NO. 90-184 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

S.M., J.A.M., M.M., J.K.M., and 

Plaintiffs and Appellants, 

-vsR.B., an individual, and MISS 

political subdivision of the State of Montana, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James P. OIBrien and Randolph J. Stevens; OIBrien 

Law Offices, Missoula, Montana. 

For Respondent: 

Larry Jones; Garlington, Lohn & Robinson, Missoula, 

Montana. 

Filed: 

Submitted on briefs: M~Y 21,1991 

Decided: May 23, 1991 

I 

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

The complaint alleges that R.B., an educational aide for the 

Missoula School District, sexually assaulted four-year-old 

plaintiff S.M., who was enrolled in the Missoula School District 

special education program for the developmentally disabled. The 

defendants include the School District and the School District 

personnel involved in the special education program. The District 

Court for the Fourth Judicial District, Missoula County, granted 

defendants' motion to dismiss the Amended Complaint of the 

plaintiffs on the grounds of immunity, and subsequently grantedthe 

motion to dismiss the Second Amended Complaint on the same grounds. 

Plaintiffs appeal. We affirm in part and reverse in part. 

The issues are: 

1. Have the Montana statutes and case law interpretations 

resulted in an ambiguity requiring a reversal of the District Court 

holding that the defendants are immune under 5 2-9-111, MCA? 

2. Does the purchase of insurance waive immunity? 

3. Did the District Court improperly fail to rule on 

plaintiffs' claims under 42 U.S.C. 5 1983? 

4. Is 5 2-9-111, MCA, unconstitutional? 

The facts as alleged in the Amended Complaint and the Second 

Amended Complaint are as follows: 

Plaintiffs included S.M., her two parents, and the other two 

minor children in her family. S.M. was a four-year-old suffering 

developmental disabilities and was enrolled in the School 
District's special education program when the acts occurred. 

Plaintiffs allege that the special education program established 

a special relationship between S.M., her family, and the School 

District. 

R.B. was an educational aide for the School District, who 

helped in the education and training of developmentally disabled 

children attending the School District's program. 

The School District maintained a policy of liability insurance 

insuring against liabilities arising from its negligence. 

Plaintiffs contend the procurement of such insurance constitutes 

a waiver of sovereign immunity to the extent of the insurance 

coverage. 

Plaintiffs alleged that on or about April 16, 1987, R.B. 

sexually assaulted S.M. and committed sodomy and attempted rape. 

S.M. received vaginal lacerations of such severity that 

reconstructive surgery will be required at adulthood. She suffers 

continual nightmares, and has become fearful of school. 

Plaintiffs alleged that the School District and its employees 

were negligent in the hiring, controlling and supervising of R.B. 

as an educational aide. Plaintiffs maintain the School District 

knew or should have known that R.B. had Ita predatory predisposition 

toward young developmentally disabled children by virtue of prior 

reports" that warned the School District of R.B. Is ttantisocial and 

dangerous behaviortt. 

Plaintiffs alleged seven different causes of action with 

various theories of liability which will be discussed where 
appropriate. In substance the defendants assert that plaintiffs1 

claims are barred by the following defenses: 

doctrine of sovereign immunity; 

doctrine of respondeat superior; 

doctrine of exhaustion of remedies; 

failure to seek administrative review; 

lack of jurisdiction; 

claims for monetary damages barred by 5 2-9-108, MCA; 

claims for punitive damages barred by 5 27-1-221, MCA; 

and 

claims barred by 42 U.S.C. 5 1983 (1981). 

Following the failure of R.B. to appear, plaintiffs moved for 

default judgment which was entered against him on September 8, 

The School District filed a Rule 12, M.R.Civ.P., motion to 

dismiss the plaintiffs1 complaint. On January 25, 1990, the 

District Court granted the motion to dismiss the plaintiffs1 

Amended Complaint on the grounds of immunity. Subsequently, the 

District Court also granted defendants' motion to dismiss 

plaintiffs1 Second Amended Complaint on the same grounds. From 

that order, plaintiffs appeal. 

Have the Montana statutes and case law interpretations 

resulted in an ambiguity requiring a reversal of the District Court 

holding that the defendants are immune under 5 2-9-111, MCA? 

