No. 87-472 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

WILLIAM KOPPEN and KIMBERLY KOPPEN, 

Individually; and WILLIAM KOPPEN, as 

Personal Representative of the Estate 

of CALLY JANE KOPPEN, Deceased; and 

ALAN R. BUCK and SUSAN K. BUCK, 

Individually; and ALAN R. BUCK, as 

Personal Representative of the Estate 

of MELISA SUE BUCK, Deceased, 

Plaintiffs and Appellants, 

BOARD OF MEDICAL EXAMINERS and STATE 

OF MONTANA, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Trieweiler Law Firm; Terry N. Trieweiler argued, 

Whitefish, Montana 

For Respondent : 

Harrison, Loendorf & Poston; John Poston and Stephen 

McCue argued, Helena, Montana 

John H. Maynard, Dept. of Administration, Helena, 

Montana 

Submitted: April 281 1988 

Decided: August 11, 1988 

Filed : bU6 2 1 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Plaintiffs William and Kimberly Koppen (Koppens) and 

Alan and Susan Buck (Bucks) appeal from the order of the 

District Court of the Eleventh Judicial District, Flathead 

County, dismissing their complaint against defendants Board 

of Medical Examiners (Board) and State of Montana. We affirm. 

The appellants present one issue on appeal: 

"Does Section 2-9-112, M.C.A., which provides fox 

judicial immunity, extend to executive agencies, such as the 

Montana Board of Medical Examiners, for negligent failure to 

perform their statutory duties?" 

Plaintiffs Kimberly Koppen and Susan Buck both became 

pregnant during the summer of 1983 and contracted with Dr. 

David V. Kauffman for assistance with the delivery of their 

babies, expected during March of 1984. The baby born to the 

Koppens died after a short period of survival. The baby born 

to the Bucks died at the age of 84 months. 

The Koppens and the Bucks filed suit against the Board 

and the State on February 18, 1987, alleging the Board was 

negligent in failing to limit or revoke Dr. Kaufman's license 

to practice medicine, or otherwise prevent him from 

practicing obstetrics. According to the complaint, the Board 

had received complaints about Dr. Kaufman's fitness to 

practice medicine but failed to respond to them. The 

complaint characterized this as a failure by the Board to 

discharge its duty under 5 37-3-202, MCA, to ensure that all 

physicians licensed in Montana maintain standards of conduct 

in the greatest public interest. The complaint alleged that 

because of the Board's failure, Dr. Kauffman's treatment was 

below the level of care and skill required of physicians in 
Montana, which caused avoidable complications in the two 

pregnancies and resulted in the deaths of both infants. 

On April 1, 1987, the Board and the State filed a motion 

to dismiss based on the contention that the Board performs a 

quasi-judicial function, thereby entitling both defendants to 

absolute immunity from suit. The District Court granted the 

motion by its order of September 28, 1987, and thereafter 

entered judgment in favor of the Board and the State. 

The rationale in the District Court's Order began by 

quoting portions of 5 2-9-112, MCA: 

(1) The State and other governmental units are 

immune from suit for acts or omissions of the 

judiciary. 

(2) ... (3) The Judiciary includes those courts established 

in accordance with Article VII of the Constitut-ion 

of the State of Montana. 

The court pointed out that the term "includes" in 

subparagraph 3 of the statute is not a "limiting term." 

According to the court, if the legislature had wanted to 

limit the immunity, it could have drafted the provision to 

mean specifically only those courts established under Article 

VII. Because the word used was "includes," the court 

determined that the legislature's grant of immunity extended 

to admini-strative agencies exercising "quasi-judicial" 

authority. 

The court cited Butz v. Economou, 438 U.S. 478, 98 S.Ct. 

2894 (1978), as stating the correct rationale for 

quasi- judicial immunity. In Rutz , the TJ. S. Supreme Court 

began its analysis of quasi-judicial immunity by stating the 

rationale for judicial immunity: 

[Cl ontroversies sufficiently intense to erupt in 

litigation are not easily capped by a judicial 

decree. The loser in one forum will frequently seek 
another, charging the participants in the first 

with unconstitutional animus. [citation omitted.] 

