Opinion
NO. CIV. 1:10-341 WBS
10-28-2011
MARK S. WICKLUND, an individual, Plaintiff, v. PAMELA HUNTSMAN, an individual, THOMAS HEARN, an individual, GARY O. HORTON, an individual, MOSCELENE SUNDERLAND, an individual, and KATHY BAIRD, an individual, and SEXUAL OFFENDER CLASSIFICATION BOARD, Defendants.
MEMORANDUM AND ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
Plaintiff Mark Wicklund brought this 42 U.S.C. § 1983 action against defendants Pamela Huntsman, Thomas Hearn, Gary Horton, Moscelene Sunderland, Kathy Baird, and the Sexual Offender Classification Board ("SOCB" or "Board") arising out of defendants' alleged violation of plaintiff's right to due process. Presently before this court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
I. Factual and Procedural Background
Plaintiff has been convicted of multiple sexual offenses in multiple states. (Baird Aff. Ex. 4 at 103, 178-314; Ex. 3.) Plaintiff was referred to the SOCB to determine whether he qualified as a "violent sexual predator" ("VSP") after violating his parole as to a 2001 conviction. (Id. at Ex. 4, SOCB 169-71.) Plaintiff was notified that the SOCB designated him as VSP in a notice dated April 25, 2008.
Defendants Huntsman, Hearn, Horton, and Sunderland were members of the SOCB when plaintiff's VSP determination was made. Baird served as secretary for the SOCB, but was not an SOCB member. Baird claims that she did not participate in the decision to categorize plaintiff as a VSP. (Id. ¶ 5.)
Plaintiff's VSP designation was conducted pursuant to the Sexual Offender Registration Notification and Community Right-to-Know Act ("Act"), Idaho Code Ann. § 18-8301 (2008), invalidated by Smith v. State, 146 Idaho 822 (2009). A VSP was defined as "a person who has been convicted of an offense listed in section 18-8314, Idaho Code, and who has been determined to pose a high risk of committing an offense or engaging in predatory sexual conduct." Id. § 18-8303(15). The Act described various factors that the SOCB could consider in making its determination, id. § 18-8314(5)(b), but regardless of the guideline, an offender could be designated a VSP based on a determination that the offender intends to reoffend, id. § 18-8314(6).
On February 10, 2009, the Idaho Supreme Court held in Smith v. State that there were "significant constitutional shortcomings in the statutory procedure [for determining VSP status] . . . ." Smith, 146 Idaho at 827. As a result of the decision in Smith, the state district court issued an order on April 3, 2009, vacating plaintiff's VSP designation. See Order Vacating VSP Designation & Remand, No. CV OC 2008-08265 (Ada Cnty. Dist. Ct. Apr. 3, 2009). Plaintiff alleges that, following the order, the SOCB meeting minutes indicating that plaintiff was a VSP remained public and available on the internet. (Compl. ¶ 27.)
In October 2009, pursuant to plaintiff's request, the SOCB amended their meeting notes regarding plaintiff's designation to read:
Probationer Mark Wicklund, #64908 was designated a violent sexual predator.(Baird Aff. ¶ 9, Ex. 9.) Plaintiff alleges that the amended meeting notes were not published to the internet until February 2010, and that the amended version of the notes continues to stigmatize him. (Compl. ¶¶ 30, 31.)
Amendment: This designation was vacated pursuant to the court's order in Ada County Case No. CV OC 2008-08265.
Plaintiff filed his Complaint in this case on July 6, 2010, alleging claims under 42 U.S.C. § 1983. (Docket No. 1.) Plaintiff alleges that defendants violated "his due process rights by designating him a [VSP] without granting him the opportunity to participate or otherwise defend himself in the process." (Id. ¶ 37.) Defendants now move for summary judgment on the grounds that plaintiff's claims are untimely; plaintiff's claim against the SOCB and his official capacity claims against the individual defendants are barred by the Eleventh Amendment; defendants are not subject to § 1983 liability; plaintiff's claim is barred by the Rooker-Feldman doctrine; defendants are entitled to absolute and qualified immunity; and plaintiff fails to plead facts supporting his claim for stigma damages.
Plaintiff has agreed to dismiss his claims against defendants SOCB and Baird. (Pl.'s Resp. to Mot. for Summ. J. at 7.)
II. Discussion
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the moving party can demonstrate that the non-moving party cannot produce evidence to support an essential element upon which it will bear the burden of proof at trial. Id.
Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Id.
