Murray v. White

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. 89-459


Robert Murray and Rhonda Murray,             Supreme Court
Individually and as Guardians of
Erik Murray                                  On Appeal from
                                             Orleans Superior Court
     v.
                                             October Term, 1990
Philip E. White, et al


Alan W. Cheever, J.

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

Jeffrey L. Amestoy, Attorney General, and Geoffrey A. Yudien, Assistant
  Attorney General, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson and Dooley, (FN1) JJ., and Peck, J. (Ret.) and
          Mahady, D.J., Specially Assigned


     ALLEN, C.J.   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 liti-
gation 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 constitu-
tional 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 defend-
ant'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. (FN2) 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 defend-
ant'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., Inc., 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. 403, 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."). (FN3)
     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 (1949).  We took the requirements of the exception to be those stated
in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (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 (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 (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 (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).  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, exten-
sive 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.  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.  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.
     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 a claim of
          immunity is conceptually distinct from the merits of the
          plaintiff's claim that his rights have been violated.

Id. at 527-28.  Qualified immunity attaches to public officials who are (1)
acting during the course of their employment and  acting, or reasonably
believing they are acting, within the scope of their authority; (2) acting
in good faith; and (3) performing discretionary, as opposed to ministerial
acts.  Levinsky, 151 Vt. at 185, 559 A.2d  at 1078.  Inquiry into the first
and third criteria is obviously separate from the substantive inquiry into
whether plaintiff's rights have been violated.  Further, the good faith
inquiry is separate in that it too does not ask whether plaintiff's rights
have been violated, but rather whether clearly established law exists, and
only then whether defendant's conduct transgressed such law.  Mitchell, 472
U.S at 528; see also Wright v. South Arkansas Regional Health Ctr., Inc.,
800 F.2d 199, 202-03 (8th Cir. 1986) (summary judgment immediately
appealable even where premised on lack of evidence rather than lack of
clearly established law).  Finally, we note the inconsistency that would
result if our adoption in Levinsky of an objective inquiry into good faith,
intended to preserve immunity from suit itself, was interpreted as a bar to
immediate appellate review of a trial court's denial of such immunity.
     Accordingly, we find that defendant's appeal from the partial denial of
her summary judgment motion premised on qualified immunity is properly
before us.
                                    II.
     Summary judgment is appropriate only where the moving party establishes
that there is no genuine issue of material fact and that the party is
entitled to judgment as a matter of law.  Gore v. Green Mountain Lakes, 140
Vt. 262, 264, 438 A.2d 373, 374 (1981); V.R.C.P. 56(c).
                                    A.
     In ascertaining whether a genuine issue of fact exists, the nonmoving
party is to be given the benefit of all reasonable doubts and inferences.
Pierce v. Riggs, 149 Vt. 136, 139, 540 A.2d 655, 657 (1987).  This does not
mean, however, that the opponent to a summary judgment motion may simply
rest on allegations in the pleadings to defeat the motion.  Gore, 140 Vt. at
266, 438 A.2d  at 375; V.R.C.P. 56(e).  The allegations must have sufficient
support in specific facts to create a genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
     As concerns defendant's alleged conduct, there is no genuine issue of
material fact.  The thrust of plaintiff's complaint against defendant is
that she did not conduct a sufficiently thorough investigation given her
knowledge of other instances of sexual molestation of family members, and
that the investigation she did do was conducted in a manipulative manner.
