IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 01-517
BARBARA MILLER,
Plaintiff/Appellant,
vs.
CITY OF RED LODGE, MONTANA,
Defendant/Respondent.
On Appeal from the Twenty-Second Judicial District Court
Carbon County, Montana
APPELLANT’S OPENING BRIEF
Robert L. Stephens, Jr.Jared Dahle
Southside Law Center Nelson Law Firm, P.C.
2910 Minnesota Avenue 316 North 25”’ Street
Billings, Montana 59101 Billings, Montana 59101
(406) 245-6182 (406) 867-7000
Attorney for Appellant Attorney for Respondent
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 01-517
BARBARA MILLER,
Plaintiff/Appellant,
vs.
CITY OF RED LODGE, MONTANA,
Defendant/Respondent.
On Appeal from the Twenty-Second Judicial District Court
Carbon County, Montana
APPELLANT’S OPENING BRIEF
Robert L. Stephens, Jr.Jared Dahle
Southside Law Center Nelson Law Firm, P.C.
2910 Minnesota Avenue 316 North 25”’ Street
Billings, Montana 59101 Billings, Montana 59101
(406) 245-6182 (406) 867-7000
Attorney for Appellant Attorney for Respondent
TABLE OF CONTENTS
Page
TableofContents
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Authorities . . . . . . . . . . . . . . . . . . . ii, iii, iv, v
Statement of the Case . . . . . . . . . . . . . . . . 1
Statement of-Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of Issues
1.Did the District Court err when it granted summary
judgment to the City, finding that the violations of Barbara
Miller’s constitutional rights were not actionable based
upon the application of the doctrine of judicial or quasi-
judicial immunity? . . 10
StandardofReview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Argument
Do the facts and circumstances of this case, as juxtaposed
against the claimed application of judicial and quasi-
judicial immunity, justify a reversal of the District Court’s
summary judgment ruling? . . . . . . . . . . 12
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Certificate of Service 30
Certificate of Compliance . . . . . , . . . . . . . . . 3 1
TABLE OF AUTHORITIES
Albright v. State by and through State
281Mont.196at205,933P.2d815at821~ . . . . . . . . . . . . . . . . . . . . . . . 11
Bradley v. Fisher
13-335,20 L.Ed. 646 (US 1871) . . . . . . 19
Caldwell v. LaFaver
928 F.2d 331
(9”‘Cir. 1991) . . . . . 15
Cainava v. Municipal Court
387U.S.523,87S.Ct. 1727,
18L.Ed.2d930(U.S.S.Ct. 1967) . . . . . . 25
Carl v. School District No. 7
247 Mont. 38,805
P.2d 522 (Mont. 1991) . . . . . . . . . . . 18
Clark v’. Eagle Systems, Inc.
279Mont.283,927P.2d995at997(Mont.1996) . . . . . . . . . . . . . . . . . . . 11
Dorwart v. Caraway, et al.
1998Mont. 191,290Mont. 196,966P.2d 1121 . . .
11,24,25,26,27,29
Embler v. Pachtman
424 U.S. 409 (U.S. S.Ct. 1976) . . . . . . . 22
Harlow v. Fitzgerald
457 U.S. 800 (U.S. S.Ct. 1982) . . . . . . . . . . . . . . . . . . . . . . 22
Hedges v. School District No. 73
248 Mont. 365,812
P.2d 334 (Mont. 1991) . . . . . . . . . 18
Holiday v. State
506
F.Supp 1317 (D.C. Mont. 1981) . 14, 15
Hewlett v. Rose
496 U.S. 356, 110 L.Ed.2d 332, 110 S.Ct. 2430,(1992)
. . 23
-ii.
State v. District Court
170 Mont. 15,550
P.2d 382 (Mont. 1976) . . . . . . . . . . . . 18
Stump v. Sparkman
435 U.S. 349 (U.S. s.ct. 1978) . . . . . . . . . . . . . . . . 22
Trout v. Bennett
252 Mont. 416,830 P.2d 81 (Mont. 1992) . . . . . . . . 14
Yates v.
Hoffnfan Estates
209F.Supp.757(D.C.111.1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Montana Code Annotated:
Title 2, Chapter 9, Part 1, MCA . .
Title 2, Chapter 9, Part 3, MCA .
$ 2-9-101(4),MCA............
32-g-102, MCA ..............
5 2-9-l 12(2), MCA ............
3 2-g-305, MCA
fj 2-g-305(2), MCA ............
9: 2-15-104,MCA.............
5 3-2-205(l), MCA ............
5 3-5-302(5), MCA
5 3-ll-102(2),MCA...........
$ 3-l l-103(1), MCA ............
5 46-5-101, MCA .............
5 46-5-221, MCA .............
5 46-5-226, MCA .............
Constitution Cites:
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1972 Montana Constitution, Article II,
5 11 .........................
