No. 86-575
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
WAYNE RONEK and ROGER RONEK,
Plaintiffs and Appellants,
-vs-
GALLATIN COUNTY, MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry Jent argued, Bozeman, Montana
For Respondent:
Harrison, Loendorf & Poston; Stephen R. McCue argued,
Helena, Montana
A. Michael Salvagni, County Attorney, Bozeman, Montana
For Amicus Curiae:
Mark Murphy, Asst. Atty. General, Montana County
Attorneys Assoc., Helena, Montana
Submitted: June 2, 1987
Decided: July 29, 1987
Filed: JUL 2 9 1987.
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Appellants appeal an order of the District Court of the
Eighteenth Judicial District in and for Gallatin County,
Montana, dismissing their complaint for failure to state a
claim on which relief can be granted. We affirm.
This case arose out of a criminal prosecution in which
the complaint, filed in Gallatin County justice court,
charged common scheme theft in violation of 5 45-6-301 (2)(a),
MCA. Roneks, appellants here, purportedly contracted to
build garages for certain named owners of property in
Gallatin County and then failed to pay the materialmen who
provided materials used in the construction. The County
dismissed the complaint almost two months after the ~ h a r g e s
were brought. Roneks then filed a complaint against the
County, premised on the theory of malicious prosecution,
specifically that the charge was brought without probable
cause, and for false imprisonment. The County filed its
answer denying all material allegations.
Gallatin County then filed an application for a writ of
supervisory control with this Court, directed to the District
Court and ordering the Roneks' complaint be dismissed. The
application was denied. Meanwhile, Roneks successfully moved
to amend their complaint to reflect a cause of action for
violation of their constitutional rights under 42 U.S.C.
5 1983, part of the Civil Rights Act of 1871. In this count
Roneks alleged that Gallatin County was liable for the action
of the Gallatin County Attorney "while carrying out the
policy of [Gallatin County]." The action was directed at the
County only and not against any individuals. Gallatin County
moved to dismiss that count, the parties submitted briefs,
including an amicus brief from the Montana County Attorney's
Association. At oral argument the court granted Gallatin
County leave to renew its motion to dismiss the entire
complaint, including the first count alleging malicious
prosecution, which the court previously had denied. Roneks
were permitted to amend their complaint a second time. The
District Court dismissed the entire second amended complaint
in August 1986, concluding the County was not the proper
entity for either of the two counts. Roneks appeal.
The dispositive issue in this case is whether Gallatin
County is the proper defendant, whether the charge is
malicious prosecution or violation of 5 1983 of the Civil
Rights Act. Appellants apparently concede the immunity of
the county attorney.
The common law powers and duties of the prosecutor can
be traced back to the English common law and have been part
of our system of jurisprudence since the days of the Bannack
statues. State ex rel. Ford v. Young (1918), 54 Mont. 401,
403, 170 P. 947, 948. The prosecutor is a quasi-judicial
officer who enjoys common law immunity from civil liability
for conduct within the scope of his duties. This allows him
"to speak and act freely and fearlessly in enforcing the
criminal laws." State ex rel. Dept. of Justice v. District
Court (1977), 172 Mont. 88, 90, 560 P.2d 1328, 1329.
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.
Imbler v. Pachtman (1976), 424 U.S. 409, 422-423, 96 S.Ct.
984, 991, 47 L.Ed.2d 128, 139.
We have made clear that abolition of sovereign immunity
in Art. 11, § 18 of the 1972 Montana Constitution does not
abolish prosecutorial immunity.
They are different concepts and are
supported by different considerations of
public policy. Art 11, 18... did
not abolish prosecutorial immunity. When
a prosecutor acts within the scope of his
duties by filing and maintaining criminal
charges he is absolutely immune from
civil liability, regardless of negligence
or lack of probable cause.
State ex rel. Dept. of Justice, supra, at 92, 560 P.2d at
1330. The doctrine must encompass the state and its
agencies, as well as the prosecutor, or its efficacy will be
lost. -Id. The Court finds it unnecessary to confront the
thorny problem of whether the county attorney in his
prosecutorial capacity is an agent of either the county or
the state in order to reach a decision in this case.
We extend the holding in State ex rel. Dept. of Justice
to include prosecutorial immunity for counties. Nonetheless,
we will address certain of Roneks' arguments in an effort to
clarify the holding. They argue the District Court ignored
the distinction between personal capacity suits and official
capacity suits. Their contention is Gallatin County, the
only named defendant in this action, cannot use the personal
prosecutorial immunity of the county attorney as a shield for
its own liability in an official capacity action. We do not
find that is what the County is doing, however.
Personal capacity suits seek to impose personal
liability on a governmental official for actions he takes
under color of state law. Scheuer v. Rhodes (1974), 416 U.S.
232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90, 98. Clearly
the case at bar is not such a case. By contrast, however,
Roneks argue that official capacity suits "generally
represent only another way of pleading an action against an
entity of which an officer is an agent." Monell v. N.Y. City
Dept. of Social Services (1978), 436 U.S. 658, 690, n. 55, 98
S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611, 635, n. 55. The
Court in Monell continued, however:
[L]ocal government officials sued in
their official capacity are "persons"
under S 1983 in those cases in which, as
here, a local government would be suable
in its own name.
Id.
In Monell, the New York City Department of Social
Services and the City Board of Education, as a matter of
official policy, compelled pregnant employees to take unpaid
leaves of absence before such leaves were required for
medical reasons. The named defendants, the Department and
its Commissioner, the Board and its Chancellor, the City of
New York and its Mayor, were sued solely in their official
capacites.
In the case at bar, the county attorney is not a named
defendant in either his personal or official capacity.
Further, Gallatin County is immune from suit when
prosecutorial misconduct is at issue by virtue of our holding
in State ex rel. Dept. of Justice, supra. In order to apply
the reasoning in Monell, an official of the governmental
entity must be named in his official capacity, and the
governmental entity must be suable in its own name. Neither
circumstance pertains here.
The prosecutorial duties of the county attorney are
defined statutorily and include drawing all indictments and
informations. Section 7-4-2712, MCA. The county attorney
also must:
(1) attend the district court and
conduct, on behalf of the state, all
prosecutions for public offenses and
represent the state in all matters and
proceedings to which it is a party or in
which it may be beneficially interested,
at all times and in all places within the
limits of his county;
(2) when ordered or directed by the
attorney general to do so, promptly
institute and diligently prosecute in the
proper court and in the name of the state
of Montana any criminal or civil action
or special proceeding;
(3) defend all suits brought against the
state.
Section 7-4-2716, MCA. A determination by the county
attorney to bring an action is discretionary, and is his duty
under the law. There is no evidence or specific allegation
the county attorney exceeded his authority or was derelict in
his duty under the law.
Roneks are not aided by amending their complaint to
include a § 1983 action.
42 U.S.C. § 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State or Territory or
the District of Columbia, subjects, or
causes to be subjected, any citizen of
the United States or other person within
the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution
and laws, shall be liable to the party
injured in an action at law, suit in
equity, or other proper proceeding for
redress ...
Local government entities can be sued under § 1983
[w]here ... the action that is alleged
to be unconstitutional implements or
executes a policy statement, ordinance,
regulation, or decision officially
adopted and promulgated by that body's
officers. However, .. .
[there must be]
an allegation that official policy is
responsible for a deprivation of rights
protected by the Constitution.
Monell v. N.Y. City Dept. of Social Services, supra, at 690,
98 S.Ct. at 2035-2036, 56 L.Ed.2d at 635.
[Pllaintiffs have failed to allege with
specificity that any particular action
was taken pursuant to any particular
policy, [or] that any specified policy
exists ...
Whelehan v. County of Monroe (W.D.N.Y. 1983) 558 F.Supp.
A careful examination of the pleadings does not
enlighten the Court as to which of Roneks' constitutional
rights were violated. A suspect who is jailed pursuant to a
valid warrant has no claim under the Fourteenth Amendment to
the United States Constitution that he was deprived of his
liberty without due process. Baker v. McCollan (1979), 443
U.S. 137, 143-146, 99 S.Ct. 2689, 2694-2695, 61 L.Ed.2d 433,
441-442. (In the case at bar, Roneks allege the arrest
warrant was not valid, but fail to allege the nature of the
infirmity.) Nor does the allegation of malicious prosecution
automatically include the elements of a § 1983 action. Bretz
v. Kelman (9th Cir. 1985), 773 F.2d 1026.
Nor can a local government be held liable solely
because it employs a tortfeasor. That is, a local government
cannot be held liable under § 1983 on a respondeat superior
theory. Only when an injury results from execution of a
government policy or custom is the governmental entity
responsible under § 1983. See Monell, supra, at 691-694, 98
S.Ct. at 2035-2037, 56 L.Ed.2d at 635-637.
There are strong policy reasons for absolute
prosecutorial immunity for governmental entities, as well as
for personal immunity of the prosecutor.
It can scarcely be denied that a
defendant who has been acquitted of
criminal charges has nothing to lose by
commencing a S 1983 action against the
prosecutor's municipal employer. The
costs to the public from frivolous claims
of malicious prosecution, however, are
great, and far outweigh the minimal
deterrent effect of civil suits on actual
prosecutorial misconduct. Whether the
government's case is weak or strong, if
there is evidence establishing probable
cause to believe criminal acts have been
performed, the prosecutor should be given
every incentive to submit the evidence to
the "crucible of the judicial process so
that the factfinder may consider it ...
to determine where the truth lies."
Imbler v. Pachtman, 424 U.S. 409, at 440,
96 S.Ct. 984, 999, 47 L.Ed.2d 128 (1976)
White J., concurring in the judgment.
These incentives are not provided if the
prosecutor is to be constantly distracted
by civil actions under $ 1983 that
require a judge and jury to second guess
the propriety of his acts performed in
discharging his core responsibilities.
Armstead v. Town of Harrison (S.D.N.Y. 19841, 579 F.Supp 777,
782-783. See also State ex rel. Dept. of Justice, supra, and
cases cited therein.
This lawsuit illustrates the importance of
prosecutorial immunity.
Prosecutorial immunity does not reflect
judicial or social approval of
prosecutorial misconduct, but rather
reflects a balance between an
individual's right to be treated fairly
by prosecutors and society's need to keep
the criminal justice system functioning
without undue interference and protracted
delay.
Siano v. Justices of Massachusetts, (1st Cir. 1983), 698 F.2d
52, 57. Cert. denied (1983), 464 U.S. 819, 104 S.Ct. 80, 78
L.Ed.2d 91.
The order dismissing the complaint is affirmed.