Kirk S. Freeman v. Tricia L. Thompson , 124 N.E.3d 74 ( 2019 )

FILED
May 06 2019, 8:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kirk S. Freeman Curtis T. Hill, Jr.
Law Office of Kirk Freeman Attorney General of Indiana
Lafayette, Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kirk S. Freeman, May 6, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-SC-2718
v. Appeal from the Tippecanoe
Superior Court
Tricia L. Thompson, The Honorable Robert B. Mrzlack,
Appellee-Defendant. Special Judge
Trial Court Cause No.
79D04-1806-SC-2140
Najam, Judge.
Statement of the Case
[1] Kirk S. Freeman, a Lafayette-based attorney, appeals the trial court’s dismissal
of his defamation complaint against Tippecanoe Superior Court Magistrate
Tricia L. Thompson for failure to state a claim upon which relief can be
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granted. Freeman raises a single issue for our review, which we restate as
whether Magistrate Thompson has immunity from Freeman’s allegation that
she defamed him when she reported to courthouse law enforcement officers
that Freeman was in possession of a firearm inside the Tippecanoe County
Courthouse in violation of state law and local ordinance. We hold that
Magistrate Thompson is immune from Freeman’s allegation, and, as such, we
affirm the trial court’s dismissal of Freeman’s complaint.
Facts and Procedural History
[2] On June 28, 2018, Freeman filed his complaint against Magistrate Thompson,
which Freeman later amended. According to his amended complaint, on May
17, 2017, Magistrate Thompson informed law enforcement officers inside the
Tippecanoe County Courthouse that Freeman was carrying a firearm inside the
courthouse in violation of Indiana Code Section 35-47-2-1 (2018) 1 and
Tippecanoe County Code § 130.01(C). 2 Freeman alleged that Magistrate
Thompson’s report “was a false accusation of a crime” and, as such, “was
defamatory per se.” Appellant’s App. Vol. 2 at 28-29. Freeman sought
“[p]unitive damages” from Magistrate Thompson for her allegedly “extreme
and outrageous” report, which he claimed was “done in retaliation for a lawful
inquiry into a matter of public record in his government,” namely, a prior
1
This statute generally prohibits the unlicensed carrying of a handgun.
2
This provision states that “[n]o person shall possess a deadly weapon in the County Courthouse . . . .”
Appellant’s App. Vol. 2 at 11.
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Access to Public Records Act (“APRA”) request Freeman had made
“concerning the establishment/creation of the courtroom in the County office
annex building . . . .” Id. at 7-10, 30. Freeman also alleged that Magistrate
Thompson’s report was in retaliation for Freeman having “openly discussed”
the Indiana Supreme Court’s recent opinion in Pinner v. State, 74 N.E.3d 226(Ind. 2017).
[3] Thereafter, the State, on behalf of Magistrate Thompson, moved to dismiss
Freeman’s complaint under Indiana Trial Rule 12(B)(6) for failure to state a
claim upon which relief can be granted. In particular, the State asserted that
Magistrate Thompson’s report to law enforcement, as alleged in Freeman’s
complaint, was a judicial act that entitled her to immunity from Freeman’s
claim. After a hearing, the trial court agreed with the State and dismissed
Freeman’s complaint. This appeal ensued.
Discussion and Decision
[4] Freeman appeals the trial court’s dismissal of his complaint pursuant to Trial
Rule 12(B)(6). As the Indiana Supreme Court has stated:
A 12(B)(6) motion tests the legal sufficiency of the complaint,
requiring that we accept as true all facts alleged in the complaint.
We review 12(B)(6) motions de novo and will affirm a dismissal if
the allegations are incapable of supporting relief under any set of
circumstances. We will also affirm the dismissal if the decision is
sustainable on any basis in the record.
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Esserman v. Ind Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind. 2017) (citations
and quotation marks omitted).
[5] And as we have explained:
It is well-settled that judges are entitled to absolute judicial
immunity for all actions taken in the judge’s judicial capacity,
unless those actions are undertaken in the complete absence of
jurisdiction. Mendenhall v. City of Indianapolis, 717 N.E.2d 1218,
1226 (Ind. Ct. App. 1999), trans. denied 735 N.E.2d 225 (Ind.
2000). The policy underlying this grant of immunity is the
preservation of judicial independence in the decision-making
process. Id. In determining whether a person is entitled to the
benefit of judicial immunity, we employ the functional approach
established by the United States Supreme Court. Id.[T]he factors determining whether an act by a judge is a
“judicial” one relate to the nature of the act itself, i.e.,
whether it is a function normally performed by a judge,
and to the expectations of the parties, i.e., whether they
dealt with the judge in his judicial capacity.
Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 55 L. Ed.
2d 331 (1978), reh’g denied. A third related factor considered by
courts is “whether the act or decision involves the exercise of
discretion or judgment, or is rather a ministerial act which might
as well have been committed to a private person as to a judge.”
Lowe v. Letsinger, 772 F.2d 308, 312 (7th Cir. 1985) (citing Ex
Parte Virginia, 100 U.S. 339, 348, 25 L. Ed. 676 (1879)).
Dawson v. Newman, 845 N.E.2d 1076, 1080-81 (Ind. Ct. App. 2006) (alteration
original to Dawson), trans. denied.
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[6] We have no hesitation concluding that Magistrate Thompson’s report to law
enforcement within the Tippecanoe County Courthouse that a person inside the
courthouse was in possession of a firearm, in violation of state law and local
ordinance, was an act taken in her judicial capacity. As to the first Stump
factor, it is beyond dispute that our trial judges have “considerable discretion in
matters of maintaining order and security for the courtroom . . . .” Williams v.
State, 690 N.E.2d 162, 169 n.11 (Ind. 1997); see also In re Courthouse Security in
Tippecanoe Cnty., 765 N.E.2d 1254, 1256 (Ind. 2002) (“We would expect that
the Sheriff would continue to work, as always, with the local judiciary to
understand and address their particularized security concerns.”).
[7] As to the second factor, a magistrate or other member of the judiciary who
makes an in-courthouse report of a security concern is dealing with others from
her position as a member of the judiciary. And, as to the third factor,
Magistrate Thompson’s report plainly involved the exercise of her discretion in
maintaining security and was not a mere ministerial act. Accordingly, as a
matter of law, Magistrate Thompson is entitled to absolute judicial immunity
for her report—even if erroneously made—of Freeman’s alleged possession of a
firearm inside the Tippecanoe County Courthouse.
[8] Nonetheless, Freeman asserts on appeal that Magistrate Thompson did not act
in her judicial capacity but rather out of retaliation for his APRA request and
his open discussion of Pinner. We cannot agree. Freeman’s assertions go to
Magistrate Thompson’s intent, not to whether she was acting in her judicial
capacity. Because we have determined that Magistrate Thompson’s report to
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law enforcement was a judicial act, her intent is immaterial. We have long
recognized that “judicial immunity is granted even when judges act maliciously
or corruptly.” Martin v. Heffelfinger, 744 N.E.2d 555, 558 (Ind. Ct. App. 2001)
(citing Lake Cnty. Juvenile Court v. Swanson, 671 N.E.2d 429, 435 (Ind. Ct. App.
1996), trans. denied). Accordingly, Freeman cannot show that the trial court
erred when it dismissed his complaint, and we affirm the trial court’s judgment.
[9] Affirmed.
Baker, J., and Robb, J., concur.
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