McCollum v. Garrett

880 S.W.2d 530, 1994 WL 141010

• Court: Kentucky Supreme Court
• Decided: September 1, 1994
• Docket: 93-SC-083-DG
• Status: Published

Opinions

LAMBERT, Justice.

This Court granted discretionary review to consider the extent to which a public prosecutor shall have immunity from civil liability for malicious prosecution.¹ A separate question which must first be addressed is whether the complaint filed by appellee, Georgia Fay Garrett, sufficiently stated an individual, as opposed to an official capacity, claim against appellant, Charles R. McCol-lum, III. As this case was resolved by summary judgment in the trial court, the relevant testimony contained in Garrett’s affidavit must be taken as true.²

This claim for relief arose out of the following events: Two female prisoners were being escorted to a court appearance. In the courthouse yard, the prisoners were approached by a woman and a bearded man who hugged and kissed them and thereby transferred pills from their teeth to the prisoners. This act was witnessed by two women who reported the occurrence to Detective Cottingham and County Attorney McCollum. On receiving this information and suspecting a violation of the law with respect to promoting contraband, McCollum went with the two women to the courthouse yard in an effort to determine who had committed the acts. In the vicinity, McCollum found a cigarette case which he took to the courtroom. He inquired of those assembled to whom the cigarette case belonged and Tracy Griffin identified it as hers. McCollum then asked Ms. Griffin whether she had seen who had hugged and kissed the prisoners and she replied that the man’s name was Blake and that the woman was Fay Garrett. In the courtroom, McCol-lum then called out the name of Fay Garrett and she responded.

What transpired thereafter is disputed. According to Garrett, she and McCollum went to the sheriffs office together. On arrival, Tracy Griffin, the eyewitness, immediately stated to McCollum, “She’s not the one.” Ms. Griffin then repeated this remark and was told by McCollum to sit down and shut her mouth. After further inquiring as to Garrett’s identity and the identity of the man known only as Blake, McCollum left the sheriffs office and instructed Garrett to go into a side room in the sheriffs office and sit down. While in this room, Garrett claims she was rudely questioned by Detective Cot-tingham, and a considerable time later, Garrett’s attorney, Bob Bowers, arrived. After Garrett had been fingerprinted and photographed, McCollum returned and asked Garrett if she had kissed her sister, one of the prisoners. When she responded that she had not, after a brief time out of the room, McCollum returned and said, “I’m sorry. I know you’re not guilty.” When Garrett expressed the assumption that she was not being arrested, McCollum explained, “I have to rush this because I had to stop the judge in the hallway as he was leaving and get the warrant signed.” Other statements are attributed to McCollum which indicate that he knew Garrett was not the person who had passed the pills to the prisoners, but was causing her arrest upon his belief that she was protecting some other person.

As earlier indicated, McCollum’s version of the facts differs substantially. He has stated that immediately after Garrett was identified by Griffin as one of the persons who had passed pills to the prisoners, he instructed his secretary to prepare a criminal complaint and arrest warrant for Garrett. Not until after the warrant had been signed by a judge commanding Garrett’s arrest did he hear Tracy Griffin’s statement that Fay Garrett was not the one who had committed the act.

From the foregoing, it is evident that there is a factual dispute as to whether McCollum procured Garrett’s arrest after having been told he had the wrong person by the only person who had earlier named Garrett.

I.

Prior to reaching the immunity question, it is necessary to address McCollum’s contention that Garrett’s complaint is fatally defective for failing to assert a claim against him in his individual capacity. He contends that the claim is against him as an official of Henderson County and as such, he is entitled to the sovereign immunity of the county. See Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967), which held that Jefferson County, the Jefferson County Board of Education, and the Jefferson County Playground and Recreation Board were protected by the doctrine of sovereign immunity from their tortious acts.

For this contention, McCollum relies upon the failure of the complaint to specify individual capacity and its use of his official title in the caption and in paragraph 2. Without such specificity, he contends the claim should be construed as being against him in his official capacity, resulting in immunity.

In the caption McCollum is referred to as “Charles R. McCollum, III, Henderson County Attorney,” and in paragraph 2, it is alleged that he is and was at all relevant times Henderson County Attorney. Otherwise, references to him in the complaint identify him only as defendant or defendant McCollum. In the ad damnum clause, judgment is sought only against “the defendants.” ³ From the foregoing, it is clear that Garrett failed to expressly state whether her claim was against McCollum in his individual or official capacity.

