Sampson v. Rumsey

• Decision Date: 15 April 1977
• Docket Number: Nos. 48215,48224,s. 48215
• Citation: 563 P.2d 506,1 Kan.App.2d 191
• Parties: Sherman H. SAMPSON, Appellant, v. James RUMSEY, Appellee. Sherman H. SAMPSON, Appellant, v. Keith SANBORN, Appellee.
• Court: Kansas Court of Appeals

Page 506

563 P.2d 506

1 Kan.App.2d 191

Sherman H. SAMPSON, Appellant, v. James RUMSEY, Appellee.

Sherman H. SAMPSON, Appellant, v. Keith SANBORN, Appellee.

Nos. 48215, 48224.

Court of Appeals of Kansas.

April 15, 1977.

Syllabus by the Court

1. An affidavit of prejudice filed in accordance with K.S.A. 20-311d(a) applies to the disqualification of only one judge and not all judges in a multi-judge district.

2. Absolute privilege is founded on public policy and provides immunity for those engaged in the public service and in the enactment and administration of law. (Marney v. Joseph, 94 Kan. 18, 20, 145 P. 822.)

3. A defamatory statement uttered by an attorney in the trial of a case is not actionable if it has reference to the cause under consideration, although false and malicious.

4. Words of general abuse, regardless of how rude, uncouth or vexatious, are not slanderous per se and cannot support recovery in a slander action in the absence of a showing of special damages.

5. It is the duty of a prosecuting attorney to inquire into alleged offenses within his jurisdiction and if the inquiry disclose the fact that an offense has been committed, he must institute proceedings for its punishment.

6. The same policy considerations requiring absolute immunity for communications made during the course of a prosecution require immunity for conduct by a prosecutor in investigations which may lead to a prosecution. The power of a prosecuting attorney to investigate alleged violations within his jurisdiction is unquestionable and his motive in so doing may not be the subject of a lawsuit against him.

John Terry Moore, Miller, Connolly & Moore, Wichita, for appellant.

E. Lael Alkire and John D. Clark, Alkire, Clausing, Wilkinson & Wilson, Wichita, for appellee, James Rumsey.

Richard K. Hollingsworth, Sp. Asst. Dist. Atty., and Stephen M. Joseph, Asst. Dist. Atty., for appellee, Keith Sanborn.

Before FOTH, P. J., and ABBOTT and PARKS, JJ.

PARKS, Judge:

Plaintiff, Sherman H. Sampson, has filed separate appeals from orders of the district court of Sedgwick County, Kansas, sustaining the motions of the defendants, James Rumsey and Keith Sanborn, to dismiss plaintiff's actions for failure to state a claim upon which relief can be granted. The petition was framed in slander, conspiracy to slander, abuse of process, invasion of privacy, and intrusion on seclusion.

The plaintiff's alleged causes of action arose out of the same trial, State of Kansas v. James Baker, et al., Sedgwick County District Court Case No. CR 10346. In his appeals plaintiff has raised substantially identical claims of error. The appeals were consolidated for oral argument and are consolidated for decision.

The facts may be summarized as follows: On July 15, 1974, the Sedgwick County district attorney's office prepared a criminal complaint and issued a warrant charging James Baker and his wife with four counts of conspiracy to sell and the sale of heroin. The appellees-defendants (Keith Sanborn, the then Sedgwick County district attorney, and James Rumsey, an assistant district attorney) prosecuted the action. During the trial, the plaintiff Sampson was called as a witness for the state. The trial was before a jury which returned a verdict of 'not guilty' for the Bakers.

The following statements were made by defendant Rumsey in his closing argument to the Baker jury: 'If anybody ever smacks of public corruption, Sherman Sampson certainly did. . . . Sherman Sampson's son got up here and testified and he told us Sherman Sampson was a liar. . . . I went to great lengths to show he was a liar. He didn't say what he was a liar about. He just said he lied. . . . Oh Sherman Sampson, see what a son of a bitch he is. . . .'

Plaintiff filed two four-count petitions (both petitions were later amended) to which each of the defendants filed a motion to dismiss. All four counts of the petition applied to defendant Sanborn, while only Counts II and III applied to defendant Rumsey.

