Amicus Curiae Brief — Antoine v. Byers & Anderson, Inc.

No. 91-7604

IN THE

Supreme Court of the United States

October Term, 1992

JEFFREY ANTOINE,

Petitioner,

v.

BYERS & ANDERSON, INC. AND

SHANNA RUGGENBERG,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE IN

SUPPORT OF PETITIONER

James A. Miller

(Counsel of Record)

Blair B. Burroughs

Carl A. Taylor Lopez

MILLS COGAN MEYERS

& SWARTLING

1000 Second Avenue

Seattle, WA 98104-1046

(206) 382-1000

Counsel for Amici Curiae

Johnathan and Karen Scott

aBCD Usage Pome see

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE .............cccccccsseeseeseeeeeseeees 1

| _ ETE 5

EEE a NE Sa a 5

SUMMARY OF ARGUMENT ..............ccccccsseseeseeseeeeeeeeees 18

eT siiihiiiitihindiiliariisiaitabtasincsideniniennnneaninsennnensinnnees 18

I. Ruggenberg is Entitled, At Most, to

I Se riiccceccssinssieonemiennatconeenesnemnee 18

Il. Any Immunity of Ruggenberg Does

Not Absoive Byers & Anderson

IE BEI coressscncescsonssiecssasanessessnscnesssessosanoonen 20

A. Under Any Immunity Analysis, Byers &

Anderson Cannot be Said to Have

Functioned in a Judicial Capacity................ 21

B. Any Immunity of Ruggenberg as an

Agent Does Not Extend to Byers &

Anderson as her Principal................00:100++ 24

a 34

i

TABLE OF AUTHORITIES

Cases:

Antoine v. Byers & Anderson, Inc.,

950 F.2d 1471, 1473-74 (9th Cir. 1991). .......passim

Babcock v. State, 116 Wn.2d 596, 809

Neen neees 28, 29, 32

Boyle v. United Technologies Corp.,

487 U.S. 500, 504 (1988) ..........cseceseseesceeeeees 30, 31, 32

Davis v. Harrod, 407 F.2d 1280, 1284

SE 27

Forrester v. White, 484 U.S. 219

ee 8 21, 23, 24

Guffey v. Logan, 563 F. Supp. 951

Ee 25, 26

Howard v. Lyons, 360 U.S. 593,

Ce 30

Miree v. DeKalb County, 433 U.S. 25,

ST 31

Owen v. City of Independence, 445 U.S. 622,

CL 33

Scott v. Byers & Anderson, Inc., et al —

Superior Court for the State of Washington

In and For Pierce County,

CauseNo. 88-2-09876-5............:cccccccceeeecesseceeeeeeeees 2,6

ii

Scott v. United States, 884 F.2d 1280

I i as 6, 8, 17

Smith v. Tandy, 897 F.2d 355 (8th Cir.),

cert. denied, 111 S. Ct. 177 (1990). .........ccccceeceeseee 19

Sundance Cruises Corp. v. American

Bureau of Shipping, 799 F. Supp. 363,

SOE DET, CHD concemnrnnsassmnaterenmnasiaines 28

Taplin v. Town of Chatham, 453 N.E.2d 421,

GD ln, CED cecceescserecssvecsensccenssimersinticiiniicatiasias 27

Waller v. State, 64 Wn. App 318, 333-34,

BBE Pd TTS (CIGIDD ncrcccccoccscsscccscscscscscsscesscsnsnssenes 29

Westfall v. Erwin, 484 U.S. 292, 295, (1988) .....34

Rules:

Cg RR 9

Statutes:

Restatement (Second) of Agency §

BET GOED conceccessssseunesnceniatenininmeamaneietnien 18, 28, 29

Other Authorities:

W. Prosser, The Law of Torts, § 69 (1971) ........ 26

No. 91-7604

IN THE SUPREME COURT OF THE UNITED STATES

February Term, 1993

JEFFREY ANTOINE,

Petitioner,

Vv.

BYERS & ANDERSON, INC., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Johnathan and Karen Scott respectfully move

for leave to file the attached brief amicus curiae in

support of the petitioner in this case. The consent of

the attorney for the petitioner has been obtained and is

attached. The consent of the attorneys for the

respondents was requested, but refused.

