Muzzy v. State, 583 A.2d 82 (Vt. 1990). · Go Syfert
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Muzzy v. State, 583 A.2d 82 (Vt. 1990). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case · …encompasses any act closely associated with litigation or potential litigation, but does not cover administrative . . . or investigative functions that are not a part of the judicial function. ✓
113 citation events (90 in the last 25 years) across 5 distinct courts.
Strongest positive: Jeffrey Rivard v. Windham State Attorney (vt, 2025-12-05)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
discussed Cited as authority (rule) Jeffrey Rivard v. Windham State Attorney (2×) also: Cited "see"
Vt. · 2025 · confidence medium
He further argues that the court erred in dismissing his malicious-prosecution claim because his criminal- trespass charge lacked probable cause. 2 The trial court properly dismissed these claims because the facts as alleged show that defendants were immune from suit. “[P]rosecutors have . . . absolute immunity from civil suits to the extent that the actions complained of are associated with the judicial phase of the criminal process and are within [their] general authority . . . .” Muzzy v. State, 155 Vt. 279, 279 (1990).
cited Cited as authority (rule) Pigeon v. State
Vt. Super. Ct. · 2024 · confidence medium
State’s Att’y, 155 Vt. 279, 279 (1990).
discussed Cited as authority (rule) rivard v. windham county states attorney
Vt. Super. Ct. · 2023 · confidence medium
Levinsky v. Diamond, 151 Vt. 178 , 193–94 (1989); Muzzy v. State, 155 Vt. 279, 281 (1990) (“[The prosecutor’s] 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)).
discussed Cited as authority (rule) Whiting v. Lillicrap
Vt. Super. Ct. · 2015 · confidence medium
Levinsky v. Diamond, 151 Vt. 178 , 193–94 (1989); Muzzy v. State, 155 Vt. 279, 281 (1990) (“[prosecutor’s] 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)).
discussed Cited as authority (rule) Grega v. Pettengill
D. Vt. · 2015 · confidence medium
In Muzzy v. State By and Through Rutland County State’s Attorney, 155 Vt. 279 , 583 A.2d 82, 83 (1990), the Vermont Supreme Court suggested that prosecutors’ absolute immunity from civil suit depended on whether the underlying conduct fell “within the prosecutorial function.” However, in Czechorowski , the Court held that “[qualified immunity applies to pros-ecutorial functions outside the area of advocacy, such as investigation or administration.” Id. at 889-90 (concluding that general counsel to Department of Aging and Disabilities was entitled only to qualified immunity for acti…
examined Cited as authority (rule) O'Connor v. Donovan (3×) also: Cited "see, e.g."
Vt. Super. Ct. · 2010 · confidence medium
However, in 1990 the Court stated in a footnote that it was overruling Levinsky “to the extent that . . .[it] consider[ed] prosecutors acting in their quasi-judicial role as executive rather than judicial officers.” Muzzy v. State, 155 Vt. 279, 280 (1990).
examined Cited as authority (rule) Czechorowski v. State (3×) also: Cited "see, e.g."
Vt. · 2005 · confidence medium
Muzzy v. State, 155 Vt. 279, 280 , 583 A.2d 82, 83 (1990).
discussed Cited as authority (rule) Huminski v. Lavoie
Vt. · 2001 · confidence medium
Here, the court ruled generally that there is no private analog for the “purely governmental function of prosecuting a criminal case.” Although it is well settled that the State and prosecutors enjoy absolute immunity from civil suits for pursuing criminal prosecutions, this protection encompasses only those acts “closely associated with litigation or potential litigation, but does not cover administrative functions or investigative functions that are not a part of the judicial function.” Muzzy v. State, 155 Vt. 279, 280 , 583 A.2d 82, 83 (1990) (internal citations omitted).
discussed Cited as authority (rule) Politi v. Tyler (2×)
Vt. · 2000 · confidence medium
See, e.g., Butz v. Economou, 438 U.S. 478, 508-13 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978) (participants in federal administrative adjudication entitled to quasi-judicial immunity); Muzzy v. State, 155 Vt. 279, 280 , 583 A.2d 82, 83 (1990) (quasi-judicial immunity extends to state's attorney to extent that actions complained of are associated with judicial phase of criminal process); Black v. Clegg, 938 P.2d 293, 296-97 (Utah 1997) (quasi-judicial immunity applies to state bar officers and counsel in performance of attorney discipline functions).
discussed Cited as authority (rule) Long v. L'ESPERANCE
Vt. · 1997 · confidence medium
The protection from suit afforded a state employee such as defendant is qualified, not absolute: defendant is entitled to qualified immunity if he was “(1) acting during [his] employment and acting, or reasonably believing [he was] acting, within the scope of [his] authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts.” Id. at 185, 559 A.2d at 1078 . *571 There is no dispute that defendant was acting within the scope of his authority, and that his arrest of plaintiff was a discretionary, rather than a ministerial, act.
cited Cited as authority (rule) LaShay v. Department of Social & Rehabilitation Services
Vt. · 1993 · confidence medium
Id. at 184-85, 559 A.2d at 1078 .
discussed Cited "see" Shirley Ann Carpin v. Vermont Yankee Nuclear Power Corporation (2×)
Vt. · 2024 · signal: see · confidence high
A.B. v. S.U., 2023 VT 32, ¶ 9 , __ Vt. __, 298 A.3d 573 ; see Levinsky v. Diamond, 151 Vt. 178, 197 , 559 A.2d 1073, 1086 (1989) (explaining this Court has never cited Article 4 “to give rise to a substantive constitutional right”), overruled on other grounds by Muzzy v. State, 155 Vt. 279 , 583 A.2d 82 (1990); Shields v. Gerhart, 163 Vt. 219, 223 , 658 A.2d 924, 928 (1995) (asserting Article 4’s purpose is “ensur[ing] access to the judicial process”).
discussed Cited "see" Gregory W. Zullo v. State of Vermont (2×)
Vt. · 2019 · signal: see · confidence high
See Levinsky v. Diamond, 151 Vt. 178, 183 , 559 A.2d 1073, 1077 (1989) (noting that sovereign immunity is “derived from the concept that ‘the King 13 can do no wrong’ ”), overruled on other grounds by Muzzy v. State, 155 Vt. 279, 281 , 583 A.2d 82, 83 (1990); J.
discussed Cited "see" Gregory W. Zullo v. State of Vermont (2×)
Vt. · 2019 · signal: see · confidence high
See Levinsky v. Diamond , 151 Vt. 178 , 183, 559 A.2d 1073 , 1077 (1989) (noting that sovereign immunity is "derived from the concept that 'the King can do no wrong' "), overruled on other grounds by Muzzy v. State , 155 Vt. 279 , 281, 583 A.2d 82 , 83 (1990) ; J.
discussed Cited "see" In re Keith Russell Judd
Vt. · 2011 · signal: see · confidence high
See Levinsky v. Diamond, 151 Vt. 178, 185 (1989), overruled on other grounds by Muzzy v. State, 155 Vt. 279 , 280 n. * (1990) (we will affirm where trial court reached right result for wrong reason).∗ Affirmed.
examined Cited "see" Bock v. Gold (4×)
Vt. · 2008 · signal: see · confidence high
See Levinsky v. Diamond, 151 Vt. 178, 185 , 559 A.2d 1073, 1079 (1989), overruled on other grounds by Muzzy v. State, 155 Vt. 279 , 280 n.*, 583 A.2d 82 , 83 n.* (1990).
discussed Cited "see" Huminski v. Wright
Vt. Super. Ct. · 2005 · signal: see · confidence high
See Muzzy v. State, 155 Vt. 279 (1990) (discussing the limits of prosecutorial immunity). 5 served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.”); see also Kelly v. Town of Barnard, 155 Vt. 296 (1990).
discussed Cited "see" Stevens v. Stearns (2×)
Vt. · 2003 · signal: see · confidence high
See Levinsky v. Diamond, 151 Vt. 178, 198-99 , 559 A.2d 1073, 1087 (1989) (rejecting subjective inquiry into whether official acted in good faith), overruled on other grounds, Muzzy v. State, 155 Vt. 279 , 280 n.*, 583 A.2d 82 , 83 n.* (1990). ¶ 16.
discussed Cited "see" Amy's Enterprises v. Sorrell (2×)
Vt. · 2002 · signal: see · confidence high
See Levinsky v. Diamond, 151 Vt. 178, 191 , 559 A.2d 1073, 1082 (1989) (publicity decisions made by assistant attorneys general in course of investigation were discretionary), overruled on other grounds by Muzzy v. State, 155 Vt. 279 , 583 A.2d 82 (1990).
discussed Cited "see" Jacobs v. State Teachers' Retirement System (2×)
Vt. · 2002 · signal: see · confidence high
See Levinsky v. Diamond, 151 Vt. 178, 183 , 559 A.2d 1073, 1077 (1989) (sovereign immunity protects only the state itself), overruled on other grounds by Muzzy v. State, 155 Vt. 279, 280 , 583 A.2d 82, 83 (1990).
discussed Cited "see" Rowe v. Brown (2×)
Vt. · 1991 · signal: see · confidence high
See Levinsky v. Diamond, 151 Vt. 178, 197 , 559 A.2d 1073, 1086 (1989) (Article 4 has been treated as the Vermont equivalent of the federal due process clause), overruled on other grounds, Muzzy v. State, 155 Vt. 279, 280 , 583 A.2d 82, 83 (1990).
discussed Cited "see, e.g." Heymann v. Vmers
Vt. Super. Ct. · 2026 · signal: see also · confidence low
This is because the purpose of a motion to dismiss for failure to state a claim is "to test the law of the claim, not the facts which support it." Brigham v. State of Vermont, 2005 VT 105 , q11 (quoting Powers v. Office of Child Support, 173 Vt. 390, 395 (2002)); see also Levinsky v. Diamond, 140 Vt. 595, 600 (1982), overruled on other grounds in Muzzy v. State, 155 Vt. 279 , (1990).
discussed Cited "see, e.g." Welsh Trust v. Jackson
Vt. Super. Ct. · 2025 · signal: see also · confidence low
Id This is because the purpose of a motion to dismiss for failure to state a claim is "to test the law of the claim, not the facts which support it." Brigham v. State of Vermont, 2005 VT 105 , J 11 (quoting Powers v. Office of Child Support, 173 Vt. 390, 395 (2002)); see also Levinsky v. Diamond, 140 Vt. 595, 600 (1982), overruled on other grounds in Muzzy v. State, 155 Vt. 279 , (1990).
discussed Cited "see, e.g." Drinan v. Green Mountain Stock Farm
Vt. Super. Ct. · 2025 · signal: see also · confidence low
This is because the purpose of a motion to dismiss for failure to state a claim is “to test the law of the claim, not the facts which support it.” Brigham v. State of Vermont, 2005 VT 105, ¶ 11 (quoting Powers v. Office of Child Support, 173 Vt. 390, 395 (2002)); see also Levinsky v. Diamond, 140 Vt. 595, 600 (1982), overruled on other grounds in Muzzy v. State, 155 Vt. 279 , (1990).
discussed Cited "see, e.g." In Re K.G. & L.G. Juveniles (2×)
Vt. · 2023 · signal: see also · confidence low
It is settled that “Article 4 does not create substantive rights,” but “it does ensure access to the judicial process.” Shields v. Gerhart, 163 Vt. 219, 223 , 658 A.2d 924, 928 (1995); see also Levinsky v. Diamond, 151 Vt. 178, 197 , 559 A.2d 1073, 1076 (1989) (explaining that Article 4 “has never been held by this Court . . . to give rise to a substantive constitutional right” and “[i]nstead, it has been treated as the Vermont equivalent of the federal Due Process Clause”), overruled on other grounds by Muzzy v. State, 155 Vt. 279 , 583 A.2d 82 (1990).
discussed Cited "see, e.g." Nashef v. AADCO Medical, Inc. (2×)
D. Vt. · 2013 · signal: see also · confidence low
See Howard Opera House Assocs. v. Urban Outfitters, Inc., 97 F.Supp.2d 571, 573-74 (D.Vt.2000) (denying motion to dismiss defendant’s abuse of process counterclaim when defendant alleged that the plaintiff law firm “misused [a firm attorney’s] status as member of the Police Commission to improperly use a court process (the noise citation) for the ulterior purpose of meeting an evidentiary burden in a civil action seeking unspecified money damages”) (internal quotation marks omitted); see also Levinsky v. Diamond, 140 Vt. 595 , 442 A.2d 1277, 1280 (1982), overruled on other grounds by M…
discussed Cited "see, e.g." O'Connor v. Donovan (2×)
Vt. · 2012 · signal: see also · confidence low
Affirmed. 1 The court divided plaintiffs factual allegations into two categories, undisputed and disputed, assumed the latter to be true, and dealt with them as though defendant’s motion for summary judgment was a motion to dismiss. 2 As we later explained, when protected by absolute immunity an official’s malicious motive or intent is “irrelevant, since a good-faith test is imposed only when qualified immunity is available.” Levinsky v. Diamond, 151 Vt. 178, 193-94 , 559 A.2d 1073, 1084 (1989); see also Muzzy v. State, 155 Vt. 279, 281 , 583 A.2d 82, 83 (1990) (observing that when pro…
Retrieving the full opinion text from the archive…
Jay Edward Muzzy
v.
State of Vermont, Acting by and Through the Rutland County State’s Attorney and the Rutland County Public Defender
89-039.
Supreme Court of Vermont.
Sep 21, 1990.
583 A.2d 82
1990 Vt. LEXIS 183
Michael Ledden of Medor & McCamley, Rutland, for Plaintiff-Appellant., Abell, Kenlan, Schwiebert & Hall, P.C., Rutland, for Defendant-Appellee.
Allen, Peck, Gibson, Dooley, Morse.
Cited by 51 opinions  |  Published
Pinpoint authority: bottom 46%

Lead Opinion

Gibson, J.

Plaintiff sued defendant Rutland County State’s Attorney after being arrested and detained on a DWI charge that the deputy state’s attorney had previously agreed to dismiss in connection with a plea agreement on another charge. The deputy state’s attorney who negotiated the plea agreement neglected to secure the dismissal of the DWI charge and plaintiff’s unwarranted arrest followed. Plaintiff appeals from an order granting summary judgment in favor of defendant on the basis of official immunity. We affirm.

Judicial officers, including prosecutors, have absolute immunity from civil suits to the extent that the actions complained of are associated with the judicial phase of the criminal process and are within the general authority of the officer. Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Polidor v. Mahady, 130 Vt. 173, 174, 287 A.2d 841, 843 (1972).* This protection encompasses any act closely associated with litigation or potential litigation, but does not cover administrative functions, Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987); Barrett v. United States, 798 F.2d 565, 571-72 (2d Cir. 1986), or investigative functions that are not a part of the judicial function. See Blake v. Rupe, 651 P.2d 1096, 1104 (Wyo. 1982). Accordingly, absolute immunity is extended to prosecutorial activities that concern, among other things, the decision whether to prosecute and the conduct of a plea bargain. Barbera, 836 F.2d at 99-100.

[*281] When a prosecutor performs a quasi-judicial act, “his motive for acting is not subject to inquiry in a private suit,” Polidor, 130 Vt. at 174, 287 A.2d at 843, even if there is a claim of willful or malicious conduct. See Yaselli v. Goff, 12 F.2d 396, 402 (2d Cir. 1926), aff’d, 275 U.S. 503 (1927). Thus, an inquiry into the discretionary or ministerial nature of the act is not appropriate unless the act triggers only qualified immunity. Levinsky v. Diamond, 151 Vt. 178, 185, 559 A.2d 1073, 1078 (1989). Furthermore, absolute immunity protects acts of negligence or oversight that occur within the scope of the prosecutor’s quasi-judicial authority. See Atkins v. banning, 556 F.2d 485, 488 (10th Cir. 1977) (district attorney absolutely immune from suit for naming wrong person in arrest warrant); see also Blake v. Ruge, 651 P.2d at 1100 (“As conceded in Imbler, absolute immunity leaves the genuinely wronged criminal defendant without civil redress against a malicious or dishonest prosecutor. That would certainly include the lesser evil of the negligent prosecutor.”).

The claim against the district attorney in Atkins— that he failed to properly supervise his investigators by verifying that the proper person was named in the indictment — is similar to the claim here that the state’s attorney failed to adequately supervise his staff regarding the handling of the second DWI charge. The court in Atkins determined that the acts of the district attorney and his underlings were within their quasi-judicial authority rather than their investigative “police-related” role. 556 F.2d at 488-89. Similarly, we conclude 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. See Polidor, 130 Vt. at 175, 287 A.2d at 843 (quasi-judicial acts — even those “in excess of jurisdiction” — are immune from civil suit).

We recognized in bevinsky that such a policy may leave some plaintiffs without civil redress. 151 Vt. at 198, 559 A.2d at 1086. Nevertheless, we pointed out that it would be impossible to confine complaints to the guilty officers without hampering the efficiency and efficacy of the office, and concluded that it would be better to leave a few wrongs unredressed by civil action than to subject judicial officers to constant threat of retaliation. See id. [*282] at 184, 199, 559 A.2d at 1078, 1087; see also Imbler, 424 U.S. at 425 (“[I]f the prosecutor could be made to answer in court each time a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.”); Blake, 651 P.2d at 1103 (with only qualified immunity, “lawsuits . . . would undermine the effectiveness of [the prosecutor’s] office”).

Affirmed.

Polidor and Imbler make it clear that when prosecutors perform quasi-judicial functions, they have the same immunity as judges. Therefore, to the extent that Levinsky v. Diamond, 151 Vt. 178, 559 A.2d 1073 (1989), in its analysis of official immunity, considers prosecutors acting in their quasi-judicial role as executive rather than judicial officers, it is overruled.

Dissent

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.