Orser v. State

• Decision Date: 09 August 1978
• Docket Number: No. 13981,13981
• Citation: 35 St.Rep. 1167,582 P.2d 1227,178 Mont. 126
• Parties: John ORSER et al., Plaintiffs and Appellants, v. STATE of Montana et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 1227

582 P.2d 1227

178 Mont. 126

John ORSER et al., Plaintiffs and Appellants, v. STATE of Montana et al., Defendants and Respondents.

No. 13981.

Supreme Court of Montana.

Submitted June 8, 1978.

Decided Aug. 9, 1978.

H. James Oleson argued, Kalispell, for plaintiffs and appellants.

Anderson, Symmes, Brown, Gerbase, Cebull & Jones, Billings, Richard F. Cebull argued, Billings, for defendants and respondents.

DALY, Justice.

This is an action for malicious prosecution brought by John Orser and Charles Tecca against three state game wardens, the Montana Fish and Game Commission, and the State of Montana. The District Court, Park County, granted defendants' motion for a directed verdict and dismissed the case against them. Plaintiffs' motion for rehearing was denied, and they bring this appeal.

On the afternoon of February 11, 1975, two state game wardens, Gary Ordish and Randy Smith, were in their quarters at the Blanding Station near Gardiner, Montana. At approximately 5:30 p. m. a local rancher, William Hoppe, informed them of a shooting disturbance near his home, a short distance from the station. Hoppe told them that while he was feeding his cattle a few minutes earlier he heard some snow machines start up and saw two go past his place. Shortly thereafter, he heard several shots, followed by a herd of elk running toward his meadow over the hill which then separated his home from the snow machines. After the shooting, Hoppe saw the snow machines return in the direction from where they came. They carried two men and a boy, and Hoppe could see that the riders had rifles with them. He immediately left his haystack and reported the incident at the Blanding Station. He told the wardens there that the snow machines had proceeded "back toward John Orser's house".

The wardens went to the Orser property and there saw Orser, his son, and momentarily, Charles Tecca, who went into a shed as the wardens' vehicle approached. Warden Ordish introduced himself to Orser and asked if Orser had been on the snow machines which were parked in his yard. Orser replied that they had been cutting wood. He asked Orser if he had done any shooting that afternoon, which Orser denied. Ordish walked past a Toyota belonging to Tecca and notice an empty gun case lying in the back.

Ordish and Smith then left the Orser residence and proceeded toward a vantage point from which they could observe Orser's driveway. After 30 to 45 minutes, having seen nothing unusual, they returned to their regular work of checking for nighttime poaching.

On the following afternoon, February 12, William Hoppe again contacted the wardens, telling them that he had gone over the hill over which the elk had run the previous afternoon. There he had discovered three freshly killed elk and one blood trail. Ordish and Smith went to the scene of the dead elk and found three carcasses still unfrozen in the snow. They confirmed that all three had been shot through their right sides as they proceeded up a hill. Walking back toward where the shots would have come from, they encountered a fresh snow machine track. Following the track back to its origin, they arrived in Orser's yard. Warden Ordish asked Orser to talk with him about the dead elk, but Orser refused, informed the wardens that they were trespassing, and told them if they wanted him, they would have to get a warrant for his arrest.

That evening Ordish and Smith, accompanied by Henry Fabich, also a game warden, located Charles Tecca at a meeting of the Sportsmen's Club in Livingston, Montana. After the meeting and following some questioning, the wardens issued a ticket to Tecca for violation of section 26-307, R.C.M.1947, killing and abandoning a game animal during a closed season. The next day Smith returned to the Orser home and issued a ticket to John Orser on the same charge.

Orser and Tecca were tried on the charges in Justice Court in Livingston on March 14, 1975, and acquitted by a jury. On these facts the plaintiff-appellants brought their suit for malicious prosecution, alleging that the charges against them were brought maliciously and without probable cause, thereby subjecting them to public ridicule and embarrassment. The District Court directed the verdict against plaintiffs on the grounds that as law enforcement officers, game wardens are immune from civil liability for acts within the scope of their official duties, and that as a matter of law, the wardens had probable cause to issue the tickets to plaintiffs.

This appeal raises three issues for determination by this Court:

1. Whether the State and its Fish and Game Commission have absolute immunity from civil liability for the acts of state law enforcement officers acting within the scope of their authority.

