The opinion
URBIGKIT, Justice,
dissenting.
I. THE ISSUE IN PERSPECTIVE
This case questions whether society provides a remedy when public officials commit perjury, suborn perjury and acknowledge commission of perjury in the pointless and almost random incarceration of a person without justification. In refusing to consider only disbarment, censure or criminal prosecution, none of which will occur, I will not reject civil damages for at least an attainable alternative. This is civil war; not by members of the society against the government, but by representatives of government against its citizens. This is statism 1 at its worst. This is the story of Thomas Russell Cooney who was unjustly arrested and thrown into jail for thirty-eight days without any court appearance upon a complaint intentionally based on false if not perjurious statements of government employees. This is absolute immunity for official misconduct defined as “ ‘entitlement not to have to answer for * * * conduct in a civil damages action.’ ” Murphy v.Morris, 849 F.2d 1101, 1103 (8th Cir.1988) (quoting Mitchell v. Forsyth, 472 U.S. 511, 525 , 105 S.Ct. 2806, 2815 , 86 L.Ed.2d 411 (1985)).
Finally, it is a travesty and tragedy of rules of law that protect governmental misconduct from responsibility. By that, it is a strange and paranoid lemming like march, universally criticized by academic review which was accurately described thirty-one years ago to be justified by “arguments [which] offer a wry blend of fairy tale and horror story.” Gray, Private Wrongs of Public Servants, 47 Cal.L.Rev. 303, 339 (1959). 2 “This development has occurred in the context of logical inconsistencies and often with only cursory reasoning.” Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260 , 564 P.2d 1227, 1231 (1977). Immunity for responsibility for public officials is not mandated by the constitution nor even statute, but rather a public policy where the public to be protected is the miscreant public official at the loss and damage of the injured innocent citizen. Society cannot be sustained in a democratic system if arbitrary, malicious and perjurious conduct is not considered to be both reprehensible and punishable.
Initially, in fairness to Chris J. White, assistant county prosecuting attorney, and *1302 Robert Mayor, probation officer for the Wyoming Department of Probation and Parole, this case does not “prove” why they did what they did or what in fact they may have done. In choosing to escape a full factual review, they are faced in concepts of the law with the stage where this case did progress which provides tactical assumptions of guilt to allegations whether in fact true. 3
I would concur with the majority that the occurrence could be further explored in disciplinary action against the attorney which could lead to disbarment and criminal prosecution against both the attorney and the parole officer. However, realistically, neither will occur. Actually, far better in fairness and justice to everyone, would be a responsible review in civil litigation. 4 Privileges and immunities against responsibility are an anathema for democratic society and most appropriately correctable by civil damage responsibility. The proper office of immunity should be constrained to protect governmental operation and not to insulate needlessly abject misconduct.
Alleged official misconduct, corruption, and perjury is hidden here behind the dirty skirts of immunity. From these denigrations of rights guaranteed not only by the United States Constitution but also the Wyoming Constitution, which was written in the vigor of a young society for a new state, I impassionately dissent. It is time to look again whether our foundational doc *1303 uments are written to be found only as blank pages when governmental personnel misconduct occurs. Statism’s uncaring autonomy in denied relief from oppression simply should not be acceptable within the clear mandate of the Wyoming Constitution. In response by caricatures of immunity for absolution from oppressive misconduct, malfeasance and perjury, we now write “no” for the state’s adjudicatory future and to the Wyoming Constitution for protection of our citizens in whose protective interests the sacred and unalienable rights were provided.
II. WE WRITE AS WYOMING JURISTS WITHIN A WYOMING CONSTITUTION
I cannot retreat to find justice only for punishment of the miscreant where recompense to the victim could more appropriately serve society’s interests. Consequently, I dissent from affirming the grant of the W.R.C.P. 12(b)(6) motion to dismiss. We misplace responsibility and improvidently auger out criminal conduct by the majority opinion. I am also unwilling to accept fear of responsibility as the basic justification of operational failures of government. Im-bler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976) was a bad case, a statistic derivation lacking accurate historical base and need not be extended further than the empirical sweep of the United States Supreme Court broom and not so far now to deny rights to this victim. 5 A deterrence to sloganistic extension is called to our attention by the state constitution where it is stated:
All power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness; for the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper.
Wyo. Const. art. 1, § 1.
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.
Wyo. Const. art. 1, § 4.
No person shall be deprived of life, liberty or property without due process of law.
Wyo. Const. art. 1, § 6.
Absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.
Wyo. Const. art. 1, § 7.
All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. *1304 Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.
Wyo. Const., art. 1, § 8.
No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.
Wyo. Const. art. 10, § 4.
Not unobtrusively involved is the oath of office which surely should include an assistant prosecuting attorney where, under sacred oath, the governmental official states in part:
“I do solemnly swear (or affirm) that I will support, obey and defend the constitution of the United States, and the constitution of this state, and that I will discharge the duties of my office with fidelity; * *
Wyo. Const. art. 6, § 20.
In obedience to that sacred trust, I do not draw down the insulative curtain of Imbler to so closely protect malefactors by simply accepting what the majority says that “the reviewing court must not allow its focus on the functional character of the prosecutorial conduct at issue to be skewed by an emotional response to a particularly abusive fact situation. There is no bad faith exception to absolute prosecutorial immunity for prosecutorial conduct that meets the Imbler requirements.” I do not reject the function analysis upon which the majority so strongly relies; I resist characterizing perjury from another public official as a function of the prosecutorial responsibilities in order to fulfill the most weighty position in the criminal justice delivery system. The function of the prosecutor does not include the commission of a crime. B. Gershman, Prosecutorial Misconduct (1989). See also the rule that the knowing use of perjured testimony by the prosecution denied a defendant due process of law and requires that the defendant be granted a new trial. People v. Foster, 190 Ill.App.3d 1018 , 138 Ill.Dec. 311 , 547 N.E.2d 478 (1989). See also Tiersma, The Language of Perjury: “Literal Truth, ” Ambiguity, and the False Statement Requirement, 63 So.Cal.L.Rev. 373 (1990).
It is unacceptable by whatever justification to demean due process and fairness to the accused, Phillips v. State, 17A P.2d 118 (Wyo.1989); Harvey v. State, 774 P.2d 87 (Wyo.1989), in order now to cover up suborned perjury committed by the public official. Cf . Blake v. Rupe, 651 P.2d 1096 (Wyo.1982), cert. denied 459 U.S. 1208 , 103 S.Ct. 1199 , 75 L.Ed.2d 442 (1983). Unfortunately, the majority gives immunity to the alleged criminal behavior in this instance by moving parole and probation decisions into the prosecutor’s criminal prosecution function. Likewise, the majority obliterates the Wyoming Constitution in seeking justification from the federal courts where those officials did not achieve office by allegiance to the constitution of this state.
III. FACTS PRESENTED
Lacking any adequate development of the factual record, it is impossible to understand not only why but what happened resulting in the issuance of the arrest warrant and the consequent incarceration of Cooney. 6 To answer as we can requires *1305 examination of these facts to establish where this course of conduct properly fits into immunity absolution. This is not a typical malicious prosecution, it is a criminal conspiracy to commit official perjury and deny constitutional rights to the victim. Basic documents, including a petition for revocation and warrant are not included in the official record. The decision letter of the trial court was confined to the factual allegations of the complaint. Briefing in trial court by the defendants obviously extended the contravention of facts and complexity of allegations without any records or documents produced to support the statements made.
We do know that on January 24, 1986 when Mayor contacted White to state that Cooney had failed to contact his probation officers, the prosecutor directed the probation officer to prepare a petition for revocation. Five days later, Mayor was advised that Cooney was residing in Bairoil, Wyoming in accordance with permission granted and was in contact with probation personnel. Cooney alleges that Mayor contacted White with this new information and was again directed to prepare a petition to revoke anyway, even though the revocation statement would be knowingly false and perjurious in effect. Mayor prepared the petition and a bench warrant containing the false statements and forwarded the documents to White who presented the petition to the trial court and obtained a bench warrant. On this record for motion purposes, both state officials conspired to obtain the arrest of Cooney by use of false statements made under oath.
I have trouble fitting this scenario into prosecutorial discretion and state statutory provisions for revocation. Something is missing in the translation and remains missing when the public defender later requested Cooney’s release and White refused so that the improperly incarcerated individual languished in jail without any court hearing or appearance for thirty-eight days.' 7 See Morrissey v. Brewer, 408 *1307 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972), which requires a preliminary hearing.
IV. PROBATION REVOCATION PROCESS
The Wyoming statute providing for revocation was, in its explicit terms, obviously not applied in context or intent for the arrest and incarceration of Cooney.
(a)Where supervision of a probationer, parolee or other conditional releasee is being administered pursuant to directive of any court having criminal or juvenile jurisdiction, the board of parole, any of the state’s correctional institutions or the state probation and parole agents shall notify the appropriate court, board or institution whenever, in their view, consideration should be given to retaking or reincarceration for a violation of probation, parole or other conditional release. Prior to notification, a hearing shall be held in accordance with this act [§§ 7-13-409, 7-13-410] within a reasonable time, unless a hearing is waived by the probationer, parolee or conditional releasee. The appropriate officer or agents shall as soon as practicable, following termination of any hearing, report to the court, board or correctional institution, furnish a copy of the hearing record, and make recommendations regarding the disposition to be made of the probationer, parolee or conditional releasee by the court, board or correctional institution. Pending any proceeding pursuant to this section, the appropriate agents may take custody of and detain the probationer, parolee or conditional releasee involved for a reasonable period of time prior to the hearing and, if it appears to the hearing officer or agents that retaking or rein-carceration is likely to follow, for such reasonable period after the hearing or waiver as may be necessary to arrange for the retaking or reincarceration.
(b) Any hearing pursuant to this section may be before the state probation and parole officer, his designated hearing officer or any other person authorized pursuant to the laws of this state to hear cases of alleged probation, parole or conditional release violations, except that no hearing officer shall be the person making the allegation of violation.
(c) With respect to any hearing pursuant to this act [§ 7-13-409, 7-13-410], the probationer, parolee or conditional releasee:
(i) Shall have reasonable notice in writing of the nature and content of the allegations to be made including notice that its purpose is to determine whether there is probable cause to believe that he has committed a violation that may lead to a revocation of probation, parole or conditional release;
(ii) Shall be permitted to consult with any persons whose assistance he reasonably desires, prior to the hearing;
(iii) Shall have the right to confront and examine any person who has made allegations against him, unless the hearing officer determines that the confrontation would present a substantial present or subsequent danger of harm to the person or persons;
(iv) May admit, deny or explain the violation alleged and may present proof, including affidavits and other evidence, in support of his contentions.
(d) A record of the proceedings shall be made and preserved either by steno *1308 graphic means or through the use of a recording machine.
W.S. 7-13-409 (1977) (renumbered in 1987 to W.S. 7-13-408). Simply stated, no hearing by the executive agency, the state probation and parole officer was ever provided. If Justice Powell was,correct in Gagnon v. Scarpelli, 411 U.S. 778, 790 , 93 S.Ct. 1756, 1763 , 36 L.Ed.2d 656 (1973), there was no requirement for the prosecution to become involved in the non-adversary proceeding.
It is apparent that this court has created a further pathway for probation and parole revocation as a judicial revocation, 8 Knobel v. State, 576 P.2d 941 (Wyo.1978), in application of W.R.Cr.P. 33(f):
The court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing.
What is first found missing here is a notice to appear without arrest, second was any immediate court appearance by the incarcerated defendant, and finally, any opportunity for consideration of bail pending hearing. The only “conduct” established for the prosecutor was first suborning a perjured petition for revocation; second, presentation to the trial court of a false document; and finally, denial of a bail arraignment for release of the incarcerated individual. Compare Knobel, 576 P.2d 941 , where a bond was posted. None of these functions 9 are within the prosecutorial discretion even within any Imbler gambit.
Actually, nothing is found in statute, except by implication, that the office of the county attorney represents the state probation officer in revocation proceedings where that office has a function or responsibility for parole violation revocation. There is no record that determines White filed a motion for parole revocation. State v. Reisch, 491 P.2d 1254 (Wyo.1971). This case develops from an executive department petition for revocation under W.S. 7-13-409 (1977) and there was apparently no order to show cause as recognized in Murphy v. State, 592 P.2d 1159 (Wyo. 1979), where other offenses became the basis presented for revocation and not internal rule non-compliance which was implicated here. See likewise Smith v. State, 598 P.2d 1389 (Wyo.1979). Weisser v. State, 600 P.2d 1320 (Wyo.1979) cannot be compared since there, the petition was filed by the department and not by the county attorney and a hearing was held within six days following arrest. It is interesting to observe that in this official record, we do not even have original probation office records of activities or a copy of the petition to revoke. (See, however, n. 7, supra.) See Mason v. State, 631 P.2d 1051 (Wyo. 1981), Rooney, J., specially concurring. Clearly, revocation addressed conditions and not other law violations. This is peculiarly a function of the probation department within which the proper involvement of the county attorney is totally undisclosed. Not knowing what documents exist, it is impossible to determine whether a mailman could have equally served the same function as performed by White, except not to convince the probation officer to commit perjury. Not even proper or official discretional decision of the prosecutor is authenticated in this record.
Within the facts of this misbegotten occurrence, one also is called to question White’s authority and discretion to retain Cooney in jail without bond or appearance before a commissioner for thirty-eight days. Non-release in itself is separate misconduct — moral and legal. Sullivan v. Los Angeles County, 12 Cal.3d 710 , 117 Cal. Rptr. 241 , 527 P.2d 865 (1974). Intrinsic to either the judicial or administrative revocation process is an immediate opportunity *1309 for hearing or establishment of reasonable bail. See Weisser, 600 P.2d 1320 and Knobel, 576 P.2d 941 .
Y. ALTERNATIVE REMEDIES AS JUSTIFICATION FOR NON-LIABILITY, PROFESSIONAL DISCIPLINE OR CRIMINAL PROSECUTION
Before I attenuate the anger that morality requires by discussion of why the majority is wrong on the law in absolving serious prosecutorial misconduct from financial responsibility for damage, reference is required to the alternative remedies gratuitously advanced, as buried in footnote 7 of the majority opinion, suggesting disciplinary action and criminal prosecution. The State, for the purposes of a motion to dismiss defense, filed a pleading which has the effect of admitting suborning perjury and execution of a document under a false oath by a public official on January 29, 1986. That was now four years' ago. One would search in vain for either criminal prosecution or disciplinary action. White is shown in the current bar directory to be a member of the Wyoming State Bar and now a resident in Bakersfield, California. Wyoming State Bar Directory (1990). Mayor is no longer with the Department of Probation and Parole.
The most disturbing part of the majority opinion is the dissertation considering rather than providing economic repayment to the victim for damage sustained that alternative remedies for injury responsibility exist. It is argued that a chill upon proper performance is created by the requirement to defend against obligation to repay for damage inflicted by malevolent or malicious conduct. Otherwise, it is suggested that if the immunity is not provided, government cannot work. Immunity is, of course, only excused irresponsibility and denied liability for intentional wrongdoing in the use of a public office. Compare Foster, 190 Ill.App.3d 1018 , 138 Ill.Dec. 311 , 547 N.E.2d 478 , if we are now also going to apply that same philosophy to similar misconduct of the private attorney.
