# Appendix — Rupe v. Blake

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1208

## Text

App. 1

APPENDIX A

VERDICT

(Filed April 11, 1981)
We the Jury:

Find for the plaintiff, Thomas N. Rupe, and against
the defendants, Ruth Blake and Louis Dekmar.

We find that the plaintiff suffered total actual dam-
ages of $60,000.00;

Of that amourt we assess:

$40,000.00 against Ruth Blake,
$20,000.00 against Louis Dekmar,

If you decide against awarding punitive damages,
place an X in the box below.

We do not assess punitive damages. Oo

If you decide to award punitive damages, complete
1 or 2 below, or both.

1. We assess punitive damages against the defendant
Ruth Blake in the amount of $105,000.00.

2. We assess punitive damages against the defendant
Louis Dekmar in the amount of $35,000.00.

/8/ Donald Hughes
Foreman or Forewoman

App. 2

APPENDIX B

IN THE DISTRICT COURT
EIGHTH JUDICIAL DISTRICT

Civil Action No. 8360

State of Woyming ) ss
County of Converse )

THOMAS N. RUPE,

Plaintiff,
vs.
RUTH BLAKE and LOUIS DEKMAR,
Defendants,

JUDGMENT ON JURY VERDICT
(Filed April 27, 1981)

THE ABOVE ENTITLED MATTER having come
on for trial before the Court and a jury of twelve, and
the issues having been tried and the jury having returned
its verdict finding for the Plaintiff and against the De-
fendants ;

NOW, THEREFORE, IT IS ORDERED AND AD-
JUDGED that the Plaintiff, Thomas N. Rupe, recover of
and from the Defendant, Ruth Blake, the sum of Forty
Thousand Dollars ($40,000.00) actual damages, plus One
Hundred Five Thousand Dollars ($105,000.00) punitive
damages, and further, that the Plaintiff, Thomas N. Rupe,
recover of and from the Defendant, Louis Dekmar, the
sum of Twenty Thousand Dollars ($20,000.00) actual dam-
ages, and Thirty-five Thousand Dollars ($35,000.00) puni-
tive damages; such sums being the amount of the verdict

App. 3

awarded by the jury against each Defendant on the tort
claims of the Plaintiff.

IT IS FURTHER ORDERED AND ADJUDGED that
the Plaintiff recover from the Defendant, jointly and sev-
erally, his costs.

Dated this 25th day of April, 1981.

/s/ Paul T. Liamos, Jr.
District Judge

App. 4

APPENDIX C

IN THE SUPREME COURT, STATE OF WYOMING
APRIL TERM, A. D. 1982

September 14, 1982
No. 5576

RUTH BLAKE and LOUIS DEKMAR,
Appellants (Defendants),

vs.

THOMAS N. RUPE,
Appellee (Plaintiff ).

No. 5577

THOMAS N. RUPE,

Appellant (Plaintiff ),
vs.

RUTH BLAKE and LOUIS DEKMAR,
Appellees (Defendants).

Appeal from the District Court of Converse County, the
Honorable Paul T. Liamos, Jr., Judge.

Glenn Parker and Harold IF. Buck, Hirst & Applegate,
Cheyenne, signed the brief on behalf of appellant Blake ;
Mr. Parker appeared in oral argument. James EK. Fitz-
gerald, Cheyenne, and F.. Michael Ludwig, Wood, Ris &
Hames, P. C., Denver, Colorado, signed the brief on behalf
of appellant Dekmar; Mr. Hames appeared in oral argu-
ment.

Raymond B. Hunkins and Eric M. Alden, Jones, Jones,
Vines & Hunkins, Wheatland, signed the brief and ap-
peared in oral argument on behalf of appellee Rupe.

App. 5

David A. Kern, Cheyenne, filed Amicus Curiae brief on
behalf of the Wyoming County and Prosecuting Attorneys
Association in support of the position of appellants Blake
and Dekmar.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY
and BROWN, JJ.

RAPER, J., delivered the opinion of the court. ROONEY,
J., filed a coneurring opinion. THOMAS, J., filed an opin-
ion concurring in part and dissenting in part. ROSE,
C. J., filed a dissenting opinion.

NOTICE: This opinion is subject to formal revision
before publication in Pacific Reporter Second. Readers
are requested to notify the Clerk of the Supreme Court,
Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors, in order that
corrections may be made before final publication in the
permanent volume.

RAPER, Justice.

The appellee, Thomas N. Rupe, brought a tort action
for damages against appellant Ruth Blake, County and
Prosecuting Attorney for Converse County, alleging tor-
tious conduct in connection with the investigation and
prosecution of a criminal perjury charge brought against
Rupe. In the same action, appellant Louis Dekmar, an
investigator for the office of County and Prosecuting At-
torney for Converse County, was joined and damages
sought against him for alleged tortious conduct in con-
nection with the investigation and filing of the same crim-
inal charge of perjury against Rupe. Following trial by
jury, a verdict was returned awarding Rupe $40,000 ac-
tual and $105,000 punitive damages against Blake and
$20,000 actual and $35,000 punitive damages against Dek-
mar. Judgment was entered accordingly.

App. 6

While many errors by the trial judge are asserted
on appeal, disposition can be made on the issue of the
scope of immunity, possessed by prosecutor Blake and
her investigator Dekmar. The court, at its own sugges-
tion, raised the issue of the timeliness of the notice of
appeal which we will discuss (Part VI) in light of the
dissents filed herein.

We find the notice of appeal to be timely and will
reverse and remand with directions to vacate the judg-
ment in favor of appellee Rupe and enter judgment for
appellants Blake and Dekmar.

I

The facts giving rise to initiation of the tort action
will be briefly narrated. Rupe was called for Converse
County District Court jury duty in 1979. In two
criminal murder cases he, along with other jurors, was
interrogated relative to general qualifications to serve.
“A person is disqualified to act as juror if he has been
convicted of any felony.” Section 1-11-102, W.iS. 1977.
Upon being questioned as to whether any had ever been
convicted of a felony, none responded, including Rupe.'

‘In one case at the start of jury selection the general quali-
fications of the jurors were ascertained. Amongst other statutes
setting out the qualifications, RAE Mt kc was read to the panel.
The district judge requested that anyone convicted of a felony
come to the bench and let him know. No member of the panel
apparently did so. Rupe was asked, “[d]o you know Mr. Roop
[sic] of any reason why you could not serve as a juror?” He
replied, “[n]othing other than | [was] asked to be relieved by
the city engineer,” by whom he was employed.

In the other case, all jurors were advised that a felony con-
viction would disqualify them for service as a juror and then
asked, “[i]s there anyone here that would fall in that category?”
There was a negative response.

App. 7

Rupe sat as a juror in both cases. In one, a verdict of
acquittal was returned. In the other, a mistrial was de-
clared.

Later, Blake learned through a volunteer informant
that Rupe had previously been convicted of a felony—
issuing a fraudulent check. She and Dekmar checked the
Natrona County District Court records, where Rupe’s
trial had taken place in 1950, and at the State Peniten-
tiary to which he had been sentenced and incarcerated.
The evidence is in dispute as to whether Blake or Dek-
mar was informed by penitentiary personnel that Rupe
had been pardoned. During the course of the investiga-
tion no records at the State Capitol in Cheyenne were
checked. The Secretary of State could have furnished a
copy of Rupe’s discharge paper. Blake, upon the basis
of the investigation made, requested that Dekmar file a
perjury complaint against Rupe, which he did on October
11, 1979.

At his justice of the peace appearance for a prelimi-
nary hearing, Rupe presented evidence that when re-
leased from the penitentiary he had been issued a form
of discharge execnted by the then Governor of Wyoming
which concluded with:

“NOW, THEREFORE, By virtue of the authority
vested in me as Governor of the State of Wyoming,
I do hereby direct that the said Thomas N. Rupe,
No. 7061 be discharged from the Penitentiary of the
State of Wyoming, on the Twentieth day of Decem-
ber, 1951 and I do hereby fully restore the said
Thomas N. Rupe, No. 7061 to citizenship, which res-
toration of citizenship shall become effective on said
date.”

App. 8

The form of discharge was, at the time of Rupe’s dis-
charge from the penitentiary, pursuant to then § 19-1004,
W.S. 1945 (afterwards §7-13-107, W.S. 1977)?:

“The Governor of the State of Wyoming shall, upon
receiving a statement of good conduct of a convict,
whose term is about to expire, from the Warden of
the State Penitentiary, immediately issue a certifi-
cate for the discharge of such convict; such certifi-
eate shall in all cases restore the said convict his
rights the same as though full pardon had been
granted. The said certificate to be delivered to the
convict by the Warden of the State Penitentiary at
the expiration of his term.”

Another relevant statute before the justice of the peace
was §6-1-104, W.S. 1977:

“A person sentenced to the penitentiary for a felony,
when sentence has not been reversed or annulled, is
incompetent to be an elector or juror, or to hold any
office of honor, trust or profit within this state, un-
less he shall have received a pardon; but no pardon
shall release a convict from the costs of his convie-
tion, unless so stated therein,’

*Effective May 20, 1981, § 7-13-107, W. S. 1977, was changed
to provide:

“(a) Upon receipt of a written application, the governor
may issue to a person convicted of a felony under the laws
of a state or the United States a certificate which restores
the rights lost pursuant to W. S. 6-1-104 when:

“(i) His term of sentence expires; or
“(ii) He satisfactorily completes a probation period.”

‘a 3Section 6-1-104, W. S. 1977, was changed in 1981 to pro-
vide:

“(a)_ A person convicted of a felony is incompetent to be
an elector or juror, or to hold any office of honor, trust or
profit within this state, unless:

(Continued on next page)

App. 9

The justice of the peace dismissed the complaint.

Other facts will be set out as appropriate.

II

A county and prosecuting attorney in the State of
Wyoming “act[s] as prosecutor for the State of Wyoming
in all felonies and misdemeanors arising in his [her]
county” and prosecutes such cases in the courts of such
county, § 18-3-202, W.S. 1977, in effect at the time the
prosecution involved in this case arose. “ * * * All prose-
cutions shall be carried on in the name and by the au-
thority of the State of Wyoming, and ‘conclude against
the peace and dignity of the State of Wyoming.’” See-
tion 15, Article V, Wyoming Constitution. Blake, as the
duly elected prosecutor, was therefore a proper person
charged with the duty of initiating criminal prosecutions
on behalf of the state of Wyoming. She was therefore
acting within the scope of her duties when she investi-
gated and directed the filing of a complaint against Rupe.

Ill

We are satisfied that the touchstone authority for
the basis of our disposition of this appeal rests in Imbler
v. Pachtman, 424 U.S. 409, 96 8. Ct. 984, 47 L. Ed. 2d 128
(1976). It was there held that a state prosecuting attor-
ney acting within the scope of his duties in initiating and
pursuing a criminal prosecution and in presenting the

(Continued from previous page)
“(i) His conviction is reversed or annulled;
“(ii) He receives a pardon; or
mf His rights are restored pursuant to W, S. 7-13-

App. 10

State’s case is absolutely immune from a civil suit for
damages under 42 U.S, C, §1983* for alleged deprivations
of constitutional rights. The sweep of the opinion spe-
cifically takes in and approves the common-law rule of
absolute immunity for a prosecutor acting within the
scope of his duty.’ In the use of Imbler, we hasten to
mention at this point, that we recognize that the United
States Supreme Court reserved until another time a final
settlement of the extent to which absolute immunity at-
taches to those aspects of the prosecutor’s responsibility
which assign him/her the rule of administrator and in-
vestigator. We will further on in this opinion deal with
a prosecutor's immunity while performing his/her admin-
istrative and investigative functions, since appellee frames
his causes of action around that phase of Blake’s prose-
eution of Rupe, Though the tenor of Rupe’s tort action
in all aspects was that Blake’s prosecution was based in
anger with spiteful motives because one jury with which

442 U.S.C. § 1983:

“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be sub-
jected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitu-
tion and laws, shall be liable to the party injured in an ac-
tion at law, suit in equity, or other proper proceeding for
redress, For the purposes of this section, any Act of Con-
ress applicable exclusively to the District of Columbia
p “ a considered to be a statute of the District of
Columbia,”

‘See Yaselli v. Goff, 275 U.S. 503, 48 S, Ct. 155, 72 L. Ed.
395 (1927) affirming 12 F, 2d 396 (1926), in which the court of
appeals discusses at length the common-law immunity of
judges pus jurors, petit jurors, advocates, and witnesses ap-
proved n Butz v, Economou, infra,

App. 11

Rupe sat acquitted the defendant, Rupe does not allege
malicious prosecution as such,

In the meantime, because of the inseparability of
some investigations by the prosecutor and initiation of
a prosecution, which we discern to be the situation be-
fore us, it is important to point out the reasons for ab-
solute immunity,

“The common-law immunity of a prosecutor is based
upon the same considerations that underlie the com-
mon-law immunities of judges and grand jurors act-
ing within the scope of their duties, These include
concern that harassment by unfounded litigation
would cause a deflection of the prosecutor's energies
from his public duties, and the possibility that he
would shade his decisions instead of exercising the
independence of judgment required by his public
pas One court expressed both considerations as
ollows:

“*The office of public proseeutor is one which
must be administered with courage and independ-
ence, Yet how can this be if the prosecutor is
made subject to suit by those whom he accuses
and fails to convict? ‘To allow this would open
the way for unlimited harassment and embar-
rassment of the most conscientious officials by
those who would profit thereby. There would
be involved in every case the possible conse-
quences of a failure to obtain a conviction, There
would always be a question of possible civil ac-
tion in case the prosecutor saw fit to move dis-
missal of the case, * * * The apprehension of
such consequences would tend toward great un-
easiness and toward weakening the fearless and
impartial policy which should characterize the
administration of this office. The work of the

rosecutor would thus be impeded and we would

ve moved away from the desired objective of

App. 12

atrieter and fairer law enforcement,’ Pearson
v. Reed, 6 Cal, App, 2d 277, 287, 44 P, 2d 592,
597 (1935).” (Footnote omitted.) Imbler v, Pacht-
man, supra, 424 U.S, at 422-424, 96 8, Ct. at
991-992, 47 L. Hd. 2d at 189-140,
As further pointed out in Imbler, without absolute im-
munity the performance of the prosecutor's duties would
be undermined by the constant threat of a suit for dam-
ages, If a prosecutor had to make every move in the
performance of his/her work on the basis of a potential
personal liability, the publie trust in the prosecutor's of-
fice would suffer in that his/her judgment would be col-
ored by such constraints, In the light of the nature of
what is seen as a litigant’s society, such suits could be
expected with some frequency because of resentment by
criminal defendants against prosecutors, Such preoceu-
pation with defending such actions would divert the at-
tention and energy of the prosecutor away from the ur-
gent duty of enforcing the criminal law. Defending every
decision made and action taken could impose intolerable
burdens,

As conceded in Imbler, absolute immunity leaves the
genuinely wronged criminal defendant without civil re-
dress against a malicious or dishonest prosecutor, ‘That
would certainly include the lesser evil of the negligent
prosecutor, It is not the office of this court in this case
to either castigate or defend the Converse County prose-
cutor for the action taken upon the basis of the investi-
gation made. Her unhampered duty to exercise judgment
in the prosecutive decision must not be blurred by con-
cerns and reluctance which would appear in the shadow
of the fear of retaliation. To take away or qualify the
immunity would disserve the broader public interest and

App. 13

prevent vigorous and fearless performance of duty as a
public prosecutor, so essential to the success of the crim-
inal justice system.

The rule of absolute immunity for prosecutors has,
since Imbler been reaffirmed in Butz v. Eeconomou, 438
U.S. 478, 510, 98 S. Ct. 2894, 2912-2913, 57 L. Ed. 2d 895,
918-919 (1978). The court, there quoting Imbler, reiter-
ated that ‘‘‘[t]he common-law immunity of a proseeutor
is based upon the same considerations that underlie the
common-law immunities of judges and grand jurors act-
ing within the scope of their duties.’ 424 U.S., at 422-423,
47 L. Ed. 2d 128, 96 8. Ct. 984.” Further, the prosecutor
is entitled for stated and practical reasons to absolute
immunity. His activities are “activities [which] were in-
timately associated with the judicial phase of the crim-
inal process, and thus were functions to which the rea-
sons for absolute immunity apply with full force.” Imbler,
supra, 424 U.S. at 430, quoted in Butz, supra, 438 U.S.
at 511.

Again, in Supreme Court of Virginia v. Consumers
Union of the United States, 446 U.S. 719, 736, 100 S. Ct.
1967, 1977, 64 L. Ed. 2d 641, 656 (1980), the court in re-
viewing all the situations in which immunity from dam-
age actions existed, declared again that prosecutors enjoy
absolute immunity from damage liability, citing Imbler,
supra. Most recently, we find the rule again upheld in
Harlow v. Fitzgerald, — U.S, —, 102 8, Ct. 2727, — L. Ed.
2d — (decided June 24, 1982), and Nixon v. Fitzgerald,
— U.S. —, 102 8. Ct. 2690, — L, Ed. 2d — (decided June
24, 1982).

App. 14

Wherever we turn, with rare exceptions’, the abso-
lute-immunity rule for prosecutors prevails. Restatement,
Torts 2d §656 provides:

“A public prosecutor acting in his official capacity

is absolutely privileged to initiate, institute, or con-
tinue criminal proceedings.

Comment b. “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.”

See also, § 895D(1)(2), Restatement, Torts 2d, infra. The
doctrine is solidly established. The ballot and formal re-
moval proceedings are more appropriate ways to enforce
honesty and efficiency of prosecutors. Bauers v. Heisel,
361 F, 2d 581, fn.9 (3rd Cir. 1966), cert. denied 386 U.S.
1021, 87 8. Ct. 1367, 18 L. Ed. 2d 457.

IV

Rupe instituted a civil action against Blake and the
case was eventually tried on his charges of (1) negligence
in hiring and supervising appellant Dekmar, (2) negli-
gence in her investigation of Rupe, (3) intentional inflic-
tion of emotional distress, and (4) violating Rupe’s right
to privacy and the quiet enjoyment of life by publicizing
his prosecution, A count for violation of Rupe’s civil

‘Orso v. City and County of Honolulu, 56 Hawaii 241, 534
P. 2d 489 (1975); Cashen v. Spann, 66 N. J. 541, 334 A, 2d 8
(1975), cert. denied 423 U, S, 829, 96 S, Ct. 48, 46 L. Ed. 2d 46.

App. 15

rights under 42 U.S.C. $1983 was dismissed by the trial
judge at the close of plaintiff’s evidence and did not serve
as a basis of the verdict and judgment.

In response to Blake’s claim of absolute immunity for
prosecutors, appellee argues that the activities which gave
rise to his causes of action were within the administra-
tive and investigative functions of the county and prose-
cuting attorney’s office and therefore not within the im-
munities pronounced by Imbler, supra. The plurality
opinion in Imbler closed with:

“ * * * We have no occasion to consider whether
like or similar reasons require immunity for those
aspects of the prosecutor’s responsibility that cast
him in the role of an administrator or investigative
officer rather than that of advocate.’ * * * ”

By footnote 33 to that statement, it was significantly
said:

“We recognize that the duties of the prosecutor in
his role as advocate for the State involve actions pre-
liminary to the initiation of a prosecution and actions
apart from the courtroom, A prosecuting attorney
is required constantly, in the course of his duty as
such, to make decisions on a wide variety of sensi-
tive issues. ‘These include questions of whether to
present a case to a grand jury, whether to file an
information, whether and when to prosecute, whether
to dismiss an indictment against particular defend-
ants, which witnesses to call, and what other evidence
to present. Preparation, both for the initiation of
the criminal process and for a trial, may requir. the
obtaining, reviewing, and evaluating of evidence. At
some point, and with respect to some decisions, the
prosecutor no doubt functions as an administrator
rather than as an officer of the court. Drawing a
proper line between these functions may present dif-

App. 16

fieult questions, but this case does not require us to

anticipate them.” (Emphasis added.)
It is clear that the office of prosecutor does not alone
give absolute immunity to the prosecutor but the fune-
tion performed governs. We conclude, upon the basis
of further research, that in drawing that line, Blake’s
employment and supervision of Dekmar, her conduct pre-
liminary to initiation of a prosecution of Rupe, and her
conduct during the course of prosecution, came within the
perimeter of the quasi-judicial function and absolute
prosecutorial immunity should be afforded her.

Ever since Imbler, many courts have been in the
process of drawing the outer boundary at which the
prosecutor’s quasi-judicial function ends. The actions of
the prosecutor here were not outside the limits those
courts have found to exist. We will review some of those
cases considered pertinent.

An action had been brought by a witness against a
district attorney and his assistant for slander, conspiracy
to slander, abuse of process, invasion of privacy and
intrusion on seclusion in Sampson v. Rumsey, 1 Kan. App.
2d 191, 563 P. 2d 506 (1977). There the court, upon con-
firming that absolute privilege is founded on publie pol-
icy, extended the immunity to those in public service in
the administration of the laws. While doing so, the court
referred to some of the protected functions involved. It
declared that there was a duty upon prosecutors to in-
quire into the facts of alleged violations of the law. Ac-
cordingly the investigation, as an integral part of the
prosecutor’s functions, is “unquestionably” included with-
in the scope of the immunity regardless of the motives
and it may not be the subject of a lawsuit. The court

App. 17

also held that reference during closing argument to a
witness as a “liar” and a “son of a bitch” was likewise
covered by absolute immunity even if actionable. See
also, Knight v. Neodesha, Kansas Police Department, 5
Kan. App. 2d 472, 620 P. 2d 837 (1980), citing Sampson
as precedent.

In another case, a complaint was filed in a Montana
district court charging and seeking damages against the
prosecutor for acting maliciously, negligently, without
probable cause and in violation of civil rights in charging
the plaintiff with various felonies which were later dis-
missed by the prosecutor. Upon motion based upon im-
munity the district judge of the court in which the civil
complaint was filed had refused to dismiss. By a special
proceeding in the supreme court the Montana Attorney
General sought a ruling that the prosecutor was immune.
In State ex rel. Department of Justice v. District Court
of Eighth Judicial Dist., 172 Mont. 88, 560 P. 2d 1328
(1976), it was held that when a prosecutor acts within
the scope of his duties by filing and maintaining crim-
inal charges he is absolutely immune from civil liability,
regardless of negligence or lack of probable cause. The
court adopted the concept that if a prosecutor must weigh
the possibilities of precipitating tort litigation by his in-
stituting criminal prosecutions, his freedom and indepen-
dence would be at an end. The Montana court granted
original relief because of the danger of substantial preju-
dice which might have resulted forcing the prosecutor
to defend a suit where, as a matter of law, liability can-
not be established.

Where all acts of the district attorney are intrinsic
parts of the prosecutorial function, regardless of motive,

App. 18

to adopt a lax rule would be to turn society over to the
lawless by creating a dread on the part of anyone who
would dare to prosecute. Powell v. Seay, Okl., 553 P. 2d
161 (1976). The court in Powell allowed a writ of pro-
hibition to avoid a burdensome and expensive trial.

The district attorney, in Torres v. Glasgow, 80 N. M.
412, 456 P. 2d 886 (1969), during the course of his in-
vestigation caused issuance of a search warrant for the
search of a house and the seizure of a child, in connec-
tion with a criminal charge of false imprisonment against
the child’s father complained of by the child’s mother.
The court held that, even though habeas corpus would
have been the correct remedy because a child not being
property is not the proper subject of a search warrant,
absolute immunity required dismissal of the damage ac-
tion which followed.

In Candelaria v. Robinson, 93 N. M. 786, 606 P. 2d
196 (1980), an assistant district attorney prepared a re-
port regarding the investigation of a murder case by the
plaintiff law officer at the request of the district attor-
ney. The report of investigation stated that the plain-
tiff used highly improper gestapo-type tactics in the
course of the investigation. The court held that absolute
immunity from a civil suit for damages was accorded to
district attorneys for defamation reasonably related to
communication preliminary to, in the institution, or dur-
ing the course of, and as a part of judicial proceedings
in which the attorney participates as counsel. Even
though the prosecution referred to had been closed, one
of the district attorney’s duties was to advise the sheriff
when requested. The request involved one of the sheriff’s
underlings being considered for termination. The material

App. 19

was released st a press conference. The court held it
proper and within absolute immunity to inform the pub-
lic as a matter of public interest of his official acts where
they were within the scope of his duties. See also, Adams
v. Tatsch, 68 N. M. 446, 362 P. 2d 984 (1961), and Matson
v. Margiotti, 371 Pa. 188, 88 A. 2d 892 (1952), cited in
support. As to the investigative phase, the court pointed
out that it was the county attorney’s duty in a prosecu-
tion to investigate and inquire into the facts.

In Foster v. Pearcy, Ind., 387 N. E. 2d 446 (1979),
cert. denied 445 U.S. 960, 100 S. Ct. 1646, 64 L. Ed. 2d
235, the plaintiff in a defamation suit against a prosecu-
tor and his deputy alleged (1) that he had been indicted
on a narcotics charge which was later dismissed for pro-
cedural reasons; (2) while the indictment was pending,
the prosecutor’s deputy advised a newspaper reporter
that the plaintiff had grossed $18,000 a week from heroin
sales, was part of a nation-wide heroin ring and the in-
dictment was the result of two months investigation; and
(3) the prosecutor was negligent in hiring and supervis-
ing his deputy. The court held:

‘¢ * * * The prosecutor, as an elected law enforce-
ment official, has a duty to inform the public re-
garding cases which are pending in his office. He
must be able to exercise his. best judgment, indepen-
dent of other irrelevant factors, in serving as the
State’s advocate and in communicating such devel-
opments and events to the public. Were a prosecu-
tor granted only a qualified immunity, the threat of
lawsuits against him would undermine the effective-
ness of his office and would prevent the vigorous
and fearless performance of his duty that is essen-
tial to the proper functioning of the criminal justice
system. ‘The public trust of the prosecutor’s office

App. 20

would suffer if he were constrained in making every
decision by the consequences in terms of his own
potential liability in a suit for damages.’ Imbler v.
Pachtman, supra, 424 U.S. at 424-5, 96 S. Ct. at 922,
47 L. Ed. 2d at 140.”
As to the alleged negligent hiring of his deputy, the court
held that it is a well known common-law rule that an offi-
cial who has discretionary functions enjoys immunity for
acts within the scope of his employment and will not be
held liable for errors, mistakes of judgment or unwise
decisions in the exercise of that discretion. The court
held that employment and supervision of his employees
is a discretionary function.

