Kimbley v. City of Green River

• Decision Date: 06 May 1983
• Docket Number: No. 5815,5815
• Citation: 663 P.2d 871
• Parties: Kathleen KIMBLEY and Clyde Kimbley, Jr., Appellants (Plaintiffs), v. CITY OF GREEN RIVER, Wyoming; Sweetwater County, Wyoming; State Department of Criminal Investigation, State of Wyoming; Roger Sims; Don Beckum; James Rountree; Larry Paine; Joe Jaramillo; Ken Atwood; The Sheriff of Sweetwater County, Wyoming, James Stark; The Former Chief of Police for the City of Green River, Wyoming, Robert Mizel; and Steve Rubcic, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 871

663 P.2d 871

Kathleen KIMBLEY and Clyde Kimbley, Jr., Appellants (Plaintiffs), v. CITY OF GREEN RIVER, Wyoming; Sweetwater County, Wyoming; State Department of Criminal Investigation, State of Wyoming; Roger Sims; Don Beckum; James Rountree; Larry Paine; Joe Jaramillo; Ken Atwood; The Sheriff of Sweetwater County, Wyoming, James Stark; The Former Chief of Police for the City of Green River, Wyoming, Robert Mizel; and Steve Rubcic, Appellees (Defendants).

No. 5815.

Supreme Court of Wyoming.

May 6, 1983.

Edward P. Moriarity of Spence, Moriarity & Schuster, Jackson, signed the brief and appeared in oral argument for appellants.

Richard J. Mathey, Green River, and Allan L. Larson of Snow, Christensen & Martineau, Salt Lake City, Utah, signed the brief for appellees City of Green River, Joe Jaramillo, Ken Atwood and Robert Mizel.

Bruce Jensen, Salt Lake City, Utah (argued), Richard E. Day and Patrick J. Murphy (argued) of Williams, Porter, Day & Neville, Casper, signed the brief for appellee Sweetwater County.

Glenn Parker (argued) and Harold F. Buck, of Hirst & Applegate, Cheyenne, signed the brief for appellees James Stark, Roger Sims, Don Beckum, James Rountree, Larry Paine, State Dept. of Crim. Investigation, and Steve Rubcic.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.

RAPER, Justice.

In Kimbley v. City of Green River, Wyo., 642 P.2d 443 (1982), we reversed and remanded this same case for the correction of procedural errors and further consideration by the district judge after correction. Corrective measures were taken. The district judge, thereafter, granted summary judgment for the appellees in this action brought by appellants against Green River, Sweetwater County, and various law enforcement officers. The complaint alleged negligence, malicious prosecution, assault and battery, violation of civil rights, and false imprisonment in obtaining and executing a warrant for the arrest of appellants on charges of first degree murder.

In this appeal appellants raise as issues:

1. "The trial court erred in extending judicial immunity to law enforcement officers.

"(A) The complaint stated a valid cause of action against the appellees.

"(B) Judicial immunity does not flow through to law enforcement officers.

"(C) Judicial immunity should not be used as a cloak to cover acts prior to and after the ministerial act of serving warrants.

"(D) There is a material question of fact as to whether a lawful warrant was ever issued in this case."

2. "The affidavit and complaint in this case failed to allege probable cause and the arrest warrant was obtained by false testimony and other improper means."

3. "There are material questions of fact in this case which preclude the granting of summary judgment and doing so denied the appellants procedural due process."

4. "The trial court erred in denying appellants['] motion for judgment on liability."

5. "The trial court erred in not granting appellants a hearing."

We will affirm.

On December 12, 1979, Clyde Kimbley, Sr., was killed by a short-range shotgun blast while he was sleeping in his bedroom. The appellants are the widow and son of the deceased. Law enforcement officers were called to the scene and a criminal investigation ensued, which continued for the next several weeks. A meeting of various appellee law enforcement officers was thereafter held with the county and prosecuting attorney for Sweetwater County. He authorized prosecution of the appellants for murder and prepared an affidavit of probable cause ¹ signed and sworn to by one of appellees, Deputy Sheriff Paine, Detective, in support of a criminal complaint charging appellants with first degree murder in violation of § 6-4-101, W.S.1977.

