James ELLIOTT v. Leander H. PEREZ, Jr., et al.
Civ. A. Nos. 82-574, 82-584.
United States District Court, Eastern District Louisiana.
561 F. Supp. 1325
March 31, 1983
COUNSEL: Anna E. Dow, Baton Rouge, La., Michael S. Fawer, New
Orleans, La., for plaintiffs.
Ben C. Toledano, Peter J. Butler, New Orleans, La., for
defendants.
OPINIONBY: McNAMARA
OPINION: [*1326]
OPINION AND ORDER
McNAMARA, District Judge.
This is a civil rights action filed pursuant to 42 U.S.C.
1983 and 1985, et seq., for damages and injunctive relief against
two state prosecutors, a State Court Judge, and others, alleging,
inter alia, bad faith and malicious prosecution against the
Plaintiffs, as well as the improper discharge of a Special Grand
Jury, in violation of the Plaintiffs' civil rights. The causes of
action alleged by each Plaintiff in this consolidated matter arise
out of the following factual situation.
On August 20, 1979, Leander H. Perez, Jr. acting in his capacity
as District Attorney for the Parish of Plaquemines, Louisiana,
convened a Special Grand Jury to investigate the activities of
certain persons in Plaquemines Parish. James Elliott, one of the
Plaintiffs in the instant action, was selected as the Grand Jury's
foreman.During the course of the Grand Jury's term, Plaintiff,
Joseph E. Defley, Jr., appeared as a witness on two occasions.
The term of this Grand Jury was initially for one year, but its
term was extended to February 19, 1981. Because the Grand Jury's
investigation included the activities of Chalin O. Perez, the
brother of the District Attorney, the latter recused himself from
any participation in the investigation insofar as it related to or
involved his brother, Chalin O. Perez. Twenty Fifth Judicial
District Judge Eugene E. Leon, Jr., on October 1, 1980, appointed
Giles J. Duplechin, District Attorney ad hoc, in place of the
recused District Attorney.
On the evening of February 15, 1981, unbeknownst to
representatives of the District Attorney's office, a brown envelope
containing numerous copies of a letter of the same date from Joseph
E. Defley, Jr. and addressed to James Elliott, along with an
attached resolution, was delivered to his home. The letter stated
in its entirety:
"February 15, 1981
PAGE 93 561 F. Supp. 1325, *1326
Mr. James Elliott
103 Hodge Avenue
Belle Chasse, Louisiana
Dear Mr. Elliott;
Only four more days for the grand jury to complete its work. I
don't envy you, because I'm sure that you have a great deal to
attend to.
I hope that you will forgive this intrusion, but I was anxious
to bring some ideas out which might assist the grand jury in
attempting to cut down on the corruption in the Parish.
For years, I have heard people say that what Judge Perez did in
forming Delta Development and fraudulently diverting mineral leases
to that corporation was "not illegal -- just unethical".
I disagreed with this, and on April 2, 1981, I read a (proposed)
resolution before the Commission Council in which I outlined
[*1327] the fraudulent scheme by which Perez bilked the public of
uncounted millions of dollars.
A copy of this resolution is enclosed -- it is the same one
which 60 minutes filmed.
I believe that Luke Petrovich concurs with me in connection with
my theory of the case. And for the first time, when I read of the
most recent indictment, I saw that someone else -- the grand jury --
also thought that the scheme was fraudulent from its inception,
in 1934. And of course, if you once concede that, then the
children, who were given sole ownership of Delta Development in
1940, were co-conspirators, and direct, willing participants (in),
and beneficiaries of, the fraud.
Parenthetically, I think that I should mention that I have two
objectives in mind as far as Plaquemines Parish is concerned --
first, to try to clean up the government, and it is my belief that
this can only be done by establishing some kind of representative
government, and secondly, to try to restore (the) oil lands to the
school board, and the council, from whom they were stolen. It is
not my desire to see ANYBODY go to jail, although sometimes I
realize that this is necessary, either to protect the public, or to
discourage others from commiting the same acts.
It appears that the power of the Perez family may be seriously
eroded, and if we are successful with the reapportionment suit, we
should see representative government established. Which leaves the
problem of reacquiring the lands.
If we file a civil suit, it (could) take twenty or thirty years
for it to be resolved. In addition, the defendants would initially
be the Perez children, who were willing accomplices to their
father's larcenous (acts). But if one or more of the children die,
and the grandchildren inherit Delta Development, a court hearing
the case several years from now might be reluctant to divest them
of their property rights, when by no stretch of the imagination
could they be said to have been privy to the original wrongdoing.
PAGE 94 561 F. Supp. 1325, *1327
I am convinced that the solution must be political, rather than
judicial. And I have been pondering the problem -- trying to find
an answer. I always knew that if sufficient pressure could be
brought on the Perezes so as to make them consider a return of the
oil lands and leases, the Parish would be the richer, by many
millions of dollars.
The solution was suggested by the latest indictment of Chalin.
An astute District Attorney might just be able to bargain with
Chalin toward reducing the charge, or taking a light sentence in
exchange for a plea or, if necessary, dropping the charge,
altogether, in exchange for Chalin's relinquishing any and all
claims which he or Delta Development might have on Parish Lands.
This does not address the question of how pressure is to be put
upon Lea and the two sisters, as well as Delta Development and the
officers of that company, including Mr. Eustis.
