R. L. Newton, Individually and in his Official Capacity as an Officer with the Arkansas State Police et al. v. Louis A. Etoch

R.L. NEWTON, Individually and In His Official
Capacity as an Officer with the Arkansas
State Police; and T. David Carruth,
Individually and In His Official Capacity as
Deputy Prosecuting Attorney for the First
Judicial District, Monroe County v. 
Louis A. ETOCH

97-325                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 19, 1998


1.   Appeal & error -- interlocutory appeal may be taken from order denying
     motion to dismiss -- rationale. -- An appeal may be taken from an
     order denying a motion to dismiss under Ark. R. App. P. Civ.
     2(a)(2), based on the movant's assertion that he is immune
     from suit; the rationale justifying an interlocutory appeal is
     that the right to immunity from suit is effectively lost if
     the case is permitted to go to trial.

2.   Appeal & error -- denial of motion to dismiss on immunity grounds was
     appealable order. -- Where appellants contended that they were
     immune from suit, as opposed to being immune solely from
     liability, the denial of the motion to dismiss on immunity
     grounds was an appealable order.

3.   Appeal & error -- adverse ruling on Ark. R. Civ. P. 12 motion -- standard
     of review. -- When a party appeals an adverse ruling on a motion
     brought under Ark. R. Civ. P. 12, the supreme court treats the
     facts alleged in the complaint as true and views them in the
     light most favorable to the party who filed the complaint.

4.   Constitutional law -- sovereign immunity -- subject-matter jurisdiction
     distinguished. -- Sovereign immunity is jurisdictional immunity
     from suit, though the immunity has not been couched in terms
     of subject-matter jurisdiction; one reason for this
     distinction is that sovereign immunity may be waived by the
     State, while subject-matter jurisdiction can never be waived.

5.   Constitutional law -- sovereign immunity -- doctrine set forth. --
     Article 5, Section 20, of the Arkansas Constitution provides
     that the State "shall never be made a defendant in any of her
     courts."  

6.   Constitutional law -- sovereign immunity -- test for whether suit is one
     brought against State. -- While a suit against State officials or
     agencies is not necessarily a suit against the State, the
     general rule that a State cannot be sued without its consent
     cannot be evaded by making an action nominally one against the
     servants or agents of a State when the real claim is against
     the State itself, and it is the party vitally interested;
     accordingly, it is well settled as a general proposition that
     where a suit is brought against an officer or agency with
     relation to some matter in which defendant represents the
     state in action and liability, and the State, while not a
     party to the record, is the real party against which relief is
     sought so that a judgment for plaintiff, although nominally
     against the named defendant as an individual or entity
     distinct from the State, will operate to control the action of
     the state or subject it to liability, the suit is in effect
     one against the State and cannot be maintained without its
     consent.

7.   Constitutional law -- sovereign immunity -- tapping treasury for damages
     will render State defendant. -- The end result of tapping the
     State's treasury for payment of damages will render the State
     a defendant.

8.   Constitutional law -- sovereign immunity -- statutory obligation to pay
     damages renders State real party in interest. -- Under Ark. Code Ann.
      21-9-203(a) (Repl. 1996), the General Assembly has mandated
     the State to pay actual damages based on judgments obtained
     against its officers and employees, so long as the action by
     the officer or employee was "without malice and in good faith
     within the course and scope of his employment and in the
     performance of his official duties"; thus, to the extent the
     State will be obligated to pay damages under this provision,
     it is the real party in interest, and sovereign immunity comes
     into play.

9.   Constitutional law -- sovereign immunity -- statutory waiver. -- Under
     Ark. Code Ann.  19-10-305(a) (Repl. 1994), an officer or
     employee of the State is immune from an award of damages if
     that officer or employee acted without malice and within the
     scope of his employment; conversely, an officer or employee
     who acts maliciously or outside the scope of his employment is
     not protected by section 19-10-305(a); by the law's enactment,
     the General Assembly clearly waived the State's sovereign
     immunity for certain actions taken by its officers and
     employees.

10.  Constitutional law -- sovereign immunity -- 42 U.S.C.  1983 action --
     suits against persons in official capacities do not qualify as suits
     against persons. -- The United States Supreme Court has held that
     states are not "persons," the status required for 42 U.S.C. 
     1983 lawsuits, and that a suit against a state official in his
     or her official capacity is not a suit against that person but
     a suit against that official's office; thus, suits against
     persons in their official capacities do not qualify as suits
     against persons for  1983 purposes.

11.  Constitutional law -- sovereign immunity -- 42 U.S.C.  1983 action --
     claim of state immunity must yield. -- A 42 U.S.C.  1983 suit is
     one brought pursuant to an act of Congress for a deprivation
     of civil rights against persons operating under color of state
     law; it establishes a federal cause of action to be enforced
     in either federal or state courts; as such, it is the supreme
     law of the land, and any state claim of immunity must yield to
     it.

12.  Constitutional law -- sovereign immunity -- appellants not immune from
     federal civil-rights or state tort claims. -- The supreme court held
     that appellants were not immune under the doctrine of
     sovereign immunity from either appellee's 42 U.S.C.  1983
     cause of action or his state-law tort claims.

13.  Torts -- prosecutorial immunity -- qualified and absolute distinguished. -
     - The United States Supreme Court has distinguished qualified
     immunity and absolute immunity by stating that qualified
     immunity depends on the circumstances and the prosecutor's
     motives, as established by the evidence; absolute immunity, on
     the other hand, defeats a suit at the outset so long as the
     official's actions were within the scope of his or her duties;
     malicious conduct will still be protected by absolute
     immunity; malice, however, can defeat a claim of qualified
     immunity.

14.  Torts -- prosecutorial immunity -- decision to file charges protected by
     absolute immunity. -- The decision of a prosecutor to file
     criminal charges is within the set of core functions that are
     protected by absolute immunity; this is so even if the
     prosecutor makes that decision in a consciously malicious
     manner, vindictively, without adequate investigation, or in
     excess of his jurisdiction.

15.  Torts -- prosecutorial immunity -- relevant question. -- With respect
     to prosecutorial immunity, the relevant question is whether
     the wrong complained of was committed by the prosecutor within
     the scope of his official duties.

16.  Torts -- prosecutorial immunity -- absolute immunity not available for
     appellee's allegations relating to materially false affidavit and
     slanderous statements. -- A line of United States Supreme Court
     cases appeared to foreclose absolute immunity for appellant
     prosecutor for appellee's allegations relating to (1) his
     knowing direction and supervision of appellant police officer
     in drafting a materially false affidavit and his conspiracy
     with the officer to accomplish that end outside of his
     jurisdiction as a prosecutor, and (2) his slanderous
     statements made to the press and others concerning the arrest.

17.  Torts -- prosecutorial immunity -- appellant prosecutor failed to meet
     absolute-immunity burden on all causes of action. -- The United States
     Supreme Court has employed a presumption that qualified
     immunity initially applies to the conduct of a prosecutor,
     with the burden placed on that prosecutor seeking absolute
     immunity to establish that it is justified for the particular
     function in question; appellant prosecutor failed to provide
     a rationale for why absolute immunity should have applied to
     appellee's allegations, and, thus, he failed to meet his
     burden on all causes of action.

18.  Torts -- prosecutorial immunity -- appellant prosecutor did not have
     absolute immunity for conduct alleged in appellee's complaint. --
     Ordinarily, the supreme court would deem a prosecutor to be
     immune absolutely from claims of malicious prosecution or
     abuse of process; where appellant prosecutor's alleged conduct
     fell outside traditional prosecutorial functions and partly
     outside his jurisdiction as a prosecutor, the court concluded
     that appellant did not have absolute immunity for the conduct
     alleged in appellee's complaint, noting, however, that
     absolute immunity would attach should it subsequently develop
     that he was engaged in conduct intimately connected to his
     role as prosecutor.


