William J. Bauers, Jr. v. Herbert T. Heisel, Jr

FREEDMAN, Circuit Judge

(dissenting).

I am not prepared to hold that a prosecutor, as such, enjoys the full privilege of a judicial officer. A prosecutor, although a public official, is in the actual trial of a case simply the government’s lawyer, just as his adversary is the defendant’s lawyer. Both of them are bound by the standards of professional ethics, although the prosecutor often is called a quasi-judicial officer, a characterization which describes his obligation to his client, the State, not to seek to win a case against an innocent defendant or to win a good case by unfair means.

I would not equate the trial conduct of a prosecutor with the adjudicatory role of a judge, whose duties involve a process so delicate that it would be undesirable to subject him to inquiry by suit under the Civil Rights Act. An advocate stands in a totally different position and I do not believe that the state’s advocate should be any more immune than the defendant’s advocate, who is licensed by the State, or its police officers. I therefore dissent from the view that a prosecutor is in all cases immune from liability under the Civil Rights Act.

On the other hand, there may well be aspects of the duties of a prosecutor in which he must exercise his judgment in a manner which is truly quasi-judicial in nature. That area therefore should be included within thé scope of a partial, quasi-judicial immunity. The prosecutor’s decision as to the appropriate court in which prosecution should be had is a matter in which I would hold a prosecutor immune unless there appears an intentional and malicious abuse of his authority. 1 It is in such an area, and to this extent only, that I would give recognition to the quasi-judicial aspect of the prosecutor’s function.

*595 In the present case the complaint is not made against the prosecutor’s conduct in the trial of the case, but rather in his choice of the court before which the plaintiff should be tried. This charge appears to me to fall within an area of partial immunity. However, since this boundary between partial immunity and full liability would now be delineated for the first time and since we are dealing with an inartistically drawn complaint framed by a layman pro se, I would not dismiss it finally but would afford the plaintiff an opportunity to amend in the court below. 2

I am reinforced in this view by the circumstances in which the decision below was rendered. As the record comes to us the district judge simply entered an order directing the dismissal of the complaint because the court had no jurisdiction and at the same time ordered the clerk to file the complaint together with the order of dismissal. As we pointed out in Urbano v. Calissi, 353 F.2d 196 (3d Cir. 1965), where a similar order was entered and where, as here, no service was made on the defendants, plaintiff is entitled to an opportunity to be heard in the court below and defendants have appropriate means under the Rules of Civil Procedure to move for the dismissal of the action or for summary judgment. Thereafter we will have the benefit of the conclusion the district judge arrived at after hearing the contending parties on the jurisdictional question and if need be, on the merits. 3 This procedural requirement seems to me especially desirable in so significant a question as the scope of a prosecutor’s immunity from liability under the Civil Rights Act.

I would therefore vacate the dismissal of the complaint and remand the cause for proceedings in the regular course of litigation under the Rules of Civil Procedure.

. Cf. Dombrowski v. Pfister, 380 U.S. 479, 490 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965), where the Court said that a claim under the Civil Rights Act was made out where it was alleged that state officials, including the attorney general, a district attorney and a member of the legislature, had invoked and were threatening to invoke criminal proceedings in had faith and without any hope of success, but only to discourage plaintiffs’ civil rights activities.

. The complaint alleges that the defendant “knew or should have known” that plaintiff was not yet eighteen years of age at the time of the commission of the alleged offenses and therefore was a juvenile subject to the exclusive jurisdiction of the juvenile and domestic relations court. It also alleges that “defendant’s malicious disregard for the aforesaid duties of his office caused plaintiff to be denied a speedy trial”, notwithstanding five letters from plaintiff over a period from approximately May, 1951 to April, 1953, all requesting speedy trial.

. We said in Urbano: “It appears that none of the defendants has been served with the complaint. There is therefore no party defendant of record in the proceeding. As a result, when the case was submitted to us on appeal there were no appellees before the court. In a case of this kind it is desirable that the aetion be permitted to proceed in the customary manner. Plaintiff was entitled to an. opportunity to be heard on the legal questions involved in the court’s conclusion that the complaint should be dismissed. See Harmon v. Superior Court, 307 F.2d 796 (9 Cir. 1962). The defendants have appropriate means under the Rules of Civil Procedure to move for the dismissal of the action or for summary judgment. At that time both sides will have full opportunity to present their contentions and whatever conclusion the District Judge may arrive at on the merits (See Sheridan v. Williams, 333 F.2d 581 (9 Cir. 1964)) will have the benefit of the views of the contending parties on the merits and on the jurisdictional question.”