These alternative remedies providing responsibility to the immunized public official for his bad conduct in order to avoid the chilling result of monetary responsibility would substitute either criminal prosecution or professional sanction as the punishment. Kentucky Bar Ass’n v. Lovelace, 778 S.W.2d 651 (Ky.1989). The overpowering speciosity arises with a concurrent knowledge that in the justice delivery system, these alternatives are seldom if ever actually applied. It is an unacceptable fraud on the public since prosecutors seldom prosecute prosecutors and bar associations infrequently take punitive action to correct prosecutorial suborned perjury. Compare State v. Ramseur, 106 N.J. 123 , 524 A.2d 188, 290 (1987), where the New Jersey Supreme Court gave notice that it would not hesitate to refer breaches of prosecutors (death case) to bar disciplinary committees. See People v. Green, 405 Mich. 273 , 274 N.W.2d 448 (1979). See, however, Matter of Price, 238 Kan. 426 , 709 P.2d 986 (1985) for more than conduct in just one case, but see State v. Smith, 245 Kan. 381 , 781 P.2d 666 (1989).
This case provides an ordinary but predominating example of non-action. Before we consider what should have been done, we only prove the rule by recognition that the alternatives are only idle words not to be pursued as a remedy for the admitted evil perpetrated by the public official upon the wronged but hapless private individual. We do raise, however, question whether these alternatives, involving either prosecutor conviction and incarceration for a criminal charge and/or suspension or disbarment to practice the profession of law which is the public official’s livelihood, if really existent and pursued, would be preferred by the public official in avoiding damage responsibility. 10 This analysis, if *1310 we accept the generally quoted concept of Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579 (2nd Cir.1949), cert. denied 339 U.S. 949 , 70 S.Ct. 803 , 94 L.Ed. 1363 (1950), provides the only means of punishment for public officials who have been wrongful in their performance of responsibilities of a criminal complaint or professional discipline instead of economic repayment for the unjustified damage.
In the simplest terms within a motion to dismiss status, the facts presented could show criminal conduct where the assistant prosecuting attorney, White, told the probation officer, Mayor, to sign and swear to a false statement. The false affidavit was intentionally prepared by the probation officer in agreement with the prosecuting attorney. Then by direction and agreement, an affidavit was executed by Mayor. This perjurious document was next used by the prosecution in court filing to secure the issuance of an arrest warrant from the trial court. Pursuant to the conspiratorial agreement and planned use of the perjurious testimony, Cooney was arrested and held in jail for thirty-eight days without an opportunity for bond. The prosecuting attorney was advised by a third party that Cooney was innocent of any wrongdoing, but the conspiratorial conduct continued in denying an appearance before a court or arrangements for bond until the trial court hearing was finally provided and a release order obtained. 11 What crimes do the foregoing course of conduct infold? Clearly, perjury is first implicated, W.S. 6-5-301, against either or both of the participants, but additionally available for multiple charging, W.S. 6-5-107, official misconduct; W.S. 6-5-202, accessory after the fact; W.S. 6 — 5—305(b), obstruction or impedance of the administration of justice; W.S. 6-2-203, false imprisonment; and, of course, the inchoate offenses, W.S. 6-1-303, conspiracy and W.S. 6-1-201, aiding and abetting as an accessory before the fact. 12 If exposure to damage claims chill, *1311 then this is the criminal responsiveness as the alternative suggested. It is not a chill, it is pneumonia and virus flu combined.
Next for inquiry is the disciplinary code and ethical conduct “answer.” First, of course, conviction of a felony requires an automatic suspension of the practice of law. Disciplinary Code for the Wyoming State Bar, Rule XVI. Also implicated as a standard of conduct, we are required to address rules of professional conduct for the lawyer:
Preamble: A Lawyer’s Responsibilities
A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
Sfc ⅜5 Sfc }jt ⅜
Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.
Rules for Professional Conduct for Attorneys at Law.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. The signature of an attorney constitutes a certificate by him that he has read the pleading, motion, or other court document; that to the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the *1312 extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
Rule 3.1, Rules for Professional Conduct for Attorneys at Law.
(a)A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer does not know to be false but reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Rule 3.3, Rules for Professional Conduct for Attorneys at Law.
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) prior to interviewing an accused or prior to counselling a law enforcement officer with respect to interviewing an accused, make reasonable efforts to assure that the. accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(c) exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.
Rule 3.8, Rules for Professional Conduct for Attorneys at Law.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 4.1, Rules for Professional Conduct for Attorneys at Law.
I would wonder in consideration of the concept of chilling honest performance of professional responsibilities whether White or Mayor would prefer testing their contended wrongful conduct on a damage platform, and particularly so if protected by insurance or someone else’s financial responsibility, or be faced with the permanency embodied in criminal prosecution or professional disenfranchisement. The answer is, of course, that the alternatives are almost never and certainly seldom ever really considered and, if considered, never anticipated to be an actual risk. That parenthet *1313 ical question emerges — how often is a prosecutor prosecuted or censured for a wrongful arrest or malicious prosecution? The answer is, of course, next to never. 13 We are afforded in this wisdom by events and circumstances .that occurred in the earlier litigation resulting in this court’s decision in Blake, 651 P.2d 1096 . 14 Anger and ego not to be assuaged by legal knowledge or morality, the prosecutor in Blake , through her friend the investigator, arranged to file charges challenging Rupe by criminal attack and press release dissertation as a response to a horror of a jury trial acquittal. After arrest, the criminal charges were appropriately dismissed in preliminary hearing. The lawsuit which was filed, although initially involving a civil rights proceeding (Section 1983), went to the jury on malicious prosecution where the jury obviously adopted the testimonial perspective of the plaintiff in awarding a jury verdict against the prosecutor of $40,000 actual damage and $105,000 punitive damage and $20,000 actual damage and $35,000 punitive damage against the investigator. Blake, 651 P.2d at 1097-98 . This court, in a belated appeal on an immunity absolution, absolved the vicious, malicious and wrongful conduct which had clearly incensed the civil jury.
In Blake, 651 P.2d 1096 , this court stretched inordinately in the belated appeal to reverse the jury verdict. The problem, however, continues if we assess realities to the available alternatives. The reader should not be surprised that the prosecutor did not prosecute herself criminally nor prosecute the investigator. Members of this court are, of course, lawyers and may be themselves insulated from responsibility by appellate posture from required action pursuant to Rule 8.3, entitled Reporting Professional Misconduct, as a particularly important provision of the Rules of Professional Conduct for Attorneys at Law. Recognizing that this court makes final decisions on disciplinary proceedings and should not normally file complaints, I would only ask if the alternatives of prosecution or professional discipline are intended to be anything but non-applied justifications for denial of economic justice. If that is not true, then where does the trial court, the state bar itself and particularly the office of the attorney general come to grips with the responsibilities of Rule 8.3. 15 Members of the office of the attorney general are also subject to the constraints and *1314 requirements of the Rules of Professional Conduct for Attorneys at Law as members of the Wyoming State Bar. 16
A standard of morality is assumed for insulation of the public official (prosecutor) for liability from constitutional injury that cannot be constitutionally constrained within the function versus conduct dichotomy. A clear recognition is afforded by Ryland v. Shapiro, 708 F.2d 967 (5th Cir.1983), where allegations involved prosecutorial falsification of death certificate and a cover up of a murder. “Characterizing these actions as akin to those traditionally undertaken by officers of the court (which would entitle them to assert absolute immunity) would make a mockery of the judicial system.” Id. at 975 . I would likewise reflect that conspiracy to and suborning perjury for issuance of a probation revocation warrant is no less a mockery of both the judb ciary and the lawyers who serve with distinction as the state’s prosecutorial attorneys. Control of the unusual misconduct promotes both the image and the justification for the entire profession. Id. at 976 .
[Cjlaims of mental and emotional distress, if proven, can support an award of compensatory damages. * * * Moreover, the societal interest in deterring or punishing violators of constitutional rights supports an award of punitive damages even in the absence of actual injury. * * * Finally, an award of nominal damages may support an award of attorney’s fees under section 1988.
Id. at 976 .
The federal court creation of immunity to carve out an exception to Section 1983 liability for prosecutorial violation of an individual’s civil rights, although very new in time in adjudicatory history, now has a *1315 complex definitional outer perimeter. In concept, it is defined as the core proceeding for prosecution requiring the application of the advocate’s particularized responsibility. The broad language used obviously implemented to similarly continue to justify judicial immunity belies the necessity to confine and characterize where the advocate loses his mantle in collateral functioning. In the cases, words get in the way of reasoning and logic.
The principle of justified immorality for the prosecutor by the beneficial insulation of absolute immunity is stated in Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir.1984), cert. denied 469 U.S. 1127 , 105 S.Ct. 810 , 83 L.Ed.2d 803 (1985):
The fact that inducing false testimony is wrongful and indefensible is not relevant to the question whether immunity attaches. Underlying the doctrine of absolute immunity is a recognition that the advancement of broader public policies sometimes requires that concededly tor-tious conduct, no matter how reprehensible, go unremedied, at least by means of a civil action for damages.
In my unwillingness to accept this standard of conduct for Wyoming lawyers, one is called to wonder when the author of the opinion last read the statutes of the State of California, the federal code relating to crimes which can be committed, even by public officials, and the code of ethics which relate both to judges and lawyers. See ABA Code of Judicial Conduct § 3 D(2) (Discussion Draft Revisions May 1, 1989), which states:
A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct * * * should take appropriate action and, if the violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate authority.
See also the comparable version found in Wyoming’s Code of Judicial Conduct, 3 B(3) and Commentary (1979):
(3) A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.
* * * Disciplinary measures may include reporting a lawyer’s misconduct to an appropriate disciplinary body.
One would also wonder, if looking at the examination of the next seated applicant during the admission examination is cause for a lifetime denial of opportunity to practice law, Application of Corrigan, 47 Ohio St.3d 32 , 546 N.E.2d 1315 (1989), what would be the proper relative responsibility for the wrongful and indefensible conduct recited in Demery, 735 F.2d 1139 ?
My justification for mucking through the morass of the law of alleged governmental agent misconduct and judicial self-justification as defined first for Section 1983 when applied in Wyoming and secondly for the Wyoming Constitution when applied in Wyoming is to establish some boundary criteria. Analysis requires two different resolutions since a character of lawyer advocate conduct sanitized by the federal courts cannot necessarily be acceptable in the state judiciary where this court, constitutionally, has the primary responsibility for the application and preservation of the Wyoming Constitution, supervision of the Wyoming practice of law and the general responsibility for the justice delivery system within the three branches of government pursuant to Wyo. Const, art. 2, § 1, Distribution of Powers. Consequently, the standards of behavior for lawyers and advocacy is the direct responsibility of this court and, as such, is identically applicable not only to lawyers in private practice, but also to governmental lawyers in advocacy in behalf of the state of Wyoming in general, prosecuting attorneys in representation of the state for criminal proceedings and the defense bar in criminal cases who are state agents by virtue of participation under the public defender program.
VI. WHY THE MAJORITY IS WRONG
I find the majority wrong first in its application of this case to Section 1983 federal standards and more expressly wrong about standards of advocacy conduct acceptable within the Wyoming Constitution. *1316 Finally, I assess judicial error in ignored direct responsibility for the state constitution and its preservation.
In analysis, we need to repeat the factual scenario with which this case is elucidated by a motion to dismiss status.
1. A knowingly perjurious statement in official form was prepared by a parole officer.
2. The perjured statement was knowingly prepared by the parole officer at the direction of the assistant county attorney.
3. The document was prepared within the jurisdiction of the parole officer to accomplish the arrest and confinement of a person on parole who was not within the jurisdictional responsibility of that particular parole officer.
4. The parole officer sent the perjured document to the prosecuting attorney for the prosecuting attorney’s purpose in filing an order to secure an immediate arrest and a subsequent revocation of probation.
5. The prosecuting attorney knowingly filed the perjured document in order to, and did, secure a warrant for the arrest of the damaged individual.
6. The individual was arrested and taken to the jail in Cody.
7. The prosecuting attorney was advised that the individual should be released since the proceeding was improper.
8. Without hearing or appearance before any member of the judiciary, the individual was held in jail for thirty-eight days before appearance and release by judicial action.
If these facts are accurate in addition to clear felonies committed by both the parole officer and the prosecuting attorney plus serious ethical misconduct of various kinds by the prosecutor, there should be no doubt of a constitutional violation of a protected right under the Wyoming Constitution guaranteed to Cooney. I do not believe that even if the federal courts generally countenance commission of felonies by prosecutors, cf. United States v. Omni Intern. Corp., 634 F.Supp. 1414 (D.Md.1986), the outer limits of the immunity umbrella would be extended to the prosecutor’s solicitation of the preparation, execution and acknowledgement of a false government document by another governmental official.
I establish the external line even for Section 1983 at a point later than when the prosecutor directs and solicits the execution of a false and perjurious document before arrest and the initiation of proceedings has ever commenced. Within this continuum, even under Section 1983, the prosecutorial conduct of White in initiation and direction for document preparation to secure arrest is not immunized when based on facts included which were knowingly false and perjurious. It is not believed that even the federal courts will accept that character of felonious conduct by a public official to be a core proceeding as an advocate in the prosecuting of a criminal case. Hampton v. Hanrahan, 600 F.2d 600 (7th Cir.1979), rev’d on other grounds 446 U.S. 754 , 100 S.Ct. 1987 , 64 L.Ed.2d 670 , reh’g denied 448 U.S. 913 , 101 S.Ct. 33 , 65 L.Ed.2d 1176 , reh’g denied 448 U.S. 913 , 101 S.Ct. 33 , 65 L.Ed.2d 1177 (1980); Joseph v. Patterson, 795 F.2d 549 (6th Cir.1986), cert. denied 481 U.S. 1023 , 107 S.Ct. 1910 , 95 L.Ed.2d 516 (1987).
The second difference I take with the majority is to ever extend immunity in Wyoming where violation of the Wyoming Constitution is considered for conduct which is either criminal or constitutes a serious violation of legal ethics by the governmental official. In other words, I will not accept immunizing, suborning perjury, blackmail, alteration of documents, etc. even if within the context of trial preparation and presentation as a criteria of the core proceeding. ' In this regard, I would apply the same rule for defense counsel representing the state in criminal defenses, state’s attorneys representing the state in any general litigation, and the prosecuting attorney representing the state in criminal proceedings.
We note, however, that this cloak of immunity is limited to the attorney’s performance of regular advocacy functions, and like the immunity afforded prosecutors, does not extend to intentional misconduct accomplished outside of the *1317 scope of the attorney’s function as an advocate for the state. See Imbler, 424 U.S. at 429 , 96 S.Ct. at 994 ; Tower v. Glover, 467 U.S. 914, 923 , 104 S.Ct. 2820, 2826 , 81 L.Ed.2d 758 (1984) (state public defenders are not afforded absolute immunity for intentional misconduct by virtue of alleged conspiratorial action which deprives their clients of federal rights). The immunity envisioned by the common law, and discussed by the Supreme Court, attaches only to those activities within counsel’s normal duties as an advocate for his or her client. When an attorney goes beyond those boundaries and commits an act of intentional misconduct, the protections of absolute immunity no longer apply. Tower, 467 U.S. at 921 , 104 S.Ct. at 2825 . See Williams v. Hartje, 827 F.2d 1203, 1208-10 (8th Cir. 1987) (The advocacy function entails preparatory and other activity outside of the courtroom undertaken “within the role of advocate.” In drawing the line between absolutely immune and other activities, the important consideration is not whether the act was one which could be done only by an advocate but whether an act is closely related to the role of the advocate.)
Murphy, 849 F.2d at 1105 .
I argue that this court should not adopt the Imbler litany of excused misconduct where criminal or serious ethical misconduct exists, except to the most confined extent required to apply federal criteria to the federal statute and then only to the Section 1983 claim. Consequently, this court is in error in extending the assumed Imbler immunity to a state responsibility under the state constitution.
There is yet a third reason why the majority is in error within these particularized facts. The statutory provision for probation revocation is not a direct prosecuting attorney responsibility. Admittedly, this court has created a judicial revocation process independent of statute where the prosecutor becomes a direct player. However, in this case, the revocation proceeding chosen was statutory and, as such, could have been processed without any involvement of the prosecuting attorney through parole officer direct filing. This was not a prosecution where the prosecuting attorney had sole responsibility. Consequently, here, that Park County official only served as an adviser and volunteer assistant in a proceeding initiated by a state office and official for which he did not necessarily have to take any direct responsibility. I do not accept contention that the prosecuting attorney has immunity in telling the parole officer to prepare, sign and swear to a false document which, within the parole officer’s responsibility, will serve to obtain the incarceration of someone who both participants know is not at fault or subject factually to probation revocation.
Consequently, for three reasons, the majority is substantively in error. First by extending Imbler beyond core proceedings; second by extending the outer reaches of Imbler to the Wyoming constitutional protection; and third by extending Imbler to a probation officer revocation document where the prosecutor was not directly responsible for providing the initial action.
It is fair to rationalize that if something like this ever occurred before, and if it really did happen here, it will not reoccur after this opinion. In 1989 and 1990, the lawyer disciplinary process of Wyoming is more organizationally attenuated to respond to the misconduct of the profession and recognition has occurred for the potential criminal responsibility when an attorney participates in the preparation of false documents. State v. Neilson, Seventh Judicial District, Natrona County, State of Wyoming. This case may not bring justice or equity to Tom and Lora Cooney nor even properly determine what did occur and what responsibility did exist, but a message should be indelibly communicated that if civil liability responsibility is denied for official misconduct of an egregious nature, worse punishment may and should be provided.
VII. ALTERNATIVE RIGHT FOR REGRESS WHEN A PUBLIC OFFICIAL CAUSES DAMAGE IN VIOLATION OF THE STATE CONSTITUTION
There is a basic reason why this court is in error by affirming the dismissal of the *1318 case by sustaining the motion to dismiss without leave reserved to Cooney to file an amended complaint. Admittedly, Cooney only indirectly alleged facts which directs attention to a course of conduct implicating a violation of rights guaranteed by the Wyoming Constitution. I would perceive that with arguable violations of the United States Constitution and consequent disposition of the Section 1983 claim by a motion to dismiss, Cooney should have been reserved a further right to amend to protest violations of his state constitutional interests which could not have been substantively extinguished by the state tort claims act which, in its terms, is not addressed to a constitutional rights violation.
The near magnetic attraction to the federal judiciary, including categorically the United States Supreme Court for sta-tism,
17
over individual rights is here personified in this occupational immunity. This is not only in contravention of Chief Justice John Marshall’s directive in Mar-bury v. Madison, 1 Cranch 137 , 5 U.S. 137, 163 , 2 L.Ed. 60 (1803), in disregard of English law precedent, but also in apparent ignorance of world history even as more recently provided by the saga of totalitarian government emergence post-World War I with disintegration of the old order. Factually unjustified and precedentially unsupported, except as an accelerating growth, occupational immunity from responsibility for injury defines primarily only by its expansive growth any justification for its intrinsic .iexistence. The comparable systematology within government to human cancer is not unnoticeable.
Governmental immunity or public officer privilege rests on a faulty and fallacious conceptual justification as only recently growing like thistles on the American governmental and judicial landscape. Error was initiated by judicial creation of judicial immunity and followed by that cancerous expansion as, for example here, to the pros-ecutorial function as pseudo-judicial. The proper foundational justification for non-liability of agents of government arises from the discretional nature of the responsibilities performed. The judge’s judicial decision, Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967), cf. Pulliam v. Allen, 466 U.S. 522 , 104 S.Ct. 1970 , 80 L.Ed.2d 565 (1984); the parole board’s release decision, Hurst v. State, 698 P.2d 1130 (Wyo.1985), cf. Grimm, 564 P.2d 1227 ; the president’s national welfare decision, Nixon v. Fitzgerald, 451 U.S. 731, 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982); and the legislator’s legislative activities, Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 , reh’g denied 342 U.S. 843 , 72 S.Ct. 20 , 96 L.Ed. 637 (1951); Clear Lake City Water Authority v. Salazar, 781 S.W.2d 347 (Tex.App.1989), are properly protected from litigative attack because of the nature of the decisional responsibilities and not because the officer holder has been given a stature above the constitution as the basic law of society.
Exhaustive scholastic examination of the institutional expansion of the individualized privilege to harm without responsibility within the government by the general immunities, qualified and absolute, has attracted comprehensive scholastic analysis. The frustration and disdain of writers for the adversarial effect of immunity on individual rights is personified by the titles. Representative writings not otherwise specifically cited in this dissent include Barrett, Police Practices and the Law — From Arrest to Release or Charge, 50 Calif.L. Rev. 11 (1962); Beermann, Government Official Torts and the Takings Clause: Federalism and State Sovereign Immunity, 68 B.U.L.Rev. 277 (1988); Burke & Burton, Defining the Contours of Municipal Liability Under )2 U.S. C. § 1983: Monell Through City of Canton v. Harris, 18 *1319 Stetson L.Rev. 511 (1989): Eisenberg & Schwab, The Reality of Constitutional Tort Litigation, 72 Cornell L.Rev. 641 (1987); Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323 (1952); Hundt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 N.W.U.L.Rev. 770 (1975); Jaron, The Threat of Personal Liability Under the Federal Civil Rights Act: Does it Interfere with the Performance of State and Local Government?, 13 Urb.Law. 1 (1981); Kates & Kouba, Liability of Public Entities Under Section 1983 of the Civil Rights Act, 45 So.Cal.L.Rev. 131 (1972); Mead, 1$ U.S.C. § 1983 Municipal Liability: The Monell Sketch Becomes a Distorted Picture, 65 N.C.L.Rev. 517 (1987); Schnapper, Civil Rights Litigation After Monell, 79 Colum.L.Rev. 213 (1979); Shapo, Constitutional Tort: Monroe v. Pape, and the Frontiers Beyond, 60 N.W.U.L. Rev. 277 (1965); Zagrans, “Under Color of’ What Law: A Reconstructed Model of Section 1983 Liability, 71 Va.L.Rev. 499 (1985); Comment, Civil Rights. Malley v. Briggs: Application to the Harlow Objective Reasonableness Test to Section 1983 Liability for Police Officers, 29 Ariz.L. Rev. 333 (1987); Comment, Oregon’s Discretionary Interpretation of Discretionary Immunity, 22 Willamette L.Rev. 147 (1986); Comment, Civil Rights: Discarding Section 1983 Municipal Immunity— Is That Enough? Monell v. Department of Social Services, 98 S.Ct. 2018 (1978), 30 U.Fla.L.Rev. 979 (1978); Note, Qualified Immunity — Public Officials Will Lose Qualified Immunity Where the Constitutional Rights Were Clearly Established at the Time of the Violation But Not For Violation of a Statute or Regulation Unless the Statute or Regulation Itself Creates the Protected Right. — Davis v. Scherer (US.1984), 34 Drake L.Rev. 873 (1984-85); Note, Monell v. Department of Social Services: A Supreme Court Adoption of Lower Court Exceptions, 1979 Utah L.Rev. 251 (1979); Note, Municipal Liability Under Section 1983: The Meaning of “Policy or Custom”, 79 Colum.L.Rev. 304 (1979); Note, From Monroe to Monell: Eliminating Absolute Municipal Immunity Under § 1983, 30 Mercer L.Rev. 747 (1979); Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv.L.Rev. 1486 (1969); and Recent Development, Lynch v. Cannatella: An Inconsistent Application of Qualified Immunity, 62 Tulane L.Rev. 820 (1988).
A couple of lines from Gressman, supra, 50 Mich.L.Rev. at 1358 (quoting To Secure These Rights 149-173 (1947)), as a distinction from the idealism of Marbury, may be charismatic in description:
“[I]n one sense, the actual infringements of civil rights by public or private persons are only symptoms. They reflect the imperfections of our social order, and the ignorance and moral weaknesses of some of our people.”
After assessment of this quantum of research, analysis and composition, one has cause to wonder where we are and why we got here with privilege to injure — immunity from responsibility as related to what Justice Miller said just over a century ago in United States v. Lee, 16 Otto 196 , 106 U.S. 196, 220 , 1 S.Ct. 240 , 27 L.Ed. 171 (1882):
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.
Most recent law journal and legal periodical scholarship include Gildin, Immunizing Intentional Violations of Constitutional Rights Through Judicial Legislation: The Extension of Harlow v. Fitzgerald to Section 1983 Actions, 38 Emory L.J. 369 (1989); Manak, Update on Absolute/Good Faith Immunity, 23 The Prosecutor 5 (1989); Schwartz & Mahshigian, In the 1990’s the Government Must be a Reasonable Person in its Workplaces: The Discretionary Function Immunity Shield Must be Trimmed, 46 Wash. & Lee L.Rev. 359 (1989); Tribe, Revisiting the Rule of Law, 64 N.Y.U.L.Rev. 726 (1989); Comment, Anderson v. Creighton and Qualified Immunity, 50 Ohio St.L.J. 447 (1989); Comment, Qualified Immunity for Law Enforcement Officials in Section *1320 1983 Excessive Force Cases, 58 U.Cinn.L. Rev. 243 (1989); Note, The Yonkers Case: Separation of Powers as a Yardstick for Determining Official Immunity, XVII Fordham Urb.L.J. 217 (1989) (see, however, Spallone v. United States, — U.S. -, 110 S.Ct. 625 , 107 L.Ed.2d 644 (1990), demonstrating that the author guessed totally wrong); Note, Section 1983: Absolute Immunity For Pretrial Police Testimony, XVI Fordham Urb.L.J. 647 (1988); and The D.C. Circuit Review September 1987-August 1988, 57 Geo.Wash.L.Rev. 1342 (1989).
The authoritative text, B. Gershman, supra, should not be ignored. In introduction, Gershman states:
This book is about the use and abuse of power by one of the most influential figures in the American governmental system. Although not a member of the legislative or judicial branches, this official exercises broad lawmaking and adjudicative powers. Although technically a member of the executive branch, this official operates autonomously and independently and is usually accountable only to the public. Whether rural or urban, local or federal, elected or appointed, this official is glamorized by the media and diabolized by his foes. This figure is the public prosecutor, and he has the power to make decisions that control and even destroy people’s careers, reputations, and lives. Any comprehensive and systematic understanding of the criminal justice system must take account of the central role of the prosecutor.
A study of the prosecutorial process is fascinating and frustrating. As a longtime prosecutor, defense attorney, and law professor, I have always believed that the prosecutor’s task is more exacting than that of any other public officer. More than any other official, the prosecutor is required to serve two masters — society and justice. * * *
⅜ # ⅜ * sfc jfc
Two major themes emerge from this book. First, it becomes inescapably clear that the prosecutor, for good or ill, is the most powerful figure in the criminal justice system. * * *
The second theme is probably the most significant in terms of long-range reform. Restraints on prosecutorial misconduct are either meaningless or nonexistent. Relatively few judicial or constitutional sanctions exist to penalize or deter misconduct; the available sanctions are sparingly used and even when used have not proved effective. Misconduct is commonly met with judicial passivity and bar association hypocrisy.
Id. at vii-ix.
Considering this comprehensive history and exhaustive scholarly authority, it is time that state courts recognize a requirement of fidelity to the state constitution in principal responsibility to assure validity to the guarantees to the state’s citizens. Cursory supplication to the waning protection afforded by the United States Constitution through current decisions of the highest court of the federal system can no longer meet the fealty demanded by the oath of office of what the state supreme court justices owe to the state constitution. Consequently, when addressing suborned perjury to incarcerate an innocent victim by a public official, I cannot escape personal responsibility to the Wyoming State Constitution or surrender by temporizing denial by unthoughtful adaptation of whatever temporary mores may be applied by the United States Supreme Court to federal legislation.
I am led in this persuasion by an unquestionable bedrock principle of constitutional government that the legislature need not, and in fact cannot, act contrarily in order to deny to the judiciary the right to provide a remedy for government violation of constitutional rights. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), by foundational construction of the original philosophy initially developed by Chief Justice Marshall, the United States Supreme Court provided a direct constitutional remedy for violations by the government of constitutional guar *1321 antees afforded in the United States Constitution.
I find no need for the application of W.S. 1-31-101 through 1-31-130, and, in fact, no exclusion by whatever such an act may or may not do to discern that this court, in exercise of its oath, must provide a right for protection to our citizens from constitutional depravation by the government or its employees. 18 Consequently, we can only meet that responsibility by providing a state Bivens right for redress of constitutional violation. 19 The Section 1983 remedy is, today, in its nadir, if not in obsolescence and impotency. Call then reoccurs for the state judiciary to recognize the empirical responsibility required within the state constitution. The non-legislative answer of the federal system of Bivens is an obvious answer to accord real meaning to the state constitutional guarantees and imperatives. Any constitution which can be ignored by judicial inaction or legislative denial of implementing processes is no constitution and the action or inaction will prostitute and demean the government itself. The clarion question of why we so often need to apply to Uncle Fed to provide can more persuasively and justiciably be answered by our own activity and ingenuity. The thesis presented that citizen’s rights within the state constitution are not without substance, even if not enforced by federal legislation, has realistic precedent by previous use of the Bivens remedy for the state court to enforce the rights independent of the federal civil rights action and proceeding. These concepts, although not yet to have predominated because of the preferential posture of past federal remedies, can now be cultivated to further the well-being of our citizens in a realistic recognition of the state’s function in the federal system for the mutual protection of the state’s constitutional guarantees.
What this means is that for the protection of state constitutional rights, if depra-vation or denigration from state employees occurs, the state Bivens cause of action should be available under the constitutional imperatives of our state constitution. Immunity cannot, in itself, as a non-constitutional function, amend out of societal rights for protection the guarantees which are provided within the state constitution. This is true no less nor no more than a like thesis which was developed in the federal judiciary by adaptation of a process and right for justiciability in Bivens . To paraphrase the oracle or ogle of the professional immunities, if it would be monstrous for the federal government not to protect citizens from denudation by federal employees, it is no less monstrous for this court to reject its willingness and our oath of office to provide a similar right within the state against denudation of constitutional rights by employees of the state.
