No. 90-497 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

JAMES H. TROUT, 

Plaintiff and Appellant. 9 r. 

ANDREA BENNETT, as an individual and as 

State Auditor and Ex Officio Commissioner 

of Insurance; THE STATE OF MONTANA; THE 

JOHN ALDEN LIFE INSURANCE CO.; and THE 

PHOENIX MUTUAL INSURANCE CO., 

APR 9 - 1992 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James P. Reynolds, Reynolds, Motl, Sherwood 

and Wright, Helena, Montana 

For Respondents: 

Michael J. Mulroney, Luxan & Murfitt, Helena, 

Montana; Richard E. Gillespie, Keller, Reynolds, 

Drake, Sternhagen & Johnson, Helena, Montana; 

Stephen M. Frankino, Hughes, Kellner, 

Sullivan & Alke, Helena, Montana 

Filed: 

Submitted on Briefs: March 22, 1991 

Decided: April 9, 1992 

' Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

James H. Trout (Trout), appeals the adverse judgment in his 

action as a licensed non-resident life insurance agent against 

Andrea Bennett, individually and as Commissioner of Insurance. The 

District Court for the First Judicial District, Lewis and Clark 

County, bifurcated the action into two parts. In the first portion 

the District Court held that Trout violated certain statutes, and 

fined him $250 for placing business with an insurance carrier 

before he had an appointment, and also fined him $250 for 

advertising himself as an agency. In the second portion, the 

District Court entered summary judgment for defendant Bennett, 

individually and as Commissioner. The District Court concluded 

that Andrea Bennett was not a llpersonlt under 42 U. S. C. fj 1983, and 

also concluded that Andrea Bennett was quasi-judicially immune. 

Trout appeals. We affirm in part and reverse in part. 

The issues before the Court are: 

1. Did Trout violate fj 33-17-201(4), MCA (1985)? 

2. Did Trout violate fj 33-18-203, MCA? 

3. Is Andrea Bennett, individually and as Commissioner, 

immune from fj 1983 claims? 

4. Does the doctrine of quasi-judicial immunity render 

Andrea Bennett, individually and as Commissioner, immune from suit 

under state law as to the remaining claims? 

5. Did the District Court err in failing to rule on Trout's 

motion to file a second amended complaint? 

Trout is a California resident licensed as an insurance agent 

2 
in the State of ~alifornia. He started his business in Montana in 

1983. A non-resident life insurance agent's license was issued to 

him by the Montana Department of Insurance (Department). The 

license listed a California address and authorized Trout to sell 

life and disability insurance in Montana as a non-resident insurer. 

The license further provided that he could not wsolicit business 

nor accept premiums under the name of [his] employing agency, or in 

conjunction with, or under the name of any other organization." 

Two events sparked the investigation of Trout. First, the 

Department received a phone inquiry as to whether Trout was 

licensed to do business in Montana as "Trout Insurancett and 

received a letter complaining about Trout's activities. Second, 

the Department received a letter from Trout himself containing the 

letterhead ItTrout Insurancett, listing his Billings business 

address. 

The Department investigator proceeded on the assumption that 

Trout, a licensed non-resident agent, was not permitted to maintain 

a ~illings office and sell insurance in Montana, and that the 

stationery and telephone book ads indicated he was holding himself 

out to the public as a resident insurer. Trout filed the assumed 

business name of "Trout Insurance Agencytt with the Secretary of 

State, under 5 30-13-203, MCA. The Department investigator 

informed Trout he could not operate an office or do any business as 

Trout Insurance because he was not licensed as such. 

After completion of the investigation, filing of a complaint 

by the Department, giving of notice of hearing, and hearing before 
a hearing examiner at which both Trout and the Department were 

represented in person and by counsel, the hearing examiner made 

proposed findings of fact, conclusions of law and order dated May 

28, 1986. The Commissioner reviewed the same and in turn made 

extensive findings of fact, conclusions of law and order dated July 

16, 1986. The Commissioner concluded that Trout had violated the 

statutes in a number of respects and by order revoked his nonresident license for twelve months and also ordered that he pay an 

administrative fine of $2,500 to the office of the Commissioner. 

Trout then commenced the present action in which he alleged 

that Andrea Bennett individually and as Commissioner had violated 

various of his constitutional rights and caused damages to him. He 

sought a reversal of the Commissioner's order of July 16, 1986, 

with regard to the statutory violations and fine, and also 

requested a reversal of his license suspension. By the same 

complaint Trout claimed damages on various theories under 42 U.S.C. 

