Burlington Police Officers' Assoc. v. City of Burlington

Burlington Police Officers' Assoc. v. City of Burlington (94-665); 
166 Vt 581; 689 A.2d 1071

[Filed 14-Oct-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 94-665

                             JANUARY TERM, 1996


Burlington Police Officers'          }     APPEALED FROM:
Association, et al.                  }
                                     }
     v.                              }     Chittenden Superior Court
                                     }
City of Burlington                   }
                                     }     DOCKET NO. S1137-94CnC


       In the above-entitled cause, the Clerk will enter:


       Plaintiffs Theodore Everlof and the Burlington Police Officers'
  Association appeal a superior court order dismissing their complaint for
  injunctive relief.  We vacate and dismiss the claim because the suit is
  against the wrong party.

       In August 1994, Everlof, then a police officer employed by the
  Burlington Police Department and a member of the Burlington Police
  Officers' Association, was the subject of an internal investigation by the
  Department.  The Department charged him with violating its administrative
  rules by engaging in domestic abuse and, in accordance with procedure,
  ordered him to attend an interview and answer questions.  Everlof was told
  that he would lose his job if he refused to answer.

       On August 17, Everlof and the Burlington Police Officers' Association
  filed a complaint seeking a declaratory judgment that the Department's
  promise of use and derivative-use immunity was insufficient to protect him
  against self-incrimination under the Vermont Constitution.  The form used
  by the Department to notify officers about internal investigations states
  that "[n]o answers given nor any information gained by this administrative
  interview may be admissible against you in any proceeding."  Plaintiffs
  also sought to enjoin the Department from compelling Everlof to give
  evidence in an internal investigation without providing him transactional
  immunity, which would bar prosecution for conduct that is the subject of
  compelled testimony.

       Shortly thereafter, plaintiffs filed an amended complaint seeking
  summary judgment and certification of a class including all patrol officers
  below the rank of sergeant.  The City of Burlington filed a motion to
  dismiss for failure to state a claim upon which relief can be granted,
  arguing that the Department's procedures complied with the state
  constitution and that plaintiff's claim was not ripe for adjudication.

       In September the Department modified its interview requirements for
  Everlof's case such that he would not be disciplined if he chose to invoke
  his privilege against self-incrimination. Everlof submitted to the
  interview but did not answer questions.  The Department pursued its
  investigation without his testimony.  The City then moved to dismiss on the
  ground that the case was moot.  The court denied defendant's motion,
  concluding that the issue was capable of repetition, but evaded review. 
  Ultimately, the trial court certified the class and granted summary
  judgment to the City.  This appeal followed.

 

       In essence, plaintiffs seek to have the form used to notify police
  officers about internal investigations modified to read that if an officer
  answers questions about conduct, the officer cannot be prosecuted for that
  conduct.  Plaintiffs base their claim to such a notice on Article I,
  Chapter 10 of the Vermont Constitution, because the self-incrimination
  clause of the Fifth Amendment to the United States Constitution has been
  interpreted to require only use and derivative-use immunity.

       As is common, plaintiffs' state constitutional argument urges us to
  accept federal doctrine, except for the one matter in issue, and engraft
  onto it a more liberal state rule for that issue.  Although we have some
  precedents exploring the self-incrimination right in Chapter 10, the issues
  raised here are entirely those of first impression, and we should not
  blindly accept the federal scheme.

       The critical federal decisions are Garrity v. New Jersey, 385 U.S. 493
  (1967), Gardner v. Broderick, 392 U.S. 273 (1968), Uniformed Sanitation Men
  Ass'n v. Commissioner of Sanitation, 392 U.S. 280 (1968), and Lefkowitz v.
  Turley, 414 U.S. 70 (1973).  In Garrity, a police officer, who faced
  dismissal if he refused to answer questions in an internal investigation
  hearing, was convicted in a criminal proceeding based on evidence that
  included the testimony he gave in the administrative investigation.  The
  Supreme Court held the statements in the investigation were coerced because
  of the threat of dismissal and were inadmissible in the criminal proceeding
  because there was no effective waiver of defendant's self-incrimination
  rights.  385 U.S.  at 500.  Gardner, 392 U.S.  at 279, and Uniformed
  Sanitation Men Ass'n, 392 U.S.  at 284-85, announced the corollary holding
  that public employees could not be fired for refusing to waive their
  self-incrimination rights in an administrative investigation of their
  misconduct.   Gardner, 392 U.S.  at 278, added dicta, amplified in
  Lefkowitz, 414 U.S.  at 81, that the public employee could be required to
  answer incriminating questions, and be fired for refusal to answer, if
  offered immunity against use of the answers in future criminal proceedings.
  As the Court summarized in Lefkowitz, "[I]f answers are to be required in
  such circumstances States must offer to the witness whatever immunity is
  required to supplant the privilege and may not insist that the employee or
  contractor waive such immunity."  414 U.S.  at 85.

