STATE OF MINNESOTA

                                  IN SUPREME COURT

                                       A13-1967


Court of Appeals                                                                 Page, J.

Marcia Lee Stresemann, d/b/a Affiliated Counseling
Center, LLC,

                    Appellant,

vs.                                                                Filed: August 5, 2015
                                                               Office of Appellate Courts
Lucinda Jesson, Commissioner of the Minnesota
Department of Human Services, in her individual
and official capacity, et al.,

                    Respondents.

                              ________________________

John M. Degnan, Scott M. Flaherty, Briggs and Morgan, P.A., Minneapolis, Minnesota,
for appellant.

Lori Swanson, Attorney General, Scott H. Ikeda, Aaron Winter, Assistant Attorneys
General, Saint Paul, Minnesota, for respondents.

Richard C. Landon, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis,
Minnesota; and

Teresa J. Nelson, American Civil Liberties Union, Saint Paul, Minnesota, for amicus
curiae American Civil Liberties Union of Minnesota.
                             ________________________

SYLLABUS

      Prosecutorial immunity does not extend to an investigator whose conduct is not

intimately involved with the initiation and maintenance of criminal charges.



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      Reversed and remanded.

OPINION

PAGE, Justice.

      We granted review to answer the question “whether and under what circumstances

prosecutorial immunity protects a person who is not a prosecutor.” Appellant Marcia Lee

Stresemann is the sole owner of Affiliated Counseling Center, LLC (Affiliated).

Respondent Catharine Morton-Peters was the Chief Investigator for the Medicaid Fraud

Control Unit (MFCU) of the Minnesota Attorney General’s Office at the time the

relevant events in this case occurred. The MFCU has statutory authority to investigate

and prosecute suspected Medicaid fraud. See 42 U.S.C. § 1396b(q) (2012). In late 2011,

Morton-Peters began investigating Affiliated for Medicaid fraud.       As a part of the

investigation, Morton-Peters applied for and received a search warrant for Affiliated’s

premises. The warrant application included a request for patient files. The Fridley Police

executed the warrant and seized numerous documents from Affiliated’s office, including

patient files for non-Medicaid patients. Stresemann later sought to have certain files and

records returned. When the MFCU failed to return the files and records, Stresemann sued

Morton-Peters,1 alleging, among other claims,2 that Morton-Peters committed conversion



1
       Stresemann also sued Department of Human Services (DHS) Commissioner
Lucinda Jesson and DHS Manager Ron Nail. The claims against Jesson and Nail were
dismissed and are not before us in this appeal. Because there are no issues before us
relating to Jesson and Nail, their involvement in these proceedings will not be discussed
further.




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and trespass to chattels by losing and/or destroying some of Affiliated’s patient files.

Morton-Peters moved to dismiss, asserting that she was absolutely immune from civil

liability based on prosecutorial immunity. The district court found that Morton-Peters

was not entitled to prosecutorial immunity. 3 The district court reasoned that “there is no

evidence that any of the Defendants were involved in the filing and maintaining of any

charges against Plaintiffs.     As such, Defendants’ absolute immunity defense is

inapplicable to the present facts . . . as absolute immunity is narrowly applied to

individuals acting in a prosecutorial capacity.”

       Morton-Peters appealed, seeking interlocutory review of the denial of immunity.

The court of appeals reversed, concluding that Morton-Peters is entitled to prosecutorial

immunity because her challenged conduct was taken pursuant to her statutory authority to

investigate Medicaid fraud.      See Stresemann v. Jesson, No. A13-1967, 

, at *6-7 (Minn. App. Aug. 4, 2014). The court relied on Hyland v. State, 

 (Minn. App. 1993), rev. denied (Minn. Feb 24, 1994), for the

proposition that prosecutorial immunity extends to government employees whose actions

are taken pursuant to their statutory authority to investigate and prosecute statutory


(Footnote continued from previous page.)
2
       Stresemann’s amended complaint also alleged that Morton-Peters violated:
(1) 

, subd. 2 (2014); (2) 

 (2012); and (3) Article 1,
Section 10, of the Minnesota Constitution. These claims were dismissed on various
grounds, none of which are before us in this appeal.
3
     Morton-Peters also sought dismissal based on a number of other claims of
immunity. The district court rejected those immunity claims.


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violations. Id. at *6. Because we conclude that prosecutorial immunity does not extend

to an investigator when the investigator’s conduct is not intimately involved with the

initiation and maintenance of criminal charges, we reverse and remand to the court of

appeals for consideration of Morton-Peters’ remaining immunity claims.4

       The application of immunity is a question of law that we review de novo.

Schroeder v. St. Louis Cty., 

 (Minn. 2006). It is well established

that prosecutors are entitled to absolute immunity from civil liability “when acting within

the scope of their duties by filing and maintaining criminal charges.” Brown v. Dayton

Hudson Corp., 

 (Minn. 1981). Absolute immunity provides a

recipient with a “total shield from liability,” Harlow v. Fitzgerald, 

(1982), such that the recipient is immune from suit.5 See Linder v. Foster, 

, 

 (1940) (holding that when court-appointed physicians act within

the scope of their duties, those physicians receive absolute immunity and are thus

“immune from suit”). We commonly use the phrase “prosecutorial immunity” when

referring to the absolute immunity granted to prosecutors when they act within the scope

of their duties by filing and maintaining criminal charges.




