dissenting.
The Court’s opinion in Overman v. Overman, 102 Idaho 235, 629 P.2d 127 (1981), declared an “indication” — for whatever an “indication” may be worth — “that the district court did not abuse its discretion in awarding, on the basis of the respondent father’s motion and the affidavit submitted in support thereof, temporary custody of the parties’ five minor children to the respondent father ....” 102 Idaho at 239, 629 P.2d at 131 (emphasis added). Nothing more need be said as to the validity of the Court’s opinion which has not already been said in my dissenting opinion in that case— other than that time has reinforced my views.1 Today, our concern is with that affidavit,2 its signator, Mr. Neher, and any of Mr. Neher’s supervisors who authorized or encouraged his improper disclosures.
At the outset, I believe it is important to point out a few things regarding Neher and his affidavit. First, if a general practitioner having only peripheral contacts with the Department of Health & Welfare knows, certainly Neher knew he was stepping over the line in supplying Overman’s attorney with supposed facts and Neher’s conclusions which were to be used against Mrs. Over-man in Mr. Overman’s at that time unfiled motion for modification of the child custody provisions of the decree of divorce. Second, if Neher thought the children were in apparent danger, to the extent that he be*802lieved state intervention was necessary, then he could have proceeded under I.C. § 16-1612, which allows the state to step in and remove the children immediately.3 These procedures, however, do not allow the state or its employees to take over or interfere with, and thereby short-circuit, the judicial process, as Neher did in this case. Third, as to Neher’s wholly conclusory statement that he thought Mrs. Overman might take the children and exit Idaho— which, together with ex parte oral argument of Mr. Overman’s attorney on presenting Overman’s petition, most obviously excited the trial court’s attention and precipitated its immediate and drastic action 4 — the answer to that is simply that at least so far as I know, where the state has a legitimate concern for the welfare of children, it can and freely does exercise that jurisdiction in each and every of the fifty states which comprise the union. See I.C. § 5-1003. Thus, as the trial court, Judge McClintick, noted, Neher violated the confidentiality of his position by disclosing private information in the affidavit he prepared for Mr. Overman. In addition, Neher was guilty of taking sides in a civil controversy the settlement of which properly belonged to the courts, and he thereby thwarted Mrs. Overman’s rights of due process.
I.
With all due respect to the author of the Court’s opinion, to my mind, the district court’s memorandum decision is a better portrayal of the facts in this case. The district court candidly stated that “Mike Neher disclosed private information from the files of the Idaho Department of Health and Welfare relating to plaintiff’s social activities and neglect of her children.” The court also noted that the plaintiff was suing “each of the defendants individually and in his official capacity.” The district court then dismissed the suit against the defendants in their official capacity for failure to file a timely notice of claim. The suit against the defendants in their individual capacities, however, was dismissed on the ground that “the filing of an affidavit in a state court tort action ... is absolutely privileged even though defamatory or in violation of a right to privacy,” the court citing Richeson v. Kessler, 73 Idaho 548, 255 P.2d 707 (1953). Plaintiff’s third cause of action claiming damages under § 1983 was dismissed by the district court in a later order, the court finding that “an absolute privilege has been extended to witnesses in 1983 actions in Federal Courts in this Circuit.”
The Court in this case upholds the trial court’s dismissal of the action against the defendants in their individual capacities, not upon the grounds set forth below, but upon the alternative basis “that I.C. § 6-905, requiring a timely notice of claim, applies not only to suits against the state, but also to suits against state employees for their acts or omissions in the course and scope of their employment.” I agree that when a state employee is sued solely for acts done within the course and scope of his employment, i.e., within his official capacity, the statute requires that the employee be given the same notice as the state. But, what if the employee’s conduct is not within the “course and scope” of his employment? Assuming that the allegations in the plaintiff’s complaint were insufficient to state a cause of action against the defendants in their individual capacities, I believe it would be better to do as the court did in *803Roberts v. Hollandsworth, 582 F.2d 496 (9th Cir.1978) — remand the case with leave to the plaintiff to amend her claim if she desires — than to deny plaintiff her day in court because of a complaint not drafted with the specificity required in common law pleadings.5
The plaintiff’s complaint clearly states that “[e]ach defendant is being sued ... individually and in their official capacity.” Although the complaint later states that the affidavit “was published by Defendant Mike Neher as an employee of the other defendants while acting within the scope of his employment,” which would bring into play “official” capacity, the complaint nevertheless adequately sets forth a cause of action against the defendants in their “individual” capacities. Clearly this was the belief of the trial court. If it had viewed the complaint as alleging a cause of action against the defendants based solely upon official acts within the course and scope of their employment, the trial court readily could have disposed of the first two causes of action on the grounds of non-compliance with the notice requirements. The statutes specifically require a notice of claim to be filed if a claim against a state employee is based upon an act “within the course and scope of his employment.” See I.C. §§ 6-905 and -908. The fact that the trial court felt compelled to address the more difficult issue of whether the filing of the affidavit was privileged, suggests that the trial court was of the opinion, as am I, that the plaintiff’s complaint adequately sets forth a cause of action against the defendants in their individual capacities— for actions outside the course and scope of their employment, and which by reason thereof are not done in any official capacity.
The Court cites to the rebuttable presumption contained in I.C. § 6-903(e) and states that the allegations of the complaint support the presumption “that the action of Neher was in the scope and course of his employment.” A majority of the Court apparently forgets that this case involves a motion to dismiss under I.R.C.P. 12(b) and that at this stage our concern is with the sufficiency of the allegations in the complaint. In my opinion, the presumption should only come into play at trial, where evidence developed — perhaps by both sides — would rebut it.
The record clearly demonstrates that Neher acted outside the course and scope of his employment. The trial court specifically stated that Neher has “disclosed private information from the files of the Idaho Department of Health and Welfare.” That which I wrote in Overman v. Overman is applicable — there was improper concert of action between Mr. Overman and Mr. Neher. I have no knowledge of any rules and regulations which would authorize Mr. Neher to collaborate with Mr. Overman to the *804extent of providing information which was not Neher’s for the giving. Absent any authority granted to him, he obviously was acting beyond the scope and authority of his employment. Although Neher was perfectly willing to lend color of authority to his actions, it cannot be said that he acted in anything but an individual capacity— notwithstanding the fact that he purported to act from his position of employment with the State of Idaho.
My greatest concern in this case is with the Court’s unqualified statement that “since I.C. § 6-908 requires the filing of a notice of claim, as a prerequisite to a suit against a governmental employee and no such claim was filed, we affirm the trial court’s dismissal of the cause of action against defendants-respondents in their individual capacities.” (Emphasis added.) Because the notice of claim requirement is only applicable when the acts of the employee are within the course and scope of his employment, it is clear that the majority, perhaps through tunnel vision, sees no distinction between a suit against an individual for acts done in his official capacity and one for acts which transcend or do not fall within his official duty — and hence cannot become the acts of his state employer, remaining relegated to acts of an individual. That there has always been such a distinction has heretofore been my observation of the law. Thus, in my opinion, the Court today greatly errs in holding that a state employee sued in an individual capacity is protected by the same notice requirement which cloaks him in immunity for official acts.
The United States Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), stated:
“Ex Parte Young [209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1980)] teaches that when a state officer acts under a state law in a manner violative of the Federal Constitution, he
‘comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.’ Id., at 159-160. (Emphasis supplied.)” 416 U.S. at 238, 94 S.Ct. at 1687.
Clearly the Young Court’s observations demonstrate the proper distinction between liability in an “official capacity” and liability in an “individual capacity.” A person cannot be acting within the scope of employment and yet act in an individual capacity, even though the majority approach equates the two. Acts performed within the scope of employment are performed in an official capacity. Obviously, it is always the “individual” (a person) performing the acts in question, but the “official capacity” and “individual capacity” labels are legally distinct.
The 1976 revision of I.C. § 6-903(a) was not designed to, nor did it, incorporate protection from civil claims for state employees acting in their individual capacity as the majority would have one believe. I.C. § 6-903(a) protects “those of its employees acting within the course and scope of their employment or duties .... ” (Emphasis added.) “Employees” is defined in I.C. § 6-902(4). “Definitions — As used in this act: ... 4. ‘Employee’ means an officer, employee, or servant of a governmental entity, including elected or appointed officials, and persons acting on behalf of the governmental entity in any official capacity .... ” (Emphasis added.) The combined code sections indicate that an employee acting within the scope of employment does so in an “official capacity.” It is by no means a major step in reasoning to observe that when the act transcends the scope of employment, the person is then acting in an “individual capacity,” i.e., in his own capacity■
It is because an agent, employee, or servant of the state acts within the scope or course of his employment that he renders the state liable for his conduct under the Tort Claims Act. The Act, however, contemplates that the employee, too, may be *805liable, and that the employee, too, may have assets or insurance. It is axiomatic that an employee who acts on his own behalf and not within the scope and course of his employment will not bind his employer by his conduct, and that is true whether it be a corporate entity or a governmental entity. The tortious acting employee has always been liable for his torts, although frequently he may not have the financial resources necessary to satisfy a judgment against him. Hence, most suits are aimed at the employer where the conduct complained of is possibly within the scope and course of the employment. In bringing suit against Neher, nothing was gained or lost by attempting to bring in the state albeit with allegations which perhaps could not be substantiated. All that was accomplished by the 1976 legislature was to declare the state’s responsibility for tortious acts of its employees and servants, provided such acts were within the scope and course of their employment. It has been my understanding that such was the state of the law prior to the amendment.
The Act was in no way intended to make the state responsible for acts of its employees not within the scope and course of their employment or to provide protection to employees in such instances. By unnecessarily adopting the broad proposition that state employees are protected by the Tort Claims Act, I.C. § 6-901, et seq., when sued in an individual capacity, the majority has undermined the very purpose of the Act. Extending protection to a state employee sued in his or her individual capacity vis-a-vis the timely notice requirements of I.C. § 6-905, a fortiori presumes the state must also stand behind an employee sued in an individual capacity whenever the notice requirement is fulfilled by the plaintiff. In other words, as a result of the Court’s holding announced today, the state may now become the indemnitor and defender of claims against all of its employees sued in an individual capacity as well as in an official capacity — a result clearly not contemplated by the Idaho Tort Claims Act. One would hardly expect state resources to be used in defense of a State employee who furnishes to a person not entitled confidential information from state vaults, which information belongs to the state alone.
In my opinion, the plaintiff’s complaint adequately sets forth a cause of action against the defendants in their individual capacities. I.C. § 6-905 does not require a notice of claim for a suit against state employees for actions not within “the course and scope of their employment.” In addition, for reasons similar to those set forth in my discussion of witness immunity under § 1983, part II, supra, I believe there is no absolute witness immunity under state law which would be applicable under the circumstances of this case. Thus, the plaintiff should be allowed to proceed to trial on her cause of action against the defendants in their individual capacities. On reversal it would be appropriate but not necessary to allow housekeeping amendments to the pleadings.
II.
As the majority correctly notes, absolute witness immunity from civil liability does not extend to 42 U.S.C. § 1983 actions if the purpose of § 1983 would be frustrated by application of the immunity theory and the fundamental policies underlying witness immunity are incapable of overriding the interests of justice in providing a remedy for a “constitutional tort” action. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Charles v. Wade, 665 F.2d 661 (5th Cir.1982); Briscoe v. LaHue, 663 F.2d 713 (7th Cir.1981), cert. granted, 455 U.S. 1016, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982). I am precluded, however, from adhering to the Court’s determination that application of absolute witness immunity is appropriate in this instance. It is my opinion that even a cursory analysis of the substantive policies essential to an application of absolute witness immunity reveals no justification for such a limitation to the availability of a § 1983 action under the facts presented.
The Court inappropriately approves of the district court’s reliance upon Blevins v. *806Ford, 572 F.2d 1336 (9th Cir.1978), as controlling the § 1983 immunity issue presented by this case. A discerning comparison of Blevins with the facts alleged in the complaint, however, discloses substantial differences which I believe demonstrate the severe ramifications of adopting an absolute witness immunity theory.
The Blevins court recognized that absolute immunity, for “those who testify in the course of judicial proceedings,” was based on “reasons of public policy.” Id. at 1338. These “reasons of public policy” were recently outlined by the United States Supreme Court in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Note first the Butz Court’s qualification of the policy reasons supporting the immunity theory as applying to “the various participants in judge-supervised trials.” (Emphasis added.) Similarly, the Blevins holding applied to “those who testify in the course of judicial proceedings.” 572 F.2d at 1338. (Emphasis added.) Both decisions contemplate situations in which witnesses are testifying in trials replete with built-in judicial safeguards (discussed infra) sufficient to control unconstitutional conduct which § 1983 is correspondingly designed to prevent. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Thus, the need for access to a § 1983 action in a judge supervised trial setting is reduced and application of witness immunity may be justified.
The current case presents a situation in which the individual seeking immunity is, at best, on the outermost fringe of a “judge supervised” proceeding. Neher, an employee of the State of Idaho Department of Health and Welfare, signed an affidavit manufactured by Mrs. Overman’s former husband’s attorney. The affidavit formed the basis of the district court’s ex parte order assigning temporary custody of plaintiff-appellant’s children to her former husband. Disdaining scrutiny, the majority categorizes defendant-respondent as a “witness” and thereby affords him the protection provided witnesses by the absolute witness immunity. Whether Mr. Neher can, or should (for purposes of formality), be labeled a “witness” in this context is immaterial since policy considerations at the basis of witness immunity cannot be reconciled with its application in this case. As the United States Supreme Court noted in Butz:
“[T]he safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct.... Witnesses are ... subject to the rigors of cross-examination and the penalty of perjury. Because these features of the judicial process tend to enhance the reliability of information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error.” 438 U.S. at 512, 98 S.Ct. at 2913 (emphasis added).
This “witness” was obviously not subject to the “rigors of cross-examination” at the time he signed his remarkable affidavit, nor when it was submitted to a trial judge who would take precipitate and drastic action thereon — without hearing from the plaintiff or her attorney. Whether the “penalty of perjury” posed any real threat to Mr. Neher signing this particular affidavit drawn by Overman’s attorney as compared to actual testimony given in trial following the swearing of an oath, is questionable. Any opportunity to subsequently cross-examine him, or subject him to the penalty of perjury (assuming that a state employee would be so prosecuted for “doing his duty”) could not dissipate the effect of the violation that had already occurred. Furthermore, the affidavit was laced with mere conclusions — most of which were founded on hearsay information which would have had to have been excluded at trial due to its unreliability. Considering that this unreliable information was used in an ex parte hearing, it is not readily seen how the impartiality of the decision making process was enhanced. It is evident, therefore, that the policies enunciated by the United States Supreme Court countenancing application of absolute witness immunity proscribe its application in this instance.
*807Each of the cases cited by the Court in support of the majority rule favoring absolute immunity for witnesses, Charles v. Wade, 665 F.2d 661 (5th Cir.1982); Briscoe v. LaHue, 663 F.2d 713 (7th Cir.1981), cert. granted, 455 U.S. 1016, 102 S.Ct. 1708, 72 L.Ed.2d 132 (1982); Myers v. Bull, 599 F.2d 863 (8th Cir.1979), cert. denied, 444 U.S. 901, 100 S.Ct. 213, 62 L.Ed.2d 138 (1979); Burke v. Miller, 580 F.2d 108 (4th Cir.1978), cert. denied, 440 U.S. 930, 99 S.Ct. 1268, 59 L.Ed.2d 487 (1979); Bennett v. Passic, 545 F.2d 1260 (10th Cir.1976); Brawer v. Horowitz, 535 F.2d 830 (3d Cir.1976), involved witnesses who had testified at trial, and who were therefore restrained by the safeguards defined in Butz. In the current case, however, the policies in favor of absolute witness immunity are incapable of protecting against the alleged violations, and these violations can only be remedied by a § 1983 action.
It is my best judgment that Mr. Neher’s witness immunity under a § 1983 action is best analyzed, not from his status as a witness alone, but from his position as a public official who abandoned that status to pass out information gained in the scope of his employment with the Department of Health and Welfare and through his involvement with the Overman children.
The United States Supreme Court has provided only a good-faith, qualified immunity to several levels of public officials. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214, reh’g denied, 421 U.S. 921, 95 S.Ct. 1589, 43 L.Ed.2d 790 (1975) (school board members); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (state executive officials); Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) (prison officials); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (police officers).
“The rationale for according these state officials with immunity when they act in good faith and with a reasonable belief that their actions are lawful is to minimize the prospect that the threat of liability will deter such officials from exercising their discretion and performing their official duties ... without totally undermining the purpose of § 1983, which is to provide a remedy to persons deprived of their federal rights by the abuse of official power.” Charles v. Wade, 665 F.2d 661, 668 (1982) (Kravitch, J., dissenting) (citation omitted).
Judge Kravitch also expounded on the difference between public official witnesses and other witnesses in relationship to the absolute witness immunity theory:
“Public officials, ‘who in any event face the possibility of liability for most of their official acts, who may be obligated to testify as an aspect of their official duties, and who are normally represented by government counsel in § 1983 actions,’ ... are likely to be less intimidated than private citizens by the threat of a § 1983 action. Thus, the policy considerations that countenance absolute immunity for lay witnesses at common law do not apply with equal force in the context of a § 1983 action against a police official who testifies within the scope of his duties. Briggs v. Goodwin, 569 F.2d 10, 18 (D.C.Cir.1977), cert. denied, 437 U.S. 904, 98 S.Ct. 3089, 57 L.Ed.2d 1133 (1978); Burke v. Miller, 580 F.2d 108, 112 (4th Cir.1978) (Winter, J., concurring). See Hilliard v. Williams, 516 F.2d 1344, 1349 (6th Cir.1975), vacated on other grounds, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 729 (1976), affirmed after remand, 540 F.2d 220 (6th Cir.1976) (police officer liable under § 1983 for falsely testifying in a criminal trial).” 665 F.2d at 669 (quoting Briscoe v. LaHue, 663 F.2d 713, 719 (1981) (emphasis added).
The reasoning above is as relevant to Health & Welfare workers as it is to police officers.
III.
Plaintiff-appellant has properly placed in issue before the Court whether defendants-respondents were acting within the scope of their employment and whether they have violated 42 U.S.C. § 1983. I intimate no judgment regarding Mrs. Overman’s ability to prove the allegations at trial. She is, however, entitled to further proceedings to *808be heard more fully than allowed at a motion to dismiss.
. Responsive to my dissent in Overman v. Overman, 102 Idaho 235, 629 P.2d 127 (1981), Judge Lodge did have the kindness to send a letter to each member of the Court in which he candidly declared that in addition to the Neher affidavit he felt free also to listen to counsel propounding the motion — counsel being an officer of the Court. He also expressed the thought that other jurisdictions were not quick to respect Idaho prior jurisdiction.
I might add that in my dissent in Overman v. Overman, I discussed the unlikelihood that a trial judge could grant such an ex parte order as was entered here, contemporaneously declaring his lack of bias in doing so, and thereafter continue in the case as the final determiner of the ultimate issue already thus decided ex parte. In my opinion in Koester v. Koester, 99 Idaho 654, 661, 586 P.2d 1370, 1377 (1978), I pointed out a similar problem. There, in making a “final" order of custody following complete submission of the divorce action including custody, the trial judge was admittedly influenced by the earlier award of temporary custody. Finding both parents equally fit, his nod went to the father who had made the early move and obtained temporary custody, the trial judge believing it not in the best interests of the children that they be uprooted. While such is true, as I pointed out, the net result may be less than desireable — turning motions for temporary custody into the main bout, rather than the preliminary event which the practice always contemplated. It would seem beyond dispute that if a trial judge’s final decision on a custody issue may be influenced by the placing of the children in an uncontested preliminary matter, he is equally or more likely to be influenced where prior to his final resolution of a custody issue he has flown into the face of a prior resolution of the custody issue which was final and res judicata other than for appeal or subsequent modification for change of circumstances established at a trial held for that very purpose.
. The entire Neher affidavit is found beginning at 629 P.2d 137, and at 102 Idaho 245.
. Such drastic action is justified “only where the child is endangered in his surroundings and prompt removal is necessary to prevent serious physical or mental injury to the child.” I.C. § 16-1612.
. The argument of Mr. Overman’s attorney must have been extremely persuasive since the conclusory affidavit falls way short of sufficing as a predicate upon which to enter an ex parte order which had the effect of modifying, even if only temporarily, a final decree of divorce. In fact, the affidavit and argument may have sidetracked the trial court, which issued the ex parte order “for the purpose of maintaining the jurisdiction in this court,” even though the court clearly would have retained jurisdiction in the absence of the order. See I.C. § 5-1003. See Bigger v. Biggers, 103 Idaho 550, 650 P.2d 692 (1982).
. Although this was obviously a point which bothered the trial court, In its order dismissing the action the court stated that “there is no amendment of any cause of action of the Complaint which plaintiff could reasonably be expected to make which would save the action, and that it ought to be dismissed with prejudice.” As will be developed more fully in the text, infra, the trial court’s order was based upon two things: (1) its assumption that plaintiffs complaint adequately set forth a cause of' action against the defendants in their official capacities (for acts within the course and scope of their employment) and in their individual capacities; and (2) its holding that the individual defendants were entitled to “the benefits of an absolute witness privilege.” It was because the trial court held that an absolute witness privilege extended to the defendants in their individual capacities that the court found that no amendment would save the plaintiff’s complaint. The majority never reaches the issue of whether such absolute witness immunity exists, because it reads the complaint as stating a cause of action against the defendants only for acts “within the scope and course of their employment,” and dismisses plaintiffs first two causes of action for failure to comply with the notice of claim requirements of I.C. § 6-905. Unless the Court is prepared to hold that there is an absolute witness privilege available to state employees which extends to acts outside the scope and course of their employment, the Court, on its own rationale, should at the least remand with leave to amend since the plaintiff clearly would be able to state a cause of action against at least Mike Neher for actions which were beyond the scope and course of his employment, assuming that the complaint in question did not do so — a doubtful proposition where Judge McClintick considered that it was adequate, as do I.