Opinion
10-P-1777
10-07-2011
MAVIS L. YOUNG v. JOYCE E. COLEMAN & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Mavis Young, is a Middlesex County probation officer alleged to have interfered with the criminal prosecution of a probationer assigned to her charge. She responded to the allegations by bringing a suit for defamation and civil rights violations and now appeals from the dismissal of all but one of her claims by a judge of the Superior Court. We affirm.
That claim has been settled by the parties and is not before us.
The facts are recited in detail in the judge's comprehensive memorandum of decision. We refer to them as relevant to the issues.
Discussion. Defendants Walsh and Bedrosian -- qualified immunity. Defendant Bedrosian is chief of the Middlesex County district attorney's special investigations unit; defendant Walsh is an assistant district attorney for Middlesex County. The actions of the prosecutors complained of here consist of Walsh's informing his supervisor, Bedrosian, that the Cambridge police had reported interference by Young with the exercise of an arrest warrant and that Young had been additionally uncooperative with Walsh. Bedrosian in turn sent a letter outlining Walsh's report to the plaintiff's supervisor, chief probation officer (and subsequently codefendant) Coleman. The letter alleged that Young initially refused to disclose the probationer's whereabouts to the police, that Young disclosed to the probationer the fact that a specific district attorney was investigating him, and that Young gave exculpatory testimony at the hearing without first advising the prosecutor.
Qualified immunity attaches to the actions of these defendants if they are conducting themselves within the ambit of discretionary decision-making and do not violate clearly established statutory or constitutional rights. Ahmad v. Department of Correction, 446 Mass. 479, 484 (2006). As to the first requirement, we conclude that the acts complained of here were indisputably within the ambit of discretionary decision-making, aimed as they were at removing interference with law enforcement. That goal was a prospective one, designed to discourage repetition where, as here, the probationer had already been located, a hearing held, and a decision rendered.
With respect to the second requirement, there is no constitutional protection that attaches to the refusal to disclose a probationer's address to a police officer or to the disclosure to a probationer that he is being investigated by a particular prosecutor. Finally, the testimony provided by the plaintiff at the revocation hearing was given as a part of her official duties, hence was not a clearly constitutionally protected right 'of which a reasonable person would have known,' Shedlock v. Department of Correction, 442 Mass. 844, 859 (2004), quoting from Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). At best the plaintiff can point to conflicting Federal circuit opinions.
On this issue, the Third Circuit has held that testimony as part of an employee's official duties is constitutionally protected, Reilly v. Atlantic City, 532 F.3d 216, 231-232 (3d Cir. 2008), while the Ninth, Huppert v. Pittsburg, 574 F.3d 696, 707-708 (9th Cir. 2009), and Eleventh Circuits, Green v. Barrett, 226 Fed. Appx. 883 (11th Cir. 2007), have reached the opposite conclusion. The United States Supreme Court has declined to address the issue squarely, conditioning constitutional protection on the degree to which a public employee's speech can be characterized as part of assigned duties. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
We note as well that the letter sent by Bedrosian did not actually complain about the testimony given by Young at the hearing; indeed the process of reporting Young's actions to her supervisor was initiated before the hearing and the letter explicitly disclaims any complaint about the outcome of the hearing. As such it is insufficient to deter a 'person of ordinary firmness' from such testimony even were we to conclude, which we do not, that the appearance as a witness at the hearing was a constitutionally protected exercise of speech. McKee v. Hart, 436 F.3d 165, 170-171 (3d Cir. 2006).
Because we conclude that qualified immunity supports the dismissal of the complaint against these defendants for two independent reasons, we do not address the potential application of absolute immunity.
'[T]he scope of prosecutorial immunity under State common law . . . is at least as broad as under § 1983.' Chicopee Lions Club v. District Attorney for the Hampden Dist., 396 Mass. 244, 251 (1985). We conclude that both the civil rights and State common law claims were properly dismissed as against defendants Walsh and Bedrosian.
Defendant Coleman -- conditional privilege. Coleman was Young's immediate supervisor and the person who received the letter from Bedrosian reciting her alleged interference. Coleman disclosed the letter to the commissioner's office. Her republication of the statements contained in the letter is privileged so long as (1) it was reasonably necessary to serve the probation department's 'legitimate interest in the fitness of an employee to perform his or her job,' Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 509 (1984), and (2) it was not made with 'knowledge of its falsity or with reckless disregard for the truth,' Foley v. Polaroid Corp., 400 Mass. 82, 95 (1987). The subject matter of the letter, and the fact that it was transmitted from a law enforcement agency, places it squarely within the first condition enumerated above. With respect to the second condition, there are no allegations in the record that would support the plaintiff's conclusory assertion that Coleman knew or should have known the allegations to be untrue. We consider the source of the letter to have provided Coleman with at least a reasonable belief in its accuracy.
Finally, as the judge pointed out in his thoughtful decision below, Coleman forwarded the letter only within the office to a 'narrow group,' all of whom had a legitimate official interest and responsibility in the subject matter. Draghetti v. Chmielewski, 416 Mass. 808, 813-814 (1994).
Judgment affirmed.
By the Court (Kafker, Green & Grainger, JJ.),