20, 26
1972 Montana Constitution, Article II, 5 18 .......................12, 14, 17
1972 Montana Constitution, Article II, 5 24
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19
United States Constitution, 11”’ Amendment .........................14, 15
United States Constitution, 4”‘, 5”’ and 14”’ Amendments ...............22,26
Other Authorities:
Rule 56,M.R.Civ.P. ...............................................
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Rule 56(c), M.R.Civ.P. .............................................
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Title 42 U.S.C. 5 1983 ...........2,4, 5, 12, 13, 14, 15, 17, 19, 22, 23, 24,27
STATEMENT OF CASE
This is a dog bite case. It arises out of a dog bite incident on July 22, 1999,
when Gene Culver, the Appellant Barbara Miller’s landlord, traveled to Red Lodge,
Montana, ostensibly to inspect his rental premises. The unannounced inspection
resulted in a confrontation between Culver and Miller’s Akita dog, Mocha, which was
tethered in the backyard. Culver provoked the animal, took an aggressive
“blading”
position as if to strike the dog, and was bitten once on his hand causing serious
lacerations.
Culver sued Miller in District Court, filing his initial complaint in 1999 in Red
Lodge, Montana. By agreement ofthe parties, venue was transferred to Yellowstone
County and preliminary discovery revealed that both Miller and Culver had the same
homeowners liability insurance, Safeco, and Safeco had denied claims under both
parties’ policies.
As a consequence, Miller filed her Answer, Counterclaim and Third-Party
Complaint on 1121100, naming Culver, the insurance company, and the City
ofRed
Lodge. On 10/3/00, the City of Red Lodge filed Motion for Summary Judgment,
asserting that it was entitled to summary judgment on the plaintiffs due process
claims, equal protection claims, plaintiffs claim that the City ordinances were
unconstitutional and/or constituted double jeopardy and also that the City was entitled
to summary judgment on plaintiffs Title 42 U.S.C. $ 1983 civil rights claim. The
hearing on the City’s Motion for Summary Judgment was held on 1
l/l 5/00, but there
was subsequent briefing allowed. (Clk’s Dkt. 73-74-75.)
On 1211
l/00, the District Court entered an Order and Memorandum granting
in part and denying in part the City’s Motions for Summary Judgment. (App. 2, Clk’s
76.)
In connection with Miller’s Title 42 U.S.C. $ 1983 claims, the Court found that
there were material issues of fact. The Court stated that:
“
there are questions regarding whether Miller was deprived of a
constitutional right. The question of whether removal of Mocha was
unreasonable, in light of the facts alleged by Miller, must be answered
to,allow an exparte
.‘I (App. 2, p. 13.)
The Court concluded that there were fact issues surrounding whether or not the
City of Red Lodge had an unwritten policy resulting in the selective or retaliator
.,,~
when attempting to seize Mocha without a search warrant.
The City of Red Lodge moved for a bifurcation from the insurance company’s
and Culver’s case, and also asked that venue be returned to Carbon County. (Clk’s
Dkt.
29,36.) This application was granted (Clk’s Dkt. 39). Discovery deadlines were
extended and additional depositions were taken. (C/k’s Dkt. 77-78.)
On 319101, the City filed its Second Motion for Summary Judgment. On
413010 1, the plaintiff responded and renewed a Cross-Motion for Summary Judgment,
and hearing was held on
5/2/O 1, on the parties’ respective positions. (Clk’s Dkt. 79-
80, 95, 97, 99.) After the hearing, and receiving additional evidence, the Court
allowed supplemental
brieting.on the parties’ respective summaryjudgment motions.
(Clk’s Dkt. 100.)
During the
pendency of the Court’s ruling on summary judgment, the plaintiff
attempted to compel the City to mediate (Clk’s Dkt. 104), however, the City opted out
of the mediation. The claims of Miller, Culver and the insurance company were
5/14/01, the District Court Judge entered its order denying plaintiffs
Motion for Summary Judgment and granting the defendant City of Red Lodge’s
Motion for Summary Judgment. The Court stated that it had erred in its earlier
summary judgment determination that there were material issues of fact which
3
precluded summary judgment. This was based upon the Court’s conclusion that the
City’s Second Motion for Summary Judgment invoking the defenses of judicial
immunity and quasi-judicial immunity, rendered a fact determination inappropriate.
(App. 3, p. 4, 6-8.)
The Court explained its ruling by asserting that a prosecutor is immune from
a civil suit for damages under
$ 1983 as long as his acts
“. were committed in
performance of an integral part of the judicial process.”
The Court found that the city
attorney was cloaked with “. absolute quasi-judicial immunity
.” (App. 3, p. 6.)
In connection with the plaintiffs claim that the City Court lacked jurisdiction
to issue the exparte order of seizure, the Court found that it was “. . . . undisputed Red
Lodge City Judge Anderson acted in her judicial capacity when signing the exparte
“. did not act
in clear absence of all jurisdiction
.” (App. 3, p. 8.)
