*1
KOCH,
ROBERT W.
Pronovost,
Jerome
Mabel
v. YELLOWSTONE
Appellants,
Plaintiffs
Metrapark
COUNTY,
respondents.
Defendants
No. 89-497.
May
Submitted
1990.
July
Decided
1990.
Jay Lansing, for Pronovost. Billings, L. Beiswanger, Gary Seiffert, for Logan. Billings, L. Terry Hoefer, David W. Sheehy, Deputy Anne M. Doris Poppler, and respondents. defendants Attys., Billings, Court. delivered JUSTICE McDONOUGH District, Judicial of the Thirteenth This is an from an order the defendants County granting summary judgment Yellowstone in a cause and Metrapark County, Metrapark, the defendants termination wrongful by from the alleged action arising was Summary judgment of the plaintiff/employees. from suit pursuant are immune defendants that the
grounds and remand. reverse 2-9-111, MCA. We below, raise the Pronovost, Koch, Appellants on issues appeal: following that Yellowstone err in determining Court
(1) Did the District suit immune from pursuant Board are and MetraPark in their summary entitled to judgment were and therefore favor? issue of no determining genuine Court err in Did the District the case appropriate rendering existed thereby
material fact for summary judgment? motion the defendants’ upon disposition Court granting summary judgment of the District (3) Did the decision appellants and MetraPark deprive to Yellowstone of the law? protection constitutional right equal Commissioners created the Yellowstone County In of 1980 January the “Yellowstone known as a Joint commission resolution Commission”, known as the MetraPark later —METRA Exhibition consisting the name of the physical complex “MetraPark” is Board. the Metra Arena (fairgrounds) Exhibition of the Yellowstone of which is (civic center), managed governed building MetraPark Board. *3 a recommendation 21, the MetraPark Board adopted
On 1987 May The structure. its employee executive committee to reorganize its for the elimination eight called reorganization plan positions. five new employment the creation of allegedly positions letters to the 22, 1987, eight MetraPark Board sent the On May 30,1988. effective June their terminating positions existing employees Koch, and Pronovost— held by plaintiffs positions and assistant/operations operator, maintenance switchboard manager, those eliminated. among manager, respectively—were committee 28, 1987, MetraPark Board personnel On May new of the five the creation Commissioners to the County proposed approved the County positions 1987, 13, On June recommendation a few days. termination the eight employees’ previous commissioners approved was given Pronovost five new hiring employees. Director” new of “Operations for the position to apply opportunity filed employees terminated eight but was not hired. Subsequently, at bar. into the case consolidated suit; these suits were three of motion for initial County’s Yellowstone Court denied The District immunity provided based summary judgment 450
MCA. This Court then handed down decision in its Peterson Great 376, A (Mont. 1989), Falls School Destrict No. 1 and 237 Mont. 773 316, 880, P.2d Ed.Law St.Rep. [8 61]. motion which the
renewed its court based on prior MCA and Peterson. immunity provided
I. contend 2-9-111 should be interpreted acts. We granting immunity legislative body only legislative It is well settled in the line of cases decided under the statute disagree. that the of the statute does not between language distinguish legislative and administrative acts: (Mont. 1988),
“Our recent decisions in Bieber v. Broadwater Cty.
487,
145,]
232 Mont.
P.2d
and Peterson
St.Rep.
[759
[45
1218]
376,
[(1989),
316,]
Mont.
P.2d
St.Rep.
