NO. 89-497 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

ROBERT W. KOCH, JEROME PRONOVOST, 

MABEL LOGAN, 

plaintiffs and Appellants, 

YELLOWSTONE COUNTY, METRAPARK and 

METRAPARK BOARD, 

Defendants and Respondents. 

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

In and for the County of Yellowstone, 

The Honorable Russell Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jay F. Lansing, Billings, Montana (Koch) 

Gary L. Beiswanger, Billings, Montana (Pronovost) 

Terry L. Seiffert, Billings, Montana (Logan) 

For Respondent: 

Doris M. Poppler, Billings, Montana 

Anne Sheehy, David W. Hoefer, Deputy County 

Attorneys, Billings, Montana 

Submitted: May 23, 1990 

Decided: July 12, 1990 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from an order of the Thirteenth Judicial 

District, Yellowstone County granting summary judgment to the 

defendants Yellowstone County, Metrapark, and Metrapark Board, in 

a cause of action arising from the alleged wrongful termination by 

the defendants of the plaintiff/employees. Summary judgment was 

granted on the grounds that the defendants are immune from suit 

pursuant to 5 2-9-111, MCA. We reverse and remand. 

Appellants Koch, Logan, and Pronovost, plaintiffs below, raise 

the following issues on appeal: 

(1) Did the District Court err in determining that 

Yellowstone County and MetraPark Board are immune from suit 

pursuant to 5 2-9-111, MCA, and therefore were entitled to summary 

judgment in their favor? 

(2) Did the District Court err in determining that no genuine 

issue of material fact existed thereby rendering the case 

appropriate for disposition upon the defendantsf motion for summary 

judgment? 

'3) Did the decision of the District Court granting summary 

judgment to Yellowstone County and MetraPark Board depri~. 

appellants of a constitutional right to equal protection of the 

law? 

In January of 1980 the Yellowstone County Commissioners 

created by resolution a joint commission known as the yellowst stone 

Exhibition-METRA Commissionw, later known as the MetraPark Board. 

I1MetraParku is the name of the physical complex consisting of the 

2 
Yellowstone Exhibition (fairgrounds) and the Metra Arena building 

(civic center), all of which is managed and governed by the 

MetraPark Board. 

On May 21, 1987 the MetraPark Board adopted a recommendation 

of its executive committee to reorganize its employee structure. 

The reorganization plan called for the elimination of eight 

employment positions and the creation of five allegedly new 

employment positions. On May 22, 1987, the MetraPark Board sent 

letters to the eight existing employees terminating their positions 

effective June 30, 1988. The positions held by plaintiffs Koch, 

Logan, and Pronovost---maintenance manager, switchboard operator, 

and assistant/operations manager, respectively---were among those 

eliminated. 

On May 28, 1987, the MetraPark Board personnel committee 

proposed to the County Commissioners the creation of the five new 

positions and the County Commissioners approved the recommendation 

within a few days. On June 13, 1987, the commissioners approved 

the eight previous employees1 termination and the hiring of the 

five new employees. Pronovost was given the opportunity to apply 

for the new position of "Operations Director1I but was not hired. 

Subsequently, all eight terminated employees filed suit; three of 

these suits were consolidated into the case at bar. 

The District Court denied Yellowstone Countyls initial motion 

for summary judgment based on the immunity provided by 5 2-9-111, 

MCA. This Court then handed down its decision in Peterson v. Great 

Falls School District No. 1 and A (Mont. 1989), 773 P. 2d 316, 46 
St.Rep. 880. Yellowstone County renewed its prior motion which 

the court granted based on the immunity provided in 5 2-9-111, MCA 

and Peterson. 

The plaintiffs contend that 5 2-9-111 should be interpreted 

as granting immunity to a legislative body only for legislative 

acts. We disagree. It is well settled in the line of cases 

decided under the statute that the language of the statute does not 

distinguish between legislative and administrative acts: 

Our recent decisions in Bieber [ (Mont. 1988) , 759 P. 2d 

145, 45 St.Rep. 12181 and Peterson [ (M0nt.1989)~ 773 P.2d 

316, 46 St.Rep. 8801 clearly disposed of this issue. 

