Appendix — Sweptson v. Snell

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FILED

FEB 2 7 1991

OFFICE OF THE BuxaX

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1990

MICHAEL SWEPSTON, PAM PADLEY, BARBARA

SIECK, and BENITA LEVINGSTON,

Petitioners,

vs.

CLARK DAVENPORT SNELL, SHARON RUTH

SNELL, JIM R. SNELL, BETH SNELI., JASON

SNELL, BRITTANY SNELL, PATRICIA JEAN

TURTLE, and JESSE SANDERS,

Respondents,

APPENDIX TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

Richard L. Freeman

Assistant General Counsel

Department of Human Services

P.O. Box 53025

Oklahoma City, OK 73152-3025

(405) 521-3638

Attorney of Record for

Petitioners Michael

Swepston, Pam Padley,

Barbara Sieck, and

Benita Levingston

APPENDIX 1

OPINION

APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

Filed November 30, 1990

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CLARK DAVENPORT )

SNELL; SHARON SNELL, )

individuals, husband)

and wife; JIM R. )

SNELL, an indivi- )

dual; BETH SNELL, a )

minor child by her )

next friends and )

parents Clark and )

Sharon Snell; JASON )

SNELL, a minor child)

by his next friends )

and parents, Clark )

and Sharon Snell; )

BRITTANY SNELL, a )

minor child by her )

next friends and )

parents Clark and )

Sharon Snell; )

PATRICIA JEAN )

TURTLE, by her next )

friends and legal )

guardians Clark and )

Sharon Snell; and )

JESSE SANDERS, by )

his next friends and)

legal guardians )

Clark and Sharon )

Snell, )

)

Plaintiffs-Appellees

vs.

CONLEY TUNNELL;

LISSA VERNON; MARY

ASBURY; THE

Sase No. 88-2879

(Filed November 30,

1990)

APP. 1

HONORABLE SIDNEY D.

BROWN; and STATE OF

OKLAHOMA ex rel.

The Department of

Human Services,

Defendants,

and

MICHAEL SWEPTSON;

BARBARA SIECK;

BENITA LEVINGSTON;

and PAMELA PADLEY,

Defendants-

Appellants.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE WESTERN

DISTRICT OF OKLAHOMA

(D.C. No. CIV-87-1812-P)

David A. Brown, Assistant General Counsel

(Charles Lee Waters, General Counsel, Roger

Stuart and Richard L. Freeman, Jr.

Assistant General Counsel, with him on the

brief), Legal Division, Department of Human

Services, Oklahoma City, Oklahoma, for

Defendants-Appellants.

APP. 1

Marjorie Ramana (Allan DeVore with her on

the brief), The DeVore Law Firm, Oklahoma

City, Oklahoma, for Plaintiffs-Appellices.

Before SEYMOUR and BALDOCK, Circuit Judges

and SAFFELS, District Judge.~

BALDOCK, Circuit Judge.

We should be careful to get out

of an experience only the wisdom that

is in it--and stop there; lest we be

like the cat that sits down on a hot

stove-lid. She will never sit down on

a hot stove-lid again--and that is

well; but she will never sit down ona

cold one any more.

Pudd'nhead Wilson's New

Calendar.

I M. Twain, Following

the Equator ch. XI at

107 (Harper Bros.

ed.).

Plaintiffs instituted this action

seeking injunctive relief and damages under

“The Honorable Dale E. Saffels, United

States District Judge for the District of

Kansas, sitting by designation.

APP. 1

42 U.S.C. §§ 1983 & 1985 based upon an

investigation by the Oklahoma Department of

Human Services (DHS) concerning allegations

of child abuse. The district court denied

injunctive relief, the § 1985 claim was

dismissed, and only four defendants remain

after district court proceedings. In this

appeal, we are required to decide whether

these remaining defendants, DHS employees,

are entitled to absolute or qualified

immunity for activities which occurred

during an investigation of a shelter/home

for children operated by plaintiffs-

appellees, Clark and Sharon Snell.

Defendants-appellants, Michael Sweptson

(County Supervisor; Oklahoma County Child

Welfare Field Services, Division of Children

and Youth Services (DCYS)), Barbara Sieck

(Social Services Supervisor; Oklahoma County

Child Welfare Unit), Benita Levingston

APP. 1

(Social Worker; Oklahoma County Child

Welfare Unit), and Pam Padley (Assistant

General Counsel; DHS) appeal from the

district court's denial of absolute and

qualified immunity. We review the denial of

immunity de novo as a final decision under

28 U.S.C. § 1291. Mitchell v. Forsyth, 472

U.S. 511, 530 (1985); McEvoy v. Shoemaker,

882 F.2d 463, 465 (10th Cir. 1989).

Given the facts, we agree with the

district court that the three non-attorney

defendants challenging the denial of

absolute immunity (Sweptson, Sieck and

Levingston) were acting in an investigative,

rather than a prosecutorial capacity, and

accordingly, we affirm the denial of

absolute immunity for these defendants. On

narrower grounds, we affirm the district

court's decision that the defendant DHS

attorney (Padley) is not entitled to

APP. 1

absolute immunity. We determine that

defendant Padley, though acting in a

prosecutorial capacity, did so without

authority when she applied to the district

court for assistance with the investigation

of the Snells. As to the defense of

qualified immunity, we agree with the

district court that obtaining a court order,

used to gain entry into the Snell home,

based upon information known to be false

Clearly violates the fourth amendment, and

a reasonable public official would have

known this. Thus, we affirm the denial of

qualified immunity for such conduct.

At the outset, we note that our review

of the district court's order is limited to

deciding whether absolute or qualified

immunity was properly denied to these four

remaining defendants given the trial court's

APP. 1

decision that the plaintiffs could proceed

to trial. Snell v. Tunnell, 698 F. Supp.

1542 (W.D. Okla. 1988). Although the

district court resolved other issues in its

lengthy opinion, we do not pass on the

merits of “he issues which encompass the

grant of summary judgment in favor of other

defendants,* including Mary Asbury

(District Supervisor; Child Welfare Field

Services, DcYSs) and Conley Tunnell

(Assistant Director; DHS; DCYS). We also do

not pass on claims involving the grant of

qualified immunity to the defendants.

In their brief, the Snells_ have

challenged the district court's grant of

*The district court dismissed Judge

Brown as a defendant. Snell, 698 F.Supp. at

1543 n.l. The parties stipulated to the

dismissal of defendant Lissa Vernon. Id. at

1544. Summary judgment was granted in favor

of defendants Asbury, id. at 1565, and

Tunnell, id. at 1544.

APP. 1

qualified immunity to the defendants on the

Snells' due process (liberty) and privacy

claims. Brief of Plaintiffs-Appellees at

37-39. We have recognized the doctrine of

pendent appellate jurisdiction to decide

otherwise non-appealable issues, see State

of Colo. v. Idarado Mining Co., 916 F.2d

1486, -_, (10th Cir. 1990) (1990 WL

150137 at 24-25]; Tri-State Generation &

Transmission v. Shoshone River Power, 874

F.2d 1346, 1351-53 (10th Cir. 1989), and

have applied the doctrine in cases involving

claims of immunity to determine that a

plaintiff's substantive claims were barred,

see Petrini v. Howard, No. 88-2204, slip op.

at 2-3 (10th Cir. Nov. 15, 1990) [1990 WL

176845 at 2); Hill v. Department of the Air

Force, 884 F.2d 1318, 1320 (10th Cir. 1989),

cert. denied, 110 S. Ct. 2206 (1990); see

also Dube v. State Univ., 900 F.2d 587, 598-

APP. 1

600 (2d Cir. 1990); 15 C. Wright, A. Miller

& E. Cooper, Federal Practice & Procedure

§3914.20 (1990 Supp.). However, even

assuming that our jurisdiction could extend

to a plaintiff's cross-appeal from a

defendant's interlocutory appeal of a denial

of immunity, see Barrett v. United States,

798 F.2d 565, 571 (2d Cir. 1986) (cross

appeal of grant of immunity permitted where

issues same as direct appeal of denial of

immunity to other defendants), the

plaintiffs in this case have not filed a

cross-appeal. In all of the above cases,

the court of appeals considered an exercise

of jurisdiction to consider otherwise non-

appealable issues raised by an appellant or

cross-appellant. Thus, in Idarado, Tri-

State, Petrini, Hill, Dube and Barrett, the

only pendent issues considered were those

raised by an appealing party. In no case

APP. 1

did a court reach out to decide an issuc

when the party adversely affected had not

appealed the adverse order. Accordingly, we

Simply do not have jurisdiction over the duc

process and privacy issues. Appellate

resolution of those issues must await

another day.

Plaintiffs Clark and Sharon Snell use

their private home as a foster care

environment for children whose natural

parents are unable to care for them.* The

“The district court has done an

admirable job of distilling the pleadings

into a lengthy set of undisputed facts, and

facts deemed established for purposes of

Summary judgment, viewing the evidence in

the light most favorable to the plaintiffs

who opposed a grant of absolute or qualified

immunity, Anderson v. Liberty pony. 477

U.S. 242, 255 (1986). See Snell, 698

F.Supp. at 1548-56. Our factual summary

APP. 1

Snells’ natural and adopted children, as

well as children the Snells care for under

various guardianship and custody

arrangements, reside in the home. On August

26, 1987, defendant Padley applied to the

juvenile division of the state district

court seeking the court's assistance with a

DHS investigation, after the district

attorney, who normally would file such an

application, refused repeatedly to become

involved. The supporting grounds of the

application provided in part:

i. DHS has received allegations of

neglect, lack of supervision, child

prostitution and child pornography in

the Snell's home in violation of 21

O.S. §§ 843-48.

