Eller v. Idaho State Police

• Decision Date: 24 May 2019
• Docket Number: Docket Nos. 45698 & 45699
• Citation: 165 Idaho 147,443 P.3d 161
• Court: Idaho Supreme Court
• Parties: Brandon ELLER, Plaintiff-Respondent, v. IDAHO STATE POLICE, an executive agency of the State of Idaho, Defendant-Appellant. Brandon Eller, Plaintiff-Appellant, v. Idaho State Police, an executive agency of the State of Idaho, Defendant-Respondent.

165 Idaho 147
443 P.3d 161

Brandon ELLER, Plaintiff-Respondent,
v.
IDAHO STATE POLICE, an executive agency of the State of Idaho, Defendant-Appellant.

Brandon Eller, Plaintiff-Appellant,
v.
Idaho State Police, an executive agency of the State of Idaho, Defendant-Respondent.

Docket Nos. 45698 & 45699

Supreme Court of Idaho, Boise, February 2019 Term.

Filed: May 24, 2019

Brassey & Crawford, PLLC, Boise, for appellant. Andrew C. Brassey argued.

Strindberg & Scholnick, LLC, Boise, for respondent. Erika Birch argued.

BEVAN, Justice.

165 Idaho 151

This appeal arises from a retaliation action under the Idaho Protection of Public Employees Act (the "Whistleblower Act") and a negligent infliction of emotional distress claim against the Idaho State Police. Plaintiff Brandon Eller alleges the Idaho State Police (ISP) retaliated against him in two areas: first, after he testified against another officer in a preliminary hearing, and second, when he voiced objections to a new ISP policy requiring members of the Crash Reconstruction Unit to destroy draft and peer review reports. A jury awarded Eller $30,528.97 in economic damages under the Whistleblower Act and $1.5 million in non-economic damages for his negligent infliction of emotional distress claim. The district court then entered a memorandum decision and order reducing the award for Eller's negligent infliction of emotional distress claim to $1,000,000 because Idaho Code section 6-926 caps the State's liability for actions brought under the Idaho Tort Claims Act (ITCA) at $500,000 per occurrence. Both Eller and ISP timely appealed on several grounds, and their appeals have been consolidated.

We hold that the district court incorrectly applied the ITCA to Eller's claim because the Whistleblower Act supplants it. We vacate the district court's rulings that the Whistleblower Act bars non-economic damage awards and that the ITCA caps Eller's damages, and remand for a partial new trial regarding non-economic damages solely under the Whistleblower Act.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 18, 2011, there was a fatal traffic accident in Payette County involving Payette County Deputy Scott Sloan and civilian Barry Johnson. Sloan was responding to a 911 call, traveling significantly above the speed limit on a two-lane rural highway, when he came upon Johnson's Jeep. Deputy Sloan started to pass Johnson on the left when Johnson turned into his driveway, causing Sloan to crash into the Jeep. Johnson died as a result of the crash. Because the crash involved an on-duty law enforcement officer and a fatality, the ISP conducted the investigation. District 3 Trooper Justin Klitch was the primary investigating officer, while Corporal Quinn Carmack was the assigned crash reconstructionist from District 3's Crash Reconstruction Unit (CRU). CRU member Brandon Eller, who was the lead reconstructionist in District 3, was assigned to help Klitch interview Sloan.

Following his investigation, Carmack's initial report revealed that Sloan drove his patrol vehicle 115 miles per hour and made an unsafe pass around Johnson's Jeep, causing the crash. While multiple tests showed Johnson had a blood alcohol concentration (BAC) at the time of the crash ranging between .053 and .1271 after five blood draws, neither Carmack nor Eller believed Johnson's BAC to be a causational factor. After Carmack's

443 P.3d 166

165 Idaho 152

reconstruction report was peer reviewed by two other reconstructionists, the CRU statewide coordinator for all six ISP districts, Specialist Fred Rice, approved the report for filing.

Just before the final report approval, District 3's top commanders Captain Steve Richardson and Lieutenant Sheldon Kelley intervened. According to the ISP, Lieutenant Kelley supervised the investigation and believed Carmack's initial report was deficient, even to the point of excluding exculpatory material: Johnson's blood alcohol level and the fact he was legally intoxicated at the time of the crash. On December 21, 2011, Kelley held a meeting with Captain Richardson, Rice, and Carmack to discuss the report. Carmack described the meeting as "heated," with Kelley yelling at him, and the supervisors wanting several changes made to the report. Eller testified that the commanding officers also called him in for a "heated" meeting to discuss Carmack's report: "I got the impression they were trying to side me up against Carmack and support what they wanted, as opposed to him doing an unbiased reconstruction of the crash."

Following the meetings, Carmack changed the reconstruction report to read "conclusions" instead of "causational factors," and edited facts within the conclusions section. He also added the information that "Johnson had a femoral artery blood alcohol level of 0.08," explaining that was the "most reliable" blood draw. That said, Carmack felt the edits were factually misleading.

The following year, Gem County brought a felony vehicular manslaughter charge against Sloan. At the preliminary hearing on April 13, 2012, Carmack and Eller were called as prosecution witnesses. Both Carmack and Eller testified that they believed that Johnson's blood alcohol level was not a causational factor of the crash, and Carmack also testified that his superior officers instructed him to remove the statements suggesting Sloan drove recklessly. Eller testified that Sloan drove his vehicle in an unsafe or reckless manner.

Eller later testified that after the preliminary hearing a commanding officer accused Eller of lying on the stand. Rice testified that another commanding officer said Carmack and Eller would "be lucky to have their jobs patrolling nights and weekends." In May 2012—one month after the April 2012 preliminary hearing—Eller received a downgrade in his performance review and was described as causing "dissention" [sic] within the District 3 patrol ranks. This mark affected his eligibility for pay raises. That same month, Kelley was promoted to Headquarters Captain and assigned to be the manager of ISP's state-wide Crash Reconstruction Program.

A year later, in July 2013, ISP issued a directive to destroy all peer review reports within the CRU, which had previously been retained for, among other things, the reports' potential significance as exculpatory evidence. Eller approached both his lieutenant and Kelley to express concerns with the new directive—especially legal concerns that the ISP was destroying evidence in criminal and civil cases—but Eller was told by the commanding officers to follow the directive anyway. More specifically, Eller believed the policy could create a Brady issue where potentially exculpatory evidence would be destroyed rather than turned over to the defense. Eller refused to follow the new policy and continued to maintain peer review records.

Over the next several months, several changes within the ISP impacted Eller's job duties and benefits directly or through the CRU structure. In October 2013, the ISP restructured CRU which placed Eller back on patrol duties, including night and weekend shifts he had not previously had to work, while requiring that he still perform his reconstructionist duties. These changes damaged Eller's work and home life, including his personal health. The ISP also removed Eller from his position as Interim Statewide CRU Coordinator—dissolving that position to split the responsibilities between two other individuals—and then rejected his choice point¹ application, which would have given

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him a pay raise as a reconstructionist instructor. In fact, the ISP prohibited Eller from teaching altogether. On May 27, 2014, Eller resigned as an ISP crash reconstructionist.

Eller sued ISP on January 6, 2015, under the Idaho Protection of Public Employees Act, also known as the "Whistleblower Act." He alleged unlawful retaliation by the ISP because he testified against a fellow police officer at a preliminary hearing and for objecting to the ISP's policy requiring CRU members to destroy all but the final drafts of their reports.

A jury trial started on August 14, 2017. At trial, Eller testified on his physical manifestations of emotional distress, including weight loss, sickness, headaches, skin issues, trouble sleeping, and loss of appetite. In addition, both Carmack and Rice testified on their respective Office of Professional Standards (OPS) investigations, administrative leave, and return to the ISP. Rice also testified on his retirement from the ISP. The ISP objected to several questions presented on these matters on relevance grounds.

On August 30, 2017, the jury returned a verdict in Eller's favor on both of his claims, and awarded him $30,528.97 in economic damages under the Whistleblower Act and $1.5 million in non-economic damages for his negligent infliction of emotional distress claim. While Eller sought emotional distress damages under both his Whistleblower Act and negligent infliction of emotional distress claims, the district court ruled, as a matter of law, that the jury was precluded from...