No. 89-040 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, ex rel., 

ROBERT ECCLESTON, KEVIN SULLIVAN 

AND ELMER CARSONE, 

Relators, L 

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DEER LODGE COUNTY, and THE HONORABLE w --: <. --I 

TED MIZNER, Presiding District Judge, _., -- 77 - $ r' 

Respondents. 3. i-- 

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ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relator: 

C. Richard Anderson 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 

Joseph C. Connors argued, Anaconda, Montana 

Bernard J. Everett argued; Knight, Dahood, McLean & 

Everett, Anaconda, Montana 

For Amicus Curiae: 

Bruce W. Moerer, Montana School Boards Association, 

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 relators as defendants in the action below. 

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 dismissals were based on the immunity provisions 

of S 2-9-111, MCA. 

At plaintiff's request, we identified the following 

issues for determination 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 expiration of 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 plaintiff Mary Fitzpatrick fell down 

the alley stairs leading down to the Memorial Gymnasium in 

Anaconda, Montana. The gym is owned by School District No. 

10. On August 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. The motion 

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 

District No. 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 thus was not barred by the three year statute 

of limitations. The relators and school district 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 

District No. 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 District Court erred in dismissing 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 

fully brief the immunity issues" to avoid "piecemeal appeals" 

and to place the Court "in a position of rendering a decision 

with the benefit of all relevant facts and argument." On May 

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), 217 Mont. 106, 114, 703 P.2d 148, 153-54. One of the 

functions of the writ is to control the course of litigation 
in lower courts, where those courts are proceeding within 

their jurisdiction but under mistake of law by doing a gross 

injustice, and there is no appeal or the remedy by appeal is 

inadequate. State ex. rel. Shores v. District Court (1903) , 

27 Mont. 349, 71 P. 159; State ex. rel. Whiteside v. District 

Court (1900), 24 Mont. 539, 63 P. 395. 

There are no written regulations or laws respecting our 

power of supervisory control. Rather, we have proceeded on a 

case-by-case basis being careful not to substitute the power 

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 cause below is mired in procedural 

entanglements and appeal is not an adequate remedy, we will 

issue a writ of supervisory control. State ex rel. Levitt v. 

District Court (1977), 172 Mont. 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 the propriety 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 lawsuit below. 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 Rule provides: 

Rule 15(c). Relation back of amendments. Whenever 

the claim or defense asserted in the amended 

pleading arose out of the conduct, transaction, or 

occ,urrence set 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 relates back if the foregoing provision 

is satisfied and, within the period provided by law 

for commencing the action against him, the party 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 against him. . . . 

Rule 15 (c) , M.R.Civ.P. -- See also Schiavone v. Fortune (1986) , 

477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18, 27. 

Kilkenny holds that the extent of 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 plaintiffs had notice of their mistake in naming 

the proper parties when defendant school district amended its 

answer to assert the immunity defense. Relators contend that 

the extent of this information held by the plaintiffs caused 
them to believe that they were not named because of strategic 

reasons rather than as a result of mistaken 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 the possible impropriety 

of the school district as a defendant. The amended answer did 

not indicate that the relators alone might be or were 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 

relator employees were the proper parties to the suit is when 

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 of whether the proposed defendants knew or 

should have known that but for a mistake in identity of the 

proper parties the suit would have been brought against them. 

In this regard the defendant employees are the 

personification of the school district. They were 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 

employees and the school district itself, and in light of the 

arguably unsettled immunity question presented in this case, 

we agree with the District Court's conclusion that: 

there was no mistake as to the identity of the 

District employees who were involved in the 
circumstances 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. . . . (Emphasis by the District Court.) 

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 issuance of the writ. 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 scope of employment and not involving the use of a 

motor vehicle, aircraft, or other means of transportation. 

The statute provides: 

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 . . . 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. 
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 District No. 1 and A (Mont. 1989), 773 

P.2d 316, 46 St.Rep. 880. Plaintiffs contend 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 "Immunity from 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 "action by 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'distinction between administrative 

and legislative acts "because the plain 1ang.uage of the 

statute makes no such distinction". Bieber, -- 759 P.2d at 147. 

We will not delve outside the plain meaning of the words used 

in a statute. W.D. Construction, 707 P.2d at 1113, Barnes v. 

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 statute requires involvement by a legisl-ative body, i.e. 

the school board, before immunity can arise. Plaintiffs 

concede that the school district is a governmental entity and 

the school board is a legislative body under subsection (1). 

However, plaintiffs argue that the school district, not the 
school 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 school board: 

(2) A servant -- is an agent employed by a master to 

- perform service in his affairs whose physical - - conduct in the performance of the service is 

controlled or is subject to the right to control by 

the master. (Emphasis added.) 

Restatement 2d of Agency, 52. Thus, an agent includes one 

who performs only manual labor as a servant. Restatement 2d 

of Agency, 51, comment (el . The board of trustees for each 

school district has the power 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 the various services 

- of -- the district. . . . (Emphasis added). 

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 jurisdiction -- of the trustees prescribed by this 

title. . . . (Emphasis added). 

