Petition — Edgar v. Washington

Ruprome Court, UR. Wg

FILED

is DEC 10 1979

IN THE SUPREME COUR ES” 20%

OF THE UNITED STATES

October Term 1979

Wa Ge 89 &

No.

JOHN D. EDGAR and JOYCE EDGAR,

husband and wife,

Petitioners,

V.

STATE OF WASHINGTON,

Respondent.

_ PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF WASHINGTON

WILLIAM J. POWELL

BRYAN P. HARNETIAUX

SHEILA A. MALLOY, Associate

1016 Washington Trust Financial Ctr.

Spokane, Washington 99204

(509) 624-5196

Attorneys for Petitioners

December 11, 1979

No.

IN THE SUPREME COURT

OF THE UNITED STATES

October Term 1979

No.

JOHN D. EDGAR and JOYCE EDGAR,

husband and wife,

Petitioners,

v.

STATE OF WASHINGTON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF WASHINGTON

WILLIAM J. POWELL

BRYAN P. HARNETIAUX

SHEILA A. MALLOY, Associate

1016 Washington Trust Financial Ctr.

Spokane, Washington 99204

(509) 624-5196

Attorneys for Petitioners

December 11, 1979

TABLE OF CONTENTS

Page

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PE Ae MAN RRND Sa keno wow dhe Koos ewes l

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Constitutional and Statutory Provisions Involved ...... 2-4

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RD PR Or pee aN ee ae eye Te 12-13

Appendix “A”

Opinion of Washington Supreme Court........... 14-27

Appendix “B”

Order denying petitioners’ motion

See NI 5 oo x ene bac ancTevecndcxes 28-29

TABLE OF CASES

Chandler v. Dix,

Se UD, Se Cee stinks neenh aman eee 10

Confederated Tribes of Colville v. State of Washington,

446 F. Supp. 1339 (E.D. Wash. 1978)............. 10

Edelman v. Jordan,

S53 U.S. GEC CeO! 6 unavanisatadiekcslemeeee 11

Griswold vy. Connecticut,

358 UD. SIP RPE 404600 ncncdeea ema 12

Hutto v. Finney,

437 U.S. GOS (00D 5o010cxsenaecnlepetasneweas 10

Monell v. Dept. of Social Services,

456 USD. GE GI bnnickasthaceaateeee 10

Petty v. Tennessee-Missouri Bridge Comm’n,

559 U.S. 27S (EEG 2 45-5502 ae 10

Quern vy. Jordan,

US. (ESTE) « ..0asacyeengneeen eee 10,11

OTHER

48 U.S.C. 129%3) « os: «0100000 eeeeee l

42 U.S.C. 108 .....0.sasusseice see 3,4, 10

42 U.S.C. 1963 564. sscnswelen eee 1,2,4,9-10,11,12

ROW 492.008... .05006skénaenny eee 3,12

ROW 4.972.190... .<005ecneww alee 3

Og Rh A rrr ere re eee re ee

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ES ES Pe ee ee eee

Air Force Manual 35-10, Sec. 1-12(2)..............002.

Article X, Sec. 2, Washington State Constitution.......

5-6

The petitioners JOHN D. EDGAR and JOYCE

EDGAR respectfully pray that a Writ of Certiorari issue to

review the opinion of the Supreme Court of the State of

Washington entered in this proceeding on May 24, 1979.

OPINIONS BELOW

The opinion of the Washington Supreme Court,

reported at 92 Wn.2d 217, appears as Appendix “A”. The

Washington Court's order denying petitioners’ motion for

reconsideration appears at Appendix “B”.

JURISDICTION

The opinion of the Supreme Court of the State of

Washington was entered on May 24, 1979. A timely

motion for reconsideration was denied on September 12,

1979, and this petition for certiorari was filed within 90

days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. Sec. 1257 (3).

QUESTIONS PRESENTED

|. Whether the State of Washington, which has

statutorily abrogated the doctrine of sovereign immunity,

is a “person” within the meaning of 42 U.S.C. Sec. 1983

and subject to an action brought in the courts of the State

of Washington, rather than in federal court, for violations

of 42 U.S.C. Sec. 1983?

2. Whether the State of Washington may. by reason ol

Its status as supervisor of the Washington Air National

Guard, declare itself immune from suits by guardsmen

alleging tortious interference with or denial of federal

Constitutional rights?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Eleventh Amendment, United States Constitution:

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

Fourteenth Amendment, United States Constitution:

Section |...No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

The Civil Rights Act of 1871, 42 U.S.C. Sec. 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage of any State

or Territory, 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 Washington law governing actions against the state

provides in pertinent part:

RCW 4.92.090 Tortious conduct of state— Liability

for Damages

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 4.92.150 Compromise and Settlement of

Claims by Attorney General

After commencement of an action in a court of

competent jurisdiction upon a claim against the state,

or any of its officers or employees arising out of

tortious conduct “r pursuant to 42 U.S.C. Sec. 1981 et

seq., the attorney general...may compromise and

settle the same and stipulate for judgment against the

state, the affected officer or employee.

