CORRECTED: SEPTEMBER 22, 2016
RENDERED: SEPTEMBER 22, 2016
TO BE PUBLISHED

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GARY MARTIN ©Al_-U: ESELLANT. “m.m

ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2012-CA-001961
FRANKLIN CIRCUIT COURT NO. 07-CI-00820

 

STEPHEN O'DANIEL APPELLEE

AND

20 14-SC-000389-DG

MIKE SAPP APPELLANT
ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2012-CA-001961 '
FRANKLIN CIRCUIT COURT NO. 07-CI~00820

STEPHEN O’DANIEL APPELLEE

AND

2014-SC-000394-DG

BOBBY MOTLEY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2012-CA-001961
FRANKLIN CIRCUIT COURT NO. 07-CI-00820

STEPHEN O’DANIEL APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING
Appellants, Kentucky State Police officers Gary Martin, Mike Sapp, and
Bobby Motley (collectively, the Officers) appeal from the Court of Appeals’
opinion reversing the Franklin Circuit Court’s summary judgment Appellants
assert the Court of Appeals erred by l) interjecting federal 42 U.S.C. § 1983
malicious prosecution law into the analysis of a state malicious prosecution
claim, and 2) concluding that Appellants are not entitled to immunity from civil
liability in a malicious prosecution action. For reasons stated below, we affirm
the Court of Appeals but on slightly different grounds, and remand to the

Franklin Circuit Court for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND
Stephen O’Daniel is a retired Kentucky State Police (KSP) officer. He was

employed by the Justice and Public Safety Cabinet as Executive Director of the
Office of Investigations when he purchased what was purportedly a 1974
Chevrolet Corvette. After discovering that the vehicle was actually a 1975
Corvette, O’Daniel sought the assistance of Detective Riley of KSP’s stolen
vehicle division.

Riley confirmed for O’Daniel the vehicle had been stolen in 1981 nearly
twenty years before O'Daniel acquired it. Riley also informed O’Daniel that
after the owner of the stolen Corvette was paid for the loss by State Farm
Insurance Company his ownership interest in the car was transferred to State

Farm as a result of the settlement O’Daniel contacted State Farm to ascertain

2

its interest in the car and Was initially informed that State Farm claimed no
interest in it.1

O’Daniel then contacted the Jessamine County Court Clerk and with her
assistance, submitted an application for a new title to the car. Upon review of
the application, a Kentucky Department of Transportation title branch
manager suspected it may be fraudulent and contacted KSP. A criminal
investigation into O’Daniel’s application ensued, conducted by Appellants
Motley and Martin under the supervision of Appellant Sapp. The Justice
Cabinet’s General Counsel, Secretary, and Assistant Secretary got involved,
apparently in an effort to end the investigation or transfer it to local law
enforcement officials. Nevertheless, KSP maintained its control over the case

and the officers continued their investigation

The officers presented the results of the investigation to Franklin County
Commonwealth’s Attorney, Larry Cleveland. Cleveland expressed doubt about
the viability of bringing a criminal charge because proof of criminal intent
seemed to be lacking. He declined to prosecute, but citing an unspecified
conflict of interest, he asked the Kentucky Attorney General to assign a special
prosecutor to review the case, Jefferson County Commonwealth’s Attorney,
David Stengel, was appointed as special prosecutor. Stengel presented the

case, which included Martin’s testimony and some of the evidence collected by

 

1 State Farm later found records pertaining to its payment to its insured for the loss of
the car and would later assert a claim to it, leading O’Daniel to file an action in the
Jessamine Circuit Court for a declaratory judgment resolving the legal title to the
vehicle.

the officers, to the grand jury. The grand jury indicted O’Daniel for second-
degree forgery in connection with his application to secure a new title for the
Corvette. O’Daniel pled not guilty, and the case went to trial. The jury
acquitted him, and, soon thereafter, he brought a malicious prosecution action
against the officers in the Franklin Circuit Court.

The officers moved for summary judgment'seeking dismissal of
O’Daniel’s complaint, arguing that they were immune from civil suit for their
actions, and that as mere witnesses in O’Daniel’s criminal case, they were not
responsible for the “institution or continuation of original judicial proceedings”
as required by Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). They argued
that the criminal prosecution of O’Daniel was not conducted “by, or at the
instance of" the officers, as required by Raine.

The trial court granted summary judgment, holding that since the
officers had neither arrested O’Daniel nor filed a criminal complaint against
him, and because the special prosecutor had made the ultimate decision to
seek an indictment and to proceed with the prosecution, O’Daniel could not
establish that the criminal prosecution was instituted “by or at the instance of”
the officers, an essential element of the tort of malicious prosecution. The trial
court also concluded that summary judgment was required because the
officers were shielded from liability for malicious prosecution by the doctrine of
immunity as expressed by the United States Supreme Court in Rehberg v.

Pauzk, 132 s. ct. 1497, 1508 (2012).

