No. 93-451 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DAVID K. CLARK, Missoula County 

Justice of the Peace, 

Petitioner and Respondent, 

-vsANN MARY DUSSAULT, BARBARA EVANS and 

JANET STEVENS, Missoula County Commissioners. JUL 1 2 1994 

~espondents and ~~~&lants, 

and CLEW OF 3UBEXMiE COURL 

STATE OF :ulDi\iTANA 

ANNE P. GUEST, 

Intervenor and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Intervenor and Appellant: 

Larry Jones, Attorney at Law, Missoula, Montana 

For Petitioner and Respondent: 

Stacey Weldele-Wade; Milodragovich, Dale & Dye, 

Missoula, Montana 

For Respondents and Appellants: 

Nancy K. Moe; Ellingson & Moe, Missoula, Montana 

Michael W. Sehestedt, Deputy County Attorney, 

Missoula, Montana 

For Amici Curiae: 

Jim Nuqent, City Attorney, City of Missoula, 

Missoula, Montana (Missoula and League of Cities 

and Towns) 

Submitted on Briefs: May 23, 1994 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court. 

Anne Guest (Guest) and the Missoula County Board of 

commissioners (County Commissioners) appeal from the grant of 

summary judgment to David Clark (Clark) by the Fourth Judicial 

District Court, Missoula County. The summary adjudication was 

based on the court's conclusion that Clark was not bound by the 

grievance procedures applicable to county employees because of his 

inherent authority as Justice of the Peace and the doctrine of 

judicial immunity. Clark cross-appeals the court's denial of his 

motion to amend the judgment to add an award of attorneys' fees. 

We reverse the court's grant of summary judgment and affirm its 

denial of the motion to amend the judgment. 

Guest was employed by Missoula County as office manager for 

the Missoula County Justice Court (Justice Court). The Justice 

Court is comprised of Courts 1 and 2, presided over by Clark and 

Michael Morris (Morris), respectively. In May of 1991, Clark 

presented a "supervisory plan1' to Guest, setting forth new 

guidelines and priorities to be followed by her and the clerical 

staff in Court 1. Morris declined to implement the plan in court 

2. 

Several weeks later, Clark felt that Guest was not attempting 

to institute the desired changes and verbally reprimanded her. 

Guest submitted a six-page memorandum responding to the verbal 

reprimand and, while Clark was on vacation during the last part of 

June, detailed her role as manager under the supervisory plan to 
the clerical staff. 

Early in July, County Commissioners Ann Mary Dussault 

(Dussault), Barbara Evans (Evans) and Janet Stevens (Stevens) 

requested Clark to attend a meeting to address concerns raised by 

his clerical staff. Before that meeting could be held, Clark 

scheduled a meeting with his staff to resolve their differences. 

Stevens and Dussault advised Clark that they would attend any such 

meeting. Two meetings were held; one was attended by Dussault, 

Stevens, Clark and his clerical staff, including Guest, and the 

other by all three County Commissioners, Clark, members of the 

Personnel Department, and Deputy County Attorney John Devore. 

Subsequent to the meetings, Clark placed a written reprimand 

in Guest's personnel file. In the reprimand, Clark stated that 

Guest was insubordinate because she failed to implement the 

supervisory plan, made unconscionable misrepresentations in her 

six-page memorandum, and disrupted the clerical staff. He also 

indicated that further disciplinary action was being contemplated. 

Clark remained unhappy with Guest's implementation of his 

supervisory plan. On August 12, 1991, he suspended Guest without 

pay for seven days. Morris refused to acknowledge the suspension 

and directed Guest to continue working. The Missoula County 

Personnel Department also directed Guest to ignore the suspension 

absent an agreement by both justices of the peace. 

Guest filed a grievance to contest the suspension on August 

16, 1991, pursuant to the Missoula County Personnel Policies Manual 
(county Manual). She sought to have the notice of suspension and 

all related documents removed from her file. A grievance hearing 

before the County Commissioners was scheduled for December 19, 

1991. The County Commissioners refused Clark's request to recuse 

themselves from hearing the grievance. 