5 1983, and also a denial of constitutional rights by reason of the 

requirement of taking down a sign and ceasing the selling of 

insurance in Montana, as well as other constitutional tort 

theories. The District Court entered an order bifurcating the 

causes of action covered by the complaint. 

As the first part of the bifurcation, the District Court 

considered the appeal from the order of the Commissioner. The 

District Court considered the matter under 5 33-1-711 (4) , MCA, 

which provides that upon receipt of the transcript and evidence, 

the District Court shall hear the matter and following hearing, 
that the District Court is to consider the evidence contained in 

the transcript, exhibits and documents together with such other 

additional evidence as may be offered by either party. Proceeding 

under that authority, the District Court reconsidered the evidence 

and made new findings of fact and conclusions of law. The District 

Court reversed the determination of the Commissioner in a number of 

respects which are not involved in this appeal. By its orders 

dated August 25, 1989, and January 31, 1990, the District Court 

concluded that Trout had violated 5 33-17-201(4), MCA (1985), by 

placing business with John Alden Life Insurance Company before he 

held an appointment issued by the Commissioner, and fined Trout 

$250 for the offense; and also concluded that Trout violated 5 33- 

18-2 03, MCA, by advertising himself as I1Trout Insurance Agencyn and 

fined Trout $250 for that violation. The District Court 

specifically reversed the Commissioner with regard to the 

suspension of his license and allowed Trout to continue to sell 

insurance without interruption, and also reversed the $2500 fine. 

As the second step in the bifurcation process, on May 30, 

1990, the District Court ruled on the motion for summary judgment 

made by Andrea Bennett, individually and as Commissioner. The 

District Court first concluded that the Commissioner was not a 

"personm under 42 U.S.C. 5 1983, and granted summary judgment in 

the omm missioner's favor on 5 1983 claims. The District Court 

concluded that Will v. Michigan Dept. of State Police (1989), 491 

U.S. 58, was controlling. The District Court stated: 

Will v. Michigan Dept. of State Police, 491 U.S. 

I 109 S.Ct. I 105 L.Ed.45 (1989), decided after 
Trout filed his amended complaint, disposes of this 

issue. 42 U.S.C., Section 1983, the provision under 

which Trout seeks monetary damages, provides that any 

"personw acting under color of state law, who violates 

another's constitutional rights is liable to the injured 

party. Will affirmed a Michigan Supreme Court decision 

which held that neither a state nor a state official 

acting in his or her official capacity is a llpersonw 

under 42 U.S.C., section 1983. Id. at -1 109 S.Ct. at , 105 L.Ed. at 58. 

. . . Clearly Will holds that "a [section 19831 suit 

against a state official in his or her official capacity 

is not a suit against the official but rather is a suit 

against the official's office." Will concluded that 

neither the states nor state officials are vlpersonsll 

subject to suit under Section 1983. Although Trout 

alleges in his amended complaint that certain statutes 

are unconstitutional, the constitutional counts in the 

amended complaint rely exclusively on 42 U.S.C., Section 

1983 for relief, and do not request declaratory or 

injunctive relief. Summary judgment, dismissing both 

[Andrea Bennett] personally and the Office of State 

Auditor and Ex Officio Commissioner of Insurance on the 

counts alleging constitutional violations, is therefore 

proper. 

The District Court cited Koppen v. Board of Medical Examiners 

(1988), 233 Mont. 214, 759 P.2d 173, and concluded that the 

Commissioner was quasi-judicially immune from suit on the remaining 

counts and granted the Commissioner's motion for summary judgment 

on those counts. As a result, the ~istrict Court dismissed the 

Commissioner individually and as State Auditor and Ex Officio 

Commissioner of Insurance, with prejudice. 

Trout brings this appeal from both parts of the bifurcated 

proceeding. 

Did Trout violate 5 33-17-201(4), MCA (1985)? 

Section 33-17-201(4), MCA (1985) provided: 

No agent shall place any business, other than coverage of 
his own risks, with any insurer as to which he does not 

then hold an appointment or license as agent under this 

chapter. . . . 