In Kuchenreuther v. Whatcom County, 24 Wash. App.
716, 604 P. 2d 499 (1979), after dismissal of an informa-
tion, the prosecuting attorney was sued for malicious
prosecution and outrage alleging in particular that he:

‘*willfully, wantonly, maliciously, wrongfully, and out-

rageously abused the prosecutorial processes and

acted outside of said process in an improper and

perverted manner to accomplish a result outside the

lawful purposes of legal process.’’ 604 P. 2d at 500.
Summary judgment was held to be proper under prosecu-
tor’s absolute immunity for acts performed in connection
with the prosecution. Iowa likewise grants this broad
absolute immunity to prosecutors. Gartin v. Jefferson
County, Iowa App., 281 N. W. 2d 25 (1979), supreme court
rehearing denied.

We can see, then, that since Imbler the state high
courts have been extending the boundary to a consider-
able extent. The federal courts have done likewise, though
probably not as uniformly as have the state courts.

App. 21

In Atkins v. Lanning, 556 F. 2d 485 (10th Cir. 1977),
the state prosecutor filed felony charges by mistake
against the wrong person. The arrested person sued after
having been held in jail or a mental institution for some
33 days. Citing Imbler, it was held that the prosecutor
had absolute immunity in spite of the misfire. It was
explained by the court that the investigative work done
in preparing and presenting a case by the prosecutor
was a part of the judicial function for which absolute
immunity is granted and that some leeway is needed to
perform the function of assembling the State’s case, in-
cluding a preliminary investigation.

The federal courts must apply a functional analysis
to determine whether the prosecutor’s acts fall within the
bounds of ‘‘judicial’’ as opposed to ‘‘investigative or ad-
ministrative’ duties. Ross v. Meagan, 638 F. 2d 646
(3rd Cir. 1981). This deserves analysis. In the case be-
fore us, the real cause of Rupe’s purported damages was
the filing of the complaint charging him with perjury.
That is a ‘‘judicial” process involving the courts. While
negligence in investigation and other acts of negligence
and misconduct are alleged as a basis for awarding dam-
age, once the criminal complaint is filed, then we must
examine the other acts to determine if they are related
to the prosecutor’s role as an advocate. As held in For-
syth v. Kleindienst, 599 F. 2d 1203 (8rd Cir. 1979), cert.
denied 453 U.S. 913, 101 8. Ct. 3147, a prosecutor is abso-
lutely immune from suit where the allegations of the com-
plaint relate solely to initiating and presenting a crim-
inal case. The court said:

‘6 * * * To grant a prosecuting attorney absolute im-
munity over his decision to initiate a prosecution

App. 22

while subjecting him to liability for securing the in-

formation necessary to make that decision would

only foster uninformed decision making and the po-

tential for needless actions. * * *’’ 599 F. 2d at 1215
In Forsyth it was held that Attorney General Mitchell
would not be absolutely immune from suit unless he au-
thorized a warrantless wiretap in the performance of a
function intimately related to the judicial process. The
record there was not clear as to whether a criminal case
had been initiated, so the circuit court remanded for that
determination by the district court.

In Apton v. Wilson, 165 D.C. App. 22, 506 F. 2d 83
(1974), it was held on summary disposition that the At-
torney General of the United States, his deputy and as-
sistant did not have absolute immunity in directing Dis-
trict of Columbia police investigative activity which led
to innocent plaintiffs being swept up in mass arrests and
deprived of Fourth and Fifth Amendment rights. There
they were acting not as advocate prosecutors but only
within their duties related to a disruption of federal gov-
ernment operations and were entitled only to a qualified
immunity. In Guerro v. Mulhearn, 498 F. 2d 1249 (1st
Cir. 1974), it was held that there could be no summary
disposition on the basis of absolute immunity in the face
of an allegation that the prosecutor conspired with police
officers to use perjured testimony in obtaining a search
warrant. The act there was related to an investigatory
rather than judicial role of the district attorney and en-
titled him to only qualified immunity because, as the
court stated, ‘‘[i]t would be wrong to hold the officers
liable but the State’s Attorney exempt.’’ 498 F. 2d at
1256, quoting Lewis v. Brautigam, 227 F. 2d 124, 129
(5th Cir. 1955).

App. 23

Deliberate leaking of false information by a prosecu-
tor about a plaintiff to damage his political prospects,
if it in fact occurred, is outside the rationale for abso-
lute immunity and at most, subject to a qualified good-
faith immunity. Helstoski v. Goldstein, 552 F. 2d 564
(3rd Cir. 1977). There, the circuit court remanded for
completion of discovery.

In Hampton v. City of Chicago, Cook County, Illinois,
484 F. 2d 602 (7th Cir. 1973), cert. denied 415 U.S. 917,
94 8. Ct. 1413, 39 L. Ed 2d 471 (1974), it was held on a
motion to dismiss that the state’s attorney had no abso-
lute immunity for planning to use excessive and deadly
force and then executing an illegal raid by police officers
where the purpose was tc ‘‘create fear and terror in the
Black Community.’

In Dodd v. Spokane County, Washington, 393 F. 2d
330 (9th Cir. 1968), it was held on a motion to dismiss
that there is no absolute immunity to claims for damages
against a prosecutor on the ground that he conspired
with officers and subjected plaintiff to threats of vio-
lence, actual assaults and other punishing treatment in
order to force him to testify falsely against an accused
in a criminal trial. To the contrary, absolute immunity
of prosecutors would support dismissal of a complaint
for damages charging that the prosecutor used perjured
testimony to obtain plaintiff’s conviction in that such
allegations related to the prosecutor’s actions in his role
as an advocate associated with the judicial function.
Brawer v. Horowitz, 535 F. 2d 830 (3rd Cir. 1976).

A good example of the type of administrative role
of a prosecutor which carries no absolute immunity is

App. 24

found in Maacini v. Lester, 630 F. 2d 990 (3rd Cir. 1980).
There a lieutenant detective in a prosecutor’s office filed
an action against the county prosecutor seeking damages
for forcing him to resign on the basis of false charges
and thereafter preventing him from obtaining a new
job. There was no criminal action against plaintiff.
Under such a factual situation and applying the fune-
tional test—not the official status of the prosecutor—
the court held that there would be no absolute immunity
if the prosecutor was acting in a purely investigative or
administrative capacity, which the facts seem to indicate.

In citing some of the foregoing cases not in point
for disposition here, we do so only for purposes of illus-
trating what the courts are doing in trying to bracket
the scope of immunity and we do not purport by citation
to decide various unrelated situations in advance. We
only decide the case now before us on its facts and cir-
cumstances and use only the authority pertinent thereto.

Stated in universal terms. from all of the foregoing,
we conclude and hold that to the extent the securing of
information is necessary to a prosecutor’s decision and
preparation to initiate a criminal prosecution, the shield
of absolute immunity attaches and at that point the in-
quiry as to immunity is concluded. It is not our intent
that this rule be so stingily applied that a prosecutor
feels threatened by a suit for damages if his/her investi-
gation is too thorough; otherwise the objectives sought
by immunity would be seriously impaired or destroyed.
This is not an area in which a sharp line may be drawn,
other than by a test of reasonableness. Taking into con-
sideration the perimeters drawn by the many state and

App. 25

federal courts, the facts of this case disclose that before
initiating the criminal prosecution against Rupe, and in
order to prepare for the event, it was necessary, in mak-
ing the decision to prosecute, that Blake check out the
information received that Rupe was a convicted felon.
That the investigation was inadequate or negligently or
spitefully undertaken without probable cause is irrelevant
to the question of immunity once the necessity is shown.
The absolute immunity defeats the action at the outset.
Imbler, 424 U.S. at 419, fn. 13, 96 S. Ct. at 989.

In consideration of the facts before us, as a post-
script, it is worthy of weight that the prosecution of Rupe
was because of what the prosecutor considered perjury
by a prospective juror, arising in a judicial proceeding
by failure to disclose a conviction of a felony. In per-
forming the investigative function, the integrity of the
judicial process was at stake, so not only do we have an
investigation involving the initiation of a criminal pros-
ecution, but a prosecution resulting from alleged in-court
perjury. We therefore find a greater involvement of the
judicial function than the usual investigation by a prose-
cutor in preparation for initiation of the criminal process
by filing of a complaint and trial. To this we add the
fact that for purposes of exercising a peremptory chal-
lenge, it is probably important that the prosecutors know
if a prospective juror was ever convicted of a crime, even
though pardoned. However, the questioning in the case
before us did not hone that fine. This may be a matter
of future concern to prosecutors.

App. 26

On the matter of the news media release’ announcing
the prosecution of Rupe, we hold that such a release is
within the outer perimeter of the prosecutor’s authority
and discretion. In Barr v. Matteo, 360 U.S. 564, 79 S. Ct.
1335, 3 L.Ed. 2d 1434 (1959), an official of a federal
agency was held to have absolute immunity from a libel
action in suspending government employees and announec-
ing by way of a press release the reasons for doing so.
It was held that the press *elease was an appropriate
exercise of discretion within the scope of the officer’s
duties, a matter of wide public interest and concern. See
also Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40
L. Ed. 780 (1896), where an attorney who had been rep-
resenting certain postal employees in collecting salary

7The news release as reflected by news media clippings:

“DOUGLAS—A Douglas city employee has been charged
with perjury, the Converse County attorney's office said
Thursday.

“The charge against Thomas Rupe, a Douglas building in-
spector, states that Rupe was convicted of a felony and
served a prison sentence but did not say so when inter-
be tg af jury duty, a spokesman for the county attorney's
office said.

“Persons convicted of a felony are not qualified to serve
on a jury.

“Rupe was a member of the 1979 jury pzael of the Eighth
Judicial District. He served on the jury panel in the Au-
sama first-degree murder of Donald Gorman, who was
ound innocent.

“He was also tentatively seated as a juror for the first-
degree murder trial of Dennis and Derrick Parkhurst of
Casper, which ended in a mistrial Sept. 20 before jury
selection was completed.

“Prospective jurors are told in one statement at the be-
ginning of selection if any have been convicted of a felony,
are disabled or are over-age, that they are not qualified.’

App. 27

claims sued the postmaster general for libel because he
circularized information to postal employees that no at-
torney was necessary to collect certain salary adjustment
claims, authorized by Congress. The Court held that the
postmaster general had absolute immunity and his mo-
tives could not be questioned.* In Candelaria v. Robin-
son, supra, it was held proper for a prosecutor to, by
press release, inform the public as a matter of public
interest of official acts within the scope of his duties.
Even if it was defamatory, which it was not, see Com-
ment ¢ to 4656, Restatement, Torts 2d, supra:

“ce, Policy of the law. The absolute privilege of the
public prosecutor under the rule stated in this Sec-
tion is based upon the same policy of law that gives
immunity from liability to a public prosecutor who,
in the course of a criminal prosecution, publishes de-
famatory matter about the accused or third persons,
on which see § 586, Comment b.”

Section 586:

“An attorney at law is absolutely privileged to pub-
lish defamatory matter concerning another in com-
munications preliminary to a proposed judicial pro-
ceeding, or in the institution of, or during the course
and as a part of, a judicial proceeding in which he
participates as counsel, if it has some relation to the
proceeding.”

Comment b to § 586:

“bh. Prosecuting attorneys. The rule stated in this
Section is applicable to attorneys who participate in

8See Walker v. Cahalan, 542 F. 2d 681 (6th Cir. 1976), cert.
denied 430 U.S. 966, 97 S. Ct. 1647, 52 L. Ed. 2d 357, where
prosecutor was not granted absolute immunity for press release
made after there was soy pending in court because of a
nolle prosequi, to which case it pertained.

App. 28

judicial proceedings, whether civil or criminal. It
protects a prosecuting attorney as well as a defense
attorney in a criminal action. So too, it affords pro-
tection to a prosecuting attorney while conducting an
investigation before a grand jury, and this is true
irrespective of the outcome of the investigation.”

See also, Foster v. Pearcy, supra.

We likewise so hold. For the same reasons we find no
objection to the prosecutor informing Rupe’s employer that
charges had been filed against Rupe.’ The employer had a
right to know.

The hiring of Blake’s investigator was discretionary.
Foster v. Pearcy, supra; §895D (3) (a), Restatement,
Torts 2d, infra.

Blake’s motion to dismiss should have been granted.

V

As to Dekmar, the case was submitted to the jury upon
the plaintiff’s claims of (1) maliciously instituting criminal
proceedings against plaintiff; (2) negligently or recklessly
conducting his investigation of the perjury charges against
plaintiff; (3) intentionally or recklessly causing plaintiff
severe emotional distress; and, (4) by publicizing matters

Section 577, Restatement, Torts 2d:

“(1) Publication of defamatory matter is its communica-
tion intentionally or by a negligent act to one other than
the person defamed.

“(2) One who intentionally and unreasonably fails to re-
move defamatory matter that he knows to be exhibited
on land or chattels in his possession or under his control
is subject to liability for its continued publication.”

App. 29

of a kind highly offensive to an ordinary man concerning
the private life of the plaintiff.

