Jeffrey Frost & A. v. Michael Delaney & A , 168 N.H. 353 ( 2015 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough–northern judicial district
No. 2014-0580
JEFFREY FROST & a.
v.
MICHAEL DELANEY & a.
Argued: June 24, 2015
Opinion Issued: November 17, 2015
Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann and
Charles G. Douglas, III on the brief, and Mr. Douglas orally), for the plaintiffs.
Joseph A. Foster, attorney general (Brian W. Buonamano, assistant
attorney general, on the brief and orally), for defendants New Hampshire
Banking Department, Kathleen Sheehan, and State of New Hampshire.
CONBOY, J. This appeal and cross-appeal arise out of a civil action by
the plaintiffs, Jeffrey Frost, Frost Family, LLC (Frost Family), and
Chretien/Tillinghast, LLC (Chretien), against Michael Delaney, individually and
as former attorney general; the State of New Hampshire; the New Hampshire
Banking Department (the Department); Karen Gorham, individually and as
former assistant attorney general; Peter Hildreth, individually and as former
commissioner of the Department; Maryam Torben Desfosses, individually and
as hearings examiner for the Department; and Kathleen Sheehan, individually
and as bank examiner for the Department, for their actions in the investigation
and prosecution of Frost for alleged violations of RSA chapter 397-A. The
plaintiffs appeal only orders of the Superior Court (Brown, J.) granting the
defendants’ motion for summary judgment on the plaintiffs’ 42 U.S.C. § 1983
(2012) claim (§ 1983 claim) against Sheehan on the ground that she is entitled
to qualified immunity, and dismissing their negligent supervision claims
against Hildreth and Desfosses on the ground that they are entitled to absolute
prosecutorial immunity. Defendants the State of New Hampshire, the
Department, and Sheehan cross-appeal. We affirm.
I. Background
This is the second opinion we have issued in connection with the
prosecution of Frost for allegedly violating RSA chapter 397-A. See Frost v.
Comm’r, N.H. Banking Dep’t, 163 N.H. 365 (2012). We begin by reviewing the
statutory backdrop to this case and summarizing the relevant facts drawn from
the trial court’s orders, the record, and our prior opinion.
RSA chapter 397-A governs the licensing of nondepository mortgage
bankers and brokers. See RSA ch. 397-A (2006 & Supp. 2014). In March
2009, RSA 397-A:3 required persons engaged in the business of making or
brokering mortgage loans to obtain a license from the Department. RSA 397-
A:3, I (Supp. 2008) (amended 2012). RSA 397-A:4, II (2006) (amended 2009)
exempted from licensure “[a]ny natural person making not more than 4 first
mortgage loans within any calendar year.” Effective July 2009, the legislature
removed the exemption for natural persons making four or fewer mortgage
loans within a year. See RSA 397-A:4 (Supp. 2009) (amended 2011, 2012,
2013). In addition, effective July 2009, the legislature enacted RSA 397-A:1,
XIII-a, which provides that “‘[m]ortgage lender’ means a mortgage banker.”
Laws 2009, 290:7.
Chretien and Frost Family are New Hampshire limited liability companies
organized for the purpose of real estate acquisition, holding, and development.
Frost, 163 N.H. at 368. Frost is a member and designated manager of Chretien
and a member of Frost Family. Id. In March 2009, Chretien sold one of its
properties to Robert Recio and his housemate in a seller-financed real estate
transaction. See id. at 368. In late December 2009, Recio filed a complaint
against Chretien with the Consumer Protection Bureau of the Attorney
General’s Office alleging, among other things, that the plaintiffs had
fraudulently induced him to enter into the sale. Id. The complaint was
forwarded to the Department, which assigned investigation of the complaint to
Sheehan.
On February 22, 2010, Sheehan, Gorham, and Manchester Police
Department officials drafted an application for a warrant to search Frost’s
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residence, which also served as the business address for Chretien, for evidence
that the plaintiffs had participated in unlicensed mortgage lending in violation
of RSA chapter 397-A. The supporting affidavit averred that Frost, as a
member of Chretien, “had acted as a Mortgage Banker” with regard to the
conduct complained of in Recio’s complaint.
