Citation Numbers: 216 N.W. 898, 56 N.D. 227, 56 A.L.R. 1217, 1927 N.D. LEXIS 94
Judges: Burke, Burr, Nuessle, Birdzell, Christianson
Filed Date: 11/25/1927
Status: Precedential
Modified Date: 10/19/2024
On the 25th day of November, 1925, C.F. Kelch, state's attorney of Morton county, received an anonymous letter charging the plaintiff, Mrs. Anna Kittler, with a felony, and stating, "if you don't see to it and get her out of town, there is a Women's Club in town that *Page 230 will either lynch or tar and feather her." A short time thereafter, said state's attorney received a letter purporting to come from the plaintiff, Mrs. Anna Kittler, which refers to the subject matter of the former letter, and admits the truth of the statements therein, charging the plaintiff with the commission of a criminal offense, and signed "Mrs. Anna Kittler." On receipt of the last letter, the state's attorney made a complaint before a justice of the peace, a warrant was issued, thereon, and the plaintiff was arrested. After an investigation it appearing that the signature on the second letter was a forgery, the action against the plaintiff was dismissed. Thereafter the plaintiff sued the said state's attorney, C.F. Kelch, the defendant in this action, for damages, alleging all the facts as stated herein, and further that the said defendant, "did falsely, fraudulently, maliciously, oppressively, willfully, knowingly, and negligently, and without probable cause make a criminal complaint against the plaintiff in writing, and affixed his name thereto."
A copy of the criminal complaint, the warrant and the sheriff's return on the warrant are made a part of the complaint in this action, all of which are regular in form and are sufficient in substance. The complaint also includes a statement made by the state's attorney after an investigation and which was manifestly intended to exonerate the plaintiff from the charge made against her in the criminal complaint. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action was sustained and the plaintiff appeals.
In oral argument in this court, the plaintiff's attorney insisted that this action is for false arrest, or false imprisonment and in his brief after quoting from the case of Watts v. Gerking,
"If the plaintiff's characterization of his action in the brief as ``for false arrest and imprisonment' be correct, the complaint cannot stand *Page 231 a moment, for it appears that the prosecution and conviction of the plaintiff were upon legal process; but ``an action for false imprisonment is for the defendant's having done that which, upon the stating of it, is manifestly illegal, while a malicious prosecution is for a prosecution which, upon the stating of it, is manifestly legal.' Lord Mansfield in Johnstone v. Sutton, 1 T.R. 544, 99 Eng. Reprint, 1243, 1 Eng. Rul. Cas. 766. Under our system of procedure a plaintiff's right of recovery depends, not upon the name he gives his action, or the classification to which he subjects it, but upon whether, on the facts exhibited, he is entitled to any legal redress."
Jaggard on Torts, page 424, states the law as follows: "A sufficient judicial warrant takes away from an imprisonment the essential element of illegality, and completely justifies an arrest. If the warrant be wrongfully obtained, altho upon sufficient legal proceedings, the civil action would be malicious prosecution. Marks v. Townsend,
The defendant, Kelch, proceeded under the statute, made the necessary and sufficient complaint, and the defendant was arrested on a sufficient warrant, and it follows that there was no false imprisonment. The remaining question is whether the plaintiff's complaint is sufficient as a case of malicious prosecution.
It is the contention of the plaintiff that the defendant, in making the complaint upon which the warrant was issued, acted in a ministerial *Page 232 capacity and that he is responsible the same as any person who was not an officer.
The general duties of the state's attorney are prescribed in § 3376 Comp. Laws 1913, Subdivision 2 of said section provides: "That he (the state's attorney) must institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses, when he has information that such offenses have been committed."
This section charges the state's attorney with the duty of instituting criminal proceedings for the arrest of any person charged with or reasonably suspected of committing a publicoffense. He has no choice in the matter, the law makes it his duty, and states specifically that he must, and if he fails in his duty he may be removed from office.
