Lubcke v. Boise City/Ada County Housing Authority

CONCLUSION purchase parties’ agree-

We hold that the placed pre-closing

ment risk of loss on Holschers, and allowed the Jameses to agreement option

void the at their once the

premises materially damaged prior

closing. Accordingly/ we reverse the dis- judgment holding

trict court’s the Jameses

liable to the Holschers. We further hold third-par-

that the Holschers were intended

ty beneficiaries of the insurance binder be- Farm,

tween the Jameses and State

therefore the Holschers are entitled to

judgment against pro- Farm State for the

ceeds of that insurance. The Holschers are

also entitled to an award of reasonable

attorney against fees State Farm. We re-

mand case to the district court for judgment respect

modification of the proceedings State Farm and for further opinion.

consistent with this attorney appeal

Costs and fees on are against

awarded to the Holschers State

Farm.

McDEVITT, C.J., BISTLINE, TROUT, JJ„

JOHNSON and concur. P.2d LUBCKE, Plaintiff-Respondent,

Barbara

BOISE COUNTY HOUSING CITY/ADA

AUTHORITY, corporation, Judith

Worrell, individually in her official

capacity as Executive Director of the City/Ada County Housing

Boise Au-

thority, Defendants-Appellants.

No. 18691. Idaho,

Supreme Court of

Boise, Term. October 1992

Sept. 1993.

Rehearing Denied Oct.

Elam, Boise, Boyd, Burke & for defen- K. ar- dants-appellants. Bobbi Dominick gued. Scott, Jackson, Boise,

Lynn, Hackney & plaintiff-respondent. Lynn for ar- John C. gued.

BISTLINE, Justice.

Statement Facts respondent, Barbara Lubcke (“Lubcke”), Housing Au- was hired thority began employ- 1981. Lubcke Housing Authority ment with the as a sec- Eventual- retary to the executive director. position of ly, promoted Lubcke was housing representative where she responsible for the administration public housing program. Her low-rent taking applications for duties included lists, maintaining waiting deter- housing, mining applicant’s eligibility public for an updated pertinent fed- housing, keeping occupancy and regulations, monitoring eral tenants, continuing eligibility of and vari- these paperwork ous associated with position maintained her duties. Lubcke representative termi- housing until her nation ployment Department with the Idaho

During Lubcke’s tenure with the Hous- Authority personnel July In ing accept- there several Insurance. Lubcke changes position of executive di- position Physical Therapy, Boise ed a began working rector. When she per than where she earned more hour when Housing Authority, Ludwig Ernest was the working Housing Authority. Subsequently, Lubcke executive director. supervised by Af- Moisés Torrescano. Procedure Torrescano, the exec- ter Owen Krahn was 27,1989, filed an amend- On June During director. Krahn’s tenure as utive complaint against the Authori- ed director, frequent there was executive listing six causes of ty and Judith Worrell surrounding highly-publicized turmoil contract; One, action: Count breach Lubcke, Authority. along with Two, good breach of covenant of Count Housing Au- employees of the two other Three, dealing; faith fair Count defa- support thority, sign refused to a letter of Four, mation; proper- deprivation of Count Krahn, publicly for Mr. Lubcke became Five, depri- ty process; without due Count leadership. After critical of Mr. Krahn’s process; and liberty vation of without due left, ex- Worrell became the Krahn Judith Six, deprivation of freedom of Count ecutive director. in- complaint amended speech. 24, 1986, after some “coun- On October chairperson of Hudgins, the cluded Robert seling” sessions between defendant Wor- Housing Authority, as a board Lubcke, terminat- respondent and rell in Three. defendant Count Housing Au- position at the ed from her 27, 1989, all defendants September On received at least thority. At that time she complaint amended answered the second her termi- purported list of reasons for one includ- listing a of defenses which number Worrell, re- According to Lubcke nation. alleged acts were ed the assertion that listing the reasons ceived two letters law, under color of state performed terminated.

termination when she was performed alleged wrongful acts were not second she never saw the Lubcke claimed custom, policy or pursuant to an official in the mail. Worrell letter until it arrived qualified immunity. immunity, and absolute letter to she mailed the second claimed that forgot jury to take only because Lubcke On November Lubcke presented after she was fired and ousted. had it with her commenced. After Lubcke rested, defendants her case-in-chief and Worrell, Lubcke sub- meeting After for a directed ver- the district court moved charges, responses to the mitted written granted a directed dict. The district misconduct, specific requested instances the defa- Hudgins in as to verdict favor grievance hearing before requested and claim, defen- likewise to both mation and Au- of directors of the board of the cove- the claimed breach dants as to thority. dealing. After good and fair nant of faith 2, 1986, and Rob- On December presented, had been all of the evidence Berg, Henry Hudgins wrote a letter ert direct- for an additional moved defendants Inspector of HUD Regional General granted only as to the which was ed verdict Hudgins outlined Worrell and wherein claim. defamation conduct be Lubcke’s they believed to what claims for the court submitted three The regula- and of HUD statutes violation contract, lack deliberate: breach jury to information, tions, i.e., revealing restricted process, due and procedural of or failure tenants, and fail- property from acquiring speech. free waiting regarding regulations ure to follow tenants. Addi- qualifications of lists and a unanimous returned requested. investigation was tionally, a full claims. The all three on favor of Lubcke no action. HUD took $182,703.00 in dam- awarded Lubcke $57,703.00 representing ages, with by the Following her 1986 termination claim, $50,000.00 repre- of contract breach em- Housing Authority, Lubcke obtained senting the deprivation procedural judgment 11, 1990, April and the decision motions, process claim, $75,000.00representing post-trial on the deprivation speech of free claim. Analysis

The defendants then moved the court for judgment notwithstanding the verdict appellants primary raise two issues. (“judgment n.o.v.”), pursuant to I.R.C.P. First is whether the trial court erred in 50(b), trial, pursuant or a new to I.R.C.P. denying appellants’ judg- motion for a 59(a)(5), 59(a)(6), 59(a)(7), or, alterna- or, alternatively, ment n.o.v. for a new trial remittitur, tively, pursuant for a to I.R.C.P. on liability. the issue of Second is whether 59(a)(5). argument The court heard oral denying appellants’ the trial court erred in request fees, the defendants’ for costs and motion for a new trial on the issue of denied, all of which were and in addition to or, alternative, for a remit- which, the court requested awarded costs titur. Each of the two issues has several and fees to Lubcke. subsidiary issues. 11, 1990, April On the court entered an grant When the district court is moved to judgment amended to conform with its or- judgment n.o.v., the standard is “whether post-trial der on the motions which resulted upon there is substantial evidence being awarded an additional properly could find a verdict for $22,255.65 attorney $4,620.17 fees and Quick Crane, [nonmoving] party.” v. costs, thus increasing her total award to 759, 763, 111 Idaho 727 P.2d $209,578.82. Finch, In Dinneen v. 100 Idaho 1, 1990, May

