2012 VT 27



O’Connor v. Donovan (2011-033)
 
2012 VT 27
 
[Filed 13-Apr-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 

2012 VT 27

 

No. 2011-033

 

John (Jack) O’Connor


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden Unit,


 


Civil Division


 


 


Thomas J. Donovan, Jr.


October Term, 2011


 


 


 


 


Helen M. Toor,
  J.


 

Kaveh S. Shahi of Cleary Shahi
& Aicher, P.C., Rutland, for Plaintiff-Appellant.
 
William H. Sorrell, Attorney General, and Mark J. Di
Stefano, Assistant Attorney General,
  Montpelier, for Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J.,
Johnson, Skoglund and Burgess, JJ.,
and Morse, J. (Ret.),
           
         Specially Assigned
 
 
¶ 1.            
BURGESS, J.   The principal question presented by this
appeal is whether, and to what extent, a state’s attorney who serves as a
county’s chief law enforcement officer is entitled to official immunity from
civil liability for allegedly tortious conduct
concerning a local police officer.  The trial court concluded that
liability for the acts complained of was precluded by either qualified or
absolute immunity, or was otherwise barred.  We conclude that the State’s
Attorney was entitled to absolute immunity, and therefore affirm.   
¶ 2.            
This case commenced in February 2010 when plaintiff, then employed as a
police officer with the South Burlington Police Department, filed a complaint
against defendant, the Chittenden County State’s Attorney, stating claims for
defamation, intentional infliction of emotional distress, and intentional
interference with plaintiff’s employment.  The complaint alleged that
defendant, formerly a private lawyer and a member of what plaintiff
characterized as the Vermont “Drug Bar” representing criminal
defendants, harbored an animus against plaintiff due to his police work. 
Plaintiff claimed that as state’s attorney defendant had “maliciously
pursued a course of action . . . to undermine plaintiff’s work and credibility
in the law enforcement community.”  As alleged in the complaint and in
plaintiff’s later responses to discovery, defendant’s tortious
misconduct included meeting with plaintiff’s supervisors to criticize his job
performance and falsely accuse him of dishonesty; declining to file charges or
seek search warrants based on plaintiff’s affidavits; threatening not to work with
plaintiff and thereby end his career if plaintiff attempted to bypass the
State’s Attorney’s office and obtain warrants directly from the trial court;
criticizing plaintiff’s work when he was being considered by the State Police
to serve on its Drug Task Force; impugning plaintiff’s honesty to other
prosecutors; encouraging the filing of a civil-rights lawsuit against plaintiff
and testifying falsely in that action; and “leaking” harmful information about
plaintiff to criminal defense attorneys.  
¶ 3.            
Defendant answered the complaint, raising the affirmative defense of
official immunity.  Following a status conference, the trial court issued
a scheduling order limiting discovery to the immunity issue conditioned on
defendant’s prompt filing of a motion for summary judgment.  Several
months later, defendant filed a motion for summary judgment, together with a
detailed statement of undisputed facts and supporting documents. Plaintiff
opposed the motion and filed a separate statement of undisputed facts.
¶ 4.            
 The trial court issued a written ruling in December 2010. 
Initially, the court noted that plaintiff’s statement of undisputed facts
failed to contain “specific citations to the record,” with the result that many
of the facts set forth by defendant were “deemed to be admitted.” 
V.R.C.P. 56(c)(2).  The court then considered
each of the specific acts complained of, concluding that they were all barred
by either absolute or qualified immunity, privileged, or insufficient to state
a claim.[1] 
Accordingly, the trial court entered judgment in favor of defendant.  This
appeal followed.
¶ 5.            
Plaintiff contends the trial court erred in concluding that defendant
was entitled to qualified or absolute immunity for the bulk of the acts
alleged.  While not required to cross- appeal from the judgment in his
favor, defendant also contends the court erred.  See Staruski
v. Cont’l Tel. Co., 154 Vt. 568, 571 n.3, 581
A.2d 266, 267 n.3 (1990) (party content with final order need not file
cross-appeal to preserve claim for review because it “had nothing in the first
instance to appeal”).  Defendant claims that the court erroneously rejected
his argument that he was entitled to absolute immunity as the highest law
enforcement officer in the county.
¶ 6.            
An assessment of the claims requires close scrutiny of the decisional
law governing official immunity.  Our analytic starting point is Libercent v. Aldrich, 149 Vt. 76, 539 A.2d
981 (1987), where we expressly recognized “two degrees of official immunity,”
explaining: “Absolute immunity is generally afforded to judges . . .
legislators, and the highest executive officers, where the acts complained of
are performed within their respective authorities.  Only qualified
immunity is extended to lower level officers, employees, and agents.”  Id.
at 81, 539 A.2d at 984.  The latter form of
immunity is qualified in the sense that it requires several elements, including
a showing that the government officials were “1) acting during the course of
their employment and . . . within the scope of their authority; 2) acting in
good faith; and 3) performing discretionary, as opposed to ministerial
acts.”  Id. (quotation omitted).[2]  
¶ 7.            
The rationale for separate standards applicable to executive officials
was cogently summarized by Justice Harlan some years earlier, as follows: 
 
