                                          No. 02-541

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 306N


C. K. DREW,

              Plaintiff and Appellant,

         v.

RICHARD A SIMONTON, LORRAINE SCHNEIDER,
RICHARD PHILLIPS, ROBERT A. JENSEN, MARC
SPEER, ROBERT GUNSCH, GINA ZERR, CHARLES
HAWKINSON, TERRY HAWKINSON and JOHN HAWKINSON.

              Defendants and Respondents.



APPEAL FROM:         District Court of the Seventh Judicial District,
                     In and for the County of McCone,
                     The Honorable John Warner, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     C. K. Drew (pro se), Circle, Montana

              For Respondents:

                     Michael King, Special Assistant Attorney General, Risk Management and
                     Tort Defense Division, Helena, Montana


                                               Submitted on Briefs: November 26, 2002

                                                            Decided: December 12, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1      Pursuant to Section I, Paragraph 3(c), of the Montana Supreme

Court 1996 Internal Operating Rules, the following decision shall

not be cited as precedent but shall be filed as a public document

with the Clerk of the Supreme Court and shall be reported by case

title,    Supreme     Court     cause    number,     and   result,   to   the   State

Reporter Publishing Company and to West Group in the quarterly

table of noncitable cases issued by this Court.

¶2      The Appellant, C. K. Drew, filed a pro se complaint against

the Honorable Richard Phillips in the District Court for the

Seventh Judicial District in McCone County, in which he alleged

Intentional and/or Negligent Infliction of Emotional Distress and

Conspiracy to Commit and/or Permit Legal Malpractice.                           Judge

Phillips filed a motion for summary judgement which was granted by

the District Court.          Drew appeals from the order granting summary

judgment.      We affirm the judgement of the District Court.

¶3      The sole issue on appeal is whether the District Court erred

when it found that there was no genuine issue of material fact and
concluded that Judge Phillips was entitled to judgement as a matter

of law?

                      FACTUAL AND PROCEDURAL BACKGROUND

¶4      This case arose from the probate of Woodrow Hawkinson’s

estate.     Hawkinson, C. K. Drew’s former business partner, died on

March 16, 1998, and his estate was probated by Judge Richard

Phillips of the Seventh Judicial District Court in Cause No. DP

9804.    The events that transpired during the administration of the


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estate are unclear and for the most part irrelevant to the issue

before this Court.         Simply put, Drew was not satisfied with the

manner in which the Estate of Hawkinson was handled and suspected

that there was a conspiracy to ignore Hawkinson’s wishes and steal

what had been willed to Drew.

¶5   Drew filed a complaint on February 7, 2001, in which he named

Judge     Phillips    as   one     of    many   defendants.        The   personal

representative of the Estate of Hawkinson, Richard A. Simonton, was

also named as a defendant in the complaint.                   In Drew’s cause of

action for Intentional and/or Negligent Infliction of Emotional

Distress, he alleged that Judge Phillips used his position of power

maliciously to cover Simonton and the other defendant’s attempts to

steal estate property.           In his cause of action for Conspiracy to

Commit and/or Permit Legal Malpractice, Drew alleged that Judge

Phillips had a conflict of interest in the case, made slanderous

and false statements about Drew and Drew’s son, and conspired with

Simonton to cover up illegal and unethical behavior surrounding the

probate of the Estate of Hawkinson.
¶6   In response to these allegations, Judge Phillips filed a

motion for summary judgment based on the doctrine of judicial

immunity on March 12, 2001.             The supporting affidavit stated that,

at all times relevant to Drew’s complaint, Judge Phillips was a

Seventh    Judicial    District         Court   judge.   He    stated    that   his

interaction and contact with the other named defendants, Drew, and

Drew’s son, occurred in his capacity as a judge, in chambers or in

court, and was limited to conducting hearings and issuing orders



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concerning the Estate of Hawkinson.         Furthermore, he stated that he

had no contact with any of the parties involved with the Estate of

Hawkinson, or subject to Drew’s complaint, outside of court, or

without all parties present.

