Meadows v. City of Detroit, Docket No. 93451

• Decision Date: 21 January 1988
• Docket Number: Docket No. 93451
• Citation: 418 N.W.2d 100,164 Mich.App. 418
• Parties: Henry C. MEADOWS, and Claudia L. Meadows, his wife, Plaintiffs-Appellants, v. CITY OF DETROIT, City of Detroit Police Department, William L. Hart, Chief of Police, George Bennett, Former Deputy Chief of Police, and Philip Tannian, Former Chief of Police, Jointly and Severally, Defendants-Appellees. 164 Mich.App. 418, 418 N.W.2d 100
• Court: Court of Appeal of Michigan — District of US

Page 100

418 N.W.2d 100

Henry C. MEADOWS, and Claudia L. Meadows, his wife Plaintiffs-Appellants, v. CITY OF DETROIT, City of Detroit Police Department, William L. Hart, Chief of Police, George Bennett, Former Deputy Chief of Police, and Philip Tannian, Former Chief of Police Jointly and Severally, Defendants-Appellees.

Docket No. 93451.

164 Mich.App. 418, 418 N.W.2d 100

Court of Appeals of Michigan.

Submitted April 27, 1987.

Decided Nov. 16, 1987.

Released for Publication Jan. 21, 1988.

[164 MICHAPP 421] Benjamin Whitfield, Jr., Detroit, for plaintiffs-appellants.

Donald Pailen, Corp. Counsel, Abigail Elias, Deputy Corp. Counsel, and Thomas L. Walters and David J. Masson, Asst. Corp. Counsel, Detroit, for defendants-appellees.

Before WALSH, P.J., and WAHLS and GIDDINGS ^*, JJ.

WAHLS, Judge.

Henry C. Meadows (hereafter plaintiff) and his wife brought suit against defendants [164 MICHAPP 422] in Wayne Circuit Court, seeking damages for injuries arising out of plaintiff's discharge from employment as a police officer, based on wrongful discharge, breach of contract, intentional infliction of emotional distress, loss of consortium, defamation, and violation of due process rights. Plaintiff also sought a writ of mandamus to compel his reinstatement with back pay. He now appeals as of right from a grant of summary disposition in favor of defendants based on governmental immunity. We affirm.

This case involves various tort and contract claims brought against the City of Detroit, its police department, and certain officials within that department by a Detroit police officer who was discharged from employment in May, 1973. The serpentine nature of the history of this case, which was filed in 1983, is as labyrinthine as it is lengthy. This is because prior to the commencement of the instant action the underlying facts in this case generated several years of adjudication, arbitration, and litigation in administrative and federal court forums. A somewhat detailed review of these underlying facts is necessary in order to place the present lawsuit in context.

Plaintiff was employed as a police officer for the City of Detroit from 1965 until May, 1973, when he was suspended without pay from the Detroit Police Department on the same day that he was indicted by a Wayne County grand jury on criminal charges arising out of a 1972 narcotics investigation. In September, 1974, a Detroit Recorder's Court jury found plaintiff not guilty of criminal wrongdoing. Nevertheless, in October, 1974, plaintiff was notified by the department that he was being charged with having violated several departmental rules and regulations. Specifically, plaintiff was suspected of having failed to report the acceptance[164 MICHAPP 423] of a bribe by his partner in the police department, having intentionally falsified a search warrant affidavit, and having neglected to turn over property seized from arrested persons to the proper officials without unnecessary delay. Following a hearing in October, 1974 before defendant Philip Tannian, then Chief of the Detroit Police Department, plaintiff's discharge without pay was affirmed.

Pursuant to departmental procedure and an applicable collective bargaining agreement, plaintiff appealed Chief Tannian's decision to the Detroit Police Department Trial Board, which consisted of Defendant William L. Hart, then deputy chief of police, and Inspectors Richard Dungy and Rufus Anderson. ¹ See Detroit Charter, article 7, ch. 11, Sec. 7-1101 et seq. In May, 1975, a de novo hearing was held before the trial board to determine the validity of the charges against plaintiff. Following that hearing, the trial board found plaintiff guilty of all but two charges and thus upheld his discharge. This decision was appealed to an arbitration panel, as permitted by the applicable collective bargaining agreement, and in an opinion issued in April, 1976, all but one of the charges against plaintiff were set aside. The arbitration panel upheld the trial board's finding that plaintiff had failed to report that his partner had accepted a bribe and remanded the case to the trial board for the limited purpose of determining whether the penalty meted out to plaintiff was "unduly harsh" in light of the substantial reduction of charges sustained on appeal. The arbitration panel [164 MICHAPP 424] noted explicitly that plaintiff would be permitted to bring his case before the arbitration panel again once the trial board had evaluated the fairness of the penalty he had been given.

