Cooney v. Park County

Thomas Russell COONEY and Lora Cooney, Appellants

John

(Plaintiffs), COUNTY, Wyoming;

PARK The State of

Wyoming; Wyoming Department Parole;

of Probation Chris J.

White; Mayor, Appellees and Robert

(Defendants).

No. 88-174.

Supreme Wyoming. Court of

April Cozzens, Billings, appel-

Lawrence B. lants. Gen., I. Sylvia Lee FACTS

Joseph Meyer, Atty. B. Gen., Hackl, Atty. Cheyenne, for Sr. Asst. Cooney guilty to pled In Thomas White. appellee Chris J. County, Wyo- writing checks in Park bad Scott, Shelledy Luhm & Edward G. accepted his ming. district court The Worland, Luhm, appellees State of plea years sentenced him to five guilty and Parole, Dept, Wyo., of Probation and supervised probation, required Mayor. Robert regular in contact with officers stay him Department of Probation Wyoming THOMAS, URBIGKIT, MACY, Before sentenced, Cooney Mr. Parole. When GRANT, GOLDEN, JJ„ and District Riverton, Wyoming, pa- in where his lived Judge. Cindy Sep- Johnson. officer was role Cooney permis- requested Mr. tember GOLDEN, Justice. Department move with his from the sion of a and child to Baroil because wife Cooney Appellants Russell Thomas job. granted Mr. change in his Johnson Cooney (Cooneys) appeal from Lora John permission him Cooney to move told 12(b)(6)dismis the district court’s W.R.C.P. by Depart- he would be contacted against appellees complaint sal of their in ment officer for continued su- Rawlins Attorney County Chris J. Deputy Park pervision terms his sentence. under the White, Wyo Wyoming, State ming Department of Probation and Parole in Cooneys to Baroil October moved probation officer Robert (Department), and 1985, and forwarded Thomas Coo- Johnson alleging a civil Mayor, (appellees) Reinke, Tracy Department file ney’s (1982), and under 42 claim U.S.C. § officer Rawlins. Unknown the Coo- Wyoming claims under the various state however, neys, erroneously ad- Johnson Act, Claims W.S. 1-39-101 Governmental Cooney his vised Reinke Thomas (Claims (Cum.Supp.1985) through 1-39-108 Barge, Wyo- family living were now La Act)1, probation revocation arising out of ming, instead of Baroil. Because of all proceedings. The trial court dismissed advice, Reinke returned the Coo- erroneous against complaint Cooneys’ counts in- ney file to Johnson Riverton and he, deputy on basis that White forward it to the De- structed Johnson to attorney, county had absolute Evanston, partment Wyoming, office liability. It further immunity from civil jurisdiction Department office with over alleging lia Cooneys’ counts dismissed the living probationers Barge. in La On Octo- bility Act under Claims 21, 1985, Cooney mailed the ber Johnson Wyoming Depart Wyoming, State of Department file to the office Evanston Parole, and Robert ment of Probation and assigned appellee it Robert where was it no of im Mayor, because found waiver file, receiving Mayor Mayor. After Act as those munity under Claims attempts to Mr. made unsuccessful locate parties. Cooneys Cooney Barge in La because the in Baroil. were challenge these rul- Cooneys both of decide what level We are asked to ings. meantime, Cooney, Mr. un- In the still will 42 U.S.C. 1983 we under § foul-ups, Department’s con- aware county who deputy to a extend by telephone Johnson several times tacted performs associated with those activities expected the contact he inquiring about (2) whether under the proceedings and in Raw- Department receive from officer a specific Act has been waiver Claims there calls, on those Johnson filed lins. Based immunity as to state sovereign reports verifying Cooney’s compliance Mr. claims. probation October terms During December and November affirm. We process, prosecution, infliction of emo- tion tional distress. intentional included malicious 1. Their claims probation imprisonment, revoca- abuse false Cooney telephoned Depart- Mr. court issued a bench warrant for Mr. Coo- ment office in ney’s February Rawlins to contact Reinke arrest on probation. about his February On Mr. Cooney sent a letter to Reinke in an 1986, comply effort to mid-January, Mayor In with contacted probation. the terms of his Similar con- Johnson to inform her that he could not Cooney tacts between Mr. and Reinke oc- Cooney Unexplain- locate Mr. in his area. during curred February and March 1986. ably, Mayor Cooney Johnson told that Mr. March, In early Mr. Cooney requested per- had Barge, Wyoming, relocated to La mission from Reinke to Glasgow, move to 1985, October and that she had not heard Montana, accept permanent employment. him from since his move. This incorrect 11, 1986, On March Reinke sent Mr. Coo- prompted Mayor January information on ney permission written to move. Having 24, 1986, appellee White, to call Chris who permission, received this Cooneys deputy then county attorney was for Park packed belongings their prepared County, Wyoming; Mayor told White that move Montana. March On Cooney Mr. had not been contact with highway patrol stopped officer Cooney, Mr. probation required by his officers as wife, his pursu- and child and arrested him terms of his sentence and that he had ant to the bench warrant issued because Department moved from Riverton without provided the information to the district permission. Mayor prepare White asked by Mayor Cooney and White. Mr. petition revoking Cooney’s Mr. probation. was taken County jail; to the Park Mrs. 29, 1986, January On telephoned Johnson Cooney and their child were left stranded Mayor Cooneys and told him that lived in Baroil with belongings. all of their Baroil, permission Depart- had from the Mr. Cooney remained in the County Park there, Cooney ment to and that Mr. had jail 21, 1986, April until when the district during been contact with her office Octo- denying court released him after peti- Mayor ber and November 1985. then tele- probation. tion During to revoke his his phoned relayed White those facts to Mayor incarceration nothing White and did information, Despite him. White reit- to inform the district court of their knowl- request Mayor erated his draft edge concerning Cooney’s Mr. compliance petition Cooney’s probation. to revoke Mr. probation. They with terms of his also Mayor followed White’s instructions and nothing help get Cooney did Mr. out of prepared a document entitled “Petition for fact, jail. during the time that Mr. Revocation of Probation and Bench War- Cooney incarcerated, January rant” dated 1986. In that doc- County the Park Public Defender’s office ument, despite contrary knowledge, requested Cooney Mr. be released Mayor Cooney swore under oath Mr. jail hearing until a could held to changed Depart- his address without the accuracy determine the of the information permission ment’s and failed to maintain underlying the arrest warrant. White re- Department contact with the after he request. fused to honor that Mayor petition moved. then forwarded the presented Cooneys necessary to White who it to the district After the filed the petition, Act, they court. Based on the the district claim2 under the Claims filed Cooneys ming, Department, Mayor 2. The commenced this action with a filed their 15, 1986, May appellee Wyo- supporting letter to State of motion to dismiss and July materials on ming Cooneys as mandated the Claims Act. That 1987. The filed a brief in 19, 1986, May opposition July letter claim was filed on to those motions on 1987. Wyoming September denied 5, the State of on The district court filed its decision letter on the 10, 1987, Cooneys appellees’ 1986. The filed Claims Act claim motions on November against appellee County against all Park on March which it dismissed claims White and They complaint against County, filed the in this case on the Claims Act claims Park 1987. Wyoming, Mayor May Appellees Department, 1987. White and Park Coun- State of 12(b)(6) ty upon filed a W.R.C.P. motion and an ac- for failure to state claims which relief 12(b)(6). By granted companying stipula- brief on June could be under W.R.C.P. parties, appellees Wyo- corresponding the State of order was filed on December tion of Gibson, 41, 45-46, 78 with mo- responded The suit. defendants 12(b)(6). 1001-02, (1957)). to dismiss under W.R.C.P. tions L.Ed.2d granted district court the motions. Cooneys appealed. Immunity B. Absolute White Imbler and Blake II. ANALYSIS dismissed the The district court § Review A. Standard of under claim White W.R.C.P. 12(b)(6) reviewing a dis- W.R.C.P. When 12(b)(6) ruling after that White’s status missal, accept alleged we the facts prosecuting attorney him made absolute as them more fa- complaint true view suit, regardless ly immune from of whether party opposing the mo- vorably toward the actually deprived Cooney Mr. of his actions Polk, v. Mummery 770 P.2d tion below. right, privilege, or immuni a constitutional 241, (Wyo.1989). A motion under this 243 Imbler ty. court on The district relied sufficiency legal the com- rule tests the of Pachtman, 984, 409, 47 424 U.S. 96 S.Ct. granted sparingly by the plaint, should be applica L.Ed.2d 128 and this court’s generally is favored courts and not district Rupe, Imbler in Blake P.2d tion 651 Id. We recognize that a appeal. on § denied, cert. (Wyo.1982), 459 U.S. upon be dismissed action should not 1208, 1199, (1983). it pleadings appears beyond “unless doubt interpreted grant It cases both those plaintiff prove can no set of facts in that immunity ing prosecutor White absolute entitle support of his claim which would Patterson, liability from under 42 Joseph civil U.S.C. § him to relief.” (citing Conley 549, Cir.1986) public (6th policy reasons.3 F.2d Cooneys potential plaintiff. wisdom in- The then moved the district Conventional 1987. that, generally, are criminal defendants on the motions forms unlikely to finalize its order to court prosecutorial 54(b) to actions as hav- view on dismiss under W.R.C.P. December ing good Consequently, been taken in faith. gave parties notice The district court 1987. generate a overturned action could law- concerning responses opposi- this motion and damage against prosecu- These claims suit. Wyo- appellees were filed the State of tion large may disproportionately a tors drain Mayor. ming, Department The district prosecutorial would amount time—which hearing January held a on the matter on spent serving justice be better the criminal Cooneys' granted which it after system; and entered an order to that effect on motion 3) may qualified professionals to choose not Cooneys January appealed The high-profile post prosecutor serve February order final on increased likelihood of un- because an motion, its this court dismissed that On own prosecu- on the exercise toward influences appeal court’s W.R.C.P. because district on torial discretion the increased drain 54(b) did not contain at least a certification lawsuits; prosecutorial time caused explanation for the district court’s conclu- brief 4) prosecutors ad- be more reluctant to Tader, take action. Tader v. sion to produce in their cases or to mit weaknesses Cooneys (Wyo.1987). remand the P.2d 1065 On exculpatory Appel- evidence. later-discovered 60(a) a a W.R.C.P. motion for revised made judges may be more reluctant reverse late to final order was entered on order. revised damage might spark to do so convictions if suits; 7, 1988; appeal was taken from that June order. 5) judicial in-place satis- review mechanisms factorily operate prosecutorial to deter mis- 3. Imbler identified those reasons as: Moreover, prosecutors subject conduct. 1) likely prosecutor a is more sued discipline, professional formal removal declines, decides, than he rather when proceedings liability; and criminal thus, liability prosecute; 6) the desire avoid § in a 42 U.S.C. action reexamination always prosecutor’s a many slant conduct to- would decisions made un- prosecutions. This result clashes ward fewer would der time and information constraints prosecutor’s duty charge to enforce retrying with the be- involve of the criminal vigorously; jury law decid- the 2) fore a different from the one who potential poses charge risk the volume of lawsuits ed criminal and would run the prosecutor’s conflicting decision mak- decisions. threat to serious ing. 992-94, Id., 424-29, moves 424 U.S. at 96 S.Ct. Each time individual, exposed L.Ed.2d at 139-43. he an identifiable plain language distinguish of 42 1983is standing U.S.C. and leave those § cases, deceptively simple others, because it makes no in its Circuit and some immunity liability.4 prosecutor engaged mention which hold that a history provision, however, appellate investigative certain enjoys, activities application necessarily reveals that its in immunity the absolute associated with traditional judicial process, only good-faith vokes common-law defenses of but immunity official which extend im comparable policeman’s. absolute defense munity prosecutors in certain situations. agree Appeals We with the Court of Imbler, 424 U.S. at 96 S.Ct. at respondent’s activities were inti- (citing Tenney L.Ed.2d at 136 v. Bran mately associated with the dhove, phase 95 L.Ed. process, the criminal and thus (1951)). Goff, See also Yaselli v. were to which the reasons functions L.Ed. 395 absolute apply with full We have no occasion to consider force. Imbler involved a 1983 action in which § require whether like or similar reasons Imbler, defendant, an exonerated criminal aspects prose- those sought damages against prosecuting at- responsibility cutor’s that cast him in the torney prosecutor’s alleged for the know- investigative role of an administrator or ing testimony suppression use of false officer rather than that advocate. illegal of material evidence to obtain an only prose- hold that in initiating We a Imbler, 415-16, conviction. U.S. at presenting cution and in the State’s 987-88, at 47 L.Ed.2d at 134-35. The case, prosecutor is immune a from prosecutor successfully moved for dismis- damages civil suit under 1983. § 12(b)(6) ground sal under F.R.C.P. on the Id., 430-31, 994-95, 424 U.S. at absolutely that he was immune civil from (citations 47 L.Ed.2d at 143-44 and foot- liability and the Ninth affirmed. Circuit omitted). not gative prosecutorial conduct done 201,106 at L.Ed.2d at S.Ct. U.S. prosecutorial function that furtherance a omitted). added; (emphasis citation at 514 protection immu of absolute demands probes of the It the character ultimate 430-31, Imbler, nity. 424 U.S. at required by any prosecutor who decisions 995, 47 L.Ed.2d at 143-44. also would make decisions in situation 478, 513-16, Economou, 438 Butz v. U.S. malice, question; allegations of self-inter 2894, 2914-16, 57 L.Ed.2d est, like will not vindictiveness (certain administra 920-22 federal protected defeat absolute are entitled absolute immu tive officers Morris, Myers functions. cert, nity they analogous pros- when function (8th Cir.), denied, 1437, 1446 810 F.2d protected Im ecutorial functions under L.Ed.2d bler). However, expressly re the Court (1987); Mo Ybarra v. Reno Thunderbird explanation an of the difference be (9th served 723 F.2d Village, bile Home noting tween the two classes conduct Cir.1984), cases cited there and numerous “Drawing proper a line that: between Therefore, reviewing in. court must may present ques these functions difficult charac its on the functional not allow focus tions, require does us to but case not prosecutorial conduct at issue to ter of the anticipate Id., response to them.” 424 U.S. at emotional skewed an 995, 47 144 n. As situation. There S.Ct. at L.Ed.2d at 33.5 particularly abusive fact stated: In ecutor in his role cast investigative aspects We cate.33 involve or similar "33 Imbler, have him in the role of We ^[******] actions recognize no reasons occasion to plurality office prosecutor’s preliminary require immunity for those that the duties of the as advocate for the State rather than that consider whether like an the Court responsibility administrator initiation of expressly of advo- pros- which witnesses to indictment whether to file an whether initiation dence to when to sensitive such, quired constantly, courtroom. prosecution to make decisions on a wide issues. These present. Preparation, prosecute, present the criminal against particular and actions prosecuting attorney information, call, whether to dismiss case to include process course apart what whether both questions grand jury, defendants, his other variety duty is re- trial, evi- illustrate, following process. fed the criminal discussion will “Probation” is de wrestling involving eral and state courts have been fined as “a sentence not confine questions with those difficult ever since. imposes ment which conditions and retains recently remarked The Eleventh Circuit authority sentencing to modi dividing amorphous, line is and the fy “[t]he the conditions of the sentence or to process determining on side of the which resentence if the offender he violates the particular line kinds of conduct fall has 7-13-401(a)(x) (emphasis conditions.” W.S. proceeded case-by-case on a basis.” Marx added). To the sentencing judge assist Gumbinner, (11th 855 F.2d grant pro his consideration of whether to Cir.1988). Cooneys’ 1983 action § offender, judge may to an bation direct against prosecutor requires that we White prosecuting attorney pro or the state legal venture into this difficult terrain. parole investigate bation and officer to report concerning to him factors he appeal Cooneys their contend may weigh. W.S. 7-13-303. The sentenc deputy county attorney’s wrongful con- ing judge may place proba the offender on Cooney Mr. duct was his decision have judge tion under such terms as the deems jail thirty-eight arrested and detained in 7-13-302, 304, appropriate. W.S. days. They argue deputy county that the judge sentencing continuing juris “The has attorney’s assisting activities of the De- probationer diction over a and inherent partment, using perjured probation power probation granted. to revoke Kno petition revocation to obtain a bench war- (Wyo.1978)]; P.2d arrest, bel v. State Cooney’s Mr. rant for and of caus- [576 1254,1255 ([491 (Wyo. State v. Reisch P.2d ing Cooney to arrested and detained Mr. * * 1971) State, ]) Smith v. 598 P.2d administrative nature and not the were (Wyo.1979). In equivalent prosecutor’s Smith we rec functional ognized, judge’s sentencing “a trial duties proceed- in a criminal role as an advocate correct, particular in a case are not over and a ing. they deputy county If absolute, probation granted ease im- criminal wherein attorney enjoys qualified, not until a defendant has satisfacto munity closed their civil action. rily probation period pro or his served Application Imbler and Blake bation revoked.” Id. at 1391. We further of observed Against backdrop the of Imbler and

Blake, must determine whether the we probation is a matter over which the deputy county attorney’s challenged activi personal sentencing judge takes a hand. intimately associated the ties “were with His decision is one that he has made and, phase process,” the criminal of judgment upon the basis of his own of therefore, “functions to which the were potential. re- the defendant’s He has immunity apply reasons for with absolute the defendant’s con- tained control over Imbler, 424 U.S. at full force.” acquaintance of an intimate duct because 995, 47 L.Ed.2d at 143. S.Ct. at person gained as a with defendant through in the court- his own observation part Probation Revocation as Crimi- of study special room and a of his back- Proceedings nal ground. position is in a No one better accomplish sentencing judge than the question, sentencing the court’s Without keep objects probation of of track granting probation, supervision of supervision pro- probation, progress. and in of its probationer’s service of officers, bation, through probation his probation proceed volvement revocation per- important of the most duties ings judicial phase one are well within present questions, obtaining, reviewing, difficult but this case does may require the evaluating point, require anticipate evidence. At some not us to them. decisions, respect 430-31, Imbler, to some with at U.S. at rather doubt functions as an administrator Blake, no (quoted P.2d at L.Ed.2d at 144 Drawing a as an officer of the court. than proper added)). (emphasis 1101-02 may line between these functions persons opportunity one judge. formed the trial It is consult Id. June, lowing probation to trace whom pletely impersonal. So February, individual concern over each defendant his functions ling reasons for the ^[*] probation he has guilty plea ^[*] ** in which he cannot be com- placed *. revocation ^[*] proceedings particular judge his confidence. there are ^[*] a continuation proceeding ^[*] retain an compel- held ^[*] al- judge pelli, 411 U.S. probation is not based reasonable present evidence on his own 31-32. L.Ed.2d 656 whose assistance decision on the merits after confront and examine made 408; hearing who makes allegations against Although the W.S. doubt” standard of (1973); Minchew, 685 P.2d at 7-6-104; a conscientious facts. he any person who has reasonably decision upon Gagnon him, counsel, behalf, a W.S. 7-13- sentencing “beyond a proof, to revoke judgment v. Scar desires, a sentencing judge’s revocation decision respect proba to the institution of With an abuse of discretion reviewable under proceedings, if tion revocation either State, Longwell v. 705 P.2d standard. probation and parole state officer Minchew, (Wyo.1985); and 685 P.2d at county attorney determines that considera retaking given should or reincar- tion cerating probationer allegedly has who review of the nature and light of this probation, supervision then that imposition, violated condition substance county attorney notify probation Wyo- shall under officer or revocation of law, Cooneys’ argu- 7-13-408(a). ming reject we court. W.S. Gronski v. Cooney’s ments Mr. criminal case was State, (Wyo.1985); 700 P.2d Min proceedings closed and his criminal were State, (Wyo.1984); 685 P.2d chew deputy county an end White when 1320,1323 State, (Wyo. 600 P.2d Weisser challenged Al- performed activities. 1390; 1979); Smith, 598 P.2d at and Uno though probation true it is revoca- “[a] State, (Wyo.1978). P.2d bel v. hearing is a trial on a new criminal tion not probation county or a attor Either officer charge,” recognize it is “an extension of we proceed the revocation ney initiate sentencing resulting procedure ings: charge, coupled conviction of the basic request revoca- in both instances the probationer’s process with” the due entitle- and, judge tion directed based [is] Minchew, 685 P.2d at 31. we ments. As showing petition, it upon the [is] shown, granting of proba- have from the judge who whether [decides] supervision probation through tion apprehension for the to issue warrant probation, the sentenc- revocation Furthermore, in the both of defendant. continuing ing judge jurisdiction has over instances, the court that it [decides] [is] probationer during sentencing the the ultimate revocation issue. the stage proceeding. the criminal Without of Weisser, P.2d at 1323. Just as the doubt, sentencing stage this is an inte- a granting probation of is addressed to the phase gral part the of the crimi- of sentencing judge, discretion of the sound process. emphasize nal We and add to Gronski, P.2d at so its revocation. is probation, supervision earlier: of said “The through probation [and, his officers we add, county attorney] the is one of statutory provisions and our case would Our important performed by the protec most duties proper process provide the due law Smith, P.2d judge.” the trial at 1391. probationer faced with to which a tions entitled. possible probation revocation is Association Prosecutor’s Ac- Intimate of our many safeguards which Among the tivities With Judicial Phase Criminal in that circum probationer affords the law Process notice of the rights are written stance allegations, foregoing important of the In review and content our of this nature stage judicial phase sentencing an hearing judge, probable-cause before specifically to receive process, special monitoring. Finding the criminal we have proba- the played referred to the roles the federal prosecutor’s activity of submit attorney. county tion and the As ting officer information Federal Parole shown, Wyoming we under law these have protec Commission falls within Imbler’s perform activities of inform- officials vital tion, explained: the Court ing sentencing judge possible proba- the probation officer is to immuni- entitled them presenting tion violations ty preparing submitting pre- when the judge probation under revocation report sentence a criminal case. We safeguards procedures. process Due report integral noted that an “[t]he during stage judge this when the abound part sentencing process, petition for revocation from receives report the preparing probation offi- “and, thereon, county attorney based cer acts direction at the of the court.” gives probable-cause consideration to the Here, responsible warrant, of an arrest and there- issuance prisoner’s] case forwarded informa- [the proba- hearing after conducts with prisoner] tion about the Parole [the Weisser, P.2d at present.” tioner request. Commission at the Commission’s attorney Viewing deputy county White’s duty assigned This the U.S. attor- challenged perspective, activities in we ney’s part office as role in the its reject Cooneys’ that his argument chal- prosecution sentencing of federal lenged activities are not the functional cases. Parole decisions are the continua- equivalent prosecutor’s role as an sentencing process, tion and the proceeding. in a criminal We are advocate Attorney’s Assistant United States re- challenged his convinced that activities ports part Parole Commission are “intimately advocatory and associated with process. of that While undertaken process” judicial phase of the criminal literally court, at the direction therefore, and, “are to which functions intimately these are so activities associat- immunity apply reasons for absolute with judicial phase ed with criminal Imbler, full force.” prosecutors process as to cloak the 995, 47 at 143. S.Ct. at L.Ed.2d immunity from absolute suits for dam- support find substantial for our con We ages. viction several decisions federal Id. at 1434. appeal. In circuit courts Harris Men (7th Daley, In Hamilton v. 111 F.2d Cir.1987), (11th endez, F.2d 737 an ac Cir.1985), an action under 42 U.S.C. § 42 U.S.C. the court re tion under § an gave the court absolute lied im on Imbler extended absolute attorney allegedly assistant state’s who munity allegedly to a state’s who complaining testify forced two witnesses perjured conspired with the himself and although testimony their would be he knew deputy have judge and a sheriff to allegedly false and an arrest who caused probable probationer without arrested alleged probation warrant to issue for probation have cause and to revoked. Imbler, Relying on the court violation. (11th Thompson, F.2d 1433 Allen said: “Probation revocation is a criminal action, Cir.1987) (per curiam), a civil im- proceeding. absolutely Prosecutors are immunity extended absolute to a initiating prosecution mune from suit Attorney an States assistant United presenting the state’s case.” Hamil- who, at the Attorney Federal United States ton, Addressing 111 at 1213. F.2d request, wrote a let Parole Commission’s probationer’s arrest war- claim about the and the ter the Bureau Prisons Parole * “ * * rant, observed, have the court we allegedly falsely advising that Commission long securing held the attendance prisoner guilty drug of additional witnesses is associated with he had not trafficking for which been convicted, against prose- claim process and that which resulted in the charged or activity is barred arising en cutor prisoner’s parole eligibility being date Kieser, immunity. prisoner’s being Daniels v. larged reclassified absolute 1296 denied, (7th Cir.1978), 69 cert. Circuit

