Czechorowski v. State
Annotate this Case
Czechorowski v. State (2003-086); 178 Vt. 524; 872 A.2d 883
2005 VT 40
[Filed 22-Mar-2005]
ENTRY ORDER
2005 VT 40
SUPREME COURT DOCKET NO. 2003-086
OCTOBER TERM, 2003
Koshen Henri Czechorowski } APPEALED FROM:
}
}
v. } Chittenden Superior Court
}
State of Vermont, et al. }
} DOCKET NO. S0599-99 CnC
Trial Judge: Matthew I. Katz
In the above-entitled cause, the Clerk will enter
¶ 1. Plaintiff Koshen Czechorowski appeals from a summary
judgment dismissing his tort claims against the State of Vermont and Dena
Monahan, an attorney for the Department of Aging and Disabilities.
Plaintiff contends the court erred holding that the claims were barred on
the basis of sovereign and official immunity. We affirm in part, reverse
in part, and remand for further proceedings.
¶ 2. The material facts may be summarized as follows. Plaintiff
served as a care giver and painting instructor for L.B., an adult male
diagnosed as mentally retarded, schizophrenic, and autistic. L.B. is
unable to verbalize more than a few words at a time, but in 1996, through a
technique known as "facilitated communication" (FC), L.B. alleged that
plaintiff had raped and sexually abused him.(FN1) The allegations were
reported to the Department of Aging and Disabilities, which launched an
immediate investigation. See 33 V.S.A. § 6906 (commissioner shall cause an
investigation to commence within forty-eight hours of report of abuse).
¶ 3. After completing the interviews and site visits prescribed by
statute, the Department investigator, Jody Blinn, initially recommended
that the report of abuse be found unsubstantiated. See id. § 6906(c) (upon
completion of investigation, written report "recommending a finding of
substantiated or unsubstantiated" shall be submitted to commissioner).
Although a copy of Blinn's initial report was not produced, she
acknowledged in her discovery responses that she had initially recommended
a finding that the alleged abuse was unsubstantiated, having concluded that
the information obtained during the investigation was inconclusive. She
based that opinion on certain inconsistencies in L.B.'s statements, the
lack of physical evidence of rape from a medical exam conducted shortly
after the allegations surfaced, plaintiff's positive history as a foster
parent, and concerns about L.B.'s credibility due to a prior incident
involving similar allegations against another individual which, after
investigation, had been found to be unsubstantiated. Blinn admitted,
however, that her supervisor had instructed her to re-write the report to
find that the allegation was substantiated.
¶ 4. Blinn's revised report of February 25, 1997, omitted
reference to the specific exculpatory factors cited above, except for a
description of plaintiff's positive history as a foster parent. In
addition, the revised report emphasized the inculpatory evidence and the
consistencies among the incriminating facts. While omitting, for example,
reference to certain inconsistencies in two of the six FC sessions, the
revised report noted the consistencies among the other four FC sessions
where L.B. described the alleged assaults. In another example, the report
summarized the report of the medical doctor, Dr. Brown, who had examined
L.B., stating that according to his medical examination, the doctor
believed there was evidence "that L.B. was sexually abused." The revised
report did not specifically state, however, that Dr. Brown found no
physical evidence of abuse, but rather based his conclusions on "eye
contact" and L.B.'s "direct response to the examiners [sic] questions."
¶ 5. The Department notified plaintiff that it intended to
substantiate the allegation of abuse and provided him with a copy of the
revised report. Plaintiff, in response, requested an administrative hearing
before the Commissioner. See 33 V.S.A. § 3306(c) (if recommendation of
investigative report is for finding of substantiation, person may request
hearing before Commissioner to dispute recommendation). The Department's
general counsel, defendant Dena Monahan, then reviewed the report and
supporting documents in preparation for the Commissioner's hearing.
¶ 6. Following the administrative hearing, Monahan discussed the
case with the Commissioner, and prepared a draft decision at his request.
