No. 84-122 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

GARY LEE SPEIJCER and GAYLE 

SPENCER, husband and wife, 

Plaintiffs and Respondents, 

FLATHEAD COUNTY, a political 

subdivision of the State of 

Montana, and STATE OF MONTANA, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Nineteenth Judicial ~istrict, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Murphy, Robinson, Heckathorn & Phillips; Kalispell, 

Montana 

Ted Lympus, County Attorney, Kalispell, Montana 

Murray Kaufman, Vidal & Gordon, Kalispell, Montana 

-me&.-:, ::L!- 

For Respondents: 

Sverdrup & Spencer, Libby, Montana 

Submitted on Briefs: May 31, 1984 

Decided: September 27, 1984 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Flathead County and the State of Montana. appeal from an 

order of the Lincoln County District Court denying their 

request for a change of venue from Lincoln County to Flathead 

County. The trial court held that it was proper to bring 

this action in Lincoln County as that is where plaintiff Gary 

Lee Spencer was mistakenly arrested. We affirm. 

Venue in actions brought by nongovernmental entities 

against counties is determined by section 2-9-312(2), MCA, 

which establishes venue in either the county where the cause 

of action arose, or where the county being sued is located. 

This lawsuit, filed. in Lincoln County after Gary Lee 

Spencer was arrested at his home in Lincoln County, charges 

the defendants with wrongful arrest and invasion of privacy. 

Flathead County had issued a warrant for his arrest after 

receiving erroneous information from the Parent Locator 

Service of the State of Montana, concerning a nonsupport 

claim against another person named Gary Lee Spencer. Upon 

discovering the mistake, the charges against plaintiff were 

dismissed. 

Before trial, the defendants filed a motion seeking a 

change in venue from Lincoln County to Flathead County, 

claiming that section 25-2-106, MCA, controls the venue of 

actions brought by nongovernmental entities against counties, 

and establishes venue exclusively where the county being sued 

is located. However, as we held in Hutchinson v. Moran 

(Mont. 1983), 673 P.2d 818, 40 St.Rep. 2081, the authority of 

a private entity to sue a county now exists solely by virtue 

of 1972 Mont. Const., Art. 11, 5 18, and the venue of such 
actions is determined by the more recently enacted section 

2-9-312(2), MCA. This new venue statute, enacted in 1973 

states: 

"(1) Actions against the State shall be brought in 

the county in which the cause of action arose or in 

Lewis and Clark County. In a.ddition, a resident of 

the State may bring an action in the county of his 

residence. 

"(2) Actions against a political subdivision shall 

he brought in the county in which the cause of 

action arose or in any county where the political 

subdivision is located." 

Counties are specifically included within the definition 

of a "political subdivision" by section 2-9-101(5), MCA. 

In suits brought by private entities against counties, 

the new venue statute, section 2-9-312(2), MCA, supersedes 

the venue provision contained in section 25-2-106, MCA, and 

exclusively determines the venue of such actions. Hutchinson 

v. Moran, supra. 

The new venue statute gives the plaintiffs in this 

action the option of suing Flathead County in either the 

county where the cause of action arose or in Flathead County. 

The plaintiffs properly argue that the cause of action arose 

in Lincoln County. Where a cause of action arises is to be 

determined by inquiring where the act or breach occurs which 

creates the necessity for bringing the suit. Bergin v. 

Temple (1941), 111 Mont. 539, 111 P.2d 286. In this case, 

the act giving rise to the complaint--the allegedly illegal 

arrest--occurred in Lincoln County, and that is where the 

cause of action arose. 

Under the more recent statute, section 2-9-312(2), MCA, 

venue in this action is proper in either Lincoln County or 

Flathead County. The plaintiffs chose Lincoln County. 
The order of the Lincoln County District Court denying 

Flathead County's request for a change of venue is affirmed. 

We Concur: 

'~~vP~QJLc~cPo 

Chief Justice