Diana G. Schlegel and Central Pacific Freight Lines, an Oregon Corporation v. William Bebout and Bob Russell

NOONAN, Circuit Judge,

dissenting:

The line between absolute and qualified immunity “often is not an easy one to perceive and structure.” Cleavinger v. Saxner, 474 U.S. 193, 206 , 106 S.Ct. 496, 503 , 88 L.Ed.2d 507 (1985). In determining where the line must fall, federal judges, being human, are wonderfully perceptive in perceiving that they could not function without absolute immunity, less clearsight-ed when they look at some other parts of government. The court here has, I believe, misperceived this difficult line. The question, simply put, is, “Is a state Public Utilities Commission more like a school board than a prosecutor?” The court answers, “School board” and applies the qualified immunity of Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975). “Prosecutor” seems to me the better answer, bearing in mind that public utilities commissions like the Oregon one are charged with prosecutorial duties which in an earlier age, with fewer administrative agencies, would have had to have been discharged by the attorney general. The several audits complained of were in discharge of prosecutorial duty, as was, obviously, the cease and desist letter. The attempts to induce settlement were prose-cutorial in nature. Nothing else is relied on by the court except an alleged libel: surely one cannot turn a libel into a civil rights action by saying it deprived one of equal protection!

Now it is true, of course, that the plaintiffs allege that the audits were discriminatory, the attempts to induce settlement were harassment, and the cease and desist letter was baseless; and it is not within the scope of the PUC’s duty to discriminate or harass or issue baseless complaints. But neither is it within a prosecutor’s duty to offer perjured testimony or suppress evidence, and a prosecutor is immune when charged with such misconduct. Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976). The prosecutor is immune because the merits of his actions cannot be examined without shaking public confidence in his office and his own confidence in his work. Id. at 424-25 , 96 S.Ct. at 992-93 . So here, to subject officers of the PUC to civil rights suits for carrying out their prosecutorial duties is substantially to impair public confidence and their own.

A decent regard for our federal system points to the same conclusion. Public utility commissions are important adjuncts of the state prosecutorial system. If any disgruntled litigant before such a body is free to make a federal civil rights case out of her disappointment, state autonomy is curtailed sharply. In the case at bench the *946 plaintiffs — losers in an application for trucking routes — have put together allegations of libel (a state tort), added allegations of prosecutorial misconduct, and wrapped around these claims a conclusory assertion that they have been denied equal protection of the law. The damages that the plaintiffs say have flowed from the miscellaneous acts charged are $2 million. Although no clear connection appears between this substantial sum and the three audits, the cease and desist letter, and the state tort, I assume that counsel made reasonable inquiry before stating that such damages were suffered. Fed.R.Civ.P. 11. To have to defend against such damages is a deterrent to public prosecutorial service. Neither the federal system nor the civil rights laws require state officers to face such claims in a federal court.