On December 17, Clark filed separate petitions for a writ of 

prohibition and an alternative writ of prohibition requesting the 

District Court to order the County Commissioners to stop 

interfering with his operation of Court 1. The District Court 

immediately issued the alternative writ, cancelling the grievance 

hearing scheduled two days later. The court also ordered the 

County Commissioners to appear at a January lo, 1992, hearing and 

show cause why a permanent writ should not be issued. The show 

cause hearing subsequently was continued and, apparently, never 

held. 

In January of 1992, Guest filed a motion to intervene in the 

District Court proceeding pursuant to Rule 24(a), M.R.Civ.P. She 

argued that she was entitled to a hearing regarding Clark's 

disciplinary action under notions of due process and that her 

participation in the litigation was necessary to protect that 

interest in light of the court's cancellation of the grievance 

hearing. Clark opposed the motion. 

While Guest's motion was pending, Clark filed an amended 

petition. In addition to the permanent writ of prohibition 

previously requested, Clark sought declaratory relief. He 
requested the court to determine that he had the inherent authority 

to suspend Guest under 55 3-1-111 and 3-1-113, MCA, without 

interference by the County Commissioners and that judicial 

immunity, codified at 5 2-9-112(2), MCA, precluded Guest's 

grievance. He also requested reimbursement of his attorneys' fees 

and court costs. 

On February 12, 1992, the District Court granted Guest's 

motion to intervene. Shortlythereafter, the court issued an order 

dissolving the alternative writ of prohibition and establishing 

interim operating procedures for the Justice Court. Pursuant to 

the order, Guest's employment as office manager continued, but only 

in relation to the operation of Morris' court. The order 

prohibited all contact between Clark and Guest. 

Following the filing of stipulated facts in October of 1992, 

Clark moved for summary judgment. Respondents and Guest opposed 

the motion and, in November, filed separate cross-motions for 

summary judgment. On May 10, 1993, the District Court granted 

Clark's motion for summary judgment, concluding that he did not 

have to comply with the grievance procedures because they 

interfered with his inherent authority to ensure the proper 

functioning of the Justice Court. The court also concluded that 

judicial immunity precluded Guest from maintaining her grievance 

against Clark. 

The judgment entered by the court on its grant of summary 

judgment did not award attorneys' fees and costs to Clark. He 
subsequently moved the court to amend the judgment pursuant to Rule 

59(g), M.R.Civ.P., to include such an award. The motion was 

denied. 

Guest and the Commissioners appeal the District Court's grant 

of summary judgment to Clark. Clark cross-appeals, asserting error 

in the court's denial of his motion to amend the judgment. The 

Montana League of Cities and Towns and the City of Missoula appear 

as amici curiae. 

As a threshold matter, we address Clark's contention that this 

case is moot because Guest left county employment in June of 1993. 

A case may become moot for the purpose of appeal where it has lost 

any practical importance to the parties because of a change in 

circumstances prior to the appellate decision. Matter of T.J.F. 

(1987), 229 Mont. 473, 475, 747 P.2d 1356, 1357. A party seeking 

to establish that an issue raised on appeal is moot has a heavy 

burden. Butte-Silver Bow Local Gov't v. Olsen (1987), 228 Mont. 

77, 82, 743 P.2d 564, 567. 

Pursuant to Clark's request for declaratory relief, the 

District Court determined he had the inherent authority to 

discipline and discharge court personnel without consulting with 

the County Commissioners. It also determined that judicial 

immunity barred the filing of a grievance against Clark, the final 

step of which is a review by the County Commissioners. Guest's 

departure from county employment does not negate the legal effect 

of the District Court's judgment on Clark's relationship with the 
Commissioners and, therefore, does not render the case moot as to 

them. 

Nor is this appeal moot as to Guest. She filed her grievance 

when she was a county employee pursuant to the grievance provisions 

of the County Manual. Clark cites no authority for his position 

that Guest's right to maintain the grievance terminated when she 

left county employment. Thus, the District Court's judgment 

barring a grievance against Clark pursuant to judicial immunity 

remains of practical importance to Guest. We conclude that this 

case is not moot. 

