FSM SUPREME COURT
TRIAL DIVISION
Cite as Jano v. King,
5 FSM Intrm. 388 (Pon. 1992)

[5 FSM Intrm. 388]

MARTIN JANO et al.,
Plaintiffs,

v.

EDWARD C. KING et al.,
Defendants,

THE NATIONAL JUDICIARY OF THE FSM,
by and through PATRICK MACKENZIE,
Director of Court Administration,
Intervenor/Defendant.

FSM CIV. 1991-061

OPINION
 
Before Arthur Ngiraklsong
Designated Justice
Argued:  May 18, 1992
Decided:  December 3, 1992

APPEARANCES:
For the Plaintiffs:                    Martin Jano, pro se

For the Defendant:                 R. Barrie Michelsen, Esq.
(King)                                       P.O. Box 1450
                                                 Kolonia, Pohnpei  FM 96941

For the Defendants:               Daniel Hall, Esq.
                                                 Office of the Attorney General
                                                 P.O. Box PS-105
                                                 Palikir, Pohnpei FM 96941
 
[5 FSM Intrm. 389]
 
For Defendant/Intervenor:     Alan Burdick, Esq.
                                                 222 Merchant St., 2nd Floor
                                                 Honolulu, Hawaii 96813

*    *    *    *

HEADNOTES
Civil Procedure - Dismissal
     A motion to dismiss for failure to state a claim for which relief can be granted brought under FSM Civ. R. 12(b)(6) will be granted only if it appears to a certainty that no relief can be granted under any state of facts which could be proven in support of the claim.  In making its determination the court is to assume the allegations in the complaint to be true and give the plaintiff the benefit of all reasonable inferences.  Jano v. King, 5 FSM Intrm. 388, 390 (Pon. 1992).

Courts - Judges; Torts - Immunity
     A judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function.  Jano v. King, 5 FSM Intrm. 388, 391 (Pon. 1992).

Courts - Judges; Torts - Immunity
     A judge loses the cloak of judicial immunity in only two instances.  A judge is not immune for actions not taken in the judge's judicial capacity, and a judge is not immune for actions, though judicial in nature, taken in absence of all jurisdiction.   Jano v. King, 5 FSM Intrm. 388, 391 (Pon. 1992).

Jurisdiction; Search and Seizure
     Issuance of a search warrant is indisputedly within the FSM Supreme Court's jurisdiction.  Jano v. King, 5 FSM Intrm. 388, 392 (Pon. 1992).

Courts - Judges; Torts - Immunity
     An act performed by a judge does not have to be an adjudicatory act in order for it to be a judicial act.  Judges and justices of the courts of the Federated States of Micronesia are protected by the cloak of judicial absolute immunity for judicial functions performed unless they are in complete absence of jurisdiction.  Jano v. King, 5 FSM Intrm. 388, 392-93 (Pon. 1992).

Public Officers and Employees; Torts - Immunity
     Prosecutors enjoy absolute immunity from prosecution for their actions which are connected to their role in judicial proceedings, which include participation in hearings related to obtaining search warrants.  Prosecutors do not, however, enjoy absolute immunity from prosecution for their role as an administrative or investigative officers, which includes participation in and giving police advice regarding the execution of a search warrant.  Jano v. King, 5 FSM Intrm. 388, 396 (Pon. 1992).

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COURT'S OPINION
ARTHUR NGIRAKLSONG, Designated Justice:

[5 FSM Intrm. 390]

     On October 4, 1991, plaintiffs filed their complaint alleging seven causes of action arising out of the seeking of a search warrant by Finn and Juergens, the issuance of a search warrant by Judge King, and the subsequent execution of the warrant.

     On October 21, 1992, Judge King filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to FSM Civ. R. 12(b)(6).  Judge King alleged that plaintiff's entire action against him is precluded by the doctrine of absolute judicial immunity and the complaint must therefore be dismissed.

     On the same day, defendants Juergens and Finn filed an identical motion alleging that the complaint against them is precluded by the doctrine of prosecutorial immunity and therefore the complaint must be dismissed against them.

     Hearing on the motions was held on May 18, 1992, with Martin Jano appearing for the plaintiffs, Barrie Michelsen appearing for Judge King, and Daniel Hall, Esq. appearing for defendants Juergens and Finn.  Alan Burdick, Esq. counsel for Intervenor was also present.

ANALYSIS
     A motion to dismiss for failure to state a claim for which relief can be granted brought under Rule 12(b)(6) will be granted "only if it appears to a certainty that no relief can be granted under any state of facts which could be proven in support of the claim."  Mailo v. Twum-Barimah, 2 FSM Intrm. 265, 267 (Pon. 1986).  In making its determination the court is to assume the allegations in the complaint to be true and give the plaintiff the benefit of all reasonable inferences.

