# McCollum v. Garrett > Kentucky Supreme Court · September 1, 1994 · 880 S.W.2d 530 URL: https://www.frixlaw.com/law-library/cases/9764963 ## Case - **Full name:** Charles R. McCOLLUM, III, Henderson County Attorney, Appellant, v. Georgia Fay GARRETT, Appellee - **Court:** Kentucky Supreme Court - **Decided:** September 1, 1994 - **Citations:** 880 S.W.2d 530; 1994 WL 141010 - **Precedential status:** Published - **Opinion:** Concurring in part by Taliaferro - **Judges:** Lambert, Leibson, Part I, Philip, Reynolds, Spain, Stephens, Stumbo, Taliaferro - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764963 ## How later opinions describe it (automated extraction) - finding that the defendant was sued in his individual capacity despite the complaint’s failure to explicitly state as such because the complaint “otherwise state[d] a straightforward claim against [defendant] based upon his individual actions” and “the relevant allegations of … - discussing Buckley, Burns, and Imbler and holding that absolute immunity applies when the prosecutor “is acting within the scope of his authority,” regardless whether the actions “were necessarily preliminary to the initiation of a prosecution” ## Opinion text TALIAFERRO, Special Justice, concurring in part and dissenting in part. I agree with the majority’s opinion that Mr. McCollum was properly sued in his individual capacity under the analysis of Calvert Investments, Inc. v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 805 S.W.2d 133 (1991), and Smith v. Isaacs, Ky., 777 S.W.2d 921 (1989). However, I take exception to the majority’s holding that McCollum is entitled to only qualified immunity for his actions in this case. In my view, McCollum was acting within the scope of his authority as county *536 prosecutor after Ms. Griffin accused Fay Garrett and he therefore should be absolutely immune from common law liability. I believe that the common law precedent and public policy of Kentucky, together with the opinions of the United States Supreme Court, compel this Court to apply absolute immunity in this case. Therefore, I respectfully dissent. In Kentucky, the roots of prosecutorial immunity are found in the absolute judicial immunity, set forth in Dixon v. Cooper, 109 Ky. 29 , 58 S.W. 437 (1900), and reaffirmed by Bryant v. Crossland, 182 Ky. 556 , 206 S.W. 791 (1918), and Henry v. Wilson, 249 Ky. 589 , 61 S.W.2d 305 (1933). In Duncan v. Brothers, Ky., 344 S.W.2d 398 (1961), the Court of Appeals extended the scope of judicial immunity to include police court. This Court, in a majority opinion authored by Justice Stephens, extended absolute judicial immunity to the issuance of a warrant by a deputy clerk, holding that such issuance was a “judicial function” even though the issuance of the arrest warrant was contrary to law. City of Louisville v. Bergel, Ky., 610 S.W.2d 292, 293 (1980). The Court of Appeals further extended the scope of absolute immunity to the Commissioner of the Department of Economic Security when it ruled that she was entitled to absolute immunity from civil liability while she was in the exercise of a discretionary function and so long as she acted within the general scope of her authority. Thompson v. Huecker, Ky.App., 559 S.W.2d 488 (1977). This case arose out of Huecker’s departmental reorganization which had eliminated the job of Thompson, a merit employee. The Court reasoned that: “To impose tort liability would discourage public officers from undertaking plans to improve the efficiency of government.” Id. at 496 and 497. The Court adopted the policy set forth by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir.1949): [I]t has been though in the end better to leave unredressed the wrongs by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Finally, in 1993, this Court, in a majority opinion authored by Justice Lambert, farther extended absolute immunity to the Chairman of the State Racing Commission in Compton v. Romans, Ky., 869 S.W.2d 24 (1993). The Court in Compton granted absolute immunity despite a jury verdict which found the Chairman liable for knowing or reckless defamation in the course of an investigation. As pointed out by the majority, this holding has the occasional effect of protecting “officials in their misconduct,” but is the necessary price for “sound public policy.” Id. at 27 . The Compton opinion discussed the “lawful authority” vested in the official as support for absolute immunity: To determine the extent to which a public official shall have protection of the doctrine of absolute immunity, it is necessary to examine the lawful authority, including such discretionary authority as may reasonably be implied.... Id. at 27 . The Compton opinion reasoned that the State