dissenting.
The Michigan courts having recognized a distinction between immunity from suit and immunity from liability insofar as the sovereign immunity of the state is concerned, this case (which does not, of course, involve any issue of sovereign immunity) invites us to hazard a guess as to what the Michigan courts would say on the question whether individual judges and prosecutors are ever entitled, under Michigan law, to claim immunity from suit as opposed to mere immunity from liability. The views of my distinguished Michigan colleagues on such a question are far more authoritative than mine, but my guess is contrary to theirs.
In Yaselli v. Goff, 12 F.2d 396, 402 (2d Cir.1926), aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), where an Assistant United States Attorney was held to be immune from suit for malicious prosecution, the Court of Appeals quoted Judge Cooley, in “his great work on Torts” (3rd. Ed., Vol. 2, p. 795), to the effect that whenever the state confers judicial or prosecutorial powers upon individual judges or prosecutors, “it confers them with full immunity from private suits.”
Judge Learned Hand, writing for the same court in Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), agreed. The justification for such immunity from suit, Judge Hand wrote, is that “it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.”
Judge Hand’s words were quoted with approval by Judge Edwards in Williams v. City of Detroit, 364 Mich. 231, 261-62 n., 111 N.W.2d 1, 26 n. 4 (1961), and were repeated — again with evident approval — in Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641, 655 (1984). In discussing the rationale of Harlow v. Fitzgerald, 457 U.S. 800, 819,102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411, 424-25 (1985), this court recognizes in today’s opinion that “the federal doctrines of immunity include the entitlement to be free from the risks of trial itself....” The Michigan Supreme Court seems to capture precisely this thought in Ross when it states that “[individual immunity exists to ensure that a decision maker is free to devise, the best overall solution to a particular problem, undeterred by the fear that those few people who are injured by the decision will bring suit.” 363 N.W.2d at 666.
Not only does Ross explicitly recognize that individual immunity rests on the concept that officials should be free to conduct their business undeterred by the prospect that someone will “bring suit,” much less be allowed ultimately to prevail in a suit, Ross also quotes Judge Cooley — not his work on Torts, but his decision in Wall v. Trumbull, 16 Mich. 228 (1867) — as endorsing the “rule of very great antiquity that no action will lie against a judicial officer for any act done by him in the exercise of his judicial functions.... [W]herever [jurisdiction] appears and is not exceeded, the protection is complete.” 16 Mich, at 234 and 236, as quoted at 363 N.W.2d 664 (emphasis supplied).
The “complete” protection historically accorded judges and prosecutors, as the great jurist’s treatise makes clear, is immunity from suit — the kind of immunity that has long made a petition or complaint against a judge or prosecutor subject to immediate dismissal on demurrer where it charges such an official with tortious conduct in the exercise of his judicial or prose-cutorial powers. That is the kind of immunity recognized in Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395, supra, and Gregoire v. Biddle, 177 F.2d 579; supra, and I have difficulty in understanding why the courts of Michigan should now be thought likely to repudiate the reasoning of such cases and the clear teaching of Michigan’s own Judge Cooley. With respect, I am bound to say that I would have sup*176posed that Michigan law entitles prosecutors 1 not to stand trial for their official acts, and I would have allowed the interlocutory appeal here. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Cf. Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986).
. Under Michigan law, absolute immunity covers all judges but only the "highest" executive officials at any given level of government. Ross, 363 N.W.2d at 667. Historically, the absolute immunity enjoyed by judges has been thought to extend to prosecutors as well, at least in the exercise of certain prosecutorial functions. Whether deputy chief prosecutors have absolute judicial immunity under Michigan law, or absolute immunity as "high” executive officials, and whether the statement for which Mr. Sage must stand trial was made in the exercise of a function protected by either judicial or “highest executive” immunity, are all questions I need not reach in view of the court’s dismissal of the appeal.