Did the District Court err by granting summary judgment to 

Clark? 

Our standard for reviewing a grant of summary judgment is the 

same as that used by the District Court. Emery v. Federated Foods 

(Mont. l993), 863 P.2d 426, 431, 50 St.Rep. 1454, 1456. We 

determine whether there is an absence of genuine issues of material 

fact and whether the moving party is entitled to judgment as a 

matter of law. Minnie v. City of Roundup (1993), 257 Mont. 429, 

431, 849 P.2d 212, 214. Here, summary judgment was based on 

stipulated facts filed by the parties. Thus, we focus on the 

court's conclusions supporting the summary adjudication. Our 

review of legal conclusions is plenary. Steer, Inc. v. Deplt of 

Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. 

Inherent Power 

According to the District Court, a justice of the peace has 
the inherent power to take steps necessary to ensure the proper 

functioning of the justice court, including the authority to make 

personnel decisions. Although the court recognized established 

personnel procedures are to be followed Ifas much as possible," it 

stated that a justice of the peace could exercise inherent power 

when the established procedures failed, citing Hillis v. Sullivan 

(1913), 48 Mont. 320, 137 P. 392, and its progeny. 

Applying those principles to the case before it, the District 

Court determined that Clark had adequately complied with the 

personnel procedures in the County Manual by following the 

progressive disciplinary steps. It concluded, however, that Clark 

did not have to comply with the grievance procedures because they 

were inconsistent with his inherent power. 

Appellants contend the established personnel procedures that 

Clark was required to follow before exercising his inherent 

authority under Hillis included the grievance procedures. We 

agree. 

Justice courts undoubtedly possess the inherent power to do 

those acts necessary to ensure their proper functioning. The 

concept of inherent power is codified at 5 3-1-113, MCA, which 

provides that when jurisdiction is conferred on a court or judicial 

officer, all the means necessary for the exercise of that 

jurisdiction are also given. 

A court's exercise of inherent power, however, is not without 

limitations. In Hillis, we determined that a court could exercise 
its inherent power only when the established methods for addressing 

the court's needs failed or when an emergency arose that was not 

remedied by the established methods. illi is, 137 P. at 395. On 

that basis, we concluded that a district court could not exercise 

its inherent powers to obtain "attendants" necessary for the 

court's functioning without first approaching the county 

commissioners or the sheriff, who were statutorily required to 

provide them. We subsequently have reiterated the limitations on 

a court's exercise of its inherent power set forth in Hillis and 

consistently have required that inherent power be exercised only 

when established methods fail or an emergency arises. See Browman 

v. Wood (1975), 168 Mont. 341, 543 P.2d 184; Board of Commissioners 

v. Eleventh Jud. Dist. Court (1979), 182 Mont. 463, 597 P.2d 728; 

Butte-Silver Bow Local Gov't v. Olsen (1987), 228 Mont. 77, 743 

P.2d 564. 

The establishedmethods for disciplinary action against Guest, 

a county employee, are contained in the County Manual. Progressive 

disciplinary actions of oral reprimand, written reprimand or 

warning notice, suspension, demotion and dismissal are required. 

The disciplinary procedures also give the employee the right to 

grieve and appeal all disciplinary actions imposed. Thus, under 

Hillis, Clark was required to comply with these established 

methods--including the grievance process--before he could exercise 

the inherent powers of the court to suspend Guest. 

Clark contends that a grievance hearing before the County 
commissioners on Guest's suspension would violate the separation of 

powers doctrine. According to Clark, the hearing would interfere 

with the independence of the court by requiring him to be an 

adverse witness against court personnel, allowing his decision on 

personnel matters to be overruled by another branch of government, 

and possibly requiring him to accept an employee he believes is 

unsatisfactory. 

