Heleba v. Allbee

HELEBA_V_ALLBEE.90-054; 160 Vt. 283; 628 A.2d 1237


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. 90-054


Charles W. Heleba, John Hibbard,             Supreme Court
Harold L. Mills, Philip Pinkowski,
Sr., Lowell W. Seward, John L.               On Appeal from
Williams and R.H. Williams                   Rutland Superior Court

     v.

Ronald Allbee, Commissioner of               April Term, 1991
Agriculture; State of Vermont


Frank G. Mahady, J.

Peter H. Banse of Banse & McCoy, Manchester Center, for plaintiffs-
   appellants

Jeffrey L. Amestoy, Attorney General, William E. Griffin, Chief Assistant
   Attorney General, and William H. Rice, Assistant Attorney General,
   Montpelier, for defendants-appellees


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



     GIBSON, J.   Plaintiffs challenge the constitutionality of the Dairy
Industry Income Stabilization Program (DIISP), 6 V.S.A {{ 2991-2998, con-
tending that (1) there is no rational basis for the program's exclusion of
farmers who are not members of a cooperative, and (2) such discrimination
violates their constitutionally protected freedom of association.
     The DIISP subsidizes dairy farmers who meet certain eligibility
requirements, including membership in a regional marketing cooperative.
Plaintiffs are dairy farmers who do not belong to a cooperative.  They
initiated this suit under 42 U.S.C. { 1983 against defendants Ronald Allbee,
Commissioner of Agriculture, and Emory Hebard, State Treasurer, in their
official and individual capacities.
     The trial court granted defendants' motion for summary judgment and
dismissed the suit in its entirety.  It ruled that, insofar as defendants
were sued in their individual capacities, they were entitled to qualified
immunity from the { 1983 claim and absolute immunity from the claim grounded
on the Vermont Constitution.  With respect to the claims against defendants
in their official capacities, the court concluded that the State of Vermont
was the real party in interest and was entitled to sovereign immunity.  On
appeal, plaintiffs contend that (1) the State has waived its sovereign
immunity, and (2) defendants are not entitled to qualified immunity. (FN1) We
affirm with respect to defendants in their individual capacities but reverse
and remand for trial against defendants in their official capacities.
                                    I.
     Plaintiffs argue that the State waived its sovereign immunity when the
Legislature reserved a portion of the DIISP appropriation for payment of
plaintiffs' claims, should their suit be successful.  Defendants argue that
the waiver, if made, was revoked when the State subsequently spent the money
for other purposes.  Both parties mischaracterize the issue.
     The elements of, and the defenses to, a { 1983 action are defined by
federal law.  Howlett v. Rose, 110 S. Ct. 2430, 2442 (1990).   A state may
not create a cause of action under { 1983 against any entity that Congress
has not subjected to liability.  Id. at 2442-43.  Thus, if a state is not a
"person" as that term is used in { 1983, it cannot be subjected to suit,
whether it waives sovereign immunity or not.  See Will v. Michigan Dep't of
State Police, 491 U.S. 58, 85 (1989) (Brennan, J., dissenting) ("If States
are not 'persons' within the meaning of { 1983, then they may not be sued
under that statute regardless of whether they have consented to suit.").
     The United States Supreme Court has ruled that neither a state nor a
state official sued in an official capacity for damages is a "person" for
purposes of a { 1983 action.  Will, 491 U.S.  at 71.  Thus, when a state
official is sued solely as an official, money damages and other retroactive
relief are normally unavailable.  See Shields v. Gerhart, 155 Vt. 141, 152,
582 A.2d 153, 159 (1990) (dismissing { 1983 action for damages brought
against state employees in their official capacities).
     Nevertheless, the Supreme Court also has held that a state official
sued in his or her official capacity for injunctive relief "would be a
person under { 1983 because 'official-capacity actions for prospective
relief are not treated as actions against the State.'"  Will, 491 U.S.  at 71
n.10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)) (emphasis
added).  Moreover, even if a suit for prospective relief implicated pro-
spective expenditures of state funds, that would not be grounds for
dismissal.  See id.; Kentucky v. Graham, 473 U.S.  at 169 n.18 ("Monetary
relief that is 'ancillary' to injunctive relief also is not barred by the
Eleventh Amendment"); Milliken v. Bradley, 433 U.S. 267, 289, 293-95 (1977)