Section 10,535 provides, that when the magistrate before whom the complaint is made is a justice of the peace, before issuing the warrant, the complaint, if made by any person other than thestate's attorney of the county, and other evidence taken by such magistrate relating to the offense charged, must be submitted to such state's attorney, and he must examine into the charge, and enter either his approval or disapproval of the issuance of a warrant upon such complaint. If he disapproves no warrant shall be issued, but if he approves the warrant must issue. This section clothes the state's attorney with the judicial authority to decide when the evidence is sufficient and when a person is reasonably suspected of the commission of a public offense. It also contemplates the making of a criminal complaint by the state's attorney and makes a clear distinction between such a complaint and a complaint made by any other person in this to wit, if the complaint is made by any person other than thestate's attorney of the county, it must be submitted to such state's attorney and warrant cannot issue without his approval, but if the complaint is made by the state's attorney who is charged with the duty of instituting criminal proceedings for the arrest of persons charged with, or reasonably suspected of the commission of a public offence, the warrant must issue, for the law has given to the state's attorney, the power to say when a warrant shall issue and when it shall not, and when he decides that the evidence is sufficient it is his duty to institute proceedings as provided in § 3376, Comp. Laws 1913, and make the complaint contemplated in § 10,535. *Page 233
Under § 685, Comp. Laws 1913, the state's attorney is subject to removal by the governor for misconduct, or malfeasance in office, and subject to removal in a judicial proceeding for misconduct or malfeasance in office under § 10,481.
Under § 9830, he is guilty of a misdemeanor if he willfully fails or refuses to perform the duties of his office according to law, and he is guilty of a misdemeanor when he acts contrary to official duty under § 10,891.
The state's attorney is the legal adviser of the county commissioners. He must when required and without fee give his opinion in writing to the county, district, township, and school district officers on matters relating to the duties of their respective offices. He must advise irrigation engineers, and drain commissioners. He is the legal adviser of the grand jury, when there is a grand jury, and of every county officer in the county.
Under chapter 71, Session Laws 1890, prosecutions are by information filed by the state's attorney instead of by indictments filed by the grand jury. When a grand jury is called under § 10,635 "the grand jury has the power, and it is their duty to inquire into all public offenses committed or triable in the county or subdivision, and to present them to the court, either by presentment or indictment, or accusation in writing." § 10,656. When a grand jury is not called the same power is given to the state's attorney under § 10,629 which reads as follows:
"The state's attorney of the county or judicial subdivision in which any person charged with the commission of a crime or public offense has been held to answer, or other person appointed by the court as provided by law to prosecute, must make full examination and inquiry into the facts and circumstances touching any crime or public offense committed by the accused and triable in said county or judicial subdivision, and must file an information setting forth the crime committed according to the facts ascertained on such examination and inquiry and from the written testimony taken before the magistrate, whether it is the offense charged in the complaint upon which the examination was had or some other offense."
In the absence of a grand jury the state's attorney is given the same authority and charged with the same responsibility, except that the *Page 234
language in § 10,629 is more mandatory than § 10,656. The law is well settled that the state's attorney is a quasi judicial officer. The plaintiff admits that he is a quasi judicial officer but claims that he was not acting in a judicial capacity in making the complaint in the criminal action against the plaintiff, and that is the only question involved in this case. It is, of course, well settled that judicial officers are not liable in a civil action for any decision within their jurisdiction. Landseidel v. Culeman,
In the case at bar, there is no question about jurisdiction. The court had jurisdiction as a committing magistrate over the offense charged, and over the person of the defendant charged with the commission of the offense in the county of Morton. It was the duty of the state's attorney to prosecute all criminal offenses committed in said county, he had jurisdiction to hear and to decide that the facts before him were sufficient to institute a criminal prosecution thereon, and authority to have process issued to make his decision effective.