We disagree that the separation of powers doctrine precludes 

compliance with the grievance procedure. In Hillis, we determined 

that the county commissionerst hiring of a clerk to assist the 

district court did not violate the separation of powers. We 

stated: 

The separation of the government into three great 

departments does not mean that there shall be Itno common 

link of connection or dependence, the one upon the other 

in the slightest degree" [citation omitted]: it means 

that the powers properly belonging to one department 

shall not be exercised by either of the others [citation 

omitted]. 

Hillis, 137 P. at 395. In addition, the County Commissioners are 

statutorily required to provide Clark with the clerical assistance 

necessary to perform his judicial duties. Sections 3-10-103 and 7- 

4-2401, MCA. Thus, the County Commissioners' hiring of Guest to 

supervise Clark's clerical staff is consistent with the separation 

of powers. We do not see how a grievance hearing before the County 

Commissioners regarding Clark's suspension of Guest could violate 

the separation of powers doctrine when the County Commissioners' 

independent hiring of Guest as office manager of the Justice Court 
is consistent with that doctrine. Furthermore, we are not 

persuaded that the County Commissioners* hearing of a grievance 

constitutes an exercise of authority belonging to the judicial 

branch. 

We hold that the District Court erred in concluding that 

Clark's inherent power as a justice of the peace precluded a 

grievance hearing before the County Commissioners. 

Judicial Immunitv 

The District Court concluded that Clark was entitled to 

judicial immunity for his suspension of Guest under Mead v. 

McKittrick (1986), 223 Mont. 428, 727 P.2d 517. Mead is 

distinguishable, however, from the present case. 

In Mead, a newly-elected district court judge terminated the 

employment of his predecessor's personal secretary in order to hire 

his own. We began our analysis by setting forth Montana's 

codification of the common law doctrine of judicial immunity, 

whereby a judge is nrimmune from suit for damages arising from his 

lawful discharge of an official duty associated with judicial 

actions of the court.In Section 2-9-112, MCA. We observed that 

district court judges have the exclusive authority to choose their 

own secretaries because of the Indistinct and unique status" a 

personal secretary occupies among court employees. Mead, 727 P.2d 

at 519. We concluded that the appointment and removal of a 

personal secretary--a Itkey court employeefn--was a"judicial action" 
to which judicial immunity applied pursuant to the statute. Mead, 

727 P.2d at 519. 

Here, Guest is not a "key employeeH under our Mead analysis. 

Guest was not a member of Clark's personal staff over whom Clark 

had exclusive appointment and removal authority, She was hired by 

 iss sod la County. Furthermore, Guest was hired as an off ice manager 

for the combined Justice Court operations of ~ustices of the Peace 

Clark and orris; as such, she was not the type of personal and 

glkeygg employee to both justices of the peace as the personal 

secretary was to the district court judge in Mead. Nor were her 

duties of the confidential and close nature of those generally 

associated with a personal secretary. 

Because Guest was not a "key employee, I* her suspension was not 

a judicial act entitled to immunity under Mead. We conclude that 

the District Court erred in applying judicial immunity to bar the 

maintenance of a grievance hearing regarding the suspension. 

As a result of our conclusions on inherent authority and 

judicial immunity, no basis remains for the grant of Clark's motion 

for summary judgment. Therefore, we hold that the District Court 

erred in granting summary judgment in Clark's favor. 

Did the District Court err by denying Clarkfs motion to amend 

the judgment to award attorneys* fees? 

The District Court determined that Clark's Rule 59(g), 

M.R. Civ-P., motion for attorneys1 fees was based on the County 

Commissionersg alleged breach of a contract to pay such fees. The 
court declined to rule on the merits of the breach of contract 

claim, however, and determined that granting attorneys' fees on the 

basis of the breach of contract claim was premature. 

The amendment of a judgment is within the discretion of a 

district court. See Marriage of Grounds/Coward (1993), 256 Mont. 

397, 402-03, 846 P.2d 1034, 1037-38; Marriage of Vakoff (1992), 252 

Mont. 56, 59-60, 826 P.2d 552, 554. Thus, we review the District 

Court's refusal to amend the judgment for an abuse of discretion. 

Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 475, 803 

P.2d 601, 603-04. 

