Green v. DeCamp, 79-1270

• Decision Date: 04 January 1980
• Docket Number: No. 79-1270,79-1270
• Citation: 612 F.2d 368
• Parties: William E. GREEN, Appellant, v. John W. DeCAMP, Douglas K. Bereuter, Ernie Chambers, Donald N. Dworak, Steven Fowler, William E. Nichol, Barry L. Reutzel, Loren Schmit and Toney J. Redman, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 368

612 F.2d 368

William E. GREEN, Appellant, v. John W. DeCAMP, Douglas K. Bereuter, Ernie Chambers, Donald N. Dworak, Steven Fowler, William E. Nichol, Barry L. Reutzel, Loren Schmit and Toney J Redman, Appellees.

No. 79-1270.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 9, 1979.

Decided Jan. 4, 1980.

Duane L. Nelson, Lincoln, Neb., for appellant.

Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for appellee; Paul L. Douglas, Atty. Gen., Lincoln, Neb., on brief.

Before ROSS and STEPHENSON, Circuit Judges, and McMANUS, ^* District Judge.

STEPHENSON, Circuit Judge.

William E. Green appeals from the district court's ¹ order granting defendants' motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Green's complaint seeking monetary and injunctive relief under 42 U.S.C. § 1983 alleged that defendants eight state senators who are members of a Select Committee of the Nebraska Legislature and the counsel for the committee deprived Green of liberty or property interests without due process of law in violation of the fourteenth amendment. This was allegedly done by exceeding their legislative authority in preparing and releasing a committee report, which Green contends falsely charged that he, as chief of police for McCook, Nebraska, knowingly and corruptly conducted an improper investigation of a possible murder. The district court held that the complaint failed to allege or show Green was deprived of a property or liberty interest protected by the fourteenth amendment, and further that the state senators and committee counsel were protected by official immunity. We affirm.

By legislative resolution the Nebraska Legislature had created a Select Committee "to review the operation of the Criminal and Drug Divisions in the Nebraska State Patrol." During its review, the Select Committee investigated the April 25, 1973 death of Ida G. Fitzgibbons in McCook, Nebraska. There had been serious questions as to whether the death was the result of homicide or suicide. After investigation, Chief Green had ruled it a suicide. The Nebraska State Patrol conducted a follow-up investigation of the death at the request of the county attorney, and after pressure from local citizens. It was the alleged inadequate review by the state patrol which the Select Committee was investigating. The Committee conducted hearings, and prepared and released a report made available to the public entitled the "IDA G. FITZGIBBONS REPORT." In addition to discussions and conclusions regarding the state patrol investigation, the report reached the following conclusions concerning the local investigation:

The original investigation conducted under the authority of Chief Green appears to be totally inadequate, lacking in professionalism, and the entire conduct of Chief Green suggests that there may have been an intentional effort by Green, for whatever reasons, to justify a suicide theory during the coroner's inquest at the expense of the facts.

On appeal Green alleges: (1) He was deprived of a liberty or property interest protected by the Due Process Clause of the fourteenth amendment; (2) therefore he has stated a cognizable claim under 42 U.S.C. § 1983; and (3) legislative immunity does not extend to the defendants' activities in this case.

In order to sustain an action under 42 U.S.C. § 1983, Green must allege a deprivation of a constitutional right. Here Green contends the action of the committee resulted in a deprivation of a property or liberty interest without being given due process of law, in violation of the fourteenth amendment. We agree with the district court that Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) is controlling in the present case. Paul involved the circulation of a flyer by defendants, various chiefs of police, which listed plaintiff as an "active shoplifter." The Court held an action for injunctive and monetary relief under 42 U.S.C. § 1983 was properly dismissed because, although the imputation of a crime may be defamation per se, the stigma to one's reputation was not a property or liberty interest protected by the fourteenth amendment. Green's allegations of a loss of business as a result of the damage to his reputation, without more, does not change this conclusion. A similar allegation was made in Paul v. Davis, supra, 424 U.S. at 697, 96 S.Ct. 1155.

Green argues that Paul is of questionable validity, and this present case should be governed by Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). While concededly there is language in Constantineau which would support Green's position, in Paul the Supreme Court expressly narrowed and distinguished that case. In Constantineau the chief of police caused to be posted in a retail liquor store a notice that sales or gifts of alcohol to plaintiff were forbidden. The decision in Paul stated that the posting of the plaintiff's name in Constantineau involved a deprivation of a property interest protected by the fourteenth amendment, because it "deprived the individual of a right previously held under state law the right to purchase or obtain liquor * * *." Paul v. Davis, supra, 424 U.S. at 708, 96 S.Ct. at 1164. No such loss of a right granted by state law existed in Paul, and similarly we find no such right or interest here. Therefore, Paul, and not Constantineau, is controlling here.

Green argues that Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) requires that due process attach to the action of the Select Committee. Jenkins involved a committee established for a different purpose, and one that performed a different function.

Rather, everything in the Act points to the fact that (the Commission) is concerned only with exposing violations of criminal laws by specific individuals. In short, the Commission very clearly exercises an accusatory function; it is empowered to be used and allegedly is used to find named individuals guilty of violating the criminal laws of Louisiana and the United States and to brand them as criminals in public.

* * * In the present context, where the Commission allegedly makes an actual finding that a specific individual is guilty of a crime, we think that due process requires the Commission to afford a person being investigated the right to confront and cross-examine the witnesses against him * * *.

395 U.S. 427-429, 89 S.Ct. 1852. This clearly distinguishes our situation, where the committee made no actual findings that Green was guilty of a crime, but instead reached conclusions concerning local police practices, which were clearly incidental to the committee's investigation of the state patrol. The situation is more similar to Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960), where the issue was whether persons under investigation by the Civil Rights Commission were entitled to certain due process rights. The Court determined that the commission's function was investigative and did not require the requested procedures.

(T)he respondents contend and the court below implied, that such procedures are required since the Commission's proceedings might irreparably harm those being investigated by subjecting them to public opprobrium and scorn, the distinct likelihood of losing their jobs, and the possibility of criminal prosecutions. * * * (E)ven if such collateral consequences were to flow from the Commission's investigations, they would not be the result of any affirmative determinations made by the Commission, and they would not affect the legitimacy of the Commission's investigative function.

363 U.S. at 442-43, 80 S.Ct. at 1515.

We conclude the district court properly determined that Green did not allege sufficient facts to demonstrate he had been denied a constitutional right. ² He therefore has no cause of action on the basis of 42 U.S.C. § 1983.

Additionally, we are persuaded that the district court was correct in concluding that the defendants are protected by the doctrine of official immunity.

The existence of official immunity for state legislators from suit under 42 U.S.C. § 1983 was established, and its scope defined, in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Brandhove brought an action alleging a state legislative committee's actions deprived him of first amendment rights, equal protection, and due process. The committee had read into the record statements concerning the alleged criminal record of plaintiff, and asked local officials to bring criminal charges against him. The Court held that the passage of the Civil Rights Acts did not impinge on traditional legislative immunity.

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