      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOSEPH ERIC JANASZAK DDS,               )   NO. 67749-7-I
a single person,                        )
                                        )   DIVISION ONE
                       Appellant,       )
                                        )
         v.                             )   ORDER GRANTING MOTION
                                        )   TO PUBLISH OPINION
THE STATE OF WASHINGTON; THE )
WASHINGTON STATE DEPARTMENT )
OF HEALTH, an agent of the State        )
of Washington; MARY SELECKY,            )
Secretary, Department of Health,        )
in her official capacity; THE HEALTH    )
PROFESSIONS QUALITY                     )
ASSURANCE COMMISSION, an                )
agent of the State of Washington and )
the Washington State Department of      )
Health; and the WASHINGTON STATE )
DENTAL QUALITY ASSURANCE                )
COMMISSION, an agent of the State       )
of Washington and the Washington        )
State Department of Health; JOHN        )
DAVIS DDS, member, Washington           )
State Department of Health, Dental      )
Quality Assurance Commission, in        )
his individual and official capacities; )
KIRBY PUTSCHER, Deputy Executive )
Director, Department of Health Dental )
Quality Assurance Commission, in her )
official and individual capacities;     )
LORIN PETERSON DDS, member,             )
Department of Health, Dental Quality    )
Assurance Commission, in his official )
and individual capacities; PRAMOD       )
SINHA DDS, member, Department of )
Health, Dental Quality Assurance        )
Commission, in his official and         )
individual capacities; ROBERT FAINE )
NO. 67749-7-I / 2

DDS, member, Department of Health,
                                 )
Dental Quality Assurance Commission,
                                 )
in his official and individual capacities;
                                 )
JANE AND JOHN DOE, members of    )
the Department of Health, Dental )
Quality Assurance Commission, in )
their official and individual capacities;
                                 )
CHYMA MILLER SMITH, Investigator,)
Department of Health, in her official
                                 )
and in her individual capacity,  )
                                 )
                Respondents .    )
________________________________)

       The respondent, State of Washington, having filed a motion to publish

opinion, and the appellant, Joseph Janaszak, having filed an answer to the

motion, and a majority of the hearing panel having reconsidered its prior

determination and finding that the opinion will be of precedential value; now,

therefore it is hereby:

       ORDERED that the unpublished opinion filed January 7, 2013, shall be

published and printed in the Washington Appellate Reports.

       Done this _____ day of _________________, 2013.

                                                   FOR THE COURT:




                                                             Judge




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                             -2-
NO. 67749-7-I / 3


JOSEPH ERIC JANASZAK DDS,                    )   NO. 67749-7-I
a single person,                             )
                                             )   DIVISION ONE
                     Appellant,              )
                                             )
       v.                                    )
                                             )   UNPUBLISHED OPINION
THE STATE OF WASHINGTON; THE                 )
WASHINGTON STATE DEPARTMENT                  )
OF HEALTH, an agent of the State             )
of Washington; MARY SELECKY,                 )   FILED: January 7, 2013
Secretary, Department of Health,             )
in her official capacity; THE HEALTH         )
PROFESSIONS QUALITY                          )
ASSURANCE COMMISSION, an                     )
agent of the State of Washington and         )
the Washington State Department of           )
Health; and the WASHINGTON STATE             )
DENTAL QUALITY ASSURANCE                     )
COMMISSION, an agent of the State            )
of Washington and the Washington             )
State Department of Health; JOHN             )
DAVIS DDS, member, Washington                )
State Department of Health, Dental           )
Quality Assurance Commission, in             )
his individual and official capacities;      )
KIRBY PUTSCHER, Deputy Executive             )
Director, Department of Health Dental        )
Quality Assurance Commission, in her         )
official and individual capacities;          )
LORIN PETERSON DDS, member,                  )
Department of Health, Dental Quality         )
Assurance Commission, in his official        )
and individual capacities; PRAMOD            )
SINHA DDS, member, Department of             )
Health, Dental Quality Assurance             )
Commission, in his official and              )
individual capacities; ROBERT FAINE          )
DDS, member, Department of Health,           )
Dental Quality Assurance Commission,         )
in his official and individual capacities;   )
JANE AND JOHN DOE, members of                )

                                         -3-
NO. 67749-7-I / 4

the Department of Health, Dental )
Quality Assurance Commission, in )
their official and individual capacities;
                                 )
CHYMA MILLER SMITH, Investigator,)
Department of Health, in her official
                                 )
and in her individual capacity,  )
                                 )
                Respondents .    )
________________________________)

          LEACH, C.J. — Dr. Eric Janaszak appeals the trial court’s summary

dismissal of his lawsuit against the State of Washington, the Washington

Department of Health, and other state officials and employees. His complaint

alleged negligent and intentional misconduct relating to the investigation and

temporary summary restriction of his dental license. Because the respondents

have immunity, either absolute or qualified, against many of Janaszak’s claims

and he cannot establish the necessary elements of his remaining claims, we

affirm.

                                       FACTS

          In early 2006, two female patients filed complaints with the Department of

Health, accusing Dr. Eric Janaszak of professional misconduct. They alleged

that he pursued sexual relationships with them while they were his patients,

initiated sexual encounters with them during scheduled appointments, billed them

for dental services not actually performed during those appointments, and sent

one patient’s account to collections when she refused to pay.




                                            -4-
NO. 67749-7-I / 5


      After   the   Washington     Dental    Quality   Assurance     Commission

(Commission) authorized an investigation, Washington Department of Health

(Department) investigator Chyma Miller-Smith conducted one.        Over the next

eight months, Miller-Smith interviewed the complainants, as well as Dr.

Janaszak, his office manager, his dental assistant, and other potential witnesses.

In September 2006, Miller-Smith submitted a report to the Department. She did

not make any disciplinary recommendation to the Commission and played no

role in the Commission’s disciplinary decision-making process.

      After reviewing Miller-Smith’s report, the Department filed an ex parte

motion with the Commission, seeking an order prohibiting Janaszak from treating

adult female patients pending further disciplinary proceedings. The Commission

instead prohibited Janaszak from treating female patients aged 12 and older. It

published notice of the disciplinary action on the Department’s web site. Soon

afterward, the Commission assigned Miller-Smith to investigate a third complaint

made against Janaszak by a former employee who also alleged sexual

misconduct.   Meanwhile, after being deposed, the original two complainants

stopped cooperating with the disciplinary proceedings.           The Commission

withdrew the summary practice restrictions and charges against Janaszak.

      Janaszak sued the State of Washington, the Department, the Secretary of

Health, the Health Professions Quality Assurance Commission, and the


                                       -5-
NO. 67749-7-I / 6


Commission. He also sued five members of the Commission and Miller-Smith,

each in their personal and professional capacities.1 He asserted federal and

state constitutional claims, a state statutory violation, and multiple common law

claims. The trial court granted the State’s motion for summary judgment and

dismissed all claims. Janaszak appeals.

                             STANDARD OF REVIEW

       This court reviews summary judgment orders de novo, engaging in the

same inquiry as the trial court.2 Summary judgment is proper if, viewing the facts

and reasonable inferences in the light most favorable to the nonmoving party, no

genuine issues of material fact exist and the moving party is entitled to judgment

as a matter of law.3 A genuine issue of material fact exists if reasonable minds

could differ regarding the facts controlling the outcome of the litigation.4

       A defendant moving for summary judgment may meet his burden by

showing an absence of evidence to support the nonmoving party’s case.5 If the

defendant makes this initial showing, the inquiry shifts to the party with the



       1
         Collectively, this opinion refers to respondents as the State. Where an
issue relates only to a single party, it refers to that party by name or title.
       2
         Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22
(2003).
       3
         CR 56(c); Michak, 148 Wn.2d at 794-95.
       4
         Hulbert v. Port of Everett, 159 Wn. App. 389, 398, 245 P.3d 779, review
denied, 171 Wn.2d 1024, 257 P.3d 662 (2011).
       5
         Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 624,
818 P.2d 1056 (1991).
                                           -6-
NO. 67749-7-I / 7


burden of proof at trial, the plaintiff.6 If the plaintiff fails to make a showing

sufficient to establish the existence of an element essential to that party’s case,

the trial court should grant the motion for summary judgment.7

                                    ANALYSIS

         Janaszak asserted claims under 42 U.S.C. § 1983 for alleged violations of

his rights under the First, Fourth, and Fourteenth Amendments to the United

States Constitution. He also asserted claims based upon alleged violations of

article I, sections 3, 5, and 7 of the Washington Constitution and RCW

18.130.080. Finally, he asserted common law claims for defamation/false light,

intentional interference with a business expectancy, negligent investigation,

negligence, outrage, and negligent infliction of emotional distress.           The

respondents claim immunity against many of these claims and the absence of

any evidence to support at least one essential element of each other claim. We

agree.

         This case presents several issues about the State’s immunity from

lawsuits. Immunity is not merely a defense to liability, but “an ‘entitlement not to

stand trial or face the other burdens of litigation.’”8 Because the respondents rely


         6
         Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
         7
         Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992)
(quoting Young, 112 Wn.2d at 225).
       8
         Feis v. King County Sheriff’s Dep’t, 165 Wn. App. 525, 538, 267 P.3d
1022 (2011) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86
L. Ed. 2d 411 (1985)), review denied, 173 Wn.2d 1036, 277 P.3d 669 (2012).
                                       -7-
NO. 67749-7-I / 8


upon both the common law and statutes to support their immunity claims, we

begin with a brief overview of the guiding laws and principles.

