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Stewart v. District Attorney for the Eighteenth Circuit Court District for the State of Mississippi8/23/2005
II. WHETHER THE ACTIONS OF THE ASSISTANT DISTRICT ATTORNEY WAS WITHIN THE SCOPE OF HER DUTIES, AND THUS DISCRETIONARY, AND WERE HER ACTIONS OBJECTIVELY REASONABLE?
DISCUSSION
. In his second argument, Stewart presents the same argument as presented in his first. Stewart argues that by relaying his name and Social Security number to the legal authorities, the assistant district attorney exceeded the powers granted to her by Mississippi Code Annotated §§ 25-31-6 and 25-31-11.
Stewart expands on this argument by contending that the office of the district attorney is vicariously liable for the actions of its assistant district attorney and others working within its office, because the actions taken by the assistant district attorney were not discretionary, as defined by the Mississippi Tort Claims Act in Mississippi Code Annotated § 11-46-9(1)(d) (Rev. 2002), which states that:
(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused; . . . .
. In support of his argument, Stewart cites the case of Bridges v. Pearl River Valley Water Supply District, 793 So. 2d 584 (Miss. 2001), which held " n determining whether governmental conduct is discretionary the Court must answer two questions: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives." Id. at 588 ( ) (citing Jones v. Miss. Dep't of Transp., 744 So. 2d 256, 260 ( -10) (Miss. 1999)).
. Stewart has misapplied the test set forth in Bridges and Jones. In discussing the first part of this two-part test, Stewart simply alleges:
The statute creating the D.A.'s Office and legal assistants did not contain any authority or direction on assisting in the arrest of persons indicted for crimes. Therefore, the activity that Ms. Lowe and the secretary for the D.A.'s office were involved in[,] . . . giving information to law enforcement officers and assisting in the arrest of Gary Stewart[,] were not an activity that involved an element of choice or judgment.
Stewart then states that although the activity does not involve an element of choice or judgment, assuming the first part of the two-part test was met, that the second part was not met, as "the choice or judgment did not involve social, economic or political party alternatives." This test is misapplied, as the district attorney is directly charged with performing the conduct complained about which Stewart complains. Miss. Code Ann. § 25-31-11(1).
. As stated in Issue I, neither the district attorney's office nor any of its employees assisted in the actual arrest of Stewart. Rather, Stewart's identifying information contained in the indictments was given to the law enforcement officers so that Stewart could be apprehended. Mississippi Code Annotated § 25-31-6 (Rev. 2003), authorizes this conduct of the assistant district attorney, of which Stewart complains. Section 25-31-6 states as follows:
Legal assistants to district attorneys shall be regularly licensed and practicing attorneys having been duly admitted to practice before the supreme court of the State of Mississippi, and shall have the power and authority, under the direction and supervision of the district attorney, to perform all of the duties required of that office. (emphasis added).
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