J. JOSEPH SMITH, Circuit Judge:
Gerard and Gemma Brault initiated suit against the Town of Milton, Vermont, in the United States District Court for the District of Vermont to recover damages for the Town's alleged infringement of their property rights under the Due Process Clause of the federal Constitution's Fourteenth Amendment. On the defendant's pretrial motion, the court, Albert W. Coffrin, Judge, dismissed the complaint on October 8, 1974, for failure to state a claim on which relief may be granted. Fed.R.Civ.P. 12(b)(6). The court held in its one-sentence order that 42 U.S.C. § 1983, cited by the plaintiffs in their complaint as creating a cause of action, does not authorize a suit against the Town because a municipality is not a "person" for purposes of the statute's designation of potential defendants. On appeal the Braults concede, and quite correctly, the validity of this rationale. They do take issue, however, with the court's failure to recognize an alternative theory contained in their complaint: that the Fourteenth Amendment itself gives rise to a claim for relief based upon its violation, and that the district court has federal question jurisdiction, 28 U.S.C. § 1331(a), over any such claims where the amount in controversy exceeds $10,000. We agree that the appellants have stated a cause of action for which the United States Constitution authorizes that relief may be granted. In ruling on the Town's motion to dismiss, the district court was obliged to accept the plaintiffs' representation that the amount in controversy exceeded the jurisdictional minimum prescribed by 28 U.S.C. § 1331(a). The district court therefore erred in dismissing the complaint in the absence of any showing that the amount in controversy was not as alleged. We reverse the court's order dismissing the complaint and remand for trial.
See City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
In May, 1967, the Town of Milton secured a temporary injunction prohibiting the Braults from using their land as a trailer park. The injunction was predicated on a zoning ordinance adopted by the Town's voters in the same year. In 1971, the Vermont Supreme Court vacated the injunction (made permanent in 1969) because the vote adopting the ordinance was taken at a town meeting of which those eligible to vote had not received adequate notice. Town of Milton v. Brault, 129 Vt. 431, 282 A.2d 681 (1971). On remand, the Chittenden County court awarded the Braults $86,411 pursuant to 12 Vt.Stat.Ann. § 4447, which then provided:
The basis for the Vermont Supreme Court's decision is set forth in a companion case, Town of Milton v. LeClaire, 129 Vt. 495, 282 A.2d 834 (1971).
When an injunction in chancery is dissolved by final decree in favor of the defendant, he shall be entitled to recover his actual damages caused by the wrongful issuing of the injunction.
The Vermont Supreme Court held on appeal, however, that the municipality was immune from liability except to the extent that it waived such immunity by voluntarily filing an injunction bond. The Braults' recovery was thus limited to the amount of the bond, or $500. Town of Milton v. Brault, 132 Vt. 377, 320 A.2d 630 (1974).
Soon after the Vermont Supreme Court denied their motion for reargument, the Braults filed in federal district court the suit now before us. In this suit they alleged for the first time that their federal constitutional rights had been violated:
10. The acts of Defendant Town in obtaining and maintaining the injunction is referred to under a zoning ordinance that they knew, or should have known, to be invalid, deprived Plaintiffs of the use, enjoyment, profits and value of property without due process of law in contravention of the 14th Amendment of the Constitution of the United States [.]
The Braults are not barred by res judicata from raising this constitutional claim in federal court after state court proceedings in which it might have been litigated but was not. Although Newman v. Board of Education, 508 F.2d 277 (2d Cir. 1975) (per curiam), and Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974), decided this issue in the context of § 1983 actions, the holding in Lombard expressly assimilated to its rationale suits involving an "independent supplementary cause of action like an action under the Civil Rights Act [ i. e., § 1983]." Id. at 637. Since the instant claim plainly meets this description, we follow Lombard and Newman in finding no bar in the prior state proceedings to the present litigation in the federal courts of a constitutional claim not already decided.
