grievance procedures. We
agree.
Justice courts undoubtedly possess the inherent power to do
those acts necessary to ensure their proper functioning. The
concept of inherent power is codified at 5 3-1-113, MCA, which
provides that when jurisdiction is conferred on a court or judicial
officer, all the means necessary for the exercise of that
jurisdiction are also given.
A court's exercise of inherent power, however, is not without
limitations. In Hillis, we determined that a court could exercise
its inherent power only when the established methods for addressing
the court's needs failed or when an emergency arose that was not
remedied by the established methods. illi is, 137 P. at 395. On
that basis, we concluded that a district court could not exercise
its inherent powers to obtain "attendants" necessary for the
court's functioning without first approaching the county
commissioners or the sheriff, who were statutorily required to
provide them. We subsequently have reiterated the limitations on
a court's exercise of its inherent power set forth in Hillis and
consistently have required that inherent power be exercised only
when established methods fail or an emergency arises. See Browman
v. Wood (1975), 168 Mont. 341, 543 P.2d 184; Board of Commissioners
v. Eleventh Jud. Dist. Court (1979), 182 Mont. 463, 597 P.2d 728;
Butte-Silver Bow Local Gov't v Olsen (1987), 228 Mont. 77, 743
.
P.2d 564.
The establishedmethods for disciplinary action against Guest,
a county employee, are contained in the County Manual. Progressive
disciplinary actions of oral reprimand, written reprimand or
warning notice, suspension, demotion and dismissal are required.
The disciplinary procedures also give the employee the right to
grieve and appeal all disciplinary actions imposed. Thus, under
Hillis, Clark was required to comply with these established
methods--including the grievance process--before he could exercise
the inherent powers of the court to suspend Guest.
Clark contends that a grievance hearing before the County
commissioners on Guest's suspension would violate the separation of
powers doctrine. According to Clark, the hearing would interfere
with the independence of the court by requiring him to be an
adverse witness against court personnel, allowing his decision on
personnel matters to be overruled by another branch of government,
and possibly requiring him to accept an employee he believes is
unsatisfactory.
We disagree that the separation of powers doctrine precludes
compliance with the grievance procedure. In Hillis, we determined
that the county commissionerst hiring of a clerk to assist the
district court did not violate the separation of powers. We
stated:
The separation of the government into three great
departments does not mean that there shall be Itnocommon
link of connection or dependence, the one upon the other
in the slightest degree" [citation omitted]: it means
that the powers properly belonging to one department
shall not be exercised by either of the others [citation
omitted].
Hillis, 137 P. at 395. In addition, the County Commissioners are
statutorily required to provide Clark with the clerical assistance
necessary to perform his judicial duties. Sections 3-10-103 and 7-
4-2401, MCA. Thus, the County Commissioners' hiring of Guest to
supervise Clark's clerical staff is consistent with the separation
of powers. We do not see how a grievance hearing before the County
Commissioners regarding Clark's suspension of Guest could violate
the separation of powers doctrine when the County Commissioners'
independent hiring of Guest as office manager of the Justice Court
is consistent with that doctrine. Furthermore, we are not
persuaded that the County Commissioners* hearing of a grievance
constitutes an exercise of authority belonging to the judicial
branch.
We hold that the District Court erred in concluding that
Clark's inherent power as a justice of the peace precluded a
grievance hearing before the County Commissioners.
Judicial Immunitv
The District Court concluded that Clark was entitled to
judicial immunity for his suspension of Guest under Mead v.
McKittrick (1986), 223 Mont. 428, 727 P.2d 517. Mead is
distinguishable, however, from the present case.
In Mead, a newly-elected district court judge terminated the
employment of his predecessor's personal secretary in order to hire
his own. We began our analysis by setting forth Montana's
codification of the common law doctrine of judicial immunity,
whereby a judge is nrimmune
from suit for damages arising from his
lawful discharge of an official duty associated with judicial
actions of the court.In Section 2-9-112, MCA. We observed that
district court judges have the exclusive authority to choose their
own secretaries because of the Indistinct and unique status" a
personal secretary occupies among court employees. Mead, 727 P.2d
at 519. We concluded that the appointment and removal of a
personal secretary--a Itkeycourt employeefn--was "judicial action"
a
to which judicial immunity applied pursuant to the statute. Mead,
727 P.2d at 519.
Here, Guest is not a "key employeeH under our Mead analysis.
