Jane Doe v. Francis D. Phillips, Ii, Gerald D. D'amelia, Jr.

(1996), 1212, support Bybyks the claims determine whether timely. rejection misplaced. is The issue seek to enforce arbitration are of this not, here, whether arbi- Mastrobuono passage

tration would be barred

time; timely it whether arbitrators punitive could award

conducted arbitration

damages. significant It that Mastrobuono is “any controversy” interpret lan-

did not herein,

guage and the choice-of-law at issue phrase provision did not contain the critical DOE, Plaintiff-Appellee, Jane significant It “and enforcement.” also is its Appeals that the New York Court denied reargument in Luckie that was motion for PHILLIPS, II, Defendant, Francis D. part upon Supreme based in Court’s Mastrobuono, 85 N.Y.2d decision D’Amelia, Jr., D. Gerald Defendant- (1995). 800, 647 N.E.2d 1308 N.Y.S.2d Appellant. short, law, under New York the timeliness of No. Docket 95-7659. substantially arbitration is different from the resolution of the issues to be arbitrated. Appeals, United States Court of It also well established under New York Circuit. Second courts, arbitrators, law that the decide Argued Jan. 1996. sought whether claims to be arbitrated are See, e.g., limitations of barred time. Pav April Decided 1996. High er & v. Catholic School Wildfoerster Ass’n, 38 N.Y.2d 382 N.Y.S.2d Rowlett, (1976); Caudill,

345 N.E.2d 565 Educ.,

Scott v. Board 47 A.D.2d (1975)(mem.); Indus., Buck N.Y.S.2d Creek Co., Mfg.

Inc. v. Beattie 96 Misc.2d gain

409 N.Y.S.2d 575 It cannot be bringing proceeding,

said that in the instant seeking compliance

PaineWebber was provision in Agreement the Claim governed by

actions to enforce it “shall be

the laws of New York.” Under the circum

stances, following I excerpt find the Judge Kaye’s

Chief concurring opinion in compelling:

Luckie most

I opinion concur in the Court’s and conclu-

sion that because the form arbitration

agreements plainly at issue provide that governs “agreement

New York law added), and its (emphasis enforcement” parties fairly can be understood to agreed that all of New York arbitra-

tion (including provisions law of CPLR

article party 75 which allow a to first liti- court)

gate Statute of Limitations issues in apply.

