Brunsvold v. State

No. 90-277

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

MILTON D . BRUNSVOLD ,
Plaintiff and Appellant,

STATE OF MONTANA, THE MONTANA
DEPARTMENT OF INSTITUTIONS,
HENRY RISLEY, JAMES BENNETT,
Probation Officer,
Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Leonard J. Haxby; Daniel R. Sweeney, Butte, Montana
For ~espondent:
Hon. Marc Racicot, Attorney General, Helena,
Montana; Norman C. Peterson, Assistant Attorney
General, Helena, Montana

Submitted on Briefs: May 23, 1991
Decided: October 31, 1991
Filed:
 b

~ustgce~a'rlaM. Gray delivered the Opinion of the Court.

Milton D. Brunsvold appeals from a Decision and Order of the
First Judicial District Court, Lewis and Clark County, granting
summary judgment in favor of all defendants in his suit for damages
alleging wrongful incarceration in the Montana State Prison. We
affirm in part and reverse in part.
On March 8, 1978, the Richland County ~istrictCourt convicted
appellant Milton D. Brunsvold (Brunsvold) on a guilty plea to a
felony charge of issuing bad checks. Brunsvold was granted a
deferred sentence for a period of three years and placed on
probation. The court attached certain conditions to the deferred
sentence.
On January 2, 1980, based on violations of conditions of
probation, the District Court revoked Brunsvold's deferred sentence
and sentenced him to three years in prison with execution of the
entire three-year sentence conditionally suspended. When Brunsvold
again failed to abide by the conditions, the court revoked his
suspended sentence on August 27, 1980. He was sentenced to three
years in prison, with two years suspended; he began serving his
sentence on September 12, 1980, and was discharged from the Montana
State Prison on May 12, 1981.
On the day he was discharged, Brunsvold requested permission
to travel to Idaho. His probation officer granted Brunsvold's
request under the condition that Brunsvold return to Montana on May
27, 1981. Thereafter, James Bennett, a probation officer of
Montana's Department of Institutions, noted that Brunsvold had not
returned as ordered and also had failed to contact any parole or
2
 1

probakion bfficer since he left the State. Based on these facts,
Bennett determined that Brunsvold had again violated the conditions
of his suspended sentence. Thereafter, on June 2, 1982, Bennett
filed a Report of Violation recommending a hearing regarding
Brunsvoldts violation of conditions and revocation of the two-year
suspended sentence. In the report, Bennett stated:
[I]n reference to the recent Miller/Blackerby rulings,
which requires good time be given while on a suspended
sentence, this officer has computed this subject ' s
discharge date as at approximately July 25, 1982.
Bennett was referring to two unpublished cases, Miller v. State
(1982), No. 81-565 and State v. Gray (1982), No. 82-164, in which we
directed the Department of Institutions to credit good time
allowances to sentences where the defendants were on probation while
serving a suspended or deferred sentence.
The county attorney subsequently filed a petition to revoke
Brunsvoldtssuspended sentence and an information charging Brunsvold
with bail jumping. Brunsvoldts affidavit states that he tried
unsuccessfully to contact Bennett while in jail awaiting the
revocation hearing; he wanted to tell Bennett that he believed he
was being held improperly because his suspended sentence had been
discharged. Under a plea bargain agreement and on advice of counsel,
appellant pled guilty to the bail jumping charge and did not resist
the petition to revoke his suspended sentence. On March 2, 1983, the
District Court revoked Brunsvoldtssuspended sentence and resentenced
him to two years in prison. Brunsvold was imprisoned on March 17,
1983.
After arriving at the prison, Brunsvold states he tried
unsuccessfully to communicate the information concerning his alleged
 f

improper ihcarceration to Warden Henry Risley. In July of 1983,
Brunsvold filed a Petition for a Writ of Habeas Corpus on the grounds
that he had discharged all of his sentences, based on accrued but
uncredited good time, prior to the March 2, 1983 revocation hearing.
On September 1, 1983, the Powell County District Court heard
testimony on Brunsvold's petition. The transcript of the Habeas
Corpus hearing reveals that Bennett's good time calculations were
incorrect; indeed, based on accrued good time, Brunsvold's entire
suspended sentence had expired not only prior to the time the
Richland County District Court revoked it, but prior to the time the
petition to revoke was filed. Based on this testimony, the court
ordered Brunsvold's immediate release. On December 14, 1984,
following his release, Brunsvold filed a civil suit alleging wrongful
incarceration. He named as defendants the State of Montana, the
Department of Institutions, Warden Henry Risley of the Montana State
Prison and probation officer James Bennett, who incorrectly
calculated his good time credits. The District Court granted
defendants' motion for summary judgment on the basis of 5 2-9-112,
MCA, the judicial immunity statute, and this Court's decision in
Knutson v. State (1984), 211 Mont. 126, 683 P.2d 488.
Brunsvold appeals from the grant of summary judgment. The sole
issue we address, since it was the dispositive issue in the District
Court's Decision and Order, is the following:
Did the District Court err in holding that each of the named
defendants is entitled to immunity as a matter of law under 5 2-9-
112, MCA?
Brunsvold argues on appeal that the identity and acts of the
named defendants herein are not "on all fours" with Knutson, and that
nothing ii 5 2-9-112, MCA, or its legislative history suggests an
i
intention to apply judicial immunity to probation officers and prison
officials. The defendants contend that Knutson extends judicial
immunity to who participate in any way in judicial acts. It is
clear that the ~istrictCourt felt compelled by Knutson to grant
summary judgment to all of the defendants herein on the basis of
their participation in the judicial act of sentencing. In Knutson,
we said clearly that sentencing is a judicial act. Knutson, 211
Mont. at 128, 683 P.2d at 490. We also said that the immunity
statute protects !!any governmental agency involved in the judicial
act of sentencing." Knutson, 211 Mont. at 129, 683 P.2d at 490.
Perhaps understandably, the District Court concluded that Knutson was
controlling as to all defendants herein.
The judicial immunity statute, 5 2-9-112, MCA, must be
construed and applied as to each defendant. The starting points, of
course, must be the language of the statute and, if appropriate, the
legislative intent behind it; but a brief discussion of the history
of the principle of judicial immunity may help set the stage for the
appropriate application of the statute to the facts in this case and
such clarification of Knutson as may be necessary.
Judicial immunity is essentially a common law principle
existing as early as 1354 (Book of Assizes, 27 Edw. 111, pl. 18).
It became a well recognized rule after the decision in Floyd and
Barker, 12 Co. Rep. 23, 77 Eng. Rep. 1305 (1608), and was recognized
in this country as early as 1868. Randall v. Brigham (1868), 74 U.S.
(7 Wall.) 523, 19 L.Ed. 285. Simply stated, the common law rule is
that judges are not liable in a civil action for damages for judicial
acts. The policy rationale for the rule was, and is, to assure that
5
 c

judge; ex&cise their judicial functions with independence and
without fear of consequence.
As a general rule, the 1972 Montana Constitution abrogated the
doctrine of sovereign immunity. It also provided that immunity from
suit could be established only by a two-thirds vote of each house of
the legislature. Art. 11, Sec. 18, 1972 Mont. Const. The
legislature so acted in 1977, passing several immunity statutes;
among them was 5 2-9-112, MCA, the judicial immunity statute at issue
herein.
The legislative history of 1 2-9-112, MCA, provides no concrete
assistance in ascertaining the scope and parameters of judicial
immunity intended by the legislature. In any event, the language
used by the legislature is clear and unambiguous and its application
to the specific facts before us is determinative of the issue on
appeal.
It is clear that in order to fall within the judicial immunity
shield, the State and the Department must be sued Itfor acts or
omissions of the judiciaryItt
while Risley and Bennett each must be
a ttmember,officer, or agentttof the judiciary discharging Itan
official duty associated with judicial actions of the court.It
Section 2-9-112, MCA. Thus, the relationship of each of the
defendants to the court in performing the functions or activities
for which claims have been asserted against them must be examined.
To begin at the beginning: It is clear that the "determination
and imposition of sentence are the exclusive duty of the courttt
(§ 46-17-301 (4), MCA) and, thus, that the court itself is not liable
for the judicial act of sentencing. Section 2-9-112(2), MCA.
Brunsvold has not asserted such liability. The statute is also clear
6
 I

