Reisdorff v. County of Yellowstone

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm

No. 99-037

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 280

296 Mont. 525

989 P.2d 850

LINDA K. REISDORFF,

Plaintiff and Appellant,

v.

COUNTY OF YELLOWSTONE, et al.,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of
Yellowstone, The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Timothy J. Whalen, Whalen & Whalen; Billings, Montana

For Respondents:

Richard J. Carstensen, Attorney at Law; Billings, Montana

Dennis Paxinos, Yellowstone County Attorney; Casey Heitz, Deputy County Attorney; Billings,
Montana

Robert K. Baldwin, Goetz, Madden & Dunn, P.C.; Bozeman, Montana

Submitted on Briefs: July~22, 1999

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm (1 of 8)4/9/2007 4:23:29 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm

Decided: November 23, 1999 Filed:

__________________________________________ Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 The Plaintiff, Linda Reisdorff, filed this action in the District Court for the Thirteenth Judicial
District in Yellowstone County to recover damages from the Defendants for conversion, trespass, and
violation of her constitutional rights. The District Court granted summary judgment to the Defendants.
Reisdorff appeals from the judgment of the District Court. We affirm the judgment of the District Court.

¶2 Although the Appellant raises a number of issues, we limit our consideration to the following two:

¶3 1. Did the District Court err when it awarded summary judgment pursuant to 41(e), M.R.Civ.P. to
those Defendants who were not served with a summons issued within one year from the commencement
of the action?

¶4 2. Did the District Court err when it awarded summary judgment to governmental Defendants and the
employees of those governmental entities based on quasi-judicial immunity? FACTUAL
BACKGROUND

¶5 The events which form the basis for this case began in 1992 when Yellowstone County Animal
Control Officer, John Fleming, investigated Reisdorff's treatment of her animals. In his affidavit,
Fleming stated that on July 24, 1992, in response to complaints of animal cruelty, he searched
Reisdorff's property. Assisting Fleming was Darlene Larson from the Billings Animal Shelter (BAS) and
David Pauli of the Humane Society of the United States (HSUS). According to Fleming's affidavit, he,
Larson, and Pauli found 300 animals on Reisdorff's property, including 90 dogs. Fleming impounded,
examined, and returned six of Reisdorff's dogs. Fleming searched Reisdorff's property again on August
7, 1992. Fleming stated in his affidavit that during that search, Reisdorff asked him to take three of her
dogs. He stated that he took the dogs to a veterinarian who recommended that they be destroyed because
of their poor physical condition.

¶6 According to Reisdorff's affidavit, she did not consent to either of Fleming's searches of her property.
She stated that if Fleming was granted permission at all it was from her husband, who she believed
instigated the State's investigation to punish her for seeking a divorce.

¶7 In his affidavit, Fleming stated that each time he searched the property it was with the consent of
either Reisdorff, the justice of the peace, or Reisdorff's husband.

¶8 After Fleming's two searches of Reisdorff's property, the State charged Reisdorff with one count of
cruelty to animals on August 24, 1992.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm (2 of 8)4/9/2007 4:23:29 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm

¶9 Three days later on August 27, 1992, the justice of the peace issued an order impounding nearly 300
animals located on Reisdorff's property. The order required Reisdorff to feed, water, and care for the
animals; to permit Animal Control reasonable access to ensure that the animals were properly cared for;
and to obtain the consent of Fleming before disposing of any animals.

¶10 Subsequently, the State and Reisdorff agreed that the State would reduce its charge to a "warning" if
Reisdorff met certain conditions. Pursuant to this agreement, on March~12, 1993, the Justice of the
Peace ordered Reisdorff to reduce the number of animals on her property to: 15 dogs, 4 horses, and 2
cows. The order also required Reisdorff to find adequate homes for those animals she was unable to
keep; to improve the "housing" for those she kept; and to obtain a kennel permit through the BAS.

¶11 After the Court ordered Reisdorff to reduce the number of her animals, according to Fleming's
affidavit, he made several attempts to inspect Reisdorff's property, but Reisdorff refused to admit him.
The reason, according to Reisdorff's affidavit, was that when Fleming inspected her property in August
1992, he introduced Parvo, an infectious disease, which resulted in the death of 28 of her dogs. Reisdorff
stated that she would allow county officials to inspect her property when they made an appointment and
she was present.

¶12 Fleming stated in his affidavit that because Reisdorff refused to allow them on her property, he and
Jeffrey Michael, a deputy county attorney, met with the justice of the peace to discuss the difficulty of
enforcing the Court's order. Michael stated in his affidavit that he proposed an order to the justice of the
peace because Reisdorff would not permit inspection of her property. The justice of the peace signed the
proposed order on June 3, 1993. Reisdorff stated in her affidavit that she was not notified of the meeting
and was not present.