The District Court, in dealing with the quasi-judicial immunity afforded
Reisc/or;ffv.
Comty oj
Yellowstone, 296 Mont. 525, 989 P.2d 850 (1999). (App. 3, p. 8.) The Court, in
granting the City’s summary judgment and denying Miller’s, stated that:
4
claim with certain credible facts . . .” The “. . . alleged civil rights violations were not
groundless in this case.” (App. 4, p. 3.)
The City, having previously entered its Notice of Judgment (App.
12), the
plaintiff Miller timely filed her Notice of Appeal. (App. 13, Notice of Appeal,
6/l 210 1.) This matter is now properly before the Court for review.
STATEMENT OF FACTS
To the extent that any
ofthe preceding observations contained in the Statement
of Case also constitute fact statements, they are hereby adopted by reference. The
best narrative and distillation of the depositions and record made below, is found in
Appellant’s Exhibit 10, the report of expert witness Sherry
Wallis, which was filed
with the Court on 512510 1, in connection with the Plaintiffs Motion to Reconsider
Summary Judgment.
Not only does the report contain an excellent description of the Akita breed of
dog, it also contains a detailed review of the depositions and evidence that had been
developed in connection with Barbara Miller’s claims.
The neighborhood had a bias and/or dislike for tenants renting Culver’s
condominium. (App. 10, p. 2.) In addition, it appeared that the City of Red Lodge
would respond to Miller’s neighbors’ complaints about her dog, but would not
respond to Miller’s complaints about her neighbors’ dogs. (App. 10, p.
3,6; also see,
6
Attorney prepared a three-count complaint which was signed in the presence of the
City Judge, and also made application for an expnvte Order authorizing the City of
Red Lodge Police Department (no named officer) to immediately seize Miller’s dog
and impound it at her expense. (See Complaint and Order, Red Lodge City Court
7123199, App. 6.)
Both City of Red Lodge police officers knew that the Order did not comply
with the requirements for a search warrant, and were suspicious of the Order because
they had never seen anything like it before. It was established that the Order of
Seizure was to be served upon Miller’s residence at night, the day after the dog bite
incident. (App. 7, 12/8/00 depo., Sgt. Cope, p. 13, 15.)
Sgt. Cope described the circumstances of the service of the Order and
acknowledged that “. .
six years as a police officer, he’d never seen one like it. Sgt. Cope acknowledged that
the Court Order signed by the City Judge did not allow Barbara the opportunity to
take the dog to a vet of her choice, and that she really didn’t have any alternative as
to where the dog would be taken. (App. 7, Tr. Sgt. Cope, pp. 25-26.)
In connection with the actual service of the Order and Sgt. Cope’s
understanding
ofthe requirement for a search warrant, he testified that the order could
be served day or night and because of his concern he called the city attorney. Part of
8
that concern was his understanding that the order required the seizure of property. He
stated that he knew that a search warrant was ordinarily required to seize evidence or
the instrumentality of a crime. He understood that he was required to do an
application for a search warrant and that the search warrant had to set forth sufficient
facts to establish probable cause, and that it had to be presented to a magistrate.
(App. 7, Tr. p. 29.)
Testimony of Officer Orthman also revealed that Mr. Culver had not told the
truth about the dog attack taking place off the property. (App. 8, pp. 3
1,33 .) Officer
Orthman indicated that even if he had known that Culver’s statements were untrue,
he probably would have gone ahead with the execution of the order because the fact
of the dog bite was enough for the seizure of the animal. Officer Orthman indicated
also that as the responding officer, he felt that he had enough information and did not
attempt to interview Barbara Miller or anyone else. (App. 8, Tr. pp. 33-34.)
In connection with the search warrant issue, Officer
O&man testified that he
did not make application for or receive a search warrant even though he knew from
his training that one was required to seize evidence of a crime or the instrumentality
of a criminal offense. Officer Orthman also established that there were no exigent
circumstances that would justify the warrantless entry into or upon Barbara Miller’s
residential property, and that there was a magistrate available and accessible on the9
date that the officers attempted to seize the Akita. (App. 8, Tr. pp. 37-38.)
Barbara was told that she would be financially responsible for the dog’s board
and maintenance pending outcome
ofthe criminal charges. The decision by Barbara
to have Mocha euthanized was not voluntary, but made because she couldn’t afford
the bond and the cost of boarding. She requested alternative boarding arrangements
and she was denied this opportunity. (App. 9, Tr. pp. 59, 60, 61-65.)
Barbara Miller also articulated the specific basis for violation of her civil
rights. She stated that the police should have conducted an investigation to get her
side of the story. She also objected to the language of the City dog ordinance that
equated maintaining a vicious dog to having the dog run away. (App. 9, Tr. pp. 76,
The actual incident itself is described in earlier depositions of Barbara Miller and
Gene Culver. Those depositions were submitted, in their entirety, to the District
Court.