The final decision, signed by the Commissioner on June 13, 1997,
substantiated the report that plaintiff had sexually abused L.B. Plaintiff
appealed that decision to the Human Services Board. See id. § 6906(d)
(within thirty days of notice that report has been substantiated, person
may apply to Board for relief on ground that it is unsubstantiated, and
Board shall hold a fair hearing under 3 V.S.A. § 3091). Plaintiff
requested additional discovery prior to the Board hearing. Monahan, in
response, declined to disclose the records of any complaints made by L.B.
against other care providers on the basis of confidentiality, but complied
with the hearing officer's order to produce Dr. Brown's medical report and
lab results and Jody Blinn's case notes and other evidence.
¶ 7. The parties disputed L.B.'s competence to testify and the
admissibility of his prior FC statements. Monahan attempted to demonstrate
L.B.'s ability to communicate via FC at the fair hearing. All parties
agreed that the demonstration was a failure, and the proceedings were
continued. Shortly thereafter, Monahan informed the Board that the
Department had decided to withdraw the substantiated-abuse finding. The
Board later granted-over the Department's opposition-plaintiff's motion to
reverse the Department decision and destroy the Department's records
pursuant to 33 V.S.A. §§ 6906(e), (g).(FN2) The State did not appeal this
decision.
¶ 8. Plaintiff subsequently filed this civil suit against the
State, the Department's investigator Jody Blinn, the Department's general
counsel and prosecuting attorney Dena Monahan, and five other parties,
including L.B.'s doctor and other care givers. The claims against Blinn
and Monahan alleged malicious prosecution and intentional and reckless
infliction of emotional distress. The claim against the State alleged
liability for Blinn and Monahan's acts and omissions under the Vermont Tort
Claims Act. See 12 V.S.A. § 5601(a) (establishing state liability for
negligent or wrongful acts or omissions of state employees made within
scope of their employment). On cross-motions for summary judgment, the
trial court dismissed all of plaintiff's claims, holding that: (1) the
State had sovereign immunity; (2) Blinn had qualified immunity; and (3)
Monahan had absolute immunity. Monahan, the court concluded, had "acted in
a manner analogous to that of a public prosecutor" and therefore was
absolutely immune from suit for "all her actions before the Commissioner,
her in-court conduct [before the Board], and her reliance on Ms. Blinn's
investigation report." Plaintiff settled out of court with the other
defendants. The claims against Blinn were apparently discharged in
bankruptcy without final resolution. Plaintiff's appeal is thus limited to
the decision in favor of the State and Monahan.
¶ 9. In reviewing a summary judgment, we use "the same standard as
the trial court, and affirm the granting of a motion for summary judgment
if there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law." Springfield Hydroelectric Co. v.
Copp, 172 Vt. 311, 313-14, 779 A.2d 67, 70 (2001) (quotations omitted). In
applying this standard, we regard as true all allegations of the nonmoving
party supported by admissible evidence and afford the nonmoving party the
benefit of all reasonable doubts and inferences. King v. Gorczyk, 2003 VT
34, ¶ 7, 175 Vt. 220, 825 A.2d 16.
¶ 10. Plaintiff contends the trial court erred by extending the
doctrine of official immunity to Monahan's actions during the proceedings
before the Commissioner and the Board. Vermont law recognizes two levels
of immunity for the official acts and omissions of public employees:
absolute immunity and qualified immunity. LaShay v. Dep't of Social &
Rehab. Servs., 160 Vt. 60, 64, 625 A.2d 224, 226-27 (1993). Absolute
immunity protects judges and the state's highest executive officers,
including prosecutors, from civil suits for certain actions "closely
associated" with their judicial or prosecutorial activities,
including-among other things-the decision whether to prosecute and the
prosecution of the action. Muzzy v. State, 155 Vt. 279, 280, 583 A.2d 82,
83 (1990). Qualified immunity applies to prosecutorial functions outside
the area of advocacy, such as investigation or administration, as well as
the conduct of lower level public officials so long as they are: "(1)
acting during the course of their employment and acting, or reasonably
believing they were acting, within the scope of their authority; (2) acting
in good faith; and (3) performing discretionary, as opposed to ministerial,
acts." Murray v. White, 155 Vt. 621, 626-27, 587 A.2d 975, 978 (1991);
accord LaShay, 160 Vt. at 65, 625 A.2d at 227.
