No. 88-493
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
VICKI PETERSON,
Plaintiff and Appellant,
-vs-
GREAT FALLS SCHOOL DISTRICT NO. 1 and A,
CASCADE COUNTY, MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Cameron Ferguson; Hartelius, Ferguson & Baker,
Great Falls, Montana
For Respondent :
J. David Slovak; Ugrin, Alexander, Zadick & Slovak,
Great Falls, Montana
Submitted on Briefs: Feb. 9, 1989
Decided: MaY 12, 1 9 8 9
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Filed:
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Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Vicki Peterson appeals the July 20, 1988 order of the
Eighth Judicial District, Cascade County, granting the
defendant-respondent's motion for summary judgment. The
District Court found Peterson's cause of action against the
school district is barred by 5 2-9-111, MCA, and recent
decisions interpreting that statute. We affirm the order of
the District Court.
Peterson was terminated from her employment as a
custodian with the Great Falls School District Number 1 and A
(District) in May of 1984. According to the complaint, the
basis for the termination was Peterson's alleged refusal, for
safety reasons, to empty 55 gallon trash drums into a
dumpster. Prior to her termination, Peterson alleges she
attempted to have the District change her duties so she would
not be required to lift and empty these containers. The
answer indicates the District declined to change her duties,
allegedly directing her to obtain assistance in emptying the
containers. When Peterson later refused to empty the 55
gallon drums, her employment was terminated. The termination
was carried out by an administrative assistant employed by
the District. Peterson then brought this action for wrongful
discharge alleging the District's requirement that she empty
the 55 gallon containers created an unsafe work place and
violated a Great Falls city ordinance prohibiting the use of
5 5 gallon drums for garbage purposes. In an amended answer,
the District raised legislative immunity as an affirmative
defense, citing § 2-9-111, MCA. Section 2-9-111, MCA,
provides :
Immunity from suit for legislative acts
and omission. (1) As used in this
section:
(a) the term "governmental entity"
includes the state, counties,
municipalities, and school districts;
(b) the term "legislative body"
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 from suit
for damages arising from the lawful
discharge of an official duty associated
with the introduction or consideration of
legislation or action by the legislative
body.
(4) The immunity provided for in
this section does not extend to any tort
committed by the use of a motor vehicle,
aircraft, or other means of
transportation.
The District then moved for summary judgment based upon
legislative immunity. The District Court granted the motion
for summary judgment. On appeal of that order the appellant
presents the following two issues:
1. Does § 2-9-111, MCA, provide Great Falls School
District Number 1 and A immunity for the act of its
administrative assistant in terminating Vicki Peterson?
2. Does 5 2-9-111, MCA, violate Vicki Peterson's right
to full legal redress guaranteed by Article 11, sec. 16, of
the Montana Constitution?
In her first issue, Peterson contends that the act of
terminating her was an administrative action, not a
legislative action and therefore the immunity granted in
5 2-9-111, MCA, is not applicable to this case. However, we
find the question of what immunity is provided may be
answered by simply examining the plain meaning of the words
used in 5 2-9-111, MCA. W. D. Construction, Inc. v. Board of
County Commissioners of Gallatin County (1985), 218 Mont.
348, 707 P.2d 1111. While the title of the statute infers
that the immunity granted is for legislative acts or
omissions, the actual language employed in defining and
granting the immunity is much broader. Subsection (2) (the
primary enabling subsection) grants immunity to a
governmental entity for an act or omission of its legislative
body. Further, this immunity applies to the acts or
omissions of members, officers, or agents of those
legislative bodies. Section 2-9-11 (2), MCA. Subsection
(1)(a) expressly includes school districts in the definition
of governmental entities, and subsection (1) (b) includes
school boards under the term legislative body. Subsection
(3) provides that such immunity to the aforementioned
members, officers, or agents of a legislative body is for
their "lawful discharge of an official duty associated with
the introduction or consideration of legislation - action -
or by
- legislative -
the body. "
(Emphasis added. ) Section
2-9-11 3 , MCA. The only specific limitation on this
governmental immunity is found in subsection (4) which
provides that this immunity "does not extend to any tort
committed by the use of a motor vehicle, aircraft, or other
means of transportation." Section 2-9-111(4), MCA.
Based upon the plain language of the statute and case
law interpreting the statute, the court found that the action
of the legislative body need not be legislative in nature to
afford immunity. Citing W. D. Construction v. Board of
County Commissioners of Gallatin County, supra; Barnes v.
Koepke (Mont. 1987), 736 P.2d 132, 44 St.Rep. 810; and Bieber
v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St.Rep.
