*1 PERETTI, MICHAEL Hodnik, al., et Plaintiffs Henri MONTANA; OF Respondents, STATE v. Board members, Public Education Defendant Appellant. No. 88-499. Submitted June 1989. July Decided 1989.
Rehearing
Aug.
Denied
Williams Law Richard respondents. tiffs and Opinion
MR. JUSTICE GULBRANDSON delivered Court. Judicial Fourth
Defendants judgment from final plaintiffs a County awarding the fourteen District Missоula upon $2,479,916 in This was sum total summary grant partial the District Court’s earlier liability. ruled that plaintiffs The court favor of the on the issue of by the implied contract caused the State was a breach liable for Program Technology premature Aviation termination in 1977 of the Center. reverse. at the Missoula Technical We The issues for review: summary judgment partial granting Did District Court err liability? plaintiffs issue favor of on the determining measure
2. Did the Court err in District plaintiffs? amount of to be awarded In plaintiffs Technology the fall of in the Aviation enrolled (Center). Program at Missoula Technical Center This Center post-secоndary one of five such vocational education centers fi- county may appropriations. sup- nanced Permissive levies (Board) plement financing. The Board of re- Public Education budget tains overall control over curriculum of center. $7,042,721 In legislature appropriated funding for the сenters, $819,388 five legisla- reduction from the 1975 biennial appropriation. tive This reduction entailed a cutback vocational programs. alternatives, After consideration various the Board de- cided to Technology Program (Program) eliminate Aviation be- highest programs cause it per hаd cost all student of offered at the (approxi- Center and because it would affect fewer students students) mately many 30 to 45 programs. than a cut other In June of the Board notified those sixteen at the students already successfully Center who had completed year one of the inte- grated two-yеar program, they complete would be unable to year training second being because the discontinued. alleging students thereafter filed suit breach of the State’s im- plied two-year, six-quarter study course of *3 prepare which would pilot. them for a As career as a commercial allеged by students, the the Program” “Career Pilot detailed the Training syllabus Course designed integrated as a whole, completion flight training of course work and more than sufficient to requirements qualify meet minimum FAA and to stu- employment dents for pilots flight as commercial and and certified ground alleged instructors. Plaintiffs also that this breach summa- rily deprived liberty them of property without due interests process of law. initially
Plaintiffs damages filed suit for federal district court allegedly resulting premature Program. from the termination of the (D. See Peretti v. Montana 1979), F.Supp. 784. The however, Appeals, Ninth Circuit subsequently held the State of Montana had not court and the consented suit federal Eleventh precluded Amendment jurisdiction therefore court district (9th over the suit. Montana v. Peretti F.2d Cir. Plaintiffs then filed suit Fourth Judicial District Court County. Missoula parties agreed damages.
The liability to bifurcate the issues of liability The issue of for sum- was then submitted on cross-mоtions mary judgment; parties the render a stipulated could that the court upon consideration of an decision these its cross-motions transcript the agreed facts the from statement of exhibits earlier trials. federal court implied July ruled an contrac-
On the District Court plain- relationship pаrties which entitled tual existed between the six-quarter complete train- opportunity Program’s tiffs an completion. The held ing period diploma upon court receive a the students when that the State contract with breached par- prematurely Program. granted thus it terminated The court lia- summаry plaintiffs, defendants tial favor damages resulting this breach. ble those from partial requested sum- The State and received a certification 54(b), M.R.Civ.P., mary so it could final under Rule interlocutory prior appeal file to resolution of the issue then an State, however, damages. subsequently not to initiatе The decided damages. judgment on issue of until after jury. July damages The a On issue of was later tried without Law, Fact, Findings the court Conclusions issued its Opinion plain- damages to each of fourteen awarding and Order deposed of their tiffs who were evidence engaged in a career court held that thosе seven students (hereinafter pilots non-pilots”) “the received financial benefit one-year training. from The court thus concluded aviation they non-pilots equaled losses the detriment suffered these (reliance one-year dam- attending incurred in aviation plus expectancy bargain. The thеn mul- ages) of their court lost year of the tiplied expended in 1977 to attend one the total amounts the 1988 Program by 1.9 arrive at an inflation index of damages by the non- equivalency incurred of the total amount pilots The total amounts contract. reliance on the $193,940 high non-pilot ranged a low of awarded to from $237,979. be- on to students who went awarded those seven average cost pilots, hand, equaled increased
come on the other average by the average income caused training, of alternate lost one-year pilots, the value delay beginning career *4 awith emрloyment degree from a school by lack of a benefit lost The total training program. integrated pilot formal index, 1.9 inflation of pilot, awarded to after consideration two $147,350. claims to court amounted dismissed damage. students who evidence of
243 Defendants thereafter filed from the final of this thе District Court. holding
The State lia- contends that the District Court erred it clearly ble breach of an State not contract since the has sovereign unambiguously to waived as waiver, allege appellants, a actions. Absent such clear may State not be sued its own courts. recognize among
We that the a modern trend states favors immunity protections sovereign diminution of those available to County states. The Board Comm’rs Colorado case of Evans v. County 968, El Paso 174 482 Colo. P.2d a strik- ing many rationale for abolishing this latent trend toward forms of sovereign immunity previously recognized:
“The philosophies monarchical invented to solve marital problems Henry justification VIII are not sufficient for the denial right recovery against today’s society. government Assuming sovereign immunity Kings that there was Eng- land, our Revolutionary forbears won the War to rid themselves [sic] sovereign of such prerogatives.”