The liability or non-liability of Dekmar is based upon
a different rule than that applicable to Blake. As an in-
vestigator, he performs police and investigative functions.
It is not his function to enter into and make the decision to
prosecute, nor does he have the responsibility of presenting
the State’s case for determination. His role does not have
the intimate association with the judicial function as that
thrust upon the prosecutor. Accordingly, the courts almost
unanimously apply a rule of qualified immunity to one in
Dekmar’s position. The test is whether the complained of
action was taken in good faith with reasonable grounds
therefor in the light of all the circumstances.

Different than in the case of prosecutors, the common
law has never granted police officers an absolute immunity.
Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d
288 (1967). That case is one of the root authorities for
this court’s decision in Rodarte v. City of Riverton, Wyo.,
552 P.2d 1245 (1976), upon which Rupe seems to rely.
Rodarte only decided that, in a civil action for wrongful
arrest or imprisonment involving a warrantless arrest, the
police officer had as a defense that he acted in good faith
and with probable cause, a jury question. We do not in the
ease before us have a warrantless arrest but a summons’?
to appear issued upon a complaint. Rupe was not arrested
and spent no time in custody or in jail.

Rupe also cites Consumers Filling Station Company
v. Durante, 79 Wyo. 237, 333 P. 2d 691 (1958) to support

104 summons may be issued instead of a warrant of arrest
re requested by the county attorney. Rule 4, W.R. Cr.
P. J.C.

App. 30

his position that Dekmar participated in this prosecution
by filing a complaint against Rupe without probable cause,
one of the elements of malicious prosecution. That case
is not in point in that it involves an allegedly malicious civil
action initiated by a private person. Malicious prosecu-
tion is not an action available against a law enforcement
official. The elements of such an action are as set out in
§ 653, Restatement, Torts 2d:

“A private person who initiates or procures the in-
stitution of criminal proceedings against another who
is not guilty of the offense charged is subject to liabil-
ity for malicious prosecution if

“(a) he initiates or procures the proceedings with-
out probable cause and primarily for a purpose other
than that of bringing an offender to justice, and

“(b) the proceedings have terminated in favor of the
accused.”

Dekmar is not a private person.'' This view is supported
by Annotation, Civil liability of law enforcement officers
for malicious prosecution, 28 A. L. R. 2d 646 and Prosser,
Torts $119, pp. 837-838 (4th ed. 1971). The prosecutor,
not the officer lodging charges, was responsible for the
prosecution in this instance, as well.

On the other hand, Dekmar claims that he is entitled
to aboslute immunity. His defense is premised upon the

“Even if such an action were available, Dekmar would have

a complete defense in that he acted not only upon advice of

counsel but at the direction of Blake, the prosecutor. Boyer v.

Bugher, 19 Wyo. 463, 120 P. 171 (1912); Restatement, Torts 2d

It would be an obvious — to hold the prosecu-

tor immune and the investigator liable. There must be sym-

metry of treatment. Police officers are not required to predict

- Bang peril whether the prosecutor's advice and direction was
awful.

App. 31

state of the facts which indicate that he only did what he
was told to do by Blake, the prosecutor. The evidence
further indicates that most of the investigation was econ-
ducted by Blake. The press releases were prepared by
Blake and distributed by Dekmar.

There is a special body of law which has been de-
veloped to give a measure of protection to a public official
from the harassment and risk of being muleted in damages
for mistakes he may make in the performance of his public
duties. The background of the rule is best articulated in
Scheuer v. Rhodes, 416 U.S. 232, 94 8. Ct. 1683, 40 L. Ed.
2d 90 (1974) :

“e * * [T]he common law soon recognized the neces-
sity of permitting officials to perform their official
functions free from the threat of suits for personal
liability. This official immunity apparently rested,
in its genesis, on two mutually dependent rationales:
(1) the injustice, particularly in the absence of bad
faith, of subjecting to liability an officer who is re-
quired, by the legal obligations of his position, to
exercise discretion; (2) the danger that the threat of
such liability would deter his willingness to execute
his office with the decisiveness and the judgment re-
quired by the public good.

“* * * [I]t is important to note, even at the outset,
that one policy consideration seems to pervade the
analysis: The public interest requires decisions and
action to enforce laws for the protection of the public.
Mr. Justice Jackson expressed this general proposition
succinctly, stating ‘it is not a tort for government to
govern.’ Dalehite v. United States, 346 U.S. 15, 57, 73
S. Ct. 956, 979, 97 L. Ed. 1427 (1953) (dissenting opin-
ion). Public officials, whether governors, mayors or
police, legislators or judges, who fail to make deci-

App. 32

sions when they are needed or who do not act to im-
plement decisions when they are made do not fully
and faithfully perform the duties of their offices. Im-
plicit in the idea that officials have some immunity—
absolute or qualified—for their acts, is a recognition
that they may err. The concept of immunity assumes
this and goes on to assume that it is better to risk
some error and possible injury from such error than
not to decide or act at all. In Barr v. Matteo, 360
U.S. 564, 572-573, 79 S. Ct. 1335, 1340, 3 L. Ed. 2d
1434 (1959), the Court observed, in the somewhat
parallel context of the privilege of public officers
from defamation actions: ‘The privilege is not a badge
or emolument of exalted office, but an expression of
a policy designed to aid in the effective functioning
of government.’ See also Spalding v. Vilas, 161 U.S.,
at 498-499, 16 S. Ct., at 637.”

While Dekmar had the badge of a deputy sheriff to
facilitate the execution of his duties, he was not acting in
that capacity. His responsibility must be tested by what
function he was performing with respect to plaintiff's
claim. His office was that of investigator hired by the
county and prosecuting attorney to do such investigative
work as she might assign. There can be no question but
that he is a part of the executive branch of government.
His duties on no occasion would ever rise to those of quasi-
judicial such as attach to a prosecutor when involved in
and preparing for initiation of a criminal prosecution.

The Supreme Court in Scheuer fashioned a rule we
hold applicable to Dekmar:

“* * * [A] qualified immunity is available to officers
of the executive branch of government, the variation
being dependent upon the scope of discretion and re-
sponsibilities of the office and all the circumstances
as they reasonably appeared at the time of the action

App. 33

on which liability is sought to be based. It is the ex-
istence of reasonable grounds for the belief formed at
the time and in light of all the circumstances, coupled
with good-faith belief, that affords a basis for quali-
fied immunity of executive officers for acts performed
in the course of official conduct. * * *”
Dekmar had no discretion or responsibility in making the
decision to prosecute. He was a layman not acting as one
learned in the law, acquainted with the nuances of whether
Rupe had been pardoned.” The investigation had been
conducted by his superior and there is no showing that he
had reason to question her professional skills. There is no
showing that he had reason to question her professional
skills. There is no question that Rupe was convicted of a
felony and that he did not mention that fact upon general
questioning of the jury. In fact, according to Rupe’s own
testimony, he was not aware of any document that his civil
rights had been restored or a certificate of discharge is-
sued until produced at the preliminary hearing.

The rule of Scheuer is more simply stated to be that
a public official enjoys a qualified immunity if he in good
faith entertains a reasonable belief that his actions are
lawful, notwithstanding a subsequent judicial determina-

"In order to determine whether Rupe had been pardoned,
it was necessary to sift through the statutes. His discharge
document did not use the term “pardon.” At the time of filing
the criminal complaint against Rupe for perjury, the Wyoming
procedure of pardoning a prisoner on discharge was somewhat
unique. No similar treatment was given the criminal convicted
of a felony who successfully concluded a period of probation.
That appeared to be an inconsistency in the law, eventually
recognized by the amendment of 1981, fn. 2, supra. The un-
usual automatic pardon has thus been eliminated. As indicated
in the concurring opinion, whether Dekmar was lawfully par-
doned is not open and shut.

App. 34

tion that they are not; courts will not unfairly use hind-
sight in assessing official actions challenged in litigation.
Apton v. Wilson, supra, 506 F. 2d 83.

That rule of qualified immunity for police, including
investigators and other members of the executive branch,
is a generally accepted doctrine. Atkins v. Lanning, su-
pra; Ross v. Meagan, supra; Forsyth v. Kleindienst, su-
pra.

The rule as we have stated it has arisen principally in
cases claiming a violation of civil rights under the federal
Civil Rights Act, 42 U.S. C. § 1983. However, we adopt it
as equally applicable to the allegedly tortious conduct of
public officers against whom damages are sought. We find
it singularly simple and much easier to apply than the
many complexities found in the general law of torts. It is
not inconsistent with the rule of law set out in § 895D, Re-
statement, Torts 2d, and as explained by accompanying
comments :

“(1) Except as provided in this Section a public offi-

cer is not immune from tort liability.

“(2) A public officer acting within the general scope
of his authority is immune from tort liability for an
act or omission involving the exercise of a judicial or
legislative function. [Prosecutor]
“(3) A public officer acting within the general scope
of his authority is not subject to tort liability for an
administrative act or omission if
“(a) he is immune because engaged in the exer-
cise of a discretionary function,
“(b) he is privileged and does not exceed or
abuse the privilege, or
“(c) his conduct was not tortious because he
was not negligent in the performance of his re-
sponsibility.”

App. 35

Comment (e) after discussing absolute immunity goes on
to explain:

“Tn a second situation, the existence of the ‘immunity’
may be treated as meaning that the officer is not liable
if he made his determination and took the action that
harmed the other party in good faith, in an honest ef-
fort to do what he thoughc the exigencies before him
required. Here, in a suit against him, his guvod faith
is an issue of fact before the court and there is always
the possibility that the court may make an incorrect
determination regarding it. It may be questioned
whether this is more properly called an iminunity or
a privilege. If the action against the officer is for an
intentional tort in which the officer knows that he is
imposing the harm on the other party or is substan-
tially certain to do so, this could properly be called
a privilege. But if the action is for negligence, for
acting or failing to act, thus creating an unreasonable
risk of harm, it would be called an immunity. There
are no privileges in a negligence action, since the is-
sues involved are treated in the issue of whether the
conduct was negligent. For this reason it seems ap-
propriate to treat the defense as an immunity in both
situations. It is a limited immunity, but it is as broad
as good faith.

“In a third situation, the existence of the ‘immunity’
may mean that the officer is not liable if his deter-
mination to take or not to take the action was reason-
able. In a tort action against him, there is thus an-
other issue of fact—the reasonableness of his decision,
if he is acting in good faith. The trier of fact is not
deciding whether he was right in his determination
but whether he made a reasonable determination. In
an action for an intentional tort, this is accurately de-
scribed as a privilege. It is sometimes described as
a defeasible or conditional privilege, as distinguished
from an absolute privilege. In an action for negli-
gence, the question of whether the officer acted rea-

App. 36

sonably is actually one of whether he was negligent
or not. The standard of what a reasonably prudent
person would do under like circumstances applies. O1°
of the circumstances is that he may be acting in a pro-
fessional capacity rather than performing mini-
sterial acts. This means that, like the doctor or law-
yer, he is held to a higher degree of skill and knowl-
edge and training and expertise, but also that he may
be given substantially wider discretion in the exercise
of that knowledge and expertise and that he may be
held not liable for a ‘mere error judgment.’ This is
sometimes expressed by stying that he is liable only
for action that is palpably unreasonable. It is mis-
leading and productive of confusion to speak of im-
munity to tort Jiability in either of these situations.”

This court, in Wendling v. Cundall, Wyo., 568 P. 2d
888, 890 (1977), has expressed an Illinois definition of
“good faith” as being honest, lawful intent, and the con-
dition of acting without knowledge of fraud and without
interest to assist in a fraudulent or otherwise unlawful
scheme, together with the definition set out in Cone v.
Ivinson, 4 Wyo. 203, 33 P. 31 (1893):

“ * * * ‘Good faith consists in an honest intention to
abstain from taking any unconscientious advantage
of another, even though the forms or technicalities
of law, tugether with an absence of all information
or belief of facts which would render the transaction
unconscientious.’ ”

While the term “reasonable” hardly needs defining,
this court has undertaken to do so in Claussen v. State,
21 Wyo. 505, 516, 183 P. 1055, 1056 (1913), wherein it was
explained from Webster “as having the faculty of rea-
son; rational; governed by reason; being under the in-
fluence of reason; thinking, speaking, or acting ration-

App. 37

ally, or according to the dictates of reason; agreeable to
reason; just; rational.” We find no evidence of bad
faith or unreasonable conduct by Dekmar; so we must
conclude as a matter of law that he acted reasonably, in
good faith in light of all the circumstances existing at the
time. Dekmar’s motion for summary judgment should
have been granted, or, at the very latest, Dekmar’s mo-
tion for a directed verdict at the close of plaintiff’s evi-
dence should have been granted.

VI

This part is added because we raised the issue of
timeliness of the notice of appeal. The parties are en-
titled to know not only that we hold the notice timely,
but also the reasoning therefor. The design of this part
also meets the dissenting opinions. The concurring opin-
ion bolsters the views here expressed.

