No. 89-040

IN THE SUPREME COURTOF THE STATE OF MONTANA
1989

STATEOF MONTANA, ex rel., ROBERT ECCLESTON,KEVIN SULLIVAN AND ELMER CARSONE, Relators, L 0 -vs- -z -{ m C]CMONTANA THIRD JUDICIAL DISTRICTCOURT, -p c7 -

## - DEER LODGE COUNTY, and THE HONORABLE w --: <.--I TED MIZNER, Presiding DistrictJudge,

_., -- 77- $r' Respondents. 3. i-- rriv1 2 0x 0 F ORIGINAL PROCEEDING:

COUNSELOF RECORD:

For Relator:

C. RichardAnderson argued & John P. Davis; Poore,Roth & Robinson, Butte,Montana Timothy McKeon;McKeon & McKeon, Anaconda,Montana

For Respondents:

Hon. Marc Racicot,Attorney General, Helena,Montana Clay R. Smith, Solicitor,Helena JosephC. Connors argued, Anaconda,Montana Bernard J. Everett argued; Knight,Dahood,McLean & Everett, Anaconda,Montana

ForAmicus Curiae:

BruceW. Moerer,Montana SchoolBoardsAssociation, Helena, Montana

Submitted: September 25, 1989 Decided: November 22, 1989 b Filed:Justice R. C. McDonough delivered the Opinion of the Court.

This case is an original proceeding in this Court involving an application for a writ of supervisory control. The issues presented for our determination originated in Fitzpatrick v. School District No. 10, a negligence case currently before the Third Judicial District Court. Relators, defendants below, are employees of the original named defendant, School District No. 10. Relators seek relief via supervisory control from the District Court's order granting plaintiffs leave to belatedly amend their complaint to name relatorsasdefendants in the actionbelow. In the same order, the District Court granted summary judgment dismissing the original defendant, chairman of the board of trustees of the school district, from the action. In a subsequent order, the District Court granted defendant school district's motion to be dismissed as a party to the suit. Both dismissalswere based on the immunityprovisions of S 2-9-111,MCA. At plaintiff's request, we identified the following issues fordetermination upon supervisory control: 1) Whether this is a proper case for this Court's consideration upon a writ of supervisory control? 2 Whether the District Court erred in granting plaintiffs leave to amend their complaint pursuant to Rule 15(c) to name the school district employees as new parties after expirationof the statute of limitations? 3) Whether § 2-9-111 (2)and (3),MCA, grants immunity from tort liability to a school district and its employees for conduct by the latter admittedly within the course and scope of their employment and not involving the use of a motor vehicle, aircraft, or other means of transportation?After careful consideration of these issues and the facts of this case, we conclude this case is appropriate for determination upon the writ. Further,we conclude that the District Court did not abuse its discretion in allowing the amendment; however, the recent case law interpreting S 2-9-111, MCA, clearly renders the relators immune from suit. On March 4th, 1985 plaintiffMary Fitzpatrick fell down the alley stairs leading down to the Memorial Gymnasium in Anaconda, Montana. The gym is owned by School District No. 10. OnAugust 26, 1987 plaintiffs Mary and Frank Fitzpatrick filed a complaint against School District No. 10 and the District's chairman of the board of trustees Ty Tyvand. The complaint alleged that defendants were negligent in failing to properly light and remove ice and snow from the stairway. Defendants filed an answer on October 7, 1987. Pursuant to stipulation, defendants amended their Answer to plead the affirmative defense of immunity from plaintiffs' claims pursuant to S 2-9-111, MCA. Defendants filed their amended

answer more than three (3)months before the running of the statute of limitations. On July 7, 1988, plaintiffs moved for leave to amend their complaint to name Robert Eccleston and Kevin Sullivan, the school janitors, and Elmer Carsone, the school principal, as defendants in the suit. Themotion

was filed four months after running of the statute of limitations. On July 29, 1988,the original defendants filed

a motion for summary judgment based on their immunity defense. In September 1988 the District Court dismissed Chairperson Tyvands based on § 2-9-111,MCA 

