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


MICHAEL HAYWORTH, JUDY HAYWORTH
and MICHAEL HAYWORTH, as Guardian
Ad Litem for Matthew Hayworth, a
minor,
               Plaintiffs and Appellants,


SCHOOL DISTRICT NO. 19, ROSEBUD
COUNTY, MONTANA,
               Defendant and Respondent.



APPEAL FROM:   District Court of the Sixteenth Judicial District,
               In and for the County of Rosebud,
               The Honorable Joe L. Hegel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Richard J. Carstensen; Billings, Montana
         For Respondent:
               Gary L. Day; Lucas   &   Monaghan; Miles City, Montana


                                 Submitted on Briefs:     June 7, 1990
                                               Decided:   J u l y 13, 1 9 9 0
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

       Michael and Judy Hayworth brought an action against School
District No. 19 in Rosebud County, Montana, alleging that school
officials failed to provide a safe environment for their two
children, Michael and Heidi. The School District moved for summary
judgment and their motion was granted.      From this judgment, the
Hayworths appeal.    We affirm.
       The issues on appeal are:
       1.   Whether it was reversible error for a successor District
Court Judge, who sat after retirement of the first judge, to rule
on a motion for summary judgment previously denied by the first
judge in light of a subsequent decision from the Montana Supreme
Court applicable to the case at hand.
       2.   Whether the District Court erred by determining that the
Hayworth's claims for monetary damages were barred by 5 2-9-111,
MCA.
       Michael Hayworth was a student at Colstrip High School in
Colstrip, Montana.     Apparently, Michael had a hard time getting
along with a number of his fellow students.     As a result, he was
involved in a number of verbal and physical altercations during the
1985-1986 and 1986-1987 school years.
       Eventually, his relationship with some of the students was
such that his parents felt forced to remove him and his sister
Heidi from Colstrip High School. Michael and Heidi transferred to
a private school.
     Mr. and Mrs. Hayworth brought a lawsuit for damages against
the School ~istrict,alleging that its employees failed to provide
a safe educational environment for their children in violation of
Article X I Section 1 of the Montana constitution, which guarantees
free quality elementary and secondary education for all citizens
of the state.    The School District, relying upon this Court's
decision in Bieber v. Broadwater County (1988), 232 Mont. 487, 759
P.2d 145, moved for summary judgment.    In Bieber, we held that 5
2-9-111, MCA, provides    immunity to county commissioners who
lawfully discharge an official duty of a legislative body.      On
December 22, 1988, the Honorable Alfred B. Coate denied the motion
for summary judgment without providing any reasons for the denial.
     Judge Coate retired and was succeeded by the Honorable Joseph
L. Hegel.   In May of 1989, the School ~istrictrenewed its motion
for summary judgment and claimed that Peterson v. Great Falls
School District No. 1 and A (1989), 773 P.2d 316, 46 St.Rep. 880,
issued by this Court on May 12, 1989, mandated dismissal of the
Hayworth's claims.    In Peterson, we held that 9 2-9-111, MCA,
provided immunity from suit for the Great Falls School District and
its board, as a legislative body, for an action by an agent of the
Board who performed an official duty.
     The Hayworths argued that the lower court could not properly
consider the School District's motion.   They maintained that Judge
Coate had already decided this question of law and that his ruling
had become the "law of the case."    The Hayworths further argued
that Judge Hegel could not overrule his predecessor by granting the
School District's motion.
     Judge Hegel disagreed with the Hayworths and granted summary
judgment on August 7, 1989.       In granting this motion, Judge Hegel
relied heavily upon Peterson, 773 P.2d 316. This appeal followed.
     As stated above, the Hayworths maintain that Judge Hegel
exceeded his judicial powers in granting summary judgment for the
School District. They maintain that through this action, the lower
court judge exercised appellate jurisdiction over a decision of his
predecessor and that he exceeded his jurisdiction.         They maintain
his decision should therefore be reversed.
     We   disagree.     It   is    true   that   judges   of   coordinate
jurisdictions sitting in the same court and in the same case may
not ordinarily overrule the decisions of each other. State ex rel.
State Highway Comm'n v. Kinman (1967), 150 Mont. 12, 430 P.2d 110.
This rule articulates the sound policy that when an issue is once
judicially determined, that should be the end of the matter as far
as judges and courts of coordinate jurisdictions are concerned.
However, this rule is not an imperative and it does not necessarily
mandate that a court does not have discretion, in appropriate
circumstances, to reconsider a ruling made by another judge in the
same case.   State v. Carden (1976), 170 Mont. 437, 555 P.2d 738.
     We hold that under the facts presented in this case, Judge
Hegel did not err in reconsidering the School District's motion for
summary judgment.     Between the time of his reconsideration and
Judge Coate's original denial of the motion, a decision was issued
by this Court.     This decision, Peterson v. Great Falls School
District No. 1 and A (1989), 773 P.2d 316, 46 St.Rep. 880, further
defined immunity under 5 2-9-111, MCA, as it was originally found
to exist in Bieber v. Broadwater County (1988), 232 Mont. 487, 759
P.2d 145.
       The facts of Peterson substantially differ from those of
Bieber. In Bieber, immunity was found to preclude lawsuits against
a county for the actions of a member of the board of county
commissioners, which    is the legislative body of the county.
Peterson, on the other hand, found immunity to exist when a school
district was sued for alleged wrongful acts of an agent of the
school board, which is the legislative body of the school district.
We agree with Judge Hegel, that Peterson significantly clarified
5 2-9-111, MCA, as it applies to the case at bar.   In view of the
changed circumstances, presented by the Peterson decision, Judge
Hegel was justified in reconsidering the School District's motion.
       We must now determine whether the District Court erred in
granting summary judgment on the issue of immunity granted by 5 2-
9-111, MCA.   Initially, we note that summary judgment is properly
granted only if there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.    Rule 56, M.R.Civ.P.   The Hayworths have alleged that the
School District negligently failed to provide a safe environment
for their children.   For purposes of this appeal we must take this
allegation as true and determine whether Judge Hegel correctly
determined that their claims are barred by 5 2-9-111, MCA.
     Section 2-9-111, MCA, states:
     2-9-111.  Immunity from suit for legislative acts and
     omissions. (1) As used in this section:
          (a) the term "governmental entity" includes the
     state, counties, municipalities, and school districts;
          (b) the term "legislative bodyw includes the
     legislature vested with legislative power by Article V
     of The Constitution of the State of Montana and any local
     governmental entity given legislative powers by statute,
     including school boards.
          (2) A sovernmental entity is immune from suit for
     an act or omission of its lesislative body or a member,
     officer, or asent thereof.
          (3) A member, officer, or agent of a legislative
     body is immune from suit for damages arising from the
     lawful discharge of an official duty 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.
     (Emphasis added.)