586 F.2d Seventh 99 60 L.Ed.2d 659 441 U.S. (7th Lopez, 790 F.2d 44 Henderson v. also, Jones, (1979).” Taylor v. Id. See Cir.1986) (assistant attorney on state’s Cal.Rptr. Cal.App.3d 175 678 121 legal county unwar- advice sheriff whose the court extended absolute where plaintiff rantedly jailed who arrested and who, attorneys county district citation contempt had earlier satisfied a prejudice, racial allegedly motivated support). pay child for failure to revoking probation. were involved Eighth Circuit recent deci- more our review (8th Hazel, F.2d Cir. Casey-El v. 863 29 ap- courts sions the federal circuit 1988) (state prosecutor allegedly with- following find the courts extend- peals, we test results that would held ballistics prosecutors who ing absolute innocence). accused’s have established initi- make in connection with the decisions (8th Hartje, F.2d 1203 v. Williams proceedings: ation of criminal Cir.1987) (county allegedly prosecutor autopsy report and concealed threatened First Circuit testimony eyewitness giving false into Maine, 787 F.2d Campbell v. State of inquest prison- at coroner’s into black Cir.1986) (1st (prosecutor withhold- jail- er’s death at the hands of his white present- ing exculpatory information ers). case; ing exception does not bad faith (8th Cir.), Morris, Myers v. 810 F.2d exist). cert, denied, 108 S.Ct. Keene, F.2d City Malachowski v. (1987) (county prosecutor 98 L.Ed.2d 58 cert, Cir.), (1st denied, 479 U.S. false, mis- allegedly knowingly offered (1986) (city 93 L.Ed.2d 56 de- leading perjured testimony juvenile attorney prosecuting delinquen- evidence, adequate stroyed and without cy proceeding). presented investigation initiated and case proceedings). in child sexual abuse Second Circuit Ninth Circuit (2d 853 F.2d 73 Cir. Hennessy, v. Baez (9th F.2d McCarthy Mayo, v. — cert, denied, -, 1988), U.S. Cir.1987) gener- (special deputy attorneys (1989) (assist- 102 L.Ed.2d proceedings allegedly al initiated criminal mistakenly attorney initiated ant district knowledge of limi- with that the statute filed it grand jury indictment and run). tations had which later dismissed it when the court (9th Pope, F.2d 1072 Ashelman v. discovered). mistake was Cir.1986) conspiracy (alleged between (2d Abrams, 810 F.2d 358 Cir. Barr v. predetermine judge (assistant 1987) general state judicial proceeding). outcome of a proceeding contempt criminal initiated Demery Kupperman, 735 F.2d 1139 leading to and obtained arrest warrant (9th Cir.1984)(state attorney gen- deputy imprisonment be- an unlawful arrest testi- allegedly eral induced witnesses to charges dropped). fore falsely li- fy in connection with medical proceed- cense revocation administrative Circuit Sixth ings). Patterson, (6th F.2d 549 Joseph Tenth Circuit cert, Cir.1986), denied, Grubbs, (10th F.2d Meade Cir.1988)(state general (state knowingly attorney failed prosecutors allegedly complaint initiate a civil criminal complaints issuance of criminal obtained false, for their on certain state officials arrest warrants based de- statements). alleged physical violence toward and coerced appear parole prisoner care witness did not and the of medical nial board found no reasonable cause to revoke custody). their parole. parolee’s the The court concluded Winner, (10th 771 F.2d 424 v. Martinez parole challenged that the officer’s activi- 1985) investigate (prosecutor failed to Cir. ties were in nature and de- suspect’s guilt). independently a serving immunity. Using of absolute Im- (10th Joslin, 712 F.2d 435 Cir. Lerwill v. approach, “functional” the court de- bler’s 1983) prosecu- (city initiated a parole pro- termined that “the revocation he was tion for violations state law indistinguishable initial cess is from the invoke; procured an not authorized and, parole process arguably, is even more justice from a arrest warrant Id., adjudicatory nature.” at 974.- Con- peace required who did not state follow (8th tra, Pickett, Ray v. 734 F.2d 370 Cir. warrant, issuing procedure in (federal 1984) probation alleg- officer who magis- excessive bail before a advocated' parole edly report given falsified violation trate). however, immunity; only qualified the fed- probation ques- revocation scheme in eral Eleventh Circuit tion was administrative in nature and sub- (11th Gumbinner, F.2d 783 v. Marx stance, judi- Wyoming’s, unlike which is Cir.1988) (state attorney and assistant cial); Garmon, 710 F.2d Galvan attorney caused father to be arrest- state (5th Cir.1983) (the court held that a state cause jailed probable without ed and officer, probation mistakenly prepared who tests father later blood revealed when probation a motion to revoke and caused had could not have been the one who jailed probationer to be arrested and sexually four-year old assaulted his only quali- twenty days, was entitled to daughter). immunity). The failed fied Galvan satisfactorily explain why it believed With reference level probation criminal pro- stage revocation of the probation involved accorded officers process intimately less with was associated proceedings, we note bation revocation phase presentence .than the judicial recently extended absolute Fifth Circuit presentence stage and the stage. Both parole officers.6 Farrish intimately probation stage revocation Board, 836 F.2d Mississippi Parole State of the phase associated Cir.1988), (5th under 42 action law. process Wyoming criminal under on parolee was arrested U.S.C. § judge. municipal issued warrant upon not called in this case to As we are later, parolee’s parole officer days few immunity to appropriate decide the level paroled prisoner arrest warrant issued a entitled, under probation officer is causing parolee detained without case we need the circumstances preliminary hearing informal bond. At his Galvan, similar Ray, discuss or the further requested presence parolee Sanborn, F.2d 270 case Wolfel officer parole witness. The complaining (6th Cir.1982) curiam), denied, (per cert. they said could not hearing officer 1115,103 74 L.Ed.2d That compel appearance. the witness’s Cooneys us urged on however, appear; that wit- position. did not supportive witness their analogically hearsay presented statement explained, ness's was of the nature have view As we hearing along sentencing procedure with other evidence. and substance supervision proba probable probation, cause to exist. officer found and the proce custody stages for the final parolee held tion revocation within parole dure, closely related hearing the state and in view before revocation procedure played by the month hearing, final held a roles within board. At that probation sentencing judge, the officer hearing, complaining after preliminary 1756, 1759, 778, 782, 93 purposes have no distinctions revocation For parole on been drawn between offenders L.Ed.2d Scarpelli, probation. Gagnon v. on offenders P.2d — attorney, attorney’s the the The county county reasoning Ninth Circuit’s in Demo- challenged advocatory, activities are not immunity ran which afforded to a state administrative, intimately and are associat probation allegedly deliberately officer who phase judicial ed with the of the criminal presentence report, applies as falsified a process. deputy county well to attorney the in this reasoning closely case. This is paralleled probation Because the revocation both Tripati opinion, the Tenth Circuit’s stage presentence stage and the probation which involved a federal officer. sentencing procedure are intimately associ here, reasoning Applying that we believe judicial phase ated with the of the criminal deputy county attorney’s chal- process, sup further we find substantial lenged integral activities serve a function port holding in the for our numerous deci process. the independent judicial to He extending pro sions absolute to sentencing judge. acts arm of the as an presentence bation officers involved stage required by He is sentencing process. investigate law Federal probation report judge upon the officers have been held absolute to the circumstances ly preparation probation in their possible immune and submis The violation. presentence reports. sion prospect liability See Dorman damage under (2d Cir.1987); v. F.2d 133 Tri Higgins, 821 seriously U.S.C. 1983 would erode the § United, pati Immigration v. States county ability to attorney’s carry out his Service, (10th Naturalization F.2d 345 independent fact-finding function and denied, Cir.1986), cert. 108 thereby sentencing impair judge’s abili- (1988); Spauld L.Ed.2d 767 ty judicial to carry out his duties. Nielsen, (5th Cir.1979). ing 599 F.2d 728 v. plethora procedural safeguards sur- probation State officers have held been ab filing probation rounds the of a revocation solutely preparation immune for their and petition. petition The reviewed presentence reports in other submission of judge parte ex probable- who makes an Berry, courts. Turner v. 856 F.2d 1539 probationer cause re- determination. (D.C.Cir.1988); Witt, v. Demoran 781 F.2d copy petition ceives and is entitled (9th Cir.1985); Callion, Burkes v. counsel, persons to consult with whose Cir.1970); (9th F.2d Friedman reasonably desires, assistance he to con- F.Supp. (C.D.Cal.1968) Younger, witnesses, front complaining present evi- (also extending immunity to dis absolute dence behalf and to on his own the sentenc- Chesser, attorneys); Hughes trict ing on the judge’s decision merits after (11th Cir.1984), F.2d 1489 Shelton conscientiously hearing the In facts. addi- (W.D.N.Y. F.Supp. McCarthy, 699 judicial review, tion that first level of 1988). identified three Shelton probationer is afforded review this court justify immunity for factors which absolute sentencing judge’s ensure that revo- involving pre- acts probation state officers cation decision was the result of an (1) reports: sentence nature of abuse discretion. of sound (2) the performed, impossibility function deputy We believe it evident that a coun- guaranteeing accuracy of the informa ty making who assists court in reported, tion the routine to be during sentencing these determinations judicial scrutiny adversary review and process performing activities which are reports. We think these mentioned last exclusively for the benefit the court. applicable equally proba factors are therefore, hold, that these challenged We stage support tion revocation lend intimately county activities are associated with the extending absolute to the judicial peti phase process of the criminal attorneys prepare present who probation tions functions to which reasons for ab- for revocation Shelton, F.Supp. judge. immunity apply solute with full force.7 misconduct, against prosecutorial professional Safeguards form sanctions and criminal Imbler, damages prosecutions. actions other than within 42 U.S.C. Court made it a point process prosecutors that: exist outside the to remind §

1299 that no statu appellees after it concluded of this issue with our discussion We close sovereign immunity existed tory waiver of words: these upon which those under the Claims Act immunity is to purpose The of absolute could be based. The Claims Act did claims prosecutor protect the function of the against create new causes of action pro criminal key participant Wyoming, employees, agencies, its State of choice The doctrine involves a be cess. subdivisions; rather, it statuto political prosecutors all from ha protecting tween parties rily affirmed the idea that those official acts rassing lawsuits over their generally enjoy sovereign immunity from injuries oc providing redress for all exception of certain liability civil with the acts. When such casioned those immunity specifi conduct which that for law, it is inevitable choice is made County v. Board waived. Pickle cally of hurt. But will be someone Platte, County Commissioners 764 made, and it has been of of choice must be v. Oroz 262, (Wyo.1988). P.2d 266 Cf. it is better to allow long decided that County Commissioners Car Board of go of than to wrongs to unredressed few County, 575 P.2d 1155, bon (Wyo. 1159 the risk of re expose prosecutors all 1978). provides Act a “close- Claims mis their occasional honest taliation for immunity liability, ended” waiver of Biddle, Gregoire 579, F.2d 177 takes. suing arm of the injured party an an cert. de Cir.1949) (L. Hand, J.), (2d 581 the Act must first Wyoming under nied, State 949, 803, 94 L.Ed. 339 U.S. complained of establish that the conduct (1950). 1363 im specific statutory waiver of fits into a Williams, F.2d at 1208. l-39-104(a); munity liability. W.S. Immunity Act C. Claims Gillette, City Abelseth v. P.2d Appellees All Cody Boehm (citing (Wyo.1988) Commerce, Country Chamber P.2d court dismissed The district (Wyo.1987)). claims all of Cooneys’ state tort logically suggested policy disbarment conviction is that the er Court has never and/or This large punitive immunity dam- compel effective than a much more civil considerations analyzing place ages action. When governmental § also award in officials for certain cases, arbi- we will not beyond law. the reach of the criminal them trarily contemporaneous these judges, civil im- conclude that with absolute Even cloaked centuries, necessarily ineffective or inade- punished remedies are munity crim- could Doing require court to quate. so would inally deprivations constitution- willful incapable policing prosecu- strength hold that we are rights § of 18 U.S.C. al on investigated present- properly analog prosecu- torial abuses § the criminal Bar, majority by Wyoming or that a acts. ed to us no better for his willful tor would fare Moreover, necessarily Wyoming prosecutors would vio- perhaps stands prose- their constitutional oaths rather than among acts could de- late unique, officials whose lawyer. that char- rights, Conclusions of in his cute another prive persons of constitutional on discipline by and must not be based amenability professional acter are untenable Bell, Gray F.2d speculation. Compare peers. under- These checks association of his (D.C.Cir.1983) (judicial supervision un- argument imposition of civil mine the exclusionary professional sanc- only way prose- der the rule liability insure that is the from the are often too attenuated tions mindful of the constitutional cutors are provide and inef- process more than "hollow persons of crime. accused remedies.”). Higgs Id., See also v. District fectual 47 L.Ed.2d at U.S. at County Douglas, 713 In and For the (citing Re- Court ABA Code of Professional 142-43 Standards, (Colo.1985). They must come su- P.2d sponsibility 7-13. and ABA § EC judicially (e), noticeable 1.1(c), Commentary, pp. record or from from the pra, §§ n. Goodwin, omitted). Briggs v. 569 F.2d 44-45) (other Accord sources. citations and footnotes cert, denied, (D.C.Cir.1977), always Wyoming prosecutors are sub- Abusive (1978) (where pros- 57 L.Ed.2d professional and criminal ject sanctions year lapse a four and one-half indicated Wyoming for Professional record Rules ecutions. See 3.8, 4.1, 3.3, 3.4, alleged prosecutorial misconduct with- Attorneys since at Law Conduct of inquiry). record evi- Without out official and 8.4 contrary, we must assume investigated, cases should dence properly these Once prosecution professional and criminal Wyoming sanctions Bar and the Attor- pursued aggrieved private available to an are remedies ney with zeal. The deterrence office General’s prosecutorial abuses. prop- a deterrent citizen as prosecution that results from to abusive existed to statutory rested motion dis no waiver Appellees their Cooneys’ Cooneys’ on the claims. miss the state tort claims the allow state tort complained assertion the conduct that argu- those Cooneys have countered any did not fit into of the enumerated by urging ments a broader waiver of sover- immunity. exceptions They argued to that 1-39-112, eign immunity prem- W.S. under only applicable exception Cooneys the the legisla- subsequent on a review of its ised set out in could would be the one assert history. They explained that this court tive (Cum.Supp.1985), pro which W.S. 1-39-112 1985. published opinion April in in its Hurst entity governmental vided: “A is liable for during legisla- year, In the the 1986 next damages resulting from conduct of tortious session, legislature W.S. tive amended acting while law officers enforcement substituting “peace phrase 1-39-112 (empha scope within the of their duties.” officers.” officers” for “law enforcement added). Wyo.Sess.Laws ch. sis on became effective That amendment plain Appellees argued 2. also that § 18, 1986, days three Mr. Coo- March after interpretation of this would be statute Cooneys fur- ney was incarcerated. opinion in proper light of this court’s on to ther noted that the amendment went State, 1130, 1132-33 Hurst 698 P.2d repealer that provide for an automatic (Wyo.1985). change phrase “peace officers” would Hurst, In faced whether the we the issue to officers” effec- back “law enforcement subject- plain language of the same statute Wyo.Sess. tive June See 1986 Wyoming ed State Board members Cooneys ch. 4. The theorized Laws § parole to civil liabil- of Parole or its officers legislative this was intended that maneuver allowing ity alleged negligence for their during year period create a two time state, which parolee leave the after he up a state legislature which the could set numerous murders. This committed program provide monies self-insurance that analysis court’s noted Hurst pay liability of a to be for the available legislature given phrase not “law had 1-41-101 “peace officer.” See W.S. statutory defini- enforcement officers” a They through (Cum.Supp.1986). 1-41-111 Hurst, P.2d 1133. This court tion. at argued the 1986 au- also amendment’s problem by looking to the resolved that phrase “law tomatic resuscitation meaning “law officer” plain enforcement into the current ver- enforcement officer” phrase “peace officer.” which led us to the stands sion W.S. 1-39-112 as evidence legislative in- phrase Id. That indicated give phrase a legislative intent persons peace to those tent limit officers meaning than the articulated broader one authority to make arrests or with direct this line of this court Hurst. Under upheld keep peace, and court this reasoning, legisla- they concluded that the parole offi- trial court’s determination that phrase ture intended the “law enforcement that kind of cers were not vested with 1-39-112 have a broad- officers” W.S. interpretation plain authority. That inception the stat- meaning er from the (Cum.Supp. language of W.S. 1-39-112 sovereign immu- ute and tort that it waived 1985) compared case was also law any nity for appellees this case defining the class jurisdictions from other governmental other officials who assert persons enforcement of- considered law general authority to the laws. more enforce ficers, generally supported case law argu- The district court considered Relying at on that distinction. Id. parties ments of on this issue both this court held this information it In its letter appellees. ruled decision sovereign immunity under the waiver of statutory rejected Cooneys’approach to did phrase enforcement officer” not “law 1-39-112, interpretation and dis- of W.S. Parole Board or its officers. extend to the against all missed their state tort claims Appellees have asserted that under Id. finding them barred appellees to be unambiguous language of W.S. either the Hurst, both, sovereign immunity. 1-39-112, holding in or the government against advance its This is appeal, Cooneys es- citizens. arguments they story This sentially the same made statism1 its worst. Cooney unjustly Thomas candidly re- Russell who was the district court and before jail thirty- arrested into and thrown quest that we overrule our decision days eight appearance without they desire. The Hurst to reach result upon a creative, but, complaint intentionally based on Cooneys’ theory stripped if perjurious false statements trappings, placing its advocates this court government employees. is absolute This legislative clairvoyant in the when role of immunity for official misconduct defined as unambiguous language control- “ to have statute, 1-39-112, ‘entitlement not to answer ling plainly does W.S. * * ” * damages conduct in a civil action.’ persons not waive tort who v.Morris, 1101, Murphy (8th 849 F.2d not “law enforcement officers” we Cir.1988) (quoting Forsyth, Mitchell legisla- phrase defined that Hurst 2815, might lurking have tive intent been (1985)). L.Ed.2d changes language in behind recent up- is not a substitute for W.S. 1-39-112 Finally, travesty tragedy of it is a and holding reading unambiguous plain a of an governmental protect rules of law that mis- that, does and stare statute. Hurst decisis that, responsibility. By it is conduct in this demands that we follow Hurst case. strange like paranoid lemming a and any statutory do waiver of We not see march, universally criticized academic immunity for under sovereign appellees accurately review which was described thir- plain language of W.S. 1-39-112. We af- justified ty-one years ago by “argu- to be 12(b)(6) firm the district court’s W.R.C.P. wry fairy ments offer a blend of [which] complaint. appellants’ dismissal of story.” Gray, and Private tale horror Servants, Wrongs Public 47 Cal.L.Rev. JJ., MACY, filed and URBIGKIT (1959).2 has development “This dissenting opinions. of logical occurred the context inconsist- Justice, only URBIGKIT, cursory and reason- dissenting. encies often ing.” Grimm v. Arizona Bd. Pardons IN I. THE ISSUE PERSPECTIVE Paroles, 115 Ariz. 564 P.2d & (1977). Immunity responsibility pro- questions society This case whether by the public officials is not mandated public remedy when officials com- vides a statute, a even rather constitution nor but perjury mit suborn and acknowl- perjury, pro- policy public to be public where pointless edge perjury commission tected the miscreant official per- random incarceration of a and almost innocent damage injured the loss and refusing justification. In son without in a Society citizen. cannot be sustained disbarment, or crimi- consider censure arbitrary, if malicious system democratic occur, none of will I prosecution, nal which perjurious is not considered to conduct damages for at least an reject civil will not punishable. reprehensible both war; This is civil alternative. attainable White, Initially, society against in fairness Chris J. not members attorney, and county prosecuting by representatives of assistant government, but inferiority Gray, supra, government, Cal.L.Rev. at initiates Superiority of citi- 2. zens, guar- predominance rejection composition by quotation Shake- from William Measure, II, States Con- amendment the United anteed 2: speare, Act Scene Measure for Wyoming Rights Bill of stitution It "O! is excellent Const, Constitution, e.g., Wyo. art. 4.§ strength; tyrannous giant’s To have a but it is controls of all economic "Concentration giant....” To use it like highly planning centralized in the hands of tyrannous, substituted for If monstrous is government.” New Interna- Webster’s Third philosophical battle lines become clarified. (1971). Dictionary White v. tional Cf. Cir.1949), Biddle, (2nd Gregoire v. 177 F.2d 579 Towers, P.2d 37 Cal.2d ” 94 L.Ed. cert. denied 339 U.S. "major step Immunity toward ‘statism.’ is not (1950): Id. P.2d at litiga- responsible review in civil Mayor, probation officer for the would be Robert against Privileges tion.4 and immunities Department of Probation Pa- Wyoming demo- why they responsibility are an anathema for role, “prove” this case does not society appropriately cor- they may cratic and most they did or fact did what what responsibility. damage civil choosing escape full rectable have done. review, proper office of should they concepts are faced factual opera- protect governmental stage where this case constrained of the law with abject needlessly tion and not to insulate progress provides tactical as- did guilt allegations whether misconduct. sumptions of fact true.3 misconduct, corruption, Alleged official dirty hidden here behind the majority perjury that the

I would concur with the denigra- immunity. From these explored in skirts of could be further occurrence only by the rights guaranteed not tions of disciplinary action Wy- but also and crimi- United States Constitution could lead disbarment which Constitution, in was oming which written against both the prosecution nal However, young society for a new vigor the of a officer. real- parole and state, time impassionately I dissent. It is Actually, far istically, neither will occur. doc- everyone, again to our foundational justice to look whether fairness and better percentage providing a writing law a of total cases bad on small 3. The vice of this case is (not necessarily er- hope finding peripherally of fault reversible One could assumed facts. ror) any disciplinary by court actually so bad as reference the real facts were that be state we assume them to made. what now by prosecuto- Perhaps only meaningful for Suborning perjury a substitute record. application compensation meanness. Since the be of Ham- official is unlimited would rial B.C., Code, assump- that will write is based on to where White law we murabi’s disposition Mayor spend thirty-eight days that made tion of the facts were would dismiss, County jail write with an prisoners the motion to to a in assumption as without access we Park validity prayer families, any, with a but if wait with- court and while their govern- lawyers, professionals and somehow or home for some other bureaucratic out funds explana- agents some better must have mental majordomo to the incarceration. It should end cruelty perpetration of than inten- for the recognized tion we at a time where write victims, criminality upon hapless tional responsibility can harm be asserted economic Suborning child. and Lora their small Tom painfully against attorneys a as- under Rule 11 infinitely perjury is worse in Co., official Kapco Mfg. C & O Inc. v. sessment. may prohibitum have oc- than whatever Inc., (7th Cir.1989), malum Enterprises, 886 F.2d teenager, Cooney, wrote insuf- $46,- when as a curred counsel failed in defense of his where which, activity as a checks societal ficient fund family’s penalty basis of a 780.07 Rule 11 on the knowledge banking anyone activi- for with college.” needs for their "children in contended ties, commonplace. is however, Myers, Compare, Ill. Freeman App.3d IU.Dec. 547 N.E.2d 586 interesting is in ABA observation found 4. An non-responsibility how this shows Monogram, Identifying Counsel, Role in Re- The Judicial irresponsibility has wandered. for 1.12—1.13 ferring direction, Prosecutorial Misconduct deliberately ignoring incited court (1989): court, granting upon trial mistrial. The mistrial, attorney’s granted fees the other also to Any a court has ordered case in which reversal, appellate even litigant. The court prosecuto- because of reversal of a conviction should, though finding to been a the misconduct have as a of court misconduct matter rial order, body stated: disciplinary violation of the court policy, referred to the for attorney’s fees] investigation, [awarded Such sanction or not the referral whether dangerous chilling upon prose- have a effect opinion. Even when could mentioned attorney’s ability represent client. to not sufficient re- to cutorial misconduct conviction, tactics should not be constrained quire of a if a court sees Trial reversal vigorous advocacy adversely prosecutor’s could fear a mistake on a fit to comment may conduct, penalty. in severe financial There refer the matter result it should also judge body investigation. it be difficult to disciplinary be cases where would for mistaken tactics and deliberate this character would between inextricable rule of An * * * Additionally, in danger appellate premeditated court conduct. its in that create own necessities, may be clearly intentional situations might if the be reluctant reverse pursuant automatically appropriate relief disciplinary follow. able fashion review would proceedings. prose- contempt heavy apparent within the volume It is Freeman, 547 N.E.2d at complaints not even in Ill.Dec. cutorial misconduct sloganistic found rence to is called uments are written to be extension personnel pages governmental our attention the state blank when constitution it uncaring au- where is stated: misconduct occurs. Statism’s tonomy from oppression in denied relief power people, All is inherent in the simply acceptable should not be within the governments free all are founded on Wyoming clear mandate of Constitu- authority, their and instituted their response by tion. caricatures of immu- peace, safety happiness; for the ad- nity oppressive absolution miscon- they vancement of have at these ends all duct, perjury, malfeasance and we now times an inalienable and indefeasible adjudicatory write “no” for the state’s fu- alter, right reform or abolish the Wyoming ture and Constitution government they manner as such protection protec- citizens whose of our proper. think