¶ 11. In Vermont, as nationally, "[m]ost public officials are
entitled only to qualified immunity." Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993); accord LaShay, 160 Vt. at 64-65, 625 A.2d at 227 (absolute
immunity applies only to judges, legislators, and the state's highest
executive officers). "In most cases, qualified immunity is sufficient to
protect public officials who are required to exercise their discretion and
the related public interest in encouraging the vigorous exercise of
official authority." Buckley, 509 U.S. at 268 (quotations omitted).
Indeed, except for those special situations where absolute immunity is
essential for the conduct of public business, any protection greater than
qualified immunity "would seriously erode the protection provided by basic
constitutional guarantees" and violate the principle that " '[n]o man in
this country is so high that he is above the law.' " Butz v. Economou,
438 U.S. 478, 505-06 (1978) (quoting United States v. Lee, 106 U.S. 196, 220
(1882)).
¶ 12. In determining whether qualified immunity applies to protect
a particular public function or official, we are guided principally by "the
purposes behind" the doctrine. Hudson v. Town of East Montpelier, 161 Vt.
168, 172, 638 A.2d 561, 564 (1993). As we explained in Hudson, qualified
immunity serves to protect government employees from exposure to personal
tort liability that would: "(1) hamper or deter those employees from
vigorously discharging their duties in a prompt and decisive manner, and
(2) unfairly subject employees who have a duty to exercise discretion
regarding matters of public policy to the judgment of those acting within a
judicial system that is ill-suited to assess the full scope of factors
involved in such decisionmaking." Id.
¶ 13. In light of these decisions, we conclude that Monahan is
entitled to qualified immunity for her conduct as general counsel to the
Department. As Monahan explained in her affidavit in support of the motion
for summary judgment, it was her practice as general counsel to review the
investigator's report and supporting documents when an accused person
applied to the Commissioner for review of a substantiated report of abuse.
Only if the Commissioner affirmed the report and the person appealed to the
Board did Monahan then "assume the duties of a public prosecutor" and
engage in the kinds of functions closely associated with that role. These
included, as she stated, "respond[ing] to any discovery requests,"
"prepar[ing] and submit[ing] legal memoranda," "determin[ing] what evidence
to rely on at hearing," "prepar[ing] the witnesses to testify,"
"represent[ing] DAD at any required hearings," and ultimately
"determin[ing] whether to proceed with or discontinue a particular case."
Thus, before plaintiff appealed to the Board, Monahan's activities as
general counsel to the Department-consulting with the Commissioner,
rendering advice, and drafting the decision-were not strictly prosecutorial
in function, and therefore were not entitled to absolute immunity. They
were, however, functions that unquestionably required the exercise of
discretion and judgment concerning important issues before the Department,
and therefore were well within the protection of the qualified immunity
doctrine. Id.
¶ 14. Nor is there any question that, in her role as public
advocate defending appeals before the Board, Monahan's functions were
closely analogous to those of a government prosecutor and therefore were
entitled to absolute immunity. Indeed, both state and federal courts have
held that government attorneys engaged in civil enforcement actions are
analogous to criminal prosecutors, and therefore are equally entitled to
absolute immunity. The seminal decision in this area is Butz, where the
United States Supreme Court held that a Department of Agriculture attorney
who had initiated and pursued an enforcement action to revoke the
registration of a commodity futures commission merchant was entitled to
absolute immunity in a later damage action. 438 U.S. at 512-17. As the
high court explained, "the decision to initiate administrative proceedings
against an individual or corporation is very much like the prosecutor's
decision to initiate or move forward with a criminal prosecution," and is
equally likely to be "distorted if their immunity from damages arising from
that decision was less than complete." Id. at 515.
¶ 15. Subsequent state and federal decisions have applied similar
reasoning to shield government attorneys in a variety of civil contexts.
See, e.g., Gray v. Poole, 243 F.3d 572, 574 (D.C. Cir. 2001) (attorneys
from District of Columbia corporation counsel's office enjoy absolute
immunity from liability for conduct in initiating and prosecuting child
neglect action); Romano v. Bible, 169 F.3d 1182, 1187-88 (9th Cir. 1999)
(attorney general absolutely immune for prosecuting claims before the
California state gaming commission); Mendenhall v. Goldsmith, 59 F.3d 685,
691-92 (7th Cir. 1995) (prosecuting attorney entitled to absolute immunity
for bringing civil forfeiture action); Zar v. S.D. Bd. of Exam'rs of
Psychologists, 976 F.2d 459, 466-68 (8th Cir. 1992) (attorney's actions
before medical board of examiners protected by absolute immunity); State v.
