Valley Bail Bonds et al v. Budeski et al

Filing 9

FINDINGS AND RECOMMENDATIONS re 3 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. RECOMMENDED that the motion to dismiss Counts One, Two, Three and Four with prejudice be GRANTED and that the motion to dismiss Count Five be GRANTED, and that this count be dismissed without prejudice. Signed by Magistrate Judge Carolyn S Ostby on 7/25/2014. (NOB) Modified on 7/25/2014 to change to written opinion. (NOB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
VALLEY BAIL BONDS, a
Montana Partnership, SCOTT
RESTVEDT and DAVID CROW,

CV-14-24-BLG-SPW-CSO

FINDINGS AND
RECOMMENDATION OF
U.S. MAGISTRATE JUDGE

Plaintiffs,
vs.
LINDA BUDESKI, individually,
and as Justice of the Peace of
PARK COUNTY, MONTANA,
and PARK COUNTY,
MONTANA, a Political
Subdivision of the State of
Montana,
Defendants.

Plaintiffs Valley Bail Bonds, Scott Restvedt, and David Crow
claim that Linda Budeski (“Budeski”), as a Park County, Montana,
justice of the peace, and Park County (“Park County”) violated their
constitutional rights under 42 U.S.C. § 1983 and wrongfully interfered
with their business operations under Montana law. Cmplt. (ECF 1) at
4-7.1 Plaintiffs allege that some of Budeski’s bail decisions in criminal

“ECF” refers to the document as numbered in the Court’s
Electronic Case Files. See The Bluebook, A Uniform System of Citation,
§ 10.8.3. Citations to pages are to those assigned by the ECF system.
1

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cases, and Park County’s failure to train and supervise her, caused
Plaintiffs damages for which Budeski and Park County are liable.
Budeski is sued both in her official and her individual capacities.
Valley Bail Bonds is a Montana partnership. Id. at 1. Its
business involves providing bail bonds to criminal defendants subject to
detention in Park County. Id. at 3. Plaintiffs’ principal claim is that
Budeski, acting outside her jurisdictional authority, allowed criminal
defendants to post ten percent (10%) of their bond amount with the
court rather than requiring that such individuals either pay the full
amount of their bond or use the services of a bail bondsman to pay the
bond amount. Id. This practice, Plaintiffs claim, deprives them of their
property interest in writing bail bonds in Park County. Id. at 4.
Defendants’ move to dismiss Plaintiffs’ claims under Rule
12(b)(6).2 Having considered the parties’ briefs and the applicable law,
the Court enters the following Findings and Recommendation.
I.

BACKGROUND
In addressing a Rule 12(b)(6) motion, the Court accepts all factual

allegations in the complaint as true and construes the pleadings in the
2

References to rules are to the Federal Rules of Civil Procedure
unless otherwise noted.
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light most favorable to the nonmoving party. Knievel v. ESPN, 393
F.3d 1068, 1072 (9th Cir. 2005). Plaintiffs’ Complaint alleges as follows.
Sometime before July 22, 2013, Budeski began allowing criminal
defendants to post ten percent (10%) of their bond amount with the
Court rather than requiring them to either pay the full bond amount or
use the services of a licensed bail bondsman. ECF 1 at 3. On or about
July 22, 2013, someone contacted Plaintiffs willing to post $7,500 cash
in conjunction with a $75,000 bond for Park County criminal defendant
Michael Shane Ransom (“Ransom”), who had been charged with a crime
in the Justice Court of Park County. Plaintiffs performed an
investigation into the nature of the crime and the risks involved, and
agreed to provide Ransom a surety bond.
Before Plaintiffs completed the transaction, however, Budeski, at
the urging of Ransom’s lawyer, allowed Ransom to post ten percent of
his $75,000 bond with the court, “as opposed to using a bond company”
licensed through the State Auditor’s office. Id. (quotations in original).
Although the Complaint puts this phrase in quotations, there is no
citation to the source of the quotation.