2. DHS has received allegations that

the Snells are effectively operating

an unlicensed emergency shelter, child

care facility, or foster home in

violation of the Oklahoma Child Care

Facilities Licensing Act, 10 O.S.

§401 et seg.

APP. 1

3% DHS has been unable to complete

the child abuse investigation due to

lack of cooperation by the Snells.

4. Due to the child abuse allega-

tions and reports received of numerous

children being placed into and out of

the Snell's home, DHS is concerned

regarding the health, safety and

welfare of the children residing with

the Snells. The number and identity

of the children residing with the

Snells is unknown.

In _ re Child Abuse and Licensing Investi-

gations of the Clark and Sharon Snell Home

by the Oklahoma Dep't of Human Serv.,

Application at 1 (Okla. County Dist. Ct.

Aug. 26, 1987), reproduced in rec. vol. I,

doc. 1, ex. A. Primarily on the strength of

the allegations of pornography, prostitution

and denial of access to the children, the

State district judge issued an ex parte

order authorizing DHS personnel, accompanied

by the police, to enter the Snell residence

and investigate these allegations. In re

Child Abuse and Licensing Investigations of

APP. 1

the Clark and Sharon Snell Home by the

Oklahoma Dep't of Human Serv., Ex Parte

Order at 1 (Okla. County Dist. Ct. Aug. 26,

1987), reproduced in rec. vol. III, doc.

114, ex. A. The ex parte order directed

that the children in the Snell home be

placed in protective custody if the Snells

could not produce a valid custody order for

each child or if the welfare of the children

was endangered. Id. at 1-2. Because the

Snells could not produce documents

evidencing court-ordered custody, seven

children were removed from the home and

Placed in a juvenile shelter. At a

subsequent hearing, the police detective

involved in the case testified that the only

allegations of child pornography came from

defendants Asbury, Levingston and Sweptson.

Rec. vol. III, doc. 114, ex. 0 at 68; see

also id., ex. W at 18-19 (tracing

APP. 1

pornography and prostitution allegations to

defendant Levingston). Although two

complaints about the lack of supervision and

order at the Snell residence had occurred,

Snell. 698 F. Supp. at 1549, the child

prostitution and pornography allegations

were groundless, assuming arguendo that such

allegations were ever received.

The Snells and certain DHS employees

have experienced less than an amicable

relationship. A variety of alleged

complaints against the Snells, ranging from

improper supervision to failure to return

children, have been processed by DHS over

the years. The Snells have complained in

turn about various DHS employees and custody

decisions made by DHS.

In 1986, the Snells complained to DHS

on two occasions concerning DHS social

APP. 1

workers. First, the Snells complained about

a DHS worker's “inappropriate visit" to

their home and questioning of Mrs. Snell.

mes Wen. £EZ, Goes 114, ex. P at 3.

Second, they disagreed with a DHS

determination that a child who had been

placed in the Snell home for over one year

should be returned to the natural mother.

Id. at 4. The Snells were uncertain that

the mother was capable of taking care of the

child and complained that a DHS worker had

inaccurately reported information furnished

by them. Id. In February 1987, they

complained to the DHS, the governor's, the

attorney general's and the district

attorney's offices about a DHS worker

handling a case in another county. Id. The

Snells believed that the case was mishandled

and the father involved was using AFDC

payments to pay restitution rather than feed

_ EE

APP. 1

his children. Id. According to the Snells,

the children were neglected, lacked adequate

food and may have been subject to physical

abuse. Id. Allegedly, DHS revealed Sharon

Snell's name to the father and the father

threatened her. Id.

The Snells have had frequent visits

from DHS personnel since they adopted their

first child in 1981. Id. at 1. They list

nine different DHS workers who have visited

the home and state: "We have never denied

agents of the Oklahoma Department of Human

Services access to our home." Id. at 1-2.

In April 1987, two DHS Licensing Division

employees (Prins Anderson and Judy Collins)

made an on-site visit to resolve various

complaints about the Snells and to determine

whether they were in compliance with state

licensing laws. The DHS employees

determined that “the Snells are not in

APP. 1

violation of the Child Care Facilities

Licensing Act." Rec. vol. III, doc. 114, ex.

S at 2.

DHS social worker David McClain

investigated the Snell home in July 1987,

based upon an anonymous complaint of neglect

and inadequate supervision. See rec. vol.

II, doc. 115, ex. U. Plaintiffs' evidence

indicates that the report generated by this

visit did not indicate a problem with care:

The interior of the home was

remarkably clean and organized

with this many children about the

house. The worker counted 11

children in the house. The

children were clean; appeared to

be in good physical health and

appropriately clothed. There was

evidence of daily housekeeping

activity. The older children

were assigned age appropriate

chores to be done on a daily

basis. The children gave the

appearance of being well fed and

happy to be a part of this

household.

APP. 1

Rec. vol. II, doc. 115, ex. V (Form CWS 14-

A). The Snells would not identify the

children in their care and McClain raised

several questions about this in his

report. While McClain was present, the

‘The report contains the following

questions:

1) How many of these children were

legally adopted by the Snells'

[sic]?

2) How many children reside in this

home by actual parental agreement

Or a guardianship order?

3) Are Mr. and Mrs. Snell continuing

to provide short term/long term

care for children in the absence

of their parents?

4) Is the Snell home an actual

extension of the Jesus House

thereby requiring a certificate

of need and other licensing

requirements as set forth by the

State of Oklahoma?

5) Are the donations received by Mr.

and Mrs. Snell going directly to

provide for these children's

needs?

6) Are the lives of these children

in jeopardy because this home

appears to be exempt from all-

City-County-State-Federal

licensing requirements as well as

APP. 1

Snells were in telephonic contact with their

counsel. The Snells maintain that McClain

indicated such disclosure was voluntary.

Rec... VOL. tile GOOG. 444, OG8- F Ot Be TF Be

They told McClain that the children in the

home were adopted or were wards pursuant to

legal guardianship or were there by parental

consent. Id. McClain's report, also signed

by defendant Sweptson, indicates that the

investigative findings were uncertain and

that a copy of the report would be provided

for information only toc the district

attorney for Oklahoma County Juvenile Court.

Rec. vol. Boe @OQs. AbSe Ge Ve The

report's recommendation to the district

attorney for the Oklahoma County Criminal

prudent judicial review

concerning issues of custody and

placement of minor children in

the absence of their parents?

Rec. VOL. II, Goc. 145, GR. Ve

APP. 1

Court was that additional investigation

concerning possible criminal prosecution of

"non-accidental physical or mental injury,

sexual abuse or neglect appears indicated."

Id. This recommendation is paradoxical

given that the report makes no mention of

such allegations. *

The Snells maintain that during his

investigation, McClain made derogatory

comments concerning them to neighbors and

told one that the Snells had been “run out

of Bethany." See rec. vol. I, doc. 63 at 9;

Id. vol. III, doc. 114, ex. D at 42. This

prompted a July 20, 1987 meeting between

Clark Snell and DHS officials in which Snell

“Plaintiffs have provided evidence

which indicates that the CWS 14-A report

produced for discovery differs from the

original and omits allegations of child

abuse, child pornography and child

prostitution. See Rec. vol. II, doc. 115,

ex. J at 39-41.

APP. 1

aired his complaints about DHS. These

complaints were referred to Lissa Vernon,

the supervisor of Child Welfare Field

Services, DCYS, who in turn referred them to

Mary Asbury, the district supervisor in

Child Welfare Field Services. Rec. supp.

vol. II, doc. 150, ex. A at 24-25.

Vernon also referred a complaint about

the Snells to Asbury. In a memo dated July

23, 1987, Asbury discussed various

allegations against the Snells: 1) they

misled unnamed parents into granting them

custody of children as an alternative to

child welfare services (CWS), 2) they

frequently complained about DHS personnel,

3) the Snelis* reporting of abuse and

neglect to CWS “was more like harassment as

the Snells called demanding an investigation

be done immediately, several times in a

————<<<—

APP. 1

short period of time," 4) various neighbors

complained about the number of

children in the Snell home and the quality

of care, 5) Mr. Snell was "vague" about the

source of his financial assistance to

operate his home, 6) although Mr. Snell

claimed that his principal source of income

was from an appliance repair business, a

business listing appeared only in the white

pages of the telephone directory without an

address, 7) the assessor's office did not

list Mr. Snell as an owner of his home,

which was valued at approximately $150,000,

and 8) after a complimentary article about

the Snells ran in the newspaper, CWS

received a call from the Warr Acres police

alleging that they were known drug dealers.

Rec. vol. II, doc. 115, ex. Il. The tenor

of Asbury's report is best described in its

con-cluding paragraph:

APP. 1

In conclusion, we have a couple

who on the surface appear to be

wonderful philanthropic people

who only want to care for

children with no bureaucratic red

tape. However, legitimate

questions can also be raised

regarding their ability to care

for this number of children; the

actual facts regarding these

children coming into their care;

the quality of the care and the

source of funding.

Id. DHS continued its investigation,

concentrating on complaints about’ the

Snells, rather than complaints by the Snells

about DHS.

DHS received three adverse reports

concerning the Snells in iate-July and

early-August 1987. A neighbor complained

that children from the Snell home lacked

adequate supervision when playing. Id. ex.

Z at il. An in-law of Mrs. Snell's son

complained that the Snell house was dirty

and the children were neglected. Id. at 2-3

htatseaiieeaealineieieen enna

APP. 1

and Fails depo. at 40. A retarded eleven-

year old boy, G.H., whose mother could no

longer cope with his severe emotional

disorders, was the source of another

complaint. G.H. alleged that during a

temporary stay at the Snell home, Mr. Snell

struck and kicked him and told him he could

either go to jail, stay with the Snells, or

be killed. Rec. vol. II, ex. Bl (CWS 14-A

report). Mr. Snell and his housekeeper

indicated that G.H.'s mental problems,

including sexual and physical aggres-

Siveness, and physical problems, including

encopresis, were beyond what the Snells

could handle given their responsibilities to

the other children in the home.