Absolute immunity is thus necessary to assure that 

judges, advocates, and witnesses can perform their 

respective functions without harassment or 

intimidation. 

Butz, 98 S.Ct. at 2913. The court then examined the nature of 

administrative proceedings and the controversies involved, 

and concluded: 

We think that adjudication within a federal 

administrative agency shares enough of the 

characteristics of the judicial process that those 

who participate in such adjudication should also be 

immune from suits for damages. 

Butz, 98 S.Ct. at 2914. In this case, the District Court 

applied the rule in Butz to the Board, a state administrative 

agency, and concluded that the Board's adjudicatory function 

would warrant quasi-judicial immunity, which the court found 

to be afforded by 5 2-9-112, MCA. 

The appellants argue that the District Court's reading 

of S 2-9-112, MCA, is too liberal. Appellants' brief outlines 

general rules of statutory construction stating that any 

statute in derogation of rights otherwise guaranteed by a 

constitution must be strictly construed. The right involved 

in this case, according to appellants, is the right to sue 

state government entities in tort, whi.ch they assert is 

conferred by Article 11, Section 18 of the Montana 

Constitution: 

The state, counties, cities, towns, and all other 

local governmental entities, shall have no immunity 

from suit for injury to a person or property, 

except as may be specifically provided by law by a 

2/3 vote of each house of the legislature. 

Appellants argue that the grant of judicial immunity in § 

2-9-112, MCA, is in derogation of this right, and must 
therefore be construed strictly. The brief notes that the 

Board is an executive agency created pursuant to Art. VI of 

the constitution rather than Art. VII, which in appellants' 

view places the Board outside the scope of the judicial 

immunity found in § 2-9-112, MCA. The conclusion drawn from 

this by appellants is that they have the right to sue the 

Board and the State for negligence, and the District Court 

was in error when it dismissed their suit. 

The decision of the District Court was rendered on a 

motion to dismiss. The judge sat without a jury, no testimony 

was taken and the facts are relatively uncontested. In cases 

such as this, our scope of review is much broader, and we are 

free to make our own examination of the entire case and make 

a determination in accordance with our findings. Shimsky v. 

Valley Credit Union (1984), 208 Mont. 186, 189-90, 676 P.2d 

1308, 1310. However, we will affirm the result reached by the 

District Court if it is correct, even if the reasons given 

for that result are incorrect. Shimsky, 676 P.2d at 1310. 

The District Court was correct in concluding that the 

Board is entitled to quasi-judicial immunity from suit. 

However, we do not need to read § 2-9-112, MCA, as providing 

for quasi-judicial immunity. The Board's quasi-judicial 

immunity is derived from the common law, which we hold to be 

controlling here. 

Article 11, Section 18 of the Montana Constitution 

abolished sovereign immunity in Montana. The Bill of Rights 

Committee of the 1972 Constitutional Convention stated in its 

Comments accompanying the proposed text of Section 18 that 

its purpose was to abolish "the archaic doctrine of sovereign 

immunity." 2 Mt. Leg. Council, Montana Constitutional 

Convention, 1971-72, 637. In reporting Section 18 to the full 

convention for approval, Delegate Murray of the Bill of 

Rights Committee stated, "We feel that the doctrine of 
sovereign immunity, which we are attempting to do away with 

by this particular provision, really means that the king can 

do whatever he wants but he doesn't have to pay for it; and 

we'd like to do away with that doctrine." 5 Mt. Leg. Council, 

Montana Constitutional Convention, 1971-72, 1760. This Court 

duly recognized the demise of sovereign immunity when the 

question first came before us in No11 v. City of Bozeman 

(1975), 166 Mont. 504, 534 P.2d 880. 

However, sovereign immunity is not at issue here. We are 

instead dealing with the doctrine of quasi-judicial immunity. 