0n appeal, the Court of Appeals reversed the summary judgment and
remanded the case to the trial court for further proceedings We granted
discretionary review, and for the reasons set forth herein, we affirm the Court

of Appeals.

II. ANALYSIS

A. The officers were not entitled to dismissal of the malicious prosecution
action on grounds of absolute immunity or qualified official immunity,

We begin this analysis by disposing of the question of whether police
officers enjoy the protections of either absolute immunity or qualified official
immunity for the activity alleged in O’Daniel’s malicious prosecution claim.
The trial court upheld the officers’ claim of immunity, citing Rehberg v. Paulk:.
Rehberg holds that because a grand jury witness’s testimony is absolutely
privileged, law enforcement officers (or any other grand jury witness) have
absolute immunity from lawsuits brought under 42 U.S.C. § 1983 based upon
their grand jury testimony. Id. at 1506. As explained in Rehberg, the scope of
immunity available to state government officials in a federal civil rights action
under § 1983 derives from the state’s common law immunity doctrine. Id. at
1 502.

Consistent with Rehberg, Kentucky’s common law protects grand jury
witnesses from civil suits predicated upon their testimony. “[I]t is a well-settled
rule in practically all jurisdictions that the [false] testimony of a witness given

in the course of a judicial proceeding is privileged and will not support a cause

of action against him.” Reed v. Isaacs, 62 S.W.3d 398, 399 (Ky. App. 2000)
(quoting McClar‘ty v. Bickel, 159 S.W. 783, 784 (Ky. 1913)).

In reversing the trial court, the Court of Appeals held that
Rehberg’s extension of absolute immunity to law enforcement officers for
grand jury testimony applies only in federal civil rights actions brought
under § 1983, and has no application to the instant case, We agree that
the officers are not immune from O’Daniel’s suit but for slightly different
reasons.

O’Daniel’s claim of malicious prosecution is not predicated simply upon
Martin’s grand jury testimony and the testimony of Motley and Sapp in
O’Daniel’s criminal trial. Rather, O’Daniel alleges that the officers engaged in a
wide range of activities to encourage and promote the indictment and
prosecution of O’Daniel, including the concealment of exculpatory evidence
from the prosecutor. The protection afforded to the officers by the doctrine of
immunity based upon their privileged testimony does not extend to the other
activities upon which O’Daniel’s claim of malicious prosecution is based. We
are aware of no doctrine that extends absolute immunity to such activities, and
notably, the parties have cited none.

The officers also claim they are covered by Kentucky’s doctrine of
qualified official immunity. We likewise find that defense to be
unavailable in a malicious prosecution action but for a more
fundamental reason. As explained in Yanero 1). Davis, qualified official

immunity is available only to officials acting in good faith. 65 S.W.3d

6

510, 522 (Ky. 2001) (“[W]hen sued in their individual capacities, public
officers and employees enjoy only qualified official immunity, which
affords protection from damages liability for good faith judgment calls
made in a legally uncertain environment.”).

Acting with malice and acting in good faith are mutually exclusive.
Malice is a material fact that a plaintiff must prove to sustain a malicious
prosecution claim. Raine, 621 S.W.2d at 899. But, it is also a fact that
defeats the defendant’s assertion of qualified official immunity. Official
immunity is unavailable to public officers who acted “with the malicious
intention to cause a deprivation of constitutional rights or other injury . .
. .” Yanero, 65 S.W.3d at 523 (quoting Harlow v. Fitzgerald, 457‘U.S. 800,
'815(1982y

It thus becomes apparent that the very same evidence that
establishes the eponymous element of a malicious prosecution action
Simultaneously negates the defense of official immunity. In simpler
terms, if a plaintiff can prove that a police officer acted With malice, the
officer has no immunity; if the plaintiff cannot prove malice, the officer
needs no immunity. v

Therefore, in the context of a malicious prosecution claim against
state law enforcement officers, the issue of qualified official immunity is
superfluous -The same would also be true with respect to any cause of
action predicated upon malice instead of negligence or some other basis

of liability. We agree with the officers’ assertion that qualified official

7

immunity is not limited to negligence actions But, while absolute
immunity will prevail even against acts that are maliciously motivated,
Morgan & Pottinger, Attorneys, P.S.C. 1). Botts, 348 S.W.3d 599, 601 (Ky.
2011), qualified official immunity yields to proof that a defendant’s
actions were malicious Consequently, when a plaintiff must prove
malice to sustain his cause of action, a defense of qualified official
immunity has little meaning and no effect.

Here, the officers were not entitled to summary judgment on the '
grounds of qualified official immunity because they did not show that
O’Daniel could not satisfy his burden of proving malice, which is an issue
of fact to be decided by the jury and may be inferred, or not, from the
absence of probable cause. Mosier v. McFarland, 269 Ky. 214, 106
S.W.2d 641, 642-643 (1937).

Accordingly, we affirm the opinion of the Court of Appeals with
respect to this issue.

B. The Court of Appeals correctly reversed the summary judgment but
remanded the case for reconsideration under an improper standard.