1218. Recently in the Bieber case we upheld the granting of
summary judgment in a wrongful discharge case involving
§ 2-9-111, MCA. There a county commissioner terminated a
county road worker for damaging county equipment. The other
county commissioners later ratified this termination. On
appeal, we held that § 2-9-111, MCA, provides immunity to the
county commissioners and the individual commissioner who
lawfully discharges an official duty of that legislative
body.
Comparing the Bieber case with the facts in this case,
we find the only differences are that the governmental entity
in this case is a school board, rather than the county
commissioners, and that the party performing the act is an
agent/employee of the legislative body, rather than a member.
The statute clearly extends immunity coverage to school
districts, to the school boards governing those school
districts and to agents of those school boards. Further,
school districts have the authority and duty to hire, retain
or dismiss custodians pursuant to § 20-3-324(2), MCA. The
administrative assistant, as an agent of and on behalf of the
school board, legitimately exercised this authority when he
discharged Peterson. The discharge was ratified by the
school board at its next regularly scheduled meeting. Where
an agent performs an act which is later ratified by their
principal, that act is considered an action of the principal.
Restatement of Agency 2d, § 218.
The District Court properly interpreted § 2-9-111, MCA,
as providing immunity from suit for the Great Falls School
District 1 and A, for the action of its agent in executing an
official duty of the School District in discharging Peterson.
Since there were no material issues of fact and the defendant
was immune from suit for the alleged cause of action as a
matter of law, the court correctly granted the defendant's
motion for summary judgment. Evans v. Montana National Guard
(Mont. 1986), 726 P.2d 1160, 1161, 43 St.Rep. 1930, 1932.
Peterson also argues that the granting of immunity
under S 2-9-111, MCA, violates her fundamental right to full
legal redress contained in Article 11, sec. 16, of the 1972
Montana Constitution. She contends the State must show a
compelling state interest in order to restrict, limit or
modify her right to full legal redress. Pfost v. State
(Mont. 1985), 713 P.2d 495, 42 St.Rep. 1957. (The Pfost case
dealt with limitations upon the State's liability for
personal injury actions imposed by $$ 2-9-107, MCA.)
This Court, however, has found the right involved in
this type of action is that of access to the courts under
Article 11, sec. 16, of the 1972 Montana Constitution. In
the Bieber case, in construing 5 2-9-111, MCA, we found
Article 11, sec. 16, of the 1972 Montana Constitution
guarantees access to the courts, but that that access to the
courts is not a fundamental right. Bieber, 759 P.2d at 148,
citing Linder v. Smith (Mont. 1981), 629 P.2d 1187, 1190, 38
St-Rep. 912, 915. As a fundamental right is not involved,
the constitutionality of the statute is presumed and the
State need only show a rational relationship to a legitimate
State interest. Small v. McRae (1982), 200 Mont. 497, 524,
651 P.2d 982, 996, citing New Orleans v. Dukes (1976), 427
U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511.
This Court has identified that rational relationship to
a legitimate State interest which justifies § 2-9-111, MCA,
as follows:
The oft articulated rationale for
retaining government imrnunity
(specifically in this case legislative
immunity) is to insulate a decision or
law making body from suit in order to
prevent its decision or law making
processes from being hampered or
influenced by frivolous lawsuits.
Bieber, 7 5 9 P.2d at 1 4 8 . The statute has previously passed
this rational relationship test and we find Peterson's
argument of unconstitutionality must fail.
The District Court's order granting summary judgment
based upon S. 2 - 9 - 1 1 1 , MCA, is affirmed.
We concur:
Justices
Mr. Justice John C. Sheehy, dissenting:
The decision of the majority in this case has carried
immunity of the school district beyond the orbit of
legislative action and into the sphere of administrative
immunity. That decision is an incorrect reading of the
statute.
As the majority opinion pointed out, the title of act
which became S 2-9-111, MCA, is "immunity from suit for
legislative acts and omissions." While the title is no part
of the act, and we have in other cases held that the
entitlement of an act does not control the meaning of the act
itself, there is at least an indication here that the intent
of the legislature was to grant immunity for legislative
action by a legislative body, and no more.
That this was the intent of the legislature can be
gleaned from a parsing of the difference between subsection
( 2 ) and subsection (3) of the act. They follow:
(2) A governmental entity is immune from suit for
an act or omission of its legislative body or a
member, officer, or agent thereof.
( 3 ) A member, officer, or agent of a legislative
body is immune from suit for damages arising from
the lawful discharge of an official duty associated
with the introduction or consideration of
legislation or action by the leqislative body.
(Emphasis supplied.)
By ordinary rules of English, it will be seen that
subsection (2) grants complete immunity to the governmental
entity for acts or omissions of its legislative body.
Subsection (3) limits immunity to persons for the "lawful
discharge of official duty associated with the introduction
or consideration of legislation or action & the legislative
body." The entity has complete immunity. The persons have
immunity only for actions by the legislative body.
One of the great positions taken by the Constitutional
Convention in 1971 was to eliminate state immunity from suit.
The purpose evinced by the constitutional framers was to
place governmental entities and their agents on the same
footing as agents of private entities, including municipal
corporations, where tortious acts were concerned. The
legislature, through various acts, and goaded by fearful
bureaucrats, has nibbled away at the idea of state immunity,
and S 2-9-111, MCA, passed in 1977 is an example. There is
no doubt that the Act is poorly phrased and nebulous in
meaning, but the whole tenor of the act indicates the
intention of the legislation to confine the withdrawal of
immunity only to legislative acts performed by governmental
units. Under the Court's interpretation of S 2-9-111, MCA,
as now espoused by the majority, no governmental unit except
the state itself will have any liability for the tortious
acts of its agents, because all actions or omissions can be
construed to be those of agents either of the school board,
the city council, or the county commissioners. Thus
administrators, foremen, and janitors are covered under
legislative immunity. That I submit is a bad result, and is
a bad interpretation of 5 2-9-111, MCA.
The purpose of a grant of legislative immunity is to
allow a legislative body to exercise its legislative duties
without hampering its discretion. A body acts legislatively
when it sets policy, or adopts regulations for the
enforcement of its policies. Beyond that, the entity or its
agents are acting administratively and should not come within
the ambit of legislative immunity. Our cases construing 5
2-9-111, MCA, leading up to this decision gave no hint that
this Court would interpret S 2-9-111, MCA, as a complete
grant of immunity to every substate governmental entity,
employee and agent.
In W. D. Construction v. Board of County Commissioners
alla at in County (19851, 707 P.2d 111, the county
commissioners were acting quasi-legislatively in applying
zoning regulations. his Court properly allowed immunity
under 5 2-9-111, MCA. In Barnes v. Koepke (1987), 736 P.2d
132, this Court held that the decision of the county
commissioners not to renew a lease of a hospital and nursing
home was a legislative action and so within the legislative
immunity. In ~ i e b e rv. Broadwater County (Mont. 1988), 759
P.2d 145, the Court, in upholding immunity for a county
commissioner who fired an employee for abusing county
equipment, this Court said:
It is clear that the Broadwater County
Commissioners are a legislative body of the
governmental entity of Broadwater County under the
language of the statute. The decision to fire
~ i e b e r , although initially made by only one
Commissioner, Duede, was later ratified by the rest
of the Commission. It was an act of a member of a
legislative body and is covered by the express
language of the statutes . . ."
The decision in this case takes the grant of immunity
far beyond the members of the Commission themselves, and
grants immunity both to the entity and to the employee or
agent where no legislative act is involved. Thus are the
citizens of our State unprotected from the insolence of
office.
Because I would hold that legislative immunity does not
apply in this case, there would be no need as far as I am
concerned to discuss the effect of Article 11, Section 16 of
the Montana Constitution on 5 2-9-111, MCA. When Bieber was
decided, I was not a member of the panel to which the case
had been assigned. Unfortunately that decision was made
without oral argument by less than a full Court. Ordinarily
this Court does not decide constitutional questions unless
the full Court is represented. I have a profound
disagreement with the majority members of this Court that
Article 11, Section 16 does not provide as a fundamental
right both a ready access to the courts and a full legal
remedy. I will wait for another case to discuss this issue.
It is enough to say here that in my view S 2-9-111, MCA,
carried to the extent decided by the majority in this case,
violates ~ r t i c l e11, Section 16 in every particular.
I would reverse the ~istrictCourt.
Mr. Justice ~illiamE. Hunt, Sr., dissenting:
I dissent. The case of Bieber v. Broadwater County
(Mont. 1988), 759 P.2d 145, 45 St.Rep. 1218, simply stands
for the proposition that, when a county commissioner or other
legislative body appoints one of its members to fill a vacant
managerial position, the appointed commissioner acts under
the delegated authority of the legislative body. The
commissioner's actions while performing the official duties
of the managerial position may be ratified by the commission,
thus entitling the commissioner to governmental immunity.
Bieber does not grant this same immunity to a member of the
government who is not also engaged in legislative functions.
The case does not stand for the proposition that governmental
immunity in the State of Montana has been stricken.