No. 93-448
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
BILLIE SMITH, Personal
Representative of the Estate
of ~ i c h a r dA. Smith, deceased,
and on behalf of philana V.
Smith and Estelle M. Smith,
children of the deceased,
Plaintiff and Appellant,
BUTTE-SILVER BOW COUNTY,
a consolidated government,
and the STATE OF MONTANA,
Defendants and Respondents.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas M. Malee, Attorney at Law, Billings,
Montana
For Respondent ~utte-SilverBow County:
John M. Maynard, Marcia D. Morton; Browning,
Kaleczyc, Berry & Hoven, Helena, Montana
For Respondent State of Montana:
James P Harrington, Attorney at Law, Butte,
.
Montana
Submitted on Briefs: February 24, 1994
Decided: July 11, 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
In this appeal, we review orders of the Second Judicial
~istrictCourt, silver Bow County, granting summary judgment on the
basis of prosecutorial immunity to Butte-Silver Bow County (the
County) and the State of Montana (the State), denying leave to
amend a complaint, and dismissing claims due to discovery abuse.
We reverse the summary judgment in favor of the County and affirm
the summary judgment in favor of the State, but on different
grounds than prosecutorial immunity. We also affirm the District
Court's refusal to allow amendment of the complaint and decline to
address its dismissal of claims due to discovery abuse.
In February of 1989, Richard A. Smith (Richard) was arrested,
charged with the robbery of a Town Pump Food Store in Butte,
Montana, and incarcerated at the Butte-Silver Bow County Jail
(County Jail). The following month, he was transferred to Warm
Springs State Hospital (the State Hospital) for a psychiatric
evaluation to determine whether he suffered from a mental disease
or defect and had the capacity to stand trial and to form the
requisite mental state for the offense charged. He escaped and
subsequently was apprehended and returned to the County Jail. On
May 16, the State Hospital sent a report to the Silver Bow County
Attorney (County Attorney), the District Court and Richard's
defense counsel indicating, among other things, that Richard was
competent to stand trial.
Richard was found dead in his cell at the County Jail on May
28, 1989. Although his death was caused by self-inflicted
asphyxiation, it is disputed whether death was intentional or
occurred accidentally during an escape attempt involving a feigned
suicide.
On April 8, 1991, Billie Smith (Smith), Richard's mother,
filed a complaint containing a negligence claim on behalf of
Richard's estate and a wrongful death claim on behalf of his minor
children. She alleged that agents or employees of the County,
knowing from the State Hospital report that Richard was a suicide
risk, negligently failed to take steps to safeguard his life. She
also asserted that the individuals involved were employees or
agents of the State. As the case developed, it became clear that
Smith's claims focused on the failure of the County Attorney to
advise the County Jail of the allegedly lifesaving information in
the report.
In August of 1992, the County and the State filed motions for
partial summary judgment and summary judgment, respectively, on the
basis of prosecutorial immunity. The following month, the County
filed a motion to dismiss Smith's complaint with prejudice under
Rule 37(d), M.R.Civ.P., based on her failure to answer
interrogatories and to supplement discovery requests. Smith
opposed the motions and, in October of 1992, moved to amend her
complaint to add a claim against the State based on the alleged
negligence of employees at the State Hospital.
Following a hearing on the County's motion to dismiss held on
November 4, 1992, the District Court held the motion in abeyance
and directed Smith to respond to discovery requests within thirty
days of the date of the hearing. The court subsequently denied
Smith's motion for leave to amend the complaint and, by separate
order, granted the County's and the State's motions for summary
judgment. The court concluded that prosecutorial immunity
precluded any liability on their part stemming from the County
Attorney's actions.
On December 28, 1992, the County filed a second motion for
dismissal of the complaint with prejudice under subsections (b) and
(d) of Rule 37, M.R.Civ.P. Following a second hearing on the
matter held on April 30, 1993, the District Court dismissed the
complaint without prejudice under Rule 37(b), M.R.Civ.P.
Did the District Court err in granting partial summary judgment and
summary judgment in favor of the County and the State,
respectively?
The District Court determined that the claims against the
County and the State were premised on acts or omissions by the
County Attorney in his prosecutorial capacity. On that basis, it
concluded that both were immune from liability under the doctrine
of prosecutorial immunity and granted summary judgmentaccordingly.
Our standard for reviewing a grant of summary judgment is the
same as that used by the district court. Emery v. Federated Foods
(Mont. 1993), 863 P.2d 426, 431, 50 St.Rep. 1454, 1456. In the
usual case, we determine whether there is an absence of genuine
issues of material fact and whether the moving party is entitled to
judgment as a matter of law. Minnie v. City of Roundup (1993), 257
Mont. 429, 431, 849 P.2d 212, 214. Here, we discern no genuine
issues of fact that are material to the issue of whether the County
and the State are immunized from liability arising from conduct by
the County Attorney. Thus, we focus solely on the court's
conclusion that the County and the State were entitled to judgment
as a matter of law based on prosecutorial immunity. Our review of
legal conclusions is plenary. Steer, Inc. v. Dep't of Revenue
(1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
Smith argues that prosecutorial immunity does not shield the
County and the State from liability because the County Attorney was
acting within an administrative capacity when he failed to notify
the County Jail of Richard's purported suicidal tendency. We
agree.
As quasi-judicial officers, prosecutors enjoy immunity from
civil liability for conduct within the scope of their duties,
allowing the unfettered enforcement of criminal laws. Ronek v.
Gallatin County (1987), 227 Mont. 514, 516, 740 P.2d 1115, 1116.
"The common-law immunity of a prosecutor is based upon
the same considerations that underlie 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
deflection of the prosecutor's energies from his public
duties, and the possibility that he would shade his
decisions instead of exercising the independence of
judgment required by his public trust."
Ronek, 740 P.2d at 1116, quoting Imbler v. Pachtman (1976), 424
U.S. 409, 422-23, 96 S.Ct. 984, 991, 47 L.Ed.2d 128, 139.
Prosecutorial immunity has been extended to counties and the state
for the acts of their quasi-judicial officers. Dep't of Justice v.
District Court (1977), 172 Mont. 88, 92-93, 560 P.2d 1328, 1330;
and Ronek, 740 P.2d at 1116-17.
