Winfield v. State
Annotate this Case
Winfield v. State (99-524); 172 Vt. 591; 779 A.2d 649
[Filed 08-Jun-2001]
ENTRY ORDER
SUPREME COURT DOCKET NO. 1999-524
JANUARY TERM, 2001
Carol Winfield } APPEALED FROM:
}
}
v. } Chittenden Superior Court
}
State of Vermont, et al. }
} DOCKET NO. S0989-98 CnC
Trial Judge: Matthew I. Katz
In the above-entitled cause, the Clerk will enter:
Plaintiff Carol Winfield appeals from a superior court judgment
dismissing her claims against defendants State of Vermont, Allen Elser,
Roger Whitcomb, John Klauzenberg, Richard Hislop and Robert Rook for
failure to state a claim upon which relief can be granted under V.R.C.P.
12(b)(6). Plaintiff contends the court erred in determining that: (1)
tort claims against the individual defendants were barred by the doctrine
of official immunity; (2) tort claims against the State were barred by the
doctrine of sovereign immunity; and (3) claims for monetary damages and
declaratory relief premised on violations of the Vermont Constitution were
barred by the availability of adequate alternative remedies. We affirm.
Since it is here on dismissal, the factual circumstances are those
well pleaded in the original complaint. See Richards v. Town of Norwich,
169 Vt. 44, 48-49, 726 A.2d 81, 85 (1999) (for purposes of reviewing
motion to dismiss, we accept as true all well pleaded allegations in
complaint). In 1992, the Commissioner of the Department of Fish and
Wildlife issued a permit to plaintiff to serve as a wildlife
rehabilitator. See 10 V.S.A. § 5215(b) (authorizing commissioner to
"issue a permit to a person, organization or group for the purpose of
rehabilitating sick or injured wild animals"). Plaintiff was known at the
time as a vocal critic of the Department.
In 1993, fish and wildlife warden Klauzenberg secretly tape-recorded a
telephone conversation between plaintiff and a third party, with the third
party's cooperation, and wrote a report containing defamatory remarks
about plaintiff based on the recorded conversation. Later the same year,
plaintiff obtained verbal permission from Major Roger Whitcomb of the
Department to provide an injured animal to Susan Morse, as plaintiff's
sub-permittee, to prepare the animal for release to the wild. Warden
Hislop subsequently issued a written warning to plaintiff for entrusting
the animal to Morse, purposely omitting plaintiff's defense that she had
received permission.
In 1994, plaintiff reported to Major Whitcomb's secretary that she was
having difficulty filing Department paperwork each month. The secretary
told her that it was acceptable not to file reports immediately, as
Whitcomb did not examine them until later.
In 1997, the Department received an anonymous report that a baby otter
had been brought to the office of a physician who was one of plaintiff's
sub-permittees. In response, warden Rooks arranged to have an undercover
federal officer visit the physician's office. The federal agent was shown
the otter in the physician's private office. Rooks reported the incident
to Whitcomb and the Commissioner, who directed the Department's lawyer to
send plaintiff a letter. The letter, dated August 18, 1997, notified
plaintiff that her wildlife rehabilitation permit was under review, and
that until further notice she was not "to accept or obtain any animals not
currently in [plaintiff's] possession." The letter noted that plaintiff
currently possessed a river otter that had not been reported to the
Department and cited Department policies governing the disposition of
animals. Finally, the letter advised plaintiff that no additional
sub-permittees would be approved during the review period.
In response to the letter, plaintiff called a supervising lawyer for
the Agency of Natural Resources, who called her back the same day. The
lawyer told plaintiff that her license was not suspended, and informed
her that a hearing would be held prior to any suspension. In September
1997, the Department sent a letter to plaintiff's counsel setting forth
charges that she had violated Department regulations by placing the otter
on public display and had failed to submit timely reports. Thereafter,
plaintiff and the Department resolved the dispute by entering into a
settlement agreement. Following the agreement, according to plaintiff's
complaint, the Department continued to subject plaintiff to discriminatory
treatment, "including failure to answer routine inquiries, and refusal or
extraordinary delay in granting otherwise routine approvals."