The Scope of Sovereign Immunity in Washington

       “At common law, the State was immune from lawsuit.”9 The Washington

State Constitution requires that the legislature determine when and where the

State may be sued.10 In 1963, our legislature largely waived the State’s immunity

from tort claims. RCW 4.92.090 provides, “The state of Washington, whether

acting in its governmental or proprietary capacity, shall be liable for damages

arising out of its tortious conduct to the same extent as if it were a private person

or corporation.”    RCW 4.96.010 makes similar provisions for suit against

municipalities and other subdivisions of the state.11

       While the courts construe this legislative waiver of sovereign immunity

broadly,12 common law immunities, both absolute and qualified, still exist.

Absolute immunity protects an entity completely against suit, while qualified


       9
         Linville v. State, 137 Wn. App. 201, 208, 151 P.3d 1073 (2007).
       10
           W ASH. CONST. art. II, § 26 (“The legislature shall direct by law, in what
manner, and in what courts, suits may be brought against the state.”).
       11
           The legislature has created numerous exceptions providing statutory
immunity for a variety of government actors and actions. See, e.g., RCW
10.99.070 (immunizing peace officers for arrests or other actions arising from
domestic violence incidents); RCW 71.05.120 (exempting officials from liability in
decisions relating to the treatment and care of mentally ill patients); RCW
86.12.037 (providing immunity for city and county officials working to improve or
control flood prevention measures).
       12
           Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246,
252, 407 P.2d 440 (1965).
                                          -8-
NO. 67749-7-I / 9


immunity can be lost if it is abused.13 Courts generally confine absolute privilege

to those circumstances where public service and the administration of justice

require complete immunity.14

       Courts look to the function being performed, instead of the person who

performed it, to determine if immunity applies.15      The application of judicial

immunity illustrates this approach.      At common law, judges have absolute

immunity for acts performed within their judicial capacity.16 This immunity does

not exist for the benefit of the judge; rather, it protects the administration of

justice by ensuring that judges can decide cases without fear of personal

lawsuits.17   Thus, the immunity only applies when a judge acts in a judicial

capacity with color of jurisdiction.18

Respondents Are Immune from Janaszak’s Claims under the Uniform

Disciplinary Act

       Janaszak contends that the State failed to comply with mandatory

procedures for disciplinary investigations conducted under RCW 18.130.080.

This statute is part of the Uniform Disciplinary Act (UDA), chapter 18.130 RCW,

which provides standardized procedures for the enforcement of laws for licensed

       13
          Bender v. City of Seattle, 99 Wn.2d 582, 600, 664 P.2d 492 (1983); see
also Lallas v. Skagit County, 167 Wn.2d 861, 864-65, 225 P.3d 910 (2009).
       14
          Bender, 99 Wn.2d at 600.
       15
          Lallas, 167 Wn.2d at 865.
       16
          Lallas, 167 Wn.2d at 864.
       17
          Taggart v. State, 118 Wn.2d 195, 203, 822 P.2d 243 (1992).
       18
          Lallas, 167 Wn.2d at 865.
                                        -9-
NO. 67749-7-I / 10


health and health-related professionals.19 The respondents assert statutory and

common law quasi-judicial immunity against this claim.        We agree that the

respondents have statutory immunity.

      The UDA includes a grant of statutory immunity for officials carrying out

their duties under the act.     RCW 18.130.300(1) provides, “The secretary,

members of the boards or commissions, or individuals acting on their behalf are

immune from suit in any action, civil or criminal, based on any disciplinary

proceedings or other official acts performed in the course of their duties.” On its

face, this statute grants absolute immunity for acts performed in the course of a

covered individual’s duties. Additionally, RCW 18.32.0357 addresses the duties

and powers of the Dental Quality Assurance Commission and states that “[t]he

members of the commission are immune from suit in an action, civil or criminal,

based upon its disciplinary proceedings or other official acts performed in good

faith as members of the commission.” This statute grants a qualified immunity.

      Janaszak argues that statutory immunity does not bar his claim because

Miller-Smith acted outside the scope of her official duties and did not follow

Department procedures in conducting her investigation and because the

Commission and its members did not act in good faith. We disagree.




