Marrocco v. Randlett

• Decision Date: 05 December 1988
• Docket Number: Docket No. 79802,No. 1,1
• Parties: W. Thomas MARROCCO, Jr., Plaintiff-Appellant, v. James RANDLETT, Lillian Dannis, aka Lillian D'Annunzio, aka L. Klimecki Dannis, Defendants-Appellees, and Kasco Finance Corporation, a Michigan corporation, and the Bank of Warren, a Michigan banking corporation, and wholly owned subsidiary of Kasco Finance Corporation, jointly and severally, Defendants. Calendar431 Mich. 700, 433 N.W.2d 68
• Court: Michigan Supreme Court

Page 68

433 N.W.2d 68

W. Thomas MARROCCO, Jr., Plaintiff-Appellant, v. James RANDLETT, Lillian Dannis, aka Lillian D'Annunzio, aka L. Klimecki Dannis, Defendants-Appellees and Kasco Finance Corporation, a Michigan corporation, and the Bank of Warren, a Michigan banking corporation and wholly owned subsidiary of Kasco Finance Corporation, jointly and severally Defendants.

Docket No. 79802.

Calendar No. 1.

431 Mich. 700, 433 N.W.2d 68

Supreme Court of Michigan.

Argued Nov. 3, 1987.

Decided Dec. 5, 1988.

Weinstein, Gordon, Hoffman & Shulman, P.C., Southfield, Stewart, Nowak & Flinn, P.C. by Eric G. Flinn, Sterling Heights, for plaintiff-appellant.

Mathew A. Seward, Rosalind Rochkind, Garan, Lucow, Miller, Seward, Cooper & Becker, P.C., Detroit, for defendants-appellees.

LEVIN, Justice.

The question presented is whether the mayor and the treasurer of a home-rule city are absolutely immune from tort liability pursuant to Ross v. Consumers Power Co. (On Rehearing ), 420 Mich. 567, 363 N.W.2d 641 (1984). The trial court granted summary disposition ¹ for defendant elected municipal officials on plaintiff's claims alleging tortious conduct. The Court of Appeals affirmed. ² We reverse because the plaintiff alleged conduct that, if true, may not have been within defendants' executive authority.

I

Plaintiff W. Thomas Marrocco, Jr., was examined on deposition at considerable length. That was the only evidence presented to the trial court by either the plaintiff or the defendants before the court granted summary disposition. We therefore address the legal issues on the basis of the facts Marrocco alleges. The factual record is greatly limited because this case has not been tried. The statement of facts that follows synthesizes Marrocco's allegations in his pleadings and during his depositions.

Marrocco was an assistant city attorney of Warren from 1972 to 1975, when he was appointed city attorney by Mayor Ted Bates. Marrocco asserts that he applied for and was granted a leave of absence by the Civil Service Board from his civil service position as an assistant city attorney. Defendant Lillian Dannis was elected treasurer of Warren in 1979, and defendant James Randlett was elected mayor of Warren in 1981.

Antecedents of this controversy are described in City of Warren v. Dannis, 136 Mich.App. 651, 654, 357 N.W.2d 731 (1984), where the Court of Appeals referred to a treasurer who preceded Dannis and "made some extremely questionable and completely inappropriate investments which ended in the city's losing large sums of money." These included certain arbitrage transactions. The Securities and Exchange Commission had been holding hearings regarding such transactions engaged in by the City of Ann Arbor and became interested in similar transactions by Warren. The Warren City Council followed Ann Arbor's lead in establishing an Investment Policy Commission (IPC) to set investment policy and oversee city investments. An advisory opinion of the Attorney General ³ agreed that the city council had not unlawfully delegated its authority in setting up the IPC. Marrocco was involved in the formation of the Warren IPC.

After her election as treasurer in 1979, Dannis refused to follow the investment policy. Marrocco's office brought an action for mandamus on behalf of the city to require compliance. Among the irregularities the city asserted in Dannis' behavior as treasurer was exceeding the limit on the amount of funds the city could deposit in one bank--in this instance the Bank of Warren--as a percentage of the bank's net worth. Subsequently, the court granted the city's motion to dismiss a show cause hearing--which had been scheduled for May, 1980-- and to allow it to amend the complaint to ask for a declaratory judgment. Marrocco said that Dannis altered her behavior so as to be in "substantial compliance" with the ordinance for two weeks, but then she again was out of compliance. The city did not seek a preliminary injunction. Two months after the city commenced the mandamus action, the city council adopted the investment policy as an ordinance, in an effort, according to Marrocco, to obtain Dannis' compliance without further litigation.