The applicable rules for interpretation are:

Rule 2.01, W.R.A.P., in pertinent part:

“An appeal, civil or criminal, permitted by law from
a district court to the Supreme Court, shall be taken
by filing a notice of appeai with the clerk of the
district court within fifteen (15) days from entry of
the judgment or final order appealed from and serv-
ing the same in accordance with the provisions of
Rule 5, W.R.C.P., unless a different time is pro-
vided by law * * *. The running of the.time for
appeal in a civil case is terminated as to all parties
by a timely motion made by any party pursuant to
any of the rules hereinafter enumerated, and the full
time for appeal commences to run and is to be com-
puted from the entry of any of the following orders
made upon timely motion under such rules, or when

App. 38

such motions are deemed denied: granting or deny-
ing a motion for judgment under Rule 50(b), W.R.
C.P.; granting or denying a motion under rule
52(b), W.R.C.P., to amend or make additional find-
ings of fact, whether or not an alteration of the judg-
ment would be required if the motion is granted;
granting or denying a motion under Rule 59, W.R.
C.P., to alter or amend the judgment; or denying a
motion for a new trial under Rule 59, W.R.C.P.”
(Emphasis added.)

Rule 50(b), W. R.C.P., in pertinent part:

“ * * * Motions for judgment notwithstanding the
verdict shall be determined within sixty (60) days
after the entry of the judgment, and if not so deter-
mined shail be deemed denied, unless within such
sizty (60) days the determination is continued by
order of the court. but a continuance shall not extend
the time to a day more than 90 days from the date
of entry of judgment.” (Emphasis added.)

Rule 59(f), W. R.C. P.:

“Motions for new trial and motions to alter or amend
a judgment shall be determined within sixty (60)
days after the entry of the judgment, and if not so
determined shall be deemed denied, unless within
such sixty (60) days the determination is continued
by order of the court but a continuance shali not
extend the time to a day more than 90 days from the
date of entry of judgment.” (Emphasis added.)
First, let it be noted that nowhere in any of these rules
appears any requirement that the order of continuance
referred to must be in writing, labeled “continuance” and
signed by the district judge, or even so written and signed
by anyone else. The only critical requirements are that
there be a continuance based upon an order and that the
total time from date of judgment for determination not

exceed ninety days.

App. 39

The judgment on the verdict was entered on April
27, 1981. On May 5, 1981, appellants as defendants
timely filed their motion for judgment notwithstanding
the verdict and motion for new trial or remittitur. That
filing under Rules 50(b) and 59(f), W.R.C.P. termi-
nated the running of the time for appeal under Rule 2.01,
W.R.A.P. The case had been tried in Douglas, Converse
County, Eighth Judicial District, by the district judge,
The Honorable Paul T. Liamos, Jr., of the Sixth Judicial
District, who resides in Newcastle. Judge Liamos sat on
the case by assignment. On May 22, 1981, there was filed
in the records of the district court for Converse County
and entered in the court’s journal, Vol. 26, page 50:

IN THE DISTRICT COURT
EIGHTH JUDICIAL DISTRICT

State of Wyoming ) ss
County of Converse )

Civil No. 8360

THOMAS N. RUPE,
Plaintiff,
vs.
RUTH BLAKE and LOUIS DEKMAR,
Defendants.
NOTICE OF SETTING
(Filed May 22, 1981)

PURSUANT TO ORDER made upon The Court’s
own Motion in the above case, notice is hereby given that
Monday the 29 day of June 1981 at 5:30 P.M. has been
set for Hearing of all of Defendants’ Motions, in said

App. 40

cause. Parties and counsel will govern themselves accord-
ingly, and copies will be mailed to parties and/or counsel
of record in the manner provided by law.

IF A COURT REPORTER is needed for the above
setting, counsel should make early arrangements with the
appropriate Reporter.

Cases shall not be continued upon stipulation of coun-
sel alone, but such continuances may be allowed by order
of the Court. No such continuance shall be allowed ex-
cept for good cause shown.

Dated this 22 day of May, 1981.

Docket ¥

Judgment —

Journal 26

Page 50
JOAN LORE
CLERK DISTRICT COURT
by /s/ Maxine Sundquist

Deputy
Copies to:

Judge Paul T. Liamos, Jr.
Raymond B. Hunkins

Hirst and Applegate

John E. Stanfield

Board of County Commissioners

388

The above record ef the order of the court setting the
hearing was made prior to expiration of the initial sixty-
day limit of Rules 50 (b) and 59 (f), W.R.C. P. The date
set for the hearing was after the sixty days fixed by those
rules. On July 10, 1981, still prior to expiration of the

App. 41

ninety-day limit of the same rules, Judge Liamos signed
an order denying defendants’ post-trial motions. On July
23, 1981, appellants-defendants’ notice of appeal was filed
within the 15 days from the order of denial as required
by Rule 2.01, W. R. A. P.

A full-blown hearing was held at the June 29, 1981
setting of the post-judgment motions. There is nc mo-
tion by the plaintiff-appellee or any other showing any-
where in the record objecting to the hearing set for that
time on the ground that there had been no continuance by
order of the court for determination of the motions. The
transcript of the hearing on June 29, 1981, fails to disclose
the slightest hint that it was irregular as being out of time
or not properly continued. The whole atmosphere reflected
by the record and hearing by adversary counsel and the
trial judge was that if a continuance by order of the court
was necessary, it was granted and evidenced by the court
through the notice of setting and the conduct of all par-
ticipants.

Rule 59 (f), in the part with which we are concerned,
was originally a part of the Code of Civil Procedure, hav-
ing been enacted by the legislature as chapter 112, Session
Laws of Wyoming 1935." The Federal Rules of Civil Pro-
cedure contain no such provision. The purpose of such a
rule is explained by this court in Board of Com’rs of

Chapter 112, S. L. Wyo. 1935:

“Motions for new trial shall be determined within sixty
days after the rendition of judgment, and if not so deter-
mined shall be deemed denied, unless continued by order
of the court, or by stipulation.”

Continuance by stipulation is not now allowed by the rule.

App. 42

Natrona County v. Casper Nat. Bank, 55 Wyo. 144, 96 P.
2d 564 (1939) :

‘Statutes of this kind in substance have been enacted
in a number of States of the Union, and, without un-
dertaking to be exhaustive, we may mention the com-
monwealths of Montana, California, Oregon, Wiscon-
sin, Arizona, Alabama and Colorado. The enactment
of such laws is evidently with the idea of expediting
court business and preventing trial judges from keep-
ing motions for new trial under advisement for an un-
reasonable length of time. Statutes of this character
have generally been held to be mandatory. * * *”
While that case dealt with the statute which provided for
a stipulation for continuance, it contains a discussion of
the subject which gives useful insight into the functions
of the rule. In that case this court noted that there was
no order of continuance, but the parties appeared and
argued a motion for new trial and the court entered an
order on the merits after the sixty-day period prescribed
by statute. This court further observed that the motion
was argued and contested on its merits, and both parties,
as well as the court, treated the motion as undisposed of
by operation of law. There is more to the case than first
meets the eye. It speaks approvingly of precedent from
other states with similar statutes or rules that the parties
may waive any right to claim a discontinuance of the mo-
tion consequent from the absence of an order by appear-
ing and unreservedly contesting the merits of the motion
for new trial. By the same token, in the case before us,
the parties and the trial court treated the hearing and de-
termination of the motions as continued—and what could
be more reasonable! It was further held that denial of
such a motion by operation of law is for the benefit of the

App. 43

party who obtained the judgment and may be waived by
him by appearance and failure to object. This court like-
wise approved the following in Board of Com’rs, supra,
now rewritten and appearing in 21 C.J.S. Courts § 109,
pp. 163-168:

“‘A want of jurisdiction of the subject matter cannot
be waived; but where a court has general jurisdiction
of the subject matter a lack of jurisdiction of the par-
ticular case may be waived, as may other objections
to jurisdiction, such as lack of jurisdiction of the per-
son. An objection, if it can be waived, is waived,
among other methods, by invoking, or submitting to,
the court’s jurisdiction. [Black letter rule.]

“An absolute want of jurisdiction of the subject mat-
ter or cause of action cannot be waived, and such jur-
isaiction cannot be conferred by waiver. Accordingly
a lack of jurisdiction of the subject matter is not
waived by answer, general demurrer, failing to demur,
failing to object to, or otherwise raise the question of,
jurisdiction, going to trial on the merits, moving for
a new trial, appealing, or partially complying with
the judgment. Moreover, the objection that the court
completely lacks jurisdiction of the subject matter
may be raised in any manner.

“On the other hand, objections to the venue, the pro-
cedure, including the procedure by which the court ac-

4As it appeared in 15 C. J. 845 | 164, quoted in Board of
oa of Natrona County v. Casper Nat. Bank, 96 P. 2d 564 at

“ ‘But, where the court has general jurisdiction of the sub-
jes -matter, a lack of jurisdiction of the particular case may

waived by failure to take timely and specific objections,
or an invocation of or submission to the jurisdiction may
raise an —— to deny such jurisdiction. So also the
parties may either expressly or by their conduct, waive
objections to remedies pursued in courts having jurisdic-
tion of the subject-matter.’ ”

App. 44

quired jurisdiction of the particular case, or the rem-
edy pursued may be waived, as may a lack of juris-
diction of the person.

“Where the court has general jurisdiction of the sub-
ject matter, a lack of jurisdiction of the particular
case, as dependent upon the existence of particular
facts, may be waived.

“What constitutes waiver. Objections to lack of jur-
isdiction of the person, and other objections to juris-
diction not based on the contention that there is an
absolute want of jurisdiction of the subject matter,
are waived by invoking the court’s jurisdiction, as by
a cross bill or counterclaim, consent, or voluntary sub-
mission, to jurisdiction, or conduct amounting to a
general appearance, or objecting to the jurisdiction of
the subject matter, failing to raise the question of
jurisdiction in the proper manner, seeking relief on
a ground additional to, or other than, want of juris-
diction, appealing, or by any other conduct indicating
an intention to abandon or forego the objection.” (Dis-
cussion of Rule. Emphasis added and footnotes omit-
ted.)

The dissent overlooks the fact that courts are for liti-
gants as the affected parties. We do not function for the
purpose of demonstrating our authority and awesome
power to wave a wand and make an appeal disappear, but
exist to administer justice to those who come to settle
their disputes. The deadline provisions of Rules 50 (b)
and 59 (f) have served our purpose of expediting litiga-
tion. The motions were determined within the limits of
the rule. It is not our function to concoct a rule viola-
tion, when there is evidence of a continuance not only by
conduct but by express order of the district court. The
circumstances here are unlike any in cases where we have
decided a nctice of appeal to be untimely,

App. 45

There is authority in Brasel and Sims Construction
Co. v. Neuman Transit Co., Wyo., 378 P. 2d 501 (1963)
for finding a continuance in the record. In that ease the
defendant moved for a new trial under Rule 59 (f)'5 and
later moved for an extension of time for determination of
the motion to August 23. The motion was argued on
August 21, taken under advisement by the district judge
but was not determined until October 11 by entry of an
order overruling the motion. The determination was only
continued to August 23 but this court said: “In the in-
stant situation both court and counsel at the time of the
hearing of the motion apparently proceeded as if the con-
tinuance was to be effective until the matter was resolved
by the trial court. Accordingly, the motion to dismiss
{in the supreme court] must be overruled.” That is ex-
actly what occurred in the case before us—the court and
counsel proceeded as if a continuance had been granted,
even if it had not.

This court, by In re Potter’s Estate, Wyo., 396 P. 2d
438 (1964), held that there may be an implied continu-
ance under Rule 59(f), supra, by the action of the trial
judge in permitting delay in entry of an order overruling
a motion for new trial. He thus manifests an intent to
continue determination of the motion.

'SRule 59 (f), W. R. C. P. at that time provided:

“Motions for new trial shall be determined within sixty
days after the entry of the judgment, and if not so deter-
mined shall be deemed denied, unless within such sixty
days the determination is continued by order of the court
or by stipulation.”

As with the transplanted statute, fn. 13, continuance by stipula-
tion is not allowed.

App. 46

In Brasel, supra, this court also noted that there was
a lack of clarity of Rule 59(f), W.R.C.P. in such a situa-
tion. There is also a lack of clarity in Rules 50(b) and
59(f), W.R.C.P. as to what to do in the appeal now be-
fore us under the circumstances. We do as this court
did in both Board of Com’rs and Brasel—proceed as did
the trial judge and counsel on the basis that there was
an effective continuance of the determination. The case
at bar is stronger than either of those cases because there
is present here a notice of setting evidencing an order
of the court continuing the matter to meet his convenience
as a visiting judge.

Rather recently this court has refused to dismiss an
appeal because of lack of clarity in the applicable rule.
In Downs v. State, Wyo., 581 P. 2d 610 (1978), this court
refused to dismiss an appeal even though this court itself
had raised the question of timeliness of the notice of ap-
peal, stating that “[bJefore we will dismiss an appeal for
failure to file a timely notice of appeal, there must be
clear grounds for doing so.” It is judicially unbecoming
to set traps for trial judges and counsel, and we should
not construe our rules to reach that result.

