Henke v. Superior Court of State of Ariz. In and For County of Maricopa, No. 1

• Court: Court of Appeals of Arizona
• Writing for the Court: GRANT; KLEINSCHMIDT, P.J., and FIDEL
• Citation: 775 P.2d 1160,161 Ariz. 96
• Decision Date: 02 May 1989
• Docket Number: CA-SA,No. 1
• Parties: Leo HENKE, a parole officer of the Department of Corrections, State of Arizona, Petitioners, v. SUPERIOR COURT OF the STATE OF ARIZONA, In and For the COUNTY OF MARICOPA, Honorable Stephen A. Gerst, a judge thereof, Respondent Judge, Craig KESSLER, as Guardian for Plaintiffs/Minor Children, Real Parties in Interest. 88-253.

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775 P.2d 1160 161 Ariz. 96 Leo HENKE, a parole officer of the Department of Corrections, State of Arizona, Petitioners,
v.
SUPERIOR COURT OF the STATE OF ARIZONA, In and For the COUNTY OF MARICOPA, Honorable Stephen A. Gerst, a judge thereof, Respondent Judge,
Craig KESSLER, as Guardian for Plaintiffs/Minor Children, Real Parties in Interest. No. 1 CA-SA 88-253. Court of Appeals of Arizona,
Division 1, Department D. May 2, 1989.
As Corrected May 10, 1989.
Reconsideration Denied July 11, 1989.

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[161 Ariz. 97] Robert K. Corbin, Atty. Gen. by Ronald J. Greenhalgh, Asst. Atty. Gen., Phoenix, for petitioners.

Risner & Graham by Kenneth K. Graham, Tucson, for real parties in interest.

OPINION

GRANT, Chief Judge.

This special action arises from a lawsuit filed against the state, the Department of Corrections (DOC) and a DOC parole officer by the guardian of three young children who were molested by a paroled child molester. The parole officer, Leo Henke, asks us to take jurisdiction of this special action and order the trial court to dismiss him from the lawsuit.

Henke raises two issues of first impression in Arizona:

1. Does a defendant in a section 1983 state court action have the same right to an immediate appeal of the trial court's denial of his motion to dismiss based on qualified immunity as a defendant has in a section 1983 federal court action?

2. Have the plaintiffs below (real parties in interest here) stated a proper claim under section 1983?

Henke also raises a third issue: that even if the plaintiffs can state a section 1983 claim, Henke is protected by qualified immunity. We need not address this issue because the plaintiffs cannot state a section 1983 claim.

FACTS

After serving a sentence for child molesting, Lyle Crego was on parole having been released from prison on January 2, 1986. ¹ His parole terms required that he live in an approved residence not close to schools, that he not live with anyone with small children, and that he use no drugs or alcohol. He told DOC officials that he planned to move into a former relative's mobile home. However, he actually moved into a

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[161 Ariz. 98] small apartment with a woman, Susan Matthew, and her three minor children. ² The plaintiff children allege that DOC officials never verified that Crego was living in the mobile home or that such a residence even existed.

Sometime late in January, Crego and Susan Matthew told Henke, Crego's parole officer, that Crego was living with Matthew and her children. Henke allegedly responded that Crego should move, but he took no action, even though he knew Crego was violating the terms of his parole.

On February 4, 1986, Crego told Henke he had moved to a motel. When Henke made an announced visit about a week later, Henke found Crego in a room without food or cooking facilities. The plaintiffs intimate that this indicated Crego was not living at the motel and should have further alerted Henke to take action.

On February 18, 1986, a relative of Susan Matthew's, Norma Williams, informed Henke that Crego was using drugs and molesting Matthew's children. On February 20, 1986, about seven weeks after Crego's release, Henke arrested Crego at Matthew's apartment.

After a dependency petition was filed, the juvenile court appointed a guardian ad litem for the children. The guardian then pursued the action against Henke and the state, claiming that Crego began molesting the children the day he moved into the apartment; that Henke knew Crego had violated his parole conditions by living with Matthew and her children; and that Henke took no action for two days even after he was directly told that Crego was molesting the children.

The complaint alleged gross negligence by all three defendants in failing to supervise and exercise control over Crego after his release as well as after actual notification of his parole violations. The guardian also alleged that the defendants' actions violated the children's 14th and 8th amendment rights and sought compensation under 42 U.S.C. § 1983. ³

The trial court dismissed the gross negligence count against Henke and the constitutional-violation count against the state and DOC. ⁴ The court, however, denied Henke's motion to dismiss the section 1983 count against him.

Henke then filed this special action petition on November 25, 1988, seeking to overturn that denial. We granted his request for a stay of the trial, which was to have begun November 28, 1988.

SPECIAL ACTION JURISDICTION

We take the unusual step today of accepting special action jurisdiction of a trial court's denial of a motion to dismiss.

A trial court's denial of a motion to dismiss or denial of a motion for summary judgment is a non-appealable, interlocutory order. Engle Bros. Inc. v. Superior Court, 23 Ariz.App. 406, 533 P.2d 714 (1975); C. Smith, Civil Trial Practice § 321, at 284 (1986). As a result, the only avenue for interlocutory appellate review is by special action. We follow a general policy, however, of declining jurisdiction when relief is sought to obtain review of orders denying motions to dismiss or for summary judgment. Scottsdale Publishing Inc. v. Superior Court, 159 Ariz. 72, 764 P.2d 1131 (1988); United States v.

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[161 Ariz. 99] Superior Court, 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985).

Our analysis in this case is not simply whether to take special action appellate review of the usual denial of a motion to dismiss in a civil case. Based on the right involved here, there is no way short of interlocutory review to review the trial court's alleged error before the primary benefit of Henke's qualified immunity is lost.

Henke contends that we must accept jurisdiction of this special action for two reasons. First, he argues that because the federal system allows interlocutory appeals of a trial court's denial of a motion to dismiss based on qualified immunity, the state must provide a parallel procedure. Second, he points out that the benefit of qualified immunity is freedom from trial, not merely freedom from liability. Therefore, he contends, if he is erroneously forced to stand trial, he has lost the benefit of immunity, even if he is found not liable. The plaintiffs state that they do not object to our taking jurisdiction because we have already stayed the trial.

In federal courts, section 1983 defendants may immediately appeal the district court's denial of their motions to dismiss or for summary judgment based on qualified immunity, as long as the issue turns on a question of law. Mitchell v. Forsythe, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Because the benefit of qualified immunity is immunity from suit rather than a mere defense to liability, it is effectively lost if the case is erroneously permitted to go to trial. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815, 86 L.Ed.2d at 425. Therefore, denial of a motion to dismiss based on qualified immunity is effectively...