FRANKFORT, Ind. (January 15, 2025) – The Indiana Court of Appeals is set to hear oral arguments Thursday in a case that raises critical questions about the scope of prosecutorial immunity. The case, Richard Kelly and Ashley Kelly v. Anthony Sommer, stems from a dispute between the Clinton County Sheriff, Richard Kelly, his wife, Ashley Kelly, and Clinton County Prosecutor, Anthony Sommer.
At the heart of the dispute is a meeting between Sommer and a local journalist, Brett Todd, during which Sommer allegedly provided a fake jail commissary report. The Kellys contend that Sommer acted maliciously and outside the scope of his prosecutorial duties, while Sommer maintains that he is immune from liability for actions taken in his official capacity.
The lower court sided with Sommer, dismissing the Kellys’ claims for defamation and intentional infliction of emotional distress. Now, the Court of Appeals will determine whether the lower court erred in its application of the law.
The Allegations and Lower Court Findings
The Kellys’ Amended Complaint alleges that Sommer initiated a criminal investigation into their operation of the county jail commissary, driven by personal and political motivations. They further claim that Sommer, in a meeting with journalist Brett Todd, knowingly provided Todd with an alleged fake commissary report, falsely stating that the report originated from the Kellys. This report, they allege, was intended to damage their reputation.
Sommer, however, argued that his actions were within the scope of his prosecutorial authority and that he was immune from liability under both common law and the Indiana Tort Claims Act (ITCA).
The lower court, while acknowledging the gravity of the allegations against Sommer, ultimately agreed with his immunity defense. The court granted Sommer’s motion to dismiss, finding that his actions were within the function of the Prosecutor’s Office and therefore protected, regardless of motive.
Significantly, the lower court found the Kellys’ allegations that Sommer provided a falsified document to journalist Brett Todd to be “very disturbing.”
“This is very disturbing to this Court and certainly could expose Defendant to possible criminal prosecution and/or severe disciplinary actions if proven,” wrote Boone County Judge Bruce Petit in April 2024. Nevertheless, the court concluded that, under Indiana law, prosecutorial immunity provides absolute protection even in cases of malicious or corrupt acts.
The Kellys Appeal
The Kellys appealed the lower court’s decision, focusing their arguments on two key points:
1. Sommer admitted to acting outside his prosecutorial function.
The Kellys highlight statements made by Sommer to Todd and WLFI News 18, asserting that these statements demonstrate he was not acting in his official capacity. Specifically, Sommer allegedly told Todd that he did not want to be recorded or quoted in any story, that he did not want to comment on the status of any investigation, and that no such investigation existed in his office.
2. The scope of Sommer’s employment under the ITCA is a question of fact.
The Kellys argue that Sommer’s admissions create a genuine dispute about whether his actions were within the scope of his employment as prosecutor. They contend that this question should be resolved by a jury, not dismissed as a matter of law.
The Kellys further argue that the lower court misapplied the “functional approach” to prosecutorial immunity by finding that Sommer could enjoy immunity while acting in his “personal capacity.” They contend that this conclusion contradicts established Indiana law and would effectively grant prosecutors limitless immunity.
Sommer’s Response
In his response brief, Sommer argues that the lower court correctly determined that he was acting within the scope of his employment as prosecutor. He emphasizes his duty to keep the public informed about investigations and his right to correct misrepresentations in the media. Sommer contends that his statements to Mr. Todd were made in furtherance of this duty.
Sommer also disputes the Kellys’ characterization of his statements to Todd, arguing that he never abandoned his role as prosecutor. He maintains that his statement about not prosecuting the Kellys simply acknowledged the likelihood of a special prosecutor being appointed in such a high-profile case.
Key Questions Before the Court of Appeals
The Court of Appeals will now grapple with several key questions:
Did Sommer’s statements to Todd, in which he disavowed any official investigation, place him outside the scope of his prosecutorial function?
The Kellys argue that these statements, combined with Sommer’s later admission that he was not providing an official statement about any investigation, demonstrate he was acting for personal reasons. Sommer, however, contends that his statements should be viewed in light of his overall duty to inform the public.
Did the lower court err in finding that Sommer could enjoy immunity even while acting in his “personal capacity?”
The Kellys argue that this conclusion contradicts Indiana law and would essentially eliminate any boundaries to prosecutorial immunity. Sommer counters that the lower court correctly applied the “functional approach,” which focuses on the nature of the action rather than the subjective intent of the actor.
Does the Kellys’ claim that Sommer knowingly provided a falsified document create a genuine issue of fact regarding the scope of his employment?
If so, should this question be resolved by a jury rather than through a motion to dismiss?
The outcome of this case could have a significant impact on the limits of prosecutorial immunity in Indiana. A ruling in favor of the Kellys would potentially narrow the scope of immunity, holding prosecutors more accountable for actions taken outside their official duties. A ruling in favor of Sommer, however, would reaffirm the broad protections afforded to prosecutors, even in cases where they are alleged to have acted maliciously or corruptly.
There is no timeline as to when the Court of Appeals will issue a decision after hearing oral arguments.
Note: the author of this article is the journalist referenced in the case.