Prosecutorial immunity, however, does not shield prosecutors
from civil liability for acts or omissions performed in the
course of their employment. We consistently have stated that,
"[wlhen a prosecutor acts within the scope of his duties bv filinq
and maintaininq criminal charges he is absolutely immune from civil
liability, regardless of negligence or lack of probable cause.I'
Denst of Justice, 560 P.2d at 1330: Ronek, 740 P.2d at 1116
(emphasis added). We observe that this approach is similar to that
taken by the United States Supreme Court. In Imbler, 424 U.S. at
430-31, the Supreme Court held that a prosecutor was immune from
civil liability in initiating a prosecution and presenting the
state's case, conduct it deemed "intimately associated with the
judicial phase of the criminal process. I' Thus, we focus on whether
the County Attorney's alleged wrongful conduct was prosecutorial in
nature or, in other words, whether the conduct occurred in the
course of filing and maintaining criminal charges.
Richard was charged with robbery upon his arrest in February
of 1989. The County Attorney's failure to notify the County Jail
of Richard's alleged suicidal tendency occurred more than two
months later in May of 1989 following receipt of the State Hospital
report allegedly containing that information. It is clear that the
conduct of the County Attorney at issue here was not related to his
decision to file, or the actual filing of, the criminal charge
against Richard.
Nor did the County Attorney's failure to act relate to his
decision to continue, or "maintain," the criminal charge against
Richard. The State correctly points out that the County Attorney
received the psychiatric report in connection with Richard's
prosecution during the period the original charge was of record.
The asserted omission by the County Attorney, however, did not
relate to information provided to facilitate Richard's prosecution,
namely, whether Richard suffered from a mental disease or defect
and had the capacity to stand trial and form the requisite mental
state. It involved information purportedly indicating Richard's
severe depression and suicidal tendency, information extraneous to
Richard's prosecution.
By determining that prosecutorial immunity applies only to
actions of county attorneys in the course of filing and maintaining
criminal charges, we properly limit the protection that doctrine
affords to conduct inherent in a county attorney's prosecutorial
function. The County Attorney's conduct at issue here--failure to
notify the County Jail of allegedly lifesaving information--is not
integral to that function. While maintaining the safety of
individuals incarcerated is important to the criminal justice
system, the County Attorney's decisions in that regard are part of
his administrative function. We agree with the Ninth Circuit Court
of Appeals that acts or omissions of a prosecutor involving
conditions of post-arrest confinement are not protected by
prosecutorial immunity because they lack an intimate association
with the prosecutorial phase of the criminal process. Gobel v.
Maricopa County (9th Cir. 1989), 867 F.2d 1201, 1206.
The United States Supreme Court has applied a similar
functional analysis to determine the scope of a prosecutor's
conduct which is covered by absolute immunity. Buckley v.
Fitzsimmons (1993), - U.S. -, 113 S.Ct. 2606, 125 L.Ed.2d 209;
Burns v. Reed (lggl), 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d
547. Under that approach, the nature of the function performed is
the determinative factor, rather than the identity of the actor who
performed it. Bucklev, 113 S.Ct. at 2613. Only the prosecutor's
conduct having a function closely associated with the judicial
phase of the criminal process was entitled to absolute immunity.
Bucklev, 113 S.Ct. at 2615-18; Burns, 111 S.Ct. at 1942-44.
Indeed, the Supreme Court expressly stated that a prosecutor was
not immune from liability for administrative duties. Buckley, 113
S.Ct. at 2615.
In Burns, the Supreme Court also clarified that absolute
immunity addressed the concern that the judicial Process might be
affected by vexatious litigation. On that basis, it determined
that absolute immunity was justified only for conduct 'Iconnected
with the prosecutor's role in judicial proceedings.'* Burns, 111
S.Ct. at 1943. Thus, the rationale underlying prosecutorial
immunity does not justify shielding a prosecutor from exposure to
liability for administrative decisions such as those in the case
before us. While a lawsuit arising from the breach of a duty to
prevent the suicide of an individual held in custody would
undoubtedly divert the County Attorney's attention, the fear of
such litigation would not affect his independent judgment in filing
and maintaining criminal charges.
Because the County Attorney was not acting within his
prosecutorial capacity when he failed to advise the County Jail of
information allegedly indicating Richard's suicidal tendency, we
hold that the District Court erred in concluding that the County
and the State were entitled to prosecutorial immunity. We reverse,
however, only the District Court's grant of summary judgment in
favor of the County. The State contends that it is entitled to
summary judgment on other grounds and we agree.
The State argued before the District Court that it was not
liable for conduct of the County Attorney because he was not an
employee of the State, relying on a recent opinion issued by the
Attorney General. The District Court did not address that issue,
granting summary judgment solely on the basis of prosecutorial
immunity. We will uphold the result reached by the district court,
if correct, regardless of the reasons given. Stansbury v. Lin
(1993), 257 Mont. 245, 248, 848 P.2d 509, 511.
On appeal, Smith effectively concedes that the Attorney
General has determined that county attorneys are not employees of
the State with regard to their administrative conduct and does not
refute the State's argument. In light of our determination that
the County Attorney was acting within his administrative capacity
and Smith's concession, we conclude that the State is entitled to
judgment as a matter of law and affirm the court's grant of summary
judgment in its favor.
Did the District court abuse its discretion in denying Smith's
motion to amend the complaint?
The District Court refused to allow Smith to add the following
paragraph to her negligence and wrongful death claims:
Montana State Hospital, and [sic] agent or employee of
Defendant State of Montana, failed to notify the Butte-
Silver Bow County jail staff that Mr. Smith was a suicide
risk, and failed to continue the deceased's medication at
the Butte-Silver Bow county jail. Said conduct was a
direct and proximate cause of the decedent's death.
The grant or denial of leave to amend pleadings is within the
discretion of the district court and will not be reversed absent an
abuse of that discretion. Priest v. Taylor (1987), 227 Mont. 370,
As its first basis for denying Smith's motion to amend, the
District Court determined that amendment would be unduly
prejudicial to the State. We agree. The amendment alleges
negligence based on the failure by State Hospital employees to
continue Richard's medication. Such a claim may well be one for
medical malpractice; in any event, it is a totally new theory not
included in the original complaint and based on acts or omissions
by persons not parties to the original action. Similarly, the
proposed claim against the State based on State Hospital employees1
failure to notify jail staff of Smith's alleged suicidal tendency,
while essentially the same theory as that originally asserted
against the County and the State, was based on acts or omissions by
persons not parties to the original action. In order to defend
against these claims, the State would be required to expend a
considerable amount of money and time to conduct additional discovery.