We should then look, as Cooney was unconstitutionally incarcerated by conspiratorial perjury of public employees, where the contours of a Bivens state cause of action could be most adequately illuminated and implemented. In Bivens , a model was created by announcement that a federal right of action was defined for which damage was recoverable from federal agent violation of constitutional guarantees (Fourth Amendment rights in that case). In denial of the governmental posture that no right to enforce existed, the opinion said:
We think that respondents’ thesis [that rights to redress could only be found under state tort law] rests upon an unduly ° restrictive view of the Fourth *1322 Amendment’s protection against unreasonable searches and seizures by federal agents, a view that has consistently been rejected by this Court. Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting— albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own. Cf. Amos v. United States, 255 U.S. 313, 317 [ 41 S.Ct. 266, 267-68 , 65 L.Ed. 654 ] (1921); United States v. Classic, 313 U.S. 299, 326 [ 61 S.Ct. 1031, 1043 , 85 L.Ed. 1368 ] (1941). Accordingly, as our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” Bell v. Hood, 327 U.S., at 684 [ 66 S.Ct. 773, 777 , 90 L.Ed. 939 (1946) ] (footnote omitted); see Bemis Bros. Bag Co. v. United States, 289 U.S. 28, 36 [ 53 S.Ct. 454, 457 , 77 L.Ed. 1011 ] (1933) (Cardozo, J.); The Western Maid, 257 U.S. 419, 433 [ 42 S.Ct. 159 , 161, 66 L.Ed. 299 ] (1922) (Holmes, J.).
Bivens, 403 U.S. at 391-92 , 91 S.Ct. at 2002 .
In reciprocity, I now find equivalent opportunity and responsibility for adjustment of remedies by the state judiciary and particularly so since one would be foolhardy to confine remedial expectations only to the fortuities of the federal civil rights act as now under the severest of pressure in current adjudicatory direction. The Bivens constitutional tort was considered but not applied in Melbourne Corp. v. City of Chicago, 76 Ill.App.3d 595 , 31 Ill.Dec. 914, 920 , 394 N.E.2d 1291, 1297 (1979) by analysis “to constitute a so-called ‘constitutional tort,’ defendant’s actions must constitute a knowing or malicious violation of Melbourne’s clearly established constitutional rights.” The failure to allege malicious action or invalid ordinance denied effectuation of the remedy. The outline for state use of a constitutional right remedy in state court was provided in Kewin v. Bd. of Ed. of Melvindale Northern Allen Park Public Schools, 65 Mich.App. 472 , 237 N.W.2d 514 (1975) and T & M Homes, Inc. v. Mansfield Tp., 162 N.J.Super. 497 , 393 A.2d 613 (1978), and in New Jersey, Strauss v. State, 131 N.J.Super. 571 , 330 A.2d 646 (1974) and Cashen v. Spann, 125 N.J.Super. 386 , 311 A.2d 192 (1973), cert. granted 65 N.J. 290 , 321 A.2d 251 (1974), aff'd in part, modified in part and remanded 66 N.J. 541 , 334 A.2d 8 , cert. denied 423 U.S. 829 , 96 S.Ct. 48 , 46 L.Ed.2d 46 (1975).
A school teacher mandatory maternal leave complaint was addressed in Kewin, 237 N.W.2d at 519-20 , where the court sustained the damage award by statement in denying the challenge to reversal:
We reject these challenges to the judgment but admit that we are not entirely satisfied in requiring the Board to pay damages. We would, however, be less satisfied in denying plaintiff compensation. Her rights were clearly violated; she suffered economic loss as a result, losses well established in the court below. Even though the constitutional claim may be one of first impression, courts should award compensation where there is an infringement of personal interests in liberty. Cf, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971).
The court in T & M Homes, Inc., 393 A.2d 613 similarly applied the Bivens concept to provide “another remedy.” That case also has value in the analysis that *1323 constitutional rights cannot be denied by passage of state legislation, albeit in that case founded upon the existence of the federally guaranteed constitutional interest. It should be similarly recognized here that state tort claim acts do not amend the state constitution to deny nor denigrate basic guarantees inculcated into our society’s basic structure by the constitutional declaration. 20
Immunity cases of whatever brand of weed grow from a common seed fertilized by denial of rights to the injured from depravation or injury committed by agents of the state. 21 The basic thesis of the intrinsic constitutional tort is that inaction by legislature or executive cannot deny the judicial responsibility under the state constitution to support, obey and defend the constitution, Wyo. Const, art. 6, § 20, as the oath of office. Wyo. Const, art. 1, § 8 cannot be applied to permit constitutional extinguishment by legislative inaction where the rights granted as in themselves are at stake. As Wyo. Const, art. 1, § 6, Due Process of Law, states: “No person shall be deprived of life, liberty or property without due process of law.” That due process and the right of Wyo. Const, art. 1, § 8 that “[a]ll courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay,” are the societal heritage of the judiciary by which our rights are defined and our oath of office is taken. A similar analysis was developed in Smith v. Whitehead, 436 A.2d 339 (D.C.App.1981) (reh’g granted and opinion vacated 1/5/82) in adaptation of Bivens for a District of Columbia remedy. The case is interesting in analysis but questionable in precedent by virtue of its succeeding history of the panel trial court affirmance and subsequent en banc equally divided posture in review, but the Bivens issue was not the subject of the extensive judicial disagreement reflected in the divergent judicial views.
I do not perceive that the majority thoughtfully extends sovereign immunity or even prosecutorial immunity to actions of the public official that violates the constitution of a state under which the oath of office is taken by not only the jurist but by the office holder. The contours of this consideration and its persuasion for present application requires analysis of the recent case, Smith v. Department of Public Health, 428 Mich. 540 , 410 N.W.2d 749 (1987), cert. granted sub nom. Will v. Michigan Department of State Police, 485 U.S. 1005 , 108 S.Ct. 1466 , 99 L.Ed.2d 696 (1988), judgment aff'd sub nom. Will v. Michigan Department of State Police, — U.S. -, 109 S.Ct. 2304 , 105 L.Ed.2d 45 (1989). What the Michigan Supreme Court did must be distinguished from what was included in the affirming United States Supreme Court decision. Leaving aside the Will v. Michigan Dept. of State Police, — U.S. -, 109 S.Ct. 2304 , 105 L.Ed.2d 45 (1989) issue of the state as a person under Section 1983, the Michigan Supreme Court, in a very splintered decision, resolved in memorandum statement within the opinion:
5) Where it is alleged that the state, by virtue of custom or policy, has violated a right conferred by the Michigan Constitution, governmental immunity is not available in a state court action.
6) A claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases.
⅝ * # ⅝ ⅝ ⅜
* * * We affirm the Court of Appeals affirmance of the denial of summary judgment as to the plaintiffs Michigan constitutional claims, and direct the Court of Claims, on remand, to determine whether a violation of the Michigan Con *1324 stitution by virtue of a governmental custom or policy has been alleged; whether such a violation occurred; and, if it occurred, whether it is one for which a damage remedy is proper.
Smith, 410 N.W.2d at 751 . A majority of four of the court determined that governmental immunity did not apply to violations of the Michigan Constitution. Despite the stridency of the lead opinion which did not garner a majority of concurrence, that writer and the justice concurring lost a battle with the majority of the court maintaining and affirming the motion for summary judgment on the issue of non-immunity for constitutional violation of the Michigan Supreme Court. Justice Boyle, concurring in part and dissenting in part, stated:
The defendant moved for summary judgment on the basis that the state is immune from liability for plaintiffs injuries. The Court of Claims found governmental immunity inapplicable to the constitutional tort * * *. We agree * * *.
⅜ ⅝ ¡H ⅜: ⅜ *
Assuming the plaintiff proves an unconstitutional act by the state which is otherwise appropriate for a damage remedy, the question which confronts this Court is whether sovereign or governmental immunity shields the state from liability for damages for its alleged acts which violate our state constitution. We would hold that neither common-law sovereign immunity nor the governmental immunity * * * bars recovery.
In our constitutional form of government, the sovereign power is in the people, and “[a] Constitution is made for the people and by the people.” Michigan Farm Bureau v. Secretary of State, 379 Mich. 387, 391 , 151 N.W.2d 797 (1967) (quoting Cooley, Constitutional Limitations [6th ed.], p. 81). The Michigan Constitution is a limitation on the plenary power of government, and its provisions are paramount. * * * It is so basic as to require no citation that the constitution is the fundamental law to which all other laws must conform. All state public officers, legislative, executive, and judicial, are required by Const. 1963, art. 11, § 1, to swear or affirm to support that same document.
* * Sfc * * Sfc
Neither does common-law sovereign immunity immunize the state from liability for its alleged unconstitutional acts. This Court abrogated common-law sovereign immunity in Pittman v. City of Taylor, 398 Mich. 41 , 247 N.W.2d 512 (1976). Even absent such general abrogation, however, we would decline to apply sovereign immunity to violations by the state of our state constitution. The curious doctrine of sovereign immunity in America, subject to great criticism over the years, see, generally, Jaffe, Suits against governments and officers: Sovereign immunity, 77 Harv.L.R. 1 (1963), should, as a matter of public policy, lose its vitality when faced with unconstitutional acts of the state. The primacy of the state constitution would perforce eclipse the vitality of a claim of common-law sovereign immunity in a state court action for damages.
In a case involving an alleged unconstitutional act by the state government, neither sovereign nor statutory immunity should bar liability. The injury arises from violation of a constitutionally protected right by the government, a right engendered by "the basic law which created and seeks to control that government.” Dellinger, Of rights and remedies: The constitution as a sword, 85 Harv.L.R. 1532, 1557 (1972). The primacy of the constitution must eclipse the power of immunity to countenance constitutional violations by the state without concomitant liability[ 22 ]
*1325 Smith, 410 N.W.2d at 793-95 (footnotes omitted).
Obviously, the principal effort of civil right and constitutional guarantee protection has not been directed to state constitutional implementation. However, at no time since the In re Slaughter-House Cases, 16 Wall 36, 83 U.S. 36 , 21 L.Ed. 394 (1872), see also the Virginia Coupon Cases, 114 U.S. 269 , 5 S.Ct. 903 , 29 L.Ed. 207 (1885) and, in particular, White v. Greenhow, 114 U.S. 307 , 5 S.Ct. 923 , 29 L.Ed. 199 (1885) and their protegee of more than a century ago, has the basic commitment of the federal judiciary to maintenance of constitutional guarantees been so completely in doubt. It is now time for the state jurists to look first at their oath of office and then renew responsiveness and responsibility of the system to the state constitution and the rights that it directly guarantees. Gerhardt, The Ripple Effects ■ of Slaughter-House: A Critique of a Negative Rights View of the Constitution, 43 Vand.L.Rev. 409 (1990).
Overtly, the decision is to define the level of responsibility of public officials where misconduct is no longer insulated. Affixed to that decision is the corollary decision whether we are bound or abjectly follow the decisions of the United States Supreme Court in its attitudinal application of federal remedies. The Supreme Court of Hawaii has said no and to a degree, other cases are found to provide a similar persuasion. It is neither novel nor new in this era for recognition to be afforded that state courts provide greater protection for constitutional rights of citizens than can be expected or is provided by the federal authority. The call was issued by a United States Supreme Court Justice, William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). See also Blackmun, Section 1983 and Federal Protection of Individual Rights— Will the Statute Remain Alive or Fade Away?, 60 N.Y.U.L.Rev. 1 (1985).
In my analysis, the foundational justification for immunity is totally without validity, logic or adjudicatory responsibility. The more basic concepts of duty, responsibility and discretion should be addressed to limit and define liability for fault by any actor within a public responsibility and not to create an unlimited barrier of responsibility to be assessed against public employees and governmental authorities for wrongful and unconstitutional conduct. Within these concepts, the line of protection from responsibility for wrongful injury is exceeded where malice, bad faith and malevolence is exhibited. 23 There is a fur *1326 ther fiction of undemonstrable justification found to pervade these prosecutorial and judicial immunity cases which, in essence, speaks not to justice but to prevention of the actor’s exposure from the justice delivery system. Fearfulness about being sued is afforded the luxury of a security blanket only to be available to certain performers in our society without recognition that the business man and the doctor equally share the same chill, and sometimes suffer pneumonia as well. 24
I also argue it is possible that the United States Supreme Court, even for the Section 1983 action, could hold Imbler more dependent on a particular state’s common-law than the treatment Imbler was accorded in Blake, 651 P.2d at 1099 . Imbler, 96 S.Ct. at 990 -95 holds that a state prosecutor is civilly immune because Congress could not have meant to alter state common-law immunities and defenses in passing what is today Section 1983, while Blake looks to Imbler 25 to complete the circular reasoning and holds a prosecutor absolutely immune to civil suit, no matter the basis of the suit. If Imbler applies to all state prosecutors because of state common-law immunity, 26 then the common-law in Hawaii would have to be disregarded for Section 1983 suits arising in Hawaii if Imbler applies to all states, since Hawaiian common-law rejects absolute immunity for prosecutors. A wholesale discounting of Hawaiian common-law would make the reasoning to Im-bler vacuous. Obviously, the United States Supreme Court is the final voice in deciding what is federal law and the extent to which federal law overpowers state law. Imbler is a product of that court. It is left unexplained how a federal court can grant state common-law immunity to prosecutors, if it does, for a Section 1983 action if the state in which the action arises does not grant absolute immunity to prosecutors. 27
There are three Wyoming cases which relate but do not mandate the decision made by the majority in this case. The principal case, invested in the broad language of Imbler, is Blake, 651 P.2d 1096 . My disdain and antipathy for the decision is otherwise expressed, but the case itself can be clearly distinguished within its facts on the determinative decision made. Blake, for whatever reason, as county attorney, filed a criminal complaint against the individual who had served as a juror on her earlier trials. This conduct, as a function, *1327 is within the prosecutorial core responsibility of the prosecuting attorney not only under Imbler, but also the longer existent principle that public prosecutors are not subject to malicious prosecution actions for filing within their elective office responsibility. Blake was not a Section 1983 case, but the jury verdict was adverse to the prosecutor in the issues of negligence in hiring and supervising her friend, the investigator, negligence in her investigation of the ex-juror, intentional infliction of emotional distress, violating the juror’s right to privacy and the quiet enjoyment of life by publicizing his prosecution.
Extending Blake to conduct suborning perjury in order to obtain a complaint for arrest does not appear justified here even by the broad language there used. I find no supposition in that case after my review of the appellate briefs and a careful consideration of the decision that any of the brief writers or this court in decision envisioned immunity for felonious conduct. No matter how efficiently this court acted to reverse that substantial, actual and punitive jury verdict against the prosecutor and her investigator, no rule within its ratio deci-dendi now extends to similarly insulate either White or Mayor. Imbler and Blake do not go to suborning perjury in initial complaint which constitute a police or probation officer function, not a prosecutorial responsibility. Robichaud v. Ronan, 351 F.2d 533 (9th Cir.1965). Coordinately, no discussion was provided in the negligence-malicious engendered complaint environment of Blake about criminal prosecution or disciplinary evaluation. See Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied 454 U.S. 816 , 102 S.Ct. 93 , 70 L.Ed.2d 85 (1981).
Hurst, 698 P.2d 1130 comes no closer to providing persuasive authority. The discretionary activities of the parole board in Hurst , although not universally granted absolute immunity, cf. Grimm, 564 P.2d 1227 , are not comparable to preparing false affidavits by public officials which is involved here. Hurst was decided on governmental immunity under the Wyoming Tort Claims Act by decision that these public officials — near volunteer as they are— were not law enforcement officers.
Petition of Padget, 678 P.2d 870 (Wyo. 1984), where a constitutional inquiry was involved, moves no closer. Petition of Padget held that the prosecutorial charging function assigned to the executive branch of government could not be inhibited by legislative grant of authority to the judiciary under the provence of Wyo. Const, art. 2, § 1, defining separation of powers. The case reveals that the legislature could not attach judicial supervision constituting an administrative responsibility on the prosecuting attorney who is an executive official. Consequently, the Wyoming statute disregarding that the charging decision is properly within the scope of duty to the executive branch, constituted a violation of Wyo. Const, art. 2, § 1 when grant was made for decision by the judiciary. Once the decision to prosecute has been made, then the judiciary becomes involved but not before. Right to obtain action when the prosecutor fails can be invested in an executive officer, but not the judicial branch. This standard recognition of the status and merits of separation of powers does not in itself provide immunity for misfeasance or malicious wrongfulness. That case does denigrate this present majority opinion since the judicial function is confined to a time later than initiation of prosecution— false affidavit to secure arrest warrant.