Clark first contends that the District Court was required to 

award attorneys' fees based on his breach of contract claim. 

According to Clark, the County Commissioners entered into an 

agreement to pay his attorneys' fees in November of 1991 and 

refused to pay the fees incurred after March 24, 1992. 

The record indicates, however, that Clark did not raise the 

alleged breach of contract in his amended petition or motion for 

summary judgment or, indeed, at any time prior to the court's entry 

of summary judgment in his favor. While Clark made a passing 

mention of the alleged agreement to pay attorneys' fees in his 22- 

page Statement of Facts in Support of Motion for Summary Judgment, 

the motion itself contained no claim for attorneys* fees based on 

a breach of contract theory. That claim was first raised in 

Clark's motion to amend the judgment; even then, it was supported 

only by a postjudgment affidavit by Stacey Weldele-Wade (Weldele- 
Wade), Clark's attorney, attached to his rewlv brief in support of 

his motion to amend the judgment. We agree with the District Court 

that it was premature to award attorneys' fees based on a breach of 

contract claim that had not been raised and argued by the parties 

in any meaningful or appropriate fashion. 

Furthermore, it is clear that the summary judgment could not 

be amended to award attorneys' fees because a factual dispute 

exists regarding the scope of the parties1 agreement. Clark 

contends that the attorneys' fees agreement was unconditional. The 

County Commissioners argue that the agreement pertained only to 

attorneys' fees incurred by Clark in regard to the grievance 

hearing. On that basis, they assert that the agreement allowed 

them to terminate the payments when it became clear that a 

grievance hearing was unlikely. In her affidavit, Weldele-Wade 

supported Clark's position and, to the extent that she stated the 

County Commissioners approved payment of the attorneys' fees "up to 

and through the date of the grievance hearing," the County 

Commissioners' position as well. 

Clark also argues that the District Court erred by failing to 

award attorneys' fees under 55 2-9-305(4), 27-26-403, 7-4-2711(2) 

and 25-10-701, MCA. These claims fail for the same reason as his 

breach of contract claim. The statutes were not asserted as 

grounds for an award of attorneys1 fees prior to the court's grant 

of summary judgment and, indeed, Clark first raised his § 25-10- 

701, MCA, claim in his reply brief in support of his motion to 
amend the judgment, giving the County Commissioners no opportunity 

to respond. Furthermore, Clark premised his 5 7-4-2711 (2) , MCA, 

claim on the fact that he was unrepresented when the County 

Commissioners contracted counsel for Guest. This fact is not of 

record and, indeed, is disputed by the County Commissioners. For 

these reasons, an award of attorneys' fees based on any of the 

statutes is premature unless and until an appropriate record is 

created and the parties have a full and fair opportunity to address 

the issues. 

Finally, Clark argues that he was entitled to attorneys' fees 

because he Meffectivelyl' obtained a writ of prohibition when the 

court declared that the grievance procedures were inconsistent with 

his inherent power and successfully prosecuted his judicial 

immunity claim. We decline to address these arguments based on our 

disposition of the first issue. 

In Montana, attorneys' fees generally will not be awarded 

absent an authorizing contractual provision or statute. Joseph 

Russell Realty Co. v. Kenneally (1980), 185 Mont. 496, 505, 605 

P.2d 1107, 1112. Here, an adequate record has not been made 

regarding Clark's breach of contract claim and the statutory claims 

which might provide a basis for an award of attorneys' fees. Thus, 

the resolution of such claims is premature. We hold that the 

District Court did not abuse its discretion by denying Clark's 

motion to amend the judgment to add an award of attorneys' fees. 

We emphasize that nothing in this opinion should be construed as a 
comment on the merits of, or to foreclose Clark from pursuing, the 

breach of contract or statutory claims for attorneys' fees. 

Reversed in part, af f imed in part, and remanded for the entry 

of judgment consistent with this opinion. n 

We concur: 

Justices 
~ustice James C. Nelson specially concurs. 

