State Ex Rel Dept. of Justice v. Di

No. 13605

I N THE SUPREME COURT O F T H E S T A T E O F MONTANA

S T A T E e x r e l . DEPARTMENT O F J U S T I C E O F T H E S T A T E O F MONTANA, t h e HONORABLE ROBERT L . WOODAHL, ATTORNEY GENERAL O F T H E S T A T E O F MONTANA; and t h e S T A T E O F MOP,JTANA,

Relators, -vs- T H E D I S T R I C T COURT O F T H E E I G H T H J U D I C I A L D I S T R I C T OF THE STATE O F I N AND F O R T H E COUNTY O F CASCADE, and t h e HON. TRUP.!lAN G. BRADFORQ J u d g e t h e r e o f , Respondents.

No. 13606

S T A T E ex r e l . DEPARTMENT O F J U S T I C E O F T H E S T A T E O F MONTANA, t h e HONORABLE ROBERT L . WOODABL, ATTORNEY GENERAL O F T H E S T A T E O F MONTANA; and t h e S T A T E O F MONTANA,

Relators,

-vs- T H E D I S T R I C T COURT O F T H E T H I R D J U D I C I A L D I S T R I C T O F T H E S T A T E O F MONTANA, I N AND F O R T H E COUNTY O F DEER LODGE and t h e HON. ROBERT J . BOYD, J U D G E presiding. Respondents.

O R I G I N A L PROCEEDING : C o u n s e l of R e c o r d :

For R e l a t o r s :

G a r l i n g t o n , L o h n and R o b i n s o n , M i s s o u l a , M o n t a n a G a r y G r a h a m argued and S h e r m a n V. L o h n a r g u e d , Missoula, Montana For R e s p o n d e n t s :

S m i t h , E m m o n s , B a i l l i e and W a l s h , G r e a t F a l l s , Montana R o b e r t J. Emmons argued, G r e a t F a l l s , M o n t a n a

Submitted: December 6, 1976

Filed: - D F 2~ 575 TliOiviAS J. /;;:~tizy Clerlc

Mr. C h i e f J u s t i c e James T. H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e Court.

These two o r i g i n a l p r o c e e d i n g s w e r e c o n s o l i d a t e d by o r d e r o f t h i s C o u r t d a t e d November 1 5 , 1976. They p r e s e n t t h e same issue f o r our resolution: Can t h e A t t o r n e y G e n e r a l , t h e Department o f J u s t i c e , o r t h e S t a t e o f Montana b e s u e d f o r m a l i c i o u s p r o s e c u t i o n i n a c i v i l a c t i o n f o r damages?

On J u l y 30, 1974, r e l a t o r s f i l e d a n i n f o r m a t i o n c h a r g -i n g G l o r i a Eusek Carden w i t h o n e c o u n t o f g r a n d l a r c e n y and two c o u n t s o f f o r g e r y i n v o l v i n g workmen's c o m p e n s a t i o n c l a i m s . T h i s i n f o r m a t i o n was d i s m i s s e d and r e p l a c e d w i t h a s e c o n d i n -f o r m a t i o n c h a r g i n g Carden w i t h o n e c o u n t o f g r a n d l a r c e n y and only one count of forgery. The o t h e r f o r g e r y c o u n t c o n t a i n e d i n t h e f i r s t information w a s not r e f i l e d . A f t e r m o t i o n by Carden, t h e g r a n d l a r c e n y c o u n t was d i s m i s s e d by t h e d i s t r i c t c o u r t f o r l a c k of probable cause. The r e m a i n i n g c o u n t o f f o r -g e r y was d i s m i s s e d by t h e d i s t r i c t c o u r t i n t h e i n t e r e s t o f j u s t i c e upon m o t i o n by r e l a t o r s .

On J u l y 30, 1976, Carden f i l e d a c o m p l a i n t a g a i n s t r e l a t o r s i n t h e d i s t r i c t c o u r t i n Cascade County. Carden's complaint a l l e g e d t h a t i n f i l i n g t h e c r i m i n a l charges a g a i n s t her, r e l a t o r s acted maliciously, negligently, without probable c a u s e , and i n v i o l a t i o n o f h e r c i v i l r i g h t s . I n r e s p o n s e , rel a t o r s f i l e d a m o t i o n t o d i s m i s s t h e c o m p l a i n t a r g u i n g , among o t h e r t h i n g s , t h a t t h e c l a i m a g a i n s t them was b a r r e d by t h e d o c t r i n e o f p r o s e c u t o r i a l immunity. Respondent d i s t r i c t c o u r t i n Cascade County h e a r d a r g u m e n t s and d e n i e d t h e m o t i o n on November 1 0 , 1976.

