Gartin v. Jefferson County, 2-61428

• Decision Date: 26 April 1979
• Docket Number: No. 2-61428,2-61428
• Citation: 281 N.W.2d 25
• Parties: Donald E. GARTIN, Appellant, v. JEFFERSON COUNTY, Iowa, Edwin F. Kelly, Jr., Individually and as Jefferson County Attorney, and Sam Swaim, Appellees.
• Court: Iowa Court of Appeals

Page 25

281 N.W.2d 25

Donald E. GARTIN, Appellant, v. JEFFERSON COUNTY, Iowa, Edwin F. Kelly, Jr., Individually and as Jefferson County Attorney, and Sam Swaim, Appellees.

No. 2-61428.

Court of Appeals of Iowa.

April 26, 1979 Application for Further Review Denied by Supreme Court June 8, 1979.

Thomas M. Walter, of Barnes & Walter, Ottumwa, for appellant.

Charles E. Miller, of Lane & Waterman, Davenport, for appellee Edwin F. Kelly, Jr.

Gene R. Krekel, of Hirsch, Link, Adams, Hoth & Krekel, Burlington, for appellee Jefferson County and Edwin F. Kelly, Jr.

Pat McNulty, Asst. Atty. Gen., for appellee Sam Swaim.

Heard by OXBERGER, C. J., and SNELL, CARTER and JOHNSON, JJ.

JOHNSON, Judge.

Plaintiff, Donald Gartin, appeals from trial court's dismissal of his petition in an action for malicious prosecution, abuse of process, conspiracy, obstruction of justice, conspiracy to obstruct justice, and denial of civil rights guaranteed by the United States Constitution and federal statute. Trial court dismissed all portions of plaintiff's petition in response to a special appearance entered by defendant Swaim and to motions to dismiss filed by defendants Edwin F. Kelly, Jr., Jefferson County Attorney, and Jefferson County.

In his petition consisting of four divisions, plaintiff alleged, Inter alia, that defendant Swaim, a state agent for the Bureau of Criminal Investigation, without probable cause and maliciously caused a Preliminary Information to be filed charging plaintiff with subornation of perjury and attempted subornation of perjury for which plaintiff was arrested. Thereafter, plaintiff was indicted by Grand Jury, tried on the charges and acquitted. He further alleged that the indictment was based on unreliable facts and that defendant Kelly, as prosecutor, used previously suborned witnesses to testify falsely against plaintiff at trial.

Plaintiff asserts that trial court erred: 1) in sustaining defendant Swaim's special appearance based on trial court's finding that it lacked jurisdiction due to plaintiff's failure to file his claim against defendant Swaim as required by Chapter 25A, The Code 1977; 2) in granting defendant Kelly's motion to dismiss based on a claim of absolute immunity as a prosecutor; and 3) in granting defendant Jefferson County's motion to dismiss on the ground that Kelly's absolute immunity as a prosecutor also insured absolute immunity to the county as his employer. We affirm in part and reverse in part.

I. Error Based on Trial Court's Sustaining Defendant Swaim's Special Appearance

Chapter 25A, The Code 1977, bars suit against a state employee acting within the scope of his or her employment (a fact undisputed in this case) unless an administrative claim has been submitted to the state appeal board and the board has made a final disposition of the claim. § 25A.5, The Code 1977. Plaintiff argues his allegation that defendant Swaim engaged in willful and wanton conduct places the present action outside the purview of chapter 25A and, therefore, permits him to circumvent the requirements of that chapter. ¹ We, therefore, must determine whether the present action involves a claim against an employee, as defined by section 25A.2(5)(b), which requires plaintiff to exhaust his administrative remedy before proceeding in court. See Charles Gabus Ford v. Iowa State Highway Comm'n, 224 N.W.2d 639, 647 (Iowa 1974).

In proceedings against the State under chapter 25A, it always must be determined to what extent sovereign immunity has been waived. Claims which are outside the scope of the waiver must be denied. See Megee v. Barnes, 160 N.W.2d 815, 817 (Iowa 1968). With regard to employees of the state, however, the general rule is that a state officer, agent, or employee is liable personally under common law principles for unauthorized tortious acts committed in performance of official duties except to the extent that liability is specifically limited by statute. See Lenth v. Scherg, 226 Iowa 1, 3, 281 N.W. 510, 511 (1938); 81A C.J.S. States § 126 (1978). As a result, prior to 1975, any suit against a state employee was governed by the procedures which govern lawsuits generally. See e. g., Jones v. Bowers v. Swaim, 256 N.W.2d 233, 234 (Iowa 1977); Anderson v. Calamus Community School District, 174 N.W.2d 643, 644 (Iowa 1970). Chapter 25A was amended effective July 1, 1975, to bring tort claims against any state employee within its provisions. ² Jones v. Bowers v. Swaim, 256 N.W.2d at 234.

Section 25A.2(5)(b) defines "claim" as:

(a)ny claim against an employee of the state for money only, on account of damage to or loss of property or on account of personal injury or death, caused by the negligent or wrongful act or omission, Except an act of malfeasance in office or willful and wanton conduct, of any employee of the state while acting within the scope of his office or employment. (emphasis added)

While the plain language above excludes willful and wanton conduct from the definition of claim, the State contends that its duty to defend and indemnify an employee pursuant to section 25A.21, The Code 1977, as amended by chapter 45, section 1, 1977 Session, 67th G.A., ³ is dependent upon an employee's act which falls within the definition of claim. Thus, despite the plain language of section 25A.2(5)(b) excluding willful and wanton conduct from the definition of claim, the legislative intent, nonetheless, was to bring such acts within the purview of chapter 25A.

The 1977 amendment to section 25A.21, The Code 1977, states:

(t)he state shall defend and, except in cases of malfeasance in office or willful and wanton conduct, shall indemnify and hold harmless any employee of the state against any claim as defined in section twenty-five A point two (25A.2), subsection five (5), paragraph b, of the Code, including claims arising under the Constitution, statutes, or rules of the United States or of any state.

Literal interpretation of the above language results in the conclusion that the state has neither the duty to defend nor indemnify a state employee if a plaintiff's petition is based on allegations of willful and wanton conduct only unless the definition of "claim" is said to include such conduct. The pertinent language is "(t)he state shall defend and . . . shall indemnify and hold harmless any employee of the state against any claim as defined in section . . . (25A.2(5)(b)) . . . ." To define claim in any other way, the State further argues, would mean that the legislature could have had no purpose in inserting the language "except in cases of malfeasance in office or willful and wanton conduct" in the 1977 amendment because it would result in the following redundancy: "The state shall defend and, except in cases of malfeasance in office or willful and wanton conduct, shall indemnify and hold harmless any employee of the state against any claim . . . (except an act of malfeasance in office or willful and wanton conduct) . . . ."

We conclude, however, from the plain language of section 25A.2(5)(b), that the definition of "claim" does not include willful and wanton conduct and that the apparent redundancy can be resolved by interpreting the language of the 1977 amendment in light of the code section it amended, its explanatory language and section 25A.22, The Code 1977. ⁴

Prior to amendment, section 25A.21, The Code 1977, entitled "Officers and employees defended" provided The state Shall defend any employee of the state, whether elected or appointed And, except in cases of malfeasance in office, willful and unauthorized injury to persons or property, Or willful and wanton conduct, shall save harmless and indemnify such employees of the state Against any tort claim or demand, whether groundless or otherwise, arising out of an alleged act or omission occurring within the scope of their employment or duties. (emphasis added)

The terms of this section thus make the state's duty to defend an employee broader than its duty to indemnify. The explanatory language of the 1977 amendment stated that it was "(a)n Act relating to indemnification and defense of employees of the state in cases arising under federal or state Constitutions, statutes or regulation and making the Act retroactive (to July 1, 1975)."

We do not believe that the legislature intended to narrow the state's duty to defend by the 1977 amendment. The only reasonable explanation for the changes in the language of section 25A.21, The Code 1977, effected by the amendment, is that the legislature intended expressly to extend the state's duty to defend and indemnify in state proceedings to cases involving constitutional and statutory actions as well as common law tort actions.

Support for this interpretation also is found by examining the language of section 25A.22, which requires the state to "defend, indemnify and hold harmless an employee of the state in any action commenced in federal court under section 1983 . . . against the employee for acts . . . (committed) . . . in the scope of employment." The state has no duty under this section to indemnify or hold harmless the employee if the action is based on the exceptions to claims as defined in section 25A.2(5)(b). This exception could only have reference to malfeasance in office or willful and wanton conduct.

The apparent redundancy which the state asserts would result if willful and wanton conduct is not included in the definition of claim thus is more logically the result of legislative drafting which combined the language of section 25A.21, The Code 1977, with "exceptions to claims" language of section 25A.22.

We find that the Appeals Board has primary or exclusive jurisdiction, which would require a plaintiff to exhaust his or her administrative remedy under chapter 25A, only in those actions with could result in the state's liability through the duty to indemnify its employee on a claim. This duty does not extend to actions based on willful and wanton conduct. ⁵ Requiring ...