Weatherford ex rel. Michael L. v. State

• Decision Date: 17 December 2003
• Docket Number: No. CV-02-0369-PR.,CV-02-0369-PR.
• Parties: Cheryl WEATHERFORD, as guardian ad litem for MICHAEL L., a minor, Plaintiff-Appellant, v. STATE of Arizona; Claudette Washington, individually and in her capacity as an employee of the State of Arizona; Shirley Lewis, individually and in her capacity as an employee of the State of Arizona; Parthenia Gibson, individually and in her capacity as an employee of the State of Arizona, Defendants-Appellees. Michael L., a minor, by and through his guardian Cheryl Weatherford, Plaintiff-Appellee, v. State of Arizona, Defendant-Appellant.
• Court: Arizona Supreme Court

81 P.3d 320

206 Ariz. 529

Cheryl WEATHERFORD, as guardian ad litem for MICHAEL L., a minor, Plaintiff-Appellant, v. STATE of Arizona; Claudette Washington, individually and in her capacity as an employee of the State of Arizona; Shirley Lewis, individually and in her capacity as an employee of the State of Arizona; Parthenia Gibson, individually and in her capacity as an employee of the State of Arizona, Defendants-Appellees.

Michael L., a minor, by and through his guardian Cheryl Weatherford, Plaintiff-Appellee, v. State of Arizona, Defendant-Appellant.

No. CV-02-0369-PR.

Supreme Court of Arizona, En Banc.

December 17, 2003.

Laurence M. Berlin, Tucson, Attorney for Cheryl Weatherford.

Terry Goddard, Attorney General by Paula S. Bickett, Chief Counsel, Civil Appeals Section, Assistant Attorney General, Phoenix, Attorneys for Parthenia Gibson, Claudette Washington, Shirley Lewis, and the State of Arizona.

Martin, Hart & Fullerton by James R. Hart, II, Mesa, Attorneys for Parthenia Gibson.

Wilenchik & Bartness, PC by Dennis I. Wilenchik, Phoenix, Attorneys for Claudette Washington and Shirley Lewis.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 This case requires us to determine whether and under what circumstances a child placed in a foster care facility may bring an action based upon 42 U.S.C. § 1983 (2003) against individual state workers for violating the foster child's substantive due process rights under the United States Constitution. We exercise jurisdiction pursuant to Article VI, Section 5.3 of the Arizona Constitution, Arizona Revised Statutes (A.R.S.) § 12-120.24 (2003), and Rule 23 of the Arizona Rules of Civil Appellate Procedure.

I.

A.

¶ 2 This case arises out of the alleged sexual assault of twelve-year-old Michael L. by two minors held at the Alice Peterson Shelter (the Shelter), a foster care facility. The assaults reportedly occurred over the course of four months in 1996 and 1997, after Claudette Washington, Michael's intake social worker, had arranged for Michael's placement at the Shelter following his removal from his home because of unsanitary conditions. In mid-December 1996, Parthenia Gibson became Michael's social worker. Shirley Lewis supervised both Washington and Gibson throughout Michael's placement at the Shelter.

¶ 3 Cheryl Weatherford, acting as Michael's guardian ad litem, sued the State of Arizona, Washington, Gibson, and Lewis for negligence and for depriving Michael of his constitutional rights, in violation of § 1983. During summary judgment proceedings, Washington, Gibson, and Lewis did not dispute that, acting in their capacity as social workers, they failed to comply with various agency requirements, including failures to timely complete an initial case plan, to assess Michael's needs and his compatibility with other Shelter residents, and to visit the Shelter within twenty-four hours of Michael's placement. In addition, they did not dispute that they made only two of the sixteen required weekly supervised visits to the Shelter between November 14, 1996, and the disclosure of the alleged sexual abuse on March 4, 1997.

¶ 4 The superior court nonetheless granted summary judgment in favor of each of the defendants based upon qualified immunity, 42 U.S.C. § 1983, and protective services immunity, A.R.S. § 8-805.A (2001). The court of appeals reversed the order dismissing Weatherford's negligence and § 1983 claims. Weatherford v. State, 203 Ariz. 313, 320 ¶ 31, 54 P.3d 342, 349 (App.2002). The court held that a foster child's right to reasonable safety while in foster care was clearly established in 1996 and that a social worker's failure to exercise professional judgment in the placement and monitoring of a child in state foster care may subject the social worker to individual liability under § 1983. Id. at 319-20 ¶¶ 29-30, 54 P.3d at 348-49.¹

B.

¶ 5 Section 1983 imposes liability on one who, under color of law, deprives a person of any "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Government officials performing discretionary functions, however, receive qualified immunity from § 1983 actions unless their conduct violated a clearly established constitutional or federal statutory right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

¶ 6 To overcome the social workers' qualified immunity defense, Weatherford bears the initial burden of proving a violation of a clearly established constitutional or statutory right. A right is "clearly established" when "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Establishing liability requires more than alleging a "violation of extremely abstract rights." Id. at 639, 107 S.Ct. 3034. An official's specific action, however, need not previously have been held unlawful. Id. at 640, 107 S.Ct. 3034. Rather, the unlawfulness must be apparent in light of preexisting law. Id. If Weatherford is able to show a violation of Michael's clearly established constitutional right, then the social workers must demonstrate that their conduct was reasonable under the applicable standard of care. See, e.g., Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991)

.

¶ 7 At oral argument, the social workers conceded that a foster child's substantive due process right to reasonable safety while in foster care was clearly established in 1996.² As a result, the issue before this court is whether the social workers' conduct, viewed in the light most favorable to Weatherford, could subject them to individual liability under § 1983. Determining the appropriate standard by which to measure the challenged conduct presents a question of substantive federal law. Martinez v. California, 444 U.S. 277, 284 n. 8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980).

C.

¶ 8 In interpreting substantive federal law, state courts look first to decisions of the United States Supreme Court. Although only a decision of the Supreme Court binds a state court on a substantive federal issue, a number of state supreme courts have elected to follow, as far as reasonably possible, their federal circuits' decisions on questions of substantive federal law. See Littlefield v. Dep't of Human Servs., 480 A.2d 731, 737 (Me.1984)

; Phillips v. Williams, 608 P.2d 1131, 1135 (Okla.1980); York v. Gaasland Co., 41 Wash.2d 540, 250 P.2d 967, 971 (1952); see also Busch v. Graphic Color Corp., 169 Ill.2d 325, 214 Ill.Dec. 831, 662 N.E.2d 397, 403 (1996) ("[D]ecisions of the Federal courts interpreting a Federal act ... are controlling upon Illinois courts."). In Littlefield, for example, the Maine Supreme Court considered the proper construction of eligibility requirements under the federal Social Security Act. Noting that the First Circuit had recently decided the exact issue before the court in Sweeney v. Murray, 732 F.2d 1022 (1st Cir.1984), the Maine court chose to follow its circuit's precedent. The court stated:

[E]ven though only a decision of the Supreme Court of the United States is the supreme law of the land on a federal issue, nevertheless, in the interests of existing harmonious federal-state relationships, it is a wise policy that a state court of last resort accept, so far as reasonably possible, a decision of its federal circuit court on such a federal question.

Littlefield, 480 A.2d at 737; see also Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670, 672 (1965)

("[T]he clear indication for this Court is to accept and follow the decision of the Third Circuit on this matter until some further word is spoken by the Supreme Court of the United States.").

¶ 9 We agree that, although state courts are not bound by decisions of federal circuit courts, we may choose to follow substantive decisions of the Ninth Circuit Court of Appeals, recognizing that doing so furthers federal-state court relationships. In addition, consistent decisions among federal and state courts further predictability and stability of the law. Therefore, if the Ninth Circuit has announced a clear rule on an issue of substantive federal statutory law and if the rule appears just, we will look first to the Ninth Circuit rule in interpreting substantive federal statutory law.

II.

¶ 10 The gravamen of Weatherford's § 1983 complaint is the claim that the social workers violated Michael's substantive due process rights. In determining the appropriate standard for imposing § 1983 liability, we first acknowledge that standards of state tort law do not apply; rather, the question is whether defendants violated Michael's federal constitutional rights. "Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

¶ 11 The touchstone of substantive due process is protection against government power arbitrarily and oppressively exercised. Id. at 331-32, 106 S.Ct. 662; see also County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)

. Thus, the Due Process Clause is "intended to prevent government officials from abusing their power or employing it as an instrument of oppression." Sacramento,

523 U.S. at 846,

118 S.Ct. 1708 (citations and quotations omitted). When, as here, a plaintiff alleges he incurred damage from abusive executive conduct, the conduct must be said to be "arbitrary in the constitutional sense" to implicate the Due Process Clause.³

Id. (quoting Collins v. City of Harker Heights, 503 U.S. 115, 129, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)).

¶ 12 Neither the Supreme Court nor the Ninth Circuit has clearly defined when executive...