     Appeal from Phillips Circuit Court; L. Ashley Higgins, Judge;
affirmed.
     Winston Bryant, Att'y Gen., by:  Rick D. Hogan, Deputy Att'y
Gen., for appellants.
     Charles E. Halbert, Jr., and Ryals & Soffer, P.C., by: Stephen
Ryals, for appellee.
     Robert L. Brown, Justice.
     This is an interlocutory appeal from a denial of a motion to
dismiss filed by appellants R.L. Newton and T. David Carruth on
immunity grounds.  Appellee Louis A. Etoch, an attorney licensed to
practice in Arkansas since 1989, filed a complaint in Phillips
County Circuit Court against Newton, individually and in his
official capacity as an officer with the Arkansas State Police, and
T. David Carruth, individually and in his official capacity as
deputy prosecuting attorney for the First Judicial District, Monroe
County.  In his complaint, Etoch alleged:
     Newton either acting under the direction and supervision
     of Carruth or conspiring with Carruth, drafted a
     materially false affidavit for warrant of arrest alleging
     therein that Etoch had given conflicting incriminating
     statements to Newton with regards to two automobiles
     owned by an alleged criminal defendant.  The material
     statements in the affidavit were in accurate (sic),
     incomplete, and drafted in an effort to mislead the
     magistrate.
He further asserted that "Newton knew the allegations to be
materially false [and] inaccurate, and Newton intentionally misled
the Municipal Court Judge for the City of Hazen[.]"  This resulted
in the Municipal Judge's issuing an arrest warrant for Etoch.  He
again alleged that this was done at Carruth's "urging, direction
and supervision" or "pursuant to the conspiracy."
     Etoch further asserted that on June 22, 1995, as a result of
that arrest warrant, while appearing on behalf of numerous clients
in West Helena Municipal Court, Phillips County, he was arrested,
handcuffed, and shackled by Newton without probable cause in a
place, time, and manner "calculated and effectuated in an attempt
to purposely embarrass, humiliate, and damage Etoch's business and
personal reputation."  He was then transported by car from West
Helena to Hazen in Prairie County.
     Upon his arrival in handcuffs and shackles at Hazen Municipal
Court, Etoch alleged that he was met by a large number of people,
including members of the media and Carruth, and added:
     Carruth, acting alone or with others, completely and
     totally outside his jurisdiction and without any
     authority under the law, orchestrated the public display
     of Plaintiff in custody, in handcuffs and shackles, as he
     appeared in court and alerted [media] sources to assure
     that the arrival and presentment of Etoch in court in
     Hazen be given maximum coverage and exposure, all for the
     malicious purpose of causing Plaintiff humiliation,
     embarrassment, harm and damage to his personal and
     professional reputation and to detrimentally effect (sic)
     his law practice.
According to the complaint, Carruth also made statements to the
media at that time that Carruth knew or reasonably should have
known were false, all for the purpose of injuring him.
     In addition, Etoch alleged in the complaint that Newton and
Carruth undertook their activities with the expectation that Etoch
would never be prosecuted and adds that a criminal information was
never filed prior to the expiration of the speedy-trial period
under Ark. R. Crim. P. 28.  Etoch asserted causes of action against
Newton and Carruth for a violation of his Fourth Amendment rights
under 42 U.S.C.  1983 and for the state-law torts of false
imprisonment, malicious prosecution, abuse of process, and outrage. 
Etoch also sought damages against Carruth for slanderous statements
made to members of the media and to others in connection with his
arrest.   Newton and Carruth moved to dismiss Etoch's complaint for
lack of subject-matter and personal jurisdiction pursuant to Ark.
R. Civ. P. 12(b)(1) and (2).  They stated in their motion that the
trial court lacked subject-matter jurisdiction due to sovereign
immunity under Ark. Const. art. 5,  20, and that personal
jurisdiction was absent due to the immunity provisions for public
employees and officials set out in Ark. Code Ann.  19-10-305
(Repl. 1994).  They further asked to dismiss the false imprisonment
and slander counts due to the one-year statute of limitation found
at Ark. Code Ann.  16-56-104 (1987).  Carruth asserted generally
that he was not subject to suit due to prosecutorial immunity,
which is absolute.
     After a hearing, the trial court denied the motions to dismiss
and entered an order, which concluded: (1) accepting as true the
allegations in the complaint, the false imprisonment and slander
counts were not time-barred; (2) sovereign immunity did not protect
officers and employees of the state from their malicious actions;
and (3) Carruth was not entitled to absolute prosecutorial immunity
because the complaint alleged that he was acting outside of the
scope of his duties.