To be sure, the occasions upon which the acts of the head of an executive
department will be protected by the privilege are doubtless far broader than in
the case of an office with less sweeping functions.  But that is because
the higher the post, the broader the range of responsibilities and duties, and
the wider the scope of discretion, it entails.  It is not the title of the
office but the duties with which the particular officer sought to be made to
respond in damages is entrusted . . . which must provide the guide in delineating
the scope of the rule which clothes the official acts of the executive officer
with immunity.  
 
Barr v. Matteo,
360 U.S. 564, 573-74 (1959); see also Scheuer
v. Rhodes, 416 U.S. 232, 246-47 (1974) (recognizing that “higher officials
of the executive branch” may require greater protection “since the range of
decisions and choices—whether the formulation of policy, of legislation, of
budgets, or of day-to-day decisions—is virtually infinite” and therefore the
range of protected discretion “must be comparably broad”), overruled on
other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Spalding
v. Vilas, 161 U.S. 483, 498 (1896) (observing that the same considerations
of public policy that immunize judges from civil liability apply to “heads of
Executive Departments when engaged in the discharge of duties imposed upon them
by law”). 
¶ 8.            
Two years after Libercent, we addressed
the official-immunity doctrine again in Levinsky
v. Diamond, 151 Vt. 178, 559 A.2d 1073 (1989), a case that remains in many
respects the most comprehensive ruling of this Court on the subject.  The
plaintiff, who owned several Vermont nursing homes, claimed that the
defendants—the  Vermont Attorney General, deputy attorney general, two
assistant attorneys general, and the Commissioner of Social Welfare— committed
a series of tortious acts and violated his civil
rights during the course of a Medicaid fraud investigation and
prosecution.  The trial court granted summary judgment for the defendants
on the basis of official immunity, and plaintiff appealed. 
¶ 9.            
In reviewing the ruling, the Levinsky
court separately analyzed each state and federal claim against each
defendant.  Dealing with the state claims first, the Court observed that
the Attorney General and Commissioner, as the “highest executive officers in
their respective governmental units,” were entitled to absolute immunity if the
acts complained of “were performed within the general authority of those
offices.”  151 Vt. at 185, 559 A.2d at 1079. 
The Court looked to the statutory authority of the Attorney General, noting
that it was broadly “concurrent with that of the state’s attorneys” in criminal
matters, and concluded that the acts complained of—the subpoenaing of records,
filing of criminal charges, and procuring of a federal fugitive warrant—were
all within the Attorney General’s broad authority to investigate and prosecute
criminal actions and therefore absolutely immune from civil suit.  Id.
at 186-87, 559 A.2d at 1079.  As to the calling
of press conferences and the statements made therein, the Court concluded
that—while not explicitly authorized by statute—they related to the
prosecutions in question and therefore fell within the “outer perimeter of the
prosecutor’s authority and discretion.”  Id. at
187, 559 A.2d at 1080 (quotation omitted).  Finally, as to the
committee testimony, the Court concluded that “it was undoubtedly within the
attorney general’s authority to testify . . . as to a matter closely connected
to the funding of a new branch of his office, i.e., the proposed Medicaid Fraud
Unit,” and thus absolutely immune.  Id.  The Court reached a
similar conclusion with respect to the state law claims against the
Commissioner, finding that all of the acts complained of were within the scope
of his general authority as the highest executive officer for his Department
and therefore absolutely immune from civil suit.  Id. at 188, 559 A.2d at 1081.    
¶ 10.         Turning
to the state claims against the deputy and assistant attorneys general, which
largely tracked those against their superior, the Court found that all of the
acts complained of were within the scope of their authority.  All were
performed in good faith, i.e., they did not violate clearly established rights
of which a reasonable person would have known, and all were
discretionary.  Id. at 189-92, 559 A.2d at
1081-83.  Accordingly, the Court concluded that the elements for
qualified immunity were satisfied.      
¶ 11.         The
Court next addressed the plaintiff’s federal claims, observing that “[a] different
analysis altogether must be used in reviewing whether the various
defendants are shielded from plaintiff’s charges of civil rights violations
under 42 U.S.C. § 1983, since our state immunity doctrine as set forth in Libercent differs from that employed in examining
federal constitutional claims.”  Id. at 192, 559 A.2d 1083
(emphasis added).  In this regard, the Court noted that absolute immunity
in § 1983 actions “is not available to all ‘high officials,’ as it is under
Vermont common law.”  Id. at 193, 559 A.2d at
1083.  Instead, the federal courts have developed a “functional
analysis” derived from common law principles of legislative and judicial
immunity in existence when the Civil Rights Act was enacted in 1871.  Id.
at 193, 559 A.2d at 1084 (citing Imbler, 424
U.S. at 422-23, 430); see Kalina v.
Fletcher, 522 U.S. 118, 123, 124 n.11 (1997) (explaining that Congress
intended Civil Rights Act of 1871 “to be construed in light of the common-law