On (1979), defendants filed their 603 P.2d 575 which was ad- appeal pursuant notices of Appel- Quick to Idaho upon Crane, hered to and relied 11(a)(1), 11(a)(5), 11(a)(6), late Rules (1986), 727 P.2d 1187 Chief appealing from the December Justice Donaldson1 and Justice Bakes2 Finch, 1. Chief Justice Donaldson supra, provides controlling legal wrote: ruling upon In prem- a motion a principles regarding for new trial the role of trial courts in upon inadequate damages, ised or excessive 59(a)(5) ruling on motions under and the role rule the trial court must follow is set forth in reviewing grant of this Court in or denial Finch, 620, Dinneen v. 100 Idaho P.2d 575 out, opinion points of such motions. As his (1979): holding legally in Dinneen is sound and premised ‘Where a motion for a new trial is applied consistently has been followed and inadequate damages, on or excessive the trial Court, just year. Vannoy this twice in the last weigh court must the evidence and then com 536, Uniroyal, v. (1986); 111 Idaho 726 P.2d 648 pare jury’s award to what he would have 277, Reynolds, Black v. 109 Idaho given jury. disparity had there been no If the (1985). Today’s opinion clearly P.2d 388 great appears is so to the trial court points post- out the distinction between the given that the award was under the influence n.o.v., judgment verdict motions passion new trial prejudice, ought of stand. in or the verdict 59(a)(6), 59(a)(5), proven It need under and new trial not be that there under passion prejudice necessary fact or nor preeminent is it and it reaffirms the role of the point appear to such in the record. The deciding standards set forth in Dinneen in ance of such is sufficient. A trial court is not 59(a)(5). new trial motions under Rule ruling inadequate restricted to a verdict excessive "as a matter of law.” Blaine v. [Tjhe opinion today change Court’s does not 665, Byers, supra. Idaho [91 429 P.2d 397 the Dinneen standard that 'the trial court (1967) Additionally, the rule that a ]. weigh compare must the evidence and then supported by will not be set aside when sub given award to what he would have conflicting appli stantial but evidence has no jury. disparity had there been no If the sois ruling upon cation to trial court a motion for great appears that it to the trial court that the Blaine, supra; Rosenberg a new trial. v. Toet given pas- award was under the influence of 135, ley, (1969). Idaho 456 P.2d 779 prejudice, ought sion or the verdict not stand. Crane, Quick v. 111 Idaho at 727 P.2d at proven It need not be that there was in fact (emphasis Dinneen, original) (citing in 625-26, passion prejudice necessary 580-81). nor is it Idaho at 603 P.2d at point appearance to such in the record. The 2. Justice Bakes wrote: Finch, of such is sufficient.’ Dinneen v. 59(a)(5) Motions New Trial under 625-26, Idaho at 603 P.2d at 580-81. I endorse Chief Justice Donaldson’s asser- today tion that our decision in v. Dinneen scope Therein our of review both wrote. A. THE TRIAL DID ERR COURT NOT for this issue well stated: BY REFUSING A TO GRANT JUDG- MENT N.O.V. OR A TRIAL NEW ON determining judgment In a ... whether LIABILITY. ap- granted, should have n.o.v. been disposi- We state each contention and our applies standard pellate court the same thereof: tion passed does the trial which originally. motion 1. There sufficient evidence to Quick, 111 Idaho at 727 P.2d at 1192. Authority Housing show that employment contract. breached task, then, reviewing in this issue is Our Housing Authority’s per Under trial court to “review the record of the manual, entitled to con sonnel Lubcke was from the below and draw all inferences employment tinued unless she was termi light in a most favorable [re “unsatisfactory nated for service” or for a spondent] to if there sub determine regulation. violation” of a “substantial submitting justify stantial evidence Housing argues it artic Authority Quick, jury.” to the 111 Idaho at case “many legitimate reasons for termi ulated words, this 727 P.2d at 1192. In other nation, consisting constituting of conduct must ask tends to Court “what evidence unsatisfactory performance or a substan respondents, support with all reasonable regulations[,]” of HUD at trial tial violation inferences and intendments to be drawn were not Lubcke. which rebutted respondents....” Conley favor of replication a thor which constituted Co., Sugar Amalgamated refutation, clearly out-argued ough P.2d trial Authority, or so the Quick Likewise, the Court held judge opinion found well-written approves places this Court before reviewing the of a motion for denial [i]n public: litigants and trial our a new standard review] [of case, brought In this forth evidence settled. This has been consis- well Court showing positive that she had received im- recognizing trial court’s tent evaluations, train- employment additional portant passing function in on motions ing substantial cost [at upholding the trial for new Authority], was her work and devoted to grant or motions court’s denial of such performed job and her the tenants had manifestly unless the court has abused At least satisfactory duties in a fashion. The discretion vested in it.... the wide the former members felt one of board position in a trial court is far better good a plaintiff would have been demeanor, weigh credibility, interim director. Ap- of all the evidence. persuasiveness necessarily more limit- pellate review evidence, While we review the

ed. must is no there direct evidence While “weigh” it as position not in a speaking we are plaintiff was sanctioned for out, rarely is, the trial can. there as several courts Painter, E.g., Nekolny noted. v. have Quick, P.2d at 1198 Idaho at (7th Cir.1981); Missouri F.2d 1164 omitted). (emphasis original, in citations Newv. National Education Association District, 810 County R-1 Notwithstanding stan- Madrid School our deferential (8th Cir.1987). criti review, her Authority and F.2d 164 Since Housing of dard at known of Krahn was well reasons cism Owen Worrell assert there are several only remarka Authority, and it is the should why judgment a n.o.v. or a new trial the Au- in her work life with granted. event been ble Crane, 785-86, P.2d at 580-81. Quick P.2d at Idaho at 625-26, 1213-14, Dinneen, citing reasonably inferred 2. There thority, it could was sufficient evidence to be Housing Authority that she as a result of exercis- show that was fired acting ing rights. color of her First Amendment The under state law already purposes plaintiff survived other of 1983 claim. had § only in- changes of administration. The part, U.S.C. reads: § expression her tervening event was of who, Every person any under color of Mayor and an Ada criticism to the Coun- statute, ordinance, regulation, custom or ty and members of the Commissioner usage, any Territory, or the State or Authority’s Board the letter to the Columbia, subjects, District of or causes editor_ The found that she en- subjected, any to be citizen of the United speech gaged protected in and lost her person any States or other within the fairly It cannot job because of it. be said jurisdiction deprivation thereof to basis for their that there was no conclu- any rights, privileges, or immunities se- miscarriage sion nor that it constitutes laws, by cured the Constitution and shall justice. injured party liable to the an action substantial, conflicting There is albeit at law.... evidence, support jury’s verdict. Thus, prima in order to make a facie case The are not entitled defendants to a required under Lubcke was § judgment n.o.v. standards for a respondents acting show that the un permit analysis. new trial more flexible der Housing color of state Au law. Considering the evidence this case and thority asserts that Lubcke did not meet appears while testimony given, argues her burden. It that when state responsive me that the was not officials take an mandated feder action provided by to the direction new su- regulations, they al under the act color of pervisor judg- some errors in made federal, state, not and are therefore law ment, honestly say I cannot subject liability under 1983. See § determination the breach of Block, (11th Rosas v. 826 F.2d 1004 Cir. miscarriage justice.... contract was a 1987). According Authori certainly jury’s] It to me that seems [the ty, the actions terminate taken to verdict is one of reasonable conclusions were upon based federal law that the which been could have drawn from the personnel (under provisions manual evidence. I did While evaluate the evi- fired) allegedly ap Lubcke was differently, dence somewhat the verdict proved HUD; moreover, she was fired miscarriage justice. was not a There part alleged regula violation of HUD are no grounds sufficient for a new trial. tions. R. 293-96. We need not further address this conten- court, agree