The next day, the Manchester District Court (Ryan, J.) granted the
search warrant application. Judge Ryan noted on the application that he had
“inquired of . . . Sheehan regarding her investigation and what she had learned
about Frost acting as a Mortgage Banker . . . Sheehan informed the Court that
she looked at [the] mortgage registered with [the] Registry of Deeds which listed
Chretien/Tillinghast as the mortgage banker. Frost had been the
representative of Chretien/Tillinghast.” (Emphasis added.) In fact, the
mortgage deed listed Chretien as the lender.
Subsequently, Manchester police officers executed the search warrant.
Shortly thereafter, Frost was arrested and charged with four class A
misdemeanors alleging violations of RSA chapter 397-A. The district court
later granted Frost’s motion to suppress the evidence obtained as a result of
the search. The court found that Sheehan misrepresented that Chretien was
listed as the “Mortgage Banker” in the Recio transaction and that her
misrepresentation was material. The court, therefore, determined that the
warrant application lacked probable cause. Thereafter, the court granted
Frost’s motion to dismiss the criminal charges.
On March 23, the Department initiated administrative proceedings
against Frost. See Frost, 163 N.H. at 369. After unsuccessfully attempting to
resolve those claims, the plaintiffs initiated a declaratory judgment action in
superior court, seeking to stay the administrative proceedings until the issue of
the Department’s jurisdiction could be resolved. The trial court granted a
preliminary injunction against further Department administrative proceedings,
concluding that the Department lacked jurisdiction to take action against Frost
for his conduct relating to the Recio mortgage transaction and to a separate
seller-financed real estate transaction involving Frost Family. See id. at 370.
The Department appealed, and we affirmed the trial court’s decision. See id. at
367-68. We concluded that neither Frost Family nor Chretien “engaged in the
business of making or brokering mortgage loans.” Id. at 376 (quotation
omitted); see RSA 397-A:2, I (Supp. 2014). We further held that Frost was not
subject to disciplinary action by the Department based upon the two disputed
transactions because when they occurred, neither Frost Family nor Chretien
was a mortgage banker or broker under RSA chapter 397-A. Frost, 163 N.H. at
376-77.
The plaintiffs then brought this action against the defendants, asserting
various claims, including a § 1983 claim against Delaney, Hildreth, Gorham,
Desfosses, and Sheehan. Specifically, the plaintiffs alleged that, in the course
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of obtaining the search warrant, Sheehan misrepresented material facts when
she told Judge Ryan that Chretien was listed on the Recio mortgage as a
mortgage banker. They claimed that this misrepresentation violated their right
to be free from unreasonable search and seizure under the Fourth Amendment
to the Federal Constitution as well as Frost’s rights to substantive and
procedural due process under the Fourteenth Amendment to the Federal
Constitution. The plaintiffs also brought negligent supervision claims against
Delaney, Hildreth, Desfosses, the State of New Hampshire, and the Department
for allegedly failing to supervise employees within the Department and the
Attorney General’s Office.
Subsequently, the trial court granted the defendants’ motion to dismiss
the negligent supervision claims. Following a hearing on the defendants’ later
summary judgment motion, the court found that the doctrine of official
immunity bars the plaintiffs’ state constitutional and intentional infliction of
emotional distress claims. It further found that the doctrine of qualified
immunity bars the plaintiffs’ § 1983 claims. Accordingly, the court granted the
defendants’ motion for summary judgment on those claims. The plaintiffs
unsuccessfully sought reconsideration of both the trial court’s order dismissing
their negligent supervision claims against Hildreth and Desfosses and the order
granting summary judgment in favor of the remaining defendants on the
§ 1983 claims. This appeal and cross-appeal followed.
II. Plaintiffs’ Appeal
A. Motion for Summary Judgment
We first consider the plaintiffs’ argument that the trial court erred by
granting summary judgment on their § 1983 claim against Sheehan on the
ground that she was entitled to qualified immunity. We note that the plaintiffs
do not appeal the trial court’s ruling that official immunity bars their state
constitutional and intentional infliction of emotional distress claims.
We review “a grant of summary judgment based on qualified immunity de
novo.” McInerney v. King, 791 F.3d 1224, 1227 (10th Cir. 2015) (quotation
omitted). We consider the affidavits and other evidence, and all inferences
properly drawn from them, in the light most favorable to the non-moving party.
Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 35 (2005); see also
McInerney, 791 F.3d at 1227. If our review of that evidence discloses no
genuine issue of material fact, and if the moving party is entitled to judgment
as a matter of law, we will affirm the grant of summary judgment. Hughes, 152
N.H. at 35.
We begin by reviewing the doctrine of qualified immunity. The doctrine
of qualified immunity is a creature of federal law. Id. at 42. Under the
doctrine, “government officials performing discretionary functions, generally are
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shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982).
“In resolving questions of qualified immunity at summary judgment,
courts engage in a two-pronged inquiry.” Tolan v. Cotton, 134 S. Ct. 1861,
1865 (2014). Courts may exercise discretion in deciding which of the prongs
“should be addressed first in light of the circumstances in the particular case
at hand.” Conrad v. N.H. Dep’t of Safety, 167 N.H. 59, 74 (2014) (quotation
omitted); see also Tolan, 134 S. Ct. at 1866. The first prong “asks whether the
facts taken in the light most favorable to the party asserting the injury, show
the [officials’] conduct violated a federal right.” Tolan, 134 S. Ct. at 1865
(quotation, brackets, and ellipsis omitted). The second prong “asks whether
the right in question was ‘clearly established’ at the time of the violation.” Id.
at 1866 (quotation omitted). This inquiry generally “turns on the objective legal
reasonableness of the action, assessed in light of the legal rules that were
clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S.
635, 639 (1987) (quotations and citation omitted).
In other words, the official is entitled to immunity unless her actions
violated “legal norms clearly established at the time of the challenged actions.”
Richardson v. Chevrefils, 131 N.H. 227, 232 (1988) (quotation and ellipsis
omitted). “This standard eliminates from consideration allegations about the
official’s subjective state of mind, such as bad faith or malicious intention,
concentrating the inquiry upon the ‘objective reasonableness’ of the official
conduct.” Floyd v. Farrell, 765 F.2d 1, 4 (1st Cir. 1985). Indeed, “an allegation
of malice is not sufficient to defeat immunity if the defendant acted in an
objectively reasonable manner.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Nonetheless, the determination of whether the official’s conduct is objectively
legally reasonable “will often require examination of the information possessed
by the” official, Anderson, 483 U.S. at 641, and “must be undertaken in light of
the specific context of the case, not as a broad general proposition,” Brosseau
v. Haugen, 543 U.S. 194, 198 (2004) (quotation omitted). “In the absence of
clearly established law, an official is not expected to anticipate how courts will
later illuminate the law’s grey areas, whereas clear law at the relevant time will
preclude immunity unless an official can demonstrate extraordinary
circumstances that could be said to have relieved her of responsibility to know
the law’s content.” Richardson, 131 N.H. at 232 (citations omitted).
“The plaintiff bears the burden of demonstrating that the law was clearly
established at the time of the alleged violation, and it is a heavy burden
indeed.” Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015); see Snider v. City of
Cape Girardeau, 752 F.3d 1149, 1155 (8th Cir. 2014). “This exacting standard
gives governmental officials breathing room to make reasonable but mistaken
judgments by protecting all but the plainly incompetent or those who
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knowingly violate the law.” Mitchell, 790 F.3d at 77 (quotation omitted); see
Malley, 475 U.S. at 341.
Here, as the trial court noted, the only dispute regarding whether
qualified immunity bars the plaintiffs’ § 1983 claim against Sheehan is
whether, under the second part of the qualified immunity test, a reasonable
person would have understood that her conduct violated the plaintiffs’
constitutional rights. With that in mind, we turn to the plaintiffs’ arguments.
1. Alleged Incompetence
The plaintiffs argue that the trial court failed to recognize that Sheehan’s
“plain incompetence” precludes her qualified immunity defense. As evidence of
Sheehan’s incompetence, they point to her failure to know “the black letter law
in effect at the time of the [disputed] transaction” as well as the trial court’s
findings that Sheehan was unfamiliar with certain basic aspects of the subject
matter she was assigned to investigate and was “not qualified to handle the
level of sophistication necessary to investigate real estate installment contracts,
or make affirmative representations concerning real estate sales to a district
court judge.” Based upon this evidence, they contend that Sheehan should
have been denied the protection of qualified immunity.
The defendants counter that the record does not establish that Sheehan
was incompetent. Instead, they argue that, “[i]n light of the [Department’s]
understanding of how the term ‘mortgage banker’ was defined,” reasonably
competent bank examiners could disagree as to whether Sheehan’s statements
were accurate. Therefore, they contend that immunity is not precluded.
Defendants will not be entitled to qualified immunity “if, on an objective
basis, it is obvious that no reasonably competent” official would have made the
disputed error; “but if [officials] of reasonable competence could disagree on
[the] issue, immunity should be recognized.” Malley, 475 U.S. at 341. As
explained above, this standard focuses upon the facts of the particular case
and whether a reasonable defendant would have understood that her conduct
violated the plaintiffs’ rights, as well as the clarity of the law at the time of the
alleged violation. See Conrad, 167 N.H. at 73. “This is not to say that an
official action is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at
640 (citation omitted). There need not be a “case directly on point, but existing
precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011).
We cannot say that the law was clearly established at the time of the
alleged violation so that officials of reasonable competence could not disagree
on the issue of whether Frost was acting as “mortgage banker” at the time of
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the Recio mortgage transaction. Sheehan made her statements that Frost was
acting as a “mortgage banker” in February 2010, before we decided Frost,
Frost, 163 N.H. at 376-77, and after RSA chapter 397-A was amended to
provide that “‘mortgage lender’ means mortgage banker,” see RSA 397-A:1,
XIII-a. Thus, when she made her statements, “mortgage banker” and
“mortgage lender” were arguably synonymous terms. Accordingly, we conclude
that the trial court did not err in determining that Sheehan was not precluded
from entitlement to qualified immunity.
2. Objective Standard
The plaintiffs further contend that the trial court erred by applying a
subjective rather than an objective standard in evaluating the qualified
immunity defense. They maintain that the trial court improperly relied upon
what it found to be Sheehan’s actual “‘good faith’” beliefs, rather than applying
an “objective ‘reasonable person’ test.”
The interpretation of a trial court order is a question of law, which we
review de novo. Choquette v. Roy, 167 N.H. 507, 513 (2015). We conclude that
the trial court applied the correct standard.
The trial court determined that Sheehan’s “misrepresentations to Judge
Ryan were made based on [her] good faith application of the [Department’s]
policy concerning the relationship between mortgage bankers and mortgage
lenders.” The court concluded, therefore, “that a similarly situated official
would not have believed the misrepresentations violated Mr. Frost’s
constitutional rights.” In its order on the plaintiffs’ motion for reconsideration,
the court further explained:
Even if the Court were to strip the “good faith” aspect from its
finding, the result remains the same. According to Ms. Sheehan’s
objective knowledge, it was the policy of the [Department] to treat
mortgage bankers and mortgage lenders synonymously. Former
Assistant Attorney General Karen Gorham’s testimony at the
hearing confirmed this policy. To find that Ms. Sheehan’s actions
were objectively reasonable, therefore, is not, as the plaintiffs
contend a reward of ignorance. Ms. Sheehan did not equate the
terms mortgage banker and mortgage lender simply because she
did not know any better. Her overall lack of knowledge
notwithstanding, the Court finds it is objectively reasonable for a
Bank Examiner to be familiar with and follow the internal policies
of the Banking Department.
Although, as the plaintiffs point out, the trial court used the term “good
faith,” implying that it considered Sheehan’s subjective state of mind, it then
applied an objective standard to reach its conclusion that Sheehan’s conduct
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was objectively legally reasonable. The court examined the facts of the case
and the information Sheehan possessed when she made the statement to
Judge Ryan and assessed whether a reasonable person in her position would
have understood that equating “mortgage lender” with “mortgage banker”
violated the plaintiffs’ rights. See Conrad, 167 N.H. at 73; see also Anderson,
483 U.S. at 641.
The plaintiffs maintain that “[i]f the trial court had used a truly objective
[standard,] it would not have used the alleged fact that Sheehan was following
an unofficial departmental ‘policy.’” We disagree. The trial court was permitted
to examine the “specific context of the case” in determining whether Sheehan’s
conduct was objectively reasonable. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Moreover, contrary to the plaintiffs’ contention, the court’s statement that it
was objectively reasonable for a bank examiner to be familiar with, and follow,
internal Department policies was not an analysis of the Department’s
subjective belief. It was an analysis of whether a reasonable Department
official would understand that what she was doing violated the law. See
Snider, 752 F.3d at 1155.