Asbury assigned the investigation of

these complaints to defendant Sieck, rec.

vol. I, doc. 93, ex. 1 at 2, who in turn

assigned the investigation to defendant

APP. 1

Levingston, Id. ex. 6 at 1. However, action

on investigating these complaints’ was

deferred, contrary to DHS policy concerning

these types of allegations. See DHS Child

Welfare Services-Child Abuse/Preventive

Services Procedures § 622.4 (10/1/84),

reproduced in rec. vol. III, doc. 114, ex.

I. Two days later, on August 12, 1987, a

DHS meeting was held between Asbury, Vernon,

defendant Padley and licensing division

employees Collins and Anderson to discuss a

variety of topics concerning the Snells,

including: 1) the large number of children

in and out of the home, 2) claims by Jesus

House”® clients that the Snells threatened

to call DHS if the parents did not release

their children, 3) Clark Snell's criminal

“Jesus House is a shelter for the

homeless. The Snells have worked there as

volunteers and remain in contact with the

personnel who operate the shelter.

APP. 1

conviction and sub-sequent incarceration

(1974-75) and his failure to disclose this

in adoptive home studies, 4) Clark Snell's

income and the likelihood that it could be

derived from his appliance repair business

given that the business was listed only in

the white pages of the telephone directory,

5) Asbury's incorrect belief that DARE (Drug

Addict Recovery Enterprises, Inc.) did not

exist and therefore could not be providing

support to the Snells, 6) whether the Snells

could be named guardians based upon a signed

and notarized parental statement, and 7)

Clark Snell's refusal to identify the

children in his care when asked by social

worker McClain. Rec. supp. vol. II, doc.

150, ex. D at 201-24. A decision was made

to refer these matters to the police for

investigation and to contact assistant

APP. 1

investigation and to contact assistant

district attorney Rebecca McNeese for her

assistance. Id. at 223-24.

At the request of defendant Levingston,

detective J.M. Einhorn met with defendants

Sweptson and Asbury on August 14, 1987.

Rec. supp. vol. II, doc. 150, ex. G at 49-

50. The defendants expressed concern that:

1) a large number of children and adults

were entering and leaving the house at all

hours, 2) the Snell home was not licensed,*®

3) the Snells had refused to disclose the

identity of all the children to DHS and 4)

Clark Snell had not disclosed his criminal

record to DHS. Id. at 51-57. The lower

court viewed this meeting as “the genesis of

“Detective Einhorn testified on

deposition that this department did not

routinely investigate licensing violations.

Rec. supp. vol. II, doc. 150, ex. G at 54.

FP. i

the pornography} ;

p gr apay and prostitution

suspicions." Snell. 698 F. Supp. at 1550.

Detective E. ; ;

rinhorn's testimony

» ce

concerning the sour e of the pornography and

, at. : : :

prostitution allegation. is incon-sistent.

At the hearing held 1, day after the seven

children were remove, ¢rom the Snell home,

he testified that these allegations were

first made by DHS, cpecifically Asbury,

Sieck and Sweptson, +rec. vol. III, doc.

114, ex. 0 at 68; at 4 later deposition, he

testified that the allegations were

generated during @4 discussion between

Sweptson, Asbury and himself. Rec. supp.

vol. II, doc. 150, ex. G at 106-07. He

could not say who initiated the allegations.

Id. Einhorn indicated also that suspicion

concerning child prostitution and

pornography arose once he and DHS were

informed that Clark Snell was sought for

APP. 1

questioning by FBI special agent Leslie

Treece. Id. at 53.

Agent Treece sought Clark Snell merely

to comply with a request for information

from another FBI district concerning a child

prostitution investigation. The FBI was

investigating a person suspected of using

his children for,child prostitution, and

this person had stayed at Jesus House for a

short time. The FBI merely wanted to ask

Clark Snell some questions about the

Suspect. As DHS was well aware, Clark Snell

never was a subject of that investigation.

According to agent Treece, some time

prior to August 26, 1987, detective Einhorn

asked her to contact defendant Levingston

based upon “complaints regarding possible

child pornography or prostitution, or

something unusual going on at the Snells'

house." Rec. vol. III, doc. 114, ex. W at

APP. 1

16. Agent Treece met with Asbury and

defendant Levingston. Rec. vol. I, doc.

160, ex. 7 at 242-44. Asbury understood

that agent Treece was seeking to interview

Clark Snell in connection with a man from

out-of-state who had passed through Jesus

House, but that Clark Snell was not the

subject of inquiry. Id. at 244.

Agent Treece indicated that this was

the first time she had heard about

allegations concerning child pornography or

prostitution in relation to the Snells. She

spoke to defendant Levingston who indeed

made such allega-tions in the context of

discussing complaints received by DHS

against the Snells. Rec. vol. Iiz, Gee.

114, ex. W at 17-19. When the order

authorizing police intervention into the

investiga-tion finally was obtained from

Judge Brown, defendant Levingston invited

APP. 1

agent Treece to be present when the order

was enforced. Id. at 24-25. However,

Treece declined as there was no evidence of

any violation of federal law. Id.

Rebecca McNeese, assistant district

attorney and the team leader of the juvenile

division at the district attorney's office,

was familiar with the DHS investigation of

the Snells because DHS repeatedly sought to

involve the juvenile division. McNeese

indicated that her division viewed seizure

of children from a caretaker as appropriate

only when there is a showing of imminent

or actual harm to the child. Rec. vol. II,

ex. J at 7-l1l, 14. Normally, DHS would

first contact police so the police could

determine whether a child needed to be

placed in custody. Id. at 11-12. If the

DHS worker decided to pursue a court order

APP. 1

through the juvenile division, the DHS

worker would complete a report of the

investigation (Form CWS-14A) and forward it

to the juvenile division for review. Id. at

has McNeese indicated that for strong

policy reasons the division would not seek

a pick-up order based upon a representation

of a DHS worker that parents or guardians

were uncooperative without some evidence of

abuse or neglect. Id. at 15. On August 18

or 19, 1987, McNeese was approached by

defendant Padley for a “favor" regarding the

Snells. Id. at 29. McNeese cut the

conversation off abruptly and did not learn

what favor was sought. Id.

Plaintiffs' evidence in this case tends

to show that the DHS searched for a statute

upon which to base their investi-gation of

the Snells. Thus, DHS expressed concern

with whether the Snells had guardianship of

APP. 1

more than five unrelated children, see Okla.

Stat. Ann. tit. 58, § 773 (West 1965)

(renumbered as tit. 30, § 4-101 (1990

Supp.)).’ For reasons hardly clear, Asbury

7Okla Stat. Ann. tit. 58, §773 (West

1965), then provided:

No person shall be appointed

guardian of any minor or minors, or

other person or persons who is, at the

time of the hearing of the application

for appoint, the guardian of as many

as five persons, other than his or her

own family or relatives; provided that

the provisions of this Section and

Section 774 of this Title [58] shall

not apply to boards cf control and

Superintendents of eleemosynary or

charitable institutions, under the

control and charge of the state, where

under the law such boards of control

and superintendents may be appointed

as guardians of the estates, or of the

persons, of those committed to their

charge or safekeeping; provided, the

provisions of this Act [Okla. Stat.

Ann. tit. 58, §§773, 774] shall not

prohibit the appointment of officers

Or managers of fraternal or benevolent

orders or homes and church orphanages

as to inmates of such institutions.

APP. 1

and defendant Levingston also were concerned

with the words “upon conviction" as used in

Okla. Stat. Ann. tit. 10, § 410 (West

1987)," insofar as those words might apply

to the Snells. See rec. supp. vol. II, ex.

K at 110.

About a week before Judge Brown entered

the order authorizing investigation and

A violation of the above statute is a

misdemeanor. Okla. Stat. Ann. tit. 58 §774

(West 1965) (renumbered as tit. 30, §4-102

(West Supp. 1990)).

"Okla. Stat. Ann. tit. 10, §410 (West

1987), part of the Child Care Facilities

Licensing Act provides:

Any person or agent, representative,

or officer of any child care facility

who violates any of the provisions of

this act shall, upon conviction, be

deemed guilty of a misdemeanor and

punished in accordance with the

provisions of 21 0O.S. 1961, §10.

Whenever any agent, representative, or

officer of any child care facility

shall be convicted under authority of

this act, such conviction shall be

sufficient grounds for the revocation

of the license of said licensee.

APP. 1

conditional temporary custody, defendant

Sweptson arranged a meeting with Clark

Snell. Snell states that he was told to

come without counsel, and that Sweptsor. was

concerned about leaks to the press. Rec.

vol. III, doc. 114, ex. El at 13. Sweptson

then discussed the allegations of abuse made

by G.H. against the Snells. Id. at 12-14.

According to Snell, Sweptson told him, "'You

know, anything could happen with that.'” Id.

at 14. Snell then said: "'You know we

haven't done anything wrong. And why can't

we have these other people at the meeting at

the State Office like we did before.'" Id.

To which Sweptson allegedly replied: "'You

don't have to do anything wrong out here.

All we have to do is shuffle some papers

around, and we can make anything fit.'” Id.

APP. 1

The events of August 19, 1987 as

portrayed by plaintiffs' evidence represent

the first attempt to enter and remove the

children from the Snell home so as to

proceed with the investigation. Upon the

isetructions of Asbury, defendant Levingston

went to the police station and talked with

Captain Griffith about the guardianship

statute, supra note 7, and the allegations

against the Snells. Rec. supp. vol. II,

doc. 150, ex. K at 53, 56-57. Defendant

Levingston voiced her belief that the

statute in view of the allegations justified

police assistance with the investigation in

the form of picking up the children. Id. at

58. Captain Griffith wanted to see the

statute before intervening; later that day,

Hilde Lillegaard of the DHS licensing

division and defendants Sieck and Levingston

returned to the police station with a copy

APP. 1

of the statute, but the sergeant on duty

told them that he would need a court order

before he could pick up the children. Id.

at 54-55, 59. Defendant Sieck then informed

Asbury of this turn of events. Rec. vol. I,

doc. 160, ex. 7 at 264. About 6:30-7:30

p.m., defendant Sieck telephoned Asbury

requesting the telephone number of Judge

Brown. Id. at 264-65. Asbury and defendant

Sieck were unable to reach Judge Brown;

however, Asbury did reach Judge Wilson of

the juvenile division. Id. at 265. Judge

Wilson wanted to speak to them in person

before intervening. Id.

Lillegaard and defendants Sieck and

Levingston apparently made a field visit to

the Snell neighborhood on the evening of

August 19. From the home of one of the

Snells' neighbors, defendant Sieck then

called Judge Brown and advised him that the

APP. 1

Snells might be moving. Rec. supp. vol. II,

doc. 150, ex. K at 77. She told Judge Brown

of the allegations against the Snells, of

the suspected violation of the guardianship

statute and that the police sergeant on duty

would not pick up the children without a

court order. Id. at 79. Judge Brown

advised that he would issue an order if she

thought it was an emergency, but that he

would need the number of the police station.

Id. at 80-81. Although defendant Sieck

viewed the situation as constituting an

emergency, defendant Levingston told the

judge that they would get back to him with

the number of the police station if they

decided in favor of a removal order.

Lillegaard and defendants Sieck and

Levingston then called defendant Padley to

update her on the evening's events; Padley

indicated that she did not agree that a

APP. 1

violation of the guardianship statute

warranted removal of the children. Id. at

84-85.

Apparently, assistant district attorney

McNeese later was contacted by Judge Brown

concerning this DHS attempt of August 19 to

obtain a removal order; she indicated to the

judge that DHS simply had no evidence of

abuse or neglect.” Rec. vol. II, ex. J at

26. McNeese understood that the judge was

*DHS policy concerning the preparation

of a case for court provides:

All observable information is recorded

precisely and quantitatively. In

recording evidence designate where,

who, how long, what time, and how

many. If impressions are recorded,

they are designated as such and

related to observed activities.

DHS Child Welfare Services-Child Abuse/

Preventive Services Procedures §§623.6(D)

(19/1/84), reproduced in rec. vol. III, doc.

114, ex. I. This procedure obviously was

not followed concerning the allegations of

child prostitution and pornography which

form the basis of this case.

APP. 1

willing to consult with the police, but not

authorize a removal order. Id.

The next day, August 20, 1987,

assistant district attorney Steve Sullins

was approached by defendant Sieck for a

pick-up order based upon the Snells' alleged

violation of the guardianship statute. Id.

at 28. Sullins com-municated this to

McNeese, who wrote a memo to the DHS court

liaison, Kathy O'Malley, expressing her

displeasure with the DHS attempt to "shop"

for a DA who would cooperate in obtaining a

removal order given DHS' lack of written

evidence. Id. at 27-28.

Around August 24, 1987, Asbury gave

defendant Levingston a copy of a statute

contained in the Child Care Facilities

Licensing Act, supra note 8, which used the

words “upon conviction." Rec. supp. vol.

Les: Ss £2es. Oa. Ek at. 207. Defendant

Levingston then sought an interpretation of

the statute's applicability to the Snells

from several sources including another

assistant district attorney, Mary (Mimi)

Smith. Id. at 107-08. When the DHS court

liaison learned that the Levingston's

inquiry involved the Snells, the liaison

indicated that the inquiry should not be

made because of McNeese's directive. Id. at

108-09. Defendant Levingston, with the

approval of defendants Sweptson and Sieck,

then approached Judge Brown for an

interpretation of the statute and ostensibly

learned that the “upon conviction" language

“did mean that it was a misdemeanor and that

the parents could be arrested." Id. at 114.

To defendant Levingston, this meant

that the Snells could be arrested, but on

August 26, 1987 she asked detective Einhorn

app. 1

to call the judge and COmfirm her under-

standing of the judge's interpretation. Id.

at 116-17, 118-119. getween 9:00 and 9:30

a.m., defendant LeviniSt0" learned from

Einhorn that Judge Bro” “45 inclined to

issue a pick-up orde ’ Id. at 118.

Detective Einhorn calle. P@71¢y indicating

that Einhorn had talked ““*" Judge Brown.

mec. vol. 12, a. Sa”

‘ated that

judge initially had indi. hat the order

Olice, ;

wuld bo teed totes

n, the judge wanted

least according to Einho: judg

, Yather than the

an application from DH:

. Einhorn wanted

district attorney. Id

le an application

defendant Padley to fi

basis for entry of

which would provide the

Defendant Padley

such an order. Id.

n that she was

testified on depositi

- checking with the

reluctant to do so withou

Id. at 158. She

district attorney first.

APP. 1

instructed Einhorn to check with the

district attorney; Einhorn checked and

reported that the assistant district

attorney considered the Snells a DHS

problem and the DA's office is not going to

get involved." Id. at 159. Defendant Padley

felt that Einhorn “was attempting to put

some pressure on me to take an action." Id.

at 158.

According to defendant Padley, she then

recounted to Einhorn her understanding of

the Snell situation to date:

I told him that I knew we had

pending child abuse allegations

in the Snell household, both

neglect and abuse, and that I

knew the FBI has contacted us in

reference to the Snells and had

indicated they wanted to contact

Mr. Snell in connection with an

investigation they were doing in

child prostitution and porno-

graphy, but that there were no

allegations that the Snells were

involved in child prostitution,

pornography, trafficking of

children.

APP. 1

I then asked him if he knew of

anything I didn't know.

He [Einhorn] indicated yes, there

was, that he had information that led

him to believe and that he was

investigating an allegation of child

prostitution and pornography as to the

Snell home.

He [Einhorn] indicated to me that

he had been in touch with an out-of-

state police department, and that

there was some connection between a

person that this out-of-state police

department was investigating in

connection with child prostitution,

pornography, trafficking in children,

and the Snells, and that this person

was traveling back and forth between

the states into the Snell household.

Id. at 160-163. According to defendant

Padley, Einhorn "said that he had

allegations that the Snells were involved in

child prostitution, pornography and

trafficking children." Id. at 164. Defendant

Padley would later learn that there were no

such allegations.

Defendant Padley may not have been the

only one who was led by Einhorn to believe

APP. 1

that there was more information concerning

the Snells and child prostitution and

pornography; Judge Brown "was really taken

aback" by the limited nature of Einhorn's

testimony after the children were picked up,

Given Einhorn's earlier representations

which led to the issuance of the removal

Order. Rec. vol. III, doc. 114, ex. Dl at

44; see also id. at 46.

*°Judge Brown testified on deposition:

Q: If Detective Einhorn

{at the later hearing)

had denied relating any

allegations involving

nefarious sexual

activity like child

prostitution, child

pornography, or child

trafficking while he

was under oath, what

would be in direct

contradiction to what

he told you wouldn't

it?

Judge Brown: That's correct.

Rec. vol. III, doc. 114, ex. Dl at 46.

APP. 1

The day of August 26, Judge Brown

contacted defendant Padley, and she returned

his call to find that he was on the bench,

but that he wanted to set up an appointment.

Rec. vol. III, Goce. 114, G8. C @¢ 3959, 363-

At some point during the day, defendant

Padley contacted Judy Collins in the DHS

licensing division. Rec. vol. III, doc.

114, ex. C at 187. According to Collins,

defendant Padley discussed the idea of

"getting an order to force the Snells to

cooperate as it relates to licensing and

looking at papers and things like that," and

asked her opinion. Rec. vol. III, doc.

114, ex. N at 47. Collins expressed her

view that if it was solely a licensing

issue, another field visit to the Snells was

in order to request documentation on the

children. Id. at 49-50.

APP. 1

Later in the day, defendant Padlcy

spoke with Judge Brown. He wanted her to

file an application so that the court could

assist in the investigation and protect the

children. Id., ex. C at 169. Judge Brown

relied upon defendant Padley to coordinate

the factual information in the case. Id.,

ex. Dl at 41-42. She told Judge Brown that

she would get back to him. Id., ex. C at

169. Defendant Padley then attempted to

contact DHS personnel including Charles

Waters, Conley Tunnell, Lissa Vernon, Prins

Anderson and Mary Asbury, but was unable to

reach them. Rec. vol. I, doc. 96, ex. 3 at

184. Tunnell, Vernon and Asbury have stated

affirmatively that they were not involved in

the events of August 26. Id. ex. 1 at 7,

ex. 9 at 2, ex. 10 at 2-3. Defendant Padley

did talk with defendants Sweptson,

Levingston and Sieck and someone in the

APP. 1

licensing division before preparing the

application and walking it over to the

judge's office. Rec. vol. III, doc. 114,

ex. C at 187. The judge looked at the

application and began dictating his order.

Id. at 188.

Defendant Padley delivered the

application and order to defendant

Levingston, who reviewed the order along

with defendants Sieck, Padley and perhaps

defendant Sweptson. Rec. vol. I, doc. 96,

ex. 6 at 2. Lillegaard and defendants Sieck

and Levingston took the order to the police

station and presented it to Sergeant George

Johnson for enforcement. Id. at 3. On

August 26 at about 5:30 or 6:00 p.m.,

Lillegaard and defendants Sieck and

Levingston accompanied the police to the

Snell residence and seven children were

removed based upon lack of custody

jocuments. Id. at }. The housekeeper

reported to Mrs. Snell that the group icd by

tne DHS social workers just barged in

without knocking or ringing the doorbell! and

proceeded to gather the children. Rec. vol.

