




2014 VT 133







Skaskiw and Vermont Volunteer
Services for Animals Humane Society (2014-041)
 
2014 VT 133
 
[Filed 19-Dec-2014]
 
 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.
 
 



2014 VT 133



 



No. 2014-041



 



Sue Skaskiw and Vermont
  Volunteer Services 
for Animals Humane Society


Supreme Court




 


On Appeal from




     v.


Superior Court, Washington Unit,




 


Civil Division




 


 




Vermont Agency of Agriculture,
  Department for
Children & Families, Kristin Haas, Kathleen Smith 
and Carol Maloney


September Term, 2014




 


 




 


 




Helen
  M. Toor, J.




 



Samantha C. Balmes, Beaverton, Oregon, for Plaintiffs-Appellants.
 
William H. Sorrell, Attorney General, and Danforth Cardozo,
III, Assistant Attorney General,
  Montpelier, for Defendants-Appellees. 
 
PRESENT:   Reiber, C.J., Dooley and Skoglund, JJ., and Pearson
and Durkin, Supr. JJ., 
                     Specially Assigned
 
 
¶ 1.            
DOOLEY, J.   Plaintiffs Sue Skaskiw and Vermont Volunteer Services
for Animals Humane Society appeal the trial court’s decision to grant the
motion to dismiss of defendants Vermont Agency of Agriculture, Department for
Children and Families, Kristin Haas, Kathleen Smith, and Carol Maloney on Skaskiw’s
claims of defamation, violation of due process, economic interference, and
failure to discharge a mandatory duty.  We affirm.
¶ 2.            
The Vermont Spay/Neuter Incentive Program (VSNIP) was created in 2006 to
subsidize dog, cat, and wolf-hybrid sterilization procedures for low-income
Vermonters.  Sue Skaskiw and the organization she directs, Vermont Volunteer
Services for Animals Humane Society (VVSA), administered the VSNIP program from
its inception in 2006 until the expiration of Skaskiw’s contract in October
2012.  Defendant Vermont Agency of Agriculture initially managed the program
but responsibility was transferred to defendant Department for Children and
Families (DCF), a department within the Agency of Human Services, in 2011.  Defendant
Haas is an employee of the Agency of Agriculture; defendants Smith and Maloney
are employees of DCF.  
¶ 3.            
Sometime after the program’s inception, the Agency of Agriculture
contracted with Skaskiw to run VSNIP.  She still held the contract when
responsibility shifted to DCF in 2011, but at that time DCF put the contract
out for a competitive bid.  Two bidders, Skaskiw and VT-CAN!, submitted
proposals, and VT-CAN! won the contract.  Skaskiw subsequently filed this
lawsuit.
¶ 4.            
In her complaint, Skaskiw pleaded one count of defamation against Smith
and DCF; one count of violation of due process against Smith; one count of
tortious interference with a prospective economic advantage against all
defendants based on conduct by Haas, Smith, and Maloney; and one count of
failure to discharge a mandatory duty against DCF.  The thrust of Skaskiw’s
complaint is that Smith made libelous statements to coworkers about her ability
to run the program and that these libelous statements prejudiced the bid selection
committee against her; that Haas, Smith, and Maloney manipulated the bid
selection process to disadvantage her; that DCF administered the bidding
process in ways that disadvantaged her; that VT-CAN! had a “known conflict of
interest” with DCF and was improperly using VSNIP to benefit its own veterinary
practice; and that DCF continues to mismanage the VSNIP program to Skaskiw’s
detriment.
¶ 5.            
In response to Skaskiw’s complaint, the defendants filed a motion to
dismiss for failure to state a claim upon which relief can be granted under
Vermont Rule of Civil Procedure 12(b)(6).  The trial court granted defendants’
motion and dismissed Skaskiw’s claims.  This appeal followed.
¶ 6.            
We review decisions on a motion to dismiss de novo under the same
standard as the trial court and will uphold a motion to dismiss for failure to
state a claim if “it is beyond doubt that there exist no facts or circumstances
that would entitle the plaintiff to relief.”  Dernier v. Mortg. Network,
Inc., 2013 VT 96, ¶ 23, 195 Vt. 113, 87 A.3d 465 (quotation omitted). 
We assume as true all facts as pleaded in the complaint, accept as true all
reasonable inferences that may be derived from the plaintiff’s pleadings, and
assume as false all contravening assertions in the defendant’s pleadings.  Id. 
Our role in reviewing the trial court’s decision on such a motion is limited to
determining “whether the bare allegations of the complaint are sufficient to
state a claim.”  Kaplan v. Morgan Stanley & Co., 2009 VT 78,
