Cooney v. White

Decision Date31 December 1992
Docket NumberNo. 88-174,88-174
Citation845 P.2d 353
PartiesThomas Russell COONEY and Lora John Cooney, Appellants (Plaintiffs), v. Chris J. WHITE, Appellee (Defendant).
CourtWyoming Supreme Court

L.B. Cozzens of Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for appellants.

Joseph B. Meyer, Atty. Gen., and Sylvia L. Hackl, Deputy Atty. Gen., for appellee.


URBIGKIT, Justice.

This appeal involves a decision which was returned to the Wyoming Supreme Court by the United States Supreme Court regarding a prosecuting attorney's conduct, addressed adversely, by a 42 U.S.C. § 1983 (1982) damage complaint. Following a W.R.C.P. 12(b)(6) dismissal by the state district court and this court's subsequent three-to-two decision in Cooney v. Park County, 792 P.2d 1287 (Wyo.1990) (Cooney I ), the United States Supreme Court, with accommodation to Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), remand 958 F.2d 374 (7th Cir.1992), requires our reconsideration by direction in decree, Cooney v. White, 501 U.S. 1201, 111 S.Ct. 2820, 115 L.Ed.2d 965 (1991):

[I]t is ordered and adjudged by this Court that the judgment of the above court in this cause is vacated with costs, and that this cause is remanded to the Supreme Court of Wyoming for further consideration in light of Burns v. Reed, 500 U.S. [478, 111 S.Ct. 1934, 114 L.Ed.2d 547] (1991).

See Bush v. Lucas, 647 F.2d 573 (5th Cir.1981), cert. granted 458 U.S. 1104, 102 S.Ct. 3481, 73 L.Ed.2d 1365 (1982), aff'd 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) and Robert L. Stern, Eugene Gressman & Stephen M. Shapiro, Supreme Court Practice 279-80 (6th ed. 1986). 1 With recognition that the federal law is determinative for application of immunity defenses for a 42 U.S.C. § 1983 ( § 1983) civil rights complaint, we will consider the direction given in Burns and in our companion case, Park County v. Cooney, 845 P.2d 346 (Wyo.1992) (Mayor), which involves the parole officer in the Cooney I civil rights and wrongful arrest complaint.


The facts of this case, now postured with a request by the prosecuting attorney for absolute immunity, were exhaustively addressed in Cooney I, 792 P.2d 1287 and again considered in Mayor, 845 P.2d 346 as the companion appeal. Essentially, within this W.R.C.P. 12(b)(6) motion to dismiss record, the factual detail for testing prosecutorial absolute immunity is simple and easily related. Chris J. White, assistant prosecuting attorney (prosecutor) in Park County, Wyoming, directed a probation officer, resident in Evanston, Uinta County, Wyoming, to prepare a false and perjured petition for revocation of probation against Thomas Russell Cooney. Cooney was working in the oil patch at Bairoil, Wyoming, a corner of Sweetwater County, Wyoming, which is an area under the supervision of the parole office in Rawlins, Carbon County, Wyoming. The prosecutor, knowing that revocation was improper and that the form which he, as deputy county attorney (county official), had directed the probation officer (state official) to prepare was untrue, arranged for the form to be filed in the district court. Based upon this false complaint, the prosecutor secured the issuance of a bench warrant resulting in the incarceration of Cooney for thirty-eight days without opportunity to post bail, be arraigned, secure the assistance of counsel or to obtain any hearing.

Following entry of this court's decision in Cooney I, appellants filed a petition for writ of certiorari with the United States Supreme Court since a § 1983 complaint was included as one count. The decision of this court in Cooney I involved application of absolute immunity to this conduct of the county official. The petition for writ of certiorari was held by the United States Supreme Court, without action, until Burns was published and then Cooney I was vacated and remanded as noted.

This court requested supplementary briefing and, following review, now finds that Burns is controlling. We override our prior decision in Cooney I and reverse and remand the W.R.C.P. 12(b)(6) dismissal for further district court proceedings.


Our decision is whether preclusive immunity (absolute immunity) existed in benefit to the prosecuting attorney against damage claims under § 1983 for a sequence of events, which was earlier stated in Cooney I, to include:

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 person 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 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.

Cooney I, 792 P.2d at 1316, Urbigkit, J., dissenting (emphasis in original).

The real issue is whether, if Cooney is able to prove some, any, or all of these claims of prosecutorial misconduct, the prosecutor is protected from a damage judgment by some character of immunity authorized as a defense under § 1983. The issue as defined under Burns is what, if any, of this conduct by the prosecutor was "giving advice" and what, if any, of the conduct was essentially "prosecutorial" in nature. 2

In reality, we determine, at least in part, whether telling a probation officer situate in a non-supervising office to prepare a false petition for probation revocation comes within the core criteria provided in Burns to be essentially prosecutorial or is moved outside of that core criteria into giving advice or other non-immunized conduct. 3

The supplemental briefing of each litigant recognizes the functional test of Burns, 500 U.S. 478, 111 S.Ct. 1934 and Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). It is also recognized, explicitly or at least by general application, that the determination of immunity which serves to create a defense under § 1983 is a question of federal law within which the United States Supreme Court "has refused to extend absolute immunity beyond a very limited class of officials * * *." Hafer v. Melo, 502 U.S. 21, ---- - ----, 112 S.Ct. 358, 363-64, 116 L.Ed.2d 301 (1991). See also Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Confined to that arena of argument, the State articulates a position that the activities of the prosecutor were functionally connected with the initiation and conduct of a prosecution and these were intrinsically associated with the judicial phase of the criminal process. Conversely, Cooney takes his test, also from Burns, and argues that the court official's conduct goes beyond the judicial/prosecutorial "function" and comes within the more broadly addressed concepts of giving legal advice or perhaps "suborning perjury." This argument tracks the position of Chief Justice Macy in Cooney I, 792 P.2d at 1352 Macy, J., dissenting: "No one should be immune from civil liability for intentionally committing a criminal act, especially a public official who has taken an oath to uphold the constitution and the laws of the State of Wyoming."

We re-examine this case without being predisposed toward a particular result and re-evaluate the purpose and effect of absolute prosecutorial immunity from civil liability within the context of § 1983 4--federal civil rights legislation designed to protect against public sector deprivation of constitutional rights. In reaching our decision, we recognize and benefit from the United States Supreme Court's collaborative reasoning and shared wisdom in Burns. We also look for guidance in how other courts have applied Burns in the prosecutorial immunity context.


In Burns, the police were investigating the shooting and wounding of Cathy Burns' two sons while they slept in her house. Burns, 500 U.S. at ----, 111 S.Ct. at 1937. Despite Burns' repeated denials, passing a polygraph examination and a voice stress test, and submission of exculpatory handwriting samples, the police viewed her as a primary suspect. Conjecturing that she had multiple personalities, one of which did the shooting, the police wanted to place her under hypnosis and interview her. Concerned that this might be a legally unacceptable investigative technique, the police solicited deputy prosecutor Reed who advised them to proceed with an interview under hypnosis. Under hypnosis, Burns referred to the shooter and herself by the same name, "Katie," which the police believed supported their theory. Detaining Burns at the police station, the police again sought Reed's advice whether probable cause existed for arrest. Based upon Burns' statements under hypnosis, Reed told the police that they had probable cause for arrest. Id.

Acting on that advice, the police arrested Burns. The next day, Reed and one of the investigating policemen appeared at a probable cause hearing, held by a county court judge, seeking to obtain a search warrant for Burns' house and car. In response to Reed's questioning, the investigating policeman testified that...

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