Wigger v. McKee, 88CA1523

• Decision Date: 07 June 1990
• Docket Number: No. 88CA1523,88CA1523
• Parties: Earl WIGGER and Delores Wigger, Plaintiffs-Appellants, v. Patrice McKEE, Lamar McLeod, Arapahoe County Sheriff's Department, Ruth Wilder, Arapahoe County Department of Social Services, Arapahoe County Board of Social Services, Board of County Commissioners of Arapahoe County, and Arapahoe County, Defendants-Appellees. . II
• Court: Colorado Court of Appeals

Page 999

809 P.2d 999

Earl WIGGER and Delores Wigger, Plaintiffs-Appellants, v. Patrice McKEE, Lamar McLeod, Arapahoe County Sheriff's

Department, Ruth Wilder, Arapahoe County Department of

Social Services, Arapahoe County Board of Social Services,

Board of County Commissioners of Arapahoe County, and

Arapahoe County, Defendants-Appellees.

No. 88CA1523.

Colorado Court of Appeals,

Div. II.

June 7, 1990.

Rehearing Denied July 5, 1990.

Certiorari Denied April 15, 1991.

Long & Jaudon, P.C., Michael T. McConnell, Elizabeth A. McCarville, Denver, for plaintiffs-appellants.

Wood, Ris & Hames, P.C., Christian M. Lind, Denver, for defendant-appellee Patrice McKee.

Stern & Heiser, James E. Heiser, Denver, for defendants-appellees Lamar McLeod, Arapahoe County Sheriff's Dept., Ruth Wilder, Arapahoe County Dept. of Social Services, Arapahoe County Bd. of Social Services, Board of County Com'rs of Arapahoe County, and Arapahoe County.

Opinion by Judge DAVIDSON.

In this action, based on Earl Wigger's allegedly wrongful prosecution, plaintiffs, Earl and Delores Wigger, appeal the summary judgment granted in favor of defendants, Arapahoe County, the Board of County Commissioners of Arapahoe County, the Arapahoe County Sheriff's Department, the Arapahoe County Department of Social Services, and Lamar McLeod, Ruth Wilder and Patrice McKee, in their official and individual capacities. We affirm.

In the summer of 1985, a Mr. and Mrs. F. engaged Delores Wigger to provide daycare for their three small children, aged 4, 3 and 1, in the Wiggers' home. Because of the nature of his work, Delores' husband, Earl Wigger (Wigger), was often present. On a Saturday afternoon, after Delores had looked after the children for less than three weeks, Mrs. F. noticed that the three- and four-year old girls had reddened genitals. Mrs. F. became concerned, and, as she recalled in a deposition for the present case, she initiated the following exchange: "My goodness, your bottoms are red, has something happened?" When the girls did not respond, Mrs. F. asked, "Has somebody pulled your panties down?" One or both of the girls nodded. "Who pulled your pants down?" "Jenny's daddy [Mr. Wigger]," responded one of the girls. "Did he pull his pants down, too?" Again, one or both girls indicated, "Yes."

Mrs. F. then tried to contact, among others, Patrice McKee (a social worker with whom she had consulted once before) and the Arapahoe County Department of Social Services. On the advice of the department, she took the children for an immediate physical exam, which indicated no clear evidence of sexual abuse.

Three days later, Lamar McLeod, an investigator with the Arapahoe County Sheriff's Department, and Ruth Wilder, a social worker with the Arapahoe County Department of Social Services, together interviewed each of the girls. The girls independently indicated sexual touching by Wigger but were not terribly communicative. While believing that "something had happened" on the basis of their interviews, McLeod and Wilder thought that further investigation was needed before charges would be warranted.

The following weekend, Patrice McKee also interviewed the girls, who, through the use of both anatomical dolls and speech, independently gave similar reports of sexual fondling by Wigger. Pursuant to § 19-10-104(1) C.R.S. (1986 Repl.Vol. 8B), McKee sent a summary of the interviews to McLeod.

Ultimately, McLeod presented a case filing concerning the complaints against Wigger to the district attorney, who independently decided to prosecute Wigger on two counts of sexual assault on a child. After trial, Wigger was acquitted.

Alleging that Wigger had been wrongfully prosecuted and that, as a result, both he and his wife had suffered extensive economic damages for attorney and investigation fees, loss of earnings and loss of reputation, as well as emotional distress, pain and suffering, and other damages, the Wiggers filed the present civil action. They set forth nine claims for relief, including violation of their Fourth and Fourteenth Amendment rights, enforceable pursuant to 42 U.S.C. § 1983 (1982); malicious prosecution; negligence; outrageous conduct; and defamation.

Concluding that no disputed issues of material fact were presented by the record, the trial court granted summary judgment in favor of defendants on all claims.

I.

The plaintiffs first contend that the trial court erred in granting summary judgment for all defendants under their claim for damages under 42 U.S.C. § 1983 alleging deprivation of their constitutional rights to be free from prosecution absent probable cause. We disagree.

A.

As a threshold issue, we must determine whether the recent United States Supreme Court's decision in Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) requires dismissal of the claims brought under 42 U.S.C. § 1983 against any of the government defendants. In Will, the Supreme Court held that states are not "persons" under 42 U.S.C. § 1983 and cannot, therefore, be sued under the statute. Here, Arapahoe County, the Board of County Commissioners of Arapahoe County, the Arapahoe County Department of Social Services, the Arapahoe County Sheriff's Department, and Ruth Wilder, Lamar McLeod, and Patrice McKee in their official capacities arguably could be mere arms of the state, in which case the holding in Will would deprive the courts of subject matter jurisdiction over them with respect to § 1983 actions. We conclude that Will does require the dismissal of the § 1983 claims against the Arapahoe County Department of Social Services and Ruth Wilder and Patrice McKee in their official capacities as employees or consultants to this department, but that it does not affect the others.

The holding in Will is premised on the principle of statutory construction there stated that "if Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.' " That "usual balance" is embodied in the Eleventh Amendment, which provides that the states are immune from suit in federal courts by citizens of the several states or of foreign countries. Because the language of 42 U.S.C. § 1983 does not manifest an intention to disturb the States' Eleventh Amendment immunity, the court concluded that neither a state nor its officials acting in their official capacities are "persons" subject to suit under the statute.

However, the court left intact its previous decision in Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell established that "local government units which are not part of the States for Eleventh Amendment purposes" are "persons" under § 1983. Hence, Will excludes from § 1983 coverage only the "States or governmental entities that are considered 'arms of the State' for Eleventh Amendment purposes." Will v. Michigan Department of Social Services, supra.

Whether a governmental entity is an "arm of the state" is determined by balancing the entity's independent powers with those entirely dependent on the state. See Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

If the entity is the state's alter ego, dependent entirely on the state for the funds and resources to respond to a suit for damages, it is equivalent to the state. State Highway Commission v. Utah Construction Co., 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1929); see Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); see also Mt. Healthy City Board of Education v. Doyle, supra; Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973).

On the other hand, counties and municipal corporations that are defined as "bodies corporate and politic" and have even limited power to sue and be sued in their own names are not the state for purposes of the Eleventh Amendment, even though they are political subdivisions of the state. See Mt. Healthy City Board of Education v. Doyle, supra; Moor v. County of Alameda, supra; Mosier v. Robinson, 722 F.Supp 555 (W.D.Ark.1989); see also Will v. Department of State Police, supra (at time § 1983 was enacted, the term "body politic" was most appropriately applied to a public corporation, which included "towns, cites, and counties, but not states").

In Colorado, a county is defined as "a body corporate and politic" and has the power to sue and be sued, to enter into contracts, and to levy certain taxes. Section 30-11-101, C.R.S. (1986 Repl.Vol. 12A). Therefore, it is not the alter ego of the state for Eleventh Amendment purposes and is a "person" under 42 U.S.C. § 1983.

Our supreme court's holdings that a county is a political subdivision of the state and is not a "person" under certain state statutes, see, e.g., Board of County Commissioners v. Love, 172 Colo. 121, 470 P.2d 861 (1970), do not affect this result. Such holdings involve neither the Eleventh Amendment nor 42 U.S.C. § 1983, and the United States Supreme Court has noted that it has "consistently refused to construe the Amendment to afford political protection to political subdivisions such as counties and municipalities, even though such entities exercise a 'slice of state power'." Lake County Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979).

Therefore, Arapahoe County, sued properly in the name of The Board of County Commissioners of Arapahoe County, see § 30-11-105, C.R.S. (1986 Repl.Vol. 12A), is a person under 42 U.S.C. § 1983, and the suit against it may not be dismissed for lack of jurisdiction. Accord Mosier v. Robinson, 722 F.Supp. 555 (W.D.Ark.1989).

The Arapahoe County Sheriff's Department likewise qualifies as a "person" under the statute. Rather than being appointed by the state, a county sheriff is elected by the citizens of the...