Overman v. Klein

654 P.2d 888, 103 Idaho 795, 1982 Ida. LEXIS 306

• Court: Idaho Supreme Court
• Decided: October 27, 1982
• Docket: 13641
• Status: Published

Opinions

SHEPARD, Justice.

This is an appeal from an order dismissing plaintiff’s complaint. Plaintiff-appellant, Lillian A. Overman, asserted causes of action under state tort law sounding in defamation and violation of the right to privacy against defendants-respondents, employees of the State Department of Health and Welfare, in both their individual and official capacities. A cause of action was also asserted alleging that under color of state law, that same conduct deprived plaintiff-appellant of her constitutional rights in violation of 42 U.S.C. § 1983. The trial court dismissed those claims based on state law, holding that as to the defendants’ liability in their official capacities, notices as required under the Idaho Tort Claims Act, I.C. §§ 6-901 et seq., had not been timely served. As to the causes relating to the liability of the defendants in their individual capacities, the court held that since the alleged tortious conduct arose from filing an affidavit in a judicial proceeding, they enjoyed absolute immunity. As to the § 1983 cause of action, the court, applying federal law, held that the defendants were acting as witnesses and hence enjoyed absolute immunity from civil liability.

The litigation out of which the present cause of action arose was the subject of this Court’s decision in Overman v. Overman, 102 Idaho 235, 629 P.2d 127 (1981). In January, 1978, Mrs. Overman obtained an uncontested divorce from her husband and therein was awarded custody of the couple’s five minor children. In September, 1978, Mr. Overman petitioned for a modification of the divorce decree seeking custody of the children. He sought and obtained ex parte an immediate temporary change in custody for a period of ten days pending a hearing on his petition for a permanent change in custody. That motion for an ex parte temporary change in custody was supported by an affidavit of defendant-respondent Mike Neher, a social worker employed by the Idaho Department of Health and Welfare. It is that affidavit which allegedly constituted defamation and invasion of privacy, a violation of constitutional rights under the color of state law, and hence it is the basis of the instant action.

The affidavit was based on information contained in the files of the Department of Health and Welfare. It is recited that the affidavit is based on the personal involvement of the affiant, Neher, with Mrs. Over-man and others upon the complaints received by the Department relating to the care of the children, and a home study and evaluation conducted by the Department. It is also related that the change of custody to the father was in conformance to the best interests and well-being of the children and that in the event such change of custody to the father was unsuccessful, the Department would seek to obtain custody under the Child Protective Act, I.C. §§ 16-1601 et seq. It is also recited that Mrs. Overman planned to leave the State of Idaho and take the children with her and thus beyond the jurisdiction of the court.

In brief, the facts supporting the conclusions of the affidavit were that the mother was leaving the children for prolonged periods of time, that the children were not regularly attending school, that the children were being physically abused, that the children were often left with strangers and that the children were not fed or clothed. In addition, it was stated that the mother had relinquished custody to a foster home and then reacquired custody through trickery and deceit.

As aforesaid, the district court ex parte granted a temporary change in custody for a period of ten days. Thereafter a plenary hearing was scheduled on Mr. Overman’s petition for a permanent change in custody. Upon the motion of Mrs. Overman, such hearing was continued and ultimately a plenary hearing was held. Thereafter the court entered an order modifying the decree of divorce and granting Mr. Overman permanent care, custody and control of the children. An appeal was brought to this Court not from the court’s modification of the decree to award permanent custody to Mr. Overman, but solely from the order granting temporary custody for a period of ten days. Upon appeal it was argued that any appeal from the order granting temporary custody was moot, since the court had later entered a permanent change of custody order and no appeal was taken from that order. Nevertheless, this Court proceeded to examine the cause on its merits, held that the trial court’s findings relating to the necessity to change the custody of the children to the father was supported by the evidence, and upheld both orders of the district court. See Overman v. Overman, supra.

In February, 1979, this action was filed against Neher and four other employees of the Department, who, it was alleged, acted as Neher’s supervisors. It was asserted that defendants were under a duty to maintain the confidentiality of the records of the Department of Welfare and to preserve the privacy of the family, and that disclosure of the information contained in the Neher affidavit constituted grounds for relief under the three causes of action. As aforesaid, the complaint was dismissed.

