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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. Stafford (08/08/2008) sp-6297
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| VERNON SMITH, | ) |
| ) Supreme Court No. S- 12255 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3KN-03-00523 CI |
| ) | |
| KATIE STAFFORD and | ) |
| MARGIT COX, | ) OPINION ON REHEARING |
| ) | |
| Appellees. | ) No. 6297 - August 8, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
John Suddock, Judge.
Appearances: Mark Osterman, Osterman Law
Office, P.C., Kenai, for Appellant. Megan R.
Webb, Assistant Attorney General, Anchorage,
and David W. M rquez, Attorney General,
Juneau, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
This appeal stems from a Child in Need of Aid (CINA)
case that was ultimately dismissed with the childs father being
granted sole custody of his daughter. He subsequently sued the
social worker who handled the case and her supervisor, alleging
thirteen causes of action. The superior court dismissed all of
the fathers claims on summary judgment, holding that the claims
were precluded by collateral estoppel or, alternatively, official
immunity. Many of the claims were properly dismissed, and as to
those we affirm. But because one count of the complaint gave
rise to disputed issues of material fact, and the father is not
collaterally estopped from litigating that claim, we reverse as
to that count and remand for further proceedings.
II. FACTS AND PROCEEDINGS
A. Facts
Vernon Smith had been separated from his estranged wife
Lisa Baker1 for four months when Baker gave birth to A.B. in
February 2000. At the time of A.B.s birth, Smith was subject to
a domestic violence-related restraining order. Although Baker
initially served as A.B.s sole caretaker, this role was short-
lived. In April 2000 Bakers substance abuse problems came to the
attention of the Division of Family and Youth Services, now known
as the Office of Childrens Services (OCS).2 OCS removed A.B.
from Bakers home and initiated child in need of aid proceedings,
placing A.B. with foster parents, Matt and Candy Copple.
Smith participated in the CINA proceedings with the
assistance of appointed counsel. Smith joined Baker in
stipulating that A.B. was a child in need of aid and sought
custody of A.B. Although Smith was not granted custody of A.B.,
the court permitted Smith to have supervised visits with her.
Smiths original case plan identified placement of A.B.
with him or Baker as the primary goal, but conditioned placement
with Smith on his completion of several counseling requirements
including a drug and alcohol assessment and participation in
batterers intervention programs. Roughly three months after
A.B.s CINA proceedings began, OCS placed social worker Margit Cox
and supervisor Katie Stafford in charge of A.B.s case. OCS also
instituted a concurrent case plan that called for adoption in
case A.B.s reunification with a parent did not occur.
Smiths relationship with Cox began relatively well. In
August 2000 Cox placed A.B. with Smith on a temporary and
informal basis. This placement did not sit well with Baker, who
asserted that Smith was unfit to care for A.B. and requested that
the superior court review A.B.s placement. After Bakers
objection, Cox removed A.B. from Smiths home and returned A.B. to
the Copples care. Smith appears to have felt betrayed by the
decision to remove A.B. from his care and his relationship with
Cox began to sour.
After Cox removed A.B. from his home, Smith perceived
Cox as becoming hostile toward him. Smith took issue with the
counseling requirements that Cox imposed as part of his case
plan, arguing that certain requirements were unnecessary and that
in the aggregate they were far too numerous. Smith complained
about Coxs handling of the case during a private meeting with
Stafford in September 2000. He informed Stafford that the
numerous counseling requirements were negatively impacting his
ability to keep his job and requested that another social worker
be appointed to handle A.B.s case. Smith alleged that Cox
learned about his complaint and subsequently threatened that he
would not see A.B. again if he made further complaints.
Despite his objections to the counseling requirements
included in his case plan, Smith participated in the mandated
counseling programs and his visitation with A.B. was eventually
increased. In December 2000 he was permitted several
unsupervised home visits with A.B. during the week and A.B. spent
weekends with him.
In March 2001 Smith requested that the superior court
review A.B.s continued placement with her foster family, the
Copples. The superior court concluded that Coxs decision to keep
A.B. in the Copples care and to condition reunification with
Smith on his completion of counseling requirements was not
arbitrary, capricious or manifestly unreasonable. During an
early May permanency hearing the superior court again held that
A.B.s continued placement with the Copples was in A.B.s best
interest and noted that Smith needed to continue to meaningfully
participate in the counseling programs included in his case plan
in order to regain custody.
In late May 2001 A.B. left a weekend visit with Smith
with a bruise on her cheek. Smith explained that A.B., now a
toddler, tripped while trying to walk and hit her cheek on his
knee. Cox investigated the incident. She interviewed Smiths son
from a previous marriage at his school. Cox then visited Smiths
home and documented what she viewed as several dangerous
conditions, including empty beer cans and bottles outside the
house. Smith alleges that Cox arranged these beer cans and
staged a photograph of them. As a result of her home visit
observations, Cox required Smith and his live-in girlfriend, Lynn
Reynolds, to submit to random urinalysis tests.
Smith learned in July 2001 that the Copples planned to
move to Arizona and wanted to take A.B. with them. When Smith
again petitioned the superior court to conduct a placement
review, the superior court again concluded that continued
placement with the Copples was in A.B.s best interest. The court
held that Smith was not capable of caring for A.B. at that time
and authorized OCS to place A.B. with the Copples in Arizona.
The court nonetheless required OCS to arrange and pay for Smith
to make monthly trips to Arizona to spend time with A.B. Smith
made several trips to see A.B. in Arizona.
In November 2001 social worker Tim Von Hayden and
supervisor Bill Galic took over A.B.s CINA case. Smiths
counseling obligations were diminished and he completed the
remaining counseling programs. Von Hayden informed Smith in
March 2002 that A.B. would be placed with him, and in May 2002
A.B. was placed with Smith on a permanent basis. Shortly
thereafter, A.B.s CINA case was dismissed pursuant to OCSs
request.
After the CINA case had ended, Smiths attorney
interviewed Candy Copple, A.B.s foster mother. Smith apparently
viewed Candys statements as suggesting that early on in A.B.s
CINA case Cox had assured the Copples that Smith would not be
regaining custody of A.B. Candys statements appear to have
convinced Smith that Cox and Stafford conspired to keep A.B. away
from him.
B. Proceedings
Smith sued Cox and Stafford in July 2003 and amended
his complaint in August 2004. Smith alleged thirteen separate
causes of action. Smiths amended complaint alleged multiple
violations of CINA procedures, several defamation and privacy
torts, and one violation of 42 U.S.C. 1983.
Cox and Stafford moved for summary judgment, which the
superior court granted. The superior court provided three
alternative grounds for dismissing Smiths claims. First, the
court held that collateral estoppel applied and barred all of
Smiths claims. Second, at least qualified immunity applied under
federal law and barred Smiths 1983 claim. Finally, the court
concluded that either absolute or qualified official immunity
applied and barred all of Smiths state law claims. Smith
appeals.
III. STANDARD OF REVIEW
We review orders granting summary judgment de novo.3
In reviewing a grant of summary judgment, we will determine
whether any genuine issue of material fact exists and whether the
moving party is entitled to judgment on the law applicable to the
established facts.4
The applicability of both state and federal immunity
are questions of law that are also subject to de novo review.5
We may affirm the superior court on any basis supported by
the record, even if that basis was not considered by the
court below or advanced by any party.6
IV. DISCUSSION
A. Defining Smiths Claims
A. Smiths amended complaint asserts thirteen causes of action
against Cox and Stafford.7 For the sake of clarity, we have
placed each cause of action into one of three groups. Group A
includes the counts that allege that Cox and Stafford failed to
comply with procedures required under CINA statutes.8 Group B
includes Smiths defamation and privacy torts.9 Finally, Smith
alleged one count of wrongful deprivation of his constitutional
rights under color of law in violation of 42 U.S.C. 1983, which
we will refer to as the 1983 claim. We address each group of
claims in turn.
B. Smiths Group A Claims Do Not State Viable Causes of Action.
Smiths Group A claims attempt to predicate Cox and
Staffords liability on an alleged failure to comply with
statutorily mandated procedures for CINA cases. For the reasons
discussed below, these claims are not actionable.
Alaska Statutes 47.10.005-.142 set out certain
procedures that must be followed in bringing and prosecuting CINA
cases. These provisions govern, for example, when a child is
considered in need of aid and what types of efforts must be made
to reunite a child with his or her parents once removal has
occurred.
Although AS 47.10.005-.142 create certain obligations
for OCS officials involved in CINA cases, none creates a private
negligence cause of action for failure to comply with its
requirements. To highlight this point, AS 47.10.960 explicitly
forecloses any argument that the provisions were intended to
serve as the basis for a negligence claim. The version of
section .960 in effect when Smith filed his amended complaint
provided: Nothing in this title creates a duty or standard of
care for services to children and their families being served
under AS 47.10.10 Addressing this provision in McGrew v. State,
Department of Health & Social Services, Division of Family &
Youth Services,11 we held that it prevented grandparents from
alleging negligence claims based on OCSs alleged failure to
comply with certain CINA statutes.12
Here, Smiths Group A claims allege that Smith was
injured when Cox and Stafford failed to comply with several of
these requirements. Smiths Group A claims sound in negligence:
Smith alleges he was injured by Coxs and Staffords failure to
comply with various CINA provisions that established specific
duties of care. As in McGrew, section .960 precludes Smith from
relying on CINA statutes to prove that Cox and Stafford owed him
any special duties of care.13 As Smiths Group A claims depend on
a special duty of care that does not exist, these claims are not
actionable and were properly dismissed14 by the superior court.15
C. Smiths Group B (State Tort) Claims, Except The Defamation
and False Light Claims Referenced in Count X, Are Barred by
Qualified Immunity.
A. The superior court concluded that at least qualified
immunity applied to Smiths state law tort claims and that Smith
was unable to overcome that immunity. Smith argues that the
superior court erred in concluding that any form of immunity
applied and that even if qualified immunity applied, there was an
issue of fact regarding Coxs and Staffords state of mind.
Under Alaska law, the doctrines of absolute and
qualified immunity protect public officials from tort suits for
discretionary acts committed within the scope of their authority.16
Absolute immunity immunizes officials from suit for all official
acts without regard to motive.17 Qualified immunity immunizes
official acts only when undertaken in good faith.18 Both forms of
immunity seek to balance the protection of private citizens
rights and the substantial social costs of imposing liability on
public officials.19
A three-step inquiry is generally used to determine the
existence and scope of official immunity: First, does the
doctrine of official immunity apply to the state officials
conduct? Second, if it does apply, is the immunity absolute or
qualified? And third, if it is only a qualified immunity, did the
state official act corruptly, maliciously, or in bad faith?20
1. Official immunity is applicable to Coxs and Staffords
actions.
1. Official immunity applies to an officials conduct if (1) it
is within the scope of the officials authority, and (2) it is a
discretionary act.21 An official acts within the scope of the
officials authority when he or she has the authority to engage in
the underlying conduct out of which the alleged claim arises.22
Discretionary acts are defined as those requiring personal
deliberation, decision and judgment.23
Coxs and Staffords investigations, reports, and
recommendations were within their authority because they were the
types of actions that social workers and supervisors undertake
during a CINA case. Smith focuses on the second prong of the
official immunity test, arguing that because Cox and Staffords
actions were obligatory they could not qualify as discretionary.
His argument is unavailing in light of the nature of OCSs duties.
Alaska Statute 47.05.065(4)(A), for example, makes OCS employees
like Cox and Stafford responsible for placing children in its
care in a safe, secure, and stable environment. Determining what
constitutes a safe and stable environment is not a mechanical act
and instead implicates the use of discretion; as was illustrated
in this case, this determination necessarily involves
consideration of various alternatives and a decision about which
custody arrangement is in the childs best interest. Because Coxs
and Staffords actions were within the scope of their authority
and discretionary, some form of official immunity applies.
2. Stafford and Cox are not entitled to absolute immunity for
Smiths Group B claims.
Because we find that official immunity applies to the
actions of Stafford and Cox, it is essential to determine whether
that immunity is absolute or qualified. Stafford and Cox argue
for absolute immunity, while Smith disputes that they are
entitled to any immunity. In Aspen Exploration Corp. v.
