October 15 2009
DA 09-0032
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 334N
RUSSELL R. NICKEL,
Plaintiff and Appellant,
v.
JEFFREY FAYCOSH,
Defendant and Appellee.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Stillwater, Cause No. DV 07-061
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
W. Scott Green, Patten, Peterman, Bekkedahl & Green, PLLC,
Billings, Montana
Paul G. Matt, Attorney at Law, Billings, Montana
Richard Tegtmeier, Tegtmeier Bednarski Law Firm,
Colorado Springs, Colorado
For Appellee:
W. Anderson Forsythe, Matthew D. Braukmann, Moulton
Bellingham, PC, Billings, Montana
Submitted on Briefs: September 10, 2009
Decided: October 14, 2009
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number, and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 This is an appeal by Russell Nickel from the order of the Twenty-Second Judicial
District Court, Stillwater County, granting summary judgment in favor of Jeffrey
Faycosh. The case arises out of an investigation which Faycosh (an agent with the
Montana Department of Justice, Division of Criminal Investigation) and Columbus
Police Chief Mori Woods began in October 1999. At the conclusion of the investigation,
Faycosh applied for and obtained warrants from the Thirteenth Judicial District Court,
Yellowstone County, to search Nickel’s home and his business, Precision Theatrical
Effects, Inc. (PTE). The warrants were executed on November 7, 1999. Various
chemicals were seized during the search of PTE, but it is not known what evidence was
seized from the residence.
¶3 On November 12, 1999, Faycosh filed an “Ex Parte Motion to Seal Court File” in
the Thirteenth Judicial District Court, in which he asserted that the court documents
needed to be sealed because they contained “sensitive information involving confidential
informants.” Faycosh, who was not a licensed Montana attorney, signed the motion in
his capacity as “Agent, MDCI.” The court ordered the court file sealed that same day.
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¶4 Nickel eventually was arrested and charged in the Twenty-Second Judicial District
Court with ten felony drug-related counts. Stillwater County Attorney Robert Eddleman
prosecuted the case. Nickel filed a number of pretrial motions, including motions to
suppress. The District Court concluded, and the State conceded, that “the search warrant
did not contain adequate facts to justify a search of [Nickel’s] home or vehicle.” Thus,
all evidence obtained from Nickel’s home and vehicle was suppressed before trial. The
court also suppressed any incriminating statements Nickel made at his home on
November 7, 1999 (the date of the search) on the ground that he had not been advised of
his Miranda rights. But the court ruled that the statements Nickel made later that evening
to Faycosh should not be suppressed because they were made voluntarily.
¶5 Nickel was acquitted of the charges at the conclusion of the trial in May 2001. He
and PTE thereafter filed suit against Faycosh, Woods, the City of Columbus, the State of
Montana, Stillwater County, and Stillwater County Attorney Robert Eddleman, alleging
various claims arising out of the criminal investigation, the search, and his subsequent
arrest on felony charges. In March 2005, the United States District Court for the District
of Montana, Billings Division, granted all of the defendants’ motions for summary
judgment as to all of Nickel’s and PTE’s claims.
¶6 Nickel appealed to the United States Court of Appeals for the Ninth Circuit, which
affirmed in part and reversed in part. Nickel v. Woods, 229 Fed. Appx. 432 (9th Cir.
2007). The court held that while the district court had properly granted summary
judgment in favor of Faycosh on Nickel’s claims under 42 U.S.C. § 1983, the district
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court had erroneously granted summary judgment in favor of Faycosh on Nickel’s state-
based right-of-privacy claim regarding the residential search. The court explained:
Because Nickel sought to enforce his rights under Montana’s Constitution,
the district court should have analyzed this claim by inquiring whether
there was probable cause for the search warrant under state law. We
conclude that there was not.
Faycosh attempted to link Nickel’s allegedly unlawful activities with
his residence by stating “[t]hat it is common for drug dealers to secrete
contraband, proceeds from drug sales and records of drug transactions in
secure locations within their residence.” Because the application contained
no detailed basis for Faycosh’s conclusory statement, the search warrant
application did not establish probable cause under Montana law. See State
v. Kaluza, 901 P.2d 107, 109, 110 (Mont. 1995) . . . .
Accordingly, we reverse and remand to provide Nickel with an
opportunity to proceed with his state law right of privacy claim as to the
search of his residence. Because we affirm the district court’s dismissal of
Nickel’s federal claims, the district court should determine on remand
whether it is appropriate to continue to exercise supplemental jurisdiction.
Nickel, 229 Fed. Appx. at 435 (some citations omitted).
¶7 On remand, the United States District Court observed that “the only remaining
claim is Faycosh’s state-law right of privacy.” The court declined to exercise jurisdiction
over this claim pursuant to 28 U.S.C. § 1367(c) and dismissed the case without prejudice.
Nickel then filed his complaint against Faycosh in the instant action on August 31, 2007.
He alleged an illegal search of his residence due to lack of probable cause and a violation
of his right to privacy under Article II, Section 10 of the Montana Constitution. Faycosh
filed an answer to the complaint and thereafter filed a motion for summary judgment.