In December, 1976, plaintiff was notified that the trial board reaffirmed its support of the penalty rendered previously. Apparently, the composition of the trial board at that time was the same as it had been earlier, with the only change being that defendant Hart had since replaced defendant Tannian as chief of police. At this point, plaintiff's union evidently refused to continue handling plaintiff's grievance by returning to the arbitration panel. In any case, the trial board's reaffirmance of the propriety of the penalty was not taken by plaintiff back to arbitration. Instead, in October, 1978, approximately twenty-two months after the trial board issued its reaffirmance, plaintiff filed suit against defendants in the United States District Court for the Eastern District of Michigan, alleging various claims grounded on the underlying facts in this case and apparently joining his wife as a plaintiff after several amendments to his complaint. Plaintiff's federal lawsuit was dismissed by Judge Charles Joiner pursuant to defendants' motion for summary judgment, and that dismissal was affirmed on appeal by the Sixth Circuit Court of Appeals. Thereafter, plaintiff's writ for certiorari to the United States Supreme Court was denied.

On May 10, 1983, plaintiff filed the instant lawsuit in Wayne Circuit Court. Defendants moved for accelerated judgment under GCR 1963, 116, now MCR 2.116, on several bases. In an opinion dated May 15, 1984, then Circuit Judge Joseph B. Sullivan granted accelerated judgment on those of plaintiff's claims arising out of the collective bargaining agreement, including challenges to the [164 MICHAPP 425] procedures employed in processing plaintiff's discharge, on the ground that plaintiff's failure to exhaust his contractual remedies (i.e., his failure to appeal to the arbitration panel a second time) precluded judicial review. Judge Sullivan took notice of plaintiff's claim that the union had refused to take plaintiff's case back to arbitration, noting, however, that plaintiff's collective-bargaining claims were still precluded until plaintiff alleged and proved that the union had breached its duty of fair representation in handling plaintiff's grievance. Judge Sullivan observed that nothing prevented plaintiff from amending his complaint to add such a claim. Moreover, Judge Sullivan found that plaintiff's suit was not barred by the three-year statute of limitations, which all parties agreed was applicable in the case, because the limitations period was tolled during the contractual grievance procedures and the federal court litigation. After a rehearing was denied, plaintiff was successful in obtaining permission to amend his complaint to add an allegation that the union's refusal to pursue a second appeal to the arbitration panel was wrongful and amounted to a breach of its duty of fair representation.

In response to plaintiff's amended complaint, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(8)--failure to state a claim on which relief can be granted--arguing that plaintiff's tort claims were barred by governmental immunity, his contract claims were barred by the statute of limitations, and his request for a writ of mandamus was barred by a failure to exhaust his administrative remedies. A hearing was conducted on April 23, 1986, before Judge Richard D. Dunn, resulting in an amended order dated June 6, 1986, granting summary disposition to defendants based on governmental immunity. It [164 MICHAPP 426] is from this order which plaintiff now appeals as of right, arguing that the trial court erred in ruling that his tort claims were barred by governmental immunity and in dismissing his claims based on contract.

A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal basis of the complaint, not whether factual support exists. The motion is to be judged by reliance on the pleadings alone and may not be granted unless a claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Brown v. Northville Regional Psychiatric Hospital, 153 Mich.App. 300, 303, 395 N.W.2d 18 (1986).

First, plaintiff argues that the trial court erred in determining that defendants in this case are entitled to governmental immunity. M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 3.996(101) et seq. Pursuant to the rules enunciated by the Supreme Court in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 591-592, 363 N.W.2d 641 (1984), we will determine the applicability of governmental immunity in this case first regarding the individual defendants and then regarding the municipal defendant. Regarding the individual defendants, Ross differentiates between officials at the highest levels of government and lower-level officials. The test applicable to the former was set forth as follows:

"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." 420 Mich 592.

In this case, defendants Tannian and Hart, at different times, functioned as the chief of police. [164 MICHAPP 427] Tannian was acting as the highest executive officer of the Detroit Police Department when he discharged plaintiff. The city charter, article 7, ch. 11, Sec. 7-1106, describes the chief of police as...