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From these allegations, Plaintiffs assert the following five counts:
(1) Count One – that under 42 U.S.C. § 1983, Budeski, acting in
her individual capacity, deprived them of their property interest
in writing bail bonds without providing due process and in
violation of MCA § 46-9-401;
(2) Count Two – that under 42 U.S.C. § 1983, Park County
violated their property and liberty interests by failing to train and
supervise Budeski in connection with her bail bonds practices just
described;
(3) Count Three – that under 42 U.S.C. § 1983, Plaintiffs are
entitled to a permanent injunction prohibiting Budeski and other
Park County judges from allowing forms of bail not specifically
authorized by MCA § 46-9-401;
(4) Count Four – that Budeski and Park County have wrongfully
interfered with Plaintiffs’ business operations by acting as a
surety and by competing with Plaintiffs’ business; and
(5) Count Five – that Plaintiffs are entitled to a declaratory
judgment that Budeski’s and Park County’s “practice of accepting
10% of bail amounts is contrary [to] the forms of bail allowed by
[MCA] § 46-9-401 (2013)[ ]”.
Plaintiffs seek “general, special and punitive damages[,]” injunctive and
declaratory relief, and attorneys fees. ECF 1 at 6-8.
II.

SUMMARY OF PARTIES’ ARGUMENTS
In seeking dismissal of Plaintiffs’ claims, Budeski and Park

County argue that: (1) to the extent Budeski’s conduct gave rise to
Plaintiffs’ state law claims, she enjoys individual immunity under

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Montana law, provided Park County acknowledges that her conduct
was within the course and scope of her employment, which it was, ECF
4 at 3-4; (2) Budeski is entitled to judicial immunity because she was
performing a function normally performed by a judge when she set bail,
regardless of whether she erred in doing so, and because she did not act
in the clear absence of all jurisdiction, id. at 4-8; (3) Park County may
not be held liable for failing to train Budeski because it owes no duty to
specific members of the public but rather owes a duty to the public as a
whole, and because it does not have a special relationship with
Plaintiffs that would give rise to a duty, id. at 9-10; (4) Park County is
not subject to liability under 42 U.S.C. § 1983 because Plaintiffs have
failed to allege facts identifying conduct that amounts to a practice,
policy, or custom responsible for the alleged constitutional violations,
id. at 10-11; (5) Plaintiffs have failed to allege a property or liberty
interest that warrants § 1983 protection because they have failed to
allege facts implicating a protected property interest but rather allege
facts supporting only speculative future business income, and Budeski’s
conduct does not interfere with Plaintiffs’ overall ability to engage in
business, id. at 11-13; (6) Plaintiffs are not entitled to injunctive relief

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because no declaratory decree has been violated, id. at 14; (7) Plaintiffs
are not entitled to declaratory relief because there exists no actual
controversy in that Plaintiffs have not alleged that they had a written
contract with criminal defendant Ransom or that Budeski encroached
upon their contractual rights, id. at 14-15; and (8) to the extent
Plaintiffs seek declaratory relief under Montana law, this federal court
should decline to address the declaratory issue because it is a matter
more appropriately addressed by the state courts, id. at 15-17.
In response, Plaintiffs argue that: (1) Budeski is not entitled to
judicial immunity because her act of allowing a criminal defendant to
pay the court ten percent of the set bail was an administrative decision,
not a judicial decision, Pltfs’ Resp. Br. (ECF 6) at 5-10; (2) they have
adequately alleged a property interest protected by § 1983 because of
their “constitutionally recognized property interest in their ability to
carry out the business of underwriting bail bonds in Montana Courts of
limited jurisdiction[,]” id. at 10-12; (3) the public duty doctrine does not
apply in this case because a special relationship exists between
Plaintiffs and the courts in that “Plaintiffs depend on the Courts to set
bail in criminal matters, and Courts, likewise, depend on licensed bail