       The Supreme Court has never returned to the issue to define how the
  state must offer immunity to the witness.  There are three resolutions to
  the question, and each has some support in case law: a formal grant of
  immunity, warnings from the employer, and self-executing immunity.  See B.
  Warnken, The Law Enforcement Officers' Privilege Against Compelled Self-
  Incrimination, 16 Balt. L. Rev. 452, 481-88 (1987).  First, the requirement
  could be that the employee must be offered immunity by the official or
  officials who are empowered to grant such immunity under state law. 
  Massachusetts appears to have adopted this approach under its state
  constitution.  See Baglioni v. Chief of Police, 656 N.E.2d 1223, 1224
  (Mass. 1995); Carney v. City of Springfield, 532 N.E.2d 631, 635-36 (Mass.
  1988).

       Second, the requirement could be that the employer advise the employee
  that the relevant immunity covers the testimony given in the internal
  investigation and that the giving of such testimony does not involve waiver
  of a defendant's self-incrimination rights.  Some federal and state courts,
  applying federal law, have required such an advisement.  See Uniformed
  Sanitation Men Ass'n v. Commissioner of Sanitation, 426 F.2d 619, 627 (2d
  Cir. 1970), cert. denied, 406 U.S. 961 (1972); Brown v. City of North
  Kansas City, 779 S.W.2d 596, 600 (Mo. Ct. App. 1989).  The requirement for
  such an advisement is a central element of plaintiffs' complaint here. 
  Indeed, as defined in the complaint, the sole issue is the content of such
  advisement.

       Third, the requirement could be that the giving of coerced testimony
  in the internal

 

  investigation, without an explicit waiver of the privilege against
  self-incrimination, creates a form of immunity applicable in any related
  criminal proceeding.  This is the narrow holding of Garrity. 385 U.S.  at
  500.  It need not be accompanied by any employer advisement or action by a
  prosecutor or court, prior to the employee giving testimony in the internal
  investigation.

       Of these options, the second is by far the least attractive.  If
  police officers are prosecuted in Vermont courts, it will be by the
  Attorney General or a state's attorney, or both. The City has no relevant
  power of prosecution,(FN1) and certainly no power to offer immunity from
  prosecution by the State of Vermont.  Indeed, the only statutory power
  given to a prosecutor to grant immunity to a witness allows a grant of use
  and derivative-use immunity.  See 12 V.S.A. § 1664.  Thus, the City's
  statement is simply its interpretation of self-incrimination law, which is
  unenforceable if it is wrong.

       There is no need for an unenforceable statement by the employer of its
  view of the consequences of coerced testimony in subsequent criminal
  proceedings.  The advisement that plaintiffs challenge in this case is
  explicitly required by the collective bargaining agreement between
  plaintiff Burlington Police Officers' Association and defendant City of
  Burlington.  No doubt these parties can bargain for any kind of statement
  they deem necessary to ensure that officers do not waive important rights
  because of ignorance.  As if to reinforce this point, the current
  bargained-for advisement is, at best, an incomplete statement of what is
  involved in use and derivative-use immunity.

       We are also concerned about the prospect of police officers immunizing
  each other through disciplinary investigations, making decisions without
  the involvement of prosecutors. Even if we assume everyone will act in good
  faith, a very real risk exists that officers who commit criminal acts will
  escape criminal responsibility because of acts taken in disciplinary
  investigations.  See generally, K. Bloch, Police Officers Accused of Crime:
  Prosecutorial and Fifth Amendment Risks Posed by Police-Elicited "Use
  Immunized" Statements, 1992 U. Ill. L. Rev. 625.  Whatever rule we adopt
  should minimize this risk.  Ideally, the Legislature should require that a
  prosecutor be informed of pending disciplinary investigations, and the
  prosecutor should have the power to prevent coerced interrogation that
  would lead to immunity claims that would defeat criminal prosecution.

       We are not required to decide between options one and three in this
  case.  Whichever option we might embrace, no relief is available against
  the City of Burlington, the only

 

  defendant in this case.

       Vacated and dismissed.



--------------------------------------------------------------------------------
                                 Concurring


       MORSE, J., concurring.  Although I concur in the holding that the
  appeal should be dismissed, I disagree with the Court's apparent
  willingness to decide the matter.  At the outset of its opinion, the Court
  acknowledges that plaintiff Everlof was not compelled to submit to the
  procedure that forms the basis of his challenge, which intimates the case
  is moot.  Yet, at the conclusion, the Court finds that no relief is
  available against the named defendant, an issue not raised on appeal.  In
  between, the Court provides an interesting discussion of the merits but
  ultimately reaches no conclusion because, as the Court recognizes, it is
  unnecessary to its holding.

       I would have avoided the obiter dictum and simply held that the case
  is moot. Otherwise, it would seem that the matter may be easily raised to
  our Court again simply by adding the proper party.  V.R.C.P. 19(a).

       "[T]he mootness doctrine requires that there be an actual controversy
  in existence at all stages of review, not merely at the time the plaintiff
  originally filed the complaint."  Doria v. University of Vt., 156 Vt 114,
  117, 118, 589 A.2d 317, 319 (1991) (mootness defeats jurisdiction); In re
  S.H., 141 Vt. 278, 280, 448 A.2d 148, 149 (1982) (petitioner's stake in
  litigation must continue throughout entirety to confer jurisdiction upon
  court).  Here, the issue is moot as to plaintiff Everlof because the
  Department changed its procedures in his case and he was not compelled to
  answer questions.

