                                                                                         October 17 2007

                                          DA 06-0843

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 261



ROBERT SILVESTRONE,

              Plaintiff and Appellant,

         v.

PARK COUNTY, a political subdivision of the State of Montana,

              Defendant and Appellee.




APPEAL FROM:            District Court of the Sixth Judicial District,
                        In and For the County of Park, Cause No. DV-06-67
                        Honorable Wm. Nels Swandal, Presiding Judge



COUNSEL OF RECORD:

                For Appellant:

                        Ronald F. Waterman and KD Feeback, Gough, Shannahan, Johnson &
                        Waterman, Helena, Montana

                For Appellee:

                        Steven R. Milch, Crowley, Haughey, Hanson, Toole & Dietrich, Billings,
                        Montana




                                                         Submitted on Briefs: August 15, 2007

                                                                   Decided: October 17, 2007


Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1     Robert Silvestrone (Silvestrone) appeals from an order of the Sixth Judicial District

Court, Park County, granting Park County’s (County) motion for summary judgment and

denying Silvestrone’s motion to amend his complaint. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

¶2     Park County Sheriff’s deputies arrested Silvestrone for misdemeanor assault in May

of 2002. The officers transported Silvestrone to the Park County jail. Silvestrone spent three

days in jail before he made his initial appearance before the Justice of the Peace.

Silvestrone, acting without counsel, entered a plea of guilty during his initial appearance.

Justice of the Peace Deanna Egeland accepted Silvestrone’s plea and ordered that Silvestrone

pay a $350 fine.

¶3     Silvestrone sought legal advice after his guilty plea. He petitioned the District Court

through counsel for post-conviction relief and filed a motion to withdraw his guilty plea in

June of 2002. The District Court granted Silvestrone’s motion to withdraw his guilty plea on

December 17, 2002, and remanded his case to the Justice Court for a jury trial.

¶4     On the same day that the District Court granted Silvestrone’s motion to withdraw his

guilty plea, the Justice of the Peace issued a bench warrant for Silvestrone’s arrest for failure

to pay the fine specified in his original sentence. Two years later, in December of 2004,

officers arrested Silvestrone on the bench warrant and transported him to the Park County

jail. The County moved to dismiss the original charge upon discovering the District Court’s

order remanding the matter to the Justice Court for trial. The Justice of the Peace granted the

motion.




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¶5    Silvestrone filed a tort action in District Court on May 11, 2006. Silvestrone named

the County as defendant. Silvestrone claimed actual damages and emotional duress

stemming from the Justice of the Peace’s wrongfully issued arrest warrant. The County filed

a motion for summary judgment on June 6, 2006. Silvestrone moved to amend his complaint

to encompass the actions of both the Justice of the Peace and the Park County agents and

employees who were “directed to execute” the warrant. Silvestrone’s proposed amended

complaint also asserted a cause of action arising under the “Constitution and Laws” of

Montana.

¶6    The District Court held a hearing on the summary judgment motion. At the hearing,

as well as in his brief opposing summary judgment, Silvestrone asserted the need for more

time to conduct discovery. Despite these assertions, however, Silvestrone failed to file a

motion pursuant to M. R. Civ. P. 56(f) for additional time for discovery at any time during

the proceedings. The District Court nevertheless allowed Silvestrone an additional sixty

days for discovery and permitted the parties to submit additional briefs regarding the

County’s motion for summary judgment. The District Court eventually granted the County’s

motion for summary judgment. The court also denied Silvestrone’s motion to amend his

complaint. Silvestrone appeals.

                              STANDARD OF REVIEW

¶7    We review a district court's decision to grant summary judgment de novo, using the

same criteria applied by the district court under M. R. Civ. P. 56. Miller v. City of Red

Lodge, 2003 MT 44, ¶ 10, 314 Mont. 278, ¶ 10, 65 P.3d 562, ¶ 10. The moving party must

demonstrate that no genuine issues of fact exist. Miller, ¶ 10. The non-moving party must

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then prove, by more than mere denial and speculation, that a genuine issue of fact does exist.