The plaintiffs' argument, that they have a cause of action based directly on the Fourteenth Amendment's Due Process Clause and over which the court has jurisdiction under 28 U.S.C. § 1331, was not presented in the complaint with the utmost clarity:
Jurisdiction
1. This is an action for damages under
42 U.S.C. § 1983 and this Court is vested with jurisdiction pursuant to
28 U.S.C. § 1331, the amount in controversy being in excess of $10,000.00 and the controversy arising under the Constitution and laws of the United States [.]
Admittedly, despite the later mention of due process rights in paragraph 10 of the complaint, quoted supra, the complaint may at first glance appear to be stating only a single cause of action — one under 42 U.S.C. § 1983. Closer examination, however, would reveal that the plaintiffs are also pursuing a separate claim for unconstitutional deprivation of property with jurisdiction based on 28 U.S.C. § 1331. First of all, the complaint mentions only one jurisdictional provision ( 28 U.S.C. § 1331) and that provision is not the one implementing the cause of action created by 42 U.S.C. § 1983 ( see 28 U.S.C. § 1343 ). Secondly, if the only cause of action were one based on § 1983, the complaint's assertion of more than $10,000 in controversy would be irrelevant because § 1983 suits may proceed regardless of the amount in controversy. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972); Douglas v. City of Jeannette, 319 U.S. 157, 161, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). The artlessness of the complaint's draftsmanship notwithstanding, "substantial justice" required that the district court take cognizance of the plaintiffs' § 1331-related theory of relief. Fed.R.Civ.P. 8(f); 2A J. W. Moore, Federal Practice ¶ 8.34 (2d ed. 1974). At the outset, then, we reject the appellee's contention that the appellants are precluded from pursuing this theory on appeal by their alleged failure to raise it first in the court below.
In holding that the plaintiffs' complaint states a cause of action stemming from the Due Process Clause of the Fourteenth Amendment, we are guided by the Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The plaintiff Bivens alleged that federal narcotics agents acting under color of federal law illegally entered and searched his apartment and manacled and arrested him for supposed narcotics violations. As in the instant case, only 42 U.S.C. § 1983 was cited in the complaint's jurisdictional statement as creating the cause of action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F.Supp. 12, 13 (E.D.N.Y. 1967). This provision was obviously inapplicable, however, for its scope is very expressly limited to deprivations of federal rights under color of state or territorial law. The district court so held, id. at 13-14, but it went on to find, on the basis of the complaint's reliance on 28 U.S.C. § 1331 (as well as 28 U.S.C. § 1343) and allusion to a violation of "constitutional rights," that Bivens was also resting his suit for damages directly on the Fourth Amendment with its prohibition against "unreasonable searches and seizures." The court rejected this latter claim, though, as lacking both a substantive source and jurisdictional basis. Id. at 14-16. As the Court of Appeals indicated, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 409 F.2d 718, 719-20 (2d Cir. 1969), the district court's alternative, jurisdictional ground for dismissing the Fourth Amendment-based claim ran afoul of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), which established that federal courts have federal question jurisdiction over a cause of action arising out of the Constitution. This court agreed, on the other hand, with the district court's resolution of the issue not reached in Bell: whether a cause of action based on a provision of the Constitution was one upon which relief could be granted. Id. at 720-26, 66 S.Ct. 773.
In reversing, the Supreme Court addressed itself only to the viability of causes of action predicated on the Fourth Amendment. The Bivens Court stated its rationale for upholding the complaint against a motion to dismiss, however, in terms inviting broader application:
Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But "it is . . . well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood,
327 U.S., at 684,
66 S.Ct., at 777 . . . The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. [Citations omitted] . . . "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison,
1 Cranch 137, 163,
2 L.Ed. 60 (1803).
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We conclude, therefore, that the Braults' invocation of the Fourteenth Amendment's Due Process Clause as the source of their claim for relief comes within Bivens' sweeping approbation of constitutionally-based causes of action.