       Plaintiffs contend, and the trial court concluded, that this case
  falls within an exception to the mootness doctrine because it is "`capable
  of repetition yet evading review.'"  Sosna v. Iowa, 419 U.S. 393, 400-401
  (1975) (quoting Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, (1972)); see
  State v. Tallman, 148 Vt. 465, 469, 537 A.2d 422, 424 (1987).  The
  applicability of this exception depends on the satisfaction of two
  elements: (1) the challenged action must be of such short duration that it
  cannot be fully litigated prior to the time it ceases or expires, and (2)
  there must be a reasonable expectation that the same complaining party will
  be subject to the same action again.  Weinstein v. Bradford, 423 U.S. 147,
  149 (1975); Tallman, 148 Vt. at 469, 537 A.2d  at 424.  In this case,
  neither element can be met.

       Although it is theoretically possible, it is unlikely that Everlof
  will be in this situation again.  See Doria, 156 Vt. at 118-19, 589 A.2d  at
  319 (plaintiff must show probability that he will become entangled in same
  controversy again).  Thus element two is not satisfied. Furthermore, it is
  not inevitable that in every case in which it could be raised, the immunity
  issue would become moot before it could be adjudicated.  On the contrary,
  the litigation process could be managed to enable review.  An individual
  subject to prosecution for conduct that was the subject of a compelled
  statement could, through a petition for declaratory relief, see Doria, 156
  Vt. at 117, 589 A.2d  at 318; 12 V.S.A. § 4711, and the interlocutory appeal
  process, see State v. Pelican, 154 Vt. 496, 501, 580 A.2d 942, 946 (1990),
  suspend criminal prosecution pending review.  This is not a situation where
  the mere passage of time will invariably render the issue moot.  Cf. Roe v.
  Wade, 410 U.S. 113, 125 (1973) (266-day human gestation period is so short
  that pregnancy will come to term before appellate process is complete). 
  Thus the exception to the mootness doctrine does not apply to Everlof
  individually.

 

       Where a class has been certified,(FN2)  however, the claim will fall
  within the exception if "the issue sought to be litigated escapes full
  appellate review at the behest of any single challenger" even if it is moot
  as to the named plaintiff.  Sosna, 419 U.S.  at 401.  Thus, as long as the
  controversy remains live with respect to at least one member, a class need
  only satisfy the first element of the two-part test.  See Gerstein v. Pugh,
  420 U.S. 103, 110 n.11 (1975); Sosna, 419 U.S. at 401-02; Robidoux v.
  Celani, 987 F.2d 931, 938-39 (2d Cir. 1993). Nevertheless, this standard
  cannot be met here.

       Apparently no class member is subject to internal investigations.  It
  is certainly possible that this issue is no longer live with respect to any
  class member.  Furthermore, as noted above, plaintiffs' claim is not one
  that evades review.  Sosna, 419 U.S.  at 399-400.  To be sure, the "evading
  review" exception discussed in Sosna does not represent the only
  circumstance where a "live controversy" may be found notwithstanding the
  fact that the case may be moot as to the named class representative. 
  Franks v. Bowman Transp. Co., 424 U.S. 747, 753-55 (1976)  The ultimate
  question is whether the class litigants have "`such a personal stake in the
  outcome of the controversy as to assure that concrete adverseness which
  sharpens the presentation of issues upon which the court so largely depends
  for illumination of difficult questions.'"  Bowman Transp. Co., 424 U.S.  at
  755 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).  As noted above, the
  requisite adversarial relationship in this case is wholly speculative, and
  falls well short of the "concrete adverseness" we require.  For this
  reason, I would dismiss the case as moot.

       Justice Gibson authorizes me to say that he joins in this concurrence.



     BY THE COURT:


     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice




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                                  Footnotes


FN1.  The City has a city grand juror, who under the city ordinances
  "may prosecute before the applicable Vermont courts violations of the
  ordinances, regulations and by-laws of said city." Burlington, Vt., Code of
  Ordinances § 151 (1996).  Town and city grand jurors formerly had the power
  to prosecute misdemeanors before the justice and municipal courts and
  frequently were appointed to exercise this authority, at least in the large
  communities of the state.  See V.S. 1947 § 2373; State v. Hedding, 122 Vt.
  379, 172 A.2d 599 (1961) (appeal of DWI conviction in Barre Municipal Court
  prosecuted by the Grand Juror for the City of Barre).  With the elimination
  of the judicial duties of justices of the peace, and the creation of the
  district court, the prosecutorial functions of the office have atrophied. 
  See 32 V.S.A. § 1519 (grand juror may not be paid a fee for a case
  prosecuted in a town or city where a state's attorney resides unless the
  state's attorney is disqualified or unable to handle the case).  It is
  unlikely today that the Grand Juror of Burlington would be prosecuting a
  criminal case against a police officer, for which immunity is required.  In
  any event, the city grand juror has no power to offer immunity.


FN2.  Because no challenge to certification was made on appeal, we
  assume for the purposes of this analysis that the class was properly
  certified.