WILLIAM HUFFMIER,
        Plaintiff,

        v.                Case No. 01C 559

CARLA J. STOVALL,
KYLE J. SMITH,
RICK SABEL, and
LARRY THOMAS,
        Defendants.

Defendants have filed a motion for reconsideration and/or motion to amend judgment relating to this court's memorandum decision of November 16, 2001. Plaintiff has filed a response to defendants' motion and a cross-motion to reconsider and in the alternative to modify. Defendants filed a reply to plaintiff's response and also a response to plaintiff's cross-motion. Plaintiff then filed a reply to which defendants filed a motion to strike plaintiff's reply.

Whether Defendant Smith is Entitled to the Protection of Absolute Immunity Against the Federal Claims

Defendant Smith argues that he should be entitled to absolute immunity because unlike the prosecutor in Kalina (Kalina v. Fletcher, 522 U.S. 118 (1997)), he did not personally swear to the truth or falsity of the underlying evidence. Instead defendant Smith verified or swore that the facts were relayed to him by a law enforcement officer.

As parties might recall in this court's memorandum decision, the court did not consider the affidavit that was filed by defendants as a supplement to the motion to dismiss since it is inappropriate to consider matters outside the pleadings unless the court converts the motion to a motion for summary judgment. This court declined to consider the motion to dismiss as a motion for summary judgment.

Shortly after the defendants filed their motion to reconsider, the Kansas Supreme Court issued its opinion in McCormick v. Board of County Commissioners of Shawnee County, __Kan. App. 2d__, 35 P. 3d 815, 2001 Kan. Lexis 932 (2001) which affirmed the Kansas Court of Appeals' finding that "...while a prosecutor is fully protected by absolute immunity when performing traditional functions of an advocate, Long [the Assistant District Attorney] would only be entitled to qualified immunity as to the affidavit she swore out." McCormick, 2001 Kan. Lexis 932 at 20.

The affidavit began with the following statement: "'I, Cynthia J. Long, Assistant District Attorney, being of lawful age and duly sworn upon my oath, depose and state as follows: that I have received the following information from official TPD 20981-99; 197 26-99; 20409-99; 25184-99 and from officers whom I know from past investigations to be truthful and reliable.'" McCormick, 2001 Kan Lexis 932 at 10. Long also was not personally swearing to the truth or falsity of the underlying evidence as she had received the underlying facts from police reports and officers. However, the fact that Long was not personally swearing to the truth of the underlying evidence is apparently a distinction without a difference since the Kansas Supreme Court affirmed the Kansas Court of Appeals' holding that Long was not entitled to absolute immunity as to the affidavit that she swore out.

Therefore, this court denies defendant Smith's motion to reconsider. In addition, this court also denies defendant Smith's alternative motion to amend the judgment pursuant to Supreme Court Rule 4.01 to include the findings required by K.S.A. 60-2101(b). This court does not find that the issue of whether defendant Smith is entitled to absolute immunity as to the affidavit he swore out is a controlling question of law as to which there is substantial grounds for difference of opinion in light of the Kansas Supreme Court's decision in McCormick.

Whether Defendant Stovall is Entitled to the Protection of Absolute Immunity Against the Federal Claims

The Kansas Supreme Court in McCormick reviewed several United State Supreme Court cases which suggest that the question of whether absolute immunity or qualified immunity shield a prosecutor from liability under § 1983 depends upon the function undertaken by the prosecutor. McCormick, 2001 Kan. Lexis 932 at 18.

In the memorandum decision in this case, this court cited the same cases and discussed the developing federal case law where the functional approach had been applied. It is clear after reviewing the U.S. Supreme Court cases that the function (or role) that the prosecutor undertakes must be examined to determine whether absolute or qualified immunity applies.

Despite the federal case law regarding § 1983 claims, defendants argue that Kansas common law should apply and that prosecutors are entitled to absolute immunity for investigative actions regardless of the stage of the proceeding.

