Gabrielle C. Jameson And Kim L. Jameson Wife Of/and

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #023
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 5th day of May, 2023 are as follows:
BY McCallum, J.:
2022-CC-01784 GABRIELLE C. JAMESON AND KIM L. JAMESON WIFE OF/AND
BOBBY A. JAMESON VS. HONORABLE WARREN L.
MONTGOMERY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY
AS THE DISTRICT ATTORNEY OF ST. TAMMANY PARISH, IAIN
DOVER, IN HIS INDIVIDUAL CAPACITY AND UNDERWRITERS AT
LLOYD'S LONDON A/K/A LLOYD'S ILLINOIS, INC. (Parish of St.
Tammany)
REVERSED; EXCEPTION OF NO CAUSE OF ACTION SUSTAINED.
SEE OPINION.
Weimer, C.J., concurs in the result and assigns reasons.
Hughes, J., dissents in part and assigns reasons.
Genovese, J., dissents.

SUPREME COURT OF LOUISIANA
No. 2022-CC-01784
GABRIELLE C. JAMESON AND KIM L. JAMESON WIFE OF/AND
BOBBY A. JAMESON
VS.
HONORABLE WARREN L. MONTGOMERY, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY AS THE DISTRICT ATTORNEY OF ST.
TAMMANY PARISH, IAIN DOVER, IN HIS INDIVIDUAL CAPACITY
AND UNDERWRITERS AT LLOYD’S LONDON A/K/A LLOYD’S
ILLINOIS, INC.
On Supervisory Writ to the 22nd Judicial District Court, Parish of St. Tammany
McCALLUM, J.
We granted certiorari to consider the continuing validity of the doctrine of
absolute prosecutorial immunity, adopted by this Court in Knapper v. Connick ,
1996-0434 (La. 10/15/96), 681 So. 2d 944. This case presents the issue of whether
Louisiana law recognizes a cause of action for claims asserted against an assistant
district attorney (“ ADA”), who, during the plea and sentencing phase of a
prosecution, misrepresents, either directly or by omission, a victim’s preference as
to the sentence to be imposed upon a defendant, and thereafter, attempts to conceal
this alleged misconduct. A secondary question concerns whether a cause of action
can be maintained against the district attorney (“ DA”) who employed the ADA ,
under a theory of vicarious liability or for employment -related claims ( e.g.,
negligence in hiring, training, retaining, guiding, supervising and establishing
certain policies and procedures). Necessarily, if no cause of action exists against the
ADA in this case, there can be no cause of action against the DA under either theory.
Having reviewed the relevant case law and considered the purposes and
policies for which prosecutors are accorded immunity, we reaffirm our holding in
Knapper and further find that, under the circumstances of this case, both the ADA

2

and the DA are entitled to immunity. We thus find that the lower courts erred in
overruling the defendants’ peremptory exception of no cause of action. For the
reasons that follow, we reverse those rulings and sustain the exception of no cause
of action.
FACTS AND PROCEDURAL HISTORY
In 2019, Jeremy Ryan Schake (“Mr. Shacke”) was charged with one count of
felony carnal knowledge of a juvenile, stemming from the allegation that Mr. Schake
coerced his then 16-year-old co-worker, Gabrielle Jameson (“Ms. Jameson”), into
engaging in oral sex. Mr. S chake originally pled not guilty to the charge, but
subsequently withdrew that plea and entered a plea of guilty in June, 2021. The trial
court sentenced Mr. Schake to ten years in prison;1 it suspended the sentence, placed
Mr. Schake on probation , and ordered that he register as a sex offender for fifteen
years.
On March 9, 2022, plaintiffs, Ms. Jameson and her parents, Kim L. Jameson
and Bobby A. Jameson, filed the instant lawsuit against Warren L. Montgomery,
individually and in his capacity as the District Attorney of St. Tammany Parish (“DA
Montgomery”), and Iain Dover, the assistant district attorney who handled Mr.
Schake’s prosecution (“ADA Dover”) (collectively, “defendants”) .2 The petition
alleges misconduct on ADA Dover’s part in connection with Mr. Schake’s
sentencing.
According to the petition , prior to Mr. Schake’s plea, several pre -trial
conferences and plea discussions were held between ADA Dover, Mr. Schake’s
attorney and the trial judge, Judge William H. Burris. During these conferences, Mr.
Schake’s attorney advised that Mr. Schake would plead guilty only in the event that

1 Carnal knowledge of a juvenile carries a maximum sentence of ten years. La. R.S. 14:80 D (1).

2 Also named as a defendant is Certain Underwriter’s at Lloyd’s, London, which provided
insurance coverage to DA Montgomery and ADA Dover.

3

he received probation and served no time in jail. In March, 2021, Judge Burris
instructed ADA Dover to determine pla intiffs’ viewpoint of a proposed plea
agreement allowing Mr. Schake to plead guilty in exchange for a suspended sentence
of ten years. Several discussions ensued between ADA Dover and plaintiffs, who
made clear their desire that Mr. Schake serve one year of his sentence in jail.
According to plaintiffs, rather than relaying their wish to Judge Burris, ADA Dover:
. . . fraudulently communicated to and led Judge Burris to
believe that [plaintiffs] had consented to a sentence of
probation and a suspension of [the] entire ten year
sentence for Schake when, in fact, [plaintiffs and
plaintiffs’] undersigned counsel had clearly, repeatedly,
and consistently advised Dover that [plaintiffs] had
requested a sentence of one year of jail time to be imposed
upon Schake without suspension of one year of a ten year
sentence.
***
Notwithstanding Dover’s clear understanding of the
demand by [plaintiffs] for jail time for Schake, Dover, by
affirmative acts and/or silence tantamount to fraud and
prosecutorial misconduct, led Judge Burris to believe that
[plaintiffs] had no objection to Schake pleading guilty. . .
and to [be] placed on probation with no jail time.

The petition further alleges that, on the day of sentencing, plaintiffs’ attorney
met with ADA Dover and “received assurance that Judge Burris would be sentencing
Schake to an agreed plea. . . of one year in jail without suspension of sentence.”
After Ms. Jameson gave a victim impact statement and Judge Burris again met with
ADA Dover and Mr. Schake’s attorney, J udge Burris sentenced Mr. Schake to ten
years, with full suspension of that sentence.
According to plaintiffs , ADA Dover advised them that Judge Burris had
agreed that Mr. Schake serve one year in jail, “but at the time of sentencing had
apparently ‘changed his mind’ without warning to him and instead decided to. . .
[suspend] his entire ten year sentence.” Plaintiffs requested that ADA Dover
question Judge Burris abo ut his reasons for the suspended sentence. When ADA
Dover failed to report back to them, plaintiffs and their attorney met with him and

4

DA Montgomery and asked that the State file a motion to reconsider the sentence.
Although ADA Dover attempted to dissuade its filing, the State ultimately filed the
motion, which Judge Burris thereafter denied. In his written reasons, Judge Burris
noted that the plea had been acceptable “to the Court only if the Victim was agreeable
to the plea.” (Emphasis supplied). He further commented that “[a]t no time did the
State inform the Court that the Victim was not satisfied with the plea agreement”
and that he “would not have accepted the plea agreement” had he known. The State
sought supervisory review of the denial of this motion, and both the court of appeal
and this Court denied its writ applications.3
In this lawsuit, plaintiffs contend that “representations by Dover were
intentional misrepresentations and fraudulent to [plaintiffs]” as Judge Burris had
never agreed to give Mr. Schake any jail time. ADA Dover’s inactions throughout
the sentencing process amount to “intentional tort, fraud, ill practices,
misrepresentations, and a total disregard for the Louisiana Constitution of 1974 and
legal rights under Louisiana law of [Ms. Jameson] as a minor victim of a sex crime.”
Plaintiffs further maintain that D A Montgomery failed in his responsibility
for the “hiring, training and supervision of Dover and for enacting and enforcing
policies, practices, and customs” of his office “to best ensure that no such fraudulent
conduct could or would occur.” DA Montgomery is thus liable both in his individual
capacity and vicariously under the doctrine of respondeat superior . Plaintiffs
contend that Ms. Jameson, “as a crime victim, has the right to due process and equal
protection of the laws. . . and a district attorney is responsib le to adopt and enforce
policies and procedures to ensure that a crime victim is not deprived of those
Constitutional rights.”

