# Appendix — Cooney v. White

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0969%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 1201

## Text

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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

35

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

r=
=.

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).

6

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

10

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

WO Pab SDR tte

et A Acc th Mh ce Rte tt

ee ee een

11

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

12

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

13

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

>.

14

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,

a at Et IA a? Pe nr

15

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

16

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

17

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

P -— 4
18 |

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

20

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.

21

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

22

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,"

23

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"

24

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

:

ae cnn ermal

TO ee et ne We ee

Se SPP

25

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

26

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

——

ae ND Can ena ttt Dts Anata KA ae a —

DD te ie Ot aie RE AAD Ne lagen ll Ree Re Smt ee at AR Be

ait Lilie aH TPS ts Ss

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.

92

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

93

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.

94

URBIGKIT, Justice, dissenting.

I.
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,

95

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.

96

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).

97

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 :

99

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.

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 |

i
;

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.

ye
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.

(c) With respect to any hearing
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.

aS

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

te

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.

i

(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

(C) The principal is a minor.

(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.

(c) A lawyer may refuse to offer
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;

(c) not seek to obtain from an
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.

(c) A conspiracy may be prosecuted
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

14

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.

i

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.

(c) This Rule does not require disclosure of
information otherwise protected by Rule 1.6.

Rule 8.3, Rules for Professional Conduct for
Attorneys at Law.

:
A

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

ie

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 to secure an immediate arrest and a
subsequent revocation of probation.

5. The prosecuting attorney knowingly

filed the perjured document in order to, and

159

did, secure a warrant for the arrest of the
damaged individual.

6. The individual was arrested and
taken to the jail in Cody.

7. The prosecuting attorney was
advised that the individual should be
released since the proceeding was improper.

8. Without hearing or appearance before
any member of the judiciary, the individual
was held in jail for thirty-eight days
before appearance and release by judicial
action.

If these facts are accurate in addition
to clear felonies committed by both the
parole officer and the prosecuting attorney
plus serious ethical misconduct of various
kinds by the prosecutor, there should be no
doubt of a constitutional violation of a
protected right under the Wyoming
Constitution guaranteed to Cooney. I do not
believe that even if the federal courts

generally countenance commission of felonies

160

by prosecutors, cf. United States v. Omni

Intern. Corp., 634 F.Supp. 1414 (D.Md.

1986), the outer limits of the immunity
umbrella would be extended to the
prosecutor's solicitation of the
preparation, execution and acknowledgement
of a false government document by another
governmental official.

I establish the external line even for
Section 1983 at a point later than when the
prosecutor directs and solicits the
execution of a false and perjurious document

before arrest and the initiation of

proceedings has ever commenced. Within this

continuum, even under Section 1983, the
prosecutorial conduct of White in initiation
and direction for document preparation to
secure arrest is not immunized when based on
facts included which were knowingly false
and perjurious. It is not believed that even
the federal courts will accept that

character oi felonious conduct by a public

161

official to be a core proceeding as an
advocate in the prosecuting of a criminal

case. Hampton v. Hanrahan, 600 F.2d 600 (7th

Cir. 1979), rev'd on other grounds 446 U.S.
754, 100 S.Ct. 1987, 64 L.Ed.2d 670, reh'g
denied 448 U.S. 913, 101 S.Ct. 33, 65
L.Ed.2d 1176, reh'g denied 448 U.S. 913, 101

S.Ct. 33, 65 L.Ed.2d 1177 (1980); Joseph v.

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

cert. denied 481 U.S. 1023, 107 S.Ct. 1910,

9S L.Ed.2d 516 (1987).