However, a close review of McCormick renders no support for defendants' argument. Nowhere in the discussion of federal claims under § 1983 does McCormick cite to Kansas case law nor is there even a hint that the United State Supreme Court decisions are inapplicable if Kansas common law provides that a prosecutor is entitled to absolute immunity no matter what function she undertakes.

In order to determine whether absolute or qualified immunity applies, McCormick clearly relies on the functional approach found in a number of United States Supreme Court cases. McCormick, 2001 Kan. Lexis 932 at 18. See also Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993); Burns v. Reed, 500 U.S. 478, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991).

As this court stated in its memorandum decision at page 10:

In Buckley v. Fitzsimmons, the United States Supreme Court distinguished between the function relating to an advocate's preparation for the initiation of a prosecution or for judicial proceedings and a prosecutor's administrative duties and investigative functions which may occur before an advocate has probable cause to have a person arrested or has made a decision to seek an indictment. Buckley v. Fitzsimmons, 509 U.S. at 273.

"A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as "preparation" for a possible trial; every prosecutor might then shield himself from liability for any constitutional wrong against innocent citizens by ensuring that they go to trial. When the functions of prosecutors and detectives are the same, as they were here, the immunity that protects them is also the same."

Buckley, 509 U.S. at 276.

The allegation in plaintiff's petition was that Attorney General Stovall "precipitated a massive investigation of allies with or friends of Meneley." This alleged "massive investigation" of friends and allies of Meneley would go beyond an advocate's preparation for the initiation of a prosecution. Therefore, this court finds that the alleged acts of Attorney General Stovall are not entitled to absolute immunity.

Defendant Stovall also argues that the plaintiff failed to specifically plead actions undertaken by Stovall which constitute an investigation. This court is well aware that a conclusory allegation need not be accepted by the court to defeat a motion to dismiss. Sampson v. Rumsey, 1 Kan. App. 2d 191, 193-94, 563 P.2d 506 (1977). However, plaintiff has stated specific acts. Initiating or precipitating an investigation are acts and not just conclusory allegations. The question for determination is whether in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiff's favor, the petition states any valid claim for relief. Ripley v. Tolbert, 260 Kan. 491, 921 P.2d 1210 (1996). This court finds that plaintiff's alleged facts defeat a motion to dismiss and therefore, this court denies defendant Stovall's motion for reconsideration.

Furthermore, this court also denies defendant Stovall's alternative motion to amend the judgment and add the findings pursuant to K.S.A. 60-2101(b). In light of McCormick, this court does not find that there is a controlling question of law as to which there is substantial grounds for difference of opinion.

Whether Defendants Sabel and Thomas are Entitled to Absolute Immunity Against Plaintiff's Federal Claims

For the reasons already set out above in the previous two sections, this court denies defendant Sabel and Thomas's motion for reconsideration and their alternative motion for findings pursuant to K.S.A. 60-2101(b). In summary, the holdings from U.S. Supreme Court cases are controlling as to the analysis of federal claims under 42 U.S.C. § 1983. In that context it would be ludicrous to provide absolute immunity to K.B.I. investigators if prosecutors are not entitled to absolute immunity for all of their investigative acts.

Defendants filed a motion to strike plaintiff's reply because "it addresses arguments made by defendants in their response (sic)." Defendants contend that plaintiff's reply is actually a sur reply and violates Shawnee County District Court Rule 3.202(b).

This court concurs that paragraphs 1, 2, and 3 do not address defendants' response to plaintiff's cross-motion and instead address arguments made by defendants in their reply. Therefore, the court does strike paragraphs 1, 2, and 3 of plaintiff's reply as those paragraphs are in fact a sur reply.

However, paragraph 4 does address arguments made by defendants in their response to plaintiff's cross-motion and the court will consider paragraph 4.

Therefore, this court grants in part and denies in part defendants' motion to strike plaintiff's reply.

