Cooper v. Parker-Hughey

Decision Date11 April 1995
Docket NumberM,No. 79863,PARKER-HUGHE,79863
Citation1995 OK 35,894 P.2d 1096
PartiesGerald Laran COOPER, Appellant, v. GarlandaD., Appellee.
CourtOklahoma Supreme Court

Certiorari to the Court of Appeals, Division 4. Appeal from the District Court of Oklahoma County; James B. Blevins, Trial Judge.

Certiorari to review opinion of Court of Appeals affirming the judgment of the district court which dismissed the cause of action for perjury of appellant on the grounds that appellee was clothed with absolute immunity as a witness in a criminal prosecution of appellant and that appellant had failed to appear for trial. The Court of Appeals determined the district court did not err in dismissing the action on the failure to appear and that other grounds for dismissal were present, namely that Oklahoma does not recognize the tort of perjury.

CERTIORARI PREVIOUSLY GRANTED. COURT OF APPEALS OPINION VACATED. JUDGMENT OF THE DISTRICT COURT AFFIRMED.

Gerald L. Cooper, McAlester, pro se.

Robert H. Mitchell and Johnny J. Akins, Robert H. Mitchell & Associates, Oklahoma City, for appellee.

SIMMS, Justice:

Gerald Laran Cooper appeals the district court judgment dismissing his cause of action for tortious perjury against appellee, Garlanda Parker-Hughey, M.D. The district court dismissed the action on two grounds: (1) Dr. Parker-Hughey was entitled to absolute immunity from suit in her capacity as a prosecution witness, and (2) Cooper failed to prosecute the civil action by failing to appear on the day of trial. The Court of Appeals affirmed on the failure to prosecute ground and also held that an action for tortious perjury is not recognized in Oklahoma.

Certiorari is granted to consider the question of immunity and whether the tort of perjury exists because the Court of Appeals' opinion questions and conflicts with the holding in Copeland v. Anderson, 707 P.2d 560 (Okla.App.1985), another opinion of the Court of Appeals.

Because we hold that a prosecution witness in a criminal trial is immune from civil liability for damages caused by their testimony, and further that the civil tort of perjury is not recognized in this State, the opinion of the Court of Appeals in this case is vacated, the judgment of the district court is affirmed, and Copeland v. Anderson, 707 P.2d 560 (Okla.App.1985), is overruled. The pertinent facts follow.

Cooper was charged, tried and convicted of raping an eight-year old girl in Oklahoma County. Dr. Parker-Hughey testified as an expert medical witness for the state in the trial. Cooper remains incarcerated at this time.

About one year after his conviction, Cooper brought a civil rights action against Dr. Parker-Hughey and others in federal district court. The federal complaint was based upon 42 U.S.C. § 1983, and alleged Cooper's civil rights were violated by Dr. Parker-Hughey's allegedly perjured testimony. The federal court dismissed the action on the grounds that Dr. Parker-Hughey was

"absolutely immune from liability for such testimony, in recognition of her function in the trial as one of the 'integral parts of the judicial process.'... Defendant Parker-Hughey's immunity extends to her even if such testimony was perjured."

Cooper at first gave Notice of Intent to Appeal this determination, but later withdrew the appeal. He then filed an action in state court with the same basic allegations of perjury. That action was dismissed by the district court for lack of personal jurisdiction because Cooper never personally served Dr. Parker-Hughey. Cooper filed an appeal of the district court's dismissal, but the Court of Appeals dismissed it finding jurisdictional defects in his Petition in Error.

Cooper then filed the present action in state district court making the same allegations as in the other lawsuits. This time Cooper managed to serve Dr. Parker-Hughey personally, and the trial court issued its scheduling order setting out the discovery and motion deadlines as well as the pre-trial conference date. The record discloses that two applications for writs of habeas corpus ad testificandum were filed by Cooper. One was requested for his appearance at a hearing on a Motion to Compel Discovery he filed. The other was for the purpose of appearing at the pre-trial conference. Without comment, the trial court did not grant the writs. No other writs of habeas corpus ad testificandum appear in the record.