By historical development, the premiere case recognizing the responsibility of state enforcement of rights of the state constitution is Widgeon v. Eastern Shore Hosp. Center, 300 Md. 520 , 479 A.2d 921, 923-24 (1984), which states:
By Article 5 of the Maryland Declaration of Rights, all “Inhabitants of Maryland are entitled to the Common Law of England ... and to the benefit of such of the English statutes as existed on the Fourth day of July, Seventeen hundred and seventy-six_” Under the common law of England, where individual rights, such as those now protected by Article 26, were preserved by a fundamental document {e.g., the Magna Carta), a violation of those rights generally could be remedied by a traditional action *1328 for damages. The violation of the constitutional right was viewed as a trespass, giving rise to a trespass action.
The review is initiated with reference to an early England case:
One of the earliest cases to illustrate this point was Wilkes v. Wood, Lofft’s 1, 98 Eng.Rep. 489 (1793). In Wilkes, supra, the plaintiff recovered damages in a trespass action brought against an official in the office of the Secretary of State who entered his home and seized his papers upon an unlawful general warrant. Lord Pratt, in his instructions to the jury, acknowledged that the official had acted “contrary to the fundamental principles of the constitution," id. at 19, and stated that the jury could consider the illegal conduct in assessing damages.
Id. at 924 (emphasis in original). Widgeon continues with recognition of a constant principle of Maryland law to then find a Bivens analysis appropriate. It is stated with many supporting cases that “many state courts have recognized that an individual may redress a state or federal constitutional deprivation by instituting a damage action.” Widgeon, 479 A.2d at 928 . Quoted in Widgeon, 479 A.2d at 928 is Marbury, 5 U.S. at 163 , that “ ‘[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.’ ” (Citing Butz v. Economou, 438 U.S. 478, 485-86 , 98 S.Ct. 2894, 2899-2900 , 57 L.Ed.2d 895 (1978).) The court concluded that “ ‘[historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.’ ” Widgeon, 479 A.2d at 928 (quoting Bivens, 403 U.S. at 395-97 , 91 S.Ct. at 2004-05 ).
The thoughtful thesis of the responsive courts is illustrated by the Illinois Supreme Court in a search and seizure case, People v. Martin, 382 Ill. 192 , 46 N.E.2d 997, 1002 (1942):
It is our duty and the duty of all the officers of the state to enforce these constitutional rights preserved to the People, and especially so at a time when the exigencies of the country require the exercise of vast executive powers.
The philosophic purview of Martin was followed in Walinski v. Morrison & Morrison, 60 Ill.App.3d 616 , 18 Ill.Dec. 89 , 377 N.E.2d 242 (1978), but the court first recognized that no action should be dismissed by a motion to dismiss for failure to state a cause of action unless it clearly appears that no set of facts can be proven under the pleadings which would entitle a plaintiff to relief. The court then found that money damages were available as a remedy for the violation of a provision of the state constitution, even if the provision did not specifically provide for the remedy of damages. See likewise Newell v. City of Elgin, 34 Ill.App.3d 719 , 340 N.E.2d 344 (1976) which references Bivens for favorable authority to support a state remedy and also repeats the United States Supreme Court’s citation of Marbury. Similar authority is found in Bull v. Armstrong, 254 Ala. 390 , 48 So.2d 467 (1950); Mayes v. Till, 266 So.2d 578 (Miss.1972); and Terranova v. State, 111 Misc.2d 1089 , 445 N.Y.S.2d 965 (1982). In State v. Haley, 687 P.2d 305 , 318 n. 10 (Alaska 1984) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815 , 102 S.Ct. 2727, 2737 , 73 L.Ed.2d 396, 408 (1982)), in finding a state remedy for a legislative branch employee termination, the court found that “ ‘[qjualified or “good faith” immunity is an affirmative defense that must be pleaded....’” The California Supreme Court stated in Gay Law Students Ass’n v. Pacific Tel. & Tel. Co., 24 Cal.3d 458 , 156 Cal.Rptr. 14, 20 , 595 P.2d 592, 598 (1979), “although our court will carefully consider federal state action decisions with respect to the federal equal protection clause insofar as they are persuasive, we do not consider ourselves bound by such decisions in interpreting the reach of the safeguards or our state equal protection clause.”. The court found that a cause of action was stated against the public utility under the purview of a constitutional violation of the California Constitution referencing Bivens . A right of action to redress a constitutional deprivation in damage was also found by the Florida court in Schreiner v. McKenzie Tank *1329 Lines & Risk Management Services, Inc., 408 So.2d 711, 714 (Fla.App.1982):
The test to determine whether or not a constitutional provision is self-executing was clearly set out by our Supreme Court in Gray v. Bryant, 125 So.2d 846 (Fla.1960), and has been reaffirmed on numerous occasions. * * * In essence, we are directed by Gray to determine whether or not the sentence, “No person shall be deprived of any right because of race, religion or physical handicap,” sufficiently delineates “a rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment.” Gray, supra, at 851 . In our view, this provision of the constitution is quite direct and in need of no implementing legislation.
In Phillips v. Youth Development Program, Inc., 390 Mass. 652 , 459 N.E.2d 453, 457 (1983), the court stated “[w]e would grant, however, that a person whose constitutional rights have been interfered with may be entitled to judicial relief even in the absence of a statute providing a procedural vehicle for obtaining relief.” 28
I specifically do not accept the supposition that absolute immunity attends to the conduct of any public official in soliciting preparation of the perjurious document to accomplish an arrest or otherwise. Neither did the Nevada Supreme Court. In Edgar v. Wagner, 101 Nev. 226 , 699 P.2d 110, 112 (1985), the court applied a proper rule of review for a motion to dismiss that “[t]he complaint cannot be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no set of facts which, if accepted by the trier of fact, would entitle him to relief.” Then, in distinguishing Imbler, that court said:
Assuming, as we must at this juncture, respondent. participated in the preparation of the affidavit with malice, and in a deliberately structured effort to deprive appellant of due process, the allegations of the complaint state a claim which, if accepted by the trier of fact, could entitle appellant to relief. The district court erred in concluding such an act was a prosecutorial function cloaked with absolute immunity. Respondent cites no direct authority for the contention that the behavior at issue here falls within the scope of the absolute immunity endorsed by Imbler. We are persuaded that prosecutors will not be adversely affected in their discharge of public duties by the application of the qualified immunity where the allegations suggest malicious prosecution.
Edgar, 699 P.2d at 112 .
The allegation stated that the district attorney assisted an agent of the Nevada Department of Wildlife in the preparation of an affidavit supporting the issuance of a warrant for arrest with contents demonstrating malice. It surely cannot be questioned that a constitutional interest of freedom from incarceration and liberty is invaded by conspiratorial conduct which causes a false arrest. The constitutional right infringed of personal liberty is clearly established. Harlow, 457 U.S. at 807 , 102 S.Ct. at 2732 ; Schlegel v. Bebout, 841 F.2d *1330 937 (9th Cir.1988). The United States Supreme Court has substantively and specifically addressed this subject in considering probation and parole. Gagnon, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 ; Morrissey, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 ; Mempa v. Rhay, 389 U.S. 128 , 88 S.Ct. 254 , 19 L.Ed.2d 336 (1967). 29 Likewise for the qualified immunity, the objective standard of bad faith is met. Harlow, 457 U.S. at 807 , 102 S.Ct. at 2732 , 73 L.Ed.2d at 403 . As an example of objective reasonableness in the use of deadly force, see Zuchel v. Spinharney, 890 F.2d 273 (10th Cir.1989).
I believe that immunity from public responsibility for injury to a citizen can be confined to a proper perspective under the Wyoming Constitution. Suborning, creating or knowingly using perjury cannot be countenanced is our justice delivery system is to be accorded legitimacy and particularly so when conduct is authorized by one of our own as a member of the supervised bar. The morals of the gutter or excesses of the political arena cannot be justification for introduction as a standard in justice delivery for the sanctified jurist and the certified attorney. See Fanale v. Sheehy 385 F.2d 866 (2nd Cir.1967). “[T]he decisions of this court cited by my brothers do establish a broad rule of immunity. However, if we were writing on a clean slate, I feel that there would be some situations— although this case is not one of them — in which even ‘official’ acts of a prosecuting officer should not be protected by absolute immunity from civil liability.” Id. at 869 , Feinberg, J., concurring. See also Bauers v. Heisel, 361 F.2d 581, 594 (3rd Cir.1966), cert, denied 386 U.S. 1021 , 87 S.Ct. 1367 , 18 L.Ed.2d 457 (1967) (footnote omitted), Freedman, J., dissenting, speaking to a conferred quasi-judicial recognition within the prosecutor’s function:
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 the 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. It is in such an area, and to this extent only, that I would give recognition to the quasi-judicial aspect of the prose *1331 cutor's function/ 30 ^
See also Comment, Civil Rights — Section 1983 — Prosecuting Attorney Held Immune From Civil Liability for Violation of Civil Rights Act, 42 N.Y.U.L.Rev. 160 (1967). The author suggested a test from Kelley v. Dunne, 344 F.2d 129 (1st Cir. 1965) to “recognize a qualified or conditional immunity by permitting an action only upon a clear showing of ‘ “malice, corruption or cruelty” ’ and ‘ruthless indifference to a citizen’s rights.’ ” Comment, supra, 42 N.Y.U.L.Rev. at 165 (quoting Kelley, 344 F.2d at 135 ). The author anticipated that this “test would protect the reliable time of the official by providing for a summary judgment for the defendant unless the plaintiff could produce solid evidence that the officer’s acts were in excess of his powers and inspired by bad faith.” Comment, supra, 42 N.Y.U.L.Rev. at 165-66 (emphasis added.) Unfortunately, the author’s anticipated rule never found favor when the progression moved past qualified immunity for conduct to absolute immunity for function.
Without regard for the provinces of the federal Section 1983 action, a state remedy when a state official ignores or violates the state constitution should not be left by this court uncorrected and unaddressed by any ameliorative remedy.
VIII. WRONG ON SECTION 1983 PRECLUSION FOR THIS CHARACTER OF PROSECUTORIAL MISCONDUCT
The perspective of this case and the general character of prosecutorial misconduct raises two generic objections. I first recognize that the scope of Section 1983 embraces federal law as defined by federal courts, but involves state action and state limitations of permissible conduct. Consequently, I extend the constraints against responsibility of public officials for injury damage no further than absolutely required by the federal cases for Section 1983 only. Secondly, I find little theoretical providence in any general limitation imposed within the Section 1983 cases by the federal courts to reduce case load as their assumed responsibility in order to establish a state court standard addressing obligation of the state jurist to support, protect and obey the state constitution.
These theoretical postulates directly address whether a state official who occupies the powerful position provided by a democratic government should be immunized by immunity from responsibility for his or her commission of a significant criminal offense and/or a substantial breach of ethics as an officer in the court and in the practice of law. This means in introduction, since I do not accept immunizing suborned *1332 or solicited perjury before, during or after a trial, that I will not accept excuse by concepting solutions in non-expected criminal prosecution or professional disciplinary proceedings. The ancestor of the anything-goes-immunity defense was derived from a flight of language used in Gregoire, 177 F.2d at 581 , where it was “monstrous to deny recovery” but necessary to protect the wrongdoer. The court then said:
It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books.
Id. at 581 .
Although Gregoire was- written in 1949, the author unfortunately failed to confine the decision to the factual pathway of the case. Unfortunately, it was the Gregoire characterization inviting “monstrous” concomitant from which the societal damage resulted as deified in Imbler and not the clean issue of particularized war time related attorney general exercised responsibility. Gregoire was a bad post-war syndrome case, but as explainable then as was the Japanese relocation during the same war.
To understand the moral conviction and ethical persuasion of the vast parade of federal court cases, Gregoire invites relation to Omni Intern. Corp., 634 F.Supp. 1414 which involved a tax fraud indictment which, although resulting in extended court proceedings, never reached trial juncture. In discussion of the conduct of the internal revenue agents and the AUSA (Assistant United States Attorney) where the indictment was dismissed without prejudice, the words and phrases attributable to prosecution in the opinion included obstruction of justice, perjury, breach of attorney-client privilege, lack of candor, prosecutorial misconduct, altered records, investigative techniques, untrue and incorrect testimony, conflicting testimony (perjury in more blase terms), outrageous conduct, lack of recollection and failure to inform did in general or by combination appear near if not more than 100 times in the twenty-seven page opinion. 31 What was the total apparent punishment for observed criminal and ethical violations? All we know is:
In the event that the Government decides to seek another indictment in- this matter, an issue undoubtedly will arise about whether any of the Government prosecutors or investigators should be disqualified. Based on the misconduct described in detail throughout the opin *1333 ion, this Court has determined that the Special Agent, the Revenue Agent, and the AUSA involved in this litigation must not participate further in the prosecution of the case.
Id. at 1440 . As a “prophylactic sanction for the consistent course of entrenched and flagrant misconduct,” the “ ‘law in its majesty ... [cannot] be equally slimy.’ ” Id. at 1440 (quoting United States v. Valencia, 541 F.2d 618, 621 (6th Cir.1976)). Omni Intern. Corp. can be considered to be the Gregoire standard of prosecutorial excused conduct and shows its results for a practical application in the real world of the justice delivery system.
The reaffirmation of government responsibility first introduced in constitutional law by Marburg, then re-examined by adoption of the Fourteenth Amendment and the passage of the Ku Klux Klan Act of 1871, Section 1983 has encountered an endemic climate by 1990. 32 It is almost a progression from here to there starting with Ex parte State of Virginia, 10 Otto 339 , 100 U.S. 339, 346-47 , 25 L.Ed. 676 (1879) (emphasis in original):
Nor does it make any difference that such legislation is restrictive of what the State might have done before the constitutional amendment was adopted. The prohibitions of the 14th Amendment are directed to the States, and they are to a degree restrictions of state power. It is these which Congress is empowered to enforce, and to enforce against state action, however put forth, whether that action be executive, legislative, or judicial. Such enforcement is no invasion of state sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact. This extent of the powers of the General Government is overlooked, when it is said, as it has been in this case, that the Act of March 1, 1875, interferes with state rights. It is said the selection of jurors for her courts and the administration of her laws belong to each State; that they are her rights. This is true in the general. But in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power. Her rights do not reach to that extent. Nor can she deny to the General Government the right to exercise all its granted powers, though they may interfere with the full enjoyment of rights she would have if those powers had not been thus granted. Indeed, every addition of power to the General Government involves a corresponding diminution of the governmental powers of the States. It is carved out of them.
We have said the prohibitions of the 14th Amendment are addressed to the States. They are: “No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, * * * nor deny to any person within its jurisdiction the equal protection of the laws.” They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a state government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.