tive sacred and interests the unalienable Wyo. Const. art. § provided. were right people to be secure in houses, persons, papers and their effects II. WE AS JU- WRITE WYOMING unreasonable searches sei- WITHIN WYOMING RISTS violated, zures shall and no not be war- CONSTITUTION cause, upon probable rant shall issue but justice only I to find cannot retreat affidavit, supported by particularly de- punishment the miscreant where recom- scribing the place to be searched more pense appropriate- to the victim could person thing to be seized. ly society’s Consequently, interests. serve 1, 4. Wyo. Const. art. § grant affirming I dissent the of person deprived life, No of shall be 12(b)(6) motion to dismiss. We W.R.C.P. liberty property process without due misplace improvidently responsibility of law. auger majority out criminal conduct 1, Wyo. Const. 6. art. § unwilling opinion. accept I fear am also Absolute, arbitrary power over the justification responsibility of as the basic of lives, liberty property of freemen government. operational failures of Im- republic, in a not even in exists nowhere 409, Pachtman, 424 U.S. bler v. largest majority. case, 984, 47 128 was bad L.Ed.2d 1, Wyo. Const. art. 7.§ lacking his- a statistic derivation accurate every per- open All courts torical need not be extended shall be base and fur- reputa- sweep person, empirical injury than son for done to ther United justice property far tion or shall have admin- Supreme States Court broom not so sale, delay. denial or deny rights now to to this victim.5 A deter- istered without attempted be to deduce a can dated to has nevertheless ratio- 5. Prosecutorial incorporation.” years implying See twenty-five nale for such abo 1896 or after enactment Wade, 93, 30, 1625, Act, 20, April Act of Smith the 1871 Klux Klan Ku J., 1659, (1983) (O’Connor, 1871, 22, 1, (codified dis- chapter Stat. 13 at 42 17 § Coleman, 691, senting). supra, Ind.L.Rev. at (1982)). initiating 19 U.S.C. The case was § 1983 poli- 117, crazy-guilt interplay Stinkard, "from discerns cy, 44 146 Ind. N.E. 1001 Griffith (1896). law, purposes Imbler, common and the section U.S. at S.Ct. at See 424 96 immunity cases that the in the has Kreimer, 1983 Court Law The Source in Civil 990 engaged in the of common law.” The creation Light Rights on Some Old Section Actions: inequali- English long law excised the has since 601, 609, (1985). n. 35 For this 133 U.Pa.L.Rev. ty public official. Di- citizen reason, very obvious a reconstruction histori- (8th cey, The Law Constitution 189 ed. analysis application cal immunities in Jaffe, 1915) Against (quoted Suits Govern- Coleman, invalidity. clear See Section 1983 has Actions, Damage 77 ments and Harv.L. Congressionally-Mandated Officers: 42 U.S.C. § 1988: (1963)). Gray, supra, See abo Rev. Approach Section to the Construction of Cal.L.Rev. 303. (1986), which Ind.L.Rev. "[njowhere states that accuracy accompanying debates so- In current sarcasm—but —for Massey, analysis, passage act of did see The Juris- the Ku Klux Klan called historical License, Congress prudence Duke L.J. state that common law Poetic members of (1989). incorporated into the 1871 Act. The Court prose- function of the livery system. brought against the state Suits the commission of in such courts as the cutor does not include such manner and Gershman, Prosecutorial Mis- legislature may by law direct. crime. B. (1989). also the rule that conduct Const., Wyo. art. 8.§ testimony by the knowing perjured use of limiting the No law shall be enacted process due prosecution denied a defendant damages recovered for amount of to be requires that the defendant of law any per- causing injury or death of Foster, People v. granted a new trial. son. Ill.App.3d 138 Ill.Dec. Wyo. art. Const. § Tiersma, (1989). N.E.2d 478 See also unobtrusively involved is the oath of Not ” Truth, Perjury: “Literal Language of surely should include an as- office which Re- Ambiguity, and the False Statement where, under prosecuting sistant (1990). quirement, 63 So.Cal.L.Rev. oath, governmental official sacred justifica unacceptable It is whatever part: states in process and fairness to tion to demean due affirm) (or I solemnly swear “I do State, accused, Phillips v. 17AP.2d 118 obey and defend the consti- support, will State, 774 P.2d 87 (Wyo.1989); Harvey v. States, and the con- tution of the United up (Wyo.1989),in now to cover sub order state, I and that will stitution of this official. perjury orned committed discharge my office with the duties * * P.2d 1096 Rupe, Cf Blake . fidelity; (Wyo.1982),cert. denied Wyo. art. Const. § 1199, 75 L.Ed.2d 442 Unfortu trust, I do to that sacred obedience nately, majority gives curtain of not draw down the insulative in this instance alleged criminal behavior closely protect malefactors to so Imbler probation decisions by moving parole and says majority simply accepting what prosecutor’s prosecution criminal into the must not allow reviewing “the that Likewise, majority obliter function. character of the its focus on the functional seeking in Wyoming Constitution ates at issue to be skewed prosecutorial conduct the federal courts where justification from particularly response emotional to an officials did not achieve office those There is no bad fact situation. abusive of this state. allegiance to the constitution exception prosecutorial faith to absolute immunity prosecutorial conduct that for III. FACTS PRESENTED I do not requirements.” meets the Imbler adequate development of Lacking any analysis upon which the reject the function record, relies; impossible it is to under- I charac- the factual majority strongly so resist only why happened what public stand not but perjury from another offi- terizing the arrest war- resulting re- in the issuance of cial as a function of consequent incarceration fulfill the most rant and sponsibilities in order to requires as we can justice Cooney.6 To answer position in the criminal de- weighty interpreted jettison- dispose should not be ] to dismiss to 6. Use of the motion ing experience dealing immunity provides years in qualified cases or absolute record, disability. singular comparable as de- other affirma- with issues: Like its own defenses, therefore, unsatisfactory singularly immunity to either veloped, qualified is is tive pro- factually justify decision or to something required trial court the defendant should be protection official from Similarly, to the accused prove. vide plead and the courts to allegations. what be unsubstantiated qualified immunity like should treat claims of Immunity Kinports, in Sec- author in Qualified pretrial and should afford the other motions Questions, Unanswered tion Cases: The plaintiff opportunity to conduct limited recognition in 599-600 Ga.L.Rev. immunity discovery qualified relevant to the developed immunity problem of court the entire ruling analysis favor of the defen- before application, approached require a reasoned dant on that issue. problem: this Thoughtful authority has followed this view. Fulton, (10th level, Maxey By Maxey F.2d Fitzgerald, procedural Harlow On a \v. Nashua, N.H., Cir.1989); City U.S. Gomez Cooney Mayor alleges facts sonnel. that con- examination these establish properly of conduct fits where this course tacted White with this new information This is not a into absolution. again petition to prepare was directed to it is typical prosecution, a crimi- malicious anyway, though revocation revoke even official conspiracy perjury nal to commit knowingly false and statement would be deny rights to the victim. constitutional perjurious Mayor prepared effect. documents, petition including Basic containing petition and a bench warrant and warrant are included revocation doc- false statements and forwarded The decision letter of the official record. presented peti- uments White who the trial was confined to factual court to the trial a bench tion court and obtained complaint. Briefing in allegations of the pur- warrant. On motion this record for obviously trial defendants ex- court poses, conspired both to ob- state officials facts tended the and com- contravention arrest Cooney by tain the use of false plexity allegations any without records statements under oath. made support produced documents fitting I into have trouble this scenario statements made. statutory prosecutorial discretion and state January We that on do know Something provisions is revocation. Mayor when contacted White state that missing in the and remains translation probation Cooney contact his had failed to re missing public when the defender later officers, proba- directed the Cooney’s quested release and White re petition prepare tion for revoca- officer to improperly incarcerated fused so later, Mayor was days tion. Five advised without languished jail individual Bairoil, residing Wyo- Cooney was hearing appearance thirty-eight ming permission grant- accordance Brewer, Morrissey v. day probation per- ed and in contact with was s.'7 (D.N.H.1989). Maxey acting By Maxey, guilty In lie official who is violation F.R.D. 432 actually Tenth Circuit Court of realized 890 F.2d at Constitution if she Mitchell, unconstitutional, Appeals discerned that conduct or if the her "sweep acting 411 did not so 86 L.Ed.2d under the reasonable official "[Djiscov- discovery. broadly” deny proper recognized same circumstances would have ery '"narrowly permissible” which it is unconstitutionality conduct. the addition, of that only facts tailored to uncover those needed defense should be affirmative ” * * Maxey By *.' only on claim rule to es- available defendant is able if the defense, Maxey, (quoting Lion Boulos requisite F.2d at 282-83 tablish the elements of the (5th Cir.1987)). Wilson, given 507-08 plaintiff 834 F.2d after the reason- present satisfying discovery this case opportunity How much more nec- able to conduct the adequate evidentiary an essary support opposition would if we had defen- to to the her prosecuting parole immunity. and base where the accommoda- dant's claim of This in officer testified under oath cross-examination competing of the considerations will tion they they securing why public deserving pro- what did the as to did shield those officials lawsuits,” continuing Coo- arrest the confinement of and from while at tection “insubstantial nothing ney, wrong ensuring government done when he had offi- the same time that arguably justified. discharge even may impunity result was that not "with their cials if we We to determine have aban- to way now need in a known to them duties that is principle the United States doned the stated or in violate the United States Constitution a ago, century regress Supreme transgresses to to they over a Court that know manner clearly should present which is antithetical the basic result rule.” established constitutional accountability (quoting on which our Kinports, supra, notion of Ga.L.Rev. at 661-62 800, 814, government premised. Fitzgerald, U.S. Harlow 2736, country high 2727, (1982) is so that he is "No man in this and L.Ed.2d 396 Butz 507, 2894, Economou, 478, the No officer of law set above the law. U.S. 2911, impunity. (1978)). All the at defiance law L.Ed.2d 895 government, highest from the the officers of reader, judicially I For the of the information lowest, law and are are creatures file, No. Park notice what criminal obey it." bound to County, Wyoming, as facts known shows (quoting Kinports, at supra, Ga.L.Rev. 610-11 personnel probation information and file Lee, 16 Otto United States v. prosecutor. possession of the (1882)). L.Ed. 171 end, Cooney charged in a December 1983 progeny Russ was and its should To Harlow involving multiple complaint pub- checks deny qualified criminal to a be read to LaBarge. She stated that she furnished ber Note 7—Continued aggregate funds” in an written with "insufficient that information. the Rawlins office felony made, when amount sufficient to constitute a totalling As a result of that mistake however $500. more than He was returned Ev- case file was transferred from Rawlins to anston, Colorado and the Information extradition from servicing away, as the office 200 miles August Arraigned Sep- was filed tember, LaBarge County. Apparently, the in Lincoln appeared he before the court and en- and, away August petition just to revoke went 24, 1985, guilty plea. January he tered a On 6, 1985, officially November it was dismissed on following plea apparently was sentenced attorney’s county another member of then, agreement. By check much of the bad staff. leaving only paid, had been indebtedness among between and What then occurred remaining. $446.92 Rawlins, pro- Riverton offices of Evanston and years Cooney sentenced to a term of five was White, parole assistant bation and and Chris (1977) probation before under W.S. 7-13-203 any Cody, is undisclosed remaining sentence and restitution record, alleged present except what was importance of the W.S. The to him $446.92. Cooney pleadings. We do know that was told (1977) probationary, process is that 7-13-203 personnel contact from Rawlins wait for expiration of one time after the "[a]t 29, 1986, January Riverton received two that on original parole, year from the date Cooney monthly reports with advice from power have the in its discretion court shall finally discharge per- The parole one from Rawlins had contacted him. terminate no plea guilty.” agent report and annul the verdict or son sent additional forms which were arrangement probationary presentence has Cooney This completed by and mailed to the Rawlins a conviction for a the effect of avoidance of got Cooney permission then from office. felony of citizen- for the individual to avoid loss job since his Rawlins office to move to Montana including ship adverse effects and associated Following layoff, at Bairoil had terminated. possession exposure. Obvious- federal firearm ly, for which he found available work in Montana great Cooney that he it was of moment granted requested permission to move was requirements comply probationary with the office). (by the Rawlins protect his fami- his future career and maintain What we do not know is when both White Actually, ly and small child. follow- of his wife officer, Mayor, probation Evanston knew by hearing ing 21, April revocation dismissal of the 1986, making regular Cooney was in Bairoil and subject this civil dam- which is the require- proper comply efforts to with the suit, discharge age early petition for was Cooney brings probation. this case ments of his Department Probation and Parole filed 7, 1986, by alleging February that on before he by an order entered December and followed petition for revoca- was arrested and when defendant, Cooney, be and "that said Russ jail thrown in tion was filed and thereafter hereby granted complete a full and dis- he is days, Mayor thirty-eight knew both White charge probation this matter.” from doing apparent what he was and where. It is and, drilling rig Cooney was a deck hand transcript probation revocation from the sentence, employed living in Worland and April following hearing that was held payments Two were Corbin Well Service. 15, 1986, and his arrest of March boss, that White the restitution order as mailed made on county attorney, taking tough probation file had been were Riverton where his attempting On Au- because of his work status. excuse and transferred gust stand in defensive 12, 1985, White, county for the attor- Chris justify despite actual what occurred the known County, petition ney’s filed a first office in Park facts. payment alleging restitution for revocation petition for revocation and bench war- $225.00, leaving remaining balance (Evanston), designated County rant form Uinta hearing petition was set $221.92. about February January and filed dated to he heard a notice of motion scheduled on following attestation: included the The Riverton case worker November Agent, Mayor, Probation and Parole Robert superior arrange- and her was contacted Parole, being Department Probation and Cooney her and ments were made between law, according deposes duly and sworn At about the same payment of that balance. herein; petitioner says the that he that he is time, arrangements Cooney made for his also Petition; foregoing and has read the above Bairoil, where he was transfer of residence employed. thereof; the contents and that that he knows rig working on a He had been verily as he believes. the same is true Riverton, commuting dis- Bairoil and revocation, petition And in substance eighty way. approximately each miles tance of Finding housing stated: available, he wanted to move Defendant has failed to main- 3. That said family instead of the to Bairoil to be with his Wyoming Department of tain contact with the commuting arrangements. Bairoil is in Sweet- changed and Parole and has his Probation County, parole office but is served water prior notification. address without Rawlins, County, adjoin- the closest Carbon County Attorney’s office has 4. That the Park ing Raw- case file was transferred to town. The probation above viola- 15th, been notified of the the Riverton in October. On October lins recommended that the Defen- Cooney tions and has she agent a call from in which received probation be revoked. was at a box num- dant’s he said his address believed

13Q7 agents retaking officer or or rein- follow, likely is hear carceration for such requires preliminary period hearing reasonable after the or ing. may necessary arrange waiver as be retaking or IV. reincarceration. PROBATION REVOCATION PROCESS (b) Any hearing pursuant to this sec- probation may tion be before the state providing for revo- Wyoming statute officer, parole designated hear- terms, was, explicit obviously in its cation person ing any officer or other autho- applied context or intent for pursuant to of this rized the laws state Cooney. and incarceration arrest parole alleged probation, hear cases of or (a)Where of a supervision probation- violations, except conditional release er, or releasee parolee other conditional hearing person officer shall be no being pursuant to di- is administered allegation making of violation. having any criminal or rective (c) respect any hearing pursu- With jurisdiction, parole, the board of juvenile 7-13-409, 7-13-410], to this act ant [§ any of the state’s correctional institu- probationer, parolee or conditional parole probation tions or the state releasee: court, appropriate agents notify shall (i) Shall have reasonable notice whenever, in their or institution board writing of the and content of nature view, given to consideration should be allegations including to be made retaking or reincarceration for a viola- purpose that its is to determine notice probation, parole or other condi- tion of probable there whether cause to be- notification, a Prior to tional release. lieve that he has committed violation with hearing shall held accordance be may proba- lead to a revocation of 7-13-409, within a this act [§§ 7-13-410] tion, release; parole or conditional time, hearing unless reasonable (ii) permitted Shall consult or probationer, parolee waived persons any whose assistance he appropriate of- conditional releasee. desires, reasonably prior to hear- practica- soon agents or as ficer shall ing; ble, following hear- any termination (iii) right to confront Shall have court, report to the board or correc- ing, any person examine who has made institution, copy furnish tional against him, allegations unless record, hearing make recommenda- hearing officer determines that disposition to be regarding the tions present a substan- confrontation would parolee con- probationer, or made subsequent present danger or tial court, by the board ditional releasee person persons; harm to the Pending institution. correctional admit, explain (iv) May deny or section, the pursuant to this proceeding may alleged present violation custody take appropriate agents including affidavits and other proof, parolee or probationer, detain the evidence, in of his support contentions. rea- involved for a releasee conditional (d) proceedings A record of the shall prior hear- period time to the sonable preserved either and, hearing made and steno- appears if ing it 7—Continued Note February ary and thereafter before Cooney White, either know where and did or both petition, prepared at the direction of This doing as what he was information Mayor was and by and mailed to Park executed was clearly the Rawlins and River- available both County which the bench warrant as the result of know, why they did I ask Cooney consequently parole offices. If arrest- ton and was was issued signed why was Cody perjurious jailed miles was the form in over 250 ed in Bairoil and probation revoca- action taken for continued distant. record, Additionally one peti- this wonders paragraph tion? on Unquestionably, three of the why order to show cause completely the same form of an false. The factual issue was tion previously prepared been by not used as had record what oc- was resolution was denied than the bench warrant. Mayor White before Janu- rather between curred Reisch, graphic through (Wyo.1971). means or the use of a v. 491 P.2d 1254 This recording machine. develops depart case from an executive petition ment for revocation under W.S. (1977) (renumbered 7-13-409 in 1987 W.S. apparently 7-13-409 and there was 7-13-408). stated, Simply to W.S. no hear recognized order to show cause as in no pro ing agency, the executive the state State, (Wyo. P.2d 1159 Murphy v. parole provid bation and officer was ever was,correct 1979), in where other offenses became Gag ed. If Justice Powell 778, 790, in Scarpelli, presented non v. 93 basis for revocation and not 1756, 1763, non-compliance impli ternal rule which was requirement prosecu there was no for the State, cated here. See likewise Smith v. tion to become involved in the non-adver (Wyo.1979). 598 P.2d 1389 Weisser sary proceeding. State, (Wyo.1979) 600 P.2d 1320 cannot be there, compared petition filed since apparent

It that this court has created is department county and not pathway probation parole a further revocation,8 hearing attorney and a was held within six judicial revocation as a Knobel State, (Wyo.1978), appli- days following interesting 576 P.2d 941 arrest. It is 33(f): record, cation of W.R.Cr.P. observe that in this official we do original probation office not even have probation The court shall not revoke ex- copy peti or a records activities cept hearing the defen- after however, (See, supra.) tion to revoke. n. present apprised dant shall be State, (Wyo. See Mason v. 631 P.2d 1051 pro- grounds on which such action is 1981), J., Rooney, specially concurring. posed. The defendant be admitted Clearly, revocation addressed conditions pending hearing. to bail such pecu and not other law violations. This is missing here is a What is first found liarly depart probation a function of the arrest, appear notice to without second was proper ment within which involvement any appearance immediate court the in- county attorney totally is undis defendant, finally, any op- carcerated knowing closed. Not what documents ex pending portunity for consideration of bail ist, impossible it is to determine whether hearing. The “conduct” established equally mailman could have served the suborning prosecutor for the was first White, performed by function as ex same revocation; second, perjured petition for cept probation not to convince the officer to presentation to the trial court of a false perjury. proper Not even commit or offi document; finally, denial of a bail ar- cial discretional decision of the raignment release of the incarcerated is authenticated this record. Knobel, Compare individual. 576 P.2d posted. a bond was None of these where misbegotten Within the facts of this oc are within the dis- functions9 currence, question one also is called to gambit. even Imbler cretion within authority White’s and discretion to retain Cooney jail appearance without bond or statute, Actually, nothing ex- is found thirty-eight before a commissioner for by implication, cept that the office of days. separate Non-release itself mis attorney represents proba- county the state legal. conduct—moral and Sullivan Los proceedings tion officer in revocation County, 12 Cal.3d 117 Cal. respon- Angeles where that office has function (1974). sibility parole Rptr. 527 P.2d 865 Intrinsic to violation revocation. no that determines White either the or administrative revoca There is record opportunity parole process filed a motion for revocation. tion is an immediate State Nothing Obviously, literature the intended sort of fairness ad- of record or available Gless, practice. Knobel, establishes a normal Ne- where lim- dressed in incarceration was Cf. Primer, braska Probation Revocation: A 68 Neb. eight days ited to before the bond was estab- practice L.Rev. 516 petition The usual released, probationer lished and the is not appear. to revoke and notice to “Most found here. alleged appear voluntarily response violators appear.” Id. at 521. to the notice if are now also 547 N.E.2d we of reasonable hearing establishment or philosophy to apply that same Weisser, going to P.2d 1320 and Kno bail. See attorney. private misconduct of similar bel, P.2d 941. providing remedies re- These alternative REMEDIES AS JUS- ALTERNATIVE Y. public the immunized official sponsibility to NON-LIABILITY, FOR TIFICATION avoid the conduct in order to bad DISCIPLINE OR PROFESSIONAL monetary responsibility chilling result of PROSECUTION CRIMINAL prosecu- either criminal would substitute anger that morali- I attenuate the Before pun- as the professional sanction tion why major- ty requires by discussion v. Love- Kentucky Bar Ass’n ishment. absolving serious wrong on the law ity is The over- lace, (Ky.1989). 778 S.W.2d financial re- prosecutorial misconduct a concur- powering speciosity arises with is re- damage, reference sponsibility for justice delivery knowledge that in the rent gratui- remedies the alternative quired to if are seldom system, these alternatives advanced, 7 of in footnote tously as buried unacceptable actually applied. It is ever discipli- suggesting majority opinion, prosecutors sel- public since fraud on the prosecution. nary action and criminal associa- prosecute prosecutors bar dom to dis- State, purposes of a motion infrequently punitive for the take action tions defense, pleading has perjury. filed a which suborned prosecutorial miss correct Ramseur, admitting suborning perjury Compare N.J. the effect State New under a false where the of a document A.2d and execution January gave notice that it Jersey Supreme on public official Court oath ago. One to refer breaches years' now four would not hesitate That was (death case) disciplinary prosecutors criminal bar in vain for either would search Green, 405 People v. White is committees. See disciplinary action. prosecution or (1979). See, N.W.2d 448 Mich. directory to be a in the current bar shown Price, however, Kan. Matter Wyoming State Bar and member (1985) more than conduct Bakersfield, P.2d 986 California. a resident now Smith, case, (1990). see just one but State Directory Bar Wyoming State P.2d 666 245 Kan. Department of longer with the Mayor is no and Parole. Probation ordinary pre provides an but This case Before example non-action. dominating majority disturbing part of the most done, have been what should considering rath- we consider opinion is the dissertation by recognition only prove the rule repayment to we providing economic er than only not to idle words the alternatives that alter- damage sustained the victim for remedy for the admitted pursued as a responsibility ex- be injury native remedies upon official perpetrated upon proper evil argued that a chill It is ist. individual. hapless private wronged but requirement created performance is raise, however, whether question do obligation repay for We to defend alternatives, involving prosecu either these or mali- inflicted malevolent damage for a crimi Otherwise, and incarceration suggested tor conviction it is cious conduct. suspension or disbar charge and/or provided, nal immunity is not if the of law profession is, practice Immunity of ment cannot work. government livelihood, if public official’s is the course, irresponsibility and which only excused pre pursued, would really existent and wrongdoing liability for intentional denied avoiding public official by Compare ferred public office. in the use of a if analysis, responsibility.10 This damage Ill.Dec. Foster, Ill.App.3d allegation of factual defense many record as a current In review of case, cases, or both the either it is in- misbehavior. absolute misconduct probation have officer prosecutor and the why charged individ- comprehensible to me perpetrate conspiracy answers to some a motion to dismiss permits defenses on ual arrest, also but answering perjury caused not pleadings judgment so on the By emplacing victim. the innocent retention of established not at least statements are planned perjuri- use of the quoted concept agreement accept generally we Biddle, Gregoire Cooney testimony, was arrested Hand in ous Judge Learned cert. denied (2nd Cir.1949), thirty-eight days without an jail held for 177 F.2d 579 prosecuting L.Ed. 1363 at- opportunity for bond. only punish party means of a third provides torney was advised wrongdoing, public any officials who have been innocent of Cooney ment was responsi performance wrongful conspiratorial their conduct continued but the complaint profes or a criminal or denying appearance bilities of an before repay instead of economic discipline sional trial court arrangements for bond until the damage. unjustified ment for the release hearing finally provided and a do the fore- What crimes order obtained.11 a motion to simplest terms within In the Clearly, infold? going course of conduct status, could presented the facts dismiss 6-5-301, implicated, first W.S. perjury is where the assistant show criminal conduct participants, against either or both of White, pro- attorney, told the prosecuting multiple additionally available but officer, sign Mayor, to and swear bation 6-5-107, charging, official miscon- W.S. affidavit was a false statement. The false 6-5-202, duct; accessory after W.S. intentionally prepared by probation of- 5—305(b), fact; impe- obstruction or W.S. prosecuting agreement with the 6— ficer justice; W.S. dance of the administration agree- attorney. Then direction and, 6-2-203, imprisonment; false ment, by Mayor. an affidavit was executed offenses, course, the inchoate W.S. 6-1- was next used perjurious This document 6-1-201, aiding conspiracy and W.S. prosecution filing in court to secure accessory abetting as an before from the of an arrest warrant issuance chill, exposure damage If claims conspiratorial fact.12 trial court. Pursuant law, may required by immunity, touch- fur- or affirmation defense on a motion to dismiss avoided, may point question. perjury ing but the ther have been a matter material to story factual (b) felony punishable by side of the is lost from the Perjury other im- is a record. years, prisonment not more than five any excuse for the I do not find conceivable dollars fine of not more than five thousand days Cooney jail thirty-eight ($5,000.00), retention of both. or ignorance, stupidity simple except or malicious W.S. 6-5-301. may justifica- wrongdoing, but there be some (a) public public A servant or officer com- initially taken as a result that tion for the action punishable by a fine of mits a misdemeanor perpetrators perhaps one if not both dollars not more than five thousand may perjurers liars or not both. It are not if, ($5,000.00), pecuni- with intent to obtain a negligence and bad been a case of have even maliciously ary to cause harm to benefit or memory. Within the nature of record another, knowingly: he opinion, required majority we are to assume (i) relating an unauthorized act Commits know, factually, other- the worst and will never duties; his official imagine permitting an wise. I cannot (ii) duty performing a im- Refrains from unchal- record where there is decision on a law; posed upon or him lenged and honor to attacks on his character (iii) relating Violates statute offi- by permitting the interven- unanswered remain cial duties. of absolute of the unwholesome armament tion immunity (b) commits a misdemean- A officer true). (unless Ig- allegations punishable a fine of not more than or Wyoming statute and also nored were both the ($750.00) fifty if he seven hundred dollars Gagnon right to the United States constitutional intentionally perform duty fails to hearing preliminary and bond. prescribed by and within the time manner foregoing Much or even most of the law. response, subject but the use of to answer or W.S. 6-5-107. than a denial of as a defense rather (a) accessory person after the fact A wrongdoing of a factual dis- denies assessment hinder, if, delay prevent or with intent to pute. detection, discovery, apprehension, prosecu- detention, tion, punishment or conviction if, (a) person perjury while un- commits A crime, of a he for the commission another lawfully oath or affirma- der a administered person. assistance to the renders tion, falsely knowingly or makes he testifies (b) accessory certificate, declaration, after the fact commits: affidavit, An deposi- false (i) felony punishable by imprisonment statement, judicial, legislative or tion in a (3) years, three a fine of for not more than proceeding an oath in which administrative duct, responsiveness properly applied, then this is the criminal when to de- serve chill, suggested. the alternative It is not a relationship. fine that flu pneumonia it is and virus combined. Rules for Professional Conduct Attor- inquiry disciplinary Next is code neys at Law. First,

and ethical conduct “answer.” lawyer bring A shall not or defend a course, felony requires conviction of a an proceeding, or assert or controvert an suspension practice automatic therein, issue unless there is a basis for Disciplinary Wyoming law. Code for the frivolous, doing so that is not which in- Bar, implicated Rule State XVI. Also as a good argument cludes a faith for an ex- conduct, required standard of we are tension, modification or reversal of exist- professional address rules of conduct for ing lawyer law. A for the defendant in a lawyer: proceeding, criminal respondent or the Preamble: bility clients, Sfc for the A an officer of the citizen lawyer n A Lawyer’s Responsibilities quality having special Sfc is a }jt representative legal system justice. n responsi pleading, ment of the case be established. The proceeding signature certificate ceration, may nevertheless so defend the proceeding motion, of an as to that could result him that he has read the require or other court doc- constitutes a every in incar- ele- ument; Lawyers play a vital role in the to the best of his knowl- information, belief, preservation society. edge, The fulfillment formed af- understanding requires inquiry, ground- of this role ter reasonable it is well relationship legal lawyers by existing of their to our ed in fact and is warranted system. good argument The Rules of Professional Con- law or a faith for the not more three thousand dollars than W.S. 6-2-203. both, ($3,000.00), (a) felony person guilty conspiracy or if the crime is a A is to com- (1) person acting accessory agrees and the as an is not a mit a crime if he with one or more crime; (1) person committing persons they or or relative of one more them (ii) (1) punishable by impris- A misdemeanor will commit a crime and one or more of months, objective onment for not more than six them does an overt act to effect the fifty agreement. fine of not more than seven hundred both, ($750.00), (b) person dollars or if: A is not liable under this section (A) felony person conspiring The crime is a and the if after he withdraws from the acting accessory conspiracy as an is a relative of the and thwarts its success under cir- crime; person committing manifesting voluntary and com- cumstances (B) plete The crime is misdemeanor and the renunciation of his criminal intention. (c) accessory prosecuted person acting conspiracy as an is not a relative A be crime; into, person committing county agreement or where the was entered (C) any county evidencing principal act is a minor. or in where (iii) conspiracy furthering purpose No violation of the crime is a misde- took person acting accessory place. as an meanor and the person committing is a relative of the W.S. 6-1-303. (a) person knowingly crime. A who aids or abets felony, W.S. 6-5-202. in the commission of a or who coun- n sels, hires, (b) pun- encourages, pro- person a misdemeanor commands or A commits committed, by imprisonment felony ishable for not more than cures a to be is an accesso- (1) year, ry a fine more than one before the fact. one of not both, if, ($1,000.00), (b) accessory An before the fact: thousand dollars force, indicted, (i) impedes May against, informed tried threats or he obstructs or justice principal; a court. and convicted as if he were a administration of indicted, 6-5-305(b). (ii) May against, tried W.S. informed (a) guilty imprisonment person and convicted either before or after and of false knowingly unlawfully principal restrains an- whether or not the offender is in- if he convicted; dicted, substantially against, tried or other so as to interfere with his informed liberty. conviction, (b) (iii) Upon subject imprisonment to the same False is misdemeanor punishment penalties prescribed punishable by imprisonment as are for not more (1) year, punishment principal. than one law for the than one a fine of not more .of ($1,000.00), thousand dollars or both. W.S. 6-1-201.

extension, modification, obtaining, given of ex- counsel and has or reversal been counsel; law; opportunity reasonable to obtain isting interposed and that it is not any improper purpose such as to ha- (c) unrepre- from an not seek to obtain unnecessary delay rass cause or important or to sented accused a waiver of litigation. pretrial rights, right needless increase in the cost of a such as the to preliminary hearing; 3.1, Rule Rules for Professional Conduct (d) timely de- make disclosure Attorneys at for Law. of all or information fense evidence (a)A lawyer knowingly: shall not prosecutor known to the tends to (1) make a statement of mate- false negate guilt of the accused or miti- tribunal; rial fact or law to a offense, and, gates connection with (2) fail to disclose a material fact to sentencing, disclose to the defense and to necessary a tribunal when disclosure unprivileged mitigating the tribunal all assisting to avoid a criminal or fraudu- prosecutor, ex- information known to client; lent act cept prosecutor when the is relieved of (3) fail to disclose to the tribunal responsibility protective this a order controlling juris- legal authority in the tribunal; lawyer diction known to the to be di- (c) prevent exercise reasonable care to rectly position adverse to the investigators, person- law enforcement by opposing client and disclosed nel, persons assisting employees or other counsel; or prosecutor in or associated with the a lawyer offer evidence that making extrajudi- criminal case from an lawyer If a knows to be false. has prosecutor cial statement that the would offered material evidence and comes to making prohibited be under Rule falsity, lawyer its shall know of 3.6. take reasonable remedial measures. 3.8, Rule Rules for Professional Conduct (b) (a) paragraph The duties stated Attorneys at Law. proceed- continue to the conclusion of the In representing the course of a client a ing, apply compliance even if re- lawyer knowingly: shall not quires disclosure of information other- (a) make a false statement of mate- protected by wise Rule 1.6. person; rial fact or law to a third or (c) lawyer may refuse to offer evi- (b) fail to disclose a material fact to lawyer not know to dence that the does person disclosure nec- third when reasonably false but believes is false. essary assisting a criminal avoid or (d) parte proceeding, lawyer In an ex client, fraudulent act unless dis- shall inform the tribunal of all material prohibited by Rule 1.6. closure is lawyer facts known to the which will 4.1, Rule Rules for Professional Conduct the tribunal to make an informed enable Attorneys at Law. decision, or not the facts are whether I would wonder in consideration of the adverse. concept chilling performance honest 3.3, Professional Rule Rules for Conduct professional responsibilities whether White Attorneys at Law. Mayor prefer testing would their con- or prosecutor in a criminal case shall: damage wrongful plat- tended conduct on a (a) prosecuting charge refrain from form, particularly protected by if so sup- prosecutor knows is not or someone else’s financial re- insurance cause; by probable ported sponsibility, permanen- or faced with the (b) prosecution pro- prior interviewing cy an accused or embodied in criminal prior counselling a law enforcement fessional disenfranchisement. answer is, course, respect interviewing that the alternatives are al- officer with accused, certainly really make reasonable efforts to as- most never and seldom ever and, considered, if never antici- sure that accused has been advised considered the. to, right procedure pated parenthet- an actual risk. That and the to be clearly in- emerges pros- wrongful is a conduct which had ical often question —how jury. the civil censed wrong- prosecuted censured for ecutor prosecution? The ful arrest or malicious Blake, 651 P.2d is, course, next never.13 We answer appeal inordinately stretched the belated in this wisdom events and jury problem, afforded to reverse the verdict. The however, if continues we assess realities occurred in the earlier circumstances .that The reader the available alternatives. in this decision litigation resulting court’s surprised should not be Blake, Anger ego 1096.14 651 P.2d criminally nor prosecute did not herself by legal knowledge or assuaged not to be investigator. prosecute the Members Blake, through morality, prosecutor in are, course, lawyers of and this court file investigator, arranged her friend the responsibility insulated from be themselves challenging Rupe by criminal at- charges posture required action appellate as a press tack and release dissertation 8.3, pursuant Reporting Rule entitled acquit- a response jury to a horror of trial Misconduct, particularly Professional as a arrest, charges tal. the criminal After of Profes- important provision the Rules of prelimi- appropriately in were dismissed Attorneys sional Conduct for at Law. filed, nary hearing. The lawsuit was final Recognizing that this court makes initially rights although involving a civil disciplinary proceedings on and decisions 1983), (Section jury proceeding to the went I normally complaints, should not file prosecution jury on malicious where prose- if the only would ask alternatives of perspec- obviously adopted testimonial intend- professional discipline are cution jury plaintiff awarding tive of the anything non-applied justifica- ed but to be $40,000 prosecutor of verdict If justice. of that tions for denial economic $105,000 damage punitive dam- actual court, true, then where does the trial $20,000 $35,000 age damage actual particularly itself the state bar damage against investigator. punitive attorney general grips office of the come court, Blake, P.2d at 1097-98. This responsibilities of Rule 8.3.15 with the appeal attorney gen- on an absolu- belated of the office of the Members tion, vicious, subject to constraints malicious and eral are also absolved provided Ramsey ming then in a near exception v. Board statute effect 13. An is found Responsibility Supreme pardon Court result successful con- automatic after Professional cert, Tennessee, (Tenn.), S.W.2d 116 denied Any criminal sentence confinement. duct of - -, Wyoming would review of the statutes casual suspend- where the district was Wyo- to the state have alerted days, days ed with 135 of that sanction for 180 however, Unfortunately, Rupe, ming. who had fighting with and suspended. The case involved convicted, appropriately answered once been nothing judge, as contempt the trial but clearly that entitled questions asked he was alleged here. as serious since, juror pardon, his citizen- with to sit as ship been restored. had opinion interesting facets the Blake 14. Two First, immediately apparent. was the case action, (a) having knowledge rights lawyer anoth- civil 42 U.S.C. A not a appellate § since had not submission that issue lawyer of the er has committed a violation jury verdict within the been submitted raises a of Professional Conduct that Rules Additionally, opinion, in the obtained. lawyer's question as hones- substantial to that is in made reference evidence "[t]he court dispute lawyer ty, trustworthiness or fitness as * * Blake, 651 P.2d at This appropriate respects, shall inform the other contrary appellate directly rule to our normal authority. professional verdict, where, entry jury of a judge (b) having knowledge lawyer that a participant supporting the successful evidence applicable rules a violation of has committed Blake, prose- be considered. should a substantial conduct that raises friend, investigator, were ex- cutor and her judge’s question for office as to the fitness jury tremely angry adverse ver- because one authority. appropriate shall inform Giv- acquittal and another mistrial. dict ing (c) require does not disclosure This Rule anger, damaged ego and adverse vent protected Rule 1.6. otherwise information reflection, sought professional a victim was 8.3, Conduct Rule Rules Professional blight reputa- assuage anger erase a on her Attorneys at Law. Unfortunately, Thomas tion. Rupe victim Wyo- juries. served on the who had requirements prosecutorial tinction as the state’s attor- of the Rules of Professional Attorneys at Conduct for Law members neys. misconduct Control of the unusual Wyoming Bar.16 State promotes image justifica- and the both Id. profession. at 976. tion for the entire morality