On August 2 , 1 9 7 6 , F r a n k P r e i t e f i l e d a s i m i l a r comp l a i n t a g a i n s t r e l a t o r s i n t h e d i s t r i c t c o u r t i n D e e r Lodge County. This complaint a l l e g e d t h a t r e l a t o r s acted maliciously, n e g l i g e n t l y , w i t h o u t p r o b a b l e c a u s e , and i n v i o l a t i o n o f P r e i t e ' s

civil rights by filing an information on July 31, 1974, charg- ing him with three counts of grand larceny and one count of forgery involving workmen's compensation claims. Further dam- ages were sought because of relatorst efforts to have the charges dismissed and refiled in another county. Relators filed a motion to dismiss Preitets complaint which was denied the respondent district court in Deer Lodge County on Octo- ber 14, 1976. Relators appeared - parte before this Court on November ex 15, 1976, seeking a writ of supervisory control or other appro- priate writ directing the dismissal of the Carden and Preite complaints. An adversary hearing was ordered and held before this Court on December 6, 1976. Relators argue that a prosecuting attorney is a quasi- judicial officer who enjoys absolute immunity from civil lia- bility for conduct within the scope of his duties. They contend it is in the public interest to allow a prosecutor to speak and act freely and fearlessly in enforcing the criminal laws and that he will become intimidated if he must calculate the likeli- hood of a civil suit whenever he files criminal charges. In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L ed 2d 128 (1976), the United States Supreme Court said: "The common-law immunity of a prosecutor is based upon the same considerations that under- lie 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 deflec- tion of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercis- ing the independence of judgment required by his public trust. * * *" Respondents, however, do not question the prior existence of prosecutorial immunity in Montana; but argue that such immunity has now been abolished. Article 11, Section 18 of the 1972

Montana Constitution, as amended, effective July 1, 1975, provides: "The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature." Section 83-706.1, R.C.M. 1947, provides in part: "The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property. This provision shall apply only to claims for relief and causes of action arising after July 1, 1973. * * * " Section 82-4310, R.C.M. 1947, of the Montana Comprehensive State Insurance Plan and Tort Claims Act provides: "Every governmental entity is subject to lia- bility for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietary function." Respondents argue from these authorities that all forms of im- munity have been eliminated. They point out that the definition of "personal injury" in section 82-4302, R.C.M. 1947, of the Montana Comprehensive State Insurance Plan and Tort Claims Act includes injury resulting from vmalicious prosecution"; that the definition of "claim" includes negligent acts or ommissions; and that the definition of "employee" includes elected officials. In No11 and Kenneady v. Bozeman, 166 Mont. 504, 505, 534 P.2d 880, we referred to Article 11, Section 18, 1972 Montana Constitution and stated that the concept of "sovereign immunity" was abolished. Respondents' argument would have merit if sovereign immunity and prosecutorial immunity were merely two different terms used to describe the same thing. That, how- ever, is not the case. They are different concepts and are supported by different considerations of public policy. Article 11, Section 18, 1972 Montana Constitution did not abolish prose-

cutorial 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 negli- gence, or lack of probable cause. Our holding is not affected by the Montana Comprehensive State Insurance Plan and Tort Claims Act or section 83-706.1, R.C.M. 1947. In Storch v. Board of Dir. of East. Mont. Reg. Five M.H.C., Mont. I

545 P.2d 644, 646, 33 St.Rep. 102, 104, we said: "It is an established general principle that any statutory waiver of a state's immunity from suit is to be strictly construed. * * * " The statutes cited by respondents do not specifically refer to prosecutorial immunity and in light of Storch we cannot imply the existence of such abolishment. Respondents argue further that even if the attorney general as prosecutor is protected from suit, the doctrine of prosecutorial immunity does not extend to the Department of Jus- tice and the State of Montana. A similar argument was disposed of in Creelman v. Svenning, 67 Wash.2d 882, 410 P.2d 606, 608: "The public policy which requires immunity for the prosecuting attorney, also requires immunity for both the state and the county for acts of judicial and quasi-judicial officers in the per- formance of the duties which rest upon them; otherwise, the objectives sought by immunity to the individual officers would be seriously im- paired or destroyed. If the prosecutor must weigh the possibilities of precipitating tort litigation involving the county and the state against his action in any criminal case, his freedom and independence in proceeding with criminal prosecutions will be at an end. The public advantage of free, independent, and un- trammeled action by the prosecuting attorney outweighs the disadvantage to the private citizen in the rare instance where he might otherwise have an action against the county and state, either or both." The doctrine must encompass the state and its agencies, as well as the prosecutor, or its efficacy will be lost. We note that this is a proper case for the exercise of our original jurisdiction. In State ex rel. City of Helena v.

District Court, 167 Mont. 157, 536 P.2d 1182, 1185, 32 St.Rep. 581, we said: " * * * a writ of supervisory control is proper here as the sole means by which petitioner can avoid the substantial prejudice of being forced to defend a suit where, as a matter of law, lia- bility cannot be established." Relators cannot appeal from denial of a motion to dismiss a complaint and as liability cannot be established as a matter of law they face substantial prejudice in defending both of these actions unless relief is granted. This opinion will constitute a writ of supervisory control for the guidance o

, . W concur: -,e / / / I Chief Justice

Justices y