The case of Schneider v. Shepard,
A case in the same class, is the case of Shaw v. Moon,
The defendant Culeman was the justice of the peace who, issued the warrant. The complaint was not approved by the state's attorney as required by § 19,135, but it appeared that the state's attorney had told the justice of the peace some time previously that he might issue warrants in minor cases where he thought a man should be arrested; that it would be all right with him and he would O.K. it. This court said:
"It is elementary that judicial officers are not liable for the erroneous exercise of the judicial powers vested in them. This immunity from liability is based upon considerations of public policy. To hold judicial officers personally liable for errors of judgment concerning either questions of law or fact would be subversive of both independence and efficiency in the administration of justice. This rule of public policy applies as well to inferior courts of limited jurisdiction as to superior courts of general jurisdiction. . . . If a judge acts within his jurisdiction, it has been held that he is not even liable to a party civilly though he act both maliciously and corruptly. Broom v. Douglass, 44 L.R.A.(N.S.) 164, and note (
"Obviously if Culeman was acting judicially and within his jurisdiction, his belief as to whether or not Landseidel had committed some crime was immaterial, as it might have been his duty to issue the warrant *Page 236
nevertheless, or at least he might well have conceived it to be his duty. And if he regarded it as his duty to issue a warrant, neither the fact that he acted maliciously nor the absence of probable cause for the arrest, would render him personally liable. Broom v. Douglass, supra; 11 R.C.L. 815." [
The recent case of Watts v. Gerking,
The following cases we think are especially in point as they relate to officers who are quasi judicial officers, viz.: "Fath v. Koeppel,
In the case of Re Bentine,
In the recent casoe of Halladay v. State Bank,
In the case of Laughlin v. Clawson,
In the case of Downer v. Lent,
The case of Turpen v. Booth,
In the case Yaselli v. Goff (C.C.A.2d) ___ A.L.R. ___, 12 F.2d 396, the complaint alleged, that the defendant willfully and maliciously conspired to get himself appointed as a prosecutor, in order that he might willfully and maliciously indict the plaintiff; that he had others, falsely and maliciously and without reasonable and probable cause did cause to be introduced and used before the grand jury a great mass of false, misleading and hearsay testimony, and thus unjustly, unfairly, and improperly influenced and poisoned the minds of the grand jurors upon which the defendant was indicted, tried, and at the close of the state's case, the court directed a verdict for the defendant who then brought a civil action for damages. In this action the court reviews the decisions at length. First those relating to judicial officers quoting from *Page 239 Bradley v. Fisher, supra, as follows: "In other words, it (the plea) sets up that the order for the entry of which the suit is brought, was a judicial act, done by the defendant as the presiding justice of a court of general criminal jurisdiction. If such were the character of the act, and the jurisdiction of the court, the defendant cannot be subjected to responsibility for it in a civil action, however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to every one who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English Judge, it would establish the weakness of judicial authority in a degrading responsibility."
From 2 Cooley on Torts, 3d ed. p. 795: "In effect, the state says to the officer that these duties are confided to his judgment; that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the state, and the peace and happiness of society; that if he shall fail in the faithful discharge of them he shall be called to account as a criminal, but that in order that he may not be annoyed, disturbed, and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question his official action in a suit for damages. This is what the state, speaking by the mouth of the common law, says to the judicial officer. The rule thus laid down applies to large classes of officers, embracing some the powers attached to which are very extensive, and others whose authority is exceedingly limited. It applies to the highest judge in the state or nation, but it also applies to the lowest officer who sits as a court and tries petty cases, and it applies not in respect to their judgments merely, but to all process awarded bythem for carrying their judgments into effect." (The Italics are ours.) This statement is followed in Yaselli v. Goff, supra, with the following statement:
"And the immunity which is extended to the judges is in like manner *Page 240 extended to the attorneys in the presentation of the client's case to the court or the jury."
From Munster v. Lamb, L.R. 11 Q.B.D. 588, 7 Eng. Rul. Cas. 714 — C.A., wherein the court said: "to my mind it is illogical to argue that the protection of privilege ought not to exist for a counsel, who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct.
"Not only are the judges exempt, but grand jurors are in like manner exempt from actions for malicious prosecution. In 17 Am. Eng. Enc. Law p. 1302, the law is stated as follows: ``However recklessly and maliciously a grand jury may have acted in returning an indictment against another without evidence or probable cause, the jurors are not liable to an injured person in an action for malicious prosecution.' . . .
"A public office is an agency for the state, the duties of which involve in their performance the exercise of some portion of the sovereign power, either great or small. The rule of responsibility of a public officer, as held by the courts, is said to be that, if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an erroneous performance, is regarded as an injury to the public, and not as one to the individual. It is to be redressed in some form of public prosecution, and not by a private person who conceives himself specially injured. 2 Cooley, Torts 3d ed. p. 756. In Thibodaux v. Thibodaux, 46 La. Ann. 1528, 16 So. 450, it is said: ``Officials in the performance of a duty imposed by law cannot be held in damages for acts done strictly within the lines of official duty.'" [___ A.L.R. ___, 12 F.2d 403.]