     The essence of the motions before the court is that the doctrines of judicial and prosecutorial immunity preclude plaintiffs from stating a cause of action against defendants for the conduct alleged.  It is therefore necessary to examine these doctrines to determine whether they apply in FSM, what their scope is, and finally whether when assuming the allegations in the complaint to be true, any or all of the Counts in plaintiffs' complaint state a cause of action for which relief can be granted.

A.  JUDICIAL IMMUNITY: MOTION OF JUDGE KING
     Application of the doctrine of judicial immunity is a matter of first impression in the Federated States of Micronesia.  Defendant King relies upon the doctrine of judicial immunity established by the courts of England, and then adopted by the courts of the United States, arguing that the rationale for the doctrine in those jurisdictions applies equally to the Federated States of Micronesia.  Plaintiffs argue that because the FSM Constitution does not specifically grant judges immunity, the doctrine does not and should not apply.

[5 FSM Intrm. 391]

     Plaintiffs' argument is unpersuasive because it does not take into account certain similarities in the system of jurisprudence adopted in the Federated States of Micronesia and that of the United States.  In forming its judicial system, the Federated States of Micronesia was influenced, in part, by the system adopted by the United States, which had based its judicial system largely on the English common law system.  This court may therefore look to United States law for guidance on the history, scope and application of the doctrine of judicial immunity.

     The principle that a judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function is as old as the beginning of the English common law.1  46 Am. Jur. 2d Judges 72 (1969) (citing Brictson v. Woodrough, 164 F.2d 107 (8th Cir. 1947)), cert. denied, 334 U.S. 849 (1948); Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd, 275 U.S. 503, 28 S. Ct. 155, 72 L. Ed. 395 (1927).  See also, Forrester v. White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988); Cleavinger v. Saxner, 474 U.S. 193, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985); Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980); Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L. Ed. 646 (1872).  "Few doctrines were more solidly established at common law than the immunity of judges for damages for acts committed within their judicial jurisdiction."  Pierson v.  Ray, 386 U.S. 547, 553-54, 87 S. Ct. 1213, 1217, 18 L. Ed. 2d 288, 294 (1967).  As far back as 1872, the Supreme Court of the United States recognized that judicial immunity was "the settled doctrine of the English Courts for many centuries, and has never been denied, that we are aware of, in the courts of this country."  Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L. Ed. 646, 649 (1872) (emphasis added).

     "A judicial officer cannot be called to account in a civil action for his determination and acts in his judicial capacity and within his jurisdiction, however erroneous.  For a mere error of judgment in the execution of his office, no action can be maintained against a judge of any court. . . ."  46 Am. Jur. 2d Judges 72, at 141-42 (1969). This doctrine "rests upon considerations of public policy, its purpose being to preserve the integrity and independence of the judiciary, and to insure that judges will act of their own free, unbiased convictions, uninfluenced by any apprehensions of consequences."  Id. at 142.

     A judge loses the cloak of judicial immunity in only two events: "First, a judge is not immune from non-judicial actions, i.e. actions not taken in the judge's judicial capacity.  Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdictions."  Mireless v. Waco, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9, 14 (1991) (citing Forrester v. White, 484 U.S. at 227-29 Stump v. Sparkman, 435 U.S. at 360, 98 S. Ct. at 1106, 55 L. Ed. 2d at 341; Bradley v. Fisher, 80 U.S. (13 Wall.) at 351, 20 L. Ed. at 651).

[5 FSM Intrm. 392]

     The rationale for adopting the doctrine of absolute judicial immunity in England and the United States is equally applicable in the Federated States of Micronesia. The court therefore adopts the rationale of the above authorities.  An analysis of the facts at bar pursuant to these authorities leads to the inescapable conclusion that the actions alleged in the complaint which were taken by Judge King were within this court's jurisdiction and taken in his judicial capacity.

     a)  Jurisdiction
     Article XI, section 1 of the FSM Constitution vests judicial power in the Supreme Court and inferior courts established by statute.  Section 6(b) of article XI vests concurrent original jurisdiction in cases arising under the Constitution in the national courts, including the trial division of the Supreme Court.  Title 12, Section 303 of the F.S.M.C. provides that any court and any judge is authorized to issue a search warrant.  Judge King's issuance of the search warrant herein was indisputably within the court's jurisdiction pursuant to article XI of the Constitution and 12 F.S.M.C. 303.