RCW 4.92.160 Payment of Claims and Judgments

Payment of claims and judgments arising out of

tortious conduct or pursuant to 42 U.S.C. Sec. 1981 et

seq. shall not be made by any agency or department of

the state government with the exception of the budget

director, and he shall authorize and direct the

payment of the moneys only from the tort claims

revolving fund whenever:

(2) The clerk of the court has made and forwarded a

certified copy of a final judgment in a court of

competent jurisdiction and the attorney general

certifies that the judgment is final and was entered in

an action on a claim arising out of tortious conduct or »

under and pursuant to 42 U.S.C. 1981 et seq. Payment

of a judgment shall be made to the clerk of the court

for the benefit of the judgment creditors. Upon receipt

of payment, the clerk shall satisfy the judgment

against the state.

RCW 4.92.170 Payments Charged to Agencies and

Departments...

Liability for and payment of claims arising out of

tortious conduct or under and pursuant to 42 U.S.C.

Sec. 1981 et seq. is declared to be a proper charge as

part of the normal cost of operating the various

agencies and departments of state government whose

operations and activities give rise to the liability anda

lawful charge against moneys appropriated or

available to such agencies and departments.

STATEMENT OF THE CASE

1. Nature of the proceedings:

Petitioners John D. and Joyce Edgar filed a complaint in

the Superior Court for the State of Washington alleging

tortious conduct and a violation of constitutional and civil

rights on the part of the State of Washington.

The Edgars alleged that their civil rights were violated

under color of state law in violation of 42 U.S.C. Sec. 1983

and that the State was liable for the constitutional torts of

its employees—officers in the Washington Air National

Guard. The state law governing the Washington Air

National Guard includes RCW ch. 38.40 and Article X,

Sec. 2, of the Washington State Constitution.

The Edgars’ complaint was dismissed following the trial

court’s granting of the State’s motion for judgment on the

pleadings on the grounds that (1) the State of Washington

is not a “person” under 42 U.S.C. Sec. 1983 and (2) the

Superior Court lacked jurisdiction over the subject matter

of the action because the doctrine of sovereign immunity

protected the State from any attempt to impose liability for

the tortious or unconstitutional actions of its militia, the

Washington Air National Guard.

Because no evidence was received by the trial court, the

Edgars, pursuant to Washington law, presented their

appeal to the Washington Supreme Court on a

hypothetical statement of facts.

2. Statement of Facts:

A summarization of the following hypothetical

Statement of facts is set forth in the opinion of the

Washington Supreme Court, App. “A”.

In 1970 John D. Edgar, a captain, began active duty asa

member of the Washington Air National Guard. In 1971 he

was granted a security clearance so that he could

participate in the Guard’s Human Reliability Program, a

program establishing the requirements and responsibilities

for screening, selection and continuous evaluation of

personnel who controlled, handled, or had access to

nuclear weapons.

In July 1973, Lt. Col. Main, an employee of the

Washington Air National Guard, called Edgar into his

office and shouted that Edgar’s hair did not meet Main’s

expectations. The grooming standards in effect for

members of the Guard were set forth in the Air Force

Manual 35-10 at section 1-12(2), as follows:

Hair will be neat, clean, trimmed, and present a

groomed appearance. Hair will not touch the ears or

the collar except the closely cut hair on the back of the

neck. It will present a tapered appearance. Hair in

front will be goomed so that it does not fall below the

eyebrows and will not protrude below the band of

properly worn headgear. In no case will the bulk or

length of the hair interfere with the proper wear of any

Air Force headgear. The acceptability of a member’s

hair style will be based upon the criteria in this

paragraph and not upon the style in which he chooses

to wear his hair.

Between July 1973 and March 1974 Mr. Edgar’s hair

conformed to the standards set forth in the above-quoted

section.

In September 1973, Main and Lt. Col. Christoffersen,

an officer with the Washington Air National Guard,

informed Edgar that they were not “personally satisfied

with (his) haircut” and that if he did not get a haircut

similar to their own very short hair, he would be relieved

from alert duty in the Human Reliability Program on the

basis that he was unreliable.

The regulations governing removal from the program

did not authorize the supervisor of any participant in the

Human Reliability Program to relieve such participant

from all Cuard duty, but only from “nuclear weapons

duty.”