Trout was fined $250 for violating 5 33-17-201(4), MCA (1985), by 

placing business with John Alden Life Insurance Company before he 

held an appointment to do so issued by the Commissioner. The 

District Court found that Trout requested John Alden Life Insurance 

Company to appoint him as a non-resident agent in Montana. The 

District Court found that Trout solicited insurance business prior 

to receiving a validated appointment from that company as was 

required by the Commissioner. The record contains substantial 

evidence to support that finding. 

We affirm the conclusion of the District Court in holding that 

Trout did violate H 33-17-201(4), MCA (1985). 

Did Trout violate 5 33-18-203, MCA? 

Section 33-18-203, MCA, provides: 

No person shall make, publish, disseminate, circulate, or 

place before the public, or cause, directly or 

indirectly, to be made, published, disseminated, 

circulated, or placed before the public, in a newspaper, 

magazine, or other publication or in the form of a 

notice, circular, pamphlet, letter, or poster or over any 

radio or television station or in any other way, an 

advertisement, announcement, or statement containing any 

assertion, representation, or statement with respect to 

the business of insurance or with respect to any person 

in the conduct of his insurance business, which is 

untrue, deceptive, or misleading. (Emphasis added). 

Trout maintains that he never advertised as an llagency.lt He 

contends that his Billings phone book listings as llTrout Jim 

Insurancew and ItTrout InsuranceI1 did not represent an agency. As 

the Commissioner pointed out, and as found by the District Court, 
Trout alleged the following in his Amended Complaint: 

12. Trout registered an assumed name, "Trout Insurance 

Agency," with the Montana Secretary of State on January 

21, 1985. Thereafter he ordered and used stationery with 

the name Trout Insurance Agency and the address of his 

Billings office for correspondence relating to his 

insurance sales in Montana. . . . (Emphasis added). 

The District Court further concluded that Trout had signed a 

restriction letter which indicated that the license was issued to 

him as an individual, but that Trout had represented himself as an 

agent. We conclude there is substantial evidence to support the 

findings of the District Court. We affirm the holding that Trout 

violated 5 33-18-203, MCA. 

Is Andrea Bennett, individually and as Commissioner, immune 

from 5 1983 claims? 

Title 42 U.S.C. 5 1983 provides: 

Every person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory 

or the District of Columbia, subjects, or causes to be 

subjected, any citizen of the United States or other 

person within the jurisdiction thereof to the deprivation 

of any rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or other 

proper proceeding for redress. . . . 

Trout points to the reliance of the District Court on the Will 

case, as above described, and argues that Will applies only to 

those claims against Andrea Bennett in her "official capacity. 'I He 

further argues that Will provides no protection for claims against 

her in her "personal capacity." Trout concedes that under Will, 

Andrea Bennett is immune in her official capacity from the 5 1983 

claims against her. Trout's argument is further emphasized in his 
special brief regarding the case of Hafer v. Melo (1991) , 112 S. Ct. 

358, which was decided on November 5, 1991. 

Andrea Bennett contends that she was acting within the scope 

of her official duties and employment. She maintains that under 

Will, neither a state nor a state official acting in his or her 

official capacity is a ''person11 under 5 1983. Andrea Bennett 

further contends that Hafer has no bearing on the outcome of this 

case. We disagree. 

Because Hafer is dispositive of this issue, we will discuss it 

at some length. Hafer sought election as Auditor General of 

Pennsylvania. During the campaign she was given a list of names of 

persons who allegedly secured their jobs in the Auditor General's 

office through payments to former employees. Shortly after 

becoming Auditor General she dismissed eighteen employees. Eight 

of those employees sued Hafer in Federal District Court asserting 

a claim under 42 U.S.C. 1983. Other respondents also sought 

damages because they alleged they had been discharged because of 

their political affiliation and support for Haferls opponent. The 

United States Supreme Court granted certiorari "to address the 

question whether state officers may be held personally liable for 

damages under 5 1983 based upon actions taken in their official 

capacities.I1 The United States Supreme Court discussed at some 

length the comparison between official capacity suits and personal 

capacity suits. The court pointed out that personal capacity suits 

seek to impose individual liability for actions under color of 

state law, and as a result it is sufficient to establish personal 
liability under 5 1983 by showing that an official acted under 

color of state law and caused deprivation of a federal right. The 

court pointed out how this is specifically covered by the above 

quoted definition from 5 1983. 

