Metropolitan News-Enterprise


Wednesday, May 9, 2007


Page 1


Defect in Prosecutor’s Appointment Does Not Vitiate Immunity—C.A.




A district attorney’s failure to file a deputy’s appointment with the court clerk does not deprive the deputy of absolute immunity from civil liability for official acts, the Third District Court of Appeal ruled yesterday.

Reversing a contrary ruling by a Sierra Superior Court judge, the court threw out a suit by Michael M. Miller, charging four prosecutors with malicious prosecution. Miller was the manager of the Original Sixteen to One Mine in rural Alleghany when mine worker Mark Fussell was killed in 2000.

Fussell died of injuries suffered when his head hit a protruding ore chute, breaking his neck. State and federal investigators concluded that the death resulted from failure to install warning devices conspicuously marking the restricted clearance, as required by applicable safety rules.

The state Department of Industrial Relations referred the case to the then-district attorney in Sierra County, Sharon O’Sullivan, under a program that provides assistance to rural prosecutors in workplace safety cases. The program is funded by the DIR and involves a team of prosecutors employed by the California District Attorneys Association.

Prosecutors Designated

After reviewing the DIR report, O’Sullivan designated CDAA prosecutors Gale Filter, Kyle Hedum, Anthony Patchett, and Denise Mejlszenkier as special deputies. Patchett retired from the Los Angeles District Attorney’s Office in 1996 as assistant head deputy of the unit that prosecutes workplace safety crimes, and ran for district attorney in 2004.

The four filed their oaths of office with the Sierra Superior Court clerk. But O’Sullivan did not file the necessary paperwork attesting to their appointments.

The prosecutors presented their case to the grand jury, which indicted Miller and Original Sixteen to One Mine, Inc. for manslaughter and violence of an occupational safety standard, resulting in death.

Sierra Superior Court Judge Stanley C. Young dismissed the indictment, ruling that the alleged safety violation did not cause Fussell’s death. District Attorney Larry Allen, who by then had succeeded O’Sullivan, declined to further pursue the case, saying he doubted gross negligence could be proven.

Miller and the corporation then sued the prosecutors, claiming they acted without lawful authority, wrongfully misled the grand jury by concealing exculpatory evidence, and knowingly prosecuted without probable cause in order to gain notoriety and destroy the mine’s business.

Anti-SLAPP Motion

The defendants filed an anti-SLAPP motion, arguing that prosecution constitutes constitutionally protected activity and that the plaintiffs could not prevail because all of their claims were barred by prosecutorial immunity and/or the litigation privilege.

Young denied the motion, holding that because they were not appointed in the manner required by law, the prosecutors’ actions constituted “illegal activity” that rendered the anti-SLAPP law inapplicable and also raised questions as to whether they were immune as a matter of law.

The trial judge was incorrect, Presiding Justice Arthur Scotland wrote for the Court of Appeal, saying the defendants are entitled to have the complaint stricken and to seek attorney fees.

Contrary to the trial judge’s reasoning, Scotland said, the “illegal activity” exception to the anti-SLAPP law does not apply merely because the district attorney failed to file appointment paperwork.

Prior Court of Appeal decisions, the jurist said, make clear that the exception applies to such willful misconduct as an attorney’s mailing of an extortion letter on behalf of a client or an animal rights’ groups violent protests, which a plaintiff was trying to stop by seeking an injunction.

Scotland went on to say that the defendants were entitled to absolute immunity because there was no question that they were acting as de facto prosecutors.

He cited declarations establishing that all four prosecutors were sworn by the clerk at the specific direction of O’Sullivan or her secretary, and that Mejlszenkier, who worked out of O’Sullivan’s office during the prosecution, carried a county identification card that was issued to her at the district attorney’s request.

  Besides, the presiding justice wrote, Miller had effectively recognized the prosecutors’ de facto status when he wrote to O’Sullivan urging her to “address the injustices and possible illegalities perpetrated by” the prosecutors, and to “immediately revoke” their authority because they were violating his rights “with your direct approval.”

  O’Sullivan, Scotland noted, eventually responded by informing Miller that she was “not the prosecutor of record” and that his correspondence was “forwarded to the prosecutor, Denise Mejlszenkier, who is handling this case.” 

  A declaration in which Miller alleged that O’Sullivan told him that she did not want to prosecute the case but that CDAA and the prosecutors had “forced their way into Sierra County” should not have been considered, the presiding justice wrote, because the statement was inadmissible hearsay.

  Scotland also rejected the contention that de facto prosecutors do not enjoy absolute immunity.

  Prosecutorial immunity is necessary, he wrote, so that prosecutors can act “with courage and independence” in pursuing cases that might not result in conviction. Granting absolute immunity, he said, represents a policy judgment that sparing them from the constant fear of lawsuits outweighs the risk that “an unscrupulous prosecutor’s misconduct goes unpunished in terms of civil liability.”

  That reasoning, Scotland added, applies to both de facto and de jure prosecutors. A 1936 law review article, cited by Miller and arguing to the contrary, is “based on antiquated 19th century cases, from other jurisdictions, that do not have binding value as precedent.”

  More recent out-of-state cases, the presiding justice pointed out, have extended immunity to de facto prosecutors, police officers, and judges.

  “Defendants, and the Attorney General of California as amicus curiae, persuasively assert—and we agree—that public policy requires that a de facto deputy district attorney operating under a colorable claim of authority must be afforded the same absolute immunity as provided to a de jure officer,” Scotland declared.

  The case is Miller v. Filter, 07 S.O.S. 2284.


Copyright 2007, Metropolitan News Company