McCormick v. Board of Shawnee County Comm'rs

• Decision Date: 07 December 2001
• Docket Number: No. 85,499.,85,499.
• Citation: 35 P.3d 815,272 Kan. 627
• Parties: DALE E. McCORMICK, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF SHAWNEE, COUNTY, KANSAS; SHAWNEE COUNTY; CYNTHIA J. LONG AS A PRIVATE INDIVIDUAL; CYNTHIA J. LONG AS A DEPUTY DISTRICT ATTORNEY; and JOAN HAMILTON AS A PRIVATE INDIVIDUAL, Appellees.
• Court: Kansas Supreme Court

272 Kan. 627

35 P.3d 815

DALE E. McCORMICK, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF SHAWNEE, COUNTY, KANSAS; SHAWNEE COUNTY; CYNTHIA J. LONG AS A PRIVATE INDIVIDUAL; CYNTHIA J. LONG AS A DEPUTY DISTRICT ATTORNEY; and JOAN HAMILTON AS A PRIVATE INDIVIDUAL, Appellees.

No. 85,499.

Supreme Court of Kansas.

Opinion filed December 7, 2001.

Dale E. McCormick, of Lawrence, argued the cause pro se and was on the briefs for appellant.

M. J. Willoughby, assistant attorney general, argued the cause, and Carla J. Stovall, attorney general, was with her on the briefs for appellees Hamilton and Long.

Richard V. Eckert, county counselor, was on the brief for appellee Board of County Commissioners of Shawnee County and Shawnee County.

Angela M. Wilson and David Miller, of the Douglas County Judicial and Law Enforcement Center, of Lawrence, were on the brief for amicus curiae Kansas County and District Attorneys Association.

The opinion of the court was delivered by

ABBOTT, J.:

Appellee Cynthia J. Long, assistant district attorney for Shawnee County, Kansas, signed a probable cause affidavit on September 8, 1999, and filed a criminal complaint against appellant Dale E. McCormick for stalking. K.S.A. 21-3438. The complaint was voluntarily dismissed by the State. The day after the complaint was dismissed, McCormick was detained by the University of Kansas police for approximately 1 hour while police determined if a warrant remained outstanding. McCormick, acting pro se, brought suit alleging negligence, various other tort claims, and a claim under 42 U.S.C. § 1983 (1994) against Long, the Board of County Commissioners of Shawnee County (Board), the Shawnee County District Attorney's office, and district attorney Joan Hamilton. On June 1, 2000, the district court granted defendants' motions to dismiss McCormick's petition. McCormick appealed the dismissal.

The Court of Appeals affirmed the district court's dismissal of McCormick's claims against the Board and Hamilton and found that the claim against the district attorney's office had been abandoned on appeal. McCormick v. Board of Shawnee County Comm'rs, 28 Kan. App.2d 744, 745, 24 P.3d 739 (2001). However, as to McCormick's claim against Long, the Court of Appeals held that while the act of filing a complaint fell within the duties of a prosecutor, signing a probable cause affidavit did not. Thus, the court concluded that, in regard to signing the probable cause affidavit, Long was not entitled to absolute prosecutorial immunity or qualified immunity as to the § 1983 claim, nor was she immune from liability on the state tort law claims under either the public duty doctrine or discretionary function exception to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. This court granted Long's petition for review.

The 8-page probable cause affidavit prepared by Long to support the felony stalking complaint began with the following prefatory statement:

"I, Cynthia J. Long, Assistant District Attorney, being of lawful age and first duly sworn upon my oath, depose and state as follows: that I have received the following information from official TPD 20981-99; 19726-99; 20409-99; 25184-99 and from officers whom I know from past investigations to be truthful and reliable."

The final paragraph of the affidavit stated:

"All of the aforementioned events occurred in Shawnee County, Kansas. Wherefore the affiant believes that there are reasonable grounds and probable cause to believe that DALE E. MCCORMICK committed the crimes described above and prays the Court issue a warrant for his/her arrest."

The State voluntarily dismissed the complaint on September 28, 1999. On September 29, 1999, officers of the University of Kansas Public Safety Office, believing there was an active arrest warrant for McCormick, took him into custody and detained him for approximately 1 hour. As a result of his arrest and detention, McCormick filed this litigation, asserting various tort claims and a § 1983 claim. McCormick's petition included the following factual allegations:

"10. On or about the 8th day of September, 1999, while in connivance with other private persons and governmental entities, Cynthia J. Long, acting as an agent of Shawnee County and the [Shawnee County District Attorney's office], swore her name to a `felony stalking' `complaint' against plaintiff in Shawnee County District Court. This utterly fraudulent `complaint' caused a charge of `felony stalking' to lie against plaintiff, subsequently causing a `felony warrant' to issue for the arrest of plaintiff. The case number of this malicious prosecution was 99-CR-3636.

