No. 89-168 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

CECIL P. MILLER, 

Plaintiff and Appellant, 

-VSFALLON COUNTY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Fallon, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald W. Molloy argued; Anderson, Edwards & Molloy, 

Billings, Montana 

For Respondent: 

Calvin J. Stacey argued; Keefer, Roybal, Hansen, Stacey 

& Walen, Billings, Montana 

Denzil R. Young argued, Fallon County Attorney, Baker, 

Montana 

For Amicus Curiae: 

William L. Crowley; Boone, Karlberg & Haddon, (David 

'-R. Brown), Missoula, Montana 

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Submitted: September 25, 1989 

Degided: December 13, 1989 
Justice Fred J. Weber delivered the Opinion of the Court. 

This appeal arises from an order by the District Court, 

Sixteenth Judicial District, Fallon County, Montana. The 

District Court granted summary judgment in favor of defendant, concluding that plaintiff's suit against Fallon County 

was barred because the county was statutorily immune from 

suit. Plaintiff appeals. We affirm. 

The issues on appeal are: 

1. Did the District Court err in grantinq summary 

judgment in favor of defendant Fallon County by determining 

that, pursuant to 5 2-9-111, MCA, the County is immune from 

suit? 

2. Is § 2-9-111, MCA, constitutional? 

Cecil Miller was injured when his truck, an 18-wheeler, 

failed to negotiate a curve on a county road on November 3, 

1982. Mr. Miller was an independent trucker. He and his 

wife were carrying a load of lumber from Townsend, Montana, 

to Minnesota and elected to use secondary roads since they 

did not possess the required permits to travel on the interstate highway. South of Baker, Montana, Mr. Miller began 

traveling on a two-lane graveled county road. He approached 

a curve known as "Russley's Corner," which was unsigned at 

that time. Mr. Miller lost control of the truck on this 

curve and went off the road and down an embankment. 

Mr. Miller's wife, Linda, was also injured in this 

accident. She previously filed suit against her husband and 

his alleged employer. That case was appealed to this Court 

and decided in Miller v. Fallon County (1986), 222 Mont. 214, 

721 P.2d 342. 

Cecil Miller subsequently filed suit on his own behalf 

against Fallon County, alleging negligence in construction, 

maintenance, and signing of the county road. Defendant moved 
nity. We begin therefore by explaining the county's system 

for road construction and maintenance. 

Fallon County is divided into three road districts. 

The Fallon County Board of Commissioners (Board) is in charge 

of the county roads, with one commissioner assigned to each 

district. Mr. Delane Beach, a member of the Board, was 

assigned to the road district in which Mr. Miller's accident 

occurred. At the time of the accident, the road foreman for 

this district was Mr. Harold Wiseman. 

In applying § 2-9-111, MCA, to the present case, Fallon 

County is a "governmental entity" and the Board of Commissioners is its "legislative body." Pursuant to subsection 

(2) the County is immune from suit for an act or omission of 

its Board of Commissioners or a "member, officer. or agent 

thereof." Therefore, on its face, the language of the statute grants immunity to Fallon County for any act or omission 

of its Board of Commissioners. Additionally, it grants 

immunity to the County for acts or omissions of Mr. Beach, a 

member of the Board, or for acts or omissions of agents of 

the Board. 

In the present case, it is not disputed that the road 

foreman, Mr. Wiseman, was an agent of the Board. 

"Agency" is defined as follows: 

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 

be subject to his control, and consent by the other 

so to act. 

Restatement of the Law of Agency 2d 5 1 (1958). Additionally, the agency status of the road foreman is contemplated by 

statute. Section 7-14-2121, MCA, authorizes the Board to 

divide the county into road districts and place a road supervisor in charge of each district. Section 7-14-2122, MCA, 
delineates the road supervisor's responsibilities, which are 

to be performed " [ulnder the direction and control of the 

board.'' We conclude that Mr. Wiseman was clearly an agent of 

the Board. We point out that this agency status could be 

extended to the road crews pursuant to our recent holding in 

State of Montana ex rel. Eccleston v. Montana Third Judicial 

District Court (Mont. 1989), - P.2d - , 46 St.Rep. 1929, 

(custodians of school district are agents of school board for 

purposes of immunity under S 2-9-111, MCA) . The plain language of the statute therefore extends immunity to Fallon 

County for acts or omissions of the Board, Mr. Reach, and Mr. 

Wiseman. 

In its grant of summary judgment the District Court 

relied on this Court's previous holdings in W.D. Const. Inc. 

v. Bd. of County Com'rs (1985), 218 Mont. 348, 707 P.2d 1111 

(county and commissioners were immune from suit arising out 

of commissionersf approval of a plat for subdivision); Barnes 

v. Koepke (1987), 226 Mont. 470, 736 P.2d 132 (county and 

commissioners were immune from suit which arose out of commissioners' decision not to renew a hospital lease) ; Bieber 

v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St-Rep. 