## ,but not School DistrictNo. 10. In the same order, the court also granted plaintiffs leave to amend their complaint adding employee relators as defendants,concluding that the amendment related back to the lawsuit's filing date under Rule 15(c),M.R.Civ.P., and thuswas notbarred by the threeyear statute of limitations. The relatorsand schooldistrict immediately moved for dismissal of the amended complaint on immunity and statute of limitations grounds. On Decemher 19, 1988 the District Court granted the motion with respect to School DistrictNo. 10 but denied it as to relators. On January 25, 1989 relators filed the present application for writ of supervisory control. The sole issue raised in the application is whether the District Court erred in determining that the amendment related back to the original filing date. In opposing the application, plaintiffs suggested that the relation-back issue will eventually become moot because the DistrictCourt erred indismissing the school district on immunity grounds and because recovery against the school district will bar the claims against relators under § 2-9-305(5), MCA. Plaintiffs requested "the opportunity to fullybrief the immunity issues"to avoid "piecemeal appeals" and toplace the Court "inaposition of rendering adecision with thebenefit of all relevant facts and argument." OnMay 9, 1989 this Court entered an order identifying the issues listed above for oral argument.

I. Article VII, Section 2 of the Montana Constitution gives this Court "original jurisdiction to issue,hear, and determine writs. 

# . . ." The same section also gives us "general supervisory control over all other courts" in the State. Art. VII, Sec. 2, Mont.Const. Recently, we summarized the standards for granting a writ of supervisory control. See State ex rel. Fitzgerald v. District Court 

### - (1985),217Mont. 106, 114, 703 P.2d 148, 153-54. One of the functions of the writ is to control the course of litigationin lower courts, where those courts are proceeding within their jurisdiction but under mistake of lawby doing a gross injustice, and there is no appeal or the remedy by appeal is inadequate. State ex. rel. Shoresv. District Court (1903)

### , 27Mont. 349, 71 P. 159; State ex. rel.Whiteside v. District Court (1900),24 Mont. 539, 63P. 395. There are no written regulations or laws respecting our power of supervisory control. Rather, we haveproceeded on a case-by-case basis being careful not to substitute thepower of supervisory control for an appeal provided by statute. State ex rel. Reid v. District Court (1953), 126 Mont. 489, 255 P.2d 693. However, if a relator will be deprived of a fundamental right, both justice and judicial economy req.uire

us to assume jurisdiction and resolve the issue in favor of the relator. Thus, if the causebelow ismired inprocedural entanglements and appeal is not an adequate remedy,we will issue a writ of supervisory control. Stateex rel. Levittv. District Court (1977),172Mont. 12, 560 P.2d 517. In the case at bar, the lack of any issue of material fact clearly renders this case appropriate for disposition upon summary judgment

# . Rule 56(c)

## , M.R.Civ.P. The problem confronted by the District Court in this case is whether the law, specifically 2-9-111, MCA, does in fact provide immunity to the individual employee relators, thereby entitling them to summary judgment. Determination of this question will directly bear on thepropriety of the District Court's refusal to dismiss the relators and may also determine the propriety of the amendment naming relators as parties to the lawsuitbelow. Therefore,we conclude that a writ of supervisory control is appropriate in this case for the purpose of clarifying the law and in the interests of judicial economy.Defendants rely primarily on Kilkenny v. Arco ~arine, Inc. (9th Cir. 1986), 800 F.2d 853, in contending that the amendment adding them should not relate back under Rule 15(c),M.R.Civ.P. The Ruleprovides:
Rule 15(c). Relationback of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occ,urrenceset forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relatesback if the foregoing provision is satisfied and, within theperiod provided by law for commencingthe action againsthim, theparty to be brought in by amendment (1)has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought againsthim.