Racing Commissioner had a broad grant of authority. A county attorney in Kentucky also has a broad grant of authority to cooperate in the enforcement of criminal and penal laws within his judicial circuit. KRS 15.725. The Compton Court also cited McAlister & Co. v. Jenkins, 214 Ky. 802 , 284 S.W. 88 (1926). In the McAlis-ter case, the Court granted absolute immunity to an official report of the Kentucky Real Estate Commission. The Compton Court’s rationale for absolute immunity for the Chairman of the State Racing Commission is as follows: While we intend no comfort for those public officials who may despicably defame their fellow citizens, the public interest in the unflinching enforcement of the law must prevail over the private interest of a wronged citizen. Id. at 28 , citing Tanner v. Stevenson, 138 Ky. 578 , 128 S.W. 878 (1910). Prosecutors such as McCollum, need and should also be granted absolute immunity as a matter of public policy. It is also my opinion that it would be inconsistent with and in violation of this State’s public policy to grant absolute immunity to a deputy clerk, to a report of Ken *537 tucky Real Estate Commissioners, to the Commissioner of the Department of Economic Security and to the Chairman of the State Racing Commission but not to prosecutors. Since Kentucky courts grant absolute immunity in the above-mentioned cases, it must a fortiori grant absolute immunity to prosecutors. The public policy behind absolute prosecu-torial (and judicial) immunity is, in my view, compelling. It is essential to a prosecutor’s public trust that he or she be at liberty to exercise his or her functions with independence, free from the distraction of potential liability. As the Supreme Court stated in McAlister, supra, and reaffirmed in Compton, supra at 26: [Absolute immunity] is a rule ... of public policy, not designed to protect the malicious official from the consequences of his wrongful act, but to protect the whole public from weak and vacillating public service by those upon whom such duties are imposed by law. The Restatement (Second) of Torts § 656 (1977) has adopted this policy, as have a majority of states 1 and commentators W. Prosser and W.P. Keeton. 2 Specifically, § 656 of the Restatement (Second) of Torts (1977) states: A public prosecutor acting in his official capacity is absolutely privileged to initiate, institute or continue criminal proceedings. Comment b to this section clarifies this language: The privilege stated in this Section is absolute. It protects the public prosecutor against inquiry into his motives, and from liability, even though he knows that he has no probable cause for the institution of the proceedings and initiates them for an altogether improper purpose. The case of Dugger v. Off 2nd, Inc., Ky. App., 612 S.W.2d 756 (1981), cited the United States Supreme Court case of Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976), for the proposition that a prosecutor’s immunity was a “quasi-judicial immunity,” available only when a prosecutor acts within the scope of his or her prosecuto-rial duties. The Dugger court held likewise: “We also hold that a prosecutor is immune from liability only to the extent that he has acted within the scope of his duties as a prosecutor.” 612 S.W.2d at 755 . It is clear that the prosecutor’s alleged signing of a judge’s name to a warrant was outside the scope of his prosecutorial authority. It is equally clear that McCollum was acting within the scope of his prosecutorial authority after Ms. Griffin indicated to him that she had seen Fay Garrett hugging and kissing the prisoners. The trial court was correct in its finding that McCollum was acting within the scope of his official duties and was therefore entitled to absolute immunity. McCollum’s conduct unquestionably meets the Imbler test if being “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430 , 96 S.Ct. at 955 . After Ms. Garrett was accused, McCollum was functioning as an advocate for the State of Kentucky within the scope of his authority and in the exercise of a discretionary function. Buckley v. Fitzsimmons, 509 U.S.-, 113 S.Ct. 2606 , 125 L.Ed.2d 209 (1993). As such, I believe his acts are entitled to absolute immunity pursuant to the analysis set forth herein. Therefore, I believe that judgment should be entered for McCollum and this case dismissed. REYNOLDS and SPAIN, JJ., join in this opinion. . Imbler v. Pachtman, 424 U.S. at 421 -22 n. 19, 96 S.Ct. at 991 n. 19, 47 L.Ed.2d at 138 n. 19. See also 52 AxnJur2d Malicious Prosecution § 67 (1970). . W. Prosser and W.P. Keeton, Prosser & Keeton on Torts, § 132 at 1056-58 (5th Ed., 1984). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764963. Public record. Not legal advice.