(Clk’s Dkt. 73.)
date that the officers attempted to seize the Akita. (App. 8, Tr. pp. 37-38.)
Barbara was told that she would be financially responsible for the dog’s board
and maintenance pending outcome
ofthe
ruling is de novo. The Court will use the same Rule 56,
criteria as the
District Court. Clark v. Eagle Systems, Inc., 279 Mont. 283, 927 P.2d 995 at 997
(Mont. 1996) [cites omitted]. A party seeking summary judgment must ordinarily
establish the absence of any genuine issue of material fact which would allow the
nonmoving party to recover an entitlement to judgment as a matter of law. (Rule 56
M.R.Civ.P., Clark, 279 Mont. at 283, 927
P.2d at 997-998 [cites omitted].)
Ordinarily, the Supreme Court begins review in a summary judgment case by
determining whether the moving party established the absence of disputed material
fact issues. (See Montana Metal Building, Inc. v. Shapiro, 283 Mont. 47 1 at 475,942
P.2d 694 at 696-697 (Mont. 1997))
However, where material facts are undisputed or where the parties’ assertions
of error relate only to the District Court’s conclusions of law regarding entitlement
to summary judgment regardless of disputed facts, this Court will review the District
Albright v. State by and through State, 281 Mont. 196 at 205, 933
P.2d 815 at 821
[cites omitted] and Donvart v. Caraway, et al., 1998 Mont. 191 at 1
P.2d 1121 (Mont. 1998).
11
ARGUMENT - ISSUE NO. 1
Do the facts and circumstances of this case, as juxtaposed against the
claimed application of judicial and quasi-judicial immunity, justify a
reversal of the District Court’s summary judgment ruling?
It is the position of Miller that there is no quasi-judicial immunity under the
facts and circumstances of this case, and further, that as a matter of law, there has
been a waiver of sovereign immunity in connection with the conduct asserted as the
basis of Miller’s claims in this case. In addition, the issuance of an order in excess
of jurisdiction, and the seizure of property pursuant to an invalid process, is a
question of law that the Court must determine in favor of the plaintiff.
Part I: Waiver of Sovereign Immunity and State Statutory Scheme
fol
Indemnity under 42 U.S.C. 5 1983, et seq. Claims
The State of Montana, by virtue of its 1972 Constitution, has abrogated the
strict limitations of sovereign immunity. The broad language of Montana’s
constitutional provisions specifically recite that the State is subject to suit. Article II,
5 18 entitled “State subject to suit” provides that, “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 broad blanket waiver of immunity has been implemented for purposes of
the federal Civil Rights Act liability under express statutory authority of Title 2,
12
Chapter 9, Part 1, Montana Code Annotated. That legislative policy is entitled
“Liability exposure of governmental entities.” Section 2-g-305, MCA, entitled
“Immunization defense and indemnification of employees,” provides that any
employee of the State is to be indemnified under certain circumstances in a
noncriminal action. This is consistent with the provisions of $ 2-g-102, MCA, that
provides that, “Every governmental entity is subject to liability for its torts and thoseof its employees acting within the scope of their employment or duties whether
arising out of a governmental or proprietary function . .
.” In essence, what the
legislature of this state has done has been to designate the governmental entity as a
substitute defendant for the individual employees. As a consequence, the actions of
municipal employees subject that agency to tort liability under the Montana statutory
and constitutional scheme.
The blanket waiver of sovereign immunity under the legislative scheme is
made specifically applicable to 42 U.S.C.
$ 1983 claims. Section 2-g-305(2), MCA,
provides for indemnification for “alleged violations of civil rights pursuant to 42
U.S.C. 5 1983 or other actionable conduct of the employee committed while acting
within the course and scope of the employee’s office or employment, the
governmental entity employer shall defend the action on behalf of the employee
” The clear import of Montana’s statutory scheme is that the governmental entity
is a proper party defendant in connection with 9 1983 claims.
The Federal District Court, in construing Article II, 5 18 of the Montana
Constitution, and Title 2, Chapter 9, Part 3, held that a former state employee could
sue the state for violations of his civil rights while he worked for the state. The Court
reasoned that under
$
2- 15- 104, MCA, the Department of Institutions, the plaintiffs
former employer, was held to be an alter ego of the state and not the sort of separate
corporate entity held to be a citizen for purposes of federal diversity.
The reviewing
federal court, in applying Montana law, concluded that
5
2-g-305, MCA, was
intended to facilitate suit against the sovereign and its employees, and that there was
no evidence in that section of an intent to impart immunity to state officials as
individuals in a federal civil rights suit under 42 U.S.C. 5 1983. (See Holiday v.
