Livsey v. Salt Lake Cnty. & Potter

• Decision Date: 26 December 2001
• Docket Number: No. 00-4005,00-4005
• Parties: (10th Cir. 2001) NORMA LIVSEY, KIPP LIVSEY, and KELLY LIVSEY, Plaintiffs-Appellants, v. SALT LAKE COUNTY and SGT. JIM POTTER, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 952

275 F.3d 952 (10th Cir. 2001)

NORMA LIVSEY, KIPP LIVSEY, and KELLY LIVSEY, Plaintiffs-Appellants, v. SALT LAKE COUNTY and SGT. JIM POTTER, Defendants-Appellees.

No. 00-4005

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 26, 2001

Appeal from the United States District Court for the District of Utah (D.C. No. 99-CV-564) Robert H. Copier, Salt Lake City, Utah, for Plaintiffs-Appellants.

T.J. Tsakalos, Deputy District Attorney (David E. Yocom, Salt Lake County District Attorney, with him on the brief), Salt Lake City, Utah, for Defendants-Appellees.

Before SEYMOUR and HENRY, Circuit Judges, and OBERDORFER, District Judge.^*

OBERDORFER, District Judge.

Norma Livsey, Kipp Livsey, and Kelly Livsey brought this action under 42 U.S.C. 1983 against Salt Lake County and Jim Potter, a County police officer. The complaint alleged that the plaintiffs' constitutional rights were infringed by a statement by Potter published in a local newspaper about the sexual behavior of a deceased member of the plaintiffs' family and by the County's failure to grant the plaintiffs' request for a name-clearing hearing for the decedent. The district court dismissed the complaint for failure to state a claim, and later denied the plaintiffs' motion for reconsideration and for leave to amend. The plaintiffs appeal. We have jurisdiction pursuant to 28 U.S.C. 1291, and we affirm.

I

On August 27, 1997, the Deseret News, a local newspaper in Salt Lake County, published an article reporting that:

Hikers found the body of a man, identified only as a white male in his 60s, Tuesday night about 30 yards from a dirt trail near 3000 E. Emigration Canyon Road. Police first suspected foul play in the death but are now saying the death was an accident. 'It looks like it was one of those autoerotic things.' Salt Lake County Sheriff's Sgt. Jim Potter said Wednesday. 'We're still waiting for the autopsy results, but there was some type of binding involved.'

Appellant's App. at 10. Subsequently, the body was publicly identified as one Edward J. Livsey, the husband of Norma Livsey and the father of Kipp and Kelly Livsey.

Further investigation led to criminal charges, a widely-publicized trial, and a murder conviction. The record on appeal does not include any details about the criminal trial. On April 24, 1998, citing Potter's statements to the press, as reported, Kipp and Kelly Livsey filed a written request with the Salt Lake County governing body requesting an administrative name-clearing hearing. No one representing Salt Lake County responded to this petition.

On July 22, 1999, the plaintiffs filed a complaint in the United States District Court for the District of Utah against the County and Potter. The complaint alleged that Potter's statement, along with the denial of the name-clearing hearing, "deprived [them] of their liberty and privacy interests secured under the constitution and the laws" and actionable under 42 U.S.C. 1983.

The defendants filed a motion to dismiss for failure to state a claim on the grounds that (1) that the plaintiffs could not vicariously assert the constitutional rights of her husband and their father; (2) that Paul v. Davis, 424 U.S. 693 (1976), and its progeny establish that mere defamation or slander cannot support a procedural due process claim; and (3) that the complaint did not allege an official policy, practice or custom as required to bring a claim against the County. In their opposition, the plaintiffs responded that (1) they were not asserting a vicarious claim but rather their own personal constitutional rights to liberty and property (2) that even after Paul v. Davis their procedural due process claim was rendered viable by Utah's constitutional provisions and legislation protecting crime victims' rights, and (3) that their claims against the County were direct claims because Potter was the County spokesperson and because the County was responsible for the denial of the name-clearing hearing.

Before the district court ruled on the defendants' motion to dismiss, and before the hearing on that motion, the plaintiffs filed their own motion for summary judgment. In that motion they contended that they were entitled to summary judgment on three issues of law: (1) whether the failure to grant a hearing "shocked the conscience" and thus violated the plaintiffs' rights to substantive due process; (2) whether Potter's statement "shocked the conscience" and thus violated the plaintiffs' rights to substantive due process; and (3) whether their rights as crime victims under Utah's constitution and laws was a constitutionally-protected liberty interest that triggered a right to procedural due process. Also prior to the hearing on the defendants' motion to dismiss, the plaintiffs filed a motion to strike the defendants' reply contending that it attempted to claim for the first time that the plaintiffs' complaint was limited to procedural due process claims. The plaintiffs asserted in their memorandum in support of their motion to strike that they were also bringing a substantive due process claim on the ground that the government action "shocked the conscience." At the hearing on the motion to dismiss, the plaintiffs emphasized that it was their position that Paul v. Davis did not require dismissal of their entire complaint because it did not apply to "all of the other liberty and privacy interests under the constitution and laws such as substantive due process and privacy" which the plaintiffs also intended their complaint to raise. Appellants' App. at 18.

Also at the hearing, the district court asked the defendants' attorney "[j]ust as a matter of curiosity" why no name-clearing hearing had been granted. The attorney responded:

Your Honor, there's two sides to every story on this case, and there are lots of things that happened here. The body was found, okay? And then there was a criminal prosecution and a trial which was widely publicized. And what was that trial about? It was about how this man died. And in this case what came out, the truth was worse than the fiction. And so a name-clearing hearing, with all due respect, I don't think was appropriate.

Id. at 29.

The district court granted the defendants' motion to dismiss. The court concluded that (1) the procedural due process claim against Potter would be dismissed because Paul v. Davis established that damage to one's reputation by itself is insufficient to support a procedural due process claim and because the plaintiffs were not "crime victims" within the meaning of the Utah Constitution and statutes; and (2) the claim against the County would be dismissed because there was no underlying constitutional violation. Appellant's App. at 23-25. Despite the district court's statement at the hearing that "it sounds to me like what [the plaintiffs' attorney] is arguing is that your individual privacy and/or liberty interests may be infringed and/or violated if someone does or says certain things about a member of your family," Appellee's App. at 27, the district court dismissed the complaint in its entirety without directly addressing these claims on the merits. The district court did, however, opine, in the context of denying the plaintiffs' motion to strike the defendants' reply, that the complaint did not adequately plead a substantive due process claim. Appellant's App. at 21.

The plaintiffs then filed a motion for reconsideration under Federal Rule of Civil Procedure 59, seeking to amend their complaint to include substantive due process and privacy claims. The district court denied their motion. With respect to the plaintiffs' claim that "justice will be served by having plaintiffs' claims for 'substantive due process' and 'privacy' violations adjudicated together with their 'procedural due process claim,'" id. at 26, the court responded that "[t]he arguments Plaintiffs now make were previously advanced, considered, and rejected by this Court," id. at 28.

On appeal, the plaintiffs contend that the district court erred because (1) Potter's disclosure to the press of private sexual practices attributed to the decedent breached the plaintiffs' constitutional right to privacy; (2) Potter's disclosure along with the County's refusal to grant a name-clearing hearing deprived the plaintiffs of their constitutional right to substantive due process; and (3) the County is liable on both claims. These issues involve questions of law which we review de novo. Dang v. UNUM Life Ins. Co., 175 F.3d 1186, 1189 (10th Cir.1999); Estate of Holl v. Commissioner, 967 F.2d 1437, 1438 (10th Cir.1992). We address each issue in turn.

II

A. Constitutional Right to Privacy

The plaintiffs contend that Potter breached their constitutional right to privacy when he disclosed to the press sexual information about the deceased without any government interest justifying the disclosure. They claim that an individual's right to privacy encompasses the right not to have information revealed about a spouse's sexual behavior where that behavior necessarily reflects upon or reveals the intimate details of a marital relationship.¹

The Supreme Court has recognized that one component of the right to privacy is "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). We have further explained that:

Due process . . . implies an assurance of confidentiality with respect to certain forms of personal information possessed by the state. Information falls within the ambit of constitutional protection when an individual has a legitimate expectation . . . that it will remain confidential while in the state's possession. The legitimacy of this expectation depends, at least in part, upon the intimate or otherwise personal nature of the material which the state possesses. If an individual has a legitimate expectation of confidentiality, then disclosure of such information must advance a compelling state interest which, in...