A standard of is assumed for (prosecutor) insulation of the official [Cjlaims of mental and emotional dis- liability injury from constitutional tress, proven, support if can an award of constitutionally cannot be constrained with- * * * compensatory damages. More- dichotomy. versus conduct function over, deterring the societal interest by Ryland recognition A clear is afforded punishing violators constitutional (5th Cir.1983), Shapiro, 708 F.2d 967 supports punitive an award allegations where involved actual damages even the absence of falsification of death certificate and cover * * * Finally, injury. an award of nom- up “Characterizing of a murder. these ac- damages may support inal an award of traditionally akin those under- tions as attorney’s under section 1988. (which fees taken officers of the court would immunity) entitle them to assert absolute Id. at 976. mockery judicial sys- make a would immunity The federal court creation of to Id. tem.” at 975. I would likewise reflect exception carve out an to Section 1983 lia- conspiracy suborning perjury that and to bility for violation of an indi- probation a war- for issuance of revocation rights, although very vidual’s civil new mockery judb a of the rant is no less both ciary lawyers adjudicatory history, dis- time in now has a and the who serve with justification attempting explanation is that the blase Before an of this 16. What this means status, special responsibility it to there are is wise note for denial of economic cannot personal attorney limits to it. First of all it is not the prosecuting sustained the un- immunity King, fact absolute- of the who is in explanation provided why the alternatives less is ly the reach the courts for immune from of prosecution disciplinary criminal or action of priv- all tortious conduct. Rather the Admitting pleading pursued. were not ilege judge of the extends to acts done in prosecutor may perjury pro- have suborned the if, street, judicial capacity. So on the he heavy responsibilities vides a burden of other to nose, punches a the or runs him citizen in membership the the of office automobile, in his if he has another down general performance responsi- of correlative maliciously prosecuted, keeps leaky or if he a bility employee as an of the law enforcement neighbor, judge, dam that floods his un- lawyer and as a within each executive branch King, damages. will be liable Sec- like ond, for participant’s disciplinary responsibilities as es- acting judgelike capaci- even if he is in a adopted by tablished the rule this tribunal. arise, ty, jurisdiction may the matter de- of nothing just quasi-judicial There is about com- be, pending category judge on what he to legal directly par- mitting breaches of ethics or immunity. dilute his perjury. ticipating in the commission of A mo- Finally, while it is little solace to the indi- provide an tion to dismiss is ill-mannered to injured thereby, judge open vidual escape responsibilities from all for contended possible prosecution and criminal liable malfeasance, malice or criminal conduct. impeachment fide or removal for his mala or defining responsibility In this absolution from corrupt acts. quasi-judicial, as we are faced for misconduct However, ordinarily complete it is a answer strongly of Ameri- with a stated characterization complaint charging tortious conduct to a by Gray was a Canadian: can law who answer, judge judge "I for him to am relating judges at the root of The law complained the act of was done while I acted many problems afflicting the law of my jurisdiction.” judge proper as a within liability. judge truly has officer’s tort The Suggested sweeping rationale of this immuni- law, pampered child of the for he is been ty Jennings’ Edward are numerous. Prof. among privileged those few who are allowed suggests leading article no less than nine rea- only stupidly, their duties not to fulfill Yet, sons that have combined to establish it. maliciously, corrupt- negligently wilfully, but truly satisfactory explanations none are as dishonestly, yet escape liability ly just plain why person alleging injury by corrupt act damaged by cynic to those his conduct. compensation barred from without should be any just might forgiven pointing for out who the merits of the case. consideration on However, give (footnotes law. it would be to Gray, supra, made this 47 Cal.L.Rev. at 309-10 suggest judges citing Jennings, Liability than their due to much less Tort omitted self-protection explains Officers, clue which is the Administrative Minn.L.Rev. 263 (1937)). theory judicial immunity. judge complex perimeter. may In duct of which the become definitional outer proceeding it is defined as core aware. concept, ** * prosecution application requiring for in- Disciplinary measures particularized responsibility. the advocate’s lawyer’s reporting clude misconduct obviously imple- language The broad used appropriate disciplinary body. similarly justify judi-

mented to continue to wonder, looking if at the One would also immunity necessity to con- cial belies the applicant next examination of the seated fine characterize the advocate where during the cause admission examination is functioning. loses his mantle collateral prac- opportunity for a lifetime denial of cases, way get words law, Application Corrigan, tice Ohio logic. reasoning and what St.3d 546 N.E.2d justified immorality principle proper responsibility relative would be the insulation beneficial wrongful conduct indefensible immunity in Demery of absolute is stated F.2d recited 1139? Demery, (9th Kupperman, F.2d through My justification mucking Cir.1984), denied 469 U.S. cert. alleged governmental morass of the law of (1985): L.Ed.2d judicial self-justifica- agent misconduct and testimony is inducing fact that false when tion defined first Section 1983 is not relevant wrongful and indefensible Wyoming secondly for the applied question whether at- Wyoming applied Wy- when Constitution Underlying doctrine of abso- taches. oming boundary is to some crite- establish recognition is a lute Analysis reso- requires ria. two different public policies advancement broader lawyer lutions since a character advo- requires concededly sometimes tor- by the courts cate conduct sanitized federal conduct, reprehen- no how tious matter acceptable in the necessarily cannot sible, unremedied, go at least means court, this constitu- judiciary state where damages. for of civil action a tionally, primary responsibility for has the accept my unwillingness In this standard Wy- application preservation and of the the lawyers, one Wyoming of for is conduct Constitution, supervision Wy- oming of the of when the author the called to wonder re- oming practice general of law and the the opinion last read the statutes of State justice delivery system sponsibility the California, relating of the federal code government of the three branches within committed, even which can Const, crimes 2, 1, art. Distri- pursuant Wyo. § officials, and code of ethics public stan- Consequently, of bution Powers. lawyers. judges which relate both advocacy lawyers of behavior for dards D(2) of Judicial Conduct See ABA Code § and, responsibility the direct this is 1, 1989), (Discussion May Draft Revisions such, only to identically applicable not as which states: private gov- lawyers practice, in but also a having knowledge lawyer A judge advocacy in in lawyers behalf ernmental Rules a of the committed violation has general, prosecut- in Wyoming the state * * * should take Conduct Professional state ing attorneys representation in of the and, if the violation action appropriate and the defense proceedings for criminal as to the question a substantial raises agents are state in criminal cases who bar honesty, or fit- trustworthiness lawyer’s public under the participation virtue of respects, lawyer a shall ness as other program. defender authority. appropriate inform MAJORITY IS WRONG WHY THE VI. comparable version found in See also Conduct, B(3) Wyoming’s Code Judicial wrong first its majority I find the (1979): Commentary fed- to Section 1983 application this case wrong expressly and more ap- initiate eral standards judge should take or advocacy ac- conduct standards of disciplinary a about propriate measures Wyoming ceptable Constitution. lawyer unprofessional con- within judge or Finally, ignored preparation, I error in execution and assess itation of responsibility acknowledgement government direct state constitu- of a false preservation. its tion and governmental another official. document analysis, repeat factual we need I the external line even for establish case is scenario with which this elucidated point at a than when the Section 1983 later by a motion dismiss status. prosecutor directs and solicits execu and perjurious tion of a false document knowingly perjurious 1. A statement pro and the initiation arrest by parole form offi- prepared official before ceedings has ever commenced. Within cer. continuum, even under Section perjured The know- 2. statement was conduct of White initi ingly prepared by parole officer at prepara ation and direction for document county attorney. direction the assistant immunized tion to secure arrest prepared within document was when based on facts included were jurisdiction parole to ac- officer It knowingly perjurious. false is not complish arrest and confinement of even believed that the federal courts will parole person on who was not within the accept that character of felonious conduct particu- jurisdictional responsibility proceeding official a core to be parole lar officer. prosecuting advocate of a parole perjured 4. The officer sent the Hanrahan, Hampton criminal case. attorney prosecuting document to the (7th Cir.1979), 600 F.2d 600 rev’d on other purpose filing prosecuting attorney’s grounds 446 U.S. immediate an order to secure an arrest reh’g 448 U.S. L.Ed.2d denied subsequent probation. revocation 1176, reh’g 65 L.Ed.2d denied prosecuting knowingly 5. The 65 L.Ed.2d 1177 to, perjured filed the document order Patterson, (1980); Joseph F.2d 549 did, for the secure warrant arrest (6th Cir.1986), cert. denied damaged individual. tak- individual was arrested and I The second difference take with the jail Cody. the en to immunity majority Wy- ever is to extend prosecuting attorney ad- was oming Wyoming the where violation of that the should released vised individual Constitution is considered for conduct proceeding improper. since which is either criminal or constitutes a by gov- legal serious violation of ethics appearance hearing 8. Without be- words, I ernmental official. In other will any judiciary, fore member of the the indi- suborning perjury, not accept immunizing, days jail thirty-eight vidual was held in documents, blackmail, alteration etc. appearance release by before trial prepara- even if the context of within action. presentation tion a criteria of the accurate in to If these facts are addition ' I regard, In proceeding. core would by parole clear felonies committed both the apply the same rule for defense counsel prosecuting attorney plus and the officer defenses, representing the state in criminal serious ethical misconduct various kinds attorneys representing the state’s state by prosecutor, there should be no doubt litigation, prosecuting any general protected constitutional of a of a violation representing the state in criminal attorney Wyoming right under Constitution proceedings. Cooney. I do guaranteed not believe note, however, that this cloak of We if federal courts generally that even immunity attorney’s per- limited to countenance commission felonies functions, regular advocacy formance prosecutors, United States In- Omni cf. prosecu- immunity like the afforded (D.Md.1986), F.Supp. 1414 Corp., 634 tern. tors, not extend to intentional mis- immunity does the outer limits of the umbrella accomplished prosecutor’s would be outside extended to the solic- conduct filing. prose- This was not a attorney’s function as an officer direct scope of the Imbler, prosecuting 424 cution where the had state. advocate for the here, Consequently, 994; responsibility. sole at Tower v. County only served as an 914, 923, that Park official Glover, pro- assistant in a (1984) (state adviser and volunteer 81 L.Ed.2d ceeding initiated a state office and offi- im- are not afforded absolute defenders necessarily cial for which he did not have misconduct vir- munity for intentional responsibility. I do not take direct alleged conspiratorial action which tue of accept prosecuting that the at- contention rights). federal deprives their clients of torney telling parole has by the common envisioned prepare, sign and swear to a officer law, Supreme by the and discussed which, parole document within the false Court, only to those activities attaches responsibility, officer’s will serve obtain ad- normal duties as an within counsel’s par- the incarceration of someone who both his or her client. When vocate for subject ticipants know is not at fault or attorney goes beyond those boundaries factually probation revocation. an act of intentional miscon- and commits duct, protections of absolute immuni- reasons, Consequently, three the ma- Tower, longer apply. 467 U.S. at ty no substantively in error. First jority is 104 S.Ct. at 2825. See Williams extending beyond proceedings; core Imbler (8th 1203, 1208-10 Cir. Hartje, 827 F.2d by extending the outer reaches of second (The 1987) advocacy pre- function entails Wyoming pro- Imbler to the constitutional activity paratory and other outside tection; extending to a and third Imbler the role of undertaken “within courtroom probation officer revocation document line drawing between advocate.” directly re- was not where activities, absolutely immune and other action. sponsible providing the initial not wheth- important consideration is something if fair rationalize that It is could be done er the act was one which before, if it ever occurred like this whether an act only by an advocate but here, it not reoccur really happen did will closely related to the role of the advo- opinion. In 1989 and after this cate.) Wyoming is lawyer disciplinary process of Murphy, 849 F.2d at 1105. attenuated to re- organizationally more adopt argue I that this court should profession spond to the misconduct litany of excused misconduct the Imbler poten- for the recognition has occurred ethical miscon- criminal or serious where an attor- responsibility when tial criminal exists, confined except to the most duct preparation of false ney participates apply federal criteria to required Neilson, extent Seventh Ju- documents. State and then federal statute District, County, State dicial Natrona this Consequently, 1983 claim. Section bring justice Wyoming. This case not extending the assumed in error in court is Cooney and Lora nor even equity or to Tom responsibility immunity to a state Imbler did occur and properly determine what under the state constitution. exist, message responsibility did but what if indelibly communicated that should be why the ma- yet is a third reason There responsibility is denied for of- liability civil particularized these is in error within jority nature, egregious of an ficial misconduct proba- statutory provision for The facts. pro- punishment may and should be worse prosecuting a direct tion revocation is not vided. Admittedly, this attorney responsibility. pro- revocation court has created RE- RIGHT FOR ALTERNATIVE VII. pros- where the independent of statute cess OFFICIAL WHEN PUBLIC GRESS However, player. a direct ecutor becomes IN VIOLATION DAMAGE CAUSES case, proceeding cho- the revocation in this THE STATE CONSTITUTION OF such, and, have statutory could sen was why this court is reason There is a basic any involvement of processed without been by affirming the dismissal in error attorney through parole prosecuting 1318 sustaining immunity by that cancerous the motion to dismiss followed

case here, as, expansion example pros- for Cooney to file leave reserved to an without pseudo-judicial. function as The ecutorial complaint. Admittedly, Cooney amended for proper justification foundational non-li- alleged indirectly facts which directs only agents arises ability government from implicating to a course of conduct attention responsibili- the discretional nature rights guaranteed violation of performed. judge’s judicial deci- ties perceive Wyoming Constitution. I would 547, sion, Ray, Pierson 87 386 U.S. S.Ct. arguable that with violations of United (1967), Pulliam v. 1213, 18 L.Ed.2d 288 cf. consequent disposi- States Constitution and Allen, 1970, 466 U.S. 80 claim a motion tion of the Section 1983 (1984); parole L.Ed.2d 565 board’s re- dismiss, Cooney have been re- should State, decision, Hurst P.2d lease right protest a further to amend served Grimm, 1227; P.2d (Wyo.1985), cf. of his state constitutional inter- violations decision, president’s welfare national not could have been substantive- ests which Fitzgerald, 451 U.S. Nixon claims ly extinguished the state tort act (1982); and the L.Ed.2d terms, which, in its not addressed to a is activities, Tenney v. legislative legislator’s rights violation. constitutional Brandhove, magnetic The near attraction reh’g denied L.Ed. 342 U.S. judiciary, including categorically federal (1951); Clear Lake L.Ed. 637 Supreme States Court sta- United Salazar, Authority v. City Water tism,17 per- here rights over individual properly (Tex.App.1989), S.W.2d 347 occupational immunity. sonified litigative attack protected because only This is not in contravention of Chief responsibilities the nature of the decisional Marshall’s directive in Mar- Justice John has not because officer holder been Madison, 1 bury v. Cranch given a stature above the constitution as disregard L.Ed. 60 society. the basic law precedent, appar- English law but also Exhaustive scholastic examination of the history even as ignorance ent world expansion institutional of the individualized saga recently provided by the more responsibility privilege to harm without post- government emergence totalitarian government by general im within I disintegration World War munities, absolute, qualified and has at unjustified and Factually old order. comprehensive analysis. tracted scholastic except as unsupported, precedentially The frustration disdain of writers growth, occupational immu- accelerating adversarial effect of on indi injury responsibility de- nity from personified vidual titles. expansive primarily by its fines Representative writings spe not otherwise justification its intrinsic growth cifically cited in include this dissent Bar comparable systematology .iexistence. rett, Police Practices and Law—From government human cancer is within Charge, Arrest to Release Calif.L. unnoticeable. (1962); Beermann, Government Rev. Takings Torts and the officer Clause: Governmental Official Sovereign faulty on a and fallacious Federalism State Immuni privilege rests Burke & Bur only recently (1988); ty, 68 B.U.L.Rev. conceptual justification as 277 ton, Defining Municipal gov- the Contours of like thistles the American growing on )2 1983: Liability Under U.S.C. Monell judicial landscape. Error § ernmental Harris, City v. Through Canton by judicial creation of 18 initiated of 17. The 668, Gibbons, (1986), immunity’s of S.Ct. delineation relation sta- 106 J., Fano, State, dissenting. original v. Meachum v. 427 me. See White See also tism is not 2532, 2541, J., (Wyo.1989), Urbigkit, 96 49 dissent U.S. 451, S.Ct. L.Ed.2d P.2d 1313 784 references, reh’g journal denied ing. see 429 U.S. 97 50 In addition law Stevens, J., O’Lone, (3rd (1976), dissenting. 155 Man F.2d 839 Cir. L.Ed.2d Davidson v. 752 state; 1984), granted is not creature of the state is cert. 471 U.S. (1985), man. 474 U.S. creature of L.Ed.2d 692 86 aff’d

1319 nity Under (1989): Eisenberg 30 747 § 511 & Mercer L.Rev. Stetson L.Rev. Limiting 1983 Reality the Section (1979); Note, The Constitutional Schwab, of Pape, Action in Litigation, Tort the Wake Monroe 72 L.Rev. 82 Cornell 641 of Unhappy History The Gressman, (1969); (1987); De Harv.L.Rev. 1486 and Recent An In Rights Legislation, Lynch Cannatella: Civil velopment, 50 Mich.L.Rev. of Municipalities Im Suing Application Qualified consistent Hundt, (1952); 1323 of munity, Directly Under Fourteenth Amend 62 Tulane L.Rev. 820 ment, (1975); Jaron, 70 770 N.W.U.L.Rev. supra, Gressman, couple A of lines from Liability The Threat Personal Under of (quoting 50 Mich.L.Rev. at 1358 To Secure Rights Act: Does it In Federal Civil Rights (1947)), These 149-173 as a distinc- with the State and terfere Performance of of Marbury, may from tion the idealism Government?, Local (1981); 1 13 Urb.Law. description: charismatic in Public Liability Enti Kouba, Kates & of sense, infringements one actual “[I]n ties 1983 the Civil Under Section of rights by public private per- of civil Act, Rights (1972); 45 131 So.Cal.L.Rev. only symptoms. They reflect sons are Municipal 1983 Liabili Mead, U.S.C. 1$ § order, imperfections of our social ty: Becomes a Distort The Monell Sketch ignorance and moral weaknesses Picture, ed (1987); 65 N.C.L.Rev. people.” some of our Rights Litigation Civil Schnapper, After re- quantum After assessment of this Monell, 79 Colum.L.Rev. 213 (1979); Sha search, analysis composition, one has Pape, Constitutional Tort: Monroe po, why cause to wonder where we are and we Beyond, Frontiers 60 N.W.U.L. got privilege injure immunity here with — Color (1965); Zagrans, “Under Rev. responsibility as Jus- from related to what A What Law: Reconstructed Model of’ century ago Miller just tice said over a Liability, Section 1983 Va.L.Rev. 499 Lee, United States v. 16 Otto Rights. Malley v. Comment, Civil (1985); 196, 220, (1882): L.Ed. 171 Briggs: Application Objec to the Harlow he country high No man in this so tive Reasonableness Test Section 1983 No the law is above the law. officer of Officers, Police Liability for 29 Ariz.L. impuni- set at defiance with that law (1987); Comment, Oregon’s Dis Rev. 333 All ty. government, the officers of the Interpretation cretionary Discretion lowest, highest are crea- ary Immunity, 22 Willamette L.Rev. 147 law, obey tures of and are bound Rights: Civil Discard (1986); Comment, it. Municipal ing Section Immunity— Department Enough? period Is That Monell v. journal legal Most recent law Services, Immuniz Gildin, Social scholarship ical include Qualified ing Constitu Intentional Violations of Note, (1978); U.Fla.L.Rev. 979 Through Legisla Rights Lose tional Judicial Immunity Will —Public Officials Fitzger The Extension Harlow v. Qualified Immunity the Constitu tion: Where Actions, ald to Section 1983 Rights Clearly tional Were Established at Emory L.J. on Ab Update Not Manak, the Violation But For (1989); Time of Immunity, Regulation solute/Good Faith Violation a Statute or Un The Regulation (1989); Mahshigi less the Cre Statute Prosecutor Schwartz & Itself In the Government Must Right. v. Scher 1990’sthe an, ates the Protected —Davis Workplaces: (US.1984), Person in its a Reasonable (1984- er 34 Drake L.Rev. 873 Immunity Discretionary Function Department Monell v. Social 85); Note, Trimmed, Supreme Adoption Must be Shield & Lee Services: Court 46 Wash. Revisiting Exceptions, Tribe, (1989); Lower Court L.Rev. 359 Utah Law, Municipal (1989); Rule Liabil (1979); Note, N.Y.U.L.Rev. 726 L.Rev. 251 Creighton Anderson v. ity Meaning Comment, Under Section 1983: Custom”, Qualified Immunity, 50 Ohio St.L.J. “Policy or 79 Colum.L.Rev. Qualified Immunity Comment, (1979); Note, From Monroe to Monell: (1989); in Section Municipal Law Eliminating Absolute Immu Enforcement Officials Cases, 1983 Excessive Force powerful figure jus- most in the criminal U.Cinn.L. * * * (1989); Note, The Yonkers Case: system. Rev. 243 tice Separation Powers as a Yardstick probably The second theme is most Determining Immunity, XVII Official significant long-range re- terms (1989) (see, however, Fordham Urb.L.J. form. Restraints on mis- — States, -, Spallone v. United U.S. meaningless conduct are either or non- dem Relatively judicial few or con- existent. guessed totally onstrating that the author penalize stitutional sanctions exist 1983: Absolute Im Note, Section wrong); misconduct; deter the available sanctions Testimony, munity For Pretrial Police sparingly used and even when used and (1988); XVI Fordham Urb.L.J. proved Misconduct is have effective. September Review 1987-Au D.C. Circuit passivity and commonly judicial met with 1988, 57 Geo.Wash.L.Rev. 1342 gust hypocrisy. bar association text, Gershman, su- B. The authoritative Id. at vii-ix. pra, should not be ignored. In introduc- Considering comprehensive history this tion, states: Gershman scholarly authority, it and exhaustive is about the use and abuse This book recognize require- time that state courts influential power by one of the most fidelity constitution in ment of to the state figures governmental in the American validity principal responsibility to assure system. Although not a member of the guarantees to the state’s citizens. Cur- branches, offi- legislative or this sory supplication waning protection to the lawmaking adju- cial broad exercises afforded States Constitution United Although technically a powers. dicative through highest current decisions branch, of the executive this of- member system longer court of the federal can no operates autonomously and inde- ficial fealty meet the demanded the oath of usually pendently and is accountable supreme office of what the state public. to the Whether rural or justices owe to the state constitution. Con- urban, federal, ap- elected or local or sequently, addressing per- when suborned glamorized by the pointed, this official is jury incarcerate an innocent victim a media and diabolized his foes. This official, escape personal I cannot figure public prosecutor, and he Wyoming responsibility to the State Consti- power has the to make decisions that by temporizing tution or surrender denial destroy people’s ca- control and even by unthoughtful adaptation of whatever reers, reputations, Any com- lives. temporary applied by mores prehensive systematic understanding Supreme to federal United States Court justice system of the criminal must take legislation. prose- account of the central role of the persuasion by unques- I am led this cutor. ing than that of tor is law fascinating that the ciety and More than time study professor, n prosecutor, required prosecutor’s justice. # to serve two masters —so- other I frustrating. any prosecutorial process is n defense have * * * official, other task is more exact- ^[*] always attorney, public officer. As a sfc prosecu- believed long- jfc Named struction of the developed by tutional L.Ed.2d 619 cotics, remedy tionable bedrock government and in fact deny Agents rights. cannot, government judiciary (1971), by Chief Justice original philosophy initially principle Federal Bureau Nar- act Bivens v. Six Unknown legislature contrarily violation of consti- foundational con- right of constitutional Marshall, in order to need provide not, Supreme provided a emerge from United States Court major themes Two First, remedy for violations inescapably clear direct constitutional it becomes book. ill, government guar- prosecutor, good is the of constitutional that the protection Con- antees afforded United States for the mutual of the state’s guarantees. stitution. constitutional application protec- I find need for the of W.S. What this means is no that for the and, fact, through 1-31-130, rights, depra- in tion of state if 1-31-101 no constitutional denigration employees vation or by exclusion whatever such an act from state occurs, court, the state to discern in Bivens cause of action may not do that this oath, should be available under the constitutional provide right exercise of its a must imperatives our of state constitution. Im- for our protection to citizens from constitu- cannot, munity itself, as a non-constitu- depravation by government or its tional function, amend rights tional out of societal only employees.18 Consequently, we can protection guarantees for which are responsibility by providing that meet provided within state constitution. right for state Bivens redress of constitu- This is true no less nor more than a like no remedy tional violation.19 Section 1983 which was developed thesis the federal is, nadir, if today, in its not obsolescence judiciary by adaptation process of a and impotency. and Call then reoccurs for right justiciability para- in Bivens. To judiciary recognize empirical state phrase ogle profession- the oracle of the required responsibility within the state con- immunities, al if it would be monstrous for non-legislative stitution. The answer of government protect the federal not to citi- system of an the federal Bivens is obvious employ- zens from denudation by federal accord real meaning answer to to the state ees, it is no less court to monstrous guarantees imperatives. constitutional and willingness reject its oath of office our Any ignored by constitution which can be provide right similar within the state legislative inaction or of im- denial rights denudation constitutional plementing processes is no constitution by employees of the state. prostitute the action or inaction will government demean the The clarion itself. look, Cooney then We should was question why apply so we often need to unconstitutionally by conspira- incarcerated provide per- Fed to can more Uncle perjury employees, torial where suasively justiciably be answered the contours of state cause of Bivens activity ingenuity. our own The thesis adequately action could be most illuminat- Bivens, presented implemented. citizen’s rights that within ed and In a model state constitution not without sub- was created announcement that feder- stance, right of action was leg- even if not federal al defined for enforced islation, federal precedent by damage was recoverable from previous has realistic agent guarantees violation of constitutional remedy the Bivens the state use of (Fourth case). rights rights Amendment that independent court to enforce the governmental posture In rights proceed- denial the federal civil action and existed, opinion right to enforce no ing. concepts, although yet not These said: prefer- predominated have because of remedies, past can posture respondents’

ential federal We think thesis [that well-being cultivated to further the redress found now be could recognition upon in a an un our citizens realistic under state tort rests law] ° system duly function the federal restrictive view of the Fourth the state’s recognizing state court discussion of the innate inaction of most extended act, majority al- about the state tort claims systems. states and New Some such as Hawaii abjure though completely agreement, I provide Jersey a sim- reached for answer to subject professing right that a to correct by recognition general invalidi- ilar result independent violations constitutional exists ty preclusionary a total immunities as statutory process relating primari- any confined justice device. states move for- denial Other injury by negligent recovery ly caused legislatively by general realistic ward more misconduct. however, Generally, the action claims act. tort remedy both and attor- was federal where develop- review demonstrates that Historical ney’s fees could obtained. delayed remedies both ment of state availability remedy the federal Section 1983 1322 The adjudicatory rent direction. Bivens protection unrea