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bondsmen to either motivate criminal defendants, with the threat of
economic loss, to show up for Court appearances, to arrest criminal
defendants who do not appear, and, to pay the full amount of the posted
bail of fleeing defendants in other cases[,]” id. at 12-14; and (4) both
injunctive and declaratory relief are available to Plaintiffs because
Plaintiffs’ federal and state law claims “are inextricably intertwined[ ]”
and the court has pendent jurisdiction to resolve this case in its
entirety, id. at 14-15.
III. LEGAL STANDARD
“Dismissal under Rule 12(b)(6) is proper only when the complaint
either (1) lacks a cognizable legal theory or (2) fails to allege sufficient
facts to support a cognizable legal theory.” Zixiang Li v. Kerry, 710
F.3d 995, 999 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp.
Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). In addressing a Rule
12(b)(6) challenge, the Court accepts all factual allegations in a
complaint as true (Hospital Bldg. Co. v. Trustees of the Rex Hospital,
425 U.S. 738, 740 (1976)), and construes the pleading in the light most
favorable to the nonmoving party. Tanner v. Heise, 879 F.2d 572, 576
(9th Cir. 1989). The Court is not, however, required to accept as true

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allegations that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d
992, 998 (9th Cir. 2010).
IV.

DISCUSSION
A.

Count One – Damages Sought for Alleged Violation of
Rights Protected by 42 U.S.C. § 1983

This claim seeks relief only against Budeski. As a threshold
issue, the Court considers whether Budeski enjoys absolute judicial
immunity for the conduct that Plaintiffs allege give rise to their claims.
It is well-settled that judges are “absolutely immune for judicial
acts.” Simmons v. Sacramento Co. Superior Ct., 318 F.3d 1156, 1161
(9th Cir. 2003); see also Mireles v. Waco, 502 U.S. 9, 11-12 (1991).
Judicial immunity provides immunity from suit, not just from an
assessment of damages. Mireles, 502 U.S. at 11. The judicial immunity
doctrine “reflects the long-standing ‘general principle of the highest
importance to the proper administration of justice that a judicial
officer, in exercising the authority vested in him, shall be free to act
upon his own convictions, without apprehension of personal
consequences to himself.’” Olsen v. Idaho State Bd. of Medicine, 363
F.3d 916, 922 (9th Cir. 2004) (quoting Bradley v. Fisher, 80 U.S. (13
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Wall.) 335, 347 (1871)).
Judges enjoy immunity “for their judicial acts, even when such
acts are in excess of their jurisdiction, and are alleged to have been
done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 356
(1978) (quoting Bradley, 80 U.S. at 351); see also Mireles, 502 U.S. at 11
(“judicial immunity is not overcome by allegations of bad faith or
malice”). “[T]he necessary inquiry in determining whether a defendant
judge is immune from suit is whether at the time he took the
challenged action he had jurisdiction over the subject matter before
him.” Stump, 435 U.S. at 356. Courts are to construe judicial
immunity broadly. A “judge will not be deprived of immunity because
the action he took was in error, was done maliciously, or was in excess
of his authority; rather, he will be subject to liability only when he has
acted in the ‘clear absence of all jurisdiction.’” Stump, 435 U.S. at 35657 (quoting Bradley, 80 U.S. at 351). Even “grave procedural errors” do
not deprive a judge of immunity. Ashelman v. Page, 793 F.2d 1072,
1077 (9th Cir. 1986) (citing Stump, 435 U.S. at 359)).
Thus, exceptions to judicial immunity are recognized only in two
limited situations: (1) where the judge’s actions were not taken in the

