John O’Connor v. Thomas J. Donovan, Jr., No. S0173-10 CnC (Toor, J., Dec. 13, 2010)

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                                               VERMONT SUPERIOR COURT
                                                  CHITTENDEN UNIT
                                                   CIVIL DIVISION

                                                                         │
JOHN O'CONNOR                                                            │
 Plaintiff                                                               │
                                                                         │
    v.                                                                   │      Docket No. S0173-10 CnC
                                                                         │
THOMAS J. DONOVAN, JR.                                                   │
 Defendant                                                               │
                                                                         │


         RULING ON MOTION FOR SUMMARY JUDGMENT and MOTION FOR
                      JUDGMENT ON THE PLEADINGS

           This is a case brought by a police officer against the local prosecutor, alleging that

Defendant has intentionally interfered with Plaintiff’s employment, defamed him, and

intentionally inflicted emotional distress upon him. Defendant Donovan moves for

summary judgment on immunity and privilege grounds, and for judgment on the

pleadings as to the last count of the complaint. Plaintiff O’Connor is represented by

Kaveh Shahi, Esq.; Defendant is represented by Mark DiStefano, Esq., of the Attorney

General’s office.1

                                                        The Allegations

           The complaint is very brief, but generally alleges that Donovan, the State’s

Attorney for Chittenden County, has purposely tried to ruin O’Connor’s reputation as a

police officer.            O’Connor alleges that this is because Donovan used to represent


1
  The court notes that in various places within his responsive memorandum of law O’Connor suggests that
he needs discovery to flesh out some of the facts. However, he has failed to properly request time for
discovery pursuant to Rule 56(f), which requires an “affidavit of the party opposing the motion [explaining
why] the party cannot . . . present by affidavit facts essential to justify the party’s opposition.” Thus, the
court does not consider the request. In any case, the further discovery appears to be directed at issues
related to Donovan’s motives and intent, which the court concludes below are irrelevant as a matter of law.
defendants in drug cases, and O’Connor has been working hard to prosecute such

defendants.

       Specifically, the complaint alleges that Donovan has met with O’Connor’s

supervisors at the South Burlington Police Department, to whom Donovan criticized

O’Connor’s work and suggested he was dishonest. Complaint, ¶ 7. It also alleges that

Donovan “used foul and unprofessional language” to O’Connor and “threatened to run

him out of Chittenden County and end his career as a police officer.” Id., ¶ 8. The

complaint goes on to say that Donovan has pursued “a personal vendetta against plaintiff,

and in the process has abused the powers of his public office…” Id., ¶ 8. An additional

allegation in the claim for defamation is that Donovan has “spread[] false statements,

implications, and/or impression (sic) that plaintiff is a bad police officer engaged in

dishonest conduct.” Id. ¶ 12. The above facts are the entire basis set forth in the

complaint for the three causes of action asserted.

                                    The Relevant Facts

       Donovan seeks summary judgment on all claims in this case on the basis of

qualified and absolute immunity, as well as testimonial privilege. His statement of

material facts in support of the motion adds much greater detail to the history of events

between the parties. The motion is based upon those additional facts. However, the

complaint itself sets forth no such facts, and does not describe or even mention some of

the events addressed in Defendant’s statement.

       Plaintiff’s response to the motion denies many of the facts, but does not do so in

the manner required by Rule 56: with citations to the record. V.R.C.P. 56(c). For

example, he responds to many of the facts by saying “Please see summary of facts in the




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Opposition Memorandum and the attachments.” This is neither what is meant by the rule,

nor of much use to the court. The proper response is a specific reference to something

admissible in evidence, such as a page and line of a deposition or an affidavit, preferably

with a direct quote from that document so the court need not hunt for the reference.

Clayton v. Unsworth, 2010 VT 84, ¶ 28 (party responding to motion must “identify

specific facts, with citations to the record” and “the relevant provisions of [the]

documents must be referred to”)(emphasis in original). As Plaintiff has not complied with

the rule, the court deems many of the facts set forth by Defendant to be true.2 See

V.R.C.P. 56(c).

        Those facts generally set forth that the actions of Donovan at issue are as follows:

contacting O’Connor’s superior to complain about his conduct; declining to file

prosecutions or seek search warrants based on some of O’Connor’s affidavits of probable

cause; telling O’Connor that if he violated county policy on seeking search warrants only

with the approval of a prosecutor, Donovan’s office would not work with him again3;

supporting a deputy prosecutor’s request not to work with O’Connor; testifying about

some of the above issues (pursuant to subpoena) at a civil trial in a private lawsuit against

O’Connor; a slow response from staff in Donovan’s office regarding whether they would

decline a forfeiture case so that the federal authorities could proceed; and Donovan’s



2
  In the response to the motion, Plaintiff provides his own version of the facts (many of which are highly
conclusory statements about Donovan’s state of mind). However, he has not amended the complaint to add
such claims, and has not filed a summary judgment motion himself. Thus, the facts he sets forth are mere
allegations, not undisputed for purposes of summary judgment.
3
  O’Connor also alleges in his response that Donovan “flew into a rage and screamed obscenities and
threats” in this conversation. Plaintiff’s Separate Statement of Undisputed Facts, ¶ 10. See also Complaint
¶ 8 (alleging that Donovan used “foul and unprofessional language”). True or not, such behavior does not
constitute a tort or a violation of law.



                                                    3
report to one of O’Connor’s colleagues that a Deputy State’s Attorney had complained of

O’Connor being rude to her.

         Donovan also asks the court to rule on a number of other allegations made by

O’Connor in discovery, although Donovan disputes them. It is clear from Plaintiff’s

response that he does in fact make these allegations, despite the fact that they are not set

forth in the complaint. As to these, because Defendant has raised them, the court treats

them as allegations and treats the motion as one to dismiss rather than for summary

judgment. In other words, the court will presume them to be true for purposes of the

motion.

         Those allegations are as follows; that Donovan “instigated” two private lawsuits

against O’Connor; that Donovan did not tell the whole story when he testified in the civil

trial; that Donovan talked to the opposing party’s attorney about his testimony before

testifying; that Donovan “leaked” a letter written by his predecessor also criticizing

O’Connor’s work; that Donovan has questioned O’Connor’s honesty to his own staff and

to O’Connor’s supervisors; that attorneys in Donovan’s office have shared information

harmful to O’Connor with defense attorneys; that Donovan “leaked” to a defense attorney

a meritless complaint Donovan had filed with O’Connor’s superiors, as well as materials

regarding the resulting internal police department investigation; and that Donovan said

negative things about O’Connor when contacted by the State Police when they were

considering O’Connor for the Vermont Drug Task Force.4




4
 Defendant lists other allegations which the court finds are duplicative of some of the undisputed facts and
does not list separately here.


                                                     4
                           I. Absolute and Qualified Immunity

       For public policy reasons, government officials are at times protected from suit by

doctrines of immunity: either “absolute immunity” or “qualified immunity.” Donovan

argues that he is entitled to both types of immunity.

       The Vermont Supreme Court held in 1989 that under Vermont law the highest

executive officers of the State, including the Attorney General, had absolute immunity for

“any and all” actions taken “within the individual’s authority.” Levinsky v. Diamond,

151 Vt. 178, 185 (1989). In that case the Court distinguished between the immunity

available for state law claims and the immunity available for federal claims brought

under 42 U.S.C. § 1983. Id. at 192-93. It applied the absolute immunity available to all

executive acts, whatever their nature, to the former; it applied a combination of absolute

and qualified immunity, depending upon the specific acts in question, to the latter.

       However, in 1990 the Court stated in a footnote that it was overruling Levinsky

“to the extent that . . .[it] consider[ed] prosecutors acting in their quasi-judicial role as

executive rather than judicial officers.” Muzzy v. State, 155 Vt. 279, 280 (1990). It is not

entirely clear what the Court meant by that brief comment. As best this court can tell, it

was apparently intended to reject the distinction between state and federal claims, and to

apply the prosecutorial immunity doctrine rather than the “executive officer” doctrine

when the executive in question is a prosecutor. Thus, prosecutors are entitled to either

absolute or qualified immunity based upon the nature of their actions, rather than absolute

immunity for all actions within the scope of their authority.

       Prosecutors are entitled to absolute immunity for actions “associated with the

judicial phase of the criminal process,” so long as they are “within the general authority




                                             5
of the officer.” Muzzy, 155 Vt. at 280. The “quasi-judicial phase” includes “any act

closely associated with litigation or potential litigation, but does not cover administrative

functions.” Id. Decisions to prosecute (or not), to negotiate pleas (or not), and to seek

evidence (or not), are protected by absolute immunity. Id. at 280; Levinsky, 151 Vt. at

193-94; Czechorowski v. State, 2005 VT 40, ¶ 10, 178 Vt. 524.

        Administrative functions of a prosecutor are protected by qualified immunity.

Qualified immunity applies when a public official is acting within the scope of his or her

employment and authority, acting in good faith, and performing discretionary acts.

Sprague v. Nally, 2005 VT 85, ¶ 4, 178 Vt. 222. The idea is to “prevent exposing state

employees to the distraction and expense of defending themselves in the courtroom” if

they are acting within the range of what a reasonable person in their position could do. Id.

“[I]f the official’s conduct does not violate clearly-established [law] of which a

reasonable person would have known, the official is protected by qualified immunity

from tort liability.” Id.

        “Good faith” is used in what can be a confusing manner under this doctrine: it

refers not to the official’s intent or state of mind, but to what a hypothetical “reasonable

person” in the situation might believe to be lawful. “Good faith exists where an official’s

acts did not violate clearly established rights of which the official reasonably should have

known.” Sabia v. Neville, 165 Vt. 515, 521, 687 A.2d 469, 473 (1996). “The viability of

this defense depends on the objective reasonableness of the official’s conduct in relation

to settled, clearly-established law.” Hoffer v. Ancel, 2004 VT 38, ¶ 12, 176 Vt. 630

(internal quotation omitted). The doctrine applies to state tort claims as well as alleged

violations of statutes or constitutional provisions. Sprague, 2005 VT 85, ¶¶ 5 and 13.




                                             6
        The purpose of qualified immunity “is to ensure that public officials will enjoy

broad decision making discretion free from the threat of liability for errors of judgment.”

Czechorowski, 2005 VT 40, ¶ 21. It “gives ample room for mistaken judgments.” Malley

v. Briggs, 475 U.S. 335, 343 (1986).

                                 A. The Undisputed Actions

        Some of the undisputed acts of which O’Connor complains are clearly within the

scope of the State’s Attorney’s quasi-judicial role. Decisions about what cases to

prosecute or what warrants to seek, and deciding whether to initiate or decline forfeiture

proceedings, are precisely the types of actions that the cases make clear are protected by

absolute immunity.

        Other actions that Donovan took are more administrative in nature: reporting

concerns about a police officer’s conduct to his superior, decisions about deputy

prosecutors’ job responsibilities, and requiring a police officer to follow office policies if

he wished the office to work with him. These actions are protected only by qualified

immunity. However, such immunity clearly applies here, as these actions are

discretionary ones that are undoubtedly within the scope of Donovan’s job and O’Connor

has pointed to no “clearly established right” that Donovan has violated. See, Livingston v.

Town of Hartford, 2009 VT 54, ¶ 14, 186 Vt. 547 (affirming summary judgment where

“plaintiff failed to articulate any clearly established right that was violated”).

        Of yet a different nature is the claim relating to Donovan’s testimony at a civil

trial. Donovan’s testimony pursuant to subpoena was done in his role as a witness like

any other citizen served with a subpoena, not in his role as a prosecutor. Thus, neither the

absolute nor the qualified immunity related to his position would attach.




                                               7
          Testimony in court, however, is separately protected by a privilege applicable to

all witnesses in litigation. Restatement (Second) of Torts § 588 (1977)(West, Westlaw

through Aug. 2010). Thus, anything Donovan said or did not say while testifying cannot

be the basis for liability here.

          The court grants summary judgment to Defendant with respect to all of the above

claims.

                                   B. The Disputed Allegations

          As noted above, the court will address the motion regarding the disputed facts as

one to dismiss. In other words, assuming all the alleged facts to be true, would Donovan

be entitled to absolute immunity for those actions? Accord, Burgess v. Salmon, 2008 WL

2793874, * 3, No. 2007-411 (April 2008)(mem.)(“a plaintiff’s claims may appropriately

be dismissed for failure to state a claim because the facts as alleged establish immunity as

a matter of law”).

          The allegation that Donovan instigated two civil lawsuits against O’Connor is one

that does not trigger absolute immunity. Encouraging private litigation against a police

officer is not part of a prosecutor’s job. However, O’Connor points to nothing to suggest

that it is a violation of law or a basis for tort liability. This allegation will be dismissed

for failure to state a claim.

          The next allegation is that Donovan did not tell the whole story when he testified

in the civil trial, and that he talked to the opposing party’s attorney about his testimony

before testifying. As noted above, testifying in a private lawsuit as a witness pursuant to

subpoena is not part of Donovan’s duties as a prosecutor, only his duties as a citizen.

Thus, the immunities applicable to his role as State’s Attorney do not attach. However,




                                               8
the court finds no liability that can attach to a witness who talked to a lawyer for one side

but not the other before testifying, or a witness who talked to the lawyer about earlier

testimony in the case by other witnesses. The privilege applicable to a witness’ testimony

“also protects him while engaged in private conferences with an attorney at law with

reference to proposed litigation.” Restatement, supra, § 588 cmt. b. O’Connor cites no

legal basis for liability for such actions. Thus, although prosecutorial immunity does not

attach to Donovan’s actions as a witness, he is entitled to dismissal of these claims.

        The next allegation is that Donovan “leaked” a letter written to the Chief of Police

by his predecessor criticizing O’Connor’s work. It is not clear what “leaking” the letter

means, and thus the court cannot assess whether the acts in question were in fact part of

Donovan’s job responsibilities. However, there is also no legal claim asserted here that

would create any liability for sharing the letter with others. The allegation fails to state a

claim. The same is true of the separate claim that Donovan “leaked” to a defense attorney

a complaint Donovan had filed with O’Connor’s superiors, as well as materials regarding

the resulting internal investigation resulting therefrom. O’Connor cites no law or

regulation that has been violated. As he cites no legal duty to keep such materials secret,

there is no basis for liability for such disclosure.