As to the causes of action against the defendants in their official capacities for defamation and violation of the right to privacy, those were dismissed on the basis of the failure of Mrs. Overman to comply with the notice of claim provision of the Idaho Tort Claims Act, I.C. § 6-905. That section provides:

“6-905. Filing claims against state or employee — Time.—All claims against the state arising under the provisions of this act and all claims against an employee of the state for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the secretary of state within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later.”

I.C. § 6-908 provides:

“6-908. Restriction on allowance of claims. — No claim or action shall be allowed against a governmental entity or its employee unless the claim has been presented and filed within the time limits prescribed by this act.”

In accordance with I.C. § 6-908, compliance with the notice of claim requirement is a mandatory condition precedent to bringing suit against the state or its employee. Newlan v. State, 96 Idaho 711, 535 P.2d 1348, appeal dismissed sub nom., Agost v. Idaho, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Jacaway v. State, 97 Idaho 694, 551 P.2d 1330 (1976). The notice of claim requirement of I.C. § 6-905 serves the purposes of providing an opportunity for parties to resolve their dispute through settlement without resort to the courts, allowing authorities to conduct a timely investigation of the claimant’s cause of action to determine the extent of the state’s liability, if any, and allowing the state to prepare its defenses. Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981).

The district court construed the complaint against the defendants-respondents in their official capacities as, in essence, a suit against the state. The trial court was correct. Grant Construction Co. v. Burns, 92 Idaho 408, 443 P.2d 1005 (1968); Biscar v. University of Wyoming Board of Trustees, 605 P.2d 374 (Wyo.1980). We therefore affirm the order of the trial court dismissing plaintiff’s complaint as it relates to the defendants-respondents in their official capacities. Newlan v. State, supra; Jacaway v. State, supra.

As to the causes of action against the defendants-respondents in their individual capacities, such were dismissed by the trial court on the basis of witness immunity. Defendants-respondents argue that the trial court’s dismissal of the causes of action against them in their individual capacities was proper on the alternative ground that I.C. § 6-905, requiring a timely notice of claim, applies not only to suits against the state, but also to suits against state employees for their acts or omissions in the course or scope of their employment. We agree.

It is alleged in the complaint that at all times material to the cause of action, defendants-respondents acted within the course and scope of their employment.

As originally enacted in 1971, I.C. § 6-905 provided:

“Filing claims against state—Time.—All claims against the state arising under the provisions of this act shall be presented to and filed with the secretary of state within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later.

See 1971 Idaho Sess.Laws, Ch. 150, § 5, p. 746. Thus, the original enactment did not require as a prerequisite to a suit against a state employee as an individual any notice of claim be filed with the Secretary of State. However, in 1976 the Tort Claims Act was comprehensively revised to provide for governmental liability “for money damages arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their employment or duties .... ” I.C. § 6-903(a) (emphasis added). The statute further required the government to provide a defense to its employees and to be responsible for the payment of any judgment on any claim against its employees, arising out of any act or omission within the course and scope of their employment. At that same time, I.C. § 6-905 was amended to require a filing of a notice of claim with the Secretary of State for money damages against the state, and “against an employee of the state for any act or omission of the employee within the course or scope of his employment ...” Also I.C. § 6-908 was amended to require the filing of a claim in accordance with I.C. § 6-905 as a prerequisite to a suit against a governmental employee. See 1976 Idaho Sess. Laws, Ch. 309, p. 1062.

Here, the complaint affirmatively alleges that Neher and the other defendants-respondents were acting within the scope and course of their employment.

We note further that I.C. § 6-903(e) provides:

“For the purposes of this act and not otherwise, it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment and without malice or criminal intent.”

Clearly the allegations of the complaint support rather than rebut the presumption, i.e., that the action of Neher was in the scope and course of his employment. Hence, since I.C. § 6-908 requires the filing of a notice of claim, as a prerequisite to a suit against a governmental employee acting within the course and scope of his employment and no such claim was filed, we affirm the trial court’s dismissal of the cause of action against defendants-respondents in their individual capacities on the basis of plaintiff’s failure to file a notice of claim.

We turn now to consideration of the cause of action brought under 42 U.S.C. § 1983, which provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

The question of immunity from an action predicated upon 42 U.S.C. § 1983 is one of federal law. Jones v. Marshall, 528 F.2d 132 (2d Cir.1975); Lynch v. Johnson, 420 F.2d 818 (6th Cir.1970); Ligon v. State of Maryland, 448 F.Supp. 935 (D.C.Md. 1977); see also Martin v. Duffie, 463 F.2d 464 (10th Cir.1972). The notice of claim requirements of I.C. § 6-905 are inapplicable to a cause of action brought under 42 U.S.C. § 1983. Doe v. Ellis, 103 Wis.2d 581, 309 N.W.2d 375 (1981); Perrote v. Percy, 452 F.Supp. 604 (E.D.Wis.1978). See also Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970).

In the instant case the district court correctly relied upon Blevins v. Ford, 572 F.2d 1336 (9th Cir.1978), in holding that the defendants-respondents were immune from liability. The court in Blevins stated:

“Blevins’ complaint against Ford was properly dismissed. For reasons of public policy, those who testify in the course of judicial proceedings have long enjoyed absolute immunity from civil suits based upon their words, whether perjurious or not. Brawer v. Horowitz, 3 Cir., 1976, 535 F.2d 830, 836-37, holds that this immunity applies in a civil rights action such as this. We agree.” Id. at 1338.

The holding in Blevins clearly represents the majority rule among federal courts. Charles v. Wade, 665 F.2d 661 (5th Cir. 1982); Briscoe v. LaHue, 663 F.2d 713 (7th Cir.1981), cert. granted, 455 U.S. 1016, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982); Myers v. Bull, 599 F.2d 863 (8th Cir.1979), cert. denied, 444 U.S. 901, 100 S.Ct. 213, 62 L.Ed.2d 138 (1979); Burke v. Miller, 580 F.2d 108 (4th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1268, 59 L.Ed.2d 487 (1979); Bennett v. Passic, 545 F.2d 1260 (10th Cir.1976); Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976). But see Briggs v. Goodwin, 569 F.2d 10 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978); Hilliard v. Williams, 516 F.2d 1344 (6th Cir. 1975), vacated on other grounds, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 729 (1976), aff’d after remand, 540 F.2d 220 (6th Cir. 1976).

While the apparent split of authority among the circuits has not been resolved by the United States Supreme Court, it stated in Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980): “[wjhere the immunity claimed by the defendant was well established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity.” See also Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 990, 47 L.Ed.2d 128 (1976), where the Court stated that its findings of immunity from § 1983 liability have been “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Cf. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislative immunity).

In the English common law, witnesses have enjoyed absolute immunity from civil liability from their testimony. In 1772 the comprehensive rule was announced by Lord Mansfield: “neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office.” The King v. Skinner, 98 Eng. Rep. 529, 530 (K.B.1772); See Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463 (1909). That rule of witness immunity has been incorporated into the American common law with the qualification that the statements of a witness must be relevant to the court’s inquiry. E.g., Richeson v. Kessler, 73 Idaho 548, 255 P.2d 707 (1953); Sacks v. Stecker, 60 F.2d 73 (2d Cir.1932); Andrews v. Gardiner, 224 N.Y. 440, 121 N.E. 341 (1918); Chambliss v. Blau, 127 Ala. 86, 28 So. 602 (1900); Cooley v. Galyon, 109 Tenn. 1, 70 S.W. 607 (Tenn.1902); Marsh v. Ellsworth, 50 N.Y. 309 (1872); Barnes v. McCrate, 32 Me. 442 (1851); Cooper v. Phipps, 24 Or. 357, 33 P. 985 (Or.1893).

The common law rule of the absolute immunity of a witness from civil liability does not necessarily extend to § 1983 actions if the purposes of the act would be frustrated thereby and the policies underlying the absolute immunity are insufficient to override the national interest. Imbler v. Pachtman, supra; Charles v. Wade, supra; Briscoe v. LaHue, supra.