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judge’s judicial capacity (Mireles, 502 U.S. at 11 (“nonjudicial actions”)),
and (2) where the judge has acted “in the ‘clear absence of all
jurisdiction[.]’” Sadoski v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006)
(quoting Stump, 435 U.S. at 356-57 and Bradley, 80 U.S. at 351). “A
clear absence of all jurisdiction means a clear lack of all subject matter
jurisdiction[,]” as opposed to acts committed merely in excess of
jurisdiction. Miller v. Davis, 521 F.3d 1142, 1147 (9th Cir. 2008)
(citations omitted). Where “jurisdiction over the subject-matter is
invested by law in the judge, or in the court which he holds, the manner
and extent in which the jurisdiction shall be exercised are generally as
much questions for his determination as any other questions involved
in the case[.]” Stump, 435 U.S. at 356 n.6 (quoting Bradley, 80 U.S. at
351–52).
Applying the foregoing authority to the case at hand, the Court
concludes that Budeski enjoys absolute judicial immunity for the
conduct Plaintiffs allege give rise to their claims. It is well established
that justices of the peace “fall within the protective ambit of the
[judicial immunity] doctrine.” Gregory v. Thompson, 500 F.2d 59, 62
(9th Cir. 1974) (citing Mississippi ex rel. Giles v. Thomas, 464 F.2d 156,

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159-160 (5th Cir. 1972); Hurlburt .v Graham, 323 F.2d 723, 725 (6th Cir.
1963); and Tate v. Arnold, 223 F.2d 782, 786 (8th Cir. 1955)).3 Thus, the
first question is whether Budeski, at the time she allowed criminal
defendants to post ten percent of their bond amount with the court
rather than requiring them to pay the full bond amount or use the
services of a bail bondsman, had jurisdiction over the subject matter
before her. Stump, 435 U.S. at 356. The Court concludes that she did.
Under Montana law, “justices’ courts have jurisdiction of public
offenses committed within the respective counties in which the courts
are established” for categories of misdemeanors described in the
governing statute. See MCA § 3-10-303(1)(a)-(g). Justices’ courts also
have “jurisdiction to act as an examining and committing court in cases

3

The Second Circuit noted in Tucker v. Outwater, that “there is
Supreme Court dictum to the effect that judges who sit on courts of
limited (as opposed to general) jurisdiction are immune from damages
only if they act within their jurisdiction, and are subject to damage
actions if they act in excess, although not in the clear absence, of all
jurisdiction.” 118 F.3d 930, 937-38 (2d Cir. 1997) (citing Alzua v.
Johnson, 231 U.S. 106, 34 S.Ct. 27, 58 L.Ed. 142 (1913); Bradley v.
Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872); Randall v. Brigham,
74 U.S. (7 Wall.) 523, 535–36, 19 L.Ed. 285 (1869)). Although, in light
of Gregory, supra, it appears that the Ninth Circuit does not consider
the dicta binding, it is not relevant in the case at hand in any event
because the Court concludes, as discussed below, that Budeski acted
within her jurisdiction and not in excess of it.
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involving felony offenses[.]” State v. Strobel, 885 P.2d 503, 504 (Mont.
1994) (citing Art. VII, Sec. 5(2), MONT. CONST.; MCA § 3-10-303). As
part of such proceedings, “[a] judge may admit to bail any defendant
properly appearing before the judge in a bail proceeding.” MCA § 46-9201.4
MCA § 46-9-201 further provides as follows:
When bound over to any court or judge having jurisdiction of
the offense charged, bail must be continued provided that
the court or judge having jurisdiction may increase, reduce,
or substitute bail.
From the foregoing, Montana law clearly provides that Budeski,
as a justice of the peace, has jurisdiction to “admit to bail” any
defendant properly appearing before her. In addition, the foregoing
authority demonstrates that she has jurisdiction to “increase, reduce, or
substitute bail.” MCA § 46-9-201. Thus, based on the allegations in
Plaintiffs’ Complaint, viewed as true and construed in the light most
favorable to Plaintiffs, the Court concludes that Budeski had
jurisdiction over the subject matter before her.

