No. 88-19 

IN THE SUPREM-E COURT OF THE STATE OF MONTANA 

1988 

JAMES NATHAN BIEBER, 

Plaintiff and Appellant, 

-vsBROADWATER COUNTY and WILLIAM DUEDE 

as County Commissioner and Individually, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Broadwater, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Reynolds & Motl; David K.W. Wilson, Jr., Helena, 

Montana 

For Respondent : 

Jardine, Stephenson, Blewett & Weaver; Sue Ann Love, 

Great Falls, Montana 

Submitted on Briefs: May 19, 1988 

Decided: July 8, 1988 

Fi led : 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Plaintiff appeals from a summary judgment of the 

District Court, First Judicial District, County of 

Broadwater. We affirm. 

Appellant Bieber lists the following as issues on 

appeal: 

1. Does 2-9-11 2 , MCA, grant Broadwater County 

immunity for the actions of one of its commissioners in 

firing appellant Bieber? 

2. Does 5 2-9-lll(3) MCA, grant County Commissioner 

Duede immunity for his actions in firing Bieber? 

Following is a summary of the pertinent facts of this 

case. More facts will be revealed as needed within the body 

of the opinion. We wish to note that County Commissioner 

Duede has died since this case was submitted to the Court for 

appellate review. Since no motion for substitution of his 

personal representative has been made pursuant to Rule 37(a), 

M.R.App.P., we will assume he has none and will proceed with 

rendering this opinion as if Duede were still living. We are 

given this authority pursuant to Rule 37(a). 

Bieber was hired by Broadwater County as a seasonal 

member of the road crew in September, 1983. This position 

became full-time in April, 1984. The county road crew 

repairs and maintains county roads under the direct 

supervisory control of the County Commissioners. 

Commissioner Duede became the primary supervisor of the road 

crew partly because of his physical proximity to the county 

shop. He was primarily responsible for assigning work, 

disciplining and hiring and firing of employees. It was 

Duede who hired Bieber in 1983. Bieber was apparently 
performing satisfactorily until Duede discovered that county 

equipment was being damaged by Bieber. On February 28, 1986, 

Duede fired Bieber. There is some dispute whether Bieber had 

been forwarned that his alleged abuse of county equipment 

could cost him his job. Duede did not consult with the other 

two commissioners but later told them of his action with 

which they both concurred. Bieber now claims that the 

commissioners violated their own personnel policy as well as 

their contractual obligations and obligation to deal in good 

faith. 

Bieber filed suit alleging breach of the employment 

contract, bad faith and violation of the employment at will 

statute. He later added a wrongful discharge count. When 

respondents filed a motion for summary judgment on the 

grounds that they were immune from suit under 5 2-9-111, MCA, 

the court dismissed the action on those grounds. Bieber 

appeals from this judgment. 

Rieber initially argues that the District Court 

incorrectly assessed the meaning of § 2-9-111, MCA, and its 

applicability to the Commissioners1 action. He asserts that 

the statute represents a narrow exception to the 

constitutionally mandated rule of no sovereign immunity and 

as such its protection is limited to purely "legislative" 

acts and excludes day to day "administrative" 

responsibilities such as the firing of a county employee. 

The statute reads in pertinent part: 

2-9-111. Immunity from --- suit for legislative acts 

and omissions. (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 77 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. 

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 Bieber, 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 under the express language of the statute. We 

have previously held that acts of a County Commission are 

immune under $ 2-9-111, MCA and do so again in this case. 

See, Barnes v. Koepke (Mont. 1987), 736 P.2d 132, 44 St.Rep. 

810; W. D. Construction, Inc. v. Bd. of County Commissioners 

(Mont. 1985), 707 P.2d 1111, 42 St.Rep. 1638. 

Appellant asks that we recognize the distinction between 

administrative acts which should not be protected and 

legislative acts which should be protected. We decline to 

give credence to appellant's argument because the plain 

language of the statute makes no such distinction. As we 

have stated, this Court will not delve outside the plain 

meaning of the words used in a statute. See, - W. - D. 

Construction, 707 P.2d at 1113 and Barnes, 736 P.2d at 134. 