The interest of the Scotts in this case arises from

the fact that they and the respondents in this action are

parties to a lawsuit presently pending in the courts in

Washington State. Scott v. Byers & Anderson, Inc., et

al., Superior Court for the State of Washington In and

for Pierce County, Cause No. 88-2-09876-5. The subject

of that case is the failure of Shanna Ruggenberg to

record properly and to transcribe promptly the

proceedings of a federal trial in which the Scotts were

parties.

The central issue in Scott v. Byers & Anderson

is identical to the main issue before this Court, namely,

whether the respondents are entitled to absolute

judicial immunity from tort liability. It is probable that

the Court’s decision in this case will be determinative

of the Scotts’ rights in their state court lawsuit against

respondents. -

Petitioner Antoine in the Court of Appeals and

in his brief before this Court has focused his argument

on the question whether a court reporter is entitled to

absolute or qualified immunity for conduct in an

official capacity which violates constitutional rights. In

so doing, petitioner has essentially treated Shanna

Ruggenberg and Byers & Anderson, Inc., as one, even

though the Ninth Circuit Court of Appeals made

separate holdings immunizirg respondents from

liability. The brief which the Scotts as amici curiae are

requesting permission to file will contain a more

complete argument on the question whether

respondents should be treated as one. The brief is

intended to point out that there is a separate analysis

which should be applied to the question whether Byers

& Anderson, Inc., is entitled to any immunity. If this

argument is accepted, it would form a basis for finding

Byers & Anderson, Inc., subject to liability even if it is

held that Ruggenberg is absolutely immune from suit.

November 23, 1992.

Respectfully submitted,

A. Miller ae

(Cgunsel of Record)

Blair B. Burroughs

Carl A. Taylor Lopez

MILLS COGAN MEYERS

& SWARTLING

1000 Second Avenue

Seattle, WA 98104-1046

(206) 382-1000

Counsel for Amici Curiae

Johnathan and Karen Scott

5

No. 91-7604

IN THE SUPREME COURT OF THE UNITED STATES

February Term, 1993

JEFFREY ANTOINE,

Petitioner,

v.

BYERS & ANDERSON, INC., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONER

STATEMENT

The following facts, of which the Court may take

judicial notice, are contained in the public court

records of Scott v. United States, United States District

Court for the Western District of Washington at

Tacoma, DC# CV-84-737-T; Scott v. United States,

United States Court of Appeals for the Ninth Circuit,

No. 86-4017, reported at Scott v. United States, 884 F.2d

1280 (9th Cir. 1989); and Scott v. Byers & Anderson,

Inc., et al., Superior Court for the State of Washington

In and for Pierce County, Cause No. 88-2-09876-5.

It is probable that the Court’s decision in this

case will be determinative of the Scotts’ rights in their

lawsuit against respondents. These facts are presented

so that the Scotts’ interest in the outcome may be more

fully understood. The pertinent facts are essentially

parallel to those in this case.

Shanna Ruggenberg (“Ruggenberg”), an

employee of Byers & Anderson, Inc. (“Byers &

Anderson”), was the court reporter at the trial of a

medical malpractice action brought against the federal

government by the Scotts in the United States District

Court for the Western District of Washington.

When plaintiffs’ case came on for trial, the

district court was operating under an emergency

situation with respect to cou;t reporting services. The

emergency situation was caused by the release of an

official court reporter from his employment.

During the emergency situation, the district

court contracted with Byers & Anderson for the

provision of court reporting services. No written

contract was entered into. Byers & Anderson had

complete discretion as to which reporter to send to the

- district court. Ruggenberg was the person provided by

Byers & Anderson.

The Scotts’ original lawsuit was tried before the

Honorable Jack Tanner in the United States District

Court for the Western District at Tacoma, Washington,

in the spring of 1986. The evidence at trial showed,

and the trial court found, that Johnathan was born

prematurely and in a hypoxic (oxygen starved)

condition as a result of negligent medical care

provided by government employees before, during,

and after Johnathan’s birth. Johnathan’s negligent

medical treatment caused an abnormal brain condition

which has resulted in his suffering from spastic

quadriplegia, a form of cerebral palsy.

