Kelley v. City of East Lansing

• Decision Date: 02 November 1973
• Docket Number: No. 2,Docket No. 16136,2
• Citation: 213 N.W.2d 557,50 Mich.App. 511
• Parties: Rand C. KELLEY, Plaintiff-Appellee, v. The CITY OF EAST LANSING, Defendant, and The County of Jackson, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 557

213 N.W.2d 557

50 Mich.App. 511

Rand C. KELLEY, Plaintiff-Appellee, v. The CITY OF EAST LANSING, Defendant and The County of Jackson, Defendant-Appellant.

Docket No. 16136.

Court of Appeals of Michigan, Division No. 2.

Nov. 2, 1973.

Released for Publication Jan. 15, 1974.

Philip M. Moilanen, Rosenburg, Painter, Stanton, Bullen & Nelson, Jackson, for Jackson County.

Daniel C. Learned, East Lansing, for City of East Lansing.

William E. Rheaume, Abood, Abood & Abood, P.C., Lansing, for plaintiff-appellee.

Before McGREGOR, P.J., and BRONSON and CARLAND,* JJ.

BRONSON, Judge.

On March 28, 1973, we granted defendant County of Jackson's application for leave to appeal. The central question is:

Whether the County of Jackson enjoys immunity from suit for false arrest and false imprisonment by virtue of the governmental immunity statute, M.C.L.A. § 691.1407; M.S.A. § 3.996 (107)?

The controversy arose upon the complaint of plaintiff, Rand C. Kelley. Kelley brought suit in Jackson Circuit Court charging defendants, City of East Lansing and County of Jackson, with false arrest and false imprisonment. Plaintiff alleges that he was arrested in East Lansing, transported to Jackson County and incarcerated overnight illegally. The complainant avers that he was released the following morning and told that there had been a mistake. Apparently the arrest warant was based on a traffic ticket actually paid but not reflected as paid in the Jackson County records.

The County of Jackson moved for summary judgment pursuant to GCR 1963, 117. The trial judge denied this motion on the assumption that M.C.L.A. § 691.1407; M.S.A. § 3.996(107) was unconstitutional subsequent to our decision in Maki v. East Tawas, 18 Mich.App. 109, 170 N.W.2d 530 (1969), aff'd, 385 Mich. 151, 188 N.W.2d 593 (1971). However, the circuit court failed to consider that 1970 P.A. 155, effective August 1, 1970, cured the constitutional infirmity found in Maki, supra. See: McCann v. Michigan, 47 Mich.App. 326, 209 N.W.2d 456 (1973). The incident presently alleged occurred subsequent to the effective date of P.A. 155. Thus, absent a statutory or judicial exception to the broad immunity legislatively declared by M.C.L.A. § 691.1407, Supra, the County of Jackson is immune from suit.

Plaintiff raises two additional theories which he asserts are controlling. One of these falls within the scope of the statute and requires no further discussion. The remaining theory begins with a consideration of Buckeye Insurance Co. v. Michigan, 383 Mich. 630, 640--644, 178 N.W.2d 476, 482--484 (1970). The Buckeye case recognizes an exception from the sovereign immunity statute for a nuisance which contravenes the constitutional prohibition against the taking of property without just compensation. The Supreme Court in Buckeye said:

'The statement of the Attorney General (that sovereign immunity is a creature of the Legislature) is subject, however, to applicable and overriding provisions of the State Constitution. To that extent, the Legislature does not have an unlimited discretion in shaping the pattern of the state's immunity from liability.' (Buckeye, supra, at 641, 178 N.W.2d at 482).

From this principle Kelley next argues that Const.1963, art. 1, § 11, guarantees an individual freedom from illegal arrest and false imprisonment. Further, Kelley asserts that this constitutional right is no less important than the constitutional right involved in Buckeye. He concludes that he has a constitutional right without a correlative remedy. The counter argument is based on...