dissenting.
This case is on remand from the United States Supreme Court for further consideration in light of Burns v. Reed, 500 U.S. -, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). In the prior Cooney opinion we held that all of a deputy county attorney’s activities entitled him to absolute immunity in the probationer’s civil rights action against him. We found that procuring a perjured probation revocation petition, assisting the Wyoming Department of Probation and Parole and its probation officer, using the perjured probation revocation petition to obtain a bench warrant for the probationer’s arrest and causing the probationer to be arrested and detained in jail for thirty-eight days were the functional equivalent of the prosecutor’s role as an advocate in a criminal proceeding. Cooney v. Park County, 792 P.2d 1287 (Wyo.1990), vacated and remanded sub. nom. Cooney v. White, 500 U.S. -, 111 S.Ct. 2820, 115 L.Ed.2d 965 (1991). In reaching our decision we relied on Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); and our own Blake v. Rupe, 651 P.2d 1096 (Wyo.1982), cert. denied, 459 U.S. 1208, 103 S.Ct. 1199, 75 L.Ed.2d 442 (1983). In Blake this court applied Imbler and numerous federal court decisions decided in the intervening years. Thus, we held that the deputy county attorney’s challenged activities involved in the attempted revocation of the probationer’s probation were “intimately associated with the judicial phase of the criminal process and [were] functions to which the reasons for absolute immunity apply with full force.” Cooney, 792 P.2d at 1298.
After due consideration of supplemental briefs filed by the parties, I have concluded that Burns does not dictate a contrary result. I would reaffirm this court’s prior decision in all respects.
This court’s reconsideration of Cooney proceeds on the assumption that the United States Supreme Court’s order vacating and remanding this case should not be read as implying that Burns necessarily mandates reversal. We understand “in this type of remand that the Court has merely ‘flagged’ this case as one upon which the intervening decision may have some bearing, but which the Court has not conclusively determined to be materially affected thereby.” Bush v. Lucas, 647 F.2d 573, 575 (5th Cir.1981), cert. granted, 458 U.S. 1104, 102 S.Ct. 3481, 73 L.Ed.2d 1365 (1982), aff'd, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); see also A. Heilman, Granted, Vacated, and Remanded, 67 Judicature 389, 395 (1984); and Robert L. Stern, Eugene Gress-man and Stephen M. Shapiro, Supreme Court Practice 279-80 (6th ed. 1986).
The facts of the case are adequately set out in Cooney, 792 P.2d 1287, and will not be repeated here. Nothing in Bums affects or casts doubt upon that part of our decision in Cooney in which we affirmed the trial court’s dismissal of the Cooneys’ claims alleging liability under the Wyoming Governmental Claims Act, Wyo.Stat. § 1-39-101 through 108 (Cum.Supp.1985) against the State of Wyoming, the Wyoming Department of Probation and Parole, and Robert Mayor, because no waiver of immunity under the Claims Act to those parties could be found. Burns only requires that we focus on the level of immunity, absolute or qualified, to which the deputy county attorney is entitled under *372the circumstances pleaded in the Cooneys’ civil rights complaint.
