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Stanley T. WALSH, Plaintiff-Appellee, v. Robert TAYLOR, Defendant-Appellant, Richard Margosian, Defendant.
This case arises from the underlying arrest and detention of plaintiff Stanley T. Walsh by defendant law enforcement officers Robert Taylor and Richard Margosian on a charge that plaintiff solicited the purchase of illegal drugs. A magistrate later dismissed the charge. Defendant Taylor appeals as of right the circuit court's order denying his motion for summary disposition premised on governmental immunity. We reverse.
Taylor first argues that the circuit court erred by denying his motion for summary disposition of plaintiff's state law tort claims of false arrest and imprisonment, malicious prosecution, and intentional infliction of emotional distress. He asserts that the undisputed facts demonstrated that he had probable cause for swearing to the request for warrant authorization (RWA) allegation that plaintiff solicited cocaine.
We review de novo a circuit court's summary disposition ruling. Maskery v. Univ. of Michigan Bd. of Regents, 468 Mich. 609, 613, 664 N.W.2d 165 (2003). Taylor moved for summary disposition pursuant to MCR 2.116(C)(7) and (C)(10). Although Taylor sought summary disposition, in part, on the basis of governmental immunity, the immunity provided by M.C.L. § 691.1407(2) does not apply to an intentional tort by an individual governmental employee, such as is alleged by plaintiff in this case. Lavey v. Mills, 248 Mich.App. 244, 257, 639 N.W.2d 261 (2001); Sudul v. Hamtramck, 221 Mich.App. 455, 458, 481, 486-488, 562 N.W.2d 478 (1997). The trial court did not specify the basis for its ruling, but apparently denied Taylor's motion pursuant to MCR 2.116(C)(10), which tests the factual support of a plaintiff's claim.1 Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial. Spiek, supra at 337, 572 N.W.2d 201.
The parties do not dispute jurisdiction in this case. We are compelled to address it, however, in light of Newton v. State Police, 263 Mich.App. 251, 688 N.W.2d 94 (2004), in which a panel of this Court concluded that a party cannot claim an appeal as of right where, although a party asserts governmental immunity, the trial court grants summary disposition under MCR 2.116(C)(10). We disagree with that part of the decision in Newton, and identify a conflict on the question of jurisdiction under MCR 7.202(6) and MCR 7.203(A)(1).2 MCR 7.215(J).
The question of jurisdiction is always within the scope of this Court's review, In re Complaint of Knox, 255 Mich.App. 454, 457, 660 N.W.2d 777 (2003); MCR 7.216(A)(10). The jurisdiction of the Court of Appeals is provided by law, and its practice and procedure are prescribed by the court rules and our Supreme Court. Const. 1963, art. VI, § 10. See MCR 7.202(6) and MCR 7.203. Unlike that of our Supreme Court or the circuit court, the jurisdiction of this Court is “entirely statutory,” People v. Milton, 393 Mich. 234, 245, 224 N.W.2d 266 (1974), and is generally limited to final judgments and orders. M.C.L. § 600.308.
In its exercise of prescribing this Court's practice and procedure, our Supreme Court has determined that a “final” judgment or order includes an appeal from an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee. MCR 7.202(6)(a)(v). The question of appellate review under MCR 7.202(6)(a)(v) is a matter of procedure.3 Const. 1963, art. VI, § 10.
As a question of procedure, then, the question is generally whether a party has an appeal as of right when only claims of intentional tort survive. The panel in Newton, supra, concluded that there is no appeal as of right in that situation. We disagree and, except that we are bound by this Court's prior decision, MCR 7.215(J), would conclude that, as a general rule, whenever a trial court rules on a motion for summary disposition where there is a governmental party acting under color of authority, the order may be appealed as of right because the cause of action falls within the scope of MCR 7.202(6)(a)(v).
When construing a court rule, the rules of statutory construction apply, and common words must be understood to have their plain, ordinary meaning. If a court rule is unambiguous, it must be enforced without further judicial construction. In re KH, 469 Mich. 621, 628, 677 N.W.2d 800 (2004).
