Mazzucco v. North Carolina Bd. of Medical Examiners

Decision Date06 October 1976
Docket NumberNo. 7610SC326,7610SC326
Citation228 S.E.2d 529,31 N.C.App. 47
CourtNorth Carolina Court of Appeals
PartiesMary Frances MAZZUCCO and Geraldine Patton McClelland, Plaintiffs, v. The NORTH CAROLINA BOARD OF MEDICAL EXAMINERS, consisting of the following individual members: Dr. Joseph W. Hooper, Dr. Bryant L. Galusha, Dr. Cornelius T. Patrick, Dr. Vernon W. Taylor, Jr., Dr. Frank Edmondson, Dr. E. Wilson Staub, Dr. Charles B. Wilkerson, Jr., and Mr. Bryant D. Paris, Jr., Defendants.

William H. Elam, Charlotte, for plaintiffs-appellants.

Smith, Anderson, Blount & Mitchell by John H. Anderson, Raleigh, for defendants-appellees.

CLARK, Judge.

The defendants' motion under G.S. 1A--1, Rule 12(b)(6) to dismiss for failure of the complaint to state a claim upon which relief can be granted will only be allowed when, under former practice, a demurrer would have been sustained because the complaint affirmatively discloses that the plaintiff had no cause of action against the defendant. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Brown v. Brown, 21 N.C.App. 435, 204 S.E.2d 534 (1974).

The Board of Medical Examiners of the State of North Carolina was created by the General Assembly in 1859 'to properly regulate the practice of medicine and surgery.' G.S. 90--2. These regulatory statutes now contained in Chap. 90, Art. 1, General Statutes of North Carolina, have been held to be a constitutional exercise of the police power of the State. State v. Van Doran, 109 N.C. 864, 14 S.E. 32 (1891); State v. Call, 121 N.C. 643, 28 S.E. 517 (1897); State v. Siler, 169 N.C. 314, 84 S.E. 1015 (1915); Hoke v. Board of Medical Examiners, 395 F.Supp. 357 (W.D.N.C.1975).

The defendant Board was created by statute as an agency of the State. An action against an agency of the State is in fact an action against the State. Insurance Co. v. Unemployment Compensation, 217 N.C. 495, 8 S.E.2d 619 (1940). It is settled law in this State that neither the State nor any of its institutions or agencies can be sued without its permission. Insurance Co. v. Gold, Commissioner of Insurance, 254 N.C. 168, 118 S.E.2d 792 (1961); Etheridge v. Graham, Comr. of Agriculture, 14 N.C.App. 551, 188 S.E.2d 551 (1972).

All defendants contend that the action should be dismissed because of the doctrine of sovereign immunity. Plaintiffs allege defamation, a cause of action in tort. Jurisdiction of tort claims against the State and its agencies is vested in the Industrial Commission under the Tort Claims Act, G.S. Chap. 143, Art. 31. But plaintiffs have no remedy under the Tort Claims Acts as it is applicable only to negligent acts of employees and other agents of the State. G.S. 143--291. Nor does this tort action come within the exception to the doctrine of sovereign immunity for contract actions recently announced in Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976), Affg., 23 N.C.App. 423, 209 S.E.2d 336 (1974).

We find that the action against the Board of Medical Examiners was properly dismissed on the ground that the defense of sovereign immunity appeared on the face of the complaint.

However, this defense cannot be applied to the individual defendants because of the allegations that they acted maliciously and wantonly. Where state officials exceed or abuse their lawful authority, and thereby violate or invade rights of others, in an action to redress these injuries, the State's immunity does not extend to them. 72 Am.Jur.2d, States, Territories and Dependencies, § 115 (1974). No action lies against a public officer for an honest exercise of his discretion, though erroneous, but for a corrupt or malicious exercise of discretion such officer may be made to respond in damages to an individual injured thereby. State v. Swanson, 223 N.C. 442, 27 S.E.2d 122 (1943). The allegations in the complaint alleging that the individual members of the Board of Medical Examiners acted 'maliciously, wantonly, knowingly and intentionally' without justification are sufficient to prevent the individual defendants from prevailing on the defense of sovereign immunity on a motion to dismiss under G.S. 1A--1, Rule 12(b)(6).

In considering a motion to dismiss for failure to state a claim upon which relief can be granted the allegations of the complaint are taken as true. Sutton v. Duke, supra. A claim should not be dismissed under Rule 12(b)(6) unless it appears that the plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim. Clouse v. Motors, Inc., 14 N.C.App. 117, 187 S.E.2d 398 (1972); Shuford, N.C. Civil Practice and Procedure, § 12--10 (1975).

All defendants also contend that the alleged defamatory statements are absolutely privileged. Absolute privilege attending communications made in the course of judicial proceedings was recognized at common law. Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954). This common law immunity was extended to judges, prosecutors and witnesses. This absolute immunity applies only to actions for defamation and malicious prosecution, and the immunity is justified only insofar as is necessary to protect the judicial process. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

Judicial and prosecutorial immunity rests on the principle that if not so protected, our judicial and prosecutorial officers, even though honest and conscientious, would labor under the constant threat of civil suit and judicial proceedings would be seriously hindered. Imbler v. Pachtman,supra; Bouligny, Inc....

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  • Smith v. McDonald
    • United States
    • U.S. District Court — Middle District of North Carolina
    • April 28, 1983
    ...in a judicial or quasi-judicial function. Angel v. Ward, 43 N.C.App. 288, 258 S.E.2d 788, 792 (1979); Mazzucco v. Board of Medical Examiners, 31 N.C.App. 47, 228 S.E.2d 529, 532, appeal dismissed, 291 N.C. 323, 230 S.E.2d 676 (1976). Under the common law of North Carolina, communications to......
  • Binkewitz v. Allstate Ins. Co.
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    ...process works best that way. Our cases accord with authorities in other jurisdictions. See, e.g., Mazzucco v. N.C. Bd. of Medical Examiners, 31 N.C.App. 47, 228 S.E.2d 529 (1976); (charges before Board of Medical Examiners); Lewis v. Elliott, 628 F.Supp. 512 (D.D.C.1986) (administrative pro......
  • Lewis v. Oliver
    • United States
    • Arizona Court of Appeals
    • October 14, 1993
    ...a judicial or quasi-judicial function." Smith v. McDonald, 895 F.2d at 149, citing Mazzucco v. North Carolina Bd. of Medical Examiners, 31 N.C.App. 47, 228 S.E.2d 529, 532 (N.C.App.1976).2 Appellant cites French v. Civil Aeronautics Bd., 378 F.2d 468 (10th Cir.1967), for the proposition tha......
  • Epps v. Duke University, Inc.
    • United States
    • North Carolina Court of Appeals
    • April 16, 1996
    ...(1993); Locus v. Fayetteville State University, 102 N.C.App. 522, 526, 402 S.E.2d 862, 865 (1991); Mazzucco v. N.C. Bd. of Medical Examiners, 31 N.C.App. 47, 49-50, 228 S.E.2d 529, 531-32, disc. review denied, 291 N.C. 323, 230 S.E.2d 676 (1976). A suit against a public official in his offi......
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