     As stated earlier, in Peterson we found immunity to exist when
the school district was sued for alleged wrongful discharge of an
employee by the district's administrative assistant. In that case,
we noted that under 5 2-9-111, MCA, the school district was immune
from suit for acts or omissions of an agent of its legislative
body, the school board.
     The case now before us falls directly under this section. The
Hayworths have not come forward with any fact which would remove
their case from the purview of 5 2-9-111, MCA. In short, they have
not put forth any evidence which would support a contention that
the agents or employees were not acting within the scope of their
authority or that the school administrators involved in this
dispute were not agents of the School Board.
     The Hayworths additionally argue that because this case
involves a breach of their children's constitutional rights under
Article X, Section 1 of the Montana Constitution,     §   2-9-111, MCA,
is inapplicable.    In asserting this argument, the Hayworths rely
upon Helena Elementary School ~istrictNo. 1 v. State of Montana
(1989), 46 Mont. 169, 769 P.2d 684. Their reliance upon this case
is misplaced.       In Helena Elementary, the plaintiffs sought
declaratory judgment in order to address funding inequities in the
state school system.     The Hayworths are not seeking declaratory
judgment, which is not precluded by   §   2-9-111, MCA.   Rather, they
are seeking monetary damages which are expressly disallowed by the
statute.
     Finally, the Hayworths cite B.M. v. State (1982), 200 Mont.
58, 649 P.2d 425, for their proposition that immunity does not

