Bennett v. Detroit Police Chief

• Decision Date: 19 December 2006
• Docket Number: Docket No. 262124.,Docket No. 262188.
• Citation: 732 N.W.2d 164,274 Mich. App. 307
• Parties: John Kenneth BENNETT, Plaintiff-Appellee/Cross-Appellant, v. DETROIT POLICE CHIEF and City of Detroit, Defendants-Appellants, and Mayor of Detroit, Defendant/Cross-Appellee. John Kenneth Bennett, Plaintiff-Appellee, v. Detroit Police Chief and City of Detroit, Defendants-Appellants, and Mayor of Detroit, Defendant.
• Court: Court of Appeal of Michigan — District of US

732 N.W.2d 164

274 Mich. App. 307

John Kenneth BENNETT, Plaintiff-Appellee/Cross-Appellant, v. DETROIT POLICE CHIEF and City of Detroit, Defendants-Appellants, and Mayor of Detroit, Defendant/Cross-Appellee.

John Kenneth Bennett, Plaintiff-Appellee, v. Detroit Police Chief and City of Detroit, Defendants-Appellants, and Mayor of Detroit, Defendant.

Docket No. 262124.

Docket No. 262188.

Court of Appeals of Michigan.

Submitted November 14, 2006, at Detroit.

Decided December 19, 2006.

Approved for publication February 20, 2007, at 9:05 a.m.

Released for Publication May 14, 2007.

Stefani & Stefani, Professional Corporation (by Michael L. Stefani and Frank J. Rivers), Royal Oak, for the plaintiff.

Nancy Ninowski, Valerie A. Colbert-Osamuede, Dara M. Chenevert, and Grant Ha, Assistant Corporation Counsel, for the defendants.

Before: WHITBECK, C.J., and SAAD and SCHUETTE, JJ.

PER CURIAM.

These consolidated appeals involve the suspension of plaintiff John Kenneth Bennett, a city of Detroit police officer, and his complaint against the city of Detroit, Chief of Police Jerry Oliver (Chief Oliver), and the Mayor of the city of Detroit, Kwame Kilpatrick (Mayor Kilpatrick). The trial court granted summary disposition to Mayor Kilpatrick. However, the trial court denied summary disposition to the city of Detroit and Chief Oliver. The legal issues presented to this Court involve: (1) whether governmental immunity extends to Chief Oliver, under MCL 691.1407(5), and to the city of Detroit, under MCL 691.1407(1); and (2) whether this case involves a genuine issue of material fact with respect to Mayor Kilpatrick's involvement in plaintiff's suspension. We reverse the trial court's order denying Chief Oliver and the city of Detroit's motion for summary disposition based on governmental immunity. However, we affirm the trial court's order granting Mayor Kilpatrick's motion for summary disposition.

I. FACTS

In November 2002, plaintiff created and registered the internet website www. firejerryo.com. Plaintiff claims that the purpose of the website was to "provide a forum for himself and others to express their views on matters of public concern."

The website would often feature articles and editorial reviews that were critical of the new chief of police, Chief Oliver. However, at one point, Chief Oliver publicly expressed appreciation and admiration for the website, stating that "[i]t is a very well done site . . . I wish I had that kind of skill working on the official Web site of the police department." The website continued to report negative information about Chief Oliver, Mayor Kilpatrick, and the city of Detroit. The website also provided updates on news concerning the Detroit Police Department, as well as a venue for anyone who accessed the website to log on and share their opinion in one of the website's various blogs.

On July 9, 2003, Chief Oliver suspended plaintiff's duty status with pay, for conduct unbecoming an officer. The alleged conduct was operating a website in violation of the rules and regulations of the Detroit Police Department. On September 18, 2003, Chief Oliver recommended the suspension of plaintiff's duty status without pay to the City of Detroit Board of Police Commissioners (the Board). The Board agreed with Chief Oliver's recommendation, determining that plaintiff's misconduct prevented him from continuing his duties as a police officer.

Plaintiff appealed the Board's decision to grievance arbitration, which upheld the Board's decision to suspend plaintiff's duty status without pay. In October 2003, plaintiff filed a one-count complaint in the Wayne Circuit Court alleging wrongful discharge for the exercise of his constitutionally guaranteed right of free speech in violation of Michigan public policy. In August 2004, defendants filed a motion for summary disposition based in part on governmental immunity and in part on the contention that Michigan law precludes damage claims against municipalities for violations of the Michigan Constitution. That motion was denied with respect to Chief Oliver and the city of Detroit, but was granted with respect to Mayor Kilpatrick. In November 2004, plaintiff filed his own motion for partial summary disposition, arguing that there is no genuine issue regarding any material fact and that his claim can be decided as a matter of law. That motion was also denied.

