Mary HILL d/b/a Wild Rose Gardens Assisted Living Home, Appellant, v. Linda GIANI, State of Alaska, Department of Health & Social Services, and Staci Collier, Appellees.
Nos. S-13693, S-13713.
Supreme Court of Alaska.
March 8, 2013.
8. The long-term protective order entered in March 2012, including the provisions for interim custody as they may relate to the Fidlers’ divorce proceedings, is VACATED and the case is REMANDED for further proceedings. We do not retain jurisdiction.
Entered by direction of the court.
Marc W. June, Law Offices of Marc W. June, Anchorage, for Appellee Linda Giani.
Janell M. Hafner, Assistant Attorney General and Daniel S. Sullivan, Attorney General, Juneau, for Appellees State of Alaska, Department of Health and Social Services and Staci Collier.
Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.
OPINION
PER CURIAM.
I. INTRODUCTION
Mary Hill, the owner of an assisted living home, sought damages from Linda Giani, an independent care coordinator; the Department of Health and Social Services (DHSS); and Staci Collier, a state licensing specialist; for alleged economic harm caused by a Report of Harm filed by Giani, which resulted in the removal of one of Hill‘s residents and a subsequent investigation conducted by Collier. The superior court granted summary judgment: to DHSS and Collier on Hill‘s state law tort claims on the basis of immunity under
Giani cross-appeals the court‘s grant of attorney‘s fees under Alaska Civil Rule 82. In light of our reversal of summary judgment, the attorney‘s fee awarded to Giani is vacated.
II. FACTS AND PROCEEDINGS
A. Facts
Hill owns and operates Wild Rose Gardens Assisted Living Home (Wild Rose), an assisted living home in Palmer licensed for four residents. J.H. moved into Wild Rose in the mid-1990s at the age of 18 and continued to live there until 2005.1 J.H. has diagnoses of mental retardation, severe psychomotor seizure disorder, Raynaud‘s Syndrome, B-Thalassemia, Oppositional/Defiant Disorder, and symptoms associated with Asperger‘s Syndrome. Giani became J.H.‘s independent care coordinator in 1999. As a State-certified care coordinator paid by the State, Giani‘s responsibilities included coordinating services between government agencies, providing information to parents, and developing and enforcing plans of care.2 A team of people assisted with J.H.‘s care at Wild Rose, including Larry H., J.H.‘s father and legal guardian; Giani; the Ready Care agency, which coordinated J.H.‘s care, paid Giani, and supplied aides to assist Hill during the day; and Hill.
In 2005 Hill told Larry H. that “they should start looking for another placement for J.H.” because Hill was unable to provide appropriate care for and was “not making progress with” J.H. According to Larry H., Hill said that J.H.‘s behavior was “making it just too difficult for her to handle.” Larry H. also testified that Hill was suffering from migraines and could not come to the door at times during his visits to Wild Rose, which he felt was an “additional reason to believe that [Hill] could not take care of [J.H.] properly and [that J.H.] would have to find a new place to live.”
On May 12, 2005, Giani submitted a Mental Retardation and Developmental Disability Plan of Care (Plan of Care) for J.H. covering the period of June 1, 2005 to May 31, 2006, which set forth goals and objectives for J.H.‘s care and was to be submitted to the State for funding approval. Giani described J.H.‘s condition, placement, care providers, and the status of her treatment and care at Wild Rose. Giani noted that over the prior year there had been “increases in oppositional/defiant behaviors, increases in violent behaviors, and regression in all skill areas” which “required a significant increase in verbal and non-verbal cueing, prompts and modeling, physical assistance, and supervision and monitoring [to] meet her needs and insure her health and safety.” Giani then stated that “[J.H.‘s] team care[s] very deeply about her health, safety, and welfare” and that “[J.H.] loves her home environment and all of her care providers and often expresses that she never wants to leave [Hill‘s facility].” The Plan of Care also referred to a “Behavior Modification Plan” for J.H., “in which consequences include loss of recreation privileges in the community.” Later, in a section titled “Goals and Objectives,” Giani noted that J.H. would “receive positive feedback and incentives for appropriate social interactions” and negative feedback “via brief reminders, leaving the room, her ‘audience’ leaving, or loss of preferred social activities” for inappropriate interactions.