What is a continuance? Black’s Law Dictionary
(1979) defines it: “Continuance. The adjournment or
postponement of a session, hearing, trial, or other pro-
ceeding to a subsequent day or time. Also the entry of
a continuance made upon the record of the court, for the
purpose of formally evidencing the postponement, or of
connecting the parts of the record so as to make one con-
tinuous whole.” Ballentine’s Law Dictionary (1948):
“continuance. An adjournment of a cause from one day

App. 47

to another, which may be in the same or in a later term,
although the word ‘postponement’ is preferable where a
trial or hearing is delayed only until a later day of the
same term, or until a later hour of the same day.” Web-
ster, Third International: “Continuance. * * * 5: the
adjournment of the court proceedings in a case to a fu-
ture day; also: the entry of such adjournment and the
grounds thereof on the record.” Continuance is the post-
ponement of an action pending in a court to a subsequent
day . Ferber v. Brueckl, 322 Mo. 892, 17 S. W. 2d 524, 527
(1929). A continuance generally means only that the
date of hearing is postponed. It does not affect the mer-
its of a case; it leaves all matters as they were before,
except that the time is changed. McKinney v. Hirstine,
257 Iowa 395, 131 N. W. 2d 823, 825 (1964). Substance
must prevail over mere form, and postponement of court
action is a continuance whether or not it is so labeled.
Simakis v. District Court of Fifth Judicial for Eagle
Cty., 194 Colo. 436, 577 P. 2d 3, 5 (1978).

Other states, where similar code procedure or court
rules provide deadlines for disposing of post-trial mo-
tions, have no problems finding continuances from the
circumstances. In Patch v. Buros, 2 Ariz. App. 585, 410
P. 2d 703 (1966), the Arizona Rule of Civil Procedure
59(e), tracking the same numbering system as our rules,
provides that “[m]otions for new trial shall be determined
within twenty days after rendition of judgment, and if
not so determined shall be deemed denied, unless con-
tinued by order of the court, or by stipulation.” The trial
court took the motion under advisement and entered in
its minutes, “ORDER taking * * * Motion for New Trial
under advisement.” It was held that the order taking

App. 48

the motion under advisement is an “order of the court”
by which a motion for new trial may be “continued.”
Patch cited Zugsmith v. Mullins, 81 Ariz. 185, 303 P. 2d
261 (1956) by which the supreme court of Arizona set
the pace for such a resolution by holding that an order
taking the case under advisement is in effect an order of
continuance contemplated by the rule and the trial court
did not lose jurisdiction to rule on the motion.

In Palmer v. Quinn-Robbins Co., 52 Idaho 661, 18 P.
2d 917 (1933) it was held that since a motion for new
trial could not be heard until specifications c* error and
particulars touching alleged errors were filed, an order
extending the time for filing those items necessarily had
the legal effect of extending the time for hearing the
motion.

In State ex rel. Portykus v. Schinz, 176 Wis. 646, 187
N. W. 743 (1922), it was contended that there was no
valid continuance of a motion for new trial because there
was no written order but the court held that an oral order
actually made became the order of the court as effectively
as though entered in writing.

In Ex Parte Schoel, 205 Ala. 248, 87 So. 801 (1921),
it was held that by appearing and unreservedly contest-
ing the motion for new trial, the plaintiff waived any
right to claim a discontinuance consequent upon the ab-
sence of effective orders of continuance of the motion
even though the orders had been made orally from the
bench. The court went on to hold that the entry of rec-
_ord is no more than a ministerial performance as a me-
morial of the judicial pronouncement.

See also Britton v. Burlington Northern, Inc., Mont.
601 P. 2d 1192 (1979) where under Montana’s Rule 59(d),

App. 49

M. R. Civ. P."* the court said it would be “unconscionable”
to not consider a motion for extension of time to file a
brief in support of motion for new trial “by necessary
implication” extended the time for its ruling on the mo-
tion. Montana’s M.R. App. Civ. P., Rule 5, is practically
identical to our Rule 2.01, W.R.A.P. tolling the time
for notice of appeal when a motion for new trial is filed.

The clerk of the district court in issuing the notice
of hearing was conveying to counsel the order of the
court (the assigned district judge) that he was holding
in status quo all proceedings in the case and postponing

Rule 59 (d), M. R. Civ. P.:

“Hearing on the motion shall be had within 10 days after
it has ben served, or within 10 days after the party oppos-
ing the motion for new trial has served his affidavits as set
forth in subparagraph (c) hereinabove except that at any
time after the notice of hearing on the motion has been
served the court may issue an order continuing the hearin
for not to exceed 30 days. In case the hearing is continue
by the court, it shall be the duty of the court to hear the
same at the earliest praticable date thereafter, and the
court shall rule upon and decide the motion within 15 days
after the same is submitted. If the court shall fail to rule
upon the motion within said time, the motion shall, at the
expiration of said period, be deemed denied.

“The decision on the motion may be entered in the min-
utes of the court, or may be made in writing in chambers
or in any county in the state where the judge may be, and
be filed with the clerk of court in the county where the
action is pending. Upon the hearing, reference may be
had in all cases to the pleadings and the orders of the court
on file, and reference may also be had to any depositions
and documentary evidence offered on the trial, and to the
proceedings on the trial and, when necessary, reference
may be had to the notes of the court reporter.

“If the motion is not noticed up for hearing and no hearing
is held thereon, it shall be deemed denied as of the expira-
tion of the period of time within which hearing is required
to be held under this Rule 59.”

App. 50

(continuing) the determination of the motions, until a
hearing could be held. His order to the clerk and the
notice of setting were prior to expiration of the initial
sixty-day limitation of Rules 50(b) and 59(f), and the
date set for the hearing was within the ninety-day maxi-
mum for determination, at the end of which period would
be discontinuance of the court’s jurisdiction to act.

The clerk of the district court in doing so was carry-
ing out her duties prescribed by § 5-3-202, W.S. 1977:

“* * * He [she] shall attend upon the terms of court
held in the county for which he [she] is elected, and
perform such duties relating to his [her] office as
may be required of him [her] by the court, and shall
perform all such other duties relating to his [her]
office as are required of him [her] by law or the rules
and practice of the courts.” (Emphasis added.)

The notice reflecting that there was a continuance by
order of the court is evidenced by the fact that Judge
Liamos was present and appeared in the courtroom at the
time designated (the setting was for 5:30 p.m. but the
transcript showed the proceeding as starting at 6:00
p.m.). The court announced:

“THE COURT: Court’s in session in Civil Action
# 8360, Thomas N. Rupe against the Board of County
Commissioners of the County of Converse, et al.

“We have several motions that have been filed by the
defendants and, Mr. Parker, are you ready to pro-

ceed, sir?”
The parties certainly treated the notice of setting as an
order of the court because both sides filed preargument
briefs and were present in accordance with the direction
of the notice.

App. 51

The clerk performed a “dut[y] * * * required * * *
by the court.” The clerk, the judge, counsel for the plain-
tiff and counsel for the defendants all responded in such
a fashion that the procedures followed as a “practice of
the court.” The notice was on a printed form, further
evidence of an established practice expected and followed
by the bar.

It would be astonishing that anyone would even im-
agine that the clerk of court was undertaking to act like
a judge or usurp any power of the court rather than
performing a ministerial duty. The notice of hearing was
an affirmative record memorializing an action by the
trial court. There is no doubt that if the parties had
treated the notice as some frivolous, unauthorized action
by the clerk, that would have appeared in the record and
the notice of appeal would have then justifiably been un-
timely.

In State v. Dickson, 53 Wis. 2d 532, 193 N. W. 2d 17
(1972), cited in the dissent, the clerk’s “order” did not
indicate that it was issued as an order of the court as
here where the clerk in the notice made it clear that she
was only carrying out the order of the court on his own
motion. Furthermore, the Dickson case was an appeal
from action of a judge holding an attorney and his client
in contempt for the attorney’s action in calling on the
judge in his chambers and advising the judge that he had
authority to appear for his client and that he would not
have his client present at a pretrial hearing in the crim-
inal case. The real gist of this case was not the notice
but the unlawful action of the trial judge in requiriny
the criminal defendant to be present at a pretrial confer-
ence when there is no such requirement in Wisconsin.

App. 52

There is no element of waiver in that case and the
order of the clerk of court was only held not to be “an
order of the court in the sense used in legal procedures.”
The notice in the present case does not purport to be an
order but only transmits the order of the court itself and
conveys an order in the sense used in legal procedures.

Toulon v. Nagle, 67 Wis, 2d 233, 226 N.W. 2d 480
(1975), cited by the dissent, is likewise not in point. The
court held the appeal untimely because the notice sent
by the clerk did not recite that the extension of time was
by order of the court. The order in the case before us
recites that the notice was by order of the court, The
court further held that the extension was not granted
for cause “as required by see, 270,49, Stats.”"’" We have
no similar statute or rule requiring an extension of deter-
mination for cause, The circumstances are not compar-
able. In passing, it is noted that the Wisconsin court did
go ahead and decide that the new trial should be granted
because it can exercise its discretion and grant a “new
trial in the interest of justice,”

If those authorities are representative as stated by
the dissent, then there is no authority for the position

"The Wisconsin statutes, 4 270.49, then in effect, provided:

“(1) A party may move to set aside a verdict and for a
new trial because of errors in the trial or because the ver-
dict is contrary to law or to the evidence, or for excessive
or inadequate damages or in the interest of justice; but
such motion must be made and heard within 2 months
after the verdict is rendered, unless the court by order
made before its expiration extends such time for cause.

* * *” (Emphasis added.)

App. 53

of the dissent. The overwhelming position of the courts
of other states is that a continuance may be implied from
the circumstances. Nor is there any analogy in Bertag-
nolli v, Bertagnolli, 23 Wyo, 228, 148 P. 874 (1915), where
the clerk entered a default judgment in the face of a late-
filed demurrer, This court only held that the clerk could
not do that. Nor does Kimbel v. Osborn, 61 Wyo. 89,
156 P, 2d 279, 158 A. L. R. 1079 (1945) have any applica-
tion since it simply holds that the statute was not fol-
lowed in entering a default judgment. The key holding
of importance in those eases is from Bertagnolli; and
that is, in entry of a default judgment, the clerk must
follow the statute, In the present case, though not a de-
fault judgment case, the clerk did follow the statute. She
did as directed by the district judge and issued a notice
that he had ordered a hearing in accordance with court
practice, There is no question of the clerk exceeding her
authority, taking off on some frolic of her own, or under-
taking to play judge. She exercised no discretion,

It is for these reasons the court found the notice of
appeal timely and proceeded to decide the appeal on its
merits,

Reversed and remanded with directions to vacate the
judgment in favor of appellee Rupe and enter judgment —
for appellants Blake and Dekmar,

ROONEY, Justice, concurring.

I concur. Inasmuch as many of those discharged
from the penitentiary received certificates of discharge
containing the same or similar language to that contained
in Rupe’s certificate, I want to set forth my belief as to

App. 54

the effect of them and the effect of § 7-18-107, W. 8. 1977,'
pursuant to which the certificates were worded. Insofar
as such section provided that the governor shall issue a
certificate for discharge to convicts which shall restore
“his rights the same as though a full pardon had been
granted,” it was unconstitutional; and any recitation pur-
suant thereto contained in the form for a certificate of
discharge which provides for a restoration of civil rights
had no foree or effect in law.

The power to pardon is in the governor, and only in
the governor, as chief executive of the state. Art. 4, §5,
of the Wyoming Constitution reads in pertinent part:

“The governor shall have power to remit fines and
forfeitures, to grant reprieves, commutations and par-
dons after conviction, for all offenses except treason
and cases of impeachment; but the legislature may by
law regulate the manner in which the remission of
fines, pardons commutations and reprieves may be
applied for, * * * ”

Section 7-13-107 did not leave the discretion to grant par-
dons in the governor, It did not “regulate the manner in
which * * * pardons * * * may be applied for.” It amounted
to a legislative grant of pardon, The legislature could not
constitutionally do so,

“The powers of the government of this state are di-
vided into three distinct departments: The legislative,
executive and judicial, and no person or collection of
persons charged with the exercise of powers properly
belonging to one of these departments shall exercise
any powers properly belonging to either of the others,

'See majority opinion for provisions of 4 7-13-107, W. S.
1977, prior to May 1981 and see fn, 2 of that opinion for pro-
visions thereof after May 1981,

App. 55

except as in this constitution expressly directed or

permitted.” Art. 2,41, Wyoming Constitution.
The legislature has regulated the manner in which “par-
dons may be applied for.” See §§7-13-801 through 7-13-
806, W.S. 1977. Such has been held to not limit the dis-
cretion of the governor in granting pardons. In re Moore,
4 Wyo. 98, 31 P. 980 (1893). Appellee was not pardoned
pursuant to the provisions of these sections. The pardon
allegedly arising from the certificate of discharge was with-
out an exercise of discretion by the governor and was there-
fore invalid.

With respect to the dissent of Chief Justice Rose, I
do not believe, as stated therein, that we have departed
from our standard policy of dismissing appeals when the
notice of appeal is not timely filed. Although an “order
of continuance” is not in the record, I am persuaded that
there is sufficient record reflection or the existence of an
order setting the matter for hearing, and that such order
is sufficient to satisfy the requirement of Rule 59(f),
W.R.C. P.,’ i.e., it was sufficient to indicate that the “de-
termination” of appellant’s motions was “continued by
order of the court.”

With reference to the existence of an order setting
the matter for hearing, the majority opinion notes that
there is no requirement that the order be in writing or
labeled “continuance.” The record contains a notice of
setting which begins: “Pursuant to order made upon the
Court’s own Motion * * * ” (emphasis added), The notice
emanates from the office of the clerk of court. It is signed

*See fn. 1 of Chief Justice Rose’s dissenting opinion for
content of Rule 59 (f), W. R. C. P.

App. 56

by her, and copies were directed to the attorneys for all
of the parties. The order referred to in the notice is not
in the record.

Many orders and rulings of the trial courts are made
orally. The better practice is to either make such in writ-
ing or have them recorded as a part of a verbatim tran-
script of proceedings. However, there are other approved
methods to establish that which occurred during the pro-
ceedings and progress of a case, e. g., Rules 4.03 and 4.04,
W.R.A.P., relative to the state of evidence or proceed-
ings when no report was made or the transcript is un-
available and when correction or modification of the ree-
ord is necessary ‘The recitation of the existence of an
order by the clerk of court, as here done in the notice of
setting, is sufficient evidence of the fact of such order.

In Murry v. State, Wyo., 631 P. 2d 26, 28 (1981), we
noted the potential of an oral order, although its existence

4Although | do not base my determination thereon, Rule
60 (a), W.R.C.P., and Rule 37, W.R. Cr. P., are of interest.
Rule 60 (a), W. R. C. P., provides:

“* * * Clerical mistakes in judgments, orders or other
parts of the record and errors therein arising from over-
sight or omission may be corrected by the court at any
time of its own initiative or on the motion of any party
and after such notice, if any, as the court orders. During
the pendency of an appeal, such mistakes may be so cor-
rected before the appeal is docketed in the Supreme Court,
and thereafter while the appeal is pending ny! be so
orton with leave of the Supreme Court.” (Emphasis
a ,

Rule 37, W. R. Cr. P., provides:

“Clerical mistakes in judgments, orders or other parts of
the record and errors in the record arising from oversight
or omission may be corrected by the court at any time and
a notice, if any, as the court orders.” (Emphasis

App. 57

was not pertinent to the resolution of that case, and its
existence was there evidenced by a statement of proceed-
ings supplementing the record. It was said in an early
ease involving a criminal contempt of court:

“Undoubtedly, in judicial proceedings, an ‘order,’ as
contradistinguished from a ‘judgment,’ is often de-
fined as one reduced to writing, and entered in the
records of the court; and such is the purport of many
of the cases referred to by counsel for the defendant.
But that is by no means saying that such only is an
order. There must, in the nature of things, be an
order of a court made before it is, or can be, written
out in the records of the court by the clerk. When writ-
ten out, the writing becomes a record of the order,
and is evidence of it. Orders are almost daily given
to the marshal concerning matters to be performed in
the presence of the court, and they are s constantly
executed before being written out. Indeed, many of
them are never reduced to writing at all. Yet there
can be do doubt of their validity. Now, the language
of the statute in question is broad enough to include
all valid oral orders. The natural, ordinary meaning
of the word includes written, as well as unwritten,
orders, and there is no reason in the policy of the
law, or in the nature of things, for excluding unwrit-
ten orders. Indeed, the contrary is true. There is
just as much reason and necessity for making it an
offense to resist the execution of a lawful unwritten
order, brought distinetly and authoritatively to the
notice of the offending party, as for making it an of-
fense to resist the execution of one in writing. * * * ”
United States v. Terry, 41 F. 771, 773-774 (1890).

And in a recent case:

“*** An ‘order of a court’ may be oral, as in Comm.
of Pennsylvania v. Local Union 542 (Appeal of Freed-
man), 552 F, 2d 498 (CA 3, 1977). It may be a paper,
bearing the word ‘ORDER’, signed by a judge or other
judicial officer. Or it may be a subpoena, writ of exe-

App. 58

cution or other process.” In Re Grand Jury Proceed-
ings, 503 F’, Supp. 9, 12 (1980).

“** * An order of judgment is the decision of the
court. It may be formulated in writing by the judge,
or declared by him orally. In the latter event the duty
rests upon the clerk to write the substance upon his
records. ‘That was done in this case, and thereupon
the order became entered as completely as if written
out by the judge himself and signed by him, * * * ”

Allen v. Voje, Wis. 89 N. W. 924, 926 (1902).

The fact of an existence of an oral order together with
its import must be determined on a case by case basis. In
this case, the recitation of the fact of the order by the
clerk of court and the fact that it set a hearing on appel-
lant’s motions for June 29, 1981, at 5:30 p.m. are without
question. The integrity of the clerk’s recordation should
be equal to that of a reporter’s transcript.

With reference to the second aspect of the issue, i. e.,
whether or not the order setting the motions for trial at
a date beyond the initial 60 days allowed by Rule 59(f),
W.R.C.P., is sufficient to continue the determination of
the motions into the extended 30-day period, the purpose
behind the entire time table is important. he time table
itself, insofar as this case is concerned, is as follows:

1. Notice of appeal must be filed within 15 days from
the entry of the judgment or final order appealed from
per Rule 2.01, W. R. A. P., and such filing is jurisdictional
per Rule 1.02, W. R.A. P.

2. The running of the time in which to file a notice
of appeal is terminated if a timely motion for a new trial
is filed (as here) per Rule 2.01, W. R.A. P.

8. The motion for a new trial shall be “determined”
within 60 days after entry of the judgment unless “the

App. 59

determination is continued by order of the court” per Rule
59(f), W.R.C.P.

The purpose for setting a mandatory and jurisdictional
time within which a notice of appeal must be filed is:

“ * * * to set a definite point of time when litigation
shall be at an end, unless within that time the pre-
scribed application has been made; and if it has not,
to advise prospective appellees that they are freed of
appellant’s demands. * * * ” Matton Steamboat Co.
v. Murphy, 319 U.S. 412, 415, 63 S. Ct. 1126, 1128, 87
L. Ed. 1483 (1943).

The purpose in terminating the running of the time
in which to file an appeal when a timely motion for a new
trial has been filed is set forth in Browder v. Director, De-
partment of Corrections of Lllinois, 434 U.S. 257, 98 S. Ct.
556, 562, 54 L. Ed. 2d 521 (1978), reh. denied 434 U.S. 1089,
98 S. Ct. 1286, 55 L. Ed. 2d 795 (1978) :

“ * * * The rationale behind the tolling principle of
the Rule is the same as in traditional practice: ‘A
timely petition for rehearing tolls the running of the
[appeal] period because it operates to suspend the fi-
nality of the... court’s judgment, pending the court’s
further determination whether the judgment should be
modified so as to alter its adjudication of the rights
of the parties.’ De artment of Banking v. Pink, 317
U.S. 264, 266, 63 S. Ct. 233, 234, 87 L. Ed. 254 (1942)
(emphasis supplied). * * * ”

The purpose in setting a time for determination of
the motion for a new trial is the same as that for setting a
time in which to file a notice of appeal.

Inasmuch as the purpose in terminating the time in
which to file an appeal is to suspend the finality of the
judgment, it would seem that an order setting a date for

App. 60

a hearing beyond the original 60-day limit, but within the
authorized additional 90 days would be of equal notice and
force to suspend the finality of the judgment until the hear-
- ing date “pending the court’s further determination wheth-
er the judgment should be modified” as would an order
captioned “continuance.”

That such was taken to be so by the trial court and
all of the parties is evidenced by the fact that the hear-
ing was actually held at the time set, with the judge and
all parties in attendance and participating, and with ap-
pellee making no objection to such hearing.‘ See the ma-
jority opinion for an elaboration of this point.

The language of Rule 59(f), W. R. C. P., does not spec-
ify any particular kind of an order to accomplish the con-
tinuation. It provides that the purpose of the order is to
continue the “determination” of the matter. If the hear-
ing on the motion for a new trial were held before the
expiration of the initial 60 days, but the court had not com-
pleted its research or perhaps it had ordered briefs which
were not yet due, the usual order continuing a hearing
would not be proper. An order reflecting the fact of the
hearing and that the matter was taken under advisement
or an order setting time for briefs or some similar order
should be sufficient to continue the “determination” and
extend the time for filing a notice of appeal. An order

‘Although Rule 59 (f), W.R.C.P., then contained an ad-
ditional provision relative to continuation by stipulation, we
said, in overruling a motion to dismiss for failure to file a timely
notice of appeal, that “both court and counsel at the time of
the hearing of the motion apparently proceeded as if the con-
tinuance was to be effective until the matter was resolved by
the trial court.” Brasel & Sims Construction Co. v. Neuman
Transit Co., Wyo., 378 P. 2d 501, 503 (1963).

App. 61

setting a time for the hearing itself should also be suffi-
cient for such purpose.

Generally, the proceedings and actions of the trial
court are presumed to be regular and proper. O’Malley
v. Eagan, 43 Wyo. 233, 2 P. 2d 1063, reh. denied 43 Wyo.
350, 5 P. 2d 276, 77 A. L. R. 582 (1931). I find nothing in
this record to overcome that presumption. There was an
order of the court setting a hearing on the motion for a
new trial at a date beyond the initial 60-day limit contained
in Rule 59(f), W.R.C.P. The order continued the “de-
termination” of the motions. The notice of appeal was
timely filed.

I submit the foregoing as additional grounds for the
holding of the majority opinion.

THOMAS, Justice, concurring and dissenting.

If the issue on the merits in this case is before the court
for disposition, then I agree entirely with the disposition
made of that issue by the majority opinion. I am per-
suaded that it is necessary in our society that the prosecu-
tive discretion of a county attorney should not be inhibited
by the potential of civil action in those cases in which con-
victions are not obtained.

I must dissent, however, from the conclusion that this
court had jurisdiction in this appeal. We long have fol-
lowed the rule that the timely filing of a notice of appeal
is essential to vest this court with jurisdiction. We have
ameliorated the strictness of that rule, however, by now
providing in Rule 2.01, W. R. A. P., that:

“A notice of appeal, in a civil or criminal case, filed
prematurely shall be treated as filed on the same day

App. 62

as entry of judgment or final order, provided it com-

plies with Rule 2.02, W.R. A. P.”
In this case the judgment became final 60 days after the
filing of the motion which sought relief under Rules 50(b)
and 59(f), W. R. C. P., “unless within such sixty (60) days
the determination is continued by order of the court.”
Rule 50(b) and Rule 59(f), W.R.C.P. I am not per-
suaded that a Notice of Setting such as that entered in
this case is a continuance by order of the court. On its
face it is nothing more than a calendaring order which
could be entered by the clerk of the district court upon
advice from the visiting judge as to the dates that he would
be available. Certainly the docket entries in this case do
not reflect any oral order of the court which could serve
as a basis for concluding that there was any continuance
intended.

A legal fiction is an “Assumption of fact made by court
as basis for deciding a legal question. A situation con-
trived by the law to permit a court to dispose of a matter,
though it need not be created improperly; e.g. fiction of
lost grant as basis for title by adverse possession.” Black’s
Law Dictionary, p. 804 (5th Ed. 1979). Iam satisfied that
in this instance the majority has structured a legal fiction
to permit the significant issue on the merits to be reached.
In so doing the effect of an amendment of this rule to take
away the power of the parties to stipulate to the extension
of time for disposition of such a motion either forthrightly
or by inference has been sidestepped very neatly.

I regret that the district courts have been encouraged
by this decision to not deal definitively with such matters.
While perhaps some responsibility must be cast upon coun-
sel to be sure that their appeals are not lost through inad-

App. 63

vertence, in the efficient administration of the business of
the court the district judge has a responsibility for either
disposing of such motions or entering a clear order con-
tinuing the disposition for not more than 30 days. It oc-
curs to me that, based upon the state of the visiting judge’s
calendar, the clerk in this instance could have as easily
set the hearing for some day more than £0 days after the
filing of the motion, and I do not believe that a legal fie-
tion could have been developed to save the matter in that
instance. I do agree with Chief Justice Rose’s thought
that the continuance of the disposition of such a motion
is a matter of judicial discretion which should not in any
manner be delegated to the office of the clerk of the dis-
trict court.

I do have another regret which I will state. During
the years that I have been privileged to serve on this court
we previously have dismissed appeals because of an un-
timely notice in circumstances very similar to and certainly
analogous to these. I would suppose that every one of
those appeals could have been saved by the imposition of
some style of legal fiction similar to that invoked here.
Yet, if our rules of procedure are sufficiently plastic to
permit their adjustment by the imposition of legal fictions
then it seems to me they become guidelines only, not rules.
As such, their utility would be substantially undermined.

ROSE, Chief Justice, dissenting.

Had I been writing for the majority, I would have
found that this court does not have jurisdiction to entertain
this appeal and therefore would have affirmed.

Following the perfection of the appeal in this case, we
discovered a possible jurisdictional defect, and, at oral
argument, we asked the parties to submit additional briefs

}

App. 64

addressing our concerns. Given the provisions of Rule
59(f), W. R.C. P.,' we questioned whether the appellant’s
notice of appeal was timely. The following describes the
sequence of events that gives rise to the problem:

Judgment Entered 4-27-81
Rule 59 Motion Filed 5-05-81
Notice of Setting For 5-22-81
Hearing on Motion? (set for 6-29-81)
Rule 60 Motion Filed 6-22-81
Hearing on Motions 6-29-81
Order Denying Motions Entered 7-10-81
Notice of Appeal Filed 7-23-81

According to Rule 59(f), W. R.C. P., motions for new
trial are deemed denied if not decided within 60 days of
the entry of the judgment, unless a continuance is granted
“by order of the court” (emphasis added) allowing as much
as an additional 30 days within which to determine the
issue raised by the motion. Under this rule, appellant’s

1The operative language of Rule 59 (f), W. R. C. P. is:

“Motions for new trial or to alter or amend a judgment;
time limit.—Motions for new trial and motions to alter or
amend a judgment shall be determined within sixty (60)
days after the entry of the judgment, and if not so deter-
mined shall be deemed denied, unless within such sixty
(60) days the determination is continued by order of the
court but a continuance shall not extend the time to a day
more than 90 days from the date of entry of judgment.”
(Emphasis added.)