The second difference I take with the
majority is to ever extend immunity in
Wyoming where violation of the Wyoming
Constitution is considered for conduct which
is either criminal or constitutes a serious
violation of legal ethics by the
governmental official. In other words, I
will not accept immunizing, suborning
perjury, blackmail, alteration of documents,
etc. even if within the context of trial

preparation and presentation as a criteria

of the core proceeding. In this regard, I
would apply the same rule for defense
counsel representing the state in criminal
defenses, state's attorneys representing the
state in any general litigation, and the
prosecuting attorney representing the state
in criminal proceedings.
We note, however, that this cloak of
immunity is limited to the attorney's
performance of regular advocacy
functions, and like the immunity
afforded prosecutors, does not extend
to intentional misconduct accomplished
outside of the scope of the attorney's
function as an advocate for the state.
See Imbler, 242 U.S. at 429, 96 S.Ct.

at 994; Tower v. Glover, 467 U.S. 914,

923, 104 S.Ct. 2820, 2826, 81 L.Ed.2d
758 (1984) (state public defenders are
not afforded absolute immunity for
intentional misconduct by virtue of

alleged conspiratorial action which

deprives their clients of federal

rights). The immunity envisioned by the
common law, and discussed by the
Supreme Court, attaches only to those
activities within counsel's normal
duties as an advocate for his or her
client. When an attorney goes beyond
those boundaries and commits an act of
intentional misconduct, the protections
of absolute immunity no longer apply.
Tower, 467 U.S. at 921, 104 S.Ct. at

2825. See Williams v. Hartje, 827 F.2d

1203, 1208-10 (8th Cir. 1987) (The
advocacy function entails preparatory
and other activity outside of the
courtroom undertaken "within the role
of advocate." In drawing the line
between absolutely immune and other
activities, the important consideration
is not whether the act was one which

could be done only by an advocate but

164

whether an act is closely related to

the role of the advocate. )
Murphy, 849 F.2d at 1105.

I argue that this court should not
adopt the Imbler litany of excused
misconduct where criminal or serious ethical
misconduct exists, except to the most
confined extent required to apply federal
criteria to the federal statute and then
only to the Section 1983 claim.
Consequently, this court is in error in
extending the -assumed Imbler immunity to a
state responsibility under the state
constitution.

There is yet a third reason why the
majority is in error within these ,
particularized facts. The statutory
provision for probation revocation is not a
direct prosecuting attorney responsibility.
Admittedly this court has created a judicial
revocation process independent of statute

where the prosecutor becomes a direct

165

player. However, in this case, the
revocation proceeding chosen was statutory
and, as such could have — processed
without any involvement of the prosecuting
attorney through parole officer direct
filing. This was not a prosecution where the
prosecuting attorney had sole
responsibility. Consequently, here, that
Park County official only served as an
adviser and volunteer assistant in a
proceeding initiated by a state office and
official for which he did not necessarily
have to take any direct responsibility. I do
not accept contention that the prosecuting
attorney has immunity in telling the parole
officer to prepare, sign and swear to a
false document which, within the parole
officer's responsibility, will serve to
obtain the incarceration of someone who both
participants know is not at fault or subject

factually to probation revocation.

166

Consequently, for three reasons, the
majority is substantively in error. First by
extending Imbler beyond core proceedings;
second by extending the outer reaches of
Imbler to the Wyoming constitutional
protection; and third by extending Imbler to
a probation officer revocation document
where the prosecutor was not directly
responsible for providing the initial
action.

It is fair to rationalize that if
something like this ever occurred before,
and if it really did happen here, it will
not reoccur after this opinion. In 1989 and
1990, the lawyer disciplinary process of
Wyoming is more organizationally attenuated
to respond to the misconduct of the
profession and recognition has occurred for
the potential criminal responsibility when
an attorney participates in the preparation

of false documents. State v. Neilson,

Seventh Judicial District, Natrona County,

167

State of Wyoming. This case may not bring
justice or equity to Tom and Lora Cooney nor
even properly determine what did occur and
what responsibility did exist, but a message
should be indelibly communicated that if
civil liability responsibility is denied for
official misconduct of an egregious nature,

worse punishment may and should be provided.

168

VII.