      19
           RCW 18.130.010.
                                       -10-
NO. 67749-7-I / 11


        Janaszak asserts that RCW 18.130.300 does not immunize respondents

because Miller-Smith exceeded the scope of her duties when she investigated

him without the Commission’s prior approval. The record on appeal does not

support this assertion. Miller-Smith received the Commission’s authorization to

investigate the first complaint, and her investigation quickly revealed a second

potential victim.   He argues that Miller-Smith showed bias and bad faith by

speaking with this second patient before the Commission had authorized an

investigation of her complaint.   These two women were involved in intimate

relationships with the same man at the same time, and Miller-Smith was

investigating the propriety of one of those relationships. Thus, Miller-Smith could

interview the second complainant as part of her investigation of the first

complaint.   For the same reasons, she could interview the third complaining

witness as part of her investigation of the first complaint. Her interviews did not

exceed the scope of her duties.

        Janaszak next complains that Miller-Smith colluded with the complainants

to falsely accuse him of misconduct. He points to the fact that Miller-Smith did

not require the complainants to produce their phone records and that she

corresponded with them by e-mail to keep them updated on the status of the

case.    He also complains about the role Miller-Smith played in drafting the

patients’ complaints.    Further, he claims that Miller-Smith forced a third


                                       -11-
NO. 67749-7-I / 12


complainant to file a complaint. Although the record contains one e-mail from

Miller-Smith’s colleague, questioning whether the third woman had agreed to file

her own complaint or simply offered to be a witness in the ongoing investigations,

the record contains no evidence that directly or by reasonable inference supports

Janaszak’s claim.

      While Janaszak may disapprove of how Miller-Smith conducted her

investigation, he presents no genuine issue that her actions exceeded the scope

of her duties as an investigator for the Department of Health. RCW 18.130.300

bars Janaszak’s claims for violation of the UDA.

      RCW     18.32.0357    provides    Commission     members     with   additional

immunity. Janaszak asserts RCW 18.32.0357 does not immunize the

Commission or its members because they did not act in good faith. He contends

that the Commission’s failure to restrict his dental license immediately upon

receiving a complaint provides evidence of its bad faith. Again, we disagree.

      “‘The standard definition of good faith is a state of mind indicating honesty

and lawfulness of purpose.’”20     A plaintiff alleging that a defendant has lost

qualified immunity by acting in bad faith fails to raise a genuine issue of material

fact by showing only that the defendant acted negligently.21 Where reasonable


      20
         Deschamps v. Mason County Sheriff’s Office, 123 Wn. App. 551, 559,
96 P.3d 413 (2004) (quoting Whaley v. State, 90 Wn. App. 658, 669, 956 P.2d
1100 (1998)).
      21
         Deschamps, 123 Wn. App. at 559.
                                   -12-
NO. 67749-7-I / 13


minds could not differ on the issue of good faith, this question of fact may be

resolved on summary judgment.22

       WAC 246-10-301 describes when the Commission may summarily restrict

dental practitioners:

       Summary action may be taken only after a review by the secretary
       or designee of such evidence, including affidavits, if appropriate, to
       establish:
           (a) The existence of an immediate danger to the public health,
       safety, or welfare;
           (b) The department’s ability to address the danger through a
       summary action; and
           (c) The summary action necessary to address the danger.

Here, the Commission waited until it had a complete report before taking action

to limit Janaszak’s license to practice dentistry. Once the fruits of Miller-Smith’s

investigation   provided   the   Department    with   evidence—as     opposed     to

accusations—that Janaszak posed an immediate danger to his patients, it

responded accordingly and, acting through the assistant attorney general, filed

an ex parte motion to restrict his access to female patients.

       To determine the existence of any genuine issue of fact about the

Commission’s immunity, we ask if the record includes any evidence showing the

absence of a state of mind indicating honesty and lawfulness of purpose. It does

not. Janaszak argues that the delay, but not the factual basis for the restriction,


       22
        Marthaller v. King County Hosp. Dist. No. 2, 94 Wn. App. 911, 916, 973
P.2d 1098 (1999) (citing Dutton v. Wash. Physicians Health Program, 87 Wn.
App. 614, 622, 943 P.2d 298 (1997)).
                                     -13-
NO. 67749-7-I / 14


evidences the Commission’s bad faith. A mere delay in taking what Janaszak

concedes by implication was reasonable if done promptly provides no evidence

of dishonesty or unlawfulness of purpose.

       Janaszak also contends that the Commission acted arbitrarily by imposing

a harsher restriction than the attorney general requested because the

Department provided no evidence that Janaszak had sex with any patients under

the age of 18. This is irrelevant. The Commission found that Janaszak had a

pattern of engaging in sexual relationships with female patients and that he

showed poor boundaries with those patients.        Under the circumstances, the

Commission’s restriction of Janaszak from treating any female patients over 12

years of age also provides no evidence of dishonesty or unlawfulness of

purpose.