¶ 7, 186 Vt. 605, 987 A.2d 258 (mem.).
I. 
Defamation
¶ 7.            
We turn first to Skaskiw’s defamation claim against Smith.  In Count I of
her amended complaint, Skaskiw alleged that Smith made false statements about her
to coworkers during the bid selection process and that DCF is vicariously
liable for these defamatory statements.  She alleged that the “statements are
blatantly false, and defendants have failed to provide proof of the statements’
validity after repeated requests” and that Smith “made these statements during
the course of her employment with defendant DCF and used her official DCF email
account.”  Defendants moved to dismiss this claim on the grounds that Smith’s
statements were privileged, Smith is entitled to qualified immunity, and DCF is
entitled to sovereign immunity.  The trial court found that even if Smith’s
statements were conditionally privileged, she may have abused that privilege by
knowingly making false statements, but the court ultimately dismissed the
claims against Smith and DCF on immunity grounds.[1]
¶ 8.            
A successful defamation claim requires:
(1) a false and defamatory statement
concerning [the plaintiff]; (2) some negligence, or greater fault, in
publishing the statement; (3) publication to at least one third person;
(4) lack of privilege in the publication; (5) special damages, unless
actionable per se; and (6) some actual harm [to the plaintiff] so as to
warrant compensatory damages.
Stone v. Town of Irasburg,
2014 VT 43, ¶ 61, ___ Vt. ___, 98 A.3d 769 (quoting Lent v. Huntoon,
143 Vt. 539, 546-47, 470 A.2d 1162, 1168 (1983)).  Under consideration here is
whether the statements were published to a third person and, if so, whether
they were privileged.
¶ 9.            
We frequently have adopted provisions of the Restatement (Second) of
Torts with respect to defamation, Sullivan v. Stear, 2011 VT 37,
¶ 11, 189 Vt. 442, 23 A.3d 663, and turn there now for guidance.  Defamatory
statements are published if they are communicated “intentionally or by a
negligent act to one other than the person defamed.”  Restatement (Second) of
Torts § 577 (1977).  Statements made within the scope of employment to
agents of the same principal are considered published for the purposes of
defamation.  Id. § 577 cmt. i.  We therefore conclude that the
second and third elements set out above sufficiently were alleged in Skaskiw’s
complaint.
¶ 10.        
Such statements between co-employees are not actionable, however, if
they are “published upon an occasion that makes [them] conditionally
privileged” and “the privilege is not abused.”  Id. § 593.  The
privilege is abused when the defendant “knows the matter to be false” or “acts
in reckless disregard as to its truth or falsity,” id. § 600; communicates
the matter for an improper purpose, id. § 603; knowingly communicates
the matter to individuals not otherwise privileged, id. § 604; or
does not reasonably believe that communicating the matter is “necessary to
accomplish the purpose for which the privilege is given.”  Id.
§ 605.  Plainly speaking, the defendant must have communicated the
statements in furtherance of the interests sought to be protected by the
conditional privilege and not “solely from spite or ill will.”  Id.
§ 603 cmt. a.  Our cases have characterized the elements of the abuse of a
privilege as the presence of “malice.”  Crump v. P & C Food Mkts., Inc.,
154 Vt. 284, 293, 576 A.2d 441, 447 (1990); Lent, 143 Vt. at 548-49, 470
A.2d at 1169.
¶ 11.        
One particular conditional privilege recognized by the Restatement is applicable
here: a conditional privilege for an inferior state officer whose statements
were made in performance of official duties.[2]
 Restatement (Second) of Torts § 598A.  This privilege extends to
communications made between government officers and from an officer to
individuals outside the government.  Id. § 598A cmt. d.  Although
we have not had the occasion to recognize this privilege in the past, other
jurisdictions have done so.  See D. Elder, Defamation: A Lawyer’s Guide
§ 2:28 (2003) (“The majority rule provides a qualified privilege to
inferior state governmental officers or officials making defamatory statements
necessary to the performance of official duties . . . .” (footnotes
omitted) (quotation omitted)).[3] 
Given our previous reliance on the Restatement in this area of law, we adopt
this privilege.  It is directly applicable because Skaskiw alleged Smith was an
employee of DCF and made the statements in the course of her employment.  As
noted above, a conditional privilege is abused, and becomes ineffective, if the
