No. 13605
I N THE SUPREME COURT O F T H E S T A T E O F MONTANA
S T A T E e x r e l . DEPARTMENT O F J U S T I C E O F
T H E S T A T E O F MONTANA, t h e HONORABLE ROBERT
L . WOODAHL, ATTORNEY GENERAL O F T H E S T A T E
O F MONTANA; and t h e S T A T E O F MOP,JTANA,
Relators,
-vs-
T H E D I S T R I C T COURT O F T H E E I G H T H J U D I C I A L
D I S T R I C T OF THE STATE O F I N AND F O R
T H E COUNTY O F CASCADE, and t h e HON. TRUP.!lAN G.
BRADFORQ J u d g e t h e r e o f ,
Respondents.
No. 13606
S T A T E ex r e l . DEPARTMENT O F J U S T I C E O F
T H E S T A T E O F MONTANA, t h e HONORABLE ROBERT
L . WOODABL, ATTORNEY GENERAL O F T H E S T A T E
O F MONTANA; and t h e S T A T E O F MONTANA,
Relators,
-vs-
T H E D I S T R I C T COURT O F T H E T H I R D J U D I C I A L D I S T R I C T
O F T H E S T A T E O F MONTANA, I N AND F O R T H E COUNTY O F
DEER LODGE and t h e HON. ROBERT J . BOYD, J U D G E
presiding.
Respondents.
O R I G I N A L PROCEEDING :
C o u n s e l of R e c o r d :
For R e l a t o r s :
G a r l i n g t o n , L o h n and R o b i n s o n , M i s s o u l a , M o n t a n a
G a r y G r a h a m argued and S h e r m a n V. L o h n a r g u e d ,
Missoula, Montana
For R e s p o n d e n t s :
S m i t h , E m m o n s , B a i l l i e and W a l s h , G r e a t F a l l s ,
Montana
R o b e r t J. Emmons argued, G r e a t F a l l s , M o n t a n a
Submitted: December 6, 1976
Filed: -
D F 2~ 575
TliOiviAS J. /;;:~tizy
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Mr. C h i e f J u s t i c e James T. H a r r i s o n d e l i v e r e d t h e O p i n i o n o f
t h e Court.
These two o r i g i n a l p r o c e e d i n g s w e r e c o n s o l i d a t e d by
o r d e r o f t h i s C o u r t d a t e d November 1 5 , 1976. They p r e s e n t t h e
same issue f o r our resolution: Can t h e A t t o r n e y G e n e r a l , t h e
Department o f J u s t i c e , o r t h e S t a t e o f Montana b e s u e d f o r
m a l i c i o u s p r o s e c u t i o n i n a c i v i l a c t i o n f o r damages?
On J u l y 30, 1974, r e l a t o r s f i l e d a n i n f o r m a t i o n c h a r g -
i n g G l o r i a Eusek Carden w i t h o n e c o u n t o f g r a n d l a r c e n y and
two c o u n t s o f f o r g e r y i n v o l v i n g workmen's c o m p e n s a t i o n c l a i m s .
T h i s i n f o r m a t i o n was d i s m i s s e d and r e p l a c e d w i t h a s e c o n d i n -
f o r m a t i o n c h a r g i n g Carden w i t h o n e c o u n t o f g r a n d l a r c e n y and
only one count of forgery. The o t h e r f o r g e r y c o u n t c o n t a i n e d
i n t h e f i r s t information w a s not r e f i l e d . A f t e r m o t i o n by
Carden, t h e g r a n d l a r c e n y c o u n t was d i s m i s s e d by t h e d i s t r i c t
c o u r t f o r l a c k of probable cause. The r e m a i n i n g c o u n t o f f o r -
g e r y was d i s m i s s e d by t h e d i s t r i c t c o u r t i n t h e i n t e r e s t o f
j u s t i c e upon m o t i o n by r e l a t o r s .
On J u l y 30, 1976, Carden f i l e d a c o m p l a i n t a g a i n s t
r e l a t o r s i n t h e d i s t r i c t c o u r t i n Cascade County. Carden's
complaint a l l e g e d t h a t i n f i l i n g t h e c r i m i n a l charges a g a i n s t
her, r e l a t o r s acted maliciously, negligently, without probable
c a u s e , and i n v i o l a t i o n o f h e r c i v i l r i g h t s . I n r e s p o n s e , re-
l a t o r s f i l e d a m o t i o n t o d i s m i s s t h e c o m p l a i n t a r g u i n g , among
o t h e r t h i n g s , t h a t t h e c l a i m a g a i n s t them was b a r r e d by t h e
d o c t r i n e o f p r o s e c u t o r i a l immunity. Respondent d i s t r i c t c o u r t
i n Cascade County h e a r d a r g u m e n t s and d e n i e d t h e m o t i o n on
November 1 0 , 1976.
On August 2 , 1 9 7 6 , F r a n k P r e i t e f i l e d a s i m i l a r com-
p l a i n t a g a i n s t r e l a t o r s i n t h e d i s t r i c t c o u r t i n D e e r Lodge
County. This complaint a l l e g e d t h a t r e l a t o r s acted maliciously,
n e g l i g e n t l y , w i t h o u t p r o b a b l e c a u s e , and i n v i o l a t i o n o f P r e i t e ' s
civil rights by filing an information on July 31, 1974, charg-
ing him with three counts of grand larceny and one count of
forgery involving workmen's compensation claims. Further dam-
ages were sought because of relatorst efforts to have the
charges dismissed and refiled in another county. Relators
filed a motion to dismiss Preitets complaint which was denied
the respondent district court in Deer Lodge County on Octo-
ber 14, 1976.
