JASON BAKER V MICHAEL COUCHMAN
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STATE OF MICHIGAN
COURT OF APPEALS
JASON BAKER,
FOR PUBLICATION
May 30, 2006
9:00 a.m.
Plaintiff-Appellee,
v
No. 264914
Livingston Circuit Court
LC No. 04-020847-CD
MICHAEL COUCHMAN,
Defendant-Appellant,
and
Official Reported Version
PINCKNEY COMMUNITY SCHOOLS,
Defendant.
Before: Smolenski, P.J., Whitbeck, C.J., and O'Connell, J.
O'CONNELL, J. (concurring in part and dissenting in part).
I concur with the lead opinion that it was within the scope of a superintendent's authority
"to express his concerns to plaintiff 's superiors, to the school board, and to the public in general
and even to petition these groups for plaintiff 's removal as" the school resource officer (SRO).
Ante, p ___. Additionally, I concur that "it was within the scope of defendant's authority [as
superintendent] to create appropriate boundaries on the nature and extent of plaintiff 's proactive
law enforcement activities while acting as SRO." Ante, p ___. However, I would hold that this
authority provides defendant with absolute immunity for every allegedly "wrongful" action
supporting plaintiff 's claim for tortious interference with business relations.1 Therefore, I
respectfully dissent.
1
The lead opinion states that plaintiff 's primary complaint is that "defendant 'intentionally,
maliciously and improperly interfered with and disrupted' his employment relationship with the
[Livingston County Sheriff 's Department (LCSD)] by interfering with his investigations,
threatening him with removal, and improperly influencing LCSD to remove him from the
position of SRO." Ante, p ___. Assuming, arguendo, that defendant did exactly what plaintiff
(continued…)
-1-
The primary shortcoming of the lead opinion is its overly narrow interpretation of the
term "scope of authority." By narrowly construing the term "scope of authority," the lead
opinion exposes all public officials to civil liability for an inartful statement or an alleged
wrongful decision. Any individual can now claim that a factual question exists about the public
official's "scope of authority," thereby avoiding summary disposition and subjecting that public
official to a lawsuit when, as in this case, one of the primary motivations of the lawsuit is
personal animosity or bias toward the public official. While I neither approve nor disapprove of
the superintendent's and the SRO's actions in this matter, rather than bring the business of the
public official to a standstill while frivolous matters are litigated, the law should, and does, grant
immunity to the public official for such matters.
Defendant receives "absolute" immunity if it was within his authority to protect his
students from what he perceived2 as an overzealous monitoring officer who routinely
overexerted his dual authority3 as school official and police officer in minor matters ranging
from stolen gym shorts to haphazard driving in the school parking lot. MCL 691.1407(5). In the
superintendent's opinion, plaintiff 's investigative fervor in fairly trivial matters criminalized the
students and disrupted the school's order and operations, requiring defendant to exercise his own,
concededly superior, administrative and disciplinary authority to truncate plaintiff 's
investigations and student interrogations. Unfortunately, neither plaintiff nor defendant learned
discretion, and defendant's posture toward plaintiff became adversarial, leading defendant to call
for plaintiff 's removal. Nevertheless, plaintiff has failed to demonstrate any tortious incident
that falls outside the scope of defendant's superior authority. Therefore, I am of the opinion that
(…continued)
alleges, I would hold that (a) defendant has done nothing improper and (b) defendant, pursuant to
MCL 691.1407(5), has absolute immunity for his actions.
2
Whether his perception is correct or wrong, defendant is entitled to immunity if monitoring the
SRO is within the scope of defendant's authority.
3
The lead opinion concedes that the SRO has a dual employment role because the SRO works
for and at the direction of the superintendent (while working for the school district, the defendant
is plaintiff 's supervisor) and simultaneously for and at the direction of the sheriff 's department.
This concession, if true, renders plaintiff 's lawsuit meritless. To prosecute a cause of action for
intentional interference with a business relationship, the law requires the intervention of a third
party. An employee's supervisor is not a third party to the employment relationship, but a
representative agent of the employer, so a supervisor cannot be sued for intentional interference
with the employee's business relationship. If this were the case, each time a dual employment
supervisor fired an employee, the supervisor would be subject to a similarly meritless lawsuit.