Chief Oliver and the city of Detroit now appeal as of right the denial of their motion for summary disposition on grounds of governmental immunity. Plaintiff cross-appeals, asking this Court to reverse the trial court's denial of his motion for partial summary disposition and granting defendants' motion with respect to Mayor Kilpatrick. Defendants also appeal by leave granted the trial court's denial of their motion for dismissal based on the argument that there can be no Michigan Constitutional monetary damage claims against a municipality and its employees. All appeals have been consolidated.

II. GOVERNMENTAL IMMUNITY

Chief Oliver and the city of Detroit argue that the trial court erred when it denied their motion for summary disposition because they were entitled to governmental immunity. We agree.

A. Standard of Review

This Court reviews a trial court's order on a motion for summary disposition de novo. Beaudrie v. Henderson, 465 Mich. 124, 129, 631 N.W.2d 308 (2001). Further, the "applicability of governmental immunity is a question of law that is reviewed de novo on appeal." Cain v. Lansing Housing Comm., 235 Mich.App. 566, 568, 599 N.W.2d 516 (1999).

B. Analysis¹

(1) Chief Oliver's Governmental Immunity

Michigan law provides that [a] judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority. MCL 691.1407(5). Plaintiff argues that Chief Oliver not only acted outside the scope of his authority in firing plaintiff, but that he also violated the law. We disagree. In making his claim, plaintiff relies heavily on our Supreme Court's decision in Marrocco v. Randlett, 431 Mich. 700, 433 N.W.2d 68 (1988). In that opinion, our Supreme Court held that

the highest executive officials of local government are not immune from tort liability for acts not within their executive authority. The determination whether particular acts are within their authority depends on a number of factors, including the nature of the specific acts alleged, the position held by the official alleged to have performed the acts, the charter, ordinances, or other local law defining the official's authority, and the structure and allocation of powers in the particular level of government. [Id. at 710-711, 433 N.W.2d 68.]

In Marrocco, the plaintiff was a former city attorney who alleged several instances of misconduct directed toward him by the mayor and city treasurer. Id. at 702-706, 433 N.W.2d 68. For instance, he alleged that the mayor used his influence to interfere with his reinstatement as city attorney after a leave of absence. Id. at 704, 433 N.W.2d 68. In addition, the plaintiff alleged several other occasions when the mayor and the treasurer put pressure on other governmental offices to fire or otherwise harass the plaintiff. Id. at 705-706, 433 N.W.2d 68. The plaintiff also alleged that the treasurer harassed him by raising the tax assessment on his home. Id. at 706, 433 N.W.2d 68. He was forced to sell the residence, and subsequently the tax was reduced. Id.

In reviewing the facts before it, our Supreme Court noted that `the intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law is not the exercise of a governmental function.' Id. at 707-708, 433 N.W.2d 68 (citations omitted). The Court went on to analyze the city ordinance at issue and determined that the mayor did not have any authority whatsoever to interfere with the plaintiff's reinstatement as city attorney following his leave of absence. Id. at 709-710, 433 N.W.2d 68. Concerning the other allegations, the Court noted that there was not enough factual development to determine whether the mayor and treasurer's acts were within the scope of their executive authority. Id. at 710, 433 N.W.2d 68. The case was remanded to the trial court to determine those issues. Id. at 711, 433 N.W.2d 68.

Plaintiff insists that the facts of the instant action are analogous to those of Marrocco and that Chief Oliver was acting outside the scope of his authority as chief of police when he suspended plaintiff. However, we believe that Chief Oliver was acting within the scope of his express authority, and, therefore, the instant action is distinguishable from Marrocco.

The plaintiff in Marrocco alleged several instances of harassment by the public official defendants. Here, plaintiff admits that prior to his suspension, he was never contacted about the website. In fact, Gary Brown, the former Deputy Chief of Police, stated in his affidavit that Chief Oliver checked the website frequently, found some of the contents humorous, and that the website was generally only briefly discussed by the department. Plaintiff contends that the Court in Marrocco considered the context and circumstances surrounding the defendants' inappropriate actions in that case. But the Marrocco Court did no such thing. Rather, it turned to the language of the local ordinance and, on the basis of the text, determined that the defendants simply did not act within their executive authority. Marrocco, supra at 708-710, 433 N.W.2d 68.

Here, there are three sources of local law that expressly grant Chief Oliver the authority to suspend plaintiff: the Detroit City Charter, the Detroit Police Department rules and regulations, and the collective bargaining agreement between the city of Detroit and the Detroit Police Officers' Association. All three...