file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
No. 99-091
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 9
298 Mont 28
993 P.2d 680
SANDRA RAHRER,
Plaintiff and Appellant,
v.
BOARD OF PSYCHOLOGISTS,
Department of Commerce,
State of Montana,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (1 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
Michael G. Alterowitz and Monte Jewell, Alterowitz Law Offices, P.C.;
Missoula, Montana
For Respondent:
G. Curtis Drake, Keller, Reynolds, Drake, Johnson & Gillespie, P.C.;
Helena, Montana
Submitted on Briefs: August 19, 1999
Decided: January 13, 2000
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
¶1.Dr. Sandra Rahrer filed an action against the Board of Psychologists, the Department of
Commerce, and the State of Montana (hereinafter referred to collectively as "Board") in
the Fourth Judicial District, Missoula County, for damages arising out of a contested case
hearing. The District Court issued an order changing venue to the First Judicial District,
Lewis and Clark County. The Board moved for and was granted summary judgment.
Rahrer appeals. We affirm.
¶2.Rahrer raises the following issues on appeal:
¶3. Whether the District Court erred in concluding that the Board of Psychologists,
Department of Commerce, and the State were immune from suit for causes of action
arising out of a contested case hearing?
1. ¶4. Whether the District Court erred in concluding that the Board was not liable as a
complaining party under § 37-1-308(2), MCA?
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (2 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
2. ¶5. Whether the District Court erred in concluding that Rahrer's claim for attorney
fees was premature?
FACTUAL BACKGROUND
¶6.Rahrer is a psychologist licensed by the Department of Commerce, Board of
Psychologists. From May 1993 to March 1994 Rahrer treated a three-year-old child whose
parents were involved in a divorce. An attorney representing the child's mother asked
Rahrer to prepare a report concerning her treatment of the child to be used by the child's
mother in a visitation settlement proceeding.
¶7.On June 6, 1994, the Board of Psychologists received a complaint concerning that
report. The Board of Psychologists issued a Notice of Proposed Board Action and
Opportunity for Administrative Hearing on May 19, 1995. Rahrer requested a hearing. A
contested case hearing was held on June 3-5, 1996, after which the hearing examiner
concluded that the Board of Psychologists had failed to prove that Rahrer had violated any
of the Board's rules of conduct.
¶8.Rahrer requested an award of attorney fees incurred as a result of the contested case
hearing. The hearing examiner observed that the Board failed to exercise "appropriate
caution" in evaluating the complaint and the Board's investigation of the complaint was
"grossly inadequate." However, he recommended that the Board deny Rahrer's request for
attorney fees because the failure to dismiss her case before the contested case hearing was
not unreasonable.
¶9.On November 18, 1996, Rahrer filed a petition for judicial review in the Fourth Judicial
District Court, Missoula County, in which she again sought attorney fees she had incurred
as a result of the contested case hearing. On May 16, 1997, Rahrer filed a separate action
in the Fourth Judicial District Court, Missoula County, seeking damages and attorney fees.
By stipulation, Rahrer's petition for judicial review was stayed pending the outcome of her
second action. Pursuant to another stipulation of the parties, the District Court changed the
venue for Rahrer's second action to the First Judicial District Court, Lewis and Clark
County. The Board moved for summary judgment on May 1, 1998. In an order dated
November 16, 1998, the District Court of Lewis and Clark County granted summary
judgment in favor of the Board. Rahrer appeals from this order.
ISSUE 1
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (3 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
¶10.Whether the District Court erred in concluding that the Board of Psychologists,
Department of Commerce, and the State were immune from suit for causes of action
arising out of a contested case hearing?
¶11.Article II, Section 18 of the Montana Constitution provides:
State Subject to Suit. The state, counties, cities, towns, and all other local government entities
shall have no immunity from suit for injury to a person or property, except as may be specifically
provided by law by a 2/3 vote of each house of the legislature.
In its comments accompanying the proposed text of Section 18, the Bill of Rights
Committee of the 1972 Constitutional Convention stated that its purpose was to abolish
"the archaic doctrine of sovereign immunity." Montana Constitutional Convention, Vol. II
at 637. By "sovereign immunity," the Committee meant the legal doctrine which "bars tort
suits against the state for negligent acts by its officials and employees." Montana
Constitutional Convention, Vol. II at 637. The Committee further stated that "all parties
should receive fair and just redress whether the injuring party is a private citizen or a
government agency." Montana Constitutional Convention, Vol. II at 637.
¶12.We have held that Article II, Section 18 abolished the doctrine of sovereign immunity.
See Noll v. City of Bozeman (1975), 166 Mont. 504, 534 P.2d 880. However, we have also
held that other immunities, separate and distinct from sovereign immunity, were not
affected by the adoption of Article II, Section 18. See State ex rel. Dept. of Justice v.
District Court (1976), 172 Mont. 88, 560 P.2d 1328. The plaintiffs in Department of
Justice filed separate complaints against the Attorney General, the Department of Justice,
and the State of Montana, among others, alleging that the defendants had acted
maliciously and negligently in filing criminal charges against them. The defendants sought
a writ of supervisory control, which we granted, directing the District Court to dismiss the
complaints. In granting the writ, we held that Article II, Section 18 did not abolish the
common law doctrine of prosecutorial immunity. Department of Justice, 172 Mont. at 92,
560 P.2d at 1330.
¶13.In concluding that all of the defendants were immune, we extended the doctrine of
prosecutorial immunity to cover not only the personal liability of prosecutors, but also the
vicarious liability of the State and the Department of Justice. Department of Justice, 172
Mont. at 93, 560 P.2d at 1330. We justified this extension on public policy grounds: the
objectives sought by granting immunity to individual officers-free, independent, and
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (4 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
untrammeled action-would be seriously impaired or destroyed if we did not extend
immunity to the state and its agencies. Department of Justice, 172 Mont. at 92-93, 560
P.2d at 1330 (citing Creelman v. Svenning (Wash. 1966), 410 P.2d 606, 608).
¶14.In Koppen v. Board of Medical Examiners (1988), 233 Mont. 214, 759 P.2d 173, we
recognized the common-law doctrine of "quasi-judicial" immunity as a "logical
descendent of prosecutorial immunity" and extended absolute immunity to the State and
its executive agencies not involved in the criminal justice process. Koppen, 233 Mont. at
219, 759 P.2d at 176. The plaintiffs in Koppen filed suit against the Board of Medical
Examiners and the State alleging that the Board was negligent in failing to limit or revoke
the license of their physician, Dr. Kaufman. The plaintiffs claimed that the Board had
received complaints about Dr. Kaufman's fitness to practice medicine, but had failed to
respond to those complaints. We affirmed the dismissal of their suit, holding that the
Board and the State were immune from suit under the doctrine of quasi-judicial immunity.
¶15.In recognizing the quasi-judicial immunity of the Board and the State, we cited with
approval Butz v. Economou (1978), 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895. The
plaintiff in Butz had brought various causes of action against federal officials in the
Department of Agriculture arising out of an administrative complaint proceeding. The U.
S. Supreme Court held that executive officials performing functions analogous to those of
a judge and a prosecutor-e.g., initiating, presenting, and adjudicating cases-were
absolutely immune from suit. The Court concluded that, in light of the many safeguards
which checked their actions, the benefits of immunity for agency officials functioning in
adjudicatory capacities, such as maintaining their independent judgment and enabling
them to adjudicate cases on the basis of a complete record, outweighed the risk that they
would act unconstitutionally. Butz, 438 U.S. at 512-17, 98 S. Ct. at 2914-16.