4

“Judge,” as used in the statute, includes justices of the peace
because “judge” is defined in this section of Montana law as “a person
who is vested by law with the power to perform judicial functions.”
MCA § 46-1-202(10).
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The Court next must consider whether Budeski’s actions fall
within either of the two limited exceptions to judicial immunity. First,
the Court must decide whether Budeski acted outside of her judicial
capacity.
As noted above, MCA § 46-9-201 permits a justice of the peace to
“admit to bail any defendant properly appearing before the judge in a
bail proceeding.” Plaintiffs have not alleged that Budeski acted outside
of her judicial capacity in setting bail for criminal defendants appearing
before her. But they do argue that she acted outside of her judicial
capacity in allowing such defendants to post ten percent of the bond
amount with the court. The Court is not persuaded.
As noted, MCA § 46-9-201 clearly provides that judges have
jurisdiction to “increase, reduce, or substitute bail.” Allowing criminal
defendants to post ten percent of a bond amount is tantamount to
reducing or substituting bail, judicial functions squarely within a
judge’s authority under the statute. And it is generally well
established that “granting bail and fixing its amount are judicial or
quasi-judicial functions.” In re Application of Floyd, 413 F. Supp. 574,
575 (D. Nev. 1976) (citing Berkowitz v. U.S., 90 F.2d 881, 883 (8th Cir.

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1937)); see also Sanchez v. Doyle, 254 F. Supp. 2d 266, 271 (D. Conn.
2003) (“Setting bail is a judicial act.”); Clynch v. Chapman, 285 F.
Supp. 2d 213, 221 (D. Conn. 2003) (same); Jefferson v. City of
Hazlehurst, 936 F. Supp. 382, 389-90 (S.D. Miss. 1995) (“power to admit
to bail, and its accompanying obligation to scrutinize sureties, is clearly
a judicial act.”). Because Budeski’s actions were well within her
jurisdiction as a justice of the peace and were clearly judicial in nature,
the Court concludes that the first exception to the judicial immunity
doctrine does not apply.
Second, the Court must decide whether the other narrow
exception to judicial immunity applies – that is, whether Budeski acted
“in the clear absence of all jurisdiction.” Sadoski, 435 F.3d at 1079
(citations and internal quotations omitted). Based on the foregoing
analysis, the Court concludes that the second exception also does not
apply.
As noted, Budeski had jurisdiction over the subject matter before
her. And her acts of granting bail, setting its amount, and reducing or
substituting it were judicial functions performed within her judicial
capacity. No other conduct is at issue or challenged. Thus, it cannot

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reasonably be argued that she acted in the clear absence of all
jurisdiction.
For the foregoing reasons, the Court concludes that Budeski is
cloaked in absolute judicial immunity respecting Plaintiffs’ § 1983
claim against her contained in Count One of the Complaint. Thus,
Plaintiffs’ claim against Budeski in Count One should be dismissed.
B.

Count Two – 42 U.S.C. § 1983
Count Two seeks relief only against Park County. As earlier

noted, Plaintiffs claim in Count Two that Park County failed, with
deliberate indifference to Plaintiffs, to train and supervise Budeski
resulting in violation of Plaintiffs’ constitutionally-protected property
and liberty interests. ECF 1 at 5-6. For the reasons discussed below,
the Court will recommend that this claim be dismissed.
First, Plaintiffs have failed sufficiently to allege facts that give
rise to a constitutional violation. Section 1983 provides:
Every person who, under color of any [state law] ... subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law[.]
42 U.S.C. § 1983.
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“Section 1983 does not create any substantive rights, but is
instead a vehicle by which plaintiffs can bring federal constitutional
and statutory challenges to actions by state and local officials.”
Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (citing Cholla
Ready Mix, Inc. v. Civish, 382 F.3d 969, 978 (9th Cir. 2004) (internal
quotation marks omitted)). The statute’s purpose “is to deter state
actors from using the badge of their authority to deprive individuals of
their federally guaranteed rights.” Id. (quoting McDade v. West, 223
F.3d 1135, 1139 (9th Cir. 2000)).
Here, Plaintiffs allege that Park County deprived them of their
property or liberty interests in conducting their bail bond business.
The facts they allege give rise to this claim are that Park County failed
to train and supervise Budeski respecting her bail bond practices. ECF
1 at 5. An essential component of this claim, of course, is that Plaintiffs
must have a property or liberty interest in conducting their bail bond
business.
It is well-recognized that “the pursuit of an occupation or
profession is a protected liberty interest that extends across a broad
range of lawful occupations.” Wedges/Ledges of California, Inc. v. City