ALTERNATIVE RIGHT FOR REGRESS WHEN A PUBLIC
OFFICIAL CAUSES DAMAGE IN VIOLATION OF THE
STATE CONSTITUTION

There is a basic reason why this court
is in error by affirming the dismissal of
the case by sustaining the motion to dismiss
without leave reserved to Cooney to file an
amended complaint. Admittedly, Cooney only
indirectly alleged facts which directs
attention to a course of conduct implicating
a violation of rights guaranteed by the
Wyoming Constitution. I would perceive that
with arguable violations of the United
States Constitution and consequent
disposition of the Section 1983 claim by a
motion to dismiss, Cooney should have been
reserved « further right to amend to protest
violations of his state constitutional
interests which could not have been }

substantively extinguished by the state tort

claims act which, in its terms, is not

169

addressed to a constitutional rights
violation.

The near magnetic attraction to the

federal judiciary, including categorically

the United States Supreme Court for

statism," over individual rights is here

personified in this occupational 17

immunity. This is not only in contravention

of Chief Justice John Marshall's directive

in Marbury v. Madison, I Cranch 137, 5 U.S.

137, 163, 2 &.Ed 60 (1803), in disregard of

English law precedent, but also in apparent

ignorance of world history even as more

recently provided by the saga of

17The delineation of immunity's relation to statism
is not original with me. See White v. State,
784 P.2d 1313 (Wyo. 1989), Urbigkit, J.,
dissenting. In addition to law journal -eferences,
see Davidson v. O'Lone, 752 F.2d 817, 839 (3rd
Cir. 1984), cert. granted 471 U.S. 1134, 105
S.Ct. 2673, ° 1985), aff'd 474 U.S.
344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), Gibbons,
J., dissenting. See also Meachulm v. Fano, 427
U.S. 215, 230, 96 S.Ct. 2532, 495 L.Ed.2d 451,
reh' denied 429 U.S. 873, 97 S.Ct. 191, 50
(fda 155 (1976), Stevens, J., dissenting. Man is
not a creature of the state; the state is a
creature of man.

170

totalitarian government emergence post-World

War I with disintegration of the old order.

Factually unjustified and precedentially

unsupported, except as an accelerating

growth, occupational immunity from

responsibility for injury defines primarily

only by its expansive growth any

justification for its intrinsic existence.

The comparable systematology within

government to human cancer is not

unnoticeable.

Governmental immunity or public
officer privilege rests on a faulty and
fallacious conceptual justification as only
recently growing like thistles on the
American jovernmental and judicial R
landscape. Error was initiated by judicial
creation of judicial immunity and followed
by that cancerous expansion as, for example
here, to the prosecutorial function as

pseudojudicial. The proper foundational
justification for non-liability of agents of

171

government arises from the discretional
nature of the responsibilities performed.

The judge's judicial decision, Pierson v.

Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d

288 (1967), cf. Pulliam v. Allen, 466 U.S.

522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984);
the parole board's release decision, Hurst

v. State, 698 P.2d 1130 (Wyo. 1985), cf.

Grimm, 564 P.2d 1227; the president's

national welfare decision, Nixon v.

Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73

L.Ed.2d 349 (1982); and the legislator's

legislative activities, Tenney v. Brandhove,

341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019,

reh'g denied 342 U.S. 843, 72 S.Ct. 20, 96

L.Ed. 637 (1951); Clear Lake City Water

Authority v. Salazar, 781 S.W.2d 347

(Tex.App. 1989), are properly protected from
litigative attack because of the nature of
the decisional responsibilities and not

because the officer holder has been given a

satel

172

stature above the constitution as the basic

law of society. 3
Exhaustive scholastic examination of
the institutional expansion of the
individualized privilege to harm without
responsibility within the government by the
general immunities, qualified and absolute,
has attracted comprehensive scholastic
analysis. The frustration and disdain of
writers for the adversarial effect of
immunity on individual rights is personified
by the titles. Representative writings not
otherwise specifically cited in this dissent

include Barrett, Police Practices and the

Law--From Arrest to Release or Charge, 50

Calif. L. Rev. 11 (1962); Beermann, ‘

Government Official Torts and the Takings

Clause: Federalism and State Sovereign

Immunity, 68 B.U.L. Rev. 277 (1988); Burke &

Burton, Defining the Contours of Municipal

Liability Under 42 U.S.C. § 1983: Monell

Through City of Canton v. Harris, 18 Stetson

-' See

L. Rev. 511 (1989); Eisenberg & Schwab, The

Reality of Constitutional Tort Litigation, i
72 Cornell L. Rev. 641 (1987); Gressman, The |

