recognizing medical practice licenses as a legitimate private property interest
How later courts described this case
- recognizing medical practice licenses as a legitimate private property interest
- internal quotation marks omitted (quoting Monroe v. Pape, 365 U.S. 167, 184, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), overruled on other grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOSEPH ERIC JANASZAK DDS, ) NO. 67749-7-I
a single person, )
) DIVISION ONE
Appellant, )
)
v. ) ORDER GRANTING MOTION
) TO PUBLISH OPINION
THE STATE OF WASHINGTON; THE )
WASHINGTON STATE DEPARTMENT )
OF HEALTH, an agent of the State )
of Washington; MARY SELECKY, )
Secretary, Department of Health, )
in her official capacity; THE HEALTH )
PROFESSIONS QUALITY )
ASSURANCE COMMISSION, an )
agent of the State of Washington and )
the Washington State Department of )
Health; and the WASHINGTON STATE )
DENTAL QUALITY ASSURANCE )
COMMISSION, an agent of the State )
of Washington and the Washington )
State Department of Health; JOHN )
DAVIS DDS, member, Washington )
State Department of Health, Dental )
Quality Assurance Commission, in )
his individual and official capacities; )
KIRBY PUTSCHER, Deputy Executive )
Director, Department of Health Dental )
Quality Assurance Commission, in her )
official and individual capacities; )
LORIN PETERSON DDS, member, )
Department of Health, Dental Quality )
Assurance Commission, in his official )
and individual capacities; PRAMOD )
SINHA DDS, member, Department of )
Health, Dental Quality Assurance )
Commission, in his official and )
individual capacities; ROBERT FAINE )
NO. 67749-7-I / 2
DDS, member, Department of Health,
)
Dental Quality Assurance Commission,
)
in his official and individual capacities;
)
JANE AND JOHN DOE, members of )
the Department of Health, Dental )
Quality Assurance Commission, in )
their official and individual capacities;
)
CHYMA MILLER SMITH, Investigator,)
Department of Health, in her official
)
and in her individual capacity, )
)
Respondents . )
________________________________)
The respondent, State of Washington, having filed a motion to publish
opinion, and the appellant, Joseph Janaszak, having filed an answer to the
motion, and a majority of the hearing panel having reconsidered its prior
determination and finding that the opinion will be of precedential value; now,
therefore it is hereby:
ORDERED that the unpublished opinion filed January 7, 2013, shall be
published and printed in the Washington Appellate Reports.
Done this _____ day of _________________, 2013.
FOR THE COURT:
Judge
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
-2-
NO. 67749-7-I / 3
JOSEPH ERIC JANASZAK DDS, ) NO. 67749-7-I
a single person, )
) DIVISION ONE
Appellant, )
)
v. )
) UNPUBLISHED OPINION
THE STATE OF WASHINGTON; THE )
WASHINGTON STATE DEPARTMENT )
OF HEALTH, an agent of the State )
of Washington; MARY SELECKY, ) FILED: January 7, 2013
Secretary, Department of Health, )
in her official capacity; THE HEALTH )
PROFESSIONS QUALITY )
ASSURANCE COMMISSION, an )
agent of the State of Washington and )
the Washington State Department of )
Health; and the WASHINGTON STATE )
DENTAL QUALITY ASSURANCE )
COMMISSION, an agent of the State )
of Washington and the Washington )
State Department of Health; JOHN )
DAVIS DDS, member, Washington )
State Department of Health, Dental )
Quality Assurance Commission, in )
his individual and official capacities; )
KIRBY PUTSCHER, Deputy Executive )
Director, Department of Health Dental )
Quality Assurance Commission, in her )
official and individual capacities; )
LORIN PETERSON DDS, member, )
Department of Health, Dental Quality )
Assurance Commission, in his official )
and individual capacities; PRAMOD )
SINHA DDS, member, Department of )
Health, Dental Quality Assurance )
Commission, in his official and )
individual capacities; ROBERT FAINE )
DDS, member, Department of Health, )
Dental Quality Assurance Commission, )
in his official and individual capacities; )
JANE AND JOHN DOE, members of )
-3-
NO. 67749-7-I / 4
the Department of Health, Dental )
Quality Assurance Commission, in )
their official and individual capacities;
)
CHYMA MILLER SMITH, Investigator,)
Department of Health, in her official
)
and in her individual capacity, )
)
Respondents . )
________________________________)
LEACH, C.J. — Dr. Eric Janaszak appeals the trial court’s summary
dismissal of his lawsuit against the State of Washington, the Washington
Department of Health, and other state officials and employees. His complaint
alleged negligent and intentional misconduct relating to the investigation and
temporary summary restriction of his dental license. Because the respondents
have immunity, either absolute or qualified, against many of Janaszak’s claims
and he cannot establish the necessary elements of his remaining claims, we
affirm.