While agreeing with our discussion of the other issues in this 

case, I specially concur in the Court's opinion with respect to the 

issue of judicial immunity. Our opinion on that issue is limited 

to distinguishing Mead v. McKittrick (1986), 223 Mont. 428, 727 

P.2d 517, inasmuch as the District Court grounded its decision in 

that case, (although it appears that the District Judge favored 

using the "functional approach" discussed below). Nevertheless, it 

is my opinion that a dispositive decision handed down by the United 

State's Supreme Court since Mead, mandates our decision here. 

One of the key cases that we relied on in deciding Mead was 

Forrester v. White (7th Cir. 1986), 792 F.2d 647. We cited that 

case for the proposition that, "[Ilf an employee's duties are 

intimately related to the functioning of the [judicial] process, 

then personnel decisions regarding that employee are also part of 

the process." Mead, 727 P.2d at 519. Following our decision in 

I Mead the Seventh Circuit's decision in Forrester was reversed on 

appeal to the United States Supreme Court. See, Forrester v White 

(1988), 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed. 2d 555. 

As in the instant case, Forrester involved a personnel disputc 

between an employee working for the court and a state court judge. 

In Illinois, the presiding circuit judge had authority to hire 

adult and juvenile probation officers, who were removable at his 

discretion. The respondent state court judge hired Forrester as an 

adult and juvenile probation officer and, some two years later, 

promoted her to a position of increased supervisory 

17 
responsibilities. A year later the judge demoted Forrester to a 

nonsupewisory position and, a few months after that, he fired her. 

Forrester sued in federal district court alleging federal civil 

rights violations. The jury found that the judge had engaged in 

unlawful sex discrimination and awarded Forrester compensatory 

damages. Subsequent to the verdict, the judge's motion for summary 

judgment was granted on the ground that he was entitled to judicial. 

immunity from a civil damages suit. Forrester, 484 U.S. at 222. 

On appeal, a divided panel of the Seventh Circuit affirmed. 

The Circuit Court held that the judge was entitled to absolute 

judicial immunity, reasoning that Forrester performed functions 

that were "inextricably tied to discretionary decisions that have 

consistently been considered judicial acts,'# and that, absent the 

judge being able to freely replace the employee, the quality of his 

own decisions might decline. Forrester, 792 F.2d at 657. 

The U.S. Supreme Court rejected the Circuit Court's analysis. 

While acknowledging that immunity doctrines function to f~:c~ 

government officials from the threat of personal liability for 

actions taken pursuant to their official duties and to encourage 

such officials to make impartial, objective and irnaginativz 

decisions without such decisions being skewed by an excess of 

caution and by fear of suit, the Court also pointed out that, 

running though the immunity cases is, "... a ufunctionalH approach 

to immunity questions ...". Forrester, 484 U.S. at 224. 

Under that approach, we examine the nature of the 

functions with which a particular official or class of 

officials has been lawfully entrusted, and we seek to 

evaluate the effect that exposure to particular forms of 
liability would likely have on the appropriate exercise 

of those functions. 

Forrester, 484 U.S. at 224, 

While observing that judges, as a class, have long enjoyed a 

comparatively sweeping, if not perfectly well-defined, form of 

immunity, Forrester, 484 U.S. at 225, the Court, nevertheless, 

pointed out that, as in the instant case, ll[d]ifficulties have 

arisen primarily in attempting to draw the line between truly 

judicial acts, for which immunity is appropriate ...," (i.e. I*... 

paradigmatic judicial acts involved in resolving disputes between 

parties who have invoked the jurisdiction of a court1I) and Ir.. . 

acts that simply happen to have been done by judges. "Here, as in 

other contexts, immunity is justified and defined by the functions 

it protects and serves, not by the person to whom it attaches. 

Forrester, 484 U.S. at 227. (Emphasis added to last phrase). 

In Forrester the Court drew the immunity line between judicial 

acts and "... the administrative, legislative, or executive 

functions that judges may on occasion be assigned by law to 

perform, It Forrester, 484 U.S. at 227, observing that 

administrative decisions, while essential to the very functioning 

of the courts, are not regarded as judicial acts. Forrester, 484 

U.S. at 228. 

