Arnzen v. State

Joseph ARNZEN, Plaintiff-Appellant, P. Idaho,

STATE of Mack W.

Director of Law Enforce-

ment, V, through and John Does I De-

fendants-Respondents.

No. 19628.

Supreme Idaho, Court of

Boise, October 1992 Term.

May

Rehearing July Denied

Randall, Cox, Lewiston, & for Blake Chapman ar- plaintiff-appellant. Scott M. gued. Smith, Hull, Boise,

Quane, for Howard & Phillip defendants-respondents. J. Collaer argued.

McDEVITT, Chief Justice. OF THE CASE NATURE (“Arnzen”), Appellant, Joseph P. Arnzen appeals summary judgment from the summary In granting judg- district court. ment, the court district dismissed two respondents against U.S.C. 1983 claims (“State”) and Mack W. Rich- State (“Richardson”) capaci- ardson in his ty as Director Law (“Department”). Enforcement court finding that neither these claims dismissed “person” respondent as word is addition, in 42 used U.S.C. 1983. (wrongful state claims ter- court dismissed mination, contract, breach intention- contract) against awith re- al interference finding that Arnzen had failed spondents, un- to exhaust his administrative remedies chapter title Idaho Code. After der order, summary judgment initial granted respondents' motion re- court remaining consideration and dismissed against claim 42 U.S.C. 1983 Richardson dismissing capacity. his individual claim, the remaining federal court rea- it clear soned that under law was not surrounding circumstances resignation Department of Enforcement con- Law discharge. constructive For the stituted below, part reasons stated we affirm part, reverse the decision of district court. hearing. prayed Amzen for dam AND nation

