JOHN KENNETH BENNETT V DETROIT POLICE CHIEF
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN KENNETH BENNETT,
UNPUBLISHED
December 19, 2006
APPROVED FOR
PUBLICATION
February 20, 2007
9:05 a.m.
Plaintiff-Appellee/
Cross-Appellant,
v
No. 262124
Wayne Circuit Court
LC No. 03-334432-NZ
DETROIT POLICE CHIEF and CITY OF
DETROIT,
Defendants-Appellants,
and
MAYOR OF DETROIT,
Defendant/Cross-Appellee.
JOHN KENNETH BENNETT,
Plaintiff-Appellee,
v
No. 262188
Wayne Circuit Court
LC No. 03-334432-NZ
DETROIT POLICE CHIEF and CITY OF
DETROIT,
Defendants-Appellants,
and
MAYOR OF DETROIT,
Official Reported Version
Defendant.
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Before: Whitbeck, C.J., and Saad and Schuette, JJ.
PER CURIAM.
These consolidated appeals involve the suspension of plaintiff John Kenneth Bennett, a
city of Detroit police officer, and his complaint against the city of Detroit, Chief of Police Jerry
Oliver (Chief Oliver), and the Mayor of the city of Detroit, Kwame Kilpatrick (Mayor
Kilpatrick). The trial court granted summary disposition to Mayor Kilpatrick. However, the
trial court denied summary disposition to the city of Detroit and Chief Oliver. The legal issues
presented to this Court involve: (1) whether governmental immunity extends to Chief Oliver,
under MCL 691.1407(5), and to the city of Detroit, under MCL 691.1407(1); and (2) whether
this case involves a genuine issue of material fact with respect to Mayor Kilpatrick's involvement
in plaintiff 's suspension. We reverse the trial court's order denying Chief Oliver and the city of
Detroit's motion for summary disposition based on governmental immunity. However, we affirm
the trial court's order granting Mayor Kilpatrick's motion for summary disposition.
I. FACTS
In November 2002, plaintiff created and registered the internet website
www.firejerryo.com. Plaintiff claims that the purpose of the website was to "provide a forum for
himself and others to express their views on matters of public concern."
The website would often feature articles and editorial reviews that were critical of the
new chief of police, Chief Oliver. However, at one point, Chief Oliver publicly expressed
appreciation and admiration for the website, stating that "[i]t is a very well done site . . . I wish I
had that kind of skill working on the official Web site of the police department." The website
continued to report negative information about Chief Oliver, Mayor Kilpatrick, and the city of
Detroit. The website also provided updates on news concerning the Detroit Police Department,
as well as a venue for anyone who accessed the website to log on and share their opinion in one
of the website's various blogs.
On July 9, 2003, Chief Oliver suspended plaintiff 's duty status with pay, for conduct
unbecoming an officer. The alleged conduct was operating a website in violation of the rules
and regulations of the Detroit Police Department. On September 18, 2003, Chief Oliver
recommended the suspension of plaintiff 's duty status without pay to the City of Detroit Board
of Police Commissioners (the Board). The Board agreed with Chief Oliver's recommendation,
determining that plaintiff 's misconduct prevented him from continuing his duties as a police
officer.
Plaintiff appealed the Board's decision to grievance arbitration, which upheld the Board's
decision to suspend plaintiff 's duty status without pay. In October 2003, plaintiff filed a onecount complaint in the Wayne Circuit Court alleging wrongful discharge for the exercise of his
constitutionally guaranteed right of free speech in violation of Michigan public policy. In
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August 2004, defendants filed a motion for summary disposition based in part on governmental
immunity and in part on the contention that Michigan law precludes damage claims against
municipalities for violations of the Michigan Constitution. That motion was denied with respect
to Chief Oliver and the city of Detroit, but was granted with respect to Mayor Kilpatrick. In
November 2004, plaintiff filed his own motion for partial summary disposition, arguing that
there is no genuine issue regarding any material fact and that his claim can be decided as a
matter of law. That motion was also denied.