McCollum relies on this Court’s recent decision in Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., Ky., 805 S.W.2d 133 (1991), and our holding that a claim for personal liability had not been stated against the MSD board members. We said, inter alia:

We are persuaded by the failure to specify individual capacity in the heading, the lack of specificity in the body, and the failure to seek judgment against such individuals in the concluding demand, that the Complaint fails to state a separate cause of action for personal liability against any particular individual.

Id. at 139. Standing alone, the foregoing would appear to support McCollum’s contention, but when read in context, the conclusion is otherwise. In Calvert, the claim was against the Louisville & Jefferson County Metropolitan Sewer District and its board members, together with the Louisville & Jefferson County Board of Health and its director of division of environmental health, as well as the Commonwealth of Kentucky, Natural Resources and Environmental Protection Cabinet, and its secretary. The ad damnum clause sought recovery from MSD, the Board of Health and the Cabinet, but did not mention the individuals. We concluded that the Calvert claim was, in reality, against the governmental entities and that failure to specify claims against the individuals resulted in the absence of any such claims. An earlier decision, Morgan v. O’Neil, Ky., 652 S.W.2d 83 (1983), reached a draconian result, but acknowledged that CR 8.01 requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” A proper approach is found in Smith v. Isaacs, Ky., 777 S.W.2d 912 (1989), in which we held the complaint sufficient to state a claim against the defendant for his individual negligence despite a possible construction that the allegations merely sought to pierce the corporate veil. We quoted from 6 Ber-telsman and Philipps, Kentucky Practice, Rules of Civil Procedure, and its discussion of the function of notice pleadings and concluded that

We no longer approach pleadings searching for a flaw, a technicality upon which to strike down a claim or defense, as was formerly the case at common law. Whereas the old common law demur searched the pleadings for a reason to dismiss, now a Motion to Dismiss is directed at the substance of the pleading. (Citation omitted.)

Smith v. Isaacs, 777 S.W.2d at 915. We have considered the federal authorities cited by the parties, but decline to follow what appears to be the more rigorous requirements of Lovelace v. O’Hara, 985 F.2d 847 (6th Cir.1993).

In our view, this issue should be resolved by a commonsense reading of the complaint and application of the Rules of Civil Procedure. While disclosure of McCollum’s official position in the caption and in paragraph 2 creates a measure of uncertainty, the complaint otherwise states a straightforward claim against McCollum based upon his individual actions. Nowhere is there any allegation that Henderson County or its fiscal court is liable for damages. The relevant allegations of misconduct are directed at McCollum and Cottingham.⁴ CR 8.06 requires that “All pleadings shall be so construed as to do substantial justice.” This rule, sometimes called a “liberal construction” rule, requires that a pleading be judged according to its substance rather than its label or form. To construe this pleading as a claim against the defendants in their official capacity would result in the claim being barred. To construe it as an individual capacity claim permits the litigation to proceed toward the merits, a goal we have expressly embraced in other contexts. Ready v. Jamison, Ky., 705 S.W.2d 479 (1986), Crossley v. Anheuser-Busch, Inc., Ky., 747 S.W.2d 600 (1988).

Our examination of the record reveals no misleading of or prejudice to McCollum. We note that he timely and properly filed an answer to the complaint and did not move pursuant to CR 12.05 for a more definite statement, an approved method for clarifying vague or ambiguous pleadings. Smith v. Isaacs, supra. Accordingly, we affirm that portion of the opinion of the Court of Appeals which reversed the trial court’s dismissal on grounds of sovereign immunity.

II.

In addition, McCollum claims absolute immunity by virtue of his status as a public prosecutor. The Court of Appeals rejected this claim holding

... that in order for a prosecutor to be immune from civil liability for malicious prosecution, he must act within the scope of his duty, which includes performing his duties in good faith. Stated differently, a prosecutor is not immune from liability if a jury finds he initiated or continued criminal proceedings with an improper motive. If, however, the prosecutor has simply made a mistake in judgment by initiating or continuing the action, he will be immune.

