*1
pleadings,
findings
verdict or
and entire
companion
in
case.
lant were resolved
applicable
policies
record in view of
multiple
issued
statutes.
It was determined
presumed
pyramided
entering
until in- will
the court in
insured
judgment
damages,
judg-
intended to render a valid
fully
for his
sured is
indemnified
presented.
insur- ment
the issues
Filtsch v.
to sue” “other
and the ‘‘consent
Sipe,
repugnant
(1947);
198 Okl.
port position, that it was error its in pleadings filed
trial to admit the against motorist the uninsured judgment joint obtained construe the
Jeremy and Richard Keel. judgment provided that terms of the
The Keel, through their Jeremy and Richard POWELL, Roy Petitioner, B. friend, as next recover the sum mother $12,000.00 interest the uninsured from SEAY, Judge Frank H. District of the Dis motorist, $13,017.88. pleadings or trict Court of Seminole Division, Oklahoma, Respondent. case the uninsured motor- each suffered ist admitted to show were 48856. No. $6,000.00. injuries in amount of Court Oklahoma. It is MFA that con- contended Feb. 1976. $10,000.00 per recovery
tract limited Supplemental Opinion Rehearing. person possibility and that existed July the con- to one exceed person. tract limitation for each plausible convincing
A but not ar unsupported by
gument the brief citation is not to overcome sufficient presumption of the correctness favor judgment of the trial court. Allen Nat’l Bank & Trust Musko First Co. of 631, 67
gee, (1937). P.2d long has been law settled ambigu or
Oklahoma that case doubt
ity judgment may be construed in the
light judgment entire roll record. construing am obscure or judgment
biguous what issues determine adjudged, proper
were it is to consider *2 unlawfully ordering dissuading court, by individual leave district
means threat to deter this individual testifying grand jury. Petition further alleges preliminary hearing was *3 1975, held on complaint May 1, in Dis- trict County Court of Seminole charges were dismissed. 14, 1975, July
On interroga- sheriff filed tories attorney for district to answer. Dis- trict attorney interrogato- failed answer ries. 4, 1975, August
On
attorney
district
filed
special appearance
jurisdic-
and denial
tion on ground
complained
all acts
of tran-
spired
capacity
while in his official
as dis-
attorney
trict
and being immune from lia-
bility, action should be dismissed.
August 27, 1975,
On
hearing was had on
compel
sheriff’s motion to
answers
in-
terrogatories
attorney’s special
and district
appearance and motion to dismiss for lack
jurisdiction.
Powell,
Roy
pro se.
B.
Trial judge sustained sheriff’s motion to
compel
interrogatories giving
answers to
Driscoll,
Mattingly,
A.
E.
James
Jack
attorney forty days
comply.
district
Seminole,
respondent.
for
argument
judge
abeyance
Trial
held
special
appearance
motion
dismiss
BERRY, Justice:
period
for lack of
for
of 45
proceeding
commenced
original
This
days
parties
so
submit briefs.
Powell,
Attorney
by Roy
District
B.
4, 1975,
September
district
On
County.
seeks writ of
Seminole
Petitioner
application in
for
filed
this Court
writ
respondent,
prohibition against
Frank
Hon.
prohibition.
Seay
of District
Judge
as District
H.
of-
consistently
Divi-
have
held
Seminole
We
judi-
sion,
ficer is
liable
action for
Oklahoma.
civil
Eagleton, 11
cial acts. Comstock v.
Okl.
jurisdic-
He asks this Court
assume
Dibbens,
487,
Waugh
61
P.
v.
to re-
prohibition
tion and to issue writ
Hirschi, Okl.,
221,
589; Quindlen
P.
spondent
commanding him to refrain
judge
‘private
appear
1965]; Hampton
must
that he
Chicago,
[9th
power,
transcended the limits of his
1973];
but F.2d
Ames v. Va
[7th
long
vreck,
as
scope
F.Supp.
[D.C.1973],
he remains within the
legal
liable,
authority he is not
However, present case is based
* * *
motive;
notwithstanding his
upon
prose
filing
of criminal
Cook,
In Price v.
120 Okl.
250 P.
cution of criminal case. Such acts are
519, we
county attorney
held actions of
functions,
police
and not
done within
qua
of his
are
*4
functions.
si-judicial in character and afford absolute
general
rule under federal civil
liability.
quoted
from
rights
attorneys
act is that prosecuting
are
approval
following
statement in Dun
immune from
civil suits for
based
nington Loeser,
636,
1161,
48 Okl.
149 P.
performance
on
part
of
that are
of
duties
874,
rehearing:
150P.
judicial process.
Coakley,
Marlowe v.
adopt
rule,
“To
a lax
favorable
ac-
denied,
Cir.],
F.2d
cert.
U.
[9th
prosecution,
tions for malicious
is to
2017,
465;
S.
89 S.Ct.
L.Ed.2d
open
actions,
the door in such
and to
Heisel,
Bauers v.
Cir.
[3rd
prosecutions,
close the door to
to turn
Nash,
1966]; Phillips v.
jured
equity,
at
suit in
law,
judicial power
granted by
not
at
proper proceeding
or other
for redress.”
tempting
applica
to make an unauthorized
parties
rights
judicial
not be
Both
federal civil
tion of
force.
will
Writ
brought in
because
state court.
under such conditions
withheld
in the
state a cause
exist
tions contained
where
remedies
other concurrent
attorney is abso-
equally
are
of action unless a district
appear such remedies
does not
lutely
liability.
immune from civil
But
Board
Com
adequate and convenient.
Keen,
quasi-
attorney’s immunity as a
County v.
194 district
missioners
Harmon
quali-
rel.
absolute but
State ex
153 P.2d
Although
protected
fied.
have
24th
citizens
been
v. District
Judicial
Pitchford
Dist., Okl.Cr.,
government
power
from
abuse of
nities are too of the tors consideration nature DOOLIN, without (dissenting): alleged for their misdeeds and the reason if it is agree that with We subject to immunity, then 1983 becomes § attorney acting that a district shown circumspection if not emasculation. See authority in scope and within the (7th v. F.2d 389 Berbling, also Littleton duties, pursuance of his official he 1972). Cir. liability This for his acts. mune from civil by the cited. clearly supported cases prior to the enactment of Even § However, by the the action taken believing attorney there is that a district premature, to majority to we dissent be if he is not sheds his for two alternative issuance writ complaints by rather out others but sworn reasons. complaint and himself causes initiates charge that he arrested to be petition indeed First, does we believe Gerking, See knows to be false. Watts action, specifically more state a cause (1924); P. 318 Schneider second, Or. under 42 U.S.C.A. Shepherd, 192 Mich. N.W. petition that a does the alternative claim not within (1916). Such action be at- a cause of action should not state pow- scope It is an abuse of of his duties. not a refusal to an- tacked demurrer under of state law. er color interrogatories. swer alleges “Defendant Plaintiff’s ac- Does the state cause of justifiable cause maliciously with no opinion of ma- Contrary tion? Merry- (Bill) C. injure W. with intent jority, allega- it that does. we believe interrogatories if be- occupation of to answer he reputation and field in his refuse Oklahoma, complaint faulty? be lieves Sheriff Seminole majority opinion, Merryfield By into think not. bring (Bill) C. W. charge exclusively right belongs public disgrace continued Merryfield quasi-judicial with officers. prosecuted (Bill) C.W. alleged crime.” Such the aforementioned for scope not within action is prosecution by for at malicious attorney. alle- This of a district
the duties torney allege type must such of abuse true, creates cause gation, proved to be specific, office. The but must be as covered 1983. action § it necessary is not brought un of Dis- alleges that one Petition further specific der 1983 to enumerate each act. being-inves- Attorney’s was trict witnesses This would be to evidence. Since plead true, a fact tigated perjury. such If for legislation giv 1983 remedial it must be covered of action as a cause create en liberal An action under construction. by 1983, respondeat superior. 1983must pleading dismissed at the alleges that defendant further Petition stage unles certainty to be a justifiable no reasonable that the would be entitled Merry- bringing the above any relief under stated facts which Merryfield acquitted was field and that proved of his claim. Barnes true, plaintiff may again charges. Merritt, (5th 1967); a cause of action under have stated Holmes v. City Housing New York Au thority, 1968). 398 F.2d (2nd charges on If a files giving Otherwise we are a district been no own, he knows there has when carte prosecute blanche to initiate as well as upon act which to base criminal committed against anyone any reason charges, there can be little doubt these just cause, re no fear of beyond his au- he has acted prisal and with no redress the citizen. subject thority damage and is to a suit. If *6 it a of ac- alleges a so states Rhodes, Scheuer v. 416 U.S. 94 S. not, adequate procedure If it does an tion. Ct. (1974) L.Ed.2d 90 involved a through a is available a demurrer or mo- suit the Ohio, Adju- Governor of summary judgment. tion for tant personal General others the brings point representatives of
This us to our second de- of of the estates stu- the parture opinion majority. from the of the dents who campus were killed the of There University. was no demurrer filed. The Dis- Kent State The District Court Attorney simply trict to in- refused answer dismissed for lack of before an terrogatories plaintiff. submitted the was answer filed because it felt de- the proper This is not the method to attack a fendants being were sued their official petition. capacities. uni- Cases under 1983 have The Sixth Circuit affirmed. formly plaintiff pe- his Supreme allowed a amend The United States Court re- tition; versed, plaintiff given not be here will that holding the issue was not whether privilege. spe- plaintiff a Oklahoma statutes are ultimately prevail, Our would even may though cific. The trial court order a it might appear on face the interrogatories party may pleadings answer a recovery very was remote contempt held in indirect he 12 and unlikely, if refuses. but whether the claimant was O.S. 549(c). Attorney The District entitled to offer support evidence to his given right than claims. A more to refuse a should not be dis- private permit citizen. If we a district at- missed for failure to state a claim unless it manner, torney this to act in cavalier do the prove no set of give private we citizen the of also claim which would facts Pachtman, supra, sup- Imbler v. gov- find We The acts relief. him to entitle portive reached in quality conclusion have the do not ernment edict, prior opinion of this Court. unchangeable overrid- supreme and acts are These conflicting rights. ing all Imbler, Mr. Powell wrote: Justice power through the reviewable prosecutor that most “The function of Court The 1983. virtue granted invites tort action often a common-law had acted court the district further held prosecution, as his decision to initiate a. in dis- erroneously and hence prematurely suit for malicious this lead did, complaints as missing prosecution misfires. if the State’s case to es- any opportunity affording claimants The first case to address American their claims. tablish amendability question prosecutor’s of a here. situation the identical This is Slin an to such action was Griffith present opportunity to had no Plaintiff has kard, (1896). Ind. N.E. are not un- his claims. We evidence pros complaint charged that a local against a dis- here is that' the suit mindful probable ecutor without cause added But to governor. attorney, not the trict bill plaintiff’s grand jury true name to higher awith office is clothed hold this in jurors had grand after the refused of the Gov- than that immunity degree of him, plain the result that the dict in- to do an Sovereign State ernor of appear tiff arrested and forced was meaning of the intent justice to the final repeatedly before erosion Rights Act. 1964 Civil Despite ly prossed. allegations nolle was majority decision. begun with 1983has malice, of Indiana validity opinion as express no ground We action on the dismissed the his chances of plaintiff’s or claims prosecutor absolutely was immune.” that to simply hold prevailing. would We prosecutorial im “The view Griffith plain- point before the cause at dismiss rule munity became clear ” * * * to consider opportunity tiff has .had issue. on the nec- interrogatories answers to ****** prove essary amend immunity “The common-law rule writ should premature and claims must deter- thus well settled. nowWe be denied. mine the same considerations whether com- public policy that underline the Chief authorized to state Vice am abso- mon-law rule likewise countenance in the views concurs HODGES think lute expressed. herein *7 (E.A.) they do.” only qualified im- prosecutor “If a a ON OPINION SUPPLEMENTAL suits would munity, the threat of REHEARING performance of his duties undermine SIMMS, of common- less than would the threat Justice: prosecution. A law for malicious suits Following promulgation of Court’s duty exercise bound to prosecutor is opinion case, an in this the deciding in which judgment both best of Imbler v. The United States decided in conducting them 984, bring and suits 409, Pachtman, 96 S.Ct. 424 U.S. of the public trust court. L.Ed.2d which was U.S.L.W. con- suffer he were tor’s office would involving case the issue of making every the decision strained Attorney, California and more District poten- his own in terms of consequences particularly, scope applicability suit, damages. Such liability for tial immunity against brought under fre- expected some suits could provisions of 42 U.S.C. 1983. quency, will trans prosecution thereof, defendant often and the prosecuted being form his resentment at question, penumbra fall within the improper ascription into the and mali quasi-judicial functions, as mentioned Imbler, therefore, supra, petitioner, cious actions to the State’s advocate. Fisher, law, suit, Bradley 335], Cf. a matter U.S. is immune from ei- [80 son v. Wall. [335] Ray, 386 U.S. at 20 L.Ed. [547], at Pier S. ther at common-law, further conclude, or under U.S.C. under Imbler, Further, Ct. [1213] if the at prosecutor [18 could be made L.Ed.2d 288], supra, properly made at the such a determination pleading stage. per to answer in each time such a court Rehearing is therefore Denied. charged wrongdoing, son him with energy be diverted and attention would WILLIAMS, BERRY, J.,C. LAV- pressing duty enforcing from BARNES, ENDER and