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 make 
sense to say that relators are agents of the district but not 

the board responsible for hiring them and governing the 

district and the district'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, 

773 P.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 to provide sufficient funding 

for maintenance of the stairs and employment of additional 

custodians are omissions by its legislative body, the school 

board. The omissions of the relators occurred during the 

lawful discharge of duties associated with these omissions by 

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 statute clearly affords immunity to a governmental entity 

"for an act or omission of its legislative body or a member, 

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 and 
failure 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 legislature had 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., 649 P.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 opinion we 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 a writ of supervisory 

control should iss.ue in this case in order for us to clarify 

the immunity question. We recognize that for us to first 

hold that the confusion regarding immunity requires 

supervisory control and then to hold that the statute clearly 

grants immunity to the relators may seem a bit contradictory. 

In this regard, we are not asserting in this opinion 

that the statute is unequivocally clear at first glance. 

Indeed, several interpretations of 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 in Bieber 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 interpretation of § 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 the District Court to dismiss the relators based on 

the immunity granted by § 2-9-111, MCA. 

The cause is remanded to the District Court for further 
We Concur: 

Justices 
Justice John C. 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 charge of brooming off snow from the steps outside 

of a school gymnasium is engaged as an agent in legislative 

action. So say the majority. 

It will be small comfort to the plaintiff Mary 

Fitzpatrick that the majority are marching 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 the King to obey the law rather 

than simply repudiating the doctrine itself. They 

-- held his advisors -- and his agents responsible. 

(Emphasis added. ) 

will v. ~ichigan Dept. of State police (1989), U.S. 

, 109 S.Ct. 2304, 2320-2321, 105 L.Ed.2d 45, 68-69 

(~ustice John Paul Stevens, dissenting). 

The majority in this case have carried governmental 

immunity to a far greater 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 is not clear. 

It is so unclear that they are brought to the admission that 

they are not asserting in this Opinion "that the 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." 

(Slip opinion, page 12. ) They said so; ergo, it is. Let us 

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 discharge of 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 legislative body is immune if 

the discharge of his official duty was "associated -- with the 

introduction - or consideration of legislation or action by the 

legislative body." The majority, by their interpretation, 

eliminate several words 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 

action by the legislative body." The majority interpretation 

violates grammatical and statutory rules-of construction. We 

are required not to insert what has been omitted or to omit 

what has been inserted, and when there are several provisions 

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, the 
intention 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 

to promote justice. section 1-2-103, MCA. 

The intent of the legislature can be gleaned from the 

heading it used in enacting the statute: "Immunity from suit 

for legislative -- acts and omissions." That heading is a part 

of the statute. 

The meaning of 5 2-9-111(3), MCA, is not plain and clear 

as the majority contends. Further militating against their 

position, as far as legislative intent is concerned, are the 

provisions of S 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 legislature under Art. 11, 5 18, of 

The Constitution of the State of Montana. 

(Emphasis added.) 

The majority, by their interpretation of 5 2-9-111, MCA, 

have abrogated the provisions of § 2-9-102, MCA, because now 

under the holdings 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 ~ieber to 

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. 

I dare say that no attempt was made by School District No. 10 

to ratify the non-cleaning of its sidewalks by 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 immunity be 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 

unequivocally abolished 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 school district. 

The term "agency" has no meaning at all when applied to 

a janitorial employment. 

The term "agency" means a fiduciary relationship by 

which a party confides to another the management of 

some business to be transacted in the former's name 

or on his account, and by which such other assumes 

to do the business and render an account of it. It 

has also been defined as the fiduciary relationship 

which results from the manifestation of consent by 

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. ) 

3 Am.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 relationship most closely related to the master 

and servant relationship is, of course, that of 

principal and agent. Both relate to employment and 

express the idea of service, and both agents and 

servants are workers for another under expressed or 

implied agreement. Indeed, the law of agency is an 

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 sense both 

apply to persons in the service of another. A 

master is a species of principal and a servant a 

species of agent. As a result, the words "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 

represent him in the business, while a mere servant 

has no such authority, but renders purely 
mechanical services as directed by his employer. 

The essential difference between the two is that an 

agent represents his principal in business 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 to perform 

certain acts in a way that is or may be specified, 

and he may not use his discretion as to the means 

to accomplish the end for which he is employed. 

This being so, the service performable by a servant 

for his employer may be inferior in degree to work 

done by an agent for his principal. (Emphasis 

added. ) 

53 Arn.Jur.2d 84-85, Master and Servant, 5 3. 

The argument that a mere 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 statute provides indemnity for employees 

who are sued for actionable conduct in their service of the 

government. The indemnity is for full cost of settlements or 

judgments, as well as for costs and attorney fees. As 

applied to the relators in this case, if this Court properly 

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 concept of immunity. I would 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 of policy in the field of jurisdiction entrusted to 

the governmental unit. 
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 the power 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.) 

~aving in 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 

legislative body." 

Section 2-9-111, MCA, grants immunity to the members of 

the school board under the following language: 

(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. 

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 rather whether 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 the work of 

the janitors is "an official duty" associated with "action by 

the legislative body." Section 2-9-111, MCA. That cannot be 

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 arregular or a 

properly called special meeting. (Emphasis added.) 

Section 20-3-301, MCA, stating that members 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 

individual members are immune for "action by 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 collectively 
and 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 - in pari materia with S 20-3-332, MCA, 

which provides 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. (Emphasis added. ) 

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, to members and agents was 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 insurer was 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 of 
1979; 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 

governmental entities (except for 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 of mere mechanical personnel to 

the school boards as legislative bodies. We should 

restructure legislative immunity in this state so as not to 

comprehend and include merely administrative functions. That 

is how I would 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 I vote 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.