By this holding, the Court of Appeals reversed the trial court’s finding that McCol-lum was at all times acting within the scope of his official duties and was thereby entitled' to immunity. In sum, the circuit court made a factual determination, despite the eviden-tiary dispute, that McCollum acted only within the scope of his official duties, and the Court of Appeals regarded immunity as available only if McCollum performed his duties in good faith and without an improper motive. For reasons which follow, we disagree with both courts below.

On the question of prosecutorial immunity for malicious prosecution, Kentucky law is well expressed in Dugger v. Off 2nd, Inc., Ky.App., 612 S.W.2d 756 (1981), wherein the Court of Appeals rejected a prosecutor’s absolute immunity claim. Dugger was wrongfully arrested pursuant to a warrant charging him with disorderly conduct. He alleged that the prosecutor signed the judge’s name to the warrant and that the prosecutor’s actions constituted gross negligence, wantonness, abuse of process and collusion since Dugger’s wife was then being represented in divorce litigation by the prosecutor’s law partner. The court correctly recognized that a public prosecutor must have immunity when he is acting within the scope of his authority for without it, the prosecutorial function would suffer. Nevertheless, the court examined the applicable constitutional and statutory provisions and concluded that as the prosecutor had no lawful authority to sign the name of a judge to an arrest warrant, he was outside the scope of his authority and without immunity. Throughout the Dugger opinion, one encounters the concept of “scope of prosecutorial duties,” or words to that effect, as defining the availability of prosecutorial immunity. The opinion is clear that so long as a prosecutor acts within the scope of the duties imposed by law, quasi-judicial immunity is available, but otherwise it is not.⁵

A recent decision of the Supreme Court of the United States, Buckley v. Fitzsimmons, 509 U.S.-, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1998), is in accord with Dugger. Relying on its recent decisions in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), and Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1992), the Supreme Court recognized that certain actions of a prosecutor were necessarily preliminary to the initiation of a prosecution, but were nonetheless protected by absolute immunity. Such acts were said to include the professional evaluation of evidence assembled and appropriate preparation for its presentation at trial or to a Grand Jury. On the other hand, Buckley is clear that absolute immunity does not follow a prosecutor in all of his actions. On those occasions when a prosecutor functions as an administrator or investigator, prosecutorial immunity is limited to qualified immunity.⁶ Distinguishing between investigative and prosecutorial functions, the Court said

The prosecutors do not contend that they had proper cause to arrest petitioner or to initiate judicial proceedings during that period. Their mission at that time was entirely investigative in character. A prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.

Buckley, — U.S. at-, 113 S.Ct. at 2616. While Buckley is somewhat more explicit than Dugger, the result is the same. A prosecutor acting as such and in accordance with the duties of office as defined by Kentucky law should have absolute immunity. Otherwise, only qualified immunity is available. This view is consistent, we believe, with this Court’s decisions in Mitchell v. Rippy, 82 Ky. 516 (1885), and Dixon v. Cooper, 109 Ky. 29, 58 S.W. 437 (1900).

A recent decision of this Court rendered after the parties’ briefs were filed is Compton v. Romans, Ky., 869 S.W.2d 24 (1993), wherein we granted absolute immunity to a high-ranking government official despite a jury verdict which found him guilty of knowing or reckless defamation. Our decision recognized that an official’s entitlement to immunity is strictly dependent upon the statutory authority vested in the official.

To determine the extent to which a public official shall have protection of the doctrine of absolute immunity, it is necessary to examine the lawful authority, including such discretionary authority as may reasonably be implied....

Id. at 27. We concluded that the General Assembly had broadly granted the State Racing Commission authority “to assure the probity of every aspect of the enterprise” and that a broader grant of authority could scarcely be conceived. As such, we upheld the absolute immunity claim with the full understanding that to do so would have the effect, on occasion, of protecting “officials in their misconduct.” We concluded that this unappealing result was necessary to prevent timid, weak and vacillating performance of public duties.

In the instant case, it appears undisputed that McCollum initially acted as an investigator by attempting to determine who had passed the suspected contraband to the prisoners. In the course of events, the parties’ versions of the facts diverged. McCol-lum contended that when Garrett was identified, he immediately initiated prosecution of her by preparation of a complaint and arrest warrant. Garrett’s version is that while the investigation was ongoing, McCollum learned that she was misidentified or at least that the witness who had named her had recanted, but he nevertheless initiated the prosecution. Under the rule set forth in Dugger v. Off 2nd, supra, and Buckley v. Fitzsimmons, supra, and its predecessor decisions, the result is manifest.

