595 P.2d 534 (Wash. 1979), 45921, Edgar v. State

Docket Nº:45921.
Citation:595 P.2d 534, 92 Wn.2d 217
Opinion Judge:ROSELLINI, Justice.
Party Name:John D. EDGAR and Joyce Edgar, husband and wife, Appellants, v. The STATE of Washington, Respondent.
Attorney:Powell & Harnetiaux, Bryan P. Harnetiaux, Sheila A. Malloy, Spokane, for appellants.
Judge Panel:UTTER, C. J., and STAFFORD, HOROWITZ, WRIGHT, BRACHTENBACH, DOLLIVER, HICKS and WILLIAMS, JJ., concur.
Case Date:May 24, 1979
Court:Supreme Court of Washington
 
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Page 534

595 P.2d 534 (Wash. 1979)

92 Wn.2d 217

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

[92 Wn.2d 218]

Page 535

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

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

Page 536

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 [92 Wn.2d 219] 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 [92 Wn.2d 220] 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.

Page 537

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...

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