Bloss v. Williams

• Decision Date: 24 December 1968
• Docket Number: Docket No. 4274,No. 3,3
• Citation: 15 Mich.App. 228,166 N.W.2d 520
• Parties: Floyd BLOSS, d/b/a Stardust Drive-In Theatre, and Floyd Bloss, Individually, Plaintiffs-Appellants, v. Richard C. WILLIAMS and James K. Miller, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 520

166 N.W.2d 520

15 Mich.App. 228

Floyd BLOSS, d/b/a Stardust Drive-In Theatre, and Floyd

Bloss, Individually, Plaintiffs-Appellants, v. Richard C. WILLIAMS and James K. Miller, Defendants-Appellees.

Docket No. 4274.

Court of Appeals of Michigan, Division No. 3.

Dec. 24, 1968.

Released for Publication April 11, 1969.

G. Thomas Johnson, Graham & Johnson, Muskegon, for plaintiffs-appellants.

VanderVeen, Freihofer & Cook, Lowell, for defendants-appellees.

Before FITZGERALD, P.J., and BOWLES ^* and GILLIS, JJ.

BOWLES, Judge.

Floyd Bloss, plaintiff, appeals from the grant of a summary judgment in favor of defendants, Richard Williams and James Miller. Plaintiff was, on April 24, 1965, the operator of the Stardust Drive-In Theatre in Kent county. On that date, defendant Miller was the prosecuting attorney for the county and defendant Williams was a county deputy sheriff.

The amended complaint alleges:

'That on the said date, the defendant, Richard C. Williams, in company with and at the direction of the defendant James K. Miller, proceeded to the projection room of the said Stardust Drive-In Theatre and placed an employee of the plaintiff, one John V. Whitman, under arrest.

'That the defendant Richard C. Williams was acting at the time in pursuance of his employment as a deputy sheriff, and was at the direction of the defendant, James K. Miller.

'That the said defendant, Richard C. Williams had no warrant for the arrest of the said John V. Whitman.

'That no misdemeanor, or any crime whatsoever was committed in the presence of the said Richard C. Williams at the said time and place, nor had any breach of the peace been committed by the said John V. Whitman.

'That pursuant to the said arrest, John V. Whitman was taken into custody and his liberty restrained by the defendant, Richard C. Williams and other officers at his direction.

'That pursuant to the said arrest, the defendant, Richard C. Williams, also at the direction of defendant, James K. Miller, seized certain motion picture films at the said time and place, to-wit: two motion picture films entitled 'The Fourth Sex' and 'Sexus.'

'That the said motion picture films were rightfully in the possession of the plaintiff, Floyd Bloss or his employees.

'That as a direct and proximate result of the said illegal arrest of John V. Whitman, and of the illegal seizure of the said motion picture films, the plaintiff, Floyd Bloss, suffered irretrievable business losses resulting from the fact that the said films were unavailable for showing and therefore he was unable to open his theater for business, for a substantial period of time.'

The criminal proceeding against Floyd Bloss was dismissed at preliminary examination.

Defendants moved for summary judgment, without filing an answer, on 2 grounds: quasi-judicial immunity and failure to state a claim upon which relief could be granted. The motion was granted because, in the trial court's words, 'Both the prosecuting attorney who acted in his quasi-judicial capacity and the police officer who acted at his direction are immune from civil liability.'

Plaintiff Bloss was not falsely arrested, it is conceded. He was arrested on April 24, 1965 after warrant had been issued. Complaint here is based upon the illegal arrest of plaintiff's employee, John V. Whitman, who is no longer a party plaintiff. Because of the illegal arrest of employee Whitman and the seizure of the film, plaintiff Bloss claims damages.

A motion for summary judgment was inappropriate. This motion is appropriate to test whether or not a plaintiff has stated a cause of action, and such a motion necessitates affidavits and cannot be granted from the face of the pleadings unless the pleadings: (1) affirmatively show the existence of every fact necessary for a complete defense, Brooks v. Fields (1965), 375 Mich. 667, 135 N.W.2d 346, and (2) disclose a fatal defect which could not be corrected by amendment. Nuyen v. Slater (1964), 372 Mich. 654, 127 N.W.2d 369.

Rather, the appropriate motion here would have been a motion for accelerated judgment under GCR 1963, 116. Assuming that the appropriate motion--that for accelerated judgment--had been filed, the question preliminarily is whether the asserted defense, quasi-judicial immunity, is a legal bar to plaintiff's claim.

The general rule is set forth in 27 C.J.S. District and Prosecuting Attorneys § 16, p 680, 'A district or prosecuting attorney is not liable for damages for acts and omissions within the scope of official duties, although he may be held responsible for acts beyond that scope.' In Bauers v. Heisel (CA 3, 1966), 361 F.2d 581, 589, the Circuit Court of Appeals for the Third Circuit ruled:

'In deciding the question of whether a prosecuting attorney is liable for acts done in his official capacity, we must decide whether his duties are sufficiently judicial as to cloak him with the same immunity afforded judges or are so closely related to those duties of law enforcement officials as to amerce him with potential civil liability for his imprudent actions. * * *'

The rationale is set forth in Yaselli v. Goff (CA 2, 1926), 12 F.2d 396, 406:

'* * * The public interest requires that persons occupying such important positions and so closely identified with the judicial departments of the government should speak and act freely and fearlessly in the discharge of their important official functions. * * *'

As to the scope of the immunity, Judge Learned Hand, in Gregoire v. Biddle (CA 2, 1949), 177 F.2d 579, 581, observed:

'The decisions have, indeed, always imposed as a limitation upon the immunity that the official's act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. * * *' ¹

In this State, a prosecuting attorney has been considered a quasi-judicial officer. People v. Bemis (1883), 51 Mich. 422, 424, 16 N.W. 794. C.L.1948, § 764.1 (Stat.Ann.1954 Rev. § 28.860) provides as to allowance of warrants by prosecuting attorneys:

'* * * Provided, however, That it shall not be lawful for any of the above named public officials to issue warrants in any criminal cases * * * until an order in writing allowing the same is filed with such public officials and signed by the prosecuting attorney for the county, or unless security for costs shall have been filed with said public officials.'

It is the duty of the prosecuting attorney to determine whether or not a warrant is necessary in a given criminal arrest situation. Such a statute, being remedial in character, is according to rules of construction to be liberally construed. The prosecutor's powers and duties include not only those expressly set forth in the statute but also such additional functions as may be necessarily implied from those specifically mentioned. 27 C.J.S. District and Prosecuting Attorneys § 10. The...