Loran v. Iszler, 10854

• Decision Date: 04 September 1985
• Docket Number: No. 10854,10854
• Citation: 373 N.W.2d 870
• Parties: Ted J. LORAN, Plaintiff and Appellant, v. Harry ISZLER, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 870

373 N.W.2d 870

Ted J. LORAN, Plaintiff and Appellant, v. Harry ISZLER, Defendant and Appellee.

Civ. No. 10854.

Supreme Court of North Dakota.

Sept. 4, 1985.

Rauleigh D. Robinson [argued], Bismarck, for plaintiff and appellant.

Robert Lane [argued], Asst. Atty. Gen., Bismarck, for defendant and appellee.

MESCHKE, Justice.

Ted Loran appeals a district court judgment dismissing his damages action against Harry Iszler, holding that Iszler was entitled to absolute judicial immunity as an administrative hearing officer with the North Dakota State Highway Department. We conclude that Iszler is entitled to immunity and affirm the judgment of dismissal.

Loran was arrested for driving while under the influence. He requested an administrative hearing on the proposed suspension of his driving privileges, pursuant to N.D.C.C. Sec. 39-20-05. After the hearing, the hearing officer, Harry Iszler, rendered a decision adverse to Loran. Loran appealed to the district court.

The section providing for judicial review, N.D.C.C. Sec. 39-20-06, also provides:

"... Within fifteen days after receipt of the notice, the commissioner or the hearing officer who rendered the decision shall file in the office of the clerk of court to which the appeal is taken a certified transcript of the testimony and all other proceedings. It is the record on which appeal shall be determined. No additional evidence may be heard."

The appeal record certified by Iszler contained a particular standard solution analytical report certification and a list of certified operators that had not been entered into evidence at the hearing. The district court's attention was called to the erroneous record. The district court concluded that there was "absolutely no basis for finding" that Loran was tested in accordance with statutory requirements and reversed the suspension.

Loran then sued Iszler for actual and punitive damages for Iszler's improper certification of the administrative hearing record. Loran's complaint alleged that Iszler "... intentionally, negligently, recklessly, and further in violation of NDCC 12.1-11-02, submitted or invited reliance upon a material writing which he knew to be forged, altered, or otherwise lacking in authenticity ..." ¹ and that Iszler "knowingly made a false entry in or a false alteration of a government record; and/or knowingly, without a lawful authority, impaired the verity of a government record in violation of NDCC 12.1-11-05." ² Iszler raised the defense of judicial immunity, among other defenses.

Both Loran and Iszler agree that if Iszler was acting as a judicial officer at the time he prepared the record, he is entitled to absolute immunity. Loran contends that Iszler's conduct in preparing and certifying the record was purely ministerial, thereby subjecting him to liability for damages. Iszler asserts that preparing the record was a continuing part of his duties as hearing officer, entitling him to immunity.

The district court found: 1) Iszler "was the authorized agent of the Highway Commissioner" for matters pertaining to the administrative hearing on the suspension of Loran's driving license; 2) it was Iszler's "duty to see that a record was prepared, that exhibits were received, and that evidence was preserved and to ultimately render a decision"; and 3) it was Iszler's responsibility to make sure "the record was forwarded onto the Highway Commissioner for maintenance of the file" and when judicial review of the hearing decision was requested, "to later prepare the record of the administrative hearing and forward it to the Court." The court concluded that Iszler was acting in a judicial capacity when he prepared and forwarded the administrative hearing record and therefore was "entitled to absolute judicial immunity relative to the subject matter of the Complaint."

The law of immunity of public officials from individual liability is still evolving: See, e.g., Mitchell v. Forsyth, --- U.S. ----, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (providing good analysis of immunity doctrines); Pulliam v. Allen, --- U.S. ----, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) (judicial immunity not a bar to award of attorney's fees under 42 U.S.C. Sec. 1988); Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (federal executive officials entitled to only qualified immunity except in rare instances where absolute immunity is required for conduct of public business); Patzner v. Burkett, 603 F.Supp. 1139 (D.N.D.1985) (qualified immunity defense available to government officials performing discretionary functions).

The Restatement (Second) of Torts offers guidance:

"Sec. 895D. Public Officers

"(1) Except as provided in this Section a public officer is not immune from tort liability.

"(2) A public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function.

"(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if

"(a) he is immune because engaged in the exercise of a discretionary function,

"(b) he is privileged and does not exceed or abuse the privilege, or

"(c) his conduct was not tortious because he was not negligent in the performance of his responsibility." Restatement (Second) of Torts Sec. 895D (1979).

As noted in Comment c to Sec. 895D, some states extend immunity to administrative officers when those officials engage in functions that are quasi-judicial or quasi-legislative in nature. While the Restatement states the general rule as one that protects public officers from liability in tort when they exercise discretionary functions, most litigation in this area centers on what is a discretionary function, as distinguished from what is characterized as a "ministerial act." The inherent problem is succinctly stated in Comment d:

"The cases are legion and are in wide disarray, so that it may appear impossible to organize them into any consistent or coherent whole. The expression, discretionary function, is clearly a standard, requiring measured judgment in its application, and its meaning cannot be reduced to a set of specific rules. Instead, its application to particular facts must be determined by a consideration and evaluation of a number of competing factors."

Those relevant factors are summarized in Comment f to Sec. 895D:

"(1) The nature and importance of the function that the officer is performing.

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"(2) The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of a coordinate branch of government.

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"(3) The extent to which the imposition of liability would impair the free exercise of his discretion by the officer.

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"(4) The extent to which the ultimate financial responsibility will fall on the officer.

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"(5) The likelihood that harm will result to members of the public if the action is taken.

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"(6) The nature and seriousness of the type of harm that may be produced.

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"(7) The availability to the injured party of other remedies and other forms of relief...."

Even with the assistance of such guidelines, the distinction between discretionary and ministerial acts is often one of degree. Under particular circumstances, even a task or function usually considered ministerial (e.g., preparation of ballots, voter registration, highway repair, recording of documents, filing of papers) may actually involve the exercise of discretion. Thus, there is a need to apply the relevant factors on a case by case basis.

North Dakota cases have followed this dichotomy. A register of deeds may be liable for fault in the ministerial action of recording a mortgage; Rising v. Dickinson, 18 N.D. 478, 121 N.W. 616 (1909). On the other hand, this Court has held that a state's attorney is acting in a judicial capacity when he files a criminal complaint, not a ministerial capacity, and thus is immune from a damage action. Kittler v. Kelsch, 56 N.D. 227, 216 N.W. 898 (1927). In Gottschalck v. Shepperd, 65 N.D. 544, 260 N.W. 573 (1935), a college president and members of the board of administration of the college were held to be engaged in a discretionary function in dismissing a professor, so as to be entitled to official immunity from a damage action. And, in South Dakota, social workers' actions in placement and supervision of minors in a foster home were recently held ministerial so that immunity would not preclude a suit based upon those actions; National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982).

In addition to distinguishing between discretionary and ministerial acts, it is also often necessary to determine whether the public official is acting in the general scope of his official authority. When he goes entirely beyond the scope of his authority and does an act that is not permitted at all by his duty, he is not acting in his official capacity and he has no more immunity than a private citizen.

This focal point is highlighted by a recent case from Wisconsin, which involved an action by parents against individuals employed by Milwaukee County for the wrongful performance of an autopsy on their deceased child. The individuals sued claimed they were immune from liability because an autopsy performed by a medical examiner is a quasi-judicial function. While the Wisconsin Supreme Court found that the medical examiner's duties were quasi-judicial, it also determined that the discretion involved was medical and not governmental, and that public policy would not be served by permitting wholesale decisions to perform autopsies. Under the facts presented to it, the Wisconsin Supreme Court held that the officials acted wholly outside their statutory jurisdiction, not...