There is no dispute that defendant, at the time the allegations arose
against plaintiff, knew that a stepdaughter had been sexually molested by
the father in the family and that the family had associated with alleged and
convicted sexual molesters.  Her investigation of the allegations did not go
beyond interviewing the family, taking taped statements from the two alleged
victims, and learning that plaintiff was a convicted murderer.  As to the
taking of the statements, some leading questions were asked by Corporal
Willey.  There was a break taken during one of the statements, during which
plaintiff alleges that the witness's memory was "corrected," an inference
which we will accept as true.  Plaintiff alleges in his complaint that in
the transcription of the statements, words and meanings were altered to his
detriment.  Defendant denied this in an affidavit, and plaintiff has not
presented any evidence to support the allegation.  Accordingly, this
allegation does not create a genuine issue of fact.  See Gore, 140 Vt. at
266, 438 A.2d  at 375.
     Defendant prepared the daughters for their testimony before the Parole
Board.  There is no dispute as to her actions during those proceedings, as a
record of them is before us.  During those proceedings defendant asked one
leading question, requested a break and that the mother be brought in when
one of the daughters did not respond in accordance with her tape-recorded
statement, and did not correct a misstatement by the same daughter.  As to
plaintiff's allegation that defendant deliberately withheld information from
a doctor who interviewed the daughters, defendant in her affidavit states
that she had left SRS prior to the time of the interview, and plaintiff has
pointed us to no specific facts that indicate otherwise.  Plaintiff's final
allegations, concerning defendant's deposition testimony in 1987, are
without sufficient support in specific facts to create a genuine issue.
                                    B.
     Defendant is entitled to summary judgment if, as a matter of law, she
is entitled to qualified immunity on the basis of these facts.  We hold that
she is.  As stated earlier, defendant is entitled to qualified immunity if
she was (1) acting during the course of her employment and acting, or
reasonably believing she was acting, within the scope of her authority; (2)
acting in good faith; and (3) performing discretionary, as opposed to
ministerial acts.  Levinsky, 151 Vt. at 185, 559 A.2d  at 1078.  Plaintiff
has not attempted to argue that defendant was acting outside her employment
and outside the scope of her authority, or that defendant was performing a
ministerial, as opposed to discretionary, act.  Nor would any such argument
be successful.  The issue that is contested is whether defendant was acting
in good faith as measured by the objective standard adopted in Levinsky.
     Good faith exists where an official's acts did not violate clearly
established rights (FN4) of which the official reasonably should have known.
Levinsky, 151 Vt. at 190, 559 A.2d  at 1082 (adopting Harlow).  This good
faith inquiry does not ask whether plaintiff's rights were violated, but
rather whether the official reasonably should have known that what she was
doing violated plaintiff's rights.  See Harlow, 457 U.S.  at 818 (good faith
depends "on the objective reasonableness of an official's conduct, as
measured by reference to clearly established law").  As such, a lack of good
faith is not established by asserting that the right to be free from the
torts alleged in plaintiff's complaint is clearly established.  Rather,
"[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right. . . .
[I]n the light of pre-existing law the unlawfulness must be apparent."
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted).
     Plaintiff has failed to show that defendant should reasonably have
known that her acts violated plaintiff's rights.  We have been pointed to no
clearly established law, (FN5) nor have we found any, which should have made it
known to defendant that her acts violated plaintiff's rights. (FN6) Defendant
received a call from Corporal Willey, informing her of the mother's report
that her minor daughters had been sexually molested by plaintiff.  In
conformity with 33 V.S.A. { 4915 (formerly 33 V.S.A. { 685) (SRS "shall
cause an investigation to commence within seventy-two hours after receipt of
a report"), defendant immediately undertook an investigation.  In her
investigation, defendant interviewed the family at their home, and assisted
in taking taped statements from the alleged victims.  This investigation was
in compliance with the statute, which provides, in part, that

          (b) The investigation, to the extent that it is
          reasonable, shall include:
               (1) A visit to the child's place of residence or
          place of custody and to the location of the alleged
          abuse or neglect;
               (2) An interview with, or observance of the child
          reportedly having been abused or neglected. . . .

{ 4915(b).  The extent of defendant's investigation was also fully
consistent with the SRS Policy Manual, which provides, in part:

          Sources of Information

          Most information will come from the individual or family
          and other persons directly involved.  Contacts shall
          include the person complaining, and the family
          concerned.  Individual interviews with family members,
          including the children whenever appropriate or
          feasible, are desirable, as well as joint interviews
          with the family group.

          Collateral sources shall be used selectively, as
          indicated by the situation. . . .

SRS, Agency of Human Services, Social Services Policy Manual { 2019.3
(1982).  Further, it is undisputed that both of the alleged victims in their
statements indicated that they had been sexually molested by plaintiff.
     The fact that defendant's investigation was in compliance with
statutory requirements, combined with an inability to find any clearly
established law that imposed on defendant an obligation to investigate
further, compels the conclusion that the extent of defendant's investigation
was in good faith.  Defendant should not have reasonably known that she was
obligated to investigate any further than she did.  In addition, defendant
should not have reasonably known that the manner of her investigation
violated plaintiff's rights.  The law surrounding the taking of statements
from suspected minor sexual abuse victims, and the amount of assistance
which can be given them in preparation for trial, was not, and is not, so
clearly established that defendant reasonably should have known that her
acts violated plaintiff's rights.  See Myers v. Morris, 810 F.2d 1437, 1459-
61 (8th Cir. 1987).
     We adopted Harlow's objective test of good faith in an effort to strike
the proper balance between allowing redress for the wronged and allowing
"public officials the freedom necessary to perform their obligations without
fear of retaliation."  Levinsky, 151 Vt. at 199, 559 A.2d  at 1087.  In this
balance, officials should fear suit only where they reasonably should know
that suit is warranted, i.e., where the unlawfulness of their acts is
apparent.  Subjecting defendant to suit here would be to ignore this
balance.  More devastating than the injustice this would work on defendant
is the chilling effect this would have on officials charged with the
difficult task of investigating child abuse.  Accordingly, we reverse the
trial court's denial of defendant's motion for summary judgment as to the
state constitutional and tort claims and remand with directions that summary
judgment be entered for defendant on all claims remaining against her.
     Reversed and remanded.

                                        FOR THE COURT:




                                        Chief Justice




FN1.    Justice Dooley heard oral argument but took no part in the decision.

FN2.    Our procedural rule governing collateral final order appeals,
V.R.A.P. 5.1, effective May 1, 1989, was adopted after the filing of the
notice in the instant appeal.

FN3.    If an appeal fell within the collateral order exception simply
because both parties labelled it as such, or one party failed to object to
it as such, the exception would become the rule, effectively eviscerating
our finality requirement.  See In re Pyramid Co., 141 Vt. 294, 300-01, 449 A.2d 915, 918 (1982).

FN4.    The good faith inquiry in a { 1983 suit asks whether an official's
acts violated clearly established "statutory or constitutional rights" of
which the official reasonably should have known because { 1983 provides a
remedy only for violations of federal constitutional and statutory law.  See
Owen v. City of Independence, 445 U.S. 622, 649 (1980) ({ 1983 requires
inquiry into whether defendant "has conformed to the requirements of the
Federal constitution and statutes"); Baker v. McCollan, 443 U.S. 137, 146
(1979) ("Section 1983 imposes liability for violations of rights protected
by the Constitution, not for violations of duties of care arising out of
tort law.").  Qualified immunity from a state law claim does not contain the
"statutory or constitutional rights" limitation because a state law claim is
not so limited.  Qualified immunity from tort liability will not be made to
depend upon whether the tort has been codified.  Accordingly, the "statutory
or constitutional" limitation is not part of qualified immunity from state
law claims.

FN5.    Plaintiff has pointed us to only two cases:  In re Scott County
Master Docket, 618 F. Supp. 1534 (D. Minn 1985), and Melson v. Bristow, No.
86-122 (D. Vt. 1986).  The first observation is that both were decided after
all of defendant's acts had occurred, excepting her deposition in 1987.  The
second observation is that neither comes close to creating clearly
established law in plaintiff's favor.  In re Scott, which rejected qualified
immunity for social workers in defendant's position who carried out acts
similar to those carried out by defendant, was squarely reversed in all
respects pertinent to defendant by Myers v. Morris, 810 F.2d 1437 (8th Cir.
1987).  It is thus hard to consider it as having created clearly established
law.  Bristow was unpublished and is substantively contrary to the point
plaintiff is trying to assert.

FN6.    Plaintiff asserts that defendant's good faith should not be
determined by viewing defendant's acts in isolation, but rather as "in
concert" with the acts of the other defendants.  Plaintiff's assertion,
whether premised on conspiratorial liability or joint tort liability, fails
in this case.  Unsupported allegations of conspiratorial purpose are as
ineffective in piercing the objective standard of good faith as are
unsupported allegations of subjective bad faith.  Myers v. Morris, 810 F.2d 
at 1453.  The fact that the professional responsibilities of each defendant
brought them into contact with the case against plaintiff does not alone
support allegations of conspiracy amongst them.  Nor do we think that this
fact alone should require that defendant's good faith be determined by the
acts of the other defendants under a theory of joint tort liability.  To so
require would undermine the very purpose of qualified immunity -- allowing
an official to act without fear of suit unless she should know that what she
is doing is in violation of clearly established rights -- because it would
impose on an official a fear of suit caused by acts of another about which
the official might not even know.