506 F.Supp. 1317 (D.C. Mont.
This is consistent with other appellate decisions involving the Montana
statutory scheme.In Trout.v. Bennett, 252 Mont. 416,830 P.2d
1992), it
was held that it is sufficient to establish personal liability under 42 U.S.C.
$ 1983 by
showing that an official acted under color of state law and caused deprivation of a
federal right. Further, the Eleventh Amendment to the U. S. Constitution does not bar
such suits, nor are state officials absolutely immune from personal liability solely by
14
The 9’” Circuit, in dealing with an action against the Department of Social and
Rehabilitation Services, and specific social workers who removed children from the
family home and sent them to another state, held that under the Montana scheme the
employees were not absolutely immune from suit because their actions were neither
quasi-prosecutorial nor quasi-judicial in nature. The social workers were entitled to
Caldwell v. LuFuver, 928
F.2d 33 1 (9”’ Cir. 1991).
The Montana Supreme Court has reiterated that the Eleventh Amendment
immunity of the state from suit does not apply to state officials as individuals in a
federal civil rights suit under 42 U.S.C. 3 19S3.
CitingHolidayv. State, 506 F.Supp.
1317 (D.C. Mont. 1981) and King v. State, 259 Mont. 393, S56 P.2d
Based upon the Montana statutory scheme, there is no absolute immunity ofthe
municipality to suit under the Federal Civil Rights Act in state court.
Part II: No Absolute Judicial Immunity (Absence of Jurisdiction and
Invalid Search Order)
The Municipality’s and District Court’s reliance on
Reisdorffv. Cozmty of
Yellowstone, 989 P.2d 850 (Mont. 1999) is misplaced. Reisdorff is distinguishable
because, in that case, the order being complained of was one that was requested by
the County Attorney’s Office after the plaintiff and State had entered into an
agreement that required Reisdorffto meet certain conditions. This written agreement
was the subject of the Justice Court’s entry on an earlier order, and was pursuant to
the consent of Reisdorff in connection with resolution of criminal charges. By the
very terms of the Reisdorff opinion, the order was issued because of the difficulty in
enforcing the prior agreement entered into by the parties that had been reduced to a
Reisdorffconcluded
that the Justice Court was not
acting in the “clear absence of all jurisdiction.” The Court stated that:
“In this case, when the justice of the peace issued his June 3, 1993 order,
he was clearly acting in his judicial capacity. The effect ofhis order was
to prohibit Reisdorff from continuing to violate his previous order
issued on August 27, 1992, which required Reisdorff to feed and care
for her animals. The Justice of the Peace also had
iurisdiction because
Reisdorff aereed to abide bv certain conditions in exchange for the
State’s dismissal
ofits charge ofanimal cruelty.” [Emphasis added.] 989
P.2d 850, 1999 Mont. 280 at 7
P.2d 850, 1999 Mont. 280 at 135.
The Court also noted that Reisdorff
“. did not argue that the order was
facially invalid.” Id. at 136. The
Reisdorfldecision is clearly distinguishable, both
16
on a factual and legal basis, to Miller’s claims in this case.
As a threshold issue, it should be pointed out that the Miller’s Complaint is not
limited to a Title 42 U.S.C.
3 1983 Civil Rights Claim. Although such a claim does
constitute a constitutional tort, Miller’s allegations go well beyond that limited claim.
Miller’s Complaint asserts a number of statutory violations by the governmental
entity and its employees; and, also, sets forth various state tort claims, including
constitutional torts under the Montana Constitution. (See App. 11.) However, the
Motion for Summary Judgment of the City was limited solely to a claim of judicial
immunity or quasi-judicial immunity. As a consequence, this brief will address only
that claim.
As already noted, the State
ofMontana has abolished the concept ofsovereign
immunity, and the Legislature has enacted a Comprehensive Liability Exposure
Insurance Coverage plan which specifically acknowledges that ‘I. . . 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. .‘I ($ 2-9-102, MCA). The purpose of the
statute was to comply with the constitutional mandate under Article II, Section 18,
of the Montana Constitution, which provides that: “The state, counties, cities, towns
and all other local governmental entities shall have no immunity from suit for injury
to a person or property. . .”The Legislature defined personal injury under $ 2-9-
10 l(4), in a broad fashion, to include torts of libel, slander, false arrest, malicious
$3,000,000 limit. (Clk’s Dkt. 99). The Montana Supreme Court has
held in a long line of cases that a governmental entity is deemed to have waived its
immunity to the extent of coverage granted by an insurance policy.
Carl
v,. School
DistrictNo.
7,247Mont38,805 l’.2d522(Mont.
1991), followedinMz@?yv. State,
P.2d 16 (Mont. 1991); Hedges v. School District No. 73, 248
Mont. 365, 812 P.2d 334 (Mont. 1991).
