Blake v. Rupe

Decision Date14 September 1982
Docket Number5577,Nos. 5576,s. 5576
Citation651 P.2d 1096
PartiesRuth BLAKE and Louis Dekmar, Appellants (Defendants), v. Thomas N. RUPE, Appellee (Plaintiff). Thomas N. RUPE, Appellant (Plaintiff), v. Ruth BLAKE and Louis Dekmar, Appellees (Defendants).
CourtWyoming Supreme Court

Glenn Parker (argued) and Harold F. Buck, Hirst & Applegate, Cheyenne, signed the brief on behalf of appellant Blake.

James E. Fitzgerald, Cheyenne, and F. Michael Ludwig, Wood, Ris & Hames, P.C., Denver, Colo., signed the brief on behalf of appellant Dekmar; Hames appeared in oral argument.

Raymond B. Hunkins and Eric M. Alden, Jones, Jones, Vines & Hunkins, Wheatland, for appellee Rupe.

David A. Kern, Cheyenne, filed amicus curiae brief on behalf of the Wyoming County and Pros. Attys. Ass'n in support of the position of appellants Blake and Dekmar.


RAPER, Justice.

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

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

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


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

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

At his justice of the peace appearance for a preliminary hearing, Rupe presented evidence that when released from the penitentiary he had been issued a form of discharge executed by the then Governor of Wyoming which concluded with:

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

The form of discharge was, at the time of Rupe's discharge from the penitentiary, pursuant to then § 19-1004, W.S.1945 (afterwards § 7-13-107, W.S.1977) 2:

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

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

"A person sentenced to the penitentiary for a felony, when sentence has not been reversed or annulled, is incompetent to be an elector or juror, or to hold any office of honor, trust or profit within this state, unless he shall have received a pardon; but no pardon shall release a convict from the costs of his conviction, unless so stated therein." 3

The justice of the peace dismissed the complaint.

Other facts will be set out as appropriate.


A county and prosecuting attorney in the State of Wyoming "act[s] as prosecutor for the State of Wyoming in all felonies and misdemeanors arising in his [her] county" and prosecutes such cases in the courts of such county, § 18-3-302, W.S.1977, in effect at the time the prosecution involved in this case arose. " * * * All prosecutions shall be carried on in the name and by the authority of the State of Wyoming, and 'conclude against the peace and dignity of the State of Wyoming.' " Section 15, Article V, Wyoming Constitution. Blake, as the duly elected prosecutor, was therefore a proper person charged with the duty of initiating criminal prosecutions on behalf of the state of Wyoming. She was therefore acting within the scope of her duties when she investigated and directed the filing of a complaint against Rupe.


We are satisfied that the touchstone authority for the basis of our disposition of this appeal rests in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). It was there held that a state prosecuting attorney acting within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the State's case is absolutely immune from a civil suit for damages under 42 U.S.C. § 1983 4 for alleged deprivations of constitutional rights. The sweep of the opinion specifically takes in and approves the common-law rule of absolute immunity for a prosecutor acting within the scope of his duty. 5 In the use of Imbler, we hasten to mention at this point, that we recognize that the United States Supreme Court reserved until another time a final settlement of the extent to which absolute immunity attaches to those aspects of the prosecutor's responsibility which assign him/her the role of administrator and investigator. We will further on in this opinion deal with a prosecutor's immunity while performing his/her administrative and investigative functions, since appellee frames his causes of action around that phase of Blake's prosecution of Rupe. Though the tenor of Rupe's tort action in all aspects was that Blake's prosecution was based in anger with spiteful motives because one jury with which Rupe sat acquitted the defendant, Rupe does not allege malicious prosecution as such.

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

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

" 'The office of public prosecutor is one which must be administered with courage and independence. Yet how can this be if the prosecutor is made subject to suit by those whom he accuses and fails to convict? To allow this would open the way for unlimited harassment and embarrassment of the most conscientious officials by those who would profit thereby. There would be involved in every case the possible consequences of a failure to obtain a conviction. There would always be a question of possible civil action in case the prosecutor saw fit to move dismissal of the case. * * * The apprehension of such consequences would tend toward great uneasiness and toward weakening the fearless and impartial policy which should characterize the administration of this office. The work of the prosecutor would thus be impeded and we would have moved away from the desired objective of stricter and fairer law enforcement.' Pearson v. Reed, 6 Cal.App.2d 277, 287, 44 P.2d 592, 597 (1935)." (Footnote omitted.) Imbler v. Pachtman, supra, 424 U.S. at 422-424, 96 S.Ct. at 991-992, 47 L.Ed.2d at 139-140.

As further pointed out in Imbler, without absolute immunity the performance of the prosecutor's duties would be undermined by the constant threat of a suit for damages. If a prosecutor had to make every move in the performance of his/her work on the basis of a potential personal liability, the public trust in the prosecutor's office would suffer in that his/her judgment would be colored by such...

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