The Court of Appeals disagreed with the trial court’s application of the
phrase from Raine v. Drasin: “the institution or continuation of original judicial
proceedings . . . by, or at the instance of” the officers As witnesses and
investigators, the officers obviously did not “institute” the criminal proceeding
against O’Daniel; the grand jury and the prosecutor did. The more difficult
consideration is whether the prosecution of O’Daniel was instituted “at the

instance of” the officers The trial court’s conclusion that the officers could not

8

be held liable, as a matter of law, for malicious prosecution because they had
neither arrested O’Daniel nor sworn out a criminal complaint against him was
erroneous We therefore affirm the Court of Appeals’ reversal of the summary
judgment But, we further conclude for reasons set forth below that the Court
of Appeals remanded the case with improper directions for reconsideration

After struggling with the meaning of the “at the instance of” element of
malicious prosecution, the Court of Appeals remanded the matter to the trial
court with directions to consider the elements of malicious prosecution set
forth by the Sixth Circuit Court of Appeals in Sykes v. Anderson, 625 F.3d 294
(6th Cir. 2010).2 Of particular interest here is the following holding from
Sykes:

To succeed on a malicious-prosecution claim under § 1983 when
the claim is premised on a violation of the Fourth Amendment, a
plaintiff must prove the following: First, the plaintiff must show
that a criminal prosecution was initiated against the plaintiff and
that the defendant made, influenced, or participated in the decision
to prosecute,

625 F. 3d at 308 (internal citations and quotations omitted) (emphasis added).
The Court of Appeals also relied upon the decision of the United States
District Court for the Western District of Kentucky in Phat’s Bar and Grill v.

Louisz)ille Jefferson County Metro Government’s, 918 F. Supp. 2d 654 (W.D. Ky.

 

2 When the Court of Appeals entered its opinion, Raine v. Drasin remained the
controlling precedent delineating the elements of malicious prosecution claims in
Kentucky. While Sykes’ rendition of the elements of malicious prosecution in the
federal context provides useful context for interpreting and applying Raine, it differs
from Raine. For example, the federal standards cited in Sykes do not require proof of
malice,

2013). In Phat’s Bar, Judge John G. Heyburn applied Kentucky law in a
malicious prosecution claim against a Louisville police officer. Wrestling with
the meaning of Raine’s “by, or the instance of” language, Judge Heyburn
concluded: “The test for determining that the proceedings against plaintiff were
‘by, or at the instance, of the officer’, is whether the defendant ‘sets the
machinery of the law in motion.”’ Id. at 664 (citing McMaster v. Cabinet for
Human Resources, 824 F.2d 518, 521 (6th Cir. 1987), quoting First National
Bank of Mayfield v. Gardner, 376 S.W.2d 311, 316 (Ky. 1964)). The plaintiff
met the standard by producing evidence of the officer’s presence at meetings
with the prosecutor suggesting he had “aided in the prosecution’s decisions”
and thereby “participated in the decision to prosecute.” Id. at 661.

The phrase “at the instance of” is, at best, ambiguous, especially in the
context of examining the potential liability of police officers for their
participation in a criminal investigation that resulted in an indictment and
ultimately, an acquittal We granted discretionary review to address that
ambiguity. Although we agree that the Court of Appeals correctly determined
that the case must be remanded for reconsideration in the trial court, directing
the trial court to reconsider the matter under Sykes was improper. The
malicious prosecution standard cited in Sykes differs from the elements of
malicious prosecution set out in Raine, which was the prevailing authority

under Kentucky law.

10

C. The Raine articulation of malicious prosecution and the need for
revision.

Malicious prosecution is an ancient and well-established common law '
cause of action with a long history in Kentucky jurisprudence See Frowman v.
Smith, 16 Ky. 7 (Ky. 1800) (“A person discharged from a prosecution for felony,
without a trial on the merits, cannot, in an action for malicious prosecution,
require proof of probable cause, until he shows express malice.”); Campbell v.
Threlkeld, 32 Ky. 425 (Ky. 1834) (“An action for prosecuting a malicious suit, is
not sustained by mere proof, that the plaintiff in the suit complained of, was
defeated; the malice and want of probable cause, must also be shoWn.”).
Historically, the tort of malicious prosecution has been disfavored because it
runs contrary to the public policy supporting the exposure and prosecution of
criminal conduct Lexington Cab Co. v. Terrell, 137 S.W.2d 721, 724 (Ky.
1940). We express that disfavor by requiring strict compliance with the
prerequisites for maintaining a malicious prosecution action. Raine, 621
S.W.2d at 899 (citing Davis v. Brady, 291 S.W. 412 (Ky. 1927)). This
requirement of strict compliance is all the more reason for an unambiguous
articulation of the essential elements of a malicious prosecution claim.

The elements of malicious prosecution have remained substantively
unchanged over the past two centuries, but the language used to describe the
elements has varied from time to time. Raine v. Drasin provides the most
recent articulation of the tort’s elements, and as noted above, it is one which

requires clarification.

