Murray v. White

Citation587 A.2d 975,155 Vt. 621
Decision Date18 January 1991
Docket NumberNo. 89-459,89-459
PartiesRobert MURRAY and Rhonda Murray, Individually and as Guardians of Erik Murray v. Philip H. WHITE, et al.
CourtUnited States State Supreme Court of Vermont

Deborah T. Bucknam, St. Johnsbury, for plaintiffs-appellees.

Jeffrey L. Amestoy, Atty. Gen., and Geoffrey A. Yudien, Asst. Atty. Gen., Montpelier, for defendant-appellant.

Before ALLEN, C.J., GIBSON and DOOLEY, 1 JJ., and PECK, J. (Ret.) and MAHADY, District Judge, Specially Assigned.

ALLEN, Chief Justice.

Defendant Luba Routsong appeals the trial court's denial of her motion for summary judgment on the state constitutional and tort claims against her. Because we find defendant entitled to summary judgment on the basis of qualified immunity, we reverse.

This litigation stems from the investigation, incarceration, and unsuccessful attempts to criminally prosecute and revoke the conditional pardon of plaintiff, Robert Murray, for the alleged sexual molestation of two minors. Plaintiff, along with his wife and child, initiated the litigation against thirteen individuals, claiming violations of plaintiff's federal and state constitutional rights, as well as the commission of the torts of malicious arrest, false imprisonment, malicious prosecution, abuse of process, and intentional infliction of emotional distress. Defendant is a former caseworker for the Vermont Department of Social and Rehabilitation Services (SRS). The background necessary for disposition of her appeal is sketched below.

On March 13, 1985, a mother telephoned the Vermont Probation and Parole Office in Newport to complain that plaintiff, a neighbor, had sexually molested her two daughters, ages seven and ten. The Probation and Parole Office notified Corporal Leo Willey of the Vermont State Police, who then contacted defendant at the SRS office in Newport. Defendant and Corporal Willey interviewed the mother, father, and the two daughters at the family's home, and took taped statements from the daughters at the state police barracks later that day. In those statements both daughters indicated that they had been sexually molested by plaintiff. Defendant then prepared the daughters for testifying before the Parole Board, and was present at those proceedings on March 29, 1985. The Parole Board, two and a half months later, reported to the Governor that it could not find, by substantial evidence, support for the charge that plaintiff had committed a criminal offense. A notice of dismissal of the criminal charges that had been brought against plaintiff was filed on June 25, 1987.

In his complaint, plaintiff alleges that defendant had undertaken a "one-sided investigation of the fact situation," had purposefully withheld information from psychologists who interviewed the daughters, and had, along with Corporal Willey,

manipulated [the] interviews with the ... children on March 13, 1985, conducted them in a highly leading manner, taped only those portions of the interviews that were damaging to Mr. Murray and stopped the tape for portions of the interviews that tended to show that Mr. Murray had not molested the girls, and in transcribing the tapes altered words and meanings to the detriment of Mr. Murray.

Further, plaintiff contends that because of defendant's prior contacts with the alleged victims' family and the resulting knowledge that the family contained, and associated with, known child molesters, defendant knew, or should have known, that the allegations against plaintiff were false and should have conducted a more in-depth investigation of the allegations.

Defendant moved for judgment on the pleadings, arguing that plaintiff had failed to state a claim upon which relief could be granted, and, in any event, that defendant was protected from liability by the doctrine of qualified immunity. Defendant subsequently filed a motion for summary judgment with an accompanying affidavit by defendant, which denied some of the allegations in plaintiff's complaint.

The trial court heard oral argument on defendant's two motions. The court denied defendant's motion for judgment on the pleadings. The court granted defendant's motion for summary judgment as to the federal constitutional claims against her on the grounds that plaintiff had failed to establish that defendant had performed an act that operated to deprive plaintiff of his federal constitutional rights. The court denied defendant's motion as to the state constitutional and tort claims, stating that there were material facts in dispute, and that there had not been an adequate time for discovery.