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of Phoenix, 24 F.3d 56, 65 n.4 (9th Cir. 1994). Although the precise
contours of this liberty interest are unclear, the Supreme Court has
observed that, to establish a liberty interest deprivation, there must be
facts alleged that approach a “complete prohibition of the right to
engage in a calling.” Conn v. Gabbert, 526 U.S. 286, 292, 119 S.Ct.
1292, 143 L.Ed.2d 399 (1999); see also Lowry v. Barnhart, 329 F.3d
1019, 1023 (9th Cir. 2003); Dittman v. California, 191 F.3d 1020, 1029
(9th Cir. 1999).
Here, Plaintiffs have not claimed that Park County’s alleged
failure to train and supervise Budeski resulted in their inability to
engage in their business. Thus, their allegations of curtailment of their
business fall short of the extent of liberty-interest deprivation
necessary under the foregoing authority.
Second, the plain language of the state statute upon which
Plaintiffs rely in asserting a property interest – MCA § 46-9-401 – does
not support their claim of a protected property interest. The statute
“sets forth numerous ways that bail may be furnished[.]” Siroky v.
Richland County, 894 P.2d 309, 310 (Mont. 1995). It provides, in
relevant part, as follows:

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(1) Bail may be furnished in the following ways:
(a) by a deposit with the court of an amount
equal to the required bail of cash, stocks, bonds,
certificates of deposit, or other personal property
approved by the court;
(b) by pledging real estate situated within the
state with an unencumbered equity, not exempt,
owned by the defendant or sureties at a value
double the amount of the required bail;
(c) by posting a written undertaking executed by
the defendant and by two sufficient sureties;
(d) by posting a commercial surety bond executed
by the defendant and by a qualified agent for and
on behalf of the surety company; or
(e) by posting an offender’s driver’s license in lieu
of bail if the summons describes a violation of
any offense as provided in 61-5-214 and if the
offender is the holder of an unexpired driver's
license.
MCA § 46-9-401 (emphasis added).
As evidenced by the use of the permissive “may,” the statute
authorizes various forms in which bail may be furnished. It does not
require either that bail be tendered in a specific form or that a criminal
defendant post a commercial surety bond. Thus, Plaintiffs have not
asserted a property right sufficient to invoke constitutional protection
through § 1983. Because Plaintiffs have failed sufficiently to allege
facts that give rise to assertion of a constitutional violation, Count Two
should be dismissed.
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The Court notes that, even if Plaintiffs had asserted a property or
liberty right in conducting their bail bond business, their claim is
deficient for an alternative reason. It is axiomatic that complaints
must contain sufficient allegations of underlying facts to give fair notice
and to enable an opposing party to defend itself effectively. Starr v.
Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Of course, a county or
municipal governmental entity, such as Park County, qualifies as a
“person” within the meaning of 42 U.S.C. § 1983, and can be sued for
damages under that statute. Monell v. Dept. of Social Services, 436
U.S. 658, 690 (1978). A plaintiff must demonstrate that the county
itself acted deliberately or culpably, and that there is a direct causal
link between the county’s action and the deprivation of a federal right.
Board of County Commissioners of Bryan County v. Brown, 520 U.S.
397, 404 (1997). Thus, a county can be subject to liability under Monell
and § 1983, but only “if a ‘policy or custom’ of the [county] deprived the
[Plaintiffs] of their constitutional rights.” Humphries v. County of Los
Angeles, 554 F.3d 1170, 1202 (9th Cir. 2009). A county is not
automatically liable under § 1983, however, if an employee applies a
policy in an unconstitutional manner. Ewing v. City of Stockton, 588