     Plaintiff argues that Delegates Proposal No. 21-90 removed jurisdiction over major crimes from the national government and that the issuance of a search warrant by Judge King in a case that allegedly charges a major crime was therefore without jurisdiction.  Plaintiff, however, misquotes the language of the proposal that was allegedly adopted on July 2, 1991 and its effect on the court's jurisdiction.  The proposal adopted merely amends article IX, section 2(p) to grant to Congress the power to define national crimes.  It does nothing to curtail the jurisdiction of the Supreme Court.  Moreover, the proposal does not affect the power granted to any court and any judge to issue a search warrant pursuant to 12 F.S.M.C. 303.

     b)  Judicial Act
     Whether an act by a judge is a judicial act relates to the nature of the act itself, i.e., whether it is a function normally performed by a judge.  Stump, 435 U.S. at 362, 98 S. Ct. at 1107, 55 L. Ed. 2d at 342.  "[T]he issuance of a search warrant is unquestionably a judicial act."  Burns v. Reed, 111 S. Ct. 1934, 1942, 114 L. Ed. 2d 547, 562 (1991); Stump, 435 U.S. at 363 n. 12, 98 S. Ct. at 1108 n. 12, 55 L. Ed. 2d at 343 n.12.

     Plaintiff unpersuasively argues that Justice King's actions in issuing the search warrant are administrative acts and not judicial acts, citing Forrester v. White , 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988) for support. Forrester involved an action by a court employee against a judge for wrongful termination and is factually distinguishable from the facts at bar.  Although plaintiff makes the argument, he at the same time concedes that the issuance of a search warrant is a proper function of the court.  At page 2 of plaintiff's May 18, 1992 Supplemental Memorandum, it states:  "In the   instant case, Defendants' actions in issuing the Ex parte search warrant was a proper function of the FSM Court but it certainly can not be said that the nature of those actions involved adjudication."  Plaintiff, however, reasons

[5 FSM Intrm. 393]

that a warrant is for the purpose of finding evidence to determine if a cause of action exists and therefore the adjudicatory process has not commenced, and, that although only defendant King as a judge could issue the warrant, that fact does not make the issuance a judicial act.  This reasoning is fatally flawed as plaintiff's definition of "adjudication" unduly narrow; judges perform countless acts a part of their judicial function which are not necessarily adjudicatory.  Most importantly, however, the focus is whether the act was a judicial function and not whether it was adjudicatory.

     c)  Conclusion
     Judges and Justices of the courts of the Federated States of Micronesia are protected by the cloak of absolute judicial immunity for judicial functions performed unless they are in the complete absence of jurisdiction.  Taking all the allegations in the Complaint to be true, as the court must do when determining a Rule 12(b)(6) motion, no relief could be granted under any state of facts which could be proven to support plaintiff's allegations.  Defendant King's motion to dismiss is therefore granted, and the Complaint is dismissed in its entirety as to him.

II.  PROSECUTORIAL IMMUNITY; MOTION OF JUERGENS AND FINN
     As with judicial immunity, the existence and scope of prosecutorial immunity is a matter of first impression in the FSM.  The court may therefore seek guidance from U.S. case law on this issue, which has been addressed at length in the recent landmark cases of Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976) and Burns v. Reed, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991).

     The common law roots of prosecutorial immunity in the United States traces back to 1896 in the case of Griffith v. Slinkard, 44 N.E. 1001 (Ind. 1896).  In Griffith, the complaint charged that without probable cause, a prosecutor had the plaintiff's name added to a grand jury true bill despite the fact that the grand jury had refused to indict him.  This resulted in plaintiff's arrest and repeated court appearances before the charge was dropped.  Despite allegations that the prosecutor acted with malice, the Indiana Supreme Court dismissed the action on the ground that the prosecutor was absolutely immune.  Id. at 1002.  The holding of Griffith became the majority rule and was later affirmed by Yaselli v. Goff, 12 F.2d 396 (1926), aff'd, 275 U.S. 503, 48 S. Ct. 115, 72 L. Ed. 395 (1927), and an unbroken line of precedent since that time.See Gregorie v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 70 S. Ct. 803 (1950); Cooper v. O'Connor, 99 F.2d 135 (1938); Anderson v. Roherer, 3 F. Supp. 367 (S.D. Fla. 1933); Pierson v. Reed, 44 P.2d 592 (Cal. App. 1935); Perez v. Borchers, 567 F.2d 285 (5th Cir.) cert. denied, 439 U.S. 831 (1978) (bringing of false charge); Bruce v. Wade, 537 F.2d 850 (5th Cir. 1976) (bringing of false charge); Siano v. Justices of Massachusetts, 698 F.2d 52 (1st Cir.), cert. denied, 464 U.S. 819 (1983) (decision to initiate criminal prosecution qualifies for immunity even if undertaken maliciously, intentionally and in bad faith); Howard v. Koch, 575 F. Supp. 1256 (E.D.N.Y. 1982) (search and seizure).