Defendant's motion for reconsideration of this ruling was denied. Defendant then filed with the court a notice of appeal as of right, or in the alternative, a motion for permission to appeal. 2 Such permission was denied, leaving this appeal based on appealability as of right.

I.

As a threshold matter, we must determine whether the denial of defendant's motion for summary judgment premised on qualified immunity falls within the collateral order exception adopted by this Court in State v. Lafayette, 148 Vt. 288, 290-91, 532 A.2d 560, 561 (1987). We note first that such a determination is obligatory for this Court. Our appellate jurisdiction over the instant appeal is dependent upon the appeal falling within the collateral order exception. See Hospitality Inns v. South Burlington R.I., 149 Vt. 653, 656-57, 547 A.2d 1355, 1358 (1988). The fact that the nonmoving party does not object to our appellate jurisdiction, or even affirmatively supports it, is not sufficient to confer it. Murphy Motor Sales, Inc. v. First National Bank of St. Johnsbury, 121 Vt. 404, 406, 159 A.2d 94, 96 (1960) (when lack of jurisdiction appears "we do not wait for parties to object, but this Court must act of its own motion"); see, e.g., Chicago & North Western Transportation Co. v. Ulery, 787 F.2d 1239, 1240 (8th Cir.1986) ("Although all parties join in urging us to accept th[e] position [that the issue of qualified immunity is immediately appealable], we must still examine it for ourselves, as it concerns our own subject-matter jurisdiction."). 3

In Lafayette we adopted the collateral order exception to the finality rule announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). We took the requirements of the exception to be those stated in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978): "[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held that a trial court's denial of a claim of qualified immunity met these requirements, and we agree with this determination.

The linchpin of the Supreme Court's opinion in Mitchell was the perception that qualified immunity "is an immunity from suit rather than a mere defense to liability." Id. at 526, 105 S.Ct. at 2815 (emphasis in original). Qualified immunity in this state is in accord with this perception. It is an attempt to balance redress for the wronged with the fact that public officials must be allowed the freedom necessary to perform their obligations. As was made evident in Levinsky v. Diamond, 151 Vt. 178, 198-99, 559 A.2d 1073, 1087 (1989), this freedom is threatened not just by ultimate liability, but also by the very necessity of litigating the claim. In adopting the objective good faith test enunciated in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), for determining whether a public official is entitled to qualified immunity, Levinsky quoted with approval Harlow 's statement that:

"[B]are allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery....

Reliance on the objective reasonableness of an official's conduct ... [should] permit the resolution of many insubstantial claims on summary judgment."

Levinsky, 151 Vt. at 190, 559 A.2d at 1081-82 (quoting Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2737-38). A subjective test, by contrast, would mean that a material issue of fact would almost always be present, precluding summary judgment and "forcing lower-level state employees to undergo, at the very least, extensive discovery and motion practice in defending their actions. It is not in the public interest to expose state employees to the distraction and expense of such litigation." Id. at 199, 599 A.2d at 1087. The desire in Levinsky to promote summary judgment resolution of qualified immunity claims is consistent with the perception that qualified immunity is indeed an immunity from the suit itself, not just a defense to ultimate liability.

Viewing qualified immunity as an immunity from suit, the issue of whether the denial of qualified immunity meets the requirements of the collateral order exception is more readily resolved. It is clear that the denial of qualified immunity is "effectively unreviewable on appeal from a final judgment," because immunity from suit is necessarily lost in reaching final judgment. Mitchell, 472 U.S. at 525-27, 105 S.Ct. at 2814-16. It is also clear that the denial of qualified immunity "conclusively determines the disputed question," because immunity from suit is conclusively determined by the denial. Id. at 527, 105 S.Ct. at 2816. And while it is not as clear that the denial of qualified immunity "resolves an important issue completely separate from the merits of the action," we concur in the Supreme Court's conclusion that it does. Id. at 527-29, 105 S.Ct. at 2816-17.

As the Supreme Court stated in Mitchell,

it follows from the recognition that qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct that...

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