Marrocco alleges that Dannis and Randlett received consideration in the form of loans and high interest on personal accounts from the Warren Bank in return for the city's low interest deposits on which the bank earned high interest. Marrocco asserts that a bank officer funded one-third of Dannis' election campaign to influence her judgment as a public official.

On November 9, 1981, the Monday after Randlett was elected mayor, Randlett asked Marrocco to leave his position as city attorney. Randlett said that he realized that Marrocco, expecting to leave after the election, had already sought civil service reinstatement to his former position, but Randlett then stated that he did not recognize the reinstatement and that Marrocco's services would no longer be required in any capacity in the city attorney's office. Marrocco said that he desired to stay at least until the following June so that his pension would vest and that the mayor's actions would compel him to bring an action in circuit court. Thomas Barwin, the mayor's assistant, said that they would ruin his reputation or ruin him if he did. Marrocco gathered his things and left his office that day. Also, either that Monday or the prior Friday, Dannis told Marrocco: "I believe you're the most honest City Attorney this City ever had, but I want you to pack your pencils and get out of town." From November 9, 1981, until Marrocco's ultimate reinstatement in 1983, he was deprived of the opportunity to work as an assistant city attorney in Warren.

Marrocco pursued administrative remedies in January and February, 1982, in an effort to be reinstated. The Civil Service Board had earlier reinstated him as an assistant city attorney. However, Randlett replaced at least two members of the board, and, after reconsidering the issue, it declined to take any action regarding Marrocco's reinstatement.

Marrocco then commenced a civil action, pursuing this course from February to April, 1982. In April, the circuit court ordered Marrocco reinstated as an assistant city attorney. On the first day he reported for work, however, city attorney David Griem, Marrocco's successor, told him that the mayor's office was pressuring Griem to fire him. Marrocco states that Griem told him he would note that Marrocco reported for work, but that he should leave because the mayor and Barwin were going to have him thrown out. Marrocco left and that month accepted a position in the Macomb County Prosecutor's office. He informed his supervisor at his new job that he would return to his Warren job when able to do so.

Within three weeks of Marrocco's April, 1982, start at the prosecutor's office, two supervisors, Paris and Lord, told Marrocco that both Randlett and Dannis were pressuring them to fire him. Griem also told Marrocco that he knew Randlett and Dannis had contacted Paris' office. After two months' work, Marrocco resigned his position handling paternity cases--which Marrocco says he was told was a "back shelf position where nobody can get you"--primarily because he was aware of what his presence might be doing to Paris' career.

In the ensuing months, Griem's refusal to fire Marrocco for cause, his request that Randlett put in writing his instruction to do so, and his continuing to pursue the lawsuit that was the subject of City of Warren v. Dannis, despite pressure from Randlett not to, led to Griem's resignation in September or October, 1982.

Marrocco experienced further harassment. He sought to enter Warren City Hall a number of times before and after his court-ordered reinstatement as an assistant city attorney. In May or June, 1983, Marrocco entered city hall on crutches after an accident. He perused campaign paraphernalia for Randlett's reelection on a table outside the mayor's office and made a tongue-in-cheek remark about the "mayor cleaning up corruption." Barwin told him to remove himself or be thrown out. Marrocco also states that persons in and out of city hall were afraid to talk to him. At one point he sought to aid assistant city attorney Servitto with a motion in a case and learned that Randlett threatened Servitto with dismissal if Servitto accepted Marrocco's aid. Servitto was later fired.

Marrocco also alleges that Dannis harassed him by raising the tax assessment on his house so he could not afford it and had to sell, and that subsequently the assessment was reduced.

II

In Ross v. Consumers Power Co (On Rehearing ), 420 Mich. 567, 592, 363 N.W.2d 641 (1984), this Court stated:

"Judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their respective judicial, legislative, and executive authority." ⁴

The parties concede that Randlett and Dannis are among the highest elective officials of Warren government. The question presented is thus whether there is a genuine issue of material fact whether defendants acted "within their ... executive authority." ⁵

No decision of this Court defines "within their ... executive authority." In Smith v. Dep't of Public Health, 428 Mich. 540, 544, 611, 410 N.W.2d 749 (1987), this Court said that there was no " 'intentional tort' exception to governmental immunity" and thus intentional torts are immune if committed within the scope of a governmental function. It was emphasized, however, that "the intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law is not the exercise of a governmental function." ⁶

Ross establishes a framework for analysis in its methodology for answering the analogous question whether acts of lower level officials or governmental units are "governmental functions." The analysis is to look at the statutes (ordinances) to...