Relators appeared - parte before this Court on November
ex
15, 1976, seeking a writ of supervisory control or other appro-
priate writ directing the dismissal of the Carden and Preite
complaints. An adversary hearing was ordered and held before
this Court on December 6, 1976.
Relators argue that a prosecuting attorney is a quasi-
judicial officer who enjoys absolute immunity from civil lia-
bility for conduct within the scope of his duties. They contend
it is in the public interest to allow a prosecutor to speak and
act freely and fearlessly in enforcing the criminal laws and
that he will become intimidated if he must calculate the likeli-
hood of a civil suit whenever he files criminal charges. In
Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L ed 2d 128
(1976), the United States Supreme Court said:
"The common-law immunity of a prosecutor is
based upon the same considerations that under-
lie the common-law immunities of judges and
grand jurors acting within the scope of their
duties. These include concern that harassment
by unfounded litigation would cause a deflec-
tion of the prosecutor's energies from his
public duties, and the possibility that he
would shade his decisions instead of exercis-
ing the independence of judgment required by
his public trust. * * *"
Respondents, however, do not question the prior existence
of prosecutorial immunity in Montana; but argue that such immunity
has now been abolished. Article 11, Section 18 of the 1972
Montana Constitution, as amended, effective July 1, 1975,
provides:
"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."
Section 83-706.1, R.C.M. 1947, provides in part:
"The state, counties, cities, towns, and all
other local governmental entities shall have no
immunity from suit for injury to a person or
property. This provision shall apply only to
claims for relief and causes of action arising
after July 1, 1973. * * * "
Section 82-4310, R.C.M. 1947, of the Montana Comprehensive State
Insurance Plan and Tort Claims Act provides:
"Every governmental entity is subject to lia-
bility for its torts and those of its employees
acting within the scope of their employment or
duties whether arising out of a governmental or
proprietary function."
Respondents argue from these authorities that all forms of im-
munity have been eliminated. They point out that the definition
of "personal injury" in section 82-4302, R.C.M. 1947, of the
Montana Comprehensive State Insurance Plan and Tort Claims Act
includes injury resulting from vmalicious prosecution"; that
the definition of "claim" includes negligent acts or ommissions;
and that the definition of "employee" includes elected officials.
In No11 and Kenneady v. Bozeman, 166 Mont. 504, 505,
534 P.2d 880, we referred to Article 11, Section 18, 1972
Montana Constitution and stated that the concept of "sovereign
immunity" was abolished. Respondents' argument would have merit
if sovereign immunity and prosecutorial immunity were merely two
different terms used to describe the same thing. That, how-
ever, is not the case. They are different concepts and are
supported by different considerations of public policy. Article
11, Section 18, 1972 Montana Constitution did not abolish prose-
cutorial immunity. When a prosecutor acts within the scope of
his duties by filing and maintaining criminal charges he is
absolutely immune from civil liability, regardless of negli-
gence, or lack of probable cause. Our holding is not affected
by the Montana Comprehensive State Insurance Plan and Tort
Claims Act or section 83-706.1, R.C.M. 1947. In Storch v.
Board of Dir. of East. Mont. Reg. Five M.H.C., Mont. I
545 P.2d 644, 646, 33 St.Rep. 102, 104, we said:
"It is an established general principle that
any statutory waiver of a state's immunity from
suit is to be strictly construed. * * * "
The statutes cited by respondents do not specifically refer to
prosecutorial immunity and in light of Storch we cannot imply
the existence of such abolishment.
Respondents argue further that even if the attorney
general as prosecutor is protected from suit, the doctrine of
prosecutorial immunity does not extend to the Department of Jus-
tice and the State of Montana. A similar argument was disposed
of in Creelman v. Svenning, 67 Wash.2d 882, 410 P.2d 606, 608:
"The public policy which requires immunity for
the prosecuting attorney, also requires immunity
for both the state and the county for acts of
judicial and quasi-judicial officers in the per-
formance of the duties which rest upon them;
otherwise, the objectives sought by immunity to
the individual officers would be seriously im-
paired or destroyed. If the prosecutor must
weigh the possibilities of precipitating tort
litigation involving the county and the state
against his action in any criminal case, his
freedom and independence in proceeding with
criminal prosecutions will be at an end. The
public advantage of free, independent, and un-
trammeled action by the prosecuting attorney
outweighs the disadvantage to the private citizen
in the rare instance where he might otherwise
have an action against the county and state, either
or both."
The doctrine must encompass the state and its agencies, as well
as the prosecutor, or its efficacy will be lost.
We note that this is a proper case for the exercise of
our original jurisdiction. In State ex rel. City of Helena v.
District Court, 167 Mont. 157, 536 P.2d 1182, 1185, 32 St.Rep.
581, we said:
" * * * a writ of supervisory control is proper
here as the sole means by which petitioner can
avoid the substantial prejudice of being forced
to defend a suit where, as a matter of law, lia-
bility cannot be established."
Relators cannot appeal from denial of a motion to dismiss a
complaint and as liability cannot be established as a matter
of law they face substantial prejudice in defending both of
these actions unless relief is granted.
This opinion will constitute a writ of supervisory
control for the guidance o
, . W concur:
-,e /
/ / I
Chief Justice
Justices y