[immunity] principles that were well settled at the time of its enactment,”
principally “the firmly established common-law rules providing absolute
immunity for judges and jurors”); Buckley v. Fitzsimmons, 509 U.S. 259,
269 (1993) (explaining that, “[i]n determining
whether particular actions of government officials fit within a common- law
tradition of absolute immunity, or only the more general standard of qualified
immunity, we have applied a functional approach which looks to the nature of
the function performed, not the identity of the actor who performed it”
(citation and quotations omitted)).  Under this approach, prosecutors are
protected by absolute immunity for quasi-judicial acts, which the Supreme Court
has defined as those “intimately associated with the judicial phase of the
criminal process,” Imbler, 424 U.S. at 430;
this is to be distinguished from those functions that “cast him in the role of
an administrator or investigative officer rather than that of an advocate” for
which only qualified immunity is warranted.  Id.
at 430-31. 
¶ 12.         Applying
the federal standard, Levinsky concluded that
the prosecutor defendants were all protected by absolute immunity for their
actions “in filing the charges” as well as for the allegedly unlawful
subpoenaing of records, which “involved an activity legally sanctioned as part
of the investigative process, a process necessary to the effective operation of
the prosecutors’ office.”  151 Vt. at 193-94, 559 A.2d
at 1083-84.  The press conference and the committee appearances
were not so “intimately associated” with the litigation process as to warrant
absolute immunity, but the Court nevertheless concluded that they met the test
for qualified immunity.  Id. at 194, 559 A.2d at
1084. 
¶ 13.         As
for the Commissioner, Levinsky noted that he
was “neither a judge, legislator nor prosecutor”
entitled to absolute immunity under federal law.  Id.
 Instead, under a line of U.S. Supreme Court decisions dealing with the
liability of executive officers for civil rights and constitutional violations,
Levinsky concluded that he was “entitled only
to qualified immunity,” a standard nevertheless satisfied on the record
evidence.  Id.; see Harlow v. Fitzgerald, 457 U.S. 800, 807
(1982) (observing that “[f]or executive officials in general . . . qualified
immunity represents the norm” in § 1983 actions); Butz
v. Economou, 438 U.S. 478, 508 (1978) (explaining
that “a qualified immunity from damages liability should be the general rule
for executive officials charged with constitutional violations”); Scheuer, 416 U.S. at 247-48 (holding that governor
and aides sued under Civil Rights Act could receive adequate protection from
liability through qualified immunity).      
¶ 14.         The
principles articulated in Libercent and Levinsky have since been applied many times in many
different settings.  Before turning to their progeny, however, it is
useful to pause briefly to consider their antecedents. Libercent
relied principally on a then-recent Michigan Supreme Court decision, Ross v.
Consumers Power Co., 363 N.W.2d 641, 667 (Mich. 1984), which explained—in
the context of multiple state tort claims against a variety of state
officials—that “[a]bsolute immunity from tort
liability is granted to judges, legislators, and the highest executive
officials of all levels of government even for malicious acts, as long as they
are acting within their respective judicial, legislative, or executive
authority.”  Michigan subsequently codified the Ross standard, see
Mich. Comp. Laws Ann. § 691.1407(5), and Michigan courts have since accorded
the absolute immunity for “high executive officers” to both the state attorney
general and the various county prosecutors.  See Am. Transmissions,
Inc. v. Attorney Gen., 560 N.W.2d 50, 54 (Mich. 1997) (holding that
Michigan Attorney General was absolutely immune from defamation action arising
from “sting operation” to investigate auto repair shops where his allegedly
defamatory statements in television interview related to investigation and
therefore fell within the scope of his general authority); Bischoff v.
Calhoun Cnty. Prosecutor, 434 N.W.2d 249, 251
(Mich. Ct. App. 1989) (reasoning that county prosecutors, as “the chief law
enforcement officer of the county,” are “accorded absolute immunity so long as
they are acting within the scope of their executive authority”).   
¶ 15.         Levinsky relied not only on Libercent
and Ross, but delved deeper, citing earlier Vermont decisions
recognizing common law judicial immunity, Banister v. Wakeman,
64 Vt. 203, 207, 23 A. 585, 586 (1891), and prosecutorial immunity, Polidor v. Mahady,
130 Vt. 173, 175, 287 A.2d 841, 843 (1972).  The Polidor
court relied in turn on Nadeau v. Marchessault,
112 Vt. 309, 310, 24 A.2d 352, 353 (1942), a tort action by an indigent
plaintiff against the “overseer of the poor” for the City of St. Albans for
negligently failing to provide food, shelter, and other assistance.  Nadeau
held that the overseer’s duty was “not ministerial but judicial in nature”
because it involved “an exercise of judgment and discretion,” and concluded
that he was therefore absolutely immune from liability for “acts within the
limits of his authority.”  Id. at 311, 24 A.2d at
354.  Relying on this characterization of discretionary acts as
“judicial,” Polidor later held that the
issuance of criminal process by a state’s attorney “involves the exercise of
that judgment and discretion . . . characterized as judicial” in Nadeau,
and that he was absolutely immune from civil suit.  130 Vt. at 175, 287 A.2d at 843.    
                 
¶ 16.         From
this extended history two points emerge.  First, like other courts, our
early official-immunity decisions in Vermont tended to rely on the longstanding
doctrine of judicial-immunity.  Although nothing in Nadeau or Polidor suggests an intent
to apply a strict functional analysis on the later federal model, echoes of the
doctrine are apparent in the characterization of discretionary-based decisions
as “judicial” in nature.  Nevertheless, we went to considerable
lengths in Levinsky to distinguish Vermont
common-law immunity applicable to state law claims from the federal immunity
doctrine applicable to § 1983 claims.  The former, as noted, provides
absolute immunity for “high executive” officials such as the attorney general
and agency heads for acts committed within the scope of their authority and
only qualified immunity for lower level officials; the latter employs a purely
functional analysis largely divorced from the status of the official in
question.
¶ 17.         This
understanding becomes relevant in analyzing the official-immunity cases that
followed Levinsky, particularly the decision
in Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990).  The plaintiff
there had sued the Rutland County State’s Attorney for failing to dismiss a DUI
charge pursuant to a plea agreement, although the opinion does not identify the
plaintiff’s specific claims.  The trial court granted summary judgment in
favor of the state’s attorney, and we affirmed, holding that “acts related to
the dismissal or processing of an information, as in the instant case, are
within the prosecutorial function and therefore absolutely immune from civil
suit.”  Id. at  281, 583 A.2d at
83.  In a footnote, the Court observed: “Polidor
and Imbler make it clear that when prosecutors
perform quasi-judicial functions, they have the same immunity as judges. 
Therefore, to the extent that Levinsky v.
Diamond in its analysis of official immunity,
considers prosecutors acting in their quasi-judicial role as executive
rather than judicial officers, it is overruled.”  Id. at 280, n.*, 583 A.2d at 83 n.* (citation omitted).
¶ 18.         The
meaning of the Muzzy footnote is not entirely
clear.  As noted, Imbler was a federal §
1983 action, and nothing in Polidor
suggests that it was specifically adopting or applying the federal standard to
state-law claims against state’s attorneys.  Moreover, as noted, Levinsky carefully parsed the state and federal
immunity standards, expressly grounding the Attorney General’s state-law
immunity on his role as the “highest executive officer” in his agency, for
which he was absolutely immune from civil liability for all of the acts within
his general authority, including “the general supervision of criminal
prosecutions.” 151 Vt. at 186, 559 A.2d at 1079 (quoting 3 V.S.A. §152). 
It is unlikely, therefore, that Muzzy’s
intent was to overrule—in a brief footnote—Levinsky’s
specific and carefully constructed holding as to the Attorney General.  It
is more likely that, in purporting to overrule Levinsky
“to the extent . . . that [it] considers prosecutors acting in their
quasi-judicial role as executive rather than judicial officers,” 155 Vt. at 280
n.*, 583 A.2d at 83 n.*, Muzzy was referring only to states’ attorneys.[3]
¶ 19.         The
difficulty with this interpretation, assuming it to be correct, is two-fold. 
First, there were no state’s attorney defendants in Levinsky,
so the footnote is essentially dictum in the sense that it overrules nothing
that was actually at issue there.  Second, to the extent that the role of
the state’s attorney was considered in Levinsky,
it was as a close analog to the Attorney General.  Levinsky noted that the Attorney General’s statutory
authority over criminal prosecutions was “concurrent with that of the state’s
attorneys” and that the two offices shared “at least equal authority to
initiate criminal prosecutions” in their respective spheres.  Levinsky,
151 Vt. at 186, 559 A.2d at 1079 (quotation omitted).  Like the
Attorney General, the state’s attorney is an elected position that represents
the state’s authority in matters of criminal law enforcement.  The state’s
attorney is empowered to prosecute all offenses “committed within his or her
county” and, like the Attorney General, is authorized to employ, direct, and if
necessary remove “at pleasure” as many deputies “as necessary for the
proper and efficient performance of his or her office” as well as to hire,
direct, and remove “at will” an investigator to perform “tasks related to the
state’s attorneys office.”  24
V.S.A. §§ 361(a), 363, 364(a). 
          