My feeling is that they are in a position to be charged as
principals in a criminal conspiracy to commit theft of public funds
by fraud committed on the Parish. The original scheme, of course,
dates back to 1934, but the conspiracy continues, even up to the
present time. La.Rev. Statutes 14:26; 14:67.
In addition to this, they could be charged with receiving stolen
things.La. Revised Statutes 14:69.
They could also be charged as accessories after the fact, in
that they he (l )ped their father, and continue to help Delta
Development Company and Mr. Eustis, to bilk the public in an
ongoing scheme of fraud. La.R.S. 14:25.
Lea Perez could further be charged with malfeasance in office,
for deliberate failure and refusal to investigate and prosecute the
theft of public funds, which is continuing.
Perhaps, if enough pressure could be put on them, all the Perez
family, as well as Delta Development, and other companies which may
be involved in the [*1328] scheme, could be persauded to cough up
their ill gotten gains, in order to avoid the penalties of law.
I understand that you might have diffculty in considering
indictments as outlined, because of one or more court orders, and
for one reason or another, you may decide that my suggestions are
not practical. I merely put them to you as being possible courses
of action -- you will have to consult counsel and make your own
decision concerning these matters.
Please feel free to share the ideas that I have outlined, and to
discuss them with the grand jury. If you want me to appear to
outline these ideas, I shall be happy to -- just have the secretary
call me.
I hope that you will not mind my writing you -- I feel a certain
sense of desperation because of the short time left to the grand
jury, and decided that this was the quickest means of communicating
with you.
You need not bother acknowledging receipt of this letter -- if
you need any further information, please call me.
PAGE 95 561 F. Supp. 1325, *1328
Thank you much for the major effort which you and the other
members of the grand jury are making -- you are doing a real
service to the people of the Parish of Plaquemines. Your courage
and leadership will be long remembered.
Yours truly,
Joseph E. Defley, Jr.
P.S. The purpose of this letter is to serve as a continuation
of my testimony; it is not intended for general circulation. I
would appreciate your confining its dissemination to those who have
a "need to know", as we used to say in the Marine Corps."
Attached to the Defley letter was a Resolution which Defley
apparently proposed be adopted by the Plaquemines Parish Commission
Council, wherein the Council was to require a strict accounting
from Delta Development Company, Inc. and various members of the
Perez family of all funds received in connection with any sale or
lease agreement relating to public lands in Plaquemines Parish.
The Resolution was to further require that certain oil companies
turn over to the Plaquemines Parish Commission Council all funds
which they would otherwise pay to Delta Development Company, Inc.,
its stockholders or assigns, insofar as said monies represent
profits on public lands. Finally, the Resolution would further
request that the United States Attorney for the Eastern District of
Louisiana and the United States Department of Justice take whatever
criminal and/or civil action necessary to secure the return of all
public lands and monies unlawfully diverted by Delta Development
Company, Inc. its shareholders and assigns.
Although it is uncertain how many copies of the letter were
delivered to Elliott, on the following morning, Elliott distributed
a copy of Defley's letter to each member of the Grand Jury and at
no time did Elliott tell either Judge Leon or any legal adviser to
the Grand Jury that he had received the letter from Defley.
On February 17, 1981, two days prior to the end of its term, the
Grand Jury voted to indict Leander H. Perez, Jr., an officer of
Delta Development Company, Inc., for the alleged unlawful taking of
$43,000,000.00 in Parish funds, and Delta Development Company,
Inc., for the alleged theft of $72,000,000.00 in Parish funds.
After the Grand Jury voted the aforementioned indictments, James
Elliott, foreman of the Special Grand Jury, attempted to secure a
signature from a representative of the District Attorney's office,
a formality he believed necessary to validate the indictment.
Giles Duplechin, District Attorney ad hoc, refused to sign the
indictment stating that his authority as ad hoc counsel only
extended to matters which directly concerned Chalin O. Perez and
that Leander H. Perez, Jr. still retained the role of adviser to
the Grand Jury on other matters. Mr. Elliott then sought the
assistance of Frank Klein, First Assistant District Attorney for
the Parish of Plaquemines, who similarly declined to sign the
indictment for the stated reason that he was a member of the
District Attorney staff and the indictments involved the District
[*1329] Attorney and a corporation of which the District Attorney
was a major stockholder and, thus, he was unable to act.
On that same date, February 17, 1981, after having his request
to sign the indictments denied by both Giles Duplechin and Frank
Klein, Grand Jury Foreman James Elliott, then contacted Judge
Eugene E. Leon, Jr., the judicial officer in charge of the Special
Grand Jury. Elliott requested that Judge Leon have the
PAGE 96 561 F. Supp. 1325, *1329
appropriate officer of the Court sign both indictments. After
several telephone conversations with Judge Leon concerning the
question of whether such a signature was necessary to validate the
indictment, Elliott was advised by Judge Leon that he would arrange
a conference with Louisiana Attorney General, William J. Guste,
Jr., to discuss the matter on the morning of February 18, 1981, and
that the Special Grand Jury should adjourn for the day. However,
no conference involving the Attorney General, Judge Leon or Mr.
Elliott ever took place because of the subsequent discharge of the
Special Grand Jury at 10:10 a.m. on February 18, 1981.