¶13 The June 3, 1993 order contained the same provisions as the previous order but added that upon the
Animal Control's request, Reisdorff was to grant inspection of her property immediately; that if she
unreasonably refused inspection, the requesting officer was authorized to arrest her for contempt; and
that if violations of the original Court order were found on Reisdorff's property, Animal Control officials
"may take steps it deems necessary to bring the defendant into compliance." According to Michael's
affidavit, Fleming asked the justice of the peace if it was permissible, based on the order, to seize some
or all of the remaining animals. Michael stated that the justice of the peace gave both Fleming and him
full permission to seize, remove, retain, and treat any or all of the remaining animals on Reisdorff's
property at the discretion of the animal control officer pursuant to Michael's proposed order.

¶14 Reisdorff stated in her affidavit that she had scheduled an appointment with Fleming to inspect her
property on June 7, 1993. However, according to Reisdorff, before the meeting took place and while
Reisdorff was not present, Fleming entered Reisdorff's property without notice on June 4, 1993. Fleming
stated in his affidavit that on June 4, 1993, he and other interested individuals inspected Reisdorff's
property. He stated that he inventoried 169 animals. Of those he impounded 108. He stated that he then
moved the impounded animals to the Billings Animal Shelter (BAS)

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm (3 of 8)4/9/2007 4:23:29 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm

¶15 On June 7, 1993, the justice of the peace held a meeting in his chambers to discuss the impounded
animals. According to Fleming's affidavit the meeting was attended by Fleming, Michael, Pauli, and
Chris Thimsen, who was Reisdorff's lawyer at the time. Fleming stated that those in attendance
discussed the disposition of Reisdorff's animals, including the possibility of private adoption and
euthanasia. According to Fleming, the justice of the peace stated that Reisdorff was allowed no more
than 15 dogs.

¶16 After June 4, 1993, Fleming stated in his affidavit, that he inspected Reisdorff's property several
times and found no violations. On December 6, 1993, the justice of the peace quashed the conditions of
the March 12, 1993 order and dismissed the State's charge against Reisdorff with prejudice.

¶17 Reisdorff filed a complaint on September 20, 1994 against: Yellowstone County; the City of
Billings; the Yellowstone County Sheriff's Office of Animal Control; the Billings Animal Shelter; John
Fleming; Darlene Larson; Scott Lance of the BAS; and Does 1 through 10. Reisdorff claimed that the
Defendants exceeded the scope of their authority and unlawfully impounded and euthanized her animals.
In her complaint, Reisdorff alleged two counts: (1) that the Defendants trespassed and converted her
property, and (2) that the Defendants violated her rights under the Fourth, Fifth, and Fourteenth
Amendments, which entitles her to recovery pursuant to 42 U.S.C. §§ 1983, _85, -86, and _88. On
September 20, 1994, the clerk issued a summons for each of the named Defendants.

¶18 On February 13, 1995, the District Court granted the Defendants' motion to dismiss with respect to
Fleming, Larson, and Lance but denied the motion with respect to the City of Billings and Yellowstone
County.

¶19 On April 14, 1997, with leave of the District Court, Reisdorff amended her complaint to substitute
named Defendants for the Doe Defendants. Her amended complaint listed the same Defendants as her
original complaint and it replaced the Doe Defendants with the Animal Welfare League (AWL) and its
representative, Vicki Brewster; and the Humane Society of the United States (HSUS) and its
representative, David Pauli. Reisdorff alleged that Pauli and Brewster acted in concert with the original
Defendants. She also alleged that all of the Defendants had defamed her. On December~22, 1997, the
District Court granted summary judgment in favor of the substituted Defendants concluding that
summonses for the Doe Defendants had not been issued within one year as required by 41(e), M.R.Civ.
P. Subsequently, on October 21, 1998, the District Court granted the original Defendants' motion for
summary judgement concluding that each was entitled to judicial immunity.

STANDARD OF REVIEW

¶20 We review appeals from summary judgment de novo. Motaire v. Northern Montana Joint Refuse
Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont.
465, 470, 872 P.2d 782, 785. When we review a district court's order which grants summary judgment,
we apply the same standards as the district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone
County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth the following procedure

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm (4 of 8)4/9/2007 4:23:29 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm

for deciding and reviewing summary judgment issues: The movant must demonstrate that no genuine
issue of material fact exists. Once this has been accomplished, the burden then shifts to the non-moving
party to prove, by more than mere denial and speculation, that a genuine issue of fact does exist. Having
determined that genuine issues of material fact do not exist, the court must then determine whether the
moving party is entitled to judgment as a matter of law. We review the legal determinations made by a
district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

ISSUE 1

¶21 Did the District Court err when it awarded summary judgment pursuant to Rule 41(e), M.R.Civ.P. to
those Defendants who were not served with a summons issued within one year from the commencement
of the action?