that '"the 'state and other governmental entities are immune from suit
for acts or omissions of the judiciary." Section 2-9-112(1), MCA.
Thus, to the extent that Brunsvold's claims against the State and the
Department arise solely from their actions in implementing the
judicial act of sentencing by incarcerating Brunsvold, those entities
are entitled to judicial immunity. As to these defendants and the
referenced actions of each, Knutson is controlling.
As to defendants Risley and Bennett, it is clear that neither
is a member of the judiciary; nor are they officers of the court,
since each is an employee of the executive branch. The question,
then, is whether either was an agent of the court in this factual
setting.
It is clear that Risley was an agent of the court in accepting
Brunsvold into the Montana State Prison. He acted in direct
obedience to, and discharge of, the court's sentencing order. Thus,
he was an agent of the judiciary discharging "an official duty
associated with judicial actions of the court. Section 2-9-112 ( 2 ) ,
MCA. As such, and to that extent, we affirm the District Court's
grant of summary judgment in Risley's favor.
Bennett's relationship to the court on the facts of this case
differs significantly from that of Risley, and it is here that we
must draw a necessary line in construing the judicial immunity
statute. Bennett performed an administrative or ministerial task in
calculating Brunsvold.'~
good time credits. He did not do so at the
direction of the court which ultimately ordered Brunsvold's
incarceration, but as a routine part of his daily job requirements.
Under this factual situation, Bennett was not so intimately
associated with a judicial act as to be an "agent1'of the judiciary
7
 5 *
discharging "an official duty associated with judicial actions of
the courtn under S 2-9-112(2), MCA. As such, he was not entitled to
judicial immunity and the ~istrictCourt erroneously granted summary
judgment in his favor. It follows logically that, to the extent any
part of the appellant's claims against the State and the Department
are based on their respective liability for the torts or other wrongs
of their employees, summary judgment also was erroneously granted in
their favor.
A strict construction of the statute simply does not allow an
expansion of judicial immunity to cover the factual situation before
this Court with regard to the particular act by defendant Bennett.
It is true that such an expansion would create a bright, clear line;
it would simplify the application of the judicial immunity statute
by extending its coverage, at least by implication, to any act of any
employee of any governmental unit or branch who has any contact of
any kind with any judicial act or proceeding. Neither the statute's
language nor its legislative history reflect a legislative intent to
do so.
It is of interest to note, perhaps, that our holding herein is
consistent with results in many jurisdictions. Courts have been
reluctant to expand judicial immunity to cover acts other than those
intimately related to, or amounting to an integral part of, judicial
proceedings. The statutory underpinnings for judicial immunity
differ among the jurisdictions and none mirror precisely the Montana
statute; in addition, the federal courts continue to apply common law
immunity principles. Yet, applying a variety of approaches, many
courts have considered the nature of the act or activity being
performed and its relationship to the judicial function. The federal
8
court's address such cases, brought as § 1983 claims, by utilizing a
functional/qualified immunity approach. See, e.g., Harlow v.
Fitzgerald (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396;
Galvan v. Garmon (5th Cir. 1983), 710 F.2d 214; Ray v. Pickett (8th
Cir. 1984), 734 F.2d 370. This approach also would be applicable in
§ 1983 cases in state courts where state immunity defenses would not
be available. In Florida, where a state statute waives judicial
immunity, courts still apply the common law rule of judicial
immunity, but discretionary governmental functions undergo a
ttplanningtt
versus ttoperationaltt
analysis whereby operational
functions are not entitled to the immunity shield. Berry v. State
(Fla. App. 1981), 400 So.2d 80, rev. denied, 411 So.2d 380 (Fla.
1981) . Under the Kansas Tort Claims Act judicial function exemption,
ttjudicial
functiontt
does not incorporate ministerial tasks. Cook v.
City of Topeka (Kan. 1982), 654 P.2d 953. And, as a final example,
while an Arizona probation officer preparing a presentence report
pursuant to or in aid of court direction is entitled to absolute
judicial immunity, supervisory or administrative actions by a
probation officer not pursuant to such court direction do not qualify
for judicial immunity. Acevedo v. Pima County Adult Probation Dept.
(Ariz. 1984), 690 P.2d 38.
As a final matter, the State has admitted error in the
computation of appellant's good time. The District Court concluded
that liability for wrongful incarceration has been established as a
matter of law as a result of that admission. It is our view that the
ultimate liability of any of the named defendants remains to be
established.
Among other possible issues on remand, therefore, is whether
9
or not thdre were independent intervening causes of appellant's
incarceration. This question of fact will be decided by the trier
of fact on remand, in the event this matter reaches the trial stage.
To summarize our holding in this case, judicial immunity under
§ 2-9-112, MCA, does-not extend to the factual situation involving
defendant Bennett in the case at bar. Therefore, we reverse the
District Court's grant of summary judgment in his favor and in favor
of the State, the Department and Risley insofar as claims against
them are asserted other than for their actions in implementing the
sentencing order, and remand for further proceedings consistent with
this opinion.
Affirmed in part, reversed in part and remanded.

