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Federal Appeals Court Holds “Prosecutorial Immunity” Not Available for Affidavit


1. Domina Law Group pc llo's client, a successful farmer and respected community supporter, volunteered to serve as the head of his county’s newly formed, first ever planning commission. The planning commission’s role is to advise the elected county board of commissioners about zoning and land use matters.

2. The newly formed organization elected the farmer as its chairman, and convened its first meeting jointly with the county board. The first item of business: A controversy concentrated livestock feedlot building permit.

3. Newly appointed planning commissioners, as well as elected county commissioners, saw the building permit application as simple, though it was the first to be presented under the county’s zoning law. The building permit requested was designed to allow updating and improvement, but not expansion, of existing facilities. But, opponents of livestock feeding in the area did not see the matter so clearly. They forcefully opposed the building permit application.

4. County commissioners learned, through “courthouse talk” that the local prosecuting attorney was strongly aligned with the anti-livestock forces; his friends lined up against the feed yard. Rumors surfaced that the local prosecutor was so focused in his opposition that he was considering prosecution against those supporting the permit. As a result, the planning commission chose not to finalize its meeting minutes, but acted to have them reviewed by the prosecutor, thinking his approval would end the subject.

5. In a cascading series of events, a livestock feeding opponent filed a mandamus suit, contending the planning commission was duty-bound to complete its minutes. In that suit, a special attorney, appointed to represent the planning commission, drafted a short, simple affidavit reciting the planning commission’s intention that the minutes be reviewed by the State’s Attorney. The affidavit said the minutes had been so submitted, as planning commissioners believed was the case.

6. But, the prosecutor disagreed, contending minutes had not been submitted to him. He declared the affidavit to be “false”, and filed two counts of felony perjury against the planning commission chairman. After doing so, the prosecutor declared his inability to proceed with the case because he was required to function as a material witness. As matters turned out, the prosecutor was the only witness to his version of the facts. All county commissioners and all planning commissioners took an opposing position.

7. When the prosecutor asked the state’s Attorney General to undertake the case, the Attorney General declined. The circuit judge declined to proceed with the case, and the prosecutor dismissed it. But, the day after the dismissal, the prosecutor filed his own affidavit in the closed criminal case, purporting to establish “probable cause” for the prosecution.

8. As all this unfolded, the farmer was a candidate for election to the county board of commissioners–the body that had appointed the planning commission. The state’s Attorney’s actions appeared designed to impact the election. The farmer, initially fourth in a field of seven, losing the three–two–B–elected general election by a narrow margin. Then, the prosecutor who had previously initiated and dismissed criminal proceedings, and filed the belated probable cause affidavit, started the process again. This time, he followed a state procedure allowing a local prosecutor to request that the circuit court appoint a special prosecutor to investigate a matter in which he was disqualified. The statute left the circuit judge with little choice.

9. A special prosecutor was appointed, a grand jury convened, and a single witness–the disqualified prosecutor–testified. Indictments were returned–again on two felony charges. A trial was held. The farmer was acquitted. A civil rights case followed in which the farmer contended the prosecutor had violated his Fourth, Fifth and Fourteenth Amendment constitutional rights.

10. The United States Court of Appeals for the Eighth Circuit ruled the prosecutor was entitled to absolute immunity in connection with the filing of the criminal complaint in the dismissed, first case as the filing of the criminal complaint is a prosecutorial act. But, prosecutorial immunity was not available in connection with the prosecutor’s preparation and submission of the affidavit.

11. Overall, the remarkable case, which returns to the trial court for further proceedings, shows the remarkable importance of local elections, and the profound significance of objective, sincere, selfless and disinterested decisions by those holding public office. David Domina, the farmer’s attorney, said, “The power of accusation is a dangerous and awesome power. It must be wielded with extreme care, and its abuse can cause great harm”.

September, 2006

Domina Law Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.

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