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.

Public records / Constitutional law. Internal police investigations are not public records as relating to “the management and direction of a law enforcement agency.” Accountability Clause of Vermont Constitution, Chapter I, Article 6, is not self-executing.

Rutland Herald v. Vermont State Police, 2012 VT 24 (Skoglund, J.) (Dooley, J., concurring in part and dissenting in part.)

This case concerns public access to records of a criminal investigation of possession of child pornography by employees of the Criminal Justice Training Council at the Vermont Police Academy.  The Herald appeals from a trial court decision granting summary judgment to the State denying disclosure of the records under the Access to Public Records Act (PRA), 1 V.S.A. §§ 315-320.  The court concluded that the records sought by the Herald, which included inquest records, were exempt from disclosure as “records dealing with the detection and investigation of crime” under § 317(c)(5).   The Herald has not challenged this threshold determination, and we accept the trial court’s characterization of these records. The Herald asserts that disclosure is appropriate because the investigation is complete, and the public interest favors disclosure.  The Herald also argues  that the records at issue must be disclosed because they “relat[e] to [the] management and direction of a law enforcement agency”  within the exception to the criminal record exemption, 1 V.S.A. § 317(c)(5).  Finally the Herald asserts that the Vermont Constitution, particularly Chapter I, Article 6, mandates disclosure. We reject these arguments and affirm.

The statute is broadly worded and it provides a categorical exemption for certain records irrespective of their specific content. The statute exempts “records dealing with the detection and investigation of crime, including those maintained on any individual or compiled in the course of a criminal or disciplinary investigation.”  1 V.S.A. § 317(c)(5) (emphases added).  Investigation records are “maintained” or kept on individuals on an ongoing basis, after active “detection and investigation” is complete.   The words “maintained” and “compiled” suggest that the Legislature anticipated keeping investigatory records exempt after an active investigation had ended.    Had the Legislature intended the exemption to exist only during an ongoing investigation, it could have been much more specific.  The PRA  contains other exemptions with specific temporal limitations. Other state courts have  determined that, in the absence of specific temporal language, there is no temporal limitation on an exemption of disclosure of records related to the detection or investigation of crime.  Because § 317(c)(5) provides a record-based, rather than content-based, limitation, it is not appropriate to read a temporal limit or a balancing test into the statute.  

Section 317(c)(5) contains an exception that makes public “records relating to management and direction of a law enforcement agency.”  According to the Herald, any investigation into illegal activity by law enforcement individuals, by definition, falls within this proviso.  The Herald’s interpretation finds no support in the plain language of the statute or in its legislative history. The statute draws no distinction between those records that deal with a criminal investigation of a police officer, and those involving a criminal investigation of other citizens. Indeed the Legislature has specifically exempted “records of the office of internal investigation of the department of public safety” from public view.  1 V.S.A. § 317(c)(18); see also id. § 317(c)(1) (exempting from disclosure “records which by law are designated confidential”); 20 V.S.A. § 1923(d) (stating that records of the office of internal investigation shall be confidential with exceptions not relevant here). Classifying the records here as falling within the management proviso would obviate the language that specifically addresses and exempts records dealing with the detection and investigation of crime.  It would swallow the exemption.   Nothing in the legislative history shows that the management proviso was intended to make public actual investigation files such as those at issue here.  As the trial court found, the records here were directly related to a specific investigation; they were not related to policy, employment practices, or other activities that would fall within a common sense understanding of the term “management and direction of a law enforcement agency.”

Chapter I, Article 6, of the Vermont Constitution states, “[t]hat all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”   The provision was originally present in the Vermont Constitution of 1777, ch. I, art. 5, having there been lifted nearly verbatim from the Pennsylvania Constitution of 1776.  Pa. Const. of 1776, Declaration of Rights, cl. IV.  The framers of the Pennsylvania Constitution drew their inspiration, in turn, from the Virginia Constitution of 1776, drafted by George Mason, which provided “[t]hat all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”  Va. Const. of 1776, Bill of Rights, § 2.  We have explained that Article 6 cannot normally be the basis for judicially enforceable rights.  “Article 6 is but a truism of a republican form of government, and provides no private right of action. “   Welch v. Seery, 138 Vt. 126, 128, 411 A.2d 1351, 1352 (1980). Article 6 does not provide the specificity necessary to create legal entitlements with definite character, and is not self-executing.  To say that Article 6 is not self-executing is to say that the Legislature may select the means and details of executing the broad principles articulated in Article 6.   To the extent that § 317(c)(5) exempts from disclosure the records in this case, the Legislature has determined that the principle embodied in Article 6 does not mandate disclosure.  We will not second-guess that determination.

Dooely, J., dissents from the majority decision with respect to the inquest records, but concurs with with the majority decision that 1 V.S.A. § 317(c)(5) exempts from public access executive branch records dealing with the detection and investigation of crime, even if the criminal investigation is complete, and also with the majority decision that  the statute, so construed, does not violate Article 6 of Chapter I of the Vermont Constitution.  Justice Dooley also agrees that the proviso in § 317(c)(5) for “records relating to management and direction of a law enforcement agency” does not apply here, although for reasons different from the majority.  The Legislature may have wanted transparency if the investigation of crime involves investigating the actions of a law enforcement agency or its employees.  Thus, Justice Dooley does not agree with the majority’s conclusion that the Herald’s position would “swallow the exemption.”  The proviso is needed because the wording of § 317(c)(5) threatens to make opaque all records of the agency—even those that do not involve investigation of particular cases but instead with the overall management and direction of the agency.  Since the records the Herald seeks do not relate to the management and direction of the VSP, the proviso does not apply.

Insurance. Intentional act by “an insured” precludes coverage for innocent co-insured.

Co-operative Insurance Companies v. Woodward, 2012 VT 22  (Reiber, C.J.)

Father appeals the trial court’s declaration of no coverage for the claims made in the lawsuit filed against homeowner for negligent supervision and damages arising out of the abduction, assault, and death of his daughter. Homeowner was formerly married to uncle who is alleged to have kidnapped, sexually assaulted, and murdered  daughter. Homeowner’s insurer brought a declaratory judgment action asking the trial court to hold that its policy does not cover these claims.  The trial court decided the case on summary judgment, holding that the insurance policy excludes intentional acts by uncle, who was “an insured.” The court rejected father’s argument that the separate insureds, or severability, clause provides coverage for homeowner.  We affirm.

The policy exclusion states, the “ policy does not apply to:  …’bodily injury’ or ‘property damage’...  that is the result of an intentional and malicious act by or at the direction of an ‘insured’." A policy exclusion for intentional acts by “an insured” generally bars coverage for claims made by any insured under the same policy.  N. Sec. Ins. Co. v. Perron, 172 Vt. 204, 220 (2001).  If the exclusion precludes coverage for certain acts by “the insured,” however, noncoverage of one insured does not affect coverage for claims against other insureds.  Id. at 221-22. The alleged acts are inherently harmful and so certain to cause injury that we must conclude as a matter of law that uncle had intent to harm.  Therefore homeowner is barred from coverage because the policy at issue uses the collective term “an insured.”

Despite this result, father contends that the policy contains a severability clause which would allow homeowner to be covered since uncle, not homeowner, committed the intentional act.  We assume without deciding that the provision at issue is a severability clause. Because exclusions for “an insured” serve to collectively bar all insureds, and because of the weight of decisional authority, we conclude that the clause at issue does not create ambiguity and  has no effect on—and cannot override—the intentional-acts exclusion for certain acts committed by “an insured.”