As we have previously held, there were and are immunities 

separate and distinct from sovereign immunity, unaffected by 

the language of Art. 11, Sec. 18. As a particularly relevant 

example, in State ex rel. Dept. of Justice v. District Court 

(1977), 172 Mont. 88, 560 P.2d 1328, and more recently in 

Ronek v. Gallatin County (Mont. 1987), 740 P.2d 1115, 44 

St.Rep. 1275, this Court held that Art. 11, Sec. 18 did not 

abolish the common-law doctrine of prosecutorial immunity. 

As with prosecutorial immunity, quasi-judicial immunity 

is not a subject of Montana statutory law. Section 1-1-108, 

MCA, provides where the law is not declared by statute, the 

common law shall be the rule of a decision. The common law 

rule of quasi-judicial immunity was reviewed by the U.S. 

Supreme Court in the Butz decision, which in turn was cited 

by the District Court. The opinion in Butz squarely addressed 

the issue raised by appellants that executive officials or 

agencies are not judicial bodies and should not be immunized 

as such. Expanding on its statement quoted above that 

administrative adjudications have enough in common with 

judicial process to warrant immunity, the U.S. Supreme Court 

said, 

Judges have absolute immunity not because of their 

particular location within the Government but 
because of the special nature of their 

responsibilities. This point is underlined by the 

fact that prosecutors--themselves members of the 

Executive Branch--are also absolutely immune. 

We also believe that agency officials performing 

certain functions analogous to those of a 

prosecutor should be able to claim absolute 

immunity with respect to such acts. The decision to 

initiate administrative proceedings against an 

individual or corporation is very much like the 

prosecutor's decision to initiate or move forward 

with a criminal prosecution. 

The discretion which executive officials exercise 

with respect to the initiation of administrative 

proceedings might be distorted if their immunity 

from damages arising from that decision was less 

than complete. 

Butz, 98 S.Ct. at 2913, 2915. The Butz court thus 

characterized quasi-judicial immunity as the logical 

descendant of prosecutorial immunity, which this Court 

recognized in Dept. - of Justice and Ronek. Both are founded 

upon the nature of the functions carried out by agencies or 

officials. See Ronek, 740 P.2d at 1116. 

The discretion vested in the Board to weigh the 

information relative to Dr. Kauffman rendered it a 

quasi-judicial body. This is also evident from the statutes 

dictating the procedures to be followed. The Board cannot 

revoke or suspend a license to practice medicine without 

giving notice and opportunity for hearing, a hearing at which 

the doctor concerned may be represented by counsel and offer 

evidence. Section 37-3-323, MCA. Such a hearing is governed 

by the Montana Administrative Procedure Act, and the decision 

reached is subject to judicial review. Sections 2-4-702 and 

2-4-631, MCA. The task performed by the Board thus comes 
within the statutory definition of "quasi-judicial function" 

found at B 2-15-102(10), MCA. 

The action or inaction by the Board under attack in this 

case is its decision not to strip Dr. Kauffman of his license 

when faced with complaints concerning his professional 

conduct. The Board's decision whether to initiate 

administrative proceedings against a doctor is analogous to a 

prosecutor's decision whether to initiate court proceedings 

against an alleged criminal. We concur with the reasoning in 

Butz that the Board's discretion might be distorted if it is 

not immune from suit for damages arising from such a 

decision. We hold, therefore, that in the exercise of its 

quasi-judicial authority, the Board is entitled to the 

absolute immunity afforded executive officials under the rule 

in the Butz decision. We also hold that the quasi-judicial 

immunity afforded the Board must encompass the State. The 

Board's discretion would be equally subject to distortion by 

considerations of possible litigation against the State 

arising from its actions. See Ronek, 740 P.2d at 1116-17; 

Dept. of Justice, 560 P.2d at 1330. 

The opinions in Ronek, Dept. Justice and Butz stand 

for the proposition that entities called upon to function 

judicially should be immunized in order to facilitate the 

proper execution of their duties. However, the basis for 

these decisions, as discussed above, is the common law. 

We affirm the decision of the District Court. 

