Appendix — Cooney v. White

Supreme Court brief1991

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IN THE a Te

SUPREME COURT OF THE UNITED STATES

October Term, 1990

THOMAS RUSSELL COONEY AND

LORA JOHN COONEY,

Petitioners,

V o

CHRIS J. WHITE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE WYOMING SUPREME COURT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Bruce R. Toole Sylvia Lee Hackl

Crowley, Haughey, Senior Assistant Attorney

Hanson, Toole & Dietrich General

P.O. Box 2529 Wyoming Attorney General's

Billings, Montana 59103-2529 Office

Telephone: (406) 252-3441 123 Capitol Building

Attorney for Petitioner Cheyenne, Wyoming 82002

Telephone: (307) 777-6886

Attorney for Respondent

TABLE OF CONTENTS

November 4, 1985 Opinion of

John T. Dixon, Park ne

District Judge ;

April 18, 1990 Opinion of

Supreme Court, State of Wyoming

Page

Fifty Jodicial District

JOHN T. CIXON, woes WAMOA M. BAKER EJ. ERICKSON, saronres

COOY wrOsmes Gis SOO RMIT eT COST wrOnsed apets

November 4, 1987

Lawrence B. Cozzens

George L. Simonton

William R. Shelledy, Jr.

RE: Cooney v. Park County

Park County Civil No. 15544

Counsel:

Plaintiffs bring this action seeking to

recover damages for certain actions taken in

the attempted revocation of the probation of

Plaintiff Thomas Russell Cooney. Plaintiffs

allege six causes of action under 42 U.S.C.

§ 1983 and the Wyoming Governmental Claims

Act, W.S. § 1-39-101(1977)(1987 Cum.Supp.),

et seq. All of the Defendants have filed

motions to dismiss, pursuant to Rule

12(b)(6), W.R.C.P.

The procedural rules for a motion to

= ————dlidll

dismiss for failure to state a claim are

well recognized. The allegations in the

Complaint are accepted as true and must be

viewed in the light most favorable to the

Plaintiff. Gates v. Richardson, 719 P.2d

193, 194 (Wyo. 1986); Moxley v. Laramie

Builders, Inc., 600 P.2d 733, 734 (Wyo.

1979). Motions to dismiss will be sparingly

granted and only when it is clear that

Plaintiff can prove no set of facts which

would entitle him to relief. Johnson v.

Aetna Casualty & Surety Co., 608 P.2d 1299,

1302 (Wyo. 1980), appeal dismissed and cert.

denied, 454 U.S. 1118, 102 S.Ct. 961, 71

L.Ed.2d 105 (1981).

The Court will first consider

Plaintiff's 42 U.S.C. § 1983 claim against

the Defendants. Section 1983 provides:

"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 subjected, any citizen of

the United States or other person

within the jurisdiction thereof to the

deprivation of any rights, privileges

or igmunateos secured by the

Constitution and laws, shall be liable

to the party injured in an action at

law, suit in equity, or other proper

proceeding for redress.

xx &®

The § 1983 claim against the individual

Defendants, Chris White and Robert Mayor,

are based on their actions as Deputy County

Attorney and as a probation officer,

respectively.

The operative allegations of the

Complaint are that the Plaintiff was placed

on probation; he fully complied with the

requirements imposed on him; that, due to

the negligence of his original probation

agent, it was believed that he had not

complied with those requirements. Defendant

Mayor advised Defendant White that the

Plaintiff had not complied with the

requirements of reporting to his assigned

probation agent and had changed residences

without prior approval. Based on this

information, Defendant White requested and

directed Defendant Mayor to prepare a

Revocation of Probation Petition on the

Plaintiff. Prior to its filing, Mr. Mayor

was informed of the true facts and reported

them to Mr. White, who again directed

Mr. Mayor to file a Revocation Petition on

the Plaintiff. Plaintiff asserts, and this

Court treats as true, that Defendant Mayor

prepared a false petition, under oath,

knowing it to be false and that Defendant

White caused the petition to be filed with

the Court also knowing at the time that it

was false, pursuant to which a Bench Warrant

was issued and the Plaintiff incarcerated

for a substantial period of time pending a

hearing on the petition. From these

allegations, Plaintiffs assert a cause of

action under § 1983.

With respect to Defendant White's

motion to dismiss, any discussion of

liability under 42 U.S.C. § 1983 must begin

with Imbler v. Pachtman, 424 U.S. 409, 96

S.Ct. 984, 47 L.Ed.2d 128 (1976). Although

§ 1983 is phrased in absolute terms, the

U.S. Supreme Court early on recognized

exceptions to general liability. Immunity

from § 1983 iiability was granted to state

legislators in Tenney v. Brandhove, 341 U.S.

367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951),

where the court concluded that immunities

"well-grounded in history and reason" were

maintained notwithstanding the general

language of § 1983. 341 U.S. at 376, 95

L.Ed. at 1019. Total judicial immunity for

"acts committed within their jurisdiction"

was recognized by the court for judges in

Pierson v. Ray, 386 U.S. 547, 554-555 87

S.Ct. 1213, 18 L.Ed.2d 288, 294-295 (1967).

Other cases followed, and in Imbler, supra,

the court recognized immunity for

prosecutors, at least in certain

circumstances. In Imbler, the plaintiff

sought to impose § 1983 liability on the

state prosecutor who had obtained

plaintiff's conviction in state court.

Plaintiff asserted that the prosecutor had

knowingly or negligently permitted witnesses

to give false testimony, was chargeable for

the state's suppression of favorable

evidence, and had participated in the

altering of evidence used at trial and had

otherwise engaged in a conspiracy to convict

the plaintiff. In holding the prosecutor

immune under the allegations made in

plaintiff's complaint, the U.S. Supreme

Court stated:

"We agree with the Court of Appeals

that respondent's activities were

intimately associated with the judicial

phase of the criminal process, and thus

were functions to which the reasons for

absolute immunity apply with full

force. 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. We hold only that in

initiating a prosecution and in

presenting the State's case, the

prosecutor is immune from a civil suit

for damages under § 1983." (Footnotes

omitted ) 424 U.S. at 430-431, 96

S.Ct. 984, 47 L.Ed.2d at 143-144.

In determining that prosecutors had full

immunity for initiating and presenting the

State's case, the Court focused on several

factors which it felt mandated the result:

the impact of potential civil liability

under § 1983 could not but cause even the

most dedicated prosecutor to shade his

decisions as to whom to prosecute; this

potential liability would deflect the

criminal justice system away from its

mandated path, the determination of guilt or

innocence, to a path of only subjecting

those individuals who are clearly guilty to

Criminal sanctions; a prosecutor subject to

Civil liability based on his professional

judgment in bringing a criminal action will

pause and consider more than just the

public's interest in seeing the guilty

punished and the innocent set free; when

such extraneous factors are included in the

formula of whom to prosecute and whom not

to, society suffers through a less efficient

and equitable criminal justice system; some

difficult cases will be left unprosecuted

for fear of a failure to convict and the

resultant civil liability.

The Wyoming Supreme Court has also had

the opportunity to rule on the issue of

prosecutorial immunity in Blake v. Rupe, 651

P.2d 1096 (Wyo. 1982), cert. denied 459 U.S.

1208, 103 S.Ct. 1199, 75 L.Ed.2d 442 (1983).

Although not decided under § 1983, the

Court's comments on prosecutorial immunity

in Blake appear to be applicable to the

present situation. In determining when and

whether immunity applied, the Wyoming

Supreme Court focused on a functional test.

If the prosecutor's actions were within the

perimeter of the "quasi-judicial function"

of the office of the prosecutor, then

absolute immunity would attach. The Wyoming

Court appears to have applied a broad

definition to the term "quasi-judicial

function" to adequately protect those

interests identified in both Blake and

Imbler as protected by prosecutorial

immunity. The Court held:

"/T/o 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 inquiry 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 investigation 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." 651

P.2d at 1105.

The Wyoming Supreme Court has, thus,

recognized immunity for prosecutors not only

for what occurs in the courtroom but also

for those actions taken by the prosecutor

which are necessary in bringing the case to

the courtroom.

In arguing that the previous

authorities do not apply to the present

factual circumstances, Plaintiffs cite

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Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct.

2593, 33 L.Ed.2d 484 (1972) and Gagnon v.

Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36

L.Ed.2d 656 (1973) for the proposition that

revocation of parole or probation is not a

part of a criminal prosecution. Plaintiffs’

argument is that since revocation is not a

part of a criminal prosecution, absolute

prosecutorial immunity does not apply.

Plaintiffs cite the following language from

Gagnon in support of their contention:

"Petitioner does not contend that there

is any difference relevant to the

guarantee of due process between the

revocation of parole and the revocation

of probation, nor do we perceive one.

Probation revocation, like parole

revocation, is not a stage of a

criminal prosecution, but does result

in a loss of liberty." 411 U.S. at

782, 36 L.Ed.2d at 662.

Plaintiffs' citation contains the seeds of

their argument's failure. Neither Morrissey

nor Gagnon dealt with prosecutorial immunity

but, rather, focused on what protections

were guaranteed to an individual under the

Due Process Clause, whose probation or

parole was subject to revocation. Whether

Or not revocation is a part of a criminal

prosecution for purposes of due process has

no bearing on whether the actions of a

prosecutor in bringing such an action are

covered by absolute immunity.

The only conclusion that the Court can

reach, based on the authorities cited, is

that the Plaintiffs' First Cause of Action,

based on § 1983, fails to state a claim

against Defendant White. The decision to

bring a revocation petition is one that

falls within the "quasi-judicial function"

of a prosecutor and, thus, total immunity

and not merely a qualified or limited

immunity exists.

The next question is whether the First

insta! a vaneeaailll

Cause of Action states a claim against

Defendant Robert Mayor. While this

Defendant's brief does discuss the issue of

immunity, it does so only with regard to

Causes Two through Six and the Wyoming

Governmental Claims Act. Those issues will

be discussed infra, but it must be noted

that whether or not Defendant Mayor may be

immune to liability under the Wyoming

Governmental Claims Act is of no bearing on

the question of his liability under § 1983.

The case law of absolute vs. qualified

immunity for individuals involved in the

judicial process has blossomed in recent

years, since the U.S. Supreme Court's

division in Imbler, supra. A multitude of

lawsuits have been filed against various

officials concerned with the attempted

prosecution/conviction of those individuals

charged with violations of criminal

statutes. From the cases decided, it

appears that probation officers will be

granted absolute immunity for certain

actions, while only a qualified immunity

will apply for other actions. Two recent

federal decisions have discussed the

question of immunity for probation officials

in relation to their preparation of pre-

dispositional reports ordered by a court.

In both, Weseman v. Meeker County, 659

F.Supp. 1571 (D.Minn. 1987) and Demoran v.

Witt, 781 F.2d 155 (9th Cir. 1986), the

courts held that absolute immunity applied.

Plaintiff, in Demoran, asserted that the

defendant, a probation officer, by filing an

erroneous presentencing report, was liable

under § 1983. In Weseman, Plaintiffs

attacked the actions of a probation officer

in a juvenile proceeding. The officer had

investigated and reported to the court on

several occasions the status of the juvenile

and her family. In both of these cases, the

Court focused on the fact that the probation

officer, in preparing his reports, was,

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acting at the direction of the court. The

court, in Weseman, stated:

"Johnson's investigations and reports

concerning Weseman are directly

analogous to a probation officer's

investigations and reports concerning a

criminal defendant prior to sentencing.

Numerous courts have held probation

officers to be absolutely immune from

suit regarding their activities in

preparing and submitting presentence

investigation (PSI) reports. See

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

1986); Spaulding v. Nielsen, 599 F.2d

728 (5th Cir. 1979); Crosby-Bey v.

Jansson, 586 F.Supp. 96 (D.D.C. 1984);

see also Meyers, 810 F.2d at 1467.

When preparing and submitting the PSI

report, a probation officer serves as

the court's eyes and ears and must

exercise discretion in conducting his

investigation and making his

recommendations, without fear of

subsequent civil liability. Crosby-

Bey, 586 F.Supp. at 99. Absolute

immunity is afforded to a probation

officer even when it is alleged the

officer acted with malice or in bad

faith in investigating or preparing the

report. Demoran, 781 F.2d at 158.

"The Court is persuaded and holds that

Johnson's actions in investigating and

reporting on Weseman are the actual and

functional equivalent of a probation

officer's duties in preparing and sub-

mitting a PSI report. Johnson, in his

duties, was performing an adjudicative

function in aid of the Court in its

judicial function. The Court then

finds that Johnson is immune from suit.

659 F. Supp. at 1577-1578. (Footnotes

omitted).

The court in Weseman thus considered

the most significant factor to be that the

probation officer was operating, at the

times in question, as directed by the court,

"serving as its eyes and ears." Since the

officer was thus acting during the times

complained of by the plaintiff, the officer

was acting in an adjudicatory mode and

entitled to absolute judicial immunity.

The other side of the coin is

represented by cases such as Randle v. City

and County of San Francisco, 186 Cal.App.3d

462, 230 Cal.Rptr. 901 (1986). In Randle,

the plaintiff was convicted of rape, which

was overturned on appeal because of newly-

discovered evidence that discredited the

testimony of the complaining witness.

Randle was not reprosecuted and thereafter

brought § 1983 charges against both the

prosecutor and police inspector involved in

his criminal trial. Plaintiff asserted that

both the prosecutor and the police inspector

were aware of the evidence for which his

conviction was overturned but did not

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disclose it at trial to the plaintiff in

spite of a standing discovery order relating

to exculpatory evidence. The appellate

court held that the prosecutor was

absolutely immune from suit under § 1983 for

the actions complained of but that the

police inspector did not share that absolute

immunity. In support of his contention that

he should have absolute immunity, Bastiani,

the police inspector, relied on Imbler v.

Pachtman, supra, and Briscoe v. LaHue, 460

U.S. 325, 103 S.Ct. 1103, 75 L.Fd.2d 96

(1983). As has been noted previously,

Imbler, relates to prosecutorial immunity

for actions closely related to the

initiation and presentation of the State's

case. Briscoe extended the absolute

immunity of witnesses at a criminal trial to

police officials and their testimony. The

court, in Randle, held that neither of these

cases extended absolute immunity to the

police officer for the challenged actions in

tanta ni 2 Vie Bares Mimi et

that case.

"To say that a police officer

performing the acts alleged in the

present case is functionally equivalent

to a prosecutor, however, would ex-

tend immunity to an official who does

not occupy the public trust of the

prosecutor's office and is neither

authorized to make the discretionary

decisions involved in presenting the

state's case in court nor urder any

duty as an officer of the court.

Because of the unique office of the

public prosecutor in preparing and

presenting a case for trial, a police

officer simply cannot be regarded as

functionally equivalent to a prosecutor

in the same way a police officer

witness is equivalent to other

witnesses, (cf., Briscoe, supra, 460

U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d

96) or a prosecutor in certain roles is

equivalent to a police officer. (Cf.

Imbler, supra, 424 U.S. at pp. 430-431,

96 S.Ct. at pp. 994-995). Although a

police officer may be active in a

prosecution, the activity is of an

investigatory nature rather than being

an ‘integral part of the judicial

process.' (Imbler, supra, 424 U.S. at

p. 430, 96 S.Ct. at p. 994.) Indeed,

the Sixth Circuit has held that a law

enforcement officer active ina

prosecution may be liable in a § 1983

suit for suppression of evidence even

though the prosecutor may not.

(Hilliard v. Williams, (6th Cir.1976)

540 F.2d 220.) 186 Cal. App.3d at 461-

462; 230 Cal.Rptr. at 909. (Foot-

notes omitted)

The same result was reached by the Wyoming

Supreme Court in Blake v. Rupe, supra, 651

P.2d at 1107-1110, although not specifically

dealing with a § 1983 claim.

The distinction to be made, then, is

whether the probation officer was

investigating as the “eyes and ears of the

court" or the “eyes and ears of the

prosecutor," with the former being subject

to absolute immunity and the latter to only

a qualified immunity. Approached

functionally, the parole agent preparing a

presentence report is assisting in the

adjudication function of the Judge, whereas

the same agent in investigating the status

of a paroled defendant is functioning more

as a police investigator.

The Court must conclude in this

instance the actions complained of by

Plaintiffs as they relate to Defendant Mayor

were not part of the adjudicatory process

but, rather, are similar and comparable to

the investigative functions of police

officers and the subject of only a qualified

immunity. Thus, Defendant Mayor's motion to

dismiss the § 1983 claim as to him must be

denied.

The other claims against the individual

Defendants depend on the proper

interpretation of the Wyoming Governmental

Claims Act, W.S. § 1-39-101 (1977)(1987

Cum.Supp.) et seq. W.S. § 1-39-104(a)

provides in relevant part:

. "A governmental entity and its public

employees while acting within the scope

of duties are granted immunity from

liability for any tort except as pro-

vided by W.S. 1-39-105 through

1-39-112. * * *," |

The other relevant statute is w.s.

§ 1-39-112 (1977)(1987 Cum. Supp.), which

states:

"A governmental entity is liable for

damages resulting from tortious conduct

of peace officers while acting within

the scope of their duties."