¶16.Applying the doctrine of quasi-judicial immunity in Koppen, we observed that "the
discretion vested in the Board to weigh the information relative to Dr. Kaufman rendered
it a quasi-judicial body." Koppen, 233 Mont. at 219, 759 P.2d at 176. In this regard, we
noted that, similar to the individual defendants in Butz, the Board's action was subject to
safeguards such as the notice and hearing requirements of the Montana Administrative
Procedure Act as well as judicial review. Koppen, 233 Mont. at 219, 759 P.2d at 176. We
concluded that because the Board was performing a quasi-judicial function, the Board was
absolutely immune from claims arising out of its inaction. Koppen, 233 Mont. at 219, 759
P.2d at 176.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (5 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
¶17.In subsequent opinions, we have clarified our holding in Koppen. In State ex rel.
Division of Workers' Compensation v. District Court (1990), 246 Mont. 225, 805 P.2d
1272, we held that the State and the Division of Workers' Compensation were not immune
from suit for their admitted negligence in renewing the privilege of an employer to self-
insure because renewing the self-insurance status of an employer was not a discretionary
quasi-judicial act. Division of Workers' Compensation, 246 Mont. at 228-34, 805 P.2d at
1274-78. In State Board of Dentistry v. Kandarian (1991), 248 Mont. 444, 813 P.2d 409,
we held that the Board of Dentistry was not immune from a tort suit arising out of its
decision to seek an injunction against a nonlicensee because, unlike a prosecutor, the
Board's decision was not checked by procedural safeguards such as probable cause
investigation, notice, and swearing under oath. Kandarian, 248 Mont. at 448, 813 P.2d at
412. In Newville v. State Department of Family Services (1994), 267 Mont. 237, 883 P.2d
793, we held that the Department of Family Services was not immune from a suit arising
out if its acts of approval for adoption, foster placement, and investigation of child abuse
reports because those acts were not part of a contested case hearing or other adversarial
process. Newville, 267 Mont. at 269, 883 P.2d at 812.
¶18.Rahrer asserts that the Board is not entitled to act recklessly in investigating a
complaint, persist in investigating baseless allegations, and fail to provide its witnesses
with adequate information in a contested case hearing. Rahrer claims that these are
examples of the negligent performance of ministerial duties for which state agencies have
not been granted immunity under our decision in Division of Workers' Compensation. The
District Court concluded that the Board was immune from suit for actions arising out of a
contested case hearing held pursuant to the Montana Administrative Procedure Act.
¶19.Rahrer's reliance on Division of Workers' Compensation is based on a
misunderstanding of that opinion. In Division of Workers' Compensation, we held that the
Division was not entitled to immunity for its negligent processing of an employer's request
for self-insured status because the Division had failed to undertake a mandatory review
and the Division was not acting in a quasi-judicial capacity. Division of Workers'
Compensation, 246 Mont. at 230-32, 805 P.2d at 1276-77. Pursuant to the administrative
rules governing self-insured election, the Division could only grant self-insured status to
employers who demonstrated financial stability. Division of Workers' Compensation, 246
Mont. at 232, 805 P.2d at 1277. However, the Division had failed to determine whether
the employer was eligible before granting the employer self-insured status. More
significantly, in approving applications for self-insurance, the Division was not acting in a
quasi-judicial capacity. The failure of the Division to adequately review the employer's
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (6 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
application for self-insurance status did not take place during an adversarial resolution of a
dispute or controversy. Division of Workers' Compensation, 246 Mont. at 230, 805 P.2d at
1276.
¶20.The actions of the Board at issue here are not analogous to the actions complained of
in Division of Workers' Compensation. The actions of the Board in determining whether to
pursue the complaint against Rahrer, how to investigate that complaint, and how to
prepare its witnesses for a hearing on that complaint are clearly the result of discretionary
decisions made during the adjudication of a dispute or controversy. We note that under §
37-17-202(2)(b), MCA, the Board "may conduct hearings upon complaints." Moreover,
there is no dispute that the decisions complained of took place in the context of a contested
case hearing under the Montana Administrative Procedure Act. Initiating, investigating,
and presenting a case pursuant to the Montana Administrative Procedure Act involves
precisely the types of decisions for which we have granted the state and its agencies quasi-
judicial immunity under Koppen. Accordingly, we hold that the District Court did not err
in concluding that the Board was entitled to quasi-judicial immunity.