would

85 N.Y.2d at 623 N.Y.S.2d

I believe that the matter should be re-

manded to the district court with instructions

1206 follow, immunity. For the reasons

fied court. the order of the district we affirm

I. BACKGROUND appeal to this do The facts relevant dispute. Doe and her es- appear to be Doe”) (“John two tranged have husband son, Nich- the older sons. October olas, age lodged an official com- then father, accusing plaint, urging at the of his engaging in acts of oral sex Doe Septem- intercourse with Nicholas sexual year. Doe was ber and October of charged 1992 and was arrested October degree, felony felony rape in the third sodomy degree, and the misde- the third endangering the welfare of a child. meanor of Middletown, Isseks, New York N. Robert assigned to D’Amelia. The case was York, (Alex Smith, Middletown, on the New having After several conversations with brief), Plaintiff-Appellee. for and more than a dozen with John Nicholas (Ha- Ingram, Nyack, New York Phyllis A. reasons, Doe, began, for several D’Amelia Jr., MacCartney, J. David MacCart- rold Y. reliability of the accusations. doubt Jr., MacCartney, MacCartney, Kerrigan ney, abuse, First, to Nicholas’s accounts of the York, MacCartney, Nyack, New on the & D’Amelia “was concerned with some brief), Defendant-Appellant. for (Deposition of D. inconsistencies.” Gerald 20.) (“D’Amelia D’Amelia, Dep.”) An- Jr. KEARSE, JACOBS, and Before: attorney who attend- other assistant district *, Judges. Circuit HEANEY at least one of D’Amelia’s interviews with ed greater than Nicholas had even doubts separate Judge dissents JACOBS credibility. Nicholas’s about opinion. (D’Amelia 19-20.) April Dep. at KEARSE, Judge: information, Circuit D’Amelia filed a re- felony charges against ducing the Doe D’Amelia, Jr., D. an as- Defendant Gerald abuse, of sexual all on misdemeanor counts attorney Orange County, for sistant district originally from the dates dates different York, appeals from an order of New specified Nicholas. District Court for the South- United States Second, D’Amelia had doubts about the Charles L. ern District of New credibility respect to the Brieant, denying of John Doe with Judge, his motion to dismiss because, Doe, inter brought allegations of sexual abuse complaint plaintiff Jane (1994) alia, that he able to damages § John Doe “claimed under 42 U.S.C. going happen in the future declaratory ground that tell what was relief on the dreams,” through claimed sometimes Doe’s First Amendment D’Amelia violated verify ability. FBI would by refusing rights to dismiss certain 16.) (D’Amelia Dep. at D’Amelia was unable to her charges against her unless she swore Doe agent FBI named John appeal, in church. On to locate the innocence on a bible people predicting about principally that the dis- and had “doubts D’Amelia contends (D’Amelia Dep. at through dreams.” granted motion future trict court should have 17.) John Doe’s ve- D’Amelia also doubted summary judgment based on his defenses himself claimed to quali- racity because John Doe of absolute * by designation. Heaney, sitting Honorable Gerald W. of the United Circuit, Eighth Appeals States Court of for the alleged A. witnessed one instance Doe’s To'have allegations [Doe] by swearing of Nicholas but had not contem- sexual abuse the bible that she never (Id.) complained. poraneously had sexual contact with her son. church, Q. In the correct? Further, D’Amelia stated Nicholas Yes, A. in the church. make an immediate [com- himself “did not (D’Amelia plaint] alleged 55.) abuse nor were his after the Dep. at D’Amelia testified Eather, allegations volunteered. the child’s that he told counsel that Doe did not have to allegations against his mother were made go through process, with this but that if she only had ‘visions’ not, after his father had that the did the criminal charges against her sexually child had been abused the moth- Further, would not day. be dismissed that er”; allegations and Nicholas’s made gave D’Amelia no indication if that Doe did only prodded father had “[t]he after son proceed not to swear to her innocence on in for a total a car and church of about Church, bible in the charges would be (D’Ameliaunpaginated three hours.” affida- (D’Ame- subsequent dismissed at some time (“D’Amelia Affi”), vit 53); rather, dated June Dep. lia at discussing without (“JA”) 137.) Appendix Joint any possibilities, other suggested D’Amelia “if happen this didn’t on day,” Doe throughout. Doe maintained her innocence “going may would be to trial where she Department A case Social Services worker (D’Amelia acquitted” been convicted or Dep. investigation an of the conducted sexual 59). charges attempted abuse to determine Following exchange, this Doe and D’Ame- allegations or not the were truthful. and, lia entered the Church chapel a small social to worker declined validate the area, proceeded ceremony. with the Also allegations. began D’Amelia to lack confi- present attorney, investigator were Doe’s an against charges dence that the Doe could be attorney’s office, Doe, from the district John (D’Ame- proven a reasonable doubt. Nicholas, son, Doe’s other who was three 44.) Dep. lia years Nicholas, younger than Doe’s mother April Toward the end of John Doe sister, Monsignor Church, proposed charges to D’Amelia that be perhaps pastor the assistant as well. With Doe, if congrega- dismissed member of the holding reciting D’Amelia the bible and (the tion of a local Koman Catholic church repeat, oath that Doe was to “Church”), place would her hand on a bible in [p]laintiff placed then her hand [the] on Church and swear she had not sexu- “I, Doe, Bible and stated: Jane swear on ally Threatening abused her son. that he any this Bible that I did not have form of cooperate prosecution, would not in the John my sexual contact with son Nicholas on preferred Doe stated “that he that the mat- occasion, God,” help so me ter be resolved the law of God rather than (D’Amelia 139). Affi,JA (D’Amelia 137.) Affi., the law of man.” JA thereafter, Immediately to went consulting After with several other assis- local court in charges which the criminal attorneys, tant district D’Amelia communi- pending charges and had the dismissed. proposition attorney. cated this to Doe’s signed John Doe and Nicholas written forms Doe, charges who continued to consenting to the dismissal consideration against her, agreed appear at the Church Church; for Doe’s oath in the the forms May because she wanted to have “put stated that John Doe and Nicholas had proceedings the criminal concluded. D’Ame- God, [their] trust the law of rather than testified, however, lia that when reached the laws of man.” morning May the Church on the Doe’s September Doe commenced the attorney indicated that Doe had present against Orange action D’Amelia and go through some reluctance to with what County Attorney Phillips District Francis D. planned. we had alia, II, alleging, inter that D’Amelia’s con- Q. you planned And what had practice was— duct constituted a coerced clergy- the back of the church and another Clause of of the Establishment

