Lapeer County, Mich. v. Montgomery County, Ohio, 96-1093
| Citation | 108 F.3d 74 |
| Decision Date | 09 May 1997 |
| Docket Number | No. 96-1093,96-1093 |
| Parties | LAPEER COUNTY, MICHIGAN, a municipal corporation, Plaintiff-Appellee, v. MONTGOMERY COUNTY, OHIO, a municipal corporation; Montgomery County Sheriff's Department, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Marcia L. Howe (argued), Daniel P. Dalton (briefed), Johnson, Rosati, Galica, Shifman, LaBarge, Aseltyne, Sugameli & Field, Christopher J. Johnson (briefed), Farmington Hills, MI, for Plaintiff-Appellee.
Elissa D. Cohen (argued and briefed), Office of the Prosecuting Attorney for the County of Montgomery, Dayton, OH, for Defendants-Appellants.
Before: MERRITT, KENNEDY, and GUY, Circuit Judges.
GUY, J., delivered the opinion of the court, in which KENNEDY, J., joined. MERRITT, J. (pp. 79-80), delivered a separate dissenting opinion.
In this suit to recover extradition expenses, defendants Montgomery County, Ohio, and Montgomery County, Ohio, Sheriff's Department (hereinafter referred to collectively as defendant or Montgomery County), appeal from a summary judgment entered in favor of the plaintiff, Lapeer County, Michigan. Our review of the record convinces us that summary judgment was properly granted and we affirm.
On September 18, 1992, the Montgomery County Sheriff's Department issued an all-points-bulletin for Michael David Hild. The bulletin indicated that Hild had an extensive criminal history, was presumed to be armed and dangerous, and was wanted in connection with a number of burglaries that had occurred in Montgomery County. It also indicated Hild was wanted in Florida and Kentucky for similar offenses and advised officers to use caution in arresting him.
Hild's former wife, Carol Hild, lived in Lapeer County, Michigan. On November 10, 1992, at approximately 10:30 p.m., Carol Hild called the Lapeer County Sheriff's Department to inform them that Hild was hiding in her apartment. The department ran a check on Hild and found he was wanted in Montgomery County, Ohio.
The Lapeer County Sheriff's Department then contacted the Michigan State Police for assistance in apprehending Hild. The law enforcement agencies met at the department to coordinate a strategy. They then proceeded to Carol Hild's apartment.
When the officers arrived, they spotted Hild outside the apartment. Hild tried to flee from the officers, and during pursuit he was shot in the leg. Hild was arrested and taken to the hospital for treatment. His leg was eventually amputated.
Following Hild's apprehension, the Lapeer County Sheriff's Department contacted the Montgomery County Sheriff's Department to confirm the warrants. After verifying Hild's identity based on tattoos, the Montgomery County Sheriff's Department requested Lapeer County to detain Hild for "pickup."
On November 23, 1992, Hild was arraigned in Lapeer County on the information from Montgomery County. Two days later he waived extradition and was transported by ambulance to the Ohio border where he was picked up by the Montgomery County Sheriff's Department.
Lapeer County subsequently contacted Montgomery County regarding expenses incurred in apprehending Hild. Montgomery County did not reply.
Lapeer County then brought this action against Montgomery County and the State of Ohio, alleging that defendant's failure to reimburse Lapeer County violated the Federal Extradition Act, see 18 U.S.C. § 3195, and the Uniform Criminal Extradition Act, see Ohio Rev.Code Ann. § 2963.01-.35 (Anderson 1996).
The State of Ohio filed a motion to dismiss, and Lapeer County filed a motion for summary judgment. Following a hearing on these motions, when it was learned no governor's warrant had been issued by Ohio for Hild, the court denied Lapeer County's motion and issued an order to show cause why summary judgment should not be granted in favor of Montgomery County. The court declined to issue an order at that time regarding the State of Ohio's motion.
In response to the show cause order, plaintiff argued that no governor's warrant was needed in light of § 307.50 of the Ohio Revised Code, which authorizes reimbursement of expenses even when extradition has been waived. On this basis, moreover, plaintiff argued it was entitled to summary judgment. Defendant Montgomery County did not respond.
The court, reviewing plaintiff's arguments, issued an order granting summary judgment in favor of Lapeer County against Montgomery County. In the same order it granted the State of Ohio's motion and dismissed it from the case.
Defendant Montgomery County then changed attorneys and moved for reconsideration. The court denied the motion and entered judgment for plaintiff in the amount of $112,076.37 plus interest. Defendant filed a timely appeal.
On appeal, defendant argues (1) Ohio Rev.Code Ann. § 307.50 (Anderson 1992) does not create a cause of action under which recovery for expenses may be sought; and (2) even assuming that statute were to apply, genuine issues of material fact remain as to whether the requirements for reimbursement under the statute have been met, including whether the expenses were incurred for extradition purposes; did the prosecuting attorney have notice of waiver of extradition; and were the expenses incurred "necessary." Defendant also alleges the court improperly failed to join the Michigan State Police officers who shot Hild.
We first consider whether § 307.50 applies. That provision provides as follows:
When any person charged with a felony has fled to any other state, territory, or country, and the governor has issued a requisition for such person or requested the president of the United States to issue extradition papers, or the prosecuting attorney of any county in the state seeking the return of a felon has received notice of waiver of extradition, the board of county commissioners may pay, from the country treasury to the agent designated in such requisition, request to the president, or order by the prosecuting attorney seeking return, all necessary expenses of pursuing and returning the person so charged, or so much of such expenses as seem just.
Ohio Rev.Code Ann. § 307.50 (Anderson 1992).
Defendant contends that based on the language "the board of county commissioners may pay," the provision is discretionary. There appears to be no case law interpreting § 307.50. The Ohio Supreme Court, however, in a series of decisions dating back to 1837, has made clear that in instances of statutory construction the word "may" "is to be construed as 'shall,' where a matter of public interest is involved." Pennsylvania R.R. Co. v. Porterfield, 25 Ohio St.2d 223, 267 N.E.2d 792, 794 (1971). In addition, the Ohio attorney general, in considering § 307.50, expressly relied on Porterfield in construing the language "may" as mandatory. Op. Att'y Gen. 72-105. In light of these authorities, we conclude that § 307.50 does apply. 1
Defendant next contends that even assuming § 307.50 applies, plaintiff has failed to establish for summary judgment purposes that it is entitled to prevail as a matter of law. Defendant alleges three errors, which we address in turn.
Section 307.50 authorizes payment for expenses incurred "pursuing and returning the [fugitive]." Defendant argues the expenses were incurred not in pursuing Hild as a fugitive but, rather, in responding to a domestic violence incident. The record shows that in subsequent conversations with the police as Hild was being apprehended, his former wife expressed fear of Hild and the desire that he be captured.
These facts are not controlling. It is clear that Hild was being pursued as a "Wanted Person." According to police records, the incident report lists under nature of the incident "Wanted Person." The description of Carol Hild's initiating call into the police reporting Michael Hild's presence at her house is listed as "Wanted Person." The record further shows under offense codes "Attempt to Locate." We conclude therefore that no error has been shown.
Defendant next argues that a genuine issue of material fact remains as to whether the prosecutor had notice of waiver of extradition under § 307.50. That provision requires payment "when ... the prosecuting attorney of any county in the state seeking the return of a felon has received notice of waiver of extradition." In this case, Hild waived extradition on the same day he was turned over to Ohio authorities. There is nothing in the record that indicates actual notice of the waiver was given directly to the prosecuting attorney of Montgomery County. Notice need not be actual, however, but may include constructive notice. See, e.g., Wedra v. Thomas, 671 F.2d 713, 717 n. 1 (2d Cir.1982) (). The record reflects that as early as July 1992, Sandra Hobson, assistant Montgomery County prosecutor approved charges against Hild in addition to the current warrants on file for him "with a Nationwide Extradition radius." The prosecuting attorney's office was also mentioned in Lapeer County Sheriff's Department records reflecting the following communication from the Montgomery County Sheriff's Department:
[T]hey will come and get [Hild] when he waives, if problems, call their Pros. Office 513-225-5757 and talk to assistant that handles extraditions.
Under these circumstances, we conclude that the prosecutor had at least constructive notice of Hild's waiver.
Defendant further claims that plaintiff failed to establish entitlement to expenses in the...
To continue reading
Request your trial
-
Damron v. Yellow Freight System, Inc.
...that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505; see also Lapeer County, Mich. v. Montgomery County, Ohio, 108 F.3d 74, 78 (6th Cir. 1997). There must be some probative evidence from which the jury could reasonably find for the nonmoving party. ......
-
Brotherton v. Cleveland
...matters of public interest, and that the removal statute implicates a matter of public interest. Cf. Lapeer County, Mich. v. Montgomery County, Ohio, 108 F.3d 74, 76-77 (6th Cir.1997) (offering support for the first proposition). This seems far from established and "clear."7 Dr. Cleveland a......
-
Richardson v. Cvs Corp.
...that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505; see also Lapeer County, Mich. v. Montgomery County, Ohio, 108 F.3d 74, 78 (6th Cir.1997). There must be some probative evidence from which the jury could reasonably find for the nonmoving party. A......
-
Woodsmall v. Eclipse Mfg. Co., Inc.
...that one party must prevail as a matter of law." Anderson, All U.S. at 251-52, 106 S.Ct. 2505; see also Lapeer County, Mich. v. Montgomery County, Ohio, 108 F.3d 74, 78 (6th Cir.1997). There must be some probative evidence from which the jury could reasonably find for the nonmoving party. A......