We Concur: 

Chief Justice 
Justices 
Mr. Justice John C. Sheehy, concurring in part and dissenting 

in part: 

I concur with the result in this case. The complaint in 

this case should have been dismissed by the District Court, 

not for the reasons utilized by the District Court in 

assuming that quasi judicial functions of state boards were 

encompassed in statutory judicial immunity, but rather that 

the complaint fails to show that the unfortunate deaths and 

resulting damages to the plaintiffs were proximately caused 

by the State of Montana, through its Board of Medical 

Examiners. 

The inaction of the Board of Examiners in failing to 

lift the license of Dr. Kauffman because of complaints made 

about him cannot be equated as a proximate cause with the 

direct acts of Dr. Kauffman in attending to the pregnant 

mothers, which, as the complaint alleges, were the proximate 

cause of their injuries. The theory of plaintiff's counsel 

to establish liability on the part of the state has too many 

"ifsW--if the Board had initiated proceedings against the 

doctor to lift his license to practice medicine; if the 

subsequent hearing and proceedings against the doctor 

unqualifiedly showed his incompetence to practice; if the 

evidence generated under the complaints against him stood up 

to show such incompetence; if the proceedings against the 

doctor would withstand judicial review. In my view, 

proximate cause cannot be attenuated to that extent. 

Thus, the District Court properly granted a motion to 

dismiss the complaint, but not upon the grounds utilized by 

the District Court--that of judicial immunity, but rather 

because of lack of proximate cause. 
Nonetheless, I cannot agree with the majority of this 

Court that the state as an entity is free from liability here 

on some ground of official immunity applying to government 

agents. I eschew especially the notion that the discretion 

of the Board of Examiners would be "equally subject to 

distortion by consideration of possible litigation against 

the State arising from its actions." That reason for 

immunity has been expressly waived by this state in its 

constitution and in its statutes. 

The first factor to remember here is that the State of 

Montana in its governmental capacity is the defendant in this 

case, for acting through its governmental arm, the Board of 

Medical Examiners. The persons who are members of the Board. 

are not defendants. No question is presented in this case 

that relates to the personal liability of the Board members 

who allegedly failed to act to lift Dr. Kauffman's license. 

When there is no risk of personal liability for damages to 

the government officials involved, the reason for common law 

official liability evaporates. When the reason for a rule 

ceases, so should the rule itself. Section 1-3-201, MCA. 

It is from the viewpoint of the personal liability of 

governmental agents that Butz v. Economou (19781, 438 U.S. 

478, at 480, 98 S.Ct. 2894, at 2897, 57 L.Ed.2d 895, at 899, 

should be examined. The first sentence of that opinion 

begins : 

This case concerns the personal immunity of federal 

officials in the Executive Branch from claims for 

damages arising from their violations of citizens ' 

constitutional rights . . . 

The vicarious liability of the United States government 

for its agents was not involved in Butz. The federal 

government may not be sued to redress the wrongs of its 

agents unless the government has specifically waived its 
immunity from suit as for example, in the Federal Tort Claims 

Act, where it applies. 

Moreover, the majority draw more fulsomely on the 

opinion in Butz than the opinion itself warrants. In 

discussing the functions of agency officials analogous to 

those of a prosecutor in deciding whether to initiate 

administrative proceedings against an individual, the court 

saw little chance of personal liability arising out of 

inaction. The Butz opinion states: 

The discretion which executive officials exercise 

with respect to the initiation of administrative 

proceedings might be distorted if their immunity 

from damages arising from that decision was less 

than complete. (Citing authority.) While there is 

not likely to be anyone willing and legally able to 

seek damages from the officials if they do - not 

authorize the administrative proceeding (refering 

to authority), there is serious danger that the 

decision to authorize proceedings will provoke a 

retaliatory response . . . (Emphasis in original.) 

438 U.S. at 515, 98 S.Ct. at 2915, 57 L.Ed.2d at 921-922. 

The point is, however, that the Butz court was deciding 

the personal liability of the government agents involved. 

That is not true in this case where the state alone is the 

defendant. 