                      I. Sovereign Immunity
     On appeal, Newton and Carruth make the same immunity points
argued before the trial court.  We first consider the question,
however, of whether this is an appealable order and answer in the
affirmative.
     This court has held that an appeal may be taken from an order
denying a motion to dismiss under Ark. R. App. P. Civ. 2(a)(2)
based on the movant's assertion that he is immune from suit.  See
Virden v. Roper, 302 Ark. 125, 788 S.W.2d 470 (1990); Robinson v.
Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987).  The rationale
justifying an interlocutory appeal is that the right to immunity
from suit is effectively lost if the case is permitted to go to
trial.  Robinson v. Beaumont, supra.  Because Newton and Carruth
contend that they are immune from suit, as opposed to being immune
solely from liability, the denial of the motion to dismiss on
immunity grounds is an appealable order.  Cf. Jaggers v.
Zolliecoffer, 290 Ark. 250, 718 S.W.2d 441 (1986) (involving the
denial of summary judgment motions premised on statutory immunity
from liability).
     When a party appeals an adverse ruling on a motion brought
under Ark. R. Civ. P. 12, this court treats the facts alleged in
the complaint as true and views them in the light most favorable to
the party who filed the complaint.  Brown v. Tucker, 330 Ark. 435,
954 S.W.2d 262 (1997); Van Dyke v. Glover, 326 Ark. 736, 934 S.W.2d 204 (1996); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991). 
Newton and Carruth contend that, even under this standard of
review, they are entitled to immunity.
     We turn then to the issue of sovereign immunity.  Sovereign
immunity is jurisdictional immunity from suit, although we have not
couched the immunity in terms of subject-matter jurisdiction.  See
Cross v. Arkansas Livestock & Poultry Comm'n, 328 Ark. 255, 943 S.W.2d 230 (1997); Department of Human Servs. v. Crunkleton, 303
Ark. 21, 791 S.W.2d 704 (1990).  One reason for this distinction is
that sovereign immunity may be waived by the State, where subject-
matter jurisdiction can never be waived.  See, e.g., State v.
Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996). 
     Article 5, Section 20, of the Arkansas Constitution reads:
"The State of Arkansas shall never be made a defendant in any of
her courts."  The first question presented, then, is whether the
State of Arkansas is the defendant in the instant case.  Clearly,
the State has not been named as a party, but our inquiry does not
stop there.
     We established the test for whether a suit is one brought
against the State in Page v. McKinley, 196 Ark. 331, 336-37, 118 S.W.2d 235, 238 (1938):
     While a suit against state officials or agencies is not
     necessarily a suit against the state, the general rule
     that a state cannot be sued without its consent cannot be
     evaded by making an action nominally one against the
     servants or agents of a state when the real claim is
     against the state itself, and it is the party vitally
     interested.  Accordingly, it is well settled, as a
     general proposition, that, where a suit is brought
     against an officer or agency with relation to some matter
     in which defendant represents the state in action and
     liability, and the state, while not a party to the
     record, is the real party against which relief is sought
     so that a judgment for plaintiff, although nominally
     against the named defendant as an individual or entity
     distinct from the state, will operate to control the
     action of the state or subject it to liability, the suit
     is in effect one against the state and cannot be
     maintained without its consent[.]
Id.  See also Cross v. Arkansas Livestock & Poultry Comm'n, supra;
Fireman's Ins. Co. v. Arkansas State Claims Comm'n, 301 Ark. 451,
784 S.W.2d 771 (1990), cert. denied, 498 U.S. 824 (1990); Beaulieu
v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986).  We have further held
that the end result of tapping the State's treasury for payment of
damages will render the State a defendant.  State of Arkansas
Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997).
     Tapping the State's treasury may well be the end result when
only employees and officers of the State are parties.  This is so
because the General Assembly has mandated the State to pay actual
damages based on judgments obtained against its officers and
employees, so long as the action by the officer or employee was
"without malice and in good faith within the course and scope of
his employment and in the performance of his official duties." 
Ark. Code Ann.  21-9-203(a) (Repl. 1996).  Thus, to the extent the
State will be obligated to pay damages under this provision, it is
the real party in interest, and sovereign immunity comes into play. 
See Beaulieu v. Gray, supra.  See, e.g., Assaad-Faltas v. Univ. of
Ark. for Medical Sciences, 708 F. Supp. 1026 (E.D. Ark. 1989).
     Our law is clear that in order for Etoch to counter an
assertion of sovereign immunity, he must allege sufficient facts in
his complaint to support the claim of malicious conduct by Newton
and Carruth.  In 1981, the General Assembly enacted law which
provides that an officer or employee of the State is immune from an
award of damages if that officer or employee acted without malice
and within the scope of his employment.  Ark. Code Ann.  19-10-
305(a) (Repl. 1994).  See also Cross v. Arkansas Livestock &
Poultry Comm'n, supra; Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Beaulieu v. Gray, supra.  Conversely, an officer or
employee who acts maliciously or outside the scope of his
employment is not protected by  19-10-305(a).  See Bland v.
Verser, 299 Ark. 490, 774 S.W.2d 124 (1989); Beaulieu v. Gray,
supra.  By its enactment the General Assembly has clearly waived
the State's sovereign immunity for certain actions taken by its
officers and employees.
     Construing the complaint liberally in favor of Etoch, as this
court must do, see Brown v. Tucker, supra, Etoch has alleged a
conspiracy between Newton and Carruth to have him arrested for the
malicious purpose of embarrassing him and damaging his professional
reputation and with knowledge that (1) no probable cause existed;
(2) the allegations contained in the affidavit for arrest were
false; and (3) no prosecution would ensue.  We are convinced that
Etoch's complaint contains sufficient allegations of malicious
conduct to take the conduct outside the protection of  19-10-
305(a) and, accordingly, outside of the bounds of the Arkansas
Constitution because the coffers of the State are not at risk for
malicious conduct.
     There is also the point that Etoch has sued Newton and Carruth
both individually and in their official capacities, which is
relevant for purposes of his  1983 claim.  The United States
Supreme Court has held that states are not "persons," which is the
status required for  1983 lawsuits, and also that a suit against
a state official in his or her official capacity is not a suit
against that person but, rather, is a suit against that official's
office.  Will v. Michigan Dept. of State Police, 491 U.S. 58
(1989).  Thus, suits against persons in their official capacities
do not qualify as suits against persons for  1983 purposes. 
Counsel for Etoch acknowledged at oral argument that it was error
to sue Newton and Carruth in their official capacities for a  1983
violation.  For purposes of this opinion we will treat the two
state officers as if they were sued only as individuals.
     This leaves the  1983 count pending against Newton and
Carruth as individuals.  Newton and Carruth contend they are immune
as individuals because they were acting within the scope of their
duties as state officers.  A  1983 suit is one brought pursuant to
an act of Congress for a deprivation of civil rights against
persons operating under color of state law.  It establishes a
federal cause of action to be enforced in either federal or state
courts.  See Arkansas Writers' Project, Inc. v. Ragland, 293 Ark.
395, 738 S.W.2d 402 (1987); Robinson v. Beaumont, supra; Jaggers v.
Zolliecoffer, supra.  As such, it is the supreme law of the land,
and any state claim of immunity must yield to it.  U.S. Const. art.
6,  2; Howlett v. Rose, 496 U.S. 382 (1990).  Sovereign immunity,
accordingly, is not dispositive of the  1983 claim for this
additional reason.  Hence, the trial court reached the right
conclusion.
     We hold that Newton and Carruth are not immune under the
doctrine of sovereign immunity from the  1983 cause of action or
from the state-law tort claims.