ISSUE 2
¶21.Whether the District Court erred in concluding that the Board was not liable as a
complaining party under § 37-1-308(2), MCA?
¶22.Under § 37-1-308(1), MCA, a person, government, or private entity may submit a
written complaint to the Board. Section 37-1-308(2), MCA, provides that "[a] person or
private entity, but not a government entity, filing a complaint under this section in good
faith is immune from suit in a civil action related to the filing or contents of the complaint."
¶23.Rahrer asserts that the Board is liable under § 37-1-308(2), MCA. Although Rahrer
concedes that the Board did not file the complaint, Rahrer insists that the Board assumed
the role of complainant by continuing to pursue the complaint after "it was apparent that
the complaint lacked any basis in law or fact." The District Court granted summary
judgment in favor of the Board.
¶24.Assuming, arguendo, that § 37-1-308(2), MCA, creates a cause of action against a
government entity, it is clear that it would be limited to government entities that file
complaints in bad faith. Rahrer concedes that the Board did not file a complaint against
her. It is also clear that a cause of action under § 37-1-308(2), MCA, would be limited to
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (7 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
actions related to the filing or contents of a complaint. Rahrer has not asserted a cause of
action related to either the filing or the contents of the complaint. Instead, she is claiming
that the Board is liable for continuing to pursue the complaint. Accordingly, we conclude
that the Board is not liable under § 37-1-308(1), MCA.
ISSUE 3
¶25.Whether the District Court erred in concluding that Rahrer's claim for attorney fees
was premature?
¶26.Rahrer has sought attorney fees and costs incurred in her defense of the contested case
hearing in a separate action before the Fourth Judicial District Court, Missoula County. In
an order dated February 6, 1997, the District Court in the aforementioned matter stayed
the proceedings pending the resolution of the claims which are now before us.
Accordingly, we agree with the District Court that Rahrer's claim for attorney fees and
costs should be pursued in connection with her pending action in Missoula County. Upon
removal of the stay in the Fourth Judicial District, Rahrer will be free to pursue her claim
against the Board for attorney fees and costs.
¶27.Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
Justice James C. Nelson specially concurs.
¶28.I concur with our decision as to Issues 2 and 3. I concur in our opinion as to Issue 1
because the trial court and this Court have correctly applied the doctrine of quasi-judicial
immunity as created by and recognized in our case law. That is not to say, however, that I
agree with that jurisprudence. In point of fact, I do not. In my view our creation of the
doctrine of quasi-judicial immunity is in direct violation of Article II, Section 18 of the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (8 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
Montana Constitution which abolished governmental immunity from suit absent a 2/3 vote
of the legislature. See Koppen v. Board of Medical Examiners (1988), 233 Mont. 214, 220-
24, 759 P.2d 173, 176-79 (Sheehy, J., concurring and dissenting); Trout v. Bennett (1992),
252 Mont. 416, 431-32, 830 P.2d 81, 90 (Trieweiler, J., concurring and dissenting).
¶29.Article II, Section 18 of the Montana Constitution provides:
The state, counties, cities, towns, and all other local governmental entities shall have no
immunity from suit for injury to a person or property, except as may be specifically
provided by law by a 2/3 vote of each house of the legislature.
We have held that although this provision abolished sovereign immunity, it did not abolish
"prosecutorial immunity." Dept. of Justice v. District Court (1976), 172 Mont. 88, 92, 560
P.2d 1328, 1330 (hereinafter "DOJ") (holding that prosecutors acting within the scope of
their duties are "absolutely immune" from civil liability). However, we did not limit
prosecutorial immunity to public employees, but rather we extended it to the Department
of Justice and the State. DOJ, 172 Mont. at 92, 560 P.2d at 1330.