11

Raine identifies six elements of a malicious prosecution claim and

enumerates them as follows:

(1) the institution or continuation of original judicial
proceedings, either civil or criminal, or of administrative or
disciplinary proceedings;

(2) by, or at the instance, of the plaintiff [meaning defendant in
the malicious prosecution action];

(3) the termination of such proceedings in defendant’s [meaning
plaintiffs in the malicious prosecution action] favor;

(4) malice in the institution of such proceeding;

(5) want or lack of probable cause for the proceeding; and
(6) the suffering of- damage as a result of the proceeding

621 S.W.2d 895, 899 (Ky. 1981).3

An immediately apparent shortcoming of the Raine articulation is its
reference to “the plaintiff” in the underlying litigation. As noted in Raine’s first
enumerated element, a malicious prosecution claim may arise from civil
actions and criminal prosecutions Of course, in every underlying criminal
action, the “plaintiff” is the Commonwealth of Kentucky. Raine’s references to

actions instituted by or at the instance of “the plaintiff” is unnecessary and ill-

 

3 Raine unfortunately defines the elements of malicious prosecution with reference to
the parties’ status in the underlying action rather than the more conventional use of
their status as parties in the malicious prosecution action. Thus, Raine’s second
element, “by, or at the instance of the plaintiff,” actually refers to the defendant in the
malicious prosecution action. Likewise, the third element identified in Raine,
“termination of such proceedings in the defendant’s favor,” refers to the plaintiff in the
malicious prosecution action. Other states have avoided this confusion. See Parrott v.
Plowden Motor Company, 143 S.E.2d 607, 608 (S.C. 1965) (citing 34 Am. Jur.
Malicious Prosecution, Sec. 6, p. 706); Page v. Wiggins, 595 So. 2d 1291, 1293 (Miss.
1992). 52 Am. Jur. 2d Malicious Prosecution § 8 (2016) currently lists the elements of
a malicious prosecution claim, likewise defining the elements in terms of the parties’
status relative to the malicious prosecution, rather than the underlying action. See
generally Marchbanks v. Young, 139 P.2d 594, 597 (N.M. 1943) ( “It is a general rule
that in an action for malicious prosecution . . . the plaintiff must allege a termination
in his favor of the prosecution or suit complained of, 34 Am. Jur. Sec. 114, p. 771.”)
(internal quotation omitted). We prefer that convention and shall, henceforth, employ
it

12

suited to malicious prosecution cases arising from a criminal prosecution.
Trial courts applying Raine must accommodate that discrepancy, as Judge
Heyburn did in Phat’s Bar, substituting the word “officer” for “plaintiff” when
reciting the malicious prosecution elements 918 F. Supp. 2d at 664.

Raine’s first element is relatively easy to apply. The “institution” of a
judicial proceeding is, in the usual case, self-evident The second element,
whether the proceeding was instituted “by or at the instance of” the malicious
prosecution defendant is problematic because the meaning of “at the instance
of” is imprecise. The word “instance” used in that context is no longer a part of
the common English vernacular, and has become somewhat archaic. A general
search of Kentucky jurisprudence discloses that it has most often been used to
mean nothing more ardent than a simple request or suggestion.4

Raine cites Cravens v. Long, 257 S.W.2d 548 (Ky. 1953), as authority for
the essential elements of a malicious prosecution claim. lt is worth noting that
the Cravens court did not employ the “at the instance of” phrasing. Instead,
Cravens expressed the element as showing the defendant to be the “proximate
and efficient cause of putting the law in motion against the plaintiff.” Id. at

549. That terminology was echoed in Phat’s Bar, 918 F. Supp. 2d at 664.

 

4 See Nahm v. Aden, 1874 WL 6721 at *2 (Ky. Sept. 26, 1874) (“The court, at the

instance of appellant defined ‘probable cause’ . . . .”); Calvert 1), Brown & Williamson
Tobacco Co., 465 S.W.2d 75, 76 (Ky. 1971) (“Dr. Paul J. Ross . . . had examined
appellant (at the instance of her own physician) . . . .”); Henderson v. Commonwealth,

507 S.W.2d 454, 458 (Ky. 1974) (“On the day of the trial an appropriate ofiicer . . .
appeared in response to a subpoena duces tecum issued at the instance of
Henderson’s counsel . . . .”). See also Branham v. Berry, 4 Ky. L. Rptr. 412, 413 (Ky.
Superior Oct. 2, 1882) (“It does not appear at whose instance the qualification was
appended [to the malicious prosecution jury instructions].”).