Sheffield,24, we considered three factors in determining whether a
public official is entitled to absolute immunity:
(1) The nature and importance of the function
that the officer performed to the
administration of government . . .;
(2) The likelihood that the officer will be
subjected to frequent accusations of wrongful
motives and how easily the officer can defend
against these allegations; and
(3) The availability to the injured party of
other remedies or other forms of relief.[25]
The superior court analyzed the actions of Stafford and
Cox in light of these factors. The court explained that the
nature and importance of the function factor cuts toward absolute
immunity because social workers actions are vital to child
protection. The court stated that the social workers role is one
of the most important functions that the state can perform on
behalf of the most vulnerable and needy of its citizens, little
kids. Under the second factor, the court reasoned that it is
likely that social workers will be subject to frequent
accusations of wrongful motives because of the high stakes
emotional involvement of parents. Under the third factor, the
court reasoned that the injured party has relief available in
CINA proceedings. Thus, the superior court concluded, [s]o I
believe under State law that our Supreme Court would find this an
appropriate situation for absolute immunity.
The superior courts analysis of the first factor is
convincing. The actions of Stafford and Cox are highly important
because social workers investigations are truly vital to protect
vulnerable children. Without social workers freely performing
their investigatory duties, many children would remain in
dangerous situations with unfit parents. Few governmental
objectives can be considered more important than protecting this
states most valuable resource, our children. Thus, the first
factor would favor a rule of absolute immunity.
However, in examining the second factor, there is no
evidence that under qualified immunity social workers would be
subjected to frequent lawsuits. While it is true that CINA
proceedings involve the highly emotional issue of child custody,
the level of emotion involved does not necessarily translate into
a high number of lawsuits against social workers. Historically,
these types of suits have been relatively rare, and Stafford and
Cox present no empirical evidence that more lawsuits result if
social workers are protected by qualified rather than absolute
immunity. Furthermore, defending against the types of lawsuits
that could be brought by parents may not be difficult because the
suits are likely to involve basic questions of tort law and
factual determinations of credibility. Thus, the second factor
may actually favor qualified immunity.
Under the third factor, a blanket rule of absolute
immunity for social workers would deny an injured party a remedy
for certain claims. The injured party will not always find
relief in a CINA proceeding because such proceedings only involve
a parents rights in relation to his or her child. Here,
prosecution of a suit for defamation or false light would be the
only way to vindicate Smiths rights pertaining to Coxs alleged
staging of photographs and false reporting regarding the
incident. If Cox has absolute immunity from a suit for such
intentional torts, then Smith has no remedy available. Thus, the
third factor favors qualified immunity for Cox and Stafford.
In sum, although the first factor may suggest that social workers
should generally be entitled to absolute immunity, the other
factors, particularly the factor concerning the availability of
an alternative remedy, suggest that qualified immunity is
appropriate. We conclude that Stafford and Cox are entitled only
to qualified immunity for the Group B intentional tort claims.
Our conclusion that social workers enjoy qualified
rather than absolute immunity finds support in our case law
addressing immunity claims for other governmental officials. In
Prentzel v. State, Department of Public Safety, we held that
police officers were entitled to qualified immunity rather than
absolute immunity for discretionary acts.26 In a footnote in
Prentzel, we recognized that generally absolute immunity applies
only to judges, legislators, and the highest executive officers
of various levels of government and that other public officers
are covered by qualified immunity.27 Based on our analysis of the
three-factor test, we conclude that adoption of a blanket rule
extending absolute immunity for all actions of social workers is
not warranted. Thus, we analyze the actions of Stafford and Cox
under qualified immunity.
3. A genuine issue of material fact remains as to whether Cox
is entitled to qualified immunity for the Count X defamation and
false light claims, but all other Group B claims fail under
qualified immunity.
Smith has alleged that Cox and Stafford committed the
torts of false light, false reporting, defamation, and trespass.28
Qualified immunity precludes liability for such acts if
they were done in good faith, that is, not maliciously or
corruptly.29 Where qualified immunity is raised by the moving
party as grounds for summary judgment, the nonmoving party, in
order to avoid summary judgment, must present some admissible
evidence that creates an issue of fact as to whether the official
acted in bad faith or with an evil motive.30 In determining
whether the nonmoving party has established the existence of such
an issue of fact, we will consider the affidavits, depositions,
admissions, answers to interrogatories and similar material.31
Where no issue of material fact exists and the moving party is
entitled to judgment as a matter of law, summary judgment is
proper.32
Aside from the allegations contained in Smiths
complaint, there is scant evidence in the record supporting most
of Smiths Group B claims. This shortcoming notwithstanding, we
view another omission as fatal to most of these claims: Smith
failed to present evidence that Cox or Stafford acted in bad
faith or with a corrupt state of mind except with regard to his
Count X defamation and false light claims. Unsubstantiated
allegations contained in Smiths complaint that Cox and Stafford
conspired against him are insufficient to create a genuine issue
of material fact regarding Coxs and Staffords states of mind as
to the claims in Counts VII-IX.33 We conclude that Smiths failure
to identify any admissible evidence that could create an issue of
fact regarding Coxs and Staffords states of mind justified the
superior courts decision to grant Cox and Stafford summary
judgment on the basis of qualified immunity on the claims in
Counts VII, VIII, and IX.
