No. 89-548 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

MICHAEL HAYWORTH, JUDY HAYWORTH 

and MICHAEL HAYWORTH, as Guardian 

Ad Litem for Matthew Hayworth, a 

minor, 

Plaintiffs and Appellants, 

SCHOOL DISTRICT NO. 19, ROSEBUD 

COUNTY, MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Joe L. Hegel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard J. Carstensen; Billings, Montana 

For Respondent: 

Gary L. Day; Lucas & Monaghan; Miles City, Montana 

Filed: 

Submitted on Briefs: June 7, 1990 

Decided: July 13, 1990 
Justice R. C. McDonough delivered the Opinion of the Court. 

Michael and Judy Hayworth brought an action against School 

District No. 19 in Rosebud County, Montana, alleging that school 

officials failed to provide a safe environment for their two 

children, Michael and Heidi. The School District moved for summary 

judgment and their motion was granted. From this judgment, the 

Hayworths appeal. We affirm. 

The issues on appeal are: 

1. Whether it was reversible error for a successor District 

Court Judge, who sat after retirement of the first judge, to rule 

on a motion for summary judgment previously denied by the first 

judge in light of a subsequent decision from the Montana Supreme 

Court applicable to the case at hand. 

2. Whether the District Court erred by determining that the 

Hayworth's claims for monetary damages were barred by 5 2-9-111, 

MCA. 

Michael Hayworth was a student at Colstrip High School in 

Colstrip, Montana. Apparently, Michael had a hard time getting 

along with a number of his fellow students. As a result, he was 

involved in a number of verbal and physical altercations during the 

1985-1986 and 1986-1987 school years. 

Eventually, his relationship with some of the students was 

such that his parents felt forced to remove him and his sister 

Heidi from Colstrip High School. Michael and Heidi transferred to 

a private school. 
Mr. and Mrs. Hayworth brought a lawsuit for damages against 

the School ~istrict, alleging that its employees failed to provide 

a safe educational environment for their children in violation of 

Article XI Section 1 of the Montana constitution, which guarantees 

free quality elementary and secondary education for all citizens 

of the state. The School District, relying upon this Court's 

decision in Bieber v. Broadwater County (1988), 232 Mont. 487, 759 

P. 2d 145, moved for summary judgment. In Bieber, we held that 5 

2-9-111, MCA, provides immunity to county commissioners who 

lawfully discharge an official duty of a legislative body. On 

December 22, 1988, the Honorable Alfred B. Coate denied the motion 

for summary judgment without providing any reasons for the denial. 

Judge Coate retired and was succeeded by the Honorable Joseph 

L. Hegel. In May of 1989, the School ~istrict renewed its motion 

for summary judgment and claimed that Peterson v. Great Falls 

School District No. 1 and A (1989), 773 P.2d 316, 46 St.Rep. 880, 

issued by this Court on May 12, 1989, mandated dismissal of the 

Hayworth's claims. In Peterson, we held that 9 2-9-111, MCA, 

provided immunity from suit for the Great Falls School District and 

its board, as a legislative body, for an action by an agent of the 

Board who performed an official duty. 

The Hayworths argued that the lower court could not properly 

consider the School District's motion. They maintained that Judge 

Coate had already decided this question of law and that his ruling 

had become the "law of the case." The Hayworths further argued 
that Judge Hegel could not overrule his predecessor by granting the 

School District's motion. 

Judge Hegel disagreed with the Hayworths and granted summary 

judgment on August 7, 1989. In granting this motion, Judge Hegel 

relied heavily upon Peterson, 773 P.2d 316. This appeal followed. 

As stated above, the Hayworths maintain that Judge Hegel 

exceeded his judicial powers in granting summary judgment for the 

School District. They maintain that through this action, the lower 

court judge exercised appellate jurisdiction over a decision of his 

predecessor and that he exceeded his jurisdiction. They maintain 

his decision should therefore be reversed. 