13

Numerous other cases preceding Raine did the same. See, e.g., Ballard 1).
Cash, 230 S.W. 48, 48-49 (Ky. 1921) (“It is thoroughly established in this state,
at least, that a cause of action for malicious prosecution accrues, the other
necessary elements being present, as a result ‘of putting the law in motion’
against the plaintiff . . . .”); Cook v. Bratton, 181 S.W. 1108, 1109 (Ky. 1916)
(“[T]o sustain an action for malicious prosecution it must affirmatively appear .
. . that the defendant was the proximate and efficient cause of putting the law
in motion against the plaintiff in the action.”); and McClarty v. Bickel, 159 S.W.
7 83, 784 (Ky. 1913) \(“To sustain an action for malicious prosecution, it must
affirmatively appear . . . that the [defendant] was the proximate and efficient
cause of maliciously putting the law in motion.”).

Grau v. Forge differentiated malicious prosecution from false
imprisonment with this explanation:

Suits for false arrest and imprisonment are very similar in their
nature to those for malicious prosecution. The chief difference in
the two cases consists in the persons proceeded against In the
one case the defendant is the person making the arrest, while in
the other he is the one who sets the law in motion and causes the
arrest to be made,

209 S.W. 369, 371 (Ky. 1919) (emphasis added).

Perhaps the most persistent description of the element to appear in our
early jurisprudence is that the defendant “procured” the prosecution of the
plaintiff. As early as 1818, Carrico v. Meldrum, 8 Ky. 224, 224 (Ky. 1818),

stated, “In a declaration for malicious prosecution, the only material allegations

14

are, that the prosecution was procured by defendant maliciously and without
probable cause.” (Internal quotation marks omitted, emphasis added.)
Wood 1), Weir, 44 Ky. 544, 550 (Ky. 1845) provided:

Upon the whole, we think that the order . . . was procured without
probable cause or legal excuse, and that from the want of probable
cause or excuse, connected with the oppressive and illegal terms
exacted in the bond, unaccounted for or explained, malice might
and should have been implied by the jury, and the plaintiff has
sustained damages to some amount

(Emphasis added.)

Branham v. Berry, 4 Ky. L. Rptr. 412, 413 (Ky. Superior Oct. 2, 1882)5,
approved jury instructions providing that in order to find the defendant liable
for malicious prosecution, the jury must believe that he “did cause the
plaintiff"s arrest and prosecution, or procured [the co-defendant] to do so.”

(Emphasis added.)

Roberts v. Thomas, 121 S.W. 961, 962 (Ky. 1909) states: “The person who
procured the warrant to be issued and thus caused the arrest is liable to an

action for malicious prosecution if he acted with malice and without probable

cause.” (Emphasis added.)

 

5 Citations to Kentucky’s Superior Court are now unusual. The Superior
Court was a three-judge, intermediate-level appellate court formed by the
General Assembly in 1882 pursuant to authority granted by Kentucky’s Third
Constitution (1850-1892), to relieve a perceived backlog of cases pending before
the Court of Appeals, then Kentucky’s highest court, See Kurt X. Metzmeier,
Selected Works of Kurt X. Metzmeier, History of the Courts of Kentucky,
University of Louisville (December 2006.)

15

Prior to Raine, the phrase, “at the instance of” used in connection with
an arrest appears in several cases Meyer z). Louisville, St. L. & T. Ry. Co., 33
S.W. 98, 98 (Ky. 1895) (“The appellant was a conductor on a freight train of the
appellee, and was arrested . . . at the instance of the company . . . .”); Dean v.
Noel, 70 S.W. 406, 407 (Ky. 1902) (“The petition alleges that at the instance of
appellant-the warrant was issued, the arrest made, and trial had before the
police judge, who held him to answer to the circuit court . . . . This affidavit or
answer admits that appellee was arrested at the instance of appellant . . . .”).
ln context, these examples seemingly connote an activity no more insistent or
compelling than a simple request

In First National Bank of Mayfield v. Gardner, 376 S.W. 2d 311, 315 (Ky.
1964), our predecessor Court observed that Kentucky’s malicious prosecution
law in cases arising from an underlying civil action was consistent with
Restatement of Torts § 674, which it cited as:

One who initiates or procures the initiation of civil proceedings

against another is liable to him for the harm done thereby, if

(a) the proceedings are initiated

(i) without probable cause, and

(ii) primarily for a purpose other than that of securing the

adjudication of the claim on which the proceedings are based, and

(b) except where they are ex parte, the proceedings have

terminated in favor of the person against whom they are brought
Gardner also reiterated Section 674’s explanation that:

The person who initiates civil proceedings, is the person who sets

the machinery of the law in motion whether he acts in his own

name, or in that of a third person, 'or whether the proceedings are
brought to enforce a claim of his own, or that of a third person.

16

Id. at 316. Notably, Raine also relied upon Section 674, which by then had
been incorporated, unchanged, into the Restatement (Second) of Torts § 674
Wrongful Use of Civil Proceedings (1977).

Raine substituted the “by, or at the instance of" terminology in place of
the more conventional phrasing found in the Restatement and in earlier
Kentucky decisions Our review persuades us that the Raine court did not
intend to alter the traditional elements of the tort by changing the activity upon
which liability may be predicated As demonstrated above, our courts over the
ages have expressed the element in different terms without substantively
changing its meaning. Given the lack of clarity inherent in Raine’s use of “at
the instance,” we find it advantageous to revert to the more widely recognized
language of the Restatement as it is entirely consistent with our historical
application of the tort of malicious prosecution.

