Chonich v. Ford

• Decision Date: 21 July 1982
• Docket Number: Docket No. 57033
• Citation: 115 Mich.App. 461,321 N.W.2d 693
• Parties: , 33 A.L.R.4th 624 Dr. Milan M. CHONICH, Mr. Steven Racine, and Mr. Carmen Pascaretti, Plaintiffs-Appellants, v. Juanita FORD, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 693

321 N.W.2d 693

115 Mich.App. 461, 33 A.L.R.4th 624

Dr. Milan M. CHONICH, Mr. Steven Racine, and Mr. Carmen Pascaretti, Plaintiffs-Appellants, v. Juanita FORD, Defendant-Appellee.

Docket No. 57033.

Court of Appeals of Michigan.

Submitted Feb. 16, 1982.

Decided April 22, 1982.

Rehearing Denied June 15, 1982.

Released for Publication July 21, 1982.

Van Til, Kasiborski & Ronayne by John J. Ronayne and Sharla A. Schipper, Detroit, for plaintiffs-appellants.

Joselyn, Rowe, Jamieson, Grinnan, Callahan & Hayes by Ellen C. Glovinsky, Detroit, for defendant-appellee.

Before MacKENZIE, P. J. and BRONSON, and THOMAS, ^* JJ.

BRONSON, Judge.

Plaintiffs commenced this defamation action on September 17, 1980, in the Wayne County Circuit Court. On March 6, 1981, the circuit court granted defendant's motion for summary judgment on the basis that there existed no genuine issue as to any material fact and holding that defendant's statements were entitled to an absolute privilege. GCR 1963, 117.2(3). ¹ From this order, plaintiffs appeal as of right.

According to plaintiffs' original complaint, defendant read from a written statement at an August 27, 1980, meeting of the Wayne County Community College Board of Trustees, asserting that Dr. Mostafa Afr and three of his subordinates, the plaintiffs, ² ] had all received large home mortgages from American Federal Savings on the same day that Afr transferred $7,000,000 of college funds from First Federal Savings to American Federal Savings. Plaintiffs asserted that these statements were false and defamatory and spoken by defendant with reckless disregard for the truth.

Plaintiffs first assert that the motion for summary judgment was improperly granted because defendant actually brought it pursuant to GCR 1963, 117.2(1), failure to state a claim upon which relief can be granted, and not pursuant to GCR 1963, 117.2(3), no genuine issue as to any material fact, the basis upon which the court granted the motion. We disagree.

When summary judgment is sought on the basis of an absolute privilege, some panels of this Court have held that GCR 1963, 117.2(1) is the proper basis upon which to bring such a motion. Pagoto v. Hancock, 41 Mich.App. 622, 200 N.W.2d 777 (1972), Gilbert v. Grand Trunk W. R., 95 Mich.App. 308, 314-315, 290 N.W.2d 426 (1980), lv. den. 410 Mich. 854 (1980). In actuality, however, whether such a motion should be brought pursuant to GCR 1963, 117.2(1) or GCR 1963, 117.2(3) depends on the thoroughness of the pleadings. See Brunn v. Weiss, 32 Mich.App. 428, 429-430, 188 N.W.2d 904 (1971). The question in each case is whether the pleadings, themselves, are sufficient to set forth a cause of action or whether the court must look beyond the pleadings in considering the motion to determine if there exists factual support for plaintiff's allegations. See, Todd v. Biglow, 51 Mich.App. 346, 349-350, 214 N.W.2d 733 (1974), lv. den. 391 Mich. 816 (1974). In the instant matter, after examination of plaintiffs' original complaint, it is our opinion that defendant did, in fact, bring her motion for summary judgment on the correct basis, and, as will be detailed below, the motion should have been granted for failure to state a claim upon which relief can be granted. Assuming, arguendo, that the trial court needed to consider facts not set forth in the pleadings to reach its determination, any such facts were not in dispute and were fully brought to the court's attention at the March 6, 1981, hearing on the motion. In any case, as we held in Todd, supra, when a motion for summary judgment is brought under GCR 1963, 117.2(1) but really tests the sufficiency of the factual support for the claim, the motion should be treated as one based on GCR 1963, 117.2(3) so long as neither party has been misled. See, also, Walker v. Cahalan, 97 Mich.App. 346, 355, 296 N.W.2d 18 (1980), REV'D ON OTHER GROUNDS 411 mich. 857, 306 n.w.2d 99 (1981). IN THis case, it is clear that, whatever the formally pled grounds for defendant's motion, it was based on an assertion of absolute privilege, and plaintiffs were not misled or surprised by the lower court's substantive foundation for its order granting summary judgment.