Chief Oliver and the city of Detroit now appeal as of right the denial of their motion for
summary disposition on grounds of governmental immunity. Plaintiff cross-appeals, asking this
Court to reverse the trial court's denial of his motion for partial summary disposition and
granting defendants' motion with respect to Mayor Kilpatrick. Defendants also appeal by leave
granted the trial court's denial of their motion for dismissal based on the argument that there can
be no Michigan Constitutional monetary damage claims against a municipality and its
employees. All appeals have been consolidated.
II. GOVERNMENTAL IMMUNITY
Chief Oliver and the city of Detroit argue that the trial court erred when it denied their
motion for summary disposition because they were entitled to governmental immunity. We
agree.
A. Standard of Review
This Court reviews a trial court's order on a motion for summary disposition de novo.
Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). Further, the "applicability of
governmental immunity is a question of law that is reviewed de novo on appeal." Cain v
Lansing Housing Comm, 235 Mich App 566, 568; 599 NW2d 516 (1999).
B. Analysis1
1
As an initial matter, plaintiff argues that this Court does not have jurisdiction over the instant
action because the trial court's order was not a "final order" appealable as of right under MCR
7.203(A)(1). However, plaintiff is precluded from relitigating this issue. Plaintiff filed a motion
for peremptory reversal on May 16, 2005, and a motion to dismiss on May 24, 2005, based on
the same jurisdictional argument. On June 28, 2005, this Court denied both plaintiff's motion for
peremptory reversal and plaintiff's motion to dismiss. "Under the doctrine of law of the case, an
appellate court's decision concerning a particular issue binds courts of equal or subordinate
jurisdiction during subsequent proceedings in the same case." McNees v Cedar Springs
Stamping Co (After Remand), 219 Mich App 217, 221-222; 555 NW2d 481 (1996). Moreover,
(continued…)
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(1) Chief Oliver's Governmental Immunity
Michigan law provides that "[a] judge, a legislator, and the elective or highest appointive
executive official of all levels of government are immune from tort liability for injuries to
persons or damages to property if he or she is acting within the scope of his or her judicial,
legislative, or executive authority." MCL 691.1407(5). Plaintiff argues that Chief Oliver not
only acted outside the scope of his authority in firing plaintiff, but that he also violated the law.
We disagree. In making his claim, plaintiff relies heavily on our Supreme Court's decision in
Marrocco v Randlett, 431 Mich 700; 433 NW2d 68 (1988). In that opinion, our Supreme Court
held that
the highest executive officials of local government are not immune from tort
liability for acts not within their executive authority. The determination whether
particular acts are within their authority depends on a number of factors,
including 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 710-711.]
In Marrocco, the plaintiff was a former city attorney who alleged several instances of
misconduct directed toward him by the mayor and city treasurer. Id. at 702-706. For instance,
he alleged that the mayor used his influence to interfere with his reinstatement as city attorney
after a leave of absence. Id. at 704. In addition, the plaintiff alleged several other occasions
when the mayor and the treasurer put pressure on other governmental offices to fire or otherwise
harass the plaintiff. Id. at 705-706. The plaintiff also alleged that the treasurer harassed him by
raising the tax assessment on his home. Id. at 706. He was forced to sell the residence, and
subsequently the tax was reduced. Id.
In reviewing the facts before it, our Supreme Court noted 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. at 707-708 (citations omitted). The Court went on to
analyze the city ordinance at issue and determined that the mayor did not have any authority
whatsoever to interfere with the plaintiff 's reinstatement as city attorney following his leave of
absence. Id. at 709-710. Concerning the other allegations, the Court noted that there was not
enough factual development to determine whether the mayor and treasurer's acts were within the
scope of their executive authority. Id. at 710. The case was remanded to the trial court to
determine those issues. Id. at 711.
(…continued)
"[a] legal question may not be decided differently where the facts remain materially the same."
Id. at 222. This Court's order denying plaintiff's motion to dismiss based on the jurisdiction of
this Court controls the outcome of this issue on appeal. The facts have not changed, and
plaintiff's legal question may not now be decided differently.