The majority's holding creates an untenable situation for all dual and contract employers by
leaving supervisors open to suit for taking any disciplinary action that could "interfere" with an
employee's "other" business relationship.
Imagine the everyday situation in which a Manpower employee, working for General Motors
Corporation (GM), is dismissed from service by his GM supervisor. The majority's holding
would allow the employee to sue the supervisor for intentional interference with the employee's
business relationship with Manpower. Our courts have never extended this tort so far beyond its
original, legitimate purpose.
-2-
the trial court incorrectly ruled that plaintiff 's disgruntlement with his employment situation
provides him with legal recourse against defendant.
Because of the nature of the case, a full review of the record is warranted. The record
reflects that plaintiff repeatedly pursued minor school incidents with vigor, often seeking to
arrest, write citations, or launch lengthy investigations rather than defer to the school's
administration for routine admonition and correction. For example, plaintiff 's relationship with
the school began to break down when plaintiff, who was investigating a theft that had occurred
over the summer, launched an investigation into alleged fraud and embezzlement by school staff
and demanded to see various school records. Defendant balked at bringing his administration to
a standstill to pacify plaintiff 's investigative curiosity, and the prosecutor's office eventually
directed plaintiff to turn the matter over to a disinterested detective at the sheriff 's office.
Nothing apparently came of the matter except, of course, an incalculable loss of respect for
plaintiff 's judgment among the school's staff and defendant.
Soon afterward, plaintiff participated in an investigation of a sexual assault involving
some of the school's students. Later, plaintiff also directed undercover investigations into drug
activity. These problems garnered negative press coverage for the school, but plaintiff readily
provided the media with commentary. Defendant did not interfere with these investigations, but
he vocalized displeasure that plaintiff apparently relished his role as commentator and
intentionally fed the media frenzy. He also voiced his ire at plaintiff 's indiscretion to plaintiff 's
superiors.
The following summer, members of the sheriff 's department and school
administrators met regarding plaintiff 's future at the school. Defendant told the department that
he thought the relationship was irreconcilable.
Plaintiff returned the following school year, but defendant intervened in some of his
investigations and entirely preempted others. One might presume this intervention to be
improper until one learns that the investigations involved matters like stolen gym shorts and
physical altercations or threats (which plaintiff categorized as "assaults") between students.
Moreover, the intervention initially amounted to nothing more than defendant discouraging
plaintiff from pursuing the matter, as in the "assault" cases, or defendant telling plaintiff to stop
his investigation, as in the matter of the gym shorts.4 In each of these cases, plaintiff provided
his LCSD supervisor with reports of defendant's behavior, but the sheriff 's department never
tried to supersede defendant's authority. At this point, the evidence demonstrates that defendant
did not interfere at all with plaintiff 's most serious and damaging investigations, but instead took
4
Plaintiff argues that defendant primarily interfered with his investigations by ordering him to
discontinue them or forbidding him from talking to various students. This argument selfdestructs. Either defendant had the authority to call off plaintiff 's investigations (and, implicitly,
the authority to limit them), or plaintiff yielded to defendant's requests even though defendant
could not force him to stop investigating. The first option means that all of plaintiff 's
investigations fell within defendant's scope of authority, and that defendant is absolutely
immune. The second option means that plaintiff generally acquiesced to defendant's requests,
and that he cannot now claim that they improperly interfered with his job.
-3-
reasonable preemptive measures only when an investigation inappropriately intensified or veered
into areas under defendant's direct authority.
Plaintiff again overreacted to an incident of careless driving in the school parking lot,
however, and the parents of the accused student driver understandably recoiled at plaintiff 's
typical zeal and overbearing demeanor. For example, plaintiff threatened their son with charges
of reckless driving and malicious destruction of property and warned the parents that if they did
not work something out with the victim's parents, he would turn the case over to the local
prosecutor's office. The parents met with defendant, who personally drove them to the sheriff 's
office to complain about plaintiff 's investigative practices. In the meantime, plaintiff had
tracked down the young driver and pressed him to produce his driver's license, registration, and
proof of insurance. The student explained that they had been provided to an assistant principal.