*1334 That philosophy is now singularly confined by the progression to Will, 109 S.Ct. 2304 . See Monell v. Department of Social Services of City of New York, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978); Monroe v. Pape, 365 U.S. 167, 187 , 81 S.Ct. 473, 484 , 5 L.Ed.2d 492 (1961), overruled on other grounds 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978) (“Section 1979 [now Section 1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions”); Barr v. Matteo, 360 U.S. 564 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 (1959); Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945); McNabb v. United States, 318 U.S. 332 , 63 S.Ct. 608 , 87 L.Ed. 819 , reh’g denied 319 U.S. 784 , 63 S.Ct. 1322 , 87 L.Ed. 1727 (1943); and Spalding v. Vilas, 161 U.S. 483 , 16 S.Ct. 631 , 40 L.Ed. 780 (1896); but then the trend for increasing protection of the individual ended and the converse movement then significantly started its continued movement to date, City of Canton, Ohio v. Harris, 489 U.S. 378 , 109 S.Ct. 1197 , 103 L.Ed.2d 412 (1989); DeShaney v. Winnebago County Dept. of Social Services, — U.S.-, 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989); Mitchell, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 ; 33 Baker v. McCollan, 443 U.S. 137 , 99 S.Ct. 2689 , 61 L.Ed.2d 433 (1979). Will, 109 S.Ct. 2304 , as the last outpost to date, completes the tidal wave of adjudicatory activities which demean and diminish the protection of individual right against acts of government. The cancerous dehabilitation provided by the official immunities has conjunctively overrun the rights to recover while the basic rights have sustained the devastation of the continued barrage of attack. Philosophically enunciated as a give-up by Judge Hand in Gregoire, 177 F.2d 579 and delineated in individual right benefit deterrent in Barr, 360 U.S. 564 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 , 34 official immunities are a historically recent creation by federal judicial action *1335 which developed with no accurate precedent that can be accurately described as a historical evolvement when compared to either the United States Constitution or the civil rights legislation of the 1870’s.
Contrails of the legislative and judicial immunity can only, among the quantities of occupational immunities now enunciated, .be traced any distance into American historical and English law, and not then to justify present developments. Otherwise, the entire development of official immunity can only be found as a product of case to case creations as adjudicatory legislation. Unfortunately, the state of Wyoming, in one long jump through the decision of this court in Blake, 651 P.2d 1096 and now re-engineered here in Cooney, does not only adopt for the federal remedy what the decisional law of the federal system controls, but also creates exceptions to the constitutional rights enumerated by the Wyoming Constitution as non-bendable principles. This court simply ignores the Wyoming Constitution by caressing statism and rejecting individual rights through its creation of official immunities.
That historical development in American law is informative, albeit philosophically unconvincing and distressing. More than eighty years after the adoption of the United States Constitution and shortly after the passage of the Civil Rights Act of 1871, judicial immunity was first created by recognition for federal law in Bradley v. Fisher, 13 Wall 335, 80 U.S. 335 , 20 L.Ed. 646 (1871). Even in that initial case, the dissent recognized the disconsonance in the holding:
I agree that judicial officers are exempt from responsibility in a civil action for all their judicial acts in respect to matters of controversy within their jurisdiction. I agree, further, that judges of superior or general authority are equally exempt from liability, even when they have exceeded their jurisdiction, unless the acts complained of were done maliciously or corruptly. But I dissent from the rule laid down by the majority of the court, that a judge is exempt from liability in a case like the present, where it is alleged not only that his proceeding was in excess of jurisdiction, but that he acted maliciously and corruptly. If he did so, he is, in my opinion, subject to suit the same as a private person would be under like circumstances.
Id. 13 Wall at 357, Davis, J., dissenting. Bradley was followed ninety-six years later by the rather ordinary judicial decision case of Pierson, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 and the not so ordinary dissent of Justice Douglas in recognition of the congressional prerogatives for legislating to be found in passage of the Ku Klux Klan Act as the Civil Rights Act of 1871.
I do not think that all judges, under all circumstances, no matter how outrageous their conduct are immune from suit under 17 Stat. 13 , 42 U.S.C. § 1983 . The Court’s ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common-law doctrine of judicial immunity, and does not follow inexorably from our prior decisions.
The statute, which came on the books as § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13 , provides that “every person” who under color of state law or custom “subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” To most, “every person” would mean every person, not every person except judges. Despite the plain import of those words, the Court decided in Tenney v. Brandhove, 341 U.S'. 367, [ 71 S.Ct. 783 , 95 L.Ed. 1019 ] that state legislators are immune from suit as long as the deprivation of civil rights which they caused a person occurred while the legislators “were acting in a field where legislators traditionally have power to act.” Id., at 379 [ 71 S.Ct. at 789 ]. I dissented from the creation of that judicial exception as I do from the creation of the present one.
*1336 Pierson, 386 U.S. at 558-59 , 87 S.Ct. at 1219-20 (emphasis in original), Douglas, J., dissenting.
The third judicial immunity case was not so ordinary where the judge ex parte, without any adjudicatory protection for the individual, “judicially” authorized sterilization of a teenage girl. By philosophic and moralistic agreement with what the dissent then said, I believe that “the scope of judicial immunity is limited to liability for ‘judicial acts,’ and I think that what Judge Stump did on July 9, 1971 [in authorizing the sterilization], was beyond the pale of anything that could sensibly be called a judicial act.” Stump v. Sparkman, 435 U.S. 349, 365 , 98 S.Ct. 1099, 1109 , 55 L.Ed.2d 331 , reh’g denied 436 U.S. 951 , 98 S.Ct. 2862 , 56 L.Ed.2d 795 (1978), Stewart, J., dissenting. Justice Stewart further said in answer to the five member majority opinion of the Burger court:
The Court finds two reasons for holding that Judge Stump’s approval of the sterilization petition was a judicial act. First, the Court says, it was “a function normally performed by a judge.” Second, the Court says, the act was performed in Judge Stump’s “judicial capacity.” With all respect, I think that the first of these grounds is factually untrue and that the second is legally unsound.
Id. at 365, 98 S.Ct. at 1109. The last case addressing judicial immunity is Pulliam, 466 U.S. 522 , 104 S.Ct. 1970 , 80 L.Ed.2d 565 , where even the supposition of injunc-tive contradiction of constitutional violation by the judicial fraternity and consequent responsibility for payment of attorney fees has provided a continuing firestorm particularly among the membership of the federal bench. Pulliam at least teaches that the all inclusive immunity is confined to a lawsuit for damages.
The preclusive judicial immunity established in Bradley, 80 U.S. 335 was followed by legislative immunity in Tenney, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 and created eighty years after passage of the Civil Rights Act. A parade of cases then followed either seeking absolute immunity or enhanced protectiveness in qualified immunity. This included school administrators in Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 , reh’g denied 421 U.S. 921 , 95 S.Ct. 1589 , 43 L.Ed.2d 790 (1975); state officials who directed the action of the National Guard against college students, some of whom were killed at the Kent State University shooting, Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974); and action of a cabinet official, Butz, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 . Butz, 438 U.S. at 490-91 , 98 S.Ct. at 2902-03 (footnote omitted), in review of the cases, was founded on the rather realistic sounding principle:
As these cases demonstrate, a federal official was protected for action tortious under state law only if his acts were authorized by controlling federal law. “To make out his defence he must show that his authority was sufficient in law to protect him.” Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 452 [ 3 S.Ct. 292 , 297, 27 L.Ed. 992 ] (1883); Belknap v. Schild, 161 U.S. 10, 19 [ 16 S.Ct. 443, 446 , 40 L.Ed. 599 ] (1896). Sine an unconstitutional act, even if authorized by statute, was viewed as not authorized in contemplation of law, there would be no immunity defense. See United States v. Lee, 106 U.S. 196, 218-223 [ 1 S.Ct. at 258-63 , 27 L.Ed. 171 ] (1882); Virginia Coupon Cases, 114 U.S. 269, 285-292 [ 5 S.Ct. 903, 911-915 , 29 L.Ed. 207 ] (1885).
That supposition, as a principle of responsibility, was not long to last when Harlow, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 and Briscoe v. LaHue, 460 U.S. 325 , 103 S.Ct. 1108 , 75 L.Ed.2d 96 , cert. denied 460 U.S. 1037 , 103 S.Ct. 1426 , 75 L.Ed.2d 787 (1983) followed. Harlow was surely one of the most significant appliances to affect a confinement of official responsibility for improper injury to the citizens in addressing the scope of immunity available for senior aids to the president of the United States as following Nixon, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 . In Nixon, the president was given absolute immunity and in Harlow , it was discerned that qualified immunity should constitute the norm. The significance of the case was to analyze both subjective and objective aspects of *1337 good faith. By assessment that subjective good faith could seldom be resolved by summary judgment and to make the litiga-tive proceedings summary judgment prone, Harlow adopted the test of reliance on the objective reasonableness of the official’s conduct as measured by reference to a clearly established rule of law. Unfortunately then with the most minimal perceptiveness of the real world, the majority author added:
By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official’s acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken “with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288 (1967).
Harlow, 457 U.S. at 819 , 102 S.Ct. at 2739 (footnote omitted). Briscoe, 460 U.S. 325 , 103 S.Ct. 1108 , 75 L.Ed.2d 96 provided witness immunity even for perjury at a criminal trial. In immunity creation, the court established a functional premise:
[0]ur cases clearly indicate that immunity analysis rests on functional categories, not on the status of the defendant. A police officer on the witness stand performs the same functions as any other witness; he is subject to compulsory process, takes an oath, responds to questions on direct examination and cross-examination, and may be prosecuted subsequently for perjury.
Moreover, to the extent that traditional reasons for witness immunity are less applicable to governmental witnesses, other considerations of public policy support absolute immunity more emphatically for such persons than for ordinary witnesses. Subjecting government officials, such as police officers, to damages liability under § 1983 for their testimony might undermine not only their contribution to the judicial process but also the effective performance of their other public duties.
Id. at 342-43, 103 S.Ct. at 1119 (footnote omitted). This is sarcastically identified as the license to lie, witness immunity justification. There may have been justification in the nature of the process and required participation, but the conjecture that if they lied, they should be immunized is hardly an inspiring answer. The pervasive fear of increased court business of public officials who demean and dishonor their profession became a hallmark of the Burger/Rehnquist court adaptation of immunity which then carried forward to Davis v. Scherer, 468 U.S. 183 , 104 S.Ct. 3012 , 82 L.Ed.2d 139 , reh’g denied 468 U.S. 1226 , 105 S.Ct. 26 , 82 L.Ed.2d 919 (1984), when the requirement was interdicted that invasion of a constitutional or statutory violation be made by the clear showing of the injured citizen. However, in Malley v. Briggs, 475 U.S. 335 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986), the absolute immunity of the witness committed perjury was not extended to the complainant officer whose statement resulted in issuance of a warrant and the arrest of the citizen.
Now we have Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987) where the reasonable person test for legitimatizing improper arrest would suffice to create the preclusive immunity from injury and damage to the arrested person. That court said:
Although we have in narrow circumstances provided officials with an absolute immunity, see, Nixon v. Fitzgerald, 457 U.S. 731 , 73 L.Ed.2d 349 , 102 S.Ct. 2690 (1982), we have been unwilling to complicate qualified immunity analysis by making the scope or extent of immunity turn on the precise nature of various officials’ duties or the precise character of the particular rights alleged to have *1338 been violated. An immunity that has as many variants as there are modes of official action and types of rights would not give conscientious officials that assurance of protection that it is the object of the doctrine to provide. With that observation in mind, we turn to the particular arguments advanced by the Creightons.
Id. 483 U.S. at 642-43 ,107 S.Ct. at 3040-41. The court then in result adopted the widest and least procrustean adaptation logically possible and effectively reversed the burden of proof stricture of Gomez v. Toledo, 446 U.S. 636 , 100 S.Ct. 1920 , 64 L.Ed.2d 572 (1980) in the process for denial of damages for a nighttime invasion by police officers in the home of an innocent citizen. See Shapiro, Public Officials’ Qualified Immunity in Section 1983 Actions Under Harlow v. Fitzgerald and its Progeny: A Critical Analysis, 22 U.Mich.J.L.Ref. 249, 265 (1989). The court’s redirection of summary judgment was then applied to a lawsuit initiated in a state court within the Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986) and Celotex Cory. v. Catrett, 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986) postulation. 35 Finally came the significant destruction of remedies for governmental agency caused injury to the rights of citizens under Section 1983 by Will, 109 S.Ct. 2304 , where confinement of the ameliorative remedy for acts of government was disconnected from the state by definition of a person to exclude the state and its official representatives (whatever that may come to mean).
Embodied within this changing morass of perceptible movement against the protection of an individual’s right from injuries by government invading statism, is the 1976 case of Imbler. Imbler, for the purposes of civil rights proceedings, then dated nearly two centuries after the adoption of the United States Constitution and one century after the passage of the civil rights legislation, enacted judicial legislation to provide absolute prosecutorial immunity. In combining hope, despair, and disdain, the majority stated:
The ultimate fairness of the operation of the system itself could be weakened by subjecting prosecutors to § 1983 liability. Various post-trial procedures are available to determine whether an accused has received a fair trial. These procedures include the remedial powers of the trial judge, appellate review, and state and federal post-conviction collateral remedies. In all of these the attention of the reviewing judge or tribunal is focused primarily on whether there was a fair trial under law. This focus should not be blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor’s being called upon to respond in damages for his error or mistaken judgment.
We conclude that the considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor’s immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.
Imbler, 424 U.S. at 427-28 , 96 S.Ct. at 993-94 (footnote omitted).
Imbler was first faulty in recitation about a similar preclusive rule at common law. Any such broad rule could only be traced back to the language in Gregoire, 177 F.2d 579 and not to any existence in case law predating passage of the Civil *1339 Rights Act. In almost abysmal naivety, as apropos here, Imbler related:
We emphasize that the immunity of prosecutors from liability in suits under § 1983 does not leave the public powerless to deter misconduct or to punish that which occurs. This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. § 242 , the criminal analog of § 1983. O’Shea v. Littleton, 414 U.S. 488, 503 [ 94 S.Ct. 669, 679 , 38 L.Ed.2d 674 ] (1974); cf. Gravel v. United States, 408 U.S. 606, 627 [ 92 S.Ct. 2614, 2628 , 33 L.Ed.2d 583 ] (1972). The prosecutor would fare no better for his willful acts. Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.
Imbler, 424 U.S. at 428-29 , 96 S.Ct. at 994 (footnotes omitted).
Justice White, concurring in the judgment, correctly recognized that general absolute immunity for prosecutors did not exist at common law.
There was no absolute immunity at common law for prosecutors other than absolute immunity from suits for malicious prosecution and defamation. There were simply no other causes of action at common law brought against prosecutors for conduct committed in their official capacity. There is, for example, no reported case of a suit at common law against a prosecutor for suppression or nondisclosure of exculpatory evidence. Thus, even if this Court had accepted the proposition, which it has not, Scheuer v. Rhodes, 416 U.S. 232 [ 94 S.Ct. 1683 , 40 L.Ed.2d 90 ] (1974), that Congress incorporated in 42 U.S.C. § 1983 all immunities existing at common law, it would not follow that prosecutors are absolutely immune from suit for all unconstitutional acts committed in the course of doing their jobs. Secondly, it is by no means true that such blanket absolute immunity is necessary or even helpful in protecting the judicial process. It should hardly need stating that, ordinarily, liability in damages for unconstitutional or otherwise illegal conduct has the very desirable effect of deterring such conduct. Indeed, this was precisely the proposition upon which § 1983 was enacted. Absent special circumstances, * * *, with respect to actions attacking the decision to prosecute or the bringing of evidence or argument to the court, one would expect that the judicial process would be protected — and indeed its integrity enhanced — by denial of immunity to prosecutors who engage in unconstitutional conduct.