III, doc. 114, ex. D at 50-51. In gathering

the children, Sergeant Johnson “observed

that the house was generally clean and neat.

and he “saw no obvious indications of child

abuse or neglect.” Id. ex. E at 2.

Defendants Sieck and Levingston actively

assisted in the police investigation in the

home .

Plaintiff Sharon Snell (Mrs. Snell)

arrived at home about thirty minutes after

the police and DHS socia) workers arrived.

Id. ex. D at }. me WaS presented with a

document which included allegations that the

children were unsupervised while riding

bicycles and were left at the neignbors for

APP. 1

extended periods. Id. at 14-15. According

to Mrs. Snell, defendant Levingston

attempted to talk to her, but Mrs. Snell

went into her bedroom and attempted to phonc

her husband at work and Sister Ruth at Jesus

House. Unable to reach them, Mrs. Snell

finally reached Eloise Harris, a DHS social

worker. Id. at 11-13 Again, according to

Mrs. Snell, defendant Levingston grabbed the

telephone, slammed it down and said: "'If

you don't let me--If you don't talk to me,

I will get the police in here and they will

make you talk to me.'" Id. The social

workers then insisted on seeing the

paperwork on the children “and if I did not

cooperate, . . . the police would force me

to cooperate. That's what they were there

for." Id. at 15.

Mrs. Snell then went from the bedroom

to a desk in the living room which had the

APP. 1

files on the children. According to mrs.

Sneil, upon seeing the first court order on

one of the children, defendant Sieck said:

“'That is not a legal document because it

was rubber stamped [by the Oklahoma County

District Court Clerk].'" Id. at 16. In the

presence of defendant Levingston, defendant

Sieck then directed the police: "To load up

these kids, this lady does not have any

legal documents on these kids." Id. Mrs.

Snell then returned to her bedroom and gave

the housekeeper permission to show the

records to the social workers and police.

Id. at 18. During this time, Mrs. Snell

tried to call Hilde Lillegaard at DHS, not

realizing that Lillegaard was present and

making repeated apologies. Id. at 18, 34.

Over an hour later, after the police and

social workers had gone through all of the

Snells' files, the police had a list of

APP. 1

seven names for which no court ,custody

documents had been found. Id. at 23; Id.

ex. E at 4. Sergeant Johnson asked

defendants Sieck and Levingston if the seven

children could be left with the Snells

overnight because the Snells were likely to

get the matter taken care of the next day.

Id. ex. C at 24; Id. ex. D at 4. Defendant

Sieck responded: “They could run with the

kids. It's happened before.*” Id. ex. C at

25. according to the sergeant, he was told

by DHS workers that the court's order

directed removal of the children in the

absence of valid court orders concerning

custody and that the circumstances in the

home would not allow for interviews with the

children. Id. ex. D at 4. accordingly,

Sergeant Johnson decided to take the

children into custody.

APP. 1

All during this time, the children had

been placed in groups. Id. Defendant

Levingston inquired about Patricia Turtic,

@ child with medical problems. According to

Mrs. Snell, defendant Levingston then told

@ nearby poli ec officer that, "'no Indian

tribe would ever leave a child in this

home.'" After the decision had been made to

take the children, Mrs. Snell asked

defendants Sieck and Levingston if two of

the seven children could remain because

efforts were being made to contact their

matural mother. Id. ex. C at 30. This

request was denied by both defendants with

the comment that the natural mother could

see her children at the shelter. Id.

As the DHS workers gathered the seven

children, one of the children ran upstairs

in an effort to hide and was retrieved

forcibly by defendant Sieck. Id. at 31-32.

APP. 1

At approximately 7:30 p.m., the seven

“hildren were taken in the rain, without

blankets, without car seats for the very

young and without necessary medicine,** to

the Oklahoma County Juvenile Center. Id.

ex. D at 35, ex. E at 5, ex. F. When one of

the bystanders asked if blankets would be

used to cover the children given the rain,

defendant Levingston reportedly said:

“'Children of this culture are used to the

elements.'" Id., ex. D at 35.

The next day, the Snells learned from

counsel of the damaging child prostitution

‘inefendant Levingston indicates that

Mrs. Snell and other adults at the Snell

home refused to cooperate in getting the

children ready to leave and became somewhat

abusive. Rec. vol. I, doc. 96, ex. 6 at 3.

This is corroborated by Sergeant Johnson,

who indicated that the situation

deteriorated as the children were removed.

Id. at ex. 7 at 5.

APP. 1

and pornography alicgations. Id. at 53-54.

Not revealing these damaging allegations

earlier is directly contrary to the spirit,

and the letter, of DHS regulations

concerning mandatory disclosure by social

workers in the course of child abuse

investigations. See DHS Child Welfare

Services-Child Abuse/Preventive Services

Procedures §§ 622.4, 623.7(A)** (10/1/

**Under the title of “Due Process

Procedures,” the DHS manual provides:

A. o

A . arents must receive a4

clear, precise explanation of

allegations that have been presented.

The explanation of allegations must

occur immediately upon initial contact

with the parent(s)/quardian. The

worker also advises them of the

agency's role in relation to the

allegation, and of the statutes that

exist to protect children in Oklahoma.

DHS Child Welfare Services-Child Abuse/

Prevention Services Procedures §623.7(A)

(10/1/84), reproduced in rec. vol. III, doc.

114, ex. I.

— L&T

APP. 1

84), reproduced in rec. vol. III, doc. 114,

ex. I. At the hearing of August 27, 1987,

detective Einhorn testified that the

allegations of child prostitution and

pornography arose in DHS through Asbury**

and defendants Levingston and Sweptson.

Rec. vol. III, doc. 114, ex. 9 at 68. On

cross-examination, he denied having any

other information. The allegations of child

prostitution and pornography were not even

colorable, and all involved concede that a

removal order plainly would be unwarranted

merely to learn the identities of the

children in the Snell household, their

relationship to the Snells, and to conduct

another review of the licensing situation.

See rec. vol. III, doc. 114,; ex. C at 277-

**The federal district court appears

not to have considered this evidence linking

Asbury to the ultimate issuance of the

order.

APP. 1

78 (Padley); ex. N at 60 (Collins); ex. Dl

at 43 (Judge Brown).

Il.

Defendants first contend that they are

entitled to absolute immunity ir this § 1983

action because their activities as social

workers are intimately associated with the

judicial process. According to defendants,

“(rJesponding and investigating reports of

child abuse or neglect, requesting

assistance from the court in making that

response, and accompanying police officers

executing orders of the juvenile court are

functions intimately associated with the

judicial phase of the juvenile court's

jurisdiction." Brief of Defendants-

Appellants at 29. We reject this broad

proposed standard as out of step with

absolute immunity precedent.

—

APP. 1

The Supreme Court has recognized the

defense of absolute immunity from civil

rights suits in several well-established

cortexts involving the judicial process. A

judge acting in his judicial capacity is

absolutely immune from such suits, unless

the judge acts clearly without any colorable

Claim of jurisdiction. St v. §$

435 U.S. 349, 356-57 (1978); Pierson v. Ray,

386 U.S. 547, 553-55 (1967). <A prosecutor

is absolutely immune for activities which

are “intimately associated with the judicial

process” such as initiating and pursuing a

criminal prosecution. Imbler v. Pachtman,

424 U.S. 409, 430 (1976). However, the same

immunity traditionally does not extend to a

prosecutor's actions which may be classified

as administrative or investigative. Id. at

430-31; Harlow v. Fitzgerald, 457 U.S. 800,

APP. 1

B8ll n.16 (1982). Witnesses, including

public officials and private Citizens, are

immunc from Civil damages based upon their

testimony. Briscoe v. La Hue, 460 U.S. 325,

341, 345-46 (1983). In deciding questions

of immunity, the Court has taken a

functional approach after considering the

history of common law immunity. Thus, in

Butz v. Economou, 438 U.S. 478, 508, 515-17

(1978), the Court determined that agency

officials who initiate and prosecute

enforcement proceedings subject to agency

adjudi-cation are entitled to absolute

immunity.

The rationale for according absolute

immunity in the civil rights context is to

incorporate traditional common law

APP. 1

immunities** and to allow functionarics in

the judicial system the latitude to perform

their tasks absent the threat of retaliatory

§ 1983 litigation. Because the judicial

system often resolves disputes that the

parties cannot, the s6ystem portends

conflict. Win or lose, a party may seck to

litigate the constitutionality of

circumstances which required him to endure

a lawsuit or suffer defeat. Such suits by

dissatisfied parties might target judges,

see Valdez v. City & County of Denver, 878

F.2d 1285 (10th Cir. 1989), prosecutors and

witnesses. Cf. Mitchell, 472 U.S. at 523.

Though such suits might be satisfying

personally for a plaintiff, they could

**These immunities were present in 1971

when §1983 was enacted as §1 of the Ku Klux

Klan Act, 17 Stat. 13.

APP. 1

jeopardize the judicial system's ability to

function.

Absolute immunity has its costs becausc

those with valid claims against dishonest or

malicious government officials are denicd

relief. Imbler, 424 U.S. at 427; Valdez,

878 F.2d at 1289. Still, the Court has

determined that the smooth functioning of

the judicial system takes precedence over

those meritorious claims which will be

foreclosed by granting absolute inmunity.

