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
2
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
3
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.
6
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
8
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
9