BACKGROUND PRIOR ages rights, wrong violation of civil PROCEEDINGS discharge, give notice and ful failure On a com- October Amzen filed to be heard. plaint jury demand trial 27, 1990, respondents On November filed individually State and both judgment. Along summary for motion capacity his as Director motion, (3) respondents filed three with the Department. complaint, In the al- Arnzen affidavits, which supporting the follow- leged by that he had been the employed ing asserted: was Department, provided and that he was with of Moore 1. Affidavit Ron Moore: was employment an handbook dictated which supervisor. On Arnzen’s November obligations the and em- employer by he was told the “Boise office” to ployee provided grievance proce- for a resign tell Arnzen that either he could or 18, 1989, during dure. On October discharged. regard, “[ajffiant be In this with Department, the he then Mr. Arnzen that if he refused advised alleged charged violating that he was with resign, he would fired.” be On June 36-1101(e) (1976), I.C. to at- relating grievance Moore received a tempting to kill a deer with of an the aid Arnzen, grievance but that was denied be- light. artificial When his Arnzen asked untimely. receiving it was cause Since the supervisor, (“Moore”), Captain Ron Moore grievance, June Moore has not re- him, what the would do to he any appeal further of ceived notice or other alleged responded, that “[njothing. Moore documentation from Arnzen. might You your lumps to take have 2. Affidavit of Kris Michalk: Kris Mi- court.” then alleged Arnzen in reli- that (“Michalk”) chalk is a claims technician for ance statement, on pled guilty Moore’s he Management. of the Bureau Risk On Feb- charge, to the $127.50, fined was and had 7, 1990, ruary he reviewed a claim for his hunting suspended (1) license for one damages by attorney. filed Arnzen’s After year. 20, 1989, On October Arnzen review, attorney Michalk informed that placed that he was on administrative leave appeared it that the claim could not be pay with pending investigation, an and that comply due to honored failure to with ad- Moore any- told him that he did not have 5, 1990, ministrative remedies. On March thing to worry about. On October attorney he received letter from Arnzen’s 1989, investigators came to Arnzen’s home requesting copies grievance of proce- and took a written statement from him. the Department. dure of On March On November Moore came to Arn- 1990, provided he attorney Amzen’s zen’s home and informed him that copies. the requested Boise office had decided that Arnzen would 3. Affidavit of Mack W.Richardson: In be fired resign. if he did not October Richardson was made three listed counts in the com charge against aware Amzen and plaint: (1) the acts of respondents denied subsequent his conviction. On October him of his rights, constitutional U.S. Const. 1989, put Amzen was on administrative XIV, amend. V and and violated 42 U.S.C. pay pending investigation. leave with an 19831; (2) respondents the acts of violat 2, 1989, On investiga- November after the contract; ed the employment he tion, it was recommended Arnzen be discharged was process without due of law terminated but the opportunity to because he was not afforded pre-termi resign. On November Richardson 1. This rights, privileges, federal statute reads in full: or immunities secured laws, Constitution and shall be liable deprivation rights to the 1983. Civil action law, who, injured statute, party Every person any equity, in an action suit in under color of ordinance, custom, proper proceeding regulation, or other usage, any redress. For or section, Columbia, Territory purposes any Congress State or or the District of this Act of subjects, any subjected, applicable exclusively be or causes to citizen to the District of Colum- person of the United States or other within the bia shall considered to be a statute of the jurisdiction deprivation any thereof District of Columbia. 11(a)(2)(B). pertained to the The motion signed a letter of termination addressed However, to dismiss the federal ad- court’s decision not Amzen. Richardson was resign. in his individual Amzen chose to On claim Richardson vised that Richardson was advised capacity. June filed a and that Amzen had filed the day, respondents On the same untimely. Rich- denied as sup- R. Monte MacConnell affidavit of any subsequent has not received ardson for reconsideration. port of the motion appeal or other documentation notice of affidavit, stated that he Mr. MacConnell from Arnzen. the Director of the Counsel to was Chief Arnzen filed On December con- he was Department. this jury demand for complaint amended proper procedure for regarding sulted it, of action In he added a cause trial. Arnzen. He ad- disciplinary against action or interference regarding tortious breach placed Arnzen on administra- vised that with a contract. investiga- pay pending an leave with tive that state Subsequently, he advised tion. Arnzen filed Along complaint, and he rec- affidavit, permit termination law would In his Arnzen stat- an affidavit. He then re- that this be done. unwillingly resign. forced to ommended ed that he was advised addition, grievance the termination letter and In he stated that viewed filing resign. provide option for the of procedure does not Arnzen be that by discharged person since a a a argument on The district court heard longer “super- person no has a discharged 29, August on motion for reconsideration Further, alleged that visor.” 4, 1991, the court September 1991. On filing him that a Moore told on the motion opinion its and order issued act, “you know and that would be a futile stated the The court for reconsideration. giving you your job back.” they are never defendant, Mack W. issue as “whether he did Finally, Arnzen that because capacity is enti personal in his supervisor and because not have liability immunity from qualified tled to Moore, he did not file a statements court, citing The 42 1983.” under U.S.C. § attorney. grievance until he talked with an 613, Webb-Petett, F.2d 619 v. Wheaton 1991, 4, filed an January respondents On Cir.1991), in order to (9th reasoned that things, they assert- Among other answer. immunity qualified determine whether (1) liability because immunity ed: from liability, it must shields Richardson purposes of 42 “persons” for they are not law, “whether, preexisting light ask 1983; (2) liability immunity from U.S.C. § actions of the official’s the unlawfulness Code; chapter of title by virtue him reasonably apparent to must have been (3) Amzen’s constitution- deprivation no “it that The court concluded or her.” rights; Arnzen’s claim is barred al reasonably apparent” not have been would the Consti- by the Eleventh Amendment to his actions were to Mr. Richardson tution of the United States. the law. Further clearly in violation of more, heard law is July the district court stated that “Idaho On the court respondents’ requesting motion argument oral on or not as to whether unclear partially court summary judgment. resignation can consti employee’s public motion, dismissing the causes granted discharge employ tute constructive against the State and Richardson of action In this under certain circumstances.” ee so, doing capacity. in his official compared v. Mi the court Jackson regard, respondent to be court found neither Dist., 98 Idaho Irrig. nidoka In addi- “person” under U.S.C. Dist. No. with Knee v. Sch. claims tion, the state the court dismissed County, 106 Canyon found that against respondents because it denied, and (Ct.App.1984),review P.2d 727 his administra- Amzen had not exhausted concluded that: tive remedies. decisively under Ida- Although clear it has a public employee that a ho law respondents moved August On em- in continued property interest vested pursuant to I.R.C.P. for reconsideration State, act of the State while requiring that he or she or an official ployment, thus hear- be afforded notice and some sort of capacity, is a ing in his or her official ing employment, it before termination of meaning U.S.C. ‘person’ within is unclear on the facts of this case that Michigan Dep’t State 1983.” v.Will surrounding Mr. Arn- the circumstances Police, 109 S.Ct. resignation constituted constructive (1989). The Court L.Ed.2d 45 discharge triggering requisite these a State nor its officials held “that neither process protections. Perry v. Sinder- ‘per capacities are acting in their official mann, 593, 599[, U.S. S.Ct. Will, 491 sons’ under 1983.” U.S. (1972); 33 L.Ed.2d Harkness 570] explained that “a suit 109 S.Ct. at 2312. It 353[, 715 City Burley, against in his or her official a state official (1986). P.2d 1283] capacity against is not a suit the official Thus, granted respondent’s the court mo- against the official’s rather is a suit but tion for reconsideration and dismissed such, As it is no different from against cause of action Richardson his office.... capacity. judg- individual An order and Will, 491 a suit the State itself.” September ment was issued on (citations 71, 109 omit U.S. at S.Ct. at 2311 fully granting respondents’ motion for decision, ted). reaching its the Court respon- summary judgment awarding recognized that 1983: § in dents costs. $110.55 remedy a federal forum to [Provides 23, 1991, Arnzen filed a no- On October liberties, many deprivations of civil but it 11(a)(1). appeal pursuant tice of to I.A.R. provide does not a federal forum to liti- 6, appealed August He 1991 or- remedy gants against who seek a a State der, September opinion 1991 deprivations for of civil liberties. order, September and the 1991 order. such The Eleventh Amendment bars suit APPEAL

ISSUES ON immunity, unless the State has waived its Congress or unless has exercised its appeal, In order to resolve this must ... we following address the issues: power undoubted under 5 of the Four- § ruling I. the district in Was court correct im- teenth Amendment to override that Richardson, that State munity. capacity official as Director the De- Will, 491 U.S. at 109 S.Ct. at 2309 partment, “persons” were not as that (citations omitted). word is used in 42 U.S.C. 1983? § ruling II. Was the district court correct in Congress, passing It is clear “[t]hat that capaci- had no intention to disturb § ty, qualified immunity? was entitled to Eleventh Amendment immuni- States’ III. theWas district court correct in dis- Will, ty. 491 at 109 at ...” U.S. S.Ct. missing the State claims because Arnzen Quern Jordan, citing 440 v. U.S. failed to exhaust administrative reme- (1979). 99 59 L.Ed.2d 358 We S.Ct. dies? Quern interpreted only have to “hold not abrogate 1983 does not the states ANALYSIS immunity, eleventh amendment but [sic] I. holding ‘persons’ also as that states are not State, purposes for 1983.” Merritt v. THE WAS DISTRICT COURT CORRECT 20, 26, (1985). 877 108 Idaho 696 P.2d IN THAT THE RULING STATE AND RICHARDSON, IN HIS OFFICIAL Idaho, Thus, that, it is clear THE