Unhappy History of Civil Rights Legislation,

50 Mich. L. Rev. 1323 (1952); Hundt, Suing

Municipalities Directhy Under the Fourteenth

Amendment, 70 N.W. U.L. Rev. 770 (1975);

Jaron, The Threat of Personal Liability

Under the Federal Civil Rights Act: Does it

Interfere with the Performance of State and

Local Government?, 13 Urb. Law. 1 (1981);

Kates & Kouba, Liability of Public Entities

Under Section 1983 of the Civil Rights Act,

45 So. Cal. L. Rev. 131 (1972); Mead, 42

U.S.C. § 1983 Municipal Liability: The

Monell Sketch Becomes a Distorted Picture,

65 N.C. L. Rev. 517 (1987); Schnapper, Civil

Rights Litigation After Monell, 79 Colum. L.

Rev. 213 (1979); Shapo, Constitutional Tort:

Monroe v. Pape, and the Frontier Beyond, 60

N.W. U.L. Rev. 277 (1965); Zagrans, "Under

Color of" What Law: A Reconstructed Model of

174

Section 1983 Liability, 71 Va. L. Rev. 499

(1985); Comment, Civil Rights. Malley v.

Briggs: Application to the Harlow Objective

Reasorableness Test to Section 1983

Liability for Police Officers, 29 Ariz. L.

Rev. 333 (1987); Comment, Oregon's

Discretionary Interpretation of

Discretionary Immunity, 22 Willamette L.

Rev. 147 (1986); Comment, Civil Rights:

Discarding Section 1983 Municipal Immunity--

Is That Enough? Monell v. Department of

Social Services, 98 S.Ct. 2018 (1978), 30 U.

Fla. L. Rev. 979 (1978); Note, Qualified

Immunity--Public Officials Will Lose

Qualified Immunity Where the Constitutional

Rights Were Clearly Established at the Time

of the Violation But Not For Violation of a

Statute or Requlation Unless the Statute or

Regulation Itself Creates the Protected

Right.--Davis v. Scherer (U.S. 1984), 34

Drake L. Rev. 873 (1984-85); Note, Monell v.

Department of Social Services: A Supreme

175

Court Adoption of Lower Court Exceptions,

1979 Utah L. Rev. 251 (1979); Note,

Municipal Liability Under Section 1983: The

Meaning of "Policy or Custom", 79 Colum. L.

Rev. 304 (1979); Note, From Monroe to

Monell: Eliminating Absolute Municipal

Immunity Under § 1983, 30 Mercer L. Rev. 747

(1979); Note, Limiting the Section 1983

Action in the Wake of Monroe v. Pape, 82

Harv. L. Rev. 1486 (1969); and Recent

Development, Lynch v. Cannatella: An

Inconsistent Application of Qualified

Immunity, 62 Tulane L. Rev. 820 (1988).

A couple of lines from Gressman, supra,
50 Mich. L. Rev. at 1358 (quoting To Secure
These Rights 149-173 (1947)), as a

distinction from the idealism of Marbury,

may be charismatic in description:
"([Ijn one sense, the actua
infringements of civil rights by public
Or private persons are only symptoms.

They reflect the imperfections of our

social order, and the ignorance and

moral weaknesses of some of our

people."

After assessment of this quantum of
research, analysis and composition, one has
cause to wonder where we are and why we got
here with privilege to injure--immunity from
responsibility as related to what Justice
Miller said just over a century ago in

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

196, 220, 1 S.Ct. 240, 27 L.Ed. 171 (1882):
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 the
lowest, are creatures of the law, and
are bound to obey it.

Most recent law journal and legal
periodical scholarship include Gildin,

Immunizing Intentional Violations of

Constitutional Rights Through Judicial

177

Legislation: The Extension of Harlow v.