                   II. Prosecutorial Immunity
     Carruth also contends that he is entitled to absolute immunity
as opposed to qualified immunity under our decision of Culpepper v.
Smith, 302 Ark. 558, 572, 792 S.W.2d 293 (1990).  The U.S. Supreme
Court has distinguished qualified immunity and absolute immunity by
stating that qualified immunity depends on the circumstances and
the prosecutor's motives, as established by the evidence.  Imbler
v. Pachtman, 424 U.S. 409 (1976).  Absolute immunity, on the other
hand, defeats a suit at the outset so long as the official's
actions were within the scope of his or her duties.  Id.  Malicious
conduct will still be protected by absolute immunity.  See Imbler,
424 U.S.  at 427.  Malice, however, can defeat a claim of qualified
immunity.
     In Culpepper v. Smith, supra, we relied on Imbler v. Pachtman,
supra, and stated:
          The decision of a prosecutor to file criminal
     charges is within the set of core functions which are
     protected by absolute immunity.  This is so even if the
     prosecutor makes that decision in a consciously malicious
     manner, vindictively, without adequate investigation, or
     in excess of his jurisdiction.
Culpepper, 302 Ark. at 572, 792 S.W.2d  at 300 (citations omitted)
(emphasis added).  This court noted, however, that the relevant
question was whether the wrong complained of was committed by the
prosecutor within the scope of his official duties. Id.  In the
current litigation, Etoch contends that Culpepper is not
controlling because he has alleged that Carruth took actions
outside the scope of his authority under law.  Specifically, Etoch
alleges that Carruth was outside of his judicial district as a
prosecutor when he obtained an arrest warrant against Etoch in
Hazen.
     The U.S. Supreme Court has spoken on this issue in a line of
cases involving  1983 actions.  The State does not discuss these
cases, some of which were cited by Etoch, or attempt to distinguish
them.  In Imbler v. Pachtman, supra, the prosecutor was sued in a
civil suit under  1983 for allegedly using perjured testimony at
the plaintiff's criminal trial and for suppressing material
exculpatory evidence.  The Court held that a prosecutor is immune
from a  1983 suit for damages for activities within the scope of
the prosecutor's duties in "initiating a prosecution and in
presenting the State's case."  Imbler, 424 U.S.  at 431.  The Court
acknowledged that, at common law, courts were virtually unanimous
in holding that prosecutors had "absolute immunity" for actions
undertaken within the scope of their prosecutorial duties.  Id. at
420.  The Court continued by discussing immunity from  1983
actions in conjunction with common law tort immunities and
determined that awarding only qualified immunity in conjunction
with the prosecution of a case would undermine the performance of
prosecutorial duties and subject prosecutors to the "constant dread
of retaliation."  Id. at 428, quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950).  The
Court then cautioned:
          It remains to delineate the boundaries of our
     holding. . . .  We agree with the Court of Appeals that
     [the prosecutor's] activities were intimately associated
     with the judicial phase of the criminal process, and thus
     were functions to which the reasons for absolute immunity
     apply with full force.  We have no occasion to consider
     whether like or similar reasons require immunity for
     those aspects of the prosecutor's responsibility that
     cast him in the role of an administrator or investigative
     officer rather than that of an advocate.
Id. at 430-31 (citations omitted) (emphasis added).  Thus, the
Court in Imbler focused on what function the prosecutor was engaged
in at the time of the alleged wrong, and it drew a distinction
between the prosecutor's role as advocate and the role of an
administrator or investigator.
     In a subsequent decision, the Court adhered to this
"functional approach," and held that a prosecutor was absolutely
immune against liability for participating in a probable-cause
hearing and eliciting false testimony from witnesses during that
hearing.  See Burns v. Reed, 500 U.S. 478 (1991).  The Court
observed that this activity by the prosecutor was "intimately
associated with the judicial phase of the criminal process." 
Burns, 500 U.S.  at 492, quoting Imbler v. Pachtman, 424 U.S.  at
430.  Following the Imbler functional approach, the Court concluded
that the prosecutor's appearance clearly involved his role as the
advocate for the state rather than a role as administrator or
investigator.  The Court went on, however, and held that the
prosecutor only had qualified immunity pertaining to the legal
advice he gave to police officers about putting a criminal suspect
under hypnosis because giving advice to investigative officers was
not intimately connected with the judicial phase of the criminal
process.
     Next, in Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the
Court granted only qualified immunity to prosecutors in the face of
allegations that they had fabricated evidence during the
preliminary investigation of a crime for the purpose of obtaining
an indictment.  The Court held that this conduct by the prosecutor
was not undertaken in a judicial role: "Their mission at that time
was entirely investigative in character.  A prosecutor neither is,
nor should consider himself to be, an advocate before he has
probable cause to have anyone arrested."  Buckley, 509 U.S.  at 274
(citation omitted) (emphasis added).  The Court emphasized that
when a prosecutor performs investigative functions normally
performed by a police officer, it is neither appropriate nor
justifiable that for the same act immunity should absolutely
protect the prosecutor but not the police officer.  The Court in
Buckley also granted only qualified immunity for statements made by
one of the prosecutors to the press.  The Court reasoned that not
only was there no common law immunity for this conduct, but it was
also clear under Imbler's functional approach that these statements
were not intimately tied to the judicial phase of the criminal
process.
     Most recently, the Court in Kalina v. Fletcher, 522 U.S.    
(December 10, 1997), held that a prosecutor was not entitled to
absolute immunity when she vouched under penalty of perjury for the
truth of matters contained in a "Certification for Determination of
Probable Cause," in connection with the issuance of an arrest
warrant.  The Court did, however, afford her absolute immunity for
certain functions undertaken in connection with preparing and
filing the information and the motion for the arrest warrant.  The
Court explained:
     [P]etitioner argues that the execution of the certificate
     was just one incident in a presentation that, viewed as
     a whole, was the work of an advocate and was integral to
     the initiation of the prosecution.  That characterization
     is appropriate for her drafting of the certification, her
     determination that the evidence was sufficiently strong
     to justify a probable-cause finding, her decision to file
     charges, and her presentation of the information and the
     motion to the court.  Each of those matters involved the
     exercise of professional judgment; indeed, even the
     selection of the particular facts to include in the
     certification to provide the evidentiary support for the
     finding of probable cause required the exercise of the
     judgment of the advocate.  But that judgment could not
     affect the truth or falsity of the factual statements
     themselves.  Testifying about facts is the function of
     the witness, not of the lawyer.  No matter how brief or
     succinct it may be, the evidentiary component of an
     application for an arrest warrant is a distinct and
     essential predicate for a finding of probable cause. 
     Even when the person who makes the constitutionally
     required "Oath of affirmation" is a lawyer, the only
     function that she performs in giving sworn testimony is
     that of a witness.  
Kalina, slip op. at 11-12.  Thus, the Court made a clear
distinction between a prosecutor's preparing a probable-cause
affidavit for a complaining witness to sign in connection with an
arrest warrant and criminal information, which is more the role of
the prosecutor as lawyer, and the actual swearing to the
truthfulness of that same affidavit as complaining witness.  The
latter role is more properly that of an investigator or victim.
     To summarize, this line of Supreme Court cases appears to
foreclose absolute immunity for Carruth for Etoch's allegations
relating to (1) his knowing direction and supervision of Newton in
drafting a materially false affidavit and his conspiracy with
Newton to accomplish that end outside of his jurisdiction as a
prosecutor, and (2) his slanderous statements made to the press and
others concerning the arrest.  See Kalina v. Fletcher, supra;
Buckley v. Fitzsimmons, supra.  Whether the latter conduct is
entitled to absolute immunity was expressly decided against
Carruth's position by the Supreme Court in Buckley v. Fitzsimmons,
supra.  As to the former, knowingly directing and supervising false
testimony for an arrest-warrant affidavit appears to be closely
akin to allegations that a prosecutor fabricated evidence during
the preliminary investigation of a crime, which was the issue in
the Buckley case.  The Court held in Buckley that this activity
fell under the investigative, as opposed to the judicial or
advocate, function.  Also, the Court recently held that a
prosecutor does not receive absolute immunity for swearing to false
information in an affidavit for an arrest warrant in Kalina v.
Fletcher, supra.  It logically follows that knowingly directing the
preparation of a materially false affidavit would not pass muster.
     There is one additional point which we emphasize.  The Supreme
Court uses a presumption that qualified immunity initially applies
to the conduct of a prosecutor with the burden placed on that
prosecutor seeking absolute immunity to establish that it is
justified for the particular function in question.  See Burns v.
Reed, 500 U.S.  at 486-87.  Carruth in his brief and in oral
argument provided us with no rationale for why absolute immunity
should apply to Etoch's allegations, and, thus, he failed to meet
his burden on all causes of action.  This is so even while there
are myriad cases on this subject.  See generally Annotation, When
is Prosecutor Entitled to Absolute Immunity from Civil Suit for
Damages under 42 USCS  1983: Post-Imbler Cases, 67 A.L.R.Fed 640
(1984 & Supp. 1997).  Carruth directs our attention only to
Culpepper v. Smith, supra, in support of his contention of absolute
immunity.  That case, though, was decided before the Burns,
Buckley, and Kalina decisions by the Court and is not controlling
on its face.
     Ordinarily, we would deem a prosecutor to be immune absolutely
from claims of malicious prosecution or abuse of process.  Here,
though, the conduct alleged against Carruth falls outside of
traditional prosecutorial functions and, indeed, in part outside of
Carruth's jurisdiction as a prosecutor.  Should it subsequently
develop that Carruth was engaged in conduct intimately connected to
his role as prosecutor in the judicial process, absolute immunity
would attach.  We conclude that Carruth does not have absolute
immunity for the conduct alleged in Etoch's complaint.
     We emphasize what is before this court today.  The sole issue
is one of prosecutorial immunity raised by Carruth as a
jurisdictional matter under Ark. R. Civ. P. 12(b)(1) and 12(b)(2). 
No issue has been raised at this juncture under Ark. R. Civ. P.
12(b)(6) for failure to state a claim upon which relief can be
granted.  And no discovery has occurred which might give rise to
future motions based on the discovered facts.
     Affirmed.