FACTS
In early 2006, two female patients filed complaints with the Department of
Health, accusing Dr. Eric Janaszak of professional misconduct. They alleged
that he pursued sexual relationships with them while they were his patients,
initiated sexual encounters with them during scheduled appointments, billed them
for dental services not actually performed during those appointments, and sent
one patient’s account to collections when she refused to pay.
-4-
NO. 67749-7-I / 5
After the Washington Dental Quality Assurance Commission
(Commission) authorized an investigation, Washington Department of Health
(Department) investigator Chyma Miller-Smith conducted one. Over the next
eight months, Miller-Smith interviewed the complainants, as well as Dr.
Janaszak, his office manager, his dental assistant, and other potential witnesses.
In September 2006, Miller-Smith submitted a report to the Department. She did
not make any disciplinary recommendation to the Commission and played no
role in the Commission’s disciplinary decision-making process.
After reviewing Miller-Smith’s report, the Department filed an ex parte
motion with the Commission, seeking an order prohibiting Janaszak from treating
adult female patients pending further disciplinary proceedings. The Commission
instead prohibited Janaszak from treating female patients aged 12 and older. It
published notice of the disciplinary action on the Department’s web site. Soon
afterward, the Commission assigned Miller-Smith to investigate a third complaint
made against Janaszak by a former employee who also alleged sexual
misconduct. Meanwhile, after being deposed, the original two complainants
stopped cooperating with the disciplinary proceedings. The Commission
withdrew the summary practice restrictions and charges against Janaszak.
Janaszak sued the State of Washington, the Department, the Secretary of
Health, the Health Professions Quality Assurance Commission, and the
-5-
NO. 67749-7-I / 6
Commission. He also sued five members of the Commission and Miller-Smith,
each in their personal and professional capacities.1 He asserted federal and
state constitutional claims, a state statutory violation, and multiple common law
claims. The trial court granted the State’s motion for summary judgment and
dismissed all claims. Janaszak appeals.
STANDARD OF REVIEW
This court reviews summary judgment orders de novo, engaging in the
same inquiry as the trial court.2 Summary judgment is proper if, viewing the facts
and reasonable inferences in the light most favorable to the nonmoving party, no
genuine issues of material fact exist and the moving party is entitled to judgment
as a matter of law.3 A genuine issue of material fact exists if reasonable minds
could differ regarding the facts controlling the outcome of the litigation.4
A defendant moving for summary judgment may meet his burden by
showing an absence of evidence to support the nonmoving party’s case.5 If the
defendant makes this initial showing, the inquiry shifts to the party with the
1
Collectively, this opinion refers to respondents as the State. Where an
issue relates only to a single party, it refers to that party by name or title.
2
Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22
(2003).
3
CR 56(c); Michak, 148 Wn.2d at 794-95.
4
Hulbert v. Port of Everett, 159 Wn. App. 389, 398, 245 P.3d 779, review
denied, 171 Wn.2d 1024, 257 P.3d 662 (2011).
5
Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 624,
818 P.2d 1056 (1991).
-6-
NO. 67749-7-I / 7
burden of proof at trial, the plaintiff.6 If the plaintiff fails to make a showing
sufficient to establish the existence of an element essential to that party’s case,
the trial court should grant the motion for summary judgment.7
ANALYSIS
Janaszak asserted claims under 42 U.S.C. § 1983 for alleged violations of
his rights under the First, Fourth, and Fourteenth Amendments to the United
States Constitution. He also asserted claims based upon alleged violations of
article I, sections 3, 5, and 7 of the Washington Constitution and RCW
18.130.080. Finally, he asserted common law claims for defamation/false light,
intentional interference with a business expectancy, negligent investigation,
negligence, outrage, and negligent infliction of emotional distress. The
respondents claim immunity against many of these claims and the absence of
any evidence to support at least one essential element of each other claim. We
agree.
This case presents several issues about the State’s immunity from
lawsuits. Immunity is not merely a defense to liability, but “an ‘entitlement not to
stand trial or face the other burdens of litigation.’”8 Because the respondents rely
6
Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
7
Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992)
(quoting Young, 112 Wn.2d at 225).