defendant acted with malice.  A conditional privilege is overcome by a showing
of one of two forms of malice: (1) “conduct manifesting personal ill will,
reckless or wanton disregard of plaintiff’s rights, or carried out under
circumstances evidencing insult or oppression” or (2) “knowledge of the
statement’s falsity or with reckless disregard of its truth.”  Crump,
154 Vt. at 293, 576 A.2d at 447 (quoting Lent, 143 Vt. at 550, 470 A.2d
at 1170).
¶ 12.        
Although we described absence of privilege as an element of the tort in Stone,
it should, for pleading rules, be seen as an affirmative defense with the
burden of proof on the defendant.  See Burbage v. Burbage, No. 12-0563, 2014
WL 4252274, at *3 (Tex. Aug. 29, 2014).  Since a plaintiff has no obligation to
plead absence of privilege, this treatment normally would preclude grounding a
motion to dismiss on the presence of a privilege.  Courts have recognized an
exception, however, where the plaintiff’s allegations in the complaint show the
presence of a privilege.  Helmstadter v. N. Am. Biological, Inc., 559
N.W.2d 794, 801 (Neb. Ct. App. 1997); Dell v. K.E. McCay’s Mkt., 543
P.2d 678, 681 (Or. 1975); see also Burbage, 2014 WL 4252274, at *3 (stating
that plaintiff has burden where complaint shows presence of conditional
privilege).  That is the case here.  Thus, we conclude that Skaskiw also had to
include in her pleadings allegations that would overcome the presence of a
privilege—in this case that Smith acted with malice.  We find no such
allegation in the defamation count of the complaint.  
¶ 13.        
Vermont’s rules of pleading closely mirror the federal standards and
require “a short and plain statement of the claim showing that the pleader is
entitled to relief,” V.R.C.P. 8(a); see F.R.C.P. 8(a)(2) (same), and allow
conditions of the mind, such as malice, to be “averred generally.”  V.R.C.P.
9(b); see F.R.C.P. 9(b) (“alleged generally”).  Although plaintiffs normally
meet the pleading burden in a defamation case with general allegations of
malice, see Woodruff v. Trepel, 725 A.2d 612, 623 (Md. Ct. Spec. App.
1999), malice need not be alleged explicitly but can be inferred from the
pleadings if the complaint alleges facts upon which an inference can be made.  See
Neveu v. City of Fresno, 392 F. Supp. 2d 1159, 1184 (E.D. Cal. 2005) (holding
that plaintiff’s failure to plead malice was not fatal to claim because
allegations that defendants retaliated against plaintiff for his whistleblowing
activities was “sufficient to infer intent to injure”).
¶ 14.        
We recognize that Skaskiw claims malice in her brief and even points to
other counts in the complaint where she alleged that Smith acted intentionally,
knowingly, and recklessly.  We also recognize that the trial court found malice
implicit in the complaint.  As set out above, Skaskiw pleaded only that Smith’s
statements were false and that Smith failed to provide proof of their validity
after being requested to do so.  We cannot infer from these allegations that
Smith knew the statements were false or acted in reckless disregard of their
truth, nor can we infer that Smith made these statements for any improper
purpose.  The allegation that “defendants have failed to provide proof of the
statements’ validity after repeated requests” merely supports Skaskiw’s claim
that the statements were false, but that is not sufficient to defeat the
conditional privilege.  We therefore find no error in the trial court’s
dismissal of Skaskiw’s defamation claim.
¶ 15.        
Because we can affirm the trial court’s dismissal of Skaskiw’s
defamation claim against Smith and DCF based on the deficient pleadings, we
need not reach defendants’ immunity claims.  
II. 
Due Process
¶ 16.        
We turn next to Skaskiw’s due process claim against Smith.  In Count II
of her complaint, Skaskiw alleged that Smith responded to her initial questions
on the request for proposal (RFP) in an “ambiguous and incomplete manner” and
failed to respond to follow-up questions; that Smith provided information to
VT-CAN! that she did not provide to Skaskiw; and that Smith ensured that at
least three members of the RFP selection committee viewed Skaskiw “in a negative
and incompetent manner” and otherwise corrupted the committee process.  In her
brief, Skaskiw argues that her competitor, VT-CAN!, had a conflict of interest
and should not have been allowed to bid.  Skaskiw generally alleged that these
actions denied her due process of law.[4] 
She did not allege that these actions denied any rights created by statute or
regulations governing bidding rights.[5] 

¶ 17.        
Again defendants sought to dismiss the claim, arguing that Skaskiw had
no protected due process interest as a disappointed bidder.  In response,
Skaskiw claims that she has a protected liberty interest, as established by
DCF’s bidding procedures, and that Smith’s actions deprived her of that
interest.  Defendants counter that Skaskiw has no protected interest because
she has no legitimate claim of entitlement to the bid and no standing to assert
such an interest.  The trial court agreed with defendants and dismissed
Skaskiw’s claim for failure to demonstrate a valid interest that would trigger
due process protections; it did not reach the standing question.  We agree with
the trial court.
¶ 18.        
We begin our analysis by defining the nature of the interest at issue. 
To assert a valid due process claim, plaintiffs “must show that they were
deprived of a liberty or property interest within the protection of the
Fourteenth Amendment.”  Ahern v. Mackey, 2007 VT 27, ¶ 11, 181 Vt.
599, 925 A.2d 1011 (mem.).  Although Skaskiw claims a liberty interest, the
trial court correctly pointed out that what Skaskiw actually is claiming is a
property interest in the VSNIP contract.  Skaskiw argues that DCF created a
liberty interest when it established a bidder’s right to a fair and equitable
bidding process, as evidenced by its grievance procedures for disappointed
bidders, which allow a disappointed bidder to contest the award for bias,
discrimination, conflict of interest, or failure of DCF to follow procedures.
¶ 19.        
In support of the alleged liberty interest, Skaskiw relies on Washington
v. Glucksberg, 521 U.S. 702 (1997), in which the United States Supreme
Court considered whether a terminally ill patient’s asserted right to assisted
suicide was a fundamental liberty interest protected by the due process
clause.  Yet Glucksberg addresses substantive due process rights,
not procedural due process rights; to that end the U.S. Supreme Court
stated that some liberty interests are so “deeply rooted in this Nation’s
history and tradition,” including the right to marry, the right to have
children, and the right to bodily integrity, that they must be protected
against certain government action regardless of the fairness of the procedures. 
521 U.S. at 719-21.  Skaskiw claims DCF did not follow the appropriate
procedures in awarding the bid—clearly a claim of procedural rather than
substantive due process rights.  Skaskiw makes no attempt to claim that
the right to an award of a government contract is so “deeply rooted” in our
history and tradition as to rise to the level of a protected liberty interest.
¶ 20.        
Our holding that Skaskiw has, at most, a property interest does not end
our inquiry.  We have recognized a protected property interest in the right to
government employment.  See Brennan v. Town of Colchester, 169 Vt. 175, 179,
730 A.2d 601, 605 (1999).  Such an interest arises when a plaintiff has a
“legitimate claim of entitlement to a governmental benefit rather than a
unilateral expectation.”  In re New Cingular Wireless PCS, LLC, 2012 VT
46, ¶ 13, 192 Vt. 20, 54 A.3d 141 (quotation omitted).  A plaintiff may
have a legitimate claim to government employment when “an implied agreement or
policy exists,” Brennan, 169 Vt. at 179, 730 A.2d at 605, but the
plaintiff “clearly must have more than an abstract need or desire for it.”  Bd.
of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972); cf. LaFlamme
v. Essex Junction Sch. Dist., 170 Vt. 475, 484, 750 A.2d 993, 1000 (2000)
(stating that mere unilateral hope of becoming elected village trustee does not
rise to level of entitlement).  
¶ 21.        
Skaskiw’s interest does not, however, rise to the level of government
employment.  Because a bidder has nothing more than a unilateral hope or
expectation of securing a contract, a disappointed bidder typically has no
legitimate claim of entitlement and thus no protected property interest.  See,
e.g., Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 118 P.3d 1018, 1025-27
(Alaska 2005); Alohacare v. Dep’t of Human Servs., 276 P.3d 645, 658
(Haw. 2012); Carroll F. Look Constr. Co. v. Town of Beals, 2002 ME 128,
¶ 16, 802 A.2d 994; Cleveland Constr., Inc. v. City of Cincinnati, 2008-Ohio-2337,
¶ 7, 888 N.E.2d 1068 (“[A] property interest in a public contract is
created in two situations: one, when a bidder is actually awarded a contract
and then deprived of it; and two, when a governmental entity has limited