Moreover, Smith possessed the basic information needed to
advance a negligence claim premised on the State Hospital's failure
to alert the County Jail of Richard's suicidal tendency at the time
she filed the original complaint. She offers no explanation for
her failure to plead this claim until one and one-half years later.
Rule 15(a), M.R.Civ.P., allows parties to amend pleadings by
obtaining leave of the district court and requires the court to
grant leave "when justice so requires." Although the rule has been
liberally interpreted, a district court is justified in refusing
amendment because of undue prejudice to the opposing party, undue
delay, and dilatory tactics by the moving party. Lindey's v.
Professional Consultants (1990), 244 Mont. 238, 242, 797 P.2d 920,
923. The prejudice sufficient to support a court's denial of a
motion to amend can be of precisely the kind faced by the State
here--added time, energy and money in resolving the case due to
additional discovery and time to determine the sufficiency of the
claims alleged in the amended complaint. Lindev's, 797 P.2d at
923. We conclude that the District Court did not abuse its
discretion in refusing to allow amendment of Smith's complaint
under Rule 15(a), M.R.Civ.P.
As a second basis for denying Smith's motion to amend, the
District Court determined that the amendment did not relate back to
the date of the filing of the original complaint and, as a result,
that the new negligence and wrongful death claims were barred by
the statutes of limitations. The amendment would relate back to
the filing of the original complaint if the claims contained in the
amendment arose out of the *'conduct, transaction, or occurrences1
set forth or attempted to be set forth in the original pleading.
Rule 15(c), M.R.Civ.P. We previously have focused on whether the
amended and original pleading are based on the same set of
operative facts to determine whether they arise from the same
conduct, transaction or occurrence. Sooy v. Petrolane Steel Gas,
Inc. (1985), 218 Mont. 418, 422-23, 708 P.2d 1014, 1017.
It is clear that the original complaint and proposed amendment
do not share the same operative facts. First, they involve acts or
omissions by different individuals. The original complaint focuses
on inaction by agents or employees of the County. The proposed
amendment alleges omissions by employees of the State Hospital.
Furthermore, the alleged conduct of State Hospital employees
and County personnel is not the same. The proposed amendment
alleges negligent failure to continue Richard's medication
following his escape fromthe State Hospital and reincarceration at
the County Jail, an occurrence not at issue in the original
complaint. In addition, while the proposed amendment and original
complaint both allege a failure to notify the County Jail that
Richard was suicidal, the omissions were made by different
individuals and occurred on different dates. State Hospital
personnel learned of Richard's purported depression and suicidal
tendency during the psychiatric examination which took place
between his March 30 admission and May 6 escape. Thus, their
failure to notify the County Jail of Richard's purported depression
and suicidal tendency would begin on May 11, when he was
recaptured. The County Attorney received the State Hospital report
on March 17; any omission on his part occurred on or after that
date.
We conclude that the District Court did not abuse its
discretion in determining that Smith's proposed amendment did not
arise from the same wconduct, transaction, or occurrencel' as the
original complaint. Because the amendment did not date back to the
filing of the original complaint under Rule 15(c), M.R.Civ.P., the
District Court properly determined that Smith could not amend the
complaint to add additional negligence and wrongful death claims
because the statutes of limitations for those causes of action had
expired.
We hold that the District Court did not abuse its discretion
in denying Smith's motion to amend the complaint.
Did the District Court err in dismissing Smith's action under Rule
37, M.R.Civ.P.?
As set forth above, the County moved to dismiss Smith's claims
in September of 1992, based on her alleged failure to answer
interrogatories and supplement discovery requests. After a hearing
held on November 4, the District Court held the motion in abeyance
and ordered Smith to submit supplemental discovery responses within
thirty days of the hearing. Shortly thereafter, the County moved
for a psychological examination of Richard's children. The court
granted the motion and ordered the examination.
The County filed a second motion to dismiss with prejudice in
December of 1992, asserting that Smith continued to abuse discovery
13
and had obstructed the psychological examination. ~ollowing a
hearing on April 30, 1993, the District Court dismissed Smith's
complaint without prejudice pursuant to Rule 37 (b), M.R.Civ.P. The
court determined that Smith had failed to comply with its orders
compelling discovery and requiring a psychological examination of
Richard's children.
The parties advance numerous and varied assertions as to the
arguments and evidence presented at the November 4 and April 30
hearings. Smith asserts that the District Court improperly
overlooked evidence indicating her compliance with the court's
orders regarding discovery and the examination of the children.
She specifically argues that the County obtained all requested
information regarding tax records, medical records and expert
witnesses and had, itself, abused discovery by withholding
information and obtaining confidential records beyond the scope of
discovery. The County disagrees in every respect.
While the hearings apparently were reported by a court
reporter, transcripts of the proceedings were not provided to this
Court on appeal. Nor does the record contain formal Minute Entries
recording the highlights of the hearings. The Register of Action
accompanying the record on appeal indicates the hearing dates but
sheds little light on the substance of the hearings. Under these
circumstances, we cannot reconstruct the record before the District
Court to determine which party's arguments are supported by the
record.
In addition, we are unable to understand or adequately
interpret the ~istrictCourt's dismissal of Smith's action without
prejudice in the context of this case. The County sought the
sanction of dismissal with prejudice as authorized by Rule 37(b),
M.R.Civ.P., for certain discovery-related acts or omissions. A
sanction of dismissal without prejudice is, at best, an anomaly;
indeed, it appears to controvert the District Court's observations
concerning Smith's counsel's discovery abuses and defiance of its
orders.
Moreover, it appears that the District Court may have entered
the dismissal without prejudice in order to facilitate Smith's
interest in obtaining this Court's review of earlier rulings. The
court noted her efforts--a premature appeal and an unsuccessful
petition for writ of supervisory control--and stated that its
dismissal without prejudice would facilitate our review of its
previous rulings before a potentially expensive jury trial took
place. We will not condone a trial court's dismissal of an action
without prejudice, in the guise of a sanction, where the intent is
to obtain review of rulings otherwise not appealable under Rule 1,
M.R.App. P.