As the Court in Bivens indicated, however, the adjudication of some claims rooted in the Constitution may be precluded by "special factors counselling hesitation in the absence of affirmative action by Congress." Id. at 396, 91 S.Ct. at 2005. In the case now before us, the appellee has brought to the court's attention only one potential "special factor": the defendant is a municipality. Since Congress excluded municipalities from the scope of 42 U.S.C. § 1983, Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), it may be argued that courts should be slow to infer that Congress meant in later enacting 28 U.S.C. § 1331 to provide an alternative device to sue municipalities for violations of federal rights. See Perzanowski v. Salvio, 369 F.Supp. 223, 230 (D.Conn. 1974). If a construction of § 1331 as authorizing such suits would render meaningless the immunity enjoyed by municipalities under § 1983, we might find this argument more persuasive. This is not in fact the case, however, for § 1331, with its amount in controversy requirement, would preserve the municipality's § 1983 immunity as to actions not involving this minimum sum; suits based on § 1983, it will be remembered, see supra, need not satisfy an amount in controversy requirement. Bell v. Hood and Bivens itself, moreover, caution against assuming that Congress' exemption for municipalities under § 1983 informed its efforts four years later in establishing federal question jurisdiction. For while Congress placed suits against federal officials beyond the scope of § 1983 with no less — and, indeed, probably far more — clarity than it proscribed suits against municipalities, the Court in these two cases confirmed that § 1331 vested federal jurisdiction over civil rights actions against federal officers. We reject the view, therefore, that municipalities enjoy any special status which would immunize them from suits to redress deprivations of federal constitutional rights. See City of Kenosha v. Bruno, 412 U.S. 507, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (concurring opinion of Brennan Marshall, JJ.); Dupree v. City of Chattanooga, 362 F.Supp. 1136, 1138-39 (E.D. Tenn. 1973); Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532, 1558-59 (1972).
Municipalities do not share the states' Eleventh Amendment immunity. Workman v. New York City, Mayor, Aldermen and Commonalty, 179 U.S. 552, 565, 21 S.Ct. 212, 45 L.Ed. 314 (1900).
42 U.S.C. § 1983 derives from the Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13. The precursor of 28 U.S.C. § 1331(a) is the Act of March 3, 1875, ch. 137, § 1, 18 Stat. 470.
The original $500 threshold has been increased in several steps to the present $10,000.
Although the Court in City of Kenosha, supra, did not decide this issue, its discussion of jurisdiction under § 1331 may intimate that it shares the concurring justices' broad view of constitutionally-founded causes of action. See City of Kenosha, supra, 412 U.S. 507 at 514.
The plaintiffs have stated a cause of action under the Due Process Clause of the Fourteenth Amendment for which relief may be granted. We therefore reverse the district court's dismissal of the complaint and remand for trial.
Reversed and remanded.
MANSFIELD, Circuit Judge:
Gerard and Gemma Brault brought suit against the Town of Milton, Vermont, in the United States District Court for the District of Vermont, seeking damages under the Civil Rights Act of 1871, 42 U.S.C. § 1983, on their claim that the Town had deprived them of their property rights without due process in violation of the Fourteenth Amendment. The district court, Albert W. Coffrin, Judge, granted the Town's motion to dismiss the complaint on the ground that § 1983 does not apply to the Town, a municipality, citing Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Upon appeal the Braults contend that they are entitled to base their damage suit directly on the Fourteenth Amendment. In view of the importance of that issue we decided, following a decision by a panel of this court, to grant appellee's application for a rehearing of the appeal en banc and on April 17, 1975, an order was accordingly entered. However, upon further examination of the record we find it unnecessary to resolve the Fourteenth Amendment and several other issues raised by the parties for the reason that the complaint, even when liberally construed in the Braults' favor, must be dismissed for failure to state a claim entitling them to relief.