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F.3d 1218, 1235 (9th Cir. 2009) (citation omitted).
Here, in asserting their failure to train and supervise claim,
Plaintiffs only assert that Park County failed to train and supervise
Budeski “in connection with her bail bonds practices as well as with
providing her basic training in constitutional and statutory law.” ECF
1 at 5. In their “Facts Common to All Counts” section in their
Complaint, Plaintiffs have failed to allege any facts supporting their
claim that Park County failed to train and supervise Budeski. Also,
they have alleged no facts that could reasonably support an inference
that Park County had a policy, custom, or practice that deprived
Plaintiffs of their constitutional rights, or that Budeski was
inadequately trained because of Park County’s deliberate indifference
to Plaintiffs’ constitutional rights. Their claim in Count Two, therefore,
is deficiently pled and may be dismissed on this basis as well.
C.

Count Three – Injunctive Relief Sought for Alleged
Violations of Rights Protected by 42 U.S.C. § 1983
Count Three seeks permanent injunctive relief against Budeski

and unnamed “other Park County judges” from allowing forms of bail
not specifically authorized by M.C.A. § 46-9-401. ECF 1 at ¶ 23. The
Court is mindful that “[j]udicial immunity is not a bar to prospective
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injunctive relief against a judicial officer acting in her judicial
capacity.” Pulliam v. Allen, 466 U.S. 522, 541-42 (1984). But Plaintiffs
bring this claim under 42 U.S.C. § 1983. ECF at 6. Congress amended
§ 1983 in 1996 to prohibit the grant of injunctive relief against any
judicial officer acting in his or her official capacity “unless a declaratory
decree was violated or declaratory relief was unavailable.” 42 U.S.C. §
1983. Here, Plaintiffs have neither alleged in their Complaint nor
persuasively argued in response to Defendants’ motion that Budeski or
Park County – or any of the unidentified “other Park County judges” –
violated a declaratory decree or that declaratory relief was unavailable
to Plaintiffs. See Savoie v. Martin, 671 F.3d 488, 496 (6th Cir. 2012).
Thus, Plaintiffs’ claim for injunctive relief fails and Count Three should
be dismissed.
D. Count Four – Tortious Interference with Prospective
Business Relations under Montana Law
Plaintiffs, presumably, although not expressly, invoking the
Court’s supplemental jurisdiction under 28 U.S.C. § 1367, also assert a
state law claim for damages against Budeski and Park County for
tortious interference with prospective business relations. ECF 1 at 6-7.
To the extent this claim is asserted against Budeski, Montana law
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informs whether she is entitled to judicial immunity from this state law
claim. See Bass v. First Pacific Networks, Inc., 219 F.3d 1052, 1055 n.2
(9th Cir. 2000) (citations omitted).
Like federal law, Montana law provides that a judicial officer is
immune from suit “arising from the lawful discharge of an official duty
associated with the judicial actions of the court.” MCA § 2–9–112(2);
Silverstrone v. Park County, 170 P.3d 950, 953 (Mont. 2007). Judges
are cloaked with “absolute immunity for judicial acts.” Mead v.
McKittrick, 727 P.2d 517, 518 (Mont. 1986). A judge is not entitled to
judicial immunity if his act “(1) is not normally a function performed by
a judge, and (2) the judge acts in the ‘clear absence of all jurisdiction.’”
Hartsoe v. Tucker, 309 P.3d 39, 41 (Mont. 2013) (quoting Stump v.
Sparkman, 435 U.S. 349, 356-62 (1978)). But “[i]f a judge has
subject-matter jurisdiction over the act in question, he is entitled to
immunity.” Id. Montana’s “immunity statute applies to judicial acts
without limitation[,] ... even if the action taken was in error or in excess
of [the judge’s] authority.” Id.
As discussed above, Budeski had subject matter jurisdiction over
the matter before her. She acted in her judicial capacity in granting

