Opposition — Mosher v. Saalfeld

(* 9g-1619

79-167

IN THE SUPREME COURT OF THE UN

No.

OCTOBER TERM 1978

DELORES A. MOSHER,

Petitioner,

vs.

H. C. SAALFELD and

WESLEY J. ROBINSON,

Respondents.

BRIEF IN OPPOSITION

>

RIDGWAY K. FOLEY, JR.

SOUTHER, SPAULDING, KINSEY,

WILLIAMSON & SCHWABE

1200 Standard Plaza

Portland, Oregon 97204

Telephone: (503) 222-9981

Counsel for Respondents

TABLE OF CONTENTS

BRIEF IN OPPOSITION

Page

Questions Presented for Review .... 1

Statement of the Case

1. Nature of the Case, Course

of Prior Proceedings, and

Disposition in the Court

i NS ee ee ee ee a eee eee 3

ae Statement of Facts ........... 8

2. Basis for Federal

ee ns newwesees 15

Reasons for Denying Writ .......... 16

ee OE BS ccc cccccceene 16

Argument

The Ninth Circuit ruling,

correct in law, offers no

far-reaching consequences

justifying consideration by

this Court. The decision

accords with all known

Federal Court rulings.

No conflict exists ..........-. 18

Introduction: The Function

of Summary Judgment ...........ce8. 18

DE ees 5 b's tc we eae a a ee 43

The Doctrine of Respondeat

Superior May Not be Util-

ized to Impose Vicarious

Liability Upon A Public

Official In Civil Rights

Actions Commenced Under

G2 Usbes FF PPE qi cr ctg.ssicvee ao

Executive officers-such as

Mr.. Saalfeld and Mr. Robinson

Enjoy a Qualified Immunity

from 42 U.S.C. § 1983

actions Where they act within

the scope of their official

duty, in good faith and

upon reasonable belief in

the appropriateness of

TRE DCO 6 ce eas hateeewses 26

(A) The doctrine of

Qualified Executive

| Bane ek ee eae 26

(B) The Purpose of the

Se ae a ec ED a ee ace ak ae 28

(C) Reliance on Qualified

SNE VEO kkk os ek tee 34

(D) Summary Judgment

Rs bat 6.64 din 0.8 * 9 35

The Concept of Absolute

Immunity Protects a State

Officer Acting as Conser-

vator from 42 U.S.C.

a: el.” ner rarer oe 36

INDEX OF AUTHORITIES

Cases Page

Barr v. Matteo, 360 U.S.

[ae FO Ss Che tase, 3 b-

EG.24 1434 (1959). ..ccscoes 30,31,32

Bennett v. People of the

State of California, et

al., 406 F.2d 36 (9th Cir.

0 ae rs ee ee ee ee 40

Boettger v. Moore, 483 F.2d

Oe CPU GEe es Sere). caw s ces cennece 25

Bury v. Bury, 24 Or. App.

775, 546 P.2d 1102 (1976),

Sup. Ct. review denied

SOTO. 46640 O dS Oe Oe eh ee ee 12,42,43

Cooper v. O'Connor, 69 U.S.

App. D.C. 100, 99 F.2d 135

De 5 oe Wik 60 be de eR a ee ee Oe ee 41

Dalehite v. United States,

266 0.8. 25, .72 8... Ct. 936,

7 &. Ba. 2427 (i050) 333s. ss: 29

Doff v. Brunswick Corporation,

372 F.2d 801 (9th Cir. 1967),

cert. denied 389 U.S. 820,

o8 8. CG. 39, 29 L. BG.26

ie. os arr ee ee ee ee eee 23

First Nat. Bank of Ariz. v.

Cities Service Co., 391

U.8. 233, 86.8. Gt. 3575,

20 L. Ed.2d 569 (1968),

rehearing denied, 393 U.S.

S0i, 69 3..Ct. 63, 21 kb.

se AO AOE Bees eens se ee sees 23

Gregoire v. Biddle, 177

F.2d 579 (2nd Cir. 1949),

cert. denied, 339 U.S. 949,

70 8. Gt. 803, 6 L.. Bd.

Bee CROOEE bh see sh eta Veen aa,a0se8

INDEX OF AUTHORITIES (Cont. )

Handverger v. Harvill, 479

F.2d 513 (9th Cir. 1973),

cert. denied 414 U.S. 1072,

94 S. Ct. 586, 38 L. Ed.2d

GTO CAGras 664-6444 ce eee be ae teases 35

Hesselgesser v. Reilly, 440

F.2d 901 (9th Cir. 1971) ........ y

Hoffman v. Halden, 268 F.2d

$00 (9th Cir. T9SB) . ks be eec cece 40

Holmes v. Silver Cross Hospital

of Joliet, Illinois, 340 F.

Supp. 125 (N.D. Ill.

rg Re eer ee ee des 37,38,39

Hutchison v. Lake Oswego

School District No. 7, 519

F.2d 961 (9th Cir. 1975)

[vacated other grounds, 429

U.S. 1033, 97 @. Gis Fees

50 L. BG. 86. TOR CEST ee accceccss 35

International Longshoremen's

& Warehousemen's U. v. Kuntz,

334 F.2d 165 (9th Cir.

29GG) ics kdaerustaee tenuse ee ees 23,24

McKinney v. DeBord, 507

F.2d 501 (9th Cir. 1974) ........ 15

Midwest Growers Co-Op. Corp.

v. Kirkemo, 533 F.2d 455

Sth Cis. BORE ciceans « a7 paGcetedese

Milton v. Nelson, 527 F.2d

1356 (9th Cie. BOTER 2 occeee snaes 36

Mark v. Groff, 521 F.2d

1376. (9G Car. SOPE) nkcesccdaceace 28

Navarette v. Enomoto, 536

F.2d 277 (9th Cir. 1976),

Sup. Ct. appeal pending ......... 26

INDEX OF AUTHORITIES (Cont. )

Oakley v. City of Pasadena,

535 F.2d 503 (9th Cir.

eS eee Paes Pee 34,35,36

O'Campo v. Hardisty, 262

F.2d 621 (9th Cir. 1958) ..... 40,41

Pierson v. Ray, 386 U.S.

547, 87 S&S. Ct. 1213, 18 L.

eee UD ETD bac eeseccccceccs 37

Scheuer v. Rhodes, 416 U.S.

232, 94 S. Ct. 1683, 40 L.

Ed.2d 90 (1974) ..... 27,28,29,30,34

Selico v. Jackson, 201 F.

Supp. 475 (S.D. Cal. 1962) ...... 40

Silver v. Dickson, 403 F.2d

OGe €9tR Cif. 1968) ....cccccccee 40

Spalding v. Vilas, 161 U.S.

483, 16 S. Ct. 631, 40 L.

EE ge ear Shean

Suckow Borax Mines Consol.

v. Borax Consolidated, 185

F.2d 196 (9th Cir. 1950),

cert. denied, 340 U.S. 943,

4a 8S. Ct. $06, 95 Lb. Ed.

8 EN 19,20

Sykes v. State of California

(Dept. of Motor Vehicles),

497 F.2d 197 (9th Cir.

tae ae ene eo ae boo 0 6 3 39,40,41

Washington Post Company v.

Keogh, 365 F.2d 965 (D.C.

Cir. 1966), cert. denied

aan U.8. 1101, 87 8. Ct.

708, 17 L. Ed.2d 548 (1967) ..... 19

Williams v. Vincent, 508

Poee 341 €2nG Cir. 1974) ..... 25,26

INDEX OF AUTHORITIES (Cont. ) IN THE SUPREME COURT OF THE UNITED STATES

Zweig v. Hearst Corporation, No.

521 F.2d 1129 (9th Cir. 78

1975) cert. denied 423 U.S. OCTOBER TERM 19

1025, 96 S. Ct. 469, 46 L.

sae SOP CAOTEE 2 ccs Ke wwscvcec 18,19

DELORES A. MOSHER,

Statutes and Constitution . Petitioner,

Rule 56(b), Fed. R. Civ. P. ....... 18 vs.

Ruse S6(6), Ped. BR. Civ. BP. ...cccs 20

eS ee Rs Ge L5 H. C. SAALFELD and

p SS ce eee 15 WESLEY J. ROBINSON,

a ie ae eee 15

encase I Wb a bc Wain owed chen 15 Respondents.

Se a se EE oy bw 0 oui nee é de 20,21 ;

Oe WemeGes BS ROE fea ccas 1,2,4,15,36,25,

26,34,36,37

kA SSS heey | Seema 3 BRIEF IN OPPOSITION

aes Ae I 0-6 6 hobo aks kee 3

Texts, Treatises and Other Authorities

QUESTIONS PRESENTED FOR REVIEW

Comment, Civil Liability of

Subordinate State Officials ’

Under the Civil Rights Acts ;

and the Doctrine = Official | (A) Does the doctrine of respondeat superior

Immunity, 44 Calif. L. Rev.

Ot Ee ee ee a 41 impose vicarious liability upon state

6 Moore's Federal Practice ae nee ti

§ 56.08, 56-136-56-137 (2d officials in civil rights actions

MARE So) Se ee Soret 24

6 Moore's ke Practice | under 42 U.S.C. § 1983 where state

§ 56.15[3] 2129-2130 (1953) ..... 24 ge .

Note, Lge Ir hl of tects law does not specifically provide for

Immunity Under the Civil aaa te

Rights Acts, 68 Harv. L. such liability:

es Oe CAME os ectaenbecv’eaces 41

(B)

(C)

2

Are state officials entitled to a

summary judgment in civil rights actions

where they demonstrate by affidavit

that they acted within the scope of

their official duty, in good faith,

and with reasonableness, and where

the plaintiff does not challenge these

“elements?

Are state officials acting in a fiduci-

ary capacity as conservator of an

incompetent or protected person pursuant

to court order entitled to a summary

judgment under the doctrine of absolute

judicial immunity?

ee eee

<n = en == «+

3

STATEMENT OF THE CASE

Ae Nature of the Case, Course of Prior

Proceedings, and Disposition in the

Court Below.

Plaintiff-Appellant Delores A.

Mosher (hereinafter referred to as "plain-

tiff" or "Mrs. Mosher") filed her original

complaint naming twenty-four individuals,

one state agency, and two "Jane Does" as

defendants in a “civil rights" action pur-

suant to 42 U.S.C. §§ 1983, 1985(2) and

(3), and 1986, seeking $1,248,000.00 "actual"

damages and $1,000,000.00 punitive damages

(R. pp. 1-12). She included in her litany

of defendants five state of Oregon and

federal attorneys, four state of Oregon

Circuit Court Judges, three state of Oregon

Court of Appeals Judges, two Deputy Circuit

Court Clerks, one Probate Auditor for Lane

4

County, Oregon, one Court Reporter, three

private attorneys and a host of her other

real or imagined malefactors (R. pp. 1-12).

After court action upon numerous

motions to dismiss, plaintiff filed her

amended complaint, restricting her claim

for relief to charges pursuant to 42 U.S.C.

§ 1983 against defendant-appellee, H. C.

Saalfeld, Director of the Department of

Veterans Affairs, State of Oregon (sometimes

hereinafter referred to as "Mr. Saalfeld")

and Wesley J. Robinson, Trust Officer em-

ployed by the State of Oregon Department

of Veterans Affairs (sometimes hereinafter

referred to as "Mr. Robinson"; Messrs.

Saalfeld and Robinson are sometimes herein-

after referred to jointly as "defendants" )

(R. pp. 423-425). She charged:

"That on May 9, 1974 the

Department of Veterans' Affairs

by and through its Director and/or

Agents deprived plaintiff of her

eee + = ree.

5

rights to real and personal pro-

perty by forcibly breaking into

and entering plaintiffs [sic]

home while she was at work and

removed personal property and

locked plaintiff out of her home

by changing door locks without

awful ae NO TRESPASSING signs."

(R. p. 424, emphasis in original.)

Defendants denied plaintiff's

allegations (R. p. 427). They pleaded

that the Lane County (Oregon) Circuit Court

dismissed plaintiff as guardian of the

estate of Mr. James L. Bury, plaintiff's

legally incompetent husband, on February 13,

1974, and substituted the State of Oregon

Department of Veterans' Affairs (hereinafter

referred to as the "State VA") as conservator

(R. p. 427). Oregon law charges a conser-

vator with the general duty to safeguard

the property of the protected person (R.

p. 428). Mr. Bury advised State VA Trust

Officer defendant Mr. Robinson that a dwel-

ling jointly owned by plaintiff and Mr. Bury

6

in Coquille, Oregon, was unoccupied and

requested his trust officer to secure cer-

tain personal property therein belonging

to the incompetent (R. p. 428). On May 9,

1974, Mr. Robinson found the premises vacant,

the telephone disconnected and the mailbox

full of mail (R. p. 428). After obtaining

legal approval from the Attorney General’

for the State of Oregon, Mr. Robinson entered

the house through a broken basement window,

removed Mr. Bury's personal property, and

posted the real property (R. pp. 428-429).

Defendants acted at all times in good faith

performance of their official duties in

accordance with the mandate of the law,

believing in the reasonableness of their

actions and pursuant to legal advice of

the Attorney General (R. p. 429).

Plaintiff named Mr. Saalfeld

only because he served as Director of the

4

State VA, not because he took any active

role in these proceedings (R. pp. 537-541).

Mr. Robinson filed an affidavit

which outlined in detail his connection to

the transaction as related before and af-

firmed his good faith performance of. offi-

Cial duty (R. pp. 592-596).

At no time did plaintiff come

forward with any evidentiary challenge to

Mr. Robinson's testimony of good faith

performance of official duty (R. passim;

R. p. 611).

Defendants moved for a summary

judgment (R. p. 527) which the District

Court granted (R. pp. 705-706; Pet. Cert

App. B, p. 44) upon the findings and recom-

mendations of United States Magistrate

George E. Juba (R. pp. 609-611; Pet. Cert.

App. E, pp. 39-41). Plaintiff wrote to

Judge Juba, in part:

"The complete illegagity [sic]

and wrongfulness of a Summary

Judgment ruling in reguard [sic]

to this case, and being a man

with your experience and reputa-

tion I find it most unbelievable

that you would sacrifice your

integrity and belief in justice

for the above named case.

"IT have taken the liberty

of continuing to make this letter

also a [sic] integral part of

the record on file.

i eee *

(®. p. 608)

Plaintiff appealed to the United

States Court of Appeals for the Ninth Circuit

(R. p. 708). That Court affirmed the District

Court (Pet. Cert., App. A, pp. 22-28).

Statement of Facts.

On June 23, 1969, the Veterans

Administration rated Mr. James L. Bury, a

veteran, incompetent pursuant to the follow-

ing statement:

9

"... . He has carried a

diagnosis of schizophrenic reac-

tion, chronic, undifferentiated

type, and the history would indi-

cate excessive use of narcotic

drugs.

"In view of these findings,

and based upon his records, the

veteran is considered incompetent

to properly handle funds, and is

in need of a guardian." (R.

p. 261)

Because his incompetency relates to a

service-connected condition, Mr. Bury re-

ceives 100% disability assistance (R. pp. 33,

158).

The Circuit Court of the State

of Oregon for the County of Lane established

a guardianship of the estate of Mr. Bury,

with Mrs. Grace 0. Rollofson, his mother,

serving as guardian effective May 1, 1970

(R. pp. 33, 158, 293). Mrs. Mosher sued

Mrs. Rollofson, among her many original

defendants (R. pp. 1-12).

10

Plaintiff married Mr. Bury in

Reno, Nevada, on September 30, 1971 (R.

pp. 105, 230). On July 10, 1972, the

Circuit Court removed Mrs. Rollofson as

guardian and substituted plaintiff (R.

pp. 232-233, 293). The Circuit Court found

considerable fault with plaintiff's account-

ing and performance as guardian and initially

surcharged her $4,142.67 (R. p. 169), later

modified to $1,454.05 (R. p. 395), perhaps

explaining one of the reasons Mrs. Mosher

named the Circuit Court Judge as an original

defendant in this action. During the mar-

riage, Mr. Bury and plaintiff purchased a

home, furniture and business with guardian-

ship funds in Coquille, Oregon (R. pp. 381-

382, 370, 554).

Mr. Bury moved out of the home

on December 30, 1973, with the intention

of dissolving his marriage to plaintiff

11

(R. p. 372). On or about January 18, 1974,

Mr. Bury and his mother petitioned the

Circuit Court to remove plaintiff as guar-

dian and to appoint a successor conservator

of his estate! (R. pp. 367-373). Plaintiff

had refused to turn over furniture owned

by Mr. Bury on request and had not properly

handled the incompetent's funds (R. pp. 370,

372).

The Circuit Court removed plaintiff

as guardian on February 11, 1974 (R. pp. 337,

390, 427), surcharged her (R. pp. 169,

395), and appointed the State VA as conser-

vator (R. pp. 337, 390, 427). Mr. Robinson

served as Mr. Bury'‘s Trust Officer under

the State VA conservatorship (R. pp. 592-593).

Concurrently, on January 22,

1974, Mr. Bury filed a petition in Lane

lchange in Oregon law accounts for the

change in nomenclature.

12

County Circuit Court to dissolve his marriage

to plaintiff (R. p. 113). On May 12, 1975,

the Circuit Court decreed dissolution of the

marriage, awarding Mr. Bury the home in

Coquille and the color television set (R.

pp. 118-120). Plaintiff appealed, and the

Oregon:Court of Appeals affirmed the decree

per curiam. Bury v. Bury, 24 Or. App.

775, 546 P.2d 1102 (1976), Sup. Ct. review

denied (1976).

During the pendency of the disso-

lution proceeding, Mr. Robinson, in his

official capacity, reviewed the plaintiff's

Final Accounting and found discrepancies

which led to the filing of objections (R.

pp. 337, 593). Mr. Robinson testified at

the hearing on May 6, 1974, which led to

the surcharge of plaintiff (R. p. 593).

Mr. Bury notified Mr. Robinson that his

home at Coquille was unoccupied and that

13

the telephone was disconnected (R. p. 594);

he requested Mr. Robinson to secure some

of his personal property (an oak table and

a color television set) remaining in his

home (R. pp. 428, 594).

On May 9, 1974, Mr. Robinson

traveled to the Coquille residence (which

was later awarded by the Circuit Court to

Mr. Bury, R. pp. 118-120, 547) and found

it unoccupied and the mailbox stuffed full

of letters (R. p. 428). He entered the

premises through a broken basement window,

changed the locks, posted the property

with State VA signs, and notified the County

Service Officer and the Coquille Police

Department in an effort to safeguard

Mr. Bury's real and personal property (R.

p. 594). Because the Circuit Court had

not resolved the dissolution proceeding,

Mr. Robinson checked with the Oregon Attor-

ney General concerning the appropriateness

14

of removal of the two items of personal

property requested by Mr. Bury (R. pp. 594-

595). Upon receiving legal advice authori-

zing him to do so, the trust officer removed

the oak table and the color television set

and turned them over to Mr. Bury (R. p. 594).

(The Circuit Court awarded the oak table

and color television set to Mr. Bury in

the dissolution proceeding, R. p. 596.)

Plaintiff complains of these acts (R.

p. 424). She does not contend that

Mr. Robinson forced the front door (R.

p. 523) or that Mr. Robinson did not act

with legal advice (R. p. 524). Shortly

thereafter, plaintiff was allowed to reoc-

cupy the property during the pendency of

the dissolution proceedings (R. p. 595).

Mr. Robinson's affidavit stated

that at all times he acted in good faith,

in his official capacity, relying upon

legal advice and believing in the reason-

15

ableness of his actions (R. pp. 429, 592-

596). Plaintiff did not challenge these

material facts (R. passin; R. p. 611).

While plaintiffs who choose to appear pro

se receive deference and liberal treatment,

the law requires the application of common

sense by the court, McKinney v. DeBord,

507 F.2d 501, 504 (9th Cir. 1974), and no

rule of law demands that District Courts

or adverse parties help such plaintiffs

state a claim for relief.

x Oe Basis for Federal Jurisdiction.

Jurisdiction of the District

Court rested upon 28 U.S.C. §§ 1331, 1343

and 42 U.S.C. § 1983, and jurisdiction of

the United States Court of Appeals for the

Ninth Circuit was premised upon 28 U.S.C.

§ 1291. Jurisdiction of this Court is

based upon 28 U.S.C. § 1254(1).

16

Reasons for Denying Writ

SUMMARY OF ARGUMENT

The Ninth Circuit ruling, correct

in law, offers no far-reaching consequences

justifying consideration by this Court.

The decision harmonizes with all decisions

of all Federal Courts.

The doctrine of respondeat superior

does not impose liability upon Mr. Saalfeld,

who was named as a defendant merely because

he served as Director of the State VA.

Executive officers such as

Mr. Saalfeld and Mr. Robinson enjoy a quali-

fied immunity from 42 U.S.C. § 1983 actions

where they act within their official autho-

rity, in good faith, and reasonably. Such

officials are entitled to summary judgment

where they establish these three elements

17

by affidavit and plaintiff does not contro-

vert all three, since the case therefore

contains no genuine issue of material fact.

In addition, such men are entitled to, and

did without dispute, rely upon legal advice

from the Oregon Attorney General before

acting in this case.

The doctrine of absolute judicial

immunity applies and protects a state offi-

cial employed by a state agency acting as

conservator of an incompetent. Since

Mr. Robinson acted within his authority,

summa’ y judgment must be granted.

18

ARGUMENT

The Ninth Circuit ruling, correct

in law, offers no far-reaching conse- —

quences justifying consideration by

this Court. The decision accords

with all known Federal Court rulings.

No conflict exists.

Introduction: .The Function of Summary

Judgment.

Federal courts should grant sum-

mary judgments where no genuine issue of

material fact exists and the moving party

is entitled to judgment as a matter of

law. Rule 56(b), Fed. R. Civ. P. In Zweig

v. Hearst Corporation, 521 F.2d 1129, 1135-

1136 (9th Cir. 1975), cert. denied, 423

U.S. 1025, 96 S. Ct. 469, 46 L. Ed.2d 399

(1975), the Ninth Circuit observed:

19

“Summary judgment has, as

one of its most important goals,

the elimination of waste of the

time and resources of both liti-

gants and the courts in cases

where a trial would be a useless

formality. ... ."

The present case represents an apt example

of a situation requiring summary judgment.

‘Sée also, Washington Post Company v. Keogh,

365 F.2d 965, 968 (D.C. Cir. 1966), cert.

denied 385 U.S. 1011, 87 S. Ct. 708, 17 L.

Ed.2d 548 (1967).

A party met with a motion for

summary judgment, such as plaintiff here,

cannot rest upon her general pleading when

confronted by specific controverting facts

in affidavits or depositions; in Suckow

Borax Mines Consol. v. Borax Consolidated,

185 F.2d 196, 205 (9th Cir. 1950), cert.

denied, 340 U.S. 943, 71 S. Ct. 506, 95

L. Ed. 680 (1951), the court declared:

in 1963.

20

"... . But when a general

statement in a pleading is shown

by specific facts stated in con-

troverting affidavits, deposi-

tions and admissions, to be un-

true, and the facts so presented

are not denied and are not of

such nature as to be peculiarly

within the knowledge of the

affiant, then no 'genuine' issue

remains for the trier of the

SOCCER. aun *

Rule 56(e), Fed. R. Civ. P. pro-

vides:

"... . When a motion for

summary judgment is made and

supported as provided in this

rule, an adverse party may not

rest upon the mere allegations

or denials of his pleading, but

his response, by affidavits or

as otherwise provided in this

rule, must set forth specific

facts showing that there is a

genuine issue for trial. If he

does not so respond, summary

judgment, if appropriate, shall

be entered against him."

These two sentences were added by amendment

§ 416, commented as follows:

The Advisory Committee, 28 U.S.C.

~

——-

21

"The last two sentences are

added to overcome a line of cases,

chiefly in the Third Circuit,

which has impaired the utility

of the summary judgment device.

A typical case is as follows: A

party supports his motion for

summary judgment by affidavits

or other evidentiary matter suf-

ficient to show that there is no

genuine issue as to a material

fact. The adverse party, in

opposing the motion, does not

produce any evidentiary matter,

or produces some but not enough

to establish that there is a

genuine issue for trial. In-

stead, the adverse party rests

on averments of his pleadings

which on their face present an

issue. In this situation Third

Circuit cases have taken the

view that summary judgment must

be denied, at least if the aver-

ments are 'well-pleaded,' and

not suppositious, conclusory, or

ultimate. ... . [Citations

omitted. ]

"The very mission of the

summary judgment procedure is to

pierce the pleadings and to as-

sess the proof in order to see

whether there is a genuine need

for trial. The Third Circuit |

doctrine, which permits the

pleadings themselves to stand in

the way of granting an otherwise

22

justified summary judgment, is

incompatible with the basic pur-

pose of the rule. .... ([Cita-

tions omitted. }

"It is hoped that the amend-

ment will contribute to the more

effective utilization of the

salutary device of summary

judgment.

"The amendment is not in-

tended to derogate from the

solemnity of the pleadings.

Rather it recognizes that,

despite the best efforts of

counsel to make his pleadings

accurate, they may be over-

whelmingly contradicted by the

proof available to his adversary.

"Nor is the amendment de-

signed to affect the ordinary

standards applicable to the

summary judgment motion. So,

for example: Where an issue as

to a material fact cannot be

resolved without observation of

the demeanor of witnesses in

order to evaluate their credi-

bility, summary judgment is not

appropriate. Where the eviden-

tiary matter in support of the

motion does not establish the

absence of a genuine issue,

summary judgment must be denied

even if no opposing evidentiary

matter is presented. And sum-

mary judgment may be inappropri-

ate where the party opposing it

23

shows under subdivision (f) that

he cannot at the time present

facts essential to justify his

opposition."

Thus, Mrs. Mosher did not present

any genuine issue of material fact where

she did not controvert Mr. Robinson's affi-

davit showing his good faith performance

of official duty, pursuant to legal advice

and believing in the reasonableness of his

action (R. pp. 592-596). First Nat. Bank

of Ariz. v. Cities Service Co., 391 U.S.

253, 289-290, 88 S. Ct. 1575, 1592-1593,

20 L. Ed.2d 569 (1968), rehearing denied,

393 U.S. 901, 89 S. Ct. 63, 21 L. Ed.2d

188 (1968); Doff v. Brunswick Corporation,

372 F.2d 801, 803-805 (9th Cir. 1967),

cert. denied, 389 U.S. 820, 88 S. Ct. 39,

19 L. Ed.2d 71 (1967). As the court re-

marked in International Longshoremen's &

Warehousemen's U. v. Kuntz, 334 F.2d 165,

169, n. 5 (9th Cir. 1964):

24

"t... an opposing party who

has no countervailing evidence

and who cannot show that any

will be available at the trial

{is not] entitled to a denial of

the motion for summary judgment

on the basis of a hope that such

evidence will develop at the

trial. And, although the moving

party be unaided by any presump-

tion, when he has clearly estab-

lished certain facts the partic-

ular circumstances of the case

may cast a duty to go forward

with controverting facts upon

the opposing party, so that his

failure to discharge this duty

will entitle the movant to sum-

mary judgment.' 6 Moore's

Federal Practice § 56.15[3] at

pages 2129-2130 (1953) and cases

there cited."

Moreover, affirmative defenses,

such as those asserted by Mr. Robinson in

this case, provide an appropriate oppor-

tunity for the use of summary judgment

procedures. 6 Moore's Federal Practice

§ 56.08, 56-136-56-137 (2d ed. 1976).

23

1. The Doctrine of Respondeat Superior |

May Not be Utilized to Impose Vicar-

ious Liability Upon A Public Official

In Civil Rights Actions Commenced Under

42 U.S.C. § 1983.

Plaintiff named Mr. Saalfeld as

a party to this action only because he

acted as Director of the State VA and not .

because he took any active role in these

proceedings (R. pp. 537-541).

The law does not impose vacarious

liability upon a state official under the

doctrine of respondeat superior in 42 U.S.C.

§ 1983 civil rights actions in absence of

specific state law authorizing such liabil-

ity. Boettger v. Moore, 483 F.2d 86, 87

(9th Cir. 1973); Hesselgesser v. Reilly,

440 F.2d 901, 903 (9th Cir. 1971); Williams

v. Vincent, 508 F.2d 541, 546 (2nd Cir.

1974). Oregon has not enacted any rule

26

imposing such liability on Mr. Saalfeld.

Therefore, the court correctly granted

summary judgment for Mr. Saalfeld.

Navarette v. Enomoto, 536 F.2d 277 (9th

Cir. 1976), Sup. Ct. appeal pending;

Boettger v. Moore, supra; Williams v.

Vincent, supra.

- Executive officers such as Mr. Saalfeld

and Mr. Robinson Enjoy a Qualified Im-

munity from 42 U.S.C. § 1983 actions

Where they act within the scope of

their official duty, in good faith

and upon reasonable belief in the ap-

propriateness of their action.

(A) The doctrine of Qualified Execu-

tive Immunity.

In 1974, in litigation arising out of

the Kent State affair, this Court spoke to

this important doctrinal issue and outlined

27

the three elements [scope of official duty,

good faith, and reasonable belief] which

lead to qualified immunity. In Scheuer v.

Rhodes, 416 U.S. 232, 248-249, 94 S. Ct.

1683, 1692, 40 L. Ed.2d 90 (1974), the

court set forth the rule:

"These considerations suggest

that, in varying scope, a quali-

fied immunity is available to

officers of the executive branch

of government, the variation

being dependent upon the scope

of discretion and responsibili-

ties of the office and all the

circumstances as they reasonably

appeared at the time of the ac-

tion on which liability is sought

to be based. It is the existence

of reasonable grounds for the

belief formed at the time and in

light of all the circumstances,

coupled with good-faith belief,

that affords a basis for quali-

fied immunity of executive offi-

cers for acts performed in the

course of official conduct."

The Ninth Circuit followed this rule in

Midwest Growers Co-Op. Corp. v. Kirkemo,

533 F.2d 455, 463-464 (9th Cir. 1976):

28

"... [Where] the acts of

the officials named as defen-

dants were within the scope of

their authority and were per-

formed in good faith, 'reason-

ably believing their actions to

be legally valid and proper.'

{defendants were properly granted

summary judgment] ... ." See

also, Mark v. Groff, 521 F.2d

1376, 1379-1380 (9th Cir. 1975).

(B) The Purpose of the Rule.

The purpose of the rule granting execu-

tive officials a qualified immunity against

civil rights actions relates to the concept

that public officials should not be unduly

inhibited in the performance of official

duties. Scheuer v. Rhodes, supra, ampli-

fied this postulate, 94 S. Ct. at 1688:

"This official immunity

apparently rested in its gene-

sis, on two mutually dependent

rationales: (1) the injustice,

particularly in the absence of

bad faith, of subjecting to

liability an officer who is

required by the legal obliga-

tions of his position, to

exercise discretion; (2) the

29

danger that the threat of such

liability would deter his will-

ingness to execute his office

with the decisiveness and the

judgment required by the public

good."

The Supreme Court further remarked, 94

S. Ct. at 1689:

",.. it is important to note,

even at the outset, that one

policy consideration seems to

pervade the analysis: the pub-

lic interest requires decisions

and action to enforce laws for

the protection of the public.

Mr. Justice Jackson expressed

this general proposition suc-

cinctly, stating 'it is not a

tort for government to govern.'

Dalehite v. United States, 346

U.Se -sn, BI, ta Bs Gos Boe, FTP,

97 L. Ed. 1427 (1953) (dissenting

opinion). Public officials,

whether governors, mayors or

police, legislators or judges,

who fail to make decisions when

they are needed or who do not

act to implement decisions when

they are made do not fully and

faithfully perform the duties of

their offices. Implicit in the

idea that officials have some

immunity -- absolute or quali-

fied -- for their acts, is a

recognition that they may err.

The concept of immunity assumes

this and goes on to assume that

30

it is better to risk some error

and possible injury from such

error than not to decide or act

Oe Rhos eve.”

Barr v. Matteo, 360 U.S. 564, 79 S.

Ct. 1335, 3 L. Ed.2d 1434 (1959), which

did not arise under the Civil Rights Act,

served as a harbinger of Scheuer v. Rhodes,

supra and established that the doctrine of

immunity applies to lower echelon executive

officers. In Barr v. Matteo, supra, 79

S. Ct. at 1339, the court said:

"The reasons for the recog-

nition of the privilege have

been often stated. It has been

thought important that officials

of government should be free to

exercise their duties unembarras-

sed by the fear of damage suits

in respect of acts done in the

course of those duties -- suits

which would consume time and

energies which would otherwise

be devoted to governmental serv-

ice and the threat of which might

appreciably inhibit the fearless,

vigorous, and effective adminis-

tration of policies of government.

"

31

Again, the court commented, 79 S. Ct. at

1340:

"We do not think that the

principle announced in Vilas

[Spalding v. Vilas, 161 U.S.

463, 46 3. Ct. Gaz, 40 Li. Ed.

780 (1896)] can properly be

restricted to executive officers

of cabinet rank, and in fact it

never has been so restricted by

the lower federal courts. The

privilege is not a badge or emolu-

ment of exalted office, but an

expression of a policy designed

to aid in the effective function-

ing of government. The complexi-

ties and magnitude of governmental

activity have become so great

that there must of necessity be

a delegation and redelegation of

authority as to many functions,

and we cannot say that these

functions become less important

simply because they are exercised

by officers of lower rank in the

executive hierarchy.

"To be sure, the occasions

upon which the acts of the head

of an executive department will

be protected by the privilege

are doubtless far broader than

in the case of an officer with

less sweeping functions. But

that is because the higher the

post, the broader the range of

responsibilities and duties, and

the wider the scope of discretion,

32

it entails. It is not the title

of his office but the duties

with which the particular officer

sought to be made to respond in

damages is entrusted -- the rela-

tion of the act complained of to

‘matters committed by law to his

control or supervision,' Spalding

v. Vilas, supra, 161 U.S. at

p. 498, 16 S. Ct. at p. 637, =-=-

which must provide the guide in

delineating the scope of the

rule which clothes the official

acts of the executive officer

with immunity from civil defama-

tion suits."

Perhaps Judge Learned Hand's trenchant

comments in Gregoire v. Biddle, 177 F.2d

579, 581 (2nd Cir. 1949), cert. denied,

339 U.S. 949, 70 S. Ct. 803, 94 L. Ed.

1363 (1950), best express the underlying

rationale:

"It does indeed go without

saying that an official, who is

in fact guilty of using his powers

to vent his spleen upon others,

or for any other personal motive

not connected with the public

good, should not escape liability

for the injuries he may so cause;

and, if it were possible in prac-

tice to confine such complaints

sled

33

to the guilty, it would be mon-

strous to deny recovery. The

justification for doing so is

that it is impossible to know

whether the claim is well

founded until the case has been

tried, and that to submit all

officials, the innocent as well

as the guilty, to the burden of

a trial and to the inevitable

danger of its outcome, would

dampen the ardor of all but the

most resolute, or the most ir-

responsible, in the unflinching

discharge of their duties. Again

and again the public interest

calls for action which may turn

out to be founded on a mistake,

in the face of which an official

may later find himself hard put

to it to satisfy a jury of his

good faith. There must indeed

be means of punishing public

officers who have been truant to

their duties; but that is quite

another matter from exposing

such as have been honestly mis-

taken to suit by anyone who has

suffered from their errors. As

is so often the case, the answer

must be found in a balance be-

tween the evils inevitable in

either alternative. In this

instance it has been thought in

the end better to leave unredres-

sed the wrongs done by dishonest

officers than to subject those

who try to do their duty to the

constant dread of retaliation.

34

"The decisions have, indeed,

always imposed as a limitation

upon the immunity that the offi-

cial's act must have been within

the scope of his powers; and it

can be argued that official powers,

since they exist only for the

public good, never cover occasions

where the public good is not

their aim, and hence that to

exercise a power dishonestly is

necessarily to overstep its bounds.

A moment's reflection shows,

however, that that cannot be the

meaning of the limitation with-

out defeating the whole doctrine.

What is meant by saying that the

officer must be acting within

his power cannot be more than

that the occasion must be such

as would have justified the act,

if he had been using his power

for any of the purposes on whose

account it was vested in him.

uw

2. os

(C) Reliance on Qualified Legal Advice.

The courts have repeatedly held that

good faith reliance upon knowledge of current

law or upon a requested legal opinion satis-

fies the requirements for a qualified immu-

nity in 42 U.S.C. § 1983 actions. Scheuer

v. Rhodes, supra, 416 U.S. at 246; Oakley

v. City of Pasadena, 535 F.2d 503, 504-505

Beni eit stn

35

(9th Cir. 1976); Midwest Growers Co-Op.

Corp. v. Kirkemo, supra, 533 F.2d at 464;

Hutchison v. Lake Oswego School District

No. 7, 519 F.2d 961, 968 (9th Cir. 1975),

{vacated other grounds, 429 U.S. 1033, 97

S. Ct. 725, 50 L. Ed.2d 744 (1977)];

Handverger v. Harvill, 479 F.2d 513, 516,

(9th Cir. 1973), cert. denied, 414 U.S.

1072, 94 S. Ct. 586, 38 L. Ed.2d 478

(1973). Mr. Robinson acted in good faith

reliance upon a legal opinion issued by

the Attorney General of the State of

Oregon (R. pp. 429, 594-595) and plaintiff

does not contend that he acted without

legal advice (R. p. 524). Therefore, he

deserves qualified immunity.

(D) Summary Judgment Applies.

Courts should grant a summary judgment

to an executive officer in a civil rights

ted acini

36

action where the public official raises

the defense of immunity and the plaintiff

fails to controvert his good faith or rea-

sonable belief in the appropriateness of

his actions (R. pp. 592-596) as plaintiff

failed here. Midwest Growers Co-Op. Corp.

v. Kirkemo, supra, 533 F.2d at 464; Oakley

v. City of Pasadena, supra, 533 F.2d at

503; Milton v. Nelson, 527 F.2d 1158, 1160

(9th Cir. 1976); Burgwin v. Mattson, 522

F.2d 1213 (9th Cir. 1975), cert. denied,

423 U.S. 1087, 96 S. Ct. 879, 47 L.

Ed.2d 98 (1976).

3. The Concept of Absolute Immunity Pro-

tects a State Officer Acting as Con-

servator from 42 U.S.C. § 1983 actions.

Under the concept of absolute immunity,

a state official is entitled to summary

judgment upon a demonstration that he acted

racers cna ts tricia

37

within his scope of authority. Plaintiff

has produced no indication that Mr. Robinson

did not act as a trust officer for the

State VA and within the scope of his duty;

in fact, her pleading implies that he so

acted (R. pp. 423-424).

Ordinarily absolute immunity applies

only to judicial officers, see Pierson ve

Ray, 386 U.S. 547, 553-554, 87 S. Ct. 1213,

18 L. Ed.2d 288 (1967), but Holmes v. Silver

Cross Hospital of Joliet, Illinois, 340 F.

Supp. 125 (N.D. Ill. 1972) extended the

doctrine to conservators who act in a quasi-

judicial capacity. In Holmes v. Silver

Cross Hospital of Joliet, Illinois, supra,

the administratrix brought a 42 U.S.C. §

1983 action alleging violation of decedent's

civil rights by a court appointed conserva-

tor who authorized a blood transfusion

inconsistent with the decedent's religious

convictions.

vator's motion to dismiss saying, 340 F.

Supp.

38

at 130-131:

"The facts concerning the

order appointing Baron as con-

servator appear from the order

itself and from the complaint.

The State's Attorney of Will

County, Illinois, petitioned the

Will County Probate Court for a

conservator to be appointed for

the decedent after he had lost

consciousness (an incompetent is

defined in Illinois, inter alia,

as one incapable of managing his

person because of physical inca-

pacity...) ..- - The mMegistrate

declared the decedent an incompe-

tent and appointed Baron as his

conservator, the appointment

being 'for the purpose of con-

senting to surgery, blood trans-

fusions, medicine and drugs.'

. . The decedent, whether

rightfully or wrongfully, legally

or illegally, had been declared

an incompetent, had become a

ward of the court, ... and became

subject to the powers of the

conservator appointed by the

court.

"Baron was not appointed as

a general conservator or as an

estate conservator, but was speci-

fically appointed for the sole

purpose of consenting to surgery

The court granted the conser-

Ee

39

and blood transfusions. His

order of appointment, thus, was

made with specific directions as

to his course of conduct as a

conservator, giving him no discre-

tion. His liability should be

no greater or less than the judge

who appointed him.

Based upon its analysis, the court held

thet both the judge and the conservator

possessed immunity. By a parity of rea-

soning, Mr. Robinson, the trust officer of

Mr. Bury's court-appointed conservator, is

entitled to absolute quasi-judicial immu-

nity since his challenged actions relate

only to his acts pursuant to court-directed

duties.

Sykes v. State of California (Dept.

of Motor Vehicles), 497 F.2d 197 (9th Cir.

1975), supports the principle of extension

of absolute judicial immunity to executive

officers acting in a quasi-judicial capa-

city. In that case, the Ninth Circuit

extended immunity to the California

40

Department of Motor Vehicles and one of

its employees in a civil rights action

brought by an individual who had lost his

license to retail automobiles. In reaching

this result, the court articulated the

rule, 497 F.2d at 201:

"... [The plaintiff's] claims

against both Hoover and California's

Department of Motor Vehicles are

equally defective on the ground

of immunity. In Silver v. Dickson,

403 F.2d 642 (9th Cir. 1968),

our court held that immunity

extends not only to public

employees engaged in quasi-

judicial functions, such as

district attorneys, but also to

public employees acting within

the scope of their discretionary

duties and official functions.

Bennett v. People of the State

of California, et al., 406 F.2d

36, 39 (9th Cir. 1969); Hoffman

v. Halden, supra at 300 [268

F.2d 980 (9th Cir. 1959)]. Since

it was within Hoover's discre-

tionary power to grant or refuse

licenses to sell motor vehicles,

his motives are considered imma-

terial for purposes of suit under

the Civil Rights Statutes. Hoffman

v. Halden, supra at 300; Selico

v. Jackson, 201 F. Supp. 475,

478 (S.D. Cal. 1962). See O'Campo

oe ee ee ee

41

Vv. Hardisty, 262 F.2d 621 (9th

Cir. 1958); Cooper v. O'Connor,.

69 U.S. App. D.C. 100, 99 F.2d

135 (1938); Comment, Civil

Liability of Subordinate State

Officials Under The Civil Rights

Acts and the Doctrine of Official

Immunity, 44 Calif. L. Rev. 887

(1956); Note, The Doctrine of

Official Immunity Under the

Civil Rights Acts, 68 Harv. L.

mes Beee Gewese fs we ™

Mr. Robinson's acts partake of a judi-

cial nature. The court charged the State

VA (and hence, Mr. Robinson) with the duty

of protecting the assets of a protected

person. Plaintiff charges a violation of

her civil rights during the performance of

that duty. Public policy requires appli-

cation of the doctrine of absolute immunity.

Plaintiff attempts to concoct all

manner of “conflicts" between the Ninth

Circuit opinion and the decisions of this

court and earlier cases emanating from the

Court of Appeals. Her attempts fail. The

grant of summary judgment deprives no one

42

of a right to a jury trial because the

adverse party, by definition, has failed

to present a genuine issue of material

fact for jury resolution. Any other rule

would clog the courts. This Brief in op-

position demonstrates that plaintiff has

lost no right and has suffered from no

conspiracy. Any contrary rule would

deprive state officials of the necessary

breadth of action which enables them to

Carry out their duties. All Courts acted

impartially and correctly so there exists

no need to invoke the power of supervision.

In reality, plaintiff is disappointed

because she lost a divorce case and because

the state officials found her performance

of the fiduciary duties wanting. Having

exhausted the appeal procedures provided

by state law Bury v. Bury, supra, 24 Or.

App. 775, 546 P.2d 1102 (1976) Sup. Ct. review

43

denied (1976), Plaintiff persists in wasting

the time ot an overworked federal court

system with a feigned complaint of a viola-

tion of her civil rights. There exists no

reason to proceed any longer with this

case.

CONCLUS ION

The Ninth Circuit correctly affirmed

the District Court and granted summary

judgment to both defendants because, as

state officials acting reasonably, in good

faith, and in the scope of their authority,

they are entitled to either absolute judi-

cial immunity or, at the least; qualified

executive immunity. In addition, the law

does not permit Mr. Saalfeld to be held

44

responsible under a theory of respondeat

superior. The writ should be denied.

Respectfully submitted,

SOUTHER, SPAULDING, KINSEY,

WILLIAMSON & SCHWABE

RIDGWAY K. FOLEY, JR.

By:

RIDGWAY K. FOLEY, JR.

of Attorneys for Respondents

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