¶22 A civil action is commenced when the plaintiff files a complaint. M.R.Civ.P. 3. The plaintiff must
then present a summons to the clerk for issuance. M.R.Civ.P. 4C. The summons must be issued within
one year after the action is commenced. M.R.Civ.P. 41(e). If the summons is not issued within that time,
the action must be dismissed. M.R.Civ.P. 41(e); Hadford v. Credit Bureau of Havre, Inc., 1998 MT 179,
¶ 37, 289 Mont. 529, ¶ 37, 962 P.2d 198, ¶ 37. "In addition to named defendants, [Rule 41(e)] provides
protection for defendants who are fictitiously named under § 25-5-103, MCA; such a defendant also is
entitled to dismissal if a summons is not issued within one year of the commencement of the action."
Hadford, ¶ 37.

¶23 Hadford involved facts similar to those in this case. In that case, after obtaining default judgment
against her former employer in a wrongful discharge action, Hadford brought an action to hold the
Credit Bureau of Havre and John Does liable for the default judgment as her former employer's alter
ego. Hadford commenced her action against the Credit Bureau and John Does I through IV, in
September 1995. Summons was timely issued and served on the credit bureau. We held that since no
summonses were issued for the John Doe defendants within one year of the filing of Hadford's
complaint in September 1995, John Does I through IV were entitled to dismissal with prejudice of
Hadford's action against them. Hadford, ¶ 38.

¶24 This action was commenced when Reisdorff filed a complaint on September 20, 1994. In her
complaint, Reisdorff listed the named Defendants and Does 1 through 10. The day Reisdorff
commenced this action, the clerk issued a summons for each of the named Defendants, but not the Doe
Defendants. On April 14, 1997, Reisdorff amended her complaint to designate the Doe Defendants as
the AWL, Brewster, HSUS, and Pauli. The clerk issued a summons for each of these Defendants on June
20, 1997, which was more than two and one-half years after Reisdorff commenced this action.

¶25 When Reisdorff commenced this action and named Doe Defendants in her complaint, she had one
year to cause the clerk to issue summonses directed to them. Since she failed to do so, the Defendants

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm (5 of 8)4/9/2007 4:23:29 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm

substituted for the Doe Defendants are entitled to dismissal pursuant to Rule 41(e), M.R.Civ.P., as a
matter of law. We conclude that the District Court did not err in awarding the Defendants summary
judgment pursuant to 41(e), M.R.Civ.P. because the Plaintiff failed to cause summonses to be issued
within one year of the commencement of this action.

ISSUE 2

¶26 Did the District Court err when it awarded summary judgment to governmental Defendants and the
employees of those governmental entities based on quasi-judicial immunity?

¶27 The 1972 Montana Constitution provides that the government is not immune from suit unless the
legislature enacts a statute by a two-thirds vote of each house. Brunsvold v. State Dept. of Inst. (1991),
250 Mont. 500, 504, 820 P.2d 732, 734; (citing Mont. Const., art. II, § 18 (1972)). The legislature has
enacted such a statute pertaining to judicial actions. Section 2-9-112, MCA provides: 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.

(3) The judiciary includes those courts established in accordance with Article VII of the Constitution of
the State of Montana.

The purpose of the statute is to permit judges to exercise judicial functions independently, without fear
of consequences. Brunsvold, 250 Mont. at 504, 820 P.2d at 734. The statute, however, should be strictly
construed. "Any statute in derogation of a constitutional right should be strictly construed. If the
legislature has not clearly provided for immunity, this Court has no business creating immunity."
Brunsvold, 250 Mont. at 507, 820 P.2d at 737 (Trieweiler, T., concurring).

¶28 In this case, Reisdorff argues that when the Defendants searched her property and removed her
animals, they were not entitled to immunity because they were not agents of the judiciary involved in an
official duty. The Defendants argue that they acted pursuant to the justice of the peace's orders, and thus
are entitled to immunity.

¶29 In Montana, to determine whether a person is an agent of the judiciary pursuant to §~2-9-112,
MCA, we inquire into the association between the person's tasks and the judicial action of the court. One
who is directly involved in an act of the judiciary is immune. City of Great Falls v. Price (1989), 238
Mont. 99, 101, 775 P.2d 1260, 1261. Conversely, one whose tasks are ministerial or administrative is not
immune. Brunsvold, 250 Mont. at 505, 820 P.2d at 735.

