Richardson v. Chevrefils

• Decision Date: 12 December 1988
• Docket Number: No. 87-265,87-265
• Citation: 131 N.H. 227,552 A.2d 89
• Parties: Mark B. RICHARDSON v. Richard A. CHEVREFILS, individually and as Director of the Division of Welfare et al.
• Court: New Hampshire Supreme Court

Page 89

552 A.2d 89

131 N.H. 227

Mark B. RICHARDSON v. Richard A. CHEVREFILS, individually and as Director of the Division of Welfare et al.

No. 87-265.

Supreme Court of New Hampshire.

Dec. 12, 1988.

McLane, Graf, Raulerson & Middleton P.A., Manchester (R. David DePuy, orally and on brief, and Steven V. Camerino on brief), for plaintiff.

Stephen E. Merrill, Atty. Gen. (Susan S. Geiger, Asst. Atty. Gen., on brief and orally), for defendants.

SOUTER, Justice.

State officials and employees from whom the plaintiff seeks damages under 42 U.S.C. § 1983 appeal the denial by the Superior Court (DiClerico, J.; Mayland H. Morse, Jr., Esq., Master) of their motion for summary judgment based on the defense of qualified immunity. We affirm in part, reverse in part, and remand.

From an agreed statement of facts, undisputed allegations, and the master's report, it appears that the plaintiff, Mark Richardson, was employed by the State Division of Welfare from 1977 through October 1983. He was then discharged for what the director of the division termed "inappropriate behavior," and a "major violation of his professional relationship," after the plaintiff was found to have "French-kissed" a fourteen-year-old girl over whom he had responsibility as a social worker. The plaintiff took an appeal to the personnel commission, but prior to its resolution against him, he was hired, in May, 1984, as executive director of the defendant Teen Haven, Inc., a residential home for boys, licensed under RSA chapter 170-E by the State Bureau of Child Care Standards and Licensing.

The plaintiff mentioned his new employment in the course of a hearing on his appeal to the personnel commission the following month. When this information came to the attention of the defendant Roger Desrosiers, a supervisor in the division of welfare, he caused the plaintiff's name to be listed in the State's central registry of perpetrators of child abuse, neglect and exploitation, with a reference to the 1983 incident as "sexual abuse" disclosed by a report that was "founded, prob. resolved." See RSA 169-C:35 (Supp.1983). Our opinion in Petition of Bagley, 128 N.H. 275, 280-81, 513 A.2d 331, 335-36 (1986) describes the statutory scheme providing for the central registry, and here it is sufficient to add that a child care facility may not be licensed under RSA chapter 170-E if it employs anyone listed in the registry. See N.H. Admin.Rules He-C 4002.03(c)(2)(e).

Once the plaintiff's name was listed, an employee of the bureau of child care standards and licensing, the defendant Joan Smith, telephoned the president of Teen Haven's board of directors, the defendant Robert Solomon, whom she informed of the listing and advised that Teen Haven's license under RSA 170-E:3 would not be renewed if the home continued to employ the plaintiff. That same day, the chief of the bureau, the defendant Robert Letellier, wrote Mr. Solomon that "[f]or receipt of license renewal for Teen Haven this month, it is necessary for the facility to come into full compliance [with the regulation prohibiting employment of a person listed in the central registry] within 24 hours of receipt of this letter." The plaintiff was fired and, in listening to Mr. Solomon's explanation, learned for the first time that his name had been placed in the central registry. The listing continued until well after the plaintiff had begun the present litigation, when at last State officials removed the name and acknowledged the plaintiff's right to a hearing prior to any further State action to list his name again.

More than a year after his discharge, the plaintiff brought this action, claiming that the failure to afford him notice and hearing prior to listing his name in the central registry violated rights to procedural due process under both the fourteenth amendment to the National Constitution and part I, article 15 of the Constitution of New Hampshire. He sought a declaration to that effect, an injunction against the continued listing of his name, and monetary damages under 42 U.S.C. § 1983. The complaint also included State law claims for defamation and interference with advantageous contractual relations. For reasons explained below, these common law counts, like the claims under the State Constitution, are not before us in this appeal.

In addition to the defendants mentioned before, the plaintiff named Sylvio Dupuis, who at the relevant time was the commissioner of health and welfare; Richard Chevrefils, the director of the division of welfare; David Bundy, the director of the division of children and youth services; and Robert Rowe, director of the Dover Children's Home, where the fourteen-year-old girl resided, who is alleged to have "published the inclusion of plaintiff's name on the Central Registry perpetrator's list to employees of the Bureau of Child Care Standards and Licensing and to the Superintendent of the Dover School System." All defendants employed by the State ("the State defendants") were named in both their individual and official capacities, except for the defendant Dupuis, who was sued only as an official representative of the State.

After the defendants had filed their answers, the plaintiff moved for partial summary judgment, to which the State defendants responded with a cross motion raising, inter alia, the defense of qualified immunity to the claim for damages under § 1983. On the master's recommendation, the superior court denied each motion. The master first found it to be undisputed that the State had by then "removed [the plaintiff's] name from the Perpetrators List (sic) [in the central registry] and acknowledged his right to a hearing," thereby mooting the claim for immediate injunctive relief. The master then recommended that an evidentiary hearing be held to determine entitlement to damages and attorney's fees. He concluded there was "no fair basis for the State's claim of qualified [immunity] and incorporate[d] the authorities cited by the plaintiff in support of this conclusion. Tilton v. Dougherty, 126 NH 294 (1985)."

Although all of the court's rulings adopting the master's recommendations would normally be treated as interlocutory, the federal courts regard the denial of a summary judgment motion's claim of qualified immunity under § 1983 as a final determination immediately appealable under the collateral order doctrine of Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). This treatment reflects the nature of qualified immunity as "an immunity from suit rather than a mere defense to liability [, which is] effectively lost if a case is erroneously permitted to go to trial." Id. at 526, 105 S.Ct. at 2815 (emphasis in original). We have followed Mitchell in accepting the State defendants' appeal from the order denying their motion for summary judgment, and the principal issue before us is whether the State defendants are entitled to qualified immunity as a defense to the prayer for damages under § 1983.

The doctrine of qualified immunity is a creature of federal law, as to which our holding in Tilton v. Dougherty, 126 N.H. 294, 493 A.2d 442 (1985), is irrelevant. The doctrine is understood to provide an affirmative defense that may be pleaded in either of the following types of actions brought to redress violations of interests protected under the National Constitution: (1) a constitutional tort action against a defendant alleged to have acted under color of federal law, of a sort recognized on the theory of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); see Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); or (2) a statutory action against a defendant said to have acted under color of State law to violate a plaintiff's right, privilege, or immunity secured by the National Constitution and laws, which may be maintained under § 1983, see Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald supra. In a case of either variety, qualified immunity may be raised as a defense to a claim against a governmental official for money damages. See Harlow v. Fitzgerald, supra 457 U.S. at 818, n. 31, 102 S.Ct. at 2738, n. 31.

Under the doctrine, "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory and constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, supra at 818, 102 S.Ct. at 2738 (citations omitted). On this test of "objective reasonableness," Harlow v. Fitzgerald, supra at 818, 102 S.Ct. at 2738, a defendant is entitled to immunity unless his actions violated "legal norms ... clearly established at the time of the challenged actions." Mitchell v. Forsyth, supra, 472 U.S. at 528, 105 S.Ct. at 2816, a standard that ignores a defendant's subjective state of mind, Davis v. Scherer, supra, 468 U.S. at 191, 104 S.Ct. at 3017, and renders inquiries into alleged malice irrelevant. In the absence of clearly established law, an official is not expected to anticipate how courts will later illuminate the law's grey areas, Borucki v. Ryan, 827 F.2d 836, 838 (1st Cir.1987) (citing Procunier v. Navarette, 434 U.S. 555, 565, 98 S.Ct. 855, 861, 55 L.Ed.2d 24 (1978)); see Harlow v. Fitzgerald, supra, 457 U.S. at 818, 102 S.Ct. at 2738, whereas clear law at the relevant time will preclude immunity unless an official can demonstrate extraordinary circumstances that could be said to have relieved him of responsibility to know the law's content. Harlow v. Fitzgerald, supra at 819, 102 S.Ct. at 2738.

The difficulty in applying this standard of reasonableness comes in identifying the degree of specificity with which the law must have been "clearly...