to protect the public. Nevertheless, plaintiffs argue persuasively that the limits of this authority would be far exceeded if the defendants willfully distorted the facts, and proceeded with an intention to harass the plaintiffs or to violate their civil rights.
The present record does not provide a basis for deciding this issue. Rather, it must be left for trial to determine whether the defendants actually committed these acts in the manner charged by the plaintiffs, and if so, whether the proper limits of defendants' authority were thereby exceeded.
Perhaps more importantly, the issue of good faith must also be determined. The acts with which we are concerned here involved investigating, reporting, communicating with creditors, informing the public, and monitoring financial affairs. Surely, these activities are investigative and administrative in nature, rather than prosecutorial. As discussed earlier, when a prosecutor performs investigative or administrative functions, he is entitled only to a qualified immunity, and he must establish his good faith in order to escape liability. See Briggs v. Goodwin, supra; Helstoski v. Goldstein, supra. Indeed, the same conclusion was reached by Judge Bue in the Southern District of Texas when dealing with the substantially parallel activities of defendant Reed. C. M. Clark Insurance Agency v. Reed, supra, 390 F. Supp. at 1062-64. Like Judge Bue, I conclude that the question of defendants' good faith as to all their investigative and administrative functions presents an issue of fact which can only be determined at trial. See also Clark v. Lutcher, supra.
In light of these outstanding issues of fact, therefore, the motion of defendants Antoun, Cowley and Trulli for summary judgment must be denied in so far as it pertains to their investigative and administrative activities.
Some consideration must also be given to the substance of Proposed Findings Nos. 136 and 191. Although parts of these proposed findings are vague, they clearly charge the defendants with intimidating and threatening witnesses, as well as misleading the court through false or irrelevant information. If the plaintiffs are alleging that defendants' conduct was aimed at altering the witnesses' testimony, their claim would amount to a charge of subornation of perjury. In Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S. Ct. 1413, 39 L. Ed. 2d 471 (1974), the Court of Appeals for the Seventh Circuit held that such activity would clearly fall outside the scope of a prosecutor's quasi-judicial (absolute) immunity. 484 F.2d at 609, n. 9. Judge Bue in the Southern District of Texas interpreted this to mean that a prosecutor would be entitled to no immunity at all with regard to such an act. 390 F. Supp. at 1064. Once again, I hold that the issues of whether this conduct actually occurred at all, and if so, whether it is entitled to any immunity, must be determined at trial. Therefore, the motion for summary judgment by defendants Antoun, Cowley and Trulli with regard to these activities must also be denied.
Finally, I note that the allegations in Proposed Findings Nos. 46-48, 52, 68, 106, 147-149 and 179-190 relate solely to the conduct of defendant Wenrich. As discussed earlier, Wenrich is an insurance company examiner whose activities were confined to investigatory functions. As such, he is entitled only to the qualified immunity of other executive officials, and he must establish his good faith to avoid liability. Again, this is an issue best resolved at trial. The motion of defendant Wenrich for summary judgment, therefore, must be denied in all respects.
In summary, the trial of this matter will be limited to the plaintiffs' charges concerning the administrative and investigative activities of defendants Antoun, Cowley and Trulli, as well as the allegations that do not fall within any immunity category. No evidence will be heard regarding purely prosecutorial activities, as those activities have been defined above. In addition, evidence will be heard as to all the activities of defendant Wenrich.