8
Feis v. King County Sheriff’s Dep’t, 165 Wn. App. 525, 538, 267 P.3d
1022 (2011) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86
L. Ed. 2d 411 (1985)), review denied, 173 Wn.2d 1036, 277 P.3d 669 (2012).
-7-
NO. 67749-7-I / 8
upon both the common law and statutes to support their immunity claims, we
begin with a brief overview of the guiding laws and principles.
The Scope of Sovereign Immunity in Washington
“At common law, the State was immune from lawsuit.”9 The Washington
State Constitution requires that the legislature determine when and where the
State may be sued.10 In 1963, our legislature largely waived the State’s immunity
from tort claims. RCW 4.92.090 provides, “The state of Washington, whether
acting in its governmental or proprietary capacity, shall be liable for damages
arising out of its tortious conduct to the same extent as if it were a private person
or corporation.” RCW 4.96.010 makes similar provisions for suit against
municipalities and other subdivisions of the state.11
While the courts construe this legislative waiver of sovereign immunity
broadly,12 common law immunities, both absolute and qualified, still exist.
Absolute immunity protects an entity completely against suit, while qualified
9
Linville v. State, 137 Wn. App. 201, 208, 151 P.3d 1073 (2007).
10
W ASH. CONST. art. II, § 26 (“The legislature shall direct by law, in what
manner, and in what courts, suits may be brought against the state.”).
11
The legislature has created numerous exceptions providing statutory
immunity for a variety of government actors and actions. See, e.g., RCW
10.99.070 (immunizing peace officers for arrests or other actions arising from
domestic violence incidents); RCW 71.05.120 (exempting officials from liability in
decisions relating to the treatment and care of mentally ill patients); RCW
86.12.037 (providing immunity for city and county officials working to improve or
control flood prevention measures).
12
Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246,
252, 407 P.2d 440 (1965).
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NO. 67749-7-I / 9
immunity can be lost if it is abused.13 Courts generally confine absolute privilege
to those circumstances where public service and the administration of justice
require complete immunity.14
Courts look to the function being performed, instead of the person who
performed it, to determine if immunity applies.15 The application of judicial
immunity illustrates this approach. At common law, judges have absolute
immunity for acts performed within their judicial capacity.16 This immunity does
not exist for the benefit of the judge; rather, it protects the administration of
justice by ensuring that judges can decide cases without fear of personal
lawsuits.17 Thus, the immunity only applies when a judge acts in a judicial
capacity with color of jurisdiction.18
Respondents Are Immune from Janaszak’s Claims under the Uniform
Disciplinary Act
Janaszak contends that the State failed to comply with mandatory
procedures for disciplinary investigations conducted under RCW 18.130.080.
This statute is part of the Uniform Disciplinary Act (UDA), chapter 18.130 RCW,
which provides standardized procedures for the enforcement of laws for licensed
13
Bender v. City of Seattle, 99 Wn.2d 582, 600, 664 P.2d 492 (1983); see
also Lallas v. Skagit County, 167 Wn.2d 861, 864-65, 225 P.3d 910 (2009).
14
Bender, 99 Wn.2d at 600.
15
Lallas, 167 Wn.2d at 865.
16
Lallas, 167 Wn.2d at 864.
17
Taggart v. State, 118 Wn.2d 195, 203, 822 P.2d 243 (1992).
18
Lallas, 167 Wn.2d at 865.
-9-
NO. 67749-7-I / 10
health and health-related professionals.19 The respondents assert statutory and
common law quasi-judicial immunity against this claim. We agree that the
respondents have statutory immunity.
The UDA includes a grant of statutory immunity for officials carrying out
their duties under the act. RCW 18.130.300(1) provides, “The secretary,
members of the boards or commissions, or individuals acting on their behalf are
immune from suit in any action, civil or criminal, based on any disciplinary
proceedings or other official acts performed in the course of their duties.” On its
face, this statute grants absolute immunity for acts performed in the course of a
covered individual’s duties. Additionally, RCW 18.32.0357 addresses the duties
and powers of the Dental Quality Assurance Commission and states that “[t]he
members of the commission are immune from suit in an action, civil or criminal,
based upon its disciplinary proceedings or other official acts performed in good
faith as members of the commission.” This statute grants a qualified immunity.
Janaszak argues that statutory immunity does not bar his claim because
Miller-Smith acted outside the scope of her official duties and did not follow
Department procedures in conducting her investigation and because the
Commission and its members did not act in good faith. We disagree.
19
RCW 18.130.010.