Leander H. Perez, Jr. learned that the Grand Jury was
considering indictments against him and Delta Development Company,
Inc., from Frank Klein on February 17, 1981. The proposed
indictments were the subject of a meeting at noon on that day
between Perez, Klein and Judge Leon held at Belsom's Restaurant in
Gretna, Lousisiana, at which time Perez requested that Frank Klein
prepare a Motion for Perez to recuse himself on those two matters.
Klein, in fact, undertook preparation of the Motion in anticipation
that Perez would file the recusal the next morning. However, the
Motion was apparently never presented to the Court. Frank Klein
telephoned Mr. Elliott from the restaurant to tell him that Perez
was going to recuse himself and his staff (including Klein) in the
investigation of Leander H. Perez, Jr., and Delta Development
Company, Inc.
Subsequently, during the early evening of February 17, 1981,
Perez again met with Klein. The purpose of the meeting is unclear.
However, it is contended that neither Klein nor Perez knew of the
Defley letter at that time.
It was supposedly after this second meeting with Klein that
Perez learned of the Defley letter, although it is unclear as to
the source of his information. In any event, Perez sought the
advice of John M. Mamoulides, District Attorney of the Parish of
Jefferson, and Gilbert V. Andry, III, Attorney at Law, as to the
course of action he should follow. Both Mamoulides and Andry
advised Perez that he had no other proper course of action than to
file a motion to discharge the Grand Jury because the Grand Jury
had been corrupted by outside influence. It is also unclear whether
Mamoulides and Andry were aware of the impending indictments
against Perez and the company of which he held a substantial
interest.
On the morning of February 18, 1981, Perez presented the Motion
to Discharge the Grand Jury, which had been prepared for him by Mr.
Andry, along with the Defley letter to Judge Leon. Judge Leon
signed the Order discharging the Special Grand Jury effective
February 18, 1981, at 10:10 a.m. Following this action, Judge Leon,
via telephone, advised Grand Jury Foreman, James Elliott, that the
Grand Jury, which at that time was assembled at the Belle Chasse
Lockup, should report immediately to his Courtroom in Point-a-la-Hache.
In due time the Grand Jury appeared as directed whereupon
in open court it was advised by Judge Leon that the Special Grand
Jury had been discharged by Order of the Court at 10:10 a.m. on
that same date. Further, at this time Judge Leon advised James
Elliott that the District Attorney had filed a Bill of Information
charging him and Joseph E. Defley, Jr. with the crime of conspiracy
to commit extortion on Leander H. Perez, Jr., stemming from the
Defley letter of February 15, 1981 to Elliott, Foreman of the
Special Grand Jury.
District Attorney Perez indeed filed these Bills of Information
charging Elliott and Defley with conspiracy to commit extortion on
February 18, 1981, the very same day. [*1330] Defley and
Elliott were both subsequently
PAGE 97 561 F. Supp. 1325, *1330
arrested, charged, incarcerated in jail and required to post bond
to effect their release. It was not until March 20, 1981, that
Perez recused himself from prosecution of this matter.
In addition, on February 25, 1981, one week after the discharge
of the Grand Jury, a Bill of Information was filed by Assistant
District Attorney Frank Klein charging Defley with jury tampering,
which Bill of Information, the Plaintiff alleges, was urged by
Judge Leon. Leander H. Perez, Jr. later recused himself in the
jury tampering charge on May 18, 1981, allegedly after a Motion to
recuse the District Attorney was filed by Defley and a hearing set
to hear the matter on that same date.
On February 27, 1981, Louisiana Attorney General William J.
Guste, Jr. filed a Motion in the Twenty-Fifth Judicial District
Court, Parish of Plaquemines, State of Louisiana, to supersede the
office of the District Attorney for the Parish of Plaquemines in
any criminal matters arising out of the activities of the Special
Grand Jury which had been discharged, including prosecution against
members of that Grand Jury. The Attorney General was allowed to
supersede the District Attorney in these matters by mandate of the
Twenty-Fifth Judicial District Court, Parish of Plaquemines, on
February 24, 1982, acting pursuant to a writ granted by the
Louisiana Supreme Court on May 18, 1981. All charges which were
pending against Defley and Elliott were subsequently dismissed by
the Attorney General's office.
The Plaintiffs, James Elliott and Joseph E. Defley, Jr.,
subsequently filed suit on February 16, 1982, against Defendants,
Leander H. Perez, Jr., Frank Klein, and Eugene E. Leon, Jr., and
others seeking injuctive relief and damages for the alleged
violation of the Plaintiffs' civil rights, pursuant to 42 U.S.C.
1983 and 1985, et seq. Specifically, Plaintiff, James Elliott,
alleges that these Defendants, alone and in concert with each
other, initiated criminal prosecution against Elliott in bad faith,
on the charge of conspiracy to commit extortion, without
substantial hope of obtaining a valid conviction and for the mere
purpose of harassing and intimidating Elliott; that these actions
were taken with retaliatory motivation to deny Elliott his right to
due process under the Fourteenth Amendment; that these Defendants
knowingly and intentionally conspired through criminal prosecution
and improper discharge of the Special Grand Jury to wrongfully
deprive the Plaintiff of his right to participate in Grand Jury
proceedings and interfere with his duty to serve as a Grand Juror
in violation of his constitutional rights.