While the statute is entitled "Immunity from suit for 

legislative acts and omission^,^ 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 

plaintiff's distinction between administrative and 

legislative acts "because the plain language 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 (M0nt.1987)~ 226 Mont. 470, 736 

P.2d 132, 134. 

State ex rel. Eccleston v. Third Judicial District Court (Mont. 

1989), 783 P.2d 363, 367, 46 St.Rep. 1929, 1934. Accordingly, in 

determining whether immunity is afforded to the defendants in this 

case, we look to the plain meaning of the language of the immunity 

statute, 5 2-9-111, MCA. The statute provides: 

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

omissions. (1) As used in this section: 

(a) the term Itgovernmental entityw 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. 

We now examine the nature of the entities named as defendants 

in this case---Yellowstone County, MetraPark, and MetraPark Board- 

--to determine if and to whom statutory immunity applies. 

Yellowstone County is clearly a governmental entity under 

subsection (1). According to the plain meaning of subsection (2), 

the County is immune from suit if the MetraPark Board is a 

legislative body of the County or an agent thereof. 

Subsection (1) (b) of § 2-9-111, MCA defines lglegislative bodyvv 

as "the legislature . . . and any local governmental entity given 

legislative powers by statute, including school boards. 

Legislative power includes the power to make, alter, or repeal laws 

or rules for the future, 16 C.J.S. Constitutional Law 5 113, pp. 

377-378; Springer v. Philippine Islands, (1927), 277 U.S. 189, 201- 

202, 72 L.Ed. 845, 849, 48 S.Ct. 480, 482; as well as the power to 

control fiscal matters, such budgets, appropriations and levy 

of taxes. 

The statutory powers of the separate fair commission and the 

civic center or building commission constituting the MetraPark 

Board are found in chapter 8 and 21 of title 7, Montana Code 

Annotated. Section 7-8-2103, MCA, authorizes the County 
Commissioners to create a county building commission for 

. . . the management of such civic center, youth center, 

park buildings, museums, county parks, recreation 

centers, hospitals, or any combination of two or more 

thereof. Such commission shall be composed of the 

chairman of the board of county commissioners and five 

lay members to be appointed by the board. In cases where 

a commission has been appointed, the commission, together 

with the board, shall have the power to employ a manager. 

Section 7-8-2103, MCA. Sections 7-21-3401 et seq., MCA, 

authorizes the County Commissioners to create county fair 

commissions and sets forth the terms of office of such 

commissioners, 5 7-21-3402; the necessary qualifications, 5 7-21- 

3403; the organization of the commission, 5 7-21-3404; and the 

compensation of the commissioners, 9 7-21-3405. The county fair 

commission also has specific statutory powers: 

7-21-3406. Powers of county fair commission. BY 

resolution of the board of county commissioners, the 

county fair commissioners shall have control and 

operation of the fair and the supervision and management 

of the fairgrounds . . . 

The fair commission also has specific duties: 

7-21-3407. Duties of county fair commission. (1) The 

commission shall do all things necessary to hold a 

successful annual county agricultural fair . . . including: 

(a) employment of labor; ... 

(el everything necessary in conducting the 

continuing operation of the county fairgrounds and 

buildings. 

(2) The commission shall have charge of all 

fairgrounds and fair property. 