Such claims may find partial resolution

through other means, however. The

opportunity for subsequent judicial review

of decisions made by prosecutors and for

subsequent appellate review of lower court

decisions provides a check upon actions

clothed with absolute immunity. Mitchell,

472 U.S. at 522-23. And the grant of

absolute immunity does not insulate an

APP. 1

official from the criminal process or

professional discipline. Imbler, 424 U.S.

at 429.

Thus, “({ajbsolute immunity is

necessary to assure that judges, advocatcs,

and witnesses can perform their respective

functions without harassment or

intimidation.” Butz, 438 U.S. at 512. A

judge must be free to make decisions, often

controversial, without concern about

possible personal repercussions. Stump, 435

U.S. at 363-64. In deciding which cases to

pursue and how they should be pursued, a

prosecutor should not be distracted by the

threat of subsequent and time-consuming and

duplicative civil rights actions. Imbler,

424 U.S. at 424-26. Likewise, a witness

must be free to testify without fear of a

later civil action, so as not to deter

APP. 1

witnesses or influence their testimony.

Briscoe, 460 U.S. at 333.

The more distant a function is from the

judicial process, the less likely absolute

immunity will attach. Thus, in Malley v.

Briggs, 475 U.S. 335, 340-41 (1986), the

Supreme Court reaffirmed that an officer

applying for a warrant is not absolutely

immune from suit, just as a complaining

witness would not be entitled to such

immunity. The Court reasoned that applying

for a warrant “while a vital part of the

administration of criminal justice, is

further removed from the judicial phase of

Criminal proceedings than the act of a

prosecutor in seeking an indictment." Id.

The Court viewed a prosecutor's secking an

indict-ment as “the first step in the

process of seeking a conviction,” id. at

343; application for a warrant often

—— Ee

APP. 1

precedes this first step and serves a

different function.

Several lower courts have considered

whether those involved in child protection

and advocacy, including social workers and

guardians ad litem, are entitled to absolute

immunity. Consis-tent with Supreme Court

precedent, the courts have taken a

functional approach rather then one based

purely on the status of the defendant

involved. See Forrester v. White, 484 U.S.

219, 224 (1988). The courts have looked to

the particular task a defendant was per-

forming and its nexus to the judicial

process rather than deciding that social

workers or guardians ad litem as a class are

entitled to absolute immunity. Although

child dependency proceedings are civil in

nature, they occur against a backdrop of

APP. 1

potential criminal prosecution of the

abusive parent or caretaker. A social

worker's investigation may result in the

removal of children from the home and a

referral to the district attorney for

potential prosecution of a parent or

caretaker. Thus, the civil nature of child

dependency proceedings, per se, has not been

a bar to absolute immunity for social

workers. See Meade v. Grubbs, 841 F.2d

1512, 1532-33 n.18 (10th Cir. 1988)

(extending absolute immunity to cduty to

initiate civil complaint after applying

functional analysis).

The Ninth Circuit has adopted a rule of

absolute immunity for child and dependency

proceedings from origination until

conclusion. In Meyers v. Contra Costa

County Dept of Social Serv., 812 F.2d 1154,

1157 (9th Cir.), cert. denied, 484 U.S. 829

APP. 1

(1987), the court hele that “social workers

are entitled to absolute immunity in

performing quasi-prosecutorial functions

connected with the initiation and pursuit of

child and dependency proceedings.” However,

absolute immunity did not extend to 4 social

worker's ordering a father to stay away from

his home prior to a scheduled court hearing

because such a function was not quasi-

prosecutorial or quasi-judicial. Id. at

1157-58. Such conduct was not that of an

advocate, but rather unilateral action prior

to the operation of the judicial process.

Id at 1157.

Relying upon Meyers, the Ninth Circuit

has held that a social worker seeking a

court order for immediate apprehension of a

newborn from her natural mother is entitled

to absolute immunity for such quasi-

prosecutorial conduct. Coverdell v.

APP. 1

Department of Social & Health Serv., 834

P.2a 758, 764 (9th Cir. 1987). In

Coverdell, the social worker complctecd an

affidavit used by the prosecutor in

obtaining custody of the child. Id. at 760.

Under a theory of quasi-judicial immunity,

the court determined that the social worker

was entitled to absolute immunity for

executing the order by obtaining custody of

the child and removing her from the

hospital. Id. at 764-65. Most recently,

the Ninth Circuit determined that absolute

immunity for a social worker extends beyond

the adjudication of dependency to final

disposition of the case. Babcock v. Tyler,

884 F.2d 497, 503 (9th Cir. 1989), cert.

denicd, 110 Ss. cs. 1118 (1990).

Accordingly, social workers who had placed

two children in a home where they were

APP. 1

sexually abused were afforded absolute

immunity. Id.

The Sixth Circuit also has decided a

trilogy of cases which help define the

limits of absolute immunity for social

workers handling child protection and

advocacy matters. In Kurzawa v. Mueller,

732 F.2d 1456, 1457-58 (6th Cir. 1984), the

court determined that social workers

involved in prosecuting neglect and

delinquency petitions in the Michigan courts

were entitled to absolute immunity, along

with a guardian ad litem who participated in

proceedings leading to the removal of a

child from his parents’ home. Id. at 1457-

58; see also Gardner v. Parson, 874 F.2d

131, 144-46 (3rd Cir. 1989) (guardian ad

litem who testifies in court, prosecutes

custody or neglect petitions, or makes

reports and recommendations to court

APP. 1

entitled to absolute immunity). Thus,

social workers filing a juvenile abuse

petition which resulted in a temporary

emergency custody order were entitled to

absolute immunity. Salyer v. Patrick, 874

F.2d 374, 378 (6th Cir. 1989); accord

Vosburg v. Department of Social Serv., 384

F.2d 133, 135 (4th Cir. 1989). However,

opening a child abuse case, investigating it

and placing a parent's name in a central

registry concerning child abuse are not

quasi-prosecutorial activities for which

absolute immunity applies. Achterhof v.

Selvaggio, 886 F.2d 826, 830-31 (6th Cir.

1989). Rather, these activities are

administrative or investigative. Id.

Several cases applying a functional

approach have declined to grant absolute

immunity to social workers investigating

child abuse allegations. In Spielman v.

APP. 1

Hildebrand, 873 F.2d 1377, 1382-83 (10th

Cir. 1989), we declined to grant absolute

immunity to a Kansas social worker and her

supervisor based upon a decision to remove

two children in preadoptive status from the

home of the potential parents without an

agency hearing. Applying a _ functional

approach, we noted that the defendants’

actions “in no way related to advocacy

before a judicial body," and were not

otherwise integral to the judicial process.

Id. at 1383. Rather, the defendants’

decision to remove the children from the

home was unilateral and occurred before the

judicial process intervened; accordingly,

only qualified immunity was appropriate.

Id.

An important prerequisite of absolute

immunity in this context is that the

defendant social worker “act as an actual

APP. 1

functionary of the court, not only in status

Or denomination but in reality.” Gardener,

874 F.2d at 146. When the activity of the

social worker is not integral to the

judicial process, absolute immunity is not

warranted. Spielman, 873 F.2d at 1383. In

Hodorowski v. Ray, 844 F.2d 1210, 1214 (Sth

Cir. 1988), the court determined that the

seizure of children in the absence of a

court order under Texas law would not be

protected by absolute immunity. The court

reasoned that

seizure without a court order in

the face of an immediate danger

seems to us more akin to the

function of police than prose-

cutors. Policemen, not prose-

cutors, investigate dangerous

Situations and are charged with

the duty, if necessary, to inter-

vene to prevent injury. But

policemen, like most other execu-

tive officials, are ordinarily

not protected by absolute

immunity . . . unless they are engaged

in a function integral to the judicial

APP. 1

process, such as testifying as

witnesses ...

Id. (citations omitted). Likewise, in

Austin v. Borel, 830 F.2d 1356, 1361-63 (5th

Cir. 1987), the court determined that the

filing of an allegedly false verified

complaint, which under Louisiana law

initiated temporary custody of a child, but

did not initiate the judicial process

concerning need of care pro-ceedings, was

not entitled to absolute immunity. The

court analogized the filing of a verified

complaint by a child abuse worker to the

seeking of an arrest warrant by a police

officer; because absolute immunity would be

inappropriate in the latter case, so too

would it be inappropriate in the former.

Austin, 830 F.2d at 1362.

APP. 1 =

We next consider the authority of the

DHS in this matter. DHS has the authority

to investigate complaints concerning whether

a child care facility is required to be

licensed under the Child Care Licensing Act,

Okla. Stat. Ann. tit. 10, §§ 401-410 (West

1987). Id. § 401(b) (necessity of license),

§402(2) (child care facility defined),

§403(b) (Act applies to private child care

facilities), § 405(b) (prior to issuance of

license, DHS “shall investigate the

activities and standards of care of the

applicant"); DHS Division of Child Welfare

Services-Policy and Procedure-Licensing §§

661 & 689 (3/15/79) (investigation of

complaints), reproduced in rec. vol. III,

doc. 114, ex. M. DHS is granted authority

to investigate the conditions of a licensed

child care facility and to require

information concerning the children being

APP. 1

cared for by the facility. Okla. Stat. Ann.

tit. 10, § 406 (West 1987). DHS also has

authority to investigate complaints of child

abuse and neglect.*” Okla. Stat. Ann.

tit. 21, §§ 845, 846 (West Supp. 1990); DHS

Child Welfare Services-Child Abuse /

Preventive Services Procedures § 621 (10/1/

84), reproduced in, rec. vol. III, doc. 114,

QR. ke

*°As we understand this case, DHS seems

to have been investigating allegations that

the children in the Snells' care were

“deprived children" within the meaning of

Okla. Stat. Ann. tit. 10, §1101(4) (West

Supp. 1990). <A deprived child includes "a

child who does not have the proper parental

Care or guardianship or whose home is an

unfit place for the child by reason of

neglect, cruelty or depravity on the part of

his parents, legal guardian, or other person

in whose care the child may be... ." Id.;

see also DHS Child Welfare Services-Child

Abuse/ Prevention Services Procedures

§623.5(B)(2) (10/1/84), reproduced in rec.

vol. III, doc. 114, ex. I. A dependent and

neglected child is a deprived child. Okla.

