O'Connor v. Donovan

• Decision Date: 13 April 2012
• Docket Number: No. 11–033.,11–033.
• Citation: 48 A.3d 584,2012 VT 27
• Court: Vermont Supreme Court
• Parties: John (Jack) O'CONNOR v. Thomas J. DONOVAN, Jr.

48 A.3d 584

2012 VT 27

John (Jack) O'CONNOR

v.Thomas J. DONOVAN, Jr.

No. 11–033.

Supreme Court of Vermont.

April 13, 2012.

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.

BURGESS, J.

¶ 1. 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 officer 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 his 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, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); see also Scheuer v. Rhodes, 416 U.S. 232, 246–47, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (recognizing that “higher officers 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, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 40 L.Ed. 780 (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...