The Restatement (First) of Torts and the Restatement (Second) of Torts
provide separate sections to explain malicious prosecution claims arising out of
civil litigation and those arising from criminal prosecutions, although the
essential elements of the two are virtually the same. Our review of Kentucky
malicious prosecution law discloses that we have not differentiated malicious
prosecution claims that arise from a prior civil action from those arising out of
a criminal prosecution. Raine adhered to that tradition and we see no reason
to depart from it

Restatement (Second) of Torts § 653 Wrongful Prosecution of Criminal

Proceedings (Malicious Prosecution) (1977) provides:

17

A private person who initiates or procures the institution of
criminal proceedings against another who is not guilty of the
offense charged is subject to liability for malicious prosecution if
(a) he initiates or procures the proceedings without probable cause
and primarily for a purpose other than that of bringing an offender
to justice, and

(b) the proceedings have terminated in favor of the accused.6

Restatement (Second) of Torts § 674 Wrongful Use of Civil
Proceedings (1977) provides:

One who takes an active part in the initiation, continuation or
procurement of civil proceedings against another is subject to
liability to the other for wrongful civil proceedings if

(a) he acts without probable cause, and primarily for a purpose
other than that of securing the proper adjudication of the claim in
which the proceedings are based, and

(b) except when they are ex parte, the proceedings have terminated
in favor of the person against whom they are brought

We see no substantive difference between Sections 653 and 674. Both
predicate liability upon the defendant’s role in initiating or procuring the prior
litigation; both require the lack of probable cause; both require a showing that
the defendant acted primarily for a purpose other than the proper adjudication
of the underlying action, which is the essence of malice; and, both require a
termination of the underlying claim in favor of the malicious prosecution

plaintiff.7 The Restatement’s articulation of the tort,_ consistent with the history

 

6 Section 653’s reference to “private person” can be read as excluding of public
ofiicials, including police officers, from liability for malicious prosecution. Such an
exclusion has never been the law in Kentucky.

7 Section 674(b) notes an exception to the “favorable termination” requirement ex
parte civil proceedings initiated or procured by a malicious prosecution defendant

` 18

of the tort in Kentucky, captures all of the elements cited in Raine but does so
in a simpler, more comprehensible manner.
D. The revised articulation of the elements of malicious prosecution
Consistent with our established tradition, our adaptation of the
Restatement terminology is merged into a single statement applicable to
malicious prosecution claims arising from either civil or criminal proceedings
or administrative disciplinary proceedings We hereby abrogate our expression
of the malicious prosecution elements set out in Raine 1). Drasin in favor of the
following articulation. A malicious prosecution action may be established by
showing that:
1) the defendant initiated, continued, or procured a criminal or
civil judicial proceeding, or an administrative disciplinary
proceeding against the plaintiff ;
2) the defendant acted without probable cause;
3) the defendant acted with malice, which, in the criminal context
means seeking to achieve a purpose other than bringing an
offender to justice; and in the civil context means seeking to
achieve a purpose other than the proper adjudication of the
claim upon which the underlying proceeding was based;
4) the proceeding, except in ex parte civil actions, terminated in

favor of the person against whom it was brought; and
5) the plaintiff suffered damages as a result of the proceeding,

Under the solidly-established principles of the tort of malicious

prosecution as it developed in Kentucky, “procuring” a criminal or civil judicial

 

need not have terminated in favor of the malicious prosecution plaintiff, presumably
because the plaintiff would not have had an opportunity to participate in such
adjudication. We are aware of no cases in which this exception has been applicable.
An ex parte action for a restraining order under CR 65 would be an example of such
an adjudication.

19

proceeding is synonymous with “being the proximate and efficient cause of
putting the law in motion against another person.”

In the instant case, the trial court rejected O’Daniel’s claim and granted
the summary judgment because none of the defendant officers had “instituted”
the criminal charges against O’Daniel by arresting him, by filing of a criminal
complaint against him, or by indicting him. We conclude, however, that
“procuring” the criminal proceeding would encompass a wider range of conduct
than allowed by the trial court Certainly, it would include O’Daniel’s claim
that the officers induced the prosecutor to commence the proceedings by
providing him with inaccurate, false, and misleading information.

Accordingly, we affirm the Court of Appeals insofar as it reversed the
summary judgment and remanded the case for renewed consideration.
However, upon remand, we direct the trial court to reconsider the officers’
motion for summary judgment based upon the articulation of the elements of

malicious prosecution set forth herein.

III. CONCLUSION

For the reasons set forth herein, we affirm the opinion of the Court of
Appeals and remand this matter to the Franklin Circuit Court for further

proceedings consistent with this opinion.