According to Hill, on August 1, 2005, Giani “unexpectedly” informed Hill that Giani was going to move J.H. According to Larry H., although Hill had “changed her mind” about wanting to find a new placement for J.H., he “did not change [his] mind about the need to have [J.H.] move to a new residence“; he was also “concerned that [Hill] would change her mind again and continued to be concerned about [Hill‘s] headaches and her physical ability to care for [J.H.].” According
On August 2, 2005, Giani filed a confidential Report of Harm for the Protection of Vulnerable Adults (Report of Harm) with DHSS pursuant to
The incidents alleged in the Report of Harm include Hill repeatedly “yelling at [J.H.] and calling her stupid” and “repeatedly telling [J.H.] that she doesn‘t deserve to live at [Wild Rose]“; confinement of J.H. to her bedroom for most of the 2004-05 winter as a result of perceived bad behavior; denial of visitation to J.H.‘s father; forcing J.H. to shower four times within a 30-minute period because she was unable to rinse soap out of her hair; refusing to readmit J.H. after sending her to Alaska Psychiatric Institute (API) and Providence Hospital for psychiatric evaluation; and defensive behavior by J.H.—such as covering her face with her hands when asked questions—over the two weeks preceding the Report of Harm. The Report also noted that Hill had notified Giani and Larry H. that she was no longer able to provide J.H.‘s care because J.H.‘s behavior was “out of control,” that Giani had identified a potential new placement and requested Hill‘s cooperation with a transition, and that Hill had then informed Giani that she “changed her mind and wanted to keep [J.H.].” The Report stated that after Hill decided that J.H. should remain at Wild Rose, Giani, Larry H., and the Ready Care staff noticed a significant change in J.H.‘s behavior and believed that she might have been experiencing mental and verbal abuse that had “been occurring over a period of several years.” Finally, the Report stated that Giani believed J.H. was not getting the attention, assistance, or proper nutrition she required because Hill‘s health was declining, and concluded that J.H. should be “removed from the home immediately.”
On August 11, 2005, J.H. was removed from Wild Rose.
Giani‘s Report of Harm triggered an investigation by DHSS, as required by statute.4 Collier, a state licensing specialist, investigated Giani‘s Report of Harm by visiting Wild Rose, Ready Care, and J.H.‘s new assisted living home, and interviewing Giani, Hill, J.H., Larry H., J.H.‘s doctors, and others at Ready Care.
According to Hill, on September 14, 2005, Collier called Hill and told her that she wanted Hill to “show [her] cooperation” with the investigation by faxing a letter to DHSS stating that she would not take any new clients until the investigation was complete. Hill believed that this was a formality, “didn‘t think [the investigation] would take long,” and “wanted to be cooperative,” so she submitted a fax stating that she would not take any new residents. Hill admitted in an interrogatory that “during the course of a September 14, 2005 telephone conversation with Staci Collier, [she] agreed to stop taking further clients.”
On November 7, 2005, Collier issued a Report of Investigation and Notice of Viola-
On November 18, 2005, Hill filed an administrative appeal in which she contested DHSS‘s actions and requested a hearing. A hearing was scheduled for February 22, 2006.
On February 10, 2006, the Office of the Attorney General sent a letter to Hill‘s attorney informing him that DHSS was withdrawing the Notice of Administrative Sanction because a newly adopted senate bill changed the expiration date of Wild Rose‘s license such that a final decision on Hill‘s administrative appeal would “most likely not be rendered” until Wild Rose‘s license was “nearly set to expire.” The letter stated that DHSS‘s decision to withdraw the Notice of Administrative Sanction rendered Hill‘s administrative appeal moot, and that DHSS had thus filed a Motion to Dismiss. The letter noted, however, that the decision to withdraw the Notice of Administrative Sanction did not affect the validity of the Notice of Violation and corresponding Report of Investigation, and that Wild Rose was still required to comply with the Order of Correction. Hill did not oppose the Motion to Dismiss.