       Because Miller-Smith acted within the scope of her duties under the UDA,

RCW 18.130.300 protects respondents from Janaszak’s claims based upon

violations of the UDA. Because the Commission’s members acted in good faith

in the conduct of their statutory duties, RCW 18.32.0357 provides them immunity

as well.

       Janaszak argues that even if the individual actors are entitled to immunity,

because neither RCW 18.130.300 nor RCW 18.32.0357 expressly grants

immunity to the State or the Department, both should still be liable. He claims


                                       -14-
NO. 67749-7-I / 15


that our Supreme Court’s decision in Savage v. State23 indicates that a

government official’s personal immunity cannot transfer to the State. Janaszak

reads Savage too broadly. In Savage, the court expressly cautioned against the

application of an immunity decision in one context to another without an analysis

of the policies implicated in each context.24 An analysis of the circumstances in

which the immunities provided by RCW 18.130.300 and RCW 18.32.0357

operate demonstrates that these immunities should extend to the State and the

Department.

      With the UDA, the legislature intended to provide “a uniform disciplinary

act with standardized procedures for the licensure of health care professionals

and the enforcement of laws the purpose of which is to assure the public of the

adequacy of professional competence and conduct in the healing arts.”25 The

legislature authorized the secretary to employ investigative, administrative, and

clerical staff to enforce the act.26   It granted the Commission enforcement

authority under the UDA for dental licensees.     In this context, the legislature

provided absolute immunity for the secretary of health, members of the

commissions, and individuals acting on their behalf for official acts performed by

any of these individuals in the course of their duties under the act. 27 In the

      23
         127 Wn.2d 434, 899 P.2d 1270 (1995).
      24
         Savage, 127 Wn.2d at 442.
      25
         RCW 18.130.010.
      26
         RCW 18.130.060(1).
      27
         RCW 18.130.300.
                                    -15-
NO. 67749-7-I / 16


performance of these duties, the immunized individuals perform duties analogous

to those of prosecutors and judicial officers. Therefore, those cases addressing

the extension of prosecutorial and judicial immunity provide guidance.

       The common law, as a matter of public policy, accords prosecuting

attorneys absolute immunity for acts done in their official capacity.28          This

immunity is not provided to protect the individual official “but for the protection of

the public and to insure active and independent action of the officers charged

with the prosecution of crime, for the protection of life and property.”29       The

Washington Supreme Court has concluded that this same public policy requires

that this immunity be extended to the State and the entity employing the

prosecutor.30

       Similarly, the common law also accords judges absolute immunity for acts

performed within their judicial capacity.31    As with prosecuting attorneys, this

immunity does not exist for the benefit of the individual judge “but exists to

protect the administration of justice by ensuring that judges can decide cases

without fear of personal lawsuits.”32      The Washington Supreme Court has




       28
         Creelman v. Svenning, 67 Wn.2d 882, 884-85, 410 P.2d 606 (1966).
       29
         Creelman, 67 Wn.2d at 884 (quoting Anderson v. Manley, 181 Wash.
327, 331, 43 P.2d 39 (1935)).
      30
         Creelman, 67 Wn.2d at 885.
      31
         Lallas, 167 Wn.2d at 864.
      32
         Lallas, 167 Wn.2d at 864.
                                    -16-
NO. 67749-7-I / 17


concluded that the absolute immunity of quasi-judicial officers extends to

governmental entities vicariously liable for the individual officers’ acts.33

       The same policy considerations that control the extension of absolute

immunity to governmental entities for the official acts of their prosecutors and

judges are present in this case. Analogous to the immunity afforded prosecutors

and judges, the immunity afforded by RCW 18.130.300 exists not to protect

individuals but to protect the integrity of a uniform disciplinary process for health

care professionals.     It guarantees the independence of these individuals and

allows them to protect the adequacy of professional competence and conduct

without fear of suit.   Therefore, we hold that the absolute immunity of RCW

18.130.300 extends to the State and the Department.

Respondents Are Immune from Suit under 42 U.S.C. § 1983

       Janaszak contends the trial court erred by dismissing his claim for

damages under 42 U.S.C. § 1983. Section 1983 provides the primary means for

private enforcement of civil rights in the United States; Congress enacted this

statute “to provide protection to those persons wronged by the ‘misuse of

power.’”34 Specifically, it provides,

       33
          Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 127, 829 P.2d
746 (1992).
       34
          Owen v. City of Independence, 445 U.S. 622, 650, 100 S. Ct. 1398, 63
L. Ed. 2d 673 (1980) (internal quotation marks omitted (quoting Monroe v. Pape,
365 U.S. 167, 184, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), overruled on other
grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978)).
                                       -17-
NO. 67749-7-I / 18


          Every person who, under color of any statute, ordinance,
          regulation, custom, or usage, of any State or Territory or the District
          of Columbia, subjects, or causes to be subjected, any citizen of the
          United States or other person within the jurisdiction thereof to the
          deprivation of any rights, privileges, or immunities secured by the
          Constitution and laws, shall be liable to the party injured in an
          action at law, suit in equity, or other proper proceeding for redress.

The statute authorizes a civil action for the deprivation of federal constitutional

rights.

          Janaszak alleges that the respondents deprived him of his constitutionally

protected interest in his dental license by conducting a biased investigation and

intentionally skewing the facts presented to the Commission in support of a

request to restrict his license during the pendency of disciplinary proceedings.

The State and the Department contend that they are not subject to § 1983

claims. The individual respondents claim qualified immunity protects them. They

also assert that Janaszak has failed to create a genuine issue of material fact on

necessary elements of his claim. We agree with respondents.

          Because “neither a State nor its officials acting in their official capacities

are ‘persons’ under § 1983,”35 neither the State nor the Department can be held

liable for violations of 42 U.S.C. § 1983.36 This leaves for our consideration

Janaszak’s § 1983 claims against individual respondents.


          35
          Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105
L. Ed. 2d 45 (1989).
       36
          Smith v. State, 135 Wn. App. 259, 270, 144 P.3d 331 (2006) (citing
Hafer v. Melo, 502 U.S. 21, 31, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991)).
                                         -18-
NO. 67749-7-I / 19


           A plaintiff must establish two essential elements in a § 1983 action: (1)

that some person deprived him or her of a federal constitutional or statutory right

and (2) that person must have acted under color of state law. 37 A claim of

qualified immunity to a § 1983 action presents two issues: (1) do the facts make

out a violation of a constitutional right and (2) was the right at issue “clearly

established” at the time of the defendant's alleged misconduct. 38            Qualified

immunity applies unless the defendant’s conduct violated a clearly established

right.39        Both issues present “‘essentially legal question[s]’” for the court to

decide.40 The court may decide them in “the order of decisionmaking that will

best facilitate the fair and efficient disposition of each case.”41

           Janaszak clearly has a protected property interest in his license to practice

dentistry.42 The State must afford him procedural due process in any proceeding

to deprive him of this property interest.43 Due process requires notice and an




           37
           Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 11, 829 P.2d 765 (1992).
           38
           Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815-16, 172 L.
Ed. 2d 565 (2009).
       39
           Pearson, 555 U.S. at 232.
       40
           Jones v. State, 170 Wn.2d 338, 349, 242 P.3d 825 (2010) (alteration in
original) (quoting Mitchell, 472 U.S. at 526).
       41
           Pearson, 555 U.S. at 242.
       42
           Bang D. Nguyen v. Dep’t of Health, Med. Quality Assurance Comm’n,
144 Wn.2d 516, 522, 29 P.3d 689 (2001) (recognizing medical practice licenses
as a legitimate private property interest).
       43
           Bang D. Nguyen, 144 Wn.2d at 522-23.
                                            -19-
NO. 67749-7-I / 20


opportunity to be heard “‘at a meaningful time and in a meaningful manner.’”44 If

justified by an emergency, this notice and hearing may occur after a summary

action.45   But the emergency cannot be fabricated.46        Thus, Janaszak can

establish a § 1983 claim by proving an investigator wrongfully fabricated an

emergency and knew or reasonably should have known that this fabrication

would cause the Commission to find an emergency and summarily restrict

Janaszak’s dental license without a predeprivation hearing.47

       Janaszak contends Miller-Smith caused the deprivation of his procedural

due process rights with a biased investigation and “intentional skewing of the

known facts” that led a summary restriction of his dental license. Specifically, he

complains that Miller-Smith drafted two patient “complaints for them so as to

create an emergency and arbitrarily compiled only a portion of the evidence she

discovered during her investigation” and presented this to the Commission. He

also complains that Miller-Smith provided the Commission with summaries of the

statements she took from Janaszak, his office manager, and his dental assistant

rather than copies of the actual statements, thereby undermining their

importance. He asserts that the later withdrawal of his license restriction and the


       44
          Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006)
(internal quotation marks omitted) (quoting Mathews v. Eldridge, 424 U.S. 319,
333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).
       45
          Jones, 170 Wn.2d at 351.
       46
          Jones, 170 Wn.2d at 351.
       47
          Jones, 170 Wn.2d at 352.
                                       -20-
NO. 67749-7-I / 21


dismissal of charges against him establish that Miller-Smith’s alleged misconduct

caused a wrongful restriction of his dental license. Again, we disagree.

      Janaszak does not identify any misstatement of fact or omission of any

material information in any complaint drafted by Miller-Smith.         He does not

explain how these complaints fabricated an emergency.           Janaszak does not

identify any misstatement of fact or omission in Miller-Smith’s summary of the

statements she took.     Janaszak does not identify any evidence available to

Miller-Smith material to the charges against him that the Department did not

present to the Commission when it sought emergency relief. The Department

based its charges on former patients’ claims that Janaszak had sex with these

individuals while they were his patients. Janaszak admitted having sex with them

but denied the individuals were his patients at the time.        Janaszak has not

identified any evidence about the status of these individuals as patients that the

Department withheld or “skewed.” Janaszak does not identify any witness Miller-

Smith failed to interview in her investigation, any material evidence she failed to

discover, or any evidence she fabricated. In summary, Janaszak failed to create

any material issue of fact about the alleged fabrication of an emergency.

      Additionally, Janaszak’s argument that the subsequent dismissal of

charges   demonstrates     Miller-Smith     improperly   influenced   the   summary

emergency action of the Commission ignores the only evidence in the record


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NO. 67749-7-I / 22


explaining why the Department withdrew the charges. The assistant attorney

general who handled the disciplinary action against Janaszak stated the reason

for the withdrawal in her declaration. After Janaszak took partial depositions of

the complainants, two did not want to schedule completion of their depositions,

follow through with necessary discovery, or attend the disciplinary hearing. The

charges were withdrawn due to this inability to proceed, not because evidence

became known to the Commission after its summary action that caused it to

reach a different conclusion about the merits of the charges.

       Because Janaszak failed to show a violation of a federal constitutional

right, we affirm the trial court’s dismissal of his § 1983 claims against the

individual respondents.

Janaszak’s State Constitutional Claims Fail

       In his complaint, Janaszak asserted claims for violations of article I,

sections 3, 5, and 7 of the Washington Constitution.       On appeal, Janaszak

argues that the trial court improperly dismissed these constitutional claims

because he requested injunctive relief in addition to damages.       Washington

courts have consistently refused to recognize a cause of action in tort for

violations of the state constitution.48    Because Janaszak failed to create any




       48
            Blinka v. Wash. State Bar Ass’n, 109 Wn. App. 575, 591, 36 P.3d 1094
(2001).
                                          -22-
NO. 67749-7-I / 23


genuine issue of material fact about his entitlement to injunctive relief, the trial

court properly dismissed his state constitutional claims.

Janaszak Did Not Present Any Issue of Material Fact Relating to His Tort Claims

       Finally, Janaszak asserted common law claims for defamation, intentional

interference with business expectancy, negligent investigation, common law

negligence, outrage, and negligent infliction of emotional distress. We address

each claim individually.

       1.     Defamation

       Janaszak alleges that a press release posted on the Department’s web

site defamed him with its headline, “Kitsap County dentists [sic] license restricted

after having sex with patients.” Relying upon Liberty Bank of Seattle, Inc. v.

Henderson,49 the Department claims absolute immunity from this claim. Citing

Bender v. Seattle,50 Janaszak contends the immunity is qualified rather than

absolute. We need not decide this issue because even if the privilege is only

qualified, to defeat a motion for summary judgment Janaszak must present

specific facts creating a genuine issue of material fact on the        question of

whether the Department’s statement was made after a fair and impartial

investigation or upon reasonable grounds.51 He has not done so.



       49
          75 Wn. App. 546, 562, 878 P.2d 1259 (1994).
       50
          99 Wn. 2d 582, 600, 664 P.2d 492 (1983).
       51
          Turngren v. King County, 104 Wn.2d 293, 310, 705 P.2d 258 (1985).
                                      -23-
NO. 67749-7-I / 24


      2.     Negligent Investigation and Common Law Negligence

      Janaszak maintains that the respondents can be held liable for negligent

investigation because the UDA creates a statutory duty to investigate complaints

against health care providers. In general, Washington common law does not

recognize a claim for negligent investigation because of the potential chilling

effect such claims would have on investigations.52 We have refused to recognize

a cognizable claim for negligent investigation against law enforcement officials

and other investigators.53

      Janaszak argues that Lesley v. Department of Social & Health Services54

and Corbally v. Kennewick School District55 create such a cause of action. We

disagree. The Lesley court narrowly limited its holding to create a negligent

investigation claim only against the Department of Social and Health Services

(DSHS) caseworkers investigating child abuse pursuant to their specific statutory

duty to investigate.56   In Corbally, as here, the plaintiff attempted to extend


      52
          Ducote v. Dep’t of Soc. & Health Servs., 167 Wn.2d 697, 702, 222 P.3d
785 (2009).
       53
           Dever v. Fowler, 63 Wn. App. 35, 44-45, 816 P.2d 1237 (1991);
Fondren v. Klickitat County, 79 Wn. App. 850, 862-63, 905 P.2d 928 (1995);
Donaldson v. City of Seattle, 65 Wn. App. 661, 671, 831 P.2d 1098 (1992).
       54
          83 Wn. App. 263, 273, 921 P.2d 1066 (1996).
       55
          94 Wn. App. 736, 740, 973 P.2d 1074 (1999).
       56
          RCW 26.44.050 provides that “[u]pon the receipt of a report concerning
the possible occurrence of abuse or neglect, the law enforcement agency or the
department of social and health services must investigate and provide the
protective services section with a report . . . and where necessary to refer such
report to the court.” (Emphasis added.)
                                       -24-
NO. 67749-7-I / 25


Lesley, arguing that a negligent investigation claim should be permitted any time

a statutory duty to investigate exists.57 Janaszak mischaracterizes Corbally’s

holding to say that the court recognized an exception for all cases where an

agency has a statutory duty to investigate. It does not. While Lesley carved out

an exception for DSHS caseworkers, Corbally expressly refused to extend that

exception any further. Our courts have created no further exceptions to the

general rule that we do not recognize claims for negligent investigation. We

decline to do so here.

      Further, even if we were to recognize that the statutory duty to investigate

under RCW 18.130.080 creates a cognizable claim for negligent investigation,

the respondents in this case are still immune from such a suit. Because Miller-

Smith’s investigation and the Commission’s summary suspension occurred

purely within the context of a UDA adjudicative proceeding, the parties are

entitled to statutory immunity under RCW 18.130.300.

      The parties also are entitled to statutory immunity under RCW 18.130.300

against Janaszak’s common law negligence claims.

      3.       Outrage and Negligent Infliction of Emotional Distress

      Janaszak contends that he made a prima facie showing of each element

necessary to his claim for outrage. Again, we disagree. “One who by extreme



      57
           Corbally, 94 Wn. App. at 740.
                                           -25-
NO. 67749-7-I / 26


and outrageous conduct intentionally or recklessly causes severe emotional

distress to another is subject to liability for such emotional distress.”58     To

establish a claim for the tort of outrage, Janaszak must demonstrate that (1) he

suffered severe emotional distress; (2) the emotional distress was inflicted

intentionally or recklessly, and not negligently; (3) the conduct complained of was

outrageous and extreme; and (4) he personally was the object of the outrageous

conduct.59 The defendant’s conduct must be “‘so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.’”60

       Janaszak argues that the Commission acted outrageously by conducting a

biased investigation, selectively gathering evidence to build a case against him,

and branding him a pedophile by limiting his practice to exclude all females “over

12 years old.” While Janaszak may have been distressed by the Commission’s

actions, he presents no evidence that the Commission or the investigator acted

intentionally or recklessly to injure him. As a matter of law, Janaszak failed to

present a prima facie case of outrage.




       58
         Lewis v. Bell, 45 Wn. App. 192, 194, 724 P.2d 425 (1986).
       59
         Chambers-Castanes v. King County, 100 Wn.2d 275, 288, 669 P.2d
451 (1983).
      60
         Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998)
(emphasis omitted) (internal quotation marks omitted) (quoting Grimsby v.
Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)).
                                      -26-
NO. 67749-7-I / 27


      4.     Interference with Business Expectancy

      Finally, Janaszak contends that respondents’ summary restriction of his

dental license constitutes intentional interference with business expectancy.

Janaszak maintained contracts with three dental insurance providers that

together provided approximately 90 percent of Janaszak’s dental claims

payments.   He claims the posting of notice of his license restrictions on the

Department’s web site caused these insurers to refuse to honor their contracts.

He also argues that the restriction improperly interfered with his expectancy to

treat female patients between the ages of 12 and 17.

      To prove tortious interference, the plaintiff must produce evidence

sufficient to support all of the following elements: (1) the existence of a valid

contractual relationship or business expectancy, (2) the defendant’s knowledge

of and intentional interference with that relationship or expectancy, (3) a breach

or termination of that relationship or expectancy induced or caused by the

interference, (4) an improper purpose or the use of improper means by the

defendant that caused the interference, and (5) resultant damage.61 A complete

failure of proof concerning any element necessarily renders all other facts

immaterial.62 Because Janaszak fails to demonstrate that the Commission acted

with an improper purpose or by improper means, his claim fails.

      61
         Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133, 157, 930
P.2d 288 (1997).
      62
         Boyce v. West, 71 Wn. App. 657, 665, 862 P.2d 592 (1993).
                                     -27-
NO. 67749-7-I / 28


                                  CONCLUSION

      Respondents are immune from Janaszak’s claims under the UDA and

federal civil rights law. Janaszak fails to show any issue of material fact relating

to his tort claims or his request for injunctive relief under the Washington

Constitution. We affirm.




WE CONCUR:




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