Gendreau v. Gorczyk

ENTRY_ORDER.93-059; 161 Vt. 595; 641 A.2d 95

[Filed 21-Dec-1993]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-059

                            SEPTEMBER TERM, 1993


 Joseph Gendreau                   }          APPEALED FROM:
                                   }
                                   }
      v.                           }          Chittenden Superior Court
                                   }
                                   }
 John Gorczyk, et al.              }          DOCKET NO. S970-92-CnC


              In the above entitled cause the Clerk will enter:

      Plaintiff appeals from a dismissal of his action requesting that
 defendants produce certain public records, pursuant to Vermont's Access to
 Public Records Act, 1 V.S.A. {{ 315-320.  We reverse.

      This action arose as a result of defendants' failure to produce public
 documents relating to the sex offender treatment program run by the
 Department of Corrections.  Plaintiff alleges noncompliance with 1 V.S.A. {
 318, and defendants deny the allegations.  After some maneuvering, some
 documents were disclosed to plaintiff.  Plaintiff, however, was not
 satisfied with the disclosure because he believed other documents relating
 to the request existed.  Plaintiff filed interrogatories and other
 discovery, but received no response from defendants.  Plaintiff then filed a
 motion for partial summary judgment and an affidavit, claiming that
 inconsistent statements by the opposing counsel had led him to believe that
 defendants' response to his document request was inadequate.  Defendants
 filed no opposing affidavits.

      The trial court held a hearing on the motion, at which defendants,
 through their counsel, claimed that plaintiff's first request, relating to
 documents showing a waiver of prosecution by the Attorney General, had been
 fully satisfied and that no further documents existed.  The court accepted
 defense counsel's oral representations in open court as true and resolved a
 disputed question of fact, namely, that other documents relating to a waiver
 of prosecution did not exist.  The court then ordered defendants to satisfy
 the rest of plaintiff's request within twenty days, and further ordered that
 plaintiff had until January 1, 1993, to show cause why his action should not
 be dismissed.  In response, plaintiff asserted his right to receive answers
 to interrogatories to prove his case, and maintained the burden was on
 defendants to produce, not on plaintiff to show cause.  The request to
 compel discovery was not acted on, and when plaintiff failed to show cause,
 the action was dismissed.

 


      Plaintiff raises a number of errors on appeal, which may be
 consolidated into two issues.  The first is whether the action should have
 been dismissed, and the second is whether the court erred in refusing to
 compel defendants to answer discovery.

      The action was dismissed prematurely.  The parties were before the
 court on plaintiff's motion for partial summary judgment.  Summary judgment
 is appropriate only when the moving party establishes there is no genuine
 issue as to any material fact.  V.R.C.P. 56(c); Kelly v. Town of Barnard,
 155 Vt. 296, 299, 583 A.2d 614, 616 (1990).  Denial of the moving party's
 pleadings is an insufficient response to a Rule 56 motion.  V.R.C.P. 56(e).
 The nonmoving party, however, may establish a genuine issue of material fact
 by offering affidavits, made upon personal knowledge by an affiant who is
 competent to testify as to the matters stated.  Id.  The trial court may
 also take oral testimony as to whether there is a genuine issue of material
 fact, although it should do so "sparingly and with great care," because the
 proceeding under Rule 56 should not become a preliminary trial.  Bingham v.
 Tenney, 154 Vt. 96, 101, 573 A.2d 1185, 1187 (1990).

      Here, the trial court committed two errors on the motion for partial
 summary judgment.  First, it improperly accepted opposing counsel's oral
 representations in open court as a proper response to the summary judgment
 motion.  Second, it used this "oral testimony" for the purpose of proving
 the ultimate fact in issue against the moving party. Assuming, arguendo,
 that representations of counsel could be accepted as evidence, the most they
 demonstrated here was that there was a genuine issue of material fact, i.e.,
 that the parties disputed whether defendants were withholding documents.

      The court, in effect, turned the partial summary judgment hearing into
 a hearing on the merits.  Needless to say, plaintiff had no notice of this
 potential disposition.  More importantly, the court improperly shifted the
 burden of proof to plaintiff to show cause why his action should not be
 dismissed.  In a public records act appeal to superior court, the burden is
 on the agency to sustain its action.  Finberg v. Murnane, ___ Vt. ___, ___,
 623 A.2d 979, 981 (1992).  The dismissal order was based on the underlying
 assumption that, by the show-cause deadline, plaintiff would have received
 all the documents to which he was entitled.  He could then return to court
 and complain if the remaining documents ordered by the court were not
 produced.  This was a meaningless opportunity to plaintiff for two reasons.
 First, the court had already resolved an essential question of fact against
 him and closed the issue as to the letter of waiver, and second, the court
 did not order defendants to respond to discovery.  Without discovery
 responses, plaintiff had no ability to judge whether he was receiving all
 documents to which he was entitled.

      Our holding does not assume that any lawyer in the case lied to the
 trial court.  That is not the issue.  Nor is the issue whether plaintiff
 was actually entitled to prevail on his motion for partial summary judgment.
 The issue is whether the case should have been dismissed in the context of
 plaintiff's motion.  Moreover, we emphasize, under Finberg, that complaints
 to enforce disclosure of public records are civil actions in which the

 

 plaintiff is entitled to discovery and the full application of the civil
 rules.

      Reversed and remanded for further proceedings not inconsistent with
 this opinion.


-------------------------------------------------------------------------------
                                  Dissenting


      Morse, J., dissenting.   Because I think that remanding this case is
 unnecessary, values empty technicalities over judicial discretion, and
 wastes limited trial court resources, I respectfully dissent.

      Plaintiff's attorney sought access under the public records act to
 what the trial court characterized as a "letter of indulgence," a letter
 allegedly from the attorney general's office to the corrections department
 stating that it would not be prosecuted for using child pornography in its
 program for sexual abusers.  In support of the motion, plaintiff's attorney
 filed an affidavit, stating why he believed such a document existed:

           Mr. Rushford [the attorney representing the corrections
           department] told me that the Attorney General's office
           had issued a letter of waiver that allows the use of
           child pornography in our State government.  I asked Tom
           [Rushford] to send me a copy and he agreed.

           . . . .

           I talked to Thomas Rushford twice by phone . . . .  Both
           times I asked for the . . . letter of waiver and it was
           promised to me. . . .

           [At a subsequent court hearing] I asked Tom Rushford
           where was the letter of waiver.  He said he couldn't
           find the document because it was buried somewhere in Dr.
           Pither's files.  I asked him if he [Rushford] could sign
           another one.  Tom said that only "Jeff" could.  I asked
           if he meant Jeff Amestoy and Tom replied affirmatively.

           . . . .

           Because Tom Rushford told me on four separate occasions
           that the Attorney General's letter of waiver exists,
           including the information as to who signed it and that
           it includes a promise to not prosecute on the use of
           chid pornography, I believe this document exists.

      This affidavit was insufficient as a matter of law to support summary
 judgment in plaintiff's favor.  See V.R.C.P. 56(a) (supporting affidavits
 must demonstrate that there is admissible evidence to show there is a
 genuine issue of fact for trial).  Plaintiff's counsel has not established
 the existence of a letter based on his personal knowledge; he has only
 hearsay based on statements of opposing counsel.

 


      Then, at the summary judgment hearing, Attorney Rushford represented to
 the court that two memoranda already provided to plaintiff's attorney were
 the only documents that could be construed as a letter of waiver.  These
 memoranda were an inquiry from an attorney in the Human Services Division to
 an attorney in the Attorney General's Office about whether the corrections
 department's clinical use of pornography would be an affirmative defense to
 criminal prosecution and a response confirming that, under 13 V.S.A. { 2824
 (b)(1), it would be.

      When plaintiff's attorney repeated the facts alleged in his affidavit
 and charged that Attorney Rushford had led him to believe that an additional
 letter might exist under Attorney General Amestoy's signature, the trial
 court directly asked Rushford if such a letter existed.  He responded on the
 record:

             Attorney Rushford:  He has the letter [referring to
           the two memoranda already turned over].  There is
           nothing else.

             The court:  Tom, is there any letter from the attorney
           general's office to corrections about, on the general
           subject matter of, prosecution for possession of
           pornographic materials?

             Attorney Rushford:  No.

             The court:  Is there any other document about this
           issue?

             Attorney Rushford:  No.

 (Emphasis added.)

      At this point, plaintiff's attorney asked that Attorney Rushford sign
 an affidavit to this effect.  The court responded that this was not neces-
 sary because Rushford had made his statement in open court.  The trial
 court accepted Rushford's representation, believing that an attorney's
 obligation to be truthful to the court made his statement equivalent to a
 signed affidavit.  See DR 1-101(A)(4) (lawyer shall not "[e]ngage in conduct
 involving dishonesty, fraud, deceit, or misrepresentation").  DR 7-
         102(A)(3).

      Plaintiff's attorney's assertion that the letter of waiver existed was
 based solely on Mr. Rushford's prior statements. To the extent that peti-
 tioner's attorney's affidavit and assertions on the record were even legally
 sufficient to raise the existence of the waiver letter existed, Mr.
 Rushford's unequivocal denial to the court that there was such letter
 resolved the issue.  Granting partial summary judgment was appropriate
 because the court had determined that there was no issue of material fact.

      At oral argument before this Court, Rushford repeated his statements.

 

           The Court:  Are you aware of any document that the
           plaintiff wants that you have not turned over?

           Attorney Rushford:  None.  Absolutely none.

      I do not think we should assume, without any evidence to the contrary,
 that a member of the bar would fail to disclose information that he had a
 duty to disclose under direct questioning by the trial court and this Court.
 I see no point in sending this back for the court to try a nonissue.
 Reversing and remanding for mere make-work is a waste of precious judicial
 resources and demoralizing to the trial court.  I would affirm.

      I am authorized to say that Chief Justice Allen joins this dissent.





                                     BY THE COURT:
 Dissenting:

 _________________________________   _______________________________________
 James L. Morse, Associate Justice   Ernest W. Gibson III, Associate Justice


 _________________________________   _______________________________________
 Frederic W. Allen, Chief Justice    John A. Dooley, Associate Justice


                                     _______________________________________
                                     Denise R. Johnson, Associate Justice



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