However, Smiths affidavit does contain assertions
indicating that a genuine issue of material fact exists
concerning Coxs state of mind with regard to the defamation and
false light claims in Count X. In the affidavit, Smith made
specific statements about Cox staging photographs showing garbage
I had collected from cleaning the yard of the house I had just
bought and arranging old muddy beer cans collected from the
cleanup, claiming that I was drinking or having parties. He also
claimed in his affidavit that, after he complained to Stafford,
Cox was told of his complaint and Cox threatened [that] I would
never see my child if I ever complained about her again or
questioned her authority. These statements provide evidence of
Coxs alleged actions as well as implications of her motive.
While the statements may be unsubstantiated by other evidence,
they were made in an affidavit of a duly sworn witness, and they
correspond to allegations made in Count X. Such an affidavit
must be considered in determining whether a genuine issue of fact
exists.
The statements in the affidavit, if true, indicate that
Cox may have been acting in bad faith. Manufacturing a scene of
excessive alcohol consumption by arranging beer cans for a photo
to falsely create evidence to imply that Smith has an alcohol
problem or is an unfit father could be malicious and corrupt.
Threatening that Smith would never see his child in retaliation
for complaining about those acts could likewise be evidence of
malice. Thus, summary judgment in favor of Cox is improper as to
the Count X defamation and false light claims because Cox is not
protected by qualified immunity for actions taken maliciously,
corruptly, or in bad faith.
In sum, summary judgment in favor of Stafford was
justified because there are no material issues of fact in dispute
and she is entitled to judgment as a matter of law. But because
genuine issues of material fact remain as to whether Cox acted
maliciously when she entered Smiths property, took photographs,
and filed a report to document the incident, summary judgment was
not appropriate for the Count X defamation and false light
claims.
4. Smiths false light and defamation claims are not barred by
collateral estoppel.
The superior court provided an alternative rationale
for dismissing Smiths claims: they were barred by the doctrine of
collateral estoppel. [Exc. 130] We need not address whether
collateral estoppel bars the state law claims that the superior
court correctly found were barred by qualified immunity.
However, because qualified immunity does not bar the defamation
and false light claims in Count X, we address whether these
claims are barred by collateral estoppel.
Collateral estoppel, also known as issue preclusion,
renders an issue of fact or law which has already been decided by
a court of competent jurisdiction conclusive in a subsequent
action between the same parties.34 The doctrine serves the dual
purpose of protecting litigants from the burden of relitigating
an identical issue with the same party or his privy and of
promoting judicial economy by preventing needless litigation.35
In determining whether to apply collateral estoppel, we use a
four-part test, which asks whether:
(1) the party against whom the preclusion is
employed was a party to or in privity with a
party to the first action;
(2) the issue precluded from relitigation is
identical to the issue decided in the first
action;
(3) the issue was resolved in the first
action by a final judgment on the merits; and
(4) the determination of the issue was
essential to the final judgment.36
The burden of pleading and proving these elements rests on the
party asserting estoppel.37 To sustain this burden a party must
introduce a record sufficient to reveal the controlling facts and
pinpoint the exact issues litigated in the prior action.38
Stafford and Cox have met their burden under the first
element because Smith was a party to the original CINA case.
However, they have failed to meet their burden of proving the
final three elements for collateral estoppel.