1218 (county and commissioners were immune from suit for 

commissioners' termination of county employee). Recently, 

the decision of Peterson v. Great Falls School District 1 and 

A (Mont. 1989), 773 P.2d 316, 46 St.Rep. 880, has been issued, which follows the holdings of the previous cases. In 

Peterson this Court determined that the school district was 

immune from suit for the discharge of a custodian. 

Plaintiff attempts to distinguish these cases by stating that all prior cases involved a decision by the Board, 

which was found to be a legislative act. He urges that the 

present case does not involve a decision by the Board. 

Plaintiff contends that the only involvement the Board of 
for summary judgment asserting immunity as an affirmative 

defense. That motion was granted. 

Did the District Co,urt err in granting summary judgment 

in favor of defendant Fallon County by determining that, 

pursuant to § 2-9-111, MCA, the County is immune from suit? 

Plaintiff's complaint alleged that Fallon County was 

negliqent in designing, constructing, maintaining and signing 

the corner where the accident occurred. Defendant Fallon 

County moved for summary judgment, claiming immunity. The 

District Court granted summary judgment in favor of defendant 

pursuant to 5 2-9-111, MCA, which provides: 

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 vested with legislative power by Article V of The Constitution of the State of Montana 

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, officex, 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. 

The issue before this Court is whether the District 

Court was correct in determining that the acts or omissions 

in the present case fit within this statutory grant of immu- 
Commissioners had in the construction, maintenance, and 

signing of the road where the accident occurred, was the 

initial decision to build the road. He urges that the 

present case only involves acts or omissions of employees. 

Thus, he distinguishes the present case on a factual basis. 

As a legal argument, plaintiff also urges that the language 

of the statute only grants immunity for legislative acts, not 

administrative acts. He contends that the present case only 

involves administrative acts. 

We conclude that plaintiff's contentions fail both 

factually and legally. Altho.ugh plaintiff contends that as a 

matter of fact, the only involvement by the Board of Commissioners was the decision to build the road, deposition testimony belies this contention. The deposition of the County 

Commissioner in charge of this road, Mr. Delane Beach, and 

the deposition of Mr. Harold Wiseman, demonstrate rather 

extensive and continuous involvement by the Board of Commissioners in road construction and maintenance. 

Because factually this involvement unequivocally establishes the county's right to claim immunity in this case, we 

set out this involvement in some detail. In substance this 

testimony established that all three commissioners determined 

priorities on new construction, on any major project, and on 

budgeting. The commissioners as a group made decisions 

regarding implementation of state recommendations regarding 

roads, bridges, etc. 

In regard to new construction, Mr. Beach stated that he 

gave general direction to the road crews, such as directing 

that a road be constructed along section lines. While many 

details were left up to the judgment of the road foreman and 

road crews, Mr. Beach also participated in specific decisions 

regarding the width and slope of certain roads. In regard to 

maintenance, Mr. Beach testified that he drove all the roads 
in his district twice a year, identifying roads, bridges, and 

culverts which needed repair. This information was then 

given to the road foreman, along with any complaints Mr. 

Beach had received. He stated that he would work closely 

with the road foreman and the crew in deciding where repairs 

were needed, and that he would personally follow up to be 

sure the actual repairs were made. Mr. Beach stated that the 

road foreman was to use his judgment as to which corners 

required signs, and once the decision to sign was made, the 

sign was to be in accordance with the Traffic Control Manual. 

Mr. Beach also stated that he was the individual who 

gave the order for the reconstruction of Russley's Corner in 

the mid-1970's. He stated that it was he who determined that 

the corner needed a "gentler" curve. Additionally, Mr. 

Wiseman's testimony indicated that Mr. Beach was personally 

involved in decisions regarding the construction and maintenance of the roads. We conclude that any acts or omissions 

complained of in the present case were acts or omissions of 

the Board, its members, and its agents. 

On a legal basis, plaintiff contends that only legislative acts are immune, not administrative acts. He urges that 

the acts complained of in the present case are administrative 

rather than legislative or discretionary. Plaintiff suggests 

the effect of granting immunity in this case is to create 

blanket immunity to the county. He urges this is not the 

intent of S 2-9-111, MCA. 

In urging this distinction between legislative and 

administrative acts, plaintiff refers the Court to the language of the Montana Constitution, Article 11, Section 18, 

and § 2-9-102, MCA. 

Article 11, Section 18, states: 
State subject to suit. 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. 