In discussing the distinction further, the Supreme Court 

pointed out that state officials sued in their official capacities 

are not persons for purposes of suit because they assume the 

identity of the government which employs them. By contrast, 

officers sued in their personal capacity come to court as 

individuals, so that a government official in the role of a 

personal capacity defendant fits comfortably within the above 

statutory term llperson.w At this point the court pointed out that 

Hafer attempted to argue that the distinction turned upon the 

capacity in which the state official was acting when the plaintiff 

was injured. The court refused to accept this theory, pointing out 

that the requirement of action under state law means that Hafer may 

be liable for discharging respondents precisely because of her 

authority as Auditor General. Hafer also argued there was a 

distinction as to acts taken under color of state law, claiming 

that such actions were immune. Again the court found no support in 

the broad language of 5 1983. 

The court emphasized that it has in the past refused to extend 

absolute immunity beyond a very limited class of officials, 

including the President, legislators carrying out their legislative 

functions, and judges carrying out their judicial functions, "whose 

special functions or constitutional status requires complete 
protection from suit.tt Hafer, 112 S.Ct. at 364. In support of 

that conclusion, the Supreme Court stated: 

State executive officials are not entitled to absolute 

immunity for their official actions. Scheuer v. Rhodes, 

supra. 

- Id. at 364. Hafer further contended that under Will, there should 

not be recovery because the Eleventh Amendment bars suits in 

federal court by private parties seeking to impose a liability 

which must be paid from public funds in the state treasury. In 

discussing this issue, the Supreme Court stated: 

"[Slince Ex parte Younq, 209 U.S. 123 [28 S.Ct. 441, 52 

L.Ed. 7141 (1908) , It we said ItIt has been settled that the 

Eleventh Amendment provides no shield for a state 

official confronted by a claim that he had deprived 

another of a federal right under the color of state law.It . . . While the doctrine of Ex parte Younq does not apply 

where a plaintiff seeks damages from public treasury, 

damages awards against individual defendants in federal 

courts "are a permissible remedy in some circumstances 

notwithstanding the fact that they hold public office.It . . . That is, the Eleventh Amendment does not erect a 

barrier against suits to impose "individual and personal 

liabilityvt on state officials under 5 1983. 

Hafer, 112 S.Ct. at 364. 

After such an extensive discussion, the Court unanimously 

held: 

We hold that state officials, sued in their 

individual capacities are ttpersonsM within the meaning of 

5 1983. The Eleventh Amendment does not bar such suits, 

nor are state officers absolutely immune from personal 

liability under 5 1983 solely by virtue of the "off icialn 

nature of their acts. 

Hafer 112 S.Ct. at 365. 

In connection with the holding in Hafer, we point out that the 

amended complaint in the present case named Andrea H. Bennett, as 

an individual and as State Auditor and Ex Officio Commissioner of 
Insurance in the title, and also alleged the following in the 

complaint: 

This action is brought against this Defendant in her 

official and personal capacities. 

We conclude that under Hafer, which had not been decided at 

the time of the summary judgment by the District Court, the 

District Court's interpretation of Will as holding that neither 

states nor state officials are "personsw subject to suit under 5 

1983, must be reversed. We hold that under the United States 

Supreme Court decision in Hafer, Andrea Bennett, State Auditor and 

Commissioner of Insurance of Montana was sued by Trout in her 

individual capacity and as a result can be classified as a l'personll 

within the meaning of 5 1983, and that as such a state officer, 

Andrea Bennett is not absolutely immune from personal liability 

under 5 1983 solely by virtue of the "official" nature of her acts. 

We reverse the District Court on this issue and remand for further 

proceedings consistent with this opinion. 

Does the doctrine of quasi-judicial immunity render Andrea 

Bennett, individually and as Commissioner, immune from suit under 

state law as to the remaining claims? 

Trout concedes that the doctrine of quasi-judicial immunity 

protects the Commissioner from her actions in filing charges 

against him, the holding of the administrative hearing, and the 

ultimate decision finding him to have violated various code 

provisions. However, he argues that a distinction must be made 

between these quasi-judicial functions, and the actions in behalf 

12 
of the Commissioner prior to the filing of the administrative 

charges. In particular, he urges that the actions of the 

Commissioner through her agent, Dan McGowan, in ordering him to 

remove his sign from his Billings office and requiring that he 

cease the sale of insurance in Montana under his non-resident 

license, clearly violated his constitutional rights to due process, 

equal protection, freedom to travel and free speech. While Trout 

might agree that the investigation made in order to provide a basis 

for the filing of charges was quasi-judicial in nature, he contends 

a distinction must be made with regard to the actions which 

essentially forced him out of business. He argues that this issue 

involves questions of fact which preclude summary judgment on the 

issue. 

In State v. District Court (1990), 246 Mont. 225, 805 P.2d 

1272, this Court addressed the issue of whether the State and the 

Division of Workers' Compensation are protected by quasi-judicial 

immunity for their admitted negligence in renewing the privilege of 

an employer to self-insure under the Workerst Compensation Law. 

This Court held that the nature of the functions performed were 

central to the determination of the issue, and stated: 

For immunity to apply the function of the Division must 

be quasi-judicial rather than administrative or 

ministerial. 

State v. ~istrict Court, 805 P.2d at 1274. Furthermore, the Court 

provided the following definitions: 

~uasi-judicial functions are those which lie midway 

between the judicial and ministerial ones. The lines 

separating them from such . . . are necessarily 

indistinct; but, in general terms, when the law, in words 
or by implication, commits to any officer the duty of 

looking into facts, and acting upon them, not in a way 

which it specifically directs, but after a discretion in 

its nature judicial, the function is termed quasijudicial. 

In the same line, a ministerial act has also been defined as 

an act performed in a prescribed legal manner, in obedience to 

the law or the mandate of legal authority, without regard to, 

or the exercise of, the judgment of the individual upon the 

propriety of the acts being done. 

- Id. at 1275. In distinguishing State v. District Court from Koppen 

v. Board of Medical Examiners (1988), 233 Mont. 214, 759 P.2d 173, 

we looked at the definition of quasi-judicial function found in 6 

2-15-102 (lo), MCA: 

gfQuasi-judicial function" means an adjudicatory 

function exercised by an agency, involving the exercise 

of judgment and discretion in makins determinations in 

controversies. . . . 

The Court stated: 

The case before us is distinguishable from Kop~en. 

In KoDDen, the Board allegedly failed to respond to 

complaints, adversarial in nature, that it received 

regarding a physician's fitness to practice medicine and 

to take remedial action. We noted that the action or 

inaction by the Board in Ko~pen was its decision not to 

revoke or limit the physician's license or initiate such 

action when faced with complaints concerning his 

professional conduct. There was no allegation that the 

Board failed to even consider the complaints. 

Here, we first note that there is no controversy 

from the outset as in Ko~pen. The facts merely involve 

the filing of an application rather than an adversarial 

setting involving a dispute or controversy. We conclude 

that immunity does not attach because the Division is not 

expressly designated a quasi-judicial board, see § 2-15- 

124, MCA, see generally Title 2, Chapter 15, MCA, nor was 

it performing a quasi-judicial function . . . (Citations 

Omitted). (Emphasis in original.) 

- Id. at 1275. 

In pertinent part § 2-15-102(10), MCA, provides: 
(10) nQuasi-judicial functionl1 means an 

adjudicatory function exercised by an agency, involving 

the exercise of judgment and discretion in making 

determinations in controversies. The term includes but 

is not limited to the functions of interpreting, 

applying, and enforcing existing rules and laws granting 

or denying privileges, rights, or benefits; issuing, 

suspending, or revoking licenses, permits, and 

certificates; determining rights and interests of adverse 

parties; evaluating and passing on facts; awarding 

compensation; fixing prices; ordering action or abatement 

of action; adopting procedural rules; holding hearings; 

and any other act necessary to the performance of a 

quasi-judicial function. 

On the question of whether or not an investigation by the 

commissioner s off ice should be classed as quasi- judicial in 

nature, the case of Gerber v. Commissioner of Ins. (1990), 242 

Mont. 369, 786 P.2d 1199, is controlling: 

As a discretionary function, the Insurance Commissionerfs 

conduct of an investigation based on a consumerfs 

complaint against an insurer is protected by quasijudicial immunity. 

As a result, the investigation of Trout clearly is protected by 

quasi-judicial immunity. 