Miller, ¶ 10. If no genuine issues of fact exist, the court must determine if the moving party

is entitled to judgment as a matter of law. Miller, ¶ 10. We review legal determinations for

correctness. Miller, ¶ 10.

                                       DISCUSSION

¶8     Silvestrone argues on appeal that the District Court granted summary judgment

prematurely. He asserts that the District Court conducted the proceedings with excessive

haste. Silvestrone contends that the County’s motion for summary judgment preempted

discovery necessary for resolving certain factual issues. He also asserts that the District

Court improperly provided the County with “blanket” or “absolute” immunity in conflict

with Montana’s constitutional provision subjecting the government to suit for injury to

person or property. Mont. Const. art. II, § 18.

¶9     Silvestrone’s argument concerning the abbreviated period for discovery disregards

both the procedures and policies relating to summary judgment. The defendant may move

for summary judgment at any time after a party files a complaint. M. R. Civ. P. 56(b).

Summary judgment serves to encourage judicial economy and to eliminate the delay and

expense of unnecessary trials. Klock v. Town of Cascade, 284 Mont. 167, 173, 943 P.2d

1262, 1266 (1997). Parties opposing summary judgment can move the court for additional

time to conduct discovery pursuant to M. R. Civ. P. 56(f).

¶10    Silvestrone complains that the hastened pace of the proceedings and the inadequate

time for conducting discovery prevented him from uncovering potentially relevant evidence

and witnesses. The record reveals, however, that despite these assertions Silvestrone filed no

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Rule 56(f) motion. Silvestrone failed to provide the court with any affidavits that might

demonstrate the need for additional time for discovery. See Heggem v. Capitol Indem.

Corp., 2007 MT 74, ¶ 20, 336 Mont. 429, ¶ 20, 154 P.3d 1189, ¶ 20; Morales v. Tuomi, 214

Mont. 419, 426, 693 P.2d 532, 535-36 (1985). The District Court attempted to accommodate

Silvestrone by granting an additional sixty days for discovery despite the lack of a formal

motion, an affidavit, or assertions of substance.

¶11    Once the County established the absence of genuine issues of fact, Rule 56(c)

required Silvestrone to provide more than mere speculation of possible issues of fact. Miller,

¶ 10. Silvestrone’s failure to provide meaningful submissions raising genuine issues of fact

entitled the District Court to rule on summary judgment without providing additional time

for discovery.

¶12    Silvestrone next challenges the District Court’s grant of summary judgment as

inappropriate in light of the “constitutional nature” of the rights asserted. The 1972 Montana

Constitution abrogated the common-law doctrine of sovereign immunity from suit in Article

II, Section 18. Mont. Const. art. II, § 18. The Montana Constitution allows such immunity

only if the legislature established it by a two-thirds vote. Mont. Const. art. II, § 18;

Brunsvold v. State, 250 Mont. 500, 504, 820 P.2d 732, 734 (1991).

¶13    We previously have indicated that immunities separate and distinct from sovereign

immunity remained unaffected by the language of Article II, Section 18. State ex rel. Dept.

of Justice v. District Court, 172 Mont. 88, 560 P.2d 1328 (1976) (prosecutorial immunity);

Koppen v. Board of Medical Examiners, 233 Mont. 214, 759 P.2d 173 (1988) (quasi-judicial

immunity). We do not need to determine here if the common law doctrine of judicial

                                              5
immunity also survived Article II, Section 18, as the legislature enacted § 2-9-112, MCA, in

1977 to codify the doctrine of judicial immunity. Mead v. McKittrick, 223 Mont. 428, 430,

727 P.2d 517, 518-19 (1986).

¶14    Section 2-9-112, MCA, provides that “[t]he state and other governmental units are

immune from suit for acts or omissions of the judiciary.” We have held that judicial

immunity of the government arises “‘whenever the judicial power of the state is put to use in

a judicial action.’” Mead, 223 Mont. at 431-32, 727 P.2d at 519 (quoting Knutson v. State,

211 Mont. 126, 129, 683 P.2d 488, 490 (1984)). We have noted that the language of the

immunity statute applies to judicial acts with “no stated limitation.” Knutson, 211 Mont. at

128-29, 683 P.2d at 490.