Section 2-9-102, MCA, states: 

Governmental entities liable for torts except 

as specifically provided by legislature. Every 

governmental entity is subject to liability for its 

torts and those of its employees acting within the 

scope of their employment or duties whether arising 

out of a governmental or proprietary function 

except as specifically provided by the legislature 

under Article 11, section 18, of The Constitution 

of the State of Montana. 

Plaintiff urges that any statute granting immunity is an 

exception to the general rule of liability and must be narrowly construed, citing R.M. v. State (1982), 200 Mont. 58, 

649 P.2d 425. 

The present Montana Constitution, enacted in 1372, 

abolished sovereign immunity through Article 11, Section 18, 

yet empowered the legislature to reestablish immunity by a 

two-thirds vote of each house. In 1977 the legislature 

enacted 2-9-111, MCA, and also amended S 2-9-102, MCA, to 

its present form. By enacting § 2-9-111, MCA, the legislature, by its power, granted immunity to counties. 

Although the statute is entitled "Immunity from suit 

for legislative acts and omissions," our previous interpretations of this statute have rejected the contention that only 

acts or omissions which are legislative in nature are immunized. In Bieber, this Court stated, 

Bieber initially argues that the District 

Court incorrectly assessed the meaning of § 

2-9-111, MCA, and its applicability to the Commissioners' action. He asserts that the statute 
represents a narrow exception to the constitutionally mandated rule of no sovereign immunity and as 

such its protection is limited to purely "legislative" acts and excludes day to day "administrative" 

responsibilities such as the firing of a county 

employee. 

Appellant asks that we recognize the distinction between administrative acts which should not 

be protected and legislative acts which should be 

protected. We decline to give credence to appellant's argument because the plain language of the 

statute makes no such distinction. As we have 

stated, this Court will not delve outside the plain 

meaning of the words used in a statute. See, 

W.D. Construction, 707 P.2d at 1113 and Barnes, 736 

P.2d at 134. 

Bieber, 759 P.2d at 146, 147. 

Recently, in Peterson we reiterated that "the action of 

the legislative body need not be legislative in nature to 

afford immunity." Peterson, 773 P.2d at 318. Peterson 

involved the termination of a school district custodian by an 

administrative assistant. The discharge was ratified by the 

school board at a subsequent meeting. We noted that 

$ 2-9-111, MCA, clearly extended immunity to school districts, school boards, and their agents. We also found it 

significant that school districts are statutorily authorized 

to hire and dismiss custodians pursuant to $ 20-3-324(2), 

MCA. Thus we concluded that the immunity statute clearly 

applied to that situation. 

The present case is analogous to Peterson, and we 

conclude that the holding in Peterson is controlling. As 

previously established, the plain language of the stat.ute 

grants immunity to the county for actions of its Board, and 

the Board's members and agents. This immunity is fortified 

in the present case since by statute the Board is assessed 
many statutory powers and duties in relation to the county 

roads. See 7-14-2101 through 2125, MCA. These statutorily 

mandated duties necessitate extensive involvement by the 

Board and its agents in decisions regarding road construction 

and maintenance. 

We conclude that the acts or omissions complained of 

are acts by the Board of Commissioners, or by a member, or by 

its agent, for which Fallon County is immune from suit. 

Accordingly, we affirm the grant of summary judgment in favor 

of Fallon County. 

I1 

Is 5 2-9-111, MCA, constitutional? 

Plaintiff contends that § 2-9-111, MCA, is unconstitutional because it denies him full legal redress, which is a 

fundamental right. He urges that granting immunity to counties classifies victims of torts according to whether they 

are injured by the state, county, or a private party, which 

is a denial of equal protection. He contends that since this 

classification affects a fundamental right, it requires a 

compelling state interest. He urges there is no compelling 

state interest. 

In Peterson we addressed this same contention, stating 

that the right involved was access to the courts, rather than 

full legal redress. Since access to the courts is not a 

fundamental right, Bieber, 759 P. 2d at 148; Linder v. Smith 

(Mont. 1981), 629 P.2d 1187, 1190, 38 St.Rep. 912, 915, the 

State need only show a rational relationship. As in Peter- 

- son, we reaffirm the determination that the statute at issue 

has previously passed the rational relationship test. We 

also note that this Court has recently decided that f.ul1 

legal redress is not a fundamental right under the Montana 

Constitution. See Meech v. Hillhaven West, Inc. (Mont. 
2-9-111, MCA, is constitutional. 

Affirmed. 

We Concur: A 

Justices 

Justice John C. Sheehy, dissenting: 

For the same reason I expressed in the case of Peterson 

v. Great Falls School Dist. No. 1 and A (19891, - Mont. , 

773 P.2d 316, 319, I dissent to the foregoing Opinion. 

-\ 

\ __i-L4+- 

Justice v > i 

I concur in the foregoing dissekyof Justice Sheehy. 

Justice