Opinion
NO. 2011-CA-001095-MR
02-15-2013
ROBIN ROBINSON AND ROBIN SEXTON APPELLANTS v. KENTON COUNTY DETENTION CENTER; KENTON COUNTY FISCAL COURT; JAILER TERRY CARL AND DEPUTY JAILER RODNEY BALLARD IN THEIR OFFICIAL CAPACITIES AND THEIR INDIVIDUAL CAPACITIES APPELLEES
BRIEFS FOR APPELLANTS: Robert E. Blau Robert L. Poole Cold Spring, Kentucky BRIEF FOR APPELLEES KENTON COUNTY FISCAL COURT, KENTON COUNTY DETENTION CENTER, JAILER TERRY CARL IN HIS OFFICIAL CAPACITY, AND DEPUTY JAILER RODNEY BALLARD IN HIS OFFICAL CAPACITY: Jason V. Reed Covington, Kentucky BRIEF FOR APPELLEES RODNEY BALLARD AND TERRY CALL: Mary Ann Stewart Jennifer H. Langen Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 10-CI-01784
OPINION
AFFIRMING
BEFORE: DIXON, COMBS AND VANMETER, JUDGES. DIXON, JUDGE: Appellants, Robin Robinson and Robin Sexton, appeal from an order granting summary judgment in favor of Appellees, Kenton County Fiscal Court; Kenton County Detention Center; Jailer Terry Carl, in his official and individual capacities; and Deputy Jailer Rodney Ballard, in his official and individual capacities. The trial court concluded that suit against all Appellees was barred by sovereign, official and qualified official immunity. For the reasons set forth herein, we affirm.
On August 1, 2005, Michael Stokes was hired as a deputy jailer at the Kenton County Detention Center. On November 17, 2006, Sexton reported to deputy jailer Barb Edwards and Hal Spaw, an investigator for the public defender's office, that she had been sexually assaulted by Stokes a couple of days earlier. Edwards had Sexton write a statement about the incident and she then passed it up the chain of command. In addition, Spaw immediately reported the assault to Ballard, who then contacted Colonel Colvin and Captain Moore. Within one hour of Spaw's reporting of the incident, Ballard began an internal investigation, collected evidence and contacted the Kenton County Police Department to request a criminal investigation. Stokes was immediately placed on unpaid administrative leave.
On November 28, 2006, Robinson reported to Edwards that Stokes had assaulted her on November 2 and November 8, 2006. The same investigative procedure was conducted as had occurred with Sexton. On January 18, 2007, Stokes was charged with three counts of rape and three counts of sodomy. He was terminated by the detention center on the same day. Eventually, Stokes pled guilty to second-degree sexual abuse while being an employee of a detention center as defined in Kentucky Revised Statutes (KRS) 520.010, and subjecting an incarcerated offender to sexual contact in violation of KRS 510.120. Stokes was sentenced to twelve months' imprisonment.
In August 2007, Robinson and Sexton filed a federal 42 U.S.C. § 1983 action against Appellees asserting both federal and state claims. In May 2010, the United States District Court for the Eastern District of Kentucky granted summary judgment in favor of all defendants on the federal claims. Sexton v. Kenton County Detention Center, et al., 702 F. Supp. 784 (E.D. Ky. 2010). Further, the federal court declined to exercise jurisdiction over the state law claims and dismissed the matter.
On June 2, 2010, Robinson and Sexton filed the instant action in the Kenton Circuit Court against all Appellees alleging negligent hiring, supervision, and retention of Stokes, as well as negligent operation of the detention center. In February 2011, the fiscal court, detention center, and Ballard and Carl, in their official capacities, filed a motion for summary judgment on the grounds of sovereign immunity. In addition, Ballard and Carl, in their individual capacities, moved for summary judgment under the doctrine of qualified official immunity. On May 18, 2011, the trial court granted summary judgment in favor of Appellees and dismissed all claims. Robinson and Sexton's motion to alter, amend or vacate was subsequently denied. This appeal ensued.
Our standard of review on appeal of a summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id.
As it relates to an assertion of sovereign immunity and other related claims of immunity, Kentucky has recognized that resolution of such claims is a matter of judicial determination via summary judgment. Withers v. University of Kentucky, 939 S.W.2d 340, 342 (Ky. 1997); Estate of Clark v. Daviess County, 105 S.W.3d 841, 844 (Ky. App. 2003). Finally, since summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
Robinson and Sexton argue on appeal that the trial court erred in summarily ruling that all Appellees were entitled to immunity from legal action herein. We must disagree. Since the Kentucky Supreme Court rendered the decision in Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), Kentucky jurisprudence as it relates to sovereign immunity, governmental immunity, and qualified immunity is clear. Herein, we will address how each applies to bar Robinson's and Sexton's claims against all Appellees.
In Yanero, our Supreme Court recognized that the doctrine of sovereign immunity has long been applicable to the Commonwealth of Kentucky. "It is an inherent attribute of a sovereign state that precludes the maintaining of any suit against the state unless the state has given its consent or otherwise waived its immunity." Id. at 517 (citations omitted). As noted by the trial court, the Kenton County Detention Center is merely an operational endeavor of the Kenton County Fiscal Court which, in turn, is part of Kenton County. Thus, any action against the fiscal court is essentially an action against the county, which is barred by sovereign immunity. Franklin County v. Malone, 957 S.W.2d 195, 201 (Ky. 1997), overruled in part by Yanero, 65 S.W.3d at 523, and overruled in part on other grounds by Commonwealth, Bd. of Claims v. Harris, 59 S.W.3d 896 (2001). (Citing Ky. Const. 231 and Littlejohn v. Rose, 768 F.2d 765 (6th Cir. 1985)). Accordingly, the fiscal court and detention center are immune from suit under the doctrine of sovereign immunity and the trial court properly granted summary judgment in favor of both.
The absolute immunity from suit afforded to the county also extends to public officials sued in their representative (official) capacities. As stated in Yanero, "Official immunity can be absolute, as when an officer or employee of the state is sued in his/her representative capacity, in which event his/her actions are included under the umbrella of sovereign immunity . . . ." Id. at 522. As a result, Jailer Carl and Deputy Jailer Ballard, in their official capacities, were also cloaked in absolute immunity and, thus, entitled to summary judgment.
Finally, we consider whether summary judgment in favor of Carl and Ballard, in their individual capacities, was proper. Yanero holds that public officers and employees are entitled to "qualified official immunity" for negligent conduct when the negligent act or omissions were (1) discretionary acts or functions, i.e., those that involve the "exercise of discretion and judgment, or personal deliberation, decision, and judgment;" (2) that were made in good faith; and (3) were within the scope of the employee's authority. Id. at 522. On the other hand, no immunity is afforded for the negligent performance or omissions of a ministerial act, or if the officer or employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive. Id.
A ministerial act is "one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Yanero, 65 S.W.3d at 522.
Robinson and Sexton argue that Carl and Ballard are not entitled to qualified immunity on their claims of negligent hiring, retention, and supervision. They do not question whether Carl and Ballard were acting within the scope of their authority. Nor do they dispute that supervision and retention of Stokes were discretionary functions. See Rowan County v. Sloas, 201 S.W.3d 469 (Ky. 2006), and Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824 (Ky. 2004). They do assert, however, that the hiring of Stokes was a ministerial rather than discretionary function. Further, they claim that Carl and Ballard did not act in good faith in that they should have been aware of Stokes's propensity to commit sexual assault from his criminal history, his poor performance on the police academy training test, and his repetitive tardiness and absenteeism.
We do not find any merit in Robinson and Sexton's claim that the hiring of Stokes was a ministerial function. While the Yanero Court did comment that there is "a ministerial aspect to the hiring process in that the person or persons to whom the hiring of subordinates is entrusted must at least attempt to hire someone who is not incompetent[,]" the Court further stated that "[e]valuating the credentials of a prospective employee is an inherently subjective process which, of course, is the essence of a discretionary function." Yanero, 65 S.W.3d at 528. We discern no facts that would lead to the conclusion that Carl and Ballard did anything other than attempt to hire a competent person. To the contrary, the record supports a finding that prior to hiring Stokes, Carl and Ballard considered his background, qualifications and numerous letters of recommendation, including one from a police chief. Further, Ballard explained that the decision was based, in part, upon his personal observation of Stokes who, as a referee in a youth basketball league, had made a favorable impression upon Ballard for his ability to maintain composure and control players, fans and coaches during an atmosphere that was often tense. Ballard was of the opinion that such attribute would be an asset in the corrections field. Clearly, the decision to hire Stokes was based upon an evaluation of numerous factors, all of which underscore the discretionary nature of the hiring decision.
Having established that the hiring, retention and supervision of Stokes were all discretionary functions within the scope of Carl and Ballard's authority, the burden shifts to Robinson and Sexton "to establish by direct or circumstantial evidence that the discretionary [acts were] not performed in good faith." Yanero, 65 S.W.3d at 523. Significantly, as the trial court pointed out, the question is not whether Carl and Ballard acted negligently in their actions with respect to Stokes, but whether they acted in good faith.
"'Good faith,' however, is somewhat of a misnomer, as the proof is really of 'bad faith.' In fact, in most cases, 'good faith' is just a presumption that exists absent evidence of 'bad faith.'" Sloas, 201 S.W.3d at 475. In Yanero, the Court explained,
[I]n the context of qualified official immunity, bad faith can be predicated on a violation of a constitutional, statutory, or other clearly established right which a person in a public employee's position presumptively would have known was afforded to a person in the plaintiff's position ... or if the officer or employee willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive.Id. at 523 (citing 63C Am.Jur.2d, Public Officers and Employees, § 333 (1997)).
Certainly, there is no question that Stokes violated Robinson's and Sexton's constitutional rights. However, the mere fact that a plaintiff was harmed by a bad or even negligent decision by a public employee will not convert the action into "bad faith" and defeat the entitlement to qualified immunity. "If this were not so, then the fact of the wrong would always obviate the immunity . . . ." Sloas, 201 S.W.3d at 483 (emphasis omitted). Rather,
there must be a causally related "violation of a constitutional, statutory, or other clearly established right" of the complainant. [Yanero, 65 SW.3d at 523]. It is these causally related violations or acts which are measured against the standards of discretionary or ministerial duties, not the distant myriad acts or omissions that one could logically construct to have preceded them. "[I]f one retreats far enough from a . . . violation[, a distant act or omission] can be identified behind almost any such harm inflicted . . . . At the very least there must be an affirmative link between [the act or omission] and the ... violation alleged." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791(1985).Sloas, 201 S.W.3d at 476.
Thus, the fact that Robinson's and Sexton's rights were violated is only relevant if it can be demonstrated that someone in Carl and Ballard's position, given what information they had at the time they hired, retained and/or supervised Stokes, should have known that he would likely sexually assault Robinson and Sexton, and that they acted unreasonably in light of that knowledge. In other words, Carl and Ballard's qualified immunity can only be defeated by evidence that each knew or should have known that their actions with respect to Stokes would violate Robinson's and Sexton's rights, or that they "willfully or maliciously intended to harm Robinson and Sexton or acted with a corrupt motive." Id. at 481. We agree with the trial court that there is no evidence in the record to support such finding.
As Robinson and Sexton point out, Stokes's background check revealed convictions for non-support, driving infractions, and a misdemeanor assault charge involving a domestic situation. Although Robinson and Sexton maintain that such is evidence that Carl and Ballard turned a "blind eye" to Stokes's criminal history, it is clear that none of Stokes's prior offenses demonstrated a propensity to commit rape. Quite simply, there is no evidence that Carl and Ballard knew or should have known from Stokes's criminal record that he would subsequently inflict the particular injuries suffered by Robinson and Sexton.
We likewise find no merit in Robinson and Sexton's claim that Carl and Ballard's failure to discipline and/or terminate Stokes's for his repetitive tardiness and absenteeism was evidence of bad faith. As did the trial court, we find no correlation between Stokes's attendance record and the fact that he subsequently raped Robinson and Sexton. Until the incidents in question, the only complaints that Carl or Ballard had received about Stokes concerned his tardiness and absenteeism. Similarly, there is nothing in the record to demonstrate that Carl and Ballard had a practice of improper supervision which they knew or should have known would result in the particular crimes. Again, the question is not whether Carl and Ballard acted negligently but, rather, whether they acted in bad faith. We agree with the trial court that there is simply no evidence they acted in such manner.
Our law is clear that evidence of negligence alone is insufficient to impose liability upon a public officer for discretionary actions, undertaken in good faith and within the scope of authority. We conclude that no genuine issue of material fact existed regarding bad faith on the part of either Carl or Ballard. Accordingly, the trial court properly granted summary judgment in favor of both in their individual capacities. Because we have determined that Carl and Ballard were both entitled to qualified official immunity, we necessarily do not reach Robinson's and Sexton's negligent claims.
For the reasons set forth herein, the order of the Kenton Circuit Court granting summary judgment in favor of Appellees is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Robert E. Blau
Robert L. Poole
Cold Spring, Kentucky
BRIEF FOR APPELLEES KENTON
COUNTY FISCAL COURT,
KENTON COUNTY DETENTION
CENTER, JAILER TERRY CARL IN
HIS OFFICIAL CAPACITY, AND
DEPUTY JAILER RODNEY
BALLARD IN HIS OFFICAL
CAPACITY:
Jason V. Reed
Covington, Kentucky
BRIEF FOR APPELLEES
RODNEY BALLARD AND
TERRY CALL:
Mary Ann Stewart
Jennifer H. Langen
Covington, Kentucky