4
      Because the court of appeals resolved the claim of prosecutorial immunity in
Morton-Peters’ favor, see Stresemann v. Jesson, No. A13-1967, 

, at *7
(Minn. App. Aug. 4, 2014), it did not reach her other immunity claims on appeal.
5
        Qualified immunity, in contrast, provides that a recipient is shielded from civil
liability so long as that recipient acted in “good faith.” See Elwood v. Cty. of Rice, 

 (Minn. 1988).


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      We first addressed the scope of prosecutorial immunity in Brown, 

. In Brown, we adopted the rule announced by the United States Supreme Court in

Imbler v. Pachtman, 

 (1976), that a prosecutor is absolutely immune

from civil suit for damages under Section 1983 so long as the prosecutor’s conduct is

“intimately associated with the judicial phase of the criminal process.” In Imbler, the

Supreme Court reasoned that prosecutorial immunity is necessary to preclude the

possibility “that harassment by unfounded litigation would cause a deflection 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.” 

. Leaving open the question of “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 advocate,” Imbler

limited its extension of prosecutorial immunity to the prosecutor’s role of “initiating a

prosecution and presenting the State’s case.” 

. Persuaded by this reasoning, we

concluded in Brown that “[t]he discretionary decision whether to charge and whether to

continue a prosecution lies at the very heart of the prosecutorial function.” 

. Consequently, we adopted “the majority rule that public prosecutors, when acting

within the scope of their duties by filing and maintaining criminal charges, are absolutely

immune from civil liability.” 

 We have not discussed the scope of prosecutorial

immunity since our decision in Brown.

      The Supreme Court revisited the scope of prosecutorial immunity in Burns v.

Reed, 

 (1991), in which it considered whether a prosecutor was entitled to


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absolute immunity for giving legal advice to police officers. 

. The Court held

that the prosecutor was not entitled to absolute immunity for that conduct because

“advising the police in the investigative phase of a criminal case” was not “intimately

associated with the judicial phase of the criminal process.” 

 at 493 (quoting Imbler,

). The Court rejected the argument that investigative activities are related

to the prosecutor’s role in screening cases for prosecution, reasoning that:

       Almost any action by a prosecutor, including his or her direct participation
       in purely investigative activity, could be said to be in some way related to
       the ultimate decision whether to prosecute, but we have never indicated that
       absolute immunity is that expansive. Rather, as in Imbler, we inquire
       whether the prosecutor’s actions are closely associated with the judicial
       process. Indeed, we implicitly rejected the United States’ argument in
       Mitchell [v. Forsyth, 

 (1985)] where we held that the Attorney
       General was not absolutely immune from liability for authorizing a
       warrantless wiretap. Even though the wiretap was arguably related to a
       potential prosecution, we found that the Attorney General “was not acting
       in a prosecutorial capacity” and thus was not entitled to the immunity
       recognized in Imbler.

Id. at 495-96 (citation omitted). The Supreme Court further clarified the parameters of

prosecutorial immunity in Buckley v. Fitzsimmons:

       There is a difference between the advocate’s role in evaluating evidence
       and interviewing witnesses as he prepares for trial, on the one hand, and the
       detective’s role in searching for the clues and corroboration that might give
       him probable cause to recommend that a suspect be arrested, on the other
       hand. When a prosecutor performs the investigative functions normally
       performed by a detective or police officer, it is “neither appropriate nor
       justifiable that, for the same act, immunity should protect the one and not
       the other.” Thus, if a prosecutor plans and executes a raid on a suspected
       weapons cache, he “has no greater claim to complete immunity than
       activities of police officers allegedly acting under his direction.”

 (1993) (citations omitted).




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      Persuaded by the reasoning in Burns and Buckley, we conclude that there is a

material difference between investigative functions normally performed by an

investigator or police officer and the prosecutorial functions of filing and maintaining

criminal charges. Consequently, we hold that prosecutorial immunity does not extend to

an investigator whose conduct is not intimately involved with the initiation and

maintenance of criminal charges.6 Here, the alleged conduct by Morton-Peters was not

intimately involved with the initiation and maintenance of criminal charges, and therefore

the court of appeals erred when it concluded that she was entitled to prosecutorial

immunity.7    Consequently, we reverse and remand to the court of appeals for

consideration of Morton-Peters’ remaining immunity claims.

      Reversed and remanded.



6
       The court of appeals has extended “prosecutorial immunity” to investigators in
two separate situations. In Barry v. Johnson, the court of appeals held that investigators,
when acting at the direction of a prosecutor, are entitled to prosecutorial immunity for
“investigations into [the] circumstances of alleged crimes.” 

 (Minn.
App. 1984), rev. denied (Minn. Sept. 12, 1984). In Hyland v. State, the court of appeals
extended the holding in Barry, and held that investigators are entitled to prosecutorial
immunity for investigations conducted pursuant to their statutory authority to investigate
and prosecute statutory violations. 

 (Minn. App. 1993), rev. denied
(Minn. Feb. 24, 1994). To the extent that the court of appeals’ decisions in Barry and
Hyland are inconsistent with our holding today, we overrule those decisions.
7
       Some of the arguments in Morton-Peters’ brief might be read as a request to
provide investigators with a form of absolute immunity that is separate and distinct from
“prosecutorial immunity.” We need not consider these arguments because Stresemann
petitioned for review on the specific and narrow issue of whether and under what
circumstances prosecutorial immunity protects a person who is not a prosecutor. See
George v. Estate of Baker, 

 (Minn. 2006) (“A petition for review to this
court must specify the legal issues to be reviewed.”).


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