No. 90-497 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

JAMES H. TROUT, Plaintiff and Appellant. 9r.

ANDREA BENNETT, as an individual and as StateAuditor and Ex Officio Commissioner of Insurance; THE STATE OF MONTANA; THE JOHNALDEN 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



## ' ClerkJustice 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, individuallyand asCommissionerof Insurance. The District Court for the First Judicial District, Lewis and Clark County,bifurcated the action into twoparts. Inthe 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 thatAndrea Bennett was not a llpersonlt under 42U.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, individuallyand 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 2in the State of ~alifornia.He started his business inMontana in 1983. A non-resident life insurance agent's licensewas 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 inMontana asanon-resident insurer. The license further provided that he could not wsolicitbusiness

nor accept premiums under thename 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 Insurancettand received a letter complaining about Trout's activities. Second, the Department received a letter fromTrout himself containing the letterhead ItTrout Insurancett,listing his Billings business address. The Department investigator proceeded on the assumption that Trout, a licensednon-resident agent,wasnot permitted tomaintain

a ~illingsoffice and sell insurance in Montana, and that the stationery and telephonebook ads indicatedhe 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 Trouthe could not operate an office or do anybusiness 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 beforea 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 findingsof fact,conclusions of lawand orderdated 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 twelvemonths and also ordered that he pay an administrative fine of $2,500to 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 ofhis constitutional rights and caused damages tohim. 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 complaintTroutclaimed damages onvarious theories under 42U.S.C. 

### 5 1983,and also a denial of constitutional rightsby reasonof 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 asmay be offered by eitherparty. Proceeding under that authority, the District Court reconsidered the evidence andmade new findingsof factand conclusions of law. TheDistrict Court reversed thedetermination of theCommissioner ina 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 JohnAlden 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- 18-203,MCA,by advertisinghimself as I1TroutInsuranceAgencynand 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 "personmunder 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 afterTrout 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 "personwacting 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.



# .. .ClearlyWill holds that "a [section19831 suit against a state official inhis 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 42U.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 constitutionalviolations, 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 suiton theremaining 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 anybusiness, other than coverageofhis 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 JohnAlden Life Insurance Company before he held an appointment to do so issued by the Commissioner. The District Court found that Trout requestedJohnAlden 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 conclusionof the District Court inholding 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 shallmake, publish, disseminate,circulate,or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, orplaced before thepublic, in a newspaper, magazine, or other publication or in the form of a notice,circular, pamphlet, letter,orposter oroverany 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. (Emphasisadded). Trout maintains that he never advertised as an llagency.ltHe contends that his Billings phone book listings as llTroutJim Insurancewand ItTroutInsuranceI1did 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. Thereafterhe orderedandused stationery with the name Trout Insurance Agency and the address of his Billings office for correspondence relating to his insurance sales in Montana. 

# . 

# . . (Emphasisadded). 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 personwho, 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 thereoftothedeprivation 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. 

# . . . Troutpoints to the relianceof theDistrict Court on theWill case, as above described, and argues that Will applies only to those claimsagainstAndrea Bennett inher "officialcapacity.'I He further argues thatWill 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 inhisspecial brief regardingthe caseof Haferv. 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. BecauseHafer isdispositiveof 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 theirpolitical affiliation and support for Haferlsopponent. The United States Supreme Court granted certiorari "to address the question whether state officersmay 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 courtpointed 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 personalliability 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.wAt this point the court pointed out that Hafer attempted to argue that the distinction turned upon the capacity inwhich the state official was acting when theplaintiff

was injured. The court refused to accept this theory,pointing out that the requirement of action under state law means that Hafermay 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 ithas in thepast refused to extend absolute immunity beyond a very limited class of officials, includingthePresident,legislators carrying outtheir legislative functions,and judges carryingout their judicial functions, "whose special functions or constitutional status requires completeprotection 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. Scheuerv. 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 hasbeen settledthat the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived anotherof a federal right under the color of state law.It



# ...While the doctrine of Exparte Younqdoes 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 "individualand 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 capacitiesare ttpersonsM within themeaning of 5 1983. The EleventhAmendment does not bar such suits, nor are state officers absolutely immune from personal liability under 5 1983 solelyby virtue of the "officialn nature of their acts. Hafer 112 S.Ct. at 365. In connection with theholding inHafer,wepoint out that the amended complaint in the present case named Andrea H. Bennett, as an individual and as StateAuditor and Ex Officio Commissioner ofInsurance in the title, and also alleged the following in the complaint: This action isbrought against this Defendant inher 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 inHafer,Andrea Bennett, StateAuditor and Commissioner of Insurance of Montana was sued by Trout in her individual capacityand as a result canbe classifiedas 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 solelyby virtue of the "official" nature ofher 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 12of 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 violatedhis constitutionalrightstodue process, equal protection, freedom to travel and free speech. While Trout might agree that the investigation made in order toprovide abasis for the filing of charges was quasi-judicial innature,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 inrenewing theprivilege 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-judicialfunctions are those which lie midway between the judicial and ministerial ones. The lines separating them from such 

# . . . are necessarily indistinct;but, ingeneral terms,when the law, inwordsor by implication, commits to any officer the duty of looking into facts, and acting upon them, not in a way which it specificallydirects,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 actperformed inaprescribed legal manner, in obedienceto the law or themandate 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 distinguishingStatev. District Court fromKoppen

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-judicialfunction" 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 aphysician's fitnesstopractice 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 thephysician'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 immunitydoesnot attach because theDivision isnot expresslydesignated 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. - Inpertinent 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 rulesand lawsgranting or denying privileges, rights, or benefits; issuing, suspending, or revoking licenses, permits, and certificates; determining rightsand interests ofadverse 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 office 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 adiscretionary function,theInsuranceCommissionerfs 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 themanner 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 allegedby 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. InadditionTrout claims thathe suffereddamagesby reason of the notification of various insurance companies of his suspension in derogation of the automatic stayprovision 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; (Emphasisadded.) 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,closingof the insurancebusiness,and alleged improper notification of insurance companies in light of theautomatic stay provided for in 1 33-1-711(2), MCA (1985). We remand on these specific issues for further proceedings by the District Court consistentwith 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 orby written consent of theadverseparty, and that "leave shall be freely given when justice so requires." Trout filed hismotion to amend his complaint after summary judgmentwas 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 todo so. We concludethat 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 ~istrictCourt 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 furtherproceedings consistent with this opinion.

/-

'\ Chief Justice

IJusticesJustice 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 theheadings assigned to the various issues raised by the appellant. CIVIL RIGHTS ACTION Iconcurwith themajority's reversal of theDistrict 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 theMontana Insurance Code tohim. He specifically alleged that Bennett applied theMontana 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 dueprocess of law inviolation of the FourteenthAmendment to the United States Constitution. The plaintiff's allegations were not controverted. Bennett moved for summary judgment based purely on her assertion that shewas immune from suit. Summary judgmentwasgranted by the District Court basedpurely on its conclusionthat Bennett could notbe sued under the Civil Rights Act because of the U.S. Supreme Courtf s decision in Will

### v.MichiganDept. ofStatePolice (1989)

### , 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45. However,Willdid 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, theplaintiff 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
cannotbe sued in their official capacitybased 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 thisdistinctionapparently continues toconfuse 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-capacitysuitsseekto imposepersonal 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,incontrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent. Monell

### v. NewYork

### CityDept.ofSocialServices, 436 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 againstthe entity. Brandon,supra, at 471-472, 83L.Ed.2d 878, 105 S.Ct. 873. It isnota suitagainst the official personally, for therealparty in interest is theentity. 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 canbe shown that apublic 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 thepersonal suit against Bennett was barred by the U.S. SupremeCourt's decision in Will, regardless of the outcome inHafer. For these reasons, 

### I concur in the decision to reverse the DistrictCourt's summary judgment in favorofthedefendant 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 andministerial, 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 specificallyprovided by lawby a 2/3 vote of each house of the legislature. Tomy knowledge, theMontana Legislaturehas 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 ofMedical Examiners (1988 )

### , 2 3 3 Mont

# . 214

## , 759 P.2d 173

### ,and 

### Gerber

### v. CommissionerofIns~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 thebasis of quasi-judicial immunity,and dissent from that portion of the majority opinion which suggests that thisdoctrine 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

casethatplaintiff evermisrepresented anything ormislead anyone. The District Court determined that plaintiff violated the above section by advertising himself as I1TroutInsuranceAgency," when he in fact was only licensed individually. However, all of the evidence was to the contrary. Copies of his letterhead,his telephonebook listing,and his yellow pages advertisement were introduced into evidence at the administrativehearing. Nowhere on any of thesedocumentsdoes 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 listshim as I1TroutIn~urance.~~ Therewasno 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 IvTroutInsurance Agency,I1this Court concludes that an error inplaintiff's amendedcomplaint constitutesggsubstantial evidence"to support the findings of the District Court. Allegations in complaintsarenot evidence,and themajorityf 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 aperson couldbe convicted of a statute asbroad 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 isrequired. Inthis case,plaintiff did hold

an appointmentwithJohnAlden Life InsuranceCompany inCalifornia at the time that he wrote the policy which formed the basis of the charges against him. Itwould have been reasonable for plaintiff to conclude that pursuant toMontana'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 inthe 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 residencemust certify that the applicant is licensed and to the extent of the license. Ifplaintiff's conduct inthis caseconstituteda violationof the law, it seemstome that fundamental principles of fairnessand prior case law require that he is at least entitled to advance notice as to what the law commands and forbids. Papachristouv. Cityof 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 I1exceptas 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 timeplace 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 insurersas towhich 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 forJohnAldenprior tohis appointment inMontana 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 JohnAlden. 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.