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Plaintiff insists that the facts of the instant action are analogous to those of Marrocco and
that Chief Oliver was acting outside the scope of his authority as chief of police when he
suspended plaintiff. However, we believe that Chief Oliver was acting within the scope of his
express authority, and, therefore, the instant action is distinguishable from Marrocco.
The plaintiff in Marrocco alleged several instances of harassment by the public official
defendants. Here, plaintiff admits that prior to his suspension, he was never contacted about the
website. In fact, Gary Brown, the former Deputy Chief of Police, stated in his affidavit that
Chief Oliver "checked the website frequently," "found some of the contents humorous," and that
the website was "generally only briefly discussed" by the department. Plaintiff contends that the
Court in Marrocco considered the context and circumstances surrounding the defendants'
inappropriate actions in that case. But the Marrocco Court did no such thing. Rather, it turned
to the language of the local ordinance and, on the basis of the text, determined that the
defendants simply did not act within their executive authority. Marrocco, supra at 708-710.
Here, there are three sources of local law that expressly grant Chief Oliver the authority
to suspend plaintiff: the Detroit City Charter, the Detroit Police Department rules and
regulations, and the collective bargaining agreement between the city of Detroit and the Detroit
Police Officers' Association. All three contain provisions expressly stating that the chief of
police has the authority to suspend police officers from duty.
Article 7, Chapter 11, § 7-1106 of the Detroit City Charter states, in relevant part: "The
chief of police is the chief executive officer of the police department and shall . . . [h]ire,
promote, commend, transfer, and discipline employees of the department; have authority to
suspend and discharge employees of the department under section 7-1107. . . ."
Section 7-1107 then states that "[t]he chief of police may discharge or indefinitely
suspend any employee for a major offense." While it does not define "a major offense," it does
state that the chief of police, along with the board, "shall adopt a manual of rules . . . [which]
shall define categories of major and minor offenses and shall set forth the maximum and
minimum penalties for each offense."2
A second source, the Detroit Police Department manual, states:
When deemed necessary for the preservation of order or efficiency, a
supervisory officer may suspend any subordinate from duty prior to disciplinary
2
Further, the manual provides a list of minor violations that may be heard at a Commander's
Action, which means violations under which "all commanding officers are authorized to conduct
disciplinary proceedings . . . . For the purpose of this directive, a commanding officer is defined
as any member holding the rank of inspector or above."
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action or Trial Board . . . . Suspensions prior to disciplinary action are strictly for
the purpose of preservation of order or efficiency of the department, and are not
considered, nor are they to be used, as an instrument of discipline.
The Police Department manual also states that "[p]rior to any administrative hearings, the chief
of police may order a member charged with a major offense suspended without pay."
The third source of Chief Oliver's authority is outlined in the collective bargaining
agreement between the city of Detroit and the Detroit Police Officers' Association. That
agreement expressly grants the chief of police, as a department head, the authority to suspend an
officer for just cause.
Therefore, we conclude that Chief Oliver was entitled to governmental immunity from
plaintiff 's tort claim, and the trial court erred in denying his motion for summary disposition.
(2) City of Detroit's Governmental Immunity
Our Supreme Court has held that "[a]bsent a statutory exception, a governmental agency
is immune from tort liability when it exercises or discharges a governmental function." Maskery
v Univ of Michigan Bd of Regents, 468 Mich 609, 613; 664 NW2d 165 (2003), citing MCL
691.1407(1). "A governmental function is 'an activity that is expressly or impliedly mandated or
authorized by constitution, statute, local charter or ordinance, or other law.'" Id., quoting MCL
691.1401(f).
Plaintiff 's argument that the city of Detroit was not engaged in exercising a governmental
function relies solely on the assumption that Chief Oliver was not engaged in exercising a
governmental function when he suspended plaintiff. However, as previously discussed, Chief
Oliver exercised a governmental function when he suspended plaintiff.