¶ 20.         Acknowledging
the considerable powers of local prosecutors, other states in similar circumstances
have accorded them absolute immunity from state-law claims for all actions
within the scope of their authority.  In Foster v. Pearcy,
387 N.E.2d 446 (Ind. 1979), for example, the Indiana Supreme Court rejected the
plaintiff’s attempt to distinguish the State Attorney General from local
district attorneys for immunity purposes, explaining: “We do not accept the
distinction.  Both the Attorney General of Indiana and the local prosecuting
attorneys in this State exercise certain sovereign powers.  It would be
anomalous indeed to hold that the attorney general enjoys an absolute
privilege, while the local prosecuting attorneys have only a conditional
privilege for the same conduct.”  Id. at 449. 
The Indiana court thus held that a  district attorney’s absolute
immunity was not “limited to . . . cases where the prosecutor is acting only as
the State’s advocate,” as under Imbler, but
extended more broadly to statements made to the press regarding pending cases
and the hiring and supervision of deputies.  Id.
at 448.  Other states are in accord.  See, e.g., Bischoff,
434 N.W.2d at 251 (holding that Michigan county prosecutor was covered by rule
affording absolute immunity to “highest . . . executive officials” acting
within the scope of their authority); Pickering v. Sacavage,
642 A.2d 555, 558-59 (Pa. Commw. Ct. 1994) (noting
that the “position of district attorney is an elected office with considerable
and important policy-making functions” and therefor defendant district
attorney was entitled to absolute immunity afforded “high public officials” for
allegedly defamatory statements at press conference on matters relating to
criminal investigation).
¶ 21.         In
light of the considerable statutory and constitutional powers accorded
Vermont’s state’s attorneys, we find the reasoning of these decisions not only
persuasive, but compelling.  Thus, we discern no sound basis to deny
state’s attorneys the same immunity for “high executive officials” that their
State counterpart, the Attorney General, enjoys for conduct within the general
authority of the office.  Levinsky, 151
Vt. at 185, 559 A.2d at 1079.  To the extent that
Muzzy suggests otherwise, it is disapproved.[4]  
¶ 22.         Our
holding has no effect of course on the immunity standard governing federal
claims.  Here, however, we are concerned solely with several state claims,
specifically defamation, intentional interference with employment, and
intentional infliction of emotional distress.  Therefore, we must determine
whether the acts complained of fall within the general scope of defendant’s
authority as Chittenden County State’s Attorney, thereby entitling him to
absolute immunity from suit.    
¶ 23.          We
conclude that plaintiff’s claims are barred under this standard.  As the
trial court concluded, it was well within defendant’s authority as state’s
attorney to decline to file criminal charges or search-warrant applications
based on his dissatisfaction with plaintiff’s affidavits.  See Levinsky, 151 Vt. at 186-87, 559 A.2d at 1079
(holding that prosecutorial decisions to file criminal charges, seek fugitive
warrant, and subpoena records in connection with investigation were “within
[his] general scope of authority” and “shielded absolutely from any civil liability”);
see also Burns v. Reed, 500 U.S. 478, 493 (1991) (holding under federal
standard that prosecutor’s actions in applying for search warrant were central
to prosecutor’s role and absolutely immune from civil liability).  Indeed,
it is well settled under both state and federal immunity standards that a
prosecutor’s decision not to prosecute is entitled to the same absolute
immunity from civil suit as the decision to file charges.  See Harrington
v. Almy, 977 F.2d 37, 40 (1st Cir. 1993) (“[T]he
interest that prosecutorial immunity is designed to protect—independence in the
charging decision—is implicated whether the decision is to initiate a
prosecution or decline to do so.”).  
¶ 24.         In Roe
v. City and County of San Francisco, 109 F.3d 578 (9th Cir. 1997), for
example, a state police officer sued the district attorney for damages and
injunctive relief after he was reassigned and his duties were restricted based
on the district attorney’s refusal to file any cases referred by the officer
without corroborating evidence. The court held that the district attorney was
absolutely immune from suit for the decision not to prosecute for the
same policy reasons that the protected the decision to charge a defendant, and
further observed that this conclusion did not change even where the decision
involved a “whole line of cases” based on the prosecutor’s judgment concerning
the veracity of a police witness.  Id. at 583. 
As the court explained, “[j]ust as a prosecutor’s
professional evaluation of the evidence assembled by the police is entitled to
absolute immunity, a prosecutor’s professional
evaluation of a witness is entitled to absolute immunity even if that judgment
is harsh, unfair, or clouded by personal animus.”  Id. at 584; see
also Botello v. Gammick,
413 F.3d 971, 977 (9th Cir. 2005) (holding that prosecutors’ alleged attempt to
have police officer fired through “their decision not to prosecute [his]
cases and their communication of that decision . . . is entitled to absolute
