question of whether public official abused qualified privilege not appropriate for summary disposition
How later courts described this case
- question of whether public official abused qualified privilege not appropriate for summary disposition
- accusations of want of professional capacity are actionable per se
Written by the judges who cited it.
The opinion
FOSHEIM, Retired Justice
(dissenting).
The majority opinion appropriately relies on Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981), for the proposition that school *815 districts, as state agencies, enjoy sovereign immunity from tort liability absent an express consent from the legislature. In that case, immunity was also extended to teachers Birhanzel and Biehl since they were acting within their official authority.
On the issue of the school employees liability, the majority then seemingly repudiates the very language it quoted with approval concerning the liability of the school district. “A school district officer in the performance of his duties acts in a political capacity, as much so as the Governor of a state, and is not liable for negligent acts of omission occurring in the performance of such political or public duties, unless the sovereign power of the state has authorized and consented to a suit for such negligence.” That quote simply reaffirms the time-honored rule that immunity applies to an employee acting within the scope of his employment. As in Birhanzel , Peterson and Aman were employees of the school district.
The majority, however, in their zeal to fashion a cause of action for negligence simply excludes ministerial acts from the scope of employment immunity. In other words, by following the rationale of National Bank and Kruger the majority circumvents by judicial fiat the exclusive constitutional prerogative of the legislature to make inroads into the sovereign immunity doctrine.