# ...

Rule 15(c)

## ,M.R.Civ.P. See also Schiavonev. Fortune (1986)

### , -- 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18, 27. Kilkennyholds that the extentof the information the pleader obtains respecting another as a potential defendant, after filing of the original complaint and before the limitations period expires, is relevant to whether the potential defendant knew or should have known that they would be named but for a mistake in identity. Kilkenny, 800 F.2d at 857. The defendants point out that the Fitzpatricks had deposed and taken statements from the relators prior to expiration of the statute of limitations. Defendants argue further that plaintiffshad notice of theirmistake in naming theproper parties when defendant school district amended its

answer to assert the immunity defense. Relators contend that the extent of this informationheld by the plaintiffs causedthem tobelieve that they were not named because of strategic

reasonsrather thanas a resultofmistaken identity. However, Kilkenny can be distinguished from the case at bar. The amended answer in Kilkenny not only alleged that the original named defendant was not a proper party to the suit; it also identified the parties who were the proper defendants to the suit. In this case defendants' amended answer merely notified plaintiffs of thepossible impropriety of the school districtas a defendant. The amended answerdid not indicatethat the relators alonemightbe orwere in fact the proper parties to the suit. Furthermore, because the immunity issue presents a novel question under the facts of this case, plaintiffs did not know that the school district is immune from suit under S 2-9-111(2)

## ,MCA. In fact, they still contend that the district is not immune. Thus, the first time that the plaintiffs had an indication that the relatoremployees were the proper parties to the suit iswhen the District Court dismissed the school district and Chairperson Tyvands after the expiration of the statute of limitations. Thus, our determination should focus on the threshold question ofwhether theproposed defendantsknewor should have known that but for a mistake in identity of the proper parties the suitwould have been brought against them. In this regard the defendant employees are the personification of the school district.Theywere deposed and involved in the litigation from the outset and cannot claim that they did not have notice of the institution of the action. Considering the obvious link between the district employeesand the schooldistrict itself,and in light of the arguably unsettled immunity questionpresented in this case,

we agreewith the District Court'sconclusion that:
there was no mistake as to the identity of the District employees who were involved in thecircumstances that led to the filing of this lawsuit. However there was a mistake as to the

-- identity of the proper parties to this lawsuit as 

### -- contemplated by Section 15(c)

## , P4.R.Civ.P. 

# . . .

(Emphasisby theDistrictCourt.) Order of December 15, 1988. The mistake in this case being related to the identity of the proper parties and the relators having ample notice of the action so as not to he prejudiced, we find no abuse of discretion by the District Court in allowing the amendment.

We now come to the determinative issue in this case requiring issuanceof thewrit. The issue involves the scope of the immunity granted by B 2-9-111, MCA, to a school district and its employees for torts committed within the

course and scopeof employment and not involving the use of a motor vehicle, aircraft, or other means of transportation. The statuteprovides: 2-9-111. Immunity from suit for legislative acts and omissions. (1) As used in this section: (a) the term "governmentalentity" includes the state, counties, municipalities,and schooldistricts; (b) The term

"legislative body" includes the legislature

# . . . and any local governmental entitygiven legislative powers by statute, including schoolboards. (2) A governmental entity is immune from suit for an act or omissionof its legislativebody 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 immunityprovided for in this section doesnot extend to any tort committedby theuse of a motor vehicle, aircraft, or other means of transportation.Section 2-9-111,MCA. Plaintiffs argue that the past cases construing the statute and relied upon by defendants are distinguishable from the case at bar. See e.g., Limberhand v. Big Ditch - - Co.(1985), 218 Mont. 132, 706 P.2d 491; W.D. Construction Inc. v. Board of County Commissioner's of Gallatin County (1985), 218 Mont. 348, 707 P.2d 1111; Bieber v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St.Rep. 1218; Peterson

v. Great Falls School DistrictNo. 1 and A (Mont. 1989), 773 P.2d 316, 46 St.Rep. 880. Plaintiffscontend that Barnes and W.D. Construction can be distinguished because those cases involved clearly legislative rather than administrative functions. This contention carries no weight. Our recent decisions in Bieber and Peterson, clearly disposed of this issue. While the statute is entitled "Immunityfrom suit for legislative acts and omissions", we held in Peterson and Bieber that the plain meaning of the statute's actual language is much broader in that "actionby the legislative body need not be legislative in nature to afford immunity." Peterson, 773 P.2d at 318. Accordingly, we decline to give credence to the ~laintiffs'distinctionbetween administrative and legislative acts "because the plain 1ang.uage of the statute makes no suchdistinction". Bieber, 759 P.2d at 147. 

