No. 89-548 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

MICHAEL HAYWORTH, JUDY HAYWORTH and MICHAEL HAYWORTH, as Guardian Ad Litem forMatthew 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, 1990Justice 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 SchoolDistrictmoved 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 ofverbal andphysical 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 ColstripHigh 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 XISection 1 of theMontana 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 HonorableAlfred B. Coate denied themotion for summary judgment without providing any reasons for thedenial. Judge Coate retired and was succeededby the HonorableJoseph L. Hegel. InMay 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'smotion. Theymaintained that Judge Coate had already decided this question of law and that his ruling had become the "law of the case." The Hayworths further arguedthatJudgeHegel could not overrule his predecessorby granting the School District'smotion. Judge Hegel disagreed with the Hayworths and granted summary judgment on August 7, 1989. Ingranting 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 throughthis action,the lower court judgeexercisedappellate jurisdictionover a decisionof 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 thedecisions of each other. State ex rel. StateHighway Comm'n v. Kinman (1967), 150Mont. 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 thematter as far

as judges and courts of coordinate jurisdictions are concerned. However, this rule isnot an imperative and itdoesnot necessarily mandate that a court does not have discretion, in appropriate circumstances,to reconsider a rulingmade by another judge in the

same case. Statev. Carden (1976), 170Mont. 437, 555 P.2d 738. We hold that under the facts presented in this case, Judge Hegel did not err in reconsidering the SchoolDistrict'smotion for summary judgment. Between the time of his reconsideration andJudge Coate's original denial of themotion, a decisionwas issued by this Court. This decision, Peterson v. Great Falls School DistrictNo. 1 andA (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. InBieber, immunitywas found topreclude 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 otherhand, found immunity to exist when a school district was sued for alleged wrongful acts of an agent of the school board, which isthe legislativebody 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. Inview of the changed circumstances, presented by the Peterson decision, Judge Hegelwas justified in reconsideringthe School District'smotion. We must now determine whether the District Court erred in granting summary judgment on the issue of immunity grantedby 

### 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 appealwe must take thisallegation 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 ofTheConstitution of theState of Montana and any local governmental entity given legislative powersby statute, including schoolboards. (2) A sovernmental entity is immune from suit for an act or omission of its lesislativebody 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 associatedwith the introduction or consideration of legislation or action by the legislativebody. (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.

(Emphasisadded.)

As stated earlier, in Petersonwe found immunitytoexistwhen the school district was sued for alleged wrongful discharge of an employeeby thedistrict's administrativeassistant. Inthat case,
we noted that under 

### 5 2-9-111,MCA, the school districtwas immune from suit for acts or omissions of an agent of its legislative body, the school board. Thecase nowbeforeus falls directly under this section. The Hayworths have not come forward with any fact which would removetheir case from thepurview of 5 2-9-111,MCA. In short,theyhave 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 1of theMontana 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), 46Mont. 169, 769 P.2d 684. Their relianceupon 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 seekingmonetary damageswhich 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 currentconstruction 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 Hayworthstclaims 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:

hief J stice 

# c

JusticesJustice William E. Hunt, Sr., dissenting:



### Idissent. Once again themajority chooses to hidebehind 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, inMontana, the saying, "The King can do no wrong!I1 should be changed to "The School District can do no wrong!1' Iwould overrule Peterson and Eccleston and return this case to the District Court for trial.

2 I 

# Li/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 forMatthew Hayworth, a minor, Plaintiffs and Appellants, i v- -.

-, 

### 1 U7 

### v. 

### 1 ORDE-R 

### 1 .. . 

### SCHOOLDISTRICTNO. 19,ROSEBUD COUNTY, MONTANA, Defendant and Respondent.



### his Court onJuly 13, 1990, issued its opinion in the aboveentitled cause. On July 26, 

### 1990, appellants filed herein their petition for rehearing. Ithas come to theCourt's attention that the child subject to the lawsuitwas incorrectlynamed. 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 childrenMatthew and

# .. 11 2. 

### Onpage 2,

### beginning with the fourth fullparagraphwhich originally read: "MichaelHayworthwas 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 changedtonowread: "MatthewHayworthwas a studentat~olstrip High School in Colstrip,Montana. Ap~arentlv, the relationship of other students with Matthew was difficult. 

# .

# . 113. On page 2, last sentencewhich originally read: "Michael and ~eidi transferred to

# ... l1 should now read: IfMatthewand Heidi transferred to

# ... 11 The appellantstpetition 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 ishereby denied. 5. The Clerk is directed to mail a true copy hereof to all counsel of record. 

### (rg DATED thisawayof August, 1990.

Justices

JusticeWilliam E. Hunt, Sr., and Justice John C. Sheehy would grant a rehearing.