Superior Ct., 921 P.2d 697, 701 (Ariz. Ct. App. 1996) (assistant attorney
general who filed and prosecuted civil injunction action against adult care
facility on behalf of Department of Health Services entitled to absolute
immunity from later malicious prosecution complaint); State Bd. of
Chiropractic Exam'rs v. Stjernholm, 935 P.2d 959, 973 (Colo. 1997)
(assistant attorney general entitled to absolute immunity for actions in
prosecuting state's case for suspension of chiropractor's license); Hanson
v. Flores, 486 N.W.2d 294, 296 (Iowa 1992) (assistant county attorney who
filed support action against putative father entitled to absolute
immunity); Black v. Clegg, 938 P.2d 293, 296 (Utah 1997) (bar counsel
entitled to absolute immunity from suit for actions in disciplinary
proceeding).
¶ 16. These decisions leave no doubt that Monahan, as the State's
advocate before the Board, enjoyed absolute immunity from suit for her
activities within that context. The underlying policy reasons that protect
criminal prosecutors from tort liability apply with equal force to public
attorneys engaged in civil enforcement actions to protect vulnerable adults
in nursing homes or other institutional settings from abuse and neglect.
The State's interest in the vigorous and uninhibited enforcement of the
abuse-prevention law is obviously strong, and the public attorney defending
the action must exercise his or her judgment over a range of sensitive
decisions that are bound to provoke anger, second-guessing, and retaliatory
citizen suits, as this case amply attests. The State's vital interest in
the free and independent judgment of those charged with the duty of
enforcing the elder-abuse prevention law thus compels the extension of
absolute immunity to defendant Monahan's representation of the Department
before the Board.
¶ 17. It remains to determine whether the trial court correctly
concluded that Monahan enjoyed immunity, qualified or absolute, from
plaintiff's claims. Although the allegations of the complaint and
subsequent pleadings are difficult to parse, liberally construed they
appear to state three basic claims against Monahan in her role as general
counsel to the Department. First, plaintiff contends that Monahan engaged
in improper ex parte contacts with the Commissioner in discussing the
allegations and drafting the Commissioner's decision. In this regard,
plaintiff argues that Monahan violated a ministerial duty under 3 V.S.A. §
813, a provision of the Administrative Procedure Act which provides
generally that "members or employees of any agency assigned to render a
decision or to make findings or fact or conclusions of law in a contested
case shall not communicate, directly or indirectly, in connection with any
issue of fact . . . [or] any issue of law . . . except upon notice and
opportunity for all parties to participate."
¶ 18. The claim is unpersuasive. As noted, Monahan served as the
Commissioner's general counsel-not as a separate party or prosecutor-in the
initial administrative hearing. Therefore, even assuming that § 813 is
applicable to hearings before the Commissioner, the statutory exceptions
apply. See 3 V.S.A. § 813(1) (agency decision maker may communicate with
other employees of the agency); id. § 813(2) (agency decision maker may
have aid and advice of one or more personal assistants). Furthermore,
Monahan's rendering of legal advice and assistance to the Commissioner was
plainly a discretionary function protected by qualified immunity. Courts
have long recognized that government attorneys engage in a variety of
tasks, including the rendering of legal advice and counsel, that require
the exercise of judgment and thus warrant the protection of qualified
immunity to ensure the free and unfettered exercise of that duty. See,
e.g., Burns v. Reed, 500 U.S. 478, 492-96 (1991) (qualified immunity
provides sufficient protection for prosecutors giving legal advice); Davis
v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998) (prosecutor entitled to
qualified immunity for acts of giving legal advice); Font v. Carr, 867 S.W.2d 873, 878 (Tex. App. 1994) (assistant district attorney may seek
qualified immunity for legal advice to sheriff relating to sufficiency of
security offered by bail bondsman). Nothing in the complaint or the
undisputed facts supports a finding that Monahan performed these
discretionary duties in bad faith.