Discontented with that avenue of administration and resolution, plaintiff went to the assistant
principal and demanded the documents. The assistant principal informed plaintiff that defendant
had the documentation forwarded directly to the parents of the other student involved in the
incident. The assistant principal further explained that defendant had directed her to withhold
the documents from plaintiff and instruct plaintiff not to question the student further. Plaintiff
again complained to his supervisor that defendant was obstructing his investigations, and the
supervisor again removed plaintiff from the case. Plaintiff was reassigned to road patrol a few
months later.
Even though defendant admittedly interfered with plaintiff 's authority, plaintiff still fails
to demonstrate how the interference fell outside the scope of defendant's authority. A
superintendent's role includes any act taken as chief administrator and disciplinarian in the
school district, even in school districts that decide to engage monitoring police officers for
additional manpower, surveillance, and protection. Superintendents are the highest-level
executives of school districts, so they are entitled to absolute immunity for actions they take
pursuant to that authority. Nalepa v Plymouth-Canton Community School Dist, 207 Mich App
580, 590-591; 525 NW2d 897 (1994), result only aff 'd 450 Mich 934 (1995); MCL 691.1407(5).
The absolute immunity extended to highest-level executives does not contain an intentional-tort
or "malevolent-heart" exception, and the executive's motivation for acting is irrelevant to the
analysis. American Transmissions, Inc v Attorney General, 454 Mich 135, 143; 560 NW2d 50
(1997). Instead, whether an action falls within an executive's scope of authority depends on
factors such as "'the nature of the specific acts alleged, the position held by the official alleged to
have performed the acts, the charter, ordinances, or other local law defining the official's
authority, and the structure and allocation of powers in the particular level of government.'" Id.
at 141, quoting Marrocco v Randlett, 431 Mich 700, 711; 433 NW2d 68 (1988).
Overseeing the handling of minor criminal incidents or civil unrest on school grounds is
always within the scope of a superintendent's authority. Otherwise, a principal or superintendent
lacks the authority to break up a fistfight or detect and punish the theft of a yo-yo. The school
would always resort to calling in the police to preserve the crime scene, conduct an investigation,
and cart away the culprits. The structure and allocation of powers in the school placed defendant
as the primary authority in managing these school affairs. As plaintiff 's superior in this regard,
defendant was acting within his authority to stop plaintiff 's investigation into the automobile
incident and the missing shorts, just as plaintiff was within his authority to resort to his
supervisor for further instruction. Until plaintiff received a contrary direction regarding a
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criminal matter from the sheriff 's office, the prosecutor's office, or a judge, his authority to act
was subject to, and limited by, defendant.
Although the last incident undoubtedly interfered with plaintiff 's investigation, the
majority concedes that "it was within the scope of defendant's authority to create appropriate
boundaries on the nature and extent of plaintiff 's proactive law enforcement activities . . . ."
Ante, p ___. It stands to reason that withholding the documentation from plaintiff was within the
scope of defendant's discretionary authority to set those boundaries. Every other time defendant
instructed plaintiff to stop an investigation or refrain from interrogating a student, plaintiff
complied. Because defendant permissibly terminated plaintiff 's investigation into a school
matter, turning the documents over to him would be unnecessary and counterproductive.
Rather than rely entirely on defendant's control of plaintiff 's investigation, the lead
opinion turns to defendant's decision to drive the unhappy parents to the sheriff 's department to
lodge their complaints directly with plaintiff 's supervisors. As an initial matter, this action, in
context, was an effort to control the school's personnel and institute correct remedial procedures
for the angry parents. Therefore, I would find that this act falls within defendant's executive
authority. Assuming, arguendo, that driving angry parents to a sheriff 's station to register a
complaint falls outside the scope of a superintendent's authority, there was nothing tortious about
it.
To sustain a claim for tortious interference with contract or business relations, a plaintiff
must demonstrate a wrongful act, which means that the act must be wrongful per se or otherwise
malicious and unjustified. See BPS Clinical Laboratories v Blue Cross & Blue Shield of
Michigan (On Remand), 217 Mich App 687, 698-699; 552 NW2d 919 (1996). If the interference
results from legitimate business reasons or stems from a privileged attempt to persuade others of
the interferer's position in a dispute, then no cause of action for tortious interference will lie. Id.;
Lakeshore Community Hosp, Inc v Perry, 212 Mich App 396, 401-404; 538 NW2d 24 (1995).
