Burnham v. West

• Decision Date: 29 January 1988
• Docket Number: Civ. A. No. 87-0464-R.
• Citation: Burnham v. West, 681 F.Supp. 1169 (E.D. Va. 1988)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Forrest BURNHAM, et al., Plaintiffs, v. Roy A. WEST, et al., Defendants.

681 F. Supp. 1169

Forrest BURNHAM, et al., Plaintiffs, v. Roy A. WEST, et al., Defendants.

Civ. A. No. 87-0464-R.

United States District Court, E.D. Virginia, Richmond Division.

January 29, 1988.

David P. Baugh, Claire G. Cardwell, Richmond, Va., Gerald T. Zerkin, Michael P. Kozak, Zerkin, Heard & Kozak, Richmond, Va. and Kay Ely-Pierce, for plaintiffs.

Frank B. Miller, III, Elizabeth Parrish, Sands, Anderson, Marks & Miller, Richmond, Va., for Harrison-Jones.

James W. Morris, III, Ann Adams Webster, David P. Corrigan, Browder, Russell, Morris & Butcher, Richmond, Va., for other defendants.

SUPPLEMENTAL OPINION AND ORDER

SPENCER, District Judge.

By order entered December 28, 1987 this Court ruled that although the defendants in this case had conducted unlawful searches, they were entitled to qualified immunity from all damages liability. Plaintiffs' motion to reconsider is now before the Court. Plaintiffs argue in this motion that federal qualified immunity principles do not bar damages liability under their claim pursuant to Va. Code Ann. section 19.2-59 (1983),¹ and that defendants' conduct satisfies the requirements for both compensatory and punitive damages liability under Virginia law. Defendants respond that (1) their federal qualified immunity does shelter them from damages liability under section 19.2-59, (2) sovereign immunity precludes their liability under that statute, or, in the alternative, that (3) this Court should not retain pendent jurisdiction of the question of defendants' state law liability, but should instead dismiss the matter so that it can be taken up in the state courts if plaintiffs are so advised.

Plaintiffs' motion to reconsider will be granted because it raises important legal issues necessary to resolution of this case. The Court having determined, with the agreement of counsel, that oral argument will not be necessary, the matter is now ripe for disposition.

I

Three conditions govern the power to exercise pendent jurisdiction: the case must present a federal claim sufficiently substantial to support jurisdiction, the state and federal claims must at least "derive from a common nucleus of operative fact," and the claims must be of a character that would normally require their adjudication in a single proceeding. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed. 2d 218 (1966). The federal claim in the case at bar has been found sufficiently substantial to support summary judgment in the plaintiffs' favor, and it derives from exactly the same facts as the state claim. Since section 19.2-59 provides the same protection as the Fourth Amendment, Carter v. Commonwealth, 209 Va. 317, 163 S.E.2d 589 (1968), cert. denied, 394 U.S. 991, 89 S.Ct. 1479, 22 L.Ed.2d 766 (1969), it is reasonable to expect plaintiffs to try their federal and state claims together. See generally Eason v. Eason, 204 Va. 347, 350, 131 S.E.2d 280, 282 (1963) (party may be precluded from litigating issues that could have been tried in an earlier proceeding); accord Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). This Court has power to exercise pendent jurisdiction over plaintiffs' state law claim. As for the discretionary question whether that power should be exercised in this case, "considerations of judicial economy convenience and fairness to litigants" weigh in favor of such an exercise, see Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139, and no other factors weigh against it. As later discussion will show, the issue at hand does not raise unique questions of Virginia law that should be decided by the state courts in the first instance.

Plaintiffs' reliance on the Rules of Decision Act,² which requires this Court to apply Virginia law to the issue at hand, does not answer the crucial question: what immunity, if any, is available to defendants under Virginia law? Some state courts have adopted federal principles of qualified immunity,³ while others have preferred to identify immunity principles in state law and to extend them to modern contexts.⁴ Plaintiffs are correct in arguing that this Court's earlier qualified immunity ruling does not dispose of their state law claim, because Virginia has not adopted federal qualified immunity principles as such. Instead, the Supreme Court of Virginia has sought to achieve, under the sovereign immunity rubric, a synthesis of common law immunity principles that will be useful for all the "constantly shifting facts and circumstances" that come before the courts of the Commonwealth. Messina v. Burden, 228 Va. 301, 307, 321 S.E.2d 657, 660 (1984). The discussion that follows will examine those principles and explain why and how they apply in the case at bar.

Under Virginia's approach to sovereign immunity, the doctrine is viewed as having developed from being simply a "privilege of sovereignty" into a mainstay of public policy.

The doctrine of sovereign immunity serves a multitude of purposes including but not limited to protecting the public purse, providing for smooth operation of government, eliminating public inconvenience and danger that might spring from officials being fearful to act, assuring that citizens will be willing to take public jobs, and preventing citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation.

Messina, 228 Va. at 308, 321 S.E.2d at 660. The immunity enjoyed by governmental employees⁵ is not regarded in Virginia as independent of the immunity held by the Commonwealth itself; instead, the former is the logical and necessary extension of the latter. This conclusion is grounded partly in the agency-related principle that "the State can act only through individuals," Id., 228 Va. at 308, 321 S.E.2d at 661, and partly in the policy-related principle that "unless the protection of the doctrine extends to some of the people who help run the government, the majority of the purposes for the doctrine will remain unaddressed." Id.

The immunity afforded to those public servants who are entitled to it is of the same character at all levels of government, but its application at some levels is broader than at others.

Governors, judges, members of state and local legislative bodies, and other high level government officials have generally been accorded absolute immunity. General agreement breaks down, however, the farther one moves away from the highest levels of government. Nevertheless, on a case-by-case basis, this Court has extended immunity to other government officials of lesser rank.

Id. at 309, 321 S.E.2d at 661 (citation omitted). The analysis in such cases is a functional one: "we examine the function the employee was performing and the extent of the state's interest and involvement in that function." James v. Jane, 282 S.E.2d 864 (1981). Analysis of function and governmental interest should include consideration of "whether the act complained of involved the use of judgment and discretion" and of "the degree of control and direction exercised by the state over the employee." Messina, 228 Va. at 313, 321 S.E.2d at 663. Finally, the nature of the allegedly injurious act itself is relevant. Sovereign immunity does not protect a state employee who commits an intentional tort, Elder v. Holland, 208 Va. 15, 155 S.E.2d 369 (1967), or a negligent act outside the scope of his or her public duties. Sayers v. Bullar, 180 Va. 222, 22 S.E.2d 9 (1942). See also Fox v. Deese, 234 Va. 412, 422-425, 362 S.E.2d 699, 705-706 (1987) (stating both of the foregoing propositions).

To summarize for purposes of the case at bar: Virginia's sovereign immunity doctrine provides governmental employees with a margin for error if they meet the doctrine's eligibility requirements. These requirements, stated broadly, are that the employee work for an immune governmental entity, and that the employee exercise judgment and discretion in carrying out his or her duties, or act at the immune employer's express direction, or both. Eligible governmental employees acting within this margin, which encompasses what are referred to generally in the cases as acts of "simple negligence," will not be subjected to liability in damages. Governmental employees in a proper case are afforded immunity, despite the undesirable effects of their immunized mistakes, because the government itself will suffer if its agents fail or refuse to act because they fear the consequences of acting in error. However, where the character of an employee's act takes it outside the scope of that employee's governmental duties, or where the employee acts with wrongful intent, the doctrine affords no protection.

In its earlier ruling, having found that the searches at issue in this case violated the Fourth Amendment's reasonableness standard, this Court proceeded to find that the defendants also violated Va. Code Ann. section 19.2-59 (1983). It must now be determined whether the sovereign immunity doctrine can apply to a violation of section 19.2-59.

Section 19.2-59 was originally enacted during Prohibition⁶ in response to widespread complaints concerning unreasonable searches. Durham Bros. & Co. v. Woodson, 155 Va. 93, 101, 154 S.E. 485, 487 (1930). The statute protects against unreasonable searches and seizures, which are "forbidden by the common law, and by the Fourth Amendment ..., which is but declaratory of the common law on the subject." McClannan v. Chaplain, 136 Va. 1, 14, 116 S.E. 495, 498 (1923). At common law, unreasonable searches and seizures were regarded as trespassory torts. See Steagald v. United States, 451 U.S. 204, 219, 101 S.Ct. 1642, 1651, 68 L.Ed.2d 38 (1981) (remedy for unreasonable search of dwelling was action in trespass); accord McClannan, 136 Va. at 10-11, 154 S.E. at 497. Section 19.2-59 concerns a common law tort that has achieved constitutional dimensions, and the statute specifies the familiar tort law remedy of damages. Sovereign immunity,...