(state ordered to pay $5.8 million to fund a desegregation decree); Edelman
v. Jordan, 415 U.S. 651, 667-68 (1974) (prospective court orders mandating
officials to conduct themselves in certain ways are permissible even if they
involve payments from state treasuries).
     Thus, plaintiffs' right to recover prospective monetary relief under
the DIISP does not depend on whether the State has set aside and maintained
a contingency fund for this purpose.  If the DIISP were still operating and
if plaintiffs satisfactorily established their right to be included in it,
they would be entitled to injunctive and declaratory relief -- assuming
success on the merits herein -- that would ensure their future
participation.  The DIISP expired by its own terms, however, on April 30,
1989, see 1987, No. 200 (Adj. Sess.), { 62, and the Legislature, on June 26,
1991, repealed any remaining vestige of the program.  See 1991, No. 79, { 7.
Thus, the question becomes whether plaintiffs' claims are now moot.   
     Ordinarily, "[c]laims for damages or other monetary relief
automatically avoid mootness."  C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure { 3533.3, at 262 (1984); see City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 478 n.1 (1989) (expiration of ordinance
requiring those who have contracts with city to subcontract 30% of value of
contract to minority businesses does not moot contract bidder's { 1983 claim
challenging constitutionality of the ordinance after its bid was refused for
failing to meet 30% requirement).  Here, a live controversy remains
concerning whether plaintiffs suffered monetary loss because of an illegal
application of the DIISP.
     The federal courts have developed an equitable doctrine to allow
funds from statutorily created programs to be paid to deserving plaintiffs
even after a program expires, as long as the lawsuit was instituted on or
before the expiration date.  West Virginia Ass'n of Community Health
Centers v. Heckler, 734 F.2d 1570, 1576-77 (D.C. Cir. 1984); State of
Connecticut v. Schweiker, 684 F.2d 979, 997 (D.C. Cir. 1982); Jacksonville
Port Authority v. Adams, 556 F.2d 52, 55-57 (D. C. Cir. 1977).  Equitable
relief is ordinarily limited to funds remaining after the program expires.
West Virginia, 734 F.2d  at 1577.
     Here, plaintiffs brought a timely suit, long before the DIISP expired.
In their complaint they sought a preliminary injunction; no hearing on the
matter was scheduled and plaintiffs thus lost their only opportunity for
timely relief.  In the federal cases, denial of such preliminary relief to
preserve a plaintiff's claim, has been found to be an abuse of discretion.
Jacksonville, 556 F.2d  at 58-59.  In the instant case, the Legislature
reserved a portion of DIISP funds for plaintiffs' claim -- apparently
securing relief if they prevailed -- but, after the budget year ended
without resolution of the lawsuit, dissolved the fund.  Under these facts,
plaintiffs' claim is not moot.
                                    II.
     With respect to the claim against defendants in their individual
capacities, plaintiffs contend that defendants are not entitled to qualified
immunity.  Qualified immunity attaches to public officials who (1) act
during the course of their employment and act, or reasonably believe they
act, within the scope of their authority; (2) act in good faith; and (3)
perform discretionary, as opposed to ministerial, acts.  Murray v. White,
155 Vt. 621, 627, 587 A.2d 975, 979-80 (1991).  Plaintiffs appear to concede
the first requirement, but argue that defendants did not act in good faith
and performed merely ministerial acts.  We conclude, however, that defend-
ants are entitled to qualified immunity.
                                    A.
     Plaintiffs argue that, as a matter of law, defendants were not acting
in good faith because they continued to reject plaintiffs' applications for
inclusion in the program after this lawsuit was initiated.  "Good faith
exists where an official's acts did not violate clearly established rights
of which the official reasonably should have known."  Murray v. White, 155
Vt. at 630, 587 A.2d  at 980 (footnote omitted).  Mere initiation of a law-
suit does not create a clearly established right.  See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (an official is not expected to
anticipate subsequent legal developments).  Whether an official protected by
qualified immunity may be held personally liable for allegedly unlawful
official actions will generally depend on the "'objective legal reasonable-
ness'" of the actions.  Anderson v. Creighton,  483 U.S. 635, 639 (1987)
(quoting Harlow, 457 U.S. at 819).  Thus, the test is an objective one,
