Berlin v. Superintendent of Public Instruction

• Decision Date: 21 November 1989
• Docket Number: Docket Nos. 98770,99409
• Citation: 448 N.W.2d 764,181 Mich.App. 154,57 Ed. Law Rep. 994
• Parties: Barry BERLIN, Plaintiff-Appellant, v. SUPERINTENDENT OF PUBLIC INSTRUCTION, Defendants-Appellees. 181 Mich.App. 154, 448 N.W.2d 764, 57 Ed. Law Rep. 994
• Court: Court of Appeal of Michigan — District of US

Page 764

448 N.W.2d 764

Barry BERLIN, Plaintiff-Appellant, v. SUPERINTENDENT OF PUBLIC INSTRUCTION, Defendants-Appellees.

Docket Nos. 98770, 99409.

181 Mich.App. 154, 448 N.W.2d 764, 57 Ed. Law Rep. 994

Court of Appeals of Michigan.

Submitted Oct. 13, 1988.

Decided Nov. 7, 1989.

Released for Publication Nov. 21, 1989.

[181 MICHAPP 157] Garrett & Rogers, P.C. by Jon R. Garrett, Detroit, for Barry berlin.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Gerald F. Young, and Paul J. Zimmer, Asst. Attys. Gen., for Phillip Runkel.

Law Offices of Puleo, Noeske & Tarnavsky by Michael A. Martone, Troy, for Leonard DeMak, Eric Follo, and Maxine Mays.

Before HOLBROOK, P.J., and SAWYER and BATZER, ^* JJ.

PER CURIAM.

Plaintiff appeals from grants of summary disposition in favor of defendants on claims sounding in common-law tort and under 42 U.S.C. Sec. 1983, all relating to incidents of alleged conduct calculated to deter plaintiff from exercising his right to engage in free speech. We affirm as to defendant Phillip Runkel with respect to all claims and as to the remaining defendants with respect to the common-law tort claims, but we reverse as to the latter defendants with respect to the Sec. 1983 claim.

Plaintiff is a supervisor in a program for the severely mentally impaired operated under the auspices of the Oak Park Schools. Defendant Runkel was, at all times pertinent to this case, Superintendent of Public Instruction for the State of Michigan. The other defendants (the Oak Park defendants) exercised supervisory control over plaintiff in the course of his employment with the Oak Park Schools: DeMak as Superintendent of the Oak Park Schools, Follo as Assistant Superintendent, and Mays as Director of Special Education. [181 MICHAPP 158] Plaintiff and the Oak Park defendants agree that plaintiff's job performance prior to this controversy was outstanding. According to plaintiff's complaint, Mays advised plaintiff and other staff members by memorandum of proposed rules and regulations promulgated by the State Department of Education pertaining to special education and handicapped students. In view of the effect of the proposed regulations on Oak Park programs, Mays encouraged staff to communicate their opinions to the Department of Education. In early November of 1984, plaintiff attended a public hearing conducted by the State Board of Education and voiced his opinions in that forum. Plaintiff contends that it was understood that his comments were made in his personal capacity and did not reflect any official position of the Oak Park Schools. Also in attendance at that hearing was defendant Runkel, who apparently took umbrage at plaintiff's remarks. On November 7, 1984, at a meeting attended by Runkel and DeMak, Runkel criticized plaintiff's conduct. The same day, plaintiff met with defendant Mays, who advised him of critical comments made by Runkel and others. Thereafter, plaintiff took pains to clarify that his comments represented only his own personal views. However, on November 19, 1984, DeMak issued a memorandum warning that employees making public comment without prior clearance from the superintendent "must make it abundantly clear ... that they speak only as an individual." Subsequently, an article submitted for publication by plaintiff in September of 1984 appeared in a national trade journal, further aggravating the negative publicity attributed by the Oak Park defendants to plaintiff. The Oak Park defendants took a series of measures designed to muzzle plaintiff's input into the controversy over the proposed rules, culminating [181 MICHAPP 159] in the issuance of a written reprimand by defendant Mays dated December 3, 1984. (The reprimand was apparently removed from the files subsequent to this complaint.) It further appears from the representations of the parties that, after the institution of this suit, the Oak Park defendants recommended that plaintiff's contract of employment not be renewed, but that the contract was in fact renewed over the Oak Park defendants' objections after a hearing conducted by the school board.

Plaintiff filed suit in circuit court alleging four counts: (1) a Sec. 1983 claim for infringement of free speech, (2) tortious interference with economic expectations, (3) defamation, and (4) intentional infliction of emotional distress. In granting summary disposition, the trial court ruled that the latter three common-law tort claims were barred by defendants' executive-level official immunity and that the Sec. 1983 claim failed to allege a deprivation of a constitutional right.

Plaintiff argues that defendants are not immune because the allegedly tortious conduct was ultra vires. Plaintiff further argues that summary disposition was premature because he was not afforded an opportunity for complete discovery. If the motion for summary disposition was premised on the absence of a genuine issue of material fact pursuant to MCR 2.116(C)(10), the curtailment of discovery may be a valid objection to the grant of summary disposition. See Huff v. Ford Motor Co., 127 Mich.App. 287, 296, 338 N.W.2d 387 (1983). Although the Oak Park defendants moved for summary disposition in the alternative pursuant to subrules (C)(8) and (10), the circuit court did not specify which ground it relied upon in its immunity ruling. Since, however, plaintiff does not have the burden of pleading facts in avoidance of individual immunity, which is an affirmative defense, [181 MICHAPP 160] the correct subrule for testing summary disposition is MCR 2.116(C)(7). Canon v. Thumudo, 430 Mich. 326, 344, 422 N.W.2d 688 (1988). The mere mislabeling of a motion for summary disposition does not preclude appellate review if an appropriate factual record was preserved in the lower court. Hoffman v. Genesee Co., 157 Mich.App. 1, 9, 403 N.W.2d 485 (1987), lv. den. 428 Mich. 902 (1987). In this case, many of the facts essential to the immunity issue are undisputed, having been in large part established by the admissions in the Oak Park defendants' answer to plaintiff's complaint. We undertake appellate review by addressing the specific issues raised with an eye toward determining whether the factual record is sufficiently developed in light of the considerations appropriate to each issue. We add the caveat that remand may be appropriate if an opportunity for complete discovery stands a fair chance of demonstrating a genuine issue of material fact that would be decisive of a motion for summary disposition. See Ransburg v. Wayne Co., 170 Mich.App. 358, 360, 427 N.W.2d 906 (1988).

The test for individual immunity of governmental employees is stated in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 633-634, 363 N.W.2d 641 (1984):

We therefore hold that judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their judicial, legislative, or executive authority. Lower level officials, employees, and agents are immune from tort liability only when they are

1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;

2) acting in good faith; and

[181 MICHAPP 161] 3) performing discretionary, as opposed to ministerial acts.

Under this test, no individual immunity exists for ultra vires activities.

For purposes of individual immunity, ultra vires activities are defined as "those which are unauthorized and outside the scope of employment." Id., p. 631, 363 N.W.2d 641.

As to defendant Runkel, it is alleged as a factual matter only that he attended a hearing in which plaintiff made comments and that he later criticized plaintiff's conduct. As Superintendent of Public Instruction, Runkel was the principal executive officer of the State Department of Education. Const. 1963, art. 8, Sec. 3. Acting in this capacity, Runkel was entitled to the absolute immunity afforded the highest executive officials of state government. Even if it was not clear from Ross that absolute immunity would encompass intentional misconduct, id., pp. 632-633, 363 N.W.2d 641, the contours of absolute immunity assumed greater dimension in Marrocco v. Randlett, 431 Mich. 700; 433 N.W.2d 68 (1988), in which the Court set forth an analysis controlling claims of intentional tort:

We hold 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., pp. 710-711, 433 N.W.2d 68.]

It requires no extended discussion to conclude that Runkel's limited role in contributing to plaintiff's [181 MICHAPP 162] grievances did not contravene Runkel's broad-based authority set forth by constitution and statute to guide the formation and development of educational policy within this state. There is no suggestion of an intentional misuse of a badge of government exceeding Runkel's legitimate authority. Id., pp. 707-708, 433 N.W.2d 68. We agree with the circuit court that Runkel was entitled to summary disposition on the three common-law tort claims.

However, we are constrained to disagree with the circuit court that the Oak Park defendants were also entitled to absolute, executive-level immunity. This Court has previously held that the lower-level immunity test must be applied for tort claims against a school superintendent, Kirschner v. Carney-Nadeau Public Schools, 174 Mich.App. 642, 436 N.W.2d 416 (1989), lv. pending, and against a high school principal, Eichhorn v. Lamphere School Dist., 166 Mich.App. 527,...