immunity”); Harrington, 977 F.2d at 40 (holding that prosecutor’s
“refusal to prosecute cases brought by Officer Harrington” was “squarely”
within the scope of absolute prosecutorial immunity under federal standard); Beck
v. Phillips, 685 N.W.2d 637, 644 (Iowa 2004) (holding that county
prosecutor sued by police officer for defamation and interference with
employment contract was “entitled to absolute immunity for the decision not
to prosecute the class of cases in which [the officer] would appear as a
witness”).  
¶ 25.         It
was equally within defendant’s general authority as the chief county law
enforcement officer to review plaintiff’s job performance; discuss it with
other prosecutors in the office, plaintiff’s supervisors, and the State Police;
and take such measures as defendant deemed fit—including declining to work with
plaintiff in the future—in the event that plaintiff attempted to circumvent or
failed to follow standards and procedures. Supervising the investigative
activities of police officers that result in the referral of cases for
prosecution and reviewing those matters with other law enforcement personnel
must, as a practical matter, fall within the general oversight authority of the
state’s attorney as the chief law enforcement officer in the county.  See, e.g., Hyatt v. Cnty.
of Passaic, 340 F. App’x 833, 838 (3d Cir. 2009)
(holding that county prosecutors were absolutely immune from suit for decisions
relating to training of police officers); Porter v. State, 432 S.E.2d
629, 632 (Ga. Ct. App. 1993) (noting that district attorney as “chief law
enforcement officer of the county” was responsible “to ensure that [police]
personnel [were] properly trained and that they follow the law”); Gerofsky v. Passaic Cnty.
Soc. for Prevention of Cruelty to Animals, 870 A.2d 704, 711 (N.J.
Super. Ct. App. Div. 2005) (observing that county prosecutor
is generally considered “the chief law enforcement officer in the county” with
“broad supervisory authority over the operations of the municipal police
departments” (quotation omitted)); see also 24 V.S.A. § 361(a) (setting forth
state’s attorney’s general responsibility for prosecution of all offenses
within his or her county and “all matters and cases cognizable by
the supreme and superior courts in behalf of the state”); In re Wakefield,
107 Vt. 180, 189, 177 A. 319, ___ (1935) (“A state’s attorney in this state is
not merely a prosecuting officer in the county in which he is elected.  He
is also an officer of the state, in the general matter of the enforcement of
the criminal law.”).  As the court in Bischoff observed, a county
prosecutor, “as the chief law enforcement officer in the county,” is “acting
within the scope of his executive authority in acting to ensure that a . . . police
officer in his county was a fit person for that job.”  434
N.W.2d at 253.  
¶ 26.         Disclosing
nonprivileged information concerning plaintiff’s
performance as a law enforcement officer also falls within defendant’s general
authority and responsibility as chief law enforcement officer to ensure the
effective and uniform enforcement of the law.  See Levinsky,
151 Vt. at 187, 559 A.2d at 1079-80 (holding that
public statements at press conference relating to matters within scope of
Attorney General’s authority were absolutely immune from suit).  And
testifying under subpoena in his capacity as state’s attorney was also plainly
within the scope of defendant’s authority, and therefore absolutely immune from
suit.  In addition, such testimony was absolutely protected by the
so-called testimonial privilege.  See Restatement (Second) Torts, § 588
(1977) (“A witness is absolutely privileged to publish defamatory matter . . .
. as a part of a judicial proceeding in which he is testifying. . . .”); see
also Rioux v. Barry, 927 A.2d 304, 308,
312 (Conn. 2007) (applying general rule that “absolute [testimonial] immunity
bars defamation claims that arise from statements made in the course of
judicial or quasi-judicial hearings” to bar claim of intentional interference
with contractual relations based on statements made in judicial or
quasi-judicial proceeding). 
¶ 27.         Plaintiff’s
assertion on appeal that patently false and defamatory statements simply cannot
enjoy official immunity misapprehends the fundamental balance that underlies
the doctrine.  As Judge Learned Hand explained: “In this
instance it has been thought in the end better to leave unredressed
the wrongs done by dishonest officers than to subject those who try to do their
duty to the constant dread of retaliation.”  Gregoire
v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949); see also Levinsky,
151 Vt. at 185-87, 559 A.2d at 1079-80 (explaining that Attorney General’s
statements allegedly defaming plaintiff by falsely accusing him of converting
Medicaid payments to his own use were within scope of his general authority and
therefore absolutely immune from civil liability).  That defendant was
allegedly motivated by ill will or a malicious design to interfere with
plaintiff’s livelihood does not diminish the absolute immunity afforded conduct
otherwise within the general scope of defendant’s authority.  See Levinsky, 151 Vt. at 187 n.3, 559
A.2d at 1080 n.3 (observing that, where actions are protected by absolute
immunity, a high executive’s alleged malicious motive is “irrelevant”). 
                 
¶ 28.         Nor,
finally, does the record support plaintiff’s claim that the trial court abused
its discretion in staying further discovery before ruling on the summary
judgment motion.  The claim is based on the court’s scheduling order,
which cited defendant’s intention to assert the defense of official immunity,
authorized defendant to conduct limited discovery related to that issue, and—in
the event that defendant moved for summary judgment based on immunity—provided
that plaintiff could request permission “to take specific discovery in order to
oppose the defendant’s motion” pursuant to Vermont Rule of Civil Procedure
56(f).  Defendant thereafter filed a motion for summary judgment asserting
official immunity supported, in part, by his affidavit and a number of
exhibits.  In his opposition to the motion, plaintiff asserted that it was
necessary to depose, among others, defendant, a deputy state’s attorney, and
the attorney who had initiated the earlier-mentioned civil rights lawsuits
against plaintiff.  The trial court denied this request for additional
discovery, noting that plaintiff had filed no affidavit explaining why the
depositions were necessary to adduce facts essential to his case, as required by
Rule 56(f), and that, in any event, the further discovery appeared to be
directed at issues related to defendant’s motives and intent that were
irrelevant to the claim of immunity.  
¶ 29.         The
trial court’s ruling was sound.  The official immunity doctrine seeks to
spare governmental officials from unnecessary burdens associated with defending
lawsuits arising from conduct within the scope of their authority.  See Sabia, 165 Vt. at 521, 687 A.2d at 473 (observing
that official immunity serves to alleviate public officials from “the
distraction and expense of defending themselves in the courtroom” for conduct
within the scope of their authority).  We have thus “encouraged early
resolution of immunity claims” when possible, Cook v. Nelson, 167 Vt. 505,
513, 712 A.2d 382, 387 (1998), and have recognized that it is often appropriate
to resolve the issue pretrial as a matter of law.  Sabia,
165 Vt. at 521, 687 A.2d at 473.  The scheduling
order in this case furthered that purpose by requiring a specific showing that
additional discovery was necessary to rebut the claim of official
immunity.  See Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (observing that early resolution of official
immunity claims serves “to protect public officials from the broad-ranging
discovery that can be peculiarly disruptive of effective government” (quotation
omitted)).  The record supports the trial court’s finding that plaintiff
failed to make the requisite showing.  Accordingly, we find no basis to
disturb the judgment. 
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
The court divided plaintiff’s factual allegations into two categories,
undisputed and disputed, assumed the latter to be true, and dealt with them as
though defendant’s motion for summary judgment was a motion to dismiss.  
   


[2] 
As we later explained, when protected by absolute immunity an official’s
malicious motive or intent is “irrelevant, since a good-faith test is imposed
only when qualified immunity is available.”  Levinsky
v. Diamond, 151 Vt. 178, 193-94, 559 A.2d 1073, 1084 (1989); see also Muzzy
v. State, 155 Vt. 279, 281, 583 A.2d 82, 83 (1990) (observing that when
prosecutor  performs acts within scope of
absolute immunity “his motive for acting is not subject to inquiry in a private
suit even if there is a claim of willful or malicious conduct” (quotation and
citation omitted)).  The level of immunity to be applied thus has
significant procedural implications.  As the U.S.
Supreme Court has observed: “An absolute immunity defeats a suit at the outset,
so long as the official’s actions were within the scope of the immunity. 
The fate of an official with qualified immunity depends upon the circumstances
and motivations of his actions, as established by the evidence at trial.” 
Imbler v. Pachtman,
424 U.S. 409, 419 n.13 (1976).  Although the high
court has since held that an official’s “good faith” is to be determined by an
objective test predicated on whether the conduct “violate[s] clearly
established statutory or constitutional rights of which a reasonable person
would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982),
accord Sabia v. Neville, 165 Vt. 515,
521, 687 A.2d 469, 473 (1996), the elements of qualified immunity may nevertheless
present fact questions that preclude dismissal or summary judgment.  See, e.g., LaShay v. Dep’t of
Soc. & Rehab. Servs., 160 Vt.
60, 64-67, 625 A.2d 224, 227-28 (1993) (affirming summary judgment for
Commissioner on basis of absolute immunity as Department’s “highest executive
officer” but reversing as to social worker and remanding for factual
determination as to whether worker violated clearly established right and
whether duty was discretionary or ministerial).        



[3] 
This was how the trial court here interpreted Muzzy, observing that
although “[i]t is not entirely clear what the Court
meant by that brief comment . . . it was apparently intended to reject the
distinction between state and federal claims” as to county prosecutors, so that
any  claim to absolute immunity depended on the
nature of the function performed rather than whether it was generally “within
the scope of their authority” as a high executive official.  


[4] 
Subsequent decisions that may have interpreted Muzzy to confine a
state’s attorney’s absolute immunity in state tort actions to those acts
closely associated with the litigation process, such as Huminski
v. Lavoie, 173 Vt. 517, 520-21, 787 A.2d 489, 493 (2001) (mem.), are thus to that extent overruled.   



