Harrison v. Director of Dept. of Corrections, Docket Nos. 126819

CourtCourt of Appeal of Michigan (US)
Writing for the CourtSHEPHERD
Citation487 N.W.2d 799,194 Mich.App. 446
Decision Date01 June 1992
Docket NumberDocket Nos. 126819,126820

Page 799

487 N.W.2d 799
194 Mich.App. 446

Docket Nos. 126819, 126820.
Court of Appeals of Michigan.
Submitted March 11, 1992, at Lansing.
Decided June 1, 1992, at 9:15 a.m.
Released for Publication Aug. 28, 1992.

Page 801

[194 Mich.App. 448] Hooper, Hathaway, Price, Beuche & Wallace by Mark R. Daane and Robert W. Southard, Ann Arbor, for plaintiffs.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Stuart H. Freeman and Michael C. McDaniel, Asst. Attys. Gen., for defendants.


SHEPHERD, Presiding Judge.

In these consolidated cases, plaintiffs appeal as of right from the March 1, 1990, circuit court order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(7), claim barred because of immunity granted by law, and MCR 2.116(C)(8), failure to state a claim. We affirm and hold that defendant--either state agencies, officials of the Department of Corrections, or members of the parole board--may not be held liable for violent murders committed by a prisoner released on parole before being eligible for parole consideration. We conclude that for such liability to exist, it would have to be authorized by the Legislature.

In the early morning hours of July 19, 1985, Paul Ray Byars, while on parole, broke into the home of Dale and Debra Dolinger in Ypsilanti, Michigan. Upon entering, Byars brutally murdered two thirteen-year-old boys, Jerry Bruce Harrison and Steven D. Harrison, attempted to murder Dale Dolinger, and placed Debra, Jennifer, and Lisa Dolinger in fear for their lives. Byars had been paroled in August 1984 after serving approximately[194 Mich.App. 449] ten years of a twenty- to thirty-five-year sentence imposed in 1974 for rape.

Plaintiffs filed the present actions against the various defendants, alleging that they intentionally and negligently violated the law in paroling Byars five or six years before he was eligible. Plaintiffs contend that defendants' actions constituted the proximate cause of the murders committed by Byars. Plaintiffs further claim that defendants were engaged in ultra vires activities and thus were not performing governmental functions. Robert Brown is a former director of the Michigan Department of Corrections (MDOC); Perry Johnson was also a director of the MDOC, as well as a director of the Bureau of Field Services; Thomas Koehler was the warden of the Marquette Branch Prison, where Byars was imprisoned; Howard Grossman, Bill Hudson, and Richard Walbrecq were members of the parole board responsible for the release of Byars.

In reviewing a motion brought pursuant to MCR 2.116(C)(7), a court must consider all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted by the parties. MCR 2.116(G)(5); Wade v. Dep't of Corrections, 439 Mich. 158, 162-163, 483 N.W.2d 26 (1992); Chivas v. Koehler, 182 Mich.App. 467, 471, 453 N.W.2d 264 (1990). The plaintiff's complaint is reviewed to determine

Page 802

whether facts have been pleaded justifying a finding that recovery in tort is not barred by governmental immunity. Pawlak v. Redox Corp., 182 Mich.App. 758, 763, 453 N.W.2d 304 (1990). 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. Markis v. Grosse Pointe Park, 180 Mich.App. 545, 551, 448 N.W.2d 352 (1989).

A motion under MCR 2.116(C)(8), for failure to [194 Mich.App. 450] state a claim upon which relief can be granted, tests the legal sufficiency of a claim by the pleadings alone. MCR 2.116(G)(5); Wade, supra. The court must accept as true all well-pleaded factual allegations, as well as any reasonable inferences or conclusions that can be drawn from them. Hutchinson v. Allegan Co. (On Remand), 192 Mich.App. 472, 475, 481 N.W.2d 807 (1992). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Wade, supra.

Pursuant to M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), defendant state agencies are immune from tort liability if they are "engaged in the exercise or discharge of a governmental function" at the time the tort occurs. In Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 633, 363 N.W.2d 641 (1984), the Court stated that a governmental function is an "activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law." Id., p. 591, 363 N.W.2d 641. In this case, the Department of Corrections, the Bureau of Pardons and Paroles, and the Bureau of Field Services were authorized to release prisoners pursuant to M.C.L. Sec. 791.201 et seq.; M.S.A. Sec. 28.2271 et seq. and hence were engaged in the exercise or discharge of a governmental function. Because there is no intentional tort exception to governmental immunity, Smith v. Dep't of Public Health, 428 Mich. 540, 593, 410 N.W.2d 749 (1987), aff'd sub nom Will v. Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), defendant state agencies were immune from liability even if the release of Byars may have resulted in an intentional tort. Thus, the trial court properly granted defendant state agencies summary disposition pursuant to MCR [194 Mich.App. 451] 2.116(C)(7) on the ground of governmental immunity.

Before 1986, the law of governmental immunity, as it related to individual officers, employees, and agents, was "a creature of judicial decision-making." Ross, supra, 420 Mich. at p. 629, 363 N.W.2d 641. Although standards of individual governmental immunity are now provided under M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), as amended by 1986 P.A. 175, the statute does not apply to causes of action "arising" before July 1, 1986. 1986 P.A. 175, Sec. 3. The amended statute grants immunity to individual defendants except for acts of gross negligence.

A cause of action "arises" when the plaintiff's claim accrues, not when it is filed. Abraham v. Jackson, 189 Mich.App. 367, 370, 473 N.W.2d 699 (1991). Because the cause of action accrued on July 19, 1985, the date on which Byars committed the murders, the amended statute is inapplicable. Thus, the issue is considered under the rules articulated in Ross, where the Court distinguished two categories of individual governmental immunity.

Under the first test set forth in Ross, 420 Mich. at p. 633, 363 N.W.2d 641, "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." Highest executive officials may qualify for absolute immunity because they have broad-based jurisdiction or extensive authority similar to that of a judge or legislator. Chivas, supra, 182 Mich.App. at p. 471, 453 N.W.2d 264.

In addition, Ross, supra, 420 Mich. at pp. 633-634, 363 N.W.2d 641, states:

Page 803

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;

[194 Mich.App. 452] 2) acting in good faith; and

3) performing discretionary, as opposed to ministerial acts.

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

Discretionary acts involve personal deliberation, decision, and judgment. Id., pp. 634, 635, 363 N.W.2d 641. Ministerial acts involve the execution of a decision entailing minor decision making where the individual has little or no choice. In determining whether acts are discretionary or ministerial, the focus is on the specific acts complained of, rather than the general nature of the activity. Canon v. Thumudo, 430 Mich. 326, 334, 422 N.W.2d 688 (1988).

In this case, Robert Brown and Perry Johnson, former directors of the MDOC, occupied that department's highest executive position. Because these defendants were acting within their broad-based executive authority, they were entitled to absolute immunity under Ross. Chivas, supra, 182 Mich.App. at p. 471, 453 N.W.2d 264. Therefore, the trial court properly granted defendants Brown and Johnson summary disposition pursuant to MCR 2.116(C)(7) based upon governmental immunity. 1

The remaining individual defendants do not qualify as "highest executive officials." As the former warden of the Marquette Branch Prison, [194 Mich.App. 453] defendant Thomas Koehler qualified as a "lower level official" under Ross. Marley v. Huron Valley Men's Facility Warden, 165...

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