                                      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 , re-

l 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 com-

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 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