Plaintiff asserts that under Cranford v Wayne Co Sheriff, unpublished opinion per curiam
of the Court of Appeals, issued May 25, 2001 (Docket No. 218859), a governmental agency is
not entitled to governmental immunity if its employees acted outside the scope of their authority.
However, Cranford is an unpublished case; therefore, it is not binding on this Court. MCR
7.215(C)(1); Beyer v Verizon North, Inc, 270 Mich App 424, 431; 715 NW2d 328 (2006).
Further, Cranford is distinguishable from the instant action.
As defendants correctly assert—and plaintiff admits—a city's operation of a police
department is a governmental function. Without more, plaintiff simply does not have a cause of
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action that will survive defendant city of Detroit's governmental immunity.3 Therefore, we
conclude that the city of Detroit was entitled to governmental immunity from plaintiff 's tort
claim, and the trial court erred in denying its motion for summary disposition.
III. NO GENUINE ISSUE OF MATERIAL FACT AS TO MAYOR KILPATRICK'S
INVOLVEMENT IN PLAINTIFF'S SUSPENSION
Plaintiff contends that the trial court erred in granting summary disposition to Mayor
Kilpatrick on the ground that plaintiff failed to show a genuine issue of material fact under MCR
2.116(C)(10). We disagree.
A. Standard of Review
This Court reviews a trial court's order on a motion for summary disposition de novo.
Beaudrie, supra at 129. When deciding a motion for summary disposition, a court must consider
all evidence submitted in the light most favorable to the nonmoving party, Corley v Detroit Bd of
Ed, 470 Mich 274, 278; 681 NW2d 342 (2004), and all reasonable inferences are to be drawn in
favor of the nonmovant, Scalise v Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d 858
(2005).
"Where the proffered evidence fails to establish a genuine issue regarding any material
fact, the moving party is entitled to judgment as a matter of law." Maiden v Rozwood, 461 Mich
109, 120; 597 NW2d 817 (1999). A genuine issue of material fact exists when the record leaves
open an issue on which reasonable minds could differ. Allstate Ins Co v Dep't of Mgt & Budget,
259 Mich App 705, 709-710; 675 NW2d 857 (2003).
B. Analysis
A motion under MCR 2.116(C)(10) tests the factual sufficiency of a complaint. Maiden,
supra at 120.
3
We note that even if we were to find that defendants are not entitled to governmental immunity,
we would, nonetheless, reverse the trial court's order denying defendants' motion for summary
disposition. No matter how plaintiff attempts to couch his complaint as a claim for a violation of
public policy as sounding in the Michigan Constitution, it is evident that his grievances, and thus
his requested relief, are based on an alleged violation of the Michigan Constitution itself. And
our Supreme Court has held that there is no cause of action for damages against entities other
than the state for a violation of state constitutional rights. Jones v Powell, 462 Mich 329, 335337; 612 NW2d 423 (2000). Therefore, as defendants point out, there can be no claim for
damages for a violation of the Michigan Constitution.
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In evaluating a motion for summary disposition brought under this
subsection, a trial court considers affidavits, pleadings, depositions, admissions,
and other evidence submitted by the parties . . . in the light most favorable to the
party opposing the motion. Where the proffered evidence fails to establish a
genuine issue regarding any material fact, the moving party is entitled to
judgment as a matter of law. [Maiden, supra at 120, citing MCR 2.116(C)(10)
and (G)(4).]
Mere conclusory allegations that are devoid of detail are insufficient to demonstrate that there is
a genuine issue of material fact for trial. Quinto v Cross & Peters Co, 451 Mich 358, 371-372;
547 NW2d 314 (1996).
"A reviewing court may not employ a standard citing the mere possibility that the claim
might be supported by evidence produced at trial. A mere promise is insufficient under our court
rules." Maiden, supra at 121. Here, plaintiff simply did not offer anything more than conjecture
regarding Mayor Kilpatrick's involvement in his suspension, as indicated by this passage from
the plaintiff 's appellate brief, which does nothing more than speculate: "It defies reason to
suggest that the Mayor did not find Bennett's very public criticism of his administration on the
website to be very annoying . . . [or] to suggest that Oliver would make the unprecedented move
of appearing at midnight roll-call . . . to suspend Bennett without the prior direction and approval
of the Mayor."
