Marlin v. City of Detroit

• Decision Date: 16 May 1994
• Docket Number: Docket No. 140367
• Citation: 205 Mich.App. 335,517 N.W.2d 305
• Parties: Constance F. MARLIN, Individually and as Conservator of the Estate of John E. Marlin, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant (After Remand).
• Court: Court of Appeal of Michigan — District of US

Page 305

517 N.W.2d 305

205 Mich.App. 335

Constance F. MARLIN, Individually and as Conservator of the Estate of John E. Marlin, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant (After Remand).

Docket No. 140367.

Court of Appeals of Michigan.

Submitted March 1, 1994, at Detroit.

Decided May 16, 1994, at 10:00 a.m.

Released for Publication June 30, 1994.

Fieger, Fieger & Schwartz, P.C. by Geoffrey N. Fieger, Southfield, for plaintiff-appellee

Donald Pailen, Corp. Counsel, and Joanne E. Stafford, Supervising Asst. Corp. Counsel, Detroit, for defendant-appellant.

AFTER REMAND

Before REILLY, P.J., and RICHARD ALLEN GRIFFIN and BOSMAN, ^* JJ.

REILLY, Presiding Judge.

Defendant appeals as of right the judgment entered in favor of plaintiff following a jury trial in circuit court. We reverse and remand for entry of an order granting summary disposition to defendant. MCR 2.116(C)(10).

The facts of this case were set forth in Marlin v. Detroit, 177 Mich.App. 108, 441 N.W.2d 45 (1989). There, plaintiff appealed the circuit court order that granted defendant summary disposition based on governmental immunity. MCR 2.116(C)(7). This Court first held that the failure to return the decedent's property "constitutes negligence and not an ultra vires act" that would avoid governmental immunity. Id. at 114, 441 N.W.2d 45. However, in regard to plaintiff's "constitutional violation claim," this Court noted that governmental immunity is not available as a defense. Therefore, the case was remanded for a determination whether plaintiff had pleaded a violation of the Michigan Constitution by virtue of a governmental custom or policy. Id.

On remand, defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). In her response to the motion, plaintiff acknowledged that her claim did not come under the Equal Protection Clause of Const.1963, art. 1, § 2. However, plaintiff argued that a trier of fact might properly conclude that her procedural due process rights, protected under Const.1963, art. 1, § 17, were violated. Defendant's motion was denied, and defendant's application for leave to appeal was denied.

Initially, we note that the law in the area of judicially inferred causes of action for damages for a violation of the Michigan Constitution is undeveloped. In Smith v. Dep't of Public Health, 428 Mich. 540, 410 N.W.2d 749 (1987), a majority of the justices agreed that "[a] claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases." Id. at 544, 410 N.W.2d 749. However, the Court did not determine whether the circumstances in that case could support such a claim because the record was inadequate. ¹ Decisions of this Court and the Supreme Court after Smith provide little guidance in determining whether the facts of a given case are appropriate for inferring a cause of action for damages resulting from violation of the Michigan Constitution. However, we find the observations of Justice Boyle in Smith to be helpful in providing a framework in which to decide this case.

According to Justice Boyle's opinion, "The first step in recognizing a damage remedy for injury consequent to a violation of our Michigan Constitution is, obviously, to establish the constitutional violation itself." Id. at 648, 410 N.W.2d 749. In this respect, plaintiff's claim depends upon a showing that, by virtue of a custom or policy, defendant deprived plaintiff of her property without due process of law.

Plaintiff argues that defendant deprived her of her property by failing to notify her of the property's whereabouts, and that the failure to notify amounts to a constitutional violation. Plaintiff does not contend that defendant refused to give her the decedent's personal effects when they were requested. Nor does plaintiff argue that the police department acted improperly in initially taking possession of the property. Rather, plaintiff's claim is based on the premise that the police department had a custom or policy of simply placing property no longer required as evidence in the property office without taking further steps to deliver the property to the owner or the person entitled to receive the property, which plaintiff contends violates M.C.L. § 52.208; M.S.A. § 5.953(8). ²

Const.1963, art. 1, § 17 states: "No person shall ... be deprived of life, liberty or property, without due process of law." In Parratt v. Taylor, 451 U.S. 527, 548, 101 S.Ct. 1908, 1919, 68 L.Ed.2d 420 (1981), Justice Powell's concurring opinion discussed the nature of a deprivation in the context of the Due Process Clause of the Fourteenth Amendment:

A "deprivation" connotes an intentional act denying something to someone, or, at the very least, a deliberate decision not to act to prevent a loss. The most reasonable interpretation of the Fourteenth Amendment would limit due process claims to such active deprivations.

This view was later adopted by the Court in Daniels v. Williams, 474 U.S. 327, 330-331, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986), which was quoted by Justice Boyle in Smith, supra 428 Mich. at 650, 410 N.W.2d 749.

Even if we accept as true plaintiff's assertion that defendant had a custom or policy of taking possession of property and holding it without trying to locate the rightful owner of the property, it still cannot be established that such a custom or policy deprived anyone of property. Although plaintiff was temporarily unable to obtain possession of her husband's property because she was unaware of its whereabouts, she was not deprived of the property by city policy or custom. ³

Plaintiff did not show a policy or custom of an "intentional act denying something to someone." Parratt, supra 451 U.S. at 548, 101 S.Ct. at 1919. The property was released to plaintiff's representative on request. Nor did plaintiff show a policy or custom of "a deliberate decision not to act to prevent a loss." Id. There was no "loss" of property inasmuch as it was always available to plaintiff on request. Moreover, assuming that defendant's employees were obligated to return the property to the rightful owner under M.C.L. § 52.208; M.S.A. § 5.953(8), plaintiff has not alleged or established that failure to do so was intended to deny her possession. Mere negligence does not work a deprivation in the constitutional sense. Daniels, supra 474 U.S. at 330, 106 S.Ct. at 664; Smith, supra 428 Mich. at 650, 410 N.W.2d 749.

Under these circumstances, the retention of the property was custodial in nature. The property was conserved for the benefit...