Plaintiffs argue there is a statutory ambiguity which is 

apparent upon a comparison of Ij 2-9-111, MCA, the immunity section, 

and 5 20-3-331, MCA, which authorizes the trustees of a school 

district to purchase insurance coverage against liability for 

death, injury or disability of any person. Essentially plaintiffs 
argue there is no purpose in authorizing a school district to 

purchase liability insurance if there is immunity. This contention 

is cared for in Part I1 of this opinion in which we conclude that 

the purchase of liability insurance in this case does constitute 

a waiver of immunity. 

Plaintiffs contend there is ambiguity as a result of the 

various cases previously decided in Montana. In particular, 

plaintiffs rely upon B.M. v. State (1982), 200 Mont. 58, 649 P.2d 

425. Plaintiffs argue that in B.M. this Court found there was no 

governmental immunity for negligence committed under a special 

education program and that such theory should be applied in the 

present case. In considering the cases, it is necessary that we 

first set forth the provisions of 5 2-9-111, MCA: 

Immunity from suit for legislative acts and 

omissions. (1) As used in this section: 

(a) the term ffgovernmental entityff includes the 

state, counties, municipalities, and school districts; 

(b) the term fflegislative bodyff includes the 

legislature vested with legislative power by Article V 

of The Constitution of the State of Montana and any local 

governmental entity given legislative powers by statute, 

including school boards. 

(2) A governmental entity is immune from suit for 

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

officer, or agent thereof. 

(3) A member, officer, or agent of a legislative 

body is immune for damages arising from the lawful 

discharge of an official duty associated with the 

introduction or consideration of legislation or action 

by the legislative body. 

(4) The immunity provided for in this section does 

not extend to any tort committed by the use of a motor 

vehicle, aircraft, or other means of transportation. 

Plaintiffs have not discussed the cases subsequent to B.M. 

which must be considered. In State ex rel. Eccleston v. Montana 
Third Judicial Dist. Ct. (1989), 240 Mont. 44, 53, 783 P.2d 363, 

369, the Court set forth the contentions of the plaintiffs in B.M. 

and stated: 

In B.M., the plaintiffs sued the State for negligence in 

placing a six-year old child in a special education 

program for educable mentally retarded children. The 

State was granted summary judgment based on immunity 

under 5 2-9-111, MCA. We reversed on the grounds that 

the legislature had not enacted legislation to limit the 

liability of school boards in the administration of 

special education programs. We held that in the absence 

of a clear statutory declaration granting immunity it is 

this Court's duty to permit rather than to deny an action 

for negligence. B.M., 649 P.2d at 427. 

However, Eccleston pointed out that 5 2-9-111, MCA, was not 

discussed in B.M. In concluding that under the decisions, the 

plain language of the statute constitutes a clear statutory 

declaration granting immunity, the Court said in Eccleston: 

The plain meaning of the actual language used in 5 

2-9-111, MCA, was not discussed in our decision in B.M. 

v. State. We have decided several other immunity cases 

since our 1982 decision in B.M. In the process, we have 

arrived at the current construction of 5 2-9-111, MCA, 

on a case-by-case basis. B.M.'s rule of strict 

construction still holds true. However it is now clear, 

particularly after our decisions in Bieber and Peterson, 

that the plain language of the statute constitutes a 

clear statutory declaration granting immunity to the 

relators in this case. 

Eccleston, 783 P.2d at 369. The Court then analyzed further and 

pointed out that the statute granted immunity to both the school 

district and its individual employees, and stated: 

In this regard, we are not asserting in this opinion 

that the statute is unequivocally clear at first glance. 

Indeed, several interpretations of 5 2-9-111, MCA, have 

been argued in the line of cases that have come before 

us since the statute's adoption. However, it is this 

line of cases, particularly our recent decisions in 

Bieber and Peterson that has given a specific and 
reasonable interpretation to the statute based on the 

plain meaning of the actual language used. Moreover, 

this interpretation of 5 2-9-111, MCA, leads us to but 

one conclusion: the statute grants immunity to both the 

school district and its individual employees in this 

case. 

Id. at 369. It is clear that Eccleston disposes of the argument 

made by the plaintiff. This interpretation was approved in 

Hayworth v. School Dist. No. 19 (1990), 243 Mont. 503, 795 P.2d 

470, in which this Court affirmed the Eccleston rationale and its 

interpretation of B.M., and reached the conclusion that the claims 

of the plaintiffs in Havworth were barred by the immunity found in 

5 2-9-111, MCA. 