I concur:

District Judge, sitting for
Justice R.C. McDonough
Justice Terry N. Trieweiler specially concurring.
I concur with the reversal of the District Court judgment in
favor of the defendant James Bennett.
To me, the issue presented to this Court is a simple one which
merits little discussion.
The 1972 Mont. Const., art. 11, 5 18, 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.
People in Montana who have been injured by the wrongful acts
of their government have a constitutional right to seek
compensation. Any statute in derogation of a constitutional right
should be strictly construed. 73 Am. Jur.2d Statutes 3 283. If the

legislature has not clearly provided for immunity, this Court has
no business creating immunity. B.M. v. State (1982), 200 Mont. 58,
649 P.2d 425.
Section 2-9-112, MCA, pursuant to which the District Court
dismissed plaintiff's claim against Bennett, does not say anything
about probation officers. It talks about Itactsor omissions of the
judiciary.
Bennett was not a member of the judiciary; he was not employed
by the judiciary; and he was not acting pursuant to a directive
from any member of the judiciary at the times complained of by the
plaintiff.
 Bennett's acts which formed the basis of the plaintiff's
complaint were taken on his own initiative. His conclusions were
provided to the county attorney for the purpose of instigating
sentence revocation proceedings against the plaintiff. Bennett,
who was employed by the executive branch of government, provided
his misinformation to another member of the executive branch of
government.
Therefore, by no stretch of the imagination can Bennett s
conduct be construed as an '!act or omission of the judiciary." Any
assertion to the contrary would be the sheerest form of judicial
legislation.
The dissenters, who have apparently learned little from their
uncharted sojourn to the land of governmental immunity (see,
Peterson v. Great Falls School District (1989), 237 Mont. 376, 773
P.2d 316, and its progeny), wish to replay that debacle under the
guise of judicial immunity. They would have this Court embark on
a whole new body of judicially-created opportunities for public
servants to avoid responsibility for their wrongful, unlawful, or
negligent conduct. Lessons from recent history should not be so
quickly forgotten.

I concur with the foregoing special concurrence of Justice
Trieweiler.
Justice Fred J. Weber dissents as follows:
The judicial immunity statute, § 2-9-112, MCA, in pertinent
part states:
2-9-112. Immunity from suit for judicial acts and
omissions. (1) The state and other governmental units
are immune from suit for acts or omissions of the
judiciary.
(2) A member, officer, or agent of the judiciary is
immune from suit for damages arising from his lawful
discharge of an official duty associated with judicial
actions of the court.
...
The majority opinion is primarily devoted to a discussion of the
immunity of Warden Risley (Risley) of Montana State Prison and
Probation Officer Bennett (Bennett). The majority concludes that
Risley was an agent of the court in accepting Brunsvold into
Montana State Prison because he acted in direct obedience to and
discharge of the courtts sentencing order. As a result the
majority concluded that he was an agent of the judiciary under the
above statute and to that extent concluded that Risley was immune.
I agree with that conclusion.
Next the majority distinguished Bennett s relationship to the
court from that of Risley. The majority stated that Bennett
performed an administrative or ministerial task in calculating
Brunsvoldts good time credits; that he did not do so at the
direction of the court which ordered Brunsvoldtsincarceration, but
as a routine part of his daily job requirements. The majority then
reached the conclusion that Bennett was not so intimately
associated with a judicial act as to be an "agenttt the judiciary
of
as statutorily defined. He therefore was found not entitled to
judicial immunity. I disagree with that conclusion.
While it is true that probation and parole officers are a part
of the executive branch of government, it is essential to keep in
mind the statutory relationship established between parole and
probation officers and the court system. As an example, under 5
46-23-1011, MCA, in the event that a district court desires to
change a condition of probation, it is required to give notice to
the probation and parole officer so that he shall be given an
opportunity to present his ideas and recommendations. Section 46-
23-1012, MCA, gives the parole and probation officer the power to
arrest a person on parole or probation without a warrant. Section
46-23-1013, MCA, sets the procedure to be followed after an arrest.
In pertinent part 5 46-23-1013, MCA, provides:
(1) Upon such arrest and detention, the probation
and parole officer shall immediately notify the court
with jurisdiction over such prisoner and shall submit in
writing a report showing in what manner the defendant has
violated the conditions of release. Thereupon, or upon
an arrest by warrant as herein provided, the court shall
cause the defendant to be brought before it without
unnecessary delay for a hearing on the violation charged.
...
(2) If the violation is established, the court may
continue to revoke the probation or suspension of
sentence and may require him to serve the sentence
imposed or any lesser sentence and, if imposition of
sentence was suspended, may impose any sentence which
might originally have been imposed.

The above cited code sections are included in Part 10 - Supervision
of Probationers and Parolees. Note that the statutory requirement
for the parole and probation officer is that when he finds a
violation of probation or parole, he is required to immediately
notify the court and show in what manner that person has violated
the conditions of release. That is the foundation for the
subsequent hearing by the court and its determination whether
revocation should be granted. That procedure was followed in the
present case.
Bennett prepared a Report of Violation dated June 2, 1982, on
the printed form provided by the Department of Institutions. The
form included the following heading and salutation:
STATE OF MONTANA
DEPARTMENT OF INSTITUTIONS
Corrections Division
Bureau of Probation and Parole
REPORT OF VIOLATION
To: Seventh Judicial District Court
Sidney, Montana Date: June 2, 1982
Name: BRUNSVOLD, Milton Dean No. Docket #1249-C,
DOI#A013 490
The foregoing report of probation set forth the details of the
original sentencing, the reports of violations and the factual
determinations by Bennett. It is that Report of Violation which
contains the erroneous calculation which affords the basis for the
suit against Bennett. That report stated as follows:
It should be noted, however, that Mr. John OIHern,
Probation and Parole Agent in Missoula, Montana is now
deceased and in reference to the recent Miller/Blackerby
rulings, which requires good time be given while on a
suspended sentence, this officer has computed this
subjects discharqe date as at ap~roxirnatelv Julv 25,
1982.
In any event, it is this officers opinion that this
subject has disregarded the conditions imposed by the
Court and should be located and returned to the Court of
Jurisdiction for a hearing on this matter and the two (2)
year suspended sentence be revoked. (Emphasis added.)
Clearly Bennett was following the statutory requirements which
apply to his job as a parole and probation officer. Applying the
test used with Warden Risley, it appears that he clearly was
discharging an official duty associated with judicial actions of
the court, as the sole purpose for the Report of Violation is
summed up in the last quoted paragraph where he expresses the
opinion that defendant had disregarded the court imposed conditions
and should be returned to the court for revocation of his two year
sentence. The action of Bennett is more closely related to the
District Court than was true of Warden Risley. The only purpose
for the Report of Violation was to express an opinion which would
result in court action. In contrast, all Risley did was to place
the defendant in prison, and all actions subsequent to that were
under his own administrative control and required no reporting to
the District Court. I conclude that the actions of Parole and
Probation Officer Bennett in submitting the Report of Violation
were clearly actions of an agent of the judiciary discharging an
official duty associated with judicial actions of the court and as
a result that Bennett was immune under 5 2-9-112, MCA.
In addition, the facts of this case bring it within the
holding of this Court in Knutson v. State of Montana (1984), 211
Mont. 126, 683 P.2d 488, where this Court stated:
There is no need for semantics in this case, however.
The immunity statute applies to judicial acts with no
stated limitation. It applies to protect the state and
governmental agencies whenever the judicial power of the
state is put to use in a judicial action. . ..
Knutson argues on appeal that the immunity statute
does not apply here because the Department of
Institutions breached its duty to determine the sood time
 to which he was entitled and to notify the District Court
accordingly. She contends that the District Court in
this case acted only as a vehicle through which the harm
caused by the Department of Institutions affected her.
That argument is a substantial change in theory from her
earlier complaint in this case, yet it avails Knutson
nothing. Sentences are pronounced by courts, not by the
Department of Institutions. Knutson's sentencing was the
result of a judicial act. Further, the immunity statute
protects any sovernmental asency involved in the judicial
act of sentencins. (Emphasis added.) (Citations
omitted. )
Knutson held that a computation of good time by the Department of
Institutions was included as a part of the judicial act of
sentencing. The Court points out that sentences are pronounced by
courts and not by the Department of Institutions--that is of course
applicable here because the sentence ultimately determined was not
pronounced by Bennett but by the district judge. Knutson further
emphasizes that !!the immunity statute protects any governmental
agency involved in the judicial act of sentencing.!! The holding
of Knutson applies here.
I dissent from the majority conclusion that the actions of
Bennett were not entitled to judicial immunity under § 2-9-112,
MCA .

Justice John C. Harrison concurs in the foregoing dissent.
Chief Justice J. A. Turnage dissenting:
I concur in the dissent of Justice Fred J. Weber, and
respectfully state that there are further reasons why the majority
of the Court has erred.
In view of the result the majority has reached subjecting
Probation Officer Bennett to Brunsvold's tort action for damages,
I am more than somewhat puzzled, as I am certain the bench and bar

will be, by that part of the majority opinion which states:
It is clear that Risley was an agent of the court in
accepting Brunsvold into the Montana State Prison. He
acted in direct obedience to, and discharge of, the
court's sentencing order. Thus, he was an agent of the
judiciary discharging "an official duty associated with
judicial actions of the court. Section 2-9-112 (2), MCA.
As such, and to that extent, we affirm the District
Court's grant of summary judgment in Risley's favor.
What about Probation Officer Bennett?
Bennett also was acting Itindirect obedience to, and discharge
of, the court's sentencing order.I1
In sentencing Brunsvold the District Court, upon deferring
imposition of sentence or suspending his sentence, placed condi-
tions upon his release from custody that included the requirement
"that he violate no laws, federal, state, county, or city."
Further, "that he shall be under the jurisdiction of the Department
of Institutions, Division of Adult Probation and Parole."
 From the record in this case, Probation Officer Bennett had to
consider the following Brunsvold chronology, at least until his
July 1983 petition for habeas corpus:
12-23-77 Issuance of bad checks in Montana.
3-8-78 Sentenced to three years (deferred) guilty
plea. Criminal Case #1249-C, 7th Judicial
District.
3-8-79 Violation of conditions of deferred sentence
reported.
11-26-79 Supplemental report of violation of condi-
tions.
1-2-80 Three year deferred sentence revoked. Three
year sentence suspended.
6-27-80 Violation of suspended sentence conditions
reported.
8-27-80 Three year suspended sentence revoked. Given
three year sentence in prison with two years
suspended.
5-12-81 Brunsvold completes one year prison term.
Requests travel permit to Idaho, to return 5-
27-81. Does not return to Montana.
12-26-81 Approximate date of allegation of issuance of
bad checks in Idaho (#I).
3-15-82 Approximate date of allegation of issuance of
bad checks in Idaho (#2).
6-2-82 Jim Bennett, probation officer, writes report
recommending revocation of suspended sentence
in Criminal Case #1249-C. He believes at this
time that Brunsvold will have completed his
suspended sentence on 7-25-82.
6-16-82 Warrant issued for arrest of Brunsvold. $1000
bond set.
Thirty days suspended sentence and contempt
citation for Idaho bad check #2.
Montana arrest warrant served in Idaho. Bruns-
vold is to appear before the Montana Court on
9-25-82.
Brunsvold fails to appear.
One year suspended sentence and restitution
for Idaho bad check #I.
Richland County Attorney files affidavit and
motion for leave to file information on Bail
Jumping charge (Section 45-7-308). #1614.
Arrest warrant issued in Idaho for violating
terms of probation on bad check conviction.
Letter sent to Richland County Attorney from
the Court in Idaho informing them that the
Idaho charge had been closed and the bench
warrant issued for Brunsvold's arrest had been
withdrawn.
Plea bargain agreement filed on charges num-
bering 1249 (Montana bad check) and 1614 (bail
jumping). Brunsvold agrees that he violated
the conditions of his suspended sentence in
#1249, and committed an offense in Idaho.
Brunsvold pleads guilty to bail jumping.
Judgment and sentence in both #I249 and #1614.
Bail jumping gets two year term in prison. To
serve both that and two year suspended sen-
tence concurrently. Credit for serving one
day and designated non-dangerous offender.
Imprisoned.
Petition for Habeas Corpus hearing on grounds
that Brunsvold had discharged all of his
sentences prior to revocation.
Habeas Corpus hearing. Brunsvold released.
 Supervision of Brunsvold as a probationer is clearly a part of
the judicial function, and Probation Officer Bennett, in carrying
out this function, acts as an agent of the judiciary.
Bennett was acting as an agent of the court, as did Warden
Risley in confining Brunsvold. There simply can be no distinction
drawn between the acts of Risley and the acts of Bennett with
relation to such acts being carried out as agents of the judiciary.
In bringing the role of the probation officer into proper
perspective, the following statutes must be recognized:
46-23-1001. Definitions. As used in this part, unless
the context requires otherwise, the following definitions
apply:

(4) ''Probationw means the release by the court without
imprisonment, except as otherwise provided by law, of a
defendant found guilty of a crime upon verdict or plea,
subject to conditions imposed by the court and subject to
the supervision of the department upon direction of the
court. [Emphasis added.]
Further recognition of probation as a part of the judicial
function found the statutes relating the Department
Corrections and Human Services (formerly the Department of
Institutions) :
46-23-1002. Powers of the department. The department
may :

(3) adopt rules for the conduct of persons placed on
parole or probation, except that the department may not
 make anv rule conflictins with . . . conditions of
probation imposed by a court. [Emphasis added.]

46-23-1011. Supervision on probation. (1) The depart-
ment shall supervise persons during their probation
period in accord with the conditions set by a court.
[Emphasis added.]

46-23-1013. Action of court after arrest. (1) Upon such
arrest and detention, the probation and parole officer
shall immediately notify the court with jurisdiction over
such prisoner and shall submit in writing a report
showing in what manner the defendant has violated the
conditions of release. Thereupon, or upon an arrest by
warrant as herein provided, the court shall cause the
defendant to be brought before it without unnecessary
delay for a hearing on the violation charged. The
hearing may be informal or summary.
(2) If the violation is established, the court may
continue to revoke the probation or suspension of
sentence and may require him to serve the sentence
imposed or any lesser sentence and, if imposition of
sentence was suspended, may impose any sentence which
misht orisinally have been imposed.

(3) If it shall appear that he has violated the provi-
sions of his release, whether the time from the issuing
of such warrant to the date of his arrest or any part of
it shall be counted as time served on probation or
suspended sentence shall be determined bv the court.
[Emphasis added.]

Brunsvold, as the chronology noted, received his sentences by
orders of the District Court; when his deferment of sentences and
suspension of sentences were revoked, it was by order and sentence
of the District Court; and, of course, his imprisonment in the
Montana State Prison was by order and sentence of the District
Court. The majority does not question that such were judicial
acts. It was not Bennett that sentenced Brunsvold and caused his
imprisonment in the Montana State Prison; it was the District
Court. The part that Bennett played in that regard was as an agent
of the judiciary.
In holding that Warden Risley is an agent of the court and
Probation Officer Bennett is not an agent of the court the majority
is making a distinction without a difference.
The definition of agency that has been a part of our Code
since 1895 should settle this question:
28-10-101. Definitions of agent and agency. An agent is
one who represents another, called the principal, in
dealings with third persons. Such representation is
called agency.
Both Risley and Bennett certainly represented the court in
dealing with the third person Brunsvold. The fact that both of
their paychecks are written by an executive branch of government
and their appointments made by the executive branch of government
has nothing to do with the fact that they, in their official
capacities and with relation to Brunsvold and others similarly
situated, represent the court in dealing with those third persons
and they therefore are agents of the court.
From information obtained from the Montana Department of
Corrections and Human Services, of which the Court could properly
take judicial notice, there currently are approximately 3,436
individual active probation supervision cases and 592 parole cases
in the State of Montana. There are currently fifty-one adult
probation officers in Montana, and all of these cases are required
to be supervised by adult probation officers as agents of the court
that imposed sentence in each of the cases. If Montana's adult
probation officers are personally subject to civil suit for errors
in presentence or probation reports submitted to the District
Court, whether the error is with or without substance, prejudicial
or not prejudicial to the defendant, it will certainly not make
their difficult task easier.
Based upon § 2-9-112, MCA, and the statutes cited herein, as
well as the precedent of Knutson v. State of Montana (1984), 211
Mont. 126, 683 P.2d 488, the decision of the District Court should
be affirmed.

/-A
chief Justice