Amendment’s not and seizures federal tort was considered but sonable searches constitutional consistently agents, applied City that has been Chi Corp. view in Melbourne 595, 914, 920, rejected by Respondents this Court. Ill.App.3d Ill.Dec. cago, 76 31 relationship to treat the between 1291, (1979) by analysis seek 1297 394 N.E.2d agent and a federal unconstitu citizen “to a so-called ‘constitutional constitute authority no tionally exercising his as tort,’ constitute a actions must defendant’s relationship from the between different of Mel knowing or malicious violation doing, they In so private two citizens. clearly constitutional bourne’s established granted, ignore power, the fact that once rights.” allege failure malicious The magic gift when disappear like does effectua action ordinance denied or invalid agent acting— wrongfully An it is used. remedy. outline for state tion of the unconstitutionally the name albeit remedy —in right in use of a constitutional possesses greater the United States far provided in v. Bd. state court was Kewin than an individual tres capacity harm Allen Ed. Northern Park Melvindale authority than exercising no other passer 472, Schools, Mich.App. 65 237 Public States, 255 his own. Cf. Amos v. United Homes, (1975)and M N.W.2d 514 T & Inc. 266, 267-68, 313, 65 S.Ct. U.S. 317 [41 497, 162 Tp., N.J.Super. 393 v. Mansfield (1921); L.Ed. United States Clas 654] (1978), Jersey, and in New 613 A.2d 1031, 299, sic, 326 313 U.S. S.Ct. [61 571, State, N.J.Super. 131 330 Strauss v. 1043, (1941). According 85 L.Ed. 1368] (1974) Spann, A.2d and Cashen v. 125 646 clear, ly, our make the Fourth cases (1973), 386, 311 192 cert. N.J.Super. A.2d as a limitation operates Amendment 251 N.J. 321 A.2d granted 65 power federal re upon the exercise of part and re part, in in modified aff'd gardless of the State whose whether A.2d cert. manded 66 N.J. power is exercised would jurisdiction that 46 L.Ed.2d denied 423 U.S. if penalize the identical act prohibit (1975). private guar citizen. It engaged by a mandatory maternal teacher school antees to citizens of United States Kewin, complaint leave addressed free unrea right the absolute to be from 519-20, the court at where N.W.2d seizures carried out sonable searches and damage award statement sustained authority. And by virtue of federal challenge to reversal: denying the protected rights have federally “where judg- reject challenges these We invaded, it has been rule been entirely admit that are not ment but we beginning courts will be alert to requiring pay the Board satisfied grant as to adjust their remedies so however, would, damages. We less Hood, necessary relief.” Bell v. compensa- denying plaintiff satisfied 773, 777, U.S., L.Ed. at 684 S.Ct. [66 violated; clearly rights Her were tion. omitted); (1946) (footnote see Bem ] result, as a she economic loss suffered States, 289 Bag Bros. v. United Co. in the court be- losses well established 454, 457, L.Ed. U.S. [53 though the constitutional J.); low. Even (1933) (Cardozo, The Western 1011] impression, may be one of first claim Maid, 257 U.S. [42 S.Ct. (Holmes, J.). compensation award where courts should 66 L.Ed. 299] infringement personal in- there is an 391-92, Bivens, S.Ct. at liberty. Cf, Bivens Six terests Named Federal Agents Unknown equivalent op- find reciprocity, I now Narcotics, Bureau of responsibility adjustment portunity judiciary par- remedies the state Inc., Homes, M in T & foolhardy ticularly so since one would similarly applied the Bivens con- A.2d 613 only to the expectations remedial confine remedy.” That cept provide “another rights act as of the federal civil fortuities analysis that pressure in cur- case also has value under the now severest disagreement divergent constitutional cannot be denied cial reflected in the in passage legislation, of state albeit that views. upon the of the case founded existence perceive majority I do not federally guaranteed constitutional inter- thoughtfully sovereign immunity extends similarly recognized It here est. should be prosecutorial immunity or even to actions that state tort claim acts do not amend the public of the official that violates the con deny denigrate constitution to nor state stitution a state under which the oath of guarantees into our

basic inculcated socie- by jurist by office is taken not but by ty’s basic structure the constitutional the office holder. The contours of this declaration.20 persuasion consideration and its present application requires analysis of the Immunity cases of whatever brand of case, Department recent Pub Smith grow weed from a common seed fertilized Health, 428 Mich. lic 410 N.W.2d 749 rights injured denial of to the granted cert. Mi sub nom. Will v. depravation injury by agents committed or Police, chigan Department State of the state.21 The thesis of the basic U.S. 99 L.Ed.2d 696 intrinsic constitutional tort is that inaction (1988), judgment sub nom. v.Will by legislature deny or executive cannot aff'd — Police, Michigan Department State judicial responsibility under the state con- -, U.S. 105 L.Ed.2d 45 obey support, stitution to and defend the Const, Michigan Supreme What the Court constitution, Wyo. art. as § Const, distinguished did must be from what was Wyo. the oath of office. art. 8§ in affirming included United States Su applied permit cannot constitutional preme Leaving Court decision. aside the extinguishment by legislative inaction — Police, Michigan Dept. v.Will State rights granted where the as in themselves Const, -, 1, 6, Wyo. are at stake. As art. § person the state as a issue of under Law, person Due Process of states: “No Court, Michigan Supreme Section life, deprived liberty property shall be decision, very splintered in a in resolved process without due of law.” That due Const, opinion: memorandum statement within the process right Wyo. art. and the open shall be 5) state, 8 that courts alleged it is that the Where § “[a]ll every person injury person, done to policy, virtue of custom or has violat- reputation property justice shall have right Michigan ed a conferred sale, delay,” denial or Constitution, administered without governmental immunity is heritage judiciary by of the are the societal in a state court action. available for a District of Columbia ion vacated which our of office is taken. case is developed Smith v. (D.C.App.1981)(reh’g granted and interesting 1/5/82) are defined and our oath A analysis adaptation Whitehead, similar remedy. but analysis question- Bivens opin- A.2d was ognized state 6) * ** n A claim for arising Michigan We affirm the Court of ^[*] appropriate from violation Constitution # damages against cases. n n the state Appeals rec- n summary the denial of precedent by virtue of its succeed- affirmance of able judgment plaintiffs Michigan ing history panel trial court affirm- claims, subsequent equally and direct ance and en banc divid- constitutional Claims, remand, review, issue on to determine posture ed but the Bivens Court of Michigan subject judi- a violation of the Con- not the of the extensive whether requirement provide presented consequent inquiry is concept here has similarities 20. governmental-sover- protection. different from the structure to but is White, eign immunity P.2d addressed depravation that the state needs an effec- of a It could be said 1313. White did not consider Wyoming constitutionally right, contrarily be the protected but tive weed killer which should by Wyoming judi- extinguishment any remedy Constitution as enforced addressed the Here, right ciary. injury. is constitutional and governmental require citation by virtue of a no constitution stitution alleged; policy custom or has been all other fundamental law which occurred; and, such a violation whether laws conform. All state offi- must occurred, executive, if it whether it is one for which cers, legislative, judicial, remedy proper. damage 11, 1, required Const. art. § same support to swear or affirm to Smith, majority N.W.2d at 751. document. govern- four of the court determined that part

judgment on the issue of with the constitutional violation of preme Court. Justice mental of garner majority er stridency judgment on mental otherwise constitutional act immune from mental ries. edy, Court is whether stitutional tort the and Assuming The affirming Michigan n a the The Court Claims found majority defendant moved immunity inapplicable immunity dissenting of the lead justice question appropriate n the motion for liability Constitution. did not of * of the court concurring plaintiff ¡H shields basis * concurrence, sovereign which confronts opinion *. We Boyle, concurring in part, the state which apply non-immunity for n : plaintiffs inju- proves for which did stated: damage Michigan agree lost a battle to violations maintaining Despite the state n that writ- summary summary the con- govern- state is govern- an un- * * rem- ^[*] Su- *. Suits state court action for force macy constitutional Sovereign immunity, cy, lose its common-law ply sovereign immunity to violations the state of our state constitution. over the curious doctrine of immunity ty for its gation, (1976). This eign immunity Taylor, 398 Mich. Neither America, ^[*] Court of the state constitution would against governments and eclipse should, however, Even absent immunize the years, alleged abrogated does ^[*] vitality subject sovereign immunity in acts of the state. The as a matter in Pittman v. we would decline common-law Sfc vitality see, unconstitutional when faced with 41, 247 sovereign such common-law sover- damages. generally, state ^[*] great of a claim of of public general Harv.L.R. N.W.2d from ^[*] sovereign immunity criticism officers: City liabili- Jaffe, abro- acts. poli- per- The Sfc pri- un- ap- by of alleged its acts liability damages involving alleged In a case unconsti We

which violate our state constitution. government, tutional nei act state sov- would hold neither common-law statutory immunity sovereign ther nor ereign immunity governmental nor * * * arises liability. injury should The recovery. bars bar pro constitutionally from violation govern- form our constitutional right right by government, tected ment, peo- sovereign power is in the engendered by law cre "the basic ple, is made for the Constitution “[a] govern ated control that and seeks to people people.” Michigan Dellinger, reme ment.” State, Secretary Farm Bureau Of sword, 85 as a 387, 391, (1967) dies: The constitution N.W.2d 797 Mich. (1972). prima Harv.L.R. Cooley, Limita- (quoting Constitutional eclipse the must ed.], 81). Michigan cy of the constitution p. tions Con- [6th con power immunity to countenance plenary is a limitation on the stitution by the state without power government, provisions stitutional violations its * ** paramount. liability[22] It is so as to are basic concomitant recognize in dissent. Justice It is curious fact to that in the Justice Brennan Stevens, dissent, additionally Will, discerned: majority opinion no cognizance long Legal was taken of the decision in flourish after doctrines often enjoyed perished. the state no common- state court that their d’etre has The doctrine raison sovereign immunity of its rests on fictional law for violation own constitu- "King wrong.” premise do subject recognized that the can no decision tion. This was Smith, (footnotes al Supreme N.W.2d at 793-95 remedies. The Court of Hawaii omitted). degree, has said no and to a other cases provide found to persuasion. a similar It is

Obviously, principal effort of civil neither novel nor right guarantee recog- new this era for protec- and constitutional tion has not been directed to state pro- constitu- nition be afforded that state courts However, implementation. tional at no greater protection vide for constitutional time since the In Slaughter-House re rights of citizens than expected can be or is Cases, 16 Wall 83 U.S. 21 L.Ed. 394 provided by authority. the federal The call (1872), see Virginia Coupon also the issued Supreme a United States Cases, 29 L.Ed. Justice, Brennan, Court William J. State (1885) and, particular, White Constitutions and the Protection Indi- Greenhow, Rights, vidual 90 Harv.L.Rev. 489 L.Ed. protegee and their of more Blackmun, also Section 1983 and Fed- century ago, than a has basic commit- eral Protection Rights— Individual judiciary ment of the federal to mainte- theWill Statute Remain Alive or Fade guarantees nance of constitutional been so (1985). Away?, 60 N.Y.U.L.Rev. 1 completely in It is time doubt. now for the my analysis, justifi- In the foundational jurists state to look first at their oath of immunity totally cation for is without valid- responsiveness office and then renew ity, logic adjudicatory responsibility. responsibility system to the state concepts duty, responsi- The more directly constitution and the that it basic of guarantees. Gerhardt, Ripple bility and discretion should be addressed to Effects n Slaughter-House: Critique Neg- A a liability by any limit and define for fault of ative of Constitution, Rights View the public responsibility actor within a and not of (1990). Vand.L.Rev. 409 responsi- to create an unlimited barrier of bility against public to employ- be assessed Overtly, the decision is to define the level governmental ees and authorities for responsibility of officials where wrongful and unconstitutional conduct. longer misconduct is no insulated. Affixed concepts, protec- Within these the line of corollary to that decision is the decision responsibility wrongful injury tion from abjectly whether we are bound follow malice, is exceeded where bad faith and Supreme the decisions of the United States application Court in its attitudinal of feder- malevolence is is a fur- exhibited.23 There though plot through compare I Even to assassinate James 18-3-301 18-3-303 and W.S. through County, I execution Charles Park 9-1-801 8-1-811. George stamp county attorney the Colonists’ reaction to Ill’s office holder was an assistant tax made rather clear the character superior county fictional with his elected as a official underpinnings, sub- provence doctrine's British I under the of W.S. 18-3-301. am also jects gracious compelling found means of initiating complaint aware of the fact that the King obey simply the repudiating to the law rather than pleaded essentially a this case Section 1983 fed- They the doctrine itself. held his right eral of action and made claim under agents responsible. act, advisors and his through state law the state tort claims W.S. (footnotes omitted). Id. at 2320-21 through 1-39-101 1-39-112. The answer is sim- relationship I am not unaware of the Allegations complaint plistic but direct. Will, Mayor Section claim to subject guarantees touch the afforded S.Ct. 2304.- That issue is not here before us Wyoming Constitution and the defense came on summary judgment the trial since was denied in Cooney a motion to dismiss. should have been appellate is not court and an issue on that basis given opportunity replead to state more State, presented. P.2d Buseck forcefully directly requesting Cf. a claim dam- 1990). (Wyo. prosecuting is not a ages alleged violation of his constitution- within the office of local election state official rights. al county responsibilities. Crane v. State of Texas, liability easy agree personal is that no 759 F.2d 766 F.2d It aff'd modified cert, (5th Cir.), judgment, errors in denied 474 U.S. should lie for innocent (1985); City in the cases that L.Ed.2d 555 Orso v. & nor is there indication Honolulu, attorneys] judges prosecuting ever County P.2d 489 have [or 56 Haw. (1975); subject liability type injury. County, for this Kovarik v. Banner 192 Neb. been definition, over, judges pros- apply By Will does not the world [or 224 N.W.2d 761 ecuting attorneys], acting juris- predominate appeal. within their issue of this See W.S. disregarded for justification to be Section 1983 suits ther fiction of undemonstrable applies if to all arising in Hawaii Imbler pervade these found which, essence, states, rejects Hawaiian common-law judicial immunity cases since immunity prosecutors. justice prevention but to absolute speaks not to discounting Hawaiian com- exposure justice from the deliv- wholesale the actor’s reasoning to being sued mon-law would make the Im- ery system. Fearfulness about United security Obviously, bler vacuous. States luxury blanket afforded deciding performers Supreme Court is the final voice only to available to certain to which the what is federal law and the extent society recognition without in our Imbler overpowers federal law state law. equally man and the doctor share business It unex- chill, product of that court. is left pneu- suffer the same and sometimes grant can state plained how federal court as well.24 monia prosecutors, if it common-law possible it is argue I also the United does, if the 1983 action state for Section Court, even Supreme Section States grant arises does not action action, de- could hold Imbler more prosecutors.27 absolute pendent particular state’s common-law on a Wyoming cases which There three than the treatment Imbler was accorded Imbler, Blake, relate do not mandate the decision 651 P.2d but majority is made in this case. The that a state at 990-95 holds case, principal invested broad lan- civilly Congress immune because could Blake, Imbler, 651 P.2d 1096. guage im- of is meant to alter state common-law have for My antipathy is the decision passing and defenses what disdain is munities expressed, 1983, to but the case itself can today while Blake looks otherwise Section facts reasoning clearly distinguished within its on complete the circular be Imbler25 to Blake, absolutely decision made. prosecutor immune the determinative and holds a reason, attorney, suit, county of suit. as no matter the basis the whatever to civil complaint against the prosecutors filed a criminal indi- applies If Imbler to all state juror immunity,26 on her vidual who had served as because of state common-law conduct, function, This as a have earlier trials. then the common-law Hawaii would * * Blake, diction, Pachtman, But rests Imbler allowed an honest mistake. explanation corrupt acts P.2d at 1099. the of matter, hanging by is a and different distinct It "well that a statute should not be 26. is settled place as an ancient thread that is out of derogation of the common law considered democracy theory the of cloth of modern as expressly so or the result is unless it states government sovereign immunity re- of has imperatively required the nature cently been discovered be. 581, Heisel, Bauers v. 361 F.2d enactment.” (3rd Gray, supra, 47 Cal.L.Rev. 310-11. 1021, Cir.1966), cert. 386 U.S. denied 1367, (accord Mobile 1096, Blake, juror 24. 651 P.2d the innocent Commission, Corp. v. Federal Power Gas Service damaged. maliciously I suffer from had been (3rd Cir.1954), granted 215 F.2d 883 cert. compa- particular if the insurance no distress 446, 742, 950, granted U.S. 75 S.Ct. 99 L.Ed. cert. pay had called to for the nies involved been 950, 447, (1955), 99 L.Ed. 742 348 U.S. aff'd, damages appropriately had been tortious which 373, 332, U.S. 76 S.Ct. 100 L.Ed. 373 jury verdict. It is also fair assessed (1956)). prosecutor in that case has not assume that the not in the future file now date will argument goodA a federal court is faith that jurors without bother- criminal actions place so enabled would need to into context get ing applicable and to to read the statutes principles of a result the established such suitably transcripts proceedings to determine of Cooperative, Byrd Ridge v. Blue Rural Electric any factual what had occurred and whether 953, reh’g S.Ct. 933, 2 L.Ed.2d 356 U.S. anger ego assault could basis for the vented 78 S.Ct. 2 L.Ed.2d denied 357 U.S. longer justified. no state She also is this (1958); Guaranty Co. New York v. 1375 York, Trust of Directory practice. legal Wyoming Bar State in (1990). L.Ed. 7, U.S. 65 S.Ct. reh’g 90 L.Ed. denied (1945); Tompkins, Erie R. Co. v. as authori- 82 L.Ed. 1188 "We are satisfied that touchstone argue comity. disposition appeal well those ty of of for the basis our responsibili- they core lic officials—near volunteer as are— within were not law enforcement attorney not officers. ty prosecuting Imbler, longer but also the existent under (Wyo. Padget, 678 P.2d 870 Petition of principle prosecutors are not 1984), inquiry where a constitutional was prosecution to malicious actions for subject involved, no closer. moves Petition of filing responsi- their elective office within Padget prosecutorial charging held that case, Blake was not a Section bility. assigned to the function executive branch jury verdict was adverse to the but the government could be inhibited negligence prosecutor in the issues of in legislative grant authority judi- Const, friend, hiring supervising her the in- ciary provence Wyo. under negligence investigation vestigator, in her 1, defining separation powers. art. § ex-juror, infliction of intentional legislature The case reveals that the could distress, juror’s violating constituting emotional judicial supervision not attach enjoyment privacy quiet right responsibility an administrative on the by publicizing prosecution. prosecuting who is an executive life Consequently, Wyoming official. stat- Extending suborning Blake conduct disregarding the charging ute decision complaint perjury in order to obtain scope duty properly within the appear here justified does not even arrest branch, executive constituted a violation used. I find language the broad there Const, Wyo. grant art. when § my no after supposition that case review judiciary. made for decision Once appellate a careful briefs and consid made, prosecute the decision to has been brief eration of decision judiciary but not then becomes involved or this court in decision envisioned writers Right to when the before. obtain action No mat immunity for felonious conduct. in an exec- fails can invested efficiently acted re ter how this court officer, not the branch. utive but substantial, punitive actual and verse that recognition This of the status and standard jury against verdict the and her powers not in separation merits of of does its ratio investigator, no rule within deci- provide immunity for or itself misfeasance similarly extends ei dendi now to insulate does wrongfulness. malicious That case Mayor. ther White or Imbler Blake opinion denigrate present majority this in suborning perjury initial go do not the function is confined to since police pro complaint which constitute or prosecution— later initiation of time than function, not a bation officer to secure arrest warrant. false affidavit Ronan, v. 351 responsibility. Robichaud By development, premiere the historical (9th Cir.1965). Coordinately, no F.2d 533 responsibility the of state recognizing case negligence- provided in the discussion rights of the state constitu- enforcement of engendered complaint malicious environ Hosp. is Widgeon tion v. Eastern Shore prosecution ment of Blake about criminal 921, Center, 520, 479 A.2d 923-24 300 Md. Harper disciplinary evaluation. See (1984), which states: Cir.), (5th Merckle, F.2d de 638 848 cert. By Maryland the Declara- Article 5 of 93, 816, 70 L.Ed.2d nied Mary- Rights, tion of all “Inhabitants of (1981). 85 the Law of land Common are entitled Hurst, P.2d comes no 1130 closer of such of England benefit ... authority. providing persuasive The dis- as existed on English statutes parole in cretionary activities board of hundred day July, Seventeen Fourth universally granted Hurst, although not the com- seventy-six_” Under Grimm, 564 immunity, P.2d absolute England, individual mon where law cf. comparable preparing false not rights, protected those such as now by public which is in- a funda- preserved affidavits officials Article were Carta), gov- on {e.g., Magna was decided mental volved here. Hurst document generally Wyoming those immunity under a violation of ernmental action a traditional pub- could be remedied Act decision that these Tort Claims damages. exigencies country require The violation of the consti- powers. exercise of vast executive right trespass, tutional was viewed as trespass giving rise to a action. philosophic purview Martin was followed v. Morrison & Morri- Walinski The review is initiated with reference to son, 616, 18 Ill.Dec. Ill.App.3d early England case: recog- N.E.2d but court first One the earliest cases to illustrate nized that no action should be dismissed Wood, point Lofft’s was Wilkes a motion to for failure to state a dismiss (1793). Wilkes, In Eng.Rep. su- clearly appears unless it cause action plaintiff damages recovered pra, proven no set can under of facts brought trespass action an offi- plain- pleadings which would entitle Secretary cial office of of State The court then found that tiff relief. home who entered his and seized money as a reme- damages were available upon papers general an unlawful war- dy provision of a violation Pratt, in his rant. Lord instructions constitution, provision even if the did state jury, acknowledged that the official remedy specifically provide for the “contrary had acted to the fundamental damages. City likewise Newell v. constitution," principles of the id. Ill.App.3d N.E.2d 344 Elgin, jury and stated that the could consid- (1976) which references for favor- Bivens illegal assessing dam- er conduct remedy support authority able a state ages. repeats and also the United States Su- original). Widgeon at 924 (emphasis Id. preme Marbury. citation of Sim- Court’s recognition a constant continues with authority ilar is found v. Arm- Bull law find a principle Maryland to then (1950); strong, 254 Ala. 48 So.2d 467 appropriate. stated analysis Bivens It is (Miss.1972); Till, Mayes v. 266 So.2d 578 many “many supporting cases that State, 111 Misc.2d Terranova recognized courts have that an indi state 445 N.Y.S.2d 965 v. Ha- State con vidual redress a state or federal 1984) (Alaska 318 n. ley, P.2d by instituting a dam deprivation stitutional (quoting Fitzgerald, 457 Harlow v. age Widgeon, action.” 479 A.2d at 928. 800, 815, 2727, 2737, 73 L.Ed.2d Quoted in at 928 is Widgeon, A.2d (1982)), finding remedy a state “ very Marbury, U.S. at ‘[t]he legislative employee for a branch termi- liberty certainly essence of civil consists “ nation, ‘[qjualified found right every individual to claim “good faith” is an affirmative laws, he re protection of the whenever pleaded....’” must The defense that be ” (Citing injury.’ an v. Econo ceives Butz Supreme Gay Court California stated 485-86, 2894, mou, 438 S.Ct. 98 v. Law Students Ass’n Tel. & Tel. Pacific 2899-2900, (1978).) The 14, 20, Co., 24 Cal.Rptr. Cal.3d 156 595 “ ‘[historically, dam court concluded that (1979), “although P.2d our court ordinary regarded ages have been as the carefully consider federal state action will remedy for inter personal an invasion equal respect to the federal decisions with ” A.2d at liberty.’ Widgeon, ests protection they per- insofar clause 395-97, Bivens, (quoting atU.S. suasive, we do not consider ourselves 2004-05). at by interpreting decisions bound such thoughtful responsive thesis safeguards equal of the or state reach our Supreme is the Illinois courts illustrated protection The court found that a clause.”. case, People in a search and seizure Court pub- stated cause action was Martin, Ill. 46 N.E.2d utility purview of a constitu- lic under (1942): of the California Constitu- tional violation duty referencing right our of all of action duty It is tion Bivens. deprivation these officers of the state to enforce to redress a constitutional preserved damage also found the Florida rights was constitutional v. McKenzie Tank People, so time when Schreiner especially at a Services, Inc., appears beyond to state a claim unless it Management Lines & Risk plaintiff prove no doubt that the could set (Fla.App.1982): 408 So.2d which, accepted by facts if the trier of not a The test to determine whether or fact, Then, in would entitle him to relief.” provision self-executing constitutional Imbler, distinguishing that court said: Supreme clearly set out our Assuming, juncture, as we must at this Gray Bryant, 125 So.2d 846 Court respondent. participated prepara- (Fla.1960), and has been reaffirmed on * * * malice, with and in a tion of the affidavit essence, In numerous occasions. deliberately deprive effort to structured by Gray are directed to determine we allegations appellant process, of due sentence, person or not the “No whether which, if complaint state a claim right deprived because of shall be fact, accepted by trier of could entitle race, handicap,” religion physical or suf- appellant to relief. The district court ficiently delineates “a rule means concluding erred in such an act was gives it right purpose which cloaked with prosecutorial function abso- accomplish may de- is intended to be immunity. Respondent lute cites no di- termined, protected without enjoyed, or authority that the rect for the contention legislative Gray, enactment.” the aid of at issue here falls within the behavior view, provi- at In our supra, scope immunity endorsed of the absolute quite direct and of the constitution is sion persuaded pros- by Imbler. We are implementing legislation. in need of no adversely will not affected in ecutors Development Pro- Phillips In v. Youth discharge by the their duties Inc., Mass. 459 N.E.2d gram, application qualified (1983), the court stated would “[w]e allegations suggest malicious where the however, person grant, that a whose consti- prosecution. tutional have interfered been Edgar, 699 P.2d at relief even in the entitled to allegation stated that the district providing procedural of a statute absence agent an of the Nevada assisted obtaining relief.”28 vehicle preparation Department of Wildlife in the accept supposi- specifically I do not of a supporting the issuance of an affidavit immunity attends to the tion that absolute demon warrant for arrest with contents soliciting any public official in conduct of ques surely cannot be strating malice. It perjurious document to preparation of the a constitutional interest of free tioned that accomplish arrest or otherwise. Neither liberty is in from incarceration and dom Edgar Supreme Nevada Court. conspiratorial did the conduct which vaded P.2d 101 Nev. The constitutional Wagner, causes a false arrest. liberty clearly applied proper personal rule of right infringed the court Harlow, at for a motion to dismiss established. review “[t]he Bebout, 2732; 841 F.2d Schlegel v. for failure complaint cannot be dismissed court, statement, rights. Supreme the Court of Supplementing in a of those footnote, comprehensive recognized principle stated: this United States has and, special factors or an in the absence of that 42 U.S.C. It seems uncontroverted statutory statutory remedy, provide vehicle al- explicit does not a has 1983 alternative § rights of State constitutional protect for the enforcement under lowed direct actions to 527, Taylor, rights. v. 451 U.S. See Parratt Carlson v. Constitution. See the Federal 1908, 1912, 535, L.Ed.2d 420 101 S.Ct. 68 1468, 14, 18-19, Green, U.S. 100 S.Ct. 446 700-701, Davis, 693, (1981); Paul v. 424 U.S. Passman, 1471, (1980); Davis v. 64 L.Ed.2d 15 1155, 1160-1161, L.Ed.2d 405 242-243, 2264, 228, S.Ct. 2275- 442 U.S. therefore, was, statutory (1976). no There 2276, (1979); v. Six Bivens 60 L.Ed.2d 846 available, discharge, of her at the time vehicle Agents Fed. Bureau Unknown Named of of plaintiff seek pursuant which the could 388, 396-397, Narcotics, S.Ct. U.S. alleged violation of her State redress for the 1999, 2004-2005, (1971). L.Ed.2d 619 rights. constitutional Also cited in Phillips, at 457 n. 4. 459 N.E.2d statutory remedy for the of a The absence Co., Printing Cooper Nutley support v. Sun abso- cannot violation of constitutional 189, 197, 175 A.2d 639 36 NJ. judicial protection lutely bar and in all cases Cir.1988). a (9th prepared prose- I am not to hold that The United States Su specifi preme substantively such, cutor, Court has of enjoys privilege the full as considering subject this cally addressed prosecutor, al- a officer. Gagnon, 411 probation parole. official, though in the actual public a is 656; 36 L.Ed.2d Morris simply government’s of trial a case sey, 408 U.S. S.Ct. L.Ed.2d lawyer, just adversary as is the de- his 484; Mempa Rhay, lawyer. fendant’s Both of them (1967).29 19 L.Ed.2d 336 Like professional bound the standards of objec qualified immunity, wise for the ethics, although prosecutor often is Harlow, tive of bad faith is met. standard officer, quasi-judicial a a called charac- 457 U.S. at 102 S.Ct. at obligation terization which describes his example objective L.Ed.2d at 403. As an client, State, to his not to seek to win force, deadly use of reasonableness case an innocent defendant or a F.2d Spinharney, see Zuchel good to win a case unfair means. (10th Cir.1989). equate I would not the trial conduct I re- believe prosecutor adjudicatory with the role a sponsibility to a citizen can be injury pro- judge, a duties involve a whose proper perspective confined to a under the it cess so delicate that would be undesir- Wyoming Suborning, creat- Constitution. subject inquiry by him to suit able ing knowingly using perjury or cannot be Rights An under the Civil Act. advocate justice delivery system is our countenanced position totally stands in a different legitimacy particular- is accorded to be I do not that the state’s advocate believe ly authorized one of so when conduct is supervised our as more immune than the own a member should be gutter advocate, bar. morals excesses is defendant’s who licensed political justification arena cannot be State, I police its officers. there- justice as introduction a standard that a prose- fore dissent from the view delivery jurist and for the sanctified liability cutor in all cases immune from attorney. Sheehy certified Fanale v. Rights under the Civil Act. (2nd Cir.1967). 385 F.2d 866 deci- “[T]he hand, On the other there well be do my of this court cited brothers sions aspects duties a immunity. How- establish broad rule of in a judgment which he must exercise his slate, ever, I writing if we were on clean truly quasi-judicial manner which is situations— feel that there would be some nature. That area therefore should be although one them—in this case scope partial, included of a within the prosecuting which even ‘official’ acts prosecu- quasi-judicial immunity. The protected by not be absolute officer should appropriate tor’s decision liability.” from civil Id. prosecution had is a should be J., Feinberg, concurring. See also Bauers prosecu- I matter in which would hold (3rd Cir.1966), Heisel, 361 F.2d cert, appears there in- tor immune unless an 1021, 87 denied 386 U.S. au- tentional and malicious abuse (footnote omitted), area, thority. is in It such Freedman, J., dissenting, speaking to con- only, give recognition that I extent would recognition quasi-judicial ferred within quasi-judicial aspect prose- prosecutor’s function: though parole parole, ted a of his and the other a 29. Even the revocation of is not violation comprehensive hearing prior part prosecution, we more of held somewhat the criminal making liberty entailed is a serious of the final revocation decision. loss deprivation requiring parolee ac- does not contend that there is Petitioner guarantee process. Specifically, we due held difference relevant corded hearings, parolee process parole one due between the revocation that a is entitled two probation, nor preliminary hearing and the revocation of do we at the time of arrest perceive whether there is one. and detention determine 781-82, Gagnon, probable has commit- 411 U.S. at 93 S.Ct. at 1759. cause believe he VIII. ON SECTION 1983 PRE- cutor's function/30^ WRONG CLUSION FOR THIS CHARACTER Comment, Rights See also Civil —Section OF PROSECUTORIAL MISCON- Attorney Held Im- Prosecuting 1983— mune From Civil DUCT Liability Violation perspective gen- of this case and the Act, Rights 42 N.Y.U.L.Rev. 160 Civil of (1967). prosecutorial eral character of misconduct suggested The author a test from generic objections. raises I rec- two first Dunne, (1st Kelley v. 344 F.2d 129 Cir. ognize scope that the of Section 1983 em- 1965) “recognize qualified or condition- by braces federal law as defined federal immunity by permitting only an action al courts, ‘ state action and but involves state “malice, corrup- upon showing a clear permissible limitations of conduct. Conse- ’ cruelty” and ‘ruthless indifference tion or quently, I extend the constraints ” Comment, rights.’ supra, to a citizen’s public injury responsibility officials for (quoting Kelley, 42 N.Y.U.L.Rev. at 165 damage absolutely no further than re- 135). anticipated F.2d at The author quired by the federal cases for Section 1983 protect the that this “test would reliable only. Secondly, I find little theoretical by providing time of the official for a sum- providence any general limitation im- judgment for the defendant unless mary posed within Section 1983 cases plaintiff produce solid evidence could federal courts to reduce case load as their acts in excess of his that the officer’s were responsibility in assumed order to establish faith.” powers inspired bad Com- addressing a state court standard obli- ment, supra, 42 at 165-66 N.Y.U.L.Rev. gation jurist support, protect of the state added.) (emphasis Unfortunately, the au- obey the state constitution. anticipated thor’s rule never found favor postulates directly These theoretical ad- past qualified progression when the moved occupies dress whether a state official who immunity immunity for conduct to absolute powerful position provided by a demo- for function. government cratic should be immunized regard provinces for the Without responsibility from for his or her action, remedy federal Section 1983 a state significant criminal of- commission of ignores a state official or violates the when fense and/or a substantial breach of ethics left prac- state constitution should not be as an officer the court and introduction, by any and unaddressed This means in court uncorrected tice of law. accept immunizing I suborned remedy. ameliorative since do not 24, 183, 185, cert. of reme U.S. 101 S.Ct. 66 L.Ed.2d 30. The broad academic differentiation 588, injunction 101 S.Ct. 66 L.Ed.2d where the is available to deter denied 449 U.S. dies such, (1980). judge exposed rights by prosecu in all As is invasion of constitutional tor, regards co-conspirators Pfister, to some extent 380 U.S. 85 S.Ct. like his Dombrowski witness, (1965), including requirement ex remedial to be a 14 L.Ed.2d but the Imbler, being party being remedy damage considering cept as a remains from named subjected repayment responsibilities jurisprudence. from the unclear in American The anom Sykes injury resulting conspiracy. States Su from his alies do not there end. The United Vehicles), Court, finding public (Dept. Motor preme that a defender State California Cir.1974). (9th immunity. consequently provides What is did not exist in no F.2d 197 Glover, anomaly presented that the is 467 U.S. is the Tower v. Likewise, conspiratorial although given immunity of a denial L.Ed.2d 758 observed, rights, public person’s defender is generally civil but there was no years Apparently, public if the defender con either since first created not. in 1871 (2nd Cir.), Goff, spires prosecutor, with the defender Yaselli v. 12 F.2d 396 later in subject prose claim and the granted 71 L.Ed. is to a cert. Section dichotomy overtly sense cutor is not. This is aff’d and, such, although conceptionally appli con less L.Ed. and for the United States right federal civil under Section Imbler at a date one cable to stitutional action anomaly applied defenses of century interesting not be to state court Another should later. rights. guaranteed This requirement action for Section the state constitutional that the state unjustified though litany of official mis absolution can be maintained even edge acceptability that judge alleged has an the trial to have conduct state actor is litigants. Sparks, singularly conspired undefined. with the Dennis before, path to laid down in the perjury during or after itate follow the or solicited trial, accept that I excuse will not books. crimi- concepting non-expected solutions in at 581. Id. professional disciplinary prosecution nal or Although Gregoire was- written any- proceedings. The ancestor of unfortunately failed to confine the author derived thing-goes-immunity defense was pathway decision to the factual flight language Gregoire, from a of used Unfortunately, Gregoire it was the case. “monstrous F.2d where it was inviting “monstrous” con- characterization protect deny recovery” necessary to but to damage comitant from which the societal wrongdoer. The court then said: resulted as deified in Imbler and not go saying that It does indeed without issue time relat- particularized clean war official, using guilty is in fact an who responsibili- attorney general ed exercised spleen upon powers to vent his oth- syn- ty. Gregoire post-war was a bad ers, personal motive not any or for other case, explainable as then as was drome but public good, should connected with during the Japanese relocation same liability escape injuries for the he not war. and, cause; may possible if it were so the moral conviction and To understand to practice complaints to confine such persuasion parade ethical vast guilty, deny it monstrous to would be cases, Gregoire invites rela- federal recovery. justification doing so Corp., F.Supp. tion to Omni Intern. impossible it to whether know 1414 which involved a tax fraud indictment the claim is well founded until case which, although resulting in extended court tried, has been to submit all proceedings, juncture. never reached trial officials, as as the the innocent well the internal discussion conduct of guilty, to and to the the burden of trial (Assistant agents and the AUSA revenue outcome, danger inevitable of its would Attorney) United States where indict- dampen ardor all the most but prejudice, ment was dismissed without resolute, irresponsible, or the most in the prosecu- phrases attributable words unflinching discharge of their duties. opinion in the included tion obstruction again interest calls Again justice, attorney-client perjury, breach of may turn for action which out be candor, privilege, mis- lack mistake, founded on a face of conduct, records, investigative altered tech- an later find official himself testimony, niques, untrue and incorrect put satisfy jury it to of his hard conflicting testimony (perjury in more blase good faith. There must indeed means terms), conduct, outrageous lack recol- punishing public officers who have general and failure to inform did lection duties; their that is been truant but appear not combination near more quite exposing another matter from such if twenty-seven page 100 times than honestly have been mistaken to suit opinion.31 apparent What was the total by anyone from their has suffered who punishment criminal for observed and ethi- case, the is so often the an- errors. As All is: cal violations? we know must found in a balance between swer either In the event that the Government de- the evils inevitable in alternative. thought it cides to another indictment in-this In this instance has been seek matter, undoubtedly will an issue arise the end better leave unredressed the whether of the Government wrongs done dishonest officers than about investigators subject try duty prosecutors to do their should be those who disqualified. Based on the misconduct to the constant dread retaliation. throughout nova, opin- in detail Judged as res we should hes- described AUSA, viously, perhaps defense would have been name of the inter- sensibilities, likely proceeding against pros- est of his or more her if a Bivens asserted given. No indication of conduct never had ever instituted. ecutor been disciplinary agency appears. Ob- reference ion, State; belong they this Court has determined her laws to each Agent, Special Agent, the Revenue rights. are her gener- This is true litigation the AUSA involved this must exercising rights, al. But in her a State participate prosecution further in the disregard cannot the limitations which of the case. applied the Federal Constitution has “prophylactic power. 1440. As a rights Id. at sanction her Her do not reach to course entrenched consistent deny that extent. can Nor she “ misconduct,” flagrant maj- ‘law its right General Government the to exer- ” esty equally slimy.’ ... Id. [cannot] granted powers, though they cise all its (quoting at 1440 United States v. Valen- may enjoyment interfere with full cia, (6th Cir.1976)). 541 F.2d powers she would have if those Corp. Intern. can Omni be considered Indeed, granted. had not been thus ev- Gregoire be the standard of ery power addition of to the General excused conduct and shows its results for a involves corresponding Government practical application in the real world of the governmental powers diminution of the justice delivery system. of the States. It is carved out of them. government The respon- reaffirmation of prohibitions We have said the of the sibility first introduced in constitutional 14th Amendment are addressed to the by Marburg, by law then re-examined They are: States. “No shall make State adoption of the Fourteenth Amendment abridge or enforce a law which shall passage and the of the Ku Klux Klan Act privileges or immunities of citizens of the Section 1983 has encountered an * * * States, deny any United nor endemic climate It 1990.32 is almost a person jurisdiction equal within its progression starting from here to there protection They of the laws.” ref- have parte with Ex Virginia, State Otto political body erence to actions of the 339, 346-47, L.Ed. 676 State, by denominated a whatever instru- (1879) (emphasis original): ments or in whatever modes that action Nor does it make difference that legis- be taken. State acts its legislation such is restrictive of what the lative, executive, its or its author- might have done State before the consti- way. ities. It can act in no other adopted. tutional amendment was therefore, provision, constitutional must prohibitions of the 14th Amendment are State, agency mean that no of the or of States, they directed to the are to a agents by pow- the officers or its whom degree power. restrictions of state It is exerted, deny any person ers are shall Congress empowered these which jurisdiction equal protec- within its enforce, and to enforce state ac- Whoever, by tion of the laws. virtue of tion, forth, put however whether public position government, under a state executive, legislative, judi- action be life, deprives property, another of or lib- cial. Such enforcement is no invasion of law, erty process due without or de- be, sovereignty. can state No law away equal protection nies takes have, people of the States laws, of the violates the constitutional States, em- Constitution United inhibition; and as he name acts powered Congress to enact. This extent State, and for the and is clothed with the powers General Govern- power, State’s his act is that of the State. overlooked, said, ment is when it is as it so, This must be or the constitutional case, that the Act has been 1, 1875, prohibition meaning. has no Then the March interferes with state agents jurors State has clothed one of its rights. It is said the selection of power it. for her courts and the administration of to annul or to evade White, perspective, principally In historical as related in David- son, J., (Gibbons, dissenting), finally 752 F.2d 817 life 29 L.Ed. 199 and then come back to Rights Civil Act of 1871 was anesthetized sixty years later. Supreme Court as administered United States 1334 date, City Can confined continued movement philosophy singularly

