Shields v. Gerhart

SHIELDS_V_GERHART.92-452; 163 Vt 219; 658 A.2d 924

[Filed 27-Jan-1995]


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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press. 


                                 No. 92-452


Carol Shields                                     Supreme Court

                                                  On Appeal from
          v.                                      Addison Superior Court

Rolland Gerhart, Director,                        June Term, 1993
Division of Licensing &
Registrations, Social and Rehabilitation
Services; Durwood Collier, Frederick Satink


David A. Jenkins, J.

William A. Hunter, Ludlow, for plaintiff-appellant

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane,
  Assistant Attorney General, Waterbury, for defendants-appellees


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


     DOOLEY, J.   Plaintiff Carol Shields appeals the dismissal of her
actions against the Department of Social and Rehabilitation Services (SRS)
and its personnel based on the Vermont Constitution and 42 U.S.C.  1983. 
Plaintiff argues that she has a private cause of action for damages under the
Vermont Constitution, that sovereign immunity does not bar such a cause of
action, and that her failure to serve defendants should not bar an action
against them in their individual capacities.  We affirm the dismissal of the
actions against defendants in their 

 

individual capacities.  On the state constitutional claims, we affirm,
although on grounds different from those employed by the trial court. 

     The facts of this case are set forth in Shields v. Gerhart, 155 Vt. 141,
142-45, 582 A.2d 153, 154-56 (1990) (Shields I).  Plaintiff owned and
operated a child care facility and sued SRS and its agents when her day care
facility license was revoked and her application to become a registered
family day care home was denied.  Plaintiff alleges that defendants revoked
her license and denied her application in retaliation for her public
opposition to an SRS policy prohibiting corporal punishment.  She further
alleges that defendants used fraud and deception to induce her to abandon her
license and forego her appeal rights by encouraging her to apply as a
registered facility when they knew she could not qualify as such.  As a
result, plaintiff claims that defendants have deprived her of her property
interest in her day care center in violation of the Civil Rights Act, 42
U.S.C.  1983, and the Vermont Constitution. 

     In Shields I, we held that plaintiff's civil rights claims and Vermont
constitutional claims were not time barred.  155 Vt. at 150, 582 A.2d  at 159.
 We dismissed plaintiff's civil rights claims against SRS and other
defendants in their official capacities because a state agency and its
officials acting in their official capacities are not "persons" under 42
U.S.C.  1983.  Id. We left open the question of whether plaintiff could
maintain a cause of action under the Vermont Constitution. 

                                     I.

     Plaintiff first appeals the trial court's denial of her motion for an
enlargement of time to serve defendants in their individual capacities.  She
argues that because there would be no prejudice to defendants by late
service, the court should have granted her motion.  A motion to 

 

enlarge time will be granted only if the court finds, in its discretion, that
"the failure to act was the result of excusable neglect."  V.R.C.P. 6(b). 
Plaintiff, therefore, must show that the trial court abused its discretion in
order to prevail on appeal.  See  Miller v. Ladd, 140 Vt. 293, 297, 437 A.2d 1105, 1108 (1981). 

     On January 29, 1988, plaintiff was granted permission to amend her
original complaint and assert claims against defendants in their individual
capacities.  She never served defendants on the new claims, but moved for the
enlargement of time over three years later, on February 22, 1991.  In denying
the motion, the trial court indicated that plaintiff's failure to effect
service resulted from mere oversight which did not cross the threshold of
excusable neglect.  See 11 C. Wright & A. Miller, Federal Practice &
Procedure  2858, at 170 (1973) (gross carelessness and ignorance of law or
facts are not enough to show excusable neglect).  In light of the finding of
oversight and the amount of time plaintiff had to effect service, the court
reasonably concluded that her neglect was not excusable, and did not abuse
its discretion.  We therefore affirm the dismissal of plaintiff's claims
against the defendants in their individual capacities. 

                                    II.

     Plaintiff next appeals the court's decision that she has no private
cause of action under Chapter I, Articles 1 and 13 of the Vermont
Constitution.  The trial court reached this conclusion on three grounds: (1)
no private right of action for money damages for violation of the Vermont
Constitution is available; (2) even if such relief were available in
appropriate cases, it is unavailable here because of the presence of
alternative avenues for relief in the Vermont Tort Claims Act and "mechanisms
for plaintiff to assert her position in the licensing process"; and (3)
plaintiff's claims against defendants in their official capacities are barred
by the state's 

 

sovereign immunity.  In Shields I, we indicated a preference for deciding
whether plaintiff has any valid claims before addressing possible defenses. 
Thus, we start by examining whether plaintiff has stated a claim on which
damages could be awarded.  For purposes of this issue, we assume it is
irrelevant whether defendants were sued in their official or individual
capacities.(FN1) 

     We find it unhelpful analytically to separate out whether money damages
are ever available for state constitution violations from whether they are
available in this case.  Thus, we combine these questions. 