¶7    On April 2, 2001, Drew filed a brief in response to Judge

Phillips’ motion for summary judgment.           He asserted that the judge

was not immune from liability because he had acted unethically and

illegally when he conspired with Simonton to cover their illegal

conduct and prolonged the expense and time of his litigation.              Drew

also asserted that Judge Phillips refused to follow the law and the

terms of Hawkinson’s will in his ruling.             Therefore, he requested

that the District Court punish Judge Phillips and impose damages.
¶8     The District Court granted Judge Phillips’ motion for summary

judgment on October 12, 2001.        The court found that the undisputed

evidence indicated that Judge Phillips’ only connection with Drew,

the   other   alleged    conspirators,     the   case,   and    the   Estate   of

Hawkinson,    was   in    his   capacity   as    a   district    court   judge.

Therefore, the court concluded that Judge Phillips was entitled to

dismissal of the complaint against him based on the doctrine of

judicial immunity.

                             STANDARD OF REVIEW

¶9    This Court reviews an appeal of summary judgment de novo.

Motarie v.    Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242,

907 P.2d 154, 156.       We apply the same Rule 56, M.R.Civ.P., criteria

applied by the district court.             Bruner v. Yellowstone County




                                      4
(1995), 272 Mont. 261, 264, 900 P.2d 901, 903.           Rule 56(c),

M.R.Civ.P., provides that:

      [t]he judgment sought shall be rendered forthwith if the
      pleadings, depositions, answers to interrogatories, and
      admissions on file, together with the affidavits, if any,
      show that there is no genuine issue as to any material
      fact and that the moving party is entitled to a judgment
      as a matter of law.

¶10   The party moving for summary judgment has the initial burden

of establishing the absence of genuine issues of material fact.

Bruner, 272 Mont. at 264, 900 P.2d at 903.     If that burden is met,

the burden shifts to the nonmoving party to raise a genuine issue

of material fact by more than mere denial or speculation.    Bruner,

272 Mont. at 264, 900 P.2d at 903.    Once a court determines that no

genuine factual issues exist, it must determine whether the moving

party is entitled to judgment as a matter of law.        Bruner, 272

Mont. at 264, 900 P.2d at 903.
                             DISCUSSION

¶11   Did the District Court err when it found that there was no

genuine issue of material fact and concluded that Judge Phillips

was entitled to judgement as a matter of law?

¶12   Drew contends that Judge Phillips’ conduct during the probate

of the Estate of Hawkinson violated his oath of judicial office and

constituted malicious and improper behavior.    He alleges that Judge

Phillips held secret meetings, allowed the other defendants to take

estate property, did not enforce his orders, allowed felons to

cross state lines with stolen firearms and based on his personal

beliefs, ignored the laws of Montana.     Judge Phillips maintains,




                                  5
that despite Drew’s allegations, the undisputed facts establish

that he is entitled to judicial immunity as a matter of law.

¶13    Montana has codified the judicial immunity doctrine at § 2-9-

112(2), MCA:
       Immunity from suit for judicial acts and omissions.
       . . . .

       (2)        A 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.

¶14    Judicial immunity provides judges with absolute immunity from

suit   for   civil   damages   for   acts   performed   in   their   judicial

capacity.    Steele v. McGregor, 1998 MT 85, ¶ 16, 288 Mont. 238, ¶

16, 956 P.2 1364, ¶ 16 (citation omitted).              The United States

Supreme Court conducted a two-pronged inquiry to determine whether

a judge is entitled to judicial immunity in Stump v. Sparkman

(1978), 435 U.S. 349, 98 S.Ct 1099, 55 L.Ed.2d 331.
¶15    First, we must determine whether the judge had jurisdiction

over the subject before him at the time of the challenged conduct.

