Vander Lynden v. Crews

• Citation: 205 N.W.2d 686
• Decision Date: 28 March 1973
• Docket Number: No. 55348,55348
• Parties: Kenneth E. VANDER LINDEN, Appellant, v. Paul CREWS et al., Appellees.
• Court: United States State Supreme Court of Iowa

Page 686

205 N.W.2d 686

Kenneth E. VANDER LINDEN, Appellant, v. Paul CREWS et al., Appellees.

No. 55348.

Supreme Court of Iowa.

March 28, 1973.

Bert A. Bandstra, Knoxville, for appellant.

Richard C. Turner, Atty. Gen., and Larry M. Blumberg, Asst. Atty. Gen., Des Moines, for appellee Paul Crews.

Heard by MASON, RAWLINGS, LeGRAND, REES, UHLENHOPP, HARRIS and McCORMICK, JJ.

REES, Justice.

This appeal is from an order of the trial court sustaining motion for summary judgment of defendant and sole appellee, Paul Crews, who with the other defendants had been sued by plaintiff for damages based upon plaintiff's claim he had been maliciously prosecuted by defendants.

Defendant Crews, on October 19, 1969, was Secretary of the Iowa Board of Pharmacy Examiners, and was designated as Director of Drug Law Enforcement. His duties embraced planning, organizing and directing field operations necessary to control illegal narcotic and dangerous drug traffic, to investigate complaints or incidents of pharmacy law violations, and to gather evidence and assist in the preparation of court cases against violators. Plaintiff Vander Linden was the owner and proprietor of a pharmacy in Pella. On October 19, 1969 he was arrested by defendant Crews without a warrant and taken before a justice of the peace where Crews executed and filed a preliminary information charging plaintiff with the sale of stimulant drugs without a prescription in violation of chapter 189 of the Acts of the 62nd General Assembly (now chapter 204A, Code of Iowa, 1971).

Plaintiff was indicted by the grand jury of Marion County, and was later tried to a jury which returned a verdict of acquittal; thereafter, plaintiff instituted his action against defendants based upon his claim of malicious prosecution.

Defendant-appellee Crews filed his motion for summary judgment, supported by affidavit, in which he alleged he was a public officer in his capacity as Secretary of the Iowa Board of Pharmacy Examiners, and was immune from suit under the doctrine of judicial immunity. Motion for summary judgment was sustained by trial court and plaintiff appeals.

In his petition, plaintiff alleged defendant Crews, between the dates of October 14, 1969 and October 19, 1969, maliciously conspired with defendant Snyder and arranged for the wrongful and malicious arrest and prosecution of the plaintiff, and further asserts that at the time the arrest without warrant of the plaintiff was made, that the defendants nor any of them had any reasonable grounds or probable cause for making said arrest. In his answer, defendant Crews denies the absence of reasonable grounds and probable cause for making the arrest and further denies he was activated by malice in the conduct of his duties including the arrest and detention of plaintiff.

In ruling upon defendant Crews' motion for summary judgment, the court found Crews, as Secretary of the Iowa Board of Pharmacy Examiners, occupied a position created by section 147.98 of the Code, 1971, and that he was designated as Director of Drug Enforcement under sections 147.95 and 147.99, The Code. The court found that as such secretary and director, defendant Crews is a public officer within the meaning of that term and as defined by this court in State v. Taylor, 260 Iowa 634, 144 N.W.2d 289.

Trial court further found defendant Crews should be granted immunity from suit where he was acting within the scope of his duties and the motion of said defendant for summary judgment was sustained, and as against said defendant plaintiff's petition was dismissed.

Plaintiff advances two errors upon which he relies for reversal: (1) that trial court erroneously held that defendant Crews was a 'public official' and not a 'peace officer', and (2) trial court erroneously extended to defendant Crews judicial immunity from civil suit bottomed on false arrest and malicious prosecution.

I. Insofar as the matter now before us is concerned, we feel whether Crews was a 'public officer' or a 'peace officer' is a distinction without a difference.

Section 147.98, The Code, provides that the Board of Pharmacy Examiners shall have the right to employ a full-time secretary who shall not be a member of the examining board, and at such compensation as may be fixed from time to time by the biannual salary act. Section 147.99 provides the secretary of the pharmacy examiners shall, upon the direction of said examiners, make inspections of alleged violations of the provisions of the act creating the Board of Pharmacy Examiners, and shall be allowed necessary traveling and hotel expenses in making such inspections.

Section 147.95 provides that the practice act insofar as it affects the practice of pharmacy shall be enforced by the Board of Pharmacy Examiners, and that officers, agents, inspectors and representatives of the Board of Pharmacy Examiners shall have all the powers and status of peace officers when enforcing the act.

Section 204A.8, The Code, 1971, is embraced in the statute which is designed to regulate traffic in depressant, stimulant, counterfeit and hallucinogenic drugs. The duties of enforcing the statute are imposed upon the Board of Pharmacy Examiners. Section 204A.8 provides:

'Any officer or employee of the board designated by the secretary of the board to conduct examinations, investigations, or inspections under this chapter relating to depressant, stimulant or counterfeit drugs shall have all the powers of other peace officers and may arrest without warrant for offenses under this chapter committed in his presence, or, in the case of a felony, if he has probable cause to believe that the person arrested has committed or is committing such offense. Such officers and employees shall have the same powers as other peace officers to seize drugs or articles used in the manufacture or sale of drugs which they have reasonable grounds to believe are in violation of this chapter. Such drugs or articles shall be subject to condemnation.'

We agree with trial court defendant Crews was a public officer. This court considered fully the question of the status of one holding a public position in our early case of State v. Spaulding, 102 Iowa 639, 72 N.W. 288, 289. Also, in State v. Taylor, 260 Iowa 634, 144 N.W.2d 289, 292, we said five essential elements are required by most courts to make a public employment a public office, namely: (1) the position must be created by the constitution or legislature, or through authority conferred by the legislature; (2) a portion of the sovereign power of government must be delegated to that position; (3) the duties and powers must be defined directly or impliedly by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law; and (5) the position must have some permanency and continuity and not be only temporary and occasional. See also cases cited in State v. Taylor, Supra.

We note, also, section 748.3, The Code, 1971, defines 'peace officers'. Said section provides:

'The following are 'peace officers':

'1. Sheriffs and their deputies.

'2. Constables.

'3. Marshals and policemen of cities and towns.

'4. All special agents appointed by the commissioner of public safety and all members of the state department of public safety excepting the members of the clerical force.

'5. Such persons as may be otherwise so designated by law.'

Irrespective of the foregoing statute, we hold defendant Crews came within the guidelines laid down in State v. Taylor, Supra, and that as Secretary of the Board of Pharmacy Examiners he is a 'public officer'.

II. Appellant and appellee concede the question as to whether defendant Crews is protected by the cloak of judicial or governmental

immunity is a matter of first impression here. This is virtually correct insofar as the question of governmental immunity pertains to a person who does not occupy a judicial position.

We have had occasion to consider the question of judicial immunity as it applies to judicial officers, particularly, justices of the peace. In Huendling v. Jensen, 168 N.W.2d 745, 749 (Iowa 1969), we have said justices of the peace are immune from civil liability even though they act in excess of their jurisdiction. At page 751 of 168 N.W.2d (in quoting from Bradley v. Fisher, 13 Wall, 335, 347, 80 U.S. 335, 347, 20 L.Ed. 646), this court said:

'For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful.'

We have more recently, in Osbekoff v. Mallory, 188 N.W.2d 294 (Iowa 1971), reiterated our stand that the doctrine of judicial immunity extends to courts of limited jurisdiction, but have also announced the rule that when a minor magistrate acts wholly without jurisdiction, civil liability attaches for his malicious and corrupt abuse of process, and his willful and malicious oppression of any person under the pretense of acting in his official capacity. See Osbekoff v. Mallory, Supra, at page 300 of 188 N.W.2d. We have not, however, extended the doctrine of judicial or governmental immunity to other offices of a nonjudicial character, and decline to do so now.

We have reviewed authorities from other jurisdictions, and find the troublesome question of the extension of judicial or governmental immunity to nonjudicial officers to be obscured by a considerable penumbra. We are aware the federal courts and the courts of sister jurisdictions, notably California, have extended the protection of the doctrine to all sorts of minor...