The second collateral estoppel element asks whether
the issue to be precluded is identical to the issue decided in
the first action. Here, the legal and factual issues litigated
in the CINA case are different from the issues underlying Smiths
claims for defamation and false light. Despite the fact that the
defamation and false light claims stem from Stafford and Coxs
CINA investigation, the issues underlying the defamation and
false light claims were not litigated through the CINA case.39
These claims do not concern the issue whether Cox and Stafford
complied with CINA regulations, which was litigated during the
CINA proceedings. Rather, they concern whether Coxs alleged
staging of photographs of beer cans from Smiths yard constitutes
defamation or portrayal in a false light. Thus, Cox and Stafford
have failed to meet their burden of proving an identity of
issues.
The third collateral estoppel element asks whether the
issue to be precluded was resolved by final judgment in the first
action. But here, the issues of defamation and false light were
not resolved by final judgment in the CINA case. Although the
decisions rendered in the CINA case constitute final judgment for
purposes of placement, visitation, and custody of A.B., the
record reveals that there was no judgment on the merits of the
defamation and false light issues because those issues were not
litigated during the CINA proceedings.40
Finally, the fourth collateral estoppel element
requires that the determination of the issue to be precluded was
essential to the final judgment. But here, a determination of
the issues of defamation and false light was not essential to a
final judgment in the CINA proceedings. Indeed, there was no
determination of the issues of defamation and false light.
Because Cox and Stafford have failed to satisfy the
final three parts of the collateral estoppal test with regard to
Smiths Count X defamation and false light claims, collateral
estoppel does not bar these claims. Thus, we reject the superior
courts conclusion that collateral estoppel barred these two state
tort claims.
D. Smiths 1983 Claim Is Barred by Qualified Immunity Under
Federal Law.
Smiths final argument is that the superior court erred
in dismissing his 1983 claim on the basis of qualified immunity.
In his complaint, Smith based his 1983 claim on the following
broadly worded allegation: Ms. Cox and Ms. Stafford denied Mr.
Smith and his daughter the protections of the United States
Constitution . . . by preventing and denying Plaintiff Smith and
the ability [to] seek the protections of the law by their
conspiracy and actions. On appeal Smith asserts that Cox and
Stafford impinged upon the fundamental liberty interest [that]
[Smith] retains in the care, custody, and management of [A.B.]
even in the context of a CINA case.
Under federal law, as under state law, officials being
sued in their private capacity for discretionary acts performed
as part of their official duties are protected by at least
qualified immunity.41 A two-step process is used to determine
whether qualified immunity bars a 1983 action. Courts first
ask, [t]aken in the light most favorable to the party asserting
the injury, do the facts alleged show the officers conduct
violated a constitutional right?42 If the allegations show a
constitutional violation, courts then must determine whether the
right allegedly violated was clearly established, which occurs
where the contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.43 Where either of these requirements is not
met, the 1983 claim will be barred by the officials qualified
immunity.
Smiths 1983 claim is based on allegations that Cox and
Stafford acted improperly during A.B.s CINA case. Specifically,
Smith alleges that Cox and Stafford made false statements during
their investigation and conspired to prevent him from regaining
custody of A.B. Smiths claims about false statements and
conspiracy fail to allege a violation of a constitutional right
because they are conclusory assertions without the leaven of
confirming factual details.44 Smith does not identify the
specific false statements made by Cox or Stafford that support
his 1983 claim and fails to allege facts sufficient to establish
a conspiracy between the two.45 Further, as Smith was actively
involved in A.B.s CINA proceedings, it cannot reasonably be said
that a reasonable official in Coxs or Staffords position would
understand that they were violating Smiths due process or
parental rights by placing A.B. in foster care with the superior
courts approval. Because the facts alleged in Smiths 1983 claim
fail to identify or factually support any specific violations of
Smiths constitutional rights, the superior court did not err in
dismissing this claim on the basis of federal qualified immunity.46
V. CONCLUSION
Because Smiths Group A claims fail to state a cause of
action upon which relief can be granted; because Smiths Group B
claims, except the defamation and false light claims in Count X,
are barred by qualified immunity; and because qualified immunity
under federal law preclude Smiths 1983 claims, we AFFIRM the
superior courts grant of summary judgment to Cox and Stafford as
to these claims. But because Smiths affidavit creates a genuine
issue of material fact relevant to Coxs state of mind and
collateral estoppel does not bar litigation of the Count X
defamation and false light claims, we VACATE the superior courts
grant of summary judgment in favor of Cox as to those two claims
and REMAND for further proceedings consistent with this opinion.
In the Supreme Court of the State of Alaska
Vernon Smith, )
) Supreme Court No. S-12255
Appellant, )
v. ) Order
) Petition for Rehearing
Katie Stafford and Margit Cox, )
)
Appellees. ) Date of
Order: 8/8/2008
)
Trial Court Case # 3KN-03-00523CI
Before: Fabe, Chief Justice, Matthews, Eastaugh, and
Carpeneti, Justices. [Winfree, Justice, not
participating]
On consideration of the Petition for Rehearing filed on
3/7/2008 and the response filed on 4/25/2008,
It is Ordered:
1. The Petition for Rehearing is Granted.
2. Opinion No. 6234, issued on 2/29/2008, is Withdrawn.
3. Opinion No. 6297, is issued on this date in its place
addressing the collateral estoppel issue.
Entered by direction of the court.
Clerk of the Appellate Courts
Lori A. Wade, Chief Deputy
Clerk
Vernon Smith v. Katie Stafford and Margit Cox
Supreme Court No. S-12255
Order of 8/8/2008
Page Two
cc: Supreme Court Justices
Judge Suddock
Trial Court Appeals Clerk
Publishers (Op No. 6234 issued 2/29/2008)
Distribution:
Mark Osterman
Osterman Law Office PC
105 Trading Bay Drive, Suite 105
Kenai AK 99611
Megan R Webb
Assistant Attorney General
1031 West Fourth Avenue Suite 200
Anchorage AK 99501
_______________________________
1 Lisa Baker is a pseudonym we have used to protect A.B.s
identity.
2 For the sake of consistency we use the current
acronym, OCS.
3 Tongass Sport Fishing Assn v. State, 866 P.2d 1314,
1317 n.7 (Alaska 1994).
4 Wright v. State, 824 P.2d 718, 720 (Alaska 1992).
5 See Lawson v. Helmer, 77 P.3d 724, 726 (Alaska 2003)
(de novo review for state immunity); Mabe v. San Bernardino
County, Dept of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir.
2001) (de novo review for federal immunity).
6 Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006)
(citing Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska 2001)).
7 Because of the procedural posture of this case, the
superior court did not address the merits of the allegations
underlying Smiths claims against Cox and Stafford.
8 Group A includes: Count I (Cox and Stafford violated
obligation to place child with relative within ninety days of
removal); Count II (Coxs and Staffords demands were arbitrary,
unnecessary, and intended to harass Smith); Count III (Cox and
Stafford violated obligation to maintain adequate and accurate
case plan for Smith); Count IV (Cox and Stafford abused
safeguards by restricting Smiths visitation with A.B.); Count V
(Cox and Stafford violated obligation to place A.B. in Smiths
home or home of a relative); Count VI (Cox improperly classified
A.B. as special needs child); Count XI (Cox improperly conspired
to keep A.B. in foster care through special needs
classification); and Count XII (Cox improperly placed A.B. in
foster care).
9 Group B includes: Count VII (Cox portrayed Smith in a
false light by filing a false report about him); Count VIII (Cox
portrayed Smith in a false light by creating false medical
reports); Count IX (Cox defamed Smith by making false statements
about Smith to his ex-wife); and Count X (Cox trespassed on
Smiths property, defamed and portrayed Smith in a false light by
filing false reports about her findings, and made improper
threats).
10 AS 47.10.960 was amended in July 2005. Ch. 64, 29 SLA
2005. In its current version, it provides: Failure to comply
with a provision of this title does not constitute a basis for
civil liability for damages.
11 106 P.3d 319 (Alaska 2005).
12 Id. at 323.
13 See id. at 324 (dismissing negligence claim because
section .960 prevents actionable duty from arising out of any
provision in Title 47).
14 Although the superior court did not cite Smiths failure
to state a claim as grounds for dismissing these causes of
action, we may affirm based on any grounds supported by the
record. See Gilbert M. v. State, 139 P.3d 581, 586 (Alaska
2006).