This section was changed recently. Prior to

March 18, 1986, instead of "peace officers,"

the statute contained the term "law

enforcement officers." Plaintiffs contend

that the previous wording of the statute is

applicable since the complained-of activity

occurred prior to March 18, 1986.

The liability of Defendant Mayor is

clearly governed by the Wyoming Supreme

Court decision in Hurst v. State, 698 P.2d

1130 (Wyo. 1985). In that case, plaintiff

sought to establish liability of the State

of Wyoming and various State Board of Parole

Employees for the act of releasing an

individual onto parole who subsequently

committed a number of crimes. After noting

that the term "law enforcement officer" was

not defined in the Wvoming Governmental

Claims Act, the Supreme Court cited Black's

Law Dictionary definitions for "law

enforcement officer" and "peace officer,"

the definition of "peace officer" contained

in W.S. § 7-2-101 (1977)(1984 Cum.Supp.),

and the definition of "law enforcement unit"

contained in W.S. § 9-3-190l(iv) (1977). The

court appeared to equate the terms "law

enforcement officer" and "peace officer,"

although it did not come out and directly so

hold. While the Court did note that parole |

(and probation) officers are granted

authority to make arrests in the performance

of their duties, W.S. § 7-13-411 (1977), it

held that they are not given other authority

that is traditionally associated with peace

officers and concluded by stating:

"Looking at the mischief that the

statute was designed to cure, the

legislature must have intended that

this statute create an exception from

immunity only for activities which come

within the province of traditional law

enforcement. Police officers have

tremendous power and authority to

interfere with the rights of citizens.

The logical inference is that the

legislature intended this abrogation of

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the common-law immunity as a safeguard

against misuse of this power by

providing citizens a broad remedy for

any tortious conduct causing damage.

"We hold, therefore, that this

particular cause of action cannot be

maintained because it does not fall

within an exception provided by the

Wyoming Governmental Claims Act. The

primary duties cf the parole board or

parole officer are confined to a small

group of persons after arrest,

conviction and often incarceration.

They ordinarily are not involyed in

keeping the peace as that term is

generally understood. The parole board

and the parole officers are not law

enforcement officers under the facts of

this case and are not subject to claim

or liability because of governmental

immunity. * * *." 698 P.2d p. 1134.

Clearly, Defendant Mayor is immune from

liability for the actions asserted in

Plaintiffs' Second through Sixth Cause of

Action under Hurst.

For many of the same reasons, this

Court concludes that Defendant white is also

immune from liability and is not a "law

enforcement officer" as used in § 1-39-112.

Words used in a statute are to be given

their plain and ordinary meaning unless

otherwise indicated. City of Evanston v.

Robinson, 702 P.2d 1283, 1289 (Wyo. 1985);

McArtor v. State, 699 P.2d 288, 292 (Wyo.

1985). None of the definitions cited by the

Court in Hurst, supra, for either "law

enforcement officer," "peace officer," or

"law enforcement unit" would include a

prosecuting attorney, nor does the plain and

ordinary meaning of the "law enforcement

officer" include such a meaning.

In arguing that a county prosecuting

attorney does come within the definition of

"law enforcement officer," Plaintiffs cite

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the history of § 1-39-112. As noted above,

in 1986 that section was changed with the

term “law enforcement officer" being

replaced, by "peace officer." Plaintiffs

further assert that the term "peace

officer," in § 1-39-112 will, in 1988,

revert back to “law enforcement officer."

From this history, Plaintiffs argue that the

legislature has differentiated between the

two terms, with "law enforcement officer"

being a more encompassing one, one which

would include a prosecuting attorney. The

Court cannot agree with Plaintiffs' reading

of the legislature's intent. The change

made in 1986 in § 1-39-112 by the

legislature was part and parcel of the

legislature's creation of a self-insurance

fund to pay claims arising from the Wyoming

Governmental Claims Act. See Session Laws

of Wyoming, 1986, Ch. 74. In so doing, they

changed “law enforcement officer" to "peace

officer" not only in § 1-39-112 but also in

§ 1-39-103 and as subsection (a)(iii) added

that "'Peace officer' means as defined by

W.S. 7-2-101." In light of the then-

existing decision of the Wyoming Supreme

Court in Hurst, it is clear that the legis-

lature agreed with the Court's finding in

that case that parole agents were not "law

enforcement officers" and that the correct

definition of that term, being synonymous

with "peace officer" was to be found in

§ 7-2-101. The fact that "peace officer"

may revert back to "law enforcement officer"

on June 30, 1988 is nothing more than the

result of the expiration of the state's

self-insurance provisions and does not

indicate an intent by the legislature to

differentiate between the two terms.

Rather, a much more consistent and

reasonable explanation of the legis-

lature's intent was an agreement with the

Court that "law enforcement officer" was not

defined in the statutes, "peace officer" was

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already defined therein, the two were

synonymous, and an intent to "clean-up" the

statutes by the use of only one such term.

For the above-stated reasons, the Court

concludes that a county prosecutor does not

come within the definition of a "law

enforcement officer," nor does that of a

probation officer and, therefore, the waiver

of governmental immunity contained in w.s.

§ 1-39-112 is inapplicable. Since

governmental immunity has not been waived,

Plaintiffs' causes of action Two through Six

as to the individual Defendants must be

dismissed. .

The Court now comes to the arguments of

the various agencies also named as

Defendants. First, it is now clear that

there is no basis for liability on the part

of Park County. The only allegations which

apply to this Defendant relate to the

actions of Defendant White as Deputy County

and Prosecuting Attorney. The confusion as

to Park County's liability, if any, for the

actions of Defendant White lie in the fact

that as a Deputy County Attorney he, in

fact, occupies two separate and distinct

offices. To the extent that he is acting as

a prosecutor, he is acting on the behalf of

the State of Wyoming. Article 5, § 18,

Wyoming Constitution; W.S. §§ 18-3-302(b)

(1977) (1987 Cum.Supp.) and 9-1-804(1) (i)

(1977) (1987 Replacement Pamphlet). While

so acting, even though employed by the

county, the county is not liable for his

actions. Houtz v. Board of County

Commissioners of County of Uinta, 11 Wyo.

152, 70 P. 840, 844-845 (1902). The actions

taken by Defendant White were in the name of

and by the authority of the State of

Wyoming. Park County, as a body politic,

simply played no part in the actions taken

by the Deputy County Attorney and, thus,

there is no basis for liability on the part

of Park Coutny under § 1983.

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The liability of the State of Wyoming

and Wyoming Department of Probation and

Parole under § 1983 is not subject to

determination on the basis of a motion to

dismiss. The controlling case for these

claims is Monell v. Department of Social

Services of the City of New York, 436 U.S.

658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

The U.S. Supreme Court, in Monell, held that

local governmental entities could be subject

to liability under § 1983 when either policy

or custom of that body results ina

deprivation of constitutional rights. 436

U.S. at 690-691, 56 L.Ed.2d at 635. The

Wyoming Supreme Court recognized this fact

in Kimbley v. City of Green River, 663 P.2d

871, 883 (Wyo. 1983), where it stated:

"With respect to appellants' claim of |

deprivation of constitutional rights

pursuant to the Federal Civil Rights

Act, 42 U.S.C. § 1981, et seq., it is

now clear that the state and munic-

vi | :

ipalities, including counties, are

within its sweep and treated as natural

'persons,' though artificially so."

Again, the Wyoming Supreme Court noted that

liability is not based on the theory of

respondeat superior but only when the

execution of policy or custom of the

government results in deprivation of

constitutional rights. Id. at 884.

Plaintiffs have sufficiently pled a

cause of action against those Defendants

under § 1983 in that they have averred the

deprivation of their constitutional rights

was the result of policy or custom of the

Defendants. It is not the province of a

motion to dismiss for failure to state a

cause of action to delve into the factual

basis of a claim; rather, it is only to

determine whether a claim is adequately set |

forth. Rule 12(b)(6), W.R.C.P.; Mathews v.

Wyoming Department of Agriculture, 719 P.2d

216 (Wyo. 1986). Clearly, this is a case

which has not progressed to the stage where

it would be proper for this Court to treat

the motion to dismiss as one for summary

judgment. Pace v. Hadley, Slip Opinion No.

87-130, September 22, 1987.

Finally, there is the issue of punitive

damages under § 1983. From the U.S. Supreme

Court's decision in Newport v. Facts

Concerts, Inc., 453 U.S. 247, 101 §.Ct.

2748, 69 L.Ed.2d 616 (1981), it is clear

that while individual officials are liable

for punitive damages in an applicable

instance, governmental entities are not.

Therefore, punitive damages may not be

recovered from the State of Wyoming or the

Wyoming Department of Probation and Parole

but may be from Defendant Robert Mayor if

the proper elements are shown.

In summary, therefore, the Court finds

that all Defendants are entitled to a

dismissal of Plaintiffs' Second through

Sixth Causes of Actions; Defendant White is

entitled to a dismissal of all claims

against him; and Park County is entitled to

dismissal of all claims against it.

Plaintiffs' First Cause of Action states a

claim against Defendants Mayor, State of

Wyoming, and Wyoming Department of Probation

and Parole.

Counsel for Defendants shall prepare

the appropriate Order, submit it to opposing

counsel for approval as to form and, if op-

posing counsel makes no objections thereto

within five days after submission, then to

me for my signature with proof of date of

submission.

Very truly yours,

s/ John T. Dixon

John T. Dixon

District Judge

JTD:dh

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IN THE SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 1990

April 18, 1990

THOMAS RUSSELL COONEY and LORA

JOHN COONEY,

Appellants

(Plaintiffs),

Ve. No. 88-174

OF WYOMING; THE WYOMING DEPART-

MENT OF PROBATION AND PAROLE;

CHRIS J. WHITE; and ROBERT

MAYOR,

)

PARK COUNTY, WYOMING; THE STATE )

)

Appellees )

(Defendants). )

Appeal from the District Court of Park County, the

Honorable John T. Dixon, Judge.

Lawrence B. Cozzens, Billings, Montana, for

appellants.

Joseph B. Meyer, Attorney General; Sylvia Lee Hackl,

Senior Assistant Attorney General, Cheyenne, for

appellee Chris J. White.

Edward G. Luhm of Scott, Shelledy & Luhm, Worland,

for appellees State of Wyoming, Department of

Probation and Parole, and Robert Mayor.

Before THOMAS, URBIGKIT, MACY, GOLDEN, JJ., and

GRANT, D.J.

GOLDEN, J., delivered the opinion of the court;

URBIGKIT, J., filed a dissenting opinion and MACY,

J., filed a dissenting opinion.

GOLDEN, Justice.

Appellants Thomas Russell Cooney and

Lora John Cooney (Cooneys) appeal from the

district court's W.R.C.P. 12(b)(6) dismissal

of their complaint against appellees Deputy

Park County Attorney Chris J. White, the

State of Wyoming, the Wyoming Department of

Probation and Parole (Department), and

probation officer Robert Mayor, (appellees)

alleging a civil rights claim under 42

U.S.C. § 1983 (1982), and various state

claims under the Wyoming Governmental Claims

Act, W.S 1-39-101 through 1-39-108

(Cum.Supp. 1985) (Claims act)?, arising out

of probation revocation proceedings. The

trial court dismissed all counts in the

Cooneys' complaint against White on the

basis that he, as a deputy county attorney,

had absolute prosecutorial immunity from

Civil liability. It further dismissed the

1 Their claims inciuded malicious prosecution, false

imprisonment, abuse of probation revocation

process, and intentional infliction of emotional

distress.

Cooneys'' counts alleging liability under

the Claims Act against the State of Wyoming,

the Wyoming Department of Probation and

Parole, and Robert Mayor, because it found

no waiver of immunity under the Claims Act

as to those parties.

The Cooneys challenge both of these

rulings. We are asked to decide (1) what

level of immunity under 42 U.S.C. § 1983

will we extend to a deputy county attorney

who performs activities associated with

those proceedings and (2) whether under the

Claims Act there has been a specific waiver

of sovereign immunity as to the state

claims.

We affirm.

; I. FACTS

In 1985, Thomas Cooney pled guilty to

writing bad checks in Park County, Wyoming.

The district court accepted his guilty plea

and sentenced him to five years of

supervised probation, which required him to

stay in regular contact with officers of the

Wyoming Department of Probation and Parole.

When sentenced, Mr. Cooney lived in

Riverton, Wyoming, where his parole officer

was Cindy Johnson. In September 1985,

Mr. Cooney requested permission from the

Department to move with his wife and child

to Baroil because of a change in his job.

Johnson granted Mr. Cooney permission to

move and told him that he would be contacted

by a Department officer in Rawlins for

continued supervision under the terms of his

sentence.

The Cooneys moved to Baroil in October

1985, and Johnson forwarded Thomas Cooney's

file to Tracy Reinke, a Department officer

in Rawlins. Unknown to the Cooneys, however,

Johnson erroneously advised Reinke that

Thomas Cooney and his family were now living

in La Barge, Wyoming, instead of Baroil.

Because of this erroneous advice, Reinke

returned the Cooney file to Johnson in

Riverton and instructed Johnson to forward

it to the Department office in Evanston,

Wyoming, the Department office with

jurisdiction over probationers living in La

Barge. On October 21, 1985, Johnson mailed

the Cooney file to the Department office in

Evanston where it was assigned to appellee

Robert Mayor. After receiving the file,

Mayor made unsuccessful attempts to locate

Mr. Cooney in La Barge because the Cooneys

were in Baroil.

In the meantime, Mr. Cooney, still

unaware of the Department's foul-ups,

contacted Johnson several times by telephone

inquiring about the contact he expected to

receive from a Department officer in

Rawlins. Based on those calls, Johrson filed

reports verifying Mr. Cooney's compliance

with the terms of his probation in October

and November of 1985. During December 1985,

Mr. Cooney telephoned the Department office

in Rawlins to contact Reinke about his

probation.

In mid-January, 1986, Mayor contacted

Johnson to inform her that he could not

locate Mr. Cooney in his area.

Unexplainably, Johnson told Mayor that Mr.

Cooney had relocated to La Barge, Wyoming,

in October 1985, and that she had not heard

from him since his move. This incorrect

information prompted Mayor on January 24,

1986, to call appellee Chris White, who was”

then deputy county attorney for Park County,

Wyoming; Mayor told White that Mr. Cooney

had not been in contact with his probation

officers as required by the terms of his

sentence and that he had moved from Riverton

without Department permission. White asked

Mayor to prepare a petition revoking

Mr. Cooney's probation.

On January 29, 1986, Johnson telephoned

Mayor and told him that the Cooneys lived in

Baroil, had permission from the Department

to be there, and that Mr. Cooney had been in

contact with her office during October and

November 1985. Mayor then telephoned White

and relayed those facts to him. Despite this

information, White reiterated his request

that Mayor draft the petition to revoke mr.

Cooney's probation. Mayor followed White's

instructions and prepared a document

entitled "Petition for Revocation of

Probation and Bench Warrant" dated January

29, 1986. In that document, and despite his

contrary knowledge, Mayor swore under oath

that Mr. Cooney changed his address without

the Department's permission and failed to

maintain contact with the Department after

he moved. Mayor then forwarded the petition

to White who presented it to the district

court. Based on the petition, the district

court issued a bench warrant for

Mr. Cooney's arrest on February 7, 1986.

On February 10, 1986, Mr. Cooney sent a

letter to Reinke in an effort to comply with

the terms of his probation. Similar contacts

between Mr. Cooney and Reinke occurred

during February and March 1986. In early

March, Mr. Cooney requested permission from

Reinke to move to Glasgow, Montana, to

accept permanent employment. On March 11,

1986, Reinke sent Mr. Cooney written

permission to move. Having received this

permission, the Cooneys packed their

belongings and prepared to move to Montana.

On March 15, 1986, a highway patrol officer

stopped Mr. Cooney, his wife, and child and

arrested him pursuant to the bench warrant

issued because of the information provided

to the district court by Mayor and white.

Mr. Cooney was taken to the Park County

jail; Mrs. Cooney and their child were left

stranded in Baroil with all of their

belongings.

Mr. Cooney remained in the Park County

jail until April 21, 1986, when the district

court released him after denying the

petition to revoke his probation. During his

incarceration White and Mayor did nothing to

inform the district court of their knowl ge

concerning Mr. Cooney's compliance with the

terms of his probation. They also did

nothing to help get Mr. Cooney out of jail.

In fact, during the time that Mr. Cooney was

incarcerated, an attorney with the Park

County Public Defender's office requested

that Mr. Cooney be released from jail until

a hearing could be held to determine the

accuracy of the information underlying the

arrest warrant. White refused to honor that

request.

After the Cooneys filed the necessary

claim@ under the Claims Act, they filed

2 The Cooneys commenced this action with a May 15,

1986, letter to appellee State of Wyoming as

mandated by the Claims Act. That letter claim was

filed on May 19, 1986, and denied by the State of

Wyoming on September 5, 1986. The Cooneys filed a

Claims Act claim against appellee Park County on

March 13, 1987. They filed the complaint in this

case on May 14, 1987. Appellees White and Park

County filed a W.R.C.P. 12(b)(6) motion and an

accompanying brief on June 15, 1987. By stipulation

of the parties, appellees the State of Wyoming, the

suit. The defendants responded with motions

to dismiss under W.R.C.P. 12(b)/6). The

district court granted the motions. The

Cooneys appealed.