The Montana Supreme Court,
§ 2-9-2 11, MCA, which authorizes
political subdivisions of the state to secure insurance, found that this manifested a
legislative intent that a political subdivision should be responsible for the torts of its
employees. State v. District Court, 170 Mont. 15, 550 P.2d 382 (Mont. 1976).
The District Court
5 2-9-l 12(2), MCA. A judge’s immunity is limited to a claim for ‘I. . . damages
arising from his lawful discharge of an official dutv associated with judicial actions
18
of the court.” [Emphasis added] This limited grant of immunity is consistent with
the waiver of sovereign immunity under Article II, Section 24, of the Montana
Constitution. By the terms of the limited immunity statute, if a damage claim arises
out of an unlawful discharge of a judicial function, or if it exceeds the official duty,
i.e., is an act in excess ofjurisdiction, the judicial officers do not enjoy the protection
of the limited grant of immunity.
The federal courts have been willing to hold judges amenable to the Civil
Rights Act when they perform what is characterized as a non-judicial function. For
example, a federal court held a judge liable under Section 1983 when he directed a
police officer to arrest and take into custody a person not named in a warrant. This,
said the court, was “non-judicial” action. Yates v.
Hoffan Estates, 209 F.Supp. 757
(D.C. Ill. 1962);
Pickingv. Petmsylvania
Railroad Company, 15 1 F.2d 240, rehearing
denied, 152 F.2d 753 (3rd Cir. PA 1945);
McSha~e v. Moldovan, 172 F.2d 1017 (6th
Cir.
Mich. 1949).
The defense of judicial immunity does not afford any protection to a judge
acting in clear absence ofjurisdiction. Bradley v. Fisher, 13
335,20 L.Ed. 646
(US 1871); Manningv.
Ketcham, 58 F.2d 948 (6th Cir. 1932); Lynch v. Johnson, 42~0
F.2d 818 (6th Cir. 1970). In the instant case, the issuance of a Search and Seizure
Order in the name of the municipality, arising out of a criminal complaint was an act
19
clearly in excess of the Municipal Court’s jurisdiction. Under any constitutional
interpretation, seizure orders cannot be initiated against an individual without
5 11, specifically protects citizens from
unreasonable searches and seizures. Under the provisions of $
3- 1 l-
MCA,
a city court has concurrent jurisdiction with the Justice of the Peace for purposes of
making application for search warrants and issuance of search warrants. Similarly,
a city court has exclusive jurisdiction over proceedings for violation of an ordinance
of the city or town. (See $ 3-1 l-103(1), MCA.) Further, Municipal Courts do
not
have inherent equitable jurisdiction to issue Orders of Seizure or authorizing the
impoundment of property. This is original jurisdiction of an injunctive nature or of
a remedial nature that is exclusively reserved to the District Courts. Section 3-5-
302(5), MCA, provides that: “The district court and its judges have power to issue,
hear and determine injunction, other original remedial writs and all writs of
habeas corpus
“
$
3-2-205(l), MCA, which
allows the Montana Supreme Court to grant an injunction or order or writ pending an
appeal to the Supreme Court.
As a consequence,
the~only authority that the City Court would have had was
20
to issue, upon proper application, a search warrant for the seizure of the plaintiffs
animal. The statutory search and seizure requirements are found at § 46-5- 10 1, MCA.
That section provides that: “A search of a person, object or place may be made and
evidence, contraband and persons may be seized in accordance with Title 6 when a
search is made: (1) by the authority of a search warrant; or (2) in accordance with
judicially recognized exceptions to the warrant requirement.” In this case, there are
no judicially recognized exceptions that are applicable.
Under
S 46-5-221, MCA, a search warrant may only issue to a designated
person upon application, in writing under oath, that sets forth facts sufficient to
support probable cause to believe that an offense has been committed, and also states
facts sufficient to support probable cause to believe that evidence or contraband may
be found, and that particularly describes the place, object or persons to be searched,
and particularly describes what is to be seized. (See
3 46-5-221, MCA.) The
not contain the requisite material required by statute. The Order of July 23, 1999, by
Carole Anderson, simply directs, “The Red Lodge Police Department . .
,” to “,
immediately seize the defendant’s dog. .” (App. 6.) Clearly, a search warrant could
have authorized the seizure of plaintiff’s dog, but the service of the search warrant “.
must in all cases be served by the peace officer specifically named and by no other
21
person . . .” (See 5 46-5-226, MCA.)
The United States Supreme Court has expressly found that where there is a
Embler v.
Pachtman, 424 US 409 at 430 (U.S. S.Ct.
the U. S. Supreme Court affirmed
a finding that both judges and prosecutors can be liable in
5 1983 actions for conduct
beyond the jurisdictional limits of their office.
Neither Montana statute nor federal law recognize an absolute judicial
immunity. At best, there is a qualified immunity available for a judicial officer acting
within the scope ofhisjurisdiction.