Plaintiff, Joseph E. Defley, Jr., similarly alleges bad faith
and malicious prosecution on the part of the Defendants in causing
him to be wrongfully charged with conspiracy to commit extortion
and jury tampering in violation of his right to due process of law
and equal protection under the Fourteenth Amendment and his right
to free speech guaranteed by the First Amendment; and further that
these Defendants knowingly and intentionally conspired, through
criminal prosecution and improper discharge of the Grand Jury, to
prevent the indictment of the Defendant, Leander H. Perez, Jr., and
Delta Development Company, Inc., in violation of his constitutional
rights. The Plaintiffs have additionally alleged that Judge Leon
on Motion of the Office of the District Attorney ordered that the
Minutes of the Special Grand Jury be produced and impounded in his
own Court allegedly in an effort to assist Perez in avoiding the
indictments against him and Delta Development Company, Inc. Both
Plaintiffs seek compensatory and punitive damages from the
Defendants.
PAGE 98 561 F. Supp. 1325, *1330
Defendants, Leander H. Perez, Jr. and Frank Klein, filed a
Motion to Dismiss for Failure to State a Claim Upon Which Relief
Can Be Granted, pursuant to Federal Rule of Civil Procedure
12(b)(6), in each of these consolidated actions, seeking dismissal
of the Plaintiffs' complaints for damages on the grounds of
prosecutorial immunity. Defendant, Eugene E. Leon, Jr., filed
similar motions to dismiss asserting judicial immunity. The issues
raised by these motions [*1331] were extensively briefed by the
parties, and the Court, after hearing oral argument, took the
matter under advisement. After considering the memoranda
submitted, the argument of counsel and the applicable law, the
Court now rules as follows.
PROSECUTORIAL IMMUNITY
It should be noted, at the outset, that the general standard a
Court should follow in ruling on a motion to dismiss, pursuant to
Federal Rule of Civil Procedure 12(b)(6), is to accept all material
factual allegations in the complaint as true and view these facts
in a light most favorable to the Plaintiff. Mann v. Adams Realty
Co., Inc., 556 F.2d 288 (5th Cir.1977); 5 C. Wright & A. Miller
1357, at 594-96. However, where matters outside the pleadings are
presented in support of this motion, and not excluded by the Court,
the motion shall be treated as one for summary judgment. Rule
12(b), Fed.R.Civ.P.; Murray v. Gelderman, 566 F.2d 1307 (5th
Cir.1978). Accordingly, because in this case sworn testimony from
proceedings in another Court has been relied upon by Defendants
Perez and Klein, in urging their Motion, this Court shall treat the
Motion as one for summary judgment and dispose of it in accordance
with Federal Rule of Civil Procedure 56.
The starting point in any analysis of a question of
prosecutorial immunity from a Civil Rights suit for damages is the
leading case of Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47
L.Ed.2d 128 (1976), wherein the United States Supreme Court had its
first opportunity to address the Section 1983 liability of a
State prosecuting officer. In Imbler, the Plaintiff brought a
civil rights action pursuant to 42 U.S.C. 1983 against a
deputy district attorney alleging that the prosecutor had knowingly
introduced perjured testimony and suppressed material evidence at
Imbler's trial on criminal charges.
The Court, after reviewing the common law rule of prosecutorial
immunity and its underlying policy reasons, held that prosecutors
enjoy the same absolute immunity under Section 1983 as at common
law. n1 The Court, in Imbler, expressed the considerations of
public policy that underlie the common law rule, and which likewise
countenance absolute immunity under Section 1983, as follows:
"A prosecutor is duty bound to exercise his best judgment both
in deciding which suits to bring and in conducting them in court.
The public trust of the prosecutor's office would suffer if he were
constrained in making every decision by the consequences in terms
of his own potential liability in a suit for damages. Such suits
could be expected with some frequency, for a defendant often will
transform his resentment at being prosecuted into the ascription of
improper and malicious actions to the States' advocate. Further,
if the prosecutor could be made to answer in Court each time such
a person charged him with wrongdoing, his energy and attention
would be diverted from the pressing duty of enforcing the criminal
law." 96 S.Ct. at 992. (Citations omitted).
n1 Absolute immunity for prosecutors has also been held to
extend to civil suits for damages under 42 U.S.C. 1985. Perez v.
Borchers, 567 F.2d 285 (5th
PAGE 99 561 F. Supp. 1325, *1331
Cir.1978), cert. den., 439 U.S. 831, 99 S.Ct. 109, 58 L.Ed.2d 126
(1978).
This, the Court stated, would move us away from the desired
objective of stricter and fairer law enforcement.
The Court further stated:
"To be sure, this immunity does leave the genuinely wronged
defendant without civil redress against a prosecutor whose
malicious or dishonest action deprives him of liberty. But the
alternative of qualifying a prosecutor's immunity would disserve
the broader public interest." Id., 96 S.Ct. at 993.
Thus, under Imbler, a prosecutor is absolutely immune from a
civil suit for damages under 42 U.S.C. 1983 even if the action is
undertaken maliciously, intentionally and in bad faith.
However, despite the broad and sweeping language contained in
the opinion, the Supreme [*1332] Court in Imbler was careful to
limit its holding to alleged civil rights violations committed in
the course of "initiating a prosecution and presenting the State's
case." The Court expressly left open the question of whether the
policies that mandate absolute immunity extend to those aspects of
the prosecutor's responsibilities that cast him in the role of an
administrator or investigative officer rather than that of
advocate.The Court reasoned:
"We recognize that the duties of the prosecutor in his role as
advocate for the State involve actions preliminary to the
initiation of a prosecution and actions apart from the Courtroom.