In a similar manner, in Crowell v. School Dist. No. 7 (Mont. 

1991), 805 P.2d 522, 48 St.Rep. 81, this Court affirmed the 

rationale of Eccleston, holding that the school district in Crowell 

was immune from suit for an act or omission of its agent and that 

the physical education teacher was the agent of the school 

district. Further the Court concluded that the claim for damages 

arose from the lawful discharge by the teacher of an official duty 

associated with actions of the school district and its legislative 

body. The Court held that the physical education teacher was 

immune under 5 2-9-111, MCA. 

Montana now has a number of consistent interpretations of 5 

2-9-111, MCA, which are controlling on the present issue. We 

conclude that there is no basis for a reversal of the holding of 

the District Court that the defendants were immune under the 

provisions of 5 2-9-111, MCA. 
Does the purchase of insurance waive immunity? 

Plaintiffs maintain that even if the School District and its 

employees are immune, such immunity is waived to the extent of 

existing liability insurance coverage. The School District argues 

that the grant of immunity is a public right which cannot be 

waived. 

In Crowell this Court concluded that the purchase of insurance 

may constitute a waiver of immunity by a school district. In 

Crowell, the plaintiff alleged that the negligence of the physical 

education teacher and the school district caused her injuries. 

Summary judgment was granted to the defendants based on immunity. 

On appeal plaintiff contended that any such immunity was waived by 

the school district's purchase of an insurance policy specifically 

covering teachers and physical training instructors. After an 

extensive review of Montana legislative history and the case law 

of other jurisdictions, this Court concluded: 

We emphasize that Montana's statutory provisions are 

unique. We conclude that the Montana Legislature has 

reached the following conclusion: while a school 

district is granted immunity of various types, a school 

district still is granted authorityto purchase insurance 

which may have the effect of waiver of immunity to the 

extent of the insurance proceeds. We do not find it 

necessary to imply a waiver, as the intention of the 

Legislature is clear. That intention is reemphasized by 

its authorization of tax levies sufficient to pay for 

insurance premiums. That intention is consistent with 

the legislative theory that a claim against a school 

district should be paid in a manner similar to payment 

required of a private party. We conclude that the 

Legislature has declared its intent to allow a school 

district to waive immunity to the extent of the insurance 

proceeds. 
Crowell, 805 P.2d at 533. This Court then made the following 

holding: 

Balancing all applicable factors, we hold that the 

purchase by the School District of liability insurance 

waives its immunity to the extent of the coverage granted 

by the pertinent insurance policy. 

Crowell, 805 P.2d at 534. 

In accordance with the holding in Crowell, we hold that the 

purchase by the School District of liability insurance waives its 

immunity to the extent of the coverage granted by the pertinent 

insurance policies. We remand to the District Court for further 

proceedings consistent with this holding. 

Did the District Court improperly fail to rule on plaintiffs' 

claims under 42 U.S.C. 5 1983? 

By its Opinion and Order dated January 25, 1990, the District 

Court granted defendantsv motion to dismiss the Amended Complaint 

with prejudice on the grounds that the named defendants were immune 

from suit for damages under 5 2-9-111, MCA, and cases interpreting 

that section. The District Court did not specifically rule on the 

5 1983 claims. Plaintiffs contend that the District Court abused 

its discretion by dismissing those claims. The defendants urge 

that the doctrine of implied findings should be used to reach the 

conclusion that the District Court did rule on the federal claims. 

In a consideration of the 5 1983 claims of the plaintiffs, the 

District Court was required to analyze the complaint, the facts 

presented to it, and to apply the law in reaching a decision as to 
whether or not 5 1983 claims were barred. The court did not make 

such an analysis. Apparently it assumed that the 5 1983 claims 

would be barred under 5 2-9-111, MCA. We note that Howlett v. Rose 

(1990), 110 S.Ct. 2430, is a case in which the United States 

Supreme Court concluded that a state immunity defense was not 

available in a 5 1983 action brought in a state court, when such 

a defense would not be available if the action were brought in a 

federal court. Howlett precludes any implication on our part that 

the District Court properly dismissed 5 1983 claims. 

We therefore remand this issue for consideration and 

determination by the District Court. 

IV 

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

In their pleadings the plaintiffs briefly alleged deprivation 

of constitutional rights. In a similar manner, plaintiffs' briefs 

contain only a limited argument on theories of unconstitutionality. 