InHarlo>v v. Fifzgerald, 457 U.S. 800 (U.S. S.Ct
1982), the Court made clear that $ 1983 defendants with a qualified immunity claim
would be liable for damages when their conduct violated clearly established federal
law. The Fourth, Fifth and Fourteenth Amendments to the United States Constitution
$1983 liability,
judicial officers are liable for acts made in excess of their jurisdiction. In addition,
the City Court’s effort to grant affirmative and restraining injunctive relief does not
22
Even if the City is correct in its interpretation of state definitions of judicial
immunity, i.e., that it provides an absolute immunity, that would require a conclusion
that state law more broadly defines immunity than the Supreme Court does under
federal immunities for
$1983 claims. The U. S. Supreme Court, however, has made
it clear that state immunity doctrines do not limit
§ 1983 actions brought in state
court. In the U. S. Supreme Court decision in
Martinez v. Cnlifoka, 444 U.S. 270
(U.S.
S.Ct. 1980) the survivors of a young girl murdered by a parolee sued state
parole officials under $ 1983 in state court. Under California law, the defendants had
absolute immunity, and they argued that the California immunity statute also applied
9 1983 claim. In addressing the § 1983 immunity issue, the court stated that
state immunity is not controlling. The court’s opinion recited that:
“Conduct by persons acting under
colour of state law which is wrongful
under 42 U.S.C. 5 1983 . . cannot be immunized by state law. A
construction of the federal statute which permitted a state immunity
defense to have controlling affect would transmute a basic guarantee
into an illusory promise; and the supremacy clause of the constitution
insures that the proper construction may be enforced. . . The immunity
claim raises a question of federal law.”
Id. at 284.
The Montana Supreme Court has expressly recognized that an immunity
defense, which would not be available in a federal court action, is similarly
unavailable as a defense in an action brought under 42 U.S.C. $ 1983 in state court.
The Montana Supreme Court referenced the U. S. Supreme Court decision in
Hewlett
23
L.Ed.2d 332, 110 S.Ct. 2430 (U.S. S.Ct.
for the
proposition that a state immunity defense is not available in a Section 1983 action
brought in state court where the same defense would not be available if the action
were brought in federal court. (See
S.M. v. R. B., 24s Mont. 322, 811
1295,48
St.Rptr. 453 (Mont. 1991).)
The Montana Supreme Court decided issues similar to those raised in this case
in a lengthy decision entered in
Dov?vnrt et al. v. Camway et al., 966 P.2d
Dorwart sued the Stillwater County Sheriff and his deputy for executing a levy
against his personal property and entering his home. The Sheriffwas acting pursuant
to a post-judgment execution. Dotwart raised various constitutional claims under
$ 1983. The Sheriff
claimed qualified immunity in connection with Dommrt’s search and seizure claims.
District Judge Colberg granted partial summary judgment in favor of the
deputies on the constitutional claims and also found that Montana’s post-judgment
execution statutes were unconstitutional because they failed to provide due process
(no Notice).
The Supreme Court in its decision acknowledged the position
ofthe county that
II
writs of execution constituted judicial authorization . .,‘I discussed the county’s
24
: ““^
reliance upon Ramsey v. Burns, 27 Mont. 154, 69 P. 711 (Mont. 1902), where the
defendant in that case prevailed not only against the police officer, but also the Justice
of the Peace who issued a writ of execution for seizure of-property. The Court
distinguished
Ramsey by properly identifying that the Ramsey case was based strictly
on tort claims and did not deal with constitutional issues. (Do~al-r, 1998 Mt. 19 1 ,I
24 at Page 9 of Op..)
The Supreme Court then discussed the various cases that the county was
”immunized the county from
liability for the action of its Sheriffs officers. The Montana Supreme Court
distinguished each of those cases and concluded that (based-in part upon the U.S.
Supreme Court holding in
Court, 387 U.S. 523 at 528, S7 S.Ct.
1727, at 1730, 18 L.Ed.2d 930 at 935 (U.S. Supreme Court 1967)) that without any
showing of probable cause, the service and enforcement of the writ of execution
violated the constitutional rights of
Dopwart and ‘I. other judgment debtors under
similar circumstances.”
(Domar?, 1998 MT 191,q 47, at Page 22 [general discussion
of C’nn~ar-a appears in 7
143, Pages 16 to 19 of Donval-t opinion]
.)
As a consequence of the Dorwart decision, Stillwater County was found to be
liable for the conduct of its police officers in serving and implementing (according
to the Montana statutory scheme) civil post-judgment process which was violative of
25
‘I. ~. . were judicially
approved by the Stillwater County Justice
ofthe Peace .‘I the Court concluded that
there could be no valid judicial approval where there was no showing of probable
cause. The Court stated that Montana law requires a judge or magistrate to evaluate
a warrant application and make an objective determination whether an intrusion into
the privacy
ofthe individual is reasonable andjustified under the circumstances. The
Court stated that, “A judge may issue a search warrant only upon written application,
made under oath or affirmation which states sufficient probable cause for authorizing
the search.”
