Wigger v. McKee

be, is, having DENIED as granted granted. improvidently

been Wigger,

Earl WIGGER Delores

Plaintiffs-Appellants, McKEE, Arapa

Patrice Lamar County Department,

hoe Ruth Sheriff's

Wilder, Arapahoe County Department Services, Arapahoe

of Social Services,

Board of Board of Social Arapahoe

County, Arapahoe County, Defen

dants-Appellees.

No. 88CA1523. Appeals,

Colorado Court

Div. II.

June 1990.

Rehearing July Denied 1990. April Denied

Certiorari P.C.,

Long Jaudon, & Michael T. McCon- nell, McCarville, Denver, Elizabeth A. for plaintiffs-appellants.

Wood, Hames, P.C., Ris & Christian M. Lind, Denver, defendant-appellee for Pa- trice McKee. Heiser, Heiser,

Stern & E. James Den- ver, defendants-appellees Lamar McLeod, Arapahoe County Dept., Sheriff’s Wilder, Ruth Arapahoe County Dept, of Services, Arapahoe County Social Bd. of Services, Social Board of Com’rs of Arapahoe County, Arapahoe County. Opinion by Judge DAVIDSON. action, In Wigger’s this based on Earl allegedly wrongful prosecution, plaintiffs, Wigger, appeal Earl and Delores the sum- mary judgment granted in favor of defen- dants, Arapahoe County, the Board of Arapahoe Coun- ty, Arapahoe County Depart- Sheriff’s ment, Arapahoe County Department Services, Social and Lamar Ruth McKee, Wilder and Patrice in their official capacities. and individual We affirm. Mr. F. the summer of and Mrs. engaged provide day- Delores children, aged care for their three small Wiggers’ home. Because husband, work, the nature of his Delores’ present. Wigger (Wigger), Earl was often afternoon, Saturday after Delores had On looked after the children for less than three weeks, Mrs. F. noticed that the three- and four-year girls genitals. old had reddened and, concerned, F. as she re- Mrs. became case, present deposition called in a for the following exchange: “My she initiated the red, goodness, your has some- bottoms girls not thing happened?” When the did asked, respond, somebody rights, pursuant Mrs. F. “Has Amendment enforceable your panties down?” One or both of pulled to 42 prose- U.S.C. malicious pulled yous pants girls nodded. “Who cution; negligence; conduct; outrageous “Jenny’s daddy Wigger],” down?” [Mr. and defamation. girls. pull “Did he

responded one Concluding disputed that no issues of down, pants Again, one or his too?” both presented record, material fact were indicated, “Yes.” granted the trial court summary judgment contact, among Mrs. F. then tried to oth- in favor of defendants on all claims. ers, (a McKee social worker with Patrice before) consulted once whom she had I. Arapahoe County Department of Social plaintiffs The first contend that the trial department, Services. On the advice of the granting summary judgment court erred in she took the children for an immediate for all defendants under their claim for exam, physical which indicated no clear evi- damages 42 alleging under U.S.C. § dence of sexual abuse. deprivation rights of their constitutional to later, days Three Lamar an in- prosecution be free from absent vestigator Arapahoe County with the Sher- disagree. cause. We Wilder, Department, iffs and Ruth a social Arapahoe County Depart- worker with the A. Services, together

ment of Social inter- girls. The viewed each of the inde- issue, As a threshold we must determine pendently touching by indicated sexual whether the recent Supreme United States terribly but were not communica- Court’s decision in Michigan Will v. De- believing “something tive. While that had Police, partment 491 U.S. interviews, happened” of their on the basis (1989) requires S.Ct. 105 L.Ed.2d 45 thought McLeod and Wilder that further brought dismissal of the claims under investigation charges needed before was against any U.S.C. govern- § would be warranted. Will, ment In Supreme defendants. weekend, following The Patrice McKee Court held that “persons” states are not who, girls, through also interviewed the cannot, under U.S.C. 1983 and there- § speech, use of both anatomical dolls and fore, Here, be sued under the statute. independently gave reports similar of sexu- Arapahoe County, the Board of fondling by Wigger. al Pursuant Arapahoe County, 19-10-104(1) 8B), § Arapahoe County Department of Social summary McKee sent a of the interviews Services, Arapahoe County Sheriff’s to McLeod. Wilder, Department, and Ruth Lamar McLeod, and Patrice McKee in their official Ultimately, presented McLeod a case fil- capacities arguably could be mere arms of ing concerning complaints against Wig- state, in holding which case the in Will ger attorney, indepen- to the district who deprive subject would the courts of matter dently prosecute Wigger decided to on two jurisdiction respect over them with counts of on a sexual assault child. After 1983 actions. We conclude that Will trial, Wigger acquitted. § require does the dismissal of the § Alleging Wigger wrongful- had been Arapahoe County De- claims that, result, ly prosecuted and as a both he partment of Social Services and Ruth Wil- and his wife had suffered extensive eco- der and Patrice McKee in their official ca- damages attorney nomic investiga- pacities employees or consultants to this fees, earnings tion repu- loss of and loss of department, but that it does not affect the tation, distress, pain as well as emotional others. suffering, damages, Wig- and other gers holding premised in present They filed the civil action. on set Will relief, statutory including principle forth nine claims for viola- construction there Congress tion of their Fourth and Fourteenth stated that “if intends to alter balance their own names are not the pur the ‘usual constitutional between state for poses Amendment, and the Federal it of the Eleventh the States even Government/ though they political must make its intention to do so ‘unmistak- subdivisions of ” ably language of the statute.’ the state. Healthy City clear See Mt. Board of That “usual is embodied in the Doyle, supra; balance” Education Moor v. Amendment, Alameda, provides supra; Eleventh which Mosier v. Robinson, (W.D.Ark.1989); F.Supp the states are immune from suit federal by citizens of the Department courts several states or see also State Po Will lice, (at foreign supra enacted, countries. Because the lan- time 1983 was guage “body politic” of U.S.C. 1983 does not mani- the term appropri was most ately applied an public corporation, fest intention disturb the States’ to a which “towns, cites, immunity, counties, Eleventh Amendment the court included but states”). concluded that neither a state nor its offi- not acting capacities cials official their Colorado, a county is defined as “persons” subject to suit under the statute. body corporate politic” “a and has the However, previ- the court left intact its sued, power to sue and be to enter into ous decision in v. New York City Monell contracts, levy and to certain taxes. Sec Services, Department 436 Social U.S. of 30-11-101, (1986 12A). Repl.Vol. tion C.R.S. 658, 2018, (1978). 98 S.Ct. 56 L.Ed.2d 611 Therefore, ego it is not the alter government Monell established that “local purposes state for Eleventh Amendment part units which are not of the States for “person” ais under 42 U.S.C. 1983. § purposes” Eleventh “per- Amendment supreme holdings Our court’s that a Hence, sons” under Will excludes § county political is a of subdivision the state coverage only from 1983 the “States or § “person” and is not a under certain state governmental entities that are considered statutes, see, e.g., County Board Com- ‘arms of the State’ for Eleventh Amend- Love, 121, missioners v. 172 Colo. 470 P.2d purposes.” ment Michigan Will v. De- (1970), 861 do not affect this result. Such Services,

partment supra. Social holdings involve neither the Eleventh governmental entity 1983,