     In these unique circumstances, the inquiry into whether monetary relief
is available to plaintiff is itself a two-step inquiry.  First, we must
determine whether the constitutional provisions involved are self-executing,
that is, whether they support an action against the State or its agents
without implementing legislation.  Second, if we find a provision is
self-executing, we must determine whether monetary damages are available as a
remedy for a violation.  See Figueroa v. State, 604 P.2d 1198, 1206 (Haw.
1979); Rockhouse Mountain Property Owners Ass'n v. Town of Conway, 503 A.2d 1385, 1388 (N.H. 1986). 

 

                                    A.

     We note at the outset the preeminence of the Vermont Constitution in our
governmental scheme.  As the expression of the will of the people, a
constitution stands above legislative or judge-made law.  "[W]here a
constitution asserts a certain right, or lays down a certain principle of law
or procedure, it speaks for the entire people as their supreme law, and is
full authority for all that is done in pursuance of its provisions."  Davis
v. Burke, 179 U.S. 399, 403 (1900). Therefore, the absence of legislative
enabling statutes cannot be construed to nullify rights provided by the
constitution if those rights are sufficiently specified.  See Gray v. Bryant,
125 So. 2d 846, 851 (Fla. 1960); Peper v. Princeton Univ. Bd. of Trustees,
389 A.2d 465, 476 (N.J. 1978); cf. Phillips v. Youth Dev. Program, Inc., 459 N.E.2d 453, 457 & n.4 (Mass. 1983) ("The absence of a statutory remedy for
the violation of constitutional rights cannot absolutely and in all cases bar
judicial protection of those rights.").  But see Bagg v. University of Texas
Medical Branch, 726 S.W.2d 582, 584 n.1 (Tex. Ct. App. 1987) (because no
statute or case provides for redress of violation of constitutional right,
there is no state constitutional tort akin to federal Bivens claim). 

     "The very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws whenever he receives an
injury."  Marbury v. Madison, 1 U.S. 368, 378, 1 Cranch 137, 163 (1803).  The
Vermont Constitution mandates that "[e]very person within this state ought to
find a certain remedy, by having recourse to the laws, for all injuries or
wrongs which he may receive in his person, property or character."  Vt.
Const. ch. I, art. 4.  Though Article 4 does not create substantive rights,
it does ensure access to the judicial process.  See Levinsky v. Diamond, 151
Vt. 178, 197, 559 A.2d 1073, 1086 (1989).  The 

 

common law, which provides a remedy for every wrong, provides a remedy for
violation of a constitutional right.  See Sheltra v. Smith, 136 Vt. 472, 475,
392 A.2d 431, 433 (1978) (the law will remedy wrongs that merit redress).  To
deprive individuals of a means by which to vindicate their constitutional
rights would negate the will of the people in ratifying the constitution, and
neither this Court nor the Legislature has the power to do so. 

     In determining whether a constitutional provision is self-executing,
most jurisdictions have measured their constitutions against the standard
adopted by the United States Supreme Court in Davis v. Burke, 179 U.S. 399
(1900): 

     "A constitutional provision may be said to be self-executing if it
     supplies a sufficient rule by means of which the right given may
     be enjoyed and protected, . . . and it is not self-executing when it
     merely indicates principles, without laying down rules by means
     of which those principles may be given the force of law." In short,
     if complete in itself, it executes itself."
                      . . . .

In short, if complete in itself, it executes itself.

Id. at 403 (quoting Cooley, Constitutional Limitations 99 (1883)); see, e.g.,
Clausing v. San Francisco Unified School Dist., 271 Cal. Rptr. 72, 78 (Cal.
Ct. App. 1990); State v. Sanabria, 474 A.2d 760, 771 (Conn. 1984); Gray v.
Bryant, 125 So. 2d 846, 851  (Fla. 1960). 

     Determining whether a provision supplies a sufficient rule entails
application of certain relevant criteria, no one of which is dispositive. 
First, a self-executing provision should do more than express only general
principles; it may describe the right in detail, including the means for its
enjoyment and protection.  See Convention Center Referendum Comm. v. Board of
Elections and Ethics, 399 A.2d 550, 552 (D.C. Ct. App. 1979).  Ordinarily a
self-executing provision does not contain a directive to the legislature for
further action.  Id.  The legislative history may be particularly informative
as to the provision's intended operation.  Id.  Finally, 

 

a decision for or against self-execution must harmonize with the scheme of
rights established in the constitution as a whole. 

     Applying these general principles, we first consider whether Chapter I,
Article 1 specifies a right enforceable against the state.  Article 1
provides, in part: 

        That all men are born equally free and independent, and have
     certain natural, inherent, and unalienable rights, amongst which
     are the enjoying and defending life and liberty, acquiring,
     possessing and protecting property, and pursuing and obtaining
     happiness and safety.