Because of the state of the record before us on this issue and
the court's dismissal language, we decline to rule on the propriety
of the District Court's dismissal of Smith's complaint pursuant to
Rule 37(b), M.R.Civ.P. We vacate the court's order dismissing the
complaint without precluding the availability of further
proceedings on the issue on remand.
Affirmed in part, reversed in part, vacated in part, and
remanded for further proceedings consistent with this opinion.
We concur:
Chief Justice
Justices
Chief Justice J. A. Turnage, concurring:
I specially concur in the majority opinion. I recognize that
this opinion involves a criminal prosecution and discusses the
county attorney's protection from civil litigation in duties
relating to prosecution of criminal matters as distinguished from
what the majority opinion has held to be an administrative matter.
My concern, however, is that the majority opinion not be read
or understood to exclude the county attorney's protection from
civil litigation in the many duties mandating the county attorney
to institute or defend judicial proceedings in non-criminal
matters.
County attorneys in Montana are required by statute to appear
in court on behalf of the state in a wide variety of non-criminal
matters. A partial list of those duties includes:
defending suits against the county under g 7-4-2711, MCA:
representing veterans in reemployment actions under 5 10-2-
214, MCA;
representing election judges in challenges to electors under
5 13-13-305, MCA;
filing actions to enjoin a public nuisance under g 16-6-313,
MCA ;
prosecuting or defending actions by or against a school
district or community college district under 5 20-1-204,
MCA ;
prosecuting injunction actions against persons unlawfully
practicing as a dentist under g 37-4-328, MCA;
filing abuse, neglect, or dependency petitions under 5 41-3-
401, MCA;
filing petitions for termination of the parent-child
relationship under 5 41-3-607, MCA;
+ filing petitions for civil penalties for health care
facility violations and for long-term health care facility
violations under 5 4 50-5-112 and 52-3-605, MCA;
+ filing petitions for appointment of a guardian of an AFDC
grant for the benefit of children under 5 53-4-243, MCA;
+ filing petitions for involuntary placement of seriously
developmentally disabled persons in residential facilities
under g 53-20-121, MCA, and for commitment of mentally ill
persons under 5 53-21-121, MCA;
+ filing eminent domain proceedings under 5 60-4-104, MCA;
+ representing the State in actions to suspend a license to
operate commercial vehicles under 5 61-8-805, MCA;
+ filing actions to impose civil penalties for air quality
violations under § 75-2-413, MCA, solid waste management
violations under 5 75-10-228, MCA, and hazardous waste
violations under 5 75-10-417, MCA;
+ representing the Department of Commerce in actions by or
against it, including injunctions and mandamus actions under
§ 81-23-406, MCA;
+ filing actions to enforce civil penalties on behalf of the
board of oil and gas conservation under 82-11-150, MCA;
and
+ providing assistance with enforcement of the dam safety act
under 5 85-15-109, MCA.
The rationale for providing county attorneys with immunity
applies equally as to their duties in these non-criminal cases, and
bears repeating:
The common-law immunity of a prosecutor is based upon the
same considerations that underlie 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
deflection of the prosecutorlsenergies from his public
duties, and the possibility that he would shade his
decisions instead of exercising the independence of
judgment required by his public trust.
Imbler v. Pachtman (l976), 424 U.S. 409, 422-23, 96 S.Ct. 984, 991,
The majority opinion must not be read to deny immunity to
county attorneys in fulfilling their statutorily-required duties in
non-criminal matters. Prosecutorial immunity may well apply in
such situations. See e.g., Martin Hodas, East Coast Cinematics v.
Lindsay (S.D. New York l977), 431 F.Supp. 637; Hanson v. Flores
(Iowa 1992), 486 N.W.2d 294. Protecting county attorneys from
harassment by unfounded or vexatious litigation is just as
essential to the functioning of our system of justice in relation
to these non-criminal matters as it is in criminal matters.
I submit that the rationale of the United States Supreme Court
underlying prosecutorial immunity in Imbler as set forth above
clearly supports its adoption in the matters relating to judicial
proceedings that are mandated duties of a county attorney in the
partial list of such duties above listed.
To subject a county attorney to being civilly sued for damages
nearly every time the county attorney is, by law, mandated to
initiate or defend judicial proceedings, which litigation would
occur with the certainty that a shadow follows its substance, would
seriously undermine the performance of a county attorney's duties
without fear or favor to the untold detriment of Montana citizens.
I therefore specially concur with the majority's opinion.
Justice John C. ~arrison'
joins in the foreqoi& special concurrence
of Chief Justice J. A. Turnaqe.
Justice Fred J. Weber dissents as follows:
In the first issue of the majority opinion, the opinion holds
that the County Attorney was not acting within his prosecutorial
capacity when he failed to advise the county jail of information
allegedly indicating Richard's suicidal tendency. The majority
held that the County Attorney was acting within his administrative
capacity and reversed the summary judgment in favor of the County.
I dissent from that conclusion and that holding.
The District Court ordered a psychological evaluation by Warm
Springs State Hospital to determine whether the defendant had the
ability to stand trial. As stated in the report from the State
Hospital, Mr. Smith was admitted to the State Hospital on a court
order for a psychological\psychiatric evaluation to determine if
Mr. Smith suffers from a mental disease or defect; an opinion as to
his capacity to understand the proceedings against him and to
assist in his defense; and an opinion as to his capacity to have
acted purposely or knowingly during the robbery on February 13,
1989, such is an essential element of the robbery offense with
which he is charged. The State Hospital report was signed by a
psychologist and psychiatrist. The report was 14 pages in length,
single spaced. While the details of the report are not before us
as a factual issue, the report in substance concluded that the
defendant appeared competent to understand the charges against him
and to assist in his own defense if he chooses to do so; that his
lack of cooperation would be a conscious decision on his part
rather than the result of mental illness; and that he appeared
20
capable of acting with knowledge and purpose at the time of the
alleged crime. As pointed out in the majority opinion, the
plaintiff's claims focused on the failure of the County Attorney to
advise the County Jail of the allegedly life saving information in
the Report.
In considering the analysis of this issue, we will follow the
order of authority set forth in the majority opinion. The majority
opinion points out that as quasi judicial officers, prosecutors
enjoy immunity from civil liability for conduct within the scope of
their duties, allowingthe unfettered enforcement of criminal laws.
The majority opinion further quotes from Devt. of Justice, 560 P.2d
at 1330, pointing out that we consistently have stated that [wlhen
a prosecutor acts within the scope of his duties bv filina and
maintainina criminal charqes he is absolutely immune from civil
liability, regardless of negligence or lack of probable cause." In
a similar manner, reference is made to Imbler, 424 U.S. at 430-31,
where the Supreme Court held a prosecutor to be immune from civil
liability in initiating a prosecution and presenting the state's
case, conduct it deemed "intimately associated with the judicial
phase of the criminal process.'
In analyzing whether the failure of the County Attorney is
related to the maintaining of criminal charges, the majority
states:
The asserted omission by the County Attorney, however,
did not relate to information provided to facilitate
Richard's prosecution, namely, whether Richard suffered
from a mental disease or defect and had the capacity to
stand trial and form the requisite mental state. It
involved information purportedly indicating Richard's
severe depression and suicidal tendency, information
extraneous to Richard's prosecution.
While we do not have the details of the state report before us, I
conclude the majority is incorrect when it suggests that the
omission by the County Attorney did not relate to information
provided to facilitate the deceased's prosecution. As previously
indicated, the purpose of the extensive report from the State
Hospital was to determine if Mr. Smith suffered from a mental
disease or defect, whether he had the capacity to understand the
proceedings against him and to assist in his defense, and to
determine if he had the capacity to have acted purposely on the
date of the offense. It is clear that the purpose of the report is
to determine if criminal charges could be maintained against the
deceased. Clearly the County Attorney was required to consider
this information in order to determine whether or not to continue
the prosecution. I don't see how any of the information could be
considered extraneous to the prosecution. I conclude that
interpreting the report evaluation clearly was within the scope of
the duties of a prosecutor and was "intimately associated with the
judicial phase of the criminal process." If any aspect of the
report demonstrated an unfitness for trial, the County Attorney
could not prosecute. "A determination by the county attorney to
bring an action is discretionary, and is his duty under the law."
Ronekv. Gallatin County (1987), 227 Mont. 514, 518, 740 P.2d 1115:
cert denied 484 U.S. 962, 108 S.Ct. 1226, 99 L.Ed.2d 426.
In order to make the determination as to the continuance of
the prosecution, the County Attorney had to assess the report in
22
front of him. Interpretation of the report clearly was related to
"maintaining" the criminal action. It is not related to the daily
running of a county attorney 's office. It is impossible to divorce
interpretation of this report from the attendant notification of
jail personnel.
Determining whether the defendant has a mental disease or
defect is an investigative function associated with the charge in
question. "Investigative functions carried out pursuant to the
preparation of a prosecutor's case . . . enjoy absolute immunity. "
Freeman ex rel. the Sanctuary v. Hittle (9th Cir. 1983), 708 F.2d
442, 443. 'IAbsolute prosecutorial immunity attaches to the actions
of a prosecutor if those actions were performed as part of the
prosecutor's preparation of his case, even if they can be
characterized as 'investigative' or ladministrative.l" Demery v.
Kupperman (9th Cir. 1984), 735 F.2d 1139, 1143, cert. denied, 469
U.S. 1127, 105 S.Ct. 810, 83 L.Ed.2d 803. (Emphasis added.) This
consideration reveals the error in the special concurrence's
assessment of the dissent. I do not negate the functional analysis
provided by the concurrence; I simply disagree that the function in
question was "administrative.l8
The majority opinion concludes that the prosecutorial immunity
should be limited to conduct inherent in a county attorney's
prosecutorial function. I agree with that standard, except that I
conclude that the functions here involved were clearly inherent in
that prosecutorial function. The majority opinion concludes that
the failure to notify of alleged life saving information is not
integral to the prosecutorial function but rather is part of the
administrative function of the County Attorney's office.
The majority opinion further refers to Buckley v. Fitzsimmons
(1993), 112 S.Ct. 2615-18, where the United States Supreme Court
concluded that a prosecutor's conduct having a function closely
associated with the judicial phase of the criminal process was
entitled to absolute immunity. This demonstrates my disagreement
with the majority opinion. The majority somehow has arrived at the
conclusion that it is possible to choose some knowledge gained from
the report and call action based on knowledge administrative in
nature. Under Bucklev, the prosecutor's conduct in this case had
a function closely associated with the judicial phase of the
criminal process, namely to determine whether or not Richard was
able to properly stand trial. Clearly the interpretation of the
report was connected to the prosecutor's role in the judicial
proceeding.
I conclude that the consideration, interpretation, and
attendant actions emanating from that lengthy report were clearly
within the scope of the duties of the County Attorney and that the
contentious actions or omissions were intimately associated with
the judicial phase of the criminal process. I further conclude
that interpreting the report is a'intimately connected" to the
duties of the prosecutor. As a result I am unable to see how the
alleged omission can be classed as l'administrative.*l
I would affirm the District Court's holding that the County
Attorney's conduct was prosecutorial in nature because it occurred
in the course of the filing and maintaining of criminal charges.
I would therefore affirm the summary judgment in favor of the
County. I would further join in the majority opinion's affirmance
of the summary judgment in favor of the State and also the
affirmance of the District Court's refusal to allow amendment of
n
the complaint.
Justice James C. Nelson specially concurs.
I concur with the Court's opinion. My concern is with the
Justice Weber's dissent. I submit that the dissent neither
correctly interprets the Court's opinion nor does it accurately
reflect the current state of the law on absolute quasi-judicial
immunity applicable to state prosecutors.
The dissent suggests that any act or omission by a prosecutor
which in any way relates to the filing of or maintaining of a
criminal charge is closely associated with the judicial phase of a
criminal proceeding and is, therefore, entitled to absolute
immunity. That, presently, is not the law, if it ever was.
Moreover, to the extent that the dissent is read to suggest that we
have departed from existing legal concepts defining the scope of or
have diminished the protections afforded by absolute quasi-judicial
immunity traditionally enjoyed by prosecutors, that, too, is wrong.