Here, it is undisputed that all of plaintiff's allegations involved the conduct of on-duty police officers “acting under color of law.” Plaintiff alleged that Taylor committed intentional torts in his capacity as a police lieutenant with the narcotics unit, COMET.4 As noted previously, the intentional torts of a governmental employee are not entitled to immunity. Lavey, supra at 257, 639 N.W.2d 261. Here, although plaintiff's complaint alleged intentional torts, Taylor asserted that the case was barred because of governmental immunity.
The court rules limit an appeal from an order denying governmental immunity “to the portion of the order with respect to which there is an appeal of right.” MCR 7.203(A)(1). M.C.L. § 691.1407(2), provides that governmental employees are immune from tort liability if all of the following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The officer's ․ [or] employee's ․ conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, “gross negligence” means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
It is important to note that the purpose of governmental immunity is to protect the governmental body, not only from liability, but from the trial itself. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). It is axiomatic that, in any dispute where the governmental body claims an immunity defense, the plaintiff will allege that their case is outside the scope of immunity. Thus, most orders denying governmental immunity will arise as did the one here, as a result of a plaintiff's allegations in avoidance of immunity. However, a plaintiff's mere allegations are not enough to avoid the broad sweep of immunity. If a trial court must simply let a case go forward whenever the plaintiff claims that intentional torts are involved, immunity would be illusory. Instead, we believe that whenever a plaintiff alleges facts in avoidance of immunity, or when a defendant claims that immunity applies, the trial court should be obligated to evaluate the specific conduct alleged to determine whether a valid exception exists. The potential of immunity is at the core of virtually any case involving a governmental party. Thus, contrary to the reasoning in Newton, regardless of the specific basis of the trial court's ruling on a motion for summary disposition, whenever the effect is to deny a defendant's claim of immunity, the trial court's decision is, in fact, “ an order denying governmental immunity.” Logic dictates that such a determination be reviewable under MCR 7.203(A). MCR 7.202(6)(a)(v). When the trial court denied Taylor's motion in this case, the practical effect of the court's ruling was to deny Taylor's claim of governmental immunity.
The governmental immunity act, M.C.L. § 691.1401 et seq., “takes great pains to protect governmental employees to enable them to enjoy a certain degree of security as they go about performing their jobs.” Tarlea v. Crabtree, 263 Mich.App. 80, 687 N.W.2d 333 (2004) (citations omitted.) As noted, the purpose behind the court rule that permits a governmental body to appeal before there is a final judgment is to protect the defendant, not only from liability, but from the trial itself. Mitchell, supra at 511, 105 S.Ct. 2806. We do not believe that our Supreme Court intended the court rule to be read so restrictively that governmental bodies would be forced through discovery and trial whenever their motion for dismissal is denied on grounds other than MCR 2.116(C)(7), merely because the plaintiff contends that the governmental agency is not immune. If we were writing on a blank state, except for Newton, supra, we would find that a defendant who claims immunity may challenge, as of right, a plaintiff's alleged exception to governmental immunity when those allegations result in an order denying governmental immunity. MCR 7.203(A). Otherwise, in a case such as this, the claim of immunity could be “effectively lost” when a plaintiff's allegations in avoidance of immunity were “erroneously permitted to go to trial.” Mitchell, supra at 526, 105 S.Ct. 2806. Accordingly, but for Newton, supra, we would conclude, on the clear and unambiguous language of the court rules that, regardless of the basis for a lower court's order, whenever that order denies immunity to a governmental party, agency, official, or employee, it is a final order that may be appealed of right. MCR 7.202(6)(a)(v); MCR 7.203(A).