Guest was not a member of Clark's personal staff over whom Clark
had exclusive appointment and removal authority, She was hired by
iss sod la County. Furthermore, Guest was hired as an office manager
for the combined Justice Court operations of ~usticesof the Peace
Clark and orris; as such, she was not the type of personal and
glkeygg
employee to both justices of the peace as the personal
secretary was to the district court judge in Mead. Nor were her
duties of the confidential and close nature of those generally
associated with a personal secretary.
Because Guest was not a "key employee,I* her suspension was not
a judicial act entitled to immunity under Mead. We conclude that
the District Court erred in applying judicial immunity to bar the
maintenance of a grievance hearing regarding the suspension.
As a result of our conclusions on inherent authority and
judicial immunity, no basis remains for the grant of Clark's motion
for summary judgment. Therefore, we hold that the District Court
erred in granting summary judgment in Clark's favor.
Did the District Court err by denying Clarkfsmotion to amend
the judgment to award attorneys* fees?
The District Court determined that Clark's Rule 59(g),
M.R. Civ-P., motion for attorneys1 fees was based on the County
Commissionersg alleged breach of a contract to pay such fees. The
court declined to rule on the merits of the breach of contract
claim, however, and determined that granting attorneys' fees on the
basis of the breach of contract claim was premature.
The amendment of a judgment is within the discretion of a
district court. See Marriage of Grounds/Coward (1993), 256 Mont.
397, 402-03, 846 P.2d 1034, 1037-38; Marriage of Vakoff (1992), 252
Mont. 56, 59-60, 826 P.2d 552, 554. Thus, we review the District
Court's refusal to amend the judgment for an abuse of discretion.
Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 475, 803
P.2d 601, 603-04.
Clark first contends that the District Court was required to
award attorneys' fees based on his breach of contract claim.
According to Clark, the County Commissioners entered into an
agreement to pay his attorneys' fees in November of 1991 and
refused to pay the fees incurred after March 24, 1992.
The record indicates, however, that Clark did not raise the
alleged breach of contract in his amended petition or motion for
summary judgment or, indeed, at any time prior to the court's entry
of summary judgment in his favor. While Clark made a passing
mention of the alleged agreement to pay attorneys' fees in his 22-
page Statement of Facts in Support of Motion for Summary Judgment,
the motion itself contained no claim for attorneys* fees based on
a breach of contract theory. That claim was first raised in
Clark's motion to amend the judgment; even then, it was supported
only by a postjudgment affidavit by Stacey Weldele-Wade (Weldele-
Wade), Clark's attorney, attached to his rewlv brief in support of
his motion to amend the judgment. We agree with the District Court
that it was premature to award attorneys' fees based on a breach of
contract claim that had not been raised and argued by the parties
in any meaningful or appropriate fashion.
Furthermore, it is clear that the summary judgment could not
be amended to award attorneys' fees because a factual dispute
exists regarding the scope of the parties1 agreement. Clark
contends that the attorneys' fees agreement was unconditional. The
County Commissioners argue that the agreement pertained only to
attorneys' fees incurred by Clark in regard to the grievance
hearing. On that basis, they assert that the agreement allowed
them to terminate the payments when it became clear that a
grievance hearing was unlikely. In her affidavit, Weldele-Wade
supported Clark's position and, to the extent that she stated the
County Commissioners approved payment of the attorneys' fees "up to
and through the date of the grievance hearing," the County
Commissioners' position as well.
Clark also argues that the District Court erred by failing to
award attorneys' fees under 5 5 2-9-305(4), 27-26-403, 7-4-2711(2)
and 25-10-701, MCA. These claims fail for the same reason as his
breach of contract claim. The statutes were not asserted as
grounds for an award of attorneys1 fees prior to the court's grant
of summary judgment and, indeed, Clark first raised his § 25-10-
701, MCA, claim in his reply brief in support of his motion to
amend the judgment, giving the County Commissioners no opportunity
to respond. Furthermore, Clark premised his 5 7-4-2711(2), MCA,
claim on the fact that he was unrepresented when the County
Commissioners contracted counsel for Guest. This fact is not of
record and, indeed, is disputed by the County Commissioners. For
these reasons, an award of attorneys' fees based on any of the
statutes is premature unless and until an appropriate record is
created and the parties have a full and fair opportunity to address
the issues.