Appellant contends, as his second issue that Duede, as 

an individual defendant, is not protected under § 2-9-111(3) 

because Duede was not discharging an official duty associated 
with "the introduction or consideration of legislation or 

action by the" County Commissioners. We disagree. Duede 

clearly had an official duty to oversee and administer the 

maintenance and repair of county roads in his capacity as a 

County Commissioner. Within this responsibility is the 

ability to fire and hire road crew members. In firing 

Bieber, Duede was discharging his lawful duty as 

commissioner. He cannot be sued for that action under the 

current law. 

As a final point of argument, Bieber challenges the 

constitutionality of 5 2-9-111, MCA. In response, the County 

argues that this issue was not raised at trial and thus 

cannot be heard by the Court upon appeal. We find sufficient 

reference to the issue in Bieber's plaintiff's brief in 

opposition to defendant's motion for summary judgment. Thus, 

we will address this issue. 

Bieber's claim is that the statute creates two classes 

of county employees, those under the County Commissioners' 

direct supervision who cannot sue the county and all other 

county employees who can sue the county. Thus 5 2-9-111, 

violates the equal protection clause, Art. 11, 5 4 of the 

Montana Constitution. For this proposition, Bieber, directs 

our attention to the case, Lovell v. Wolf (Mont. 1982), 643 

P.2d 569, 39 St.Rep. 710, in which a county clerk and 

recorder successfully sued the city-county manager for 

wrongful discharge. Bieber, in essence, argues that since 

the city-county manager was not protected under 5 2-9-114, 

MCA, governing immunity for local executive officers, the 

county should not be immune from suits under 5 2-9-111, MCA. 

This argument is meritless. Nowhere in the Lovell case is 

the issue of governmental immunity discussed. And because it 

would have involved 5 2-9-114, not §' 2-9-111, the case is not 

relevant for the purposes of this issue. 
The standard applicable to equal protection analysis can 

be found in the case of Small v. McRae (19821, 200 Mont. 497, 

Turning to the issue of equal protection, that 

issue is analyzed by using a two-step process. 

Initially, the Court must consider the nature of 

the classification and the individual interests 

affected, to determine what level of scrutiny is 

applicable to the classifications. Memorial 

Hospital - v. Maricopa County (1974), 415 U.S. 250, 

94 S.Ct. 1076, 39 L.Ed.2d 306. Unless the 

classification touches on a fundamental right (such 

as religious freedom, freedom of speech or 

association, privacy or right to travel), or is 

drawn upon an inherently suspect distinction (such 

as race, religion or alienage) , the 

constitutionality of the statutory discrimination 

is presumed; the only requirement being that the 

classification be rationally related to a 

legitimate state interest. N~W Orleans v. ~ukes 

(1976), 427 U.S. 297, 96 S.C~ 2513, 49L.Ed.2d 

511. "Rationally related" means that the 

classification will be upheld if it has any 

rational basis. See, Lindsley v. Natural Carbonic 

-- Gas Co. (1911), 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 

369. 

651 P.2d at 996. 

Bieber argues that the fundamental right involved here 

is the right to full legal redress provided in Art. 11, § 16 

of the 1972 Montana Constitution. We disagree. 

Art. 11, $ 16 of the Montana Constitution guarantees 

citizens access to the courts of this state for the redress 

of wrongs done to them. This Court has said that access to 

the courts is not an independent fundamental right. We so 

stated in Linder v. Smith (Mont. 1981) , 629 P. 2d 1187, 1190, 

38 St.Rep. 912, 915 and consequently used a rational basis 

analysis to conclude that the Montana Medical Malpractice 

Panel Act did not violate Art. 11, 5 16. This is the 

appropriate standard to use for t-he purposes of equal 

protection analysis in this case. The oft articulated 
rationale for retaining government immunity (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. This reason satisfies the rational basis 

test. The County Commission is entrusted with the 

responsibility to supervise the maintenance and repair of 

county roads. This includes the power to decide whom to hire 

and fire. To allow suit against them for the performance of 

their duties would hinder this performance. We conclude that 

equal protection is not violated by S 2-9-111, MCA. 

Affirmed .