B. Proceedings
On August 7, 2007, Hill filed suit against Giani, Collier, and DHSS. Hill‘s second amended complaint included claims for: (1) negligent supervision against DHSS; (2) intentional interference with contract rights against Collier; (3) intentional interference with prospective economic advantage against Collier; (4) a federal due process violation under
DHSS and Collier moved for summary judgment on the grounds that Hill‘s state law tort claims were barred by
On July 21, 2009, after hearing oral argument, the superior court granted both motions for summary judgment. The court denied Hill‘s motion for reconsideration.
Giani cross-appeals the superior court‘s award of attorney‘s fees to her, claiming that the court erred in awarding her Rule 82 rather than Rule 68 fees because she made and beat a $10 offer of judgment given in good faith.
III. STANDARD OF REVIEW
We review grants of summary judgment de novo.6 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.”7 We construe the facts in the light most favorable to the non-moving party and review the trial court‘s factual findings under the clearly erroneous standard.8
The applicability of both state and federal immunity are questions of law that are also subject to de novo review.9
IV. DISCUSSION
Hill raises three arguments on appeal: (1) it was error to grant summary judgment to DHSS because DHSS is not immune under
A. The Superior Court Properly Granted DHSS And Collier‘s Motion For Summary Judgment On Hill‘s State Law Tort Claims Based On Immunity Under AS 47.32.160(a) .
Hill argues that the superior court erred in granting summary judgment to DHSS and Collier on Hill‘s state law claims because the claims are not barred under
The superior court concluded that
Hill cites two cases to support her general assertion that DHSS is not immune under
Unlike the common law sovereign immunity at issue in Alaska Railroad Corp., the statutory immunity applicable to DHSS and Collier in this case was specifically granted by the Alaska Legislature. Under this circumstance, immunity for the State and its employees while undertaking licensing-related activities is the rule, rather than the exception.13 Unlike the statute discussed in Gates, which narrowly granted immunity for certain acts,14
In the alternative, Hill argues that even if her other state tort claims are barred by
In B.R. we held that the Alaska intentional tort immunity statute did not preclude claims against the State by an inmate who was sexually assaulted by a State employee to the extent that the claims were based on either (1) a breach of the duty to supervise employees other than the intentional tortfeasor employee, or (2) a breach of the State‘s independent protective duty to prevent assault.16 We explained that the intentional tort immunity statute did, however, preclude the inmate‘s negligent supervision claims against the State “to the extent that they merely assert[ed] breaches of the department‘s duty to exercise due care in hiring, training, and supervising the [intentional tortfeasor] as its employee.”17
Hill has not alleged that DHSS breached a duty to supervise employees other than Collier. Also, unlike the situation in B.R. where employees other than the intentional tortfeasor were identified as potentially contributing to the alleged harm,18 Collier was the only State employee who Hill alleges engaged in wrongful conduct. Thus, Hill‘s claim is not based on a theory that the State breached a duty to supervise employees other than the intentional tortfeasor, but is merely a claim that the State negligently supervised or trained Collier, a claim which is barred by
Hill also asserts that “the [S]tate has a duty to protect the vulnerable persons, at least the ones whom it undertook to protect,” suggesting that her negligent supervision claim may be based on a theory that the State breached an independent protective duty that it owed to J.H. Hill cites R.E. v. State, in which we held that the State Division of Family and Youth Services (DFYS) had a duty to exercise reasonable care in carrying out state licensing of daycare facilities because the State created a special relationship between the State and parents when it voluntarily undertook the responsibility of licensing, creating a duty to safeguard day-
Although R.E. might theoretically support a claim by Larry H. that the State had breached a protective duty it owed to him in negligently licensing Hill, it does not support a claim by Hill—a licensee—against the State. Hill does not offer any support for a negligent supervision claim based on a theory that the State breached a separate protective duty it owed to Hill.21
Because Hill has neither identified any State employees other than Collier who were involved in the investigation nor explained how the State breached a separate protective duty that it owed to Hill, we affirm the superior court‘s conclusion that DHSS was immune from liability for Hill‘s negligent supervision claim under
