Muzzy v. State
Annotate this Case
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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 89-039
Jay Edward Muzzy Supreme Court
On Appeal from
v. Rutland Superior Court
State of Vermont, acting by and November Term, 1989
through the Rutland County State's
Attorney and the Rutland County
Public Defender
Arthur J. O'Dea, J.
Michael Ledden of Medor & McCamley, Rutland, for plaintiff-appellant
Abell, Kenlan, Schwiebert & Hall, P.C., Rutland, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
GIBSON, J. Plaintiff sued defendant Rutland County State's Attorney
after being arrested and detained on a DWI charge that the deputy state's
attorney had previously agreed to dismiss in connection with a plea
agreement on another charge. The deputy state's attorney who negotiated the
plea agreement neglected to secure the dismissal of the DWI charge and
plaintiff's unwarranted arrest followed. Plaintiff appeals from an order
granting summary judgment in favor of defendant on the basis of official
immunity. We affirm.
Judicial officers, including prosecutors, have absolute immunity from
civil suits to the extent that the actions complained of are associated with
the judicial phase of the criminal process and are within the general
authority of the officer. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976);
Polidor v. Mahady, 130 Vt. 173, 174, 287 A.2d 841, 843 (1972). (FN1) This
protection encompasses any act closely associated with litigation or
potential litigation, but does not cover administrative functions or
investigative functions that are not a part of the judicial function.
Barbera v. Smith, 836 F.2d 96, 99-100 (2d Cir. 1987), cert. denied, 109 S. Ct. 1338 (1989); Blake v. Rupe, 651 P.2d 1096, 1104 (Wyo. 1982), cert.
denied, 459 U.S. 1208 (1983). Accordingly, absolute immunity is extended
to prosecutorial activities that concern, among other things, the decision
whether to prosecute and the conduct of a plea bargain. Barbera, 836 F.2d
at 99-100.
When a prosecutor performs a quasi-judicial act, "his motive for acting
is not subject to inquiry in a private suit," Polidor, 130 Vt. at 174, 287 A.2d at 843, even if there is a claim of willful or malicious conduct. See
Yaselli v. Goff, 12 F.2d 396, 402 (2d Cir. 1926), aff'd per curiam, 275 U.S. 503 (1927). An inquiry into the discretionary or ministerial nature of the
act is not appropriate unless the act triggers only qualified immunity.
Levinsky v. Diamond, 151 Vt. 178, 185, 559 A.2d 1073, 1078 (1989).
Furthermore, absolute immunity protects acts of negligence or oversight that
occur within the scope of the prosecutor's quasi-judicial authority. See
Atkins v. Lanning, 556 F.2d 485, 488 (10th Cir. 1977) (district attorney
absolutely immune from suit where he neglected to verify that proper person
was named in indictment); see also Blake, 651 P.2d at 1100 ("As conceded in
Imbler, absolute immunity leaves the genuinely wronged criminal defendant
without civil redress against a malicious or dishonest prosecutor. That
would certainly include the lesser evil of the negligent prosecutor.").
The claim against the district attorney in Atkins -- that he failed
to properly supervise his investigators by verifying that the proper person
was named in the indictment -- is similar to the claim here that the
state's attorney failed to adequately supervise his staff regarding the
handling of the second DWI charge. The court in Atkins determined that the
acts of the district attorney and his underlings were within their quasi-
judicial authority rather than their investigative "police-related" role.
556 F.2d at 488-89. Similarly, we conclude that acts related to the
dismissal or processing of an information, as in the instant case, are
within the prosecutorial function and therefore absolutely immune from
civil suit. See Polidor, 130 Vt. at 175, 287 A.2d at 843 (quasi-judicial
acts -- even those "in excess of jurisdiction" -- are immune from civil
suit).
