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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pauley v Anchorage School District et al. (10/05/2001) sp-5482

Pauley v Anchorage School District et al. (10/05/2001) sp-5482

     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.


Individually and as Next      )    Supreme Court No. S-9213
Friend and Custodial Parent   )
of MICHAEL RYAN PAULEY,       )    Superior Court No.
a Minor,                      )    3AN-96-7400 CI
             Appellant,       )
     v.                       )    O P I N I O N
and JAMES O. GRAHAM,          )
                              )    [No. 5482 - October 5, 2001]
             Appellees.       )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.

          Appearances:  James Pauley, pro se, Anchorage. 
Howard S. Trickey, Jermain, Dunnagan & Owens, P.C., Anchorage, for

          Before:  Matthews, Eastaugh, and Bryner,
Justices.  [Fabe, Chief Justice, and Carpeneti, Justice, not

          MATTHEWS, Justice.

          The question presented in this case is whether a school
principal who released a child to his mother a few days in advance
of the mother's Christmas vacation visitation rights is protected
by the doctrine of qualified official immunity from a suit by the
father.  We answer in the affirmative because the conditions for
the application of the doctrine are satisfied.    
          Custody of Michael Pauley has been disputed by his
divorced parents, James and Teri Pauley, since 1989.  In 1990 James
and Teri stipulated that both parents would have joint legal
custody, but James would have primary physical custody.  Michael
would live with James during the school year, but was to visit Teri
for summer and Christmas vacations.  
          On August 2, 1994, the superior court ordered a
modification, granting sole legal custody to James, while
maintaining the visitation schedule described above.
          In the fall of 1994, concerned about the possibility that
Teri might attempt to abduct Michael, James contacted Michael's
school principal, James Graham.  Graham requested and James sent a
copy of the August 1994 custody order.  On November 23, 1994, the
superior court stayed enforcement of this order, pending the
investigation by Alaska and Washington agencies of allegations made
by Teri regarding James's conduct toward Michael. 
          On December 13, 1994, Graham called James and told him
that Teri was at the school to pick up Michael for Christmas
visitation.  James expressed his opposition to her picking up
Michael, noting that it was not yet Christmas vacation.  Friday,
December 16, 1994, was the last school day before the Christmas
recess.  Teri was accompanied by an Anchorage police officer. 
Graham verified Teri's identity by examining her identification and
requesting verification by the police officer.  Graham possessed a
copy of the August 2, 1994 order, which ratified the previously
stipulated visitation without specifying the terms of such
visitation.  Teri produced a copy of the original 1990 stipulation
granting her Christmas visitation.  Following discussion with the
police officer regarding whether the school could release Michael
to Teri, Graham permitted Michael to leave school with Teri. 
          Teri refused to return Michael to James following
Christmas vacation.  The superior court revoked its stay on January
24, 1995, and ordered that Michael be returned to James.  James
ultimately had to petition for a writ of assistance in Washington,
and was not able to secure Michael's return until April 28, 1995.
          On September 12, 1996, James filed a tort claim on behalf
of himself and Michael, against the Anchorage School District and
Graham (hereinafter "the District").  In his complaint, James
sought damages, alleging that Graham's release of Michael to Teri
was negligent and constituted intentional interference with James's
custodial rights.  
          The District moved for summary judgment against James on
several grounds, including a claim that its conduct was protected
by the doctrine of qualified immunity.  The superior court granted
the District's motion and this appeal followed. 
          Under AS 09.65.070(d)(2) tort actions may not be brought
against a municipality or municipal employees if the claim "is
based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty . . . whether or not
the discretion involved is abused."  This statute expresses a type
of official immunity.  "For purposes of official immunity,
'discretionary' actions are those that require 'personal
deliberation, decision and judgment.'" [Fn. 1]  This type of
discretionary immunity differs from immunity for discretionary
actions in a sovereign immunity context.  In the latter context the
usual inquiry is whether the act in question should be regarded as
operational, and thus not immune, or policy based, and thus immune.
[Fn. 2]  Further, while discretionary function immunity for
sovereign immunity purposes is not qualified, discretionary
function official immunity is qualified. [Fn. 3]  "Under a rule of
qualified immunity, a public official is shielded from liability
only when discretionary acts within the scope of the official's
authority are done in good faith and are not malicious or corrupt."
[Fn. 4]    
          Graham's acts in permitting Michael to be taken from
school by his mother were clearly discretionary in character. [Fn.
5]  Graham acted with deliberation and made a considered judgment
after calling James, verifying Teri's identification, discussing
the matter with the police officer, and reviewing the court
documents that Teri had in her possession.  It is also clear that
Graham's actions were in no sense malicious, corrupt, or taken in
bad faith. [Fn. 6]  Therefore, both Graham and the Anchorage School
District were protected by qualified immunity and this case was
properly dismissed.  
          Our disposition based on this issue makes it unnecessary
to discuss the other points raised in this appeal.


Footnote 1:

     Samaniego v. City of Kodiak, 2 P.3d 78, 83 (Alaska 2000)
(quoting Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 155
(Alaska 1987)).

Footnote 2:

     See Aspen Exploration, 739 P.2d at 155.

Footnote 3:

     See id. at 157-58.

Footnote 4:

     Id. at 158.  Where it is alleged that an official has violated
a statute, qualified immunity may be overcome "if the officials
have violated 'clearly established' law, unless the officials can
prove that they non-negligently were not aware of the law." 
Integrated Resources Equity Corp. v. Fairbanks North Star Borough,
799 P.2d 295, 301 (Alaska 1990).  In claims of excessive force
brought against a police officer qualified immunity will be
sustained if "a reasonable official could have believed the
challenged conduct was lawful in light of clearly established law
and the facts of the case."  Samaniego, 2 P.3d at 84 (quoting
Mathis v. Sauser, 942 P.2d 1117, 1125 (Alaska 1997)). 

Footnote 5:

     A similar decision was found discretionary in Tango v.
Tulavech, 459 N.E.2d 182 (N.Y. 1983), where a probation department
supervisor authorized the release of children to their mother over
their father's protest.  There the court stated, the 

          defendant . . . conferred with the parents and
the children, she inspected the documents presented and examined
the children for signs of abuse, and she necessarily exercised
judgment as to whether the . . . action was appropriate. . . .  But
even if her ultimate determination was incorrect, she is immune
from suit because she acted within the scope of her discretionary
authority . . . .

Id. at 186.

Footnote 6:

     James affied in opposition to the motion for summary judgment
that Graham did not act reasonably and, despite James's concerns,
"decided to do his own thing, in violation of some of the School
District's very own policy and procedures."  James does not explain
what the policy and procedures he mentions are.  The claim that
Graham acted unreasonably and not in accordance with James's wishes
does not raise genuine issues of material fact as to whether the
"good faith/not malicious or corrupt" standard has been satisfied.