Fitzgerald to Section 1983 Actions, 38 Emory

L.J. 369 (1989); Manak, Update on

Absolute/Good Faith Immunity, 23 The

Prosecutor 5 (1989); Schwartz & Mahshigian,

In the 1990's the Government Must be a

Reasonable Person in its Workplaces: The

Discretionary Function Immunity Shield Must

be Trimmed, 46 Wash. & Lee L. Rev. 359

(1989); Tribe, Revisiting the Rule of Law,

64 N.Y.U. Rev. 726 (1989); Comment, Anderson

v. Creighton and Qualified Immunity, 50 Ohio

St. L.J. 447 (1989); Comment, Qualified

Immunity for Law Enforcement Officials in

Section 1983 Excessive Force Cases, 58 U.

Cinn. L. Rev. 243 (1989); Note, The Yonkers

Case: Separation of Powers as a Yardstick

for Determining Official Immunity, XVII

Fordham Urb. L J. 217 (1989) (see, however,

Spallone v. United States, — P ; sie

S.Ct. 625,107 L.Ed.2d 644 (1990),

demonstrating that the author guessed

178

totally wrong); Note, Section 1983: Absolute

Immunity For Pretrial Police Testimony, XVI

Fordham Urb. L.J. 647 (1988); and The D.C

Circuit Review September 1987 - August 1988,

57 Geo. Wash. L. Rev. 1342 (1989).

The authoritative text, B. Gershman,
supra, should not be ignored. In
introduction, Gershman states:

This book is about the use and
abuse of power by one of the most
influential figures in the American
governmental system. Although not a
member of the legislative or judicial
branches, this official exercises broad
lawmaking and adjudicative powers.
Although technically a member of the
executive branch, this official
operates autonomously and independently
and is usually accountable only to the
public. Whether rural or urban, local
or federal, elected or appointed, this
official is glamorized by the media and

179

diabolized by his foes. This figure is
the public prosecutor, and he has the
power to make decisions that control
and even destroy people's careers,
reputations, and lives. Any
comprehensive and systematic

understanding of the criminal justice

system must take account of the central

role of the prosecutor.

A study of the prosecutorial

process is fascinating and frustrating.

As a longtime prosecutor, defense
attorney, and law professor, I have
always believed that the prosecutor's
task is more exacting than that of any
other public officer. More than any
other official, the prosecutor is
required to serve two masters--society
and justice. * * *

x * *

Two major themes emerge from this

book. First, it becomes inescapably

180

clear that the prosecutor, for good or
ill, is the most powerful figure in the
criminal justice system. * * *

The second theme is probably the
most significant in terms of long-range
reform. Restraints on prosecutorial
misconduct are either meaningless or
nonexistent. Relatively few judicial or
constitutional sanctions exist to
penalize or deter misconduct; the
available sanctions are sparingly used
and even when used have not proved
effective. Misconduct is commonly met
with judicial passivity and bar
association hypocrisy.

Id. at vii-1x. ;
Considering this comprehensive history
and exhaustive scholarly authority, it is
time, that the state courts recognize a
responsibility to assure validity to the
guarantees to the state's citizens. Cursory

supplication to the waning protection

181

afforded by the United States Constitution
through current decisions of the highest
court of the federal system can no longer
meet the fealty demanded by the oath of
office of what the state supreme court
justices owe to the state constitution.
Consequently, when addressing suborned
perjury to incarcerate an innocent victim by
a public official, I cannot escape personal
responsibility to the Wyoming State
Constitution or surrender by temporizing
denial by unthoughtful adaptation of
whatever temporary mores may be applied by

the United States Supreme Court to federal

legislation.

I am led in this persuasion by an
unquestionable bedrock principle of
constitutional government that the
legislature need not, and in fact cannot,
act contrarily in order to deny to the
judiciary the right to provide a remedy for

government violation of constitutional

182

rights. In Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403

388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) by
foundational construction of the original
philosophy initially developed by Chief
Justice Marshall, the United States Supreme
Court provided a direct constitutional
remedy for violations by the government of
constitutional guarantees afforded in the
United States Constitution.