Plaintiff next filed an affidavit of prejudice in the trial court seeking removal of all judges in the 18th Judicial District. It was plaintiff's opinion that he could not get a fair and impartial trial because of the close relationship that had existed over the years between the judges and the district attorney. The affidavit was assigned to the Honorable William P. Meek of the 11th Judicial District for a determination of its legal sufficiency. Judge Meek ruled that the affidavit of prejudice was insufficient because K.S.A. 20-311f(a) does not allow the disqualification of more than one judge in any affidavit filed pursuant to K.S.A. 20-311d. Following this ruling, the case was reassigned to Judge Kline. The refusal to disqualify all the judges in the district is assigned as plaintiff's first claim of error.

A primary rule for the construction of a statute is to find the legislative intent from the language, and where the language used is plain and unambiguous and also appropriate to an obvious purpose, the court should follow the intent as expressed by the words used. (State v. V. F. W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020; City of Overland Park v. Nikias, 209 Kan. 643, 498 P.2d 56.)

K.S.A. 20-311f(a) provides:

'No party shall be granted more than one change of judge in any action, but each party shall be heard to urge his objections to a judge in the first instance: Provided, however, That a party shall have seven (7) days after pretrial, or after written notice of the judge to which the case is assigned or before whom the case is to be heard, whichever is later, in which the affidavit may be filed.'

We are unable to give the effect to the statute in question sought by plaintiff on the theory advanced that it applies to all judges in a multi-judge district. It is clear that the legislature used the word 'judge' in a singular form to restrict the use of the affidavit of prejudice to the disqualification of only one judge.

Following a hearing on defendants' motions to dismiss, the trial court sustained the motion of defendant Sanborn on Counts II, III, and IV and further sustained the defendant Rumsey's motion on all counts. In dismissing these counts, the trial court found that the plaintiff had failed to state a cause of action against the defendants.

On December 10, 1975, Count I of plaintiff's petition, which survived defendant Sanborn's motion to dismiss, was dismissed without prejudice by the plaintiff with the approval of the defendant and the trial court, and is not part of this appeal.

Plaintiff argues that the trial court erred in dismissing Counts II, III, and IV of his amended petition. Counts II and III alleged slander, conspiracy to commit slander and abuse of process as to both Sanborn and Rumsey. Court IV alleged invasion of privacy and intrusion upon plaintiff's seclusion against Sanborn only.

We consider first the dismissal of Counts II and III. In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept as true conclusory allegations as to the legal effect of events the plaintiff has set out, if these allegations do not reasonably follow from the description of what happened or if these allegations are contradicted by the description itself. (Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P.2d 875, Syl. 3.)

The standards to be applied in establishing absolute immunity for prosecuting attorneys may be summarized by the following statements and authorities: In Clear Water Truck Co., Inc. v. M. Bruenger & Co., Inc., 214 Kan. 139, 142-143, 519 P.2d 682, the court cited with approval the following rule of absolute privilege in judicial proceedings referred to in Froelich v. Adair, 213 Kan. 357, 516 P.2d 993:

'. . . Judicial proceedings are absolutely privileged communications, and statements in the course of litigation otherwise constituting an action for slander, libel, or one of the invasion of privacy torts involving publication, are immune from such actions. They are privileged communications because of the overriding public interest in a free and independent court system. This absolute privilege extends immunity to parties to private litigation and to anything published in relation to a matter at issue in court, whether said in pleadings, affidavits, depositions or open court. (Weil v. Lynds, 105 Kan. 440, 185 P. 51.)'

Absolute privilege is founded on public policy and provides immunity for those engaged in the public service and in the enactment and administration of law. It is not intended so much for the protection of those engaged in that service as it is for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for recovery of damages. (Marney v. Joseph, 94 Kan. 18, 20, 145 P. 822.)

The rule is settled by our former decisions that a defamatory statement uttered by an attorney in the trial of a case is not actionable if it has reference to the cause under consideration, although false and malicious. (Latimer v. Oyler, 108 Kan. 476, 480, 196 P. 610.)

In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court concluded that the prosecutor enjoys the same absolute immunity under the federal civil rights act as he did at common law:

'We conclude that the considerations outlined above dictate the same absolute immunity under (Title 42 U.S.C.) § 1983 that the prosecutor enjoys at...