Gracey v. Wayne County Clerk
Gracey v. Wayne County Clerk
Opinion of the Court
Plaintiffs appeal as of right the trial court’s grant of summary disposition for defendants on the basis of governmental immunity in this action for invasion of privacy, malicious prosecution, and intentional infliction of emotional distress. We affirm in part and reverse in part.
Plaintiff Paul Gracey was a candidate in the August 1989 election for the office of municipal judge in the City of Grosse Pointe Farms. His wife, plaintiff Irene Gracey, hand-delivered a number of absentee ballots to the city clerk’s office although she was not a member of the immediate family of
The day before the primary election, the Michigan State Police were contacted about plaintiffs’ conduct. James Killeen, the Wayne County Clerk, called a press conference at which he alleged improprieties on the part of plaintiffs. Plaintiffs alleged that Killeen, the Wayne County Board of Canvassers, and Edward Carey, the Elections Director for Wayne County, knowingly gave false information at the press conference concerning plaintiff Irene Gracey’s involvement in the election process. Plaintiffs also alleged that these defendants knowingly gave false information to the police. Plaintiffs alleged that defendant John D. O’Hair, the Wayne County Prosecutor, continued to prosecute plaintiff Irene Gracey after this Court had found that she had not tampered with any absentee ballots. Finally, plaintiffs alleged that Wayne County was vicariously liable.
Plaintiffs argue that actions of a county clerk that might normally be considered within the scope of authority of the clerk become acts outside that scope when performed for an ulterior purpose. We agree. A motion for summary disposition pursuant to MCR 2.116(C)(7) should not be granted unless no factual development could provide a basis for recovery. Harrison v Director of Dep’t of Corrections, 194 Mich App 446, 449; 487 NW2d 799 (1992). In order to determine whether plaintiffs’ alleged facts justify a finding that recovery in tort is not barred by governmental immunity, a court must consider all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted by the parties. Id.
Plaintiffs claimed that Killeen was a neighbor and financial contributor to one of plaintiffs’ oppo
The trial court recognized that Killeen "may very well have had ulterior motives and probably did, but the fact that he had ulterior motives does not take away his function as county clerk and him performing his task as county clerk.”
We believe that the Supreme Court in Marrocco v Randlett, 431 Mich 700, 713; 433 NW2d 68 (1988), reintroduced concepts that define governmental function by reference to an actor’s intent. Consequently, if defendant intentionally conducted a press conference to cause some mischief not authorized by law, then his otherwise appropriate action is not the exercise of a governmental function and is outside the scope of his immunity. In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 592; 363 NW2d 641 (1984), the Supreme 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.
The county clerk qualifies as one of the highest
The Marrocco Court specifically emphasized, quoting Smith v Dep’t of Public Health, 428 Mich 540, 544, 611; 410 NW2d 749 (1987), 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. Id., pp 707-708.
As pointed out in the concurring opinion of Justice Boyle, the majority in Marrocco appears to have adopted the position that the tortious nature of the defendants’ act may, in and of itself, carry the act outside the official’s executive authority and thereby outside the scope of his immunity. Thus, here, even if the county clerk expressly or impliedly possessed authority to conduct a press conference, Marrocco suggests that if the county clerk’s purpose in holding the press conference was not authorized by law, then the county clerk was not acting within the scope of his executive authority, and he is not entitled to absolute immunity.
We believe that it is a mistake to tamper with the clear, broad concept of absolute immunity as
Plaintiffs also argue that summary disposition was inappropriate with respect to defendant Carey because they alleged facts to show Carey’s gross negligence. We disagree that plaintiffs have set forth specific facts to show a genuine issue for trial. In order for plaintiffs to survive Carey’s motion for summary disposition, they must allege facts justifying application of an exception to governmental immunity. Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992). The governmental immunity act takes great pains to protect government employees to enable them to enjoy a certain degree of security as they go about performing their jobs. Madison v Detroit, 208 Mich App 356, 360; 527 NW2d 71 (1995). In this case, plaintiffs must allege that Carey’s actions amounted to gross negligence, i.e. that his conduct was so reckless as to demonstrate a substantial
Although plaintiffs’ complaint alleged that Carey requested an investigation into the actions of plaintiff Irene Gracey when Carey knew or had reason to know that the allegations were factually and legally false, Carey averred in an affidavit that he did not request a state police investigation. Plaintiffs have not provided any proof that Carey in fact called for such an investigation. A party opposing summary disposition pursuant to MCR 2.116(0(10) may not rest on mere allegations of a pleading, but must, by affidavits or other appropriate means, set forth specific facts to show that there is a genuine issue for trial. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994).
Moreover, even if Carey had initiated such an investigation, it was part of his job to oversee election operations in Wayne County. Indeed, the investigation discovered irregularities in the absentee ballot process. No reasonable juror could have honestly concluded that an investigation under these circumstances constituted gross negligence. Accordingly, summary disposition was appropriate. Enzymes of America, Inc v Deloitte, Haskins & Sells, 207 Mich App 28, 34; 523 NW2d 810 (1994).
Plaintiffs argue that this Court’s granting of mandamus to plaintiffs constituted a finding that the Wayne County Board of Canvassers acted outside the scope of its authority. We disagree. Generally, government agencies are immune from tort liability for injuries arising out of the exercise or discharge of a governmental function. MCL 691.1407(1); MSA 3.996(107)(1); Madison, supra, p 359. A governmental function has been defined as "any activity which is expressly or impliedly man
Plaintiffs also assert that the Wayne County Board of Canvassers can be found grossly negligent. We disagree. The gross-negligence exception to governmental immunity states that it applies to officers, employees, members, or volunteers of governmental agencies. MCL 691.1407(2); MSA 3.996(107)(2). The cardinal rule of statutory construction is to ascertain and give effect to the intention of the Legislature. Jennings, supra, p 135. The exception does not state that it applies to the governmental agencies themselves. Express mention in a statute of one thing implies the exclusion of other similar things. Id., p 142. Elsewhere, this Court held that an exception to governmental immunity applied to governmental agencies where the statute, the since-repealed version of the Emergency Medical Services Act, applied to "persons.” Malcolm v East Detroit, 437 Mich 132, 140; 468 NW2d 479 (1991). Here, had the Legislature intended to include governmental agencies in the gross negligence exception to governmental immunity, it easily could have used the appropriate, general language.
Finally, plaintiffs argue that Wayne County is vicariously liable. However, vicarious liability is derivative. Because the claim against defendant
In addition, a governmental agency can be held vicariously liable only when its officer, employee, or agent, acting during the course of employment and within the scope of authority, commits a tort while engaged in an activity that is nongovernmental or proprietary or that falls within a statutory exception. Ross, supra, p 625. Here, the only way Killeen can be held liable is if he was not acting within the scope of his authority. Id., p 592. But, if that is so, Wayne County would not be vicariously liable. Id., p 625.
The trial court’s grant of summary disposition is vacated with regard to defendant Killeen, and affirmed with regard to the other defendants. Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Concurring Opinion
(concurring). I agree with the holding of the majority but write separately to express my disagreement with its reluctance in applying the intentional tort exception to governmental immunity found in Marrocco v Randlett, 431 Mich 700; 433 NW2d 68 (1988). I appreciate that the clear, broad concept of absolute immunity is easier for the courts to apply. But, in balance, a remedy must be available to address an intentional use or misuse of governmental authority for a purpose not authorized by law. For that reason, I believe the Marrocco decision was not a mistake, and I apply its holding without reluctance.
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