### -- We will not delve outside theplain meaning of thewords used in a statute. W.D. Construction, 707P.2d at 1113,Barnesv. Koepke (Mont. 1987), 736 P.2d 132, 134, 45 St.Rep. 810, 812. Plaintiffs also contends that § 2-9-111, MCA, does not grant immunity to the relators in this case. They argue that the statuterequires involvementby a legisl-ativebody, i.e. the school board, before immunity can arise. Plaintiffs concede that the schooldistrict is agovernmental entity and the schoolboard is a legislativebody under subsection (1). However, plaintiffs argue that the school district, not theschool board, owns the gymnasium and employs the custodians and the principal. Thus, plaintiffs argue the operative provision of subsection (3)has no application to the case at bar as no member, officer, or agent of any legislative body is being sued. We disagree. Clearly, the relators in this case are agents of the schoolboard: (2) A servant 

### -- is an agent employed by amaster to perform service in his affairs whose physical - - - conduct in the performance of the service is controlled or is subject to the right to controlby themaster. (Emphasisadded.)

Restatement 2d of Agency, 52. Thus, an agent includes one who performs onlymanual labor as a servant. Restatement 2d of Agency, 51,comment (el

# . The board of trustees for each school districthas thepower to: (2) Employ and dismiss administrative personnel, clerks, secretaries, teacher aides, custodians, maintenance personnel, school bus drivers, food service personnel, nurses, and any other personnel deemed necessary to carry out thevarious services of thedistrict.

# . . . (Emphasisadded). 

### --- Section 20-3-324, MCA. A school "district" is defined as: the territory, regardless of county boundaries, organized under the provisions of this title to provide public educational services under the jurisdictionof the trustees prescribedby this 

### -- title.

# .. . (Emphasisadded). Section 20-6-101(1), MCA. Thus, the school board is the governing body--i.e., the legislative body--of the governmental entity, the school district. The janitors cannot be said to be agents of either the board or district to the exclusion of the other. Rather, they are agents of the district as manifested by their agency with the district's governing school board. It simply does not makesense to say that relatorsare agents of thedistrictbut not the board responsible for hiring them and governing the districtand thedistrict's employees. F,urthermore, in Bieber we construed the phrase in subsection (3)of 5 2-9-111, MCA, "with the introduction and consideration of legislation or action by the legislative body" to be disjunctive. Thus, subsection (3) grants immunity to members, officers, or agents of a legislative body for "the lawful discharge of an official duty associated with the introduction or consideration of legislation 

### - or action 

### --- by the legislative body." Peterson, - 773P.2d at 317-318. Here, the omission by relators arose from the lawful discharge of an official duty associated with alleged omissions by the legislative body. A failure to take legislative action, i.e., a legislative omission, will give rise to the immunity afforded by the statute. Section 2-9-lll(2) MCA. Limberhand, 706 P.2d at 498. Any alleged failure by the school district toprovide sufficient funding for maintenance of the stairs and employment of additional custodians are omissionsby its legislativebody, the school board. The omissions of the relators occurred during the lawful discharge ofduties associated with these omissionsby the board. Thus, the relators are immune under subsection

(3)of the statute. Plaintiffs also contend that subsection (2) of 5 2-9-111, MCA, does not grant immunity to the school district in this case. Once again, we disagree. Subsection (2) of the statuteclearly affords immunity to agovernmental entity "for an act or omission of its legislativebody or amember, officer, or agent thereof." In the case at bar, the act complained of was an omission by agents of the school board--i.e., failure by the janitors to remove snow andfailure by the principal to supervise the janitors. Under the plain language of subsection (2) the school district is clearly immune for an omission by an agent of the school board. The District Court did not err in granting summary judgment to the school district on its immunity defense. Finally,plaintiffs argue that the interpretation given the statute violates the rule that any reinstatement of governmental immunity must he strictly construed. Plaintiffs rely on B. M. v. State (1982), 200 Mont. 58, 649 P.2d 425, 33 A.L.R. 4th 1157,where we held that it is "our duty to strictly construe any attempted governmental immunity--that is, every act expanding statutory immunity must be clearly expressed." In

