McLaughlin v. State

MCLAUGHIN_V_STATE.93-093; 161 Vt. 492; 642 A.2d 683

[Filed 01-Apr-1994]

 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. 93-093


 Kevin McLaughlin, Sheriff of                 Supreme Court
 Chittenden County, and Chittenden
 County Sheriff's Department
                                              On Appeal from
      v.                                      Chittenden Superior Court

 State of Vermont and the Office              December Term, 1993
 of the Attorney General of the
 State of Vermont


 Alden T. Bryan, J.

 Norman R. Blais, Burlington, for plaintiffs-appellants

 Jeffrey L. Amestoy, Attorney General, and Robert W. Gagnon, Senior
    Assistant Attorney General, Montpelier, for defendants-appellants


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


      Dooley, J.  This appeal originates in a declaratory judgment action
 brought by plaintiffs Chittenden County Sheriff Kevin McLaughlin and the
 Chittenden County Sheriff's Department.  Plaintiffs sought an order
 requiring that defendants, the Attorney General and the State of Vermont,
 provide legal representation to plaintiffs in a pending workers'
 compensation action brought against plaintiffs by Alice Demag, and requiring
 that defendants assume any costs of award or settlement for which
 plaintiffs might become liable.  Plaintiffs moved for summary judgment
 below.  The court granted judgment in defendants' favor with respect to
 defendants' duty to provide representation to plaintiffs, but did order that

 

 defendants represent Sheriff McLaughlin's predecessor, Ronald Duell.
 Defendants now appeal the order to defend Duell.  Plaintiffs cross-appeal
 the grant of summary judgment in defendants' favor.  We affirm the entry of
 judgment against plaintiff McLaughlin.  We reverse the entry of judgment
 against the Chittenden County Sheriff's Department and remand that issue to
 the trial court.  Finally, we strike those parts of the trial court's order
 relating to Ronald Duell.
      Plaintiff Chittenden County Sheriff's Department is currently a party
 defendant in an action brought by Alice Demag as personal representative of
 the estate of her late husband Bernard Demag.  That action is now on appeal
 to the Chittenden Superior Court from a decision of the Commissioner of
 Labor and Industries.(FN1) Mrs. Demag sought recovery of workers' compensation
 death benefits after her husband suffered a fatal heart attack within two
 hours of his chase and apprehension of an escaped juvenile whom he had been
 transporting.  At the time of his death in January 1978, Mr. Demag was a
 special deputy sheriff for the Sheriff's Department.  He was transporting

 

 the juvenile pursuant to an agreement between the Sheriff's Department and
 the State.
      In 1992, after the Demag proceeding was appealed to superior court,
 plaintiffs in this matter brought a declaratory judgment action seeking to
 have defendants provide legal representation, as well as assume
 responsibility for paying any award or settlement amount for which the
 plaintiffs might become liable.  Plaintiffs subsequently moved for summary
 judgment, arguing that 3 V.S.A. { 1101 required defendants to defend and
 indemnify.  The motion was accompanied by an affidavit from plaintiff
 McLaughlin that essentially stated the allegations in the complaint.  In
 response, defendants argued that 21 V.S.A. { 601(12)(L), which excludes
 sheriff's deputies from state workers' compensation coverage, controlled,(FN2)
 and required that plaintiffs' complaint be dismissed.
      The superior court rejected defendants' argument, ruling that 21 V.S.A.
 { 601 is "relevant only to the question of whether Mr. Demag was engaged in
 public employment for the purposes of adjudicating his workers' compensation
 claim.  It is not relevant to the issue of the State's duty to defend civil
 actions against state employees, which is the subject of 3 V.S.A. { 1101."
 Despite this conclusion, the court granted summary judgment in defendants'
 favor, and denied plaintiffs' motion for summary judgment, because Sheriff
 McLaughlin was not a party in the underlying workers' compensation appeal
 and the Chittenden County Sheriff's Department was not a state employee as
 required by 3 V.S.A. { 1101.  On the same day as it decided the summary
 judgment motion, it granted Mrs. Demag permission to add Ronald Duell,

 

 former sheriff, as a party in the workers' compensation appeal.  Because of
 that action, the court went on to state in this case that the State had an
 obligation to defend Ronald Duell.
      We can dispose easily of two of the issues raised by the parties: (1)
 whether the trial court erred in granting summary judgment against Sheriff
 McLaughlin; and (2) whether it erred in ruling that defendants had an
 obligation to defend former Sheriff Duell.  The court made the first ruling
 because Sheriff McLaughlin was not a party to the workers' compensation
 appeal.  The statute on which plaintiffs rely, 3 V.S.A. { 1101(a), is
 triggered when a civil action is brought against a state employee who in
 turn seeks representation at state expense.  Since Sheriff McLaughlin is not
 a party to the underlying action, the statute is inapplicable.
      Plaintiffs argue here that Sheriff McLaughlin had standing in this
 action, despite not being named in the workers' compensation appeal, because
 he is the successor in office to Ronald Duell, who is named.  Apparently,
 plaintiffs' theory is that Ronald Duell was named in his official capacity
 as former sheriff and any liability will inure to Sheriff McLaughlin as the
 current occupant of the office.  We understand plaintiffs' argument to be
 that McLaughlin had standing to bring the declaratory judgment action to
 assert the right of Duell and the Department to representation.  This
 argument was not raised below, and we will not consider it here.  See
 Northwest Vt. Solid Waste Management Dist. v. Central Vt. Solid Waste
 Management Dist., 159 Vt. 61, 65, 614 A.2d 816, 819 (1992) (Court will not
 considered claims first raised on appeal).  Indeed, as we discuss infra, the
 question of representation of Duell was never raised in the complaint nor in
 the motion for summary judgment.  Moreover, giving Sheriff McLaughlin

 

 standing is unnecessary unless he is named in the underlying suit or Duell
 fails to pursue his interests.  In either instance, Sheriff McLaughlin would
 be free to seek intervention anew upon asserting clearly the interest that
 gives him standing.
      On the second issue, defendants argue that the court erred in granting
 relief to Ronald Duell because he was not a party to the action and 3 V.S.A.
 { 1101(a) does not apply to him.  We agree that the trial court was at least
 premature in its action.  The lone matter before the court was a motion for
 summary judgment filed by plaintiffs.  In this context, the only questions
 for the court were whether a genuine issue of fact existed, Bennett Estate
 v. Travelers Ins. Co., 138 Vt. 189, 191, 413 A.2d 1208, 1209 (1980), and the
 legal consequences flowing from the absence of a factual dispute.  The facts
 before the court were the admitted sections of the complaint and a short
 affidavit from Sheriff McLaughlin that never mentioned Ronald Duell.  There
 was no request for any relief with respect to Duell.
      There are other considerations that make relief inappropriate.  Ronald
 Duell was not a party below and has not appeared here.  See 12 V.S.A. { 4721
 ("no declaration shall prejudice the rights of persons not parties to the
 proceeding"); Bills v. Wardsboro School Dist., 150 Vt. 541, 545, 554 A.2d 673, 676 (1988) (persons "who were not parties to the litigation, cannot be
 bound by the court's judgment"); Graves v. Town of Waitsfield, 130 Vt. 292,
 295, 292 A.2d 247, 249 (1972) (purpose of declaratory judgment is to declare
 "the rights of the parties").  We do not know whether he desires or needs
 representation at the expense of the State.  Nor do we know the basis on
 which he was added as a party to the underlying workers' compensation
 appeal.  That proceeding has a number of party defendants, suggesting that

 

 it involves more than a simple appeal of a coverage question.(FN3) Moreover,
 plaintiffs assert Duell was sued in his official capacity, which suggests
 that the right of defense, if any, is similar to that possessed by the
 Department, which, as we discuss below, involves other statutes.
      Because of the inadequate record, we also decline defendants'
 invitation to decide whether Duell could be entitled to representation under
 { 1101.  The proper action for the court was to deny summary judgment, at
 least until there was an opportunity to join Duell in the action or to
 otherwise allow his entitlement to representation to be argued and
 determined.  We will remand for that purpose.
      This leaves only the issue of the appropriateness of summary judgment
 against the Chittenden County Sheriff's Department.  Although the trial
 court noted that the "parties have not briefed the issue," it nevertheless
 granted summary judgment against the Department because it was not an
 "employee" as required by { 1101.  We conclude that the court acted on an
 incomplete view of the statutory scheme, and, as a result, ruled
 prematurely and on an inadequate factual record.
      At the outset, however, we agree with the court's assessment that the
 Department is not an "employee" as required by 3 V.S.A. { 1101.  The plain
 meaning of the statute commands that result.  See Burlington Elec. Dep't v.
 Vermont Dep't of Taxes, 154 Vt. 332, 335-36, 576 A.2d 450, 452 (1990) (when
 meaning of statute plain on its face, court will enforce statute according
 to its terms).  That conclusion does not end the matter, however, because

 

 the Attorney General's duty of defense is much broader.  A primary power and
 responsibility of the Attorney General is to "represent the state in all
 civil and criminal matters as at common law and as allowed by statute."  3
 V.S.A. { 152.  The Attorney General's responsibilities in this regard are
 expressed in 3 V.S.A. { 157, which provides:
      The attorney general shall appear for the state in the
      preparation and trial of all prosecutions for homicide and civil
      or criminal causes in which the state is a party or is interested
      when, in his judgment, the interests of the state so require.

 This section is the basis for the Attorney General's duty as chief legal
 officer of the State to protect and defend it and its interests.  The scope
 of the Attorney General's duties are further defined in a number of other
 statutory provisions.(FN4)
      On this record, we cannot conclude that { 157 forecloses a duty of
 defense.  The meaning of the term "state" depends upon its context.  In
 this context, we read the term broadly to include component parts of state
 government.  See Kroll v. Board of Trustees of Univ. of Ill., 934 F.2d 904,
 907 (7th Cir. 1991) ("a state agency is the state for purposes of eleventh
 amendment" to United States Constitution); State v. Brooks, 616 P.2d 70, 73
 (Ariz. Ct. App. 1980) (statute that makes embezzlement from "state" a crime
 covers embezzlement from "respective offices, divisions, departments and
 entities into which state government is divided"); Shell Oil Co. v. Board of
 Comm'rs of Pontchartrain Levee Dist., 336 So. 2d 248, 253 (La. Ct. App.
 1976) (levee district is "state" for purposes of provision on state sales of

 

 property); Fuselier v. State, 468 So. 2d 45, 56 (Miss. 1985) (for purposes
 of criminal procedure discovery obligation the term "state" covers all
 agencies of state); Allis-Chalmers Mfg. Co. v. Curtis Elec. Co., 259 S.W.2d 918, 921 (Tex. Ct. App. 1953) ("this state" in bonding law includes state
 university).  The main charter of the Attorney General's authority, { 152,
 authorizes the Attorney General to "represent the state."  Since the State
 must act through its various agencies, departments and instrumentalities,
 that authority is meaningful only if it encompasses those component parts.
 Thus, if the Chittenden County Sheriff's Department can be said to be an
 agency or instrumentality of the State of Vermont, the Department will be
 entitled to representation under { 157.
      We cannot exclude the Department from { 157 because it is a county, not
 state, entity.  As we have noted before, "[t]he Vermont county is a unit of
 special functions," Town of Stowe v. County of Lamoille, 134 Vt. 402, 405,
 362 A.2d 159, 161 (1976), and so too are the sheriffs' departments.  These
 departments are headed by sheriffs who are elected by county residents, 24
 V.S.A. 290, but who are nonetheless state employees.  See 32 V.S.A. { 1182
 (setting out sheriffs' salaries).  While county sheriffs' departments
 provide peace officers for their communities, see 24 V.S.A. { 299, they also
 provide a state function in the transportation of prisoners and mental
 patients.  See id. { 296.  For this purpose, they employ deputies who are
 paid by the State.  See 24 V.S.A. { 290(b).  We note that "[o]ver the last
 twenty years, the state has become the primary source of funding for the
 sheriffs' departments."  State of Vermont, Executive Budget -- Fiscal Year
 1991, at 66 (1990).

 

      We have not had occasion to decide whether sheriff's departments are
 instrumentalities of the State for this or other purposes.  While this issue
 has not been extensively litigated, other courts have recognized that a
 state's duty to defend could be extended to county departments or employees
 if the underlying activity is funded by or undertaken on behalf of the
 state.  See Dunne v. Fireman's Fund Am. Ins. Co., 353 A.2d 508, 512 (N.J.
 1976) (recognizing hybrid state-county employee status of county
 detectives, and deeming them agents of state for purposes of obtaining and
 executing search warrant on behalf of county prosecutor, who is a state
 officer, and county employees "for certain administrative and remunerative
 purposes"); see also Township of Edison v. Hyland, 383 A.2d 714, 716 (N.J.
 Super. Ct. App. Div. 1978) (county prosecutor and detectives "may be
 considered as agents of the state for some purposes," although state has no
 duty to defend civil rights suit arising from duties funded by and
 undertaken solely on behalf of county drug task force, and not on behalf of
 state); cf. Cates v. Webster, 727 S.W.2d 901, 907 (Mo. 1987) (en banc) (no
 duty of attorney general to defend county court bailiff in tort action
 because bailiff's salary and benefits paid solely by county and therefore
 bailiff "not an employee of the state or an agency thereof" within meaning
 of representation statute).  Similarly, in the context of workers'
 compensation claims, courts have allowed individuals to recover as
 employees of the state despite county affiliations.  See, e.g., County of
 Sonoma v. Workers' Compensation Appeals Bd., 222 Cal. App. 3d 1133, 1141-42,
 272 Cal. Rptr. 297, 301-02 (Cal. Ct. App. 1990) (county municipal court
 judge is state employee for purposes of workers' compensation benefit system

 

 given that state directs and controls court system, including judges, and
 even though bulk of judge's salary paid by county).
      Courts have generally recognized that the duty of the attorney
 general's office to defend state instrumentalities such as agencies, boards
 and commissions, as well as state officials and employees, is to protect the
 public treasury from the expense of funding private attorneys.  See, e.g.
 State Bd. of Barber Examiners v. Walker, 192 P.2d 723, 727 (Ariz. 1948).
 Equally important, however, is the recognition that the state must bear the
 duty and cost of representing its agencies, as well as its officers and
 employees, in actions arising in the course of state activity, for it is the
 state that derives benefit from the activity.
      We recognize that { 157 gives the Attorney General some discretion in
 determining when to provide representation, at least when the State is
 interested, but is not a party.  It is inappropriate for us to try to decide
 at this point the scope of that discretion or its applicability here.
      The limited facts before the trial court indicated that Mr. Demag was
 transporting a juvenile under the State's care, pursuant to an agreement
 with the State, and his death was related to that duty.  These facts raise a
 sufficient question as to whether his employer, the Chittenden County
 Sheriff's Department, was an instrumentality of the state to avoid summary
 judgment.  We remand for consideration of this issue.
      Finally, because the trial court did not address the duty of the State
 of Vermont to pay any award against the Chittenden County Sheriff's
 Department, this issue must also be addressed on remand.


 

      Entry of judgment against plaintiff Kevin McLaughlin is affirmed.
 Entry of judgment against plaintiff Chittenden County Sheriff's Department
 is reversed and remanded.  References to the rights of Ronald Duell in the
 court's order of January 13, 1993 are stricken.

                                              ______________________________
                                              Associate Justice

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                                Footnotes

FN1.      The appeal is titled Demag v. Chittenden County Sheriff's Dep't,
 Docket No. S1368-91 CnC, and names as defendants the Chittenden County
 Sheriff's Department, the County of Chittenden, the State of Vermont, and
 American Insurance Company.  Ronald Duell was recently added as a party
 defendant in the appeal.
     According to plaintiff's complaint, there is also another proceeding
 pending before the Department of Labor and Industries in which Mrs. Demag is
 seeking to hold the Chittenden County Sheriff's Department responsible to
 pay workers' compensation benefits.
     Yet another part of this litigation has previously come before this
 Court.  In 1986, we held that plaintiff Demag was first required to go
 before the Commissioner of Labor and Industries to determine whether she was
 entitled to workers' compensation death benefits, and that she could not
 have that issue resolved by way of a declaratory judgment action before the
 superior court.  See Demag v. American Ins. Cos., 146 Vt. 608, 610, 508 A.2d 697, 698 (1986).  Presumably, she followed the holding of that decision, but
 was unsuccessful before the Commissioner, and has since appealed the
 Commissioner's decision.

FN2.      In 1983, { 601 was amended, and subsection 12(L) was redesignated
 12(N).  In 1988, { 601(12)(N) was amended to provide that "public
 employment" included sheriffs and deputy sheriffs.

FN3.    The earlier case before this Court involved some of the same parties
 and included a claim of intentional infliction of emotional distress against
 American Insurance.  See Demag v. American Ins. Cos., 146 Vt. 608, 609, 508 A.2d 697, 698 (1986).

FN4.      The office of the attorney general is defined by 3 V.S.A. {{ 151-
 164.  Unlike other states, the powers of the Vermont Attorney General are
 not derived from any constitutional provisions, but are wholly statutory.
 Cf. Manchin v. Browning, 296 S.E.2d 909, 915 (W. Va. 1982) (scope of
 Attorney General's duties "specified by the constitution and by rules of law
 prescribed pursuant thereto").