We have merely applied decades-old controlling legal precedents and
concepts to the facts at issue.
At the outset, it is important to keep in mind what this case
is about. The immunity issue arose because the District Court
granted summary judgment to the County notwithstanding that,
according to the record, the parties conceded that there was a
factual dispute over whether the report did or did not indicate
that Smith was suicidal. The District Court simply concluded that
the factual dispute did not count, because, as a matter of law,
absolute immunity barred plaintiff's claim. It is the District
Court's legal conclusion in that regard that we find in error. The
factual question as to whether the report does or does not indicate
a potentially suicidal defendant remains a question to be decided
by the jury.
The narrow legal question which we address is whether absolute
quasi-judicial immunity attaches to the prosecutor's failure to
pass along to the sheriff allegedly life-saving information
contained in the mental status report from the State Hospital. Our
opinion on that issue does not in any way diminish the application
of absolute quasi-judicial immunity to the county attorney's
decision to request the mental status evaluation in the first place
or to his use of the report in maintaining the criminal prosecution
against the defendant.
The dissent fails to appreciate or acknowledge the very real
and important distinction between, on the one hand, the
prosecutorial function of ordering a mental status report and
evaluating and utilizing that report with regard to determining the
defendant's state of mind at the time of the commission of the
offense and with regard to his present ability to stand trial and
assist in his own defense, and, on the other, the failure to advise
the authority incarcerating the defendant of information contained
in that report which may indicate that the defendant is suicidal
and which, if available to the jailer, may assist him in preventing
that suicide.
While the dissent would have the Court simply ignore that
distinction under the broad-brush rationale that any consideration
or interpretation of the report by the county attorney is
intimately associated with the judicial phase of the criminal
process and intimately connected to his duties as a prosecutor,
current federal case law, binding upon the courts of this State,
compels a decidedly different approach and a much finer analysis
than the dissent is willing to accord this issue.
In determining whether the actions of government prosecutors
fit within the common-law tradition of absolute quasi-judicial
immunity, the United States Supreme Court has, since at least 1976,
applied what is characterized as a 8ffunctional approach" or
analysis.
In Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47
L.Ed.2d 128, the Court first addressed the immunity of state
prosecutors from civil rights suits. Noting that prior immunity
decisions were "predicated upon a considered inquiry into the
immunity historically accorded the relevant official at common law
and the interests behind it," Imbler, 424 U.S. at 421, the Court
held that a state prosecutor had absolute immunity for the
initiation and pursuit of a criminal prosection, including
presentation of the state's case at trial. Imbler, 424 U.S. at
431. The Court's analysis focused on the functions of the
prosecutor that had most often invited common law tort actions,
and, while concluding that prosecutors were entitled to absolute
immunity for conduct flintimately
associated with the judicial phase
of the criminal process," Imbler, 424 U.S. at 430, the Court did
not attempt to describe the line between a prosecutor's acts in
preparing for those functions, some of which were absolutely
immune, and his acts of investigation or "administration," which
were not. Imbler, 424 U.S. at 430, 431.
In State, Etc. v. Dist. Ct., 8th Judicial Dist. (1977), 172
Mont. 88, 560 P.2d 1328, citing Imbler and the principles
underlying the doctrine of quasi-judicial, prosecutorial immunity,
we concluded that the prosecutor and his employer, the Department
of Justice, were absolutely immune from a civil suit alleging that
criminal charges were wrongfully and maliciously filed against the
plaintiffs.
Similarly, in Ronek v. Gallatin County (1987), 227 Mont. 514,
740 P.2d 1115, citing Imbler and Deut. of Justice, we, again,
concluded that absolute immunity barred the plaintiffs' civil suit
for malicious prosecution and civil rights violations filed against
the County and arising out of the prosecutor's filing and then
dismissing criminal charges against the plaintiffs.
In both Dept. of Justice and m , prosecutorial function
the
which invoked the application of absolute quasi-judicial immunity
was the filing and maintaining of criminal charges; in both cases,
the doctrine was correctly applied to protect precisely the type of
prosecutorial conduct which was, historically, and, still is,
protected under the common-law tradition of absolute quasi-judicial
immunity. As in Imbler, in neither case was there any necessity to
distinguish between a prosecutor's acts in preparing for initiating
a prosecution and in presenting the State's case -- functions
historically entitled to absolute quasi-judicial immunity -- and
acts of investigation or administration -- functions which were not
historically entitled to protection of the doctrine.
In Burns v. Reed (1991), 500 U.S. 478, 111 S.Ct. 1934, 114
L.Ed.2d 547, the Court's immunity analysis was, again, driven by
application of the functional approach to the prosecutor's conduct
at issue. In that case the Court concluded that appearing before
a judge and presenting evidence in support of a motion for search
warrant was involved with the prosecutor's '
I 'role as advocate for
the State,' Burns, 500 U.S. at 486, quoting Imbler, 424 U.S. at
431, n.33. Such conduct was a prosecutorial function entitled to
absolute immunity because issuing a search warrant is a judicial
act, and appearance at the probable-cause hearing was "'intimately
associated with the judicial phase of the criminal process.'"
Burns, 500 U.S. at 486, quoting Imbler, 424 U.S. at 430.
On the other hand, the Burns Court held that absolute immunity
did not attach to the prosecutor's giving legal advice to the
police. Burns, 500 U.S. at 496. On that issue, the Court's
analysis is instructive for purposes of our decision in the instant
case. As it did in Imbler, the Court initially focused on the
historical common-law interests underlying absolute immunity and
noted that it could identify no historical nor common-law support
for such an extension of the doctrine. Burns, 500 U.S. at 492.
Next, the Court considered whether the risk of vexatious
litigation would support absolute immunity for giving legal advice.
In that regard it concluded that the purpose of absolute immunity
was to "free the judicial process from the harassment and
intimidation associated with litigation," [citing Forrester v.
white (1988), 484 U.S. 219, 226, 108 S.Ct. 538, 543, 98 L.Ed.2d
5551, and "[tlhat concern, therefore, justifies absolute
prosecutorial immunity only for actions that are connected with the
prosecutor's role in judicial proceedings, not for every
litigation-inducing conduct." Burns, 500 U.S. at 494.
