Gracey v. Wayne County Clerk, Docket No. 162799

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM; MARILYN J. KELLY
• Citation: 213 Mich.App. 412,540 N.W.2d 710
• Parties: Paul C. GRACEY and Irene E. Gracey, Plaintiffs-Appellants, v. WAYNE COUNTY CLERK, Wayne County Board of Canvassers, Elections Director for Wayne County, Wayne County Prosecutor, and County of Wayne, Defendants-Appellees, and City of Grosse Pointe Farms and Grosse Pointe Farms City Clerk, Defendants.
• Docket Number: Docket No. 162799
• Decision Date: 15 September 1995

Page 710

540 N.W.2d 710 213 Mich.App. 412 Paul C. GRACEY and Irene E. Gracey, Plaintiffs-Appellants,
v.
WAYNE COUNTY CLERK, Wayne County Board of Canvassers,
Elections Director for Wayne County, Wayne County
Prosecutor, and County of Wayne,
Defendants-Appellees,
and
City of Grosse Pointe Farms and Grosse Pointe Farms City
Clerk, Defendants. Docket No. 162799. Court of Appeals of Michigan. Submitted Jan. 12, 1995, at Detroit.
Decided Sept. 15, 1995, at 9:10 a.m.
Released for Publication Dec. 18, 1995.

Page 711

[213 Mich.App. 414] Lawrence A. Friedman, Southfield, for plaintiff.

Jennifer M. Granholm, Corporation Counsel, and James W. Quigly, Assistant Corporation Counsel, Detroit, for defendants.

Before CONNOR, P.J., and WAHLS and MARILYN J. KELLY, JJ.

Page 712

PER CURIAM.

Plaintiffs appeal as of right the trial court's grant of summary disposition for defendants on the basis of governmental immunity in this action for invasion of privacy, malicious prosecution, and intentional infliction of emotional distress. We affirm in part and reverse in part.

Plaintiff Paul Gracey was a candidate in the August 1989 election for the office of municipal judge in the City of Grosse Pointe Farms. His wife, plaintiff Irene Gracey, hand-delivered a number of absentee ballots to the city clerk's office although she was not a member of the immediate family of [213 Mich.App. 415] these voters. There were no allegations that plaintiffs engaged in fraud with respect to these absentee ballots.

The day before the primary election, the Michigan State Police were contacted about plaintiffs' conduct. James Killeen, the Wayne County Clerk, called a press conference at which he alleged improprieties on the part of plaintiffs. Plaintiffs alleged that Killeen, the Wayne County Board of Canvassers, and Edward Carey, the Elections Director for Wayne County, knowingly gave false information at the press conference concerning plaintiff Irene Gracey's involvement in the election process. Plaintiffs also alleged that these defendants knowingly gave false information to the police. Plaintiffs alleged that defendant John D. O'Hair, the Wayne County Prosecutor, continued to prosecute plaintiff Irene Gracey after this Court had found that she had not tampered with any absentee ballots. Finally, plaintiffs alleged that Wayne County was vicariously liable.

Plaintiffs argue that actions of a county clerk that might normally be considered within the scope of authority of the clerk become acts outside that scope when performed for an ulterior purpose. We agree. A motion for summary disposition pursuant to MCR 2.116(C)(7) should not be granted unless no factual development could provide a basis for recovery. Harrison v. Director of Dep't. of Corrections, 194 Mich.App. 446, 449, 487 N.W.2d 799 (1992). In order to determine whether plaintiffs' alleged facts justify a finding that recovery in tort is not barred by governmental immunity, a court must consider all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted by the parties. Id.

Plaintiffs claimed that Killeen was a neighbor and financial contributor to one of plaintiffs' opponents,[213 Mich.App. 416] Eugene Casazza. Casazza allegedly informed Killeen that plaintiff Irene Gracey had violated election laws with regard to absentee ballots. Plaintiffs claimed that Killeen did nothing until the eve of the primary election and then called a press conference to announce that there was an illegal handling of ballots by Irene Gracey, thus tainting the election. It is plaintiffs' claim that the allegations made by Killeen were false and that the press conference was called for the sole purpose of swaying the electorate by dissuading voters from supporting Paul Gracey. Gracey was defeated in the election.

The trial court recognized that Killeen "may very well have had ulterior motives and probably did, but the fact that he had ulterior motives does not take away his function as county clerk and him performing his task as county clerk."

We believe that the Supreme Court in Marrocco v. Randlett, 431 Mich. 700, 713, 433 N.W.2d 68 (1988), reintroduced concepts that define governmental function by reference to an actor's intent. Consequently, if defendant intentionally conducted a press conference to cause some mischief not authorized by law, then his otherwise appropriate action is not the exercise of a governmental function and is outside the scope of his immunity. In Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 592, 363 N.W.2d 641 (1984), the Supreme Court stated:

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 respective judicial, legislative, and executive authority.

The county clerk qualifies as one of the highest [213 Mich.App. 417] executive officials in county government. Thus, county clerks are absolutely immune if they are acting within their executive authority. However, no case attempted

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to define "within their executive authority" until Marrocco, supra, 431 Mich. at p. 707, 433 N.W.2d 68. Marrocco analogizes the determination of "executive authority" to the determination of a "governmental function" utilized when reviewing the acts of lower level officials. Id., at p. 708, 433 N.W.2d 68. The Marrocco majority...