We disagree. It is true that judges of coordinate 

jurisdictions sitting in the same court and in the same case may 

not ordinarily overrule the decisions of each other. State ex rel. 

State Highway Comm'n v. Kinman (1967), 150 Mont. 12, 430 P.2d 110. 

This rule articulates the sound policy that when an issue is once 

judicially determined, that should be the end of the matter as far 

as judges and courts of coordinate jurisdictions are concerned. 

However, this rule is not an imperative and it does not necessarily 

mandate that a court does not have discretion, in appropriate 

circumstances, to reconsider a ruling made by another judge in the 

same case. State v. Carden (1976), 170 Mont. 437, 555 P.2d 738. 

We hold that under the facts presented in this case, Judge 

Hegel did not err in reconsidering the School District's motion for 

summary judgment. Between the time of his reconsideration and 
Judge Coate's original denial of the motion, a decision was issued 

by this Court. This decision, Peterson v. Great Falls School 

District No. 1 and A (1989), 773 P.2d 316, 46 St.Rep. 880, further 

defined immunity under 5 2-9-111, MCA, as it was originally found 

to exist in Bieber v. Broadwater County (1988), 232 Mont. 487, 759 

P.2d 145. 

The facts of Peterson substantially differ from those of 

Bieber. In Bieber, immunity was found to preclude lawsuits against 

a county for the actions of a member of the board of county 

commissioners, which is the legislative body of the county. 

Peterson, on the other hand, found immunity to exist when a school 

district was sued for alleged wrongful acts of an agent of the 

school board, which is the legislative body of the school district. 

We agree with Judge Hegel, that Peterson significantly clarified 

5 2-9-111, MCA, as it applies to the case at bar. In view of the 

changed circumstances, presented by the Peterson decision, Judge 

Hegel was justified in reconsidering the School District's motion. 

We must now determine whether the District Court erred in 

granting summary judgment on the issue of immunity granted by 5 2- 

9-111, MCA. Initially, we note that summary judgment is properly 

granted only if there is no genuine issue as to any material fact 

and that the moving party is entitled to judgment as a matter of 

law. Rule 56, M.R.Civ.P. The Hayworths have alleged that the 

School District negligently failed to provide a safe environment 

for their children. For purposes of this appeal we must take this 
allegation as true and determine whether Judge Hegel correctly 

determined that their claims are barred by 5 2-9-111, MCA. 

Section 2-9-111, MCA, states: 

2-9-111. 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 bodyw 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 sovernmental entity is immune from suit for 

an act or omission of its lesislative body or a member, 

officer, or asent 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. 

(Emphasis added.) 

As stated earlier, in Peterson we found immunity to exist when 

the school district was sued for alleged wrongful discharge of an 

employee by the district's administrative assistant. In that case, 

we noted that under 5 2-9-111, MCA, the school district was immune 

from suit for acts or omissions of an agent of its legislative 

body, the school board. 

The case now before us falls directly under this section. The 

Hayworths have not come forward with any fact which would remove 
their case from the purview of 5 2-9-111, MCA. In short, they have 

not put forth any evidence which would support a contention that 

the agents or employees were not acting within the scope of their 

authority or that the school administrators involved in this 

dispute were not agents of the School Board. 

The Hayworths additionally argue that because this case 

involves a breach of their children's constitutional rights under 

Article X, Section 1 of the Montana Constitution, § 2-9-111, MCA, 

is inapplicable. In asserting this argument, the Hayworths rely 

upon Helena Elementary School ~istrict No. 1 v. State of Montana 

(1989), 46 Mont. 169, 769 P.2d 684. Their reliance upon this case 

is misplaced. In Helena Elementary, the plaintiffs sought 

declaratory judgment in order to address funding inequities in the 

state school system. The Hayworths are not seeking declaratory 

judgment, which is not precluded by § 2-9-111, MCA. Rather, they 

are seeking monetary damages which are expressly disallowed by the 

statute. 