## - B.M., the plaintiffs sued the State for negligence in placing a six-year old child in a special education program for educable mentally retarded children. The State was granted summary judgment based on immunity under S 2-9-111, MCA. We reversed on the grounds that the legislaturehad not enacted legislation to limit the liability of school boards in the administration of special education programs. We held that in the absence of a clear statutory declaration grantinq immunity it is this Court's duty to permit rather than to deny an action for negligence. B.M., 649P.2d at 427. - The plain meaning of the actual language used in S 2-9-111, MCA, was not discussed in our decision in -- B.M. v. State.We have decided several other immunity cases since our 1982 decision in B.M. In the process, we have arrived at the current construction of S 2-9-111, MCA, on a case-by-case basis. 

### - B.M. 's rule of strict construction still holds true. However it is now clear,particularly after our decisions in Bieber and Peterson, that the plain language of the statute constitutes a clear statutory declaration granting immunity to the relators in this case.Earlier in this opinionwe held that the District Court did not abuse its discretion in allowing the plaintiffs to amend their complaint because of the uncertainty of the law regarding immunity. We also held that awrit of supervisory control should iss.uein this case in order forus to clarify the immunity question. We recognize that for us to first hold that the confusion regarding immunity requires supervisory control and then tohold that the statute clearly grants immunity to the relators may seem abit contradictory. In this regard, we are not asserting in this opinion that the statute is unequivocally clear at first glance. Indeed, several interpretationsof S 2-9-111,MCA, have been argued in the line of cases that have come before us since the statute's adoption. However, it is this line of cases, particularly our recent decisions inBieber and Peterson that has given a specific and reasonable interpretation to the statute based on the plain meaning of the actual language used. Moreover, this interpretationof § 2-9-111,MCA, leads

us to but one conclusion: the statute grants immunity to both the school district and its individual employees in this

case.The writ is granted and the amendment naming the relators relates back to the original filing date. However,

as discussed above, 

### 5 2-9-111, MCA, grants immunity to both the school district and the relators in this case. The school district already being dismissed on summary judgment,

we direct theDistrictCourt todismiss the relatorsbased on the immunitygranted by § 2-9-111,MCA. The cause is remanded to the District Court for furtherWe Concur:

JusticesJustice JohnC. Sheehy,dissenting:



### his Court, having in a line of cases needlessly and illogically enlarged governmental immunity for negligence,

now marches overzealously to the ultimate nonsense: a janitor in chargeofbrooming off snow from the steps outside of a school gymnasium is engaged as an agent in legislative action. So say themajority. It will be small comfort to the plaintiff Mary Fitzpatrick that themajority aremarching against the swell of history, to which the law must eventually bend. The extension of governmental immunity to mere government employees who wrongfully perform or omit to perform purely mechanical duties has no root in history. Legal doctrines often flourish long after their raison d'etre has perished. The doctrine of sovereign immunity rests on the fictional premise that the "King can do no wrong." Even though the plot to assassinate James I in 1605, the execution of Charles I in 1649, and the Colonists' reaction to George 111's stamp tax made rather clear the fictional character of the doctrine's underpinnings, British subjects found a gracious means of compelling theKing to obey the law rather than simply repudiating the doctrine itself. They held his advisors and his agents responsible. 

### -- -- (Emphasisadded.) will v. ~ichiganDept. of State police (1989), U.S.



## , 109 S.Ct. 2304, 2320-2321, 105 L.Ed.2d 45, 68-69 (~ustice JohnPaul Stevens,dissenting). The majority in this case have carried governmental immunity to a fargreater reach than was ever extended in the severest of monarchical history. They have not only excused the king; they have excused the king's men, his feudal lords and all their vassals.I particularly object to the contention of the majority that their interpretation of $ 2-9-111, MCA, in this and earlier cases is "clear." Their interpretation isnot clear. It is so unclear that they are brought to the admission that they are not asserting in this Opinion "thatthe statute is unequivocally clear at first glance." Using themselves as authority, the majority hold that it is now clear "that the plain language of the statute constitutes a clear statutory declaration granting immunity to the relators in this case."