CAPACITY AS DIRECTOR OF DEPARTMENT, State, purposes of U.S.C. is WERE NOT “PER- SONS” AS THAT IN WORD IS USED “person.” Additionally, not it is clear 1983? U.S.C. § acting in against that a suit a state official nothing more his or her official is Supreme The United States Court has state, and, thus, recently question addressed “the whether a than a suit deprived not be capacity state official in his or her tinued could pro not, property of this interest without purposes of U.S.C. § Burley, City cess of law. Harkness v. “person.” (1986); Cleve Loudermill, 470 Bd. Ed. v. U.S. land II. 1487, 1491, 84 L.Ed.2d 105 S.Ct. THE (1985). WAS DISTRICT COURT CORRECT equally It was well-established RICHARDSON, minimum, IN THAT process requires, RULING at a that due CAPACITY, no contemplated IN HIS INDIVIDUAL notice of the action and QUALIFIED upon relied ENTITLED tice of the basis and evidence WAS TO action, oppor contemplated for the IMMUNITY? Loudermill, 470 at tunity respond. to U.S. Fitzgerald, Harlow v. 457 U.S. compo 105 S.Ct. at 1495. The first 2727, 2738, 73 L.Ed.2d 102 S.Ct. process requirement, nent of the due no (1982), Supreme the United States tice, may an oral or written notification be “government per officials Court held that charges against employee forming discretionary generally functions supporting those the basis and evidence liability damages are shielded from civil Loudermill, charges. U.S. not violate insofar as their conduct does component of at 1495. The .second S.Ct. clearly statutory or constitu established process requirement, the due rights person a reasonable tional which opportunity for the em respond, is an Later, in would have known.” Anderson writing, ployee, person or in either 635, 640, 107 S.Ct. Creighton, “why present proposed his or her reasons 3034, 3039, 97 L.Ed.2d 523 the Unit should not taken....” Louder action Supreme explained ed Court States mill, 546, 105 S.Ct. at 1495 470 U.S. at contours of the must be suffi “[t]he added). course, (emphasis as our em Of ciently clear that a reasonable official indicates, respond phasis opportunity the to doing understand that what he is would administrative place must take before the right.” recently, in violates that More specifically, More action occurs. — U.S.-,-, Bryant, Hunter v. to opportunity must have been 534, 537, (1991), 116 L.Ed.2d 589 the S.Ct. charges against him before respond to the Supreme further ex- United States Court made the decision to terminate the State plained qualified immunity protects the “all employment Depart the him from with plainly incompetent or those who but the ment. law,” knowingly quoting Malley the violate 106 S.Ct. Briggs, v. U.S. A Conduct Violate B. Did Richardson’s (1986), by “accomo- 89 L.Ed.2d 271 Clearly Right Of Established Thus, in dating] error.” reasonable zen’s? whether in order to determine qualified immunity prong This of the qual- was entitled to (1) compound question: did analysis is a immunity, ified we must ask: right; clearly a established Arnzen have law; clearly 1. Was there a established (2) it? conduct violate did Richardson’s 2. Did Richardson’s conduct violate a in order question, As to the first Arnzen’s; right clearly established property interest for Arnzen to have a Depart employment continued with reason- 3. Was Richardson’s conduct ment, more than an he must have been able? Harkness, 110 Idaho at employee at will. employee 1286. 715 P.2d at “[A]n Clearly A Established A. Was There speci to a contract which pursuant ‘hired Law? employment, or fies duration employee at the for which the abundantly It is clear that limits the reasons arose, employee not an ‘at public employees may discharged’ time this action ” Harkness, 110 Idaho at property had interest in con- will.’ who a public of- reasonably competent a quoting MacNeil v. Minidoka whether P.2d at known Hosp., 108 Idaho would have Memorial ficial in Idaho (emphasis original). P.2d employee possessed who public that a Tiffany City Payette, employ- in their continued property interest that an we held hearing right notice and a ment had the employee property have a interest did employment. termination before employment City continued with — 537; at-, Hunter, 112 S.Ct. at U.S. em- Payette “permanent” where she was a at 2738. Harlow, at 102 S.Ct. according employ- ployee to the terms of an case, Therefore, if the law present in the was, thus, policy manual and entitled to ee Arnzen, as clearly established protections the manual. procedural employee of the State “classified” case, dispute parties In this do not status, was entitled to due “permanent” employee Arnzen’s status aas “classified” “im- guarantees, then Richardson’s process “permanent” of the State with status. ordinarily fail since munity defense should Thus, procedur- Arnzen was entitled to reasonably competent public official policy procedure protections al governing his con- should know law as, least, manual, minimum as well at Harlow, 457 at 102 S.Ct. duct.” U.S. protections. process due at 2738. question, As to the second we must look Recently, this reiterated that a Court to the facts to determine if Richardson’s public employee pursuant who is hired right pro- conduct to due violated Arnzen’s specifies contract which duration affidavit, According cess. to his Richard- reasons for termi- employment or limits the signed a letter termination ad- son property interest in continued nation has a dressed to Arnzen on November 1989.2 So, employment. Tiffany, the decision to terminate Arnzen oc- Idaho at curred on November 1989. Prior to this we held that a decision, there was no notice or public employee property who has a inter- words, to be heard Arnzen.3 In other ter- est in continued cannot be (his Richardson’s conduct decision to termi- being given process. minated before Arnzen) nate violated Arnzen’s to Harkness, P.2d at 110 Idaho at process protections. minimal due Additionally, we held: 3. Was Richardson’s conduct reason- permanent employee, employ- whose [A] able? ment is not terminable at the will of prong employee employer,