¶30 In City of Great Falls, we concluded that a city zoning technician was entitled to judicial immunity

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm (6 of 8)4/9/2007 4:23:29 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm

when he abated a nuisance on another's property pursuant to a court order. 238 Mont. 99, 775 P.2d 1260.
We concluded that the zoning technician was directly involved in an act of the judiciary, and because he
was an agent of the city, it too was immune. City of Great Falls, 238 Mont. at 101, 775 P.2d at 1261.
Those who conduct administrative or ministerial tasks, however, are not entitled to judicial immunity.
Brunsvold, 250 Mont at 505, 820 P.2d at 735. In Brunsvold, we held that a probation officer who
incorrectly calculated a prisoner's good time credits was not entitled to judicial immunity. 250 Mont. at
505, 820 P.2d at 735. We concluded that the probation officer "was not so intimately associated with a
judicial act as to be an agent of the judiciary discharging an official duty associated with judicial actions
of the court." Brunsvold, 250 Mont. at 505, 820 P.2d at 735. The facts in this case are more analogous to
those in City of Great Falls than to those in Brunsvold. The governmental Defendants in this case were
at all relevant times, directly implementing the justice court order to: "Take what steps it deems
necessary to bring the defendant into compliance."

¶31 Therefore, we conclude that the District Court did not err when it held that the state tort claims for
trespass and conversion were barred by §~2-9-112, MCA.

¶32 State immunity laws, however, do not shield the State or its officials from liability based on 42 U.S.
C. § 1983. Morrison v. Jones (9th Cir. 1979), 607 F.2d 1269, 1273. To be immune from liability for
claims based on 42 U.S.C. § 1983, the immunity must be found in federal law. However, there is a
substantial body of federal law discussing judicial immunity including Stump v. Sparkman (1978), 435
U.S. 349, 98 S. Ct. 1099; see Roland v. Phillips (11th Cir. 1994), 19 F.3d 552; Eggar v. City of
Livingston (9th Cir. 1994), 40 F.3d 312.

¶33 In Stump, the United States Supreme Court established a two-part test for determining when a judge
is entitled to immunity from a § 1983 action. The first part of the test is whether the judge dealt with the
plaintiff in a judicial capacity. Stump, 435 U.S. at 362, 98 S. Ct. at 1107. If the judge was not dealing
with the plaintiff in a judicial capacity, then there is no immunity. If the judge was dealing with the
plaintiff in his or her judicial capacity, however, the second part of the test is whether the judge acted in
the "clear absence of all jurisdiction." Stump, 435 U.S. at 357, 98 S. Ct. at 1105.

¶34 In this case, when the justice of the peace issued his June 3, 1993 order, he was clearly acting in his
judicial capacity. The effect of his order was to prohibit Reisdorff from continuing to violate his
previous order issued on August 27, 1992, which required Reisdorff to feed and care for her animals.
The justice of the peace also had jurisdiction because Reisdorff agreed to abide by certain conditions in
exchange for the State's dismissal of its charge of animal cruelty.

¶35 From the doctrine of judicial immunity has come the foctrine of quasi-judicial immunity. See Turner
v. American Bar Ass'n (N.D. Texas 1975), 407 F.Supp. 451, 482. Quasi_Judicial Immunity is more
limited than the immunity afforded Judges and extends only to those acts committed within the scope of
the actor's jurisdiction and with the authorization of law. The Doctrine is not for the benefit of a
defendant_actor but rather for the benefit of the public whose interest it is that quasi-judicial officers
should be at liberty to exercise their functions unfettered by fear of legal consequences. Turner, 407 F.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm (7 of 8)4/9/2007 4:23:29 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm

Supp. at 482. Courts have consistently held that officials acting pursuant to a facially valid court order
have a quasi-judicial absolute immunity from damages for actions taken to execute that order. See
Patterson v. Von Riesen (8th Cir. 1993), 999 F.2d 1235, 1240.

¶36 In this case, Reisdorff did not argue that the order was facially invalid. The governmental
Defendants were directly implementing the justice court's order of June 3, 1993. We conclude that the
District Court did not err when it awarded summary judgment to governmental Defendants and the
employees of those governmental entities based on quasi-judicial immunity.

¶37 For these reasons the judgment of the District Court is affirmed.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/99-037_(11-23-99)_Opinion.htm (8 of 8)4/9/2007 4:23:29 PM