NO. 92-345 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

EUGENE BRUE, 

Plaintiff and Appellant, 

-vsSTATE OF MONTANA and 

PARK COUNTY, MONTANA, - Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Jeffrey M. Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Eugene Brue, Pro Se, Livingston, Montana 

For Respondents: 

Betsy Brandborg, Special Assistant Attorney 

General, Risk Management and Tort Defense Division 

Helena, Montana 

Filed: 

Submitted on Briefs: March 25, 1993 

Decided: May 18, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the District Court of the First 

Judicial District, the Honorable Jeffrey Sherlock presiding. In an 

action originally heard by the Honorable Byron Robb in. Park County, 

the appellant Eugene Brue (Brue) lost and filed an action against 

the State of Montana and Park County alleging that their employees 

had violated BrueTs civil rights, and that Judge Robb had violated 

his oath of office; obstructed justice; committed conspiracy, 

collusion, deceit and malfeasance of office; and violated several 

rules of statutory construction. This action was dismissed by 

Judge Sherlock on the basis of judicial immunity. We affirm the 

judgment of the District Court. 

Since the filing of the briefs in this appeal, Brue has filed 

with this Court the following documents: a "Petition for Emergency 

Restraining Orderr1 on March 24, 1993; and on April 7, 1993, a 

"Notice of Exception" and a ?ISupplement to Petition for Writ of 

re vie^.^^ These matters were dismissed by separate order on April 

20, 1993. 

Brue, a pro se litigant, was prosecuted in Park County before 

Sudge Robb for violation of Park County zoning ordinances. Judge 

Robb found Brue guilty of the violations and permanently enjoined 

him from continuing to violate the ordinances. Brue failed to 

appeal the injunction order issued by Judge Robb, the appropriate 

remedy, and instead sued the State, filing an action in the First 
Judicial District before Judga Sherlock who ultimately dismissed 

the action. 

The complaint dismissed by Judge Sherlock challenged the 

constitutionality of both legislative and judicial immunity. It 

claimed that Brue was denied his right to a jury trial and alleged 

violations of the rules of statutory construction in I§ 1-2-101, 

-103, and -104, MCA. By order dated May 6, 1992, Judge Sherlock 

granted the State's Rule 12(b)(6), M.R.Civ.P., motion, dismissing 

Brue's complaint against Judge Robb on the basis of judicial 

immunity. 

The issue before this Court is whether Judge Sherlock's order 

of May 6, 1992, dismissing Brue's complaint with prejudice was 

proper. The new issues, such as the petitioner's claim that his 

property was taken without compensation, are not properly before 

this Court for consideration. This Court will not consider issues 

or theories of a case raised for the first time on appeal. Weaver 

v. Law Firm of Graybill, Ostrem, Warner & Crotty (1990), 246 Mont. 

175, 803 P.2d 1089; Montana Deaconess Medical Center v. Doherty 

(1990), 241 Mont. 243, 786 P.2d 669. 

In addition, we find, that Brue failed to request 

certification of the District Court's judgment as final, as Rule 

54 (b) , M.R.Civ.P., requires. See Roy v. Neibauer (1980) , 188 Mont. 

81, 610 P.2d 1185. We realize that Brue is appearing pro se; in 

the interest of judicial economy, we address the substance of his 

claims. 

As the State noted in its brief, it is well settled under 
federal common law that a judye is entitled to absolute immunity 

from a suit for money damages when acting within the scope of his 

or her official judicial capacity. Only if the judge's actions are 

outside his or her official capacity may the judge be liable for 

resulting damages. Mireles v. Waco (1991), - U.S. -, 112 

S.Ct. 286, 116 L.Ed.2d 9. The United State Supreme Court has held 

that a judgers shield of immunity remains intact even if he or she 

acted in error, with malice, or in excess of authority. Stump v. 

Sparkman (1978), 435 U.S. 349, 356, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 

331, 339. 

Brue's complaint against Judge Robb arose from the order he 

issued on January 29, 1992, enjoining Brue from using his property 

as a junk yard. As the issuance of the injunction was a "lawful 

discharge of an official duty associated with judicial actions of 

the court," Judge Robb has absolute immunity. Section 2-9-112 (2), 

MCA, states: IrA member, officer, or agent of the judiciary is 

immune from suit for damages arising from his lawful discharge of 

an official duty associated with judicial actions of the court." 

See Great Falls v. Price (1989), 238 Mont. 99, 775 P.2d 1260; 

Knutson v. State (1984), 211 Mont. 126, 683 P.2d 488. 

As for Brue's claim that Judge Robb violated his oath of 

office, obstructed justice, and committed conspiracy, collusion, 

deceit and malfeasance of office, such bald allegations of untruth 

are unsupported by the record. Nor is there support for Brue's 

claim that his civil rights were violated. Further, there is no 

right under the United States Constitution or the Montana 
constitution to a jury trial for an action in equity. 

To date Brue has filed numerous documents in this appeal. Of 

the matters raised in those documents the only issue warranting 

this Court's attention is his challenge to the First Judicial 

District Court's dismissal of the complaint. Other matters 

assigned by Brue are not properly before the Court. 

The State requests that we consider an award of sanctions to 

demonstrate that this Court will not tolerate the abuse recorded 

here. We conclude that with the signing of the original pleading, 

without even taking into consideration the other numerous documents 

he has filed in this one appeal alone, Brue clearly is in violation 

of Rule 11, M.R.Civ.P. However, after careful consideration of his 

pro se status and his litigation history in federal as well as 

state court, we conclude that a non-monetary sanction, in the form 

of a very stern warning, is appropriate. 

Brue is hereby warned that before initiating any further 

actions in this Court or a district court of this state, he must 

pay close attention to the pleading requirements of Rule 11, 

M.R.c~v.P, If any further action is commenced in state courts 

arising out of this same set of operative facts and based on the 

same or similar legal theories, Brue shall be subject to monetary 

sanctions as well as possible limits upon the filing of future 

lawsuits. 

The judgment of the District Court is affirmed. 

Pursuant to Section I, Paragraph 3[c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 
precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

We concu 

.,< 
May 18, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

EUGENE BRUE 

RTE 85, Box 4054 

Livingston, MT 59047 

DEE ANN G. COONEY 

Counsel for Park County 

UTICK & GROSFIELD 

P.O. Box 512 

Helena, MT 59624-0512 

BETSY BRANDBORG 

Special Assistant Attorney General 

Risk Management and Tort Defense Division 

Rm. 111, Mitchell Building 

Helena, MT 59620 

ED SMlTH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA