Kriger v. South Oakland County Mut. Aid Pact

• Decision Date: 28 August 1973
• Docket Number: Docket No. 14291,No. 2,2
• Citation: 211 N.W.2d 228,49 Mich.App. 7
• Parties: Mark KRIGER by Margaret Kriger, next friend, Plaintiff-Appellant, v. SOUTH OAKLAND COUNTY MUTUAL AID PACT et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 228

211 N.W.2d 228

49 Mich.App. 7

Mark KRIGER by Margaret Kriger, next friend, Plaintiff-Appellant, v. SOUTH OAKLAND COUNTY MUTUAL AID PACT et al., Defendants-Appellees.

Docket No. 14291.

Court of Appeals of Michigan, Division No. 2.

Aug. 28, 1973.

Released for Publication Oct. 24, 1973.

Jonathan I. Rose, by Joseph L. Stewart, Ann Arbor, for plaintiff-appellant.

Patterson & Patterson, Whitfield, Manikoff & White, by Gerald G. White, Pontiac, for defendants-appellees.

Before: QUINN, P.J., and J. H. GILLIS and BASHARA, JJ.

J. H. GILLIS, Judge.

Plaintiff appeals the grant of a summary judgment motion in favor of defendant City of Berkley. For purposes of review all factual allegations of the complaint are considered as true.

On August 25, 1970, a disturbance took place at Memorial Park in Royal Oak, Michigan. Police were ordered to the scene to restore order. Plaintiff, a 17-year-old amateur photographer, had been observing the altercation from a vantage point across the street. Suddenly and without provocation, 3 police officers assaulted and beat him, causing severe and lasting injuries. The assailants were not attempting to arrest plaintiff. The incident was recorded by newspaper photographers and TV cameramen and later published and broadcast. The officers involved could not be identified.

Plaintiff sued the South Oakland County Mutual Aid Pact, the 18 members cities of the Pact, and 3 unidentified police officers. His complaint sounded in tort for assault and battery, libel and slander, and the negligence of the Mutual Aid Pact and the 18 defendant cities in training police officers. Plaintiff sought compensatory damages and injunctive relief.

Defendant City of Berkley moved for summary judgment, contending M.C.L.A. § 691.1407; M.S.A. § 3.996(107), shields it from liability. Plaintiff appeals, asserting that the statute denies him equal protection of the law. He argues that the statute arbitrarily and unreasonably discriminates by denying relief to victims of public tort-feasors while according relief to victims of private tort-feasors for the same tort. Briefly, he argues that predicating a right to relief on public vis-a -vis private identity of the tort-feasor strains logic. He asserts further that equal protection is denied by according relief to certain victims of public tort-feasors while denying it to others because the Legislature employed no rational scheme to create exceptions.

Courts in other jurisdictions have summarily dismissed similar equal protection claims. Cf. Hall v. Powers, 6 Pa.Cmwlth. 544, 296 A.2d 535 (1972); Sullivan v. Midlothian Park District, 51 Ill.2d 274, 281 N.E.2d 659 (1972); Lewis v. City and County of San Francisco, 21 Cal.App.3d 339, 98 Cal.Rptr. 407 (1971); Flournoy v. State, 230 Cal.App. 520, 41 Cal.Rptr. 190 (1964); Hayes v. State, 231 Cal.App. 48, 41 Cal.Rptr. 502 (1964).

Plaintiff relies on Krause v. State, 28 Ohio App.2d 1, 274 N.E.2d 321 (1971), and cases cited therein. That intermediate appellate court found the Ohio governmental immunity scheme so riddled with exceptions that it created serious inequalities in its operation. Plaintiff's reliance is misplaced. In addition to a questionable construction ¹ and application of the traditional equal protection tests, ² the decision was finally reversed by the Ohio Supreme Court. Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736 (1972), appeal dismissed 409 U.S. 1052, 93 S.Ct. 557, 34 L.Ed.2d 506 (1972).

The 'rational basis' test applies when the law allegedly infringing equal protection creates no fundamental rights. The right claimed by plaintiff clearly falls within that class. If a reasonable relation exists between the classification and some legitimate state interest, no denial of equal protection results. Wilkins v. Ann Arbor City Clerk, 385 Mich. 670, 189 N.W.2d 423 (1971), citing Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 74 A.L.R. 1189 (1931). Withholding legal remedy from persons injured by the state, while granting one to persons injured by nongovernmental tortfeasors does not offend the equal protection clause:

'The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.' Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940).

'(T)he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways.' Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225, 229 (1971), cited in Krause v. State, Supra, 31 Ohio.St.2d 146, 285 N.E.2d 744.

Neither of plaintiff's alleged invidious classifications is sufficient. To deny the state its defense on plaintiff's reasoning is to 'preclude the combined legislative judgment that there may be substantive differences between the two types of conduct'. Krause v. State, Supra, 31 Ohio.St.2d 146, 285 N.E.2d 745. States have the power to enact laws which affect some groups of citizens differently from others if the classification is reasonable:

'Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

One who assails a classification on the grounds that it violates equal protection of law has the burden of showing that the classification has no reasonable basis. Wilkins v. Ann Arbor City Clerk, Supra. Plaintiff failed to sustain his heavy burden of proof. We think Wood v. Jackson County, 463 S.W.2d 834, 835 (Mo.1971), aptly stated the rule:

"It is a general rule that equal protection of the laws is not denied by a course of procedure which is applied to legal proceedings in which a particular person is affected, if such a course would also be applied to any other person in the state under similar circumstances and conditions. Equal protection of the laws of a state is extended to persons within its jurisdiction, within the meaning of the Fourteenth Amendment to the Federal Constitution, when its courts are open to them on the same condition as to others in like circumstances, with like rules to evidence and modes of procedure, for the security of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts.' 16 Am.Jur.2d, Constitutional Law, § 533, p 923.'

Plaintiff next asserts that P.A.1970, No. 155 violates Const.1963, art. 4, § 24, which requires the title of a statute to accurately express the object of the law. Maki v. East Tawas, 385 Mich. 151, 188 N.W.2d 593 (1971), voided P.A.1964, No. 170, § 7, because the title to the act did not indicate the broader and more inclusive immunity expressed in § 7, in contravention of the title-object rule. P.A.1970, No. 155, is entitled:

'AN ACT to amend the title and sections 4, 6 and 7 of Act No. 170 of the Public Acts of 1964, entitled 'An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in a governmental function, for injuries to property and persons caused by negligence; to define and limit such liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of such liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; and to repeal certain acts and parts of acts,' being sections 691.1404, 691.1406 and 691.1407 of the Compiled Laws of 1948.'

The amendment sought to remedy the deficiency set forth in Maki v. East Tawas, Supra, by broadening the title to include all 'injuries to property and persons'. Plaintiff argues merely to state 'an act to amend the title * * *' does not suffice because the title's only indication of the substance of the amendatory act is the prior act's title which the Supreme Court labeled misleading and incapable of giving fair notice. Maki v. East Tawas, Supra. He cites precedent for the proposition that:

'* * * the title to an amendatory act is sufficient, and will support any legislation that would have been permissible under the original title when the law was enacted, if the amendatory act refers by chapter or section to the act amended.' Fort Street Union Depot Co. v. Commissioner of Railroads, 118 Mich. 340, 76 N.W. 497 (1898); see also People v. Howard, 73 Mich. 10, 40 N.W. 789 (1888); Common Council of Detroit v. Schmid, 128 Mich. 379, 87 N.W. 383; 92 Am.St.Rep. 468 (1901); Maclean v. State Board of Control for Vocational Education, 294 Mich. 45, 292 N.W. 662 (1940).

We note at the outset that our...