II. ANALYSIS

Department, and Mayor filed their motion to dismiss

and supporting materials on July 15, 1987. The

Cooneys filed a brief in opposition to those

motions on July 30, 1987. The district court filed

its decision letter on the appellees' motions on

November 10, 1987, in which it dismissed all claims

against White and the Claims Act claims against

Park County, the State of Wyoming, the Department,

and Mayor for failure to state claims upon which

relief could be granted under W.R.C.P. 12(b)(6). A

corresponding order was filed on December 7, 1987.

The Cooneys then moved the district court to

finalize its order on the motions to dismiss under

W.R.C.P. 54(b) on December 15, 1987. The district

court gave the parties notice concerning this

motion and responses in opposition were filed by

appellees the State of Wyoming, the Department and

Mayor. The district court held a hearing on the

matter on January 13, 1988, after which it granted

the Cooneys' motion and entered an order to that

effect on January 25, 1988. The Cooneys appealed

that final order on February 1, 1988.

On its own motion, this court dismissed that

appeal because the district court's W.R.C.P. 54(b)

certification did not contain at least a brief

explanation for the district court's conclusion to

take that action. See Tader v. Tader, 737 P.2d 1065

(Wyo. 1987). On remand the Cooneys made a W.R.C.P.

60(a) motion for a revised order. A revised final

order was entered on June 7, 1988; this appeal was

taken from that order.

A. Standard of Review

When reviewing a W.R.C.P. 12(b) (6)

dismissal, we accept the facts alleged in

the complaint as true and view them more

favorably toward the party opposing the

motion below. Mummery v. Polk, 770 P.2d 241,

243 (Wyo. 1989). A motion under this rule

tests the legal sufficiency of the

complaint, should be granted sparingly by

the district courts and generally is not

favored on appeal. Id. We recognize that a

§ 1983 action should not be dismissed upon

the pleadings "unless it appears beyond

doubt that plaintiff can prove no set of

facts in support of his claim which would

entitle him to relief." Joseph v. Patterson,

795 F.2d 549, 551 (6th Cir. 1986) (citing

Conley v. Gibson, 355 U.S. 41, 45-46, 78

B. Absolute Immunity for White

1. Imbler and Blake

The district court dismissed the § 1983

claim against White under W.R.C.P. 12(b)(6)

wy ee

after ruling that White's status as a

prosecuting attorney made him absolutely

immune from suit, regardless of whether his

actions actually deprived Mr. Cooney of a

constitutional right, privilege, or

immunity. The district court relied on

Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct.

984, 47 L.Ed.2d 128 (1976) and this court's

application of Imbler in Blake v. Rupe, 651

P.2d 1096 (Wyo. 1982), cert. denied, 459

U.S. 1208, 103 S.Ct. 1199, 75 L.Ed. 2d 442

(1983). It interpreted both of those cases

as granting prosecutor White absolute

immunity from civil liability under 42

U.S.C. § 1983 for public policy reasons.*

3 Imbler identified those reasons as:

1) a prosecutor is more likely to be sued when he

decides, rather than declines, to prosecute; thus,

the desire to avoid liability would always slant a

prosecutor's conduct toward fewer prosecutions.

This result clashes with the prosecutor's public

duty to enforce the law vigorously;

2) the volume of potential lawsuits poses a serious

threat to a prosecutor's decision making. Each time

a prosecutor moves against an individual, he is

exposed to an identifiable potential plaintiff.

oe? Hore eS ee

The plain language of 42 U.S.C. §1983

is deceptively simple because it makes no

mention of immunity from liability.4 The

Conventional wisdom informs that, generally,

criminal defendants are unlikely to view

prosecutorial actions as having been taken in good

faith. Consequently, any overturned action could

generate a lawsuit. These damage claims against

prosecutors may drain a disproportionately large

amount of prosecutorial time--which would be better

spent serving the criminal justice system;

3) qualified professionals may choose not to serve in

the high-profile post of prosecutor because of an

increased likelihood of untoward influences on the

exercise of prosecutorial discretion and the

increased drain on prosecutorial time caused by

lawsuits;

4) prosecutors may be more reluctant to admit

weaknesses in their cases or to produce later

discovered exculpatory evidence. Appellate judges

may be more reluctant to reverse convictions if to

do so might spark damage suits; ‘

5) in-place judicial review mechanisms satisfactorily

operate to deter prosecutorial misconduct.

Moreover, prosecutors are subject to professional

discipline, formal removal proceedings and criminal

liability, and

6) reexamination in a 42 U.S.C. §1983 action of the

many prosecutorial decisions made under time and

information constraints would involve a retrying of

the criminal charge before a jury different from

the one who decidea the criminal charge and would

run the risk-of conflicting decisions.

4 42 U.S.C. $1983 provides:

appellate history of the provision, however,

reveals that its application necessarily

invokes traditional common-law defenses of

official immunity which extend absolute

immunity to prosecutors in certain

situations. Imbler, 424 U.S. at 418, 96

S.Ct. at 989, 47 L.Ed.2d at 136 (citing

Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct.

783, 95 L.Ed. 1019 (1951)). See also Yaselli _

v. Goff; 275 U.S. 503, 48 S.Ct. 155, 72

L.Ed. 395 (1927).

Imbler involved a §1983 action in which

Imbler, an exonerated criminal defendant,

sought damages against a prosecuting

attorney for the prosecutor's alleged

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects or causes to be

subjected, 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 Constitution and laws,

shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding

for redress.

Id., 424 U.S. at 424-29, 96 S.Ct. at 992-94, 47

L.Ed.2d at 139-43.

knowing use of false testimony and

suppression of material evidence to obtain

an illegal conviction. Imbler, 424 U.S. at

415-16, 96 S.Ct. at 987-88, 47 L.Ed.2d at

134-35. The prosecutor successfully moved

for dismissal under F.R.C.P. 12(b)(6) on the

ground that he was absolutely immune from

civil liability and the Ninth Circuit

affirmed. Id., 424 U.S. at 416,96 S.Ct. at

988, 47 L.Ed.2d at 135. On certiorari review

of that dismissal, the United States Supreme

Court addressed the issue of whether a

prosecutor is absolutely immune from civil

liability under § 1983 by focusing on the

various functions that a prosecutor serves

in society and the balance which must exist

between protecting the integrity of those

functions and protecting private citizens

from prosecutorial abuse. Id., 424 U.S. at

421-24, 96 S.Ct. at 990-92, 47 L.Ed.2d 138-

40. After completing this review, the Court

held:

It remains to delineate the boundaries

of our holding. As noted, the Court of

Appeals emphasized that each of

respondent's challenged activities was

an “integral part of the judicial

process." The purpose of the Court of

. Appeals' focus upon the functional

nature of the activities rather than

respondent's status was to distinguish

and leave standing those cases, in its

Circuit and in some others, which hold

that a prosecutor engaged in certain

investigative activities enjoys, not

the absolute immunity associated with

the judicial process, but only good-

faith defense comparable to the

policeman's. We agree with the Court of

Appeals that respondent's activities

were intimately associated with the

judicial phase of the criminal process,

and thus were functions to which the

reasons for absolute immunity apply

with full force. We have no ogsésion 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. We hold only that in

initiating a prosecution and in

presenting the State's case, the

prosecutor is immune from a civil suit

for damages under § 1983.

Id., 424 U.S. at 430-31, 96 S.Ct. at 994-95,

47 L.Ed.2d at 143-44 (citations and

footnotes omitted).

Courts and commentators generally agree

that this holding structured a functional

analysis. Cleavinger v. Saxner, 474 U.S.

193, 201, 106 S.Ct. 496, 501, 86 L.Ed.24d

507, 514 (1985). This court adopted the

functional analysis in Blake. In Blake this

court extended absolute immunity to a county

and prosecuting attorney who employed and

supervised an investigator to check both

court and penitentiary records, investigated

matters preliminary to initiating the

prosecution, and presented the prosecution

Of the state's case of perjury charges

against a juror. Blake, 651 P.2d at 1104.

Relying on Imbler and decisions foilowing

that case, this court determined that the

prosecutor's challenged activities were

intimately associated with the judicial

phase of the criminal process. In that

regard, this court found it significant that

the ill-fated prosecution concerned possible

"perjury by a prospective juror, arising in

a judicial proceeding by failure to disclose

[on voir dire examination] a conviction of

felony." Id. at 1106. In this court's view,

the integrity of the judicial process was at

stake in the prosecutor's performing the

investigative function. Therefore,

not only do we have an investigation

involving the initiation of a criminal

prosecution, 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

prosecutor in preparation for

initiation of the criminal process by

filing of a complaint and trial.

Id. at 1106.

The functional analysis requires a

cautious judicial application because

"(ajbsolute immunity flows not from rank or

title or ‘location within the Government, '

but from the nature of the responsibilities

of the individual official." Cleavinger, 474

U.S. at 201, 106 S.Ct. at 501, 88 L.Ed.2d at

514 (emphasis added; citation omitted). It

probes the character of the ultimate

decisions required by any prosec. sr who

would make decisions in the situation in

question; allegations of malice, self-

interest, vindictiveness and the like will

not defeat absolute immunity for protected

prosecutorial functions. Myers v. Morns, 810

F.2d 1437, 1446 (8th Cir.), cert. denied,

484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58

(1987); Ybarra v. Reno Thunderbird Mobile

Home Village, 723 F.2d 675, 678 (9th Cir.

1984), and numerous cases cited therein.

Therefore, the reviewing court must not

allow its focus on the functional character

of the prosecutorial conduct at issue to be

skewed by an emotional response te a

particularly abusive fact situation. There

is no bad faith exception to absolute

prosecutorial immunity for prosecutorial

conduct that meets the Imbler requirements.

See Imbler 424 U.S. at 427, 96 S.Ct. at 993,

47 L.Ed.2d at 141. See also Taylor v.

Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981),

cert. denied sub nom. Barbera v.

Schlessinger, U.S. , 109 S.Ct. 133, 103

L.Ed.2d 808 (1989) (soliciting and suborning

perjured testimony does not create liability

in damages for prosecutorial conduct

functionally qualifying for absolute

immunity under Imbler); Lee v. Willins 617

F.2d 320, 322 (2d Cir.), cert. denied, 449

U.S. 661, 101 S.Ct. 168, 66 L.Bad.24@ 76

(1980) (falsifying evidence and coercing

perjured testimony); Campbeu v. State of

Maine, 787 F.2d 776, 778 (1st Cir. 1986).

The functional approach has proven to

be a somewhat difficult standard to apply

because of the limited scope of the Imbler

holding. In Imbler, the Court recognized

there would be administrative and

investigative prosecutorial conduct not done

in furtherance of a prosecutorial function

that demands the protection of absolute

immunity. Imbler, 424 U.S. at 430-31, 96

S.Ct. at 995, 47 L.Ed.2d at 143-44. See also

Butz v. Economou, 438 U.S. 478, 515-16, 98

(1978) (certain federal administrative

officers are entitled to absolute immunity

when they function analogous to

prosecutorial functions protected under

Imbler). However, the Court expressly

reserved an explanation of the difference

between the two classes of conduct noting

only that: "Drawing a proper line between

these functions may present difficult

questions, but this case does not require us

to anticipate them." Id., 424 U.S. at 431,

96 S.Ct. at 995, 47 L.Ed.2d at 144 n.33.” AS

9 In Imbler, a plurality of the Court expressly

stated:

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

office rather than that of advocate.

33 We recognize that the duties of the prosecutor

in his role as advocate for the State involve

actions preliminary 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 sensitive

issues. These include questions of whether to

present a case to a grand jury, whether to file

an information, whether and when to prosecute,

the following discussion will illustrate,

federal and state courts have been wrestling

with those difficult questions ever since.

The Eleventh Circuit recently remarked

"‘(tjhe dividing line is amorphous, and the

process of determining on which side of the

line particular kinds of conduct fall has

proceeded on a case-by-case basis." Marx v.

Gumbinner, 855 F.2d 783, 789 (llth Cir.

1988). The Cooneys' § 1983 action against

prosecutor White requires that we venture

into this difficult legal terrain.

whether to dismiss an indictment against

particular defendants, which witnesses to call,

and what other evidence to present. Preparation,

both for the initiation of the criminal process

and for trial, may require the obtainin

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 difficult questions, but

this case does not require us to anticipate

them.

Imbler, 424 U.S. at 430-31, 96 S.Ct. at 995, 47

L.Ed.2d at 144 (quoted in Blake, 651 P.2d at 1101-

02 (emphasis added)).

In their appeal the Cooneys contend _

that the deputy county attorney's wrongful

conduct was his decision to have Mr. Cooney

arrested and detained in jail for thirty-

eight days. They argue that the deputy

county attorney's activities of assisting

the Department, of using the perjured

probation revocation petition to obtain a

bench warrant for Mr. Cooney's arrest, and

of causing Mr. Cooney to be arrested and

detained were administrative in nature and

not the functional equivalent of the

prosecutor's role as an advocate in a

criminal proceeding. If they are correct,

the deputy county attorney enjoys qualified,

not absolute, immunity in their civil rights

action.

2. Application of Imbler and Blake

Against the backdrop of Imbler and

Blake, we must determine whether the deputy

county attorney's chalienged activities

"were intimately associated with the

judicial phase of the criminal process,"

and, therefore, were "functions to which the

reasons for absolute immunity apply with

full force ' Imbler, 424 U.S. at 430, 96

S.Ct. at 995, 47 L.Ed.2d at 143.

Probation Revocation as part of Criminal

Proceedings

Without question, the sentencing

court's granting of probation, supervision

of the probationer's service of probation

and involvement in probation revocation

proceedings are well within the judicial

phase of the criminal process. "Probation"

is defined as "a sentence not involving

confinement which imposes conditions and

retains autnority in the sentencing court to

modify the conditions of the sentence or to

resentence the offender if he violates the

conditions." W.S. 7-13-491(a)(x) (emphasis

added). To assist the sentencing judge in

his consideration of whether to grant

probation to an offender, the judge may

direct the prosecuting attorney or the state

probation and parole officer to investigate

and report to him concerning factors which

he may weigh. W.S. 7-13-303. The

sentencing judge may place the offender on

probation under such terms as the judge

deems appropriate. W.S. 7-13-302, 304, 305.

"The sentencing judge has continuing

jurisdction over a probationer and inherent

power to revoke probation granted. Knobel

v. State (576 P.2d 941, 943 (Wyo. 1978)];

State v. Reisch ([491 P.2d 1254, 1255 (Wyo.

1971)) * * *." Smith v. State, 598 P.2d

1389, 1390 (Wyo. 1979). In Smith we

recognized, "a trial judge's sentencing

duties in a particular case are not over and —

a criminal case wherein probation is granted ©

not closed until a defendant has

satisfactorily served his probation period

or his probation revoked." Id. at 1391. We

further observed that

probation is a matter over which the

sentencing judge takes a personal hand.

His decision is one that he has made

upon the basis of his own judgment of

the defendant's potential. He has

retained controlover the defendant's

conduct because of an intimate

acquaintance with defendant as a person

gained through his own observation in

the courtroom and a special study of

his background. No one is in a better

position than the sentencing judge to

accomplish the objects of probation and

keep track of its progress. The

supervision of probation, through his

probation officers, is one of the most

important duties performed by the trial

judge. It is one of his functions in.

which he cannot be completely

impersonal. So there are compelling

reasons for the particular judge

allowing probation to trace and retain

an individual concern over each

defendant im whom he has placed his

confidence.

x * *

The probation revocation proceeding of

February, 1979, was only a continuation

of the guilty plea proceedings held in

June, 1978 * * *,

With respect to the institution of

probation revocation proceedings, if either

the state probation and parole officer or a

county attorney determines that

consideration should be given to retkain gor

reincarcerating a probationer who allegedly

has violated a condition of probation, then

that officer or county attorney shall notify

the court. W.S. 7-13-408(a). Gronski v.

State. 700 P.2d 777, 778 (Wyo. 1985);

Minchew v. State, 685 P.2d 30, 31 (Wyo.

1984); Weisser v. State, 600 P.2d 1320, 1323

(Wyo. 1979); Smith, 598 P.2d at 1390; and

Knobel v. State, 576 P.2d 941, 943 (Wyo.

1978). Either a probation officer or a

county attorney may initiate the revocation

proceedings:

in both instances the request for

revocation [is] directed to the judge

and, based upon the showing in the

petition, it [is] the judge who

[decides] whether or not to issue a

warrant for the apprehension of the

defendant. Furthermore, in both

instances, it [is] the court that

[decides] the ultimate revocation

issue.

Weisser, 600 P.2d at 1323. Just as the

granting of probation is addressed to the

sound discretion of the sentencing judge, so

is its revocation. Gronski, 700 P.2d at 778.