These duties and powers are by their nature executive or 

administrative. The Metrapark Board is a joint commission created 

by resolution of the County Commissioners combining the powers of 
the civic center and fair boards. With regard to the powers of 

the Metra Park Board, plaintiffs cite a September 4, 1987 Attorney 

General's Opinion as authority that the Yellowstone County 

Commissioners had no authority to create a joint commission 

comprised of the fair board and the civic center board that 

empowers these individual boards to vote on matters pertaining to 

the statutory authority vested in the other. See 55 7-8-2103 and 

7-21-3401, MCA, supra. Although we find it unnecessary to 

specifically address this issue to dispose of this case, it is 

worth noting that the 1989 Legislature, apparently in response to 

an Attorney General's opinion, enacted legislation authorizing a 

county board of commissioners to create a joint fair and civic 

center commission, as already existed for ten years in Yellowstone 

County: 

7-21-3451. Authorization to create a joint fair and 

civic center commission. (1) the board of county 

commissioners shall have the power to create a joint 

fair and civic center commission for the management and 

operation of the fairgrounds and civic centers within the 

county. 

(2) The board of county commissioners of a county 

upon application fromthe regularly appointed county fair 

commission and county building commission, may by 

resolution create a joint fair and civic center 

commission. 

(3) The joint fair and civic center commission is 

vested with the full powers granted to the county fair 

commission and the county building commission. 

See, crenerallv, 55 7-21-3451 through -3458. The duties of the 

joint commission are also the same as the combined duties of the 

county fair commission and the county building commission. Section 

It is evident from these statutes that the statutory powers 
of the MetraPark Board are limited to the management and operation 

of the Metra Civic Center and do not include any authority to make, 

alter, or repeal laws or rules. Clearly the MetraPark Board is 

not vested with the legislative power of a school board as in 

Peterson and Eccleston nor does it have the legislative power of 

a board of county commissioners as in Bieber and Miller v. Fallon 

County (Mont. 1989), 783 P.2d 419, 46 St.Rep. 2087. The MetraPark 

Board clearly performs statutory executive functions and is not 

a legislative body. 

The second part of our analysis under subsection (2) of 5 2- 

9-111, MCA, is to determine whether MetraPark Board is an agent of 

the Board of County Commissioners of Yellowstone County, the per 

se legislative body of Yellowstone County. While the District 

Court relied Peterson granting summary judgment the 

defendants, our recent decision in Eccleston more clearly 

addresses the relationship between agency and the immunity of 2- 

9-111, MCA. In Eccleston we held that a school principal and 

janitors were agents of the school board within the meaning of 5 

2-9-111, MCA, providing them immunity from suit for an alleged 

negligent failure to remove ice and snow from steps at the school 

gymnasium. In Eccleston, we relied on the Restatement 2d of 

Agency. Under the Restatement, the crucial factor in this agency 

determination is control by the principal: 

8 1. Agency; Principal; Agent. 

(1) Agency is the fiduciary relation 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. . . . (Emphasis added.) 
Restatement 2d of Agency, 5 1. In Eccleston we recognized that the 

school boards are expressly given the right to control principals 

and janitors, including the right to employ and dismiss them as 

deemed necessary, by statute. See § 20-3-324, MCA. 

In this regard, the case at bar differs from Eccleston. While 

the Board of County Commissioners has the authority to supervise 

all county officers in the performance of their duties, relative 

to assessins, collectins, safekeepins, manasement or disbursement 

of the public revenues, the Board does not have the power to 

perform county officers' statutory duties for them or direct the 

manner in which duties are performed. Section 7-4-2110, MCA, 

Arnold v. Custer County (1928), 83 Mont. 130, 146-47, 269 P. 396, 

401; Hicks v. Orange County Board of Supervisors (1977), 138 

Cal.Rptr. 101, 109, 69 Cal.App.3d 228, 242; People v. Langdon 

(1976), 126 Cal.Rptr. 575, 578, 54 Cal.App.3d 384, 390; see 

senerally 20 C.J.S. Counties, 5 85, p.854. Here, there is no 

specific statutory grant of power to the Board of County 

Commissioners giving it the right to control the civic center 

board, the fair board, or the MetraPark Board relative to the 

employment function. With respect to the employment of personnel, 

the MetraPark Board has independently derived statutory powers 

granted by the legislature and thus is not subject to the control 

of the Board of County Commissioners regarding the exercise of that 

function under these facts. Therefore, under the Restatement the 

MetraPark Board is not the agent of the County Commissioners with 

respect to the employment of plaintiffs here. Accordingly, the 
MetraPark Board is not immune from suit under 5 2-9-111 (2) , MCA, 