apply.     In B.M. we held that the state could be held liable for
negligently placing a child, who needed special education, in a
class of retarded children.    However, in B.M., the plain meaning
of the actual language used in 5 2-9-111, MCA, was not discussed.
Moreover, since our decision in B.M., we have decided several
immunity cases and in the process have arrived at the current
construction of 5 2-9-111, MCA.    See State ex rel. Eccleston v.
Montana Third Judicial District Court (1989), 783 P.2d 363, 46
St.Rep. 1929. This construction leads to the conclusion that the
Hayworthst claims are barred by the immunity found in   !j   2-9-111,
MCA.   The judgment of the lower court is therefore affirmed.

                                      &&
                                      E%
                                       &         Justice




c
We Concur:


        hief J stice




          Justices
Justice William E. Hunt, Sr., dissenting:


     I dissent. Once again the majority chooses to hide behind the
cloak of immunity to deny plaintiffs their day in court.          Thanks
to Peterson v. School Dist. No. 1 and A, 237 Mont. 376, 773 P.2d
316 (1989) and State ex rel. Eccleston v. Montana Third Judicial
Dist. Court, 783 P.2d 363, 46 St.Rep. 1929 (1989), school districts
and their employees are insulated from the consequences of their
negligent acts, even if those acts do not bear the remotest
resemblance to legislative acts.   Perhaps, in Montana, the saying,
"The King can do no wrong!I1 should be changed to "The School
District can do no wrong!1'
     I would overrule Peterson and Eccleston and return this case
to the District Court for trial.



                                                    d~~~
                                                     I
                                        2
                                L i/L.LIL-w+fi;?
                                          Justice
                                                         Ll,k@/




     I concur in the foregoing dissent of Justice Hunt.

                                              e     ~usti&e
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                              No. 89-548


MICHAEL HAYWORTH, JUDY HAYWORTH
and MICHAEL HAYWORTH, as Guardian
Ad Litem for Matthew Hayworth,
a minor,
             Plaintiffs and Appellants,                            v-
                                                                   i -.
                                                                      -,

                                           1                       U7
        v.                                 1    O R D E - R
                                                       .. .
                                           1
SCHOOL DISTRICT NO. 19, ROSEBUD
COUNTY, MONTANA,
             Defendant and Respondent.


      his Court on July 13, 1990, issued its opinion in the above-
entitled cause. On July 26, 1990, appellants filed herein their
petition for rehearing. It has come to the Court's attention that
the child subject to the lawsuit was incorrectly named.
     THEREFORE, IT IS ORDERED that the following changes in the
final opinion be made:
     1. On page 2, line 3 from the top which originally read:
ll.    . .
        to provide a safe environment for their two children,
Michael and    ...    should be changed to now read: l1       . to  ..
provide a safe environment for their two children Matthew and              ..
  11


         On page 2, beginning with the fourth full paragraph which
        2.
originally read: "Michael Hayworth was a student at ~olstrip~ i g h
School in ~olstrip,  Montana. Apparently, ~ichaelhad a hard time
getting along with a number of his fellow students.           ..
                                                             should
be changed to now read: "Matthew Hayworth was a student at ~olstrip
High School in Colstrip, Montana. Ap~arentlv,the relationship of
other students with Matthew was difficult.     ..11
     3.    On page 2, last sentence which originally read: "Michael
and ~ e i d i           ...
             transferred to        l1 should now read: IfMatthew and
Heidi transferred to  ...     11

     The appellantst petition for rehearing and the respondentts
response to the petition having been considered by this Court,
     IT IS FURTHER ORDERED:
     4. That the petition for rehearing is hereby denied.
     5. The Clerk is directed to mail a true copy hereof to all
counsel of record.
                      (rg
     DATED t h i s a w a y of August, 1990.




                                                Justices


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