Our statutory provisions and our case

law provide the proper due process

protections to which a probationer faced

with possible probation revocation is

entitled. Among the many safeguards which

our law affords the probationer in that

circumstance are rights to written notice of

the nature and content of the allegations, a

probable-cause hearing before a judge, an

opportunity to consult with any persons

whose assistance he reasonably desires,

confront and examine any person who has made

allegations against him, counsel, present

evidence on his own behalf, and a decision

on the merits by the sentencing judge who

makes a conscientious judgment after hearing

the facts. See W.S. 7-13-305, 408; W.S. 7-

104; Gagnon v. Scarpelli 411 U.S. 778, 93

S.Ct. 1756, 36 L.Ed.2d 656 (1973); Minchew,

685 P.2d at 31-32. Although the decision to

revoke probation is not based upon a "beyond

a reasonable doubt" standard of proof, the

sentencing judge's revocation decision is

reviewable under an abuse of discretion

standard. Longwell v. State, 705 P.2d 336,

338 (Wyo. 1985); and Minchew, 685 P.2d at

32.

In light of this review of the nature

and substance of the imposition, supervision

and revocation of probation under Wyoming

law, we reject the Cooneys' arguments that

Mr. Cooney's criminal case was closed and

his criminal proceedings were at an end when

deputy county attorney White performed his

challenged activities. Although it is true

that "[a] probation revocation hearing is

not a trial on a new criminal charge," we

recognize it is “an extension of the

sentencing procedure resulting from

conviction of the basic charge, coupled

with" the probationer's due process

entitlements. Minchew, 685 P.2d at 31. As we

have shown, from the granting of probation

through the supervision of probation to the

revocation of probation, the sentencing

judge has continuing jurisdiction over the

probationer during the sentencing stage of

the criminal proceeding. Without a doubt,

this sentencing stage is an integral part of

the judicial phase of the criminal process.

We emphasize and add to that said earlier:

—--

"The supervision of probation, through his

probation officers [and, we would add, the

county attorney] is one of the most

important duties performed by the trial

judge." Smith, 598 P.2d at 1391.

Intimate Association of Prosecutor's

Activities With Judicial Phase of Criminal

Process

In our foregoing review of this

important sentencing stage of the judicial

phase of the criminal process, we have

specifically referred to the roles played by

the probation officer and the county

attorney. As we have shown, under Wyoming

law these officials perform vital activities

of informing the sentencing judge of

possible probation violations and of

presenting them to the judge under the

probation revocation procedures. Due process

safeguards abound during this stage when the

judge receives the petition for revocation

from the county attorney "and, based

thereon, gives probable-cause consideration

to the issuance of an arrest warrant, and

thereafter conducts a hearing with the

probationer present." Weisser, 600 P.2d at

1323. Viewing deputy county attorney White's

challenged activities in this perspective,

we reject the Cooneys' argument that his

challenged activities are not the functional

equivalent of the prosecutor's role as an

advocate in a criminal proceeding. We are

convinced that his challenged activities are

advocatory and "intimately associated with

the judicial phase of the criminal process"

and, therefore, "are functions to which the

reasons for absolute immunity apply with

full force." Imbler, 424 U.S. at 430, 96

S.Ct. at 995, 47 L.Ed.2d at 143.

We find substantial support for our

conviction in several decisions in the

federal circuit courts of appeal. In Harns

v. Menendez, 817 F.2d 737 (llth Cir. 1987),

an action under 42 U.S.C. § 1983, the court

relied on Imbler and extended absolute

immunity to a state's attorney who allegedly

perjured nimself and conspired with the

judge and a deputy sheriff to have the

probationer arrested without probable cause

and to have his probation revoked. In Allen

v. Thompson, 815 F.2d 1433 (llth Cir. 1987)

(per curiam), a civil rights action, the

court extended absolute immunity to a United

States Attorney and an assistant United

States Attorney who, at the Federal Parole

Commission's request, wrote a letter to the

Bureau of Prisons and the Parole Commission

allegedly falsely advising that a prisoner

was guilty of additional drug trafficking

for which he had not been charged or

convicted, which resulted in the prisoner's

parole eligibility date being enlarged and

the prisoner's being reclassified to receive

special monitoring. Finding that the federal

prosecutor's activity of submitting

information to the Federal Parole Commission

falls within Imbler's protection, the Court

explained:

a probation officer is entitled to

immunity when preparing and submitting

a presentence report in a criminal

case. We noted that "(t]he report is an

integral part of the sentencing

process, and in preparing the report

the probation officer acts at the

direction of the court."

Here, the prosecutor responsible for

{the prisoner's] case forwarded

infornation about [the prisoner] to the

Parole Commission at the Commission's

request. This duty is assigned to the

U.S. attorney's office as part of its

role in the prosecution and sentencing

of federal cases. Parole decisions are

the continuation of the sentencing

process, and the Assistant United

States Attorney's reports to the Parole

Commission are part of that process.

While not undertaken literally at the

direction of the court, these

activities are so intimately associated,

with the judicial phase of the criminal

process as to cloak the prosecutors

with absolute immunity from suits for

damages.

Id. at 1434.

In Hamilton v. Daley, 777 F.2d 1207

(7th Cir. 1985), an action under 42 U.S.C.

§ 1983, the court gave absolute immunity to

an assistant state's attorney who allegedly

forced two complaining witnesses to testify

although he knew their testimony would be

false and who allegedly caused an arrest

warrant to issue for an alleged probation

violation. Relying on Imbler, the court

said: "Probation revocation is a criminal

proceeding. Prosecutors are absolutely

immune from suit for initiating a

prosecution and presenting the state's

_ Poe ee ee ee

case." Hamilton, 777 F.2d at 1213.

Addressing the probationer's claim about the

arrest warrant, the court observed, "* * *

we have long held that securing the

attendance of witnesses is associated with

the judicial process and that any claim

against a prosecutor arising from that

activity is barred by absolute immunity.

Daniels v. Kieser, 586 F.2d 64, 69 (7th Cir.

1978), cert. denied, 441 U.S. 931, 99 S.Ct.

2050, 60 L.Ed.2d 659 (1979)." Id. See also,

Taylor v. Jones, 121 Cal.App.3d 885, 175

Cal.Rptr. 678 (1981), where the court

extended absolute immunity to county

district attorneys who, allegedly motivated

by racial prejudice, were involved in

revoking probation.

In our review of the more recent

decisions of the federal circuit courts of

appeals, we find the following courts

extending absolute immunity to prosecutors

who make decisions in connection with the

initiation of criminal proceedings:

First Circuit

Campbell v. State of Maine, 787 F.2d

776 (lst Cir. 1986) (prosecutor

withholding exculpatory information in

presenting case; bad faith exception

does not exist).

Malachowski v. City of Keene, 787 F.2d

704 (lst Cir.), cert. denied, 479 U.S.

828,107 S.Ct. 107, 93 L.Ed.2d 56 (1986)

(city attorney prosecuting juvenile

delinquency proceeding).

Second Circuit

Baez v. Hennessy, 853 F.2d 73 (2d Cir.

1988), cert. denied, U.S. , 109

S.Ct. 805, 102 L.Ed.2d 796 (1989)

(assistant district attorney mistakenly

initiated grand jury indictment and

filed it with the court which later

dismissed it when mistake was

discovered).

Barr v. Abrams, 810 F.2d 358 (2d Cir.

;

1987) (assistant state attorney general :

initiated criminal contempt proceeding

and obtained arrest warrant leading to

an unlawful arrest and imprisonment

before charges dropped).

Sixth Circuit

Joseph v. Patterson, 795 F.2d 549 (6th

Cir. 1986), cert. denied, 481 U.S.

1023, 107 S.Ct. 1910, 95 L.Ed.2d 516

(1987) (state prosecutors allegedly

knowingly obtained issuance of criminal

complaints and arrest warrants based on

false, coerced statements).

Seventh Circuit

Henderson v. Lopez, 790 F.2d 44 (7th

Cir. 1986) (assistant state's attorney

on whose legal advice county sheriff

unwarrantedly arrested and jailed

plaintiff who had earlier satisfied a

contempt citation for failure to pay

child support).

Eighth Circuit

Casey-El v. Hazel, 863 F.2d 29 (8th

Cir. 1988) (state prosecutor allegedly

withheld ballistics test results that

would have established accused's

innocence).

Williams v. Hartje, 827 F.2d 1203 (8th

Cir. 1987) (county prosecutor allegedly

concealed autopsy report and threatened

an eyewitness into giving false

testimony at coroner's inquest into a

black prisoner's death at the hands of

his white jailers).

Myers v. Morris, 810 F.2d 1437 (8th

Cir.), cert. denied, 484 U.S. 828, 108

S.Ct. 97, 98 L.Ed.2d 58 (1987) (county

prosecutor allegedly knowingly offered

false, misleading or perjured testimony

and destroyed evidence, and without

adequate investigation initiated and

presented case in child sexual abuse

proceedings).

Ninth Circuit

McCarthy v. Mayo, 827 F.2d 1310 (9th

Cir. 1987) (special deputy attorneys

general initiated criminal proceedings

allegedly with knowledge that the

statute of limitations had run).

Ashelman v. Pope, 793 F.2d 1072 (9th

Cir. 1986) (alleged conspiracy between

judge and prosecutor to predetermine

outcome of a judicial proceeding).

Demery v. Kupperman, 735 F.2d 1139 (Sth -

Cir. 1984) (state deputy attorney :

general allegedly induced witnesses to |

testify falsely in connection with

medical license revocation

administrative proceedings).

Tenth Circuit

Meade v. Grubbs, 841 F.2d 1512 (10th

Cir. 1988) (state attorney general

failed to initiate a civil or criminal

complaint against certain state

officials for their alleged physical

violence toward and denial of medical |

care for a prisoner in their custody). |

Martinez v. Winner 771 F.2d 424 (10th

Cir. 1985) (prosecutor failed to

investigate independently a suspect's

guilt).

Lerwiil v. Joslin, 712 F.2d 435 (10th

Cir. 1983) (city attorney initiated a

prosecution for violations of state law

he was not authorized to invoke;

procured an arrest warrant from a

justice of the peace who did not follow —

required state procedure in issuing the _

warrant, and advocated excessive bail

before a magistrate). )

Eleventh Circuit

Marx v. Gumbinner, 855 F.2d 783 (llth

Cir. 1988) (state attorney and

assistant state attorney caused father

to be arrested and jailed without

probable cause when later blood tests

revealed father could not have been the

one who had sexually assaulted his

four-year old daughter).

With reference to the level of immunity

accorded probation officers involved in

Probation revocation proceedings, we note

that the Fifth Circuit recently extended

absolute immunity to parole officers. In

Farrish v. Mississippi State Parole Board,

836 F.2d 969 (5th Cir. 1988), an action

under 42 U.S.C. § 1983, the parolee was

arrested on warrant issued by a municipal

judge. A few days later, the parolee's

parole officer issued a paroled prisoner

arrest warrant causing the parolee to be

detained without bond. At his informal

preliminary hearing the parolee requested

the presence of the complaining witness. The

6 For revocation purposes no distinctions have been

drawn between offenders on parole or offenders on

probation. Gagnon v. Scarpelli 411 U.S. 778,

782, 93 S.Ct. 17567 1759, 36 L.ed.2d 656, 661

(1973).

parole officer and hearing officer said they

could not compel the witness's appearance.

That witness did not appear; however, that

witness's hearsay statement was presented

along with other evidence. The hearing

officer found probable cause to exist. The

parolee was heid in custody for the final

revocation hearing before the state parole

board. At that final hearing, held a month

after preliminary hearing, the complaining

witness did not appear and the parole board

found no reasonable cause to revoke the

parolee's parole. The court concluded that

the parole officer's challenged activities

were prosecutorial in nature and deserving

of absolute immunity. Using Imbler's

"functional" approach, the court determined

that "the parole revocation process is

indistinguishable from the initial parole

process and, arguably, is even more

adjudicatory in nature." Id., at 974.

Contra, Ray v. Pickett, 734 F.2d 370 (8th

77 .

Cir. 1984) (federal probation officer who

allegedly falsified parole violation report

given only qualified immunity; however, the

federal probation revocation scheme in

question was administrative in nature and

substance, unlike Wyoming's, which is

judicial); and Galvan v. Gannon, 710 F.2d

214 (Sth Cir. 1983) (the court held that a

state probation officer, who mistakenly

prepared a motion to revoke probation and

caused the probationer to be arrested and

jailed for twenty days, was entitled to only

qualified immunity. The Galvan court failed |

to explain satisfactorily why it believed |

the probation revocation stage of the

criminal process was less intimately

associated with the judicial phase than the

presentence stage. Both the presentence

stage and the probation revocation stage are

intimately associated with the judicial

phase of the criminal process under Wyoming

law.

;

reports in other courts. Turner v. Berry,

856 F.2d 1539 (D.C.Cir. 1988); Demoran yv.

Witt, 781 F.2d 155 (9th Cir. 1985); Burkes

v. Callion, 433 F.2d 318 (9th Cir. 1970);

Friedman v. Younger, 282 F.Supp. 710

(C.D.Cal. 1968) (also extending absolute

immunity to district attorneys); Hughes v.

Chesser, 731 F.2d 1489 (llth Cir. 1984),

Shelton v. McCarthy, 699 F.Supp. 412

(W.D.N.Y. 1988). The Shelton court

identified three factors which justify

absolute immunity for state probation

officers acts involving presentence reports:

(1) the nature of the function performed,

(2) the impossibility of guaranteeing the

accuracy of the information to be reported,

and (3) the routine adversary review and

judicial scrutiny of the reports. We think

these last mentioned factors are equally

applicable to the probation revocation stage

and lend support to extending absolute

immunity to the county attorneys who prepare

and present petitions for revocation of

probation to the judge. Shelton, 699 F.Supp.

at 415.

The Ninth Circuit's reasoning in

Demoran which afforded immunity to a state

probation officer who allegedly deliberately

falsified a presentence report, applies as

well to the deputy county attorney in this

case. This reasoning is closely paralleled

by the Tenth Circuit's Tripati opinion,

which involved a federal probation officer.

Applying that reasoning here, we believe

that the deputy county attorney's challenged

activities serve a function integral to the

independent judicial process. He acts as an

arm of the sentencing judge. He is required

by law to investigate and report to the

judge upon the circumstances of any possible

probation violation. The prospect of damage

liability under 42 U.S.C. § 1983 would

seriously erode the county attorney's

ability to carry out his independent fact-

As we are not called upon in this

case to decide the appropriate level of

immunity to which a probation officer is

entitled, under the circumstances of this

case we need not further discuss Ray,

Galvan, or the similar case of Wolfel v.

Sanborn, 691 F.2d 270 (6th Cir. 1982) (per

curiam), cert. denied, 459 U.S. 1115, 103

S.Ct. 751, 74 L.Ed.2d 969 (1983), urged on

us by the Cooneys as analogically supportive

of their position. As we have explained, in

view of the nature and substance of the

sentencing procedure and the probation,

supervision and probation revocation stages

within that procedure, and in view of the

closely related roles within that procedure

played by the sentencing judge, the

probation officer and the county attorney,

the county attorney's challenged activities

are advocatory, not administrative, and are

intimately associated with the judicial

phase of the criminal process.

Because both the probation revocation

stage and the presentence stage of the

sentencing procedure are intimately

associated with the judicial phase of the

criminal process, we find further

substantial support for our holding in the

numerous decisions extending absolute

immunity to probation officers involved in

the Presentence State of the sentencing

process. Federal probation officers have

been held absolutely immune in their

preparation and submission of presentence

reports. See Dorman v. Higgins, 821 F.2d 133

(2d Cir. 1987); Tripati v. United States

Immigration and Naturalization Service, 784

F.2d 345 (10th Cir. 1986), cert. denied, 484

U.S. 1028, 108 S.Ct. 755, 98 L.Ed.2d 767

(1988);

Spaulding v. Nielsen, 599 F.2d 728 (Sth

Cir. 1979). State probation officers have

been held absolutely immune for their

preparation and submission of presentence

finding function and thereby impair the

sentencing judge's ability to carry out his

judicial duties.

A plethora of procedural safeguards

surrounds the filing of a probation

revocation petition. The petition is

reviewed by the judge who makes an ex parte

probable-cause determination. The

probationer receives a copy of the petition

and is entitled to counsel, to consult with

persons whose assistance he reasonably

desires, to confront complaining witnesses,

to present evidence on his own behalf and to

the sentencing judge's decision on the

merits after conscientiously hearing the

facts. In addition to that first level of

judicial review, the probationer is afforded

review by this court to ensure that the

sentencing judge's revocation decision was

not the result of an abuse of sound

discretion.

We believe it evident that a deputy

county attorney who assists the court in

making these determinations during the

sentencing process is performing activities

which are exclusively for the benefit of the

court. We hold, therefore, that these

challenged activities are intimately

associated with the judicial phase of the

criminal process and are functions to which

the reasons for absolute immunity apply with

full force.’

y Safeguards against prosecutorial misconduct, other

than damages actions within 42 U.S.C. § 1983, exist

outside the judicial process in the form of

professional sanctions and criminal prosecutions.

In Imbler, the Court made it a point to remind

prosecutors that:

This Court has never suggested that the policy

considerations which compel civil immunity for

certain governmental officials also place them

beyond the reach of the criminal law. Even

judges, cloaked with absolute civil immunity

for centuries, could be punished criminally for

willful deprivations of constitutional rights

on the strength of 18 U.S.C. § 242, the

criminal analog of §1983. The prosecutor would

fare no better for his willful acts. Moreover,

a prosecutor stands perhaps unique, among

officials whose acts could deprive persons of

constitutional rights, in his amenability to

professional discipline by an association of

his peers. These checks undermine the argument

that the imposition of civil liability is the

only way to insure that prosecutors are mindful

of the constitutional rights of persons accused

of crime.

Id., 424 U.S. at 429, 96 S.Ct. at 994, 47 L.Ed.2d

at 142-43 (citing ABA Code of Professional

Responsibility § EC 7-13. and ABA Standards, supra,

n.24, §§ 1.1 (c), (e), and Commentary, pp. 44-

(other citations and footnotes omitted). Abusive

Wyoming prosecutors are always subject to

professional sanctions and criminal prosecutions.

See Wyoming Rules for Professional Conduct of ;

Attorneys at Law 3.3, 3.4, 3.6, 4.1, and 8.4

(1986).

Gnce properly investigated, these cases should be

pursued by the Wyoming Bar and the Attorney

General's office with zeal. The deterrence to ‘

abusive prosecution that results from a proper

disbarment and/or conviction is logically much more

effective than a large punitive damages award in a

§ 1983 action. When analyzing prosecutorial |

immunity cases, we will not arbitrarily conclude ©

that these contemporaneous remedies are necessarily

ineffective or inadequate. Doing so would require —

this court to hold that we are incapable of :

policing prosecutorial abuses properly investigated

and presented to us by the Wyoming Bar, or that a

majority cf Wyoming prosecutors necessarily would

violate their constitutional oaths rather than

prosecute another lawyer. Conclusions of that

character are untenable and must not be based on

speculation. Compare Gray v. Bell, 712 F.2d 490,

501 (0.C.Cir. (judicial supervision under the

exclusionary rule and professional sanctions are

often too attenuated from the judicial process to

provide more than “hollow and ineffectual

remedies."). See also Higgs v. District

Court In and For the County of Douglas, 713

P.2d 840, 856 (Colo. 1585). They must come from the

record or from judicially noticeable sources.

Accord Briggs v. Goodwin, 569 F.2d 10, 24

We close our discussion of this issue

with these words:

The purpose of absolute immunity is to

protect the function of the prosecutor

as the key participant in the criminal

process. The doctrine involves a choice

between protecting all prosecutors from

harassing lawsuits over their official

acts and providing redress for all

injuries occasioned by those acts.

When such a choice is made in the law,

it is inevitable that someone will be

hurt. But the choice must be made, and

it has been long decided that it is

better to allow a few wrongs to go

unredressed than to expose all

prosecutors to the risk of retaliation

(0.C.Cir. 1977), cert. denied, 437 U.S. 904, 98

S.Ct. 3089, 57 L.Ed.2d 1133 (1978) (where the

record indicated a four and one-half year lapse

since the alleged prosecutorial misconduct without

any official inquiry). Without record evidence to

the contrary, we must assume that professional

sanctions and criminal prosecution are remedies

available to an aggrieved private citizen as a

deterrent to prosecutorial abuses.

for their occasional honest mistakes.

Gregoire v. Biddle, 177 F.2d 579, 581

(2d Cir. 1949) (L. Hand, J.), cert.

denied, 339 U.S. 949, 70 S.Ct. 803, 94

L.Ed. 1363 (1950).

Williams, 827 F.2d at 1208.

C. Claims Act Immunity for All Appellees

The district court dismissed the

Cooneys' state tort claims against all of

the appellees after it concluded that no

statutory waiver of sovereign immunity

existed under the Claims Act upon which

those claims could be based. The Claims Act

did not create new causes of action against

the State of Wyoming, its employees,

agencies, or political subdivisions; rather,

it statutorily affirmed the idea that thos

parties generally enjoy sovereign immunity

from civil liability with the exception of

certein conduct for which that immunity is

specifically waived. Pickle v. Board of

County Commissioners of County of Platte,

87 he

764 P.2d 262, 266 (Wyo. 1988). Cf£. Oroz v.

Board of County Commissioners of Carbon \}

County, 575 P.2d 1155, 1159 (Wyo. 1978). The

Claims Act provides a "close-ended" waiver

of immunity from liability, and an injured |

party suing an arm of the State of Wyoming

under the Act must first establish that the

conduct complained of fits into a specific

statutory waiver of immunity for liability.

W.S. 1-39-104(a); Abelseth v. City of

Gillette, 752 P.2d 430, 433 (Wyo. 1988,)

(citing Boehm v. Cody Country Chamber of

Commerce, 748 P.2d 704, 709 (Wyo. 1987)).

Appellees rested their motion to

dismiss the Cooneys' state tort claims on

the assertion that the conduct complained of

did not fit into any of the enumerated

exceptions to immunity. They argued that the

only applicable exception the Cooneys could

assert would be the one set out in W.S.

1-39-112 (Cum.Supp.1985), which provided: "A |

governmental entity is liable for damages |

“ins P |

resulting from tortious conduct of law

enforcement officers while acting within the

scope of their duties." (emphasis added).

See 1986 Wyo. Sess. Laws ch. 74, § 2.

Appellees also argued that a plain

interpretation of this statute would be

proper in light of this court's opinion in

Hurst v. State, 698 P.2d 1130, 1132-33 (Wyo.

1985).

In Hurst, we faced the issue whether

the plain language of the same statute

subjected members of the Wyoming State Board

of Parole or its parole officers to civil

liability for their alleged negligence in

allowing a parolee to leave the state, after

which he committed numerous murders. This

court's analysis in Hurst noted that the :

legislature had not given the phrase "law

enforcement officers" a statutory

definition. Hurst, 698 P.2d at 1133. This

court resolved that problem by looking to

the plain meaning of "law enforcement

officer" which led us to the phrase "peace

officer." Id. That phrase indicated a

legislative intent to limit peace officers

to those persons with the direct authority

to make arrests or keep the peace, and this

court upheld the trial court's determination

that parole officers were not vested with

that kind of authority. That interpretation

of the plain language of W.S. 1-39-112

(Cum.Supp.1985) a also compared with case

law from other jurisdictions defining the

class of persons considered law enforcement

officers, which case law generally supported

that distinction. Id. at 1134. Relying on

this information this court held that the

waiver of sovereign immunity under the

phrase "law enforcement officer" did not

extend to the Parole Board or its officers.

Id. Appellees have asserted that under

either the unambiguous language of W.S.

1-39112, or the holding in Hurst, cor both,

no statutory waiver of immunity existed to

allow the Cooneys' state tort claims.

The Cooneys have countered those

arguments by urging a broader waiver of

sovereign immunity under W.S. 1-39-112,

premised on a review of its subsequent

legislative history. They explained that

this court published its opinion in Hurst in

April 1985. In the next year, during the

1986 legislative session, the legislature

amended W.S. 1-39-112 by substituting the

phrase "peace officers" for "law enforcement —

officers." That amendment became effective

on Marcn 18, 1986, three days after Mr.

Cooney was incarcerated. The Cooneys further |

noted that the amendment went on to provide

for an automatic repealer that would change i

the phrase “peace officers" back to "law

enforcement officers" effective June 16,

1988. See 1986 Wyo. Sess. Laws ch. 74, § 4.

The Cooneys theorized that this legislative

maneuver was intended to create a two year

“+>

time period during which the legislature

could set up a state self-insurance program

to provide monies to be available to pay for

the liability of a "peace officer." See W.S.

1-41-101 through 1-41-111 (Cum.Supp.1986).

They also argued that the 1986 amendment's

automatic resuscitation of the phrase "law

enforcement officer" into the current

version W.S. 1-39-112 stands as evidence of

legislative intent to give that phrase a

broader meaning than the one articulated by

this court in Hurst. Under this line of

reasoning, they concluded that the

legislature intended the phrase "law

enforcement officers" in W.S. 1-39-112 to

have a broader meaning from the inception of

the statute and that it waived tort

sovereign immunity for the appellees in this

case and any other governmental officials

who assert a more general authority to

enforce the laws.

The district court considered the

arguments of both parties on this issue and

ruled for appellees. In its decision letter

it rejected the Cooneys' approach to

statutory interpretation of W.S. 1-39-112,

and dismissed their state tort claims

against all appellees finding them to be

barred by sovereign immunity.

In this appeal, the Cooneys advance

essentially the same arguments they meade

before the district court and candidly

request that we overrule our decision in

Hurst to reach the result they desire. The

Cooneys' theory is creative, but, stripped

of its trappings, advocates placing this

court in the role of legislative clairvoyant

when the unambiguous language of the

controlling statute, W.S. 1-39-112, plainly

does not waive tort immunity for persons who

are not "law enforcement officers" as we

defined that phrase in Hurst. The

legislative intent that might have been

lurking behind recent changes to the

language in W.S. 1-39-112 is not a

substitute for upholding a plain reading of

an unambiguous statute. Hurst does that, and

stare decisis demands that we follow Hurst

in this case. We do not see any statutory

waiver of sovereign immunity for appellees

under the plain language of W.S. 1-39-112.

We affirm tne district court's W.R.C.P.

12(b)(6) dismissal of the appellants'

complaint.

URBIGKIT, Justice, dissenting.

THE ISSUE IN PERSPECTIVE

This case questions whether society

provides a remedy when public officials

commit perjury, suborn perjury and

acknowledge commission of perjury in the

pointless and almost random incarceration of

a person without justification. In refusing

to consider only disbarment, censure or

criminal prosecution, none of which will

occur, I will not reject civil damages for

at least an attainable alternative. This is

Civil war; not by members of the society

against the government, but by

representatives of government against its

citizens. This is statism! at its worst.

: Superiority of government, inferiority of citizens, |

rejection of predominance of rights guaranteed by —

amendment to the United States Constitution and

Bill of Rights of the Wyoming Constitution, e.g.,

Wyo. Const. art. 10, § 4. Concentration of all

economic controls and planning in the hands of a

highly centralized government." Webster's Third New

International Dictionary 2230 (1971). CJ: White

v. Towers, 37 Cal.2d 727, 235 P.2a 209,

This is the story of Thomas Russell Cooney

who was unjustly arrested and thrown into

jail for thirty-eight days without any court

appearance upon a complaint intentionally

based on false if not perjurious statements

of government employees. This is absolute

immunity for official misconduct defined as

"'entitlement not to have to answer for

* * * conduct in a civil damages action.'"

Murphy v. Morris, 849 F.2d 1101, 1103 (8th

- Cir. 1988) (quoting Mitchell v. Forsyth, 472

U.S. 511, 525, 105 S.Ct. 2806, 2815, 86

L.Ed.2d 411 (1985)).

Finally, it is a travesty and tragedy

of rules of law that protect governmental

misconduct from responsibility. By that, it

is a strange and paranoid lemming like

march, universally criticized by academic

review which was accurately described

thirty-one years ago to be justified by

"arguments (which offer a wry blend of fairy

(1951). Immunity is not a “major step toward

‘statism.'" Id. at 211.

tale and horror story." Gray, Private Wrongs

of Public Servants, 47 Cal. L. Rev. 303, 339

(1959) .¢ "This development has occurred in

the context of logical inconsistencies and

often with only cursory reasoning." Grimm v. —

Arizona Bd. of Pardons & Paroles, 115 Ariz.

260, 564 P.2d 1227, 1231 (1977). Immunity

for responsibility for public officials is

not mandated by the constitution nor even

statute, but rather a public policy where

the public to be protected is the miscreant

public official at the loss and damage of

the injured innocent citizen. Society cannot

be sustained in a democratic system if

arbitrary, malicious and perjurious conduct

2 Gray, supra, 47 Cal. L. Rev. at 303 initiates this

composition by quotation from William Shakespeare,

Measure for Measure, Act II, Scene 2:

"Ol It is excellent .

To have a giant's strength; but it is tyrannous |

To use it like a giant...."

If monstrous is substituted for tyrannous, the

philosophical battle lines become clarified. See

Gregoire v. Biddle, 177 F.2d 579 (2nd Cir.

, cert. denied 339 U.S. 949, 70 S.Ct. 803,

94 L. Ed. 1363 (1950).

is not considered to be both reprehensible

and punishable.

Initially, in fairness to Chris J.

White, assistant county prosecuting

attorney, and Robert Mayor, probation

officer for the Wyoming Department of

Probation and Parole, this case does not

-"prove" why they did what they did or what

in fact they may have done. In choosing to

escape a full factual review, they are faced

in concepts of the law with the stage where

this case did progress which provides

tactical assumptions of guilt to allegations

whether in fact true.°

3 The vice of this case is in writing bad law on

assumed facts. One could peripherally hope that the

real facts were not actually so bad as what we now

assume them to be by the state of this record.

Suborning perjury by a prosecutorial official is

unlimited meanness. Since the law that we wil]

write is based on the assumption of the facts that

were made by disposition in the motion to dismiss,

we write with an assumption of validity but with a

prayer that somehow lawyers, professionals and

governmental agents must have some better

explanation for the perpetration of cruelty than

intentional criminality upon the hapless victims,

Tom and Lora and their small child. Suborning

perjury by a public official is infinitely worse in

I would concur with the majority that

the occurrence could be further explored in

disciplinary action against the attorney

which could lead to disbarment and criminal

prosecution against both the attorney and

the parole officer. However, realistically,

neither will occur. Actually, far better in

fairness and justice to everyone, would be a

responsible review in civil litigation.‘

malum prohibitum than whatever may have occurred

when Cooney, aS a teenager, wrote insufficient fund

checks which, as a societal activity for anyone

with knowledge of banking activities, is

commonplace.

4 An interesting observation is found in ABA

Monogram, The Judicial Role in igen

Referring Prosecutoria sconduct [.12-1.13

(1989):

Any case in which a court has ordered a

reversal of a conviction because: of

prosecutorial misconduct should, as a matter of}

court policy, be referred to the disciplinary

body for investigation, whether or not the

referral is mentioned in the opinion. Even when;

prosecutorial misconduct is not sufficient to ff

require reversal of a conviction, if a court |

sees fit to comment adversely on a prosecutor's}

conduct, it should also refer the matter to thee

disciplinary body for investigation. :

ae ne Segre ee

a ste i

An inextricable rule of this character would create |

its own danger in that the appellate court might bet

reluctant to reverse if the necessities of :

disciplinary review would automatically follow. It

is apparent within the heavy volume of

prosecutorial misconduct complaints that not even

in a small percentage of total cases providing a

ffnding of fault (not necessarily reversible error)

was any disciplinary reference by the court made.

Perhaps the only meaningful substitute for

compensation would be the application of

Hammurabi's Code, 1792 to 1750 B.C., where White

and Mayor would spend thirty-eight days in the Park

County jail as prisoners without access to a court

and while their families, if any, wait without.

funds or home for some other bureauaatic majordomo

to end the incarceration. It should be recognized

that we write at a time where economic harm

responsibility can be asserted painfully against

attorneys under a Rule 11 assessment. See Kapco

Mfg. Co., Inc. v. C & O Enterprises, Inc., 356 F.2d

14st Cir. 1969), where counsel failed in

defense of his $46,780.07 Rule 11 penalty on the

basis of a family's contended needs for their

children in college.“ Compare, however, Freeman v.

Myers, 119 I1I.App.3d 223, 138 I111.Dec. 419,

N.E.2d 586 (1989), which shows how this non-

responsibility for irresponsibility has wandered.

Counsel, by deliberately ignoring court direction,

incited a mistria:. The trial court, upon granting

the mistrial, also granted attorney's fees to the

other litigant. The appellate court in reversal,

even though finding the misconduct to have been a

violation of the court order, stated:

Such a sanction [awarded attorney's fees] could

have a dangerous chilling effect upon an

attorney's ability to represent his client.

Trial tactics should not be constrained with

the fear a mistake or vigorous advocacy could

result in severe financial penalty. There may

be cases where it would be difficult to judge

between mistaken tactics and deliberate and

premeditated conduct. * * * Additionally, in

clearly intentional situations a court may be

100

Privileges and immunities against

responsibility are an anathema for

democratic society and most appropriately

correctable by civil damage responsibility.

The proper office of immunity should be

constrained to protect govemmental operation |

and not to insulate needlessly abject

misconduct.

Alleged official misconduct,

corruption, and perjury is hidden here

behind the dirty skirts of immunity. From

these denigrations of rights guaranteed not

only by the United States Constitution but

also the Wyoming Constitution, which was

written in the vigor of a young society for

a new state, I impassionately dissent. It is

time to look again whether our foundational

documents are written to be found only as

blank pages when governmental personnel

misconduct occurs. Statism's uncaring

able to fashion appropriate relief pursuant to

contempt proceedings.

Freeman, 547 N.E.2d at 589.

| .

101 7

autonomy in denied relief from oppression

simply should not be acceptable within the

clear mandate of the Wyoming Constitution.

In response by caricatures of immunity for

absolution from oppressive misconduct,

malfeasance and perjury, we now write "no"

for the state's adjudicatory future and to

the Wyoming Constitution for protection of

our citizens in whose protective interests

the sacred and unalienable rights were

provided.

II.

WE WRITE AS WYOMING JURISTS

WITHIN A WYOMING CONSTITUTION

I cannot retreat to find justice only

for punishment of the miscreant where

recompense to the victim could more

appropriately serve society's interests.