(Slipopinion,page 12.) They said so; ergo, it is. Letus

see for ourselves whether the language is plain or the declaration is clear. Subsection (3)of 2-9-111,MCA,provides: (3) A member, officer, or agent of a legislative body is immune from suit for damages arising -from the lawful dischargeof an official duty associated with the introduction or consideration of legislation or action by the legislative body. By rules of English grammar as I understand them, a member, officer or agent of a legislativebody is immune if the discharge of his official duty was "associated 

### -- with the introduction

### - or consideration of legislationor actionby the legislative body." The majority, by their interpretation, eliminate severalwords from the subsection so that they read it to say that a member, officer or agent of a legislative body is immune if the official duty is "associated

# . ..with actionby the legislativebody." Themajority interpretation violates grammaticaland statutoryrules-ofconstruction. We are required not to insertwhat has been omitted or to omit what hasbeen inserted,andwhen there are severalprovisions of particulars we are to give each such a construction as will give effect to all the provisions. Section 1-2-101, MCA
, Moreover, in the construction of a statute, theintention of the legislature is to be pursued, if possible. Section 1-2-102, MCA. Statutes in this state are to be liberally construed with a view to effect their objects and topromote justice. section 1-2-103,MCA. The intent of the legislature can be gleaned from the heading itused in enacting the statute: "Immunity from suit for legislative acts and omissions." That heading is a part -- of the statute. Themeaning of 5 2-9-111(3),MCA, is notplain and clear

as the majority contends. Further militating against their position, as far as legislative intent is concerned,are the provisions ofS 2-9-102,which state: Every qovernmental entity is subject to liability for ~ts torts and those of its employees acting within the scope of their employment or duties whether arisinq out of a sovernmental or proprietary function except as specifically provided by the legislatureunderArt. 11,5 18,of The Constitution of the State of Montana.

(Emphasisadded.) The majority, by their interpretation of 

### 5 2-9-111,MCA, have abrogated the provisions of § 2-9-102,MCA, because now under theholdings of this Court, through its majority, every substratum of state government is immune from suit for the torts of its agents, officers and employees, whether those acts are legislative or administrative, and whether governmental or proprietary. The majority rely on their decision in Bieber v. Broadwater County (Mont. 1988), 759 P.2d 145. Bieber was a

case decided on briefs, without oral argument, and by less than a full court. It involved the act of a county commissioner in discharging an employee. His act was ratified by the county commission. stretching ~ieberto

cover a janitor who didn't scrape snow from a stairway is unsupportable.The majority also rely upon Peterson v. Great Falls School District No. 1 (Mont. 1989), 773 P.2d 316. Here again, we have an action by an employee for wrongful discharge brought against a school district. The discharge of the employee by an administrative assistant was ratified by the school board at its next regularly scheduled meeting. Idare say that no attemptwasmade by School DistrictNo. 10 to ratify thenon-cleaning of its sidewalksby its employees. What is eminently clear from the foregoing is that S 2-9-111, MCA, is not itself clear. The majority have confounded it by omitting portions of the statute, by ignoring the legislative intent expressed in the heading of the statute, by abrogating $ 2-9-102, MCA, which imposes liability for employee torts, and by not requiring that governmental immunitybe specifically provided as required in S 2-9-102, MCA. In so holding, this Court, by its own construction, has extended governmental immunity far beyond any immunity that ever existed in Montana prior to the 1972 Montana constitution and, now, obviously, in direct reversal of the intentions of the constitutional framers of 1972 who unequivocallyabolished governmental immunity. 11. We have noted in the foregoing that S 2-9-102, MCA, imposes liability on governmental entities for the torts of its employees. The immunity provisions of S 2-9-111,MCA, do not speak of actions by employees but rather actions by agents. The question arises, is it legally correct to consider a janitorial employee to be an "agent"of the school district? The majority is in error in construing $ 2-9-lll(2)

### , MCA, to determine that a janitorial employee is an "agent" of the school district; and in construing $ 2-9-111(3)

## ,MCA,to determine that a janitorial employee is the "agent"of a legislative body, the schooldistrict. The term "agency"has no meaning at allwhen applied to

a janitorialemployment. The term "agency" means a fiduciary relationshipby which aparty confides to another the management of somebusiness tobe transacted in the former's name or on his account,and by which such other assumes todo thebusiness and renderan accountof it. It has alsobeen defined as the fiduciaryrelationship which results from the manifestation of consentby one person to another that the other shall act on his behalf and subject to his control,and consent by the other so to act. Thus, the term "agency," in its legal sense, always imports commercial or -- contractual dealings between two parties by and through the medium of another. (~mphasis added.)
3Am.Jur.2d 509,Agency,S 1. An employee rendering purely mechanical services is not an "agent" of the master, in the true sense of the word. Thus: The relationshipmost closely related to themaster and servant relationship is, of course, that of principal and agent. Both relate to employmentand express the idea of service, and both agents and servants are workers foranother under expressed or implied agreement. Indeed, the lawof agency isan outgrowth and expansion of the doctrine of master and servant, and it is of course true that the words "agent"and "servant" in a general senseboth apply to persons in the service of another. A master is a species of principal and a servant a speciesof agent. As a result,thewords "servant" and "agent" are often used interchangeably by the courts, and indeed, an agent employed to make 

### -- contracts might also, with respect to some of his duties and activities,be a servant. On the other hand, the terms "agent"and "servant" are not wholly synonymous since an agent may be authorized to make contracts on behalf of the principal with third persons and to generally representhim in thebusiness, while amere servant has no such authority, but renders purelymechanical services as directed by his employer. The essential difference between the two is that an agent represents his principal inbusiness dealings and is employed to establish contractual relations between the principal and third persons, while a servant is not.

As a general rule,a servant is employed toperform certain acts in away that is ormay be specified, and he may not use his discretion as to the means to accomplish the end for which he is employed. Thisbeing so, the serviceperformableby a servant for his employer may be inferior in degree to work done by an agent for his principal. (Emphasis added.)

53Arn.Jur.2d 84-85,Master and Servant,5 3. The argument that amere employee is not an agent in the

sense of S 2-9-111, MCA, is buttressed when one examines 5 2-9-305, MCA. 

### his statuteprovides indemnity for employees who are sued for actionable conduct in their service of the government. The indemnity is for fullcostof settlements or judgments, as well as for costs and attorney fees. As applied to the relators in this case, if this Courtproperly held that they were not within the immunity umbrella, they would be protected completely from pecuniary loss for suits against them arising out of their employment. The use by the legislature of the term "agents" in S 2-9-111,MCA, and the

use of "employees" in 5 2-9-305, MCA, shows that the legislature found a difference in their meanings as applied to the conceptof immunity. Iwould construe the legislative intent to be that "employees" in S 2-9-305, MCA, included both employees and agents; but that "agents" in S 2-9-111, MCA, did not include merely mechanical employees holding purely perfunctory jobs not related to the formation or execution ofpolicy in the field of jurisdiction entrusted to the governmentalunit.It is a perversion of the theory of principal and agent to contend that the janitorial employees were "agents"of the trustees themselves individually. The janitorial employees

were in the service of the district, and not in the service of the trustees individually. Thus, trustees under 5 20-3-324,MCA, outlining thepower and duties of trustees for each school district,have the power and it is their duty to: (2) employ and dismiss administrative personnel, clerks, secretaries, teacher aides, custodians, maintenance personnel, school bus drivers, food -personnel, nurses, and any other personnel considered necessary to carry out the various services 

### -- of the district


# .

# . .. (~mphasis added.) ~avingin mind then that a janitorial employee is not within the legal sense an "agent" of the school district, immunity does not accrue to the school district under 5 2-9-111,MCA,which grants immunity only as follows: (2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof. (Emphasis added.)

