Edgar v. State

• Decision Date: 24 May 1979
• Docket Number: No. 45921,45921
• Citation: 92 Wn.2d 217,595 P.2d 534
• Parties: John D. EDGAR and Joyce Edgar, husband and wife, Appellants, v. The STATE of Washington, Respondent.
• Court: Washington Supreme Court

Page 217

92 Wn.2d 217

595 P.2d 534

John D. EDGAR and Joyce Edgar, husband and wife, Appellants, v. The STATE of Washington, Respondent.

No. 45921.

Supreme Court of Washington, En Banc.

May 24, 1979.

Powell & Harnetiaux, Bryan P. Harnetiaux, Sheila A. Malloy, Spokane, for appellants.

Slade Gorton, Atty. Gen., Earl R. McGimpsey, Asst. Atty. Gen., Olympia, for respondent.

ROSELLINI, Justice.

This is an action for damages which the plaintiffs claim to have suffered in the amount of $100,000, as a result of the plaintiff husband's having been suspended from certain assignments of duty in the Washington Air National Guard (WANG). The Superior Court dismissed the complaint of the defendant's motion for judgment on the pleadings.

The complaint alleged in substance that the plaintiffs had suffered mental distress and humiliation as a result of intimidation, harassment and threats improperly inflicted upon the plaintiff husband (hereafter plaintiff) by his superior officers, and that these officers had used improper disciplinary and penal sanctions against the plaintiff. It alleged that these actions constituted arbitrary and capricious conduct, outrageous conduct, intentional infliction of emotional distress, invasion of privacy, invasion of civil rights, and a violation of guaranteed state and federal constitutional rights.

Pursuant to Brown v. MacPherson's, Inc., 86 Wash.2d 293, 545 P.2d 13 (1975), wherein we held that a complaint cannot be dismissed upon a motion for judgment on the pleadings if there is any conceivable set of facts which would support it, the plaintiff hypothesizes facts which he asserts he can prove at trial. They can be summarized as follows:

In 1970 the plaintiff, a captain, began active duty as a WANG officer at Spokane. During his 5 years with the Guard, he also performed other duties. In 1971 he was given a security clearance and allowed to fly "air alert," which involved handling or control over nuclear weapons under a program prescribed by the United States Air Force. The program required screening, selection and continuous evaluation of all personnel, who were required to be physically sound and emotionally stable and to demonstrate good judgment and professional competence. The officer responsible for implementing the program was given the authority and means to immediately remove from nuclear weapons duties any individual whom he suspected of being unreliable. Daily assessment of individuals by their peers and immediate supervisors was directed, and certain criteria were given for determining reliability.

Further provisions, all found in the then current Air Force Manual, declared that failure to qualify for the program or remain qualified should not be used as a ground for punitive action, and the regulations with respect to this program did not authorize a supervisor to relieve a participant from all National Guard duty, but only from nuclear weapons duty.

Another section of the manual prescribed acceptable haircuts.

In 1973 the plaintiff's supervisors expressed dissatisfaction with his haircut. Thereafter, in spite of the fact that he had his hair cut to the length prescribed in the manual, and at one time secured a "burr" cut, they continued to harass him because his hair did not conform to their standards. He was reprimanded for consulting a civilian attorney about the matter and for filing a report with the Inspector General. He was threatened with suspension from the air alert program and even possible court martial and dismissal from the Guard. He was accused by his squadron commander of having sent the commander an anonymous "sick" letter which he had not written.

In January 1974, the plaintiff was handed a letter advising him that he was suspended from participation in the nuclear weapons program for 30 days. He was ordered to report for a psychiatric examination upon which he received a favorable report. In spite of this, his suspension was extended to 6 months. But in March 1974, he received from National Guard authorities a new security clearance and instructions to return to his duties. As he was preparing to do so, he received notice that only the federal government could authorize his reinstatement and that his suspension would have to remain in effect until he received reinstatement orders from the United States Air Force.

Due to his suspension from the nuclear weapons program and impairment of other duties, the plaintiff's pay was reduced. As a result of the conduct of his superior officers, he and his wife suffered mental and emotional distress.

The plaintiff makes no contention that the actions taken against him and treatment accorded him by his superiors were authorized or condoned by state statutes, policies, regulations, or customs, or that the officers' actions were controlled by state law. Rather his contention is that these acts were contrary to or in excess of the authority conferred on the officers under the federal regulations found in the Air Force Manual. Nevertheless, he contends that because the National Guard is, officially at least, under the control of the State and the federal program is administered by the State, the State should be liable for negligent or intentional acts of the officers who administer that program, when those acts result in harm to other members of the Guard. He further contends that the acts of his superiors were tortious, entitling him to the recovery of general damages for emotional distress.

The Superior Court's dismissal of the action was grounded upon its conclusion (1) that section 1983 of the Civil Rights Act (42 U.S.C. § 1983) does not authorize suits against states, and (2) that RCW 4.92.090, under which the State of Washington has consented to be sued for its tortious conduct, was not intended to authorize damage suits by members of the National Guard for alleged torts of other guardsmen. These are the two statutes upon which the plaintiff relies as authority for bringing the action.

With respect to section 1983, the Superior Court's conclusion was in accord with the decision of the United States Supreme Court in Quern v. Jordan, --- U.S. ----, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). It was there held that the Congress of 1871, in adopting a provision which is now section 1983, did not intend to subject the states to liability under the act, since such liability would have deprived them of the immunity from suits in federal courts which is provided in the eleventh amendment to the United States Constitution. The plaintiff argues that Congress may nevertheless have intended to permit such suits in state courts. However, he points to no language of the act which would justify such an interpretation. Section 1983 subjects to liability any

person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws . . .

The question before the court in Quern, as Justice Brennan's dissent quite clearly points out, was whether the word "person" as used in this statute included states. It is the inescapable holding of the court that it did not. That holding affirmed the earlier case of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and removed any doubt cast upon the question in Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), wherein the court had found, reversing prior holdings, that the Congress did not intend to exclude municipal corporations from the coverage of the act.

As these cases reveal, the legislative purpose in enacting section 1983 was to provide a remedy for the crimes committed by the Ku Klux Klan against persons who attempted to exercise their newly acquired right to vote and other civil rights, and persons who aided them in that exercise; and that remedy was to be available where state laws purported to protect civil rights but were ignored by those charged with the duty of enforcing them. Where state statutes denied civil rights, the courts would declare the acts unconstitutional and restrain their enforcement, a procedure which did not invade Eleventh Amendment immunity. Those for whose protection the statute was designed were thus afforded a remedy against the State, if its legislature enacted unconstitutional laws, ¹ and against individuals (and now municipalities) where their acts interfered with the exercise of civil rights.

Inasmuch as the State is not suable under section 1983 for acts of its agents subjecting the plaintiff to deprivation of his civil rights, the remedy for such deprivation, if such there was, must be pursued against those individuals who committed the acts.

The remaining question is whether the plaintiff can maintain this action against the State upon a tort theory, under RCW 4.92.090, which provides:

The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.

In construing this statute, we have said that the official conduct giving rise to liability must be tortious, and it must be analogous, in some degree at least, to the chargeable misconduct and liability of a private person or corporation. Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). We have held that the act excludes suits founded on discretionary governmental actions, as such actions are defined by this court. Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975). In our disposition of this case, we need not concern ourselves with that exclusion. The question is, does the plaintiff seek to hold the State liable "to the same extent as if it were a private person or corporation" or does he seek to impose...