Importantly, the Court rejected the same sort of broad-brush
approach as that offered by the dissent in the instant case. In
Burns the United States argued that giving legal advice is
"...related to a prosecutor's roles in screening cases for
prosecution and in safeguarding the fairness of the criminal
judicial process." Burns, 500 U.S. at 495.
That argument, however, proves too much. Almost any
action by a prosecutor, including his or her direct
participation in purely investigative activity, could be
said to be in some way related to the ultimate decision
whether to prosecute, but we have never indicated that
absolute immunity is that expansive.
Burns, 500 U.S. at 495.
Most recently, in Buckley v. Fitzsimmons (l993), 61 USLW 4713,
113 S.Ct. 2606, 125 L.Ed.2d 209, the Court once again stressed the
necessity to closely analyze claims of absolute prosecutorial
immunity under the functional approach adopted in Imbler and
utilized in Burns. Once again, the Court rejected the broad-brush
analysis of the Court of Appeals which had concluded that the state
prosecutor was entitled to absolute immunity 'I... because the
injuries suffered by petitioner occurred during criminal
proceedings." Buckley, 113 S.Ct. at 2615.
That holding is contrary to the approach we have
consistently followed since Imbler ...
[which] focuses on
the conduct for which immunity is claimed, not on the
harm that the conduct may have caused or the question
whether it was lawful.
Bucklev, 113 S.Ct. 2615.
* * * * *
[A]s the function test of Imbler recognizes, the actions
of a prosecutor are not absolutely immune merely because
they are performed by a prosecutor.
Bucklev, 113 S.Ct. at 2615, quoting Imbler, 424 U.S. at 431.
In Bucklev, using the functional approach, the Court held that
the prosecutor in that case was not entitled to absolute immunity
for alleged misconduct involving investigative and administrative
activities in searching for clues and corroborating evidence for
purposes of determining probable cause, or for alleged false
statements made during the public announcement of a murder
indictment. Buckley, 113 S.Ct. at 2616-2617.
As in Imbler and in Burns, the Court in Bucklev looked to the
functional tie of specific conduct of the prosecutor to the
judicial process and to whether the prosecutor was acting in his
role as advocate for the State and regardless of whether the
conduct at issue might have been integral to the prosecutor's job
and might even have served a vital public function. Bucklev, 113
S.Ct. at 2618.
While the dissent would have us not pick and choose conduct,
that is precisely what the U.S. Supreme Court cases require that we
do. We must focus on whether the & or omission at issue is
entitled to immunity, not whether the prosecutor is immune for
whatever he does in that capacity. As pointed out in Forrester, a
case in which the Court applied the same functional approach to a
32
judicial immunity issue,
[dlifficulties have arisen primarily in attempting to
draw the line between truly judicial acts, for which
immunity is appropriate, and acts that simply happen to
have been done by judges. Here, as in other contexts,
immunity is justified and defined by the functions it
protects and serves, not by the person to whom it
attaches.
Forrester, 484 U.S. at 227. It is the nature of the function
performed, not the identity of the actor who performs it, which
drives immunity analysis. Forrester, 484 U.S. at 229.
Given Imbler, Burns, and Buckley, this Court is, likewise,
compelled to analyze the immunity issue in this case by focusing on
the specific prosecutorial conduct at issue and by then determining
whether such conduct is functionally tied to the judicial process
and involves the prosecutor acting in his role as advocate for the
State in initiating and maintaining the criminal prosecution and
presenting the State's case at trial. In doing so, we must reject
the broad-brush proposed by the dissent, as did the United States
Supreme Court in the three federal cases cited.
Using that approach, here, and focusing, as we must, on the
specific act or omission at issue, we have correctly determined
that, while the prosecutorial function of ordering a mental status
report and evaluating and utilizing that report with regard to
determining the defendant's state of mind at the time of the
commission of the offense and with regard to his present ability to
stand trial and assist in his own defense is functionally tied to
the judicial process and involves the advocacy role of the
prosecutor in initiating and maintaining the criminal prosecution,
the alleged failure to advise the authority incarcerating the
defendant of information in that report which might indicate that
the defendant is suicidal does not serve that function nor meet
that test. While absolute quasi-judicial immunity will attach to
the prosecutor's conduct in the first instance, it will not apply
in the second; absolute quasi-judicial immunity is not available as
a defense to plaintiff's co
Accordingly, I concur.
;+
Justice Terry N. Trieweiler concurs in the foregoing special
concurrence.
pustice
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with those parts of the majority opinion which
reverse the District Court's order granting summary judgment to the
defendants based on prosecutorial immunity and reverse the District
Court's dismissal of plaintiff's claim based on failure to comply
with the rules of pretrial discovery.
I dissent from that part of the majority opinion which affirms
the District Court's denial of plaintiff's motion to amend her
complaint.
Plaintiff's original complaint was filed on April 8, 1991, and
named both Silver Bow County and the State of Montana as
defendants. In that complaint, it was alleged that the plaintiff's
decedent was re-incarcerated at the Butte-Silver Bow County Jail on
May 18, 1989, but that because he was depressed and inadequate
precautions were taken to protect him from himself, he committed
suicide and died on May 28, 1989. The complaint alleged that
employees of Butte-Silver Bow County who knew the decedent was
depressed and a suicide risk were negligent for failing to take
steps to safeguard his life. It alleged that some of these same
employees were also employees of the State of Montana, and
therefore, that their negligence was attributable to the State of
Montana.
On January 13, 1992, the court entered a scheduling order
which required that motions and discovery be completed by
October 1, 1992, and set October 5 as the trial date. The trial
date was later continued to November 2, 1992, and then on
September 22, 1992, was vacated and no other date was set.
It was in this posture that on September 29, 1992, plaintiff
deposed Virginia Hill, a psychiatrist employed at the State
Hospital, who had evaluated the decedent, Richard Smith. Based on
her testimony, and less than 30 days following her testimony, on
October 22, 1992, plaintiff moved for leave to file an amended
complaint which, in essence, simply alleged that State employees
other than those originally complained about were also negligent.