A. Absolute Immunity
Defendants contend that they are entitled to absolute judicial immunity because they perform quasi-judicial functions as members of the SOCB. Plaintiff concedes that defendants are "entitled to absolute immunity as their actions meet the definition of quasi-judicial functions." (Pl.'s Resp. to Defs.' Mot. for Summ. J. at 5.) Instead, plaintiff argues that the case law surrounding quasi-judicial immunity "is ripe to be overturned and/or further limited." Id.
It is well-established that judges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). "[C]ourts have extended the protections of absolute immunity to qualifying state officials sued under 42 U.S.C. § 1983." Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir. 2004). "The determination of immunity is a question of law." Id. at 921.
"Absolute immunity flows not from rank or title . . . but from the nature of the responsibilities of the individual official." Cleavinger v. Saxner, 474 U.S. 193, 201 (1985). The Supreme Court has developed the "functional approach" in determining if immunity is appropriate. Olsen, 393 F.3d at 923. The court "must consider whether the actions taken by the official are 'functionally comparable' to that of a judge or a prosecutor." Id. Such activities are referred to as quasi-judicial. See Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008). The United States Supreme Court has outlined several factors that are characteristic of judicial decisionmaking under the functional approach:
(1) the need to insulate the official from harassment or intimidation; (2) the presence of procedural safeguards to reduce unconstitutional conduct; (3) insulation from political influence; (4) the importance of precedent in the official's decision; (5) the adversary nature of the process; and (6) the correctability of error on appeal.Id. at 1145 (citing Cleavinger, 474 U.S. at 202). "This list of factors is nonexhaustive, however, and an official need not satisfy every factor to be entitled to absolute quasi-judicial immunity." Id.
The factual allegations against defendants concern only their role as official decisionmakers on the SOCB. This role bears significant resemblance to the decisionmaking conducted by parole board officers, for which the parole board officers are entitled to absolute judicial immunity. See Sellers v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981) (holding that parole board members are entitled to absolute immunity); Miller, 521 F.3d at 1145-46 (holding that the governor's review of parole board decisions is entitled to absolute immunity); see also Stafford v. Powers, No. 10-35356, 2011 WL 3585621, at *1 (9th Cir. Aug. 16, 2011) (holding that parole board members are entitled to absolute immunity for their decision to designate an individual as a predatory sex offender without an evidentiary hearing).
i. The Need to Insulate the Official from Harassment or Intimidation
As members of the SOCB, defendants were charged with "determin[ing] whether the offender should be designated as a violent sexual predator presenting a high risk of reoffense." Idaho Code Ann. § 18-8314(1) (2008). If individual board members were subject to suit by every disgruntled sexual offender who came before the SOCB, the Board's functioning would have been significantly impaired. Just as with judges or parole board members, if Board members knew they could be dragged into court over each VSP designation, "there is the same danger that the decision-maker might not impartially adjudicate the often difficult cases that come before them." Sellers, 641 F.2d at 1303.
ii. The Presence of Procedural Safeguards to Reduce Unconstitutional Conduct
The Idaho statute establishing the SOCB requires the Board to promulgate and use "guidelines to determine whether an offender who meets the criteria of this section is a violent sexual predator presenting a high risk of reoffense." Idaho Code Ann. § 18-8314(5) (2008). The Board was also required to make written findings that included the Board's risk assessment, the basis for the risk assessment, the Board's determination, and the basis for the determination. See id. § 18-8314(5)(b). Consistent with the Idaho statute, the Board promulgated rules to determine if an offender's "risk of re-offending sexually or threat of violence is of a sufficient concern to warrant the [VSP] designation for the safety of the community." Smith, 146 Idaho at 826. To make this determination, the Board "assess[ed] how biological, psychological, and situational factors, may cause or contribute to the offender's sexual behavior." Id. Following the Board's determination, it was required to provide the offender with notice of the proceeding's outcome. Idaho Code Ann. § 18-8319(1) (2008). The procedural safeguards governing the Board's determinations, including the requirement to make written findings, closely resembles judicial decisionmaking.
iii. Insulation from Political Influence
Defendants were appointed by the governor by and with
the advice and consent of the Idaho Senate. Id. § 18-8312(1). Board members could only be removed "for reasons of inefficiency, neglect of duty, malfeasance in office, commission of a felony or inability to perform the duties of office." Id. § 18-8313. The SOCB thus was insulated from political influence because individual Board members could not be removed at will.
iv. The Importance of Precedent in the Official's
Decision
While defendants do not argue that the SOCB was required to consider precedent, it does appear that the Board was required to consider the application of its promulgated rules in making its determination as to an individual's VSP status. This suggests that defendants were indeed required to consider precedent in reaching their decisions.
v. The Adversary Nature of the Process
The SOCB procedures were not adversarial in nature as offenders are not invited to participate in the proceedings.
vi. The Correctability of Error on Appeal
The SOCB was required to provide the offender notice of its determination. Id. § 18-8319(1). An offender was then able to challenge the VSP designation by judicial review. Id. § 18-8319(a); Lichtner v. Idaho, 142 Idaho 324, 326 (Ct. App. 2005) ("An offender's challenge to being designated as a VSP initiates a 'nonadversarial' proceeding which is civil and remedial in nature."). The Idaho Supreme Court noted in Smith that this review process was imperfect and violated offenders' procedural due process rights because "the offender is provided only a summary of the information considered by the Board, presenting little meaningful opportunity to respond to specific information considered by the Board." Smith, 146 Idaho at 830. Despite this problem, errors by the SOCB were subject to judicial review and were correctable on appeal. Id. at 1226-29.
The need to insulate Board members from harassment, the statutorily imposed procedural safeguards, the Board's political independence, the importance of precedent, and the availability of judicial review all functionally resemble judicial decisionmaking. Board members' determinations of offenders' VSP status "shares enough of the characteristics of the judicial process," Butz, 438 U.S. at 513, to warrant absolute quasi-judicial immunity.
Despite the fact that defendants are entitled to absolute immunity, plaintiff urges this court to overturn or narrow the scope of the existing case law. First, plaintiff argues that current case law on absolute immunity should be overturned because it ignores the fact that "[s]imply because a choice involves discretion does not mean it is a judicial act." (Pl.'s Resp. to Defs.' Mot. for Summ. J. at 6.) Plaintiff's contention oversimplifies the absolute immunity jurisprudence --discretion alone is not determinative of whether a decision is quasi-judicial, rather courts apply a "functional approach" to distinguish whether an action is comparable to those taken by judges. Olsen, 393 F.3d at 923. Plaintiff argues that in the Board's work classifying individuals, they "act[ed] more [as] psychologists or mental health professionals than judges" and were not engaged in factfinding. (Pl.'s Resp. to Defs.' Mot. for Summ. J. at 5.) The fact that SOCB members are exercising their professional judgments as mental health professionals is not determinative, as professional judgment is often required by judges and prosecutors in their decisionmaking.
Second, plaintiff argues that his VSP designation, and the Board's actions generally, violate his Sixth Amendment right to have findings of fact made by a jury. (Pl.'s Resp. to Defs.' Mot. for Summ. J. at 6.) Plaintiff fails to address how this is relevant to absolute immunity. This argument directly contradicts plaintiff's contention above that the SOCB was not engaged in factfinding, by contending that Board's determination was based on factfinding that should have been done by a jury. Furthermore, plaintiff's reliance on Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000), is misplaced because those cases dealt with non-jury factfinding being used to expose the defendant to a higher penalties under federal sentencing guidelines. In other words, the decisions in Ring and Apprendi objected to the punitive nature of the determination. Sexual offender registration laws have previously been upheld as both nonpunitive and not violations of the Ex Post Facto clause. Smith v. Doe, 538 U.S. 84, 105-06 (2003); Hatton v. Bonner, 356 F.3d 955, 961-67 (9th Cir. 2004). The SOCB does not determine if an offender should be registered as a sexual offender, it determines whether the offender should be registered at a higher classification as a VSP. Offenders classified as VSP must update their registration more often than non-VSP sexual offenders, but it is still a nonpunitive registration requirement.
Plaintiff's has not alleged a § 1983 claim based on a violation of his Sixth Amendment right to a jury trial.
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Finally, plaintiff "asks this Court to carve out an exception from current case law for instances where agencies act outside a proper delegation of judicial authority." (Pl.'s Resp. to Defs.' Mot. for Summ. J. at 6.) There is no need to carve out a new exception, as such an exception already exists in the case law. See Stump v. Sparkman, 435 U.S. 349, 349-50 (1978) ("A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority, but rather he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.'" (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871))). In this case, however, plaintiff does not claim that defendants' action exceeded their delegation of authority from the legislature. To the contrary, plaintiff argues that defendants acted pursuant to that delegation, and it is the delegation which he contends was unconstitutional. This is not a case where it can be argued that defendants acted in the clear absence of all jurisdiction.
Plaintiff's arguments for overturning existing precedent are not compelling. This court is bound to follow the precedent established by the Ninth Circuit Court of Appeals and the United States Supreme Court. Accordingly, because defendants are entitled to absolute immunity, the court will grant defendants' motion for summary judgment.
B. Remaining Summary Judgment Arguments
Because the court will grant defendants' motion for summary judgment on absolute immunity grounds, it need not address defendants' other arguments.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment be, and the same hereby is, GRANTED.
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE