Wicklund v. Huntsman et al

Filing 33

MEMORANDUM AND ORDER Granting 22 MOTION for Summary Judgment. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF IDAHO

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MARK S. WICKLUND, an individual,
NO. CIV. 1:10-341 WBS
Plaintiff,

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v.

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MEMORANDUM AND ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT

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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,

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Defendants.

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/

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Plaintiff Mark Wicklund brought this 42 U.S.C. § 1983

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action against defendants Pamela Huntsman, Thomas Hearn, Gary

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Horton, Moscelene Sunderland, Kathy Baird, and the Sexual

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Offender Classification Board (“SOCB” or “Board”) arising out of

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defendants’ alleged violation of plaintiff’s right to due

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process.

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summary judgment pursuant to Federal Rule of Civil Procedure 56.

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I.

Presently before this court is defendants’ motion for

Factual and Procedural Background
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Plaintiff has been convicted of multiple sexual

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offenses in multiple states.

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Ex. 3.)

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he qualified as a “violent sexual predator” (“VSP”) after

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violating his parole as to a 2001 conviction.

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SOCB 169-71.)

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him as VSP in a notice dated April 25, 2008.

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(Baird Aff. Ex. 4 at 103, 178-314;

Plaintiff was referred to the SOCB to determine whether

(Id. at Ex. 4,

Plaintiff was notified that the SOCB designated

Defendants Huntsman, Hearn, Horton, and Sunderland were
members of the SOCB when plaintiff’s VSP determination was made.

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Baird served as secretary for the SOCB, but was not an SOCB

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member.

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decision to categorize plaintiff as a VSP.

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Baird claims that she did not participate in the
(Id. ¶ 5.)

Plaintiff’s VSP designation was conducted pursuant to

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the Sexual Offender Registration Notification and Community

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Right-to-Know Act (“Act”), Idaho Code Ann. § 18-8301 (2008),

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invalidated by Smith v. State, 146 Idaho 822 (2009).

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defined as “a person who has been convicted of an offense listed

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in section 18-8314, Idaho Code, and who has been determined to

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pose a high risk of committing an offense or engaging in

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predatory sexual conduct.”

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various factors that the SOCB could consider in making its

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determination, id. § 18-8314(5)(b), but regardless of the

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guideline, an offender could be designated a VSP based on a

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determination that the offender intends to reoffend, id. § 18-

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8314(6).

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Id. § 18-8303(15).

A VSP was

The Act described

On February 10, 2009, the Idaho Supreme Court held in

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Smith v. State that there were “significant constitutional

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shortcomings in the statutory procedure [for determining VSP
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status] . . . .”

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decision in Smith, the state district court issued an order on

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April 3, 2009, vacating plaintiff’s VSP designation.

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Vacating VSP Designation & Remand, No. CV OC 2008-08265 (Ada

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Cnty. Dist. Ct. Apr. 3, 2009).

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the order, the SOCB meeting minutes indicating that plaintiff was

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a VSP remained public and available on the internet.

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27.)

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Smith, 146 Idaho at 827.

As a result of the

See Order

Plaintiff alleges that, following

(Compl. ¶

In October 2009, pursuant to plaintiff’s request, the

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SOCB amended their meeting notes regarding plaintiff’s

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designation to read:

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Probationer Mark Wicklund, #64908 was designated a
violent sexual predator.
Amendment: This designation was vacated pursuant to the
court’s order in Ada County Case No. CV OC 2008-08265.

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(Baird Aff. ¶ 9, Ex. 9.)

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meeting notes were not published to the internet until February

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2010, and that the amended version of the notes continues to

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stigmatize him.

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Plaintiff alleges that the amended

(Compl. ¶¶ 30, 31.)

Plaintiff filed his Complaint in this case on July 6,

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2010, alleging claims under 42 U.S.C. § 1983.

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Plaintiff alleges that defendants violated “his due process

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rights by designating him a [VSP] without granting him the

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opportunity to participate or otherwise defend himself in the

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process.”

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on the grounds that plaintiff’s claims are untimely; plaintiff’s

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claim against the SOCB and his official capacity claims against

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the individual defendants are barred by the Eleventh Amendment;

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defendants are not subject to § 1983 liability; plaintiff’s claim

(Id. ¶ 37.)

(Docket No. 1.)

Defendants now move for summary judgment

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is barred by the Rooker-Feldman doctrine; defendants are entitled

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to absolute and qualified immunity; and plaintiff fails to plead

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facts supporting his claim for stigma damages.1

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II.

Discussion

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Summary judgment is proper “if the movant shows that

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there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.”

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P. 56(a).

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of the suit, and a genuine issue is one that could permit a

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reasonable jury to enter a verdict in the non-moving party’s

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favor.

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(1986).

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burden of establishing the absence of a genuine issue of material

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fact and can satisfy this burden by presenting evidence that

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negates an essential element of the non-moving party’s case.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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Alternatively, the moving party can demonstrate that the

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non-moving party cannot produce evidence to support an essential

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element upon which it will bear the burden of proof at trial.

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Id.

Fed. R. Civ.

A material fact is one that could affect the outcome

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
The party moving for summary judgment bears the initial

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Once the moving party meets its initial burden, the

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burden shifts to the non-moving party to “designate ‘specific

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facts showing that there is a genuine issue for trial.’”

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324 (quoting then-Fed. R. Civ. P. 56(e)).

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the non-moving party must “do more than simply show that there is

Id. at

To carry this burden,

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Plaintiff has agreed to dismiss his claims against
defendants SOCB and Baird. (Pl.’s Resp. to Mot. for Summ. J. at
7.)
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some metaphysical doubt as to the material facts.”

Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

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“The mere existence of a scintilla of evidence . . . will be

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insufficient; there must be evidence on which the jury could

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reasonably find for the [non-moving party].”

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at 252.

Anderson, 477 U.S.

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In deciding a summary judgment motion, the court must

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view the evidence in the light most favorable to the non-moving

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party and draw all justifiable inferences in its favor.

Id. at

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255.

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and the drawing of legitimate inferences from the facts are jury

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functions, not those of a judge . . . ruling on a motion for

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summary judgment . . . .”

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“Credibility determinations, the weighing of the evidence,

A.

Id.

Absolute Immunity

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Defendants contend that they are entitled to absolute

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judicial immunity because they perform quasi-judicial functions

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as members of the SOCB.

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“entitled to absolute immunity as their actions meet the

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definition of quasi-judicial functions.”

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Mot. for Summ. J. at 5.)

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law surrounding quasi-judicial immunity “is ripe to be overturned

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and/or further limited.”

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Plaintiff concedes that defendants are

(Pl.’s Resp. to Defs.’

Instead, plaintiff argues that the case

Id.

It is well-established that judges and those performing

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judge-like functions are absolutely immune from damage liability

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for acts performed in their official capacities.

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Sparkman, 435 U.S. 349, 355-56 (1978); Ashelman v. Pope, 793 F.2d

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1072, 1075 (9th Cir. 1986).

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protections of absolute immunity to qualifying state officials

Stump v.

“[C]ourts have extended the

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sued under 42 U.S.C. § 1983.”

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363 F.3d 916, 923 (9th Cir. 2004).

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immunity is a question of law.”

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Olsen v. Idaho State Bd. of Med.,
“The determination of

Id. at 921.

“Absolute immunity flows not from rank or title . . .

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but from the nature of the responsibilities of the individual

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official.”

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Supreme Court has developed the “functional approach” in

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determining if immunity is appropriate.

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The court “must consider whether the actions taken by the

Cleavinger v. Saxner, 474 U.S. 193, 201 (1985).

The

Olsen, 393 F.3d at 923.

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official are ‘functionally comparable’ to that of a judge or a

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prosecutor.”

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judicial.

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2008).

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factors that are characteristic of judicial decisionmaking under

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the functional approach:

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Id.

Such activities are referred to as quasi-

See Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir.

The United States Supreme Court has outlined several

(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.

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Id. at 1145 (citing Cleavinger, 474 U.S. at 202).

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factors is nonexhaustive, however, and an official need not

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satisfy every factor to be entitled to absolute quasi-judicial

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immunity.”

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“This list of

Id.
The factual allegations against defendants concern only

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their role as official decisionmakers on the SOCB.

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bears significant resemblance to the decisionmaking conducted by

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parole board officers, for which the parole board officers are

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entitled to absolute judicial immunity.
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This role

See Sellers v.

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Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981) (holding that

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parole board members are entitled to absolute immunity); Miller,

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521 F.3d at 1145-46 (holding that the governor’s review of parole

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board decisions is entitled to absolute immunity); see also

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Stafford v. Powers, No. 10-35356, 2011 WL 3585621, at *1 (9th

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Cir. Aug. 16, 2011) (holding that parole board members are

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entitled to absolute immunity for their decision to designate an

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individual as a predatory sex offender without an evidentiary

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hearing).

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i.

The Need to Insulate the Official from Harassment
or Intimidation

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As members of the SOCB, defendants were charged with

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“determin[ing] whether the offender should be designated as a

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violent sexual predator presenting a high risk of reoffense.”

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Idaho Code Ann. § 18-8314(1) (2008).

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were subject to suit by every disgruntled sexual offender who

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came before the SOCB, the Board’s functioning would have been

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significantly impaired.

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members, if Board members knew they could be dragged into court

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over each VSP designation, “there is the same danger that the

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decision-maker might not impartially adjudicate the often

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difficult cases that come before them.”

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1303.

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ii.

If individual board members

Just as with judges or parole board

Sellers, 641 F.2d at

The Presence of Procedural Safeguards to Reduce
Unconstitutional Conduct

The Idaho statute establishing the SOCB requires the

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Board to promulgate and use “guidelines to determine whether an

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offender who meets the criteria of this section is a violent
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sexual predator presenting a high risk of reoffense.”

Idaho Code

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Ann. § 18-8314(5) (2008).

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written findings that included the Board’s risk assessment, the

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basis for the risk assessment, the Board’s determination, and the

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basis for the determination.

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Consistent with the Idaho statute, the Board promulgated rules to

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determine if an offender’s “risk of re-offending sexually or

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threat of violence is of a sufficient concern to warrant the

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[VSP] designation for the safety of the community.”

The Board was also required to make

See id. § 18-8314(5)(b).

Smith, 146

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Idaho at 826.

To make this determination, the Board “assess[ed]

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how biological, psychological, and situational factors, may cause

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or contribute to the offender’s sexual behavior.”

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the Board’s determination, it was required to provide the

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offender with notice of the proceeding’s outcome.

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Ann. § 18-8319(1) (2008).

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the Board’s determinations, including the requirement to make

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written findings, closely resembles judicial decisionmaking.

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iii. Insulation from Political Influence

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Defendants were appointed by the governor by and with

Id.

Following

Idaho Code

The procedural safeguards governing

Id. § 18-8312(1).

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the advice and consent of the Idaho Senate.

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Board members could only be removed “for reasons of inefficiency,

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neglect of duty, malfeasance in office, commission of a felony or

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inability to perform the duties of office.”

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SOCB thus was insulated from political influence because

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individual Board members could not be removed at will.

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iv.

Id. § 18-8313.

The Importance of Precedent in the Official’s
Decision

While defendants do not argue that the SOCB was
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The

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required to consider precedent, it does appear that the Board was

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required to consider the application of its promulgated rules in

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making its determination as to an individual’s VSP status.

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suggests that defendants were indeed required to consider

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precedent in reaching their decisions.

This

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v.

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The SOCB procedures were not adversarial in nature as

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The Adversary Nature of the Process

offenders are not invited to participate in the proceedings.

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vi.

The Correctability of Error on Appeal

The SOCB was required to provide the offender notice of

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its determination.

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to challenge the VSP designation by judicial review.

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8319(a); Lichtner v. Idaho, 142 Idaho 324, 326 (Ct. App. 2005)

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(“An offender’s challenge to being designated as a VSP initiates

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a ‘nonadversarial’ proceeding which is civil and remedial in

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nature.”).

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review process was imperfect and violated offenders’ procedural

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due process rights because “the offender is provided only a

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summary of the information considered by the Board, presenting

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little meaningful opportunity to respond to specific information

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considered by the Board.”

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problem, errors by the SOCB were subject to judicial review and

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were correctable on appeal.

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Id. § 18-8319(1).

An offender was then able
Id. § 18-

The Idaho Supreme Court noted in Smith that this

Smith, 146 Idaho at 830.

Despite this

Id. at 1226-29.

The need to insulate Board members from harassment, the

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statutorily imposed procedural safeguards, the Board’s political

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independence, the importance of precedent, and the availability

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of judicial review all functionally resemble judicial

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decisionmaking.

Board members’ determinations of offenders’ VSP
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status “shares enough of the characteristics of the judicial

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process,” Butz, 438 U.S. at 513, to warrant absolute quasi-

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judicial immunity.
Despite the fact that defendants are entitled to

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absolute immunity, plaintiff urges this court to overturn or

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narrow the scope of the existing case law.

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argues that current case law on absolute immunity should be

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overturned because it ignores the fact that “[s]imply because a

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choice involves discretion does not mean it is a judicial act.”

First, plaintiff

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(Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 6.)

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contention oversimplifies the absolute immunity jurisprudence --

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discretion alone is not determinative of whether a decision is

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quasi-judicial, rather courts apply a “functional approach” to

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distinguish whether an action is comparable to those taken by

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judges.

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Board’s work classifying individuals, they “act[ed] more [as]

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psychologists or mental health professionals than judges” and

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were not engaged in factfinding.

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Summ. J. at 5.)

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professional judgments as mental health professionals is not

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determinative, as professional judgment is often required by

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judges and prosecutors in their decisionmaking.

Olsen, 393 F.3d at 923.

Plaintiff’s

Plaintiff argues that in the

(Pl.’s Resp. to Defs.’ Mot. for

The fact that SOCB members are exercising their

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Second, plaintiff argues that his VSP designation, and

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the Board’s actions generally, violate his Sixth Amendment right

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to have findings of fact made by a jury.2

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Mot. for Summ. J. at 6.)

(Pl.’s Resp. to Defs.’

Plaintiff fails to address how this is

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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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relevant to absolute immunity.

This argument directly

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contradicts plaintiff’s contention above that the SOCB was not

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engaged in factfinding, by contending that Board’s determination

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was based on factfinding that should have been done by a jury.

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Furthermore, plaintiff’s reliance on Ring v. Arizona, 536 U.S.

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584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000), is

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misplaced because those cases dealt with non-jury factfinding

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being used to expose the defendant to a higher penalties under

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federal sentencing guidelines.

In other words, the decisions in

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Ring and Apprendi objected to the punitive nature of the

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determination.

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been upheld as both nonpunitive and not violations of the Ex Post

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Facto clause.

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v. Bonner, 356 F.3d 955, 961-67 (9th Cir. 2004).

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not determine if an offender should be registered as a sexual

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offender, it determines whether the offender should be registered

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at a higher classification as a VSP.

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must update their registration more often than non-VSP sexual

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offenders, but it is still a nonpunitive registration

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requirement.

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Sexual offender registration laws have previously

Smith v. Doe, 538 U.S. 84, 105-06 (2003); Hatton
The SOCB does

Offenders classified as VSP

Finally, plaintiff “asks this Court to carve out an

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exception from current case law for instances where agencies act

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outside a proper delegation of judicial authority.”

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to Defs.’ Mot. for Summ. J. at 6.)

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a new exception, as such an exception already exists in the case

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law.

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judge will not be deprived of immunity because the action he took

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was in error, was done maliciously, or was in excess of his

(Pl.’s Resp.

There is no need to carve out

See Stump v. Sparkman, 435 U.S. 349, 349-50 (1978) (“A

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authority, but rather he will be subject to liability only when

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he has acted in the ‘clear absence of all jurisdiction.’”

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(quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871))).

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case, however, plaintiff does not claim that defendants’ action

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exceeded their delegation of authority from the legislature.

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the contrary, plaintiff argues that defendants acted pursuant to

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that delegation, and it is the delegation which he contends was

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unconstitutional.

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defendants acted in the clear absence of all jurisdiction.

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In this

To

This is not a case where it can be argued that

Plaintiff’s arguments for overturning existing

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precedent are not compelling.

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precedent established by the Ninth Circuit Court of Appeals and

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the United States Supreme Court.

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are entitled to absolute immunity, the court will grant

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defendants’ motion for summary judgment.

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B.

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This court is bound to follow the

Accordingly, because defendants

Remaining Summary Judgment Arguments
Because the court will grant defendants’ motion for

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summary judgment on absolute immunity grounds, it need not

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address defendants’ other arguments.

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IT IS THEREFORE ORDERED that defendants’ motion for

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summary judgment be, and the same hereby is, GRANTED.

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DATED:

October 28, 2011

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