The third either the or the qualified immuni- ty analysis requires property this to in or her Court ask holds interest 2. The letter of read: termination A/ Richardson, 3, Mack W. Jr. November 1989 Cpl. Joseph P. Arnzen Director HCL 1 Department of Law Enforcement Box 34 Hutchinson, c: Richard IPC Nezperce, Idaho 83543 Humpherys, Col Rich ISP Cpl. Dear Arnzen: Moore, Capt Ron ISP Investigative Report I have reviewed the con- Butler, John DLE your by ducted as a result of arrest an of officer McConnell, Monte DLE Department the Idaho Fish and at- Game tempting too kill a deer with the aid of an [sic] placed We that Arnzen was on adminis- note light your subsequent artificial conviction pay pending investigation trative leave with an 36-1101(e). a violation of Idaho Code prior decision to terminate him. to Richardson’s your part being I consider this action on as fact, In Arnzen received written notification that good discipline detrimental to order and within suspension "pending investigation an of and in accordance with Idaho your recent Fish and Game criminal 19.A.l.e, Personnel Commission Rule I am ter- Although violations.” the record reveals that minating your employment Corporal as a investigators took a written statement from PM, the Idaho State Police effective 5:00 Novem- Arnzen, supervisor’s it does not reveal what his 6, ber time 1989. Your accumulated vacation were, complaints concerns or or the extent to paid you lump 139.72 hours will be to in a sum. respond. had an to which Arnzen Sincerely, 906

position. Allen v. Lewis-Clark State set forth the of exhaustion of adminis- rule 447, 6, College, 105 Idaho 460 n. 670 P.2d trative remedies as follows: 854, (1983) (“A n. 6 employ 867 term of general While as a rule administrative property ment set contract is a inter remedies should be exhausted before re- safeguarded by process.”); est due Bowl challenge sort is had to courts to Trustees, 537, er v. Board 101 Idaho acts, validity rule of administrative such (1980) (Teacher’s 617 P.2d 845 departed is not absolute and will be rights interest in renewable contract require, justice where the interests of so property continued was a apply the rule unless the does not interest); Ferguson v. Board Trust agency administrative acts within its au- ees, 98 Idaho 564 P.2d 976 thority. (1977), denied, cert. (1977) (Teach S.Ct. 431 L.Ed.2d [54 299] Breweries, Bohemian Idaho at right er’s to automatic annual renewal of consistently P.2d at 879. This Court has discharged contract and not to be this rule. followed Grever v. Idaho Tel. except gave property for cause interest Co., we employment.). in set forth the rule as follows: As Chief Justice Donaldson wrote for a doctrine of exhaustion of adminis- [T]he Court, employee unanimous an “hired generally requires trative remedies pursuant specifies to a contract which gamut run full case adminis- employment, the duration of the or limits proceedings application trative before an employee may the reasons for which judicial may relief be considered. discharged” employee not “at will.” MacNeil v. Minidoka Memorial

