Reese v. Danforth

406 A.2d 735, 486 Pa. 479, 6 A.L.R. 4th 758, 1979 Pa. LEXIS 696

• Court: Supreme Court of Pennsylvania
• Decided: October 9, 1979
• Docket: 451
• Status: Published

Opinions

OPINION

NIX, Justice.

*

Appellant Paul A. Reese instituted an action in trespass alleging negligent representation afforded to him by appellees, Theodore S. Danforth, a county public defender and two members of his staff, including a law student certified under Pa.B.A.R.ll. The alleged negligent representations occurred during a proceeding brought against Mr. Reese by the Administrator for Lancaster County pursuant to the Mental Health and Mental Retardation Act of 1966.¹ The proceeding initially started as a hearing under § 406(a) of the Act and ultimately concluded in a commitment to a psychiatric hospital pursuant to § 405. As a result of that action, Reese was confined involuntarily for a period of seven (7) days and is now seeking compensatory and punitive damages alleging that he was improperly confined as a result of the negligent representations provided him by the appellees.

The appellees moved for. judgment on the pleadings on the grounds that they were immune from suit as a matter of law in that they were public officers by virtue of the Public Defender’s Act of December 2, 1968² acting within the scope of a statutorily mandated duty to supply legal counsel to indigents. The motion was granted by the Lancaster County Court of Common Pleas based on its determination that the Public Defender’s Act conferred official status on public defenders, and, thus, immunized them from liability for negligent conduct when acting within the scope of their duties.³ This decision was affirmed per curiam by the Superior Court without an opinion,⁴ and we granted allocatur.

We begin by observing that the question of immunity here presented turns on the law of this Commonwealth concerning official immunity. Precedents drawn either from the Federal common' law of immunity, which treat these questions as part of the doctrine of judicial immunity, see Ferri v. Ackerman, 483 Pa. 90, 394 A.2d 553 (1978), or from the Federal common law of what constitutes state action under 42 U.S.C. § 1983,⁵ are not controlling in the instant case.

Prior to this Court’s decision in DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978), modifying the doctrine of officials’ immunity, the law was clear that public officials were entitled to some immunity from suits arising out of their negligent conduct. “High public officials” were entitled to absolute immunity from civil suits, see Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952), while “lower public officials” were only granted a conditional or qualified immunity that disappeared in the face of allegations of wanton, reckless, intentional, and malicious conduct outside the scope of the official’s authority, see Ammlung v. Platt, 224 Pa.Super. 47, 302 A.2d 491 (1973). Although there was some confusion as to whether an individual was a high or low public official,⁶ it was clear that a mere public employee having no policy-making functions was not entitled to any immunity, whether it was absolute or conditional, see Meads v. Rutter, 122 Pa.Super. 64, 184 A. 560 (1936). It is therefore appropriate to begin our inquiry in this appeal by first determining whether a public defender and his assistants are public officials entitled to some sort of immunity or whether they are mere public employees to whom .no immunity flows.⁷

In order to be public officers, appellees would have to occupy public offices. In Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, 358, 22 A.2d 686, 688 (1941), we defined what comprises a public office:

“To constitute a public office, it is essential that certain independent public duties, a part of the sovereignty of the State, should be appointed to it by law, to be exercised by the incumbent in virtue of his election or appointment to the office thus created and defined . . . Kosek v. Wilkes-Barre Twp. School Dist., 110 Pa.Super. 295, 301, 168 A. 518.

In Finley v. McNair, 317 Pa. 278, 281, 176 A. 10, 11 (1935), we said that the question of whether an individual is a public officer

. must be determined by a consideration of the nature of the service to be performed by the incumbent, and of the duties imposed upon him, and whenever it appears that those duties are of a grave and important character, involving in the proper performance of them some of the functions of government, the officer charged with them is clearly to be regarded as a public one: Richie v. Philadelphia, [225 Pa. 511, 515, 74 A. 430 (1909)]. Other elements in the problem are whether the duties are designated by statute, whether the incumbent serves for a fixed period, acts under oath, gives a bond, and the source or character of the compensation received.

The present problem is similar to that facing the Court in Commonwealth ex rel. Foreman v. Hampson, 393 Pa. 467, 143 A.2d 369 (1958), where we held that a county solicitor is an appointed professional employee and not a public officer within the contemplation of the residence requirement of article XIV section 3 of our state constitution. There the Court quoted and applied that portion of the Richie opinion set forth above, and stated:

A county solicitor is not appointed for any fixed term or certain tenure but occupies his position at the will of the commissioners who appoint him. No functions of government are delegated to him. Nor can he lawfully exercise any powers of sovereignty. He serves as counsel to the commissioners in the discharge of their public duty just as any privately employed attorney serves his clients.

See also, Wiest v. Northumberland County, 115 Pa.Super. 577, 580, 176 A. 74 (1935) (holding that a county solicitor is not a public officer within the meaning of article III section 13 of the constitution). Although individuals may occupy positions which are publicly-funded and authorized by statute, as do public defenders and county solicitors, this does not compel the conclusion that they are public officers. Instead, it is the nature of the office, the powers wielded, and the responsibilities carried out that are the key considerations. Thus, although a county solicitor was not a public officer within the meaning of the constitutional provision involved in Foreman, we had earlier held that district attorneys were public officers within the meaning of that section. Lennox v. Clark, 372 Pa. 355, 373, 93 A.2d 834 (1953). Obviously, a district attorney does exercise powers of sovereignty in the course of executing governmental functions, whereas a county solicitor does not.

In comparing the office of public defender to that of county solicitor, it is apparent that the public defender’s function is even more akin to the role of the privately employed attorney than is the solicitor’s. This is because the defender’s duty is to represent his clients even as against the interests of the county when it seeks to prosecute an indigent for violation of a county ordinance or, as here, when it seeks to commit an indigent for psychiatric observation. See also, A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 1.1(b) (App. Draft, 1971). The overriding duty of zealous representation of a client’s interest attaches to the role of the public defender and had led the Superior Court to liken the performance of this duty by the defender to the performance of privately retained counsel. Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927, 931 (1977).

The relationship between the county and the public defender is similar to that between an independent contractor and the party contracting for his services. The county has no control over the manner of representation given indigents by the defender. The nature of the work involves the attorney-client relationship and is of a type that precludes outside interference or direction by the county. The attorney requires special skills and the practice of law is a distinct occupation or business from that in which the county primarily engages. Compare Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 370-71, 243 A.2d 389 (1968); 1 Restatement (Second) of Agency (1958) § 220. In fact a comment to section 223 of the Restatement speaks of attorneys as independent contractors. See 1 Restatement (Second) of Agency § 223 comment a.

Another jurisdiction considering the question of whether a public defender is a public officer under state law has cogently observed:

Even though the state must insure that indigents are represented by competent counsel, it can hardly be argued that the actual conduct of the defense of an individual is a sovereign or governmental act. The principle that the state cannot function both as prosecutor and defender is so deeply rooted in our system of justice as to require no citation. The public defender when he represents his client is not performing a sovereign function and is therefore not a public or state official to whom the doctrine of sovereign immunity applies.

Spring v. Constantino, 168 Conn. 563, 362 A.2d 871, 875 (1975). So, too, in this jurisdiction, official immunity is accorded to protect “society’s interest in the unfettered' discharge of public business.” Montgomery v. Philadelphia, 392 Pa. 178, 183, 140 A.2d 100, 103 (1958). While the availability of court-appointed counsel to represent indigents is indubitably the public business, we hold that once the appointment of a public defender in a given case is made, his public or state function ceases and thereafter he functions purely as a private attorney concerned with servicing his client. His professional relationship with his client takes on all the obligations and protections attendant upon a private attorney-client relationship except one: the public pays his fee. In this respect, he is like the physician rendering professional services which are paid for out of public funds and, like that physician, he ought to be subject to liability for tortious conduct. E. g., Jackson v. Kelly, 557 F.2d 735 (10th Cir. 1977); U. S. ex rel. Fear v. Rundle, 506 F.2d 331 (3d Cir. 1974).

We are presented with two public policy arguments against civil liability of public defenders for malpractice. First, the need to recruit and hold able lawyers to represent indigents. Second, the need to encourage counsel in the full exercise of professionalism, i. e., the unfettered discretion in the light of training and experience, to decline to press the frivolous, to assign priorities between indigent litigants, and to make strategic decisions with regard to a particular litigant as to how his interests may best be advanced. See, Minns v. Paul, 542 F.2d 899 (4th Cir. 1976); Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972).⁸

These arguments restate objections made and rejected by this Court in other cases in which immunity was invoked. The general rule in this Commonwealth is that liability follows tortious conduct, and, thus, immunity is an exception. Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). Whether a particular individual claiming official status is accorded immunity depends upon “the nature of his duties, the importance of his office, and particularly whether or not he has policy-making functions.” Montgomery v. City of Philadelphia, 392 Pa. at 186, 140 A.2d at 105. It does not turn on the putative effect of the imposition of the financial burdens attendant to tort liability. Thus, we observed in Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 503-504, 208 A.2d 193, 202 (1965):

We have a duty to perform and that is to see that justice, within the framework of the law, is done. Our function is to decide cases as they come before us on the pertinent facts and law. What could happen in the event that plaintiff obtains a verdict is not an issue here.⁹

Appellees, in the instant case, do not serve as public administrators with policy-making functions and the duty to act according to directives handed down to them by other public officials. Cf. Montgomery v. Philadelphia, supra; Spring v. Constantino, supra. The scope of authority devolved upon them by statute is coextensive with that of a trained professional representing a client in a particular case, not that of an elected or appointed public official accountable to the community at large. Cf. Yealy v. Fink, 43 Pa. 212 (1862); Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968).