Id. at 969. similarly
Montana has diminishing endorsed this sov- trend toward ereign immunity protections, as evidenced the 1972 constitu- tional sovereign immunity abolishment of the State’s as to ac- all involving injuries tions person property. to a or As stated in the Constitution, II, Article 18: state, counties, cities, “The towns, all governmental other local entities injury person shаll have no from suit for a or property, except may provided by specifically be vote law a % legislature.” each house of the II, protections
While Art. sovereign immunity diminishes previously State, available to the it does not abolish all immunity. This previously Court has held that the waiver found II, actions, actions, Art. only 18 extends tort involving injuries person property. Corp. LeaseAmerica (Mont. Wis. v. 462,] [191 St.Rep. 398, By II, interpreting applying Art. 18§ actions, tort prevent Court effectuated the intent constitu actions, sovereign immunity tional waiver of intent expressed by Delegate Constitutional Convention Habedank: may
“. . . I think therе are some many instances there be where governmental employees things do some connection [who] *5 244 try government where
contractual fields that we to for stick immunity in good governmental there is a to maintain our reason situations.” those Moreover, Convention, V,
Montana Constitutional Vol. at 1761. interpretаtion any of a comports principle with the waiver v. Storch strictly sovereign immunity must State’s be construed. Region Center Board Directors E. Mont. Five Mental Health Am.Jur.2d, (1976), 179, 176, citing 169 Mont. 545 72 P.2d States, Etc., 121. §
Finding immunity actions sovereign waiver of contract Constitution, we next turn an examination of the statutes to waiver, for such a a state be sued in its own courts because cannot plain by specific without consent suit either constitutional Severy See, (1945), Heiser v. provision by e.g., or 117 Mont. statute. County 105, State ex rel. Freebourn v. Yellowstone 501; 158 P.2d MCA, (1939), itself, 18-1-404, 21, 108 Mont. P.2d 6. 88 Read § appears unambiguous specific just such an waiver actions, the State’s аs to all alike. Section reads: any respect in “The state of shall be liable Montana private entered into the same manner to the same extent as circumstances, except under individual like the state of prior puni- not be liable or for shall for interest to or after added.) damаges.” (Emphasis tive however, may statutory provision, read and
This individual not be Rather, properly con in a vacuum. it must be read and understood other with the strued such manner “as insure coordination (1977), Corp. v. Mont. sections of an act.” Hostetter Inland Dev. Barney v. Board 167, 1323, 1326; 171, Mont. P.2d see also 172 561 129, (requiring a Comm’rs (1932), 115, 82, R.R. entirety matter relating consider to the court to all statutes their issue). at 18-1-404, MCA, con- meaning ambiguous when read § 18-1-401,
junction provisions part specifically other 18-1-404, MCA, appears Section to waive MCA. MCA, 18-1-401, contracts, ex- yet
as to both express contract pressly grants jurisdiction over district courts 18-1-401, actions. As stаted in MCA: exclusive shall have “The district courts of the state of Montana any determine, hear, original jurisdiction render into any express entered dispute arising claim or out of board, with the state of thereof.” agency, Montana or officer added.) (Emphasis statutes, together,
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218 Mont.
The orders of liable the District Court awarding damages District Court are to the reversed and we remand entry for the defendants. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRI- SON, WEBER concur. and McDONOUGH SHEEHY, dissenting in concurring
MR. JUSTICE part: portion majority opinion
I which finds dissent from that (1) grounds: on two this case involves exist here (2) contract; express, legislature and not an intended soverеign immunity contract. to waive as to plaintiffs In in the Pilot Pro- the fall of enrolled Career Department gram Technology in the at the Missoula of Aviation Center, post secondary state-designated Technical one of five voca- program repre- tional education centers. The wаs advertised and quarter program, extending years. to two sented the state as a six technology making Before their decision to enroll aviation Mis- program,-the describing received a brochure it and the students offerings. catalogue soula Technical Center’s of course After enroll- ing, they рrogram, including two received a detailed outline of the plainly years full outlines contained of classes. The brochures and representation by being offered full the state that the quarters relied on for six and would not be terminated. The students documents, on various statements from their instructors these continuing in throughout year enrolling in the course and the first the course. court, plaintiffs brought first in the federal and the case appealed to the plaintiffs
decision in favor of in that court was in Peretti v. Appeals opinions for the Ninth Circuit. *7 (D. F.Supp. 784. The decision incorrect, the Ninth but because reversed not because it was case, of the jurisdiction, in this Circuit Court felt that it had no that in a against important to this case is cause the state. What is Circuit, pp. reply Appeals for the Ninth brief filed the Court of 10, the state admitted: the result ‘implied
“While the District found an contract’ Court 3, it could have of the solicitаtion contained Exhibits in 28- is defined just easily ‘express contract’ as that term found part: pertinent 2-103 which “ are stated *. . . of which an contract is one the terms ’ ” words . . . I here. would contract existed hold implica- arising from regarded But even if as one the contract is tion, 18-1-404(1), immunity, MCA, waiving the statute provides: respect
“The state of Montana shall be liable in pri- entered into in same manner and to the same extent as vate . . individual under circumstances .” like sophistry, majority
In an exercise nimble determined that “any” the word excludes contracts. One has to be fast to keep up with this Court. here, that an is im- involved and that
munity does to implied policy not extend contracts violates the this state set forth as follows: policy “It is the encourage this state to enable citizens to obtain and receive an education commensurate their abilities recognized post secondary desires. It offering institutions education, vocational, professional perform instruction a useful necessary achieving service to the citizens of this state in objective. It is found that certain institutions have either unscru- pulous, unfair, deceptive practices through in- substandard deprived struction the citizens opportunity оf this state of education subjected them to financial loss.” light public In the policy, of our in which class of educators shall place we the state of Montana?
I concur in damages They awarded. should have been individualized generalized. and not I would remand purpose of adjusting based on the individual losses.
MR. JUSTICE HUNT foregoing concurs dissent of MR. JUSTICE SHEEHY.