From Watts v. Gerking,
Continuing in Yaselli v. Goff, supra, the court said: "The question whether the immunity which attaches, as we hold it does, to a prosecuting officer, applies to shield one who conspires willfully and maliciously to get himself appointed as prosecutor, in order that he may willfully and maliciously indict and prosecute the person he seeks to punish. In our opinion, the reasons which compel us to hold that one who obtains an appointment as a prosecuting officer of the government is immune from civil liability for acts done by him in the discharge of his official duties apply in like manner to protect him against such a charge as that he was governed by improper motives in securing the appointment. The important fact is that he was appointed to the office, and, having been appointed, the public interests require that he shall be free and fearless to act in the discharge of his official duties. If he cannot be charged with acting willfully and maliciously after he gets appointed to the office, no more can he be charged with having conspired to get into the office in order to act willfully and maliciously after he gets his appointment. The one charge is as much to be feared as the other, and is equally derogatory to his public character and usefulness in the office. We are unable to distinguish between the two cases in principle."
In the case of Griffith v. Slinkard,
"The question remains, is the prosecuting attorney any more liable for his alleged participation in procuring the indictment maliciously and without probable cause? In State v. Henning,
"It was held in Parker v. Huntington, 2 Gray, 124, that an action against a district attorney and another person for maliciously contriving to have the plaintiff indicted for perjury, they knowing that he had not committed it, and by their false testimony obtaining a verdict of guilty against the plaintiff, which was afterwards set aside, cannot be maintained.
"There is therefore no more liability against the prosecuting attorney than there is against the grand jury for the return of an indictment maliciously and without probable cause."
In the case of Smith v. Parman,
"We think the reason for granting immunity to judges and grand jurors applies with practically equal force to a public prosecutor in his relations to actions to punish infractions of the law. There is no great danger that abuse of power will be fostered by this exemption from civil liability, for the prosecutor is at all times under the wholesome restraint imposed by the risk of being called to account criminally for official misconduct."
In the case of Schneider v. Shepard,
In the instant case, the state's attorney did not act without statutory law, but used all the machinery which the law provides.
In the case of Watts v. Gerking, supra, the complaint alleged, that the prosecuting attorney instigated others to swear falsely against the plaintiff, in an affidavit for a search warrant knowing at the time that the plaintiff was innocent.
In Yasseli v. Goff (C.C.A.2d) ___ A.L.R. ___, 12 F.2d 396, the complaint alleged, that the defendant conspired to get himself appointed as prosecutor in order that he might have the plaintiff indicted.
In Griffith v. Slinkard, supra, the complaint alleges, that the prosecuting attorney maliciously wrote the plaintiff's name into an indictment, after the grand jury had voted not to indict, and thus maliciously procured an indictment against the plaintiff. In each of these cases it is alleged, that the prosecuting officer instigated others to institute criminal proceedings, and the law makes no distinction between what one does personally and what he procures others to do. If a prosecuting attorney is liable for swearing to a complaint himself he would also be liable if he procured another to swear to the complaint.
In the instant case, if the state's attorney after deciding that the *Page 244 evidence before him was sufficient had gone before a grand jury, and procured an indictment, he would not be liable, for the reason, that he is a public prosecutor, and it would be his duty to present the evidence to the grand jury. It is none the less his duty to act on the evidence which he deems sufficient, in the absence of a grand jury, for the law substituting his office for the grand jury never intended that his immunity in the commencement of a criminal action should be less than that of a grand juror.
We cannot say, as the plaintiff contends, that the state's attorney, a public officer, sworn to enforce the criminal law, and charged with the duty of determining when to commence a prosecution and when to discontinue it, acted as a private citizen in the prosecution of the case. The letters were mailed to him because he was state's attorney, and it is presumed that in the exercise of that discretion which the law reposes in him he acted as state's attorney in the institution of the prosecution, net only in passing upon the question of the sufficiency of the evidence before him, but also, in making a complaint before a justice of the peace upon which warrant might issue and make effective his decision that the evidence was sufficient. Why does the statute give him, and him only, the authority to pass upon the evidence and say when a warrant shall issue? The authority is given to him, so that he may, in fact it is made his duty to commence a prosecution when in his judgment the evidence is sufficient, and it would be ridiculous to hold that after deciding that evidence was sufficient, that he could only make complaint on that evidence at his peril. As Judge Cooley said and as herein before quoted: "It [the principle]applies not in respect to their judgments merely, but to allprocess awarded by them for carrying their judgments intoeffect."
