Overman v. Klein

• Decision Date: 27 October 1982
• Docket Number: No. 13641,13641
• Citation: 103 Idaho 795,654 P.2d 888
• Parties: Lillian A. OVERMAN, Plaintiff-Appellant, v. Milton G. KLEIN, Linda Caballero, Larry Isom, Betty Phillips, and Mike Neher, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 888

654 P.2d 888

103 Idaho 795

Lillian A. OVERMAN, Plaintiff-Appellant, v. Milton G. KLEIN, Linda Caballero, Larry Isom, Betty Phillips, and Mike Neher, Defendants-Respondents.

No. 13641.

Supreme Court of Idaho.

Oct. 27, 1982.

Rehearing Denied Dec. 28, 1982.

Ismael Chavez, Caldwell, for plaintiff-appellant.

David H. Leroy, Atty. Gen., Thomas C. Frost, Steven M. Parry, Deputy Attys. Gen., Boise, for defendants-respondents.

SHEPARD, Justice.

This is an appeal from an order dismissing plaintiff's complaint. Plaintiff-appellant, Lillian A. Overman, asserted causes of action under state tort law sounding in defamation and violation of the right to privacy against defendants-respondents, employees of the State Department of Health and Welfare, in both their individual and official capacities. A cause of action was also asserted alleging that under color of state law, that same conduct deprived plaintiff-appellant of her constitutional rights in violation of 42 U.S.C. § 1983. The trial court dismissed those claims based on state law, holding that as to the defendants' liability in their official capacities, notices as required under the Idaho Tort Claims Act, I.C. §§ 6-901 et seq., had not been timely served. As to the causes relating to the liability of the defendants in their individual capacities, the court held that since the alleged tortious conduct arose from filing an affidavit in a judicial proceeding, they enjoyed absolute immunity. As to the § 1983 cause of action, the court, applying federal law, held that the defendants were acting as witnesses and hence enjoyed absolute immunity from civil liability.

The litigation out of which the present cause of action arose was the subject of this Court's decision in Overman v. Overman, 102 Idaho 235, 629 P.2d 127 (1981). In January, 1978, Mrs. Overman obtained an uncontested divorce from her husband and therein was awarded custody of the couple's five minor children. In September, 1978, Mr. Overman petitioned for a modification of the divorce decree seeking custody of the children. He sought and obtained ex parte an immediate temporary change in custody for a period of ten days pending a hearing on his petition for a permanent change in custody. That motion for an ex parte temporary change in custody was supported by an affidavit of defendant-respondent Mike Neher, a social worker employed by the Idaho Department of Health and Welfare. It is that affidavit which allegedly constituted defamation and invasion of privacy, a violation of constitutional rights under the color of state law, and hence it is the basis of the instant action.

The affidavit was based on information contained in the files of the Department of Health and Welfare. It is recited that the affidavit is based on the personal involvement of the affiant, Neher, with Mrs. Overman and others upon the complaints received by the Department relating to the care of the children, and a home study and evaluation conducted by the Department. It is also related that the change of custody to the father was in conformance to the best interests and well-being of the children and that in the event such change of custody to the father was unsuccessful, the Department would seek to obtain custody under the Child Protective Act, I.C. §§ 16-1601 et seq. It is also recited that Mrs. Overman planned to leave the State of Idaho and take the children with her and thus beyond the jurisdiction of the court.

In brief, the facts supporting the conclusions of the affidavit were that the mother was leaving the children for prolonged periods of time, that the children were not regularly attending school, that the children were being physically abused, that the children were often left with strangers and that the children were not fed or clothed. In addition, it was stated that the mother had relinquished custody to a foster home and then reacquired custody through trickery and deceit. As aforesaid, the district court ex parte granted a temporary change in custody for a period of ten days. Thereafter a plenary hearing was scheduled on Mr. Overman's petition for a permanent change in custody. Upon the motion of Mrs. Overman, such hearing was continued and ultimately a plenary hearing was held. Thereafter the court entered an order modifying the decree of divorce and granting Mr. Overman permanent care, custody and control of the children. An appeal was brought to this Court not from the court's modification of the decree to award permanent custody to Mr. Overman, but solely from the order granting temporary custody for a period of ten days. Upon appeal it was argued that any appeal from the order granting temporary custody was moot, since the court had later entered a permanent change of custody order and no appeal was taken from that order. Nevertheless, this Court proceeded to examine the cause on its merits, held that the trial court's findings relating to the necessity to change the custody of the children to the father was supported by the evidence, and upheld both orders of the district court. See Overman v. Overman, supra.

In February, 1979, this action was filed against Neher and four other employees of the Department, who, it was alleged, acted as Neher's supervisors. It was asserted that defendants were under a duty to maintain the confidentiality of the records of the Department of Welfare and to preserve the privacy of the family, and that disclosure of the information contained in the Neher affidavit constituted grounds for relief under the three causes of action. As aforesaid, the complaint was dismissed.

As to the causes of action against the defendants in their official capacities for defamation and violation of the right to privacy, those were dismissed on the basis of the failure of Mrs. Overman to comply with the notice of claim provision of the Idaho Tort Claims Act, I.C. § 6-905. That section provides:

"6-905. Filing claims against state or employee--Time.--All claims against the state arising under the provisions of this act and all claims against an employee of the state for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the secretary of state within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later."

I.C. § 6-908 provides:

"6-908. Restriction on allowance of claims.--No claim or action shall be allowed against a governmental entity or its employee unless the claim has been presented and filed within the time limits prescribed by this act."

In accordance with I.C. § 6-908, compliance with the notice of claim requirement is a mandatory condition precedent to bringing suit against the state or its employee. Newlan v. State, 96 Idaho 711, 535 P.2d 1348, appeal dismissed sub nom., Agost v. Idaho, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Jacaway v. State, 97 Idaho 694, 551 P.2d 1330 (1976). The notice of claim requirement of I.C. § 6-905 serves the purposes of providing an opportunity for parties to resolve their dispute through settlement without resort to the courts, allowing authorities to conduct a timely investigation of the claimant's cause of action to determine the extent of the state's liability, if any, and allowing the state to prepare its defenses. Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981).

The district court construed the complaint against the defendants-respondents in their official capacities as, in essence, a suit against the state. The trial court was correct. Grant Construction Co. v. Burns, 92 Idaho 408, 443 P.2d 1005 (1968); Biscar v. University of Wyoming Board of Trustees, 605 P.2d 374 (Wyo.1980). We therefore affirm the order of the trial court dismissing plaintiff's complaint as it relates to the defendants-respondents in their official capacities. Newlan v. State, supra; Jacaway v. State, supra.

As to the causes of action against the defendants-respondents in their individual capacities, such were dismissed by the trial court on the basis of witness immunity. Defendants-respondents argue that the trial court's dismissal of the causes of action against them in their individual capacities was proper on the alternative ground that I.C. § 6-905, requiring a timely notice of claim, applies not only to suits against the state, but also to suits against state employees for their acts or omissions in the course or scope of their employment. We agree.

It is alleged in the complaint that at all times material to the cause of action, defendants-respondents acted within the course and scope of their employment.

As originally enacted in 1971, I.C. § 6-905 provided:

"Filing claims against state--Time.--All claims against the state arising under the provisions of this act shall be presented to and filed with the secretary of state within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later.

See 1971 Idaho Sess.Laws, Ch. 150, § 5, p. 746. Thus, the original enactment did not require as a prerequisite to a suit against a state employee as an individual any notice of claim be filed with the Secretary of State. However, in 1976 the Tort Claims Act was comprehensively revised to provide for governmental liability "for money damages arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their employment or duties ...." I.C. § 6-903(a) (emphasis added). The statute further required the government to provide a defense to its employees and to be responsible for the payment of any judgment on any claim against its employees, arising out of any act or omission within the course and scope of their employment. At that same time, I.C. § 6-905 was amended to require a filing of a notice of claim with the Secretary of State for money damages against the state, and "against an employee...