3 State v. Schake , 2021 -0851 (La. App. 1 Cir. 10/19/21), --- So. 3d ----, 2021 WL 4866351
(unpub.), writ denied, 2021-01719 (La. 2/8/22), 332 So. 3d 665.

5

The petition seeks reasonable compensatory damages, past and future,
including: emotional trauma and depression, loss of enjoyment of life, and medical
and prescription expenses,” “all other special and general damages as allowed under
Louisiana law,” punitive damages, attorney’s fees and legal interest.4
Defendants responded to the petition by filing a p eremptory exception of no
right of action and n o cause of action . The trial court denied the exception of no
cause of action and, by a two-to-one decision, the court of appeal denied defendants’
writ application.5 Jameson v. Montgomery, 2022-0857 (La. App. 1 Cir. 11/7/22), --
- So. 3d ----, 2022 WL 16753550 (unpub.). Judge Lanier dissented and wrote:
A District Attorney and his assistants are absolutely
immune from civil liability for actions taken within the
scope of their duties in initiating and pursuing a criminal
prosecution. Sinclair v. State ex rel. Dep’t of Pub. Safety
& Corr., 99-2290 (La. App. 1st Cir. 11/3/00), 769 So.2d
1270, writ denied , 2000 -3331 (La. 1/25/02), 806 So.2d
665, cert. denied , 536 U.S. 910, 122 S. Ct. 2369, 153
L.Ed.2d 189 (2002). Plaintiffs, Gabrie lle C. Jameson and
Kim L. Jameson wife of/and Bobby A. Jameson, assert
claims of prosecutorial misconduct and negligent hiring
and supervision against defendants, District Attorney
Warren Montgomery and Assistant District Attorney Iain
Dover. The allegations contained in the pleadings involve
actions that were performed within the course and scope
of their prosecutorial functions in connection with a
judicial proceeding, as opposed to administrative or
investigative functions. As such, I find the conduct
complained of falls within the ambit of absolute immunity
protection. See Knapper v. Connick , [19]96-0434 (La.
10/15/96), 681 So.2d 944. Accordingly, I would reverse
the trial court’s July 22, 2022 judgment, grant the
exception of no cause of action, and dismiss with prejudice
plaintiffs’ claims against defendants.

Id., 2022-0857, 2022 WL 16753550 at *1.

4 Ms. Jameson’s parents allege that “they too were victims of an intentional infliction of emotional
distress by Dover, of which District Attorney Montgomery is vicariously liable.” As a result, they
allege, they have “suffered, past, present and future” damages.

5 The hearing on the exceptions was limited to the exception of no cause of action.

6

We granted defendants’ writ application to examine the correctness of the
lower courts’ determination that plaintiffs’ petition states a cause of action. Jameson
v. Montgomery, 2022-01784 (La. 1/18/23), 352 So. 3d 964.
DISCUSSION
A peremptory exception of no cause of action “questions whether the law
extends a remedy against the defendant to anyone under the factual allegations of
the petition.” Kendrick v. Est. of Barre, 2021-00993, p. 3 (La. 3/25/22), 339 So. 3d
615, 617 . For purposes of this exception, a cause of action “ is defined as the
operative facts that give rise to the plaintiff’ s right to judicially assert the action
against the defendant.” Ramey v. DeCaire, 2003-1299, p. 7 (La. 3/19/04), 869 So.
2d 114, 118. In deciding an exception of no cause of action, a court is to consider
the petition, alone, and no evidence may be introduced to support or controvert the
exception; as such, all well-pleaded allegations of fact are accepted as true. See State
ex rel. Tureau v. BEPCO, L.P. , 2021-0856 (La. 10/21/22), 351 So. 3d 297, 310 ;
Everything on Wheels Subaru, Inc. v. Subaru S., Inc ., 616 So. 2d 1234, 1235 (La.
1993). Because a trial court’s judgment relating to an exception of no cause of action
is based solely on the petition and raises a question of law, a reviewing court should
conduct a de novo review. Ramey, 2003-1299, pp. 7-8, 869 So. 2d at 119.
Resolution of the questions before us turns on whether the doctrine of absolute
immunity as set forth in Knapper shields ADA Dover from civil li ability for the
claims asserted or, as plaintiffs maintain, the Knapper Court was “in error” in
“pronouncing that the prosecutorial immunity doctrine . . . was controlling in
Louisiana state law actions because the Louisiana Legislature had already enacted
LSA-R.S. 9:2798.1. . . in 1985.” 6 This statute, plaintiffs submit, “only gives civil

6 La. R.S. 9:2798.1 B generally provides immunity to “public entities or their officers or employees
based upon the exercise or performance or the failure to exercise or perform their policymaking or
discretionary acts when such acts are within the course and scope of th eir lawful powers and
duties,” subject to exceptions set forth in subpart C, discussed infra.

7

immunity to prosecutors for negligent acts and omissions and clearly expresses that
civil immunity is not granted for intentional torts and other described purposeful bad
acts.” Plaintiffs further contend that crime victims have certain rights under La.
Const. art. I, § 25 and La. R.S. 46:1844, the Crime Victims Bill of Rights (“CVBR”),
neither of which “ prohibit the causes of action ” pl aintiffs assert in this lawsuit.
Plaintiffs thus argue that their petition states a cause of action under our general tort
law – La. C.C. art. 2315, which imposes liability for “[e]very act whatever of man
that causes damage to another.”
Accepting as true, as we must, the allegations of fact in plaintiffs’ petition, we
find that they do not give rise to a legally enforceable cause of action against ADA
Dover and DA Montgomery. We do not condone improper conduct of a prosecutor,
nor disregard the importance of crime victims’ rights . However, our case law
supports a finding that a prosecutor is afforded absolute immunity for acts or
omissions that “fall within the scope of the prosecutor’s role as an advocate for the
state and are intimately associated with the conduct of the judicia l phase of the
criminal process.” Knapper, 1996-0434, p. 10, 681 So. 2d at 950. Similarly, where
claims are made against a DA for an ADA’s misconduct, where no cause of action
exists against the ADA, necessarily, there can be no cause of action against the DA.7

7 Like other employment-related scenarios, an employer’s liability is premised on a cognizable
claim against the employee. Here, two theories are advanced for DA Montgomery’s liability:
vicarious liability and negligence involving ADA Dover’s employment.

Vicarious liability arises from La. C.C. art. 2320, which imposes liability on employer s “for the
damage occasioned by their servants and overseers, in the exercise of the functions in which they
are employed.” Where an employee is accorded immunity, necessar ily, his employer cannot be
held vicariously liable for his actions or inactions.

Similarly, as this Court recently explained, “an employer can only be liable under theories of
negligent hiring, supe rvision, training and retention . . . if th e employee is at fault[;]. . . [T] he
employer cannot be liable if the employee is not at fault.” Martin v. Thomas, 2021-01490, p. 13
(La. 6/29/22), 346 So. 3d 238, 247. (E mphasis supplied). Again, where an employee is immune
from suit, there can be no claim against his employer for negligence in hiring, retaining, training
or supervising that employee.

8

The doctrine of absolute prosecutorial immunity evolved from the decision of
the United States Supreme Court in Imbler v. Pachtman , 424 U.S . 409 (1976).
Imbler involved allegations against a prosecutor and others for acts of misconduct,
including the knowing use of false testimony at trial and the suppression of evidence
favorable to Imbler .8 The Imbler Court first observed that the considerations
underlying common-law prosecutorial immunity are the same as those for common-
law judicial immunity, including:
. . . concern that harassment by unfounded litigation would
cause a def lection of the prosecutor’s energies from his
public duties, and the possibility that he would shade his
decisions instead of exercising the independence of
judgment required by his public trust.

Id., 424 U.S. at 423. The Court further noted that “affording of only a qualified
immunity to the prosecutor also could have an adverse effect upon the functioning
of the criminal justice system.” Id. 424 U.S. at 426. The Court then held that the
prosecutor’s activities in Imbler 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.” Id., 424 U.S. at 430. Imbler fully recognized that:
[T]his immunity does leave the genuinely wronged
defendant without civil redress against a prosecutor whose
malicious or dishonest action deprives him of liberty. But
the alterna tive of qualifying a prosecutor’ s immunity
would disserve the broader public interest.

Id. 424 U.S. at 427.9

8 Procedurally, the case was before the Court on a motion to dismiss under Fed. R. Civ. Pro. art.
12(b)(6), which, similar to an exception of no cause of action, is based on the “failure to state a
claim upon which relief can be granted.”

9 In this regard, the Court cited commentary by Judge Learned Hand in Gregoire v. Biddle, 177
F.2d 579, 581 (2d Cir. 1949):

“As is so often the case, the answer must be found in a balance
between the evils inevitable in either alternative. In this instance it
has been thought in the end better to leave unredressed the wrongs
done by dishonest officers than to subject those who try to do their
duty to the constant dread of retaliation.”

Imbler, 424 U.S. at 428.

9

Although Imbler was re -examined an d clarified by later decisions of the
Supreme Court, the rule of absolute immunity for activities associated with the
judicial phase of the criminal process remained constant. In Burns v. Reed, 500 U.S.
478 (1991), the Court held that absolute immunity barred claims against a prosecutor
for alleged misconduct in a probable cause hearing ( during which the prosecutor ,
seeking to obtain a search warrant, failed to disclose that a confession had been made
by a defendant under hypnosis ). The Court reasoned that appearing before a judge
and presenting evidence to obtain a search warrant “clearly involve the prosecutor’s
‘role as advocate for the State,’ rather than his role as ‘administrator or investigative
officer,’ ” and that “appearing at a probable-cause hearing is ‘intimately associated
with the judicial phase of the criminal process.’ ” Id., 500 U.S. at 491-92. However,
that same prosecutor had no immunity for giving legal advice to police officers as
this is not a function closely related to the judicial process. The Court observed:
[E]ven if a prosecutor’s role in giving advice to the police
does carry with it some risk of burdensome litigation, the
concern with litigation in our immunity cases is not merely
a generalized concern with interference with an official’s
duties, but rather is a concern with interference with the
conduct closely related to the judicial process. . . .
Absolute immunity is designed to free the judicial process
from the harassment and intimidation associated with
litigation.

Id., 500 U.S. at 494. (Emphasis supplied, internal citations omitted).
Later, in Buckley v. Fitzsimmons , 509 U.S. 259 (1993), the Supreme Court
examined what claims, if any, fall outside the scope of a prosecutor’s absolute
immunity. Noting that “ the Imbler approach focuses on the conduct for which
immunity is claimed, not on the harm that the conduct may have caused or the
question [of] whether it was lawful ,” the Court held that “[a] prosecutor’s
administrative duties and those investigatory function s th at do not relate to an
advocate’s preparation for the initiation of a prosecution or for judicial proceedings
are not entitled to absolute immunity.” Id., 509 U.S. 271-73.

10

The Imbler decision, and its progeny, was adopted by this Court in Knapper,
supra, a case involving the claim that a prosecutor “with malice or reckless disregard
of” the plaintiff’s rights, failed to turn over exculpatory information. Id., 1996-0434,
p. 2, 681at 945. While Imbler was not binding law because it dealt with a federal
cause of action, the Knapper Court found its reasoning to be persuasive , observing
that “we have harmonized our own state immunity rules with federal immunity
principles in the past.” Id., 1996-0434, p. 5, 681 So. 2d 947.
Although prosecutorial immunity was a matter of first impression in Knapper,
the Court recognized that it had been “long held on grounds of necessity and public
policy that judges acting within the scope of their subject matter jurisdictions cannot
be held liable for acts done in their judicial capacities.” Id., 1996-0434, pp. 2-3, 681
So. 2d at 946. The Court looked to its prior decision of Diaz v. Allstate Insurance
Co., 433 So. 2d 699 (La. 1983), for the principle that “state prosecuting attorneys
are constitutional officers who serve in the judicial branch of the government .” Id.,
1996-0434, p. 3, 681 So. 2d at 946. It also took into account other cases holding that
prosecuting attorneys acting within the scope of their prosecutorial duties are entitled
to the same absolute immunity extended to judges . The Court observed that the
overwhelming majority of cases from other states provide absolute immunity to
prosecutors when acting within the scope of their traditional prosecutorial duties.
After analyzing Imbler, Burns, Buckley and other relevant federal cases, the
Knapper Court found:
[A] functional analysis of the role a prosecutor is fulfilling
when the alleged misconduct occurs is the touchstone to
determining the type of immunity available. We are
persuaded that granting absolute immunity to prosecutors
from malicious prosecution suits is appropriate when the
activities complained of fall wit hin the scope of the
prosecutor’s role as an advocate for the state and ar e
intimately associated with the conduct of the judicial
phase of the criminal process.

Id., 1996-0434, p. 10, 681 So. 2d at 950.

11

This absolute immunity applies even where a prosecutor’s conduct is
intentional or malicious. The Court reasoned:
Criminal defendants who are convicted as a consequence
of prosecutorial misconduct will be afforded post -
conviction relief where appropriate. If misconduct is
detected during the original trial, prosecutors are subject
to sanctions pursuant to the inherent authority of the trial
judge. Moreover, prosecutorial misconduct can be the
basis of independent criminal charges against a
prosecutor. Misconduct can also rise to the level of
justifying professional disciplinary proceedings. Finally,
prosecutorial condu ct, whether that of the District
Attorney or his assistants, is subject to the ultimate test of
public approval at the ballot box.

***
[T]he checks on prosecutorial misconduct already inherent
in our justice system undermine the argument that the
imposition of civil damages is the only way to insure the
integrity of prosecutions. We are convinced that the
interests of justice as a whole are best served by extending
absolute immunity in cases of the type before us, even
though it may result in the d enial of an individual’ s
potential recovery of money damages.10

Id., 1996-0434, p. 11, 681 So. 2d at 950-51. See also, Hayes v. Par. of Orleans ,
1998-2388, p. 4 (La. App. 4 Cir. 6/16/99), 737 So. 2d 959, 961 (prosecutorial
immunity “extends even to prosecutorial actions taken in bad faith or with malice.”).
Cases following Knapper have consistently and uniformly applied the
doctrine of absolute prosecutorial immunity to bar certain claims against
prosecutors. Our review of these cases leads us to reaffirm our holding in Knapper
and reiterate that, where a prosecutor acts within the scope of his prosecutorial duties
as an advocate for the sta te and the alleged misconduct arises from “conduct
intimately associated with the judicial phase of the criminal process,” he is entitled
to absolute immunity. Knapper, 1996-0434, p. 11, 681 So. 2d at 951. We do so
because the considerations for which the absolute immunity doctrine was initially

10 Certain types of prosecutorial misconduct have lead to disciplinary action . See, e.g., In re
Jordan, 2004-2397 (La. 6/29/05), 913 So. 2d 775, 784 (imposing sanctions for failure to disclose
exculpatory evidence).

12

created continue to be relevant and compelling .11 Indeed, as the Supreme Court
made clear, absolute prosecutorial immunity “ is not grounded in any special ‘esteem
for those who perform these functions, and certainly not from a desire to shield
abuses of office, but because any lesser degree of immunity could impair the judicial
process itself.’ ” Kalina v. Fletcher , 522 U.S. 118, 127 (1997) (quoting Malley v.
Briggs, 475 U.S. 335, 342 (1986)).
Necessarily, whether absolute immunity will apply to bar claims against a
prosecutor will depend on the facts of each case. A court will be required to evaluate
the role the prosecutor was fulfilling when the all eged misconduct occurred. This
entails a consideration of whether the alleged misconduct is intimately ass ociated
with the judicial phase of the criminal process.
In the instant case, although there is no precedent involving alleged
misconduct in co mmunicating with a victim in connection with a defendant’s
sentencing, we find useful guidance from other cases. In Fine v. Senette, 1997-1851,
p. 2 (La. App. 1 Cir. 6/29/98), 714 So. 2d 1263, 1264, for example, suit was filed
against an ADA who was alleged to have falsely advised the parole board during a
clemency hearing “that the mother of the victim was ‘pressured’ by [the defendant’s]
family to support [his] request for clemency .” In finding that the ADA was
absolutely immune from the defendant’s claim that he engaged in misconduct by
knowingly providing false information to the parole board, the court of appeal held
that:
[T]he requisite communications between the prosecutor
and clemency authorities, as a portion of the sentencing
process, are within the scope of the prosecutor’s role as an
advocate for the state and are entitled to absolute
immunity.

11 Those concerns include the “concern that constant fear of later civil suits for damages may chill
the vigorous prosecution of those charged with violating state statutes; that such fears may deter
competent people from seeking office; and that defense of claims for malicious prosecution may
drain valuable time and effort.” Knapper, 1996-0434, p. 5, 681 So. 2d at 947.

13

Id., p. 4, 714 So. 2d at 1265. (Emphasis added).12 The same result was reached in
Sinclair v. State ex rel. Dep ’t of Pub. Safety & Corr. , 1999-2290 (La. App. 1 Cir.
11/3/00), 769 So. 2d 1270, w here the ADA was alleged to have disseminated false
information in opposition to the defendant’s release on parole. The court of appeal
agreed with the trial court that the ADA’s conduct was entitled to absolute immunity.
It quoted, with approval, the trial court’s reasoning:
[T]he District Attorney’s role at a parole hearing is simply
a continuation of his role as ‘advocate for the state’ which
begins with the institution of prosecution and would
follow the defendant throughout his incarceration and
completion of any parole period until his release. At all
such stages the State is obviously an interested party in the
status and progress of the defendant and therefore this
court finds the actions of the District Attorney in
disseminating the criminal hist ory of the defendant in
conjunction with his parole hearing was acting within his
capacity as the ‘advocate for the State’.

Id., p. 4, 769 So. 2d at 1272.
Our jurisprudence is replete with other cases in which the absolute
prosecutorial immunity doctrine was found to bar claims against prosecutors .13

12 The Fine court cited Quartararo v. Catterson, 917 F.Supp. 919, 953 (4 E.D.N.Y.1996) , which
dealt with the identical issue, and found that “the prosecutor’ s transmission of infor mation to
parole authorities was . . . ‘i ntimately associated with the judicial phase of the criminal process’
and was entitled to absolute immunity.” Fine, pp. 3-4, 714 So. 2d at 1265.

13 See, e.g., Painter v. Clouatre, 2021-1276 (La. App. 1 Cir. 6/3/22), --- So. 3d ----, ----, 2022 WL
1829598 at *3, writ denied, 2022-00987 (La. 10/12/22), 348 So. 3d 79 (a prosecutor’s decision to
convene a grand jury, albeit for allegedly improper and malicious purposes, “is within the purview
of the duties of the district attorney, intimately associated with the judicial phase of the criminal
process, and occurred in the course of his role as an advocate for the state ,” warranting the grant
of the prosecutor’s exception of no cause of action based on absolute immunity); Gauthier v. Ard,
2018-0861 (La. App. 1 Cir. 7/23/19) --- So. 3d ----, ----, 2019 WL 3311965 at *2 (absolute
immunity barred claims against a prosecutor for allegedly conspiring to falsely report and allege
criminal conduct and continuing prosecution with knowledge of the falsity of the charges ;
“[p]rosecutors, acting within the scope of their traditional prosecutorial duties as advocates for the
state, are entitled to absolute immunity” ); Tickle v. Ballay , 2018 -0408, p. 14 (La. App. 4 Cir.
11/14/18), 259 So. 3d 435, 444 (claims for malicious prosecution stemming from the allegation
that there was no probable cause for defendant’s arrest were properly dismissed on an exception
of no cause of action, as the claims fell “within the ambit of prosecutorial immunity”); Miller v.
Desoto Reg’l Health Sys., 2013-639, p. 12 (La. App. 3 Cir. 12/11/13), 128 So. 3d 649, 659 (claims
against a DA for malicious prosecution following a physician’s arrest, lengthy incarceration and
the subsequent dismissal of charges by the DA were properly dismissed on exception of no cause
of action as DA’s conduct fell “squarely within his role as a prosecutor”); Hayes v. Par. of Orleans,
1998-2388 (La. App. 4 Cir. 6/16/99), 737 So. 2d 959 (allegations that there had been no probable
cause to arrest and hold the plaintiff, that trial was not timely commenced, and that the State re -

14

Conversely, where claims against a prosecutor arise from administrative,
investigative, or ministerial roles, the prosecutor has only a qualified immunity
rather than absolute immunity. See Buckley, 509 U.S. at 273; Knapper, 1996-0434,
p. 10, 681 So. 2d at 950; Suarez v. DeRosier, 2017-770 (La. App. 3 Cir. 3/7/18), 241
So. 3d 1086, 1091. See also, Walls v. State, 1995-1133, 4 (La. App. 3 Cir. 1/31/96),
670 So. 2d 382, 384 (“ a prosecutor is not entitled to absolute immunity for
administrative duties and those investigatory functions th at do not relate to an
advocate’s preparation for the initiation of prosecution or for judicial proceedings”)
(emphasis added) ; Gauthier, 2018 -0861, p. 6 n.5, --- So. 3d at ----, 2019 WL
3311965 at *3 (“a prosecutor is afforded only a qualified immunity for actions taken
in an investigatory, administrative, ministerial, or other role that has no functional
tie to the judicial process”) (emphasis added).
There is scant state law in Louisiana defining what conduct falls within the
qualified immunity of a prosecutor whose alleged misconduct arises from
administrative, investigative or ministerial activities; the vast majority, if not all, of
the cases allege misconduct occurring within the scope of a prosecution. However,
cases in other jurisdictions have considered what types of conduct fall within this
qualified immunity. In Singleton v. Cannizzaro, 956 F.3d 773, 777 (5th Cir. 2020),
a case on which plaintiffs heavily rely, the Fifth Circuit found that prosecutors who
were alleged to have created and issued fake “ ‘subpoenas’ to pressure crime victims
and witnesses to meet with them” were not entitled to absolute immunity. The court,
noting that the prosecutors “allegedly intentionally avoided the judicial process that
Louisiana law requires for obtaining subpoenas ,” concluded that the “ creation and
use of the fake subpoenas thus fell ‘ outside the judicial process.’ ” Id., 956 F.3d at
784. Additionally, the court observed that the prosecutors’ “information-gathering

indicted plaintiff knowing that there was no probable cause were properly dismissed as this
conduct fell within the course and scope of the prosecutor’s functions).

15

is more analogous to investigative police work than advocatory conduct. ” Id., 956
F.3d at 783.
Similarly, in Buckley, the Court found that prosecutors were entitled to only
a qualified immunity where they engaged in pre -indictment investigation s and
allegedly fabricated false evidence to present to a grand jury ; because this conduct
“occurred well before they could properly claim to be acting as advocates.” Buckley,
509 U.S. at 275. Likewise, a prosecutor who gave pre-arrest advice to police officers
was not entitled to absolute immunity because this conduct was not “intimately
associated with the judicial phase of the criminal process.” Burns, 500 U.S. at 493.14
There can be no question that a prosecutor’s participation in plea bargaining
is conduct “intimately associated” with the judicial process. While no court in this
state has expressly addressed this issue, num erous cases from other jurisdictions
have invariably concluded that this is conduct for which absolute immunity
applies.15 Courts have consistently found that conduct associated with plea
bargaining warrants absolute prosecutorial immunity as the conduct “ is clearly not
administrative or investigative but rather is . . . intimately associated with the
prosecutor’s role as an advocate of the State in the judicial process.” Cole v. Smith,
188 F.3d 506 (6th Cir. 1999) . In Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir.
1981), where claims were made that a prosecutor lied during plea negotiations, the
court held that, a “prosecutor’s activities in the plea bargaining context merit the

14 Other decisions finding that a prosecutor’s conduct fell outside the scope for which absolute
immunity would apply include: Loupe v. O ’Bannon, 824 F.3d 534, 540 (5th Cir. 2016)
(prosecutor’s order of a warrantless arrest was “not part of [ the assistant district attorney’s ]
prosecutorial function”); Wendrow v. Mich. Dep’t of Human Servs ., 534 F. App’x 516, 527 (6th
Cir. 2013) (“[p]rosecutors who supervise and participate in unconstitutional police interrogations
of a criminal suspect are not ent itled to absolute immunity”); Prince v. Hicks, 198 F.3d 607 (6th
Cir. 1999) (prosecutor was not entitled to absolute immunity when he undertook a preliminary
investigation and advised police that probable cause existed to make an arrest).

15 As the Supre me Court , too, observed, “[t]he disposition of criminal charges by agreement
between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential
component of the administration of justice.” Santobello v. New York, 404 U.S. 257, 260 (1971).

16

protection of absolute immunity. The plea negotiation is an ‘e ssential component’
of our system of criminal justice.”
Notably, one court found that claims that a district attorney’s office “did not
meaningfully interview [the victim] concerning her version of the events and ignored
her input when negotiating a plea deal,” were barred by the doctrine of absolute
prosecutorial immunity. Caruso v. Zugibe, 646 F. App’x 101, 105 (2nd Cir. 2016)
(“[i]nsofar as these allegations concern the District Attorney’s Office’ s conduct in
the plea bargaining process, it is absolutely immune.”). See also, Rouse v. Stacy,
478 F. App’x 945, 951 (6th Cir. 2012) (following Imbler, “[t]he resulting body of
case law, without exception, expresses the pr inciple that plea bargains are ‘ so
intimately associated with the prosecutor’ s role as an advocate of the State in the
judicial process as to warrant absolute immunity.’ ”); Doe v. Phillips, 81 F.3d 1204,
1210 (2d Cir. 1996) (“[T]he negotiation of a plea bargain is an act within a
prosecutor’s jurisdiction as a judicial officer.”); Weary v. Foster, 33 F.4th 260, 269-
70 (5th Cir. 2022) (“A plea negotiation —in which charging, sentencing, and other
purely prosecutorial decisions are bargained for —is quintessentially advocatory in
function.”); Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1492 (10th Cir. 1991)
(plea bargaining activity warrants absolute immunity “due to its intimate association
with the judicial process.”).
Courts of other jurisdictions have also held that the sentencing ph ase of a
prosecution is “intimately associated with the judicial phase of the criminal process,”
thus affording prosecutors absolute immunity for claims of alleged misconduct. See
Rodriguez v. Lewis, 427 F. App’x 352, 353 (5th Cir. 2011) (per curiam) (“Because
[the United States attorney] was acting within the scope of his employment as a
prosecutor during the sentencing hearing, he enjoys absolute immunity from Bivens
[v. Six Unknown Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971)]
liability.”); Donaghe v. McKay, 81 F. App’x 925, 926 (9th Cir. 2003) (“The district

17

court properly concluded that United States Attorney McKay was entitled to
absolute immunity, because his role in the sentencing recommendation was
‘intimately associated with the judicial phase of the criminal process.’ ”); Pinaud v.
Cnty. of Suffolk , 52 F.3d 1139, 1149 -50 (2d Cir. 1995) (“we have pre viously said
that conduct in a ‘sentencing proceeding’ would be protected by absolute
prosecutorial immunity, . . . [W]e are bound to hold that a prosecutor’s
communications with other officials directly pertaining to matters of sentencing are
entitled to absolute immunity.”); Taylor, 640 F.2d at 451-52 (“the Assistant District
Attorney’s conduct in. . . the sentencing proceeding in state court is protected by the
doctrine of absolute prosecutorial immunity.”).
With these principles in mind, we now turn to the claims made in the instant
matter. This case presents a unique set of circumstances, and there are no reported
Louisiana decisions involving prosecutorial misconduct in the context of
communications with a victim regarding a defendant’s plea bargaining and
sentencing. However, based on the foregoing jurisprudence , we disagree with
plaintiffs that a prosecutor’s conduct during sentenc ing is “not an integral part of
that prosecutor’s role in a criminal proceeding.” We further disagree with plaintiffs’
position that absolute immunity does not apply in this instance because there is no
statutory duty of a prosecutor to engage in “pleas d iscussions” and Judge Burris’
request that ADA Dover inquire as to plaintiffs’ desire for Mr. Schake’s sentence
was not “an integral part of the prosecutor’s responsibilities as an advocate for the
state.”
In our view, the jurisprudenc e fully supports a finding that plea bargaining
and sentencing are phases of the “judicial process” for which absolute immunity
applies. This is true whether the party harmed by the alleged misconduct is a

18

defendant, a victim, or some other party. 16 The focus of absolute prosecutorial
misconduct is not on the harm suffered or the identity of the injured party. Instead,
the focus is on whether the prosecutor’s conduct is intimately associated with the
judicial process of the prosecution and occurred while the prosecutor was acting
within the role of a prosecutor . See, Knapper, 1996-0434, pp. 9-10, 681 So. 2d at
950. We agree with the jurisprudence from other jurisdictions that conduct
associated with plea bargaining and sentencing is clearly neither administrative nor
investigative. We further agree that a prosecutor’s alleged misconduct during plea
bargaining and sentencing merit the protection of absolute immunity. The petition
in this matter, therefore, fails to state a cause of action against ADA Dover; it is clear
that all of plaintiffs’ allegations arise from ADA Dover’s alleged actions or inactions
during the judicial phase of the criminal process and while he was acting within the
scope of his role as an advocate for the state.

16 Notably, at least o ne court expressly rejected the claim that absolute immunity does not bar
claims against a prosecutor when the person harmed is not a defendant but rather an “innocent
third party.” In S.J.S. by L.S. v. Faribault Cnty., 556 N.W.2d 563 (Minn. Ct. App. 1996) , a
malicious prosecution suit was filed against a prosecutor for providing an unedited copy of a minor
victim’s sexual assault interview to a defendant’ s attorney in discovery who, in turn, provided it
to the defendant. The defendant shared the statement with friends and kept it on his coffee table
at home. The court rejected the claim that the prosecutorial immunity defense was intended “to
protect a prosecutor only from civil liability to former defendants in criminal cases brought by the
prosecutor. . . [and not to a] suit by innocent third parties.” Id., 556 N.W.2d at 565-66. The Court
found as follows:

[T]he vigorous and fearless performance of prosecutorial duties is
essential to the proper functioning of the criminal justice system
and, therefore, to the broader public interest. Brown [v. Dayton
Hudson Corp.], 314 N.W.2d [210,] 213 (citing Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 993, 47 L.Ed.2d 128 (1976)). The
purpose of extending absolute immunity to prosecutors is to prevent
the possibility that the risk of having to defend a lawsuit would deter
a prosecutor from the fearless and vigorous performance of the
prosecutorial function. Id. at 213 (citing Imbler, 424 U.S. at 423,
427, 96 S.Ct. at 991, 993).

The deterrent effect of the threat of litigation exists regardless of the
plaintiff’s status as a former criminal defendant or innocent third
party. Thus, to ensure vigorous and fearless performance of the
prosecutorial function, and thereby promote the broader public
interest, absolute immunity must protect prosecutors from civil
liability to any plaintiff for acts that occur in the performance of
prosecutorial duties.

Id., 556 N.W.2d at 566.

19

Plaintiffs submit that, because sentencing is a “function exclusive to the
sentencing judge,” it “ is not a necessary function of prosecutors.” (Emphasis
supplied). An analogous argument was made in Geter v. Fortenberry, 849 F.2d 1550
(5th Cir. 1988), where suit was filed against a prosecutor for allegedly improperly
influencing a trial j udge to set trial with only two days -notice to the defendant’s
counsel. Plaintiffs argued that, because the setting of trial in criminal cases is within
the control of a trial judge, the prosecutor was not entitled to absolute immunity.
The court rejected this argument, stating:
If we parse the activities of a prosecutor incident to the
bringing and trial of a case so closely, the cloak of
immunity would be tattered. There is no principled way to
distinguish this conduct from other actions in the course of
a prosecution that have previously been held absolutely
immune. To accept Geter ’s rationale would conflict with
Imbler’s holding that “in initiating a prosecut ion and in
presenting the State’s case, the prosecutor is immune from
a civil suit for damages. . . .”

Geter, 849 F.2d at 1555. We agree with the reasoning of Geter and find no merit in
this argument. While only a judge may sentence a defendant, the sentencing phase
is clearly part of the “judicial phase” of a prosecution.
Nor are w e persuaded by plaintiffs’ argument that a “prosecutor’s integral
function in the prosecution of a criminal defendant ends upon a guilty plea or a jury
or judge verdict .” Numerous cases reflect that a prosecutor’s role extend s well
beyond that time. See, e.g., Jenkins v. Walker , 620 F. App’ x 709, 711 (11th Cir.
2015) (A “prosecutor’s actions ‘intimately associated with the judicial phase of the
criminal process’ are protected by absolute immunity. . . This immunity extends to
the post -sentencing conduct of a prosecutor. . . Thus, a prosecutor has absolute
immunity for [the] presentation of evidence at post -sentencing habeas corpus
proceedings.”) (internal citations omitted) ; Hart v. Hodges, 587 F.3d 1288, 1298
(11th Cir. 2009) (where the prosecutor was attempting “to advocate the judicial
sentence he understood (whether correctly or mistakenly) had been imposed by the

20

state trial court,” this activity was “so intimately associated with the judicial phase
of the criminal process” that it “cloak[ed] [the prosecutor] with absolute immunity
from suits for damages .”); Carter v. Burch , 34 F.3d 257, 263 (4th Cir. 1994)
(absolute immunity was affirmed where prosecutor “was handli ng the
postconviction motions [sic] and the initial direct appeal . . . [and thus] still
functioning as an advocate for the State, and not in an investigatory capacity.”).
Plaintiffs suggest that ADA Dover’s conduct is especially egregious because
it was intentional and involved a vulnerable minor victim of a sexual crime and for
this reason, he should not be afforded absolute prosecutorial immunity. We are
mindful of plaintiffs’ position but note that virtually every case seeking damages for
prosecutorial misconduct involves some act of an egregious nature, often intentional;
and, as Knapper made clear, prosecutors are protected by absolute immunity
regardless of whether there is evidence of malice. See also, Cousin v. Small, 325
F.3d 627, 635 (5th Cir. 2003) (“Wilful or malicious prosecutorial misconduct is
egregious by definition, yet prosecutors are absolutely immune from liability for
such conduct if it occurs in the exercise of their advocatory function. ”); Bernard v.
Cnty. of Suffolk, 356 F.3d 495, 504-05 (2d Cir. 2004) (“ ‘absolute immunity spares
the official any scrutiny of his motives’ so that allegations of ‘bad faith or. . . malice
[cannot] defeat[ ] a claim of absolute immunity’ ”) (quoting Dorman v. Higgins, 821
F.2d 133, 139 (2d Cir.1987)).
As one court explained:
[I]t would be inappropriate here to engage in “judicial
scrutiny of the motives for the prosecutor ’s actions. . . .”
“[A] judicial act ‘does not become less judicial by
virtue of an allegation of malice or corruption of
motive.’ ” The converse of this maxim must also be true:
an act does not become more judicial by claiming a worthy
motive. . . . Because [i]t is the nature of the function
performed . . . that inform[s] our immunity analysis,” we
decline to ponder the motive. . . . “we look to the [act’s]
relation to a general function normally performed by a

21

[prosecutor]” to determine the applicability of
prosecutorial immunity.

Rouse, 478 F. App’x at 950-51 (6th Cir. 2012) (emphasis added; internal citations
omitted).17 We reiterate that our opinion should not be construed as sanctioning
improper conduct by a prosecutor, particularly when that conduct impacts a minor
victim. However, we decline to adopt an exception to the rule of prosecutorial
immunity when a minor victim is involved in the alleged misconduct.
We now turn to plaintiffs’ argument that La. R.S. 9:2798.1, entitled
“Policymaking or discretionary acts or omissions of public entities or their officers
or employees,” as positive legislation on the issue of a public official’s immunity,
supercedes case law and thus, the Knapper Court erroneously adopted the absolute
immunity doctrine.
Louisiana Revised Statute 9:2798.1 provides immunity to “public entities or
their officers or employees based upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when such acts are
within the course and scope of their lawful powers and duties .” La. R.S. 9:2798.1
B. There are exceptions to this immunity as provided in subpart C, as follows:
C. The provisions of Subsection B of this Section are not
applicable:

(1) To acts or omissions which are not reasonably related
to the legitimate governmental objective for which the
policymaking or discretionary power exists; or

(2) To acts or omissions which constitute criminal,
fraudulent, malicious, intentional, willful, outrageous,
reckless, or flagrant misconduct.

17 One decision applied the doctrine of absolute immunity to bar claims for prosecutorial
misconduct even where the accused was a ten-year old minor. Drake v. Howland, 463 F. App’x
523 (6th Cir. 2012) involved a malicious prosecution lawsuit against a prosecutor who was alleged
to have improperly and without probable cause pursued felony charges against the minor for
unlawful sexual conduct with a five-year-old. The Court, finding the prosecutor to be absolutely
immune, dismissed the case with prejudice.