?The record reflects the following Notice of Setting entry
by the clerk of court:

“PURSUANT TO ORDER made upon The Court’s own Mo-
tion in the above case, notice is hereby given that Monday
the 29 day of June 1981 at 5:30 P.M. has been set for
Hearing of all of Defendants’ Motions, * * *.”

App. 65

motion for a new trial must be deemed denied by opera-
tion of law on June 26, 1981, unless the clerk of court’s
“Notice of Setting”, which set the date for hearing argu-
ment upon the Rule 59 new trial and Rule 60(b) motions
three days past the June 26 date, amounted to an “order
of the court” granting the permitted extension for ruling
on the motion for a new trial. If this is the effect of the
clerk’s “Notice of Setting”, then appellant’s appeal from
the judgment was timely filed. If this is not the effect of
the clerk’s entry, then the notice of appeal was late and
this court lacks jurisdiction to consider the appeal on its
merits.’

We are faced with this dilemma: In order to hold for
the appellant’s position that the “Notice of Setting” is suf-
ficient to comply with 59(f) time-extension provision, we
must be able to say:

3We said in Rutledge v. VonFeldt, Wyo., 564 P. 2d 350 at
351-352:

“Without a timely noiice of appeal from the judgment,
we are without jurisdiction. Jackson v. State, Wyo., 547
P. 2d 1203; Wyoming Farm Bureau Mutual Insurance Com-
pany v. Vannelli, Wyo., 370 P. 2d 738; Spencer v. Pringle,
51 Wyo. 352, 67 P.2d 204; Fertile Valley Canal Co. v.
Kearney, 37 Wyo. 475, 263 P. 620; Culbertson v. Ainsworth,
26 Wyo. 214, 181 P. 418; Hahn v. Citizens’ State Bank, 25
Wyo. 467, 171 P. 889, reh. den. 25 Wyo. 467, 172 P. 2d
705; Financial Management Corp. v. Wyoming Electric
Sign Co., supra; Bosler v. Morad, Wyo., 555 P. 2d 567;
Bard Ranches, Inc. v. Weber, Wyo., 538 P. 2d 24, reh. den.,
Matter of Final Proofs of Appropriation of Following Water
na Wyo., 541 P.2d 791; and Bowman v. Worland
School Dist., Wyo., 531 P. 2d 889.

“Even though these jurisdictional deficiences were not
called to our attention by the parties, it was, nevertheless,
our unhappy obligation to call them up ourselves. Jack-
son v. State, supra, and authorities therein contained.”

App. 66

1. The “Notice of Setting” for hearing argument on
appellant’s motion for a new trial is actually an order
extending the time limitation within which the court
por decide the motion for a new trial under Rule 59(f),
an

2. If that is what the “Notice of Setting” really is—
an order extending the time within which the court
will be permitted to decide the motion for a new trial
—then we must be able to decide that the clerk of the
court has the power and authority to make and enter
such an order, i.e.—assuming, arguendo, the “Notice
of Setting” was made on the court’s motion and was
intended to serve as an order extending the time with-
in which the court could decide the motion for a new
trial under 59(f), we must then ask whether the clerk
of court’s “Notice of Setting” can be said to be an
“order of the court” as required by Rule 59(1),

My review of the question forces me to conclude that
the clerk of court’s “Notice of Setting” did not and could
not have the effect of granting the extension contemplated
by the provisions of Rule 59(f). This means that under
our rules and opinions interpreting them, we cannot reach
any issues on appeal except that which concerns the trial
court’s denial of appellant’s Rule 60(b) motion.’

As noted earlier, Rule 59(f), W. R. C. P. authorizes the
granting of a continuance of up to 30 days past the orig-
inal 60 days from the entry of judgment during which addi-
tional time the trial court is permitted to rule on the mo-

‘The Rule 60 (b) issue is before us since an order on this
motion is final an pealable. However, Rule 60 (b) motions
do not extend the time limit for appeal, and appellants are
thereby precluded from attacking the underlying judgment.
Thus, any issues involving the merits of this case were not pre-
served for our review by reason of the 60 (b) motion, :
McBride v, McBride, Wyo., 598 P, 2d 814 (1979); Kennedy v.
Kennedy, Wyo., 483 P. 2d 516 (1971),

App. 67

tion, The language of the rule makes clear that the exten-
sion can only be granted by “order of the court.” In other
words, the extension-granting decision is a discretionary
matter with the court. The purpose of subdivision (f) of
Rule 59 is to expedite court business, and to insure the
finality of judgments. See a discussion of this subject in
Board of Commissioners v. Casper National Bank, 55 Wyo.
144, 96 P, 2d 564 (1939), rev. on other grounds, 105 P, 2d
578 (1940). We have held that the provisions of subdivi-
sion (f) are jurisdictional and the extension requirements
must be complied with or the judgment becomes final at
the end of 60 days, Furthermore, a written order by the
court cannot extend the time limitation after the motion
has been deemed denied by operation of law. Johnson v.
Hauffe, Wyo., 567 P. 2d 735 (1977); MeMullen v. MeMul-
len, Wyo., 559 P. 2d 37 (1977); Sun Land & Cattle Co, v.
Brown, Wyo., 387 P. 2d 1004 (1964),’

Is a “Notice of Setting” an order—and if it is an
order, is it an order extending time within which to
decide the motion for a new trial—or is it an order
ome the time for argument on the motion—or is it

oth

I have heretofore noted the entry made by the clerk
of the court at n,2, supra, On its face, the clerk’s entry
purports to set the motion hearing beyond the 60-day dead-
line conceived by Rule 59(f), Other than this, the record
reflects no action by the trial judge with respect to the

‘it is important to note that the cases above dealt with
Rule 59 or its progeny, when the rule provided not only that an
extension could be granted by order of the court, but also by
stipulation of the parties. Under the present Rule 59 structure,
an extension can only be sags by order of the court.
(Amendment, April 12, 1978.

App. 68

granting or denying of an extension of time within which
to rule on appellant’s new-trial motion. Nothing in the
record verifies the notion that the “Notice of Setting” ex-
tending the time past the 60-day limit was entered by
authority of the trial judge. Even if it could be shown
that the “Notice of Setting” has been entered by the clerk
upon the motion of the trial judge, there is still no record
indication that the entry was intended to be an order ex-
tending the time within which the motion for a new trial
could be decided as contemplated by Rule 59(f), It cer-
tainly does not say that this is what the person who au-
thorized the writing intended, All the “Notice of Setting”
says is that the argument on the motion for a new trial will
be heard by the court on the 29th of June, 1981, at 5:30
p.m. It appears to be a ministerial entry by the clerk of
the court—perhaps at the behest of the judge—telling at-
torneys when the judge will be available to hear arguments
on the motions. It does not purport to say—at least on
its face—that the judge has exercised his discretion with
respect to whether or not he will extend the time within
which he will make a decision on the granting or denial
of a new-trial motion.

For the judge to say to the clerk of court,
“Tell the lawyers to be here next Tuesday to argue
their motions,”
seems to indeed impose upon the clerk a ministerial task,
But should the judge say to the clerk,

“You decide whether or not we should grant the ap-
pellant additional time within which the motion for
a new trial will be heard, failing which it will be
deemed denied,” —

this sounds like the clerk is being delegated the court’s
discretion.

App. 69

In view of the authorities that I will refer to hereafter.
it must be assumed that the entry by the clerk was a minis-
terial task and did not—because it could not—involve ju-
dicial discretion. This assumption leads to the conclusion
that the entry was what it appears to be—a ministerial act
which told lawyers when to appear to argue the motions
and was not an exercise of such judicial discretion as would
be necessary in deciding whether or not the court would
grant a motion to extend the time for deciding the new
trial issue under Rule 59(f).

If the clerk’s entry is an order extending the time
for purposes of Rule 59(f), is it an “order of the court”
—or is it just aclerk’s order? And if it is the former
is the clerk authorized to make such an order?

Various Wyoming statutes describe the duties of clerks
of court, none of which suggest that a clerk has the power
to issue orders of the court. Section 5-3-202, W.S. 1977
describes the duties of a district court clerk as follows:

“Each clerk of the district court shall keep and make
up the records and books of the court of his particular
county, receive all cases filed therein, properly record
and attend to the same, and shall have the care and
custody of all the records, seal, books, papers and
property pertaining to his said office or the court of
the county for which he is elected and which may be
filed or deposited therein, and shall receive, account
for and pay over all money that may come into pos-
session of the court according to law, and under the
orders or decrees of the court, * * *.”

Section 5-7-101, W.S. 1977 states in general terms:

“The clerk of each of the courts shall exercise the
powers conferred and perform the duties enjoined
upon him by statute and by the common law; and in
the performance of his duties he shall be under the
direction of his court.”

App. 70

These statutes clearly contemplate that the function
served by a clerk of court is that of an administrative offi-
cer of the court whose duty it is to perform ministerial
tasks.

The general rule is said to be:

“Tn as much as a clerk of court is essentially a minis-
terial officer, as is stated in § 1 of this Title, he cannot,
without express constitutional or statutory authority
to that effect, exercise any judicial functions, and the
court, it has been held, has no power, in the absence
of statutory authority, to delegate such matters to the
clerk, although the clerk may properly perform acts
which are classified as ministerial.” (Emphasis added.)
14 C. J.S. Clerks of Court, § 35.

The rule was reiterated in Corbin v. State ex rel.
Slaughter, Fla. App., 324 8. 2d 203 (1975), where the~wourt
held a clerk of court is a ministerial officer who does not
exercise discretion in performing most of his services.
This general rule regarding the powers and the functions
of the clerk of court has been reiterated in numerous cases.
For example, in Sabbe v. Wayne County, 322 Mich. 501, 33
N. W. 2d 921 (1948) the court said:

“We have held that the duties and functions of county
clerks are purely ministerial and that judicial functions
cannot be performed by court clerks, nor may the
power to do so be conferred upon them. People v.
Colleton, 59 Mich. 573, 26 N. W. 771; Wilson v. Genesee
Cireuit Judge, 87 Mich. 493, 49 N. W. 869, 24 Am. St.
Rep. 173; Thoms v. Recorder’s Court Judge, 237 Mich.
413, 212 N. W. 69.” 33 N. W. 2d at 922.

See also, Bertagnolli Bros. v. Bertagnolli, 23 Wyo. 228, 148
P. 374 (1915) and Kimbel v. Osborn, 61 Wyo. 89, 156 P.
2d 279 (1945).

App. 71

What is an “Order of the court”?
It has been said:

“An ‘order of court’ has been defined as one made in
open court by a judge of the court who is present at
the place designated for the transaction of judicial
business and there assumes to transact such business.
A ‘judge’s order’ has been defined as one made by a
judge at chambers or out of court. Under some stat-
utes the distinction between court orders and judge’s
orders has been abolished, at least with respect to
certain courts.” (Footnotes omitted.) 60 C.J.S. Mo-
tions & Orders, § 2(b).

Another definition says:

“An ‘order’ of a court has been defined as the judg-
ment or conlusion [sie] of a court by which affirma-
tive relief is granted or denied on a motion or a spe-
cial proceeding. The word has been defined at greater
length as a decision made during the progress of a
cause, either before or after final judgment, settling
some point of practice or some question collateral to
the main issue presented by the pleadings that must
be disposed of before the main issue can be passed
on by the court or that must be determined for the pur-
pose of carrying into execution the final judgment.
Although ‘order’ has been statutorily defined as being
every direction of a court or judge made in writing
and not included in a judgment, the word ordinarily
connotes not only an order reduced to writing but also
any verbal command, direction, order of the court made
during the course of a trial.” 56 Am. Jur. 2d, Motions,
Rules, and Orders § 3 (1971) and the cases cited there-
in.

Accordingly, courts construing the term “order of the
court” have said that the phrase implies affirmative action
by the judge which is specific and limited in its applica-
tion. Loomans v. Milwaukee Mutual Insurance Co., 38

App. 72

Wis. 2d 656, 158 N. W. 2d 318, 321 (1968); Aetna Casualty
& Surety Co. v. Sampley, 108 Ga. App. 617, 134 S. B. 2d
71, 74 (1963); Puckett v. Swift & Company, Mo. App. 229
8. W. 2d 713, 717 (1950). The above authorities make clear
that the phrase “order of the court”, as utilized in Rule
59(f), contemplates some affirmative record action by the
trial court, in order that a continuance will be said to have
been granted.

In State v. Dickson, 53 Wis. 532, 198 N.W. 2d 17
(1972) the court said:

“In the instant case, there was no order of the court
which could have been disobeyed. The record shows
that Judge Traeger relied upon the document bearing
the caption, ‘Cireuit Court Chambers,’ and rubber
stamped with the name of the clerk of court. A di-
rection issued by the clerk is not an order of the court
in the sense used in legal procedures. Section 269.27,
Stats., makes it clear that orders issued ‘out of court’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0183%3A2. Public record. Not legal advice.