Stat. Ann. tit. 10, §1101(4) (West i990).

APP. 1

Under Oklahoma law, a preliminary

inguiry shall precede the filing of a

petition to adjudicate the status of an

allegedly deprived child. Okla. Stat. Ann.

tit. 10, §§ 1101(10), 11O03(A) & (C) (1987 &

1990 Supp.). The purpose of the preliminary

inquiry is to determine whether court action

is necessary and to allow for informal

adjustment. See Id. & Id. §§ 1101(1) &

1103(B). In Oklahoma County, where the

events in this case took place, this

function is accomplished by the Juvenile

Bureau. See Okla. Stat. Ann. tit. 10, §§

602(1), 1201(A), 1204(A) (West 1987).

Thereafter, "“[{a]) petition in a juvenile

procpeding may be filed by the district

attorney or the person who is authorized to

make a preliminary inguiry to see if further

action is necessary." Id. § 1103(B). “The

petition is the first formal legal document

APP. 1

filed with the court and initiates Juvenile

Court proceedings." DHS Child Welfare

Services-Child Abuse/Preventive Services

Procedures § 624.11 (10/1/84), reproduced in

rec. vol. III, doc. 114, ex. I. When the

petition is filed, the district court

obtains jurisdiction over the child alleged

to be deprived. Okla. Stat. Ann. tit. 10,

§ 1102(A) (West Supp. 1990).

Frequently, however, a child may be

taken into custody before a preliminary

inquiry is completed or a petition is filed.

When a child is taken into custody before

the filing of a petition, a petition

generally must be filed and a summons issued

within five judicial days. Id. § 1104.1(A)

(West 1987); und Cniia weitare services

in1ia apuse/rreventive Services Procedures

§ 624.11 (10/ 1/84), reproduced in rec. vol.

III, doc. 114, ex. I. If a child is taken

“er

APP. 1

into custody as a deprived child, see Okla.

Stat. Ann. tit. 10, § 1104(d) (West Supp.

1990), the “child shall be taken immediately

before a judge of the district court for the

purpose of obtaining an order for protective

custody." Id. § 1107(B). The parents or

guardians are entitled to a hearing within

forty-eight hours. Id. §1104.1(C) (West

1987); DHS Child Welfare Services-child

Abuse/Preventive Services Procedures §

623.7(c) (10/1/84), reproduced in rec. vol.

III, doc. 114, ex. I; see also Okla. Stat.

Ann. tit. 10, §1107(C) (West 1990)

(detention hearing must be held within one

or two judicial days, otherwise child shall

not be detained). ‘

In this case, an application was filed

and an order for conditional protective

custody issued before a preliminary inguiry

Or petition. Judge Brown indicated that in

APP. 1

practice an order for protective custody

frequently precedes a petition. Rec. vol.

I, doc. 131, ex. 17 at 75. Other courts

have determined that social workers filing

pleadings for temporary custody in advance

of a formal petition are entitled to

absolute immunity. Vosburg, 884 F.2d at

134; Salyer, 874 F.2d at 378. We think that

this case requires a different outcome for

two reasons. First, the application which

resulted in the pick-up order was pre-

adjudicatory and sought information which

would be developed in other pre-adjudicatory

procedures such as court intake or a

preliminary inquiry that occur prior to the

filing of a petition. See Okla. Stat. Ann.

tit. 10, §§ 1101(8) & (10), 1L1O2Z{A) (West

Supp. 1990) ("Upon the filing of a petition,

the district court shall have juris-diction

of any child who is alleged to be. .

APP. 1

deprived . .. ."). In this respect, the

Statutory scheme in Oklahoma, insofar as DHS

is concerned, is similar to the Louisiana

scheme construed by the Fifth Circuit in

Austin; we think that the Austin approach is

equally applicable to this case. See 830

F.2d at 1361-63. A social worker seeking a

pre-petition order for protective custody

functions like a police officer seeking an

arrest warrant; a functional approach to

immunity requires that those performing like

functions receive like immunity. Austin,

830 F.2d at 1362.

The second reason why absolute immunity

is not appropriate is that DHS policy

indicates that DHS child welfare workers

normally are to report findings of neglect

Or abuse, even those which might indicate a

need for immediate intervention, to other

authorities for further investigation or

APP. 1

advocacy in the form of initiation of court

procecdings.** All of the challenged

*“See DHS Child Welfare Services-Child

Abuse/Preventive Services Procedures §622.2

(district attorney may make determination as

to need for further investigation or

prosecution based on findings of DHS),

5622. 31 (contact local law enforcement

authorities if immediate attention

required), §622.4 (same), §622.4(B) (if

cannot complete report due to lack of

cooperation, contact law enforcement or

complete report with information obtained),

§622.41(B) (DHS investigation is an

“official inguiry,” not a police

investigation); §622.43 (report of

investigation sent to district attorney with

recommendation); §623.3 (emergency placement

and shelter care requests presented through

district attorney or Juvenile Bureau;

when these sources cannot be reached may

worker contact district judge directly;

peace officer or court employee is empowered

to take child into immediate protective

custody, if necessary), §623.4 (district

attorney has discretion whether to file

petition or pursue criminal charges),

§623.7(D) (same), §624/11 (generally

district attorney will decide whether there

is sufficient evidence to proceed with a

petition; district attorney or Juvenile

Bureau prepares all pleadings and DHS

workers do not sign petitions except in

unusual or emergency situations with prior

approval) (10/1/84), reproduced in rec. vol.

III, doc. 114, ex. I.

APP. 1

actions of defendants Sweptson, Sicck and

Levingston pertain to a DHS investigation of

the Snelis, an attempt to create a factual

basis to justify intervention and confirm

@liegations predominantly, if not wholly,

the product of speculation and conjecture.

The defendants unsuccessfully sought police

participation in their investigation before

Judge Brown issued his order. Moreover,

defendants Sieck and Levingston assisted

with the investigation made possible by the

court's order--a function associated with

police work, not advocacy.

We agree with the district court that

child welfare workers investigating claims

of child abuse are analogous to law

enforcement officers who are entitled only

to qualificd immunity. Snell, 698 F. Supp.

at 1557. We also reject the defendants’

argument that public policy § requires

APP. 1

absolute immunity because claims of child

abuse are involved. See Robinson v. Via,

821 F.2d 913, 919-20 (2d Cir. 1987)

(rejecting absolute immunity for child abuse

investigations on policy grounds’ and

accepting “strong” argument for qualified

immunity). We do so for two reasons.

First, immunity is strictly construed; we do

not function as a legislature in enacting

immunity grounds. See Harlow, 457 U.S. at

811; Imbler, 424 U.S. at 421. Second, as

stated by the district court:

While the tasks of social workers

who investigate child protection

matters are clearly matters of

compelling interest and

importance to the public, how can

it be said that when these

investigators allegedly violate a

citizen's constitutional rights

they are entitled to absolute

immunity, when highly trained

FBI, DEA and Treasury agents

facing identical allegations are

entitled to only qualified

immunity?

APP. 1

Snell, 698 F. Supp. at 1557. To this we

might add that police officers cngaged in

the same conduct alicged in this case would

not be entitled to absolute immunity.

Austin, 830 F.2d at 1362. Thus, we overrule

Oklahoma federal district court decisions

which have determined that absolute immunity

is appropriate for DHS social workers, to

the extent that these decisions are

inconsistent with the rule we announce

today. See, e.g., Snook v. Lunsford, No.

87-C-550-B unpub. order (N.D. Okla. Mar. 24,

1988) [1988 WL 142120); Guest v. Moore, 706

F. Supp. 786, 787-88 (W.D. Okla. 1987).

The actions of defendants Sweptson,

Sieck and Levingston cannot be said to be

integral to the judicial process, rather the

DHS activity was more akin to police work.

The licensing issue had been resolved in the

Snell's favor by DHS licensing division

APP. 1

personnel in April 1987; however, DHS

elected to reexamine the factual basis of

the issue shortly thereafter and needed morc

information. The three subsegucnt refcrrals

concerning neglect and abuse in the Snell

home were investigated by DHS, and the DHS

brought the results of that investigation to

the attention of the district attorney's

office, as normal procedure envisions. When

the district attorney refused to become

involved, the DHS defendants pursued the

investigation further by contacting the

police, who would not assist the

investigation without a court order, and the

district attorney, who again would not

pursue the investigation because of a lack

of evidence. Viewed in the light most

favorable to the plaintiffs, the summary

judgment evidence indicates that these

defendants assisted or acquiesced in the use

APP. 1

of information known to be false concerning

the Snells, i.e., involvement in child

prostitution and pornography, in order to

further the licensing investigation’’ and

retaliate against the Snells. The use of

that false information, as conveyed to Judge

Brown, was undoubtedly responsible for the

furtherance of the investigation by use of

a court order to gain entry into the Snell

home and custody of the seven children for

which the Snells could. not produce court

custody documents. Accordingly, defendants

*’It seems strange indeed for the DHS

to have obtained an order authorizing

detention of only those children for which

the Snells lacked court custody documents,

given purported allegations of child

prostitution and pornography. If any

foundation existed for such allegations, one

would expect all of the children at the

Snells to be in jeopardy. The order that

was issued was consistent with the licensing

investigation.

