David L. LORD et al. v. Marcia MURPHY et al.
Supreme Judicial Court of Maine.
July 12, 1989
1013
Argued March 20, 1989.
Finally, although we are troubled by the distinct impression that DHS‘s intervention has contributed to the breakdown in this family, we conclude that the issue before the District Court was whether, at the time of its final custody order, Irene W. was in jeopardy—not whether preliminary removal was appropriate.3 Although this seems a harsh approach from the perspective of the family from which the child has been removed, we see no legitimate alternative. Wherever the fault may lie, the question is what should happen now. The District Court showed commendable sensitivity to the situation it confronted by ordering reunification within three months of its order. It is tragic that the mother has been unable to overcome her daughter‘s false accusations and her resentment against DHS and participate in family therapy that would permit her and her daughter to be reunited.
The entry is:
Judgment affirmed.
All concurring.
Rebecca A. Irving (orally), Machias, for plaintiffs.
Steven J. Mogul (orally), Gross, Minsky, Mogul & Singal, Bangor, for defendants.
Thomas D. Warren, Deputy Atty. Gen., Augusta, amicus curiae.
Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.
GLASSMAN, Justice.
This action arose out of the alleged participation of the defendants in child protective proceedings and the placement of the minor plaintiffs in foster care after their removal from their mother‘s home because of threatened serious harm to them.1 By count 13 of their complaint the plaintiffs allege, inter alia, that the defendants, in their individual capacities as caseworkers for the DHS, violated various statutory and constitutional rights of the plaintiffs by initiating child protective proceedings while having knowledge that David Lord had legal custody of the minor plaintiffs by reason of a Kentucky decree; failing to notify David Lord of the various proceedings; and failing to protect the minor plaintiffs from harm and abuse in the foster home where the children were placed for one and one-half years and in their mother‘s home where the minor plaintiffs were replaced after alleged abuse in the foster home and where they remained exposed to jeopardy and abuse. The defendants by their answer asserted, inter alia, the defense of absolute immunity or, in the alternative, qualified immunity.
In a summary judgment motion made by the plaintiffs in 1986, the defendants argued that they were entitled to immunity under
I
We first must dispose of the plaintiffs’ motion to dismiss the appeal. The plaintiffs argue that the appeal must be dismissed because no final judgment has been entered pursuant to
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. Except as otherwise provided in Rule 80(d), when more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction any order or other form of decision, however designated, except those enumerated in the last sentence of Rule 80(d), which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
The trial court did not make a determination that “there is no just reason for delay” or an “express direction for the entry of judgment” and thus the summary judgment of one of the claims in a case involving multi-claims cannot be considered a final judgment under
This case, however, falls within the “collateral order” exception to the final judgment rule. Under this equitable doctrine, established by the United States Supreme Court, a decision is appealable even though portions of the case remain undecided “if it falls within ‘that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.‘” Mitchell v. Forsyth, 472 U.S. 511, 524-25, 105 S.Ct. 2806, 2814-15, 86 L.Ed.2d 411 (1985) (quoting Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949)).
The “collateral order” doctrine as applicable to an appeal from a denial of defendants’ motion for summary judgment on the ground of absolute immunity was recognized by the United States Supreme Court in Nixon v. Fitzgerald, 457 U.S. 731, 742-43, 102 S.Ct. 2690, 2697-98, 73 L.Ed.2d 349 (1982). In Mitchell, the Supreme Court held that qualified immunity, similar to absolute immunity, is an entitlement of “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (emphasis in the original). The Court held that denial of qualified immunity falls within the collateral order doctrine and there
II
The defendants argue that the trial court abused its discretion in relying on the doctrine of the law of the case as the basis for denying summary judgment to the defendants on Count 13. See Sprague v. Washburn, 447 A.2d 784, 786 (Me.1982) (standard of review is abuse of discretion).
The doctrine of law of the case applies only to questions of law. Blance v. Alley, 404 A.2d 587, 589 (Me.1979). We have stated:
The doctrine of the “law of the case” rests on the sound policy that in the interest of finality and intra-court comity a Superior Court justice should not, in subsequent proceedings involving the same case, overrule or reconsider the decision of another justice. Such a rule of practice promotes the orderly conduct of an action and discourages judge shopping. While based on important policy considerations, the law of the case is not as rigidly applied as the doctrine of res judicata. The rule does not serve as a complete bar to reconsideration of an issue when the prior ruling is provisional or lacks clarity, or the error is of such character that it should be corrected at trial.
Grant v. City of Saco, 436 A.2d 403, 405 (Me.1981) (citations omitted); see also Sprague v. Washburn, 447 A.2d at 787 (“[A]s a matter of practical judicial policy, a litigant may not, except for the most compelling reasons, reopen a question of law that another judge has already clearly decided in the same action.“). Professors Wright, Miller and Cooper state that “the major grounds that justify reconsideration involve an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 790 (1981).
At the 1986 hearing of the plaintiffs’ motion for summary judgment, the defendants, while not moving for summary judgment, argued, inter alia, that the court, pursuant to
Here, officials of the DHS were aware of the existence of the [Uniform Child Cus
tody Jurisdiction Act]; the [Child Family and Services Protection Act] and the [Parental Kidnapping Prevention Act] and allegedly acted in contravention to their directives by failing to give proper notice and failing to recognize the Kentucky custody decree. By failing to abide by the statutory requirements, Defendants are not immune from suit under the Civil Rights Act, 42 U.S.C. § 1983 .
The court erred as a matter of law. Neither of the Maine Acts nor the Parental Kidnapping Prevention Act (PKPA) provides grounds for a cause of action under
The entry is:
Order denying the defendants’ motion for summary judgment vacated.
Remanded to the Superior Court for further proceedings consistent with the opinion herein.
McKUSICK, C.J., and ROBERTS and COLLINS, JJ., concur.
CLIFFORD, Justice, with whom WATHEN, Justice, joins, concurring.
I agree with the court that the Superior Court‘s decision is appealable and that the Superior Court improperly relied on the doctrine of the law of the case in denying summary judgment. I would remand to the Superior Court, however, for the granting of summary judgment in favor of the defendants on all but one of the plaintiffs’ claims.
Defendants, as social workers, are protected by, at the very least, a qualified immunity. Myers v. Contra Costa County Dep‘t of Social Servs., 812 F.2d 1154, 1158 (9th Cir.1987), cert. denied, 484 U.S. 829, 108 S.Ct. 98, 98 L.Ed.2d 59 (1987); Malachowski v. City of Keene, 787 F.2d 704, 713 (1st Cir.1986), cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93 L.Ed.2d 56 (1986). Such qualified immunity protects them from suit under
After reviewing the record, I would conclude that all but one of the plaintiffs’ claims do not as a matter of law form a basis for the defendants’ liability under
On the present state of the record, the only issue that does not now merit a summary judgment in favor of the defendants is the plaintiffs’ claim that the defendants may be held liable under the due process clause for failing to protect the children from alleged abuse in the homes of their foster parents and mother after custody was awarded to the Department of Human Services. See DeShaney v. Winnebago County Dep‘t of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). That claim may provide the basis of a recovery only if plaintiffs prove that the defendants acted in bad faith and that bad faith led to abuse so substantial that it can be labeled a violation of a clearly established right under the United States Constitution “of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.