The narrow issue which concerns us does not involve the 

investigation itself. The issue is whether the agent of the 

commissioner properly required Trout to remove his sign and stop 

the sale of insurance. Our review of the 1985 sections of Montana 

Code Annotated which applied to these particular actions does not 

disclose any statutory provision granting authority to the 

Commissioner or any agent of the Commissioner to require an agent 

or insurance producer to take down a sign in the manner alleged by 

Trout, or requiring an agent or producer to close down his office 

so far as the sale of insurance is concerned, as again is alleged 
by Trout. The record before us on this aspect is both confusing 

and incomplete so that we are not able to determine the specific 

actions which were alleged to have occurred on the part of Dan 

McGowan in behalf of the Commissioner. 

We therefore conclude there is a remaining issue of material 

fact which precludes summary judgment with regard to the alleged 

conduct of the required taking down of the Trout sign and the 

closing of Trout Insurance. We conclude it is appropriate to 

reverse the District Court on this narrow specific issue. 

In addition Trout claims that he suffered damages by reason of 

the notification of various insurance companies of his suspension 

in derogation of the automatic stay provision under 5 33-1-711(2), 

MCA, which in 1985 read: 

(2) Upon filing of the notice of appeal therein, 

the court shall have full jurisdiction and shall 

determine whether such filing shall operate as a stay of 

the order or action appealed from, except that in the 

following instances the filing of the notice of appeal 

shall automatically stay the order appealed from pending 

the judgment of the district court on the appeal: 

(a) appeal from suspension or revocation of the 

license of an agent, solicitor, or surplus line agent; 

(Emphasis added.) 

Again the record is inadequate for us to determine the precise 

steps which were taken. Again it appears there is an issue of 

material fact which precluded summary judgment on this narrow 

aspect as well. 

We therefore hold that summary judgment is reversed with 

regard to the claim of quasi-judicial immunity as to the alleged 

removal of the sign, closing of the insurance business, and alleged 

improper notification of insurance companies in light of the 
automatic stay provided for in 1 33-1-711(2), MCA (1985). We 

remand on these specific issues for further proceedings by the 

District Court consistent with this opinion. 

v 

Did the District Court err in failing to rule on Trout's 

motion to file a second amended complaint? 

Rule 15(a), M.R.Civ.P., provides that after a responsive 

pleading has been served, a party may amend his pleading only by 

leave of court or by written consent of the adverse party, and that 

"leave shall be freely given when justice so requires." Trout 

filed his motion to amend his complaint after summary judgment was 

entered against him. However, we note that he failed to provide 

any basis for such an amendment. Instead, his motion consisted of 

a one sentence request to amend without any explanation of why he 

wished to do so. We conclude that there was no abuse of discretion 

on the part of the District Court in denying Trout's motion to 

amend and hold that such a denial was proper. 

We affirm the ~istrict Court on Issues I, 11, and V. We 

reverse the District Court on Issue I11 regarding the 9 1983 

claims, and on the specified narrow issues under Issue IV, and 

remand for further proceedings consistent with this opinion. 

/- 

'\ Chief Justice 

I 
Justices 
Justice Terry N. Trieweiler specially concurring in part and 

dissenting in part. 

I concur in part and dissent in part from the opinion of the 

majority. My reasons are discussed under the headings assigned to 

the various issues raised by the appellant. 

CIVIL RIGHTS ACTION 

I concur with the majority's reversal of the District Court on 

this issue, but do not feel that it was necessary to make that 

decision dependent on the Supreme Court decision in Hafer v. Melo 

(1991), 502 U.S. , 112 S.Ct. 358, 116 L.Ed.2d 301. 

In his complaint, plaintiff sued Andrea H. Bennett 

individually in her personal capacity, and alleged that she 

violated his constitutional rights in the manner in which she 

personally applied provisions of the Montana Insurance Code to him. 

He specifically alleged that Bennett applied the Montana Insurance 

Code in such a way as to violate the Privileges and Immunities 

Clause of the U.S. Constitution, Article IV, Section 2, and the 

Equal Protection Clause of the Fourteenth Amendment to the 

Constitution. He also alleged that the Commissioner personally 

acted under color of state law to deprive him of his property 

without due process of law in violation of the Fourteenth Amendment 

to the United States Constitution. 