A prosecuting attorney is required constantly, in the course of his
duty as such, to make decisions on a wide variety of sensitive
issues. These include questions of whether to present a case to a
grand jury, whether to file an information, whether and when to
prosecute, whether to dismiss an indictment against particular
defendants, which witnesses to call, and what other evidence to
present. Preparation, both for the initiation of the criminal
obtaining, reviewing, and evaluating of evidence. At some point,
and with respect to some decisions, the prosecutor no doubt
functions as an administrator rather than as an officer of the
Court. Drawing a proper line between these functions may present
difficult questions, but this case does not require us to
anticipate them." Id., 96 S.Ct. at 995, n. 33.
The Fifth Circuit has since addressed this question left
unanswered by the Imbler decision in Marrero v. City of Hialeah,
625 F.2d 499 (5th Cir.1980) cert. denied 450 U.S. 913, 101 S.Ct.
1353, 67 L.Ed.2d 337 (1981). There, the Court, relying upon Imbler
and the Supreme Court's more recent holding in Butz v. Economou,
438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), held that State
prosecutors are not entitled to absolute immunity while engaged in
administrative or investigative activities, but are only entitled
to a qualified (good faith) immunity in these instances.
The Court's reasoning was twofold. First, the prosecutor's
immunity, which is derived from the absolute immunity accorded
jduges and grand jurorers, is necessitated by the concern that
these persons would be intimidated in the exercise of their
discretion by the fear of retaliatory lawsuits brought by angry
defendants. Secondly, the safeguards built into the judicial
system tend to reduce the need for private damage actions as a
means of controlling unconstitutional conduct. However, the Court
noted that when a prosecutor
PAGE 100 561 F. Supp. 1325, *1332
steps outside the confines of the judicial setting, these checks
and safeguards inherent in the judicial process do not accompany
him, and thus there is a greater need for private actions to curb
prosecutorial abuse and to compensate for abuse that does occur.
In Marrero, suit had been brought against the City of Hialeah
and two state prosecutors for alleged violations of the plaintiff's
civil rights under Section 1983. The particular prosecutorial
activities of which the plaintiffs complained were the prosecutor's
participation in an allegedly illegal search and seizure, and the
prosecutor's alleged slandering of the plaintiffs' personal and
business reputations by announcements made to the local news media
regarding the plaintiffs' alleged criminal activities.The Court
found that neither of these activities fell within the sphere of
activity for which prosecutors were given absolute immunity under
Imbler. The Court stated:
"Although the Imbler Court acknowledged that it will often be
difficult to determine whether a particular prosecutorial activity
is "investigative or administrative" rather than "quasi-judicial,"
here we have little difficulty determining that the activities
challenged are outside the scope of a prosecutor's quasi-judicial
duties." Marrero, supra at 505.
Accordingly, because the Court found that only a qualified
immunity extends to State prosecutors engaged in investigative or
administrative activities, the case was remanded to the Trial Court
for further proceedings. [*1333]
It should be pointed out that while the Fifth Circuit recognized
the United States Supreme Court in Imbler had rejected the approach
of simply ascertaining whether the prosecutor was acting within the
bounds of his authority, and emphasized that the inquiry must focus
instead upon "the functional nature of the activities, rather than
the prosecutor's status," the Court, nonetheless, carefully pointed
out that if a State prosecutor or any other official is acting
outside the scope of his authority, he is entitled to no immunity
at all, qualified or absolute. Marrero v. City of Hialeah, supra,
at 504, n. 4. This point is one of important consideration in
resolving the immunity issue before this Court.
Here, Defendants, Perez and Klein, while denying the impropriety
of any of their actions, have asserted that the activities
complained of, i.e., the institution of criminal proceedings
against the Plaintiffs and the discharge of the Special Grand Jury,
are clearly within the scope of a prosecutor's quasi-judicial
duties, thereby entitling them to absolaute immunity under Imbler.
The Plaintiffs, on the other hand, contend that District Attorney
Perez and his assistant, Frank Klein, were not merely performing
their official duties, but that their activities, unlike those of
the prosecutor in Imbler, were engaged in for the sole purpose of
furthering a private interest. Thus, it is alleged that Perez and
Klein were acting outside the scope of their authority and,
therefore, not entitled to any immunity. The Plaintiffs rely
primarily upon the Ninth Circuit holding in Beard v. Udall, 648
F.2d 1264 (9th Cir.1981).
In Beard, the Plaintiffs filed suit against a State Court Judge,
a county prosecutor and a county sheriff under 42 U.S.C. 1983 for
alleged Constitutional violations in connection with certain civil
and criminal proceedings. The Plaintiffs alleged, among other
things, that Udall, the county prosecutor, caused criminal charges
to be filed against the Plaintiffs in order to further civil
litigation involving one of Udall's private clients and that Udall
filed
PAGE 101 561 F. Supp. 1325, *1333
these charges knowing them to be baseless. The District Court
awarded summary judgment in favor of the Defendants on the grounds
of official immunity. The Ninth U.S. Circuit Court of Appeals on
the issue of Udall's prosecutorial immunity held that where a
prosecutor faces an actual conflict of interest, and files charges
he or she knows to be baseless, then the prosecutor is acting
outside the scope of his or her authority and thus lacks immunity.
