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Jacobsen v. State4/28/1999
any reasonable doubt of its meaning. They cite § 7-1-106, MCA, which states that " very reasonable doubt as to the existence of a local government power or authority shall be resolved in favor of the existence of that power or authority." The respondents contend that a lack of an express prohibition on first class counties raises a reasonable doubt as to the scope of § 7-4-2705, MCA, which therefore must be resolved in favor of the existence of Butte-Silver Bow County's authority to pass Resolution 1196. Finally, the respondents suggest that § 7-4-2705, MCA, should be read as a permissive statute, instead of a prohibitive statute.
. We agree with respondents. We recognize that § 7-4-2705, MCA, does not expressly limit the powers of first class counties and also that there is a reasonable doubt as to its scope which must be resolved in favor of Butte-Silver Bow County's power or authority. In Tipco Corp., Inc. v. City of Billings (1982), 197 Mont. 339, 344, 642 P.2d 1074, 1077, we acknowledged that statutes such as §§ 7-1-102 and -106, MCA, were enacted pursuant to an expansion of local government powers in Montana's 1972 Constitution. Today, § 7-4-2705, MCA, which has existed in essentially its same form since 1909, must be read in pari materia with §§ 7-1-102 and -106, MCA. As a result of this reading, our interpretation of § 7-4-2705, MCA, as a non-prohibitive statute is consistent with Article XI, Sections 6 and 7, of the Montana Constitution.
. Thus, we conclude that § 7-4-2705, MCA, did not preclude Butte-Silver Bow County from lawfully passing Resolution 1196 to appoint Assistant Attorney General John P. Connor, Jr., as Special Deputy County Attorney.
ISSUE 2
. Were Jacobsen's malicious prosecution claims time barred by a two-year statute of limitation?
. Jacobsen was acquitted of the charges against him on January 11, 1991. More than two years later, on July 27, 1993, he filed a notice of intent to sue, and on March 3, 1994, he filed his original complaint against the respondents. Applying a two-year limitation, as prescribed in § 27-2-203, MCA, for fraud and mistake, the District Court decided that Jacobsen's claims of malicious prosecution were time barred.
. Jacobsen argues that malicious prosecution is controlled by a three-year rather than a two-year limitation period. He asks us to apply the three-year limitation set out in § 27-2-204(1), MCA, for general and personal injury tort actions.
. Whether a two- or a three-year limitation applies depends on whether the tort of malicious prosecution is more appropriately characterized as a tort other than fraud or mistake. A cause of action for malicious prosecution has very different elements than a cause of action based on fraud or mistake. Therefore, we conclude that the three-year limitation found at § 27-2-204(1), MCA, for general and personal injury tort actions applies to Jacobsen's malicious prosecution claims.
. Even though the District Court erred when it determined that the malicious prosecution claims were time barred, the claims must still fail based on the reasons set forth below.
ISSUE 3
. Were the respondents protected from Jacobsen's malicious and negligent prosecution claims on the basis of prosecutorial immunity?
. Not only did Jacobsen allege that the respondents committed malicious prosecution, he separately alleged that the respondents were negligent in their prosecution. His argument on appeal is essentially that the respondents are not entitled to prosecutorial immunity against these claims, given Heffron's involvement in the investigative stages of his prosecution. He argues that
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