[46
880]
of this issue. While the statute is entitled
from suit
disposed
‘Immunity
’
omissions,
acts and
we held in Peterson and Bieber that
legislative
of the statute’s actual
is much broader in
plain meaning
language
that ‘action
need not be
in nature to
body
legislative
legislative
Peterson,
afford
State ex rel. Eccleston v. Third Judicial District Court 44,] Mont. 783 P.2d 1934 Ed. St.Rep. [240 [8 Law whether Accordingly, determining 146g]. look to the
afforded to defendants plain meaning statute, MCA. The statute language provides:
“2-9-111. from suit for acts and omissions. Immunity legislative (1) As used in this section: state, counties, includes the
“(a) the term ‘governmental entity’ districts; and school municipalities,
“(b) the term includes the ... and body’ legislature any ‘legislative statute, local entity given legislative powers by governmental school boards. including act or omis-
“(2) A is immune from suit for an entity governmental member, officer, thereof. sion of its or a or body agent legislative member, officer, is immune body or “(3) agent legislative A of an official from the lawful arising discharge from suit for damages or or consideration of legislation associated with the introduction duty body. action by legislative extend to any for in does not this section immunity provided aircraft, vehicle, other means
tort committed the use of a motor or of transportation.” nature named as defendants in
We now examine the of the entities MetraPark, and MetraPark Board to this case—Yellowstone County, determine if and to whom statutory immunity applies. (1). is under subsection
County entity governmental (2), of subsection meaning County According plain immune from suit if the MetraPark Board is a of the or an thereof. (l)(b) of MCA defines body”
Subsection “legislative § ... and as “the local legislature any governmental entity given statute, school boards. legislative including Legislative make, alter, or includes laws or rules power power repeal future, 377-378; 16 C.J.S. Constitutional Law Springer pp. Islands, 189, 201-202, (1927), 277 U.S. 72 L.Ed. Philippine 480, 482; matters, well S.Ct. to control fiscal power such as taxes. budgets, appropriations levy fair commission and the civic statutory powers separate center or commission the MetraPark Board are building constituting found in 8 and 21 of title Montana Code Annotated. Section chapter 7-8-2103, MCA, authorizes the Commissioners to create a commission for county building center, center,
“... of such civic youth park museums, centers, recreation buildings, county parks, hospitals, of two or more Such shall be combination thereof. commission any of the chairman board of commissioners composed county five to be the board. In cases where a members lay appointed by commission, with the commission has been appointed, together board, shall have the a manager.” employ 7-8-2103, MCA. 7-21-3401 et
Section Sections seq., fair authorize the to create commissioners, terms of office of such commissions sets forth 7-21-3402; 7-21-3403; the necessary qualifications, commission, 7-21-3404; and the organization compensation commissioners, also has fair commission 7-21-3405. specific statutory powers: *5 resolution of
“7-21-3406. Powers of fair commission. county By commissioners, fair commissioners county board of county and shall have control and of the fair supervision operation of the ...” management fairgrounds duties:
The fair commission also has specific (1) fair commission. county “7-21-3407. Duties do all to hold a successful annual commission shall things necessary fair ... county including: agricultural labor; “(a)
“(e) necessary conducting continuing operation everything county fairgrounds buildings. have of all and fair “(2) The commission shall charge fairgrounds property.” executive or
These duties and are their nature powers administrative. The MetraPark Board is a commission created joint of the resolution of the combining powers civic and fair boards. With to the of the Metra center regard powers Park cite a General’s Attorney September that the Yellowstone Commissioners had as authority of the fair board no to create a commission authority joint comprised and the civic center board that these individual boards empowers vote on matters to the vested in statutory authority pertaining Although other. See 7-8-2103 and supra. §§ find it address this issue to unnecessary dispose specifically it is worth the 1989 noting Legislature, apparently enacted an General’s legislation response Attorney opinion, to create a fair and a board of commissioners county joint authorizing commission, for ten years civic center existed already Yellowstone County: center Authorization to create a fair and civic joint
“7-21-3451. shall have the commission. The board of commissioners county center for the to create a fair and civic commission joint and civic centers fairgrounds management operation the county. county upon The board of commissioners county commission and fair county
application regularly appointed commission, fair and resolution create a may by joint county building civic center commission. the full is vested with
“(3) The fair and civic center commission joint the county building fair commission and county commission.”
See, -3458. duties joint 7-21-3451 through generally, §§ fair are also the same combined duties of commission commission. Section 7-21-3454. county building commission It from these statutes that the statutory powers is evident Board are limited operation make, alter, Center do not authority Metra Civic include any Board not vested with laws or rules. Clearly and Eccleston of a school board as in Peterson legislative power nor it have the of a board does legislative power (Mont. 1989), as in Bieber and Miller v. Fallon County commissioners 241,] Mont. P.2d 2087. The MetraPark St.Rep. [240 and is not statutory executive functions clearly performs *6 legislative body.