Beard v. Udall, supra. The Court of Appeals, therefore, remanded
the case to the District Court for a determination by the trier of
fact of whether Udall actually participated in the filing of the
criminal charges and whether Udall knew the charges were baseless
when filed. The Court reasoned that a prosecutor who faces a
conflict of interest, such as Udall is in a poor a position to act
impartially as a Judge who enters into an agreement to predetermine
the outcome of a judicial proceeding, citing Rankin v. Howard, 633
F.2d 844 (9th Cir.1980), cert. denied 451 U.S. 939, 101 S.Ct. 2020,
68 L.Ed.2d 326 (1981), wherein the Court concluded that a prior
agreement to decide in favor of one party is not a judicial act.
Similarly, in Brooks v. Fitch, 534 F.Supp. 129 (D.N.J.1981), a
Civil Rights action was brough against an attorney in his
individual capacity and in his capacity as county prosecutor
alleging that the attorney abused his position as county prosecutor
in initiating a criminal prosecution against the Plaintiff, with
whom he had a personal dispute over a security interest in an
automobile. Summary Judgment was granted in favor of the prosecutor
in his official capacity.On a subsequent motion for summary
judgment, the Court, on the issue of whether the prosecutor, in his
individual capacity, was entitled to absolute immunity noted that
except for the peculiarly personal interest of the county
prosecutor in the actions taken, the prosecuting attorney would
otherwise be entitled to absolute immunity, stating:
". . . the decisions to extradite and to issue an arrest warrant
fall within the scope of absolute immunity. The filing of the
affidavit in connection with the requisition is similarly integral
to the initiation [*1334] and pursuit of the criminal
prosecution." Id. at 132.
The Court then stated:
"Nevertheless, the event set forth in the complaint, if
accurate, could indicate to a jury that Fitch was acting in a
sphere which would be comparable to acting outside the scope of his
jurisdiction in that his involvement was an unusually and
peculiarly personal one." Id. at 134.
The Court then went on to conclude that inasmuch as the factual
allegations involved a conflict of interest, a material issue of
fact existed as to whether the actions taken by the prosecutor were
"prosecutorial" acts, or alternatively, whether or not the acts are
clearly beyond the scope of his authority, and accordingly, denied
summary judgment. As a caveat, the Court stated:
"This holding is a very narrow one, limited to the peculiar
circumstances of this case in which the prosecutor faced a conflict
of interest (e.g., prosecutor is the complainant) and is alleged to
have acted purely out of a personal involvement in a civil matter."
Id. at 136.
District Attorney Leander H. Perez, Jr.
PAGE 102 561 F. Supp. 1325, *1334
This Court finds the reasoning expressed in Beard and Brooks
persuasive. There are several indicators which point to the
existence of such a conflict of interest in the present case. As to
the allegations of improper discharge of the Grand Jury, it appears
quite clear that Perez was aware of the impending indictments at
the time he filed the Motion to Discharge the Grand Jury on
February 18, 1981, although it has been asserted that Perez did not
know, at that time, that the Grand Jury had, in fact, already voted
to return the indictments against Perez and Delta Development
Company, Inc., but only that such indictments were under
consideration by the Grand Jury, prompted by the Defley letter.
Perez has also asserted that, to the best of his knowledge, the
Grand Jury had completed the function for which it was impaneled
and had completed its report on all offenses presented to it by the
District Attorney and his staff. The Plaintiffs, on the other hand,
argue that Perez had full knowledge of the impending indictments
charging him and Delta Development Company, Inc. with criminal
acts, and that Perez knew the indictments had not yet been filed.
Thus, the Plaintiffs allege that Perez, in moving to discharge the
Special Grand Jury was merely attempting to elude prosecution.
As to the allegation of bad faith malicious prosecution, Perez
filed the Bill of Information charging Elliott and Defley with
conspiracy to commit extortion shortly after the Special Grand Jury
had been discharged. The Plaintiffs have alleged that these
charges were brought against them, as a personal political
vendetta, in retailiation for their attempts to secure indictments
against Perez and Delta Development Company Inc. This Bill of
Information lists District Attorney Perez as both the State
Prosecutor and the victim of the alleged crime, an obvious conflict
of interest.
Accordingly, after careful consideration of this matter, this
Court finds that Leander H. Perez, Jr. was acting under his
apparent authority as District Attorney for the Parish of
Plaquemines, Louisiana, both when he moved to discharge the Special
Grand Jury because of outside influence and when he filed criminal
charges against the Plaintiffs. As to his actions in discharging
the Grand Jury, this Court finds that Perez was acting in an
administrative and/or investigative capacity as District Attorney
and accordingly, at most, is only entitled to qualified immunity
for these actions under Marrero. To benefit from this qualified
immunity Perez must show that he was acting in good faith. Should
the fact finder conclude he was not acting in good faith in
discharging the Special Grand Jury but was motivated solely by
personal interests, he would be considered acting outside of the
scope of his authority and would be entitled to no immunity.
With regard to Perez's actions in filing the Bill of Information
against Elliott and Defley, charging conspiracy to commit [*1335]
extortion, this Court finds that this is precisely the type of
activity for which prosecutors have absolute immunity under Imbler
and but for the conflict issue, Perez would enjoy absolute immunity
in that regard. However, if Perez was solely motivated by personal
reasons, pursuant to Beard, he would be acting outside of the scope
of his authority and would enjoy no immunity whatsoever. On the
other hand, should the fact finder conclude from the evidence
presented that Defendant Perez was not motivated solely by personal
interests (i.e., was in good faith), he would be entitled to the
benefits of Imbler immunity.