Minton, C.J.; Hughes, Noble§ and Wright, JJ.', concur. Cunningham, J.,
dissents by separate opinion in which Keller, J., joins

CUNNINGHAM, J., DISSENTING: I respectfully, but forcefully dissent

20

One would have to live on the dark side of the moon today to not know
the following, unfortunate truth. Law enforcement officers are under siege.
Today, with our majority opinion, we break down a lawful barrier that protects
these brave men and women from frivolous and unwarranted lawsuits From
henceforth, our detectives and police officers must look over their right
shoulder for physical danger, and over their left shoulder for time consuming
and emotionally draining lawsuits With this extra distraction impeding their
steps, our state becomes less safe.

To begin with, the majority needlessly tinkers with the elements of
malicious prosecution enumerated in the seminal case of Raine v. Drasin, 621
S.W.2d 895, 899 (Ky. 1981). We could easily refine Raine by ways I will not
belabor here. The majority’s adoption of the Restatement’s definition of the
elements of malicious prosecution resurrects the element of “procurement”
from the annals of our nineteenth century jurisprudence I’m afraid it will
prove problematic.

However, even if we apply the new criteria adopted by the majority for
malicious prosecution, there are no genuine issues of material fact at issue
here.

The officers never filed a criminal complaint or issued a citation against
O’Daniel. They did not arrest him, nor did they procure an arrest warrant
The charge here was instituted by an indictment returned by the grand jury

upon submission of the matter by the special prosecutor.

21

O’Daniel contends that the officers engaged in “prosecutor shopping,
willful insubordination toward orders from the Justice Cabinet, and intentional
withholding of exculpatory evidence from O’Daniel in the criminal case.”
Because l urge this Court to determine whether the officers “urgently solicited
or insisted” that the prosecutor proceed with procuring an indictment I am
primarily concerned with what O’Daniel labels “prosecutor shopping.” More
precisely, I am concerned with the officers’ contact with the Franklin County
Commonwealth Attorney and the special prosecutor-prior to O’Daniel’s
indictment To further clarify, O’Daniel’s allegations of insubordination and
withholding of evidence are relevant here only to the extent that they relate to
the officers’ solicitation or insistence that the case proceed to the grand jury.

Our courts need to protect the public from abusive and unlawful police
practices We do not need to place a chilling and restrictive hand upon the
shoulders of law enforcement officers who are passionate and energetic in their
duties

lt is also important to note that the investigation of O’Daniel began only
after a Department of Transportation employee notified the Kentucky State
Police that she believed O’Daniel’s vehicle registration application was
fraudulent When their investigation was complete, the officers visited
Franklin County Commonwealth Attorney Larry Cleveland. Mr. Cleveland
advised them that O’Daniel and the general counsel for the Justice Cabinet had

been to see him earlier in the day. This created a conflict for him to stay on the

22

case. O’Daniel left a notebook with Mr. Cleveland which O’Daniel believed
supported his actions Mr. Cleveland gave that notebook to the officers

Sometime thereafter, Mr. Cleveland wrote the Attorney General to
“request the appointment of a special prosecutor with respect to an
investigation by the Kentucky State Police involving Steve O’Daniel . . . .” The
Attorney General accepted Mr. Cleveland’s request and appointed Jefferson
County Commonwealth Attorney, David Stengel, to the position. Mr. Stengel’s
deposition testimony in the present case is dispositive.

Mr. Stengel testified that it was his sole decision to present the
Commonwealth’s case against O’Daniel to the grand jury. Critically, Mr.
Stengel also testified as follows:

Counsel: Was there ever an occasion to where any of the state

police officers insisted that this grand jury presentation go

forward? (Emphasis added).

Mr. Stengel: No, sir, they just wanted what they -- I think what
they expressed to us is they wanted an independent eye to look at
it because they did not like the reason they got from Mr. Cleveland.

(Emphasis added).

In going to the prosecutors, the Appellants only wanted “an independent
eye” to look at the case. Yet, they remain twisting in the wind years later under

the oppressive lawsuit of malicious prosecution.

23

In response to additional questioning by vMajor Sapp’s attorney, Mr.
Stengel indicated that given the facts and the case with which he was
presented, he believed there was sufficient probable cause to go forward to the
grand jury. lt is noteworthy that Mr. Stengel had reviewed O’Daniel’s
notebook, which O’Daniel believed supported his own actions, and found no
evidence dissuading his decision to move forward with the case. The record
also indicates that upon the advice of his co-counsel, Tom Van DeRostyne, Mr.
Stengel decided to charge O’Daniel with second-degree forgery. There is no
evidence indicating that the officers participated in selecting that or any other
charge.

Based on this evidence, it is clear that the officers did not urgently solicit
or insist that either Mr. Cleveland or Mr. Stengel proceed with procuring an
indictment At most the officers believed the case was worth “an independent
eye to look at . . . .” Therefore, I cannot conclude that the criminal proceedings
were instituted by the officers, or at the instance of the officers Raine, 621
S.W.2d at 899.

