finding abuse of process when a former Attorney General maliciously caused federal warrants to issue for plaintiffs arrest, while conceding that he had no evidence for doing so
How later courts described this case
- finding abuse of process when a former Attorney General maliciously caused federal warrants to issue for plaintiffs arrest, while conceding that he had no evidence for doing so
- observing that when prosecutor performs acts within scope of absolute immunity “his motive for acting is not subject to inquiry in a private suit even if there is a claim of willful or malicious conduct” (quotation and citation omitted)
- finding that the Commissioner of a department enjoyed absolute official immunity from claims
- claim of malicious prosecution against attorneys in the attorney general’s office
Written by the judges who cited it.
The opinion
Morse, J.,
dissenting. I respectfully dissent. Regarding the doctrine of official immunity, the record is unclear as to whether the neglect leading to plaintiff’s unwarranted arrest was the result of a failure to do a ministerial function by a deputy prosecutor or someone working in a clerical position in the state’s attorney’s office, or a failure by a deputy prosecutor to undertake the proper steps in exercising a discretionary function. Libercent v. Aldrich, 149 Vt. 76, 81 , 539 A.2d 981, 984 (1987) (“a discretionary duty ... requirfes] the exercise of judgment[;]... a ministerial duty [is] one where ‘nothing is left to discretion — a simple and definite duty . . . arising under conditions admitted or proved to exist.’”) (quoting State v. Howard, 83 Vt. 6, 14 , 74 A. 392, 395 (1909)). Liability may be predicated upon neglect to do an act like the automatic routing of a pleading, which does not involve the exercise of discretion. While we agree that Levinsky v. Diamond, 151 Vt. 178, 185 , 559 A.2d 1073, 1078 (1989) (deputy or assistant prosecutors entitled only to qualified immunity for discretionary acts done within scope of their authority in good faith), should be clarified or overruled in part to reflect that an immunity defense should depend upon the function being performed and not the title of the defendant, Forrester v. White, 484 U.S. 219, 227 (1988), this record is factually inadequate to reach the issue of law raised in the motion for summary judgment.
I am also concerned that the procedural posture of this case does not warrant dismissal. The trial court described the action as an attempt to obtain “damages from the State of Vermont for the negligence of the State’s Attorney,” but analyzed the case as one of official or judicial immunity. In part, the confusion results from the plaintiff’s dismissal of the State of Vermont as a party while retaining his action against the Rutland County *283 State’s Attorney. The stipulation of dismissal allows for the reinstatement of the action against the State of Vermont. In fact, plaintiff asked that if the defendant prevailed on the issue of immunity, “but the pleadings are found defective as to parties, plaintiff requests the opportunity to amend as justice requires.” The trial court’s statement does indicate some confusion as to parties — that is, it believed that the damages were to come from the State — but it never addressed the plaintiff’s request to amend the complaint. At a minimum, the case should be remanded to allow the plaintiff to again amend the complaint to include the State of Vermont as a party.
I am authorized to say that Justice Dooley joins in this dissent.