The purpose of common law official immunity is to allow 

government officials to be 

Free to exercise their duties unembarrassed by the 

fear of damage suits in respect to acts done in the 

course of those duties--suits which would consume 

time and energies which would otherwise be devoted 

to governmental service and the threat of which 

might appreciably inhibit the fearless, vigorous 

and effective administration of policies of 

government. 

Davis v. Knud-Hansen Memorial Hospital (3d Cir. 1980), 635 

F.2d 179, 186, 203 n. 20 quoting from Ferri v. Ackerman 

(1979), 444 U.S. 193, 100 S.Ct. 402, 409, 62 ~.Ed.2d 355, 
363. The threat of personal liability was enough to lead 

Judge Learned Hand to come down in favor of official immunity 

in balancing between eliminating the constant dread of 

retaliation for their discretionary functions and the rights 

of the injured from dishonest official acts. Judge Hand said 

that unless immunity was granted, it would "dampen the ardor 

of all but the most resolute, or the most irresponsible, in 

the unflinching discharge of their duties." Greqoire v. 

Biddle (9th Cir. 1949), 177 F.2d 579, 581. 

The State of Montana, through its 1972 Constitution, and 

by statutes enacted under its Constitution, has removed the 

reasons for common law immunity for state governmental 

agents. The public policy of Montana is that the state 

itself is subject to suit for the torts of its officials and 

employees. The statutes enacted by the legislature have 

immunized governmental agents from any personal liabilitys 

for damages, including court costs and attorney fees, arising 

out of the governmental torts. The State Constitution 

provides in Art. 11, § 18, as follows: 

State subject to suit. The state, counties, 

cities, towns and all local governmental entities 

shall -- have no immunity from suit for injury to a 

person or property, except as may be specifically 

provided by law by a 2/3 vote of each house of the 

legislature. (Emphasis added.) 

The statutes of this state declare our public policy 

that public officers and employees such as the individual 

members of the Board of Medical Examiners shall be immunized, 

defended and indemnified when civilly sued for their actions 

taken within the course and scope of their employment. 

Section 2-9-305 (11, MCA. The term "employee" means an 

officer or employee, an elected or appointed official and 

persons acting on behalf of a governmental entity in any 

official capacity. Section 2-9-101 (2) , MCA. When such 
government officials or employees are acting within the 

course and scope of their duties, they may require the state 

to defend a noncriminal action against them, may require 

indemnification for any money judgment or legal expenses, 

including attorney fees and costs, and any recovery against 

the governmental entity is a complete bar to any further 

action for recovery of damages by claimants against the 

officers or employees. Sections 2-9-305 (2) , - (3) , - (4) , and 

- (51, MCA. 

Thus, under our constitutional and statutory scheme, the 

public policy of this state to remove all possibility of 

personal damages against governmental officials for their 

torts in office serves to eliminate the need for any 

application of common law official immunity in the case at 

bar. Apparently the plaintiffs recognize this, because they 

sue only the State of Montana and not the individual members 

of the Board of Examiners in their personal capacities. 

Thus, the liability of the state here should be decided on 

principles other than cases applying only to personal 

liability. Here, the state, by constitution and by statute, 

is not immune from suit. The state is liable to persons who 

suffer injuries proximately caused by state governmental 

torts as a matter of public policy and as a constitutional 

right. 

It is, therefore, quite illogical for the majority to 

hold that the state is exempt from suit in this case because 

of the possibility that the Board's discretion would be 

subject to distortion by considerations of possible 

litigation against the state arising from the actions of the 

Board of Medical Examiners. The state, without question, has 

accepted that risk in assuming liability, and in subjecting 

itself to suit. 
State immunity from suit, arising from the alleged torts 

of its agents should not be an issue in this case at all. 

That issue is removed by the public policy of this state. 

The only question we should decide here is whether the 

complaint, on well-settled tort rules can survive a motion to 

dismiss. As I said earlier, imate cause is missing. 

Justice , 

Mr. Justice William E. Hunt, Sr., joins in the foregoing 

concurrence and dissent of Mr. Justice John C. Sheehy. 

/ 

Justice