APP. 1

Sweptson, Sieck and Levingston are not

entitled to absolute immunity.*”"

*"We recognize that this circuit has

granted absolute immunity to probation

officers who allegedly made false statements

in a pretrial bond report and presentence

report. Tripati v. United States INS, 784

F.2d 345, a7 = 48 (10th Cir. 1986) (per

curiam), cert. denied, 484 U.S. 1028 (1988).

And some courts have reached results in

which both social workers involved in child

protection and probation officers were

accorded the same type of immunity, whether

it be absolute or qualified. Hodorowski,

844 F.2d at 1214 (qualified immunity);

Austin, wi F.2d at 1361 (qualified

immunity) ; rs, 812 F.2d at 1159

(absolute immun ete y); Myers v. Morris, 8310

F.2d 1437, 1466- 67. (Bt Cir.), cert. denied,

484 U.S. 828 (1987) (absolute immunity;

private social worker). Our decision in

Tripati is in no way inconsistent with the

aart reached here.

Absolute immunity for the probation

officer in Tripati extended to the

preparation of = pretrial bond or

presentence report, not to every activity

that a probation officer may undertake. 784

F.2d at 348. Tripati is in keeping with a

functional approach to absolute immunity

because the court requires pretrial bond and

presentence reports in handing the criminal

docket. Id. These functions of the

probation officer are integrally related to

the judicial function.

APP. 1

The cases relicd upon in Tripati do not

purport to establish a broader rule or

suggest a different rule in this case.

Hughes v. Chesser, 731 F.2d 1489, 1490 (llth

Cir. 1984) (absolute immunity for

preparation and submission of presentence

report); Spaulding v. Nielsen, 599 F.2d 728,

729 & 729 n.2 (Sth Cir. 1979) (same); Burkes

v. Callion, 433 F.2d 318, 319 (9th Cir.

1970) cert. denied, 403 U.S. 908 (1971)

(absolute immunity for probation officer

preparing and submitting a probation report

in a criminal case); see also Demoran v.

Witt, 781 F.2d 155, 158 (9th Cir.

(absolute immunity for preparation of

presentence report). In contrast to the

preparation of pretrial bond or presentence

reports, other decisions involving the

revocation of probation or parole by a

probation or parole officer warrant only

qualified, not absolute, immunity because

such decisions are farther removed from the

judicial process and are not initiated by

courts. Griffin v. Leonard, 821 F.2d 1124,

1125 (Sth Cir. 1987); Nelson v. Balzaic, 802

F.2d 1077, 1078-79 (9th Cir. 1986); Ray v.

Pickett, 734 F.2d 370, 374 (9th Cir. 1984);

Galvan v. Garmon, 710 F.2d 214, 215 (5th

Cir. 1983), cert. denied, 466 U.S. 949

(1984). It is these latter cases that the

courts in Hodorowski and Austin relied upon

in determining that social workers involved

in child protection were not entitled to

absolute immunity. We also find these

latter cases analogous to the situation

presented in this case.

APP. 1

The issue of absolute immunity is more

difficult with respect to defendant Padliey,

the assistant general counsel of DHS who

compiled the information and presented the

application to Judge Brown. We note that

the Second Circuit granted absolute immunity

to a child protective services department

attorney who initiated and prosecuted child

protective orders. Walden v. Wishengrad,

745 F.2d 149, 152 (2d Cir. 1984). In that

case, the attorney had taken steps to compel

a witness to attend a hearing to terminate

parental rights. Id. at 150.

In this case, the federal district

court denied defendant Padley absolute

immunity on two grounds: 1) she was acting

in an investigative capacity, and 2) even if

she was acting in a quasi-prosecutorial

capacity, she ventured outside her duties to

APP. 1

perform a quasi-prosccutorial task. Snell,

698 F. Supp. at 1558. The district court

relicd heavily upon defendant Padicy's

admissions. Padley stated that "[t]Jhe whole

purpose of the application was to obtain the

assistance of the [state] court to complete

an investigation as to allegations." Rec.

vol. III, doc. 114, ex. C at 172. Padley

also was aware that normally such

applications would be filed by the district

attorney or attorney general's office;

indeed she had never drafted an application

of this type before. Id. at 169-71.

We would have no problem affirming the

district court's decision concerning the

investigative nature of some of defendant

Padley's activities had the plaintiffs come

forward with evidence indicating that

defendant Padley only engaged in the

“preliminary gathering of evidence that may

APP. 1

ripen into a potential prosecution.” Gobel

v. Maricopa County, 867 F.2d 1201, 1204 (9th

Cir. 1989). For we have held that a

prosecutor who interrogates a suspect in the

first instance is fulfilling an

investigative, rather than a prosecutorial,

function. Rex v. Teeples, 753 F.2d 840, 844

(10th Cir.), cert. denied, 474 U.S. 967

(1985). Moreover, the Second Circuit in

Robinson, 821 F.2d at 918-19, has held that

an attorney who assists a police officer in

investigating a child abuse complaint is

merely part of the “preliminary

investigative process," and is not entitled

to absolute judicial immunity.

In this case, the rule concerning

absolute immunity for prosecutorial

functions and not for investigative or

administrative functions is easier to state

than apply. Although absolute immunity

APP. 1

applies to initiating and presenting a

prosecution, the Supreme Court has

recognized that some duties prior to the

initiation of a prosecution are also

protected. Imbler, 424 U.S. at 431 n.33.

Preparing to initiate a prosecution may

necessitate obtaining, reviewing and

evaluating evidence; absolute immunity may

attach when these functions are necessary so

that a prosecutor may fulfill his function

as an officer of the court. See Id.; Grant

v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir.

1989) (decision of prosecutor to investigate

a criminal charge entitled to absolute

immunity); Gobel, 867 F.2d at 1204 (actions

undertaken as part of the preparation of the

prosecutor's case are absolutely immune,

even if such actions could be characterized

as “investigative” or “administrative"™);

Auricomma v. Montgomery, 860 F.2d 273, 278

APP. 1

(7th Cif. 1988) (extra-judicial

investigation by government attorneys not

entitled to absolute immunity); Marx v.

Gumbinner, 855 F.2d 783, 792 (llth Cir.

1988) (prosecutor entitled to absolute

immunity for investigation necessary to

prepare case such as interviewing witnesses

before presenting them to a grand jury or

interviewing the victim of a crime).

We have held that a critical factor for

absolute prosecutorial immunity “involves a

prosecutor's acts as an advocate before a

neutral magistrate." Lerwill v. Joslin, 712

F.2d 435, 437 (10th Cir. 1983). Thus, a

prosecutor who participates in an illegal

search, issues a libelous press release,

assists with an unlawful sale of seized

property or orders a warrantless arrest

ordinarily will not be entitled to absolute

immunity. Id. at 437. On the other hand,

APP. 1

a prosecutor who performs functions within

the continuum of initiating and presenting

a criminal case, such as filing charges,

seeking an arrest warrant or advocating

conditions of release, ordinarily will be

entitled to absolute immunity. Id. at 439.

“Although identifying those acts entitled to

absolute immunity is not always easy, the

determinative factor is ‘advocacy’ because

that is the prosecutor's main function and

the one most akin to his quasi-judicial

role." Rex, 753 F.2d 843.

Here, some evidence indicates that

Judge Brown told defendant Padley to prepare

an application based, at least in part, upon

earlier ex parte representations concerning

the Snells that were made to the judge by

detective Einhorn. Rec. vol. I, doc. 96,

ex. 2 at 31-32 (Brown depo.); Id. vol. III,

doc. 114, ex. C at 169 (Padley depo.). We

have found no summary judgment evidence

indicating that Padicy directed Einhorn to

Judge brown. Rather, it appears that

Finhorn contacted the judge by telephone

before defendant Padicy was sought out by

the judge. Rec. vol. I, doc. 96, ex. 2 at

30-31. The judge now says that he was

willing to issue a4 detention order based on

his conversation by Einhorn, but he did not

have it prepared when Einhorn appeared in

person an nour later. Id. at 31. When

Einhorn appeared and the order was not

prepared, Judge Brown requested that Padley

coordinate the supporting information.

Thus, Padley appeared before a neutral

judge at the judge's express suggestion; she

was not acting unilaterally.*° She was

°Por two reasons, defendant Padliey is

not entitled to absolute quasi-judicial

immunity on a theory that she merely acted

at the direction of judge Brown in preparing

APP. 1

directed to coordinate existing information,

not pursue further investigation. Indeed,

Judge Brown testified on deposition that he

would have issued the order based upon the

Oral representations of Detective Einhorn.

Rec. vol. I, doc. 96, ex. 2 at 62-63.

However, that is not what happened. In the

application she prepared, Padley matched the

existing allegations with citations to the

statutes concerning child abuse and neglect,

the application. First, there is no

evidence that Judge Brown ordered Padley to

file the application containing the false

allegations. See Turney v. O'Toole,898 F.2d

1470, 1472-73 (10th Cir. 1990) (absolute

quasi-judicial immunity applied to execution

of judicial order of confinement); Valdez v.

City & County of Denver, 878 F.2d 1285, 1288

(10th Cir. 1989) (officers arresting and

confining plaintiff on judge's contempt

order entitled to absolute quasi-judicial

immunity). Second, defendant Padley's

conduct involved more than a ministerial act

pursuant to a judge's directive, see Valdez,

878 F.2d at 1289, rather her decision to

prepare and file the application was a

product of legal judgment.

APP. 1

deprived children, and licensing, and then

she requested relief: that the court

“provide whatever assistance . . . the Court

deems appropriate in order to _ protect

children and assist DHS in completing child

abuse and licensing investigations of the

Snell{] home." Id. ex. 4 at 2. Under

current Rules of Professional Conduct,

Padley might have an obligation to make a