Because the janitor is not an agent of the school district, but rather its mere employee, immunity does not to the school district in this case. Now let us consider what is meant by "action by the legislativebody." Section 2-9-111,MCA, grants immunity to the members of the schoolboard under the following language: (3) A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawfuldischarge of an officialduty associated with the introduction or consideration of legislation or action by the legislative body.
From what we have said above, it is obvious that a janitorial employee is not an agent of a legislative body, but rather is an employee of the district, and as such,immunity does not attach to the members of the district by

reason of acts of the janitorial employees. In my judgment,

we do not have a question of immunity as far as the school district trustees are concerned,but ratherwhether they are simply not subject to liability because the acts of the janitorial employees were not imputable to the individual school district trustees, but rather to the district which employed them. We do not, when private corporate employees are negligent, impute that negligence personally to the president of the corporation; only to the entity of the corporation. However, since they were employed by the school district, the theory seized upon by some is that thework of the janitors is "anofficialduty" associated with "actionby the legislativebody." Section 2-9-111,MCA. That cannotbe under the statutes. The only way that school trustees can "act" is to act collectively, and at a regular or properly called special meeting. section 20-3-301(2),MCA,provides: The trustees shall be composed of the number of trustee positions prescribed for a district by 20-3-341 and 20-3-351. When exercising the power and performiny the duties of trustees. the members shali act c~liectivel~, and only at arregularor a properly called specialmeeting. (Emphasisadded.) Section 20-3-301,MCA, stating thatmembers can only act collectively and at their regular meetings rnust be read in - par materia with S 2-9-111, MCA, which says that the individualmembers are immune for "actionby the legislative body." The actions of a janitor in maintaining or failing to maintain school premises have no relation to the actions taken by the legislative body in its regular or special meetings and, since the trustees may only act collectivelyand not otherwise, S 2-9-111,MCA, cannot be read to extend immunity on the very wispy basis that a janitor cleaning off steps to a gym is involved in "action by the legislative body." That contention is simply ridiculous. Both of the statutes, S 2-9-111, MCA, and S 20-3-301, MCA, must also be read - inpari materia with S 20-3-332,MCA, whichprovides as follows: Personal immunity and liability of trustees. (1) 

### .- When acting in thelr official capacity-- at a regular or special meeting of the board or a committee 

### - -- - thereof, the trustees of each di2trict are individually immune from exemplary and punitive damages. (Emphasisadded.)
The "action" of the board trustees can only occur at regular or special meetings and it is only at such meetings that they have an official capacity. Again this statute is a further indication that the legislative immunity granted in 5 2-9-111,MCA, tomembers and agentswas never comprehended to grant immunity to school districts for the non-legislative wrongful acts or omissions of the janitorial employees.

There is a sardonic element in this case. The real party in interest shouting "governmental immunity" is probably an insurer. It sold a policy to the school district, promising coverage for comprehensive liability. Because of this Court, the insurerwas never at risk for any wrongful acts of the school district personnel outside of motor vehicles. Its premium is pure gravy. In more enlightened former days in Montana, we had statutes which required insurers of state and sub-state risks to waive the defense of immunity. (Former 5 40-4401, R.C.M. (1947); former S 33-23-101, MCA)

# . In order to provide a better business climate for insurers, the Montana legislature repealed this requirement in 1979 (Ch. 425, S 4, Laws of1979; the repealer was contained in S.B. 380, introduced by Senators Hafferman,Towe and Turnage). The line of cases by which this Court has extended governmental immunity to cover any and all acts of the governmentalentities (exceptfor the state itself) and their various members, officers, agents and employees, is such a reversal of history and sound legal thought that it boggles the imagination. We should have begun, in this case, to pick up the pieces. There are problems in defining the duties of school board trustees as they are outlined in the statutes; and in defining the relation ofmere mechanical personnel to the school boards as legislative bodies. We should restructure legislative immunity in this state so as not to comprehend and includemerely administrative functions. That is how Iwould decide this case.

Justice 

### c(J~ustice ~illiam E. Hunt, Sr.,dissenting:

I dissent. I concur generally with the foregoing dissent of justice Sheehy and in particular with what he has to say about the case of Bieber v. Broadwater County (Mont. 1988), 759 P.2d 145. As the author of that case, I can not believe it has been used as the seminal case to destroy immunity provided by the Montana Constitution, but if the effect leads to this conclusion, then Ivote to overrule the

case in its entirety. To extend the act of a County Commissioner performing in his capacity as a ~ommissioner/legislator whose act was ratified by the legislative body to which he belonged, to a snow-shoveling janitor's failure to protect the public by maintaining sidewalks in a safe condition is, as Justice Sheehy too mildly said, "unsupportable." I say it is ludicrous and unbelievable.