-10-
NO. 67749-7-I / 11
Janaszak asserts that RCW 18.130.300 does not immunize respondents
because Miller-Smith exceeded the scope of her duties when she investigated
him without the Commission’s prior approval. The record on appeal does not
support this assertion. Miller-Smith received the Commission’s authorization to
investigate the first complaint, and her investigation quickly revealed a second
potential victim. He argues that Miller-Smith showed bias and bad faith by
speaking with this second patient before the Commission had authorized an
investigation of her complaint. These two women were involved in intimate
relationships with the same man at the same time, and Miller-Smith was
investigating the propriety of one of those relationships. Thus, Miller-Smith could
interview the second complainant as part of her investigation of the first
complaint. For the same reasons, she could interview the third complaining
witness as part of her investigation of the first complaint. Her interviews did not
exceed the scope of her duties.
Janaszak next complains that Miller-Smith colluded with the complainants
to falsely accuse him of misconduct. He points to the fact that Miller-Smith did
not require the complainants to produce their phone records and that she
corresponded with them by e-mail to keep them updated on the status of the
case. He also complains about the role Miller-Smith played in drafting the
patients’ complaints. Further, he claims that Miller-Smith forced a third
-11-
NO. 67749-7-I / 12
complainant to file a complaint. Although the record contains one e-mail from
Miller-Smith’s colleague, questioning whether the third woman had agreed to file
her own complaint or simply offered to be a witness in the ongoing investigations,
the record contains no evidence that directly or by reasonable inference supports
Janaszak’s claim.
While Janaszak may disapprove of how Miller-Smith conducted her
investigation, he presents no genuine issue that her actions exceeded the scope
of her duties as an investigator for the Department of Health. RCW 18.130.300
bars Janaszak’s claims for violation of the UDA.
RCW 18.32.0357 provides Commission members with additional
immunity. Janaszak asserts RCW 18.32.0357 does not immunize the
Commission or its members because they did not act in good faith. He contends
that the Commission’s failure to restrict his dental license immediately upon
receiving a complaint provides evidence of its bad faith. Again, we disagree.
“‘The standard definition of good faith is a state of mind indicating honesty
and lawfulness of purpose.’”20 A plaintiff alleging that a defendant has lost
qualified immunity by acting in bad faith fails to raise a genuine issue of material
fact by showing only that the defendant acted negligently.21 Where reasonable
20
Deschamps v. Mason County Sheriff’s Office, 123 Wn. App. 551, 559,
96 P.3d 413 (2004) (quoting Whaley v. State, 90 Wn. App. 658, 669, 956 P.2d
1100 (1998)).
21
Deschamps, 123 Wn. App. at 559.
-12-
NO. 67749-7-I / 13
minds could not differ on the issue of good faith, this question of fact may be
resolved on summary judgment.22
WAC 246-10-301 describes when the Commission may summarily restrict
dental practitioners:
Summary action may be taken only after a review by the secretary
or designee of such evidence, including affidavits, if appropriate, to
establish:
(a) The existence of an immediate danger to the public health,
safety, or welfare;
(b) The department’s ability to address the danger through a
summary action; and
(c) The summary action necessary to address the danger.
Here, the Commission waited until it had a complete report before taking action
to limit Janaszak’s license to practice dentistry. Once the fruits of Miller-Smith’s
investigation provided the Department with evidence—as opposed to
accusations—that Janaszak posed an immediate danger to his patients, it
responded accordingly and, acting through the assistant attorney general, filed
an ex parte motion to restrict his access to female patients.
To determine the existence of any genuine issue of fact about the
Commission’s immunity, we ask if the record includes any evidence showing the
absence of a state of mind indicating honesty and lawfulness of purpose. It does
not. Janaszak argues that the delay, but not the factual basis for the restriction,
22
Marthaller v. King County Hosp. Dist. No. 2, 94 Wn. App. 911, 916, 973
P.2d 1098 (1999) (citing Dutton v. Wash. Physicians Health Program, 87 Wn.
App. 614, 622, 943 P.2d 298 (1997)).
-13-
NO. 67749-7-I / 14
evidences the Commission’s bad faith. A mere delay in taking what Janaszak
concedes by implication was reasonable if done promptly provides no evidence
of dishonesty or unlawfulness of purpose.
Janaszak also contends that the Commission acted arbitrarily by imposing
a harsher restriction than the attorney general requested because the
Department provided no evidence that Janaszak had sex with any patients under
the age of 18. This is irrelevant. The Commission found that Janaszak had a
pattern of engaging in sexual relationships with female patients and that he
showed poor boundaries with those patients. Under the circumstances, the
Commission’s restriction of Janaszak from treating any female patients over 12
years of age also provides no evidence of dishonesty or unlawfulness of
purpose.