We with the district and on tion because to the extent record, generally Authority our review of the which is termination defended the al- in light plaintiff, leging regulations, the most HUD favorable Lubcke violated allegations jury we conclude that there was sufficient sub- the found those were not support jury stantial evidence to the court’s the true cause the dismissal. The sub- for and, turn, mitting jury special clearly in the case to the a found that support jury’s the for her aspects all of verdict. It Lubcke was terminated exercise of rights. simply her First We have al- is clear that the did not believe Amendment “many legitimate alleged ready that the reasons” determined is sufficient evi- there support by Housing Authority truthfully dence in the record to the Accordingly, Housing Authority’s summary the basis of determination. there was suf- to find that the discharge Accordingly, of we con- ficient evidence for the Lubcke. Housing acting Authority clude under color that the district court did not err denying judg- of state law and the district court did not defendants’ motion for Quick Crane, denying appellants’ err in motion for ment n.o.v. or new trial. v. judgment trial n.o.v. or a new on this basis. Idaho at P.2d at 1191. 18(B), Jury op- instruction which ad- tom which 3. # constitutes the “standard policy procedure” erating govern- or cus- local dressed official of the proce- requirement entity. tom as to mental against dural claim 737,109 (emphasis 491 U.S. at at 2723 S.Ct. Housing adequately Authority, in- original). applicable formed the of the Housing Authority argues that law. 18(B). # giving the court erred instruction governmental entity A local is not provides That instruction there has been a liable under unless § Regardless of whether Judith Worrell in- rights by the execution violation of caused dividually is liable Plaintiff for dis- custom, government’s wheth policy of a or charging hearing, Plaintiff a without policy is made the lawmakers or er that itself, Housing Authority, is liable to fairly may whose edicts or acts be those give meaning- if the a Plaintiff failure to represent policy. v. official Monell said hearing arose ful out of official action. Servs., 436 U.S. Department Social Therefore, you if find that the Plaintiff (1978). 2018, 56 Mo L.Ed.2d 611 S.Ct. deprivation suffered unconstitutional City was later clarified in Pembaur nell the result of actions of official Cincinnati, 469, 106 S.Ct. U.S. Authority, then Board of (1986). There, the Court 89 L.Ed.2d Authority is liable to policy liability official could be held that for her as defined these in- single by municipal imposed for a decision structions. makers under certain circumstances. policy may noted that an act be tailored It also Authority argues the court should be in particular situation and need not a defined the term “official action” and apply to situations and still tended to other give by refusing district court erred policy purposes for official § Housing Authority’s proposed instruc- by an policy may be established Official Proposed tion #31. instruction stated establishing “responsible who is official Authority could be found liable governmental policy respecting such final deprived if of her consti- only Lubcke however, Liability, “attaches activity.” deprivation and “such tutional only deliberate where—a where—and custom, to a pursuant governmental done is made to follow a course of action choice ordinance, regulation.” policy, re among a from various alternatives” First, 18(B) find to be we instruction official. 475 U.S. sponsible law so far as the correct statement at 1300. S.Ct. goes. of official As the definition action case, Supreme recent In a more explained: district court the “identification noted Court giving plaintiff’s instruc- My reason represent officials whose decisions those tion, is court’s instruction now policy governmental official the local 18B, from appears that it to me is question resolved legal to be unit is itself being case al- that what facts is submit- judge the case by the before imput- leged not a of vicarious case Indep. jury.” Dallas by the Jett v. ted liability policy, but in- arising ed from Dist., 701, 736, 109 S.Ct. 491 U.S. School actions, from the Board’s stead arises 105 L.Ed.2d 598 violating directly alleged it is to be power those officials who have Once hearing. right plaintiff’s the to particular on a policy make official to case is not a identified, [Ijt’s my view that this for the ... been it is issue have respect imputed to case with decisions vicarious to determine whether their jury at the Housing Authority’s actions rights of the deprivations caused the have direct liabili- is a where hearing, but ease policies com- by which affirmative issue against ac- the board ty is asserted by acquies- it that occur ... or mand employ- scope of their taken or cus- tions longstanding practice in a cence which the allegedly necessarily ment but violated also found that the Board’s vio- right speech to also rights. lation of her free was plaintiffs constitutional the the result of Board’s official action. agree 8 at 1190. the dis- Tr.Vol. We Accordingly, Housing Authority the did trict court that there was no that prejudice any suffer from the district custom, acting was according the Board properly jury court’s failure instruct the ordinance, policy, regulation. established predicate as action the to the official of Thus, the defense references thereto in claim. First Amendment surplus- proposed instruction 31 are mere age. theory Lubcke’s of the case was that 4. There was sufficient evidence to surrounding the events her termination that Lubcke’s show unconstitution- case, but particularly were tailored to her the al termination was the result of making the because Board was involved policy Housing Au- official her those deliberate choices which violated thority. rights, constitutional those decisions be- Housing Authority argues The that policy the official came which established alleged Lubcke did not establish that the municipal liability pursuant Pembaur. her violations of constitutional were Where the district court that found proximately per to an policy related official policy was the official for the Board maker However, presented Monell. Lubcke evi Housing Authority, necessarily follows Worrell, director, dence that the executive any that official action the Board taken chairperson Hudgins, of the Board policy pursuant would be official to Monell Directors, of drafted the two let dismissal 18(B) and Pembaur. # ade- Instruction ters. The jury'could have concluded quately jury instructed it must Board, through Hudgins, find the actions of the Directors Board of together were acting to mislead Lubcke were “official “unconsti- both actions” and termination, about the reason for her true actions in- adequately tutional” and thus jury determined to be her exer jury formed the elements Monell rights. cise of First her Amendment Hud- liability under the facts case. of this gins prepared response also Worrell’s Authority argues also The grievance. jury Lubcke’s The have could have official should made it clear that seen as further evidence this of a concerted requirement liability is a action on the effort the Board between and Worrell speech agree free claim. conclude We but deprive of her rights. Lubcke constitutional jury the failure to so instruct Further, Hudgins (Ex co-authored a letter special harmless error. The shows 12) Inspector hibit General of jury unanimously that Department Housing found and Urban Devel terminated opment, which contained what Authority because her exercise could concluded spurious Amendment also rights. First against Lubcke, charges false done as unanimously found that the Au attempted cover-up of illegal termi deprived thority procedural Lubcke of her nation. We conclude that a rational trier hearing. process right Implic due to a fair Board, of fact conclude act could that the jury’s finding it in the was offi there ing through chairperson, its Robert Hud- deprivation action, cial action behind the of due gins, along took official with Wor- rell, process finding is the deprive position that there was offi Lubcke of her be cause First cial action behind the violation of of her Amendment activities Board’s process, and to her of will deprive as rights. First Amendment This is Lubcke’s Board, i.e., explained more detail below. so because same act Lubcke, ratifying Worrell's termination of 5. Lubcke demonstrated that she serves the factual basis for both procedural due terminated without claims. process First Amendment and due process. words, found that other because Supreme viola Lubcke’s termination for due Court Cleveland Loudermill, U.S. policy it tions was the result of official Board Educ. (1985), The 105 S.Ct. L.Ed.2d 494 above evidence was sufficient to public employees deprivation procedural have a show a pro- that when due held employ- protected property interest their cess. that,

ment, requires process the due clause Second, Housing Authority the ar termination, employees giv- prior to the be gues procedural that waived her Lubcke a) rea- oral or written notice of the en: protections when told the Board she at the termination, b) son^) explana- for the an post-termination hearing did that she not evidence, c) an employer’s of the tion job back. While it is true want her that the opportunity present to their side of first Lubcke at told the Board she did not story. job want her back “under this administra argues it is Housing Authority that tion[,]” The next day she wrote the Board the judgment to n.o.v. happy entitled a because and told them she would be to be prove did a Loudermill viola- Lubcke not reinstated. First, it that respects. tion in two contends evidence, In light of this the district appropriate the provided it Lubcke with correctly any instructed the had procedures when Lubcke and Worrell right may pro- constitutional be waived and meeting ex- an whereat Worrell informal vided a correct The definition waiver. discharge and plained the reasons for the instructed, jury, found did not thus Lubcke respond. to opportunity had an Lubcke process. to right procedural waive her due had a Authority also notes Lubcke The We conclude that sufficient substantial evi- hearing post-termination

formal before dence sustains the determination of Board of Directors. no waiver. however, jury, found that Lubcke 6. The court’s instructions on re- given not terminated for the reasons quirements procedural pro- due Rather, Housing Authority. correctly law. cess stated the for her First Amendment was terminated Thus, Lubcke has been activities. never argues Housing Authority termination the true reason for her told giving instruction the district court erred and, therefore, have appellants did not provided: # 17 which respond meaningfully to opportunity to In of her connection with the termination meeting with that reason—either at plaintiff entitled to employment, the meeting at the Board. Worrell or before hearing a director before executive Housing Authority and the Board. It Additionally, presented implied hearing that it right in her be pre-termination a meet- that she never had meaningful hearing. was entitled She did meeting with Worrell ing because hearing comported to a which with fair fired. until after she had been not occur process. process due Due flexible given list of that time she was a written At upon circum- concept depends But, accord- for her termination. reasons minimum, At a stances of case. Lubcke, another ing to she later received entitled notice for her termination which list of reasons oppor- a fair grounds of termination and first different from the reasons were tunity refute them. Obviously, Lubcke did list. Housing Authority contends of R. 250. The respond the second set opportunity to was flawed because meeting with that instruction purported at her reasons due presented evi- stated that the Loudermill Additionally, she Worrell. require- meaning- requirements “minimum” not afforded a dence that she was stating compliance ments without respond the second opportunity ful satisfy requirements would Authority re- the minimum hearing because words, process. other specific her with informa- provide fused argues the instruction could Authority nature and circumstances tion as require- say the “minimum” read to alleged misconduct. enough might provide Appellant’s reply quoting not be to due at 21 merits brief Re- spondent’s brief at 25. process, depending on the “circumstances believe, however, of the case.” We parties agreeing With both that the issue reading more of word “mini- natural Court, is not before the we decline to ad- possi- mum” in this context is: “the lowest dress it. degree allowable....” ble amount II, p. Dictionary, New Riverside Webster’s by giving 8. The erred instruc- (1988). especially 19, This is so when one jury tion # which allowed the to conjunction # reads instruction with damages whether to award consider reputation. # 14. Instruction # 17 tells the instruction for loss of following prove Lubcke must that # part: 19 stated in Instruction procedural prevail in order to on her due you If find that suffered mental process claim: distress, reputation or emotional loss of permanently First: That she was em- by damage or other caused the denial of by ployed government the defendant en- opportunity charges an contest the tity; against her, you may then such award naturally flow discharged which from the Second: That was from defendant’s actions.... employment; hearing, given That she was not Housing argues Third: Authority that the nor informed of reasons instructing dis- so district court erred opportunity charge, given jury. argues nor to con- It be entitled to “[t]o reasons; any reputation damages test stated loss of connection deprivation property with [Lubcke’s Fourth: That as a result of this dis- process] had without due claim she charge, damages. she suffered pretermination prove that the denial of a R. 248. hearing actually injury repu caused Thus the instructions read aas whole damaged tation and that she was as a that, correctly informed the if Lubcke Support Brief in result.” Petition for grounds given notice for termi- so, (In Rehearing doing it concedes opportunity nation and a fair to refute reputational damages may be awarded then, them was not violated deprivation in property-interest claims as Authority. There was no er- See, e.g., some courts have held. Busche v. regard. ror in this Burkee, (7th Cir.1981), 649 F.2d 509 cert. denied 454 U.S. 102 S.Ct. 7. We decline to reach issue of then, (1981).) In L.Ed.2d 212 essence presented whether Lubcke evidence Authority argues that suffi there not deprived which showed that she was on cient evidence submit the instruction liberty process. without due reputational damages. though Even Authority ar- it is clear that “no instruction While gues present any given that Lubcke did not evi- should be which tenders an issue that deprived pleadings dence supported by to show she was is not and such evidence, liberty process, without due both Hous- deviates therefrom ing Authority appear agree any respect,” Nordquist material v. W.A. Co., directly this issue 28 P.2d before Simons (1933), [Housing Authority] equally Court. “The it is clear that and 209 “[t]he agree duty no with Lubcke that refer- trial court under instruct every theory recognized ence instruc- was made the trial court’s reasonable special supported tions or the law that is at trial.” Everton form Blair, occupational Idaho P.2d liberty-interest deprivation recently stated that a practical purposes, claim and that ‘for all We liberty requested given instruction must be if interest dismissed [claim] ” any evi- defamation there is reasonable view causes of action.’ Thomasson, support it. was sufficient sustain jury’s dence to State conclu- P.2d 746 sion that she fired in was retaliation for her comments about Krahn. evidence, reviewing the particularly, After we find More Worrell’s claim that showed that Worrell made dis- unaware of that Lubcke was Lubcke’s criticism of 2Q ten- paraging remarks about Lubcke to the Krahn is refuted 2P. exhibits Housing Authority. However, copies Those exhibits are ants of Worrell’s notes meetings 2Q, disparaging the fact that these comments from with Lubcke. In exhibit 12, 1986, September not that state- were made does show dated Worrell wrote damaged reputa- her that actually ments Lubcke’s Lubcke told a co-worker was trying It could the tenants who to discredit Lubcke of “the tion. because did Krahn heard Worrell’s statements not believe Owen hassle.” Worrell wrote 2Q, September them or them held Lubcke in exhibit dated believed but high esteem as feared disliked her “due to before statements Lubcke Worrell present any Krahn’ made. Lubcke did not the ‘Owen situation.” Those notes were actually fully reputation that her show that Worrell was evidence was aware remarks, damaged Worrell’s conse- Lubcke’s criticisms of Krahn well before Moreover, we that the trial court Worrell fired Lubcke. there quently, conclude instructing the jury reputation- erred in on was circumstantial evidence which showed Nordquist, Hudgins 28 that knew damages. al 54 Idaho at Worrell about And, impossible to First at 209. as it is Lubcke’s Amendment activities. P.2d Krahn, director, determine awarded dam- Owen the fired executive whether Fur- ages reputation, loss we the was aware of Lubcke’s statements. for vacate ther, fire if and remand for a new trial on Krahn threatened to Lubcke award support Although him. damages. Because instruction Lubcke failed to amount process Krahn not terminate before his 19 is limited to the due cause of did Lubcke termination, hire not own Krahn did Worrell. action and thus the instruction could damage After Krahn was terminated and adversely affected Worrell action, director, Krahn met the was made executive amounts the other causes Hudgins Lubcke of mis- new is limited to the due and accused There evidence that conduct. was also claim. closely to- Hudgins and worked Worrell right 9. Lubcke that her showed ter- gether relating on matters to Lubcke’s speech infringed. was free mination, drafting of the two including the as well as the letter to dismissal letter’s ter claimed that she Lubcke deduced from HUD. The could have Krahn, criticizing Wor minated for Owen Krahn Lubcke this evidence that wanted mayor of Boise predecessor, rell's his fired of her criticism of admin- because County Commissioners. and to Ada Hudgins and istration and then enlisted members and Worrell testified Board plan. into that Worrell state they were unaware of these Au Consequently, ments. sum, and circumstan- there was direct not thority argues, prove Lubcke did Hud- which showed that both tial evidence to the proximately related statements were gins Worrell were aware Lubcke’s termination. agree We First Amendment activities. suffi- trial court that there was with the authority no Authority cites support the in the record to cient evidence di- proposition that there must be finding. policy its makers rect evidence that aware of the statements order not have 10. The district court should prevail. contrary, the To the question of whether submitted law makes no instructed that the qualified entitled to direct or circumstantial distinction between jury. immunity degree proof required. evidence as perform Government officials noted, we believe the cir- As before are generally functions ing discretionary presented by Lubcke cumstantial liability shielded from for civil district court did explicitly address the insofar as their conduct does not violate question. clearly statutory established or constitu- reaching Before arguments tional of which a person reasonable on appeal, we note that the proper issue is would have known. Fitzgerald, Harlow v. ly First, before us. object failure to 800, 818, 457 U.S. 102 S.Ct. 73 jury preclude instruction does not chal (1982); State, L.Ed.2d 396 Arnzen v. 123 lenging that instruction appeal. on Coun 899, 904, 242, Idaho 854 (1993). P.2d 247 try Agricultural Dev., Inc., Ins. v.Co. 107 However, officials charged are with the 961, 963-64, 346, Idaho 695 P.2d 348-49