That is now of ton, Harris, Will, Ohio v. 378, U.S. 109 S.Ct. by the 109 S.Ct. 2304. 489 progression to (1989); DeShaney Department 1197, Monell v. Social Ser 412 103 L.Ed.2d of York, County Dept. Winnebago New Social Servic City 658, vices 436 98 U.S. of — es, 998,103 Monroe U.S.-, 2018, (1978); L.Ed.2d 109 S.Ct. S.Ct. 56 L.Ed.2d 611 (1989); Mitchell, Pape, 187, 473, 511, 167, 472 81 249 U.S. 105 365 U.S. S.Ct. 411;33 on Baker v. 2806, overruled 484, 5 492 S.Ct. 86 L.Ed.2d L.Ed.2d McCollan, 443 grounds 436 2689, 2018, 137, other 658, 99 61 98 U.S. S.Ct. U.S. S.Ct. (1979). Will, 2304, (1978) (“Section 109 1979 L.Ed.2d 433 S.Ct. [now date, outpost completes against read the as the last the Section should be 1983] adjudicatory which background liability a tidal activities of tort that makes wave protection of indi conse demean and diminish the responsible man the natural Matteo, Barr v. actions”); against right government. vidual acts quences of his 564, 1335, provided by 79 S.Ct. 3 L.Ed.2d 1434 The cancerous dehabilitation 360 U.S. States, v. United Screws (1959); conjunctively the has 325 U.S. official immunities 1031, (1945); rights L.Ed. the to recover while the overrun S.Ct. States, McNabb v. United have the devastation 318 U.S. basic sustained reh’g denied barrage of Philo of the continued attack. 87 L.Ed. S.Ct. Judge sophically give-up 87 L.Ed. 1727 enunciated as U.S. Vilas, Gregoire, Spalding (1943); in F.2d 579 and deline 161 U.S. Hand and in (1896); right but ated individual benefit deterrent in L.Ed. Barr, increasing protection of 3 L.Ed.2d the then trend 1434,34 historically ended and the converse official immunities the individual significantly its action then started recent creation federal movement Mitchell, litigation against U.S. at An made in of claims or themselves to observation 522-23, judicial pro- applied to "the then be functionaries the S.Ct. at 2813 that other rules, government being is self-correcting: procedural establishment. It a fear of largely cess is involved, being right. not the It is comfort appeals, possibility the of collateral chal- and supposition the skilled not unlike the sur- lenges damages the need for actions to obviate geon go for his own medical attention should prevent unjust results" is undemonstrable in man, or a because of witch doctor medicine general as a nature of events in occurrence profession fear of in which his skills have the clearly Thirty-eight country wrong here. and Observedly, it been entrusted. is no different days proof jail observa- is of the erroneous predominating from the feature of the so-called striking Greengard, is Law- tion. A most article crisis, malpractice which has medical insurance Today, yer Discipline 17 Barrister 11 time, stage entered two current where sincere judge lawyer Every appellate involved in analysis and severe academic reveals it nei- attorney discipline read this article. should problem ther cost of nor the the insurance concern, recovery magnifies patient which 564-65, Barr, at 34. In at essentially possibility, if but not more than weighing process was de- dilemma lawsuit, filing that of whether well scribed: founded or not. weigh upon We in this case to are called question is created The unanswerable particular two considerations of context supposition within the authenticated high again importance now and come which justice delivery system has no confidence hand, pro- sharp the one into conflict—on justice merchandise of for which its existence is against pecu- citizen tection of individual provide. Anybody in created to business niary damage by oppressive mali- caused or litigious society litigation era of this knows that part of cious action on the officials inconvenience, is an first, but the real concern is other, Government; on Federal fees) litigative (primarily costs shielding protection of the interest secondly, availability judg- if a resort governmental responsible officers might Why ment be lost. the busi- of substance of vindic- and inevitable hazards nessman, harassment private professional individual damage brought on and, matter, tive ill-founded suits for that the automobile driver of action taken the exercise of publicly account subject exposure, should but the responsibilities. supported governmental their official official demands insu- major entire persuasive- curiosities of this One of lation insolation has never been reading writings ly cogently explained exercise of within the mass of academic jurists conclusory justifying expansion mer- who deal in the comments multitude of rights. paranoic price fear statism the of individual their like chandise of lawsuits is developed prece jurisdiction, with no accurate excess of but that he act- accurately can dent that described as a maliciously corruptly. ed If he did compared historical evolvement when to ei so, is, my opinion, subject he to suit ther the United States Constitution or the private person the same as a would be rights legislation civil of the 1870’s. under like circumstances. legislative judicial Contrails of 357, Davis, J., Id. 13 Wall at dissenting. immunity only, among quantities can Bradley ninety-six years was followed la- enunciated, occupational immunities now by ter ordinary judicial the rather decision traced distance into American his- .be Pierson, 547, case 386 U.S. law, English torical and and not then to 1213, 18 L.Ed.2d 288 and the not so ordi- Otherwise, justify present developments. nary Douglas recogni- dissent of Justice development the entire of official congressional prerogatives tion of the only product can be found as a of case to legislating in passage be found of the legislation. adjudicatory case creations as Ku Klux Klan Act Rights as the Civil Act Unfortunately, Wyoming, the state of of 1871. long jump through one the decision of this Blake, court in 651 P.2d now judges, I do not think that all under all re-engineered here in Cooney, does not circumstances, no matter how out- only adopt remedy federal what the rageous their conduct are immune from system decisional law federal con- 13, suit under Stat. U.S.C. 1983. § trols, exceptions but also creates to the ruling justified by The Court’s is not rights by constitutional enumerated vigorous admitted need for a and inde-

Wyoming Constitution as non-bendable pendent judiciary, is not commanded principles. simply ignores This court judicial the common-law doctrine of im- caressing Wyoming Constitution statism munity, inexorably and does not follow rejecting rights through individual its prior from our decisions. creation of official immunities. statute, which came on the books development in That historical American April as 1 of the Ku Klux Klan Act of § informative, philosophically law is albeit 20, 1871, 13, provides 17 Stat. that “ev unconvincing distressing. More than ery person” who under color of state eighty years adoption after the law Unit- shortly ed Constitution and after the States “subjects, or custom or causes to be sub 1871, passage Rights Civil Act of jected, any deprivation citizen ... judicial immunity was first created rec- any rights, privileges, or immunities ognition Bradley for federal law v. Fish- laws, secured the Constitution and 335, er, 13 Wall 80 U.S. 20 L.Ed. 646 party injured shall be liable to the in an case, Even in that initial the dis- law, equity, action at suit or other recognized sent the disconsonance in the proper proceeding for redress.” To holding: most, “every person” every would mean agree judicial I officers are ex- person, every person except judges. not empt responsibility from in a civil action words, plain import Despite the of those judicial respect for all their acts in Tenney the Court decided v. Bran controversy juris- matters of within their dhove, 783, 95 341 U.S'. S.Ct. [71 further, agree, judges I diction. legislators are im L.Ed. that state 1019] general authority equally superior or long depriva mune from suit as as the exempt liability, they even when they tion of civil caused jurisdiction, unless have exceeded their person legislators occurred while the complained the acts of were done mali- acting legislators in a field where “were ciously corruptly. But I dissent from Id., power at traditionally have to act.” majority the rule laid down I S.Ct. at dissented from court, [71 789]. judge exempt from that a liabili- exception the creation of that present, it is ty in a case like the where present proceeding I from the creation of the one. alleged that his do Strickland, Pierson, 558-59, 420 U.S. Wood 87 S.Ct. at U.S. J., reh’g denied (emphasis original), Douglas, 1219-20 43 L.Ed.2d S.Ct. dissenting. (1975); officials who directed the ac- state judicial immunity case was not The third against college tion of National Guard ordinary judge parte, with-

so where the ex students, killed at the some of whom were any adjudicatory protection for indi- out shooting, Scheuer vidual, University sterilization Kent State “judicially” authorized Rhodes, girl. By and mor- teenage philosophic 416 U.S. agreement (1974); with what dissent alistic and action of cabinet L.Ed.2d said, scope judi- I Butz, official, then believe that “the liability ‘judi- Butz, cial is limited 490-91, 57 L.Ed.2d 895. 438 U.S. at acts,’ Judge I think that what cial (footnote omitted), in 98 at 2902-03 S.Ct. 9, authorizing Stump July on 1971 did [in cases, on the was founded review sterilization], beyond pale was sounding principle: realistic rather sensibly anything that could be called demonstrate, As cases a federal these Stump Sparkman, judicial act.” protected official for action tortious was 1099, 1109, 349, 365, 98 S.Ct. U.S. only if his under state law acts were 951, 331, reh’g denied U.S. L.Ed.2d by controlling law. authorized federal 2862, (1978), Stewart, 56 L.Ed.2d 795 S.Ct. he make out his defence must show “To J., dissenting. further said Justice Stewart in authority that his was sufficient law majority in to the five member answer Cunningham v. Macon & protect him.” Burger opinion of the court: Co., 446, 452 Brunswick R. 109 U.S. [3 finds reasons for hold- The Court two (1883); Belk 292, 297, 27 L.Ed. S.Ct. 992] ing Judge Stump’s approval of the that Schild, 10, 19 nap v. 161 U.S. S.Ct. [16 judicial petition was a act. sterilization (1896). 443, 446, Sine an 40 L.Ed. 599] First, it “a says, was function Court act, if even authorized unconstitutional by normally performed judge.” Sec- statute, as not authorized was viewed ond, per- says, the act was the Court law, contemplation of there would be capaci- Judge Stump’s “judicial formed United States immunity defense. no respect, I ty.” With all think Lee, 196, U.S. 218-223 S.Ct. at [1 factually grounds first these untrue (1882); Virginia 258-63, 27 L.Ed. 171] legally unsound. the second is Cases, 269, Coupon 114 U.S. 285-292 [5 365, Id. at 1109. The last case S.Ct. at 911-915, 903, 29 L.Ed. S.Ct. 207] Pulliam, judicial addressing immunity responsi supposition, principle That as 1970, 80 L.Ed.2d 466 U.S. S.Ct. Harlow, bility, long was not last when injunc- supposition where even the 800, 102 457 U.S. S.Ct. contradiction of constitutional violation tive LaHue, and Briscoe 460 U.S. fraternity consequent judicial cert. denied S.Ct. 75 L.Ed.2d responsibility payment fees 1426, 75 L.Ed.2d 787 U.S. provided continuing partic- firestorm has followed. Harlow was surely one of ularly among membership of the feder- appliances significant to affect a most al bench. Pulliam at teaches that least responsibility for immunity confinement of official is confined the all inclusive improper injury the citizens in address damages. lawsuit ing immunity scope available judicial immunity estab- preclusive The president of the United senior aids Bradley, 335 was followed lished in U.S. Nixon, following States as Tenney, legislative immunity Nixon, 349. In 73 L.Ed.2d 95 L.Ed. 1019 and created immunity president given absolute of the Civil eighty years passage after Harlow, it quali was discerned that fol- Rights parade Act. A of cases then immunity constitute the norm. should fied seeking either absolute lowed analyze significance the case was to protectiveness qualified immu- enhanced subjective aspects of objective administrators both nity. This included school good By subjective port faith. assessment that absolute emphatical- more good faith could seldom be ly resolved persons for such than ordinary summary judgment litiga- and to make the Subjecting government witnesses. offi- proceedings summary judgment prone, tive cials, officers, such police damages adopted Harlow the test of reliance on the liability under 1983 for their testimony § objective reasonableness of the official’s might undermine not their contribu- conduct as measured reference to a tion to the process but also the clearly rule established of law. Unfortu performance effective pub- of their other nately then percep most minimal lic duties. world, tiveness of the majority real 342-43, (footnote Id. 103 S.Ct. at 1119 author added: omitted). sarcastically This is identified as By defining qualified the limits of im- lie, the license to witness immunity justifi- terms, munity essentially objective we cation. justification There have been provide no license to lawless conduct. process nature of the required public interest deterrence of un- participation, conjecture but if lawful conduct and in compensation of lied, they they should be immunized is protected by victims remains a test that hardly inspiring pervasive answer. The objective legal focuses on the reasonable- fear increased court business of ness of an official’s acts. offi- Where an officials who demean and dishonor their expected cial could be to know cer- that profession Burg- became a hallmark of the statutory tain conduct violate would or er/Rehnquist adaptation immunity rights, constitutional he should made be which then carried forward to Davis v. hesitate; person to and a who suffers Scherer, 183, 3012, 468 U.S. 104 S.Ct. injury by may caused such conduct have 139, 1226, L.Ed.2d reh’g denied 468 U.S. a cause of action. But an offi- where 26, (1984), 105 S.Ct. 82 L.Ed.2d 919 when legitimately require cial’s duties action in requirement the was interdicted that inva- clearly rights established are not sion of a statutory constitutional or viola- implicated, may interest be showing tion be made the clear better served action taken “with inde- However, injured Malley citizen. in pendence and without fear of conse- 335, 1092, Briggs, 475 U.S. S.Ct. quences.” Ray, Pierson v. 386 U.S. (1986), L.Ed.2d 271 immunity the absolute 1213, 1218, 87 S.Ct. L.Ed.2d perjury of the witness committed was not (1967). complainant extended to the officer whose Harlow, at U.S. S.Ct. at 2739 statement resulted in issuance of a warrant (footnote omitted). Briscoe, 460 U.S. and the arrest of the citizen. provided 103 S.Ct. 75 L.Ed.2d 96 wit- Creighton, Now we have Anderson v. immunity perjury ness even for at a crimi- 483 U.S. creation, immunity nal trial. In the court (1987) person where reasonable test for premise: established functional legitimatizing improper arrest suf- would clearly cases indicate that immuni- [0]ur preclusive immunity fice to create the ty analysis catego- rests on functional injury damage person. to the arrested ries, not on the status of the defendant. That court said: A police officer on the witness stand performs Although same functions as oth- we have narrow circum- witness; subject compulsory er he is to provided officials stances abso- oath, process, responds ques- see, takes an to immunity, Fitzgerald, lute Nixon v. tions on direct examination and cross-ex- 457 U.S. 73 L.Ed.2d amination, prosecuted subse- unwilling we have been quently perjury. complicate qualified immunity analysis

Moreover, by making scope extent immu- that extent traditional nity precise reasons for witness are less turn on the nature of various witnesses, applicable governmental precise officials’ duties or the character public policy sup- particular rights alleged other considerations of have rights century passage has after the of the civil An that been violated. legislation, legislation to many are modes of enacted variants as there immunity. provide absolute types of would official action and disdain, hope, despair, combining In give conscientious officials as- object majority protection that it is the stated: surance of provide. doctrine With operation The ultimate fairness mind, par- turn to the observation we system itself could weakened arguments ticular advanced prosecutors lia- subjecting § Creightons. procedures bility. post-trial Various determine whether an ac- available to 642-43,107 Id. at 3040-41. fair has received a trial. These cused adopted court then result the widest powers procedures include the remedial logically procrustean adaptation and least review, judge, appellate trial possible effectively the bur- reversed post-conviction collat- state and federal Toledo, proof Gomez den of stricture eral remedies. all of these atten- 636,100 64 L.Ed.2d reviewing judge tribunal is tion of damages process for denial primarily on whether there was focused nighttime by police officers invasion trial focus should fair under law. This citizen. in the home an innocent not be blurred even subconscious Qualified Im- Public Officials’ Shapiro, knowledge post-trial decision munity in Section 1983 Actions Under might of the accused result favor Fitzgerald Progeny: A Harlow v. and its being respond prosecutor’s upon called Analysis, Critical U.Mich.J.L.Ref. damages for his error or mistaken sum- The court’s redirection of judgment. mary judgment applied then to a law- conclude that the considerations We within the initiated a state court suit dictate the same absolute outlined above Inc., Lobby, Liberty Anderson v. 477 U.S. prosecu- immunity the under that § 91 L.Ed.2d 202 S.Ct. sure, enjoys common law. To be tor at Catrett, Cory. and Celotex immunity genuinely leave does the (1986) postu- 106 S.Ct. wronged defendant without civil redress Finally significant came the de- lation.35 against prosecutor whose malicious or governmental struction of remedies deprives liberty. him of dishonest action rights citi- agency injury to the caused qualifying prose- But the alternative of Will, zens under Section 1983 immunity would the cutor’s disserve the confinement of ameliora- where pre- would broader interest. It remedy government was tive acts perform- vigorous vent the and fearless from the state definition disconnected that prosecutor’s duty ance of the is es- the and its official person to exclude state functioning proper to sential the (whatever that come representatives justice system. criminal mean). to Imbler, 427-28, U.S. at changing within this morass Embodied omitted). (footnote 993-94 protec- perceptible movement faulty first in recitation Imbler injuries right of an individual’s tion invading statism, preclusive rule at common is the about a similar by government Imbler, rule pur- Any law. broad could 1976 case of Imbler. for the such Gregoire, language in rights proceedings, traced back to the poses of civil then dat- existence nearly adoption 177 F.2d 579 and not two centuries after ed predating passage case Civil and one law of the United States Constitution authority Liberty Lobby, today with undiscernible benefit. See concept of Inc. finds Caldwell, (Ala.1989) approval the state courts almost So.2d 686 no Berner v. certainly explicitly Comment, has been. uninvited Liberty Lobby, Inc.: Fed- Anderson v. although system, Wyoming adjudicatory Case?, or First Amendment eral Rules Decision argue lawyers to brief and continue out-of-state Liberty Lobby, (1985). 59 U.Colo.L.Rev. 933 Creighton Inc. and without state

ISSQ in 42 1983 all immuni- abysmal naivety, porated U.S.C. Act. In almost Rights § law, here, existing it would not Imbler related: ties at common apropos absolutely prosecutors are follow that immunity of emphasize that We immune from suit for all unconstitutional liability in suits under prosecutors from doing committed the course of public power- acts 1983 does not leave § Secondly, by no means punish jobs. that their it is to deter misconduct or less sug- immunity has never occurs. This Court true that such blanket absolute which gested policy necessary helpful protecting considerations or even immunity for certain compel hardly civil judicial process. It should place them governmental that, officials also liability in stating ordinarily, need law. beyond the reach of the criminal damages for unconstitutional or other- judges, cloaked with absolute civil Even very illegal conduct has the desir- wise centuries, pun- could be deterring conduct. effect of such able criminally deprivations ished for willful Indeed, precisely proposition this was rights strength constitutional on upon 1983 was enacted. Absent which § * * analog criminal of U.S.C. § circumstances, *, with re- special Littleton, 414 U.S. O’Shea § attacking the decision to spect to actions 669, 679, 38 L.Ed.2d [94 bringing of evidence or prosecute or the States, (1974); cf. v. United Gravel 674] court, expect argument one would 2614, 2628, 33 [92 pro- judicial process would be prosecutor L.Ed.2d 583] integrity en- tected—and indeed its for his willful acts. fare no better would prose- by denial hanced— Moreover, perhaps stands engage in unconstitutional cutors who unique, among officials whose acts could conduct. rights, persons of constitutional deprive 441-42, (footnote 96 S.Ct. at 1000 Id. at disci- amenability professional in his omitted). peers. by an association of pline I in detail the meander- have addressed argument checks undermine These immunity in the decisions of ing of official liability is the imposition of civil Supreme as not States Court United prosecutors are only way insure that changes fast it to authenticate how either the constitutional mindful of right remedies little is left for civil or how persons accused of crime. First, adap- I find our under Section 428-29, Imbler, at 994 424 at U.S. Blake, in P.2d 1096 to have been tation 651 omitted). (footnotes with the mill- justified, than but even less White, judg- concurring in the Justice case, present extension to weight that no ment, general ab- correctly recognized that constitution to deny protection of the state did not prosecutors for solute judi- the state the state the citizens of law. exist at common our oath and ciary justified can under be immunity at no absolute There was extension judicial responsibilities. Such other than prosecutors law for common legal slightest moral or not have the does for mali- immunity from suits absolute rightful- or intrinsic justification in reason There and defamation. prosecution cious these cases Reading every one of ness. of action at causes simply no other were me to believe that a no provides basis against prosecutors brought law common prosecutor acting as an assistant lawyer in their official conduct committed in responsibility immune should be is, example, no re- capacity. There knowingly maliciously damages if he common law a suit at case of ported accomplish the arrest and perjury to uses suppression or prosecutor against a citizen. jail in of an innocent retention exculpatory evidence. nondisclosure line of federal cases that There is a accepted the had Thus, if this Court even judi- in the opinion writers should cause not, v. it has Scheuer which proposition, Those are the cases ciary great concern. 40 Rhodes, 232 416 U.S. [94 of a crim- prosecutorial dismissal incor- where (1974), Congress L.Ed.2d 90] 1340 jail a civilly injuries in he settled for in complaint

inal is conditioned some fash- unless charged upon improperly Wyoming application, ion accused I fire. At least for liability signing a release in favor public immunity not find insulation from do governmental agency. Apparent- police or criminal blackmail.36 person ly, prosecutorial blackmail of a give significant of a Coercion witness confinement or continued with threatened testimony by threatening the witness false damage release is prosecution unless a civil jail "just prosecution” was house appear to signed be bothersome does (8th Hartje, 827 F.2d 1203 v. Williams judiciary absolving prosecutor by Cir.1987), prosecutor partici where the immunity. For the insulation absolute pated inquest in an absolved fel which statute, the blackmail W.S. example, see jail county employees from a contended low 6-2-402, the official misconduct stat- conspiratorial cover-up house homicide. 6-5-107, ute, neither of con- W.S. alleged in the conduct of the coroner’s exception. Ignorance prosecutorial tains a conspiratorial arrange inquest. How a relating statutes or inattention to blackmail up jail cover a house murder fits ment to prose- activity pursuit of this prosecuting the broad character of within obvious, e.g., 6-2- cuting attorney is W.S. attorney’s public duty responsibility is not 402, blackmail; Fidelity & United States result, opinion. In historical clarified Cook, Wyo. Guaranty v. P.2d Co. inquest prosecu in which the the coroner’s 31(a) Extortion, (1931); Am.Jur.2d assisted, delayed for the victim Blackmail, tor the trial Etc., at 609 and 50§ § problem always twenty-four years will for over and then result police commits in acquittal created where the ed officers who by leveraging blackmail alleged what is effect beat the victim death have dispute Maine, civil settlement into jail. Campbell In v. State of plea negotiation. decision (1st Cir.1986), in result con 787 F.2d Williams, trary 465 F.2d to Hilliard v. Unfortunately, cannot when difference (6th Cir.), cert. denied bargaining plea discerned between L.Ed.2d 322 it was negotiations liability civil at threat to settle prosecutorial withholding determined prosecution, judiciary itself is exculpatory acceptable evidence was Bouse, F.2d trouble. See Schloss damage an immunized Section 1983 con Adams, (2nd Cir.1989) Boyd apparently text. As was the master con Cir.1975). (7th F.2d 83 McGruder spiracy discredit and harass. like (5th Cir.1984), Necaise, there 733 F.2d 1146 Willins, (2nd wise Lee v. 617 F.2d plaintiff that he would was a threat Cir.), get a life for minimal offense cert. denied sentence Gerstein, immorality language in v. incomprehensible and venali- Our F.2d 36. An Henzel (5th ty concepts: Cir.1979), is from the demonstrable is to 657 n. 4 not maintain, initiate, contrary. prosecutor alleg- to dis- The in case The decision charges edly is at the core miss criminal acted with the same motive as Necaise prosecutorial al- function. These defendants Henry agree- intimidate Henzel into —to prosecutorial powers legedly to their used ing state But not sue officials. the Henzel dismissing his dam- McGruder into threaten prosecutor’s conditioning parole activities— argues ages suit. McGruder therefore agreement to sue—were not on an not those prosecutor not those of a their activities were seeking contrast, Henry protected by Imbler. crime, punish and deter but of an prose- sought "persuade" with their Necaise agent county seeking to intimidate a power, and therefore remained with- cutorial rights. exercise constitutional citizen his immunity. prosecutorial field of their reprehensible a would be Such motivation McGruder, F.2d at This conduct abhorrent, they do but and such threats comfortably Wyoming would not fit without the prose- a decision to maintain criminal lift the Perhaps extortion statute. a differentiated pro- prosecutorial activities cution from legal sense of ethics and criminal misconduct Adams, Boyd Imbler. tected jurisdictions. exists in other United States v. Cf. Cir.1975) (7th (anticipating Imbler F.2d 83 test; Davis, Cir.1989). (7th 890 F.2d charges in return for release dismissal immunity). within

I34I plaintiff prosecutors where tablished that are entitled to alleged prosecution only qualified immunity that the perform- when * * ing investigative or administrative func- (1) witness, *, induced a defense had * * * prosecutor’s tions. When a activi- testify to render herself unavailable ties are not connected with his role as an dropping felony charges

return for Government, her, (2) witness, advocate the rea- against compelled a * * *, extending sons for by arresting absolute perjure herself incarcerating days are absent.” her for fifteen with threatening out cause and to “take at (quoting Hampton, Id. 600 F.2d away” baby, her coerced false testi (7th Cir.1979)), J., Swygert, concurring. mony Joseph by imprisoning Cox broadly rivaling The thrusted case Im- methadone, (4) depriving him and him of general bler enunciation of excused sought and five obtained indictments wrongfulness Taylor is Kavanagh, crime, (5) supervised police the same (2nd Cir.1981): F.2d “planted” pistol officers who in Lee’s Thus, prosecutor is insulated from lia- possession. Judge granted Nickerson bility directly where his actions concern complaint motion to dismiss the pre-trial phases or trial of a case. Davenport, defendants Gold and example, swearing For of warrants * * *, relying upon prosecutorial im trial, to insure a witness’s attendance at munity recognized in Imbler v. Pacht * * *, the falsification of evidence and man, 424 U.S. * * witnesses, *, the coercion of or the (1976); L.Ed.2d 128 and entered final drop charges immediately failure to until 54(b). judgment under Fed.R.Civ.P. * * * trial, before have been held to be threatening prosecution if letter prosecutorial activities for which abso- advertising legal stop did not ser- applies. Similarly, lute be- prosecutor vices was immunized for the prosecutor acting cause a as an advo- (7th Patchett, 686 F.2d 582 Goldschmidt judicial proceeding, cate in a the solicita- Cir.1982). in justification The court said perjured tion and subornation of testimo- exercising qua- that “the evidence, ny, withholding or the si-judicial function is immune from civil illegally-seized introduction of evidence damages.” rights liability for Id. at 585. liability create at trial does not dam- considerably logic, judge in With more ages. special concurrence denied entitlement to justification given was: immunity. “If absolute defendant believed sound, approach The rationale for this law, plaintiff had violated state he activities, protected de- for these while plain- prosecution could have initiated a plorable, judgment involve decisions of prosecutor’s prosecute tiff. A decision to affecting prosecution. the course of a protected by immunity. or not is absolute efficient, just, performance The letter sent the defendant here was function would be charge not connected with his decision attorneys chilled if Government were plaintiff of state law.” Id. with violation worry forced to that their choice of trial J., Swygert, concurring. In further subject strategy and tactics could them discussing disagreement the ma- best, monetary liability, or at the in- prosecuting attorney im-

jority that the is “good proving convenience of a faith” suit, mune from the he reiterated that: defense to a 1983 action. § in not Supreme Court Imbler did “[T]he argument The is Id. at 452. vice actions of the state hold that all official responsibility criminal and ethi- where does prosecutor absolutely are immune from fulfilling fit into the excuse cal standards liability. only held section 1983 Imbler prosecutor to characterizations? Is the immunity prosecutor that a has absolute state, more fearful that the his insurance initiating prosecution prose- and in ‘in a ” * * * might company 6r even himself have to cuting case.’ “Deci- the State’s monetarily right wrong a rather than he in and other circuits have es- sions 1342 conspiracy. Consequently, any

might incarcerated for felonious miscon- tions legal activi- defense immunity or disbarred ethical broad need for an duct allegations ties? existent. Insufficient bare conspiracy adequately have suf- would compared responsi is the level of To be just some. for all defendants and not ficed resulting bility investigative activities in prosecutorial activities Morrison v. surveillance from warrantless electronic (5th F.2d 242 Rouge, 761 City Baton balancing deprivation in “the considered Cir.1985), alleged against a to have been directed remedy denied individual ** *” efficiency, governmental up police a grand jury presentation interest of to cover Kleindienst, 1203, Forsyth granted v. 599 F.2d killing teenager, were black (3rd Cir.1979), cert. denied 453 U.S. immunity. litany is stated for the 997, reh’g 69 L.Ed.2d Appeals Eleventh Circuit Court denied 453 U.S. immunity “[p]roseeutors have absolute (1981). ques tapping is L.Ed.2d 1025 Wire damages civil suits under section tionable, apparently suborning perjury is intimately associated with for actions Forsyth not so bad. was followed judicial process,” criminal phase of the prosecu personnel discharge case “they to include claims that which stated Lester, v. 630 F.2d tor’s office Mancini suppressed ma- testimony false offered Cir.1980). (3rd Participation in an il trial, charges investi- terial at filed without engaging in legal search seizure and and gation jurisdiction, groundless filed de- fell outside the Imbler umbrella slander evidence, tainers, suppressed exculpatory Hialeah, City 625 F.2d 499 Marrero v. investigate complaints or prison refused Cir.1980), (5th cert. denied 450 U.S. with vindictive crim- threatened defendants L.Ed.2d 337 Mclver, prosecutions.” inal Wahl case, relatively early Another Henzel (11th Cir.1985). F.2d Cir.1979), Gerstein, (5th 608 F.2d Appeals, The Ninth Circuit Court after happier characterization of mo- provides no assessing legality, of cases venali- course misconduct included rality where stated Udall, ty criminality, Beard v. investiga- filing an information without (9th Cir.1981) F.2d 1264 and Rankin tion, filing charges jurisdiction, without cert, Howard, (9th Cir.1980), 633 F.2d 844 detainer, per- offering filing baseless 939, 101 S.Ct. denied 451 U.S. exculpatory jured testimony, suppressing (1981), extended umbrella L.Ed.2d 326 investigate evidence, refusing Hen- Pope, F.2d Ashelman v. prison system, complaints about zel’s (9th Cir.1986): criminal threatening Henzel with further the doctrines of Our examination of persuade prosecutions, attempting immunity con- state officials in return Henzel not sue broadly more vinces us construe parole. immunity. Although a availability of then resolved: The court may suffer because of the loss of few prosecutor knowingly where “[E]ven seemingly meritorious claims testimony, deliberately perjured used policies judges prosecutors, information, or exculpatory withheld support can be fulfilled facts make full disclosure all failed to freely granted if immunity].” Prince v. Wal- provided [is exceptions narrowly few and drawn. (5th Cir. lace, 1178-79 568 F.2d Allegations conspiracy judge between 1978). predetermine the out- Id. at 657. judicial proceeding are insuffi- come of for all have been resolved could Henzel immunities. cient to overcome those defendants, past including defense charged Appeals The Sixth Circuit Court of fol by the ab- counsel, ultimately was it Shankland, malice, suit in bad lowed Jones 800 F.2d necessary evidence of sence (6th Cir.1986), allega- 77, than bare cert. denied U.S. anything other faith or the merits his actions cannot be exam- 1048, 107 argued shaking public ined without plaintiff where the confidence in his and his own in many charged against claims office confidence Schlegel, his work.” (em- prosecutor’s office relate to 841 F.2d at 945 those investiga- added), Noonan, J., their role as administrator or phasis dissenting.37 officers, rather than as advocates. tive prosecutorial The misconduct civil suit complaint essentially allega- contains His general fall claims into three classes differ- exculpatory failing tions of to disclose entiated the factors that create the concerning and other information wit- group claimed misconduct. the first is nesses, procuring testimony, failing false the convicted individual with conviction nor- causing perjured testimony, to correct mally, although always, not unreversed counsel, conflict of interest for defense where, effect, proceedings direct in Jones, disclosing put- that conflict to civil action constitutes a collateral attack. camp, ting “spy” the defense summarily subject These cases are to dis- “covering up” allegedly those unconstitu- position prosecut- without insulation of the tional actions. ing attorney by blanket. Un- That court then said: fortunately, language over-extended is fre- appear to foregoing The actions us quently applied in decisions which are es- clearly scope within the sentially easy disposition dicta where an Supreme contemplated by the Court Wahl, appropriate.38 F.2d Imbler. The perjured testimony use of Category two is what I will define as the in- exculpatory and the non-disclosure of ques hard ball or the hard rider cases of certainly entitled to formation are abso- tionable action introduced uncontrolled Imbler, immunity. at lute U.S. prosecutorial effort to secure conviction. at 995 n. 34. The 431 n. overreaching These are the ethics and spy problems conflict of interest and the cases where the contended conduct certain related allegations also seem to be would ly professionally improper fre to the acts of an and thus come advocate itself, quently, in constitute a crime of su prosecutorial the area of immuni- within borning perjury or misuse of office. Rex v. up allegations which ty as do the cover (10th Cir.), Teeples, 753 F.2d 840 cert. de merely appear to be restatements of the 967,106 nied 88 L.Ed.2d prosecution’s claimed failure to disclose (1985); Lee, 617 F.2d 320. exculpatory information. Id. at 80. category purpose is the ulterior third prosecuting cases where the official uses justification Perhaps strangest purposes power and his office for other immunity was stated dis- benefit, revenge pro- monetary such as Schlegel, 841 F.2d at 945 sent someone, governmental pri- tection of questionable from a statement paraphrase 242; McGruder, Morrison, Im- said, 761 F.2d citing vate. Imbler. The author Shuman, 1146; bler, Jennings prosecutor is immune because 733 F.2d “[t]he damages. expected cognizant the First Such suits could means to those 37. This frequency, cannot function for a defendant often Amendment that with some criminal, being prose- unethical or unless he can hide his will transform his resentment public actions from review ascription improper slothful cuted into searching expected provide lawsuit can be actions to the State’s advocate. malicious * * * is the fact review. Even more curious Further, prosecutor could be if the membership and im- that the case involved such a made to answer in court each time munity Public Service Com- of the California wrongdoing, person charged his en- him with mission. ergy diverted from the and attention would be 424-25, Imbler, duty enforcing pressing S.Ct. at the criminal law. What 424 U.S. at actually stated was: trial, cases, fringe e.g. filed before 38. There are prosecutor’s public trust of the office Ashelman, or filed after ultimate 793 F.2d if he were constrained in mak- would suffer revenge, Joseph, acquittal every consequences for retribution or ing decision liability potential in a of his own suit F.2d 549. terms 1344 United States ex (3rd Cir.1977); fit into a certain 1213 standards of conduct when F.2d Deutsch, (3rd

rel. Rauch v. 456 1301 F.2d performance time and zone-39 are immun- Cir.1972). See, however, United States v. ized, may have reasonable while what been Davis, (7th Cir.1989), F.2d extor- 890 1373 performance in intent and anoth- conduct prosecution. tion protection may sequence, er loses the the commission of foregoing categori- given be otherwise problem

The the real occurrences, zations, professional which define or misconduct. crime 600; Lee, fit do not into the dichotomies Hampton, 600 F.2d they is that F.2d 617 by the fed- generally followed for decision 320.40 challenged con- Whether eral courts. with Ya courts, commencing The federal (investigatory or pretrial adminis- duct is cert, Goff, selli v. (2nd Cir.), 12 F.2d 396 (suborning, conspir- trative) trial within granted 273 U.S. 677, 101, 47 71 S.Ct. etc.) documents, after trial acy, altering 503, (1926), 48 L.Ed. 835 275 U.S. aff'd category generic not does determine 155, 72 L.Ed. have not S.Ct. 395 or the reason for class of behavior involved prosecution hospitable been malicious in se or ma- malum its incurrence. prosecutors. federal or state suits prohibitum lum function of conduct is was the justification The initial introduced political consequently not considered. quasi-judicial Basic au function involved. failure of Imbler is in re- sociological thority law to be de in American seems reason for behavior sult detach Bradley, 80 335. These result, rived from U.S. responsibility. As a commis- test of cases, prosecution malicious breach of conventional egregious sion of crimes and investigative activity”); and v. pretrial case lice Weathers a time zone is 39. Illustrative of Ebert, 514, Rex, (4th 1974) ("Mak- 753 F.2d at 843-44: F.2d Cir. 505 517 function, judi- ing police a absolutely an arrest is a is immune cert, 975, denied, "intimately one....”), associated" with cial 424 U.S. 96 those activities 1480, presenting (1976). "initiating prosecution a [and] L.Ed.2d Other S.Ct. 47 745 Pachtman, U.S. case." Imbler v. 424 preliminary gather- State's 409, 430-31, courts have held that the 984, 995, 47 L.Ed.2d 128 96 S.Ct. ing blossom into a of evidence (1976). immunity prosecutorial ex Absolute investigatory activity potential prosecution is necessary protect tends no further than immunity. receiving only qualified McSure- a Fitzgerald, See v. 457 those activities. Harlow McClellan, 309, (D.C.Cir. ly v. 697 F.2d 320 811, 2727, 2735, 800, 73 L.Ed.2d U.S. 102 1982). assists, prosecutor who directs or "[A] (1982). Consequently, prosecutor act 396 ing with, participates police in ob- otherwise investigator only qualified im as an has taining prior to an indictment un- evidence 16, munity. See id. 457 U.S. at 811 n. 102 functioning doubtedly is more his investi- Although identifying n. those 811 capacity quasi-judicial gative ca- than in immunity not al absolute is acts entitled to _” Hialeah, City pacities 625 Marrero ways easy, factor "advo the determinative 499, (5th 1980). F.2d 505 Cir. prosecutor’s cacy” main because 412, Texas, 759 F.2d also Crane v. State quasi- one akin to his function and the most cert, Cir.), (5th 766 F.2d 193 modified aff'd denied Joslin, See, e.g., Lerwill v. 712 role. 106 S.Ct. 88 L.Ed.2d Bell, Cir.1983); (10th Gray v. 437 F.2d (1985) (which practice involved of arrest (D.C.Cir.1983), cert. de F.2d 500-02 ing for misdemeanors without issuance of nied, L.Ed.2d U.S. Wilson, (D.C. warrant) Apton v. 506 F.2d 83 Cir.1974). example post-con A converse is the Lanning, F.2d In Atkins v. jail conditions addressed viction treatment Cir.1977), distinguished (10th be- Wahl, Joseph, See also F.2d 1169. prosecutor’s quasi-judicial war- role tween the ranting F.2d 549. immunity, "police-re- and his absolute immunity. work not accorded such lated” reality, Ap- Court of the Second Circuit making this distinction: there cited cases We singular princi- peals seems to have created the Chicago, Hampton City F.2d explained by prosecu- ple variant statements of 1973) (7th (planning evi- raid obtain Cir. regard criminality, torial without activity criminal not covered dence of cert, venality. morality conduct is Prosecutorial denied, immunity), prosecutorial immunity. good example absolved Lee is (1974); mis- Wilson, (D.C.Cir. of a different statement Apton F.2d prosecution so actual no 1974) conduct is absolved harm, (prosecutorial not available foul, criminal misconduct or prose- no whether on a civil claim "focuses when a directing po- not. in the course of cutor's actions

1345 by majority, ment many of which are cited do examination details ordered deter- subject speak to the generally plaintiff’s competency. here mine resulting conspiratorial production presented of rights civil lawsuit was based on invasion perjured and use material secure privacy by press of to the a disclosure of arrest a and continued incarceration of report psychiatric contents. After the ap- paranoia person. known fear innocent pellate qualified immunity, court applied it the suit the text itself is self-evident held that prosecutorial release to the Bauers, opinions. 361 F.2d di 581 psychiatric press reports did not violate rectly prosecution malicious extended the clearly right privacy and, a established immunity damage to the prosecutors consequently, justi- qualified immunity was overruling pri- suits under 1983 its Section question quali- fied. One is what called to contrary Picking Pennsyl decision in v. ty legal provided education this level of 240, Co., reh’g R. F.2d vania 151 denied abysmal ignorance. Surely a freshman Cir.1945). (3rd Generally, F.2d 152 753 school clearly law would know better and Schloss, 876 these cases include F.2d The activity prosecutor so. inwas prosecute; Murphy, not to 849 F.2d light politicking best blatant in contraven- trial; at introduction of evidence Hamilton tion of the of a help- constitutional (7th Cir.1985); Daley, v. 777 F.2d 1207 day being. Perhaps less human a 120 sus- Graddick, (11th 739 F.2d Fullman v. 553 pension from practice of law would Cir.1984); Ybarra v. Reno Thunderbird provided knowledge have a level of (9th F.2d Village, 723 675 Mobile Home deterrence to educating Post, Cir.1984); F.2d Cook v. Houston 616 against this character of misbehavior. (5th Cir.1980); Henzel, 654; 608 791 F.2d cases, In press addition to the release see Hammer, (7th F.2d Heidelberg v. 577 429 Butz, 438 also U.S. 57 Cir.1978); Wallace, 568 F.2d 1176 Prince v. prose- L.Ed.2d excused other limits to (5th Cir.1978); McDonald v. State Illi actually cutorial misconduct are found in Cir.1977); nois, (7th 557 F.2d 596 Conner federal cases. In Lewis some v. Pickett, (5th Cir.1977); v. 552 F.2d 585 Fa (5th Cir.1955), Brautigam, 227 F.2d 124 nale, 866; Rose, 385 F.2d v. 359 Gabbard county jail facility removal (6th Cir.1966); Cole, F.2d 182 v. Sires distance, prison, state mile other (9th Cir.1963); F.2d and Kenney v. plead plaintiff conduct to force the (6th Cir.), Fox, 232 F.2d 288 cert. denied guilty was not determinable on motion to 1 L.Ed.2d were within dismiss whether the acts cert. denied authority scope or autho- L.Ed.2d 66 Robichaud, 351 F.2d rized law. is, however, beyond very There a limit denied the umbrella to actions indistinct even the federal line where tank confining teenager in the drunk courts do the misconduct absolv not throw subsequent to the crime scene in removal immunity. I ing mantle believe this off lawyers in order the absence of her line. beyond would fit State case Hilliard, 465 F.2d secure confession. justifies press by prosecution ments to the court, recognizing after first only qualified immunity as an administra pro- the code of the existence and text of Hendricks, 880 England tive function. responsibilities, refused extend fessional (10th Cir.1989); F.2d 281 Gobel Marico alleged facts: (9th Cir.1989); County, F.2d 1201 pa We hold that factual averments (10th Joslin, F.2d 435 Lerwill v. Cir. above, complaint con- as summarized 506; 1983); Marrero, Hamp F.2d at plain- in a most favorable light sidered ton, compared is 600 F.2d at 633. To be tiff, Attorney charge General (1st the District 827 F.2d 836 Cir. Ryan, Borucki quasi-ju- with acts which were outside his 1987), prosecutor Mi where United States scope beyond the capacity dicial Ryan chael dismissed criminal first integral part constituting “duties charges press held a conference and then willing process.” are not mental We openly he discussed commit- where (D.C.Cir.1982), McClellan, F.2d quasi-judicial to extend the doctrine of immunity complaint charging illegally which the release of ob- to a delib- involved legislative tained to a laboratory of an FBI information state suppression erate immunity committee where absolute was report establishing the innocence of the provided not for activities which included defendant. documents, acquisition initial safe- case, jack- In the on the stains defendant’s keeping contrary injunc- release to an and by argued not et were human blood as the tive order. as prosecution, hog but rather blood con- by jacket disap- Alleged tended defense. The prisoner the direction hold a in a peared custody “dirty, before trial while in state cell that infested with roaches was bugs [plaintiff] given FBI that but not before an examination con- and was no food, defense, during report the water or showers that four which was with- firmed day period,” v. 677 during Moody, trial. Price F.2d prosecution held the (8th Cir.1982) (footnote omitted), 677 was investigation grand jury In a Connecticut subject immunity favoring not to absolute official, plaintiff the a state as Powers prosecutor. the defendant See likewise Cir.1984), Coe, (2nd 728 103 claims F.2d Forsyth, wiretapping F.2d case. 599 complaint injury in the Section 1983 Hampton, F.2d as 600 well advertised “(1) the included leaked information to me- Butz, publicized, 438 followed U.S. at calls, dia, (2) (3) wiretapped telephone his determining 98 at 2898 that no S.Ct. agreement prosecute, an breached not immunity unqualified publicity existed crimes, (4) entrapped him to commit new did, campaigns. Hampton The court how- (5) grand jury.” ap- The and misused the ever, accept a constitutional Imbler immu- pellate granted immunity court defense loss, nity application for falsification and contentions, to the three misuse the prosecution destruction of evidence the jury, the grand agreement not to breach conjunction citing the police with Heidel- held, entrapment, prosecute al- berg, 577 F.2d 429.41 though immunity apply, did not that the illegal relating alleged Wiretap usage claims wire- the district tap during investigation were available and reversed the was administrative gener- granting judicial trial court a and not decision the not cloaked abso summary pros- Rose, if judgment immunity al determine lute Jacobson 592 leaking (9th Cir.1978), F.2d ecutorial of secret information to cert. denied depriva- might media state a on a claim U.S. 61 L.Ed.2d 298 (denied process congressman alleged tion of a fair trial basis due who interest). McSurely attorney deliberately likewise the United States See fore, Reaching absolutely beyond merely performing reefs outer went his offi judicial alleges claimed is found in the cial Beard that Udall duties. caused Judge Mays charge Arden claimed details of conduct of the criminal filed order Merckle in Florida case with a verdict for further the civil suit Udall had filed Crab- on judge behalf, was in favor of reversed tree's and that he filed criminal plaintiff Harper, charges 638 F.2d 848. case knowing charges while were base judge a teaches that even for term, in a Section 1983 prosecutor less. A faces a who conflict there can be conduct which unac- poor position impar to act interest is in as tially a immunity. ceptable without likewise predetermines judge who Beard, date, (although at a later Howard], F.2d proceeding. supra, See Rankin [v. essentially was reversed Beard Ninth (9th Cir.1980), cert. denied [633 F.2d 844 Ashelman, Appeals in Circuit Court of F.2d U.S. 1072). Therefore, assuming allega Beard's ]. true, tions Udall are we conclude prosecutor have caused Where crimi- acting beyond scope Udall charges was of his in order to further a nal to be filed civil involved, authority enjoy and thus does not absolute in which he conduct suit beyond immunity. immunity. absolute reached Beard, (footnote omitted). F.2d at held: activities, However, alleged morality expressed unlike those of Udall’s case did Imbler, performed not last Appeals. were fur in the Ninth Circuit Court of conduct, Ashelman, private purpose. His there F.2d ther Cir.1987), denied 484 information in abuse of cert. leaked false (1988): activi grand jury process stated claim for L.Ed.2d any proper performance ties outside of juror concluded A reasonable could have prosecutor’s job. v. Gold Helstoski major responsibility for the vio (3rd Cir.1977). stein, Obvi 552 F.2d 564 lation of Mairena’s constitutional prosecutors have ously, press releases office, attorney’s lay with the district pro highly not been favored Mairena’s since it issued warrant for tection. proper safeguards. More arrest without in Appeals The Court of Tenth Circuit over, attorney’s it was the office district Rex, deputy that a 753 F.2d 840 concluded responsible advising the oth that was in an attorney assisting district to obtain i.e., clerk, defendants, the sheriff and er beyond involuntary coerced confession was long the warrant for arrest was no that Likewise, assistance Imbler umbrella. required er and should be cancelled. We as a making the arrest is not immunized conclude the district attor therefore that Ebert, prosecutorial function. v. Wethers indi ney has not shown that the evidence (4th Cir.1974), 505 F.2d 514 cert. denied jury’s that the determina cates factual 424 47 L.Ed.2d 745 U.S. damages subject to on the issue was tion (D.C. (1976); Wilson, Apton v. 506 F.2d stand reversal under reasonableness Cir.1974). ard.[42] arbitrary and de- from arrest Freedom appears A differentiated test Jen- among our most cherished tention are (quoting at 567 F.2d 1221-22 United nings, infringement Their has war- liberties. 1302) Rauch, rel. 456 F.2d States ex remedy damages inferred ranted a “a entitled to absolute where itself in cases the Constitution performing his official it ‘while Congress provide has failed to where * * *, court, duties,’ as Bivens v. officer of statute. Six Unknown a[n] duties, if, performance those Agents, Named even (1971). The in- illegal corrupt or he motivated substantial, fringement alleged here is corrupt The intention.” relation physical abuse. carrying overtones while official performing intention illegal upon of the assault individual Elements again an of the court was duties as officer even if rever- liberty remain unredressed criminal, explained in ethical moral not harm into the future is con- beration of terms. expungement such relief as the tained court in Corsican Productions v. of arrest records. (9th Cir.1964), Pitchess, F.2d omitted). (footnote Apton, F.2d at stated: arresting practice for similarly immune from suit [Pjrosecutors not Texas, warrant, Crane State of Act as a matter of simply under the 766 F.2d 193 F.2d as modified aff'd na- wholly regard to the without status (5th Cir.), denied cert. * * * county ture of their conduct. Joseph, 88 L.Ed.2d con- present not did submit advocacy recognized did 795 F.2d 549 had, If court. he tention to the district necessarily acquisition include the not held district had and if the interro investigatory coerced statements complaint insufficient allegations of sitting gation. Likewise not included was rule, appellants under weapons licensing board. on a concealed opportuni- entitled to an would have been realistically found differ Limits that can be amend, pleading hav- responsive no ty to proceeding from the core entiating conduct circumstances, ing filed. these been advocacy conduct is demonstrated (5th adequacy either Foti, not consider the 816 F.2d we will Mairena Via, immunity. 821 F.2d prosecutor conjunctive Robison absolute 42. Conduct of a Cir.1987). seizing (2nd complaint in from a child child abuse proceeding justifying parent a “core” was not * 4 * along allegations they “completely read or as reformulated as now might amend- embodied in com they supplemented principles not at all * * * simply ment. mon law.” decline We apply the standard all state federal Lewis, where F.2d at See also tort actions. of a motion to opinion noted the status ferson stitution. purposes of force the court first violation and N.W.2d Ass’n, automatically cial act compared is “[qualified present prosecuting define how Northern tutional ty for misconduct. These factually 306 the factors involved. quently cited as such acts 1979) and Blanton dismiss afforded motion to authorized State immunity, jurisdiction (Iowa 316 F.2d County, under the arrest cases, although recognizing levels rights dismissing were either The Iowa dismiss, by law.” perjury 1977), conspiracy Cal. are not so confer section 1983 may Blanton, Johnson issue under the state con- morality providing 281 N.W.2d 25 recognized Gartin, state constitution. State’s as state (Minn.App.1989), Bowling could be unconstitutional it cannot be See likewise (9th insufficient cases, Barrick, to violate within public officials and Attorney, or it was constitute an offi- claim, the court condescending Cir.1963). absolution his action does not cases, that Gartin cases do Morris, responsibility Proprietors’ responsibili- 258 N.W.2d from state (Iowa since “[o]n excessive held basis for Breier v. scope are did ethical consti- v. where to To were App. and Jef- The Limits fre- not the to Analysis, Personal Immunity Damages Against his Wolcher, State ignored found alytical and Cal.L.Rev. 189 Rev. 1269 Courts ly be either process noncompliance. be When it shall a written constitution remedial als place without Scholastic conclusion, The idea and life, liberty, against government Bills n for Friesen, Recovering Damages supra, not, Immunities adequately remedies, regulating system designed 40 Constitutional compliance Constitution law, analysis and criticism has field of authoritative sfc that there for subject. states: (1981). Rights 69 Cal.L.Rev. Ark.L.Rev. 741 instance, deprive persons the Courts Historical ^[*] States whatever its property consequence ought the harm caused Supremacy private Under Section 1983: Wolcher, Claims, by the rights tells a Exceptional, ^[*] consideration is like in Their Own to redress ful- Violations, 69 also some law, at without system of individu- state or a s}s Sovereign state that our own. force 314-16, 63 Tex.L. Matasar, Clause: wrongs has no (1987). with may ^[*] due an- in longer thing The one that is no admis- law claims.” court stated Elwood v. was, sible, if it ever is notion that County, N.W.2d 676-77 Rice (Minn.1988) sovereign immunity (quoting bars all claims Creighton, states, 3041):43 of whatever source Instead, litigated. the na- wherever urge qualified immuni [Defendants ture of the and the court where it claim ap 1983 also

ty purposes of Section if important, is heard are not deter- both disagree, to state law claims. We plies minative, criteria, the Court held in as rejecting proposition that federal im Hall, Nevada v. U.S. munity principles Section 1983 also [440 under L.Ed.2d and Maine qualified law. immu ] control state While Thiboutot, origin nity under Section 1983 had its [448 (1980)]. It is more available at now public officials’ defenses law, appropriate has since been than ever reaffirm that common doctrine duty proceedings. Sim- deter a constitutional the institution of criminal 43. The attendant speak Union, duty Mich.App. also should include violation mons v. 636, Credit Telcom upon attendant others who which is 442 N.W.2d 739 responses prosecution in malicious involved

1 n purports The non-firm foundation which jurisdiction share general courts of state duty implanted analysis to enforce federal courts from historical to be n Constitution, recognize Coleman, well considered U.S.C. Sec- consti- duty strongest of all when Congressionally-Mandated tion 1988: A no forum in claimants have other tutional Section Approach to the Construction of rights. their to vindicate which Jaffe, (1986); 1983, 19 Ind.L.Rev. 665 Suits Friesen, supra, Tex.L.Rev. at a Against Governments Officers: right reme- of a state Actions, determined advocate Damage Harv.L.Rev. violation, dy also for state constitutional (1963); Jaffe, Against Suits Governments concludes: Immunity, 77 Sovereign and Officers: suggests practical and the

This Article (1963); Matasar, supra, Harv.L.Rev. of ade reasons for creation oretical 40 Ark.L.Rev. 741. remedies quate state law for bills misconduct, Damage actions as we enhancing state law’s violations: know, have been available hundreds development, compensating theoretical years against wrongdoing officer. plaintiffs, deterring dis deserving liability appeared It is this to Di- through regard of the state constitution cey justify famous formulation responsibility enforced education and * * n law:” “rule of lawbreakers. private legal England equality, “In the idea of Ultimately, legislatures state must subjection or of the universal of all private respond to need for enforce one law administered classes to by creating reme of norms ment Courts, pushed its ordinary has been claims, along with for constitutional dies official, every limit. With us utmost sovereign immunity provi of waivers down from the Prime Minister including full at compensation, sions taxes, of is collector constable punitive torney fees and authorization of responsibility every under the same damages appropriate. Until that when legal justification act without done time, fifty states’ of the courtrooms any other citizen.” appellate judges will be the trial this of testing grounds for new wave important contains an This statement judges federalism. These not-so-new truth, doctrinally, but whether viewed whether, to decide may be the ones it functionally, historically, can be plaintiffs, civil our state bills of least for misleading, inaccurate. seen as and even empty than an flirta rights offer more availability against an The of suit officer tion. given principle of did not flow from Note, Rethinking Sovereign Im- See also “legal rather, as we have equality,” but Bivens, 57 N.Y.U.L.Rev. munity article, After in earlier result shown an in (1982). Compare the exhaustive review citi- protect effort to deliberate Law, Developments Section misuse of author- governmental zen from Federalism, 90 Harv.L.Rev. ity. conclusion, where, is (1977), it said Jaffe, at 215-16 supra, 77 Harv.L.Rev. Congress can and clear that “it seems Dicey, (footnote quoting omitted scope im- personal constrict the should (8th ed. Law the Constitution munities, immu- and eliminate absolute 1915)). governmental bodies.” It enjoyed by nities the Court’s treat- Past weaknesses in the continued existence is as inevitable as however, cases, ment of section 1983 the teach- government of democratic present may pale comparison weak- revealing responsibility Marburg ing of understanding. Its Court’s nesses in the if the individual state government suggest inadequate an decisions to date protect their citizens fails in task current Justices’ grasp past; some depravation, federalism constitutional incomplete an under- premises reflect again responsibility move will once present. standing judiciary. federal Congress academically is whether the writer Eisenberg, 198S: Doctrinal Foun raised Section Empirical responsibilities only 67 Cor if Study, perform dations and would (1982). Beermann, nell L.Rev. responsiveness also free from for violations Approach 1983 with Critical Section per constitutional another Law, 42 Special Attention Sources my malice. son with wilfulness or It is not (1989); Bradford, “Changed Stan.L.Rev. 51 judiciary required view that we in the ' Only a Little”: The Reconstruction Better to is to balance evils. do what Amendments and Nomocratic Consti Imbler, right. Cf. 1787, 24 Wake L.Rev. 573 tution Forest 47 L.Ed.2d 128. Kreimer, (1989); Law in Source of Joslin, recognize that Mr. rather We Rights Light Actions: on Civil Some Old citing mistakenly wrong than statute Section U.Pa.L.Rev. 601 Lerwills, prosecuting might have Muris, Liability & See also Clarkson Civil intentionally maliciously or even done so Officials, 42 Law & Con Government them. Ler- order to harm While the (1978). Society and the temp.Probs. inability to him wills’ sue under section justice delivery could system American true, if this is 1983 unfortunate it is a hope that Professor-Justice Leflar was cost Imbler to so required paid Leflar, right essay, in his Honest Judicial prosecutors that honest do not shrink Opinions, 74 N.W.U.L.Rev. advocacy. Supreme from fearless As the “[ijntellectual honesty when he said [in Imbler, Court stated opinion writing] today more fashionable case, “As is so often the the answer than it once was.” in a must be found balance between

IX. CONCLUSION the evils inevitable either alterna- In this instance it tive. has been pervasive throughout There is a thread end better thought to leave un- panorama wrongs by done redressed the dishon- must, assessing integrity cases which subject than to est officers those who responsibility, self-image mirror of the try duty to to do their the constant jurists. at least some of those It is vari dread of retaliation.” ously going Gregoire, as back 177 stated to immunity is required 579 that so that F.2d 428, 424 96 at (quoting U.S. at 994 not prosecutors honest do shirk from fear Biddle, 579, (2d Gregoire 177 F.2d 581 Lerwill, advocacy. F.2d 435. 712 less Hand, Cir.1949) (Learned J.), cert. de supposition provided right to be This nied, 70 S.Ct. 339 U.S. 94 L.Ed. irresponsible job in order to do the for (1950)). 1363 held the office which the office is demeans Lerwill, F.2d at 441. lawyer insults the holds it. holder and who Despite arguments carefully the ad- discretionary Protection for decisions contrary, myself vanced I do not to the find pure insulation from mali the historical persuaded immunity that absolute civil for prosecution proceedings cious should sure prosecutors necessary policy to the con- is ly prosecutor the honest suffice both principal cerns it is fitted. for which If and the fearless advocate. a level objection governmental that to the claim responsibility required is for the economic civilly liable for civil officers should practicing the lawyer conduct wrongs intentionally against committed cit- physician, one then wonders committed supposed izens chill on vigorous is the public why for the official of either not pursuit public Relocating trust. this professions. Each time that kind both opinion, inquiry applies prosecutors, objec- into claim it the comment is written defendant, Corp., F.Supp. charges against prosecutor miss 44. Omni Intern. documents, (altering repeat- judge appeared grand jury room material testimony, misrepresentations charge prosecutor ing after deliver a further untrue Groh, indict). court); grand jury's failure to People v. 57 A.D.2d 395 N.Y. discussed the Gershman, (1977) (after supra. grand jury generally voted to dis- B. S.2d patterns.45 argument An immuni- variety into a that absolute civil tion reforms ty required explain why only should ab- argue prosecutors all must be Those who policy satisfies con- solute immunity recog absolute civil shielded traditionally cerns advanced. an ex- Such particu claim as more than a nize their no competition give picked planation lar from the be would need to due account choice vigorous prosecution need for tween the for which illustrated com- Hawaiian fairness the law and fundamental mon-law,46 many has for decades intentionally wronged allowing those prosecutors civilly held liable malicious Shepherd, seek redress. Schneider v. upon apparent acts with chill the actions no per Mich. 158 N.W. 182 prosecutors. honest “Public and decent Briggs comparison is found suasive prosecuting protec- are officers entitled to Goodwin, 569 F.2d 10 cert. (D.C.Cir.1977), growing the dis- tion claims out of denied charge good done in faith their duties (1978), prosecutor L.Ed.2d 1133 where though judgment, pri- with erroneous but stand ordered to take the witness was protec- entitled vate individuals are with Barbera v. oath, lied under then against any of such tion of law conduct Smith, cert. Cir.1987), (2nd 836 F.2d 96 reckless, at once malicious officers which is — U.S.-, denied Carden, damaging.” Leong Yau no effort L.Ed.2d 808 where 1916).47 (Hawaii Haw. But even a who, protect critical witness made rejection of the Hawaiian solution to fla- request help, unprotect despite a went grant public power consequently ed murdered. abuse of would and was litigation statutory immunity "does not conduct would extend to unfounded "[H]arassment energies prosecutor’s amounting constituting cause a deflection a crime or actual duties, public possibility malice, and the from his actual fraud willful misconduct.” of exercis shade his decisions instead he would ing Cashen, A.2d at 13 n. 4. required by independence judgment Jersey equated date New case law to has not Imbler, public U.S. at trust.” prosecutorial immunity coun- its danger great at 991. “There is no terpart philosophy there and reflects the power exemp will abuse of be fostered prosecu- in which a indeed circumstances liability, civil for the is at tion from liability will his official tor incur civil restraint im times under wholesome all we conduct. We wish to make it clear that posed being risk of called to account * preferable approach * believe that this is *, criminally or of for official misconduct * * problems involving future civil being on that account *.” ousted office prosecutors this State. The inter- Gershman, Yaselli, supra. F.2d at 404. 12 B.Cf. by recognizing prosecu- est is that best served attorney enjoys prosecuting the same im “The immunity. enjoy only tors a limited form of judge.” munity protects which Gab as that Gallagher, v. N.J.Su- bard, Id. at 13. Zalewski 150 See at rule is F.2d 185. "The 359 1195, 360, (1977). per. 1200-01 designed promote 'principled and 375 A.2d fearless decision-making’ by removing judge’s [and away had backed county attorney’s] that 47.Hawaiian common-law not district ‘fear unsatisfied litigation seventy- charg during intervening litigants hound him with this stance ” Fanale, corruption.’ firmly ing years 385 F.2d at malice to do so. four it has had ”[W]e 554, Pierson, courts, (quoting at 87 386 U.S. S.Ct. at rejected 868 in the federal the view advanced " * * 1218). performing their official *, governmental '[P]rosecutors non-judicial officers officials, non-judi quasi-judicial duties are absolutely [prosecutors] tort immune from vigor be able to functionaries should cial rejection approach actions. This federal unhampered by ously proceed with their tasks predicated desire effectuate on our ” Gartin, litigation.' of unlimited civil the fear maliciously interest of a balance between the Blanton, 258 N.W.2d N.W.2d 30. Accord 281 injured plaintiff good faith offi- 581; Sires, Bauers, F.2d 361 320 at 309. State, 624, 64 647 P.2d cial.” Towse v. 696, Haw. 877; Stoner, (10th 292 F.2d 492 Kostal v. F.2d Kemble, (1982). v. Haw. 701 See Seibel 63 868, Cir.1961), 82 cert. denied 369 516, (1981); Kajiya Department 631 P.2d 173 87, 920, 1032, reh’g 370 U.S. L.Ed.2d denied 221, Haw.App. P.2d 635 Supply, Water of (1962); 8 L.Ed.2d Peckham v. S.Ct. Scanlon, 500 (7th Yamamoto, (1981); Haw.App. Lane v. Cir.1957); 241 F.2d 761 Ken 489; Orso, (1981); 534 P.2d Runnels P.2d 634 ney, F.2d 288. Okamoto, (1974); and P.2d Haw. Kondo, Haw. 522 P.2d protect Medeiros v. Jersey generally pub- New statutes 46. performance duties for the official lic authenticate this 1. Imbler does not immunity the al- make absolute civil behavior; and immunize this conduct nor “policy considerations Because ternative. immunity for certain compel civil which remedy for constitutional vio- 2. A state place them officials governmental [do not] offending Wy- by public officials lation law,” criminal Im- beyond the reach of the in our provided must be oming Constitution bler, 96 S.Ct. at both 424 U.S. at judi- responsibility of the as a basic courts pub- pursuit prosecutor’s of a vigorous government. cial branch a redress for intentional viola- lic trust and would be accommodated tions of that trust MACY, Justice, dissenting. alternatively initially or if a civil suit were immune No one should be I dissent. align with would allowed. This solution intentionally commit- liability from civil incapa- that “we are majority language act, public offi- especially ting a criminal proper- policing prosecutorial abuses ble of uphold has taken an oath cial who presented to this court ly investigated and the laws of the State constitution and Bar, majority that a by Wyoming adopt the rea- Wyoming. agree I with and necessarily would vi- Wyoming prosecutors closing soning remarks articulated oaths rather than their constitutional olate dissenting opinion. Urbigkit’s Justice lawyer.” prosecute another law; may make bad Although great cases that makes

certainly, just a bad case importance real “by reason of

bad law [its] * * *.” of the future shaping the law States, v. United

Northern Securities Co. 400, 24 Holmes, J., dissenting. L.Ed. 679 (Defendant), PENA, Appellant Domingo society, respect A democratic central, dignity of all men for the misuse of

naturally guards against the Wyoming, STATE process. Zeal enforcement the law (Plaintiff). Appellee not in itself an tracking down crime is No. 89-123. judgment. assurance of soberness in law enforcement Disinterestedness Wyoming. Supreme Court disregard cher- prevent does not alone May therefore Experience has ished liberties. Denied Rehearing June pro- must be safeguards counseled dangers the overzea- against the vided despotic. The awful as the

lous as well law cannot of the criminal

instruments single functionary. to a

be entrusted jus- complicated process of criminal different divided into

tice is therefore sepa- responsibility for which

parts, participants in the various

rately vested for its criminal law relies

upon whom the

vindication.

McNabb, at 614. granting the reverse the order

I would relief Cooney’s claim for to dismiss

motion improper arrest unjustified and day incarceration. Error thirty-eight regards is discerned: majority in two notes Id., 424 U.S. at 96 S.Ct. at L.Ed.2d at 135. On certiorari review of generally Courts and commentators dismissal, Supreme the United States agree holding that this structured a func- Court addressed the issue of whether a Saxner, analysis. Cleavinger tional v. prosecutor absolutely immune from civil 193, 201, 496, 501, U.S. 106 S.Ct. 88 L.Ed.2d liability by focusing under on the § adopted This court prosecutor various functions that a serves analysis functional In Blake. Blake this society balance which must exist immunity court extended to a absolute protecting integrity of those between county prosecuting attorney who em- protecting private functions and citizens ployed supervised investigator an Id., prosecutorial abuse. U.S. at records, penitentiary check both court and 421-24, 990-92, 96 S.Ct. at 47 L.Ed.2d at investigated preliminary matters to initiat- review, completing After 138-40. this ing prosecution, presented held: Court prosecution perjury the state’s case of Blake, charges against juror. It remains to delineate the boundaries 651 P.2d noted, holding. Relying at 1104. of our As Court on Imbler and decisions emphasized respon- following case, Appeals that each of this court determined challenged prosecutor’s challenged was an “inte- that the dent’s activities activities gral part judicial process.” intimately judicial were associated with the Appeals’ phase process. In purpose of the Court of focus of the criminal that re- gard, significant upon the functional nature of the activi- this court found it respondent’s prosecution possible ties rather than status was' the ill-fated concerned any rights, privileges, provides: deprivation 4. 42 U.S.C. or § who, immunities secured laws, the Constitution and Every person any under color of stat- ute, ordinance, custom, regulation, usage, party injured or shall be liable to the in an Territory, subjects law, or causes to equity, proper State or action at suit in or other subjected, any United citizen of the States proceeding for redress. jurisdiction person or other within the thereof exception prose- faith absolute by prospective juror, arising is no bad “perjury prosecutorial judicial proceeding failure to disclose cutorial conduct requirements. dire a conviction of that meets the Imbler voir [on examination] view, Imbler, felony.” Id. at 1106. In court’s 424 U.S. at 96 S.Ct. at integrity judicial process Taylor was at Kav L.Ed.2d at See also (2d Cir.1981), performing prosecutor’s anagh, stake in the 640 F.2d Therefore, investigative function. cert. denied sub nom. Barbera v. Schles — -, 1338, 103 singer, investigation do we have suborning (1989)(soliciting and L.Ed.2d 808 pros- involving a criminal the initiation of liability testimony does not create perjured ecution, resulting from prosecution but a func damages conduct perjury. We therefore alleged in-court tionally qualifying for absolute greater judicial find a involvement Willins, Imbler); 617 F.2d under Lee investigation function the usual than denied, (2d Cir.), cert. preparation initiation 165, 66 L.Ed.2d 78 process by filing of a of the criminal coercing (falsifying perjured evidence and complaint and trial. Maine, testimony); Campbell State of Id. at Cir.1986). (1st 787 F.2d analysis requires functional approach proven to be The functional has application cautious because apply be a somewhat difficult standard “[ajbsolute immunity rank flows not from scope cause the limited Imbler Government,’ within the title ‘location Imbler, recognized holding. Court responsibilities but from nature and investi there would be administrative Cleavinger, the individual official.” of 474

Case Details

Case Name: Cooney v. Park County

Court Name: Wyoming Supreme Court

Date Published: Apr 18, 1990

Citation: 792 P.2d 1287

Docket Number: 88-174

Court Abbreviation: Wyo.