During the time in which McCollum essentially acted as an investigator, the protection available to him was qualified immunity. Upon the commencement of prosecution and the assumption of his role as a public prosecutor, McCollum’s immunity became absolute. The factual dispute appears to be whether McCollum learned that Garrett was misidentified as the offender during the investigation and prior to prosecution, but nevertheless initiated the prosecution. As Garrett’s affidavit contains evidence from which a jury could believe that he did, this case must be remanded for further proceedings and trial.

We affirm the Court of Appeals and remand for further proceedings consistent herewith.

As to Part I, LEIBSON, REYNOLDS and STUMBO, JJ., concur. PHILIP TALIAFERRO, Special Justice, also concurs and files a concurring opinion. SPAIN, J., dissents and files a dissenting opinion in which STEPHENS, C.J., joins.

As to Part II, STEPHENS, C.J., and LEIBSON and STUMBO, JJ., concur.

PHILIP TALIAFERRO, Special Justice, dissents and files a dissenting opinion in which REYNOLDS and SPAIN, JJ., join.

1 . The elements of a civil action for malicious prosecution are set forth in Raine v. Drasin, Ky., 621 S.W.2d 895, 899 (1981). The distinction between malicious prosecution and “wrongful use of civil proceedings” is noted in Prewitt v. Sexton, Ky., 777 S.W.2d 891, 893 (1989).

2 . On motion for summaiy judgment, when the affidavits of the parties are in conflict, for the purpose of ruling on the motion, the testimony of the party against whom the motion is made must be accepted. If, and only if, the record, “together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” shall summaiy judgment be rendered. CR 56.03. Goldsmith v. Allied Bldg. Components, Inc., Ky., 833 S.W.2d 378, 381 (1992); Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).

3 . In addition to appellant McCollum, the complaint also named "Larry Cottingham, Henderson County Deputy Sheriff” as a parly defendant. As to Deputy Sheriff Cottingham, the Court of Appeals affirmed the trial court's dismissal and further review was not sought.

4 . In part, the complaint is as follows:

(4) That on the 28th day of March, 1990, the Plaintiff was maliciously and wrongfully and without probable cause accused and charged with committing a criminal act to wit: Promoting Contraband in violation of KRS 520.-060 by warrant signed by the defendant Larry Cottingham.

(5) That the defendants Charles R. McCol-lum and Larry Cottingham knowingly had issued a warrant for the Plaintiff's arrest accus-mg her of acts that the defendant McCollum knew Plaintiff was not guilty of and so admitted to the Plaintiff and Plaintiff’s legal counsel at that time.

(6)That the defendant McCollum after acknowledging Plaintiff's innocence of the criminal charge, refused to have the warrant quashed and the Plaintiff was subsequently arrested, fingerprinted, photographed, taken to jail, and wrongfully detained.

5 . The Court in Dugger v. Off 2nd, Inc., Ky.App., 612 S.W.2d 756 (1981), borrowed the concept of quasi-judicial immunity and properly applied it to prosecutors acting within the scope of their prosecutorial duties. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Dixon v. Cooper, 109 Ky. 29, 58 S.W. 437 (1900), and numerous other decisions reiterate the absolute immunity of judges acting within their jurisdiction.

6 . “Qualified immunity” was described in Buckley v. Fitzsimmons, 509 U.S. -, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), as follows:

... government officials are not subject to damages liability for the performance of their discretionary functions when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." (Citation omitted.) In most cases, qualified immunity is sufficient to “protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.”

-U.S. at-, 113 S.Ct. at 2613. There is a close analogy between malicious prosecution claims to which qualified immunity applies and defamation claims in which actual malice must be proven. Such cases generally require that the defamatory statement be made “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Defamation cases requiring a showing of actual malice were extensively reviewed in Warford v. Lexington Herald-Leader Co., Ky., 789 S.W.2d 758 (1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 754, 112 L.Ed.2d 774 (1991). The point is a prosecutor possessing qualified immunity may not be held liable for a mistake or negligence. There must be a showing of knowing misconduct or reckless disregard.