It appears that the plaintiffs added constitutional arguments in 

the hope that if previous contentions failed, there might be some 

basis for a reversal on theories of unconstitutionality. In view 

of our remand to the District Court on the issues of waiver of 

immunity by insurance and also 42 U. S .C. 5 1983, it may be that the 

plaintiffs will choose no longer to urge the constitutional issues. 

If they conclude that they wish to present such issues, then both 

sides may present their theories and briefs to the District Court 

and request an appropriate determination by that court. We note 

that the District Court did not rule on this issue. We conclude 
it is not appropriate in this case to consider the issue of 

unconstitutionality of 5 2-9-111, MCA. 

We reverse the orders of dismissal of the District Court and 

remand for further proceedings consistent with this opinion. 

/ If 

6hief Justice 1 

Justices 
Justice Terry N. Trieweiler concurring in part and dissenting in 

part. 

I concur with the result of the majority opinion. Based upon 

this Court's decision in Crowell v. School Dist. No. 7 of Gallatin 

County, 805 P.2d 522, 48 St.Rep. 81 (Mont. 1991), I agree that this 

case should be remanded to the District Court for further 

proceedings consistent with that opinion. However, I disagree with 

the reasoning of the Crowell decision. It is clear to me that the 

legislature did not authorize the waiver of immunity when it 

authorized local governments to purchase insurance. It authorized 

local governments to purchase insurance because it never did create 

the kind of local governmental immunity that has been found to 

exist by this Court. 

I also concur in that part of the majority's opinion which 

remands this case to the District Court for proper consideration 

of the plaintiffs' claims under 42 U.S.C. 5 1983. 

I dissent from that part of the majority's opinion which holds 

that § 2-9-111, MCA, clearly and unambiguously provides immunity 

to the Missoula School District and its employees for the acts 

complained of by the plaintiffs. 

To understand just how far we have come with this Court's 

unique brand of judicial activism, it is necessary to put this 

holding in the proper perspective. The defendant, R.B., is accused 

of raping and sodomizing a four-year-old special education student, 

and in the process, causing serious physical and emotional injury. 

In order to immunize the school district and all of its employees, 

12 
this Court had to conclude that the depraved conduct which is 

complained of was "action by the legislative body." I am confident 

that the members of the Board for the Missoula School District will 

take no satisfaction in this appalling conclusion. 

Section 2-9-111, MCA, is a poorly worded statute which 

provides different types of immunity to different defendants. 

Subsection (2) is relatively straightforward and provides that 

"[a] governmental entity is immune from suit for an act or omission 

of its legislative body or a member, officer, or agent thereof ." 

(Emphasis added.) 

However, subsection (3), which pertains to governmental 

employees in their individual capacities, sets forth a completely 

different description of when immunity applies. It states: 

A member, officer, or agent of a legislative body 

is immune from suit for damages arising from the lawful 

discharge of an official duty associated with the 

introduction or consideration of legislation or action 

by the legislative body. 

Section 2-9-111(3), MCA. 

In this case, plaintiffs sued both the school district and 

several of its employees. 

It is obvious from any reasonable interpretation of these two 

sections that liability of individual governmental employees is 

granted on a much more limited basis than liability for the 

governmental entity itself. If not, it would have been a simple 

matter for the legislature to provide in subsection (2) that 

"a governmental entity and its emplovees are immune from suit from 

an act or omission of its legislative body, or a member, officer, 

13 
or agent thereof. (Emphasis added. ) The legislature chose not 

to do that. Therefore, this Court should not do so. 

In his concurring opinion to Crowell, Chief Justice J. A. 

Turnage correctly points out that: 

I1In the construction of a statute, the office of the 

judge is simply to ascertain and declare what is in terms 

or in substance contained therein, not to insert what has 

been omitted or to omit what has been inserted.I1 Section 

1-2-101, MCA. This is the rule of law governing 

statutory construction, and it is an appropriate and 

proper rule. There is no place for individual preference 

or desire to become the rule of law when the Court 

interprets statutory language. 

I agree with Chief Justice Turnage1s conclusion regarding the 

proper role of this Court. However, I disagree that this Court has 

adhered to that rule of statutory construction when interpreting 

§ 2-9-111, MCA. If it did, it could certainly not have concluded 

that the sodomization and rape of a four-year-old special education 

student by a teacher's aide was Ifthe lawful discharge of an 

official duty associated with the introduction or consideration of 

legislation or action by the legislative body." 