Vt. Const. ch. I, art. 1.  Applying the first of the above criteria, it is
evident that this provision expresses fundamental, general principles,
principles that infuse the rights of individuals and powers of government
specified elsewhere in the constitution.  See Benning v. State, ___ Vt. ___,
___, 641 A.2d 757, 759 (1994).  Although the text includes the right to
possess and protect property, that right is listed "amongst" the "certain
natural, inherent, and unalienable rights." This suggests that Article 1 does
not establish an enforceable property right, but merely lists it to flesh out
philosophical truisms.  See State v. Carruth, 85 Vt. 271, 273-74, 81 A. 922,
923 (1911) (Article 1 is not "so certain and definite in character as to form
rules for judicial decision"); Lincoln v. Smith, 27 Vt. 328, 339-40 (1855). 

     Moreover, recognizing a property right under Article 1 would lead to
absurd consequences.  The "right" to pursue and obtain happiness, couched in
the same terms without qualification, follows plaintiff's claimed right to
preserve and protect property.  As such, the text of Article 1 prevents us
from drawing a meaningful distinction between the two, and we see no basis
for simply disregarding a portion of the constitutional text.  To do so would
constitute a legislative act not within the judicial power.  If we were to
find Article 1 self-executing, it 

 

would establish a "right" to call the state to task for infringing the right
to pursue happiness, which makes no sense within a traditional conception of
ordered liberty.  See Benning, ___ Vt. at ___, 641 A.2d  at 760. 

     Article 1 also makes no mention of a private plaintiff's recourse for
state interference with property rights.  The lack of a specific remedy
should not itself defeat the contention that a constitutional provision is
self-executing.  As noted above, the law will provide a remedy for any right
amenable to legal enforcement.  Nevertheless, the absence of a specified
remedy is evidence that Article 1 was not intended to be self-executing. 

     Turning to the second criterion, Article 1 contains no directive that
the state legislature act to implement the asserted property right. 
Ordinarily, this would weigh in favor of a conclusion that the provision is
self-executing.  But the lack of a mandate is not surprising in light of the
general nature of the rights described, and should not weigh heavily in favor
of a conclusion that Article 1 is self executing, especially given the
specific protections for property interests found in Article 2, with which
Article 1 is philosophically consistent. 

     The third criterion calls for examination of legislative history for
guidance as to the intended effect of Article 1.  Unfortunately, no record
exists of any discussion or debate over the adoption of the Vermont
Constitution.  See J. Shaeffer, A Comparison of the First Constitutions of
Vermont and Pennsylvania, in In a State of Nature:  Readings in Vermont
History 54, 58 (Muller & Hand eds. 1982).  We noted in Benning that Article 1
was characteristic of constitutions of New England states which are
"`basically philosophical documents designed first and foremost to set a
direction for civil society and to express and institutionalize a theory of
republican government.'"  Benning, ___ Vt. at ___, 641 A.2d  at 759 

 

(quoting Elazar, The Principles and Traditions Underlying State
Constitutions, 12 Publius: The Journal of Federalism 18 (1982), in State
Constitutional Law: Cases & Materials 30, 31 (1988)). Thus, to the extent
drafting history exists, it does not support plaintiff's position. 

     Finally, we examine Article 1 in the context of the constitution as a
whole to gauge its intended effect.  The conclusion that the provision is not
self-executing, and hence cannot serve as the basis for a cause of action,
would not leave someone in plaintiff's position without recourse for State
interference with property rights.  Other more specific provisions provide
the protections where the drafters found them necessary.  At best, Article 1
is a restatement of the general requirement of due process of law.  See
Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 219, 105 A.2d 271, 279-80
(1954).  We have held, however, that Article 4 is the general analog to
federal due process protections.  See Levinsky, 151 Vt. at 197, 559 A.2d  at
1086.  In addition to due process protections, a private individual asserting
a taking of property by the state has recourse in the mandatory compensation
provisions of Article 2.  Recognition of an enforceable right to preserve and
protect property under Article 1 would, in many situations, render the
guarantees found in Articles 2 and 4 redundant or superfluous.  Thus, a cause
of action under Article 1 is unnecessary to protect property interests.   For
the foregoing reasons, we conclude that Article 1 is not self-executing. 
Alone, it does not provide rights to individuals that may be vindicated in a
judicial action.  The trial court properly dismissed plaintiff's claim for
wrongful deprivation of property under Article 1. 

     We have a different view, however, of plaintiff's claim under Article 13
for the alleged State infringement of her right to freedom of speech. 
Article 13 states: 

        That the people have a right to freedom of speech, and of
     writing and publishing their sentiments, concerning the transactions

 

     of government, and therefore the freedom of the press ought not
     to be restrained.

Vt. Const. ch. I, art. 13.