Moreover, the interferer in the business relationship must be a stranger to the established
relationship. Reed v Michigan Metro Girl Scout Council, 201 Mich App 10, 13; 506 NW2d 231
(1993).5 In this case, removing undesirable personnel was part of defendant's job, so the desire
to remove plaintiff from the district was a legitimate justification for his actions, not a malicious
design that rendered his acts wrongful. Furthermore, plaintiff is essentially complaining that
defendant interfered with his business relationship with the school district, not his relationship
with the sheriff 's department. Plaintiff has not demonstrated any adverse effect defendant's
actions had on his standing in the department;6 instead, all his claims relate to the benefits he no
5
I note that defendant is not only closer to the business relationship than a "stranger," he acted as
plaintiff's supervisor while plaintiff was a member of the school district's staff.
6
Plaintiff has not asserted that he lost any wages or ordinary employment benefits related to his
job as a deputy sheriff for Livingston County. Plaintiff is apparently still employed with the
LCSD and performs investigative and policing functions similar to those he performed before the
department reassigned him. Nevertheless, plaintiff complains that defendant, his superior,
interfered with his "right" to work in one of defendant's schools by acting on his dissatisfaction
(continued…)
-5-
longer enjoys because of his failed relationship with the district. Under the circumstances,
defendant acted on the district's behalf to terminate its relationship with plaintiff, and in cases of
such a direct relationship, we should leave the parties to negotiate their own contract remedies
rather than assign them rights and responsibilities through tort.7 See id.
Addressing the concurrence, if I have belabored my rhetoric, it reflects my frustration
with what should be a simple case. I have presented the issue from every viewpoint imaginable,
and used expressive language only because I find the correct answer obvious and the contrary
result and precedent alarming. If Chief Judge Whitbeck thinks that I have overstated the issue,
perhaps he should consider the following hypothetical "others" that would now have a
cognizable claim under the majority's holding.
In a controversy over union fees, a teacher openly and carelessly airs his dispute with the
media and his students. Should the superintendent stand mum or candidly respond to the media's
questions with an equally slanted perspective? Should the superintendent voice disagreement at
a school board meeting and order the teacher to stop venting to his students and the press?
Should he consider his potential individual liability for possibly interfering with the teacher's
business relations?
An individual appears, without invitation, at a superintendent's private personnel meeting
and will not leave. Should the superintendent avoid personal liability by allowing the individual
to stay and influence the meeting, or remove the individual with force if necessary? What if the
individual is a school board member?
A superintendent takes a controversial opposing view on the assignment of a proposed
physical education teacher about whom the superintendent has received disparaging
correspondence from an acknowledged authority. The teacher seeks to arbitrate her denial of the
assignment and wins. A successive appeal is initiated and then dropped, and the uninformed
public begins grumbling about the expense and futility of the school's seemingly baseless
stubbornness. Should the superintendent stand mute and face the unjustified wrath of a confused
public, or should she read the information received into the record at a school board meeting and
face personal liability dependent only on whether making slanderous statements and invading
someone's privacy falls within the scope of her authority?
A superintendent discovers a spiritually uplifting movie that contains a particularly
shocking scene in which a young amputee fails in a suicide attempt, only to find later that he has
(…continued)
with plaintiff's job performance. I am surprised that this allegation's obvious paradox is not selfevident.
7
This case is akin to a situation I recently addressed in Neill v Delphi Automative Systems Corp,
unpublished opinion per curium of the Court of Appeals, issued January 27, 2004 (Docket No.
243834), in which the panel unanimously held that terminated contract employees may not sue
their de facto employers in tort for interfering with their business relationships with the contract
employer. Because the supervising employers must retain some authority to terminate the
assigned workers, the employers are too involved to be considered third parties to the business
relationship. Id.
