William Baez appeals from a summary judgment of the United States District Court for the Northern District of New York (McCurn, J.) dismissing his section 1983 action against the District Attorney of Onondaga County on the ground of absolute privilege. Onondaga County's appeal from Judge McCurn's order denying its motion for summary judgment is accepted under pendent jurisdiction. The grant of summary judgment is affirmed. The denial of the County's motion for summary judgment is reversed, and the matter is remanded to the district court with instructions to dismiss as to the County.
Van Graafeiland, Newman and Winter, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
William Baez appeals from a summary judgment of the United States District Court for the Northern District of New York (McCurn, J.) which dismissed Baez's section 1983 action against Richard A. Hennessy, District Attorney of Onondaga County, on the ground of absolute privilege. Onondaga County appeals from the district court's order denying its motion for summary judgment. We affirm the dismissal of the complaint as to Hennessy but reverse the order denying dismissal as to the County.
On June 20, 1984, Baez was arrested and charged with burglary, assault and sodomy. Several days later, his case was presented to an Onondaga County grand jury without any preliminary hearing having been held and without Baez having been given an opportunity to appear and testify. The grand jury voted to indict. Because of the denial of Baez's state law right to appear, see N.Y. Crim. Proc. Law § 190.50(5), the indictment was dismissed, and the matter was presented to a second grand jury. This jury, being more fully apprised of the facts, voted not to indict.
Unfortunately, the assistant district attorney in charge of the presentation to the second grand jury misread the jury's voting sheet and prepared an indictment in the belief that the vote had been to indict. The indictment thus prepared was signed by both the grand jury foreman and District Attorney Hennessy, and was filed by the assistant district attorney with the court. At Baez's arraignment, he again pleaded not guilty and was released on his previously set bail. Several weeks later, the mistake was discovered, and the second indictment was dismissed. This action followed.*fn1
Following the grant of summary judgment in favor of Hennessy, the district court granted Baez's Rule 54(b) motion for entry of a final judgment in Hennessy's favor, thus giving this Court jurisdiction to hear Baez's appeal. Since the issues in the County's appeal are closely allied to those in Baez's, we exercised pendent appellate jurisdiction to consider both appeals at the same time. See United States v. Persico, 774 F.2d 30, 33 n. 2 (2d Cir. 1985).
In Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd, 275 U.S. 503, 72 L. Ed. 395, 48 S. Ct. 155 (1927), this Court had an opportunity for the first time to pass upon the liability of a prosecutor for acts, assertedly malicious and willful, done in the course of his official duties. Judge Rogers, writing for the Court, reviewed related precedents involving judges and jurors going back to the English common law, and concluded that the prosecutor, as a quasi-judicial officer, was absolutely immune from liability. Id. at 406-07. In the Supreme Court's per curiam opinion of affirmance, it cited Alzua v. Johnson, 231 U.S. 106, 58 L. Ed. 142, 34 S. Ct. 27 (1913), as authoritative precedent. In Alzua, the plaintiff, a Philippine Islands litigant, alleged among other things that, after a judgment had been entered in his favor in the trial court and affirmed by the Philippine Islands Supreme Court, with opinion to follow, the defendant, a judge of the Supreme Court, "in vacation" and without consulting the other judges, changed the judgment of affirmance to one of reversal. The United States Supreme Court, assuming the allegations to be true because dismissal was on demurrer, nonetheless held that the defendant was entitled to absolute judicial immunity. Id. at 111, 12.
In Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), the Supreme Court was asked to consider whether the doctrine of absolute prosecutorial immunity was applicable in section 1983 actions. Following somewhat the same historical path this Court trod in Yaselli v. Goff, supra, the Supreme Court arrived at the same result, holding that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983." Id. at 431.
It is significant that both Judge Rogers who wrote Yaselli (12 F.2d at 404) and Justice Powell who wrote Imbler (424 U.S. at 421-22) cited Griffith v. Slinkard, 146 Ind. 117, 44 N.E. 1001 (1896), a case very similar to the instant one. In Griffith, the complaint charged that a prosecutor maliciously added the plaintiff's name to a grand jury true bill after the jury had voted not to indict the plaintiff. Justice Powell stated that "the Griffith view on prosecutorial immunity became the clear majority rule on the issue." 424 U.S. at 422. This is the rule that the district court applied in the instant case. Since we agree with the district court that the prosecutor was acting within the course of his official duties in the preparation and presentment of the indictment, we agree that he was absolutely immune from liability.
Section 1.20(16) of New York's Criminal Procedure Law (CPL) provides that a "criminal action . . . commences with the filing of an accusatory instrument against a defendant in a criminal court . . . ." In felony cases, the accusatory instrument is the indictment by a grand jury. N.Y. Const. art. I, § 6; CPL §§ 1.20(3), 200.10. The district attorney and the court are the legal advisers of the grand jury. CPL § 190.25(6). In his capacity as legal adviser, the district attorney assists in the preparation and filing of the grand jury's indictment, and he is directed to sign the completed indictment before it is filed. CPL § 200.50(9). When the precursor to this section, former Code of Criminal Procedure § 276, was enacted, it provided that the indictment "should" be signed by the district attorney. Laws of 1882, ch. 360. Section 200.50(9), enacted in 1971, provides that the indictment "must" contain the signature of the district attorney.
Clearly, when Hennessy signed the indictment in the instant case, he was performing a function normally performed by a district attorney, see Stump v. Sparkman, 435 U.S. 349, 362, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978), pursuant to authority specifically copferred upon him by statute, see United States v. Birdsall, 233 U.S. 223, 235, 58 L. Ed. 930, 34 S. Ct. 512 (1914). The act was quasi-judicial in nature. See Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987) (prosecutor entitled to absolute immunity for filing information charging any crime within his jurisdiction to prosecute). The district court was correct in holding that Hennessy was entitled to absolute immunity. Daloia v. Rose, 849 F.2d 74 at 3782 (2d Cir. 1988); Barr v. Abrams, supra; Barrett v. United States, 798 F.2d 565, 571-72 (2d Cir. 1986); Taylor v. Kavanagh, 640 F.2d 450 (2d Cir. 1981); Schanbarger v. Kellogg, 35 A.D.2d 2d 902 (1970) (mem.), motion for leave to appeal denied, 29 N.Y.2d 485 (1971), cert. denied, 405 U.S. 919 (1972); Brenner v. County of Rockland, 92 Misc. 2d 833, 837-38, 401 N.Y.S.2d 434 (1978), aff'd, 67 A.D.2d 901, 413 N.Y.S.2d 185 (1979).
THE LIABILITY OF THE COUNTY
Relying on Owen v. City of Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980), a case involving qualified immunity, the district court held that Hennessy's absolute immunity defense was not available to the County. In dictum at least, the Supreme Court would agree. See Kentucky v. Graham, 473 U.S. 159, 167, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). But see In re Scott County Master Docket, 672 F. Supp. 1152, 1187-90 (D. Minn. 1987) (dictum); Armstead v. Town of Harrison, 579 F. Supp. 777, 782-83 (S.D.N.Y. 1984) (alternative holding); Whelehan v. County of Monroe, 558 F. Supp. 1093, 1104-08 (W.D.N.Y. 1983) (dictum). The district court went on to hold that "key questions of material fact" prevented summary disposition of the basic question of County liability. We believe, however, that as a matter of law the County is not liable for Hennessy's asserted wrongdoing. State law determines whether a particular official has the requisite policymaking authority that can render a governmental unit liable for unconstitutional actions taken in pursuance of that policy, City of St. Louis v. Praprotnik, 485 U.S. 112, 56 ...