     Article 13 is largely undeveloped in our cases.  The few decisions that
mention it suggest its reach is coextensive with the First Amendment to the
United States Constitution.  See, e.g., Blouin v. Anton, 139 Vt. 618, 622,
431 A.2d 489, 491 (1981).  The one possible exception  In re Morrissey, 149
Vt. 1, 18-19, 538 A.2d 678, 689 (1987), where a discharged state employee
claimed that his termination was in retaliation for protected speech and
argued that Article 13 gave greater protections than the First Amendment in
such cases because the Vermont provision focuses on speech "concerning the
transactions of government."  Following an Alaska decision, Wickwire v.
State, 725 P.2d 695, 703 (Alaska 1986), we reserved judgment whether this
language would give greater protection in some matters of public concern,
concluding that the Article did not prevent the employee's termination in
that case. 

     Our limited experience with Article 13 does not inhibit us from finding
it to be self- executing.  First, in contrast to Article 1, it unequivocally
expresses more than general principles alone.  It sets forth a single,
specific right of the people to make themselves heard, a fundamental
characteristic of democratic government. 

     Since Article 13 establishes a specific free speech right, the absence
of a legislative directive supports a conclusion that the provision is
self-executing.  Indeed, it would make little sense to have the right to

 

speak out on government matters depend on legislative enactment, considering
the fundamental nature of citizen input in our republican form of government.

     Finally, recognizing a self-executing right to free speech and to seek
redress for its infringement comports with the general constitutional scheme.
 Article 3 does imply a right to expression in religious matters, but the
right necessarily is limited.  See Vt. Const. ch. I, art. 3.  Nowhere else in
the Chapter I Declaration of Rights can a general right to comment on the
conduct of government be found.  Article 13 creates a specific right to free
speech that is crucial to the operation of government and vital to the
effectuation of other enumerated rights.  We hold that the provision is
self-executing, and that it may serve as the basis for a private cause of
action against the state. 

                                B.

     Our decision that Chapter I, Article 13 is self-executing, and that it
supports an action against the State of Vermont, gets plaintiff over only one
of two hurdles necessary to avoid a motion to dismiss for failure to state a
claim on which relief can be granted. The fact that the constitutional
provision is self-executing means only that the rights contained therein do
not need further legislative action to become operative.  It does not
necessarily mean that monetary damages is the proper remedy for a violation. 
See  Rockhouse Mountain Property Owners Ass'n., 503 A.2d  at 1388.  For
plaintiff to prevail, we must find that Article 13 supports an action for
damages. 

     In arguing that damages are available for breach of a duty imposed by
the Vermont Constitution, plaintiff relies primarily on the United States
Supreme Court decision in Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971).  In Bivens, the Court held that a federal agent acting under color of
his authority could be sued for damages for violating plaintiff's Fourth
Amendment rights to be free from unreasonable searches and seizures.  Id. at
389.  The decision is significant because Congress has provided no statutory
remedy for such a violation, so the Court held that the Fourth Amendment
itself supported the remedy. 

 

     In support of its holding, the Court found that "damages have been
regarded as the ordinary remedy for an invasion of personal interests in
liberty," id. at 395, and that the federal courts may ordinarily use any
available remedy in enforcing federal statutory rights.  Id. at 396. It also
noted two possible exceptions to its general holding, but found neither
applicable: (1) the presence of "special factors counseling hesitation in the
absence of affirmative action by Congress," id.; (2) the presence of an
"explicit congressional declaration" that plaintiff could not recover damages
"but must instead be remitted to another remedy, equally effective in the
view of Congress."  Id. at 397. 

     Later decisions applied the Bivens rationale to a suit to obtain a
remedy for violation of the Fifth Amendment's equal protection guarantee,
Davis v. Passman, 442 U.S. 228, 245-48 (1979), and to a prisoner's suit for
relief because of an asserted violation of the Eighth Amendment's
proscription against cruel and unusual punishment.  Carlson v. Green, 446 U.S. 14, 19-23 (1980).  In Carlson, the Court held that the availability of
damages from the United States government under the Federal Tort Claims Act
did not prevent a suit directly on the Eighth Amendment, in part because the
constitutional tort suit is against the individual federal agents who
violated plaintiff's constitutional rights.  Id. at 21.  The Court reasoned
that "[b]ecause the Bivens remedy is recoverable against individuals, it is a
more effective deterrent than the FTCA remedy against the United States." 
Id. 

     The remaining cases in the Bivens line are particularly significant
because they deal with cases more similar to this one, and they more fully
develop the exceptions to the availability of the damages remedy.  In Bush v.
Lucas, 462 U.S. 367 (1983), the plaintiff was fired from an engineering job
at a federal installation, in part for making critical comments to the media
about 

 

his superiors.  Although the plaintiff was eventually reinstated in the
appeals process, with backpay, he brought a Bivens action alleging violations
of his First Amendment rights. Although the Court found that Congress had not
expressly denied petitioner a Bivens remedy or established an equally
effective substitute, it held that no Bivens action was maintainable.  Id. at
390.  After reviewing the history of the development of personnel rights and
remedies in the federal system, the Court summarized the issue: 
     
     The question is not what remedy the court should provide for a
     wrong that would otherwise go unredressed.  It is whether an
     elaborate remedial system that has been constructed step-by-step,
     with careful attention to conflicting policy considerations, should
     be augmented by the creation of a new judicial remedy for the
     constitutional violation at issue.  The question obviously cannot be
     answered simply by noting that existing remedies do not provide
     complete relief for the plaintiff.  The policy judgment should be
     informed by a thorough understanding of the existing regulatory
     structure and the respective costs and benefits that would result
     from the addition of another remedy for violations of employees'
     First Amendment rights.