The reason we are at the point we have reached with today's 

decision is that this Court has ignored the statutory admonishment 

found in 5 1-2-101, MCA, and substituted its collective personal 

preference for a literal application of the statutory language 

found in 5 2-9-111(3), MCA. The misapplication of that statute 

will result in countless hardships to innocent victims throughout 

the State of Montana. I prefer not to be part of blind adherence 

to precedent which is both legally incorrect and morally 

indefensible. 
Furthermore, I dissent from that part of the majority decision 

which refuses to address the constitutionality of 5 2-9-111, MCA, 

as it has been applied by this Court. 

The principal reason for which this Court exists is to enforce 

the Constitution of the State of Montana. When the legislature, 

through its statutes (as they are written or as this Court 

interprets them), violates the ~onstitution, this Court owes 

Montana's citizens its judgment to that effect. 

Article 11, § 4, of the Montana constitution provides in part 

that ''no person shall be denied the equal protection of the laws. I' 

That provision of our state constitution is similar to rights 

provided for in the 14th Amendment of the United States 

Constitution. The equal protection clauses of both constitutions 

go to the very heart of the reason for which this Court exists. 

They guarantee that all Montana citizens shall be treated fairly. 

There is no greater example in the recent history of this 

Court of unfair treatment of Montana citizens than in this Court's 

recent decisions on the issue of local governmental liability. 

Those decisions have been inconsistent and irrational. And yet, 

they deny Montana citizens the most fundamental rights that any 

citizen in a free country possesses. They deny Montanans the right 

to use their courts to seek redress from a government which injures 

them through irresponsible, negligent, or even intentional and 

unlawful conduct. 

In Meech v. Hillhaven, 238 Mont. 21, 776 P.2d 488 (1989), this 

Court held that there is no fundamental right in Montana to full 
legal redress for injuries or damages caused by the unlawful or 

negligent act of another. Therefore, according to that decision, 

classifications which give different rights to different classes 

of tort victims need not pass the strict scrutiny test and need not 

be justified by a compelling governmental interest. The state need 

only establish that the disparate treatment of similar claims is 

rationally related to a state interest. While I disagree with this 

Court's decision in Meech, I am satisfied that the patchwork of 

arbitrary classifications created by this Court's decisions on 

local governmental liability cannot meet the most liberal rational 

basis analysis. 

According to this Court's decisions, if a person is seriously 

injured due to the negligent maintenance and signing of roads in 

Fallon County, that person has no recourse against local 

government. Miller v. Fallon County, 240 Mont. 241, 783 P.2d 419 

(1989). However, if that same person sustains the same injuries 

under the exact same circumstances in the City of Billings, he may 

be fully compensated. Irion v. Peterson, 807 P.2d 714, 48 St.Rep. 

258 (Mont. 1991). What is the rational basis for such a 

distinction? 

Under this Court's application of the law, if a local citizen 

is paralyzed because a county road crew digs a ten foot ditch 

across the road and leaves it unmarked at night, that victim is 

without any remedy. Miller. However, if a member of the same road 

crew gets into a county truck, runs a red light and strikes another 

local citizen, that citizen can be fully compensated, no matter how 

16 
minor his or her injury. 5 2-9-111(4), MCA. What is the rational 

basis for such a distinction? 

Under this Court's series of decisions, if a local citizen is 

injured because he or she slips on the steps at the University of 

Montana, that person may be fully compensated. Mitchell v. 

University of Montana, 240 Mont. 261, 783 P.2d 1337 (1989). 

However, if that same person is injured because he slips and falls 

on the steps of the local junior high school, he is without a 

remedy. Eccleston v. District Court, 240 Mont. 44, 783 P.2d 363 

(1989). What is the rational basis for such a distinction? 

Under this Court's decisions, if a Montana citizen is injured 

due to the negligence or illegal conduct of a member of the park 

board which is appointed by the county commission in Yellowstone 

County, that person may be fully compensated. Koch v. Yellowstone 

County, 243 Mont. 447, 795 P.2d 454 (1990). However, if that same 

person is injured due to the negligence of the road foreman hired 

by the commissioners for Yellowstone County, that person is without 

a remedy. Miller. 

Under this Court's recent decisions, if a citizen of Montana 

is injured due to the negligence of an employee of the Town of 

Whitefish, and if that town is responsible enough to purchase 

liability insurance for the protection of its citizens, then that 

injured victim can be fully compensated for his injuries. Crowell. 

However, if that person's spouse is injured by the same conduct 

and under the same circumstances, by public officials in Kalispell, 

and if that town is irresponsible enough to go without liability 

17 
insurance, then that person is entitled to no compensation, no 

matter how disabling or catastrophic his injuries. What is the 

rational basis for any of these distinctions? 

If this Court can conceive for a rational basis for the 

arbitrary classifications of tort victims that have been 

established by its series of decisions set forth above, then it has 

rendered the important constitutional guarantee of "equal 

protectionl1 meaningless, and no one in Montana is protected from 

the arbitrary whims that create discrimination among its citizens. 

If the equal protection clause is so meaningless, then the 

legislature can decide that doctors can be sued, but that lawyers 

are immune; that plumbers can be sued, but that carpenters are 

immune; and that women can be sued, but that men are immune. The 

ultimate test will be who has the most influential lobby at the 

legislature. 

To avoid such situations is exactly why we have a constitution 

and a judicial branch of government. However, the majority has 

abdicated its responsibility to address this critical issue based 

on speculation that plaintiffs were not that serious about it in 

the first place. 

On appeal, the plaintiffs have clearly raised the fact that 

they, as victims of abuse in a public school, are being treated 

differently than if they had suffered the same abuse in a private 

school. There is no question about the fact that if a four-yearold preschool student was sodomized and raped in a private school, 

she and her family would be entitled to reasonable compensation for 

18 
ths terril~lc physical and enotional injuries that she had 

sustained. On appeal., the plaintiffs have asked this Court to 

justify that arbitrary class distinction. Tnis Court obviously 

cannot do so, and so, has, in effect, told the plaintiffs, ''don't 

bother us with constitutional te~hnicalities.~~ 

It is ironic that during the same year that Montana became the 

48th state to honor slain civil rights symbol, Martin Luther King, 

Jr., this Court refuses to recognize the civil rights of its 

private citizens when in conflict with local bureaucrats and their 

agents. 

I would accept this Court's obligatioi~ to decide the 

constitutionality of 5 2-9-111, MCA, as it has heen applied, and 

I wculc? find that, 3s it has been applied, it violates the equal 

pro tectiol? clause of t21e P!~:?ta:la ~nc? federal Constitutions. 

For these reasons I dissent fron the majority opinion. 

I concur in the foregoing concurrence and dissent of Justice 
Justice Karla M. Gray, concurring in part and dissenting in part. 

I agree with the result of the majority opinion in remanding 

to the District Court for further proceedings in light of the 

availability of insurance coverage, although I disagree with its 

rationale in Crowell v. School Dist. No. 7 (Mont. 1991), 805 P.2d 

522, 48 St.Rep. 81, that the availability of the coverage is 

predicated upon a waiver of immunity. I also agree with the 

majority's remand for consideration and determination of the § 1983 

claims. I must, however, respectfully dissent from the Court's 

interpretation of § 2-9-111, MCA, as it applies to this case and 

fromthe Court's refusal to address the constitutional issue before 

it. 

With regard to the immunity issue, I am not blind to the 

importance of precedent. However, I cannot assent to the 

application of this Court's precedents in the area of so-called 

legislative immunity as it relates to this case. For the Court to 

expand its previous holdings which were, in my view, legally 

incorrect to begin with, to provide immunity to an employee who (if 

the allegations herein are taken as true) rapes and sodomizes a 

four-year-old special education student on the basis that the 

employee was engaged in the lllawful discharge of an official duty 

associated with action by the legislative body" is beyond the 

bounds of reason, legal or otherwise. 

Finally, it is my view that the Court has an obligation to 

address the equal protection issue which is before it. The 
classifications which have resulted from the Court's immunity 

rulings are troubling, at best, and may be constitutionally infirm. 

I have not determined whether I believe those classifications can 

meet the rational basis test. I am, however, convinced that it is 

time for the Court as a whole to address the question. If it is 

the Court's view that additional briefing or argument is needed, 

the Court need only direct such a course of action. We should not 

careen further down the immunity path without determining whether 

we have been a party, through our interpretations of legislative 

enactments, to depriving the citizens of Montana of their 

constitutional rights.