15 We note that parents who find themselves in conflict
with OCS officials have remedies that may well be superior to
after-the-fact civil suits such as this one: (1) the
comprehensive administrative procedures set out in the Alaska
Administrative Code at 7 AAC 54.210-.240, which are designed to
hear and resolve complaints about OCS officials and (2) the
review provisions of Alaska Child in Need of Aid Rule 19.1, which
allows court review of OCSs visitation and placement decisions.
16 Alpine Indus., Inc. v. Feyk, 22 P.3d 445, 447 (Alaska
2001).
17 Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 157-
58 (Alaska 1987).
18 Id. at 158.
19 Anderson v. Creighton, 483 U.S. 635, 638-39 (1987).
20 Alpine Indus., 22 P.3d at 447-48 (citing Aspen
Exploration, 739 P.2d at 154, 158, 160).
21 Id. at 448.
22 See Aspen Exploration, 739 P.2d at 155 & n.11. ([A]n
abuse of authority is not synonymous with a lack of authority.).
23 Id. at 155 (quotations omitted).
24 739 P.2d 150 (Alaska 1987).
25 Id. at 159-60.
26 53 P.3d 587, 591 (Alaska 2002).
27 Id. at 591 n.12 (quoting 1 Civil Actions Against State
And Local Government 4.5, at 308 (Shephards Editorial Staff
eds., 2d ed. 1992)).
28 Smith alleges, as part of his trespass claim, that Cox
improperly attempted to dissuade him from making further
complaints about her conduct. This allegation most closely
resembles a constitutional tort, i.e., 1983 claim, but Smith
failed to pursue it as such. Even if viewed as alleging a
constitutional tort, however, Smiths claim would be weak because
Coxs alleged threat does not appear to have dissuaded Smith from
challenging her handling of A.B.s case during the CINA
proceedings as he alleges.
29 Aspen Exploration Corp., 739 P.2d at 158-59.
30 See Jennings v. State, 566 P.2d 1304, 1309 n.14 (Alaska
1977) (The non-movant, in order to prevent the entry of summary
judgment, must set forth facts, admissible in court, which would
. . . demonstrate that a triable issue of fact exists.).
31 Charles v. Interior Regl Hous. Auth., 55 P.3d 57, 59
(Alaska 2002) (internal quotations omitted).
32 Duncan v. Retired Pub. Employees of Alaska, Inc., 71
P.3d 882, 886 (Alaska 2003).
33 See State, Dept of Highways v. Green, 586 P.2d 595, 606
n.32 (Alaska 1978) (Mere assertions of facts in pleadings and
memoranda are insufficient for denial of a motion for summary
judgment.).
34 McElroy v. Kennedy, 74 P.3d 903, 907 (Alaska 2003).
35 Campion v. State, Dept of Cmty. & Regl Affairs, Hous.
Assistance Div., 876 P.2d 1096, 1098 (Alaska 1994) (quoting
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979)).
36 McElroy, 74 P.3d at 907.
37 See Hernandez v. City of Los Angeles, 624 F.2d 935, 937
(9th Cir. 1980).
38 Id.
39 See Grant v. Anchorage Police Dept, 20 P.3d 553, 558
(Alaska 2001) (holding that collateral estoppel did not bar claim
of disability discrimination because there was no identity of
issues between plaintiffs previous claim for disability
retirement benefits and his disability discrimination claim).
40 See In re Adoption of A.F.M., 15 P.3d 258, 268 n.46
(Alaska 2001) (stating that element requiring final judgment on
the merits encompasses the requirement that an issue actually be
litigated).
41 Federal qualified immunity principles differ slightly
from their state law counterpart. Federal law uses an objective
standard for determining whether a violation is of the type that
is actionable, while state law looks at the officials state of
mind and asks whether the official acted in bad faith. Compare
Anderson v. Creighton, 483 U.S. 635, 640 (1987) with Aspen
Exploration Corp., 739 P.2d at 158-59.
42 Saucier v. Katz, 533 U.S. 194, 201 (2001).
43 Id. at 201-02 (quoting Anderson, 483 U.S. at 640).
44 Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir.
1988).
45 Cf. id. at 1560 ([Plaintiffs allegations] contain
sufficient facts that, if proven at trial, would defeat [the
officials] immunity defense.) (emphasis added).
46 Because we hold that Smiths 1983 claim is barred by
qualified immunity, we need not address whether it is also barred
by collateral estoppel.
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