Finally, Clark argues that he was entitled to attorneys' fees
because he Meffectivelyl'obtained a writ of prohibition when the
court declared that the grievance procedures were inconsistent with
his inherent power and successfully prosecuted his judicial
immunity claim. We decline to address these arguments based on our
disposition of the first issue.
In Montana, attorneys' fees generally will not be awarded
absent an authorizing contractual provision or statute. Joseph
Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 505, 605
P.2d 1107, 1112. Here, an adequate record has not been made
regarding Clark's breach of contract claim and the statutory claims
which might provide a basis for an award of attorneys' fees. Thus,
the resolution of such claims is premature. We hold that the
District Court did not abuse its discretion by denying Clark's
motion to amend the judgment to add an award of attorneys' fees.
We emphasize that nothing in this opinion should be construed as a
comment on the merits of, or to foreclose Clark from pursuing, the
breach of contract or statutory claims for attorneys' fees.
Reversed in part, af fimed in part, and remanded for the entry
of judgment consistent with this opinion.
n
We concur:
Justices
~usticeJames C. Nelson specially concurs.
While agreeing with our discussion of the other issues in this
case, I specially concur in the Court's opinion with respect to the
issue of judicial immunity. Our opinion on that issue is limited
to distinguishing Mead v. McKittrick (1986), 223 Mont. 428, 727
P.2d 517, inasmuch as the District Court grounded its decision in
that case, (although it appears that the District Judge favored
using the "functional approach" discussed below). Nevertheless, it
is my opinion that a dispositive decision handed down by the United
State's Supreme Court since Mead, mandates our decision here.
One of the key cases that we relied on in deciding Mead was
Forrester v. White (7th Cir. 1986), 792 F.2d 647. We cited that
case for the proposition that, "[Ilf an employee's duties are
intimately related to the functioning of the [judicial] process,
then personnel decisions regarding that employee are also part of
the process." Mead, 727 P.2d at 519. Following our decision in
Mead
I the Seventh Circuit's decision in Forrester was reversed on
appeal to the United States Supreme Court. See, Forrester v White
(1988), 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed. 2d 555.
As in the instant case, Forrester involved a personnel disputc
between an employee working for the court and a state court judge.
In Illinois, the presiding circuit judge had authority to hire
adult and juvenile probation officers, who were removable at his
discretion. The respondent state court judge hired Forrester as an
adult and juvenile probation officer and, some two years later,
promoted her to a position of increased supervisory
17
responsibilities. A year later the judge demoted Forrester to a
nonsupewisory position and, a few months after that, he fired her.
Forrester sued in federal district court alleging federal civil
rights violations. The jury found that the judge had engaged in
unlawful sex discrimination and awarded Forrester compensatory
damages. Subsequent to the verdict, the judge's motion for summary
judgment was granted on the ground that he was entitled to judicial.
immunity from a civil damages suit. Forrester, 484 U.S. at 222.
On appeal, a divided panel of the Seventh Circuit affirmed.
The Circuit Court held that the judge was entitled to absolute
judicial immunity, reasoning that Forrester performed functions
that were "inextricably tied to discretionary decisions that have
consistently been considered judicial acts,'# and that, absent the
judge being able to freely replace the employee, the quality of his
own decisions might decline. Forrester, 792 F.2d at 657.
The U.S. Supreme Court rejected the Circuit Court's analysis.
While acknowledging that immunity doctrines function to f~:c~
government officials from the threat of personal liability for
actions taken pursuant to their official duties and to encourage
such officials to make impartial, objective and irnaginativz
decisions without such decisions being skewed by an excess of
caution and by fear of suit, the Court also pointed out that,
running though the immunity cases is, "... a ufunctionalH approach
to immunity questions ...". Forrester, 484 U.S. at 224.
Under that approach, we examine the nature of the
functions with which a particular official or class of
officials has been lawfully entrusted, and we seek to
evaluate the effect that exposure to particular forms of
liability would likely have on the appropriate exercise
of those functions.
Forrester, 484 U.S. at 224,
While observing that judges, as a class, have long enjoyed a
comparatively sweeping, if not perfectly well-defined, form of
immunity, Forrester, 484 U.S. at 2 2 5 , the Court, nevertheless,
pointed out that, as in the instant case, ll[d]ifficultieshave
arisen primarily in attempting to draw the line between truly
judicial acts, for which immunity is appropriate...," (i.e. I*...
paradigmatic judicial acts involved in resolving disputes between
parties who have invoked the jurisdiction of a court1I) and Ir.. .
acts that simply happen to have been done by judges. "Here, as in
other contexts, immunity is justified and defined by the functions
it protects and serves, not by the person to whom it attaches.
