Powell v. Seay

553 P.2d 161

• Court: Supreme Court of Oklahoma
• Decided: July 27, 1976
• Docket: 48856
• Status: Published

Opinions

BERRY, Justice:

This is original proceeding commenced by Roy B. Powell, District Attorney of Seminole County. Petitioner seeks writ of prohibition against respondent, Hon. Frank H. Seay as District Judge of District Court of Seminole County, Wewoka Division, Oklahoma.

He asks this Court to assume jurisdiction and to issue writ of prohibition to respondent judge commanding him to refrain from further proceedings in cause No. C-75-95 in District Court of Seminole County.

On July 2, 1975, William C. Merryfield, Sheriff of Seminole County commenced action against petitioner, district attorney, seeking damages for alleged malicious prosecution.

His petition alleges district attorney maliciously and without justifiable cause filed complaint against sheriff charging him with unlawfully ordering and dissuading an individual to leave district court, by means of threat to deter this individual from testifying to grand jury. Petition further alleges preliminary hearing was held on complaint on May 1, 1975, in District Court of Seminole County and charges were dismissed.

On July 14, 1975, sheriff filed interrogatories for district attorney to answer. District attorney failed to answer interrogatories.

On August 4, 1975, district attorney filed special appearance and denial of jurisdiction on ground all acts complained of transpired while in his official capacity as district attorney and being immune from liability, action should be dismissed.

On August 27, 1975, hearing was had on sheriff’s motion to compel answers to interrogatories and district attorney’s special appearance and motion to dismiss for lack of jurisdiction.

Trial judge sustained sheriff’s motion to compel answers to interrogatories giving district attorney forty days to comply. Trial judge held in abeyance argument on special appearance and motion to dismiss for lack of jurisdiction for period of 45 days so parties might submit briefs.

On September 4, 1975, district attorney filed application in this Court for writ of prohibition.

We have consistently held a judicial officer is not liable in civil action for judicial acts. Comstock v. Eagleton, 11 Okl. 487, 69 P. 955; Waugh v. Dibbens, 61 Okl. 221, 160 P. 589; Quindlen v. Hirschi, Okl., 284 P.2d 723.

In Mills v. Smith, Okl., 355 P.2d 1064, we rejected the contention that malicious acts of public officials engaged in a quasi-judicial duty require application of a different rule. We stated:

“ * * * We think reason, justice and public policy demand that when a public officer is engaged in a quasi-judicial duty involving discretion, he be immune from liability for his acts, if they are within his jurisdiction, or lawful authority, regardless of his motive. As stated in Sanders State Bank v. Hawkins, Tex.Civ.App., 142 S.W. 84, to hold him liable for discretionary acts in a ‘private action, it must appear that he transcended the limits of his power, but as long as he remains within the scope of his legal authority he is not liable, notwithstanding his motive; * * *

In Price v. Cook, 120 Okl. 105, 250 P. 519, we held actions of county attorney done within scope of his authority are quasi-judicial in character and afford absolute immunity from liability. We quoted with approval the following statement in Dunnington v. Loeser, 48 Okl. 636, 149 P. 1161, 150 P. 874, on petition for rehearing:

“To adopt a lax rule, favorable to actions for malicious prosecution, is to open the door in such actions, and to close the door to prosecutions, to turn society over to the lawless, and to create a dread on the part of any one who dares to prosecute.”

In instant action facts alleged in petition clearly reveal district attorney in initiating complaint against -sheriff was acting within scope of his authority as prosecuting attorney.

Thus, petition wholly fails to state a cause of action based on malicious prosecution.

Sheriff contends petition also states cause of action under Federal Civil Rights Act, 42 U.S.C. § 1983, which provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

Both parties agree federal civil rights action may be brought in state court.

Some federal civil rights cases hold district attorney may be liable where he goes beyond prosecutorial function and engages in police function of arrest and interrogation. Robichaud v. Ronan, 351 F.2d 533 [9th Cir. 1965]; Hampton v. Chicago, 484 F.2d 602 [7th Cir. 1973]; Ames v. Vavreck, 356 F.Supp. 931 [D.C.1973],

However, present case is based upon filing of criminal charge and prosecution of criminal case. Such acts are prosecutorial functions, and not police functions.

The general rule under federal civil rights act is that prosecuting attorneys are immune from civil suits for damages based on performance of duties that are part of the judicial process. Marlowe v. Coakley, 404 F.2d 70 [9th Cir.], cert. denied, 395 U. S. 947, 89 S.Ct. 2017, 23 L.Ed.2d 465; Bauers v. Heisel, 361 F.2d 581 [3rd Cir. 1966]; Phillips v. Nash, 311 F.2d 513 [7th Cir. 1962]; Weathers v. Ebert, 505 F.2d 514 [4th Cir. 1974]; Barnes v. Dorsey, 480 F.2d 1057 [8th Cir. 1973].

Immunity exists regardless of malice where acts committed are intrinsic part of prosecutorial function. Sykes v. State of Cal., 497 F.2d 197 [9th Cir. 1974]; Robichaud v. Ronan, supra.

All acts of district attorney upon which present action is based were intrinsic part of prosecutorial function. Thus, district attorney is immune from prosecution for alleged violation of civil rights act.

The remaining question is whether prohibition is proper remedy.

Art. VII § 4 of the Constitution of the State of Oklahoma gives this Court original jurisdiction to issue writs of prohibition.

Prohibition is proper remedy, where inferior court assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force. Writ will not be withheld under such conditions because other concurrent remedies exist where it does not appear such remedies are equally adequate and convenient. Board of Commissioners of Harmon County v. Keen, 194 Okl. 593, 153 P.2d 483; State ex rel. Pitchford v. District Court of 24th Judicial Dist., Okl.Cr., 323 P.2d 993.

Here no cause of action exists. No appeal lies from order compelling defendant to answer lengthy interrogatories. Also, no appeal lies for trial judge’s failure to rule on question of immunity. Further, a burdensome and expensive trial that will consume public funds is undesirable.

Under such circumstances remedy of appeal is not speedy and adequate and writ of prohibition should issue as- prayed.

A writ of prohibition is accordingly issued permanently restraining respondent district judge and district court of Seminole Court, Wewoka Division from proceeding further in said cause.

WILLIAMS, C. J., and LAVENDER, BARNES, SIMMS, JJ., concur. HODGES, V. C. J., and IRWIN and DOOLIN, JJ., dissent.