Kipp v. Saetre

DAVID R. LESLIE, Judge

(dissenting).

My opposition to the majority opinion is twofold: I object both to the premise on which their reasoning is based, and to the application of that reasoning to these appellants.

The majority upholds and extends the principle of judicial immunity to civil suits. I find this principle inherently suspect, and am thus opposed to its extension. Admittedly, if a judge is to be immune from any prosecution for his actions, it may well defy logic to deny that immunity to those required to obey his orders (although a strong argument can be made that a knowledgeable county attorney and probation officer should stand up and refuse to follow an order they know to be contrary to law). However, in my view, exonerating county prosecutors and county probation officers who offer the simple defense of “following the judge’s orders” may be convenient but merely begs the question: if the judge’s orders were erroneous, and the prosecutor and probation officer knew them to be erroneous, absolute immunity should be extended not to all but to none. *646 In this instance, I find it incredible that neither the prosecutor nor the probation officer knew respondent was entitled to a probation revocation hearing before being incarcerated. Both appellants had considerable experience in their jobs; both must have been well aware of the procedures designed to prevent arbitrary or unjustified incarcerations. Respondent was entitled to have those procedures followed in his case, and should be entitled to pursue those who failed to follow them, particularly if it is established that their conduct was willful or malicious. In this case a person wronged is left without a remedy. It is an example of justice without a human face. The majority opinion in applying what they perceive to be the law has considered only the convenience of the thing and forgotten about the justice of the matter. I would affirm the trial court’s denial of summary judgment.