Summary
recognizing that although states have concurrent jurisdiction to hear § 1983 actions, "as a result of the Supremacy Clause found in U.S. Const. art. VI, federal law is controlling and preempts any conflicting state law"
Summary of this case from State ex Rel. Cherry v. BurnsOpinion
No. S-97-852.
Filed April 2, 1999.
1. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. 2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision. 3. Summary Judgment: Appeal and Error. The denial of a summary judgment motion is neither appealable nor reviewable, except where adverse parties have each moved for summary judgment and the trial court has sustained one of the motions. 4. Constitutional Law: Jurisdiction: States. Although the states have concurrent jurisdiction to entertain actions pursuant to 42 U.S.C. § 1983 (1994), as a result of the Supremacy Clause found in U.S. Const. art. VI, federal law is controlling and preempts any conflicting state law in determining these claims. 5. Civil Rights: Tort Claims Act. Where a civil rights claim is advanced under federal law, the plaintiff need not comply with the procedural requirements of the State Tort Claims Act, Neb. Rev. Stat. § 81-8,209 et seq. (Reissue 1994). 6. Constitutional Law: Civil Rights: Pleadings. Under federal law, only two factual allegations are necessary to state a cause of action under 42 U.S.C. § 1983 (1994): (1) a defendant's deprivation of a plaintiff's right secured by the Constitution and laws of the United States and (2) that the deprivation occurred under color of law. 7. Constitutional Law: Immunity. Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or 1985(3) (1994) cannot be immunized by state law. 8. Constitutional Law: States: Public Officers and Employees. Neither a state nor its officials acting in their official capacities are "persons" under 42 U.S.C. § 1983 (1994). 9. Constitutional Law: Public Officers and Employees: Liability. Under 42 U.S.C. § 1983 (1994), public officials sued in their individual capacity are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 10. Constitutional Law: Public Officers and Employees: Proof. For a constitutional right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he or she is doing violates that right. 11. Constitutional Law: Words and Phrases. A plaintiff prevails within the meaning of 42 U.S.C. § 1988 (1994) when actual relief on the merits of his or her claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. 12. Records: Appeal and Error. It is incumbent upon the party appealing to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court is to be affirmed. 13. Judgments: Appeal and Error. A proper result will not be reversed merely because it was reached for the wrong reasons.
Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge. Affirmed.
Brett McArthur for appellant.
Don Stenberg, Attorney General, Royce N. Harper, and Michael J. Rumbaugh, Special Assistant Attorney General, for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
The appellant, Mary Shearer, was charged with child neglect after her 4-year-old son, J.S., disobeyed her instruction not to play in the cab of a pickup truck parked in her driveway. The child apparently moved the gearshift, allowing the truck to roll down the driveway and strike a parked car. The criminal charges against Shearer were dismissed, but the case was still investigated by Jodine Allen, an investigator with the then Nebraska Department of Social Services (DSS). Shearer, on the advice of her attorney, refused to allow Allen to interview Shearer or Shearer's children, and Allen, basing her conclusion solely on the police report of the incident, identified Shearer as a potential child abuser in the Abused or Neglected Child Registry (Registry) maintained by DSS. Shearer sued the appellees in the instant action, Allen and Donald Leuenberger, the director of DSS, in their individual and official capacities, and DSS itself. After the district court entered an injunction against DSS, Shearer's name was permanently expunged from the Registry. Shearer maintained her suit, seeking damages for emotional distress and loss of reputation allegedly resulting from violations of her constitutional rights. The district court entered judgment in favor of the appellees and dismissed Shearer's suit. The initial question presented in this case is whether Shearer's action is barred by sovereign immunity. For the reasons that follow, we conclude that Shearer's action is barred by sovereign immunity, and we affirm the judgment of the district court.
I. FACTUAL BACKGROUND
On June 28, 1995, Shearer's child C.S., then 5 years old, went outside to play. C.S. had asked Shearer if he and some neighbor children could play in a pickup truck that was parked outside. The truck belonged to Shearer's boyfriend and was parked in the driveway of the Shearer residence. Shearer told C.S. that he was not allowed to play in the cab of the truck, but that he and his friends could play in the bed of the truck.
Nonetheless, a few minutes later, C.S. came back into the house and reported that the truck had "rolled out of the driveway and hit [a parked] car" belonging to a friend of Shearer's who was visiting at the time. C.S.'s brother J.S., then 4 years old, had climbed into the cab of the truck and played with the gearshift, evidently shifting the truck out of gear so that it rolled down the driveway. J.S. had been in the cab of the truck, while C.S. and at least three neighbor children had been in the bed of the truck at the time. One child reportedly struck her head, but no serious injuries were reported. There was minor damage to the car, but no one at the Shearer residence called the police.
The police nevertheless appeared about 20 minutes later, apparently having been called by a neighbor, and Shearer was cited for misdemeanor child abuse and neglect for leaving children unattended in a vehicle. The criminal charges were ultimately dismissed on October 11, 1995.
On August 21, 1995, Shearer was contacted by Allen, a caseworker with DSS. Allen stopped at the Shearer residence and finding no one home, left a note for Shearer asking her to contact Allen. Shearer did not do so, and on August 31, Allen contacted Shearer by telephone. Allen explained to Shearer that Allen's duty was to follow up on the police report, and Shearer told Allen that Shearer would not speak with Allen, on advice of counsel, and that Allen should contact Shearer's attorney.
Allen called Shearer's attorney the same day and explained that she wanted to meet with Shearer and her children; Shearer's attorney asked a few questions and said that he would talk to Shearer. Allen did not hear from Shearer or her attorney, so Allen called Shearer's attorney again on September 28, 1995. Shearer's attorney told Allen to send a list of specific questions that she wanted to ask Shearer. Allen explained that she did not typically ask a specific set of questions, but she did send Shearer's attorney DSS; "Child At Risk Field" risk assessment tool.
At the same time Allen sent the risk assessment form to Shearer's attorney, Allen also asked that an interview between Allen and Shearer be scheduled by a certain date, but Allen received no response to this request. On November 8, 1995, Allen again contacted Shearer and informed her that although the criminal case had been dismissed, DSS; investigation had not been completed. Shearer again said that she needed to speak with her attorney.
On November 21, 1995, Allen sent a letter to both Shearer and her attorney, stating that unless Shearer was willing to be interviewed, Allen would close the investigation on December 4. Allen wrote that her conclusion would be based on the police report of the incident, because, without interviewing Shearer, that would be the only evidence Allen had. Allen further indicated, in essence, that the police report, standing alone, would substantiate the charge of child neglect.
On December 4, 1995, not having met with Shearer or her attorney, Allen closed the investigation. Allen then sent Shearer a letter informing her that her name had been entered into DSS; "Central Registry" for reported child abuse and neglect. The report relating to Shearer was categorized as "inconclusive," meaning that the investigation indicated "by a preponderance of the evidence that maltreatment has occurred." The letter also informed Shearer of the procedures available if she wanted her name removed from the Registry. The letter, however, was sent by certified mail, and Shearer did not pick up the letter.
Shearer nonetheless discovered in late December that her name had been placed in the Registry. Shearer said that she was "devastated" by this discovery and was "humiliated, depressed, angry, just stressed."
Shearer sued in the district court, seeking an injunction directing DSS to remove her name from the Registry. Shearer also sought damages from DSS and Leuenberger and Allen, in both their individual and official capacities. Shearer's petition alleged two "causes of action," the first based on alleged violation of her right to remain silent under Nebraska law and the 5th Amendment to the U.S. Constitution and the second based on violation of her rights under the Due Process Clause of the 14th Amendment to the U.S. Constitution. Shearer alleged damages in the form of attorney fees, emotional distress, loss of enjoyment of life, and harm to her reputation.
The district court entered a temporary injunction preventing DSS from having Shearer's name in the Registry. The appellees asked the district court to reconsider, alleging, as they had in their answer to Shearer's petition, that the court lacked jurisdiction by virtue of the appellees' sovereign immunity.
Both Shearer and the appellees subsequently filed motions for summary judgment. The district court overruled Shearer's motion for summary judgment entirely and partially overruled the appellees' motion for summary judgment. The district court dismissed Shearer's first cause of action, relating to her right to remain silent, finding that the first cause of action alleged a tort and that Shearer's noncompliance with the State Tort Claims Act, Neb. Rev. Stat. § 81-8,209 et seq. (Reissue 1994), was fatal to her claim. Shearer does not argue the first cause of action on appeal.
The district court also dismissed the "portion of [Shearer's] action that seeks a Declaratory Judgment against the State," but did not dismiss the action in that regard as against the individual appellees. Finally, the district court dissolved the temporary injunction against DSS, by agreement of the parties, as the removal of Shearer's name from the Registry had mooted the issue.
The matter proceeded to trial on the second cause of action, the issue being whether Shearer could demonstrate that she had been damaged by DSS; actions. Prior to trial, Shearer asked the court for a jury trial, but this was denied, based on the district court's finding that the remaining cause of action was pled in equity. The case was tried to the court, and the district court found that since Shearer could demonstrate no damage to her reputation, she had not established the violation of a liberty interest protected by the Due Process Clause and that judgment should therefore be entered in favor of the appellees. Shearer timely appealed to the Nebraska Court of Appeals, and we removed the case to our docket on our own motion.
The record also reveals that Shearer filed motions for attorney fees on May 12 and July 24, 1997, and that DSS filed a responsive motion for attorney fees and costs on August 5. The record does not reveal, however, how these claims were resolved by the district court.
II. ASSIGNMENTS OF ERROR
Shearer alleges that the district court erred in (1) overruling her motion for summary judgment, (2) denying her a trial by jury, (3) finding that she had not met her burden of proof as to the material elements of the case, and (4) denying her motion for attorney fees and costs.
III. SCOPE OF REVIEW
When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the cour below. Galyen v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1997).
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision. Charles Vrana Son Constr. v. State, 255 Neb. 845, 587 N.W.2d 543 (1998); In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998).
IV. ANALYSIS
We note that Shearer's first assignment of error is an appeal from a pretrial denial of her motion for summary judgment. Shearer does not assign as error, however, the district court's entry of summary judgment with reference to her first cause of action, and her appellate brief makes clear that she is claiming error only regarding the denial of summary judgment on her due process claim.
The denial of a summary judgment motion is neither appealable nor reviewable, except where adverse parties have each moved for summary judgment and the trial court has sustained one of the motions. Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). In the present case, this exception does not apply, because summary judgment was granted only as to Shearer's first cause of action and she does not claim this as error on appeal. Instead, she claims error regarding the denial of summary judgment on her second cause of action, relating to due process. Because this matter proceeded to trial on that cause of action, there is no applicable exception to the rule that the denial of a summary judgment is not reviewable on appeal, and we do not consider Shearer's assignment of error. See id.
Before addressing Shearer's remaining assignments of error, we must resolve two preliminary issues: We must determine precisely what Shearer has claimed, and we must consider the appellees' contention that all of Shearer's claims are barred by sovereign immunity.
Shearer's pleadings in the district court are, to put it kindly, rather difficult to decipher. Shearer identifies who she believes violated her rights and what rights she believes were violated, but the statutes under which she is claiming relief are unidentified. Shearer does not state whether her claims are predicated on state or federal law. We are reluctant to accept Shearer's apparent invitation to wander through the Nebraska Revised Statutes and U.S. Code seeking a statute under which her petition might be construed to state a claim. At oral argument, however, Shearer's counsel indicated that Shearer's claim is based on 42 U.S.C. § 1983 (1994). In accordance with the liberal pleading requirements for a federal civil rights action, we will so construe Shearer's petition.
1. NEBRASKA LAW
Before addressing federal law, we must consider two state statutory provisions: the statutes establishing the Registry, Neb. Rev. Stat. §§ 28-715 and 28-718 et seq. (Reissue 1995), and the special child abuse immunity provision of Neb. Rev. Stat. § 28-716 (Reissue 1995).
(a) Registry
DSS is directed by § 28-715 to "file each report of suspected abuse or neglect in a special state Abused or Neglected Child Registry to be maintained in the department." It is further provided by § 28-720 that all cases should be classified in one of these categories: "(1) Court substantiated; (2) petition to be filed; (3) investigation inconclusive; or (4) unfounded report, whichever the case may be." It is stated in § 28-720 that "information identifying the subjects of unfounded reports shall be expunged from the register forthwith." Shearer's case was initially classified "inconclusive," but has since been expunged.
According to §§ 28-722 and 28-726, access to information from cases of any classification is strictly limited to persons whose access is authorized by statute, such as subjects of the reports themselves; parents, guardians, or guardians ad litem of subjects; law enforcement agencies investigating a report of abuse or neglect; county attorneys preparing an abuse, neglect, or termination petition; a physician treating a child whom he or she reasonably believes may have been abused or neglected; an agency having legal responsibility for the welfare of an abused or neglected child; the State Foster Care Review Board, when the records relate to a child placed for foster care; and certain government agencies responsible for the protection of disabled and mentally ill subjects. Access is also provided by § 28-726 to persons engaged in research or auditing, but under those circumstances requires the removal of any information that would identify any subjects of the reports. The statutes do not provide for dissemination of Registry information to potential employers or the public at large. There is no evidence in the record indicating that information from Shearer's case was released to anyone.
It is provided by Neb. Rev. Stat. § 28-713.01 (Reissue 1995) that when DSS completes an investigation, it shall notify the subject of the report regarding DSS; determination of the case. It is further established, in § 28-723, that any subject may, after the completion of an investigation, ask DSS to amend or expunge the report from the Registry and that if DSS does not do so within 30 days, the subject has the right to a fair hearing within DSS, at which the burden is on DSS to sustain the accuracy of the report. The statute also provides that DSS; decision may be appealed under the Administrative Procedure Act. The record in this case does not indicate that Shearer availed herself of this remedy.
(b) Child Abuse Immunity Statute
The appellees defended in the district court on the basis of § 28-716 and direct our attention to the statute, which states in pertinent part: "Any person participating in an investigation or the making of a report pursuant to the provisions of sections 28-710 to 28-717 . . . shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed, except for maliciously false statements."
It is clear that the investigation of Shearer and the placement of her name in the Registry were conducted pursuant to the provisions of Neb. Rev. Stat. §§ 28-710 through 28-717 (Reissue 1995). Shearer does not allege, nor does the record reveal, any "maliciously false statements" by the appellees. Therefore, by the plain language of this statute, Leuenberger and Allen, in their individual capacities, are immune from liability under state law.
Although Shearer does not expressly challenge the constitutionality of § 28-716, we note that the U.S. Supreme Court has specifically approved a similar statute from California which granted public employees immunity from liability resulting from determinations of whether to parole or release prisoners from the California penal system. See Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). We also note that other jurisdictions have held statutes similar to § 28-716 to be valid and enforceable. See, e.g., Lux by Lux v. Hansen, 886 F.2d 1064 (8th Cir. 1989); B.W. v. Meade County, 534 N.W.2d 595 (S.D. 1995); Elmore v. Van Horn, 844 P.2d 1078 (Wyo. 1992); Dept. of Health and Rehab. v. Dougherty, 700 So.2d 77 (Fla. App. 1997), review denied 717 So.2d 530 (Fla. 1998); Davis v. Durham City Schools, 91 N.C. App. 520, 372 S.E.2d 318 (1988); Storch v. Silverman, 186 Cal.App.3d 671, 231 Cal.Rptr. 27 (1986).
2. FEDERAL LAW
In relevant part, 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States . . . 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.
Although the states have concurrent jurisdiction to entertain § 1983 actions, as a result of the Supremacy Clause found in U.S. Const. art. VI, federal law is controlling and preempts any conflicting state law in determining these claims. Gordon v. Community First State Bank, 255 Neb. 637, 587 N.W.2d 343 (1998). Because Shearer's civil rights claim is advanced under federal law, she need not comply with the procedural requirements of the State Tort Claims Act. See, Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988) (holding that Wisconsin's state tort notice-of-claim statute could not defeat § 1983 action filed in state court). Compare Calabro v. City of Omaha, 247 Neb. 955, 531 N.W.2d 541 (1995) (holding that failure to file notice of claim to Commission of Industrial Relations did not defeat § 1983 action filed in state court).
Under federal law, only two factual allegations are necessary to state a cause of action under § 1983: (1) a defendant's deprivation of a plaintiff's right secured by the Constitution and laws of the United States and (2) that the deprivation occurred under color of law. Wichman v. Naylor, 241 Neb. 249, 487 N.W.2d 291 (1992) (citing Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Adickes v. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964)). See, also, Gordon v. Community First State Bank, supra. Shearer's petition meets the liberal pleading standard for § 1983.
Contrary to the appellees' contention, the immunity from liability under state law provided by § 28-716 does not apply to a claim advanced under federal law, even if that claim is litigated in a Nebraska court. The U.S. Supreme Court has held that
"[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985 (3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. . . ."Martinez v. California, 444 U.S. at 284 n.8.
(a) Sovereign Immunity for State Appellees
We first consider whether § 1983 abrogates traditional sovereign immunity for states and state officials. In this regard, the U.S. Supreme Court has specifically held that
a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. . . . As such, it is no different from a suit against the State itself. . . .
We hold that neither a State nor its officials acting in their official capacities are "persons" under § 1983.
(Citations omitted.) Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). See, also, Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990).
Given the foregoing authority and finding no waiver of the State's immunity that is properly applied in this case, we determine that Shearer cannot bring a § 1983 action against DSS or against Leuenberger and Allen in their official capacities.
(b) Qualified Immunity for Individual Appellees
The district court ultimately decided that Shearer had failed to establish a violation of due process because she failed to sufficiently prove that she had been damaged by the appellees' conduct. Before we reach that issue, however, we must first consider whether Allen and Leuenberger in their individual capacities are immune from liability under § 1983.
Under § 1983, public officials sued in their individual capacity "`are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Whether an official may prevail in his or her qualified immunity defense depends upon the "`objective reasonableness of [his or her] conduct as measured by reference to clearly established law.'" Id.
In order to determine whether a defendant is entitled to qualified immunity, we engage in a two-part analysis. . . . First, we must determine whether the plaintiff has alleged the violation of a constitutional right. . . . Second, we must determine whether that right was clearly established at the time of the alleged violation.
(Citations omitted.) Manzano v. South Dakota Dept. of Social Services, 60 F.3d 505, 509 (8th Cir. 1995).
As noted above, Shearer's petition, when liberally construed, alleges the violation of a constitutional right. Hence, our analysis turns to whether or not that right was "clearly established" at the time of the alleged violation.
For a constitutional right to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right.". . . "This is not to say an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent."
(Citation omitted.) Id. (quoting Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
The U.S. Court of Appeals for the Eighth Circuit, in the context of a child abuse investigation, has noted that
an imperfect investigation without more does not deprive the investigators of qualified immunity. . . . ("The question is whether the state of the law was such that a reasonable person would have known [his or her] actions were unconstitutional. Furthermore, a reasonable person is not expected to act as a legal scholar and predict the future direction of the law. Closely analogous cases, decided before the defendant acted . . . are often required to find that a constitutional or statutory right is clearly established.")Myers v. Morris, 810 F.2d 1437, 1460 (8th Cir. 1987), cert. denied 484 U.S. 828, 108 S.Ct. 97, 98 L.Ed.2d 58, abrogated on other grounds, Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).
In a series of cases, the Eighth Circuit has held that parental liberty interests are not clearly established in the context of reasonable suspicion of child abuse, even where that suspicion results in the wrongful placement of the children into foster care. See, e.g., Thomason v. SCAN Volunteer Services, Inc., 85 F.3d 1365 (8th Cir. 1996); Manzano v. South Dakota Dept. of Social Services, supra; Lux by Lux v. Hansen, 886 F.2d 1064 (8th Cir. 1989); Doe v. Hennepin County, 858 F.2d 1325 (8th Cir. 1988), cert. denied 490 U.S. 1108, 109 S.Ct. 3161, 104 L.Ed.2d 1023 (1989); Myers v. Morris, supra.
We also note that several other jurisdictions have confronted due process challenges to child abuse registry schemes similar to that established in Nebraska. Appellate courts that have confronted similar facts to those in the instant case have generally found that those circumstances comport with due process. See, e.g., Watso v. Dept. of Social Services, 841 P.2d 299 (Colo. 1992); Roth v. Reagen, 422 N.W.2d 464 (Iowa 1988); Mary L. v. State Dept. of Social Services, 244 A.D.2d 133, 676 N.Y.S.2d 704 (1998); Physical Abuse at Blackacre Acad., 304 N.J. Super. 168, 698 A.2d 1275 (1997); J.P. v. Carter, 24 Va. App. 707, 485 S.E.2d 162 (1997); Johnston v. Michael Shea and Associates, 425 N.W.2d 263 (Minn. App. 1988).
Those appellate courts that have found child abuse registry systems to violate due process have done so on facts that are distinguishable from those found in the Nebraska scheme and in the present case. See, e.g., Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994); Lee TT. v. Dowling, 87 N.Y.2d 699, 664 N.E.2d 1243, 642 N.Y.S.2d 181 (1996) (finding due process violated because burden of proof in substantiating allegations was not placed on investigating agency); Richardson v. Chevrefils, 131 N.H. 227, 552 A.2d 89 (1988); Wilson v. State Dept. of Human Services, 969 P.2d 770 (Colo. App. 1998) (finding due process violated because no notice was given to suspected abuser); Matter of East Park High School, 314 N.J. Super. 149, 714 A.2d 339 (1998) (finding due process violated by denial of fair administrative hearing); Cavarretta v. DCFS, 277 Ill. App.3d 16, 660 N.E.2d 250, 214 Ill. Dec. 59 (1996) (finding due process implicated by 598-day delay in completing appeals process).
Furthermore, those cases determined that due process interests were strongly implicated because the information contained in the registry was more widely disseminated than under Nebraska's law. See id. In the instant case, DSS gave notice to Shearer before her name was placed in the Registry, was required to find that the claim was supported by the preponderance of the evidence, and proceeded without unreasonable delay. Had Shearer chosen to pursue her administrative remedies, she would have been entitled to a fair hearing in which the burden would have been on DSS to sustain its action. There is no evidence that information regarding Shearer was disseminated, even to the limited degree permitted by the Nebraska statutes. The concerns iterated by the above-cited cases are not implicated in this appeal. We, therefore, conclude that the procedures in this case did not violate any "`clearly established statutory or constitutional rights of which a reasonable person would have known.'" Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Consequently, Shearer has not pled facts that breach Allen's and Leuenberger's qualified immunity under § 1983.
3. ATTORNEY FEES
Shearer claims on appeal that the trial court erred in denying her motion for attorney fees. Shearer filed two motions for attorney fees in the trial court, and the State also filed its own motion for attorney fees.
The State argues that Shearer is not entitled to attorney fees because she lost in the trial court. Shearer's argument on appeal is based on 42 U.S.C. § 1988(b) (1994), which provides, in relevant part: "In any action or proceeding to enforce a provision of [section] . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."
The State's argument misperceives the circumstances in which a plaintiff may recover attorney fees under § 1988. The U.S. Supreme Court has held that a plaintiff "prevails" when actual relief on the merits of his or her claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). In that regard, the U.S. Supreme Court has said:
It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under § 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment e.g., a monetary settlement or a change in conduct that redresses the plaintiff's grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor.Hewitt v. Helms, 482 U.S. 755, 760-61, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987). Accord, A.J. by L.B. v. Kierst, 56 F.3d 849 (8th Cir. 1995); United Handicapped Federation v. Andre, 622 F.2d 342 (8th Cir. 1980).
In this case, Shearer succeeded in having her name expunged from the Registry, and the record would support the conclusion that this occurred because of Shearer's lawsuit.
We are prevented from ruling on the issue of attorney fees, however, by the failure of Shearer to present a record that would allow us to make an informed decision. The record indicates that a hearing on the motions for attorney fees was scheduled for August 8, 1997, at 8 a.m. Shearer's notice of appeal was filed on August 8 at 10:52 a.m. The record does not contain any indication of how the motions were ruled upon by the trial court or what the basis for those rulings may have been.
It is incumbent upon the party appealing to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court is to be affirmed. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997); Allphin v. Ward, 253 Neb. 302, 570 N.W.2d 360 (1997). Because the record does not reveal how the trial court ruled on the issue of attorney fees, we have no basis to do anything other than affirm the district court's judgment on this particular issue.
V. CONCLUSION
For the foregoing reasons, we conclude that Shearer's § 1983 action is completely barred by the sovereign immunity of DSS and the appellees in their official capacities and the qualified immunity of the appellees in their individual capacities. Although the district court erred in not so finding, a proper result will not be reversed merely because it was reached for the wrong reasons. Smith v. Papio-Missouri River NRD, 254 Neb. 405, 576 N.W.2d 797 (1998). We are precluded by the infirmity of the record from addressing Shearer's assignment of error regarding attorney fees. Consequently, the judgment of the district court is affirmed.
AFFIRMED.