Mauro v. Kittitas County

• Citation: 613 P.2d 195,26 Wn.App. 538
• Decision Date: 24 June 1980
• Docket Number: No. 3424-III-1,3424-III-1
• Parties: Peter B. MAURO, Appellant, v. COUNTY OF KITTITAS, State of Washington, Respondent.
• Court: Washington Court of Appeals

Page 538

26 Wn.App. 538

613 P.2d 195

Peter B. MAURO, Appellant, v. COUNTY OF KITTITAS, State of Washington, Respondent.

No. 3424-III-1.

Court of Appeals of Washington, Division 3, Panel Three.

June 24, 1980.

Kenneth Watts, Casey, Watts & Champagne, Clement F. Yuse, Spokane, for appellant.

Joseph Panattoni, Pros. Atty., David H. Gorrie, Deputy Pros. Atty., Ellensburg, for respondent.

ROE, Judge.

Peter Mauro appeals the summary judgment dismissal of his false arrest suit against defendant county.

Mauro received a citation for speeding in 1976 in Kittitas County. He failed to appear in court on the date set for trial and a warrant was issued for his arrest. He contacted the court and was told that if he paid $60, "We will withdraw the warrant, notify Olympia and clear your record." The money was sent, receipt acknowledged by the court, and an order withdrawing the warrant was executed but never processed. Because of that, 7 months later in Spokane County, while in the company of his friends, Mauro was arrested on the basis of the outstanding Kittitas County warrant. He was booked into jail and released 5 hours later upon posting bail. He initially sought damages and expungement of his records from the Kittitas County commissioners, but they apparently took no action on the request.

An order withdrawing the warrant actually had been executed by the court commissioner (judge). The Kittitas County Deactivation Process of Warrants requires hand delivery of the order to the sheriff's office for removal from the WACIC ¹ computer system. What happened to the order withdrawing the warrant remains a mystery. No one at the court remembers having made the delivery to the sheriff's office and no records at the sheriff's department indicate that delivery was made. Hence, the warrant remained outstanding in the system; this produced the arrest.

Mauro sued the County of Kittitas, the Kittitas County District Court, the commissioner of the court and the sheriffs of Kittitas and Spokane Counties, seeking damages and a writ of mandamus to compel the expungement of all references and records relating to his arrest on the Kittitas bench warrant.

The trial court granted a summary judgment of dismissal, apparently concluding that the defendants were protected by judicial immunity. This appeal is against only the County of Kittitas. We reverse.

Kittitas County urges us to find its actions in this case shielded by judicial immunity, citing Creelman v. Svenning, 67 Wash.2d 882, 410 P.2d 606 (1966), and Loveridge v. Schillberg, 17 Wash.App. 96, 561 P.2d 1107 (1977). Defendant has misperceived those cases. Creelman involved a suit against Snohomish County and the State of Washington for damages as a result of alleged malicious prosecution by the Snohomish County prosecutor. The act in Creelman was an "official act," and involved the quasi-judicial immunity enjoyed by the prosecutor.

All parties concede that the prosecuting attorney, acting as he does in a quasi-judicial capacity, is, as a matter of public policy, immune from liability for acts done in his official capacity.

Creelman v. Svenning, supra 67 Wash.2d at 884, 410 P.2d at 607.

Further:

If the prosecutor must weigh the possibilities of precipitating tort litigation involving the county and the state against his action in any criminal case, his freedom and independence in proceeding with criminal prosecutions will be at an end.

Creelman v. Svenning, supra, at 885, 410 P.2d at 608.

In Loveridge v. Schillberg, supra, the prosecuting attorney had failed to furnish statutorily required minimum term information to the parole board. The court, at page 99, classified this action as encompassed by the prosecutor's "function as an advocate" and concluded the action was "intimately associated with the judicial phase of the criminal process, . . ." (Italics ours.) Loveridge v. Schillberg, supra, 17 Wash.App. at 99, 561 P.2d at 1109, quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976). In the case at bench, the actions are not "intimately associated with the judicial phase of the criminal process," nor would they curtail freedom or independence in proceeding therein.

The act in this case was not a judicial act because the order had been executed by the judge. It was not a discretionary act, but was a purely ministerial act of a clerk of either the court or the sheriff's department. In Loveridge, the prosecutor was under a duty to perform an act. In the case at bench, the judge had already signed the order withdrawing the warrant.

In a case with similar facts, Dalton v. Hysell, 56 Ohio App.2d 109, 381 N.E.2d 955 (1978), a clerk failed to record the payment of a fine, which resulted in the issuance of an arrest warrant and in Dalton's subsequent arrest while at work. Dalton sued the court clerk personally for negligent failure to record payment. The court held that judicial immunity would not apply to protect the clerk from a negligence suit...