Finally, the Hayworths cite B.M. v. State (1982), 200 Mont. 

58, 649 P.2d 425, for their proposition that immunity does not 

apply. In B.M. we held that the state could be held liable for 

negligently placing a child, who needed special education, in a 

class of retarded children. However, in B.M., the plain meaning 

of the actual language used in 5 2-9-111, MCA, was not discussed. 

Moreover, since our decision in B.M., we have decided several 

immunity cases and in the process have arrived at the current 
construction of 5 2-9-111, MCA. See State ex rel. Eccleston v. 

Montana Third Judicial District Court (1989), 783 P.2d 363, 46 

St.Rep. 1929. This construction leads to the conclusion that the 

Hayworthst claims are barred by the immunity found in !j 2-9-111, 

MCA. The judgment of the lower court is therefore affirmed. 

&E%&& Justice 

We Concur: 

c hief J stice 

Justices 
Justice William E. Hunt, Sr., dissenting: 

I dissent. Once again the majority chooses to hide behind the 

cloak of immunity to deny plaintiffs their day in court. Thanks 

to Peterson v. School Dist. No. 1 and A, 237 Mont. 376, 773 P.2d 

316 (1989) and State ex rel. Eccleston v. Montana Third Judicial 

Dist. Court, 783 P.2d 363, 46 St.Rep. 1929 (1989), school districts 

and their employees are insulated from the consequences of their 

negligent acts, even if those acts do not bear the remotest 

resemblance to legislative acts. Perhaps, in Montana, the saying, 

"The King can do no wrong!I1 should be changed to "The School 

District can do no wrong!1' 

I would overrule Peterson and Eccleston and return this case 

to the District Court for trial. 

2 I 

L i/L.LIL-w+fi;? d~~~ Ll,k@/ 

Justice 

I concur in the foregoing dissent of Justice Hunt. 

e 

~usti&e 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 89-548 

MICHAEL HAYWORTH, JUDY HAYWORTH 

and MICHAEL HAYWORTH, as Guardian 

Ad Litem for Matthew Hayworth, 

a minor, 

Plaintiffs and Appellants, v- i -. -, 

1 U7 

v. 1 ORDE-R 

1 .. . 

SCHOOL DISTRICT NO. 19, ROSEBUD 

COUNTY, MONTANA, 

Defendant and Respondent. 

 his Court on July 13, 1990, issued its opinion in the aboveentitled cause. On July 26, 1990, appellants filed herein their 

petition for rehearing. It has come to the Court's attention that 

the child subject to the lawsuit was incorrectly named. 

THEREFORE, IT IS ORDERED that the following changes in the 

final opinion be made: 

1. On page 2, line 3 from the top which originally read: 

ll. . . to provide a safe environment for their two children, 

Michael and . . . should be changed to now read: l1 . . . to 

provide a safe environment for their two children Matthew and . . 11 

2. On page 2, beginning with the fourth full paragraph which 

originally read: "Michael Hayworth was a student at ~olstrip ~igh 

School in ~olstrip, Montana. Apparently, ~ichael had a hard time 

getting along with a number of his fellow students. . . should 

be changed to now read: "Matthew Hayworth was a student at ~olstrip 

High School in Colstrip, Montana. Ap~arentlv, the relationship of 

other students with Matthew was difficult. . . 11 
3. On page 2, last sentence which originally read: "Michael 

and ~eidi transferred to . . . l1 should now read: IfMatthew and 

Heidi transferred to . . . 11 

The appellantst petition for rehearing and the respondentts 

response to the petition having been considered by this Court, 

IT IS FURTHER ORDERED: 

4. That the petition for rehearing is hereby denied. 

5. The Clerk is directed to mail a true copy hereof to all 

counsel of record. (rg DATED thisaway of August, 1990. 

Justices 

Justice William E. Hunt, Sr., and Justice John C. Sheehy would 

grant a rehearing.