The trial court failed to comply with the mandates of Johnson v. Scott, 702 P.2d 56 (Okl.1985) and Mitchell v. Meachum, 770 P.2d 887 (Okl.1988), it was at most harmless error in light of the holding in this case that alleged perjury does not give rise to an action in tort.

Cooper did not appear on the date of trial, and the trial court dismissed the action holding Dr. Parker-Hughey was entitled to judgment dismissing the action on the issue of absolute immunity as well as for Cooper's default and failure to prosecute. It is from this judgment and dismissal that Cooper now appeals.

Absolute immunity from civil liability for damages resulting from the testimony of witnesses in criminal prosecutions was well established in English common law. See Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), and English cases cited therein. In Briscoe, the U.S. Supreme Court affirmed this absolute immunity in a civil rights action brought by persons convicted of sexual assault in state court. The convicted defendants sued police officers who testified against them alleging the police officers violated their constitutional rights to due process and a fair trial by testifying that the criminal defendants had been able to harmonize their stories. The result of this allegedly false testimony was that the exculpatory statements of each criminal defendant were rendered less credible. The Court held that the police officers were immune from liability for any damages resulting from their testimony as witnesses in the criminal prosecution.

In addressing the question of witness immunity, the Court stated:

"[I]n damages suits against witnesses, 'the claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible.' Calkins v. Sumner, 13 Wis. 193, 197 (1860). A witness's apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. See Henderson v. Broomhead, supra, 157 Eng.Rep., at 968. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability. See Barnes v. McCrate, 32 Me. 442, 446-447 (1851). ... A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence. See Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 470 (1909). But the truth-finding process is better served if the witness's testimony is submitted to 'the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.' Imbler v. Pachtman, 424 U.S. 409, 440, 96 S.Ct. 984, 999, 47 L.Ed.2d 128 (1976) (WHITE, J., concurring in the judgment)." 460 U.S. at 332-34, 103 S.Ct. at 1114-115 (Citations omitted).

The court in Briscoe further indicated that the policy behind absolute immunity is to protect the judicial process. " 'Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.' " 460 U.S. at 335, 103 S.Ct. at 1115 [quoting Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978) ]. In short, the U.S. Supreme Court reaffirmed the common law absolute immunity afforded to witnesses in judicial proceedings for damages resulting from their testimony. We agree that this witness immunity best serves the judicial system and the greater public interest of keeping the "paths which lead to the ascertainment of truth ... as free and unobstructed as possible." 460 U.S. at 332, 103 S.Ct. at 1114.

The Legislature has codified this immunity from defamation suits in 12 O.S. 1991, § 1443.1, which deems any communication made during a judicial proceeding a privileged communication immune from suit for libel. It reads:

"A. A privileged publication or communication is one made:

First. In any legislative or judicial proceeding or any other proceeding authorized by law;

* * * * * *

B. No publication which under this section would be privileged shall be punishable as libel." 1

Under this statute and its predecessor, we have held that attorneys, parties and witnesses are immune from defamation suits where those suits are based upon communications made during or preliminary to judicial proceedings as long as the communication is in some way relevant to the proceeding. Kirschstein v. Haynes, 788 P.2d 941, 948 (Okla.1990); Hammett v. Hunter, 189 Okla. 455, 117 P.2d 511 (1941). In Hammett, the Syllabus by the Court reads:

"1. Defamatory words published by the parties, counsel or witnesses, in due course of a judicial proceeding and which are connected with, or relevant or material to, the cause in hand or subject of inquiry, constitute an absolutely privileged communication, and no action will lie therefor, however false or malicious they may in fact be." 117 P.2d at 511 (Emphasis added).

The public policy undergirding the common law immunity for witnesses in judicial proceedings is well-supported and compelling. A witness must be free to testify without the fear of facing a civil action for his or her testimony. The immunity serves the judicial process by encouraging witnesses to testify without...

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