Hospital, 108 Idaho 701 P.2d added). (emphasis relaxing the doctrine exhaustion Harkness, this Court held that the rule will be de- 110 Idaho at 715 P.2d at (footnote omitted). circumstances, We hold that the parted from under certain clearly law was established in 1989 that first, justice so where the interests Arnzen, “permanent” as a “classified” and require secondly, agency where the State, employee property inter- had authority. acts outside its Therefore, in employment. est continued Grever, 94 Idaho at 499 P.2d at Richardson, in terminating Arnzen without Breweries, citing Bohemian 80 Idaho at process, reasonably did not act as a (footnotes omitted). P.2d at competent public recently, recognized the More we have ex- We further hold that haustion rule as set forth Grever was not entitled Dev. Fairway Bohemian Breweries Co. qualified immunity; clearly the law was County, v. Bannock property established that Arnzen had a (1990). right process guarantees to due before he terminated, was Richardson’s conduct vio procedures De- policies and property right, lated Arnzen’s and Richard partment four-step grievance set forth reasonably son’s action was not that of a step, optional, process. The first which is competent public Idaho 1989. grievant’s is a discussion with the “immedi- supervisor.” Dep’t ate Law En-

III. Procedure, DLE forcement, Policy and 89-304, (Effective 10/01/89). THE p. WAS DISTRICT COURT CORRECT The sec- IN THE DISMISSING STATE step grievant file a requires ond the ARNZEN CLAIMS BECAUSE grievance or her “immedi- written with his FAILED TO EXHAUST ADMINIS- or, supervisor,” person ate if is not TRATIVE REMEDIES? available, supervi- his or her “next-level 89-304, Koehler, pp. DLE 2-3. After receiv- sor.” Bohemian Breweries v. ing “suggested from the “sec- this Court solution” ap- remedies step third re- haustion of administrative supervisor,” the ond-level “Request Therefore, plies. to file a the district court correct- quires grievant her with his or “second- for failure to Impartial ly Review” dismissed his state claims 89-304, pp. 3-5. supervisor.” DLE level remedies. exhaust his administrative impartial panel review hears the After an its decision to the

grievance, it submits CONCLUSION Director. The Director grievant and the grievant “Depart- informs the then the district portion We affirm 89-304, p. DLE 5. Fi- ment’s decision.” dismissing opinion judgment and court’s grievant is then allowed to file an nally, the 1983 claims Arnzen’s 42 U.S.C. § 89-304, I.C. 67-5316. DLE appeal under Richardson, in his official the State p. 5. dismissing state law Amzen’s argues Arnzen that since he was portion of the We reverse that claims. and, fired, “supervisor,” he did not have a opinion judgment dis- district court’s therefore, griev comply could not with the claim missing Arnzen’s 42 U.S.C. process. argument This is flawed for ance capaci- against Richardson First, record two reasons. discloses ty. that Arnzen did file a with appeal. No costs on Moore, supervisor, his on June further that Arnzen’s The record reveals Depart processed by was BISTLINE, JJ., and JOHNSON and ultimately being unt

ment and denied as Tern., BAIL, J. Pro concur. Second, imely.4 accept if we were to Arn argument, every employee Tern., who is dis BAKES, concurring. Justice Pro employment Depart missed opinion, I and write concur the Court’s ment would be without administrative re fully developed only to note that a more course. might record disclose that no Loudermill argues Arnzen also that the rule of in this case. process violation occurred exhaustion should be relaxed because out, p. points ante As footnote Department Moore had told him that the given zen written notification that his was give him job would never back. Essen suspended of his because tially, making futility argu Arnzen is violation, game and he was fish and grievance procedure ment. The sets forth to, give and did a written steps. steps four The first two involve the statement, may the contents of which have grievant’s supervisor. step The third in process satisfied his due “to re- impartial panel, consisting volves an review However, spond.” the record is not suffi- grievant by of reviewers chosen ciently developed support trial employed by who are not summary judgment court’s case. this grievant’s particular agency. DLE 89- 304, p. sets forth no reasons

why meaning he would not be afforded a panel.

ful review this Our examination reasons

of the record likewise reveals no appeal

why impar an administrative to the panel be futile for Arn review would

tial

zen. Arnzen has failed to show that

Because

justice requires relaxation exhaus-

tion rule or that the acted out- authority, general

side its rule of ex- grievant you procedure requires 4. "from the time are notified or become 89-304, days grievable p. to file his or her within five aware of a matter.” DLE

Case Details

Case Name: Arnzen v. State

Court Name: Idaho Supreme Court

Date Published: May 13, 1993

Citation: 854 P.2d 242

Docket Number: 19628

Court Abbreviation: Idaho