Whether a is Amendment nor 42 and the U.S.C. § an “arm of the by Supreme state” is determined United States Court has noted balancing entity’s independent powers “consistently it has refused to con- entirely dependent political with those on the state. strue the Amendment afford Healthy City Mt. protection political Board Education subdivisions such as 274, 568, Doyle, municipalities, v. 429 97 though U.S. S.Ct. 50 counties and even (1977). pow- L.Ed.2d 471 such a entities exercise ‘slice of state Estates, er’.” Inc. Tahoe Lake v. If entity ego, is the state’s alter 391, Regional Planning Agency, 440 U.S. dependent entirely on the state for the 1171, 99 S.Ct. 59 L.Ed.2d 401 respond funds and resources to to a suit Therefore, damages, equivalent Arapahoe County, for it is to the state. sued Highway properly v. in the name of The Board of Coun Commission Utah Con Co., 194, 104, Arapahoe County, ty struction 278 U.S. 49 S.Ct. see (1929); (1986 12A), 30-11-105, Repl.Vol. 73 L.Ed. 262 see Edelman v. is Jor C.R.S. § 1347, 1983, dan, 651, person 415 U.S. 94 39 L.Ed.2d a under 42 and the S.Ct. U.S.C. § against may it for Healthy City 662 see also Mt. suit not be dismissed Doyle, supra; jurisdiction. Board Education v. lack of Accord Mosier v. Rob Alameda, 693, inson, (W.D.Ark.1989). F.Supp. 411 Moor v. U.S. 555 1785, 93 S.Ct. 36 L.Ed.2d 596 Arapahoe County Sheriff’s De hand, “person” partment qualifies the other counties and mu likewise as a On being ap nicipal corporations that are defined as under the statute. Rather than state, corporate politic” by county sheriff is pointed “bodies and have county in power limited in citizens of the even sue and be sued elected 30-10-501, county depart- Section C.R.S. vision has been made for the which he serves. 12A). being (1986 Repl.Vol. Rather than to have their satisfy ments own funds to guidance them, dependent on the state for con- judgments against appears it funding in ducting his affairs and for case they treasury would look to the state for county many has inde- liability, sheriff such. duties, through pendent see 30-10-512 §§ scheme, statutory Under this we con (1986 12A), 30-10-517, Repl.Vol. C.R.S. Arapahoe County clude that Depart responsible posting himself bond to “person” ment of Social Services is not a liability any potential may that he cover under 42 U.S.C. 1983 and that the § § his office. incur virtue of Section 30- claim it must be dismissed for lack (1986 12A); 10-501, Repl.Vol. see C.R.S. subject jurisdiction. matter See McCon 30-10-522, 12A). Adams, (4th Cir.1987) nell v. 829 F.2d 1319 Arapahoe County De Whether the 1006, 1731, cert. denied 486 U.S. 108 S.Ct. partment “person” of Social Services is a (1988) (county 100 L.Ed.2d 195 electoral separate ques is a under U.S.C. 1981 state); board is arm of Clark Tarrant statutory provisions relat tion. Unlike the (5th Cir.1986) County, (county 798 F.2d 736 sheriffs, ing county to counties and which probation department adult is arm of are included in Title state); Lavine, “Government- Holley but see 605 F.2d Counties,” relating county those to the de (2nd Cir.1979) cert. denied 446 U.S. partments of social services set forth S.Ct. L.Ed.2d 266 Title the “Colorado Social Services Stanton, (7th and Mackey v. 586 F.2d 1126 Robinson, supra Code.” Mosier v. Cir.1978) cert. denied Cf. county (statutory scheme which func (1979) (under S.Ct. 62 L.Ed.2d separate sup tions are from state functions law, county New York and Indiana social ports conclusion that counties are not arms departments services are not arms of state). Also, unlike counties and their state). sheriffs, county departments the of social against Because a suit an officer of very powers independent services have few capacity the state his official is “no explicitly designat They of the state. against different from a suit the state it “agents department” ed as of the state and self” v. Michigan Department Will charged public to administer the assist Police, against supra, the suit Ruth ance and welfare and related activities capacity Wilder in her official must also be respective “in the counties accordance with dismissed, against as must the suit Patrice regulations the rules and for the state de capacity McKee in her official insofar as 26-1-118(1), partment.” Section C.R.S. alleged she was have been consultant (1984 11B). Repl.Vol. Department for the of Social Services. statutory language, Consistent with this against 1983 claims the Board of § appellate our courts have held that the Arapahoe Coun- county departments of social services are ty; Arapahoe County Depart- the Sheriffs Depart- “functional divisions of the State ment; Wilder, Lamar Ruth and ment of Social Services for the convenient capaci- Patrice McKee in their individual program administration of the state and ties; against and those Lamar McLeod and independent separate are not entities and capacities Patrice McKee in their official distinct from the state.” Nadeau v. Merit Arapahoe County employees of remain Council, Colo.App. System 545 standing. Martin v. District see Court, 550 P.2d 864 Colo. B. addition, of the overall cost of the 80% programs through primary appeal contention on