[5 FSM Intrm. 394]

     In Imbler, the Court applied the common law rule of prosecutorial immunity for the first time, to civil suits brought under 42 U.S.C. 1983 for deprivation of a plaintiff's civil rights.  This common law immunity, reasoned the Imbler court:

is based upon the same consideration that underlie the common-law immunities of judgesand grand jurors acting within the scope of their duties.  These include concern thatharassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.

Imbler, 424 U.S. at 422-23, 96 S. Ct. at 991, 47 L. Ed. 2d at 139 (footnote omitted).

     In applying the common law rule of absolute prosecutorial immunity to section 1983 claims, the Imbler court noted that each of the challenged activities was an "integral part of the judicial process."  For actions that are "intimately associated with the judicial phase of the criminal process" the reasons for absolute immunity apply with full force.  Id. at 430, 96 S. Ct. at 995, 47 L. Ed. 2d at 143.  The Court, however, left standing a long line of cases which hold that a prosecutor engaged in certain investigative activities does not enjoy the absolute immunity associated with the judicial process, but only a good faith defense comparable to the policeman's. Id.

     In describing the breadth of its decision, the Court went on to state that: "We have no occasion to consider whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate."  Id. at 430-31, 96 S. Ct. at 995, 47 L. Ed. 2d at 143-44.  This issue was left open until Burns v. Reed, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991).

     In Burns, police officers suspected that petitioner had shot her two sons, and speculating that she had multiple personalities, the officers wished to place her under hypnosis and conduct an interview.  Out of concern for the propriety of such an interview, they sought the advice of the respondent, a prosecutor, who told them to proceed.  While hypnotized, petitioner admitted to the shootings so the officers sought the prosecutor's advice about whether this constituted probable cause to arrest and detain her.  The prosecutor stated that they "probably had probable cause" to arrest and based on this advice she was arrested.

     The prosecutor and officer then appeared before the Court in a probable cause hearing and sought a warrant to search petitioner's house and car.  The officer testified that the petitioner had confessed to the shootings, but neither he nor the prosecutor disclosed that the confession was

[5 FSM Intrm. 395]

obtained under hypnosis and that while not hypnotized petitioner consistently denied participation.  Based upon this presentation, a search warrant was issued.  At trial, the confession obtained under hypnosis was ordered suppressed, and as a result, all charges were dropped.  Thereafter, petitioner filed an action under 42 U.S.C. 1983 for violation of her Fourth, Fifth, and Fourteenth Amendment Constitutional rights.

     The U.S. Court of Appeals affirmed the District Court's holding that respondent was immune from suit, stating that "a prosecutor should be afforded absolute immunity for giving legal advice to police officers about the legality of their prospective investigative conduct.  Burns v. Reed, 894 F.2d 949, 956 (8th Cir. 1990).  It also held that respondent should be immune for his role in the probable cause hearing.  Id. at 955 n.6.  Because the U.S. Courts of Appeals were divided on the scope of absolute prosecutorial immunity, the Supreme Court granted certiorari and considered whether the absolute prosecutorial immunity set forth in Imbler is applicable to: a) a prosecutor's participation in a probable cause hearing which lead to the issuance of a search warrant, and b) a prosecutor's legal advice to the police regarding investigative actions and the existence of probable cause. 2

a) Participation in a probable cause hearing leading to the issuance of a warrant.

     The Court held that a prosecutor's appearance in court in support of an application for a search warrant, and the presentation of evidence at the hearing, are protected by absolute immunity stating:

     The prosecutor's actions at issuehere appearing before a judge and presentingevidence in support of a motion for a search warrant clearly involve the prosecutor's "role as advocate for the State," rather than his role as "administrator or investigative officer," the protection for which we reserve  judgment in Imbler.  Moreover, since theissuance of a search warrant is unquestionably a judicial act, . . . appearing at a probable cause hearing is "intimately associated with the judicialphase of the criminal process."

Burns, 111 S. Ct. at 1942, 114 L. Ed. 2d at 561-62 (citations & footnote omitted).

[5 FSM Intrm. 396]

     The Court stated that absolute immunity was necessary in such

     [P]retrial court appearances by theprosecutor in support of taking criminalactions against a suspect present asubstantial likelihood of vexatiouslitigation that might have an untoward effecton the independence of the prosecutor.Therefore,  absolute immunity for thisfunction serves the policy of protecting thejudicial process, which underlies much of thecourt's decision in Imbler.

