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Eller v. Idaho State Police

Supreme Court of Idaho

May 24, 2019

BRANDON ELLER, Plaintiff-Respondent,
v.
IDAHO STATE POLICE, an executive agency of the State of Idaho, Defendant-Appellant. BRANDON ELLER, Plaintiff-Appellant,
v.
IDAHO STATE POLICE, an executive agency of the State of Idaho, Defendant-Respondent.

          Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Nancy Baskin, District Judge.

         The judgment of the district court is affirmed in part and vacated in part.

          Brassey & Crawford, PLLC, Boise, for appellant. Andrew C. Brassey argued.

          Strindberg & Scholnick, LLC, Boise, for respondent. Erika Birch argued.

          BEVAN, JUSTICE.

         This appeal arises from a retaliation action under the Idaho Protection of Public Employees Act (the "Whistleblower Act") and a negligent infliction of emotional distress claim against the Idaho State Police. Plaintiff Brandon Eller alleges the Idaho State Police (ISP) retaliated against him in two areas: first, after he testified against another officer in a preliminary hearing, and second, when he voiced objections to a new ISP policy requiring members of the Crash Reconstruction Unit to destroy draft and peer review reports. A jury awarded Eller $30, 528.97 in economic damages under the Whistleblower Act and $1.5 million in non-economic damages for his negligent infliction of emotional distress claim. The district court then entered a memorandum decision and order reducing the award for Eller's negligent infliction of emotional distress claim to $1, 000, 000 because Idaho Code section 6-926 caps the State's liability for actions brought under the Idaho Tort Claims Act (ITCA) at $500, 000 per occurrence. Both Eller and ISP timely appealed on several grounds, and their appeals have been consolidated.

         We hold that the district court incorrectly applied the ITCA to Eller's claim because the Whistleblower Act supplants it. We vacate the district court's rulings that the Whistleblower Act bars non-economic damage awards and that the ITCA caps Eller's damages, and remand for a partial new trial regarding non-economic damages solely under the Whistleblower Act.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On October 18, 2011, there was a fatal traffic accident in Payette County involving Payette County Deputy Scott Sloan and civilian Barry Johnson. Sloan was responding to a 911 call, traveling significantly above the speed limit on a two-lane rural highway, when he came upon Johnson's Jeep. Deputy Sloan started to pass Johnson on the left when Johnson turned into his driveway, causing Sloan to crash into the Jeep. Johnson died as a result of the crash. Because the crash involved an on-duty law enforcement officer and a fatality, the ISP conducted the investigation. District 3 Trooper Justin Klitch was the primary investigating officer, while Corporal Quinn Carmack was the assigned crash reconstructionist from District 3's Crash Reconstruction Unit (CRU). CRU member Brandon Eller, who was the lead reconstructionist in District 3, was assigned to help Klitch interview Sloan.

         Following his investigation, Carmack's initial report revealed that Sloan drove his patrol vehicle 115 miles per hour and made an unsafe pass around Johnson's Jeep, causing the crash. While multiple tests showed Johnson had a blood alcohol concentration (BAC) at the time of the crash ranging between .053 and .1271 after five blood draws, neither Carmack nor Eller believed Johnson's BAC to be a causational factor. After Carmack's reconstruction report was peer reviewed by two other reconstructionists, the CRU statewide coordinator for all six ISP districts, Specialist Fred Rice, approved the report for filing.

         Just before the final report approval, District 3's top commanders Captain Steve Richardson and Lieutenant Sheldon Kelley intervened. According to the ISP, Lieutenant Kelley supervised the investigation and believed Carmack's initial report was deficient, even to the point of excluding exculpatory material: Johnson's blood alcohol level and the fact he was legally intoxicated at the time of the crash. On December 21, 2011, Kelley held a meeting with Captain Richardson, Rice, and Carmack to discuss the report. Carmack described the meeting as "heated," with Kelley yelling at him, and the supervisors wanting several changes made to the report. Eller testified that the commanding officers also called him in for a "heated" meeting to discuss Carmack's report: "I got the impression they were trying to side me up against Carmack and support what they wanted, as opposed to him doing an unbiased reconstruction of the crash."

         Following the meetings, Carmack changed the reconstruction report to read "conclusions" instead of "causational factors," and edited facts within the conclusions section. He also added the information that "Johnson had a femoral artery blood alcohol level of 0.08," explaining that was the "most reliable" blood draw. That said, Carmack felt the edits were factually misleading.

         The following year, Gem County brought a felony vehicular manslaughter charge against Sloan. At the preliminary hearing on April 13, 2012, Carmack and Eller were called as prosecution witnesses. Both Carmack and Eller testified that they believed that Johnson's blood alcohol level was not a causational factor of the crash, and Carmack also testified that his superior officers instructed him to remove the statements suggesting Sloan drove recklessly. Eller testified that Sloan drove his vehicle in an unsafe or reckless manner.

         Eller later testified that after the preliminary hearing a commanding officer accused Eller of lying on the stand. Rice testified that another commanding officer said Carmack and Eller would "be lucky to have their jobs patrolling nights and weekends." In May 2012-one month after the April 2012 preliminary hearing-Eller received a downgrade in his performance review and was described as causing "dissention" [sic] within the District 3 patrol ranks. This mark affected his eligibility for pay raises. That same month, Kelley was promoted to Headquarters Captain and assigned to be the manager of ISP's state-wide Crash Reconstruction Program.

         A year later, in July 2013, ISP issued a directive to destroy all peer review reports within the CRU, which had previously been retained for, among other things, the reports' potential significance as exculpatory evidence. Eller approached both his lieutenant and Kelley to express concerns with the new directive-especially legal concerns that the ISP was destroying evidence in criminal and civil cases-but Eller was told by the commanding officers to follow the directive anyway. More specifically, Eller believed the policy could create a Brady issue where potentially exculpatory evidence would be destroyed rather than turned over to the defense. Eller refused to follow the new policy and continued to maintain peer review records.

         Over the next several months, several changes within the ISP impacted Eller's job duties and benefits directly or through the CRU structure. In October 2013, the ISP restructured CRU which placed Eller back on patrol duties, including night and weekend shifts he had not previously had to work, while requiring that he still perform his reconstructionist duties. These changes damaged Eller's work and home life, including his personal health. The ISP also removed Eller from his position as Interim Statewide CRU Coordinator-dissolving that position to split the responsibilities between two other individuals-and then rejected his choice point[1]application, which would have given him a pay raise as a reconstructionist instructor. In fact, the ISP prohibited Eller from teaching altogether. On May 27, 2014, Eller resigned as an ISP crash reconstructionist.

         Eller sued ISP on January 6, 2015, under the Idaho Protection of Public Employees Act, also known as the "Whistleblower Act." He alleged unlawful retaliation by the ISP because he testified against a fellow police officer at a preliminary hearing and for objecting to the ISP's policy requiring CRU members to destroy all but the final drafts of their reports.

         A jury trial started on August 14, 2017. At trial, Eller testified on his physical manifestations of emotional distress, including weight loss, sickness, headaches, skin issues, trouble sleeping, and loss of appetite. In addition, both Carmack and Rice testified on their respective Office of Professional Standards (OPS) investigations, administrative leave, and return to the ISP. Rice also testified on his retirement from the ISP. The ISP objected to several questions presented on these matters on relevance grounds.

         On August 30, 2017, the jury returned a verdict in Eller's favor on both of his claims, and awarded him $30, 528.97 in economic damages under the Whistleblower Act and $1.5 million in non-economic damages for his negligent infliction of emotional distress claim. While Eller sought emotional distress damages under both his Whistleblower Act and negligent infliction of emotional distress claims, the district court ruled, as a matter of law, that the jury was precluded from awarding emotional distress damages under the Whistleblower Act. The special verdict form thus only permitted the jury to award non-economic damages under Eller's negligent infliction of emotional distress claim.

         Following the trial's conclusion, the ISP moved to reduce Eller's non-economic damages, and any costs and attorney fees, to a total sum of $500, 000 based on Idaho Code section 6-926's damages cap. The ISP argued that the damage cap applied because (1) there was no applicable, valid collectible liability insurance coverage in excess of that limit to satisfy plaintiff's state tort claim, and (2) the adverse actions against Eller arose out of a single occurrence. The district court then entered a memorandum decision and order reducing the award for Eller's negligent infliction of emotional distress claim to $1, 000, 000 under Idaho Code section 6-926, finding Eller had suffered at least two occurrences under the ITCA. Three months later, the district court entered an amended judgment to include its decision awarding attorney's fees and costs to Eller.

         Both Eller and the ISP timely appealed on various grounds, and their appeals have been consolidated before this Court.

         II. STANDARD OF REVIEW

         "This Court exercises free review over statutory interpretation because it presents a question of law." State v. Amstad, 164 Idaho 403, ___, 431 P.3d 238, 240 (2018). Likewise, this Court freely reviews conclusions of law, drawing its own conclusions from the facts in the record. Johnson v. Crossett, 163 Idaho 200, 205, 408 P.3d 1272, 1277 (2018). Additional standards of review will be addressed as they become relevant.

         III. ANALYSIS

         A. The Whistleblower Act provides Eller with a non-economic damages remedy independent of the ITCA's damages cap.

         After the jury returned a verdict awarding Eller $30, 528.97 in economic damages under the Whistleblower Act and $1.5 million in non-economic damages for his negligent infliction of emotional distress claim, the district court reduced the emotional distress award to $1, 000, 000. The court explained that Idaho Code section 6-926 caps the State's liability for actions brought under the ITCA at $500, 000 per occurrence. The court found that Eller had shown at least two occurrences, concluding that an "occurrence" referred to each adverse action against Eller. On appeal, the parties disputed the meaning of "occurrence" under the ITCA. That said, we hold that the ITCA does not apply to Eller's damages under the Whistleblower Act because (1) the Whistleblower Act supplants the ITCA, (2) the Whistleblower Act permits an award of non-economic damages, and (3) Wright v. Ada County, 160 Idaho 491, 501-02, 376 P.3d 58, 68-69 (2016) incorrectly permitted a separate damages action within a case brought under the Whistleblower Act.

         1. The Whistleblower Act supplants the ITCA.

         Statutory interpretation requires this Court to first consider the plain language of the statute, with the literal words as the best guide to determining legislative intent. Marquez v. Pierce Painting, Inc., 164 Idaho 59,, 423 P.3d 1011, 1015-16 (2018). Idaho law provides: "Where a statute is clear and unambiguous, the expressed intent of the legislature shall be given effect without engaging in statutory construction." Id. (citation and corrections omitted). In addition, where two statutes conflict, courts should apply the more recent and more specifically applicable statute. See Valiant Idaho, LLC v. JV L.L.C., 164 Idaho 280,, 429 P.3d 168, 177 (2018) (quoting George W. Watkins Family v. Messenger, 118 Idaho 537, 797 P.2d 1385 (1990)); Johnson v. Boundary Sch. Dist. No. 101, 138 Idaho 331, 335, 63 P.3d 457, 461 (2003).

         In this case, two competing acts potentially cover the conduct at issue: the ITCA and the Whistleblower Act. While both statutes allow for a cause of action by government employees suffering damages, they also contain conflicting provisions. As a result, we are called upon to determine whether one or both of the two competing acts applies to whistleblower claims.

         The ITCA became Idaho law in 1971 "to provide "much needed relief to those suffering injury from the negligence of government employees." Rees v. State, Dep't of Health & Welfare, 143 Idaho 10, 19, 137 P.3d 397, 406 (2006) (citation omitted). Courts construe the ITCA liberally with liability as the rule and immunity as the exception. Id.; Grabicki v. City of Lewiston, 154 Idaho 686, 691, 302 P.3d 26, 31 (2013). Under the ITCA a plaintiff can bring an action within two years after the date the claim arose, or reasonably should have been discovered, and damages are generally capped at $500, 000 per occurrence or accident. I.C. §§ 6-911 (limitation of actions), 6-926 (limits of liability). In contrast, the Idaho Legislature passed the Whistleblower Act over twenty years later in 1994 "to protect the integrity of government by providing a legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of a law, rule or regulation." I.C. § 6-2101. The time limit for bringing a whistleblower claim is much shorter than provided in the ITCA. A plaintiff must bring such an action within 180 days of the alleged Whistleblower Act violation "for appropriate injunctive relief or actual damages, or both." I.C. § 6-2105(2).

         In addition to these discernible differences, the Whistleblower Act never mentions a damages amount or cap, nor does it reference the ITCA. Rather than protect individuals as victims of general governmental torts and damages-as under the ITCA-the Whistleblower Act provides an unambiguous "legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of a law, rule or regulation." I.C. § 6-2101. In fact, as noted, the Whistleblower Act's only limitation is time based-a plaintiff has 180 days to file his action, a far shorter time than if he brought a negligent infliction of emotional distress claim under the ITCA. I.C. § 6-2105(2) ("a civil action for appropriate injunctive relief or actual damages, or both, [must be filed] within one hundred eighty (180) days after the occurrence of the alleged violation of this chapter.")

         "A basic tenet of statutory construction is that the more specific statute or section addressing the issue controls over the statute that is more general." In re City of Shelley, 151 Idaho 289, 294, 255 P.3d 1175, 1180 (2011); see also Valiant Idaho, LLC v. JV L.L.C., 164 Idaho 280, 429 P.3d 168, 177 (2018). Thus, "where two statutes appear to apply to the same case or subject matter, the specific statute will control over the more general statute." State v. Barnes, 133 Idaho 378, 382, 987 P.2d 290, 294 (1999). We thus conclude that the more-specific Whistleblower Act applies over the more-general ITCA when both statutes may cover an action for damages. As a result, the Whistleblower Act's provisions govern the causes of action that may be brought by a whistleblower such as Eller.

         This Court generally addressed the dichotomy between the Whistleblower Act and a common law breach of contract claim in Van v. Portneuf Medical Center, 147 Idaho 552, 561, 212 P.3d 982, 991 (2009). In Van, we held two things that are relevant to our holding today: first, that the plaintiff's common law claim for wrongful discharge was supplanted by the Whistleblower Act; and second, the ITCA and its notice provisions did not apply to whistleblower claims. See id. at 558, 212 P.3d at 988. As we noted there, the Legislature did not link the Whistleblower Act to the ITCA, and thus the Whistleblower Act supplants the ITCA:

[T]he statutory nature of the [whistleblower] cause of action does not automatically render it subject to the ITCA. In fact, we hold the opposite to be true: the whistleblower claim is purely a statutory remedy against governmental employers and there is no reason to assume that the Legislature intended those alleging claims under the statute to have to comply ...

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