The second of our of analysis under subsection part § MCA, is to determine whether MetraPark Board an agent is Commissioners Board of the County County, of Yellowstone se per of While the District Court County. defendants, relied on Peterson in to the granting summary judgment our recent decision in Eccleston more addresses the between of MCA. In relationship agency § held Eccleston we that a school were janitors agents of principal the school board within the of meaning providing them from for an to remove suit failure ice alleged negligent Eccleston, and snow from at the school In we steps relied gymnasium. Restatement, of the the Restatement 2nd Under crucial Agency. factor in this determination control the agency is principal: 1. Agency;
“Sec. Principal; Agent. is which from fiduciary the relation results the Agency of one another manifestation consent to that the other shall person ” act added.) on his behalf and to his subject control.... (Emphasis 2d 1. Restatement In Eccleston the Agency, recognized of school boards are to given the control expressly right principals to including the and dismiss them as deemed janitors, right employ statute. See MCA. necessary, by the bar the In this case at differs from Eccleston. While Board regard, of has the to authority Commissioners County supervise duties, in the of their relative to assessing, officers performance the public or disbursement collecting, safekeeping, of revenues, not the Board does have the power perform them the which duties duties for or direct manner in statutory officers’ 7-4-2110, MCA, Arnold v. Custer County are Section performed. 454 396,
(1928), 146-47, 401; P. Hicks v. 83 Mont. Orange 101, 109, (1977), Board County Supervisors Cal.Rptr. of 228, 242; (1976), People Langdon Cal.App.3d Cal.Rptr. 384, 390; Counties, 20 C.J.S. generally See Cal.App.3d Here, 854. there is no of to the p. statutory grant Board specific Commissioners it to control the civic County right center giving board, board, or MetraPark the fair Board relative to the With function. employment respect employment personnel, the MetraPark Board has derived statutory independently powers and thus is not the control granted by legislature subject Board of exercise County Commissioners of that regarding Therefore, function under these facts. under the Restatement the is not the Board Commissioners with agent County here. respect Accordingly, 2-9-111(2), is not immune from suit under § however, anas are not We agent legislative body. detracting to fix County of the Board of number benefits, the salaries and employees, adopt personnel policies, when such is a facet of its authority county budget statutory adopt taxes to finance the same. levy
Furthermore, is not an County it although Commissioners, the Board Board and members of are officers of nevertheless Yellowstone County, just Schools, Recorder, Clerk and and other Superintendent are, executive officers created statutorily subject for their torts while a Board such officers under indemnify acting 2-9-305, MCA. *7 a Board is neither nor an
thereof, 2-9-111, it immune from suit therefore is not under MCA. does concluded that not Having immunity extend Board, we need not issues address other raised on this as the lower court not did rule them. upon
REVERSED AND REMANDED.
CHIEF JUSTICE and JUSTICES and TURNAGE HARRISON WEBER concur. MORAN, W. for
HON. LARRY District JUSTICE Judge, sitting SHEEHY, concurring: specially is an and McDonough’s entirely
Mr. Justice exhaustive Opinion in the and I concur analysis of the facts and law appropriate content, so, Even and length the result. the style, from in a of difficulties encountered departure representative common law traditional procedure. court law has from
Historical of common proceeded development of facts and enunciation theory, legal principles, recognition has been thence to establishment of This precedent. progression law, and reason primary made strength flexibility judge However, is not effectiveness and durability. its sequence in recent the issue of governmental decisions apparent regarding fact, and the effect of MCA. In exact reverse immunity has occurred. Instead of forward establishment moving has been case movement to a case precedent, self-perpetuating of decision. pattern a determination of the
It is that case suggested case respectfully immunity issue of complex important governmental tends to create confusion applicability (such reflected Many fine and intricate distinctions as those instability. finer, will, in Justice become inevitably, McDonough’s Opinion) intricate, more and more to maintain complex struggle logic intensifies; distinctions, there will be distinctions inscrutable; and, become, reasons for will essentially, decisions will precedent become more elusive.
In the evolution of been directed tort has liability, primary emphasis in a to the act or conduct a of action. It is proper cause producing where law must be when extending on democracy guard special immunities, be on acts or or based liability rights, privileges, conduct, actor. not on the nature or character of the Unfortunately, liability involving cases fixing governmental MCA, misdirected has been to matter deserving attention act nature interest—the or character actor—with only passing This, too, and conduct seems to be a generally ignored. departure the tested and the common law. way proven write) on (or would be to an opinion How beneficial it see governmental immunity considering provisions to the cause of action is “the act rise concluding: giving simply executive, Hence, not governmental legislative. administrative reverse, in or the situations. applicable does not attach” OLSON, A. District HUNT and THOMAS JUSTICE HONORABLE BARZ, in the specially JUSTICE concur sitting foregoing Judge, MORAN, Judge. of HON. District LARRY C. concurring opinion