¶8 The District Court held a hearing on Faycosh’s motion and, on December 10,
2008, granted it. At the outset, the court reasoned that the probable-cause question is a
part of the right-to-privacy analysis. Furthermore, the court noted that the remedy for an
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unconstitutional search is suppression of evidence, which had occurred in the criminal
trial. Thus, the court combined Nickel’s illegal-search and right-to-privacy claims into
one: “whether Faycosh violated Nickel’s right to privacy under the Montana Constitution
when Faycosh searched Nickel’s residence without requisite probable cause.”
¶9 The court ultimately answered this question in the affirmative. First, citing State
v. Goetz, 2008 MT 296, ¶ 40, 345 Mont. 421, 191 P.3d 489, the court observed that
searches conducted without a properly issued search warrant are per se unreasonable,
absent a recognized exception to the warrant requirement. The court then noted (1) that
there was no probable cause under Montana law for the search warrant for Nickel’s
residence and (2) that Faycosh had not argued any exceptions to the warrant requirement.
Accordingly, the court ruled that Faycosh’s search of the residence was unconstitutional.
¶10 The District Court next observed, based on Dorwart v. Caraway, 2002 MT 240,
¶ 48, 312 Mont. 1, 58 P.3d 128, that a cause of action for money damages is available for
violation of those rights guaranteed by Article II, Sections 10 and 11 of the Montana
Constitution. Nevertheless, the court decided that Faycosh was entitled to statutory
immunity under § 2-9-112, MCA (immunity from suit for judicial acts and omissions).
Relying on Silvestrone v. Park County, 2007 MT 261, 339 Mont. 299, 170 P.3d 950, the
court reasoned that Faycosh’s execution of the search warrant issued by the Thirteenth
Judicial District Court for Nickel’s residence represented the judicial power of the State
put into action and, as such, qualified as a judicial act under § 2-9-112, MCA. In the
alternative, the District Court decided that Faycosh was entitled to quasi-judicial
immunity under Reisdorff v. County of Yellowstone, 1999 MT 280, 296 Mont. 525, 989
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P.2d 850. The court reasoned that Nickel had failed to demonstrate that Faycosh, at the
time he executed the search warrant, knew that the warrant lacked probable cause. The
court observed that Faycosh was not required to act as a “pseudo-appellate court” and
scrutinize the Thirteenth Judicial District Court’s probable-cause determination. The
court concluded that Faycosh had acted in compliance with a facially valid court order at
the time he searched Nickel’s residence and, thus, that he had quasi-judicial immunity
from Nickel’s claims resulting from the unconstitutional search of the residence.
¶11 On appeal, Nickel challenges the District Court’s immunity analysis. He asserts
that the court ignored two “reckless” acts by Faycosh: he inaccurately characterized a
government witness as a “confidential informant” in his warrant applications, and he
“illegally” filed the ex parte motion to seal the search warrants and applications. Nickel
argues that these acts eliminate Faycosh’s entitlement to immunity. At the very least, he
contends that they create genuine issues of material fact. Alternatively, Nickel argues
that judicial immunity and quasi-judicial immunity are “in direct contradiction” to Article
II, Section 16 of the Montana Constitution.
¶12 In response, Faycosh argues that the District Court’s immunity analysis was
correct. Furthermore, he argues that Nickel’s argument related to the “confidential
informant” is procedurally improper because it was not raised first in the District Court,
because it is precluded by collateral estoppel and by the law-of-the-case doctrine, and
because it is irrelevant. Likewise, Faycosh argues that Nickel’s argument regarding the
ex parte motion is irrelevant because the only claim at issue in this litigation is Nickel’s
state-law right-of-privacy claim related to the search of his residence, not Faycosh’s
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actions following the search. Finally, Faycosh asserts that Nickel’s constitutional
challenge is being raised for the first time on appeal and, thus, that we should not
consider it. See State v. Morrison, 2008 MT 16, ¶ 10, 341 Mont. 147, 176 P.3d 1027
(“We deem issues which are presented for the first time on appeal to be untimely and will
not consider them.”).
¶13 In response to this last point, Nickel contends in his reply brief that “the issue of
whether immunity is constitutional was clearly raised in the lower court” by virtue of two
sentences in his Response to Defendant’s Motion for Summary Judgment: “The Montana
Constitution prohibits immunity from suit from Montana state and local governments.
Mont. Cost. Art. II. § 18. Furthermore, the Montana Constitution affords a right to every
person to bring an action in court. Mont. Const. Art. II § 16.” We note, however, that
Nickel did not present any corresponding argument that immunity is unconstitutional. Cf.
State v. Courville, 2002 MT 330, ¶ 5, 313 Mont. 218, 61 P.3d 749 (general assertions to
the trial court without any argument analyzing those assertions under relevant law were
insufficient to preserve a constitutional issue for appeal). Nickel also contends that he
challenged the constitutionality of both § 2-9-112, MCA, and quasi-judicial immunity in
his post-judgment motion under M. R. Civ. P. 59(g) and 60(b)—though Faycosh pointed
out in response that Nickel did not meet the requirements for relief under either rule.
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. Having reviewed the record, the District Court’s order, and the
parties’ briefs, we conclude (1) that the legal issues related to Faycosh’s entitlement to
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statutory immunity and quasi-judicial immunity are clearly controlled by settled Montana
law, which the District Court correctly interpreted and applied, and (2) that Nickel’s
constitutional challenges are not properly before this Court.
¶15 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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