Id. at 388.  Finding that the prospect of damages liability would deter
employers from imposing discipline, the Court concluded that the Congress was
in a better position to weigh the competing considerations and determine
whether a damages remedy was appropriate.  See id. at 389. 

     The themes of Bush were further developed in Schweiker v. Chilicky, 487 U.S. 412 (1988), where former social security disability recipients sought
money damages against program administrators, claiming that an eligibility
reevaluation program that resulted in the termination of their benefits was
administered in a way that denied them due process.  They alleged the use of
various procedures, including termination quotas, intended to deny benefits
to eligible persons.  Their benefits were restored in the appeal process, but
they sought damages for emotional distress and loss of necessities of life. 

 

     The Court explained that the exception to Bivens liability where there
are "special factors counseling hesitation" included "an appropriate judicial
deference to indications that congressional inaction has not been
inadvertent."  Id. at 423.  After analyzing the administrative remedies
available to recipients, the Court found that the case was indistinguishable
from Bush. The Court was particularly struck by the fact that Congress was
aware of and agreed with the plaintiffs' claims but did not create the remedy
they sought: 
     
     We agree that suffering months of delay in receiving the income
     on which one has depended for the very necessities of life cannot
     be fully remedied by the "belated restoration of back benefits."
     . . .  Congress, however, has addressed the problems created by
     the state agencies' wrongful termination of disability benefits.
     Whether or not we believe that its response was the best response,
     Congress is the body charged with making the inevitable
     compromises required in the design of a massive and complex
     welfare benefits program. . . .  Congress has discharged that
     responsibility to the extent that it affects the case before us, and
     we see no legal basis that would allow us to revise its decision.

Id. at 429 (citation omitted).

     Bush and Chilicky represent some retrenchment from at least the
rationale of Bivens. The Court apparently abandoned its requirement of an
"equally effective alternative remedy" in order to obviate the need for a
damages remedy.  Indeed, the "special factors counseling hesitation" now
focus on alternative remedies without regard to the strictures of Carlson. 
The Court is far more likely to defer to Congress in fashioning a remedy. 
See generally Nichol, Bivens, Chilicky, and Constitutional Damages Claims, 75
Va. L. Rev. 1117 (1989); Brown, Letting Statutory Tails Wag Constitutional
Dogs -- Have the Bivens Dissenters Prevailed?, 64 Ind. L.J. 263 (1989). 

     We have not heretofore decided whether a Bivens damage remedy is
available under the 

 

Vermont Constitution.  See Doria v. University of Vermont, 156 Vt. 114, 119,
589 A.2d 317, 320 (1991); Shields I, 155 Vt. at 148, 582 A.2d  at 158.  Our
constitutional precedents are unhelpful.  We have recognized a private right
of action for damages caused by a government taking of private property in
violation of Chapter I, Article 2, see Winn v. Village of Rutland, 52 Vt.
481, 494-95 (1880), but the remedy is specifically authorized by the
constitutional text. Our decision that no private right of action is
available to enforce Article 6, Welch v. Seery, 138 Vt. 126, 128, 411 A.2d 1351, 1352 (1980), is actually a holding that the article is not self-
executing.  Similarly, our decision that Article 4 does not afford
"additional private tort remedies" for violation of the open meeting law,
Rowe v. Brown, 157 Vt. 373, 379, 599 A.2d 333, 337 (1991), goes to the
substantive content of that article. 

     Although the Bivens decision provides little rationale beyond the
common-law preference for the award of damages as a remedy, it has generally
been considered a specific application of the general power of the judiciary
to imply remedies for violations of specific legal standards. The general
principle is set out in Restatement (Second) of Torts  874A (1979), which
provides: 
     
     When a legislative provision protects a class of persons by
     proscribing or requiring certain conduct but does not provide a
     civil remedy for the violation, the court may, if it determines that
     the remedy is appropriate in furtherance of the purpose of the
     legislation and needed to assure the effectiveness of the provision,
     accord to an injured member of the class a right of action, using
     a suitable tort action or a new cause of action analogous to an
     existing tort action.

As used in this section, the term "legislative provision" includes a
constitutional provision.  Id. comment a.  The principle is well ingrained in
our law.  See School Dist. No. 1 v. Kittridge, 27 Vt. 650, 653-54 (1855) ("It
is a common principle, that, when a duty is imposed by law, an 

 

action can be sustained by those to whom that duty is owing, for such damages
as have been sustained by any neglect in its performance.") 

     We have been careful in applying this principle in areas where the
legislature has acted to create some remedy, looking for "legislative intent,
explicit or implicit, to create a private tort remedy."  Rowe v. Brown, 157
Vt. at 378, 599 A.2d  at 336; see also Wilder v. Aetna Life & Cas. Ins. Co.,
140 Vt. 16, 19, 433 A.2d 309, 310 (1981) (no private right of action for
violation of Insurance Trade Practices Act where Legislature provided public
administrative sanctions).  In Cronin v. State, 148 Vt. 252, 254, 531 A.2d 929, 930 (1987), a state employee sued the state and two other state
employees for damages for violation of a regulation prohibiting disclosure of
confidential employment information.  In response to an inquiry by
plaintiff's brother-in-law, the employees disclosed that there was an office
rumor that plaintiff was having an affair with a co-worker.  We declined to
recognize a private right of action for damages because the scope of the
regulation suggested it was not promulgated for the special benefit of
employees, and the Legislature had created an administrative scheme for
enforcing state personnel regulations.  Id. at 255, 531 A.2d  at 931.  We
noted that the statutory scheme "contemplates that the decision with respect
to the manner in which violations of personnel regulations should be remedied
should be within the discretion of the Commissioner of Personnel.  A private
right of action would potentially interfere with the exercise of this
discretion."  Id. 

     We have been cautious in creating a private damage remedy even where the
Legislature has provided no alternative civil remedy.  In O'Brien v. Island
Corp., 157 Vt. 135, 140-41, 596 A.2d 1295, 1298 (1991), we declined to create
a tort remedy for violation of a boiler safety 

 

statute.  In specifically considering  874A of the Restatement, we
reasoned: 
     
     There is serious doubt whether the Legislature intended that a
     civil remedy exist for violation of  241. . . .  While this Court
     may determine that such a remedy is appropriate in furtherance of
     the legislative purpose, Restatement (Second) of Torts  874A
     (1979), it should be hesitant to do so when it is clear that the
     Legislature could have done so, knew it could do so, and did not
     do so.

Id. at 140 n.3, 596 A.2d  at 1298 n.3; cf. Robitaille v. Rubin, 159 Vt. 152,
154, 615 A.2d 1025, 1025-26 (1992) (failure of seller of land to show buyer
Act 250 permit, as required by permit, not a defense to breach of the sales
contract, where Legislature did not create civil remedy for breach of permit
condition). 

     We are also influenced by the decisions from other states that have
addressed this issue. In the years immediately following the Bivens decision,
a number of courts adopted its holding for state constitutional violations
with virtually no reasoning.  See generally Friesen, Recovering Damages for
State Bills of Rights Claims, 63 Tex. L. Rev. 1269, 1276-79 (1985)
(collecting cases).  An example of these cases is Gay Law Students Ass'n v.
Pacific Tel. & Tel. Co.,  595 P.2d 592, 602, 156 Cal. Rptr. 14, 24 (1979),
where gay individuals employed by, or denied employment by, defendant sought
damages because of discriminatory treatment based on their sexual orientation
in violation of a provision of the California Constitution.  Citing Bivens,
but without any discussion of the remedy question, the California Supreme
Court held that plaintiffs' complaint stated a cause of action. 

     Some decisions have refused to fashion a monetary damages remedy even
for a constitutional violation similar to that in Bivens, holding that only
the legislature can create this remedy.  See, e.g., Hunter v. City of Eugene,
787 P.2d 881, 884 (Or. 1990).  The more recent 

 

decisions, particularly those issued after Bush and Chilicky, tend to be more
cautious about accepting Bivens, and adopt part or all of the reasoning of
Bush and Chilicky. 

     Where damages must be recognized to give a plaintiff some remedy, the
Bivens rationale is most likely to be followed.  See Bivens, 403 U.S.  at 410
(Harlan, J., concurring) ("For people in Bivens' shoes, it is damages or
nothing.")  An example of this kind of case is Moresi v. Dep't of Widlife &
Fisheries, 567 So. 2d 1081, 1093 (La. 1990), where the Louisiana Supreme
Court recognized a private right of action for damages for breach of the
search and seizure section of the Louisiana Constitution.  The plaintiffs
were duck hunters whose boat was searched by game agents and who were
detained for determination whether they had violated game laws.  In accepting
the Bivens damage remedy, the court stated that "[r]ecovery of damages is the
only realistic remedy for a person deprived of his right to be free from
unreasonable searches or seizures."  Id. 

     Where, however, other remedies exist as part of a statutory scheme
fashioned by the legislature, the decisions show reluctance to add a damages
remedy.  We visit some of these decisions to examine their reasoning. 

     In Kelley Property Dev., Inc. v. Town of Lebanon, 627 A.2d 909, 919-24
(Conn. 1993), the Connecticut Supreme Court considered whether a developer
who alleged he was denied due process in the processing of his housing
development application could sue the town, the town planning and zoning
commission, and the members of the commission for damages under the state
constitution.  The court evaluated the Bivens line of cases and concluded
that under them the developer had to show he "would lack any remedy for
alleged constitutional injuries if a damages remedy were not created."  Id.
at 921.  For three itemized reasons, it decided to follow 

 

a similar policy. First, it concluded the administrative remedies available
to a zoning applicant, when combined with traditional tort remedies, "are
particularly appropriate in light of the fact that the [town] officials whose
conduct allegedly violated [plaintiff's] state constitutional rights are not
professionals but are laypersons with little or no technical expertise."  Id.
at 923. Second, the threat of liability was likely to "have a chilling effect
on the zeal with which zoning commissions and their members undertake their
responsibilities."  Id. at 924.  Third, the availability of the Bivens remedy
"would encourage its pursuit by any disappointed zoning applicant whenever a
zoning agency denies the sought after permit or application."  Id.  The
holding of Kelley is that "as a general matter, we should not construe our
state constitution to provide a basis for the recognition of a private
damages action for injuries for which the legislature has provided a
reasonably adequate statutory remedy."  Id. at 922. 

     Although the decisions are less detailed, virtually all of the cases
have followed the Kelley rationale where the plaintiff has an administrative
or common-law remedy to obtain the governmental benefit or license sought or
the restoration of employment or the like.  For example, a damages claim by a
low bidder for a public construction, alleging a denial of due process in the
rejection of the bid, was dismissed because of the availability of a contract
remedy and the fear of "endless lawsuits by disappointed bidders."  King v.
Alaska State Housing Authority, 633 P.2d 256, 260-61 (Alaska 1981).  In
Provens v. Stark County Bd. of Mental Retardation, 594 N.E.2d 959, 965-66
(Ohio 1992), the Ohio Supreme Court dismissed a damages claim based on the
Ohio constitution by a public employee that her employer had discriminated
against her in retaliation for her public criticism of the agency's
operations.  It found that the plaintiff's rights were protected by the Ohio
Civil Rights Commission and 

 

collective bargaining arbitration so that she had "sufficiently fair and
comprehensive remedies," id. at 965, and deferred to the legislature in
designing the appropriate remedies. Id.;  See also Rockhouse Mountain
Property Owners Ass'n, 503 A.2d  at 1388-89 (damages inappropriate remedy for
equal protection violation in refusal to lay out road because appeal of
refusal is adequate remedy); Corum v. University of North Carolina, 413 S.E.2d 276, 289, 291 (N.C. 1992) (suit by discharged faculty member, alleging
retaliation for free speech protected by state constitution, and seeking
reinstatement and damages, can go forward "in the absence of an adequate
state remedy" and where no "established claims and remedies . . . provide an
alternative to the extraordinary exercise of its inherent constitutional
power"). 

     We conclude that the approach adopted by the Connecticut Supreme Court
in Kelley Property Development, and used at least in part by the foregoing
decisions, best reflects our existing law on enforcement statutory rights by
implied actions for damages.  It is also consistent with the Bivens line of
cases as they have developed in the United States Supreme Court.  We agree
that it may be appropriate to imply a monetary damages remedy to enforce
constitutional rights where the Legislature has fashioned no other adequate
remedial scheme.  Where the Legislature has provided a remedy, although it
may not be as effective for the plaintiff as money damages, we will
ordinarily defer to the statutory remedy and refuse to supplement it. 


                               III.

     With the legal principles in mind, we examine the specific claim
plaintiff makes and the 

 

availability of other remedies.  Based on the earlier opinion in this case,
the key allegations are: 

     (1) plaintiff was advised that the failure of her septic tank would
     be grounds for revocation of her day care facility license, but she
     could run a registered family day care home;

     (2) in reliance on this advice, plaintiff applied to be a registered
     family day care home and did not disclose the septic tank failure
     on her application;
     
     (3) one of the SRS workers then came to plaintiff's home and told
     her that because of her failure to disclose the septic problem, her
     application would be denied, her facility license would be revoked
     effective three days later, she could not obtain a hearing on the
     denial, if there were a hearing, she could not operate pending its
     outcome, and if she continued to pursue her application, she would
     be required to put in an expensive mound system;
     (4) as a result of the worker's statement, plaintiff sent in her
     license to SRS on May 21 or 22, 1984, effective May 25, to avoid
     having to install a mound system;
     
     (5) before the license was received by SRS, the Director of the
     Division of Licensing of SRS sent a notice revoking plaintiff's
     facility license, effective June 24, 1984, and denying registration
     as a family day care home.

According to plaintiff's complaint, all these actions were taken to retaliate
against her for publicly and successfully challenging SRS policy on the use
of corporal punishment in day care facilities.  Thus, plaintiff alleges that
the revocation of her license to run a day care facility, and the denial of
registration as a family day care home, were done to punish her for
exercising her freedom of speech protected by Chapter I, Article 13. 

     At the time the events in the complaint occurred, plaintiff had a right
to appeal both the revocation and the application denial to the Human
Services Board.  See 3 V.S.A.  3091(a). The revocation could become
effective only "after hearing" although immediate suspension was possible in
circumstances "which immediately imperil the health, safety or well-being of
persons in the care of the licensee."  33 V.S.A.  306(b)(3).  In 1987, the
United States District Court ruled that the appeal process did not comport
with due process of law in revocation cases 

 

because no prerevocation hearing was available within SRS and the Human
Services Board could not review the sanction chosen by SRS.  Gour v. Morse,
652 F. Supp. 1166, 1171 (D. Vt. 1987); see Huntington v. Department of Social
and Rehabilitation Serv., 139 Vt. 416, 417-18, 430 A.2d 460, 462 (1981)
(disagreement with SRS sanction not grounds for reversal by Human Services
Board as long as SRS decision is in compliance with applicable law). 
Thereafter, SRS modified its regulations to provide a prerevocation hearing
within SRS.  See, e.g., Vermont Dep't of Social and Rehabilitation Serv.,
Children's Day Care Licensing Regulations for School Age Care in 4 Code of
Vermont Rules 13162001-037 (Apr. 1993). 

     From her complaint, it is clear that the injury for which she wants
damages is the loss of the property interest in her family day care home
license.  Thus, she alleges that had she been given a fair hearing, she could
have satisfactorily answered all of the matters in the letter revoking her
license and denying her application. 

     Plaintiff never sought restoration of her facility license either by
administrative appeal to the Human Services Board or in this action.  There
is no indication that she ever sought to operate a day care facility or
family day care home again. 

     Although plaintiff seeks to vindicate her right to free speech, the
remedy sought seeks to make her whole because of her inability to operate a
child care facility or registered child care home.  This is exactly the
injury that the remedies provided by the Legislature seek to avoid by giving
applicants or licensees an opportunity to contest adverse decisions.  We see
no reason why her retaliation claim could not have been adjudicated by the
Human Services Board.  Cf. In re Morrissey, 149 Vt. at 14-19, 538 A.2d  at
686-89 (similar retaliation claim in employment context adjudicated by
Vermont Labor Relations Board). 

 

     We are not persuaded that the statutory remedies are inadequate because
plaintiff was "tricked" into foregoing them.  Even plaintiff's complaint
indicates that the advice she received on the availability of an
administrative remedy was equivocal, and it further indicates that she had
used administrative remedies successfully in the past.  To the extent she may
have been unfairly denied access to administrative remedies, the courts are
open to ensure she received due process of law.  See Gour v. Morse, 652 F. Supp.  at 1171. 

     On the other hand, we are persuaded that allowing monetary damages in
cases like this would threaten to eviscerate the administrative scheme the
Legislature has adopted.  Rather than diligently attempting to avoid the
injury by an immediate attempt to remain open, this plaintiff has allowed
damages to mount through the passage of time with no opportunity for
defendants to minimize the injury.  As the Connecticut court found, a damages
remedy is bound to have a chilling effect on state officials who are required
to protect the health and safety of children in day care, while treating
operators fairly.  To the extent that the fear of damage liability, whether
incurred by individual employees or the state agency tips the balance of
protection in favor of operators and against children, the results may be
unacceptable. 

     We conclude that plaintiff had an adequate remedy for the loss of her
day care facility license and denial of her registration application and,
accordingly, she has no suit for damages for the same injury. 

                               IV.

     For the foregoing reasons, we conclude that the superior court properly
dismissed plaintiff's complaint.  Because of our disposition of the merits of
plaintiff's complaint, we do not need to decide whether plaintiff's claims
are also barred by the state's sovereign immunity. 

 

     Affirmed. 

                              FOR THE COURT:



                              _______________________________________
                              Associate  Justice



-----------------------------------------------------------------------------
                               Footnotes


FN1.   Plaintiff has relied primarily on the reasoning of Bivens v. Six Unknown
 Named Agents, 403 U.S. 388 (1971), which allowed a suit for damages for a
 violation of the Fourth Amendment.  Bivens suits may be maintained only
 against individuals and not against the United States or its agencies.  See
 Federal Deposit Ins. Corp. v. Meyer, 114 S. Ct. 996, 1005-06 (1993).  One
 state court, however, has adopted liability reasoning from Bivens but allowed
 a suit against the state or its employees in their official capacities,
 holding that sovereign immunity is not a defense.  See Corum v. University of
 North Carolina, 413 S.E.2d 276, 291 (N.C. 1992). Another court relying on
 Bivens for its liability theory has rejected the individual capacity vs.
 official capacity distinction.  See Ritchie v. Donnelly, 597 A.2d 432, 446
 (Md. 1991) ("official/individual dichotomy . . . does not apply to state
 constitutional violations"); Widgeon v. Eastern Shore Hosp. Ctr., 479 A.2d 921, 927-28 (Md. 1984) (analyzing and relying on Bivens).   In view of our
 disposition that there can be no damages liability whenever defendants are
 sued in their individual or official capacities, we do not reach whether the
 capacity of the defendants matters or whether sovereign immunity is available
 as a defense.