Plaintiff filed a cross-motion for reconsideration in conjunction with his response to defendants' motion for reconsideration.

Defendants argue that plaintiff's cross-motion to reconsider was untimely filed pursuant to K.S.A. 60-259(f). They also argue that plaintiff's alternative motion to amend the judgment to include the findings required by K.S.A. 60-2102(b) is untimely pursuant to Supreme Court Rule 4.01.

Plaintiff argues that the court still can consider plaintiff's cross-motion to reconsider because pursuant to K.S.A. 60-260(b)(6) or under its general authority, the court has authority until final judgment to modify its ruling. Elliott v. Farm Bureau Insurance Co., Inc., 26 Kan. App. 2d 790, 995 P.2d 885 (1999), rev. denied (2000).

This court agrees with plaintiff that until final judgment the court has authority to reconsider earlier rulings.

Plaintiff argues in his motion to reconsider that this court should reinstate the state tort claims in light of McCormick. Plaintiff cites the following language from McCormick, "[t]he Court of Appeals was correct [in McCormick] in finding that while a prosecutor is fully protected by absolute immunity when performing traditional functions of an advocate, [the prosecutor] would only be entitled to qualified immunity as to the affidavit she swore out." McCormick, 2001 Kan. Lexis 932 at 20.

Plaintiff takes this quote out of context. The quote was excerpted from the Kansas Supreme Court's discussion of § 1983 claims. In addition, the Court of Appeals' finding regarding the inapplicability of absolute immunity regarding the prosecutor's act of signing the affidavit was in reference to § 1983 claims. The analysis regarding state tort claims in both the Court of Appeals decision and the Supreme Court's decision regarding McCormick dealt with immunity under the Kansas Tort Claims Act. McCormick, 2001 Kan. Lexis 932 at 33-43.

The Kansas Supreme Court found that prosecutor Long was entitled to dismissal of the state tort claims because she was entitled to discretionary immunity pursuant to K.S.A. 75-6104(e). The Supreme Court found that McCormick had not alleged that Long's actions were outside the scope of her employment and therefore discretionary immunity applied.

This court likewise found in its memorandum decision at p. 6 that both Smith and Stovall were immune from liability as to the state tort claims under the discretionary function exception of the Kansas Tort Claims Act, K.S.A. 75-6104(e). The same rationale applies to Sabel and Thomas.

Therefore, this court denies plaintiff's cross-motion to reconsider.

Plaintiff's alternative request for findings pursuant to K.S.A. 60-2102(b) is not timely. Supreme Court Rule 4.01(a) provides that a motion to amend to include findings required by K.S.A. 60-2102(b) must be served and filed within ten (10) days of the filing of the order and plaintiff's cross-motion was not filed until December 10, 2001 some 24 days after the filing of this court's memorandum decision. Apparently, plaintiff was requesting that the entire order be included for certification if the court granted defendants' alternative motion. However, this court denied defendants' alternative motion and also is hereby denying plaintiff's alternative motion.

The above constitutes the court's ruling denying Defendants' Motion to Reconsider and Defendants' Alternative Motion to Modify and also denying Plaintiff's Cross-Motion to Reconsider and Alternative Motion to Modify. The court granted in part and denied in part Defendants' Motion to Strike Plaintiff's Reply. The above constitutes the court's rulings on all of the above referenced motions and no further journal entry is required.

IT IS SO ORDERED.

Dated this day of February, 2002.

 
_____________________
Nancy Parrish
District Judge, Third Judicial District
Division Fourteen

I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 11th day of February , 2002, to the following:

 
Margie J. Phelps
Jonathan B. Phelps
1414 S. Topeka Blvd.
P.O. Box 1886
Topeka, Kansas 66601

 
Mark L. Bennett, Jr.
5605 SW Barrington Ct. S. #201
Topeka, Kansas 66614-2489

 
__________________
Norma J. Dunnaway
Administrative Assistant