Plaintiffs also assert that, in any case, defendant's remarks were not absolutely privileged. We disagree, finding that this presents one of the rare situations in which Michigan law recognizes an absolute privilege.

In Raymond v. Croll, 233 Mich. 268, 272, 206 N.W. 556 (1925), the Michigan Supreme Court quoted with approval from Newell, Slander and Libel (4th ed.), Sec. 351, stating:

" 'Cases of absolute privilege are not numerous, and the courts refuse to extend their number. They are divided into three classes. (1) Proceedings of legislative bodies; (2) Judicial proceedings; and (3) Communications by military and naval officers.' "

See, also, Timmis v. Bennett, 352 Mich. 355, 361, 89 N.W.2d 748 (1958).

We are here concerned with the absolute privilege for statements made during the course of legislative proceedings. This privilege has been held to extend to subordinate and quasi-legislative bodies. See, Gidday v. Wakefield, 90 Mich.App. 752, 755-756, 282 N.W.2d 466 (1979), lv. den. 407 Mich. 893 (1979), and the cases cited therein.

Plaintiffs, citing the following excerpt from Gidday, argue that defendant here is not entitled to an absolute privilege:

"The finding that the proceeding lends itself to application of the doctrine of absolute privilege does not, however, end our inquiry. The fact that a public official is a member of a legislative body and is in attendance at a duly convened proceeding of such body does not afford him an invitation to undertake an unrestricted slanderous campaign against whomever he pleases, concerning whatever he pleases. In addition to being spoken during a legislative or quasi-legislative session, the statements at issue must be made by the public official while in the process of carrying out an official duty." Id., 90 Mich.App. at 756, 282 N.W.2d 466.

Plaintiffs assert that the making of the statements in issue was "not an essential function of the defendant's position", that defendant's allegations "were not a proper subject for consideration by the board of trustees", and that "defendant was not acting in a * * * quasi-legislative capacity". Each of these claims will be considered in turn.

Plaintiffs' argument that defendant's conduct did not constitute an essential function of her official duty is premised primarily on the basis that her statements were not made during a debate on an agenda item nor in response to the comments of another person. We have no problem in concluding that the administration of the school's financial matters is, indeed, entrusted to the Wayne County Community Board of Trustees as an official duty or function. See, M.C.L. Sec. 389.121; M.S.A. Sec. 15.615(1121) through M.C.L. Sec. 389.144; M.S.A. Sec. 15.615(1144). Indeed, M.C.L. Sec. 389.142; M.S.A. Sec. 15.615(1142) specifically deals with the authority and duties of the community college boards of trustees to invest and deposit school funds. As such, any discussion of possible misuse of college funds is related to the school's development, maintenance, operation and security and must be deemed part of defendant's officially sanctioned functions.

Plaintiffs also assert that discussion of the possible misuse of college funds was not an essential part of defendant's duties because an agreement between the board of trustees and various administrators, including plaintiffs, provides for private disciplinary hearings. We agree with defendant, however, that the alleged misuse of millions of dollars of college funds is more than a mere private employment problem but, rather, an important public topic going to the very financial integrity of the school.

In any case, the existence of alternative dispute resolution mechanisms does not necessarily defeat an absolute privilege. For instance, in Stewart v. Troutt, 73 Mich.App. 378, 251 N.W.2d 594 (1977), the defendant mayor of Romulus asserted at a city council meeting that the plaintiff councilman had failed to pay property taxes on certain property. Plaintiff argued that the mayor was not engaged in an official duty at the time of the allegation because he had failed to timely direct the matter to the proper authorities, the tax commission, which could assess property tax deficiencies. This Court held that, even if the plaintiff's allegations were true, this would not take the mayor's statements outside the scope of his official duties. Id., 384, 251 N.W.2d 594. We believe this same rationale is applicable in this case.

Plaintiffs assert that the allegations were not a proper subject for consideration at a board meeting because the Open Meetings Act, specifically Sec. 8 of the act, being M.C.L. Sec. 15.268(a); M.S.A. Sec. 4.1800(18)(a), allows a public body to meet in closed session to consider the dismissal, suspension, or disciplining of its employees. We first note that Sec. 8 of the Open Meetings Act merely permits the public body to meet in a closed session, it does not require a closed meeting. As such, the fact that defendant made her...