¶ 19. Plaintiff next contends that Monahan knew or should have
known that the revised report of substantiated abuse was incomplete, and
that she violated ministerial duties by failing to investigate further. In
analyzing these claims, it is helpful to understand Monahan's role in the
investigatory process. Monahan stated without dispute that it was the
practice of the Department that general counsel did "not become involved in
cases of alleged abuse until the accused person seeks a Commissioner's
review. At that point, [general counsel] review[s] the investigator's
report and any supporting documents." As to what, if anything, Monahan
knew of the original report that the allegation of abuse was
unsubstantiated, we note that plaintiff did not allege, nor the does the
record evidence show, that Monahan was provided with the original report.
Blinn did allege in her response to plaintiff's statement of undisputed
facts that she had informed Monahan prior to the Commissioner's hearing
that she had recommended a finding of "unsubstantiated" in her original
report. Although she adduced no affidavit or other evidence to support the
statement, it is not disputed by plaintiff or Monahan.
¶ 20. Under these circumstances, it is certainly arguable that
Monahan should have investigated further to uncover the original report to
which Blinn had allegedly alluded (assuming that it still existed),
compared it with the revised report, and advised plaintiff and the
Commissioner of Blinn's original findings and recommendation. The elder
abuse statute provides that "[u]pon completion of the investigation, a
written report describing all evidence obtained and recommending a finding
of substantiated or unsubstantiated shall be submitted to the commissioner
or designee for final resolution." 33 V.S.A. § 6906(c) (emphasis added).
Indeed, the statute specifically defines a "substantiated report" as a
determination, after investigation, of abuse "based upon accurate and
reliable information." Id. § 6902(12). Thus, had the allegations and
evidence here suggested that Monahan intentionally withheld from plaintiff
non-privileged information contained in the original report, plaintiff
might have been able to show that Monahan violated a ministerial duty under
§ 6906(c).
¶ 21. The essence of the claim, however, is not that Monahan
intentionally withheld non-privileged information contained in the original
report, but rather that she was derelict in failing to "investigate
further" and uncover the original report and its findings. While this may
have been imprudent and even neglectful, we can not conclude that it
violated a ministerial duty under § 6906(c). The decision whether to
investigate further was a discretionary one, and therefore protected from
suit. It is worth recalling that the very purpose of qualified immunity is
to ensure that public officials will enjoy broad decision making discretion
free from the threat of liability for errors of judgment. See Malley v.
Briggs, 475 U.S. 335, 343 (1986) (qualified immunity leaves "ample room for
mistaken judgments"). The allegations and evidence here describe a
discretionary decision which, however ill advised, nevertheless falls
within the scope of qualified immunity.
¶ 22. Plaintiff further asserts that Monahan knew or should have
known that the allegations in the revised report were insufficient to
support its finding of abuse. He argues specifically that Monahan failed
to adequately analyze the evidence against him by neglecting, among other
things, to "read carefully" Dr. Brown's medical report, to investigate the
M.B. incident (L.B.'s unsubstantiated claim against a different care
giver), and to consider various inconsistencies in L.B.'s allegations.
Plaintiff implies that, absent these failures and omissions, Monahan would
have moved to dismiss the Commissioner's finding of abuse. It is unclear
whether the allegation is directed to Monahan solely in her role as general
counsel, or also as attorney for the Department before the Board. It is
clear that all of the conduct complained of lies at the core of Monahan's
discretionary judgment-whether as general counsel to the Department or as
advocate before the Board-to recommend, initiate, and pursue an enforcement
action, and thus falls squarely within the scope of both the qualified and
absolute immunity afforded such decisions. See Reed, 500 U.S. at 492-96
(qualified immunity provides ample protection for prosecutors giving legal
advice); Buckley, 509 U.S. at 269 (prosecutor absolutely immune from suit
for acts taken in "the initiation and pursuit" of prosecution).
¶ 23. Along the same lines, plaintiff asserts that Monahan acted
unreasonably in failing to question the reliability of L.B.'s facilitated
communications. As noted, Monahan's conduct in assessing the evidence and
determining whether, in effect, to counsel in support of substantiation
falls squarely within the scope of her discretionary function as general
counsel to the Department and her functions as advocate before the Board,
and is thus immune from suit. Reed, 500 U.S. at 492-96; Buckley, 509 U.S. at 269. Furthermore, although plaintiff claims that FC has been shown to
be utterly unreliable, the test of a government actor's "good faith" in
this context requires that we measure the reasonableness of the conduct "in
relation to settled, clearly-established law." Cook v. Nelson, 167 Vt.