Forrester, 484 U.S. at 227. (Emphasis added to last phrase).
I n F o r r e s t e r t h e Court drew t h e immunity l i n e between judicial
acts and "... the administrative, legislative, or executive
functions that judges may on occasion be assigned by law to
perform,It Forrester, 484 U.S. at 227, observing that
administrative decisions, while essential to the very functioning
of the courts, are not regarded as judicial acts. Forrester, 484
U.S. at 228.
Focusing on the facts in Forrester, the Court then concluded
that the state-court judge was acting in an administrative capacity
when he demoted and discharged Forrester. "Those acts -- like many
others involved in supervising court employees and overseeing the
efficient operation of a court -- may have been quite important in
19
providing the necessary conditions of a sound adjudicative system,"
[but] '.
I. were not themselves judicial or adjudicative."
Forrester, 484 U.S. at 229.
Without ruling on the question of whether qualified immunity
might be available to judges who make discretionary employment
decisions, and noting that absolute immunity is vtvstrong
medicine,
justified only when the danger of [officialst being] deflect[ed
from the effective performance of their duties] is very great,'"
the Court held that the state-court judge was not entitled 'cc
absolute immunity for his decisions to demote and discharge
Forrester. Forrester, 484 U.S. at 230.
In like fashion, the U.S. Supreme Court has on three occasion:
applied a "functional approach" in deciding absolute immunity
questions involving prosecutors. -
See Buckley v. Fitzsimmons
(1993), 61 USLW 4713, 113 S.Ct. 2606, 125 L.Ed.2d 209; Burns v.
Reed (lggl), 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547; and
Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d
128.
Accordingly, the functional approach to absolute immunity
questions is firmly rooted in the cases decided by the U.S. Supreme
Court and, in my view, is binding precedent on this Court. Under
the functional approach, it is the nature of the function
performed, not the identity of the actor who performs it, that
drives immunity analysis.
In the instant case, Judge Clark was not involved in
"paradigmatic judicial acts involved in resolving disputes between
parties who had invoked the jurisdiction of a court." We was, in
fact, performing the very same functions -- supervising court
employees and overseeing the efficient operation of a court -- that
the Court in Forrester found to be neither judicial nor
adjudicative. Judge Clark was acting in an administrative capacity
when he disciplined Guest, and, under Forrester, he is not entitled
to absolute judicial immunity from suit.
On appeal Judge Clark argues that Forrester is inapplicable
because 5 2-9-112(2), MCA, grants immunity from suit to members of
the judiciary where the performance of the official duty at issue
is wassociatedM with "judicial actions of the court.'* Section 2-
9-112(2), MCA. Judge Clark's argument, however, is erroneously
premised on his conclusion that disciplining an employee is a
14judicialaction.I1 Clearly, under Forrester, it is not. Such an
action is administrative, and acts Irassociatedt1with the
performance of an administrative action of the court are no more
clothed with statutory immunity under Montana law than are such
acts clothed with absolute immunity under the functional approach.
adopted in the federal case law. Accordingly, S 2-9-112(2), MCA,
supports, rather than conflicts with, the application of the
functional approach.
As with the Court's decision in Forrester, I express no
opinion on the applicability of the doctrine of qualified immunity
to Judge Clark's actions in this case. It is clear, however, that
in disciplining Guest, he was performing an administrative, rather
than a judicial or adjudicative function, and that under both the
functional approach and under § 2-9-112 (2), MCA, Judge Clark is net.
entitled to absolute judicial immunity from suit.
Accordingly, I specially concur with the Court's decision on
the immunity issue and concur with its discussion on all other
issues.
Justice Terry N. Trieweiler concurs in the foregoing special
-
concurrence.
July 12, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Robert Deschamps, 111, County Attorney
Michael W. Sehestedt, Dep. County Attorney
Missoula County Courthouse
Missoula, MT 59802
Lany Jones
Attorney at Law
P.O. Box 8108
Missoula. MT 59807
Stacey Weldele-Wade
MILODRAGOVICH, DALE & DYE
P.O. Box 4947
Missoula, MT 59806-4947
Nancy K. Moe
Attorney at Law
P.O. Box 9198
Missoula, MT 59807
Jim Nugent
City Attorney, City of Missoula
435 Ryman
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA