Alaska Employment Law

The 9th Circuit has now issued its en banc opinion in the social worker immunity case, previously discussed here. It reversed earlier 9th Circuit precedent and held that social workers are not immune under § 1983 for investigatory conduct and other discretionary decisions about whether to pursue dependency proceedings.  This is the issue that was before the Alaska Supreme Court in State v. Doherty, 167 P.3d 64 (Alaska 2007), in which the Court remanded the matter to Judge Mark Wood for application of the federal immunity standards.

 The 9th Circuit held:

social workers have absolute immunity when they make “discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents.” Id. at 898. But they are not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury, because such actions aren’t similar to discretionary decisions about whether to prosecute. A prosecutor doesn’t have absolute immunity if he fabricates evidence during a preliminary investigation, before he could properly claim to be acting as an advocate, see Buckley v. Fitzsimmons, 509 U.S. 259, 275 (1993), or makes false statements in a sworn affidavit in support of an application for an arrest warrant, see Kalina v. Fletcher, 522 U.S. 118, 129-30 (1997). Furthermore, as prosecutors and others investigating criminal matters have no absolute immunity for their investigatory conduct, a fortiori, social workers conducting investigations have no such immunity. See id. at 126.

Beltran v. Santa Clara County, 2008 WL _______ (9th Cir. Jan. 24, 2008)