requiring a determination of the objective reasonableness of an official's
conduct, as measured by reference to clearly established law.  Harlow, 457 U.S.  at 818.  Subjective good faith is thus ordinarily irrelevant.  Anderson
v. Creighton, 483 U.S.  at 641.  In the instant case, plaintiffs have not
shown that defendants violated any clearly established legal rights or that
the trial court erred in its determination that defendants acted in
objective good faith.
                                    B.
     We turn now to the more difficult issue of whether defendants should be
denied qualified immunity because their acts were merely "ministerial" in
nature. (FN2)
     Plaintiffs' argument is grounded upon Libercent v. Aldrich, 149 Vt. 76,
539 A.2d 981 (1987), where we defined "a discretionary duty as one requiring
the exercise of judgment in its performance, and a ministerial duty as one
where 'nothing is left to discretion -- a simple and definite duty, imposed
by law, and arising under conditions admitted or proved to exist.'"  Id. at
81, 539 A.2d  at 984 (quoting State v. Howard, 83 Vt. 6, 14, 74 A. 392, 395
(1909)).  Relying on these definitions, plaintiffs argue that the statutory
eligibility requirements leave no "discretion" to defendant Allbee.  If
individuals, such as plaintiffs, are not members of a regional marketing
cooperative, they are clearly not eligible for a DIISP subsidy under the
statute. (FN3) As for defendant Hebard, plaintiffs contend that he was required
to issue checks to individuals certified by defendant Allbee as qualifying
for the subsidy, but only to those individuals. (FN4) Thus, in plaintiffs' view,
defendant Hebard merely drew up, signed, and mailed checks to specified
payees.  In short, plaintiffs contend defendants should be denied qualified
immunity because each one merely executed a simple and definite ministerial
duty commanded by law.
     The established definitions for "discretionary duty" and "ministerial
duty" lend considerable force to plaintiffs' argument.  We reject their
argument, however, and recognize an exception to the general rule that only
officers performing discretionary duties are entitled to qualified
immunity.  We hold that officers who, in objective good faith, obey a
simple and definite legal command established by statute while acting, or
reasonably believing they are acting, within the scope of their employment
and authority, are qualifiedly immune from a suit that is grounded upon
conduct prescribed by that statute. (FN5) As explained below, affording quali-
fied immunity in these circumstances is consistent with generally accepted
tort principles and with the purpose of the doctrine.  See Owen v. City of
Independence, 445 U.S. 622, 638 (1980) (in determining immunity questions in
{ 1983 action, relevant factors are the scope of immunity at common law at
the time { 1983 was enacted and the purposes of { 1983).
     First, { 1983 actions are "to be read 'in harmony with general
principles of tort immunities and defenses rather than in derogation of
them.'"  Burns v. Reed, 111 S. Ct. 1934, 1938 (1991) (quoting Imbler v.
Pachtman, 424 U.S. 409, 418 (1976)).  While the precise contours of the
common law need not be slavishly followed, it is appropriate to look to the
common law and other history for guidance.  Id. at 1943.
     Such an exception is amply supported by established principles of tort
immunity law.  Both Prosser and Keeton on The Law of Torts (5th ed. 1984)
and F. Harper, F. James & O. Gray, The Law of Torts (2d ed. 1986) express
an exception to the ministerial-act rule for the officer who obeys a valid
court order or statute.  Prosser and Keeton, supra, { 132, at 1066 ("In
addition to whatever immunity is or is not available to the officer simply
because of official status, there is a privilege to obey the command of
judicial process fair on its face as well as the command of a valid
statute."); (FN6) Harper, James & Gray, supra, { 29.10, at 669 (no liability for
ministerial action where it is "justifiable as commanded by valid statute,
order, etc.").  Common law and Vermont precedent both similarly provide that
an officer is privileged to execute a court order valid on its face.  See
California v. Acevedo, 111 S. Ct. 1982, 1992 (1991) (Scalia, J., concurring)
(noting that absolute immunity existed at common law for officer who acted
pursuant to a proper warrant); Horton v. Chamberlin, 152 Vt. 351, 353, 566 A.2d 953, 954 (1989), Casselini v. Both, 77 Vt. 255, 256, 59 A. 833, 833
(1905); Gage v. Barnes, 11 Vt. 195, 196 (1839); Pierson v. Gale, 8 Vt. 509,
511 (1836).  Other courts have also indicated that immunity from personal
liability exists where the official obeys an apparently valid legal
command.  See United States v. Illinois Bell Tel. Co., 531 F.2d 809, 815
(7th Cir. 1976); District of Columbia v. Thompson, 570 A.2d 277, 293 (D.C.
App. 1990) (recognizing immunity for mandatory duties); (FN7) Elzey v. Archer,
500 N.E.2d 1253, 1256 (Ind. App. 1986) (arresting officer immune where
arrest warrant was legally defective but appeared valid on its face), cert.
denied, 484 U.S. 1008 (1988); see also Barr v. Matteo, 360 U.S. 564, 575
(1959)("same considerations which underlie the recognition of the privilege
as to acts done in connection with a mandatory duty apply with equal force
to discretionary acts").  Further, it would be incongruous for the officer
who competently executes a mandatory duty to be held liable while the
creator of the duty is absolutely immune.  See Valdez v. City of Denver, 878 F.2d 1285, 1289 (10th Cir. 1989).
     Second, such an exception serves the purposes of qualified immunity.
The doctrine strikes an accommodation between competing interests.  While
personal liability "may offer the only realistic avenue for vindication of
constitutional guarantees," Harlow, 457 U.S.  at 814, substantial social
costs are attendant, including the expense and distraction of the litigation
and deterrence from going into public service.  Id.; Levinsky v. Diamond,
151 Vt. 178, 199, 559 A.2d 1073, 1087 (1989), overruled on other grounds,
Muzzy v. State, 155 Vt. 279, 280 n.*, 583 A.2d 82, 83 n.* (1990).  "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."  Murray, 155 Vt. at 632, 587 A.2d  at 981.  "As the qualified
immunity defense has evolved, it provides ample protection to all but the
plainly incompetent or those who knowingly violate the law."  Malley v.
Briggs, 475 U.S. 335, 341 (1986).
     If executive officials who have acted in accordance with a simple and
definite statutory command can be sued personally, not only will the com-
petent be unprotected from litigation, but additionally, "we are indeed
likely to breed a race of do-nothing officials."  Harper, James, & Gray,
supra, { 29.10, at 678; see also Forrester v. White, 484 U.S. 219, 223
(1988) ("the threat of liability can create perverse incentives that operate
to inhibit officials in the proper performance of their duties") (emphasis
in original); Harlow v. Fitzgerald, 457 U.S.  at 814 ("there is the danger
that fear of being sued will 'dampen the ardor of all but the most resolute,
or most irresponsible [public officials], in the unflinching discharge of
their duties'") (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir.
1949), cert. denied, 339 U.S. 949 (1950)).  An official charged with imple-
menting an apparently valid statute that establishes a simple and definite
duty should not face the dilemma of shirking his or her duty or facing a
likely law suit.   As Justice Harlan explained in a slightly different
context:
          A policeman's lot is not so unhappy that he must choose
          between being charged with dereliction of duty if he
          does not arrest when he has probable cause, and being
          mulcted in damages if he does.  Although the matter is
          not entirely free from doubt, the same consideration
          would seem to require excusing him from liability for
          acting under a statute that he reasonably believed to be
          valid but was later held unconstitutional, on its face
          or as applied.
Pierson v. Ray, 386 U.S. 547, 555 (1967).  Pierson involved a suit against
police officers who arrested without a warrant certain ministers who had
entered a "whites only" bathroom and cafeteria.  The officers claimed that
they arrested the ministers to prevent violence.  The Court held that the
common-law defense of good faith and probable cause was available to the
officers in the { 1983 action.  Id. at 557.
     In the instant case, defendants, in the scope of their employment,
competently executed a simple and definite duty mandated by a statute that
violated none of plaintiffs' clearly established rights.  For this, plain-
tiffs sued them personally.  Exposure to personal liability in these cir-
cumstances tends to "detract from the rule of law instead of contributing to
it."  Forrester v. White, 484 U.S.  at 223.  Because affording defendants
qualified immunity is consistent with the doctrine's purposes and with
principles of tort immunity law, we affirm the trial court insofar as it
dismissed the suit against defendants in their individual capacities.
     Plaintiffs' claim against defendants in their official capacities is
reversed and remanded; the balance of the judgment is affirmed.


                                        FOR THE COURT:



                                        _________________________________
                                        Associate Justice



FN1.  Plaintiffs do not independently analyze their Vermont constitutional
claim, and we therefore do not address it.  See Shields v. Gerhart, 155 Vt.
141, 151, 582 A.2d 153, 159 (1990) (noting that it is an open question
whether a damages action can be grounded on violations of Vermont Constitu-
tion, Court declined to address defense of sovereign immunity to such claims
where it was not argued); State v. Gleason, 154 Vt. 205, 212, 576 A.2d 1246,
1250 (1990) (proponent bears burden of explaining how or why the Vermont
Constitution affords greater rights than the federal constitution).
Further, we note that 42 U.S.C. { 1983 does not provide a means to litigate
alleged violations of the Vermont Constitution.  See Williams v. State, 156
Vt. ___, ___, 589 A.2d 840, 843 (1990) ({ 1983 "provides a private remedy
for those alleging abridgement of federal rights") (emphasis added).

FN2.   The parties have not addressed the threshold question of whether
the common law's discretionary/ministerial distinction applies in the
context of a { 1983 action.  Without discussion, we assumed in Murray v.
White, 155 Vt. 621, 627, 587 A.2d 975, 978 (1991) that ministerial duties
are not entitled to qualified immunity.  Courts are split on this issue,
however, with some courts concluding the distinction does not apply to {
1983 actions.  Coleman v. Frantz, 754 F.2d 719, 728 (7th Cir. 1985); Withers
v. Levine, 615 F.2d 158, 163 (4th Cir.), cert. denied, 449 U.S. 849 (1980).
Other courts hold that it does apply.  Saul v. Larson, 847 F.2d 573, 576
(9th Cir. 1988); Jordan v. Sinsheimer, 403 Mass. 586, 589, 531 N.E.2d 574, 577 (1988).
    The United States Supreme Court has not definitively resolved the issue.
In the absence of clear authority to the contrary, we reaffirm our rule
that, as a general proposition, the common law's  discretionary/ministerial
distinction does apply to qualified immunity determinations.  See Murray,
155 Vt. at 629, 587 A.2d at 979Ä80.

FN6.  6 V.S.A. { 2994 ("Eligibility standards") provided:
  Any dairy farmer who is a member of a regional
 marketing cooperative that encompasses the state of
 Vermont, including but not limited to the Regional
 Cooperative Marketing Agency, that obtains a market
 price for the participating producers' product that is
 above the federal market order price shall be eligible
 for payment under this chapter.  All dairy farmers shall
 be eligible for payment if no such organization is in
 operation.
The commissioner of agriculture, or his designee, was charged with reviewing
applications for the DIISP.  6 V.S.A. { 2993; see id. { 2992(1).  Plaintiffs
make no argument that they were incorrectly denied eligibility under this
section.  Rather, they have expressly refused to join a regional marketing
cooperative.

FN4.    Defendant Hebard has retired from his position as state treasurer
and defendant Allbee is no longer commissioner of agriculture.  The claims
against them remain live controversies, however, since they occupied their
official positions during the period in controversy.

FN5.   Such a rule would not protect malfeasance.  Rather, this rule is
designed to protect the official who performs a legally commanded minis-
terial task, provided no clearly established rights are violated.

FN6.   Prosser and Keeton further explain:
     If the officer follows a writ which there is no reason to
     question, there is an immunity even in the face of personal
     malice, since regardless of mental state the officer is only
     complying with a legal duty.  The problem in cases of this sort
     has often turned on the question whether the officer is
     privileged when he relies on a judicial order issued without
     jurisdiction or a statute that is unconstitutional. . . .  [T]he
     older cases tended to hold the officer liable for technical
     defects in the command under which he justified his action, while
     the more recent ones tend to excuse him unless there was reason to
     doubt the validity of the order [or] statute.
Section 132, at 1066 (footnotes omitted).

FN7.   This cases was reheard, 593 A.2d 621 (D.C. App. 1991), reversed in
part and affirmed in part, on other grounds.  In Moss v. Stockard, 580 A.2d 1011, 1018 n.12 (D.C. App. 1990), the court explained that the rehearing in
Thompson involves issues of exhaustion of administrative remedies and notes
that "the immunity analysis in Thompson is sound and that we would adopt it
even if the Thompson opinion were vacated."