In this case, the court did not specify that it was ruling on Taylor's motion for summary disposition on the basis of governmental immunity, MCR 2.116(C)(7), and, in fact, the court noted that summary disposition was inappropriate because there were questions of fact. However, Taylor asserted that he was entitled to immunity and the court's ruling indisputedly rejected Taylor's immunity defense, M.C.L. § 691.1407, and was an order denying him governmental immunity. Because we are required to do so by Newton, MCR 7.215(J), instead of finding that we have jurisdiction to consider on appeal all the claims incident to this action, we have no choice but to consider the claims in this case as on leave granted, Newton, supra at 257, 688 N.W.2d 94, although we consider that approach both unnecessary and illogical.
With respect to the first half of plaintiff's first count, false arrest, plaintiff had to show that Taylor participated in an illegal and unjustified arrest, and that Taylor lacked probable cause to do so. Peterson Novelties, Inc. v. Berkley, 259 Mich.App. 1, 18, 672 N.W.2d 351 (2003). The deposition testimony and documentary evidence in this case establish that Taylor had no participation whatsoever in plaintiff's arrest on July 22, 2000. At the time of plaintiff's arrest, Taylor was monitoring undercover officers' drug solicitations from his position inside an abandoned house several blocks away from the location where Margosian and Lieutenant Brian Krutell, the acting Mt. Clemens police chief, had their encounter with plaintiff that led to his arrest.
False imprisonment, the second half of plaintiff's first count, involves “an unlawful restraint on a person's liberty or freedom of movement.” Peterson Novelties, supra at 17, 672 N.W.2d 351, citing Clarke v. K Mart Corp., 197 Mich.App. 541, 546, 495 N.W.2d 820 (1992). “The elements of false imprisonment are ‘(1) an act committed with the intention of confining another, (2) the act directly or indirectly results in such confinement, and (3) the person confined is conscious of his confinement.’ ” Moore v. Detroit, 252 Mich.App. 384, 387, 652 N.W.2d 688 (2002), quoting Adams v. Nat'l Bank of Detroit, 444 Mich. 329, 341, 508 N.W.2d 464 (1993). The restraint must have occurred without probable cause to support it. Peterson Novelties, supra at 18, 672 N.W.2d 351.
In this case, no evidence suggests that Taylor participated in any manner in the transportation of plaintiff to jail on July 22, 2000, the booking of plaintiff, or the placement of plaintiff inside a jail cell pending his arraignment and bond hearing. According to plaintiff's deposition testimony, the officer (Krutell) who tackled him on the sidewalk of Gratiot Avenue detained him, placed handcuffs on him, and later at the police station declined to consider the protestation of plaintiff's cosolicitor, Greg Nelson, that he had only obtained a cigarette from plaintiff. Plaintiff then spent approximately two days in jail before he posted a reduced bond on July 24, 2000. Plaintiff did not know Taylor, never saw him, and could not explain what involvement Taylor had in his case. Taylor's only involvement in plaintiff's detention occurred after plaintiff already had been jailed, when Taylor, the officer in charge of processing paperwork for all arrests by COMET during the weekend of July 21-22, 2000, presented to a prosecutor the RWA against plaintiff, swore before a court clerk regarding the veracity of the information contained in the RWA or a similar felony complaint, and had plaintiff arraigned. Assuming that Taylor's actions after plaintiff's detention resulted, directly or indirectly, in plaintiff's continued confinement, the question becomes whether probable cause supported Taylor's presentation of the RWA against plaintiff.
“Probable cause involves a determination of both the historical facts and whether the rule of law as applied to the facts is violated.” Matthews v. Blue Cross & Blue Shield of Michigan, 456 Mich. 365, 377, 572 N.W.2d 603 (1998). “[W]ant of probable cause is a question of law to be determined by the court. Where the facts on which the issue turns are in dispute, the question is for the jury.” Id. at 381-382, 572 N.W.2d 603 (citation omitted). “ ‘To constitute probable cause ․, there must be such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged.’ ” Matthews, supra at 387-388, 572 N.W.2d 603, quoting Wilson v. Bowen, 64 Mich. 133, 138, 31 N.W. 81 (1887). “Probable cause ․ is a commonsense concept dealing with practical considerations of everyday life that must be viewed from the perspective of reasonable and prudent persons, not legal technicians.” Peterson Novelties, supra at 19, 672 N.W.2d 351.