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bail, setting its amounts, and reducing or substituting it. A judge
normally performs these functions. And Budeski clearly did not act in
the clear absence of all jurisdiction. Thus, she is entitled to absolute
judicial immunity for Plaintiffs’ state law claim against her. Count
Four, therefore, should be dismissed to the extent it is asserted against
Budeski.
To the extent Count Four is asserted against Park County, it is
also subject to dismissal. “The state and other governmental units are
immune from suit for acts or omissions of the judiciary.” MCA §
2–9–112(1). And the judicial immunity that a justice of the peace
enjoys extends to immunize the county governmental entity with which
the justice is employed. See Silverstrone v. Park County, 170 P.3d 950,
954 (Mont. 2007). Because, as noted above, Budeski is cloaked with
absolute judicial immunity respecting Plaintiffs’ claim for tortious
interference with prospective business relations, so too is Park County
under the foregoing authority. Thus, Count Four should be dismissed
in its entirety.
C.

Count Five – Declaratory Relief

In Count Five, Plaintiffs seek a declaratory judgment that

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“Defendants’ practice of accepting 10% of bail amounts is contrary [to]
the forms of bail allowed by M.C.A. § 46-9-401 (2013).”
Defendants request that the Court decline to reach this question
of state law. ECF 4 at 15-17. Plaintiffs respond that the federal and
state law questions are “inextricably intertwined” and that this Court
“can and should retain jurisdiction over all claims in the Complaint.”
ECF 6 at 14-15.
Defendants also urge the Court to dismiss Count Five because
Plaintiffs have not properly alleged that an actual controversy exists.
They argue that Plaintiffs’ declaratory relief request depends on “the
speculative conclusion that Plaintiffs’ contractual rights may be
interfered with in the future and would have been if they had a
contractual right in the underlying criminal matter.” ECF 4 at 15.
Plaintiffs’ brief did not respond to this argument.
A declaratory judgment may be sought only to resolve an “actual
controversy.” 22 U.S.C. § 2201. Courts may not give advisory opinions,
but may only resolve definite and concrete disputes. Aetna Life Ins. Co.
v. Haworth, 300 U.S. 227, 239-41 (1937); BP Chemicals Ltd. v. Union
Carbide Corp., 4 F.3d 975, 977-78 (Fed. Cir. 1993); see also Montana

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Dept. of Natural Resources and Conservation v. Intake Water Co., 558
P.2d 1110, 1122-23 (Mont. 1976).
Here, the fact allegations are vague and indefinite. It is not
clearly alleged that either Defendant has interfered with any specific
contractual relation of Plaintiffs, or whether they may do so in the
future. No facts are alleged with respect to any custom or practice of
Park County, and no facts are alleged that would give rise to an actual
controversy with respect to Budeski’s statutory discretion to “increase,
reduce, or substitute bail.” M.C.A. § 46-9-201. Accordingly, the Court
concludes that it should recommend that the declaratory judgment
claim should be dismissed as well, without prejudice to refiling this
state claim in state court. See generally Centennial Life Ins. Co. v.
Poston, 88 F.3d 255 (4th Cir. 1996); Natural Resources Defense Council,
Inc. v. U.S. E.P.A., 966 F.2d 1292, 1299 (9th Cir. 1992).
V.

CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Defendants’

motion to dismiss Counts One, Two, Three and Four with prejudice be
GRANTED, as set forth herein. IT IS FURTHER RECOMMENDED
that Defendants’ motion to dismiss Count Five be GRANTED as set

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forth above, and that this count be dismissed without prejudice.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendation must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived.
DATED this 25th day of July, 2014.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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