Federal jurisdiction is invoked under 28 U.S.C. § 1331, the complaint alleging that the amount in controversy exceeds $10,000. Since plaintiffs have drawn their complaint so as to seek recovery under the Constitution and laws of the United States, this court has jurisdiction to hear the case, even if the complaint ultimately fails to state a claim. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
The present case arises out of litigation between the same parties in the Vermont state courts, in which the Town sought to enjoin the Braults from building a mobile home park in violation of a zoning ordinance. The heart of the Braults' present claim is stated in the complaint as follows:
"10. The acts of Defendant Town in obtaining and maintaining the injunction is referred to under a zoning ordinance that they knew, or should have known, to be invalid, deprived Plaintiffs of the use, enjoyment, profits and value of property without due process of law in contravention of the 14th Amendment of the Constitution of the United States;"
The undisputed background of the foregoing allegation, as set forth in decisions of the Vermont Supreme Court, is that in May, 1967, the Town temporarily succeeded in enforcing a recently adopted zoning ordinance by filing suit against the Braults in the Chittenden County Court of Chancery, State of Vermont, and obtaining the issuance by that court of a temporary injunction restraining the Braults from constructing a mobile home park on their land.
The injunction was granted, after notice and an evidentiary hearing, on the basis of findings made by the Chancellor. It became permanent in 1969. Upon appeal the Vermont Supreme Court held the zoning ordinance invalid because of procedural defects in its adoption, Town of Milton v. Brault, 129 Vt. 431, 282 A.2d 681 (1971); Town of Milton v. LeClaire, 129 Vt. 495, 282 A.2d 834 (1971). Accordingly it dissolved the injunction and remanded the case to the county court for the purpose of assessing damages pursuant to the injunction bond and a Vermont "injunction damages" statute, 12 V.S.A. § 4447, which provided that, upon dissolution of an injunction by final decree in favor of a defendant, the latter may recover his actual damages caused by the wrongful issuance of the injunction.
The text of the warning of the town meeting called to vote on the adoption of the zoning ordinance, which was mailed to voters and published in local newspapers, failed to contain the title of the zoning plan, the date of its adoption by the Town's board of selectmen, and the location in the town where it was posted, as required by 24 V.S.A. § 3004(c). Town of Milton v. LeClaire, 129 Vt. 495, 282 A.2d 835 (1971). However, the plan went into effect and at a later town meeting a petition of voters to rescind the ordinance failed of adoption. 129 Vt. at 498, 282 A.2d at 836. Conceding that the "omissions in the warning are of a procedural nature," the Vermont Supreme Court nevertheless held "that strict compliance with the required procedures is the rule if a municipality is to have the right to exercise zoning authority," 129 Vt. at 499, 282 A.2d at 836.
Prior to 1971, 12 V.S.A. § 4447 provided:
"When an injunction in chancery is dissolved by final decree in favor of the defendant, he shall be entitled to recover his actual damages caused by the wrongful issuing of the injunction which shall be ascertained by reference to a master."
Upon remand the county court awarded the Braults $86,411. Upon a second appeal the Vermont Supreme Court reduced the award to $500, which was the amount of the injunction bond posted by the Town, on the ground that the Town as a municipality was entitled to immunity from liability for its good faith enforcement of zoning ordinances except to the extent that it had waived its immunity by purchasing insurance, or posting an injunction bond, in this case $500. Town of Milton v. Brault, 132 Vt. 377, 320 A.2d 630 (1974). The court characterized the Town's action as a "good faith, albeit subsequently wrongful, enforcement of its zoning ordinances." 132 Vt. at 379, 320 A.2d at 632. Upon reargument, the Vermont Supreme Court adhered to its decision, further holding that, in addition to the Town's immunity, the zoning administrator of the Town was protected against liability for performance of duties that were judicial or quasi-judicial in nature, citing Nadeau v. Marchessault, 112 Vt. 309, 313, 24 A.2d 352 (1942).
29 V.S.A. § 1403 provides:
Having succeeded in recovering only $500 in the Vermont state court proceeding, the Braults commenced the present damage action in the United States District Court for the District of Vermont. The Town promptly moved pursuant to Rule 12(b)(6), Fed.R.Civ.P. for dismissal of the Braults' complaint on several different grounds: (1) that the judgment in the Vermont state courts, being between the same parties with respect to the same claim, precluded the Braults from asserting their present claim; (2) that the Town was not a "person" within the meaning of 42 U.S.C. § 1983; (3) that the Town's invocation of the state's judicial process to enforce its ordinance did not violate any right granted under § 1983 or the Fourteenth Amendment; (4) that the Town was immune from liability because it acted in a prosecutorial or quasi-prosecutorial role in seeking to enforce the ordinance, which was within the sphere of its legitimate legislative activity and (5) that the Town's initiation of civil proceedings to enforce its ordinance, being insufficient to render a private person liable for wrongful use of process, was insufficient to state a violation of § 1983 or the Fourteenth Amendment.
Under Local Rule 9 of the United States District Court for the District of Vermont the Braults, upon being served with the Town's motion and memorandum stating its legal contentions and authorities, were required, if they desired to oppose the motion, to file within 10 days a brief or memorandum stating their contentions. The Rule further provides that "in the absence of an opposing memorandum, the motion shall be deemed unopposed and shall be considered without argument."
After being served with the Town's motion and supporting memorandum the Braults did not respond and their complaint was dismissed without oral argument. Thereafter they served and filed a memorandum in opposition to the motion to dismiss. However, their failure, before filing a notice of appeal one week after the district court's decision, to move for reargument or reconsideration, raises a serious doubt as to whether we should in any event consider questions that were not raised in timely fashion in the district court. See McGrath v. Manufacturers Trust Co., 338 U.S. 241, 70 S.Ct. 4, 94 L.Ed. 31 (1949); Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932).
DISCUSSION
The Braults do not seriously question the validity of the district court's holding that as a municipality the Town of Milton cannot be held in damages under § 1983, Monroe v. Pape, supra. However, they seek to avoid the impact of that decision by urging that, regardless of § 1983, their damage suit must be upheld on the ground that it is derived directly from the Fourteenth Amendment itself. In support of the validity of such a constitutionally-based claim they cite Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and the concurring opinions of Justices Brennan and Marshall in City of Kenosha v. Bruno, 412 U.S. 507, 516, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); see also Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L. Rev. 1532, 1558 (1972). The Town, on the other hand, while not abandoning any of the other grounds urged by it below, contends that municipalities are immune from suits for damages, whether based on § 1983 or directly on the Fourteenth Amendment, and that in any event the Braults are precluded on grounds of res judicata from pursuing their present damage claims since they chose, following the Vermont Supreme Court's dissolution of the injunction against them, to have their claim adjudicated by the state courts, where the Town's immunity was upheld.
Interesting as these questions are, we find it unnecessary to resolve them for the reason that the complaint fails to state a claim entitling the plaintiffs to relief, regardless of the theory upon which the action is based. Until a plaintiff has set forth a short and simple statement of facts indicating some plausible basis for relief, any discussion of other possible barriers on his road to relief is superfluous. Assuming that a suit for damages can be founded directly on the Fourteenth Amendment, a question we do not here decide, the allegations made by the Braults, even given the liberal construction mandated by the principles underlying "notice pleading," do not demonstrate any basis for a claim that their rights under that Amendment have been violated.
The gist of the Braults' complaint is that the Town violated their due process rights by invoking the processes of the Vermont state courts to enforce an ordinance which turned out to be invalid. Absent a claim of malice — and no such claim is stated here — a plaintiff's use of judicial process for enforcement of an alleged right is the very antithesis of denial of due process. The court's function is to assure that no party will be deprived of property without satisfying the fundamentals of due process, including the requirement that the defendant be furnished with notice and a statement of the claim against him and the opportunity to prepare and present a defense, a hearing, the right to confront and cross-examine witnesses, and findings. Groppi v. Leslie, 404 U.S. 496, 500-501, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972). It is undisputed that all of these requirements were met in the Town's suit against the Braults, which resulted in findings and an order by the Chancellor of the Chittenden County Court holding and enforcing the zoning ordinance in dispute. That decision, it is true, was later found by the Vermont Supreme Court to be erroneous because of procedural defects in the adoption of the zoning ordinance in issue. However, the Fourteenth Amendment does not protect a litigant against judicial error, Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). Thus, none of the proceedings in the Vermont courts denied the Braults due process of law. And if the Braults' rights under the Due Process clause were not violated in the Vermont courts, the Town could not have violated their due process rights by bringing them into those courts. If every unsuccessful lawsuit were to be viewed as a violation of due process, bona fide litigants would be deterred from invoking the courts to adjudicate their claims, since a plaintiff would risk substantial damages if his claim should not be upheld. Not even the courts of England which, unlike our own, impose very substantial costs upon the unsuccessful litigant, have permitted recovery of damages for a civil suit brought in good faith; indeed, they have been reluctant to impose any liability at all for wrongful institution of civil proceedings. See Cotterell v. Jones, 11 C.B. 713, 138 Eng.Rep. 655 (1851); Quartz Hill Gold Min. Co. v. Eyre, 11 Q.B.D. 674 (1883). A number of American states likewise refuse to impose such liability or strictly limit it. See, e.g., La Salle National Bank v. 222 East Chestnut St. Corp., 267 F.2d 247 (7th Cir.), cert. denied, 361 U.S. 836, 80 S.Ct. 88, 4 L.Ed.2d 77 (1959) (Illinois law); Ring v. Ring, 102 R.I. 112, 228 A.2d 582 (1967).
The only exception which some states have made to the general rule that a person may not be held to respond in damages for instigation of civil litigation is where the party presently sued (1) had no probable cause to believe in the merits of his earlier lawsuit and (2) acted with malice in instituting the original suit. Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116 (1878); Northern Oil Co. v. Socony Mobil Oil Co., 347 F.2d 81 (2d Cir. 1965) (diversity suit based upon issuance of an injunction pendente lite by Vermont Court); Masi v. Laferrieri, 131 Vt. 363, 306 A.2d 701 (1973); Powell v. Woodbury, 85 Vt. 504, 83 A. 541 (1912); Carleton v. Taylor, 50 Vt. 220 (1877); Closson v. Staples, 42 Vt. 209 (1869); Restatement of Torts, § 674; W. Prosser, Torts, § 120 (4th ed. 1971). The essential elements of such a claim were summed up by the Supreme Court in Crescent City Live Stock Co. v. Butchers' Union Slaughter-House Co., 120 U.S. 141, 7 S.Ct. 472, 30 L.Ed. 614 (1887) as follows:
"Want of probable cause, and the existence of malice, either express or implied, must both concur to entitle the plaintiff in an action for a malicious prosecution to recover."
Id. at 149,
7 S.Ct. at 476.
The complaint here alleges that the Town, in obtaining the injunction, acted "under a zoning ordinance that they [presumably the Town] knew, or should have known, to be invalid". Although this allegation might suffice to claim lack of probable cause, it fails completely to allege malice. To be sure, the "malice" required as an element of the claim is a term of art. "The `malice' that lies at the basis of the action does not necessarily involve spite, hatred, malevolence, or a corrupt design; it is sufficiently established by showing that the baseless suit was instituted from any improper and wrongful motive." Sparrow v. Vermont Savings Bank, 95 Vt. 29, 33, 112 A. 205, 207 (1921). The requirement of "malice" could possibly be met by alleging that the defendant, in filing his original suit, acted from a motive other than securing adjudication of his claim, see W. Prosser, supra, § 120 at 855, but not even the most generous reading of the Braults' complaint reveals any allegation that the Town acted from any motive other than to enforce the zoning ordinance. Furthermore, the Vermont Supreme Court's repeated characterization of the Town's injunction suit as having been brought "in good faith" and the county court's initial grant of injunctive relief are inconsistent with a claim of malice or bad faith. See Stewart v. Sonneborn, supra.
Though a jury in a malicious prosecution suit may be entitled to infer the existence of the requisite malice from the same evidence used to establish probable cause, see Sparrow v. Vermont Savings Bank, supra, 95 Vt. at 33, 112 A. at 207, the possibility of making such an inference does not remove malice as an essential element of the claim. If the Braults' allegation that the Town "knew or should have known" of the invalidity of the ordinance were to be accepted as a sufficient allegation of malice to state a claim, the effect would be to eradicate this careful distinction between malice and probable cause, and make the two synonymous as a matter of law. The requirement that plaintiffs make allegations of malice in order to state a claim such as the one the Braults attempt to assert is hardly likely to prove burdensome to those plaintiffs who have meritorious claims based upon wrongful institution of civil actions. "Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Fed.R.Civ.P. 9(b).
While these requirements for maintaining a common law malicious prosecution suit, time-honored though they are, do not bind us in determining whether the plaintiffs have stated a claim for violation of their Fourteenth Amendment rights, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, 403 U.S. at 392-395, 91 S.Ct. 1999, the experience of the common law is nonetheless a valuable source of instruction in arriving at minimum standards for imposition of liability based essentially on tortious conduct, whether or not it be labelled as a violation of a "constitutional" or some other right. Indeed, in Tucker v. Maher, 497 F.2d 1309 (2d Cir. 1974), we held that a plaintiff suing under the Civil Rights Act of 1871, 42 U.S.C. § 1983, for damages caused by the enforcement of unconstitutional state lien and attachment statutes must establish the elements of malicious prosecution, i. e., "that the civil proceedings were initiated without probable cause and primarily for a purpose other than that of securing the adjudication of the claim on which the proceedings were based." (497 F.2d at 1315). The obvious policy in favor of encouraging resort to the courts would hardly be furthered by imposition of liability without fault, which would only serve to deter bona fide litigants with meritorious claims from seeking judicial relief.
Even if we were to assume that, regardless of the non-existence of a claim of malice or of some purpose on the part of the Town other than enforcement of its ordinance, one damaged as the result of the erroneous issuance of an injunction should be entitled to damages from the person who obtained it, the Braults' inability to recover in the present case clearly did not arise, as claimed, from a denial of due process in the Town's injunction suit against them. Rather it arose from the fact that under Vermont law a municipality is immune from liability (including that for damages caused by wrongful issuance of an injunction) as authorized by 12 V.S.A. § 4447 except to the extent that the immunity is waived by purchase of liability insurance, 29 V.S.A. § 1403. However, since the Braults' complaint cannot be construed, even by the wildest stretch of imagination, as attacking this sovereign immunity or as claiming that the immunity is inapplicable, we are left with a complaint that simply fails to state a claim for relief. Accordingly the district court's decision is affirmed.
The Braults' plea to the Vermont Supreme Court for abolition of the doctrine of sovereign immunity was rejected, that court stating:
"The defendants urge this Court to join other states which have abolished the doctrine of sovereign immunity. This doctrine was created by the judiciary and the defendants assert that `[t]he judicial branch of government need not call to, or wait upon, the legislative branch to change a rule of law which the judicial branch itself created.'
Abernathy v. Sisters of St. Mary's, 446 S.W.2d 599 (Mo. 1969).
"However, in the nearby jurisdictions cited by defendants, the courts pointed out that the legislative silence on the issue did not hinder their decisions. These courts were not faced with definite legislative approval of the doctrine of sovereign immunity, as is this Court. . . .
"Furthermore, we find the reasoning in various New Jersey cases very persuasive support for the proposition that, even if our Legislature had not spoken, the good faith action of this plaintiff should not beget liability beyond the amount of the injunction bond.
"`The power of a municipality to adopt zoning regulations pursuant to statutory authority is an essential aspect of the police power. The governing body must be free to exercise that power in good faith to amend or alter its zoning regulations when it determines the public interest so requires.'
Veling v. Borough of Ramsey, 94 N.J. Super. 459,
228 A.2d 873 (1967)."
Town of Milton v. Brault, 132 Vt. at 380, 320 A.2d at 632-33.