The opinion
THOMAS, Justice,
dissenting.
I, too, dissent from the resolution of this case upon vacation and remand by the Supreme Court of the United States. I join in the dissenting opinion of Justice Golden, which I find to present a correct analysis of the case before us, but I add some comments of my own.
It is disingenuous for the court, even in a plurality opinion, to purport to adopt the facts articulated in Cooney v. Park County, 792 P.2d 1287 (Wyo.1990), cert. denied and judgment vacated sub nom., Cooney v. White, — U.S. -, 111 S.Ct. 2820 , 115 L.Ed.2d 965 (1991), on remand, Park County, White and Mayor v. Cooney, 845 P.2d 346 (Wyo.1992), and then to quote *370 from the factual version found in the dissenting opinion in the first case. I am further troubled by the statement that the case is being reexamined without predisposition toward a particular result. It is clear to me that the dissents in the earlier case manifest ample evidence of a predisposition toward a particular result.
Perhaps the best way to characterize this decision is that it is a capital example of the adage that bad cases make bad law. No one can justify what occurred with respect to Thomas Russell Cooney. A supreme court, however, must avoid permitting its policy decisions to be driven by emotional reaction. A sense of outrage is not the appropriate premise from which to articulate policy.
The majority seriously misstates the factual circumstances in this instance by assuming that the deputy county attorney was furnishing advice prior to the initiation of a judicial proceeding. The fact is that the case is the same one in which the conviction occurred, and the jurisdiction of the court continues during the probationary period. This is entirely different from the factual circumstances in Burns v. Reed, — U.S. -, 111 S.Ct. 1934 , 114 L.Ed.2d 547 (1991), on remand, 958 F.2d 374 (7th Cir.1992); in which the prosecuting attorney was. furnishing advice to police officers prior to the initiation of any judicial proceeding. It appears that the majority chooses to misunderstand the reach of Burns.
This case fits within Wyo.Stat. § 7-13-305 (1987), which provides:
(a) The period of probation or suspension of sentence under W.S. 7-13-302 shall be determined by the court and may be continued or extended.
(b) Upon the satisfactory fulfillment of the conditions of suspension of sentence or probation under W.S. 7-13-302 the court shall enter an order discharging the defendant.
(c) For a violation of a condition of probation occurring during the probationary period, revocation proceedings may be commenced at any time during the period of suspension of sentence or probation under W.S. 7-13-302, or within thirty (30) days thereafter, in which case the court may issue a warrant and cause the defendant to be arrested. If after hearing the court determines that the defendant violated any of the terms of probation or suspension of sentence, the court may proceed to deal with the case as if no suspension of sentence or probation had been ordered.
(d)The time for commencing revocation proceedings shall be automatically extended for any period of time in which the probationer is incarcerated outside this state during the probationary period for the conviction of an offense which is a violation of the conditions of probation, unless the probationer has made a valid request for final disposition under the interstate agreement on detainers, W.S. 7-15-101 through 7-15-106 [§§ 7-15-101 through 7-15-105].
This statute clearly contemplates a judicial function. In advising the court, the probation officer was proceeding in accordance with statute. Wyo.Stat. § 7-13-408(a). When that notification was furnished to the deputy county attorney, an officer of the court, his request necessarily was a judicial function.
I agree with the carefully reasoned opinion of the court in the first instance, and with Justice Golden's views in his now dissenting opinion which I find correctly apply the functional analysis. There can be no question that the revocation of probation is a judicial function and, still, there is no question that the deputy county attorney’s participation in the revocation proceedings was ‘The functional equivalent of the prosecutor’s role as an advocate in a criminal proceeding.” Cooney, 792 P.2d at 1295 . While hindsight is indeed helpful, it does serve to blind us to the possibility that, at the time of these events, the second set of circumstances communicated to the prosecutor may have been the incorrect one. He had received two versions from the probation and parole officers, with an assertion that one was correct and one was not. The best way to resolve that was to let the court, not the prosecuting attorney, decide.
*371 Unfortunately, we have not really established a policy rule in this case because I note that one justice concurs only in the result. I fear, however, that, rather than appropriately applying the policy that justifies the functional analysis, we have made the functional analysis an ad hoc determination in every case. If that is to be an ad hoc determination in each case, then the judicial function is denied the freedom from litigation that the functional analysis depends upon in justifying immunity. Protecting the enforcement of criminal law from litigation is the basic policy justification for the functional analysis. In Wyoming, to my judgment, that protection of the prosecutor is forever lost because there will have to be litigation in each instance to determine whether the prosecutor is, or is not, engaged in a judicial function whenever there is dialogue with the executive department. That result is unfortunate.