505, 509, 712 A.2d 382, 384 (1998). Although some jurisdictions have
rejected evidence based on FC, see, e.g., Storch v. Syracuse Univ., 629 N.Y.S.2d 958, 964 (N.Y. Sup. Ct. 1995), we discern nothing in the record or
the law to suggest that a reasonable person in Monahan's position could not
have relied on the report's conclusion that L.B.'s claims were credible.
See, e.g., Covell ex rel. Johnson v. County of Oswego, 165 F. Supp. 2d 241,
249 (N.D.N.Y. 2001) (caseworker who relied on autistic child's allegations
of sexual abuse through FC did not violate clearly established standard and
therefore was entitled to qualified immunity). Thus, we cannot say that,
in relying upon L.B.'s testimony, Monahan knew or should have known that
she was violating plaintiff's well established rights.
¶ 24. Nor did the existence of conflicting or exculpatory evidence
establish that Monahan's decisions as general counsel were unreasonable or
in bad faith. Her actions must be considered objectively reasonable if "an
officer of reasonable competence could have made the same choice in similar
circumstances." Amy's Enters. v. Sorrell, 174 Vt. 623, 625, 817 A.2d 612,
617 (2002) (mem.). That was the plainly the case here. L.B. gave four
separate statements describing the abuse in detail. Although he
communicated via FC, he used three different facilitators, none of whom
knew what L.B. had told the others. The four FC statements were consistent
in their details. While another FC statement was inconclusive-that is,
L.B. accused plaintiff of abuse yet also stated that he still liked
plaintiff and would work with him again-L.B. never retracted his
allegations of abuse. Additionally, L.B. repeated the allegations
directly, without using FC, in brief bursts of three or four words to his
doctor and his guardian. Thus, a reasonable person in Monahan's position
could have concluded that there was sufficient evidence to warrant
proceeding with the administrative hearing. Furthermore, the decision to
proceed on the evidence before the Board was within the scope of Monahan's
core prosecutorial functions, and therefore enjoyed absolute immunity.
Buckley, 509 U.S. at 269. Accordingly, the requisites for application of
qualified and absolute immunity were satisfied.
¶ 25. Plaintiff also claims that Monahan violated a mandatory
statutory duty under 33 V.S.A. § 6906(c), by declining to disclose
information related to L.B.'s unsubstantiated earlier claim against another
care provider, M.B.(FN3) Plaintiff did not dispute Monahan's sworn statement
that she was unaware of the M.B. incident until plaintiff's counsel
mentioned it just prior to the Board hearing, when Monahan was serving in
her prosecutorial role. Nor does plaintiff dispute Monahan's statement
that she declined a request for disclosure of information related to the
incident on the ground that it was confidential under 33 V.S.A. § 6911(a).
This statute provided, at the time, that information obtained through
reports and investigations of elder abuse "shall remain confidential" and
that "[w]ritten records shall be disclosed only to" an enumerated list of
persons and agencies, including the person reported to have committed the
abuse. Third persons subject to a different complaint by the same elderly
or disabled adult are not among the persons statutorily entitled to the
investigative records under § 6911, although, as noted, § 6906(c) entitles
the subject of a complaint to "all evidence obtained" during an
investigation.
¶ 26. How these two statutory provisions relate for purposes of
disclosure of the unrelated investigation report involving M.B. is unclear.
Monahan arguably could have disclosed the M.B. incident to plaintiff,
redacting any information necessary to protect the privacy interests of
third persons. Monahan's conclusion that the information was privileged,
however, was a discretionary judgment within her core functions as an
advocate before the Board, and therefore was protected by absolute
immunity. See, e.g., State v. Superior Ct., 921 P.2d at 701 ("As to the
discovery violation, it is clear that absolute immunity applies, since the
conduct of discovery is both quasi-judicial and within the prosecutor's
authority."); Knapper v. Connick, 681 So. 2d 944, 950 (La. 1996)
(determination of what information must be turned over to defense "is an
integral part of the prosecutor's responsibilities as an advocate for the
state" and accordingly "entitled to absolute immunity"). Furthermore, even
if we were to conclude that Monahan's decision to withhold the information
lay outside the core of her prosecutorial functions, and was therefore
protected by qualified immunity, the result would be the same; for we can
not conclude that plaintiff's entitlement to the information was so clear
under the statutory scheme as to render Monahan's decision patently
unreasonable and a clear violation of established law. See Cook, 167 Vt. at
509, 712 A.2d at 384 (analyzing official's conduct in relation to clearly
established law).
¶ 27. Plaintiff additionally claims that, by ultimately
withdrawing rather than seeking to reverse the Commissioner's decision,
Monahan breached a ministerial duty under 33 V.S.A. § 6906(c), which
provides that "[u]pon completion of the investigation, a written report . .
. shall be submitted to the commissioner or designee for final
resolution." Even assuming that withdrawal of the report fell short of a
"final resolution," the duty, if any, to render a "final resolution" is the
Commissioner's. Accordingly, we find no basis to hold Monahan liable under
this section.
¶ 28. Finally, plaintiff argues that the trial court erred by
immunizing the State from suit for the actions of its employees Blinn and
Monahan. Plaintiff's complaint against the State alleged that "[a]s a
result of Blinn's and Monahan's . . . actions . . . , the [S]tate of
Vermont is liable to the Plaintiff for the prosecution of the Plaintiff
without probable cause and with malice." Thus, the claims against the
State are derivative of the claims against the individual defendants, and
because we have held that Monahan's challenged conduct was protected by
absolute and qualified immunity, the State claims predicated thereon must
also fail. See Winfield v. State, 172 Vt. 591, 594, 779 A.2d 649, 653
(2001) (mem.) ("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.").
¶ 29. Plaintiff also alleged, however, that defendant Blinn
violated a ministerial duty, under 33 V.S.A. § 6906(c), by failing to
include in her revised report "all evidence" uncovered by her
investigation. In this instance, we conclude that the statutory duty is
clear and non-discretionary, and the allegations and the evidence could
support a finding that a reasonable official in Blinn's position had no
reasonable basis to submit a less than complete report including all of the
exculpatory evidence. Accordingly, although Blinn was apparently
discharged in bankruptcy, the derivative claim against the State remains.
To state a claim against the State, however, plaintiff must establish that
it is liable for the negligence of an employee "to the same extent as a
private person would be liable." 12 V.S.A. § 5601(a); Sabia v. State, 164
Vt. 293, 301, 669 A.2d 1187, 1193 (1995) (plaintiff must establish private
analog for action based on state agency's failure to perform its statutory
duty to assist children seeking protection from reported and substantiated
abuse). The test is whether the allegations state a cause of action
"comparable" to a recognized cause of action against a private person.
Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 498
(1993). "If no such analog to private action exists, suit against the State
is precluded." Amy's Enters., 174 Vt. at 623, 817 A.2d at 616.
¶ 30. Plaintiff's claims against Blinn consisted of malicious
prosecution and intentional infliction of emotional distress. To state a
common law claim for malicious prosecution, a plaintiff must demonstrate
that a legal proceeding was instituted with malice and without probable
cause, that it terminated in favor of the plaintiff, and that it resulted
in damages to the plaintiff. Siliski v. Allstate Ins. Co., 174 Vt. 200,
203, 811 A.2d 148, 151 (2002). Although we express no opinion as to the
merits, plaintiff's allegations that Blinn knowingly and maliciously
withheld exculpatory information in order to submit a substantiated report
of abuse which she knew lacked probable cause, resulting in physical and
emotional injury, plainly parallel the basic elements of a common law
malicious prosecution claim. Indeed, we note that malicious prosecution
claims are routinely brought against state and local prosecutors, law
enforcement officers, and investigators for their actions in connection
with the filing of criminal proceedings. See, e.g., Levinsky v. Diamond,
140 Vt. 595, 597, 442 A.2d 1277, 1279 (1982), overruled on other grounds by
Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990) (claim of malicious
prosecution against attorneys in the attorney general's office); Cook, 167
Vt. at 507, 712 A.2d at 382-83 (malicious prosecution action against state
police officer for issuing citation charging plaintiff with criminal
offense). Malicious prosecution actions are also commonly brought against
non-law enforcement officials, such as social work investigators and
caseworkers, for deliberate misconduct resulting in the filing of allegedly
unfounded legal proceedings. See, e.g., Murray, 155 Vt. at 623-24, 587 A.2d at 976 (malicious prosecution action against former state agency
caseworker by alleged perpetrator of sexual assault based on allegations
that caseworker conducted inadequate investigation and withheld exculpatory
information). Although these cases do not specifically address the private
analog issue, they demonstrate a longstanding recognition that the common
law malicious prosecution action represents a viable private analog for
claims against the State and public officials arising from the bringing of
allegedly unfounded legal proceedings.
¶ 31. In light of these decisions, we have little difficulty
finding a private analog for plaintiff's malicious prosecution claim
against Blinn based on an alleged violation of the statutory duty, under 33
V.S.A. § 6906(c), to disclose exculpatory evidence uncovered during her
investigation. Although the trial court here concluded otherwise, its
ruling was based on a conclusory finding that the State's duty to
investigate allegations of abuse "is a uniquely public one-thrust upon the
government as it is not upon private parties." As we have explained,
however, the purpose of the private analog provision "is not to bar . . .
suits claiming injuries based on the breach of duties performed by
government employees performing government services," but merely to prevent
government from being visited with novel and unprecedented liabilities
untethered from any comparable common law action. Sabia, 164 Vt. at 302,
669 A.2d at 1193. That is plainly not the case here. We conclude,
similarly, that plaintiff's claim for intentional infliction of emotional
distress, premised on the allegation that Blinn acted outrageously by
intentionally or recklessly disregarding her statutory duty, is analogous
to suits against private parties, and therefore may also proceed. See id.
at 306 n.6, 669 A.2d at 1196 n.6 (recognizing private analog for
plaintiff's claim for intentional infliction of emotional distress premised
on state agency's alleged violation of statutory duty to assist children
when evidence supports reports of abuse or neglect). Accordingly, we
reverse that portion of the judgment granting the State's motion for
summary judgment as to these specific claims, and remand for further
proceedings.(FN4)
That portion of the judgment granting summary judgment and dismissing
the claims against the State based on investigator Blinn's alleged
violation of a ministerial duty under 33 V.S.A. § 6906(c) to disclose all
evidence obtained is reversed, and the matter is remanded for further
proceedings on this issue. In all other respects, the judgment is
affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
Note: Chief Justice Amestoy sat for oral argument but did not
participate in this decision.
---------------------------------------------------------------------------
Footnotes
FN1. In FC, a facilitator holds a disabled person's arm or hand over a
keyboard and enables the disabled person to "communicate" by spelling out
words. The parties disputed the validity of FC. Plaintiff presented an
expert's affidavit stating that FC has been discredited and that clinical
research shows that the content of FC is, "without exception," determined
by the facilitator, either consciously or subconsciously. Defendant
Monahan agreed, for the purpose of her summary judgment motion, that the
validity of FC was an issue about which the experts in the field disagreed.
FN2. At the time of the Board's decision, the statute directed the
Department to destroy records of unsubstantiated reports within ninety
days. See 33 V.S.A. §§ 6906(e),(g) (1998). In 2002, those provisions were
amended to require the Department to keep such records confidential for six
years, and to destroy them thereafter so long as no court proceeding is
brought pursuant to § 6906(c). See 2001, No. 135 (Adj. Sess.), § 5.
FN3. With respect to Monahan's alleged duty to disclose under 33 V.S.A. §
6906(c), the sole allegation set forth in plaintiff's complaint was the
failure to disclose information relating to the prior unsubstantiated
complaint against M.B.
FN4. The parties did not raise, and we therefore do not address,
issues relating to whether intentional torts such as malicious prosecution
or intentional infliction of emotion distress may be committed "within the
scope of employment" under 12 V.S.A. § 5601(a) for purposes of holding the
State derivatively liable for the alleged misconduct of its employees. See
Sweet v. Roy, 173 Vt. 418, 431-32, 801 A.2d 694, 704 (2002) (discussing
whether, and under what circumstances, employer may be vicariously liable
for employee's intentional torts).
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