To the extent that the plaintiffs argue that there is a material issue of
disputed fact as to whether there existed an informal policy equating mortgage
banker with mortgage lender, we disagree. To defeat a motion for summary
judgment, “the adverse party may not rest upon mere allegations or denials of
his pleadings, but his response, by affidavits or by reference to depositions,
answers to interrogatories, or admissions, must set forth specific facts showing
that there is a genuine issue for trial.” RSA 491:8-a, IV (2010). The appellate
record contains no affidavit, deposition, answer to interrogatory, or admission
setting forth specific facts to bolster the plaintiffs’ contention that an informal
policy did not exist. As such, this contention was insufficient to defeat
summary judgment. Cf. Tolan, 134 S. Ct. at 1867-68 (vacating grant of
summary judgment to officer on qualified immunity grounds because court had
“credited the evidence of the party seeking summary judgment and failed
properly to acknowledge key evidence offered by the party opposing that
motion”).
Alternatively, the plaintiffs contend that such a policy, even if it existed,
contravened the plain language of the statute in effect when Frost executed the
mortgage. The protection of qualified immunity applies, however, “regardless of
whether the government official’s error is a mistake of law, a mistake of fact, or
a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555
U.S. 223, 231 (2009) (quotation omitted). As such, it is not enough for a
§ 1983 plaintiff to merely show mistake — a “plaintiff must also show that his
clearly established constitutional rights were violated (i.e., that a reasonable
[government official] would have known that he was violating those rights at
the time of the challenged decision).” Bell v. Norwood, No. 2:11–CV–3732–RDP,
2014 WL 4388348, at *9 (N.D. Ala. Aug. 28, 2014). As stated above, we cannot
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say that the law was clearly established at the time of the alleged violation so
that officials of reasonable competence could not disagree on the issue of
whether “mortgage banker” was synonymous with “mortgage lender.” Thus,
the mere fact that Sheehan relied upon the unofficial policy does not
necessarily preclude the application of qualified immunity.
3. Recklessness
The plaintiffs further argue that the trial court erred in determining that
Sheehan’s conduct was not reckless. In making this argument, they rely upon
language in Burke v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005).
However, the language upon which they rely applies in the context of the first
prong of the qualified immunity inquiry — whether the plaintiff has established
a constitutional violation. See Burke, 405 F.3d at 81-82. As the trial court
noted, the only dispute in this case concerns the second prong of the qualified
immunity inquiry — whether a reasonable person would have understood that
her conduct violated the plaintiffs’ constitutional rights. To the extent that the
plaintiffs use the term “recklessly” as a synonym for “incompetent” under the
second prong of the qualified immunity inquiry, as we explained, the trial court
did not err when it failed to find that Sheehan was not plainly incompetent so
as to preclude immunity. See Brennan v. Hendrigan, 888 F.2d 189, 192 (1st
Cir. 1989). Moreover, to the extent that the plaintiffs contend that the trial
court incorrectly applied a subjective standard in determining whether
Sheehan acted recklessly, we are not persuaded. As discussed above, the trial
court applied an objective standard to reach its conclusion that Sheehan’s
conduct was objectively legally reasonable.
4. Discretionary Authority
The plaintiffs next argue that the trial court erred by finding that
Sheehan’s response to Judge Ryan’s inquiry constituted a discretionary act.
They maintain that Sheehan’s responsibility was to provide the judge with
“factual information, not legal interpretation,” and that there is no “room for
discretion, interpretation or spin in responding to judicial inquiry.” We find no
error with the trial court’s determination that Sheehan’s conduct was
discretionary.
As a threshold matter, we note that the trial court’s ruling regarding
whether Sheehan’s conduct was discretionary was in the context of its official
immunity analysis under state law. See Everitt v. Gen. Elec. Co., 156 N.H.
202, 219-21 (2007). Because neither party argues for a different standard in
the qualified immunity context, for purposes of this appeal, we will apply that
standard.
Under official immunity, government officials are protected from personal
liability for those decisions, acts or omissions that are: (1) made within the
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scope of their official duties while in the course of their employment; (2)
discretionary rather than ministerial; and (3) not made in a wanton or reckless
manner. Id. at 219. A discretionary decision, act, or omission involves the
exercise of personal deliberation and individual professional judgment that
necessarily reflects the facts of the situation and the professional goal. Id.
Such decisions include those for which there are no hard and fast rules as to
the course of conduct that must be followed and those acts requiring the
exercise of judgment involving what is just and proper under the
circumstances. Id. at 219-20. By contrast, “an official’s decision, act or
omission is ministerial when it is absolute, certain and imperative, involving
merely execution of a specific duty arising from fixed and designated facts.” Id.
at 220. “Ministerial refers to a duty which is to be performed in a prescribed
manner without the exercise of judgment or discretion” and includes those
decisions, acts, or omissions “imposed by law with performance required at a
time and in a manner or upon conditions which are specifically designated, the
duty to perform under the conditions specified not being dependent upon the
officer’s judgment or discretion.” Id. (quotations omitted).
Here, we agree with the trial court that Sheehan’s answer to Judge
Ryan’s inquiry involved “deliberation, judgment and decision making.”
Sheehan was assigned by the Department to investigate whether the plaintiffs
had engaged in unlicensed mortgage lending in violation of RSA chapter 397-A.
Sheehan testified that, because she was not able to obtain the information she
requested from Frost and Chretien’s attorney, it was decided that “[t]he next
step [was] . . . to obtain search warrants to gather the information that we
needed to continue the investigation.” Although there is no discretion to
commit perjury, see RSA 641:1 (2007), here, Sheehan’s response to Judge
Ryan’s question occurred as part of her investigation and involved the exercise
of personal deliberation and individual professional judgment that necessarily
reflects the facts of the situation and the professional goal, see Everitt, 156
N.H. at 219. Furthermore, as we explained, a reasonably competent official
could have concluded that Frost was acting as a mortgage banker at the time of
the Recio mortgage transaction. We, therefore, conclude that the trial court did
not err by finding that Sheehan’s conduct was discretionary.
B. Motion to Dismiss
The plaintiffs argue that the trial court erred by dismissing their
negligent supervision claims against Hildreth and Desfosses. The trial court
found that those claims involved “investigating, initiating and continuing the
civil proceedings against Frost,” which were “similar to the responsibility of a
criminal prosecutor in initiating and prosecuting criminal cases.” It, therefore,
dismissed them on the basis of absolute prosecutorial immunity. See Van de
Kemp v. Goldstein, 555 U.S. 335, 343-48 (2009). It subsequently found that
Sheehan’s statements to Judge Ryan “did not include the functions of a
prosecutor and [were] therefore not protected by prosecutorial immunity.”
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The plaintiffs argue that it was error for the trial court to dismiss their
negligent supervision claims on prosecutorial immunity grounds because
Sheehan was not entitled to the same immunity. Whether Hildreth and
Desfosses are immune from liability on the basis of prosecutorial immunity
because their alleged conduct was “analogous to [that] of a prosecutor,” Butz v.
Economou, 438 U.S. 478, 515 (1978), is a separate inquiry from whether
Sheehan was immune from liability on the basis of prosecutorial immunity
because her alleged conduct was akin to that of a prosecutor. As the trial
court found, “Sheehan’s non-immune conduct does not strip Hildreth and
Desfosses of their immunity.” Consequently, we cannot say that the trial court
erred by granting the defendants’ motion to dismiss as to Hildreth and
Desfosses.
III. Defendants’ Cross-Appeal
Finally, defendants the State of New Hampshire, the Department, and
Sheehan raise two issues in their notice of cross-appeal. However, because
they have not briefed those issues, we deem them waived. See In re Estate of
King, 149 N.H. 226, 230 (2003).
Affirmed.
DALIANIS, C.J., and LYNN and BASSETT, JJ., concurred.
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