Peggy Beckum, a justice of the peace, Sweetwater County, upon the basis of the complaint and affidavit of probable cause, signed and issued an arrest warrant on a printed form which "commanded forthwith to apprehend the said Clyde Kimbley Jr. &amp Kathleen Kimbley * * *." She thereupon transferred the case to Nena James, another Sweetwater County justice of the peace who was out of the city at the time Justice of the Peace Beckum issued the warrant. A third justice of the peace was also not available when the complaint was filed and warrant issued. Appellants were arrested in Indiana and eventually extradited from there to Wyoming. Upon their return, counsel for the Kimbleys moved to dismiss the criminal complaint and warrant on the ground that the affidavit of probable cause was insufficient. Lengthy written briefs in support of and in opposition to the motion were filed with Justice of the Peace James. She took the motion under advisement and rendered a written opinion on the motion, which held that she was dismissing the first degree murder charge against appellant Kathleen Kimbley but not against appellant Clyde Kimbley, Jr. It was stated in the opinion that she did not consider issuance of the warrant by Judge Beckum to be a critical issue and that she attempted to judge the merits of the motion as if the complaint, affidavit, and warrant had been submitted to her. In that she found sufficient probable cause allegations to exist against appellant Clyde Kimbley, Jr., it was stated she would hold the previously scheduled preliminary hearing.

On the date set for appellant Clyde Kimbley's preliminary hearing, the county and prosecuting attorney moved to dismiss the charges against him. It was stipulated that the State lacked sufficient evidence.

The depositions of appellees Don Beckum, James Rountree, Larry Paine, Joe Jaramillo, Ken Atwood and Steve Rubcic were taken by appellants and appear in the file. No depositions of Roger Sims, Sweetwater County Sheriff James Stark, and Former Chief of Police, Green River, Robert Mizel, appear in the record. Not all of the deposition exhibits (copies of investigative reports) turned over to appellants at the time of taking depositions are in the record. In addition to the depositions of the before-named appellee parties, the deposition of Robert J. Reese, Sweetwater County Deputy County and Prosecuting Attorney, was taken by appellants and is part of the record. Prior to the taking of the depositions, affidavits of all appellee natural persons had been taken in support of the motion to dismiss which was considered by the district judge as a motion for summary judgment. Rule 12(b), W.R.C.P.

The individual appellee natural persons, as identified in the sequence in which they are listed on the complaint caption and their roles in the investigation as disclosed by the affidavits and depositions, are:

Roger Sims, Lieutenant Detective for sheriff's office. He asked for help from the Criminal Investigation Division, State of Wyoming; along with Officer Beckum, he took the statement of Kathleen Kimbley, after advising her of her constitutional rights; his affidavit states he withheld no information from the county attorney. He took no part in the decision to prosecute or what information would be presented to Justice of the Peace Beckum in the affidavit of probable cause.

Don Beckum, Detective for Sweetwater County sheriff's office and the husband of Peggy Beckum, Justice of the Peace. Realizing the possibility of an appearance of conflict of interest, he did not sign the affidavit of probable cause. He knew it would be taken before her because the only other available justices of the peace were out of town. He testified that the warrant was needed because Rubcic and Rountree were scheduled to leave for Indiana on Sunday to arrange the arrest and return to Wyoming of the appellants; it was then Friday. He was called to the crime scene shortly after the victim was found. Other officers were also present. He observed a handbag dumped in the hallway having the appearance of a phoney larceny. He did not think it was right--something was wrong with the crime scene--it appeared to have been rigged. The county attorney advised him the charges were dropped because there was not enough evidence to convict. This made him "madder than hell." He turned over to the county attorney all of his investigative material, and the county and prosecuting attorney made the decision as to what to use.

James Rountree, Detective with Sweetwater County sheriff's office. He was in Wichita, Kansas at the time of the shooting, when notified of the homicide by Beckum. He went to Indiana with Special Agent Rubcic of the Criminal Investigation Division, State of Wyoming, to arrange the arrest and return of appellants. Before departure he was instructed by the county and prosecuting attorney to have a polygraph of the Kimbleys taken and to reinterview them if possible. Upon arrival, he did not execute the warrants at once nor did he advise the Kimbleys that they had warrants for their arrest. He testified that this was a regular practice and explained that otherwise the appellant Kimbleys may not have taken the tests or agreed to an interview. He explained that an Indiana polygraph operator gave the tests which both appellants passed. He turned all of his investigative reports over to the county attorney who made the decision as to what went into the affidavit of probable cause.

Larry Paine, Detective Deputy Sheriff, Sweetwater County. He signed the affidavit of probable cause for issuance of a warrant of arrest based upon what he found in his role as investigator and the other reports of investigation by other officers. His duties were to investigate and report to the county attorney. He testified that the county and prosecuting attorney selected the facts to use and drafted the affidavit of probable cause.

Joe Jaramillo, Detective, Green River police department. He was dispatched to the murder scene immediately following the killing. He assisted in securing the crime scene, examined the premises, took photographs, and collected evidence. He and Deputy Sheriff Paine interviewed Kathleen, John, and Angela Kimbley, including a taped...