Because Miller-Smith acted within the scope of her duties under the UDA,
RCW 18.130.300 protects respondents from Janaszak’s claims based upon
violations of the UDA. Because the Commission’s members acted in good faith
in the conduct of their statutory duties, RCW 18.32.0357 provides them immunity
as well.
Janaszak argues that even if the individual actors are entitled to immunity,
because neither RCW 18.130.300 nor RCW 18.32.0357 expressly grants
immunity to the State or the Department, both should still be liable. He claims
-14-
NO. 67749-7-I / 15
that our Supreme Court’s decision in Savage v. State23 indicates that a
government official’s personal immunity cannot transfer to the State. Janaszak
reads Savage too broadly. In Savage, the court expressly cautioned against the
application of an immunity decision in one context to another without an analysis
of the policies implicated in each context.24 An analysis of the circumstances in
which the immunities provided by RCW 18.130.300 and RCW 18.32.0357
operate demonstrates that these immunities should extend to the State and the
Department.
With the UDA, the legislature intended to provide “a uniform disciplinary
act with standardized procedures for the licensure of health care professionals
and the enforcement of laws the purpose of which is to assure the public of the
adequacy of professional competence and conduct in the healing arts.”25 The
legislature authorized the secretary to employ investigative, administrative, and
clerical staff to enforce the act.26 It granted the Commission enforcement
authority under the UDA for dental licensees. In this context, the legislature
provided absolute immunity for the secretary of health, members of the
commissions, and individuals acting on their behalf for official acts performed by
any of these individuals in the course of their duties under the act. 27 In the
23
127 Wn.2d 434, 899 P.2d 1270 (1995).
24
Savage, 127 Wn.2d at 442.
25
RCW 18.130.010.
26
RCW 18.130.060(1).
27
RCW 18.130.300.
-15-
NO. 67749-7-I / 16
performance of these duties, the immunized individuals perform duties analogous
to those of prosecutors and judicial officers. Therefore, those cases addressing
the extension of prosecutorial and judicial immunity provide guidance.
The common law, as a matter of public policy, accords prosecuting
attorneys absolute immunity for acts done in their official capacity.28 This
immunity is not provided to protect the individual official “but for the protection of
the public and to insure active and independent action of the officers charged
with the prosecution of crime, for the protection of life and property.”29 The
Washington Supreme Court has concluded that this same public policy requires
that this immunity be extended to the State and the entity employing the
prosecutor.30
Similarly, the common law also accords judges absolute immunity for acts
performed within their judicial capacity.31 As with prosecuting attorneys, this
immunity does not exist for the benefit of the individual judge “but exists to
protect the administration of justice by ensuring that judges can decide cases
without fear of personal lawsuits.”32 The Washington Supreme Court has
28
Creelman v. Svenning, 67 Wn.2d 882, 884-85, 410 P.2d 606 (1966).
29
Creelman, 67 Wn.2d at 884 (quoting Anderson v. Manley, 181 Wash.
327, 331, 43 P.2d 39 (1935)).
30
Creelman, 67 Wn.2d at 885.
31
Lallas, 167 Wn.2d at 864.
32
Lallas, 167 Wn.2d at 864.
-16-
NO. 67749-7-I / 17
concluded that the absolute immunity of quasi-judicial officers extends to
governmental entities vicariously liable for the individual officers’ acts.33
The same policy considerations that control the extension of absolute
immunity to governmental entities for the official acts of their prosecutors and
judges are present in this case. Analogous to the immunity afforded prosecutors
and judges, the immunity afforded by RCW 18.130.300 exists not to protect
individuals but to protect the integrity of a uniform disciplinary process for health
care professionals. It guarantees the independence of these individuals and
allows them to protect the adequacy of professional competence and conduct
without fear of suit. Therefore, we hold that the absolute immunity of RCW
18.130.300 extends to the State and the Department.
Respondents Are Immune from Suit under 42 U.S.C. § 1983
Janaszak contends the trial court erred by dismissing his claim for
damages under 42 U.S.C. § 1983. Section 1983 provides the primary means for
private enforcement of civil rights in the United States; Congress enacted this
statute “to provide protection to those persons wronged by the ‘misuse of
power.’”34 Specifically, it provides,
33
Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 127, 829 P.2d
746 (1992).
34
Owen v. City of Independence, 445 U.S. 622, 650, 100 S. Ct. 1398, 63
L. Ed. 2d 673 (1980) (internal quotation marks omitted (quoting Monroe v. Pape,
365 U.S. 167, 184, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), overruled on other
grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978)).
-17-
NO. 67749-7-I / 18
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
The statute authorizes a civil action for the deprivation of federal constitutional
rights.
Janaszak alleges that the respondents deprived him of his constitutionally
protected interest in his dental license by conducting a biased investigation and
intentionally skewing the facts presented to the Commission in support of a
request to restrict his license during the pendency of disciplinary proceedings.
The State and the Department contend that they are not subject to § 1983
claims. The individual respondents claim qualified immunity protects them. They
also assert that Janaszak has failed to create a genuine issue of material fact on
necessary elements of his claim. We agree with respondents.
Because “neither a State nor its officials acting in their official capacities
are ‘persons’ under § 1983,”35 neither the State nor the Department can be held
liable for violations of 42 U.S.C. § 1983.36 This leaves for our consideration
Janaszak’s § 1983 claims against individual respondents.
35
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105
L. Ed. 2d 45 (1989).
36
Smith v. State, 135 Wn. App. 259, 270, 144 P.3d 331 (2006) (citing
Hafer v. Melo, 502 U.S. 21, 31, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991)).
-18-
NO. 67749-7-I / 19
A plaintiff must establish two essential elements in a § 1983 action: (1)
that some person deprived him or her of a federal constitutional or statutory right
and (2) that person must have acted under color of state law. 37 A claim of
qualified immunity to a § 1983 action presents two issues: (1) do the facts make
out a violation of a constitutional right and (2) was the right at issue “clearly
established” at the time of the defendant's alleged misconduct. 38 Qualified
immunity applies unless the defendant’s conduct violated a clearly established
right.39 Both issues present “‘essentially legal question[s]’” for the court to
decide.40 The court may decide them in “the order of decisionmaking that will
best facilitate the fair and efficient disposition of each case.”41
Janaszak clearly has a protected property interest in his license to practice
dentistry.42 The State must afford him procedural due process in any proceeding
to deprive him of this property interest.43 Due process requires notice and an
37
Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 11, 829 P.2d 765 (1992).
38
Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815-16, 172 L.
Ed. 2d 565 (2009).
39
Pearson, 555 U.S. at 232.
40
Jones v. State, 170 Wn.2d 338, 349, 242 P.3d 825 (2010) (alteration in
original) (quoting Mitchell, 472 U.S. at 526).
41
Pearson, 555 U.S. at 242.
42
Bang D. Nguyen v. Dep’t of Health, Med. Quality Assurance Comm’n,
144 Wn.2d 516, 522, 29 P.3d 689 (2001) (recognizing medical practice licenses
as a legitimate private property interest).
43
Bang D. Nguyen, 144 Wn.2d at 522-23.
-19-
NO. 67749-7-I / 20
opportunity to be heard “‘at a meaningful time and in a meaningful manner.’”44 If
justified by an emergency, this notice and hearing may occur after a summary
action.45 But the emergency cannot be fabricated.46 Thus, Janaszak can
establish a § 1983 claim by proving an investigator wrongfully fabricated an
emergency and knew or reasonably should have known that this fabrication
would cause the Commission to find an emergency and summarily restrict
Janaszak’s dental license without a predeprivation hearing.47
Janaszak contends Miller-Smith caused the deprivation of his procedural
due process rights with a biased investigation and “intentional skewing of the
known facts” that led a summary restriction of his dental license. Specifically, he
complains that Miller-Smith drafted two patient “complaints for them so as to
create an emergency and arbitrarily compiled only a portion of the evidence she
discovered during her investigation” and presented this to the Commission. He
also complains that Miller-Smith provided the Commission with summaries of the
statements she took from Janaszak, his office manager, and his dental assistant
rather than copies of the actual statements, thereby undermining their
importance. He asserts that the later withdrawal of his license restriction and the
44
Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006)
(internal quotation marks omitted) (quoting Mathews v. Eldridge, 424 U.S. 319,
333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).
45
Jones, 170 Wn.2d at 351.
46
Jones, 170 Wn.2d at 351.
47
Jones, 170 Wn.2d at 352.
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NO. 67749-7-I / 21
dismissal of charges against him establish that Miller-Smith’s alleged misconduct
caused a wrongful restriction of his dental license. Again, we disagree.
Janaszak does not identify any misstatement of fact or omission of any
material information in any complaint drafted by Miller-Smith. He does not
explain how these complaints fabricated an emergency. Janaszak does not
identify any misstatement of fact or omission in Miller-Smith’s summary of the
statements she took. Janaszak does not identify any evidence available to
Miller-Smith material to the charges against him that the Department did not
present to the Commission when it sought emergency relief. The Department
based its charges on former patients’ claims that Janaszak had sex with these
individuals while they were his patients. Janaszak admitted having sex with them
but denied the individuals were his patients at the time. Janaszak has not
identified any evidence about the status of these individuals as patients that the
Department withheld or “skewed.” Janaszak does not identify any witness Miller-
Smith failed to interview in her investigation, any material evidence she failed to
discover, or any evidence she fabricated. In summary, Janaszak failed to create
any material issue of fact about the alleged fabrication of an emergency.
Additionally, Janaszak’s argument that the subsequent dismissal of
charges demonstrates Miller-Smith improperly influenced the summary
emergency action of the Commission ignores the only evidence in the record
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NO. 67749-7-I / 22
explaining why the Department withdrew the charges. The assistant attorney
general who handled the disciplinary action against Janaszak stated the reason
for the withdrawal in her declaration. After Janaszak took partial depositions of
the complainants, two did not want to schedule completion of their depositions,
follow through with necessary discovery, or attend the disciplinary hearing. The
charges were withdrawn due to this inability to proceed, not because evidence
became known to the Commission after its summary action that caused it to
reach a different conclusion about the merits of the charges.
Because Janaszak failed to show a violation of a federal constitutional
right, we affirm the trial court’s dismissal of his § 1983 claims against the
individual respondents.
Janaszak’s State Constitutional Claims Fail
In his complaint, Janaszak asserted claims for violations of article I,
sections 3, 5, and 7 of the Washington Constitution. On appeal, Janaszak
argues that the trial court improperly dismissed these constitutional claims
because he requested injunctive relief in addition to damages. Washington
courts have consistently refused to recognize a cause of action in tort for
violations of the state constitution.48 Because Janaszak failed to create any
48
Blinka v. Wash. State Bar Ass’n, 109 Wn. App. 575, 591, 36 P.3d 1094
(2001).
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NO. 67749-7-I / 23
genuine issue of material fact about his entitlement to injunctive relief, the trial
court properly dismissed his state constitutional claims.
Janaszak Did Not Present Any Issue of Material Fact Relating to His Tort Claims
Finally, Janaszak asserted common law claims for defamation, intentional
interference with business expectancy, negligent investigation, common law
negligence, outrage, and negligent infliction of emotional distress. We address
each claim individually.
1. Defamation
Janaszak alleges that a press release posted on the Department’s web
site defamed him with its headline, “Kitsap County dentists [sic] license restricted
after having sex with patients.” Relying upon Liberty Bank of Seattle, Inc. v.
Henderson,49 the Department claims absolute immunity from this claim. Citing
Bender v. Seattle,50 Janaszak contends the immunity is qualified rather than
absolute. We need not decide this issue because even if the privilege is only
qualified, to defeat a motion for summary judgment Janaszak must present
specific facts creating a genuine issue of material fact on the question of
whether the Department’s statement was made after a fair and impartial
investigation or upon reasonable grounds.51 He has not done so.
49
75 Wn. App. 546, 562, 878 P.2d 1259 (1994).
50
99 Wn. 2d 582, 600, 664 P.2d 492 (1983).
51
Turngren v. King County, 104 Wn.2d 293, 310, 705 P.2d 258 (1985).
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NO. 67749-7-I / 24
2. Negligent Investigation and Common Law Negligence
Janaszak maintains that the respondents can be held liable for negligent
investigation because the UDA creates a statutory duty to investigate complaints
against health care providers. In general, Washington common law does not
recognize a claim for negligent investigation because of the potential chilling
effect such claims would have on investigations.52 We have refused to recognize
a cognizable claim for negligent investigation against law enforcement officials
and other investigators.53
Janaszak argues that Lesley v. Department of Social & Health Services54
and Corbally v. Kennewick School District55 create such a cause of action. We
disagree. The Lesley court narrowly limited its holding to create a negligent
investigation claim only against the Department of Social and Health Services
(DSHS) caseworkers investigating child abuse pursuant to their specific statutory
duty to investigate.56 In Corbally, as here, the plaintiff attempted to extend
52
Ducote v. Dep’t of Soc. & Health Servs., 167 Wn.2d 697, 702, 222 P.3d
785 (2009).
53
Dever v. Fowler, 63 Wn. App. 35, 44-45, 816 P.2d 1237 (1991);
Fondren v. Klickitat County, 79 Wn. App. 850, 862-63, 905 P.2d 928 (1995);
Donaldson v. City of Seattle, 65 Wn. App. 661, 671, 831 P.2d 1098 (1992).
54
83 Wn. App. 263, 273, 921 P.2d 1066 (1996).
55
94 Wn. App. 736, 740, 973 P.2d 1074 (1999).
56
RCW 26.44.050 provides that “[u]pon the receipt of a report concerning
the possible occurrence of abuse or neglect, the law enforcement agency or the
department of social and health services must investigate and provide the
protective services section with a report . . . and where necessary to refer such
report to the court.” (Emphasis added.)
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NO. 67749-7-I / 25
Lesley, arguing that a negligent investigation claim should be permitted any time
a statutory duty to investigate exists.57 Janaszak mischaracterizes Corbally’s
holding to say that the court recognized an exception for all cases where an
agency has a statutory duty to investigate. It does not. While Lesley carved out
an exception for DSHS caseworkers, Corbally expressly refused to extend that
exception any further. Our courts have created no further exceptions to the
general rule that we do not recognize claims for negligent investigation. We
decline to do so here.
Further, even if we were to recognize that the statutory duty to investigate
under RCW 18.130.080 creates a cognizable claim for negligent investigation,
the respondents in this case are still immune from such a suit. Because Miller-
Smith’s investigation and the Commission’s summary suspension occurred
purely within the context of a UDA adjudicative proceeding, the parties are
entitled to statutory immunity under RCW 18.130.300.
The parties also are entitled to statutory immunity under RCW 18.130.300
against Janaszak’s common law negligence claims.
3. Outrage and Negligent Infliction of Emotional Distress
Janaszak contends that he made a prima facie showing of each element
necessary to his claim for outrage. Again, we disagree. “One who by extreme
57
Corbally, 94 Wn. App. at 740.
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NO. 67749-7-I / 26
and outrageous conduct intentionally or recklessly causes severe emotional
distress to another is subject to liability for such emotional distress.”58 To
establish a claim for the tort of outrage, Janaszak must demonstrate that (1) he
suffered severe emotional distress; (2) the emotional distress was inflicted
intentionally or recklessly, and not negligently; (3) the conduct complained of was
outrageous and extreme; and (4) he personally was the object of the outrageous
conduct.59 The defendant’s conduct must be “‘so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’”60
Janaszak argues that the Commission acted outrageously by conducting a
biased investigation, selectively gathering evidence to build a case against him,
and branding him a pedophile by limiting his practice to exclude all females “over
12 years old.” While Janaszak may have been distressed by the Commission’s
actions, he presents no evidence that the Commission or the investigator acted
intentionally or recklessly to injure him. As a matter of law, Janaszak failed to
present a prima facie case of outrage.
58
Lewis v. Bell, 45 Wn. App. 192, 194, 724 P.2d 425 (1986).
59
Chambers-Castanes v. King County, 100 Wn.2d 275, 288, 669 P.2d
451 (1983).
60
Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998)
(emphasis omitted) (internal quotation marks omitted) (quoting Grimsby v.
Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)).
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NO. 67749-7-I / 27
4. Interference with Business Expectancy
Finally, Janaszak contends that respondents’ summary restriction of his
dental license constitutes intentional interference with business expectancy.
Janaszak maintained contracts with three dental insurance providers that
together provided approximately 90 percent of Janaszak’s dental claims
payments. He claims the posting of notice of his license restrictions on the
Department’s web site caused these insurers to refuse to honor their contracts.
He also argues that the restriction improperly interfered with his expectancy to
treat female patients between the ages of 12 and 17.
To prove tortious interference, the plaintiff must produce evidence
sufficient to support all of the following elements: (1) the existence of a valid
contractual relationship or business expectancy, (2) the defendant’s knowledge
of and intentional interference with that relationship or expectancy, (3) a breach
or termination of that relationship or expectancy induced or caused by the
interference, (4) an improper purpose or the use of improper means by the
defendant that caused the interference, and (5) resultant damage.61 A complete
failure of proof concerning any element necessarily renders all other facts
immaterial.62 Because Janaszak fails to demonstrate that the Commission acted
with an improper purpose or by improper means, his claim fails.
61
Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 157, 930
P.2d 288 (1997).
62
Boyce v. West, 71 Wn. App. 657, 665, 862 P.2d 592 (1993).
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NO. 67749-7-I / 28
CONCLUSION
Respondents are immune from Janaszak’s claims under the UDA and
federal civil rights law. Janaszak fails to show any issue of material fact relating
to his tort claims or his request for injunctive relief under the Washington
Constitution. We affirm.
WE CONCUR:
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