in violation Amendment, seeking damages may present. man also have been First declaratory judgment. The claim and a Tr. 21. The court stated that light Phillips was later withdrawn against ... does as a matter of law personal had had no that he of evidence authority” “any claim of not have colorable pertinent in the events. involvement prosecution continued to threaten discovery, Following D’Amelia moved charges criminal unless a defendant sub- against him for failure to the claim dismiss ceremony prescribed religious mits to a grant- claim on which relief could be state a inno- substantiate her contention that she’s voluntarily ed, en- contending that Doe had cent. bargain for dismissal of the tered into the Tr. 20. exchange swearing charges rejected D’Amelia’s The district also in the and hence could her innocence Church theory qualified im- that he was entitled in viola- claim that she had been coerced munity on the basis of his consultation with rights. her constitutional He moved tion of attorneys in other assistant district several alternatively summary judgment, con- office, proposed none of whom saw the (a) making agreement for tending ceremony inappropriate an condition. charges was a dismissal Noting range that “in a wide of contexts the function, thus entitled to and he was absolute Supreme consistently prohibited has Court (b) in immunity, and that since he had acted religious government coercion of actions and good faith and after consultation believed speech, particularly speech in connection colleagues of his that there was with several belief,” with Tr. the district conditioning dismissal on a problem no “any person, court concluded that reasonable ceremony, at church he was entitled to least particularly prosecutor reasonable immunity. qualified lawyer, fully trained as a would be aware of bench, ruling In a June 1995 from the right govern- the of a citizen to be free from court denied D’Amelia’s motions. the district exercise,” Tr. mental coercion if Noting “highly that it doubtful a trier Thus, Doe had not able to 22-23. while been truly find voluntariness” in of fact could one, point present to a case similar the ceremony participation in the Church Doe’s “absolutely court reasoned that it was clear (“Tr.”), (Hearing Transcript, 1995 June allegedly compelled on this record that the 25), question court ruled that that re- speech religious, ... this case was on the merits of Doe’s claim. mained for trial that no official could believe for reasonable for sum- The court denied D’Amelia’smotion forcing one moment an individual to mary judgment because it concluded as engage religious ceremony in a church it, that, on the facts before matter of law comports Tr. with the First Amendment.” to either absolute D’Amelia was not entitled 24. immunity. qualified or summary judgment D’Amelia’s motion rejected the claim of absolute denied, appeal was thus and this followed. immunity, compulsion of reasoning that the Forsyth, generally Mitchell v. 472 U.S. See participation religious ceremony is not a 511, 530, 105 2806, 2817, S.Ct. 86 L.Ed.2d beyond prose- prosecutorial function and is (district (1985) court’s denial of a defense of jurisdiction. cutor’s The court noted immunity, it qualified to the extent that turns procedure [con- as a matter of law law, immediately appeal on an issue of is was, fact, religious, D’Amelia] ducted 731, 743, able); Fitzgerald, Nixon v. 457 U.S. church as it occurred in a Roman Catholic (1982) 2690, 2697, 73 L.Ed.2d 349 prosecutor the direction of the and the (same immunity). re absolute plaintiff required to swear her inno- pursuant cence on oath a[n] the Bible II. DISCUSSION ending help with the words: so me God. that the dis- ceremony pastor appeal, D’Amelia contends During the On misapplied govern- the standards priest allegedly present standing in trict court immunity. qualified part We those ing prosecutor’s absolute and actions are of a tradi functions, see, disagree. e.g., tional County Pinaud v. (2d Suffolk, 52 F.3d 1147-48 Cir. Immunity A. Absolute 1995); City Hill v. New 45 F.3d at 661-62, [they] closely “whether are asso of absolute im- support of his defense judicial process,” ciated with the Burns v. argues munity, principally that the Reed, 500 U.S. chargés against dismissal of the Doe ex- “ques The ultimate change participation pro- for her in church tion ... prosecutors scope ceedings squarely fell within the of his carried their establishing burden of disagree. prosecutorial duties. We functioning they” ‘advocates’ when that, It is of course well established al engaged in challenged Buckley conduct. though preserve § not on its 1983 does face Fitzsimmons, 273, 113 at U.S. immunities, common-law traditional “Con If challenged conduct either is not abrogate § gress did not intend 1983 to im see, prosecutor, a traditional function of a history grounded munities and rea well 275-78, 113 (hold e.g., id. at S.Ct. at 2617-18 Fitzsimmons, Buckley son.” ing press conference not a func 2606, 2612-13, 125 268, 113 S.Ct. L.Ed.2d 209 tion), part or is not of his adversarial func (internal omitted). (1993) quotation marks tion, see, Reed, e.g., Burns v. U.S. 495- in These traditional common-law immunities (for example, S.Ct. at 1944-45 advis clude a ing police permissibility investigatory damages arising prosecuto- claims for out of method), is not entitled to “intimately rial duties are associated An official also has no judicial phase pro of .the criminal when he has acted in the Pachtman, cess.” Imbler jurisdiction.” “clear absence of all Stump v. (1976). 430, 96 47 L.Ed.2d S.Ct. 128 Sparkman, 1099, 435 U.S. immunity may gen While absolute “leave the 1105, (1978) (internal 55 quota L.Ed.2d 331 uinely wronged ... without civil redress omitted). tion marks against prosecutor a whose malicious or dis deprived honest action” has them of their framework, prosecutor Within this a Imbler, rights, 427, constitutional 424 at U.S. immunity has absolute from a claim for dam 993, 96 at S.Ct. considerations such as the see, ages commencing prosecution, e.g., for a judicial preserve integrity need “to the Pachtman, 431, Imbler v. 424 at 96 U.S. process” public prosecutor and to allow “a- (prosecutor absolutely at S.Ct. 995 immune zealously perform prosecutorial ... the [to] damages “initiating prosecution”); for a office,” City duties of the Hill v. New of Abrams, (2d 358, Barr v. 810 F.2d 362 Cir. York, 653, (2d Cir.1995), require 45 F.3d 656 1987) (absolute immunity filing to extends prosecutor liability that the be shielded from procuring criminal information and arrest damages respect performed for to acts warrant), performance as well as for his of scope pursuing within the of his duties when tasks as an advocate the conduct of the prosecution. a criminal see, prosecution, e.g., Dory Ryan, v. 25 F.3d (2d Cir.1994) 81, determining prosecu (prosecutor absolutely In whether a 83 enjoys immunity against any damages tor immune from on claim that particular damages, conspired present claim for the courts are he to false evidence at trial). Further, apply approach,” examining prosecu to a “functional since the performed, respect any “the nature of the function not tion-initiation decision with identity performed given charge proposition, the of the actor who it.” is an we either-or Fitzsimmons, 269, 113 Buckley recognized prosecutor 509 U.S. at have that a will be (internal quotation absolutely damages at S.Ct. 2613 marks immune from a claim for omit ted). Thus, See, prosecutor prosecute. e.g., “the actions of a are for a decision not to (2d Bouse, absolutely merely not immune because Schloss v. 876 F.2d 290-91 Cir.1989) (discussed below); by prosecutor.” Ying Jing performed are a Id. at Gan (2d inquire City 113 S.Ct. at 2615. We are to New 996 F.2d 531 act, Cir.1993) pect’s performing a is absolutely immune for a demanded (prosecutor proceeding institute criminal to look to nature of the conduct that was deciding not to “the suspect not to advising police allegedly prosecutorial arrest the thus intertwined with immunity if charges). decision beyond prosecu- plainly the the demand was approach, we Using required functional jurisdiction.” Id. at 291-92. If tor’s immunity recognized that absolute also “ prosecutor ‘without has acted colorable agreement forgo to a extends ” authority1 impose claim of the condition exchange types prosecution in certain question, (quoting id. at 291 Barr v. Taylor accused. In concessions Abrams, 361), F.2d at his conduct is (2d Cir.1981), F.2d Kavanagh, 640 protected by absolute plaintiff brought a suit for example, ground prior that in crimi- damages on the a case, present intertwined prosecutor misrepre- proceeding nal had conduct demand for a oath was the him, inducing plead him to facts to sented on a bible in church. It is well a settled that charges; we that the guilty to certain ruled government authority a has no official prosecutor because had act, require a for the Establishment plea bargaining, prose- involved his conduct Amendment, Clause of the First which is Bouse, function. Schloss v. cutorial applicable through to the states Four 292-93, plaintiffs damages sought F.2d at Amendment, People teenth see ex rel. McCol them, required prosecutor follow- because Education, lum v. Board arrest, ing to execute in favor their releases 210-11, 464-65, L.Ed. 649 municipal entities in to ob- various order (1948), provides “Congress shall make prosecute. Noting agreement tain not to respecting no law an establishment of reli that “the demand for releases and the threat gion,” amend. I. Under the First U.S. Const. interdependent,” prosecute were id. Amendment, that, dispute “[i]t we concluded that the must minimum, guarantees that the Constitution made be understood to have government may anyone not coerce to ... ” decision, one, albeit a conditional that the participate religion or its exercise.... plea demand for the releases was akin to a 577, 587, 112 Weisman, Lee v. bargain. held that absolute We 2649, 2655, 120 L.Ed.2d 467 actions, regardless to his of mo- attached Religion Amendment’s First Claus- releases, securing tivation because the es and religious mean that beliefs bargain negotiation plea of a act within is an expression precious too are be either prosecutor’s jurisdiction judicial a as a offi- proscribed prescribed by the or State. cer. The design pres- of the Constitution is that however, concluding, emphasized In so we ervation transmission of and be- that “we confronted a de- worship responsibility [we]re with liefs a and a foreign that [wa]s mand private choice to the sphere, committed office,” expressly rejected id. at and we promised pursue which itself is freedom any notion forgotten that It must not be mission. then, given concern must be that while prosecutor may impunity

that with granted objec- protection define the to an couple prosecution a threat of all with nonbeliever, dissenting tor or a demands, these same example, manner of demands protect religion gov- Clauses exist to from government for bribes or sexual favors. A ernment interference. official does not have absolute “manifestly palpably for acts that are or 589, 112 Epper Id. at at 2656. See also authority,” his performed Arkansas, 97, 104, son v. 393 U.S. 89 S.Ct. jurisdiction,’” all “‘clear absence of (1968) (“The 21 L.Ed.2d 228 First that, governmental id. at 291. to Amendment mandates neutral We stated order religion, ity religion determine be whether a has lost his between (footnote nonreligion.” shield of immunity by making religion tween omitted)); v. generally Lemon Kurtz- decision conditional on the sus- see 2105, 2111, 602, 613, signed man, consent forms stated 91 S.Ct. (Establishment (1971) God, “put Clause had trust the law of [their] 29 L.Ed.2d alia, govern- “an excessive than the of man.” The district prohibits, inter rather laws (internal religion” entanglement properly ment court ruled that D’Amelia had no omitted)). quotation jurisdiction marks qua prosecutor claim of colorable to enforce the laws not of man of but God. standards, the district Under these ruled, given undisputed correctly Qualified Immunity B. himself the facts to which D’Amelia facts and attested, conduct was not that D’Amelia’s support qualified of his defense of im- immunity because his protected alia, munity, argues, D’Amelia inter that he Doe swear to her innocence on demand that any clearly did not violate consti- established manifestly beyond his in church was a bible rights colleagues tutional because he and his rejeet D’Amelia’s contention authority. We holding requiring knew of no ease an 7,1993 ceremony May to which Doe that the accused to swear to her innocence on a bible swearing subjected analogous to the impermissible. reject in church was We judicial proceedings. In the of witnesses substantially contentions for the reasons stat- latter, pres is recited in the a witness’s oath ed the district court. authority generally in a ence of a secular may enjoy Government officials Further, setting. in a federal nonreligious privilege qualified immunity of always judicial proceeding, witness has damages arising performance out of their nonreligious affirma option giving discretionary long official functions so to tell the truth tion of her commitment clearly their conduct “does not violate estab swearing to a divine than on a bible or rather statutory rights lished or constitutional 43(d) See, (permit Being. e.g., Fed.R.Civ.P. person which a reasonable would have oath); ting instead of Fed. affirmation Fitzgerald, Harlow known.” 6(c) (same); (giv R.Evid. 603 Fed.R.Crim.P. 73 L.Ed.2d jury foreperson power to adminis ing grand (1982); Ying Jing City see also Gan affirmations”); 28 U.S.C. ter oaths “and In order to New 996 F.2d at 532-33. (1994) (generally permitting § affirma established, clearly the “contours of the be law). of oaths under federal tions instead sufficiently right must be clear that reason contrast, May plain it is that what he is able officialwould understand swearing by D’Amelia was a reli- conducted right.” doing violates that Anderson proceeding place took gious event. The Creighton, 483 U.S. church, priest present. with at least one To determine required place Doe to her hand on clearly right defined at the oath, whose content was a bible. And acted, a court should time the defendant D’Amelia, required and which he devised consider: him, ended with the repeat Doe to after (1) right question in was de- whether the help The district court phrase “so me God.” (2) specificity”; fined with “reasonable doing, in correctly ruled that so D’Amelia Supreme the decisional law the whether only patently are performed acts that sup- applicable circuit court Court and the by government officials the Con- forbidden of question; in port right of the the existence distinctly outside the stitution but also are (3) preexisting law a and whether under prosecutor. realm of a official would reasonable defendant religious act demanded The nature of the were un- understood that his or her acts emphasized by impetus of Doe was the lawful. ceremony. informed D’Amelia John Doe City New 996 F.2d Ying Jing Gan v. charges to preferred that John Doe have the omitted). (internal quotation marks at 532 against the law of God Doe “resolved (D’AmeliaAff., to be right of an individual not The than the law of man.” rather ceremony 137.) religious in participate to a consenting in to the dismissal forced JA And established, clearly as is demonstrated was charges, John Doe and Nicholas of the jority’s in discussed in Part II.A. decision Part II.A to authorities by the correctly immunity. ruled district above. right so well established that that that, agree majority I in with the deter particularly rea- “any person, reasonable mining prosecutor a to is entitled lawyer, as a prosecutor trained sonable immunity, we must take a “function right fully of the of a citizen be aware

would approach” al that examines whether governmental coercion of to be free from prosecutor’s “intimately actions were associ exercise,” 22-23; Tr. it was judicial phase criminal ated with the “absolutely on this record that the al- clear Pachtman, process.” Imbler v. 424 U.S. speech in this case was legedly compelled 984, 995, 96 S.Ct. 47 L.Ed.2d 128 religious[;] that no reasonable official Commencing prosecution prose- a is one such forcing an for one moment that could believe function, 424-25, cutorial id. at 96 S.Ct. ceremony engage individual to 992-93, and, logic, “as a matter of comports with the First Amend- a church protect must also ment,” Tr. 24. damages from suits based on his decision not Bouse, prosecute.” Schloss v. 876 F.2d Though D’Amelia contends that Doe (2d Cir.1989). recognize I that ab not in fact “forced” to swear to her prose solute does not extend a Church, innocence she did so who, dismissing cutor as a condition of volition, we, court, of her own like the district charges, makes demand on the defendant skeptical light depo are of D’Amelia’sown foreign prosecutor’s that “is to the office.” testimony. sition Even a coercive “subtle majority Id. 292. The holds that pressure” government engage official to imposed condition here D’Amelia—that religious activity may violate the First Doe swear her innocence on a Bible in a Amendment, Weisman, see Lee v. 505 U.S. at unprotected governing church —is under the 112 S.Ct. at testi D’Amelia’s “manifestly pal standards because it was or mony only reveals that alternatives he pably authority,” Spalding v. Vi offered Doe swear on bible las, 483, 498, 631, 637, 161 U.S. charges go Church or to have the (1896), performed L.Ed. 780 in the “clear trial. jurisdiction.” absence of all Stump Spark any event, question of whether man, religious ceremony Doe’s submission to the (1978) (internal quotation voluntary goes to the merits of her omitted). marks and citation I from dissent claim, not to D’Amelia’sentitlement to immu- (i) holding because D’Amelia’s demand nity. The ultimate resolution of the volun- was intertwined -witha decision jury tariness issue remains for the as trier of (to not) (ii) prosecute or an entailed act fact. (the eliciting of a statement under oath on subject prosecution) that was with jurisdiction prose D’Amelia’srole and as a CONCLUSION demonstrably cutor. This is sufficient to in argu- We have considered all of D’Amelia’s sulate civil under the appeal ments on this and have found them to apply authorities that the doctrine abso be without merit. The order of the district lute court denying summary judg- his motion for “foreign act Whether dismissing ment complaint immunity the on depend the office” does not grounds is affirmed. reprehensible, inappropriate the unethical or alleged- elements of that if that act act —even JACOBS, Judge, concurring Circuit ly plaintiffs rights. violates the constitutional part, dissenting part: Rather, immunity “absolute extends to those acts, courtroom, I concur in majority’s the of in or out of the discussion qualified immunity prosecu- opin- Part II.B of the ‘which occur in the course of [the ” ion, but I respectfully from an tors’s] dissent the ma- role as advocate for the State.’

1213 1139, immunity Suffolk, 52 F.3d Courts allow absolute even County Pinaud v. of Cir.1995) (2d Buckley v. Fitz (quoting prosecutor the 1148 where allows the decision to 2606, 273, simmons, 259, prosecute depend to on conduct the defen- (1993)). 2615, prosecu A 125 L.Ed.2d 209 is, strictly speaking, prose- dant that not the act, participating in a wrongful such as tor’s Schloss, In cutor’s business. the decision to evidence, conspiracy manufacture “is cer to forgo prosecution depend upon was made to tainly something properly that is within putative liability the defendants’ release from imma prosecutor,” role of a but “is municipalities police officers who terial, immunity to attaches [the] because allegedly arrested and detained them in vio- function, not to the manner in which he rights. lation of their constitutional 876 F.2d 81, Dory Ryan, v. 25 F.3d 83 performed it.” prosecutor at 289. We held that (2d Cir.1994) (internal quotation marks and immunity entitled to absolute because the omitted). citation The absolute character prosecute demand on to which decision immunity “protects pros is that it absolute depended plea in the nature of a bar- virtually liability § all ecutor from 1983 gain, plea bargains foreign are not to the acts, motivation, regardless of associated prosecutor. office Id. at 291. See also Dory, as an advocate.” 25 with his function (2d 450, Taylor Kavanagh, 640 F.2d 453 short, immunity absolute F.3d Cir.1981) (“a prosecutor’s activities prosecutorial insulates misconduct —however plea bargaining protection context merit long outrageous misconduct —so immunity”). of absolute Other circuits have prosecutorial. granted prosecutors to approach taken the functional to We have Goldsmith, similar cases. See Mendenhall v. immunity in contexts. the issue of various (7th Cir.) 685, (prosecutor alleg- 59 F.3d Dory, allegedly participat who First, edly plaintiffs violated Fourth and conspiracy present to false evidence ed rights by conditioning Fifth Amendment dis- immune, absolutely at trial was held to be upon plain- missal of civil forfeiture action “professional evalua F.3d at because the agreement property tiffs not to use real appropriate tion of the evidence — use”), denied, U.S. -, an “adult cert. at trial” are preparation presentation for its (1995); Pfeif Buckley, 509 prosecutorial acts. Co., Fire Ins. 929 F.2d fer Hartford City at 2615. See also Brodnicki v. (10th Cir.1991) (prosecutors allegedly Cir.1996) (8th Omaha, 75 F.3d plaintiffs rights violated constitutional (prosecutor allegedly plaintiffs violated who threatening charges against to file criminal by examining right process to due evidence plaintiff stopped practicing unless he medi discussing charges with prior to trial and McClain, cine); Arnold v. 926 F.2d im counsel entitled to absolute defense (10th Cir.1991) (prosecutor allegedly violated munity). Similarly, granted in Pinaud we plaintiffs Fourth and Fifth Amendment prosecutors alleg who job rights by compelling resign him from rights edly plaintiffs violated the under the charge); perjury to avoid a McGruder Fourth, Fifth, Eighth Sixth and Amendments (5th Necaise, 733 F.2d 1147-48 Cir. by: plain seeking improperly to increase the 1984) plain (prosecutors allegedly violated bail; making representations false tiffs “ right equal’ access to the tiffs to ‘free and prompt plea agreement, and then breach threatening pursue criminal courts” manufacturing a bail ing agreement; plaintiff civil ac charges unless dismissed charge; making misrepresentations jumping tion). cases, alleged bad In each of these Prisons; unnecessarily to the Bureau of perversion act was a county state transferring plaintiff role; prosecutor was entitled to but each jail. alleged All 52 F.3d at 1149. of these immunity from civil because acts, unethical, deviant, while and violative prosecutorial. itself was the role plaintiffs’ rights, constitutional (whose way corrupt conduct was no presenta “components of the initiation and immoral) protected in the same should be pro prosecution, tion of a and therefore way by immunity.” for the same reason. tected absolute Id. Sehloss, forgo inquiry was “immaterial.” 25 F.3d at D’Amelia’s decision to

inAs Pinaud, depend upon a con it was made to we did not ask whether prosecution give required Doe to a prosecutorial dition. That condition was a function to dissemble and Sehloss, con oath. The statement charges. statement under And in we confect false charges pending. then procuring cerned the criminal did ask whether releases coop complainants willingness The prosecutorial was a act. In each civil proceedings in the criminal de cases, erate further of these we asked whether the under- Eliciting such pended on that statement. lying prosecutorial conduct was related to the willing suspect pend in a from a statements granted immunity function —and if absolute activity foreign ing matter is not an was, it whether or not the misconduct was Buckley, prosecutor. of a See to the office By egregious. focusing on the nature of the (“acts at 113 S.Ct. at 2615 case, majority opinion in misconduct this by prosecutor a for preparing undertaken erroneously qualifies immunity.1 absolute judicial proceedings or for the initiation may Although prosecutors set conditions immunity). trial” are entitled absolute ending prosecution enjoy a absolute —and “[preparation, both for the That is because immunity doing agree ma so wdth the —I process initiation of the criminal a jority that this freedom has its limits. Un trial, reviewing, may require obtaining, Sehloss, by der we determine those limits Imbler, evidence,” evaluating U.S. looking to the “nature of the conduct that 33, including at 431 n. 96 S.Ct. at 996 n. allegedly intertwined” with the decision alleged statements made witnesses or not, prosecute or im “and absolute Therefore, view, perpetrators. my we munity plainly beyond if the demand was grant must be jurisdiction,” Schloss, prosecutor’s 876 F.2d conduct, inappropriate, cause while “oc 291-92, “manifestly at or palpably curred] the course of his role as an advo authority.” Spalding, 161 U.S. at Buckley, cate for the State.” gives examples S.Ct. at 637. Sehloss 273, 113 S.Ct. at 2615. of misconduct that would be unsheltered majority opinion impro- The focuses on the immunity: a demand for a bribe priety conduct rather for sexual favors. 876 F.2d at 291. These improper than on whether that conduct was purely per acts of misconduct—which serve with a intertwined function. alloy public sonal interests without an of a majority poses question The thus a to which function —differ in kind from the misconduct compelling there can be one answer: Is a protected participate “religious defendant to cere- performing There is a difference between mony” prosecutorial inqui- a function? That office, disgracefully, one’s however and offer however, ry, generic conflates a function of a ing purely personal to sell it for a benefit.2 oath) prosecutor (taking a statement under aspect majority with the prop- that conduct which is The rests its decision on the alleged (taking government prosecutor to be unconstitutional osition that a “has no etc.). church, Bible, authority require Maj. statement on a That act.” approach employed Op. is not we have at 1210. Under Establishment Amendment, previous Dory, cases. we did not ask Clause of the First that is un- However, suborning perjury “properly doubtedly true. to characterize a prosecutor”; “religious begs ques- within the role of we held that Doe’s oath as a act” majority opinion emphasizes that the oath because he attests to what we would otherwise subject "undisputed be bound to assume. in church is the facts ... attested_” Maj. to which D'Amelia himself Op. at 1211. But this makes no difference. proselytize 2. A who used his office to ques- Whether D’Ameliahas attested to the act in religion particular could be viewed as obtain- not, Here, however, tion or we are bound to assume it at the ing purely personal benefit. summary judgment stage, church, as we do in other oath was taken own the suggestion in Doe’s cases, son, plaintiff's allega- spouse because we look at the of her and there is no- her; light expressed tions in a most but we favorable indication that D’Amelia had or strip slightest preference. should not D’Amelia of absolute sectarian secular, God, prose- “put trust in the law of [their] the act had rather of whether tion purpose prosecutorial they promised The than the purpose. laws of man” when cutorial commit testify against ascertain whether Doe that not here was to would Doe if she complainants and whether the ted the crime Although took the oath. the Establishment prosecution. in the aid cooperate would prohibits government Clause officials from Doe to re purpose, D’Amelia asked of that compelling participate citizens to Doe, “I, I cite, swear on this Bible that Jane exercises, agree I majority cannot with the any of sexual contact with not have form did D’Amelia, asking Doe to take the oath occasion, any help my so me son Nicholas church, in the undertook to enforce “the laws every are taken statements God.” Similar (a may not of man but of locution God” day in and state courtrooms. As the federal suggest overlap). Maj. Op. there is no stresses, majority a witness federal court performed prosecutorial 1211. D’Amelia averring as to the option has the now manner, role in an unusual faced as he was testimony by nonreligious veracity of her by strange charge circumstances: a criminal 43(d); Fed.R.Civ.P. Fed. affirmation. See corroborate; that is difficult to a domestic But, conversely, may an affiant R.Evid. 603. (often dispute, in which deference excessive Bible, may end with choose to swear on a deference) given willingness is to the of fami- help “so me God.” essence words ly cooperate; complainants members to oath is the invocation of God definition willing possibly who were to withdraw a delu- inspires that invocation as witness. While charge sional if their wife and mother took awe, thereby convert oath is witness’s family’s an oath church. D’Ameliahad “religious act” or ritual that sub ed into a fully reason to think that that oath would purpose proceed sumes the secular complainants, serve the interests of the ings. defendant, community prosecuto- and the Naturally, religious feeling heightened Doe, rial office. As to D’Amelia’s conduct church; an oath is taken in a but that when spared her the kind of ordeal and humiliation keep serving the oath from does not unjustly persons accused of child moles- secular, function it fulfills in endure, routinely tation and from which ac- Leonardo, settings. Knapp other quittal is often an ineffective deliverance. — (2d denied, 170, 177 Cir.), cert. F.3d U.S. I Because believe that D’Amelia’s actions -, (1995), prose- functions as a were entwined with his petition the denial of a habeas we affirmed cutor, I would hold that he is entitled to trial filed a defendant whose murder conducted in a church hall while the Catholic County repair. Otsego Courthouse was under out, pointed premises

As the dissent “ ‘holy pictures’ contained and other

artifacts, necessarily including but not limit along path to a crucifix from the ed FEINS, Plaintiff-Appellant, Beatrice J. jury makeshift courtroom to the room.” Id. J., (Oakes, dissenting). Although at 181 this emphasized undoubtedly that “it Court EXCHANGE, AMERICAN STOCK there,

imprudent” to conduct the trial we INC., Defendant-Appellee. quoted appellate the view state No. Docket 95-7304. “[ejven traditional courtrooms are not Appeals, United States Court religious symbols and artifacts and devoid Second Circuit. jurors traditionally both and witnesses are ” phrase help you sworn with the ‘so God.’ Id. Argued 1995. Oct. (quoting People Knapp, 113 A.D.2d at 177 April Submitted (3d Dep’t 495 N.Y.S.2d 24, 1996. April Decided denied, 1985), cert. (1986)).

158, L.Ed.2d 97 out, majority opinion points John

As the they preferred

and Nicholas Doe stated that

Case Details

Case Name: Jane Doe v. Francis D. Phillips, Ii, Gerald D. D'amelia, Jr.

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 22, 1996

Citation: 81 F.3d 1204

Docket Number: 870, Docket 95-7659

Court Abbreviation: 2d Cir.