Burns is distinguishable from Cooney. In Burns, the police were investigating the shooting and wounding of Mrs. Burns’ two sons while they slept in her house. Despite Mrs. Burns’ repeated denials, passing a polygraph examination and a voice stress test, and submission of exculpatory handwriting samples, the police viewed her as a primary suspect. Conjecturing that she had multiple personalities, one of which did the shooting, the police wanted to place her under hypnosis and interview her. Concerned that this might be a legally unacceptable investigative technique, the police sought and obtained deputy prosecutor Reed’s advice to proceed with an interview under hypnosis. Under hypnosis, Mrs. Burns referred to the shooter and herself by the same name, “Katie,” which the police believed supported their theory. Detaining Mrs. Burns at the police station, the police again sought deputy prosecutor Reed’s advice whether probable cause to arrest her existed. Based upon Mrs. Burns’ statements under hypnosis, deputy prosecutor Reed told the police there existed probable cause for arrest. Acting on that advice the police arrested her. The next day, deputy prosecutor Reed and one of the investigating policemen appeared at the probable cause hearing, held by a county court judge, seeking to obtain a search warrant for Mrs. Burns’ house and car. In response to deputy prosecutor Reed’s questioning, the investigating policeman testified that Mrs. Burns had admitted the shooting. Neither the policeman nor the deputy prosecutor told the judge about the interview under hypnosis or Mrs. Burns’ previously repeated denials. Misled, the judge issued a search warrant. The prosecutor’s office charged Mrs. Burns with attempted murder. Before trial, the trial judge granted her motion to suppress the statements made under hypnosis. The prosecutor’s office dismissed all charges. A few years later, Mrs. Burns filed a civil rights action under 42 U.S.C. § 1983 against deputy prosecutor Reed and others. In the trial against the deputy prosecutor, the trial court granted that official a directed verdict, holding that he was absolutely immune from liability. On appeal, the Seventh Circuit Court of Appeals affirmed. The United States Supreme Court granted certiorari.
In its decision, the Supreme Court held that deputy prosecutor Reed was absolutely immune from. § 1983 liability for his conduct during his appearance as the state’s lawyer in the probable cause hearing. As for his conduct in providing legal advice to the police in the investigative phase of the criminal case, however, the Supreme Court held that conduct was not so intimately associated with the judicial phase of the criminal process as to qualify for absolute immunity. According to the Supreme Court, “absolute prosecutorial immunity [is justified] only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.” Burns, — U.S. at -, 111 S.Ct. at 1943.
While I can understand that deputy prosecutor Reed’s giving legal advice to the police during the investigative, pre-arrest stage of the criminal process is not action “connected with the prosecutor’s role in judicial proceedings,” that is not the prose-cutorial action of which the Cooneys complain here. Instead, they complain of deputy county attorney White’s activities in the initiation and pursuit of probation revocation proceedings. In our prior opinion, we reviewed the nature and substance of the imposition, supervision and revocation of probation under Wyoming law. We explained the sentencing judge’s detailed involvement in that phase of the criminal process. Cooney, 792 P.2d at 1293-94. We also explained the role of the prosecuting attorney to assist the sentencing judge both in the latter’s consideration whether to grant probation to an offender and the latter’s consideration whether to retake or reincarcerate a probationer who allegedly has violated a condition of probation. Id. Importantly, we observed that although “[a] probation revocation hearing is not a trial on a new criminal charge,” it is “an extension of the sentencing procedure resulting from conviction of the basic charge *373* * Cooney, 792 P.2d at 1294 (quoting from Minchew v. State, 685 P.2d 30, 31 (Wyo.1984)). Moreover, we said:
[F]rom the granting of probation through the supervision of probation to the revocation of probation, the sentencing judge has continuing jurisdiction over the probationer during the sentencing stage of the criminal proceeding. Without a doubt, this sentencing stage is an integral part of the judicial phase of the criminal process. We emphasize and add to that said earlier: “The supervision of probation through his probation officers [and, we would add, the county attorney] is one of the most important duties performed by the trial judge.” Smith [v. State, 598 P.2d 1389, 1391 (Wyo.1979) ].
Cooney, 792 P.2d at 1294.
In Cooney it was shown that the deputy county attorney performs “vital activities of informing the sentencing judge of possible probation violations and of presenting them to the judge under the probation revocation procedures.” Cooney, 792 P.2d at 1295. We concluded then, and I conclude now, in light of Burns, that deputy county attorney White’s “challenged activities are advocatory and ‘intimately associated with the judicial phase of the criminal process’ and, therefore, ‘are functions to which the reasons for absolute immunity apply with full force.’ ” Imbler, 424 U.S. at 430, 96 S.Ct. at 995, 47 L.Ed.2d at 143.
I would hold that deputy county attorney White’s challenged actions are connected with the prosecutor’s role in judicial proceedings; therefore, absolute prosecutorial immunity is justified for his actions.