¶30.Our extension of prosecutorial immunity to public entities appears to be directly at
odds with both the express language and the purpose of Section 18. Presumably, because
we held that common-law prosecutorial immunity was not waived by Section 18, we were
free to exercise our common-law powers to extend it to governmental agencies. In doing
so, we referred to Creelman v. Svenning (Wash. 1966), 410 P.2d 606, in which the
Washington Supreme Court stated:
The public policy which requires immunity for the prosecuting attorney, also requires
immunity for both the state and the county for acts of judicial and quasi-judicial officers in
the performance of the duties which rest upon them; otherwise, the objectives sought by
immunity to the individual officers would be seriously impaired or destroyed.
Creelman, 410 P.2d at 608 (emphasis added).
¶31.In Koppen, we concluded that the doctrine of quasi-judicial immunity (a "logical
descendant of prosecutorial immunity") precluded a suit for tort damages against the
Board of Medical Examiners and the State. Koppen, 233 Mont at 219-20, 759 P.2d at 176.
In Koppen, the District Court had held that the Board was immune under § 2-9-112, MCA,
which grants immunity to the State and other governmental units from acts of the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (9 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
judiciary. Section 2-9-112, MCA, provides, "judiciary includes those courts established in
accordance with Article VII of The Constitution of the State of Montana." (Emphasis
added.) The District Court inferred that by using the word "includes," the legislature had
intended to grant immunity to administrative agencies exercising quasi-judicial authority.
¶32.On appeal, we affirmed the District Court's conclusion that the Board and the State
were immune from suit, but on different grounds. Citing DOJ, we held that Section 18
only abolished sovereign immunity, which is separate and distinct from prosecutorial or
quasi-judicial immunity. In doing so, we observed:
The Bill of Rights Committee of the 1972 Constitutional Convention stated in its
Comments accompanying the proposed text of Section 18 that its purpose was to abolish
"the archaic doctrine of sovereign immunity." 2 Mt. Leg. Council, Montana Constitutional
Convention, 1971-72, 637. In reporting Section 18 to the full convention for approval,
Delegate Murray of the Bill of Rights Committee stated, "We feel that the doctrine of
sovereign immunity, which we are attempting to do away with by this particular provision,
really means that the king can do whatever he wants but he doesn't have to pay for it; and
we'd like to do away with that doctrine." 5 Mt. Leg. Council, Montana Constitutional
Convention, 1971-72, 1760.
Koppen, 233 Mont. at 218, 759 P.2d at 175. We then cited Butz v. Economou (1978), 438 U.S. 478, 98
S. Ct. 2894, 57 L. Ed. 2d. 895, for the proposition that the imposition of liability would "distort" the
Board's exercise of its discretion when fulfilling its quasi-judicial role. Koppen, 233 Mont. at 219, 759
P.2d at 176.
¶33.In dissent, Justice Sheehy, joined by Justice Hunt, noted that the Butz court was
deciding the personal liability of government agents not the liability of the government
itself. Koppen, 233 Mont. at 222, 759 P.2d at 178. Justice Sheehy observed that § 2-9-305
(1), MCA, already immunizes public employees from civil liability for their actions taken
within the course and scope of their employment. Justice Sheehy stated:
[T]he liability of the state here should be decided on principles other than cases [such as
Butz] applying only to personal liability. Here, the state, by constitution and by statute, is
not immune from suit. The state is liable to persons who suffer injuries proximately
caused by state governmental torts as a matter of public policy and as a constitutional right.
It is, therefore, quite illogical for the majority to hold that the state is exempt from suit in
this case because of the possibility that the Board's discretion would be subject to
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (10 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
distortion by considerations of possible litigation against the state arising from the actions
of the Board of Medical Examiners. The state, without question, has accepted that risk in
(1)
assuming liability, and in subjecting itself to suit.
Koppen, 233 Mont. at 223, 759 P.2d at 178-79.(2)
¶34.Exercising our authority to expound on the common-law principle of quasi-judicial
immunity, we have held that agencies are not absolutely immune from tort claims. In order
to invoke quasi-judicial immunity, an agency must have been performing a quasi-judicial
function as opposed to a purely ministerial task. See State ex rel. Workers' Comp. v.
District Court (1990), 246 Mont. 225, 805 P.2d 1272. A public agency cannot invoke
quasi-judicial immunity if it put itself in the role of litigant or advocate and not
adjudicator. See State, Bd. of Dentistry v. Kandarian (1991), 248 Mont. 444, 448, 813
P.2d 409, 412 (observing that, although quasi-judicial immunity and prosecutorial
immunity are doctrinally similar, agency bringing suit in district court is not checked by
procedural safeguards inherent in the prosecutorial system such as probable cause
investigation and swearing under oath).
¶35.There seems to be three premises for the judicial extension of immunity to agencies
functioning in quasi-judicial roles: (1) prosecutorial and sovereign immunity are
doctrinally distinct; (2) Section 18 only abolished sovereign immunity; and (3) the
extension of prosecutorial immunity to quasi-judicial state entities reflects sound policy.
See DOJ, 172 Mont. at 92-93, 560 P.2d at 1330. I will examine each of these premises, in
turn.
¶36.Prosecutorial immunity and sovereign immunity are "different concepts and are
supported by different considerations of public policy." DOJ, 172 Mont. at 92, 560 P.2d at
1330. Unfortunately, the DOJ court did not analyze this distinction, nor did it point to any
authorities. The doctrine of sovereign immunity is comprised of two separate principles.
The first principle is that a state is immune from suit in its own courts without its consent.
See, e.g., Peretti v. State (1989), 238 Mont. 239, 777 P.2d 329. The second principle is
that a state is immune from liability for the torts committed by its officers, agents, and
employees. 1 Civil Actions Against State and Local Governments § 1.1 (Jon L. Craig ed.,
2nd ed. 1992).
¶37.Several fundamental purposes are served by the doctrine of sovereign immunity.
Sovereign immunity shields the state from the burden of defending lawsuits, protects the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (11 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
state treasury, protects the operation of government from interference by the judiciary and
private citizens, and permits governmental officials to exercise discretion in carrying out
their responsibilities. Civil Actions, § 1.2 .
¶38.A theory of official personal immunity also exists. "Whether based on common law or
statute, the general rule is that public officials acting within the scope of their authority are
absolutely immune from tort liability for exercising judicial or legislative functions [and]
enjoy a qualified immunity from tort liability for exercising executive or administrative
functions." Civil Actions, § 4.1. "The doctrine of official immunity rests on the public
policy consideration that effective government requires officers and employees who are
free to act independently, without deterrence and intimidation by the threat of personal
liability and vexatious lawsuits." Civil Actions, § 4.2.
¶39.It appears that official ("prosecutorial" or "quasi-judicial") personal immunity is
doctrinally distinct from sovereign immunity--the latter immunity protects state entities,
while the former protects state officers personally. Here, sovereign immunity being
applicable to the Board as a state entity, quasi-judicial immunity should not apply to
protect it from Rahrer's suit.
¶40.Article II, Section 18 of the Montana Constitution did not abolish prosecutorial
immunity. DOJ, 172 Mont. at 92, 560 P.2d at 1330. Section 18 specifically states that "[t]
he state, counties, cities, towns, and all other local governmental entities shall have no
immunity from suit." (Emphasis added.) The Bill of Rights Committee of the 1972
Constitutional Convention stated in its comments accompanying the proposed text of
Section 18 that its purpose was to abolish "the archaic doctrine of sovereign immunity."
Montana Constitutional Convention, Committee Proposals, Vol. II at 637 (hereinafter
"Proposals"). By sovereign immunity, the Committee meant the doctrine which "bars tort
suits against the state for negligent acts by its officials and employees." Proposals, at 637.
The Committee stated that "all parties should receive fair and just redress whether the
injuring party is a private citizen or a governmental agency." Proposals, at 637 (emphasis
added).
¶41.The conclusion that Section 18 only abrogated sovereign immunity is probably correct
and does correspond with the language of this Section. The Committee did not claim that
Section 18 would abrogate any pre-existing common-law personal immunities for public
officials or employees. However, we have made an end-run around Section 18 by
extending theories of personal immunity (e.g., prosecutorial or quasi-judicial immunity) to
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (12 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
state entities. Again, as noted above, the Board, as a state entity is not protected by
personal, quasi-judicial immunity; it is covered by sovereign immunity which has been
abrogated by Section 18.
¶42.The extension of prosecutorial immunity to quasi-judicial state entities reflects sound
policy. See DOJ, 172 Mont. at 92-93, 560 P.2d at 1330. The underlying assumption of this
premise is that this Court has the authority to extend prosecutorial or quasi-judicial
immunity to state entities. This assumption is highly questionable given the language of
Section 18. As discussed above, Section 18 waives the immunity of state entities. Section
18 contains two qualifications to this general waiver: (1) the immunity is limited to suits
for "injury to a person or property," and (2) the legislature is granted the authority to
provide immunity to state entities by a 2/3 vote of each house. Section 18 does not
expressly contain a reservation of immunity for state entities that are performing
prosecutorial or quasi-judicial functions.
¶43.The assumption that this Court has the authority to extend prosecutorial immunity to
state entities is also questionable given the purpose or legislative history of Section 18.
The assertion that the framers of Section 18 did not intend to abrogate prosecutorial
immunity might be accurate. However, it is perfectly clear that the framers did intend to
do away with sovereign immunity--the doctrine which "bars tort suits against the state for
negligent acts by its officials and employees." The Bill of Rights Committee unanimously
voted to adopt this provision because the doctrine "no longer has a rational justification in
law" and because it is "repugnant to the fundamental premise of the [sic] American
justice: all parties should receive fair and just redress whether the injuring party is a
private citizen or a governmental agency." Proposals, at 637. By extending prosecutorial
or quasi-judicial immunity to state entities, this Court has frustrated the very purpose of
Section 18--i.e., "bar[ring] tort suits against the state for negligent acts by its officials and
employees."
¶44.Accordingly, while I agree that our opinion correctly reflects the state of the law as
regards the application of quasi-judicial immunity to the Board in this case, I am also of
the opinion that our jurisprudence supporting this application is fundamentally flawed and
is, in fact, in violation of Article II, Section 18 of the Montana Constitution. Under the
circumstances I will look forward to the case when we are accorded the opportunity to
revisit this issue.
/S/ JAMES C. NELSON
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (13 of 14)4/5/2007 4:31:17 PM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm
Justice Terry N. Trieweiler concurs with the foregoing special concurrence.
/S/ TERRY N. TRIEWEILER
1. Although Justice Sheehy's dissent is compelling, it might have been more accurate to say that the
people of Montana, rather than the state, have decided through the enactment of Section 18 that they
would prefer to subject the state to suit at the cost of potentially "distorting" the decision making process
of executive agencies.
2. See also Trout, 252 Mont. at 431-32, 830 P.2d at 90 (Trieweiler, J., concurring and dissenting) ("To
my knowledge, the Montana Legislature has never voted to impose quasi-judicial immunity by a 2/3
vote or by any other vote. Therefore, to judicially create such immunity contravenes an express
provision of the Montana Constitution. . . .").
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-091_(01-13-00)_Opinion.htm (14 of 14)4/5/2007 4:31:17 PM