We are called upon here by the appellees to read into a statute implementing a constitutionally prescribed duty to furnish indigents with court-appointed counsel, an unexpressed public interest in limiting liability for professional malpractice visited upon indigents thus represented. We are asked to rule that this potential liability outweighs the interest of the indigent client in the provision of legal services under the same standards as those applicable in other attorney-client situations. Appellee’s contention is tantamount to a suggestion that we distinguish between groups of plaintiffs based on economic status, thus, denying an indigent the tort relief which would be available to the paying client in a similar fact situation. Such a distinction would raise troublesome equal protection questions were we to adopt it. See, Comment, Liability of Court Appointed 'Defense Counsel for Malpractice in Federal Criminal Prosecution, 57 Iowa L.Rev. 1420 at 1425-1427. It is inconsistent with our belief that the quality and extent of the services or ethical responsibilities of public defenders and court-appointed counsel should turn on or be affected by the source of their compensation, or the economic status of their clientele. See, Mallen, The Court-Appointed Lawyer and Legal Malpractice — Liability or Immunity, 14 Am.Crim.L.Rev. 59 (1976); A.B.A. Standards Relating to the Defense Function § 1.1 comment f. (App.Draft; 1971).

For the same reason, we must reject the argument that the availability either of habeas corpus proceedings based on incompetence of counsel, or a disciplinary action against the public defender under the Canons of Ethics and the Rules of Disciplinary Enforcement¹⁰ to vindicate the aggrieved indigent’s interests without recourse to civil liability. Here again, we can conceive of no principled basis for differentiating between public defenders and privately retained and paid counsel whose clients are also afforded these remedies, plus the civil action for damages, in appropriate circumstances.

Accordingly, the order of the Court of Common Pleas of Lancaster County must be reversed and the case remanded for proceedings consistent with this opinion.

ROBERTS, J., filed a concurring opinion in which LARSEN, J., joined. MANDERINO, J., filed a concurring opinion. O’BRIEN, J., filed a dissenting opinion in which EAGEN, C. J., joined. POMEROY, former J., did not participate in the decision of this case.

Supplemental briefs were filed on February 22, 1979, and the case was assigned to this writer on February 27, 1979.

1 . Act of October 20, 1966, Special Sess. No. 3, P.L. 96, art. I, § 101, 50 P.S. §§ 4101 et seq.

2 . Act of December 2, 1968, P.L. 1144, No. 358, §§ 1 et seq.; 16 P.S. §§ 9960.1 et seq. (Supp. 1979-80).

3 . Decision reported at 65 Lanc.L.R. 207 (1976).

4 . 241 Pa.Super. 604, 360 A.2d 629 (1976).

5 . See Note, Liability of Public Defenders under section 1983; Robinson v. Bergstrom, 92 Harv.L.Rev. 943 (1978).

6 . Compare Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968) (township supervisors are high public officials and receive absolute immunity), with Yealy v. Fink, 43 Pa. 212 (1862) (township supervisors given only conditional immunity). See also, American Pavement Co. v. Wagner, 139 Pa. 623, 21 A. 160 (1891) (discussing the distinction between discretionary and ministerial duties).

7 . Because we find that appellees are not public officers and therefore not entitled to immunity under prior law, it is obvious that the principles set forth in DuBree, which contracted rather than expanded immunity, are satisfied.

8 . In each case cited by the appellees in their brief for the proposition that public defenders are entitled to immunity, none of the findings of immunity were necessary to exculpate the attorney since there was substantial authority in each circuit that either a private or court-appointed attorney does not act under color of law, and, therefore, Federal jurisdiction under the Civil Rights Act which was the asserted jurisdiction predicate for each suit did not attach. See Mallen and Levitt, Legal Malpractice § 175 (1977) discussing Minns v. Paul, 542 F.2d 899 (4th Cir. 1976); John v. Hurt, 489 F.2d 786 (7th Cir. 1973); Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972). Accordingly, the observations on immunity in those cases were unnecessary to the disposition of the case and, in any event, not controlling on the state law of immunity.

The opinion of the Third Circuit upon which appellees place great reliance has been criticized both for its unsoundness as policy and for its lack of craftsmanship in that it ignored an unreversed lower court opinion which held to the contrary. See, Mallen, The Court-Appointed Lawyer and Legal Malpractice-Liability or Immunity, 14 Am.Crim. L.Rev. 59 (1976).

9 . See also, Meads v. Rutter, 122 Pa.Super. 64, 69, 184 A. 560, 562 (1936), where the court stated:

An employee or officer of the Commonwealth is not a member of a privileged class — exempt from liability for his individual tort. It would be unfortunate, indeed, if one, who has sustained a wrong by an individual, would be remediless and not able to sue him the same as any other citizen because he was an agent, officer, or employee of the Commonwealth. Like all others, he must personally answer for his wrongful acts, . .

10 . See, Public Defender Act, Act of December 2, 1968, P.L. 1144, No. 358, § 4, 16 P.S. § 9960.4 (power of Board of County Commissioners to fire public defender).