¶15    Silvestrone asks this Court either to deem § 2-9-112, MCA, unconstitutional as

conflicting with the intent of the framers of Article II, Section 18, or to prohibit its

application on summary judgment in light of the fundamental rights involved. This Court

has recognized the legislature’s compliance with the requirements laid out in Article II,

Section 18, that specifically allow for the establishment of judicial immunity. See e.g.

Brunsvold, 250 Mont. at 504, 820 P.2d at 734; Knutson, 211 Mont. at 128, 683 P.2d at 490;

Reisdorff v. County of Yellowstone, 1999 MT 280, ¶ 27, 296 Mont. 525, ¶ 27, 989 P.2d 850,

¶ 27, overruled on other grounds by Miller v. City of Red Lodge, 2003 MT 44, ¶¶ 18, 26, 314

Mont. 278, ¶¶ 18, 26, 65 P.3d 562, ¶¶ 18, 26. We have noted the limits of state immunity

laws such as § 2-9-112, MCA. Miller, ¶ 18; Germann v. Stephens, 2006 MT 130, ¶¶ 48-53,

332 Mont. 303, ¶¶ 48-53, 137 P.3d 545, ¶¶ 48-53.




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¶16    We also have noted the opportunity for plaintiffs to hold the State and its

representatives accountable for violations of federal statutory and constitutional rights with

actions based on 42 U.S.C. § 1983. Miller, ¶ 18; Germann, ¶¶ 47-53. Silvestrone alleged a

violation of Montana’s “Constitution and Laws.” He did not bring an action under § 1983.

He cannot avoid the application of § 2-9-112, MCA. Furthermore, Silvestrone failed to

challenge the constitutionality of § 2-9-112, MCA, before the District Court. He may not

challenge the statute’s constitutionality for the first time on appeal. State v. Martinez, 2003

MT 65, ¶ 17, 314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17.

¶17    Silvestrone faults the Justice of the Peace for invalidly issuing the warrant that led to

his arrest, incarceration, and damages. He also faults individuals “directed to execute” the

warrant and a breakdown in the administrative process of Park County courts. As the

County correctly noted, however, the Justice of the Peace’s issuance of the bench warrant

constituted a judicial act. Section 3-10-401, MCA. The execution of the warrant likewise

represents the judicial power of the state put into action. Reisdorff , ¶¶ 29-30.

¶18    The District Court’s grant of Silvestrone’s motion to withdraw his guilty plea and its

remand of the case to the Justice Court for a trial also constituted judicial acts. Section 46-

20-703, MCA. The failure of the Park County courts and personnel to remand the matter to

the Justice Court constitutes an omission as opposed to an affirmative judicial act. Section 2-

9-112(1), MCA, provides the government with immunity, however, for both acts and

omissions of the judiciary. The Justice Court’s lack of awareness of the District Court’s

remand resulted in the inaction of the judicial power of the state.




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¶19    We do not condone the acts and omissions leading to Silvestrone’s arrest. The

judicial officers and employees of the judicial branch must use great care in the exercise of

their duties in light of the potential for disruption to the lives of citizens affected by their

actions. We do not doubt that Silvestrone’s arrest may have caused considerable disruption

to him. The acts and omissions leading to his arrest, however, fall within the immunity

afforded to the County under § 2-9-112(1), MCA. We conclude that the District Court

correctly determined that the County was entitled to judgment as a matter of law under these

uncontested facts.