The state's attorney acts for the state. His act in passing upon the sufficiency of evidence as the basis of a criminal prosecution is the act of the state, and if he makes a mistake (as he sometimes will) it is the mistake of the state. Judges of all courts, high and low, county commissioners, justices of the peace and grand jurors are not liable in a civil action for their judicial mistakes, and it would be strange indeed if the state's attorneys of this state, who are charged with theresponsibilities of grand jurors in the prosecution of crime, intheir respective counties, are not exempt from civil liabilityfor judicial mistakes. *Page 245
The first letter received by the state's attorney, charged the plaintiff with a continuing crime, and further stated, "that if you don't see to it, and get her out of town there is a Women's Club in town that will either lynch or tar and feather her." It was not only a statement of the commission of a continuing crime, but a threat of disturbance of the public peace, and of violence against the plaintiff.
The second letter purporting to be signed by the plaintiff amounted to an admission of guilt, and was further a plea in extenuation, or excuse, an appeal to the state's attorney for protection, or at least for noninterference.
If the letters were true, action should be taken immediately for threats of violence were made, the public peace was threatened.
The doctrine of exemption of judicial and quasi judicial officers, is founded upon a sound public policy, not for the protection of the officers, but for the protection of the public, and to insure the active and independent action of the officers charged with the prosecution of crime, for the protection of life, and property. It applies to the office of the state's attorney in this state.
Since the enactment of chapter 71, Sess. Laws 1890, p. 246, prosecutions by indictment are almost obsolete. The burden of investigation, formerly made the duty of grand jurors, has by legislative enactment been made the duty of the state's attorney and when he passes judgment on the sufficiency of the evidence before a justice of the peace before approving the issuance of a warrant, or upon the sufficiency of the evidence within his own knowledge the passing of such judgment is a judicial act, and he is not liable therefor in a civil action if he makes a mistake, or for having process issued to make effective his decision.
The fact that the law gives the state's attorney power to subpoena witnesses in the investigation of infractions of certain laws, does not make it any less his duty to use all the machinery the law places in his hands for the enforcement of other laws where he has not such power. The reasoning that the state's attorney after passing upon the sufficiency of the evidence before him may not make complaint himself without liability, but may have some other person make the complaint on the same evidence without liability simply leads to an absurdity.
The judgment of the lower court is affirmed. *Page 246
NUESSLE and BIRDZELL, JJ., concur.
Pratt v. Brown, Receiver , 80 Tex. 608 ( 1891 )
Hobbs v. Ray , 18 R.I. 84 ( 1892 )
Yaselli v. Goff , 12 F.2d 396 ( 1926 )
Marks v. . Townsend , 1885 N.Y. LEXIS 566 ( 1885 )
State v. Schimmel , 1987 N.D. LEXIS 345 ( 1987 )
Loran v. Iszler , 1985 N.D. LEXIS 389 ( 1985 )
Gottschalck v. Shepperd , 65 N.D. 544 ( 1935 )
State Ex Rel. Holloway v. First American Bank & Trust Co. , 248 N.W.2d 859 ( 1977 )
Anderson v. Manley , 181 Wash. 327 ( 1935 )
Richmond v. Haney , 1992 N.D. LEXIS 33 ( 1992 )
Mills v. Smith , 1960 Okla. LEXIS 462 ( 1960 )
Gill v. Ripley , 352 Md. 754 ( 1999 )
Hennebry v. Hoy , 1983 N.D. LEXIS 437 ( 1983 )
KFGO Radio, Inc. v. Rothe , 1980 N.D. LEXIS 296 ( 1980 )
Wilson v. Hirst , 67 Ariz. 197 ( 1948 )
State Ex Rel. Ilvedson v. District Court , 70 N.D. 17 ( 1940 )