-6-
value beyond his physical form. The superintendent personally oversees the distribution of the
movie to his district's second graders, one of whom has severe issues regarding his own selfworth. Should the superintendent pull the student from the class, cancel the showing, or show
the film to all the children and risk personal liability on a wrongful death suit if the second grader
successfully commits suicide in the manner shown by the film?
These are not easy situations for school officials,8 and all the options for resolution have
real ramifications, but the majority approach makes the judiciary, not the voters, the final arbiters
of whether an official correctly responded to a politically charged question. The majority tries to
pull this case out of the political mire and elevate it to the level of a philosophical discussion
over whether interfering with a police officer is arguably wrongful in the abstract. This case is
not a purely academic exercise about whether a superintendent may theoretically prevent a police
officer from investigating a crime. In this, and hundreds of other real instances of police officers
in schools, the question of who authorizes and controls everyday investigation, interrogation, and
monitoring of students is unsettled. Schools, not police officers, are provided a tremendous
measure of authority because of their responsibilities in loco parentis, but serious questions
develop when police officers act as school officials pursuant to this expansive authority without
any accountability to the school authorities from which the authority derives.9
8
My examples of situations that arguably fall outside the scope of authority may appear fanciful,
so I provide the following citations to the very real cases on which they are based. In each case,
the superintendent or similar official was found totally immune from liability because the
personal action was found to fit generally within the scope of their authority, notwithstanding the
arguably "wrongful" nature of each act. Sullivan v River Valley School Bd, unpublished opinion
per curiam of the Court of Appeals, issued July, 11, 1997 (Docket No. 181913) (tortious
interference with business relations); Planutis v Hilling, unpublished opinion per curiam of the
Court of Appeals, issued August, 29, 2000 (Docket No. 219972) (forcible ejection); Graziano v
Hawkins, unpublished opinion per curiam of the Court of Appeals, issued November, 15, 2005
(Docket No. 255030) (invasion of privacy); Nalepa, supra (suicide movie).
9
In response to my concurring colleague's insinuation that I do not believe police officers should
investigate crimes in schools, I defer to the reader's judgment whether such a rhetorical and
unfounded suggestion can be found in this opinion. What bothers me is not police activity in
schools, but the highly potent marriage of police power with power in loco parentis without
discernible accountability to the school in which those powers are used. Add to this troublesome
concoction the judiciary's willingness to enforce the unbridled exercise of that power against a
school official trying to regain control of it, and the results are disastrous. Holding a
superintendent civilly liable for money damages when he acts in the place of the student's parents
to protect students from unjustified acts sets an untenable precedent indeed. According to the
majority's holding a student's parents would equally be liable to plaintiff if they insisted that he
stop questioning their child. In fact, those issues should be easier to resolve without the legal
complications of immunity.
If we are hunting down what lurks beneath the rhetoric, should I presume that Chief
Judge Whitbeck's failure to acknowledge defendant's role in loco parentis means that we should
disavow the doctrine entirely? If so, we should hold school administrators to the identical
standard to which we hold patrol officers and judges, allowing discipline and dispute resolution
(continued…)
-7-
These sticky issues are not made easier by selectively divorcing a superintendent's
actions from his or her public office or by making blanket statements about what is "wrongful"
and therefore subject to a jury's determination of personal liability. The fact that defendant took
it upon himself to act or that his actions were arguably improper does not remove the actions
from the scope of his authority. The plain language of the statute and the traditional approach to
absolute immunity suggest that an expansive application of the phrase "scope of . . . executive
authority" is appropriate. MCL 691.1407(5). Applying a narrow view of an official's scope has
historically been perceived as a threat to the proper application of absolute immunity.
"The decisions have, indeed, always imposed as a limitation upon the
immunity that the official's act must have been within the scope of his powers;
and it can be argued that official powers, since they exist only for the public good,
never cover occasions where the public good is not their aim, and hence that to
exercise a power dishonestly is necessarily to overstep its bounds. A moment's
reflection shows, however, that that cannot be the meaning of the limitation
without defeating the whole doctrine. What is meant by saying that the officer
must be acting within his power cannot be more than that the occasion must be
such as would have justified the act, if he had been using his power for any of the
purposes on whose account it was vested in him." [Barr v Matteo, 360 US 564,
572; 79 S Ct 1335; 3 L Ed 2d 1434 (1959) (opinion of Harlan, J.), quoting Judge
Learned Hand's opinion in Gregoire v Biddle, 177 F2d 579, 581 (CA 2, 1949).]