¶20    Affirmed.

                                                           /S/ BRIAN MORRIS


We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JIM RICE

Justice James C. Nelson, dissenting.

¶21    I dissent.

¶22    The Court’s Opinion understates the egregiousness of the facts surrounding

Silvestrone’s mistreatment at the hands of the Park County criminal justice system. In his

May 23, 2002 Motion to Withdraw Guilty Plea, Silvestrone states as follows. At the time he

was charged with partner or family member assault (May 17, 2002), he and the alleged

victim were involved in a divorce and the victim used the charge in an attempt to obtain

leverage in the divorce case. He was immediately incarcerated for three days without the


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medication prescribed by his physician. He had never been arrested before and had no

knowledge of the workings of the criminal justice system.           He was emotional and

psychologically distraught, and his ability to make appropriate decisions about his situation

was compromised. He did not have the opportunity to obtain the advice of legal counsel. He

was under the impression that unless he pleaded guilty, he would be returned to custody and

would be unable to make bail. Accordingly, on May 20, 2002, without the benefit of

counsel, he pleaded guilty to the charge, whereupon he was released.

¶23    On obtaining counsel prior to sentencing, Silvestrone moved to withdraw his guilty

plea, but the Justice of the Peace denied his motion. Fortunately, the District Court granted

him relief and remanded the case back to Justice Court for a jury trial. However, that very

same day, apparently oblivious of the District Court’s order of remand, the Justice of the

Peace—“improvidently,” as the County admitted in the District Court—issued a bench

warrant for Silvestrone’s arrest.

¶24    There then occurred a series of events that would confound any responsible citizen—

and should embarrass the judge and court officers involved. In a quintessential display of the

right hand not knowing what the left hand is doing, Silvestrone’s case fell through the

cracks. Instead of promptly giving him his day in court as the District Judge had ordered—

and as Article II, Section 24 of the Montana Constitution requires—the Justice Court, the

prosecutor, and the authorities did nothing for two years. Yet, though lost in the bowels of

the court bureaucracy, Silvestrone’s case was not entirely forgotten.

¶25    On December 14, 2004, as he was about to board a plane to travel to a job assignment,

the authorities arrested Silvestrone and hauled him off to jail. It was only then—after

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thoroughly trashing his constitutional right to a speedy public trial as ordered by the District

Court—that the County filed its motion to dismiss the charge in the “Interests of Justice.”

The Justice Court granted the prosecutor’s motion. While that summarily disposed of his

case, Silvestrone never got his day in court; never had the opportunity to have a jury of his

peers determine his guilt or innocence; never got the chance to face his accuser and to

challenge the assault charge, the mere filing of which presumably still besmirches his record;

and was deprived of the chance to clear his name. In short, he was never given the

opportunity to exercise any of the fundamental constitutional rights that are, in theory,

accorded to every person accused of a crime in this State. Indeed, that the charges against

him were ultimately dismissed in the “Interests of Justice” is a deception—a façade covering

up the gross injustice perpetrated by the Justice Court’s and the prosecutor’s bungled

handling of Silvestrone’s case.

¶26    As a result of this debacle, Silvestrone, not surprisingly, sought redress for his

mistreatment at the hands of his elected officials and his government. Having received no

justice in the criminal justice system, he sued the County in tort for compensation for his ill-

treatment. Regrettably, he then hit the brick wall of the civil justice system. The County, the

Justice of the Peace, the court officers, the prosecutor—every entity and person involved in

this fiasco—was adjudged to be immune from suit. Nobody could be held to account for

Silvestrone’s injuries. Indeed, “justice” did not have any interest in Silvestrone’s plight.

¶27    Judicial immunity, quasi-judicial immunity, and prosecutorial immunity are holdovers

from the common law.         They are, as well, an affront to the notion of individual

accountability that is fundamental to our society.