The plaintiff's allegations were not controverted. Bennett 

moved for summary judgment based purely on her assertion that she 
was immune from suit. Summary judgment was granted by the District 

Court based purely on its conclusion that Bennett could not be sued 

under the Civil Rights Act because of the U.S. Supreme Courtf s 

decision in Will v. Michigan Dept. of State Police (1989) , 491 U.S. 58, 109 

S.Ct. 2304, 105 L.Ed.2d 45. However, Will did not grant immunity to 

public officials from suits under 42 U.S.C. H 1983, when the suit 

is based upon allegations of personal misconduct by that public 

official. In Will, the plaintiff alleged that he had been denied a 

promotion within the Michigan Department of State Police for an 

improper reason. He joined the Director of State Police as a 

defendant in his official capacity without alleging that the 

director himself had personally engaged in any culpable conduct. 

The Will decision stands for the proposition that state officials 

cannot be sued in their official capacity based simply on respondeat 

superior because such a suit is not in reality against the official 

as an individual, but rather against his office. 

Where a 5 1983 action against a state official is based upon 

that official's personal misconduct, he is still personally liable 

to suit. The difference in liability was explained in Kentucky v. 

Graham (1985), 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114, in the 

following language: 

Proper application of this principle in damages actions 

against public officials requires careful adherence to 

the distinction between personal- and official-capacity 

suits. Because this distinction apparently continues to 
confuse lawyers and confound lower courts, we attempt to 

define it more clearly through concrete examples of the 

practical and doctrinal differences between personal-and 

official-capacity actions. 

Personal-capacity suits seek to impose personal liability 

upon a government official for actions he takes under 

color of state law. See, e.g., Scheuer v. Rhodes, 416 U.S. 

232, 237-238, 40 L.Ed.2d 90, 94 S.Ct. 1683, 71 Ohio 

Ops.2d 474 (1974). Official-capacity suits, in contrast, 

"generally represent only another way of pleading an 

action against an entity of which an officer is an 

agent. Monell v. New York City Dept. of Social Services, 4 3 6 U . S . 658, 690, n. 55, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978). 

As long as the government entity receives notice and an 

opportunity to respond, an official-capacity suit is, in 

all respects other than name, to be treated as a suit 

against the entity. Brandon, supra, at 471-472, 83 L.Ed. 2d 

878, 105 S.Ct. 873. It is not a suit against the official 

personally, for the real party in interest is the entity. 

Thus, while an award of damages against an official in 

his personal capacity can be executed only against the 

official's personal assets, a plaintiff seeking to 

recover on a damages judgment in an official-capacity 

suit must look to the government entity itself. 

Graham, 473 U.S. at 165, 166. 

Therefore, where it can be shown that a public official acting 

under color of state law personally caused a deprivation of the 

claimant's federal rights, that individual is still personally 

liable under 42 U.S.C. 5 1983. The District Court erred when it 

held that the personal suit against Bennett was barred by the U.S. 

Supreme Court's decision in Will, regardless of the outcome in Hafer. 

For these reasons, I concur in the decision to reverse the 

District Court's summary judgment in favor ofthe defendant Bennett 

which dismissed plaintiff's claims filed pursuant to 42 U.S.C. 
QUASI-JUDICIAL IMMUNITY 

The issue of whether Bennett's acts which are complained of 

were administrative and ministerial, as opposed to quasi-judicial, 

is an interesting one, and by itself was probably sufficient to 

preclude summary judgment. However, it seems to me that there is 

a more important issue involved with the dismissal of potentially 

meritorious claims based upon judicially created quasi-judicial 

immunity. Article 11, Section 18, of the Montana Constitution, 

provides as follows: 

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. 

To my knowledge, the Montana Legislature has never voted to impose 

quasi-judicial immunity by a 2/3 vote, or by any other vote. 

Therefore, to judicially create such immunity contravenes an 

express provision of the Montana Constitution which this Court is 

sworn to uphold. Our responsibility is to enforce the 

Constitution, not to undermine it. For that reason, I would 

reverse this Court s decisions in Koppen v. Board of Medical Examiners 

( 19 8 8 ) , 2 3 3 Mont . 2 14 , 7 5 9 P .2 d 17 3 , and Gerber v. Commissioner of Ins~lrance 

(1990), 242 Mont. 369, 786 P.2d 1199. I would also reverse the 

District Court's decision granting summary judgment to the 

defendant on the basis of quasi-judicial immunity, and dissent from 

that portion of the majority opinion which suggests that this 
doctrine may protect the defendant in some activities, but not 

others. 

