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Newville v. State8/29/1994
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"Quasi-judicial function" means an adjudicatory function exercised by an agency, involving the exercise of judgment and discretion in making determinations in controversies. . . .
In Great Western Sugar, 805 P.2d at 1277, we further clarified this as follows: . . . Here, the statutory scheme mandates that the Division at least review a self-insurer's financial condition. Admittedly the statutes and administrative rules grant the Division discretion in renewing GW's application as a plan No. 1 self-insurer. However, in this case the Division never exercised this discretion to determine GW's eligibility to self-insure its risk under plan no. 1. Rather, there was an admitted complete failure by the Division to undertake any of the review necessary to made such a determination. Thus, the negligence occurred at a stage where the Division's function was entirely ministerial: (Emphasis supplied.)
"Official action, the result of performing a certain specific duty arising from designated facts, is a ministerial act. . . . Another way of expressing the same thought is that a duty is to be regarded as ministerial when it is a duty that has been positively imposed by law, and its performance required at a time and in a manner, or upon conditions which are specifically designated; the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion. . . . And that a necessity may exist for the ascertainment, from personal knowledge or from information derived from other sources, of those facts or conditions, upon the existence or fulfillment of which, the performance of the act becomes a clear and specific duty, does not operate to convert the act into one judicial in its nature." (Emphasis in original.)
The discretion afforded by the statutes and rules in this case was never exercised, rather, the Division breached its underlying duty, mandated by the statutory scheme for plan no. 1 insurance, to investigate GW's eligibility to self-insure. Such act was purely ministerial . . . and cannot be a basis for invoking quasi-judicial immunity:
"Accordingly, to be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The fact that an employee normally engages in "discretionary activity" is irrelevant if, in a given case, the employee did not render a considered decision. . . ." (Citations omitted.)
We then noted that our analysis was limited to common-law quasi-judicial immunity, but that the "exercise of judgment and discretion" required by § 2-15-102(9), MCA, of MAPA to invoke immunity was analogous to the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), under which the FTCA does not waive immunity for claims based on negligence of governmental employees exercising or performing discretionary functions of a federal agency, regardless of whether the discretion is abused. Great Western Sugar, 805 P.2d at 1277-78.
In Berkovitz v. United States (1988), 486 U.S. 531, 536, 108 S.Ct. 1958-59, 100 L.Ed.2d 531, 540-41, the United States Supreme Court said immune acts must involve "permissible exercise of policy discretion":
he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Montana Personal Injury Attorneys
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