On September 12, 1973, Christoffersen and Main,

accompanied by Lt. Col. Seagraves, advisor to the Guard

unit at Spokane, called Edgar in from alert duty and told

him that he must get a “burr G.I.” haircut or turn in his

area badge and go home without pay. They further told

him that if he did not return with his hair as short as theirs,

they would remove him from alert duty status as of that

day.

The officers further told Mr. Edgar that their

conversations with him were considered to be “classified

information” and that if he discussed the matter with

anyone—including a lawyer—they would file a security

violation against him, subjecting him to court martial.

In an attempt to satisfy his superiors Edgar got a “burr

G.I.” haircut.

In October 1973, believing that the proper method for

reporting alleged improper procedures and/or actions by

superiors with respect to haircut violations was to file an

Inspector General (1.G.) report, Edgar submitted an I.G.

report. One week later Lt. Col. Christoffersen asked Mr.

Edgar why he had filed the I.G. report and indicated that it

would “cost him” to use such a procedure. Christoffersen

then told Edgar that he was “unfit to be a member of the

Unit,” that he was not to be trusted or relied upon in time of

war because of his “backdoor policy of going to the I.G.’s

office and filing a report against the supervisors,” and that

his actions were eventually going to cost him his job and his

position.

Following a Guard drill weekend inspection on January

6, 1974, Edgar heard that he was to be cited for a haircut

violation. He conferred with his flight commander to ask if

he had a haircut discrepancy. Edgar was assured that his

hair was within acceptable standards. After the inspection

and on Main’s recommendation, Edgar was found in

violation of the haircut standards.

During the winter of 1973-74, both Mr. and Mrs. Edgar

were repeatedly threatened, while Mr. Edgar was off duty,

with Mr. Edgar’s expulsion from the Guard if he did not

change his attitude on the haircut issue.

On January 11, 1974, Edgar received a letter stating that

he was suspended from participating in the Human

Reliability Program for thirty days. His supervisor refused

to comment on the reason for the suspensicn and stated

that he would make no comment on the reason for the

suspension other than that he felt confident that Edgar

would be permanently expelled from the Guard within the

thirty days. Edgar was later informed by Maj. Waldrop, an

officer in his squadron, that the thirty-day suspension was

based solely on the fact that he did not have “a G.I. type

crewcut” as the supervisors preferred.

On February 5, 1974, Mr. Edgar was ordered to report

for a psychiatric examination. They psychiatrist indicated

that persons from the Guard had contacted him and had

presented slanted overviews of Edgar prior to the

examination date. The psychiatrist told Edgar that he

wanted Edgar to understand that he would not be a part

“of a coercion of individuals set on drumming (Edgar) out

of flying duty.” The psychiatrist subsequently sent a

favorable report to the Guard Unit.

Despite the psychiatrist’s report, the Unit supervisors, in

March, 1974, extended Edgar’s suspension to six months.

The State initially suspended Edgar from the Human

Reliability Program under the erroneous impression that it

had the authority and power to reinstate him to the

program. This is evidenced by the Guard’s issuance to

Edgar, in March 1974, of a new security clearance with

instructions by the State officers to return to his duties.

Shortly thereafter, while Edgar was preparing to rejoin the

unit, the same state officers told him that only the federal

government, not the State could authorize his rein-

statement, and that Edgar would remain “suspended” until

such time as he was reinstated pursuant to federal (Air

Force) orders. Edgar had duties separate and distinct from

those associated with the Human Reliability Program

which were also impaired, without authority or

justification, when Edgar was initially removed from the

Human Reliability Program.

Based on the above facts, Mr. and Mrs. Edgar filed a

complaint alleging multiple, and in some instances

overlapping and/or inconsistent claims for relief in the

State Superior Court for Spokane County. Edgar asked

that the State be found liable for the injuries suffered in the

way of lost wages, mental and emotional distress which

directly resulted from the acts of the State’s employees.

Because Washington law makes military officers

immune from civil liability for “any act or acts done by

them” while on active duty, RCW 38.40.010, the Edgars

did not name the individual officers as defendants in this

action.

In affirming the trial court’s dismissal of the Edgars’

complaint, the Washington State Supreme Court

determined that the State is not suable under 42 U.S.C.

Sec. 1983 for acts of its agents which subjected the Edgars

to deprivation of their civil rights and that the State could

not be liable for tortious conduct and constitutional

violations inflicted upon Air National Guardsmen because

no analogous action could arise under the common law.

REASONS FOR GRANTING THE WRIT

By statute, Washington State has waived its immunity

from certain actions against the State in State courts.

RCW ch. 4.92. Actions brought pursuant to the provisions

of 42 U.S.C. Sec. 1981, et seq., are included among those

actions in which Washington statute provides that the state

is a proper defendant.