After considering the many depositions, police reports, and other items of documentary evidence provided by the parties, we conclude that the totality of the circumstances surrounding plaintiff's interaction with Nelson during the early morning hours of July 22, 2000, provided a sufficient basis from which Krutell and Margosian had probable cause to arrest plaintiff for solicitation of cocaine. According to Krutell, who in July 2000 was a twenty-two year police veteran and had worked on numerous occasions with COMET, at approximately 2:00 a.m. on July 22, he sat in an unmarked police car three blocks away from the intersection where the undercover officers posed as drug dealers. The muffled sounds of a conversation drew Krutell's attention to plaintiff and a man on a bike, Gregory Nelson, who stood on the sidewalk between twenty-five and fifty feet away from the unmarked police car. The conversation quickly ended after plaintiff said something that Krutell could not decipher, and Krutell then heard Nelson reply, “I'll be right back.” 5 Nelson rode his bike east toward the intersection where the undercover officers posed as drug dealers. For twenty-five or thirty seconds, plaintiff remained standing in the same spot on the sidewalk where he had encountered Nelson. Krutell then approached plaintiff, identified himself as a police officer, asked plaintiff for identification, frisked plaintiff for weapons, and asked plaintiff to sit down on the sidewalk until he could determine whether plaintiff had solicited the purchase of cocaine through Nelson.6 Within a short time, sixteen-year state police veteran and COMET narcotics team leader Margosian appeared and informed Krutell that Nelson had attempted to purchase crack cocaine from the undercover officers, and that other officers had arrested Nelson. When Krutell relayed to Margosian what he had observed and heard between plaintiff and Nelson, Margosian directed Krutell to arrest plaintiff for solicitation to deliver cocaine.7
Under these undisputed circumstances showing plaintiff's brief encounter with biker Nelson at 2:00 a.m. as he walked through a high crime area known for drug activity, followed by Nelson's immediate solicitation of crack cocaine from the undercover officers, while plaintiff simply stood on the sidewalk where he had encountered Nelson, apparently awaiting his return, we conclude that well-experienced police officers Krutell and Margosian possessed a reasonable suspicion that plaintiff had agreed with Nelson to solicit cocaine from the undercover officers. People v. Levine, 461 Mich. 172, 185, 600 N.W.2d 622 (1999) (when considering whether particular circumstances give rise to probable cause to suspect the commission of a crime, the reviewing court must examine the officers' observations in light of their experience and training, not in a vacuum or from a hypertechnical perspective); Peterson Novelties, supra at 19, 672 N.W.2d 351. Taylor had no personal knowledge of these facts that tend to establish probable cause that plaintiff and Nelson had agreed to solicit the delivery of crack cocaine. But in light of the well-established proposition that an officer may have probable cause regarding a suspect's commission of a crime on the basis of the presumptively reliable information conveyed to him by other officers, Taylor possessed probable cause regarding plaintiff's guilt of solicitation on the basis of the information he received from Krutell and Margosian. People v. Mackey, 121 Mich.App. 748, 753-754, 329 N.W.2d 476 (1982) (information received from a fellow officer may properly be used as a basis for a warrant affidavit, and when one police officer receives information from a fellow officer, the law assumes the source is credible); People v. Fuller, 106 Mich.App. 263, 266, 307 N.W.2d 467 (1981).
Taylor testified that he did not fill out the RWA, which listed him as both the officer in charge of the case and the complaining witness, but that he swore to the veracity of the document's content, specifically that plaintiff and Nelson had “solicited an undercover officer for the purchase of cocaine.” 8 When questioned regarding the source of his knowledge of the information to which he swore against plaintiff, Taylor expressed his disbelief that he had reviewed any of the police reports concerning plaintiff until his preliminary examination. Taylor then testified that he relied on the information he heard from Krutell and Margosian:
Taylor: They said that [plaintiff] ․ solicited Mr. Nelson to go purchase cocaine. Mr. Nelson went down, picked-solicited the undercover officer. At that time they took off, Mr. Nelson, and that was when Lieutenant Margosian went back and arrested [plaintiff].
Defense counsel: What is it [plaintiff] did?
Taylor: I don't know what he did, other than the fact he may have provided money to Mr. Nelson to buy cocaine.
Defense counsel: What did they tell you he did, and I want to know who they are?
Taylor: All I know is Lieutenant Krutell and Lieutenant Margosian said he should be arrested. That's all I can say. I don't know what they said he did.
Taylor subsequently and repeatedly testified that he could not recall with specificity what Krutell or Margosian might have advised him that plaintiff had done before Taylor swore to plaintiff's participation in the drug solicitation. Taylor explained that he had no personal knowledge of plaintiff's actions at the time of the drug solicitation because he was in an “undercover house” “about four blocks away,” and reiterated that he had relied on relevant information provided by Krutell, Margosian, and possibly Dailey.9
We conclude that no genuine issue of material fact exists that Taylor had probable cause to swear to the warrant against plaintiff on the basis of the presumptively reliable information he obtained from his fellow police officers because (1) Taylor recounted precisely the totality of facts relayed to him by Krutell and Margosian that amounted to probable cause that plaintiff had solicited drugs, (2) these facts strongly resembled the observations of Krutell and Margosian around the time of plaintiff's arrest, and (3) Taylor did not subsequently contradict the fact that he received the relevant information from Krutell and Margosian. Accordingly, the circuit court erred by denying Taylor's motion for summary disposition with respect to plaintiff's false imprisonment claim pursuant to MCR 2.116(C)(10).
In maintaining a claim of malicious prosecution, a plaintiff bears the burden of proving that (1) the defendant has initiated a criminal prosecution against him, (2) the criminal proceedings terminated in his favor, (3) the private person who instituted or maintained the prosecution lacked probable cause for his actions, and (4) the action was undertaken with malice or a purpose in instituting the criminal claim other than bringing the offender to justice. Matthews, supra at 378, 572 N.W.2d 603. The parties do not dispute that the criminal proceedings terminated in plaintiff's favor with the dismissal of the solicitation charge at his preliminary examination. Even assuming that Taylor may be deemed to have initiated or maintained the prosecution 10 against plaintiff, Taylor had probable cause to do so, and absolutely no evidence within the record gives rise to a reasonable inference that Taylor swore to the drug solicitation allegation against plaintiff “with malice or a purpose in instituting the criminal claim other than bringing the offender to justice.” Id. Taylor apparently believed in plaintiff's criminal culpability at the time that he swore to the drug solicitation allegation, but could not entirely recall the specific facts that formed probable cause with respect to plaintiff because, as the COMET officer in charge of the weekend drug operation, he swore to six or ten other warrants at the same time that he swore to the allegation against plaintiff, and all the warrants “blend[ed] together after a while.” Because probable cause existed and plaintiff has presented no evidence that would give rise to a reasonable inference that Taylor initiated or maintained the prosecution against him with an improper purpose, the circuit court erred when it denied Taylor's motion for summary disposition of the malicious prosecution claim pursuant to MCR 2.116(C)(10).
Multiple reasons warrant summary disposition of plaintiff's count that Taylor intentionally inflicted emotional distress. To establish a prima facie claim of intentional infliction of emotional distress, the plaintiff must present evidence of (1) the defendant's extreme and outrageous conduct, (2) the defendant's intent or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff. Moore, supra at 389, 652 N.W.2d 688. “Liability attaches only when a plaintiff can demonstrate that the defendant's conduct is ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.’ ” Lewis v. LeGrow, 258 Mich.App. 175, 196, 670 N.W.2d 675 (2003), quoting Graham v. Ford, 237 Mich.App. 670, 674, 604 N.W.2d 713 (1999). First, count VI of plaintiff's complaint fails to allege with specificity any actions by Taylor with intent or recklessness, and thus fails to state a valid claim for relief. MCR 2.116(C)(8). Second, because the evidence in this case indisputedly reflects that Taylor pursued an arrest warrant against plaintiff on the basis of presumptively credible information that he obtained from fellow officers Krutell and Margosian, which amounted to probable cause for plaintiff's arrest, as a matter of law he cannot be liable for intentional infliction of emotional distress. Cebulski v. Belleville, 156 Mich.App. 190, 196, 401 N.W.2d 616 (1986) (observing, in support of its finding that a police officer could not be liable for intentional infliction of emotional distress arising from his proper issuance of a speeding ticket, that liability could not be based on the officer insisting on his legal right in a permissible way, even though he might have been aware that such insistence certainly would cause emotional distress).