While it is true that the trial court must "consider[] affidavits, pleadings, depositions,
admissions, and other evidence submitted by the parties," the nonmoving party may not rely on
mere allegations or denials, but must set forth specific facts that show that a genuine issue of
material fact exists. Maiden, supra at 120. While plaintiff here alleged improper conduct on the
Mayor's part, plaintiff set forth no specific facts that show a genuine issue of material fact.
In addition, plaintiff relied on an affidavit from former Deputy Chief Brown, which
explains that as head of Internal Affairs, he was called out three or four times a week in the
middle of the night. Brown also stated that Chief Oliver had three young children and generally
did not travel to the precincts in the evenings. Brown further declared that the only time Chief
Oliver ever called Brown out in the middle of the night involved an order from the Mayor.
However, the affidavit itself qualifies these statements:
Based on my knowledge of the Detroit Police Department and my
personal working relationship with Chief Oliver, the only thing that would
prompt the Chief to show up at midnight to suspend Officer Bennett would be an
urgent sounding telephone call from the Mayor himself or from Christine Beatty.
As defendants correctly point out, Brown is attesting here to nothing more than a theory
of what could be the truth. The affidavit is unsupported by fact and amounts to mere conjecture.
In Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App 482; 502 NW2d 742 (1993),
this Court acknowledged that "[c]ircumstantial evidence may be sufficient to establish a case.
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However, parties opposing a motion for summary disposition must present more than conjecture
and speculation to meet their burden of providing evidentiary proof establishing a genuine issue
of material fact." Id. at 486 (internal citations omitted). This Court went on to define
"conjecture" as "simply an explanation consistent with known facts or conditions, but not
deducible from them as a reasonable inference." Id.
Plaintiff 's evidence in this case, with respect to Mayor Kilpatrick's involvement in his
suspension, is merely one possible explanation of what events may have occurred. There is
simply no evidence, direct or circumstantial, that Mayor Kilpatrick was involved with plaintiff 's
suspension. Plaintiff did not meet his burden of establishing a genuine issue of material fact for
trial.
Even if plaintiff could establish a genuine issue of material fact with respect to the
Mayor's involvement, Mayor Kilpatrick would enjoy the same governmental immunity as do
Chief Oliver and the city of Detroit. It is undisputed that at the time of the incident, Mayor
Kilpatrick was the Mayor of the city of Detroit, which qualifies him as an elective executive
official under MCL 691.1407(5). As chief executive of the city of Detroit, Mayor Kilpatrick has
the authority to terminate or suspend employees. Therefore, even if the Mayor took some form
of action against plaintiff, of which there is no evidence, he was involved in a governmental
function on behalf of the city of Detroit at the time of the alleged acts and is therefore immune
from plaintiff 's tort allegations.4
Therefore, we reverse the trial court's order denying Chief Oliver and the city of Detroit's
motion for summary disposition based on governmental immunity and remand this case for entry
of a judgment in their favor. In addition, we affirm the trial court's order granting defendant
Mayor Kilpatrick's motion for summary disposition.
Affirmed in part, and reversed and remanded in part. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Henry William Saad
/s/ Bill Schuette
4
Plaintiff also argues that Mayor Kilpatrick is vicariously liable for Chief Oliver's actions under
the doctrine of respondeat superior. Under that doctrine, the master is responsible to third parties
for wrongful acts committed by the servant. Rogers v J B Hunt Transport, Inc, 466 Mich 645,
650-651; 649 NW2d 23 (2002). This argument is flawed. First, the issue of vicarious liability
was not raised before the trial court. Therefore, it has not been preserved for appeal. See
Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). Second, as
discussed earlier, when defendant Chief Oliver suspended plaintiff, he was not committing a
wrongful act. Rather, he was acting squarely within the scope of his authority as chief of police
of the city of Detroit.
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