assistance administered Plaintiffs departments through remaining that county supplied the is the defendants is 26-1-122, department. ruling the the court erred in as a matter state trial § 11). to arrest pro- probable Because no of law that cause existed that, prosecute Wigger, Mr. as a sions the defendant must have tainted result, prov- proceedings. their 1983 claim could not be the Gary, supra; Hand v. § Bartle, We error. (3rd en. find no Rose see v. F.2d 331 Cir. 1989) (probable cause finding must have support To a claim under U.S.C. “procured” by acts); been defendant’s Re necessary plaintiff it is for the § (Second) statement of Torts com § (1) prove deprived that has the defendant (1977)(court ment h should take account of right him of a federal that he has evidence). withholding material done so under color of state territorial or Toledo, law. Gomez Hence, probable if cause as a exists mat- 64 L.Ed.2d 572 More S.Ct. irrespective ter of law of whether the over, deprivation even if a constitutional 1983 defendants acted with care due or shown, no liability there is the stat under produced information, certain it cannot be depri ute unless the defendant caused the concluded that negligence defendants’ (5th Gary, vation. Hand v. 838 F.2d 1420 failure to the disclose information in the Cir.1988). preliminary hearing deprived plaintiffs right. constitutional satisfy test, To prong the first plaintiffs rely allegation on here their Here, plaintiffs assert caused of Wig- defendants the denial probable prelimi cause determination at ger’s rights constitutional under the Fourth nary hearing the consequent binding and Fourteenth Amendments to be free over of to trial were tainted prosecution proba- from arrest and absent various acts and omissions of the several ble cause. defendants. suit, damage In a the exist they point Specifically, failure cause, dependent ence when on defendants, McKee, excluding to di- questions, resolution of factual is for vulge during preliminary before or of the jury. Deary determination hearing following information which Officers, Three Police Un-named F.2d part county Social Services De- (3rd Cir.1984). However, genuine if no partment parents’ file: The expressed con- issue as any to material fact if exists and that, by asking leading questions, they cern credibility absent, conflicts the determi may mouths”; in “put girls have words the may judgment nation be made on summary description the a of “unusual manner” in Donovan, a matter of law. Scott v. them; girls’ questioned which the mother F.Supp. (N.D.Ga.1982). parents’ girls that report the the were controlling The standard a “flipping on their in around” stories the probable cause determination is whether days questioning few after the initial ses- person the evidence a is sufficient to induce sion; by the an emer- statement unnamed ordinary prudence and caution reason gency girls room who the nurse examined ably to believe that the defendant commit only that the detectable on their redness charged. People Taylor, ted crime genitalia readily was more attributable to (Colo.1982). 655 P.2d 382 A judicial finding “taking many than too bubble baths” to probable cause under this standard after assault; and sexual McLeod’s determina- preliminary hearing prima a facie evi girls after tion his initial interview with probable prosecute, dence of cause to at that that time there was insufficient may by proof which evidence be rebutted probable evidence to cause. In establish that misrepresented, defendant with addition, plaintiffs assert the coun- that held or falsified hearing. evidence at the Wilder, ty defendants and Frank, (2d Cir.1988); White F.2d 956 incompetent McKee were in their interview- Valley see Stainer v. San Luis Land & ing investigatory techniques and/or Co., Mining ((8th Cir.1908). F. jury have found the tech- that could that