B. The Superior Court Properly Granted Summary Judgment To Collier On Hill‘s 42 U.S.C. § 1983 Claim.
Next, Hill argues that the superior court erred in granting summary judgment on her
Although Hill does have a protect-ed interest in her assisted living home license, we conclude that Hill‘s federal due process rights were not violated because the temporary and voluntary partial suspension of her license did not constitute a state deprivation of a constitutionally protected right.23
To assert a
In Button v. Haines Borough, we held that commercial tour permit applicants are entitled to due process of law during the permit application process; we cited earlier decisions in which we held that holders of liquor licenses, business licenses, limited entry fishing permits, hunting guide licenses, and driver‘s licenses have due-process-protected property rights in those permits and licenses.25 Similarly, in Herscher v. State, Department of Commerce, we held that the appellant‘s proprietary interest in his hunting guide license was of sufficient importance to warrant due process protection, stating:
It has long been recognized that an interest in a lawful business is a species of property entitled to the protection of due process. . . . This interest may not be viewed as merely a privilege subject to withdrawal or denial at the whim of the [S]tate. . . . Neither may this interest be dismissed as de minimis. A license to engage in a business enterprise is of considerable value to one who holds it.26
In this case, Hill has a protected property interest in her assisted living home license, which, like a guide license, enabled Hill to follow her “chosen pursuit” as a caregiver and owner of an assisted living home.27 As such, she was entitled to due process, or “notice and an opportunity to be heard,” prior to being deprived of her assisted living home license.28
2. Collier‘s actions did not deprive Hill of her property interest without due process of law.
A review of the record reveals that all of Collier‘s actions other than her September 14, 2005 request that Hill cease taking new clients were explicitly required or authorized by
Hill‘s federal due process claim therefore turns on whether Collier‘s request that Hill voluntarily and temporarily refrain from taking additional residents until the investigation was complete constituted a “deprivation” of Hill‘s property interest in her
The Tenth Circuit Court of Appeals reached the same conclusion when presented with a similar issue in McBeth v. Himes.31 Employees from the Colorado Department of Human Services (DHS) pressured McBeth to relinquish her daycare license after her son, who lived with her, was charged with sexual abuse of a child.32 The DHS employees informed her that if she voluntarily relinquished her license, it would be easier for her to have it reinstated later.33 McBeth relinquished her license but later claimed that the DHS employees violated her due process rights by coercing her into relinquishing her daycare license without notice of any violations and an opportunity to be heard.34 The Tenth Circuit disagreed, holding that “if one voluntarily relinquishes some property or liberty interest, then she cannot have a claim for a due process violation because no state official deprived her of that interest.”35
McBeth argued that her surrender was not voluntary but “coerced” by the DHS employees’ threat to suspend her license.36 The Tenth Circuit rejected this argument, reasoning that DHS employees provided McBeth with two alternatives: she could voluntarily relinquish her license and avoid having the incident marked on her permanent record, which could impair her ability to reapply for a license, or she could proceed with the administrative suspension proceedings.37 McBeth could not later claim “that she did not receive adequate process when she chose to forgo the process that she would have been afforded in a suspension proceeding.”38
Similarly, Hill argues that her agreement to stop taking residents was not voluntary. But Hill produced no admissible evidence to support this argument. The evidence before us indicates that Hill voluntarily agreed to stop taking residents until the investigation was complete,39 and unsupported arguments in pleadings do not raise genuine issues of material fact.40 Because Hill voluntarily agreed to refrain from taking new residents until the investigation was complete, she has failed to raise a genuine issue of material fact showing that Collier deprived her of her property interest. Accordingly, we affirm the superior court‘s grant of summary judgment to Collier on Hill‘s § 1983 federal due process claim.
AS 47.24.120 .
The superior court concluded that Giani was immune from liability under
Hill argues that the superior court erred in granting summary judgment to Giani on the basis of immunity under
Although we have not addressed
In Smith v. Stafford, we reviewed a grant of summary judgment based on qualified official immunity and held that Smith‘s sworn affidavit—which stated that a state social worker had staged photographs of garbage and beer cans around Smith‘s home to create false evidence implying he had an alcohol problem, and that the social worker had threatened that Smith would never see his child again if he complained about or questioned the official‘s authority—was sufficient to create a genuine issue of material fact about the official‘s state of mind because “[t]he statements in the affidavit, if true, indicate that [the social worker] may have been acting in bad faith.”45 Although we recognized the evidence supporting Smith‘s claim of bad faith was “scant” and his assertions “may be unsubstantiated by other evidence,” these assertions were sufficient to create a genuine issue of fact because they were “made in an affidavit of a ‘duly sworn’ witness, and they correspond to allegations made in [the complaint].”46 In short, Smith presented “some admissible evidence” that the social worker acted “maliciously, corruptly, or in bad faith,” and therefore, summary judgment was improper.47
Turning to the statutes at issue here, the primary goal behind
Here, Hill bears the burden as the non-moving party of establishing a genuine issue of material fact regarding whether Giani acted in bad faith.49 Hill met that burden.
At the outset, it is important to recall that as a mandatory reporter, Giani was required to report to the State whenever she had reasonable cause to believe Hill was physically or emotionally abusing J.H.50 The only report of harm in the record is the August 2005 Report; the reasonable inference in favor of Hill is that at no time prior to August 2005 did Giani have reasonable cause to believe Hill was physically or emotionally abusing J.H.—otherwise her failure to report would have been a violation of law and subject to misdemeanor charges.51
With respect to what Giani was doing, what she knew, and what she said about Hill prior to the August 2005 Report, the May 2005 Plan of Care is particularly relevant. The reasonable inference in favor of Hill is that Giani would be truthful in her Plan of Care that was to be submitted to the State, and that as a care coordinator Giani would make known any concerns she had about J.H.‘s placement with Hill and about any failure by Hill to follow through with the care plan. In this light, it is significant that Giani‘s Plan of Care does not include any allegations of abuse; on the contrary, the Plan speaks highly of J.H.‘s care at Hill‘s facility. This positive account is generally in tension with the negative portrayal of Hill in the Report of Harm submitted several months later. More important, the Plan of Care is apparently inconsistent with the allegations included in the Report of Harm on each of the following points.
First, the Report of Harm states that Hill yelled at J.H., called her stupid, and told her she didn‘t deserve to live in Hill‘s facility. The Report also states that J.H. “may be experiencing verbal and mental abuse [that] may have been occurring over a period of several years.” At her deposition, Giani stated that Hill had been making the “didn‘t deserve” comment “almost ever since I began working with [J.H.] in 1999.” Giani further stated that she had documented the yelling and “stupid” comments over a six-month period before the Report of Harm, and she had witnessed similar incidents over a period of at least a year before the Report of Harm. The Plan of Care, however, does not mention any such abuse, nor had Giani previously reported this allegedly longterm problem.
Second, Giani‘s Report of Harm suggests that Hill wrongfully deprived J.H. of certain “privileges,” such as participation in recreational activities. Yet the Plan of Care specifically sets out a behavior modification plan Hill was supposed to follow, calling for both positive reinforcement for good behavior and loss of privileges for bad behavior. Moreover, Hill testified at her deposition as to how the loss of privileges worked, and her
Third, Giani‘s Report refers to an incident in which J.H. became overly aggressive to an attendant; Hill sought to have J.H. admitted to API and then refused to allow her to return for 72 hours. Giani‘s Report links the incident to poor implementation of the Behavior Modification Plan. At her deposition, Giani stated that her concern over this incident was primarily the 72-hour issue—she asserted this was a licensing violation that had to be reported or she would face misdemeanor charges. Yet this same incident is described in the Plan of Care as evidence of J.H.‘s increased aggressive behavior. Further, if, as Giani asserted, she included this alleged licensing violation in the August 2005 Report of Harm because she was required to do so, it is unclear why she did not report the incident when she learned of it earlier that year. In sum, drawing reasonable inferences in favor of Hill from these apparent inconsistencies between Giani‘s Plan of Care and her Report of Harm, it could be concluded that Giani did not subjectively believe her statements in the Report of Harm.