I find no need for the application of
W.S. 1-31-101 through 1-31-130, and,-in
fact, no exclusion by whatever such an act
may or may not do to discern that this
court, in exercise of its oath, must provide
a right for protection to our citizens from
constitutional depravation by the government

18

or its employees.” Consequently, we can

187, recognizing the extended discussion of the
majority about the state tort claims act, although
not completely in agreement, I abjure that subject
in professing that a right to correct
constitutional violations exists independent of any
confined statutory process relating primarily to
recovery for injury caused by negligent misconduct.

183

only meet that responsibility by providing a
state Bivens right for redress of

19 the Section 1983

constitutional violation.
remedy is, today, in its nadir, if not in
obsolescence and impotency. Call then
reoccurs for the state judiciary to
recognize the empirical responsibility
required within the state constitution. The
non-legislative answer of the federal system
of Bivens is an obvious answer to accord
real meaning to the state constitutional
guarantees and imperatives. Any constitution
which can be ignored by judicial inaction or

denial of implementing processes is no

constitution and the action or inaction will

1944 storical review demonstrates that development of
state remedies was delayed both by availability of
the federal Section 1983 remedy and by the innate
inaction of most state court systems. Some states
such as Hawaii and New Jersey reached for an answer
to provide a similar result by recognition of the
general invalidity of the preclusionary immunities
as a total justice denial device. Other states move
forward legislatively by a more realistic general
tort claims act. Generally, however, the action was
federal where both the remedy and attorney's fees
could be obtained.

i154

fe)

prostitute and demean the government itself.
The clarion question of why we so often need
to apply to Uncle Fed to provide can more
persuasively and justiciably be answered by
our own activity and ingenuity. The thesis
presented that citizen's rights within the
state constitution are not without
substance, even if not enforced by federal
legislation, has realistic precedent by
previous use of the Bivens remedy for the
state court to enforce the rights
independent of the federal civil rights
action and proceeding. These concepts,
although not yet to have predominated
because of the preferential posture of past
federal remedies, can now be cultivated, to
further the well-being of our citizens in a
realistic recognition of the state's
function in the federal system for the
mutual protection of the state's

constitutional guarantees.

185

What this means is that for the
protection of state constitutional rights,
if depravation or denigration from state
employees occurs, the state Bivens cause of
action should be available under the
constitutional imperatives of our state
constitution. Immunity cannot, in itself, as
a non-constitutional function, amend out of
societal rights for protection the
guarantees which are provided within the
state constitution. This is true no less nor
no more than a like thesis which was
developed in the federal judiciary by
adaptation of a process and right for
justiciability in Bivens. To paraphrase the
oracle or ogle of the professional
immunities, if it would be monstrous for the
federal government not to protect citizens
from denudation by federal employees, it is
no less monstrous for this court to reject
its willingness and our oath of office to
provide a similar right within the state

+00

against denudation of constitutional rights
by employees of the state.

We should then look, as Cooney was
unconstitutionally incarcerated by
conspiratorial perjury of public employees,
where the contours of a Bivens state cause
of action could be most adequately
illuminated and implemented. In Bivens, a
model was created by announcement that a
federal right of action was defined for
which damage was recoverable from federal
agent violation of constitutional guarantees
(Fourth Amendment rights in that case). In
denial of the governmental posture that “io
right to enforce existed, the opinion said:

We think that respondents' —
thesis [that rights to redress could
only be found under state tort law]
rests upon an unduly restrictive view
of the Fourth Amendment's protection
against unreasonable searches and

seizures by federal agents, a view that

iS/

has consistently been rejected by this
Court. Respondents seek to treat the
relationship between a citizen and a
federal agent unconstitutionally
exercising his authority as no
different from the relationship between
two private citizens. In so doing, they
ignore the fact that power, once
granted, does not disappear like a
magic gift when it is wrongfully used.
An agent acting --albeit
unconstitutionally-- in the name of th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0969%3A2. Public record. Not legal advice.