        Next O’Connor alleges that Donovan has questioned O’Connor’s honesty to his

own staff and to O’Connor’s supervisors. To the extent that such discussions occurred,

they are discretionary administrative matters within the scope of Donovan’s position.

O’Connor points to no clearly established law that such conduct would violate. If a

State’s Attorney has questions about a police officer’s honesty, discussing those concerns




                                               9
with staff and the officer’s supervisors would be precisely what one would expect him to

do in properly discharging his duties. These acts are protected by qualified immunity.

        O’Connor also alleges that attorneys in Donovan’s office have shared information

harmful to O’Connor with defense attorneys. What others in Donovan’s office have done

is not a basis for liability for O’Connor, and O’Connor again points to no clearly

established law that would be violated by such acts.

        Finally, O’Connor alleges that Donovan said negative things about O’Connor

when contacted by the State Police while they were considering O’Connor for the

Vermont Drug Task Force. Responding to requests for information about an officer

being considered for a position by the State Police is within Donovan’s discretionary

administrative duties as head of the State’s Attorney’s Office. Again, O’Connor fails to

identify any clearly established law that would be violated by such discussions. Donovan

is thus entitled to qualified immunity for such actions.5

        O’Connor argues that many, if not all, of the alleged actions taken by O’Connor

were done with ill will, to harm O’Connor professionally. However, even if true, a bad

motive does not transform otherwise immune actions into ones to which liability can

attach. “[I]t is possible that an official will act out of improper motives and, nevertheless,

be protected from state tort claims by official immunity.” Cook v. Nelson, 167 Vt. 505,

510 (1998).

5
  Although not raised in Donovan’s motion, there is one additional allegation raised by O’Connor in his
response to the motion. That is a claim that Donovan “made it known” that O’Connor’s fellow officers
could be “exposed to civil suits for false arrests” if they were participants in cases the office declined.
Plaintiff’s Opposition at 15. The facts on which this allegation is based are described in O’Connor’s
responses to interrogatories. They involve his claim that another officer suggested at a meeting that such
liability might arise. Plaintiff’s Answers to Defendant’s First Set of Interrogatories and Requests for
Production, No. 9, at. 41. There is no factual support offered for the claim that Donovan said this. Even if
he did, it would be a discretionary act within the scope of his position as State’s Attorney and thus
protected by qualified immunity. No violation of O’Connor’s rights having been identified, the claim
would fail.


                                                    10
       The plaintiff in Levinsky argued that the defendant Attorney General had filed

charges against the plaintiff “with malice, knowing that the charges were baseless.”

Levinsky, 151 Vt. at 187. The Court rejected that claim, noting that because the

defendant was “protected by absolute immunity, . . . his motive is irrelevant.” Id.

Likewise, in Muzzy the Court reiterated that “[w]hen a prosecutor performs a quasi-

judicial act, his motive for acting is not subject to inquiry in a private suit.” 155 Vt. at

281(internal quotation omitted). The same is true when qualified immunity applies. Cook,

167 Vt. at 510 (“defendant in this case is entitled to [qualified] immunity if he acted in

objective good faith despite the jury’s finding that he acted with malice to

plaintiff”)(emphasis in original).

       As the Second Circuit has explained, “it is impossible to know whether the claim

is well founded until the case has been tried, and … to submit all officials, the innocent as

well as the guilty, to the burden of a trial” would be too great a burden on public officials

trying to do their job. Gregoire v. Biddle, 177 F. 2d 579, 581 (2d Cir. 1949), quoted in

Levinsky, 151 Vt. at 184. Thus, although a government official should not use his powers

to “vent his spleen upon others, or for any personal motive not connected with the public

good,” the competing policy interests have led courts to the conclusion that it is “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.” Id. See also, Muzzy, 155 Vt. at 281-82.

Thus, whether Donovan’s actions were taken out of malice or sincere concerns, his

motives are irrelevant to the application of the immunity doctrine.




                                             11
                      II. The Motion for Judgment on the Pleadings

       Donovan also moves for judgment on the pleadings as to the claim for intentional

infliction of emotional distress. Based upon its disposition of all claims on other grounds,

the court does not reach this question.

                                           Order

       As set forth above, the court treats some aspects of Donovan’s motion for

summary judgment as a motion to dismiss. The court grants the motion for summary

judgment and/or dismissal as set forth above. The motion for judgment on the pleadings

is moot. Defendant is directed to submit a proposed judgment within ten days, to which

Plaintiff shall have five days to respond pursuant to V.R.C.P. 58(d).

Dated at Burlington this 13th day of December, 2010.


                                              _____________________________
                                              Helen M. Toor
                                              Superior Court Judge




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