22

In our view, this statute does not override the absolute immunity doctrine.
First, the statute was enacted in 1985, prior to our decision in Knapper. In the more
than thirty-five years since that time, it has never been applied to find a prosecutor
liable for acts performed during the course and scope of his employment and in the
context of the judicial process, even where the alleged conduct could fall within the
exception set forth in subpart C (2). Nor has any court found that an exception of
no cause of action founded on a prosecutor’s absolute immunity is defeated by
pleading allegations falling within that subpart. To the contrary, as noted herein, this
Court, consistent with virtually every decision of other jurisdictions, has given
prosecutors absolute immunity for such actions.
Second, we note the “long line of jurisprudence [holding] that those who enact
statutory provisions are presumed to act deliberately and with full knowledge of
existing laws on the same subject, with awareness of court cases and well -
established principles of statutory construction, with knowledge of the effect of their
acts and a purpose in view. . . .” Borel v. Young, 2007-0419, p. 7 (La. 11/27/07),
989 So. 2d 42, 48 (emphasis added). See also, Par. of Jefferson v. Kennedy, 2009-
145, pp. 4 -5 (La. App. 5 Cir. 10/27/09), 28 So. 3d 301 ; Buckley, 509 U.S. at 268
(“[c]ertain immunities were so well established in 1871 . . . that ‘we presume that
Congress would have specifically so provided had it wished to abolish’ them.”). For
decades, courts of this state have consistently dismissed claims against prosecutors
based on the doctrine of absolute prosecutorial immunity. The lack of any legislative
change to this statute confirms that absolute prosecutorial immunity remains a valid
doctrine under Louisiana law.
One recent appellate decision considered the interplay between a judge’s
absolute immunity and La. R.S. 9:2798.1. In Johnson v. Jasmine , 2019-365 (La.
App. 5 Cir. 1/29/20), 289 So. 3d 1209 , the plaintiff filed suit against a trial judge
alleging that she abused her authority when she issued an order in connection with a

23

child custody hearing. At the hearing, only the plaintiff, the father of the children,
appeared. The lawsuit alleged that, after the he aring concluded, the children’s
mother appeared and the judge engaged in ex parte communications. Because the
judge issued a custody order that differed from the proposed custody plan submitted
by the father, he alleged that the trial judge “willfully, negligently, maliciously, and
recklessly abused her authority.” Id., 2019-365, p. 2, 289 So. 3d at 1211. In response
to the lawsuit, the judge filed an exception o f no cause of action based on the
principle that judges are afforded absolute immunity while performing judicial acts.
Among the arguments plaintiff raised in opposition to the exception was that,
under La. R.S. 9:2798.1 C, a judge “is not insulated from liability in this case because
La. R.S. 9:2798.1, often called the ‘discretionary immunity doctrine’ ” does not grant
immunity to public officials for. . . ‘acts or omissions which constitute criminal,
fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct.’ ” Id., 2019-365, p. 4, 289 So. 3d at 1212. The court of appeal rejected
this argument, observing that, when a judge performs judicial acts, “the immunity
from civil liability has been considered absolute, even in cases in which the judge
acts with malice.” Id. (citing Knapper). The court reiterated that “public officials
are immune from liability for discretionary acts ‘when such acts are within the course
and scope of their lawful powers and duties.’ ” Id., 2019-365, p. 5, 289 So. 3d at
1212.
In our view, as discussed herein, case law clearly recognizes the doctrine of
absolute prosecutorial immunity, even where the alleged misconduct falls within the
scope of paragraph C. We agree with the reasoning of the Rouse Court that this
immunity applies irrespective of a prosecutor’s motive. See Rouse, 478 F. App’x at
950 (“[A] judicial act ‘does not become less judicial by virtue of an allegation of
malice or corruption of motive.’ ”) (quoting Mireles v. Waco, 502 U.S. 9, 13 (1991)).
It would be wholly incongruous to provide prosecutors with absolute immunity even

24

where alleged misconduct is intentional or malicious, as courts have consistently
held, yet subject them to the provisions of paragraph C. To hold otherwise would
invalidate the doctrine of absolute prosecutorial immunity altogether. Immunity for
conduct falling within the scope of the prosecutor’s role as an advocate for the state
and which is intimately associated with the conduct of the judicial phase of the
criminal process is absolute, La. R.S. 9:2798.1 notwithstanding.
Plaintiffs’ final contention concerns victims’ rights under Louisiana law, both
under our constitution and by statute. The provision of our constitution pertaining
to victims’ rights is found in Article I, § 25 and it states:
Any person who is a victim of crime shall be treated with
fairness, dignity, and respect, and shall be informed of the
rights accorded under this Section. As defined by law, a
victim of crime shall have the right to reasonable notice
and to be present and heard during all critical stages of
preconviction and postconviction proceedings; the right to
be informed upon the release from custody or the escape
of the accused or the offender; the right to confer with the
prosecution prior to final disposition of the case; the right
to refuse to be interviewed by the accused or a
representative of the accused; the right to review and
comment upon the presentence report prior to imposition
of sentence; the right to seek restitution; and the right to a
reasonably prompt conclusion of the case.

The CVRB provides similar rights, including, but not limited to: advance
notification concerning judicial proceedings or probation hearing with a right to be
present; the right to retain counsel to confer with law enforcement and judicial
agencies regarding the disposition of the case; notification of scheduling change s;
the right to review and comment on presentence or postsentence reports; the right to
be present and heard at all critical stages of the proceeding ; and the right to be
notified of pardon or parole.
Importantly, both La. Const. art. I, § 25 and the CVBR explicitly state that no
cause of action is conferred therein. The constitutional provision states:
Nothing in this Section shall be construed to inure to the
benefit of an accused or to confer upon any person the

25

right to appeal or seek supervisory review of any judicial
decision made in a criminal proceeding. Nothing in this
Section shall be the basis for an award of costs or attorney
fees, for the appointment of counsel for a victim, or for
any cause of action for compensation or damages against
the state of Louisiana, a political subdivision, a public
agency, or a court, or any officer, employee, or agent
thereof.

(Emphasis added). Similarly, the CVBR states that “[n] othing in this Section shall
be construed as creating a cause of action by or on behalf of any person for an award
of costs or attorney fees, for the appointment of counsel for a victim, or for any cause
of action for compensation or damages against the state of Louisiana, a political
subdivision, a public agency, or a court, or any officer, employee, or agent thereof.”
La. R.S. 46:1844 U. (Emphasis added). These provisions are explicit; neither our
constitution nor the CVBR provide a cause of action for the claims asserted in this
lawsuit.
Accordingly, we find that ADA Dover is entitled to absolute immunity for the
claims alleged in this lawsuit and, thus, the petition fails to state a cause of action
against him. It follows that there can be no cause of action against DA Montgomery,
either under a theory of vicarious liability or for employment -related claims. As
noted, we recently explained that “an employer can only be liable under theories of
negligent hiring, supervision, training and retention. . . if the employee is at fault[;].
. . t he employer cannot be liable if the employee is not at fault.” Martin, 2021-
01490, p. 13, 346 So. 3d at 247.
We note, too, that the Supreme Court found that absolute prosecutorial
immunity bar such claims. In Van de Kamp v. Goldstein, 555 U.S. 335, 339 (2008),
the Court considered whether prosecutorial immunity extends to claims “ that the
prosecution failed to disclose impeachment material. . . due to: (1) a failure properly
to train prosecutors, (2) a failure properly to supervise prosecutors, or (3) a failure
to establish an information system containing potential impeachment material about

26

informants.” The Court held that “a prosecutor’s absolute immunity extends to all
these claims” as well. Id.
DECREE
Based on the foregoing, t he judgments of the lower courts are reversed and
we enter judgment sustaining the exception of no cause of action and dismissing the
suit with prejudice.
REVERSED; EXCEPTION OF NO CAUSE OF ACTION SUSTAINED.

SUPREME COURT OF LOUISIANA
No. 2022-CC-01784
GABRIELLE C. JAMESON AND KIM L. JAMESON
WIFE OF/AND BOBBY A. JAMESON
VS.
HONORABLE WARREN L. MONTGOMERY, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY AS THE DISTRICT
ATTORNEY OF ST. TAMMANY PARISH, IAIN DOVER, IN HIS
INDIVIDUAL CAPACITY AND UNDERWRITERS AT LLOYD'S
LONDON A/K/A LLOYD’S ILLINOIS, INC.
On Supervisory Writ to the 22nd Judicial District Court,
Parish of St. Tammany
WEIMER, C.J., concurring in the result.
I respectfully concur in the result because I believe plaintiffs are not afforded
a remedy in law for damages against ADA Dover and DA Montgomery based on the
facts alleged in the pleading.
The majority opinion indicates “our case law supports a finding that a
prosecutor is afforded absolute immunity for acts or omissions that ‘fall within the
scope of the prosecutor’s role as an advocate for the state and are intimately
associated with the conduct of the judicial phase of the criminal process.’” Jameson
v. Montgomery, 22-01784, slip op. at 7 (La. 5/__/23) (quoting Knapper v. Connick,
96-0434, p. 10 (La. 10/15/96), 681 So.2d 944, 950). The majority opinion recognizes
“[t]he doctrine of absolute prosecutorial immunity evolved from the decision of the
United States Supreme Court in Imbler v. Pachtman , 424 U.S. 409 (1976).”
Jameson, 22-01784, slip op. at 8. However, as a civil law jurisdiction, Louisiana
court decisions should be based on statutory enactments, the primary source of law,

when statutory authority exists. See La. C.C. arts. 11 and 2;2 but see La. C.C. art. 4,3
which provides an exception if there is no applicable legislation or custom. Judicial
decisions are not generally intended to be an authoritative source of law in Louisiana.
Spencer v. Valero Refining Meraux, L.L.C., 22-00469, 22-00539, 22-00730, p. 1
(La. 1/1/23), 356 So.3d 936, 953 (Weimer, C.J., concurring) (citing Doerr v. Mobil
Oil Corp., 00-0947, p. 13 (La. 12/19/00), 774 So.2d 119, 128).
Louisiana C.C. art. 2315 is the fountainhead of civil liability, as it requires that
“(e)very act whatever of man that causes damage to another” be redressed by “him
by whose fault it happened.” See Lejeune v. Rayne Branch Hosp., 556 So.2d 559,
563 (La. 1990).
Louisiana R.S. 9:2798.1 addresses the immunity afforded to a “public entity”
and the employees of a public entity. The following are included in the list of public
entities: “the state and any of its branches, departments, offices, agencies, boards,
commissions, instrumentalities, officers, officials, employees, and political
subdivisions and the departments, offices, agencies, boards, commissions,
instrumentalities, officers, officials, and employees of such political subdivisions.”
La. R.S. 9:2798.1(A). Nothing in Section 2798.1 excludes the district attorney’s
office or the employees of the district attorney’s office from the provisions of the
statute. As recognized by the majority, immunity is statutorily provided “to ‘public
entities or their officers or employees based upon the exercise or performance or the
failure to exercise or perform their policymaking or discretionary acts when such acts
1 “The sources of law are legislation and custom.” La. C.C. art. 1.
2 “Legislation is a solemn expression of legislative will.” La. C.C. art. 2.
3 “When no rule for a particular situation can be derived from legislation or custom, the court is
bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and
prevailing usages.” La. C.C. art. 4.
2

are within the course and scope of their lawful powers and duties.’” Jameson,
22-01784, slip op. at 21 (quoting La. R.S. 9:2798.1(B)). However, immunity does not
apply when:
(1) ... acts or omissions ... are not reasonably related to the legitimate
governmental objective for which the policymaking or discretionary
power exists; or
(2) ... acts or omissions ... constitute criminal, fraudulent, malicious,
intentional, willful, outrageous, reckless, or flagrant misconduct.
La. R.S. 9:2798.1(C).
In their petition, the plaintiffs allege acts or omissions that “constitute ...
fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct.” The majority opinion discounts the applicability of La. R.S. 9:2798.1
to a district attorney’s office or its employee because the statute was enacted in 1985,
prior to Knapper, and was not applied in Knapper. However, these facts are not
determinative. The absence of a reference to Section 2798.1 in the Knapper case
does not evidence the legislature’s intent to exempt the district attorney’s office or its
employees from the provisions of Section 2798.1. As indicated, it is the language of
the statute, not the absence of the mention of a statute in a judicial decision, that must
be considered in determining the applicability of La. R.S. 9:2798.1. Possibly, the
applicability of the statute was simply not argued in Knapper or missed by the court.
The fact that 35 years has elapsed without the statute being applied to a district
attorney’s office or its employees is also not determinative. Based on a civil law
analysis, the only relevant factors in determining the applicability of Section 2798.1
in this case are the language of the statute and the facts alleged by the plaintiffs. In
our civil law system, an applicable statute is not rendered inapplicable or eradicated
simply because the statute is missed or ignored by courts or not argued by litigants.
3

A statute cannot be rendered inapplicable by case law unless the statute is declared
unconstitutional by a court.
Although La. R.S. 9:2798.1 does not entitle the assistant district attorney or
district attorney to absolute immunity under the facts alleged in the instant pleadings,
I nevertheless believe that the plaintiffs have failed to state a cause of action because
the law does not provide for a civil remedy in the form of damages for the court’s
failure to impose the sentence desired or requested by the victim and not relayed by
the assistant district attorney.
I am not insensitive to the wrong inflicted on the victim of this crime, and I
realize this ordeal has created distress. However, the criminal defendant, because of
his actions directed to a plaintiff, was punished by the court when a criminal sentence
was imposed. The system of justice does not entitle the victim to decide the sentence;
that is the obligation of the court. Clearly, the victim of a crime can and should have
input. However, ultimately, the question is whether compensatory damages should
be awarded if the assistant district attorney, for whatever reasons, fails to promote or
communicate the sentence expected by the victim. I do not find plaintiffs here are
entitled to such compensation or damages. Notably, not each and every type of
damage is legally compensable. Spencer, 22-00469 at 1, 356 So.3d at 953 (Weimer,
C.J., concurring). Here, the victim’s remedy relative to the district attorney’s office
instead lies at the ballot box.
Furthermore, it is challenging for the legal system to quantify damages for the
failure of a judge to impose a sentence preferred by the victim, regardless of the
actions of an assistant district attorney. For many of the same reasons articulated by
the majority for applying immunity for alleged damages, the alleged acts of the
4

assistant district attorney should not be legally compensable. I note that a civil suit
has been filed by the plaintiffs against the criminal defendant.
For these reasons, I respectfully concur with the majority’s sustaining of the
exception raising the objection of no cause of action.
5

S
UPREME COURT OF LOUISIANA
No
. 2022-CC-01784
G
ABRIELLE C. JAMESON AND KIM L. JAMESON WIFE OF/AND
BOBBY A. JAMESON
VS.
HONORABLE WARREN L. MONTGOMERY, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY AS THE DISTRICT ATTORNEY OF ST.
TAMMANY PARISH, IAIN DOVER, IN HIS INDIVIDUAL CAPACITY
AND UNDERWRITERS AT LLOYD'S LONDON A/K/A LLOYD'S
ILLINOIS, INC.
O
n Supervisory Writ to the 22nd Judicial District Court, Parish of St. Tammany
H
ughes, J., dissents in part.
T
he assistant district attorney was dishonest with both the victim and the
judge. These intentional dishonest acts were outside the course and scope of his
duties as an assistant district attorney. I would therefore deny the exception of no
cause of action as to the assistant district attorney.