Holland v. Lutz

• Citation: 401 P.2d 1015,194 Kan. 712
• Decision Date: 15 May 1965
• Docket Number: No. 44010,44010
• Parties: O. L. HOLLAND, Appellee, v. Buford J. LUTZ and Norman E. Gaar, Appellants.
• Court: Kansas Supreme Court

Page 1015

401 P.2d 1015

194 Kan. 712

O. L. HOLLAND, Appellee, v. Buford J. LUTZ and Norman E. Gaar, Appellants.

No. 44010.

Supreme Court of Kansas.

May 15. 1965.

Syllabus by the Court

1. A judicial officer is not liable for a false arrest resulting from acts performed in his judicial capacity unless there be a clear absence of all jurisdiction over the subject matter and the person, even though his acts constitute an excessive or erroneous exercise of jurisdiction, or involve a decision that he had jurisdiction when in fact he had none.

2. Actual malice is not an element of false arrest or imprisonment; its presence does not make a lawful arrest unlawful, nor does its absence render an illegal arrest legal.

3. In an action for unlawful arrest, the existence of actual malice is of consequence only as affording a basis for exemplary damages.

4. Under the provisions of G.S.1949, 15-508 (now K.S.A. 15-508), proceedings may be initiated in the police court of a city of the third class to collect on recognizance bonds forfeited in such court.

5. A person who merely signs a complaint before a magistrate having general jurisdiction over the subject matter, and does nothing more, is not liable in an action for false arrest, even though the complaint is insufficient or the proceeding erroneous.

6. The record in an action for false arrest is examined and it is held: That the petition fails to state a cause of action against either defendant and that the defendants' demurrer thereto was improperly overruled.

Kenith R. Howard, Jr., Mission, was on the briefs for appellants.

W. C. Jones, Olathe, was on the briefs for appellee.

FONTRON, Justice:

This is an appeal from an order overruling the defendants' demurrer to the plaintiff's petition. The demurrer set forth two grounds: (1) That the petition fails to state facts sufficient to constitute a cause of action, and (2) misjoinder of causes of action. However, the defendants (appellants) now rely solely on the first ground of their demurrer and, in this opinion, we shall confine ourselves to that point.

In substance, the petition alleges that the defendants, Buford J. Lutz and Norman E. Gaar, were, respectively, the duly elected, qualified and acting mayor and police judge of the city of Westwood, Kansas; that about November 21, 1962, Mayor Lutz signed the following complaint against the plaintiff:

'STATE OF KANSAS

County of Johnson,

City of Westwood.} §§

In the Police Court of

Westwood, Kansas

'Buford J. Lutz, Mayor of the City of Westwood being duly sworn, on oath says, that on or about the 14th day of November, 1962, in the City of Westwood, County of Johnson, and State of Kansas, O. L. Holland d/b/a Johnson County Bonding Co. did then and there unlawfully, refuse to pay a debt of $198.00 owed to said City by virtue of the failure of Lawerence Cox to appear in the Police Court of said City on said date, said O. L. Holland having guaranteed said appearance by executing as surety the recognizance of said Lawerence Cox to appear in said court when summoned. Contrary to sections 15-507 and 15-508 G.S.1949.

'/s/ Buford J. Lutz

'Subscribed and sworn to before me, this 21st day of November, 1962.

'/s/ Norman E. Gaar' and that thereafter Judge Gaar issued a warrant for plaintiff's arrest which, omitting formal parts, is as follows:

'THE STATE OF KANSAS TO THE MARSHALL OF THE CITY OF WESTWOOD IN SAID COUNTY:

'WHEREAS, Complaint in writing, under oath, has been made to me, and it appearing that there are reasonable grounds for believing that on the 14th day of November, A. D. 1962, in the city of Westwood in Johnson county and State of Kansas, one O. L. Holland d/b/a Johnson County Bonding Co. did then and there UNLAWFULLY refuse to pay $198.00 forfeited surety bond upon the failure of Lawerence Cox to appear in the Police Court of said City, contrary to sections 15-507 and 15-508, G.S.1949.

'YOU ARE THEREFORE COMMANDED, Forthwith, to arrest said O. L. Holland d/b/a Johnson County Bonding Co. and bring him before me at my office, in said city, to answer said charge, and then and there return this writ.

'WITNESS my hand, at my office, in said City, this 21st day of November, A.D. 1962.

'/s/ Norman E. Gaar

Police Judge.'

'(Seal)

The petition further alleges that plaintiff was arrested and placed in custody pursuant to the warrant, and entered into a $250.00 cash recognizance bond, which the city still holds; that upon a hearing, Gaar, as police judge, entered judgment against plaintiff for $198.00 and $1.00 costs; that this judgment was appealed to the district court of Johnson county, Kansas, where the proceedings against plaintiff were quashed on the grounds that the police court of Westwood had no jurisdiction to render the judgment, and that the purported cause of action was civil in nature and enforceable only in a court of competent jurisdiction; that thereafter the city of Westwood took an appeal to the Supreme Court of Kansas, which is pending; and that plaintiff was forced to employ counsel to represent him in all three courts.

It is alleged further that the acts of defendants were unlawful and unjustified in that (1) the police court had no jurisdiction of either the subject matter or the person; (2) that the allegations contained in the complaint and warrant did not violate any ordinance of Westwood; (3) that none of the proceedings in either complaint or warrant charged a public offense; and (4) that the judgment entered against the plaintiff was a departure from the criminal proceedings instituted against him.

The petition concludes with allegations that the arrest was circulated extensively in Johnson county and published in newspapers by reason of which the plaintiff's reputation was injured; that the defendants acted maliciously with a design to injure plaintiff, well knowing that the complaint failed to state a crime, and that the court was without jurisdiction; that plaintiff has been damaged in the sum of $10,000.00, and is entitled to exemplary damages of $25,000.00.

To complete the picture, we should point out that our opinion in the case of City of Westwood v. Holland, 193 Kan. 375, 394 P.2d 56, heard by this court after the present case was filed, sustained the lower court's judgment quashing the proceedings.

The gist of plaintiff's alleged cause of action is that he was unlawfully restrained of his liberty by the actions of the two defendants. Whether this be denominated false imprisonment or false arrest is immaterial, for it is said that false arrest False Imprisonment, §§ 2, 3, pp. 353, 354.) are indistinguishable. Both consist of the illegal restraint of one person's liberty by the act of another person. (22 Am.Jur., False Imprisonment, §§ 2, 3 pp. 353, 354.) Accordingly, the same legal principles are applicable to both torts regardless of how the cause of action may be termed.

In disposing of this case, we shall consider the liability of each defendant separately; first, that of Judge Gaar, and next, that of Mayor Lutz. At this point, however, we pause to note that malice is not a material element of false arrest or imprisonment. The motive with which a restraint of liberty is accomplished, be it evil or good, is irrelevant to the question of whether or not an unlawful arrest has been established. The existence of actual malice is of consequence only as it may afford the basis for punitive damages. In Garnier v. Squires, 62 Kan. 321, 62 P. 1005, this court said:

'As will be seen, malice and wilfulness are not essential elements of false imprisonment; and the motives of the defendant, whatever they may have been, are not material to the case, so far as making out a right of action is concerned, and can never be material except where something more than compensatory damages are sought. If exemplary damages are sought, proof of malice in making an arrest or imposing restraint is competent. * * *' (p. 324, 62 P. p. 1006.)

See also Comer v. Knowles, 17 Kan. 436; 22 Am.Jur., False Imprisonment, §§ 22-27, pp. 368-370; 35 C.J.S., False Imprisonment, § 7, pp. 629-631.

Proceeding to the merits, we may state it is a general, if not, indeed, the universal, rule that where a person acts in a judicial capacity he has immunity from liability for false arrest or imprisonment, so long as he acts within the scope of his jurisdiction. (22 Am.Jur., False Imprisonment, § 52, p. 390.) This rule is expressed in 35 C.J.S., False Imprisonment § 44a, p. 705, in this wise:

'Based on the principle that all judicial officers are protected by their official character from liability in tort, because of public conduct clearly within the pale of their authority, although involving demonstrable legal error, * * * it is the general rule that a judicial officer is not liable for a false arrest or detention arising out of acts done in his judicial capacity where there is not a clear absence of all jurisdiction over the subject matter and person, even though such acts constitute an excessive or erroneous exercise of jurisdiction or involve a decision that the officer had jurisdiction over the particular case where in fact he had none. The rule is sometimes stated in somewhat different terms to the effect that a judicial officer is not liable when the arrest or detention is in a case belonging to a class over which he has cognizance, and is by complaint or other proceedings put at least colorably under his jurisdiction.'

This was early declared to be the law in Kansas. In Clark v. Spicer, 6 Kan. 440, it was held:

'It is a general principle of law that whenever a judicial officer acts within the scope of his jurisdiction he is not liable, however erroneous his acts may be.' (Syl. p1.)

The rationale of this doctrine is not difficult to comprehend. It is to society's interest that judicial officers be free to exercise their best independent judgment, and to act in accordance with their own convictions without fear of personal consequences. In ...