FSM SUPREME COURT
TRIAL DIVISION
Cite as Liwi v. Finn,
5 FSM Intrm. 398 (Pon. 1992)

[5 FSM Intrm. 398]

KASIANO LIWI,
Plaintiff,

v.

MIKE FINN, et al.,
Defendants,

and

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

FSM CIV. 1992-030

OPINION
 
Before Arthur Ngiraklsong
Designated Justice
Argued:  May 19, 1992
Decided:  December 3, 1992

APPEARANCES:
For the Plaintiff:                      Edgar Edwards
                                                 Jano & Associates
                                                 Kolonia, Pohnpei  FM 96941

For the Defendants:               Daniel Hall, Esq.
(Finn & Juergens)                  Office of the FSM Attorney General  
                                                 P.O. Box PS-105
                                                 Palikir, Pohnpei  FM 96941
 
[5 FSM Intrm. 399]

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

For Intervenor/Defendant:     Alan Burdick, Esq.
                                                 222 Merchant St., 2nd Floor
                                                 Honolulu, Hawaii 96813

*    *    *    *

HEADNOTES
Courts - Judges; Torts - Immunity
     Judges and justices of the FSM are protected by the cloak of absolute immunity for judicial functions performed, unless the functions were performed in the complete absence of jurisdiction. Issuance of a search warrant is within the jurisdiction of FSM courts.  Therefore it is a judicial act to which immunity attaches. Liwi v. Finn, 5 FSM Intrm. 398, 400-01 (Pon. 1992).

Public Officers and Employees; Torts - Immunity
     Prosecutors are absolutely immune from prosecution for their actions which are connected to their role in judicial proceedings, but do not enjoy absolute immunity from prosecution for their role as an administrative or investigative officer.  Therefore prosecutors are absolutely immune for involvement in judicial proceedings to obtain search warrant, but not for participation in and giving police advice regarding the execution of a search warrant. Liwi v. Finn, 5 FSM Intrm. 398, 401 (Pon. 1992).
*    *    *    *

COURT'S OPINION
ARTHUR NGIRAKLSONG, Designated Justice:
     On February 11, 1992, plaintiff filed her complaint alleging three causes of action arising our 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 April 7, 1992, defendants Juergens and Finn 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).1  Juergens and Finn allege that the

[5 FSM Intrm. 400]

complaint against them is precluded by the doctrine of prosecutorial immunity and therefore the complaint must be dismissed against them.

     On April 10, 1992, Judge King filed an identical motion alleging that the entire action against him is precluded by the doctrine of absolute judicial immunity and the complaint must therefore be dismissed.

     Hearing on the motions was held on May 18, 1992, with Edgar Edwards appearing for plaintiff, Barrie Michelsen appearing for Judge King, Daniel Hall, Esq. appearing for defendants Juergens and Finn, and Alan Burdick, Esq. appearing for Intervenor.

ANALYSIS
     The motions before the court raise issues that are identical to those raised by Judge King, Juergens and Finn in motions to dismiss filed in Jano v. King, 5 FSM Intrm. 388 (Pon. 1992), which are argued immediately prior to the motions at bar. The order of the court dated December 3, 1992, analyzes at length the scope of the doctrines of judicial and prosecutorial immunity and their application in the FSM, and that analysis is incorporated herein.

A.  Motion to Dismiss filed by Judge King
     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 the functions were performed in the complete absence of jurisdiction.  Jano v. King, 5 FSM Intrm. 388, 391 (Pon. 1992) and cases cited therein.

     Judge King's issuance of the search warrant herein was within the court's jurisdiction pursuant to article XI of the Constitution and 12 F.S.M.C. 303.  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.

     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.  Jano v. King, 5 FSM Intrm. at 392 and cases cited therein; Stump v. Sparkman, 435 U.S. 349, 362, 98 S. Ct. 1099, 1107, 55 L. Ed. 2d 331, 342 (1987).  "[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.

     The only allegations in the complaint relating to Judge King arise out his issuance of a search warrant.  The complaint contains no specific allegations that Judge King issued the warrant in complete absence of jurisdiction, that he engaged in some conduct that is a nonjudicial function,

[5 FSM Intrm. 401]

or that he participated in the allegedly unlawful search.  Taking all of 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 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.

B.  Motion to Dismiss filed by Juergens and Finn
     Prosecutors are absolutely immune from prosecution for their actions which are connected to their role in judicial proceedings, including the request for and appearance and presentation of evidence at hearings related to obtaining search warrants. Jano v. King, 5 FSM Intrm. 388, 393-96 (Pon. 1992) and cases cited therein; Burns v. Reed, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991); Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976).

     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.  Jano, 5 FSM Intrm. at 396; Burns, 111 S. Ct. at 1943, 114 L. Ed. 2d at 563-64.

     Pursuant to the doctrine of prosecutorial immunity as set forth in these authorities, the motion to dismiss filed by defendants Juergens and Finn is granted in part, and denied in part as follows:

Count I makes no specific allegations regarding Juergens.  The motion to dismiss Count I is therefore granted as to him and the same is dismissed. This Count does however set forth specific allegations arising out of the execution of the search warrant by Finn for which absolute immunity does not attach.  It therefore does not appear to a certainty that no relief can be granted under any state of facts which could be proven in support of the allegations against Finn, and the motion as to this Count is denied as to him;

Count II makes specific allegations against Juergens and Finn arising out of the execution of the warrant for which absolute immunity does not attach.  The motion is therefore denied as to both Juergens and Finn for this Count;

Count III sets forth allegations relating only to the issuance of the search warrant and the probable cause hearing related to that warrant. Prosecutors enjoy absolute immunity for actions taken in connection with their role in judicial proceedings.  It therefore appears to a certainty that no relief can be granted to plaintiff under any state of facts which could be proven in support of this count.  The motion of Juergens and Finn is granted as to Count III and the same is dismissed.

CONCLUSION
     Defendant Judge King's motion is granted and the complaint is dismissed as to him for failure to state a claim upon which relief can be granted.

[5 FSM Intrm. 402]

     The motion of defendants Juergens and Finn is granted in part and denied in part: Count I and III are dismissed as to Juergens, and Count III is dismissed as to Finn for failure to state claim upon which relief can be granted.

*    *    *    *
 
Footnote:
 
1.  The motion to dismiss was also filed on behalf of Kehder Loni, who is apparently a policeman.  It does not appear to the court that Loni was named as a party in the complaint, and in fact, there are no specific allegations related to him.  The court can only surmise that Juergens and Finn elected to treat him as a party because paragraphs 7 and 12 of the complaint contain allegations concerning "FSM police."  These allegations, with nothing more, do not make Loni a party and consequently the court makes no determination of the motion as to him.
                                                                                                                                                                                                                                                                                                           
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