Consequently, I dissent from affirming the

grant of the W.R.C.P. 12(b)(6) motion to

dismiss. We misplace responsibility and

improvidently auger out criminal conduct by

the majority opinion. I am also unwilling to

*+Ve

accept fear of responsibility as the basic

justification of operational failures of

government. Imbler v. Pachtman, 424 U.S.

409, 96 S.Ct. 984, 47 L.Bd.2d 128 (1976) was §

a bad case, a statistic derivation lacking

accurate historical base and need not be

extended further than the empirical sweep of |

the United States Supreme Court broom and

not so far now to deny rights to this

victim. A deterrence to sloganistic

5 Prosecutorial immunity can only be dated to 1896 or)

twenty-five years after the enactment of the 1871

Ku Klux Klan Act, Act of April 20, 1871, chapter

22, § 1, 17 Stat. 13 (codified at 42 U.S.C. §1983

(1982)). The initiating case was Griffith v.

Slinkard, 44 N.E. 1001 (Ind. 1896). See Imbler,

424 U.S. at 421 and Kreimer, The Source of Law in |

Civil Rights Actions: Some Old Light on Section q

1988, 1 U. Pa. L. Rev. r) 9 fie ° For q

this very obvious reason, a reconstruction by |

neeentelt analysis of immunities in the

application of Section 1983 has clear invalidity.

See Coleman, 42 U.S.C 1988: A Congressional

Mandated Approach to the Construction of Section |

Ind. L. Rev. 605, 677 (1960), which states|

that. [n]jowhere in the debates accompanying the :

passage of the Ku Kim Klan act of 1871 did members

of Congress state that common law was incorporated {

into the 1871 Act. The Court has nevertheless

attempted to deduce a rationale for implying such

incorporation." See also Smith v. Wade, 461 U.S.

30, 93,103 S.Ct. 1625, 75 Ed.2d 632 (1983)

(O'Connor, J., dissenting). Coleman, supra, 19 Ind.

4Vo

extension is called to cur attention by the

state constitution where it is stated:

All power is inherent in the people,

and all free governments are founded on

their authority, and instituted for

their peace, safety and happiness; for

the advancement of these ends they have

at all times an inalienable and

indefeasible right to alter, reform or

abolish the government in such manner

as they may think proper.

Wyo. Const. art. 1, § l.

The right of the people to be secure in

their persons, houses, papers and

L. Rev. at 691, discerns “from the crazy-guilt

interplay of policy, common law, and the purposes

of section 1983 that the Court in the immunity

cases has engaged in the creation of common law."

The English law has long since excised the

inequality of the citizen against his public

official. Dicey, The Law of the Constitution 189

(8th ed. 1915) (quoted in Jaffe, Suits Against

Governments and Officers: Damage Actions, 77 Harv.

CL. Rev. 209, 215 (1963)). See also Gray, supra,

47 Cal. L. Rev. 303.

In current sarcasm--but accuracy--for so-called

historical analysis, see Massey, The Jurisprudence

of Poetic License, 1989 Duke L.J. 1047 ioe).

Wyo.

Wyo .

, seized.

-wv* =

effects against unreasonable searches

and seizures shall not be violated, and

no warrant shall issue but upon

probable cause, supported by affidavit, |

particularly describing the place to be

searched or the person or thing to be

Const. art. l, § 4.

No person shall be deprived of life,

liberty or property without due process.

of law.

Const. art. 1, § 6.

Absolute, arbitrary power over the

lives, liberty and property of freemen

exists nowhere in a republic, not even

in the largest majority.

Const. art. 1, § 7.

All courts shall be open and every

person for an injury done to person,

reputation or property shall have

justice administered without sale,

denial or delay. Suits may be brought

wyo.

against the state in such manner and in

such courts as the legislature may by

law direct.

Const., art. 1, § 8.

No law shall be enacted limiting the

amount of damages to be recovered for

causing the injury or death of any

person.

Wyo. Const. art. 10, § 4.

Not unobtrusively involved is the oath

-of office which surely should include an

assistant prosecuting attorney where, under

sacred oath, the governmental official

states in part:

"I do solemly swear (or affirm) that I

will support, obey and defend the

constitution of the United States, and

the constitution of this state, and

that I will discharge the duties of my

office with fidelity; * * *."

- Const. art. 6, § 20.

106

In obedience to that sacred trust, I do

not draw down the insulative curtain of

Imbler to so closely protect malefactors by

simply accepting what the majority says that

"the reviewing court must not allow its |

;

focus on the functional character of the |

prosecutorial conduct at issue to be skewed |

by an emotional response to a particularly

abusive fact situation. There is no bad

faith exception to absolute prosecutorial

immunity for prosecutorial conduct that_

meets the Imbler requirements." I do not

reject the function analysis upon which the

majority so strongly relies; I resist

characterizing perjury from another public

official as a function of the prosecutorial

responsibilities in order to fulfill the

most weighty position in the criminal

justice delivery system. The function of the

prosecutor does not include the commission

of a crime. B. Gershman, Prosecutonal

Misconduct (1989). See also the rule that

107

the knowing use of perjured testimony by the

prosecution denied a defendant due process

of law and requires that the defendant be

granted a new trial. People v. Foster, 190

Ill.App.3d 1018, 138 Ill.Dec. 311, 547

N.E.2d 478 (1989). See also Tiersma, The

Language of Perjury: "Literal Truth,"

Ambiguity, and the False Statement

Requirement, 63 So. Cal. L. Rev. 373 (1990).

It is unacceptable by whatever

justification to demean due process and

fairness to the accused, Phillips v. State,

774 P.2d 118 (Wyo. 1989); Harvey v. State,

774 P.2d 87 (Wyo. 1989), in order now to

cover up suborned perjury committed by the

public official. C] Blake v. Rupe, 651 P.2d

1096 (Wyo. 1982), cer . denied 459 U.S.

1208, 103 S.Ct. 1199, 75 L.Ed.2d 442 (1983).

Unfortunately, the majority gives immunity

to the alleged criminal behavior in this

instance by moving parole and probation

decisions into the prosecutor's criminal

108

prosecution function. Likewise, the majority —

obliterates the Wyoming Constitution in

seeking justification from the federal

courts where those officials did not achieve

office by allegiance to the constitution of

this state.

Iil.

FACIS PRESENTED

Lacking any adequate development of the

factual record, it is impossible to

understand not only why but what happened

resulting in the issuance of the arrest

warrant and the consequent incarceration of

Cooney .°® TO answer as we can requires

6 Use of the motion to dismiss to dispose of absolute

or qualified immunity cases provides its own

singular disability. The record, as developed, is

singularly unsatisfactory to either factually

justify trial court decision or to provide

protection to the accused official from what may be

unsubstantiated allegations. The author in

Kinports, Qualified Immunity in Section 1983 Cases:

The Unanswered Questions, a Ga. -L. Rev. as -

» IM recognition of the entire problem of

court developed immunity to require a reasoned

application, approached this problem:

On a procedural level, Harlow tye See

457 U.S. 800, 102 S.Ct. ; -Ed.

109 if

(1982)] should not be interpreted as

jettisoning years of judicial experience in

dealing with comparable issues: Like other

affirmative defenses, therefore, qualified

immunity is something the defendant should be

required to plead and prove. Similarly, the

courts should treat claims of qualified

immunity like other pretrial motions and should

afford the plaintiff an opponunity to conduct

limited discovery relevant to the qualified

immunity analysis before ruling in favor of the

defendant on that issue.

Thoughtful authority has followed this view. Maxe

By Maxey v. Fulton, 890 F.2d 279 (10th Cir. 1 :

Gomez v. City of Nashua, N.H., 126 F.R.D. 432

(0.N.H. (oaS}. In Maxey By Maxey, 890 F.2d at 282,

the Tenth Circuit eeart of Appeals discerned that

Mitchell, 472 U.S. 511 did not “sweep so broad to

deny proper discovery. [D]iscovery is permissible"

for which it is “‘narrowly tailored to uncover only

those facts needed to rule on the immunity claim *

x *,'" Maxey By Maxey, 890 F.2d 282-83 (quoting

Lion Boulos v. Urlson, 834 F.2d 504, 507-08 (5th

Cir. 1987)). How much more satisfying this present

case would be if we had an adequate evidentiary

base where the prosecuting attorney and parole

officer testified under oath in cross-examination

as to why they did whet they did in securing the

arrest and continuing the confinement of Cooney,

when he had done nothing wrong for which that

result was even arguably justified.

We now need to determine if we have abandoned the

principle stated by the United States Supreme Court

over a century ago, to regress to a present result

which is antithetical to the basic notion of public

accountability on which our government is premised.

"No man in this country is so high that he is

above the law. No officer of the law may set

that law at defiance with impunity. All the

officers of the government, from the highest to

110

examination of these facts to establish

where this course of conduct properly fits

into immunity absolution. This is not a

typical malicious prosecution, it is a

the lowest, are creatures of the law and are

bound to obey it."

Kinports, supra, 23 Ga. L. Rev. at 610-11 (quoting

United States v. Lee, 16 Otto 196, 106 U.S. 196,

220, 1 S.Ct. 240, 2) L.Ed. 171 (1882)).

To this end, Harlow and its progeny should be

read to deny qualified immunity to a public

official who is guilty of acting in violation

of the Constitution if she actually realized

that her conduct was unconstitutional, or if

the reasonable public official acting under the

same circumstances would have recognized the

unconstitutionality of that conduct. In

addition, this affirmative defense should be

available only if the defendant is able to

establish the requisite elements of the

defense, and only after the plaintiff is given

a reasonable opportunity to conduct the

discovery necessary to support her opposition

to the defendant's claim of immunity. This

accommodation of the competing considerations

will shield those public officials deserving of

protection from “insubstantial lawsuits," while

at the same time ensuring that government

officials may not with impunity discharge their

duties in a way that is known to them to

violate the United States Constitution or in a

manner that they should know transgresses a

clearly established constitutional rule."

Kinports, supra, 23 Ga. L Rev. at 661-62 (quoting

harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct.

1982) and Butz v. Economou, 438

U.S. 478, 507, 98 S.Ct. 2894, 57 Ed.2d 895 (1578)).

111

criminal conspiracy to commit official

perjury and deny constitutional rights to

the victim. Basic documents, including a '!

petition for revocation and warrant are not

included in the official record. The

decision letter of the trial court was

confined to the factual allegations of the

complaint. Briefing in trial court by the

defendants obviously extended the

contravention of facts and complexity of

allegations without any records or documents

produced to support the statements made.

We do know that on January 24, 1986

when Mayor contacted White to state that

Cooney had failed to contact his probation

officers, the prosecutor directed the

probation officer to prepare a petition for

revocation. Five days later, Mayor was

advised that Cooney was residing in Bairoil,

Wyoming in accordance with permission

granted and was in contact with probation

personnel. Cooney alleges that Mayor

———

Obviously, it was of great moment to Cooney that h:

comply with the probationary requirements to

protect his future career and maintain his family

of his wife and small child. Actually, following

dismissal of the revocation by hearing April 21,

1986, which is the subject of this civil damage

suit, an early petition for discharge was filed by

the Department of Probation and Parole and fol lowe:

by an order entered December 18, 1989 “that said

defendant, Russ Cooney, be and he is hereby granted

a full and complete discharge from probation in

this matter."

Céoney was a drilling rig deck hand and, at

sentence, was living in Worland and employed by

Corbin Well Service. Two payments were made on the

restitution order as mailed from Riverton where his

probation file had been transferred because of his

work status. On August 12, 1985, Chris White, for

the county attorney's office in Park County, filed

a first petition for revocation alleging

restitution payment of only $225.00, leaving a

remaining balance of about $221.92. The petition

for hearing was set on a notice of motion scheduled

to be heard November 4, 1985. The Riverton case

worker was contacted by her superior and

arrangements were made between her and Cooney for

payment of that balance. At about the same time,

Cooney also made arrangements for his transfer of

residence to Bairoil, where he was employed. He had

been working on a rig at Bairoil and commuting fron

Riverton, a distance of approximately eighty miles

each way. Finding housing available, he wanted to

move to Bairoil to be with his family instead of

the commuting arrangements. Bairoil is in

Sweetwater County, but is served by the parole

office in Rawlins, Carbon County, the closest

adjoining town. The case file was transferred to

Rawlins in October. On October 15th, the Riverton

agent received a call from Cooney in which she

believed he said his address was at a box number ir

La Barge. She stated that she furnished the

awlins office that information.

115

As a result of that mistake however made, the case

file was transferred from Rawlins to Evanston, 200

miles away, as the servicing office for LaBarge in

Lincoln County. Apparently, the August petition to

revoke just went away and, on November 6, 1985, it

was officially dismissed by another member of the

county attorney's staff.

What then occurred between and among the Rawlins,

Evanston and Riverton offices of probation and

parole and Chris White, assistant prosecutor in

Cody, is undisclosed in any record, except what was

alleged in the present pleadings. We do know that

Cooney was told to wait for contact from Rawlins

personnel and that on January 29, 1986, Riverton

received two monthly reports with advice from

Cooney that no one from Rawlins had contacted him.

The agent sent additional report forms which were

completed by Cooney and mailed to the Rawlins

office. Cooney then got permission from the Rawlins

office to move to Montana since his job at Bairoil

had terminated. Following the layoff, he found

available work in Montana for which permission to

move was requested and granted (by the Rawlins

office).

What we do not know is when both White and the

Evanston probation officer, Mayor, knew that Cooney

was in Bairoil and making regular and proper

efforts to comply with the requirements of his

probation. Cooney brings this case by alleging that

on February 7, 1986, before he was arrested and

when the petition for revocation was filed and

thereafter thrown in jail for thirty-eight days,

both White and Mayor knew what he was doing and

where. It 1S apparent from the transcript of the

probation revocation hearing that was held April

21, 1986 following arrest of March 15, 1986, that

White and his boss, the county attorney, were

taking a tough defensive stand in attempting to

excuse and justify what occurred despite the known

actual facts.

aid

contacted White with this new information

and was again directed to prepare a petition

to revoke anyway, even though the revocation

statement would be knowingly false and

perjurious in effect. Mayor prepared the

petition and a bench warrant containing the

false statements and forwarded the documents

to White who presented the petition to the

trial court and obtained a bench warrant. On

this record for motion purposes, both state

officials conspired to obtain the arrest of

Cooney by use of false statements made under

oath.

I have trouble fitting this scenario

into prosecutorial discretion and state

statutory provisions for revocation.

Something is missing in the translation and

remains missing when the public defender |

later requested Cooney's release and White

refused so that the improperly incarcerated

individual languished in jail without any

~+iJ

court hearing or appearance for thirty-eight

days.

7 See Morrissey v. Brewer, 408 U.S.

471, 92 S.Ct. 2593, 33 L.Ed.2d 448 (1972),

which requires a preliminary hearing.

y For the information of the reader, I judicially

notice what the criminal file, No. 3035, Park

County, Wyoming, shows as facts known to the

seat ien personnel and file information in the

possession of the prosecutor.

Russ Cooney was charged in a December 1983 criminal

complaint involving multiple checks written with

“insufficient funds" in an aggregate amount

sufficient to constitute a felony when totalling

more than $500. He was returned by extradition from

Colorado and the Information was filed August 22,

1984. Arraigned in September, he appeared before

the court and entered a guilty plea. On January 24,

1985, he was sentenced apparently following a plea

agreement. By then, much of the bad check

indebtedness had been paid, leaving only $446.92

remaining.

Cooney was sentenced to a term of five years under

W.S. 7-13-203 (1977) as probation before sentence

and restitution of the remaining $446.92. The

importance to him of the W.S. 7-13-203 (1977)

probationary process is that "[a]t any time after

the expiration of one (1) year from the date of the

original parole, the court shall have the power in

its discretion to terminate parole and finally

discharge the person and annul the verdict or plea

of guilty." This presentence probationary

arrangement has the effect of avoidance of a

conviction for a felony for the individual to avoid

loss of citizenship and associated adverse effects

including federal firearm possession exposure.

The petition for revocation and bench warrant form

designated Uinta County (Evanston), dated January

29, 1986 and filed February 7, 1986, included the

following attestation:

Robert Mayor, Probation and Parole Agent,

Department of Probation and Parole, being duly

sworn according to law, deposes and says that

he is the petitioner herein; that he has read

the above and foregoing Petition; that he knows

tne contents thereof; and that the same is true

- as he verily believes.

And in substance for revocation, the petition

stated:

3. That said Defendant has failed to maintain

contact with the Wyoming Department of

Probation and Parole and has changed his

address without prior notification.

4. That the Park County Attorney's office has

been notified of the above probaticn violations

and has recommended that the Defendant's

probation be revoked.

This petition, prepared at the direction of White,

was executed by Mayor and mailed to Park County as

the result of which the bench warrant was issued

and Cooney was consequently arrested in Bairoil and

jailed in Cody over 250 miles distant.

Unquestionably, paragraph three of the petition was

completely false. The factual issue denied i

resolution by this record was what occurred between §

Mayor and White before January 29, 1986 and

thereafter before February 7, 1986 and did either

or both know where Cooney was and what he was doing

as information clearly available to both he Rawlins

and Riverton parole offices. If they did know, I

ask why was the perjurious form signed and why was

continued action taken for probation revocation?

Additionally on this record, one wonders why the

~> Ff

IV.

PROBATION REVOCATION PROCESS

The Wyoming statute providing for

revocation was, in its explicit terms,

obviously not applied in context or intent

for the arrest and incarceration of Cooney.

(a) Where supervision of a probationer,

parolee or other conditional releasee

is being administered pursuant to

directive of any court having criminal

or juvenile jurisdiction, the board of

parole, any of the state's corre.tional

institutions or the state probation and

parole agents shall notify the

appropriate court, board or institution

whenever, in their view, consideration

should be given to retaking or

reincarceration for a violation of

probation, parole or other conditional

release. Prior to notification, a

hearing shall be held in accordance

same form of an order to show cause was not used as

had previously been prepared rather than the bench

warrant.

with this act [§§ 7-13-409, 7-13-4100]

within a reasonable time, unless a

hearing is waived by the probationer,

parolee or conditional releasee. The

appropriate officer or agents shall as

soon as practicable, following

termination of any hearing, report to

the court, board or correctional

institution, furnish a copy of the

hearing record, and make

recommendations regarding the

disposition to be made of the

probationer, parolee or conditional

releasee by the court, board or

correctional institution. Pending any

proceeding pursuant to this section,

the appropriate agents may take custody,

of and detain the probationer, parolee

or conditional releasee involved fox a

reasonable period of time prior to the

hearing and, if it appears to the

hearing officer or agents that retaking

or reincarceration is likely to follow,

for such reasonable period after the

hearing or waiver as may be necessary

to arrange for the retaking or

reincarceration.

(b) Any hearing pursuant to this

section may be before the state

probation and parole officer, his

deeigneves hearing officer or any other

person authorized pursuant to the laws

of this state to hear cases of alleged

probation, parole or conditional

release violations, except that no

hearing officer shall be the person

making the allegation of violation.

pursuant to this act [§ 7-13-4093, 7-13-

410], the probationer, parolee or

conditional releasee:

(i) Shall have reasonable notice

in writing of the nature and

content of the allegations to be made

-eV

including notice that its purpose

is to determine whether there is

probable cause to believe that he has

committed a violation that may lead

to a revocation of probation, parole

or conditional release;

(ii) Shall be permitted to consult

with any persons whose assistance he

reasonably desires, prior to the

hearing;

(iii) Shall have the right to

confront and examine any person who

has made allegations against him,

unless the hearing officer determines

that the confrontation would present

a substantial present cr subsequent

danger of harm to the person or

persons;

(iv) May admit, deny or explain

the violation alleged and may present

proof, including affidavits and other

124

evidence, in support of his

contentions.

(d) A record of the proceedings

shall be made and preserved either by

stenographic means or through the use

of a recording machine.

W.S. 7-13-409 (1977) (renumbered in 1987 to

W.S. 7-13-408). Simply stated, no hearing by

the executive agency, the state probation

and parole officer was ever provided. If

Justice Powell was correct in Gagnon v.

Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756,

36 L.Ed.2d 656 (1973), there was no

requirement for the prosecution to become

involved in the non-adversary proceeding.

It is apparent that this court has

created a further pathway for probation and

parole revocation as a judicial revocation, ®

8 Nothing of record or in available literature

establishes a normal practice. C. Gless, Nebraska

Probation Revocation: A Primer, 68 Neb. L. Rev. 516

. the usual practice 1s by petition to revoke

and notice to appear. Most alleged violators appear

voluntarily in response to the notice to appear.

Id at 521.

Knobel v. State, 576 P.2d 941 (Wyo. 1978),

in application of W.R.Cr.P. 33(f):

The court shall not revoke probation

PCE RE Oy

except after a hearing at which the

defendant shall be present and apprised>

of the grounds on which such action is

- proposed. The defendant may be admitted

to bail pending such hearing.

What is first found missing here is a

notice to appear without arrest, second was

any immediate court appearance by the

incarcerated defendant, and finally, anv

SOA WRENS MERON Ct

opportunity for consideration of bail

eqns

pending hearing. The only “conduct"

established for the prosecutor was first

suborning a perjured petition for

revocation; second, presentation to the

trial court of a false document; and

finally, denial of a bail arraignment for

release of the incarcerated individual.

Compare Knobel, 576 P.2d 941, where a bond

po a)

was posted. None of these functions? are

within the prosecutorial discretion even

within any Imbler gambit.

Actually, nothing is fo.nd in statute,

except by implication, that the office of

the county attorney represents the state

probation of lcer in revocation proceedings

where that office has a function or

responsibility for parole violation

revocation. There is no record that

determines White filed a motion for parole

revocation. State v. Reisch, 491 P.2d 1254

(Wyo. 1971). This case develops from an

executive department petition for revocation

under W.S. 7-13-409 (1977) and there was

apparently no order to show cause as

recognized in Murphy v. State, 592 P.2d 11S9

(Wyo. 1979), where other offenses became the

basis presented for revocation and not

—

9 Obviously, the intended sort of fairness addressed

in Knobel, where incarceration was limited to eight

days before the bond was established and the

probationer released, is not found here.

internal rule non-compliance which was

implicated here. See likewise Smith v.

State, 598 P.2d 1389 (Wyo. 1979). Weisser v.J

State, 600 P.2d 1320 (Wyo. 1979) cannot be |

compared since there, the petition was filed

by the department and not by the county

attorney and a hearing was held within six

days following arrest. It is interesting to

observe that in this official record, we do

not even have original probation office

records of activities or a copy of the

petition to revoke. (See, however, n.7,

supra.) See Mason v. State, 631 P.2d 1051

(Wyo. 1981), Rooney, J., specially

concurring. Clearly, revocation addressed

conditions and not other law violations.

This is peculiarly a function of the

probation department within which the proper

involvement of the county attorney is |

totally undisclosed. Not knowing what

documents exist, it is impossible to

determine whether a mailman could have

44029

equally served the same function as

performed by White, except not to convince

the probation officer to commit perjury. Not

even proper or official discretional

decision of the prosecutor is authenticated

in this record.

Within the facts of this misbegotten

occurrence, one also is called to question

White's authority and discretion to retain

Cooney in jail without bond or appearance

before a commissioner for thirty-eight days.

Non-release in itself is separate

misconduct--moral and legal. Sullivan v. Los

Angeles County, 12 Cal.3d 710,117 Cal.Rptr.

241, 527 P.2d 865 (1974). Intrinsic to

either the judicial or administrative

revocation process is an immediate

opportunity for hearing or establishment of

reasonable bail. See Weisser, 600 P.2d 1320

and Knobel, 576 P.2d 941.

Vv.

ALTERNATIVE REMEDIES AS JUSTIFICATION FOR

NON-LIABILITY, PROFESSIONAL DISCIPLINE

OR CRIMINAL PROSECUIION

Before I attenuate the anger that

morality requires by discussion of why the

majority is wrong on the law in absolving

serious prosecutorial misconduct from

financial responsibility for damage,

reference is required to the alternative

remedies gratuitously advanced, as buried in ;

footnote 7 of the majority opinion,

suggesting disciplinary action and criminal

prosecution. The State, for the purposes of

a motion to dismiss defense, filed a

pleading which has the effect of admitting

suborning perjury and execution of a

document under a false oath by a public

official on January 29, 1986. That was now

four years ago. One would search in vain for

either criminal prosecution or disciplinary

action. White is shown in the current bar

directory to be a member of the Wyoming

State Bar and now a resident in Bakersfield,

California. Wyoming State Bar Directory

127

(1990). Mayor is no longer with the

Department of Probation and Parole.

The most disturbing part of the

majority opinion is the dissertation

considering rather than providing economic

repayment to the victim for damage sustained

that alternative remedies for injury

“responsibility exist. It is argued that a

chill upon proper perforrnance is created by

the requirement to defend against obligation

to repay for damage inflicted by malevolent

Or malicious conduct. Otherwise, it is

suggested that if the immunity is not

provided, government cannot work. Immunity

is, of course, only excused irresponsibility

and denied liability for intentional

wrongdoing in the use of a public office.

Compare Foster, 547 N.E.2d 478, if we are

now also goiiug to apply that same philosophy

to similar misconduct of the private

attorney.

-a WS

These alternative remedies providing

responsibility to the immunized public

official for his bad conduct in order to

avoid the chilling result of monetary

responsibility would substitute either

criminal prosecution or professional

sanction as the punishment. Kentucky Bar

Ass'n v. Lovelace, 778 S.W.2d 651 (Ky.

1989). The overpowering speciosity arises

with a concurrent knowledge that in the

justice delivery system, these alternatives

are seldom if ever actually applied. It is

an unacceptable fraud on the public since

prosecutors seldom prosecute prosecutors and

bar associations infrequently take punitive

action to correct prosecutorial suborned

perjury. Compare State v. Ramseur, 106 N.J.

123, 524 A.2d 188, 290 (1987), where the New

Jersey Supreme Court gave notice that it

would not hesitate to refer breaches of

prosecutors (death case) to bar disciplinary

committees. See People v. Green, 405 Mich.

a oe

seca ss ae see

SPOS AP CROAT ALS erg

EOL” SEALE RT TEE OO

+27

273, 274 N.W.2d 448 (1979). See, however,

Matter of Price, 238 Kan. 426, 709 P.2d 986

(1985) for more than conduct in just one

case, but see State v. Smith, 245 Kan. 381,

781 P.2d 666 (1989).

This case provides an ordinary but

predominating example of non-action. Before

we consider what should have been done, we

only prove the rule by recognition that the

alternatives are only idle words not to be

pursued as a remedy for the admitted evil

perpetrated by the public official upon the

wronged but hapless private individual. We

do raise, however, question whether these |

alternatives, involving either prosecutor

conviction and incarceration for a criminal

charge and/or suspension or disbarment to

practice the profession of law which is the

public official's livelihood, if really

existent and pursued, would be preferred by

the public official in avoiding damage

4 9V

responsibility. 1°

This analysis, if we

accept the generally quoted concept of Judge

Learned Hand in Gregoire v. Biddle, 177 F.2d5

579 (2nd Cir. 1949), cert. denied 339 U.S. '

101, review of the many current prosecutorial

misconduct absolute immunity cases, it is

incomprehensible to me why the charged individual §&

permits defenses on a motion to dismiss or judgment

on the pleadings so that answering statements are

not at least established in the record as a factual

defense to the allegation of misbehavior. In this

case, either or both the prosecutor and the

probation officer may have some answers to the

conspiracy to perpetrate perjury which caused not

only arrest, but also retention of the innocent .

victim. By emplacing defense on a motion to dismiss &

immunity, funher perjury may have been avoided, but

the other side of the story is lost from the i

factual record.

I do not find any conceivable excuse for the

retention of Cooney in jail for thirty-eight days

except ignorance, stupidity or simple malicious

wrongdoing, but there may be some justification for®

the action initially taken as a result that perhaps

only one if not both of the perpetrators are not

perjurers and liars or not both. It may have even

been a case of negligence and bad memory. Within

the nature of the record and the majority opinion,

we are required to assume the worst and will never

know, factually, otherwise. I cannot imagine an

attorney permitting decision on a rccord where

there is unchallenged attacks on his character and

honor to remain unanswered by permitting the

intervention of the unwholesome armament of

absolute immunity (unless the aliegations are

true). Ignored were both the Wyoming statute and

also the United States constitutional Gagnon right

to preliminary hearing and bond.

131

949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950),

provides the only means of punishment for

public officials who have been wrongful in

their performance of responsibilities of a

criminal complaint or professional

discipline instead of economic repayment for

the unjustified damage.

In the simplest terms within a motion

to dismiss status, the facts presented could

show criminal conduct where the assistant

prosecuting attorney, White, told the

probation officer, Mayor, to sign and swear

to a false statement. The false affidavit

was intentionally prepared by the probation

officer in agreement with the prosecuting

attorney. Then by direction and agreement,

an affidavit was executed by Mayor. This

perjurious document was next used by the

prosecution in court filing to secure the

issuance of an arrest warrant from the trial

court. Pursuant to the conspiratorial

agreement and planned use of the perjurious

iat

testimony, Cooney was arrested and held in

jail for thirty-eight days without an

opportunity for bond. The prosecuting

attorney was advised by a third party that

Cooney was innocent of any wrongdoing, but

the conspiratorial conduct continued in

denying an appearance before a court or

arrangements for bond until the trial court

i he. pen AT ARE dick alas aisideci hah

hearing was finally provided and a release

order obtained.!! what crimes do the 4

foregoing course of conduct infold? Clearly,

perjury is first implicated, W.S. 5-301,

against either or both of the participants,

but additionally available for multiple

charging, W.S. 5-107, official misconduct;

W.S. 5-202, accessory after the fact; W.S.

5-305(b). obstruction or impedance of the

administration of justice; W.S. 2-203, false

imprisonment; and, of course, the inchoate

lMuch or even most of the foregoing may be subject

to answer or response, but the use of immunity as é

defense rather than a denial of wrongdoing denies

assessment of a factual dispute.

offenses, W.S. 1-303, conspiracy and W.S. l-

201, aiding and abetting as an accessory

+12

before the fac If exposure to damage

le (a) A person commits perjury if, while under a

lawfully administered oath or affirmation, he

knowingly testifies falsely or makes a false

affidavit, certificate, declaration, deposition or

statement, in a judicial, legislative or

administrative proceeding in which an oath or

affirmation may be required by law, touching a

matter material to a point in question.

(b) Perjury is a felony punishable by

imprisonment for not more than five (5) years, a

fine of not more than five thousand dollars

($5,000.00), or both.

W.S. 6-5-301 e

(a) A public servant or public officer commits

a misdemeanor punishable by a fine of not more than

fve thousand dollars ($5,000.00), if, with intent

to obtain a pecuniary benefit or maliciously to

cause harm to another, he knowingly:

(1) Commits an unauthorized act relating

to his official duties;

(11) Refrains from performing a duty

imposed upon him by law; or

(111) Violates any statute relating to

his official duties.

(b) A public officer commits a misdemeanor

punishable by a fine of not more than seven hundred

fifty dollars ($750.00) if he intentionally fails

to perform a duty in the manner and within the time

prescribed by law.

134

W.S. 5-107.

ror So aque aa) O weme 8

(a) A person is an accessory after the fact if,

with intent to hinder, delay or prevent the

discovery, detection, apprehension, prosecution,

detention, conviction or punishment or another for

the commission of a crime, he renders assistance to

the person.

(b) An accessory after the fact commits:

(i) A felony punishable by imprisonment |

* for not more than three (3) years, a fine of

not more than three thousand dollars

($3,000.00), or both, if the crime is a felony

and the person acting as an accessory is not a

relative of the person committing the crime;

(11) A misdemeanor punishable by

imprisonment for not more than six (6) months,

a fine of not more than seven hundred fifty

dollars ($750.00), or both, if:

(A) The crime is a felony and the person

acting as an accessory is a relative of the

person committing the crime;

(B) The crime is a misdemeanor and the person

acting as an accessory is not a relative of

the person committing the crime; or

(111) No violation of the crime is a

misdemeanor and the person acting as an

accessory is a relative of the person

committing the crime.

W.S. 6-5-202.

(b) A person commits a misdemeanor punishable

by imprisonment for not more than one (1) year, a

fine of not more than one thousand dollars

135

claims chill, then this is the criminal

responsiveness as the alternlative

suggested. It is not a chill, it is

pneumonia and virus flu combined.

Next for inquiry is the disciplinary

code and ethical conduct "answer." First, of

course, conviction of a felony requires an

automatic suspension of the practice of law.

Disciplinary Code for the Wyoming State Bar,

Rule XVI. Also implicated as a standard of

conduct, we are required to address rules of

professional conduct for the lawyer:

Preamble: A Lawyer's Responsibilities

($1,000.00), or both, if, by threats or force, he

obstructs or impedes the administration of justice

in a court.

W.S. 6-5-305(b).

(a) A person is guilty of false imprisonment if

he knowingly and unlawfully restrains another so as

to interfere substantially with his liberty.

(b) False imprisonment is a misdemeanor

punishable by imprisonment for not more than one

(1) year, a fine of not more than one thousand

dollars ($1,000.00), or both.

W.S. 6-2-203.

i135

are prescribed by law for the

punishment of the principal.

1-201.

[12] Lawyers play a vital role in the

preservation of society. The

fulfillment of this role requires an

understanding by lawyers of their

relationship to our legal system. The

Rules of Professional Conduct, when

properly applied, serve to define that

relationship.

Rules for Professional Conduct for Attorneys

at Law.

A lawyer shall not bring or defend

a proceeding, or assert or controvert

an issue therein, unless there is a

basis for doing so that is not

frivolous, which includes a good faith

argument for an extension, modification

Or reversal of existing law. A lawyer

for the defendant in a criminal

proceeding, or the respondent in a

139

proceeding that could result in

incarceration, may nevertheless so

defend the proceeding as to require

that every element of the case be

established. The signature of an

attorney constitutes a certificate by

him that he has read the pleading,

motion, or other court document; that

to the best of his knowledge,

information, and belief, formed after

reasonable inquiry, it is well grounded

in fact and is warranted by existing

law or a good faith argument for the

extension, modification, or reversal of

existing law; and that it is not

interposed for any improper purpose

such as to harass or to cause

unnecessary delay or needless increase

in the cost of litigation.

Rule 3.1, Rules for Professional Conduct for

Attorneys at Law.

(a) A lawyer shall not knowingly:

140U0

(1) make a false statement of

material fact or law to a tribunal;

(2) fail to disclose a material

fact to a tribunal when disclosure is

necessary to avoid assisting a

criminal or fraudulent act by the

client;

(3) fail to disclose to the

tribunal legal authority in the

controlling jurisdiction known to the

lawyer to be directly adverse to the

position of the client and not

disclosed by opposing counsel; or

(4) offer evidence that the lawyer

knows to be false. If a lawyer has

offered material evidence and comes

to know of its falsity, the lawyer

shall take reasonable remedial

meas 8.

(b) uie duties stated in paragraph

(a) continue to the conclusion of the

proceeding, and apply even if

141

compliance requires disclosure of

information otherwise protected by Rule

1.6.

evidence that the lawyer does not know

to be false but reasonably believes is

false.

(d) In an ex parte proceeding, a

lawyer shall inform the tribunal of all

material facts known to the lawyer

which will enable the tribunal to make

an informed decision, whether or not

the facts are adverse.

Rule 3.3, Rules for Professional Conduct for

Attorneys at Law.

The prosecutor in a criminal case

shall:

(a) refrain from prosecuting a

charge that the prosecutor knows is

not supported by probable cause;

(b) prior to interviewing an

accused or prior to counselling a law

+ ste

enforcement officer with respect to

interviewing an accused, make

reasonable efforts to assure that the

accused has been advised of the right

to, and the procedure for obtaining,

counsel and has been given reasonable

opportunity to obtain counsel;

unrepresented accused a waiver of

important pretrial rights, such as

the right to a preliminary hearing;

(d) make timely disclosure to the

defense of all evidence or

information known to the prosecutor

that tends to negate the guilt of the

accused or mitigates the offense,

and, in connection with sentencing,

disclose to the defense and to the

tribunal all unprivileged mitigating

information known to the prosecutor,

except when the prosecutor is

143

relieved of this responsibility by a

protective order of the tribunal; and

(e) exercise reasonable care to

prevent investigators, law

enforcement personnel, employees or

other persons assisting or associated

with the prosecutor in a criminal

case from making an extrajudicial

statement that the prosecutor would

be prohibited from making under Rule

3.6.

Rule 3.8, Rules for Professional Conduct for

Attorneys at Law.

In the course of representing a client

a lawyer shall not knowingly:

(a) make a false statement of

material fact or law to a third

person; or

(b) fail to disclose a material

fact to a third person when

disclosure is necessary to avoid

assisting a criminal or fraudulent

~wW—-~

[1] A lawyer is a representative of

clients, an officer of the legal system

and a public citizen having special

responsibility for the quality of

justice.

(a) A person is guilty of

conspiracy to commit a crime if he

agrees with one (1) or more persons

that they or one (1) or more of them

will commit a crime and one (1) or more

of them does an overt act to effect the

objective of the agreement.

(b) A person is not liable under

this section if after conspiring he

withdraws from the conspiracy and

thwarts its success under circumstances

manifesting voluntary and complete

renunciation of his criminal intention.

in the county where the agreement was

entered into, or in any county where

any act evidencing the conspiracy or

furthering the purpose took place.

1-303.

(a) A person who knowingly aids or

abets in the commission of a felony, or

who counsels, encourages, hires,

commands or procures a felony to be

committed, is an accessory before the

fact.

(b) An accessory before the fact:

(i) May be indicted, informed

against, tried and convicted as if he

were a principal;

(44) May be indicted, informed

against, tried and convicted either

- before or after and whether or not the

principal offender is indicted,

informed against, tried or

convicted; and

| (iii) Upon conviction, is subject

to the same punishment and penalties as

act by a client, unless disclosure is

prohibited by Rule 1.6.

Rule 4.1, Rules for Professional Conduct for

Attorneys at Law.

I would wonder in consideration of the

concept of chilling honest performance of

professional responsibilities whether White

Or Mayor would prefer testing their

contended vwrongful conduct on a damage

platform, and particularly so if protected

by insurance or someone else's financial

responsibility, or be faced with the fi

permanency embodied in criminal prosecution

or professional disenfranchisement. The

answer is, of course, that the alternatives

are almost never and certainly seldom ever

really considered and, if considered, never

anticipated to be an actual risk. That

parenthetical question emerges-how often is

a prosecutor prosecuted or censured for a

wrongful arrest or malicious prosecution?

The answer is, of course, next to never.

We are afforded in this wisdom by events and

circumstances that occurred in the earlier

litigation resulting in this court's

decision in Blake, 651 P.2d 1096. Anger

13an exception is found in Ramsey v. Board of

Professional Responsibility of Supreme Court of

Tennessee, 7/1 5.W.ed 11 enn.), cert. denied-

ode , 110 S.Ct. 278, 107 L.Ed.2d 258

(1989), where the district attorney was suspended

for 180 days, with 135 days of that sanction

suspended. The case involved fighting with and

contempt for the-trial judge, but nothing as

serious as alleged here.

14540 interesting facets of the Blake opinion are

immediately apparent. First, the case was not a

civil rights action, 42 U.S.C § 1983, in appellate

submission since that issue had not been submitted

to the jury within the verdict obtained.

Additionally, in the opinion, this court made

reference that "[t]he evidence is in aispute

x * *," Blake, 651 P.2d at 1098. This is directly

contrary to our normal appellate rule where, with

the entry of a jury verdict, the evidence

supporting the successful participant should only

be considered. In Blake, the prosecutor and her

friend, the investigator, were extremely angry

because of one adverse jury verdict by acquittal

and another by mistrial. Giving vent to anger,

damaged ego and adverse professional reflection, a

victim was sought to assuage anger and erase a

blight on her reputation. Unfortunately, the victim

was Thomas Rupe who had served on the juries. The

Wyoming statute then in effect provided a near

automatic pardon result after successful conduct of

criminal sentence confinement. Any casual review of

the Wyoming statutes would have alerted the

a .

and ego not to be assuaged by legal

knowledge or morality, the prosecutor in

Blake, through her friend the investigator,

arranged to file charges challenging Rupe by

criminal attack and press release

dissertation as a response to a horror of a

jury trial acquittal. After arrest, the

criminal charges were appropriately

dismissed in preliminary hearing. The

lawsuit which was filed, although initially

involving a civil rights proceeding (Section

1983), went to the jury on malicious

prosecution where the jury cbviously adopted

the testimonial perspective of the plaintiff

in awarding a jury verdict against the

prosecutor of $40,000 actual damage and

$105,000 punitive damage and $20,000 actual |

damage and $35,000 punitive damage against

the investigator. Blake, 651 P.2d at 1097-

prosecutor to the state of Wyoming. Unfortunately,

however, Rupe, who had once been convicted,

appropriately answered the questions asked that he

was Clearly entitled to sit as a juror since, with

pardon, his citizenship had been restored.

98. This court, in a belated appeal on an

immunity absolution, absolved the vicious,

malicious and wrongful conduct which had

clearly incensed the civil jury.

In Blake, 651 P.2d 1096, this court

stretched inordinately in the belated appeal

to reverse the jury verdict. The problem,

however, continues if we assess realities to

the available alternatives. The reader

should not be surprised that the prosecutor

did not prosecute herself criminally nor

prosecute the investigator. Members of this

court are, of course, lawyers and may be

themselves insulated from responsibility by

appellate posture from required action

pursuant to Rule 8.3, entitled Reporting

Professional Misconduct, as a particularly

important provision of the Rules of

Professional Conduct for Attorneys at Law.

Recognizing that this court makes final

decisions on disciplinary proceedings and

should not norrnally file complaints, I

148

would only ask if the alternatives of

prosecution or professional discipline are '

intended to be anything but non-applied .

justifications for denial of economic

justice. If that is not true, then where

does the trial court, the state bar itself

and particularly the office of the attorney

general come to grips with the

15 Members of

responsibilities of Rule 8.3.

the office of the attorney general are also

subject to the constraints and requirements

of the Rules of Professional Conduct for

15 "(a) A lawyer having knowledge that another

lawyer has committed a violation of the Rules of

Professional Conduct that raises a substantial

question as to that lawyer's honesty,

trustworthiness or fitness as a lawyer in other

respects, shall inform the appropriate professional

authority."

(b) A lawyer having knowledge that a judge has

committed a violation of applicable rules of

judicial conduct that raises a substantial question

as to the judge's fitness for office shall inform

the appropriate authority.

information otherwise protected by Rule 1.6.

Rule 8.3, Rules for Professional Conduct for

Attorneys at Law.

149

Attorneys at Law as members of the Wyoming

State Bar." /6

l6ynat this means is that the blase justification for

denial of economic responsibility cannot be

sustained against the prosecuting attorney unless

explanation is provided why the alternatives of

criminal prosecution or disciplinary action were

not pursued. Admitting in pleading that the

prosecutor may have suborned perjury provides a

heavy burden of other responsibilities to the

membership of the office of the attorney general in

performance of correlative responsibility as an

employee of the law enforcement executive branch

and as a lawyer within each participant's

disciplinary responsibilities as established by the

rule adopted by this tribunal. There is just

nothing quasijudicial about committing breaches of

legal ethics or directly participating in the

commission of perjury. A motion to dismiss is ill-

mannered to provide an escape from all

responsibilities for contended malfeasance, malice

or criminal conduct.

In defining this absolution from responsibility for

misconduct as quasi-judicial, we are faced with a

strongly stated characterization of American law by

Gray who was a Canadian:

The law relating to judges is at the root of

many of the problems aflicting the law of

officer's tort liability. The judge has truly

been the pampered child of the law, for he is

among those privileged few who are allowed to

fulfill their duties not only stupidly, or

negligently but wilfully, maliciously,

corruptly or just plain dishonestly, yet escape

liability to those damaged by his conduct. A

cynic might be forgiven for pointing out just

who made this law. However, it would be to give

the judges much less than their due to suggest

150

that self-protection is the clue which explains §

the theory of judicial immunity. j

Before attempting an explanation of this

special status, it is wise to note there are

limits to it. First of all it is not the

personal immunity of the King, who is in fact

absolutely immune from the reach of the courts

for any and all tortious conduct. Rather the

privilege of the judge extends only to acts

done in his judicial capacity. So if, on the

street, he punches a citizen in the nose, or

runs him down in his automobile, if he has

another maliciously prosecuted, or if he keeps

a leaky dam that floods his neighbor, the

judge, unlike the King, will be liable for

damages. Second, even if he is acting ina

judgelike capacity, the matter of jurisdiction

may arise, depending on what category of judge

he be, to dilute his immunity.

Finally, while it is littie solace to the

individual injured thereby, the judge is open

to possible criminal prosecution and liable to

impeachment or removal for his mala fide or

corrupt acts.

However, it is ordinarily a complete answer to

a complaint charging tortious conduct to a

judge for him to answer, “I am a judge and the

act complained of was done while I acted as a

judge within my proper jurisdiction." Suggested

rationale of this sweeping immunity are

numerous. Prof. Edward Jennings' leading

article suggests no less than nine reasons that

have combined to establish it. Yet, none are

truly satisfactory as explanations of why a

person alleging injury by a corrupt act should

be barred from compensation without any

consideration on the merits of the case.

Gray, supra, 47 Cal. L Rev. at 309-10

ootnotes omitted and citing Jennings, Tort

LiabI ty of Aa ye Officers, 21 Minn.

L Rev.

151

A standard of morality is assumed for

insulation of the public official

(prosecutor) for liability from

constitutional injury that cannot be

constitutionally constrained within the i

function versus conduct dichotomy. A clear i

recognition is afforded by Ryland v.

Shapiro, 708 F.2d 967 (Sth Cir. 1983), where

allegations involved prosecutorial

falsification of death certificate and a

cover up of a murder. "Characterizing these

actions as akin to those traditionally

undertaken by officers of the court (which

would entitle them to assert absolute

immunity) would make a mockery of the

judicial system." Id. at 975. I would

likewise reflect that conspiracy to and

suborning perjury for issuance of a

probation revocation warrant is no less a

mockery of both the judiciary and the

lawyers who serve with distinction as the

state's prosecutorial attorneys. Control of

152

the unusual misconduct promotes both the

image and the justification for the entire

profession. Id. at 976.

[Claims of mental and emotional

distress, if proven, can support an

award of compensatory damages. * * *

Moreover, the societal interest in

deterring or punishing violators of

constitutional rights supports an award

of punitive damages even in the absence

of actual injury. * * * Finally, an

award of nominal damages may support an

award of attorney's fees under section

1988.

Id. at 976.

The federal court creation of immunity

to carve out an exception to Section 1983

liability for prosecutorial violation of an

individual's civil rights, although very new

in time in adjudicatory history, now has a

complex definitional outer perimeter. In

concept, it is de med as the core proceeding

for prosecution requiring the application of

the advocate's particularized

responsibility. The broad language used

obviously implemented to similarly continue

to justify judicial immunity belies the

necessity to confine and characterize where

the advocate loses his mantle in collateral

functioning. In the cases, words get in the

way of reasoning and logic.

The principle of justified immorality

for the prosecutor by the beneficial

insulation of absolute immunity is stated in

Demery v. Kupperman, 735 F.2d 1139, 1144

(9th Cir. 1984), cert. denied 469 U.S. 1127,

105 S.Ct. 810, 83 L.Ed.2d 803 (1985):

The fact that inducing false testimony

is wrongful and indefensible is not

relevant to the question whether

immunity attaches. Underlying the

doctrine of absolute immunity is a

recognition that the advancement of

broader public policies sometimes

154

requires that concededly tortious

conduct, no matter how reprehensible,

go unremedied, at least by means of a

civil action for damages.

In my unwillingness to accept this standard

of conduct for Wyoming lawyers, one is

called to wonder when the author of the

opinion last read the statutes of the State

of California, the federal code relating to

crimes which can be committed, even by

public officials, and the code of ethics

which relate both to judges and lawyers. See

ABA Code of Judicial Conduct § 3D(2)

(Discussion Draft Revisions May 1, 1989),

which states:

A judge having knowledge that a lawyer

has committed a violation of the Rules

of Professional Conduct * * * should

take appropriate action and, if the

violation raises a substantial question

as to the lawyer's honesty,

trustworthiness or fitness as a lawyer

155

in other respects, shall inform the

appropriate authority.

See also the comparable version found in

Wyoming's Code of Judicial Conduct, 3B(3)

and Commentary (1979):

(3) A judge should take or

initiate appropriate disciplinary

measures against a judge or lawyer for

unprofessional conduct of which the

judge may become aware.

* * * Disciplinary measures may

-include reporting a lawyer's misconduct

to an appropriate disciplinary body.

One would also wonder, if looking at

the examination of the next seated applicant

during the admission examination is cause

for a lifetime denial of opportunity to

practice law, Application of Corrigan, 47

Ohio St.3d 32, 546 N.E.2d 1315 (1989), what

would be the proper relative responsibility

for the wrongful and indefensible conduct

recited in Demery, 735 F.2d 1139?

My justification for mucking through

the morass of the law of alleged

governmental agent misconduct and judicial

selfjustification as defined first for

Section 1983 when applied in Wyoming and

secondly for the Wyoming Constitution when

applied in Wyoming is to establish some

boundary criteria. Analysis requires two

different resolutions since a character of

lawyer advocate conduct sanitized by the

federal courts cannot necessarily be

acceptable in the state judiciary where this

court, constitutionally, has the primary

responsibility for the application and

preservation of the Wyoming Constitution,

supervision of the Wyoming practice of, law

and the general responsibility for the

justice delivery system within the three

branches of government pursuant to Wyo.

Const. art. 2, § 1, Distribution of Powers.

Consequently, the standards of behavior for

lawyers and advocacy is the direct

157

responsibility of this court and, as such,

is identically applicable not only to

lawyers in private practice, but also to

governmental lawyers in advocacy in behalf

of the state of Wyoming in general,

prosecuting attorneys in representation of

the state for criminal proceedings and the

defense bar in criminal cases who are state

agents by virtue of participation under the

public defender program.

VI.

WHY THE MAJORITY IS WRONG

I find the majority wrong first in its.

application of this case to Section 1983

federal standards and more expressly wrong

about standards of advocacy conduct

acceptable within the Wyoming Constitution.

Finally, I assess judicial error in ignored

direct responsibility for the state

constitution and its preservation.

158

In analysis, we need to repeat the

factual scenario with which this case is

elucidated by a motion to dismiss status.

1. A knowingly perjurious statement in

official form was prepared by a parole

officer.

2. The perjured statement was knowingly

prepared by the parole officer at the

direction of the assistant county attorney.

3. The document was prepared within the

jurisdiction of the parole officer to

accomplish the arrest and confinement of a

persen on parole who was not within the

jurisdictional responsibility of that

particular parole officer.

4. The parole officer sent the perjured

document to the prosecuting attorney for the

prosecuting attorney's purpose in filing an

order

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