Johnathan is, at most, only mildly retarded. He

has, however, severe neurological problems which

impair his motor and communication skills. He

cannot stand, walk, sit independently, or feed and care

for himself. He needs computer assisted devices to

communicate effectively. Johnathan will always

require special equipment, lifetime attendant care, and

medication, as well as extensive medical, physical,

occupational, and speech therapy.

Plaintiffs were awarded judgment against the

United States in the total amount of $11,101,000.21.

The award included compensation to Johnathan for

pain, suffering, and physical impairment; funds to

provide for loss of future income; funds to pay for

lifetime attendant care, medical services, supplies, and

equipment; and compensation to Karen Scott for

damage to the parent-child relationship. Scott v.

United States, 884 F.2d 1280, 1282 (9th Cir. 1989).

At the conclusion of trial on May 8, 1986, the

United States Attorney orally ordered a transcript of

the proceedings from Ruggenberg. When the United

States filed its Notice of Appeal on August 19, 1986, it

also submitted a “Transcript Designation and Ordering

Form.” Under FRAP 11(b), Ruggenberg should have

filed the trial transcript on or before September 18,

1986--thirty days after the transcript had been ordered.

As discussed below, no transcript became available for

appeal until a year and one-half later.

On October 2, 1986, Ruggenberg filed a motion

for extension of time for filing the transcript and gave

an estimated filing date of November 2, 1986.

Ruggenberg advised the court that a backlog of work

had caused the delay. The court granted the motion on

October 22, 1986.

The transcript was not filed when promised. On

November 3, 1986, Ruggenberg filed a second motion

for extension of time, giving an estimated filing date of

December 2, 1986. She again cited backlog as the reason

10

extension. The court granted this motion on

November 19, 1986.

After Ruggenberg failed to file the transcript on

December 2, 1986, counsel for the Scotts brought a

motion to dismiss the appeal of the United States for

failure to file the trial transcript. The motion was

based, among other things, upon the affidavit of Dr.

Stephen T. Glass, one of Johnathan’s treating

physicians. Dr. Glass stated in his affidavit that

Johnathan required more physical therapy,

occupational therapy, speech therapy, and non-vocal

communication development therapy than was

available to him through the public school system.

Further, the delay in providing such additional

therapy would irreversibly diminish the level to

which Johnathan could improve in the future. The

Scotts alleged that the delay in filing the trial transcript

was, at the time plaintiffs moved to have the appeal

dismissed, unreasonable.

In mid-December 1986, Ruggenberg filed a third

motion for extension of time, estimating the transcript

11

would be filed on January 23, 1987. The reason cited

for the need for an extension was again backlog. The

transcript was not filed in January; nor was it filed in

February. By this time, Ruggenberg had made

numerous representations regarding production of the

trial transcript to various individuals. In November

1986, she represented that a good portion of the trial

transcript had been completed. She advised plaintiffs’

counsel that portions of the transcript would be filed by

February 6, 1987. No portion of the transcript was filed

by that date. In addition, Ruggenberg did not respond

to the efforts by Bruce Rifkin, Clerk of the United

States District Court for the Western District of

Washington, to obtain the transcript.

By a pleading dated March 3, 1987, Ruggenberg

filed a fourth motion for extension of time. She

indicated that the estimated filing dates would be

March 9, 1987, for a portion of the transcript and March

13, 1987, for the remainder. Again, Ruggenberg failed

to file the trial transcript as promised.

12

By order filed on March 4, 1987, the Ninth

Circuit Court of Appeals directed Ruggenberg to file

the transcript within 14 days. The court also ordered

her to show cause why financial sanctions should not

be imposed against her if the transcript was not filed by

March 18, 1987. The transcript was not filed by March

18. In a second order filed on April 22, 1987, the Ninth

Circuit observed that Ruggenberg had failed to respond

to the March 4, 1987, order and had consistently failed

to explain adequately her delays in filing the transcript.

The court ruled that if she failed to file the transcript

within seven days of the entry of the order, she would

pay $100.00 per day to the court clerk until she filed the

transcript. The Ninth Circuit Court of Appeals also

ordered that Ruggenberg be incarcerated unless she

filed the entire transcript within 28 days.

On May 15, 1987, the transcript still not having

been filed, the Scotts brought a motion seeking an

order directing Ruggenberg to return all records of trial

proceedings to the district court for the purpose of

turning such records over to Karen Larson, President

13

Elect of the Washington Shorthand Reporters’

Association, to complete transcription of the trial

record.

After Ruggenberg failed to follow the first two

orders of the Ninth Circuit requiring production of the

Scotts’ trial transcript, the court entered a third order

on June 11, 1987. The court observed that Ruggenberg

had failed to respond to or comply with the prior

orders. Accordingly, the court ordered Ruggenberg to

show cause in writing within 14 days why she should

not be incarcerated. Ruggenberg again failed to

respond to the court's directive. This was noted by the

Ninth Circuit Court of Appeals on July 10, 1987, when

it issued its fourth order regarding Ruggenberg’s

failure to produce the trial transcript. In this order the

court granted the Scotts’ motion to compel Ruggenberg

to return all records of the trial proceedings to the

United States Marshall so that another court reporter

could attempt to complete the transcript.

Ruggenberg’s first formal acknowledgment of

her delay in providing the transcript came through her

14

personal affidavit filed in the Scotts’ lawsuit. In her

affidavit dated July 24, 1987, Ruggenberg disclosed that

in February 1986, when Byers & Anderson had

dispatched her to the district court, she had been a

court reporter for only one and one-half years. Before

working for the court, she had only provided court

reporting services to attorneys at depositions.

Ruggenberg had not possessed any court reporter

certification, either state or national. In her affidavit,

Ruggenberg stated that Byers & Anderson had never

given her any sort of written guidelines, rules, or

instructions for her work at the court. She stated that

Byers & Anderson had not provided her any place to

complete her work for the court and that,

consequently, she had to do that work at home.

Ruggenberg also stated in her affidavit that,

although she had been overworked, Byers & Anderson

had never dispatched another reporter to the court to

relieve her. She said that after leaving the court in

August 1986, she had continued to work for Byers &

Anderson. Instead of permitting her to complete her

15

work for the court, Byers & Anderson had dispatched

her to other jobs, despite her having a backlog from

her court assignment. Ruggenberg stated that Byers &

Anderson had required her to give priority to law

firms who were its regular clients. Ruggenberg had

not felt this was proper, but had acquiesced because she

had wanted to keep her job with Byers & Anderson.

The work priority issue had caused such friction that

Ruggenberg had terminated her employment with

Byers & Anderson.

In her affidavit, Ruggenberg also admitted she

had been incapable of handling the responsibilities

imposed upon her by Byers & Anderson. She

acknowledged that she was inexperienced, unqualified,

and had not received proper management or

apportionment of work from Byers & Anderson.

The ongoing delay in the production of the trial

transcript did not end with the court’s order requiring

Ruggenberg to turn over all of her shorthand notes,

computer tapes of shorthand notes, partial transcripts,

and tape recordings. When Ruggenberg first delivered

16

her materials to the United States Marshall, several

days’ worth of notes and tapes were missing. These

were later secured by the Scotts through further

requests to Ruggenberg’s attorney.

When others attempted to transcribe the trial

proceedings, it became apparent that Ruggenberg’s

notes and tape recordings were often indecipherable.

This made transcription by the substitute court

reporter difficult and time consuming. Because

Ruggenberg’s notes were indecipherable, further delay

occurred when portions of the tape recordings of the

Scotts’ trial were sent to the Federal Bureau of

Investigation in Washington, D.C., for electronic

enhancement.

The trial transcript was finally filed on February

19, 1988. The appeal in the Scotts’ case was, therefore,

delayed for seventeen months because of Ruggenberg’s

inaction and omissions. As a result of this delay,

Johnathan suffered irreversible damage to his

rehabilitation efforts. The Scotts also suffered

17

substantial damages from lost interest and investment

opportunities.

The Ninth Circuit Court of Appeals ultimately

upheld most of the elements of damages awarded by

the trial court, but reversed and remanded for a

recalculation of the award because of the net discount

rate used. Scott v. United States, 884 F.2d 1280, 1282

(9th Cir. 1989). Shortly before the trial on remand in

June of 1990, the Scotts and the Government settled

the case for $8,500,000.

Based upon the foregoing facts, the Scotts in

their state court action have asserted claims sounding

in negligence against both Ruggenberg and Byers &

Anderson. Ruggenberg is alleged to be liable for her

own negligence. Byers & Anderson is alleged to be

vicariously liable for Ruggenberg’s negligence, as well

liable for their own negligent hiring and supervision

of Ruggenberg. The Scotts’ lawsuit in Washington

State is presently dormant pending the outcome of this

case.

18

SUMMARY OF ARGUMENT

Shanna Ruggenberg, acting as a federal court

reporter, is not entitled to absolute immunity for

failing to record properly and to transcribe promptly

the proceedings of a district court trial. Even if this

Court were to find, however, that such absolute

immunity exists, such immunity should not extend to

the reporting firm of Byers & Anderson, Inc., which

never performed any adjudicatory functions.

Moreover, an agent's immunity from civil liability

generally does not establish a defense for the principal.

Restatement (Second) of Agency § 217 (1958).

Accordingly, any immunity of Ruggenberg as a

government official would not shield her principal,

Byers & Anderson, Inc., from tort liability, even when

liability is predicated upon respondeat superior.

ARGUMENT

I. Ruggenberg is Entitled, At Most, to Qualified

Immunity.

But for the holding of the Ninth Circuit Court of

Appeals on court reporter immunity, the petitioner in

19

this case would have a justifiable cause of action.

Antoine v. Byers & Anderson, Inc., 950 F.2d 1471, 1473-

74 (9th Cir. 1991). As petitioner notes in his brief,

courts in the majority of federal judicial circuits have

not held court reporters to be immune from suit, and

have recognized that court reporters may be held liable

for damages caused by their failure to perform properly

their duties. In six other circuits, court reporters are

only entitled to qualified immunity. See, e.g., Smith v.

Tandy, 897 F.2d 355 (8th Cir.), cert. denied, 111 S. Ct. 177

(1990).

The Scotts join in the brief of petitioner on this

issue, and agree that Antoine was wrongly decided.

Court reporters should have, at most, a qualified

immunity from suit. The Scotts will not burden the

Court by repeating the arguments already advanced by

petitioner, however.

The purpose of this brief is to demonstrate that

even if the Court were to decide that Ruggenberg has

20

absolute immunity from suit, her principal, Byers &

Anderson, is still subject to liability.

II. Any Immunity of Ruggenberg Does Not Absolve

Byers & Anderson From Liability.

The Ninth Circuit Court of Appeals in Antoine

focused its discussion almost exclusively upon

Ruggenberg, and not Byers & Anderson. Nowhere in

its opinion did the Ninth Circuit expressly state that

Byers & Anderson was entitled to the same absolute

quasi-judicial immunity Ruggenberg enjoys. The

court’s sole statement as to the liability of Byers &

Anderson was this:

Because Ruggenberg is entitled to

absolute quasi-judicial immunity, the

district court correctly determined that

Byers & Anderson is likewise not liable to

Antoine. This is so regardless of

Ruggenberg’s employment relation with

Byers & Anderson.

950 F.2d at 1477. The Court of Appeals cited no

authority to support its holding on this point.

21

Logically, the court’s holding in Antoine with

respect to Byers & Anderson must have been based

upen one or both of the following premises: (1) Byers

& Anderson stands on the same footing as Ruggenberg

and is entitled to invoke the same absolute quasi-

judicial immunity; or (2) Byers & Anderson is

immune because the immunity of its agent,

Ruggenberg, flows or extends to it as principal.

Neither premise is correct.

A. Under Any Immunity Analysis, Byers &

Anderson Cannot be Said to Have Functioned in a

Judicial Capacity.

In reaching its holding, the Ninth Circuit Court

of Appeals in Antoine principally relied upon the

decision of this Court in Forrester v. White, 484 U.S.

219 (1988). The analysis it used was a functional one.

For the court, the determinative factor was the

offending act itself--not the person who performed the

act. The pivotal question for the court was whether

the acts of Ruggenberg in question were judicial in

nature. Since the court’s answer to this question was

22

4 7

yes,” absolute quasi-judicial immunity attached.

Antoine, 950 F.2d at 1475-76.

Assuming, for the sake of argument, that the

Court of Appeals was correct, the same conclusion

should not be drawn as to the conduct of Byers &

Anderson. To determine whether Byers & Anderson

has any immunity under the Ninth Circuit's

functional analysis, it must be determined whether

Byers & Anderson’s challenged conduct was judicial in

nature. It clearly was not.

The firm of Byers & Anderson did not function

as a federal court reporter. The firm neither recorded

court proceedings nor attempted to transcribe those

proceedings. All Byers & Anderson did was to contract

with the district court to provide reporters who in turn

would perform those reporting functions in judicial

proceedings.

It is alleged, among other things, that Byers &

Anderson was negligent in its hiring and supervision

of Ruggenberg. Such employment decisions and

responsibilities do not meet the Forrester and Antoine

23

prerequisites for absolute quasi-judicial immunity:

they are not judicial functions, nor are they part and

parcel of the judicial process. These personnel

decisions are administrative, not judicial in nature.

For this reason, Byers & Anderson is no more entitled

to claim the benefit of absolute quasi-judicial

immunity than was the judge in Forrester who

improperly discharged a court employee:

In the case before us, we think it clear

that Judge White was acting in an

administrative capacity when he demoted

and discharged Forrester. Those acts--like

many others involved in supervising court

employees and overseeing the efficient

operation of a court--may have been quite

important in providing the necessary

condition of a sound adjudicative system.

The decisions at issue, however, were not

themselves judicial or adjudicative. As

Judge Posner pointed out below, a judge

who hrres or fires a probation officer cannot

meaningfully be distinguished from a

district attorney who hires and fires

assistant district attorneys, or indeed from

any other executive branch official who is

responsible for making such employment

decisions. Such decisions, like personnel

decisions made by judges, are often crucial

to the efficient operation of public

24

institutions (some of which are at least as

important as the courts), yet no one

suggests that they give rise to absolute

immunity from liability in damages under

§ 1983.

Forrester, 484 U.S. at 229.

Under Forrester, there is no justification for

granting Byers & Anderson immunity from suit, even

if this Court accepts and upholds the functional

analysis as applied by the Ninth Circuit in Antoine.

The acts of Byers & Anderson were not “part of the

adjudicatory function.” Antoine, 950 F.2d at 1475.

B. Any Immunity of Ruggenberg as an Agent

Does Not Extend to Byers & Anderson as her Principal.

It is probable that the Ninth Circuit’s holding in

Antoine absolving Byers & Anderson from liability

was not predicated upon the conclusion that this

reporting firm had acted in any judicial capacity. The

court’s holding and the context in which it appears

suggest that the Court of Appeals simply assumed that

Byers & Anderson was immune because Ruggenberg

was immune. This assumption is legally flawed.

25

Any suggestion that Byers & Anderson cannot

be held vicariously liable for Ruggenberg’s negligence

because she is immune from suit demonstrates a

misperception as to the nature of vicarious liability.

This precise issue was discussed in the context of

employee immunity and employer vicarious liability

in Guffey v. Logan, 563 F. Supp. 951 (E.D. Pa. 1983). The

court first discussed the policy underlying vicarious

liability as stated by Dean Prosser:

What has emerged as the modern

justification for vicarious liability is a rule

of policy, a deliberate allocation of a risk.

The losses caused by the torts of employees,

which as a practical matter are sure to occur

in the conduct of the employer’s enterprise,

are placed upon that enterprise itself, as a

required cost of doing business. They are

placed upon the employer because, having

engaged in an enterprise which will, on the

basis of all past experience, involve harm to

others through the torts of employees, and

sought to profit by it, it is just that he,

rather than the innocent injured plaintiff,

should bear them; and because he is better

able to absorb them, and to distribute them,

through prices, rates or liability insurance

to the public and so to shift them to society,

to the community at large. Added to this is

26

the make weight argument that an

employer who is held strictly liable is under

the greatest incentive to be careful in the

selection, instruction and supervision of

his servants, and to take every precaution

to see that the enterprise is conducted

safely.

563 F. Supp. at 954, quoting W. Prosser, The Law of

Torts, § 69 (1971). In light of these policies, the court

stated:

The predicate then for finding an employer

vicariously liable is that the employee was

negligent, not that the latter was liable.

Guffey, 563 F. Supp. at 954. No one has ever claimed

that Ruggenberg was not negligent, only that she was

immune from suit. Byers & Anderson, as

Ruggenberg’s principal, should be liable for that

negligence.

If any presumption exists, it should be that the

immunity of an agent does not extend to his or her

principal.

[A]n immunity from liability does not

mean that a person did not commit a

negligent, harmful act. It only means that

for certain policy reasons liability is

precluded against that person. In the

27

interest of compensation to the victim, it

should not be presumed that the immunity

from liability given to the negligent person

is carried over to others whom the victim

can sue. Rather, the presumption should

be the other way. Thus, unless the purpose

of the immunity would be thwarted by

carrying it over to others, suit against the

others will lie.

Davis v. Harrod, 407 F.2d 1280, 1284 (D.C. Cir. 1969)

(Judge J. Skelly Wright). The rule that a principal is

not freed from a lawsuit because of an agent's

immunity is followed in most jurisdictions.

[T)he rule in this Commonwealth and the

rule more commonly adopted across the

country is that an agent’s immunity does

not extend to a principal against whom

liability is sought under the doctrine of

respondeat superior.

Taplin v. Town of Chatham, 453 N.E.2d 421, 423 (Mass.

1983).

This rule of agency has been adopted by the

American Law Institute in its Restatement:

In an action against a principal based on the

conduct of a servant in the course of

employment:

>

* >

(b) The principal has no defense

28

because of the fact that: .. . (ii) the agent

had an immunity from civil liability as to

the act.

Restatement (Second) of Agency § 217 (1958). The

holdings of the numerous authorities listed in the

citations to this section of the Restatement were

recently summarized as follows:

[W]here the agent has an immunity from

civil liability dependent on his or her

peculiar status (as for example a family

relationship to the injured party, official

immunity of some sort or other, infancy,

incompetence, etc.) subsection (b) applies

and the principal cannot avail itself of its

agent’s defense.

Sundance Cruises Corp. v. American Bureau of

Shipping, 799 F. Supp. 363, 391 S.D.N.Y. (1992).

The State of Washington has adopted and

followed this section of the Restatement. Babcock v.

State, 116 Wn.2d 596, 809 P.2d 143 (1991). A central

issue in Babcock was whether DSHS caseworkers of the

Washington Department of Social and Health Services

should be immune from liability for negligent foster

care investigation and placement. The court

29

ultimately concluded that caseworkers were entitled to

a qualified immunity. 116 Wn.2d at 618.

Since the State was also a party to that action, the

court was then called upon to decide whether the

immunity granted to caseworkers would be extended

to the State. The court concluded that the immunity of

caseworkers did not extend to the State:

An agent’s immunity from civil

liability generally does not establish a

defense for the principal. Restatement

(Second) of Agency § 217 (1958).

Accordingly, the immunities of

governmental officials do not shield the

governments which employ them from

tort liability, even when liability is

predicated upon respondeat superior.

Babcock, 116 Wn.2d at 620. See also, Waller v. State, 64

Wn. App 318, 333-34, 824 P.2d 1225 (1992). If, as

discussed below, the law of Washington State is

applied to this aspect of this case, Babcock negates any

claim by Byers & Anderson that it is immune solely

because Ruggenberg may be immune from suit.

It is not being suggested that Washington law

controls every aspect of the disposition of this case. It

30

should, however, apply to the issue of any immunity

of Byers & Anderson. It is a general rule that in most

fields of activity this Court has refused to find federal

pre-emption of state law. Boyle v. United

Technologies Corp., 487 U.S. 500, 504 (1988). There are

certain areas of uniquely federal interests, however,

were state law is pre-empted and replaced, where

necessary, by the so-called “federal common law.” Id.

One of the areas which this Court has “found to

be of peculiarly federal concern, warranting the

displacement of state law, is the civil liability of federal

officials for actions taken in the course of their duty.”

487 U.S. at 505. Thus, even though Ruggenberg

apparently was never hired or sworn in as an official

federal court reporter, she did act as a federal agent

under authority of federal law. It is assumed,

therefore, that the scope of her civil liability is

controlled by federal, not state, common law. See, e.g.,

Howard v. Lyons, 360 U.S. 593, 597 (1959).

In contrast, as discussed above, Byers &

Anderson never acted in an official judicial capacity. It

31

merely had a contract with the district court to provide

court reporters on an emergency basis. It acted as an

independent contractor performing under its contract,

rather than as an official performing duties as a federal

employee. See Boyle v. United Technologies Corp., 487

U.S. at 505.

The lawsuits of Antoine and the Scotts against

Byers & Anderson, while obviously arising out of the

performance of that contract, are purely private and do

not touch the rights and duties of the United States

judiciary. This is so because these plaintiffs do not seek

to impose upon Byers & Anderson any duty contrary

to the duty imposed by the Government contract; that

is, to provide competent court reporters to the court.

Where the private litigant simply seeks to enforce the

contractual duty already owed to the Government,

there is no uniquely federal interest which would

require displacement of state law. See Boyle v. United

Technologies Corp., 487 U.S. at 506-08; Miree v. DeKalb

County, 433 U.S. 25, 30 (1977). Because no federal

interests exist regarding Byers & Anderson, the law of

32

Washington should be applied. Byers & Anderson

should be subject-to suit for the acts of its agent, even if

that agent is herself immune from suit. Babcock v.

State, 116 Wn.2d at 620.

Even if this Court were to conclude that

Washington law should be displaced by federal

comunon law on this point, the outcome should be the

same. While counsel for the Scotts have been unable

to locate a decision of this Court which addresses this

specific issue, there is no reason to believe that a

contrary rule is part of the federal common law. A

number of federal cases following the Restatement of

Agency have been cited above. No countervailing rule

has been located. Thus, even if the Court concludes

that there is a uniquely federal interest regarding to the

question of the immunity of Byers & Anderson, “(t]hat

merely establishes a necessary, not sufficient, condition

for the displacement of state law.” Boyle v. United

Technologies Corp., 487 U.S. at 507. No displacement

will occur unless there is a significant conflict between

33

the state law and a federal policy, interest, or statute.

Id.

The federal and state interests in this instance

are identical. There is no federal interest to be served

by permitting Byers & Anderson to escape liability for

its actions and those of its agent. The federal and state

interests both favor compensating victims suffering

loss. “Elemental notions of fairness dictate that one

who causes a loss should bear the loss.” Owen v. City

of Independence, 445 U.S. 622, 654 (1980). Immunizing

the principal here would thwart that objective. This

Court itself has cautioned that when a court is

considering granting absolute immunity, the negative

aspect of immunity must be kept in mind:

[O}fficial immunity comes at a great cost.

An injured party with an otherwise

meritorious tort claim is denied

compensation simply because he had the

misfortune to be injured by a federal

official. Moreover, absolute immunity

contravenes the basic tenet that individuals

be held accountable for their wrongful

conduct.

34

Westfall v. Erwin, 484 U.S. 292, 295, (1988). Byers &

Anderson should be held accountable.

CONCLUSION

Based upon the foregoing reasons, the decision

of the Ninth Circuit Court of Appeals in Antoine v.

Byers & Anderson, Inc., 950 F.2d 1471 (1991), should be

reversed and remanded to the district court for a trial

on the merits.

Respectfully submitted,

a Poll

es A. Miller

ounsel of Record)

air B. Burroughs

Carl A. Taylor Lopez

MILLS COGAN MEYERS

& SWARTLING

1000 Second Avenue

Seattle, WA 98104-1046

(206) 382-1000

Counsel for Amici Curiae

Johnathan and Karen Scott

November 23, 1992.

TO: Blair B. Burroughs

Mills, Cogan, Meyers & Swartling

1000 Second Ave., #3000

Seattle, Washington 98104-1046

FROM: M. Margaret McKeown

Jeffrey M. Thomas

Perkins Coie

1201 Third Avenue, 40th Floor

Seattle, Washington 98101-3099

RE: United States Supreme Court Review

of Antoine v. Byers & Anderson,

Inc., 950 F.2d 1471 (Supreme Court

Case No. 91-7604)

As the attorney of record for the

Petitioner, Jeffery Antoine, I hereby

consent to the filing of an amicus brief

in support of the Petitioner by Mills,

Cogan, Meyers & Swartling in the above

matter.

pate: /w. 20, 1992

Margaret (ear

M. Margaret McKeown

Jeffrey M. Thomas

Attorneys for the Petitioner

Jeffery Antoine