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              “Accountability of each individual for individual conduct lies at the
       core of all law—indeed, of all organized societies. The trend to eliminate or
       modify sovereign immunity is not an unrelated development; we have moved
       away from ‘The King can do no wrong.’ This principle of individual
       accountability is fundamental if the structure of an organized society is not to
       be eroded to anarchy and impotence, and it remains essential in civil as well as
       criminal justice.”

Nixon v. Fitzgerald, 457 U.S. 731, 768-69, 102 S. Ct. 2690, 2711 (1982) (White, Brennan,

Marshall & Blackmun, JJ., dissenting) (quoting Complete Auto Transit, Inc. v. Reis, 451 U.S.

401, 429, 101 S. Ct. 1836, 1851 (1981) (Burger, C.J. & Rehnquist, J., dissenting)).

¶28    Recognizing this fact, the framers of Montana’s Constitution believed that the

government, at least, should be liable for the wrongs perpetrated by its servants. See

Montana Constitutional Convention, Verbatim Transcript, March 8, 1972, p. 1760. As

Delegate Wade J. Dahood, Chairman of the Bill of Rights Committee, explained:

       What our committee is really concerned about is making sure that an antiquated
       doctrine that had no place within American jurisprudence in the first instance is
       removed from the face of justice in the State of Montana. . . . We have an
       opportunity now, as long as in Montana no one else will accept it, to make sure that
       we have full redress and full justice for all of our citizens. . . . We submit it’s an
       inalienable right to have remedy when someone injures you through negligence and
       through a wrongdoing, regardless of whether he has the status of a governmental
       servant or not.

Montana Constitutional Convention, Verbatim Transcript, March 8, 1972, pp. 1763-64.

¶29    Placed within the Declaration of Rights, Article II, Section 18 of the Montana

Constitution provides:

       State subject to suit. 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.




                                             11
¶30    Not surprisingly, it did not take the Legislature long to revert to the archaic doctrine

that “ ‘the king can do whatever he wants but he doesn’t have to pay for it.’ ” See Massee v.

Thompson, 2004 MT 121, ¶ 72, 321 Mont. 210, ¶ 72, 90 P.3d 394, ¶ 72 (Nelson, J., specially

concurring and dissenting) (quoting Delegate Marshall Murray, Montana Constitutional

Convention, Verbatim Transcript, March 8, 1972, p. 1760). In the years following the

adoption of Montana’s 1972 Constitution, the Legislature enacted various statutory

roadblocks to frustrate the constitutional right of Montanans to hold the King accountable for

his wrongdoing and obtain full legal redress. See generally Title 2, Chapter 9, MCA.

¶31    Section 2-9-112, MCA, which provides blanket immunity from suit to the government

and the judiciary for official wrongdoing, is such a statute. While it is tempting to address

the constitutionality of this statute head-on, any conclusion in favor of Silvestrone’s

constitutional right to sue at least the King, if not the King’s underlings, would be inapposite

given the procedural problems underlying this appeal, as set out in the Court’s Opinion.

Suffice it to say that reading Article II, Sections 16 and 18 together requires a quid pro quo:

If the King’s underlings are statutorily immune from suit, then the abrogation of sovereign

immunity, Mont. Const. art II, § 18, the right of access to the courts, Mont. Const. art II,

§ 16, and the right to a speedy remedy “for every injury of person, property, or character,”

i.e., the right to “full legal redress,” Mont. Const. art II, § 16 (emphasis added), together

guarantee the right to sue the King himself—any statute to the contrary notwithstanding. I

look forward to the case in which an appropriate constitutional challenge is raised and this

argument is developed.




                                              12
¶32    As for the case at bar, our civil justice system has refused to provide an opportunity

for full legal redress to a citizen whose rights have been flagrantly trampled on and to hold

those responsible for that abuse accountable. I must therefore dissent from the Court’s

decision—in the “Interests of Justice.”


                                                  /S/ JAMES C. NELSON




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