PAGE 103 561 F. Supp. 1325, *1335
In summary, for Defendant Perez to have the benefit of either
the qualified immunity which would attach to administrative and/or
investigate actions (discharging the Special Grand Jury) or to have
the benefit of the absolute immunity as set forth in Imbler for
prosecutorial actions (filing of the Bills of Information), the
test is the same. At the time of either action, i.e., discharging
the Special Grand Jury or filing the Bills of Information, was
Perez acting in good faith or was he solely motivated by self-interest?
Material issues of fact remain before that determination can be made. n2
n2 It has been suggested that this Court is bound by the State
Court finding of fact rendered in the proceedings initiated by
Attorney General Guste to supersede the District Attorney. The
Court does not agree. Excerpts from the transcript of those
proceedings clearly demonstrate that Perez was not given a "full
and fair opportunity" to litigate the issues before this Court.
Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308
(1980).
Assistant District Attorney Frank Klein
As to Plaintiffs' allegations against Assistant District
Attorney Frank Klein, it is undisputed that Klein had knowledge of
the impending indictments against Perez and Delta Development Co.,
Inc., at the time he filed a Bill of Information against Defley for
jury tampering, although Klein has testified that he did not learn
that the Special Grand Jury had actually voted the indictments
until he read the affidavit of James Elliott, which was attached to
Attorney General Guste's Motion to Supersede the District Attorney
filed on February 27, 1981. It has been alleged that Klein brought
the charges at the insistence of Judge Leon, with strictly
retaliatory motivations.
Nevertheless, Klein does not fall within the narrow exception
carved out by the Ninth Circuit in Beard. Although Klein's conduct
may have been the result of personal motivations, his personal
interest was only one of potential indirect gain. Klein, unlike
Perez, was not the target of any impending indictments. Nor was
Klein the alleged victim, as well as prosecutor, of any criminal
charges against the Plaintiffs, as was Perez. Accordingly, this
Court finds that the actions of Defendant, Frank Klein, clearly
fall within the scope of his quasi-judicial duties as Assistant
District Attorney for the Parish of Plaquemines, Louisiana, (i.e.,
the initiation and pursuit of criminal prosecutions) , thereby
entitling him to absolute immunity under Imbler whether or not his
actions were taken in bad faith.
JUDICIAL IMMUNITY
Turning now to the Motion of Defendant, Eugene E. Leon, Jr., to
Dismiss the Plaintiffs' claim on grounds of judicial immunity ,
the Court points out initially that matters outside the pleadings
have not been submitted to the Court which specifically pertain to
the issue of judicial immunity. Therefore, the Court, in ruling on
Defendant Leon's Motion to Dismiss, will accept all material
factual allegations in the Complaint as true and view these facts
in a light most favorable to the Plaintiffs. 5 C. Wright and A.
Miller 1357, at 594-96; Mann v. Adams Realty Co., Inc., supra.
The United States Supreme Court, over a century ago, first
adopted the common law doctrine of judicial immunity as "a general
principal 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
PAGE 104 561 F. Supp. 1325, *1335
convictions, without apprehension of personal [*1336]
consequences to himself." n3 Bradley v. Fisher, 80 U.S. (13 Wall.)
335, 347, 20 L.Ed. 646 (1872). Relying upon this reasoning, the
Supreme Court in Bradley held that "judges of courts of superior or
general jurisdiction are not liable to civil actions for their
judicial acts, even when such acts are in excessive of their
jurisdiction, and are alleged to have been done maliciously or
corruptly." Id. 80 U.S. (13 Wall.) at p. 351.The Court drew a
distinction between acts in excess of jurisdiction, which are
protected by immunity, and acts in the clear absence of all
jurisdictions, which are unprotected. Judicial immunity was
further extended to suits for civil damages under 42 U.S.C. 1983 in
Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, L.Ed.2d 188.
n3 Although ensuring the independence of the judiciary is a
crucial policy basis supporting judicial immunity, it is but one of
many such policies. Others include: (1) the need to avoid
vexatious litigation against judges; and (2) the need for an end to
litigation. Harper v. Merckle, 638 F.2d 848 (5th Cir.1981), cert.
denied 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981).
The most recent and authoritative pronouncement on this question
is Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331
(1978), a widely acclaimed Supreme Court case wherein a State Court
Judge ordered the sterilization of a fifteen year old girl,
pursuant to a petition filed by the girl's mother.A Civil Rights
action was later brought by the daughter and her husband against
the Judge, among others, seeking damages for the alleged violation
of her constitutional rights. The Court observed:
". . . the necessary inquiry in determining whether a defendant
judge is immune from suit is whether at the time he took the
challenged action he had jurisdiction over the subject matter
before him. Because "some of the most difficult and embarrassing
questions which a judicial officer is called upon to consider and
determine relate to his jurisdiction . . .," the scope of the
judge's jurisdiction must be construed broadly where the issue is
the immunity of the judge.A judge will not be deprived of immunity
because the action he took was in error, was done maliciously, or
was in excess of his authority; rather, he will be subject to
liability only when he has acted in the "clear absence of all
jurisdiction."" 98 S.Ct. at 1104-05. (Citations omitted.)