2. Whether an individual state game warden is absolutely immune from personal civil liability for acts committed within the scope of his duties as a law enforcement officer.

3. Whether liability for malicious prosecution may arise against the State or its law enforcement officers as a result of the filing of criminal charges against a person who is subsequently acquitted.

The law in Montana recognizes absolute state immunity for the acts of certain state employees and officers. In some instances state immunity from civil liability for acts of state officials is statutory, as in the cases of members of the legislature, section 82-4328(2), R.C.M.1947 (Supp.1977); members of the judiciary, section 82-4329(1), R.C.M.1947 (Supp.1977); and the governor, section 82-4330, R.C.M.1947 (Supp.1977). In other instances, the courts recognize state immunity for the acts of public officials where the public need weighs heavily in favor of such a policy. Thus, in State ex rel. Department of Justice v. District Court (1976), Mont., 560 P.2d 1328, 1330, 33 St.Rep. 1242, 1245, this Court held that Article II, Section 18, 1972 Montana Constitution, did not abolish state immunity for acts of the attorney general.

Respondents in the present case urge that the rule of state immunity which this Court applied to acts of the attorney general should also apply to acts of state game wardens in their capacity as law enforcement officers. In view of the constitutional and statutory provisions which strictly limit the application of the sovereign immunity doctrine in Montana, we decline to extend our holding in the Department of Justice case.

In State v. District Court (1976), Mont., 550 P.2d 382, 385, 33 St.Rep. 464, 468, this Court ruled that a city may be held liable for the negligent acts of its police officers within the course and scope of their duties as law enforcement officers. The Court based its ruling on Article II, Section 18, 1972 Montana Constitution, and section 82-4310 of the Montana Tort Claims Act of 1973, sections 82-4301 through 82-4335, R.C.M.1947 (Supp.1977). Under this Act it concluded that the city which employed the police officers was liable for any negligent conduct of its officers, to the exclusion of the State. There was no direct agency relationship between the State and the city police officers in question; thus, since the State did not control the activities of city police officers, it could not be held responsible for their negligence. 550 P.2d at 384, 33 St.Rep. at 468.

In the present case, however, the agency relationship between the State and the game wardens is clear. The State Department of Fish and Game is the supervising entity over all state game wardens. Under the law at the time this action accrued, as well as at present, the State has the power to appoint wardens, section 26-107, R.C.M.1947 (Supp.1977), to suspend them without pay, to reduce their rank, or to discharge them entirely, section 26-108, R.C.M.1947 (Supp.1977). The Department may rate its wardens according to merit and efficiency, and fix their salaries accordingly. Id. Wardens, in turn, are required to perform all duties prescribed by the Department and must make monthly reports to it, "correctly informing the department of their activities on each day of the preceding month, with regard to the enforcement of the fish and game laws * * * ." Section 26-110(4), R.C.M.1947 (Supp.1977).

While the decision in State v. District Court dealt with Negligent conduct on the part of city police officers, the present case involves an alleged Intentional tort. The Tort Claims Act, in section 82-4323(2), provides that when a state employee is sued for an act within the scope of his employment, the State must bear the entire responsibility for his conduct, unless his act was an intentional tort. This does not mean, however, that the State is responsible only for the negligent acts of its employees. Section 82-4323(2) also provides that recovery against the State constitutes a bar to recovery "* * * against the employee whose negligence Or wrongful act, error, or omission or other actionable conduct gave rise to the claim." It is clear then, that the legislature contemplated recovery against the State not only for the negligence of its employees, but also for all other forms of actionable conduct, including intentional torts.

We hold that the State must accept responsibility for the acts of its game wardens within the course and scope of their employment, and must bear the liability, if any, for their tortious acts committed within their official authority. That the game wardens in this case acted within their authority appears conceded by all. A game warden has the authority to bring charges for violations of the fish and game laws and may not compromise an apparent violation out of court. Sections 26-110.3(6), (7), 26-110(5), R.C.M.1947 (Supp.1977). Further, a malicious prosecution action, unlike an action for false imprisonment, presupposes that the defendant has proceeded under proper legal authority. W. Prosser, The Law of Torts, § 119 at 835 (4th ed. 1971).

The second issue raised is whether an individual state game warden is absolutely immune...