In other words, while the lead opinion diligently searches for a question of fact about
defendant's true motives, the issue of scope is whether the use of power would have been
justified assuming that defendant's motives were pristine. This presumption aligns with the
understanding that issues regarding absolute immunity should be discerned by a judge at the
outset of litigation. Mitchell v Forsyth, 472 US 511, 526; 105 S Ct 2806; 86 L Ed 2d 411 (1985).
Without early intervention, the immunity is "effectively lost," id., so taking preemptive action
preserves the official from the rigors of trial and civil scrutiny, which alone threaten to
"'seriously cripple the proper and effective administration of public affairs as entrusted to the
(…continued)
only under the strictures of full judicial process. I note that plaintiff did not feel bound by such
strictures when he threatened to press criminal charges to influence the resolution of a civil
matter. The public grants administrators latitude in managing student issues that arise, and
plaintiff took full advantage of that latitude. That additional power sprang from his position with
the school, not his badge, and it is ultimately traceable to the highest school executive,
defendant. With defendant's authority to adjust process to what is due and institute appropriate
remedial and disciplinary measures comes the authority to limit the implementation of
investigative and punitive resources. The lead and concurring opinions strip the school's
administration of these tools, but do not eliminate them. Instead, they grant these powers to an
assigned deputy and back his actions with the full power of the gavel, even when those actions
contravene the will of the disarmed administration. This case further erodes the already
diminished authority of our educators, who can ill afford to take action that would expose them
to individual liability. We should not discourage our educators from doing the job the public has
hired them to do.
-8-
executive branch . . . .'" Barr, supra at 570 (opinion of Harlan, J.; emphasis added), quoting
Spalding v Vilas, 161 US 483, 498; 16 S Ct 631; 40 L Ed 780 (1896).
"The justification for doing so is that it is impossible to know whether the
claim is well founded until the case has been tried, and that to submit all officials,
the innocent as well as the guilty, to the burden of a trial and to the inevitable
danger of its outcome, would dampen the ardor of all but the most resolute, or the
most irresponsible, in the unflinching discharge of their duties. Again and again
the public interest calls for action which may turn out to be founded on a mistake,
in the face of which an official may later find himself hard put to it to satisfy a
jury of his good faith. There must indeed be means of punishing public officers
who have been truant to their duties; but that is quite another matter from
exposing such as have been honestly mistaken to suit by anyone who has suffered
from their errors. As is so often the case, the answer must be found in a balance
between the evils inevitable in either alternative. In this instance it has been
thought in the end better to leave unredressed the wrongs done by dishonest
officers than to subject those who try to do their duty to the constant dread of
retaliation." [Barr, supra at 571-572, quoting Gregoire, supra at 581.]
The concurring opinion ignores this presumption of good faith in nonconstitutional
situations and rejects any notion that the law should preserve defendant from trial. This view
runs contrary to the intention clearly and unambiguously expressed in the statute. The
concurring opinion's interpretation, if adopted, would open widely the courthouse doors to those
who would seek to influence public affairs through the threat and abuse of litigation.
This case sets an abominable precedent because it blurs the previously unmistakable lines
marking the boundaries of a superintendent's personal liability. Now superintendents must
second-guess how their administrative decisions may peripherally cause damage to subordinates
and third parties. I disagree with any decision that requires superintendents to protect themselves
by placing the concerns of others over the interests of the children in their charge. I would
reverse.10
/s/ Peter D. O'Connell
10
The lead opinion fails to state with any degree of certainty what business relationship
defendant has interfered with. The only interference allegations by plaintiff concern interference
with the business relationship at one of defendant's schools. Because defendant is the head of the
school district, it is impossible for him to be a third party who interferes with the school district's
business. Neither plaintiff nor the majority takes the bold stance that the incidents involving
defendant's staff, defendant's students, and the district's property were none of the district's
business. Naturally, plaintiff and his interaction with students were the district's business, and
the tort of interference with a business relationship does not prevent the district from tending to
its own business.
-9-
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