Further, to judicial niques probable finding. defeat a find tainted the cause ing probable cause, any disagree actions or omis rais- We that these factors prosecution had sufficient of fact here so as to evidence to es- disputed

es issues summary judgment motion. probable tablish cause. None has stated defeat opinion that his would be different had reject plaintiffs assertion that We first filing omitted from the statements case by the to disclose any failure defendants suggested been included. None has that proba- noted so tainted the the information any of the defendants withheld information finding inclusion of the cause that the ble intentionally, recklessly,' or in bad faith. brought about a information could have different result. reject plaintiffs’ We also claim that First, although that the state- we note disputed fact issues material exist as to by plaintiffs were not included ments cited McLeod’s, McKee’s, Wilder’s, whether by filing in the case submitted McLeod county’s investigatory and/or interview equivalent attorney, informa- the district techniques probable tainted the cause find report states that vic- tion was: ing. girls”; “questioned mother both that tims’ finding “yes allege and no when moth- Plaintiffs was tainted one answered [the Wigger pulled following asked if Earl had ever because failures er] down”; that the same one an- pants spite her In McLeod and Wilder. of access to yes both and no when Wilder later swered knowledge girls’ that the mother had asked her; asked if had ever touched incident, leading questions them about the diagnosis emergency room was that Wilder and McLeod did not interview the area normal genital one child’s exactly mother to find out what she had that the other’s had some redness “caused they question said. McKee Nor did on by some unknown irritation.” attempted sug- she had to rule whether out gestion report before she submitted her Also, filing although the case failed to gave profes- the sheriff which she her mention McLeod’s determination after the opinion sional that sexual assault had oc- was, time, that there at that first interview attempt curred. No was made to investi- insufficient evidence to establish gate exposed to cause, impression whether the had been this first was irrelevant home, after materials of a sexual nature their to the final submission further inves- early which, fact, tigation. stage, display Play- Even at that both turned out to “something felt that Finally, contrary McLeod and Wilder boy on the coffee table. happened.” had procedures, Wilder standard McLeod did not the case for review submit addition, court, as stated the trial county multi-disciplinary pro- child significant there was a amount of consist- team, may tection which make recommen- indicating ent in the record evidence and dations as to treatment evaluation the sexual assaults had occurred. 19-10-109(6), abused children. Section questioned together by When their moth- 8B) (as then in ef- er, girl improper each indicated that behav- fect). occurred, girl volunteering ior had with one perpetrator Wigger. the that was Further Similarly, plaintiffs assert that the individually by of each interviews child McKee, that her evaluation who knew McLeod, Wilder, McKee, by and one child’s officers, would be used law enforcement therapist specific age resulted in and own the negligently recklessly interviewed appropriate descriptions by girls the of sex- notes, taking without children without fondling by Wigger. ual The limited lead- specifying opinion whether her that mother, ing questions asked the al- sexually girls the was based had assaulted therewith, though up consistent did not set communication, or on verbal non-verbal consistency the detail and of the subse- they had inquiring as to whether without quent independent reports. then sent a letter to been coached. She Furthermore, explain the ba- McLeod which also did not deponents, a number of in- girls the opinion, for her other than that cluding Wigger’s attorneys, two defense sis “reported.” opinions have testified that in their the so

1007 leading we do that judgment While not discount for the defendants on their claim investigatory questions and other flaws can prosecution. However, of malicious probable finding, disagree we taint cause cause of prosecution action for malicious plaintiffs with that reasonable minds could requires plaintiff proof that the prose- was differ to whether such taint could be probable cuted without cause. Montgom- under the found circumstances this ease. ery Pherson, Ward & Co. v. 129 Colo. stated, already As have we mother’s 272 P.2d 643 Because we have al- leading questions that McLeod and Wilder ready probable determined that to cause pursue failed to here not did involve the prosecute irrespective existed of defen- of detail have kind that could discredited nonaction, dant’s action or summary judg- detailed, independent reports prosecution ment on the malicious claim girls. Nor is there evidence that the inves- proper. anyone tigators themselves or other than mother, questions whose we have al- discussed, ready suggested to the how III. they respond. should Next, plaintiffs assert that the trial addition, not while we do condone the granting court erred in summary judgment failure of McLeod to investigate and Wilder its negligence accompanied by on claims of more or the thoroughly ease failure of faith and outrageous bad conduct. explain girls’ “reports,” McKee to we nevertheless the remaining conclude that Negligence party occurs when one gaps by plaintiffs described here also do deviates from reasonable standards of care negate probable Rather, not they cause. another, owed to such conduct natural weight jury may give affect ly foreseeably investigators’ reports injury results to at the criminal trial. People Johnson, (Colo. Webb, See 618 P.2d 262 other. Fagerberg v. 678 P.2d 544 1980). (Colo.App.1983), on other modified grounds sub nom. v. Dessert Webb Seed circumstances, Under these agree we Co., (Colo.1986). 718 P.2d Negligence 1057 trial with the court jury that no reasonable only is actionable it injury when results in conclude could cause did not exist, complaining party. with or without Manemann v. the withheld material investigation. States, (10th or additional Cir.1967); 704 Easton v. United 381 F.2d Boulder, (10th Cir.1985) 776 F.2d 1441 cert. Balajty, Colo.App. Block v. 502 denied 107 S.Ct. (1986); City L.Ed.2d Lee v. Mt. Ver non, Here, N.Y.2d N.Y.S.2d if we even assume the defen Metts, N.E.2d Goodwin negligently, dants acted the only evidence cf. (4th Cir.1989) (jury F.2d could rea injury plaintiffs naturally to the is that sonably find investigating that the officer’s resulting allegedly from Wigger’s wrong prosecutor failure inform the that some prosecution. ful allegation There no one had else confessed the crime could negligently evidence defendants have affected the prosecute). decision to plaintiffs any injury caused that was either Hence, law, aas matter the withholding of independent prosecution of the a not investigation and limited neither tainted the natural result thereof. probable deprived cause nor determination already We have Wig- determined that Wigger right, of a constitutional see Hand prosecution ger’s pursued not was without Gary, supra, we, therefore, v. affirm probable cause and are aware of no author- summary judgment with respect plaintiffs’ ity claim suggesting under 42 that the circumstances U.S.C. asso- § prosecution with a ciated based on

II. cognizable injury. legally cause a Therefore, summary judgment plaintiffs on the next contend that The granting negligence the trial court erred in summary proper. claims was plaintiffs’ privilege Because emotional dis whether the common law may be prosecu applied tress was the direct result is a matter of law for the court. any partic generally, And, tion rather than from statutory privilege, as with the defendants, outrageous ular acts of presence good of faith and the absence of summary judgment appropri likewise presumed. Whittemore, malice are Ling v. outrageous of ate on the claims conduct. supra. Tire, Espinosa See v. Sheridan United Here, plaintiffs the record indicates that 1982) (no (Colo.App. recovery P.2d 424 alleged interview, have defamation in the unless defendant’s conduct caused severe filing, case reports by trial distress). emotional Wilder, and in McKee and a statement therapist McKee to another to whom she IV. counseling. referred one of the Finally, plaintiffs allege error in faith, In the absence of bad the former grant summary judg the trial court’s reports protected by 19-10-110 and § on their claims that ment defendants de the latter privilege. common law Wigger by publishing famed written and court, Like the trial we have found no verbal statements had sexual in pre- evidence the record to young girls. Again, rebut ly mistreated two sumption good faith. disagree. While all the de- we personal fendants depositions submitted allegedly defamatory The statements explaining interviewing reporting their protected by privileges: made here are two general specifi- methods in and in this case statutory privilege The set out in cally, experts’ depo- and McKee submitted 19-10-110, 8B), faith, attesting good sitions to her care and effect; law, qualified then and a common plaintiffs presented no facts from which it privilege making for those communications can be inferred that the defendants acted they duty. in which have an interest or disputed with malice. With no material Whittemore, Ling v. Colo. facts, summary judgment on the def- (1959). amation claim was also not in error. protects liability Section 19-10-110 from Judgment affirmed. any person “participating good faith making report judicial of a or in a HUME, J., concurs. proceeding pursuant held to” the Children’s Code. The statute sets forth a rebuttable TURSI, J., specially concurs. presumption good faith. See Martin v. Judge specially concurring: TURSI Weld, Colo.App. P.2d agree judgment I Because that the correct, trial court in this matter is I concur shown,

Similarly, unless malice is However, in the I am un- result. because privilege protects person common law a persuaded that Colorado counties are mu- liability from for defamation for com- nicipalities subject liability under 42 upon any munication “made bona fide sub- (1982), separately. I U.S.C. write ject party matter in which the communicat- interest, ing has an or in reference to which requires of this issue resolution duty person he has a ... if made to a Department reconciliation of Monell v. having corresponding duty, interest or Services, 658, 98 S.Ct. 436 U.S. Social matter, although incriminating it contains L.Ed.2d 611 and Will v. which, privilege, without this would be Police, 491 Michigan Department Ling slanderous and actionable.” L.Ed.2d 45 109 S.Ct. Whittemore, supra, quoting Bereman holding in reversed the Monell Co., 581, 27 Publishing Power 93 Colo. 167, 473, Pape, 365 U.S. 81 S.Ct. Monroe v. held that 5 L.Ed.2d 492 which had municipalities persons are not under Except weighing any disputed for issues malice, of fact as to the determination of 1983. Monroe, reversing 693,

In the court 1785, Monell U.S. 93 S.Ct. 36 L.Ed.2d 596 upon legislative relied the histories sur- However, those decisions also refer rounding rejection by Congress the of the organic to the of law the state involved to “Sherman Amendment” to the Bill which political determine whether a subdivision is Rights 1871, became the Civil Act of municipality a purposes of suit. precursor the Quoting Stat. of A pertinent review of Colorado authority, debates, legislative from the Justice Bren- part in the latter of the nineteenth century Representative nan cites Shellabarger, the date, and to convinces me that we have not principal sponsor of support- the Act and a equated counties with municipal traditional er of the saying “Sherman Amendment” as corporations. example, For in Stermer v. only question the remaining serious Board County Commissioners, 5 Colo. of “whether, county integer since a is an App. (1894), 38 P. 839 it was held that State, part or of a the United can States county a quasi-corporation is a in contradis it, such, impose upon as any obligation to tinction municipal corporation to a and that keep peace in obedience to United the distinction between the two classes of (emphasis States laws.” in original) Fur- public corporation very is clearly drawn. debates, ther into the Justice Brennan Citing Dill.Mun.Corp. 19, 22, the court §§ quotes Representative Burchard, from who held municipal that “a corporation, in its agreement Representative Poland, with sense, strict proper and body politic is a stated that “there is duty imposed by no corporate, by incorpo constituted States, Constitution of the United or ration of the inhabitants of the city or town usually by laws, upon State county a purposes for the of government local there protect people county of that of.” The court then say: went on to the commission of the offenses herein enu- merated_ difference between this class “[T]he of powers Police are not con- corporations and counties is fundamental upon corporations; ferred counties they county evident. A by is created are upon conferred cities quali- that have legislature without reference to the will legislative fied power.” Justice Brennan of its power inhabitants. It has no emphasized then by part the latter government, local independent or author- century municipalities nineteenth in the ity any officers, kind whatever. Its nature of cities and towns longer were no although people, elected its are virtu- covered sovereign the umbrella of im- ally state, officers of Thus, charged and are munity. implication the clear is that with the administration cities and towns and execution of were not clothed with the sovereign laws of the state. It immunity merely of states and counties. subdivision of purposes the state for the Will, White, writing Justice for the government.” of state majority consequently stated “we limited holding our government Further, in Monell to ‘local in Board County Commis- units part which are not Wheeler, considered sioners v. 39 Colo. 89 P. 50 for Eleventh pur- (1907), Amendment the court held that: poses.’_ Conversely, holding our here “[Cjounties, private purely unlike mu- Monell, does not east doubt on nicipal corporations, voluntary are not applies only governmental to states or enti- corporate. bodies They involuntary, are ties that are considered ‘arms of the State’ political, state, or civil divisions of the for Eleventh purposes.” Amendment by general created laws to aid government. They administration of the authority,

There is generally the form dicta, which, purely auxiliaries of the addressing ques- when state and to diversity general tion of they under 28 statutes of the state U.S.C. § creation, county may has held that a be owe their and the statutes con- treated as municipality. upon fer Healthy City powers they pos- See Mt. them all the School sess, owe, District Doyle, prescribe they Board Education v. the duties 97 S.Ct. impose they 50 L.Ed.2d 471 the liabilities to which Alameda, Moor v. subject.” County v. Board in McFerson And, Commissioners, 354, MARTIN, Keck, 241 P. 733 78 Colo. Rose Roberta Judith although Gonzales, Tolin, McDonald, court held Ben Paul corporation was sometimes municipal Townsend, Dahm, term Robert Mau John counties, a coun- Carmichael, to include Dewey, Cheryl Lycin used statutes reen municipal strictly speaking a Koontz, ty Erner, was not Conger, da Donna Carol was, therefore, subject not corporation Wilson, Sally McGuire, Barbara Kath authoriz- under the statute garnishment Cellar, Miller, Margaret leen Kenneth municipal corpora- ing garnishment Hosmer, Mascarenas, Frank Ronald Maas, Fulks, tions. Baylor, Daniel Bruce Barlow, Keel, Jeanne Deborah Paul Further, passage of the at the time Crawford, Erner, Cooper, Robert Bill 1983, liability tort the common law Allar, Carmichael, Linda Kenneth generally had not municipal corporations Patcheck, McWilliams, Georgia Carole counties such as those been extended to Smith, Wilson, Anne Nila Sharon Jo Abeyta v. Den- Colorado. created Schwindt, Kirkwood, Marilyn Janice ver, M 58, & 437 P.2d 67 165 Colo. Anderson, Harding, Norma Roberta Transportation, Inc. v. Board M Oil Keeler, McWilliams, Kim “Slim” Shir Commissioners, 143 Colo. County Russell, ley Plaintiffs-Appellants, (1960); Fairplay v. Board of P.2d 613 v. Commissioners, 29 Colo. 67 P. MONTEZUMA-CORTEZ SCHOOL DIS RE-1, McAfee, TRICT Bruce Harold rule, continuing efficacy of this For the Gresh, Hutchinson, Janice Robert County Board see Johnson v. Jefferson Green, Cruzan, Chappel, Steve Robert Health, (Colo.1983) quoting Howerton, Defendants-Appel and F.K. from Board Commissioners lees. Love, (1970), 470 P.2d 861 172 Colo. which the court stated: MONTEZUMA-CORTEZ SCHOOL DIS RE-1, Plaintiff-Appellant, TRICT

“A county independent govern- is not an entity existing by mental reason sovereign authority of its resi- inherent MONTEZUMA-CORTEZ EDUCATION dents; rather, political it is a subdivision ASSOCIATION, Basin Uni San Juan state, existing only the conve- serv, corporation, a Colorado Colorado govern- of the state nient administration Association, Education a Colorado cor ment, carry created to out the will of the Martin, poration, Rose M. Roberta J. subdivision, a political state.... As a Keck, Gonzales, Keeler, Judith Roberta commissioners, possess county, and its McWilliams, Dahm, Kim “Slim” John expressly only powers such as are con- Mills, Lang, James V. and James E. upon ferred them the constitution and Defendants-Appellees. statutes, implied incidental and such 85CA1553, Nos. 85CA1583. reasonably necessary powers as are carry powers.” express out such Appeals, Colorado Court of Div. I. Therefore, unnecessary to the since it is case, June 1990. disposition of this I would not extend Monell to Colorado counties. As Modified on Denial of

Rehearing Aug. 1990. for No. 85CA1553 Certiorari Granted April

Case Details

Case Name: Wigger v. McKee

Court Name: Colorado Court of Appeals

Date Published: Jun 7, 1990

Citation: 809 P.2d 999

Docket Number: 88CA1523

Court Abbreviation: Colo. Ct. App.