While, as aforesaid, there remain some differences of opinion among the circuits, compare Briggs v. Goodwin, supra with Briscoe v. LaHue, supra, we deem recent decisions of the United States Supreme Court to be dispositive of the issue of a witness’s absolute immunity from civil liability under § 1983. In Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978), the Court stated:

“The cluster of immunities protecting the various participants in judge-supervised trials stems from the characteristics of the judicial process rather than its location. As the Bradley Court suggested, 13 Wall., at 348-349, controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus. Pierson v. Ray, 386 U.S., at 554 [87 S.Ct. 1213, 18 L.Ed.2d 288]. Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation. [¶] At the same time, the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges. Advocates are restrained not only by their professional obligations, but by the knowledge that their assertions will be contested by their adversaries in open court. Jurors are carefully screened to remove all possibility of bias. Witnesses are, of course, subject to the rigors of cross-examination and the penalty of perjury. Because these features of the judicial process tend to enhance the reliability of information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error.” (emphasis added) (footnote omitted).

In Imbler v. Pachtman, supra, it was stated:

“[A] witness ... must be permitted to testify without fear of being sued if his testimony is disbelieved.... Of course, witnesses should not be encouraged to testify falsely .... However, if the risk of having to defend a civil damage suit is added to the deterrent against such conduct already provided by criminal laws against perjury and subornation of perjury, the risk of self-censorship becomes too great.”

424 U.S. at 439-440, 96 S.Ct. at 999 (White, J., concurring). Although those statements of the United States Supreme Court have been denominated dicta, the federal circuit courts have considered them to be deliberate and therefore authoritative. Charles v. Wade, supra; Briscoe v. LaHue, supra.

The cases cited usually involved verbal testimony, but the immunity or privilege attaches to affidavits, as well as pleadings. Sacks v. Stecker, supra; Young v. Young, 18 F.2d 807 (D.C.Cir.1927); McGehee v. Insurance Co. of North America, 112 F. 853 (5th Cir.1902). The immunity has been held to apply as to virtually any statement in documents which have been filed in a judicial proceeding. Richeson v. Kessler, supra, (attorney’s letter); DiBlasio v. Kolodner, 233 Md. 512, 197 A.2d 245 (1964) (declaration in prior suit); Bartlett v. Christhilf, 69 Md. 219, 14 A. 518 (1889) (petition); Kerpelman v. Bricker, 23 Md.App. 628, 329 A.2d 423 (1974) (letter of complaint); Gilpin v. Tack, 256 F.Supp. 562 (W.D.Ark.1966) (interrogatories); O’Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974) (physician’s letter); Todd v. Cox, 20 Ariz.App. 347, 512 P.2d 1234 (1973) (affidavit); Albertson v. Raboff, 295 P.2d 405, 46 Cal.2d 375 (1956) (notice of lis pendens); McDonald v. Lakewood Country Club, 170 Colo. 355, 461 P.2d 437 (1969) (criminal information); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954) (affidavit); Resciniti v. Padilla, 420 N.Y.S.2d 759, 72 A.D.2d 557 (1979) (affidavit); Adams v. Peck, 288 Md. 1, 415 A.2d 292 (1980) (psychiatric report, not filed in proceeding).

We hold therefore that the affidavit filed by Neher in the temporary custody proceedings, being clearly relevant to the issue under inquiry, is privileged and Neher is absolutely immune from liability under the authorities cited.

We hold further that the dismissal as to defendants-respondents, Klein, Caballero, Isom and Phillips is affirmed, since a supervisory official cannot be sued under a theory of pure vicarious liability or respondeat superior under 42 U.S.C. § 1983. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Reimer v. Smith, 663 F.2d 1316 (5th Cir.1981); Duchesne v. Sugarman, 566 F.2d 817 (2d Cir.1977); Doe v. County of Suffolk, 494 F.Supp. 179 (E.D.N.Y.1980).

The orders of the district court are affirmed. Costs to defendants-respondents. No attorney’s fees on appeal.

BAKES, C.J., and McFADDEN and DONALDSON, JJ., concur. McFADDEN, J., registered his vote prior to his retirement on August 31, 1982.