We recognized in Levinsky that such a policy may leave some plaintiffs
without civil redress. 151 Vt. at 198, 559 A.2d at 1086. Nevertheless, we
pointed out that it would be impossible to confine complaints to the guilty
officers without hampering the efficiency and efficacy of the office, and
concluded that it would be better to leave a few wrongs unredressed by civil
action than to subject judicial officers to constant threat of retaliation.
See id. at 184, 198-99, 559 A.2d at 1078, 1086-87; see also Imbler, 424 U.S.
at 425 ("[I]f the prosecutor could be made to answer in court each time such
a person charged him with wrongdoing, his energy and attention would be
diverted from the pressing duty of enforcing the criminal law.").
Affirmed.
FOR THE COURT:
Associate Justice
FN1. Polidor and Imbler make it clear that when prosecutors perform
quasi-judicial functions, they have the same immunity as judges. Therefore,
to the extent that Levinsky v. Diamond, 151 Vt. 178, 559 A.2d 1073 (1989),
in its analysis of official immunity, considers prosecutors acting in their
quasi-judicial role as entitled only to qualified immunity, it is overruled.
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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
________________________________________________________________________________
DISSENT
No. 89-039
Jay Edward Muzzy Supreme Court
On Appeal from
v. Rutland Superior Court
State of Vermont, acting by and November Term, 1989
through the Rutland County State's
Attorney and the Rutland County
Public Defender
Arthur J. O'Dea, J.
Michael Ledden of Medor & McCamley, Rutland, for plaintiff-appellant
Abell, Kenlan, Schwiebert & Hall, P.C., Rutland, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
MORSE, J., dissenting. I respectfully dissent. Regarding the
doctrine of official immunity, the record is unclear as to whether the
neglect leading to plaintiff's unwarranted arrest was the result of a
failure to do a ministerial function by a deputy prosecutor or someone
working in a clerical position in the state's attorney's office, or a
failure by a deputy prosecutor to undertake the proper steps in exercising a
discretionary function. Libercent v. Aldrich, 149 Vt. 76, 81, 539 A.2d 981,
984 (1987) ("a discretionary duty . . . requir[es] the exercise of
judgment[;] . . . a ministerial duty [is] one where 'nothing is left to
discretion -- a simple and definite duty . . . arising under conditions
admitted or proved to exist.'") (quoting State v. Howard, 83 Vt. 6, 14, 74 A. 392, 395 (1909)). Liability may be predicated upon neglect to do an act
like the automatic routing of a pleading, which does not involve the
exercise of discretion. While we agree that Levinsky v. Diamond, 151 Vt.
178, 185, 559 A.2d 1073, 1078 (1989) (deputy or assistant prosecutors
entitled only to qualified immunity for discretionary acts done within scope
of their authority in good faith) should be clarified or overruled in part
to reflect that an immunity defense should depend upon the function being
performed and not the title of the defendant, Forrester v. White, 484 U.S. 219, 227 (1988), this record is factually inadequate to reach the issue of
law raised in the motion for summary judgment.
I am also concerned that the procedural posture of this case does not
warrant dismissal. The trial court described the action as an attempt to
obtain "damages from the State of Vermont for the negligence of the State's
Attorney," but analyzed the case as one of official or judicial immunity.
In part, the confusion results from the plaintiff's dismissal of the State
of Vermont as a party while retaining his action against the Rutland County
State's Attorney. The stipulation of dismissal allows for the reinstatement
of the action against the State of Vermont. In fact, plaintiff asked that if
the defendant prevailed on the issue of immunity, "but the pleadings are
found defective as to parties, plaintiff requests the opportunity to amend
as justice requires." The trial court's statement does indicate some
confusion as to parties -- that is, it believed that the damages were to
come from the State -- but it never addressed the plaintiff's request to
amend the complaint. At a minimum, the case should be remanded to allow the
plaintiff to again amend the complaint to include the State of Vermont as a
party.
I am authorized to say that Justice Dooley joins in this dissent.
_____________________________________
James L. Morse, Associate Justice
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