concur. JJ. criminal law.” “Moreover, plead- that survived the suits HODGES, IRWIN, J., V. C. J., ings pose danger would substantial dissent. liability prosecutor. even to honest * * *” (E.A.) DOOLIN, (dissenting): “The [*] affording [*] [*] only [*] qualified [*] [*] bler Pachtman if it is shown a district with the majority Im munity prosecutor also could have within scope upon functioning pursuance and in adverse effect of his official ” ** * of the justice system. duties, criminal he is immune from liability civil for his acts. This is further paragraph opinion The last of the Imbler supported by However, other cases cited. delineates holding, of the Court’s believing the action taken wherein is stated: premature, to be I dissent to the issuance “ * * * We have no occasion to con- of the writ. sider whether like or similar reasons re- As majority opinion out, sets quire immunity aspects for those trial passed court question has on the prosecutor’s responsibility that cast him of whether the states a cause of in the role anof administrator or inves- action. abeyance held in argument on tigative officer rather than that of advo- petitioner’s motion to dismiss for failure to that in only initiating cate. We hold state cause of plain- action but sustained prosecution and in presenting State’s tiff’s compel motion to answers to inter- case, prosecutor is immune from rogatories. civil suit damages under 1983.” Before the trial court argument heard (E.A.) dismiss, ruled on motion petitioner filed application purposes we assume for the prohi- for writ of dismiss, the motion to filed in the trial bition. Petitioner requests this court that all allegations prohibit contained in trial court ruling on whether *8 plaintiff’s true, petitioner’s are al activities are of such nature as leges petitioner “maliciously that herein to clothe him with immunity absolute justifiable reasonable and suit. In order to rule in his favor we must cause, complaint made attorney a sworn in Cause hold a district always absolutely is CR-75-73, No. Seminole regardless immune capacity Division, petitioner Oklahoma” and that which he hypothesis acts. If this is true it charge “continued prosecuted impossible W.C. would be to state a cause of ac- (Bill) Mayfield with the'-aforementioned prosecution tion for against peti- malicious filing crime.” The of a criminal tioner. This is not law. Shepherd, Supreme Court Mich. 158 N.W. States
The recent United
clearly holds
decision,
Pachtman
(1916).
Imbler v.
absolutely
attorney
district
is
only
legislation
Since
is remedial
in his
if he
immune
given
must be
liberal construction. An ac-
a
initiating
states “in
capacity.
Court
tion under
1983must not be dismissed at
presenting the State’s
prosecution and
pleading
stage unless it
to be a
a
case,
prosecutor is immune from civil
certainty that the
would be enti-
1983.” There
suit for
under §
any
tled to no relief under
stated facts
“inti-
attorney’s activities were
proved
which
of his
phase
judicial
mately
with the
associated
Merritt,
(5th
claim. Barnes v.
other
cific. The trial
order
immu
officer,
longer
is no
immune.
he
party may
interrogatories
answer
and a
prosecu
broadly granted to
are
nities
too
contempt if
held in indirect
he refuses.
nature of
consideration
tors without
549(c). The
O.S.1971
reason for
and the
alleged misdeeds
their
pri-
given
than a
right
no more
to refuse
subject to
immunity, then
1983 becomes
permit a district attor-
vate citizen. If we
See
circumspection if not emasculation.
do we
ney
manner,
to act
this cavalier
Berbling,
had an
to amend his
less
prove
the
no
argue
to
right
and is denied
its merits.
his
set
in support of his claim which
of facts
plaintiff an
gives
12
314
ab-
O.S.1971
would entitle him to relief.
acts of a
The
right
to
his
solute
amend
without government
quality
do
not have the
anytime
an
filed
supreme
leave
before
answer is
despotic edict,
of a
overriding
prejudice
proceedings.
the
without
to
conflicting
all
rights. These acts are re-
plaintiff
amend
O.S.1971
allows
to
through
judicial power grant-
viewable
days
within ten
after
demurrer is filed.
by
ed
virtue of
1983. The Court further
provides:
O.S.1971
held in Scheuer
§318
the district court
acted
prematurely
erroneously
and hence
in dis-
sus-
“Amendment when demurrer
missing
did,
complaints
as it
without
sustained,
tained.
the demurrer be
affording
any opportunity
claimants
to es-
may amend,
de-
the adverse
tablish their claims.
by way
be'
fect can
remedied
of amend-
court,
ment,
costs,
with or
as the
This is the identical situation here.
discretion,
shall direct.”
its
Plaintiff has had no opportunity to amend
his
to conform
to Imber
prohibition
The issuance
a writ
present
evidence to
his claim.
I
prior
by petitioner
this
an answer
court
am not unmindful that
here is
suit
ruling
or a
on a demurrer divests trial
against
attorney,
gover-
not the
authority
permit
his
court of
broad
But
nor.
this
hold
office
clothed
anytime during proceedings.
amendment at
higher
degree
than
Norvell,
(Okla.
See Maben v.