No. 13605 

IN THE 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 IN AND 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, IN AND FOR THE COUNTY OF 

DEER LODGE and the HON. ROBERT J. BOYD, JUDGE 

presiding. 

Respondents. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Relators: 

Garlington, Lohn and Robinson, Missoula, Montana 

Gary Graham argued and Sherman V. Lohn argued, 

Missoula, Montana 

For Respondents: 

Smith, Emmons, Baillie and Walsh, Great Falls, 

Montana 

Robert J. Emmons argued, Great Falls, Montana 

Submitted: December 6, 1976 

Filed: DF~ 2 - 575 

TliOiviAS J. /;;:~tizy 

Clerlc 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

These two original proceedings were consolidated by 

order of this Court dated November 15, 1976. They present the 

same issue for our resolution: Can the Attorney General, the 

Department of Justice, or the State of Montana be sued for 

malicious prosecution in a civil action for damages? 

On July 30, 1974, relators filed an information charging Gloria Eusek Carden with one count of grand larceny and 

two counts of forgery involving workmen'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 

in the first information was not refiled. After motion by 

Carden, the grand larceny count was dismissed by the district 

court for lack of probable cause. The remaining count of forgery was dismissed by the district court in the interest of 

justice upon motion by relators. 

On July 30, 1976, Carden filed a complaint against 

relators in the district court in Cascade County. Carden's 

complaint alleged that in filing the criminal charges against 

her, relators acted maliciously, negligently, without probable 

cause, and in violation of her civil rights. In response, relators filed a motion to dismiss the complaint arguing, among 

other things, that the claim against them was barred by the 

doctrine of prosecutorial immunity. Respondent district court 

in Cascade County heard arguments and denied the motion on 

November 10, 1976. 

On August 2, 1976, Frank Preite filed a similar complaint against relators in the district court in Deer Lodge 

County. This complaint alleged that relators acted maliciously, 

negligently, without probable cause, and in violation of Preite's 
civil rights by filing an information on July 31, 1974, charging him with three counts of grand larceny and one count of 

forgery involving workmen's compensation claims. Further damages 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 October 14, 1976. 

Relators appeared - ex parte before this Court on November 

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 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 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: 

"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. * * *" 

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 liability 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 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 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, however, 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 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. 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 Justice 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 performance of the duties which rest upon them; 

otherwise, the objectives sought by immunity to 

the individual officers would be seriously impaired 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 untrammeled 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, 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 opinion will constitute a writ of supervisory 

control for the guidance o 

/ / Chief Justice 

,-.,We concur: / I 

Justices y