Petitioners recognize that this waiver does not extend to

actions brought in federal court, Petty v. Tennessee-

Missouri Bridge Comm’n, 359 U.S. 275 (1959); Chandler v.

Dix, 194 U.S. 590 (1904); Confederated Tribes of Colville

v. State of Washington, 446 F. Supp. 1339 (E.D. Wash.

1978), but submit that the Washington Supreme Court

misconstrued this Court’s recent cases with respect to a

state’s liability in state court for violations of 42 U.S.C.

Sec. 1983, in states which have abrogated the doctrine of

sovereign immunity.

Between the time that the trial court dismissed the

Edgars’ complaint and the time that the Washington

Supreme Court rendered its opinion in this case, this Court

decided the Monell v. Department of Social Services, 436

U.S. 658 (1978), Hutto v. Finney, 437 U.S. 678 (1978), and

Quern v. Jordan, U.S. (1979), cases discussing the

liability of governmental entities under 42 U.S.C. Sec.

1983.

I]

The Washington court interpreted the Quern case’s

affirmance of Edelman y. Jordan, 415 U.S. 651 (1974), to

exclude states from the liability imposed by 42 U.S.C. Sec.

1983, even where Eleventh Amendment considerations are

not present, and found that the State of Washington was

not suable—in either federal or state courts—under 42

U.S.C. Sec. 1983.

The Edgars’ case is significant in that it seeks further

clarification of this Court’s most recent interpretations of

42 U.S.C. Sec. 1983, and asks the Court to determine

whether the State of Washington, having abrogated the

doctrine of sovereign immunity, may be named as a

defendant in a Sec. 1983 action which is brought in state

court, where no Eleventh Amendment considerations are

present.

The Washington court, in affirming the dismissal of the

Edgars’ case, also held, under a theory akin to “military

immunity,” that the Edgars were barred from suing the

State for the tortious conduct and constitutional violations

of its agents. This decision is in direct conflict with the

Supremacy Clause in Article VI of the United States

Constitution.

In holding that the common law relationship of master

and servant strictly applied to Air National Guardsmen

and their employer-state, the Washington court failed to

consider the State’s involvement as significant. The

Washington court found that because the allegations upon

which the Edgars’ claims were based could not have given

rise to an action against an employer at common law they

12

could not give rise, under RCW 4.92.090, to an action

against the State of Washington in the Edgars’ case.

Petitioners Edgar recognize that a private employer

could not be found liable under the common law for the

constitutional torts of itself or its agents, unless state action

were determined to be present. Where the state itself is the

employer, however, and where its agents are acting

pursuant to state law when they violate the federal

constitutional rights of a state employee, the state cannot

be allowed to deny the injured employee an opportunity to

proceed to trial on his federal constitutional claims.

The rights guaranteed by the Constitution of the United

States must be enforceable to be effective, regardless of a

State’s interpretation of its own law. Griswold v.

Connecticut, 381 U.S. 479 (1965).

The Washington court’s refusal to provide the Edgars with

an opportunity to prove their allegations of federal

constitutional violations is a usurpation by the State of a

right guaranteed by the United States and a violation of the

Supremacy Clause of the federal constitution.

The effect of the Washington court’s decision was to

deny the Edgars a remedy for the wrongs to which they

were subjected. The Civil Rights Act of 1871, at 42 U.S.C.

Sec. 1983, and the Constitution of the United States

provide a remedy which the State of Washington has

refused to recognize.

CONCLUSION

On the basis of the foregoing it is respectfully requested

13

that this Court issue a Writ of Certiorari in this case.

Respectfully submitted,

WILLIAM J. POWELL

BRYAN P. HARNETIAUX

SHEILA A. MALLOY, Associate

1016 Washington Trust Financial Ctr.

Spokane, Washington 99204

Attorneys for Petitioners

->.

hd

APPENDIX “A”

IN THE SUPREME COURT

OF THE STATE OF

WASHINGTON

JOHN D. EDGAR and JOYCE EDGAR,

husband and wife,

Appellants,

V.

THE STATE OF WASHINGTON,

Respondent.

No. 45921

EN BANC

This is an action for damages which the plaintiffs claim

to have suffered in the amount of $100,000, as a result of

the plaintitf husband’s having been suspended from certain

assignments of duty in the Washington Air National

Guard (WANG). The Superior Court dismissed the

complaint on the defendant’s motion for judgment on the

pleadings.

The complaint alleged in substance that the plaintiffs

had suffered mental distress and humiliation as a result of

intimidation, harassment and threats improperly inflicted

upon the plaintiff husband (hereafter plaintiff) by his

superior officers, and that these officers had used improper

disciplinary and penal sanctions against the plaintiff. It

alleged that these actions constituted arbitrary and

15

capricious conduct, outrageous conduct, intentional

infliction of emotional distress, invasion of privacy,

invasion of civil rights, and a violation of guaranteed state

and federal constitutional rights.

Pursuant to Brown v. MacPherson’s, Inc., 86 Wn.2d

293, 545 P.2d 13 (1975), wherein we held that a complaint

cannot be dismissed upon a motion for judgment on the

pleadings if there is any conceivable set of facts which

would support it, the plaintiff hypothesizes facts which he

asserts he can prove at trial. They can be summarized as

follows:

In 1970 the plaintiff, a captain, began active duty as

a WANG officer at Spokane. During his 5 years with

the Guard, he also performed other duties. In 1971 he

was given a security clearance and allowed to fly “air

alert,” which involved handling or control over

nuclear weapons under a program prescribed by the

United States Air Force. The program required

screening, selection and continuous evaluation of all

personnel, who were required to be physically sound

and emotionally stable and to demonstrate good

judgment and professional competence. The officer

responsible for implementing the program was given

the authority and means to immediately remove from

nuclear weapons duties any individual whom he

suspected of being unreliable. Daily assessment of

individuals by their peers and immediate supervisors

was directed, and certain criteria were given for

determining reliability.

Further provisions, all found in the then current Air

Force Manual, declared that failure to qualify for the

program or remain qualified should not be used as a

ground for punitive action, and the regulations with

respect to this program did not authorize a supervisor

16

to relieve a participant from all National Guard duty,

but only from nuclear weapons duty.

Another section of the manual prescribed accept-

able haircuts.

In 1973 the plaintiffs supervisors expressed

dissatisfaction with his haircut. Thereafter, in spite of

the fact that he had his hair cut to the length

prescribed in the manual, and at one time secured a

“burr” cut, they continued to harass him because his

hair did not conform to their standards. He was

reprimanded for consulting a civilian attorney about

the matter and for filing a report with the Inspector

General. He was threatened with suspension from the

air alert program and even possible court martial and

dismissal from the Guard. He was accused by his

squadron commander of having sent the commander

an anonymous “sick” letter which he had not written.

In January 1974, the plaintiff was handed a letter

advising him that he was suspended from partici-

pation in the nuclear weapons program for 30 days.

He was ordered to report for a_ psychiatric

examination upon which he received a favorable

report. In spite of this, his suspension was extended to

6 months. But in March 1974, he received from

National Guard authorities a new security clearance

and instructions to return to his duties. As he was

preparing to do so, he received notice that only the

federal government could authorize his reinstatement

and that his supension would have to remain in effect

until he received reinstatement orders from the United

States Air Force.

Due to his suspension from the nuclear weapons

program and impairment of other duties, the

plaintiff's pay was reduced. As a result of the conduct

of his superior officers, he and his wife suffered mental

and emotional distress.

17

The plaintiff makes no contention that the actions taken

against him and treatment accorded him by his superiors

were authorized or condoned by state statutes, policies,

regulations, or customs, or that the officers’ actions were

controlled by state law. Rather his contention is that these

acts were contrary to or in excess of the authority conferred

on the officers under the federal regulations found in the

Air Force Manual. Nevertheless, he contends that because

che National Guard is, officially at least, under the control

of the State and the federal program is administered by the

State, the State should be liable for negligent or intentional

acts of the officers who administer that program, when

those acts result in harm to other members of the Guard.

He further contends that the acts of his superiors were

tortious, entitling him to the recovery of general damages

for emotional distress.

The Superior Court’s dismissal of the action was

grounded upon its conclusion (1) that section 1983 of the

Civil Rights Act (42 U.S.C. § 1983) does not authorize suits

against states, and (2) that RC W 4.92.090, under which the

State of Washington has consented to be sued for its

tortious conduct, was not intended to authorize damage

suits by members of the National Guard for alleged torts of

other guardsmen. These are the two statutes upon which

the plaintiff relies as authority for bringing the action.

With respect to section 1983, the Superior Court’s

conclusion was in accord with the decision of the United

States Supreme Court in Quern v. Jordan, 47 U.S.L.W.

4241 (Mar. 5, 1979). It was there held that the Congress of

1871, in adopting a provision which is now section 1983,

did not intend to subject the states to liability under the act,

18

since such liability would have deprived them of the

immunity from suits in federal courts which is provided in

the eleventh amendment to the United States Constitution.

The plaintiff argues that Congress may nevertheless have

intended to permit such suits in state courts. However, he

points to no language of the act which would justify such

an interpretation. Section 1983 subjects to liability any

person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or

Territory, 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...

The question before the court in Quern, as Justice

Brennan’s dissent quite clearly points out, was whether the

word “person” as used in this statute included states. It is

the inescapable holding of the court that it did not. That

holding affirmed the earlier case of Edelman v. Jordan, 415

U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974), and

removed any doubt cast upon the question in Monell v.

Department of Social Servs., 436 U.S. 658, L. Ed.

2d, S. Ct. (1978), wherein the court had found,

reversing prior holdings, that the Congress did not intend

to exclude municipal corporations from the coverage of

the act.

As these cases reveal, the legislative purpose in enacting

section 1983 was to provide a remedy for the crimes

committed by the Ku Klux Klan against persons who

attempted to exercise their newly acquired right to vote

and other civil rights, and persons who aided them in that

exercise; and that remedy was to be available where state

19

laws purported to protect civil rights but were ignored by

those charged with the duty of enforcing them. Where state

statutes denied civil rights, the courts would declare the

acts unconstitutional and restrain their enforcement, a

procedure which did not invade Eléventh Amendment

immunity. Those for whose protection the statute was

designed were thus afforded a remedy against the State, if

its legislature enacted unconstitutional laws,! and against

individuals (and now municipalities) where their acts

interferred with the exercise of civil rights.

Inasmuch as the State is not suable under section 1983

for acts of its agents subjecting the plaintiff to deprivation

of his civil rights, the remedy for such deprivation, if such

there was, must be pursued against those individuals who

committed the acts.

The remaining question is whether the plaintiff can

maintain this action against the State upon a tort theory,

under RCW 4.92.090, which 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.

In construing this statute, we have said that the official

conduct giving rise to liability must be tortious, and it must

'See Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441

(1908) (a federal court may enjoin a state to conform its future conduct

to the requirements of federal law).

20

be analogous, in some degree at least, to the chargeable

misconduct and liability of a private person or

corporation. Evangelical United Brethren Church v. State,

67 Wn.2d 246, 407 P.2d 440 (1965). We have held that the

act excludes suits founded on discretionary governmental

actions, as such actions are defined by this court. Mason v.

Bitton, 85 Wn.2d 321, 534 P.2d 1360 (1975). In our

disposition of this case, we need not concern ourselves with

that exclusion. The question is, Does the plaintiff seek to

hold the State liable “to the same extent as if it were a

private person or corporation” or does he seek to impose

upon it a liability which has no parallel in the private

sector? The Superior Court, holding that the internal

management of military affairs is an activity which is

unique and not comparable to any private activity, based

its decision upon Feres v. United States, 340 U.S. 135, 95 L.

Ed. 152, 71 S. Ct. 153 (1950), which was cited in Wark v.

National Guard, 87 Wn.2d 864, 557 P.2d 844 (1976).

In Wark, we held that RCW 38.40.010-.030 provides the

exclusive remedy for National Guardsmen wounded,

killed or disabled in the line of duty. In interpreting our

statutes, we noted the similarity of RCW 4.92.090 to the

federal tort claims procedure act, 28 U.S.C. §§ 2671-2680

(1970), and the fact that the federal government providesa

compensation system for members of the military similar

to that which is provided in this state for guardsmen. We

cited Feres v. United States, supra, wherein the United

States Supreme Court had held that it was not the intent of

Congress to provide an additional remedy for those whose

claims were already expressly provided for in another

Statute.

21

The high court in Feres had also said that the military

activities of government are so unique that there is no

comparable function in the private sector and thus no

common law action in which a private person would be

liable under similar circumstances. We did not cite that

aspect of the opinion, and expressly found the exploration

of the question unnecessary to the decision.

The three plaintiffs in Feres based their claims on alleged

negligence of military personnel. One represented a soldier

who had died in a barracks fire and the other two were

victims of medical malpractice in army hospitals. While the

Supreme Court observed that, in the usual civilian doctor-

patient relationship, there isa liability for malpractice, and

that a landlord would be liable to a tenant if an injury

occurred as a result of a negligently maintained heating

plant, it declared that because there is no aspect of civilian

life which is comparable to the miltary, there were no

similar circumstances under which a private person would

be liable.

In a footnote at page 141, the court drew attention to

Dinsman v. Wilkes, 53 U.S. (12 How.) 389 (1851), wherein

it had said that a soldier may recover damages against his

superior officer for a willful and malicious injury inflicted

upon him by that officer. This is the general rule stated in

54 Am. Jur. 2d Military & Civil Defense § 294 (1971). And

see Annots., 135 A.L.R. 10, 27 (1941); 158 A.L.R. 1462

(1945). In all of the cases where recovery was permitted, the

actions were brought against the officers who committed

the acts. And in all of them, the injury was of a kind which

would have been compensable had it been inflicted by a

private individual.

22

The Supreme Court in Feres did not indicate whether, if

the injuries in the cases before it had been intentionally

inflicted, it would have taken a different view of the

government’s liability under the federal tort claims

procedure act. However, in a later case, recovery was

permitted to an inmate of a federal prison for personal

injuries suffered through the negligence of a government

employee. The court noted that the federal government is

not liable for the intentional torts of its employees, citing

28 U.S.C. § 2680(h).

It appears that at the time Feres was decided. the court

regarded the internal administration of the military as

being beyond the scrutiny of the judiciary. Reaves y.

Ainsworth, 219 U.S. 296, 55 L. Ed. 225, 31 S. Ct. 230

(1911), was still its definitive pronouncement upon the

subject. But 3 years after Feres the court decided, in the

landmark case of Burns v. Wilson, 346 U.S. 137, 97 L. Ed.

1508, 73 S. Ct. 1045 (1953), that basic constitutional

guarantees, such as due process, apply to the military.

Since that time, there has been a growing body of federal

law according to members of the Armed Forces certain

limited rights of judicial review of actions seriously

affecting their interests. A number of law review articles,

written by lawyers in the military, reveal the steady

progress of judicial intervention and the growing

awareness by the military itself of the importance of

affording due process to its members. See e.g., Col. D.

Peck, The Justices and the Generals: The Supreme Court

and Judicial Review of Military Activities, 70 Mil. L. Rev.

| (1975); Maj. J. Wilkerson, Administrative Due Process

Requirements in the Revocation of On-Post Privileges, 73

Mil. L. Rev. 107 (1976); Lt. Col. R. Semeta.

23

Administrative Discharge of Officers and Airmen, 17 A.F.

L. Rev. 79 (1975); Capt. A. Haessig, The Soldier’s Right to

Administrative Due Process: The Right to be Heard, 63

Mil. L. Rev. | (1973). See also R. Rivkin, The Rights of

Servicemen (1972).

If the internal conduct of the military with respect to its

personnel is subject to some degree of judicial review, it

may well be argued that the government should also be

held liable for tortious acts of members of such agencies

toward each other. However, it appears that the federal

courts continue to adhere to the view that the government

is not liable under the federal tort claims procedure act for

injuries to servicemen which arise out of or are in the

course of activity incident to service. In Harten v. Coons,

502 F.2d 1363 (10th Cir. 1974), cert. denied 420 U.S. 963

(1975), a serviceman and his wife brought an action under

that act seeking to recover $50,000 for necessary costs of

raising and maintaining a child, which the wife conceived

and bore following a vasectomy operation performed upon

the husband by military personnel. This was evidently not

an injury contemplated under the federal statute providing

compensation for injured servicemen. The 10th Circuit

dismissed the action, citing Feres v. United States, supra.

See also cases cited at 502 F.2d 1365 n.6 (10th Cir. 1974)

and Hass v. United States, 518 F.2d 1138 (4th Cir. 1975).

We need not decide at this time whether the legislature,

in enacting RCW 4.92.090, intended to subject the State io

liability for injuries inflicted upon a member of the

National Guard by another member of the Guard, which

are not compensated under RCW 38.40.030. The statute

provides that the State shall be liable “for damages arising

<a

24

out of its tortious conduct to the same extent as if it were a

private person or corporation.” It is therefore incumbent

upon a person asserting a claim against the State to show

that the conduct complained of constitutes a tort which

would be actionable if it were done by a private personina

private setting. This the plaintiff here has failed to do.

Although he alleges that the conduct complained of

constitutes outrage, the intentional infliction of emotional

distress upon him and his wife, and the invasion of his

privacy, he draws no analogy between the conduct

complained of and any conduct of a private individual

which would be actionable.

It may be that a person hasa right to consult an attorney

about his relations with his superiors and that any attempt

on their part to dissuade him from doing so by means of

threats constitutes a tort.But we are shown no case so

holding. Nor are we shown any authority for the

proposition that it is tortious for one’s superiors to

threaten punitive actions if their orders are not followed or

to abuse their discretion in the assignment of duties.

Such acts if done by a private employer might

conceivably violate contract provisions or some statute

enacted for the protection of employees, but no such

violation is claimed here. It is the general rule that in the

absence of governing statutory or contractual provisions,

the right to suspend an employee is absolute. Yantsin v.

Aberdeen, 54 Wn.2d 787, 345 P.2d 178 (1959); Halliburton

v. Huntington, 20 Wn. App. 91, 579 P.2d 379 (1978). The

gist of the plaintiff's contention is that his superiors abused

their discretion. We know of no principle of law which

25

makes such abuse, in and of itself, tortious.

The wrongs of which the plaintiff complains are of the

type for which some redress can be obtained within the

military structure,” or through a section 1983 suit against

the persons who allegedly committed the acts, if indeed

those acts denied to the plaintiff his civil rights.

The only remedy provided under state law for a member

of the Guard who believes himself wronged by his

commanding officer is that of reporting the matter to a

superior officer, who is required to forward the complaint

to the Governor or Adjutant General. RCW 38.38.852.

The section does not expressly require any of these persons

to investigate the con. ‘nt or to provide relief for the

complaining guardsman. Federal law affords a more

satisfactory remedy. See 10 U.S.C. § 1552, providing a

procedure for the correction of military records, and the

assertion of claims incident thereto.

These procedures are available to guardsmen employed

in the federally controlled and financed WANG program.

Otherwise, their claims are cognizable by the courts only

through the remedies provided by law for judicial review of

administrative actions.? The extent to which courts will

inquire into the factual basis for a given military decision is

extremely limited. See 70 Mil. L. Rev. 1, 66-67 (1975). As

that article and others cited point out, it appears the federal

courts will review an alleged violation of a regulation only

2It appears from the plaintiff's allegations that his complaint to the

Inspector General resulted in some action being taken in his behalf, but

that an attempt to reinstate him in the nuclear weapons program was

thwarted by federal regulations.

26

if that regulation was designed for the protection of

individuals in the position of the person challenging it.4

These limitations are imposed in proper recognition of

the courts’ lack of experience and expertise in making

military judgments. The plaintiff's approach would have us

nullify such limitations by permitting him to submit his

case to a jury, which would not only be called upon to

construe the regulations but also to review the facts to

determine whether the plaintiff's superiors were justifed in

removing him from alert duty, an undertaking for which a

jury’s competence is surely no greater than that of a judge.

As we understand the plaintiff, he concedes that his suit

is unprecedented but believes that the wrongs allegedly

done him are ones for which the courts should create a

damage action. However, we are here concerned with a

State statute which we are not at liberty to extend beyond

‘See Olson v. National Guard, 160 Mont. 387, 503 P.2d 24 (1972).

The Montana Supreme Court in that case refused to take jurisdiciion

of a suit by an officer of the Air National Guard seeking to have his

transfer to the Air Reserve declared invalid, holding that because the

regulations involved were those of the United States Air Force. and the

statute a federal statute, no state law was involved and jurisdiction lay

in the federal courts. In the case before us. we do not reach this

question, inasmuch as the plaintiff is not seeking the remedy of judicial

review.

*Colonel D. Peck, in his article The Justices and the Generals: The

Supreme Court and Judicial Review of Military Activities, 70 Mil. L.

Rev. 1, 78 (1975), concludes that there are four general categories of

legal challenges to military administrative actions which are

reviewable: lack of jurisdiction of the person, violation of statutory

authority, violation of the military agency's own regulation (provided

it is intended primarily for the plaintiff's protection and makes that

protection mandatory), or violation of the constitution. Inno case that

has come to our attention have general damages, such as are claimed

here, been awarded.

27

the intent expressed in the act. The statute was not

designed to create new causes of action. LaPlante vy. State,

85 Wn.2d 154, 531 P.2d 299 (1975). As we said in

Evangelical United Brethren Church v. State, 67 Wn.2d

246. 407 P.2d 440 (1965), the statute does not render the

State liable for every harm that may flow from

governmental action, but only the harm which is the result

of tortious misconduct. Abuse of discretion on the part of a

supervisor, or his arbitrary and capricious conduct in the

making of duty assignments, do not, insofar as we have

been shown, fall into that category.

The judgment is affirmed.

28

APPENDIX “B”

THE SUPREME COURT

OF WASHINGTON

JOHN D. EDGAR and JOYCE EDGAR,

busband and wife,

Appellants,

V.

STATE OF WASHINGTON,

Respondent.

No. 45921

ORDER GRANTING MOTION TO RECALL

MANDATE AND DENYING MOTION FOR

RECONSIDERATION

(Spokane County No. 226719)

This matter having come on before the Court on

appellants’ Motion to Recall the Mandate, and the Court

having considered the motion and the supporting

affidavits of appellants and respondents, and the

appellants’ Motion for Reconsideration, and counsel for

appellants having indicated his intention to seek review of

this Court’s decision in the United States Supreme Court;

Now, therefore, it is hereby

ORDERED:

(1) The Motion to Recall the Mandate, issued on July 2,

1979, is granted, and the Clerk of the Superior Court of

Spokane County is directed to return the referenced

29

mandate to this Court.

(2) The filing of the Motion of Reconsideration as

attached to the Motion to Recall the Mandate is

authorized, and after due consideration by this Court is

denied.

DATED at Olympia, Washington, this 12th day of

September, 1979.

CHARLES T. STAFFORD

Acting Chief Justice