"As a `specific' averment of `fraud,' said `complaint' alleged that plaintiff had been feloniously `stalking' [Y.H.] since 12-31-98. In reality, plaintiff and [Y.H.] had a strange but intimate relationship through June of 1999, several weeks prior to [Y.H.] making her first fraudulent `police report' against plaintiff on 6-27-99. Ms. Long was possessing [sic] of information that established these facts, but she deliberately excluded this information from the false and fraudulent `felony stalking complaint' and `affidavit' she `swore' against plaintiff. Ms. Long intentionally, or with utterly malicious negligence, caused a magistrate to be deceived into allowing this fraudulent `stalking' charge to lie against plaintiff, subsequently causing said magistrate to issue `felony warrants' for the arrest of plaintiff.

"12. The `felony stalking' `complaint' and `affidavit' that Ms. Long swore against plaintiff on or about 9-8-99, were perjured, and could scarcely have been more contradictory, false, deceptive, deceitful, or misrepresentative of the facts and circumstances surrounding plaintiff's relationship with [Y.H.]. The utter falsity of these instruments `sworn' by Ms. Long clearly attaches liability to each of the defendants for damages suffered by plaintiff as a result of the ensuing malicious prosecution."

After reviewing the motions to dismiss filed by the defendants, the district court held that McCormick failed to state a claim for which relief could be granted against the Shawnee County District Attorney's office. The district court considered Hopkins v. State, 237 Kan. 601, 702 P.2d 311 (1985), and K.S.A. 22a-101 et seq., and found that the legislature had not created statutory capacity for the District Attorney's office to be sued. In addition, because there was no cause of action against the District Attorney's office, the court found that the requested injunctions could not be granted. In regard to McCormick's claims against Hamilton, the district court concluded that: (1) there was no privity between Hamilton and Long, and thus no privity between Hamilton and McCormick; (2) Hamilton owed no duty to McCormick for which she could be held liable; (3) because the District Attorney's office could not be held liable, Hamilton could not be held personally liable; (4) even if Hamilton had been aware of the issuance of the warrant, there was no causal connection between her knowledge and McCormick's detention by University of Kansas police; (5) K.S.A. 75-6104(e) provided her immunity under the discretionary function exception to the KTCA; and (6) Hamilton had absolute prosecutorial immunity under Kalina v. Fletcher, 522 U.S. 118, 139 L. Ed. 2d 471, 118 S. Ct. 502 (1997).

As to Long, the district court also found McCormick had failed to state a claim upon which relief could be granted because: (1) the only action by Long resulting in harm to McCormick was that she signed a criminal complaint and affidavit leading to the issuance of an arrest warrant; (2) to recover in negligence, McCormick must prove, among other things, the existence of a duty, but Long owned no specific duty to McCormick; (3) McCormick could not demonstrate any deprivation of rights or negligence; (4) Long was acting within her prosecutorial discretion when she filed charges against McCormick; (5) McCormick could not show that Long's conduct resulted in his detention; (6) Long enjoyed immunity under the KTCA; and (7) Long enjoyed absolute prosecutorial immunity under Kalina.

On June 16, 2000, McCormick appealed the district court's dismissal. Upon review, the Kansas Court of Appeals found that because McCormick abandoned his claim for injunctive relief in his written brief, he effectively removed the District Attorney's office from the litigation. As to the other defendants, the Court of Appeals held the district court had properly granted the motions to dismiss as to the Board and Hamilton. However, it held that Mc-Cormick's petition had alleged cognizable claims under § 1983 and state tort law against Long in connection with swearing out the probable cause affidavit. This court granted Long's petition for review of the Court of Appeals' decision. Upon appellate review of a district court's order granting a motion to dismiss for failure to state a claim, this court is required to assume that the facts alleged by the plaintiffs are true, along with any references reasonably to be drawn therefrom. We must also decide whether those facts and inferences state a claim on the theories presented by the plaintiffs and also on any other possible theory. Smith v. State, 264 Kan. 348, 353, 955 P.2d 1293 (1998).

I. § 1983 CLAIM

Here, Long requests this court to review and vacate the portion of the Court of Appeals' decision reversing the district court's dismissal of McCormick's action against her. Long argues that the Court of Appeals made a misstatement when it held she was "not entitled to qualified immunity" from McCormick's § 1983 claim. More specifically, Long contends that the Court of Appeals applied the wrong analysis in holding that Long was not entitled to qualified immunity, and urges this court to analyze the qualified immunity issue using a heightened pleading standard.

As noted by our Court of Appeals, "prosecutors have absolute immunity for activities intimately...