The Court later stated, "it is only for acts performed in his
"judicial" capacity that a judge is absolutely immune . . ." Id. 98
S.Ct. at 1106.
Relying upon the Supreme Court's holding in Stump, the Fifth
Circuit, in Harper v. Merckle, supra note 3, articulated a two-part
test to be used in determining whether absolute judicial immunity
can be asserted. The Court's inquiry must focus on (1) whether the
judge's actions were "judicial acts" and, if so, (2) whether or not
they fall clearly outside of his jurisdiction. Id. at 858.
However, the Fifth Circuit recognized how far the cloak of judicial
immunity extends when it stated:
". . . we take as settled law the proposition that the vast
majority of 1983 cases in which judges are named as defendants,
judicial immunity will bar the action. Moreover, as our analysis
infra at p. 859 & n. 17 reveals, we can envision no situation --
where a judge acts after he is approached qua judge by parties to
a case -- that could possibly spawn a successful 1983 suit. In
fact, we note that even a judge who is approached as a judge by a
party for the purpose of conspiring to violate 1983 is properly
immune from a damage suit.
PAGE 105 561 F. Supp. 1325, *1336
See, Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976 (5th Cir.
1979) (en banc), aff'd sub nom. Dennis v. Sparks, 449 U.S. 24, 101
S.Ct. 183, 66 L.Ed.2d 185 (1980). But cf. Rankin v. Howard, 633
F.2d 844 (9th Cir.1980)." Id. at 856, n. 9.
The Fifth Circuit, in Harper, shed some light on what
constitutes a "judicial act" to which immunity extends. Drawing
from language in its earlier opinion in McAlester v. Brown, 469
F.2d 1280 (5th Cir.1972), the Court noted four factors, which taken
together, compel the conclusion that a judicial act is involved:
[*1337]
"(1) The precised act complained of . . . is a normal judicial
function; (2) The events involved occurred in the judge's chambers;
(3) The controversy centered around a case then pending before the
judge; and (4) The confrontation arose directly and immediatley out
of a visit to the judge in his official capacity." Harper, supra at
1282.
Harper involved a bizarre series of events wherein the plaintiff
attempted to deliver a child support payment to his former wife at
the courthouse where she worked. The plaintiff, Harper, had a
confrontation with Judge Merckle, which ultimately resulted in his
incarceration in jail for contempt of court. This conviction was
later overturned on appeal. Harper then filed a Civil Rights
action against Judge Merckle, pursuant to 42 U.S.C. 1983, et seq.
The Court, based on the factors enumerated above, concluded that
the defendant judge's actions were not "judicial acts", relying
particularly on the fact that the plaintiff's incarceration did not
center around any matter then pending before the judge, but rather
the domestic problems of Harper's former wife; and further that
Harper did not visit the judge "in his official capacity," but
instead sought only his former wife, whose office was adjacent to
Judge Merckle's chambers, to settle his account with her.
The Court, however, cautioned that its holding was exceedingly
narrow and tailored to that rare factual setting, stating:
". . . we hold only that when it is beyond reasonable dispute
that a judge has acted out of personal motivation and has used his
judicial office as an offensive weapon to vindicate personal
objectives, and it further appears certain that no party has
invoked the judicial machinery for any purpose at all, then the
judge's actions do not amount to "judicial acts." These non-
judicial acts, to state the obvious, are not cloaked with judicial
immunity from suit under 1983.
We find, accordingly, that Judge Merckle should not be accorded
absolute judicial immunity because his acts were not "judicial
acts." As such, we need not reach the question of whether he acted
in complete absence of jurisdiction." Id. at 859.
In the following analysis outlined above, this Court must
determine whether the conduct of Judge Leon in granting the Motion
to Discharge the Special Grand Jury, in allegedly conspiring to
have the Plaintiffs, Elliott and Defley, indicted and in ordering
that the Minutes of the Special Grand Jury be impounded in his
Court, were "judicial acts," and if so, whether Judge Leon was
acting "in the clear absence of all jurisdiction."
PAGE 106 561 F. Supp. 1325, *1337
Adhering to the strict guidelines of the Harper decision, this
Court concludes that the orders issued and/or actions taken by
Judge Leon were "judicial acts" which arose out of his
responsibility as the judicial officer in charge of the Special
Grand Jury; and that he was not acting "in clear absence of all
jurisdiction," but in his official capacity as Judge of the Twenty-
Fifth Judicial District Court, Parish of Plaquemines, Louisiana.
The fact that his action may later be proven erroneous or in poor
judgment is of no consequence. Stump v. Sparkman, supra. Therefore,
this Court finds that Judge Leon is entitled to the full and
absolute immunity, accorded judicial officers.
Accordingly, for the reasons stated above;
IT IS ORDERED that the Motion of Defendant, Leander H. Perez,
Jr., to Dismiss, is hereby DENIED.
IT IS FURTHER ORDERED that the Motion of Defendant, Frank Klein,
is hereby GRANTED, dismissing the Plaintiffs' claims against
Defendant, Frank Klein, in each of these consolidated actions, with
costs.
IT IS FURTHER ORDERED that the Motion of Defendant, Eugene E.
Leon, Jr., to Dismiss, is hereby GRANTED, dismissing the
Plaintiffs' claims against Defendant, Eugene E. Leon, Jr., in each
of these consolidated actions, with costs.