(Dor~ar-t, 1998 MT 199, at Page 23 of Op.)
One notable similarity between the facts in this case and the facts in the
Domwt case is that the Stillwater County Justice of the Peace actually signed the
judicial authorization. In this case, it is undisputed that there was judicial
Donvnrt, 1998 MT. 19
l,n 5 1 at Pages 23-24.) The Court concluded that under those
circumstances, the county was liable for violations ofthe Plaintiffs’ rights, both under
the Fourth Amendment to the United States Constitution and Article II, 5
11 of the
Montana Constitution. The Court then reversed Judge Colberg’s decision on this
summary judgment. The Court also went on to reverse Judge Colberg based upon his
26
erroneous conclusion that the privacy rights of the plaintiff were not violated by the
Stillwater County Sheriffs officers. (See Domart, 1997 MT.
191,156-57, at Pages
26-27; also see Donvart, 1998 MT 19 l,B 60, at Page 28.)
The Montana Supreme Court then addressed the claims of the Sheriff and the
deputy sheriff that they were entitled to qualified immunity from individual liability
Down&s 42 U.S.C. S 1983 claims. The Court held that: “. The district court
erred in applying qualified immunity in the context of Dorwart’s due process claim.”
(Dorwnr.t, 1 107, at Page 5 1.)
This observation in Domart is consistent with other decisions
ofthe Montana
Supreme Court reversing summary judgment rulings in connection with law
enforcement misconduct. In Scott v. Henvich, et al, 288 Mont. 489, 958
P.2d. 709
(Mont. 1998), the plaintiff had appealed a grant of summary judgment against her
where the District Court determined that Silver Bow County police officers acted
reasonably as a matter of law. The Montana Supreme Court reversed stating that the
District Court acted improperly and that there were genuine issues of material fact.
The Montana Supreme Court has specifically and without equivocation strictly
construed the jurisdictional authority of courts of limited jurisdiction.In Potter v.
District Court,
880 P.2d 13 19, 266 Mont. 384 (1994), the plaintiffs were attacking
the issuance of a search warrant by a substitute Justice of the Peace, who was not
27
currently certified under the Supreme Court rules. The substitute J.P. had served as
a Justice of the Peace, and the issue of his qualifications to act as a Justice of the
Peace, i.e., prior training and experience, were not at issue. The Montana Supreme
Court, in observing that the calling in of the substitute J.P. failed to follow the
statutory procedures, also indicated that this was more than a “technical error.”
The
Court concluded that the failure to follow the procedures was a jurisdictional error
that went to the very heart ofjudicial power. The Court concluded that: “Unless the
procedures
require~d by those statutes and the Commission Rules are followed, then
no substitute justice is appointed, and the person seeking to exercise the powers of
a judge as his substitute has no authority or jurisdiction to do so.” Potter v. District
Court, 1 10,266 Mont. at 393. The clear implication of the decision in Potter is that
where there is a statutorily mandated process for the issuance of a search warrant and
that process is not followed, the judicial officer purporting to deviate from it, does not
have jurisdiction to act. Id. This Court then concluded that the search warrants at
issue “. were void ab initio, of no force or effect, and provided no authority under
which the authorities could search the defendants’ property and seize evidence.” Id.
Based upon the record in this case, there was no authority for the City Court’s
Order, and judicial and quasi-judicial immunity do not apply. The decision of the
District Court should be reversed.
CONCLUSION
Donvart,
squn, Miller’s claim should not have been barred by the application of the doctrines
of judicial or quasi-judicial immunity.
In addition, the ordinance, as applied and made, and process employed by the
Municipal Court and City of Red Lodge Police Department, were constitutionally
flawed, and Miller should be allowed to maintain a claim for damages for violation
of her rights. The decision of the District Court should be reversed and remanded
with appropriate instructions.
RESPECTFULLY SUBMITTED this
2
d
~ day of December, 200 1.
IDE LAW CENTER
/ &&u
Robert L. Stephens, Jr.
Attorney for Appellant
ii
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Appellant’s Opening Brief was
served by first class mail, postage prepaid, upon the attorney for the Respondent, this
& day of December 200 1, addressed as follows:
Jared Dahle
Nelson Law Firm, P.C.
3 16 North 25”’ Street
Billings, MT 591
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 27 of the Montana Rules ofAppellate Procedure, I certify that
this brief is printed with a proportionately spaced Times New Roman text typeface
of 14 points; is double spaced, and the word count c,alculated by Core1 WordPerfect
8 for Windows, is 6755 words, not averaging more than 280 words per page,
excluding Certificate of Service and Certificate of Compliance.
d”
DATED this & day of Dece
SOUTHSIDE LAW CENTl+R
’