Id. at 441-42, 96 S.Ct. at 1000 (footnote omitted).
I have addressed in detail the meandering of official immunity in the decisions of the United States Supreme Court as not either to authenticate how fast it changes or how little is left for civil right remedies under Section 1983. First, I find our adaptation in Blake, 651 P.2d 1096 to have been less than justified, but even with the mill-weight of that case, no present extension to deny protection of the state constitution to the citizens of the state by the state judiciary can be justified under our oath and judicial responsibilities. Such extension does not have the slightest moral or legal justification in reason or intrinsic rightfulness. Reading every one of these cases provides no basis for me to believe that a lawyer acting as an assistant prosecutor should be immune from responsibility in damages if he knowingly and maliciously uses perjury to accomplish the arrest and retention in jail of an innocent citizen.
There is a line of federal cases that should cause opinion writers in the judiciary great concern. Those are the cases where the prosecutorial dismissal of a crim *1340 inal complaint is conditioned in some fashion upon the improperly charged accused signing a liability release in favor of the police or governmental agency. Apparently, that prosecutorial blackmail of a person with threatened confinement or continued prosecution unless a civil damage release is signed does not appear to be bothersome to the judiciary in absolving the prosecutor by the insulation of absolute immunity. For example, see the blackmail statute, W.S. 6-2-402, and the official misconduct statute, W.S. 6-5-107, neither of which contains a prosecutorial exception. Ignorance or inattention to blackmail statutes relating to the pursuit of this activity by the prosecuting attorney is obvious, e.g., W.S. 6-2-402, blackmail; United States Fidelity & Guaranty Co. v. Cook, 43 Wyo. 356 , 5 P.2d 294 (1931); 31(a) Am.Jur.2d Extortion, Blackmail, Etc., § 31 at 609 and § 50 at 619 (1989). The problem will always be created where the prosecutor commits what is in effect blackmail by leveraging a civil dispute settlement into a prosecutorial decision and plea negotiation.
Unfortunately, when a difference cannot be discerned between plea bargaining and negotiations to settle civil liability at threat of prosecution, the judiciary itself is in trouble. See Schloss v. Bouse, 876 F.2d 287 (2nd Cir.1989) and Boyd v. Adams, 513 F.2d 83 (7th Cir.1975). In McGruder v. Necaise, 733 F.2d 1146 (5th Cir.1984), there was a threat to the plaintiff that he would get a life sentence for a minimal offense unless he civilly settled for injuries in a jail fire. At least for Wyoming application, I do not find public immunity insulation from criminal blackmail. 36
Coercion of a significant witness to give false testimony by threatening the witness in the jail house was "just prosecution” in Williams v. Hartje, 827 F.2d 1203 (8th Cir.1987), where the prosecutor participated in an inquest which absolved his fellow county employees from a contended jail house homicide. A conspiratorial cover-up was alleged in the conduct of the coroner’s inquest. How a conspiratorial arrangement to cover up a jail house murder fits within the broad character of a prosecuting attorney’s public duty responsibility is not clarified in the opinion. In historical result, the coroner’s inquest in which the prosecutor assisted, delayed the trial for the victim for over twenty-four years and then resulted in acquittal of the police officers who alleged to have beat the victim to death in the jail. In Campbell v. State of Maine, 787 F.2d 776 (1st Cir.1986), in result contrary to Hilliard v. Williams, 465 F.2d 1212 (6th Cir.), cert. denied 409 U.S. 1029 , 93 S.Ct. 461 , 34 L.Ed.2d 322 (1972), it was determined that prosecutorial withholding of exculpatory evidence was acceptable in an immunized Section 1983 damage context. As was apparently the master conspiracy to discredit and harass. See likewise Lee v. Willins, 617 F.2d 320, 321 (2nd Cir.), cert. denied 449 U.S. 861 , 101 S.Ct. *1341 165 , 66 L.Ed.2d 78 (1980), where plaintiff alleged that the prosecution
had (1) induced a defense witness, * * *, to render herself unavailable to testify in return for dropping felony charges against her, (2) compelled a witness, * * *, to perjure herself by arresting and incarcerating her for fifteen days without cause and threatening to “take away” her baby, (3) coerced false testimony from Joseph Cox by imprisoning him and depriving him of methadone, (4) sought and obtained five indictments for the same crime, and (5) supervised police officers who “planted” a pistol in Lee’s possession. Judge Nickerson granted a motion to dismiss the complaint as against defendants Gold and Davenport, * * *, relying upon the prosecutorial immunity recognized in Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976); and entered final judgment under Fed.R.Civ.P. 54(b).
A letter threatening prosecution if the attorney did not stop advertising legal services was immunized for the prosecutor in Goldschmidt v. Patchett, 686 F.2d 582 (7th Cir.1982). The court said in justification that “the prosecutor in exercising this quasi-judicial function is immune from civil rights liability for damages.” Id. at 585 . With considerably more logic, the judge in special concurrence denied entitlement to absolute immunity. “If defendant believed that plaintiff had violated state law, he could have initiated a prosecution of plaintiff. A prosecutor’s decision to prosecute or not is protected by absolute immunity. The letter sent by the defendant here was not connected with his decision to charge plaintiff with a violation of state law.” Id. at 586 , Swygert, J., concurring. In further discussing his disagreement with the majority that the prosecuting attorney is immune from the suit, he reiterated that:
“[T]he Supreme Court in Imbler did not hold that all official actions of the state prosecutor are absolutely immune from section 1983 liability. Imbler held only that a prosecutor has absolute immunity ‘in initiating a prosecution and in prosecuting the State’s case.’ ” * * * “Decisions in this and other circuits have established that prosecutors are entitled to only qualified immunity when performing investigative or administrative functions. * * * When a prosecutor’s activities are not connected with his role as an advocate for the Government, the reasons for extending absolute immunity are absent.”
Id. at 586 (quoting Hampton, 600 F.2d 600, 631 (7th Cir.1979)), Swygert, J., concurring.
The broadly thrusted case rivaling Im-bler in a general enunciation of excused wrongfulness is Taylor v. Kavanagh, 640 F.2d 450, 452 (2nd Cir.1981):
Thus, a prosecutor is insulated from liability where his actions directly concern the pre-trial or trial phases of a case. For example, the swearing of warrants to insure a witness’s attendance at trial, * * *, the falsification of evidence and the coercion of witnesses, * * *, or the failure to drop charges until immediately before trial, * * * have been held to be prosecutorial activities for which absolute immunity applies. Similarly, because a prosecutor is acting as an advocate in a judicial proceeding, the solicitation and subornation of perjured testimony, the withholding of evidence, or the introduction of illegally-seized evidence at trial does not create liability in damages.
The justification given was:
The rationale for this approach is sound, for these protected activities, while deplorable, involve decisions of judgment affecting the course of a prosecution. The efficient, and just, performance of the prosecutorial function would be chilled if Government attorneys were forced to worry that their choice of trial strategy and tactics could subject them to monetary liability, or at best, the inconvenience of proving a “good faith” defense to a § 1983 action.
Id. at 452. The vice of the argument is where does criminal responsibility and ethical standards fit into the excuse fulfilling characterizations? Is the prosecutor to be more fearful that the state, his insurance company 6r even himself might have to monetarily right a wrong rather than he *1342 might be incarcerated for felonious misconduct or disbarred for ethical legal activities?
To be compared is the level of responsibility for investigative activities resulting from warrantless electronic surveillance considered in balancing “the deprivation to the individual denied a remedy against the interest of governmental efficiency, * * *” in Forsyth v. Kleindienst, 599 F.2d 1203, 1210 (3rd Cir.1979), cert. denied 453 U.S. 913 , 101 S.Ct. 3147 , 69 L.Ed.2d 997 , reh’g denied 453 U.S. 928 , 102 S.Ct. 892 , 69 L.Ed.2d 1025 (1981). Wire tapping is questionable, suborning perjury is apparently not so bad. Forsyth was followed by a personnel discharge case in the prosecutor’s office in Mancini v. Lester, 630 F.2d 990 (3rd Cir.1980). Participation in an illegal search and seizure and engaging in slander fell outside the Imbler umbrella in Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied 450 U.S. 913 , 101 S.Ct. 1353 , 67 L.Ed.2d 337 (1981).
Another relatively early case, Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir.1979), provides no happier characterization of morality where the stated misconduct included
filing an information without investigation, filing charges without jurisdiction, filing a baseless detainer, offering perjured testimony, suppressing exculpatory evidence, refusing to investigate Hen-zel’s complaints about the prison system, threatening Henzel with further criminal prosecutions, and attempting to persuade Henzel not to sue state officials in return for parole.
The court then resolved:
“[E]ven where the prosecutor knowingly used perjured testimony, deliberately withheld exculpatory information, or failed to make full disclosure of all facts [is provided immunity].” Prince v. Wallace, 568 F.2d 1176, 1178-79 (5th Cir. 1978).
Id. at 657.
Henzel could have been resolved for all charged defendants, including past defense counsel, as it ultimately was by the absence of necessary evidence of malice, bad faith or anything other than bare allegations of conspiracy. Consequently, any broad need for an immunity defense was not existent. Insufficient bare allegations of conspiracy would have adequately sufficed for all defendants and not just some. The prosecutorial activities in Morrison v. City of Baton Rouge, 761 F.2d 242 (5th Cir.1985), alleged to have been directed in grand jury presentation to cover up a police killing of a black teenager, were granted immunity. The litany is stated for the Eleventh Circuit Court of Appeals that “[p]roseeutors have absolute immunity from civil damages suits under section 1983 for actions intimately associated with the judicial phase of the criminal process,” which is stated to include claims that “they offered false testimony or suppressed material at trial, filed charges without investigation or jurisdiction, filed groundless de-tainers, suppressed exculpatory evidence, refused to investigate prison complaints or threatened defendants with vindictive criminal prosecutions.” Wahl v. Mclver, 773 F.2d 1169, 1173 (11th Cir.1985).
The Ninth Circuit Court of Appeals, after a course of cases assessing legality, venality and criminality, Beard v. Udall, 648 F.2d 1264 (9th Cir.1981) and Rankin v. Howard, 633 F.2d 844 (9th Cir.1980), cert, denied 451 U.S. 939 , 101 S.Ct. 2020 , 68 L.Ed.2d 326 (1981), extended the umbrella in Ashelman v. Pope, 793 F.2d 1072, 1079 (9th Cir.1986):
Our examination of the doctrines of judicial and prosecutorial immunity convinces us to construe more broadly the availability of immunity. Although a few may suffer because of the loss of seemingly meritorious claims against judges and prosecutors, the policies in support of immunity can only be fulfilled if immunity is freely granted and the exceptions are few and narrowly drawn. Allegations of conspiracy between judge and prosecutor to predetermine the outcome of a judicial proceeding are insufficient to overcome those immunities.
The Sixth Circuit Court of Appeals followed suit in Jones v. Shankland, 800 F.2d 77, 80 (6th Cir.1986), cert. denied 481 U.S. *1343 1048 , 107 S.Ct. 2177 , 95 L.Ed.2d 834 (1987), where the plaintiff argued
that many of the claims charged against those in the prosecutor’s office relate to their role as administrator or investigative officers, rather than as advocates. His complaint contains essentially allegations of failing to disclose exculpatory and other information concerning witnesses, procuring false testimony, failing to correct perjured testimony, causing a conflict of interest for defense counsel, not disclosing that conflict to Jones, putting a “spy” in the defense camp, and “covering up” those allegedly unconstitutional actions.
That court then said:
The foregoing actions appear to us to be clearly within the scope of immunity contemplated by the Supreme Court in Imbler . The use of perjured testimony and the non-disclosure of exculpatory information are certainly entitled to absolute immunity. See Imbler, 424 U.S. at 431 n. 34, 96 S.Ct. at 995 n. 34. The conflict of interest problems and the spy allegations would also seem to be related to the acts of an advocate and thus come within the area of prosecutorial immunity as do the cover up allegations which merely appear to be restatements of the prosecution’s claimed failure to disclose exculpatory information.
Id. at 80.
Perhaps the strangest justification for prosecutorial immunity was stated in dissent in Schlegel, 841 F.2d at 945 by a paraphrase from a questionable statement in Imbler . The author said, in citing Im-bler, “[t]he 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.” Schlegel, 841 F.2d at 945 (emphasis added), Noonan, J., dissenting. 37
The prosecutorial misconduct civil suit claims fall into three general classes differentiated by the factors that create the claimed misconduct. In the first group is the convicted individual with conviction normally, although not always, unreversed by any direct proceedings where, in effect, the civil action constitutes a collateral attack. These cases are summarily subject to disposition without insulation of the prosecuting attorney by an immunity blanket. Unfortunately, over-extended language is frequently applied in decisions which are essentially dicta where an easy disposition is appropriate. 38 Wahl, 773 F.2d 1169 .
Category two is what I will define as the hard ball or the hard rider cases of questionable action introduced by uncontrolled prosecutorial effort to secure conviction. These are the ethics and overreaching cases where the contended conduct certainly is professionally improper and may frequently, in itself, constitute a crime of suborning perjury or misuse of office. Rex v. Teeples, 753 F.2d 840 (10th Cir.), cert. denied 474 U.S. 967 , 106 S.Ct. 332 , 88 L.Ed.2d 316 (1985); Lee, 617 F.2d 320 .
The third category is the ulterior purpose cases where the prosecuting official uses his power and his office for other purposes such as monetary benefit, revenge or protection of someone, governmental or private. Morrison, 761 F.2d 242 ; McGruder, 733 F.2d 1146 ; Jennings v. Shuman, 567 *1344 F.2d 1213 (3rd Cir.1977); United States ex rel. Rauch v. Deutsch, 456 F.2d 1301 (3rd Cir.1972). See, however, United States v. Davis, 890 F.2d 1373 (7th Cir.1989), extortion prosecution.
