Bradshaw v. Joseph

BRADSHAW_V_JOSEPH.94-667; 164 Vt 155; 666 A.2d 1175

[Filed 25-Aug-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. 94-667


Sydney Bradshaw                                   Supreme Court

                                                  On Appeal from
     v.                                            Chittenden Superior Court

                                                  June Term, 1995
Ben W. Joseph



Linda Levitt, J.

       Jonathan P. Cawley of Davis Associates, P.C., Barre, for
  plaintiff-appellant

       Douglas C. Pierson and Parker M. Riehle of Pierson, Wadhams, Quinn &
  Yates, Burlington, for defendant-appellee



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


       GIBSON, J.   Plaintiff appeals from a grant of summary judgment in
  defendant's favor by the Chittenden Superior Court, which held that 12
  V.S.A. § 5602 bars an action against defendant for acts or omissions as a
  public defender.  We affirm.

       In 1991, plaintiff was charged with sexual assault.  The court set
  bail at $10,000, and because plaintiff could not meet that requirement, he
  was held at the Chittenden County Correctional Center.  The court appointed
  defendant, a public defender, to represent plaintiff, and after entering an
  appearance, defendant moved to reduce plaintiff's bail.  The court
  subsequently reduced bail to $5000.  Plaintiff alleges that defendant
  failed to notify him of the reduction, and defendant counters that he never
  received notice of the reduction from the trial court.  Plaintiff asserts
  that he had sufficient funds to have met the reduced bail requirement and
  that as a result of defendant's negligence, he remained incarcerated until
  he was eventually acquitted, suffering damages.

 

       Defendant moved for summary judgment, asserting that, as a public
  defender, he was a state employee, and thus, 12 V.S.A. § 5602 precluded a
  suit against him.  The court agreed and granted the motion.  This appeal
  followed.

       The sole question on appeal is whether a public defender is a "state
  employee" and therefore may not be sued for negligence while acting within
  the scope of his employment.  12 V.S.A. § 5602 provides that when any act
  or omission of a state employee, as defined in 3 V.S.A. § 1101, "is
  believed to have caused damage to property, injury to persons, or death,
  the exclusive right of action shall lie against the state" and suit against
  the employee is prohibited. A "state employee" is defined in § 1101 and
  "includes any elective or appointive officer or employee within the
  legislative, executive or judicial branches of state government or any
  former such employee or officer."  3 V.S.A. § 1101(b) (emphasis added). 
  The definition "includes, without limitation," eight categories of state
  employees, including state's attorneys.  Id.

       Although none of § 1101(b)'s subsections specifically mentions public
  defenders or the defender general, executive and judicial branch employees
  are included within the definition of "state employee."  The statute uses
  the word "includes," which ordinarily signifies an intent to enlarge a
  statute's application, not to limit it.  See Vermont Ass'n of Realtors v.
  State, 156 Vt. 525, 531, 593 A.2d 462, 465 (1991).  The enumeration of
  positions is "without limitation," indicating a clear intent to enlarge the
  categories of positions that fall within the definition of "state
  employee."  In this case, we look at the origin, function and source of
  funding of a public defender position and conclude that defendant is a
  state employee under § 1101(b).

       The public defender's office and the office of defender general were
  created by statute. See 13 V.S.A. §§ 5271-5277 (public defender office) &
  5252-5257 (office of defender general). The defender general has the
  responsibility to ensure that needy persons are provided legal services
  under chapter 163 of Title 13, see id. § 5253(a), and may establish local
  public defender offices to carry out that responsibility.  Id. § 5271. 
  Thus, the function of a public defender is to provide legal representation
  to needy persons entitled to receive such

 

  representation at state expense.  The defender general is appointed by
  the governor "subject to the advice and consent of the senate," and is a
  full-time state employee, receiving compensation set by the Legislature. 
  See id. § 5252.  The defender general's budget is set by the Legislature,
  and the defender general "is responsible for assuming expenses for his
  office and all local offices."  Id. § 5254(d).  Public defenders receive
  their compensation from the defender general's budget, see id. § 5272, and
  the annual rate of their compensation may not exceed $1000 less than the
  defender general's salary.  Id. § 5254(c).  Although exempted from
  classified state service, see 13 V.S.A. § 5254(a), the origin, function and
  funding of public defenders lead us to conclude that they are state
  employees and, as such, 12 V.S.A. § 5602 bars suit against them for acts or
  omissions occurring within the scope of their employment.

       In Ferri v. Ackerman, 444 U.S. 193 (1979), the United States Supreme
  Court held that a federal public defender is not, as a matter of federal
  law, entitled to absolute immunity in a state malpractice action brought by
  a former client.  Id. at 205.  The Court left to the states the question of
  whether a public defender is immune from suit as a matter of state law. 
  Id. at 198. Courts in some states have barred suits against public
  defenders on either statutory grounds or common-law judicial-immunity
  principles.  See Browne v. Robb, 583 A.2d 949, 951 (Del. 1990) (state tort
  claims act grants general qualified immunity to private defense counsel
  appointed to represent indigent defendant in lieu of public defender),
  cert. denied, 499 U.S. 952 (1991); Dziubak v. Mott, 503 N.W.2d 771, 774
  (Minn. 1993) (granting immunity based on precedents granting immunity to
  "participants within the judicial system" and on public policy grounds);
  see also Scott v. City of Niagara Falls, 407 N.Y.S.2d 103, 105 (N.Y. Sup.
  Ct. 1978) (mem.) (public defender is cloaked with judicial immunity just as
  judge or prosecutor).

       Other jurisdictions have held that there is no immunity for public
  defenders.  The court in Spring v. Constantino, 362 A.2d 871 (Conn. 1975),
  held that the public defender is not a public official and that defending a
  client in a criminal matter is not a governmental act.  Id. at 875, 878-79. 
  But the court in Spring noted a conflict between the definition of
  "employee"

 

  under the state employee immunity statute and the state's limited
  abrogation of sovereign immunity.  According to the court, "The intent to
  limit the liability of the state to that of a private person is
  inconsistent with the broad definition of `employees' in [the state
  employee immunity statute], which would include even the status of
  independent contractor, for whose torts a private employer, as a general
  rule, is not liable."  Id. at 877 (footnote omitted).  The court resolved
  the conflict by limiting immunity to instances where there would be an
  employer- employee relationship at common law.  Id.  Thus viewed, the court
  determined that defenders, once the attorney-client relationship attached,
  were independent contractors, despite the broad definition of "employees." 
  Id at 878.

       No similar conflict is evident under Vermont law, and no reason is
  apparent why we should not follow § 1101 in determining whether public
  defenders are state employees.  But see Reese v. Danforth, 406 A.2d 735,
  739 (Pa. 1979) (once appointment of public defender is made, state or
  public function ceases, and attorney takes on all obligations and
  protections of private attorney-client relationship).

       Aside from statutory grounds unique to the jurisdictions, Spring and
  Reese rest on policy grounds, which plaintiff urges us to follow here, most
  particularly the perceived inconsistency between the role of the criminal
  defender, who is responsible only to his client, and the state employee,
  who presumably reports to and is under the control of a supervising
  official of the State -- which is the entity prosecuting the defendant. 
  See Spring, 362 A.2d at 877-78; Reese, 406 A.2d  at 738-39.

       We decline to follow the rationales of Spring and Reese.  The apparent
  paradox of having the government support and pay for a constitutionally
  adequate system of legal representation for those charged by the government
  with criminal offenses was inherent in the public defender system from the
  outset.  It is a variant of numerous inter-branch conflicts that inhere in
  our system of separation of powers, including the clear paradox of having
  the judicial branch decide constitutional challenges to legislative
  enactments whereas the Legislature appropriates the funds
  
 

  that sustain the judicial branch.  The Legislature acknowledged the
  potential problem by providing in 13 V.S.A. § 5253(a) that "[n]o other
  official or agency of the state may supervise the defender general or
  assign [the defender general] duties in addition to those prescribed by
  this chapter."

       Categorizing public defenders as state employees for the purposes of §
  5602 is not likely to exacerbate potential conflicts, and given the
  generally scarce resources with which defenders' offices operate, may
  actually promote a vigorous and independent defense.  As one court has
  stated, quoting the public defender's brief in that case:

         [T]he most probable result of . . . a decision [not to grant
         immunity] would be the exact opposite of what the courts want.
         Both the Court and the Public Defender's Office [seek] adequate
         representation of defendants in criminal proceedings . . . .
         However, if a civil rights suit from unsatisfied clients is a constant
         threat to the Attorney involved, then there would be a chilling
         effect upon Defense Counsel's tactics.  Defense Counsel would be
         caught in an intrinsic conflict of protecting himself and
         representing his client.

  Brown v. Joseph, 463 F.2d 1046, 1049 (3d Cir. 1972), cert. denied, 412 U.S. 950 (1973).  As the Dziubak court pointed out in a related context,
  "Immunity also aids in the recruitment of qualified attorneys to represent
  indigent clients in criminal proceedings.  Immunity preserves the criminal
  justice system which relies upon the judge, prosecutor and public defender
  as essential participants.  This serves the best interest of indigent
  defendants and of society as a whole." 503 N.W.2d  at 777.

       In sum, we hold that public defenders are state employees under
  Vermont law and are entitled to the same protection under § 5602 as other
  state employees.

       Affirmed.

                                        FOR THE COURT:


                                        _______________________________
                                        Associate Justice