In addition to these apparent inconsistencies between the Plan and the Report, Hill provided other evidence that, viewed in the light most favorable to Hill, further supports the conclusion that there are genuine issues of material fact regarding Giani‘s good faith. In the summary judgment proceedings, Hill submitted the affidavit of an 11-year employee familiar with J.H. who stated that she had never observed Hill abuse J.H. or “conduct[] herself inappropriately in any fashion as respects J.H.‘s care.” Moreover, Hill‘s employee specifically denied statements Giani had attributed to her in the Report of Harm and further denied other allegations by Giani. Hill also submitted letters from doctors and other individuals describing Hill in complimentary terms completely contrary to Giani‘s description; although hearsay, there did not appear to be an evidentiary objection by Giani. Hill also provided sworn discovery responses that dispute the Report of Harm‘s assessment of J.H.‘s allegedly defensive behaviors in the weeks preceding the Report, explaining that such behaviors were typical for J.H. and were not indicative of abuse.
Giani‘s Report of Harm is also inconsistent with Hill‘s deposition testimony that when Giani arrived to remove J.H., Giani and J.H.‘s father hugged and comforted Hill and told Hill that “they knew [Hill] had not abused [J.H.].” Taking Hill‘s evidence as true and drawing all reasonable inferences in favor of Hill, Hill‘s evidence further supports the conclusion that Giani did not subjectively believe her statements in the Report of Harm.
Finally, in Hill‘s deposition testimony she stated that Giani “repeatedly threatened” that she would “make things very ugly” for Hill if Hill did not give up any objections to J.H.‘s removal from Hill‘s facility. Taking this testimony as true for purposes of summary judgment, this may show a motive on Giani‘s part to override Hill‘s decision to continue with J.H.‘s placement and to quickly remove J.H. from Hill‘s facility; this is further supported by the fact that Giani submitted the Report and helped to conduct the hurried move of J.H. out of Hill‘s facility when Giani believed Hill was away on vacation. Giani may have believed she was acting in J.H.‘s best interests for placement when she made the Report, but knowingly making untrue statements in a Report of Harm is not protected by a good motive. At the summary judgment stage, to defeat a motion for summary judgment it is sufficient to present evidence raising a genuine issue of material fact that Giani knowingly made untrue statements in her Report of Harm.
Giani argues that “the DHSS investigation finding[] that Giani‘s reports were at least partially substantiated, in itself, demonstrates the good faith of Giani‘s actions.” In fact, the investigation concluded that the most serious allegation against Hill, abuse of a resident, was unsubstantiated. Moreover, when Hill requested a hearing to contest the sanctions issued by DHSS,52 the State withdrew its Notice of Administrative Sanction,
In summary, viewing the evidence in the light most favorable to Hill,53 there is admissible evidence that, if proven, could show Giani did not believe Hill had abused J.H. and filed the Report of Harm in bad faith. Hill‘s submission in opposing Giani‘s motion for summary judgment included deposition testimony, sworn discovery responses, an employee affidavit, numerous character reference letters (hearsay but not objected to by Giani in her reply), the May 2005 Plan of Care, and the August 2005 Report of Harm. As detailed above, this evidence created an issue of fact on whether Giani could honestly have believed the allegations in the Report of Harm. We therefore hold that it was error to grant summary judgment to Giani based on qualified immunity.54
D. The Attorney‘s Fees Award Is Vacated.
Giani cross-appeals the superior court‘s award of Rule 82 attorney‘s fees to Giani, arguing that the court erred in granting Rule 82 attorney‘s fees rather than attorney‘s fees under Rule 68. In light of the fact that we reverse the superior court‘s grant of summary judgment and remand for further proceedings, we vacate the award of attorney‘s fees to Giani.
V. CONCLUSION
We AFFIRM the superior court‘s grants of summary judgment to Collier and the State, REVERSE the superior court‘s grant of summary judgment to Giani, VACATE the court‘s award of attorney‘s fees to Giani, and REMAND for further proceedings.
CHRISTEN, Justice, not participating.
STOWERS, Justice, concurring, with whom CARPENETI, Chief Justice, joins only in paragraphs 1 through 3 of the concurrence.
I agree with the court‘s opinion. I write separately to respond to Justice Fabe‘s dissent. The dissent would hold that Giani is entitled to qualified immunity for having made a report of harm because many of Giani‘s allegations of harm were substantiated1 by DHSS‘s investigation of Hill. In the dissent‘s view, the “truth of much of Giani‘s report strongly rebuts a claim by Hill that the report was made without a good-faith belief in the truth of its contents.”2
The problem with the dissent‘s analysis is that the issue comes before the court on an appeal from a grant of summary judgment. Though the dissent‘s many factual arguments why Giani was not acting in bad faith when she made the report of harm seem persuasive in light of the comparatively weak evidence suggesting Giani may not have had a good faith basis for making the report, and these arguments may well carry the day when the case is tried to a jury, it is improper for a court on summary judgment to weigh the facts,3 make credibility determina-
I believe the court‘s opinion demonstrates why these various pieces of evidence suffice to create a genuine issue of fact, especially given our well-recognized standard that all inferences are required to be drawn in favor of the party opposing summary judgment and we are to view the evidence in a light most favorable to that party.6
But the dissent makes a good point that Giani finds herself in perhaps an impossible and unfair situation. She is a mandatory reporter, who is required by law to make reports of suspected harm being caused to vulnerable adults in the care of care providers,7 and who could be liable for failing to make such reports.8 The Alaska Legislature has made a policy decision that in the important interest of protecting vulnerable citizens, mandatory reporters should not be subject to liability for making reports of harm. But given the way the immunity statute is written, Giani does not enjoy complete immunity for making a report of harm; the statutory immunity granted is qualified by a good faith requirement.9 And as demonstrated by this case, the existence of good faith is a factual question,10 and if the subject of the report of harm is able to raise a genuine issue of material fact on the question of good faith, summary judgment in favor of the mandatory reporter will not be possible and a trial will be required.
The dissent persuasively argues that this court‘s opinion may create a Catch-22 by which a mandatory reporter like Giani could be liable both for reporting and for failing to report suspected harm; and that this court‘s decision undermines the legislative policy of encouraging people to report suspicions of abuse. While it certainly is not this court‘s intent to undermine the legislature‘s commendable policy, that may be exactly what this court‘s decision will do as a practical matter; if this is the outcome, it will be most unfortunate.
In light of this court‘s substantial jurisprudence on summary judgment, I doubt it will come as a surprise that we hold the qualified immunity statute will not provide immunity when the very thing that qualifies the immunity—good faith—becomes factually contested. It is the legislature‘s prerogative to make the policy decision whether immunity for mandatory reporters should be qualified or complete, and if the legislature believes that immunity should be complete, I am confident it will amend the statute to accomplish its purpose.
FABE, Justice, dissenting.
I disagree with the court‘s decision to reverse the superior court‘s grant of summary judgment in favor of Giani. In my view, Hill has not demonstrated a genuine issue of fact as to whether Giani was acting in bad faith or with an evil motive when she filed her report of harm. What makes this decision especially disturbing is the fact that many of the allegations in Giani‘s report were substantiated. Indeed, Hill was found to have: (1) placed J.H. on restriction for weeks at a time; (2) prevented her from leaving the home; (3) taken away J.H.‘s Christmas pres-
Summary judgment is appropriate where reasonable jurors could not disagree on the resolution of the issue.3 I believe that the evidence presented to the court could not lead a reasonable juror to conclude that Giani acted in bad faith. I therefore believe that Hill has failed to raise a genuine issue of material fact.
In order to recognize a factual question about Giani‘s good faith in the face of the corroborating DHSS investigation, the court is forced to conclude that the truth of Giani‘s claims is irrelevant to the question of her good faith.4 But we have never before held that a mandatory reporter‘s good faith was in doubt where the report was later found to be truthful. It seems implausible that Giani made her report without a good-faith belief in its contents, only to be vindicated by coincidence. The court‘s decision to expose Giani to liability, despite the fact that investigation of her report revealed real and troubling mistreatment, conflicts with the legislature‘s stated policy of encouraging reporters and protecting the vulnerable.
The court also points out that the DHSS investigation failed to substantiate Giani‘s allegation of physical abuse.5 But Giani merely passed along J.H.‘s own report that her care provider had hit her. Giani‘s report also documented J.H.‘s display of defensive behavior, which corroborated J.H.‘s report of being struck by her care giver. Although the DHSS investigation could not confirm that J.H. was actually being abused, there doesn‘t seem to be any dispute that J.H. claimed that her care giver was hitting her or that Giani was compelled to report it. Certainly a single erroneous allegation in Giani‘s report of harm cannot demonstrate bad faith where the bulk of her allegations were substantiated and where these other allegations would have compelled Giani to file a report of harm, with all the attendant consequences for Hill. I therefore believe that the results of the DHSS investigation substantially corroborating Giani‘s report of harm put to rest claims that Giani was not acting in good faith.
Despite the results of the DHSS investigation, the court concludes that Hill has presented sufficient evidence to put Giani‘s intentions in doubt.6 In determining that Giani may have acted in bad faith, the court relies on four pieces of evidence. In my view, none of them presents a genuine factual question as to whether J.H. was being mistreated or whether Giani believed such mistreatment was real when she made her report.
First, the court finds it significant that Giani failed to make allegations of mistreatment in her plan of care, which she filed three months before her report of harm, and points to several sections in the plan which are arguably inconsistent with Giani‘s later allegations.7 Despite the fact that the report
The court next points to affidavits, letters, and sworn discovery responses disputing Giani‘s allegations of mistreatment and describing Hill in complimentary terms.9 But if the statute is to offer any protection to mandatory reporters, the mere fact that Hill disputes the allegations made against her cannot be enough to defeat Giani‘s immunity. Even if this evidence is accepted as true and the results of the DHSS investigation discounted, this is not evidence that Giani acted in bad faith.
Third, the court relies on Hill‘s statement in her deposition that when J.H. was removed from her home, both J.H.‘s father and Giani attempted to comfort Hill: “[J.H.‘s father] hugged me, as did [Giani], together at the same time, and they both comforted me and told me that they knew I had not abused [J.H.].” (Emphasis added.)10 We must assume Giani made these statements. But it does not seem unusual that, in the emotionally fraught setting of J.H.‘s removal, Giani and J.H.‘s father would attempt to comfort Hill, who was obviously upset. If anything, Giani‘s actions in seeking to comfort Hill seem contrary to the idea that Giani was acting out of malice toward Hill. A jury could
not credibly infer from this statement that Giani made her report in bad faith.
In any case, Giani never alleged that Hill was physically abusing J.H. She only reported that J.H., herself, had made such an accusation and was displaying defensive behavior consistent with that report. Thus, Giani‘s statement that she did not believe that Hill had abused J.H. does not contradict her account of what J.H. told her, which she was compelled to report as a mandatory reporter. Moreover, Giani‘s lay opinion that these behaviors were insufficient to prove abuse has little bearing on her good-faith belief in the truth of the underlying facts.11
Finally, the court points to Hill‘s allegations in her deposition that Giani repeatedly threatened to make things “very ugly” for Hill if Hill did not allow J.H. to be removed from her facility.12 But these threats are alleged to have been made more than a week after Giani filed her report of harm. And the mere fact that Giani strongly desired to remove J.H. from Hill‘s facility after reporting mistreatment cannot reasonably be construed as evidence that Giani fabricated her report in bad faith.
All of this evidence taken together is distinguishable from the claim in Smith v. Stafford that a social worker staged phony pictures with beer cans and scattered garbage at the home of the parents in a child protection case.13 In that case, though the social worker may have harbored good-faith concerns about the well-being of Smith‘s child, we concluded that “[m]anufacturing a scene of excessive alcohol consumption . . . to falsely create evidence to imply that Smith has an alcohol problem or is an unfit father could be malicious and corrupt,” and that “[t]hreatening that Smith would never see his child in retaliation for complaining about those acts could likewise be evidence of malice.”14
I am particularly troubled by the court‘s opinion today because it threatens to undermine the public policy behind qualified immunity for reporters of abuse of the most vulnerable among us. The opinion correctly observes that “the purpose of
Ronald V. WEILBACHER, Appellant, v. Floyd RING, Sandra Ring, Wade Henry, and Jane Henry, Appellees.
No. S-14180.
Supreme Court of Alaska.
March 8, 2013.
As Modified on Denial of Rehearing Apr. 8, 2013.