Taylor next argues that the circuit court should have granted his motion for summary disposition of plaintiff's claims under 42 U.S.C. § 1983. Taylor asserts that the undisputed facts establish his qualified immunity from plaintiff's allegations of unlawful arrest and supervisory liability. We again review de novo the circuit court's summary disposition ruling. Spiek, supra at 337, 572 N.W.2d 201.
According to 42 U.S.C. § 1983, any person who experiences “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” because of the actions of another person acting “under color of any statute, ordinance, regulation, custom or usage, of any State” may file an action seeking relief against the party that caused the deprivation. “In a suit against an officer for an alleged violation of a constitutional right,” however, the officer may invoke the defense of qualified immunity to avoid the burden of standing trial. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
In Saucier, the United States Supreme Court described as follows the standard for applying qualified immunity:
A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? ․
* * *
․ [I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it ․ serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable.
In this litigation, for instance, there is no doubt [of] ․ the general proposition that the use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized ․ “that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. [Saucier, supra at 201-202, 121 S.Ct. 2151 (emphasis added; citations omitted).]
Stated slightly differently, the plaintiff in a § 1983 action attempting to overcome qualified immunity bears the burden of establishing that a “reasonable official in the defendant['s] position could [not] have believed that his conduct was lawful.” Cope v. Heltsley, 128 F.3d 452, 459 (C.A.6, 1997) (citations omitted).
The first consideration therefore involves whether, taken in the light most favorable to plaintiff, the actions of Taylor in swearing to the veracity of the RWA violated plaintiff's constitutional rights. To justify the invasion of an individual's Fourth Amendment right to remain secure against unreasonable searches and seizures, a government official generally must obtain a warrant supported by probable cause. People v. Kazmierczak, 461 Mich. 411, 417, 605 N.W.2d 667 (2000).
Count VII of plaintiff's amended complaint asserts that Krutell, Margosian, and Taylor violated his Fourth Amendment rights by (1) “ [d]irecting the arrest of [p]laintiff knowing he had not committed any unlawful act(s),” and (2) “[t]hereafter, intentionally, knowingly and willfully failing and/or refusing to notify the appropriate officials that [p]laintiff had not committed any act(s) or omission(s) that constituted a violation of the laws of the state of Michigan.” With respect to the first allegation, the unrebutted deposition testimony of Krutell, Margosian, plaintiff, and Taylor establishes that Taylor was not involved in plaintiff's arrest on July 22, 2000. To the extent that the second allegation encompasses Taylor's swearing to the facts within the RWA, which presumably helped lengthen the term of plaintiff's allegedly false imprisonment in violation of the Fourth Amendment,11 the undisputed facts establish that Taylor had probable cause to do so on the basis of the presumptively reliable information he received from Krutell and Margosian regarding plaintiff and Nelson's attempt to solicit drugs from the undercover officers.
Count IV of plaintiff's amended complaint asserts that “at a minimum, one of the [d]efendants implicitly authorized, approved or knowingly acquiesced in the unlawful conduct of each of the other [d]efendants, being subordinate officers, such unlawful conduct, acts and/or omissions that are more fully described herein.” The unrebutted evidence indicates that both Taylor and Margosian occupied the status of lieutenants assigned to the COMET task force, both supervised narcotics teams, neither had supervisory authority over the other, and both answered to Commander Charles Schumacher, COMET's leader. Furthermore, no facts tended to establish that on July 22, 2000, COMET Lieutenant Taylor had any supervisory authority over Krutell, who also occupied the positions of lieutenant and acting chief of the Mount Clemens Police Department.
Under these undisputed circumstances, we conclude that the circuit court erred by denying Taylor's motion for summary disposition of plaintiff's § 1983 claims pursuant to MCR 2.116(C)(10).
I respectfully dissent from the majority opinion in this matter because there are questions of fact that should proceed to the trier of fact. Accordingly, I would affirm the trial court for the reasons the trial court stated on the record.
I strongly dissent from the majority's attempt to enlarge the scope of this Court's jurisdiction. I additionally dissent because I believe that this Court correctly asserted the application of the court rules at issue in Newton v. State Police, 263 Mich.App. 251, 688 N.W.2d 94 (2004).
The majority contends that when a trial court denies a motion for summary disposition on any basis where the defense of governmental immunity could be raised, this Court acquires jurisdiction to review all matters under MCR 7.203(A) and MCR 7.202(6)(a)(v). The majority states:
We do not believe that our Supreme Court intended the court rule to be read so restrictively that governmental bodies would be forced through discovery and trial whenever their motion for dismissal is denied on grounds other than MCR 2.116(C)(7), merely because the plaintiff contends that the governmental agency is not immune. [Ante at 512 (emphasis added).]
Impliedly, if not outrightly stated, the majority believes that plaintiffs allege facts outside the scope of governmental immunity simply to avoid governmental immunity, and not because the cause of action is based in law or fact. Whether intended or not, the clear message of the majority is that this Court must now act as a guardian against a perceived onslaught of frivolous litigation that our trial courts are seemingly ill-equipped to discover. Accordingly, I reject the majority's contention that plaintiff is filing a frivolous claim simply to avoid the defense of governmental immunity. Even assuming an onslaught of frivolous litigation, the trial courts-not this Court-are empowered to be the initial adjudicators of such perceived frivolous claims. However, the majority would have this Court become the court of initial jurisdiction to decide matters that may not have been raised at the trial court level, giving rise to another implied belief of the majority-that this Court should become a trier of fact. The concept of questions of fact being tried by the trier of fact, and not by panels of this Court, is still the jurisprudence of this state.
Thomas Jefferson understood the problems inherent when courts attempt to expand their statutory authority when he wrote:
Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. [Lipscomb & Bergh, eds, The Writings of Thomas Jefferson (Washington D.C.; Thomas Jefferson Memorial Ass'n, 1903-1904), vol. 15, p. 277, Letter by Thomas Jefferson to William C. Jarvis, 1820.]
This Court has taken great pains to distinguish between a motion brought under MCR 2.116(C)(7), (C)(8), and (C)(10). Wilson v. Alpena Co. Rd. Comm., 263 Mich.App. 141, 687 N.W.2d 380 (2004). Similarly, the panel in Newton, supra, stated:
The plain language of these court rules, interpreted in a common-sense fashion, lead us to conclude that this exception applies only to situations where the denial of summary disposition is directly based on a finding that the moving party is not entitled to government[al] immunity and not to a situation where, although a claim of governmental immunity has been asserted, the trial court denies a summary disposition motion because the party opposing summary disposition has stated a sufficient factual case to avoid summary disposition-in other words, as in this case, where the motion is actually disposed of as a MCR 2.116(C)(10) motion rather than a(C)(7) motion. [Newton, supra at 257, 688 N.W.2d 94.]
The Newton Court understood that there are differences between C(7) and C(10) motions. The majority in this case would eliminate such distinctions. This Court in Newton correctly stated and decided the case, in part, on these distinctions. As this Court stated in Newton, supra at 259, 688 N.W.2d 94:
In our opinion, the trial court did not make a legal determination concerning whether defendant was entitled to claim governmental immunity. Instead, the trial court made a determination that there were genuine issues of material fact to be resolved by the trier of fact. Therefore, the appeal in this case was taken from a(C)(10) determination rather than a(C)(7) determination. The order from which defendant claimed an appeal was therefore not a final order under MCR 7.202(7)(a)(v) and MCR 7.203(A)(1). Accordingly, defendant was required by the court rules to file an application for leave to appeal rather than a claim of appeal.
Thus, where a trial court has not made a finding whether a defendant is governmentally immune, it is premature for this Court to do so. However, the defendants in Newton were not precluded from raising the defense of governmental immunity. They could have asked for this Court to decide the issue by filing an application for leave to appeal. Accordingly, I dissent.
1. The circuit court found that questions of fact existed concerning all of plaintiff's claims.
2. We note that the court rule contains an error. MCR 7.203 states that this Court has jurisdiction over final judgments as defined in MCR 7.202(7). In May 2004, MCR 7.202 was renumbered and MCR 7.202(7) was changed to MCR 7.202(6), but MCR 7.203 has not yet been revised to reflect that change. The opinion in Newton, supra, does not reflect these changes.
3. Moreover, application of the court rule does not raise a question of subject-matter jurisdiction; if it did, we could not exercise our discretion to accept a case by granting leave on trial court orders that cannot be appealed as of right. MCR 7.205(D)(3). Subject-matter jurisdiction involves “ ‘the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial.’ ” Joy v. Two-Bit Corp., 287 Mich. 244, 253-254, 283 N.W. 45 (1938), quoting Richardson v. Ruddy, 15 Idaho 488, 98 P. 842 (1908).
4. County of Macomb (Narcotics) Enforcement Team.
5. As Krutell testified, he believed that as Nelson rode away from plaintiff, he told plaintiff, “I'll be right back.” Although plaintiff testified to the contrary that Nelson said, “Good lookin' out dog,” the determination whether probable cause exists depends on the facts as the officer perceived them. People v. Champion, 452 Mich. 92, 115, 549 N.W.2d 849 (1996).
6. Krutell inquired of plaintiff whether he had been drinking, and plaintiff replied that he had consumed six beers and was in the process of walking to his house.
7. After plaintiff was taken to the police station, Krutell verified that Nelson was the same person on the bike that he had seen with plaintiff.
8. After Taylor had testified regarding the RWA and the felony information, plaintiff's counsel asked Taylor the imprecise question, “Did you swear to this document for obtaining the warrant?” Accordingly, it seems that Taylor swore to either the facts in the RWA or the felony information. The felony complaint alleges that plaintiff solicited cocaine from Officer Langley, but does not refer to Nelson.
9. Taylor did not recall whether he received any relevant information from Dailey.
10. “[I]n Michigan, the prosecutor's exercise of his independent discretion in initiating and maintaining a prosecution is a complete defense to an action for malicious prosecution.” Matthews, supra at 384, 572 N.W.2d 603. “Unless the information furnished [to the prosecutor] was known by the giver to be false and was the information on which the prosecutor acted, the private person has not procured the prosecution.” Id. at 385, 572 N.W.2d 603 (emphasis in original).
11. If Taylor's action of swearing to the facts within the RWA did not prolong plaintiff's imprisonment and seizure in violation of the Fourth Amendment, plaintiff could not state a valid § 1983 claim merely on the basis that Taylor participated in a malicious prosecution of him. This Court has recognized the United States Supreme Court's determination that “a prosecution without probable cause is not actionable under § 1983 as a violation of substantive due process rights under the Fourteenth Amendment,” and that “to prevail under § 1983, a plaintiff who is improperly prosecuted and arrested must show some independent violation of a right protected by the constitution or federal law.” Payton v. Detroit, 211 Mich.App. 375, 404, 536 N.W.2d 233 (1995).
SAAD, P.J., concurred.
Response sent, thank you
Docket No: Docket No. 246059.
Decided: September 23, 2004
Court: Court of Appeals of Michigan.
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