as an agent of a legislative body. We are not however, detracting 

from the powers of the Board of County Commissioners to fix the 

number of employees, the salaries and benefits, or adopt personnel 

policies, when such is a facet of its statutory authority to adopt 

a county budget and levy taxes to finance the same. 

Furthermore, although it is not an agent of the County 

Commissioners, the Board and the members of the Board are 

nevertheless officers of Yellowstone County, just as the County 

Superintendent of Schools, the County Clerk and Recorder, and other 

statutorily created executive officers are, and the County is 

subject to indemnify such officers for their torts while acting as 

a Board under 5 2-9-305, MCA. 

The MetraPark Board is neither a legislative body or an agent 

thereof, therefore it is not immune from suit under 5 2-9-111, MCA. 

Having concluded that immunity does not extend to the MetraPark 

Board, we need not address the other issues raised on this appeal 

as the lower court did not rule upon them. 

REVERSED AND REMANDED. 

We Concur: 

3' 
fristrict Judge Larry W. Moran specially concurring: 

Mr. Justice McDonough's Opinion is an exhaustive and 

entirely appropriate analysis of the facts and law in the case, 

and I concur in the result. Even so, the style, content, and 

length of the Opinion is representative of difficulties 

encountered in a departure from traditional common law procedure. 

Historical developrrient of the common law has proceeded from 

court recognition of facts and theory, to enunciation of legal 

principles, thence to establishment of precedent. This 

progression has been the strength and flexibility of judge made 

law, and the primary reason for its effectiveness and durability. 

However, this sequence is not apparent in recent decisions 

regarding the issue of governmental immunity and the effect of 

S 2-9-111, MCA. In fact, the exact reverse has occurred. 

Instead of moving forward to the establishment of precedent, the 

movement has been to a self-perpetuating case by case pattern of 

decision. 

It is respectfully suggested that a case by case 

determination of the complex and important issue of governmental 

immunity and applicability of § 2-9-111, MCA, tends to create 

confusion and instability. Many fine and intricate distinctions 

(such as those reflected in Justice McDonough's Opinion) will, 

inevitably, become finer, more intricate, and more complex as the 

struggle to maintain logic intensifies; there will be 

distinctions within distinctions, and the reasons for decisions 
will becume, essentially, inscrutable; and, precedent will becume 

more elusive. 

In the evolution of tort liability, primary emphasis has 

been directed to the act or conduct producing a cause of action. 

It is proper in a democracy where the law must be on guard when 

extending special rights, privileges, or immunities, that 

liability be based on acts or conduct, not on the nature or 

character of the actor. Unfortunately, in fixing liability in 

cases involving governmental immunity and 5 2-9-111, MCA, 

attention has been misdirected to a matter deserving only passing 

interest -- the nature or character of the actor -- with act and 

conduct generally ignored. This, too, seems to be a departure 

from the tested and proven way of the common law. 

How beneficial i.t would be to see (or to write) an opinion 

on governmental immunity considering provisions of § 2-9-111, 

MCA, simply concluding: "the act giving rise to the cause of 

action is clearly administrative or executive, not legislative. 

Hence, governmental immunity does not attach" -- or the reverse, 

in applicable situations. 

Hon. &rry\~. fi 

~istrict-%i?d~e, sitting for 

the Hon. Justice John C. 

Sheehy 
We concur in the faregcling specially cancurring opinion ef 

District Judge Moran. 

i?!Lewa Hon. Thomas A. Olson 

District Judge sitting for 

the Hon. Justice Diane G. Barz