The problem with the foregoing categorizations, which define the real occurrences, is that they do not fit into the dichotomies for decision generally followed by the federal courts. Whether the challenged conduct is pretrial (investigatory or administrative) within the trial (suborning, conspiracy, altering documents, etc.) or after trial does not determine the category of generic class of behavior involved or the reason for its incurrence. The malum in se or ma-lum prohibitum function of conduct is consequently not considered. The political and sociological failure of Imbler is in result to detach reason for behavior from test of responsibility. As a result, commission of crimes and egregious breach of standards of conduct when fit into a certain time and performance zone- 39 are immunized, while what may have been reasonable conduct in intent and performance in another sequence, loses the protection that may be otherwise given to the commission of the crime or professional misconduct. Hampton, 600 F.2d 600 ; Lee, 617 F.2d 320 . 40
The federal courts, commencing with Yaselli v. Goff, 12 F.2d 396 (2nd Cir.), cert, granted 273 U.S. 677 , 47 S.Ct. 101 , 71 L.Ed. 835 (1926), aff'd 275 U.S. 503 , 48 S.Ct. 155 , 72 L.Ed. 395 (1927), have not been hospitable to malicious prosecution suits against federal or state prosecutors. The initial justification introduced was the quasi-judicial function involved. Basic authority in American law seems to be derived from Bradley, 80 U.S. 335 . These conventional malicious prosecution cases, *1345 many of which are cited by the majority, do not generally speak to the subject here presented of conspiratorial production and use of perjured material to secure the arrest and continued incarceration of a known innocent person. The paranoia fear of the suit itself is self-evident in the text of the opinions. Bauers, 361 F.2d 581 directly extended the malicious prosecution immunity for prosecutors to the damage suits under Section 1983 overruling its pri- or contrary decision in Picking v. Pennsylvania R. Co., 151 F.2d 240 , reh’g denied 152 F.2d 753 (3rd Cir.1945). Generally, these cases include Schloss, 876 F.2d 287 , not to prosecute; Murphy, 849 F.2d 1101 , introduction of evidence at trial; Hamilton v. Daley, 777 F.2d 1207 (7th Cir.1985); Fullman v. Graddick, 739 F.2d 553 (11th Cir.1984); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir.1984); Cook v. Houston Post, 616 F.2d 791 (5th Cir.1980); Henzel, 608 F.2d 654 ; Heidelberg v. Hammer, 577 F.2d 429 (7th Cir.1978); Prince v. Wallace, 568 F.2d 1176 (5th Cir.1978); McDonald v. State of Illinois, 557 F.2d 596 (7th Cir.1977); Conner v. Pickett, 552 F.2d 585 (5th Cir.1977); Fanale, 385 F.2d 866 ; Gabbard v. Rose, 359 F.2d 182 (6th Cir.1966); Sires v. Cole, 320 F.2d 877 (9th Cir.1963); and Kenney v. Fox, 232 F.2d 288 (6th Cir.), cert. denied 352 U.S. 855 , 77 S.Ct. 84 , 1 L.Ed.2d 66 , cert. denied 352 U.S. 856 , 77 S.Ct. 84 , 1 L.Ed.2d 66 (1956).
There is, however, a limit beyond a very indistinct line where even the federal courts do not throw the misconduct absolving mantle off immunity. I believe this case would fit beyond that line. Statements to the press by prosecution justifies only qualified immunity as an administrative function. England v. Hendricks, 880 F.2d 281 (10th Cir.1989); Gobel v. Maricopa County, 867 F.2d 1201 (9th Cir.1989); Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983); Marrero, 625 F.2d at 506 ; Hampton, 600 F.2d at 633 . To be compared is Borucki v. Ryan, 827 F.2d 836 (1st Cir. 1987), where United States prosecutor Michael Ryan first dismissed the criminal charges and then held a press conference where he openly discussed mental commitment examination details ordered to determine plaintiff’s competency. The resulting civil rights lawsuit was based on invasion of privacy by a disclosure to the press of psychiatric report contents. After the appellate court applied qualified immunity, it was held that prosecutorial release to the press of psychiatric reports did not violate a clearly established right of privacy and, consequently, qualified immunity was justified. One is called to question what quality of legal education provided this level of abysmal ignorance. Surely a freshman in law school would know better and clearly so. The activity of the prosecutor was in best light blatant politicking in contravention of the constitutional rights of a helpless human being. Perhaps a 120 day suspension from the practice of law would have provided a level of knowledge and deterrence to the prosecutor educating against this character of misbehavior.
In addition to the press release cases, see also Butz, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 , other limits to excused prose-cutorial misconduct are actually found in some federal court cases. In Lewis v. Brautigam, 227 F.2d 124 (5th Cir.1955), removal from the county jail facility to the state prison, a 300 mile distance, and other conduct to force the plaintiff to plead guilty was not determinable on a motion to dismiss whether the acts were within the scope of prosecutorial authority or authorized by law. Robichaud, 351 F.2d 533 denied the immunity umbrella to actions confining a teenager in the drunk tank and subsequent removal to the crime scene in the absence of her lawyers in order to secure a confession. In Hilliard, 465 F.2d at 1218 , the court, after first recognizing the existence and text of the code of professional responsibilities, refused to extend immunity to the alleged facts:
We hold that factual averments of the complaint as summarized above, considered in a light most favorable to plaintiff, charge the District Attorney General with acts which were outside his quasi-judicial capacity and beyond the scope of “duties constituting an integral part of the judicial process.” We are not willing *1346 to extend the doctrine of quasi-judicial immunity to a complaint charging deliberate suppression of an FBI laboratory report establishing the innocence of the defendant.
In the case, stains on the defendant’s jacket were not human blood as argued by the prosecution, but rather hog blood as contended by the defense. The jacket disappeared before trial while in state custody but not before an FBI examination confirmed the defense, which report was withheld by the prosecution during trial.
In a Connecticut grand jury investigation of the plaintiff as a state official, Powers v. Coe, 728 F.2d 97, 103 (2nd Cir.1984), claims for injury in the Section 1983 complaint included “(1) leaked information to the media, (2) wiretapped his telephone calls, (3) breached an agreement not to prosecute, (4) entrapped him to commit new crimes, and (5) misused the grand jury.” The appellate court granted an immunity defense to the three contentions, misuse of the grand jury, breach of the agreement not to prosecute and entrapment, and held, although immunity did not apply, that the claims relating to the alleged illegal wiretap were not available and reversed the decision of the trial court granting a general summary judgment to determine if pros-ecutorial leaking of secret information to the media might state a claim on a deprivation of a fair trial basis (denied due process interest). See likewise McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982), which involved the release of illegally obtained information to a state legislative committee where absolute immunity was not provided for activities which included initial acquisition of documents, safekeeping and release contrary to an injunc-tive order.
Alleged direction to hold a prisoner in a cell that was “dirty, infested with roaches and bugs and that [plaintiff] was given no food, water or showers during that four day period,” Price v. Moody, 677 F.2d 676, 677 (8th Cir.1982) (footnote omitted), was not subject to absolute immunity favoring the defendant prosecutor. See likewise Forsyth, 599 F.2d 1203 , wiretapping case. Hampton, 600 F.2d 600 , as well advertised and publicized, followed Butz, 438 U.S. at 482 , 98 S.Ct. at 2898 in determining that no unqualified immunity existed for publicity campaigns. The Hampton court did, however, accept a constitutional Imbler immunity application for loss, falsification and destruction of evidence by the prosecution in conjunction with the police citing Heidelberg, 577 F.2d 429 . 41
Wiretap usage by the district attorney during his investigation was administrative and not judicial and not cloaked with absolute immunity in Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978), cert. denied 442 U.S. 930 , 99 S.Ct. 2861 , 61 L.Ed.2d 298 (1979). A congressman who alleged that the United States attorney deliberately *1347 leaked false information in abuse of the grand jury process stated a claim for activities outside of any proper performance of the prosecutor’s job. Helstoski v. Goldstein, 552 F.2d 564 (3rd Cir.1977). Obviously, press releases by prosecutors have not been highly favored for immunity protection.
The Tenth Circuit Court of Appeals in Rex, 753 F.2d 840 concluded that a deputy district attorney in assisting to obtain an involuntary coerced confession was beyond the Imbler umbrella. Likewise, assistance in making the arrest is not immunized as a prosecutorial function. Wethers v. Ebert, 505 F.2d 514 (4th Cir.1974), cert. denied 424 U.S. 975 , 96 S.Ct. 1480 , 47 L.Ed.2d 745 (1976); Apton v. Wilson, 506 F.2d 83 (D.C. Cir.1974).
Freedom from arbitrary arrest and detention are among our most cherished liberties. Their infringement has warranted a remedy in damages inferred from the Constitution itself in cases where Congress has failed to provide it by statute. Bivens v. Six Unknown Named Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971). The infringement alleged here is substantial, carrying overtones of physical abuse. Elements of the assault upon individual liberty remain unredressed even if reverberation of harm into the future is contained by such relief as the expungement of arrest records.
Apton, 506 F.2d at 93 (footnote omitted). See similarly the practice for arresting with a warrant, Crane v. State of Texas, 759 F.2d 412 , aff'd as modified 766 F.2d 193 (5th Cir.), cert. denied 474 U.S. 1020 , 106 S.Ct. 570 , 88 L.Ed.2d 555 (1985). Joseph, 795 F.2d 549 recognized that advocacy did not necessarily include the acquisition of coerced statements in investigatory interrogation. Likewise not included was sitting on a concealed weapons licensing board. Limits that can be realistically found differentiating conduct from the core proceeding in advocacy conduct is demonstrated by Mairena v. Foti, 816 F.2d 1061, 1066 (5th Cir.1987), cert. denied 484 U.S. 1005 , 108 S.Ct. 697 , 98 L.Ed.2d 649 (1988):
A reasonable juror could have concluded that the major responsibility for the violation of Mairena’s constitutional rights lay with the district attorney’s office, since it issued the warrant for Mairena’s arrest without proper safeguards. Moreover, it was the district attorney’s office that was responsible for advising the other defendants, i.e., the sheriff and clerk, that the warrant for arrest was no longer required and should be cancelled. We therefore conclude that the district attorney has not shown that the evidence indicates that the jury’s factual determination on the damages issue was subject to reversal under the reasonableness standard.[ 42 ]
A differentiated test appears in Jennings, 567 F.2d at 1221 -22 (quoting United States ex rel. Rauch, 456 F.2d at 1302 ) where “a prosecutor is entitled to absolute immunity ‘while performing his official duties,’ * * *, as a[n] officer of the court, even if, in the performance of those duties, he is motivated by a corrupt or illegal intention.” The relation of corrupt and illegal intention while performing official duties as an officer of the court was again not explained in criminal, ethical or moral terms.
The court in Corsican Productions v. Pitchess, 338 F.2d 441, 444 (9th Cir.1964), stated:
[Pjrosecutors are not immune from suit under the Act simply as a matter of status wholly without regard to the nature of their conduct. * * * The county attorney did not submit the present contention to the district court. If he had, and if the district court had held the allegations of the complaint insufficient under the immunity rule, appellants would have been entitled to an opportunity to amend, no responsive pleading having been filed. In these circumstances, we will not consider the adequacy either *1348 of the allegations as they now read or as they might be supplemented by amendment.
See also Lewis, 227 F.2d at 129 , where the opinion noted that the status of a motion to dismiss afforded an insufficient basis for factually dismissing the claim, since “[o]n motion to dismiss, it cannot be held that such acts were either within the scope of his jurisdiction as State’s Attorney, or were authorized by law.” See likewise Breier v. Northern Cal. Bowling Proprietors’ Ass’n, 316 F.2d 787 (9th Cir.1963).
State cases, although recognizing levels of immunity, are not so condescending to the factors of morality and responsibility involved. The Iowa cases, Gartin v. Jefferson County, 281 N.W.2d 25 (Iowa App. 1979) and Blanton v. Barrick, 258 N.W.2d 306 (Iowa 1977), as state cases, are frequently cited as providing absolution to the prosecuting attorney from his responsibility for misconduct. These cases do not present the conspiracy to violate the constitutional rights issue under the state constitution. In Blanton , it was an ethical violation and in Gartin , the court did not define how perjury could constitute an official act under the state constitution. To be compared is Johnson v. Morris, 445 N.W.2d 563, 570 (Minn.App.1989), where the court first recognized that excessive force in arrest may be unconstitutional and “[qualified immunity of public officials for purposes of a section 1983 action does not automatically confer immunity from state law claims.” The court stated in Elwood v. Rice County, 423 N.W.2d 671, 676-77 (Minn.1988) (quoting Creighton, 107 S.Ct. at 3041 ): 43
[Defendants urge that qualified immunity for purposes of Section 1983 also applies to state law claims. We disagree, rejecting the proposition that federal immunity principles under Section 1983 also control state law. While qualified immunity under Section 1983 had its origin in public officials’ defenses available at common law, the doctrine has since been “completely reformulated * 4 * along principles not at all embodied in the common law.” * * * We decline to simply apply the federal standard in all state tort actions.
Scholastic analysis and criticism has not ignored this subject. Exceptional, analytical and authoritative consideration is found in Friesen, Recovering Damages for State Bills of Rights Claims, 63 Tex.L. Rev. 1269 (1985) and Wolcher, Sovereign Immunity and the Supremacy Clause: Damages Against States in Their Own Courts for Constitutional Violations, 69 Cal.L.Rev. 189 (1981). See also Matasar, Personal Immunities Under Section 1983: The Limits of the Courts Historical Analysis, 40 Ark.L.Rev. 741 (1987). Wolcher, supra, 69 Cal.L.Rev. at 314-16, in his conclusion, states:
The idea that there are some wrongs without remedies, whatever its force may be in the field of private law, has no place in regulating the rights of individuals against government in a system with a written constitution like our own. When the Constitution tells a state that it shall not, for instance, deprive persons of life, liberty, or property without due process of law, the consequence ought to be either compliance by the state or a remedial system designed to redress fully and adequately the harm caused by noncompliance.
⅜ sfc * * s}s *
The one thing that is no longer admissible, if it ever was, is the notion that sovereign immunity bars all claims against the states, of whatever source and wherever litigated. Instead, the nature of the claim and the court where it is heard are both important, if not determinative, criteria, as the Court held in Nevada v. Hall, [ 440 U.S. 410 , 99 S.Ct. 1182 , 59 L.Ed.2d 416 (1979) ] and Maine v. Thiboutot, [ 448 U.S. 1 , 100 S.Ct. 2502 , 65 L.Ed.2d 555 (1980)]. It is now more appropriate than ever to reaffirm that *1349 state courts of general jurisdiction share with federal courts the duty to enforce the Constitution, and to recognize that that duty is strongest of all when constitutional claimants have no other forum in which to vindicate their rights.
Friesen, supra, 63 Tex.L.Rev. at 1318, as a determined advocate of a state right remedy for state constitutional violation, also concludes:
This Article suggests practical and theoretical reasons for the creation of adequate state law remedies for bills of rights violations: enhancing state law’s theoretical development, compensating deserving plaintiffs, and deterring disregard of the state constitution through education and enforced responsibility of private and public lawbreakers. * * ⅜ Ultimately, the state legislatures must respond to the need for private enforcement of public norms by creating remedies for constitutional claims, along with waivers of sovereign immunity provisions for full compensation, including attorney fees and authorization of punitive damages when appropriate. Until that time, the courtrooms of the fifty states’ trial and appellate judges will be the testing grounds for this new wave of the not-so-new federalism. These judges may be the ones to decide whether, at least for civil plaintiffs, our state bills of rights offer more than an empty flirtation.
See also Note, Rethinking Sovereign Immunity After Bivens, 57 N.Y.U.L.Rev. 597 (1982). Compare the exhaustive review in Developments in the Law, Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1361 (1977), where, in conclusion, it is said “it seems clear that Congress can and should constrict the scope of personal immunities, and eliminate the absolute immunities enjoyed by governmental bodies.” It is as inevitable as the continued existence of democratic government with the teaching of Marburg revealing the responsibility of government that if the individual state fails in this task to protect their citizens from constitutional depravation, federalism will once again move the responsibility to Congress and the federal judiciary.
The non-firm foundation which purports to be implanted from historical analysis is well considered in Coleman, ⅛2 U.S.C. Section 1988: A Congressionally-Mandated Approach to the Construction of Section 1983, 19 Ind.L.Rev. 665 (1986); Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209 (1963); Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1 (1963); and Matasar, supra, 40 Ark.L.Rev. 741.
Damage actions for misconduct, as we know, have been available for hundreds of years against the wrongdoing officer. It is this liability which appeared to Dicey to justify his famous formulation of the “rule of law:”
“In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts, has been pushed to its utmost limit. With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.”
This statement contains an important truth, but whether viewed doctrinally, functionally, or historically, it can be seen as misleading, and eve
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