Id. at 1942, 114 L. Ed. 2d at 562.  Absolute liability from such actions did not put the public at risk, the Court reasoned, because the safeguards built into the judicial system serve as a check on prosecutorial actions at probable cause hearings and therefore "reduce the need for private damage actions as a means for controlling unconstitutional conduct."  Id.

     b)  Legal advice to police
     The Court refused to extend absolute immunity to a prosecutor's giving legal advice to the police in the investigative phase of the actions, holding neither history nor common law directly supports such a conclusion.  The Court disagreed with the Court of Appeals reasoning that the risk of vexatious litigation arising from the giving of advice supports absolute immunity, stating that absolute immunity "is designed to free the judicial process from the harassment and intimidation associated with litigation" and "that concern therefore justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor's role in the judicial proceedings, not for every litigation inducing conduct."  Id. at 1943, 114 L. Ed. 2d at 563-64 (emphasis in original).  It therefore held that the respondent failed to meet his burden of showing justification for an extension of absolute immunity to the prosecutorial function of giving advice to the police.

     c)  Conclusion
     Prosecutors enjoy absolute immunity from prosecution for their actions which are connected to their role in judicial proceedings, which include the request for the appearance and presentation of evidence at hearings related to obtaining search warrants.  Prosecutors do not, however, enjoy absolute immunity from prosecution for their role as an administrative or investigative officer, which includes participation in and giving advice to police regarding the execution of a search warrant.
 
     Pursuant to the doctrine of prosecutorial immunity as set forth above, the motion to dismiss filed by defendants Juergens and Finn is granted in part, and denied in part as follows:

[5 FSM Intrm. 397]

Count I in and of itself, and Counts II and III by reference to the allegations of Count I, relate to the obtaining an issuance of thesearch warrant for which Juergens and Finn are absolutely immune from suit. All threecounts also allege conduct related to thecarrying out of the warrant, includinginvestigative conduct, for which the doctrineof absolute immunity does not apply.  It doesnot appear to a certainty, therefore, that norelief can be granted under any state offacts alleged by these counts and defendant'smotion is therefore denied as to Counts I, IIand III;

Count IV alleges only conduct arising out of the issuance of the warrant for whichdefendants are absolutely immune fromprosecution.  No relief can be granted underthe facts alleged and this Count is therefore dismissed;

Count V contains numerous allegations arising out of the issuance of the warrant for whichJuergens and Finn enjoy absolute immunity.The only allegations for which immunity doesnot apply are those concerning Finn's allegedconduct during the course of the search.This Count is therefore dismissed as to Juergens only;

Counts VI and VII contain allegations centering only on the issuance of the warrant and the use of the police to carry it out. It makes no allegation that Juergens or Finngave improper advice to the police orunlawfully participated in the search. Consequently, it alleges only conduct for which defendants Juergens and Finn areabsolutely immune from suit.  These countsare therefore dismissed.
 
CONCLUSION
     Defendant Judge King's motion to dismiss is granted and the complaint is dismissed as to him for failure to state a claim upon which relief can be granted.

     The motion to dismiss filed by defendants Juergens and Finn is granted in part and denied in part: Counts I, II and III, state facts which if proven

[5 FSM Intrm. 398]

could state a claim upon which relief could be granted and are not therefore dismissed.  Counts IV, VI and VII fail to state facts which if proven could state claims upon which relief can be granted and are therefore dismissed.  Count V states facts which if proven could state a claim upon which relief could be granted as to Finn and is therefore not dismissed as to him.  Count V fails however to state facts which if proven could state a claim upon which relief could be granted as to Juergens and is therefore dismissed as to him.

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Footnotes:
 
1.  In King v. Skinner, Lofft 55, 56, 98 Engl. Rep. 529, 530 (K.B. 1772), Lord Mansfield observed that "neither party, witness, counsel, jury, or judge can be put to answer civilly or criminally, for words spoken in office."

2.  The Court pointed out in a footnote that since the decision in Imbler, most Courts of Appeals held that prosecutors are not entitled to absolute immunity for "investigative" or "administrative" acts. The Courts were split, however, as to where to draw the line (e.g., some courts held that prosecutors enjoy absolute immunity for giving legal advice to the police and others held that they do not.  Burns, 111 S. Ct. at 1938 n.2, 114 L. Ed. 2d at 556 n.2). Compare Wolfenberger v. Williams, 826 F.2d 930, 937 (10th Cir. 1987) with Marx v. Gumbinner, 855 F.2d 783, 790 (11th Cir. 1988).