Plaintiff pointed out that in her deposition Dr. Hill testified
that it was the State Hospital's practice to warn jailers when a
suicidal inmate was returned to a jail, butthat she did not do so
in the case of Smith. Therefore, plaintiff simply sought to add
the following language to her complaint:
Montana State Hospital, and [sic] agent or employee
of Defendant State of Montana, failed to notify the
Butte-Silver Bow County jail staff that Mr. Smith was a
suicide risk, and failed to continue the deceased's
medication at the Butte-Silver Bow County Jail. Said
conduct was a direct and proximate cause of decedent's
death.
Other than the allegation about failure to continue medication, the
nature of the amended complaint was virtually identical to that of
the original complaint except that additional.employees of the
State were accused of failing to notify Smith's jailers of his
mental condition. If the amendment was any more similar to the
original complaint, an amendment would not have been necessary.
The District Court denied plaintiff's motion to amend based on
its conclusion that the proposed amendment did not relate back to
the conduct or occurrence set forth in the original complaint, that
the statute of limitations had expired, and that the State would be
prejudiced if the proposed amendment were allowed. I disagree and
conclude that the District Court abused its discretion when it
denied plaintiff's motion to amend her complaint.
Rule 15 (a), M.R.Civ. P. , provides, in relevant part, that after
issues have been joined by a responsive pleading, "a party may
amend the party's pleading only by leave of court or by written
consent of the adverse party; and leave shall be freelv qiven when
justice so reauires." (Emphasis added). Rule 15(b) provides that
amendments should even be freely allowed at the time of trial when
presentation of the merits of the action are served thereby. The
overriding concern is, and always should be, whether the opposing
party would be prejudiced by the amendment.
Rule 15(c) provides that even when the amendment states a
claim which would be otherwise barred by the statute of limitations
it relates back to the original pleading when "the claim or defense
asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth
in the original pleading . ... II
We discussed when amendments will relate back to the original
complaint in Prentice Lumber Company v. HukiIl ( 1972) , 161 Mont . 8, 504
P.2d 277. There, we stated with approval the following general
rule taken from 3 Moore's Federal Practice § 15.15[3], 1025-27.
"Rule 15(c) is based on the concept that a party who is
notified of litigation concerning a given transaction or
occurrence has been given all the notice that statutes of
limitations are intended to afford. Thus, if the
original pleading gives fair notice of the general fact
situation out of which the claim or defense arises, an
amendment which merely makes more specific what has
already been alleged, such as by specifying particular
acts of negligence under a general allegation of
negligence, or remedies a defective pleading, will relate
back even though the statute of limitations has run in
the interim. Similarly, while it is still the rule that
an amendment which states an entirely new claim for
relief based on different facts will not relate back, if
the pleadin4 sufficientlv indicates the transaction or -
occurrence on which the claim or defense is based.
amendments correctinq specific factual details, such as
time and place. as well as other items, will relate
back." [Emphasis added].
Prentice Lumber Co., 504 P.2d at 281.
We also stated in &entice Lumber Company, 504 P.2d at 281, that
"[ilt is equally clear that an amendment that adds another claim
arising out of the same transaction or occurrence will relate back.
3 Moore's Federal Practice, § 15.15[3], p. 1029, and cases cited
therein.
In this case, plaintiff originally alleged that employees of
the State of Montana failed to notify Smith's jailers of his mental
condition, and that as a result, he committed suicide. The
amendment simply stated that additional employees of the State of
Montana also failed to notify the same jailers of the same mental
condition and that the same result occurred. The occurrence giving
rise to the claim is the same. The occurrence is the decedent's
suicide which resulted from inadequate notice to his jailers. The
only thing that changed in the amended complaint were details
regarding the specific State employee who had failed to give the
notice. For these reasons, the amendment did relate back and the
motion to amend should not have been denied based on the District
Court's conclusion that it did not do so.
Next, the District Court concluded, and the majority agrees,
that the State of Montana would have been prejudiced if the
amendment had been allowed. Although no explanation was given by
the District Court, the majority reasons that in order to defend
against the amended complaint, the "State would be required to
expend a considerable amount of money and time to conduct
additional discovery." While it is regrettable reality that it
costs money to prove claims, as well as to defend against them, in
our American system of justice, that is hardly a basis for
concluding that prejudice exists which will preclude an amendment.
If so, no complaint nor any answer can ever be amended.
The purpose of liberally allowing amendments to the pleadings
is to resolve claims on their merits, rather than on procedural
technicalities. According to the majority's conclusion, that could
never be done.
We also discussed the issue of when amendments should be
allowed in Prentice Lumber Company. There, we stated that:
The purpose of Federal Rule 15 is described in
3 Moore's Federal Practice, § 15.02[1], p.813, in this
language:
"Rule 15 is one of the most important of the rules
that deal with pleadings. It re-emphasizes and assists
in attaining the objective of the rules on pleadings:
that pleadings are not an end in themselves, but are only
a means to the proper presentation of a case; that at all
times they are to assist, not deter, the disposition of
litigation on the merits."
"Rule 15(a) declares that leave to amend 'shall be
freely given when justice so requirest;this mandate is
to be heeded. [Citing Moore's Federal Practice] If the
underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to
be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared
reasons--such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.--the leave
sought should, as the rules require, be 'freely given.'
... II
Prentice Lumber Company, 5 0 4 P.2 d at 282
There is no evidence of bad faith or dilatory motive on the
part of plaintiff in this case. Nor were there any previous
amendments allowed. The futility of the amendment is argued by the
State but was neither addressed by the District Court nor the
majority. The sole remaining reason for denying the amendment was
prejudice to the defendant. I conclude that prejudice to the
opposing party should always be the overriding concern when an
amendment which would otherwise allow a claim to be resolved on its
merits is proposed. However, in this case, where discovery had
been extended by agreement of the parties; where the proposed
amendment resulted from information developed from depositions
which had been recently taken; and where, finally, the trial date
had been vacated and no new trial date had been set so that further
discovery was not a problem, there was no prejudice to the
defendant.
The mere expense of defending against an amended complaint
does not establish prejudice, since it costs money to prove or
defend against any claim, and on that basis, every amendment would
have to be denied. Therefore, I conclude that the District Court
erred when it denied plaintiff's motion to amend her complaint, and
I dissent from the majority opinion which affirms that order of the
District Court.
Justice William E. Hunt, Sr., joins in the foregoing concurrence
and dissent.
I
Justice