Even when applying the majority’s “procurement” standard, the officers
are entitled to summary judgment in their favor based on the aforementioned
evidence.. For example, the majority presents an exhaustive account of the
legal evolution of malicious prosecution yet provides only a fleeting reference to
the relevant facts of the present case. More precisely, the majority holds that
procuring a criminal proceeding “would encompass a wider range of conduct

than allowed by the trial court.” The majority then concludes that such

24

conduct “would include O’Daniel’s claim that the officers induced the
prosecutors to commence the proceedings by providing him with inaccurate,
false, and misleading information.”

Contrary to the majority’s unsupported assumption, there is nothing in
the record indicating that the officers urgently solicited, insisted, or procured
this prosecution. Unless, of course, speaking with prosecutors concerning an
open investigation is sufficient evidence of procurement Every prosecution
necessitates a dialog between law enforcement officers and the prosecutor.
Thus, it is unwise and unjust to hold that evidence of any and every such
congress, no matter how benign, is sufficient to overcome the defendant’s
motion for summary judgment Yet that will be the result of the majority’s
decision here.

In addition to there being no evidence indicating procurement O’Daniel
has failed to prove malice and the absence of probable cause. Not only did the
grand jury findprobable cause to indict but the trial judge found sufficient
evidence for the case to go to the jury. Even when applying the new malicious
prosecution standard cited by the majority, there is no evidence that the
officers acted without probable cause or acted with malice. The latter requires
“seeking to achieve a purpose other than to bring an offender to justice.” There
is no evidence whatsoever indicating malice.

Furthermore, l find nothing in the record indicating that the officers
intentionally withheld any evidence, As previously discussed, Mr. Stengel

testified that given the facts and the case with which he was presented, he

25

believed there was sufficient probable cause to go forward to the grand jury.
Therefore, it is irrelevant for the purposes of the present case whether, prior to
proceeding with the indictment Mr. Stengel was informed of all the evidence
later introduced at trial. And while there is some evidence indicating that high
ranking Justice Cabinet officials ordered KSP to release O’Daniel’s car from
impound and to turn over the case to local authorities, it is unclear whether
the officers involved here received such orders, specifically Major Sapp’s
subordinates Sergeants Martin and Motley. l

The majority correctly takes note that “[h]istorically the tort of malicious
prosecution has been disfavored.” This nearly ten-year-old case is a “poster
child” as to why. Therefore, I respectfully suggest that the majority’s
conclusion is misguided and does a great injury to our law enforcement
officers

In short if summary judgement was not warranted in this case, it strains
my imagination to conjure a situation where it would be. With this decision
our Court virtually eliminates the possibility of summary judgment on behalf of
officers in malicious prosecution cases The police officer, already burdened
with heavy life and death responsibilities, will always be exposed to a jury when
acquitted defendants file malicious prosecution lawsuits The criminal
defendant and the conscientious police officer will merely trade seats in the
court room.

Therefore, I vigorously dissent

Keller, J . , joins

26

COUNSEL FOR APPELLANTS:

William E. Johnson
Johnson Bearse, LLP

Lyndol Scott Miller
Frankfort KY 40601

Heidi Beth Engle
Charles Johnson
Johnson and Engle, PSC

COUNSEL FOR APPELLEES:

Thomas E. Clay
Andrew Thomas Lay
Clay Daniel Walton & Adams, PLC

COUNSEL FOR AMICUS CURIAE KENTUCKY ASSOCIATION OF COUNTIES,
INC.:

Walter Michael Troop
Attorney At Law

John Estill
Fox, Wood, Wood & Estill

Timothy A. Sturgill
Kentucky Association of Counties, lnc., General Counsel

v COUNSEL FOR AMICUS CURIAE KENTUCKY SHERIFFS' ASSOCIATION, INC.:

Walter Michael Troop
Attorney At Law

John Estill
Fox, Wood, Wood & Estill

27

Supreme Tuurf of Kentucky

2014-SC-000373-DG

GARY MARTIN

ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2012-CA-001961
FRANKLIN CIRCUIT COURT NO. 07-Cl-00820

STEPHEN O'DANIEL

AND

20 l4-SC-000389-DG

MIKE SAPP
ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2012-CA-00196l
FRANKLIN CIRCUIT COURT NO. 07-CI-00820

STEPHEN O’DANIEL

AND

2014~SC-000394-DG

BOBBY MOTLEY
ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2012-CA-001961
FRANKLIN CIRCUIT COURT NO. 07-CI-00820

STEPHEN O’DANIEL

APPELLANT

APPELLEE

APPELLANT

APPELLEE

APPELLANT

APPELLEE

CRDER CORRECTING
The Opinion of the Court by Justice Venters rendered, September 22,
2016 is substituted in full to correct: The vote line on page 20 which should
read: Minton, C.J.; Hughes, Noble, and Wright, JJ., concur. Cunningham, J.,
dissents by separate opinion in which Keller, J., joins Said correction does not

affect the holding of the original Opinion of the Court

l :_¢<_éIEF JUSTICE z

ENTERED: September 22, 2016.

 