Focusing on the facts in Forrester, the Court then concluded 

that the state-court judge was acting in an administrative capacity 

when he demoted and discharged Forrester. "Those acts -- like many 

others involved in supervising court employees and overseeing the 

efficient operation of a court -- may have been quite important in 

19 
providing the necessary conditions of a sound adjudicative system," 

[but] 'I... were not themselves judicial or adjudicative." 

Forrester, 484 U.S. at 229. 

Without ruling on the question of whether qualified immunity 

might be available to judges who make discretionary employment 

decisions, and noting that absolute immunity is vtvstrong medicine, 

justified only when the danger of [officialst being] deflect[ed 

from the effective performance of their duties] is very great,'" 

the Court held that the state-court judge was not entitled 'cc 

absolute immunity for his decisions to demote and discharge 

Forrester. Forrester, 484 U.S. at 230. 

In like fashion, the U.S. Supreme Court has on three occasion: 

applied a "functional approach" in deciding absolute immunity 

questions involving prosecutors. - See Buckley v. Fitzsimmons 

(1993), 61 USLW 4713, 113 S.Ct. 2606, 125 L.Ed.2d 209; Burns v. 

Reed (lggl), 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547; and 

Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 

128. 

Accordingly, the functional approach to absolute immunity 

questions is firmly rooted in the cases decided by the U. S. Supreme 

Court and, in my view, is binding precedent on this Court. Under 

the functional approach, it is the nature of the function 

performed, not the identity of the actor who performs it, that 

drives immunity analysis. 

In the instant case, Judge Clark was not involved in 

"paradigmatic judicial acts involved in resolving disputes between 
parties who had invoked the jurisdiction of a court." We was, in 

fact, performing the very same functions -- supervising court 

employees and overseeing the efficient operation of a court -- that 

the Court in Forrester found to be neither judicial nor 

adjudicative. Judge Clark was acting in an administrative capacity 

when he disciplined Guest, and, under Forrester, he is not entitled 

to absolute judicial immunity from suit. 

On appeal Judge Clark argues that Forrester is inapplicable 

because 5 2-9-112(2), MCA, grants immunity from suit to members of 

the judiciary where the performance of the official duty at issue 

is wassociatedM with "judicial actions of the court.'* Section 2- 

9-112(2), MCA. Judge Clark's argument, however, is erroneously 

premised on his conclusion that disciplining an employee is a 

14judicial action.I1 Clearly, under Forrester, it is not. Such an 

action is administrative, and acts Irassociatedt1 with the 

performance of an administrative action of the court are no more 

clothed with statutory immunity under Montana law than are such 

acts clothed with absolute immunity under the functional approach. 

adopted in the federal case law. Accordingly, S 2-9-112(2), MCA, 

supports, rather than conflicts with, the application of the 

functional approach. 

As with the Court's decision in Forrester, I express no 

opinion on the applicability of the doctrine of qualified immunity 

to Judge Clark's actions in this case. It is clear, however, that 

in disciplining Guest, he was performing an administrative, rather 

than a judicial or adjudicative function, and that under both the 
functional approach and under § 2-9-112 (2) , MCA, Judge Clark is net. 

entitled to absolute judicial immunity from suit. 

Accordingly, I specially concur with the Court's decision on 

the immunity issue and concur with its discussion on all other 

issues. 

Justice Terry N. Trieweiler concurs in the foregoing special - 

concurrence. 
July 12, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Robert Deschamps, 111, County Attorney 

Michael W. Sehestedt, Dep. County Attorney 

Missoula County Courthouse 

Missoula, MT 59802 

Lany Jones 

Attorney at Law 

P.O. Box 8108 

Missoula. MT 59807 

Stacey Weldele-Wade 

MILODRAGOVICH, DALE & DYE 

P.O. Box 4947 

Missoula, MT 59806-4947 

Nancy K. Moe 

Attorney at Law 

P.O. Box 9198 

Missoula, MT 59807 

Jim Nugent 

City Attorney, City of Missoula 

435 Ryman 

Missoula, MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA