Karchefske v. Department of Mental Health

• Decision Date: 15 August 1985
• Docket Number: Docket No. 69058
• Citation: 143 Mich.App. 1,371 N.W.2d 876
• Parties: Margaret KARCHEFSKE, Personal Representative of the Estate of Stephen Karchefske, Deceased, and Margaret Karchefske, Mark Karchefske, Stanley Karchefske and Kimberly Karchefske, Individually, Plaintiffs-Appellants, v. DEPARTMENT OF MENTAL HEALTH, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 876

371 N.W.2d 876

143 Mich.App. 1

Margaret KARCHEFSKE, Personal Representative of the Estate of Stephen Karchefske, Deceased, and Margaret Karchefske Mark Karchefske, Stanley Karchefske and Kimberly Karchefske Individually, Plaintiffs-Appellants, v. DEPARTMENT OF MENTAL HEALTH, Defendant-Appellee.

Docket No. 69058.

Court of Appeals of Michigan.

Submitted March 13, 1984.

Decided May 20, 1985.

Released for Publication Aug. 15, 1985.

Swanson & Torgow, P.C. by Mikael G. Hahner and Gary H. Torgow, Detroit, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and George L. McCargar and Alan Hoffman, Asst. Attys. Gen., for defendant-appellee.

Before WAHLS, P.J., and BRONSON and KAUFMAN ^*, JJ.

WAHLS, Presiding Judge.

Plaintiffs allege in their complaint that on or about July 17, 1981, while receiving psychiatric treatment as an inpatient of the Northville Regional Psychiatric Hospital plaintiffs' decedent was physically restrained in a manner which strangled or choked him and caused the blood supply to his brain to be stopped, resulting in death. Plaintiffs further allege that the negligent and intentional acts or omissions of defendant were reasonably and substantially likely to result in the infliction of cruel and unusual punishment ¹ while depriving decedent of life without due process of law, ² contrary to the United States and Michigan constitutions. Defendant, State of Michigan, moved for summary judgment pursuant to GCR 1963, 117.2(1), on the ground that plaintiffs had not pled facts in avoidance of governmental immunity. The motion was granted and this appeal was taken by plaintiffs as of right.

Plaintiffs brought their federal constitutional claim pursuant to 42 U.S.C. Sec. 1983. Defendant argues that Sec. 1983 is inapplicable because the state is not a person within the meaning of that section. ³ Defendant assails this Court's decision in Smith v. Michigan, 122 Mich.App. 340, 348-352, 333 N.W.2d 50 (1983), lv. pending, which holds otherwise.

We agree with the reasoning of Smith, supra, that the state is a "person" for purposes of Sec. 1983 liability. However, because defendant has attacked at some length the validity of the Smith decision, we believe that further discussion of this matter is in order.

In Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the United States Supreme Court reconsidered whether a municipal corporation was a "person" under Sec. 1983. ⁴ Following examination of the debates on the Civil Rights Act of 1871, Sec. 1 of which is now 42 U.S.C. Sec. 1983, and application of appropriate rules of construction, the court concluded that Sec. 1 unequivocally was intended to cover legal as well as natural persons. Id., p. 683, 98 S.Ct. p. 2032. The court went on to state,

"Since there is nothing in the 'context' of Sec. 1 of the Civil Rights Act calling for a restricted interpretation of the word 'person,' the language of that section should prima facie be construed to include 'bodies politic' among the entities that could be sued." Id., pp. 689-690, fn. 53, 98 S.Ct. p. 2035, fn. 53.

We believe this analysis of the act is applicable also to the state as a "person" and, therefore, we must turn to considerations apart from the debates and the language of Sec. 1983 in order to decide the question before us.

Defendant asserts that the question of whether the state is a person under 42 U.S.C. Sec. 1983 has been resolved by the United States Supreme Court through a progression of cases culminating in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). This view of Quern arises out of Justice Brennan's concurring opinion, which states that the majority concluded, "in what is patently dicta, that a State is not a 'person' for purposes of 42 U.S.C. Sec. 1983". Id., p. 350, 99 S.Ct. p. 1150. We agree with this court's opinion in Smith, supra, that Justice Brennan's characterization of the majority opinion in Quern is in error.

Justice Brennan's analysis relies on the proposition that, "[i]f a State were a 'person' for purposes of Sec. 1983, therefore, its immunity under the Eleventh Amendment would be abrogated by the statute". ⁵ Quern, supra, pp. 350-351, 99 S.Ct. p. 1150. This proposition does not stand up when tested under the majority's standard for abrogation of Eleventh Amendment immunity. Id., pp. 343-345, 99 S.Ct. p. 1146-47. ⁶ First, assuming "any person" includes the state, must it be said that Sec. 1983 "explicitly and by clear language indicate(s) on its face an intent to sweep away the immunity of the States"? We believe not. Although we construe "person" broadly to include the state, we do not find the word particularly helpful in deciding what immunities and other defenses against liability may be raised by the person. That Congress intended some immunities to remain is abundantly clear from the Supreme Court case law. Thus, in Monell, supra, after expressly holding that municipal bodies are Sec. 1983 persons, the Supreme Court decided only that municipal bodies are not entitled to absolute immunity; the Court reserved the question whether some form of official immunity should be offered. ⁷ In other cases, the court has recognized the absolute or qualified immunity of legislators, judges, executive officers and police, among others. Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) (absolute immunity for justices acting in legislative capacity), Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) (qualified immunity for prison officials and officers), Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (qualified immunity for governor and other executive officers), Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (absolute immunity for judges, qualified immunity for police officers), and Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (absolute immunity for legislators). In these cases, the court found immunity with never a suggestion that the defendants were not Sec. 1983 persons. ⁸ Clearly, the explanation is that the recognized immunities are "affirmative defenses", as the court called them in Newport v. Fact Concerts, Inc., 453 U.S. 247, 258, 101 S.Ct 2748, 69 L.Ed.2d 616 (1981). We see no reason why the Eleventh Amendment immunity of the state may not also be characterized as such an affirmative defense.

If the state is a Sec. 1983 person and yet is entitled to immunity from suit in federal court, is Sec. 1983 rendered meaningless with respect to the states? In Monell, supra, 436 U.S. p. 701, 98 S.Ct. p. 2041, the Court stated "that municipal bodies sued under Sec. 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under Sec. 1983 'be drained of meaning,' " citing Scheuer v. Rhodes, supra, 416 U.S. p. 248, 94 S.Ct. p. 1692. ⁹ In Scheuer, the court expressed the concern that the supremacy of federal law could be overridden if state officials had absolute immunity from suit in federal court. However, with respect to the state, this federalism concern is negated by the fact that the state's immunity arises from the United States Constitution itself. In Quern, supra, 440 U.S. p. 345, 99 S.Ct. p. 1147, the court found that the availability of prospective relief against a state official, in accordance with Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), was sufficient to keep Sec. 1983 from being rendered "meaningless insofar as States are concerned". We thus conclude that the existence of Eleventh Amendment immunity does not, either by force of logic or by precedent, require that the word "person" in Sec. 1983 be construed to exclude the state.

Not only are we persuaded that Quern does not hold that a state is not a Sec. 1983 "person", but we find within the Quern opinion some evidence that the state in fact is such a person. At Quern, supra, 440 U.S. p. 340, 99 S.Ct. p. 1144, the Court quoted approvingly from Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), which involved a Sec. 1983 action for injunctive relief:

"There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit."

However, if the state is not a "person" under Sec. 1983, suit would be barred even where there is consent constituting waiver of immunity, because Sec. 1983 would be inapplicable to the states. ¹⁰ Similarly, at Quern, supra, 440 U.S. p. 345, 99 S.Ct. p. 1147, the court states that its holding does not "render Sec. 1983 meaningless insofar as states are concerned". However, concern that Sec. 1983 not be meaningless as to the states only arises if Sec. 1983 applies to the states in the first instance, i.e., if states are "persons". See Gay Student Services v. Texas A & M University, 612 F.2d 160, 163, fn. 3 (CA 5, 1980), cert. den. 449 U.S. 1034, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980), and Harris v. Arizona Bd. of Regents, 528 F.Supp. 987, 992 (D.Ariz.,1981).

Thus far, we are persuaded that the state is a Sec. 1983 person and that the question of immunity requires separate analysis. Plaintiffs are correct in their assertion that immunity in state court from Sec. 1983 damages liability is a question of federal law and cannot be determined on the basis of the governmental immunity act, M.C.L. Sec. 691.1401 et seq., M.S.A. Sec. 3.996(101) et seq. Martinez v. California, 444 U.S. 277, 284, fn. 8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), and Cook v. City of Detroit, 125 Mich.App. 724, 730, 337 N.W.2d 277 (1983). The United States Supreme Court has construed Sec. 1983 to incorporate a particular immunity defense only after careful inquiry into considerations of both history and policy. Newport v. Fact Concerts, Inc., supra, 453...