knowledge of the develop- constitutional (1984). Second, though even ments at district alleged the time of the constitu- explicitly court did not violations, address including quali tional all available case immunity fied Jensen, 1385, law. issue in responding Lum v. F.2d Wor (9th Cir.1989). In rell’s motions right post-trial order for a to dismiss and to be mo established,” “clearly tions, implicit the “contours of the it is rulings court’s right must sufficiently clear rejected rea- properly Worrell’s raised sonable official would understand that immunity claims. Thus the issue has been doing what he is right.” violates that preserved appeal. Compare, State v. Creighton, Anderson v. 483 U.S. 639- Fisher, (1993) 849 P.2d 942 3034, 3038-39, 107 S.Ct. 97 L.Ed.2d 523 (an issue not ruled on below will not be (1987). appeal considered on if the issue was never properly presented to the trial court for a Worrell qualified first raised the immuni- ruling). ty issue in her motion for summary judg- However, court, ment. the district in its argues appeal on decision, memorandum did not reach the question qualified immunity should qualified immunity issue due to its dismiss- not have been submitted to the be al of the 42 U.S.C. 1983 counts because § question cause it is a of law for the court pleadings did “not meet specific to decide. Worrell also claims instruction requirements 9(b)3.” R. 97. The dis- 18A is an erroneous statement of the law trict permitted court Lubcke to file a sec- that it includes the good element of faith. ond complaint. amended When Lubcke did question clearly of whether established so, realleged she against 1983 causes § law existed at the alleged time of the con qualified Worrell claims the immuni- question stitutional violation is a of law. ty defense. R. 103-09. Worrell did not — U.S.—,—, Bryant, Hunter v. move the court for summary judgment 534, 537, S.Ct. 116 L.Ed.2d 589 As against the second complaint. amended such, court, it is for the jury, not the The issue presented was not to the court Thus, decide. if there is not a material again decision until Worrell’s motion to regarding issue of fact happened, what dismiss the end of Lubcke’s case. The qualified immunity court makes the deci district in denying the motion to dis- sion. This could summary judg occur at a miss did not explicitly qualified rule on the motion, Thomas, ment immunity Elliott v. 937 F.2d Curiously, issue. though even (7th Cir.1991), Worrell had or at consistently argued a motion for a that she Bennett, directed qualified was entitled to verdict. Krause immunity doctrine law, (2d Cir.1989). as a matter of F.2d object she did not If the court to the giving 18A, qualified instruction decides the defendant which submitted has immu question nity, prevails of whether the defendant on the § immunity applied under the action. If the facts of the court decides in favor of the However, case. again plaintiff, argued question that she of whether a consti was entitled to immunity as a matter of tutional violation occurred would still be post-trial law in her Again, jury. motions. recognize, decided We howev- 9(b) Idaho Rule of Civil requires particu- Procedure constitutional larity.” shall be stated with that "all averments of ... violations of civil or fact) and thus furthers our state constitu- cases where the trial er, will be that there right mandate to hold the to a tional are material is- find that there court will Const, 1, 7. “inviolate.” Idaho art. pre- and that dispute § such of fact sues quali- ruling from on the the court cludes adopt today note the rule we is con- We immunity question (e.g., cases where fied holding in First sistent with our Idaho rights were clearly constitutional Foods, settled Valley 121 Ida- Nat. Bank v. Bliss testimony is be- plaintiffs (1991),that, if violated 824 P.2d ho not if the defendant’s testi- lieved but were equitable the court’s when matters within believed). appellate courts are tried, mony is being find- jurisdiction are that situation. how to deal with advisory only and that the ings divided fact are Appeals holds Circuit Court to find “the facts required The Seventh trial court makes the determi- still its conclu- separately that the trial court and state specially immunity. (quoting qualified Simkunas thereon.” Id. nation of law sions Cir.1991); 1287, (7th files a com- Tardi, 52(a)). plaintiff F.2d 1291 A who 930 I.R.C.P. v. 985, 1983, F.2d 994 42 U.S.C. Chicago, 856 for under City plaint v. § Jones mortgage fore- Cir.1988). have submit- (7th courts unlike the Other jury Valley, in is entitled immunity issue action Bliss qualified ted the closure legal, not instruct the cause is interrogatories jury a trial because special with sounding in immunity issue in nature. In cases equitable, resolve the jury how to law, right to have the parties it finds. Bran- have the what facts depending on Const, 211, (6th Cureton, jury. 216 a Idaho 882 F.2d facts determined v. denburg alternative, v. 1, 7; and Assocs. Cir.1989). adopt third David Steed We a art. § 717, 247, 250, 766 P.2d The court Idaho Young, Circuit. 115 used the Second one equi- (1988). as to had asked for interrogatories If Lubcke special 720 should submit damages, a different jury and then instead of dispute to the relief the factual table However, she immunity might decision based be obtained.4 qualified its result make therefore, we interrogatories. damages; only asked for answers to has upon the issue of whether not reach the need rule, believe, is for we The better as to the facts jury determines court or qualified the issue to decide 42 under U.S.C. causes of action equitable law, preferably immunity as a matter of time, our hold- we limit At the same 1983. judg- summary pretrial motion for on a relief is the monetary ing to cases where for on a motion possible, or ment when remedy sought. only are unresolved verdict. If there directed early prevent an issues which factual authority, Thus, we light of the above in defense, jury disposition of court erred the district conclude special in- issues on decide these should legal compo- jury to decide the allowing the legal issue The ultimate terrogatories. Fortu- immunity test. qualified nent found, whether, a reasonable on the facts wisely however, the district court nately, he acted have known should interrogatories [official] special submitted of law better unlawfully question is a special inter- to those answers jury. The decide. the court to left for jury that the believed show rogatories of Lubcke’s 70, (2d fired Lubcke because Worrell F.2d 76 Dwyer, 906 v. Warren rights. First Amendment of her exercise Cir.1990); Weinburger, McIntosh v. see quali- Harlow, entitled to is Cir.1987). Worrell 1431, (8th In Under 1411, n. 8 810 F.2d violate if she did not immunity only fied respec- view, protects the this rule best our law. constitutional clearly established (to rule on matters the court tive duties of from suit Thus, immune should be (to law) determine issues and the in its findings trial court will bind the Amend- court there is no Seventh In federal Bea- action. equitable cause of decision on equitable right actions. to a ment 500, Westover, 510- 733, 359 U.S. 531, 533, v. Bernhard, Theatres Inc. con S.Ct. U.S. Ross (1959); 948, 957, L.Ed.2d 988 (1970). 79 S.Ct. where In cases L.Ed.2d Wood, 369 U.S. Dairy Queen Inc. v. legal equitable joined, the legal are issues 894, 897, L.Ed.2d S.Ct. jury, and the relevant claim is tried first a) clearly Supreme if: it was not established law Court also held that the teacher’s employee may public freely expressing 1986 that a not be interest in his views on terminated exercise of her First public for her matters of concern must be balanced b) rights, and Amendment was not clear- against employer’s interest in effective ly employee established in 1986 that an public efficient service. 391 U.S. at property job in her could interest Specifically 88 S.Ct. at 1734. being be terminated without informed of Court noted that dismissal the exercise the true reasons the termination rights might per- of First Amendment be being opportunity given without to ad- missible in cases the need for where confi- charges. dress those dentiality great cases where the relationship “superior between the and sub- question of whether Worrell is personal ordinate is of such a and intimate immunity qualified entitled to as to the public nature that certain forms criti- procedural easily claim process re cism seriously would undermine the effec- clearly solved because it settled law as working relationship tiveness of the be- public employees of 1985 that when have a tween them.” at n 391 U.S. 88 S.Ct. protected property employ interest in their n 3. ment, that, requires the due clause termination, prior employees giv case forth four Pickering set factors a) en: oral or written notice of the rea to determining consider when whether a son^) termination, b) explana for the an employee’s termination because an evidence, c) tion of the employer’s and speech has violated the First Amendment: opportunity present to their side of the a) the effect plaintiff’s of the conduct on story. Board Cleveland v. Loud of Educ. discipline harmony the and among co-work ermill, 542, 470 U.S. at 105 S.Ct. at 1493. ers, b) c) confidentiality, the need for light finding In of the that Lubcke impeded whether employee the conduct the was never told the true reason for her duties, in competently performing daily termination, we hold that Worrell violated d) and encourage the need to a close and clearly settled and is not law entitled to personal involving relationship loyalty and qualified immunity procedural to the due employee confidence between the and her process claim. superiors. Holmes, 928, v. 474 Clark F.2d (7th Cir.1972), denied, 931 question of whether cert. Worrell is U.S. 972, 2148, qualified immunity (1973); entitled to as to the S.Ct. 36 L.Ed.2d 695 issue, Reinhard, 384, First Amendment is not as Connor easily v. F.2d (7th Cir.1988). resolved. note clearly We do it is government settled law that officials can 1983, In Supreme Court refined the public employees not terminate for exercis analysis Pickering Myers, in Connick v. ing their speak First Amendment to 138, 1684, 461 U.S. 103 S.Ct. 75 L.Ed.2d 708 public except a matter of concern Connick, In Supreme Court Pickering limited circumstances. v. Board explained that a court must first determine of Educ., 391 U.S. S.Ct. speech whether the involves matter of (1968). However, L.Ed.2d 811 whether this public speech concern. If the involves case of the exceptions falls within one to concern, public matter of the court must balancing requires rule of several engage then Pickering balancing in the factors which court is in a the district bet Supreme test. The Court noted that “[t]he position ter to do than this Court. inquiry protective into the status of the high In Pickering, a school teacher was law, speech is fact.” one of not 461 U.S. at paper dismissed published after a local his 148, n n 103 S.Ct. at letter criticizing budget- the school board’s law, ary policies. As a matter the trial The Court court need found that legitimate question jury. letter discussed a not submit the to the topic public How- ever, interest and question therefore was entitled determination this to First protection. Nevertheless, Amendment law turns on the court’s evaluation of evi- presented regarding Economou, Pickering dence exhibit. See Butz v. U.S. oppor- court had S.Ct. 57 L.Ed.2d 895 factors. The district (1978)(administrative tunity per- officials who are hear evaluate prosecutorial judicial forming has functions presented only this while Court Therefore, in initiating moving ad- it. we deem forward with cold record before proceedings enjoy im- district ministrative absolute prudent it to remand to the munity relating suits from those func- of Worrell’s entitlement the determination tions). qualified immunity as to the First If court determines Amendment issue. out, points As Lubcke flaw speech protected speech Lubcke’s immunity argument Worrell’s criteria, Connick-Pickering under the do not from Lubcke’s causes of action arise is not entitled to should that Worrell hold communications Exhibit 12. Lubcke immunity qualified because violated letter, writing did not claim the of the terminating clearly law in settled itself, was a violation of a constitutional exercising rights. her First Amendment Thus, right. the decision to admit the ex- event, against such immunity hibit did not affect Worrell’s be- court determines stand. If the Worrell will opportunity had no cause the to award speech protected not that Lubcke’s writing for the itself. letter judg- should vacate the speech, the court Further, the district court informed to the First against ment Worrell as “absolutely privi- claim. Amendment leged report regarding the information Inspector General [of already determined that As we 2B, 235, in HUD],” R. Court’s Instruction qualified immuni- not entitled to Worrell is prevent any prejudice order unfair issue, ty procedural on the Tromberg, Worrell. See Werth need address that issue district court 204, (1965) 421 (limiting 409 P.2d instruc- on remand. regarding tion admitted exhibit eliminated prejudice party). to admitting court did not err The Exhibit 12 into evidence. pro Idaho Rule of Evidence 402 admissi 12 is a to that “all relevant evidence is letter vides Plaintiff’s Exhibit Evidence is not relevant of the De ble Regional Inspector General ... relevancy Develop question not The Housing Urban admissible.” partment of no discretionary matter as there is Hudgins, the is not a Worrell and ment wherein credibility finding of for the or fact authors, allegations improper issue list four deciding to prior trial and recommend resolve against conduct Accordingly, reject admit or the evidence. investigation a of Lubcke be that full-scale rele as this will review the court’s took no action Court initiated HUD. HUD the de standard vancy decisions under novo this letter. The defendants- a result of considering argu After im of review. contend that exhibit was appellants parties, we conclude that con ments of as to the breach of properly admitted relevant, its did abuse discretion not district court not it was tract claim because (or concluding) that exhibit holding ter having after Lubcke was written been Worrell- to Lubcke’s claims. The Authority argues relevant minated. letter, in of the district Hudgins the words timing and because that because it un court, “frankly, malicious that so issued under not shown have been arguments the defendant’s dermines law or as a result of color of state a ra represented decision termination or it was also policy official custom employee.” to recalcitrant response against it. tional a action relevant § support Lubcke’s Accordingly, it tends to individually ex contends in retalia terminated theory that she was reasons was irrelevant for the above hibit activities; Amendment her First tion for protected she was absolute and because support to Lubcke’s also lends the letter from against any arising claim immunity Housing Authority was claim that the en- court made no finding the amount of gaged campaign against in a smear ‘appeared as to have been cover-up improper given action. passion its Con- under the influence of or ” versely, prejudice.’ I, it tends to undermine the reasons Sanchez Idaho at advanced Authority pur- P.2d at 1241.

porting justify the termination. II, remand, In Sanchez after “the trial court found that the amount of the B. WE REMAND FOR FURTHER him, verdict did not shock but that he did THE FINDINGS REGARDING MO- find it unconscionable. trial court also TION FOR A NEW TRIAL AS TO found that the of the amount verdict indi- A DAMAGES OR REMITTITUR. acting cated that the jury was under the 59(a)(5) Rule of the Idaho Code of passion prejudice.” influence of or San- Civil Procedure allows district court to II, chez Idaho at P.2d at 708. grant a all any new trial “to or of the result, As a this Court refused to “tinker parties part and on all or of the issues in an with the exercise of the trial court’s discre- [ejxcessive action damages for ... or inad tion” and requiring affirmed the order equate damages, appearing to have been II, remittitur or new trial. Sanchez given passion under the influence of Idaho at 772 P.2d at 708. prejudice.” case, Here Lubcke’s the district In drafting opinion, readily this came to 11, 1990, April court’s decision and order opinion mind the last which the late Chief post-trial recognized, on motions in re- Justice Allan Shepard G. wrote before his spect remittitur, to a the trial “[i]f i.e., May death on the concurring judge determines there is great such and dissenting opinion filed in Sanchez v. disparity between or her his own assess- Galey, 772 P.2d ment that it only can be Shepard’s opinion, Justice explained by passion prejudice then a opinions, all of his was well-written new granted....” trial will going After and soundly appeal based records. through applicable law, It is set out full and attached hereto as the district court ruled: Appendix A. opinion, the Sanchez II The damages awarded this violation purported identify Court the stan- of civil appear in light reasonable dard for district courts to follow when of unquantifiable the somewhat faced nature 59(a)(5): with a motion under I.R.C.P. of mental or emotional distress. The If, technically, supported the verdict is plaintiff’s supports evidence a verdict of by substantial, competent evidence and it $57,703 for of breach contract which is excessive, still finds the verdict then it exactly what the awarded. The must in opinion rule whether its damages appear ... do not to have been appears to have acted under the influ- given passion under the influence of or passion prejudice. ence of or In ascer- prejudice. taining jury appears whether the to have acted, judge so looks disparity The properly district court identify did between the and to awards whether such language 59(a)(5) (“given of I.R.C.P. disparity ‘shocks the conscience.’ passion under the preju- influence of Quoting Galey, 609, 112 Sanchez v. Idaho dice”). However, above-quoted conclu- 615, 1234, (1987) (Sanchez 733 P.2d 1240 sion does not that reflect the trial court I). performed required analysis. “[T]he I, In Sanchez the Court set aside trial ruling court’s does disclose the granting weighing evidence, district court’s order remittitur or of the determination of new trial because we could not what “ascertain amount the trial court would have was [respondent], whether the trial court either awarded comparison shocked award, jury’s whether it of this amount found award.” Rice, 504, 509, that award unconscionable.... The trial Stewart v. 817 170, Therefore, court, (1991). re- P.2d we trict we also leave it to the district this the proper to the district court undertake determine award of mand attorney 41(d). of analysis to the breach contract fees. I.A.R. above, claims. noted

first amendment As damage award on we vacated Conclusion process claim and remanded procedural due af- The decision of the district court is new on that issue. for a trial part in part. firmed and reversed in The issue, of resolution this Because proceedings cause is remanded for further question need not of wheth- we address hold conformity herewith. We also claimed damages were excessive as er ap- attorney fees on Lubcke entitled appellants. by the peal to the district court’s deter- but leave mination the amount thereof. Costs to THE PREVAILING LUBCKE IS C. Lubcke. PARTY APPEAL FOR PUR- ON POSES OF ATTORNEY § McDEVITT, C.J., and JOHNSON FEES. TROUT, JJ., concur. requested has that she to 42 attorney pursuant fees be awarded BAKES, (Retired) concurring Justice a permits That 1988. statute U.S.C. § dissenting part. part and discretion, court, attorney in its to award I concur with remand of this While prevailing party at trial and fees to a both court, disagree I case to with the 678, Finney, v. 437 U.S. appeal. Hutto was majority’s conclusion “there direct 2567, 2565, 694, 57 L.Ed.2d 98 S.Ct. evidence showed and circumstantial prevailing party, (1978). In to be a order Hudgins and Worrell were aware that both must at least rights plaintiff obtain “a civil First Amendment activities.” of Lubcke’s merits his claim.” relief on the some — 462, P.2d at Ante U.S.— ,— , Hobby, v. Farrar (1992). 121 L.Ed.2d S.Ct. prima facie case To establish However, only party being prevailing discharged respondent wrongfully be- an award eligibility receive establishes she exercised her First Amendment cause fees attorney fees. amount that her conduct in rights, she must show by considering the awarded determined rights exercising First Amendment Hensley plaintiffs success. extent defendants, and that it was a known to the Eckerhart, 103 S.Ct. 461 U.S. ap- “motivating” factor “substantial” or (1983). In an 76 L.Ed.2d Healthy to fire her. Mt. pellant’s decision principle, the Su example of this extreme Doyle, 429 U.S. City Dist. v. School preme Court held “[w]hen only 50 L.Ed.2d 471 S.Ct. only because nominal recovers First Amend- of an exercise of element prove failure to essential his to the edi- ment Lubcke’s letter only the monetary relief ... his claim Statesman, a meet- The and tor of Idaho usually at all.” no fee reasonable fee is mayor had with and ing the which Lubcke — at— , Farrar, at 575. 113 S.Ct. U.S. county regarding tenant commissioners the However, appellants vehe- complaints. prevail that Lubcke is We hold and argued, in their at a) pre mently both brief she party appeal on because: ing abso- argument, the record contains pro oral liability on judgment her served or that either Worrell lutely Wor no evidence to both issue as cedural Au- Directors b) pre Board of Authority, and rell and actions. aware of these thority were ever liability on the her judgment served Ida- to The time Lubcke wrote the At the that as to Amendment claim least First mayor however, Statesman, met and with ho Housing Authority. Presently, commissioners, defendant county remaining and we remanded some because employed by the not even dis- Worrell proceedings further issues Housing Authority working in ing mayor county with the or commis- —she sioners. California. only by The other evidence cited The cited majority Court of a First Amendment violation is support 2Q Lubcke’s claim are and Exhibits the statement that “Krahn did hire Wor- 2P, which were Worrell’s notes of inter- jury finding rell.” To affirm a majority views with Lubcke. The states exercising Lubcke was fired for her First that in these exhibits “Worrell wrote that rights merely Amendment because Krahn told her that a try- Lubcke co-worker was Worrell, hired or that Worrell worked ing to discredit Lubcke because of ‘the closely Hudgins relating with on matters ” Owen Krahn hassle.’ Worrell wrote termination, permit Lubcke’s is to 2Q, September dated Exhibit engage pure speculation. There is no feared Lubcke Worrell disliked her “due to evidence in this record that either Worrell the ‘Owen Krahn’ situation.” While those or the Board knew about the exercise exhibits indicate that Lubcke told Worrell Lubcke of her rights. First Amendment Krahn about “Owen hassle” or the Furthermore, Lubcke had to introduce situation,” “Owen Krahn and that Worrell exercising evidence that her her First problem knew about a Krahn between rights Amendment was a “substantial” or Lubcke, totally those exhibits are devoid of “motivating” in appellants’ factor decision Lubcke, any statement any reference Again, to fire her. the record contains no knowledge part on the of Worrell or the appellants evidence that respondent fired any Board about letter to the editor of The for violation of several HUD violations. Statesman, any meeting Idaho respondent completely has failed to mayor county All commissioners. any knowledge show or causation between record establishes is that there was a dis- exercise of her and her subse- pute Krahn, between Lubcke and Owen quent Accordingly, termination. I would superior, Lubcke’s and that Lubcke said vote to reverse the trial court’s failure to something However, to Worrell it. about grant judgment a directed verdict or not- Lubcke’s “hassle” with Owen Krahn is not withstanding the verdict first the basis for Lubcke’s First Amendment amendment claim. claim, nor could it be. Her First Amend- Since Lubcke’s First Amendment claim is upon ment claim has to be based the fact merit, necessarily without follows that and the Board knew about majority’s conclusion that met Statesman, letter to The Idaho and her proving appellants her burden of meetings mayor governor, with the and the her contract employment by breached meetings and that letter and those cause, terminating good her without is also “motivating” were “substantial” or factors majority upholds erroneous. the trial in the Board’s decision to fire her. respon- court’s conclusion that because telling Lubcke’s Worrell that she had a discharge dent’s was due to her exercise of

“hassle with Owen Krahn” or that there rights, appellants First Amendment situation,” was an “Owen Krahn is not employment breached the contract. How- evidence that any knowledge ever, Worrell had there is no evidence in the record that writing of Lubcke’s to the editor or meet- her termination was due to her exercise of director, 5. The Court's full statement reads: made executive Krahn met with Hudgins Moreover, and accused Lubcke of misconduct. there was circumstantial evi- Hudgins There was also evidence that Hudgins dence which showed that and Wor- closely together Worrell worked on matters rell knew about Lubcke’s First Amendment termination, Krahn, relating including to Lubcke’s activities. Owen the fired executive director, drafting the of the two dismissal letters as was aware of Lubcke’s statements. Further, jury well as the Krahn letter HUD. The could threatened to fire Lubcke if support Although Lubcke failed to have deduced from this evidence that Krahn him. Krahn did not wanted Lubcke fired terminate Lubcke because of her criticism before his termination, own Krahn did of his administration and then enlisted Hud- hire Worrell. gins plan. After Krahn was terminated and Worrell was and Worrell into that rights. Accordingly, court they her First Amendment were affirmed as related to sustaining jury’s cross-appeal Galey. the is no basis for there employment finding of a breach of con- respect, my With all due it is view that alleged of an First Amend- tract because point from that forward cause en- ment violation. type tered a Lewis Carroll of world. be, Nothing appears is as it and sense APPENDIX A. The majority ap- becomes nonsense. pears uphold the order of the trial SHEPARD, Justice, concurring Chief $950,- reducing jury verdict dissenting. 000.00, or the trial court will order a new portion I in that concur what years passed trial. More than four evidently plurality opinion af- which entry since the of that trial court order. court, giving firms the action of the trial in There is still no indication the record plaintiff-appellant option Sanchez the plaintiff us or before whether not will verdict, accepting jury a reduction remittitur, accept that or whether a new granting in the alternative a new trial. granted. trial be While the record will opinion portion As to that which indicate, question does not so raised interest,’ I ‘post-judgment dis- awards is, course, academic. As a result of sent. perceive intransigence what I to be the genesis prolonged litigation of this Court, ‘post judgment’ of this interest by plaintiff- was the accident suffered has now decreed this been Court appellant Sanchez in November 1982. will, dollars, which within a few restore Sanchez, initiated result- Action was plaintiff only original Sanchez judg- ing upon in a which dollars, million award 1.35 but ment entered in October 1984 the $200,000.00. add another By million dollars. order amount of 1.85 Thus, perceive I as best result January defendant’s mo- dated Court, opinion mandated of this granted ‘unless a tion for a new trial was ‘judgment’ of the dis- the non-existent reducing the accepted,’ remittitur was $900,000.00 awarding trict court judgment entered there- verdict and affirmed, together inter- plaintiff is $950,000.00. As is on to the sum of $620,- approximately in the amount of est opinion of Bist- correctly set forth (See Idaho ch. 000.00. Sess.Laws line, ruling, quoting the trial court’s J. 157; 278.) ch. 1987 Idaho Sess.Laws February 1985 ... order dated ‘[t]he I the actions of Upon remand will await trial unless a remit- granted a new more than parties and the court with effectively vacated accepted, titur was curiosity. the usual judgment judgment and amended its motion for a Will withdraw entered on the verdict.’ previously move for new trial? Will defendant now Plaintiff-appellant then initi- Sanchez court, the trial on its a new trial? Will asserting interlocutory appeal, ated an motion, grant a new trial? What own in the trial court’s action vacat- error any such ac- the time strictures on are verdict, in the alterna- ing opinion suggest that the of this tions? I granting ordering a reduction or the tive court, itself, placed Court has until trial. It has not been of a new imbroglio in an from parties and the parties either the today’s opinion that can extricated. which none judge have known outcome the trial It original interlocutory appeal. 1064, 1081-82, of that Galey, Sanchez noted, pointed correctly out should be P.2d 719-20 J., Bistline, that at a opinion in the Galey joined as later time the defendant asserting error at trial. cross-appellant,

However, opinion of this Court of 1986, the actions of the trial

October

Case Details

Case Name: Lubcke v. Boise City/Ada County Housing Authority

Court Name: Idaho Supreme Court

Date Published: Sep 9, 1993

Citation: 860 P.2d 653

Docket Number: 18691

Court Abbreviation: Idaho