discretion in awarding the contract yet abuses that discretion.”).
¶ 22.        
Skaskiw recognizes these precedents but argues that the necessary
property interest arises from laws that regulate the bidding process
prohibiting discrimination, conflicts of interest, and the like.  The
requirements to which Skaskiw refers do not change the fundamental nature of
her interest.  Although all government agencies must comply with
anti-discrimination and conflict-of-interest restrictions, DCF was under no
obligation to award the VSNIP contract to any particular bidder irrespective of
the price offer.  Skaskiw had nothing more than a mere unilateral hope or
expectation that she would win the contract.  This expectation is insufficient
to create the needed property interest.  We therefore find no error in the
trial court’s dismissal of Skaskiw’s due process claim.
III. 
Tortious Interference
¶ 23.        
We turn next to Skaskiw’s claim of tortious interference against Haas,
Smith, and Maloney for their alleged interference with her economic
relationship with DCF, as well as against DCF and the Agency of Agriculture
based on vicarious liability.  On this count, Skaskiw made many detailed
allegations with the overarching claim that the intentional actions of Haas,
Smith, and Maloney “in concert and individually, directly and proximately”
disrupted Skaskiw’s economic relationship with DCF.  Skaskiw alleged that each
action was performed by the individual defendants in the course of their
employment with either DCF or the Agency of Agriculture.
¶ 24.        
To bring a valid claim of tortious interference with a prospective
economic advantage, a plaintiff must plead:
(1) the existence of a valid
business relationship or expectancy; (2) knowledge by the interferer of
the relationship or expectancy; (3) an intentional act of interference on the
part of the interferer; (4) damage to the party whose relationship or expectancy
was disrupted; and (5) proof that the interference caused the harm
sustained.
J.A. Morrissey, Inc. v. Smejkal,
2010 VT 66, ¶ 21, 188 Vt. 245, 6 A.3d 701.  A valid claim of tortious
interference must also involve three distinct parties—a plaintiff, a defendant,
and a third party with whom the plaintiff wishes to deal.  Stone, 2014
VT 43, ¶ 66; Restatement (Second) of Torts § 766 (“One who intentionally
and improperly interferes with the performance of a
contract . . . between another and a third person by
inducing or otherwise causing the third person not to perform the contract, is
subject to liability to the other for the pecuniary loss resulting to the other
from the failure of the third person to perform the contract.”) (emphasis
added)).
¶ 25.        
In Stone, we concluded that the selectboard members, who had interfered
with the town treasurer’s performance of duties to the town, were not third
parties for the purposes of tortious interference because the selectboard
members were agents of the town acting within the scope of their employment. 
2014 VT 43, ¶ 67; accord Preyer v. Dartmouth Coll., 968 F. Supp. 20,
26 (D.N.H. 1997) (“[A] co-employee acting as an agent of [an] employer cannot
be a third party for the purposes of interfering with the contract between the
plaintiff and [the] employer.”); Commercial Indus. Constr., Inc. v. Anderson,
683 P.2d 378, 380-81 (Colo. App. 1984) (affirming trial court’s holding that
agent acting in scope of authority cannot be held liable for interference with
contracts of principal); BECO Constr. Co. v. J-U-B Eng’rs, Inc., 184
P.3d 844, 849-50 (Idaho 2008) (same); Tarleton State Univ. v. Rosiere,
867 S.W.2d 948, 952-53 (Tex. App. 1993) (same).  Thus, we conclude that there
was no third party here because Smith, Haas, and Maloney merely were acting as
agents of DCF.
¶ 26.        
Some courts, however, have carved out an exception for cases where the
interference is “motived by actual malice, where actual malice is defined as
bad faith, personal ill will, spite, hostility, or a deliberate intent to harm
the plaintiff.”  E.g., Preyer, 968 F. Supp. at 26 (quoting Soltani v.
Smith, 812 F. Supp. 1280, 1297 (D.N.H. 1993)).  A key component in the
analysis of a tortious interference claim under the Restatement involves an
understanding of the term “improper” and how it differs from “malice.”  As the
Restatement notes, actual malice, i.e., ill will toward the plaintiff, is not
required to satisfy the element of tortious interference.  Restatement (Second)
of Torts, ch. 37 Spec. Intro. Note.  Rather, actions are improper if they are
not justified.  Id.  An action may be justified if, for example, it was
undertaken to protect the public interest.  See Haegert v. McMullan, 953
N.E.2d 1223, 1234 (Ind. App. 2011) (holding that defendant’s interference with
plaintiff’s employment contract by initiating and participating in sexual
harassment investigation was not improper because defendant was justified in
stopping plaintiff’s pattern of harassing students and faculty).
¶ 27.        
While the Preyer court does not state precisely how “malicious”
actions differ from “improper” actions, it defines actual malice in traditional
terms, 968 F. Supp. at 26 (“[A]ctual malice is defined as bad faith, personal
ill will, spite, hostility, or a deliberate intent to harm the plaintiff.” (quoting
Soltani, 812 F. Supp. at 1297)), and cites precedent that includes in
this concept of malice actions of an employee taken outside of the scope of
employment.  Id.; see Huff v. Swatz, 606 N.W.2d 461, 467-68 (Neb.
2000) (holding that at-will employee could be liable for tortious interference
against co-employee when employee acted for his own personal benefit and not
for benefit of employer).  In Preyer, the plaintiff alleged that the
defendant had made derogatory racial remarks toward her, preventing her from
securing a position with the college; the court found these allegations
sufficient to overcome the motion to dismiss.  968 F. Supp. at 26.
¶ 28.        
Skaskiw’s complaint alleged that the actions of Haas, Smith, and Maloney
were intentional, knowing, and negligent.  Certainly, one may conclude that these
defendants acted improperly, which would be sufficient under a traditional
tortious interference claim involving a distinct third person.  But here we are
dealing with an exception to the rule that a third party cannot interfere with
itself,[6]
which, if allowable at all,[7]
requires a higher showing of malice.  Skaskiw did not allege that defendants
were acting with actual malice or that they were acting outside of the scope of
their employment, that is, acting for their own benefit rather than the benefit
of DCF.  Skaskiw’s allegations suggest that defendants did not want her to
continue with the VSNIP program, but she makes no allegation that defendants were
motivated by personal spite or ill will.  Again, in her brief, Skaskiw made
allegations not in the complaint, but, as we concluded with respect to the
defamation claim, allegations in the brief cannot make up for their absence in
the complaint.  We therefore find no error in the trial court’s dismissal of
Skaskiw’s claim of tortious interference.  Because of our resolution of this claim,
we do not reach defendants’ sovereign immunity defense with respect to DCF and
the Agency of Agriculture.
IV.  Failure to Discharge a Mandatory Duty
¶ 29.        
Finally, we address Skaskiw’s claim that DCF failed to discharge a
mandatory duty.  Skaskiw alleged that DCF failed to properly manage VSNIP
funds, administer VSNIP, and conduct VSNIP in a manner that avoids the
appearance of a conflict of interest.  To remedy DCF’s alleged failure to
discharge its mandatory duty, Skaskiw seeks to: (1) permanently enjoin DCF from
awarding VSNIP contracts to VT-CAN! and any other organizations with known
conflicts of interest and (2) remove VT-CAN! as the VSNIP grantee.  Defendants
argue, and the trial court agreed, that Skaskiw’s request to enjoin DCF from
awarding contracts to organizations with known conflicts of interest is not ripe
because DCF is currently administering the program directly and not through a
contractor and that her request to remove VT-CAN! as grantee is moot because
VT-CAN! no longer administers the program.  We agree.
¶ 30.        
At the outset, we note the mismatch between the broad allegations of DCF’s
mismanagement of VSNIP and the very limited remedies sought.  The remedies
focus solely on VT-CAN! and its alleged conflict of interest and address
virtually none of the allegations of DCF’s mismanagement.
¶ 31.        
Skaskiw’s request to enjoin DCF from awarding future VSNIP contracts to
VT-CAN! and any other organizations with known conflicts of interest is not
ripe for review.  Claims are ripe “when there is a sufficiently concrete case
or controversy,” as opposed to one that is abstract or hypothetical.  State
v. M.W., 2012 VT 66, ¶ 11, 192 Vt. 198, 57 A.3d 696 (quotation omitted). 
“[C]ourts should not render decisions absent a genuine need to resolve a real
dispute,” id., and should not render decisions on claims that are
“purely speculative . . . involving events that are
contingent upon circumstances that may or may not occur in the future.”  In
re Robinson/Keir P’ship, 154 Vt. 50, 57, 573 A.2d 1188, 1192 (1990).
¶ 32.        
In Robinson/Keir Partnership, the plaintiff claimed that he faced
double liability for loans from a corporation to the plaintiff’s partnership:
once in an arbitration award, which was at issue in the litigation, and again
in a suit by the corporation.  We concluded that the plaintiff’s claim was not
ripe for review because the corporation had not filed a lawsuit, and thus the
plaintiff’s concern about double recovery was premature.  Id. at 57-58,
573 A.2d at 1192.  Similarly, Skaskiw’s concern about DCF contracting with
conflicted organizations to administer VSNIP is merely speculative because DCF is
not now contracting for administration of VSNIP.
¶ 33.        
Skaskiw’s request to remove VT-CAN! as the VSNIP contractor is moot.  A
case becomes moot if “the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome.”  In re Moriarty, 156
Vt. 160, 163, 588 A.2d 1063, 1064 (1991) (quotation omitted)  A case that
originally presented an actual controversy may become moot if the facts or
circumstances of the case change such that we can “no longer grant effective
relief.”  Id.  In Houston v. Town of Waitsfield, 2007 VT 135,
¶ 5, 183 Vt. 543, 944 A.2d 260 (mem.), we held moot the landowners’
request to enjoin the town from drilling test wells on their property because
the town completed the test wells prior to the appeal.  Id. ¶ 1. 
The landowners argued that, because the wells were an ongoing taking entitling
them to damages and because the town was committing an ongoing trespass, the
controversy was still live and not moot.  In rejecting the taking argument, we
emphasized that the only relief the landowners sought in their complaint was an
injunction against the drilling and that they were not able to request damages
at the appellate level that they did not request in the complaint.  Id.
¶¶ 7-8.  And in rejecting the trespass argument, we noted that the
drilling was a discrete event that was over and could not be undone and that
the town had no intention of conducting any further drilling.  Id.
¶ 10.
¶ 34.        
Our rationale in Houston is applicable here.  Skaskiw’s response
to defendants’ assertion of mootness is to restate the broad allegations of
mismanagement for which she sought no remedy in her complaint.  The only remedy
sought was to terminate the VT-CAN! contract, but that contract has expired. 
Since VT-CAN! no longer is administering the program, its contract was
discrete, and there is no indication that DCF could reinstate that contract, we
cannot grant the relief Skaskiw seeks and the claim is moot.
¶ 35.        
Skaskiw argues that we have recognized a mootness exception for cases
that are “capable of repetition, yet evading review,” In re S.H., 141
Vt. 278, 281, 448 A.2d 148, 149 (1982) (quoting Roe v. Wade, 410 U.S.
113, 125 (1973)), and argues that it should apply here.  To invoke this
exception, “(1) the challenged action [must be] in its duration too short to be
fully litigated prior to its cessation or expiration, and (2) there [must be] a
reasonable expectation that the same complaining party [will] be subjected to
the same action again.”  State v. Tallman, 148 Vt. 465, 469, 537 A.2d
422, 424 (1987) (alteration in original) (quoting Weinstein v. Bradford,
423 U.S. 147, 149 (1975)).  To overcome mootness, there must be something more
than mere possibility of future injury.  Moriarty, 156 Vt. at 164, 588
A.2d at 1065.  Skaskiw has failed to demonstrate any reasonable expectation
that DCF will enter into any new contract with VT-CAN! or that any future
dispute over a second contract would involve the same issues she seeks to raise
in this litigation.  At most, she has demonstrated only a mere possibility that
DCF will reassign the contract to VT-CAN! after the dismissal becomes final.  We
do not agree that the exception applies.
¶ 36.        
Skaskiw also argues that a second mootness exception applies here: one
for cases of “great public concern.”  We have not recognized this exception[8]
and, in any event, doubt that we would find it applicable in this situation.  We
therefore find no error in the trial court’s dismissal of Skaskiw’s claim of
failure to discharge a mandatory duty.
Affirmed.
 
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 




[1]
 The trial court granted the motion to dismiss based on qualified immunity and
not on the sufficiency of Skaskiw’s pleadings.  We affirm, but on a different
rationale.


[2]
 Another conditional privilege is available for communications that protect the
legitimate interests of the recipient or a third person, as long as the
defendant reasonably believes that information “affects a sufficiently
important interest of the recipient or a third person” and the defendant was
either under a legal duty to communicate the information to the recipient or
communicated the information in response to a request.  Restatement (Second) of
Torts § 595.  This privilege extends to protecting “a lawful business,
professional, property or other pecuniary interest.”  Id. § 595
cmt. d.  We do not need to determine whether this privilege applies.
 


[3] 
The majority rule among states is that these lower-level state officials are
entitled to a conditional privilege, and a minority of states extend to these
officials the absolute privilege historically reserved for high-ranking
officials.  Elder, supra, § 2:14 (stating that absolute immunity
traditionally is available only to high-ranking officials but that some
jurisdictions broadly extend absolute privilege where historically only conditional
privilege was due.)  We need not consider where to draw the line in this case
because the absence of malice is sufficient to affirm the motion to dismiss.


[4]
 She did not allege the source of a remedy although she demanded both
compensatory and punitive damages.  We infer that her remedy would lie under the
Civil Rights Act, 42 U.S.C. § 1983.
 


[5]
 The record indicates that Skaskiw initially pursued an appeal based on a
conflict of interest but then abandoned it.


[6]
 Haas worked for the Agency of Agriculture and not DCF.  Skaskiw does not
suggest that this difference is alone sufficient to produce a different
result.  Because all of the events underlying Skaskiw’s complaint occurred
during DCF’s administration of the program, it is fair to conclude that, with
respect to the actions alleged, Haas was an agent of DCF.
 


[7]
 We are not deciding that we would allow a tortious interference claim against
an agent of a third party based on malice, but only that no malice is alleged
here, so under any definition of the applicable elements, Skaskiw’s complaint
is insufficient.


[8]
 Skaskiw cited three decisions in support of her argument.  None recognize the
exception she seeks.  In re Assurecare of Vermont, Inc., 165 Vt. 535, 541,
686 A.2d 959, 963 (1996), states that there is a strong public policy in
Vermont to protect the health and well-being of its citizens but does not
address any mootness claims.  Tallman, 148 Vt. at 468-69, applies the
exception to the mootness doctrine, allowing claims capable of repetition but
evading review, but does not discuss exceptions for issues of great public
concern.  In a ruling on a motion for reargument in Beecham v. Leahy,
130 Vt. 164, 287 A.2d 836 (1972), in which we addressed the validity of an
abortion statute, the defendant argued that the case had become moot because
the plaintiff, since the appeal was heard, had an out-of-state abortion.  We
denied the defendant’s mootness claim because there had been a justiciable controversy
at the time of the hearing and no ground for withholding the decision was made
before its release.  Id. at 171, 287 A.2d at 840.  Although we noted
that abortion is a matter of great public concern, id. at 171-72, 287
A.2d at 841, that was not our rationale for denying the mootness claim.


