No. 13605 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE ex rel. DEPARTMENT OF JUSTICE OF THE STATE OF MONTANA, the HONORABLE ROBERT L. WOODAHL, ATTORNEY GENERAL OF THE STATE OF MONTANA; and the STATE OF MOP,JTANA, Relators,-vsTHE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF INAND FOR THE COUNTY OF CASCADE, and the HON. TRUP.!lAN G. BRADFORQ Judge thereof, Respondents.

No. 13606 STATE ex rel. DEPARTMENT OF JUSTICE OF THE STATE OF MONTANA, the HONORABLE ROBERT L. WOODABL, ATTORNEY GENERAL OF THE STATE OF MONTANA; and the STATE OF MONTANA, Relators,

-vsTHE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF DEER LODGE and the HON. ROBERT J. BOYD, JUDGE presiding. Respondents.

ORIGINAL PROCEEDING: Counselof Record: For Relators: Garlington, Lohn and Robinson, Missoula, Montana GaryGraham argued and Sherman V. Lohn argued,

Missoula, Montana For Respondents: Smith, Emmons, Baillieand Walsh, GreatFalls,

Montana RobertJ. Emmons argued, GreatFalls, Montana

Submitted: December 6, 1976

Filed: 

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# -575 TliOiviASJ.

### /;;:~tizyClerlcMr. Chief JusticeJames T. Harrison delivered the Opinion of the Court. These two originalproceedings were consolidated by order of thisCourt dated November 15, 1976. They present the

same issue forour resolution: Can theAttorney General, the Department of Justice, orthe Stateof Montana be sued for malicious prosecution ina civilaction for damages? On July 30, 1974, relators filed an informationcharging Gloria Eusek Carden with one count of grand larceny and two counts of forgery involvingworkmen's compensation claims. This information was dismissed and replaced with a second information charging Carden with one count of grand larceny and only one count of forgery. The other forgery count contained inthe firstinformation was not refiled. Aftermotion by Carden, thegrand larceny count was dismissed by thedistrict court for lackof probable cause. The remaining count of forgery was dismissed by thedistrictcourt inthe interest of justice upon motion by relators. On July 30, 1976, Carden fileda complaint against relators inthedistrictcourt inCascade County. Carden's complaint alleged that infilingthecriminal charges against her, relators acted maliciously, negligently, without probable cause, and inviolation of her civilrights. Inresponse, relators filed a motion todismiss the complaint arguing, among other things, that theclaim against them was barred by the doctrineof prosecutorial immunity. Respondent districtcourt inCascade County heard arguments and denied themotion on November 10, 1976. On August 2, 1976, Frank Preite filed a similarcomplaint against relators inthedistrictcourt inDeerLodge County. This complaint alleged thatrelators acted maliciously, negligently, without probable cause, and inviolation of Preite'scivil rights by filing an information on July 31, 1974,charging him with three counts of grand larceny and one count of forgery involvingworkmen's compensation claims. Further damages were sought because of relatorstefforts to have the chargesdismissed and refiled in another county. Relators filed a motion to dismiss Preitetscomplaint whichwas denied the respondent district court in Deer Lodge County on October 14, 1976. Relators appeared 

### - ex parte before this Court onNovember 15, 1976, seeking a writ of supervisory control or other appropriate 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 quasijudicial officer who enjoys absolute immunity from civil liability for conductwithin 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 likelihood 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: "Thecommon-law immunityof 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 litigationwould 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. 

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## * *" 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 1972Montana Constitution, as amended, effective July 1, 1975, provides: "The state, counties, cities, towns, and all other local governmental entities shallhave no immunity from suit for injury to a person or property, except asmay 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 liability for its torts and those of its employees actingwithin the scope of their employment or dutieswhether arising out of a governmental or proprietary function." Respondents argue from these authorities that all forms of immunity 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 ClaimsAct includes injury resulting from vmaliciousprosecution"; that the definition of "claim"includes negligent acts or ommissions; and that the definition of "employee" includes elected officials. InNo11 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 immunitywere merely two different terms used to describe the same thing. That,however, is not the case. They are different concepts and are supported by different considerations of public policy. Article 11, Section 18, 1972Montana Constitution did not abolish prosecutorial immunity. When a prosecutor actswithin the scope ofhis duties by filing and maintaining criminal charges he is absolutely immune from civil liability, regardless of negligence, 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 Storchv. Board of Dir. of East. Mont. Reg. FiveM.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 specificallyrefer to prosecutorial immunity and in light of Storchwe 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 immunitydoes not extend to the Department of Justice and the State of Montana. A similar argument was disposed of in Creelman v. Svenning, 67Wash.2d 882, 410 P.2d 606, 608: "Thepublic 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 performance of the duties which rest upon them; otherwise, the objectives soughtby immunity to the individual officerswould be seriously impaired or destroyed. If the prosecutor must weigh the possibilities of precipitating tort litigation involving the county and the state againsthis 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 untrammeled action by the prosecuting attorney outweighs the disadvantage to theprivate citizen in the rare instance where he might otherwise have an action against the county and state, either or both." The doctrinemust encompass the state and its agencies,aswell

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, 167Mont. 157, 536 P.2d 1182, 1185, 32 St.Rep. 581,we said: 

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## * a writ of supervisory control is proper here as the solemeans by which petitioner can avoid the substantial prejudice of being forced to defend a suit where, as a matter of law, liability 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 opinionwill constitute a writ of supervisory control for the guidance o 

# / / Chief Justice 

### / ,-.,We concur: I

Justices 

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