 A judge’s jurisdiction must be broadly construed.           Stump, 435 U.S.

at 356, 98 S.Ct. at 1105; See also Steele, ¶ 20.             “[A judge] will

be subject to liability only when he has acted in the ‘clear

absence of all jurisdiction.’”       Stump, 435 U.S. at 356-57, 98 S.Ct.

at 1105 (citation omitted).

¶16    A district court has original jurisdiction in all civil and

probate matters.      Section 3-5-302(1)(b), MCA.        Drew presented no

law or evidence in the District Court or on appeal to suggest that

Judge Phillips lacked jurisdiction over the Estate of Hawkinson.



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We conclude that Judge Phillips had jurisdiction to probate the

Estate of Hawkinson pursuant to § 3-5-302(1)(b), MCA.

¶17   The next stage of our inquiry concerns the nature of the

judge’s     conduct   and   the    judge’s       judicial     capacity.       This

determination focuses on whether the conduct complained of is of a

nature normally performed by a judge, and whether the parties dealt

with the judge in his judicial capacity.                Stump, 435 U.S. at 362,

98 S.Ct. at 1107.     A judge acting in his or her judicial capacity

will not be denied immunity because the judge acted maliciously,

mistakenly or in excess of his or her authority.                Steele, ¶ 20.
¶18   Judge Phillips filed a sworn affidavit with his motion for

summary judgment which stated that at all times relevant to Drew’s

allegations, his conduct and interaction with the parties involved

in this case were of a judicial nature and within his judicial

capacity.    Drew presented no facts or arguments to dispute that the

judge’s conduct occurred within his judicial capacity.                He stated:

“[c]learly Judge Phillips was malicious when he did through his

ruling as judge . . .” and “[b]ased on the facts of this case Judge

Phillips obviously was malicious in his rulings and wrong in

rulings where he failed to follow the law . . . .”                    The record

indicates that Drew attributed the conduct complained of to Judge

Phillips’ “rulings as judge,” which supports the judge’s claim of

immunity.

¶19   We conclude that Judge Phillips’ affidavit is sufficient to

meet his burden to show that there was no genuine issue of material

fact.     Consequently,     Drew   was       required   to   come   forward   with



                                         7
substantial evidence and specific facts, by way of sworn affidavits

or other sworn testimony, which raised a genuine issue of material

fact.    See McGinnis v. Hand, 1999 MT 9, ¶13, 293 Mont. 72, ¶13, 972

P.2d 1126, ¶13; Stanley v. Holms, 1999 MT 41, ¶ 32, 293 Mont 343, ¶

32, 975 P.2d 1242, ¶ 32.        Drew alleged Judge Phillips had ex parte

communications with Simonton in his pleadings and motions, however,

these allegations are nothing more than speculation, do not satisfy

his burden to raise an issue of material fact, and do not void

judicial immunity in any event.
¶20     In his reply brief, Drew included a sworn affidavit, signed

November 13, 2002, which stated that, approximately three years

ago, he and a friend observed Simonton enter Judge Phillips’

chambers and close the door.        Rule 9, M.R.App.P., limits the record

on appeal to the original papers filed with the district court, the

transcript of proceedings, and a certified copy of the docket

entries.         Drew’s affidavit is not of record and not properly

introduced for the first time on appeal.                Regardless, we conclude

that Drew’s affidavit does not link the alleged secret meeting to

the     Estate    of   Hawkinson   and       amounts    to   nothing   more   than

speculation.       Therefore, the affidavit does not raise an issue of

material fact.

¶21     We conclude that there was no genuine issue of material fact

and that Judge Phillips is entitled to judicial immunity as a

matter of law.         Therefore, the judgment of the District Court is

affirmed.


                                                       /S/ TERRY N. TRIEWEILER


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We Concur:


/S/   KARLA M. GRAY
/S/   JAMES C. NELSON
/S/   PATRICIA COTTER
/S/   JIM RICE




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