SECTION 33-18-203, MCA (1985) 

Section 33-18-203, MCA (1985) , prohibits an individual from 

making untrue, deceptive, or misleading advertisements regarding 

the insurance business. There was absolutely no evidence in this 

case that plaintiff ever misrepresented anything or mislead anyone. 

The District Court determined that plaintiff violated the 

above section by advertising himself as I1Trout Insurance Agency," 

when he in fact was only licensed individually. However, all of 

the evidence was to the contrary. 

Copies of his letterhead, his telephone book listing, and his 

yellow pages advertisement were introduced into evidence at the 

administrative hearing. Nowhere on any of these documents does the 

word "agency" appear. 

Plaintiff's letterhead refers to IrTrout Insurance. His 

telephone listings in the Billings telephone books refer to IfTrout 

Insurancen and I1Trout, Jim In~urance.~~ His advertisement in the 

yellow pages lists him as I1Trout In~urance.~~ There was no evidence 

offered by the Insurance Commissioner that plaintiff ever held 

himself out as being associated with an agency. 

Ignoring the record and ignoring the fact that plaintiff was 

never charged by the Insurance Commissioner with advertising as 

IvTrout Insurance Agency,I1 this Court concludes that an error in 
plaintiff's amended complaint constitutes ggsubstantial evidence" to 

support the findings of the District Court. 

Allegations in complaints are not evidence, and the majorityf s 

opinion cites no evidence in support of the District Court's 

conclusion that plaintiff violated 5 33-18-203, MCA (1985). The 

fact that a person could be convicted of a statute as broad as this 

statute without notice of the basis for the charges, and with 

absolutely no evidence offered to support the charges, is a 

frightening development. I would reverse the District Court's 

conclusion that plaintiff violated that section, and dissent from 

the majority opinion which affirms that conclusion. 

SECTION 33-17-201 (41, MCA (1985)- 

The second statute that plaintiff was accused of violating 

prevents agents from placing business with an insurer with whom he 

does not hold an appointment. It does not specify the nature of 

the appointment that is required. In this case, plaintiff did hold 

an appointment with John Alden Life Insurance Company in California 

at the time that he wrote the policy which formed the basis of the 

charges against him. 

It would have been reasonable for plaintiff to conclude that 

pursuant to Montana's reciprocity agreement with California it was 

permissible for him to write the policy in question. Section 

33-17-403, MCA (1985) provides: 

An applicant for a nonresident license must be licensed 

in the state of his residence to act as agent for the 

kinds of insurance for which he applies for licensing in 
the state of Montana. The nonresident agent shall be 

licensed to represent only those insurers which he is 

licensed to represent in the state of his residence and 

which are licensed in the state of Montana. The 

insurance supervisory official of the applicant's state 

of residence must certify that the applicant is licensed 

and to the extent of the license. 

If plaintiff's conduct in this case constituted a violation of 

the law, it seems to me that fundamental principles of fairness and 

prior case law require that he is at least entitled to advance 

notice as to what the law commands and forbids. Papachristou v. City of 

Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. In 

this case, the statutes that plaintiff was found to have violated 

are totally deficient in that respect. 

Section 33-17-201(4), MCA (1985), also provides for an 

exception which was not mentioned in the majority opinion. The 

statute makes its requirements applicable I1except as provided in 

. . . 5 33-17-1104 as to life or disability insurance agents." 

Plaintiff was in fact licensed as a "life and/or disability 

insurance agent. 

Section 33-17-1104, MCA (1985), provides that: 

A life or disability insurance agent may from time to 

time place excess or rejected risks in any other life or 

disability insurer authorized to transact insurance in 

this state, with the knowledge and approval of the 

insurer or insurers as to which the agent is so licensed, 

and may receive a commission thereon without being 

required to have a license as to such other insurer. 

There is a factual issue regarding whether the policy that 

plaintiff actually wrote for John Alden prior to his appointment in 
Montana was an excess or rejected risk. That issue was never 

addressed by the District Court. However, if we assume that the 

group for whom the policy was issued fits into either of those 

categories, plaintiff did not violate the insurance code when he 

placed the Computer Land account with John Alden. 

For these reasons, I do not believe there is substantial 

evidence to support the District Court's finding that plaintiff 

violated 5 33-17-201(4), MCA (1985). I dissent from the majority 

opinion which concludes that there was, and would reverse the 

District Court on this issue. 

I concur in the foregoing concurrence and dissent of Justice 

Trieweiler.