States Attorneys are “high executive officers” who have absolute immunity from tort liability for all conduct within the general authority of their office, including personnel decisions, regardless of whether the conduct is closely associated with the litigation process.

O’Connor v. Donovan, 2012 VT 27 (Burgess, J.)


Plaintiff police officer filed a complaint against defendant State’s Attorney, stating claims for defamation, intentional infliction of emotional distress, and intentional interference with plaintiff’s employment, for conduct that included meeting with plaintiff’s supervisors to criticize his job performance and falsely accuse him of dishonesty; declining to file charges based on plaintiff’s affidavits; threatening not to work with plaintiff criticizing plaintiff’s work; impugning plaintiff’s honesty to other prosecutors; giving false testimony in a civil suit against plaintiff; and “leaking” harmful information about plaintiff to criminal defense attorneys. The principal question presented by this appeal is whether, and to what extent, a state’s attorney who serves as a county’s chief law enforcement officer is entitled to official immunity from civil liability for the allegedly tortious conduct. The trial court on summary judgment held that liability for the acts complained of was precluded by either qualified or absolute immunity, or was otherwise barred. We conclude that the State’s Attorney was entitled to absolute immunity, and therefore affirm.


Our early official-immunity decisions distinguish common-law immunity applicable to state law claims from the federal immunity doctrine applicable to § 1983 claims. The former provides absolute immunity for “high executive” officials such as the attorney general and agency heads for acts committed within the scope of their authority and only qualified immunity for lower level officials.  Levinsky v. Diamond, 151 Vt. 178, 185 (1989) (Attorney General and Commissioner of Welfare as the “highest executive officers in their respective governmental units” entitled to absolute immunity from state law claims if the acts complained of “were performed within the general authority of those offices.”) The latter employs a purely functional analysis largely divorced from the status of the official in question. 


 In Muzzy v. State, 155 Vt. 279 (1990) the trial court granted summary judgment in favor of a state’s attorney, and we affirmed, holding that “acts related to the dismissal or processing of an information, as in the instant case, are within the prosecutorial function and therefore absolutely immune from civil suit.” Id. at 281. A footnote arguably limits this immunity to prosecutors’ quasi-judicial functions as judicial officers as distinct from their role as executive officers. Id. at 280, n.* We decline plaintiff's invitation to so limit defendant's immunity here.


In light of the considerable statutory and constitutional powers accorded Vermont’s state’s attorneys, we hold that state’s attorneys have the same immunity for “high executive officials” that their State counterpart, the Attorney General, enjoys for conduct within the general authority of the office. Levinsky, 151 Vt. at 185. To the extent that Muzzy suggests otherwise, it is disapproved. Subsequent decisions that may have interpreted Muzzy to confine a state’s attorney’s absolute immunity in state tort actions to those acts closely associated with the litigation process, such as Huminski v. Lavoie, 173 Vt. 517, 520-21(2001) (mem.), are to that extent overruled.


This holding has no effect on the immunity standard governing federal claims. Here we are concerned solely with state law claims, specifically defamation, intentional interference with employment, and intentional infliction of emotional distress.


Under the common law immunity standard applicable to the state law claims, we conclude the acts complained of fall within the general scope of defendant’s authority as Chittenden County State’s Attorney, thereby entitling him to absolute immunity from suit.  It was well within defendant’s authority as state’s attorney to decline to file criminal charges or search-warrant applications based on his dissatisfaction with plaintiff’s affidavits. It was equally within defendant’s general authority as the chief county law enforcement officer to review plaintiff’s job performance; discuss it with other prosecutors in the office, plaintiff’s supervisors, and the State Police; and take such measures as defendant deemed fit—including declining to work with plaintiff in the future. Supervising the investigative activities of police officers that result in the referral of cases for prosecution and reviewing those matters with other law enforcement personnel falls within the general oversight authority of the state’s attorney as the chief law enforcement officer in the county. Disclosing nonprivileged information concerning plaintiff’s performance as a law enforcement officer also falls within defendant’s general authority and responsibility as chief law enforcement officer to ensure the effective and uniform enforcement of the law. Plaintiff’s allegation that defendant made patently false and defamatory statements and that defendant was allegedly motivated by ill will or a malicious design to interfere with plaintiff’s livelihood does not diminish the absolute immunity afforded conduct otherwise within the general scope of defendant’s authority.