In August 1998, plaintiff filed this action against the State and
individual defendants, alleging a variety of tort claims, including
intentional infliction of emotional distress, abuse of process and
malicious prosecution. (FN1) She also alleged due process and free speech
violations of the United States Constitution and 42 U.S.C. § 1983 and
similar infringements of the Vermont Constitution. The individual
defendants removed the case to federal district court and thereafter moved
to dismiss for failure to state a claim. The district court granted the
motion with respect to the § 1983 claims. The court assumed for purposes
of analysis that the wildlife rehabilitation license constituted a
protected property interest under the due process clause, but concluded
that there had been no license revocation or suspension and therefore no
compensable deprivation. The court also found no violation of a property
right resulting from the exercise of plaintiff's First Amendment rights.
Accordingly, the federal court dismissed the § 1983 claims and remanded the
matter to the superior court for consideration of the remaining State
claims.
The State thereupon moved to dismiss for failure to state a claim,
arguing that the government officials were entitled to qualified immunity;
the Commissioner was entitled to absolute immunity; the action against the
State was barred by the doctrine of sovereign immunity; the provisions of
the Vermont Constitution relied on by plaintiff provided no private right
of action; and some of the claims were barred by the statute of
limitations. The trial court granted the motion. This appeal followed.
I.
Plaintiff first contends the court erred in dismissing her tort claims
against the individual defendants on the basis of qualified immunity and
against the State on the basis of sovereign immunity. The standards of
review are well established. A motion to dismiss for failure to state a
claim should not be granted unless there exist no facts or circumstances
that would entitle the plaintiff to relief. See Richards, 169 Vt. at 48,
726 A.2d at 85. In reviewing the trial court's disposition of a motion to
dismiss, we assume that all well pleaded factual allegations in the
complaint are true, as well as all reasonable inferences that may be
derived therefrom. See id. at 48-49, 726 A.2d at 85.
We recently summarized the law of qualified immunity as follows:
Such immunity protects lower-level government employees from
tort liability when they perform discretionary acts in good faith
during the course of their employment and within the scope of
their authority. See Sabia v. Neville, 165 Vt. 515, 520, 687 A.2d 469, 473 (1996). Even in applying qualified official
immunity to state tort law, we use the federal objective good
faith standard "to prevent exposing state employees to the
distraction and expense of defending themselves in the courtroom."
Id. at 521, 687 A.2d at 473. The outcome of the analysis depends
on the objective reasonableness of the official's conduct in
relation to settled, clearly-established law. See id.; Murray v.
White, 155 Vt. 621, 630, 587 A.2d 975, 980 (1991). Thus, if the
official's conduct does not violate clearly-established rights of
which a reasonable person would have known, the official is
protected by qualified immunity from tort liability.
Cook v. Nelson, 167 Vt. 505, 509, 712 A.2d 382, 384 (1998).
Assessed in light of these standards, the trial court's ruling on the
issue of qualified immunity was sound. The essence of the claim against
warden Klauzenberg was that he secretly tape-recorded a telephone
conversation between plaintiff and a third party, with the third-party's
cooperation, and then "wrote a report with defamatory comments about
[plaintiff] based on the tape-recorded conversation." The trial court
correctly noted that the tape recording did not violate federal or state
law, see 18 U.S.C. § 2511(2)(c), and plaintiff has not challenged this
ruling on appeal. Rather, she contends that the duty not to issue false
reports is a "ministerial" function and therefore outside the scope of any
qualified immunity. (FN2) We agree with the trial court, however, that the
game warden's decision to issue an investigative report concerning
plaintiff's activities was based upon his evaluation of her performance as
a wildlife rehabilitator and whether it was consistent with statutes,
regulations, and Department policy. Thus, whether the report was accurate
or not, we conclude that its issuance fell within the scope of the
warden's discretionary duties. See Johnson v. State, 165 Vt. 588, 590,
682 A.2d 961, 964 (1996) (mem.) (housing inspector's decision to issue
lodging license based upon subjective, albeit "unwise," evaluation of
compliance with health requirements was discretionary act subject to
qualified immunity); Hudson v. Town of East Montpelier, 161 Vt. 168,
171-75, 638 A.2d 561, 563-66 (1993) (noting that ministerial/discretionary
distinction is not subject to formulaic definition, but must be determined
on case by case basis in light of policy of encouraging public employees
to discharge their duties and exercise their independent judgment); LaShay
v. Department of Soc. & Rehab. Servs., 160 Vt. 60, 65, 625 A.2d 224, 227
(1993) (discretionary duty requires "judgment in performance").
The gist of the complaint against warden Hislop was that he issued a
written warning to plaintiff concerning her use of Morse to rehabilitate
an injured animal and "purposely omitted [plaintiff's] defense, that she
had in fact obtained Department permission." The complaint also alleged
that Hislop had wrongfully omitted from the warning "any rights of appeal."
Again, however, we agree with the trial court's conclusion that the
warden's decision to issue a warning for violation of Department
regulations was well within the scope of his discretionary duties, and that
- measured by an objective test - omitting a description of plaintiff's
"defense" to the charge and notice of a right to appeal were not evidence
of a lack of good faith, i.e, non-compliance with "clearly-established
rights of which a reasonable person would have known." Nelson, 167 Vt. at
509, 712 A.2d at 384.
As to warden Rooks and Major Whitcomb, the complaint alleged that
they had participated in gathering evidence and formulating charges of
misconduct which resulted in the letter from Department counsel suspending
plaintiff's license without notice of her right to a hearing or notice of
the specific charges of misconduct. Plaintiff argues that the decision to
suspend her license without providing notice of her right to a hearing and
without providing specific notice of the charges, violated ministerial
duties and was objectively unreasonable. Nothing in the letter to
plaintiff, however, indicates that her license was suspended or
terminated. Indeed, plaintiff's complaint expressly acknowledged that she
contacted Agency counsel, who promptly informed her that she should
disregard the letter, and that any suspension would be preceded by a
hearing. Absent any suspension, we discern no basis for the claims
against Rooks or Whitcomb.
Plaintiff's claims against the State are derivative of the tort claims
against the individual defendants. Since we have held that the conduct
complained of was within the scope of the individual defendants'
discretionary duties, or simply failed to violate any established rights to
which plaintiff was entitled, we discern no basis for the claims against
the State. See 12 V.S.A. § 5601(e)(1) (state not liable for tort claims
arising out of state employee's exercise of, or failure to exercise,
discretionary duties); Hudson, 161 Vt. at 173-74 n.1, 638 A.2d at 565 n.1
(noting that although some courts have held that discretion in context of
official immunity is broader than discretionary function exception to
sovereign immunity, rationale of doctrine is same).
II.
Plaintiff next challenges the trial court's dismissal of her claims
against defendants premised on the Vermont Constitution. Plaintiff
alleged that the Department retaliated against her for public criticism of
the Department in violation of her free speech rights under Article 13.
She also claimed that the Department violated her due process rights under
Article 10 by suspending her license and failing to promptly inform her
of the nature of the charges and the right to a hearing.
The trial court determined that although the articles in question were
self-executing, the existence of an adequate administrative remedy
precluded a claim for monetary damages based directly on the Constitution.
See Shields v. Gerhart, 163 Vt. 219, 222-28, 658 A.2d 924, 927-30 (1995)
(whether damages are available for violation of state constitution involves
two-step inquiry, requiring determination as to whether provisions are
self-executing, and, if so, whether adequate alternative remedy
nevertheless counsels against recognition of private claim). The trial
court noted, in this regard, that plaintiff had already effectively
availed herself of administrative relief by contacting the Agency and
receiving prompt assurance that she was not suspended and that any
discipline would be preceded by a hearing. One month later, plaintiff was
formally notified of the misconduct charges and eventually entered into a
settlement agreement with the Department.
We agree that plaintiff was not entitled to damages under the
Constitution, although for reasons even more basic than those cited by the
trial court. See Harris v. Town of Waltham, 158 Vt. 477, 479-80 n.1, 613 A.2d 696, 697-98 n.1 (1992) (Court often affirms rulings on grounds
different from trial court). Assuming, without deciding, that a license
to assist without compensation in the rehabilitation of sick or injured
animals represents a protectable interest under the Constitution, and
that monetary damages are available for an infringement of such an
interest, the evidence here nevertheless failed to demonstrate any
appreciable deprivation to plaintiff. The Department's letter merely
informed plaintiff that her permit was "under review," directed that she
not "obtain any animals not currently in [her] possession," and advised
that additional sub-permittees would not be approved during the review
period.
Nothing contained in the letter purported to terminate - or threatened
to terminate - plaintiff's permit, and she was informed by the Agency's
counsel that her license was not suspended. As for the restrictions on
plaintiff's ability to take in additional animals or appoint sub-permittees
during the review process, the regulations governing wildlife
rehabilitators broadly authorize the Commissioner to impose conditions
upon a license. We thus perceive no compensable loss to plaintiff as a
result of these temporary measures. Nor do we perceive any deprivation,
or any violation of due process, resulting from plaintiff's being informed
that her permit was "under review." A preliminary warning of this nature
does not, in our view, trigger the due process obligations of notice of the
charges and the right to a hearing. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985) (due process requires that public
employees receive notice of charges and opportunity for hearing in advance
of termination); In re Towle, 164 Vt. 145, 153, 665 A.2d 55, 61 (1995)
(same).
Nor are plaintiff's allegations of continuing discrimination adequate
to support a claim for relief. The complaint alleged that since the
settlement agreement, the Department had "subjected
[her] to discriminatory treatment, including failure to answer routine
inquiries, and refusal or extraordinary delay in granting otherwise
routine approvals." The bare allegation of "discriminatory treatment" is
insufficient to state a claim for relief, see In re American Express Co.,
39 F.3d 395, 400-401 n.3 (2d Cir. 1994), and the Department's failure to
answer "routine inquiries" and delays in granting "routine approvals" do
not amount to a deprivation of a protected interest sufficient to
establish "retaliation" or to trigger due process safeguards. See Goss v.
Lopez, 419 U.S. 565, 576 (1975) (interests that can be characterized as de
minimis are beyond scope of due process clause); Bordelon v. Chicago Sch.
Reform Bd. of Trustees, 233 F.3d 524, 530 (7th Cir. 2000) (loss of
"professional satisfaction" and other non-pecuniary dignitary interests
resulting from transfer of school principal did not constitute compensable
loss under due process clause); Pitts v. Board of Educ., 869 F.2d 555, 556
(10th Cir. 1989) (two day suspension with pay did not deprive teacher of
compensable property interest).
Finally, we agree with the trial court's conclusion that, absent any
basis for an award of monetary damages or claim for injunctive relief
under the Vermont Constitution, there is no basis for a declaratory
judgment action premised on the same factual allegations. Cf. All Cycle,
Inc. v. Chittenden Solid Waste Dist., 164 Vt. 428, 434-35, 670 A.2d 800,
804 (1995) (request for declaratory relief not mooted where declaration of
constitutionality of government conduct was predicate to award of damages
in § 1983 claim).
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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Footnotes
FN1. The complaint expressly omitted Commissioner Elser from any state tort
claims.
FN2. Plaintiff has framed the issue as whether the issuance of an accurate
investigative report is a ministerial or discretionary act, not as whether
the officer may be said to have acted in "good faith" in allegedly issuing
a knowingly false report. Accordingly, we do not address the latter
question.
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