Koch v. Grimminger, 39494

• Decision Date: 12 December 1974
• Docket Number: No. 39494,39494
• Citation: 223 N.W.2d 833,192 Neb. 706
• Parties: , 79 A.L.R.3d 874 Kenneth R. KOCH, Appellant, v. Sam GRIMMINGER and Willa Koch, Appellees.
• Court: Nebraska Supreme Court

Page 833

223 N.W.2d 833

192 Neb. 706, 79 A.L.R.3d 874

Kenneth R. KOCH, Appellant, v. Sam GRIMMINGER and Willa Koch, Appellees.

No. 39494.

Supreme Court of Nebraska.

Dec. 12, 1974.

Syllabus by the Court

1. Where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision, provided the acts complained of are done within the scope of the officer's authority, and without willfulness, malice, or corruption.

2. When the law commits to any officer the duty of looking into facts and acting upon them, not in a way which it specifically directs, but after a discretion in its nature judicial, the function is quasi-judicial.

3. A public prosecutor, acting within the general scope of his official authority in making a determination whether to file a criminal prosecution, is exercising a quasi-judicial and discretionary function and, where he acts in good faith, he is immune from suit for an erroneous or negligent determination.

4. An allegation that an act was done maliciously but without any pleading of the ultimate facts from which malice may be inferred is a mere legal conclusion and is insufficient to raise an issue of fact so as to withstand a general demurrer.

William A. Wieland, Healey, Healey, Brown, Wieland & Burchard, Lincoln, for appellant.

John A. Wagoner, Grand Island, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

CLINTON, Justice.

Plaintiff-appellant brought this action for false arrest and imprisonment against the defendant Sam Grimminger, county attorney of Hall County, and the defendant Willa Koch, former wife of the plaintiff. The defendant Grimminger filed a general demurrer, which the District Court sustained. The plaintiff elected to stand on his petition and the defendant Grimminger was dismissed from the action. Plaintiff appealed. We affirm.

The issue in the trial court and here is whether the third amended petition of the plaintiff pleaded facts sufficient to constitute a cause of action against Grimminger. The determination of that issue turns upon whether or not, under the facts alleged, the county attorney was immune from suit.

The petition alleged: That the defendant Grimminger was the county attorney of Hall County and at the times mentioned in the petition was acting 'within the scope of his office as County Attorney'; that the defendant Willa Koch had been divorced from the plaintiff on October 26, 1967, in Hall County and that the decree in the action ordered the plaintiff in this case to pay Willa Koch child support in the amount of $100 per month; that on February 23, 1971, the plaintiff had made advance payments in the amount of more than $700 on the child support judgment and had paid them into the office of the clerk of the District Court for Hall County; that on February 23, 1971, the defendant Willa Koch reported to the defendant Sam Grimminger that the plaintiff was in arrears in the support payments and she that day requested Grimminger to file a criminal complaint against the plaintiff; that on February 23, 1971, Grimminger did file a criminal complaint against him; (the petition does not allege under what section of the statute the complaint was filed, but apparently it was section 28--450, R.R.S.1943); that as a consequence a warrant was issued and the defendant was placed under arrest; and that the complaint was dismissed without prosecution. The petition alleged the particulars of the claimed damage. It further alleged that such damage was proximately caused by the following acts and omissions of Grimminger: 'a) He executed said complaint and filed said charges without probable cause, when in the exercise of reasonable care he would not have done so. b) He failed to ascertain the status of said child support payments by the plaintiff prior to executing said complaint and filing said charges, when in the exercise of reasonable care he would have done so. c) He failed to ascertain the status of said child support payments prior to proceeding with the prosecution of plaintiff even though the plaintiff informed him said payments had been made, when, in the exercise of reasonable care he would not have so acted.' The petition then, under the heading of other theories of recovery, but without further factual allegation, characterized the conduct of Grimminger as 'intentional and wreckless (sic),' 'malicious,' and done 'with the intention to confine the plaintiff within boundaries set by the defendants,' and that the acts constituted 'false imprisonment' and 'false arrest.'

This court has on many occasions considered the question of immunity from suit of a public officer for torts committed in the course of his official duties. The applicable principle has always been stated in approximately the same language. In Allen v. Miller, 142 Neb. 469, 6 N.W.2d 594, we quoted from 22 R.C.L., § 163, p. 485, as follows: "Where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him he is sometimes called a quasi judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision, provided the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption." In School Dist. of Minatare v. County of Scotts Bluff, 189 Neb. 395, 202 N.W.2d 825, we restated the rule in the same language and also said: 'When the law commits to any officer the duty of looking into facts and acting upon them, not in a way which it specifically directs, but after a discretion in its nature judicial, the function is quasi judicial.' Both of the above cases involved the acts of county commissioners. No Nebraska cases have been cited and we have found none from this jurisdiction which considered the question of the liability of a public prosecutor for errors committed in the scope of carrying out his duties as the prosecutor. The apparent rule in most jurisdictions is that the public prosecutor's conduct is privileged and that he is absolutely immune from suit. Restatement, Torts, sets forth the rule in the following language: 'A public prosecutor acting in his official capacity is absolutely privileged to initiate or continue criminal proceedings.' Restatement, Torts, § 656, p. 392.

The rationale for the rule of absolute privilege is set forth in Gregoire v. Biddle, 2 Cir., 177 F.2d 579. It is there held to apply even though the motive is corrupt. Policy considerations as to the extent of the doctrine of the immunity of public officers generally is extensively discussed in the various opinions in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434.

Section 895D of Tentative Draft No. 19, Restatement 2d, Torts, p. 38, would afford absolute immunity to judicial and legislative officers for acts within the general scope of their authority while exercising a judicial or legislative function and a qualified immunity to officers performing administrative acts. The qualified immunity applies, among other situations, when the officer is exercising a discretionary function. The rationale for the immunity is stated in Comment c in the following language: 'A judge of a...